Historical Collections of Private Passages of State: Volume 1, 1618-29. Originally published by D Browne, London, 1721.
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Pasch. 5 Caroli Regis. B. R. The Reports of the following Arguments were taken by Mr. Widdrington of Grays-Inn.
Mr Stroud brought to the King's Bench Bar, upon a Habeas Corpus.
Upon the Habeas Corpus out of this Court, to bring here the Body of one William Stroud, Esq; with the cause of his imprisonment, to the Marshal of the King's Bench, it was returned in this manner: That William Stroud, Esq; was committed under my custody, by vertue of a certain Warrant under the hands of twelve Lords of the Privy Council of the Lord the King; the tenour of which Warrant under the hands of twelve Lords of the Privy Council of the Lord the King; the tenour of which Warrant followeth in these words.
You are to take knowledge, That it is his Majesty's express pleasure and commandment, that you take into your custody the body of William Stroud, Esq; and keep him close prisoner, until you shall receive other order, either from his Majesty, or this Board; for so doing, this shall be your Warrant. Dated the 2d of April 1629. And the direction thereof was, To the Marshal of the King's Bench, or his Deputy. He is likewise held in prison by vertue of a certain Warrant, under the hand of the King himself, the tenour of which Warrant followeth in these words. Carolus Rex. Whereas you have in your custody the body of William Stroud, Esq; committed by the Lords of Our Privy Council, by Our special command, you are to take notice, that his commitment was for notable contempts by him committed against Our self, and Our Government, and for stirring up of Sedition against Us: For which you are to detain him in your custody, and keep him close prisoner, until Our pleasure be further known concerning his deliverance. Given at Greenwich the 7th of May 1629, in the 5th year of Our Reign. And the direction was, To Our Marshal for Our Bench for the time being. And these are the causes of the taking and detaining of the foresaid William Stroud, &c.
Also Walter Long, Esq;
And upon another Habeas Corpus to the Marshal of the Houshold, to have the body of Walter Long, Esq; he made the same Return as above.
Ask of the Inner Temple, of Counsel with Mr. Stroud, moved, That the Return was insufficient. The Return consists upon two Warrants, bearing several Dates, which are the causes of the taking and detaining of the Prisoner. For the first Warrant, which is of the Lords of the Council, that is insufficient; because no cause is shewn of his commitment, which is expresly against the resolution of the Parliament, and their Petition of Right, in the time of this King which now is, to which he had likewise given his assent; so his taking by vertue of the said Warrant is wrongful. And for the second Warrant, it is insufficient also, and that notwithstanding that it be the King's own; for, the King himself cannot imprison any man, as our Books are, to wit, 16 H. 6. F. Monstrance de faits. 1 H. 7. 4. Hussey reports it to be the opinion of Markham, in the time of Edw. 4. and Fortescue in his Book, de laudibus Legum Angliæ, cap. 18. And the reason given, is, because no action of false imprisonment lies against the King, if the imprisonment be wrongful; and the King cannot be a wrong doer. The Statute of Magna Charta is, That no free-man be imprisoned, but by the Law of the Land. And it appears by these Books, that it is against the Law of the Land that the King should imprison any one.
2. Admit that this be only a signification and notification given by the King himself, of the commitment of the prisoner; yet it seems that that signification is of no force, 1. Because the words are general and uncertain,—for notable contempts—There are in the Law many contempts of several natures; there are contempts against the Common Law, against the Statute Law; contempts in words, gestures, or actions. And it appears not to the Court of what nature these contempts were.—notable—Every contempt which is made to the King is notable.—against our Government—Contempt which is committed in a Court of Record or Chancery, is a contempt against the Government of the King, to wit, because they disobey the King when he commands them by his Writs, C. 8. 60. a. Beecher's Case. The last words of the Return are,—for stirring up of Sedition against us—which words likewise are indefinite and general. I find not the word [Sedition] in our Books, but taken adjectively, as, seditious Books, seditious News, &c. in the Statute of 1 st & 2d Phil. & Mary, c. 3. the words are, If any person shall be convicted, &c. for speaking, &c. any false, seditious, or slanderous News, saying of the Tales of the Queen, &c. he shall lose his Ears, or pay 100 l. There the penalty imposed upon such sedition is but a Fine, C. 4. Lord Cromwel's case 13. where sedition is defined to be seorsum itio, when a man takes a course of his own. And there it is said, that the words,—maintain sedition against the Queens proceedings—shall be expounded according to the coherence of all the words, and the intent of the parties. So that it is plain, that there is a sedition that is only Fineable, and which is no cause of imprisonment without Bail: And what the sedition is that is here intended, cannot be gathered out of the words, they are so general.—against us—those words are redundant, for every sedition is against the King.
Upon the generality and incertainty of all the words in the Return, he put these Cases, 18 E. 3. A man was indicted, quia furatus est equum, and doth not say Felonice, and therefore ill. 29 Ass. 45. A man was indicted that he was communis latro, and the Indictment held vitious, because too general. So here, the offences are returned generally. But there ought to be something individual. C. 5. 57. Specot's Case, quia schismaticus inveteratus, is no good cause for the Bishop to refuse a Clerk, for it is too general, and there are schisims of divers kinds, 38 E. 3. 2 Because the Clerk is criminosus, it is no good cause for the Bishop to refuse him, 8 & 9 Eliz Dy. 254. The Bishop of N. refuseth one, because he was a haunter of Taverns, &c. for which, and divers other crimes, he was unfit, held, that the last words are too general and incertain, 40 E. 3. 6. In the tender of a Marriage, and refusal of the Heir, he ought to alledge a certain cause of refusal, whereupon issue may be taken. C. 8. 68. Trallop's Case: to say, That the Plaintiff is excommunicated for divers contumacies, shall not disable him, without shewing some cause in special of the excommunication, upon which the Court may judge whether it were just or no. So here. And he concluded with a Case that was resolved, Hill. 33 Eliz. Peak and Paul the Defendants said of the Plaintiff, Thou art a mutinous and seditious man, and maintains sedition against the Queen; and the words adjudged not actionable.
Mr. Mason of Lincolns-Inn his Argument for Mr. Long.
