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 Sabbati, 19 Aprilis,
p. Archiepus. Cant.
p. Epus. Winton.
p. Epus. Hereforden.
p. Epus. Norwicen.
p. Epus. Roffen.
p. Epus. Co. et Lich.
p. Epus. Oxon.
p. Epus. Lincoln.
p. Epus. Sarum.
p. Epus. Bath. et Well.
p. Epus. Bristol.
p. Epus. Gloucestren.
p. Epus. Carlile.
p. Epus. Exon.
p. Epus. Landaven.
p. Ds. Coventry, Ds. Custos Mag. Sigilli.
p. Comes Marleborough, Mag. Thesaurar. Angliæ.
p. Comes Maunchester, Præs. Concilii Domini Regis.
p. Dux Buckimgham, Magnus Admirall. Angliæ.
p. Comes Lindsey, Mag. Camerar. Angliæ.
p. Comes Arundell et Surr. Comes Maresc. Angliæ.
p. Comes Pembroc, Senesc. Hospitii.
p. Comes Mountgomery, Camerar. Hospitii.
Comes (fn. 1) Derbiæ.
p. Comes Rutland.
p. Comes Bedford.
p. Comes Hertford.
p. Comes Essex.
p. Comes Lincoln.
p. Comes Nottingham.
p. Comes Sarum.
p. Comes Bridgewater.
p. Comes Leicestriæ.
p. Comes North'ton.
p. Comes Warwic.
p. Comes Devon.
p. Comes Bristol.
p. Comes Angles.
p. Comes Holland.
p. Comes Clare.
p. Comes Bolingbrooke.
p. Comes Westmerland.
p. Comes Berk.
p. Comes Cleveland.
p. Comes Monmouth.
p. Comes Norwich.
p. Comes Dover.
p. Vicecomes Say et Seale.
p. Vicecomes Wimbleton.
p. Vicecomes Conway.
p. Vicecomes Bayninge.
p. Ds. Clifford.
p. Ds. Percy.
p. Ds. Delawarr.
p. Ds. Dacres.
p. Ds. Stourton.
p. Ds. Darcy.
Ds. St. John de Bas.
p. Ds. Pagett.
p. Ds. Compton.
p. Ds. Spencer.
Ds. Stanhope de Harr.
Ds. Stanhope de Sh.
p. Ds. Noel.
p. Ds. Kymbolton.
p. Ds. Newenham.
p. Ds. Mountague.
p. Ds. Grey.
p. Ds. Tregoze.
p. Ds. Tuston.
p. Ds. Mountioy.
p. Ds. Fawconbridge.
p. Ds. Lovelace.
p. Ds. Pawlett.
p. Ds. Harvy.
p. Ds. Howard.
p. Ds. Weston.
p. Ds. Goringe.
E. of Southampton excused.
Reformation of Prisoners in the Common Gaols.
L. Viscount Wimbledon.
L. Bp. of Roffen.
The Lord Keeper's Report of the Conference touching the Liberty of the Subject.
Attorney General's Arguments in Behalf of the King's Prerogative.
" At the Conference, Mr. Attorney declared, That as, by Commandment of the Lords, himself and his Fellows of the Learned Counsel advised together, and by him had declared in this House what was conceived fitting; so, upon a new Commandment, they had again advised and conferred, shewing at this Conference the Effect of what was delivered in the House, which in Substance rested upon these Parts:
" In these, by their Advice, he resolved not to pass from Point to Point, but, according to the Time and Occasion, to touch some Parts summarily, and to insist chiefly on One: videlicet, the Precedents. For the Parliamentary Proceedings, he agreed that the Great Charter, upon which the Liberty of the Free Subject of this Kingdom is grounded, is in Force, and that, in former Times, Occasions were often given to the Subject to press it to be confirmed; and that the Commons do fitly and worthily to maintain the Liberty and Privileges left unto them by their Ancestors. He did also acknowledge that this Charter did extend to the King rather than the Subject; and that the subsequent Statutes, Six in Number, stand in Force: But the Difference and Doubt rested in the Interpretation and Application of the Statute; For the Words of Magna Charta are general; that it did not wholly restrain the King from imprisoning a Subject, but with this, nisi per legale Judicium Parium suorum, vel per Legem Terræ; and how far Lex Terræ extends is and ever was the Question. Of the subsequent Statutes, some consirm Magna Charta, in totidem verbis, and therefore decide not the Question, but leave it as they found it; so as to ground any Argument on them will be but Petitio Principii, and the others concern not the Question now in Hand, but were made for Redress of Inconveniences happening to the Subject by the Suggestion or Information of Parties; but this he submitted to the Houses. In the Court of King's Bench, the Judges did not meddle with the Statutes, but did ground themselves upon Resolutions and Precedents, which he would now repeat, and leave the Difference to both Houses. We have directed the Records to be here; and, if it shall seem good unto your Lordships and the Gentlemen of the Commons, we desire that we may read or open what is in the Declaration of the Commons touching each Record, and then read the Record itself, and open what we have to say therein. The first Precedent is, that John Bidelston, a Clergyman, by a Writ under the Great Seal, was committed to The Tower, with Commandment to the Lieutenant to keep him safely, doucc aliter a Nobis habueritis in Mandatis. From The Tower he was (fn. 2) sent to The King's Bench, and committed to the Marshal: and the Lieutenant asked if he had any other Cause against him, who said, No, but the King's Writ only: Et quia vidctur Curiæ quod Breve prædictum non est sufficiens Causa, etc. ideo he was bailed. To this he answered, That this Writ bears Date in March, 16 E. III, and commands to receive John Bidelston from the Sheriffs of London, to whom he was formerly committed. In the Writ is neither general nor special Cause, nor yet any Mention upon what Warrant or Command he was committed to the Sheriffs of London; and it is true that dimittitur per Manucaptionem. And thus far it seems to make for the other Side. But, said Mr. Attorney, it appears that this Writ was not an original Commitment, but a transferring and removing of the Prisoner from one Custody to another. Secondly, It appears he lay Two Years in The Tower; videlicet, from 16 E. III, till 18 E. III, ere he came to the King's Bench. Thirdly, It appears in another Part of the same Record that the Cause of his Commitment was for Suspicion of counterfeiting the Great Seal, and was brought to the King's Bench for that Cause; for being bailed, and at the Day coming in upon his Bail, there came another Writ to the Justices, which Mr. Attorney read out of the Record; which recited, That the King had caused him to be brought to the King's Bench, for Suspicion of counterseiting the Great Seal, quousque per quendam Informatorom plenius informemur; and because the Informer came not, the Writ commands the Judges, that, if he came not by 15na Trinitatis, then Adventum ejus non expectant, they proceed according to Law; so as, although in a Record so ancient it is difficult to find out all material Parts, yet by this Writ the Cause of the Commitment appears; and when the Cause appears, and is such whereupon the King's Bencl may proceed, they must go on according to Justice.
"It appears by this Writ, that he was committed upon the Suggestion of an Informer; and observe the Time; for it seems, about 5 E. III, and forward, these Informers began to be too frequent; and therefore Care was taken to relieve the Subject against those Inconveniences, which, growing more and more, were after complained of in Parliament."
Sir Edward Cooke answers them.
Your Lordships have well perceived how fairly, and with what Respect, we have dealt with your Lordships, and ever shall: We brought up unto you what we had resolved on, and not only that, but the Cause and Grounds of our Resolutions and all our Records, the like of that, adding One Thing more, which had been done in this Case, was never done in Parliament: We are to maintain what we did. The Natural and the Politic Body have a great Resem blance and Proportion. If the Natural Body hath Symptoms of good or evil Health, we hold it a good Symptom for us that Mr. Attorney was so long and so loth to come to it. My Lords, we will break Order rather than defer the Business: This Conference is between the Two Houses. Mr. Attorney is no Member of your House. He attends you: His Voice is with us. Yet we are so willing to proceed, as we will take no Hold of Threads; let him say what he can, we will allow him a Voice here where he ought not to speak. We have delegatam Potestatem tantam permissem, quantam commissam; and therefore, for all new Matter at this Conference, we come with Ears, not with Tongues. For the Resolutions of the Judges, we are glad of them; and we are confident never a Judge in England will be against what we have resolved. We can say nothing to it, it is new Matter; but we will report it faithfully to our House. Quintilian, a notable Rhetorician, for so he was indeed, and taught the Rules best, speaks of Simulatio. It is a Figure in Rhetorick; and, says he, Simulatio procedit ut quod dicendo refutare non possumue, id tanquam fastidiendo calcitremus: Methinks Mr. Attorney hath made use of this Simulatio, and hath slighted the Acts of Parliament: And therefore we desire they may be read. Here being told by the Lord Keeper, That the Acts of Parliament were well known, and had been all read in our House; he replied, I cannot tell: Nescio quid Energiæ habet viva Vox; Alas! Litera occidit, Spiritus autem vivisicat. To slight these is tanquam fastidiendo calcitrare; and so pressed on that the Acts of Parliament might be read and opened."
"And thereupon began Mr. Litleton. It is agreed by Mr. Attorney, and resolved by the Judges; That the Acts of Parliament are all in Force, and that the Statute of Magna Charta concerns the King as well as the Subject; nay, the King rather than the Subject. The Exposition makes all the Matter, and chiefly of these Words Legem Terræ; which if they bear not the Exposition which we have given them, I would gladly (fn. 3) have heard from Mr. Attorney another Exposition. I will prove our Exposition by Reason, for if these Words Legem Terræ should be extended to the general Law of the Land, then it should extend to Villains, who, by the Law of the Land, may be imprisoned by their Lords without any Cause; but so cannot a Freeman. But I need not insist upon Reason, the Exposition is so clear by the ensuing Statutes, and reading the Words of the Statute of 25 E. III. By this it appears that what in Magna Charta is called Lex Terræ, in the Statute of 25 E. III is called Process of the Law. And where Mr. Attorney said, the Words were general, they are as express as any Man can pen them in this Age; and where he said that the ensuing Statutes extend to Imprisonments upon Suggestion of Parties, it is equal whether the King do it of Himself, or by Suggestion of others; but Kings seldom do those Things merely of Themselves, but as Things proceed from some Man's Suggestion. Then reading the Statute of 5° E. III, said, None would doubt but attaching in that Statute was attaching of the Body. And reading the Statute of 28 E. III, without any special Inference upon it, he read 36 E. III, Rot. Parl. No. 9°."
Lord President's Report of the Conference, touching the Liberty of the Subject.
"That Mr. Littleton read divers of the Statutes, which he cited in the former Conference, which was reported here on the 9th of April, and made the same Inferences thereunto; and that Mr. Attorney delivered another Answer unto the same than what he had formerly made; which he left to the Judgement of the Lords.
Precedents. cited by the Commons, to prove that Persons committed by the King or Privy Council, without Cause shewn, have been bailed, when they prayed it;—with the Attorney General's Objections. John de Bildeiton's Case.
"Then Mr. Attorney made his Objections unto the Precedents alledged by Mr. Selden on Behalf of the Commons; and Mr. Selden gave several Answers unto the same, on this Manner: videlicet, (fn. 4) The First, to the Twelve Precedents procured by the Commons to prove their Resolutions, is the Case of John Bidleston, Pasch. Anno 18° E. III, Rot. 33. Rex. To this Mr. Attorney First objected, That, in the Return of him into the Court, it did not appear that this Bildiston was committed by the King's Command; and Secondly, That in the Record it did appear also that he had been committed for Suspicion of counterseiting the Great Seal, and so by Consequence was bailable in the Law, in regard there appeared a Cause why he was committed; and he said that this Part of the Record, by which (fn. 5) it appeared he had been committed for this Suspicion of Treason, was not observed to the Lords in the Argument of the Commons before used. And he shewed also to the Lords that there were Three several Kinds of Records, by which the full Truth of every Award, or Bailing upon a Habeas Corpus, is known. First, the Remembrance Roll, wherein the Award is given; Secondly, the File of the Writ and the Return; and Thirdly, the Scruett Roll, or Scruett Finium, wherein the Bail is entered; and that only the Remembrance Roll of this Case was to be found; and that, if the other Two were extant, he doubted not but that it would appear also that, upon the Return itself, the Cause of the Commitment had been expressed: And so he concluded, that this proved not for the Resolution of the House of Commons, touching the Manner of Bail where a Prisoner was committed by the King's special Command, without Cause shewed. To these Objections Mr. Selden replied, First, that it was plain that Bildeston was committed by the King's express Command, for so are the very Words in the Writ to the Constable of The Tower, quod eum teneri et custodiri facias, etc. than which nothing can more fully express a Commitment by the King's Command. Secondly, howsoever it be true that in the latter Part of the Record it do appear that Bildeston had been committed for the Suspicion of Treason, yet if the Times of the Proceedings expressed in the Record were observed, it would be plain that the Objection was of no Force; for this one Ground, both in this Case and all the rest, is infallible, and never to be doubted of in the Law, That the Justices of every Court adjudge of the Force or Strength of a Return out of the Body of itself only, and according as it therein appears to them. Now in Easter Term, 18 Ed. III, he was returned and brought before them, as committed only by that Writ, wherein no Cause is expressed; and the Lieutenant of the Constable of The Tower of London, that brought him into the Court, says, that he had no other Warrant to detain him nisi Breve prædictum, wherein there was no Mention of any Cause; and the Court thereupon adjudge, That Breve prædictum (or that special Command) was not sufficiens Causa to detain him in Prison; and thereupon he is, by Judgement of the Court, in Easter Term, let to Mainprize. But that Part of the Record, wherein it appears that he had indeed been committed for Suspicion of Treason, is of Trinity Term following, when the King, after the letting to Mainprize sent to the Judges, that they should discharge his Mainprize, because no Man prosecuted him; and at that Time it appears (but not before) that he had been in for Suspicion of Treason, so that he was returned to stand committed by the King's special Command only, without Cause shewed, in Easter Term; and then, by Judgement of the Court, let to Mainprize (which to the Purpose is but the same with Bail, though otherwise it differ); and in the Term following, upon another Occasion, the Court knew that he had been committed for Suspicion of Treason, which hath no Relation at all to the letting of him to Mainprize, nor to the Judgement of the Court then given, when they did not or could not possibly know any Cause for which the King had committed him. And Mr. Selden said, in Behalf of the House of Commons, that they had not indeed in their Argument expressly used this latter Part of the Record of Bildeston's Case, because, it being only of Trinity Term following, it could not concern the Reason of an Award given to the Court in Easter Term next before; yet, notwithstanding, that they had most faithfully, at the Time of their Argument, delivered in to the Lords a perfect Copy at large of the whole Record of this Case, as they had done also of other Precedents whatsoever cited by them. And as touching those Three Kinds of Records, the Remembrance Roll, the Return and File of the Writs, and the Scraetts, Mr. Selden answered, That it was true that the Scruett and Return of this Case of Bildeston was not to be found; but that it did not lessen the Weight of the Precedent, because always, in the Award or Judgement drawn up in the Remembrance Roll, the Cause (whatsoever it be) when any is shewed upon the Return, is always expressed, as it appears clearly by the constant Entries of the Court of King's Bench, so that, if any Cause had appeared to the Court, it must have appeared plainly in that Part of the Roll which belongs to Easter Term, wherein the Judgement was given. But the Return of the Commitment by the King's Command, without Cause shewed, and the Judgement of the Court that the Prisoner was to be let to Mainprize, appears therein only; and therefore, notwithstanding any Objection made by Mr. Attorney, Mr. Selden affirmed this Cause to be a clear Proof, amongst many others, touching that Resolution of the House of Commons.
