THE ARGVMENTS UPON THE WRIT OF Habeas Corpus IN THE COURT OF KINGS BENCH WHEREIN Are learnedly discussed not onely the severall Branches of the said Writ but also many Authorities as well of the Common as Statute Law and divers ancient and obscure Records most amply and elaborately debated and cleared TOGETHER With the Opinion of the Court thereupon Whereunto is annexed The Petition of Sir Iohn Elliot Knight in behalf of the Liberty of the Subject LONDON Printed by M. F. for W. Lee M. Walbancke D. Pakeman and G. Bedell 1649. ARGUMENTS upon the Habeas Corpus concerning Loans Sir Thomas Darnell his Case Michaelis 3º Caroli Banco Regis SIR Thomas Darnell Baronet being imprisoned in the Fleet by vertue of a warrant signed by the Kings Atturney Generall upon the third of November by Sergeant Bramston his assigned Councell moved the Justices of the Kings Bench to grant him a Writ of Habeas Corpus cum causa directed to the Warden of the Fleet to shew that Court the cause of his imprisonment that thereupon they might determine whether his restraint were legall or illegall and it was granted by the Court returnable Thursday following the 8th day of November On Thursday Sir Thomas Darnell expected that his Writ should be returned but it was delaied and it was moved that the return should be on Saturday the tenth of November which made Sir Thomas Darnell the more remisse in suing out an Alias upon his Habeas corpus On Saturday the Writ was not returned and thereupon the Kings Atturney Generall gave order for an Alias upon the Habeas corpus for Sir Thomas Darnell returnable upon Thursday morning the thirteenth of November by vertue of which Writ the Warden of the Fleet brings Sir Thomas Darnell to the Kings Bench and returneth as followeth Executio istius brevis patet in quadem schedula annexat ' huic brevi The Return was this Ego Henricus Liloe Miles gardianus prisone Domini Regis de le Fleet Serenissimo domino Regi certifico quod dict' Thomas Darnell Baronet detentus est in prisona praedict ' sub custodia mea virtute cujusdam Warranti duorum de privato Consilio mihi directi cujus tenor sequitur in his verbis viz. Whereas heretofore the body of Sir Thomas Darnell hath been committed to your custody these are to require you still to continue him and to let you know that he was and is committed by the speciall command of his Majesty c. Et haec est causa detentionis predict ' Thomae Darnell Sergeant Bramston May it please your Lordship I did not expect this Cause at this time neither did I hear of it untill I came now into the Hall and therefore I shall now humbly shew you what my Client hath informed me since my comming hither I understand by him that he expected not his comming to this place to day the writ by which he was brought hither was not moved for by him but was procured without his privity and seeing his case is so and that he perceives the cause of his comming which before he knew not his motion to your Lordship is that you would be pleased to let him have the Copy of the return and give him time to speak unto it and that this writ being not sent out by his procurement may not be field Heath Attorney Generall My Lords it is true that this Gent. Sir Thomas Darnell being imprisoned in the Fleet did heretofore move your Lordship for a Habeas Corpus c. and it was granted him and his Majesty being made acquainted therewith was very willing that he and all his people might have equall Justice and when they desire that which seemes to accord with the rules of the Law they should have it But it fell out so that on the day when the writ should have been returned the Warden of the Fleet did not return it as it was his duty to have done he did forbear to do it upon a commandement because it was conceived there being five at that time to appear the Court would have been straitned for want of time but I imagined that these gentlemen who did desire the writ before should have again been earnest to renew them which it seemes they did not This Habeas Corpus was sent out by speciall command because these gent. gave out in speeches and in particular this gent. That they did wonder why they should be hindred from triall and what should be the reason their writs were not returned nay his Majesty did tell me that they reported that the King did deny them the course of Justice and therefore hee commanded me to renew the writ which I did and think I may doe it ex officio Sir Thomas Darnell My Lords I knew not untill now but that I was committed by Mr. Atturneys warrant only and thereupon I did desire a Habeas corpus at the Barre which you were pleased to grant me but now I understand that my restraint is by another means and therefore I shall crave leave to have some time to speak to it And as for the words alledged against me as if I had spoken them I humbly pray they may be no disparagement to my cause for I do patiently referre my self to your grave censures as being accused of a fact whereof I am no ways guilty Hide Chiefe Justice You give a temperate and fair answer and now you may perceive the upright and sincere proceedings that have been in this businesse you did no sooner petition to have Councell assigned you but you had it granted to you for indeed we cannot deny it and I know not but that any Councell might have moved for you without having been assigned for you and yet have had no blame for it is the Kings pleasure his Lawes should take place and be executed and therefore doe wee sit here when you made a motion of the Habeas corpus that was likewise granted whether the commitment be by the King or others this Court is a place where the King doth sit in person and we have power to examine it and if it appears that any man hath injury or wrong by his imprisonment we have power to deliver and discharge them if otherwise he is to be remanded by us to prison again now it seems you are not ready to speak to this return if you desire further day we ought to grant it Sir Thomas Darnell My Lords I humbly desire it Chief Justice I know no cause why it should be denied Sergeant Bramston My Lords we shall desire the writ may not be filed and that we may have a Copy of the return Atturney Generall You cannot deny the filing of the writ if you desire to have a Copy of the return Chief Justice Although you be remanded at this time to prison because you are not ready to speak to the return we can adjorn you to a new day upon the Writ and so you may prepare your self but
benefit of that Law and be delivered from their imprisonment Master Noye his Argument of Councell with Sir Walter Earl at that time May it please your Lordship I am of Councell with Sir Walter Earl one of the prisoners at the Barre the return of this writ is as those that have been before they are much of one tenour and as you have heard the tenour of that so this Gent. coming hither by an Habeas Corpus I will by your Lordships favour read the writ Carolus Dei Gratia c. Iohanni Lylo Milit ' Guardian ' Prison ' nostrae de le Fleet Salut ' Praecipimus tibi quod corpus Walteri Earl Milit ' in prison ' nostra sub custodia tua detent ' ut dicit una cum causa detentionis suae quocunque nomine praedict ' Walter ' censeat in eadem Habeas Corpus ad subjiciendum recipiendum ea quae curia nostra de eo ad tunc ibidem ordin ' conting ' in hac parte haec nullatenus omit ' periculo incumbent ' habeas tibi hoc breve Test ' Hyde apud Westminster quarto die Novembris Anno 8. Executio istius brevis patet in quadam schedula huic brevi annexat ' Prisonum Regis de le Fleet. Respons Johan ' Liloe Guardian ' Prison ' de le Fleet. Ego Iohannes Lyloe Mil ' Guardian ' Prison ' domini Regis de le Fleet Serenissimo Domino Regi apud Westminster ' 8. Post receptionem hujus brevis quod in hac schedula est mentionat ' Certifico quod Walter Earl miles in eodem brevium nominat ' detentus est in Prisona de le Fleet sub custodia mea praedict ' per speciale mandatum domini Regis mihi significatum per Warrantum duorum aliorum de Privato Concilio per Honorabilissimi dicti Domini Regis cujus quidem tenor sequitur in haec verba Whereas Sir Walter Earle Knight was heretofore committed to your custody these are to will and require you still to detain him letting you know that both his first commitment and this direction for the continuance of him in prison were and are by his Majesties speciall commandment from White Hall 7 Novembris 1627. Thomas Coventree C. S. Henry Manchester Thomas Suffolk Bridgewater Kellie R. Duneln ' Thomas Edmunds John Cook