Court hath delivered the party but you shall see the contrary concluded in every Case that you have put where the cause of the commitment hath been expressed there the party hath been delivered by the Court if the Case so required but where there hath been no cause expressed they have ever been remaunded or if they have been delivered they have been delivered by the Kings direction or by the Lords of the Councell If this fall now in proof you see you have gathered fair conclusions out of the Records and that you may see that this is so I have brought the Records with me of your own propounding and I will goe through them from point to point and then judge your selves of the case It is not materiall whether I call for them in that order as you produced them or no and therefore I will take them as they are first or last in the Kings Reign They are in number many in the time of Henry the seventh Henry the eighth Queen Mary Queen Elizabeth and King James his time I will shew you Sir Thomas Monsons Case in 14 Iacobi which was in all our memories I will begin with Pasche in 8 H. 7. Roger Cherries Case you vouched it to this purpose That Cherry being committed by the Major of Windsor was brought hither by a Habeas Corpus and the Major he returns that he was committed Per mandatum domini Regis and that thereupon he was delivered but you shall find by the Record that he was committed by the Major at the suit of the King for felony for which he was afterwards indicted brought to a triall and then discharged Vide this Record in Master Seldens Argument in the Parliament 3 4 Caroli Regis and so all the rest after mentioned The next was 19 H. 7. Vrswicks Case and you say he was brought hither by the Warden of the Fleet who as you said returned that he was committed Per mandatum domini Regis and you said he was discharged but he was bailed upon the Lords Letter and brought hither to record his return for he was bound to appear here and then he was discharged but that was the cause of his bringing hither vide the Records as aforesaid The next was Hugh Pains Case in 21 H. 7. and that you urged thus you say that he was brought hither by a Habeas Corpus by the Warden of the Fleet who returned that he was committed by the Kings Councell and he was bailed Now we finde that he was committed by them for suspition of felony and that cause was declared and he was bailed so that you see there was a cause expressed Vide the Record aforesaid The next is 2 H. 8. Thomas Beckley and Robert Harrisons Case these you said were brought in hither by George Earle of Shrewsbury and Thomas Earle of Surrey and the Return was that they were committed by the command of Hen. 7. and that they were bailed but you shall finde that they were committed for suspition of felony and that Harrison was committed by Hen. 7. but it was for Homicide upon the Sea and so the cause is expressed and afterwards he was bailed The next was in 22 H. 8. John Parkers Case you urged it to this purpose That he was brought hither by a Habeas Corpus by the Sheriffs of London and they you said returned that he was committed Per speciale mandatum domini Regis nunciatum c. by Robert Peck c. the cause why you urged this was twofold first that he was committed by the Kings command and yet he was bailed secondly that he was committed Per mandatum domini Regis nunciat ' per such a one But you shall finde by the Record that he was committed for the security of peace and for suspition of felony and that was the cause for which he was bailed for he is bailable by Law when such a cause appears Vide the Record as afore Goe on to the next and that is Peter Mans Case in the 3 4 Philip and Mary you urged that to this purpose You say that he was brought by the Keeper of the Gatehouse and you say that he returned that he was committed by the command of the King and the Queens Councell and thereupon he was bailed but you shall finde that he was committed for suspition of felony and robbery and thereupon he was bailed The next is in the 4 5 Phil. Mar. Edward Newports Case you said that the Constable of the Tower brought him hither and returned that he was committed by the Councell of the King and the Queen and that he was bailed but you see the Records that he was committed for suspition of coyning which is bailable onely in this Court and therefore it was removed hither yet this I must tell you that it is true in one Record it appears not but as you have cited it but you may see how it is supplied by another Record and the cause and he was delivered by a Proclamation Vide both Records in Master Seldens Argument as aforesaid Doderidge He could not be delivered by Proclamation unlesse it was for a criminall cause Hide Chief Iustice Observe another thing in the Book he is brought hither by the speciall command of the Councell so that although it appears not in the Record yet if the King or Lords mean to have him tried for his life he is brought hither Then you cited Robert Constables case 9 Eliz. and you said he was brought hither by the Lieutenant of the Tower who returned that he was committed by the Lords of the Councell and thereupon he was bailed but you shall finde that he came hither to plead his pardon and he was pardoned Vide the Record as aforesaid Thomas Laurence Case in 9 Eliz. is the same with Constables for it appears that he was brought hither to plead his pardon and he was pardoned and that was the cause he was brought hither The next was in 21 Eliz. John Brownings case it is true he was committed by the Lords of the Councell and he was brought by a Habeas Corpus to the chamber of Sir Christopher Wray Chief Justice and he was there bailed The next was 33 Eliz. William Rogers and he you said was brought hither by the Keeper of the Gatehouse who returned that he was committed to him by the Lords of the Councell yet there was a cause expressed and that was for suspition of coining of money The next was in 39 Eliz. Lawrence Brown you say that he was brought hither by the Keeper of the Gate-house who returned that he was committed for divers causes moving the Lords of the Councell and thereupon he was delivered but the Record is that the Return also was for suspition of Treason and although the suspition of Treason appears not in one Record yet there is another for it Here you see cause of his commitment and that he was bailed but it was by the Kings command Vsque
