Journal of the House of Lords: Volume 3, 1620-1628. Originally published by His Majesty's Stationery Office, London, 1767-1830.
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DIE Mercurii, 9 die Aprilis,
Domini tam Spirituales quam Temporales, quorum nomina subscribuntur, præsentes fuerunt:
Lady Purbeck's Petition for Privilege.
WHEREAS the Lady Viscountess Purbeck hath exhibited her Petition touching the Privilege of Parliament; for which Cause, amongst others, the Committee for Privileges, etc. met Yesterday in the Painted Chamber after Dinner; these Persons underwritten were this Day sworn, to make true Answer unto such Questions as shall be demanded of them, either by the House or the said Committee: videlicet, James Ingram, Warden of The Fleet, Thomas Mottershett, William Kember, William Webb, William Bembrick, Ph. May, Roberte Davys, Nich. Hunt, and Tho. Geres (post meridiem).
The Petition of Jo. Mayne was read, who was Ordered to be brought before the Lords, for counterfeiting a Protection from the Lord Mountague (prout per Ordinem 3 Apr.) And, by this Petition, he demanded Privilege, as Servant to the Lord Morley et Mount.
The Serjeant, being required to bring the said Jo. Mayne before their Lordships, declared, That, at the Apprehension of him by his Man (upon that Order of 3 April), he the said Jo. Mayne contemned the Order of this House, and offered him Violence; yet his Man at last apprehended him, and brought him to Town; and Mayne making an Excuse to see one George Pridee, an Acquaintance of his, the said Pridee and one John Waller do detain him out of his Custody. All which was justified by, the Serjeant's Man, upon his Oath, in the open House.
Ordered, The said John Mayne, George Predee, and Jo. Waller, to be forthwith brought before their Lordships, to answer the same. (Vide antea, 3 April.)
Report of the Conference for the Liberties of the Subject.
This Day the Lord President of the Council, the Earls of Hertforde and Devon, and the Lord Bishop of Lincoln, reported to the House the Conference with the Commons, 7 Aprilis, post meridiem, concerning the Subjects Liberties and Freedoms from Imprisonments.
The Lord President began, and his Lordship reported the Introduction to that Conference, made by Sir Dudley Dygges, in hæc verba: videlicet,
Lord President's Report.
"1. The Conference being upon Monday last with the Lower House. The Subject of all was about the Liberty of the Subjects. To set this forth, they employed Four Speakers. The First was Sir Dudley Dygges, a Man of Volubility and Elegancy of Speech. His Part was but the Induction. The Second was Mr. Littleton, a Grave and a Learned Lawyer, whose Part was to represent the Resolution of the House, and their Grounds whereupon they went. The Third was Mr. Selden, a great Antiquary and a pregnant Man; his Part was to shew the Law and Precedents in the Point. The Fourth was Sir Edward Cooke, that famous Reporter of the Law, whose Part was to shew the Reasons of all that the others had said; and that all which was said, was but in Affirmance of the Common Law. These were the Four Parts.
"Now to report the First Man, Sir Dudley; how his Words will come off from my Tongue, I cannot tell; but the Matter I shall tell you as I can.
"This Knight hoped to begin the Conference auspiciously, with an Observation out of the Holy Story. In the Days of good King Josiah, when the Land was purged of Idolatry, and the Great Men went about to repair the House of God, while Money was fought for, there was found a Book of the Law, which had been neglected. He was confident that we would as chearfully join with them in Acknowledgement of God's Blessing in our good King Josias, as they did thankfully remember your Lordships religious and truly honourable Initiation of them to the late Petition for cleansing the Land from Popish Abominations; and as then, so now, while they were seeking for Money, they found (he could not say a Book of our Law but) main and fundamental Points of Law, neglected and broken; and this occasioned their Desire of this Conference, wherein he was commanded to shew that the Laws of England were grounded upon Reason more ancient than Books, consisting much in unwritten Customs, yet so full of Justice and Equity as that your Lordships Noble Predecessors often defended them with a Nolumus mutare; Laws so ancient, as that the Saxons Days, notwithstanding the Ruins and Injury of Times, continued the same constantly. The Laws of Ethelred, First Christian King of Kent, of Ina, King of the West Saxons, of Alfred, the Great Monarch that united the Saxon Heptarchy, whose Laws are ut qui sunt sub uno Rege, sub una Lege regerentur. And though the Book of Lichfield, speaking of the troublesome Time of the Danes, say that then Jus sopitum erat in Regno, Leges et Consuetudines sopitæ sunt, prava Voluntas, Vis et Violentia, magis regnabant quam Judicia vel Justicia; yet the good King Edward, called The Confessor, did awaken these Laws; and, as the old Words are, excitatas reparavit, reparatas decoravit, decoratas confirmavit; which confirmavit shews that St. Edward received those Laws, did not give them. And ever since Him, William the Conqueror and His Successors, Kings of England, are sworn to them. Now with these Laws of our Saxon Kings, the Modern Laws do concur. They, as we at this Day, had their Court Barons, their Court Leets, their Sheriffs Tornes, by which, as Tacitus faith of the Germans their Ancestors, Jura reddebant per Pagos et Vicos. They had their Parliaments; their Laws were published cum Consensu Prælatorum, Magnatum, et totius Communitatis, or, as another faith, cum Consilio Prælalatorum, Nobilium, et sapientum Laicorum. To this, as he said, might be added somewhat out of Glanvile, who wrote in Henry the Second's Time; Bracton, who wrote in Henry the Third's Time; but he would only add this out of Fortescue, Chancellor to Henry the Sixth, who says of England, Regnum istud in omnibus Nationum et Regum Temporibus, iisdem quibus nunc regitur Consuetudinibus continuo regebatur (and this, my Lords, is a brave Glory to our Nation, that, in such Revolution of Kings and Times, the same Laws should continue). But he would say of our Common Law, as the Poet said of Fame;
"Ingreditur solo, et caput inter nubila condit.
"This Cloudy Part being his, he would now hasten to open Way for your Lordships to hear other Arguments, that go on surer Grounds. Here he made his Passage to another Point. It is, said he, an undoubted and fundamental Point of this so ancient a Law of England, That the Subjects have a true Property in their Goods, Lands, and Possessions: The Law preserves as sacred this Meum and Tuum, which is the Nurse of Industry, and Mother of Courage; for, if no Property, no Care of Defence. Without this Meum and Tuum, there can be neither Law nor Justice in a Kingdom; for this is the proper Object of both. It is this that hath been lately not a little prejudiced by some Pressures, the now Grievances, because they have been pursued by Imprisonments, contrary to the Laws, and the general Franchise of the Land; which hath been the more heavy, in that when Liberty and Redress thereof was sought in a legal Way, Success failed, which enforced the Commons to inquire into the Acts of Parliament. But the Precedents and Cases, which concern it, he would commend to other Learned Gentlemen, whose weighty Arguments, he hoped, would leave no Root in your Lordships Memories of his Errors and Infirmities, who was your humblest Servant. And thus, humbly thanking your Lordships for your honourable Favour, and patient Attention, he ended; and so do I, and leave the other Parts to better Hands."
2. The Earl of Hertford reported what was delivered by Mr. Littleton at the said Conference, in hæc verba: videlicet,
The Earl of Hertford's Report of the Conference, touching the Liberty of the Subject.
"My Lords, Upon the Occasions delivered by the Gentleman your Lordships have heard, the Commons have taken into their serious Considerations the Matter of Personal Liberty; and, after long Debate thereof, on divers Days, as well by solemn Arguments as single Propositions of Doubts and Answers, to the End no Scruple might remain in any Man's Breast unsatisfied, they have, upon a full Search and clear Understanding of all Things pertinent to the Question, unanimously declared, That no Freeman ought to be committed or detained in Prison, or otherwise restrained. by the Command of the King, or the Privy Council, or any other, unless some Cause of the Commitment, Detainer, or Restraint, be expressed, for which by Law he ought to be committed, detained, or restrained: And they have sent me, with others of their Members, to represent unto your Lordships the true Ground of such their Resolution, and have charged me particularly (leaving the Reasons of Law, and Precedents, for others) to give your Lordships Satisfaction, that this Liberty is established and confirmed by the whole State, the King, the Lords Spiritual and Temporal, and the Commons, by several Acts of Parliament; the Authority whereof is so great, that it can receive no Answer, save by Interpretation, or Repeal by future Statutes; and those that I shall mind your Lordships of, are so direct to the Point, that they can bear 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 Year of King John, and renewed in the Ninth Year of King Henry the Third, and since confirmed in Parliament above Thirty Times. The Words are thus: Cap. 29. Nullus liber Homo capiatur, vel imprisonetur, aut disseisietur de libero Tenemento suo, vel Libertatibus, vel liberis Consuctudinibus suis, aut utlagetur, aut exuletur, aut aliquo modo destruatur; nec super eum ibimus, nec super eum mittemus, nisi per legale Judicium Parium suorum, vel per Legem Terra. These Words, Nullus liber Homo, are express enough. Yet it is remarkable that Mathewe Paris, an Author of special Credit, doth observe, Fol. 432, That the Charter of 9° H. III, was the very same as that of 17° Johannis (in nullo dissimiles, are his Words); and that of King John he setteth down verbatim, Fol. 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 betwixt 9 H. III, and 28 E. I, 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 Freeman shall be taken or imprisoned but by the lawful Judgement of his Peers; which is, by Jury, Peers for Peers, ordinary Jurors for others (who are their Peers), 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 Process of the Law (and not the Law of the Land generally); otherwise it would comprehend Bondmen (whom we call Villains), who are excluded by the Word liber, for the general Law of the Land doth allow their Lords to imprison them at Pleasure without Cause; wherein they only differ from the Freemen in respect of their Persons, who cannot be imprisoned without a Cause: And that this is the true Understanding of these Words, per Legem Terræ, will more plainly appear by divers other Statutes that I shall use, which do expound the same accordingly. And though the Words of this Grand Charter be spoken in the Third Person, yet they are not to be understood of Suits betwixt Party and Party, at least not of them alone, but even of the King's Suits against His Subjects, as will appear by the Occasion of the getting of that Charter, which was by reason of the Differences betwixt those Kings and Their People, and therefore properly to be applied unto Their Power over them, and not to ordinary Questions betwixt Subject and Subject; and the Words, per legale Judicium Parium suorum, immediately preceding the others of per Legem Terræ, are meant of Trials at the King's Suit, and not at the Prosecution of a Subject. And therefore, if a Peer of the Realm be arraigned at the Suit of the King upon an Indictment of Murder, he shall be tried by his Peers (that is, Nobles). But if he be appealed of Murder by a Subject, his Trial shall be by an ordinary Jury of Twelve Freeholders, as appeareth in 10 E. IV. 6.; 33 H. VIII. Brooke, Title Trials, 142; Stamford, Pleas of the Crown, Lib. iii. Cap. 1. Fol. 152. And in 10 E. IV. it is said, Such is the Meaning of Magna Charta. By the same Reason, therefore, as by Judicium Parium suorum extends to the King's Suit, so shall these Words, per Legem Terræ. And in 8 E. II. Rot. Parliam. Membrana 7. there is a Petition, That a Writ under the Privy Seal went to the Guardians of the Great Seal, to cause Lands to be seized into the King's Hands, by Force of which there went a Writ out of the Chancery to the Escheator to seize, against the Form of the Grand Charter, That the King nor His Ministers shall out no Man of 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 Personal Liberty till the Time of King Edward the Third, which was estsoons resented by the Subject; for in 5 E. III. Cap. 9. it is ordained in these Words, It is Enacted, That no Man from henceforth shall be attached by any Accusation, nor forejudged of Life or Limb, nor his Lands, Tenements, Goods, nor Chattels seized into the King's Hands, against the Form of the Great Charter, and the Law of the Land. 25 E. III. Cap. 4. is more full, and doth expound the Words of the Grand Charter, and is thus: Whereas it is contained in the Great Charter of the Franchises of England, that none shall be imprisoned, nor put out of his Freehold, nor of his Franchise, nor Free Custom, unless it be by the Law of the Land; it is accorded, assented, and stablished, That from henceforth none shall be taken by Petition or Suggestion made to our Lord the King or to His Council, unless it be by Indictment, or Presentment of His good and lawful People of the same Neighbourhood where such Deeds be done, in due Manner, or by Process made by Writ Original at the Common Law; nor that none be out of his Franchises, nor of his Freehold, unless he be duly brought in Answer, and fore-judged of the same by the Course of Law; and if any Thing be done against the same, it shall be redressed, and holden for none. Out of this Statute I observe, that what in Magna Charta, and the Preamble of this Statute, is termed by the Law of the Land is, in the Body of this Act, expounded to be by Process made by Writ Original at the Common Law, which is a plain Interpretation of the Words Law of the Land in the Grand Charter. And I note that this Law was made upon the Commitment of divers to The Tower, no Man yet knoweth for what.
