being proposed to Master Keeling it was confirmed by him that by the Entrie it appeared by their course that the remaunding of him was the selfe-same day he was brought which as it was said by the Gent. of the house of Commons might be upon the rising of the Court or upon advisement or the like and this answer was given to this President of the Brewers 12. Iac. Saltonstalls case cite devant fo 49. 65 Obiections hors de ceo To the last of these eight which Master Attorney objected is Saltonstalls Case 12. Jac. he was committed per mandatum à Dom. de privato Consilio and being returned by the Warden of the Fleet to be so Remittitur prisonae pred and in 13. Iac. in the same Case there is remittitur generally in the Roll and these two make but one Case and are one President Rns al dits obiections To this the Gent. of the house of Commons answered that it is true the Rolles have such entries of remittitur in them generally But that proves nothing upon the reason before used by them in Caesars Case But also Saltonstall was committed for another cause besides per mandatum Dom. Regis for a contempt against an Order in the Chancery and that was in the returne also And besides the Court as it appeares in the Record gave severall dayes to the Warden of the Fleet to amend his returne which they would not have done if they had conceived it sufficient for that which is sufficient needs not amendment To this Master Attorney replied that they gave him day to amend his returne in respect of that part of it which concerns the Order in Chancery and not in respect of that which was per mandatum Dom. Regis But the Gent. of the House of Commons answered that that appeared not any where nor indeed is it likely at all nor can be reasonably so understood because if the other returne per mandatum Dom. Regis had beene sufficient by it selfe then doubtlesse they would have remanded him upon that alone for then they needed not at all to have stood upon the other part of the returne in this Case So that out of the Record it selfe it appeares fully that the Court conceived the returne to be insufficient So the Gent. of the house of Commons concluded that they had a great number of Presidents besides divers Acts of Parliament and reasons of Common law agreeable to their resolution and that there was not one President at all that made against them but indeed that almost all that were brought as well against them as for them if rightly understood made fully for the maintenance of their conclusion and that there was not one Example or President of a Remittitur in any kind upon the point before that of Caesars Case which is before cleered with the rest and is but of late time and of no moment against the resolution of the House of Commons And thus for so much as concerned the presidents of Record the first day of the Conference desired by the Lords ended The next day they desired another Conference with the House of Commons at which it pleased the Committee of both Houses to heare Master Attorney againe make what Objections he could against other parts of the Argument formerly delivered from the House of Commons he objected against the Acts of Parliament and against the reasons of the Law and his objections to those parts were answered as it appeares by the Answers by order given into the House of Commons by the Gent. that made them He objected also upon the second day against the second kind of Presidents which are resolutions of Judges in former times and not of Record and brought also some other testimonies of the opinions of Judges in former times touching this point Resolution de touts les Iudges 34. El. Objections hors de ceo per l' Attorney First for that Resolution of all the Judges of England in 34. El. mentioned and read in the Arguments read at the first Conference he said That it was directly against the resolution of the House of Commons and observed the words of it in one place to be that persons so committed by the King or by the Counsell may not be delivered by any of the Courts c. And in another that if the cause were expressed either in generall or in specialtie it was sufficient and he said that the expressing of a Cause in generaltie was to shew the King and the Counsels cōmand and to this purpose he read the whole words of that resolution of the Judges Then he objected also that in a report of one Roswels Case in the Kings Bench in 13 Jac. he found that the opinion of the Judges of that Court Sir Edward Cooke being then chiefe Justice and one of them was that a prisoner being committed per mandatum Dom. Regis or privati Consilii without cause shewed and so returned could not be bayled because it might be matter of State or Arc anum nuperii for which he stood committed And this also he added an opinion he found in a Journall in the House of Commons of 18. Iac. wherein Sir Edward Cooke speaking to a bill preferred for the explanation of Magna Charta touching imprisonment said in the same House that one so committed could not be inlarged by the Law because it might be matter of State for which he was committed and amongst these objections as his objections of the other nature also he spake of the confidence that was shewed in the behalfe of the House of Commons and he said it was not confidence on either part could adde any thing to the determination of the question but if he would that he had as much reason of Confidence for the other side against the resolution of the House of Commons grounding himselfe upon the force of his objections which as he conceived had so weakned the Arguments of the House of Commons Rns al dits objections To this a reply was made and first it was said to the Lords on