A CONFERENCE DESIRED BY THE LORDS AND HAD by a Committee of both Houses CONCERNING THE RIGHTS AND PRIVILEGES of the Subjects Discoursed by Sir DUDLEY DIGGES Sir EDWARD LITTLETON Knight now Lord Keeper Master SELDEN Sir EDWARD COOKE With the Objections by Sir Robert Heath Knight then Attorney Generall and the Answers 3o. Apr. 4. Car. 1628. LONDON Printed by A. N. for Mathew Walbancke and Richard Best and are to be sold at their shops at Graies-Inne Gate 1642. THE INTRODVCTION Sir Dudley Diggs MY LORDS I Shall I hope auspiciously begin this Conference this day with an observation out of the holy Story 2. Chro. Cha. 34. in the dayes of good King Iosiah when the Land was purged of Idolatrie and the great men went about to repaire the house of God while money was sought for there was found a Booke of the Law which had beene neglected 2 Kings Cha. 22. and afterwards being presented to the good King procured the blessing which your Lordships may reade in the Scriptures My good Lords I am confident your Lordships will ascheerefully joyne with the Commons in acknowledgement of Gods great blessing in our good King Iosiah as the Knights Citizens and Burgesses of the House of Commons by mee their unworthiest servant doe thankfully remember your most religiously and truly honourable invitation of them to the late Petition for cleansing this Land from Popish abominations which I may truly call a necessary and a happy repairing of the house of God and to goe on with the parallel whilst we the Commons out of our good affections were seeking for money we found I cannot say a booke of the Law but many and fundamentall points thereof neglected and broken which hath occasioned our desire of this conference wherein I am first commanded to shew unto your Lordships in generall that the Lawes of England are grounded on reason more ancient then bookes consisting much in unwritten customes yet so full of Justice and true equitie that your most Honourable Predecessors and Ancestours propugned them with a nolumus mutari and so ancient that from the Saxon dayes notwithstanding the Injuries and ruines of time they have continued in most parts the same as may appeare in old remaining Monuments of the Lawes of Ethelbert the first Christian King of Kent Jna the King of the West Saxons Offer of the Mertians and of Alfred the great Monarch who united the Saxon Heptarchie whose lawes are yet to bee seene published as some thinke by Parliament as he sayes to that end Vt qui sub uno rege sub una lege regeâ—entur And though the Booke of Litchfield speaking of the times of the Danes sayes that then Ius sopitum erat in regno leges consuetudines sopitae sunt and prava voluntas vis violentia magis regnabant quam judicia vel justitia yet by the blessing of God a good King Edward commonly called St. Edward did awaken those lawes and as the old words are Excitatas reparavit reparatas decoravit decoratas confirmavit Which confirmavit shewes that good King Edward did not give those Lawes which William the Conquerour and all his Successours since that time have sworne unto And here my Lords by many Cases frequent in our moderne Lawes strongly concurring with those of the ancient Saxon Kings I might if time were not more pretious demonstrate that our Lawes and Customes were the same I will only intreat your Lordships leave to tell you that as we have now even in those Saxon times they had their Court Barons and Court Leets and Sheriffs Courts by which as Tacitus sayes of the Germanes their Ancestours Jura reddebant per pagos vicos and I doe beleeve as wee have now they had their Parliaments where new lawes were made cum consensu Praelatorum magnatum totius communitatis or as another writes cum consilio praelatorum nobilium sapientium laicorum I will adde nothing out of Glanvile that wrote in the time of H. 2. or Bracton that writ in the dayes of H. 3. only give me leave to cyte that of Fortescue the learned Chancellour to H. 6. who writing of this Kingdome sayes Regnum istud moribus nationum Regum temporibus eisdem quibus nunc Regitur legibus consuetudinibus regebatur But my good Lords as the Poet said of Fame I may say of our common Law Ingrediturque solo caput inter nubila condit Wherefore the cloudy part being mine I will make hast to open way for your Lordships to heare more certaine Arguments and such as goe on more sure grounds Be pleased then to know that it is an undoubted and fundamentall point of this so antient common law of England that the Subject hath a true property in his goods and poffessions which doth preserve as sacred that Meum tuum that is the nurse of Industry and mother of Courage and without which there can be no Justice of which Meum tuum is the proper object But the undoubted birth-right of Free Subjects hath lately not a little beene invaded and prejudiced by pressures the more grievous because they have beene pursued by imprisonment contrary to the Franchises of this Land and when according to the Lawes and Statutes of this Realme redresse hath beene sought for in a legall way by demanding Habeas Corpus from the Judges and a discharge or triall according to the law of the Land successe hath failed that now inforceth the Commons in this present Parliament assembled to examine by Acts of Parliament presidents and reasons the truth of the English Subjects libertie which I shall leave to learned Gentlemen whose learned Arguments I hope will leave no place in your Lordships memories for the errours and infirmities of your humblest servant that doth thankfully acknowledge the great favour of your Honourable and patient Attention Sir Edward Littletons Argument The Argument made by