per speciale mandatum Domini Regis ideo predicutus Johannes remittitur prefato Custodi Marr. hospitii predict salvo custodiend quousque c. that is quousque secundum legem deliberatus fuerit And if that Court which is the highest for ordinary Justice cannot deliver him secundum legem what Law is there I beseech you my Lords that can be sought for in any other inferiour Court to deliver him Now my Lords because this draught if it were entred in the Roll as it was prepared for no other purpose would be a great declaration contrary to the many Acts of Parliament already cited contrary to all Presidents of former times and to all reason of Law to the utter subversion of the chiefest Liberty and Right belonging to every Free-man of the Kingdome and for that especially also it supposeth that divers ancient Records had been looked into by the Court in like Cases by which Records their Judgements were directed whereas in truth there is not one Record at all extant that with any colour not so much indeed as with any colour warrants the Judgement therefore the House of Commons thought fit also that I should with the rest that hath been said shew this draught also to your Lordships I come now to the other kind of Presidents that is solemn Resolutions of Judges which being not of Record remain only in authentick Copies But of this kind there is but one in this Case that is a resolution of all the Judges in England in the time of Queen Elizabeth It was in the foure and thirtieth yeare of her reign when divers persons had been committed by absolute command and delivered by the Justices of one Bench or the other whereupon it was desired that the Judges would declare in what Cases persons committed by such Command were to be enlarged by them The resolution hath been variously cited and variously apprehended The House of Commons therefore desiring with all care to enforme 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 learned and reverend Chief Justice of the Common Pleas that was one of them that gave the Resolution which is entred at large in that book I mean the Lord Chief Justice Anderson It is written in that book in his own hand as the rest of the book is And however it hath been cited and was cited in that great Judgement given upon the habeas Corpus in the King's Bench as if it had been that upon such commitments the Judges might not baile the prisoners yet it is most plain that in the resolution it self no such thing is contained but rather expresly the contrary I shall better represent it to your Lordships by reading it then by opening it Then it was read If this Resolution doth resolve any thing it doth indeed upon the matter resolve fully the contrary to that which hath been pretended and enough for the maintenance of this ancient and fundamentall point of Liberty of the Person to be regained by habeas Corpus when any man is imprisoned And I the rather thought 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 Libertie as also at the Bench yet though every thing else of Record that was used was at large read openly this was not read either at Barre or Bench. For indeed if it had every hearer would easily have known 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 Record and that draught of the Judgement in the like Case as also the Resolution I shall now as I had leave and direction given me least your Lordships should be put to too much trouble and expense of time in the finding or getting Copies at large of these things which I have cited offer also to your Lordships authentick Copies of them all and so leave them and whatsoever else I have said to your Lordships further consideration The whole Copies of the Presidents of Record mentioned in one of the Arguments made at the first Conference with the Lords touching the Liberty of the Person of every Free-man INter Recorda Domini Regis Caroli in Thesaurario Receptus Scaccarii sui sub custodia Dom. Thesaurarii Camerarii ibidem remanentia viz. Placita coram Domino Rege apud Westmonasterium de Termino Paschae anno Regis E. 3. post conquestum Angliae 15. inter alia sic continetur ut sequitur Adhuc de Termino Paschae London sc. Dominus Rex mandavit dilecto fideli suo Roberto de Dalton Constabulario Turris suae London vel ejus locum-tenenti breve suum in haec verba Edwardus Deigratia Angliae Franâ—iae Rex Dominus Hiberniae dilecto fideli suo Roberto de Dalton Constabulario Turris suae London vel ejus locum-tenenti salutem Mandamus vobis quod Iohannem de Bildeston Cappellanum quem vicecomites nostri London ad mandatum nostrum apud praedictam Turrim vobis liberabunt ab eisdem recipiatis in prisona nostra Turri praedicta custodiri faciatis quousque aliud vobis super hoc duxerimus de mandato Teste me ip so apud Turrim nostram London trigesimo die Martii anno Regni nostri Angliae sextodecimo Regni vero nostri Franciae tertio Et modo scilicet in Craft Ascension Dom. anno Reg. nunc 18. coram Domino Rege apud Westm. venit Iohannes de Wyndwick locum-tenens praedicti Constabularii adduxit coram Justiciarios hic in Curia praedicta Iohannem de Bildeston quem alias à praefatis vicecomitibus virtute brevis praedicti recipit c. Et dicit quod ipse à Domino Rege habuit in mandatis ducendi liberandi Corpus ipsius Iohannis de Bildeston praefat Justic. hic c. Et quaesitum est à praedicto Iohanne Wyndwick si quam aliam detentionis praefat Iohannis de Bildeston habeat causam Qui dicit quod non nisi breve praedict tantum Et quia videtur Curiae breve praedict sufficientem non esse causam praedict Iohannem de Bildeston in prisona Marescall Reg. hic retinend c. idem Iohannes dimittitur per manucaptionem Willielmi de Wakefield Rectoris Ecclesiae de Willingham Iohannis de Wyndwick de com Lancaster Iohannis de Lakenham Iohannis de Norton de com Norsolciae Nicolai de Wandesford de com Midd. Rogeri de Bromley de com Staff qui eum manuceperunt habendi eum coram Domino Rege in Octabis sanctae Trinitatis ubicunque c. viz. corpora pro corpore Ad quas Octab. sanct Trinit coram Domino Rege apud Westm. venit praedict
to the Barre on Munday next Which is Ordered At the Committee for Religion SIr Thomas Hobbie from the Committee reported for the examination of the Keeper and Clerk of Newgate concerning the Priests there being a Warrant under the Attorneys hand for the deliverie of the Persons a Warrant under the Lord Chief Justices hand according to a Letter which he received from the Lord of Dorset signifying that it was his Majesties pleasure that the Priest condemned should be reprived Another Warrant under the Attorneys hand that the Priests condemmed should be reprived and also in the Kings name to release those other nine persons Sir Nathaniel Ritch I am confident the Grace of the King hath been abused in this that therefore the privie Counsellers of this House may know whether it were his Majesties direction It is moved that Mr. Secretarie Cook may first declare his knowledge in this One Cross gave intimation of these persons First the Secretarie Super totam maternam It is evident that the Colledge at Clarkenwell is a Colledge of Iesuits holden under a Forreign Supream power Sir Francis Seymour taxeth Mr. Attorneys affection and judgement in this and also declareth continual Letters from Mr. Attorney in stay of proceedings against Recusants You see in this how slightly Mr. Attorney hath put over a business of this weight to Mr. Long. Cross the Pursevant saith there was an Eleventh man in the New Prison and the Keeper of that Prison said he was delivered by Warrant from the Councel-board Sir Iohn Elliot No man could find a way on which to vent his malice so much to this Church and State as by protecting these men That this may be fixed home on that great Lord of Dorset that I fear hath defiled his fingers too far in this business and on Mr. Attorney whom I am sorrie I have occasion to nominate so often in this matter of Religion in stopping of proceedings against Recusants Mr. Recorder is ordered to be sent for and to be examined in this rather than to be sent for having had the Honor formerly to sit in the Chair Secretarie Cook saith we shall find that the King being mercifull in case of shedding bloud gave direction for the repriving of those Priests Sir Iohn Elliot I doubt not when we shall declare the depth of this to his Majestie but he will render them to judgement that gave him advice herein Sir Nath. Ritch These Iesuits are bound by Sureties to answer further at the Councel-board I wish these Bonds would produce these Men that by examination of them we may find out the whole pack of their Benefactors and Countenancers Mr. Long saith that he offering at Session the Evidence by order from M. Attorney the Lord Chief Justice Richardson interrupted him and told him he must speak to the point in issue whether Priests or no Priests and hereupon the Judges consulted amongst themselves Mr. Selden saith he was present at the Sessions and plain Treason was proved and nothing done in it The further examination of this is referred to a select Committee Munday 16. A Petition of Complaint against Sir Henry Martin for disposing of the goods of one Brown who died intestate to his own private use Sir Henry Martin If I prove not my self as clear of this as St. Iohn Baptist let me be reckoned to be a Jew Referred to the Committee for course of Justice At the Committee for Religion MAster Stroud That the Lord Chief Justice may be called to give an account of his stay of Justice in the execution of the condemned Priests which he ought not to have done though his Majestie signified his pleasure to the contrarie Chancellor of the Dutchie That was a thing ordinarie for a Chief Justice to do in Queen Elisabeths and King Iames times as also a Declaration in the Star-chamber that all condemned Priests should be sent to the Castle of Wisbitch and from hence though the King had given no order for the replevie he might have taken his Warrant for his proceedings Mr. Selden reporteth from the Committee for the further examination of Mr. Long concerning the proceeding at Newgate against the Iesuits whereby plainly appeareth that the evidence tendered in the Court at Newgate did plainly testifie these men to be Priests yet the Lord Chief Justice Richardson did reject the same against the sence of the rest of the Judges and Justices present whereby it is plain he dealt under-hand to some of the Iesuites Ordered That two Members shall be sent to each Judge that were present at the Sessions at Newgate who were said to be the Lord Chief Justice of the Kings Bench the Chief Justice of the common-Common-pleas Justice Whitlâ—ck Justice Iones and Justice â—rook Tuseday 17. MAster Chambers preferreth another Petition in complaint of a Warrant newly proceeding from the Councel-board for the stay of the Merchants goods unless they payed the duties that were due in King Iames his time Sir Iohn Elliot You see as by the last answer from the Exchequer the Merchants were bounded within the Court to sue for their own so they are now debarred from all means of coming by their own It is Ordered that the Customers shall attend the House on Thurseday next In the mean time it is referred to the former Committee Ordered a Committee of six to Collect and take all the names at the Fast and to meet at eight of the Clock in the Morning Ordered That a Committee shall consider of a speedie way to put the Merchants in Possession of their goods without which it is warned we sit here in vain Sir Thomas Hobbie Reported from my Lord Chief Justice Hide that he doth not remember any Papers tendred by Mr. Long were rejected or that he affirmed they were dangerous persons and a Colledge of Iesuits but howsoever Mr. Long tendred nothing to prove them so but that he had diverse papers in his hand Mr. Wansford Reported from the Lord Chief Justice Richardson who saith that Mr. Long did discourse of the place and house but did not press the reading of any papers neither doth he know what was in the papers neither knew he any thing to prove the persons Priests Sir Thomas Barrington delivereth the answer of Justice Iones who saith the same papers were offered by Mr. Long but he knoweth not the Contents thereof nor the reason why they were refused but he came late for want of his health and the second day was not there at all The like â—as Reported by Sir Will. Constable from Justice Crook Sir Thomas Barrington saith Although that Justice Iones did not write the name of my Lord Chief Justice Richardson yet in discourse named him to be the man that said The point in proof is not whether they be Priests or no Priests Sir Nath. Ritch Here is a charge of a high nature on the Judges by Mr. Long. That Mr. Long now may make good his Charge or suffer for it for there were witnesses enough in
