he renders taken by the command of of the Justices thus per judicium Justiciariorum and his Preface to the Statute plainly sheweth that he understood it of replevine by Sherifs for he saith Qui debent per plegios hoc dimitti qui non declarat hoc Statutum and per plegios is before the Sherife But for direct authority 22. H. 6. 46. ê‘ Newton Chiefe Iustice it is the opinion of Newton Chiefe Justice 22. H. 6 46. where his words are these It cannot be intended that the Sherife did suffer him to goe at large by Mainprise for where one is taken by the Writ of the King or the Commandement of the King he is irrepleviseable but in such case his friends may come to the Justices from him if he be arrested and purchase a Supersedeas This Judge concludes that the Sherife cannot deliver him that is taken by the command of the King for that he is irrepleviseable which is the very word of the Satute but saith he his friends may come to the Justices and purchase a Supersedeas So he declares the very question that the Sherife had no power but the Justices had power to deliver him that is committed by the Kings command and both the ancient and moderne practise manifest as much for he that is taken for the death of a man or for the Forrest is not repleviable by the Sherife yet they are ordinarily bayled by the Justice and were by the Kings Writs directed to the Sherifs in the times of Ed. 1. and 2. as appeares in the close rolls which could not be done if they were not baylable And it is every dayes experience that the Justices of the Kings Bench doe bayle for Murther and for offences done in the Forrest which they could not doe if they were irrepleviseable if Westminst 1. were meant of the Justices aswell as of the Sherifs For authorities that have beene offered to prove the contrary are in number three the first is 21. Ed. 3. Rot. 2. which also is in the Booke of Pleas in Parliament at the Tower upon an action there brought fol. 44. It is not an Act of Parliament but a resolution in Parliament upon an action there brought which was usuall in those times And the case is that Stephen Rabaz the Sherife of the Counties of Leicester and Warwicke was questioned for that he had let at large by Surety amongst others one William the sonne of Walter le Pesons against the will and command of the King whereas the King had commanded him by Letters under the Privie Seale that he should doe no favour to any man that was committed by the Earle of Warwicke as that man was whereunto the Sherife answered that he did it at the request of some of the Kings houshold upon their Letters and because the Sherife did acknowledge the receipt of the Kings Letters thereupon he was committed to prison according to the forme of the Statute To this I answer the Sherife was justly punished for that he is expresly bound by the Statute of Westminst 1. which was agreed from the beginning but this is no proofe that the Iudges had no power to bayle this man The next Authority is 33. H. 6. in the Court of Common Pleas fo 28. b. 29. where Sobert Poyning Esquire was brought to the Barre upon a Capias and was returned that he was committed Per Duos de Consilio which is strongest against what I maintaine pro diversis causis regem tangent and he made an Attorney there in an action whence it 's inferred that the returne was good and the party could not be delivered To this the answer is plaine First no opinion is delivered in that booke one way or other upon the returne neither is there any testimony whether he were delivered or bayled or not 2. It appeares expresly that he was brought thither to be charged in an action of debt at another mans suit and no desire of his owne to bee delivered or bayled and then if hee were remanded it is in no way materiall to the question in hand But that which is most relied upon is the opinion of Stan. in his Booke of Pleas of the Crowne lib. 2. cap. 18. fol. 72. 73. in his Chapter of Mainprise where hee reciteth the Statute of Westminst 1. cap. 15. and then saith thus Rns al Obi. hors de Stan. pl. Cor ' 72. By this Statute it appeares that in foure cases at the Common law a man was not repleaviable to wit those that were taken for the death of a man by the command of the King or his Justices or for the Forrest thus farre he is most right then hee goeth on and saith as to the command of the King that is understood by the command of his owne mouth or his counsell which is incorporated unto him and speake with his mouth or otherwise every Writ or Capias to take a man which is the Kings command would be as much and as to the command of the Juces that is meant their absolute commandment for if it bee by their ordinary commandment he is repleviable by the Sherife if it be not in some of the cases prohibited by the Statute The answer that I give unto this is that Stanford had said nothing whether a man may be committed without cause by the Kings command or whether the Judges ought not to bayle him in such Case only that such a one is not repleviseable which is agreed for that belongs to the Sherife And because no man should thinke he meant any such thing hee concludes the whole Sentence touching the Command of the King and the Justices that one committed by the ordinary command of the Justice is repleviseable by the Sherife or at least it appeares not that he meant that a man committed by the King or by the Privie Counsell without cause should not be bayleable by the Justices and he hath given no opinion in this case what he would have said if he had beene asked the question cannot be knowne neither doth it appeare that by any thing that hee hath said hee meant any such thing as would bee inferred out of him And now my Lords I have performed the Commands of the Commons and as I conceive shall cleare the Declaration of personall libertie an antient and undoubted truth fortified with seven Acts of Parliament and not opposed by any Statute or authoritie of law whatsoever The objections of the Kings Counsell with like answers made thereunto at the two other Conferences touching the same matter IT was agreed by the Attorney generall that the 7. Statutes urged by the CoÌ„mons were in force and that magna Charta did extend most properly to the King but he said 1. Object 1. That some of them are in generall words and therefore conclude nothing but are to be expounded by the Presidents and others that bee more particular are applied to the Suggestions of Subjects and not to the Kings command simply of
