the partie could not be delivered To this the Answer is plain 1. No opinion is delivered in that book whether he were delivered or bailed or not 2. It appeares expresly that he was brought thither to be charged in an accusation of debt at another mans Suit and no desire of his own to be delivered or bailed and then if he were remanded it is no way materiall to the question in hand But that which is most relied upon is the opinion of Stamford in his book of the Pleas of the Crown lib. 2. ca. 18. fol. 72. 73. in his cap. of Mainprize where he reciteth the Statute of Westm. 1. cap. 15. and then saith thus By this Statute it appeareth that in 4 cases at the Common Law a man was not replevisable to wit those that were taken for the death of a man by command of the King or of his Justices or for the Forrest Thus farre he is most right Then he goeth on and saith As to the Command of the King that is understood of the command of his own mouth or his Councell which is incorporated unto him and speake with his mouth or otherwise every writ of Capias to take a man which is the Kings command would be as much And as to the command of the Justices that is meant their absolute command for if it be their ordinarie commandment he is replevisable by the Sheriff if it be not in some of the Cases prohibited by the Statute The answer that I give unto this is That Stamford hath said nothing whether a man may be committed without cause by the Kings command or whether the Judges ought not to baile him in such case but only that such a one is not replevisable which is agreed for that belongs to the Sheriff And because no man should think he meant any such thing he concludes his whole sentence touching the command of the King and his Justices That one committed by the Justices ordinarie command is replevisable by the Sheriff So either he meant all by the Sheriff or at least it appeares not that he meant that a man committed by the King or the Privie Councell without cause is not bailable by the Justices and then he hath given no opinion in this case What he would have said if he had been asked the question cannot be known neither doth it appeare by any thing he hath said that he meant any such thing as would be inferred out of him And now my Lords I have performed the command of the Commons and as I conceive shall leave their declaration of personall Liberty on ancient and undoubted truth fortified with 7 Acts of Parliament and not opposed by any Statute or authoritie of Law whatsoever The Objections of the King's Councell with the Answers made thereunto at the two Conferences touching the same matter IT was agreed by Master Attorney generall that the seven Statutes urged by the Commons were in force and that Magna Charta did extend most properly to the King But he said First that some of them are in generall words and therefore conclude nothing but are to be expounded by the Presidents and others that be more particular are applyed to the suggestions of Subjects and not to the Kings Command simplie of it self Hereunto was answered That the Statutes were as direct as could be which appeareth by the reading of them and that though some of them speak of suggestions of the Subject yet others do not and those that do are as effectuall for that they are in equall reason a commitment by Command of the King being of as great force when it moveth by a suggestion from a Subject as when the King takes notice of the cause himself the rather for that Kings seldome intermeddle with matters of this nature but by information from some of their Subjects Secondly M r Attorney objected that per legem terrae in Magna Charta which is the foundation of this Question cannot be understood for processe of the Law and originall Writs for that in all Criminall proceedings no originall Writ is used at all but every Constable may arrest either for fellony or for breach of the peace or to prevent a breach of the peace without processe or originall Writ and it were hard the King should not have the power of a Constable the Statutes cited by the Commons make processe of the Law and Writ originall to be all one The answer of the Commons to this Objection was That they do not intend originall Writs only by the Law of the Land but all other legall processe which comprehends the whole proceedings of Law upon Cause other then the triall by Jurie Iudicium parium unto which it is opposed Thus much is imported ex vi termini out of the word processe and by the true acceptation thereof in the Statutes which have been urged by the Commons to maintain their Declaration and most especially in the Statute 25. E. 3. cap. 4. where it appeareth that a man ought to be brought into answer by the course of the Law having former mention made of processe made by originall Writ And in 28. E. 3. cap. 3. by the course of the Law is rendered by due processe of the Law and 36. E. 3. Rot. Parl. num 20. the Petition of the Commons saith That no man ought to be imprisoned by speciall Command without Indictment or other due processe to be made by the Law 37. E. 3. cap. 18. calleth the same thing Processe of the Law 42. E. 3. cap. 3. stileth it by due processe and Writ originall where the conjunctive must be taken for the disjunctive which change is ordinary in the exposition of the Statutes and Deeds to avoid inconvenience to make it stand with the rest and with reason And it may be collected that by the Law of the Land in Magna Charta by the Course of the Law in 25. E. 3. by due processe of the Law in 28. E. 3. other due processe to be made by the Law in 36. E. 3. processe of the Law 37. E. 3. and by due processe and originall Writ in 42. E. 3. are meant one and the same thing the latter of these Statutes referring alwayes to the former and that all of them import any due and regular proceeding of Law upon a Cause other then the triall by Jury And this doth appeare in Coke 10. 74. in the case of the Marshalsey and Coke 11. 99. Iames Bagg's case where it is understood of giving Jurisdiction by Charter or prescription which is the ground of a proceeding by course of Law and in Selden's Notes on Fortescue fol. 29. where it is expounded for Law wager which is likewise a triall at Law by the oath of the partie differing from that by Jurie And it doth truly comprehend these and all other regular proceedings in Law upon Cause which gives authoritie to the Constable to arrest upon Cause And if this should not be the true exposition of these
grand Councell and that they there find suretie to pursue their suggestions and incurre the same paine that the other should have had if he were attainted in case that their suggestions be found evil and that then processe of the Law be made against them without being taken and imprisoned against the forme of the said Charter and other Statutes Here the Law of the Land in the grand Charter is explained to be without processe of the Law 42. E. 3. ca. 3. At the request of the Commons by their Petitions put forth in this Parliament to eschew mischiefs and damage done to divers of his Commons by false accusers which oftentimes have made their accusation more for revenge and singular benefit then for the profit of the King or of his people which accused persons some have been taken and sometimes caused to come before the Kings Councell by writ and otherwise upoâ— grievous paine against the Law It is assented and accorded for the good governance of the Commons that no man be put to answer without presentment before Justices or matter of Record or by due processe or writ originall according to the old Law of the Land And if any thing henceforth be done to the contrary it shall be void in Law and holden for errour But this is better in the Parliament Roll where the Petition and Answer which make the Act are set down at large 42. E. 3. Rot. Parliament num 12. The Petition Because that many of the Commons are hurt and destroyed by false accusers who make their accusations more for their revenge and particular gaine then for the profit of the King or his people and those that are accused by them some have been taken and others have been made to come before the Kings Councell by writ or other Commandment of the King upon grievous paines contrary to the Law That it would please our Lord the King and his good Councell for the just government of his people to ordain that if hereafter any accuser propose any matter for the profit of the King that the same matter be sent to the Justices of the one Bench or the other or the affaires to be enquired and determined according to the Law And if it concern the accuser or partie that he take his suit at the Common Law and that no man be put to answer without presentment before Justices or matter of Record and by due processe originall writ according to the ancient Law of the Land And if any thing henceforward be done to the contrarie that it be void in Law and held for errour Here by due processe and originall writ according to the Law of the Land is meant the same thing as per legem terrae in Magna Charta and the abuse was they were put to answer by the commandment of the King The Kings Answer is thus Because that this article is an article of the Grand Charter the King wills that this be done as the Petition doth demand By this it appeareth that per legem terrae in Magna Charta is meant by due processe of the Law Thus your Lordships have heard Acts of Parliament in the point But the Statute of Westm. the 1. ca. 15. is urged to disprove this opinion where it is expresly said That a man is not replevisable who is committed by the command of the King without any cause shewn which is therefore sufficient to commit a man to prison And because the strength of the Argument may appeares and the answer be better understood I shall read the words of the Statute which is thus And for as much as Sheriffs and others have taken and kept in prison such as were replevisable and have let out