Selected quad for the lemma: judgement_n

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judgement_n	bring_v	case_n	writ_n	3,541	5	9.1378	5	true

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A75552	The arguments upon the writ of habeas corpus, in the Court of Kings Bench. Wherein, are learnedly discussed, not onely the severall branches of the said writ, but also many authorities as well of the common as statute law: and divers ancient and obscure records most amply and elaborately debated and cleared. Together, with the opinion of the court thereupon. Whereunto is annexed, the petition of Sir Iohn Elliot Knight, in behalf of the liberty of the subject.	Eliot, John, Sir, 1592-1632.; England and Wales. Court of King's Bench.	1649 (1649)	Wing A3649; Thomason E543_1; ESTC R204808	64,168	98

commandement by Letters from the King That whereas the Earl of Warwick had commanded divers persons to the custody of the said Sheriffe the King sent a Letter to the said Sheriffe commanding that those who were committed to his custody by the Earl of Warwick he should shew no grace to them that is they should not be bailed The Sheriffe notwithstanding this command lets some of those prisoners to bail whereupon he was complained of in Parliament that he had done against the Kings commandement and he was condemned for it This was a Parliament I wonder this should be done in Parliament and that it was not said there That this commitment being done by the Kings commandment was not good no he was condemned in Parliament for it was one that did break the Statute of Westm primo My Lord the use that I make of this Record is this It recites that the Earl of Warwick committed divers it might be that he did commit them by direction from the King but the Record mentioneth not so much but it shews that the King by Letters commanded the Sheriffe that he should shew those persons no grace and yet he did he was examined upon this and by Parliament committed The next matter I will offer to your Lordships judgement for the true exposition of the Law in this case is the Book we call the Register an authority respected it is the foundation of all our Writs at the Common Law I bring not the Book Register fol. 77 c. In this Book there is one Writ saith thus Rex c. Quod replegiar ' fac ' A. nisi fuerit per speciale mandatum domini Regis Iustice Doderidge In what Writ is that De homine replegiando Atturney Generall Yea in the Writ De homine replegiando and there is another Writ directed to the Constable of Dover in the very same words by which it appears that they that are imprisoned by the Kings command non sunt replegiabiles F.N.B. 66. f. Master Fitzherbert a grave Judge and is in authority with us perusing these Writs expressed it in these words plainly There are some cases wherein a man cannot have this Writ although he be taken and detained in Prison as if he be taken by the death of a man or if he be taken by the commandement of the Kings Justices and mentions not chief Justice which I beleeve is to be intended not of the chief of the Court of Judicature but of the chief Justice of England for there was such a one in those days Thus my Lord you see the opinion of Master Fitzherbert in this case The next thing that I will shew your Lordship is the opinion of Master Stamford in his Pleas of the Crown Fol. 72. where he sets down the Statute of Westminster primo and then he addes That by this appears in four cases at the Common Law a man is not replevisable In those that were taken for the death of a man or by the commandment of the King or of his Justices or of the Forest And there he saith That the commandment of the King is to be intended either the commandment of his mouth or of his Councell which is incorporated to him and speak with the mouth of the King My Lord I shall desire no better Commentaries upon a Law then these reverent grave Judges who have put books of Law in Print and such Books as none I beleeve will say their judgements are weak The next thing I shall offer unto your Lordship is this that I cannot shew with so great authority as I have done the rest because I have not the thing it self by me but I will put it to your Lordships memory I presume you may well remember it It is the resolution of all the Judges which was given in the four and thirtieth of Queen Elizabeth it fell out upon an unhappy occasion which was thus The Judges they complain that Sheriffes and other Officers could not execute the processe of the Law as they ought for that the parties on whom such processe shall be executed were sent away by some of the Queens Councell that they could not be found the Judges hereupon petitioned the Lord Chancellor that he would be a suitor to her Majesty that nothing be done hereafter And thereupon the Judges were desired to shew in what cases men that were committed were not bailable whether upon the commitment