the Command of the house of Commons out of Acts of Parliament and authorities of Law expounding the same at the first Conference with the Lords concerning the libertie of the person of every Free-man Mr. Littleton MY LORDS VPon the occasions delivered by the Gentleman your Lordships have heard the Commons have taken into their serious consideration the matter of personall libertie and after long debate thereof on divers dayes as well by solemne Arguments as single propositions of doubts and answers to the end no scruple might remaine in any mans brest unsatisfied they have upon a full Search and cleare understanding of all things pertinent to the question unanimously declared That no Free-man ought to bee committed or restrained in prison by the command of the King or Privie Counsell or any other unlesse some cause of the commitment detainer or restraint bee expressed for which by law hee ought to bee committed detained or restrained And they have sent mee with other of their members to represent unto your Lordships the true grounds of their resolution and have charged me
committed one cause must be pretended and another intended especially when it toucheth matter of State Rns Whereunto it was answered that all dissimulation especially in a cause of Justice was to be avoided and soundnesse of truth to take place And therefore David that was both a King and a Prophet prayed unto Almighty God against dissimulation in these words Lord send me a sound heart in thy Statutes that I be not ashamed where found in the originall signifieth upright without dissimulation and shame followes dissimulation when the truth is knowne The third objection 3 If a Rebell be attainted in Ireland and his children for safety and matter of State be kept in the Tower what shall be returned upon the habeat corpus Rns Whereunto it was answered that their imprisonment might be justified if they could not find good sureties for their good behaviour 2. It was charity to finde them meat drink and cloath that by the Attainder of their Father had nothing The fourth objection 4 Though his Majestie expresseth no cause yet it must be intended there was a just cause Rns Bracton Fleta Answere De non apparentibus non existentibus eadem ratio The fifth objection 25. Ed. 3. cap. 13 Stat. 4. H. 7. 6. 5 The King in stead of gold or silver may make money currant of any base mettall 2. He may make warres at his pleasure 3. Hee may pardon whom he will 4. Hee may make Denizens as many as he will and these were said to be greater prerogatives then these in question Rns Answer to the first It was denied that the King might make money Currant of base money but it ought to be of gold or silver 2. It was answered admitting that the King might do it his losse and charge was more then of his Subjects both in the Case of money and in the Case of warre the pardon was private out of grace and no man had danger or losse by it and so the making of Denizens the King was onely the looser vizt where hee had double Customes to have single 3. It was a non sequitur the King may doe these things ergo hee may imprison at will Your Lordships are now advised by those that cannot be daunted for feare nor misled by affected reward or hope of preferment that is of the dead 1 By ancient and many Acts of Parliament in the point besides Magna Charta which hath beene 30 times confirmed and commanded to be put in execution whereto the Kings of England have 30 times given their royall assent 2 Judiciall Presidents of grave and reverend Judges in terminis terminantibus that long since are departed this world 3 And lastly per vividas rationes manifest and apparent reasons Wee of the House of Commons have upon great Studie and serious consideration made a great manifesto unanimously nullo contradicente concerning this great liberty of the Subject and have vindicated and recovered the body of this fundamentall liberty both of your Lordships and of our selves from shadowes which sometimes of the day are long sometimes short and sometimes long againe And therefore no Judges are to be led by them your Lordships are involved in the same danger and therefore ex congruo condigno Wee desired a conference to the end your Lordships may make the like declaration as we have done Commune periculum requireth commune auxilium and thereupon take such further course as may secure both your Lordships and us and all your and our posterities in enjoying our ancient undoubted and fundamentall liberties FINIS The substance of the obiections made by M. Attorney Generall before a Committee of both Houses to the Argument that was made by the House of Commons at the first conference with the Lords out of Presidents of Record and resolutions of the ludges in former times touching the liberty of the person of every Freeman and the answers and replies then presently made by the House of Commons to those objections M. Attorneyes objections AFter the first conference which was desired by the Lords and had by a Committee of both Houses in the painted Chamber touching the reasons lawes acts of Parliament and Presidents concerning the liberty of the person of every Freeman M. Attorney Generall being heard before a Committee of both Houses as it was assented by the House of Commons that hee might be before they went up to the conference after some preamble made wherein hee declared the answering of all reasons of Law and Acts of Parliament came onely to the Presidents used in the Arguments before delivered and so endevoured to weaken the strength of them that had bin brought on the behalfe of the Subject to shew that some were directly contrary to the Law comprehended