by plevin such as were not replevisable because they would gaine of the one partie and grieve the other And forasmuch as before this time it was not certainly determined what persons were replevisable and what not but only those that were taken for the death of a man or by Commandment of the King or of his Justices or for the Forrest It is provided and by the King commanded that such prisoners as were before outlawed and they which have abjured the Realme Provors and such as be taken with the manner and those which have broken the Kings prison Thieves openly defamed and known and such as be appealed by Provors so long as the Provor be living if they be not of good name and such as be taken for burning of houses felloniously done or for false money or for counterfeiting the Kings Seal or persons excommunicated taken at the request of the Bishops or for manifest offences or for Treason touching the King himself shall be in no case replevisable by the common writ or without writ But such as be indicted of larceny by inquests taken before Sheriffs or Bailiffs by their office or for light suspicion or for petty-larceny that amounteth not to above the value of 12 pence if they were not guilty of some other larceny aforetime or guilty of receipt of fellons or of commandment or force or of aid in felony done or guilty of some other trespasse for which one ought not to loose life or member and a man appealed by a Provor after the death of a Provor if he be no common thief or defamed shall from henceforth be let out by sufficient suretie whereof the Sheriff will be answerable and that without giving ought of their goods And if the Sheriff or any other let any go at large by suretie that is not replevisable if he be Sheriff or Constable or any Bailiffe of fee which hath keeping of prisoners and thereof be attainted he shall loose his â—ee and office for ever And if the under-Sheriff Constable or Bailiffe of such as have fee for keeping of prisons do it contrarie to the will of his Lord or any other Bailiffe being not of fee they shall have three yeares imprisonment and make Fine at the Kings pleasure And if any hold prisoners replevisable after they have offered sufficient sureties he shall pay a grievous amercement to the King And if he take any reward for the deliverance of such he shall pay double to the prisoner and also shall pay a grievous amercement to the King The Answer It must be acknowledged that a man taken by the Commandment of the King is not replevisable for so are the expresse words of this Statute But this maketh nothing against the Declaration of the House of Commons for they say not that the Sheriff may replevy such a man by sureties scilicet Manucaptores but that he is bailable by the Kings Court of Justice For the better understanding whereof it is to be known that there is a difference betwixt replevisable which is alwayes by the Sheriff upon on pledges or sureties given and bailable which is by Court of Record where the prisoner is delivered to his Baile and they are his Gaolers and may imprison him and shall suffer for him bodie
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
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
Lords viam faustam both to his Majesty and your Lordships and to our selves for my Lords this is the greatest bond that any Subject can have in Parliament verbum Regis that is an high point of Honour but this shall be done by the Lords and Commons and assented to by the King in Parliament This is the greatest obligation of all and this is for the Kings Honour and our safety And therefore my Lords we have drawn a form of a Petition desiring your Lordships to concur with us herein for we come with an unanimous consent of all the House of Commons for there is great reason your Lordships should do so because that your Lordships be involved in the same condition commune periculum and so I have done with the first part And now I shall be bolde to read that which we have so agreed on I shall desire your Lordships that I may read it The Petition of Right to the KINGS most Excellent Majesty HUmbly sheweth unto our Soveraign Lord the King the Lords spiritual temporal and Commons in this present Parliament assembled That whereas it is declared and enacted by a Statute made in the time of the Raign of King Edw. 1. commonly called Statutum de tallagio non concedendo That no Tollage or aid should be laid or levied by the King or his Heirs in this Realm without the good will and assent of the Arch-Bishop Earles Barons Knights Burgesses and others the freemen of the Cominalty of this Realm And by Authority of Parliament holden in the 13. year of the Raign of King Ed. 3. it is declared and enacted that from thence-forth no Persons should be compelled to make any loan to the King against his will because such loans were against reason and the Franchises of the Land And by other Laws of this Realm it is provided that none should be charged by any charge or imposition called a Benevolence nor by such like charge by which the Statutes before mentioned and other the good Laws and Statutes of this Realm your Subjects have inherited this freedom that they should not be compelled to Contribute to any Tax Tollage Aid or other like charge not set by common consent in Parliament Yet nevertheless of late divers Commissions directed to sundry Commissioners in several Countreys with instructions have issued by means whereof your people have been in divers parts assembled and required to lend certain summes of money to your Majesty And many of them upon refusal so to do have had an unlawfull Oath administred unto them not warrantable by the Laws and Statutes of this Realm and have been constrained to become bound to make appearance and give attendance before your privy Councel and in other places And others of them have been therefore imprisoned confined and sundry other wayes molested and disquieted and divers other charges have been laid and levied upon your people in several Countreys alleadging some superior by Lord Lieutenants Deputy Lieutenants Commissioners for Musters Justices of Peace and others by command or direction against the Laws and free Customes of the Realm from your Majestie or your privy Councel And where also by the Statute called the great Charter of the Liberties of England It is declared and enacted That no Freeman may be taken nor â—mprisoned nor be disseised of his Freehold nor Liberties nor his free Customes nor be outlawed or exiled or in any manner destroyed but by the Lawfull judgement of his Peers or by the Law of the Land And in the 28. year of the Raign of King Edw. 3. it was declared and enacted by Authority of Parliament that no man of what Estate or condition he be shall put out of his Land or Tenement nor taken nor imprisoned nor disinherited nor put to death without being brought to answer by due process of Law Nevertheless against the Tenour of the said Statutes and other the good Laws and Statutes of your Realm to that end provided divers of your Subjects have of late been imprisoned without any cause shewed and when for their deliverance they were brought before your Justices by your Majesties Writ of Habeas Corpus there to undergo and receive as the Court should order and the Keepers commanded to certefie the causes of their detainer no cause was certified but that they were detained by your Majesties special command signified by the Lords of your privy Councel and yet were returned back to several Prisons without being charged with any thing the which they might make answer to and to Law And whereas of late great Companies of Souldiers and Marriners have been dispersed into divers Countreys of the Realm and the Inhabitants against their wills have been compelled to receive them into their houses and there to suffer them to sojourn against the Laws and Customes of this Realm and to the great grievance and vexation of the people And whereas also by Authority of Parliament in the 25. E. 3. it is declared and enacted that no man shall be fore-judged of Life or Limb against the form of the great Charter and the Law of the Land and by the said great Charter and other the Laws and Statutes of this your Realm no man ought to be adjudged to death but by the Laws established in this your Realm Nevertheless of late times divers Commissions under your Majesties great Seal have issued forth by which certain Persons have been assigned and appointed Commissioners with power and Authority to proceed within the Land according to the Justice of Martial Law against such Souldiers or Marriners or other dissolute Persons joyning with them as should commit any Murther Robbery Fellony Mutiny or other outrage or misdemeanour whatsoever and by such summary course and order as is agreeable to Martial Law and is used in Armies in time of War to proceed to the trial and condemnation of such offenders and them to cause to be executed and put to death according to the Law Martial By pretext whereof some of your Majesties Subjects have been by some of the said Commissioners put to death when and where if by the Laws and Statutes of the Land they had deserved death by the same Laws and Statutes also they might and by none other ought to have been adjudged and executed And also sundry grievous offenders by colour thereof claiming an exemption have escaped the punishment due to them by the Laws and Statutes of this your Realm By reason whereof divers of your Officers and Ministers of Justice have unjustly refused or forbore to proceed against such offenders according to the same Laws and Statutes upon pretence that the said offenders were punishable onely by Martial Law and by Authority of such Commissions as aforesaid which Commissions and all other of like nature are directly contrary to the said Laws and Statutes of this your Realm They do therefore humbly pray your most Excellent Majesty that no man hereafter be compelled to make or yield any Guift Loan Benevolence Tax or such