14 M r. Goodwins speech March 22. pag. 18 Sir Francis Seymour's speech ibid. Sir Thomas Wentworth's speech pag. 20 The speech and Argument of M r. Creswell of Lincolnes Inne concerning the subjects grievance by the late Imprisonment of their persons pag. 21 Sir Benjam Ruddier's speech pag. 27 Sir Robert Phillip's speech pag. 28 Sir Thomas Edmonds pag. 30 Sir Iohn Elliot ibid. Sir Hum May ibid. The Petition for the fast March 26. 1628. pag. 31 The Kings Propositions March 28. pag. 32 Three grand questions ibid. Sir Iohn Coke his speech at a Conference between the Lords and Commons about the Petition to the King against Recusants pag. 33 The Petition of both Houses to his Majesty concerning Recusants March 31. pag. 34 The Kings Answer to the Petition against Recusants pag. 37 The Answer to the same Petition by the Lord Keeper Coventry pag. 38 Sir Edward Cokes speech March 25. upon a Question of law in point of Judgement given in the Kings Bench Mich. 3. Caroli viz. that a Prisoner detain'd by Commitment per special Mandat Regis without expressing a Cause is not Bailable wherein he held negatively pag. 39 The substance of the Kings speech upon the relating of the proceedings of the Parliament to him by the Counsellers of the Commons house of Parliament April 4. pag. 41 The Duke of Buckinghams speech to his Majesty the 4 of April ibid. S r Iohn Elliot in Answer to M r Secretary Coke's message of thanks from the King and the Duke of Buckingham delivered in the Commons house of Parliament April 5 pag. 43 A message by Secretary Coke from the King to the lower house April the 7 pag. 44 S r Benjamin Ruddier's speech upon the Receit of his Majesties Answer to the petition against Recusants pag. 45 The Kings message to the House of Commons by M r Speaker April 12. pag. 46. The petition concerning billetting of souldiers April 14. pag. 47 Nine heads of the House of Commons to the Speaker pag. 49 The Speaker S r Iohn Finches speech upon the nine heads pag. 50 The Kings Answer to the petition concerning billetting of souldiers pag. 53 S r Dudley Diggs his Introduction pag. 54 The Argument made by M r Littleton at the Command of the House of Commons out of Acts of Parliament and Authorities of Law expounding the same at the first Conference with the Lords touching the person of every Freeman pag. 56 The Objections of the Kings Councell with the Answers made thereto at the two Conferences touching the same matter pag. 65 The true Copies of the Records not printed which were used on either side of that part of the debate pag. 70 The Argument which by Command of the House of Commons was made at their first Conference with the Lords touching the liberty of the person of every Freeman out of presidents of Record and resolutions of Judges in former times by M r Selden pag. 76 The whole copies of the presidents of Record mentioned in one of the Arguments made at the first conference with the Lords touching the liberty of the person of every Free-man pag. 92 S r Edward Coke pag. 107 The Arguments of Serjeant Bramston on the Habeas Corpus pag. 111 The Argument of M r Noye upon the Habeas Corpus pag. 117 The Argument of M r Selden upon the Habeas Corpus pag. 122 The Argument of M r Calthrop upon the Habeas Corpus pag. 125 The substance of the Objections made by M r Attorney generall before a Committee of both Houses to the Argument that was made by the House of Commons at the first Conference with the Lords out of presidents of Record and resolutions of Judges in former times touching the liberty of the person of every Free-man and the Answer and replies presently then made by the House of Commons to these Objections pag. 121 The proceedings against the Earl of Suffolk April 14. p. 135 Severall speeches made at the Debatesconcerning the Kings propositions pag. 138 M r Alford ibid. S r Robert Maunsell ibid. S r Francis Seymour ibid. S r Peter Hayman ibid. M r Pimme ibid. Secretary Coke ibid. S r Dudley Diggs pag. 139 M r Spencer ibid. M r Iohn Elliot ibid. S r Edward Coke ibid. S r Thomas Wentworth pag. 146 S r Henry Martin ibid. M r Kirton ibid. S r Robert Phillips ibid. Serjeant Hoskins ibid. Serjeant Ashleys Argument seconding M r Attorney in the behalf of his Majesty pag. 141 M r Noyes Argument April 16 pag. 144 M r Glanvills Argument pag. 145 The Answer of the Judges for matter of fact upon the Habeas Corpus April 21 pag. 146 Iudge Whitlock's speech pag. 147 Iudge Iones his speech pag. 148 Iudge Doderidges speech pag. 149 The Lord chief Iustice his speech ibid. The Earl of Warwick's speech April 21 pag. 150 The Arch Bishop of Canterburies speech at the Conference of both Houses April 25 pag. 153 The five propositions read by the Lord Bishop of Norwich April 25. 1628 ibid. S r Dudley Diggs his speech in behalf of the Commons pag. 154 S r Benjamin Ruddier's speech April 28 pag. 157 The Lord Keeper's speech April 28. pag. 157 The Bishop of Exceter's letter sent to the House of Commons April 28. pag. 158 M r Hackwell of Lincolnes Inne his speech in the lower House May 1 pag. 159 The objections against M r Hackwel's speech ibid. Secretary Coke's message May 1 pag. 161 Secretary Coke's speech concerning himself and the nature of his place under his Majesty pag. 162 Henry Tomson one of the Sheriffs and Robert Henisworth Alderman of the city of York their submission for their indirect choosing of S r Thomas Savil Knight pag. 163 Propositions drawn for the defence of this Kingdome and the annoyance of the enemies of the same by sea ibid. Iudge Andersons speech pag. 165 The Kings message May 2 by Secretary Coke pag. 167 M r Masons speech May 2 ibid. The Speakers speech to his Majesty in the banquetting house May 5 pag. 171 The Kings Answer to the House of Commons delivered by the Lord Keeper May 5 pag. 173 The Lord Cok's speech at the Conference in the painted Chamber presenting the petition of Right May 8 pag. 174 The petition of Right to the Kings most excellent Majesty pag. 175 S r Benjamin Ruddier's speech page 178 His Majesties letter to the Lords spirituall and temporall of the higher House of Parliament pag. 180 The Kings message by the Lord Keeper May 21 pag. 181 M r Masons speech concerning the addition propounded by the Lords to be added to the petition of Right pag. 182 The Reasons of the Commons House delivered by M r Glanvil why they cannot admit of the propositions tendred unto them by the Lords 186 S Henry Martin's speech pag. 188 The Kings speech in the Higher House at the meeting of both Houses Iune 2. pag. 194 The Lord Keeper in explanation of the same pag. 195 The Kings Answer to the petition of Right Iune 2.
for bodie as appeareth 33. and 36. 83. in the title of Mainprize p. 12. 13. where the difference betwixt Baile and Mainprize is expresly taken And if the words of the Statutes themselves be observed it will appeare plainly that it extends to the Sheriffs and other inferious Officers and doth not bind the hands of the Judges The Preamble which is the key which openeth the entrance into the meaning of the makers of the Law is Forasmuch as Sheriffs and others which have taken and kept in prison persons detected of fellony Out of these words I observe that it nominateth Sheriffs and then if the Justices should be included they must be comprehended under the generall word other which doth not use to extend to those of a higher rank but to inferious for the best by all course is first to be named And therefore if a man bring a Writ of Customes and Services and name Rents and other things the generall shall not include Homage which is a personall service and of a higher nature but it shall extend to ordinarie annuall services 31. E. 1. Droit So the Statute of 13. Eliz. cap. 10. which beginneth with Colledges Deanes and Chapters Parsons Vicars and concludes with these words and others having spirituall promotions shall not comprehend Bishops that are of a higher degree as appeares in the Archbishop of Canterburies Case reported by S r Edw. Coke lib. 2. fo 46. And thus much is explained in this verie Statute towards the end when it doth enumerate those were meant by the word other namely under-Sheriffs Constables Bailiffs Again the words are Sheriffs and others which have taken and kept in prison now every man knoweth Judges do neither arrest nor keep men in prison that is the office of Sheriffs and other inferiour Ministers therefore this Statute meant such only and not Judges The words are further that they let out by replevine such as were not replevisable that is the proper language for a Sheriff Nay more expresse afterward in the bodie of the Statute that such as are there mentioned shall be in no case replevisable by the common writ which is de homine replegiando and is directed to the Sheriff nor without writ which is by the Sheriff ex officio But that which receives no answer is this That the command of the Justices who derive their authorities from the Crown is there equall as to this purpose with the command of the King And therefore by all reasonable construction it must needs relate to Officers subordinate to both as Sheriffs under-Sheriffs Bailiffs Constables and the like And it were an harsh exposition to say that the Justices might not discharge their own Command and yet that reason would conclude as much And that this was meant of the Sheriffs and other Ministers of Justice appeareth by the recitall 27. E. 1. cap. 3. And likewise by Fleta a Manuscript so called because the Authour lay in the Fleet when he made the book for he lib. 2. cap. 52. in his cap. of Turnes and the views of the Hundred Courts in the Countrie sets down the Articles of the Charges that are there to be enquired of amongst which one of them is de replegiabilibus injuste detentis or irreplegiabilibus dimissis which cannot be meant of not bailing by the Justices for what have the inferiour Courts in the Countrey to do with the Acts of the Justices And to make it more plain he setteth down in this Chapter that concernes Sheriffs only the very Statute of Westm. cap. 15. which he translates verbatim out of the French into the Latin save that he renders taken by the command of the Justices thus per Judicium Justitiariorum and his Preface to the Statute plainly sheweth that he understood it of replevine by Sheriffs for he saith Qui debent per plegiâ—s dimitti qui non declarat hoc Statutum and per plegiâ—s is before the Sheriff But for direct authoritie it is the opinion of Newton the Chief Justice in 22. H. 6. 46. where his words are these It cannot be intended that the Sheriff did suffer him to go at large by mainprize for where one is taken by the writ of the King or the command of the King he is irreplevisable but in such case his friends may come to the Justices for him if he be arrested and purchase a supersedeas So he declares the very Question That the Sheriffs had no power but that the Justices had power to deliver him that is committed by the Kings Command And both the ancient and modern practise manifests as much for he that is taken for the death of a man or for the Forrest is not replevisable by the Sheriff yet they are ordinarily bailed by the Justices and were by the Kings writs directed to the Sheriffs in the times of E. 1. and E. 2. as appeares in the Close Rolls which could not be done if they were not bailable And it is every dayes experience that the Justices of the Kings Bench do baile for murther and for offences done in the Forrest which they could not do if the word irreplevisable in Westm. 1. were meant of the Justices as well as of the Sheriffs For the authorities which have been offered to prove the contrarie they are in number 3. The first is 21. E. 1. Rot. 2. which also is in the book of the Pleas in Parliament at the Tower 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 Rubar the Sheriff of the Counties of Leicester and Warwick was questioned for that he had let at large by sureties one William the son of Walter le Parsons against the will and command of the King when as the King had committed him by Letters under his Privie Seal that he should do no favour to any man that was committed by the command of the Earle of Warwick as that man was Whereunto the Sheriff answered that he did it at the request of some of the Kings houshold upon their Letters and because the Sheriff 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 that he was justly punished for that he is expresly bound by the Statute Westm. 1. which was agreed from the beginning But this is no proof that the Judges had not power to baile this man The next Argument is 33. H. 6. in the Court of Common Pleas fol. 28. 29. where Robert Poinings Esq was brought unto the Barre upon a Capias and it was returned that he was committed per duos de Consilio I believe it is misprinted for Dnos de Consiliâ— i. e. Dominos de Consilio which is strongest against that which I maintain pro diversis causis Regem tangentibus and he made an Attorney there in an accusation whence is inferred that the return was good and