the behalfe of the House of Commons that notwithstanding any thing yet objected they were upon cleare reason still confident of the truth of their first resolution grounded upon so just examination and deliberation taken by them And it was observed to the Lords also that their confidence herein was of another nature and of greater waight then any confidence that could be expressed by M. Attorney or whomsoever else being of his Majesties Counsell learned To which purpose the Lords were desired to take into their present memories the difference between the present qualities of the Gent. that spake in the behalf of the House of Commons of the Kings learned Counsel in their speaking there howsoever accidently they were both men of the same profession For the Kings Counsell spake as Counsell perpetually retained by Fee and if they made glosses or advantagious interpretations whatsoever for their own part they did but what
Quod Commissus fuit per mandatum Concilii Dominae Reginae qui committitur Marr. immediate traditur in Ballium Vn objection Rnde To this the like answer hath beene made as to that other Case of Overtons next before cited they say that in another roll of another terme of the same yeare it appeares he was in question for suspition of Coyning and it is true he was so But the returne and his Commitment mentioned in it have no reference to any such offence nor hath the Baylement of him relation to any thing but to the absolute commitment by the privie Counsell So that the answer to the like objection made against Overtons Case satisfies this also 9 El. Lawrences Case The sixth of these is of Queene Elizabeths time Mich. 9. El. Rot. 35 the case of Tho. Lawrence this Lawrence came in by Habeas Corpus returned by the Sheriffs of London to be detained in prison per mandat Consilij Dominae Regina qui Committitue Marr. super hoc traditur in Ballium Objection Rend An objection hath beene invented against this also it hath beene said that this man was pardoned and indeed it appeares so in the Margin of the roll where the word pardonatur is entred but clearely his in largement by Bayle was upon the body of the returne onely unto which that note of pardon in the Margin of the roll hath no relation at all and can any man think that a man pardoned for what offence soever it be might not as well be committed for some Arcanum or matter of State as one that is not pardoned or out of his innocencie wants no pardon 9 El. Constables Case The seaventh of these is in the same yeare and of Easter Terme following it is P. 9. El. Rot. 68 Ro. Constables Case he was brought by Habeas Corpus out of the Tower and in the returne it appeared he was committed there per mandatum privati Consiliidictae Dominae Reginae qui Comittitur Marr. posteae isto eodem ter traditur in Ball. The like objection hath beene made to this as that before of Lawrence but the selfe same answer clearely satisfies for them both 20 El. Brownings Case The 8. is of the same Queenes time in Pas 20 El Rot. 72. Iohn Brownings Case This Browning came by Habeas Corpus out of the Tower whether he had beene committed and was returned to have been committed per privat Consil Dominae Reginae qui comittitur Marr. postea isto codem termino traditur in Ball. Objection Rnde To this it hath beene said that it was done at the chiefe Justice Wrayes Chamber and not in the Court and thus the authority of the President hath beene lesned or sleighted If it had beene done at his Chamber it would have proved at least this much that Sir Christopher Wray then chiefe Justice of the Kings Bench being a grave learned and upright Judge knowing the Law to be so did Bayle this Browning and enlarge him and even so farre the President were of value enough but it is plaine that though the habeas corpus were returnable as indeed it appeares in the Record it self at his Chamber in Serjeants Inn yet he only committed him to the Kings Bench presently and referred the consideration of inlarging him to the Court who afterward did it For the Record sayes Et postea isto eodem termino traditur in Ball. which cannot be of an inlargement at the chiefe Justice Chamber 40 El. Hare-Courts Case The ninth of this first kind is Hill 40. El. Rot. 62. Edward Hare Courts Case hee was imprisoned in the Gatehouse and that per Domines de private Consilio Dominae Reginae pro certis causis eos moventibus ei ignotis And upon his habeas corpus was returned to be therefore onely detained Qui Comittitur Marr. postea isto eodem termino traditur in Ball. To this never any colour of answer hath beene yet offered 43 El. Catesbies Case The tenth is Catesbies Case in the vacation after Hill Term 43. El. Rot. Robert Catesbie was cōmitted to the Fleet per war rantum diversor pro nobilium viroy de privato Consilio Domine Regina He was brought before Iustice Fenner one of the then Iustices of the Kings Bench by Habeas Corpus at Winchester house Southwark Et homiss fuit Marr. per prefat Edwardum Fenner statim traditur in Ball. 12 Iac. Beckwiths Case The eleventh is Rich Beckwiths Case which was in Hill 12 of K. Iames Rot. 153. He was returned upon his Habeas corpus to have beene committed to the Gatehouse by divers Lords of the privie Counsel Qui committitur Marr. postea esto eodem termino traditur in Ball. Objection Rnde To this it hath bin said by some that Beckwith was bayled upon a letter written by the Lords of the Counsell to that purpose to the Iudges but it appeares not that there was ever any letter written to them to that purpose which though it had beene would have proved nothing against the authority of the Record for it was never heard of that Iudges were to be directed in point of law