Lordship and all others but the parties themselves for I except them My Lord the great and mighty reason that they insisted upon was the inconveniences that might come to the subjects in their liberties if this Return should be good and this reason they inferred out of Records and Books of the Common Law which gives the liberty of the subjects I doe acknowledge that the liberty of the subject is just and that it is the inheritance of the subject but yet it is their inheritance secundum legem terrae My Lords they put many cases likewise to enforce it 1 2 Eliz. Dier fo 175. that the continuance of a Capias shall bee from Term to Term without Term betwixt because otherwise the party defendant may be kept too long in prison and 38 Ass pl. 22. Broke tit Imprisonment 100. that imprisonment is but to detaine the party till he have made fine to the King and therefore the King cannot justly detain him in prison after the fine tendred and 16 H. 6. monstrans de faictz 182. if the King command me to arrest a man and thereupon I doe arrest him he may have an action of false imprisonment or of trespasse against me though it be done in the Kings presence and 1 H. 7. 4. the discourse of Hussey where he saith that Sir John Markham delivered unto King Edward the fourth that hee should not arrest upon treason or felony any of his subjects because hee could not wrong his subjects by such arrest for they could not have remedy against him Prerogative Br. 139. These my Lord are the causes that they insisted upon for this purpose To the two first I shall give but one answer which is that the restraint in these two cases and most of the other cases before cited appears to be in the ordinary course of Judicature fit for Westminster Hall and not for the Kings Councell Table A writ of Capias was the first originall of it and therefore not to be applied to the cause of ours And for the other two cases the law presumeth that the active part of them is not so proper for the Majesty of a King who ever doth these things by his subordinate Officers But that the subject should not be committed by the King was never heard of for the King may commit any man at his pleasure but that is not our case but whether when the King hath committed one he must render a cause of that commitment that it may appear whether the party be bailable or not or else the party must be delivered The Book 9 E. 3. fol. 16. pl. 30. cited of a Cessavit the King having by Proclamation commanded that in the County of Northumberland no Cessavit should be brought c. during the war the tenant pleadeth this command and it was denyed him and he that notwithstanding was commanded to plead but the reason thereof was because the commandment thereof was given by E. 2. who being dead the commandment was determined The Book of Edward the third 4. fol. 16. is indeed where the commandment was given by the same King and that was likewise denyed him for the King cannot command your Lordship to any other Court of Justice to proceed otherwise then according to the Laws of this kingdome for it is part of your Lordships oath to judge according to the Law of the kingdome But my Lord there is a great difference between those legall commands and that absolute Potestas that a Soveraign hath by which a King commands but when I call it absoluta potestas I doe not mean that it is such a power as that a King may doe what he pleaseth for he hath rules to governe himself by as well as your Lordship who are subordinate Judges under him the difference is the King is the head of the same fountaine of Justice which your Lordship administers to all his subjects all Justice is derived from him and what he doth he doth not as a private person but as the Head of the Common-wealth as Iusticiarius Regni yea the very essence of Justice under God upon earth is in him and shall not wee generally not as subjects onely but as Lawyers who governe themselves by the rules of the Law submit to his command but make inquiries whether they be lawfull and say that the King doth not this or that in course of Justice If your Lordship sitting here shall proceed according to Justice who calleth your actions in question except in your own Judgements you see some errour in the proceeding and then you are subject to a writ of Errour But who shall call in question the Actions or the Justice of the King who is not to give any account for them as in this our case that he commits a subject and shews no cause for it The King commits and often shews no cause for it is sometimes generally Per specialâ— mandatum domini Regis sometimes Pro certis causis ipsum dominum Regem moventibus but if the King doe this shall it not bee good it is all one when the commitment is Per speciale mandatum domini Regis and when it is Pro certis causis ipsum dominum Regem moventibus and it is the same if the commitment be Certis de causis ipsum dominum Regem tangentibus And my Lord unlesse the Return to you doth open the secrets of the commitment your Lordship cannot judge whether the party ought by Law to be remaunded or delivered and therefore if the King allow and give warrant to those that make the Return that they shall expresse the cause of the commitment as many times he doth either for suspition of felony or making money or the like we shall shew your Lordship that in these causes this Court in his Jurisdiction were proper to try these criminall causes and your Lordship doth proceed in them although the commitment be Per speciale mandatum domini Regis which hath not secret in it in these causes for with the warrant he sendeth your Lordship the cause of the committing and when these warrants are made and brought into this Court your Lordship may proceed but if there be no cause expressed this Court hath always used to remaund them for it hath been used and it is to be intended a matter of State and that it is not ripe nor timely for it to appear My Lord the main fundamentall grounds of Arguments upon this case beginnes with Magna Charta from thence have grown states for explanation thereof severall Petitions of Parliament and Presidents for expedition I shall give answers to them all For Magna Charta in the 29 Chapter hath these words No Free-man shall be taken nor imprisoned or disseised of his freehold liberties nor free customes nor be outlawed or exiled nor any other way destroyed nor we will not passe upon him nor condemn him but by lawfull Judgement of his Peers or by the Law of the Realm My Lord this statute