uncertain and per speciale mandatum c. be within the meaning of these words according to the law then this Act had done nothing The Act is No Free-man shall be imprisoned but by the law of the land if you will understand these words per legem terrae in the first sense this statute shall extend to Villains as well as to Free-men for if I imprison another man Villain the Villain may have an action of false imprisonment But the Lords and the King for then they both had Villains might imprison them and the Villain could have no remedy but these words in the statute per legem terrae were to the Free-man which ought not to be imprisoned but by due processe of law and unlesse the interpretation shall be this the Free-man shall have no priviledge above the Villain So that I conceive my Lord these words per legem terrae must be here so interpreted as in 42 Eliz. the Bill is worth the observing it reciteth that divers persons without any writ or presentment were cast into prison c. that it might be enacted that it should not be so done hereafter the answer there is that this is an Article of the great Charter this should be granted so that it seems the statute is not taken to be an explanation of that of Magna Charta but the very words of the statute of Magna Charta I will conclude with a little observation upon these words nec super eum mittimus which words of themselves signifie not so much a man cannot finde any fit sense for them But my Lord in the seventh year of King Iohn there was a great Charter by which this statute in the ninth of Henry the third whereby we are now regulated was framed and there the words are nec eum in Carcerem mittimus we will not commit him to prison that is the King himself will not and to justifie this there is a story of that time in Matthew Paris and in that Book this Charter of King Iohn is set down at large which Book is very authentique and there it is entred and in the ninth of Henry the third he saith that the statute was renued in the same words with the Charter of King Iohn and my Lord he might know it better then others for he was the Kings Chronologer in those times and therefore my Lord since there be so many reasons and so many presidents and so many statutes which declare that no Free-man whatsoever ought to be imprisoned but according to the laws of the land and that the liberty of the subject is the highest inheritance that hee hath my humble request is that according to the ancient laws and priviledges of this Realm this Gentleman my Client may be be bailed The Argument of Mr Calthrop at the Kings Bench Bar 22 Novembris Mich. 3. Caroli Regis Sir Iohn Corbet being brought to the Kings Bench Bar with Sir Edmond Hampden Sir Walter Earl and Sir Iohn Henningham who wer also brought thither by severall writs of Habeas corpus with the same return I being assigned by the Court of Kings Bench upon a petition delivered to be of Councell with Sir Iohn Corbet did move that Sir Iohn Corbet might bee discharged of his imprisonment and put in bail for I did conceive that the return of this Habeas corpus was insufficient both in the matter of the return and in the manner of the return and so there ought not to be a longer detaining of Sir Iohn Corbet in prison for as unto the manner of the return it is not laid downe precisely that Sir Iohn Corbet is detained in prison by the speciall commandment of the King signified by the warrant of the Lords of the Councell the which is not a direct affirmation that he is detained by the speciall command of the King but that the Lords of the Councell by their warrant have signified unto him that he was committed and still detained by the speciall command of the King And howsoever the Lords of the Councell had signified that he was detained by the commandment of the King yet it may be he was not detained by the commandment of the King for their signification of the same by warrant may be untrue and the warrant of the Lords of the Councell that is returned in haec verba importeth that the keeper of the Gatehouse rather tooke upon him to return that was signified unto him by the warrant of the Lords of the Councel that Sir Iohn Corbet was committed and detained by the speciall commandment of the King because if the keeper had taken upon him to affirm it upon his return then needed he not to have returned the warrants of the Lords of the Councell and the warrant it self sheweth that hee had onely his information from the Lords of the Councell for their warrant is to let the keeper know that both the first commitment and this direction for the continuing of him in prison were and are by his Majesties speciall commandment and I doe not see as this return is made that an accord upon the case can lie upon the keeper of the Gatehouse if Sir Iohn Corbet was not committed nor detained by the speciall