made fully to the maintenance of their resolution and that there was not one example or president of a Remittitur in any kinde upon this point before that of Cesars Case which is before cleared 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 which the house of Commons at which it pleased the Committee of both houses to hear M â— Attâ—rney again to make what Objection he would against other parts of the Arguments formerly delivered by the house of Commons He then Objected against the Acts of Parliament and against the reasons of Law and his Objections to these parts were answered as appears in the answers by order given into the house of Commons by the gentlemen that made them He Objected also upon the second day against that second kinde of presidents which are resolutions of Judges in former times and not of Records and brought also some other Testimonies of opinions of Judges in former times touching this point First for that resolution of all the Judges in England in 34. of Queen Eliz. mentioned and read in the Arguments made at the first conference he said That it was directly against the resolution of the House of Commons and observed the words of it to be in one place that Persons so committed by the King or the Councel may not be delivered by any of the Courts c. and in another that if the Cause were expressed either in generality or speciality it was sufficient and he said that the expressing of a cause in generality was to shew the Kings or Councels Command And to this purpose he read the whole words of that reâ—olution of the Judges Then he Objected also that in a report of one Ruswells Case in the Kings-bench in the 13. Iac. he found that the opinion of some Judges of that Court S r. Edward Coke being then Chief Justice and one of them was that a Prisoner committed per mandatum Domini Regis or privati Consilii without cause shewed and so returned could not be bayled because it might be matter of State or Arcanuâ— Imperii for which he stood committed And to this alâ—o he added an opinion that he found in a Journal of the House of Commons of the 13. Iac. wherein S r. Edward Coke speaking to a Bill preferred for the explanation of Magna Charta â—ouching imprisonâ—ent said in the House That a Prisoner so committed could not be enlarged by the Law because it might be Matter of State for which he was committed And among these Objectiâ—â—â— of other nature also he spake of the confidence that was shewed iâ— behalf of the House of Commons he said that it was not confidence could add any thing to the determination of the question but if it could that he had as much reason for the other side against the resolution of the House grounding himself upon the force of 〈◊〉 Objections which as he conceived had so weakned the Argument of the Commons House that notwithstanding any thing yet Objected they wereupon clear reason 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 far greater weight then any confidence that could be expressed by M. Attorney or whomsoever elâ—e being of his Majesties Councel learned To which purpose the Lords were desired to take into their Memory the difference beâ—ween â—he present quality of the Gentlemen that â—pakâ— iâ— behalf of the House of Commons and of the Kings learned couâ—cel in their speaking there howsoever accidentally they were 〈…〉 of the same profession For the Kings Councel spake as 〈◊〉 perpetuâ—lly retained by Fee and if they made glosses and 〈…〉 adâ—anâ—agious Interpretations soever for their own part thâ—y did but wâ—aâ— belonged to their place and quality as M r. Attornâ—y had done But the Gentlemen that spake in behalf of the House of Commons came therâ— bound on the one side by the trust reposed in them by their Countrey that sent them and on the other bound also by an Oâ—th taken by every of them before they sit in they House to maintain aâ—d deâ—end the rights and prerogatives of the Crown So that 〈…〉 thâ— poâ—â—â— of confidence alone that of them that spake as â—â—tained Councel by perpetual Fee and might by their place being pâ—râ—itâ—ed to speak say what they would and that of them that spake as bound to nothing but truth but by such a trust and such an Oath were no way to be so compared or Counterpoised as if the one of them were of no more weight then the other And then the Objections before mentioned were also answered For that of the resolution of all the Judges of England in 34. Eliz. It was shewed plainly it agreed with the resolution of the House of Commons For although indeed it might have been expressed with more perspicuity yet the words of it as they are sufficiently shew that the meaning of it is no otherwise To that purpose besides the words of the whole frame of this resolution of the Judges as it is in the Coppy transcribed out of the Lord Chief Justice Andersons book written in his own hand which book was there offered to be shewed also in behalf of the House of Commons It was observed that the Records of the first part of it shew plainly that all the Judges of England then resolved that the Prisoners spoken of in the first part of their resolution were onely Prisoners committed with cause shewed for they onely said they might not be delivered by any of the Courts without due Trial by Law and Judgement of acquital had which shews plainly that they meant that by trial and acquital they might be delivered but it is clear that no trial or acquital can be had where 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 without cause shewed which also the Judges in that resolution expresly thought necessary as appears in the second part of the resolution wherein they have these words If upon Return of the 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 return of a commitment is insufficient that hath not a cause shewed of it And to that which Mr. Attorney said as if the cause were sufficiently expressed in generality if the Kings Command or the Councels were expressed in it and as if that were meant in the resolution for a sufficient general cause it was answered That it was never heard of in Law that the power or
given an account of their doings The Lord Say saith he wondred there should be any question made of this business because in his opinion this being the highest Court did admire of no appeal The President said the Judges did not do this by way of appeal but as the most common way for them this being a matter concerning the Kings prerogative Lord Say saith if they will not declare themselves we must take into consideration the point of our priviledge The Duke saith this was not done by the Judges as fearing to answer but of respect to the King And now his brother was come with answer from the King that they might proceed Order was taken that this passage should not be entered into the Journal Book and so Judge WHITLOCK spake MY Lords we are by your appointment here ready to clear any aspersion of the House of Commons in their late presentment upon the Kings-bench that the Subject was wounded in this Judgement there lately given If such a thing were my Lords your Lordships not they have the power to question and Judge the same But my Lords I say there was no Judgement given whereby either the prerogative might be inlarged or the eight of the subject trenched upon It is true my Lords in Michaelmas Term last fower Gentlemen petitioned for a Habeas Corpus which they obtained and Councel was assigned unto them the return was per spialem mandatum Domini Regis which likewise was made known unto us under the hands of eighteen privy Councellours Now my Lords if we had delivered them presently upon this it must have been because the King did not shew cause wherein we should have judged the King had done wrong and this is beyond our knowledge for he might have committed them for other matters then we could have imagined But they might say thus they might have been kept in Prison all their dayes I answer no but we did remit them that we might better advise of the matter and they the next day might have had a new Writ if they had pleased but they say we ought not to have denied bayl I answer if we had done so it must needs have reflected upon the King that he had unjustly imprisoned them and it appears in Dyer 2. Eliz. that divers Gentlemen being committed and requireing Habeas Corpus some were bayled others remitted whereby it appears much is left to the discretion of the Judges For that which troubleth so much remittitur quousque this my Lords was onely as I said before to take time what to do and whereas they will have a difference betwixt remittitur and remittitur quousque my Lords I confess I can finde none but these are new inventions to trouble old Records And herein my Lords we have dealt with knowledge and understanding for had we given a Judgement the party must thereupon have rested every Judgement must come to an issue in matter in fact or demur in point of Law here is neither therefore no Judgement For endeavouring to have a Judgement entered it is true Mr. Attorney pressed the same for his Masters service but we being sworn to do right betwixt the King and his subjects commanded the Clark to make no entry but according to the old form and the rule was given by the Chief Justice alone I have spent my time in this Court and I speak confidently I did never see nor know by any Record that upon such a Retorn as this a man was bayled the King not first consulted with in such a Case as this The Commons House do not know what Letters and Commands we receive for these remain in our Court and were not viewed by them for the rest of the Matters presented by the House of Commons they were not in agitation before us whether the King may commit and how long he may detain a man committed therefore having answered so much as concerneth us I desire your Lordships good constructions of what hath been said Iudge IONES SAid he was here to deliver before us what judgement was given before them concerning the Habeas Corpus he answered no Judgement was given and the Matter of Fact was such as my brother delivered unto you yesterday These 4. Gentlemen were committed to the Flect-Gate-House and Marshall of the Kings House-hold 4. Returns were made upon the Writs and every one of them had a Councellour appointed who had Coppies of the Returns A rule was granted their Councel heard and exception taken to the Return because it did not shew cause of their caption These were of no force in the opinion of the Judges the next exception was because no cause of their commitment was shewed which the Judges held to be all one in point of Law Then my Lords they alleadged many Presidents and Statutes of themselves which the Kings Attorney answered That Persons committed by the King or Councel were never bayled but his pleasure was first known We agreed at the Chamber of the Chief Justice that all the Statutes alleadged are in force but whether we should bayl them or no was the question therefore we remitted them quousque After which Mr. Attorney required a Judgement might be entered I commanded the Clark he should not suffer any such thing to be done because we would be better advised But some will say our Act is otherwise I answered no for we have done no more then we do upon ordinary Writ when we purpose to be better advised and that was onely an Interlocutorie order But my Lords put the case a Habeas Corpus should be granted for one that is committed by the House of Commons would they thinck you take it well he should be bayled at his first coming to the Court I thinck they would not and I thinck the King would have done so in this case now my Lords there is a Petition of Right and a Petition of Grace to be bayled is a matter of Grace therefore if a man be brought upon an Habeas Corpus and not bayled he cannot say the Court hath done him any wrong I have now served seven years Judge in this Court and my conscience beareth me witness that I have not wronged the same I have been thought sometimes too forward for the Liberty of the Subject I am my self Liber homo my Ancestors gave their voice with Magna Charta I enjoy that House still which they did I do not now mean to draw down Gods wrath upon my posterity and therefore I will neither advance the Kings prerogative nor lessen the Liberty of the Subject to the danger of either King or People this is my profession before God and your Lordships Iudge DODDERIDGE SAith it is no more fit for a Judge to decline to give an account of his doings then for a Christian of his Faith God knoweth I have endeavoured alwayes to keep a good conscience for a troubled one who can bear the Kingdom holds of none but God and Judgements do not pass privately