Mason of Lincolns-Inn, of Counsel with Mr. Long, moved also, That the Return was insufficient. For the first Warrant, That he was committed by command of the King, signified by the Privy Council, I will not argue that, because it was claimed as an ancient Right pertaining to the Subject, in the Petition of Right, whereto the King himself hath given his consent. For the second Warrant, the Return is,—for stirring up Sedition against us and our Government. Sedition is not any determined offence within our Law; our Law gives definitions or descriptions of other offences, to wit, of Treason, Murder, Felony, &c. but there is no crime in our Law called Sedition. It is defined by a Civilian to be Seditio, or Secessio, cum pars Reipublicæ contra partem insurgit; so that Sedition is nothing but Division. Bracton and Glanvil have the word [Seditio] generally. Before the Statute of 25 E. 3. cap. 2. it was not clear enough what thing was Creason, what not; by which Statute it is declared what shall be said Creason, and that the Judges shall not declare any thing to be Creason, that is not contained within the said Statute, but it shall be declared only by Parliament. And that Statute speaks not of Sedition, nor the Statute of 1 H. 4. cap. 10. which makes some things Creason, which are not contained within the said Statute of 25 E. 3. The Statute of 1 E. 6. cap. 12. takes away all intervenient Statutes, which declared new Creasons; and the said Act declares other things to be Creason, but mentions not Sedition. Sedition is the quality of an offence, and is oftentimes taken Adverbially, or Adjectively. To raise tumults or trespasses is Sedition, Trin. 21 E. 3. rot. 23. B. R. Garbart's Case. A man was indicted, because in the high street he took J. S. there, being in hostile manner, and usurped over him royal Power, which is manifest sedition; and there it was but an Indictment of Crespass, Mich. 20 E. 1. rot. 27. Due that was Surveyor of the Woodwork for the King, was indicted for stealing of Timber, and detaining Wages (ridding Carpenters Wages) by one that was but a Boy; and this is there termed Sedition, and yet it was but a petty Felony, Mich. 42. E. 3. rot. 65. B. R. R. Pope was appealed by the Wife of J. S. because he feloniously and seditiously murdered J. S. and [Seditiously] was there put in, because it was done privily. By which cases it appears, that Sedition is not taken as a Substantive, so that it may be applied to Creason, Crespass, or other offences. By the Statute of 2 H. 4. cap. 15, there is a punishment inflicted for the raising of seditious Doctrine, and yet no punishment could have been inflicted for it until the said Statute; and yet it was sedeitious, as well before the said Statute as after. And this appears also by the Statute of 1 & 2 Phil. & Mar. cap. 3. which hath been cited. The Statute 13 Eliz. c. 2. recites, that divers seditious and evil-disposed Persons, &c. obtained Bulls of Reconciliation from the Pope, which offence was made Treason by the said Statute, (for it was not before, and yet there was sedition) and by the said Statute, the aiders and abettors are but in the case of Premunire. By the Statute of 13 Eliz. cap. 1. for the avoiding of contentious and seditious Titles to the Crown, it is Enacted by the said Statute, That he that shall declare the Successor of the King, shall forfeit the moiety of his Goods, &c. so that the said offence, altho' it be seditious, is not Treason by the Common Law, nor is made Treason by the Statute of 25 E. 3. nor by the Statute of 13 Eliz. By the Statute of 23 Eliz. c. 2. he that speaks seditious or slanderous news of the Queen, shall loss his ears, or ppay 2001. and the second offence is made Felony. The Statute of 35 Eliz. c. 1. is against seditious Sectaries, which absent themselves from the Church; they are to be punished 10 l. by the month. Out of all which Statutes it may be collected, that the word [Sedition] is taken variously, according to the subject in hand. And C. 4. Lord Cromwel's case [Seditious] is referred to Doctrine. There are offences more high in their nature than Sedition, which were not Treason, unless so declared by Act of Parliament. Every rebellious Act is Sedition, yet if such acts be not within the Statute of 25 Ed. 3. they are not Treason. 17 R. 2. c. 8. Insurrection of Uillains and others is made Treason, which proves, that before this Act it was not Treason. And this Act of 17 R. 2. is repealed by the Statute of 1 H. 4. By the Statute of 3 & 4 E. 6. c. 5. to assemble people to alter the Laws, is made Treason, if they continue together an hour after Proclamation made. This Assembly of People was sedition at the Common Law; and the very Assembly, if they after dissolve upon Proclamation made, is not Treason by the said Statute. By the Statute of 14 Eliz. c. 1. it is made Felony, malitiously and rebelliously to hold from the Queen any Castles, &c. but because this relates not to the Statute of 25 E. 3. It is not Treason. 2. It seems clearly, that this Case is within the Petition of Right, in which Magna Charta, and the Statutes of 25 & 28 E. 3. are recited. The grievance there was, that divers have been imprisoned without any cause shewed, to which they might make answer according to the Law. And upon this Return, nothing appears to be objected to which he might answer. It appears not what that Act, which is called Sedition, was. This is the very Grief intended to be remedied by this Statute: To this he cannot answer according to Law. It appears not whether this were a seditious Act, Trespass, or Slander, or what it was at all. The words are,—Sedition against the King—This helps not, for every offence is against the King, against his Crown and Dignity; that which distrubs the commonwealth is against the King; seditious Doctrine is sedition against the King, as is before said. In 28 H. 6. vide Prostrat. fol. 19. the Lords and Commons desire the King, that William de la Pool may be committed for divers Treasons, and sundry other heinous Crimes; and the Petition held not good, because too general: Whereupon they exhibit particular Articles against him. And therefore upon the whole matter he concluded and prayed, Mr. Long might be discharged from his imprisonment.
Sergeant Barckley his Arguments against Stroud and Long.
Du another day, Barckley and Davenport, the King's Sergeants, argued for the King, That this Return was sufficient in Law to detain them in prison. Barckley began, and said, That the Case is new, and of great weight and consequence, and yet, under favour, the Prerogative of the King, and the Liberty of the Subject, are not mainly touched therein; for the Case is not so general as it hath been made, but particular upon this particular Return. The Liberty of the Subject is a tender point, the right whereof is great, just, and inviolable. The Prerogative of the King is an high point, to which every Subject ought to submit. I intend not to make any discourse of the one or the other, I will only remember what the King hath determined upon them both, in his Speech which he made upon the Petition of Right, to wit, That the Peoples Liberties strengthen the King's Prerogative; and that the King's Prerogative is to defend the Peoples Liberties. This may settle the hearts of the People concerning their Liberty. The way which I intend to treat in my Argument, is, to answer to the objections and reasons which have been made, and to give some reasons, whereby this Return shall be sufficient.
The objections which have been made are reducible to four Heads.
- 1. By what the Prisoner here shall be said to be committed and detained.
- 2. That this Commitment is against the Petition of Right.
- 3. That the Cause which is here returned, is general and incertain.
- 4. That the offences mentioned in the Return, are but Finable, and therefore notwithstanding them, the Party is Bailable.
For the first, it hath been objected, That the Commitment here was by the Lords of the Privy Council, and the signification of this cause is by the King himself. But I say, that there is a further matter in the Return; for the Lords of the Council do it by the Command of the King, and they only pursue this Command. I will not dispute, whether the Lords of the Council have power to commit an offender or no, it is common in experience, 33 H. 6. 28. Poignes Case is express in it. And in the Petition of Right it is admitted, that they may commit. And this is not alledged there for a grievance, but the grievance there was, because the particular charge of Commitment was not shewed. Some Books have been objected to prove, that the King, though in Person, cannot commit any person, 16 H. 6. F. Monstrance de saits 182. But the authority of that Book vanisheth, if the Case be put at large, which was in Trespass for cutting of Trees. The Defendant said, That the place where, &c. is parcel of the Mannor of D. whereof the King is seised in Fee, and the King commands us to cut. And the opinion of the Court was, that this is no plea, without shewing a specialty of the Command of the King. And there the whole Court says, That if the King command me to arrest a man, whereby I arrest him, he shall have trespass or imprisonment against me, although it be done in the presence of the King. That the following words are to be understood, that the principal case was of one Command of the King by word, and then such Command by word to arrest a man is void. And 1 H. 7. 4. was objected. Hussey says, that Markham said to King Edward 4. that he cannot arrest a man for suspicion of Treason or Felony, because if he do wrong, the Party cannot have his Action. To this I say, That the Book there is to be understood of a wrongful Arrest, for there is spoken of an action of false imprisonment; and a wrongful arrest cannot be made by the King.