"To the second of those Twelve, which is Parker's Case, in 22 H. VIII. Rot. 37. Mr. Attorney's Objections were Two: First, that it is true that he was returned to be committed per Mandatum Domini Regis; but that it appeared that this Command was certified to the Sheriffs of London by one Robert Peck, Gentleman; and that, in regard that the Command came no otherwise, the Return was held insufficient, and that therefore he was bailed. Secondly, that it appears also in the Record that he was committed pro Suspicione Feloniæ, ac per Mandatum Domini Regis; so that, in regard that, in the Expression of the Causes of his Commitment, Suspicion of Felony precedes the Command of the King, therefore it must be intended that the Court took the Cause why the King committed him to be of less Moment than Felony, and therefore bailed him; for he objected, that even the House of Commons themselves, in some Arguments used by them, touching the Interpretation of the Statute of Westm. the First, Chap. 15. about this Point, had affirmed, that, in Enumeration of Particulars, those of greatest Nature were first mentioned; and it was supposed that such as followed were usually of less Nature or Moment. But Mr. Selden replied to the first Objection, That the Addition of the certifying of the King's Command by Roberte Peck altered not the Case; First, because the Sheriffs, in their Return, took Notice of the Command, as what they were assured of; and then, howsoever it came to them, it was of equal Force as if it had been mentioned without Reference. Secondly, that, as divers Patents passed the Great Seal by Writ of Privy Seal, and are subscribed per Breve de Privato Sigillo, so divers per ipsum Regem, and are so subscribed; and oftentimes, in the Rolls of former Times, to the Words per ipsum Regem are added nuntiante A. B. So that the King's Command generally, and the King's Command related or certified by such a Man, is to this Purpose of like Nature. Thirdly, in the late great Case of the Habeas Corpus, where the Return of the Commitment was per speciale Mandatum Domini Regis mihi significatum per Dominos de Privato Concilio, the Court of King's Bench did agree that it was the same, and of like Force, as if mihi significatum, etc. had not followed, and that those Words were void; according whereunto here also per Mandatum Domini Regis nuntiatum per Robertum Peck were to be taken as if nuntiatum per Robertum Pek had been wholly omitted, and void likewise. And in Truth, in that late Case, this Case of Parker was cited both at the Bar and Bench; and at the Bench it was interpreted by the Judges no otherwise than if it had been only per Mandatum Domini Regis in this Place of it.
"But the Objection there was made of another Kind, as was delivered in the First Argument made out of Precedents in Behalf of the House of Commons. Then, for the Second Objection, touching the Course of Enumeration of the Causes in the Return, Mr. Selden said, that howsoever, in some Acts of Parliament and elsewhere, in the solemn Expressions used in the Law, Things of greater Nature precede, and the less follow; yet in this Case the contrary was most plain; for in the Return it appears that there were Three Causes of detaining the Prisoner, Surety of the Peace, Suspicion of Felony and the King's Command; and Surety of the Peace is first mentioned, which is plainly less than Felony; therefore it is as plain that (if any Force of Argument be here to be taken from this Enumeration) that the contrary to that which Mr. Attorney inferred is to be concluded; that is, as Felony is a greater Cause than Surety of the Peace, so the Matter whereupon the King's Command was grounded was greater than the Felony. But, in Truth, this Kind of Argument holds neither Way here; and whatsoever the Cause were why the King committed him, it was impossible for the Court to know. And it might also have been of very high Moment in Matter of State, and yet of far less Nature than Felony. All which shews that this Precedent hath its full Force also, according as it was first used in Argument by the House of Commons.
"To the Third of these, which is Brincks's Case, in 35 H. VIII. Rot. 33. The Objection by Mr. Attorney was, that there was a Cause expressed pro Suspicione Feloniæ; and though pro aliis Causis illos moventibus were added in the Return, yet because, in the Course of Enumeration, the general Name of alia coming after Particulars includes Things of less Nature than the Particular doth; therefore, in this Case, Suspicion of Felony being the First, the other Causes afterwards generally mentioned must be intended of less Nature, for which the Prisoner was bailable, because he was bailable for the greater, which was Suspicion of Felony.
"Hereto Mr. Selden replied, That the Argument of Enumeration in these Cases is of no Moment, as is next before shewed; and that, although it were of any Moment, yet the aliæ Causæ (though less than Felony) might be of very great Consequence in Matter of State which is pretended usually upon general Returns of Command without Cause shewed. And it is most plain that the Court could not know the Reasons why the Prisoner here was committed; and yet they bailed him, without looking further after any unknown Thing under that Title of Matter of State, which might as well have been in this Case as in any other whatsoever.
"Mr. Selden answered, It is plain that the Word there hath no Reference at all to the Reason why they were bailed, neither could it have Reference to the Cause why they were committed, in regard the Cause why they were committed is utterly unknown, and was not shewed.
"To the Eighth, which is Browning's Case in Pasch. 20 Eliz. Rot. 72. it was said by Mr. Attorney, that he was bailed by a Letter from the Lords of the Council, directed to the Judges of the Court; buz, being asked for that Letter, or any Testimony of it, he could produce none at all; but said, he thought the Testimony of it was burnt, among many other Things of the Council Table, at the Burning of the Banqueting House.
"To the Tenth, which is Catesby's Case, in Vacatione Hillarii, 46 Eliz. Mr. Attorney said, That it was by Direction of a Privy Seal from the Queen; and to that Purpose he shewed the Privy Seal of 43 Eliz. which is at large amongst the Transcripts of the Records, concerning Bails taken in Cases where the King or Lords of the Council assembled. But Mr. Selden replied, That the Privy Seal was made only for some particular Gentleman mentioned in it, and for none other, as indeed appears in it. And then Mr. Selden said, That it was likely that Catesby here had a Privy Seal in his Behalf, because those others had so.
"To the Eleventh of these, which is Beckwith's Case, in Hill. 12 Jac. Rot. 153. Mr. Attorney said, The Lords of the Council sent a Letter to the Court of King's Bench, to bail him; and he produced a Letter which could not be found when the Arguments were made at the First Conference. To this Mr. Selden replied, That the Letter was of no Moment, being only a Direction to the Chief Justice, and no Matter of Record, nor any Way concerning the rest of the Judges. And besides, either the Prisoner was bailable by the Law, or not bailable; if bailable by the Law, then was he to be bailed without any such letter; if not bailable by the Law, then plainly the Judges could not have bailed him upon the Letter without Breach of their Oath, which is, that they are to do Justice, according to the Law, without having Respect to any Command whatsoever; so that the Letter in this Case, or the like in any other Case, is for Point of Law, to no Purpose, nor hath any Weight at all by Way of Objection against what the Record and Judgement of the Court shews us.
Sir Thomas Mounson's Case.
"To the Twelfth and last of these, which is Sir Thomas Mounson's Case, in the 14th Jac. Rot. 147. the said Objection was said over by him, which was moved and answered in the Argument at the First Conference; and that one Ground which is infallible, that the Judgement upon a Return is to be made only out of what appears in the Body of the Return itself, was again insisted upon by Mr. Selden in this Case (as it was also in most of the rest).
"After Mr. Attorney's Objections to these Twelve, and the Replies given to these Objections, Mr. Attorney came next to those wherein the Assent of the King or the Privy Council appears to have been upon the Enlargement; and he made the same Kind of Objections as are moved and answered before. And for so much as concerns Letters of Assessment or Direction, the same was here said again by Way of Reply to him, as is before said touching the Letter in Beckwith's Case.
Precedents that have been advanced to prove, That Persons committed by the King or Privy Council may not be bailed by the Court, supported by the Attorney General. Everard's, Cherry's, Burton's, and Urswick's Cases.
Which are answered by the Managers for the Commons.
"Of these Eight the first Four were urged by him as being of one Kind: the Difference of them being only such that, have only in the Names of Prisons and of Persons, they are but the self-same. The Force of these Four be objected thus: That Richard Everrard (for the Purpose in the First of them), which is 5 H. VII. Rot. 18. Roger Cherry in the Second of them, which is 8 H. VII. Rot. 12. Christopher Burton in the Third of them, which is 9 H. VII. Rot 14. and George Urswick in the Fourth of them, which is 19 H. VIIRot. 33. were returned into the King's Bench, upon several Writs of Habeas Corpus, to have been committed and determined in the several Prisons where they came per Mandatum Domini Regis; and that, upon that Return, they were committed to the Marshal of the King's Bench; and that, however it had been objected against those Precedents that this Kind of Commitment was by the Course of that Court always done before the Bailing of the Prisoner, yet that it did not appear that they were bailed.
"Mr. Selden's Reply to this Objection was, That, by the constant Course of the King's Bench, whosoever came in by Habeas Corpus, or otherwise, upon any Writ, into that Court, cannot be bailed, until he be first committed to the Marshal of that Court; and that thence it was that all those Four were committed to the Marshal, as appeared by the Entry, qui committitur Marescallo, etc. which is the usual Entry in such a Case; and that the Clerks of that Court acknowledge this Course and Entry to be most constant; so that all the Inference that can be made out of these Four is, that Four Prisoners being brought from several Prisons, by Habeas Corpus, into the King's Bench, and returned to stand committed per Mandatum Domini Regis, were so far from being to be remanded by the Law, that, in all these Four Cases, they were presently first taken from the several Prisons wherein they had been detained by such general Command (which could not have been if they had not been adjudged in every of the Cases to have been bailable by the Court); and that this Commitment of them to the Marshal of the King's Bench was the First Step towards the Bailing, as in all other Cases; but that it appears not that either they over demanded to be bailed, or that they were able to find sufficient Bail; and if they did not the one, or could not do the other, it may follow indeed that they were not bailed; but this Commitment to the King's Bench, being the First Step to the Bailing of them (as by constant Course it is), shews most plainly that they were bailable by the Law, which is the only Thing in Question.
"The Fifth of these Eight, being Edward Page's Case, in 7 H. VIII. Rot. 23. Mr. Attorney objected thus: He said that Edward Page was committed to The Marshalsea of the Household, per Mandatum Domini Regis, ibidem salvo custodiendus, etc. qvi committitur Marescallo Hospitii Domini Regis; by which it appears (as he said) that the Court remanded him to the Prison of The Marshalisea of the Household; and he said that whereas it had been objected, at the First Conference, that here was some Mistaking in the Entry, he said he conceived indeed that there was a Mistaking; but the Mistaking was that the Clerk had entered committitur for remittitur, and that it should have been (qui remittitur Marescallo Hospitii Domini Regis; for whenever they remand the Prisoner, remittitur, and not committitur, should be entered; and that Mistaking being so rectified and understood, he conceived it was a direct Precedent against the Resolution of the House of Commons.
"To this Mr. Selden answered, That there was no Doubt indeed but that a Mistaking was in the Entry by the Clerk; but that the Mistaking was quite of another Nature; the Addition of those Words Hospitii Domini Regis was the Mistaking; and the Entry should have been qui committitur Marescallo, etc. only; that is, he was committed to the Marshal of the King's Bench; and so indeed the Force of this Precedent should be but just the same with the First Four; but that the Ignorance of the Clerk that entered it, knew not how to distinguish between the Marshal (fn. 6) of the Household and the Marshal of the King's Bench, was the Cause of the Addition of those Words Hospitii Domini Regis. And Mr. Selden observed, That there is, in the Margin of the Roll, an infailible Character that justifies as much; for, by the Course of that Court, whensoever a Prisoner is committed to the Marshal of the King's Bench, and not remanded, the Word Marescallo is written in the Margin short, by M, a, and r turned up; and that is never written there but when the Meaning and Sense of the Entry is that the Prisoner is committed to the Prison of the same Court. Now, in this Case, in the Margin Mar. is likewise written, which most clearly shews that the Truth of the Case was, that this Page was committed to the Marshal of the King's Bench, and not remanded; which if he had been, neither could the Entry have been committitur, nor should the Margin of the Roll have had Marescallo written in it.
