no cause of such commitment deteyner or restraint being expressed for which by Law he ought to be committed deteyned or restrained and the same be returned upon a Habeas Corpus granted for the said party then he ought to be delivered or bayled All these without one negative that these Acts of Parliament and these Judiciall presidents in affirmance thereof recited by my Colleagues are but declarations of the fundamentall lawes of this Kingdome I shall prove by manifest and legall reasons which are the grounds and mothers of all lawes The first generall reason 1. The first generall reason is drawne are ipsa from imprisonment ex visceribus causae be it those or other imprisonments which is divided into three parts 1. First no man can be imprisoned at the will and pleasure of any but he that is bond and a villaine for that imprisonment at will is tailes luy haut base are propria quarto modo to villaines 2. But if Free-men of England might be imprisoned at the wil and pleasure of the King by his commandment then were they in worse case then bond-men villaines for the lord of a villain cannot command another to imprison his villain without cause as of disobedience or refusing to serve as it is agreed in our Bookes 3. Imprisonment is accounted in law a civil death perdit domum familiam vicinos patriam his house is family his wife his children his neighbours his Country and to live among wretched wicked men 39 H. 6. fo 50. 41. Ed. 3. 9. If a man be threatned to be killed he may avoid a feoffment of lands gift of goods c. So it is if he be threatned to be imprisoned he shall doe the like for that is a civill death The second generall reason Bracton 105. fo 15. The second generall reason is a Minore ad majus paena corporalis est majus qualibet pecuniaria but the King himselfe cannot impose a fine upon any man but it must be done juditially by his Judges per Iusticiar ' in Cur ' non per Regem in Camera 2. R. 3. 11. and so it hath beene resolved by all the Judges of England The third generall reason The third generall reason is drawne from the number and diversity of remedies which the law giveth against imprisonment vizt brevia de Homine replegiande de odio Atia de habeas corpus bre de manucaptiene The two former of these are antiquated but the writ de odio Atia is revived for that was given by the Sat. of Magna Car ' cap. 26. and therefore though it were repealed by the Stat. of 28. Ed. 3 ca 9. yet it is revived by the Stat. of 43. Ed. 3. cap. 1. by which it is provided that all Statutes made against Magna Charta are void now the law would never have given so many remedies if the Freemen of England might have beene imprisoned at Free will and pleasure The fourth generall reason The fourth generall reason is drawne from the extent universality of the pretended power to imprison for it should not extend onely to the Commons of the Realme and their posterity but to the Nobility and their Honourable Progenies to the Bishops and Clergie of the Realme and their Successours to all persons of what condition or sex or age so ever to all Judges Officers c. whose attendance are necessary without exception of any person The fifth generall reason The fifth generall reason is drawne from the indefinitenesse of time the pretended power being limited to no time it may be perpetuall during life The sixth generall reason The sixth generall reason is drawne a dedecore from the losse and dishonour of the English nation in two respects 1. For their valour and power so famous through the whole world 2. For their industry for who will endeavour to imploy himselfe in any profession either of Warre liberall Science or Merchandize if he be but tennant at will of his liberty and no tennant at will will support or improve any thing because he hath no certaine estate and thus it should be both dedecus and damnum to the English nation and it should be no honour to the King to be King of a slaves The seventh generall reason The seventh generall reason is drawne ab utili et inutili for that appeareth by the Stat. of 36 Ed. 3. that the execution of the Statute of Magna Charta 5. Ed. 3. 25. Ed. 3. 28. Ed. 3 are adjudged in Parliament to be for the common profit of the King and of his people and therefore the pretended power being against the profit of the King and of his people can be no part of his prerogative The eighth generall reason The eighth generall reason is drawne a tuto for it is safe for the King to expresse the Cause of the Commitment and dangerous for him to omit it for if any be committed without expressing of the Cause though hee escape albeit the truth be it were for treason or felony yet the escape is neither felony nor treason but if the cause be expressed to be for suspition of treason or felony then if he escape albeit he be innocent it is treaon or felony The last generall reason The last generall reason is drawne from authorities 16. H. 6. Means de fait 182. by the whole Court the King in his presence cannot command one to be arrested but an action of false imprisonment lies against him that arresteth 22. H. 7. 4. Newton 1 H. 7. 4. The opinion of Markham chiefe Justice to Ed. 4. And the reason because the party hath no remedy Fortescue cap. 8. Proprio â—re nullus regum usus est c. to commit any man 4. El. Plo. Com. 236. The Common Law hath so admeasured the Kings Prerogative as he cannot prejudice any man in his inheritance and the greatest inheritance a man hath is the liberty of his person for all others are accessary to it Cicere Major haeredidas venit unicuique nostrum a legibus quam a parentibus 25. Ed. 1. cap. 2. All judgements given against Magna Charta are void Vpon conference with the Lords these objections were made by the Kings Attorney The first objection 1 That the resolutions of the House of Commons were incompatible with a Monarch that must governe by rule of State Rns Whereunto it was answered Quod nihil tam propr ' est imperii quam legibus vivere And againe Attribuat Rex legi quod lex attribuat ei vizt dominationem imperium quia sine lege non potest esse Rex It can be no prejudice to the King by reason of matter of State for if it be for suspition of treason misprision of treason or felony it may be by generall words expressed vizt pro suspitione proditionis c. If it be for any contempt or any other thing the particular cause must be shewed The second objection 2 To blinde those that are
belonged unto them but the Gent. that spake in behalfe of the House of Commons came there bound on the one side by the trust reposed in them by their Country that sent them and on the other side by an oath taken by every of them before hee sit in the House to maintaine and defend the rights and prerogatives of the Crown for even in the point of Confidence alone those of them that speake as retained Counsell by perpetuall Fee and those that by their place being admitted to speake are bound to utter nothing but truth both by such a trust and such an oath were no way to be so compared or counterpoised as if the one were of no more waight then the other Resolution de 34. El. explaine expound For that of the resolution of all the Judges in England in 34. El. It was shewed that plainly it agreed with the resolution of the House of Commons for although indeed it might have beene expressed with more perspicuity yet the words of it as they are sufficiently shew that to them To that purpose besides the words of the whole frame of this resolution of the Judges as it is in the Copie transcribed out of the Lord chiefe Justice Andersons Book written with his owne hand which book was here offered to be shewed in the behalfe of the House of Commons it was observed that the words of the first part of it shew plainly that all the Judges of England then resolved that the prisoners spoken of in that first part of their resolution were onely prisoners committed with cause shewed for they onely say they might not be delâ—vered by any of the Courts without due triall by law and judgement of the acquittall they must be delivered but it is cleare that no triall or acquittall can be had where there is not some cause laid to their charge for which they ought to stand committed Therefore in that part of the resolution such prisoners are onely meant as are committed with cause shewed as which also the Judges expresly in that resolution expresly thought necessary as appeares in the second part of their resolution wherein they have these words If upon the returne of their Habeas Corpus the cause of their commitment be certified to the Judges as it ought to be c. By which words they shew plainly that every returne of a commitment is insufficient that hath not a cause shewed of it And to that which M. Attorney said as if the Cause were sufficiently expressed in generality if the Kings command or the Counsels were expressed in it as if that were meant in the resolution for a sufficient generall cause It was answered that it was never heard of in Law that the power or person that committed the prisoner was understood for the causa captionis or causa detentionis but onely the reason why that power or person committed the prisoner as also in common speech if any man aske why or for what cause a man stands committed the answere is not that such a one committed him but his offence or some other cause is understood in the question and is to be shewed in the Answer but to say that such a one committed the prisoner is an answer onely to the question who committed him and not why or for what canse hee stands so committed That for that of the Copie of the report in 13 Iac. shewed forth by M. Attorney it was answered by the Gent. of the House of Commons that the report it selfe which had beene before seene and perused among many other things at a Committee made by the House was of sleight or no authority for that it was taken by one who was at that time a young Student and as a reporter in the Kings Bench and there was not any other report to be found to agree with it Secondly although the reports of young Students when they take the words of Judges as they fall from their mouthes at the Bench and in the same person and forme as they have spoken may be of good credit yet in this Case there was not one word so reported but in truth there being three cases of a time in the Kings Bench one Rosewells Case Allens and one Saltonstalls case every of which had something of like nature in it the Student having beene present in the Court made up the frame of one report or case out of all three in his owne words and so put it into his Book so that there is not a word in the report but it is framed according to the Students fancie as it is written and nothing is expressed in it as it came from the mouth of the Judges otherwise then as his fancy directed him Thirdly there are in the report plaine falshoods of matter of fact which are to be attributed either to the Judges or to the reporter It is most likely by all reason that they proceeded from the reporters faults and howsoever these matters of falshood shew sufficiently that the credit of the rest is of light value It it said in the report that Harecourt being committed by the Counsell was bayled in 40. El. upon a Privie Seale or a Letter whereas in truth there is no such thing And it is said here that kind of Letters are filed in the Crowne Office whereas in truth there was any such kind of Letters filed there in any case whatsoever that resolution of the Judges in 34. El. is mis-cited there and made in 36. El. And it is said there that by that resolution a Prisoner returned to be committed by the Command of the King might not at all be delivered by the Court whereas no such thing is comprehended in that resolution But that which is of most moment is that howsoever the truth of the report were yet the opinion of the Judges being sudden and without any debate had of the Case is of light moment for in difficult points especially the most grave and learned men living may on the sudden let fall and that without any disparagement to them such opinions as they may will and ought to change upon further inquirie examination and full debate had before them and mature deliberation taken by them Now plainly in that of 13. Jac. there is not so much as a pretence of any debate at the Barre or Bench. All that is reported to have beene is reported as spoken of the sudden And can any man take such a sudden opinion to be of value against such debates and mature deliberations since had of the point And indeed this great point and all circumstances belonging to it hath within this halfe yeare beene so fully examined and searched into that it may well be affirmed that the most learned man whosoever that hath now considered of it hath within that time or might have learned more reason of satisfaction in it then ever before he met with Therefore the sudden opinion of the Judges to the contrary is of no value here which also is to be said by that opinion obliviously delivered in the Commons house in 18. Iac. as Master Attorney objected out of the Journall of the House But besides neither was the truth of that report of that opinion of the Journall any way acknowledged for it was said on the behalfe of the house of Commons that their Journals were for matters of Orders and resolutions of the House of such Authority as that they were as their Records But for any particular mans opinion noted in any of them it was so farre from being of any authority there with them that in truth no particular opinion is at all to be entred in them and that their Clerke offends whenever bee doth to the contrary And to conclude no such opinion whatsoever can be sufficient to weaken the cleare Law comprehended in these resolutions of the House of Commons grounded upon so many Acts of Parliament so much reason of the Common law and so many Presidents of Record and the resolution of all the Judges of England and against which not one Law written or unwritten not one President not one reason hath beene brought that make any thing to the contrary And thus to this purpose ended the next day of the Conference desired by the Lords and had by a Committee of both Houses FINIS
