A CONFERENCE DESIRED BY THE LORDS AND HAD by a Committee of both Houses CONCERNING THE RIGHTS AND PRIVILEGES of the Subjects Discoursed by Sir DUDLEY DIGGES Sir EDWARD LITTLETON Knight now Lord Keeper Master SELDEN Sir EDWARD COOKE With the Objections by Sir Robert Heath Knight then Attorney Generall and the Answers 3o. Apr. 4. Car. 1628. LONDON Printed by A. N. for Mathew Walbancke and Richard Best and are to be sold at their shops at Graies-Inne Gate 1642. THE INTRODVCTION Sir Dudley Diggs MY LORDS I Shall I hope auspiciously begin this Conference this day with an observation out of the holy Story 2. Chro. Cha. 34. in the dayes of good King Iosiah when the Land was purged of Idolatrie and the great men went about to repaire the house of God while money was sought for there was found a Booke of the Law which had beene neglected 2 Kings Cha. 22. and afterwards being presented to the good King procured the blessing which your Lordships may reade in the Scriptures My good Lords I am confident your Lordships will ascheerefully joyne with the Commons in acknowledgement of Gods great blessing in our good King Iosiah as the Knights Citizens and Burgesses of the House of Commons by mee their unworthiest servant doe thankfully remember your most religiously and truly honourable invitation of them to the late Petition for cleansing this Land from Popish abominations which I may truly call a necessary and a happy repairing of the house of God and to goe on with the parallel whilst we the Commons out of our good affections were seeking for money we found I cannot say a booke of the Law but many and fundamentall points thereof neglected and broken which hath occasioned our desire of this conference wherein I am first commanded to shew unto your Lordships in generall that the Lawes of England are grounded on reason more ancient then bookes consisting much in unwritten customes yet so full of Justice and true equitie that your most Honourable Predecessors and Ancestours propugned them with a nolumus mutari and so ancient that from the Saxon dayes notwithstanding the Injuries and ruines of time they have continued in most parts the same as may appeare in old remaining Monuments of the Lawes of Ethelbert the first Christian King of Kent Jna the King of the West Saxons Offer of the Mertians and of Alfred the great Monarch who united the Saxon Heptarchie whose lawes are yet to bee seene published as some thinke by Parliament as he sayes to that end Vt qui sub uno rege sub una lege regeâ—entur And though the Booke of Litchfield speaking of the times of the Danes sayes that then Ius sopitum erat in regno leges consuetudines sopitae sunt and prava voluntas vis violentia magis regnabant quam judicia vel justitia yet by the blessing of God a good King Edward commonly called St. Edward did awaken those lawes and as the old words are Excitatas reparavit reparatas decoravit decoratas confirmavit Which confirmavit shewes that good King Edward did not give those Lawes which William the Conquerour and all his Successours since that time have sworne unto And here my Lords by many Cases frequent in our moderne Lawes strongly concurring with those of the ancient Saxon Kings I might if time were not more pretious demonstrate that our Lawes and Customes were the same I will only intreat your Lordships leave to tell you that as we have now even in those Saxon times they had their Court Barons and Court Leets and Sheriffs Courts by which as Tacitus sayes of the Germanes their Ancestours Jura reddebant per pagos vicos and I doe beleeve as wee have now they had their Parliaments where new lawes were made cum consensu Praelatorum magnatum totius communitatis or as another writes cum consilio praelatorum nobilium sapientium laicorum I will adde nothing out of Glanvile that wrote in the time of H. 2. or Bracton that writ in the dayes of H. 3. only give me leave to cyte that of Fortescue the learned Chancellour to H. 6. who writing of this Kingdome sayes Regnum istud moribus nationum Regum temporibus eisdem quibus nunc Regitur legibus consuetudinibus regebatur But my good Lords as the Poet said of Fame I may say of our common Law Ingrediturque solo caput inter nubila condit Wherefore the cloudy part being mine I will make hast to open way for your Lordships to heare more certaine Arguments and such as goe on more sure grounds Be pleased then to know that it is an undoubted and fundamentall point of this so antient common law of England that the Subject hath a true property in his goods and poffessions which doth preserve as sacred that Meum tuum that is the nurse of Industry and mother of Courage and without which there can be no Justice of which Meum tuum is the proper object But the undoubted birth-right of Free Subjects hath lately not a little beene invaded and prejudiced by pressures the more grievous because they have beene pursued by imprisonment contrary to the Franchises of this Land and when according to the Lawes and Statutes of this Realme redresse hath beene sought for in a legall way by demanding Habeas Corpus from the Judges and a discharge or triall according to the law of the Land successe hath failed that now inforceth the Commons in this present Parliament assembled to examine by Acts of Parliament presidents and reasons the truth of the English Subjects libertie which I shall leave to learned Gentlemen whose learned Arguments I hope will leave no place in your Lordships memories for the errours and infirmities of your humblest servant that doth thankfully acknowledge the great favour of your Honourable and patient Attention Sir Edward Littletons Argument The Argument made by the Command of the house of Commons out of Acts of Parliament and authorities of Law expounding the same at the first Conference with the Lords concerning the libertie of the person of every Free-man Mr. Littleton MY LORDS VPon the occasions delivered by the Gentleman your Lordships have heard the Commons have taken into their serious consideration the matter of personall libertie and after long debate thereof on divers dayes as well by solemne Arguments as single propositions of doubts and answers to the end no scruple might remaine in any mans brest unsatisfied they have upon a full Search and cleare understanding of all things pertinent to the question unanimously declared That no Free-man ought to bee committed or restrained in prison by the command of the King or Privie Counsell or any other unlesse some cause of the commitment detainer or restraint bee expressed for which by law hee ought to bee committed detained or restrained And they have sent mee with other of their members to represent unto your Lordships the true grounds of their resolution and have charged me
particularly leaving the reasons of law and presidents for others to give your Lordships satisfaction that this libertie is established and confirmed by the whole State the King the Lords spirituall and temporall and Commons by severall Acts of Parliament the authoritie whereof is so great that it can receive no answer save by interpretation or repeale by future Statutes And those that I shall mind your Lordships of are so direct in point that they can beare no other exposition at all and sure I am they are still in force The first of them is the grand Charter of the Liberties of England first granted in the seventeenth yeare of King John and renewed in the ninth yeare of Henry the third and since confirmed in Parliament above 30. times the words there are Chap. 29. Nullus liber homo capiatur vel imprisonetur aut disseisietur de libero tento suo vel liberis consuetudinibus su is aut utlageretur aut exuletur aut aliquo modo destruatur nec super eum ibimus nec super eum mittemus nisi per legale judicium parium suorum vel per legem terrae These words nullus liber homo c. are expresse enough yet it is remarkable that Mathew Paris an Authour of speciall credit doth observe fol. 432. that the Charter of 9. H. 3. was the very same as that of 17. King John in nullo dissimilis are his words and that of King Iohn he setteth downe verbatim Fo. 342. and there the words are directly Nec eum in Carcerem mittemus and such a corruption as is now in the print might easily happen 'twixt 9. H. 3. and 28. of Ed. 1. when this Charter was first exemplified but certainly there is sufficient left in that which is extant to decide this question for the words are that no Free-man shall be taken or imprisoned but by the lawfull judgement of his Peeres which is by a Iurie of Peeres ordinary Iurors for others who are their Peeres or by the law of the Land Which words Law of the Land must of necessity be understood in this notion to be by due Proces of the Law and not the law of the Land generally or otherwise it would comprehend Bond-men whom wee call Villaines who are excluded by the word liber For the generall law of the Land doth allow their Lords to imprison them at their pleasure without cause wherein they only differ from the Free-men in respect of their persons who cannot be imprisoned without a cause And that this is the true understanding of these words per legem terrae will more plainly appeareby divers other Statutes that I shall use which doe expound the Law according And though the words of this grand Charter be spoken in the third person yet they are not to be understood of suites betwixt party and party at least not of them alone but even of the Kings suites against his Subjects as will appeare by the occasion of getting of that Charter which was by reason of the differences betwixt those Kings and their people and therefore properly to bee applied unto their power over them and not to ordinary questions betwixt Subject and Subject Secondly the words per legale judicium parium suorum immediatly preceding the other of per legem terrae are meant of trials at the Kings suit and not at the prosecution of a Subject And therefore if a Peere of the Realme be arraigned at the Suit of the King upon an Indictement of murther he shall be tried by his Peeres but if he be appealed of murther by a Subject his triall shall be by an ordinary Jury of 12. Freeholders as appeareth in 10. Ed. 4. 