in the resolutions of the House of Commons touching the bayling of prisoners returned upon the Writ of Habeas Corpus to be committed by the speciall command of the King or of the Counsell without any cause shewed for which they ought by Law to be committed And the course that was taken which it pleased the Committee of both Houses to allow of was that M. Attorney should make his objections to every particular President and that the Gent. appointed and trusted by the House of Commons by severall replies should satisfie the Lords touching the severall objections made by him against or upon every particular as the order of the Presidents should lead them He began with the first 12 Presidents that were used by the House of Commons at the conference desired by them to prove that prisoners returned to stand so committed were delivered by bayle by the Court of Kings Bench. Objection al Bildestons Case cite devant fo 35. 55. The first was that of Bildestons Case in 18 Ed. 3. Rot. 33. To this he objected 1. That in thereturne of him into the Court it did not appeare that this Bildeston was committed by the Kings Command And secondly that in the Record it did appeare also that he had beene committed for suspition of counterfetting of the great Seal and so by consequence was bayleable in the Law in regard there appeared a cause why hee was committed in which case it was granted by him as indeed it is plaine and agreed of all hands that the prisoner is bayleable though committed by the Command of the King And he said that this part of Record by which it appeared hee had beene committed for this suspition of treason was not observed to the Lords in their Argument before used And he shewed also to the Lords that there were three severall kinds of Records by which the full truth of every award or bayling upon a habeat corpus is knowne First by the remembrance roll wherein the award is given Secondly the file of the Writ and the returne Thirdly The Scruet Roll or Scruet Finn ' wherein the Bayle is entred and that onely the remembrance roll of this case was to be found and that if the
death without he be brought in answer by due Proces of law Here your Lordships see the usuall words of The law of the Land are rendred by Due Proces of the law 36. Ed. 3. Rot. parliament numero 9. 36. E. 3. Rot. Parliam nu 9. Peticion del Commons Amongst the Petitions of the Commons one of them being translated into English out of French is thus First that the great Charter and the Charter of the Forrest and other Statutes made in the time of his Progenitors for the profit of him and his Comonaltie be well and firmly kept and put in due execution without putting disturbance or making arrest contrary to them by speciall command or in other manner Rns al peticion The Answer to the Petition which makes an Act of Parliament Our Lord the King by the Assent of the Prelates Dukes Earles Barons and the Commonaltie hath ordained or established that the said Charters and Statutes bee held and put in execution according to the said Petition It is observable that the Statutes were to be put in execution according to the said Petition which is that no arrest should bee made contrary to the Statutes by speciall command This concludes the question and is of as great force as if it were printed for the Parliament roll is the true warrant of an Act and many are omitted out of the bookes that are extant in the Roll. 36. Ed. 3. Rot. Parliamenti num 22. 36. Ed 3. Rot. parl num 22. Peticion d' Commons explaineth it further for there the Petition is Item as it is contained in the grand Charter and other Statutes that no man be taken or imprisoned by speciall command without Inditement or other due Proces to be made by the law and oftentimes it hath beene and yet is many are hindred taken and imprisoned without Inditement or other Proces made by the Law upon them as well of things done out of the Forrest of the King as for other things that it would please our said Lord to command those to bee delivered which are so taken by speciall command against the forme of the Charter and Statutes as aforesaid Rns al Peticion The answer is St. 27. Ed 3. ca. 18. The King is pleased that if any man find himselfe grieved that he come and make his complaint and right shall be done unto him 37 Ed. 3. cap. 8. agreeth in substance with them it saieth Though it be contained in the great Charter that no man be taken nor imprisoned nor put out of his Freehold without Proces of the law Neverthelesse divers people make false suggestions to the King himselfe as well for malice as otherwise whereof the King is often grieved and divers of the Realme put in dammage against the forme of the same Charter Wherefore it is ordained that all they which make Suggestions shall be sent with the same Suggestions to the Chancellour Treasurer and his grand Counsell 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 the Suggestion be found evill and that then Proces of law be made against them without being taken or 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 Proces of law Sta. 42. Ed. 3. ca. 13. 