A CONFERENCE DESIRED BY THE LORDS AND HAD by a Committee of both Houses CONCERNING THE RIGHTS AND PRIVILEGES of the Subjects Discoursed by Sir DUDLEY DIGGES Sir EDWARD LITTLETON Knight now Lord Keeper Master SELDEN Sir EDWARD COOKE With the Objections by Sir Robert Heath Knight then Attorney Generall and the Answers 3o. Apr. 4. Car. 1628. LONDON Printed by A. N. for Mathew Walbancke and Richard Best and are to be sold at their shops at Graies-Inne Gate 1642. THE INTRODVCTION Sir Dudley Diggs MY LORDS I Shall I hope auspiciously begin this Conference this day with an observation out of the holy Story 2. Chro. Cha. 34. in the dayes of good King Iosiah when the Land was purged of Idolatrie and the great men went about to repaire the house of God while money was sought for there was found a Booke of the Law which had beene neglected 2 Kings Cha. 22. and afterwards being presented to the good King procured the blessing which your Lordships may reade in the Scriptures My good Lords I am confident your Lordships will ascheerefully joyne with the Commons in acknowledgement of Gods great blessing in our good King Iosiah as the Knights Citizens and Burgesses of the House of Commons by mee their unworthiest servant doe thankfully remember your most religiously and truly honourable invitation of them to the late Petition for cleansing this Land from Popish abominations which I may truly call a necessary and a happy repairing of the house of God and to goe on with the parallel whilst we the Commons out of our good affections were seeking for money we found I cannot say a booke of the Law but many and fundamentall points thereof neglected and broken which hath occasioned our desire of this conference wherein I am first commanded to shew unto your Lordships in generall that the Lawes of England are grounded on reason more ancient then bookes consisting much in unwritten customes yet so full of Justice and true equitie that your most Honourable Predecessors and Ancestours propugned them with a nolumus mutari and so ancient that from the Saxon dayes notwithstanding the Injuries and ruines of time they have continued in most parts the same as may appeare in old remaining Monuments of the Lawes of Ethelbert the first Christian King of Kent Jna the King of the West Saxons Offer of the Mertians and of Alfred the great Monarch who united the Saxon Heptarchie whose lawes are yet to bee seene published as some thinke by Parliament as he sayes to that end Vt qui sub uno rege sub una lege regeâ—entur And though the Booke of Litchfield speaking of the times of the Danes sayes that then Ius sopitum erat in regno leges consuetudines sopitae sunt and prava voluntas vis violentia magis regnabant quam judicia vel justitia yet by the blessing of God a good King Edward commonly called St. Edward did awaken those lawes and as the old words are Excitatas reparavit reparatas decoravit decoratas confirmavit Which confirmavit shewes that good King Edward did not give those Lawes which William the Conquerour and all his Successours since that time have sworne unto And here my Lords by many Cases frequent in our moderne Lawes strongly concurring with those of the ancient Saxon Kings I might if time were not more pretious demonstrate that our Lawes and Customes were the same I will only intreat your Lordships leave to tell you that as we have now even in those Saxon times they had their Court Barons and Court Leets and Sheriffs Courts by which as Tacitus sayes of the Germanes their Ancestours Jura reddebant per pagos vicos and I doe beleeve as wee have now they had their Parliaments where new lawes were made cum consensu Praelatorum magnatum totius communitatis or as another writes cum consilio praelatorum nobilium sapientium laicorum I will adde nothing out of Glanvile that wrote in the time of H. 2. or Bracton that writ in the dayes of H. 3. only give me leave to cyte that of Fortescue the learned Chancellour to H. 6. who writing of this Kingdome sayes Regnum istud moribus nationum Regum temporibus eisdem quibus nunc Regitur legibus consuetudinibus regebatur But my good Lords as the Poet said of Fame I may say of our common Law Ingrediturque solo caput inter nubila condit Wherefore the cloudy part being mine I will make hast to open way for your Lordships to heare more certaine Arguments and such as goe on more sure grounds Be pleased then to know that it is an undoubted and fundamentall point of this so antient common law of England that the Subject hath a true property in his goods and poffessions which doth preserve as sacred that Meum tuum that is the nurse of Industry and mother of Courage and without which there can be no Justice of which Meum tuum is the proper object But the undoubted birth-right of Free Subjects hath lately not a little beene invaded and prejudiced by pressures the more grievous because they have beene pursued by imprisonment contrary to the Franchises of this Land and when according to the Lawes and Statutes of this Realme redresse hath beene sought for in a legall way by demanding Habeas Corpus from the Judges and a discharge or triall according to the law of the Land successe hath failed that now inforceth the Commons in this present Parliament assembled to examine by Acts of Parliament presidents and reasons the truth of the English Subjects libertie which I shall leave to learned Gentlemen whose learned Arguments I hope will leave no place in your Lordships memories for the errours and infirmities of your humblest servant that doth thankfully acknowledge the great favour of your Honourable and patient Attention Sir Edward Littletons Argument The Argument made by the Command of the house of Commons out of Acts of Parliament and authorities of Law expounding the same at the first Conference with the Lords concerning the libertie of the person of every Free-man Mr. Littleton MY LORDS VPon the occasions delivered by the Gentleman your Lordships have heard the Commons have taken into their serious consideration the matter of personall libertie and after long debate thereof on divers dayes as well by solemne Arguments as single propositions of doubts and answers to the end no scruple might remaine in any mans brest unsatisfied they have upon a full Search and cleare understanding of all things pertinent to the question unanimously declared That no Free-man ought to bee committed or restrained in prison by the command of the King or Privie Counsell or any other unlesse some cause of the commitment detainer or restraint bee expressed for which by law hee ought to bee committed detained or restrained And they have sent mee with other of their members to represent unto your Lordships the true grounds of their resolution and have charged me
death without he be brought in answer by due Proces of law Here your Lordships see the usuall words of The law of the Land are rendred by Due Proces of the law 36. Ed. 3. Rot. parliament numero 9. 36. E. 3. Rot. Parliam nu 9. Peticion del Commons Amongst the Petitions of the Commons one of them being translated into English out of French is thus First that the great Charter and the Charter of the Forrest and other Statutes made in the time of his Progenitors for the profit of him and his Comonaltie be well and firmly kept and put in due execution without putting disturbance or making arrest contrary to them by speciall command or in other manner Rns al peticion The Answer to the Petition which makes an Act of Parliament Our Lord the King by the Assent of the Prelates Dukes Earles Barons and the Commonaltie hath ordained or established that the said Charters and Statutes bee held and put in execution according to the said Petition It is observable that the Statutes were to be put in execution according to the said Petition which is that no arrest should bee made contrary to the Statutes by speciall command This concludes the question and is of as great force as if it were printed for the Parliament roll is the true warrant of an Act and many are omitted out of the bookes that are extant in the Roll. 36. Ed. 3. Rot. Parliamenti num 22. 36. Ed 3. Rot. parl num 22. Peticion d' Commons explaineth it further for there the Petition is Item as it is contained in the grand Charter and other Statutes that no man be taken or imprisoned by speciall command without Inditement or other due Proces to be made by the law and oftentimes it hath beene and yet is many are hindred taken and imprisoned without Inditement or other Proces made by the Law upon them as well of things done out of the Forrest of the King as for other things that it would please our said Lord to command those to bee delivered which are so taken by speciall command against the forme of the Charter and Statutes as aforesaid Rns al Peticion The answer is St. 27. Ed 3. ca. 18. The King is pleased that if any man find himselfe grieved that he come and make his complaint and right shall be done unto him 37 Ed. 3. cap. 8. agreeth in substance with them it saieth Though it be contained in the great Charter that no man be taken nor imprisoned nor put out of his Freehold without Proces of the law Neverthelesse divers people make false suggestions to the King himselfe as well for malice as otherwise whereof the King is often grieved and divers of the Realme put in dammage against the forme of the same Charter Wherefore it is ordained that all they which make Suggestions shall be sent with the same Suggestions to the Chancellour Treasurer and his grand Counsell and that they there find suretie to pursue their Suggestions and incurre the same paine that the other should have had if he were attainted in case that the Suggestion be found evill and that then Proces of law be made against them without being taken or imprisoned against the forme of the said Charter and other Statutes here the law of the Land in the grand Charter is explained to be without Proces of law Sta. 42. Ed. 3. ca. 13. 42. Ed. 3. cap. 13. At the request of the Commons by their Petition put forth in this Parliament to eschew mischiefe and dammage done to divers of his Commons by false accusers which oftentimes have made their accusasions more for revenge and singular profit then for the profit of the King or of his people which accused persons Some have beene taken and caused to come before the Kings Counsell by Writ and otherwise upon grievous paines against the Law It is assented and accorded for the good governance of the Commons that no man be put to answer without presentment or matter of record or by due Proces and Writ originall according to the old law of the Land And if any thing from hence bee done to the contrary it shall be void in the Law and holden for Error Sta. 42. Ed. 3. Rot. Parliam num 12. But this is better in the Parliament roll where the Petition and answer which make the Act are set downe at large 42. Ed. 3. Rot. Parliamenti numero 12. Peticion des Cōmons The Petition Item Because that many of your Commons are hurt and destroyed by false accusers who make their accusations more for their revenge and particular gaine then for the profit of the King or of his people And those that are accused by them some are taken and others are made to come before the Kings Counsell by Writ or other commandement of the King upon grievous paines contrary to the Law That it would please our Lord the King and his good Counsell for the just government of his people to ordaine that if hereafter any accuser purpose any matter for the profit of the King that the same matter be sent to the Iustices of the one bench or of the other or the Assises to be inquired and determined according to the Law and if it concerne the Accuser or party that he take his Suit at the common law and that no man bee put to answer without presentment before Iustices or matter of Record and by due Proces and originall Writ according to the ancient law of the Land And if any thing henceforward bee done to the contrary that it bee void in law and held for error Here by due Proces and originall Writ according to the ancient Law of the Land is meant the same thing as per legem terrae in Magna Charta and the abuse was they were put to answer to the commandement of the King Rns al petition The Kings Answer is thus Because that this Article is an Article of the grand Charter the King willeth that this bee done as the Petition doth demand By this appeareth that per legem terrae in Magna Charta is meant by due Proces of the Law Obi. hors d' l' Sta. de Westm 1. cap. 15. Thus your Lordships have heard act of Parliament in the point But the Statute of Westminst 1. cap. 15. is urged to disprove this opinion where it is expresly said Que ne sont repleviseable que sont commit per le command le Roy. that a man is not repleviseable who is committed by the command of the King therefore the Command of the King without any cause shewed is sufficient to commit a man to prison And because the strength of the Argument may appeare and the Answer bee better understood I will reade the words of the Statute which are thus Les parols d' Sta. And forasmuch as Sheriff and others which have taken and kept in prison persons detected for Felonie and oftentimes have let out