Marlebrugh Pembrook Salisbury Totnes Grandisson Guliel ' Bath Wells Robert Nanton Richard Weston Humphrey Mayes To the Guardian of the Fleet or his Deputy Et haec est causa detentionis praedict ' Walteri Earl sub custodia mea in Prison ' praedict ' Attamen corpus ejusdem Walteri coram Domino Rege ad diem locum praedictum post receptionem brevis praedict ' parat ' habeo prout istud breve in se exiget requiret Respon ' Johan ' Liloe milit ' Guardian Prison de le Fleet. My Lord the first Habeas corpus bears date the 4 of November then there is an Alias habeas bears Teste after that and the tenour thereof is a command to the Warden of the Fleet quod habeas corpus Walteri Earle coram nobis ad subjiciendum recipiendum ea quae curia nostra de eo c. ordin ' conting And the Warden of the Fleet he certifies as your Lordship have heard May it please your Lordship I desire as before was defired for the other Gentlemen that Sir Walter Earl may bee also bailed if there be no other cause of his imprisonment for if there were a cause certified and that cause were not sufficient to detain him still in prison your Lordship would baile him and if a man should bee in worse case when there is no cause certified at all that was very hard The writ is that he should bring the prisoner coram nobis before the King the end of that is ad subjiciendum recipiendum now I conceive that though there be a signification of the Kings pleasure to have this Gentleman imprisoned yet when the King grants this writ to bring the prisoner hither ad subjiciendum recipiendum his pleasure likewise is to have the prisoner let goe if by Law he be not chargeable or otherwise to detain him still in prison if the case so require it I will put your Lordship in minde of a case and it was Pasch 9 Ed. 3. M. 3. I will cite by the placita because my Book is not paged as other Books are it is in the case of a Cessavit In that case there were two things considerable the one that there was a signification of the Kings pleasure past and that determined with him the other that though there was a signification of the Kings pleasure before which was yet there comes after that a writ and that was another signification of the Kings pleasure that the prisoner shal be brought hither ad subjiciendum to submit himself to punishment if he have deserved it or ad recipiendum to receive his enlargement and be delivered if there be no cause of his imprisonment And if upon an Habeas corpus a cause of commitment bee certified that cause is to be tried here before your Lordship But if no cause be shewn then the proceedings must be ut curia nostra ad mar ' contigerit the Court must doe that which stands with Law and Justice and that is to deliver him My Lord I shall be bold to move one word more touching this return I conceive that every Officer to a Court of Justice must make his return of his own act or of the act of another and not what he is certified of by another But in this case the Warden of the Fleet doth not certifie himself of himselfe that this Gentleman was commanded to him by the King but that he was certified by the Lords of the Councell that it was the Kings pleasure that he should detain him But in our case the Warden of the Fleet must certifie the immediate cause and not the cause of the cause as it doth by this return Detentus est sub custodia mea per speciale mandatum Domini Regis mihi significatum per Warrantum duorum de Privato Concilio that is not the use in Law but he ought to return the primary cause and not the subsequent cause as in 32 Edw. 3. returne Rex vicecom ' 87. in a writ De homine replegiando against an Abbot the Sheriffe returns that hee hath sent to the Bayliffe of the Abbot and he answered him that the party was the Abbots villain and so he cannot deliver him that is held an insufficient return and a new Alias was granted but if the Sheriffe had returned that the Abbot did certifie him so it had been good but he must not return what is certified him by another In one of the presidents that hath been noted as that of Parker 22 Hen. 8. there the Guardian of the prison certifies that Parker detentus est sub custodia mea per mandatum
in those times that the King might then give such commandment for committing the scope of this statute had two hands first that the Warden should forfeit his office and secondly that he should recompence the party In the fourth and fifth of Phil. Mar. Dier 162. it was resolved that if the Warden shall deliver a man out of prison without command hee forfeiteth his office and damage unto the party But if he have the command of the King that shall excuse the forfeiture of his office but he must bring the party hither and here these Gentlemen are now for that commandment of the King is no exception for him not to observe If he receives a writ from this Court to shew the Court from whence he receives his warrant it may excuse the forfeiture of his office but notwithstanding he is subject to the action of the party But I desire your Lordship to observe that part of the statute which the other party would not make use of which is that the King may command by writ or otherwise these were all the printed statutes cited by the Councell on the other side But because I would not misinterpret these statutes I thought it equall to desire your Lordship that they might be read Besides the printed statutes they mentioned Petitions by the Commons and the Answers to them of severall Kings in Parliament The first is Rot. pl. â—6 Ed. 3. Numero primo Numero vicesimo besides these two there is one other of 28 Ed. 3. nu 18. My Lord these three petitions and their answers the two first were mentioned by the Councell on the other side that in 28 E. 3. 28. I have produced all of them even to one purpose The Commons then petitioned the King that all the Statutes made in exposition of Magna Charta and of the Forest may be kept and observed The King makes answer that it shall be done And in one of the answers it is said If any man be grieved he may complain But what is all this to the point in question could there be any other answer to give life to these requests The King he is petitioned that some are injured he answers That if they complain they shall be relieved And now my Lord we are where we were to finde out the true meaning of Magna Charta for there is the foundation of our Case all this that hath been said concerneth other things and nothing to the thing in Question There is not a word either of the commitment of the King or commandment of the Councell in all the Statutes and Records And now my Lord I am at an end of those Statutes and come to that that was alledged and mentioned to be in 3 H. 6. 46. and if I could have found it I would have brought it but I could not finde it therefore if they have it I desire that they will shew it but I think they have it not and therefore I will let that goe And now my Lord I come to that which I insisted upon the Question as it was at first not whether the King or the Lords of the Councell can commit a man and shew no cause wherefore they do commit him but whether the ordinary Courts of Justice have power to bail him or no for that I will insist upon the Statute of Westm primo which I desire your Lordship may be read and then I will apply Cap. 15. Mainprise Br. 11 56 78 Dier 170. Vide Westm primo My Lord this Statute if I misunderstand it not is a full expression to this purpose of Magna Charta the scope whereof is to direct us in what case men imprisoned were to be bailed It was especially for direction to the Sheriffes and others but to say Courts of Justice are excluded from this Statute I conceive it cannot be It recites that whereas heretofore it was not resolved in what cases men were replevisable and in what cases not but onely in these four cases For the death of a man or by the commandement of the King or of his Justices or of the Forest My Lord I say that this Statute expresseth not the Law was made by this Statute that in these cases men were not replevisable but it expresseth that the Law was clear in these cases In these four cases it was clearly resolved before I pray you my Lord observe the time of the making of this Statute that of Magna Charta was made in the time of Henry the third and this of Westminster in the time of Edward the first so that the first it was made in the time of the same And my Lord if they had understood the Statute of Magna Charta in another sense would they not have expressed it so in this Statute was