Iohannis de Sprink Iohannis Ermond de Dunberke unde rectatus est habet literas Regis Vic' Kanc ' quod ponatur per Ball ' usque ad primam Assiss Si ea occasione c. Teste rege apud Cestre 29. Iunij Pro morte hominis Radūs Corynn capt detentus in Gaole Regis de Lincolne pro morte Willielmi Filij Symonis Porter unde rectat est habet literas Regis Vic' Lincolne quod ponatur per Ball ' usque ad primum Assiss Si ea occasione c. Teste rege apud Sheene 3. die Iunij Membrana 7. Pro morte hominis Iohannes de Githerd Capt ' detent in prisona Regis Ebor ' pro morte Mathei Sampson de Ebor ' unde rectatus est habet literas Regis Vic' Ebor ' quod ponatur per Ball ' usque ad prim ' Assiss Dat. apud Langele 50. die Aprilis Claus 3. Ed. 2. Membr 3. Pro morte hominis Adam de Pepper captus detent in Gaole Regis Ebor ' pro morte Henrici de Syner ' de Eastrick unde rectatus est habet literas Regis Vic' Ebor ' quod ponat ' per Ball ' usque ad primum Assiss Teste rege apud Westminst 7. die Febr. Numero 14. Pro morte 2. femes Margareta uxor Willielmi Colbot capta detenta in Gaol Regis Norwici pro morte Agnetis filiae Willielmi Colbot Matildae sororis ejusdem Agnetis unde rectata est habet literas Regis Vic' Norff. quod ponatur per Ball ' Teste rege apud Sheene 22. Ianuar. Numero 16. Pro morte hominis Iohannes Frere Captus detent in Gaole Regis Oxon. pro morte Adae de Egeleigh unde rectata est habet literas Regis Vic' Devon quod ponatur per Ball ' Teste rege apud Westminst 8. Decembr Claus Anno 4. Ed. 2. Membr 7. Pro morte hom Robertus Shrene Capt. detent in Gaole Regis de Colchester pro morte Roberti le Maigme unde rectat est habet literas Regis Vic' Essex quod ponatur per Ball ' usque ad prim ' Assiss Dat. 22. die Maij. Numero 8. Pro morte hom W. Filius Robertile Fishere de Shirborne capt detent in Gaole Regis Ebor ' pro morte Roberti le Monus de Norton unde rectatus est habet literas Regis Vic. Ebor. quod ponatur per Ball. usque ad primam Assiss Dat. 25. April Claus Anno 4. Ed. 2. Numero 22. Pro morte hom Thomas Ellis de Stanford capt detent in prisona Regis Lincolne pro morte Michaelis filii Willielmi de Fodering unde rectat est habet literas Regis Vic. Lincolne quod ponatur per Ball ' usque ad prim Assiss Teste Rege apud novum monasterium 8. die Septembr Mr. Seldens Argument The Argument which by the Command of the House of Commons was made at their first conference with the Lords touching the personall libertie of the person of every Free-man out of Presidents of Record and resolutions of Judges in former times MY LORDS YOur Lordships have heard from the Gentleman that last spake a great part of the grounds upon which the House of Commons upon mature deliberation proceeded to that cleere resolution touching the right of the libertie of their persons The many Acts of Parliament which are the written lawes of the Land and are expresly in the point have beene read and opened and such Objections as have beene by some made to them and some Objections also made out of another Act of Parliament have beene cleered and answered It may seeme now perhaps my Lords that little remaines needfull to bee further added for the inforcement and maintenance of so fundamentall and established a right and libertie belonging to every Free-man of the Kingdome But in the examination of questions of Law of right besides the Lawes or Acts of Parliament that ought chiefly to direct and regulate every mans judgement whatsoever hath beene put in practise to the contrary there are commonly used also former Judgements or Presidents and indeed have beene so used sometimes that the weight of reason of law and of Acts of Parliament hath been laid by and resolutions have beene made and that in this very point only upon the interpretation and apprehension of Presidents Presidents my Lords are good media or proofes of illustration or confirmation where they agree with the expresse Law but they can never bee proofe enough to overthrow any one law much lesse seven severall Acts of Parliament as the number of them is for the point The house of Commons therefore taking into consideration that in this question being of so high a nature that never any exceeding it in any Court of Justice whatsoever all the severall wayes of just examination of the truth should be used have also most carefully informed themselves of all former judgements or presidents concerning this great point either way and have beene no lesse carefull of the due preservation of his Majesties just prerogative then of their owne rights The Presidents here are of two kinds either meerely matter of record or else the former resolutions of the Judges after solemne debate in the point This point that concernes presidents the House of Commons have commanded me to present to your Lordships which I shall as briefly as I may so I doe it faithfully and perspicuously