2. It stands not with the Dignity of the King to arrest any man; C. 4. 73. The King makes a Lease for years, rendring Rent, with condition of re-entry for non-payment; he shall take advantage of the condition without any demand; and the reason there given, is, that a decorum and conveniency might be observed. So it is not befitting for the King in person to arrest any man, but the King may command another to do it. Bracton lib. 2. de acquirendo rerum Dominio, fol. 55. says, That the Crown of the King is to do justice and judgment, and facere pacem, without which, the Crown it self cannot subsist. Several constructions are to be made upon those several words,—and the last words—facere pacem—imply, that the King hath a coercive power. Britton f. 1. amongst the Errata. The King said in person, Because we are not sufficient in person to do every thing, we divide the charge into many parts. We are the peoples Justice, and a Justice implies one that hath power to do Justice in every kind, to wit, by imprisonment, or otherwise, 20 H. 7. 7. C. 11. 85. it is said, That the King is the Chief Justice. And Lambert in his Justice of Peace, fol. 3. says, That in antient Histories, the Chief Justice of England is called, Capitalis Justicia & Prima Justicia, after the King, in England. So that the King hath the same power of Justice, as the Chief Justice had. This imprisonment here, which is before conviction for any offence, is not used toward the Subject as imprisonment for any fault, but is rather an arrest or restraint to avoid further inconveniencies, 14 H. 7. 8. A Justice of Peace may arrest men rioteusly assembled, for prevention of further mischief. And the Book also says, That he may leave his servants there to arrest men, for safeguard of the Peace. It is a case well known, that if a house he set on fire, every man may pull down the next house, for prevention of greater mischief; so it seems concerning the Incendiaries of the State, they ought to be restrained and supprest, left others should be stirred up by them to the same combustion. 22. ass. 56. and 22 E. 4. 45. in false imprisonment the Defendant justifies, because the Plaintiff was mad and out of his wits, and that he had done some harm, and that he had bound and beat him to avoid further harm, which might have hapned by his madness: And the justification was held good. So is it in matter of Government, to avoid commotions, the King ought to use his coercive power against those that are enraged. The objection was, that this course was against the Petition of Right. But I answer, That this case is out of the words of that Petition; the words of the Petition were,—Whereas by the Statute called, The great Charter, and by the Statute of 28 E. 3. no free-man may be taken or imprisoned—yet against the tenour of the said Statute, &c. divers of your subjects have of late been imprisoned, without any cause shewed; and when for their deliverance, &c. they were brought before the Justices by Writs of Habeas Corpus, there to undergo and receive as the Court should order, and their keepers commanded to certifie the cause of their deteyner, and no cause was certified, but that they were detained by your Majesties special command, signified by the Lords of your Council; and yet were returned back to several Prisons, without being charged with any thing, to which they might make answer according to Law. These last words are observable,—Without being charged with any thing, to which they might make answer—These words do not refer to the Return of the Habeas Corpus, for the cause returned therein cannot be traversed, 9 H. 6. 54. but the Court took it as true. But the setting forth of the cause, and the answer to the same cause, is to be upon other proceedings, to wit, upon the Indictment for the offence, or otherwise. And there is great difference between the return of a Writ to which a Man may answer, and the return of an Habeas corpus, 10 E. 4. & 3 H. 7. 11. are, that if the Sheriff return Rescous, all certainties of every circumstance ought to be shewed; because it is fitting, that a thing certain be brought into judgment. And upon shewing of the grievance, as above, the Petition is, that no free-man, in any such manner as before is mentioned, be imprisoned or detained, (such) and it hath relation to such imprisonment, which is mentioned in the premisses. And imprisonment mentioned in the premisses of the Petition, is, where no cause at all was mentioned; then where any cause is shewed, is out of the Petition, and that [such] is the word relative, appears by C. 11. 62. where many cases are put to the same purpose, which see.
The third objection was, That the Return was general and uncertain. The Counsel on the other side had divided the words of the Return, but that is to offer violence thereunto; for an exposition shall not be made by fractions, but upon the whole matter. For the first words,—notable contempts—It hath been said, that the addition of the word [notable] is but to make a flourish: But I say, That [notable] is not the emphasis of the Return, but it only expresseth the nature of the offence; and yet [notable] is a word observable by it self in the Law, and implies, that the thing is known and noted. By 27 E. 1. Sheriffs shall be punished, that let notorious offenders to bail; and by the Statute of 4 H. 4. c. 3. a notorious or common Thief shall not make his purgation: and 26 E. 3. 71. in a trespass for false imprisonment, the Defendant said, That the Plaintiff came into the Town of Huntington, and because he was seen in the company of R. de Thorby, who was a notorious Chief, he, as Bailiff of Huntington, took him upon suspicion. I confess, that—for contempts—is general, yea, it is genus generalissimum, and within the Petition of Right; but the words are,—against our Self—It hath been said, That this might be by irreverent words or gestures.—And our Government—It hath been said, that this might be by contempt to the King's Writ, or by Retraxit, as Beecher's case is. To this I answer, That those words which are spoken to one purpose, ought not to be wrested to another; and this is against the common meaning of the words, C. 4. Thou art a murderer, the Defendant shall not afterwards explain it to be a murderer of Hares, for the highest murder is intended. So here, the highest Government is intended.
4. It hath been objected, that—for stirring up of sedition against Us—may perhaps be but an offence Finable: But those words joined with the former words, shew this to be an offence of the highest nature; sedition is a special contempt. And altho' sedition in it self may be but a general offence, yet here it is,—Sedition against Us and Our Government—which makes it particular. It hath been confessed by one, that argued on the other side, that there is a general in a particular. C. 4. Holland's Case, there is the most general, and there is a general in particular, as the State Ecclesiastical. 3ly, There is more particular, as the Colledges, Deans, and Chapters. This being in a case of Return upon Habeas corpus, no precise certainty is required. In an Indictment, a certainty of all circumstances is requisite; in Pleading, a certainty is required; in Counts, a more precise certainty; in Barrs, a certainty to a common intent is enough. There is not such precise certainty required here as Indictment or Count, because the party ought to answer unto them; nor so much certainty required in this as in a Bar. And the Return is not uncertain; for, as it is said in Howden, 202. and 193. a thing is incertain, where it may be taken indifferently, one way of the other. But where the intendment the one way exceeds the intendment the other way, it is not uncertain, as it is here. The words are,—for notable contempts against Us and our Government, and for stirring up of Sedition against Us—Here is certainty of intendment one way There are many Writs which are more uncertain than this Return here is, and yet good. The Writ concerning the taking of an Apostate is general, Quod spreto habitu ordinis; & yet there are more sorts of Apostasies; in the Writ concerning the amoving of a Leper, the words are general, and yet it appears by F. N. B. that there are two kinds of Lepers, one out ward, and the other inward; & for the latter the Writ concerning amoving a Leper. So the Writs concerning the burning of an Heretick; & concerning the examining of an Idiot, are general; & yet there are sundry kinds of Hereticks and Idiots also. But it hath been objected, that [Sedition] is not a Law-term, nor known in the Law, of which the Judges can take no notice; but the words, to express offences of this nature, are Murder, Treason, Felony, &c. and that no Indictment of Sedition generally was ever seen. To this I answer, perhaps it is true, that no Indictment was ever seen made, because the form of an Indictment is precise, words of Art are required therein, as appears in Dyer 69. 261. C. 4. Vaux's Case; yet in 5 E. 6. Dyer 69. it is said, that Furatus implies Felonice cepit, although the contrary hath been objected. In a return, words by Periphrasis are sufficient. The Warrant of a Justice of Peace to apprehend J. S. because of prepensed malice, interfecit J. D. is good enough, although there wants the word murdravit. In 5 R. 2. F. Tryal 54. Belknap says, that a miscreant shall forfeit his Land. Out of which it may be gathered, that a man may be indicted for miscreancy. And it seems likewise, that an Indictment of sedition may be good, for in some Cases it is Treason. I agree Peak's Case, which hath been objected, that for these words [seditious Fellow] no action lies; and so is C. 4. 19. b. because these words do not import an Act to be done, but only an inclination to do it; but if a man say such words of another, which import that he hath made sedition they are actionable, as it was resolved in Philips and Badby's Case. 24 Eliz. C. 4. 19. a. Thou hast made a seditious Sermon, and moved the People to Sedition this Day, adjudged actionable. So in the Lord Cromwell's C. 4. 12, 13. the action would have lain for those words, You like of those that maintain Sedition against the Queens proceedings, if there had not been another matter in the case. I agree, the case of 21 E. 3. Sir John Garboyl's case, & 42 E. 3. for in those cases, sedition was only taken adjectively, & shews an inclination only to do a seditious act, & in such sense sedition may be applied to other offences than Treason. In 31 E. 1. f. gard. 157 Gadein in Socage made feofment of land which he had in Ward, This is forfeiture says the Book, for the Treason which he did to the Ward; so there, one thing is called Treason, which is only a breach of trust. In an appeal of Mayhem, it is felonice, and yet 6 H. 7. 1 it is not Felony: But Felony is there only put to express the heinousness of the offence, it is, as it were, a Felony. The Statutes of 2H. 4. 1 Mar. 35 Eliz. 13 Eliz. 17 R. 2, 3 7 4 E. 6. 14 Eliz. which have been objected, have the word [Sedition] but not appliable to this case. Bracton in his Book de Corona, says, Si quis, &c. If any by rash attempt, plotting the Kings death, should act, or cause any to act, to the sedition of the Lord the King, or of his Army, it is Treason. And Glanvil, in as many words, says. That to do any thing in sedition of the Kingdom, or of the Army, is high Treason. And Britton, fol. 16. It is high Treason to disherit the King of the Realm, and sedition tendeth to the disinheritance of the King; for, as it hath been said, Seditio est quasi seorsum-itio, when the People are severed from the King: or it is Separans a ditione, when the People are severed from the power of the King. And in this sense, Sedition is no stranger in our Law; and such sedition which severs the People from the King, is Treason.