he renders taken by the command of of the Justices thus per judicium Justiciariorum and his Preface to the Statute plainly sheweth that he understood it of replevine by Sherifs for he saith Qui debent per plegios hoc dimitti qui non declarat hoc Statutum and per plegios is before the Sherife But for direct authority 22. H. 6. 46. ê‘ Newton Chiefe Iustice it is the opinion of Newton Chiefe Justice 22. H. 6 46. where his words are these It cannot be intended that the Sherife did suffer him to goe at large by Mainprise for where one is taken by the Writ of the King or the Commandement of the King he is irrepleviseable but in such case his friends may come to the Justices from him if he be arrested and purchase a Supersedeas This Judge concludes that the Sherife cannot deliver him that is taken by the command of the King for that he is irrepleviseable which is the very word of the Satute but saith he his friends may come to the Justices and purchase a Supersedeas So he declares the very question that the Sherife had no power but the Justices had power to deliver him that is committed by the Kings command and both the ancient and moderne practise manifest as much for he that is taken for the death of a man or for the Forrest is not repleviable by the Sherife yet they are ordinarily bayled by the Justice and were by the Kings Writs directed to the Sherifs in the times of Ed. 1. and 2. as appeares in the close rolls which could not be done if they were not baylable And it is every dayes experience that the Justices of the Kings Bench doe bayle for Murther and for offences done in the Forrest which they could not doe if they were irrepleviseable if Westminst 1. were meant of the Justices aswell as of the Sherifs For authorities that have beene offered to prove the contrary are in number three the first is 21. Ed. 3. Rot. 2. which also is in the Booke of Pleas in Parliament at the Tower upon an action there brought fol. 44. It is not an Act of Parliament but a resolution in Parliament upon an action there brought which was usuall in those times And the case is that Stephen Rabaz the Sherife of the Counties of Leicester and Warwicke was questioned for that he had let at large by Surety amongst others one William the sonne of Walter le Pesons against the will and command of the King whereas the King had commanded him by Letters under the Privie Seale that he should doe no favour to any man that was committed by the Earle of Warwicke as that man was whereunto the Sherife answered that he did it at the request of some of the Kings houshold upon their Letters and because the Sherife did acknowledge the receipt of the Kings Letters thereupon he was committed to prison according to the forme of the Statute To this I answer the Sherife was justly punished for that he is expresly bound by the Statute of Westminst 1. which was agreed from the beginning but this is no proofe that the Iudges had no power to bayle this man The next Authority is 33. H. 6. in the Court of Common Pleas fo 28. b. 29. where Sobert Poyning Esquire was brought to the Barre upon a Capias and was returned that he was committed Per Duos de Consilio which is strongest against what I maintaine pro diversis causis regem tangent and he made an Attorney there in an action whence it 's inferred that the returne was good and the party could not be delivered To this the answer is plaine First no opinion is delivered in that booke one way or other upon the returne neither is there any testimony whether he were delivered or bayled or not 2. It appeares expresly that he was brought thither to be charged in an action of debt at another mans suit and no desire of his owne to bee delivered or bayled and then if hee were remanded it is in no way materiall to the question in hand But that which is most relied upon is the opinion of Stan. in his Booke of Pleas of the Crowne lib. 2. cap. 18. fol. 72. 73. in his Chapter of Mainprise where hee reciteth the Statute of Westminst 1. cap. 15. and then saith thus Rns al Obi. hors de Stan. pl. Cor ' 72. By this Statute it appeares that in foure cases at the Common law a man was not repleaviable to wit those that were taken for the death of a man by the command of the King or his Justices or for the Forrest thus farre he is most right then hee goeth on and saith as to the command of the King that is understood by the command of his owne mouth or his counsell which is incorporated unto him and speake with his mouth or otherwise every Writ or Capias to take a man which is the Kings command would be as much and as to the command of the Juces that is meant their absolute commandment for if it bee by their ordinary commandment he is repleviable by the Sherife if it be not in some of the cases prohibited by the Statute The answer that I give unto this is that Stanford had said nothing whether a man may be committed without cause by the Kings command or whether the Judges ought not to bayle him in such Case only that such a one is not repleviseable which is agreed for that belongs to the Sherife And because no man should thinke he meant any such thing hee concludes the whole Sentence touching the Command of the King and the Justices that one committed by the ordinary command of the Justice is repleviseable by the Sherife or at least it appeares not that he meant that a man committed by the King or by the Privie Counsell without cause should not be bayleable by the Justices and he hath given no opinion in this case what he would have said if he had beene asked the question cannot be knowne neither doth it appeare that by any thing that hee hath said hee meant any such thing as would bee inferred out of him And now my Lords I have performed the Commands of the Commons and as I conceive shall cleare the Declaration of personall libertie an antient and undoubted truth fortified with seven Acts of Parliament and not opposed by any Statute or authoritie of law whatsoever The objections of the Kings Counsell with like answers made thereunto at the two other Conferences touching the same matter IT was agreed by the Attorney generall that the 7. Statutes urged by the CoÌ„mons were in force and that magna Charta did extend most properly to the King but he said 1. Object 1. That some of them are in generall words and therefore conclude nothing but are to be expounded by the Presidents and others that bee more particular are applied to the Suggestions of Subjects and not to the Kings command simply of
it selfe Le Rns Hereunto it was answered that the Statutes were as direct as could bee which appeareth by the reading of them and that though some of them speak of Suggestions of the Subjects yet others do not and they that doe are as effectuall for that they are in equall reason a commitment by the command of the King being of as great force when it moveth from a Suggestion from a Subject as when the King taketh notice of it himselfe the rather for that Kings seldome intermeddle with matters of this nature but by information from some of their people 2. Object 2. Master Attorney objected that per legem terrae in Magna Charta which is the foundation of this question cannot be understood for Proces of the Law and originall Writs for that in criminall proceedings no originall Writ is used at all But every Constable either for Felonie or breach of the Peace or to prevent the breach of the Peace may commit without Proces or originall Writ and it were hard the King should not have the power of a Constable And the Statute cyted by the Commons make Proces of the Law and Writ originall to be all one Le Rns The answer of the Commons to this Objection was that they doe not intend originall Writs only by the Law of the Land but all other legall Proces which comprehends the whole proceedings of Law upon cause other then triall by Jury Judicium parium unto which it is opposed thus much is imported ex vi termini out of the word Proces and by the true acceptation thereof in the Statutes which have beene used by the Commons to maintaine their Declaration and most especially the Statutes of 25. Ed. 3. cap. 4. where it appeareth that a man ought to be brought in to answer by the course of the Law having former mention of Proces made by originall Writ And in 28. Ed. 3. cap. 3. by the course of the Law is rendred by the due Proces of the Law And 36. Ed. 3. Rot. Parliamenti numero 20. The Petition of the Commons saith that no man ought to bee imprisoned by speciall command without Inditement or other due Proces to bee made by the Law 37. Ed. 3. cap. 18. calleth the same thing Proces of the Law and 42. Ed. 3. cap. 3. stileth it by due Proces and Writ originall where the conjunctive must be taken for a dis-junctive which charge is ordinary to an exposition of Statutes and Deeds to avoid inconveniences to make it stand with the rest and with reason as it may be collected by the law of the Land in Magna Charta by the course of the Law in 25. Ed. 3. by the due Proces of Law in 28. Ed. 3. other due Proces to bee made by the Law in 36. Ed. 3. Proces of the Law in 37. Ed. 3. and by due Proces and Writ originall in 42. Ed. 3. are one and the same thing the later of these Statutes referring alwayes to the former and that all of them import any due and regular proceedings of law upon a cause other then the triall by Jurie And this appeareth 10. Rep. 74. in the Case of the Marshalsea and 11. Rep. 99. James Baggs Case where it is understood of giving Jurisdiction by Charter or prescription which is the ground of a proceeding by course of law And in Seldens Notes on Fortescue fol. 29. where it is expounded for Law wager which is likewise a tryall by law by the oath of the parties differing from that by Jurie And it doth truly comprehend these and all other regular proceedings in law upon cause which gives authoritie to the Constable to arrest upon cause And if this be not the true exposition of these words per legem terrae the Kings Counsell were desired to declare their meaning which they never offered to doe and yet certainly these words were not put into the Statute without some intention of consequence 3. Objection And thereupon Mr. Serjant Ashley offered an interpretation of them thus namely that there were divers Lawes of this Realme as the Common law the law of the Chancery the Ecclesiasticall law the law of the Admiraltie or Marine law the law of Merchants the Marshall law and the law of State and that these words per legem terrae doe extend to all these Lawes Rns a ceo To this it was answered that wee read of no law of State and that none of these Lawes can bee meant there save the Common law which is the principall and generall Law and is alwayes understood by the way of Excellencie when mention is of the law of the Land generally and that though each of the other Lawes which are admitted into this Kingdome by Custome or Act of Parliament may justly be called a law of the Land yet none of them can have the preheminence to be stiled the Law of the Land And no Statute Law booke or other authority printed or unprinted could be shewen to prove that the Law of the Land being generally mentioned was ever intended of any other then the Common Law and yet even by these other Lawes a man may not be committed without a cause expressed But it standeth with the rule of other legall expositions that per legem terrae must be meant the Common Law which is the generall and universall Law by which men hold their Inheritances and therefore if a man speake of Escuage generally it is understood as Littleton observeth Sect. 99. of the incertaine Escuage which is a Knights service tenure for the defence of the Realme by the body of the tenant in time of warres and not of a certaine Escuage which giveth only a contribution in money and no personall service And if a Statute speak of the Kings Courts of Record it is meant only of the 4. at Westminster by way of excellencie 6. Rep. 20. Gregories Case So the Canonists by the Excommunication simply spoken doe intend the greater excommunication And the Emperour in his Institutions saith that the Civill Law being spoken generally is meant of the Civill law of Rome though the Law of every City is a Civill Law as when a man names the Poet the Graecians understand Homer the Latinists Virgil 2. Admit per legem terrae extend to all the Lawes of the Land yet a man must not be committed by any of them but by the due proceedings that are executed by those Lawes and upon a cause declared 4. Object Againe it was urged that the King was not bound to expresse a cause of imprisonment because there may be in it matter of State not fit to be revealed for a time lest the confederates thereupon make meanes to escape the hands of Justice And therfore the Statute cannot be intended to restrain all commitments unlesse a cause be expressed for that it would be very inconvenient and dangerous to the State to publish the Cause at the very first Le Rns Hereunto it was