"28 E. III. Cap. III. is yet more direct (this Liberty being followed with fresh Suit by the Subject), where the Words are not many, but very full and significant: That no Man, of what Estate or Condition that he be, shall be put out of his Land, nor Tenement, nor taken, nor imprisoned, nor disherited, nor put to Death, without he be brought in Answer by due Process of the Law. Here, your Lordships see, the usual Words of the Law of the Land are rendered, by due Process of the Law.
"36 E. III. Rot. Parliam. Numero 9°, 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 Forest, and the other Statutes made in His Time, and in the Time of His Progenitors, for the Profit of Him and His Commonalty, be well and firmly kept, and put in due Execution, without putting Disturbance, or making Arrest, contrary to them, by special Command, or in other Manner.
"The Answer to the Petition, which makes it an Act of Parliament, is, Our Lord the King, by Assent of the Prelates, Dukes, Earls, Barons, and the Commonalty, hath ordained and established, That the said Charters and Statutes be 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 be made contrary to the Statutes by special 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 Books that are extant.
"36 E. III. Rot. Parliament. N° 20. 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 special Command, without Indictment, or other due Process, to be made by the Law. And oftentimes it hath been, and yet is, that many are hindred, taken and imprisoned, without Indictment, or other Process made by the Law upon them, as well of Things done out of the Forest of the King, as for other Things, That it would please our said Lord to command those to be delivered, which are so taken by special Command against the Form of the Charters and Statutes aforesaid. The Answer is, The King is pleased, that, if any Man find himself grieved, that he come and make his Complaint, and Right shall be done unto him.
"37 E. III. Cap. 18. agreeth in Substance, when it faith, Though that it be contained in the Great Charter, that no Man be taken, nor imprisoned, nor put out of his Freehold, without Process of the Law, nevertheless divers People make false Suggestion to the King Himself, as well for Malice as otherwise, whereof the King is often grieved, and divers of the Realm put in Damage, against the Form of the same Charter; wherefore it is ordained, That all they which make Suggestions, shall be sent with the same Suggestions before the Chancellor, Treasurer, and His Grand Council; and that they there find Surety to pursue their Suggestions, and incur the same Pain that the other should have had if he were attainted, in Case that this Suggestion be found evil; and that then Process of the Law be made against them without being taken and imprisoned, against the Form of the said Charter and other Statutes." Here the Law of the Land in the Grand Charter is explained to be without Process of the Law.
"42 E. III. Cap. 3. At the Request of the Commons, by their Petitions put forth in this Parliament, to eschew Mischief and Damage done to divers of His Commons by false Accusers, which oftentimes have made their Accusation more for Revenge and singular Benefit, than for the Profit of the King, or of His People, which accused Persons some have been taken, and sometimes caused to come before the King's Council, by Writ and otherwise, upon grievous Pain against the Law; it is assented and awarded, for the good Governance of the Commons, That no Man be put to answer without Presentment before Justices, or Matter of Record, or by due Process and Writ Original, according to the old Law of the Land; and if any Thing from henceforth be done to the contrary, it shall be void in the Law, and holden for Error.
"But this is better in the Parliament Roll, where the Petition and Answer (which make the Act) are set down at large.
"42 E. III. Rot. Parliam. Numero 12. 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 Gain, than for the Profit of the King or His People; and those that are accused by them, some have been taken, and others are made to come before the King's Council, by Writ or other Commandment of the King, upon grievous Pains, contrary to the Law; That it would please our Lord the King and His good Council, for the just Government of His People, to ordain, that if hereafter any Accuser purpose any Matter for the Profit of the King, that the same Matter be sent to the Justices of the one Bench or the other, or the Assizes, to be enquired or determined according to the Law; and if it concern the Accuser or Party, that he take his Suit at the Common Law; and that no Man be put to answer without Presentment before Justices, or Matter of Record, or by due Process and Original Writ, according to the ancient Law of the Land; and if any Thing henceforward be done to the contrary, that it be void in Law, and held for Error.
"Here, by due Process and Original Writ, according to the ancient Law of the Land, is meant the same Thing as per Legem Terræ in Magna Charta, and the Abuse was, that they were put to answer by the Commandment of the King. The King's Answer is, Because that this Article is an Article of the Grand Charter, the King will that this be done as the Petition doth demand. By this appeareth that per Legem Terræ in Magna Charta is meant by due Process of Law.
"Thus your Lordships have heard Acts of Parliament in the Point. But the Statute of Westm. the First, Cap. 15. is urged to disprove this Opinion, where it is expressly said, That a Man is not replevishable 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 appear, and the Answer be better understood, I shall read the Words of the Statute, which are thus: And forasmuch as Sheriffs and others, which have taken and kept in Prison Persons detected of Felony, and oftentimes have let out by Replevine such as were not replevishable, and have kept in Prison such as were replevishable, because they would gain of the one Party, and grieve the other; and forasmuch as, before this Time, it was not certainly determined what Persons were replevishable and what not, but only those that were taken for the Death of a Man, or by the Commandment of the King or of His Justices, or for the Forest; it is provided, and by the King commanded, That such Prisoners as before were outlawed, and they which have abjured the Realm, Provers, and such as be taken with the Manner, and those which have broken the King's Prison, Thieves openly defamed and known, and such as be appealed by Provers so long as the Provers be living (if they be not of good Name), and such as be taken for burning of Houses feloniously done, or for false Money, or for counterseiting the King's Seal, or Persons excommunicate taken at the Request of the Bishop, or for manifest Offences, or for Treason touching the King Himself, shall be in no wise replevishable by the Common Writ, nor without Writ; but such as be indicted of Larceny by Inquest taken before the Sheriffs or Bailiffs by their Office, or of light Suspicion, or for Petty Larceny that amounteth not above the Value of 12d. (if they were not guilty of some other Larceny aforetime), or guilty of Receipt of Felons, or of Commandment, or Force, or of Aid in Felony done, or guilty of some other Trespass for which one ought not to lose Life nor Member, and a Man appealed by a Prover after the Death of the Prover (if he be no common Thief, nor defamed), shall from henceforth be let out by sufficient Surety, whereof the Sheriff will be answerable, and that without giving ought of their Goods; and if the Sheriff or any other let any go at large by Surety that is not replevishable, if he be Sheriff or Constable, or any other Bailiff of Fee which hath keeping of Prisons, and thereof be attainted, he shall lose his Fees and Office for ever; and if the UnderSheriff, Constable, or Bailiff of such as hath Fee for keeping of Prisons, do it contrary to the Will of his Lord, or any other Bailiff being not of Fee, they shall have Three Years Imprisonment, and make a Fine at the King's Pleasure; and if any withhold Prisoners replevishable after they have offered sufficient Surety, he shall pay a grievous Amerciament to the King; and if he take any Reward for the Deliverance of such, he shall pay double to the Prisoner, and also shall be in the grievous Mercy of the King.
"The Answer: It must be acknowledged that a Man taken by the Command of the King is not replevishable, for so are the express Words of this Statute: But this maketh nothing against the Declaration of the Commons, for they say not that the Sheriff may replevy such a Man by Sureties, soilicet, per Manucaptores, but that he is bailable by the King's Courts of Justice; for the better apprehending whereof it is to be known, that there is a Difference betwixt replevishable, which is always by the Sheriff upon Pledges or Sureties given, and bailable, which is by a Court of Record, where the Prisoner is delivered to his Bail; and they are his Gaolers, and may imprison him, and shall suffer for him Body for Body, as appeareth 33 et 36 E. III. in the Title of Mainprize, Pl. 12, 13. where the Difference between Bail and Mainprize is expressly taken. And if the Words of the Statute themselves be observed, it will appear plainly that it extends to the Sheriff and other Inferior Officers, and doth not bind the Hands of the Judges. First, the Preamble (which is the Key that openeth the Entrance into the Meaning of the Makers of the Law), is, Forasmuch as Sheriffs and others which have taken and kept in Prison Persons detected of Felony; out of these Words I observe that it nominateth Sheriffs; and then if the Justices should be included, they must be comprehended under the general Word (other), which doth not use to extend to those of an Higher Rank, but to Inferiors; for the best, by all Course, is first to be named. And therefore, if a Man bring a Writ of Customs and Services, and name Rents and other Things, the general shall not include Homage, which is a Personal Service, and of an higher Nature, but it shall extend to ordinary Annual Services, 31° E. I. in the Title of Droit 67. So the Statute of 13° Eliz. Cap. 10. which beginneth with Colleges, Deans and Chapters, Parsons, Vicars, and concludes with these Words (and others), having Spiritual Promotione, shall not comprehend Bishops, that are of an higher Degree, as appears in the Archbishop of Canterburie's Case, reported by Sir Edward Cooke, Lib. ii. Fol. 46. b.
Rahar, Sheriff of Warwick and Leicester's Case.
