Selected quad for the lemma: kingdom_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
kingdom_n	common_a	expectation_n	great_a	51	3	2.1015	3	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A75552	The arguments upon the writ of habeas corpus, in the Court of Kings Bench. Wherein, are learnedly discussed, not onely the severall branches of the said writ, but also many authorities as well of the common as statute law: and divers ancient and obscure records most amply and elaborately debated and cleared. Together, with the opinion of the court thereupon. Whereunto is annexed, the petition of Sir Iohn Elliot Knight, in behalf of the liberty of the subject.	Eliot, John, Sir, 1592-1632.; England and Wales. Court of King's Bench.	1649 (1649)	Wing A3649; Thomason E543_1; ESTC R204808	64,168	98

Lord I say that if it had all been left out and he had onely said Detentus fuit per speciale mandatum domini Regis it had been sufficient but when he doth more it is superfluous and not necessary for it appeared before by whom he was committed and when he returns the Warrant of the Lords of the Councell it is not their words that commit him but they being the Representative Body of the King they doe expresse what the Kings command is but they signifie nothing of their own and therefore I desire your Lordship to deliver your opinion in that point of the Return whether it be positive or no. This cause as it greatly concerns the Subjects so it much concerns the King too I am sorry there should be any occasion to bring these things in question but since it is now here I hope I shall give satisfaction to your Lordship and to the parties too and I desire that I may have Munday for it Hide Chief Justice I think it is not best for us to declare our opinions by peece-meals but upon all the case together and as well as you are a stranger to the Return so are we and there be many presidents and Acts of Parliament not printed which we must see Doderidge This is the greatest cause that ever I know in this Court our Judgements that we give between party and party between the King and the meanest Subject ought to be maturely advised on for so are the entries of our judgements Quod matura deliberatione habita It was judged c. And we must see the presidents and Acts of Parliament that we hear mentioned Justice Jones Master Atturney if it be so that the Law of Magna Charta and other Statutes be now in force and the gentlemen be not delivered by this Court how shall they be delivered apply your self to shew us any other way to deliver them Doderidge Yea or else they shall have a perpetuall imprisonment Per Curiam Munday was appointed for the Atturneys Argument and in the interim the Councell for the gentlemen were by order appointed for to attend the Judges with all the presidents and unprinted Statutes which they mentioned and that they should let the Atturney see them also And the gentlemen being asked if they desired to come again answered they did and a Rule was entred for it On Munday the 27 of Tertio Michaelis 3º Caroli Regis in Banco Regis Sir John Corbet Sir Walter Earle Sir Edmund Hampden and Sir John Henningham Knights were brought to the Barre Heath Atturney Generall MAY it please your Lordship these gentlemen Sir Walter Earle Sir John Corbet Sir Edmund Hampden and Sir John Henningham upon their motion to this Court to have their Habeas Corpus and that themselves and the cause of their detaining them in their severall Prisons might be brought before your Lordship had it granted to them My Lord at the first motion of it the knowledge thereof of comming and that they had such a desire his Majesty was very willing to grant unto them as to all his Subjects this common case of Justice and though it be a case which concerns himself in a high degree yet he hath been so gracious and so just as not to refuse to leave the examination and determination thereof to the Laws of this Kingdome My Lord it is very true that this is a very great Cause and hath raised a great expectation and for the manner of it more then was necessary but my Lord I am afraid these gentlemen whom it concerns have rather advised their Councell then their Councell them but I shall take the case as now I finde it and as the gentlemens Councell on the other side have led me the way to it My Lord the exceptions that have been taken by the Councell on the other side to the Return made by the Warden of the Fleet and the rest of the Guardians of severall Prisons have been two for renewing of your Lordships memory we will read one of the Returns they are all alike Then the Return was read for Sir John Henningham by Master Keeling Heath Atturney May it please your Lordship against this Return the Councell of the Gentlemen have taken some exceptions and have divided their objections into two main points The one the form the other the matter To the form they have objected four severall things First that the Return is not positive but referred to the signification made by another as the Lords of the Councell Secondly that the Keepers of the Prisons have not returned the cause of the commitment but the cause of the cause which is not good Thirdly that the Return is imperfect for that it shews onely the cause of the detaining in Prison and not the cause of the first commitment And lastly that the Return is contradictory in it self for that in the first part thereof there is a certification that the detaining of these gentlemen in prison is Per speciale mandatum domini Regis and when the Warrant of the Lords of the Councell is shewed it appears that the commitment is by the command of the King signified by the Lords of the Councell and by your Lordships favour I will give a severall answer to every of these severall objections And for the first that the Return is not positive and affirmative but depends upon and hath relation to some other and therefore