6. 33. H. 8. Brooke title trials 142. Stan. Cor. li. 3. ca. 1. fol. 152. and in 10. Ed. 4. 6. it is said such is the meaning of Magna Charta for the same reason Sinor indite ferra trie per pares auterment si soit appeale Br. tit Corone 153. nota bien Therefore as per judicium parium suorum extends to the Kings Suit so shall these words per legem terrae And in 8. Ed. 2. rot parliament membrana 7. there is a Petition that a Writ under the privie Seale went to the Guardians of the great Seale to cause lands to bee seized into the Kings hands by force of which there went a Writ out of the Chancery to the Eschetor to seize against the forme of the grand Charter that the King nor his ministers shall out no man of his Freehold-without reasonable judgement and the party was restored to his land which sheweth the Statute did extend to the King There was no invasion upon this personall libertie till the time of King Ed. 3. which was eftsoone resented by the Subject for in 5. Ed. 3. ca. 9. it is ordained in these words Sta. 5. Ed. 3. 9. It is enacted that no man from henceforth shal be attached by any occasion nor fore-judged of life or limbe nor his lands tenements goods nor chattels seized into the Kings hands against the forme of the great Charter and the law of the Land 25. Ed. 3. cap. 4. Sta. 15. Ed. 3. 4. It is more full and doth expound the words of the grand Charter and is thus Whereas it is conteined in the grand Charter of the franchises of England that none shall be imprisoned nor put out of his freehold nor free custome unlesse it be by the law of the Land It is awarded assented and established that from hence none shall bee taken by Petition or Suggestion made to our Lord the King or to his Counsell unlesse it be by Inditement or presentment of his good and lawfull people of the same neighbourhood which such Deeds shall be done in due manner or by Proces made by Writ originall at the Common law nor that none be Out of his Franchises nor of his Freehold unlesse he be duly brought in answer and fore-judged of the same by the course of the law and if any thing be done against the same it shall be redressed and holden for none Out of this Statute I observe Lex terre expound ê‘ proces dée faict ê‘ bre original al coÌ„mon ley that what in Magna Charta and the preamble of the Statute is tearmed by the law of the Land is in the body of this Act expounded to bee by Proces made by Writ originall at the Common law which is a plain interpretation of the words Law of the Land in the grand Charter And I note that the Law was made upon the commitment of divers to the Tower no man yet knoweth for what 28. Ed. 3. cap. 3. Sta. 28. Ed. 3. ca. 3. It is more direct this libertie being followed with fresh Suit by the Subject where the words are not many but very full and significant That no man of what state or condition he be shall be put out of his lands nor tenements nor taken nor imprisoned nor dis-inherited nor put to
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
law divers remedies for inlarging of a Free-man imprisoned as the writts of Odio Atia and of Homine replegiando besides the common or most knowne Writs of Habeas Corpus or Corpus cum causa as it is called also The first two Writs are to be directed to the Sherifs of the County and lie in some particular Cases with which it would be untimely for me to trouble your Lordships because they concerne not that which is committed to my charge But that Writ of Habeas Corpus or Corpus cum causa is the highest remedie in Law for any man that is imprisoned and the only remedie for him that is imprisoned by the speciall command of the King or the Lords of the Privie Counsell without shewing cause of the commitment neither is there in the law any such thing nor was there ever mention of any such thing in the Lawes of this Land as a Petition of right to be used in such cases for libertie of the person nor is there any legall course for inlargement to be taken in such cases howsoever the contrary hath upon no ground or colour of law beene pretended Now my Lords if any man be so imprisoned by any such command or other wise in any prison whatsoever through England and desire by himselfe or any other in his behalfe this Writ of Habeas Corpus for the purpose in the Court of the Kings Bench the Writ is to be granted to him and ought not to be denied him no otherwise then another ordinary originall Writ in the Chancery or other common Proces of law may be denied which amongst other things the House resolved also upon mature deliberation and I was commanded to let your Lord sh know so much This Writ is directed to the Keeper of the Prison in whose custodie the prisoner remaines commanding him that after a certaine day he bring in the body of the prisoner ad Subiiciend recipiend juxta quod curia conceda verit c. una cum causa Captionis detentionis and oftentimes una cum causa detentionis only captionis being omitted The Keeper of the prison therupon returns by what warrant he detaines the prisoner and with his returne filed to his Writ brings the prisoner to the Barre at the time appointed When the returne is thus made the Court judgeth of the sufficiency or insufficiency of it only out of the body of it without having respect to any other thing whatsoever that is they to suppose the returne to be true whatsoever it be if it bee false the prisoner may have his action on the Case against the Gaoler that brought him Now my Lords when the prisoner comes thus to the Barre if he desire to be bayled and that the Court upon the view of the returne thinke him in Law to bee bayleable then he is alwayes first taken from the keeper of the Prison that brings him and committed to the Marshall of the Kings Bench and afterwards bayled and the entry perpetually is Committitur Mariscallo postea traditur in Ball ' for the Court never bayles any man untill he first become their owne prisoner and be in Custodia Marriscall ' of that Court But if upon the return of the Habeas Corpus it appeare to the Court that the prisoner ought not to be bayled nor discharged from the prison whence he is brought then he is remanded or sent back againe there to continue untill by course of law he may be delivered and the entrie in this Case is Remittitur quousque secundum legem deliberatus fuerit or Remittitur quousque c. which is all one and the highest award or judgement that ever was or can be given upon a Habeas Corpus But if the Judges doubt only whether in Law they ought to take him from the prison whence he came or give a day to the Sherife to amend his Writ as often they doe then they remaund him only during the time of their doubte or untill the Sherife hath amended his returne and the Entrie upon that is Remittitur only or Remittitur prisonae praed without any more And so remittitur generally is of farre lesse moment in the award upon the Habeas Corpus then remittitur quousque c. howsoever the vulgar opinions raised out of the late Judgement be to the contrary All these things are of most knowne and constant use in the Court of Kings Bench as it cannot be doubted but your Lordships will easily know from the grave and learned my Lords the Judges These two courses the one of the entrie of Committitus Marescall postea traditur in Ballium and the other remittitur quousque c. Remittitur generally or Remittitur prisonae pred together with the nature of the Habeas corpus thus stated it will bee easier for me to open and your Lordships to observe whatsoever shall occurre to the purpose in the Presidents of record to which I shall come now in the particular But before I am come to the Presidents I am to let you know the resolutions of the house of Commons touching the inlargement of a man committed by the command of the King or the Privie Counsell or any other without cause shewed of such commitment it is thus That if a Freeman be committed or detained in prison