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-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
no Priviledge lieth against the King in point of his duties Sir Francis Seymour I desire it may first be debated Whether this case doth concern the King or no for I conceive these Customers have not made good that there was any right here is onely art used to entitle the King I conceive it a high offence for any man to lay the scandal upon the King for every project Mr. Glanveil Here is a cunning Project in the Exchequer to entitle the King a meer cunning Project and an offence of a high nature to shelter their projects under the Command of the Crown Secretarie Cook The point in question is not the right of the Subject but the right of Parliament Priviledge and that in the case of Mr. Rolles and this is onely now in question Sir Iohn Strangewaies I know no reason why we should draw a question upon our selves which we need not especially between the King and us I conceive it plain these Customers took the goods in their own right not in the Kings In this Priviledge is plainly broken wherein it is easily determined Mr. Banks In this case there is no interposing of the Kings Right and the King this Parliament hath declared as much That the Courts at Westminster do grant 12 days priviledge to any man to inform his Councel much more the Court of Parliament are to have their Priviledge The Kings Command cannot extend to authorize any man to break the Priviledges no more than it will warrant an entrie upon any mans Land without process of Law Mr. Soliciter If the King have no Right how can he make a Lease then this pretended interest of the Customers must needs be void and therefore the goods must not be taken on their own right but in the right of the King Mr. Selden If there were any right the pretended right were in the Subject First whether Priviledge in goods Secondly whether the right were in the Customers onely Thirdly whether priviledge against the King 1. If the Lords have no priviledge in Parliaments for their goods then have they no priviledge at all for they are priviledged in their persons out of Parliament 2. For the point of interest it is plain no kind of Covenant can alter the interest and questionless had the cause in the Exchequer appeared to the Barons as it doth to us they would never have proceeded as they did 3. If our goods may be seized into the Exchequer be it right or wrong we were then as good have nothing Sir Nath. Ritch It was recorded the last Session and citeth other presidents in this House that a servant of a Member in Parliament ought to have priviledge in his goods Mr. Noy saith that these Commissioners had neither Commission nor Command to seize Therefore without doubt we may proceed safely to the other question That the priviledge is broken by the Customers without relation to any Commission or Command of the King Secretarie Cook saith It is in the Commission to seize but the Commission being read it is not found to be there Chancellor of the Dutchie saith Mr. Dawes mentioned that he seized these goods by virtue of a Commission and other Warrants remaining in the hands of Sir Iohn Elliot that therefore these Warrants may be seen whether there be no command to seize these goods Sir Nathaniel Ritch This days debate much joyeth me specially the motion made by Mr. Noy whereby it is plain we have a way open to go to this question without relation to the Kings Commission or Command and desire it in respect there appears nothing before us to incumber the question Chancellor of the Dutchie desires again these Warrants may be lookt into before we go to the question Mr. Kirton In respect this Honorable Gentleman presseth this so far that it may appear with what judgement this House hath proceeded Mr. Glanviel I consent these Warrants be sent for and read but withall if any thing arise that may produce any thing of ill consequence let it be considered from whence it doth come The Privie Councellers are contented with this Motion The Warrants being sent for and read it is plain there is no Warrant to seize Mr. Kirton If now there be any thing of doubt I desire those Honorable persons may make their objections Chancellor of the Dutchie I rejoyce when I can go to the Court able to justifie your proceedings I confess I see nothing now but that we may safely proceed to the Question Mr. Secretarie Cook saith as much Mr. Hackwell argueth against Priviledge in time of Prorogation Mr. Noy saith he had no doubt but that Priviledge was in force in time of Prorogation untill he heard this Argument of Prorogation of Mr. Hackwell and saith that he hath nothing from him yet that doth alter his opinion and citeth a cause wherein the Lords House hath this verie Prorogation adjudged the Priviledge Mr. Hackwell saith he is glad to hear it is so and he is now of the same opinion Decided by Question That Mr. Rolles ought to have Priviledge of Parliament for his goods seised 30 Octob. 5 Iac. and all sithence This Committee is adjourned untill Munday and the Customers to attend The Protestation of the COMMONS in Parliament on Munday 2. Mar. 1628. 1. WHosoever shall bring in an Innovation in Religion or by favour or countenance seek to extend or introduce Poperie or Arminianisme or other Opinion differing from the true and orthodox profession of our Church shall be reputed a Capital enemie to this Kingdom and Common-wealth 2. Whosoever shall counsel or advise the taking or leavying of the Subsedies of Tonage and Poundage not being granted by Parliament or shall be an Actor or an Instrument therein shall likewise be reputed an Innovator in the Government and a Capital enemie to the Kingdom and Common-wealth 3. If any Merchant or other person whatsoever shall voluntarily yield or pay the said Subsedie of Tonnage or Poundage not being granted by Parliament he shall likewise be reputed a Betrayer of the Liberties of England and an enemie to the same THE KINGS SPEECH in the House of PARLIAMENT Mar. 10. 1628. to Dissolve it My LORDS I Never came here upon so unpleasing occasion it being for the Dissolving of a PARLIAMENT therefore many may wonder why I did not rather choose to do this by my Commission it being the general Maxim of Kings to lay harsh commands by their Ministers themselves onely executing pleasing things But considering that Justice is as well in Commanding of Virtue as Punishing of Vice I thought it necessarie to come hâ—râ— to day to declare to you my Lords and all the world That it was onely the disobedient carriage of the Lower House that hath caused this Dissolution at this time and that you My Lords are so far from being causers of it that I have as much comfort in your Obedience manifested by all your carriage towards me as I have cause to distaste their proceedings Yet that
Assembly so that you are secure not onely from wilfull and pregnant errours but from doubt of sinister interpretation My Lord the King is as an Angel of God of a quick of a noble and just apprehension he straines not at gnats he will easily distinguish between a vapour and a fogg between a mist of â—rrour and a cloud of evill right he knowes if the heart be right Out of the abundance of the heart the mouth speakes You proceed to a survey of the lustre of this great and glorious Assemblie and in that as in a curious Crystall you observe the true happinesse which we all here enjoy You have distributed and divided aright and whosoever sees it otherwise hath an evill eye or a false glasse We have enjoyed it long through the happy meanes of gracious and good Princes and the way to enjoy it still is to know and heartily to acknowledge it and that God hath not done so to any other Nation It is a prime cause or meanes of this our happinesse You mention the forme of Government under which we live a Monarchie and the best of Monarchies where Sovereignty is hereditarie no Inter-Regnum nor competition for a Crown Descent and Succession are all one The Spirit of God by the mouth of the wisest of Kings long since proclaimed this happinesse Blessed art thou O Land where thy King is the son of Nobles The frames of other States are subject some to inconstant Levitie some to Faction some to Emulation and Ambition and all to manifold Distempers in which the People go to wrack The Monarchie is most naturall and in it Unity is the best cement of all government principally in respect of the unity of the Head which commands the rest And therefore other States when they have tryed a while doe for the most part resolve into this as into the best for Peace for Strength and for Continuance But formes of other governments though never so exact move not of themselves but are moved of their governours And therefore our Monarchie as you have truly said this glorious Assemblie the lively image and representation of our Monarchie is made happy and perfect by the Royall Presence that sits here in his highest Royal Throne the Throne of the Law-giver glorious in it selfe glorious by those happy Lawes and Oracles which have issued from it and most glorious by them that sit on it his Majestie and his Royall Progenitours incomparable Kings that with so much honour have swayed the Sceptre of this Kingdome so many successions of Ages In the next place after the Throne of Majestie you look into the Chaire of Doctrine the reverend Prelates and upon the state of Religion their proper charge This is the blessing of all blessings the priviledge and assurance that secures us of all the rest that as our Religion is most sincere and orthodoxe so our Clergie is eminent both for purity of Doctrine and integritie of Life our Priests are clothed with righteousnesse and their lips preserve knowledge and therefore God's Saints may and doe sing with joyfulnesse I must joyn with you in attributing this transcendent blessing to us as in the first place to God's