commandment of the King so long as the warrant of the Lords of the Councell bee returned as it was made because hee doth return the same as the Significavit of the Lords by their warrant Register 65. the writ of Excommunication Capiend ' goeth Rex vicecom ' Lincoln ' S. significavit nob ' venerabilis Pater Henricus Lincolniensis Episcopus per Literas suas Patentes quod R. suus Parochial ' propter suam manifestam contumac ' authoritate ipsius Episc ordin ' excom ' est nec se vult per censuram Ecclesiasticam justiciar ' c. tibi praecipimus quod praedict ' R. per corpus suum secundum consuetud ' Angliae justic ' c. and yet no man will say that there is an information of the King that R. is excommunicated but onely that the Bishop of Lincoln had signified unto him that R. was excommunicated and in Fitz. Nat. Br. 663. and Register 65. it appears that the form of the writ of Excommunication deliberand ' is Rex Vicecom ' London Salut ' Cum Thom ' lay allutar ' London qui nuper ad denuntiat venerabil ' Patris Archiep ' Eborum pro contumaciis suis ratione contractus in civitate nostra Eborum habit ' ut dicebat tanquam excom ' claves Ecclesiae contemnent ' per corp ' suum secundum confuetud ' Angliae per te justic ' praecepimus donec c. esset satisfact ' eid ' Archiepiscopâ— â—…d satisfaciendum deo et sanctae ecclesiae sufficientem exposuit cautionem per quod eidem Archiepiscopus offic Archdiac London mutuae vicissitudin ' obtentu scripsit ut ipsum absolvat ab excom ' senten ' memorata sicut idem Archiepiscopus per Literas suas Patentes nob ' significavit
Tibi praecipimus quod praed Thom ' cum tibi constare poterit ipsum ab excom ' praedict ' per praedict ' Official ' absolvi à Prison ' qua detinetur si ea occasione non alia detineat ' in eadem sine dilatione deliberari fac ' And yet it cannot be said that although the King recited in his writ that the Archbishop had signified unto him that he had written unto the Officiall of the Archdeacon that the King said that the Archbishop had written for he doth not affirme so much precisely but onely referreth himself unto the Certificate of the Archbishop Plowden 122. Buckley and Rivers case it is put that if a man will bring an action of debt upon an obligation and declare that it appeares by the obligation that the defendant stood bound to the plaintiffe in twenty pounds the which he hath not paid this declaration is not good insomuch as it is not alledged by matter in fact that he was bound unto him in twenty pound but the deed is alledged by recitall onely 21 Ed. 4. 43. Plowden Com' 126. 143. Browning and Beestons case The Abbot of Waltham being appointed collector of a Disme granted unto the King in discharge of himself in the Exchequer pleadeth Quo inter recordat ' Ter. Pasc anno 15. domini Regis Edvardi 1. inter alia continetur quod R. 2. had granted unto the predecessors of the said Abbot that he nor any of his successours should be any collectors of any dismes to be granted afterwards and it was adjudged that this plea was ill For the saying it was contained among the Records it is no precise affirmation that the King had granted to his predecessors that they should be discharged of the collecting any dismes but it is onely an allegation by way of recitall and not by precise affirmation the plea may not bee good 2 3 Mar. Dier 117. 118. the plaintiffes reply in barre of all pleadeth that Iohn Abbot of W. was seised of his lands in right of his Church and so seised by the assent of the tenant by indenture 14 Hen. 4. testat ' quod praedict ' Abbat ' convent ' demiserunt tradiderunt unto the plaintiffe and ruled that this form of pleading was ill insomuch as it was not alledged by precise affirmation quod demiserunt sed indentura testatur quod demiserunt which is not sufficient insomuch as it is onely an allegation by way of recitall that the Indenture doth witnesse and the same Indenture may witnesse so much and yet not be a demise And if in pleading there must be direct affirmation of the matter alledged then à fortiore in a return which must be more precise then in pleading and so by all the cases I have formerly touched it appeareth that this return is no expresse affirmation of the keeper of the Gatehouse that Sir Iohn Corbet is detained in prison by the speciall commandment of the King but onely an affirmation of the Lords of the Councell who had signified unto him that his detainment in prison was by speciall command of the King The return which ought to be certain and punctuall and affirmative and not by way of information out of another mans mouth may not be good as appeareth by the severall books of our Law 23 Ed. 3. Rex vic' 181. upon a Homine replegiando against the Abbot of C. the Sheriffe returneth that he had sent to the Bailiffe of the Abbot that answered him that he was the villain of the Abbot by which he might not make deliverance and a Sicut alias was awarded for this return was insufficient insomuch that he had returned the answer of the Bailiffe of the Abbot where he ought to have returned the answer of the Abbot himself out of his own mouth Trin. 22 Ed. 2. Rot. 46. parent vill ' Burg Evesque de Norwich repl ' 68. Nat. Br. Case 34. Fitz. Nat. Br. 65. 