42. Ed. 3. cap. 13. At the request of the Commons by their Petition put forth in this Parliament to eschew mischiefe and dammage done to divers of his Commons by false accusers which oftentimes have made their accusasions more for revenge and singular profit then for the profit of the King or of his people which accused persons Some have beene taken and caused to come before the Kings Counsell by Writ and otherwise upon grievous paines against the Law It is assented and accorded for the good governance of the Commons that no man be put to answer without presentment or matter of record or by due Proces and Writ originall according to the old law of the Land And if any thing from hence bee done to the contrary it shall be void in the Law and holden for Error Sta. 42. Ed. 3. Rot. Parliam num 12. But this is better in the Parliament roll where the Petition and answer which make the Act are set downe at large 42. Ed. 3. Rot. Parliamenti numero 12. Peticion des Cōmons The Petition Item Because that many of your 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 of his people And those that are accused by them some are taken and others are made to come before the Kings Counsell by Writ or other commandement of the King upon grievous paines contrary to the Law That it would please our Lord the King and his good Counsell for the just government of his people to ordaine that if hereafter any accuser purpose any matter for the profit of the King that the same matter be sent to the Iustices of the one bench or of the other or the Assises to be inquired and determined according to the Law and if it concerne the Accuser or party that he take his Suit at the common law and that no man bee put to answer without presentment before Iustices or matter of Record and by due Proces and originall Writ according to the ancient law of the Land And if any thing henceforward bee done to the contrary that it bee void in law and held for error Here by due Proces and originall Writ according to the ancient 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 to the commandement of the King Rns al petition The Kings Answer is thus Because that this Article is an Article of the grand Charter the King willeth that this bee done as the Petition doth demand By this appeareth that per legem terrae in Magna Charta is meant by due Proces of the Law Obi. hors d' l' Sta. de Westm 1. cap. 15. Thus your Lordships have heard act of Parliament in the point But the Statute of Westminst 1. cap. 15. is urged to disprove this opinion where it is expresly said Que ne sont repleviseable que sont commit per le command le Roy. that a man is not repleviseable who is committed by the command of the King therefore the Command of the King without any cause shewed is sufficient to commit a man to prison And because the strength of the Argument may appeare and the Answer bee better understood I will reade the words of the Statute which are thus Les parols d' Sta. And forasmuch as Sheriff and others which have taken and kept in prison persons detected for Felonie and oftentimes have let out
by Replevin such as were not repleviable and have kept in prison such as were repleviable because they would gaine of the one party and grieve the other And forasmuch as before this time it was not certainly determined what persons were repleviable and what not but only those that were taken for the death of a man or by the commandment of the King or of his Iustices 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 provers and such as be taken with the manner and those which have broken the Kings prison Theeves openly defamed and knowne and such as be appealed by approvers so long as the approvers are living if they be not of good name and such as be taken for burning of houses feloniously done or for false money or for counterfeiting the Kings Seale or persons Excommunicate taken at the request of the Bishop or for manifest offences or for treason touching the King himselfe shall be in no wise repleviable by the common Writ or without Writ But such as be indicted of Larceny by inquests taken before Sheriffs or Bayliffs by their office or of light suspition or of petit Larceny that amounteth not above the value of twelve pence if they were not guiltie of some other Larceny afore-time or guilty of receipt of Felons or of commandment or of force or of ayde of felony done or guilty to some other trespasse for which one ought not to lose either life or member and a man appealed by an approver after the death of the approver if he be no common theefe or defamed shall from henceforth be lett out by sufficient suretie whereof the Sheriff will be answerable and that without giving ought of their goods and if the Sheriffe or any other let any goe at large by surety that are not repleviable if hee be Sheriffe or Constable or any other Bailiffe or such as hath a Fee which hath keeping of prisons and thereof be Attainted he shall lose his Office and Fee for ever And if the under Sherife Constable or Bailiffe or such as hath Fee for keeping of Prisons doe it contrary to the will of his Lord or any other Bailiffe being not of Fee they shall have three yeares imprisonment and make a Fine at the Kings pleasure And if any man with-hold Prisoners repleviseable after that they have offered sufficient Suretie 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 be in the great mercy of the King The Answer It must be acknowledged that a man taken by the commandement of the King is not repleviseable for so are the expresse words of this Statute but this maketh nothing against the Declaration of the Commons For they say not the Sherife may replevy such a one by sureties silicet manucaptores but he is bayleable by the Kings Courts of Justice for the better apprehending whereof it is to be knowne that there is a difference betweene repleviseable Diversitie enter Bayleable repleviseable which is alwayes by the Sherife upon pledges or Sureties given and baileable which is by a Court of Record where the Prisoner is delivered to bayle and they are his Gaolers and may imprison him and shall suffer for him body for body as appeareth 33. 36. Ed 3. titulo mainprise 12. 