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
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
particularly leaving the reasons of law and presidents for others to give your Lordships satisfaction that this libertie is established and confirmed by the whole State the King the Lords spirituall and temporall and Commons by severall Acts of Parliament the authoritie whereof is so great that it can receive no answer save by interpretation or repeale by future Statutes And those that I shall mind your Lordships of are so direct in point that they can beare no other exposition at all and sure I am they are still in force The first of them is the grand Charter of the Liberties of England first granted in the seventeenth yeare of King John and renewed in the ninth yeare of Henry the third and since confirmed in Parliament above 30. times the words there are Chap. 29. Nullus liber homo capiatur vel imprisonetur aut disseisietur de libero tento suo vel liberis consuetudinibus su is aut utlageretur aut exuletur aut aliquo modo destruatur nec super eum ibimus nec super eum mittemus nisi per legale judicium parium suorum vel per legem terrae These words nullus liber homo c. are expresse enough yet it is remarkable that Mathew Paris an Authour of speciall credit doth observe fol. 432. that the Charter of 9. H. 3. was the very same as that of 17. King John in nullo dissimilis are his words and that of King Iohn he setteth downe verbatim Fo. 342. and there the words are directly Nec eum in Carcerem mittemus and such a corruption as is now in the print might easily happen 'twixt 9. H. 3. and 28. of Ed. 1. when this Charter was first exemplified but certainly there is sufficient left in that which is extant to decide this question for the words are that no Free-man shall be taken or imprisoned but by the lawfull judgement of his Peeres which is by a Iurie of Peeres ordinary Iurors for others who are their Peeres or by the law of the Land Which words Law of the Land must of necessity be understood in this notion to be by due Proces of the Law and not the law of the Land generally or otherwise it would comprehend Bond-men whom wee call Villaines who are excluded by the word liber For the generall law of the Land doth allow their Lords to imprison them at their pleasure without cause wherein they only differ from the Free-men in respect of their persons who cannot be imprisoned without a cause And that this is the true understanding of these words per legem terrae will more plainly appeareby divers other Statutes that I shall use which doe expound the Law according And though the words of this grand Charter be spoken in the third person yet they are not to be understood of suites betwixt party and party at least not of them alone but even of the Kings suites against his Subjects as will appeare by the occasion of getting of that Charter which was by reason of the differences betwixt those Kings and their people and therefore properly to bee applied unto their power over them and not to ordinary questions betwixt Subject and Subject Secondly the words per legale judicium parium suorum immediatly preceding the other of per legem terrae are meant of trials at the Kings suit and not at the prosecution of a Subject And therefore if a Peere of the Realme be arraigned at the Suit of the King upon an Indictement of murther he shall be tried by his Peeres but if he be appealed of murther by a Subject his triall shall be by an ordinary Jury of 12. Freeholders as appeareth in 10. Ed. 4. 6. 33. H. 8. Brooke title trials 142. Stan. Cor. li. 3. ca. 1. fol. 152. and in 10. Ed. 4. 6. it is said such is the meaning of Magna Charta for the same reason Sinor indite ferra trie per pares auterment si soit appeale Br. tit Corone 153. nota bien Therefore as per judicium parium suorum extends to the Kings Suit so shall these words per legem terrae And in 8. Ed. 2. rot parliament membrana 7. there is a Petition that a Writ under the privie Seale went to the Guardians of the great Seale to cause lands to bee seized into the Kings hands by force of which there went a Writ out of the Chancery to the Eschetor to seize against the forme of the grand Charter that the King nor his ministers shall out no man of his Freehold-without reasonable judgement and the party was restored to his land which sheweth the Statute did extend to the King There was no invasion upon this personall libertie till the time of King Ed. 3. which was eftsoone resented by the Subject for in 5. Ed. 3. ca. 9. it is ordained in these words Sta. 5. Ed. 3. 9. It is enacted that no man from henceforth shal be attached by any occasion nor fore-judged of life or limbe nor his lands tenements goods nor chattels seized into the Kings hands against the forme of the great Charter and the law of the Land 25. Ed. 3. cap. 4. Sta. 15. Ed. 3. 4. It is more full and doth expound the words of the grand Charter and is thus Whereas it is conteined in the grand Charter of the franchises of England that none shall be imprisoned nor put out of his freehold nor free custome unlesse it be by the law of the Land It is awarded assented and established that from hence none shall bee taken by Petition or Suggestion made to our Lord the King or to his Counsell unlesse it be by Inditement or presentment of his good and lawfull people of the same neighbourhood which such Deeds shall be done in due manner or by Proces made by Writ originall at the Common law nor that none be Out of his Franchises nor of his Freehold unlesse he be duly brought in answer and fore-judged of the same by the course of the law and if any thing be done against the same it shall be redressed and holden for none Out of this Statute I observe Lex terre expound ê‘ proces dée faict ê‘ bre original al coÌ„mon ley that what in Magna Charta and the preamble of the Statute is tearmed by the law of the Land is in the body of this Act expounded to bee by Proces made by Writ originall at the Common law which is a plain interpretation of the words Law of the Land in the grand Charter And I note that the Law was made upon the commitment of divers to the Tower no man yet knoweth for what 28. Ed. 3. cap. 3. Sta. 28. Ed. 3. ca. 3. It is more direct this libertie being followed with fresh Suit by the Subject where the words are not many but very full and significant That no man of what state or condition he be shall be put out of his lands nor tenements nor taken nor imprisoned nor dis-inherited nor put to
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