in Chambers but publick in Court where every one may hear which causeth Judgement to be given with maturity Your Lordships have heard the particulers delivered by my brethren how that Councel being assigned to those 4. Gentlemen in the latter end of Michaelmass Term their Cause received hearing and upon consideration of the Statutes and Records we found some of them to be according to the good old Law of Magna Charta but we thought that they did not come so close to this Case as that bayl should be thereupon presently granted My Lords the Habeas Corpus consisteth of 3. parts the Writ the Return upon the Writ or schedule and the Entry or rule reciting the Habeas Corpus and the Return together with the opinion of the Court either a remittitur or traditur in ballium In this Case a remittitur was granted which we did that we might take better advisement upon the Case and upon the remittitur my Lords they might have had a new Writ the next day and I wish they had because it may be they had seen more and we had been eased of a great labour And my Lords when the Attorney upon the remittitur pressed an Entry we all straitly charged the Clark that he should make no other Entry then such as our Predecessors had usually made in like Cases for the difference my Lords betwixt remittitur and remittitur quousque I could never yet finde any I have now sat in this Court 15. years and I should know something surely if I had gone in a Mill so long dust would cleave to my cloaths I am old and have one foot in the grave therefore I will look to the better part as near as I can But omnia habere in memoria in nullo errare divinum potiùs est quam humanum THE LORD CHIEF IUSTICE SAith he shall not speak with confidence unless he might stand right in the opinion of the House and protested what he spake the day before was not said by him with any purpose to trench upon the Priviledges of this House but out of that respect which by his place he thought he owed to the King he said concerning the point he was to speak of that he would not trouble the Lords with things formerly repeated wherein he concurred with his brethren He said if it were true the King might not commit they had done wrong in not partly delivering for my Lords saith he these Statutes and good Laws being all in force we meant not to trench upon any of them most of them being Commentaries upon Magna Charta but I know not any Statute that goeth so far that the King may not commit Therefore justly we think we delivered the interpretation thereof to that purpose for my Lords Lex terrae is not to be found in this Statute they gave me no example neither was there any Cause shewed in the Return A President my Lords that hath run in a storm doth not much direct us in point of Law and Records are the best Testimonies These Presidents they brought being read we shewed them wherein they were mistaken if we have erred erramus cum Patribus and they can shew no President but that our Predecessors have done as we have done sometimes bayling sometimes remitting sometimes discharging Yet we do never bayl any committed by the King or his Councel till his pleasure be first known Thus did the Lord Chief Justice Coke in Raynards Case They say this would have been done if the King had not written but why then was the Letter read and published and kept and why was the Town Clark sent carefully to enquire because the Letter so directed whether these men offered for bayl were subsedy men the Letter sheweth also that Beckwith was committed for suspition of being acquaninted with the Gun-Pouder-Treason but no proof being produced the King left him to be bayled The Earle of WARVVICKS speech 21. April 1628. MY Lords I will observe something out of the Law wherein this liberty of the Subjects Person is founded and some things out of Presidents which have been alleadged For the Law of Magna Charta and the rest concerning these points they are acknowledged by all to be of force and that they were to secure the Subjects from wrongfâ—ll imprisonment as well or rather more concerning the King then the Subject why then besides the grand Charter and those 6. other Acts of Parliament in the very point we know that Magna Charta hath been at least 30. times confirmed so that upon the matter we have 6. or 7. and thereby Acts of Parliament to confirm this liberty although it was made a matter of derision the other day in this House One is that of 36. E. 3. N o. 9. and another in the same year N o. 20. not printed but yet as good as those that are and that of 42. E. 3. cap. 3. so express in the point especially the Petition of the Commons that year which was read by M r. Littleton with the Kings answer so full and free from all exception to which I refer your Lordships that I know not have any thing in the World can be more plain and therefore if in Parliament ye should make any doubt of that which is so fully confirmed in Parliament and in case so clear go about by new glosses to alter the old and good Law we shall not onely forsake the steps of our Ancestors who in Cases of small importance would answer nolumus mutare leges Angliâ— but we shall yield up and betray our right in the greatest inheritance the Subjects of England hath and that is the Laws of England and truely I wonder how any man can admit of such a gloss upon the plain Text as should overthrow the force of the Law for whereas the Law of Magna Charta is that no Free-man shall be imprisoned but by lawfull judgement of his Peers or the Law of the Land the King hath power to commit without Cause which is a sence not onely expresly contrary to other Acts of Parliament and those especially formerly cited but against Common sence For M r. Attorney confesseth this Law concerns the King why then where the Law saith the King shall not commit but by the Law of the Land the meaning must be as M r. Attorney would have it that the King must not commit but at his own pleasure and shall we think that our Ancestors were so foolish to hazard their Persons Estates and labour so much to get a Law and to have it 30. times confirmed that the King might not commit his Subjects but at his own pleasure and if he did commit any of his Subjects without a Cause shewen then he must lie during pleasure then which nothing can be imagined more ridiculous and contrary to true reason For the Presidents I observe that there hath been many shewen by which it appears to me evidently that such as have been committed by the Kings Councel
Treason the King shall not have this Jewell if he payes not the ten pound So if Cattel be distreined and the owner of them afterwards be attainted yet the King shall not have them untill he have satisfied that for which they were distreined And if in these Cases where the owners of the goods are such capitall offendours the King cannot have them much lesse shall he have them when the owner is innocent and no offendour Nay I may well say that almost every leaf and page of all the volumes of our Common Law prove this right of propriety this distinction of meum and tuum aswell between King and Subject as one Subject and another and therefore my Conclusion follows that if the Prerogative extend not neither to Lands nor to Goods then à fortiori not to the Person which is more worth then either lands or goods as I said And yet I agree that by the very law of Nature service of the Person of the Subject is due to his Soveraigne but this must be in such things which are not against the law of Nature but to have the body imprisoned without any cause declared and so to become in bondage I am sure is contrary unto and against the law of Nature and therefore not to be inforced by the Soveraigne upon his Subjects 3. My next reason is drawn ab inuâ—ili incommodo For the Statute de frangentibus prisonam made 1 E. 2. is quod nullus qui prisonam fregerit subeat judicium vitae vel membrorum pro fractione prisonae tantum nisi causa pro qua captus imprisonetur tale Iudicium requirat Whence this Conclusion is clearly gathered That if a man be committed to prison without declaring what cause and then if either Malefactour do break the prison or the Gaoler suffer him to escape albeit the prisoner so escaping had committed Crimen laesae majestatis yet neither the Gaoler nor any other that procured his escape by the Law suffer any corporall punishment for setting him at large which if admitted might prove in consequence a matter of great danger to the Common-wealth 4. My next reason is drawn ab Regis honore from that great honour the Law doth attribute unto soveraigne Majesty and therefore the Rule of Law is that Solum Rex hoc non potest facere quod non potest juste agere And therefore if a Subject hath the donation and the King the presentation to a Church whereunto the King presents without the Subjects nomination here the quare impedit lies against the Incumbent and the King is in Law no disturber And Hussey chief Justice in 1 H. 7. fol. 4. saith that Sir Iohn Markâ—am told King Edw. 4. he could not arrest a man either for treason or fellony as a Subject might because that if the King did wrong the party could not have his Action against him What is the reason that an Action of false imprisonment lies against the Sheriff if he doth not return the Kings Writ by which he hath taken the body of the Subject but this because the Writ doth breviter enarrare causam eaptionis which if it doth not it shall abate and is void in Law and being returned the party when he appears may know what to answer and the Court upon what to judge And if the Kings Writ under his great Seal cannot imprison the Subject unlesse it contains the cause shall then the Kings warrant otherwise doe it without containing the cause that his Judges upon return thereof may likewise judge of the same either to remain or judge the partie imprisoned I should argue this point more closely upon the statute of Magna Charta 29. quod nullus liber homo imprisonetur the statute of West 1. cap. 15. for letting persons to bail and the Judgements lately given in the Kings Bench but the later of these statutes referring having been by that honourable Gent. to whom the Professours of the Law both in this and all succeding ages are and will be much bound already expounded unto us and that also fortified by those many contemporary Expositions and Judgements by him learnedly cited and there being many learned Lawyers here whose time I will not waste who were present and some of them perhaps of councell in the late Cause adjudged in the Kings Bench where you to whose person I now speak do well know I was absent being then of councel in a cause in another Court and my practice being in the Country farre remote from the treasure of Antiquity and Records conducing to the clearing of this point Therefore the narrowness of my understanding commends unto me sober ignorance rather then presumptuous knowledge and also commands me no further to trouble your Patience But I will conclude with that which I find reported of Sir Iohn Davis who was the Kings Serjeant and so by the duty of his place would no doubt maintain to his uttermost the Prerogatives of the King his royall Master and yet it was by him thus said in those Reports of his upon the case of Tavistry Customs That the Kings of England alwayes have had a Monarchy Royall and not a Monarchy Seignorall where under the first saith he the Subjects are Free-men and have propriety in their goods and free-hold and inheritance in their Lands but under the later they are as Villains and Slaves and have proprietie in nothing And therefore saith he when a Royall Monarch makes a new Conquest yet if he receives any of his Nations ancient Inhabitants into his protection they and their heirs after them shall enjoy their Lands and Liberties according to the Law And there he voucheth this President and Judgement following given before William the Conquerour himself viz. That one Sherborn at the time of the Conquest being owner of a Castle and lands in Norfolk the Conquerour gave the same to one Warren a Norman and Sherborn dying the Heir clayming the same by descent according to the Law it was before the Conquerour himself adjudged for the Heir and that the gift thereof by the Conquerour was void If then it were thus in the Conquerour's time by his own sentence and judgement and hath so continued in all the successions of our Kings ever since what doubt need we have but that his most excellent Majestie upon our humble petition prostrated at his feet which as was well said is the best passage to his heart will vouchsafe unto us our ancient Liberties and Birthrights with a through reformation of this and other just grievances And so I humbly crave pardon of this honourable House that I have made a short Lesson long Sir Benjamin Ruddier's Speech March 22. 1627. Mr. Speaker OF the mischiefs that have lately fallen upon us by the late distractions here is every man sensible and that may ensue the like which God forbid we may easily see and too late repent The eyes of Christendome are upon us and as we speed here so go the Fortunes of
