the first was Thomas Brown he was committed to the Marshalseys Per mandatum domini Regis aliis certis de causis and afterwards the Records say Dominus Rex quoad Chase relaxavit mandatum suum and he was bailed and the rest lay by it My Lords I will conclude I could be infinite in this case in presidents but enough is enough your Lordship knoweth the weight of presidents it is not enough to shew this was done but also to shew the reason why it was done I wil trouble your Lordship no longer but if any man shall doubt whether that or any part thereof be truly recited which hath been said touching the Records or Statutes I can say no more but that the statutes have been read and the Records are ready sorted out to be seen by your Lordship I shall conclude that I shall say in this case to answer the fear rather then the just ground of them that say that this may be a cause of great danger with the words of Bracton who spake not to flatter the present age lib. 1. chap. 8. in the end speaking of a writ for wrong done by the King to the Subject touching land he saith these words si judicium à Rege testatur cum breve non currat contra ipsum locus erat supplicationi quod factum suum corrigat emendet quod quidem si non fecerit satis sufficit ei ad poenam quod dominum expectet ultorem nemo quidem de factis suis praesumat disputare multo fortius contra factum suum venire My Lords I englished it not for I apply it not any man may make use of it as he pleaseth and so I conclude both for the point of Exception and matter of the Return which I referre to your Lordships judgement whether all in the Return but these words Per speciale mandatum domini Regis be not superfluous And for the matter whether these Gentlemen be bailable or not bailable I have shewed your Lordship that by the practise of all ages they are not bailable but have beene remaunded back And therefore I pray your Lordship that these Gentlemen may be remitted and left to goe the right way for their delivery which is by Petition to the King whether it be a Petition of right or of grace I know not it must be I am sure to the King from whom I do personally understand that these Gentlemen did never yet present any Petition to him that came to his knowledge Hide Chief Justice Master Atturney thus much we must say to you you have taken a great deal of pains you having had so short a time to consider of this case it is a case of very grear weight and expectation and we doe not intend that you shall expect long for our resolution for that these Gentlemen are in prison and desire no doubt to know where they must trust I hope we shall resolve according to the reason of former times and according to our consciences but this I must tell you as I did those that argued you must bring in your presidents for though wee have seen some of them yet some of them we have not seen therefore we desire that your servants or your selves doe attend and bring unto us after dinner those presidents you have mentioned on the Kings part for we intend to meet this afternoon and you shall have our opinions to morrow and I must tell you on the other side that this cause being of such weight Councell should be wary how they speak any thing to inveagle the Court. Touching such presidents as you urged in some of them we know there is something urged which makes not for you so you have omitted some materiall things to be shewn I speake it to this purpose not to prejudice the cause or to deliver my opinion which becomes me not but to shew that Counsellors should be carefull and this I dare say there is matter in some of the presidents themselves that leads to another case if they were intirely cited The Term grows away you shall not be long in expectation we will meet this afternoon and give you our opinions to morrow morning Master Noye We desire that Master Atturney may bring the presidents of 34 Elizabeth with him Master Atturney I will shew you any thing but my Lord I shal be bold to claim the priviledge of my place as the Kings Councell when the Kings Atturney hath spoken there ought to be no Arguments after that but if you aske to see any thing you shall have it Hide Chief Justice It is that we aim at the truth and right may appear and not satisfie the one or the other part but it is not desired to make use of it by way of reply but for satisfaction onely Serjeant Bramstone My Lord for the presidents I cited I did think they should have been brought and read in the Court that your Lordship might see them Hide Chiefe Iustice You shall need no Apology the Records and Presidents shall be brought to the Court and read openly for the Court will not wrong you and you shall see the difference between them and your relation of them nor you must not wrong us with your written verities On thursday the twenty eight of November Michaelis 3. Caroli Regis Hide Chief Justice Justice Doderidge Justice Jones and Justice Whitlock on the Bench Sir John Corbet Sir Walter Earle Sir John Henningham and Sir Edmund Hampden at the Bar. Hide Chief Iustice I am sure you here expect the resolution of the whole Court as accordingly yesterday we told you you should have This is a case of very great weight and great expectation and it had been fit we should have used more solemn arguments of it then now for the shortnesse of the time we can doe for you have been long in prison and it is fit you should know whereunto you should trust I am sure you expect Justice from hence and God forbid we should sit here but to doe Justice to all men according to our best skill and knowledge for it is our oaths and duties so to doe and I am sure there is nothing else expected of us We are sworn to maintain all the Prerogatives of the King that is one branch of our oath and we are likewise sworn to administer Justice equally to all people We cannot I tell you deliver in solemn arguments and give the judgements of every one of us touching this case as the weight thereof requireth but we have met together and we have duly and seriously considered of it and of all that which hath been spoken of on either side and we are grown to a resolution and my brothers have injoined me to delâ—ver to you the resolution of the whole Court and therefore though it bee delivered by my mouth it is the resolution of us all I hope I shall not mistake any thing of their intention in my delivery but if I doe they sit