of the Queen or any other The Judges make answer That if a man shall be committed by the Queen by her command or by the Privy Councell he is not bailable If your Lordship ask me what authority I have for this I can onely say I have it out of the Book of the Lord Anderson written with his own hand My Lord I pray you give me leave to observe the time when this was done It was in a time and we may truly call it a good time in the time of good Queen Elizabeth and yet we see there was then cause of complaint and therefore I would not have men think that we are now grown so bad as the opinion is we are for we see that then in those times there was cause of complaint and it may be more then is now This my Lord was the resolution of all the Judges and Barons of the Exchequer and not by some great one Now I will apply my self to that which hath been enforced by the Councell on the other side which was the reason that the Subject hath interest in this case My Lord I do acknowledge it but I must say that the Soveraign hath great interest in it too And sure I am that the first stone of Soveraignty was no sooner laid but this power was given to the Soveraign If you ask me whether it be unlimited my Lord I say it is not the question now in hand But the Common Law which hath long flourished under the Government of our King and his Progenitors Kings of this Realm have ever had that reverent respect of their Soveraign as that it hath concluded the King can doe no wrong And as it is in the Lord Berklies Case in Plowdens Com. 246. b. it is part of the Kings Prerogative that he can doe no wrong Title Travers 5. In the fourth of Edward the fourth fol. 25. the King cannot be a disseisor and so it is also in the Lord Berklies Case in 32 H. 8. Dier fol. 8. The King cannot usurp upon a Patron for the Common Law hath that reverent respect to him as that it cannot conceive he will doe any injury But the King commits a Subject and expresseth no cause of the commitment what then shall it be thought that there is no cause why he should be committed Nay my Lord the course of all times hath been to say there is no cause expressed and therefore the matter is not ripe and thereupon upon the Courts of Judicature have ever rested satisfied therewith they would not search into it My

if you will not have this filed there must go out a new Habeas corpus and thereupon must be another return Sergeant Bramston My Lord we desire some time that we may be advised whether we may proceed or not Lord Chief Justice Hide Will you submit your self to the King Sir Thomas Darnell My Lord I desire some time to advise of my proceedings I have moved many men and offered to retain them of my Councell but they refuse me and I can get none to be of councell with me without your assistance Chief Justice You shall have what Councell assigned you you will have or desire for no offence will be taken against any man that shall advise you in your proceedings in Law Atturney Generall I will passe my word they that do advise you shall have no offence taken against them for it and I shall give my consent to any way that you shall desire either that it may be filed or that it may not be filed for if you desire Justice you shall have it and the King will not deny it but if it shall be conceived as it is rumored that there was a deniall of Justice on the Kings part you must know that his Majesty is very tender of that And for the Gent. now he is brought hither I conceive but yet I leave it to your Lordships judgement that the writ must be filed and you must either deliver him or remand him or else it will be an escape in the Warden of the Fleet. Sir Thomas Darnell I would not have it thought that I should speak any thing against my Prince and for those words I doe deny them for upon my conscience they never came into my thought perhaps you shall find that they have been spoken by some other but not by any of us Chief Justice Hide Sir you have made a fair answer and I doubt not but Mr. Attorney will make the like relation of it you move for the not filing of the Writ if you refuse to have it filed whereby it should not be of Record you must have no Copy of it but if you will have it filed you shall have a Copy of it and further time to speak to it choose whether of them you will Sergeant Bramston We desire to have the return read once more and it was read as before Sergeant Bramston So as the writ may not be filed we will desire no copy of the return Chief Justice Hide Then the Gent. must return back again into the custody of the Warden of the Fleet and therefore I ask you whether you desire to come hither again upon this Writ or will you have a new one Sir Thomas Darnell I desire your Lordship that I may have time to consider of it Chief Justice Hide Then on Gods name take your own time to think of it Michaelis 3º Caroli Regis Thursday 22 November Sir John Corbet Baronet Sir