he renders taken by the command of of the Justices thus per judicium Justiciariorum and his Preface to the Statute plainly sheweth that he understood it of replevine by Sherifs for he saith Qui debent per plegios hoc dimitti qui non declarat hoc Statutum and per plegios is before the Sherife But for direct authority 22. H. 6. 46. ê‘ Newton Chiefe Iustice it is the opinion of Newton Chiefe Justice 22. H. 6 46. where his words are these It cannot be intended that the Sherife did suffer him to goe at large by Mainprise for where one is taken by the Writ of the King or the Commandement of the King he is irrepleviseable but in such case his friends may come to the Justices from him if he be arrested and purchase a Supersedeas This Judge concludes that the Sherife cannot deliver him that is taken by the command of the King for that he is irrepleviseable which is the very word of the Satute but saith he his friends may come to the Justices and purchase a Supersedeas So he declares the very question that the Sherife had no power but the Justices had power to deliver him that is committed by the Kings command and both the ancient and moderne practise manifest as much for he that is taken for the death of a man or for the Forrest is not repleviable by the Sherife yet they are ordinarily bayled by the Justice and were by the Kings Writs directed to the Sherifs in the times of Ed. 1. and 2. as appeares in the close rolls which could not be done if they were not baylable And it is every dayes experience that the Justices of the Kings Bench doe bayle for Murther and for offences done in the Forrest which they could not doe if they were irrepleviseable if Westminst 1. were meant of the Justices aswell as of the Sherifs For authorities that have beene offered to prove the contrary are in number three the first is 21. Ed. 3. Rot. 2. which also is in the Booke of Pleas in Parliament at the Tower upon an action there brought 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 Rabaz the Sherife of the Counties of Leicester and Warwicke was questioned for that he had let at large by Surety amongst others one William the sonne of Walter le Pesons against the will and command of the King whereas the King had commanded him by Letters under the Privie Seale that he should doe no favour to any man that was committed by the Earle of Warwicke as that man was whereunto the Sherife answered that he did it at the request of some of the Kings houshold upon their Letters and because the Sherife 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 the Sherife was justly punished for that he is expresly bound by the Statute of Westminst 1. which was agreed from the beginning but this is no proofe that the Iudges had no power to bayle this man The next Authority is 33. H. 6. in the Court of Common Pleas fo 28. b. 29. where Sobert Poyning Esquire was brought to the Barre upon a Capias and was returned that he was committed Per Duos de Consilio which is strongest against what I maintaine pro diversis causis regem tangent and he made an Attorney there in an action whence it 's inferred that the returne was good and the party could not be delivered To this the answer is plaine First no opinion is delivered in that booke one way or other upon the returne neither is there any testimony whether he were delivered or bayled or not 2. It appeares expresly that he was brought thither to be charged in an action of debt at another mans suit and no desire of his owne to bee delivered or bayled and then if hee were remanded it is in no way materiall to the question in hand But that which is most relied upon is the opinion of Stan. in his Booke of Pleas of the Crowne lib. 2. cap. 18. fol. 72. 73. in his Chapter of Mainprise where hee reciteth the Statute of Westminst 1. cap. 15. and then saith thus Rns al Obi. hors de Stan. pl. Cor ' 72. By this Statute it appeares that in foure cases at the Common law a man was not repleaviable to wit those that were taken for the death of a man by the command of the King or his Justices or for the Forrest thus farre he is most right then hee goeth on and saith as to the command of the King that is understood by the command of his owne mouth or his counsell which is incorporated unto him and speake with his mouth or otherwise every Writ or Capias to take a man which is the Kings command would be as much and as to the command of the Juces that is meant their absolute commandment for if it bee by their ordinary commandment he is repleviable by the Sherife if it be not in some of the cases prohibited by the Statute The answer that I give unto this is that Stanford had said nothing whether a man may be committed without cause by the Kings command or whether the Judges ought not to bayle him in such Case only that such a one is not repleviseable which is agreed for that belongs to the Sherife And because no man should thinke he meant any such thing hee concludes the whole Sentence touching the Command of the King and the Justices that one committed by the ordinary command of the Justice is repleviseable by the Sherife or at least it appeares not that he meant that a man committed by the King or by the Privie Counsell without cause should not be bayleable by the Justices and he hath given no opinion in this case what he would have said if he had beene asked the question cannot be knowne neither doth it appeare that by any thing that hee hath said hee meant any such thing as would bee inferred out of him And now my Lords I have performed the Commands of the Commons and as I conceive shall cleare the Declaration of personall libertie an antient and undoubted truth fortified with seven Acts of Parliament and not opposed by any Statute or authoritie of law whatsoever The objections of the Kings Counsell with like answers made thereunto at the two other Conferences touching the same matter IT was agreed by the Attorney generall that the 7. Statutes urged by the CoÌ„mons were in force and that magna Charta did extend most properly to the King but he said 1. Object 1. That some of them are in generall words and therefore conclude nothing but are to be expounded by the Presidents and others that bee more particular are applied to the Suggestions of Subjects and not to the Kings command simply of
law divers remedies for inlarging of a Free-man imprisoned as the writts of Odio Atia and of Homine replegiando besides the common or most knowne Writs of Habeas Corpus or Corpus cum causa as it is called also The first two Writs are to be directed to the Sherifs of the County and lie in some particular Cases with which it would be untimely for me to trouble your Lordships because they concerne not that which is committed to my charge But that Writ of Habeas Corpus or Corpus cum causa is the highest remedie in Law for any man that is imprisoned and the only remedie for him that is imprisoned by the speciall command of the King or the Lords of the Privie Counsell without shewing cause of the commitment neither is there in the law any such thing nor was there ever mention of any such thing in the Lawes of this Land as a Petition of right to be used in such cases for libertie of the person nor is there any legall course for inlargement to be taken in such cases howsoever the contrary hath upon no ground or colour of law beene pretended Now my Lords if any man be so imprisoned by any such command or other wise in any prison whatsoever through England and desire by himselfe or any other in his behalfe this Writ of Habeas Corpus for the purpose in the Court of the Kings Bench the Writ is to be granted to him and ought not to be denied him no otherwise then another ordinary originall Writ in the Chancery or other common Proces of law may be denied which amongst other things the House resolved also upon mature deliberation and I was commanded to let your Lord sh know so much This Writ is directed to the Keeper of the Prison in whose custodie the prisoner remaines commanding him that after a certaine day he bring in the body of the prisoner ad Subiiciend recipiend juxta quod curia conceda verit c. una cum causa Captionis detentionis and oftentimes una cum