13. where the difference betwixt Bayle and Mainprise is expresly take and if the words of the Statute themselves be observed it will appeare plainly that it extends to the Sherife and other inferiour Officers and doth not bind the hands of the Judges The preamble which is the key that openeth the Entrance into the meaning of the makers of the Law is Forasmuch as Sherifes and others have taken and kept in prison persons detected of felonie Out of these words I observe that it nominateth Sherifes and then if the Judges should be included they must be comprehended under that generall word other which doth not extend to those of an higher ranke but to inferiours for the best by all courses 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 an higher nature but it shall extend to ordinary annuall service 31. E. 1. Droit 67. So the Statute of 13. El. 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 an higher degree as appeareth in the Archbishop of Canterburies Case 2. Reports fol. 46. B. And thus much is explained in the very Statute towards the end when it doth enumerate those were meant by the word other namely under Sherifes Constables Bailiffs c. Againe the words are Sherifes and others which have taken and kept in prison Now every man knoweth Judges doe neither arrest nor keep men in prison that is the office of Sherifes and other inferiour Ministers Therefore this Statute meant such only and not Judges The words are further that they let out by replevin such as are not repleviable that is the proper language for a Sherife Nay more expresse afterward in the body of the Statute that such as are there mentioned shall be in no wise repleviseable by the common Writ which is de Homine replegiando and is directed to the Sherife nor without Writ which is by the Sherife Ex officio But that which receives no answer is this that the command of the Justices who derive their authoritie from the Crowne is the equalled and to this purpose with the command of the King And therefore by all reasonable construction it must needs relate to Officers that are subordinate to both as Sherifes under-Sherifes Bailiffes Constables and the like And it were a harsh exposition to say that the Justices might not discharge their owne command and yet that reason would conclude as much And that this was meant of the Sherife and other ministers of Justice by the recitall 27. Ed. 1. cap. 3. and likewise by Fleta a manuscript so called because the Author lay in the Fleet when he made the booke for he lib. 2. cap. 52. in his Chapter of turnes and the viewes of the hundred Court in the Countrey setteth downe the Articles of the Charges that are there to be inquired of amongst which one of them is De Replegibilibus injuste detentis irreplegiabilibus dimissis which cannot be meant of not bayling by the Justices for what hath the inferiour Courts in the Countrey to doe with the acts of the Justices and to make that more plaine he setteth downe in that chapter that concerneth Sherifes only the very Statute of Westminster 1. which he translates verbatim out of the French into the Latine save that
replied by the Cōmons that all danger and inconvenience may be avoided by declaring a generall Cause as for Treason suspition of Treason misprision of Treason or felonie without specifying the particular which can give no greater light to a confederate then will bee conjectured by the very apprehension upon the imprisonment if nothing at all were expressed 5. Object It was further alledged that there was a kind of contradiction in the position of the House of Commons when they say a party committed without a cause shewed ought to be delivered or bayled Bayling being a kind of imprisonment deliverie a totall freeing Le Rns To this it hath beene answered that it hath alwayes beene the discretion of the Judges to give so much respect to a commitment by the Command of the King or the Privie Councell which are ever intended to be don in just and weighty causes that they will not presently let them free but bayle them to answer what shall be objected against them on his Majesties behalfe but if any other inferiour Officer doe commit a man without shewing cause they doe instantly deliver him as having no cause to expect their leasure So the delivery is applied to an imprisonment by the command of some meane minister of Justice Bayling when it is done by the command of the King or his Counsell 6. Object It was urged by Mr. Attorney that Bayling is a grace and favour of a Court of Justice and that they may refuse to doe it Le Rns This was agreed to be true in divers cases as where the cause appears to be for felony or other crimes expressed for that there is another way to discharge them in convenient time by their triall and yet in these cases the constant practise hath beene anciently and modernly to bayle men but where no cause of the imprisonment is returned but the Command of the King there is no way to deliver such persons by triall or otherwise but that of the Habeas Corpus And if they should be then remanded they might be perpetually imprisoned without any remedy at all and consequently a man that had committed no offence might be in worse case then a great offender for the later should have an ordinary tryall to discharge him the other should never be delivered 7. Objection It was further said that though the Statute of Westminster 1. cap. 15. be a Statute which by way of provision did extend only to the Sherife yet the recitall of that touching the foure causes wherein a man was not repleviseable at the common law namely those that were committed for the death of a man by the command of the King or of his Justices or for the Forrest did declare that the Justices could not bayle such a one and that repleviseable and bayleable were Synomina all one and that Stanford a Judge of great authoritie doth expound it accordingly Stan. pl. Cor. 72. and that neither the Statute nor he say repleviseable by the Sherife but generally without restraint And that if the chiefe Justice committed a man hee is not to be inlarged by any other Court as appeareth in the Register Le Rns To this it was answered That the recitall of the body of the Statute relateth only to the Sherife only as appeareth by the very words 2. That Repleviseable is to the Sherife for that the word imports no more but a man committed by the chiefe Justice is bayleable by the Court of Kings Bench. 