"And thus much is explained in this very Statute, towards the End, when it doth enumerate those were meant by the Word others, namely Under-sheriffs, Constables, Bailiffs. Again, the Words are, Sheriffs and others which have taken and kept in Prison. Now every Man knoweth that Judges do neither arrest nor keep Men in Prison; that is the Office of the Sheriffs, and other Inferior Ministers. Therefore this Statute meant only such, and not Judges. The Words are further, That they let out by Replevin such as were not repleviable: This is the proper Language for a Sheriff, nay more express afterwards in the Body of the Statute, That such as are there mentioned shall in no wise be replevishable by the Common Writ (which is the Homine replegiando), and is directed to the Sheriff, nor without Writ, which is by the Sheriff ex officio. But that which receives no Answer is this, that the Command of the Justices (who derive their Authority from the Crown) is there equaled, as to this Purpose, with the Command of the King; and therefore, by all reasonable Construction, it must needs relate to Officers that are subordinate to both, as Sheriff, Under-sheriff, Bailiffs, Constables, and the like; and it were an harsh Exposition to say that the Justices might not discharge their own Command, and yet that Reason would conclude as much. And that this was meant of the Sheriffs and other Ministers of Justice, appeareth by the Recital of 27 E. I. Cap. 13. de Finibus levatis, and likewise by Fleta, a MS. so called because the Author lay in The Fleet when he made the Book: For he, Lib. II. Cap. 52. in his Chapter of Tournes and Views of the Hundred Courts in the Country, setteth down the Articles of the Charge that are there to be enquired of; amongst which one of them is, de Replegiabilibus injuste detentis, et Irreplegiabilibus dimissis, which cannot be meant of not bailing by the Justices; for what have the Inferior Courts in the Country to do with the Acts of the Justices? And, to make it more plain, he setteth down in this Chapter (that concerns Sheriffs only), the very Statute of Westm. I. Cap. 15. which he translates verbatim out of the French into Latin, save that he renders taken by the Command of the Justices, thus, per Judicium Justiciariorum. And his Preface to the Statute plainly sheweth, that he understood it of Replevy by Sheriffs; for he faith, qui debent per Plegios dimitti, qui non, declarat hoc Statutum; et per Plegios is before the Sheriffs: But for the direct Authority, it is the Opinion of Newton, the Chief Justice in 22° H. VI. 46, where his Words are these, It cannot be intended that the Sheriff did suffer him to go at large by Mainprize: For where one is taken by the Writ of the King, or the Commandment of the King, he is irreplevishable; but in such Cases his Friends may come to the Justices for him, if he be arrested, and purchase a Supersedeas. This Judge concludes, that the Sheriff cannot deliver him that is taken by the Commandment of the King, for that he is irreplevisable, which is the very Word of the Statute; but, faith he, his Friends may come to the Justices, and purchase a Supersedeas; so he declares the very Question, that the Sheriff had no Power, but that the Justices had Power, to deliver him that is committed by the King's Command: And both the ancient and modern Practice manifests as much; for he that is taken for the Death of a Man, or for the Forest, is not replevishable by the Sheriff; yet they are ordinarily bailed by the Justices, and were, by the King's Writ, directed to the Sheriff in the Times of E. I, and E. II, as appears in the Close Rolls, which could not be done if they were not bailable. And it is every Day's Experience, that the Justices of the King's Bench do bail for Murder, and for Offences done in the Forest, which they could not do if the Word irreplevishable, in Westm. I, were meant of the Justices as well as the Sheriffs. For the Authorities that have been offered to prove the contrary, they are in Number Three. The First is 21 E. I. Rot. 2. in Scaccario, which also is in the Book of Pleas in Parliament at The Tower, Fol. 44. It is not an Act of Parliament, but a Resolution in Parliament upon an Action there brought, which was usual in those Times; and the Case is, that Stephen Rabar, the Sheriff of the Counties of Leicester and Warwicke, was questioned, for that he had let go at large, by Sureties, amongst others, one William, the Son of Walter le Parson, against the Will and Command of the King; (fn. 1) whereas the King had commanded him, by Letters under His Privy Seal, that he should do no Favour to any Man that was committed by the Command of the Earl of Warwicke, as that Man was; whereunto the Sheriff answered, That he did it at the Request of some of the King's Houshold, upon their Letters; and because the Sheriff did acknowledge the Receipt of the King's Letter, thereupon he was committed to Prison, according to the Form of the Statute. To this I answer, That the Sheriff was justly punished, for that he is expressly bound by the Statute of Westm. I, which was agreed from the Beginning; but this is no Proof that the Judges had no Power to bail this Man. The next Authority is 33 H. VI, in the Court of Common Pleas, Fol. 28. N° 29. where Robert Poyngs, Esquire, was brought to the Bar, upon a Capias; and it was returned, that he was committed per Duos de Concilio (I believe it is misprinted for Dnos, id est, Dominos de Concilio, which is strongest against what I maintain), pro diversis Causis Regem tangentibus. And he made an Attorney there in an Action, whence is inferred that the Return was good, and the Party could not be delivered. To this the Answer is plain. First, that no Opinion is delivered in that Book one Way or other, upon the Return; neither is there any Testimony whether he were delivered or bailed, or not: Secondly, it appears expressly that he was brought thither to be charged in an Action of Debt, at another Man's Suit, and no Desire of his own to be delivered or bailed; and then, if he were remanded, it is no Way material to the Question in Hand; but that which is most relied upon, is the Opinion of Stamford, in his Book of the Pleas of the Crown, Lib. II. Cap. 18. Fol. 72, 73, in his Chapter of Mainprize, where he reciteth the Statute of Westm. I. Cap. 15. and then faith thus: By this Statute it appears, that in Four Causes at the Common Law a Man was not replevishable; (to wit) those that were taken for the Death of a Man, by the Command of the King, or of His Justices, or for the Forest: Thus far he is most right. Then he goeth on, and faith: As to the Command of the King, that is understood of the Command by His own Mouth, or His Council, which is incorporated unto Him, and speak with His Mouth; or otherwise every Writ of Capias to take a Man (which is the King's Command) would be as much; and as to the Command of the Justices, that is meant their absolute Commandment: For if it be their ordinary Commandment, he is replevishable by the Sheriff, if it be not in some of the Causes prohibited by the Statute. The Answer that I give unto this is, That Stamforde hath said nothing whether a Man may be committed without Cause by the King's Command, or whether the Judges ought not to bail him in such Cause; but only that such a one is not replevishable, which is agreed, for that belongs to the Sheriff; and because no Man should think he meant any such Thing, he concludes his whole Sentence touching the Command of the King and the Justices, that one committed by the Justices ordinary Command is replevishable by the Sheriff; so either he meant all by the Sheriff, or at least it appears not that he meant that a Man committed by the King, or the Privy Council, without Cause, is not bailable by the Justices; and then he hath given no Opinion in this Cause. What he would have said if he had been asked the Question, cannot be known; neither doth it appear by any Thing he hath said, that he meant any such Thing as would be inferred out of him.
"And now, my Lords, I have performed the Command of the Commons; and, as I conceive, shall leave their Declaration of Personal Liberty an ancient and undoubted Truth, fortified with Seven Acts of Parliament, and not opposed by any Statute or Authority of Law whatsoever.
"And then he delivered such Testimonies as he used, which were not printed; and they were Copies of the Acts of Parliament 36 et 42 E. III, the Bayles upon the Close Rolls, and the Record of 21 E. I, of the Sheriff of Warwickshire."
3. The Earl of Devon reported what Mr. John Selden delivered at the said Conference; and his Lordship began with this Preamble: videlicet,
E. of Devon's Report of the Conference touching the Liberty of the Subject.
"In this long and weighty Speech of the Third Gentleman who spake at the Committee, which I am to report unto your Lordships, I shall humbly desire your Favour to have Recourse to my Papers; for I dare not commit a Business of this Weight and Length to my Memory, because I would be loth to wrong the House of Commons who sent him, your Lordships who are to hear it, the Gentleman who spake, nor myself who am to report; and, before I have done, your Lordships will believe that I dissembled not Yesterday, when I said it was impossible for me to do it then."
And his Lordships proceeded in these Words: videlicet,
"Your Lordships have heard, from the Gentleman that last spake, a great Part of the Grounds upon which the House of Commons, after mature Deliberation, proceeded to that clear Resolution, touching the Liberty of their Persons; the many Acts of Parliament (which are the written Laws of the Land, and are expressly in the Point), have been read and opened, and such Objections as have been by some made unto them; and some other Objections also made out of another Act of Parliament have been cleared and answered. It may seem now, perhaps, my Lords, that little remains needful to be further added, for the Inforcement and Maintenance of so fundamental and established a Right and Liberty, belonging to every Freeman of the Kingdom. But, in the Examination of Questions of Law or Right, besides the Laws or Acts of Parliament that ought chiefly to regulate and direct every Man's Judgement, whatsoever hath been put in Practice to the contrary, there are commonly used also former Judgements, or Precedents, and indeed have been so used sometimes, that the Weight of Reason, of Law, and of Acts of Parliament, have been laid by, and Resolutions have been made, and that in this very Point, only upon the Interpretation and Apprehension of Precedents. But Precedents, my Lords, are good Media or Proofs, of Illustration or Confirmation, when they agree with the express Law; but they can never be Proof enough to overthrow any One Law, much less Seven Acts of Parliament, as the Number of them is for this Point.
"The House of Commons, therefore, taking into Consideration, that in this Question (being of so high a Nature that never any exceeded it in any Court of Justice whatsoever), all the several Ways of just Examination of the Truth should be used, have also most carefully informed themselves of all former Judgements, or Precedents, concerning this great Point either Way; and have been no less careful herein of the due Preservation of His Majesty's just Prerogative than of their own Rights: The Precedents here are of Two Kinds, either merely Matter of Record, or else the former Resolutions of Judges, after solemn Debate of the Point. This Part, that concerns Precedents, the House of Commons have commanded me to represent unto your Lordships; which I shall do as briefly as I may, so I do it also faithfully and perspicuously cuously. To that End, my Lords, before I come to the Particulars of any of these Precedents, I shall first remember to your Lordships that which will serve as a general Key for the Opening and true Apprehension of all them of Record, without which Key no Man, unless he be versed in the Entries and Course of the King's Bench, can possibly understand them.
"In all Cases, my Lords, where any Right or Liberty belongs to the Subject by any positive Law, written or unwritten, if there were not also a Remedy by Law for the enjoying or regaining of this Right or Liberty, when it is violated or taken from him, the positive Law were most vain, and to no Purpose; as it were to no Purpose for any Man to have Right in any Land, or other Inheritance, if there were not a known Remedy, 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 Liberty of the Person, if there were not a Remedy in the Law for regaining it when it is restrained, it were to no Purpose to speak of Laws that ordain it should not be restrained. Therefore, in this Case also, I shall first observe the Remedy that every Freeman is to use for the regaining of his Liberty, when he is against Law imprisoned, that so, upon the legal Course and Form to be held in using that Remedy, the Precedents or Judgements upon it (for all Precedents of Records arise out of this Remedy) may be easily understood.
"There are, in the Law, divers Remedies for Enlargement of a Freeman imprisoned, as the Writ of Odio et Atia, and of Homine replegiando, besides the common and most known Writ of Habeas Corpus, or Corpus cum Causa, as it is called also. The First Two are Writs to be directed to the Sheriff of the County, and lie only in some particular Cases, with which it would be untimely for me to trouble your Lordships, because they concern not that which is committed to my Charge. But that Writ of Habeas Corpus, or Corpus cum Causa, is the chiefest Remedy in Law for any Man that is imprisoned, and the only Remedy in Law for him that is imprisoned by the special Command of the King, or of the Lords of the Council, without shewing Cause of the Commitment. Neither is there in the Law any such Thing, nor ever was there Mention of any such Thing in the Laws of this Land, as a Petition of Right to be used in such Cases for Liberty of the Person; nor is there any other legal Course to be taken for Enlargement in such Cases, howsoever the contrary hath, upon no Ground or Colour of Law, been pretended. Now, my Lords, if any Man be so imprisoned, by any such Command or otherwise, in any Prison wheresoever through England, and desire, either by himself, or by any other in his Behalf, this Writ of Habeas Corpus for the Purpose) in the Court of King's Bench, the Writ is to be granted to him, and ought not to be denied him, no otherwise than any ordinary Original Writ in the Chancery, or other Common Process of Law, may be denied; which, among other Things, the House of Commons hath resolved also upon mature Deliberation; and I was commanded to let your Lordships know so much. This Writ is to be directed to the Keeper of the Prison in whose Custody the Prisoner remains, commanding him that, at a certain Day, he bring in the Body of the Prisoner, ad subjiciendum et recipiendum juxta quod Curia consideraverit, una cum Causa Captionis et Detentionis, and oft-times una cum Causa Detentionis only, Captionis being omitted. The Keeper of the Prison thereupon returns by what Warrant he detains the Prisoner, and, with his Return filed to his Writ, brings the Prisoner to the Bar at the Time appointed. When the Return 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 are to suppose the Return to be true, whatsoever it be; for, if it be false, the Party may have his Remedy, by Action on the Case, against the Gaoler that brings him. Now my Lords, when the Prisoner comes thus to the Bar, if he desire to be bailed, and that the Court, upon View of the Return think him in Law to be bailed, then he is always first taken from the Keeper of the Prison that brings him, and committed to the Marshal of the King's Bench, and afterwards bailed; and the Entry perpetually is committitur Marescallo, et postea traditur in Ballium, for the Court never bails any Man until he first become their own Prisoner, and be in Custodia Marescalli of that Court. But if, upon the Return of the Habeas Corpus, it appear to the Court that the Prisoner ought not to be bailed, nor discharged from the Prison whence he is brought, then he is remanded, or sent back again, there to continue until, by Course of Law, he may be delivered; and the Entry in such Case is remittitur quousque secundum Legem deliberatus fuerit, or remittitur quousque, etc. which is all one, and is the highest Award or Judgement that ever was or can be given upon a Habcas Corpus. But, if the Judges doubt only whether in Law they ought to take him from the Prison whence he came, or give Day to the Keeper of the Prison to amend his Return (as oft they do), then they remand him only during the Time of their Debate, or until the Keeper of the Prison have amended his Return; and the Entry upon that is remittitur only, or remittitur Prisonæ prædictæ, without any more. And so remittitur generally is of far less Moment in the Award upon the Habeas Corpus, than remittitur quousque, etc. howsoever vulgar Opinion, raised out of the Flame of the late Judgement, be to the contrary. All these Things are of most known and constant Use in the Court of King's Bench, as it cannot be doubted but that your Lordships will easily know also from the Grave and Learned my Lords the Judges. These Two Courses, the one of the Entry of committitur Marescallo, et postca traditur in Ballium, and the other of remittitur quousque, and remittitur generally, or remittitur Prisonæ prædictæ, together with the Nature of the Habeas Corpus, being thus stated; it will be easier for me to open, and for your Lordships to observe, whatsoever shall occur to this Purpose in the Precedents of Record, when I come to them in particular.