it not fitter for them then for us they being nearer the first making of Magna Charta then we are But certainly the Statute of Magna Charta was expounded at the time as I have shewed before if not without all doubt at the time of making of Westm primo The Parliament would not have been so carefull to provide for things of lesser moment and omit this of so great consequence if there had been any question of it In all times and ages Magna Charta hath been confirmed but they shew not any one Law that doth except against this positive Law of Westminster the first or any Acts of Parliament nay more in any printed books that in this case men should be replevisable My Lord if you know nothing printed or unprinted if any will desire to alter a course that always hath been held you will seek for presidents for the constant use and course is the best exposition of the Law it is not enough for me to say this it is unlesse I make it good First then I say they on the other side cannot cite one Book late Statute or other thing to prove That they that have been committed Per speciale mandatum domini Regis are bailable But my Lord I finde some to the contrary that they are not bailable and I will cite some of them and read of others for I would not in a case of that expectation that it should be thought that any thing should be mis-interpreted In the 33 of Hen. the sixth folio vicesimo tertio Robert Poynings Case he was committed Pro diversis causis ipsum dominum Regem tangent ' this alters not the case for it was as good as no cause for it was the Warrant Domini Regis and there is no question upon this But my Lord I know this is not the point in question The next thing I shall shew unto your Lordship is Pasch 21 Edvardi primo Rot. cla secund and this my Lord was near the time of making of the Statute of Westm prim and this president is to this purpose The Sheriffe of Leicestershire and Warwickshire for then there was but one Sheriffe to both those Shires did receive
signification of the command was given by Master Peck of Cliffords Inne but there the Warrant shews the cause of the commitment was for the peace and suspition of felony and therefore he was bailed The next was in 40 Eliz. Wendons Case but my Lord that commitment was out of the Star-chamber by an ordinary course Then they cited 8 Jac. Thomas Caesars Case he indeed was committed by Speciale mandatum domini Regis and brought his Habeas Corpus but the Roll saith remittitur and is that a Warrant for them to say that he was delivered Then Sir Thomas Vernons Case was cited and my Lord when we looked into the Records we found that he was committed for suspition of Treason and he was tried for it and discharged The next president was Sir Thomas Monsons Case I wonder that they did cite that for he was committed by the Lords of the Councell indeed but the ground of it was the suspition of the death of Sir Thomas Overbury and he was discharged again by the Lords of the Councell Certainly if you had known this you would not have named this as a president for you The next was Reynors Case he my Lord was one of the Gunpowder-Treason and yet there was a Warrant to discharge him too And therefore what these presidents are I shall submit to your Lordship I must confesse when they are cited together they make a great noise but when they are examined severally they prove nothing My Lord there is one more president of these that were cited here before your Lordship and I hope that one shall be as none It was mentioned to be Lawrence Browns Case 30 Eliz. I know not what it is but it is like to be of the same value as the rest Pro certis causis eos moventibus c. And thus my Lord I have gone through those presidents that were alledged here before your Lordship and now I will come to these presidents that were brought to me and not mentioned here The first was John Brownings Case in 21 H. 8. My Lord these presidents came not to me before Saturday last about candle-lighting and yesterday was no time fitting to search out presidents and how could I then search for this The next was William Rogers Case of the same time But the cause is expressed to be for suspition of felony which is a cause within the Jurisdiction of this Court Newports Case was the like in 4 5 Phil. Mar. and so was Thomas Lawrence Case 9 Eliz. and Edw. Harecourts Case 5 Eliz. which was for suspition of felony Richard Beckwith and not Barkwith as was cited for they have mistaken both names and matters was committed Per speciale mandatum domini Regis and the Record saith he was bailed But it was by reason of a letter from the Lords of the Councell The cause of Peter mans commitment in the 4 and 5 of Philip and Mary appears to be for suspition of felony and robbery For Reynors case it is the same with Beckwith and were both for one thing In the eighth of Henry the seventh one Rog Cherry was committed Per mandatum domini Regis and it was for a criminall case and he was afterwards indicted and acquited and delivered And there is another president thereof that saith he was afterwards arraigned condemned and hanged we have the Record of it And now my Lord I will shew some presidents on the other side where men have been committed by the commandement of the King and by the commandement of the Councell and have been delivered again by their directions And of this kinde there be two in the Tower that as they were committed by Warrant so by Warrants again for their bailing they were delivered the offences were against the Forest and for Murther In the fourth of Edward the third M. 4. Edmond de Newport in Essex was indicted for an offence committed by him in the Forest And M. 7. John Fox was likewise indicted for an offence by him done in the Forest and there be two Warrants to bail them M. 20. John Cobb was the like and there was a letter from the King Quod ponatur in Ballium usque ad proximam Assisam These were offences within Westminster primo and there be severall Warrants to bail them The Clark of this Court hath many Records by which it appeareth that many have been committed by the command of the King and of the Queen and of the Councell and brought their Habeas Corpus and the successe was that many of them were committed to the same Prisons and divers were committed to the Marshall of this Court the reason was for that many of them were to appear here their causes being triable here and it would have been a great trouble to send them back so farre to Prison as into the Countries and therefore they were delivered to the Marshall of the Kings Houshold again many had their Trials in this Court and some suffered and some were delivered by speciall command as they were committed by speciall command The number of these of this nature are infinite that have been in our times we have found some forty presidents of men committed out of the Chancery and by the High Commission for contempts and some by the Barons of the Exchequer and some in London that have been brought hither by Habeas corpus Of this I shall observe that in the 11 Iacobi there was a private Constitution in London made between the white Bakers that they might live one by another and the one not to invade the others liberties and for contempt against this Ordinance some were committed to prison as Thomas Heanning and Littlepage they had a Habeas corpus and the cause was shewn to be by reason of the said Constitution and thereupon the prisoners were sent back to London to abide the Order of the Mayor for my Lord this Court hath been ever carefull not to examine the Decrees of the Chancery or Court of Requests but have only looked whether the cause returned be within the jurisdiction of this Court nor have they called in question the by-laws and constitutions of London but they send them back to the court of Justice that committeth them And hath this Court been so carefull of these inferiour Courts to this which is the chief and when the King who is the head of Justice shall commit a man shall not they be as carefull to do the like Justice to them But when the King saith to them the commitment was by my warrant and commandment will you question this and whether this commitment be good or no I hope you will not And now my Lords touching some presidents which have been taken out of their own shewing I shall make it appear that as they have been committed by the King or Councel so they had warrants also to discharge them and they my Lords are two ancient Records the first is 7 H. 7. Rot. 6. the other Rot. 73.