was cited and Stamford 72. expounding hereof the commandment of the King to be the commandment of the Kings mouth or of his Councell But it is clear that by praeceptum is understood the commandment of the Justices of the Kings Bench and Common Pleas and this is contemporanea expositio quae est fortissima in lege To this purpose vide Westm. 1. cap. 9. the book of 2. R. 2. item cap. 20. de malefactoribus in parâ— the book of 8 Hen. 4. 5. item 25. 26. 29. cap. ejusdem statuti whereby it may appear that the commandment here spoken of to be the commandment of the King is his commandment by his Judges Praeceptum Domini Regis in Curia non in Camera So it is likewise taken 1. R. 2. cap. 12. in a Statute made in the next Kings reign and expresly in Dyer fol. 162. § 50. fol. 192. § 24. Shall I further prove it by matter of record Fac hoc vives it is 18. E. 3. Rot. 33. coram Rege Iohn Bilston's Case who being committed and detained in prison by commandment of the King was discharged by Habeas corpus eo quod Breve Domini Regis non fuit sufficiens causa All the Acts of Parliament in title of accusation are direct to the point and also the 16. Hen. 6. Brooke and Littleton 2. 1. monstrans de fait 182 per Cur. The King cannot command a man to be arrested in his presence the King can arrest no man because there is no remedy against him 1. Hen. 7. 4. likewise praedict stat cap. 18. the Kings pleasure is not binding without the assent of the Realm I never read any opinion against what I have said but that of Stamford mistaken as you see in the ground yet I say not that a man may not be committed without precise shewing the cause in particular for it is sufficient if the cause in generall be shewed as for Treason c. 1. E. 2. stat de frangend prison nullus habeat judicium c. there the cause of imprisonment must be known else the Statute will be of little force the words thereof doe plainly demonstrate the intent of the Statute to be accordingly I will conclude with the highest authority that is 25. chap. of the Acts of the Apostles the last verse where Saint Paul saith It is against reason to send a man to prison without shewing a Cause Thus Master Attorney according to the rules of Physick I have given you a Preparative which doth precede a Purge I have much more in store The substance of the King's Speech upon the relating of the proceedings of the Parliament to him by the Counsellers of the Commons House of Parliament 4. April 1628. HIs Majestie upon the Report made expressed great contentment that it gave him not valuing the money given comparable to the hearts shewed in the way of the gift for although his great Occasions of State did require more money then at this time was given yet now he made account he could not lack since he had their loves and that this day he thought he had gained more reputation in Christendome then if he had won many battails saying further according to his Speech the first day of the Parliament that they might easily make him in love with Parliaments now he professed he was so and that we should find the fruits of it by his calling us often together And to secure further feares and create future confidence he assureth us that we shall enjoy as great immunity and freedome in his time as ever we possessed or had under the reigne of any the best Kings of this Realm The Duke of Buckingham's Speech to his Majestie on Friday being the 4. of April 1628. Sir ME thinks I now behold you a great King for love is greater then Majestie Opinion that your people loved you not had almost lost you in the opinion of the World but this day makes you appear as you are a glorious King loved at home and now to be feared abroad This falling out so happily I beseech you give me leave to be an humble Suitour unto your Majestie First for my self that I who have had the honour to be your Favourite may now give up my title unto them they to be your Favourite and I to be your Servant My second suit is that they having done all so well you will account of them all as one a Body of many Members but all of one heart Opinion might have made them differ but Affection did move them all to joyn with like love in this great gift For proportion although it be lesse then your occasions may ask yet it is more then ever Subjects did give in so short a time nor am I perswaded it will rest there for this is but an earnest of their affectionâ— to let you see and the world know what Subjects you have that when your Honour and the good of the State is ingaged aâ—d aid asked in the ordinarie way of Parliament you cannot want This is not a gift of â— Subsidies alone but the opening of a Myne of Subsidies which lieth in their hearts This good beginning hath wrought already these good effects they have taken your heart drawn from you a declaration that you will love Parliaments and again this will meet I make no question with such respect that their demands will be just dutifull and moderate for they that know thus to give know what is fit to ask Then cannot your Majestie do lesse then out-go their demands or else you do lesse then your self or them for your Message begat trust their trust and your promise must beget performance This being done then shall I with a glad heart behold this work as well ended as now begun then shall I hope that Parliaments shall be made hereafter so frequent by the effects and good use of them as they shall have this further benefit to deterre from approaching your â—ares those Projectours and Inducers of Innovation as Disturbers both of Church and Common-wealth Now Sir to open my heart and to â—ase my grief please you to pardon me a word more I must confesse I have long lived in pain sleep hath given me no rest favours and fortunes no content much have been my secret sorrows to be thought the Man of Separation and that divided the King from his People and them from him But I hope it shall appeare there were some mistaken mindes that would have made me the Evil Spirit that walked between a good Master and a loyall people for ill offices whereas by your Majesties favour I shall ever endeavour to approve my self a good spirit breathing nothing but the best of service to them all Therefore this day I account more blessed unto me then my birth to see my self able to serve them to see you brought in love with Parliaments to see a Parliament expresse such love to you and God so love me and mine as I
words per legem terrae the Kings Councell were desired to declare their meaning which they never offered to do and yet certainly these words were not put into the Statute without some intention of consequence Whereupon M r Serjeant Ashley offered an interpretation of them thus Namely that there were divers Lawes of this Realme as the Common Law the Law of the Chauncerie the Ecclesiasticall Law the Law of the Admiraltie or Marine Law the Law of Merchants the Martiall Law and the Law of State and that these words per legem terrae do extend to all those Lawes The answer To this it was answered that we read of no Law of State and that none of these Lawes can be meant there save the Common Law which is the principall and generall Law and is alwayes understood by way of excellency when mention is made of the Law of the Land generally and that though each of the other Lawes which are admitted into this Kingdome by Custome or Act of Parliament may justly be called a Law of the Land yet none of them can have the preeminence to be stiled the Law of the Land And no Statute Law-book or other Authoritie printed or unprinted could be shewen to prove that the Law of the Land being generally mentioned was ever intended of any other Law then the Common Law and yet even by these other Lawes a man may not be committed without a cause expressed But it standeth with the rule of other legall expositions that per legem terrae must be meant the Common Law which is the generall and universall Law by which men hold their inheritances And therefore if a man speak of Escuage generally it is understood as Littleton observeth of the incertain Escuage which is a Knights-Service Tenure for the defence of the Realm by the body of the Tenant in time of warre and not of the certain Escuage which giveth only a contribution in money and no personall service And if a Statute speakes of the Kings Courts of Record it is meant only of the 4 at Westm. by way of excellency Coke 6. 20. Gregorie's Case So the Canonists by the excommunication simplie spoken do intend the greater excommunication and the Emperour in his Institutions saith that the Civil Law being spoken generally is meant of the Civil Law of Rome though the Law of every City is a Civil Law as when a man names the Poet the Grecians understood Homer the Latinists Virgil. Secondly admit that per legem terrae extends to all the Lawes of the Realm yet a man must not be committed by any of them but by the due proceedings that are exercised by those Lawes and upon a Cause delivered Again it was urged that the King was not bound to expresse the cause of imprisonment because there may be in it matter of State not fit to be revealed for a time lest the Confederates thereupon make meanes to escape the hands of Justice And thereupon the Statutes cannot be intended to restrain all commitments unlesse a cause be expressed for that it would be very inconvenient and dangerous to the State to publish the cause at the very first Answer Hereupon it was replied by the House of Commons that all danger and inconvenience may be avoided by declaring a generall Cause as for treason suspicion of treason misprision of treason or fellony without specifying the particular which can give no greater light to a Confederate then will be conjectured by his very apprehension upon the imprisonment if nothing at all were expressed It was further alledged that there was a kind of contradiction in the position of the Commons when they say the partie committed without a cause shewed ought to be delivered or bailed Bailing being a kind of imprisonment Delivery a totall freeing To this it was answered that it hath alwayes been 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 done on just weightie Causes that they will not presently set him free but baile him to answer what shall be objected against him on his Majesties behalf But if any other inferiour Officer commit a man without a cause shewed they do instantly deliver him as having no cause to expect their pleasure So the Delivery is applyed to an imprisonment by the command of some mean minister of Justice Bailing when it is done by the Command of the King or his Councell It was said by M r Attorney That Bailing was a grace and favour of a Court of Justice and that they may refuse to do it This was agreed to be true in divers cases as where the case doth appeare to be for fellony or other crimes expressed for that there is another way to discharge them in some convenient time by their triall yet in some of these cases the constant practise hath been anciently modernly to baile them 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 may be perpetually imprisoned without any remedy at all and consequently a man that had committed no offence be in worse case then a great Offender for the latter should have an ordinarie triall to discharge him the other should never be delivered It was further said that though the Statute of Westm. 1. cap. 15. as a Statute by way of provision did extend only to the Sheriff yet the recitall of that Statute touching the 4 cases wherein a man was not replevisable at the Common Law namely those that were committed for the death of a man by the command of the King or the Justices or for the Forrest did declare that the Justices could not baile such a one and that Replevisable and Bailable were Synonyma and all one and that Stamford a Judge of great authority doth expound it accordingly and that neither the Statute nor he sayes replevisable by the Sheriff but generally without restraint and that if the Chief Justice commits a man he is not to be enlarged by another Court as appeareth in the Register To this it was answered First that the recitall and body of the Statute relates only to the Sheriff as appeareth by the very words Secondly that replevisable is not restrained to the Sheriffs for that the words import no more that a man committed by the Chief Justice is bailable by the Court of Kings Bench. Thirdly that Stamford meaneth all of the Sheriff or at least he hath not sufficiently expressed that he intended the Justices Fourthly It was denyed that Replevisable and Bailable were the same for they differ in respect of the place where they are used Baile being in the Kings Court of Record Replevisable before the Sheriff and they are of severall natures Replevisable being a letting at large upon Sureties Bailing being when