goodnesse so in the second to his Majestie 's piety who following the steps of his ever-blessed Father is carefull that all the Lamps of the Church may be furnished with Oyle and especially those which are set on golden Candle-sticks with the purest and best oyle The Schools also and nurceries of Learning never so replenished especially with Divinity as in this last Age as they all shew his Majestie 's Piety so are they infallible Arguments of his Constancy The triall which you call the fierie triall undergone by his Majestie in the place of danger and again the power and policie of Rome and Spaine hath approved his resolution inimitable and his own remarkable example in his closet and his chamber his strict over-sight of and command to his Houshold servants and his charge to his Bishops and Judges his Edicts his Proclamations and Commissions and the like for the execution of the Lawes and his general care to preserve the fountain pure both from Schisme and Superstition are faire fruits and effects of a pious and zealous resolution From the chaire of Doctrine you turn to the state of Honour unto the Nobles and Barons of England These are Robur belli who for the service of the King and Kingdome are to make good with their Swords what the Church-men must hallow and blesse by their Prayers And therefore as the Prelates are the great Lights of the Church so the Nobility are the Starres of the State and you know that the starres have fought and fought powerfully against the enemies of God From the state of Honour you come to the state of Justice and to the twelve Lyons under Solomon's Throne the Iudges and Sages of the Law and as their peculiar charge intrusted to them by our Sovereigne the Lawes of the Kingdome Lawes undoubtedly fitted to the constitution of this people for Leges Angliae and Consuetudines Angliae are Synonyma and Confuetudo est alter a natura so as besides the justnesse and rightnesse of the Lawes they are become naturall to our people and that is one of the powerfullest meanes which begetteth obedience and such Lawes in the mouthes of learned and upright Judges are like waters in a pure chanel which the fairer it runs the clearer they run and produce that whereof Solomon speaks Prov. 29. 2. When the righteous are in authority the People rejoyce From the Law you passe to the Knights Citizens and Burgesses and the third Estate who represent the Commons of England in whom the Scripture is verified In the multitude of People is the Kings honour and therefore you may be sure that distance of place and order breeds no distance in affection for wise Kings everlay their honour next to their hearts Kings are Pastores populi and the Shepherds care is nothing lesse to the furthest then to the next part of his Flock and it is asmuch towards the least of his Lambs as towards the greatest Cattel And as in the Natural bodie no member is so remote but it is still within the care of the head so in this great Politick bodie of the Kingdome no ranck or order of People so low is at such distance from the Throne but it dayly feeles the influence and benefit of the Kings care and protection And to say the truth in a well-governed Kingdome the superiour rancks of Nobles of Judges and of Magistrates are not ordained for themselves but as conduits for the Kings justice protection and goodnesse to the lower rancks of his People And as the People are so its just cause they should be constant to the Poles of Love and Loyalty And thus having perused both Houses by divided parts joyn them together and in that juncture you believe truly and materially that the greatest denyal of their joynt requests is The King
to better Judgements S r. Thomas VVentworth's speech March 22. 1627. MAy this dayes resolution be as happy as I conceive the Proposition which now moves me to rise to be seasonable and necessary for which we shall either look upon the King or his people It did never more behove this great Physician the Parliament to affect a true consent amongst the parts then now This debate carries with it a double aspect towards the Sovereigne towards the Subject though both be innocent yet both are injured both to be cured In the representation of Injuries I shall crave your attention in the Cure I shall beseech your equall cares and better judgements Surely in the greatest humility I speak it these illegall wayes are punishments and marks of indignation the raising of Levies strengthened by Commission with unheard of instructions the billetting of Souldiers by the Lieutenants and Deputy-lieutenants have been as if they could have perswaded Christian Princes nay worlds the right of Empire had been to take away by strong hand and they have endeavoured as farre as was possible for them to do it This hath not been done by the King under the pleasing shade of whose Crown I hope we shall ever gather the fruits of Justice but by Projectours They have pretended the Prerogative of the King beyond the just proportion which makes the sweet harmony of the whole They have rent from us the light of our eyes enforced a company of guests worse then the Ordinaries of France vitiated our wives and daughters before our faces brought the Crown to greater want then ever by anticipating the revenew and can the Shepherd be thus smitten and the Sheep not scattered They have introduced a Privie Councel ravishing at once the sphears of all ancient government imprisoning us without bank or bond They have taken from us what shall I say indeed what have they left us all means of supplying the King and ingratiating our selves with him taken up the roots of all Propriety which if it be not seasonably set into the ground by his Majestie 's own hand we shall have instead of Beauty Baldnesse To the making of them whole I shall apply my self and propound a remedy to all these diseases By one and the same thing hath King and people been hurt and by the same must they be cured by vindicating what new things no our ancient sober and vitall Liberties by reinforcing the ancient Laws made by our Auncestours by setting such a Character on them as no licencious spirit shall dare to enter upon them And shall we think this is a way to break a Parliament no our desires are modest and just I speak truly both for the interest of King and people If we enjoy not these it will be impossible to relieve him therefore let us never fear that they shall not be accepted by his Goodnesse Therefore I shall descend to my Motion consisting of four parts two of which have relation to our Persons two to the propriety of our Goods For our Persons the freedome of them first from imprisonment secondly from imployment abroad contrary to the ancient Customes For our Goods that no levies may be made but by Parliament secondly no billetting of souldiers It is most necessary that these be resolved that the Subject may be secured in both For the manner in the second place it will be fit to determine it by a grand Committee The Speech and Argument of M r. Creswell of Lincolne's Inne one of the Members of the Commons House of Parliament concerning the Subjects grievance by the late Imprisonment of their persons without any declaration of the Cause I Stand up to speak somewhat concerning the point of the Subjects grievance by imprisonment of their persons without any declaration of the cause contrary unto and in derogation of the fundamentall Laws and Liberties of this Kingdome I think I am one of the puisnes of our profession which are of the Members of this House but howsoever sure I am that in respect of my own inabilities I am the puisne of all the whole House therefore according to the usuall course of Students in our profession I as the puisne speak first in time because I can speak least in matter In pursuance of which course I shall rather put the case then argue it and therefore I shall humbly desire first of all of this honourable House in generall that the goodnesse of the cause may receive no prejudice by the weaknesse of my Argument and next of all of my Masters here of the same profession in particular that they by their learned judgements will supply the great defects I shall discover by declaring of my unlearned opinion Before I speak of the Question give me leave as an entrance thereunto to speak first of the Occasion You shall know Iustice is the life and the heart-bloud of the Common-wealth and if the Common-wealth bleed in the Master-vein all the Balm in Gilead is but in vain to preserve this our body of Policy from ruine and destruction Justice is both Columna Corona reipubâ—icae she is both the Column and the Pillar the Crown and the glorie of the Common-wealth This is made good in Scripture by the judgement of Solomon the wisest King that ever reigned on earth For first she is the Pillar for he saith that by Justice the Throne shall be established Secondly she is the Crown for he saith that by Justice a Nation is exalted Our Lawes which are the rules of this Justice they are the ne plus ultra to both the King and the Subject and as they are the Hercules Pillar so are they the pillar to every Hercules to every Prince which he must not passe Give me leave to resemble her to Nebuchadnezzars tree for she is so great that she doth shade not onely the Pallace of the King and the house of the Nobles but doth also shelter the Cottage of the poorest beggar Wherefore if either now the blasts of indignation or the unresistable violatour of lawes Necessitie hath so bruised any of the branches of this Tree that either our persons or goods or possessions have not the same shelter as before yet let us not therefore neglect the Root of this great Tree but rather with all our possible endeavour and unfeigned dutie both apply fresh and fertile mould unto it and also water it even with our own teares that so these bruised Branches may be recovered and the whole Tree again prosper flourish For this I have learned from an ancient Father of the Church that though preces Regum sunt armatae yet arma subditorum are but only preces et lachrymâ— I know well that Cor Regis inscrutabile and that Kings although they are but men before God yet are they Gods before men And therefore to my gratious and dread Soveraigne whose virtues are true qualities ingenerate both in his judgement and nature let my arm be cut off nay let my soul not live