34 Ed. 3. Excom ' 29. the case appeareth to be such in a trespasse the defendant pleadeth the plaintiffe is excommunicate and sheweth forth the letter of the Bishop of Lincoln witnessing that for divers contumacies c. and because he had certified no excommunic ' done by himself but by another the letter of Excommunication was annulled for the Bishop ought to have certified his own act and not the act of another Hillarii 21 Hen. 8. Rot. 37. it appeareth by the return of an Habeas corpus that Iohn Parker was committed to prison for security of the peace and for suspition of felony as per mandatum domini Regis nunciatum per Robertum Peck de Cliffords Inne and upon his return Iohn Parker was bailed for the return Commiss fuit per speciale mandatum domini Regis nunciatum per Robertum Peck was not good insomuch that it was not a direct return that he was committed per mandatum domini Regis And for the first point I conclude that this return is insufficient in form insomuch that it doth not make a precise and direct return that he was committed and detained by the speciall command of the King but only as he was signified by the warrant of the Lords of the Councel which will not serve the turn and upon the book of 9 Hen. 6. 44. the return of the cause of a mans imprisonment ought to be precise and direct upon the Habeas corpus insomuch as thereby to be able to judge of the cause whether it be sufficient or not for there may not any doubt be taken to the return be it true or false but the Court is to accept the same as true and if it be false the party must take his remedy by action upon the case And as concerning the matter of the return it will rest upon these parts First whether the return be that he is detained in prison by speciall commandment of our Lord the King be good or not without shewing the nature of the commandment or the cause whereupon the commitment is grounded in the return The second is whether the time of the first commitment by the commandment of the King not appearing to the Court is sufficient to detain him in prison Thirdly whether the imprisonment of the subjects without cause shewed but onely by the commandment of the King be warrantable by the laws and statutes of this Realm As unto the first part I finde by the books of our law that commandments of the King are of severall natures by some of which the imprisonment of a mans body is utterly unlawfull and by others of them although the imprisonment may be lawfull yet the continuance of him without bail or mainprise will be utterly unlawfull There is a verball command of the King which is by word of mouth of the Kings only and such commandment by the King by the books of our law will not be sufficient either to imprison a man or to continue him in prison 16. 6. Monstrans de
prison or no I conceive that he ought not to be continued in prison admitting that the first commitment by the command of the King were lawfull yet when he hath continued in prison by such reasonable time as may be thought fit for that offence for which he is committed he ought to be brought to answer and not to continue still in prison without being brought to answer For it appears by the Books of our Laws that liberty is a thing so favoured by the Law that the Law will not suffer the continuance of a man in prison for any longer time then of necessity it must and therefore the Law will neither suffer the party Sheriffs or Judges to continue a man in prison by their power and their pleasure but doth speed the delivery of a man out of prison with as reasonable expedition as may be And upon this reason it is resolved in 1 2 El. Dyer 175. 8 Ed. 4. 13. That howsoever the Law alloweth that there may be no terme between the test of an originall Writ and the return of the same where there is only a summons and no imprisonment of the body yet it will not allow that there shall be a term between the test of a Writ of Capias and the return of the same where the body of a man is to be imprisoned insomuch that it will give no way that the party shall have no power to continue the body of a man imprisoned any longer time then needs must 39 E. 3. 7. 10 H. 7. 11. 6 E. 4. 69. 11. E. 4. 9. 48 E. 3. 1. 17 E. 3. 1 2 Hen. 7. Kellawaies Reports do all agree that if a Capias shall be awarded against a man for the apprehending of his body and the Sheriffe will return the Capias that is awarded against the party a non est inventus or that languidus est in prisona yet the Law will allow the party against whom it is awarded for the avoiding of his corporall penance and dures of imprisonment to appear gratis and for to answer For the Law will not allow the Sheriffe by his false return to keep one in prison longer then needs must 38 Ass pl. 22. Brooks imprisonment 100. saith That it was determined in Parliament that a man is not to be detained in prison after he hath made tender of his fine for his imprisonment therefore I desire your Lordship that Sir John Corbet may not be kept longer in durance but be discharged according to the Law The Lord Chief Justice his Speech Master Atturney you have heard many learned Arguments if you be provided to answer presently we will hear you but if you will have a longer day for that you are not provided to argue you may we will give it you Doderidge If you will you may see these presidents it may be you have not seen some of them and we must see them too Heath Atturney May it please your Lordship the Gentlemen that be of Councell with the Knights at the Barre they have said much and spoken very long for their Clients and to good purpose and pertinently It is a cause that carrieth with it a great deal of weight both towards the King and his Subjects also and I am not so hasty to put my self upon the main point of this cause when it is almost time for your Lordship to rise My Lord the Gentlemen have severally spoken and given and insisted upon severall reasons and they have cited many presidents I could say something of them at this present and that some of them have been mistaken