Domini Regis mihi nunciatum per Robertum Pecke now our case is by the Nunciation of many but in Law majus minus non variant in spetione the certification of one and of many is of the same effect although in morall understanding there may bee a difference Trin. 2 Ed. 3. Rot. 46. in this Court in 21 Ed. 3. in the printed Book there is a peece of it The Abbot of Burey brings a prohibition out of this Court the Bishop of Norwich pleadeth in Bar of that Quod mihi testificatum quod continetur in Archivis that he is excommunicated there were two exceptions taken to this case in this president and they are both in one case the first was that no case appeareth why he was excommunicated there may be causes why he should be excommunicated and then he should be barred and there may be causes why the excommunication should not barre him for it may be the excommunication was for bringing the action which was the Kings writ and therefore because there was no cause of the excommunication returned it was ruled that it was not good The other reason is that upon the Roll which is mihi testificatum Now every man when he will make a Certificate to the Court Proprium factum suum non alterius significare debet he must inform the Court of the immediate act done and not that such things are told him or that such things are signified unto him but that was not done in this case and therefore it was held insufficient and so in this case of ours I conceive the return is insufficient in the form there is another cause my Lord for which I conceive this return is not good But first I will be bold to inform your Lordship touching the Statute of Magna Charta 29. Nullus liber homo capiatur vel imprisonetur c. nec super eum mittimus nisi per legale judicium parium suorum vel per legem terrae That in this Statute these words in Carcerem are omitted out of the printed Books for it should be nec eum in Carcerem mittimus For these words per legem terrae what Lex terrae should be I will not take upon me to expound otherwise then I finde them to be expounded by Acts of Parliament and this is that they are understood to be the processe of the Law sometimes by writ sometimes by attachment of the person but whether speciale mandatum Domini Regis be intended by that or no I leave it to your Lordships exposition upon two petitions of the Commons and answer of the King in 36 Ed. 3. n o 9. and n o 20. In the first of them the Commons complain that the great Charter the Charter of the Forest and other Statutes were broken and they desire that for the good of himselfe and of his people they might be kept and put in execution and that they might not be infringed by making an arrest by speciall command or otherwise and the answer was that the assent of the Lords established and ordained that the said Charter and other Statutes should be put in execution according to the petition and that is without any disturbance by arrest by speciall command or otherwise for it was granted as it was petitioned In the same year for they were very carefull of this matter and it was necessary it should be so for it was then an usuall thing to take men by writs quibusdam de causis and many of these words caused many Acts of Parliament and it may be some of these writs may be shewn and I say in the same year they complained that men were imprisoned by speciall command and without indictment or other legall course of Law and they desired that thing may not be done upon men by speciall command against the great Charter The King makes answer that he is well pleased therewith that was the first answer and for the future he hath added farther if any man be grieved let him complain and right shall be done unto him This my Lord is an explanation of the great Charter as also the Statute of 37 Ed. 3. ch 18. is a Commentary upon it that men should not be committed upon suggestion made to the King without due proofs of Law against them and so it is enacted twice in one year Wee finde more printed Bookes as in Henry the sixth Mius de fiacts Fitz. 182. which is a strong case under favour in an action of Trespasse for cutting down trees the defendant saith that the place where the trees are cut is parcell of the Manor of B whereof the King is seised in fee and that the King did command him to cut them and the opinion of the Court was that this was no good plea without shewing the specialty of the command and they said if the King command me to arrest a man and I arrest him he shall have an action of false imprisonment against me although it were done in the Kings presence In 1 Ioh. cap. 7. fol. 46. it is in print and there we leave it Hussey Chief Justice saith that Sir Iohn Markham told King Edward the fourth that he could not arrest a man upon suspition of felony or treason as any of his Subjects might because if he should wrong a man by such arrest the parties could have no remedy against him if any man shall stand upon it here is a signification of the Kings pleasure not to have the cause of the commitment examined he hath here another signification of his pleasure by writ whereby the party is brought hither ad subjiciendum recipiendum that he hath made your Lordship Judge of that that should be objected against this Gentleman and either to punish him or to deliver him and if here be no cause shewn it is to be intended that the party is to be delivered and that it is the Kings pleasure it should be so and the writ is a sufficient warrant for the doing of it there being no cause shewn of the imprisonment and now my Lord I will speak a word to the writ of De homine replegiando and no other writ for that was the common writ and the four causes expressed in that Statute to wit the death of a man the command of the King or his Justices or Forest were excepted in that writ before that Statute made as appears Bracton 133. so that the writ was at the Common Law before that Statute And it apppears by our Books that if a man be brought hither by an Habeas corpus though he were imprisoned De morte hominis as in the 21 of Edward the fourth 7. Winckfield was bailed here this Court bailed him for he was brought hither ad subjiciendum recipiendum and not to he in prison God knows how long and if the Statute should be expounded otherwise there were no bailing men outlawed or breakers of prisons for they are not within this Statute and yet this
Lord I say that if it had all been left out and he had onely said Detentus fuit per speciale mandatum domini Regis it had been sufficient but when he doth more it is superfluous and not necessary for it appeared before by whom he was committed and when he returns the Warrant of the Lords of the Councell it is not their words that commit him but they being the Representative Body of the King they doe expresse what the Kings command is but they signifie nothing of their own and therefore I desire your Lordship to deliver your opinion in that point of the Return whether it be positive or no. This cause as it greatly concerns the Subjects so it much concerns the King too I am sorry there should be any occasion to bring these things in question but since it is now here I hope I shall give satisfaction to your Lordship and to the parties too and I desire that I may have Munday for it Hide Chief Justice I think it is not best for us to declare our opinions by peece-meals but upon all the case together and as well as you are a stranger to the Return so are we and there be many presidents and Acts of Parliament not printed which we must see Doderidge This is the greatest cause that ever I know in this Court our Judgements that we give between party and party between the King and the meanest Subject ought to be maturely advised on for so are the entries of our judgements Quod matura deliberatione habita It was judged c. And we must see the presidents and Acts of Parliament that we hear mentioned Justice Jones Master Atturney if it be so that the Law of Magna Charta and other Statutes be now in force and the gentlemen be not delivered by this