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
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
Domini Regis mihi nunciatum per Robertum Pecke now our case is by the Nunciation of many but in Law majus minus non variant in spetione the certification of one and of many is of the same effect although in morall understanding there may bee a difference Trin. 2 Ed. 3. Rot. 46. in this Court in 21 Ed. 3. in the printed Book there is a peece of it The Abbot of Burey brings a prohibition out of this Court the Bishop of Norwich pleadeth in Bar of that Quod mihi testificatum quod continetur in Archivis that he is excommunicated there were two exceptions taken to this case in this president and they are both in one case the first was that no case appeareth why he was excommunicated there may be causes why he should be excommunicated and then he should be barred and there may be causes why the excommunication should not barre him for it may be the excommunication was for bringing the action which was the Kings writ and therefore because there was no cause of the excommunication returned it was ruled that it was not good The other reason is that upon the Roll which is mihi testificatum Now every man when he will make a Certificate to the Court Proprium factum suum non alterius significare debet he must inform the Court of the immediate act done and not that such things are told him or that such things are signified unto him but that was not done in this case and therefore it was held insufficient and so in this case of ours I conceive the return is insufficient in the form there is another cause my Lord for which I conceive this return is not good But first I will be bold to inform your Lordship touching the Statute of Magna Charta 29. Nullus liber homo capiatur vel imprisonetur c. nec super eum mittimus nisi per legale judicium parium suorum vel per legem terrae That in this Statute these words in Carcerem are omitted out of the printed Books for it should be nec eum in Carcerem mittimus For these words per legem terrae what Lex terrae should be I will not take upon me to expound otherwise then I finde them to be expounded by Acts of Parliament and this is that they are understood to be the processe of the Law sometimes by writ sometimes by attachment of the person but whether speciale mandatum Domini Regis be intended by that or no I leave it to your Lordships exposition upon two petitions of the Commons and answer of the King in 36 Ed. 3. n o 9. and n o 20. In the first of them the Commons complain that the great Charter the Charter of the Forest and other Statutes were broken and they desire that for the good of himselfe and of his people they might be kept and put in execution and that they might not be infringed by making an arrest by speciall command or otherwise and the answer was that the assent of the Lords established and ordained that the said Charter and other Statutes should be put in execution according to the petition and that is without any disturbance by arrest by speciall command or otherwise for it was granted as it was petitioned In the same year for they were very carefull of this matter and it was necessary it should be so for it was then an usuall thing to take men by writs quibusdam de causis and many of these words caused many Acts of Parliament and it may be some of these writs may be shewn and I say in the same year they complained that men were imprisoned by speciall command and without indictment or other legall course of Law and they desired that thing may not be done upon men by speciall command against the great Charter The King makes answer that he is well pleased therewith that was the first answer and for the future he hath added farther if any man be grieved let him complain and right shall be done unto him This my Lord is an explanation of the great Charter as also the Statute of 37 Ed. 3. ch 18. is a Commentary upon it that men should not be committed upon suggestion made to the King without due proofs of Law against them and so it is enacted twice in one year Wee finde more printed Bookes as in Henry the sixth Mius de fiacts Fitz. 182. which is a strong case under favour in an action of Trespasse for cutting down trees the defendant saith that the place where the trees are cut is parcell of the Manor of B whereof the King is seised in fee and that the King did command him to cut them and the opinion of the Court was that this was no good plea without shewing the specialty of the command and they said if the King command me to arrest a man and I arrest him he shall have an action of false imprisonment against me although it were done in the Kings presence In 1 Ioh. cap. 7. fol. 46. it is in print and there we leave it Hussey Chief Justice saith that Sir Iohn Markham told King Edward the fourth that he could not arrest a man upon suspition of felony or treason as any of his Subjects might because if he should wrong a man by such arrest the parties could have no remedy against him if any man shall stand upon it here is a signification of the Kings pleasure not to have the cause of the commitment examined he hath here another signification of his pleasure by writ whereby the party is brought hither ad subjiciendum recipiendum that he hath made your Lordship Judge of that that should be objected against this Gentleman and either to punish him or to deliver him and if here be no cause shewn it is to be intended that the party is to be delivered and that it is the Kings pleasure it should be so and the writ is a sufficient warrant for the doing of it there being no cause shewn of the imprisonment and now my Lord I will speak a word to the writ of De homine replegiando and no other writ for that was the common writ and the four causes expressed in that Statute to wit the death of a man the command of the King or his Justices or Forest were excepted in that writ before that Statute made as appears Bracton 133. so that the writ was at the Common Law before that Statute And it apppears by our Books that if a man be brought hither by an Habeas corpus though he were imprisoned De morte hominis as in the 21 of Edward the fourth 7. Winckfield was bailed here this Court bailed him for he was brought hither ad subjiciendum recipiendum and not to he in prison God knows how long and if the Statute should be expounded otherwise there were no bailing men outlawed or breakers of prisons for they are not within this Statute and yet this
Lord I say that if it had all been left out and he had onely said Detentus fuit per speciale mandatum domini Regis it had been sufficient but when he doth more it is superfluous and not necessary for it appeared before by whom he was committed and when he returns the Warrant of the Lords of the Councell it is not their words that commit him but they being the Representative Body of the King they doe expresse what the Kings command is but they signifie nothing of their own and therefore I desire your Lordship to deliver your opinion in that point of the Return whether it be positive or no. This cause as it greatly concerns the Subjects so it much concerns the King too I am sorry there should be any occasion to bring these things in question but since it is now here I hope I shall give satisfaction to your Lordship and to the parties too and I desire that I may have Munday for it Hide Chief Justice I think it is not best for us to declare our opinions by peece-meals but upon all the case together and as well as you are a stranger to the Return so are we and there be many presidents and Acts of Parliament not printed which we must see Doderidge This is the greatest cause that ever I know in this Court our Judgements that we give between party and party between the King and the meanest Subject ought to be maturely advised on for so are the entries of our judgements Quod matura deliberatione habita It was judged c. And we must see the presidents and Acts of Parliament that we hear mentioned Justice Jones Master Atturney if it be so that the