causa detentionis only captionis being omitted The Keeper of the prison therupon returns by what warrant he detaines the prisoner and with his returne filed to his Writ brings the prisoner to the Barre at the time appointed When the returne is thus made the Court judgeth of the sufficiency or insufficiency of it only out of the body of it without having respect to any other thing whatsoever that is they to suppose the returne to be true whatsoever it be if it bee false the prisoner may have his action on the Case against the Gaoler that brought him Now my Lords when the prisoner comes thus to the Barre if he desire to be bayled and that the Court upon the view of the returne thinke him in Law to bee bayleable then he is alwayes first taken from the keeper of the Prison that brings him and committed to the Marshall of the Kings Bench and afterwards bayled and the entry perpetually is Committitur Mariscallo postea traditur in Ball ' for the Court never bayles any man untill he first become their owne prisoner and be in Custodia Marriscall ' of that Court But if upon the return of the Habeas Corpus it appeare to the Court that the prisoner ought not to be bayled nor discharged from the prison whence he is brought then he is remanded or sent back againe there to continue untill by course of law he may be delivered and the entrie in this Case is Remittitur quousque secundum legem deliberatus fuerit or Remittitur quousque c. which is all one and the highest award or judgement that ever was or can be given upon a Habeas Corpus But if the Judges doubt only whether in Law they ought to take him from the prison whence he came or give a day to the Sherife to amend his Writ as often they doe then they remaund him only during the time of their doubte or untill the Sherife hath amended his returne and the Entrie upon that is Remittitur only or Remittitur prisonae praed without any more And so remittitur generally is of farre lesse moment in the award upon the Habeas Corpus then remittitur quousque c. howsoever the vulgar opinions raised out of the late Judgement be to the contrary All these things are of most knowne and constant use in the Court of Kings Bench as it cannot be doubted but your Lordships will easily know from the grave and learned my Lords the Judges These two courses the one of the entrie of Committitus Marescall postea traditur in Ballium and the other remittitur quousque c. Remittitur generally or Remittitur prisonae pred together with the nature of the Habeas corpus thus stated it will bee easier for me to open and your Lordships to observe whatsoever shall occurre to the purpose in the Presidents of record to which I shall come now in the particular But before I am come to the Presidents I am to let you know the resolutions of the house of Commons touching the inlargement of a man committed by the command of the King or the Privie Counsell or any other without cause shewed of such commitment it is thus That if a Freeman be committed or detained in prison or otherwise restrained by the command of the King the Privie Counsell or any other and no cause of such commitment deteiner or restraint to be expressed for which by law he ought to be committed detained or restrained and the same be returned upon a Habeas Corpus granted for the party then he ought to be delivered and bayled This resolution as it is grounded upon the Acts of Parliament already shewen and the reason of the law of the Land which is committed to the charge of another and anon also to be opened to you is strengthened also by many Presidents of Record But the Presidents of Record that concerne this point are of two kinds for the House of Commons hath informed it selfe of such as concerne it either way The first such as shew expresly that persons committed by the command of the King or of the Privie Counsell without other cause shewed have beene inlarged upon bayle when they prayed it whence it appeareth cleerely that by the law they are bayleable and so by Habeas Corpus to bee set at libertie for though they ought not to have beene committed without a cause shewed of the commitment yet it is true that the reverend Judges of this Land did such respect to such commitments by the command of the King or of the Lords of the Counsell as also to the commitment sometimes of inferiour persons that upon the Habeas Corpus they rarely used absolutely to discharge the persons instantly but only to enlarge them upon Bayle which sufficiently secures and preserves the liberty of the Subject according to the lawes that your Lordships have already heard nor in any of the cases
those of the second kind or such as are pretended that persons so committed are not to be inlarged by the Iudges upon the habeas corpus brought but to remaine in prison still at the command of the King or the privie Counsell Presidents del 2. sort vouch ê‘ le Roy. These are of two natures the first of these are where some assent of the King or the privie Counsell appeares upon the inlargement of a prisoner so committed as if that because such assent appeares the inlargement could not have beene without such assent The second of this kind are those which have beene urged as expresse testimonies of the Iudges denying bayle and in such cases I shall open these also to your ships which being done it will most clearely appeare that there is nothing at all in any of these that makes any thing at all against the resolution of the house of Commons touching this point nay it is so farre from their making any thing against it that some of them add good weight also to the proofe of that resolution Temps H. 7 Brugs Case For those of the first nature of this second kind of Presidents they begun in the time of H. 7. Tho. Brugge and divers others were imprisoned in the Kings ad mandatum Dom. Regis they never sought remedy by habeas corpus or otherwise for ought appeares But the Roll sayes that Dominus Rex relaxavit mandatum and so they were bayled But can any man think that this is an Argument either in Law or common reason that therefore they could not have beene bayled without such assent It is common in Cases of common persons that one being in prison for surety of the peace or the like at the suit of another is bayled upon the release of the party plaintiffe Can it follow that therefore he could not have beene bayled without such release nothing is more plain then the contrary It were the same thing to say that if it appeare that if a plaintiff be non suit therefore unlesse he had been non suit he could not have been barred in the suit The Case last cited is Mich. 7. H. 7 rot 6. 