Court how shall they be delivered apply your self to shew us any other way to deliver them Doderidge Yea or else they shall have a perpetuall imprisonment Per Curiam Munday was appointed for the Atturneys Argument and in the interim the Councell for the gentlemen were by order appointed for to attend the Judges with all the presidents and unprinted Statutes which they mentioned and that they should let the Atturney see them also And the gentlemen being asked if they desired to come again answered they did and a Rule was entred for it On Munday the 27 of Tertio Michaelis 3º Caroli Regis in Banco Regis Sir John Corbet Sir Walter Earle Sir Edmund Hampden and Sir John Henningham Knights were brought to the Barre Heath Atturney Generall MAY it please your Lordship these gentlemen Sir Walter Earle Sir John Corbet Sir Edmund Hampden and Sir John Henningham upon their motion to this Court to have their Habeas Corpus and that themselves and the cause of their detaining them in their severall Prisons might be brought before your Lordship had it granted to them My Lord at the first motion of it the knowledge thereof of comming and that they had such a desire his Majesty was very willing to grant unto them as to all his Subjects this common case of Justice and though it be a case which concerns himself in a high degree yet he hath been so gracious and so just as not to refuse to leave the examination and determination thereof to the Laws of this Kingdome My Lord it is very true that this is a very great Cause and hath raised a great expectation and for the manner of it more then was necessary but my Lord I am afraid these gentlemen whom it concerns have rather advised their Councell then their Councell them but I shall take the case as now I finde it and as the gentlemens Councell on the other side have led me the way to it My Lord the exceptions that have been taken by the Councell on the other side to the Return made by the Warden of the Fleet and the rest of the Guardians of severall Prisons have been two for renewing of your Lordships memory we will read one of the Returns they are all alike Then the Return was read for Sir John Henningham by Master Keeling Heath Atturney May it please your Lordship against this Return the Councell of the Gentlemen have taken some exceptions and have divided their objections into two main points The one the form the other the matter To the form they have objected four severall things First that the Return is not positive but referred to the signification made by another as the Lords of the Councell Secondly that the Keepers of the Prisons have not returned the cause of the commitment but the cause of the cause which is not good Thirdly that the Return is imperfect for that it shews onely the cause of the detaining in Prison and not the cause of the first commitment And lastly that the Return is contradictory in it self for that in the first part thereof there is a certification that the detaining of these gentlemen in prison is Per speciale mandatum domini Regis and when the Warrant of the Lords of the Councell is shewed it appears that the commitment is by the command of the King signified by the Lords of the Councell and by your Lordships favour I will give a severall answer to every of these severall objections And for the first that the Return is not positive and affirmative but depends upon and hath relation to some other and therefore it is not good I doe agree that the ground is true that if the Return be not positive it is not good we differ onely in the Minor That the Return is not positive and affirmative for I agree that these Book cases that have been put are good Law as 27 Ass pl. 65. that if the Sheriffe return that he hath sent to the Bailiffe of the hundred and he gives him that answer that is no good Return for the Sheriffs ought to make the Return as of his own act without naming of the Bailiffe of the Hundred in his Return for if he return Quod mandavi Ballivo itineranti qui habet Retorn omnium Brevium executionem eorund per Cartam domini Regis qui mihi dedit nullum Responsum this is not good if he were not Bailiffe of a Franchise or Signiory for so is 21 H. 7. fol. 4. There hath been cited to maintain these objections 20 Ed. 3. the Record I have perused and there I finde that the Bishop said that it is found in Archivis in the Record c. that he was excommunicated but it was found to be in Archivis c. and that is no positive return that it is so I will oppugne what hath been said by the Councell on the other side it must be granted that if the return here be not positive it is imperfect and in 5 H. 7. 28. it is said that an imperfect return is no return at all it is all one but if the return was so that was not much materiall for then it were
commandement by Letters from the King That whereas the Earl of Warwick had commanded divers persons to the custody of the said Sheriffe the King sent a Letter to the said Sheriffe commanding that those who were committed to his custody by the Earl of Warwick he should shew no grace to them that is they should not be bailed The Sheriffe notwithstanding this command lets some of those prisoners to bail whereupon he was complained of in Parliament that he had done against the Kings commandement and he was condemned for it This was a Parliament I wonder this should be done in Parliament and that it was not said there That this commitment being done by the Kings commandment was not good no he was condemned in Parliament for it was one that did break the Statute of Westm primo My Lord the use that I make of this Record is this It recites that the Earl of Warwick committed divers it might be that he did commit them by direction from the King but the Record mentioneth not so much but it shews that the King by Letters commanded the Sheriffe that he should shew those persons no grace and yet he did he was examined upon this and by Parliament committed The next matter I will offer to your Lordships judgement for the true exposition of the Law in this case is the Book we call the Register an authority respected it is the foundation of all our Writs at the Common Law I bring not the Book Register fol. 77 c. In this Book there is one Writ saith thus Rex c. Quod replegiar ' fac ' A. nisi fuerit per speciale mandatum domini Regis Iustice Doderidge In what Writ is that De homine replegiando Atturney Generall Yea in the Writ De homine replegiando and there is another Writ directed to the Constable of Dover in the very same words by which it appears that they that are imprisoned by the Kings command non sunt replegiabiles F.N.B. 66. f. Master Fitzherbert a grave Judge and is in authority with us perusing these Writs expressed it in these words plainly There are some cases wherein a man cannot have this Writ although he be taken and detained in Prison as if he be taken by the death of a man or if he be taken by the commandement of the Kings Justices and mentions not chief Justice which I beleeve is to be intended not of the chief of the Court of Judicature but of the chief Justice of England for there was such a one in those days Thus my Lord you see the opinion of Master Fitzherbert in this case The next