what the cause is then in any other The fourth of these is in the time of Queen Mary It is Pasche 2. and 3. Phil. and Mar. Rot. 58. Overtons case Richard Overton was returned upon a habeas Corpus directed to the Sheriffs of London to have been committed to them and detained per mandatum prenobilium virâ—râ—m honorabilis Concilii Dominorum Regis Regina Qui committitur Marescallo c. immediate traditur in ballium In answer to this President or by way of objection against the force of it hath been said that this Overton stood at that time indicted of Treason It is true he was so indeed but that appeares in another Roll that hath no reference to the Return as the Return hath no reference to that Roll. Yet they that object this against the force of this President say That because he was indicted of Treason therefore though he was committed by the command of the Lords of the Councell without cause shewed yet he was bailable for the Treason and upon that was here bailed Then which Objection nothing can be or is more contrarie to Law or common Reason It is most contrarie to Law for that cleerly every Return is to be adjudged by the Court out of the body of the Writ it self not by any other collaterall or forrain Record whatsoever Therefore the matter of Indictment here cannot in Law be cause of the bailing of the Prisoner And it is so adverse to all common Reason that if the objection be admitted it must of necessity follow that whosoever shall be committed by the King or the Privie Councell without cause shewed and be not indicted of Treason or some other offence may not be inlarged by reason of the supposition of matter of State But that whosoever is so committed and withall stands so indicted though in another Record may be inlarged whatsoever the matter of State be for which he was committed The absurdity of which assertion needs not a word for further confutation as if any of the Gent. in the last Judgement ought to have been the sooner delivered if he had been also indicted of Treason Certainly if so Traitours and Fellons had the highest priviledges of personall Liberty and that above all other Subjects of the Kingdome The first of this first kind is of Queen Marie's time also It is Pasche 4. 5. P. M. Rot. 45. the Case of Edward Newport He was brought into the Kings Bench by habeas Corpus out of the Tower of London cum causa viz. Quod commissus fuit per mandatum Conciliorum Dominae Reginae Qui committitur Marr. c. et immediate traditur in ballium To this the like kind of answer hath been made as in that other Case of Overton next before cited They say that in another Roll of another Terme of the same year it appears he was in question for suspicion of Coyning And it is true he was so But the Return and this Commitment mentioned in it have no reference to any such offence nor hath the Bailment of him relation to any thing but to the absolute Commitment by the Privie Councell So that the answer to the like objection made against Overton's Case satisfies this also The sixth of these is of Q. Elizabeth's dayes It is Mich. 9. Eliz Rot. 35. the Case of Thomas Lawrence This Lawrence came in by habeas Corpus returned by the Sheriffs of London to be detained in prison per mandatum Concilii Dominae Reginae Qui committitur Marescallo c. super hoc traditur in ballium An Objection hath been invented against this also It hath been said that this man was pardoned and indeed it appeares so in the margent of the Roll where the word pardonatur is entred But cleerly his enlargement by Baile was upon the Bodie of the Return only unto which that Note of Pardon in the Margent 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 pardoned The seventh of these is in the same yeare and of Easter Terme following It is Pasche 9. Eliz. Rot. 68. Robert Constable's Case He was brought by habeas Corpus out of the Tower and in the Return it appeared he was committed per mandatum privati Concilii dict Dominae Reginae Qui committitur Marr. postea isto eodem Termino traditur in ballium The like Objection hath been made to this as to that before of Lawrence but the self same Answer cleerly satisfies for both of them The eighth is of the same Queens time in Pasche 20. Eliz. Rot. 72. Iohn Browning's Case This Browning came by habeas Corpus out of the Tower whether he had been committed was returned to have been committed per privatum Concilium Dominae Reginae Qui committitur Maresc Et postea isto eodem Termino traditur in ballium To this it hath been said That it was done at the chief Justice Wraye's Chamber and not in Court and thus the authoritie of the President hath been lessened and sleighted If it had been at his Chamber it would have proved at least thus much That S r Christopher Wraye then chief Justice of the King's Bench being a grave learned and upright Judge knowing the Law to be so did baile this Browning and so enlarge him And even so farre were the President of value enough But it is plain that though the habeas Corpus were returnable indeed as it appeares in the Record it self at his Chamber in Serjeant's Inne yet he only committed him to the Kings Bench presently and referred the consideration of enlarging him to the Court who afterwards did it For the Record saith Et postea isto eodem Termino traditur in ballium which cannot be intended of an enlargement at the chief Justice his Chamber The ninth of this first kind is in Hill 40. Eliz. Rot. 62. Edward Harecourts Case He was imprisoned in the Gate-house and that per Dominos de private Concilio Dominae Reginae pro certis causis eos moventibus et ei ignotis and upon his habeas Corpus was returned to be therefore only detained Qui committitur Marr. c. Et postea isto eodem Termino traditur in ballium To this never any colour of answer hath been yet offered The tenth is Catesbies Case in the Vacation after Hillary Terme 43. E. Rot. 37. Robert Castesby was committed to the Fleet per warrant diversorum prenobilium virorum de private Concilio Dominae Reginae He was brought before Justice Fennor one of the Judges of the Kings Bench by habeas Corpus at Winchester House in Southwark commissus fuit Marr. per praesat Edw. Fennor statim traditur in ballium The eleventh is Richard Beckwith's Case which was in Hillary 12. of King Iames R. 153. He was returned upon his habeas Corpus to have
Freeman relaxavit securitatem pacis versus eundem Thoman Yow dictusque Robertus Carvell recognovit se fore satisfact de debitis Ac Iohannes Hubbard General Attorn Domini Regis nomine ipsius Regis relaxavit mandatum Domini Regis Et pro suspicione seloniae praedict traditur in ballium Simon Little de London Taylor et Iohannem Ash de London Skinner usque octab Michaelis ubicunque c. ad quem diem comparuit Et Robertus Throgmorton miles unius custod pacis praedict committitur warrant retorn quod nul indicaverit de aliquibus feloniis sive transgressionibus versus praefatum Thomam Yow coram eo sociis suis direct per sacramentum 12 proborum legalium hominum de visu de Coventrey praedict de gestu fama praedict Thom. diligent inquisitione fecerunt nihil de co praeter bonum coram eo sociis suis est compertum sed est de bono gestu fama Ideo concessum quod praedictus Thomas Yow eat sine die c. Sine die Anno 9. H. 7. et per scruet ejusdem Rot. 13. Humfridus Botche nuper de Canterbrigg in comitatu Cantabrgiensis Scholar per Robertum Willoughby Dom. Brook mil. Senescal hospitii Domini Regis ac Iohannem Digby mil. Marescall cur Maresc hospitii praedict virtute brevis Domini Regis de Habeas Corpus ad sectam ipsius Regis ad standum recte c. ad sectam pacis ut legatur eis inde direct coram Rege duct cum causa viz. Quod idem Humfridus Botche commissus fuit gaol Marrescalli hospitii praedict per mandatum Domini Regis Et haec est causa non alia quod idem Humfridus in prisona praedicta detinetur Qui committitur postea Pasche sequen Dominus Rex relaxavit mandatum suum Capital Justitiar per Thomam Lovell mil. ostensus et pro ult praed tenetur praedict alibi c. Marr. ball De Termino sancti Trinitatis anno 39. Elizabethae Reginae per com to ejusdem 118. le Gatehouse Lawrentius Brâ—om per Hugonem Parlor custod prisonae Dominae Reginae de le Gatehouse virtute brevis Dominae Reginae de habeas Corpus ad subjiciendum ei inde direct c. coram Domina Regina apud Westm. duct cum causa viz. quod praedictus Lawrentius Broom in arcta custodia sua remansit per mandatum Dominorum de Concilio Sereniâ—â—imae Dominae Reginae pro certis causis eos moventibus Qui committitur Marr. postea isto eodem Termino traditus fuit in ballium prout patet per scruet finium istius Termini Marr. â—all Per scruet finium Termini praedicti anno 39. Eliz. Reginae Essex Lawrentius Broom de parva Bradowe in comitatu praedict husbandman traditur in ballium ad subjiciendum c. per mandatum privati Concilii Dominae Reginae super habeas Corpus Radulpho Mayall de Hatfield Penell praedict Henr. Vndall de eadem gener Willielmo Ecclesden de Westm. Bricklayer Richardo Morgan de Westm. Labourer uterque pleg sub poena 40 l. sub poena 100 l. Marr. pro suspitione proditionis cum Iohanne Smith mil. Usque octab Michaelis De Termino sancti Michaelis anno 40 Elizabethae Reginae et per com ro ejusdem rot 37. Midd. sci Thomas Wenden per Hugonem Parlor generos custod prisonae Dominae Reginae de le Gatehouse virtute brevis Dominae Reginae de habeas Corpus ad subjiciendum c. ei inde direct coram Domina Regina apud Westm. duct cum causa viz. Quod 18. die Junii anno Regni Dominae Elizabethae nunc Reginae Angliae 38. Corpus infra nominati Thâ— Wenden extra curiaÌ„ ejusdem Dominae Reginae Angliae coram ipsa Dom. Concilio suo in Camera stellata prisonae Dominae Reginae de le Gate-house sub custodia sua pro certis causis eisdem Dominae Reginae concilio suo moventibus ei ignotis commissus fuit salvo custodiend donec aliud inde habuerit praecept Et haec est causa detentionis praedict Thomae in prisona praedict Qui committitur Marr. c. Et postea isto eodem Termino traditur in ballium prout patet per scruet finium istius Termini Marr. ball Per scruet finium de Termino sancti Michaelis anno 39. 40. Elizabethae Reginae Thom. Wenden de Aldham in comitatu Essex Yeoman traditur in ballium super habeas Corpus ad subjiciendum recipiendum Mar. Iohannes Wenden de Colmewalâ—â—e in comitatu praedict yeoman Will. Beriffe de Aldham praedict in comitatu praedict gen Radulpho Northen de Aldham in comitatu praedict yeoman quilibet praedict sub poena 200. Marcis pars sub poena 200 l. Usque octab Hillar Idem Thom Wenden traditus fuit in ballium per consens Dominorum privati Concilii per Relationem Attorn Dominae Reginae general sub R. capt sub Terminum post craâ—tin Martini De Termino Hillarii anno Eliz. Reginae Rot. 89. Domina Regina mandavit praedilecto fideli Conciliario suo Iohannem Popham mil. capital Justic. Dominae Reginae ad placita coram ipsa Regina tenend assignat Ac dilectis fidelibus suis Iohanni Clench Francisco Gawdy Edwardo Fennor Justiciar ipsius Dominae Reginae ad placita praedict aut eorum alicui breve suum de privato Sigillo manu sua propria quod sequitur in haec verba By the Queen Trustie and welbeloved we greet you well Whereas William Constable late of London Knight Robert Vernon late of London Knight Henry Lincey late of London Knight Ellis Iones late of London gent. Charles Ogle late of London gent. Robert Pitchforke late of London gent. Iohn Wright late of London gent. Christopher Wright late of London gent. and Edmund Whitlocke late of London gent. for the late treasonable attempt of the late Erle of Essex have been committed to sundry places and prisons for their offences committed some in one sort some in another and stand amongst others indicted of high Treason for their severall offences Forasmuch as of our princely disposition we aâ—e graciously bent to extend our grace and favour unto them and that they shall be bailed We will and command you or any of you to bail the aboue named persons or any of them to appear before us in our Court commonly called the Kings Bench at such time and in such manner and form as to you or any of you shall seem meet And this shall be your sufficient warrant and discharge in that behalf To our trusty and welbeloved Counceller S r Iohn Popham Knight Chief Justice of our Pleas to be holden before us To our trusty and welbeloved Iohn Clench Francis Gawdy and Edward Fennor Justices of the same Pleas or any of them De Vacatione Hillâ—rii anno 43. Eliz. Reginae Gâ—tehouse Robertus Vernon nuper de London mil. Henricus Lincey nuper de London