or otherwise restrained by the command of the King the Privie Counsell or any other and no cause of such commitment deteiner or restraint to be expressed for which by law he ought to be committed detained or restrained and the same be returned upon a Habeas Corpus granted for the party then he ought to be delivered and bayled This resolution as it is grounded upon the Acts of Parliament already shewen and the reason of the law of the Land which is committed to the charge of another and anon also to be opened to you is strengthened also by many Presidents of Record But the Presidents of Record that concerne this point are of two kinds for the House of Commons hath informed it selfe of such as concerne it either way The first such as shew expresly that persons committed by the command of the King or of the Privie Counsell without other cause shewed have beene inlarged upon bayle when they prayed it whence it appeareth cleerely that by the law they are bayleable and so by Habeas Corpus to bee set at libertie for though they ought not to have beene committed without a cause shewed of the commitment yet it is true that the reverend Judges of this Land did such respect to such commitments by the command of the King or of the Lords of the Counsell as also to the commitment sometimes of inferiour persons that upon the Habeas Corpus they rarely used absolutely to discharge the persons instantly but only to enlarge them upon Bayle which sufficiently secures and preserves the liberty of the Subject according to the lawes that your Lordships have already heard nor in any of the cases
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
death without he be brought in answer by due Proces of law Here your Lordships see the usuall words of The law of the Land are rendred by Due Proces of the law 36. Ed. 3. Rot. parliament numero 9. 36. E. 3. Rot. Parliam nu 9. Peticion del Commons Amongst the Petitions of the Commons one of them being translated into English out of French is thus First that the great Charter and the Charter of the Forrest and other Statutes made in the time of his Progenitors for the profit of him and his Comonaltie be well and firmly kept and put in due execution without putting disturbance or making arrest contrary to them by speciall command or in other manner Rns al peticion The Answer to the Petition which makes an Act of Parliament Our Lord the King by the Assent of the Prelates Dukes Earles Barons and the Commonaltie hath ordained or established that the said Charters and Statutes bee held and put in execution according to the said Petition It is observable that the Statutes were to be put in execution according to the said Petition which is that no arrest should bee made contrary to the Statutes by speciall command This concludes the question and is of as great force as if it were printed for the Parliament roll is the true warrant of an Act and many are omitted out of the bookes that are extant in the Roll. 36. Ed. 3. Rot. Parliamenti num 22. 36. Ed 3. Rot. parl num 22. Peticion d' Commons explaineth it further for there the Petition is Item as it is contained in the grand Charter and other Statutes that no man be taken or imprisoned by speciall command without Inditement or other due Proces to be made by the law and oftentimes it hath beene and yet is many are hindred taken and imprisoned without Inditement or other Proces made by the Law upon them as well of things done out of the Forrest of the King as for other things that it would please our said Lord to command those to bee delivered which are so taken by speciall command against the forme of the Charter and Statutes as aforesaid Rns al Peticion The answer is St. 27. Ed 3. ca. 18. The King is pleased that if any man find himselfe grieved that he come and make his complaint and right shall be done unto him 37 Ed. 3. cap. 8. agreeth in substance with them it saieth Though it be contained in the great Charter that no man be taken nor imprisoned nor put out of his Freehold without Proces of the law Neverthelesse divers people make false suggestions to the King himselfe as well for malice as otherwise whereof the King is often grieved and divers of the Realme put in dammage against the forme of the same Charter Wherefore it is ordained that all they which make Suggestions shall be sent with the same Suggestions to the Chancellour Treasurer and his grand Counsell and that they there find suretie to pursue their Suggestions and incurre the same paine that the other should have had if he were attainted in case that the Suggestion be found evill and that then Proces of law be made against them without being taken or imprisoned against the forme of the said Charter and other Statutes here the law of the Land in the grand Charter is explained to be without Proces of law Sta. 42. Ed. 3. ca. 13. 42. Ed. 3. cap. 13. At the request of the Commons by their Petition put forth in this Parliament to eschew mischiefe and dammage done to divers of his Commons by false accusers which oftentimes have made their accusasions more for revenge and singular profit then for the profit of the King or of his people which accused persons Some have beene taken and caused to come before the Kings Counsell by Writ and otherwise upon grievous paines against the Law It is assented and accorded for the good governance of the Commons that no man be put to answer without presentment or matter of record or by due Proces and Writ originall according to the old law of the Land And if any thing from hence bee done to the contrary it shall be void in the Law and holden for Error Sta. 42. Ed. 3. Rot. Parliam num 12. But this is better in the Parliament roll where the Petition and answer which make the Act are set downe at large 42. Ed. 3. Rot. Parliamenti numero 12. Peticion des Cōmons The Petition Item Because that many of your Commons are hurt and destroyed by false accusers who make their accusations more for their revenge and particular gaine then for the profit of the King or of his people And those that are accused by them some are taken and others are made to come before the Kings Counsell by Writ or other commandement of the King upon grievous paines contrary to the Law That it would please our Lord the King and his good Counsell for the just government of his people to ordaine that if hereafter any accuser purpose any matter for the profit of the King that the same matter be sent to the Iustices of the one bench or of the other or the Assises to be inquired and determined according to the Law and if it concerne the Accuser or party that he take his Suit at the common law and that no man bee put to answer without presentment before Iustices or matter of Record and by due Proces and originall Writ according to the ancient law of the Land And if any thing henceforward bee done to the contrary that it bee void in law and held for error Here by due Proces and originall Writ according to the ancient Law of the Land is meant the same thing as per legem terrae in Magna Charta and the abuse was they were put to answer to the commandement of the King Rns al petition The Kings Answer is thus Because that this Article is an Article of the grand Charter the King willeth that this bee done as the Petition doth demand By this appeareth that per legem terrae in Magna Charta is meant by due Proces of the Law Obi. hors d' l' Sta. de Westm 1. cap. 15. Thus your Lordships have heard act of Parliament in the point But the Statute of Westminst 1. cap. 15. is urged to disprove this opinion where it is expresly said Que ne sont repleviseable que sont commit per le command le Roy. that a man is not repleviseable who is committed by the command of the King therefore the Command of the King without any cause shewed is sufficient to commit a man to prison And because the strength of the Argument may appeare and the Answer bee better understood I will reade the words of the Statute which are thus Les parols d' Sta. And forasmuch as Sheriff and others which have taken and kept in prison persons detected for Felonie and oftentimes have let out