commandement by Letters from the King That whereas the Earl of Warwick had commanded divers persons to the custody of the said Sheriffe the King sent a Letter to the said Sheriffe commanding that those who were committed to his custody by the Earl of Warwick he should shew no grace to them that is they should not be bailed The Sheriffe notwithstanding this command lets some of those prisoners to bail whereupon he was complained of in Parliament that he had done against the Kings commandement and he was condemned for it This was a Parliament I wonder this should be done in Parliament and that it was not said there That this commitment being done by the Kings commandment was not good no he was condemned in Parliament for it was one that did break the Statute of Westm primo My Lord the use that I make of this Record is this It recites that the Earl of Warwick committed divers it might be that he did commit them by direction from the King but the Record mentioneth not so much but it shews that the King by Letters commanded the Sheriffe that he should shew those persons no grace and yet he did he was examined upon this and by Parliament committed The next matter I will offer to your Lordships judgement for the true exposition of the Law in this case is the Book we call the Register an authority respected it is the foundation of all our Writs at the Common Law I bring not the Book Register fol. 77 c. In this Book there is one Writ saith thus Rex c. Quod replegiar ' fac ' A. nisi fuerit per speciale mandatum domini Regis Iustice Doderidge In what Writ is that De homine replegiando Atturney Generall Yea in the Writ De homine replegiando and there is another Writ directed to the Constable of Dover in the very same words by which it appears that they that are imprisoned by the Kings command non sunt replegiabiles F.N.B. 66. f. Master Fitzherbert a grave Judge and is in authority with us perusing these Writs expressed it in these words plainly There are some cases wherein a man cannot have this Writ although he be taken and detained in Prison as if he be taken by the death of a man or if he be taken by the commandement of the Kings Justices and mentions not chief Justice which I beleeve is to be intended not of the chief of the Court of Judicature but of the chief Justice of England for there was such a one in those days Thus my Lord you see the opinion of Master Fitzherbert in this case The next thing that I will shew your Lordship is the opinion of Master Stamford in his Pleas of the Crown Fol. 72. where he sets down the Statute of Westminster primo and then he addes That by this appears in four cases at the Common Law a man is not replevisable In those that were taken for the death of a man or by the commandment of the King or of his Justices or of the Forest And there he saith That the commandment of the King is to be intended either the commandment of his mouth or of his Councell which is incorporated to him and speak with the mouth of the King My Lord I shall desire no better Commentaries upon a Law then these reverent grave Judges who have put books of Law in Print and such Books as none I beleeve will say their judgements are weak The next thing I shall offer unto your Lordship is this that I cannot shew with so great authority as I have done the rest because I have not the thing it self by me but I will put it to your Lordships memory I presume you may well remember it It is the resolution of all the Judges which was given in the four and thirtieth of Queen Elizabeth it fell out upon an unhappy occasion which was thus The Judges they complain that Sheriffes and other Officers could not execute the processe of the Law as they ought for that the parties on whom such processe shall be executed were sent away by some of the Queens Councell that they could not be found the Judges hereupon petitioned the Lord Chancellor that he would be a suitor to her Majesty that nothing be done hereafter And thereupon the Judges were desired to shew in what cases men that were committed were not bailable whether upon the commitment of the Queen or any other The Judges make answer That if a man shall be committed by the Queen by her command or by the Privy Councell he is not bailable If your Lordship ask me what authority I have for this I can onely say I have it out of the Book of the Lord Anderson written with his own hand My Lord I pray you give me leave to observe the time when this was done It was in a time and we may truly call it a good time in the time of good Queen Elizabeth and yet we see there was then cause of complaint and therefore I would not have men think that we are now grown so bad as the opinion is we are for we see that then in those times there was cause of complaint and it may be more then is now This my Lord was the resolution of all the Judges and Barons of the Exchequer and not by some great one Now I will apply my self to that which hath been enforced by the Councell on the other side which was the reason that the Subject hath interest in this case My Lord I do acknowledge it but I must say that the Soveraign hath great interest in it too And sure I am that the first stone of Soveraignty was no sooner laid but this power was given to the Soveraign If you ask me whether it be unlimited my Lord I say it is not the question now in hand But the Common Law which hath long flourished under the Government of our King and his Progenitors Kings of this Realm have ever had that reverent respect of their Soveraign as that it hath concluded the King can doe no wrong And as it is in the Lord Berklies Case in Plowdens Com. 246. b. it is part of the Kings Prerogative that he can doe no wrong Title Travers 5. In the fourth of Edward the fourth fol. 25. the King cannot be a disseisor and so it is also in the Lord Berklies Case in 32 H. 8. Dier fol. 8. The King cannot usurp upon a Patron for the Common Law hath that reverent respect to him as that it cannot conceive he will doe any injury But the King commits a Subject and expresseth no cause of the commitment what then shall it be thought that there is no cause why he should be committed Nay my Lord the course of all times hath been to say there is no cause expressed and therefore the matter is not ripe and thereupon upon the Courts of Judicature have ever rested satisfied therewith they would not search into it My
Court hath delivered the party but you shall see the contrary concluded in every Case that you have put where the cause of the commitment hath been expressed there the party hath been delivered by the Court if the Case so required but where there hath been no cause expressed they have ever been remaunded or if they have been delivered they have been delivered by the Kings direction or by the Lords of the Councell If this fall now in proof you see you have gathered fair conclusions out of the Records and that you may see that this is so I have brought the Records with me of your own propounding and I will goe through them from point to point and then judge your selves of the case It is not materiall whether I call for them in that order as you produced them or no and therefore I will take them as they are first or last in the Kings Reign They are in number many in the time of Henry the seventh Henry the eighth Queen Mary Queen Elizabeth and King James his time I will shew you Sir Thomas Monsons Case in 14 Iacobi which was in all our memories I will begin with Pasche in 8 H. 7. Roger Cherries Case you vouched it to this purpose That Cherry being committed by the Major of Windsor was brought hither by a Habeas Corpus and the Major he returns that he was committed Per mandatum domini Regis and that thereupon he was delivered but you shall find by the Record that he was committed by the Major at the suit of the King for felony for which he was afterwards indicted brought to a triall and then discharged Vide this Record in Master Seldens Argument in the Parliament 3 4 Caroli Regis