7 H. 7. Bartholomews Case The very like is in the same yeare Hill 7. H. 7. Rot. 13. The Case of Will. Bartholomew Will. Chase and divers others and the selfe same answer that is given to the other cleares this 7 H. 7. Beomonds Case So in the same yeare Pas 7. H. 7 rot 18. Iohn Beomonds Case is the same in substance with those other two and the self same answer also satisfies that cleares them 12 H. 7. Yews Case The next Case is Mich. 12. H. 7. rot 8. Tho. Yews Case hee was committed ad sec pacis for the security of the peace at the suit of one Freeman and besides ad mandatum Dom. Regis And first Freeman relaxavit sec pacis and then Sir James Hubbard the then Kings Attomey Generall relaxavit mandatum Dom Regis And hereupon he is bayled the release of the Kings Attomy no more proves that he could not have bin inlarged without such release or assent then that he could not have bin bayled without release of surety of the peace by Freeman 9 H. 7. Bochers Case The very like is in Hill 9. H. 7. rot 14. The Case of Humphry Boch which proves no more here then the rest of this kind already cited 39 Eliza. Broomes case Then for this point also Broomes Case of Queene Elizabeths time is Trim. 39. El. rot 128. Lawrence Broome was committed to the Gatehouse per mandatum Dom. Consilii Dominae Reginae And being returned so upon the habeas corpus is first committed to the Marshalsey as the course is and then bayled by the Court which indeed is an expresse president that might perhaps well have been added to the number of the first 12 which so plainly shew the practise of inlarging prisoners in this Case by judgment of the Court upon the habeas corpus But it is true that in the scrowles of that yeare where the bayles are entred but not in the Record of the Habeas Corpus there was a note that this Broome was bayled per mandatum privati Consilii but plainly this is not any kind of Argument that therefore in law he might not have beene other wise bayled 40 Wendens Case The selfe same is to be said of another of this kind in Mich. 40. El. rot 37. Wendens Case Tho. Wenden was committed to the Gatehouse by the Queene and the Lords of the Counsell procertis causis generally he is brought by Habeas corpus into the Kings Bench and bayled by the Court But it is said that in the Scrowles of that yeare it appeares that his inlargement was pro consensum Dom. privati Consilii and it is true that the Queenes Attorney did tell the Court that the Lords of the Counsell did assent to it Followes it therefore that it could not have beene without such assent 43 Eliz. Next is Hill 43. El. rot 89. when divers Gentlemen of speciall quality were imprisoned by the command of the Privie Counsell the Queen being graciously pleased to inlarge them sends a comandement to the Iudges of the Kings Bench that they should take such a course for the delivering of them upon bayle as they should think fit and they did so and inlarged them upon Writs of hab corpus Followes it therefore that this might not have beene done by law if the parties themselves had desired it Iac. Sir Io. Brockets Case So in Tr. 1 Jac. rot 30. Sir Io. Brocket being committed to the Gatehouse is returned to stand committed pro mandatum pravati Consilii and hee is inlarged virtute warranti a Consilio predicti But the same answer that satisfie for the rest before cited serves for this also 12 Iac. James Reynar Case The last of these is Reynars case in Mich. 12. Iac. rot 119. hee was committed to the Gatehouse by the Lords of the Counsel and being brought into the Kings Bench by Habeas Corpus is inlarged upon bayl but this they say was upon a letter written from one of the Lords of the Counsell to the Iudges It is true that such a letter was written but the answer to the former presidents of this nature are sufficient to cleare this also And in all these observe 1 That it appeares not that the party ever desired to be inlarged by the Court or was denied it 2 Letters either from the King or Counsell cannot alter the law in any case So that hitherto nothing hath beene brought on the coÌ„trary part that hath any force or colour of reasoÌ„ in it Wee come now my Lords to those presidents of the other nature cited against the liberty of the Subject That is such as have beene used to mislike that persons so committed may not be inlarged by the Court. They are in number eight but there is not one
of them that proves any such thing as your Lordships will plainly see uponopening them The first foure of them are exactly in the same words saving that the names of the persons and the prisons differ I shall therefore recite them all one after another and then cleare them together 7 H. 7. Everards Case The first is Richard Everards case Hill 7. H. 7. rot 18. he and others were committed to the Marshalley of the Houshold per mandatum Dom. Regis and so returned upon a habeas corpus into the Kings Bench whereupon the entry is onely Qui committitur Marr. c. 8 H. 7. Cherries Case The second is Hill 8. H. 7. Richard Cherries case he was committed to the Major of Windsor per mandatum Dom. Regis and so returned upon a habeas corpus and the entry is onely Qui committitur Marr. c. 9 H. 7. Burtons Case The third is Hill 9. H. 7. rot 14. Christopher Burtons case who was committed to the Marshalsey of the Houshold per mandatum Dom. Regis and so returned upon his habeas corpus and the entry is likewise Qui committitur Marr. c. 19 H. 7. Vrswicks Case The fourth is George Vrswicks case Pas 19. H. 7 Rot. 19. he was committed to the Sheriffs of London per mandatum Dom. Regis and returned so upon his habeas corpus Qui committitur Marr. c. These foure have beene used principally as expresse presidents to prove that a prisoner so cōmitted cannot be inlarged and perhaps at the first sight to men that know not and observe not the course and entries of the Court of Kings Bench they may be apprehended to prove as much but in truth they rather prove the contrary at least there is no colour in them of any such matter as they have beene used for To which purpose I beseech your Lordships to call to your memories that which I first observed to you touching the course of that Court Where a prisoner is brought in by habeas corpus he is if he be not to be remanded first committed to the Marshall of the Court and then bayled as his case requires This is so certaine as it can never be otherwise Now these men being thus committed expresse command of the King are first you see taken from the prisons whither they were first committed wherein you may observe my Lords that if a generall suspition of matter of State were of force in such a case it might be as needfull in point of State to have the prisoner remain in the prison where the King by such an absolute command committed him as to have him at all committed when they have taken them from the prisons where before they were they commit them to the Marshall of their owne Court which is but the first step to bayling them now it appeares not indeed that they were bayled for then Traditur in Ball. had followed but nothing at all appeares that they were denied it perhaps they never asked it perhaps they could not finde such as were sufficient to bayle them And in truth whensoever any man is but removed from any prison in England though it be for debt or trespasse onely into that Court the entry is but in the selfe same sillables as in these foure cases And in truth if these proceedings did prove that any of the prisoners named in them were not bayleable or had beene thought by the Court not to have beene bayleable it will necessarily follow that no man living that is ordinarily removed from any prison into the Kings Bench or that is there upon any ordinary action of debt or action of trespasse could bee bayled for every man that is brought thither and not remanded and every man that is arested but for a debt or trespasse and was returned into that Court is likewise committed to the Marshall of that Court and by the selfe same entry and not otherwise yet these foure havebeen much stood on and have strangely misled the judgement of some that did not or would not seeme to understand the course of that Court. 