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
hearts and affections loyally and religiously devoted to God and your Majesties service and to the safety of your Majesties Sacred Person we most zealously present to your Princely Wisdome craving your Majesties chearful and gracious approbation The King's Answer to the Petition against Recusants March 31. 1628. My Lords and Gentlemen I Do very well approve the method of your proceeding à Jove principium hoping that the rest of your Consultations will succeed the happier And I like the preamble of my Lord Keeper otherwise I should a little have suspected that you thought me not so carefull of Religion as I have been and ever shall be wherein I am as forward as you can desire As for the Petition I answere first in generall that I like it well and will use those as well as all other means for the maintenance and propagation of that Religion wherein I have lived and doe resolve to die But for the particulars you shall receive a more full answer hereafter And now I will only add this that as we pray to God to help us so we must help our selves for we can have no assurance of his assistance if we do ly in bed and only pray without using other means And therefore I must remember you that if we do not make provision speedily we shall not be able to put one Ship to sea this year Verbum sapienti satis est The Answer to the same Petition by the Lord Keeper Coventrey TO the first point his Majesty answereth That he will accoreding to your desire give both life and motion to the Laws that stand in force against Iesuits Seminary Priests and all that have taken Orders by authority of the Sea of Rome and to that end his Majesty will give strict order to all his Ministers for the discovering and apprehending of them and so leave them being apprehended to the triall of the Law and in case after tryall there shall be cause to respite the execution of any of them yet they shall be committed according to the example of best times to the Castle of Westbitch and there be safely kept from exercising their functions or spreading their Superstitious and dangerous Doctrine and for the receivers and abettors they shall be left to the Law To the second His Majesty granteth all that is desired in this Article and to this end will give order to the Lord Treasurer Lord high Admirall and Lord Warden of the Cinque Ports that in their severall places they be carefull to see this Article fully executed giving strict charge to all such as have place or authority under them to use all diligence herein and his Majesty requireth them and all other his Officers and Ministers to have a vigilant eye upon such as dwell in dangerous places of advantage or opportunity for receiving or transporting any such as are here mentioned and his Majesty will take it for good service if any will give knowledge of such as have connived or combined or shall connive or combine as is mentioned in this Article that Justice may be strictly done upon them To the third His Majesty will take order to restrain the recourse of Recusants to the Court and also for the other points of this Article his Majesty is well pleased that the Laws be duly executed and that all unlawfull Licenses be annulled and discharged To the fourth His Majesty is most willing to punish for the time past and prevent for the future any the deceits and abuses mentioned in this Article and will account it a good service in any that will inform himself his Privy Councell Officers of his Revenue Judges or Councell learned of any thing that may reveal this Mystery of Iniquity and his Majesty doth strictly charge and command every of them to whom such information is made that they suffer not the same to die but do their utmost endeavour to effect a clear discovery and bring the Offenders to punishment and to the intent that no concealed toleration may be effected his Majesty leaveth the Lawes to their course To the fifth His Majesty is pleased to prohibite and restrain the coming and resort to the house of Ambassadours and will command a vigilant watch to be set for their taking and punishing as is desired To the sixth He is perswaded that this Article is already observed with good care neverthelesse for the avoyding as much as may be errours and escapes in that â—ind his Majesty will give order to the Lord Keeper that the next Terme he call unto him all the Judges and take information from them of the state of their severall Circuits if any such as are mentioned in this Article be in the Commission for Peace that reformation may be made thereof and will likewise give order to the Lord Admirall and to such persons to whom it shall appertain to make diligent enquiry and certifie to his Majesty if any such be in place of authority and command in his ships or service To the seventh His Majesty doth fully grant it To the eighth His Majesty doth well approve it as a matter of necessary consideration and the Parliament now sitting he recommendeth to both Houses the preparation of a fitting Law to that effect and his Majesty doth further declare that the mildnesse that hath been used towards them of the Popish Religion hath been upon hope that forraign Princes thereby might be induced to use moderation towards their Subjects of the Reformed Religion but not finding that good effect which was expected his Majesty resolveth unlesse he shall very speedily see better fruit to adde a further degree of severity to that which is in this Petition desired Sir Edward Coke's Speech March 25. upon a Question of Law in point of the Iudgement given in the Kings Bench Mich. 3. Caroli Viz. That a Prisoner detained by Committment per special mandat Regis without expressing a Cause is not bailable wherein he held negatively and spake as followeth IT is true that the Kings Prerogative is a part of the Law of this Kingdome and a supream part for the Prerogative is highly tendred and respected of the Law yet it hath bounds set unto it by the Laws of England But some worthy Members of this House have spoken of forraign States which I conceive to be a forraign Speech and not able to weaken the Side I shall maintain That Master Attorney may have something to answer unto I will speak without taking another day to the body of the Cause yet keeping something in store for another time I have not my Vade mecum here yet I will endeavour to recite my Ancestours truly I shall begin with old Authority for Errorem ad sua principia referre est refellere The ground of this Errour was the Statute of Westm. 1 cap. 15. which â—aith that those are not repleviable who are committed for the death of a man or by the commandment of the King or his Justices for the Forrest for so it
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
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
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
by the errour of the Clark for want perhaps of distinction in his understanding of the Marshall of the Kings Bench from the Marshall of the Houshold The sixth of these is Thomas Cesar's Case It is in the 8. Iacobi Regis Rot. 99. This Cesar was committed to the Marshalsey of the Houshold per mandatum Domini Regis and returned to be therefore detained and indeed a remittitur is in the Roll but not a remittitur quousque but only that kind of remittitur which is used only whiles the Court adviseth And in truth this is so farre from proving any thing against the Resolution of the House of Commons that it appeares that the opinion of the reverend Judges of that time was That the Return was insufficient and that if it were not amended the Prisoner should be discharged For in the Book of Rules of that Court of Mich. Terme when Cesars Case was in question they did expresly order that if the Steward and Marshall did not amend their Return the Prisoner should be absolutely discharged The words of the Rule are Nisi Scenescalâ—us Marescallus hospitii Domini Regis sufficienter returnaverint breve de habeas Corpus Tho. Cesar die Mercurii proxim post quindenam Sancti Martini defendens exonerabitur And this is all the force of that President but yet there hath been an interpretation used upon this Rule It hath been said that the Judges gave this Rule because the truth was that the Return was false and that it was well known that the Prisoner was committed not by the immediate Command of the King but by the command of the Lord Chamberlain and thence as it was said they made this Rule But this kind of interpretation is the first that ever supposed that Judges should take any notice of the truth or falshood of any Return otherwise then the body of the Return could inform them And the rule it self speakes plainly of the sufficiency only and not of the truth or falshood of it The seventh of these is the Case of Iames Demetrius Edward Emerson and some others that were Brewers and were committed to the Marshalsey of the Houshold per mandatum Domini Regis and so returned upon habeas Corpus And it is true that the Roll shewes they were remanded but the remanding was only upon advisement And indeed the grave and upright Judges of that time were so carefull least upon the entring of the remanding any such mistake might be as might perhaps mislead posterity in so great a point that they would have expresly the word immediate added to remittitur that so all men that should meet with the Roll might see that it was done for the present only and not upon any debate of the question And besides there is no quousque to it which is usually added when