by letters from the Lords of the Counsell although it cannot bee doubted but that by such letters sometimes they have been moved to bayle men that would or did not ask their inlargement without such letters as in some examples I shall shew your Lordships among the presidents of the second kind 14 Iac. Sir Tho. Mounsons Case The 12 and last of these is that of Sir Tho. Mounsons Case it is Mich. 14. Jac. Rot. 147. Hee was committed to the Tower per warrantum a diversis Dominis de privato Consilio Domini Regis locum tenenti directum And he was returned by the Lievtenant to be therefore detained in prison qui committitur Marr. super hoc traditur in Ball. Objection Rnde To this it hath beene answered that every body knowes by common fame that this Gentleman was committed for suspition of the death of Sir Tho. Overbury and that hee was therefore bayleable a most strange interpretation as if the body of the return and the warrant of the privie Counsel should be understood and adjudged out of fame onely was there not as much a fame why the Gentlemen that were remanded in the last judgement were committed and might not the selfe same reason have served to enlarge them their offence if any were being I think much lesse then that for which this Gentleman was suspected And thus I have faithfully opened the number of 12 Presidents most expresse in the very point in question and cleared the objections that have beene made against them And of such presidents of Record as are of the first kinde which prove plainly the practise of former ages and judgement of the Court of Kings Bench in the very point on the behalfe the Subject my Lords hitherto I am come next to
by Replevin such as were not repleviable and have kept in prison such as were repleviable because they would gaine of the one party and grieve the other And forasmuch as before this time it was not certainly determined what persons were repleviable and what not but only those that were taken for the death of a man or by the commandment of the King or of his Iustices or for the Forrest It is provided and by the King commanded that such prisoners as were before outlawed and they which have abjured the Realme provers and such as be taken with the manner and those which have broken the Kings prison Theeves openly defamed and knowne and such as be appealed by approvers so long as the approvers are living if they be not of good name and such as be taken for burning of houses feloniously done or for false money or for counterfeiting the Kings Seale or persons Excommunicate taken at the request of the Bishop or for manifest offences or for treason touching the King himselfe shall be in no wise repleviable by the common Writ or without Writ But such as be indicted of Larceny by inquests taken before Sheriffs or Bayliffs by their office or of light suspition or of petit Larceny that amounteth not above the value of twelve pence if they were not guiltie of some other Larceny afore-time or guilty of receipt of Felons or of commandment or of force or of ayde of felony done or guilty to some other trespasse for which one ought not to lose either life or member and a man appealed by an approver after the death of the approver if he be no common theefe or defamed shall from henceforth be lett out by sufficient suretie whereof the Sheriff will be answerable and that without giving ought of their goods and if the Sheriffe or any other let any goe at large by surety that are not repleviable if hee be Sheriffe or Constable or any other Bailiffe or such as hath a Fee which hath keeping of prisons and thereof be Attainted he shall lose his Office and Fee for ever And if the under Sherife Constable or Bailiffe or such as hath Fee for keeping of Prisons doe it contrary to the will of his Lord or any other Bailiffe being not of Fee they shall have three yeares imprisonment and make a Fine at the Kings pleasure And if any man with-hold Prisoners repleviseable after that they have offered sufficient Suretie he shall pay a grievous amercement to the King and if he take any reward for the deliverance of such he shall pay double to the Prisoner and also shall be in the great mercy of the King The Answer It must be acknowledged that a man taken by the commandement of the King is not repleviseable for so are the expresse words of this Statute but this maketh nothing against the Declaration of the Commons For they say not the Sherife may replevy such a one by sureties silicet manucaptores but he is bayleable by the Kings Courts of Justice for the better apprehending whereof it is to be knowne that there is a difference betweene repleviseable Diversitie enter Bayleable repleviseable which is alwayes by the Sherife upon pledges or Sureties given and baileable which is by a Court of Record where the Prisoner is delivered to bayle and they are his Gaolers and may imprison him and shall suffer for him body for body as appeareth 33. 36. Ed 3. titulo mainprise 12. 