To that end my Lords before I come to the particulars of any of those Presidents I shall first remember to your Lordships that which will seeme as a generall key for the opening and true apprehension of all them of Record without which key no man unlesse he be verst in the entries and course of the Kings Bench can possibly understand them In all cases my Lords where any right or libertie belongs to the Subjects by any positive law written or unwritten if there were not also a remedie by Law for the enjoying or regaining this right or libertie when it is violated or taken from him the positive law were most vaine and to no purpose and it were to no purpose for any man to have any right in any land or other inheritance if there were not a knowne remedie that is an action or writ by which in some Court of ordinary Justice he might recover it And in this case of right of libertie of person if there were not a remedie in the Law for regaining it when it is restrained it were of no purpose to speak of lawes that ordain it should not be restrained Therefore in this case also I shall first shew you the remedie that every Free-man is to use for the regaining of his libertie when he is against law imprisoned that so upon the legall course and forme to be held in using that remedie the Presidents or Judgements upon it for all Judgements of Record rise out of this remedie may bee easily understood There are in
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
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
those of the second kind or such as are pretended that persons so committed are not to be inlarged by the Iudges upon the habeas corpus brought but to remaine in prison still at the command of the King or the privie Counsell Presidents del 2. sort vouch ê‘ le Roy. These are of two natures the first of these are where some assent of the King or the privie Counsell appeares upon the inlargement of a prisoner so committed as if that because such assent appeares the inlargement could not have beene without such assent The second of this kind are those which have beene urged as expresse testimonies of the Iudges denying bayle and in such cases I shall open these also to your ships which being done it will most clearely appeare that there is nothing at all in any of these that makes any thing at all against the resolution of the house of Commons touching this point nay it is so farre from their making any thing against it that some of them add good weight also to the proofe of that resolution Temps H. 7 Brugs Case For those of the first nature of this second kind of Presidents they begun in the time of H. 7. Tho. Brugge and divers others were imprisoned in the Kings ad mandatum Dom. Regis they never sought remedy by habeas corpus or otherwise for ought appeares But the Roll sayes that Dominus Rex relaxavit mandatum and so they were bayled But can any man think that this is an Argument either in Law or common reason that therefore they could not have beene bayled without such assent It is common in Cases of common persons that one being in prison for surety of the peace or the like at the suit of another is bayled upon the release of the party plaintiffe Can it follow that therefore he could not have beene bayled without such release nothing is more plain then the contrary It were the same thing to say that if it appeare that if a plaintiff be non suit therefore unlesse he had been non suit he could not have been barred in the suit The Case last cited is Mich. 7. H. 7 rot 6. 7 H. 7. Bartholomews Case The very like is in the same yeare Hill 7. H. 7. Rot. 13. The Case of Will. Bartholomew Will. Chase and divers others and the selfe same answer that is given to the other cleares this 7 H. 7. Beomonds Case So in the same yeare Pas 7. H. 7 rot 18. Iohn Beomonds Case is the same in substance with those other two and the self same answer also satisfies that cleares them 12 H. 7. Yews Case The next Case is Mich. 12. H. 7. rot 8. Tho. Yews Case hee was committed ad sec pacis for the security of the peace at the suit of one Freeman and besides ad mandatum Dom. Regis And first Freeman relaxavit sec pacis and then Sir James Hubbard the then Kings Attomey Generall relaxavit mandatum Dom Regis And hereupon he is bayled the release of the Kings Attomy no more proves that he could not have bin inlarged without such release or assent then that he could not have bin bayled without release of surety of the peace by Freeman 9 H. 7. Bochers Case The very like is in Hill 9. H. 7. rot 14. The Case of Humphry Boch which proves no more here then the rest of this kind already cited 39 Eliza. Broomes case Then for this point also Broomes Case of Queene Elizabeths time is Trim. 39. El. rot 128. Lawrence Broome was committed to the Gatehouse per mandatum Dom. Consilii Dominae Reginae And