"The Sixth of these Eight Precedents, being the Case of Thomas Cæsar, in 8 Jac. Regis, Rot. 99. Mr. Attorney objected it thus: That Cæsar, being committed per Mandatum Domini Regis to The Marshalsea of the Household, was returned upon Habeas Corpus to be so committed, and therefore detained in Prison; and that the Entry is, qui remittitur Prisonæ Mar. prædict, by which it appears clearly that he was remanded to the same Prison from whence he came. To which Mr. Selden gave this Answer: That the usual Entry of a remittltur, when it is to shew that the Court, by Way of Judgement or Award upon Resolution or Debate, remands the Prisoner, is remittitur quousque, etc. which is remittitur quousque secundum Legem deliberatus suerit; but when they advise, or give Day to the Keeper of the Prison to amend his Return or the like, then the Entry is only remittitur generally, or remittitur Prisonæ prædictæ. But it was indeed affirmed by Mr. Keeling, a Clerk of Experience in that Court, that the Entry of remittitur generally, or remittitur Prisonæ prædictæ was indifferently used for the same; that is, remittitur quousque, etc. Yet it was expressly shewed by Mr. Selden, that there was sometimes a Difference; and that so it might well be in this Case; for, in the last of these Eight Precedents, which is Saltonstall's Case, they observe that remittitur Prisonæ prædictæ is often used; and, in that Case, it is plain that Twice it is used only for a remanding during the Time that the Court gave Leave to the Warden of The Fleet to amend his Return; which shews plainly, that, though sometimes remittitur generally and remittitur quousque may mean but the same, yet sometimes also it doth not mean the same: And that in this Case of Cæsar it meant only but so much as it doth Twice in that of Saltonstall's Case, was proved also by a Rule of the Court, which was cited out of the Rule Book of the Court of King's Bench; (fn. 7) which Rule of Court expressly Ordered, That unless the Steward and Marshal of the Household did sufficiently return the Writ of Habeas Corpus for Cæsar, that he should be discharged: The Words of the Rule are, nisi prædictus Senescallus et Marescallus Hospitii Domini Regis sufficienter returnaverint Breve de Habeas Corpus Thomæ Cæsar die Mercurii proximo post Quindenam sancti Martini, Defendens exonerabitur. And this was the Opinion of the Court; which shews that the Court was so far from remanding him upon the Return, that they resolved, unless some better Return were made, the Prisoner should be discharged of his first Imprisonment, though it appeared to them out of the Body of the Return (upon which they are only to judge) that he was committed per Mandatum Domini Regis only.
The Seventh is the Case of James Demetrius. It was 12 Jacobi Regis, Rot. 153. Mr. Attorney objected, That this Dimetrius and divers other, being Brewers, were committed, per Mandatum Domini Regis, to The Marshalsea of the Household; and that, upon the Commitment being so generally returned, they were remanded; and that the Entry was immediate remittitur præsato Marescallo Hospitii prædicti, where he observed that immediate shews that the Judges of that Time were so resolved of this Question, that they remanded him presently, as Men that well knew what the Law was herein. Hereunto Mr. Selden gave these Answers: First, That the remittitur in this Case is but as in the other of Cæsar's, and so proves nothing against them: Secondly, That immediate being added to it shews plainly that it was done without Debate, or any Argument or Consideration had of it, which makes the Authority of the Precedent to be of no Force in Point of Law; for Judgements and Awards, given (fn. 8) upon Deliberation only and Debate, are Proofs and Arguments of Weight, and not any sudden Act of the Court, without Debate or Deliberation. And the Entry of immediate being proposed to Mr. Keeling, it was confirmed by him, that by the Entry it appears, by the Course, that the remanding of him was the self-same Day he was brought; which, Mr. Selden said, might be after the Rising of the Court, or upon Advisement, or the like. And this Answer was given to this Precedent of the Brewers.
Sir Samuel Saltonshall's Cafe.
"The last of these Eight, which Mr. Attorney objected, is Saltonstall's Case, in 12 Jac. Regis. He was committed per Mandatum a Dominis de Privato Concilio; and being returned by the Warden of The Fleet to be so, remittitur Prisonæ prædictæ, and in the 13 Jac. in the same Case, there is remittitur generally in the Roll; and these Two make but One Case, and are as One Precedent.
"To this Mr. Selden answered, That it is true the Rolls have such Entries of remittitur in them generally, but that proves nothing upon the Reason before used by them in Cæsar's Case; but also Saltonstall was committed for another Cause besides per Mandatum Dominorum Concilii; videlicet, for a Contempt against an Order in Chancery; and that was in the Return also: And besides the Court, as it appears in the Record, gave several Days to the Warden of The Fleet, to amend his Return, which they would not have done if they had conceited it sufficient, because that which is sufficient needs no Amendment.
"To this Mr. Attorney replied, That they gave him a Day to amend his Return in respect of that Part of it that concerned the Order in Chancery, and not in respect of that which was per Mandatum Concilii.
But Mr. Selden answered, That that appears not any where, nor indeed is it likely at all, or can be reasonably so understood; because, if the order Return, per Mandatum Concilii, had been sufficient by itself, then doubtless they would have conducted him upon that alone; for then they needed not to have stood at all upon the other Part of the Return in this Case; so that, out of the Record itself it appears fully that the Court conceived the Return to be insufficient."
Earl of Hertford's Report of the Conference touching the Liberties of the Subjects. Precedents, where some Assent of the King or Privy Council appears upon the Enlargement of Prisoners committed by special Command, supported by the Attorney General.
After Mr. Attorney had made his Objections, and the Gentlemen of the Commons House their Answers, to what had been said touching the Twelve Precedents brought for express Testimonies for the Maintenance of the Resolution of the House of Commons; and after the Gentlemen of the House of Commons had given their Answer to that which was objected out of such Precedents as shew some Assent of the King's Attorney, or of the Lords of the Council, upon the Bailing of Prisoners committed by such special Command; Mr. Attorney came to urge the Eight Precedents for the other Side against that Resolution; which Eight were mentioned, and Copies of them given in to us, at the First Conference.
Which are also answered by the Managers for the Commons.
Everard's, Cherry's, Burton's and Urswick's Cases.
Of these Eight, The First Four were urged by Mr. Attorney as being of One Kind, the Difference of them being only such that, have in the Names of Persons and of Prisons, they are but the self-same. But whereas, at the First Conference, it had been said that, in the late Case touching this Point in the King's Bench, the Court had relied upon these Pour; he said, that there were but Two of them used in that Case. The Force of these Four he objected thus: That Richard Everard (for the Purpose) in the First of them, which is 5° H. VII. Rot. 18. Roger Cherey in the Second of them, which is 8° H. VII. Rot. 12. Christopher Burton in the Third of them, which is 9° H. VII. Rot. 14. and George Urswick in the Fourth of them, which is 19 H. VII. Rot. 23. were returned into the King's Bench, upon several Writs of Habeas Corpus, to have been committed and detained in the several Prisons whence they came, per Mandatum Domini Regis; and that, upon that Return, they were committed to the Marshal of the King's Beach; and that, however it had been objected against these Four Precedents, that this Kind of Commitment was, by the Course of that Court, always done before the Bailing of the Prisoners, yet that it did not appear that they were bailed.
The Answer to this Objection was, That, by the constant Course of the Court of the King's Bench, whosoever came in by Habeas Corpus, or otherwise, upon any Writ, into that Court, cannot be bailed until he be first committed to the Marshal of that Court; and that thence it was that all these Four were committed to the Marshal, as appears by the Entry, qui commutitur Marescallo, etc. which is the usual Entry in such a Case; and that the Clerks of that Court acknowledge this Course of Entry to be most constant and perpetual; so that all the Inference that can be made out of these Four is but, That Four Prisoners, being brought from several Prisons, by Habeas Corpus, into the King's Bench, and returned to stand committed per Mandatum Domini Regis, were so far from being remanded by the Law, that, in all these Four Cases, they were first taken from the several Prisons wherein they had been detained by such a general Command, which could not have been, as it was said on the Part of the Gentlemen of the House of Commons, if they had not been adjudged, in every of these Cases, to have been bailable by the Court; and that this Commitment of them to the Marshal of the King's Bench was the First Step toward, the bailing of them, as in all other Cases. But that it appears not that either they ever demanded to be bailed, or that they were able to find sufficient Bail; and if they did not the one, or could not do the other, it might follow indeed that they were not bailed; but this Commitment to the King's Bench being the first Step to the bailing of them, as by constant Course it is, shews most plainly, that they were bailable by the Law, which is the only Thing in Question. And it was said by the Gentlemen of the House of Commons, That, although these Four Precedents were ranked among them that may seem to make against their Resolution, which was done both because they have this small Colour in them for the other Side, to any Man that is not acquainted with the Nature and Reason of the Entries and Course of the Court of King's Bench, and also because all or some of them had been used in the last great Case in the King's Bench, as Precedents that made against this Liberty claimed by the Subject; yet in Truth all Four of them do fully prove their Resolution; that is, they plainly shew that the Court of King's Bench, in every of them, resolved that the Prisoners so committed were bailable; otherwise they had been remanded, not committed to the Marshal of the King's Bench: And it was said by them also that the chief Clerk of the King's Bench did, out of his Experience, affirm to them in their House, that without Question, every of these Four Prisoners were either bailed or bailable; which as fully makes for their Resolution as any thing else whatsoever; and this was the Answer to the Objection made by Mr. Attorney upon these Four Precedents, being all of the Time of Henry VII.
"The Fifth of these Eight, being Edward Page's Case, in 7 Hen. VIII. Rot. 23. Mr. Attorney objected thus: He said that Edward Page was committed to The Marshalsea of the Household, per Mandatum Domini Regis, ibidem salvo custodiendus, etc. qui committitur Marescallo Hospitii Domini Regis; by which it appears, as he said, that the Court remanded him to the Prison of The Marshalsea of the Household. And he said, that whereas it had been objected at the first Conference that here was some mistaking in the Entry; he said, he conceived indeed that there was a Mistaking, and that the Mistaking was, that the Clerk had entered committitur for remittitur, and that so it should have been, qui remittitur Marescallo Hospitii Domini Regis; for whenever they remand the Prisoner, remittitur and not committitur should be entered; and that Mistaking being so rectified and understood, he conceived that it was a direct Precedent against the Resolution of the House of Commons.
"To this it was answered by the Gentlemen of the House of Commons, That there was no Doubt indeed but that a Mistaking was in the Entry by the Clerk, but that the Mistaking was quite of another Nature: The Addition of those Words Hospitii Domini Regis was the Mistaking, and the Entry should have been, qui committitur Marescallo, etc. only; that is, he was committed to the Marshal of the King's Bench, and so indeed the Force of this Precedent (fn. 9) should be but just the same with the First Four. But that the Ignorance of the Clerk that entred it, and knew not how to distinguish between the Marshal of the Household and the Marshal of the King's Bench, was the Cause of the Addition of those Words Hospitii Domini Regis. And, to confirm fully this Kind of Interpretation of that Precedent, and of the Mistaking in it, it was observed by the Gentlemen of the House of Commons, that there is in the Margin of the Roll an infallible Character, that justifies as much; for, by the Course of that Court, whensoever a Prisoner is committed to the Marshal of the King's Bench, and not remanded, the Word Marescallo is written by M, a, and r turned up; and that is never written there but when the Meaning and Sense of the Entry is, that the Prisoner is committed to the Prison of the same Court. Now, in this Case, in the Margin Mar. is likewise written, which most clearly shews, that the Truth of the Case was, that this Page was committed to the Marshal of the King's Bench, and not remanded; which if he had been, neither could the Entry have been committitur, nor should the Margin of the Roll have had Marescallo written in it. And thus they answered Mr. Attorney's Objection touching this Precedent, and concluded, that now, besides the First Four of these Eight, they had another, and so Five more, to prove plainly that a Prisoner committed per Mandatum Domini Regis generally was bailable by the Judgement of the Court; however, it appears not in these Particulars that they were bailed, which perhaps they were not, either because they prayed it not, or because they could not find sufficient Bail.
"The Sixth of these Eight Precedents, being the Case of Thomas Cæsar, in 8° Jac. Regis, Rot. 99. Mr. Attorney objected it thus: That Cæsar being committed per Mandatum Domini Regis to The Marshalsea of the Household, was returned upon Habeas Corpus to be so committed, and therefore detained in Prison; and that the Entry is qui remittitur Prisonæ Mar. prædicti, by which it appears clearly that he was remanded to the same Prison from whence he came.
"To this the Gentlemen of the House of Commons gave this Answer: They said, that the usual Entry of a remittitur, when it is to shew that the Court, by way of Judgement or Award upon Resolution or Debate, remanded the Prisoner, is remittitur quousque, etc. which is remittitur quousque secundum Legem deliboratus fuerit; but, when they advise or give Day to the Keeper of the Prison to amend his Return, or the like, then the Entry is usually remittitur generally, or remittitur Prisonæ pradictæ; but it was indeed affirmed by Keelinge, a Clerk of Experience in that Court, that the Entry of remittitur generally or remittitur Prisonæ prædicta was indifferently used; yet it was expressly shewed by the Gentlemen of the House of Commons, that there was sometimes a Difference, and that so it might well be in this Case; for, in the last of these Eight Precedents, which is Saltonstall's Case, they observed that remittitur Prisonæ prædictæ is often used; and in that Case it is plain that Twice it is used only for a Remanding, during the Time that the Court gave Leave to the Warden of The Fleet to amend his Return; which shews plainly, as it was said, that although sometimes remittitur generally and remittitur quousque may mean but the same, yet sometimes also it doth not mean the same; and that, in this Case of Cæsar, it intends but so much as it doth Twice in that of Saltonstall's Case. This they proved also by a Rule of the Court, which they cited out of the Rule Book of the King's Bench; by which Rule the Court expressly Ordered, That unless the Steward and Marshal of the Household did sufficiently return the Writ of Habeas Corpus for Cæsar, that he should be discharged. The Words of the Rule are, as they cited it, nisi prædictus Senescallus et Marescallus Hospitii Domini Regis sufficionter returnaverint Breve de Habeas Corpus Thomæ Cæsar die Mercurii proximo post Quindenam sancti Martini, Defendens exonerabitur. And this was the Opinion of the Court; which shews, as it was said, that the Court was so far from remanding him upon the Return, that they resolved, that, unless some better Return were made, the Prisoner should be discharged of his First Imprisonment; though it appeared to them, out of the Body of the Return (upon which they are only to judge), that he was committed per Mandatum Domini Regis only: And the Rule, they said, not only shews the Opinion of the Court then to have been agreeable with the Resolution of the House of Commons, but also proves that remittitur generally, or remittitur Prisonæ prædictæ, doth not always imply a Remanding upon Judgement or Debate: And thus they gave answer to this of Cæsar's Case, which is the Sixth of this Number.