3. That Stanford meaneth all of the Sherife or at least hee hath not sufficiently expressed that he intended the Justices 4. It was denied that Repleviseable and bayleable was the same for they differ in respect of the place where they are used bayle being in the Kings Court of record Repleviseable before the Sherife and they are of severall natures repleviable being a letting at large upon suretie bayling being when one traditur in Balliv the bayle are his Iaylors and may imprison him and shall suffer body for body which is not of replevying by Sureties and differeth from Mainprise in this Diversitie enter bayle mainprise Mainprise is an undertaking in a some certaine Bayling to answer the condemnation in Civill causes and for criminall body for body And the reasons and authorities in the first Conference were then renewed and no exceptions taken to any save that in 22. H. 6. it doth not appeare that the command of the King was by his mouth which must be intended or by his Counsell which is all one as is observed by Stanford for the words are that a man is not repleviseable by the Sherife who is committed by the Writ or the commandment of the King 21. Ed. 1. Rot. 2. Dors was Cyted by the Kings Counsell that it was answered that it concerned the Sherife of Leicester shire only and not the power of the Iudges 33. H. 6. the Kings Attorney confessed was nothing to the purpose and yet that Booke hath beene usually cited by those that maintaine the contrary to the Declaration of the Commons And therefore such sudden opinions as have been given thereupon are not to be regarded the foundation failing And where it was said that the French of 36. Ed. 3. Rot. parliamenti numero 9. which can receive no answer did not warrant what was inferred thence but that these words Sauns disturbance mettre ou arrest fair le contre per special mandement ou autre mannere must bee understood that the Statute should be put in execution without putting disturbance or making arrest to the contrary by speciall command or in other manner The Commons did utterly denie the interpretation given by the Kings Counsell and to justifie their owne did appeale to all men that understood the French and upon the 7. Statutes did conclude that their Declaration remained an undoubted truth not controlled by any thing said to the contrary Sir Edward Littletons Presidents The true Copies of the Records not printed which were used on either side of that part of the Debate Inter Record Domini Regis Caroli in Thesaurario Recept Scacarij sui sub custodia Thesaurar Camerar ibidem remanent viz. pl. Coram ipso Domino Rege consilio suo ad Parliamentum suum post Pasch apud London in Maner ' Arch-Episcopi Ebor ' Anno Regni Domini Regis Ed. 3. 21. inter alia sic continetur ut sequitur Rot. 2. indorso STephanus Rabaz Vicecomes Leic. Warw. coram ipso Domino Rege ejus Concilio arenatus ad Rudom positus de hac quod cum I. B. E. H. W. H. nuper balliv ' ipsius Vicecomitis per Dom. Regem fuissent assign ' ad Gaolas Domini Regis deliberand eidem vic' quendam W. P. per quendam appellatorem ante adventum eorum Justiciariorum ibidem appellat capt vivente ipso appellatore usque diem deliberationis coram eis fact demissat per pleviam contra formam Statuti
the prisoner was not committed by the immediate command of the King but by the command of the Lord Chamberlaine and thence as it was said they made this rule but this kind of interpretation is the first that ever was supposed that Judges should take notice of the truth or falshood of the return otherwise then the body of the returne could informe them And the rule it selfe speakes plainly of them sufficiencie onely and not of the truth or falshood of it Emersons Case The seventh of these is the case of Iames Desmaistres Edward Emerson and some others that were brewers and were committed to the Marshalsea of the Houshold per mandat Dom. Regis and so returned upon habeas corpus and it is true that the roll shewes that they were remanded but the remanding was onely upon advisement and indeed the grave and upright Judges of the time were so carefull least upon the entry of the remanding any such mistake might be as might perhaps mislead posterity in so great a point that they would expresly have this word immediate added to the Remittitur that so all men that should meet with the roll might see that it was done for the present onely and not upon any debate of the question And besides that there is no quousque to it which is usually added when the highest award upon debate or resolution of this kind is given by them 12. Iam Sir Samuel Saltonstalls Case The eighth of these is the Case of Saltonstall it is Hill 12. Iac. Sir Samuel Saltonstall was committed to the Fleet per mandatum Dom. Regis and besides by the Court of Chauncery for disobeying an order of that Court and is returned upon his habeas corpus to be therefore detained And it is true