the highest award upon debate or resolution of this kind is given by them The eighth of these is the Case of S r Samuel Saltonstall It is Hill 12. Iacob He was committed to the Fleet per mandatum Domini Regis and besides by the Court of Chauncery for disobeying an order of that Court and is returned upon his habeas Corpus to be therefore detained And it is true that a remittitur is entred in the Roll but it is only a remittitur prisonae predict without quousque secundum legem deliberatus fuerit And in truth it appeares in the Record that the Court gave the Warden of the Fleet 3 severall dayes at severall times to amend his Return and in the interim remittitur prisonae predict still Certainly if the Court had thought that the Return had been good they would not have given so many severall dayes to have amended it For if that mandatum Domini Regis had been sufficient in the Case why needed it to have been amended The ninth and last of these is Trinit 13. Iacob Rot. 71. the Case of the said S r Samuel Saltonstall He is returned by the Warden of the Fleet as in the Case before and generally remittitur as in the Roll which proves nothing at all that therefore the Court thought he might not by Law be enlarged and besides in both Cases he stood committed also for disobeying an order in Chauncery These are all that have been pretended to the contrary in this great point and upon the view of them thus opened to your Lordships it is plain that there is not one not so much as one at all that proveth any such thing as that persons committed by the Command of the King or of the Lords of the Councell without cause shewed might not be enlarged but indeed the most of them expresly prove rather the contrary Now my Lords having thus gone through the Presidents of Record that concern this point of either side before I come to the other kind of Presidents which are the solemn resolution of Judges in former times I shall as I am commanded by the House of Commons represent unto your Lordships somewhat else that they have thought very considerable with which they have met while they were in a most carefull enquirie of whatsoever concerned them in this great Question It is my Lords a draught of an Entry of a Judgement in that great Case lately adjudged in the Court of Kings Bench when divers Gentlemen imprisoned per speciale mandat Domini Regis were by the Award and Judgement of the Court after solemn debate sent back to Prison because it was expresly said that they could not in Justice deliver them though they prayed to be bailed The case is famous and well known to your Lordships therefore I need not further mention it And as yet indeed there is no Judgement entred upon the Roll but there is room enough for any kind of Judgement to be entred But my Lords there is a form of a Judgement a most unusuall one such a one as never was in any such Case before used for indeed there was never before any Case so adjudged and this drawn up by a chief Clark of that Court by direction of M r Attorney Generall as the House was informed by the Clark in which the reason of the Judgement and the remanding of those Gentlemen is expressed in such sort as if it should be declared upon Record for ever that the Law were that no man could be enlarged from imprisonment that stood committed by any such absolute command The draught is only in S r Iohn Henningham's Case being one of the Gentlemen that was remanded and it was made for a form for all the rest The words of it are after the usuall Entrie of a Curia advisur vult for a time that visis return predict nec non diversis antiquis Recordis in Curia hic remanent consimiles casus concernentibus maturaque deliber atione inde prius habita eo quod nulla specialis causa captionis sive detentionis predict Johannis exprimitur sed gener aliter quod detentus est in prisona predict
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
made to the King and Lords which is against the statute made in the 25 Ed. 3. c. 4. 42 E. 3. c. 3. By the Statute 25 Ed. 3. cap. 4. It is ordained and established that no man from henceforth shall be taken by petition or suggestion made to the King or his Councell but by indictment or course of Law and acordingly it was enacted 42 E. 3. c. 3. the title of which statute is None shall be put to answer an accusation made to the King without presentment Then my Lord it being so although the cause should not need to be expressed in such manner as that it may appear to be none of these causes mentioned in the statute or else the Subject by this return loseth the benefit and advantage of these Laws which be their birth-right and inheritance but in this return there is no cause at all appearing of the first commitment and therefore it is plain that there is no cause for your Lordship to remand him but there is no cause you should deliver him since the writ is to bring the body and the cause of the imprisonment before your Lordship But it may be objected that this writ of Habeas Corpus doth not demand the cause of the first commitment but of the detaining onely and so the writ is satisfied by the return for though it shew no cause of the first commitment but of detaining onely yet it declareth a cause why the Gentleman is detained in prison this is no answer nor can give any satisfaction for the reason why the cause is to be returned is for the Subjects liberty that if it shall appear a good and sufficient cause to your Lordship then to be remanded if your Lordship think and finde it insufficient he is to be enlarged This is the end of this writ and this cannot appear to your Lordship unlesse the time of the first commitment be expressed in the return I know that in some cases the time is not materiall as when the cause of the commitment is and that so especially returned as that the time is not materiall it is enough to shew the cause without the time as after a conviction or triall had by Law But when it is in this manner that the time is the matter it self for intend what cause you will of the commitment yea though for the highest cause of treason there is no doubt but that upon the return thereof the time of it must appear for it being before triall and conviction had by Law it is but an accusation and he that is onely accused and the accusation ought by Law to be let to bail But I beseech your Lordship to observe the consequence of this Cause If the Law be that upon this return this Gentleman should be remanded I will not dispute whether or no a man may be imprisoned before he be convicted according to the Law but if this return shall be good then his imprisonment shall not continue on for a time but for ever and the Subjects of this Kingdome may be restrained of their liberties perpetually and by Law their can be no remedy for the Subject and therefore this return cannot stand with the Laws of the Realm or that of Magna Charta Nor with the statute of 28 Ed. 3. ca. 3. for if a man be not bailable upon this return they cannot have the benefit of these two Laws which are the inheritance of the Subject If your Lordship shall think this to be a sufficient cause then it goeth to a perpetuall imprisonment of the subject for in all those causes which may concern the Kings Subjects and are appliable to all times and cases we are not to reflect upon the present time and government where justice and mercy floweth but we are to look what may betide us in the time to come hereafter It must be agreed on all sides that the time of the first commitment doth not appear in this return but by a latter warrant from the Lords of the Councell there is a time indeed expressed for the continuing of him in prison and that appeares but if this shall be a good cause to remand these Gentlemen to prison they may lie there this seven yeares longer and seven yeares after them nay all the dayes of their lives And if they sue out a writ of Habeas corpus it is but making a new warrant and they shall be remanded and shall never have the advantage of the Laws which are the best inheritance of every Subject And in Ed. 6. fol. 36. the Laws are called the great inheritance of every Subject and the inheritance of inheritances without which inheriritance we have no inheritance These are the exceptions I desire to offer to your Lordship touching the return for the insufficiency of the cause returned and the defect of the time of the first commitment which should have been expressed I will not labour in objections till they be made against me in regard the sttatute of Westminster primo is so frequent in every mans mouth that at the Common Law those men that were committed in four cases were not replevisable viz. those that were taken for the death of a man or the commandment of the King or his Justices for the forest I shall speak something to it though I intend not to spend much time about it for it toucheth not this Case we have in question For that is concerning a Case of the Common Law when men are taken by the Kings writs and not by word of mouth and it shall be so expounded as Master Stamford fol. 73. yet it is nothing to this Case for if you will take the true meaning of that statute it extends not at all to this writ of Habeas corpus for the words are plain they shall be replevisable by the Common writ that is by the writ de homine replegiando directed to the Sheriffe to deliver them if they were baileable but the Case is above the Sheriffe and he is not to be Judge in it whether the cause of the commitment be sufficient or not as it appears in Fitz Herbert de homine replegiando and many other places and not of the very words of the statute this is clear for thereby many other causes mentioned as the death of a man the commandment of the Justices c. In which the statute saith men are not replevisable but will a man conceive that the meaning is that they shall not be bailed at all but live in perpetuall imprisonment I think I shall not need to spend time in that it is so plain let me but make one instance A man is taken de morte hominis he is not baileable by writ saith this statute that is by the common writ there was a common writ for this Case and that was called de odio acia as appeareth Bracton Coron 34. this is the writ intended by the statute which is a common writ and not a speciall writ But my