Walter Earle Sir John Henningham Sir Edward Hampden Knights were brought to the Barre Sergeant Bramston MAy it please your Lordship to hear the return read or shall I open it Chief Justice Hide Let it be read Mr. Keeling read the return being the same as that of Sir Thomas Darnell May it please your Lordship I shall humbly move upon this return in the behalf of Sir John Henningham with whom I am of Councell it is his petition that he may be bailed from his imprisonment it was but in vain for me to move that to a Court of Law which by Law cannot be granted and therefore in that regard that upon this return it will be questioned whether as this return is made the Gent. may be bailed or not I shall humbly offer up to your Lordship the case and some reasons out of mine understanding arising out of the return it self to satisfie your Lordship that these Prisoners may and as their case is ought to be bailed by your Lordship The exception that I take to this return is as well to the matter and substance of the return as to the manner and legall form thereof the exceptions that I take to the matter is in severall respects That the return is too generall there is no sufficient cause shewn in speciall or in generall of the commitment of this Gentleman and as it is insufficient for the cause so also in the time of the first imprisonment for howsoever here doth appear a time upon the second warrant from the Lords of the Councell to detain him still in prison yet by the return no time can appear when he was first imprisoned though it be necessary it should be shewn and if that time appear not there is no cause your Lordship should remand him and consequently he is to be delivered Touching the matter of the return which is the cause of his imprisonment it is expressed to be Per speciale mandatum domini Regis This is too generall and uncertain for that it is not manifest what kind of command this was Touching the legall form of the return it is not as it ought to be fully and positively the return of the Keeper himself only but it comes with a significavit or prout that he was committed Per speciale mandatum domini Regis as appeareth by warrant from the Lords of the Councell not of the King himself and that is not good in legall form For the matter and substance of the return it is not good because there ought to be a cause of that imprisonment This writ is the means and the only means that the Subject hath in this and such like case to obtain his liberty there are other writs by which men are delivered from restraint as that de homine replegiando but extends not to this cause for it is particularly excepted in the body of the writ de manucaptione et de cautione admittenda but they lie in other cases but the writ of Habeas corpus is the only means the subject hath to obtain his liberty and the end of this writ is to return the cause of the imprisonment that it may be examined in this Court whether the parties ought to be discharged or not but that cannot be done upon this return for the cause of the imprisonment of this Gentleman at first is so far from appearing particularly by it that there is no cause at all expressed in it This writ requires that the cause of the imprisonment should be returned and if the cause be not specially certified by it yet should it at the last be shewn in generall that it may appear to the Judges of the Court and it must be expressed so farre as that it may appear to be none of those causes for which by the Law of the Kingdome the Subject ought not to be imprisoned and it ought to be expressed that it was by presentment or indictment and not upon petition or suggestion made to the King and Lords which is against the statute made in the 25 Ed. 3. c. 4. 42

Lordship and all others but the parties themselves for I except them My Lord the great and mighty reason that they insisted upon was the inconveniences that might come to the subjects in their liberties if this Return should be good and this reason they inferred out of Records and Books of the Common Law which gives the liberty of the subjects I doe acknowledge that the liberty of the subject is just and that it is the inheritance of the subject but yet it is their inheritance secundum legem terrae My Lords they put many cases likewise to enforce it 1 2 Eliz. Dier fo 175. that the continuance of a Capias shall bee from Term to Term without Term betwixt because otherwise the party defendant may be kept too long in prison and 38 Ass pl. 22. Broke tit Imprisonment 100. that imprisonment is but to detaine the party till he have made fine to the King and therefore the King cannot justly detain him in prison after the fine tendred and 16 H. 6. monstrans de faictz 182. if the King command me to arrest a man and thereupon I doe arrest him he may have an action of false imprisonment or of trespasse against me though it be done in the Kings presence and 1 H. 7. 