replied by the Cōmons that all danger and inconvenience may be avoided by declaring a generall Cause as for Treason suspition of Treason misprision of Treason or felonie without specifying the particular which can give no greater light to a confederate then will bee conjectured by the very apprehension upon the imprisonment if nothing at all were expressed 5. Object It was further alledged that there was a kind of contradiction in the position of the House of Commons when they say a party committed without a cause shewed ought to be delivered or bayled Bayling being a kind of imprisonment deliverie a totall freeing Le Rns To this it hath beene answered that it hath alwayes beene the discretion of the Judges to give so much respect to a commitment by the Command of the King or the Privie Councell which are ever intended to be don in just and weighty causes that they will not presently let them free but bayle them to answer what shall be objected against them on his Majesties behalfe but if any other inferiour Officer doe commit a man without shewing cause they doe instantly deliver him as having no cause to expect their leasure So the delivery is applied to an imprisonment by the command of some meane minister of Justice Bayling when it is done by the command of the King or his Counsell 6. Object It was urged by Mr. Attorney that Bayling is a grace and favour of a Court of Justice and that they may refuse to doe it Le Rns This was agreed to be true in divers cases as where the cause appears to be for felony or other crimes expressed for that there is another way to discharge them in convenient time by their triall and yet in these cases the constant practise hath beene anciently and modernly to bayle men but where no cause of the imprisonment is returned but the Command of the King there is no way to deliver such persons by triall or otherwise but that of the Habeas Corpus And if they should be then remanded they might be perpetually imprisoned without any remedy at all and consequently a man that had committed no offence might be in worse case then a great offender for the later should have an ordinary tryall to discharge him the other should never be delivered 7. Objection It was further said that though the Statute of Westminster 1. cap. 15. be a Statute which by way of provision did extend only to the Sherife yet the recitall of that touching the foure causes wherein a man was not repleviseable at the common law namely those that were committed for the death of a man by the command of the King or of his Justices or for the Forrest did declare that the Justices could not bayle such a one and that repleviseable and bayleable were Synomina all one and that Stanford a Judge of great authoritie doth expound it accordingly Stan. pl. Cor. 72. and that neither the Statute nor he say repleviseable by the Sherife but generally without restraint And that if the chiefe Justice committed a man hee is not to be inlarged by any other Court as appeareth in the Register Le Rns To this it was answered That the recitall of the body of the Statute relateth only to the Sherife only as appeareth by the very words 2. That Repleviseable is to the Sherife for that the word imports no more but a man committed by the chiefe Justice is bayleable by the Court of Kings Bench. 3. That Stanford meaneth all of the Sherife or at least hee hath not sufficiently expressed that he intended the Justices 4. It was denied that Repleviseable and bayleable was the same for they differ in respect of the place where they are used bayle being in the Kings Court of record Repleviseable before the Sherife and they are of severall natures repleviable being a letting at large upon suretie bayling being when one traditur in Balliv the bayle are his Iaylors and may imprison him and shall suffer body for body which is not of replevying by Sureties and differeth from Mainprise in this Diversitie enter bayle mainprise Mainprise is an undertaking in a some certaine Bayling to answer the condemnation in Civill causes and for criminall body for body And the reasons and authorities in the first Conference were then renewed and no exceptions taken to any save that in 22. H. 6. it doth not appeare that the command of the King was by his mouth which must be intended or by his Counsell which is all one as is observed by Stanford for the words are that a man is not repleviseable by the Sherife who is committed by the Writ or the commandment of the King 21. Ed. 1. Rot. 2. Dors was Cyted by the Kings Counsell that it was answered that it concerned the Sherife of Leicester shire only and not the power of the Iudges 33. H. 6. the Kings Attorney confessed was nothing to the purpose and yet that Booke hath beene usually cited by those that maintaine the contrary to the Declaration of the Commons And therefore such sudden opinions as have been given thereupon are not to be regarded the foundation failing And where it was said that the French of 36. Ed. 3. Rot. parliamenti numero 9. which can receive no answer did not warrant what was inferred thence but that these words Sauns disturbance mettre ou arrest fair le contre per special mandement ou autre mannere must bee understood that the Statute should be put in execution without putting disturbance or making arrest to the contrary by speciall command or in other manner The Commons did utterly denie the interpretation given by the Kings Counsell and to justifie their owne did appeale to all men that understood the French and upon the 7. Statutes did conclude that their Declaration remained an undoubted truth not controlled by any thing said to the contrary Sir Edward Littletons Presidents The true Copies of the Records not printed which were used on either side of that part of the Debate Inter Record Domini Regis Caroli in Thesaurario Recept Scacarij sui sub custodia Thesaurar Camerar ibidem remanent viz. pl. Coram ipso Domino Rege consilio suo ad Parliamentum suum post Pasch apud London in Maner ' Arch-Episcopi Ebor ' Anno Regni Domini Regis Ed. 3. 21. inter alia sic continetur ut sequitur Rot. 2. indorso STephanus Rabaz Vicecomes Leic. Warw. coram ipso Domino Rege ejus Concilio arenatus ad Rudom positus de hac quod cum I. B. E. H. W. H. nuper balliv ' ipsius Vicecomitis per Dom. Regem fuissent assign ' ad Gaolas Domini Regis deliberand eidem vic' quendam W. P. per quendam appellatorem ante adventum eorum Justiciariorum ibidem appellat capt vivente ipso appellatore usque diem deliberationis coram eis fact demissat per pleviam contra formam Statuti
law divers remedies for inlarging of a Free-man imprisoned as the writts of Odio Atia and of Homine replegiando besides the common or most knowne Writs of Habeas Corpus or Corpus cum causa as it is called also The first two Writs are to be directed to the Sherifs of the County and lie in some particular Cases with which it would be untimely for me to trouble your Lordships because they concerne not that which is committed to my charge But that Writ of Habeas Corpus or Corpus cum causa is the highest remedie in Law for any man that is imprisoned and the only remedie for him that is imprisoned by the speciall command of the King or the Lords of the Privie Counsell without shewing cause of the commitment neither is there in the law any such thing nor was there ever mention of any such thing in the Lawes of this Land as a Petition of right to be used in such cases for libertie of the person nor is there any legall course for inlargement to be taken in such cases howsoever the contrary hath upon no ground or colour of law beene pretended Now my Lords if any man be so imprisoned by any such command or other wise in any prison whatsoever through England and desire by himselfe or any other in his behalfe this Writ of Habeas Corpus for the purpose in the Court of the Kings Bench the Writ is to be granted to him and ought not to be denied him no otherwise then another ordinary originall Writ in the Chancery or other common Proces of law may be denied which amongst other things the House resolved also upon mature deliberation and I was commanded to let your Lord sh know so much This Writ is directed to the Keeper of the Prison in whose custodie the prisoner remaines commanding him that after a certaine day he bring in the body of the prisoner ad Subiiciend recipiend juxta quod curia conceda verit c. una cum causa Captionis detentionis and oftentimes una cum causa detentionis only captionis being omitted The Keeper of the prison therupon returns by what warrant he detaines the prisoner and with his returne filed to his Writ brings the prisoner to the Barre at the time appointed When the returne is thus made the Court judgeth of the sufficiency or insufficiency of it only out of the body of it without having respect to any other thing whatsoever that is they to suppose the returne to be true whatsoever it be if it bee false the prisoner may have his action on the Case against the Gaoler that brought him Now my Lords when the prisoner comes thus to the Barre if he desire to be bayled and that the Court upon the view of the returne thinke him in Law to bee bayleable then he is alwayes first taken from the keeper of the Prison that brings him and committed to the Marshall of the Kings Bench and afterwards bayled and the entry perpetually is Committitur Mariscallo postea traditur in Ball ' for the Court never bayles any man untill he first become their owne prisoner and be in Custodia Marriscall ' of that Court But if upon the return of the Habeas Corpus it appeare to the Court that the prisoner ought not to be bayled nor discharged from the prison whence he is brought then he is remanded or sent back againe there to continue untill by course of law he may be delivered and the entrie in this Case is Remittitur quousque secundum legem deliberatus fuerit or Remittitur quousque c. which is all one and the highest award or judgement that ever was or can be given upon a Habeas Corpus But if the Judges doubt only whether in Law they ought to take him from the prison whence he came or give a day to the Sherife to amend his Writ as often they doe then they remaund him only during the time of their doubte or untill the Sherife hath amended his returne and the Entrie upon that is Remittitur only or Remittitur prisonae praed without any more And so remittitur generally is of farre lesse moment in the award upon the Habeas Corpus then remittitur quousque c. howsoever the vulgar opinions raised out of the late Judgement be to the contrary All these things are of most knowne and constant use in the Court of Kings Bench as it cannot be doubted but your Lordships will easily know from the grave and learned my Lords the Judges These two courses the one of the entrie of Committitus Marescall postea traditur in Ballium and the other remittitur quousque c. Remittitur generally or Remittitur prisonae pred together with the nature of the Habeas corpus thus stated it will bee easier for me to open and your Lordships to observe whatsoever shall occurre to the purpose in the Presidents of record to which I shall come now in the particular But before I am come to the Presidents I am to let you know the resolutions of the house of Commons touching the inlargement of a man committed by the command of the King or the Privie Counsell or any other without cause shewed of such commitment it is thus That if a Freeman be committed or detained in prison or otherwise restrained by the command of the King the Privie Counsell or any other and no cause of such commitment deteiner or restraint to be expressed for which by law he ought to be committed detained or restrained and the same be returned upon a Habeas Corpus granted for the party then he ought to be delivered and bayled This resolution as it is grounded upon the Acts of Parliament already shewen and the reason of the law of the Land which is committed to the charge of another and anon also to be opened to you is strengthened also by many Presidents of Record But the Presidents of Record that concerne this point are of two kinds for the House of Commons hath informed it selfe of such as concerne it either way The first such as shew expresly that persons committed by the command of the King or of the Privie Counsell without other cause shewed have beene inlarged upon bayle when they prayed it whence it appeareth cleerely that by the law they are bayleable and so by Habeas Corpus to bee set at libertie for though they ought not to have beene committed without a cause shewed of the commitment yet it is true that the reverend Judges of this Land did such respect to such commitments by the command of the King or of the Lords of the Counsell as also to the commitment sometimes of inferiour persons that upon the Habeas Corpus they rarely used absolutely to discharge the persons instantly but only to enlarge them upon Bayle which sufficiently secures and preserves the liberty of the Subject according to the lawes that your Lordships have already heard nor in any of the cases