"The Seventh is the Case of James Demetrius. It was in 12° Jacobi, Rot. 153. Mr. Attorney objected, That this Demetrius and divers others, being Brewers, stood committed per Concilium Domini Regis, to The Marshalsea of the Household; and that, upon the Habeas Corpus being so generally returned, they were remanded; and that the Entry was immediate remittuntur præfato Marescallo Hospitii prædicti: where he observed that immediate shews that the Judges of that Time were so resolved of this Question, that they remanded him presently, as Men that well knew what the Law was therein.
"Hereunto the Gentlemen of the Commons House gave these Answers; First, that the remittitur in this Case is but as in the other of Cæsar's, and so proves nothing against them: Secondly, That immediate shews plainly, that it was done without Debate, or any Argument or Consideration had of it, which makes the Authority of the Precedent to be of no Force in Point of Law, for Judgements and Awards given upon Deliberation only and Debate are Proofs and Arguments of Weight, and not any sudden Act of the Court, without Debate or Deliberation; and the Entry of immediate being proposed to Mr. Keclinge, it was answered by him, That by that Entry it appears by their Course that the remanding of him was the self-same Day that he was brought; which, as it was said by the Gentlemen of the House of Commons, might be at the Rising of the Court, or upon Advisement, or the like: And thus they gave Answer to this Precedent of the Brewers.
Sir Samuel Saltonstall's Case.
"The last of these Eight, which Mr. Attorney objected, is Saltonstall's Case, in 12° Jacobi Regis. He was committed per Mandatum Dominorum de Privato Concilio, said Mr. Attorney; and being returned by the Warden of The Fleet to be so, remittitur Prisonæ prædictæ. And in 13° Jacobi, in the same Case, there is remittitur generally in the Roll; and these Two make but One Case, and are as One Precedent.
"To this the Gentlemen of the House of Commons answered, That it is true the Roll hath such Entry of remittitur in it generally; but that, they said, proves nothing, upon the Reason before used by them in Cæsar's Case: But also they observed that Saltonstall was committed for another Cause besides per Mandatum Dominorum Concilii, for a Contempt against an Order in Chancery, and that was in the Return also; and besides the Court, as it appears in the Record, gave several Days to the Warden of The Fleet to amend his Return, which they would not have done if they had conceived it sufficient, because that which is sufficient needs not any Amendment.
"To this Mr. Attorney replied, That they gave him Day to amend his Return, in respect of that Part of it that concerns the Order in Chancery, and not in respect of that which was per Mandatum Concilii.
"But the Gentlemen of the Commons House said, That appears not any where, nor indeed is it likely at all, nor can be reasonably so understood; because, if the other Return, per Mandatum Concilii, had been sufficient by itself, then doubtless they would have remanded him upon that alone; for then they needed not to have stood at all upon the other Part of the Return in this Case: So that out of the Record itself it appears fully that the Court conceived the Return to be insufficient.
"And so the Gentlemen of the Commons House concluded, That they had a great Number of Precedents, besides the Acts of Parliament, agreeable to their Resolution. And there was not One at all that made against them. But indeed that all [ (fn. 10) that was brought,] as well against them as for them (if rightly understood), made fully for the Maintenance of their Resolution. And the Objections being thus made by Mr. Attorney, and the Answers by the Gentlemen of the House of Commons, the Consideration of this, with the rest, was left to your Lordships.
"And then my Lord of Devonshier put Mr. Attorney in Mind of some Things omitted by him, which he had formerly spoken of in this House; which occasioned the Conference next Day; which I leave to the next Two Lords in their Order to report."
"These Three Reports being ended; the Lords Agreed, To hear the rest, which was to be reported by the Earl of Devon and the Lord Bishop of Lincoln, in the Afternoon; but not to enter into Debate thereof until Monday next.
Reformation of Prisoners in the Common Gaols.
E. of Beddford.
E. of North'ton.
E. of Clare.
L. Bp. of Lincolne.
L. Bp. of Sarum.
L. Bp. of Bristol.
L. Bp. of Exceter.
|Lord Chief Justice,||To attend.|
|Mr. Justice Whittlock,|
|Mr. Serjeant Ashley,|
Dean of Yorke, Dr. Hudson, etc. to pay their Fees.
It is this Day Ordered, That, if the Dean of Yorke, or Doctor Hodson, or Henry Wickham, Clerk, or either of them, shall refuse to pay presently, upon Sight hereof, the full Sum of Sixty-five Pounds, Ten Shillings, which was taxed by one of the Masters of the Chancery, for Fees due to the Serjeant at Arms and other Officers of this House; that then he or they, that shall so refuse, do appear presently before the Lords, to answer their Contempt of their Lordships former Order.
E. of Devon's Report of the Conference touching the Liberty of the Subject.
The Earl of Devon reported the Fourth Part of the aforesaid Conference with the Commons, on the 17th of April, concerning the Liberties of the Subject; which consisted of the Arguments made then by Mr. Attorney General and by Mr. Serjeant Ashley, as of Counsel for the King herein: videlicet,
Arguments of the King's Counsel, on the King's Behalf, touching this Point.
"My Lords, and you the Gentlemen of the Commons House, according to your Lordships Directions Yesterday, I made some Relation of Part of that which before, upon the like Commandment, I had spoken before the Lords in their House, upon the Occasion of that Declaration which was sent to the Lords from the Commons House. The Course I then took, as your Lordships may be pleased to remember, was this: After I had first set down the State of the Question between us, and spoken somewhat of the Statutes which were mentioned and insisted upon by that Declaration to maintain the Tenet or Proposition of the Commons concerning their Personal Liberty, I came to the Precedents which were delivered on either Side, and opened the Reasons and Applications of them One by One, and spent that Day on that Part of the Work, as being the most weighty, and that on which my Lords the Judges of the King's Bench grounded their Resolutions and Rule they gave there. That which now remains to be spoken unto, is the Opinions and Resolutions of the Judges and Sages of the Law in former Times, touching this Question, and the Reasons which have been given on either Side to maintain or oppose that which hath been affirmed in this Case. I shall not willingly draw your Lordships back to any Thing which hath been formerly said, but for so much only as is of Necessity; for, before we proceed to these Parts now to be spoken unto, it will be necessary that I do clearly and plainly lay down the true State of the Question, that so we may apply the Resolutions and Reasons ad idem. This is it is delivered in Writing from the Commons House, and stands upon Two Parts. But it is fit to join them together; for they make but One entire Proposition, and are so linked together, and depend one on the other, as they cannot be severed.
"1. The Words of this Proposition are these: That no Freeman ought to be committed, 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.
"2. That, if a Freeman be committed, or detained in Prison, or otherwise restrained, by the Command of the King, the Privy Council, or any other, and no Reason 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 a Habeas Corpus granted for the Party; that then he ought to be delivered or bailed.
"To maintain this as it is propounded, the Words of the Statute of Magna Charta, q. 29, are laid down as a Foundation: Nullus liber Homo imprisonetur (to omit the rest of the Words which are for other Purposes), nisi per Judicium Parium suorum, vel per Legem Terræ. And the Six subsequent Statutes have been read and inforced, as Confirmations and Explanations of that of Magna Charta. I shall not draw your Lordships back further to the Consideration of these Statutes than only to put your Lordships in Mind, that the Statute of Magna Charta doth not contain or express any definitive Words of this Declaration, nor hath it any Words in it more particular than these, nisi per Legem Terræ. Therefore, the Words being general, they had need of some Commentaries, or Helps, to expound them. It hath been said on the other Side, that these subsequent Statutes do expound these general Words, and that per Legem Terræ is to be understood per debitum Legis Processum, by Indictment, Presentment, or Original Writ. Surely, my Lords, that cannot be the true Meaning of these Laws; for then it must necessarily follow that no Offender could justly and legally be committed, or restrained of his Liberty, unless he were first indicted or presented by a Jury, or that an Original Writ be brought against him, which neither is, nor ever was, the Practice of this Kingdom in Criminal Causes; and then could not a Constable, which is the lowest and yet the antientest Officer to the Crown for these Causes, nor a Justice of Peace (but in these Cases only where there is a precise Statute to warrant him), commit One to Prison, or set a Knave in the Stocks, for a just Suspicion, nay if he were taken with the Manner, unless the Fact were first presented or found by a Jury.
"My Lords and Gentlemen, for I speak to those of whom I am sure the greatest Part are Persons of Authority in your Countries, I appeal to you all, whether, if this should be held for a Direction, I may not truly say, in hoc erravimus omnes; and whether it would not be too late, and utterly in vain, to proceed against Offenders, when they must be left at large until the Indictment were first found, or Presentment made against them, for surely they would then provide for themselves, and be gone, when they should be proceeded against. And for a Writ Original in Criminal Causes, I prosess I know not what it means, if it be at the Suit of the King. Therefore, doubtless there is some other Meaning of these Words; and that can be no otherwise understood but of a Legal Proceeding to Judgement or Condemnation; but can in no wise be meant of the First Commitment, or putting into safe Custody, to the End the Party accused may be sure to be forthcoming. But, if ye will vary the Case thus far, as to say that by these Laws no Freeman ought to be committed or imprisoned without just Cause, this I shall agree to be good Law, and shall willingly subscribe unto it, that neither the King's Privy Council, nor the King, nor any other, have Power, that is, have a just and warranted Power, to commit any Freeman without just Cause. But herein stands the Difference, whether this Cause must be always expressed upon Commitment, and whether such Cause so expressed must always be legal and warranted by the strict Rules and Letter of the Law; or whether the Law hath not ever allowed this Latitude to the King, or to His Privy Council, which are His Representative Body, and do what they do in His Name, and by His Power, in extraordinary Cases, to restrain the Persons of such Freemen as, for Reason of State, they find necessary for a Time, without the present expressing of the Cause thereof, which if it should be expressed might discover the Secret of the State in that Point, and might easily prevent the Service by that Discovery.
"What hath been the Use and Practice in all Ages in these Cases appears by the many Precedents which have been remembered and read unto you, of which I shall say no more unto your Lordships than this: It is not the Confidence by which they be delivered or applied on either Side that makes them better or worse, or more or less to the Purpose for which they were brought; and therefore I shall recommend them to your Lordships Memories, and great Judgements and Wisdoms, to weigh them and every of them.
"And now I come to the Authorities and Resolutions of former Times, which have been remembered; there hath been some Mention and Reliance made for this Matter upon the Statute of West. I. Cap. 15. which was made in 3 Ed. I. And this, I said, heretofore did explain this great Doubt. By the Gentlemen of the Commons it hath been much insisted upon, and a great deal of Pains taken to prove, that that Statute was made for Sheriffs and such Inferior or Ministerial Officers, and did not extend to the Judges, who are neither mentioned nor meant thereby. Surely, my Lords, I shall much ease that Pains; for I do agree that that Statute was made for the Direction of Sheriffs and such Ministerial Officers, and for their Punishment when they should offend in Cases of setting Prisoners at large by Plevin: But that which I affirm upon that Statute to this Purpose is this, That, in the Recital of that Statute, it is agreed what the Common Law was before; which is, that in those Cases there mentioned, which are Four, they were not replevisable at the Common Law; if at the Common Law this were so, then it was long before the Statute of Magna Charta; and if it were so at the making of this Statute, then Magna Charta had not altered it; and observe, I pray, that this was made in the Time of the Son, when the Statute of Magna Charta was made but in the Time of the Father; and this Statute of W. I. doth not recite that these Four Sorts were not Replevisables by Sheriffs, but generally that they were not Replevisables at all; amongst which Four, those who are committed by the Command of (fn. 11) the King Himself is one of those Sorts. And this is the same Exposition which I find Mr. Justice Stamford makes of it, who was a Reverend Judge of the Court of Common Pleas in his Time, and at the Time when he wrote the Treatise of the Pleas of the Crown, in which Treatise, Fol. 72. after he hath recited the Statute of W. I. ad verbum, his own Words are thus: By this Statute it appears, that in Four Cases at the Common Law a Man was not replevisable; and these were such as were taken for the Death of a Man, or by the Commandment of the King, or of His Justices, or for the Forest. For the Death of a Man, he faith he had spoken before; and as for the Commandment of the King, it was intended the Commandment of His own Mouth or of His Council, who are incorporated with Him, and speak with the Mouth of the King Himself; for otherwise, if ye will take these Words of a Commandment generally, ye may say that every Commandment by Capias in a Personal Action is such, for there the Words are Præcipimus tibi quod capias; and yet there the Defendant is re plevisable by the Common Law: And as to the Commandment of the Justices, it is intended their absolute Commandment. And in the same Chapter, in the next Leaf, he faith, That, if one be committed by the absolute Command of the Justices, he is not bailable, as if the Justice command one to Prison without shewing Cause, or for Misdemeanor before himself, or for such a Thing as lieth in the Discretion of the Justice more than his ordinary Power. My Lords, I pray observe this Part of his Opinion also, for it makes full against the Tenet of the Commons House, for that goes general, That the King, nor no other, can commit without Cause shewing; which, as here appears, the Justices of the King may do. My Lords, have the Justices this Power and this Latitude? and shall it be believed that the King Himself who is Justitia Regni, who is the Fountain of Justice, may not be trusted with that Power? And that this is the Power of the Justices appears also by another Authority in our Books, in 31 H. VI. Fol. 11. in one David Selbie's Case. The Opinion of that Reverend Judge Fortescue, That, if the Justices do commit a Man without shewing a Cause thereof, or without making any Record thereof, as many Times they did it, shall be intended to be lawfully and well done. And as Mr. Stamford's Opinion is in this Case, so it appears in the Book called The Regists, which is the Book of our Writs, which are the Foundation of all our Proceedings at Law; where, in the Writ of Homine replegiando, it is recited, That there are some Persons which secundum Consuctudinem Angliæ non sunt replegiabiles; and in one of those Writs it is expressly mentioned thus: Nisi captus sit per speciale Præceptum Nostrum vel Capitalis Justiciarii Nostri, etc. And Mr. Justice Fitzherbert, a Great and a Learned Judge, in his Natura Brevium, which is as a Commentary upon The Regists, holdeth the same Opinion.