it selfe Le Rns Hereunto it was answered that the Statutes were as direct as could bee which appeareth by the reading of them and that though some of them speak of Suggestions of the Subjects yet others do not and they that doe are as effectuall for that they are in equall reason a commitment by the command of the King being of as great force when it moveth from a Suggestion from a Subject as when the King taketh notice of it himselfe the rather for that Kings seldome intermeddle with matters of this nature but by information from some of their people 2. Object 2. Master Attorney objected that per legem terrae in Magna Charta which is the foundation of this question cannot be understood for Proces of the Law and originall Writs for that in criminall proceedings no originall Writ is used at all But every Constable either for Felonie or breach of the Peace or to prevent the breach of the Peace may commit without Proces or originall Writ and it were hard the King should not have the power of a Constable And the Statute cyted by the Commons make Proces of the Law and Writ originall to be all one Le Rns The answer of the Commons to this Objection was that they doe not intend originall Writs only by the Law of the Land but all other legall Proces which comprehends the whole proceedings of Law upon cause other then triall by Jury Judicium parium unto which it is opposed thus much is imported ex vi termini out of the word Proces and by the true acceptation thereof in the Statutes which have beene used by the Commons to maintaine their Declaration and most especially the Statutes of 25. Ed. 3. cap. 4. where it appeareth that a man ought to be brought in to answer by the course of the Law having former mention of Proces made by originall Writ And in 28. Ed. 3. cap. 3. by the course of the Law is rendred by the due Proces of the Law And 36. Ed. 3. Rot. Parliamenti numero 20. The Petition of the Commons saith that no man ought to bee imprisoned by speciall command without Inditement or other due Proces to bee made by the Law 37. Ed. 3. cap. 18. calleth the same thing Proces of the Law and 42. Ed. 3. cap. 3. stileth it by due Proces and Writ originall where the conjunctive must be taken for a dis-junctive which charge is ordinary to an exposition of Statutes and Deeds to avoid inconveniences to make it stand with the rest and with reason as it may be collected by the law of the Land in Magna Charta by the course of the Law in 25. Ed. 3. by the due Proces of Law in 28. Ed. 3. other due Proces to bee made by the Law in 36. Ed. 3. Proces of the Law in 37. Ed. 3. and by due Proces and Writ originall in 42. Ed. 3. are one and the same thing the later of these Statutes referring alwayes to the former and that all of them import any due and regular proceedings of law upon a cause other then the triall by Jurie And this appeareth 10. Rep. 74. in the Case of the Marshalsea and 11. Rep. 99. James Baggs Case where it is understood of giving Jurisdiction by Charter or prescription which is the ground of a proceeding by course of law And in Seldens Notes on Fortescue fol. 29. where it is expounded for Law wager which is likewise a tryall by law by the oath of the parties differing from that by Jurie And it doth truly comprehend these and all other regular proceedings in law upon cause which gives authoritie to the Constable to arrest upon cause And if this be not the true exposition of these words per legem terrae the Kings Counsell were desired to declare their meaning which they never offered to doe and yet certainly these words were not put into the Statute without some intention of consequence 3. Objection And thereupon Mr. Serjant Ashley offered an interpretation of them thus namely that there were divers Lawes of this Realme as the Common law the law of the Chancery the Ecclesiasticall law the law of the Admiraltie or Marine law the law of Merchants the Marshall law and the law of State and that these words per legem terrae doe extend to all these Lawes Rns a ceo To this it was answered that wee read of no law of State and that none of these Lawes can bee meant there save the Common law which is the principall and generall Law and is alwayes understood by the way of Excellencie when mention is of the law of the Land generally and that though each of the other Lawes which are admitted into this Kingdome by Custome or Act of Parliament may justly be called a law of the Land yet none of them can have the preheminence to be stiled the Law of the Land And no Statute Law booke or other authority printed or unprinted could be shewen to prove that the Law of the Land being generally mentioned was ever intended of any other then the Common Law and yet even by these other Lawes a man may not be committed without a cause expressed But it standeth with the rule of other legall expositions that per legem terrae must be meant the Common Law which is the generall and universall Law by which men hold their Inheritances and therefore if a man speake of Escuage generally it is understood as Littleton observeth Sect. 99. of the incertaine Escuage which is a Knights service tenure for the defence of the Realme by the body of the tenant in time of warres and not of a certaine Escuage which giveth only a contribution in money and no personall service And if a Statute speak of the Kings Courts of Record it is meant only of the 4. at Westminster by way of excellencie 6. Rep. 20. Gregories Case So the Canonists by the Excommunication simply spoken doe intend the greater excommunication And the Emperour in his Institutions saith that the Civill Law being spoken generally is meant of the Civill law of Rome though the Law of every City is a Civill Law as when a man names the Poet the Graecians understand Homer the Latinists Virgil 2. Admit per legem terrae extend to all the Lawes of the Land yet a man must not be committed by any of them but by the due proceedings that are executed by those Lawes and upon a cause declared 4. Object Againe it was urged that the King was not bound to expresse a cause of imprisonment because there may be in it matter of State not fit to be revealed for a time lest the confederates thereupon make meanes to escape the hands of Justice And therfore the Statute cannot be intended to restrain all commitments unlesse a cause be expressed for that it would be very inconvenient and dangerous to the State to publish the Cause at the very first Le Rns Hereunto it was
committed one cause must be pretended and another intended especially when it toucheth matter of State Rns Whereunto it was answered that all dissimulation especially in a cause of Justice was to be avoided and soundnesse of truth to take place And therefore David that was both a King and a Prophet prayed unto Almighty God against dissimulation in these words Lord send me a sound heart in thy Statutes that I be not ashamed where found in the originall signifieth upright without dissimulation and shame followes dissimulation when the truth is knowne The third objection 3 If a Rebell be attainted in Ireland and his children for safety and matter of State be kept in the Tower what shall be returned upon the habeat corpus Rns Whereunto it was answered that their imprisonment might be justified if they could not find good sureties for their good behaviour 2. It was charity to finde them meat drink and cloath that by the Attainder of their Father had nothing The fourth objection 4 Though his Majestie expresseth no cause yet it must be intended there was a just cause Rns Bracton Fleta Answere De non apparentibus non existentibus eadem ratio The fifth objection 25. Ed. 3. cap. 13 Stat. 4. H. 7. 6. 5 The King in stead of gold or silver may make money currant of any base mettall 2. He may make warres at his pleasure 3. Hee may pardon whom he will 4. Hee may make Denizens as many as he will and these were said to be greater prerogatives then these in question Rns Answer to the first It was denied that the King might make money Currant of base money but it ought to be of gold or silver 2. It was answered admitting that the King might do it his losse and charge was more then of his Subjects both in the Case of money and in the Case of warre the pardon was private out of grace and no man had danger or losse by it and so the making of Denizens the King was onely the looser vizt where hee had double Customes to have single 3. It was a non sequitur the King may doe these things ergo hee may imprison at will Your Lordships are now advised by those that cannot be daunted for feare nor misled by affected reward or hope of preferment that is of the dead 1 By ancient and many Acts of Parliament in the point besides Magna Charta which hath beene 30 times confirmed and commanded to be put in execution whereto the Kings of England have 30 times given their royall assent 2 Judiciall Presidents of grave and reverend Judges in terminis terminantibus that long since are departed this world 3 And lastly per vividas rationes manifest and apparent reasons Wee of the House of Commons have upon great Studie and serious consideration made a great manifesto unanimously nullo contradicente concerning this great liberty of the Subject and have vindicated and recovered the body of this fundamentall liberty both of your Lordships and of our selves from shadowes which sometimes of the day are long sometimes short and sometimes long againe And therefore no Judges are to be led by them your Lordships are involved in the same danger and therefore ex congruo condigno Wee desired a conference to the end your Lordships may make the like declaration as we have done Commune periculum requireth commune auxilium and thereupon take such further course as may secure both your Lordships and us and all your and our posterities in enjoying our ancient undoubted and fundamentall liberties FINIS The substance of the obiections made by M. Attorney Generall before a Committee of both Houses to the Argument