is there any difference made betweene such cōmitments by the Lords of the Counsel that are incorporated with him The second kind of Presidents of Record are such as have beene pretended to prove the law to bee contrary and that persons so committed ought not to be set at libertie upon bayle and are in the nature of Objections out of Record I shall deliver them summarily to your Lordships with all faith and also true Copies of them out of which it shall appeare cleerely to your Lordships that of those of the first kind there are no lesse then 12. most full and directly in the point to prove that persons so committed are to be delivered upon bayle and amongst those of the other kind there is not so much as one not one that proves at all any thing to the contrary I shall first my Lords goe through them of the first kind and so observe them to your Lordships that such scruples as have beene made upon them by some that have excepted against them shall bee cleered also according as I shall open them severally Pasc 18. Ed. 3. Bildestons Case The first of the first kind is of Ed. 3. time it is in Pasche 18. Ed 3. Rot. 33. The Case was thus King Ed. 3. had committed by Writ and that under his great Seale as most of the Kings commands in those times were one Iohn de Bildeston a Clergie man to the prison to the Tower without any cause shewed of the commitment The Lievtenant of the Tower is commanded to bring him to the Kings Bench where he is commited to the Marshall but the Court askes of the Lievtenant if there were any cause to keep this Bildeston in prison besides that commitment of the King he answered no whereupon the Roll sayes Quia videtur cur bre praed sufficient non esse causam praed Iohan de Bildeston in prisona Dom Regis hic detinend ' idem Iohannes admittitur per manucaptionem Willielmi de Wakefield and some others where the Judgement of the point is fully declared in the very point 22. H. 8. Parkers Case The second in the first kind of Presidents of Record is in the time of H. 8. one Iohn Parkers Case who was committed to the Sherife of London pro securitate pacis at the suite of one Brinton ac pro suspitione feloniae committed by him in Glocestershire ac per mandatū Dom. Rs. he is committed to the Marshall of the Kings Bench postea isto eodem termino traditur in Ball ' here were other causes of the commitment but plainly one was by the command of the King signified to the Sherife of London of which they tooke notice but some have interpreted this as if the commitment had beene for suspition of felonie by the command of the King in which case it is agreeable of all hands that the Prisoner is bayleable but no man can thinke so of this president that observes the context and understands the Grammar of it wherein most plainly ac per mandatū Dom. Regis hath no reference to any other cause whatsoever but is as a single Cause enumerated in the returne by it selfe as the Record cleerely sheweth it is in 22. H. 8. Rot. 37. 35. H. 8. Bincks Case The third is of the same Kings time it is 35. H. 8. Rot. 33. Iohn Bincks Case he was committed by the Lords of the Counsell pro suspitioniae feloniae ac pro aliis causis illos moventibus qui committitur Mariscallo immediate ex gratia curiae speciali traditur in Ball ' They committed him for suspition of felonie and other causes them thereunto moving wherein there might be matter of State or whatsoever else can be supposed and plainly the cause of their commitment is not expressed yet the Court bayled him without having regard to these unknowne causes that moved the Lords of the Counsell But it is indeed some difference from either of those other 2. that precede and from the other 9. also that follow for it is agreed that if a cause be expressed in the returne insomuch that the Court can know why he is committed that then he may be bayled but not if they know not the cause now a man is committed for a cause expressed pro aliis causis Dominos de Consilio moventibus certainly the Court can no more know in such a case what the cause is then any other 2. 3. P Mar. Overtons Case The fourth of these is in the time of Queene Mary it is Pasche 2. 3. P. Mar. Rot. 58. Overtons Case Richard Overton was returned upon a Habeas Corpus directed to the Sherifes of London to have beene committed to them and deteyned per mandatum pranobilium Dominorum honorabilis consilij Dominorum Regis Reginae Qui committitur Marr. immediate traditur in Ball ' In answer to this President or by way of objection to the force of it It hath beene said that this Overton at this time stood indicted of high treason It is true he was so indicted but that appeares in another Roll that hath no reference to the returne as the returne hath no reference to that Roll yet they that object this against the force of this President say that because he was Indicted of Treason therefore though he were committed by the Command of the Lords of the Counsell without cause shewed yet he was bayleable for the Treason and upon that was here bayled Then which objection nothing is more contrary either to law or common reason It is most contrary to law for that cleerely every returne is to be adjudged by the Court out of the body of it selfe and not by any other collaterall or forraigne Record whatsoever Therefore the matter of Indictment here cannot in law be cause of bayling of the Prisoner And so it is averse to all common reason that if the objection be admitted it must of necessitie follow that whosoever shall be committed by the King or the Privie Counsell without cause shewed and bee not indicted of Treason or some other offence may not be inlarged for by reason of supposition of matter of State But that whosoever is so committed and withall stands so indicted though in another Record may bee inlarged whatsoever the matter of State be for which he was committed The absurditie of which assertion needs not a word for further confutation as if any of the Gent. in the last judgement ought to have beene the sooner delivered if hee had beene also Indited of Treason if so Traitours and Fellons have the highest priviledge in personall libertie and that above all other Subjects of the Kingdome 4. 5. Phil. Mar. Newports Case The fifth of this kind is of Queene Maries time also it is Pasch 4. 5. P. Mar. Rot. 45. the Case of Edward Newport hee was brought into the Kings Bench by Habeas Corpus out of the Tower of London Cum causa vizt
the prisoner was not committed by the immediate command of the King but by the command of the Lord Chamberlaine and thence as it was said they made this rule but this kind of interpretation is the first that ever was supposed that Judges should take notice of the truth or falshood of the return otherwise then the body of the returne could informe them And the rule it selfe speakes plainly of them sufficiencie onely and not of the truth or falshood of it Emersons Case The seventh of these is the case of Iames Desmaistres Edward Emerson and some others that were brewers and were committed to the Marshalsea of the Houshold per mandat Dom. Regis and so returned upon habeas corpus and it is true that the roll shewes that they were remanded but the remanding was onely upon advisement and indeed the grave and upright Judges of the time were so carefull least upon the entry of the remanding any such mistake might be as might perhaps mislead posterity in so great a point that they would expresly have this word immediate added to the Remittitur that so all men that should meet with the roll might see that it was done for the present onely and not upon any debate of the question And besides that there is no quousque to it which is usually added when the highest award upon debate or resolution of this kind is given by them 12. Iam Sir Samuel Saltonstalls Case The eighth of these is the Case of Saltonstall it is Hill 12. Iac. Sir Samuel Saltonstall was committed to the Fleet per mandatum Dom. Regis and besides by the Court of Chauncery for disobeying an order of that Court and is returned upon his habeas corpus to be therefore detained And it is true that a Remittitur is entred in the roll but it is onely a remittitur prisoner prodict ' without quousque secundum legem de liberatus fuerit and in truth it appeares on the Record that the Court gave the Warden of the Fleet three severall dayes at severall times to amend his returne and in the interim remittitur persone pred' Certainly if the Court had thought that the returne had beene good they would not have given so many severall dayes to have amended it for if that Mandatum Dom. Regis had beene sufficient in the Case why need it to have been amended 13. Iac. Sir Samuel Saltonstalls Case The ninth and last of these is Tr. 13. Iac. Rot. 71. The Case of the same Sir Samuel Saltonstall he is returned by the Warden of the Fleet and in the Case before and generally remittitur is in the roll which proves nothing at all that therefore the Court thought he might not by law be inlarged and besides in both cases hee stood committed also for disobeying an order in the Chauncery These are all that have beene pretended to the contrary in this great point and upon the view of them thus opened to our Lordships it is plaine that there is not one not so much as one at all that proveth any such thing as that persons committed by the command of the King or the Lords of the Counsell without cause shewed might not be enlarged but indeed the most of them expresly prove rather the contrary Now my Lords having thus gone through the Presidents of Record that concerne the point of either side before I come to the other kind of Presidents which are the solemne resolutions of Judges in former times I shall as I am commanded also by the House of Commons represent unto your Lordships somewhat else they have thought very considerable with which they met whilst they were in a most carefull enquiry of whatsoever concerned them in this great question It is my Lords a draught of an entry of a judgement in that great case lately adjudged in the Court of Kings Bench when divers Gentlemen imprisoned per speciale mandatū Dom. Regis were by the award and order of the Court after solemne debate sent back to prison because it was expresly said they could not in Justice deliver them though they prayed to be bayled The case is famous and well knowne to your Lordships therfore I need not further to mention it as yet indeed there is no judgement entred upon the Roll but there is room enough for any kind of judgement to be entred But my Lords there is a forme of a judgement a most unusuall one such a one as never was in any such case before for indeed there was never before any Case so adjudged and thus drawne upon by a chiefe Clerk of that Court by direction of M. Attorney generall as the House was informed by the Clerk in which the reason of the judgement and remanding of those Gent. is expressed in such sort as if it should be declared upon Record for ever that the Lawes were that no man could ever be inlarged from imprisonment that stood committed by such an absolute command The draught is onely in Sir John Heninghams Case being one of the Gent. that was remanded and it was made for a form for all the rest The words of it are after the usuall entry of a Curia advisare vult for a time That visis retur predict nec non diversis antiquis recordis in Curia hic remaveum consimiles casus continentibus maturaque deliberatione inde prius habita eo quod milla specialis causa captionis sive detentionis pred Iohanis ex primitur sed generalitur quod detentus est in prisona pred' per speciale mandatum Dom. Regis ideo pred' Iohanes remittitur prefat custodi Marr. Hospitii pred' Salvo custodiend quousque c. that is quousque legem deliberatus fuerit And if that Court that is the highest for ordinary Justice cannot deliver him secundem legem What law is there I beseech you my Lords that can be sought for in any other inferiour Court to deliver him Now my Lords because this draught if it were entred in the Roll as it was prepared for no other purpose would be as great a declaration contrary to the many Acts of Parliament already cited contrary to all Presidents of former times and to all reason of Law to the utter subversion of the highest liberty and right belonging to every free man of this Kingdome and for that especially also it supposes that divers ancient Records had been looked into by the Court in like cases by which Records their judgements were directed whereas in truth there is not any one Record at all extant that with any colour not so much indeed as with any colour warrants the judgement therefore the House of Commons thought fit also that I should with the rest that hath beene said shew this draught also to your Lordships I come now to the other kind of Presidents that is solemne resolutions of Iudges which being not of Record remaine onely in authentique copies but of this kinde there is but one in this case that is