Rabar, Sheriff of Warwick and Leicester's Case.
"I shall next to this remember unto you the Record of 21 E. I, in Parliament. Rot. 2. which is that of Sheriff of Leic. and Warr. where it is Twice recited, quod nullam faceret Gratiam, meaning in letting to Plevin; so that it appears, by that and by all our Records, that letting to Bail, in all Cases, not expressly directed by some Statute, is ex Gratia Curiæ. If ex Gratia, then it is not ex Debito, for they are Contradictions, and that is contrary to the Tenet of the Commons; for they put a Necessity upon the Judges, that (fn. 12) they must deliver or bail.
"Next to these is the Opinion of Newton, in 22 H. VI. Fol. 52. which is but a single Opinion, and that but obscure and dark; for he faith, that a Man committed by the Command of the King is irreplevisable by the Sheriff, and that is the Scope and Intention of that Book; but some other Words follow, whereof Hold is taken, that the Friends (fn. 13) of the Party may resort to the Justices, and pray a Supersedeas. How this is meant, and by what Means it can be done, and what Supersedeas is intended, is so obscure by that Book, that it will make very little to the present Purpose.
"Next is the Book of 33 H. VI. Fol. 28. the Case of Ro. Poynings, where there is a Return made, That captus or detentus fuit per Dominos or per Duos (take it either way) de Concilio Regis, pro rebus Regem tangentibus. This Book is an Authority in this Point for the King; for the Return is accepted of, and allowed to be good; but I confess ingenuously, I do not much rely upon this Book neither on this Side, because the Matter is not debated at all there, but passeth by Way of Admittance.
Resolution of the Judges; 34 Eliz. touching the Enlargement of Prisoners committed by the Queen or Privy Council.
"The next is the Resolution of all the Judges, in 34 Eliz. where Mr. Attorney read the latter of that which concerneth this general Question; all the former Parts being of Commitments made by particular Counsellors to the Prejudice of particular Persons in their Suits, and many-times in their Executions after Judgement. But this latter Part, as appeareth by the Words, doth agree, that the Courts of Justice ought not to deliver or bail where the Commitment is by the Command of the King or His Council. And touching the Return of the Cause upon a Habeas Corpus, they agree it ought to be either generally or specially expressed. If then a general Expression be enough, it is agreeing with the general Return of per Mandatum Domini Regis; for if it must be special, it must be so special as all the Circumstances must be made to appear to the Court, that they may be able to judge thereof. Therefore that Resolution of all the Judges is, in my Understanding, very plain and clear in this Point; but I submit it to your Lordships Judgements, upon the reading and observing thereof.
Resolution of the Judges, 13 Jac. in Ruswell Case.
"Next is the Opinion of the Judges in 13° Jacobi, in the King's Bench, upon the Debate of Ruswell's Case; and here, by the Way, I must be bold to observe thus much unto your Lordships, that although this be the Report of a Private Student, and not in Print, yet it is such and of that Nature as all other Reports are (being faithfully collected); whereupon we, who are Professors of the Law, do ground Opinions, and whereupon Judges of succeeding Times do ground themselves upon the Opinions of their Worthy Predecessors; and such a Report in Paper and in Print are of equal Authority with us; for these (fn. 14) which are printed by the Labours of these worthy Men who have taken Pains therein were first collected out of such Reports in Paper. The Words of this Report I shall read to your Lordships truly, because they serve to confirm many Passages in these Discourses. The Words are these: "Cooke, Crooke, Doddridge, and Houghton, Justices, did hold, That a Return that one is committed per Mandatum Privati Concilii Domini Regis was good enough, without returning any Cause; for it is not sit that Arcana Imperii should be disclosed."
"And as to the Case of Harccourt, in 40 Eliz. (a Case remembered amongst the Precedents cited before), where, in the Time of Popham, Chief Justice, one (fn. 15) was in The Tower for High Treason, and was bailed upon a Habeas Corpus sent for him; this was by a special Commandment of the King, or of the Privy Council, and not otherwise; and now of late Time, when one was committed to Prison for the Powder Plot, he was bailed by them upon a Habeas Corpus, but this was by Letters of the Privy Council, which gave Warrant so to do, which Letters are filed in the Crown Office (my Lords, these are the Letters which concerned Beckwith and Reyner, which have been read already to your Lordships). They said further, that in 34 Eliz. it was resolved accordingly by all the Judges of England, That the Cause of the Commitment should not be returned; and therefore, where Sir Samuell Saltenstall was returned to be committed per Mandatum Privati Concilii Domini Regis, the Court would not meddle with him, but held the Return sufficient enough; and Sir Edward Cooke, being then Chief Justice of that Court, said, That if the Privy Council commit one to Prison, he is not bailable by any Court of England, for where the Statute of W. I. faith, That he which is committed to Prison by the Commandment of the King cannot be let to Mainprize, Stamford makes the Interpretation, that by the King is well intended His Privy Council, who are the Representative Body of the King; and he said that he knew a Bill put in by Mr. Morrice, Attorney of the Court of Wards, into Parliament, by which it was desired, that the Statute of Magna Charta, Cap. 29. might be explained. My Lords, by the Words of this Case thus reported, and by the Opinion of those Reverend Judges, ye see how many Things before cited have Authority and Life given unto them, not only in the main Point in Question, but in the Reason thereof; and the Reason of Harecourt's Case, the true Reason of Beckwith's and Reyner's Case; the true Meaning of the Resolution of 34 Eliz. by all the Judges, which is now endeavoured to be turned into another Sense; the Exposition of the Statute of Westm. I; and the Interpretation of Stamford thereupon; and, lastly, that a Bill was preferred in Parliament, to explain the Statute of Magna Charta; and so I wish with all my Heart that, by the Wisdom of both the Houses, a fitting Bill might be preferred, to compose and to settle well and equally this great Question.
"Next I come to the Opinion delivered in the Parliament House in 18 Jac. whereof I made some Mention before your Lordships in my Argument, and now am put in Mind to remember it by an Occasion offered Yesterday by one of my Lords, in mentioning of it. It was the Word of this Learned and Reverend Gentleman Sir Edward Cooke, upon whose Opinion I have much grounded myself. It (fn. 17) was upon Occasion of a Bill then preferred in Parliament, intituled, "An Act for better securing of the Subjects from wrongful Imprisonment, contrary to Magna Charta," Cap. 29. This Bill came to have his second Reading in the House 5 Maii, 19° Jac. I being then a Member of that House. Upon that Occasion, Sir Edward Cooke stood up, and said thus (I have a Note of the very Words), There are divers Matters of State, which are not to be comprehended in the Warrant, for they may be disclosed; one committed by the Body of the Council not bailable by Law, resolved so by all the Judges in Wraye's Time (that, my Lords, is the Resolution of 34 Eliz. when Wray was Chief Justice), upon the Commitment of the King, or the Body of the Council; for this is out of the Statute of Magna Charta.
"My Lords, that this may appear it was not a sudden Opinion, this being 5 Maii; on 28 May after, this Bill was again offered to the House, to be recommitted; and then Sir Edward Cooke spake to it again, and said, That in 33 H. VI. upon a Habeas Corpus, where the Party was imprisoned by Two Privy Counsellors pro rebus Regem tangentibus, that being the Return, it was allowed (this, my Lords, was Poyning's Case, before cited). And he said further, That it was so held in Queen Elizabeth's Time, by the Judges, where the Commitment is by the Privy Council; and he thinketh it reasonable, and moved, That the Bill might be re-committed; and so it was, or rather it was committed perpetually, for no more was done upon that Bill.
"My Lords, I have now done with these Opinions and Resolutions, saving that I must crave your Leave thus far to put you in Mind of the many Precedents your Lordships have heard; for every one of them is also a Resolution of these Judges, which gave the Rule in these several Cases.
"My Lords, I come now to the last Part, which are the Reasons which have been offered on either Side; wherein I shall not trouble your Lordships long. The Reasons delivered on the (fn. 16) other Part have been many, collected and applied with a great deal of Art and Judgement. It is not my Purpose to answer every of them particularly, but I shall number them as near as I can call them to Mind, and sum them up together, and then give them an Answer, and so come to such as I shall humbly offer on the other Side. It hath been said by that Learned and Worthy Gentleman who delivered those Reasons:
"4. That the least Corporal Punishment is greater (fn. 17) than the greatest Pecuniary; therefore, if the King cannot inflict the less, as the assessing of a Fine, he cannot do the greater, which is the imprisoning of the Body.
"Arguments were drawn, a fine, ab bonesic, ab utili, a tuto. And, lastly, Two Authorities were remembered by him. All these Reasons I shall, with your Favours, reduce to one general Head, the Liberty of the Free Subject of this Kingdom, which is of great Esteem, and is the Inheritance of the Subject. I acknowledge it to be very true that which hath been said thereupon; and I am also of his Mind, that he is not worthy to enjoy his Liberty, which would not by all good Means endeavour to preserve it and maintain it. I know it is a plausible Argument; but I shall humbly desire to lay in the other Seale these Reasons, which I shall offer unto you on the other Side, why the Personal Liberty, desired in such Sort as is desired by the Declaration of the Commons, cannot possibly be allowed of, in that Latitude therein set down. But, before I come to these Reasons, I shall crave Leave to remember unto you the Case of 86 H. III, in Parliament, and the other Two Authorities which were cited by this Reverend Gentleman.
"And, my Lords, by the Way, whereas an Inference was made on the other Side, out of the Record of a Petition in Parliament 36 Ed. III. N. 9. where the Petition is in French, That the Commons pray that the Statute of Magna Charta, and the other Statutes, might be duly observed, sauns Disturbaunce mettre, ou Arest faire al incountre, these Words have been expounded to extend to Personal Arrest of the Subject; but I conceive the Sense of the Words cannot bear that Exposition; for the true understanding of those Words must needs be thus understood, that Magna Charta and the other Statutes be put in due Execution, without any Disturbance or Delay made, or Hindrance made to the contrary; and to these the King made a full Answer, That it should be done as was desired; and I shall willingly subscribe thereunto also; and (fn. 18) for the Truth of this Exposition, I submit myself to the Judgement of my Lords, who are much better able to judge of the true Meaning of the French Words than I am.
"One was that of 28 H. VI. N. 16. The Commons in Parliament desired, that the Duke of Suffolke might be committed. The Lords and Judges answered, He ought not to be committed without a Cause shewed My Lords, I acknowledge this to be a very just Resolution: But give me Leave, I pray you, to observe, by the Way, that here the Commons in Parliament preferred a Request to the Lords; which, upon better Examination of the Justness of it, was denied by the Lords (being assisted by the Judges) to be yielded unto; and for the Resolution itself, it was very just and honourable; for it were not reasonable for a Court of Justice, especially so high and so great a Court as the Court of Parliament, to commit any to Prison without a just Cause. But, my Lords, whether this can be fitly applied to the Case of the King, or the Lords of the Council who commit for some great Cause in Reason of State, until a due Examination may be had of the Cause, I humbly submit to your Judgements.
"The other was out of the Acts of the Apostles, Chap. xxv. the last Verse, where Festus, being then Viceroy or Deputy to the Emperor, and having in Purpose to send Paule to Cesar said, he thought it unreasonable to send him and not to send with him the Cause of his Commitment. My Lords, I acknowledge it to be a very discreet Resolution of Festus, who, although he were a mere Moral Man, yet he held (fn. 19) it a wise and a discreet Position, not to send a Prisoner to Cesar, his Superior, to whom he was to give an Account, and not to send with him the Cause for which he should be tried, and of which he was accused. But, my Lords, whether this do prove any Thing in our Case in Question, I humbly refer it to your Judgements, where not the Inferior to his Superior, but the Superior to the Inferior sends the Prisoner, to whom he is not bound to give that Account.
"And now, my Lords, I come to the Reasons, which I shall humbly offer on the other Side, against this Tenet of the Commons House, in such Manner as it is laid down; wherein I must first crave Leave to lay before you what Conclusions do necessarily follow out of this Proposition of the Commons.
"1. First, If the Cause of the Commitment must be laid down, then necessarily it must be affirmed that this must be the true Cause, and not a false or feigned Cause; for that were worse than to express no Cause at all.
"3. Thirdly, It must be expressed so fully, as that the Court must be able to judge of it; else an uncertain Cause, or set down so lamely as will not give full Satisfaction to the Court, is as bad as none at all.
"Lastly, It must be a legal Cause; such a one as, by the fundamental Rules of Law, the Judges must judge that it is a good Cause of Commitment or Detainer, or else they must presently discharge or bail.