that a Remittitur is entred in the roll but it is onely a remittitur prisoner prodict ' without quousque secundum legem de liberatus fuerit and in truth it appeares on the Record that the Court gave the Warden of the Fleet three severall dayes at severall times to amend his returne and in the interim remittitur persone pred' Certainly if the Court had thought that the returne had beene good they would not have given so many severall dayes to have amended it for if that Mandatum Dom. Regis had beene sufficient in the Case why need it to have been amended 13. Iac. Sir Samuel Saltonstalls Case The ninth and last of these is Tr. 13. Iac. Rot. 71. The Case of the same Sir Samuel Saltonstall he is returned by the Warden of the Fleet and in the Case before and generally remittitur is in the roll which proves nothing at all that therefore the Court thought he might not by law be inlarged and besides in both cases hee stood committed also for disobeying an order in the Chauncery These are all that have beene pretended to the contrary in this great point and upon the view of them thus opened to our Lordships it is plaine that there is not one not so much as one at all that proveth any such thing as that persons committed by the command of the King or the Lords of the Counsell without cause shewed might not be enlarged but indeed the most of them expresly prove rather the contrary Now my Lords having thus gone through the Presidents of Record that concerne the point of either side before I come to the other kind of Presidents which are the solemne resolutions of Judges in former times I shall as I am commanded also by the House of Commons represent unto your Lordships somewhat else they have thought very considerable with which they met whilst they were in a most carefull enquiry of whatsoever concerned them in this great question It is my Lords a draught of an entry of a judgement in that great case lately adjudged in the Court of Kings Bench when divers Gentlemen imprisoned per speciale mandatū Dom. Regis were by the award and order of the Court after solemne debate sent back to prison because it was expresly said they could not in Justice deliver them though they prayed to be bayled The case is famous and well knowne to your Lordships therfore I need not further to mention it as yet indeed there is no judgement entred upon the Roll but there is room enough for any kind of judgement to be entred But my Lords there is a forme of a judgement a most unusuall one such a one as never was in any such case before for indeed there was never before any Case so adjudged and thus drawne upon by a chiefe Clerk of that Court by direction of M. Attorney generall as the House was informed by the Clerk in which the reason of the judgement and remanding of those Gent. is expressed in such sort as if it should be declared upon Record for ever that the Lawes were that no man could ever be inlarged from imprisonment that stood committed by such an absolute command The draught is onely in Sir John Heninghams Case being one of the Gent. that was remanded and it was made for a form for all the rest The words of it are after the usuall entry of a Curia advisare vult for a time That visis retur predict nec non diversis antiquis recordis in Curia hic remaveum consimiles casus continentibus maturaque deliberatione inde prius habita eo quod milla specialis causa captionis sive detentionis pred Iohanis ex primitur sed generalitur quod detentus est in prisona pred' per speciale mandatum Dom. Regis ideo pred' Iohanes remittitur prefat custodi Marr. Hospitii pred' Salvo custodiend quousque c. that is quousque legem deliberatus fuerit And if that Court that is the highest for ordinary Justice cannot deliver him secundem legem What law is there I beseech you my Lords that can be sought for in any other inferiour Court to deliver him Now my Lords because this draught if it were entred in the Roll as it was prepared for no other purpose would be as great a declaration contrary to the many Acts of Parliament already cited contrary to all Presidents of former times and to all reason of Law to the utter subversion of the highest liberty and right belonging to every free man of this Kingdome and for that especially also it supposes that divers ancient Records had been looked into by the Court in like cases by which Records their judgements were directed whereas in truth there is not any one Record at all extant that with any colour not so much indeed as with any colour warrants the judgement therefore the House of Commons thought fit also that I should with the rest that hath beene said shew this draught also to your Lordships I come now to the other kind of Presidents that is solemne resolutions of Iudges which being not of Record remaine onely in authentique copies but of this kinde there is but one in this case that is