being returned so upon the habeas corpus is first committed to the Marshalsey as the course is and then bayled by the Court which indeed is an expresse president that might perhaps well have been added to the number of the first 12 which so plainly shew the practise of inlarging prisoners in this Case by judgment of the Court upon the habeas corpus But it is true that in the scrowles of that yeare where the bayles are entred but not in the Record of the Habeas Corpus there was a note that this Broome was bayled per mandatum privati Consilii but plainly this is not any kind of Argument that therefore in law he might not have beene other wise bayled 40 Wendens Case The selfe same is to be said of another of this kind in Mich. 40. El. rot 37. Wendens Case Tho. Wenden was committed to the Gatehouse by the Queene and the Lords of the Counsell procertis causis generally he is brought by Habeas corpus into the Kings Bench and bayled by the Court But it is said that in the Scrowles of that yeare it appeares that his inlargement was pro consensum Dom. privati Consilii and it is true that the Queenes Attorney did tell the Court that the Lords of the Counsell did assent to it Followes it therefore that it could not have beene without such assent 43 Eliz. Next is Hill 43. El. rot 89. when divers Gentlemen of speciall quality were imprisoned by the command of the Privie Counsell the Queen being graciously pleased to inlarge them sends a comandement to the Iudges of the Kings Bench that they should take such a course for the delivering of them upon bayle as they should think fit and they did so and inlarged them upon Writs of hab corpus Followes it therefore that this might not have beene done by law if the parties themselves had desired it Iac. Sir Io. Brockets Case So in Tr. 1 Jac. rot 30. Sir Io. Brocket being committed to the Gatehouse is returned to stand committed pro mandatum pravati Consilii and hee is inlarged virtute warranti a Consilio predicti But the same answer that satisfie for the rest before cited serves for this also 12 Iac. James Reynar Case The last of these is Reynars case in Mich. 12. Iac. rot 119. hee was committed to the Gatehouse by the Lords of the Counsel and being brought into the Kings Bench by Habeas Corpus is inlarged upon bayl but this they say was upon a letter written from one of the Lords of the Counsell to the Iudges It is true that such a letter was written but the answer to the former presidents of this nature are sufficient to cleare this also And in all these observe 1 That it appeares not that the party ever desired to be inlarged by the Court or was denied it 2 Letters either from the King or Counsell cannot alter the law in any case So that hitherto nothing hath beene brought on the coÌ„trary part that hath any force or colour of reasoÌ„ in it Wee come now my Lords to those presidents of the other nature cited against the liberty of the Subject That is such as have beene used to mislike that persons so committed may not be inlarged by the Court. They are in number eight but there is not one
of them that proves any such thing as your Lordships will plainly see uponopening them The first foure of them are exactly in the same words saving that the names of the persons and the prisons differ I shall therefore recite them all one after another and then cleare them together 7 H. 7. Everards Case The first is Richard Everards case Hill 7. H. 7. rot 18. he and others were committed to the Marshalley of the Houshold per mandatum Dom. Regis and so returned upon a habeas corpus into the Kings Bench whereupon the entry is onely Qui committitur Marr. c. 8 H. 7. Cherries Case The second is Hill 8. H. 7. Richard Cherries case he was committed to the Major of Windsor per mandatum Dom. Regis and so returned upon a habeas corpus and the entry is onely Qui committitur Marr. c. 9 H. 7. Burtons Case The third is Hill 9. H. 7. rot 14. Christopher Burtons case who was committed to the Marshalsey of the Houshold per mandatum Dom. Regis and so returned upon his habeas corpus and the entry is likewise Qui committitur Marr. c. 19 H. 7. Vrswicks Case The fourth is George Vrswicks case Pas 19. H. 7 Rot. 19. he was committed to the Sheriffs of London per mandatum Dom. Regis and returned so upon his habeas corpus Qui committitur Marr. c. These foure have beene used principally as expresse presidents to prove that a prisoner so cōmitted cannot be inlarged and perhaps at the first sight to men that know not and observe not the course and entries of the Court of Kings Bench they may be apprehended to prove as much but in truth they rather prove the contrary at least there is no colour in them of any such matter as they have beene used for To which purpose I beseech your Lordships to call to your memories that which I first observed to you touching the course of that