But it hath been objected, That by the Statute of 25 E. 3. the Parliament ought only to determine what is Treason, what not. To this I answer, That upon the said Satute, the positive Law had always made expectation and exposition, Br. Treason 24. the words are, Compass or imagine the death of the King; and there it is taken, that he that malitiousy deviseth how the King may come to death, by words or otherwise, and does an act to explain it, as, in assaying harness, this is treason, 13 Eliz. Dy. 298. Doctor Story's Case, he being beyond-Sea, practised with a foreign Prince to invade the Realm, and held Treason, because invasion is to the peril of the Prince, and so within the Statute of 25 E. 3. 4. Mar. Dy. 144. The taking of the Castle of Scarborough was treason in Stafford by 30 ass. p. 19. which was presently after the making of the Statute of 25 E. 3. A man ought to have been hanged and drawn, that brought Letters of recommendement from the Pope, and published them in England: and it is to be noted, that at the same time there was no Statute to make it Treason, but upon construction of of the said Statute of 25 E. 3. though now it be made Treason by the Statute of 13 Eliz. if it be with intention to advance foreign Power. Perhaps the Sedition mentioned in this Return is high Treason, and yet the King may make it an offence finable, for he may prosecute the offender in what course he pleaseth; and if it be Treason, then the Prisoners are not bailable by the Statute of Westm. But, suppose that it is but a finable offence, yet by the Statute, those which are imprisoned for open and notorious naughtiness, shall not be bailed, the same naughtiness is there intended high exorbitant offence.
2. It is fit to restrain the Prisoners of their Liberty, that the Common-wealth be not damnified. It is lawful to pull down a house, to prevent the spreading mischief of Fire; it is lawful to restrain a furious man. And by the 14 H. 7. a Justice of Peace may restrain one rout. Then the restraint of dangerous men to the Common-wealth is justifiable and necessary, 24 E. 3. 33. p. 25. Sir Thomas Figet went armed in the Palace, which was shewed to the King's Council; wherefore he was taken and disarmed before the Chief Justice, shar'd and committed to the Prison, and he could not be bailed till the King sent his pleasure; and yet it was shewed, that the Lord of T. threatned him. Out of which Case I observe two things: first, that the Judge of this Court did cause a man to be apprhended, upon complaint made to the Council, that is, to the Lords of the privy Council. 2. That although he did nothing, he is not main-pernable until the King sent his Pleasure, because he was armed and seriously disposed. So here. Wherefore I pray, that the Prisoners may be sent back again.
Sergeant Davenport's argument against Stroud and Long.
Davenport argued to the same intent and purpose, and therefore I will report his Argument briefly.
- 1. He said, That the Return here is sufficient. The Council on the other five have made fractions of this Return, and divided it into the several parts, whereas the genuine construction ought to have been made upon the entire return; for no violence ought to be offered to the Text. 7 E. 4. 20. In false imprisonment, the Defendant did justifie and alledged several reasons of his justification; to wit, because a man was killed, and that this was in the County of S. and that the common voice and fame was, that the Plaintiff was culpable. And this was held a good plea, although Bryan did there object, That the plea was double or treble; and the reason was, because twenty causes of suspicion make but one entire cause; and indivisible unity in this ought not to be divided: So C. 8. 66. Crogates. In an action of Trespass, the Defendant justifies for several causes, and held good, because upon the matter, all of them make but one cause. C. 8. 1. 17. It is said, That it is an unjust thing, unless the whole Law be look'd into, to judge and answer, by propounding any one particular thereof; and if it be unjust in the exposition of a Law, it is uncivil in a Return to make fractions of it, in the construction thereof especially, it being a Return for Information, and not for Accusation.
- 2. Although the Councel on the other side have taken this Case to be within the Petition of Right, yet this is Petitio principii, to take that for granted which is the question in debate. He said, That he would not offer violence to the Petition of Right, to which the King had assented, and which shall really he performed. But the question here is, Whether this return he within it? and the Judges are Keepers, not Masters of this Pledge; and it seems, that this Return is out of the Letter and meaning of the said Statute.
- 3. He said, That this was the actual commitment of the Lords of the Privy Council, and the habitual or virtual commitment of the King. But because upon these two matters he put no case, nor gave any reason, but what had been put or given in the Argument of the grand Habeas Corpus, Mich. 3. Caroli, and afterwards in the House of Commons, which was reported to the Lords in the painted Chamber, (all which arguments I heard) I have here omitted them. And for the great respect which the Law gives to the commands of the King, he put these cases, 7 H. 3. Attachment of Waste against the Tenant in Dower, and the Waste was assigned in the taking of Fish out of a Pond, and the carrying them away. And the Defendant pleaded That her second Husband, by the command of the Lord the King, took all the Fish out of the said Pond to the use of the Lord the King, and held a good justification; which proves, that the command of the King there to her husband, excused her of the said Waste. And yet it is clear, that Tenant in Dower is liable to an Action of Waste, for Waste done in the time of her second Husband: But contrary is it, where a Woman is Tenant for Life, and took a Husband, who made Waste and dyed, no action lies against the Wife for that Waste. And F. N. B. 17. A. If the Tenant in præcipe at the grand cape makes default, the King may send a Writ to the Justices, rehearsing that he was in his service, &c. commanding them, that that default be not prejudicial to him; and this command of the King excuseth his default, be the cause true or no.
- 4. For the particulars of the Return, it is—for notable Contempts against the Government—But as to that, it hath been said, that the King hath sundry Governments, to wit, ecclesiastical, political, &c. and it is not shewn, against which of them. This is but a cavilling exception; they might as well have excepted to this Return, because it is not shewn, that these contempts were after the last general Pardon; that had been a better exception. The last words of the Return are,—raising Sedition against Us—But as to this it hath been said, That Seditio is not a word known in the Law, and is always taken either Adverbially, or Adjectively, and is not a Substantive. To this he said, That although it is not a Substantive for the preservation, yet it is a Substantive for the destruction of a Kingdom. And he said, That he found the word [Seditio] in the Law, and the consequent of it likewise, which is seductio populi. But it is not ever found to be taken in a good sense, its always ranked and coupled with Treason, Rebellion, Insurrection, or such like, as it appears by all those Statutes, which have been remembred on the other side. Therefore he prayed likewise, that the Prisoners might be sent back.
Trin. 5 Car. B. R.
Mr. Littleton's argument for Mr. Selden.
The first day of the Term, upon Habeas Corpus to Sir Allen Apsley the Lieutenant of the Tower, to bring here the Body of John Selden Esq; with the Cause of detention. He returned the same cause as above; and Littleton, of Counsel with him, moved, That the Return was insufficient in substance; therefore he prayed, that he might he bailed. It is true, that it is of great consequence, both to the Crown of the King, and to the Liberty of the Subject. But under favour, for the difficulty of Law contained in it, the Case cannot be said Grand. In my Argument, I will offer nothing to the Court, but that which I have seen withthese Eyes, and that which in my understanding (which is much subject to mistakes) can receive no sufficient Answer.
I will divide my Argument into four several Heads.
- 1. To point out these matters which I think unnecessary, and not conducible to the matter in question.
- 2. I will consider the Warrant of the Privy Council in this Case.
- 3. The Warrant of the King himself.
- 4. The objections which have been made by the contrary side, the Strength of them, and give answer to them.
For the first of these Heads, 1. I will admit, that the King may commit a man. 2. That a man committed by the King is not replebisable by the Sheriff, but he is Bailable by this Court, notwithstanding the Statute of Westm. 1 C. 15. And that he shall not be Bailable, is against the Petition of Right; I will not dispute it, for it is established by the Answer of the King to the said Petition. And the Arguments made to this purpose in the said Parliament, and in the painted Chamber before both the Houses, are recorded in Parliament, to which every one may resort. But I will lay as a ground of my following Argument, that as offences are of two natures, Capital, or as Trespasses; so they are punished in two manners, to wit, Capitally, or by Fine, or Imprisoment. For the offences of the first nature, as Treasons, and the like, Imprisonment is imposed upon the Offender, only for Custody; but for misdemeanors of the second nature, Imprisonment is imposed upon him for a punishment. Then this is my ground, That no Free-man that is imprisoned, only for misdemeanor before conviction, may be detained in Prison without Bail, if it be offered, unless it be in some particular cases, in which the contrary is ordained by any particular Statute.