4. the discourse of Hussey where he saith that Sir John Markham delivered unto King Edward the fourth that hee should not arrest upon treason or felony any of his subjects because hee could not wrong his subjects by such arrest for they could not have remedy against him Prerogative Br. 139. These my Lord are the causes that they insisted upon for this purpose To the two first I shall give but one answer which is that the restraint in these two cases and most of the other cases before cited appears to be in the ordinary course of Judicature fit for Westminster Hall and not for the Kings Councell Table A writ of Capias was the first originall of it and therefore not to be applied to the cause of ours And for the other two cases the law presumeth that the active part of them is not so proper for the Majesty of a King who ever doth these things by his subordinate Officers But that the subject should not be committed by the King was never heard of for the King may commit any man at his pleasure but that is not our case but whether when the King hath committed one he must render a cause of that commitment that it may appear whether the party be bailable or not or else the party must be delivered The Book 9 E. 3. fol. 16. pl. 30. cited of a Cessavit the King having by Proclamation commanded that in the County of Northumberland no Cessavit should be brought c. during the war the tenant pleadeth this command and it was denyed him and he that notwithstanding was commanded to plead but the reason thereof was because the commandment thereof was given by E. 2. who being dead the commandment was determined The Book of Edward the third 4. fol. 16. is indeed where the commandment was given by the same King and that was likewise denyed him for the King cannot command your Lordship to any other Court of Justice to proceed otherwise then according to the Laws of this kingdome for it is part of your Lordships oath to judge according to the Law of the kingdome But my Lord there is a great difference between those legall commands and that absolute Potestas that a Soveraign hath by which a King commands but when I call it absoluta potestas I doe not mean that it is such a power as that a King may doe what he pleaseth for he hath rules to governe himself by as well as your Lordship who are subordinate Judges under him the difference is the King is the head of the same fountaine of Justice which your Lordship administers to all his subjects all Justice is derived from him and what he doth he doth not as a private person but as the Head of the Common-wealth as Iusticiarius Regni yea the very essence of Justice under God upon earth is in him and shall not wee generally not as subjects onely but as Lawyers who governe themselves by the rules of the Law submit to his command but make inquiries whether they be lawfull and say that the King doth not this or that in course of Justice If your Lordship sitting here shall proceed according to Justice who calleth your actions in question except in your own Judgements you see some errour in the proceeding and then you are subject to a writ of Errour But who shall call in question the Actions or the Justice of the King who is not to give any account for them as in this our case that he commits a subject and shews no cause for it The King commits and often shews no cause for it is sometimes generally Per special● mandatum domini Regis sometimes Pro certis causis ipsum dominum Regem moventibus but if the King doe this shall it not bee good it is all one when the commitment is Per speciale mandatum domini Regis and when it is Pro certis causis ipsum dominum Regem moventibus and it is the same if the commitment be Certis de causis ipsum dominum Regem tangentibus And my Lord unlesse the Return to you doth open the secrets of the commitment your Lordship cannot judge whether the party ought by Law to be remaunded or delivered and therefore if the King allow and give warrant to those that make the Return that they shall expresse the cause of the commitment as many times he doth either for suspition of felony or making money or the like we shall shew your Lordship that in these causes this Court in his Jurisdiction were proper to try these criminall causes and your Lordship doth proceed in them although the commitment be Per speciale mandatum domini Regis which hath not secret in it in these causes for with the warrant he sendeth your Lordship the cause of the committing and when these warrants are made and brought into this Court your Lordship may proceed but if there be no cause expressed this Court hath always used to remaund them for it hath been used and it is to be intended a matter of State and that it is not ripe nor timely for it to appear My Lord the main fundamentall grounds of Arguments upon this case beginnes with Magna Charta from thence have grown states for explanation thereof severall Petitions of Parliament and Presidents for expedition I shall give answers to them all For Magna Charta in the 29 Chapter hath these words No Free-man shall be taken nor imprisoned or disseised of his freehold liberties nor free customes nor be outlawed or exiled nor any other way destroyed nor we will not passe upon him nor condemn him but by lawfull Judgement of his Peers or by the Law of the Realm My Lord this statute