"Then, upon these Premises, doth this Conclusion necessarily follow, That, in no Case whatsoever, may any Man be committed, or restrained, for any Thing never so much concerning the State, but that forthwith the Keeper of the Prison must be made acquainted with the Cause so fully as that he may truly, and without any Variation, inform the Court thereof when it shall be required, and that Cause must hold the strict Examination and Trial of the Law; which if it should be admitted, your Lordships shall see by and by what infinite Peril it might bring, not only to the Persons of private Men, which are not to be neglected, but to the whole State, the very Fabrick and Frame of Government under which we live. But it hath been objected, that, if the King or the Council may commit without shewing a Cause, it would be infinite full of Mischief; for, as the King may commit One, so he may commit any or many; as he commit for a just Cause, so he may commit without a Cause; as he may commit for a Time, so he commit to perpetual Imprisonment. To this I answer, That it cannot be imagined of the King, that He will, at any Time, or in any Case, do Injustice to His Subject. It is a Maxim in our Law, That the King can do no Wrong. Therefore the King can gain no Land by Diffeisin, as in 1 Ed. V. Fol. 8. He can gain no Advowson by Usurpation, as in 32 H. VIII. Fol. 48. And this is so far from being a Defect or Impotency in the King, as it is held for a Point of His Prerogative, as it is held in the Lord Barkcley's Case in Mr. Plowden's Commentary. The Reason is, as the King is the Supreme Governor of His People, so He is Pater Patriæ, therefore He cannot want the Affections of a Father towards His Children.
Owen's Case; a Conspirator against Queen Elizabeth.
"And now, my Lords, I shall instance in some Cases of Importance, wherein, for a Time, one may and must be imprisoned, and yet the Cause not presently rendered of it; as in the Days of Queen Eliz. which many of my Lords cannot but call to Mind, there was a great Conspiracy against the Person of the Queen; some were committed, and laid hold on, and imprisoned, but they could not be proceeded against, nor was it safe to reveal it, until one Owen, a Priest, living then at Bruxells, could be caught. This asked a long Time, above a Year, to bring to pass; at last, by a Wile, he was laid Hold upon, and brought over: If so much as the general Cause had been published, it would have been more difficult to have gotten Owen; and haply without him the Plot could not have been discovered: Would any Man have thought fit, that in this Case the others should in this mean Time have been set at Liberty? and I appeal to the Judgements of my Lords, whether there be not also a Necessity in State sometimes to give forth one Thing for a Pretence, to secrete the true Intention of the Action?
O'Donnell's Case; an Irish Rebel.
"I shall give you another Instance, in the Troubles in Ireland. O'Donell, an Arch-rebel, was slain: His Sons, being then Infants, were brought over into England, and committed to The Tower, and lived (fn. 19) there all their Lives after. Admit these were brought to the King's Bench by Habeas Corpus, and the Cause returned, what Cause can there be which would hold in Law? They themselves neither had done nor could do any Offence. They were brought over in their Infancy. Aye, but their Father was an Archtraitor. Is this a legal Cause of detaining the Son in Prison? yet would any Man believe that it were safe, that it were fit, to deliver these Persons? Yet this general Tenet admits of no Exception. Infinite other Examples might be given. How often do we see the State interposeth, in ordering the Government of Trades, of Companies, of Private Corporations, and with very good Success? for the Peace of those Petty Governments doth preserve the Peace and Quiet of the great Frame of the Commonwealth; and yet the Common Law can give no Rule in these Things.
"Upon this Occasion, I have looked into some Acts of State in Queen Eliz. Time, which I shall be bold to offer to your Lordships Judgements. In the Times of Dearth, lest the Poor should starve and perish, the Farmer is commanded to bring forth his Corn, to serve the Markets, to sell at a reasonable Price. Is there any Law to order or compel this? Yet is not this fit to be done? In Queen Eliz. Time, before any Law made against Jesuits or Seminary Priests, before any Law made for confining of Popish Recusants, by Acts of State one Sort were, and some imprisoned, the other confined, in Times of Danger; had it been fit to have delivered or bailed these upon a Habeas Corpus?
"But the true Answer for these and the like Cases is, This is not contrary to the Laws. God hath trusted the King with governing the whole. He hath therefore trusted Him with ordering of the Parts; and there are many Cases of infinite Importance to the Subject, and of undoubted Trust, reposed in the King, wherein notwithstanding it was never questioned by a Subject of the King why He did thus or thus. As the King is trusted with the Coins and Monies of the Kingdom, of His absolute Power, He may abase, He may inhance them; He may turn our Gold and Silver Money into Brass or base Money, and in one Instant undo his People thereby. The Answer is, He will not do it: He is trusted. He may make Wars, He may conclude Peace or Leagues. These are fatal to the whole Kingdom, to the Liberties, and to the Lives of His Subjects. The Answer is, He will not do these unfitly, for the Hurt of his People. Again, He hath Power to pardon Traitors and Felons. The good People of the Land may say too great an Extent of Mercy may discourage and hurt them; the Good may be devoured of the Bad: But the King will not do Hurt to His People thereby. The King hath Power, without Number or Limitation, to make Strangers to be Denizens. It may be said that this may eat out the Natural Free-born Subject, if a Flood of Strangers should be let in, to eat up the Bread of the Natural-born Subject. It receives the same Answer: The King will not break the Trust committed unto Him by God. But, my Lords, do I by this say, or maintain, that a King hath Liberty to do what He list? No, God forbid. He is set over His People for their Good; and, if He do transgress, and do unjustly, there is a greater than He, the King of Kings: Respondet Superiori. And, as Bracton, an old Writer of the Law, said, Satis ei sufficit ad Pænam quod Dominum expectet Ultirem.
"So I humbly conclude that these Gentlemen of the Commons House have done like true Englishmen, to maintain their Liberties by all the good and fit Means they may; and myself, as one of the Number, shall desire it likewise. But I fear also they have done like right Englishmen; that is, as we usually say in our Proverb, They have overdone; they have made their Proposition so unlimited, and so large, that it cannot possibly stand, but is incompatible with that Form of Government, which is a Monarchy, under which we happily live."
"I hope it will be neither offensive nor tedious to your Lordships, if I say somewhat to second Mr. Attorney; which I rather desire, because Yesterday it was taken by the Gentlemen that argued on the Behalf of the Commons, that the Cause was as good as gained by them, and yielded by us, in that we acknowledged the Statute of Magna Charta, and the other subsequent Statutes, to be yet in Force; for on this they inferred this general Conclusion, That therefore no Man could be committed or imprisoned but by due Process, Presentment, or Indictment; which we say is a non sequitur upon such our Acknowledgement; for then it would follow, by necessary Consequence, that no Imprisonment could be justifiable but by Process of Law, which we utterly deny; for in the Case of the Constable, cited by Mr. Attorney, it is most clear, that, by the ancient Law of the Land, a Constable might ex officio, without other Warrant, arrest and restrain a Man, to prevent an Affray, or, in the Time of the Affray, to suppress it; and so is the Authority in 38 H. VIII, Brooke's Abstracts. So may he, after the Affray, apprehend and commit to Prison the Person that hath wounded a Man that is in Peril of Death, and that without Warrant or Process, as it is in 38 Ed. III. Fol. 6. Also any Man, that is no Officer, may apprehend a Felon without Warrant or Writ, and pursue him as a Wolf, a common Enemy to the Commonwealth, as the Book is, 14 H. VIII. Fol. 16. So may any Man arrest a Night-walker, because it is for the common Profit, as the Reason is given 4 H. 7. Fol. 18. And so may a Watchman, 4 H. VII. Fol. 2. In like Manner the Judges, in their several Courts, may commit a Man, either for Contempt or for Misdemeanor, without other Process or Warrant; then take him Sheriff, or take him Marshal or Warden of The Fleet, and the Adversary will not deny; But, if the King will alledge, He may commit a Man only by his Mandatum, as the Judges do without (fn. 20) other Process or Warrant. And various are the Cases that may be instanced, where there may be a lawful Commitment without Process; and therefore the Words in the Statute, per Legem Terræ, cannot be restrained to so narrow Bounds as to Imprisonment by Process. Wherefore I do positively, and with Considence, affirm, That, if the Imprisonment be lawful, let it be by Process or without Process, it (fn. 21) is not prohibited by this Law; which being granted, then the Question will aptly be made, whether the King or Council may commit to Prison per Legem Terræ? and if they may, whether of Necessity they must alledge a Cause?
"To deliver this, we must consider what is Lex Terræ, which is not so strictly to be taken as if Lex Terræ were only that Part of the Municipal Law of this Realm which we call the Common Law; for there are divers other Jurisdictions exercised in this Kingdom, which are also to be reckoned the Law of the Land. As in Cawdrey's Case, in the 5th Report, Fol. 8. The Ecclesiastical Law is held the Law of the Land to punish Blasphemies, Apostacies, Heresies, Schisms, Simony, Incest, and the like, for a good Reason there rendered; videlicet, That otherwise the King should not have Power to do Justice to Subjects in all Cases, nor to punish all Crimes within His Kingdom.
"The Admiral Jurisdiction is also Lex Terræ, for Things done upon the Sea; but, if they exceed their Jurisdiction, a Prohibition is awarded upon this Statute of Nullus Liber Homo, by which it appears the Statute is in Force, as we have acknowledged.
"The Martial Law likewise, though not to be exercised in Times of Peace, when Recourse may be had to the King's Courts, yet in Time of Invasion, or other Times of Hostility, when an Army Royal is in the Field, and Offences are committed which require speedy Reformation, and cannot expect the Solemnities of Legal Trials; then such Imprisonment, Execution, or other Justice done by the Law Martial, is warrantable; for it is then the Law of the Land, and is Jus Gentium, which ever serves for a Supply in Defect of the Common Law, when ordinary Proceedings cannot be had.
And so it is also in the Case of the Law Merchant, which is mentioned 13 Ed. IV. Fol. 9 and 10. where a Merchant Stranger was wronged in his Goods, which he had committed to a Carrier, to convey to Southampton, and the Carrier embezzled some of the Goods; for Remedy wherein the Merchant sued before the Council in Star-chamber for Redress. It is there said, That Merchant-Strangers have the King's safe Conduct for coming into this Realm; therefore they shall not be compelled to attend the ordinary Trial of the Common Law; but, for Expedition, shall sue before the King's Council, or in Chancery, de die in diem and de bora in horam, where the Cause shall be determined by the Law of Nature.
"In like Manner it is in the Law of State; when the Necessity of State requires it, they do and may proceed according to Natural Equity, as in those other Cases; because, in Cases where the Law of the Land provides not, there the Proceedings may be by the Law of Natural Equity; and infinite are the Occurrents of State unto which the Common Law extends not; and, if this Proceeding of State should not also be accounted the Law of the Land, then do we fall into the same Inconvenience mentioned in Cawdrye's Case, that the King should not be able to do Justice in all Cases within His own Dominions.
"If then the King or His Council may not commit, in must needs follow, that either the King must have no Council of State, or, having such a Council, they must have no Power to make Orders or Acts of State; or, if they may, they must be without Means to compel Obedience to those Acts; and so we shall allow them Jurisdiction, but not Coercion, which will be then as fruitless as the Philosophers frustra Potentia que nunquam reducitur in Actum; whereas the very Act of Westm. I. shews plainly that the King may commit, and that his Commitment is lawful, or else that Act would never have declared a Man to be irreplevisable when he is committed by Command of the King, if the Lawmakers had conceived that his Commitment had been unlawful. And Divine Truth informs us, that Kings have Their Power from God, and are Representative Gods; the Psalmist calling Them the Children of the Most High, which is in a more special Manner understood than of other Men; for all the Sons of Adame are, by Creation, the Children of God, and all the Sons of Abraham are, by Recreation or Regeneration, the Children of the Most High. But it is said of Kings, They are the Children of the Most High, in respect of the Power that is committed unto Them, who hath also furnished Them with Ornaments and Arms fit for the exercising of that Power, and given Them Scepters, Swords, and Crowns; Scepters to institute, and Swords to execute Laws, and Crowns as Ensigns of that Power and Dignity with which They are invested. Shall we then conceive that our King hath so far transmitted the Power of His Sword to Inferior Magistrates that He hath not reserved so much supreme Power as to commit an Offender to Prison?
"10 H. VI. Fol. 7. it appears that a Steward of a Court Leet may commit a Man to Prison; and shall not the King, from whom all inferior Power is derived, have Power to commit? We call Him the Fountain of Justice; yet, when those Streams and Rivulets which slow from that Fountain are fresh and full, we would so far exhaust that Fountain as to leave it dry. But they that will admit Him so much Power as to commit, do require the Expression of the Cause. I demand then whether they will have a general Cause alledged, or a special; if a general, as (fn. 22) they have instanced for Treason, Felony, or a Contempt, for to leave fencing, and speak plainly as they intend it; if Loan of Money should be required and refused, and thereupon a Commitment ensue, and the Cause signified to be for a Contempt, this being an equal Inconvenience from yielding, the Remedy is sought for; then the next Parliament there would be required the Expression of the particular Cause of Commitment. Then how unfit it would be for King or Council, in all Cases, to express the particular Cause, is easy to be judged when there is no State, or Policy of Government, whether it be a Monarchical (fn. 23) or any other Frame, which hath not some Secrets of State not communicable to every vulgar Understanding. I will instance but in one: If a King employ an Ambassador to a Foreign Country or State, with Instructions for his Negotiation, and he pursues not his Instructions, whereby Dishonour or Damage may ensue to the Kingdom; is not this Cause of Commitment? and yet the Particular of his Instructions and the Manner of his Miscarriage not fit to be declared in the Warrant to his Keeper, nor by him to be certified to the Judges, where it is to be opened and debated in Presence of a great Audience?