- 2. For the Warrant of the Privy Council, which signifies the pleasure of the King to commit the Prisoner; perhaps this was a good ground of the Commitment, but it is no ground for the detaining of the Prisoner without Bail; and this the King himself hath acknowledged, as the ancient Right of the Subject, in the Petition of Right; wherefore it is not now to be disputed.
- 3. For the Warrant of the King, as it is certified by this Return, there is not any sufficient cause contained within it, for the detaining of the Prisoner in prison; for the Law being, as I have declared above, that for a misdeameanor before Conviction, no Free-man may be imprisoned before Conviction, without Bail or Mainprise, the sole question now is, If this Return contain within it any capital offence; or if only a Trespass or Misdemeanor, and then the Party is bailable: And for the disquisition hereof, I will consider the Return, 1. As it is divided in several parts: 2. I will consider all those parts of it together. 1. As it is severed in parts. The first part of it, [for notable Contempts by him committed against Our Self and Our Government] For [contempts] all contempts are against the King, mediately, or immediately, and against His Government. [Notable] this is all one with notorious and manifest, as appears by the Statute of Westm. 1. cap. 15. and 26 E. 3. 71. Which hath been remembred. And [Notable] is but an emphatical expression of the nature of the thing, and alters it not. [Against us] All Riots, Routs, Batteries, and Trespasses, are against Us, and against Our Crown and Dignity; contempt against any Court of Justice, is a contempt against Us. But if the Return were made here, that he was committed for a contempt made in Chancery, the Party shall he bailed, as it was resolved in this Court in Michael Apsley's Case, and in Ruswel's Case, 13. Jac. for the Returnis too general. C. 11. 98. In it the nature of the offence ought to be expressed, that the Court may judge thereof. And [contempts] here is individuum vagum; therefore for them, before conviction, the Party cannot be imprisoned without Bail or Mainprize.
The second part of the Return is, [And for stirring up of Sedition against Us] The other side said, That [Seditio] is ever taken in the worst sense. That is true. But hence it follows not, that the Party that commits it is not bailable. Every small offence is taken in the worst sense, as the stealing of an Apple, and the like; but such kind of offenders shall not be committed without bail. To examine the nature of this offence, which is called [Sedition] it ought to be understood, as this return is, either as Trespass, or as high Treason; for it cannot be intended to be petty Treason; for petty Treason is so called, in respect of the offence done to any particular subject; but in respect of the King, it is but as a Felony, therefore the indictments for the same are feloniously and traiterously. And here the words are,—Sedition against Us—so of necessity it ought to be intended of an offence, that more immediately concerns the King. For the discussing of this matter, First, I will consider in what sense and signification this word [Seditio] is used.
- 2. How it shall be expounded here by the relation thereof to the King.
- 3. What sense these words [against Us] shall have here.
- 1. For Sedition; it is not found in the division of offences in our Law, but as it is mingled and coupled with other offences. No Indictment of Sedition only was ever seen, nor can be shewn; Routs, Riots, and unlawful Assemblies, are much of the same nature with it, and do well express the nature of Sedition. The English word is drawn from the word [Seditio] in Latine, and the derivation of it is, as hath been observed, Se-itio, or Seorsum-itio; and the seditious (as one says) take a diversion, and draw others; It is used in the Bible, in Poets, Histories, and Orators, for a Tumult, or Hurly-burly, or Uprore, or confused noise,—Seditioque recens dubioque susurro, in Liv. lib. 2. cap. 44. And in Tacitus it is taken for Mutiny in an Army, when the Army is always repinning at the Captain. In the Italian Language, which is the elder son of latine, Sedition and Discord is all one, Numb. cap. 20. 3. the Latine Translation is, Versi in seditione; the English is chode, or murmured. Numb. 26. 9. the Latine is, In seditione Corah; the English is, In the company of Corah. Numb. 27. 3. the Latine is, Nec suit in seditione eorum; the English is, In the company or assembly of them. Judg. 12. 1. the Latine Translation is, The men of Ephraim gathered themselves together. In the New Testament, Acts 19. 40. Sedition in the Latine is translated Uprore, or Meeting. Acts 15. 2. Facts est ergo seditio, &c. and it is translated Dissention, and Disputation. Acts. 24. 5. Tertullus the Orator accuseth Paul for moving Sedition; and the subsequent words are, A Ring-leader of the Sect of the Nazarens; so that his sedition there was but a schism: And the words there are in a manner the very same with ours here; there it was, for moving; here, for stirring of Sedition. Seditio, as an approved Authour says, imports discordiam, to wit, when the members of one body fight one against another. The Lord of St. Albans, who was lately the Lord Chancellor of England, and was a Lawyer, and great states-man likewise, and well knew the acceptation of this word [Sedition] in our Law, hath made an Essay of Sedition, and the Title of the Essay is, of Seditions and Tumults. The whole Essay deserves the reading. And there is a Prayer in the Litany,—From Sedition and Heresie, &c. So that here Sedition is taken as a kind of Sect.
This being the natural signification of the word, then the next labour shall be to see, if any thing in our Law cross this exposition. And it seems clearly, that there is not. 2 H. 4 cap. 15. And it is in the Parliament-Roll, Numb. 48. against Lollards, who at that time were taken taken as Hereticks, says, That such Preachers which excite and stir up to sedition, shall be convented before the Ordinary, &c. There, sedition is taken for dissension and division in Doctrine. And this is not made Treason by the said Statute, although the said Statute be now repealed by the Statute of 25 H. 8. c. 4. 1 and 2 Phil. & Mar. c. 3. which is in Rastal, News 4. which is an act against seditious words and news of the King and Queen, which is a great misdemeanor; and yet the punishment appointed to be inflicted by the said Statute, is but the Pillory, or a Fine of 100 l. And the said Statute, by the Statute of 1 Eliz. c. 16. was extended to her also, which Statute now by her death is expired: which I pray may be observed, 13 Eliz. cap. 1. against those who seditiously publish who are the true Heirs of the Crown, that they shall be imprisoned for a year, &c. And 13 Eliz. c. 2. the seditious bringing in of the Popes Bulls is made Treason, which implies, that it was not so at the common Law. 23 Eliz. c. 2. If any person shall devise write, or print any Book, containing any false, seditious and slanderous matter, to the stirring up or moving of any rebellion, &c. every such offence shall be adjudged Felony. And in an Indictment upon the said Statute, which see Cooks Entries, f. 352, 353.) there are the words—rebellionem & seditionem movere; and yet it is but Felony, 35 Eliz. c. 1. made against seditious Sectaries. Also there are certain Books and Authorities in law, which express the nature of this word Sedition, C. 4. 13. the Lord Cromwel's Case. In an Action for those words, You like of those that maintain seditions against the Queens proceedings, the Defendant pleaded, That he intended the maintenance of a sedious Sermon; and this was adjudged a good plea and justification. From which it follows, that the seditious Sermon mentioned in the Declaration, and the maintaining of sedition against the Queen, is all of one signification; for if they might have been taken in a different sense, the justification had not been good. Philips and Badby's Case, which is in C. 4. 19. a. which was objected by Sergeant Berkley, makes strongly for me; for there an action upon the case was brought by a person, for those words, [Thou hast made a seditious Sermon, and moved the People to Sedition this day.] And although it were there adjudged, that the action lay, yet the reason of the Judgment is observable, which was, because the words scandalize the Plaintiff in his profession; which imply, that if they had not scandalized him in his profession, no action would have lain. And ordinary words, if they scandalize a man in his profession, are actionable; as to say to a Judge, that he is a corrupt man; or to a Merchant, that he is a Bankrupt; although if they were spoken to another man, they would not bear an action. And although the Book say, that no act followed there; yet if the matter objected had been treason, the very will had been punishable, and, by consequence, a great slander. But it is observed, that words which imply an inclination to sedition, are not actionable, as seditious Knave; but inclination to treason, is treason, therefore words which imply it are actionable. And also for divers words, an action upon the case will lie, which induce not Treason or Felony; as, for calling a Woman Whore, by which she loseth her Marriage, and such like. Then sedition is no offence in it self, but the aggrabation of an offence; and no Indictment (as I have said afore) was ever seen of this singly by it self. Tr 21. E. 3. roll. 23. Sir John Garbut's Case, which was put before by Mason, the Indictment was in prejudice of his Crown, and in manifest sedition, and yet the offence there was but a Robbery. It it is true, that upon his arraignment he stood mute, therefore the roll is, that he was put to pennance, that is, to strong and hard pain; and this proves, that it was not treason; for if a man arraigned of treason stand mute, yet the usual judgment of treason shall be given on him. And it is true also that he cannot have his Clergy, because insidiator viarum was in the Indictment; which if it was, outs the Party of its Clergy, until the Statute of 4 H. 4. c. 2. as is observed in C. 11. Alexander Poulter's Case. And upon the same Roll of 21 E. 3. there are four other Indictments of the same nature, where [Seditiose] is contained in them. Anno 1585. Queen Elizabeth sent a Letter (which I have seen by the hands of the noble Antiquary, Sir Robert Cotton) to the Mayor of London, for the suppressing of divers seditious Libels, which were published against her princely Government; and yet in the conclusion of the Letter it appears, that they were only against the Earl of Leicester, and this was to be published only by Proclamation in London.