replied by the Cōmons that all danger and inconvenience may be avoided by declaring a generall Cause as for Treason suspition of Treason misprision of Treason or felonie without specifying the particular which can give no greater light to a confederate then will bee conjectured by the very apprehension upon the imprisonment if nothing at all were expressed 5. Object It was further alledged that there was a kind of contradiction in the position of the House of Commons when they say a party committed without a cause shewed ought to be delivered or bayled Bayling being a kind of imprisonment deliverie a totall freeing Le Rns To this it hath beene answered that it hath alwayes beene the discretion of the Judges to give so much respect to a commitment by the Command of the King or the Privie Councell which are ever intended to be don in just and weighty causes that they will not presently let them free but bayle them to answer what shall be objected against them on his Majesties behalfe but if any other inferiour Officer doe commit a man without shewing cause they doe instantly deliver him as having no cause to expect their leasure So the delivery is applied to an imprisonment by the command of some meane minister of Justice Bayling when it is done by the command of the King or his Counsell 6. Object It was urged by Mr. Attorney that Bayling is a grace and favour of a Court of Justice and that they may refuse to doe it Le Rns This was agreed to be true in divers cases as where the cause appears to be for felony or other crimes expressed for that there is another way to discharge them in convenient time by their triall and yet in these cases the constant practise hath beene anciently and modernly to bayle men but where no cause of the imprisonment is returned but the Command of the King there is no way to deliver such persons by triall or otherwise but that of the Habeas Corpus And if they should be then remanded they might be perpetually imprisoned without any remedy at all and consequently a man that had committed no offence might be in worse case then a great offender for the later should have an ordinary tryall to discharge him the other should never be delivered 7. Objection It was further said that though the Statute of Westminster 1. cap. 15. be a Statute which by way of provision did extend only to the Sherife yet the recitall of that touching the foure causes wherein a man was not repleviseable at the common law namely those that were committed for the death of a man by the command of the King or of his Justices or for the Forrest did declare that the Justices could not bayle such a one and that repleviseable and bayleable were Synomina all one and that Stanford a Judge of great authoritie doth expound it accordingly Stan. pl. Cor. 72. and that neither the Statute nor he say repleviseable by the Sherife but generally without restraint And that if the chiefe Justice committed a man hee is not to be inlarged by any other Court as appeareth in the Register Le Rns To this it was answered That the recitall of the body of the Statute relateth only to the Sherife only as appeareth by the very words 2. That Repleviseable is to the Sherife for that the word imports no more but a man committed by the chiefe Justice is bayleable by the Court of Kings Bench. 3. That Stanford meaneth all of the Sherife or at least hee hath not sufficiently expressed that he intended the Justices 4. It was denied that Repleviseable and bayleable was the same for they differ in respect of the place where they are used bayle being in the Kings Court of record Repleviseable before the Sherife and they are of severall natures repleviable being a letting at large upon suretie bayling being when one traditur in Balliv the bayle are his Iaylors and may imprison him and shall suffer body for body which is not of replevying by Sureties and differeth from Mainprise in this Diversitie enter bayle mainprise Mainprise is an undertaking in a some certaine Bayling to answer the condemnation in Civill causes and for criminall body for body And the reasons and authorities in the first Conference were then renewed and no exceptions taken to any save that in 22. H. 6. it doth not appeare that the command of the King was by his mouth which must be intended or by his Counsell which is all one as is observed by Stanford for the words are that a man is not repleviseable by the Sherife who is committed by the Writ or the commandment of the King 21. Ed. 1. Rot. 2. Dors was Cyted by the Kings Counsell that it was answered that it concerned the Sherife of Leicester shire only and not the power of the Iudges 33. H. 6. the Kings Attorney confessed was nothing to the purpose and yet that Booke hath beene usually cited by those that maintaine the contrary to the Declaration of the Commons And therefore such sudden opinions as have been given thereupon are not to be regarded the foundation failing And where it was said that the French of 36. Ed. 3. Rot. parliamenti numero 9. which can receive no answer did not warrant what was inferred thence but that these words Sauns disturbance mettre ou arrest fair le contre per special mandement ou autre mannere must bee understood that the Statute should be put in execution without putting disturbance or making arrest to the contrary by speciall command or in other manner The Commons did utterly denie the interpretation given by the Kings Counsell and to justifie their owne did appeale to all men that understood the French and upon the 7. Statutes did conclude that their Declaration remained an undoubted truth not controlled by any thing said to the contrary Sir Edward Littletons Presidents The true Copies of the Records not printed which were used on either side of that part of the Debate Inter Record Domini Regis Caroli in Thesaurario Recept Scacarij sui sub custodia Thesaurar Camerar ibidem remanent viz. pl. Coram ipso Domino Rege consilio suo ad Parliamentum suum post Pasch apud London in Maner ' Arch-Episcopi Ebor ' Anno Regni Domini Regis Ed. 3. 21. inter alia sic continetur ut sequitur Rot. 2. indorso STephanus Rabaz Vicecomes Leic. Warw. coram ipso Domino Rege ejus Concilio arenatus ad Rudom positus de hac quod cum I. B. E. H. W. H. nuper balliv ' ipsius Vicecomitis per Dom. Regem fuissent assign ' ad Gaolas Domini Regis deliberand eidem vic' quendam W. P. per quendam appellatorem ante adventum eorum Justiciariorum ibidem appellat capt vivente ipso appellatore usque diem deliberationis coram eis fact demissat per pleviam contra formam Statuti