Anno 8. H. 8 per cont ejusdem Rot. 23. 8. H. 8. Pages case cite devant fo 45. Edwardus Page nuper de London Gent. per Georgium Com. Salopiae Seneschall Hospitij Dom. Regis Henericum Shamburne Marr. cur Mar. Hospitij pred virtute brevis Dom. Regis de Habeas corpus ad Sect. ipsius Regis ad conservand diem c. eis inde direct coram Rege duct cum causa vizt quod idem Edwardus Captus detentus in prisona Regis Marr. pred per mandatum Dom. Regis ihidem salvo Custodiend c. Qui committitur Marr. Hospitij Dom. Regic Ter. Mich. Anno 8. Jac. Et per cont ejusdem Rot. 99. 8 Iac. Caesars case cite devant fo 46. Tho. Casar per Tho. Vavisour mil ' Marr. Hospitij Dom. Regis Marr. Marr. ejusdem Hospitij Dom. Regis virtute brevis Domini Regis de Habeas corpus ad subijciend c. ci inde direct coram Rege apud Westminst duct cum causa vizt quod ante adventum brevis pred scil 18. Julij Anno Regni dicti Dom. Regis nunc Angliae c. 7. Tho. Caesar in brevi pred nominat Captus fuit apud White-Hall in Com' Middl. per speciale mandatum Dom. Regis ac per eundem Regem ad tunc ibidem Commiss fuit prison Marr. ibidem salvo Custodiend quousque c. Et ea fuit causa captionis detentionis ejusdem Tho. Caesar Qui comittitur prisonae Marr. pred Ter. Sancti Mich. 8. Jac Regis Nisi pred Seneschall Marr. Hospitii Dom. Regis sufficienter return ' bre de Habeas Corpus Tho. Caesar die Mercur. per quinden Sanct. Martini defendens exonerabitur Ter Hill 12. Jac. Rot. 153. Marr ' Hospitii Regis 12. Iac Emersons case cite devant fo 46. Iacobus Demaistres Edwardus Emerson Georgius Brookeshall W. Steephens per Tho. Vavisour mil ' Marr. Marr. Hospitij Regis virtute bre Dom. Regis de Habeas corpus ad subijciend c. ei inde direct coram domino Rege apud Wostminst duct cum causa vizt quod ante adventum brevis pred scilt 22. Ianuar. Anno Regis Iacobi Angliae c. 12. Scot. 48. pred Iacobus Demaistres Edwardus Emerson Gregorius Brookeshall W. Steephens in brovi huic Schedul ' annex nominat Commiss fuer ' Gaol ' Marr. Hospitij Dom. Regis pro causis ipsum Regem servic ' suum tangen concernen Et hac est causa Captionis pred Iacobi Edwardi Georgij Willielmi postea immediate remittitur prafat Marr. Hospitij pred Ter. Hill 12. Jac. Regis Prison de le Fleet Sir Samuel Saltonstalls case cite devant fo 49. Samuel Saltonstall miles per Johannem Wilkinson Ar. guard de le Fleete virtute brevis Dom. Regis de Habeas Corpus ad subijciend c. ei inde direct coram Domino Rege apud Westminst duct cum causa vizt quod pred Samuel commiss fuit prisonae pred 11. Martij 1608. per Warrant a Dominis de privato consilio Dom. Regis quod detentus suit etiam idem Samuel in prisona pred virtute cujusdem ordinis in cur Canc ' Dom. Regis fact cujus ordinis tenor patet per Rot. Record istius Termini ad quem diem pred Samuel remittitur prisonae pred Et secundus dies prox ter ' datus est guardian prisonae pred ad emendand return suum sufficien super pred bre de Habeas Corpus Et quod tunc intulerit hic in cur corpus pred Samuel Saltonstall mil ' Ad quam quidem diem prefat Guardian prisonae pred super pred bre de Habeas Corpus retorn quod pred Samuel cōmissus fuit prisonae pred 11. die Martii 1608 per Warrant a Dom. de privat ' Concil dicti Dom. Regis apud Whitehal tunc Seden quod postea 11. die Febr. 1610. commiss fuit extra cur Canc. Dom. Regis apud Westminst pro contemptu suo eidem cur illat Et quod detent fuit etiam idem Samuel in prisona pred per mandat Dom. Cancellar ' Anglia super quo pred Samuel ' iterum remittitur prisonae pred ulterius dies dat' est prefat Gardian ad emendend return suum super Habeas corpus ver deftom prout stare voluit usque diem Iovis prox ' Mens Pasch Et tunc ad Habend Corpus c. Ad quam diem prefat guardian intulit corpus hic in cur retorn ' super Habeas corpus quod pred Samuel ' Commiss fuit prisonae pred 11. die Martii 1608. virtute cujusdem Warranti a Dominis de privato Concil ' Dom. Regis tunc seden apud White-Hall Et quod etiam idem Sam. Commiss fuit prisonae 11. Febr. Anno Regis Jac. 8. per cur Canc. Dom. Regis apud Westminst tunc existen pro quadam contempt per eundem Samuel eidem cur illat perpetrat proinde salvo custodiend qui remittitur prisonae pred Ter. Tr. Anno 13. Jac. per cont ejusdem Rot. 17. 13 Ia. Sir Samuel Saltonstals case cite devant fo 49. Samuel Saltonstall miles per Iohannem Wilkinson Guardian prisonae de le Fleet virtute brevis Dom. Regis de Habeas Corpus ad Subiiciend et recipiend c. eiinde direct corā Domino Rege apud Westminst duct cū causa vizt quod pred Samuel Saltonstall commissus fuit prisonae pred 12. die Martii Anno Regis Iacob Angliae c. sexto virtute cujusdam Warrant a dominis de privat Consilio Dom Regis tunc seden apud White-Hall commissus fuit etiamidem Samuel Saltonstall miles prisonae pred 12. die Febr. Anno 1610. Anno Reg. Iac. Angliae c. 8. per considerat cur Cancell ' dicti Dom. Regis apud Westminst pro contempt eidem cur ad tunc per pred Samuel illat ibidem proinde Salvo custodiend Et haec sunt causae captionis detentionis pred Sam Saltonstall mil. in prisona pred cujus tamen corpus ad diem locum infra content parat habeo prout mihi precipitur Finis d' les Presidents Sir Edward Cookes Argument Iovis 3. Apr. 4. Caroli Regis 1. REsolved upon the question that no Free-man ought to be deteined or kept in prison or other wise restrained by the command of the King or the Privie Counsell or any other unlesse some cause of the commitment deteyner or restraint bee expressed for which by Law he ought to be committed deteyned or restrained 2. That the Writ of Habeas Corpus may not bee denied but ought to be granted to every man that is committed or deteyned in prison or otherwise restrained though it be by the command of the King the Privie Counsell or any other hee praying the same That if a Free-man be committed or deteyned in prison or otherwise restrained by the Command of the King the Privie Counsell or any other
committed one cause must be pretended and another intended especially when it toucheth matter of State Rns Whereunto it was answered that all dissimulation especially in a cause of Justice was to be avoided and soundnesse of truth to take place And therefore David that was both a King and a Prophet prayed unto Almighty God against dissimulation in these words Lord send me a sound heart in thy Statutes that I be not ashamed where found in the originall signifieth upright without dissimulation and shame followes dissimulation when the truth is knowne The third objection 3 If a Rebell be attainted in Ireland and his children for safety and matter of State be kept in the Tower what shall be returned upon the habeat corpus Rns Whereunto it was answered that their imprisonment might be justified if they could not find good sureties for their good behaviour 2. It was charity to finde them meat drink and cloath that by the Attainder of their Father had nothing The fourth objection 4 Though his Majestie expresseth no cause yet it must be intended there was a just cause Rns Bracton Fleta Answere De non apparentibus non existentibus eadem ratio The fifth objection 25. Ed. 3. cap. 13 Stat. 4. H. 7. 6. 5 The King in stead of gold or silver may make money currant of any base mettall 2. He may make warres at his pleasure 3. Hee may pardon whom he will 4. Hee may make Denizens as many as he will and these were said to be greater prerogatives then these in question Rns Answer to the first It was denied that the King might make money Currant of base money but it ought to be of gold or silver 2. It was answered admitting that the King might do it his losse and charge was more then of his Subjects both in the Case of money and in the Case of warre the pardon was private out of grace and no man had danger or losse by it and so the making of Denizens the King was onely the looser vizt where hee had double Customes to have single 3. It was a non sequitur the King may doe these things ergo hee may imprison at will Your Lordships are now advised by those that cannot be daunted for feare nor misled by affected reward or hope of preferment that is of the dead 1 By ancient and many Acts of Parliament in the point besides Magna Charta which hath beene 30 times confirmed and commanded to be put in execution whereto the Kings of England have 30 times given their royall assent 2 Judiciall Presidents of grave and reverend Judges in terminis terminantibus that long since are departed this world 3 And lastly per vividas rationes manifest and apparent reasons Wee of the House of Commons have upon great Studie and serious consideration made a great manifesto unanimously nullo contradicente concerning this great liberty of the Subject and have vindicated and recovered the body of this fundamentall liberty both of your Lordships and of our selves from shadowes which sometimes of the day are long sometimes short and sometimes long againe And therefore no Judges are to be led by them your Lordships are involved in the same danger and therefore ex congruo condigno Wee desired a conference to the end your Lordships may make the like declaration as we have done Commune periculum requireth commune auxilium and thereupon take such further course as may secure both your Lordships and us and all your and our posterities in enjoying our ancient undoubted and fundamentall liberties FINIS The substance of the obiections made by M. Attorney Generall before a Committee of both Houses to the Argument that was made by the House of Commons at the first conference with the Lords out of Presidents of Record and resolutions of the ludges in former times touching the liberty of the person of every Freeman and the answers and replies then presently made by the House of Commons to those objections M. Attorneyes objections AFter the first conference which was desired by the Lords and had by a Committee of both Houses in the painted Chamber touching the reasons lawes acts of Parliament and Presidents concerning the liberty of the person of every Freeman M. Attorney Generall being heard before a Committee of both Houses as it was assented by the House of Commons that hee might be before they went up to the conference after some preamble made wherein hee declared the answering of all reasons of Law and Acts of Parliament came onely to the Presidents used in the Arguments before delivered and so endevoured to weaken the strength of them that had bin brought on the behalfe of the Subject to shew that some were directly contrary to the Law comprehended in the resolutions of the House of Commons touching the bayling of prisoners returned upon the Writ of Habeas Corpus to be committed by the speciall command of the King or of the Counsell without any cause shewed for which they ought by Law to be committed And the course that was taken which it pleased the Committee of both Houses to allow of was that M. Attorney should make his objections to every particular President and that the Gent. appointed and trusted by the House of Commons by severall replies should satisfie the Lords touching the severall objections made by him against or upon every particular as the order of the Presidents should lead them He began with the first 12 Presidents that were used by the House of Commons at the conference desired by them to prove that prisoners returned to stand so committed were delivered by bayle by the Court of Kings Bench. Objection al Bildestons Case cite devant fo 35. 55. The first was that of Bildestons Case in 18 Ed. 3. Rot. 33. To this he objected 1. That in thereturne of him into the Court it did not appeare that this Bildeston was committed by the Kings Command And secondly that in the Record it did appeare also that he had beene committed for suspition of counterfetting of the great Seal and so by consequence was bayleable in the Law in regard there appeared a cause why hee was committed in which case it was granted by him as indeed it is plaine and agreed of all hands that the prisoner is bayleable though committed by the Command of the King And he said that this part of Record by which it appeared hee had beene committed for this suspition of treason was not observed to the Lords in their Argument before used And he shewed also to the Lords that there were three severall kinds of Records by which the full truth of every award or bayling upon a habeat corpus is knowne First by the remembrance roll wherein the award is given Secondly the file of the Writ and the returne Thirdly The Scruet Roll or Scruet Finn ' wherein the Bayle is entred and that onely the remembrance roll of this case was to be found and that if the