the statute of 28 Ed. 3. cap. 9. But before that statute this writ did lie in the speciall Case as is shewn in Brooks 9th Reports Powlters Case and the end of this writ was that the Subject might not be too long detained in prison as till the Justices of Eyre discharged them so that the Law intended not that a man should suffer perpetuall imprisonment for they were very carefull that men should not bee kept too long in prison which is also a Liberty of the Subject and my Lord that this Court hath bailed upon a suspition of high treason I will offer it to your Lordship when I shall shew you presidents in these cases of a commitment by the Privy Councell or by the King himself But before I offer these presidents unto your Lordship of which there be many I shall by your Lordships favour speak a little to the next exception and that is to the matter of the return which I finde to be per speciale mandatum domini Regis 8. and what is that it is by this writ there may be sundry commands by the King we finde a speciall command often in our Books as in the statute of Marlborough cap. 8. they were imprisoned Rediss shall not be delivered without the speciall command of our Lord the King and so in Bracton De Actionibus the last chapter where it appears that the King commandment for imprisonments is by speciall writ so by writ again men are to be delivered for in the case of Rediss ' or Post Rediss ' if it shall be removed by a Certiorare is by a speciall writ to deliver parties so that by this appears that by the Kings commandment to imprison and to deliver in those cases is understood this writ and so it may be in this case which wee have heard And this return here is a speciall Mandatum it may bee understood to be under some of the Kings Seals 42 Ass and ought to be delivered and will you make a difference betweene the Kings command under his seal and his command by word of mouth what difference there is I leave it to your Lordships judgement but if there be any it is the more materiall that it should be expressed what manner of command it was which doth not here appear and therefore it may be the Kings command by writ or his command under his seal or his command by word of mouth alone And if of an higher nature there is none of these commands then the other doubtlesse it is that by writ or under seal for they are of record and in these the person may be bailed and why not in this As to the legall forme admitting there were substances in the return yet there wants legall form for the writ of Habeas Corpus is the commandment of the King to the Keeper of the prisons and thereupon they are to make return both of the body and of the cause of the commitment and that cause is to appear of them who are the immediate Officers And if he doth it by signification from another that returne is defective in Law and therefore this return cannot be good for it must be from the Officer himself and if the cause returned by him be good it bindes the prisoners The warrant of the Lords was but a direction for him he might have made his return to have been expresly by the Kings commandment there was warrant for it I shall not need to put you cases of it for it is not enough that he returns that he was certified that the commitment was by the Kings command but he must of himself return this fact as it was done And now my Lord I shal offer to your Lordship presidents of divers kindes upon commitments by the Lords of the Privy Councell upon commitments by the speciall command of the King and upon commitments both by the King and the Lords together And howsoever I conceive which I submit to your Lordship that our case will not stand upon presidents but upon the fundamentall Laws and Statutes of this Realm and though the presidents look the one way or the other they are to be brought back unto the Lawes by which the Kingdome is governed In the first of Henry the eighth Rot. Parl. 9. one Harison was committed to the Marshalsey by the command of the King and being removed by Habeas Corpus into the Court the cause returned was that he was committed per mandatum Domini Regis and he was bailed In the fortieth of Elizabeth Thomas Wendon was committed to the Gatehouse by the commandment of the Queen and Lords of the Councell and being removed by an Habeas Corpus upon the generall return and he was bailed In 8 Jacobi one Caesar was committed by the Kings commandment and this being returned upon his Habeas Corpus upon the