DIE Sabbati, 19 Aprilis,
Domini tam Spirituales
quam Temporales, quorum nomina Subscribuntur,
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. *)
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.
THE Earl of South'ton was excused, etc.
Reformation of Prisoners in the Common Gaols.
vice lecta est Billa, An Act for the Reformation of Prisoners committed to the Common Gaols of this Kingdom.
vice lecta est Billa, An Act for Naturalizing
of Alexander Levineston.
Committed unto the
L. Viscount Wimbledon.
L. Bp. of Roffen.
Mr. Serjeant Asheley to attend.
To meet presently.
They returned, and reported the said Bill fit to pass,
without any Amendments.
Ordered, To be ingrossed (vide 17 April.)
The said Alexander Levineston took the Oaths, etc.
according to the Statute.
The Lord Keeper's Report of the Conference touching the Liberty of the Subject.
The Lord Keeper reported Part of the Conference
between the Lords and Commons, on Thursday the 17th
Day of this April, concerning the Liberties of the
Subject, to this Effect: videlicet,
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:
" 1. The State of the Question.
" 2. Acts of Parliament and Parliamentary Proceedings.
" 3. Precedents.
" 4. Resolutions of former Times.
" 5. Some Reasons offered, to maintain this Side and
weaken the other.
" 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. *) 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."
"Here Mr. Attorney stayed; and, after a little Pause,
upon settling whether the Lower House would answer
particularly to each Precedent, or take all together;
Sir Edward Cooke began:
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. *) 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°."
The Lord President reported the Second Part of the
said First Day's Conference: videlicet,
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
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. †) 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. ‡) 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
"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 Ninth, being Harecourt's Case, Hillar. 40
Eliz. Rot. 62. the self-same Objection was made by
him; but no Warrant was shewed.
"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.
"Then Mr. Attorney urged the Eight Precedents
against the Resolution of the House of Commons.
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
"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. *) 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. *) 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
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. †) 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
"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.
The Earl of Herteforde reported the Third Part of
the said Conference, on this Manner: videlicet,
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
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. *) 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. *) 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.
"Here Mr. Attorney spake to the House of Commons about that Order that Keling, by his Appointment, had drawn; but it was to the same Effect that
he had spoken to your Lordships in the House before.
"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
Dominus Custos Magni Sigilli declaravit præsens Parliamentum continuandum esse usque in pomeridianum
hujus diei, hora 2a, Dominis sic decernentibus.
Domini tam Spirituales quam Temporales, quorum
nomina subscribuntur, præsentes fuerunt:
p. Epus. Winton.
p. Epus. Norwicen.
p. Epus. Co. et Lich.
p. Epus. Lincoln.
p. Epus. Sarum.
Epus. Bath. et Well.
p. Epus. Bristol.
p. Epus. Gloucestren.
p. Epus. Carliol.
p. Epus. Exon.
p. Epus. Landaven.
|p. Ds. Coventrey, Ds. Custos Mag. Sigilli.
p. Comes Marleborough, Mag. Thesaur. Angliæ.
Comes Maunchester, Præsidens Concilii Domini Regis.
Dux Buckingham, Mag. Admirallus Angliæ.
p. Comes Lindsey, Mag. Camerar. Angliæ.
p. Comes Arundell et Surr. Comes Marescall. Angliæ.
Comes Pembroc, Senesc. Hospitii.
p. Comes Mountgomery. Camer. Hospitii.
p. Comes Kantii.
p. Comes Bedford.
p. Comes Essex.
p. Comes Nottingham.
p. Comes Suffolciæ.
p. Comes Sarum.
p. Comes Bridgewater.
p. Comes Leicestriæ.
p. Comes Devon.
p. Comes Bristol.
p. Comes Angles.
p. Comes Clare.
p. Comes Bolingbrooke.
p. Comes Westmerland.
p. Comes Berk.
p. Comes Cleveland.
p. Comes Norwich.
p. Comes Dover.
p. Vicecomes Say et Scale.
p. Vicecomes Wimbleton.
p. Ds. Clifford.
p. Ds. Percy.
p. Ds. Dacres.
p. Ds. Darcy.
Ds. St. John de Bas.
p. Ds. Pagett.
p. Ds. North.
p. Ds. Spencer.
Ds. Stanhope de Harr.
Ds. Stanhope de Sh.
p. Ds. Kymbolton.
p. Ds. Mountague.
p. Ds. Grey.
p. Ds. Tregoze.
p. Ds. Tuston.
p. Ds. Lovelace.
p. Ds. Pawlett.
p. Ds. Howard.
p. Ds. Weston.
Reformation of Prisoners in the Common Gaols.
vice lecta est Billa, An Act for the Reformation of Prisoners committed to the common Gaols
of this Realm.
Committed unto the
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,
|Mr. Justice Whittlock,
|Mr. Serjeant Ashley,
To meet on Wednesday next, being the 23d of this
Instant April, at Two in the Afternoon, in the
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,
"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
"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
"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. *) 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. *) 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. †) 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. *) 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. †) 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
"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. *) 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. †) 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:
"1. That, if the King might thus commit without
Cause, the Free Subjects were in the Case of Villains.
"2. Nay, in worse Case than Villains.
"3. That Imprisonment is counted a Civil Death;
and therefore a Man imprisoned is as a Dead Man.
"4. That the least Corporal Punishment is greater
(fn. *) 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
"5. That there are Diversities of Remedies against
Imprisonment; therefore, some Remedy must be applied for this.
"6. That this extends to all Persons, of all Degrees,
of all Qualities; therefore it is commune Periculum.
"7. That it is indefinite for Time, and so may be a
"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. *) 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. *) 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
"2. Secondly, It must be expressed at the Time of
making of the Warrant for the Commitment, which
is instantly and presently; and from this there must
be no varying.
"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. *) 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. *) 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. †) 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. *) 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. †) 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.
Then the Lord Bishop of Lincolac reported the Answer which the Commons made to the Arguments of
Mr. Attorney and Mr. Serjeant Ashley: videlicet,
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. *) 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:
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
"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
"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. *) 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.
"5. From the Indesiniteness. He never knew Law
that put any Man to Prison but for a Year, or till Fine
be paid, etc. but this is indefinite.
"6. A Tuto:
"Judicis ossicium [ (fn. †)
est] ut res ita tempora rerum
Quærere; quæsito tempore, tutus eris.
"But perpetual Imprisonment is non tutum without a
Cause; for, if he escape, and no Cause be expressed,
the King loseth all; ergo tutum est for the King to shew
Cause; it is via Regia;
"Hæc via ducet in Urbem.
"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
"And here paused Sir Edward Cooke."
Mr. Noye's Reply.
"Mr. Noye offered Answers to the Inconveniencies
presented by Mr. Attorney. I pray God I do understand them, and then I hope to express them;
they were Four in Number.
"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. *) 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.
"And thus far proceeded that learned Gentleman."
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. *) 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
"Libertas potior Metallis.
"And thus far proceeded Mr. Glanville."
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.
"And here ended Mr. Selden."
"Sir Edward Cooke:
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. *) with us.
"And here rested Sir Edward Cooke."
"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.
"And here he ended."
Mr. Noy's Rejoinder.
"Mr. Noy here rejoined, The King might commit
for a Cause, not without.
"This was agreed on both Sides."
"Mr. Attorney said, He was not bound to express
"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."
Dominus Custos Magni Sigilli declaravit præsens Parliamentum continuandum esse usque in diem Lunæ, hora
nona, Dominis sic decernentibus.