and so all the rest after mentioned The next was 19 H. 7. Vrswicks Case and you say he was brought hither by the Warden of the Fleet who as you said returned that he was committed Per mandatum domini Regis and you said he was discharged but he was bailed upon the Lords Letter and brought hither to record his return for he was bound to appear here and then he was discharged but that was the cause of his bringing hither vide the Records as aforesaid The next was Hugh Pains Case in 21 H. 7. and that you urged thus you say that he was brought hither by a Habeas Corpus by the Warden of the Fleet who returned that he was committed by the Kings Councell and he was bailed Now we finde that he was committed by them for suspition of felony and that cause was declared and he was bailed so that you see there was a cause expressed Vide the Record aforesaid The next is 2 H. 8. Thomas Beckley and Robert Harrisons Case these you said were brought in hither by George Earle of Shrewsbury and Thomas Earle of Surrey and the Return was that they were committed by the command of Hen. 7. and that they were bailed but you shall finde that they were committed for suspition of felony and that Harrison was committed by Hen. 7. but it was for Homicide upon the Sea and so the cause is expressed and afterwards he was bailed The next was in 22 H. 8. John Parkers Case you urged it to this purpose That he was brought hither by a Habeas Corpus by the Sheriffs of London and they you said returned that he was committed Per speciale mandatum domini Regis nunciatum c. by Robert Peck c. the cause why you urged this was twofold first that he was committed by the Kings command and yet he was bailed secondly that he was committed Per mandatum domini Regis nunciat ' per such a one But you shall finde by the Record that he was committed for the security of peace and for suspition of felony and that was the cause for which he was bailed for he is bailable by Law when such a cause appears Vide the Record as afore Goe on to the next and that is Peter Mans Case in the 3 4 Philip and Mary you urged that to this purpose You say that he was brought by the Keeper of the Gatehouse and you say that he returned that he was committed by the command of the King and the Queens Councell and thereupon he was bailed but you shall finde that he was committed for suspition of felony and robbery and thereupon he was bailed The next is in the 4 5 Phil. Mar. Edward Newports Case you said that the Constable of the Tower brought him hither and returned that he was committed by the Councell of the King and the Queen and that he was bailed but you see the Records that he was committed for suspition of coyning which is bailable onely in this Court and therefore it was removed hither yet this I must tell you that it is true in one Record it appears not but as you have cited it but you may see how it is supplied by another Record and the cause and he was delivered by a Proclamation Vide both Records in Master Seldens Argument as aforesaid Doderidge He could not be delivered by Proclamation unlesse it was for a criminall cause Hide Chief Iustice Observe another thing in the Book he is brought hither by the speciall command of the Councell so that although it appears not in the Record yet if the King or Lords mean to have him tried for his life he is brought hither Then you cited Robert Constables case 9 Eliz. and you said he was brought hither by the Lieutenant of the Tower who returned that he was committed by the Lords of the Councell and thereupon he was bailed but you shall finde that he came hither to plead his pardon and he was pardoned Vide the Record as aforesaid Thomas Laurence Case in 9 Eliz. is the same with Constables for it appears that he was brought hither to plead his pardon and he was pardoned and that was the cause he was brought hither The next was in 21 Eliz. John Brownings case it is true he was committed by the Lords of the Councell and he was brought by a Habeas Corpus to the chamber of Sir Christopher Wray Chief Justice and he was there bailed The next was 33 Eliz. William Rogers and he you said was brought hither by the Keeper of the Gatehouse who returned that he was committed to him by the Lords of the Councell yet there was a cause expressed and that was for suspition of coining of money The next was in 39 Eliz. Lawrence Brown you say that he was brought hither by the Keeper of the Gate-house who returned that he was committed for divers causes moving the Lords of the Councell and thereupon he was delivered but the Record is that the Return also was for suspition of Treason and although the suspition of Treason appears not in one Record yet there is another for it Here you see cause of his commitment and that he was bailed but it was by the Kings command Vsque
Octabis Michaelis vide the Record I blame not you that are of Councell with these Gentlemen for urging this Record for this Cause is not expressed in your Record but that he was committed by command of the Councell onely but he was committed for suspition of felony with Sir Thomas Smith Vide the Record The next is in 40 Eliz. Edward Harecourts Case and Thomas Wendens Case I bring them together because they are both in one year in the 40 of Eliz. Edward Harecourt you say was committed to the Gatehouse by the Lords of the Councell and the Return was that he was committed by them Certis de causis ipsos moventibus ignotis and he was bailed Here is another in the same time committed to the same prison by the Lords in the Star-chamber it was Thomas Wendens case and he you say was committed by them Certis de causis as the other was and that he was bailed but you shall finde in the margin of the Roll Traditur in ball ' ex assensu Concilii dominae Reginae and that was the relation of the Queens Atturney so that you see how that president fits you The next are two more of the Gatehouse Beckwith and Reyner they you said were committed to the Gate-house brought their Habeas Corpus and the Keeper of the Gatehouse returned that they were committed by vertue of a Warrant from the Archibishop of Canterbury Henry Earl of Northampton Lord Warden of the Cinque Ports and others of the Privy Councell requiring the said Keeper to receive the said Beckwith and Reyner into his charge untill they should have further order from them in that behalf and you say they were bailed Vide the Record in Master Seldens aforesaid Now you shall see the direction to bail him he was bailed by the direction from the Lords of the Councell as appears by their Letter Vide as aforesaid Now we come to Caesars Case in 8 Jacobi you urged that to this purpose you say he was committed to the Marshalsey who upon a Habeas Corpus returned That he was committed Per speciale mandatum domini Regis and you say because the Return was so generall the rule of the Court was that it should be amended or else he should be discharged I will open to you what the reason of that rule was for that notice was taken that the Keeper of the Prison had used a false Return and had usurped the name of the King I know not how but the commitment was not by the Kings command and that was the cause that he had day given him to amend his Return but his body was