examination of this case it doth appear that it was over-ruled that the return should be amended or else the prisoner should be delivered The presidents concerning the commitment by the Lords of the Councel are in effect the same with these where the commitment is by the reason why the cause of the commitment should not be shewn holds in both cases and that is the necessity of suit and therefore Master Stamford makes the command of the King and that of the Lords of the Privy Councell to be both as one and to this purpose if they speak he speaks and if he speaks they speak The presidents that we can shew you how the Subject hath been delivered upon commitment by the Lords of the Councel as in the time of Henry the eight as in the times of Queen Elizabeth Queen Mary are infinite as in the ninth of Elizabeth Thomas Lawrence was committed to the Towre by the Lords of the Councell and bailed upon an Habeas Corpus In the 43 of Elizabeth Calvins case In the third of Elizabeth Vernons case These were committed for high treason and yet bailed for in all these cases there must be a conviction in due time or a deliverance by Law There be divers other presidents that might be shewn to your Lordship In 12 Iacobi Miles Renards In 12 Jacobi Rot. 155. Richard Beckwiths case In 4 Iacobi Sir Thomas Monson was committed for treason to the Towre of London and afterwards was brought hither and bailed and since our case stands upon this return and yet there is no sufficient cause in Law expressed in the return of the detaining this Gentleman and since these presidents doe warrant our proceedings my humble suit unto this Court is that the Gentleman Sir Iohn Henningham who hath petitioned his Majesty that he may have the benefit of the Law and his Majesty hath signified it It is his pleasure that justice according to the Law should be administred at all times in generall to all his Subjects and particularly to these Gentlemen which is their birth-right My humble suit to your Lordship is that these Gentlemen may have the

faict si upon an action of trespasse brought for cutting of trees the defendant pleadeth that the place where he cut them is parcell of the Manor of D whereof the King is seised in fee and the King commanded him to cut the trees and the opinion of the Court there is that the plea in bar was ill because he did not shew any speciall commandment of the King and there it is agreed by the whole Court that if the King commandeth one to arrest another and the party commanded did arrest the other an action of trespasse or false imprisonment is maintainable against the party that arrested him although it were done in the presence of the King 39 H. 6. 17. where one justifieth the seisure of the goods of a person that is outlawed by the commandment of the King such a party being no Officer may not in an action brought against him have any aid of the King for such a commandment given to one that is not an Officer will not any ways avail him that is to justifie himself by the return of that commandment 37. Hen. 6. 10. If the King give me a thing and I take the same by his commandment by word of mouth it is not justified by law nothing may passe without matter of Record 10 Hen. 7. 7. 17. 18. it is agreed that Justices may command one to arrest another that is in their view or presence but not one that is out of their view or presence And Keble 10 Hen. 7. 13. said that where one is arrested by a parroll command in their view or presence it is fitting that a record may be made of it insomuch that without such a record there can hardly be a justification in another Term. Secondly there is a commandment of the King by his Commission which according unto Calvins case in the seventh Report it is called by him breve mandatum non remediabile and by virtue of such a commandment the King may neither seise the goods of his subject nor imprison his body as it is resolved in 42 Ass pl. 5. where it is agreed by all the Justices that a Commission to take a mans goods or imprison his body without indictment or suit of the party or other due processe is against the Law Thirdly there is a commandment of the King which is grounded upon a suggestion made to the King or to his Councell and if a man be committed to prison by such a suggestion by commandment of the King it is unlawfull and not warranted by the law of the Realm The 25 of Edward the third cap. 4. de Provisoribus whereas it is contained in the great Charter of the Franchises of England that none shall be imprisoned or arrested of his Free-hold or of his Franchises nor of his free customes but by the law of the land It is awarded consented and established that from henceforth none shall be taken by petition or suggestion made to our Soveraign Lord the King or to his Councell untill it be by indictment or presentment of his good and lawfull neighbours where such deeds are done in due manner