"I therefore conclude, That, for Offences against the State, in Cases of State Government, the King or His Council hath lawful Power to punish by Imprisonment, without shewing particular Cause, where it may tend to the disclosing of the Secrets of State Government. It is well known to many that know me, how much I have laboured in this Law of the Subjects Liberty very many Years before I was in the King's Service, and had no Cause then but to speak ex Animo; yet did I then maintain and publish the same Opinion which now I have declared, concerning the King's supreme Power in Matters of State; and therefore cannot justly be censured to speak at this present only to merit of my Master. But, if I may freely speak mine own Understanding, I conceive it to be a Question too high to be determined by any legal Decision; for it must needs be a hard Case of Contention when the Conqueror must fit down with irreparable Loss; as in this Case, if the Subject prevail, Liberty but loses the Benefit of that State Government, without which a Monarchy may too soon become an Anarchy; or, if the State prevail, it gains absolute Sovereignty, but loses the Subjects not their Subjection, for Obedience we must yield, though nothing be left us but Prayers and Tears; but it loses the best Part of them, which is their Affections, whereby Sovereignty is established, and the Crown firmly fixt on His Royal Head. Between Two such Extremes, there is no Way to moderate, but to find a Medium for Accommodation of the Difference, which is not for me to prescribe, but humbly to move your Lordships, to whom I submit it."
Serjeant Ashley not authorized by the Lords to speak in this Manner.
"Here, my Lords, Mr. Serjeant ending his Speech; my Lord President said this to the Gentlemen of the Commons House, That though, at this free Conference, Liberty was given by the Lords to the King's Counsel to speak what they thought fit for His Majesty's Service, yet Mr. Serjeant Ashley had no Authority nor Direction from them to speak in that Manner he hath now done."
The Bishop of Lincoln's Report of the Conference touching the Liberties of the Subject. Managers for the Commons Reply to the Arguments advanced by the King's Conselontis Point. Mr. Littletons.
Mr. Littleton began; and he said, This was a great Cause, and peradventure the greatest that ever was in Christendom: Nothing so proper to a private Court as to the Court of Parliament. They brought with them sufficient Authority to justify what is said already. But, if any new Matter was offered, as he conceived some Part of Mr. Serjeant's to be, he was only Aurium Dominus, and brought no more than Ears to hear it; but had a Tongue without, to answer to any Thing (fn. 24) that was in Debate, and the proper Subject of the Discourse. And here he entered a Protestation, in the Name of the House of Commons, That their Intent was not to call in Question the Power of the King, as well to commit as to bail, but to regulate it: For his Method, he said, that because they were opposed suddenly, they would collect the Oppositions according unto Law, and then reply unto them. He said, They themselves were Gentlemen, the unworthiest of the House of Commons, and not the most eminent of their Calling; but yet they maintained the clear Resolutions of the House of Commons; so that this Controversy, which remains as yet but in the Nature of a Disputation in this House, is already grown and improved to a full Resolution in the other House.
"Mr. Attorney began with Magna Charta, the Subject of this Disputation; that is, some general Words in the same not rightly interpreted, and in particular what this Lex Terræ meant. Mr. Attorney assented, this Statute concerned the King as well as the Subject, yea the King principally; but he doth not understand by this Lex Terræ what we do, but a general Law. You (faith he) will have no Man arrested, but by Writ Original. We never said so, faith the Gentleman; we never restrained the Process of the Law to the Writs Original; but by the Process of the Law, we understand the whole Proceedings of the Law, and so take in the Constable and all those Inferior Ministers of Justice, who notwithstanding are never used without a Cause, as the Constable executes his Office when an Affray is done, or feared to be done. So in Bagg's Cause, 11 Reports, Fol. 99. Lex Terræ is extended to the Jurisdiction of Courts, and so involves all Proceedings in Law; nay, he said the Learned Gentleman near him extended the same to a Wager in Law, 10th of his Reports. This Process doth include an Original Writ; and so goeth the Authority of 42 Ed. III, that due Process of Law must be taken for Original, as a Part, not as the whole Proceeding of the Cause.
"Mr. Attorney's next Objection, That the King was not bound to express, because there may be Matters of State, Fear of revealing; and this Expression must be done instantly, and must be true and unchangeable. Answer: They do not require a particular, a general Cause will serve the Turn; Treason, Suspicion of Treason, Felony; there are many Vitia sine Nomine, like those in Aristotle. Every Species hath a proper Name, and what Inconvenience to express one of these? Objection: If the Cause be expressed, then presently upon the Habeas Corpus, the Party must be delivered or bailed, nay indeed delivered, if the Cause be of that Nature. Responsio: Commitments are of a double Nature; superior, as from the King and Council; and here the Judges in Discretion or Respect are not presently to deliver, but to bail; inferior and lower, and here they are to deliver him. Mr. Attorney cited for his Author in the Law the Statute of Westm. I. C. 15. which, faith the Gentleman, non ponit, sed supponit, makes no Law, but declares a Law. All that is pertinent in the same is the Recital, That a Man is not replevisable in the Death of a Man, Matter of Forest, Command of King, and Command of the Judges. Here he denied replevisable and bailable to be all one; they differed in Nature and Place. In Nature; for Replevin is by Sureties, Manucaptores, which they call Plevins; Bailing is delivering to the Hands of other Men, which still hold him in Prison if they please. Then they differ in Place: Bailing is ever in a Court of Record, and to answer Body for Body; Replevin is in a Sheriff's Return. For this Difference, he offered a Book Case, 33 et 36 Ed. III. Placito 12° et 13°. But, were they all one, yet this Statute is restrained to the Sheriffs alone, which he proved out of the First Words thereof: And forasmuch as Sheriffs and others which have taken and kept in Prison, &c. Others can never reach unto Judges. For dignissimum in suo genere, the best, by all Course, is first 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. He quoted for this, 31 Ed. I. Title Droit, Fol. 67. So 13 Eliz. C. 10. these Words, and others having Spiritual Promotions, coming after Colleges, Deans, and Chapters, shall not comprehend Bishops, that are of a higher Degree, quoted for the Archbishop of Canterburye's Case, 2 Reports, Fol. 46. Besides that this Word others is expounded by this Statute, in the Conclusion, to comprehend Under-sheriffs, Constables, and Bailiffs, such as kept Men in Prison; replevisable and not replevisable are Voces Artis, a proper Language to a Sheriff. 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. Strange! not the Judges able to discharge their own Commands? Also this was meant of Sheriffs, appears by the Recital of 27 Ed. I. C. 3. De Finibus levatis. And so likewise by Fleta, Lib. ii. C. 52. in the Articles of the Charges in the Sheriff's Turn, he hath one de Replegiabilibus injuste detentis et Irreplegiabilibus dimissis; and before, qui debent per Plegios dimitti, qui non declarat hoc Statutum, saith Fleta, speaking of this very Statute. Besides that, they have an express Book for it, 22 H. VI. Fol. 46. where Newton delivers this Opinion, "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 Commandment of the King, he is irreplevisable; but, in such Cases, his Friends may come to the Justices for him, &c." Objection: Stampford, a Learned Judge, but speaks nothing to this Question, or against the Declaration of the House of Commons. He bade Mr. Attorney read the Sentence entire, and then he should find that the Word Sheriff must reach to all, or Stampford knew not what he said. He read it, and concluded that this Word Shirereeve must either relate to all, or else he had not expressed his Opinion. Mr. Attorney's Objection, 31 H. VI. Fol. II. Fortescue's Opinion, That, in a Commitment made by the Judges, we ought to presume the Cause just. Answer: The Commons do so presume of every one committed by the King or Council; but the Question is, if the Cause ought not to be expressed, that it may so appear. The Place in the Register, De Homine replegiando, he said, was answered before.
Sheriff of Warwick and Leicester's Case.
"To that Record, 21 Ed. I. Rot. 2. Revis's Case, where the Sheriff of Warwick and Leicester was censured in Parliament, for replevying a Man committed by the Earl of Warwick, when the King had given him a general Command to shew no Favour to any committed by that Great Peer. Answer: That the Sheriff was justly punished; for the Party was not replevisable by the Sheriff, but bailable by the Justices, 22 H. VI. By the King's Mouth, whereby none can be committed, he understands also the Council, which are His Mouth, and incorporated with the King, as you heard out of Stampford, 33 H. VI. Fol. 28, 29.
"Robert Poins Case; he denied it was urged for them, but relied upon by Mr. Attorney for the contrary Opinion. Yet Mr. Attorney consessed it proved nothing. The Parries in this Case, committed per Dominos de Concilio, never desired, nor were ever denied, Bail or Liberty. Confessed by Mr. Attorney.
"Out of 34 Eliz. containing the Resolution of all the Judges, he read some Part, and shewed Judge Anderson's Book under his own Hand; insisted upon some Words that implied the Cause ought to be expressed; and concluded, That it was either for their Tenet, or not against it; for that Assertion that Bailing was ex Gratia Curiæ, he granted it true in many Cases, as where the Cause doth appear, and the Judges hold it fit to make some Stay; but not where no Cause is shewed. It may be Grace, said he; yet it is the constant Practice of the Court. And herein he appealed to those Precedents offered unto your Lordships out of the Close Rolls.
"The Report of 13 Jacobi, which is called Ruswell's Case, taken by a young Student, is a Callimaufry of Three or Four Cases huddled together, and put as it were into a Hotch-pot. Others interpret it for a sudden remittitur at the Rising of the Court; and you must note also that Ruswell was never returned to this Court again. If a Man delivers an Opinion of a sudden, that is nothing to the Case in Hand. Judges (as the Students find in their Year Books) have changed their Opinions, and given better Reasons for their contrary Assertions than their Fellows were able to do. And that Passage in Parliament 18 Jac. was but a sudden Ejaculation, grounded upon 33 H. VI, which was nothing material.
"For that Place, 16 H. VI (Monstre de Faits), he answered, That of their Authorities some are nearer the Question, some further off, yet applicable. It is the Dignity and Honour of the King, neminam a se tristem dimittere; to act these Severities not by Himself, not by His own Mouth, but by Minisierial Officers. Kings have sitten in Their Bed of Justice, as Ed. IV in a Trial of Rape at the King's Bench; yet did He not pronounce the Sentence, but left that to His Justices. It is the Honour of the King to command none to Prison, but leave it to His Inferior Ministers of Justice.
"To that of 1 H. VII. Fol. 4. Husseye's Report of Markham, That he told Ed. IV, he could not command one to carry any to Prison; he said it was a Rule in Law, That the King can do no Wrong; but, if He should command one to be arrested without Cause, then He might be Author of Wrong; and therefore that is denied Him. He touched that Place of Fortescue, Proprio Ore nullus Regum Angliæ, &c. Here he desired to be rightly understood; for they of the House of Commons do not exclude the Commandments of the King, for they confess all that are imprisoned are by His Commandment, but with a Cause expressed.
"He said, That 36 Ed. III. N° 9. is not in Print.He saith, That he was in France, and that there he had read many of their Books; and he appeals to any and understand the Language, if ou arrest faire doth not signify to arrest, and not to delay by Commandment of the King.
"Concerning Mr. Serjeant Ashley, he said, That for Matter of Law he was authorized to answer him. He here objected, That the House of Commons did think they had gained the Cause, because the King's Counsel had yielded the Statutes to be in Force. Alas! saith he, we do not labour for Victory, but for Truth. Change our inward Parts with better Reason, and the Cause shall be yours. Mr. Serjeant understood per Legem Terræ, many Laws here in England, Martial, Admiral, Ecclesiastic, and that 13 Ed. IV, called Merchant Law. To the which the Gentleman replied with some Acrimony, and a Challenge to any Man living to shew that Lex Terræ should be spoken of any but the Common Law, in any Law Books, Statutes, or ancient Records, and so closed up his Discourse."
Sir Edward Cooke's Reply.
"He said, that, as the Center of the greatest Circle is but a little Prick, so the Matter ever lies in a little Room; but weighty Businesses are still spun out to a high Length. This, he said, was more weighty than difficult. His Part was little; he would run over Mr. Attorney's Reasons briefly, et summa sequar (faith he) vestigia rerum. This Tenet of theirs was expressed shortly and significantly. It was a Wonder for him to hear that the Liberty of the Subject should be thought incompatible with the Regality of the King. Nihil tam proprium est Imperii quam Legibus vivere, faith he, out of Bracton: Nay further, Attribuit Rex Legi quod Lex ei; Dominium enim et Imperium exerceri sine Lege non potest. First, he said, Mr. Attorney seemed to intimate, that, in this speciale Mandatum, a Cause should be conceived to blind the Judges, when another Matter was intended; he had heard indeed of that Sentence, qui nescit dissimulare, nescit regnare; but he held it no good Divinity. For David, Psalm cxix, desires a found Heart; that is, a Heart without Dissimulation: Ergo, no King should covet to dissemble in His Mandates.
"Then, for that Case of Rebellion in Ireland, he said it was indeed bona Terra, mala Gens: But he said O Donnell's Children lost nothing by the Bargain, periissent nisi periisent; for they were better brought up here in the true Religion instead of Popery. Besides, they had lost all, even their Blood was tainted; it was Charity to keep them. A strange Proviso, that a Thing happening once in an Hundred Years should overthrow and mar so many Statutes, in continual Use, against the old Rule, ad ea quæ frequentius accidunt Jura adaptantur; and he never heard of such an Objection.
"In the next Reason, he said, Mr. Attorney came close to him; and he said he was glad he had awaked him. A King is trusted in greater Things, War, Money, Pardons, Denizens, etc. Ergo nego (faith he), for the Liberty of the Person is more than all these, maximum omnium humanorum bonorum, the very Sovereign of all human Blessings, Yea, but the King may make Money of Brass (faith Dionisius Halicarnasseus) or other base Metal; as he heard Queen Eliz. say that her Father, King Henry the Eighth, did hope to live so long till he saw his Face in Brass, i. e. in Brass Money. He said, this was a main Point, and that whatever the King's Power was by the Common Law, yet was it qualified by Acts of Parliament, and no Man will deny but the King may limit Himself by Acts of Parliament. He cited 9 Ed. III, c. 4. 3 H. V, c. I. that the Money must be of Weight, Sterling: Ergo, now it must be of the Lay and Fineness of Sterling. In another Statute, de Dimissione Denariorum, it is required the Coin should be de legali Metallo; ergo, not illegitimate. Why must the King have the Mines of Gold in my Land, but for the Use of His Mint and Coining? He cited also a Law of King Edgar, c. 8, and of Canutus, c. 8, That no Money should be current but of Gold and Silver. And for Pardons, they are also limited in wilful Murther, as he proved out of 4 Edw. III, and 25 Ed. III; and this he said by the Way.