that was made by the House of Commons at the first conference with the Lords out of Presidents of Record and resolutions of the ludges in former times touching the liberty of the person of every Freeman and the answers and replies then presently made by the House of Commons to those objections M. Attorneyes objections AFter the first conference which was desired by the Lords and had by a Committee of both Houses in the painted Chamber touching the reasons lawes acts of Parliament and Presidents concerning the liberty of the person of every Freeman M. Attorney Generall being heard before a Committee of both Houses as it was assented by the House of Commons that hee might be before they went up to the conference after some preamble made wherein hee declared the answering of all reasons of Law and Acts of Parliament came onely to the Presidents used in the Arguments before delivered and so endevoured to weaken the strength of them that had bin brought on the behalfe of the Subject to shew that some were directly contrary to the Law comprehended in the resolutions of the House of Commons touching the bayling of prisoners returned upon the Writ of Habeas Corpus to be committed by the speciall command of the King or of the Counsell without any cause shewed for which they ought by Law to be committed And the course that was taken which it pleased the Committee of both Houses to allow of was that M. Attorney should make his objections to every particular President and that the Gent. appointed and trusted by the House of Commons by severall replies should satisfie the Lords touching the severall objections made by him against or upon every particular as the order of the Presidents should lead them He began with the first 12 Presidents that were used by the House of Commons at the conference desired by them to prove that prisoners returned to stand so committed were delivered by bayle by the Court of Kings Bench. Objection al Bildestons Case cite devant fo 35. 55. The first was that of Bildestons Case in 18 Ed. 3. Rot. 33. To this he objected 1. That in thereturne of him into the Court it did not appeare that this Bildeston was committed by the Kings Command And secondly that in the Record it did appeare also that he had beene committed for suspition of counterfetting of the great Seal and so by consequence was bayleable in the Law in regard there appeared a cause why hee was committed in which case it was granted by him as indeed it is plaine and agreed of all hands that the prisoner is bayleable though committed by the Command of the King And he said that this part of Record by which it appeared hee had beene committed for this suspition of treason was not observed to the Lords in their Argument before used And he shewed also to the Lords that there were three severall kinds of Records by which the full truth of every award or bayling upon a habeat corpus is knowne First by the remembrance roll wherein the award is given Secondly the file of the Writ and the returne Thirdly The Scruet Roll or Scruet Finn ' wherein the Bayle is entred and that onely the remembrance roll of this case was to be found and that if the
belonged unto them but the Gent. that spake in behalfe of the House of Commons came there bound on the one side by the trust reposed in them by their Country that sent them and on the other side by an oath taken by every of them before hee sit in the House to maintaine and defend the rights and prerogatives of the Crown for even in the point of Confidence alone those of them that speake as retained Counsell by perpetuall Fee and those that by their place being admitted to speake are bound to utter nothing but truth both by such a trust and such an oath were no way to be so compared or counterpoised as if the one were of no more waight then the other Resolution de 34. El. explaine expound For that of the resolution of all the Judges in England in 34. El. It was shewed that plainly it agreed with the resolution of the House of Commons for although indeed it might have beene expressed with more perspicuity yet the words of it as they are sufficiently shew that to them To that purpose besides the words of the whole frame of this resolution of the Judges as it is in the Copie transcribed out of the Lord chiefe Justice Andersons Book written with his owne hand which book was here offered to be shewed in the behalfe of the House of Commons it was observed that the words of the first part of it shew plainly that all the Judges of England then resolved that the prisoners spoken of in that first part of their resolution were onely prisoners committed with cause shewed for they onely say they might not be delâ—vered by any of the Courts without due triall by law and judgement of the acquittall they must be delivered but it is cleare that no triall or acquittall can be had where there is not some cause laid to their charge for which they ought to stand committed Therefore in that part of the resolution such prisoners are onely meant as are committed with cause shewed as which also the Judges expresly in that resolution expresly thought necessary as appeares in the second part of their resolution wherein they have these words If upon the returne of their Habeas Corpus the cause of their commitment be certified to the Judges as it ought to be c. By which words they shew plainly that every returne of a commitment is insufficient that hath not a cause shewed of it And to that which M. Attorney said as if the Cause were sufficiently expressed in generality if the Kings command or the Counsels were expressed in it as if that were meant in the resolution for a sufficient generall cause It was answered that it was never heard of in Law that the power or person that committed the prisoner was understood for the causa captionis or causa detentionis but onely the reason why that power or person committed the prisoner as also in common speech if any man aske why or for what cause a man stands committed the answere is not that such a one committed him but his offence or some other cause is understood in the question and is to be shewed in the Answer but to say that such a one committed the prisoner is an answer onely to the question who committed him and not why or for what canse hee stands so committed That for that of the Copie of the report in 13 Iac. shewed forth by M. Attorney it was answered by the Gent. of the House of Commons that the report it selfe which had beene before seene and perused among many other things at a Committee made by the House was of sleight or no authority for that it was taken by one who was at that time a young Student and as a reporter in the Kings Bench and there was not any other report to be found to agree with it Secondly although the reports of young Students when they take the words of Judges as they fall from their mouthes at the Bench and in the same person and forme as they have spoken may be of good credit yet in this Case there was not one word so reported but in truth there being three cases of a time in the Kings Bench one Rosewells Case Allens and one Saltonstalls case every of which had something of like nature in it the Student having beene present in the Court made up the frame of one report or case out of all three in his owne words and so put it into his Book so that there is not a word in the report but it is framed according to the Students fancie as it is written and nothing is expressed in it as it came from the mouth of the Judges otherwise then as his fancy directed him Thirdly there are in the report plaine falshoods of matter of fact which are to be attributed either to the Judges or to the reporter It is most likely by all reason that they proceeded from the reporters faults and howsoever these matters of falshood shew sufficiently that the credit of the rest is of light value It it said in the report that Harecourt being committed by the Counsell was bayled in 40. El. upon a Privie Seale or a Letter whereas in truth there is no such thing And it is said here that kind of Letters are filed in the Crowne Office whereas in truth there was any such kind of Letters filed there in any case whatsoever that resolution of the Judges in 34. El. is mis-cited there and made in 36. El. And it is said there that by that resolution a Prisoner returned to be committed by the Command of the King might not at all be delivered by the Court whereas no such thing is comprehended in that resolution But that which is of most moment is that howsoever the truth of the report were yet the opinion of the Judges being sudden and without any debate had of the Case is of light moment for in difficult points especially the most grave and learned men living may on the sudden let fall and that without any disparagement to them such opinions as they may will and ought to change upon further inquirie examination and full debate had before them and mature deliberation taken by them Now plainly in that of 13. Jac. there is not so much as a pretence of any debate at the