Quod Commissus fuit per mandatum Concilii Dominae Reginae qui committitur Marr. immediate traditur in Ballium Vn objection Rnde To this the like answer hath beene made as to that other Case of Overtons next before cited they say that in another roll of another terme of the same yeare it appeares he was in question for suspition of Coyning and it is true he was so But the returne and his Commitment mentioned in it have no reference to any such offence nor hath the Baylement of him relation to any thing but to the absolute commitment by the privie Counsell So that the answer to the like objection made against Overtons Case satisfies this also 9 El. Lawrences Case The sixth of these is of Queene Elizabeths time Mich. 9. El. Rot. 35 the case of Tho. Lawrence this Lawrence came in by Habeas Corpus returned by the Sheriffs of London to be detained in prison per mandat Consilij Dominae Regina qui Committitue Marr. super hoc traditur in Ballium Objection Rend An objection hath beene invented against this also it hath beene said that this man was pardoned and indeed it appeares so in the Margin of the roll where the word pardonatur is entred but clearely his in largement by Bayle was upon the body of the returne onely unto which that note of pardon in the Margin of the roll hath no relation at all and can any man think that a man pardoned for what offence soever it be might not as well be committed for some Arcanum or matter of State as one that is not pardoned or out of his innocencie wants no pardon 9 El. Constables Case The seaventh of these is in the same yeare and of Easter Terme following it is P. 9. El. Rot. 68 Ro. Constables Case he was brought by Habeas Corpus out of the Tower and in the returne it appeared he was committed there per mandatum privati Consiliidictae Dominae Reginae qui Comittitur Marr. posteae isto eodem ter traditur in Ball. The like objection hath beene made to this as that before of Lawrence but the selfe same answer clearely satisfies for them both 20 El. Brownings Case The 8. is of the same Queenes time in Pas 20 El Rot. 72. Iohn Brownings Case This Browning came by Habeas Corpus out of the Tower whether he had beene committed and was returned to have been committed per privat Consil Dominae Reginae qui comittitur Marr. postea isto codem termino traditur in Ball. Objection Rnde To this it hath beene said that it was done at the chiefe Justice Wrayes Chamber and not in the Court and thus the authority of the President hath beene lesned or sleighted If it had beene done at his Chamber it would have proved at least this much that Sir Christopher Wray then chiefe Justice of the Kings Bench being a grave learned and upright Judge knowing the Law to be so did Bayle this Browning and enlarge him and even so farre the President were of value enough but it is plaine that though the habeas corpus were returnable as indeed it appeares in the Record it self at his Chamber in Serjeants Inn yet he only committed him to the Kings Bench presently and referred the consideration of inlarging him to the Court who afterward did it For the Record sayes Et postea isto eodem termino traditur in Ball. which cannot be of an inlargement at the chiefe Justice Chamber 40 El. Hare-Courts Case The ninth of this first kind is Hill 40. El. Rot. 62. Edward Hare Courts Case hee was imprisoned in the Gatehouse and that per Domines de private Consilio Dominae Reginae pro certis causis eos moventibus ei ignotis And upon his habeas corpus was returned to be therefore onely detained Qui Comittitur Marr. postea isto eodem termino traditur in Ball. To this never any colour of answer hath beene yet offered 43 El. Catesbies Case The tenth is Catesbies Case in the vacation after Hill Term 43. El. Rot. Robert Catesbie was cōmitted to the Fleet per war rantum diversor pro nobilium viroy de privato Consilio Domine Regina He was brought before Iustice Fenner one of the then Iustices of the Kings Bench by Habeas Corpus at Winchester house Southwark Et homiss fuit Marr. per prefat Edwardum Fenner statim traditur in Ball. 12 Iac. Beckwiths Case The eleventh is Rich Beckwiths Case which was in Hill 12 of K. Iames Rot. 153. He was returned upon his Habeas corpus to have beene committed to the Gatehouse by divers Lords of the privie Counsel Qui committitur Marr. postea esto eodem termino traditur in Ball. Objection Rnde To this it hath bin said by some that Beckwith was bayled upon a letter written by the Lords of the Counsell to that purpose to the Iudges but it appeares not that there was ever any letter written to them to that purpose which though it had beene would have proved nothing against the authority of the Record for it was never heard of that Iudges were to be directed in point of law by letters from the Lords of the Counsell although it cannot bee doubted but that by such letters sometimes they have been moved to bayle men that would or did not ask their inlargement without such letters as in some examples I shall shew your Lordships among the presidents of the second kind 14 Iac. Sir Tho. Mounsons Case The 12 and last of these is that of Sir Tho. Mounsons Case it is Mich. 14. Jac. Rot. 147. Hee was committed to the Tower per warrantum a diversis Dominis de privato Consilio Domini Regis locum tenenti directum And he was returned by the Lievtenant to be therefore detained in prison qui committitur Marr. super hoc traditur in Ball. Objection Rnde To this it hath beene answered that every body knowes by common fame that this Gentleman was committed for suspition of the death of Sir Tho. Overbury and that hee was therefore bayleable a most strange interpretation as if the body of the return and the warrant of the privie Counsel should be understood and adjudged out of fame onely was there not as much a fame why the Gentlemen that were remanded in the last judgement were committed and might not the selfe same reason have served to enlarge them their offence if any were being I think much lesse then that for which this Gentleman was suspected And thus I have faithfully opened the number of 12 Presidents most expresse in the very point in question and cleared the objections that have beene made against them And of such presidents of Record as are of the first kinde which prove plainly the practise of former ages and judgement of the Court of Kings Bench in the very point on the behalfe the Subject my Lords hitherto I am come next to