remaunded to Prison as you shall see the Record Vide the Record c. The last president that you used was that of Sir Thomas Monson and that was so notorious and so late that I marvell that was offered at all it made me jealous of all the rest that was so notorious and now I have omitted none you brought me Vide the Record By this Record you may see that he was committed by divers Lords of the Councell and it was for the suspition of the death of Sir Thomas Overbury and it is notoriously known that he was brought hither to plead his pardon I will not tell you that you read all these presidents for you read none but urged them here before us but we required you to bring them to us and they were brought to us Master Corbet brought them all but one and that Master Noye brought it was in 22 H. 8. Parkers Case And one Master Holborn a man whose face I never saw before nor is he now in mine eye did yesterday bring us one president to this purpose and it was Sir John Brockets Case in 1 Jac. he was committed to the Gatehouse and upon a Habeas Corpus the Keeper returned that Commiss ' suit per Warrantum Dominorum de Privat ' Concilio cujus tenor sequitur in haec verba viz. To the Keeper of the Gatehouse c. vide Master Seldens presidents but see upon what ground he was bailed it was a speciall command of the Lords of the Councell Vide the Record These are all the Records and presidents that you ministred unto us in your Argument and that were delivered unto us for I have dealt faithfully with you and now you have seen them in the Cases I would have any man judge of the conclusion which you made the last day That when a man is committed and the case not known but it is certified to be by the Kings speciall commandment and the Habeas Corpus is procured by your selves and speeded by the King that we can discharge or bail them Then the presidents are all against you every one of them and what shall guide our judgements since there is nothing alledged in this case but presidents that if no cause of the commitment be expressed it is to be presumed to be for matter of State which we cannot take notice of you see we finde none no not one that hath been delivered by bail in the like cases but by the hand of the King or his direction If we should cease here you see you have shewn nothing to satisfie us and we know that you that be of their Councell will satisfie your Clients therein But you shall see that we have taken a little pains in this Case and we will shew you some presidents on the other side and I beleeve there be five hundreth of this nature that may be cited to this purpose I shall go retrograde and go backwards in citing the years of the presidents that I shall mention I will begin with 7 H. 8. Edward Page he was brought hither by the Steward of the Marshalseys who returned that he was committed Per mandatum domini Regis and he was remitted so that he was not delivered upon this generall Return but he was remaunded The next was 12 H. 7. there you shall see a president where one was committed his name was Thomas Yow he was committed for felony and also Per mandatum domini Regis and the Kings Atturney came hither and released the Kings command and thereupon he was bailed Master Noye It is all one with Parkers Case Chief Iustice Hide No for here were two causes of the commitment Hubbert was then the Kings Atturney and he signified in open Court that he was discharged by the Kings command and Postea traditur in ball ' pro suspicione feloniae The next was Humphrey Booths 9 H. 7. Rot. 14. you shall finde it much to that purpose as the other was before he was imprisoned for an outlawry and by the commandment of the King also and after that the release of the Kings commandment was certified to the chief Justice he was thereupon discharged Vide the Record The next is 7 H. 7. Thomas Brown Iohn Rawlings and Robert Sherman and others were committed Per mandatum domini Regis and for felony outlawry and other causes as appears by
the Records and after the King releaseth his commandment and that the outlawry should be reversed and for the felony he was bailed Vide the Record So that you may see the offences mentioned in the Warrant for the commitment were triable here and when the King releases his commandment they were bailed for the rest but they that were committed by the commandment of the King were released by the King In 7 H. 7. the Cases of William Bartholmew Henry Carre and others is to the same effect by all which you may see that when the King releaseth his commandment they were bailed for the rest and as they were committed by the Kings commandment so they were released by the Kings command Now here I shall trouble you with no more presidents and you see your own what conclusion they produce And those strong presidents alledged on the other side we are not wiser then they that went before us and the common custome of the Law is the Common Law of the Land and that hath been the continuall common custome of the Law to which we are to submit for we come not to charge the Law but to submit to it We have looked upon that president that was mentioned by Master Atturney The resolution of all the Judges of England in 34 Eliz. we have considered of the time and I think there were not before nor have been since more upright Judges then they were Wray was one and Anderson another In Easter Term this was certified under the hands of all the Judges of England and Barons of the Exchequer in a duplicate whereof the one was delivered to the Lord Chancellor and the other to the Lord Treasurer to be delivered to the Queen We have compared our copies not taking them the one from the other but bringing them we have long had them by us together and they all agree word for word and that which M. Atturney said he had out of Judge Andersons Book and it is to this purpose to omit other things That if a man be committed by the commandment of the King he is not to be delivered by a Habeas Corpus in this Court for we know not the cause of the commitment Vide this at the latter end of the first part of Master Seldens Argument as aforesaid But the Question now is Whether we may deliver this Gentleman or not you see what hath been the practice in all the Kings times heretofore and your own Records and this resolution of all the Judges teacheth us and what can we do but walk in the steps of our forefathers If you ask me which way you should be delivered we shall tell you we must not counsell you Master Atturney hath told you that the King hath done it and we trust him in great matters and he is bound by Law and he bids us proceed by Law as we are sworn to do and so is the King and we make no doubt but the King if you seek to him he knowing the cause why you are imprisoned he will have mercy but we leave that If in Justice we ought to deliver you we would do it but upon these grounds and these Records and the presidents and resolutions we cannot deliver you but you must be remanded Now if I have mistaken any thing I desire to be righted by my brethren I have indeavoured to give the resolutions of us all TO THE KINGS MOST EXCELLENT MAIESTY The humble Petition of Sir John Elliot Knight Prisoner in the Gatehouse concerning the LOANE Delivered the 10th