13. where the difference betwixt Bayle and Mainprise is expresly take and if the words of the Statute themselves be observed it will appeare plainly that it extends to the Sherife and other inferiour Officers and doth not bind the hands of the Judges The preamble which is the key that openeth the Entrance into the meaning of the makers of the Law is Forasmuch as Sherifes and others have taken and kept in prison persons detected of felonie Out of these words I observe that it nominateth Sherifes and then if the Judges should be included they must be comprehended under that generall word other which doth not extend to those of an higher ranke but to inferiours for the best by all courses is first to be named And therefore if a man bring a Writ of Customes and services and name rents and other things the generall shall not include homage which is a personall service and of an higher nature but it shall extend to ordinary annuall service 31. E. 1. Droit 67. So the Statute of 13. El. cap. 10. which beginneth with Colledges Deanes and Chapters Parsons Vicars and concludes with these words and others having spirituall promotions shall not comprehend Bishops that are of an higher degree as appeareth in the Archbishop of Canterburies Case 2. Reports fol. 46. B. And thus much is explained in the very Statute towards the end when it doth enumerate those were meant by the word other namely under Sherifes Constables Bailiffs c. Againe the words are Sherifes and others which have taken and kept in prison Now every man knoweth Judges doe neither arrest nor keep men in prison that is the office of Sherifes and other inferiour Ministers Therefore this Statute meant such only and not Judges The words are further that they let out by replevin such as are not repleviable that is the proper language for a Sherife Nay more expresse afterward in the body of the Statute that such as are there mentioned shall be in no wise repleviseable by the common Writ which is de Homine replegiando and is directed to the Sherife nor without Writ which is by the Sherife Ex officio But that which receives no answer is this that the command of the Justices who derive their authoritie from the Crowne is the equalled and to this purpose with the command of the King And therefore by all reasonable construction it must needs relate to Officers that are subordinate to both as Sherifes under-Sherifes Bailiffes Constables and the like And it were a harsh exposition to say that the Justices might not discharge their owne command and yet that reason would conclude as much And that this was meant of the Sherife and other ministers of Justice by the recitall 27. Ed. 1. cap. 3. and likewise by Fleta a manuscript so called because the Author lay in the Fleet when he made the booke for he lib. 2. cap. 52. in his Chapter of turnes and the viewes of the hundred Court in the Countrey setteth downe the Articles of the Charges that are there to be inquired of amongst which one of them is De Replegibilibus injuste detentis irreplegiabilibus dimissis which cannot be meant of not bayling by the Justices for what hath the inferiour Courts in the Countrey to doe with the acts of the Justices and to make that more plaine he setteth downe in that chapter that concerneth Sherifes only the very Statute of Westminster 1. which he translates verbatim out of the French into the Latine save that
replied by the Cōmons that all danger and inconvenience may be avoided by declaring a generall Cause as for Treason suspition of Treason misprision of Treason or felonie without specifying the particular which can give no greater light to a confederate then will bee conjectured by the very apprehension upon the imprisonment if nothing at all were expressed 5. Object It was further alledged that there was a kind of contradiction in the position of the House of Commons when they say a party committed without a cause shewed ought to be delivered or bayled Bayling being a kind of imprisonment deliverie a totall freeing Le Rns To this it hath beene answered that it hath alwayes beene the discretion of the Judges to give so much respect to a commitment by the Command of the King or the Privie Councell which are ever intended to be don in just and weighty causes that they will not presently let them free but bayle them to answer what shall be objected against them on his Majesties behalfe but if any other inferiour Officer doe commit a man without shewing cause they doe instantly deliver him as having no cause to expect their leasure So the delivery is applied to an imprisonment by the command of some meane minister of Justice Bayling when it is done by the command of the King or his Counsell 6. Object It was urged by Mr. Attorney that Bayling is a grace and favour of a Court of Justice and that they may refuse to doe it Le Rns This was agreed to be true in divers cases as where the cause appears to be for felony or other crimes expressed for that there is another way to discharge them in convenient time by their triall and yet in these cases the constant practise hath beene anciently and modernly to bayle men but where no cause of the imprisonment is returned but the Command of the King there is no way to deliver such persons by triall or otherwise but that of the Habeas Corpus And if they should be then remanded they might be perpetually imprisoned without any remedy at all and consequently a man that had committed no offence might be in worse case then a great offender for the later should have an ordinary tryall to discharge him the other should never be delivered 7. Objection It was further said that though the Statute of Westminster 1. cap. 15. be a Statute which by way of provision did extend only to the Sherife yet the recitall of that touching the foure causes wherein a man was not repleviseable at the common law namely those that were committed for the death of a man by the command of the King or of his Justices or for the Forrest did declare that the Justices could not bayle such a one and that repleviseable and bayleable were Synomina all one and that Stanford a Judge of great authoritie doth expound it accordingly Stan. pl. Cor. 72. and that neither the Statute nor he say repleviseable by the Sherife but generally without restraint And that if the chiefe Justice committed a man hee is not to be inlarged by any other Court as appeareth in the Register Le Rns To this it was answered That the recitall of the body of the Statute relateth only to the Sherife only as appeareth by the very words 2. That Repleviseable is to the Sherife for that the word imports no more but a man committed by the chiefe Justice is bayleable by the Court of Kings Bench. 