thing that I will shew your Lordship is the opinion of Master Stamford in his Pleas of the Crown Fol. 72. where he sets down the Statute of Westminster primo and then he addes That by this appears in four cases at the Common Law a man is not replevisable In those that were taken for the death of a man or by the commandment of the King or of his Justices or of the Forest And there he saith That the commandment of the King is to be intended either the commandment of his mouth or of his Councell which is incorporated to him and speak with the mouth of the King My Lord I shall desire no better Commentaries upon a Law then these reverent grave Judges who have put books of Law in Print and such Books as none I beleeve will say their judgements are weak The next thing I shall offer unto your Lordship is this that I cannot shew with so great authority as I have done the rest because I have not the thing it self by me but I will put it to your Lordships memory I presume you may well remember it It is the resolution of all the Judges which was given in the four and thirtieth of Queen Elizabeth it fell out upon an unhappy occasion which was thus The Judges they complain that Sheriffes and other Officers could not execute the processe of the Law as they ought for that the parties on whom such processe shall be executed were sent away by some of the Queens Councell that they could not be found the Judges hereupon petitioned the Lord Chancellor that he would be a suitor to her Majesty that nothing be done hereafter And thereupon the Judges were desired to shew in what cases men that were committed were not bailable whether upon the commitment of the Queen or any other The Judges make answer That if a man shall be committed by the Queen by her command or by the Privy Councell he is not bailable If your Lordship ask me what authority I have for this I can onely say I have it out of the Book of the Lord Anderson written with his own hand My Lord I pray you give me leave to observe the time when this was done It was in a time and we may truly call it a good time in the time of good Queen Elizabeth and yet we see there was then cause of complaint and therefore I would not have men think that we are now grown so bad as the opinion is we are for we see that then in those times there was cause of complaint and it may be more then is now This my Lord was the resolution of all the Judges and Barons of the Exchequer and not by some great one Now I will apply my self to that which hath been enforced by the Councell on the other side which was the reason that the Subject hath interest in this case My Lord I do acknowledge it but I must say that the Soveraign hath great interest in it too And sure I am that the first stone of Soveraignty was no sooner laid but this power was given to the Soveraign If you ask me whether it be unlimited my Lord I say it is not the question now in hand But the Common Law which hath long flourished under the Government of our King and his Progenitors Kings of this Realm have ever had that reverent respect of their Soveraign as that it hath concluded the King can doe no wrong And as it is in the Lord Berklies Case in Plowdens Com. 246. b. it is part of the Kings Prerogative that he can doe no wrong Title Travers 5. In the fourth of Edward the fourth fol. 25. the King cannot be a disseisor and so it is also in the Lord Berklies Case in 32 H. 8. Dier fol. 8. The King cannot usurp upon a Patron for the Common Law hath that reverent respect to him as that it cannot conceive he will doe any injury But the King commits a Subject and expresseth no cause of the commitment what then shall it be thought that there is no cause why he should be committed Nay my Lord the course of all times hath been to say there is no cause expressed and therefore the matter is not ripe and thereupon upon the Courts of Judicature have ever rested satisfied therewith they would not search into it My
signification of the command was given by Master Peck of Cliffords Inne but there the Warrant shews the cause of the commitment was for the peace and suspition of felony and therefore he was bailed The next was in 40 Eliz. Wendons Case but my Lord that commitment was out of the Star-chamber by an ordinary course Then they cited 8 Jac. Thomas Caesars Case he indeed was committed by Speciale mandatum domini Regis and brought his Habeas Corpus but the Roll saith remittitur and is that a Warrant for them to say that he was delivered Then Sir Thomas Vernons Case was cited and my Lord when we looked into the Records we found that he was committed for suspition of Treason and he was tried for it and discharged The next president was Sir Thomas Monsons Case I wonder that they did cite that for he was committed by the Lords of the Councell indeed but the ground of it was the suspition of the death of Sir Thomas Overbury and he was discharged again by the Lords of the Councell Certainly if you had known this you would not have named this as a president for you The next was Reynors Case he my Lord was one of the Gunpowder-Treason and yet there was a Warrant to discharge him too And therefore what these presidents are I shall submit to your Lordship I must confesse when they are cited together they make a great noise but when they are examined severally they prove nothing My Lord there is one more president of these that were cited here before your Lordship and I hope that one shall be as none It was mentioned to be Lawrence Browns Case 30 Eliz. I know not what it is but it is like to be of the same value as the rest Pro certis causis eos moventibus c. And thus my Lord I have gone through those presidents that were alledged here before your Lordship and now I will come to these presidents that were brought to me and not mentioned here The first was John Brownings Case in 21 H. 8. My Lord these presidents came not to me before Saturday last about candle-lighting and yesterday was no time fitting to search out presidents and how could I then search for this The next was William Rogers Case of the same time But the cause is expressed to be for suspition of felony which is a cause within the Jurisdiction of this Court Newports Case was the like in 4 5 Phil. Mar. and so was Thomas Lawrence Case 9 Eliz. and Edw. Harecourts Case 5 Eliz. which was for suspition of felony Richard Beckwith and not Barkwith as was cited for they have mistaken both names and matters was committed Per speciale mandatum domini Regis and the Record saith he was bailed But it was by reason of a letter from the Lords of the Councell The cause of Peter mans commitment in the 4 and 5 of Philip and Mary appears to be for suspition of felony and robbery For Reynors case it is the same with Beckwith and were both for one thing In the eighth of Henry the seventh one Rog Cherry was committed Per mandatum domini Regis and it was for a criminall case and he was afterwards indicted and acquited and delivered And there is another president thereof that saith he was afterwards arraigned condemned and hanged we have the Record of it And now my Lord I will shew some presidents on the other side where men have been committed by the commandement of the King and by