no cause of such commitment deteyner or restraint being expressed for which by Law he ought to be committed deteyned or restrained and the same be returned upon a Habeas Corpus granted for the said party then he ought to be delivered or bayled All these without one negative that these Acts of Parliament and these Judiciall presidents in affirmance thereof recited by my Colleagues are but declarations of the fundamentall lawes of this Kingdome I shall prove by manifest and legall reasons which are the grounds and mothers of all lawes The first generall reason 1. The first generall reason is drawne are ipsa from imprisonment ex visceribus causae be it those or other imprisonments which is divided into three parts 1. First no man can be imprisoned at the will and pleasure of any but he that is bond and a villaine for that imprisonment at will is tailes luy haut base are propria quarto modo to villaines 2. But if Free-men of England might be imprisoned at the wil and pleasure of the King by his commandment then were they in worse case then bond-men villaines for the lord of a villain cannot command another to imprison his villain without cause as of disobedience or refusing to serve as it is agreed in our Bookes 3. Imprisonment is accounted in law a civil death perdit domum familiam vicinos patriam his house is family his wife his children his neighbours his Country and to live among wretched wicked men 39 H. 6. fo 50. 41. Ed. 3. 9. If a man be threatned to be killed he may avoid a feoffment of lands gift of goods c. So it is if he be threatned to be imprisoned he shall doe the like for that is a civill death The second generall reason Bracton 105. fo 15. The second generall reason is a Minore ad majus paena corporalis est majus qualibet pecuniaria but the King himselfe cannot impose a fine upon any man but it must be done juditially by his Judges per Iusticiar ' in Cur ' non per Regem in Camera 2. R. 3. 11. and so it hath beene resolved by all the Judges of England The third generall reason The third generall reason is drawne from the number and diversity of remedies which the law giveth against imprisonment vizt brevia de Homine replegiande de odio Atia de habeas corpus bre de manucaptiene The two former of these are antiquated but the writ de odio Atia is revived for that was given by the Sat. of Magna Car ' cap. 26. and therefore though it were repealed by the Stat. of 28. Ed. 3 ca 9. yet it is revived by the Stat. of 43. Ed. 3. cap. 1. by which it is provided that all Statutes made against Magna Charta are void now the law would never have given so many remedies if the Freemen of England might have beene imprisoned at Free will and pleasure The fourth generall reason The fourth generall reason is drawne from the extent universality of the pretended power to imprison for it should not extend onely to the Commons of the Realme and their posterity but to the Nobility and their Honourable Progenies to the Bishops and Clergie of the Realme and their Successours to all persons of what condition or sex or age so ever to all Judges Officers c. whose attendance are necessary without exception of any person The fifth generall reason The fifth generall reason is drawne from the indefinitenesse of time the pretended power being limited to no time it may be perpetuall during life The sixth generall reason The sixth generall reason is drawne a dedecore from the losse and dishonour of the English nation in two respects 1. For their valour and power so famous through the whole world 2. For their industry for who will endeavour to imploy himselfe in any profession either of Warre liberall Science or Merchandize if he be but tennant at will of his liberty and no tennant at will will support or improve any thing because he hath no certaine estate and thus it should be both dedecus and damnum to the English nation and it should be no honour to the King to be King of a slaves The seventh generall reason The seventh generall reason is drawne ab utili et inutili for that appeareth by the Stat. of 36 Ed. 3. that the execution of the Statute of Magna Charta 5. Ed. 3. 25. Ed. 3. 28. Ed. 3 are adjudged in Parliament to be for the common profit of the King and of his people and therefore the pretended power being against the profit of the King and of his people can be no part of his prerogative The eighth generall reason The eighth generall reason is drawne a tuto for it is safe for the King to expresse the Cause of the Commitment and dangerous for him to omit it for if any be committed without expressing of the Cause though hee escape albeit the truth be it were for treason or felony yet the escape is neither felony nor treason but if the cause be expressed to be for suspition of treason or felony then if he escape albeit he be innocent it is treaon or felony The last generall reason The last generall reason is drawne from authorities 16. H. 6. Means de fait 182. by the whole Court the King in his presence cannot command one to be arrested but an action of false imprisonment lies against him that arresteth 22. H. 7. 4. Newton 1 H. 7. 4. The opinion of Markham chiefe Justice to Ed. 4. And the reason because the party hath no remedy Fortescue cap. 8. Proprio â—re nullus regum usus est c. to commit any man 4. El. Plo. Com. 236. The Common Law hath so admeasured the Kings Prerogative as he cannot prejudice any man in his inheritance and the greatest inheritance a man hath is the liberty of his person for all others are accessary to it Cicere Major haeredidas venit unicuique nostrum a legibus quam a parentibus 25. Ed. 1. cap. 2. All judgements given against Magna Charta are void Vpon conference with the Lords these objections were made by the Kings Attorney The first objection 1 That the resolutions of the House of Commons were incompatible with a Monarch that must governe by rule of State Rns Whereunto it was answered Quod nihil tam propr ' est imperii quam legibus vivere And againe Attribuat Rex legi quod lex attribuat ei vizt dominationem imperium quia sine lege non potest esse Rex It can be no prejudice to the King by reason of matter of State for if it be for suspition of treason misprision of treason or felony it may be by generall words expressed vizt pro suspitione proditionis c. If it be for any contempt or any other thing the particular cause must be shewed The second objection 2 To blinde those that are