Law of Magna Charta and other Statutes be now in force and the gentlemen be not delivered by this Court how shall they be delivered apply your self to shew us any other way to deliver them Doderidge Yea or else they shall have a perpetuall imprisonment Per Curiam Munday was appointed for the Atturneys Argument and in the interim the Councell for the gentlemen were by order appointed for to attend the Judges with all the presidents and unprinted Statutes which they mentioned and that they should let the Atturney see them also And the gentlemen being asked if they desired to come again answered they did and a Rule was entred for it On Munday the 27 of Tertio Michaelis 3º Caroli Regis in Banco Regis Sir John Corbet Sir Walter Earle Sir Edmund Hampden and Sir John Henningham Knights were brought to the Barre Heath Atturney Generall MAY it please your Lordship these gentlemen Sir Walter Earle Sir John Corbet Sir Edmund Hampden and Sir John Henningham upon their motion to this Court to have their Habeas Corpus and that themselves and the cause of their detaining them in their severall Prisons might be brought before your Lordship had it granted to them My Lord at the first motion of it the knowledge thereof of comming and that they had such a desire his Majesty was very willing to grant unto them as to all his Subjects this common case of Justice and though it be a case which concerns himself in a high degree yet he hath been so gracious and so just as not to refuse to leave the examination and determination thereof to the Laws of this Kingdome My Lord it is very true that this is a very great Cause and hath raised a great expectation and for the manner of it more then was necessary but my Lord I am afraid these gentlemen whom it concerns have rather advised their Councell then their Councell them but I shall take the case as now I finde it and as the gentlemens Councell on the other side have led me the way to it My Lord the exceptions that have been taken by the Councell on the other side to the Return made by the Warden of the Fleet and the rest of the Guardians of severall Prisons have been two for renewing of your Lordships memory we will read one of the Returns they are all alike Then the Return was read for Sir John Henningham by Master Keeling Heath Atturney May it please your Lordship against this Return the Councell of the Gentlemen have taken some exceptions and have divided their objections into two main points The one the form the other the matter To the form they have objected four severall things First that the Return is not positive but referred to the signification made by another as the Lords of the Councell Secondly that the Keepers of the Prisons have not returned the cause of the commitment but the cause of the cause which is not good Thirdly that the Return is imperfect for that it shews onely the cause of the detaining in Prison and not the cause of the first commitment And lastly that the Return is contradictory in it self for that in the first part thereof there is a certification that the detaining of these gentlemen in prison is Per speciale mandatum domini Regis and when the Warrant of the Lords of the Councell is shewed it appears that the commitment is by the command of the King signified by the Lords of the Councell and by your Lordships favour I will give a severall answer to every of these severall objections And for the first that the Return is not positive and affirmative but depends upon and hath relation to some other and therefore it is not good I doe agree that the ground is true that if the Return be not positive it is not good we differ onely in the Minor That the Return is not positive and affirmative for I agree that these Book cases that have been put are good Law as 27 Ass pl. 65. that if the Sheriffe return that he hath sent to the Bailiffe of the hundred and he gives him that answer that is no good Return for the Sheriffs ought to make the Return as of his own act without naming of the Bailiffe of the Hundred in his Return for if he return Quod mandavi Ballivo itineranti qui habet Retorn omnium Brevium executionem eorund per Cartam domini Regis qui mihi dedit nullum Responsum this is not good if he were not Bailiffe of a Franchise or Signiory for so is 21 H. 7. fol. 4. There hath been cited to maintain these objections 20 Ed. 3. the Record I have perused and there I finde that the Bishop said that it is found in Archivis in the Record c. that he was excommunicated but it was found to be in Archivis c. and that is no positive return that it is so I will oppugne what hath been said by the Councell on the other side it must be granted that if the return here be not positive it is imperfect and in 5 H. 7. 28. it is said that an imperfect return is no return at all it is all one but if the return was so that was not much materiall for then it were
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
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
if you will not have this filed there must go out a new Habeas corpus and thereupon must be another return Sergeant Bramston My Lord we desire some time that we may be advised whether we may proceed or not Lord Chief Justice Hide Will you submit your self to the King Sir Thomas Darnell My Lord I desire some time to advise of my proceedings I have moved many men and offered to retain them of my Councell but they refuse me and I can get none to be of councell with me without your assistance Chief Justice You shall have what Councell assigned you you will have or desire for no offence will be taken against any man that shall advise you in your proceedings in Law Atturney Generall I will passe my word they that do advise you shall have no offence taken against them for it and I shall give my consent to any way that you shall desire either that it may be filed or that it may not be filed for if you desire Justice you shall have it and the King will not deny it but if it shall be conceived as it is rumored that there was a deniall of Justice on the Kings part you must know that his Majesty is very tender of that And for the Gent. now he is brought hither I conceive but yet I leave it to your Lordships judgement that the writ must be filed and you must either deliver him or remand him or else it will be an escape in the Warden of the Fleet. Sir Thomas Darnell I would not have it thought that I should speak any thing against my Prince and for those words I doe deny them for upon my conscience they never came into my thought perhaps you shall find that they have been spoken by some other but not by any of us Chief Justice Hide Sir you have made a fair answer and I doubt not but Mr. Attorney will make the like relation of it you move for the not filing of the Writ if you refuse to have it filed whereby it should not be of Record you must have no Copy of it but if you will have it filed you shall have a Copy of it and further time to speak to it choose whether of them you will Sergeant Bramston We desire to have the return read once more and it was read as before Sergeant Bramston So as the writ may not be filed we will desire no copy of the return Chief Justice Hide Then the Gent. must return back again into the custody of the Warden of the Fleet and therefore I ask you whether you desire to come hither again upon this Writ or will you have a new one Sir Thomas Darnell I desire your Lordship that I may have time to consider of it Chief Justice Hide Then on Gods name take your own time to think of it Michaelis 3º Caroli Regis Thursday 22 November Sir John Corbet Baronet Sir Walter Earle Sir John Henningham Sir Edward Hampden Knights were brought to the Barre Sergeant Bramston MAy it please your Lordship to hear the return read or shall I open it Chief Justice Hide Let it be read Mr. Keeling read the return being the same as that of Sir Thomas Darnell May it please your Lordship I shall humbly move upon this return in the behalf of Sir John Henningham with whom I am of Councell it is his petition that he may be