of Novemb 1627. but never answered SHEWETH THAT your poore suppliant affected with sorrow and unhappinesse through the long sense of your Majesties displeasure willing in every act of duty and obedience to satisfie your Majesty of the loyalty of his heart then which he hath nothing more desired that there may not remain a jealousie in your royall breast that stubbornnesse and will have been the motives of his forbearing to condescend to the said Loan low as your Highnesse foot with a sad yet a faithfull heart for an Apology to your Clemency and Grace he now presumes to offer up the Reasons that induced him which he conceiveth necessity of his duty to Religion Justice and your Majesty did inforce The Rule of Justice he takes to be the Law impartiall Arbiter of Governments and obedience the support and strength of Majesty the observation of that Justice by which subjection is commanded Religion adding to these power not to be resisted binde up the conscience in an Obligation to that rule which without open prejudice and violence of these duties may not be impeached In this particular therefore for the Loan being desirous to be satisfied how farre the Obligation might extend and resolving where he was left master of his own to become servant to your will he had recourse unto the Laws to be informed by them which in all humility he submitteth to your most sacred view in the Collections following In the time of Edw. 1. he findeth that the Commons of that age were so tender of their Liberties as they feared even their own free Acts and gifts might turn them to a Bondage and their heires wherefore it was desired and granted 25 E. 1. That for no businesse such manner of Aids Taxes nor Prizes should be taken but by common assent of the Realm and for the common Profit thereof The like was in force by the same King and by two other Laws again enacted Stat. Tallage 33 E. 1. That no Tallage or Aid should be taken or levied without the good will and assent of the Archbishops Bishops Earls Barons Knights Burgesses and other Freemen of the Land And that prudent and magnanimous Prince Edward the third led by the same Wisdome having granted That the greatest gift given in Parliament for the aid and speed of his matchlesse undertaking against France should not be had in example nor fall to the prejudice of the Subject in time to come did likewise adde in confirmation of that Right That they should not from thenceforth be grieved to sustain any charge or aid but by the common assent and that in Parliament And more particularly upon this point upon a Petition of the Commons afterwards in Parliament it was established Rot. 16. 25 E. 3. That the Loans which are granted to the King by divers persons be released and that none from henceforth be compelled to make such Loans against their wills because it is against reason and the Franchises of the Land and restitution be made to such as made such Loans And by another Act upon a new occasion in the time of Richard the third it was ordained That the Subject in no wise be charged with any such charge exaction or imposition called a Benevolence nor such like Charge and that such like exactions be damned and annulled for ever 1 R. 3. Such were the opinions of these times for all these Aids Benevolences Loans and such like charges exacted
E. 3. c. 3. By the statute 25 Ed. 3. cap. 4. It is ordained and established that no man from henceforth shall be taken by petition or suggestion made to the King or his Councell but by indictment or course of Law and accordingly it was enacted 42 E. â— cap. 3. the title of which statute is None shall be put to answer an accusation made to the King without presentment Then my Lord it being so although the cause should not need to be expressed in such manner as that it may appear to be none of these causes mentioned in the statute or else the Subject by this return loseth the benefit and advantage of these Laws which be their birth-right and inheritance but in this return there is no cause at all appearing of the first commitment and therefore it is plain that there is no cause for your Lordship to remand him but there is cause you should deliver him since the writ is to bring the body and the cause of the imprisonment before your Lordship But it may be objected that this writ of Habeas corpus doth not demand the cause of the first commitment but of the detaining onely and so the writ is satisfied by the return for though it shew no cause of the first commitment but of detaining only yet it declareth a cause why the Gentleman is detained in prison this is no answer nor can give any satisfaction for the reason why the cause is to be returned is for the Subjects liberty that if it shall appear a good and sufficient cause to your Lordship then to be remanded if your Lordship think and finde it insufficient hee is to bee enlarged This is the end of this writ and this cannot appeare to your Lordship unlesse the time of the first commitment be expressed in the return I know that in some cases the time is not materiall as when the cause of the commitment is and that so especially returned as that the time is not materiall it is enough to shew the cause without the time as after a conviction or triall had by Law But when it is in this manner that the time is the matter it self for intend what cause you will of the commitment yea though for the highest cause of treason there is no doubt but that upon the return thereof the time of it must appear for it being before triall and conviction had by Law it is but an accusation and he that is onely accused and the accusation ought by Law to be let to bail But I beseech your Lordship to observe the consequence of this Cause If the Law be that upon this return this Gentleman should be remanded I will not dispute whether or no a man may be imprisoned before he be convicted according to the Law but if this return shall be good then his imprisonment shall not continue on for a time but for ever and the Subjects of this Kingdome may be restrained of their liberties perpetually and by Law there can be no remedy for the Subject and therefore this return cannot stand with the Laws of the Realm or that of Magna Carta Nor with the statute of 28 Ed. 3. ca. 3. for if a man be not baileable upon this return they cannot have the benefit of these two Laws which are the inheritance of the Subject If your Lordship shall think this to be a sufficient cause then it goeth to a perpetuall imprisonment of the Subject for in all those causes which may concern the Kings Subjects and are appliable to all times and cases we are not to reflect upon the present time and government where justice and mercy floweth but we are to look what may betide us in the time to come hereafter It must be agreed on all sides that the time of the first commitment doth not appear in this return but by a latter warrant from the Lords of the Councell there is a time indeed expressed for the continuing of him in prison and that appears but if this shall be a good cause to remand these Gentlemen to prison they may lie there this seven years longer and seven years after them nay all the days of their lives And if they sue out a writ of Habeas corpus it is but