See Fortescue f. 115. the which was not cited there never Sedition, Strife, or Murmur is heard.
5 H. 4. numb 11. and 13. The Earl of Northumberland preferred a Petition to the King in Parliament, in which he confesseth, that he had not kept his Majesties Laws as a liege Subject; & also confesseth the gathering of power, and the giving of Liveries: wherefore he petitioned the worship of the King (for so are the words) for his grace. The King upon this Petition, demanded the opinion of the Lords of Parliament, & of the Judges assistant, if any thing contained with in the said Petition were treason, or no; and it was resolved by them all, that nothing as it is mentioned in the said Petition was treason, but great misdeameanors; & yet truly, tho' not fully there mentioned, it was a great rebellion & insurrection. But they adjudged according to the said Petition, as you are now to judge upon the Return, as it is made here. In Mich. 33 Eliz. Cawdry's Case, Sedition & Schism were described. As Schism is a separation from the the unity of the Church, so Sedition is a separation from the unity of the Commonwealth. And an Author says, That a seditious person differs from a schismatick, because the one opposeth the spiritual truth, the other the temporal: And as Schism of it self is not Heresie, so Sedition without other adjuncts is not Treason. Bracton, f. 112, 113, 118. hath been objected, that he makes Sedition Treason: I will grant to them, Hengham also, who is to the same purpose; for in those Books it is called, Seditio Regis & Regni. To them I answer, 1. That they are obscure. For what signifies seditio Regis, or tumultus Regis? shall it be the same thing in sense with seditio contra Regem? It seems that the said Authors neither remember Law nor Language. 2. Although they reckon Sedition amongst the crimes læsæ Majestatis, yet that is not to be regarded; for they are obsolete Authors, and are not esteemed as Authors in our Law, as it is in Pl. 356. and C. 8. 35. but they may be used for ornament, and they are good marks to shew to us, how the Law was then taken, but not to declare how the Law is at this day; they are no binding authority; and if they be, yet we have them of our side likewise: For in his 14 Book Glanvil says, That a man accused of such a crime shall be bayled, and that the Accuser shall give pledges. And Bracton says, That if no Accuser appears, they shall be set at liberty. And Hengham reckons amongst the crimes læsæ Majestatis, the breach of the Peace, and so does Glanvil also. Fleta, who was a follower of Bracton, and transcribes much verbatim out of him, calls Sedition, Seductionem of the Lord the King. And 12 Edw. 1. the Sature of Rutland, which prescrives Laws for Wales, enacts, That the Sheriff shall enquire in his Turn, de Seductoribus Domini Regis; and it is not apparent, whether he intend those which seduce the King or his People. And in latter times, Seditio is called Sedutio. In the time of Henry the Seventh, the Earl of Northumberland, being a great and potent Peer; and the King standing in awe of him, caused him, with twenty four others of great Quality, to enter in an Obligation of Twenty thousand Pounds (which Obligation is in the Hands of Sir Robert Cotton) unto him, That if the said Earl knew Treason, Sedution, Loss, &c. to be intended to the King, that he should reveal it. 3. Also, Crimen læsæ Majestatis, which is the Phrase of the Civil-Law, is more general than Treason: and the old Authors, which have been cited much, follow the Civil-Law, which hath this Expression; and Sedition by the Civil-Law is Treason. But it was resolved, 11 R. 2. n. 14. We are not governed by the Civil-Law. And the Mirrour of Justices, the principal Copy whereof is in Benet-Colledge Library in Cambridge, and there is also a Copy in Lincolns-Inne Library; nor Britton in his Book, who writ in the name of the King, have not the word Seditio in them. And I affirm confidently, that there cannot be shewn any Record, Book, or Statute, after the making of the Statute of 25 Edw. 3. in which Seditio is taken as a capital offence. And yet the Mirrour of Justices reckons up several kinds of Treasons, which he divides into Treasons against the Celestial or Terrestrial Majesty; against the Celestial Majesty, as Schism, Heresie, Miscreancy, (and according to this, the Book of 5 R. 2. Trial 54. is to be understood, which says, That a Miscreant shall forfeit his Lands, because it is a kind of Treason.) And also he shews divers Treasons against the King, as, The deflouring of the Kings eldest Daughter, &c. but not a word of Sedition. But admit, that Sedition imports a greater offence then Tumult, yet there is no colour to say, that it is Treason; for, 25 Edw. 3. is a flat Barre (that I may use the Inner-Temple phrase) to any thing to be Treason. Stamford cites Glanvil, and Bracton, and other ancient Books, to shew what was Treason before the said Statute, and what not: And he says, That it was a great doubt what shall be said Treason; saving that all agree, that any thing that tends to the death of the King was Treason. 3ly. Now examine the words,—against Us—those words make not the crime more heinous, as the case is. I agree, that if the words had been,—Sedition to take away the life of the King—it would have been Treason; yea, the very thought of Treason is Treason, (though none can judge thereof till it be produced in act) 19 H. 6. 47 b. by Newton, 13 Jac. B. R. John Owen's case, the writing of a Letter, whereby he intended the death of the King, was Treason; but it is not expressed, that the raising of this sedition was with such intent, whereby this differs from all the cases which can be put, in which there is such an intent of the death of the King. Also this raising of sedition against Us, shall not be intended Treason; for if it had been so, the King would have so expressed it by the word Treason: For, as in his gracious disposition, he will not extend a fault beyond the magnitude thereof, so he will give to every offence the true and genuine name. If the Return had been,——against our Person——it had been more certain, that it concerned the King immediately; this, may be against any Point of his Government. And the proper and natural signification of the words,——against Us——is as much as, against Our Authority, Our Superintendency, against Our Peace, Crown, and Dignity, which are the usual words in every Indictment of Felony. Every breach of the Peace is against the King. The usual Return upon every ordinary Writ out of this Court, is, That the party be before Us; and Contempt to this Court is, Contempt against Us, and it is in the nature of sedition to the King. Contempts to the Court of Star-chamber, are Contempts against Us; and upon them, Commissions of Rebellion issue; and if the parties are brought in upon such Commissions, yet they are bailable until their conviction. The King styles himself, Us, in Writs; and every disobedience to any Writ may be said, Sedition against Us. Routs, Riots, illoyal Assemblies, may well be said and called, Sedition against Us: And for such offences, a man shall not be restrained of his liberty upon an [it may be] Such a Return is necessary, by which the Court may be truly informed of the offence. For the Writ of Habeas corpus is, to submit and receive what the Court shall ordain. And this Return of this nature is not to be compared to Writs which are general, and make a brief narration of the matter, and are pursued and explained by subsequent declarations. And yet I urge not, that the Return ought to be as certain as an Indictment; for an Indictment of Murder is not good, if it lack the word Murdravit. But the Return upon an Habeas corpus, q. d. interfecit I. S. upon prepensed malice, is good; for the nature of the thing is expressed, although the formal word be wanting; but out of the Return, the Substance of the offence ought always to appear, which appears not here. But it hath been said by the other side, That, let the cause in the Return be as it will, yet is it not traversable, 9 H. 6. 54. and I confess it. But as C. 11. James Baggs case is, the Return ought to have certainty so much in it, that, if it be false, the Party grieved may have his action upon the case. And the grievance complained of in the Petition of Right is, That upon such Return no cause was certified, that is, no such cause upon which any Indictment might be drawn up; for we never understand, that the Party shall be tried upon the Habeas corpus, but that upon the matter contained within it, an Indictment shall be made, and he shall have his trial upon it. And yet it is clear, and it hath been agreed of all hands, in the Argument of the grand Habeas Corpus, Mich. 3 Car. in this Court, that if the cause be certified upon the Return of the Habeas corpus, that the Court may judge of the legality of that cause. 