bailed from his imprisonment it was but in vain for me to move that to a Court of Law which by Law cannot be granted and therefore in that regard that upon this return it will be questioned whether as this return is made the Gent. may be bailed or not I shall humbly offer up to your Lordship the case and some reasons out of mine understanding arising out of the return it self to satisfie your Lordship that these Prisoners may and as their case is ought to be bailed by your Lordship The exception that I take to this return is as well to the matter and substance of the return as to the manner and legall form thereof the exceptions that I take to the matter is in severall respects That the return is too generall there is no sufficient cause shewn in speciall or in generall of the commitment of this Gentleman and as it is insufficient for the cause so also in the time of the first imprisonment for howsoever here doth appear a time upon the second warrant from the Lords of the Councell to detain him still in prison yet by the return no time can appear when he was first imprisoned though it be necessary it should be shewn and if that time appear not there is no cause your Lordship should remand him and consequently he is to be delivered Touching the matter of the return which is the cause of his imprisonment it is expressed to be Per speciale mandatum domini Regis This is too generall and uncertain for that it is not manifest what kind of command this was Touching the legall form of the return it is not as it ought to be fully and positively the return of the Keeper himself only but it comes with a significavit or prout that he was committed Per speciale mandatum domini Regis as appeareth by warrant from the Lords of the Councell not of the King himself and that is not good in legall form For the matter and substance of the return it is not good because there ought to be a cause of that imprisonment This writ is the means and the only means that the Subject hath in this and such like case to obtain his liberty there are other writs by which men are delivered from restraint as that de homine replegiando but extends not to this cause for it is particularly excepted in the body of the writ de manucaptione et de cautione admittenda but they lie in other cases but the writ of Habeas corpus is the only means the subject hath to obtain his liberty and the end of this writ is to return the cause of the imprisonment that it may be examined in this Court whether the parties ought to be discharged or not but that cannot be done upon this return for the cause of the imprisonment of this Gentleman at first is so far from appearing particularly by it that there is no cause at all expressed in it This writ requires that the cause of the imprisonment should be returned and if the cause be not specially certified by it yet should it at the last be shewn in generall that it may appear to the Judges of the Court and it must be expressed so farre as that it may appear to be none of those causes for which by the Law of the Kingdome the Subject ought not to be imprisoned and it ought to be expressed that it was by presentment or indictment and not upon petition or suggestion made to the King and Lords which is against the statute made in the 25 Ed. 3. c. 4. 42
uncertain and per speciale mandatum c. be within the meaning of these words according to the law then this Act had done nothing The Act is No Free-man shall be imprisoned but by the law of the land if you will understand these words per legem terrae in the first sense this statute shall extend to Villains as well as to Free-men for if I imprison another man Villain the Villain may have an action of false imprisonment But the Lords and the King for then they both had Villains might imprison them and the Villain could have no remedy but these words in the statute per legem terrae were to the Free-man which ought not to be imprisoned but by due processe of law and unlesse the interpretation shall be this the Free-man shall have no priviledge above the Villain So that I conceive my Lord these words per legem terrae must be here so interpreted as in 42 Eliz. the Bill is worth the observing it reciteth that divers persons without any writ or presentment were cast into prison c. that it might be enacted that it should not be so done hereafter the answer there is that this is an Article of the great Charter this should be granted so that it seems the statute is not taken to be an explanation of that of Magna Charta but the very words of the statute of Magna Charta I will conclude with a little observation upon these words nec super eum mittimus which words of themselves signifie not so much a man cannot finde any fit sense for them But my Lord in the seventh year of King Iohn there was a great Charter by which this statute in the ninth of Henry the third whereby we are now regulated was framed and there the words are nec eum in Carcerem mittimus we will not commit him to prison that is the King himself will not and to justifie this there is a story of that time in Matthew Paris and in that Book this Charter of King Iohn is set down at large which Book is very authentique and there it is entred and in the ninth of Henry the third he saith that the statute was renued in the same words with the Charter of King Iohn and my Lord he might know it better then others for he was the Kings Chronologer in those times and therefore my Lord since there be so many reasons and so many presidents and so many statutes which declare that no Free-man whatsoever ought to be imprisoned but according to the laws of the land and that the liberty of the subject is the highest inheritance that hee hath my humble request is that according to the ancient laws and priviledges of this Realm this Gentleman my Client may be be bailed The Argument of Mr Calthrop at the Kings Bench Bar 22 Novembris Mich. 3. Caroli Regis Sir Iohn Corbet being brought to the Kings Bench Bar with Sir Edmond Hampden Sir Walter Earl and Sir Iohn Henningham who wer also brought thither by severall writs of Habeas corpus with the same return I being assigned by the Court of Kings Bench upon a petition delivered to be of Councell with Sir Iohn Corbet did move that Sir Iohn Corbet might bee discharged of his imprisonment and put in bail for I did conceive that the return of this Habeas corpus was insufficient both in the matter of the return and in the manner of the return and so there ought not to be a longer detaining of Sir Iohn Corbet in prison for as unto the manner of the return it is not laid downe precisely that Sir Iohn Corbet is detained in prison by the speciall commandment of the King signified by the warrant of the Lords of the Councell the which is not a direct affirmation that he is detained by the speciall command of the King but that the Lords of the Councell by their warrant have signified unto him that he was committed and still detained by the speciall command of the King And howsoever the Lords of the Councell had signified that he was detained by the commandment of the King yet it may be he was not detained by the commandment of the King for their signification of the same by warrant may be untrue and the warrant of the Lords of the Councell that is returned in haec verba importeth that the keeper of the Gatehouse rather tooke upon him to return that was signified unto him by the warrant of the Lords of the Councel that Sir Iohn Corbet was committed and detained by the speciall commandment of the King because if the keeper had taken upon him to affirm it upon his return then needed he not to have returned the warrants of the Lords of the Councell and the warrant it self sheweth that hee had onely his information from the Lords of the Councell for their warrant is to let the keeper know that both the first commitment and this direction for the continuing of him in prison were and are by his Majesties speciall commandment and I doe not see as this return is made that an accord upon the case can lie