it is not good I doe agree that the ground is true that if the Return be not positive it is not good we differ onely in the Minor That the Return is not positive and affirmative for I agree that these Book cases that have been put are good Law as 27 Ass pl. 65. that if the Sheriffe return that he hath sent to the Bailiffe of the hundred and he gives him that answer that is no good Return for the Sheriffs ought to make the Return as of his own act without naming of the Bailiffe of the Hundred in his Return for if he return Quod mandavi Ballivo itineranti qui habet Retorn omnium Brevium executionem eorund per Cartam domini Regis qui mihi dedit nullum Responsum this is not good if he were not Bailiffe of a Franchise or Signiory for so is 21 H. 7. fol. 4. There hath been cited to maintain these objections 20 Ed. 3. the Record I have perused and there I finde that the Bishop said that it is found in Archivis in the Record c. that he was excommunicated but it was found to be in Archivis c. and that is no positive return that it is so I will oppugne what hath been said by the Councell on the other side it must be granted that if the return here be not positive it is imperfect and in 5 H. 7. 28. it is said that an imperfect return is no return at all it is all one but if the return was so that was not much materiall for then it were

Lordship and all others but the parties themselves for I except them My Lord the great and mighty reason that they insisted upon was the inconveniences that might come to the subjects in their liberties if this Return should be good and this reason they inferred out of Records and Books of the Common Law which gives the liberty of the subjects I doe acknowledge that the liberty of the subject is just and that it is the inheritance of the subject but yet it is their inheritance secundum legem terrae My Lords they put many cases likewise to enforce it 1 2 Eliz. Dier fo 175. that the continuance of a Capias shall bee from Term to Term without Term betwixt because otherwise the party defendant may be kept too long in prison and 38 Ass pl. 22. Broke tit Imprisonment 100. that imprisonment is but to detaine the party till he have made fine to the King and therefore the King cannot justly detain him in prison after the fine tendred and 16 H. 6. monstrans de faictz 182. if the King command me to arrest a man and thereupon I doe arrest him he may have an action of false imprisonment or of trespasse against me though it be done in the Kings presence and 1 H. 7. 4. the discourse of Hussey where he saith that Sir John Markham delivered unto King Edward the fourth that hee should not arrest upon treason or felony any of his subjects because hee could not wrong his subjects by such arrest for they could not have remedy against him Prerogative Br. 139. These my Lord are the causes that they insisted upon for this purpose To the two first I shall give but one answer which is that the restraint in these two cases and most of the other cases before cited appears to be in the ordinary course of Judicature fit for Westminster Hall and not for the Kings Councell Table A writ of Capias was the first originall of it and therefore not to be applied to the cause of ours And for the other two cases the law presumeth that the active part of them is not so proper for the Majesty of a King who ever doth these things by his subordinate Officers But that the subject should not be committed by the King was never heard of for the King may commit any man at his pleasure but that is not our case but whether when the King hath committed one he must render a cause of that commitment that it may appear whether the party be bailable or not or else the party must be delivered The Book 9 E. 3. fol. 16. pl. 30. cited of a Cessavit the King having by Proclamation commanded that in the County of Northumberland no Cessavit should be brought c. during the war the tenant pleadeth this command and it was denyed him and he that notwithstanding was commanded to plead but the reason thereof was because the commandment thereof was given by E. 2. who being dead the commandment was determined The Book of Edward the third 4. fol. 16. is indeed where the commandment was given by the same King and that was likewise denyed him for the King cannot command your Lordship to any other Court of Justice to proceed otherwise then according to the Laws of this kingdome for it is part of your Lordships oath to judge according to the Law of the kingdome But my Lord there is a great difference between those legall commands and that absolute Potestas that a Soveraign hath by which a King commands but when I call it absoluta potestas I doe not mean that it is such a power as that a King may doe what he pleaseth for he hath rules to governe himself by as well as your Lordship who are subordinate Judges under him the difference is the King is the head of the same fountaine of Justice which your Lordship administers to all his subjects all Justice is derived from him and what he doth he doth not as a private person but as the Head of the Common-wealth as Iusticiarius Regni yea the very essence of Justice under God upon earth is in him and shall not wee generally not as subjects onely but as Lawyers who governe themselves by the rules of the Law submit to his command but make inquiries whether they be lawfull and say that the King doth not this or that in course of Justice If your Lordship sitting here shall proceed according to Justice who calleth your actions in question except in your own Judgements you see some errour in the proceeding and then you are subject to a writ of Errour But who shall call in question the Actions or the Justice of the King who is not to give any account for them as in this our case that he commits a subject and shews no cause for it The King commits and often shews no cause for it is sometimes generally Per