7 H. 8. Pages Case The fifth of this nature is Edward Pages case it is Tr. 7. H. 8. this might have beene well reckoned with the former foure had not the misentry of the Clerk only made it vary from them Ed. Page was committed to the Marshalsea of the Houshold and that per mandatum Dom. Regis and returned to be therfore detained and the entry is Qui committitur Marr. Hospitii Dom. Regis This word Marr. is written in the Margine of the roll this hath beene used to prove that the Judges remanded this prisoner if they had done so the remanding had beene onely while they advised and not any such award which is given when they adjudge him not bayleable but in truth the word Committitur shewes that there was not any remanding of him nor doth that Court ever commit any man to the Marshalsea of the Houshold and besides the word Marr. for Marrescallo in the Margine shewes plainly that he was committed to the Marshall of the Kings Bench and not remanded to the Marshalsea of the Houshold for such entry of that word in the Margine is perpetually in cases of that nature when they commit a man to their owne prison and so give him the first step to baylement which he may have if he ask it and can finde bayle and doubtlesse these words of Hospitii pred were added by the error of the Clerk for wnat of distinction in his understanding from the Marr. of the Kings Bench to the Marshall of the Houshold 8 Iac. Caesars Case The sixth of these is Tho. Caesars Case it is 8 Iac. rot 99. This Casar was committed to the Marshalsea of the Houshold per mandatum Dom. Regis and returned to be therefore detained and indeed a remittitur is in the roll but not a remittitur quousque but onely that kind of remittitur which is onely used while the Court advises 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 returne was insufficient and that if it were not amended the prisoner should be discharged For in the Book of Rules in the Court of Mich. Terme when Caesars Case was in question they expresly ordered that if the Stewards Marshall did not amend their returne the prisoner should be absolutely discharged the words of the Rule are Nisi Seneschalus Maniscal Hospitii Dom Regis sufficientur returnaverint brevem de Habeas Corpus Thome Caesar dier mercur prox per ost quindenam scilicet Martium def exonerabitur And this is also the force of that President but yet there hath beene an interpretation upon this rule It hath beene said that the Judges gave this rule because the truth was that the returne was false and that it was well knowne that
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
the resolution of all the Iudges in the time of Queene Elizabeth It was in the 34 of her raigne when divers persons had beene committed by absolute command and delivered by the Iustices of the one Bench or the other whereupon it was desired that the Iudges would declare in what cases persons committed by such command were to be inlarged hath beene variously cited and variously apprehended The House of Commons therefore desiring with all care to informe themselves as fully of the truth of it as possibly they might got into their hands from a member of their House a Book of selected cases collected by a reverend and learned chiefe Iustice of the common place that was one of them that gave the resolution which is entred at large in that booke I meane the Lord chiefe Iustice Anderson it is written in the booke with his own hand as the rest of the book is and howsoever it hath beene cited and was cited in that great judgement upon the habeas corpus in the Kings Bench as if it had been that upon such commitments the Iudges might not bayle the prisoners yet it is most plaine that in the resolution itselfe no such thing is contained but rather expressed the contrary I shall better represent it to your Lordships by reading it then by opening it Then it was read here If this resolution doth resolve any thing it doth indeed upon the Iurie resolve fully the contrary to that which hath bin pretended and enough for the maintenance of the ancient and sundamentall point of liberty of the person to be regained by habeas corpus when any is imprisoned And I the rather thought it fit now to read it to your Lordships that it might be at large heard because in the great judgement in the Kings Bench though it were cited at the barre as against this point of personall liberty as also at the Bench yet though every thing else of Record that was used were at large read openly this was not read either at Barre or Bench for indeed if it had every hearer would easily have knowne the force of it to have been indeed contrary to the judgement My Lords having thus gone through the Charge committed to me by the House of Commons and having thus mentioned to your Lordships and opened the many Presidents of Records and that draught of the judgement in this like case as also this resolution I shall now as I had leave and direction given me lest your Lordships should be put to much trouble and expence of time in finding or getting Copies at large of those things which I have cited offer also to your Lordships authentique Copies of them all and so leave them and whatsoever else I have said to your Lordships further consideration Mr. Seldens Presidents The true Copie of the Presidents of Record in one of the Arguments made at the first conference with the Lords touching the libertie of the person of every Free-man Inter Record Dom. Regis Caroli in Thesauro Recept Scaccarij sui sub custodi Dom. Thesaurar Camerar ibidem Remane◠vizt Placita coram Domino Rege apud Westmonasteriū de Ter ' Pasche Anno Regis Edwardi 3. post conquest Angliae 18. inter alia sic continetur ut sequitur Rot. 33. Adhuc de termino Pasche London 18. Ed. 3. Bildestons Case cite devant fo 33. DOminus Rex mandavit delicto fideli suo Roberto de Dalton Constabullar ' Turris suae London vel ejus locum tenent ' bre suum in haec verba Edvardus Dei gracia Rex Angliae Franciae Dominus Hiberniae delicto fideli suo Roberto de Dalton Constabular ' Turris suae London vel ejus locum teneum salutem maudamus quod Johannem Bildeston capellan ' quem vic nostr London ad mandatum nostrum apud pred Turrim vobis liberavit ab eisdem recipiatis in prisona nostra Turris London pred Salvo Custodiar fac ' quousque super hoc duxerimus emandand Teste meipso apud Turrim nostram London 30. die Marcij Anno Regni nostri Angliae 16 Regni vero nostri Francie 30. Et modo sclt in Crast Assen Dom. anno Rege nuns 8. coram Domino Rege apud Westminst venit Iohannes de Wynwicke locum teneus pred Constabular adduxit coram Iusticiar ' hic in Cur. pred Iohannem de Bildeston quem al 's a prefat Vicecomit virtute brevis pred recepit c. Et dicit quod ipse a Dommo Rege huit mandat ducend liber and corpus ipsius Iohannis de Bildeston prefat Iusticiar hic c. Et quesitum est de pred Iohannem de Wynwicke si quam aliam detentionem prefat Iohannis de Bildeston habeat Camm Qui dicit quod non nisi bre pred tantum Et quia videtur cur bre pred sufficien non esse coram pred Johannis de Bildeston prison Marr ' Regis hic retinen c. Idem de Iohannes dimittitur per manus Willielm de Wakefield rectoris Eccill de willingham Iohannis de Wynwicke in Com. Kanc. Johanis de Norton in Com. Norff. Nicolai de Blandefford in Com. Middl. Rogeri