or by processe made by writ originall at the Common law nor that none shall be arrested of his Franchises nor of his free-hold unlesse he be duly brought in and answer and forejudged of the same by way of law and if any thing be done against the same it shall be redressed and holden for nought 37 Ed. 3. cap. 10. although it be contained in the great Charter that no man be taken or imprisoned or put out of his freehold without due processe of the law neverthelesse divers persons make false suggestions to the King himself as well for malice as otherwise whereof the King is often grieved and divers of the Realm put in great damages contrary to the form of the same Statute Wherefore it is ordained that all they that make such suggestions be sent with their suggestions to the Chancelour or Treasurer and they and every of them finde sureties to pursue their suggestions and endure the same pain that the other should have had if in case that his suggestion be found untrue and that then processe of the law be made against them without being taken or imprisoned against the form of the same Charter and other statutes So that it appears by these severall statutes that such commandments of the King as are grounded upon suggestion either made to himself or to his Councell for the imprisonment of a man are against the law Fourthly I find that there is a commandment of the King which is made under his hand with his signet for in the fourth and the fifth of Philip and Mary Dier 162. where the statute of ● Ric. 2. cap. 11. restraineth the Warden of the Fleet for letting any man at large that is in upon judgement at the suit of any man except it be by writ or other commandment of the King It was doubted whether the Queen by letter under her hand and privy signet doth give commandment to the Warden of the Fleet to suffer a man that is there in execution to goe about his businesse or the affaires of the Queen whether this be a warrantable command or not within the Statute and the Law hath alwayes been conceived upon that book that such a commandment is not warrantable by Law and if such a command will not serve the turn to give unto a man his liberty which the law favoureth and had the countenance of an Act of Parliament for the doing of it then I conceive it should be a more strong case the King should not have power by his commandment to imprison a man without due processe of the Law and restrain him of his liberty when there had been so many Acts of Parliament made for the liberty of the subjects Fifthly I doe finde that there is the commandment of the King which is by his writ under the Great Seal or the seal of the Court out of which it issueth Regist f. 69. 70. in the writ de cautione admittenda I find the words mandatum Regis expounded to be breve Regis for the writ goeth Rex vic' Salutem Cum nuper ad requisitionem S. de Isle Canonici Lincolne venerabilis Patris H. Lincoln Episcopi ipso in remotis agente Vicarii general per Literas suas Patentes nobis significantis Nicho. B. dict Lincoln Dioc. propter manifestam contumaciam Authoritate ipsius Episcopi Ordinar excommunicat esse nec si velle c. vobis praeceperimus quod praefat c. satisfactum ex parte ipsius N. qui virtute mandati nostri praedict per vos Capt. in Prison nostra de Newgate detent existit c. nos nolentes quod praefat N. per breve nostrum praedict via praecludatur c. pr●sequi possit in forma Iuris maxim c. integer esse debeat vobis praecipimus quod scire c. quod sit c. quare praedict N.

à Prisona praedict deliberari non debeat Rex justiciar suis de Banco salut Cum nos nuper ad significationem S. de Isle c. usque ibi excommunicat extitisse nec se velle c. esset satisfactum ex parte ipsius N. virtute manditi nostri praed capt in Prisona nostra de Newgate tuncdetenti c. et nolentes eo praetextu praefato N. per breve nostrum praed via praecludat quo minus appellac suae negotium c. processerat appellant statut c. per breve nostrum praeceperimus praefat vic quod scire facerent c. vobis signific consult circumspect in Placitis per breve praedict coram vobis pendentibus procedere valeatis secundum legem consuetudinem Regni nostri Stamf. 72. 5 E. 3. c. 8. 1. E. 3. c. 9. saith that every Capias in a personall action is a commandment of the King for it is Praecipimus tibi quod capias c. and yet the defendant as there it is said is replevisable by the Common law 7 R. 20. a. Calvins case saith that there are two kind of writs viz. brevia mandatoria remedi●lia brevia mandatoria non remedialia brevia mandatoria remedialia are writs of Right Formedon c. debts trespasses and shortly all writs reall and personall whereby the party wronged is to recover somewhat and to be remedied for that wrong which is done unto him Sixthly I doe finde by our books of Law and by the Register that this speciall mandatum domini Regis is expounded to be his writ and that the Law taketh no notice of any other speciale mandatum then by this writ the which being so when the return is made that he is imprisoned and detained in prison by the speciall commandment of the King how can the Court adjudge upon this return that Sir Iohn Corbet ought to be kept in prison and not to be bailed when the nature of the speciall commandment is not set forth in the return whereby it may appear unto the Court that he is not bailable In Bracton c. 12. 