being proposed to Master Keeling it was confirmed by him that by the Entrie it appeared by their course that the remaunding of him was the selfe-same day he was brought which as it was said by the Gent. of the house of Commons might be upon the rising of the Court or upon advisement or the like and this answer was given to this President of the Brewers 12. Iac. Saltonstalls case cite devant fo 49. 65 Obiections hors de ceo To the last of these eight which Master Attorney objected is Saltonstalls Case 12. Jac. he was committed per mandatum à Dom. de privato Consilio and being returned by the Warden of the Fleet to be so Remittitur prisonae pred and in 13. Iac. in the same Case there is remittitur generally in the Roll and these two make but one Case and are one President Rns al dits obiections To this the Gent. of the house of Commons answered that it is true the Rolles have such entries of remittitur in them generally But that proves nothing upon the reason before used by them in Caesars Case But also Saltonstall was committed for another cause besides per mandatum Dom. Regis for a contempt against an Order in the Chancery and that was in the returne also And besides the Court as it appeares in the Record gave severall dayes to the Warden of the Fleet to amend his returne which they would not have done if they had conceived it sufficient for that which is sufficient needs not amendment To this Master Attorney replied that they gave him day to amend his returne in respect of that part of it which concerns the Order in Chancery and not in respect of that which was per mandatum Dom. Regis But the Gent. of the House of Commons answered that that appeared not any where nor indeed is it likely at all nor can be reasonably so understood because if the other returne per mandatum Dom. Regis had beene sufficient by it selfe then doubtlesse they would have remanded him upon that alone for then they needed not at all to have stood upon the other part of the returne in this Case So that out of the Record it selfe it appeares fully that the Court conceived the returne to be insufficient So the Gent. of the house of Commons concluded that they had a great number of Presidents besides divers Acts of Parliament and reasons of Common law agreeable to their resolution and that there was not one President at all that made against them but indeed that almost all that were brought as well against them as for them if rightly understood made fully for the maintenance of their conclusion and that there was not one Example or President of a Remittitur in any kind upon the point before that of Caesars Case which is before cleered with the rest and is but of late time and of no moment against the resolution of the House of Commons And thus for so much as concerned the presidents of Record the first day of the Conference desired by the Lords ended The next day they desired another Conference with the House of Commons at which it pleased the Committee of both Houses to heare Master Attorney againe make what Objections he could against other parts of the Argument formerly delivered from the House of Commons he objected against the Acts of Parliament and against the reasons of the Law and his objections to those parts were answered as it appeares by the Answers by order given into the House of Commons by the Gent. that made them He objected also upon the second day against the second kind of Presidents which are resolutions of Judges in former times and not of Record and brought also some other testimonies of the opinions of Judges in former times touching this point Resolution de touts les Iudges 34. El. Objections hors de ceo per l' Attorney First for that Resolution of all the Judges of England in 34. El. mentioned and read in the Arguments read at the first Conference he said That it was directly against the resolution of the House of Commons and observed the words of it in one place to be that persons so committed by the King or by the Counsell may not be delivered by any of the Courts c. And in another that if the cause were expressed either in generall or in specialtie it was sufficient and he said that the expressing of a Cause in generaltie was to shew the King and the Counsels cōmand and to this purpose he read the whole words of that resolution of the Judges Then he objected also that in a report of one Roswels Case in the Kings Bench in 13 Jac. he found that the opinion of the Judges of that Court Sir Edward Cooke being then chiefe Justice and one of them was that a prisoner being committed per mandatum Dom. Regis or privati Consilii without cause shewed and so returned could not be bayled because it might be matter of State or Arc anum nuperii for which he stood committed And this also he added an opinion he found in a Journall in the House of Commons of 18. Iac. wherein Sir Edward Cooke speaking to a bill preferred for the explanation of Magna Charta touching imprisonment said in the same House that one so committed could not be inlarged by the Law because it might be matter of State for which he was committed and amongst these objections as his objections of the other nature also he spake of the confidence that was shewed in the behalfe of the House of Commons and he said it was not confidence on either part could adde any thing to the determination of the question but if he would that he had as much reason of Confidence for the other side against the resolution of the House of Commons grounding himselfe upon the force of his objections which as he conceived had so weakned the Arguments of the House of Commons Rns al dits objections To this a reply was made and first it was said to the Lords on the behalfe of the House of Commons that notwithstanding any thing yet objected they were upon cleare reason still confident of the truth of their first resolution grounded upon so just examination and deliberation taken by them And it was observed to the Lords also that their confidence herein was of another nature and of greater waight then any confidence that could be expressed by M. Attorney or whomsoever else being of his Majesties Counsell learned To which purpose the Lords were desired to take into their present memories the difference between the present qualities of the Gent. that spake in the behalf of the House of Commons of the Kings learned Counsel in their speaking there howsoever accidently they were both men of the same profession For the Kings Counsell spake as Counsell perpetually retained by Fee and if they made glosses or advantagious interpretations whatsoever for their own part they did but what