special● mandatum domini Regis sometimes Pro certis causis ipsum dominum Regem moventibus but if the King doe this shall it not bee good it is all one when the commitment is Per speciale mandatum domini Regis and when it is Pro certis causis ipsum dominum Regem moventibus and it is the same if the commitment be Certis de causis ipsum dominum Regem tangentibus And my Lord unlesse the Return to you doth open the secrets of the commitment your Lordship cannot judge whether the party ought by Law to be remaunded or delivered and therefore if the King allow and give warrant to those that make the Return that they shall expresse the cause of the commitment as many times he doth either for suspition of felony or making money or the like we shall shew your Lordship that in these causes this Court in his Jurisdiction were proper to try these criminall causes and your Lordship doth proceed in them although the commitment be Per speciale mandatum domini Regis which hath not secret in it in these causes for with the warrant he sendeth your Lordship the cause of the committing and when these warrants are made and brought into this Court your Lordship may proceed but if there be no cause expressed this Court hath always used to remaund them for it hath been used and it is to be intended a matter of State and that it is not ripe nor timely for it to appear My Lord the main fundamentall grounds of Arguments upon this case beginnes with Magna Charta from thence have grown states for explanation thereof severall Petitions of Parliament and Presidents for expedition I shall give answers to them all For Magna Charta in the 29 Chapter hath these words No Free-man shall be taken nor imprisoned or disseised of his freehold liberties nor free customes nor be outlawed or exiled nor any other way destroyed nor we will not passe upon him nor condemn him but by lawfull Judgement of his Peers or by the Law of the Realm My Lord this statute

from the Subject not in Parliament which they held to be grievances contrary to their Liberties and illegall And so pious were their Princes in confirmation of their Liberties as having secured them for the present by such frequent Laws and Statutes they did likewise by them provide for their posterity and in some so strictly that they bound the observation with a curse as in that of 33 Edw. 1. and also under pain of excommunication as by the other of the 25 of the same King which was to be denounced against all those that violate or break them which Act extends to us And these reasons he presents to your most sacred Majesty as the first motive taken from the Law There are others also which in his humble apprehension he conceived from the Action it self which he likewise tenders to your most excellent Wisdome reason 1 First that the carriage and instructions accompanied with the Authority of the great Seal imported a constraint such requests to Subjects being tacite and implied commands and so preventing that readinesse and love which in a free way would have farre exceeded those demands whereas the wonted Aids given to your happy Ancestors were ex spontanea voluntate charitate populi whereby they made that conjunction of their hearts at home which wrought such power and reputation to their Acts abroad reason 2 Whereas the firmest obligation of that readinesse and love is the benignity of Princes giving and preserving to their people just and decent Liberties which to this Kingdome are derived from the Clemency and Wisdome of your Progenitors to whom there is owing a sacred memory for them he could not as he feared without pressure to these immunities become an actor in this Loan which by imprisonment and restraint was urged contrary to the Graunts of the great Charter by so many glorious and victorious Kings so many times confirmed being therein most confident of your Majesty that never King that raigned over us had of his own benignity and goodnesse a more pious disposition to preserve the just liberties of his Subjects then your sacred self Chart. Libert 9 H. 5. confirmed 25 E. 1. 1 4 5 10 14 28 31 36 42 45 50 E. 3. 1 2 3 4 7 9 13 H. 4. 4 H. 5. 2 H. 6. c. reason 3 Though we were well assured by your Majesties Royall promise whose words he holds as Oracles of truth that it should not become a president during the happinesse of your Raign the long continuance whereof is the daily subject of his prayers yet he conceived from thence a fear that succeeding ages might thereby take occasion for posterity to strike at the propriety of their goods contrary to the piety and intention of your Majesty so graciously exprest And these being the true grounds and motives of his forbearance to the said Loan shewing such inconveniences in reason and representing it an Act contradicting so many of your Laws and most of them by the most prudent and happy of our Princes granted which could not without presumption beyond pardon in your suppliant in taking to himself the dispensation of those Laws so piously enacted by him violated or impeached In the fulnesse of all submission and obedience as the Apology of his loyalty and duty he lowly offers to your most sacred Wisdome for the satisfaction of your Majesty most humbly praying your Majesty will be graciously pleased to take them into your Princely consideration where when it shall appear as he doubts not but from hence it will to your deep judgement that no factious humour nor disaffection led on by stubbornnesse and will hath herein stirred or moved him but the just obligation of his conscience which binds him to the service of your Majesty in the observance of your Laws he is hopefull presuming upon the Piety and Justice of your Majesty that your Majesty according to your innate Clemency and Goodnesse will be pleased to restore him to your favour and his liberty and to afford him the benefit of those Laws which in all humility he craves FINIS