"But, before I come to the Precedents, I am to let your Lordships know the Resolution of the House of Commons, touching the Enlargement of any Man committed by the Command of the King, or the Privy Council, or otherwise, without Cause expressed at the Commitment. It is thus: That, if a Freeman be committed or detained in Prison, or otherwise restrained, by the Commandment of the King, the Privy Council, or any other; and no Cause of such Commitment, Detainer, or Restraint, be expressed, for which by Law he ought to be committed, detained, or restrained; and the same be returned upon an Habeas Corpus granted for the Party, that then he ought to be delivered or bailed. This Resolution, as it is grounded upon those Acts of Parliament already cited, and upon the Reason of the Law of the Land (which is committed to the Charge of another, and anon to be also opened to you), is strengthened also by many Precedents of Record. But the Precedents of Record that concern this Point are of Two Kinds (for the House of Commons hath fully informed itself of such as concern it either Way): The First is of such as shew expressly that Persons committed by the Command of the King, or of His Privy Council, without other Cause shewed, have been enlarged upon Bail when they prayed it, whence it appears clearly that by Law they were bailable, and so by Habeas Corpus to be set at Liberty; for, although they ought not to have been committed without Cause shewed of their Commitment, yet it is true that the Reverend Judges of this Land, in former Ages, did give such a Respect to such Commitments by the Command of the King, or the Lords of the Council (as also to the Commitments sometimes of Inferior Persons), that, upon the Habeas Corpus, they rarely used absolutely to discharge the Prisoners instantly, but to enlarge them upon Bail, which sufficiently secures and preserves the Liberty of the Subject, according to the Laws that your Lordships have already heard; nor, in any of these Cases, is there any Difference made between such Commitments by the King, or Commitments by the Lords of the Council that are incorporated with Him. The Second Kind of Precedents of Record are such as have been pretended to prove the Law to be contrary, and that Persons so committed ought not to be set at Liberty upon Bail, and are in the Nature of Objections out of Record. I shall deliver them summarily to your Lordships with all Faith, as also the true Copies of them, out of which it shall appear clearly to your Lordships that of those of the First Kind, there are no less than Twelve most full and directly in the Point, to prove that Persons so committed ought to be delivered upon Bail, and that among those of the other Kind, there is not so much as One that proves at all any Thing to be contrary.
"I shall First, my Lords, go through them of the First Kind, and so observe them to your Lordships, that such Scruples as have been made upon them by some that have excepted against them shall be cleared also, according as I shall open them severally.
Precedents produced to prove, that Persons committed by the King or Privy Council, without other Cause shewed, have been bailed, when they prayed it. John de Bildeiton's Case.
"The First of this First Kind is of Edward the Third's Time. It is in Pasch. 18 E. III. Rot. 33. Rex. The Case was thus. King Edward the Third had committed by Writ, and that under His Great Seal (as most of the King's Commands in those Times were), one John de Bildeston, a Clergyman, to Prison to The Tower, without any Cause shewed of the Commitment. The Lieutenant of The Tower is commanded to bring him into the King's Bench, where he is committed to the Marshal. But the Court asks of the Lieutenant, if there were any other Cause to keep this Bildeston in Prison, besides that Commitment of the King? He answers, No. Whereupon (as the Roll says) quia videtur Curiæ Breve prædictum (that is the King's Command) sufficientem non esse Causam prædictum Johannem de Bildeston in Prisona Marescalli Regis hic detinendi, idem Johannes dimittitur, per Manucaptionem Willielmi de Wakefeild, and some others; where the Judgement of the Court is fully declared in the very Point.
John Parker's Case.
"The Second of this First Kind of Precedents of Record is in the Time of 22d of Henry the Eighth. One John Parker was committed to the Sheriffs of London, pro Securitatc Pacis, at the Suit of one Brinton, ac pro Suspicione Feloniæ, committed by him at Crowall in Gloucestershire, ac per Mandatum Domini Regis. He is committed to the Marshal of the King's Bench, et postea isto eodem Termino traditur in Ballium. Here were other Causes of the Commitment, but plainly one was a Command of the King, signified to the Sheriffs of London; but some have interpreted that as if the Commitment here had been for Suspicion of Felony, by Command of the King, in which Case it is agreed of all Hands that the Prisoner is bailable; but no Man that understands Grammar can think so of this Precedent, that observes the Context of it, wherein most plainly ac per Mandatum Domini Regis hath no Reference to any other Cause whatsoever, but is a single Cause enumerated in the Return by itself, as the Record clearly shews. It is 22 H. VIII. Rot. 37.
John Bink's Case.
"The Third is of the same King's Time. It is 35 H. VIII. Rot. 33. John Bink's Case. He was committed by the Lords of the Council pro Suspicione Feloniæ, ac pro aliis Causis illos moventibus, qui committitur Marescallo, etc. et immediate ex Gratia Curiæ Speciali, traditur in Ballium; they committed him for Suspicion of Felony, and for 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 bailed him, without having Regard to those unknown Causes that moved the Lords of the Council: But this is indeed somewhat different from either of those other Two that precede, and from the other Nine also that follow; for it is agreed that, if a Cause be expressed in the Return, insomuch that the Court can know why he is committed, that then he may be bailed, but not if they know not the Cause: Now a Man is committed for a Cause expressed, et pro aliis Causis Dominos de Concilio moventibus; certainly in such Case the Court can no more know why he was in Truth committed, than they could if no Cause at all had been expressed.
Richard Overton's Case.
"The Fourth of these is in the Time of Queen Mary. It is Pasch. 2 and 3 Ph. et Mary, Rot. 58. Overton's Case: Richard Overton was returned, upon a Habeas Corpus directed to the Sheriffs of London, to have been committed to them, and detained ad Mandatum Prænobilium Dominorum Honorabilis Concilii Dominorum Regis et Reginæ, qui committitur Marescallo, etc. et immediate traditur in Ballium. In Answer to this Precedent, or by Way of Objection against the Force of it, it hath been said, That this Overton stood at that Time indicted of Treason. It is true, he was so indicted; but that appears in another Roll, that hath no Reference to the Return, as the Return hath no Reference to the Roll. Yet they that object this against the Force of this Precedent say, That, because he was indicted of Treason, therefore, though he was committed by the Command of the Lords of the Council without Cause shewed, yet he was bailable for the Treason, and upon that was here bailed; than which Objection nothing is more contrary either to Law or common Reason: It is most contrary to Law, for that clearly every Return is to be adjudged by the Court out of the Body of itself, and not by any other collateral or foreign Record whatsoever; therefore the Matter of Indictment here cannot in Law be Cause of the bailing the Prisoner; and it is so adverse to all common Reason, that, if the Objection be admitted, it must of Necessity follow, that whosoever shall be committed by the King, or the Privy Council, without Cause shewed, and be not indicted of Treason, or some other Offence, may not be enlarged by Reason of the Supposition of Matter of State; but that whosoever is so committed, and withall stand so indicted, though in another Record, may be enlarged, whatsoever the Matter of State be for which he was committed; the Absurdity of which Assertion needs not a Word for further Consutation; as if any of the Gentlemen in the late Judgement ought to have been the sooner delivered if he had been also indicted of Treason: Certainly, if so, Traitors and Felons had the highest Privilege of Personal Liberty, and that above all other Subjects of the Kingdom.
Edward Neuport's Case.
"The Fifth of this First Kind is of Queen Mary's Time also. It is Pasch. 4 et 5 P. et M. Rot. 45. the Case of Edward Neuport. He was brought into the King's Bench by Habeas Corpus, out of The Tower of London, cum Causa; videlicet, quod commissus fuit per Mandatum Concillariorum Dominæ Reginæ, qui committitur Marescallo, etc. et immediate traditur in Ballium. To this the like Kind of Answer hath been made as to that other Case of Overton next before cited. They say that, in another Roll of another Term of the same Year, it appears he was in Question for Suspicion of Coining; and it is true he was so. But the Return, and this Commitment mentioned in it, have no Reference to any such Offence; nor hath the Bailment of him Relation to any Thing but to the absolute Commitment by the Privy Council; so that the Answer to the like Objection made against Overton's Case satisfies this also.
Thomas Lawrence's Case.
"The Sixth of these is of Queen Elizabeth's Time. It is Mich. 9 Eliz. Rot. 35. The Case of Thomas Lawrence. This Lawrence came in by Habeas Corpus, returned by the Sheriffs of London, to be detained in Prison per Mandatum Concilii Darinæ Reginæ, qui committitur Marescallo, etc. et super hoc traditur in Ballium. An Objection hath been invented against this also. It hath been said, that this Man was pardoned; and indeed it appears so in the Margin of the Roll, where the Word pardonatur is entered. But clearly his Enlargement by Bail was upon the Body of the Return only, 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 Arcanam, or Matter of State, as one that is not pardoned, or out of his own Innocency wants no Pardon?
Robert Constable's Case.
"The Seventh of these is in the same Year, and of Easter Term following. It is Pasch. 9 Eliz. Rot. 68. Robert Constable's Case. He was brought by Habeas Corpus out of The Tower; and in the Return it appeared he was committed there per Mandatum Privati Concilii dictæ Dominæ Reginæ, qui committitur Marescallo, etc. et postea isto eodem Termino traditur in Ballium, etc. The like Objection hath been made to this as to that before of Lawrence; but the selfsame Answer clearly satisfies for both of them.
John Browning's Case.
"The Eighth is of the same Queen's Time, in Pasch. 20 Eliz. Rot. 72. John Browning's Case, This Browninge came in by Habeas Corpus out of The Tower, whither he had been committed, and was returned to have been committed per Privatum Concilium Dominæ Reginæ, qui committitur Marescallo, etc. et postea isto eodem Termino traditur in Ballium. To this it hath been said, that it was done at the Chief Justice Wraie's Chamber, and not in Court; and thus the Authority of this Precedent hath been lessened or slighted. If it had been done at his Chamber, it would have proved at least thus much, that Sir Christopher Wray, then Chief Justice of the King's Bench, being a Grave, Learned, and Upright Judge, knowing the Law to be so, did bail this Browninge, and so enlarge him; and even so far the Precedent were of Value enough: But it is plain that, though the Habeas Corpus were returnable indeed (as it appears in the Record itself) at his Chamber in Serjeant's Inn, yet he only committed him to the King's Bench presently, and referred the Consideration of enlarging him to the Court, who afterwards did it; for the Record says, et postea isto eodem Termino traditur in Ballium; which cannot be intended of an Enlargement at the Chief Justice's Chamber.