making a new warrant and they shall be remanded and shall never have the advantage of the Laws which are the best inheritance of every Subject And in Ed. 3. xfol 36. the Laws are called the great inheritance of every Subject and the inheritance of inheritances without which inheritance we have no inheritance These are the exceptions I desire to offer up to your Lordship touching the return for the insufficiency of the cause returned and the defect of the time of the first commitment which should have been expressed I will not labour in objections till they be made against me in regard the statute of Westminster primo is so frequent in every mans mouth that at the Common Law those men that were committed in four cases were not replevisable viz. those that were taken for the death of a man or the commandment of the King or his Justices for the forest I shall speak something to it though I intend not to spend much time about it for it toucheth not this Case we have in question For that is concerning a Case of the Common Law when men are taken by the Kings writs and not by word of mouth and it shall be so expounded as Master Stamford fol. 73. yet it is nothing to this Case for if you will take the true meaning of that statute it extends not at all to this writ of Habeas corpus for the words are plain they shall be replevisable by the Common writ that is by the writ de homine replegiando directed to the Sheriffe to deliver them if they were baileable but this Case is above the Sheriffe and he is not to be Judge in it whether the cause of the commitment be sufficient or not as it appears in Fitz Herbert de homine replegiando and many other places and not of the very words of the statute this is clear for thereby many other causes mentioned as the death of a man the commandment of the Justices c. In which the statute saith men are not replevisable but will a man conceive that the meaning is that they shall not be bailed at all but live in perpetuall imprisonment I think I shall not need to spend time in that it is so plain let me but make one instance A man is taken de morte hominis he is not baileable by writ saith this statute that is by the common writ there was a common writ for this Case and that was called de odio acia as appeareth Bracton Coron 34. this is the writ intended by the statute which is a common writ and not a speciall writ But my Lord as this writ de odio acia was before this statute so it was afterwards taken away by
Court doth it at pleasure But plainly by the Statute it self it appears that it meant only to the common writ for the preamble recites that the Sheriffs and other have taken and kept in prison persons detected of felony and let out to plevin such as were not reprisable to grieve the one party and to the gain of the other and forasmuch as before this time it was not determined what prisoners were reprisable which not but onely in certain cases were expressed therefore it is ordained c. Now this is no more but for direction of the keepers of the prisons for it leaves the matter to the discretion of the Judges whether bailable or no not of the Judges for when the Statute hath declared who are repleviable who are not as men outlawed have abjured the Realm Proves such as be taken in the manner breakers of prisons burners of houses makers of false money counterfeiting of the Kings Seal and the like it is then ordained that if the Sheriffe or any other let any goe at large by surety that is not reprisable if he be Sheriffe Constable or any other that hath the keeping of prisons and thereof be attainted he shall lose his office and fee for ever so that it extends to the common Gaolers and keepers of prisons to direct them in what cases they shall let men to bail and in what cases not that they shall not be Judges to whom to let to replevin and whom to keep in prison but it extends not to the Judges for if the makers of the Statute had meant them in it they should have put a pain upon them also So then I conclude upon these under your Lordships favour that as this case is there should have been a cause of the commitment expressed for these Gentlemen are brought hither by writ ad subjiciendum if they be charged and ad recipiendum if they be not charged and therefore in regard there is no charge against them whereupon they should be detained in prison any longer we desire that they may be bailed or discharged by your Lordship Master Seldens Argument at the Kings Bench Bar the same day My Lords I am of Councell with Sir Edmond Hampden his case is the same with the other two Gentlemen I cannot hope to say much after that that hath been said yet if it shall please your Lordship I shall remember you of so much as is befallen my lot Sir Edmond Hampden is brought hither by a writ of Habeas corpus and the keeper of the Gatehouse hath returned upon the writ that Sir Edmond Hampden is detained in prison per speciale mandatum domini Regis mihi significatum per Warr antum duorum Privati Concilii dicti domini Regis and then he recites the warrants of the Lords of the Councel which is that they doe will and require him to detain this Gentleman still in prison letting him know that his first imprisonment c. May it please your Lordship I shall humbly move you that this Gentleman may also be bailed for under favour my Lord there is no cause in the return why he should be any farther imprisoned and restrained of his liberty My Lord I shall say something to the form of the writ and of the return but very little to them both because there is a very little left for me to say My Lord to the form I say it expresseth nothing of the first caption and therefore it is insufficient I will adde one reason as hath been said the Habeas corpus hath onely these words quod habeas corpus ejus una cum causa detentionis non captionis But my Lord because in all imprisonment there is a cause of caption and detention the caption is to be answered aswell as the detention I have seen many writs of this nature and on them the caption is returned that they might see the time of the caption and thereby know whether the party should be delivered or no and that in regard of the length of his imprisonment The next exception I took to the form is that there is much incertainty in it so that no man can tell when the writ came to the keeper of the prison whether before the return or after for it appears not when the Kings command was for the commitment or the signification of the Councell came to him It is true that it appears that the warrant was dated the seventh of November but when it came to the keeper of the prison that appeares not at all and therefore as for want of mentioning the same time of the caption so for not expressing the same time when this warrant came I think the return is faulty in form and void And for apparent contradiction also the return is insufficient for in that part of the return which is before the warrant it is said quod detentus est per speciale mandatum domini Regis the warrant of the Lords of the Councell the very syllables of that warrant are that the Lords of the Councell doe will and require him still to detain him which is contrary to the first part of the return Besides my Lord the Lords themselves