3. That Stanford meaneth all of the Sherife or at least hee hath not sufficiently expressed that he intended the Justices 4. It was denied that Repleviseable and bayleable was the same for they differ in respect of the place where they are used bayle being in the Kings Court of record Repleviseable before the Sherife and they are of severall natures repleviable being a letting at large upon suretie bayling being when one traditur in Balliv the bayle are his Iaylors and may imprison him and shall suffer body for body which is not of replevying by Sureties and differeth from Mainprise in this Diversitie enter bayle mainprise Mainprise is an undertaking in a some certaine Bayling to answer the condemnation in Civill causes and for criminall body for body And the reasons and authorities in the first Conference were then renewed and no exceptions taken to any save that in 22. H. 6. it doth not appeare that the command of the King was by his mouth which must be intended or by his Counsell which is all one as is observed by Stanford for the words are that a man is not repleviseable by the Sherife who is committed by the Writ or the commandment of the King 21. Ed. 1. Rot. 2. Dors was Cyted by the Kings Counsell that it was answered that it concerned the Sherife of Leicester shire only and not the power of the Iudges 33. H. 6. the Kings Attorney confessed was nothing to the purpose and yet that Booke hath beene usually cited by those that maintaine the contrary to the Declaration of the Commons And therefore such sudden opinions as have been given thereupon are not to be regarded the foundation failing And where it was said that the French of 36. Ed. 3. Rot. parliamenti numero 9. which can receive no answer did not warrant what was inferred thence but that these words Sauns disturbance mettre ou arrest fair le contre per special mandement ou autre mannere must bee understood that the Statute should be put in execution without putting disturbance or making arrest to the contrary by speciall command or in other manner The Commons did utterly denie the interpretation given by the Kings Counsell and to justifie their owne did appeale to all men that understood the French and upon the 7. Statutes did conclude that their Declaration remained an undoubted truth not controlled by any thing said to the contrary Sir Edward Littletons Presidents The true Copies of the Records not printed which were used on either side of that part of the Debate Inter Record Domini Regis Caroli in Thesaurario Recept Scacarij sui sub custodia Thesaurar Camerar ibidem remanent viz. pl. Coram ipso Domino Rege consilio suo ad Parliamentum suum post Pasch apud London in Maner ' Arch-Episcopi Ebor ' Anno Regni Domini Regis Ed. 3. 21. inter alia sic continetur ut sequitur Rot. 2. indorso STephanus Rabaz Vicecomes Leic. Warw. coram ipso Domino Rege ejus Concilio arenatus ad Rudom positus de hac quod cum I. B. E. H. W. H. nuper balliv ' ipsius Vicecomitis per Dom. Regem fuissent assign ' ad Gaolas Domini Regis deliberand eidem vic' quendam W. P. per quendam appellatorem ante adventum eorum Justiciariorum ibidem appellat capt vivente ipso appellatore usque diem deliberationis coram eis fact demissat per pleviam contra formam Statuti
Iohannis de Sprink Iohannis Ermond de Dunberke unde rectatus est habet literas Regis Vic' Kanc ' quod ponatur per Ball ' usque ad primam Assiss Si ea occasione c. Teste rege apud Cestre 29. Iunij Pro morte hominis Radūs Corynn capt detentus in Gaole Regis de Lincolne pro morte Willielmi Filij Symonis Porter unde rectat est habet literas Regis Vic' Lincolne quod ponatur per Ball ' usque ad primum Assiss Si ea occasione c. Teste rege apud Sheene 3. die Iunij Membrana 7. Pro morte hominis Iohannes de Githerd Capt ' detent in prisona Regis Ebor ' pro morte Mathei Sampson de Ebor ' unde rectatus est habet literas Regis Vic' Ebor ' quod ponatur per Ball ' usque ad prim ' Assiss Dat. apud Langele 50. die Aprilis Claus 3. Ed. 2. Membr 3. Pro morte hominis Adam de Pepper captus detent in Gaole Regis Ebor ' pro morte Henrici de Syner ' de Eastrick unde rectatus est habet literas Regis Vic' Ebor ' quod ponat ' per Ball ' usque ad primum Assiss Teste rege apud Westminst 7. die Febr. Numero 14. Pro morte 2. femes Margareta uxor Willielmi Colbot capta detenta in Gaol Regis Norwici pro morte Agnetis filiae Willielmi Colbot Matildae sororis ejusdem Agnetis unde rectata est habet literas Regis Vic' Norff. quod ponatur per Ball ' Teste rege apud Sheene 22. Ianuar. Numero 16. Pro morte hominis Iohannes Frere Captus detent in Gaole Regis Oxon. pro morte Adae de Egeleigh unde rectata est habet literas Regis Vic' Devon quod ponatur per Ball ' Teste rege apud Westminst 8. Decembr Claus Anno 4. Ed. 2. Membr 7. Pro morte hom Robertus Shrene Capt. detent in Gaole Regis de Colchester pro morte Roberti le Maigme unde rectat est habet literas Regis Vic' Essex quod ponatur per Ball ' usque ad prim ' Assiss Dat. 22. die Maij. Numero 8. Pro morte hom W. Filius Robertile Fishere de Shirborne capt detent in Gaole Regis Ebor ' pro morte Roberti le Monus de Norton unde rectatus est habet literas Regis Vic. Ebor. quod ponatur per Ball. usque ad primam Assiss Dat. 25. April Claus Anno 4. Ed. 2. Numero 22. Pro morte hom Thomas Ellis de Stanford capt detent in prisona Regis Lincolne pro morte Michaelis filii Willielmi de Fodering unde rectat est habet literas