the resolution of all the Iudges in the time of Queene Elizabeth It was in the 34 of her raigne when divers persons had beene committed by absolute command and delivered by the Iustices of the one Bench or the other whereupon it was desired that the Iudges would declare in what cases persons committed by such command were to be inlarged hath beene variously cited and variously apprehended The House of Commons therefore desiring with all care to informe themselves as fully of the truth of it as possibly they might got into their hands from a member of their House a Book of selected cases collected by a reverend and learned chiefe Iustice of the common place that was one of them that gave the resolution which is entred at large in that booke I meane the Lord chiefe Iustice Anderson it is written in the booke with his own hand as the rest of the book is and howsoever it hath beene cited and was cited in that great judgement upon the habeas corpus in the Kings Bench as if it had been that upon such commitments the Iudges might not bayle the prisoners yet it is most plaine that in the resolution itselfe no such thing is contained but rather expressed the contrary I shall better represent it to your Lordships by reading it then by opening it Then it was read here If this resolution doth resolve any thing it doth indeed upon the Iurie resolve fully the contrary to that which hath bin pretended and enough for the maintenance of the ancient and sundamentall point of liberty of the person to be regained by habeas corpus when any is imprisoned And I the rather thought it fit now to read it to your Lordships that it might be at large heard because in the great judgement in the Kings Bench though it were cited at the barre as against this point of personall liberty as also at the Bench yet though every thing else of Record that was used were at large read openly this was not read either at Barre or Bench for indeed if it had every hearer would easily have knowne the force of it to have been indeed contrary to the judgement My Lords having thus gone through the Charge committed to me by the House of Commons and having thus mentioned to your Lordships and opened the many Presidents of Records and that draught of the judgement in this like case as also this resolution I shall now as I had leave and direction given me lest your Lordships should be put to much trouble and expence of time in finding or getting Copies at large of those things which I have cited offer also to your Lordships authentique Copies of them all and so leave them and whatsoever else I have said to your Lordships further consideration Mr. Seldens Presidents The true Copie of the Presidents of Record in one of the Arguments made at the first conference with the Lords touching the libertie of the person of every Free-man Inter Record Dom. Regis Caroli in Thesauro Recept Scaccarij sui sub custodi Dom. Thesaurar Camerar ibidem Remane◠vizt Placita coram Domino Rege apud Westmonasteriū de Ter ' Pasche Anno Regis Edwardi 3. post conquest Angliae 18. inter alia sic continetur ut sequitur Rot. 33. Adhuc de termino Pasche London 18. Ed. 3. Bildestons Case cite devant fo 33. DOminus Rex mandavit delicto fideli suo Roberto de Dalton Constabullar ' Turris suae London vel ejus locum tenent ' bre suum in haec verba Edvardus Dei gracia Rex Angliae Franciae Dominus Hiberniae delicto fideli suo Roberto de Dalton Constabular ' Turris suae London vel ejus locum teneum salutem maudamus quod Johannem Bildeston capellan ' quem vic nostr London ad mandatum nostrum apud pred Turrim vobis liberavit ab eisdem recipiatis in prisona nostra Turris London pred Salvo Custodiar fac ' quousque super hoc duxerimus emandand Teste meipso apud Turrim nostram London 30. die Marcij Anno Regni nostri Angliae 16 Regni vero nostri Francie 30. Et modo sclt in Crast Assen Dom. anno Rege nuns 8. coram Domino Rege apud Westminst venit Iohannes de Wynwicke locum teneus pred Constabular adduxit coram Iusticiar ' hic in Cur. pred Iohannem de Bildeston quem al 's a prefat Vicecomit virtute brevis pred recepit c. Et dicit quod ipse a Dommo Rege huit mandat ducend liber and corpus ipsius Iohannis de Bildeston prefat Iusticiar hic c. Et quesitum est de pred Iohannem de Wynwicke si quam aliam detentionem prefat Iohannis de Bildeston habeat Camm Qui dicit quod non nisi bre pred tantum Et quia videtur cur bre pred sufficien non esse coram pred Johannis de Bildeston prison Marr ' Regis hic retinen c. Idem de Iohannes dimittitur per manus Willielm de Wakefield rectoris Eccill de willingham Iohannis de Wynwicke in Com. Kanc. Johanis de Norton in Com. Norff. Nicolai de Blandefford in Com. Middl. Rogeri de Bromley in Com. Stafford qui eum manuceperunt Habend in eum Coram Domino Rege apud in Octabis Sancti Trin. ubicunque c. vizt Corpus pro corpore c. Ad quos Octabis Sancte Trin. Coram Domino Rege apud Westm ven pred per manus pred Et super hoc mandavit Iusticiar suis hic quoddam bre suum Claus in hec verba Edwardus Dei gracia Rex Anglia Franciae dominus Hiberniae delictis fid li suis Willielmo Scot socijs suis Justiciar ' ad placita coram nobis tenend assignat saltem cum nuper mandaverimus delicto fideli nostro Roberto de Dalton Constabular ' Turris nostre London vel ejus locum tenen quod Iohannem de Bildeston Capellaum Capt. decent in prisona turris pred hoc preceptum nostrum pro suspitione contra factionis magni Sigilli nostri cum Attachiat aelias Causis capcon detentionem pred cangen salvo secur ' duci fac ' Coram nobis in Cron Ascen Dom ubicunque tunc fuissemus in Anglia persone Marrescall nostre coram nobis liberand in eadem quousque per quendam informatorem essemus plenius informat Custod tuta inde informatione pred ulterius pred' super hoc fieri facerimus quod fore viderimus faciend secundum legem consuetudinem Regni nostri Anglie nos in casu quod dictus Informator non verum Coram nobis ad informand nos plenius super premiss volentes eidem Jahannem ea de causa Iusticiar ' deferferr ' in hac parte vobis mandamus quod si pred Informator ' in Quenden Sanct. Trin. prox futur vel circa non venit non super hoc plenius informat tunc advent ejusdem informatoris minime
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