"The Ninth of this First Kind is in Killary, 40 Eliz. Rot. 62. Edward Harecourt's Case. He was imprisoned in The Gatehouse, and that per Dominos de Privato Concilio Dominæ Reginæ, pro certis de Causis eos moventibus, et ei ignotis; and, upon his Habeas Corpus, was returned to be therefore only detained, qui committitur Marescallo, etc. et postea isto eodem Termino traditur in Ballium. To this never any Colour of Answer hath been yet offered.
Rob. Catesby's Case.
"The Tenth is Catesbye's Case, in the Vacation after Hilary Term, 43 Eliz. Robert Catesbye was committed to The Fleet, per Warrantum diversorum Prænobilium V.rorum de Privato Concilio Dominæ Reginæ. He was brought before Justice Fenner, One of the then Judges of the King's Bench, by Habeas Corpus, at Winchester House, in Southwarke, et commissus fuit Marescallo per præsatum Edwardum Fennor, et statim traditur in Ballium.
Richard Beckwith's Case.
"The Eleventh is Richard Beckwith's Case, which was in Hilary, the 12th of King James, Rot. 153. He was returned upon his Habeas Corpus to have been committed to The Gatehouse by divers Lords of the Privy Council, qui committitur Marescallo, etc. et postea isto Termino traditur in Ballium. To this it hath been said by some, That this Beckwith was bailed upon a Letter written by the Lords of the Council to that Purpose to the Judges. But it is certain that there was never any Letter written to them to that Purpose; which, though it had been, would have proved nothing against the Authority of the Record; for it was never before heard of that Judges were to be directed in Point of Law by Letters from the Lords of the Council; although, too, it cannot be doubted but that by such Letters sometimes they have been moved to bail Men, that would not or did not ask their Enlargements without such Letters; as will be seen in some Examples that I shew your Lordships among the Precedents of the Second Kind.
Sir Thomas Mounson's Case.
"The Twelfth and last of these is that of Sir Thomas Mounson's Case. It is Mich. 14 Jac. Rot. 147. He was committed to The Tower, per Warrantum a diversis Dominis de Privato Concilio Domini Regis Locumtenenti directum, and was returned by the Lieutenant to be therefore detained in Prison, qui committitur Marescallo, etc. et super hoc traditur in Ballium. To this it hath been answered, That every Body knew by common Fame, That this Gentleman was committed for Suspicion of the Death of a Gentleman in The Tower, and that he was therefore bailable; a most strange Interpretation, as if the Body of the Return and the Warrant of the Privy Council should be understood and adjudged out of Fame only. Was there not as much a Fame why the Gentlemen that were remanded in the late Judgement were committed? and might not the self-same Kind of Reason have served to have enlarged them; their Offence (whatsoever it were) being much less, I think, than that for which this Gentleman was suspected?
"And thus I have faithfully opened the Number of Twelve Precedents, most express in the very Point in Question, and cleared the Objections that have been made against them. And of such Precedents of Record as are of the First Kind, or prove plainly the Practice of former Ages and Judgements of the Court of King's Bench in the very Point in Behalf of the Subject, my Lords, hitherto.
"I come next to those of the Second Kind, or such as have been pretended to prove that Persons so committed are not to be enlarged by the Judges upon the Habeas Corpus, but ought to remain in Prison still, at the Pleasure of the King or of the Privy Council. These are of Two Natures; the First are those wherein some Assent of the King or of the Privy Council appears upon the Enlargement of a Prisoner so committed, as if that, because such Assent appears, therefore the Enlargement could not have been without such Assent. The Second are those which have been used as express Testimonies of the Judges denying Bail in such Cases. I shall open these also to your Lordships; which being done, it will most clearly appear that there is nothing at all in any of these that makes any Thing against the Resolution of the House of Commons touching this Point; nay, it is so far from their making any Thing against it, that some of them add good Weight also to the Proof of that Resolution.
Precedents wherein some Assent of the King or Privy Council appears upon the Enlargement of the Prisoner, as if therefore the Enlargement could not have been without such Assent. Tho. Brugge & al. their Case.
"For those of the First Nature of this Second Kind of Precedents, they begin in the Time of Henry the Seventh. Thomas Brugge and divers others were imprisoned in The King's Bench, ad Mandatum Domini Regis. They never sought Remedy by Habeas Corpus, or otherwise, for aught appears; but the Roll says, that Dominus Rex relaxavit Mandatum; and so they were bailed upon this Release, and by Assent; and the Argument is hence made, as if they could not have been bailed by Law without such Assent. But 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 bailed upon the Release of the Party Plaintiff: Can it follow that, therefore, he could not have been bailed without such a Release? Nothing is more plain than the contrary. It were the same Thing to say that, if it appear that the Plaintiff be nonsuit, therefore, unless he had been nonsuit, he could not have been barred in the Suit. The Case last cited is M. 7 H. VII. Rot. 6.
Bartho'mews, Chare & al. their Case.
"The very like is in the same Year, Hilary 7 H. VII. Rot. 13. the Case of William Bartholmewe, William Chare, and divers others; and the self-same Answer that is given to the other, clears this.
"So, in the same Year, Pasch. 7 H. VII. Rot. 18. John Beomond's Case is the same in Substance with those other Two; and the self-same Answer also satisfies, that clears them.
"The next is M. 12 H. VII. Rot. 8. Thomas Yew's Case. He was committed ad Sectam Pacis, for Surety of the Peace, at the Suit of one Freeman, and besides, ad Mandatum Domini Regis. And first, Freeman relaxavit Sectam Pacis, and then Sir James Hubbard, the then King's Attorney General, relaxavit Mandatum Domini Regis; and hereupon he is bailed. The Release of the King's Attorney no more proves that he could not have been enlarged without such Release or Assent, than that he could not have been bailed without Release of Surety of the Peace by Freeman.
"The very like is in Hilary, 9 H. VII. Rot. 14. The Case of Humfrey Boche, which proves no more here than the rest of this Kind already cited.
"Then, for this Part also, Broome's Case, of Queen Elizabeth's Time, hath been cited. The Case is in Trinity 39° Eliz. Rot. 118. Lawrence Broome was committed to The Gatehouse, per Mandatum Dominorum Concilii Dominæ Reginæ; and being returned so upon the Habeas Corpus, is first committed to The Marshalsea (as the Course is), and then bailed by the Court; which indeed is an express Precedent that might perhaps well have been added to the Number of the first Twelve, which so plainly shew the Practice of enlarging Prisoners in this Case by Judgement of the Court upon the Habeas Corpus; but it is true that, in the Scrolls of that Year, where the Bails are entered (but not in the Record of the Habeas Corpus), there is a Note that this Brome was bailed per Mandatum Privati Concilii, super Habeas Corpus; but plainly this Note is not any Kind of Argument that therefore in Law he might not have been otherwise bailed.
"The self-same is to be said of another of this Kind, in Mich. 40 Eliz. Rot. 37, Wenden's Case. Thomas Wenden was committed to The Gatehouse, by the Queen and Lords of the Council, pro certis Causis, generally, he is brought by Habeas Corpus into the King's Bench, and bailed by the Court: But it is said that, in the Scrolls of that Year, it appears that his Enlargement was per Consensum Dominorum Privati Concilii; and it is true that the Queen's Attorney did tell the Court that the Lords of the Council did assent to it. Follows it, therefore, that it could not have been without such Assent?
Gentleman imprisoned by the Privy Council, 43 Eliz.
"Next in Hill. 43 Eliz. Rot. 89. when divers Gentlemen of special Quality were imprisoned by Command of the Privy Council; the Queen, being graciously pleased to enlarge them, sends a Commandment to the Judges of the King's Bench, that they should take, such Course for the delivering them upon Bail as they should think fit; and they do so, and enlarge them by Bail upon Writs of Habeas Corpus. Follows it, therefore, that this might not have been done by Law, if the Parties themselves had desired it?
"So in Trinit. 1° Jacobi, Rot. 30. Sir John Brockett being committed to The Gatehouse, is by Habeas Corpus returned to stand committed per Mandatum Privati Concilii, and he is enlarged virtute Warranti a Concilio prædicto: But the same Answer that satisfies for the rest before cited, serves for this also.
"The last of these is Reyner's Case, in Mich. 12° Jac. Rot. 119. He was committed to The Gatehouse by the Lords of the Council, and being brought into the King's Bench by Habeas Corpus, is enlarged upon Bail. But this, they say, was upon a Letter written from the Lords of the Council to the Judges. It is true, that such a Letter was written. But the Answers to the former Precedents of this Nature are sufficient to clear this also.
"And in all these observe, First, that it appears not that the Party ever desired to be enlarged by the Court, or was denied it.
"Secondly, Letters either of the Council, or from the King, cannot alter the Law in any Case. So that hitherto nothing that hath been brought for the contrary Part hath any Force, or Colour of Reason in it.
Precedents answered that have been used to prove that Persons committed by Command of the King or Privy Council may not be bailed by the Court.
"We come now, my Lords, to those Precedents of the other Nature, cited against this Liberty of the Subject; that is, such as have been used as express Testimonies to justify, that Persons so committed may not be enlarged by the Court. They are in Number Eight. But there is not one of them at all, that at all proves any such Thing, as your Lordships will plainly see upon the opening of them. The first Four of them are exactly in the same Words, saving that the Names of the Persons and the Prisons differ. I shall first therefore cite them all, but one after the other; and then clear them together.
"The First is Richard Everard's Case, Hill. 7 H. VII. Rot. 18. He and others were committed to The Marshalsea of the Household, per Mandatum Domini Regis, and so returned upon a Habeas Corpus in the King's Bench; whereupon the Entry is only qui committitur Marescallo, etc.
"The Second is Hill. 8 H. VII. Rot. 12°, Richard Cherie's Case. He was commanded to The Mayor of Windsor, per Mandatum Domini Regis, and so returned upon a Habeas Corpus; and the Entry is only qui committitur Marescallo, etc.
"The Third is Hill. 9 H. VII. Rot. 14. Christopher Burton's Case; who was committed to The Marshalsea of the Houshold, per Mandatum Domini Regis, and so returned upon his Habeas Corpus; and the Entry is likewise, qui committitur Marescallo, etc.
"The Fourth is George Urswick's Case, Pasch. 19 H. VII. Rot. 23. He was committed to the Sheriffs of London, per Mandatum Domini Regis, and returned so upon his Habeas Corpus, qui committitur Marescallo, etc.