upon the keeper of the Gatehouse if Sir Iohn Corbet was not committed nor detained by the speciall commandment of the King so long as the warrant of the Lords of the Councell bee returned as it was made because hee doth return the same as the Significavit of the Lords by their warrant Register 65. the writ of Excommunication Capiend ' goeth Rex vicecom ' Lincoln ' S. significavit nob ' venerabilis Pater Henricus Lincolniensis Episcopus per Literas suas Patentes quod R. suus Parochial ' propter suam manifestam contumac ' authoritate ipsius Episc ordin ' excom ' est nec se vult per censuram Ecclesiasticam justiciar ' c. tibi praecipimus quod praedict ' R. per corpus suum secundum consuetud ' Angliae justic ' c. and yet no man will say that there is an information of the King that R. is excommunicated but onely that the Bishop of Lincoln had signified unto him that R. was excommunicated and in Fitz. Nat. Br. 663. and Register 65. it appears that the form of the writ of Excommunication deliberand ' is Rex Vicecom ' London Salut ' Cum Thom ' lay allutar ' London qui nuper ad denuntiat venerabil ' Patris Archiep ' Eborum pro contumaciis suis ratione contractus in civitate nostra Eborum habit ' ut dicebat tanquam excom ' claves Ecclesiae contemnent ' per corp ' suum secundum confuetud ' Angliae per te justic ' praecepimus donec c. esset satisfact ' eid ' Archiepiscopâ— â—…d satisfaciendum deo et sanctae ecclesiae sufficientem exposuit cautionem per quod eidem Archiepiscopus offic Archdiac London mutuae vicissitudin ' obtentu scripsit ut ipsum absolvat ab excom ' senten ' memorata sicut idem Archiepiscopus per Literas suas Patentes nob ' significavit
faict si upon an action of trespasse brought for cutting of trees the defendant pleadeth that the place where he cut them is parcell of the Manor of D whereof the King is seised in fee and the King commanded him to cut the trees and the opinion of the Court there is that the plea in bar was ill because he did not shew any speciall commandment of the King and there it is agreed by the whole Court that if the King commandeth one to arrest another and the party commanded did arrest the other an action of trespasse or false imprisonment is maintainable against the party that arrested him although it were done in the presence of the King 39 H. 6. 17. where one justifieth the seisure of the goods of a person that is outlawed by the commandment of the King such a party being no Officer may not in an action brought against him have any aid of the King for such a commandment given to one that is not an Officer will not any ways avail him that is to justifie himself by the return of that commandment 37. Hen. 6. 10. If the King give me a thing and I take the same by his commandment by word of mouth it is not justified by law nothing may passe without matter of Record 10 Hen. 7. 7. 17. 18. it is agreed that Justices may command one to arrest another that is in their view or presence but not one that is out of their view or presence And Keble 10 Hen. 7. 13. said that where one is arrested by a parroll command in their view or presence it is fitting that a record may be made of it insomuch that without such a record there can hardly be a justification in another Term. Secondly there is a commandment of the King by his Commission which according unto Calvins case in the seventh Report it is called by him breve mandatum non remediabile and by virtue of such a commandment the King may neither seise the goods of his subject nor imprison his body as it is resolved in 42 Ass pl. 5. where it is agreed by all the Justices that a Commission to take a mans goods or imprison his body without indictment or suit of the party or other due processe is against the Law Thirdly there is a commandment of the King which is grounded upon a suggestion made to the King or to his Councell and if a man be committed to prison by such a suggestion by commandment of the King it is unlawfull and not warranted by the law of the Realm The 25 of Edward the third cap. 4. de Provisoribus whereas it is contained in the great Charter of the Franchises of England that none shall be imprisoned or arrested of his Free-hold or of his Franchises nor of his free customes but by the law of the land It is awarded consented and established that from henceforth none shall be taken by petition or suggestion made to our Soveraign Lord the King or to his Councell untill it be by indictment or presentment of his good and lawfull neighbours where such deeds are done in due manner or by processe made by writ originall at the Common law nor that none shall be arrested of his Franchises nor of his free-hold unlesse he be duly brought in and answer and forejudged of the same by way of law and if any thing be done against the same it shall be redressed and holden for nought 37 Ed. 3. cap. 10. although it be contained in the great Charter that no man be taken or imprisoned or put out of his freehold without due processe of the law neverthelesse divers persons make false suggestions to the King himself as well for malice as otherwise whereof the King is often grieved and divers of the Realm put in great damages contrary to the form of the same Statute Wherefore it is ordained that all they that make such suggestions be sent with their suggestions to the Chancelour or Treasurer and they and every of them finde sureties to pursue their suggestions and endure the same pain that the other should have had if in case that his suggestion be found untrue and that then processe of the law be made against them without being taken or imprisoned against the form of the same Charter and other statutes So that it appears by these severall statutes that such commandments of the King as are grounded upon suggestion either made to himself or to his Councell for the imprisonment of a man are against the law Fourthly I find that there is a commandment of the King which is made under his hand with his signet for in the fourth and the fifth of Philip and Mary Dier 162. where the statute of â— Ric. 2. cap. 11. restraineth the Warden of the Fleet for letting any man at large that is in upon judgement at the suit of any man except it be by writ or other commandment of the King It was doubted whether the Queen by letter under her hand and privy signet doth give commandment to the Warden of the Fleet to suffer a man that is there in execution to goe about his businesse or the affaires of the Queen whether this be a warrantable command or not within the Statute and the Law hath alwayes been conceived upon that book that such a commandment is not warrantable by Law and if such a command will not serve the turn to give unto a man his liberty which the law favoureth and had the countenance of an Act of Parliament for the doing of it then I conceive it should be a more strong case the King should not have power by his commandment to imprison a man without due processe of the Law and restrain him of his liberty when there had been so many Acts of Parliament made for the liberty of the subjects Fifthly I doe finde that there is the commandment of the King which is by his writ under the Great Seal or the seal of the Court out of which it issueth Regist f. 69. 70. in the writ de cautione admittenda I find the words mandatum Regis expounded to be breve Regis for the writ goeth Rex vic' Salutem Cum nuper ad requisitionem S. de Isle Canonici Lincolne venerabilis Patris H. Lincoln Episcopi ipso in remotis agente Vicarii general per Literas suas Patentes nobis significantis Nicho. B. dict Lincoln Dioc. propter manifestam contumaciam Authoritate ipsius Episcopi Ordinar excommunicat esse nec si velle c. vobis praeceperimus quod praefat c. satisfactum ex parte ipsius N. qui virtute mandati nostri praedict per vos Capt. in Prison nostra de Newgate detent existit c. nos nolentes quod praefat N. per breve nostrum praedict via praecludatur c. prâ—sequi possit in forma Iuris maxim c. integer esse debeat vobis praecipimus quod scire c. quod sit c. quare praedict N.