the commandement of the Councell and have been delivered again by their directions And of this kinde there be two in the Tower that as they were committed by Warrant so by Warrants again for their bailing they were delivered the offences were against the Forest and for Murther In the fourth of Edward the third M. 4. Edmond de Newport in Essex was indicted for an offence committed by him in the Forest And M. 7. John Fox was likewise indicted for an offence by him done in the Forest and there be two Warrants to bail them M. 20. John Cobb was the like and there was a letter from the King Quod ponatur in Ballium usque ad proximam Assisam These were offences within Westminster primo and there be severall Warrants to bail them The Clark of this Court hath many Records by which it appeareth that many have been committed by the command of the King and of the Queen and of the Councell and brought their Habeas Corpus and the successe was that many of them were committed to the same Prisons and divers were committed to the Marshall of this Court the reason was for that many of them were to appear here their causes being triable here and it would have been a great trouble to send them back so farre to Prison as into the Countries and therefore they were delivered to the Marshall of the Kings Houshold again many had their Trials in this Court and some suffered and some were delivered by speciall command as they were committed by speciall command The number of these of this nature are infinite that have been in our times we have found some forty presidents of men committed out of the Chancery and by the High Commission for contempts and some by the Barons of the Exchequer and some in London that have been brought hither by Habeas corpus Of this I shall observe that in the 11 Iacobi there was a private Constitution in London made between the white Bakers that they might live one by another and the one not to invade the others liberties and for contempt against this Ordinance some were committed to prison as Thomas Heanning and Littlepage they had a Habeas corpus and the cause was shewn to be by reason of the said Constitution and thereupon the prisoners were sent back to London to abide the Order of the Mayor for my Lord this Court hath been ever carefull not to examine the Decrees of the Chancery or Court of Requests but have only looked whether the cause returned be within the jurisdiction of this Court nor have they called in question the by-laws and constitutions of London but they send them back to the court of Justice that committeth them And hath this Court been so carefull of these inferiour Courts to this which is the chief and when the King who is the head of Justice shall commit a man shall not they be as carefull to do the like Justice to them But when the King saith to them the commitment was by my warrant and commandment will you question this and whether this commitment be good or no I hope you will not And now my Lords touching some presidents which have been taken out of their own shewing I shall make it appear that as they have been committed by the King or Councel so they had warrants also to discharge them and they my Lords are two ancient Records the first is 7 H. 7. Rot. 6. the other Rot. 73.
Octabis Michaelis vide the Record I blame not you that are of Councell with these Gentlemen for urging this Record for this Cause is not expressed in your Record but that he was committed by command of the Councell onely but he was committed for suspition of felony with Sir Thomas Smith Vide the Record The next is in 40 Eliz. Edward Harecourts Case and Thomas Wendens Case I bring them together because they are both in one year in the 40 of Eliz. Edward Harecourt you say was committed to the Gatehouse by the Lords of the Councell and the Return was that he was committed by them Certis de causis ipsos moventibus ignotis and he was bailed Here is another in the same time committed to the same prison by the Lords in the Star-chamber it was Thomas Wendens case and he you say was committed by them Certis de causis as the other was and that he was bailed but you shall finde in the margin of the Roll Traditur in ball ' ex assensu Concilii dominae Reginae and that was the relation of the Queens Atturney so that you see how that president fits you The next are two more of the Gatehouse Beckwith and Reyner they you said were committed to the Gate-house brought their Habeas Corpus and the Keeper of the Gatehouse returned that they were committed by vertue of a Warrant from the Archibishop of Canterbury Henry Earl of Northampton Lord Warden of the Cinque Ports and others of the Privy Councell requiring the said Keeper to receive the said Beckwith and Reyner into his charge untill they should have further order from them in that behalf and you say they were bailed Vide the Record in Master Seldens aforesaid Now you shall see the direction to bail him he was bailed by the direction from the Lords of the Councell as appears by their Letter Vide as aforesaid Now we come to Caesars Case in 8 Jacobi you urged that to this purpose you say he was committed to the Marshalsey who upon a Habeas Corpus returned That he was committed Per speciale mandatum domini Regis and you say because the Return was so generall the rule of the Court was that it should be amended or else he should be discharged I will open to you what the reason of that rule was for that notice was taken that the Keeper of the Prison had used a false Return and had usurped the name of the King I know not how but the commitment was not by the Kings command and that was the cause that he had day given him to amend his Return but his body was remaunded to Prison as you shall see the Record Vide the Record c. The last president that you used was that of Sir Thomas Monson and that was so notorious and so late that I marvell that was offered at all it made me jealous of all the rest that was so notorious and now I have omitted none you brought me Vide the Record By this Record you may see that he was committed by divers Lords of the Councell and it was for the suspition of the death of Sir Thomas Overbury and it is notoriously known that he was brought hither to plead his pardon I will not tell you that you read all these presidents for you read none but urged them here before us but we required you to bring them to us and they were brought to us Master Corbet brought them all but one and that Master Noye brought it was in 22 H. 8. Parkers Case And one Master Holborn a man whose face I never saw before nor is he now in mine eye did yesterday bring us one president to this purpose and it was Sir John Brockets Case in 1 Jac. he was committed to the Gatehouse and upon a Habeas Corpus the Keeper returned that Commiss ' suit per Warrantum Dominorum de Privat ' Concilio cujus tenor sequitur in haec verba viz. To the Keeper of the Gatehouse c. vide Master Seldens presidents but see upon what ground he was bailed it was a speciall command of the Lords of the Councell Vide the Record These are all the Records and presidents that you ministred unto us in your Argument and that were delivered unto us for I have dealt faithfully with you and now you