particularly leaving the reasons of law and presidents for others to give your Lordships satisfaction that this libertie is established and confirmed by the whole State the King the Lords spirituall and temporall and Commons by severall Acts of Parliament the authoritie whereof is so great that it can receive no answer save by interpretation or repeale by future Statutes And those that I shall mind your Lordships of are so direct in point that they can beare no other exposition at all and sure I am they are still in force The first of them is the grand Charter of the Liberties of England first granted in the seventeenth yeare of King John and renewed in the ninth yeare of Henry the third and since confirmed in Parliament above 30. times the words there are Chap. 29. Nullus liber homo capiatur vel imprisonetur aut disseisietur de libero tento suo vel liberis consuetudinibus su is aut utlageretur aut exuletur aut aliquo modo destruatur nec super eum ibimus nec super eum mittemus nisi per legale judicium parium suorum vel per legem terrae These words nullus liber homo c. are expresse enough yet it is remarkable that Mathew Paris an Authour of speciall credit doth observe fol. 432. that the Charter of 9. H. 3. was the very same as that of 17. King John in nullo dissimilis are his words and that of King Iohn he setteth downe verbatim Fo. 342. and there the words are directly Nec eum in Carcerem mittemus and such a corruption as is now in the print might easily happen 'twixt 9. H. 3. and 28. of Ed. 1. when this Charter was first exemplified but certainly there is sufficient left in that which is extant to decide this question for the words are that no Free-man shall be taken or imprisoned but by the lawfull judgement of his Peeres which is by a Iurie of Peeres ordinary Iurors for others who are their Peeres or by the law of the Land Which words Law of the Land must of necessity be understood in this notion to be by due Proces of the Law and not the law of the Land generally or otherwise it would comprehend Bond-men whom wee call Villaines who are excluded by the word liber For the generall law of the Land doth allow their Lords to imprison them at their pleasure without cause wherein they only differ from the Free-men in respect of their persons who cannot be imprisoned without a cause And that this is the true understanding of these words per legem terrae will more plainly appeareby divers other Statutes that I shall use which doe expound the Law according And though the words of this grand Charter be spoken in the third person yet they are not to be understood of suites betwixt party and party at least not of them alone but even of the Kings suites against his Subjects as will appeare by the occasion of getting of that Charter which was by reason of the differences betwixt those Kings and their people and therefore properly to bee applied unto their power over them and not to ordinary questions betwixt Subject and Subject Secondly the words per legale judicium parium suorum immediatly preceding the other of per legem terrae are meant of trials at the Kings suit and not at the prosecution of a Subject And therefore if a Peere of the Realme be arraigned at the Suit of the King upon an Indictement of murther he shall be tried by his Peeres but if he be appealed of murther by a Subject his triall shall be by an ordinary Jury of 12. Freeholders as appeareth in 10. Ed. 4. 6. 33. H. 8. Brooke title trials 142. Stan. Cor. li. 3. ca. 1. fol. 152. and in 10. Ed. 4. 6. it is said such is the meaning of Magna Charta for the same reason Sinor indite ferra trie per pares auterment si soit appeale Br. tit Corone 153. nota bien Therefore as per judicium parium suorum extends to the Kings Suit so shall these words per legem terrae And in 8. Ed. 2. rot parliament membrana 7. there is a Petition that a Writ under the privie Seale went to the Guardians of the great Seale to cause lands to bee seized into the Kings hands by force of which there went a Writ out of the Chancery to the Eschetor to seize against the forme of the grand Charter that the King nor his ministers shall out no man of his Freehold-without reasonable judgement and the party was restored to his land which sheweth the Statute did extend to the King There was no invasion upon this personall libertie till the time of King Ed. 3. which was eftsoone resented by the Subject for in 5. Ed. 3. ca. 9. it is ordained in these words Sta. 5. Ed. 3. 9. It is enacted that no man from henceforth shal be attached by any occasion nor fore-judged of life or limbe nor his lands tenements goods nor chattels seized into the Kings hands against the forme of the great Charter and the law of the Land 25. Ed. 3. cap. 4. Sta. 15. Ed. 3. 4. It is more full and doth expound the words of the grand Charter and is thus Whereas it is conteined in the grand Charter of the franchises of England that none shall be imprisoned nor put out of his freehold nor free custome unlesse it be by the law of the Land It is awarded assented and established that from hence none shall bee taken by Petition or Suggestion made to our Lord the King or to his Counsell unlesse it be by Inditement or presentment of his good and lawfull people of the same neighbourhood which such Deeds shall be done in due manner or by Proces made by Writ originall at the Common law nor that none be Out of his Franchises nor of his Freehold unlesse he be duly brought in answer and fore-judged of the same by the course of the law and if any thing be done against the same it shall be redressed and holden for none Out of this Statute I observe Lex terre expound ê‘ proces dée faict ê‘ bre original al coÌ„mon ley that what in Magna Charta and the preamble of the Statute is tearmed by the law of the Land is in the body of this Act expounded to bee by Proces made by Writ originall at the Common law which is a plain interpretation of the words Law of the Land in the grand Charter And I note that the Law was made upon the commitment of divers to the Tower no man yet knoweth for what 28. Ed. 3. cap. 3. Sta. 28. Ed. 3. ca. 3. It is more direct this libertie being followed with fresh Suit by the Subject where the words are not many but very full and significant That no man of what state or condition he be shall be put out of his lands nor tenements nor taken nor imprisoned nor dis-inherited nor put to
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
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
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
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
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