and therefore I beseech your Lordship that I may have time to answer that I may not wrong the cause of the Kings part or slight the cause on the Subjects part But that which I desire to say now is that these Gentlemen have all of them gone in one form to divide the cause into two parts part 1 The first the form of the Return part 2 The second the matter of the Return For the form me thinks we may put an end to that now if your Lordship please that we may have no return to that another day but I may apply my self unto the matter of the Return To the form of the Return they have taken divers exceptions but they especially insisted upon two main heads First that the Return is not good because it is not an absolute Return I confesse the ground is well laid and the Major is good that if this Return be not positively the Return of the Warden of the Fleet himself but the relation of another it is no good Return therefore I need spend no time in that the ground being well laid but under your Lordships favour the Major proposition I deny we differ onely in that for I say that this Return is certain and that it is not the words of any man else but the express words of the Warden himself and that this is added ex abundanti to give satisfaction to the Court that he had order to make the Return therefore I desire your Lordship to cast your eyes upon the substance of the Return and distinguish it into parts The words are Detentus est in prisona sub custodia mea per speciale Mandatum domini Regis mihi significatum per Warrantum duorum Privati concilii dicti domini Regis c. If he had turned these words and said Detent ' est prout mihi significat ' per Warrantum duorum Privati concilii per speciale mandatum domini Regis then it might be taken to be the words of the Lords of the Councell but the first words being positive Detentus est per speciale mandatum domini Regis that is sufficient and the rest is surplusage and he doth not say prout mihi significut but mihi significat onely which is absolute and the resolution thereof resteth more in your Lordships expounding of the words then in putting any case upon them The second exception is taken to the form of the Return for that there is not the cause of the imprisonment returned but of the detaining alone My Lord I say no more to that but this No man is bound to answer more then that which is the contents of the Writ I know the Writ it may be to know specially the cause of the detaining or what the cause of the caption is onely and if the Officer make answer to that which is required of him in the Writ it is sufficient it may be there be presidents both ways I am sure there are detentions onely and there is no cause why the Officer should shew the time of his commitment but if the Prisoner shall desire it your Lordship may grant him a Writ to shew the cause both of his caption and detention also Thirdly they say that this Return is uncertain and that it is the Warrant of the Lords of the Councell and not of the King by which he is committed For that my
Lord I say that if it had all been left out and he had onely said Detentus fuit per speciale mandatum domini Regis it had been sufficient but when he doth more it is superfluous and not necessary for it appeared before by whom he was committed and when he returns the Warrant of the Lords of the Councell it is not their words that commit him but they being the Representative Body of the King they doe expresse what the Kings command is but they signifie nothing of their own and therefore I desire your Lordship to deliver your opinion in that point of the Return whether it be positive or no. This cause as it greatly concerns the Subjects so it much concerns the King too I am sorry there should be any occasion to bring these things in question but since it is now here I hope I shall give satisfaction to your Lordship and to the parties too and I desire that I may have Munday for it Hide Chief Justice I think it is not best for us to declare our opinions by peece-meals but upon all the case together and as well as you are a stranger to the Return so are we and there be many presidents and Acts of Parliament not printed which we must see Doderidge This is the greatest cause that ever I know in this Court our Judgements that we give between party and party between the King and the meanest Subject ought to be maturely advised on for so are the entries of our judgements Quod matura deliberatione habita It was judged c. And we must see the presidents and Acts of Parliament that we hear mentioned Justice Jones Master Atturney if it be so that the Law of Magna Charta and other Statutes be now in force and the gentlemen be not delivered by this Court how shall they be delivered apply your self to shew us any other way to deliver them Doderidge Yea or else they shall have a perpetuall imprisonment Per Curiam Munday was appointed for the Atturneys Argument and in the interim the Councell for the gentlemen were by order appointed for to attend the Judges with all the presidents and unprinted Statutes which they mentioned and that they should let the Atturney see them also And the gentlemen being asked if they desired to come again answered they did and a Rule was entred for it On Munday the 27 of Tertio Michaelis 3º Caroli Regis in Banco Regis Sir John Corbet Sir Walter Earle Sir Edmund Hampden and Sir John Henningham Knights were brought to the Barre Heath Atturney Generall MAY it please your Lordship these gentlemen Sir Walter Earle Sir John Corbet Sir Edmund Hampden and Sir John Henningham upon their motion to this Court to have their Habeas Corpus