c. had not followed and that these words were void according whereunto here also per mandat Dom. Regis nunciat per Robertū Pecke had bin wholly omitted and void likewise in truth in that late Case this case of Parker was cited both at the Bar and at the Bench and at the Bench it was interpreted by the Judges no otherwise then if it had beene only per mandatum Dom. Regis in this place of it But the objection there was made of another kind as was delivered in the first Argument made out of Presidents in behalfe of the house of Commons Then for the second objection touching the course of enumeration of the causes in the returne it was said that however in some acts of Parliament and else-where in the solemne expression used in the Law things of greater nature precede and the lesse follow Yet in this case the contrary was most plaine for in the return there appeares that there were three causes of deteyning the prisoner surety of the peace suspition of felonie and the Kings command and suretie of the peace is first mentioned which is plainly lesse then felonie therefore it is as plaine that if any force of Argument be here to be taken from this enumeration the contrary to that which Master Attorney inferred is to be concluded that is that as felonie is a greater cause then Suretie of the Peace so the matter whereupon the Kings command was grounded was greater then the felonie But in truth this kind of Argument holds neither way here And whatsoever the cause were why the King committed him it was impossible for the Court to know it And might also have been of very high moment in matter of State and yet of farre lesse nature then felonie all which shewes that this President hath its full force also according as it was first used in Argument by the house of Commons 35. H. 8. Bincks case cite ante 36. 56 objections hors de ceo To the third of these which is Bincks Case in 35. H. 8. Rot. 35. the Objection was that there was cause expressed pro suspitione feloniae and though pro alijs causis illos moventibus were added in the returne yet because in the course of enumeration the generall name of alia comming after particulars includes things of lesse nature then the particular doth therefore in the Case suspition of felonie being the first the other causes generally mentioned must be intended of lesse nature for which the prisoner was bay leable for the greater which was suspition of felonie Rns al dit obiection Hereunto it was replied that the Argument of enumeration on in these cases is of no moment and is next before shewed and that although it were of any moment yet the aliae causae though lesse then felonie might be of very great consequence in matter of State which is pretended usually upon generall returnes of command without cause shewed And it is most plaine that the Court could not possibly know the reasons why the prisoner here was committed and yet they bay led him without looking further after any unknowne thing under that tytle of matter of State which might as well have been in this Case as in any other whatsoever 2. 3. P. M. Overtons case Et 4. et 5. P. M. Newports case cite ante fo 36. et 37. Et les objections la rnde le Record de ceux vide ante fo 37. et 38. To the fourth of these which is Overtons Case en Pas 2. 3. P. et Mar. rot 58. and to the fifth which is Newports Case Pas 4. 5. P. Mar. rot 45. onely these observations were said over againe by Master Attorney which were moved in the Argument made out of the Presidents in the behalfe of the house of Commons at the first conference and in the same Argument were fully and cleerely satisfied as they were now againe in like manner 9. El. Lawrences case et eodem Anno Constables case cite devant fo 38. et 56. To the sixth which is Lawrences Case in 9. El. rot 35. and to the seventh which is Constables Case Pas 9. El. Rot. 68. the same objections were likewise said over againe by Master Attorney that are moved and clearly and fully answered in the Argument made at the last Conference out of Presidents in the behalfe of the house of Commons The force of the Objection being only that it appeared in the margin of the Roll that the word Pardon was written but it is plaine that the word there hath no reference at all to the reason why they are bayled nor could have reference to the cause why they were committed is utterly unknowne and was not shewed 20. El. Brownings case cite devant fo 38. et 56. To the eighth which is Brownings Case in Pas 20. El. Rot. 72. it was said by Master Attomey that he was bayled by a Letter from the Lords of the Counsell directed to the Judges of the Court but being asked for that Letter or any testimony of it he could produce none at all but said he thought the testimony of it was burnt amongst many other things of the Counsell table at the burning of the Banquetting house 40. El. Harecourts case cite devant fo 39. To the ninth being Harecourts Case Pas 40. El ' Rot. 620. the selfe-same objection was made by him but no warrant was shewed to maintaine his objection 43. El. cite devant fo 39. Catesbies case Object a ceo To the tenth which is Catesbies Case in vacatione Hill 43. El. he said that it was by direction of a Privie Seale from the Queene and to that purpose he shewed the Privie Seale of 43. El. which is at Charge among the transcript of the Records concerning bayles taken in Cases when the King or the Lords of the Counsell assented Rns a ceo But it was replied that the Privie Scale was made only for some particular Gentleman mentioned in it and none other as indeed appeares in it And then he said that it was likely that Catesby here had a privie Seale in this behalfe because those other had so which was all the force of his objection 12. Iac. Backwiths case cite devant fo 39. 58. Objection a ceo To the 11 which is Beckwiths Case in Hill 12. Iac. Rot. 183. He said the Lords of the Counsell sent a letter to the Court of Kings Bench to bayle him and indeed hee produced a letter which could not by any meanes be found when the Arguments were made at the first conference And this Letter and a Copie of an obscure report made by a young Student that was brought to another purpose as is hereafter shewed were the onely things written of any kinde that M. Attorney produced besides the particular shewed by the House of Commons at the first conference Rns al objections To this it was replied that the letter was of no moment being onely a direction to the chiefe