Barre or Bench. All that is reported to have beene is reported as spoken of the sudden And can any man take such a sudden opinion to be of value against such debates and mature deliberations since had of the point And indeed this great point and all circumstances belonging to it hath within this halfe yeare beene so fully examined and searched into that it may well be affirmed that the most learned man whosoever that hath now considered of it hath within that time or might have learned more reason of satisfaction in it then ever before he met with Therefore the sudden opinion of the Judges to the contrary is of no value here which also is to be said by that opinion obliviously delivered in the Commons house in 18. Iac. as Master Attorney objected out of the Journall of the House But besides neither was the truth of that report of that opinion of the Journall any way acknowledged for it was said on the behalfe of the house of Commons that their Journals were for matters of Orders and resolutions of the House of such Authority as that they were as their Records But for any particular mans opinion noted in any of them it was so farre from being of any authority there with them that in truth no particular opinion is at all to be entred in them and that their Clerke offends whenever bee doth to the contrary And to conclude no such opinion whatsoever can be sufficient to weaken the cleare Law comprehended in these resolutions of the House of Commons grounded upon so many Acts of Parliament so much reason of the Common law and so many Presidents of Record and the resolution of all the Judges of England and against which not one Law written or unwritten not one President not one reason hath beene brought that make any thing to the contrary And thus to this purpose ended the next day of the Conference desired by the Lords and had by a Committee of both Houses FINIS
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
those of the second kind or such as are pretended that persons so committed are not to be inlarged by the Iudges upon the habeas corpus brought but to remaine in prison still at the command of the King or the privie Counsell Presidents del 2. sort vouch ê‘ le Roy. These are of two natures the first of these are where some assent of the King or the privie Counsell appeares upon the inlargement of a prisoner so committed as if that because such assent appeares the inlargement could not have beene without such assent The second of this kind are those which have beene urged as expresse testimonies of the Iudges denying bayle and in such cases I shall open these also to your ships which being done it will most clearely appeare that there is nothing at all in any of these that makes any thing at all against the resolution of the house of Commons touching this point nay it is so farre from their making any thing against it that some of them add good weight also to the proofe of that resolution Temps H. 7 Brugs Case For those of the first nature of this second kind of Presidents they begun in the time of H. 7. Tho. Brugge and divers others were imprisoned in the Kings ad mandatum Dom. Regis they never sought remedy by habeas corpus or otherwise for ought appeares But the Roll sayes that Dominus Rex relaxavit mandatum and so they were bayled But can any man think that this is an Argument either in Law or common reason that therefore they could not have beene bayled without such assent It is common in Cases of common persons that one being in prison for surety of the peace or the like at the suit of another is bayled upon the release of the party plaintiffe Can it follow that therefore he could not have beene bayled without such release nothing is more plain then the contrary It were the same thing to say that if it appeare that if a plaintiff be non suit therefore unlesse he had been non suit he could not have been barred in the suit The Case last cited is Mich. 7. H. 7 rot 6. 7 H. 7. Bartholomews Case The very like is in the same yeare Hill 7. H. 7. Rot. 13. The Case of Will. Bartholomew Will. Chase and divers others and the selfe same answer that is given to the other cleares this 7 H. 7. Beomonds Case So in the same yeare Pas 7. H. 7 rot 18. Iohn Beomonds Case is the same in substance with those other two and the self same answer also satisfies that cleares them 12 H. 7. Yews Case The next Case is Mich. 12. H. 7. rot 8. Tho. Yews Case hee was committed ad sec pacis for the security of the peace at the suit of one Freeman and besides ad mandatum Dom. Regis And first Freeman relaxavit sec pacis and then Sir James Hubbard the then Kings Attomey Generall relaxavit mandatum Dom Regis And hereupon he is bayled the release of the Kings Attomy no more proves that he could not have bin inlarged without such release or assent then that he could not have bin bayled without release of surety of the peace by Freeman 9 H. 7. Bochers Case The very like is in Hill 9. H. 7. rot 14. The Case of Humphry Boch which proves no more here then the rest of this kind already cited 39 Eliza. Broomes case Then for this point also Broomes Case of Queene Elizabeths time is Trim. 39. El. rot 128. Lawrence Broome was committed to the Gatehouse per mandatum Dom. Consilii Dominae Reginae And being returned so upon the habeas corpus is first committed to the Marshalsey as the course is and then bayled by the Court which indeed is an expresse president that might perhaps well have been added to the number of the first 12 which so plainly shew the practise of inlarging prisoners in this Case by judgment of the Court upon the habeas corpus But it is true that in the scrowles of that yeare where the bayles are entred but not in the Record of the Habeas Corpus there was a note that this Broome was bayled per mandatum privati Consilii but plainly this is not any kind of Argument that therefore in law he might not have beene other wise bayled 40 Wendens Case The selfe same is to be said of another of this kind in Mich. 40. El. rot 37. Wendens Case Tho. Wenden was committed to the Gatehouse by the Queene and the Lords of the Counsell procertis causis generally he is brought by Habeas corpus into the Kings Bench and bayled by the Court But it is said that in the Scrowles of that yeare it appeares that his inlargement was pro consensum Dom. privati Consilii and it is true that the Queenes Attorney did tell the Court that the Lords of the Counsell did assent to it Followes it therefore that it could not have beene without such assent 43 Eliz. Next is Hill 43. El. rot 89. when divers Gentlemen of speciall quality were imprisoned by the command of the Privie Counsell the Queen being graciously pleased to inlarge them sends a comandement to the Iudges of the Kings Bench that they should take such a course for the delivering of them upon bayle as they should think fit and they did so and inlarged them upon Writs of hab corpus Followes it therefore that this might not have beene done by law if the parties themselves had desired it Iac. Sir Io. Brockets Case So in Tr. 1 Jac. rot 30. Sir Io. Brocket being committed to the Gatehouse is returned to stand committed pro mandatum pravati Consilii and hee is inlarged virtute warranti a Consilio predicti But the same answer that satisfie for the rest before cited serves for this also 12 Iac. James Reynar Case The last of these is Reynars case in Mich. 12. Iac. rot 119. hee was committed to the Gatehouse by the Lords of the Counsel and being brought into the Kings Bench by Habeas Corpus is inlarged upon bayl but this they say was upon a letter written from one of the Lords of the Counsell to the Iudges It is true that such a letter was written but the answer to the former presidents of this nature are sufficient to cleare this also And in all these observe 1 That it appeares not that the party ever desired to be inlarged by the Court or was denied it 2 Letters either from the King or Counsell cannot alter the law in any case So that hitherto nothing hath beene brought on the coÌ„trary part that hath any force or colour of reasoÌ„ in it Wee come now my Lords to those presidents of the other nature cited against the liberty of the Subject That is such as have beene used to mislike that persons so committed may not be inlarged by the Court. They are in number eight but there is not one