other two of it were extant he doubted not but that it would appeare also that upon the returne it selfe the cause of the commitment had beene expressed and so he concluded that this proved not for the resolution of the House of Commons touching the matter of Baile where a prisoner was committed by the Kings command without cause shewed Rns al dit obj To these objections the reply was first that it was plaine that Bildeston was committed by the Kings expresse command for so are the very words of the Writ to the Constable of the Tower quod cum teneri custodiri facias c. then which nothing can more fully expresse a commitment by the Kings command Secondly how ever it be true that in the latter part of the Record it doe appeare that Bildeston had beene committed for a suspition of treason Yet if the time of the proceeding expressed in the Record were observed it would be plaine that the objection was of no force for this one ground both of this one case and all the rest is infallible and never to be doubted of in the Law Regula That the Justices of every Court adjudge of the force and strength of a returne out of the body of it selfe onely and according as therein appeares to them Now in Easter Terme 18 Ed. 3. he was returned and brought before them onely as committed by the Writ wherein No cause is expressed and the Lievtenant of the Constable of the Tower that brought him into the Court said that he had no other warrant to detaine him nisi bre predict wherein there was no mention of any Cause And the Court thereupon adjudged that bre predict or that speciall command was not sufficient cause to detaine him in prison and thereupon he is by judgement of the Court in Easter Term let to mainprise but that part of the Record wherein it appeares that he had indeed beene committed for suspition of treason is of Trinity Terme following when the King after letting him to mainprise because no man prosecuted him And at that time it appeares but not before he had been in for suspition of treason so that he was returned to be committed by the Kings speciall command onely without any cause shewed in Easter Terme and then by judgement of the Court let to mainprise which to this purpose is but the same with bayle though otherwise it differ And in the Terme following upon another occasion the Court knew that he was committed for suspition of treason which hath no relation at all to the letting him to mainprise nor to the judgement of the Court then given when they did not nor could not possibly know any cause for which the King had committed him and it was said in the behalfe of the House of Commons that they had not indeed in their Argument expressely used the latter part of the Record of Bildestons Case because it being only of Trinitie terme following it could not concerne the reasons of an award given by the court in Easter terme next before yet notwithstanding that they had most faithfully at the time of their Argument delivered unto the Lords as indeed they had a perfect Copie at large of the whole record of this Case as they had also done of all other Presidents whatsoever cited by them insomuch as intruth there was not one president of Record of either side the Copie whereof they had not delivered in likewise nor did Master Attorney mention any one besides those that were so delivered in by them And as touching the three kinds of Records the remembrance Rolle the returne and the file of the Writ and the Scruet it was answered by the Gent. imployed by the house of Commons that it was true the Scruet and returne of this case of Bildestons was not to be found but that did not lessen the weight of the president because alwayes in the award or Judgement drawne up in the remembrance Rolle the cause whatsoever it be when any is shewed appeares clearely by the constant Entrees of the Court of Kings Bench So as if any cause had appeared unto the Court it must have appeared plainly in that part of the Roll which belongs to Easter terme wherein the Judgement was given but the returne of the commitment by the Kings command without cause shewed and the Judgement of the Court that the prisoner was to be let to mainprise appeare therein only And so notwithstanding any objection made by Master Attorney the Cause was maintained to be cleare proofe among many others touching that resolution of the House of Commons Objections Hors de Parkers case 22. H 8 cite ante fo 35 et 55. To the second of those 12. which is Parkers Case in 22. H. 8 rot 37. his Objections were two first that this is true that he was returned that he was committed per mandatum Dom. Regis but that it appeared that this command was certified to the Sherifes of London by one Robert Pecke and that in regard the command came no otherwise the returne was held insufficient and therefore he was bayled Secondly that it appeares also in the record that he was committed pro suspitione feloniae ac per mandatum Dom Regis So that in regard the expression of the cause of his commitment suspition of felonie precedes the command of the King therefore it must be intended that the Court tooke the cause why the King committed him to be of lesse moment then felonie and therefore bayled him For he objected that even the house of Commons themselves in some Arguments used by them touching the interpretation of the Statute of Westminst 1. cap. 15. about this point had affirmed that in enumeration of particulars those of greatest nature were first mentioned and that it was supposed that such as followed were of lesse nature or moment Rns al dit objection But the reply was to the first objection that the addition of certifying of the Kings command by Robert Pecke altered not the case first because the Sherifes in their returnes tooke notice of the command as what they were assured of and then however it came to them it was of equall force as if it had beene mentioned without reference to Pecke Secondly that as divers Pattents passe the great Seale by Writ of privie Seale and are subscribed per bre de privato Sigillo so divers per ipsum Regem are so subscribed and oftentimes in the Rolles of former times to the words per ipsum Regem are added Nuntians A. B. So that the Kings Command generall and the Kings command related and certified by such a man is to this purpose of like nature Thirdly in the late great Case of Habeas Corpus where the returne of the commitment was per speciale mandatum Dom. Regis mihi significat per Dominos de privato consilio and the Court of the Kings Bench did agree that it was the same and of the like force as if mihi significat
c. had not followed and that these words were void according whereunto here also per mandat Dom. Regis nunciat per Robertū Pecke had bin wholly omitted and void likewise in truth in that late Case this case of Parker was cited both at the Bar and at the Bench and at the Bench it was interpreted by the Judges no otherwise then if it had beene only per mandatum Dom. Regis in this place of it But the objection there was made of another kind as was delivered in the first Argument made out of Presidents in behalfe of the house of Commons Then for the second objection touching the course of enumeration of the causes in the returne it was said that however in some acts of Parliament and else-where in the solemne expression used in the Law things of greater nature precede and the lesse follow Yet in this case the contrary was most plaine for in the return there appeares that there were three causes of deteyning the prisoner surety of the peace suspition of felonie and the Kings command and suretie of the peace is first mentioned which is plainly lesse then felonie therefore it is as plaine that if any force of Argument be here to be taken from this enumeration the contrary to that which Master Attorney inferred is to be concluded that is that as felonie is a greater cause then Suretie of the Peace so the matter whereupon the Kings command was grounded was greater then the felonie But in truth this kind of Argument holds neither way here And whatsoever the cause were why the King committed him it was impossible for the Court to know it And might also have been of very high moment in matter of State and yet of farre lesse nature then felonie all which shewes that this President hath its full force also according as it was first used in Argument by the house of Commons 35. H. 8. Bincks case cite ante 36. 56 objections hors de ceo To the third of these which is Bincks Case in 35. H. 8. Rot. 35. the Objection was that there was cause expressed pro suspitione feloniae and though pro alijs causis illos moventibus were added in the returne yet because in the course of enumeration the generall name of alia comming after particulars includes things of lesse nature then the particular doth therefore in the Case suspition of felonie being the first the other causes generally mentioned must be intended of lesse nature for which the prisoner was bay leable for the greater which was suspition of felonie Rns al dit obiection Hereunto it was replied that the Argument of enumeration on in these cases is of no moment and is next before shewed and that although it were of any moment yet the aliae causae though lesse then felonie might be of very great consequence in matter of State which is pretended usually upon generall returnes of command without cause shewed And it is most plaine that the Court could not possibly know the reasons why the prisoner here was committed and yet they bay led him without looking further after any unknowne thing under that tytle of matter of State which might as well have been in this Case as in any other whatsoever 2. 3. P. M. Overtons case Et 4. et 5. P. M. Newports case cite ante fo 36. et 37. Et les objections la rnde le Record de ceux vide ante fo 37. et 38. To the fourth of these which is Overtons Case en Pas 2. 3. P. et Mar. rot 58. and to the fifth which is Newports Case Pas 4. 5. P. Mar. rot 45. onely these observations were said over againe by Master Attorney which were moved in the Argument made out of the Presidents in the behalfe of the house of Commons at the first conference and in the same Argument were fully and cleerely satisfied as they were now againe in like manner 9. El. Lawrences case et eodem Anno Constables case cite devant fo 38. et 56. To the sixth which is Lawrences Case in 9. El. rot 35. and to the seventh which is Constables Case Pas 9. El. Rot. 68. the same objections were likewise said over againe by Master Attorney that are moved and clearly and fully answered in the Argument made at the last Conference out of Presidents in the behalfe of the house of Commons The force of the Objection being only that it appeared in the margin of the Roll that the word Pardon was written but it is plaine that the word there hath no reference at all to the reason why they are bayled nor could have reference to the cause why they were committed is utterly unknowne and was not shewed 20. El. Brownings case cite devant fo 38. et 56. To the eighth which is Brownings Case in Pas 20. El. Rot. 72. it was said by Master Attomey that he was bayled by a Letter from the Lords of the Counsell directed to the Judges of the Court but being asked for that Letter or any testimony of it he could produce none at all but said he thought the testimony of it was burnt amongst many other things of the Counsell table at the burning of the Banquetting house 40. El. Harecourts case cite devant fo 39. To the ninth being Harecourts Case Pas 40. El ' Rot. 620. the selfe-same objection was made by him but no warrant was shewed to maintaine his objection 43. El. cite devant fo 39. Catesbies case Object a ceo To the tenth which is Catesbies Case in vacatione Hill 43. El. he said that it was by direction of a Privie Seale from the Queene and to that purpose he shewed the Privie Seale of 43. El. which is at Charge among the transcript of the Records concerning bayles taken in Cases when the King or the Lords of the Counsell assented Rns a ceo But it was replied that the Privie Scale was made only for some particular Gentleman mentioned in it and none other as indeed appeares in it And then he said that it was likely that Catesby here had a privie Seale in this behalfe because those other had so which was all the force of his objection 12. Iac. Backwiths case cite devant fo 39. 58. Objection a ceo To the 11 which is Beckwiths Case in Hill 12. Iac. Rot. 183. He said the Lords of the Counsell sent a letter to the Court of Kings Bench to bayle him and indeed hee produced a letter which could not by any meanes be found when the Arguments were made at the first conference And this Letter and a Copie of an obscure report made by a young Student that was brought to another purpose as is hereafter shewed were the onely things written of any kinde that M. Attorney produced besides the particular shewed by the House of Commons at the first conference Rns al objections To this it was replied that the letter was of no moment being onely a direction to the chiefe