de Bromley in Com. Stafford qui eum manuceperunt Habend in eum Coram Domino Rege apud in Octabis Sancti Trin. ubicunque c. vizt Corpus pro corpore c. Ad quos Octabis Sancte Trin. Coram Domino Rege apud Westm ven pred per manus pred Et super hoc mandavit Iusticiar suis hic quoddam bre suum Claus in hec verba Edwardus Dei gracia Rex Anglia Franciae dominus Hiberniae delictis fid li suis Willielmo Scot socijs suis Justiciar ' ad placita coram nobis tenend assignat saltem cum nuper mandaverimus delicto fideli nostro Roberto de Dalton Constabular ' Turris nostre London vel ejus locum tenen quod Iohannem de Bildeston Capellaum Capt. decent in prisona turris pred hoc preceptum nostrum pro suspitione contra factionis magni Sigilli nostri cum Attachiat aelias Causis capcon detentionem pred cangen salvo secur ' duci fac ' Coram nobis in Cron Ascen Dom ubicunque tunc fuissemus in Anglia persone Marrescall nostre coram nobis liberand in eadem quousque per quendam informatorem essemus plenius informat Custod tuta inde informatione pred ulterius pred' super hoc fieri facerimus quod fore viderimus faciend secundum legem consuetudinem Regni nostri Anglie nos in casu quod dictus Informator non verum Coram nobis ad informand nos plenius super premiss volentes eidem Jahannem ea de causa Iusticiar ' deferferr ' in hac parte vobis mandamus quod si pred Informator ' in Quenden Sanct. Trin. prox futur vel circa non venit non super hoc plenius informat tunc advent ejusdem informatoris minime
' cur ' Marr ' Hospitii predict ' virtute cujusdem brevis Dom. Regis de habeas corpus ad Sectam ipsius Regis ad stand rect ' c. ad sect partis utlag eis inde direct coram Rege duct cum causa vizt quod idem Humfridus Commissus fuit Gaol Marr ' Hospitij Dom. Regis hac de causa non alia idem Humfridus in prisonae pred detinetur qui committitur Marr ' c. posteo Pas sequen ' Rex relinquit mandatum suum Capital Iusticiar ' per Tho. Lovett mil. osten ' pro utlag pred traditur in Ball. prout patet alibi De Ter ' Scte. Trinit ' anno 39 El. per cont Rotli ejusdem 113. 39. El. Broome case cite devant fo 35. Lawrence Broome per Hugonem Parlour custod prisone Domine Regine de le Gatehouse virtute brevis Domine Regine de habeas corpus ad subiiciend c. ei inde direct coram Domina Regina apud Westminst ' duct cum causa vizt quod predict Lawrence Broome in arcta custod sua remanset per mandatum duorum de Consilio dicte Domine Regine pro certis causis eos moven ' qui committitur Marr ' postea iste eodem termino traditur in Ball. pro ut patet c. Per Scruect Fin. Ter ' Sct. Trin. anno 39. El. Regine Essex Lawrencius Broome de parva Baddow in Com. pred husband traditur in Bâ—ll ' ad subiiciend c. ad mandat privat Consil Domine Regine super habe as corpus Vsque octabis Mich. Versus Rando Mayall de Hatfield Beverell in Com' pred' gener Versus Henrico Odall de eadem Gent. Versus Will. Eekasden de Wesminst ' Bricklayer Versus Rica Morgan de Westminst ' Labourer Vterque sub pena 40 l. et princeps sub pena 100 morcarum Pro suspitione proditionis cum Johanne Smith mil. De Ter ' Sct ' Michaelis anno 4 El. per cont Rot. ejusdem Rot. 37. Tho. Wenden per Hugonem Parlour gen ' custod prisone Domine Regine de ie Gatehouse virtute brevis Domine Regine de Habeas corpus ad Subiiciend c. ei inde direct ' et coram Domina Regina apud Westm ' duct cum causa vizt ad 18 die Junii Anno Regini Domine El. nunc Regine Anglie 38 corpus c. infra nominat Tho. Wenden extra cur ' ejusdem Domine Regine coram ipsa Domina Regina privati Consilii Dom. Regis civitatis tenor sequitur in hec verba scilicet These are to wil require you to receive into your charge and custody the person of Iohn Brocket Knight and him to retaine in safe keeping under your charge untill you shall have further order for his inlargement whose coÌ„mitment being forsome special matter concerning the service of our Soveraigne Lord the King you may not faile to regard this Warrant accordingly From the Kings Pallace at White-Hall the last of March 1605. Eaque fuit causa detentionis pred Johannis in prisona pred qui committitur Marr. c. postea traditur in Ball ' prout patet c. Ter ' Mic-Anno 12. Jac. Regis Rot. 119. 12. Ia. Rayners Case cite devent fo 35. Milo Reyner per Aquilam Wykes Custod prisone de le Gate-house virtute brevis Dom Regis de Habeas corpus ad Subijciend c. coram Domino Rege duct cum causa vizt quod ante advent brevis pred scilt 10. Iuly Anno Dom. 1613. pred Milo Reyner comissus fuit prisona pred' huc usque detent virtute Warr ' cujusdem fact direct per Georgium Archiepiscopum Cant. Henr. Com. Northampton Tho. Com. Saffolke Willielm Dom. Knolles Edwardum dom Wooton Edwardum dom Stanhope cuius Warranti tenor sequitur in hec verba To Aquila Wykes Keeper of the Gate-house in Westminster or his Deputie whereas it is thought meet that Miles Reyner and Richard Beckwith be restrained of their libertie and committed to the prison of the Gate-house These shall bee to will and require you to receive the persons of Rayner Beckwith into your charge and keeping untill you shall have further order from us in that behalfe for which this shall be your sufficient warrant Dated at White-Hall the 10. of July 1613. Et haec est causa detentionis sue in prisona pred Qui comittitur Marr ' c. Et postea isto eodemter ' traditur in Ball ' prout patet c. Ter. Hill 5. H. 7. per cont ' ejusdem Rot. 18. 5. H 7. Everards Case cite devunt fo 35. Ricus Everard imper de Colchester in Com. Essex clericus Robertus Wight nuper de Norwico Smith per Robertum Willoughbie mil ' Dom. de Brooke Seneschall ' Hospicij Dom. Regis Iohannem Turbervile mil. Marr. Hospicij pred virtute bre de Habeas Corpus ad Sectam ipsius Regis pro quibusdam prodicionibus felon ' unde indicto Com. Essex indictat sunt eis inde Direct Coram Domine Rege duct cum causa vizt quod ijdem Ricardus Everard Robertus Wight Commiss fuer ' custod Marr. Marr. pred per mandat Dom. Regis Qui committitur Marr. c. Ter. Hill 8. H. 7. et percont ejusdem Rot. 13. Berckss 8. H. 7. Cherries case cite devant fo 43. Roger Cherrie nuper de nova Windsor in Com pred Yeoman alias dict Rogerus Stearries nuper de eadem in eodem Com. Yeom per lohan Baker Majorem villae Dom. Regis de nova Windsor in Com. pred virtute brevis Dom. Regis de Habeas Corpus ad Sect. ipsius Regis pro quibusdam felonijs iransgr unde in Com. Midd. indictatus est ' sibi inde direct coram Domino Rege duct cum causa vizt quod idem Roger ' commissus fuit Gaol Dom. Regis infra villa pred per mandat Dom. Regis Qui committitur Marr. c. Ter. Hillar 9. H. 7 per Cont. ejusdem Rot. 14. 9. H. 7. Burtons Case cite devant fo 44. Surr. ss Christopherus Burton nuper de Rochester in Com' Cancij Hackneyman per Robertum Willoughbie Dom. Brooke mil ' Seneschall ' Hospitij Dom. Rogis Iohannem Digbie mil ' Marr. cur Mar. Hospitij pred per mandatum Dom. Regis Et hac est causa non alia Qui committitur Marr. c. Ter. Pas Anno 19. H. 7. per Cont. ejusdem Rot. 23. 9 H. 7. Vrmswicks Case cite devant fo 44. Georgius Vrmeswicke de London Mereer per Oliverum Wood locum tenen prisonae Dom. Regis de le Fleet virtute brevis Dom. Regis de conservand diem c. eiinde direct coram rege duct cum causa vizt quod idem Georgius 13. Maij Anno 19. Regis commissus fuit prisonae del Fleet per mandatum ipsius Dom. Regis salvocustodiend Sub pena 40. l qui committitur Marr. c. Ter. Trin.