2. Consider the parts of this Return, as they are coupled together,—for notable contempts by him committed against Our Self and Our Government, and sor stirring of sedition against Us—Upon the entire Return, the King joyns Sedition with notable contempts, so that it is as much as if he had said, that Sedition is one of the notable contempts, mentioned in the first part of the Return, so that he makes it but a contempt. For the generality and incertainty of the Return, I refer my self to the Cases put by Mr. Ask, and I will not wave any of them. True it is, if the Return had been, that it was for Treason, he had not been bailable but by the discretion of the Court, and such Return would have been good; but it is not so of Sedition. Gard. 157. Treason is applied to a petty offence, to the breach of Trust by a Guardian in Socage; but it is not Treason. And so Sedition is of far less nature than Treason, and is oftentimes taken of a Trespass; it is not Treason of it self, nor seditiose was never used in an Indictment of Treason. It was not Treason before the 25 of Edw. 3. nor can it be Treason: for 25 Edw. 3. is a flat Barre (as I have said before) to all other offences to be Treason, which are not contained within the said Act, or declared by any Statute afterwards. And there are offences which are more heinous in their nature than Sedition is, which are no Treason, as Insurections, &c. which see in the Statute 11 H. 7. cap. 7. 2 H. 5. cap. 9. 8 H. 6. cap. 14. 5 R. 2. cap. 6. 17 R. 2. cap. 8. and by 3 and 4 E. 6. cap. 5. the Assembly of twelve Persons to attempt the alteration of any Law, and the continuance together by the space of an hour, being commanded to return, is made Treason; which Act was continued by the Statute of 1 Mar. cap. 12. and 1 Eliz. cap. 16. but now is expired by her death, and is not now in force, (although the contrary be conceived by some) which I pray may be well observed. By the Statute of 14 Eliz. cap. 1. rebellious taking of the Castles of the King is made Treason, if they be not delivered, &c. which shews clearly, that such taking of Castles in its nature was not Treason. But the said Statute is now expired; and also all Statutes, creating new Treasons, are now repealed. But, for a conclusion of this part of my Argument, I will cite a Case, which I think express in the point, or more strong than the Case in question; And it was M. 9 E. 3. roll. 39. B. R. Peter Russel's Case; He was committed to Prison by the Deputy-Justice of North-Wales, because he was accused by one William Solyman of Sedition, and other things touching the King: And hereupon a Commission issued out of the Chancery, to enquire, if the said Peter Russel behaved himself well or seditiously against the King; and by the inquisition it was found, that he behaved himself well. And upon an Habeas corpus out of this Court, his Body was returned, but no Cause. But the said Inquisition was brought hither out of Chancery, and for that no cause of his caption was returned, he prayed delivery: but the Court would not deliver him, till it knew the cause of his Commitment: Therefore (taking no regard of the said Inquisition) they now send a Writ to the now Justice of Wales, to certifie that cause of his commitment. And thereupon he made this Return. That the foresaid Peter Russel was taken, because one William Solyman charged him, that he had commited divers seditions against the Lord the King; and for that cause he was detained, and for no other. And because the Return mentions not what sedition in special, he was bailed, but not discharged. And I desire the bailment of the Prisoner only, and not his deliverance. I desire that the Case be well observed. In the said Case, there was an actual sedition against the King; here is only a stirring up of sedition. The words of the said Award are, Videtur curiæ; which are the solemn words of a Judgment, given upon great deliberation. There it was,——for other things concerning Us——This is all one as if he had said——for other things against Us——Concerning the King, and, against the King, are all one, as appears by 25 E. 3. c. 4. de Clero Stamf. 124. Westm. 1. c. 25. Bracton, f. 119. 14. Eliz. c. 2. And the words of the Judgment in the said Case, were not,——dimittitur——but,——ideo dimittendus——which imply the right of the Party to be bailed. The said case in some things was more particular than our case, and more strong; for, there was an Accuser to boot which wants in our case. There, true it is, that he was committed by the Justice of Wales, and here by the King himself; but this makes no difference, as to this Court: for, be the Commitment by the King himself, or by any other, if it be not upon just cause, the Party may be bailed in this Court. And for the Inquisition, which is mentioned, it was no Trial in the case; nor did the Court give any regard thereto. To detain the Prisoner by the command of the King singly, is against the Petition of Right; but it being coupled with the Cause, the Cause is to be considered, and the truth of the Cause is to be intended, as well where it is mentioned, to be by an inferiour Judge, as where by the King himself, for it is traversable neither in the one nor other. And 22 H. 8. roll. 37. B. R. and 1 H. 8. roll. 8. Harrison's Case resolved, That a man committed by the command of the King, is bailable. And 33 Eliz. it was resolved by all the Justices of England, which I have viewed in Chief Justice Anderson's Book, under his own hand, and it was produced in Parliament, That all men committed by the Privy Council are bailable, if the commitment be not for high Treason. In all cases of Commitment, an Accuser is understood. Suppose that the accusation mentioned in Russel's Case of Sedition, had been an accusation of Treason, then the Judges ought not to have bailed him of right, and no man will say, but that the said accusation was a good cause to commit him. But the discovery of the offence ought to be afterward in an Indictment.
Fourthly, I come to the objections which have been made on the contrary.
1. It was objected, That this was a case of great consequence. I confess it, but this consequence is not to the King; for if it be truly Treason, then they might have returned Treason, and then the Party was not to be bailed of right, till there should be a failer of prosecution; as was lately in Melvin's Case, who was bailed for lack of prosecution; the Return being for high Treason.
2ly. It was objected, That there can be no conviction, as this case is, therefore there ought to be coercive power to restrain the Prisoner. This is strange news to me, that there shall be an offence, for which a man cannot be convict. And it there can be no conviction, it hence follows, that there is no offence; and if there be no offence, there ought by consequence to be no imprisonment.
3ly. The Case of 14 H. 7. 8. hath been objected, that a Justice of Peace may commit Rioters without bail. I confess it, for this is by force of a Statute which ordains it.
4ly. It hath been objected, That if an house be on fire, it is lawful to pull down the neighbours house, for the prevention of further mis-chief; and the Cases of 22 ass. and 22 E. 4. that every man may justifie the coercion of a mad-man. I answer, that these Cases are true, for of necessity, and no other evasion: but here, bail is proffer'd, which is, body for body. Fore is swift, and cannot be punished, and no caution can be obtained thereof. But observe the true inference and consequence of this Argument, If my house be on fire, my neighbours house must be pulled down; Mr. Selden is desitious, ergo, Mr. Herbert his neighbour must be imprisoned.
5ly. It hath been objected out of Br. Treason, 24 1 Mar. That the said Statute of 25 E. 3. is taken largely, and that the detaining of a Castle or Fortress is Treason To this I answer, that the bare detaining of a Castle is not Treason, unless it be with intention of the death of the King; but the taking of a Castle is Treason. And the Case there meant by Brook, is Constable's Case, Dy. 128. And I confess, 13 Eliz. Dy. 298. Doctor Story's Case, that conspiracy to invade the Kingdom, is Treason; for this cannot be without great danger of the death of the King; for,—arma tenenti, Omnia dat qui justa negat—and all those Indictments were, that they intended the death of the King; but no such intention is expressed here.