"These Four have been used principally (and that in the late Judgement) as express Precedents to prove that a Prisoner so committed cannot be enlarged; and perhaps, at the first Sight, to Men that know not or observe not the Course and Entries of the Court of the King's Bench, they may be apprehended to prove as much: But, in Truth, they rather prove the contrary; at least, no Colour of any such Matter as they have been used for; to which Purpose I beseech your Lordships to call to your Memories that which I first observed to you, touching the Course of that Court: When a Prisoner is brought in by Habeas Corpus, he is (if he be not to be remanded) first committed to the Marshal of that Court, and then bailed as his Case requires; this is so certain as it can never be otherwise: Now these Men, being thus committed by the express Command of the King, are first, you see, taken from the Prisons whither they were committed; wherein you may observe, by the Way, my Lords, that, if general Supposition of Matter of State were of Force in such a Case, it might be as needful for Point of State to have the Prisoner remain in the Prison where the King by such an absolute Command had committed him, as to have him at all committed; and so plainly we see, first, the Court would not remand them: When then they have taken them from the Prisons where before they were, they commit them to the Marshal of their own Court, which is but the first Step to bailing them. Now it appears not indeed that they were bailed, for then traditur in Ballium had followed; but nothing at all appears that they were denied it; perhaps they never asked it; perhaps they could not find such as were sufficient to bail them; and in Truth wheresoever any Man that is but removed from any Prison in England (though (fn. 2) it be for Debt or Trespass only) into that Court, the Entry is but in the self-same Syllables as in these Four Cases. And if these Precedents did prove that any of the Prisoners named in them were not bailable, or had been thought by the Court to have been not bailable, it would necessarily follow, that no Man living, that is ordinarily removed from any other Prison into The King's Bench, or that is there upon an ordinary Action of Debt, or Action of Trespass, could be bailed; for every Man that is so brought thither, and not remanded, and every Man that is but arrested for Debt or Trespass, and returned into that Court, is likewise committed to the Marshal of that Court, and by the self-same Entry, and no otherwise: Yet these Four have been much stood on, and have strangely misled the Judgements of some, that either did not, or would seem not to understand the Course of that Court.
"The Fifth of this Nature is Edward Page's Case. It is Trinit. 7 H. VIII. Rot. 23. This might have been well reckoned with the former Four, had not the Mis-entry only of the Clerk made it vary from them. Edward Page was committed to The Marshalsea of the Houshold, and that per Mandatum Domini Regis, and returned to be therefore detained; and the Entry is, qui committitur Marescallo Hospitii Domini Regis, and this Word Mar. is written in the Margin of the Roll. This hath been used also to prove that the Judges remanded this Prisoner; if they had done so, the remanding had been only while they advised, and not any such Award as is given when they adjudge him not bailable. But in Truth the Word committitur sheweth that it was not any remanding of him, which is always expressed by remittitur; nor doth that Court ever commit any Man to The Marshalsea of the Houshold; and besides, the Word Mar. for Marescallo, in the Margin, shews plainly that he was committed to the Marshal of the King's Bench, and not remanded to The Marshalsea of the Houshold; for such Entry of that Word in the Margin is perpetually in Cases of that Nature, when they commit a Man to their own Prison, and so give him the first Step to a Bailment, which he may have, if he ask it, and can find Bail; and doubtless those Words of Hospitii prædicti were added by the Error of the Clerk, for Want perhaps of Distinction in his Understanding of the Marshal of the King's Bench from the Marshal of the Household.
"The Sixth of these is Thomas Geasar's Case. It was in 8 Jac. Regis, Rot. 99. This Ceasare was committed to The Marshalsea of the Houshold, per Mandatum Domini Regis, and returned to be therefore detained; and indeed a remittitur is in the Roll, but not a remittitur quousque, but only that Kind of remittitur which is used while the Court advises; and, in Truth, this is so far from proving any Thing against the Resolution of the House of Commons, that it appears that the Opinion of the Reverend Judges of that Time was, that the Return was insufficient; and that, if it were not amended, the Prisoner should be discharged; for in the Book of Rules of that Court, of Michaelmas Term (when Cæsar's Case was in Question), they expressly Order, That, if the Steward and Marshal did not amend their Return, the Prisoner should be absolutely discharged. The Words of the Rule are, Nisi Senescallus et Marescallus Hospitii Domini Regis sufficienter returnaverint Brove de Habeas Corpus, Thomas Cæsar die Mercurii proxima post Quindenam Sancti Martini defendens exonerabitur; and this is all the Force of that Precedent. But yet there hath been an Interpretation used upon this Rule. It hath been said, that the Judges gave this Rule because that the Truth was that the Return was false; and that it was well known that the Prisoner was committed, not by the immediate Command of the King, but by the Command of the then Lord Chamberlain; and thence (as it was said) they made this Rule. But this Kind of Interpretation is of the first Time wherein ever it was supposed that the Judges should take any Notice of the Truth or Falshood of any Return otherwise than the Body of the Return cou'd inform them; and the Rule itself speaks plainly of the Sufficiency only, and not of the Truth or Falshood of it.
"The Seventh of these is the Case of James Demaistres, Edward Emerson, and some others, that were Brewers, and were committed to The Marshalsea of the Houshold, per Mandatum Domini Regis, in 12 Jacobi, and so returned upon the Habeas Corpus; and it is true that the Roll shews they were remanded; but the remanding was only upon Advisement; and indeed the Grave and Upright Judges of that Time were so careful lest, upon the entering of the remanding, any such Mistake might be as might perhaps mislead Posterity in so great a Point, that they caused expressly the Word immediate to be added to remittuntur, that so all Men that should meet with the Roll might see that it was done for the present only, and not upon any Debate of the Question; and besides, there is no quousque to it, which is always added where the highest Award (upon Debate for Resolution) of this Kind is given by them.
Sir Sam. Saltenstol's Case.
"The Eighth of these is the Case of Sir Samuell Saltenstoll. It is Hil. 12 Jacobi. Sir Samuel Saltonstall was committed to The Fleet, per Mandatum Domini Regis, and besides by the Court of Chancery, for disobeying an Order of that Court, and is returned upon his Habeas Corpus to be therefore detained; and it is true that a remittitur is entered in the Roll, but it is only a remittitur, or of the Nature of a remittitur Prisonæ prædictæ, without quousque secundum Legem deliberatus fuerit; and in Truth it appears in the Record, that the Court gave the Warden of The Fleet Three several Days, at several Times, to amend his Return, and in the Interim remittitur Prisonæ prædictæ still. Certainly, if the Court had thought that the Return had been good, they would not have given him so many several Days to have amended it; for if that Mandatum Domini Regis had been sufficient in the Case, why needed it to have been amended?
"The Ninth and last of these is Trin. 13 Jacobi, Rot. 71, the Case of the same Sir Samuell Saltonstall. He is returned by the Warden of The Fleet as in the Case before; and generally remittitur is in the Roll, which proves nothing at all, that therefore the Court thought he might not by Law be enlarged; and besides, in both Cases, he stood committed also for disobeying an Order in Chancery.
"These are all that have been pretended to the contrary in this great Point: and, upon the View of them thus opened to your Lordships, it is plain that there is not One, not so much as One at all, that proveth any such Thing, as that Persons committed by the Command of the King, or of the Lords of the Council, without Cause shewed, might not be enlarged; but indeed the most of them expressly prove rather the contrary.
"Now, my Lords, having thus gone through the Precedents of Record that concern this Point of either Side, before I come to the other Kind of Precedents (which are the solemn Resolutions of Judges in former Times), I shall, as I am commanded also by the House of Commons, represent unto your Lordships somewhat else that they have thought very considerable, which they have met withall while they were in a most careful Enquiry of whatsoever concerned them in this great Question: It is, my Lords, a Draught of an Entry of a Judgement in that great Case lately adjudged in the Court of King's Bench, when divers Gentlemen, imprisoned per speciale Mandatum Domini Regis, were, by the Award and Judgement of the Court, after solemn Debate, sent back to Prison; because, as it was expressly said, they could not in Justice deliver them, though they prayed to be bailed: The Case is famous, and well known to your Lordships; therefore I need not further mention it; and as yet indeed there is no Judgement entered upon the Roll, but there is Room enough for any Kind of Judgement to be entered. But, my Lords, there is a Form of a Judgement, a most unusual One, such a One as never was in any such Case before used (for indeed there was never before any Case so adjudged), and this drawn up by a chief Clerk of that Court, by Direction of Mr. Attorney General (as the House was informed by the Clerk), in which the Reason of the Judgement and Remanding of those Gentlemen is expressed in such Sort, as if it should be declared upon Record for ever, That the Laws were, that no Man could ever be enlarged from Imprisonment that stood committed by any such absolute Command. The Draught is only in Sir John Henningham's Case, being one of the Gentlemen then remanded; and it was made for a Form for all the rest: The Words of it are after the usual Entry of a Curia advisari vult for a Time, that visis retorno prædicto, necnon diversis antiquis Recordis in Curia hic remanentibus, consimiles Casus concernentibus, maturaque Deliberatione inde prius habita, eo quod nulla specialis Causa Captionis sive Detentionis prædicti Johannis exprimitur, sed generaliter quod detentus est in Prisona prædicta per speciale Mandatum Domini Regis; idco prædictus Johannes remittitur præfato Custodi Maresealciæ Hospitii prædicti, salvo custodiendus quousque, etc. that is, quousque secundum Legem deliberatus fuerit; and if that Court, which is the highest for Ordinary Justice, cannot deliver him secundum Legem; what Law is there (I beseech you, my Lords) that can be sought for in any Inferior Court for his Delivery? Therefore, what can the Judgement with quousque mean, but plainly a perpetual Imprisonment awarded by the Court: Now, my Lords, because this Draught, if it were entered into the Roll (as it was prepared for no other Purpose, would be as great a Declaration contrary to the many Acts of Parliament already cited, and contrary to all Precedents of former Times, and to all Reason of Law, to the utter Subversion of the chiefest Liberty and Right belonging to every Freeman of the Kingdom; and for that especially also it supposes that divers ancient Records have been looked into by the Court in like Cases; and that, by those Records, their Judgements were directed; whereas, in Truth, there is not one Record at all extant that, with any Colour, not so much indeed as with any Colour, warrants the Judgement; therefore the House of Commons thought fit also that I should, with the rest that hath been said, shew this Draught also to your Lordships.
"I come now to the other Kind of Precedents, that is, solemn Resolutions of Judges, being not of Record, but remaining only in authentic Copies; but of this Kind there is but One in this Case; that is, a Resolution of all the Judges of England in the Time of Queen Elizabeth: It was in the 34th of Her Reign, when divers Persons had been committed by absolute Command, and delivered by the Justices of the one Bench or the other; whereupon it was desired that the Judges would declare in what Cases Persons committed by such Command were to be enlarged by them. The Resolution hath been variously cited, and variously apprehended. The House of Commons, therefore, desiring with all Care to inform themselves as fully of the Truth of it as possibly they might, got into their Hands, from a Member of their House, a Book of selected Cases, collected by a Learned and Reverend Chief Justice of the Common Pleas, that was one of them that gave the Resolution, which is entered at large in that Book; I mean the Lord Chief Justice Anderson: It is written at large in that Book in his own Hand (as the rest of the Book is); and however it hath been cited, and was cited, in that great Judgement given upon the Habeas Corpus in the King's Bench, as if it had been that upon such Commitments the Judges might not bail the Prisoners; yet it is most plain that, in the Resolution itself, no such Thing is contained, but rather expressly the contrary. I shall better represent it to your Lordships by reading it, than by opening it:
Opinion of the Judges 34° Eliz. touching the Enlargement of Prisoners committed by the Privy Council.
"We Her Majesty's Justices of both Benches, and Barons of the Exchequer, desire your Lordships, that, by some good Means, some Order may be taken, that Her Highness's Subjects may not be committed nor condemned in Prison, by Commandment of any Nobleman or Chancellor, against the Laws of the Realm; either else to help us to have Access to Her Majesty, to the End to become Suitors to Her for the same; for divers have been imprisoned for suing ordinary Actions and Suits at the Common Law, until they have been constrained to leave the same against their Wills, and put the same to; albeit Judgement and Execution have been had therein, to their great Losses and Griefs; for the Aid of which Persons, Her Majesty's Writs have sundry Times been directed to divers Persons having the Custody of such Persons unlawfully imprisoned; upon which Writs no good or lawful Cause of Imprisonment hath been returned or certified; whereupon, according to the Laws, they have been discharged of their Imprisonment; some of which Persons, so delivered, have been again committed to Prison in secret Places, and not to any common or ordinary Prisons, or lawful Officer or Sheriff, or other lawfully authorized to have or keep a Gaol, so that, upon Complaint made for their Delivery, the Queen's Courts cannot learn to whom to direct Her Majesty's Writs, and by this Means Justice cannot be done.