say in another place and passage of the warrant that the King commanded them to commit him and so it is their commitment so that upon the whole matter there appears to be a clear contradiction in the return and there being a contradiction in the return it is void Now my Lord I wil speak a word or two to the matter of the return and that is touching the imprisonment per speciale mandatum domini Regis by the Lords of the Councell without any cause expressed and admitting of any or either of both of these to be the return I think that by the constant and settled Laws of this kingdome without which we have nothing no man can be justly imprisoned by either of them without a cause of the commitment expressed in the return My Lord in both the last Arguments the statutes have been mentioned and fully expressed yet I will adde a little to that which hath been said The statute of Magna Carta cap. 29. that statute if it were fully executed as it ought to be every man would enjoy his liberty better then he doth The Law saith expresly no Free-man shall be imprisoned without due processe of the Law out of the very body of this Act of Parliament besides the explanation of other statutes it appears Nullus liber homo capiatur vel imprisonetur nisi per legem terrae My Lord I know these words legem terrae doe leave the question where it was if the interpretation of the Statute were not But I think under your Lordships favour there it must be intended by due course of Law to be either by presentment or by indictment My Lords if the meaning of these words Per legem terrae were but as we use to say according to the lawes which leaves the matter very
the same by whomsoever he be committed so ought the cause of his imprisonment to be shewn upon the return so that the Court may adjudge of the cause whether the cause of the imprisonment be lawfull or not and because I will not trouble the Court with so many presidents but such as shall suit with the cause in question I will onely produce and vouch such presidents whereas the party was committed either by the commandment of the King or otherwiâ—e by the commandment of the Privy Councell which Stampford fol. 72. tearmeth the mouth of the King such Acts as are done by the Privy Councell being as Acts done by the King himself And in all these causes you shall finde that there is a cause returned as well as a speciale mandatum domini Regis c. or mardatum Privati Concilii domini Regis whereby the Court may adjudge of the cause and bail them if they shall see cause In the eighth of Henry the seventh upon return of an Habeas corpus awarded for the body of one Roger Sherry it appeareth that he was committed by the Mayor of Windsor for suspition of felony and ad sectam ipsius Regis pro quibusdam feloniis et transgressionibus ac per mandatum domini Regis 21 Hen. the seventh upon the return of an Habeas corpus sent for the body of Hugh Pain it appeared that he was committed to prison per mandatum dominorum Privati Concilii domini Regis pro suspicione feloniae Primo Henrici Octavi Rot. 9. upon the return of an Habeas corpus sent for the body of one Thomas Harrison and others it appears that they were committed to the Earl of Shrewsbury being Marshall of the houshold Per mandatum domini Regis et pro suspicione feloniae et pro homicidio facto super Mare 3 4 Philip. et Mariae upon a return of an Habeas corpus sent for the body of one Peter Man it appeareth that he was committed pro suspicione feloniae ac per mandatum domini Regis et Reginae 4 5 Philippi et Mariae upon the return of an Habeas corpus sent for the body of one Thomas Newport it appeared that he was committed to the Tower pro suspicione contrafact mcnetae per privatum Concilium domini Regis et Reginae 33 Elizabethâ—… upon the return of an Habeas corpus for the body of one Lawrence Brown it appeareth that he was committed Per mandatum Privati Consilii dominae Reginae pro diversis â—ausis ipsam Reginam tangen ac etiam pro suspicione proditicnis So as by all these presidents it appeareth where the returne is either Per mandatum domini Regis or Per mandatum dominerum Privati Concilii domini Regis there is also a cause over and besides the mandatum returned as unto that which may be objected that per mandatum domini Regis or Privati Concilii domini Regis is a good return of his imprisonment I answer First that there is a cause for it is not to be presumed that the King or Councell would commit one to prison without some offence and therefore this mandatum being occasioned by the offence or fault the offence or fault must be the cause and not the command of the King or Councell which is occasioned by the cause Secondly it appears that the jurisdiction of the Privy Councell is a limited jurisdiction for they have no power in all causes their power being restrained in certain causes by severall Acts of Parliament Vide 4 Instit fol. 53. as it appeareth by the statute of 20 Edward the third c. 11. 25 Ed. the third c. 1. stat 4. the private petition in Parliament permitted in the 1 of R. 2. where the Commons petition that the Privy Councell might not make any Ordinance against the Common Law Customes or Statutes of the Realm the fourth of Henry the fourth ca. 3. 13 Hen. the fourth 7. 31 H. the sixth and their jurisdictions being a limited jurisdiction the cause and grounds of their commitment ought to appear whereby it may appear if the Lords of the Councell did commit him for such a cause as was within their jurisdiction for if they did command me to be committed to prison for a cause whereof they had not jurisdiction the Court ought to discharge me of this imprisonment and howsoever the King is Vicarius Dei in terra yet Bracton cap. 8. fol. 107. saith quod nihil aliud potest Rex in terris cum sit Minister Dei Vicarius quam solum quod de jure potest nec obstat quod dicitur quod Principi placet legis habet vigorem quia sequitur in fine legis cum lege Regia quae de ejus imperio lata est id est non quicquid de voluntate Regis temere praesumptum est sed animo condendi Jura sed quod consilio Magistratuum suorum Rege author praestant et habita super hoc deliberatione et tract rect fuer definit Potestat itaque suajuris est non injuriae The which being so then also it ought to appear upon what cause the King committeth one to prison whereby the Judges which are indifferent between the King and his Subjects may judge whether his commitment be against the Laws and Statutes of this Realm or not Thirdly it is to be observed that the Kings command by his Writ of Habeas Corpus is since the commandment of the King for his commitment and this being the latter commandement ought to be obeyed wherefore that commanding a return of the body cum causa detentionis there must be a return of some other cause then Per mandatum domini Regis the same commandment being before the return of the Writ Pasch 9 E. 3. pl. 30. fol. 56. upon a Writ of Cessavit brought in the County of Northumberland the Defendants plead That by reason the Country being destroyed by Wars with the Scots King Edward the second gave command that no Writ of Cessavit should be brought during the Wars with Scotland and that the King had sent his Writ to surcease the Plea and he averreth that the Wars with Scotland did continue Hearle that giveth the Rule saith That we have command by the King that now is to hold this Plea wherefore we will not surcease for any Writ of the King that is dead and so upon all these reasons and presidents formerly alledged I conclude that the return that Sir John Corbet was committed and detained in prison Per speciale mandatum domini Regis without shewing the nature of the commandement by which the Court may judge whether the commandement be of such a nature as he ought to be detained in prison and that without shewing the cause upon which the commandement of the King is grounded is not good As unto the second part which is Whether the time of the commitment by the return of the Writ not appearing unto the Court the Court ought to detain him in