have seen them in the Cases I would have any man judge of the conclusion which you made the last day That when a man is committed and the case not known but it is certified to be by the Kings speciall commandment and the Habeas Corpus is procured by your selves and speeded by the King that we can discharge or bail them Then the presidents are all against you every one of them and what shall guide our judgements since there is nothing alledged in this case but presidents that if no cause of the commitment be expressed it is to be presumed to be for matter of State which we cannot take notice of you see we finde none no not one that hath been delivered by bail in the like cases but by the hand of the King or his direction If we should cease here you see you have shewn nothing to satisfie us and we know that you that be of their Councell will satisfie your Clients therein But you shall see that we have taken a little pains in this Case and we will shew you some presidents on the other side and I beleeve there be five hundreth of this nature that may be cited to this purpose I shall go retrograde and go backwards in citing the years of the presidents that I shall mention I will begin with 7 H. 8. Edward Page he was brought hither by the Steward of the Marshalseys who returned that he was committed Per mandatum domini Regis and he was remitted so that he was not delivered upon this generall Return but he was remaunded The next was 12 H. 7. there you shall see a president where one was committed his name was Thomas Yow he was committed for felony and also Per mandatum domini Regis and the Kings Atturney came hither and released the Kings command and thereupon he was bailed Master Noye It is all one with Parkers Case Chief Iustice Hide No for here were two causes of the commitment Hubbert was then the Kings Atturney and he signified in open Court that he was discharged by the Kings command and Postea traditur in ball ' pro suspicione feloniae The next was Humphrey Booths 9 H. 7. Rot. 14. you shall finde it much to that purpose as the other was before he was imprisoned for an outlawry and by the commandment of the King also and after that the release of the Kings commandment was certified to the chief Justice he was thereupon discharged Vide the Record The next is 7 H. 7. Thomas Brown Iohn Rawlings and Robert Sherman and others were committed Per mandatum domini Regis and for felony outlawry and other causes as appears by
THE ARGVMENTS UPON THE WRIT OF Habeas Corpus IN THE COURT OF KINGS BENCH WHEREIN Are learnedly discussed not onely the severall Branches of the said Writ but also many Authorities as well of the Common as Statute Law and divers ancient and obscure Records most amply and elaborately debated and cleared TOGETHER With the Opinion of the Court thereupon Whereunto is annexed The Petition of Sir Iohn Elliot Knight in behalf of the Liberty of the Subject LONDON Printed by M. F. for W. Lee M. Walbancke D. Pakeman and G. Bedell 1649. ARGUMENTS upon the Habeas Corpus concerning Loans Sir Thomas Darnell his Case Michaelis 3º Caroli Banco Regis SIR Thomas Darnell Baronet being imprisoned in the Fleet by vertue of a warrant signed by the Kings Atturney Generall upon the third of November by Sergeant Bramston his assigned Councell moved the Justices of the Kings Bench to grant him a Writ of Habeas Corpus cum causa directed to the Warden of the Fleet to shew that Court the cause of his imprisonment that thereupon they might determine whether his restraint were legall or illegall and it was granted by the Court returnable Thursday following the 8th day of November On Thursday Sir Thomas Darnell expected that his Writ should be returned but it was delaied and it was moved that the return should be on Saturday the tenth of November which made Sir Thomas Darnell the more remisse in suing out an Alias upon his Habeas corpus On Saturday the Writ was not returned and thereupon the Kings Atturney Generall gave order for an Alias upon the Habeas corpus for Sir Thomas Darnell returnable upon Thursday morning the thirteenth of November by vertue of which Writ the Warden of the Fleet brings Sir Thomas Darnell to the Kings Bench and returneth as followeth Executio istius brevis patet in quadem schedula annexat ' huic brevi The Return was this Ego Henricus Liloe Miles gardianus prisone Domini Regis de le Fleet Serenissimo domino Regi certifico quod dict' Thomas Darnell Baronet detentus est in prisona praedict ' sub custodia mea virtute cujusdam Warranti duorum de privato Consilio mihi directi cujus tenor sequitur in his verbis viz. Whereas heretofore the body of Sir Thomas Darnell hath been committed to your custody these are to require you still to continue him and to let you know that he was and is committed by the speciall command of his Majesty c. Et haec est causa detentionis predict ' Thomae Darnell Sergeant Bramston May it please your Lordship I did not expect this Cause at this time neither did I hear of it untill I came now into the Hall and therefore I shall now humbly shew you what my Client hath informed me since my comming hither I understand by him that he expected not his comming to this place to day the writ by which he was brought hither was not moved for by him but was procured without his privity and seeing his case is so and that he perceives the cause of his comming which before he knew not his motion to your Lordship is that you would be pleased to let him have the Copy of the return and give him time to speak unto it and that this writ being not sent out by his procurement may not be field Heath Attorney Generall My Lords it is true that this Gent. Sir Thomas Darnell being imprisoned in the Fleet did heretofore move your Lordship for a Habeas Corpus c. and it was granted him and his Majesty being made acquainted therewith was very willing that he and all his people might have equall Justice and when they desire that which seemes to accord with the rules of the Law they should have it But it fell out so that on the day when the writ should have been returned the Warden of the Fleet did not return it as it was his duty to have done he did forbear to do it upon a commandement because it was conceived there being five at that time to appear the Court would have been straitned for want of time but I imagined that these gentlemen who did desire the writ before should have again been earnest to renew them which it seemes they did not This Habeas Corpus was sent out by speciall command because these gent. gave out in speeches and in particular this gent. That they did wonder why they should be hindred from triall and what should be the reason their writs were not returned nay his Majesty did tell me that they reported that the King did deny them the course of Justice and therefore hee commanded me to renew the writ which I did and think I may doe it ex officio Sir Thomas Darnell My Lords I knew not untill now but that I was committed by Mr. Atturneys warrant only and thereupon I did desire a Habeas corpus at the Barre which you were pleased to grant me but now I understand that my restraint is by another means and therefore I shall crave leave to have some time to speak to