Regis Vic. Lincolne quod ponatur per Ball ' usque ad prim Assiss Teste Rege apud novum monasterium 8. die Septembr Mr. Seldens Argument The Argument which by the Command of the House of Commons was made at their first conference with the Lords touching the personall libertie of the person of every Free-man out of Presidents of Record and resolutions of Judges in former times MY LORDS YOur Lordships have heard from the Gentleman that last spake a great part of the grounds upon which the House of Commons upon mature deliberation proceeded to that cleere resolution touching the right of the libertie of their persons The many Acts of Parliament which are the written lawes of the Land and are expresly in the point have beene read and opened and such Objections as have beene by some made to them and some Objections also made out of another Act of Parliament have beene cleered and answered It may seeme now perhaps my Lords that little remaines needfull to bee further added for the inforcement and maintenance of so fundamentall and established a right and libertie belonging to every Free-man of the Kingdome But in the examination of questions of Law of right besides the Lawes or Acts of Parliament that ought chiefly to direct and regulate every mans judgement whatsoever hath beene put in practise to the contrary there are commonly used also former Judgements or Presidents and indeed have beene so used sometimes that the weight of reason of law and of Acts of Parliament hath been laid by and resolutions have beene made and that in this very point only upon the interpretation and apprehension of Presidents Presidents my Lords are good media or proofes of illustration or confirmation where they agree with the expresse Law but they can never bee proofe enough to overthrow any one law much lesse seven severall Acts of Parliament as the number of them is for the point The house of Commons therefore taking into consideration that in this question being of so high a nature that never any exceeding it in any Court of Justice whatsoever all the severall wayes of just examination of the truth should be used have also most carefully informed themselves of all former judgements or presidents concerning this great point either way and have beene no lesse carefull of the due preservation of his Majesties just prerogative then of their owne rights The Presidents here are of two kinds either meerely matter of record or else the former resolutions of the Judges after solemne debate in the point This point that concernes presidents the House of Commons have commanded me to present to your Lordships which I shall as briefly as I may so I doe it faithfully and perspicuously To that end my Lords before I come to the particulars of any of those Presidents I shall first remember to your Lordships that which will seeme as a generall key for the opening and true apprehension of all them of Record without which key no man unlesse he be verst in the entries and course of the Kings Bench can possibly understand them In all cases my Lords where any right or libertie belongs to the Subjects by any positive law written or unwritten if there were not also a remedie by Law for the enjoying or regaining this right or libertie when it is violated or taken from him the positive law were most vaine and to no purpose and it were to no purpose for any man to have any right in any land or other inheritance if there were not a knowne remedie that is an action or writ by which in some Court of ordinary Justice he might recover it And in this case of right of libertie of person if there were not a remedie in the Law for regaining it when it is restrained it were of no purpose to speak of lawes that ordain it should not be restrained Therefore in this case also I shall first shew you the remedie that every Free-man is to use for the regaining of his libertie when he is against law imprisoned that so upon the legall course and forme to be held in using that remedie the Presidents or Judgements upon it for all Judgements of Record rise out of this remedie may bee easily understood There are in
the prisoner was not committed by the immediate command of the King but by the command of the Lord Chamberlaine and thence as it was said they made this rule but this kind of interpretation is the first that ever was supposed that Judges should take notice of the truth or falshood of the return otherwise then the body of the returne could informe them And the rule it selfe speakes plainly of them sufficiencie onely and not of the truth or falshood of it Emersons Case The seventh of these is the case of Iames Desmaistres Edward Emerson and some others that were brewers and were committed to the Marshalsea of the Houshold per mandat Dom. Regis and so returned upon habeas corpus and it is true that the roll shewes that they were remanded but the remanding was onely upon advisement and indeed the grave and upright Judges of the time were so carefull least upon the entry of the remanding any such mistake might be as might perhaps mislead posterity in so great a point that they would expresly have this word immediate added to the Remittitur that so all men that should meet with the roll might see that it was done for the present onely and not upon any debate of the question And besides that there is no quousque to it which is usually added when the highest award upon debate or resolution of this kind is given by them 12. Iam Sir Samuel Saltonstalls Case The eighth of these is the Case of Saltonstall it is Hill 12. Iac. Sir Samuel Saltonstall was committed to the Fleet per mandatum Dom. Regis and besides by the Court of Chauncery for disobeying