all Lawes First generall reason The first generall reason is drawn à re ipsa from imprisonment ex visceribus causâ— be it close or other imprisonment which is divided into three parts First No man can be imprisoned at the will and pleasure of any but he that is bond and a villain for that imprisonment at will Et Tayler lâ—g haut et base are propria quarto modo to villaines Vide the writ de nativo habendo Secoâ—d 7. E. 3. fo 50. in the new print and 348 in the old 33. E. 3. tit Dom. 253. â—infant inpris â—itz Herbers fait un note de Ceo. But if Free-men of England might be imprisoned at the will and pleasure of the King by his Command then were they in worse case then bondmen and villaines for the Lord of a villain cannot command another to imprison his villain without cause as of disobedience or refusing toserve as is agreed in our books Third Imprisonment is accounted in Law civil death perdit domum familiam vicinos patriam his house his family his wife his children his neighbours his countrey and to live among wretched and wicked men If a man be threatned to be killed 39. H. 1. 65. c. he may avoid a Feoffment of lands gifts of goods c. so it is if he be threatned to be imprisoned he should do the like for that it is civill death Second generall reason The second generall reason is à minore ad majus minima poena corporalis est major qualibet pecuniaria But the King himself cannot impose a fyne upon any man but it must be done judicially by his Judges Bracton fol. 105. it is called duritia imprisonment 2 R. 3. 11. per Iusticiarios in Curia non per Regem in Camera and so it hath been resolved by all the Judges of England Third generall reason The third generall reason is drawn from the number and diversity of remedies which the Law giveth against imprisonment viz. breve de hoâ—ine replegiando de odio acia de habeas Corpus an appeal of imprisonment breve de manuâ—aptione The latter two of these are antiquated but the writ de odio acia is revived for that was given by the statute of Magna Charta ca. 26. and therefore though it were repealed by the statute of 28. E. 3. yet it is revived 42. E. 3. ca. 1. by which it is provided that all statutes made against Magna Charta are void Videw 2. ca. 29. Now the law would never have given so many remedies if the Free-men of England might be imprisoned at free will and pleasure Fourth generall reason The fourth generall reason is drawn from the extent and universality of the pretended power to imprison for it should extend not only to the Commons of the Realm and their posterity but also to the Nobles and their honourable Progenies to the Bishops and Clergie and their successours to all persons of what condition or sex or age soever to all Judges Officers c. whose attendance are necessary c. without exception of any person Fifth generall reason The fifth is drawn from the indefinitnesse of time the pretended power being limited to no time may be perpetuall during life Sixth generall reason The sixth à damno dedecore from the losse and dishonour of the English Nation in 2 respects First for their valour and prowesse so famous through the whole world Secondly for their industry for who indeavours to apply himself in any profession either of warre liberall science or merchandise c. 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 certain estâ—â—â— 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 slaves Seventh generall reason The seventh is drawn ab utili inutili for that it appeareth by the statute of 36. E. 3. That the execution of the statute of Magna Charta 5. E. 3. 25. E. 3. are adjudged in Parliament to be for the profit of the King and of his people Rot. Parl. â—6 E. 3. num 9. 20. And therefore this pretended power being against the profit of the King and of his people can be no more part of this prerogative Eighth generall reason 1. E. 2. de frâ—ngprison â—â—at unt pasche 18. E. 3. rot 33. coram Rege Bildestons case rot Parl. 28. H. 6. nu 16. Acts Apost cap. 25. v. the last The eighth generall reason is 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 the cause though he 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 the escapealbeit he be innocent is treason or felony Ninth generall reason The ninth generall reason is drawn from the authorities 16. H. 6. tit Monstrans â—efaits â—82 by the whole Court the King in his presence cannot command one to be arrested but an action of false imprisonment lieth against him that arresteth 22. H. 6. 46. Newton 1. H. 7. 4. the opinion of Markham Chief Justice to E 4. and the reason because the party hath no remedy Fortescue cap. 18. proprio ore nullus Regum usus est â— to commit any man c. 4 Eliz. Plowd Com. 236. the common 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 other are necessary to it Major hâ—reditas venit unicuique nostrum à jure legibus quam à parentibus 25. E. 1. ca. 2. Confirm Cart. all judgements given against Magna Charta are void Objections Upon Conference with the Lords the objections were made by the Kings Attorney First object That these resolutions of the House were incompatible with a Monarchy that must govern by the state Bracton Answ. Whereunto it was answered that nibiltam proprium est imperii quam legibus vivere And again Attribuat Râ—x legi quodlex attribuat c. viz. dominationem imperium quia sine lege non potest esse Rex It can be no more 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 viz. pro suspitione proditionis 2 object To blind those that are committed one cause must be pretended and another intended especially when it toucheth matter of state Answ. Whereunto it was answered that all dissimulation especially in the course of Justice was to be avoided and soundnesse of truth to take place and therefore David that was both a King and
a Prophet prayed to Almighty God against dissimulation in these words Lord send me a sound heart in thy statutes that I be not ashamed where found in the originall signifieth upright without dissimulation and shame followeth dissimulation when the truth is known Third object If a Rebell be attainted in Ireland and his children for fafety and for matter of state be kept in the Tower what shall be returned upon the Habeas Corpus Whereunto It was answered First that their imprisonment might be justified if they could not find good sureties for their good behaviour Secondly It was charity to find them meat drink and apparell that by the Attainder of their father had nothing Fourth object Though his Majesty expresseth no cause yet it must be intended that there was a just cause Answ. De non apparentibus de non existentibus eadem ratiâ— Fifth object First The King in stead of gold or silver may make money currant of any base metall Secondly He may make warres at his pleasure Thirdly He may pardon whom he will Fourthly He may make denizens as many as he will and these were said to be greater priviledges then this in question Answ. To the first it is denyed that the King may make money currant of base metal but it ought to be gold or silver Secondly It was answered admitting the King might do itâ— his losse and charge was more then of his Subjects both in the case of money and in the case of warre The pardon was private out of grace and no man had dammage or loss by it so of the making of dâ—nizâ—ns the King was only the looser viz. to have single custome where he had double Thirdly it was a non sequitur The King may do these things ergo he may imprison at will Your Lordships are advised by them that cannot be daunted by fear nor misled by affection reward or hope of preferment that is of the dead By ancient and many Acts of Parliament in the point besides Magna Charta which hath been 30 times confiâ—med and commanded to be put in execution wherein the Kings of England have thirty times given their Royall assent Secondly Judiciall Presidents per vividas rationes manifest and apparant reasons we in the house of Commons have upon great studie and serious consideration made a grand manifesto unanimously nullo contradicente concerning this great Liberty of the subject and have vindicated and recovered the body of this fundamentall Liberty both of your Lordships of our selves from shadowes which some time of the day are long sometimes short and sometimes long again and therefore no Judges are to be led by them Your Lordships are involved in the same danger and therefore ex congruo condigno we desire a conference to the end your Lordships might make the like declaration as we have done Commune periculum communerequirit Auxilium and thereupon take such further course as may secure your Lordships and us and all your and our posterities in enjoying of our ancient undoubted and fundamentall Liberties The Argument of Sergeant Bramston upon the Habeas corpus MAy it please your Lordship to hear the return read or shall I open it Chief Iustice Hide Let it be read M r. Keeling read the return being the same as that of Sir Thomas Darnell May it please your Lordship I shall humbly move upon this return in the behalf of Sir Iohn Henningham with whom I am of Councell it is his petition that he may be bailed from his imprisonment it was but in vain for me to move that to a Court of Law which by Law cannot be granted and therefore in that regard that upon his return it will be questioned whether as this return is made the Gent. may be bailed or not I shall humbly offer up to your Lordship the case and some reasons out of mine understanding arising out of the return it self to satisfie your Lordship that these Prisoners may and as their case is ought to be bailed by your Lordship The exception that I take to this return is as well to the matter and substance of the return as to the manner and legall form thereof the exceptions that I take to the matter is in severall respects That the return is too generall there is no sufficient cause shewn in speciall or in generall of the commitment of this Gentleman and as it is insufficient for the cause so also in the time of the first imprisonment for howsoever here doth appear a time upon the second warrant from the Lords of the Councell to detain him still in prison yet by the return no time can appear when he was first imprisoned though it be necessary it should be shewen and if that time appear not there is no cause your Lordship should remand him and consequently he is to be delivered Touching the matter of the return which is the cause of his imprisonment It is expressed to be Per speciale mandatum domini Regis This is too generall and uncertain for that it is not manifest what kind of command this was Touching the Legall form of the return it is not as it ought to be fully and positively the return of the Keeper himself onely but it comes with a significavit or prout that he was committed Per speciale mandatum domini Regis as appeareth by warrant from the Lords of the Councell not of the King himself and that is not good in legall form For the matter and substance of the return it is not good because there ought to be a cause of that imprisonment This writ is the means and the onely means that the subject hath in this and such like case to obtain his liberty there are other writs by which men are delivered from restraint as that de homine replegiando but extends not to this cause for it is particularly excepted in the body of the writ de manucaptione de cantione admittenda but they lie in other cases but the writ of Habeas corpus is the onely means the subject hath to obtain his liberty and the end of this writ is to return the cause of the imprisonment that it may be examined in this Court whether the parties ought to be discharged or not but that cannot be done upon this return for the cause of the imprisonment of this Gentleman at first is so farre from appearing particularly by it that their is no cause at all expressed in it This writ requires that the cause of the imprisonment should be returned if the cause be not specially certified by it yet should it at the last be shewn in generall that it may appear to the Judges of the Court and it must be expressed so farre as that it may appear to be none of those causes for which by the Law of the Kingdome the subject ought not to be imprisoned and it ought to be expressed that it was by presentment or indictment and not upon petition or suggestion
Parker detentus est sub custodia mea per mandatum 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 be a difference Trin. 2. Ed. 3. Rot. 46. in this Court in 21 Ed. 3. in the printed Book there is a piece of it The Abbot of Burey brings a prohibition out of this Court the Bishop of Norwich pleadeth in Barre of that Quod mihi testificatū 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 excomunication 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. ne◠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 Forrest and other Statutes were broken and they desire that for the good of himself 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 petitition 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 We find more printed Books as in Henry the sixth Minus 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 Statue to wit the death of a man the command of the King or his Justices or Forrest 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 appears 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. Winkfield was bailed here this Court bailed him for he was brought hither ad subjiciendum recipiendum and not to lie in prison God knows how long and if the Statute should be expounded otherwise there were no bailing men outlawed or breakers of prisons