and that themselves and the cause of their detaining them in their severall Prisons might be brought before your Lordship had it granted to them My Lord at the first motion of it the knowledge thereof of comming and that they had such a desire his Majesty was very willing to grant unto them as to all his Subjects this common case of Justice and though it be a case which concerns himself in a high degree yet he hath been so gracious and so just as not to refuse to leave the examination and determination thereof to the Laws of this Kingdome My Lord it is very true that this is a very great Cause and hath raised a great expectation and for the manner of it more then was necessary but my Lord I am afraid these gentlemen whom it concerns have rather advised their Councell then their Councell them but I shall take the case as now I finde it and as the gentlemens Councell on the other side have led me the way to it My Lord the exceptions that have been taken by the Councell on the other side to the Return made by the Warden of the Fleet and the rest of the Guardians of severall Prisons have been two for renewing of your Lordships memory we will read one of the Returns they are all alike Then the Return was read for Sir John Henningham by Master Keeling Heath Atturney May it please your Lordship against this Return the Councell of the Gentlemen have taken some exceptions and have divided their objections into two main points The one the form the other the matter To the form they have objected four severall things First that the Return is not positive but referred to the signification made by another as the Lords of the Councell Secondly that the Keepers of the Prisons have not returned the cause of the commitment but the cause of the cause which is not good Thirdly that the Return is imperfect for that it shews onely the cause of the detaining in Prison and not the cause of the first commitment And lastly that the Return is contradictory in it self for that in the first part thereof there is a certification that the detaining of these gentlemen in prison is Per speciale mandatum domini Regis and when the Warrant of the Lords of the Councell is shewed it appears that the commitment is by the command of the King signified by the Lords of the Councell and by your Lordships favour I will give a severall answer to every of these severall objections And for the first that the Return is not positive and affirmative but depends upon and hath relation to some other and therefore it is not good I doe agree that the ground is true that if the Return be not positive it is not good we differ onely in the Minor That the Return is not positive and affirmative for I agree that these Book cases that have been put are good Law as 27 Ass pl. 65. that if the Sheriffe return that he hath sent to the Bailiffe of the hundred and he gives him that answer that is no good Return for the Sheriffs ought to make the Return as of his own act without naming of the Bailiffe of the Hundred in his Return for if he return Quod mandavi Ballivo itineranti qui habet Retorn omnium Brevium executionem eorund per Cartam domini Regis qui mihi dedit nullum Responsum this is not good if he were not Bailiffe of a Franchise or Signiory for so is 21 H. 7. fol. 4. There hath been cited to maintain these objections 20 Ed. 3. the Record I have perused and there I finde that the Bishop said that it is found in Archivis in the Record c. that he was excommunicated but it was found to be in Archivis c. and that is no positive return that it is so I will oppugne what hath been said by the Councell on the other side it must be granted that if the return here be not positive it is imperfect and in 5 H. 7. 28. it is said that an imperfect return is no return at all it is all one but if the return was so that was not much materiall for then it were
Lordship and all others but the parties themselves for I except them My Lord the great and mighty reason that they insisted upon was the inconveniences that might come to the subjects in their liberties if this Return should be good and this reason they inferred out of Records and Books of the Common Law which gives the liberty of the subjects I doe acknowledge that the liberty of the subject is just and that it is the inheritance of the subject but yet it is their inheritance secundum legem terrae My Lords they put many cases likewise to enforce it 1 2 Eliz. Dier fo 175. that the continuance of a Capias shall bee from Term to Term without Term betwixt because otherwise the party defendant may be kept too long in prison and 38 Ass pl. 22. Broke tit Imprisonment 100. that imprisonment is but to detaine the party till he have made fine to the King and therefore the King cannot justly detain him in prison after the fine tendred and 16 H. 6. monstrans de faictz 182. if the King command me to arrest a man and thereupon I doe arrest him he may have an action of false imprisonment or of trespasse against me though it be done in the Kings presence and 1 H. 7. 