that it should have beene Qui remittitur Hospitii Dom. Regis for when ever they remand a prisoner remittitur and not committitur should be entred and that mistaking being so rectified and understood he conceived it was a direct President against the resolution of the House of Commons Rns al dit objection To this it was answered by the Gent. of the House of Commons that there was no doubt indeed but that a mistaking was by the entry of the Clerk but that the mistaking was quite of another nature The addition of these words Hospitii Dom. Regis was the mistaking and the entry should have bin qui committitur Marr. c. onely that is that he is committed to the Marshall of the Kings Bench and so indeed the force of the President should be just the same with the first foure but the ignorance of the Clerk that entred it knowing not how to distinguish betweene the Marshall of the Houshold and the Marshall of the Kings Bench was the cause of the Addition of these words and to confirme fully this kinde of interpretation of that President and of the mistaking in it 't was observed by the Gent. of the House of Commons that there is in the Margine of the Roll an infallible Character that justifies so much for by the course of that Court whensoever a prisoner is committed to the Marshal of the Kings Bench and not remanded the word Marr ' c. is written in the Margin short by Marr ' c. turned up and that is never written but when the meaning and sence of the Entry is that the prisoner is committed to the prison of the same Court now in this Case in the Margin Marr ' is likewise written which most plainely shewes the truth of the Case was that this Page was committed to the Marshall of the Kings Bench and not remanded which if hee had beene neither could the Entry have beene committitur nor should the Margine of the Rolle have had Marr ' written in it And thus they answered Master Attorneys Objection touching this President and concluded that now besides the first foure of the eight they had another and so five more to prove that a prisoner committed per mandatum Dom. Regis generally was bayled by the Judgement of the Court. However it appeares not in these particulars that they were bayled which perhaps they were not either because they prayed it not or because they could not find sufficient Bayle 8. Iac. Caesars case cite devant fo 46. 64. Objections hors de ceo To the sixth of these eight Presidents being the Case of Tho. Caesar in 8. Iac. Rot. 99. Master Attorney objected it thus That Caesar being committed per mandatum Dom. Regis to the Marshalsea of the Houshold was returned upon Habeas Corpus to be so committed and therefore deteyned in Prison and that the entrie is qui remittitur prisonae pred by which it appeares cleerely that he was remanded to the same prison from whence he came Rns al dits obiections To which the Gentlemen of the house of Commons gave this answer they said that the usuall entrie of a remittitur when it is to shew that the Court by way of Judgement or award upon a resolution or debate remand the prisoner is quousque secundum legem deliberatus fuerit but when they advise or give day to the Keeper of the prison to amend his returne or the like then the entrie is only remittitur generally or remittitur prisonae pred But it was indeed affirmed by Master Keeling a Clerke of experience in that Court that the entrie of Remittitur generally or Remittitur prisonae pred was indifferently used for the same that Remittitur quousque c. yet it was expresly shewed by the Gent. of the house of Commons that there was sometimes a difference and that so it might well be in this case for in the last of these eight presidents which is Saltonstals Case they observed that Remittitur prisonae pred is often used only for a remanding during the time that the Court gave leave for the Warden of the Fleet to amend the returne which shewes plainly though sometimes Remittitur generally and Remittitur quousque may meane but the same yet sometimes also it doth not meane the same And that in this Case of Caesar it meant only but so much as it doth twice in that of Saltonstalls Case which was proved also by a rule of the Court which was cited out of the Rule Booke of the Court of Kings Bench by which rule the Court expresly ordered that unlesse the Steward and Marshall of the household did sufficiently return the Writ of Habeas Corpus for Caesar that he should be discharged the words of the Rule are Nisi pred Seneschall ' Marr ' Hospitii Dom. Regis sufficienter returnabit bre de Habeas Corpus Thomae Caesar die Mercur. prox ' post festum Sanct. Martin defendens exonerabitur And this was the opinion of the Court which shewes that the Court was so farre from remaunding him upon the reâ—urne that they resolved that unlesse some better returne was made the prisoner should be discharged of his first imprisonment though it appeare to them out of the body of the returne upon which they are to judge that he was committed per mandatum Dom. Regis only And the Rule not only shewes the opinion of the Court then to be agreeable with the resolution of the house of Commons but also proves that Remittitur generally and Remittitur prisonae predict doth not alwayes implie a remanding upon Judgement or debate And this answer was given to this of Caesars Case and that is the sixth of this number 12. Iac. Demestrius and others case cite devant fo 46. 64. Obiections hors de ceo The seventh is the Case of James Demestrius it was 12. Iac. Rot. 153. Master Attorney objected that this Demestrius and divers others being Brewers were committed per Consilium Dom. Regis to the Marshalsea of the houshold and that upon the commitment being so generally returned they were remanded and that the entrie was immediate remittitur praefat Marr ' hospitij praed where observes that immediate shewes that the Judges of that time were so resolved of this question that they remaunded them presently as men that well knew what the Law was herein Rns al dit obiections Hereunto the Gent. of the House of Commons gave this answer First that the remittitur in this Case is but as the other in Caesars and so proves nothing against them Secondly that immediate being added to it shewes plainly that it was done without debate or any Argument or consideration had of it which makes the Authoritie of the President to be of no force in point of Law For Judgements and awards given upon deliberation and debate only are proofes and Arguments of weight and not any sudden act of the Court without debate or deliberation And the entrie of immediate
being proposed to Master Keeling it was confirmed by him that by the Entrie it appeared by their course that the remaunding of him was the selfe-same day he was brought which as it was said by the Gent. of the house of Commons might be upon the rising of the Court or upon advisement or the like and this answer was given to this President of the Brewers 12. Iac. Saltonstalls case cite devant fo 49. 65 Obiections hors de ceo To the last of these eight which Master Attorney objected is Saltonstalls Case 12. Jac. he was committed per mandatum à Dom. de privato Consilio and being returned by the Warden of the Fleet to be so Remittitur prisonae pred and in 13. Iac. in the same Case there is remittitur generally in the Roll and these two make but one Case and are one President Rns al dits obiections To this the Gent. of the house of Commons answered that it is true the Rolles have such entries of remittitur in them generally But that proves nothing upon the reason before used by them in Caesars Case But also Saltonstall was committed for another cause besides per mandatum Dom. Regis for a contempt against an Order in the Chancery and that was in the returne also And besides the Court as it appeares in the Record gave severall dayes to the Warden of the Fleet to amend his returne which they would not have done if they had conceived it sufficient for that which is sufficient needs not amendment To this Master Attorney replied that they gave him day to amend his returne in respect of that part of it which concerns the Order in Chancery and not in respect of that which was per mandatum Dom. Regis But the Gent. of the House of Commons answered that that appeared not any where nor indeed is it likely at all nor can be reasonably so understood because if the other returne per mandatum Dom. Regis had beene sufficient by it selfe then doubtlesse they would have remanded him upon that alone for then they needed not at all to have stood upon the other part of the returne in this Case So that out of the Record it selfe it appeares fully that the Court conceived the returne to be insufficient So the Gent. of the house of Commons concluded that they had a great number of Presidents besides divers Acts of Parliament and reasons of Common law agreeable to their resolution and that there was not one President at all that made against them but indeed that almost all that were brought as well against them as for them if rightly understood made fully for the maintenance of their conclusion and that there was not one Example or President of a Remittitur in any kind upon the point before that of Caesars Case which is before cleered with the rest and is but of late time and of no moment against the resolution of the House of Commons And thus for so much as concerned the presidents of Record the first day of the Conference desired by the Lords ended The next day they desired another Conference with the House of Commons at which it pleased the Committee of both Houses to heare Master Attorney againe make what Objections he could against other parts of the Argument formerly delivered from the House of Commons he objected against the Acts of Parliament and against the reasons of the Law and his objections to those parts were answered as it appeares by the Answers by order given into the House of Commons by the Gent. that made them He objected also upon the second day against the second kind of Presidents which are resolutions of Judges in former times and not of Record and brought also some other testimonies of the opinions of Judges in former times touching this point Resolution de touts les Iudges 34. El. Objections hors de ceo per l' Attorney First for that Resolution of all the Judges of England in 34. El. mentioned and read in the Arguments read at the first Conference he said That it was directly against the resolution of the House of Commons and observed the words of it in one place to be that persons so committed by the King or by the Counsell may not be delivered by any of the Courts c. And in another that if the cause were expressed either in generall or in specialtie it was sufficient and he said that the expressing of a Cause in generaltie was to shew the King and the Counsels cōmand and to this purpose he read the whole words of that resolution of the Judges Then he objected also that in a report of one Roswels Case in the Kings Bench in 13 Jac. he found that the opinion of the Judges of that Court Sir Edward Cooke being then chiefe Justice and one of them was that a prisoner being committed per mandatum Dom. Regis or privati Consilii without cause shewed and so returned could not be bayled because it might be matter of State or Arc anum nuperii for which he stood committed And this also he added an opinion he found in a Journall in the House of Commons of 18. Iac. wherein Sir Edward Cooke speaking to a bill preferred for the explanation of Magna Charta touching imprisonment said in the same House that one so committed could not be inlarged by the Law because it might be matter of State for which he was committed and amongst these objections as his objections of the other nature also he spake of the confidence that was shewed in the behalfe of the House of Commons and he said it was not confidence on either part could adde any thing to the determination of the question but if he would that he had as much reason of Confidence for the other side against the resolution of the House of Commons grounding himselfe upon the force of his objections which as he conceived had so weakned the Arguments of the House of Commons Rns al dits objections To this a reply was made and first it was said to the Lords on the behalfe of the House of Commons that notwithstanding any thing yet objected they were upon cleare reason still confident of the truth of their first resolution grounded upon so just examination and deliberation taken by them And it was observed to the Lords also that their confidence herein was of another nature and of greater waight then any confidence that could be expressed by M. Attorney or whomsoever else being of his Majesties Counsell learned To which purpose the Lords were desired to take into their present memories the difference between the present qualities of the Gent. that spake in the behalf of the House of Commons of the Kings learned Counsel in their speaking there howsoever accidently they were both men of the same profession For the Kings Counsell spake as Counsell perpetually retained by Fee and if they made glosses or advantagious interpretations whatsoever for their own part they did but what