"Now his Part, he said, was short; he had before expressed what Books and Warrants they had for their Tenet. If he be a little more earnest than seems fitting, he craves your Lordships Pardon; it concerns him near. He takes Occasion here to say, under Reformation, his Reasons were not answered, or not fully.
"I. He touched upon his Reason from Imprisonments, a Badge of a Villain to be imprisoned without Cause; that and Tailler luy haut and bas, propria quarto modo to Villains. He presents this with all Reverence; for we (faith he) speak for the future Times only. Our King is good, and the Council most gracious; and therefore non nobis nati sumus; it is for our Posterity we desire to provide rather than for ourselves, that they be not in worse Case (fn. 25) than Villains; for to be imprisoned without Cause shewn, is to be imprisoned without all Cause. De non apparentibus, et non existentibus, eadem est Ratio. Beside that Imprisonment is a Kind of Death, perdit Familiam, Domum, Uxorem, etc. and must live amongst damned Wretches; and Fear of Imprisonment avoids a Feossment as well as Fear of Death. In which Speech he may speak (faith he) his own Heart, but not his own Head; for if any Man be offended, he must find Fault with his Book, not him.
"2. A minori ad majus; from Bracton, Minima Pæna Corporalis est major qualibet Pecuniaria, and a Subject cannot be fined by the King in Camera, but in Curia. He said he should never have Wit enough to answer this Argument, and that Imprisonment is called in their Learning Duritia Imprisonamenti.
"3. The Third Argument is taken from the Number and Diversity of Remedies, which had never been invented but to free our Liberties. De Odio et Atia was once lost, but recovered again by 42 Ed. III. c. 1; and he was glad of it. He said it was called Atia, quasi acidum quiddam: But a Habeas Corpus was the most usual. He agreed with Mr. Attorney, he said, in the Enumeration of all the Kinds of Habeas Corpus; and if they Two were alone, he did not doubt but they should agree in all Things; only he said that to be Tenant at Will for Liberty he could never agree to: It was a Tenure could not be found in all Litleton.
"4. Then he touched his Argument from the Universality; that the Lords, Bishops, and all, are tumbled and involved in this Universality. Law doth privilege Noblemen from Arrests. This new Doctrine, like the little God Terminus, yields to none; nay the Judges themselves, when they should fit on the Bench, must be walking towards The Tower.
"Judicis ossicium [ (fn. 26) est] ut res ita tempora rerum Quærere; quæsito tempore, tutus eris.
"7. Ab utili, 36 Ed. III. 9. 20. There Statutes made against Imprisonment without Cause are said to be profitable to King and People, so profitable that no King in Christendom claims a Power to imprison Men at Will without Cause expressed. Ab utili again: This Imprisoning destroys all Endeavours; if he were young, he durst not be a Soldier, Lawyer, or Merchant, if Tenant at Will for Liberty, for that would make him desperate; for a Tenant at Will never keeps any Thing in Reparation, etc. Here he touched 28 H. VI, Number 17, De la Poole's Case; and then fell to a Protestation that he intended no Prejudice at all to the King for Matters of State; for the Honourable Table must be maintained in Honour, or this Commonwealth could not subsist. But the Question was, whether they ought not to express this Cause. He repeated again Plowden, 4 Eliz. Pl. 236. The Common Law hath so admeasured the King's Prerogative as He cannot prejudice any Man in his Inheritance; et major Hæreditas venit unicuique nostrum ex Jure et Legibus, quam ex Parentibus. He cited also 42 Ed. III. c. 1, to prove that all Judgements given against Magna Charta are void. Here he was pleased to say he was not so well dealt with in one Particular as he expected, for a Student's Report should not have been cited against him. He desired Mr. Attorney to remember he had not Veritatem ex Cathedra, or Infallibility of Spirit; that was for the Pope: He said, he misgrounded his Opinion upon 33 H. VI; which being nothing to the Purpose, he is assured his Opinion is as little to Purpose. Here he made an Objection. What! can you arrest none without Process or Original Writ? Why, the suspected Felon will run away. He answers, that Process signifies the whole Proceedings, and cited a Rule in Law: Quando Lex aliquod concedit, concedere videtur et id sine quo res ipsa esse non potest. The Law gives Process and Indictment; ergo, gives all Means conducing to the Indictment; and this answers all your Cases of Watchmen and Constables.
Mr. Noye's Reply.
"First, where it was objected that it was inconvenient to express the Cause, for Fear of divulging Arcana Imperii, for hereby all may be discovered, and Abundance of Traitors are never brought to Justice. To this the learned Man answered, That the Judges, by Intention of the Law, are the King's Counsel, and the Secret may safely be committed to all or some of them, who might advise whether they will bail him; and here is no Danger to King or Subject, for their Oath will not permit them to reveal the Secrets of the King, nor yet to detain the Subject long if by Law he be to be bailed.
"Secondly, For that Objection of the Children of O Donell, he laid this for a Ground, that the King can do no Wrong; but, in Cases of extreme Necessity, we must yield sometimes for the Preservation of the whole Estate; ubi unius Dampnum Utilitate publica rependitur. He said, there was no Trust in Children of Traitors, no Wrong done if they did tabescere or marcescere in Carcerc. It is the same Case of Necessity as when, to avoid the burning of a Town, we are forced to pull down an honest Man's House, or to compel a Man to dwell by the Sea-side for Defence, or Fortification; yet the King cannot do Wrong; for Potentia Juris est, non Injuriæ; ergo the Act the King doth, though to the Wrong of another, is by Law made no Wrong; as (fn. 27) if he command One to be kept in Prison, yet he is not responsal for this Wrong. He quoted a Book, 42. 6. Assiz. 5.
"Thirdly, For the Instance made of Westm. I, he said, there was a great Difference between these Three: 1. Mainprize, which is under a Pain; 2. Bail, which is Body for Body, and no Pain, but the Party is ever in Court to be declared against; 3. Replevin is more than both; it is neither by Surety nor Bail; if replevied, then he is never in Court. This Statute faith a Man cannot be replevied; ergo not bailed; non sequitur.
"Fourthly, Where it is said that Bail is ex Gratia, he answers that, if the Prisoner comes by Habeas Corpus, then it is not ex Gratia; yet the Court may advise; but mark the Words, Ad subjiciendum et recipiendum, prout Curia consideraverit. Now it is impossible that the Judges should do so, if no Cause be expressed; for, if they know not the Cause, he may bring the 1st, 2d, 3d, and 4th Habeas Corpus, and so in infinitum, till he find himself a perpetual Prisoner; so that no Cause expressed is worse for the Man than the greatest Cause or Villainy that can be imagined.
Mr. Glanvile's Reply.
"Mr. Glanvile said, That, by Favour of the House of Commons, he had Liberty to speak, if Opportunity were offered. He applies his Answer to one Particular of Mr. Attorney, who, assigning to the King Four great Trusts; 1, of War; 2, Coin; 3, Denizens; and 4, Pardons; (fn. 28) it is assented unto, that the King is trusted with all these Four Legal Prerogatives: But the Argument followeth not; the King is trusted in many Prerogatives; ergo in this, non sequitur; non est sufficiens enumeratio Partium. He said he would answer these Particulars with Two Rules; whereof the First should wipe off the First and the Second, and the Other the Third and the Fourth. The First Rule is this: There is no Fear of trusting the King with any Thing but the Fear of ill Counsel against the Subject; the King may easily there be trusted where ill Counsel doth equally engage both the King and Subject, as it doth in Matters of War and Coin. If he miscarry in the Wars, it is not always plectuntur Achivi, but He smarts equally with the People: If He abase His Coin, He loseth more than any of the People; ergo He may safely be trusted with these Flowers of the Crown, Wars and Coinage. The Second Rule he gave was this: When the King is trusted to confer Grace, it is one Thing; but when He is trusted to infer an Injury, it is another Matter: The former Power cannot by miscounseling be brought to prejudice another, the latter may: If the King pardon a guilty Man, He punisheth not a good Subject. If he denizen never so many Strangers, it is but Damnum sine Injuria. We allow Him a Liberty to confer Grace; but not (without Cause) to infer Punishments; and indeed He cannot do Injury; for, if he command to do a Man Wrong, the Command is void, et Actor fit Author, and the Actor becomes the Wrong-doer; and therefore the King may safely be trusted with War, Coin, Denizens, and Pardons, but not with a Power to imprison, without Expression of Cause or Limitation of Time; because, as the Poet tells us,
Mr. Selden's Reply.
"He said, your Lordships had heard all or most of the Arguments brought, and answered fully; that there was hardly any Thing objected, which had the least Colour. This he speaks not out of an overweening Confidence as a Counsellor, but desires your Lordships to recall the several States and Conditions of those you now hear: The King's Counsel speak for the King's Advantage, as Glossers and Parties; but the Condition of the Gentlemen is this, that they are Members of the House of Commons, and so bound to speak Truth, and by strict Oath to maintain the King's Rights and Pre-eminence: And therefore your Lordships had good Cause to put a Value upon them, and what they shall say accordingly. Here he fell upon the Resolution of the Judges, 34 Eliz. which, he said, stuck with many, and was past by Mr. Attorney as drawing on his Side, and so pressed at the King's Bench. It is true, a fuller Perspicuity might by Care have been delivered therein; yet what was in it, he faith, concludes the Resolution of the House of Commons. He instanced in One Point: They may not be delivered by any Court without Trial of Law; now no Trial where no Cause: But in that Case the Matter is unintelligible. Quis et Quare, Two Questions. It is one Question Who, but another Why they are com mitted. Then he said, there was an Opinion of Reply, in that of 13 Jac. Ruswell's Case. It was not Ruswell's Case, but Omnigetherum of Three or Four Cases, full of Mistakings. It mentions Harcourte, 40 Eliz. to have been bailed by Command of the Queen or Council, and not a Word hereof true: It speaks of a Letter filed in the Crown-office, and no Letter was ever there filed. It cites the Case of 34 Eliz. 36 Eliz. In a Word, , there is nothing sound in all this imaginary Report; and for the Journals of the Lower House, in 18° Jac. they are good Records, forasmuch as they are Journals; i.e. for Orders and Resolutions; but Things catched at by the Clerks cut of the Mouths of Men, are declared long since to be of no Authority; and the House doth generally conceive, that this Particular is a Mistaking of the Clerk.
Sir Edward Cooke's Second Speech.
"He put your Lordships in Mind that you had the greatest Cause in Hand that ever came in the Hall of Westm. or indeed in any Parliament. My Lords (faith he), your Noble Ancestors, whose Places you hold, were Parties to Magna Charta, so called for Weight and Substance, for otherwise many other Statutes are greater in Bulk, as Alexander, a little Man, called Magnus for His Courage; and you my Lords the Bishops (faith he) are commanded fulminare, to thunder out, your Execrations against all Infringers of Magna Charta, Sententia lata super Chartam. And all worthy Judges, that were worthy of their Places, have had Magna Charta in great Estimation. Now, as Justice hath a Sword, so hath it a Balance; ponderat hæc Causas, percutit ille reos. Put therefore (faith he), my Noble Lords, in the one Balance, Seven Acts of Parliament, Records, Precedents, Reasons, all that we speak, and that of 18 Ed. III, whereto I found no Answer; and, in God's Name, put into the other Balance what Mr. Attorney said, his Wit, Learning, and great Endowments of Nature. And, if he be weighty, let him have it; if no, then conclude with us; you are involved in the same Danger with us, and therefore we desire you, in the Name of the Commons of England, represented in us, that we may have Cause to give God and the King Thanks for your Justice, in complying (fn. 29) with us.
"He observed, that many Things and much Matter had been uttered by the Gentlemen. To run over it all would spend much Time; and it was little that then was left him. He would therefore observe some principal Things, wherein he and they did not differ: 1. It was agreed the King may commit. 2. It was agreed the Statutes were in Force. How this Lex Terræ is to be expounded, is the main Apple of Contention. If the Cause be sufficiently expressed generally, then Mandatum Domini Regis is a sufficient Expression. To reduce this to the Judicature of the Judges, doth presuppose, not state the Question. That the King hath an unlimited Power, is not the State of the Question; for then the King might imprison perpetually, be the Cause right or wrong. Whether there be that Necessity of expressing the Cause upon Commitment or no, is a great Part of the Controversy. It was granted by One, That there may be a Cause of an extraordinary Nature, as O Donell's; but the Rule of the House of Commons is a new Mathematical Line, that admits of no Latitude at all. To say Subjects may be perpetually imprisoned, or without any Cause, is no Intention of the King. On the contrary Side, to tie the King's Command to the Rule of His Judges, and leave no Latitude nor Breadth at all to turn Him in, is a Variation, wherein your Lordships Wisdom must appear, to smooth and facilitate the Roughness of the Passage. He recommended all to your Wisdoms to weigh (as Sir Edward Cooke desired) both in equal Balance, Reasons, Precedents, and Resolutions of Judges. This Manifesto of the House of Commons takes the Matter upon great Advantage, as resolved by that Body; but this is our Comfort that are of Counsel for the King, that you are all now Counsellors of the King and Kingdom. If all can be so ordered as you shall not destroy the Rights of the King, and shall favour the Liberties of the Subject, as the Cause requires, Mr. Attorney hath the very utmost of his Desires.
Mr. Noy's Rejoinder.
"To which it was replied, That the Judges are to judge between Him and His People: Ergo, no Cause no Judgement; and therefore He ought not to commit for any Time not an Hour, without a Cause; and that there was a Cause."