Monstrans de faict si upon an action of trespasse brought for cutting of trees the defendant pleadeth that the place where he cut them is parcell of the Manor of D. whereof the King is seised in fee and the King commanded him to cut the trees and the opinion of the Court there is that the plea in barre was ill because he did not shew any speciall commandment of the King and there it is agreed by the whole Court that if the King commandeth one to arrest another and the party commanded did arrest the other an action of trespasse or false imprisonment is maintainable against the party that arrested him although it were done in the presence of the King 39 H. 6. 17. where one justifieth the seisure of the goods of a person that is outlawed by the commandment of the King such a party being no Officer may not in an action brought against him have any aid of the King for such a commandment given to one that is not an Officer will not any wayes avail him that is to justifie himself by the return of that commandment 37 Hen. 6. 10. If the king give me a thing and I take the same by his commandment by word of mouth it is not justified by law nothing may passe without matter of Record 10 Hen. 7. 7. 17. 18. it is agreed that Justices may command one to arrest another that is in their view or presence but not one that is out of their view or presence And Keble 10 Hen. 7. 13. said that where one is arrested by a parroll command in their view or presence it is fitting that a record may be made of it insomuch that without such a record there can hardly be a justification in another Term. Secondly there is a commandment of the King by his Commission which according unto Calvins case in the seventh Report it is called by him breve mandatum non remediabile and by virtue of such a commandment the King may neither seise the goods of his subject nor imprison his body as it is resolved in 42 Ass. pl. 5. where it is agreed by all the justices that a Commission to take a mans goods or imprison his body without indictment or suit of the party or other due processe is against the Law Thirdly there is a commandment of the King which is grounded upon a suggestion made to the King or to his Councell and if a man be committed to prison by such a suggestion by commandment of the King it is unlawfull and not warranted by the Law of the Realm The 25 of Edward the third cap. 4. de Provisoribus whereas it is contained in the great Charter of the Franchises of England that none shall be imprisoned or arrested of his Free-hold or of his Franchises nor of his free customes but by the Law of the land It is awarded consented and established that from hence forth none shall be taken by petition or suggestion made to our Soveraign Lord the King or to his Councell untill it be by indictment or presentment of his good and lawfull neighbours where such deeds are done in due manner or by processe made by writ originall at the common law nor of his free-hold unlesse he be duely brought in and answer and forejudged of the same by way of Law and if any thing be done against the same it shall be redressed and holden for nought 37 Ed. 3. cap. 10. although it be contained in the great Charter that no man be taken or imprisoned or put out of his freehold without due processe of the law neverthelesse divers persons make false suggestions to the King himself as well for malice as otherwise whereof the King is often grieved and divers of the Realm put in great damages contrary to the form of the same Statute Wherefore it is ordained that all they that make such suggestions be sent with their suggestions to the Chancellour or Treasurer and they and every of them find sureties to pursue their suggestions and endure the same pain that the other should have had if in case that his suggestion be found untrue and that then processe of the law be made against them without being taken or imprisoned against the form of the same Charter and other statutes So that it appears by these severall statutes that such commandments of the King as are grounded upon suggestion either made to himself or to his Councell for the imprisonment of a man are against the law Fourthly I find that there is a commandment of the King which is made under his hand with his signet for in the fourth and the fifth of Philip and Mary Dier 162. where the statute of 1 Rich. 2. cap. 11. restraineth the Warden of the Fleet for letting any man at large that is in upon judgement at the suit of any man except it be by writ or other commandment of the King It was doubted whether the Queen by letter under her hand and privy signet doth give commandment to the Warden of the Fleet to suffer a man that is there in execution to go about his businesse or the affaires of the Queen whether this be a warrantable command or not within the Statute and the Law hath alwayes been conceived upon that book that such a commandment is not warrantable by Law and if such a command will not serve the turn to give unto a man his liberty which the Lord favoureth and had the countenance of an Act of Parliament for the doing of it then I conceive it should be a more strong case the King should not have power by his commandment to imprison a man without due processe of the Law and restrain him of his liberty when there had been so many Acts of Parliament made for the liberty of the subjects Fifthly I do find that there is the commandment of the King which is by his writ under the Great Seal or the seal of the Court out of which it issueth Regist. f. 69. 70. in the writ de cautione admittenda I find the words mandatum Regis expounded to be breve Regis for the writ goeth Rex vic' Salutem Cum nuper ad requisitionem S. de Isle Canonici Lincol. venerabilis Patris H. Lincoln Episcopi ipso in remotis agente Vicarii general per Literas suas patentes nobis significantis Nicho. B. dict Lincoln Dioc. propter manifestam contumaciam Authoritate ipsius Episcopi Ordinar excommunicat esse nec si velle c. vobis praeceperimus quod praefat c. satisfactum ex parte ipsius N. qui virtute mandati nostri praedict per vos Capt. in Prison nostrade Newgate detent existit c. nos nolentes quod praefat N. per breve nostrum praedict via praecludatur c. prosequi possit in forma Iuris maxim ' c. integer esse debeat vobis praecipimus quod scire c. quod sit c. quare praedict N. Ã Prisona praediet
Common Law for there are also divers Jurisdictions in this Kingdom which are also so reckoned the Law of the Land As in Kendrick's Case in the report fol. 8. the 1. Ecclesiastical Law is held the Law of the Land to punish Blasphemies Schismes Heresies Simony Incest and the like for a good reason there rendred viz. That otherwise the King should not have power to do Justice to his Subjects in all Cases nor to punish all Crimes within his Kingdom The Admiral 's Jurisdiction is also Lex terrae for things done upon the Sea but if they exceed their Jurisdiction a prohibition is awarded upon the Statute of null us liber homo by which appears that the Statute is in force as we have acknowledged The Martial likewise though not to be exercised in times of peace when recourse may be had to the Kings Courts yet in times of invasion or other times of Hostility when an Army Royal is in the field and offences are committed which require speedy reformation and cannot expect the solemnity of legal Trials then such imprisonment execution or other Justice done by the Law Martial is Warrantable for it is then the Law of the Land and is Ius gentium which ever serves for a supply in the defeat of the Common Law when ordinary proceeding cannot be had And so it is also in the case of the Law of the Merchant which is mentioned 13. E 4. fol. 9. 10. where a Merchant stranger was wronged in his goods which he had committed to a Carrier to convey to Southampton and the Carrier imbezelled some of the goods for remedy whereof the Merchant sued before the Councel in the Star-Chamber for redress It is there said thus Merchant strangers have by the King safe conduct for coming into this Realm therefore they shall not be compelled to attend the ordinary Trial of the Common Law but for expedition shall sue before the Kings Councel or in Chancery de die in diem de hâ—râ in horam where the Case shall be determined by the Law of Merchants In the like manner it is in the Law of State when the necessity of State requires it they do and may proceed to natural equity as in those other Cases where the Law of the Land provides not there the proceeding may be by the Law of natural equity and infinite are the Occurrences of State unto which the Common Law extends not And if these proceedings of State should not also be accounted the Law of the Land then we do fall into the same inconveniency mentioned in Cawdries Case that the King should not be able to do Justice in all Cases within his own Dominions If then the King nor his Councel may not Commit it must needs follow that either the King must have no Councel of State or having such a Councel they must have no power to make Orders or Acts of State Or if they may they must be without means to compell obedience to those Acts and so we shall allow them Jurisdiction but not compel obedience to those Acts but not correction which will be then as fruitless as the Command Frustra potentia quae nunquam redigitur in statutum Where as the very Act of Westminster first shews plainly that the King may commit and that his commitment is lawfull or else that Act would never have declared a man to be irreprieveable when he is committed by the Command of the King if the Law-makers had