4. the discourse of Hussey where he saith that Sir John Markham delivered unto King Edward the fourth that hee should not arrest upon treason or felony any of his subjects because hee could not wrong his subjects by such arrest for they could not have remedy against him Prerogative Br. 139. These my Lord are the causes that they insisted upon for this purpose To the two first I shall give but one answer which is that the restraint in these two cases and most of the other cases before cited appears to be in the ordinary course of Judicature fit for Westminster Hall and not for the Kings Councell Table A writ of Capias was the first originall of it and therefore not to be applied to the cause of ours And for the other two cases the law presumeth that the active part of them is not so proper for the Majesty of a King who ever doth these things by his subordinate Officers But that the subject should not be committed by the King was never heard of for the King may commit any man at his pleasure but that is not our case but whether when the King hath committed one he must render a cause of that commitment that it may appear whether the party be bailable or not or else the party must be delivered The Book 9 E. 3. fol. 16. pl. 30. cited of a Cessavit the King having by Proclamation commanded that in the County of Northumberland no Cessavit should be brought c. during the war the tenant pleadeth this command and it was denyed him and he that notwithstanding was commanded to plead but the reason thereof was because the commandment thereof was given by E. 2. who being dead the commandment was determined The Book of Edward the third 4. fol. 16. is indeed where the commandment was given by the same King and that was likewise denyed him for the King cannot command your Lordship to any other Court of Justice to proceed otherwise then according to the Laws of this kingdome for it is part of your Lordships oath to judge according to the Law of the kingdome But my Lord there is a great difference between those legall commands and that absolute Potestas that a Soveraign hath by which a King commands but when I call it absoluta potestas I doe not mean that it is such a power as that a King may doe what he pleaseth for he hath rules to governe himself by as well as your Lordship who are subordinate Judges under him the difference is the King is the head of the same fountaine of Justice which your Lordship administers to all his subjects all Justice is derived from him and what he doth he doth not as a private person but as the Head of the Common-wealth as Iusticiarius Regni yea the very essence of Justice under God upon earth is in him and shall not wee generally not as subjects onely but as Lawyers who governe themselves by the rules of the Law submit to his command but make inquiries whether they be lawfull and say that the King doth not this or that in course of Justice If your Lordship sitting here shall proceed according to Justice who calleth your actions in question except in your own Judgements you see some errour in the proceeding and then you are subject to a writ of Errour But who shall call in question the Actions or the Justice of the King who is not to give any account for them as in this our case that he commits a subject and shews no cause for it The King commits and often shews no cause for it is sometimes generally Per specialâ— mandatum domini Regis sometimes Pro certis causis ipsum dominum Regem moventibus but if the King doe this shall it not bee good it is all one when the commitment is Per speciale mandatum domini Regis and when it is Pro certis causis ipsum dominum Regem moventibus and it is the same if the commitment be Certis de causis ipsum dominum Regem tangentibus And my Lord unlesse the Return to you doth open the secrets of the commitment your Lordship cannot judge whether the party ought by Law to be remaunded or delivered and therefore if the King allow and give warrant to those that make the Return that they shall expresse the cause of the commitment as many times he doth either for suspition of felony or making money or the like we shall shew your Lordship that in these causes this Court in his Jurisdiction were proper to try these criminall causes and your Lordship doth proceed in them although the commitment be Per speciale mandatum domini Regis which hath not secret in it in these causes for with the warrant he sendeth your Lordship the cause of the committing and when these warrants are made and brought into this Court your Lordship may proceed but if there be no cause expressed this Court hath always used to remaund them for it hath been used and it is to be intended a matter of State and that it is not ripe nor timely for it to appear My Lord the main fundamentall grounds of Arguments upon this case beginnes with Magna Charta from thence have grown states for explanation thereof severall Petitions of Parliament and Presidents for expedition I shall give answers to them all For Magna Charta in the 29 Chapter hath these words No Free-man shall be taken nor imprisoned or disseised of his freehold liberties nor free customes nor be outlawed or exiled nor any other way destroyed nor we will not passe upon him nor condemn him but by lawfull Judgement of his Peers or by the Law of the Realm My Lord this statute
signification of the command was given by Master Peck of Cliffords Inne but there the Warrant shews the cause of the commitment was for the peace and suspition of felony and therefore he was bailed The next was in 40 Eliz. Wendons Case but my Lord that commitment was out of the Star-chamber by an ordinary course Then they cited 8 Jac. Thomas Caesars Case he indeed was committed by Speciale mandatum domini Regis and brought his Habeas Corpus but the Roll saith remittitur and is that a Warrant for them to say that he was delivered Then Sir Thomas Vernons Case was cited and my Lord when we looked into the Records we found that he was committed for suspition of Treason and he was tried for it and discharged The next president was Sir Thomas Monsons Case I wonder that they did cite that for he was committed by the Lords of the Councell indeed but the ground of it was the suspition of the