"And moreover, divers Officers and Serjeants of London have been many-times committed to Prison, for lawful executing of Her Majesty's Writs sued forth of Her Majesty's Courts at Westm. and thereby Her Majesty's Subjects and Officers so terrified, as they dare not sue or execute Her Majesty's Laws, Her Writs and Commandments.
"Divers others have been sent for by Pursuivants, and brought to London from their Dwellings, and, by unlawful Imprisonment, have been constrained not only to withdraw their lawful Suits, but have also been compelled to pay to the Pursuivants so bringing such Persons great Sums of Money; all which, upon Complaint, the Judges are bound by Office and Oath to relieve and help, by and according to Her Majesty's Laws.
"And where it pleased your Lordships to will divers of us to set down in what Cases a Prisoner sent to Custody by Her Majesty, Her Council, or some One or Two of them, are to be delivered in Prison, and not delivered by Her Majesty's Courts or Judges, we think that if any Person be committed by Her Majesty's Commandment from Her Person, or by Order from the Council Board, or if any One or Two of Her Council commit One for High Treason, such Persons, so in the Case before committed, may not be delivered by any of the Courts without due Trial by the Law, and Judgement of Acquittal had; nevertheless the Judges may award the Queen's Writ, to bring the Bodies of such Prisoners before them; and if, upon Return thereof, the Causes of their Commitment be certified to the Judges as it ought to be, then the Judges, in the Cases before, ought not to deliver him, but to remand the Prisoner to the Place from whence he came, which cannot conveniently be done, unless Notice of the Cause in general, or else specially, be given to the Keeper or Gaoler that shall have the Custody of such Prisoner.
"All the Judges and Barons did subscribe their Names to these Articles, Termino Paschæ 34 Eliz. and delivered one to the Lord Chancellor, and one other to the Lord Treasurer; after which Time there did follow more Quietness than before in the Causes before-mentioned.
"If this Resolution do resolve any Thing, it doth indeed, upon the Matter, resolve fully the contrary to that which was pretended in that late Judgement, and enough for the Maintenance of this ancient and fundamental Point of Liberty of the Person to be regained by Habeas Corpus, when any Man is imprisoned. But I the rather thought fit now to read it to your Lordships, that it might be at large heard, because, in that late great Judgement in the King's Bench, though it were cited at the Bar as against this Point of Personal Liberty, as also at the Bench, yet though every thing else of Record, or the like, that was used, were at large read openly, this was not read either at Bar or Bench; for indeed, if it had, every Hearer would easily have known the Force of it to have been indeed contrary to the Judgement.
"My Lords, having thus gone through the Charge committed to me by the House of Commons, and having thus mentioned to your Lordships and opened the many Precedents of Record, and that Draught of the Judgement in like Case, as also this Resolution; I shall now, as I had Leave and Direction given me, lest your Lordships should be put to too much Trouble and Expence of Time in the finding or getting Copies at large of those Things which I have cited, offer also to your Lordships authentic Copies of them all; and so leave them, and whatsoever else I have said, to your Lordships further Consideration."
4. The Lord Bishop of Lincoln reported the Conclusion of the said Conference, made by Sir Edward Cooke, Knight, in hæc verba: videlicet,
The Bishop of Lincoln's Report of the Conference touching the Liberties of the Subject.
"Sir Edward Cooke began with a Repetition of what was offered to your Lordships; how there was Seven Acts of Parliament insisted on, also Thirty-one Precedents summarily collected, and with great Understanding repeated. He said that, in good Faith, he had perused and understood them all thoroughly, and that there was not One of them against the Tenet of the House of Commons; that there had been procured Twelve Precedents in Terminis terminantibus, a whole Jury of Precedents, and all in Point, and to his Understanding admit of no Answer; but he is persuaded, in his Conscience, that a Number of these were never shewed at the King's Bench, because he knoweth out of whose Quiver Two of them came, and that they were not known before. Here he seemed much transported with Joy, because of his Hopes to proceed with good Success, in regard this House was so full of Justice, the House of Commons came so well prepared, nay the very Theme and Subject did promise Success, which was Corpus cum Causa; and such they now presented to your Lordships, Corpus cum Causa, the Freeness of the Bodies of the Subject, together with the Reasons and Causes why they should be so.
"These happy Conjunctures did much encourage him, that this Parliament would proceed happily, as hitherto it had done. Now, in this Conference, he told your Lordships he had but a short Part, and he was glad of it; for your Lordships being wearied already, it was now unseasonable to be too prolix and copious, because quod intempestivum injucundum. He said, he would speak here and there a little of his own, in Points that were not so clear and obvious; for otherwise perspicue vera non sunt probanda, and to gild Gold were idle and superstuous; and then, by Way of Preface, he began to clear unto your Lordships some Doubts made of the Statute of Westm. I, which saith, Sheriffs and others may not replevy Men imprisoned for Four Causes: 1. Death of a Man. 2. By Commandment of the King. 3. Absolute Commandment of the Justices. 4. For Matters of the Forest; as your Lordships have heard delivered. He said, he was once a Judge of the King's Bench, and did wonder how the Judges of these Times did interpret that Statute. The Statute doth only shew what Sheriffs can do by Way of Replevine. The Sheriff's Court is a Petty and a Base Court, and not of Record, where the Sheriff is not the Judge, but the Jurors; that is, John a Noke, a John a Style, William Roe, and John Doe, and such Worthies as these. Again, the Statute saith there, he cannot be replevied if he be taken for the Death of a Man; and no Marvel; who ever thought it? for the Scripture saith, Sanguis nullo modo potest expiari, nisi Sanguine. But, if he cannot be there replevied, cannot he be bailed at the King's Bench? Good Lord! it is done every Day. Mr. Sheriff, you should not replevine a Man in such a Case: Ergo, not you bail him, my Lords the Judges? non sequitur. What! not Judges bail? not the King's Bench? the highest Court of Record of ordinary Jurisdiction? for the King's Bench is higher than the Chancery. This is proved by a Rule in Heraldry, Additio probat Minoritatem, that an Addition proves the younger Brother. Now the Teste of the King's Bench is coram Domino Rege, sans queux, without any Addition; but that of the Chancery coram Domino Rege in Cancellaria, with that Addition of a Cadet and a younger Brother.
"Here the Learned Knight acknowledged that he was very sorry that he was so much streightened with Time; for he was (as he said) very much delighted with these Things. And then he returns again to the Statute.
"What! (saith he) may not the Judges meddle with any Matter of the Forest? If that were so, he said he would never dwell in a Forest, to be wholly under the Jurisdiction of Verdurers and Regarders; and concluded, that these Glosses and Interpretations were very strange unto him and others who had been Judges.
"And thus much he spake by Way of Preface, concerning the Statute of Westm. I.
"And here he put your Lordships in Mind, that all those Arguments offered unto your Lordships in this last Conference are of a double Nature. 1. Acts of Parliament. 2. Judicial Precedents. For the First, he held it a most proper Argument to move your Lordships, because (saith he) you my Lords Temporal, and you my Lords Spiritual, gave your Assents unto these Acts of Parliament; and therefore, if these cannot persuade you, nothing can.
"For the Second, which are Judicial Precedents, it is Argumentum ab Auctoritate, et Argumentum ab Auctoritate valet affirmative; that is, as I conceive it, although it be no good Argument to say negatively, the Judges have given no Opinions in the Point: Ergo, it is not Law; yet affirmatively it concludes well; the Judges have clearly delivered their Opinions in the Point: Ergo, it is good Law, which he fortified with a strong Axiom, Neminem oportet supientiorem esse Legibus, as long as those Laws stand unrepealed.
"Now these Two Arguments being so well pressed to your Lordships, by his Two Colleagues, he thought your Lordships would wonder what his Part might be. He said, his Part was short, but sweet: It was the Reason of all these Laws and Precedents; now these Reasons must needs be welcome to all Men, for all Men are not capable of the understanding of the Laws, but every Man is capable of Reason. And these Reasons they offer unto your Lordships, in Affirmance of the ancient Laws.
"And here the Learned Gentleman produced Six general Reasons, in excellent good Order and Method, to confirm these Laws and Precedents, made for the Liberty of the Subject, against Imprisonment without Cause expressed. I will repeat them, as he did, in Order and Method. 1. A re ipsa. 2. A minori ad majus. 3. From the Remedies provided. 4. From the Extent and Universality of the same. 5. From the Indefiniteness of Time. 6. A fine.
"1. General Reason drawn a re ipsa, even from the Nature of Imprisonment, ex Visceribus Causæ; for he will speak nothing but is ad idem, be it close or other Imprisonment; and this Argument is Threefold, because an imprisoned Man is upon Will and Pleasure; 1. a Bondman; 2. worse than a Bondman; 3. not so much as a Man, for Mortuus Homo non est Homo, and a Prisoner is a dead Man.
"1. No Man can be imprisoned upon Will and Pleasure of any, but he that is Bond and a Villain; for that and Tailler luy haut et bas are propria quarto modo to Villains. Now propria quarto modo and the Species are convertible; whosoever is a Bondman may be imprisoned upon Will and Pleasure, and whosoever may be imprisoned upon Will and Pleasure is a Bondman.
Cases produced to prove a Freeman imprisoned, without Cause shewn, is in worse Condition than a Bondman.
A Prior's Bondman, 7 Ed. III.
"2. If Freemen of England might be imprisoned at the Will and Pleasure of the King, at His Commandment, then were they in worse Case than Bondmen and Villains; 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 their Books; and here he said that no Man should reprehend any Thing that he said out of Books or Records. He said he would prove a Freeman imprisonable upon Command or Pleasure, without Cause expressed, to be absolutely in a worse Case than a Villain; and if he did not make this plain, he desired your Lordships not to believe him in any Thing else, and then produced Two Book Cases; the First 7 Edw. III. Fol. 50, in the new, 348 old Print. A Prior had commanded one to imprison his Villain; the Judges were ready to bail him, till the Prior gave his Reason, That he refused to be Baily of his Manor; and that satisfied the Judges.
An Abbot's Bondman, 33 E. III.
"Second Case, 33 Ed. III, Tit. Tresp. 253, in faux Imprisonment, Fitz. It was of an Abbot, (fn. 3) who commanded one to take and detain his Villain; but (fn. 3) being demanded his Cause; he gives it, Because he refused, being thereunto required, to drive his Cattle: Ergo, Freemen imprisoned without Cause given are in worse Case than Bondmen, that must have a Cause given why they are imprisoned.
"3. A Freeman imprisoned without Cause is so far from being a Bondman, that he is not so much as a Man; but is indeed a Dead Man, and so no Man: Imprisonment is accounted in Law a Civil Death, perdit Domum, Familiam, Vicinos, Patriam, and is to live amongst wretched and wicked Men, Malefactors, and the like: And that Death and Imprisonment was the same, he proved by an Argument ab Effectis, because they both produce the like immediate Effects. He quoted a Book for this. If a Man be threatened to be killed, he may avoid Feoffment of Lands, Gift of Goods, etc. so it is if he be threatened to be imprisoned, 39 H. VI. Fol. 5, etc. The one is an Actual, the other a Civil Death; and this is the First general Argument drawn a re ipsa from the Nature of Imprisonment, to the which res ipsa Consilium dedit.