Anno 8. H. 8 per cont ejusdem Rot. 23. 8. H. 8. Pages case cite devant fo 45. Edwardus Page nuper de London Gent. per Georgium Com. Salopiae Seneschall Hospitij Dom. Regis Henericum Shamburne Marr. cur Mar. Hospitij pred virtute brevis Dom. Regis de Habeas corpus ad Sect. ipsius Regis ad conservand diem c. eis inde direct coram Rege duct cum causa vizt quod idem Edwardus Captus detentus in prisona Regis Marr. pred per mandatum Dom. Regis ihidem salvo Custodiend c. Qui committitur Marr. Hospitij Dom. Regic Ter. Mich. Anno 8. Jac. Et per cont ejusdem Rot. 99. 8 Iac. Caesars case cite devant fo 46. Tho. Casar per Tho. Vavisour mil ' Marr. Hospitij Dom. Regis Marr. Marr. ejusdem Hospitij Dom. Regis virtute brevis Domini Regis de Habeas corpus ad subijciend c. ci inde direct coram Rege apud Westminst duct cum causa vizt quod ante adventum brevis pred scil 18. Julij Anno Regni dicti Dom. Regis nunc Angliae c. 7. Tho. Caesar in brevi pred nominat Captus fuit apud White-Hall in Com' Middl. per speciale mandatum Dom. Regis ac per eundem Regem ad tunc ibidem Commiss fuit prison Marr. ibidem salvo Custodiend quousque c. Et ea fuit causa captionis detentionis ejusdem Tho. Caesar Qui comittitur prisonae Marr. pred Ter. Sancti Mich. 8. Jac Regis Nisi pred Seneschall Marr. Hospitii Dom. Regis sufficienter return ' bre de Habeas Corpus Tho. Caesar die Mercur. per quinden Sanct. Martini defendens exonerabitur Ter Hill 12. Jac. Rot. 153. Marr ' Hospitii Regis 12. Iac Emersons case cite devant fo 46. Iacobus Demaistres Edwardus Emerson Georgius Brookeshall W. Steephens per Tho. Vavisour mil ' Marr. Marr. Hospitij Regis virtute bre Dom. Regis de Habeas corpus ad subijciend c. ei inde direct coram domino Rege apud Wostminst duct cum causa vizt quod ante adventum brevis pred scilt 22. Ianuar. Anno Regis Iacobi Angliae c. 12. Scot. 48. pred Iacobus Demaistres Edwardus Emerson Gregorius Brookeshall W. Steephens in brovi huic Schedul ' annex nominat Commiss fuer ' Gaol ' Marr. Hospitij Dom. Regis pro causis ipsum Regem servic ' suum tangen concernen Et hac est causa Captionis pred Iacobi Edwardi Georgij Willielmi postea immediate remittitur prafat Marr. Hospitij pred Ter. Hill 12. Jac. Regis Prison de le Fleet Sir Samuel Saltonstalls case cite devant fo 49. Samuel Saltonstall miles per Johannem Wilkinson Ar. guard de le Fleete virtute brevis Dom. Regis de Habeas Corpus ad subijciend c. ei inde direct coram Domino Rege apud Westminst duct cum causa vizt quod pred Samuel commiss fuit prisonae pred 11. Martij 1608. per Warrant a Dominis de privato consilio Dom. Regis quod detentus suit etiam idem Samuel in prisona pred virtute cujusdem ordinis in cur Canc ' Dom. Regis fact cujus ordinis tenor patet per Rot. Record istius Termini ad quem diem pred Samuel remittitur prisonae pred Et secundus dies prox ter ' datus est guardian prisonae pred ad emendand return suum sufficien super pred bre de Habeas Corpus Et quod tunc intulerit hic in cur corpus pred Samuel Saltonstall mil ' Ad quam quidem diem prefat Guardian prisonae pred super pred bre de Habeas Corpus retorn quod pred Samuel cōmissus fuit prisonae pred 11. die Martii 1608 per Warrant a Dom. de privat ' Concil dicti Dom. Regis apud Whitehal tunc Seden quod postea 11. die Febr. 1610. commiss fuit extra cur Canc. Dom. Regis apud Westminst pro contemptu suo eidem cur illat Et quod detent fuit etiam idem Samuel in prisona pred per mandat Dom. Cancellar ' Anglia super quo pred Samuel ' iterum remittitur prisonae pred ulterius dies dat' est prefat Gardian ad emendend return suum super Habeas corpus ver deftom prout stare voluit usque diem Iovis prox ' Mens Pasch Et tunc ad Habend Corpus c. Ad quam diem prefat guardian intulit corpus hic in cur retorn ' super Habeas corpus quod pred Samuel ' Commiss fuit prisonae pred 11. die Martii 1608. virtute cujusdem Warranti a Dominis de privato Concil ' Dom. Regis tunc seden apud White-Hall Et quod etiam idem Sam. Commiss fuit prisonae 11. Febr. Anno Regis Jac. 8. per cur Canc. Dom. Regis apud Westminst tunc existen pro quadam contempt per eundem Samuel eidem cur illat perpetrat proinde salvo custodiend qui remittitur prisonae pred Ter. Tr. Anno 13. Jac. per cont ejusdem Rot. 17. 13 Ia. Sir Samuel Saltonstals case cite devant fo 49. Samuel Saltonstall miles per Iohannem Wilkinson Guardian prisonae de le Fleet virtute brevis Dom. Regis de Habeas Corpus ad Subiiciend et recipiend c. eiinde direct corā Domino Rege apud Westminst duct cū causa vizt quod pred Samuel Saltonstall commissus fuit prisonae pred 12. die Martii Anno Regis Iacob Angliae c. sexto virtute cujusdam Warrant a dominis de privat Consilio Dom Regis tunc seden apud White-Hall commissus fuit etiamidem Samuel Saltonstall miles prisonae pred 12. die Febr. Anno 1610. Anno Reg. Iac. Angliae c. 8. per considerat cur Cancell ' dicti Dom. Regis apud Westminst pro contempt eidem cur ad tunc per pred Samuel illat ibidem proinde Salvo custodiend Et haec sunt causae captionis detentionis pred Sam Saltonstall mil. in prisona pred cujus tamen corpus ad diem locum infra content parat habeo prout mihi precipitur Finis d' les Presidents Sir Edward Cookes Argument Iovis 3. Apr. 4. Caroli Regis 1. REsolved upon the question that no Free-man ought to be deteined or kept in prison or other wise restrained by the command of the King or the Privie Counsell or any other unlesse some cause of the commitment deteyner or restraint bee expressed for which by Law he ought to be committed deteyned or restrained 2. That the Writ of Habeas Corpus may not bee denied but ought to be granted to every man that is committed or deteyned in prison or otherwise restrained though it be by the command of the King the Privie Counsell or any other hee praying the same That if a Free-man be committed or deteyned in prison or otherwise restrained by the Command of the King the Privie Counsell or any other
Justice and no matter of record nor any way concernign the rest of the Judges And besides the prisoner was bayleable by the Law or not bayleable if bayleable by the Law then was he to be bayled without any such Letter if not bayleable by the Law then plainly the Judges could not have bayled him upon the Letter without breach of their oathes which is that they are to doe Justice according to the Law without having respect to any command whatsoever so that the Letter in this Case or the like in any other case is for point of Law to no purpose nor hath any weight at all by way of objection against what the record and judgement of the Court shewes us 14 Ia. Sir Tho. Mounsons case devant fo 40. 58. The twelfth and last of these which is Sir Tho. Mounsons Case in 14. Jac. Rot. 147. the same objection onely was said over by him which was moved and clearely answered in the Argument at the first conference and that one ground which is infallible that the judgement upon a returne is to be made onely out of what appeares in the body of the returne it selfe was againe insisted upon in this case as it was also in most of the rest And indeed that alone which is more cleare Law fully satisfies almost all kinde of objections that have beene made to any of these Presidents which thus righty understood are many ample testimonies of the judgement of the Court of Kings Bench touching this great point in the severall ages raignes of the severall Princes under which they fall After his objections to these twelve and the replies and satisfaction given to these objections hee came next to those wherein the assent of the King or privie Counsell appeares to have beene upon the inlargement but hee made not to any of these any other kind of objection whatsoever then such as are moved and clearely answered as they were now againe in the Argument made at the first conference And for as much as it concernes Letters of Assent or direction the same was here said againe by way of reply to him as is before said touching the Letter in Beckworths Case hoc supra After these were disputed hee came to urge the eight Presidents which seemed to make for the other side against the resolution of the house of Cōmons which eight were used and copies of them also given unto the Lords at the first cōference Of these eight the first foure were urged by him as being of one kinde the difference of them being onely said the same onely in the names of prisons and of persons they were but the selfe same Vide touts ceux cite devant fo 43 44. 62. 