an order of that Court and is returned upon his habeas corpus to be therefore detained And it is true that a Remittitur is entred in the roll but it is onely a remittitur prisoner prodict ' without quousque secundum legem de liberatus fuerit and in truth it appeares on the Record that the Court gave the Warden of the Fleet three severall dayes at severall times to amend his returne and in the interim remittitur persone pred' Certainly if the Court had thought that the returne had beene good they would not have given so many severall dayes to have amended it for if that Mandatum Dom. Regis had beene sufficient in the Case why need it to have been amended 13. Iac. Sir Samuel Saltonstalls Case The ninth and last of these is Tr. 13. Iac. Rot. 71. The Case of the same Sir Samuel Saltonstall he is returned by the Warden of the Fleet and in the Case before and generally remittitur is in the roll which proves nothing at all that therefore the Court thought he might not by law be inlarged and besides in both cases hee stood committed also for disobeying an order in the Chauncery These are all that have beene pretended to the contrary in this great point and upon the view of them thus opened to our Lordships it is plaine that there is not one not so much as one at all that proveth any such thing as that persons committed by the command of the King or the Lords of the Counsell without cause shewed might not be enlarged but indeed the most of them expresly prove rather the contrary Now my Lords having thus gone through the Presidents of Record that concerne the point of either side before I come to the other kind of Presidents which are the solemne resolutions of Judges in former times I shall as I am commanded also by the House of Commons represent unto your Lordships somewhat else they have thought very considerable with which they met whilst they were in a most carefull enquiry of whatsoever concerned them in this great question It is my Lords a draught of an entry of a judgement in that great case lately adjudged in the Court of Kings Bench when divers Gentlemen imprisoned per speciale mandatū Dom. Regis were by the award and order of the Court after solemne debate sent back to prison because it was expresly said they could not in Justice deliver them though they prayed to be bayled The case is famous and well knowne to your Lordships therfore I need not further to mention it as yet indeed there is no judgement entred upon the Roll but there is room enough for any kind of judgement to be entred But my Lords there is a forme of a judgement a most unusuall one such a one as never was in any such case before for indeed there was never before any Case so adjudged and thus drawne upon by a chiefe Clerk of that Court by direction of M. Attorney generall as the House was informed by the Clerk in which the reason of the judgement and remanding of those Gent. is expressed in such sort as if it should be declared upon Record for ever that the Lawes were that no man could ever be inlarged from imprisonment that stood committed by such an absolute command The draught is onely in Sir John Heninghams Case being one of the Gent. that was remanded and it was made for a form for all the rest The words of it are after the usuall entry of a Curia advisare vult for a time That visis retur predict nec non diversis antiquis recordis in Curia hic remaveum consimiles casus continentibus maturaque deliberatione inde prius habita eo quod milla specialis causa captionis sive detentionis pred Iohanis ex primitur sed generalitur quod detentus est in prisona pred' per speciale mandatum Dom. Regis ideo pred' Iohanes remittitur prefat custodi Marr. Hospitii pred' Salvo custodiend quousque c. that is quousque legem deliberatus fuerit And if that Court that is the highest for ordinary Justice cannot deliver him secundem legem What law is there I beseech you my Lords that can be sought for in any other inferiour Court to deliver him Now my Lords because this draught if it were entred in the Roll as it was prepared for no other purpose would be as great a declaration contrary to the many Acts of Parliament already cited contrary to all Presidents of former times and to all reason of Law to the utter subversion of the highest liberty and right belonging to every free man of this Kingdome and for that especially also it supposes that divers ancient Records had been looked into by the Court in like cases by which Records their judgements were directed whereas in truth there is not any one Record at all extant that with any colour not so much indeed as with any colour warrants the judgement therefore the House of Commons thought fit also that I should with the rest that hath beene said shew this draught also to your Lordships I come now to the other kind of Presidents that is solemne resolutions of Iudges which being not of Record remaine onely in authentique copies but of this kinde there is but one in this case that is