112. you shall see a writ reciting Praecipimus tibi quod non implacites nec impl●citari permittas talem de libero tenemento suo in tali villa sine speciali praecepto nostro vel Capitalis Justiciar ' nostri And the reason of it there is given quia nemo de libero tenemento sine brevi sive libello conventionali nisi gratis voluerit respondebit So as the exception of speciall commandment by the very book appeareth to be breve sive libellus conventionalis Regist 271. the writ of Manucaption goeth in this manner Rex vic Salut Cum nuper assignaverimus dilectos et fideles nestros A. B C. D. ad inquisitiones de forstallariis et transgressionibus contra formam statuti dudum apud Winton editi in com tuo faciend et ad illos quos inde culpabiles invenirent capiend in Prisona nostra salvo custod faciend donec aliud inde praecepissemus quod C. D. et E. pro hujusmodi forstallamentis transgressionibus unde coram praefat A. B. C. indict fuerint capt in Prisona de L. detent exist à qua deliberari non possunt sine mandato nostro speciali Nos volentes eisdem C. D. E. gratiaem in hac parte facere specialem tibi praecipimus quod si praedict C. D. et E. occasione praedict et non alia in Prisona p●…dict detineantur et pro transgressionibus illis secundum legem consuetudinem Regni nostri Angliae replegiabiles existunt c. tunc impos C. D. et E. à Prisona praedict si ea occasione et non alia detineantur in eadem interim deliberari facias per manucapt supradict et habeas ibi tunc coram praefat Justiciar nomina manucapt illorum et hoc breve And the exposition of this speciale mandatum domini Regis mentioned in the writ is expounded to be breve domini Regis thereupon is this writ directed unto the Sheriffe for the delivery of them And so for the first branch of the first part I conclude that the speciall command of the King without shewing the nature of the commandment of the Kings is too generall and therefore insufficient for he ought to have returned the nature of the commandment of the King whereby the Court might have adjudged upon it whether it were such a commandment that the imprisonment of Sir Iohn Corbet be lawfull or not and whether it were such a commandment of the King that although the imprisonment were lawfull at the first yet he might be bailed by Law And as for the generall return of speciale mandatum domini Regis without shewing the cause of the imprisonment either speciall or generall I hold that for that cause also the return is insufficient First in regard of the Habeas corpus which is the commandement of the King onely made the 15 of November According to the Teste of the writ commanding the keeper of the Gatehouse to have the body of Sir Iohn Corbet una cum causa detentionis et ad subjiciendum et recipiendum ea quae curia nostra de eo ad tunc ibid. ordinar conting●… ' So as the commandment of the writ being to shew the cause of his detaining in prison the keeper of the Gatehouse doth not give a full answer unto the writ unlesse the cause of the detainment in prison be returned and the Court doth not know how to give their judgement upon him either for his imprisonment or for his discharge according to the purport of the writ when there is not a cause returned and forasmuch as upon an excommengement certified it hath been adjudged oftentimes that Certificates were insufficient where the cause of the commitment hath not been certified that the Court might adjudge whether the Ecclesiasticall Judges who pronounced the excommunication had power over the originall cause according to the book of 14 Hen. 4. 14. 8. Rep. 68. Trollops case 20 Ed. 3. Excommengement 9. So upon an Habeas corpus in this Court where a man hath been committed by the Chancelour of England by the Councell of England Marches of Wales Warden of the Stanneries High Commission Admiralty Dutchy Court of Request Commission of Sewers or Bankrupts it hath severall times been adjudged that the return was insufficient where the particular cause of imprisonment hath not been shewn to the intent that it might appear that those that committed him had jurisdiction over the cause otherwise he ought to be discharged by the Law I spare to recite particular causes in every kinde of these because there are so many presidents of them in severall ages of every King of this Realm and it is an infallible maxime of the Law That as the Court of the Kings Bench and Judges ought not to deny an Habeas corpus unto any prisoner that shall demand