63 objections hors de eux The force of these foure being objected thus that Richard Everard for the purpose in the first of them which is 5. H. 7. Rot. 18. Roger Cherry in the second of them which is 8. H. 7. Rot. 12. Christopher Burton in the third which is 9 H. 7. Rot. 14. and George Vrmsewick in the fourth of them which is 19 ◠7. Rot. 13. were returned into the Kings Bench by severall Writs of Habeas corpus to have been committed and detained in the prisons whence they came per mandatum Dom. Regis and that upon the returne they were committed to the Marshalsea of the Kings Bench and that howsoever it had beene objected against those Presidents that this kind of commitment was by the course of that Court alwayes done before the Bayling of the prisoner yet that it did not appeare that they were bayled Rns al objections hors des dits presidents The reply to these objections was that the constant course of the Court of Kings Bench was whosoever came in upon a hab corp or otherwise upon any Writ into that Court cannot be bayled until he be first committed to the Mar. of that Court that thence it was that all those 4 were committed to the Marshal as appears by the entry Marr ' c. which is the usual entry in such a case and that the Clerks of that Court acknowledge this course entry to be most constantiso that all the inference that can be made out of these 4 is but that 4 prisoners being brought from foure severall prisons by hab corp into the Kings Bench and returned to stand committed per mandatum Dom. Regis were so farre from being to be remanded by the Law that in all these foure cases they were first taken from their severall prisons wherein they had beene detained by such a generall command which could not have beene if they had not beene adjudged in every of the Cases to have beene bayleable by the Court and that this Commitment of them to the Marshall of the Kings Bench was the first step towards the bayling of them as in all other cases but that it appeares not that either they ever demanded to be bayled or that they were able to finde sufficient Bayle And if they did not the one or could not doe the other it may follow indeed that they were not bayled but the commitment to the Kings Bench being the first step to bayling and by constant course it is shewed most plainly that they were bayleable by the Law which is the onely thing in question so that although the foure Presidents were ranked among them that may seeme to make against the resolution of the House of Commons which was done both because they have this small colour in them for the other side to any man that is not acquainted with the nature and reasons of the Entries and courses of the Court of Kings Bench and also because all or some of them had beene used in the late great case in the Kings Bench as Presidents that made against this liberty claimed by the Subject yet in truth all soure of them doe fully prove their resolution that is they plainly shew that the Court of Kings Bench in every of them resolved that the prisoners so committed were bayleable otherwise they had beene remanded and not committed to the Marshall of the Kings Bench. And this was the answer to the objection made by M. Attorney upon these foure Presidents being all of them in the time of H. 7. 7 H. 8. Pages cas◠cite devant fo 43. 63. To the fifth of these being Ed Pages Case in 7. H. 8. Rot. 23. M. Attorney objected thus he said that Edward Page was committed to the Marshalsea of the Houshold per mandatum Dom. Regis ibid. salvo custodiend c. Qui committitur Marr. Hospitii Dom. Regis c. by which it appeares as he said that the Court remanded him to the prison of the Marshalsea of the houshold and hee said whereas it had beene objected at the first conference that here was some mistaking in the Entry he said he conceived indeed there was a mistaking but the mistaking was that the Clerk had entred committitur for remittitur and
is there any difference made betweene such cōmitments by the Lords of the Counsel that are incorporated with him The second kind of Presidents of Record are such as have beene pretended to prove the law to bee contrary and that persons so committed ought not to be set at libertie upon bayle and are in the nature of Objections out of Record I shall deliver them summarily to your Lordships with all faith and also true Copies of them out of which it shall appeare cleerely to your Lordships that of those of the first kind there are no lesse then 12. most full and directly in the point to prove that persons so committed are to be delivered upon bayle and amongst those of the other kind there is not so much as one not one that proves at all any thing to the contrary I shall first my Lords goe through them of the first kind and so observe them to your Lordships that such scruples as have beene made upon them by some that have excepted against them shall bee cleered also according as I shall open them severally Pasc 18. Ed. 3. Bildestons Case The first of the first kind is of Ed. 3. time it is in Pasche 18. Ed 3. Rot. 33. The Case was thus King Ed. 3. had committed by Writ and that under his great Seale as most of the Kings commands in those times were one Iohn de Bildeston a Clergie man to the prison to the Tower without any cause shewed of the commitment The Lievtenant of the Tower is commanded to bring him to the Kings Bench where he is commited to the Marshall but the Court askes of the Lievtenant if there were any cause to keep this Bildeston in prison besides that commitment of the King he answered no whereupon the Roll sayes Quia videtur cur bre praed sufficient non esse causam praed Iohan de Bildeston in prisona Dom Regis hic detinend ' idem Iohannes admittitur per manucaptionem Willielmi de Wakefield and some others where the Judgement of the point is fully declared in the very point 22. H. 8. Parkers Case The second in the first kind of Presidents of Record is in the time of H. 8. one Iohn Parkers Case who was committed to the Sherife of London pro securitate pacis at the suite of one Brinton ac pro suspitione feloniae committed by him in Glocestershire ac per mandatū Dom. Rs. he is committed to the Marshall of the Kings Bench postea isto eodem termino traditur in Ball ' here were other causes of the commitment but plainly one was by the command of the King signified to the Sherife of London of which they tooke notice but some have interpreted this as if the commitment had beene for suspition of felonie by the command of the King in which case it is agreeable of all hands that the Prisoner is bayleable but no man can thinke so of this president that observes the context and understands the Grammar of it wherein most plainly ac per mandatū Dom. Regis hath no reference to any other cause whatsoever but is as a single Cause enumerated in the returne by it selfe as the Record cleerely sheweth it is in 22. H. 8. Rot. 37. 35. H. 8. Bincks Case The third is of the same Kings time it is 35. H. 8. Rot. 33. Iohn Bincks Case he was committed by the Lords of the Counsell pro suspitioniae feloniae ac pro aliis causis illos moventibus qui committitur Mariscallo immediate ex gratia curiae speciali traditur in Ball ' They committed him for suspition of felonie and other causes them thereunto moving wherein there might be matter of State or whatsoever else can be supposed and plainly the cause of their commitment is not expressed yet the Court bayled him without having regard to these unknowne causes that moved the Lords of the Counsell But it is indeed some difference from either of those other 2. that precede and from the other 9. also that follow for it is agreed that if a cause be expressed in the returne insomuch that the Court can know why he is committed that then he may be bayled but not if they know not the cause now a man is committed for a cause expressed pro aliis causis Dominos de Consilio moventibus certainly the Court can no more know in such a case what the cause is then any other 2. 3. P Mar. Overtons Case The fourth of these is in the time of Queene Mary it is Pasche 2. 3. P. Mar. Rot. 58. Overtons Case Richard Overton was returned upon a Habeas Corpus directed to the Sherifes of London to have beene committed to them and deteyned per mandatum pranobilium Dominorum honorabilis consilij Dominorum Regis Reginae Qui committitur Marr. immediate traditur in Ball ' In answer to this President or by way of objection to the force of it It hath beene said that this Overton at this time stood indicted of high treason It is true he was so indicted but that appeares in another Roll that hath no reference to the returne as the returne hath no reference to that Roll yet they that object this against the force of this President say that because he was Indicted of Treason therefore though he were committed by the Command of the Lords of the Counsell without cause shewed yet he was bayleable for the Treason and upon that was here bayled Then which objection nothing is more contrary either to law or common reason It is most contrary to law for that cleerely every returne is to be adjudged by the Court out of the body of it selfe and not by any other collaterall or forraigne Record whatsoever Therefore the matter of Indictment here cannot in law be cause of bayling of the Prisoner And so it is averse to all common reason that if the objection be admitted it must of necessitie follow that whosoever shall be committed by the King or the Privie Counsell without cause shewed and bee not indicted of Treason or some other offence may not be inlarged for by reason of supposition of matter of State But that whosoever is so committed and withall stands so indicted though in another Record may bee inlarged whatsoever the matter of State be for which he was committed The absurditie of which assertion needs not a word for further confutation as if any of the Gent. in the last judgement ought to have beene the sooner delivered if hee had beene also Indited of Treason if so Traitours and Fellons have the highest priviledge in personall libertie and that above all other Subjects of the Kingdome 4. 5. Phil. Mar. Newports Case The fifth of this kind is of Queene Maries time also it is Pasch 4. 5. P. Mar. Rot. 45. the Case of Edward Newport hee was brought into the Kings Bench by Habeas Corpus out of the Tower of London Cum causa vizt