here by me and I shall not take it ill if they right me Therefore I must tell you there hath been many points learnedly argued at the Bar which we shall not touch or give our resolution upon but bend our selves to the point in judgement here These three Statutes as for example the statute of Magna Charta 25 E. 3. and 36 E. 3. and the statute of Westminster primo divers other statutes that have been alledged particularly disputed of we all acknowledge and resolve that they are good Laws and that they be in force but the interpretation of them at this time belongs not to us for we are driven to another point and though the meaning of them belongs to the one way or the other yet our judgement must be the same for that which is now to be judged by us is this whether one that is committed by the Kings authority and no cause declared of his commitment according as here it is upon this return whether we ought to deliver him by bail or to remaund him back againe Wherein you must know this which your Councell will tell you we can take notice onely of this return and when the case appears to come to us no otherwise then by the return wee are not bound to examine the truth of the return but the sufficiency of it for there is a great difference between the sufficiency and the truth We cannot judge upon rumours nor reports but upon that which is before us on record and therefore the Return is examinable by us whether it be sufficient or not The exceptions which have been taken to this Return were two the one for the form the other for the substance For the form whether it be formally returned or no for it is not returned as it is said positively and absolutely that they were committed by the King but as it appears by a warrant from the Lords of the Councell and then there seems to bee a contradiction in the return For first it saith they were committed by the Kings command and afterwards it alledgeth it to be by a warrant of the Lords of the Councell and so it is repugnant Now we conceive that this is a positive and an absolute Return and so the reason is that he first returns that they are detained by the speciall command of the King and if he had ceased there it had been positive now there follows that this was signified to them by the Lords of the Councell this is returned to ascertain the Court that he returned the cause truly and to shew us that we should not doubt the verity of this return not to shew to us that he hath no knowledge of the cause but by the signification of the Lords of the Councell according to that case of the Bishop of Norwich touching the excommunication he must testifie his own knowledge and not continetur in Archivis so a Sheriffe must not return quod mandavi ball ' c. and he gives this answer unlesse it be the Bailiffe of a Liberty that hath return of writs And so here if the Warden of the Fleet had returned that the Lords of the Councell had signified unto him that his prisoner was detained by the Kings commandment that had been sufficient but when he returns positively at the first that is done by the Kings direction hee shews afterwards that which should make it appear that he deals not falsly which might have been omitted but being mentioned that that is the scope of it and not otherwise the return is good and positive Now then to the other objections because he speaks nothing of the caption why they were taken you know it is the usuall return of all Officers to answer the point in question there is not one word in the Writ that demands the cause why they were taken but why they are detained so that the point in the Writ is sufficiently answered for though sometimes it is necessary that the cause of the caption should be certified yet sometimes it is superfluous but in our case the cause of the detention is sufficiently answered which is the demand of the Writ and therefore we resolve that the form of this Return is good The next thing is the maine point in Law whether the substance or matter of the Return be good or no wherein the substance is this he doth certifie that they are detained in prison by the speciall command of the King and whether this be good in Law or no that is the question To this purpose if you remember this point I say you did not cite any Book or Case in print but many presidents which I confesse are as strong as any Book Cases for Book Cases I confesse are taken and selected out of the Records and Resolution of Judges and that is it which is in our Books though they be not so obvious for every eye but are found out by pains and diligent search and being produced are of the same and equall authority with our Book Cases but this must be when Records are brought faithfully and entirely so that the Court may adjudge of them Now the presidents you urged them to be so many and so fully to the point that wee may thereby see that it is good to hear what can be said on both sides and for to heare all and view the Records themselves and therefore we required you to bring the Records to us and you did so and you brought us more then you mentioned here and we have perused them all that thereby we might see whether the Court be faithfully dealt withall or no for though Counsellors may urge a Book for their own advantage yet it is the duty of the Court to see and distinguish of their allegations as the truth may appear This I told you yesterday when I told you your presidents warranted not so much as you urge them for for if you be remembred you urge some presidents to be that where men were committed by the King or by the Lords of the Councell and no cause expressed why they were committed they were delivered This is in effect our case if the presidents affirm that when a man is committed by the Kings command and no just cause is shewn that upon such a generall Return the party shall ipso facto be delivered for if the Return be not amended that he shall be discharged For although men come with prepared minds yet the preparation of every mans heart ought to submit to the truth and by the presidents you shall see if it be so as you have alledged but this I dare affirm that no one of the Records that you have cited doth inforce what you have concluded out of them no not one and therefore as you have cited Records and Presidents Presidents shall judge this case I will shew you how they differ from the Records you have concluded when the King hath committed one and expresseth not the cause the