c. had not followed and that these words were void according whereunto here also per mandat Dom. Regis nunciat per Robertū Pecke had bin wholly omitted and void likewise in truth in that late Case this case of Parker was cited both at the Bar and at the Bench and at the Bench it was interpreted by the Judges no otherwise then if it had beene only per mandatum Dom. Regis in this place of it But the objection there was made of another kind as was delivered in the first Argument made out of Presidents in behalfe of the house of Commons Then for the second objection touching the course of enumeration of the causes in the returne it was said that however in some acts of Parliament and else-where in the solemne expression used in the Law things of greater nature precede and the lesse follow Yet in this case the contrary was most plaine for in the return there appeares that there were three causes of deteyning the prisoner surety of the peace suspition of felonie and the Kings command and suretie of the peace is first mentioned which is plainly lesse then felonie therefore it is as plaine that if any force of Argument be here to be taken from this enumeration the contrary to that which Master Attorney inferred is to be concluded that is that as felonie is a greater cause then Suretie of the Peace so the matter whereupon the Kings command was grounded was greater then the felonie But in truth this kind of Argument holds neither way here And whatsoever the cause were why the King committed him it was impossible for the Court to know it And might also have been of very high moment in matter of State and yet of farre lesse nature then felonie all which shewes that this President hath its full force also according as it was first used in Argument by the house of Commons 35. H. 8. Bincks case cite ante 36. 56 objections hors de ceo To the third of these which is Bincks Case in 35. H. 8. Rot. 35. the Objection was that there was cause expressed pro suspitione feloniae and though pro alijs causis illos moventibus were added in the returne yet because in the course of enumeration the generall name of alia comming after particulars includes things of lesse nature then the particular doth therefore in the Case suspition of felonie being the first the other causes generally mentioned must be intended of lesse nature for which the prisoner was bay leable for the greater which was suspition of felonie Rns al dit obiection Hereunto it was replied that the Argument of enumeration on in these cases is of no moment and is next before shewed and that although it were of any moment yet the aliae causae though lesse then felonie might be of very great consequence in matter of State which is pretended usually upon generall returnes of command without cause shewed And it is most plaine that the Court could not possibly know the reasons why the prisoner here was committed and yet they bay led him without looking further after any unknowne thing under that tytle of matter of State which might as well have been in this Case as in any other whatsoever 2. 3. P. M. Overtons case Et 4. et 5. P. M. Newports case cite ante fo 36. et 37. Et les objections la rnde le Record de ceux vide ante fo 37. et 38. To the fourth of these which is Overtons Case en Pas 2. 3. P. et Mar. rot 58. and to the fifth which is Newports Case Pas 4. 5. P. Mar. rot 45. onely these observations were said over againe by Master Attorney which were moved in the Argument made out of the Presidents in the behalfe of the house of Commons at the first conference and in the same Argument were fully and cleerely satisfied as they were now againe in like manner 9. El. Lawrences case et eodem Anno Constables case cite devant fo 38. et 56. To the sixth which is Lawrences Case in 9. El. rot 35. and to the seventh which is Constables Case Pas 9. El. Rot. 68. the same objections were likewise said over againe by Master Attorney that are moved and clearly and fully answered in the Argument made at the last Conference out of Presidents in the behalfe of the house of Commons The force of the Objection being only that it appeared in the margin of the Roll that the word Pardon was written but it is plaine that the word there hath no reference at all to the reason why they are bayled nor could have reference to the cause why they were committed is utterly unknowne and was not shewed 20. El. Brownings case cite devant fo 38. et 56. To the eighth which is Brownings Case in Pas 20. El. Rot. 72. it was said by Master Attomey that he was bayled by a Letter from the Lords of the Counsell directed to the Judges of the Court but being asked for that Letter or any testimony of it he could produce none at all but said he thought the testimony of it was burnt amongst many other things of the Counsell table at the burning of the Banquetting house 40. El. Harecourts case cite devant fo 39. To the ninth being Harecourts Case Pas 40. El ' Rot. 620. the selfe-same objection was made by him but no warrant was shewed to maintaine his objection 43. El. cite devant fo 39. Catesbies case Object a ceo To the tenth which is Catesbies Case in vacatione Hill 43. El. he said that it was by direction of a Privie Seale from the Queene and to that purpose he shewed the Privie Seale of 43. El. which is at Charge among the transcript of the Records concerning bayles taken in Cases when the King or the Lords of the Counsell assented Rns a ceo But it was replied that the Privie Scale was made only for some particular Gentleman mentioned in it and none other as indeed appeares in it And then he said that it was likely that Catesby here had a privie Seale in this behalfe because those other had so which was all the force of his objection 12. Iac. Backwiths case cite devant fo 39. 58. Objection a ceo To the 11 which is Beckwiths Case in Hill 12. Iac. Rot. 183. He said the Lords of the Counsell sent a letter to the Court of Kings Bench to bayle him and indeed hee produced a letter which could not by any meanes be found when the Arguments were made at the first conference And this Letter and a Copie of an obscure report made by a young Student that was brought to another purpose as is hereafter shewed were the onely things written of any kinde that M. Attorney produced besides the particular shewed by the House of Commons at the first conference Rns al objections To this it was replied that the letter was of no moment being onely a direction to the chiefe