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
the first was Thomas Brown he was committed to the Marshalseys Per mandatum domini Regis aliis certis de causis and afterwards the Records say Dominus Rex quoad Chase relaxavit mandatum suum and he was bailed and the rest lay by it My Lords I will conclude I could be infinite in this case in presidents but enough is enough your Lordship knoweth the weight of presidents it is not enough to shew this was done but also to shew the reason why it was done I wil trouble your Lordship no longer but if any man shall doubt whether that or any part thereof be truly recited which hath been said touching the Records or Statutes I can say no more but that the statutes have been read and the Records are ready sorted out to be seen by your Lordship I shall conclude that I shall say in this case to answer the fear rather then the just ground of them that say that this may be a cause of great danger with the words of Bracton who spake not to flatter the present age lib. 1. chap. 8. in the end speaking of a writ for wrong done by the King to the Subject touching land he saith these words si judicium à Rege testatur cum breve non currat contra ipsum locus erat supplicationi quod factum suum corrigat emendet quod quidem si non fecerit satis sufficit ei ad poenam quod dominum expectet ultorem nemo quidem de factis suis praesumat disputare multo fortius contra factum suum venire My Lords I englished it not for I apply it not any man may make use of it as he pleaseth and so I conclude both for the point of Exception and matter of the Return which I referre to your Lordships judgement whether all in the Return but these words Per speciale mandatum domini Regis be not superfluous And for the matter whether these Gentlemen be bailable or not bailable I have shewed your Lordship that by the practise of all ages they are not bailable but have beene remaunded back And therefore I pray your Lordship that these Gentlemen may be remitted and left to goe the right way for their delivery which is by Petition to the King whether it be a Petition of right or of grace I know not it must be I am sure to the King from whom I do personally understand that these Gentlemen did never yet present any Petition to him that came to his knowledge Hide Chief Justice Master Atturney thus much we must say to you you have taken a great deal of pains you having had so short a time to consider of this case it is a case of very grear weight and expectation and we doe not intend that you shall expect long for our resolution for that these Gentlemen are in prison and desire no doubt to know where they must trust I hope we shall resolve according to the reason of former times and according to our consciences but this I must tell you as I did those that argued you must bring in your presidents for though wee have seen some of them yet some of them we have not seen therefore we desire that your servants or your selves doe attend and bring unto us after dinner those presidents you have mentioned on the Kings part for we intend to meet this afternoon and you shall have our opinions to morrow and I must tell you on the other side that this cause being of such weight Councell should be wary how they speak any thing to inveagle the Court. Touching such presidents as you urged in some of them we know there is something urged which makes not for you so you have omitted some materiall things to be shewn I speake it to this purpose not to prejudice the cause or to deliver my opinion which becomes me not but to shew that Counsellors should be carefull and this I dare say there is matter in some of the presidents themselves that leads to another case if they were intirely cited The Term grows away you shall not be long in expectation we will meet this afternoon and give you our opinions to morrow morning Master Noye We desire that Master Atturney may bring the presidents of 34 Elizabeth with him Master Atturney I will shew you any thing but my Lord I shal be bold to claim the priviledge of my place as the Kings Councell when the Kings Atturney hath spoken there ought to be no Arguments after that but if you aske to see any thing you shall have it Hide Chief Justice It is that we aim at the truth and right may appear and not satisfie the one or the other part but it is not desired to make use of it by way of reply but for satisfaction onely Serjeant Bramstone My Lord for the presidents I cited I did think they should have been brought and read in the Court that your Lordship might see them Hide Chiefe Iustice You shall need no Apology the Records and Presidents shall be brought to the Court and read openly for the Court will not wrong you and you shall see the difference between them and your relation of them nor you must not wrong us with your written verities On thursday the twenty eight of November Michaelis 3. Caroli Regis Hide Chief Justice Justice Doderidge Justice Jones and Justice Whitlock on the Bench Sir John Corbet Sir Walter Earle Sir John Henningham and Sir Edmund Hampden at the Bar. Hide Chief Iustice I am sure you here expect the resolution of the whole Court as accordingly yesterday we told you you should have This is a case of very great weight and great expectation and it had been fit we should have used more solemn arguments of it then now for the shortnesse of the time we can doe for you have been long in prison and it is fit you should know whereunto you should trust I am sure you expect Justice from hence and God forbid we should sit here but to doe Justice to all men according to our best skill and knowledge for it is our oaths and duties so to doe and I am sure there is nothing else expected of us We are sworn to maintain all the Prerogatives of the King that is one branch of our oath and we are likewise sworn to administer Justice equally to all people We cannot I tell you deliver in solemn arguments and give the judgements of every one of us touching this case as the weight thereof requireth but we have met together and we have duly and seriously considered of it and of all that which hath been spoken of on either side and we are grown to a resolution and my brothers have injoined me to delâ—ver to you the resolution of the whole Court and therefore though it bee delivered by my mouth it is the resolution of us all I hope I shall not mistake any thing of their intention in my delivery but if I doe they sit