no cause of such commitment deteyner or restraint being expressed for which by Law he ought to be committed deteyned or restrained and the same be returned upon a Habeas Corpus granted for the said party then he ought to be delivered or bayled All these without one negative that these Acts of Parliament and these Judiciall presidents in affirmance thereof recited by my Colleagues are but declarations of the fundamentall lawes of this Kingdome I shall prove by manifest and legall reasons which are the grounds and mothers of all lawes The first generall reason 1. The first generall reason is drawne are ipsa from imprisonment ex visceribus causae be it those or other imprisonments which is divided into three parts 1. First no man can be imprisoned at the will and pleasure of any but he that is bond and a villaine for that imprisonment at will is tailes luy haut base are propria quarto modo to villaines 2. But if Free-men of England might be imprisoned at the wil and pleasure of the King by his commandment then were they in worse case then bond-men villaines for the lord of a villain cannot command another to imprison his villain without cause as of disobedience or refusing to serve as it is agreed in our Bookes 3. Imprisonment is accounted in law a civil death perdit domum familiam vicinos patriam his house is family his wife his children his neighbours his Country and to live among wretched wicked men 39 H. 6. fo 50. 41. Ed. 3. 9. If a man be threatned to be killed he may avoid a feoffment of lands gift of goods c. So it is if he be threatned to be imprisoned he shall doe the like for that is a civill death The second generall reason Bracton 105. fo 15. The second generall reason is a Minore ad majus paena corporalis est majus qualibet pecuniaria but the King himselfe cannot impose a fine upon any man but it must be done juditially by his Judges per Iusticiar ' in Cur ' non per Regem in Camera 2. R. 3. 11. and so it hath beene resolved by all the Judges of England The third generall reason The third generall reason is drawne from the number and diversity of remedies which the law giveth against imprisonment vizt brevia de Homine replegiande de odio Atia de habeas corpus bre de manucaptiene The two former of these are antiquated but the writ de odio Atia is revived for that was given by the Sat. of Magna Car ' cap. 26. and therefore though it were repealed by the Stat. of 28. Ed. 3 ca 9. yet it is revived by the Stat. of 43. Ed. 3. cap. 1. by which it is provided that all Statutes made against Magna Charta are void now the law would never have given so many remedies if the Freemen of England might have beene imprisoned at Free will and pleasure The fourth generall reason The fourth generall reason is drawne from the extent universality of the pretended power to imprison for it should not extend onely to the Commons of the Realme and their posterity but to the Nobility and their Honourable Progenies to the Bishops and Clergie of the Realme and their Successours to all persons of what condition or sex or age so ever to all Judges Officers c. whose attendance are necessary without exception of any person The fifth generall reason The fifth generall reason is drawne from the indefinitenesse of time the pretended power being limited to no time it may be perpetuall during life The sixth generall reason The sixth generall reason is drawne a dedecore from the losse and dishonour of the English nation in two respects 1. For their valour and power so famous through the whole world 2. For their industry for who will endeavour to imploy himselfe in any profession either of Warre liberall Science or Merchandize if he be but tennant at will of his liberty and no tennant at will will support or improve any thing because he hath no certaine estate and thus it should be both dedecus and damnum to the English nation and it should be no honour to the King to be King of a slaves The seventh generall reason The seventh generall reason is drawne ab utili et inutili for that appeareth by the Stat. of 36 Ed. 3. that the execution of the Statute of Magna Charta 5. Ed. 3. 25. Ed. 3. 28. Ed. 3 are adjudged in Parliament to be for the common profit of the King and of his people and therefore the pretended power being against the profit of the King and of his people can be no part of his prerogative The eighth generall reason The eighth generall reason is drawne a tuto for it is safe for the King to expresse the Cause of the Commitment and dangerous for him to omit it for if any be committed without expressing of the Cause though hee escape albeit the truth be it were for treason or felony yet the escape is neither felony nor treason but if the cause be expressed to be for suspition of treason or felony then if he escape albeit he be innocent it is treaon or felony The last generall reason The last generall reason is drawne from authorities 16. H. 6. Means de fait 182. by the whole Court the King in his presence cannot command one to be arrested but an action of false imprisonment lies against him that arresteth 22. H. 7. 4. Newton 1 H. 7. 4. The opinion of Markham chiefe Justice to Ed. 4. And the reason because the party hath no remedy Fortescue cap. 8. Proprio â—re nullus regum usus est c. to commit any man 4. El. Plo. Com. 236. The Common Law hath so admeasured the Kings Prerogative as he cannot prejudice any man in his inheritance and the greatest inheritance a man hath is the liberty of his person for all others are accessary to it Cicere Major haeredidas venit unicuique nostrum a legibus quam a parentibus 25. Ed. 1. cap. 2. All judgements given against Magna Charta are void Vpon conference with the Lords these objections were made by the Kings Attorney The first objection 1 That the resolutions of the House of Commons were incompatible with a Monarch that must governe by rule of State Rns Whereunto it was answered Quod nihil tam propr ' est imperii quam legibus vivere And againe Attribuat Rex legi quod lex attribuat ei vizt dominationem imperium quia sine lege non potest esse Rex It can be no prejudice to the King by reason of matter of State for if it be for suspition of treason misprision of treason or felony it may be by generall words expressed vizt pro suspitione proditionis c. If it be for any contempt or any other thing the particular cause must be shewed The second objection 2 To blinde those that are