to be concluded that is that as Fellony is a greater Cause then Surety of the peace so the matter whereupon the Kings command was grounded was greater then Fellony But in truth this kinde 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 it also might be of very high moment in matter of state and yet of farr less nature then Fellony All which shews that this president hath his full force also according as it was first used in Argument by the house of Commons To the third of these which is Binckes Case in the 35. H. 8. Rot. 33. the Objection was that there was a Cause expressed pro suspicione felloniae and though pro aliis causis illos moventibus were added in the Return yet because in the course of enumeration the general name of aliis comming after particulars includes things of less nature then the particuler doth therefore in this Case suspition of fellony being the first the other Causes afterwards generally mentioned must be intended of less nature for which the Prisoner was bailable because he was bailable for the greater which was suspition of fellony Hereunto it was replyed that the Argument of enumeration in these Cases is of no moment as is next before shewed and that although it were of any moment yet any Case though less then fellony might be of very great consequence in matter of state which is pretended usually upon generall Returns of command without cause shewed and it is most plain that the Court could not possible know the reasons why the Prisoner here was committed and yet they bailed him without looking further after any unknown thing under that title of Matter of state which might as well have been in this Case as in any other whatsoever To the 4. of these which is Overton's Case in 2. 3. Phet M. Rot. 58. and to the 5. which is Newports Case P. M. 4. 5. Rot. 45. onely these Objections were said over again by M r. Attorney which are mentioned in the Argument made out of presidents in behalf of the house of Commons at the first conference and in the same Argument are fully and clearly satisfied as they were in like manner now again To the 6. of these which was Lawrence his Case M. 9. Eliz. Rot 35. and the 7. which is Constables P. 9. Eliz. Rot. 68. the same Objections onely were likewise said over again by M r. Attorney that are mentioned and clearly and fully answered in the Argument made at the first conference out of presidents in behalf of the house of Commons the force of the Objection being onely that it appeared in the Margent of the Roll that the word Pardon was written but it is plain that the word there hath no reference at all to the reason why they were bailed nor could it have reference to the Cause why they were committed in regard the Cause why they were committed is utterly unknown and was not shewed To the 8. of these Presidents which was Brownings Case P. 20. Eliz. Rot. 72. It was said by M r. Attorney that he was bailed by a letter from the Lords of the Councel 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 he said he thought the Testimony of it was burnt among many other things of the Councel-table at the burning of the banquetting house To the 9. being Harecourts Case H. 40. Eliz. Rot. 62. the self same Objection was made by him but no warrant was shewed to maintain his Objection To the 10. which is Catesbyes Case in vacatione Hill 43. Eliz. he said that it was by direction of a privy Seal from the Queen and to that purpose he shewed the Seal of 43. Eliz. which is at large among the Transcripts of the Records concerning bails taken in Cases where the King or the Lords assented But it was replied that the privy seal made onely for some particular Gentlemen mentioned in it and for none other as indeed appears in it and then he said that it was likely that Catesby here had a privy seal in his behalf because those other had so which was all the force of his Objection To the 11. of these which is Beckwiths Case in Hill 12. Iacobi Rot. 153. he said that the Lords of the councel sent a letter to the Court of Kings-Bench to bail him And indeed he produced a letter which could not by any means be found when the Arguments were made at the first conference and this letter and a coppy of an obscure Report made by a young student which was brought to another purpose as is hereafter shewed were the onely things written of any kinde that M r. Attorney produced besides the particulars shewed by the house of Commons at the first conference To this it was replied that the letter was of no moment being onely a direction to the Chief Iustice and no Matter of record nor any way concerning the rest of the Iudges And besides either the Prisoner was bailable by the Law or not bailable if bailable by the Law then was he to be bailed without any such letter if not bailable by the Law then plainly the Judges could not have bailed him upon the letter without breach of their oath which is that they are to do Iustice according to the Law without having respect to any command whatsoever so that 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 the Judgment of the Court shews us To the 12. and last of these which is Sir Thomas Monsons Case in the 14. Iacobi Rot. 147. the same Objection was said over by him which was mentioned and clearly answered in the Argument and that one ground which is infallible That the Iudgment upon a return is to be made onely out of what appears in the body of the return it self was again insisted upon in this Case as it was also in most of the rest And indeed that alone which is most clear Law fully satisfies almost all kinds of Objections that have been made to any of these presidents which thus rightly understood are many ample Testimonies of the Judgments of the Court of Kings-Bench touching this great point in the several ages and raignes of the several Princes under which they fell After his Objections to the 12. and the Replies and satisfactions given to those Objections he came next to those wherein the Assent of the King and privy Councel appears to have been upon the enlargment but he made not to any of those any other kinde of Objections then such as are mentioned and clearly answered as they were now again in the Argument made at the first conference And for so much as concerns Letters of assent
be determined by any legal direction for it must needs be an hard case of contention when the Conquerour must sit down with irreparable losses as in this Case If the Subject prevails he gains Liberty but looseth the benefit of that State-Government by which a Monarchie may soon become an Anarchie or if the State prevails it gives absolute Soveraignty but looseth Subjects not their subjection for obedience we must yield though nothing be left us but prayers and tears but yet looseth the best part of them which is their affections whereby Soveraignty is established and the Crown formerly fixt on his Royal head between two such extreams there is not way to moderate but to finde a medium for the accommodation of the difference which is not for me to prescribe but onely to move your Lordships to whom I submit After M r. Serjeant his speech ended my Lord President said thus to the Gentlemen of the House of Commons That though at this free conference Liberty was given by the Lords to the Kings Councel to speak what they thought fit for his Majesty Yet M r. Serjeant Ashley had no Authority or direction from them to speak in that manner he hath done M r. NOYE his Argument the 16. of April 1628. HE offered an answer to the inconveniences presented by Mr. Attorney which were 4. in Number First where it was objected that it was inconvenent to express the cause for fear of divulging Arcana â—mperii for hereby all may be discovered and abundance of Traitors never brought to Justice To this that Learned Man answered That the Judges by the intention of the Law are the Kings Councel and the secrets may safely be committed to all or some of them who might advise whether they will bayl him and here is no danger to King or subjects for their Oath will not permit them to reveal the secrets of the King nor yet to detain the Subjects long if by Law he be to be bayled Secondly for that Objection of the Children of Odonell he laid this for a ground that the King can do no wrong but in Cases of extream necessity we must yield sometimes for the preservation of the whole State ubi unius damnum utilitate publica rependitus he said there was no trust in the Children of Traitours no wrong done if they did tabe facere or marcesere in Carcere It is the same Case of necessity as when to avoid the burning of a Town we are forced to pull down an honnest mans House or to compell a man to dwell by the Sea-side for defence or fortitude Yet the King cannot do wrong for potentia juris est non injura Ergo the Act of the King though to the wrong of another is by the Law made no wrong as if he commanded to be kept in Prison yet he is responsal for his wrong he quoted a book 42. 6. Ass Port. Thirdly the instance made of Westminster First he said there was a great difference between those 3. Mainprize Bail and Replevin The Statute saith a man cannot be repleiued Ergo not bayled non sequitur Maniprize under pain Bayl body for body no pain ever in Court to be declared Replevin neither by surety not bayl of Replevin never in Court the Statute saith a man cannot be Repleiued Ergo not bayled non sequitur Fourthly where it is said that bayl is ex gratia he answers that if the Prisoner comes to Habeas Corpus then it is not ex gratia Yet the Court may advise but mark the words ad subjiciendum recipiendum prout Curia consideraverit now it is impossible the Judges should do so if no cause be expressed for if they know no cause he may bring the 1. 2. 3. and fourth Habeas Corpus and so infinite till he finde himself a perpetual Prisoner so that no cause expressed is worse for a man then the greatest cause or Villany that can be imagined and thus far proceeded that learned Gentleman M r. GLANVILES Argument HE said that by favour of the House of Commons he had liberty to speak if opportunity were offered he applies his answer to one particuler of M r. Attorney who assigned to the King 4. great trusts 1. of War 2. Coins 3. Denizens 4. Pardons Is assented unto that the King is trusted with all these 4. legal Prerogatives but the Argument followeth not the King is trusted with many Prerogatives Ergo in this non sequitur non est sufficients enumer atiâ— partium he said he could answer these particulars with 2. rules whereof the first should wipe of the first and the second and the other the third and fourth The first rule in this there is no fear of trusting the King with any thing but the fear of ill Councel the King may easily there be trusted where ill Councel doth not ingage both the King and Subjects as it doth in matter of War and Coin If he miscarry in the Wars it is not alwayes pecuum Achiro but he smarts equally with the people If he abase his Coin he looseth more then any of his people Ergo he may safely be trusted with the flowers of the Crown War and Coin The second rule he began was this when the King is trusted to confer grace it is one thing but when he is trusted to infer an injury it is another matter The former power cannot by miscouncelling be brought to prejudice another The latter may if the King pardoneth a guilty Man he punisheth not a good subject if he denizen never â—o many strangers it is but damnum â—ine injuria we allow him a liberty to confer grace but not without cause to infer punishment and indeed he cannot do injury for if he command to do a Man wrong the command is void alter fit Author and the Actor becomes the wrong doer Therefore the King may be safely trusted with War Coin Denizens and Pardons but not with a power to imprison without expression of Cause or limmitation of time because as the Poet tells us Libertas potius auro The Answer of the Judges for matter of Fact upon the HABE AS CORPUS 21. April THe Chief Justice saith they are prepared to obey our Command but they desire to be advised by us whether they being sworn upon penalty of forseiting Body Lands and Goods into the Kings hands to give an account to him may without Warrant do this The Duke said he had acquainted the King with the business and for ought he knoweth he is well content therewith But for better assurance he hath sent his brother of Anglesey to know his pleasure Devonshire saith if a complaint be made by a mean Man against the greatest Officer in this place he is to give an account of his doings to this Honse Bishop of Lincoln saith this motion proceeded from him and so took it for clear that there was an appeal from the Chancery to a higher Court then the Kings-bench and in that Court hath ever