it And as for the words alledged against me as if I had spoken them I humbly pray they may be no disparagement to my cause for I do patiently referre my self to your grave censures as being accused of a fact whereof I am no ways guilty Hide Chiefe Justice You give a temperate and fair answer and now you may perceive the upright and sincere proceedings that have been in this businesse you did no sooner petition to have Councell assigned you but you had it granted to you for indeed we cannot deny it and I know not but that any Councell might have moved for you without having been assigned for you and yet have had no blame for it is the Kings pleasure his Lawes should take place and be executed and therefore doe wee sit here when you made a motion of the Habeas corpus that was likewise granted whether the commitment be by the King or others this Court is a place where the King doth sit in person and we have power to examine it and if it appears that any man hath injury or wrong by his imprisonment we have power to deliver and discharge them if otherwise he is to be remanded by us to prison again now it seems you are not ready to speak to this return if you desire further day we ought to grant it Sir Thomas Darnell My Lords I humbly desire it Chief Justice I know no cause why it should be denied Sergeant Bramston My Lords we shall desire the writ may not be filed and that we may have a Copy of the return Atturney Generall You cannot deny the filing of the writ if you desire to have a Copy of the return Chief Justice Although you be remanded at this time to prison because you are not ready to speak to the return we can adjorn you to a new day upon the Writ and so you may prepare your self but
prison or no I conceive that he ought not to be continued in prison admitting that the first commitment by the command of the King were lawfull yet when he hath continued in prison by such reasonable time as may be thought fit for that offence for which he is committed he ought to be brought to answer and not to continue still in prison without being brought to answer For it appears by the Books of our Laws that liberty is a thing so favoured by the Law that the Law will not suffer the continuance of a man in prison for any longer time then of necessity it must and therefore the Law will neither suffer the party Sheriffs or Judges to continue a man in prison by their power and their pleasure but doth speed the delivery of a man out of prison with as reasonable expedition as may be And upon this reason it is resolved in 1 2 El. Dyer 175. 8 Ed. 4. 13. That howsoever the Law alloweth that there may be no terme between the test of an originall Writ and the return of the same where there is only a summons and no imprisonment of the body yet it will not allow that there shall be a term between the test of a Writ of Capias and the return of the same where the body of a man is to be imprisoned insomuch that it will give no way that the party shall have no power to continue the body of a man imprisoned any longer time then needs must 39 E. 3. 7. 10 H. 7. 11. 6 E. 4. 69. 11. E. 4. 9. 48 E. 3. 1. 17 E. 3. 1 2 Hen. 7. Kellawaies Reports do all agree that if a Capias shall be awarded against a man for the apprehending of his body and the Sheriffe will return the Capias that is awarded against the party a non est inventus or that languidus est in prisona yet the Law will allow the party against whom it is awarded for the avoiding of his corporall penance and dures of imprisonment to appear gratis and for to answer For the Law will not allow the Sheriffe by his false return to keep one in prison longer then needs must 38 Ass pl. 22. Brooks imprisonment 100. saith That it was determined in Parliament that a man is not to be detained in prison after he hath made tender of his fine for his imprisonment therefore I desire your Lordship that Sir John Corbet may not be kept longer in durance but be discharged according to the Law The Lord Chief Justice his Speech Master Atturney you have heard many learned Arguments if you be provided to answer presently we will hear you but if you will have a longer day for that you are not provided to argue you may we will give it you Doderidge If you will you may see these presidents it may be you have not seen some of them and we must see them too Heath Atturney May it please your Lordship the Gentlemen that be of Councell with the Knights at the Barre they have said much and spoken very long for their Clients and to good purpose and pertinently It is a cause that carrieth with it a great deal of weight both towards the King and his Subjects also and I am not so hasty to put my self upon the main point of this cause when it is almost time for your Lordship to rise My Lord the Gentlemen have severally spoken and given and insisted upon severall reasons and they have cited many presidents I could say something of them at this present and that some of them have been mistaken and therefore I beseech your Lordship that I may have time to answer that I may not wrong the cause of the Kings part or slight the cause on the Subjects part But that which I desire to say now is that these Gentlemen have all of them gone in one form to divide the cause into two parts part 1 The first the form of the Return part 2 The second the matter of the Return For the form me thinks we may put an end to that now if your Lordship please that we may have no return to that another day but I may apply my self unto the matter of the Return To the form of the Return they have taken divers exceptions but they especially insisted upon two main heads First that the Return is not good because it is not an absolute Return I confesse the ground is well laid and the Major is good that if this Return be not positively the Return of the Warden of the Fleet himself but the relation of another it is no good Return therefore I need spend no time in that the ground being well laid but under your Lordships favour the Major proposition I deny we differ onely in that for I say that this Return is certain and that it is not the words of any man else but the express words of the Warden himself and that this is added ex abundanti to give satisfaction to the Court that he had order to make the Return therefore I desire your Lordship to cast your eyes upon the substance of the Return and distinguish it into parts The words are Detentus est in prisona sub custodia mea per speciale Mandatum domini Regis mihi significatum per Warrantum duorum Privati concilii dicti domini Regis c. If he had turned these words and said Detent ' est prout mihi significat ' per Warrantum duorum Privati concilii per speciale mandatum domini Regis then it might be taken to be the words of the Lords of the Councell but the first words being positive Detentus est per speciale mandatum domini Regis that is sufficient and the rest is surplusage and he doth not say prout mihi significut but mihi significat onely which is absolute and the resolution thereof resteth more in your Lordships expounding of the words then in putting any case upon them The second exception is taken to the form of the Return for that there is not the cause of the imprisonment returned but of the detaining alone My Lord I say no more to that but this No man is bound to answer more then that which is the contents of the Writ I know the Writ it may be to know specially the cause of the detaining or what the cause of the caption is onely and if the Officer make answer to that which is required of him in the Writ it is sufficient it may be there be presidents both ways I am sure there are detentions onely and there is no cause why the Officer should shew the time of his commitment but if the Prisoner shall desire it your Lordship may grant him a Writ to shew the cause both of his caption and detention also Thirdly they say that this Return is uncertain and that it is the Warrant of the Lords of the Councell and not of the King by which he is committed For that my