"Second General Reason he takes also from his Book; for he hath no Law but what by great Pains and Industry he learnt at his Book, for at Ten Years of Age he had no more Law than other Men of the like Age; and this Second General Reason is a minore ad majus; he takes it from Bracton, 2° Fol. 105. Minima Pæna Corporalis est major qualibet Pecuniaria. But the King Himself cannot impose a Fine upon any Man; but it must be done judicially, by his Judges, per Justiciarios in Curia, non per Regem in Camera; and so it hath been resolved by all the Judges in England. He quoted (as I took it) 3 Ri. II. Fol. 11.
"3. The Third General Reason, drawn from the Number and Diversity of Remedies which the Law giveth against Imprisonment: videlicet,
"Brevia de Homine replegiands; de Odio et Atia; de Habeas Corpus. An Appeal of Imprisonment. Breve de Manucaptione. The latter Two of these are antiquated; but the Writ de Odio et Atia is revived; for that was given by the Statute of Magna Charta, Cap. 26; and therefore, though it were repealed by the Statute of 28 Ed. III, yet it is revived by the Statute of 42 Ed. III, 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 been imprisoned at Free Will and Pleasure.
"The Fourth General Reason, from the Extent and Universality of the pretended Power to imprison; for it should extend not only to the Commons of the Realm and their Posterities, but to the Nobles of the Realm and their Honourable Progenies, to the Bishops and Clergy of the Realm and their Succession; and that he gave as a Reason why the Commons came unto your Lordships; commune Periculum commune requirit Auxilium. Nay, it reacheth to all Persons, of what Condition or Sex or Age soever; to all Judges and Officers, whose Attendance is necessary, etc. without Exception of any Person. And therefore so extended an Imprisonment without Reason is against Reason.
"The Fifth General Reason is drawn from the Indefiniteness of Time. The pretended Power being limited to no Time, it may be perpetual, during Life. And this is very hard to cast an old Man to Prison, nay to close Prison, and no Time allotted for his coming forth, is a hard Case, as any Man would think that had been so used. And here he held it an unreasonable Thing that a Man had a Remedy for his Horse, or his Cattle, if it were detained, and none for his Body, thus indefinitely imprisoned; for a Prison without any prefixed Time is a Kind of Hell.
"The Sixth and last Argument is a fine; and sapiens incipit a fine; and he wished he had begun there also. And this Argument he made Threefold:
"1. Ab honesto, this being less honourable.
"2. Ab utii, this being less profitable.
"3. A tuto, this Imprisonment by Will and Pleasure being very dangerous to King and Kingdom.
"1. Ab honesto. It would be no Honour to the King or Kingdom to be a King of Bondmen or Slaves. The End of this would be both Dedecus et Dumnum, both to the King and Kingdom, that in former Time hath been so renowned. Bracton; Nihil tam proprium est Imperii, quam Legibus vivere.
"2. Ab utili. It should be against the Profit of the King and Kingdom for the Execution of the said Laws before remembered, Magna Charta, 5 Ed. III, 25 Ed. III, 28 Ed, III, whereby the King was inhibited to imprison upon Pleasure. You see (quoth he) that this was vetus Querela, an old Question, and now brought in again after Seven Acts of Parliament. I say, the Execution of all these Laws are adjudged in Parliament to be for the common Profit of the King and His People (he quoted the Roll, Rot. Parl. 36 Ed. III. Pl. 9° 20): Ergo, this pretended Power, being against the Profit of the King, can be no Part of His Prerogative. He was pleased to call this a binding Reason, and to say that the Wit of Man could not answer it; that great Men indeed kept this Roll from being printed, but that it was equivalent in Force to the Printed Rolls.
"3. Reason a tuto. It is dangerous to the King for Two respects; 1. of Loss; 2. of destroying of the Endeavours of Men.
"First, if he be committed without Expression of the Cause, though he escape, albeit the Truth be is were for Treason or Felony, yet the Escape is neither Felony nor Treason: But, if the Cause be expressed for Suspicion of Treason or Felony, then the Escape, albeit he be innocent, is Treason or Felony. He quoted an Act, 1 Ed. II. de frangentibus Prisonam. It is in Holbourne, Latine; nisi Causa pro qua captus et imprisonatus fuerat tale Judicium requirat, si de illa secundum Legem et Consuctudinem Terræ fuisset convictus. So he quoted a Case in Point, 38 Ed. III. Rot. 33. like a Reason of the Law, not like a remittitur at the rising of the Court; for there the Prisoner traditur in Ballium, quod Breve Regium non fuit sufficiens Causa, the King's Commandment. He quoted another famous Case, Rot. Parl. 28 H. VI. N°. 16. The Commons in Parliament, incensed against the Duke of Suff. desire he should be committed. The Lords and all the Judges (whereof those great Worthies Prisott and Fortescue made Two) delivered a flat Opinion, that he ought not to be committed without an especial Cause. He pressed also the Name and Etymology of the Writ in Question, Corpus cum Causa: Ergo, the Cause must be brought before the Judge; else how can he take Notice thereof ? Lastly, he pressed a Place in the Gospel, Acts xxv. last Verse, where Festus conceives it , an absurd, an unreasonable Thing, to send a Prisoner to the Roman Emperor, and not to write along with him , all the Causes alledged against him. Send therefore no Man a Prisoner without his Causes along with him: Hoc fac et vives. And this was the First Reason a tuto, that it was not safe for the King, in regard of Loss, to commit Men without Cause.
"Second Reason is, that such Commitments will destroy the Endeavours of all Men; who will endeavour to employ himself to any Profession, either of War, Merchandize, or of any liberal Knowledge, if he be but Tenant at Will of his Liberty? for no Tenant at Will support or improve any Thing, because he hath no certain Estate: Ergo, to make Men Tenants at Will of their Liberties, destroys all Industry and Endeavour whatsoever:
"And so much for these Six Principal Reasons,
A minori ad majus,
From the Extent and Universality,
"These were his Reasons.
"Here he made another Protestation, that, if Remedy had been given in this Case, they would not have meddled therewith by no Means; but now the Remedy being denied in the King's Bench, without looking back upon any Thing that hath been done or omitted, they desire some Provision for the future only.
"And here he took Occasion to add Four Book Cases and Authorities, all in the Point; saying, that if the Learned Counsel on the other Side could produce but one against the Liberties so pat and pertinent, oh! how they would hug and cull it!
"1. 16 H. VI. Tit. Monstrans de aicts, 18. By the whole Court, the King in His Presence cannot command a Man to be arrested, but an Action of false Imprisonment lieth against him that arresteth; not the King in His Royal Presence; yet now others can do it; non sic itur ad Astra.
"2. H. VII. 4. Hussey reports the Opinion of Markeham, Chief Justice to Edward the Fourth, that He could not imprison by Word of Mouth; and the Reason, because the Party hath no Remedy; for the Law leaves every Man a Remedy of causeless Imprisonment: He added, Markham was a worthy Judge, though he fell into Adversities at last, but by the Lord Rivers's Means.
"3. Fortescue, Cap. 8. Proprio Ore nullus Regum usus est, to imprison any Man, etc.
"4. Quarto Eliz. (Queen Elizabeth, a Blessed Queen, so renowned for Justice and Religion!) Pl. 235. in Plowden (as I took it). The Common Law hath so admeasured the King's 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. For this he quoted the Orator: Major Hæreditas venit unicuique nostrum a Jure et Legibus quam a Parentibus. And these are the Four Authorities he cited in this Point.
"Now he propounded and answered Two Objections; First, in Point of State; Second, in the Course held by the House of Commons.
"1. Objection. May not the Privy Council commit, without Cause shewed, in no Matter of State where Secrecy is required? Would not this be an Hindrance to His Majesty's Service?
"Answer. It can be no Prejudice to the King, by reason of Matter of State; for the Cause must be of a higher or lower Nature, If it be for Suspicion of Treason, Misprision of Treason, or Felony, it may be by general Words touched. If it be for any other Thing of smaller Nature, as Contempt and the like, the particular Cause must be shewed, and no individuum vagum, or uncertain Cause, to be admitted.
"2. Objection. Again, if the Law be so clear as you make it, what needs this Declaration and Remonstrance in Parliament?
"Answer. The Subject hath in this Case sued for Remedy in the King's Bench by Habeas Corpus, and found none: Therefore it is necessary to be cleared in Parliament. And here ended his Discourse.
"And then he made a Recapitulation of all that had been offered unto your Lordships: That generally your Lordships had been advised by the most faithful Counsellors that can be, dead Men: These cannot be daunted for Fear, nor misled by Affection, Reward, or Hope of Preferment; and therefore your Lordships might safely believe them. Particularly, your Lordships had Three several Kinds of Proofs, Acts of Parliament, Judicial Precedents, Good Reasons.
"1. You have heard ancient and many Acts of Parliament in the Point (besides Magna Charta); that is, Seven Acts of Parliament, which indeed are Thirtyseven; Magna Charta being confirmed Thirty Times, for so oft gave the Kings of England their Royal Assents thereunto.
"2. Judicial Precedents of Grave and Reverend Judges, in Terminis terminantibus, that long since are departed this World; and they were many in Number, Precedents being Twelve, and the Judges, Four of a Bench, made Four Times Twelve; and that is Fortyeight Judges.
"3. Thirdly, you had, as he termed them, vividas Rationes, manifest and apparent Reasons.
"Towards, the Conclusion, he declared unto your Lordships, that they in the House of Commons have, upon great Study and serious Consideration, made a great Manifesto unanimously, nullo contradicentc, concerning this great Liberty of the Subject; and have vindicated and recovered the Body of this Fundamental Liberty, both of your Lordships and themselves, from Shadows, which some Time of the Day are long, some Time short, and some Time long again; and therefore we must not be guided by Shadows: And they have transmitted unto your Lordships, not Capita Rerum, Heads or Briefs, for these Compendia be Dispendia; but the Records at large, in Terminis terminantibus. And so he concluded, that your Lordships are involved in the same Danger; and therefore, ex congruo et condigno, they desired a Conference, to the End your Lordships might make the like Declaration as they had done; commune Periculum requirit commune Auxilium; and thereupon take such further Course, as may secure your Lordships, and them, and all your Posterity, in the enjoying of your ancient undoubted and fundamental Liberties."
It is Ordered, That all these Four Reports shall be entered.
Dominus Custos Magni Sigilli declaravit præsens Parliamentum continuandum esse usque in pomeridianum hujus diei, hora tertia, Dominis sic decernentibus.
Domini tam Spirituales quam Temporales, quorum nomina subscribuntur, præsentes fuerunt:
Earl of Devon's Bill.
THE Lord Steward reported the Earl of Devon's Bill fit to pass, with some Amendments, and One Proviso for the now Countess Dowager of Devon.
The which were Twice read, and the Bill Ordered to be ingrossed.
Liberties of the Subject.
Their Lordships were moved to consider how to proceed in the Business sent up by the Commons, touching their ancient Liberties; and the House was put into a Committee, that the same might be the more freely debated.
The House being resumed; their Lordships agreed to hear the King's Learned Counsel To-morrow at Two post meridiem, and the Clerk's Man to attend the King's Counsel with the Reports, and with the Copies delivered by the Commons.
Earl of Mulgrave admits the Earl of Banbury's Precedency.
The Earl Marshal signified unto the House, That the Earl of Mulgrave is contented to give Precedency to the Earl of Banbury, during the said Earl's Life only, according to the King's Desire.
and the Earl of Marleborough.
The Lord Admiral signified, That the Earl of Marleborough, Lord Treasurer, made no Scruple in giving his Consent also.
Dominus Custos Magni Sigilli declaravit præsens Parliamentum continuandum esse usque in diem Jovis, decimum diem instantis Aprilis, hora nona, Dominis sic decernentibus.