no cause of such commitment deteyner or restraint being expressed for which by Law he ought to be committed deteyned or restrained and the same be returned upon a Habeas Corpus granted for the said party then he ought to be delivered or bayled All these without one negative that these Acts of Parliament and these Judiciall presidents in affirmance thereof recited by my Colleagues are but declarations of the fundamentall lawes of this Kingdome I shall prove by manifest and legall reasons which are the grounds and mothers of all lawes The first generall reason 1. The first generall reason is drawne are ipsa from imprisonment ex visceribus causae be it those or other imprisonments which is divided into three parts 1. First no man can be imprisoned at the will and pleasure of any but he that is bond and a villaine for that imprisonment at will is tailes luy haut base are propria quarto modo to villaines 2. But if Free-men of England might be imprisoned at the wil and pleasure of the King by his commandment then were they in worse case then bond-men villaines for the lord of a villain cannot command another to imprison his villain without cause as of disobedience or refusing to serve as it is agreed in our Bookes 3. Imprisonment is accounted in law a civil death perdit domum familiam vicinos patriam his house is family his wife his children his neighbours his Country and to live among wretched wicked men 39 H. 6. fo 50. 41. Ed. 3. 9. If a man be threatned to be killed he may avoid a feoffment of lands gift of goods c. So it is if he be threatned to be imprisoned he shall doe the like for that is a civill death The second generall reason Bracton 105. fo 15. The second generall reason is a Minore ad majus paena corporalis est majus qualibet pecuniaria but the King himselfe cannot impose a fine upon any man but it must be done juditially by his Judges per Iusticiar ' in Cur ' non per Regem in Camera 2. R. 3. 11. and so it hath beene resolved by all the Judges of England The third generall reason The third generall reason is drawne from the number and diversity of remedies which the law giveth against imprisonment vizt brevia de Homine replegiande de odio Atia de habeas corpus bre de manucaptiene The two former of these are antiquated but the writ de odio Atia is revived for that was given by the Sat. of Magna Car ' cap. 26. and therefore though it were repealed by the Stat. of 28. Ed. 3 ca 9. yet it is revived by the Stat. of 43. Ed. 3. cap. 1. by which it is provided that all Statutes made against Magna Charta are void now the law would never have given so many remedies if the Freemen of England might have beene imprisoned at Free will and pleasure The fourth generall reason The fourth generall reason is drawne from the extent universality of the pretended power to imprison for it should not extend onely to the Commons of the Realme and their posterity but to the Nobility and their Honourable Progenies to the Bishops and Clergie of the Realme and their Successours to all persons of what condition or sex or age so ever to all Judges Officers c. whose attendance are necessary without exception of any person The fifth generall reason The fifth generall reason is drawne from the indefinitenesse of time the pretended power being limited to no time it may be perpetuall during life The sixth generall reason The sixth generall reason is drawne a dedecore from the losse and dishonour of the English nation in two respects 1. For their valour and power so famous through the whole world 2. For their industry for who will endeavour to imploy himselfe in any profession either of Warre liberall Science or Merchandize 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 certaine estate 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 a slaves The seventh generall reason The seventh generall reason is drawne ab utili et inutili for that appeareth by the Stat. of 36 Ed. 3. that the execution of the Statute of Magna Charta 5. Ed. 3. 25. Ed. 3. 28. Ed. 3 are adjudged in Parliament to be for the common profit of the King and of his people and therefore the pretended power being against the profit of the King and of his people can be no part of his prerogative The eighth generall reason The eighth generall reason is drawne a tuto 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 of the Cause though hee 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 if he escape albeit he be innocent it is treaon or felony The last generall reason The last generall reason is drawne from authorities 16. H. 6. Means de fait 182. by the whole Court the King in his presence cannot command one to be arrested but an action of false imprisonment lies against him that arresteth 22. H. 7. 4. Newton 1 H. 7. 4. The opinion of Markham chiefe Justice to Ed. 4. And the reason because the party hath no remedy Fortescue cap. 8. Proprio â—re nullus regum usus est c. to commit any man 4. El. Plo. Com. 236. The 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 others are accessary to it Cicere Major haeredidas venit unicuique nostrum a legibus quam a parentibus 25. Ed. 1. cap. 2. All judgements given against Magna Charta are void Vpon conference with the Lords these objections were made by the Kings Attorney The first objection 1 That the resolutions of the House of Commons were incompatible with a Monarch that must governe by rule of State Rns Whereunto it was answered Quod nihil tam propr ' est imperii quam legibus vivere And againe Attribuat Rex legi quod lex attribuat ei vizt dominationem imperium quia sine lege non potest esse Rex It can be no 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 vizt pro suspitione proditionis c. If it be for any contempt or any other thing the particular cause must be shewed The second objection 2 To blinde those that are
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
being proposed to Master Keeling it was confirmed by him that by the Entrie it appeared by their course that the remaunding of him was the selfe-same day he was brought which as it was said by the Gent. of the house of Commons might be upon the rising of the Court or upon advisement or the like and this answer was given to this President of the Brewers 12. Iac. Saltonstalls case cite devant fo 49. 65 Obiections hors de ceo To the last of these eight which Master Attorney objected is Saltonstalls Case 12. Jac. he was committed per mandatum à Dom. de privato Consilio and being returned by the Warden of the Fleet to be so Remittitur prisonae pred and in 13. Iac. in the same Case there is remittitur generally in the Roll and these two make but one Case and are one President Rns al dits obiections To this the Gent. of the house of Commons answered that it is true the Rolles have such entries of remittitur in them generally But that proves nothing upon the reason before used by them in Caesars Case But also Saltonstall was committed for another cause besides per mandatum Dom. Regis for a contempt against an Order in the Chancery and that was in the returne also And besides the Court as it appeares in the Record gave severall dayes to the Warden of the Fleet to amend his returne which they would not have done if they had conceived it sufficient for that which is sufficient needs not amendment To this Master Attorney replied that they gave him day to amend his returne in respect of that part of it which concerns the Order in Chancery and not in respect of that which was per mandatum Dom. Regis But the Gent. of the House of Commons answered that that appeared not any where nor indeed is it likely at all nor can be reasonably so understood because if the other returne per mandatum Dom. Regis had beene sufficient by it selfe then doubtlesse they would have remanded him upon that alone for then they needed not at all to have stood upon the other part of the returne in this Case So that out of the Record it selfe it appeares fully that the Court conceived the returne to be insufficient So the Gent. of the house of Commons concluded that they had a great number of Presidents besides divers Acts of Parliament and reasons of Common law agreeable to their resolution and that there was not one President at all that made against them but indeed that almost all that were brought as well against them as for them if rightly understood made fully for the maintenance of their conclusion and that there was not one Example or President of a Remittitur in any kind upon the point before that of Caesars Case which is before cleered with the rest and is but of late time and of no moment against the resolution of the House of Commons And thus for so much as concerned the presidents of Record the first day of the Conference desired by the Lords ended The next day they desired another Conference with the House of Commons at which it pleased the Committee of both Houses to heare Master Attorney againe make what Objections he could against other parts of the Argument formerly delivered from the House of Commons he objected against the Acts of Parliament and against the reasons of the Law and his objections to those parts were answered as it appeares by the Answers by order given into the House of Commons by the Gent. that made them He objected also upon the second day against the second kind of Presidents which are resolutions of Judges in former times and not of Record and brought