Court Where a prisoner is brought in by habeas corpus he is if he be not to be remanded first committed to the Marshall of the Court and then bayled as his case requires This is so certaine as it can never be otherwise Now these men being thus committed expresse command of the King are first you see taken from the prisons whither they were first committed wherein you may observe my Lords that if a generall suspition of matter of State were of force in such a case it might be as needfull in point of State to have the prisoner remain in the prison where the King by such an absolute command committed him as to have him at all committed when they have taken them from the prisons where before they were they commit them to the Marshall of their owne Court which is but the first step to bayling them now it appeares not indeed that they were bayled for then Traditur in Ball. had followed but nothing at all appeares that they were denied it perhaps they never asked it perhaps they could not finde such as were sufficient to bayle them And in truth whensoever any man is but removed from any prison in England though it be for debt or trespasse onely into that Court the entry is but in the selfe same sillables as in these foure cases And in truth if these proceedings did prove that any of the prisoners named in them were not bayleable or had beene thought by the Court not to have beene bayleable it will necessarily follow that no man living that is ordinarily removed from any prison into the Kings Bench or that is there upon any ordinary action of debt or action of trespasse could bee bayled for every man that is brought thither and not remanded and every man that is arested but for a debt or trespasse and was returned into that Court is likewise committed to the Marshall of that Court and by the selfe same entry and not otherwise yet these foure havebeen much stood on and have strangely misled the judgement of some that did not or would not seeme to understand the course of that Court. 7 H. 8. Pages Case The fifth of this nature is Edward Pages case it is Tr. 7. H. 8. this might have beene well reckoned with the former foure had not the misentry of the Clerk only made it vary from them Ed. Page was committed to the Marshalsea of the Houshold and that per mandatum Dom. Regis and returned to be therfore detained and the entry is Qui committitur Marr. Hospitii Dom. Regis This word Marr. is written in the Margine of the roll this hath beene used to prove that the Judges remanded this prisoner if they had done so the remanding had beene onely while they advised and not any such award which is given when they adjudge him not bayleable but in truth the word Committitur shewes that there was not any remanding of him nor doth that Court ever commit any man to the Marshalsea of the Houshold and besides the word Marr. for Marrescallo in the Margine shewes plainly that he was committed to the Marshall of the Kings Bench and not remanded to the Marshalsea of the Houshold for such entry of that word in the Margine is perpetually in cases of that nature when they commit a man to their owne prison and so give him the first step to baylement which he may have if he ask it and can finde bayle and doubtlesse these words of Hospitii pred were added by the error of the Clerk for wnat of distinction in his understanding from the Marr. of the Kings Bench to the Marshall of the Houshold 8 Iac. Caesars Case The sixth of these is Tho. Caesars Case it is 8 Iac. rot 99. This Casar was committed to the Marshalsea of the Houshold per mandatum Dom. Regis and returned to be therefore detained and indeed a remittitur is in the roll but not a remittitur quousque but onely that kind of remittitur which is onely used while the Court advises And in truth this is so farre from proving any thing against the resolution of the House of Commons That it appeares that the opinion of the reverend Judges of that time was that the returne was insufficient and that if it were not amended the prisoner should be discharged For in the Book of Rules in the Court of Mich. Terme when Caesars Case was in question they expresly ordered that if the Stewards Marshall did not amend their returne the prisoner should be absolutely discharged the words of the Rule are Nisi Seneschalus Maniscal Hospitii Dom Regis sufficientur returnaverint brevem de Habeas Corpus Thome Caesar dier mercur prox per ost quindenam scilicet Martium def exonerabitur And this is also the force of that President but yet there hath beene an interpretation upon this rule It hath beene said that the Judges gave this rule because the truth was that the returne was false and that it was well knowne that
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
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
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