death of Sir Thomas Overbury and he was discharged again by the Lords of the Councell Certainly if you had known this you would not have named this as a president for you The next was Reynors Case he my Lord was one of the Gunpowder-Treason and yet there was a Warrant to discharge him too And therefore what these presidents are I shall submit to your Lordship I must confesse when they are cited together they make a great noise but when they are examined severally they prove nothing My Lord there is one more president of these that were cited here before your Lordship and I hope that one shall be as none It was mentioned to be Lawrence Browns Case 30 Eliz. I know not what it is but it is like to be of the same value as the rest Pro certis causis eos moventibus c. And thus my Lord I have gone through those presidents that were alledged here before your Lordship and now I will come to these presidents that were brought to me and not mentioned here The first was John Brownings Case in 21 H. 8. My Lord these presidents came not to me before Saturday last about candle-lighting and yesterday was no time fitting to search out presidents and how could I then search for this The next was William Rogers Case of the same time But the cause is expressed to be for suspition of felony which is a cause within the Jurisdiction of this Court Newports Case was the like in 4 5 Phil. Mar. and so was Thomas Lawrence Case 9 Eliz. and Edw. Harecourts Case 5 Eliz. which was for suspition of felony Richard Beckwith and not Barkwith as was cited for they have mistaken both names and matters was committed Per speciale mandatum domini Regis and the Record saith he was bailed But it was by reason of a letter from the Lords of the Councell The cause of Peter mans commitment in the 4 and 5 of Philip and Mary appears to be for suspition of felony and robbery For Reynors case it is the same with Beckwith and were both for one thing In the eighth of Henry the seventh one Rog Cherry was committed Per mandatum domini Regis and it was for a criminall case and he was afterwards indicted and acquited and delivered And there is another president thereof that saith he was afterwards arraigned condemned and hanged we have the Record of it And now my Lord I will shew some presidents on the other side where men have been committed by the commandement of the King and by the commandement of the Councell and have been delivered again by their directions And of this kinde there be two in the Tower that as they were committed by Warrant so by Warrants again for their bailing they were delivered the offences were against the Forest and for Murther In the fourth of Edward the third M. 4. Edmond de Newport in Essex was indicted for an offence committed by him in the Forest And M. 7. John Fox was likewise indicted for an offence by him done in the Forest and there be two Warrants to bail them M. 20. John Cobb was the like and there was a letter from the King Quod ponatur in Ballium usque ad proximam Assisam These were offences within Westminster primo and there be severall Warrants to bail them The Clark of this Court hath many Records by which it appeareth that many have been committed by the command of the King and of the Queen and of the Councell and brought their Habeas Corpus and the successe was that many of them were committed to the same Prisons and divers were committed to the Marshall of this Court the reason was for that many of them were to appear here their causes being triable here and it would have been a great trouble to send them back so farre to Prison as into the Countries and therefore they were delivered to the Marshall of the Kings Houshold again many had their Trials in this Court and some suffered and some were delivered by speciall command as they were committed by speciall command The number of these of this nature are infinite that have been in our times we have found some forty presidents of men committed out of the Chancery and by the High Commission for contempts and some by the Barons of the Exchequer and some in London that have been brought hither by Habeas corpus Of this I shall observe that in the 11 Iacobi there was a private Constitution in London made between the white Bakers that they might live one by another and the one not to invade the others liberties and for contempt against this Ordinance some were committed to prison as Thomas Heanning and Littlepage they had a Habeas corpus and the cause was shewn to be by reason of the said Constitution and thereupon the prisoners were sent back to London to abide the Order of the Mayor for my Lord this Court hath been ever carefull not to examine the Decrees of the Chancery or Court of Requests but have only looked whether the cause returned be within the jurisdiction of this Court nor have they called in question the by-laws and constitutions of London but they send them back to the court of Justice that committeth them And hath this Court been so carefull of these inferiour Courts to this which is the chief and when the King who is the head of Justice shall commit a man shall not they be as carefull to do the like Justice to them But when the King saith to them the commitment was by my warrant and commandment will you question this and whether this commitment be good or no I hope you will not And now my Lords touching some presidents which have been taken out of their own shewing I shall make it appear that as they have been committed by the King or Councel so they had warrants also to discharge them and they my Lords are two ancient Records the first is 7 H. 7. Rot. 6. the other Rot. 73.