also some other testimonies of the opinions of Judges in former times touching this point Resolution de touts les Iudges 34. El. Objections hors de ceo per l' Attorney First for that Resolution of all the Judges of England in 34. El. mentioned and read in the Arguments read at the first Conference he said That it was directly against the resolution of the House of Commons and observed the words of it in one place to be that persons so committed by the King or by the Counsell may not be delivered by any of the Courts c. And in another that if the cause were expressed either in generall or in specialtie it was sufficient and he said that the expressing of a Cause in generaltie was to shew the King and the Counsels cōmand and to this purpose he read the whole words of that resolution of the Judges Then he objected also that in a report of one Roswels Case in the Kings Bench in 13 Jac. he found that the opinion of the Judges of that Court Sir Edward Cooke being then chiefe Justice and one of them was that a prisoner being committed per mandatum Dom. Regis or privati Consilii without cause shewed and so returned could not be bayled because it might be matter of State or Arc anum nuperii for which he stood committed And this also he added an opinion he found in a Journall in the House of Commons of 18. Iac. wherein Sir Edward Cooke speaking to a bill preferred for the explanation of Magna Charta touching imprisonment said in the same House that one so committed could not be inlarged by the Law because it might be matter of State for which he was committed and amongst these objections as his objections of the other nature also he spake of the confidence that was shewed in the behalfe of the House of Commons and he said it was not confidence on either part could adde any thing to the determination of the question but if he would that he had as much reason of Confidence for the other side against the resolution of the House of Commons grounding himselfe upon the force of his objections which as he conceived had so weakned the Arguments of the House of Commons Rns al dits objections To this a reply was made and first it was said to the Lords on the behalfe of the House of Commons that notwithstanding any thing yet objected they were upon cleare reason still confident of the truth of their first resolution grounded upon so just examination and deliberation taken by them And it was observed to the Lords also that their confidence herein was of another nature and of greater waight then any confidence that could be expressed by M. Attorney or whomsoever else being of his Majesties Counsell learned To which purpose the Lords were desired to take into their present memories the difference between the present qualities of the Gent. that spake in the behalf of the House of Commons of the Kings learned Counsel in their speaking there howsoever accidently they were both men of the same profession For the Kings Counsell spake as Counsell perpetually retained by Fee and if they made glosses or advantagious interpretations whatsoever for their own part they did but what
Quod Commissus fuit per mandatum Concilii Dominae Reginae qui committitur Marr. immediate traditur in Ballium Vn objection Rnde To this the like answer hath beene made as to that other Case of Overtons next before cited they say that in another roll of another terme of the same yeare it appeares he was in question for suspition of Coyning and it is true he was so But the returne and his Commitment mentioned in it have no reference to any such offence nor hath the Baylement of him relation to any thing but to the absolute commitment by the privie Counsell So that the answer to the like objection made against Overtons Case satisfies this also 9 El. Lawrences Case The sixth of these is of Queene Elizabeths time Mich. 9. El. Rot. 35 the case of Tho. Lawrence this Lawrence came in by Habeas Corpus returned by the Sheriffs of London to be detained in prison per mandat Consilij Dominae Regina qui Committitue Marr. super hoc traditur in Ballium Objection Rend An objection hath beene invented against this also it hath beene said that this man was pardoned and indeed it appeares so in the Margin of the roll where the word pardonatur is entred but clearely his in largement by Bayle was upon the body of the returne onely unto which that note of pardon in the Margin 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 not pardoned or out of his innocencie wants no pardon 9 El. Constables Case The seaventh of these is in the same yeare and of Easter Terme following it is P. 9. El. Rot. 68 Ro. Constables Case he was brought by Habeas Corpus out of the Tower and in the returne it appeared he was committed there per mandatum privati Consiliidictae Dominae Reginae qui Comittitur Marr. posteae isto eodem ter traditur in Ball. The like objection hath beene made to this as that before of Lawrence but the selfe same answer clearely satisfies for them both 20 El. Brownings Case The 8. is of the same Queenes time in Pas 20 El Rot. 72. Iohn Brownings Case This Browning came by Habeas Corpus out of the Tower whether he had beene committed and was returned to have been committed per privat Consil Dominae Reginae qui comittitur Marr. postea isto codem termino traditur in Ball. Objection Rnde To this it hath beene said that it was done at the chiefe Justice Wrayes Chamber and not in the Court and thus the authority of the President hath beene lesned or sleighted If it had beene done at his Chamber it would have proved at least this much that Sir Christopher Wray then chiefe Justice of the Kings Bench being a grave learned and upright Judge knowing the Law to be so did Bayle this Browning and enlarge him and even so farre the President were of value enough but it is plaine that though the habeas corpus were returnable as indeed it appeares in the Record it self at his Chamber in Serjeants Inn yet he only committed him to the Kings Bench presently and referred the consideration of inlarging him to the Court who afterward did it For the Record sayes Et postea isto eodem termino traditur in Ball. which cannot be of an inlargement at the chiefe Justice Chamber 40 El. Hare-Courts Case The ninth of this first kind is Hill 40. El. Rot. 62. Edward Hare Courts Case hee was imprisoned in the Gatehouse and that per Domines de private Consilio Dominae Reginae pro certis causis eos moventibus ei ignotis And upon his habeas corpus was returned to be therefore onely detained Qui Comittitur Marr. postea isto eodem termino traditur in Ball. To this never any colour of answer hath beene yet offered 43 El. Catesbies Case The tenth is Catesbies Case in the vacation after Hill Term 43. El. Rot. Robert Catesbie was cōmitted to the Fleet per war rantum diversor pro nobilium viroy de privato Consilio Domine Regina He was brought before Iustice Fenner one of the then Iustices of the Kings Bench by Habeas Corpus at Winchester house Southwark Et homiss fuit Marr. per prefat Edwardum Fenner statim traditur in Ball. 12 Iac. Beckwiths Case The eleventh is Rich Beckwiths Case which was in Hill 12 of K. Iames Rot. 153. He was returned upon his Habeas corpus to have beene committed to the Gatehouse by divers Lords of the privie Counsel Qui committitur Marr. postea esto eodem termino traditur in Ball. Objection Rnde To this it hath bin said by some that Beckwith was bayled upon a letter written by the Lords of the Counsell to that purpose to the Iudges but it appeares not that there was ever any letter written to them to that purpose which though it had beene would have proved nothing against the authority of the Record for it was never heard of that Iudges were to be directed in point of law by letters from the Lords of the Counsell although it cannot bee doubted but that by such letters sometimes they have been moved to bayle men that would or did not ask their inlargement without such letters as in some examples I shall shew your Lordships among the presidents of the second kind 14 Iac. Sir Tho. Mounsons Case The 12 and last of these is that of Sir Tho. Mounsons Case it is Mich. 14. Jac. Rot. 147. Hee was committed to the Tower per warrantum a diversis Dominis de privato Consilio Domini Regis locum tenenti directum And he was returned by the Lievtenant to be therefore detained in prison qui committitur Marr. super hoc traditur in Ball. Objection Rnde To this it hath beene answered that every body knowes by common fame that this Gentleman was committed for suspition of the death of Sir Tho. Overbury and that hee was therefore bayleable a most strange interpretation as if the body of the return and the warrant of the privie Counsel should be understood and adjudged out of fame onely was there not as much a fame why the Gentlemen that were remanded in the last judgement were committed and might not the selfe same reason have served to enlarge them their offence if any were being I think much lesse then that for which this Gentleman was suspected And thus I have faithfully opened the number of 12 Presidents most expresse in the very point in question and cleared the objections that have beene made against them And of such presidents of Record as are of the first kinde which prove plainly the practise of former ages and judgement of the Court of Kings Bench in the very point on the behalfe the Subject my Lords hitherto I am come next to