Justice and no matter of record nor any way concernign the rest of the Judges And besides the prisoner was bayleable by the Law or not bayleable if bayleable by the Law then was he to be bayled without any such Letter if not bayleable by the Law then plainly the Judges could not have bayled him upon the Letter without breach of their oathes which is that they are to doe Justice according to the Law without having respect to any command whatsoever so that the Letter in this Case or the like in any other case is for point of Law to no purpose nor hath any weight at all by way of objection against what the record and judgement of the Court shewes us 14 Ia. Sir Tho. Mounsons case devant fo 40. 58. The twelfth and last of these which is Sir Tho. Mounsons Case in 14. Jac. Rot. 147. the same objection onely was said over by him which was moved and clearely answered in the Argument at the first conference and that one ground which is infallible that the judgement upon a returne is to be made onely out of what appeares in the body of the returne it selfe was againe insisted upon in this case as it was also in most of the rest And indeed that alone which is more cleare Law fully satisfies almost all kinde of objections that have beene made to any of these Presidents which thus righty understood are many ample testimonies of the judgement of the Court of Kings Bench touching this great point in the severall ages raignes of the severall Princes under which they fall After his objections to these twelve and the replies and satisfaction given to these objections hee came next to those wherein the assent of the King or privie Counsell appeares to have beene upon the inlargement but hee made not to any of these any other kind of objection whatsoever then such as are moved and clearely answered as they were now againe in the Argument made at the first conference And for as much as it concernes Letters of Assent or direction the same was here said againe by way of reply to him as is before said touching the Letter in Beckworths Case hoc supra After these were disputed hee came to urge the eight Presidents which seemed to make for the other side against the resolution of the house of Cōmons which eight were used and copies of them also given unto the Lords at the first cōference Of these eight the first foure were urged by him as being of one kinde the difference of them being onely said the same onely in the names of prisons and of persons they were but the selfe same Vide touts ceux cite devant fo 43 44. 62. 63 objections hors de eux The force of these foure being objected thus that Richard Everard for the purpose in the first of them which is 5. H. 7. Rot. 18. Roger Cherry in the second of them which is 8. H. 7. Rot. 12. Christopher Burton in the third which is 9 H. 7. Rot. 14. and George Vrmsewick in the fourth of them which is 19 ◠7. Rot. 13. were returned into the Kings Bench by severall Writs of Habeas corpus to have been committed and detained in the prisons whence they came per mandatum Dom. Regis and that upon the returne they were committed to the Marshalsea of the Kings Bench and that howsoever it had beene objected against those Presidents that this kind of commitment was by the course of that Court alwayes done before the Bayling of the prisoner yet that it did not appeare that they were bayled Rns al objections hors des dits presidents The reply to these objections was that the constant course of the Court of Kings Bench was whosoever came in upon a hab corp or otherwise upon any Writ into that Court cannot be bayled until he be first committed to the Mar. of that Court that thence it was that all those 4 were committed to the Marshal as appears by the entry Marr ' c. which is the usual entry in such a case and that the Clerks of that Court acknowledge this course entry to be most constantiso that all the inference that can be made out of these 4 is but that 4 prisoners being brought from foure severall prisons by hab corp into the Kings Bench and returned to stand committed per mandatum Dom. Regis were so farre from being to be remanded by the Law that in all these foure cases they were first taken from their severall prisons wherein they had beene detained by such a generall command which could not have beene if they had not beene adjudged in every of the Cases to have beene bayleable by the Court and that this Commitment of them to the Marshall of the Kings Bench was the first step towards the bayling of them as in all other cases but that it appeares not that either they ever demanded to be bayled or that they were able to finde sufficient Bayle And if they did not the one or could not doe the other it may follow indeed that they were not bayled but the commitment to the Kings Bench being the first step to bayling and by constant course it is shewed most plainly that they were bayleable by the Law which is the onely thing in question so that although the foure Presidents were ranked among them that may seeme to make against the resolution of the House of Commons which was done both because they have this small colour in them for the other side to any man that is not acquainted with the nature and reasons of the Entries and courses of the Court of Kings Bench and also because all or some of them had beene used in the late great case in the Kings Bench as Presidents that made against this liberty claimed by the Subject yet in truth all soure of them doe fully prove their resolution that is they plainly shew that the Court of Kings Bench in every of them resolved that the prisoners so committed were bayleable otherwise they had beene remanded and not committed to the Marshall of the Kings Bench. And this was the answer to the objection made by M. Attorney upon these foure Presidents being all of them in the time of H. 7. 7 H. 8. Pages cas◠cite devant fo 43. 63. To the fifth of these being Ed Pages Case in 7. H. 8. Rot. 23. M. Attorney objected thus he said that Edward Page was committed to the Marshalsea of the Houshold per mandatum Dom. Regis ibid. salvo custodiend c. Qui committitur Marr. Hospitii Dom. Regis c. by which it appeares as he said that the Court remanded him to the prison of the Marshalsea of the houshold and hee said whereas it had beene objected at the first conference that here was some mistaking in the Entry he said he conceived indeed there was a mistaking but the mistaking was that the Clerk had entred committitur for remittitur and