Court hath delivered the party but you shall see the contrary concluded in every Case that you have put where the cause of the commitment hath been expressed there the party hath been delivered by the Court if the Case so required but where there hath been no cause expressed they have ever been remaunded or if they have been delivered they have been delivered by the Kings direction or by the Lords of the Councell If this fall now in proof you see you have gathered fair conclusions out of the Records and that you may see that this is so I have brought the Records with me of your own propounding and I will goe through them from point to point and then judge your selves of the case It is not materiall whether I call for them in that order as you produced them or no and therefore I will take them as they are first or last in the Kings Reign They are in number many in the time of Henry the seventh Henry the eighth Queen Mary Queen Elizabeth and King James his time I will shew you Sir Thomas Monsons Case in 14 Iacobi which was in all our memories I will begin with Pasche in 8 H. 7. Roger Cherries Case you vouched it to this purpose That Cherry being committed by the Major of Windsor was brought hither by a Habeas Corpus and the Major he returns that he was committed Per mandatum domini Regis and that thereupon he was delivered but you shall find by the Record that he was committed by the Major at the suit of the King for felony for which he was afterwards indicted brought to a triall and then discharged Vide this Record in Master Seldens Argument in the Parliament 3 4 Caroli Regis and so all the rest after mentioned The next was 19 H. 7. Vrswicks Case and you say he was brought hither by the Warden of the Fleet who as you said returned that he was committed Per mandatum domini Regis and you said he was discharged but he was bailed upon the Lords Letter and brought hither to record his return for he was bound to appear here and then he was discharged but that was the cause of his bringing hither vide the Records as aforesaid The next was Hugh Pains Case in 21 H. 7. and that you urged thus you say that he was brought hither by a Habeas Corpus by the Warden of the Fleet who returned that he was committed by the Kings Councell and he was bailed Now we finde that he was committed by them for suspition of felony and that cause was declared and he was bailed so that you see there was a cause expressed Vide the Record aforesaid The next is 2 H. 8. Thomas Beckley and Robert Harrisons Case these you said were brought in hither by George Earle of Shrewsbury and Thomas Earle of Surrey and the Return was that they were committed by the command of Hen. 7. and that they were bailed but you shall finde that they were committed for suspition of felony and that Harrison was committed by Hen. 7. but it was for Homicide upon the Sea and so the cause is expressed and afterwards he was bailed The next was in 22 H. 8. John Parkers Case you urged it to this purpose That he was brought hither by a Habeas Corpus by the Sheriffs of London and they you said returned that he was committed Per speciale mandatum domini Regis nunciatum c. by Robert Peck c. the cause why you urged this was twofold first that he was committed by the Kings command and yet he was bailed secondly that he was committed Per mandatum domini Regis nunciat ' per such a one But you shall finde by the Record that he was committed for the security of peace and for suspition of felony and that was the cause for which he was bailed for he is bailable by Law when such a cause appears Vide the Record as afore Goe on to the next and that is Peter Mans Case in the 3 4 Philip and Mary you urged that to this purpose You say that he was brought by the Keeper of the Gatehouse and you say that he returned that he was committed by the command of the King and the Queens Councell and thereupon he was bailed but you shall finde that he was committed for suspition of felony and robbery and thereupon he was bailed The next is in the 4 5 Phil. Mar. Edward Newports Case you said that the Constable of the Tower brought him hither and returned that he was committed by the Councell of the King and the Queen and that he was bailed but you see the Records that he was committed for suspition of coyning which is bailable onely in this Court and therefore it was removed hither yet this I must tell you that it is true in one Record it appears not but as you have cited it but you may see how it is supplied by another Record and the cause and he was delivered by a Proclamation Vide both Records in Master Seldens Argument as aforesaid Doderidge He could not be delivered by Proclamation unlesse it was for a criminall cause Hide Chief Iustice Observe another thing in the Book he is brought hither by the speciall command of the Councell so that although it appears not in the Record yet if the King or Lords mean to have him tried for his life he is brought hither Then you cited Robert Constables case 9 Eliz. and you said he was brought hither by the Lieutenant of the Tower who returned that he was committed by the Lords of the Councell and thereupon he was bailed but you shall finde that he came hither to plead his pardon and he was pardoned Vide the Record as aforesaid Thomas Laurence Case in 9 Eliz. is the same with Constables for it appears that he was brought hither to plead his pardon and he was pardoned and that was the cause he was brought hither The next was in 21 Eliz. John Brownings case it is true he was committed by the Lords of the Councell and he was brought by a Habeas Corpus to the chamber of Sir Christopher Wray Chief Justice and he was there bailed The next was 33 Eliz. William Rogers and he you said was brought hither by the Keeper of the Gatehouse who returned that he was committed to him by the Lords of the Councell yet there was a cause expressed and that was for suspition of coining of money The next was in 39 Eliz. Lawrence Brown you say that he was brought hither by the Keeper of the Gate-house who returned that he was committed for divers causes moving the Lords of the Councell and thereupon he was delivered but the Record is that the Return also was for suspition of Treason and although the suspition of Treason appears not in one Record yet there is another for it Here you see cause of his commitment and that he was bailed but it was by the Kings command Vsque