conceived that his commitment had been unlawfull And Divine truth informs us that the Kings have their power from God the Psalmist calling them the children of the most High which is in a more special manner understood then of other men for all the Sons of Adam are by election the Sons of God and all the Sons of Abraham by recreation or regeneration the Children of the most High in respect of the power which is committed unto them who hath also furnished them with ornaments and arms fit for the exercising of that power and hath given them Scepters Swords and Crowns Scepters to vestitute and Swords to execute Laws and Crowns as Ensigns of that power and dignity with which they are invested shall we then conceive that our King hath so far transmitted the power of his Sword to inferiour Magistrates that he hath not reserved so much Supream power as to commit an Offender to prisonâ— 10. H. 6. fol. 7. It appears that a Steward of a Court Leet may commit a man to prison and shall not the King from whom all inferior power is deduced have power to commit We call him the fountain of Justice yet when these streams and rivolets which flowe from that Fountain come fresh and full we would so far exhaust that Fountain as to leave it dry but they that will admit him so much power do require the expression of the cause I demand whether they will have a general cause alleadged or a special if general as they have instances for Treason Fellony of for Contempt for to leave fencing and to speak plainly as they intend it If loan of money should be required and refused and thereupon a commitment ensue and the cause signified to be for a contempt this being unequal inconvenience from yielding the remedy is sought for the next Parliament would be required the expression of the particular cause of the commitment Then how unfit would it be for King or Councel in Cases to express the particuler Cause it s easily to be adjudged when there is no State or pollicy of government whether it be Monarchal or of any other frame which have not some secrets of State not communicable to every vulgar understanding I will instance but one If a King imploy an Ambassadour to a Forreign Countrey of States with instructions for his Negotiation and he pursue not his instructions whereby dishonour and dammage may ensue to the Kingdom is not this commitment And yet the particuler of his instruction and the manner of his miscarrying is not fit to be declared to his Keeper or by him to be certified to the Judges where it is to be opened and debated in the presence of a great audience I therefore conclude for offences against the State in Case of State Government the King and his Councel have lawfull power to punish by imprisonment without shewing particular cause where it may tend to the disclosing of State-Government It is well known to many that know me how much I have laboured in this Law of the Subjects Liberty very many years before I was in the Kings service and had no cause then to speak but to speak ex animo yet did I then maintain and publish the same opinion which now I have declared concerning the Kings Supream power in matters of State and therefore can not justly be centured to speak at this present onely to merit of my Master But if I may freely speak my own understanding I conceive it to be a question too high to
they have been delivered upon Habeas Corpus and that constantly It is true that some Presidents were brought on the Kings part that when some of these persons desired to be delivered by Habeas Corpus the King or his Councel signified his Majesties pleasure that they should be delivered or the Kings Attorney hath come into the Court and related the Kings Command but this seems to make for the Subject For that being in his Majesties power to deliver them who by his special Command were imprisoned May not we well think that his Majesty would rather at that time have stayed their deliverance by Law then furthered it with his Letters and made the Prisoners rather beholding to him for his grace and mercy then to the Judges for Justice had not his Majesty known that at that time they ought to have been delivered by Law I think no man would imagine a wise King would have suffered his Grace and Prerogative if any such Prerogative were to be so continually questioned and his Majesty and his Councel so far from commanding the Judges not to proceed to deliver the Prisoner by them committed without Cause shewn as that on the other side which is all the force of these Presidents the King and the Councel signified to the Judges that they should proceed to deliver the parties certainly if the King had challenged any such Prerogative that a Person committed without any cause shewn ought not to be delivered by the Judges without his consent it would have appeared by one President or other amonst all that have been produced that his Majesty would have made some claim to such a Prerogative But it appears to the contrary that in many of these cases the King or his Councel did never interpose and where they did it was alwayes in affirmation and incouragement to that Court to proceed And besides the writing of Letters from his Majesty to the Judges to do Justice to his Majesties Subjects may with as good reason be interpreted that without those Letters they might not do Justice also the King signified his willingness that such such Persons which were committed by him should be delivered therefore they could not be delivered without it which is a strange reason So that findeing the Laws so full so many and so plain in the point and findeing that when ever any were committed without cause shewn brought their Habeas Corpus they were delivered and no Command ever given to the contrary or claim made on the Kings part to any such Prerogative I may safely conclude as the House of Commons have done and if any one President or two of late can be shewn that the Judges have not delivered the Prisoners so committed I think it is their fault and to be enquired of but contrary it seems to me to be an undoubted Liberty of the Subject that if he be committed without cause or without cause shewn yet he may have some speedy course to bring himself to Trial either to justifie his own innocencie or to receive punishment according to his fault for God forbid that an innocent man by the Laws of England should be put in worse case then the most grievous Malefactors are which must needs be if this should be that if a cause be shewed he may have his Trial but if none he must lie and pine in Prison during pleasure Mr. Serjeant Ashley the other day told your Lordships of the Embleme of a King but by his leave made wrong use of it For a King bears in one hand the Globe and in the other the golden Scepter the tipes of Soveraignty and mercie but the Sword of Justice is ever carried before him by a Minister of Justice which shews Subjects may have their remedies for unjustice done and appeals done to higher powers for the Laws of England are so favourable to their Princes as they can do no unjustice Therefore I will conclude as all disputes I hold do Magna est veritas praevalebit so I make no doubt we living under so good a Prince as we do when this is represented unto him he will answer us Magna est Carta praevalebit The ARCH-BISHOPS of CANTERBURIES Speech at the Conference of both Houses 25. April 1628. GEntlemen of the House of Commons the service of the King and safety of the Kingdom do call on us my Lords to give all convenient expedition to dispatch some of those great and weighty businesses for the better effecting whereof my Lords have thought fit to let you know that they do in general agree with you and doubt not but you will agree with us to the best of your power to maintain and support the fundamental Laws of the Kingdom and the fundamental Liberties of the Subject for the particulers which may hereafter fall in debate they have given me in charge to let you know that what hath been presented by you to their Lordships they have laid nothing of it by they are not out of love with any thing you have tendered to them they have voted nothing neither are they in love with any thing proceeding from themselves for that which we shall say and propose unto you is out of an intendment to invite you to a mutual and free conference that you with confidence may come to us and we with confidence may speak to you so that we may come to a conclusion of those things which we both unanimously desire we have resolved of nothing defined or determined nothing but desire to take you with us praying help of you as you have done of us My Lords have thought upon some Propositions which they have ordered to be read here and then left with you in writing that if it seem good to you we may uniformly concur for the substance and if you differ that you may be pleased to put out or add or alter or diminish as you shall think fit that so we the better come to the end that we do both so desireously embrace Then the 5. Propositions were read by the Lord BISHOP of NORVVHICH The 5. Propositions 25. April 1628. 1. THat his Majesty would be pleased gratiously to declare that the good old Law called Magna Charta and the 6. Statutes conceived to be Declarations or Explanations of that Law do stand still in Force to all intents and purposes 2. That his Majesty would be pleased gratiously to declare that according to Magna Charta and the Statutes aforesaid as also according to the most ancient Customes and Laws of this Land every free Subject of this Realm hath a fundamental propriety in his good and a fundamental Liberty of his Person 3. That his Majesty would be pleased gratiously to declare that it is his Royal pleasure to ratifie and confirm unto all and every his faithfull and Loyal Subjects all their antient several just Liberties Priviledges and Rights in as ample and beneficial manner to all intents and purposes as their Ancestors did enjoy the same