6ly. It hath been objected, That this Case is out of the Petition of Right, because in this Return there is a cause shewed. But the grievance whereupon the Petiton of Right was framed, was, where no cause was returned. It is true, that the grievance goes no further, but where no cause was returned, for that was the grievance at that time. But the words of the Petition of Right are further,—without being charged with any thing, to which they might make answer by the Law—which implies, that such Cause ought to be contained in the Return, which being put into an Indictment, the Party may have his Answer thereto.
7ly. It was objected, That the Return shall not be construed and expounded by fractions. I answer, That we need not make such an exposition; for the joynt-construction thereof makes more for us, then the several, as is shewed before.
8ly. That a general Return is sufficient, and it need not have terms of Art in it, as an Indictment ought to have. For answer, I confess it; but I affirm, as above, that a Return ought to be so particular, that the nature of the offence ought to appear out of it: and it is not to be compared to general Writs, as, Apostata capiendo, Idiora examinando, Leproso amovendo, and the like: for those Writs are good enough, because they contain the very matter. And although it hath been said, that there are two kinds of Lepers, yet I never heard but of one, And the Writ, de Hæretico comburendo, is general, and good, because it is but a Writ of execution upon a Judgment, given by the spiritual Power. But because they might not meddle with the bloud of any man, the execution is by the secular Power.
9ly. It hath been objected out of 30 ass. p. 19. that the King would have one drawn and hanged, for bringing into England the Bulls of the Pope. But the Book answers it self, for he was not drawn and hanged.
10ly. The Statute of Westm. 1. cap. 15. was objected. But as oft as that Statute is objected, I will always cry out, The Petition of Right, The Petition of Right! as the King of France cried out nothing but France, France! when all the several Dominions of the King of Spain were objected to him.
11ly. A curious distinction hath been taken by Sergeant Davenport, between stirring To Sedition, and stirring Up Sedition; for the first implies an inclination only to do it, the second implies an act done. But this is too nice, for if a man stir up Sedition, or to Sedition, if it be with intention of the death of the King, the one and the other is Treason.
12ly. The opinion of Fortescue in 31 H. 6. 10. b. hath been objected, That for an offence done to the Court, a man may be committed before Conviction. To this I answer, 1. That the Book does not say; That he shall be committed without Bail. 2. The offence being done in face of the Court, the very view of the Court is a conviction in Law.
13ly. There was objected the 24 of E. 3. 23. Sir Thomas Fitchet's Case, who, for going armed in the Palace, was committed by this Court without Bail or Mainprize; which seems to be the strongest and hardest Case that hath been objected. But the answer to it is clear, and undeniable; for the Statute of 2 E. 3. c. 3 is, That if any one come armed before the Justices, he shall forfeit his Armour, and shall be imprisoned during the Kings pleasure; so that by the express purview of the Statute, such a man is not bailable. So my conclusion remains firm, notwithstanding any of those objections. That the Prisoner here being committed before conviction of any offence, (it being not possible to understand this offence Treason) is bailable. And that he is bailable here, I will offer two other reasons: 1. The Return is here for Sedition; and thare is an information in the Star-chamber against the Prisoner, for seditious practises against the King and his Government. I will not affirm, that they are the same offence, but there is some probability that they are the self-same; and if they be the same offence, then the Sedition here intended is not Treason, and so the party is bailable. 2. This Prisoner was ready at this Bar the last Term, and here was a Grand Jury at Bar the last Term, and here was the Kings Counsel present, who are most watchful for the King; and yet an Indictment was not preferred to them against this Prisoner. Which things induce me to be of opinion, that the offence here mentioned in this Return is not Treason, or so great as is pretended on the other five. I will remember one Case which perhaps may be objected, (and yet I think they will not object it) and so conclude. 11 R. 2. Parliament Roll 14. in the Printed Statute, c. 3. and 5. where it appears, that divers questions were propounded by the King to Tresilian and Bealknap, the two chief Justices, and to the other Justices: one of which questions was, how they are to be punished, who resisted the King in exercising his royal Power, &c. And the answer of the Judges was, una voce, that they are to be punished as traitors; and 21 R. 2. c. 21. this opinion was confirmed. But afterwards in 1 H. 4. c. 3 and 4. and 1 H. 4. in the Parliament-Roll, numb. 66, 67. the Judges were questioned, for their opinion, in Parliament. They answered, That they were threatned an enforced to give this opinion, and that they were in truth of the contrary opinion. And Bealknap said, That he acquainted and protested to the Earl of Kent aforehand, that his opinion was always to the contrary. But the Parliament was not content with these excuses, but they were all adjudged Traitors; and Tresilian's end is known to all, and Bealknap was banished; for his Wife, in 2 H. 4. brought a Writ, without naming her Husband, because he was banished. And the said Stat. of 21 R. 2. was repealed. Therefore upon the whole matter I conclude, that the Prisoner ought to be bayled.
On the same day, Sir Miles Hubbart, and Benjamin Valentine, and Densil Hollis Esquires, were at the Bar, upon an Habeas corpus directed to the several Prisons; and their Counsel was ready at the Bar to have argued the case for them also: But because the same Return was made as above, they said, That all of them would rely upon this Argument made by Mr. Littleton.
Sir Robert Heath, the King's Attorney General, his Argument against Mr. Selden.
The Case of the grand Habeas corpus for Mr. Selden and others, was now argued by Heath, the Kings Attorney General, That this Return was good, and that the parties ought not to be bailed: And that within the Return there appears good cause of their commitment, and of their detaining also. The case is great in expectation & consequence: and concerns the liberty of the Subject on the one part, whereof the argument is plausible; and on the other part it concerns the safety & soveraignty of the King, which is a thing of great weight. The consideration of both pertains to you the Judges, without sleighting the one, or too much elevating the other. The Return, which now is before you, is entire; but I will first consider it as divided in parts. First, the first Warrant, which is that of the Lords of the Privy Council, is general, that it was by the command of the Lord the King: and this in former times was held a very good return, when due respect and reverence was given to Government; but, Tempora mutantur. And this Return is no way weakned by any latter opinion; for notwithstanding that, the first commitment of a man may be general: for if upon the Return, the true cause should be revealed to the Gaoler, by this means, faults should be published & divulged before their punishment, and so the complices of the fact will escape; & it is not fit that the Gaoler, which is but a ministerial Officer, should be acquainted with the secrets of the cause. But when the cause is returned in Court, more certainty is requisite; for then (as it hath been objected) something ought to be expressed to which the Party may answer, and upon which the Court may ground their Judgment. And to this purpose, it hath been much insisted upon the Petition of Right; but the Law is not altered by it, but remains as it was before. And this will appear upon the view of all the parts of the Petition. 1. The occasion of the Petition, and the grievance is shewed in these words, Divers of your Subjects have been of late imprisoned, without any cause shewed, &c. But in this Return there is a cause shewed, to which the parties may answer. Then, 2. The Prayer of the Petition is, That no freeman, in any such manner as before is mentioned, the imprisoned or detained; that is, such manner of imprisonment, the ground whereof doth not appear. Then the answer of the King to the Petition was in sundry words, 2 Jun. 1628. in these words, The King willeth, that right be done according to the Laws and Customs of the Realm, &c. Which answer gave not satisfaction. And afterwards his answer was in a Parliamentary phrase, Soit droit sait come est desire. But afterwards on the 26 of June, 1628. the King expressed his intention & meaning on the said Answer: It must needs be conceived, that I have granted no new, but only confirmed the ancient Liberties of my Subjects, &c. A Petition in Parliament is not a Law, yet it is for the honour and dignity of the King, to observe and keep it faithfully; but it is the duty of the People not to stretch it beyond the words and intention of the King. And no other construction can be made of the Petition, then to take it as a Confirmation of the antient liberties and rights of the Subjects. So that now the case remains in the same quality and degree, as it was before the Petition. Therefore we will now consider, how the Law was taken before the Petition, & for the discussing thereof, we will examine the second part of the Return, and in it, two things. 1. If the Return, as it is now made, shall be intended for true. 2. Admit that it is true, if there be any offence contained within it, which is good to detain the Prisoners. For the first, it is clear, that the cause shall be intended true which is returned, though in truth it be false; & so are 9 H. 6. 44. and F. Corpus cum causa, 2. & C 11. Baggs case. 2. It seems, that thereis such a crime contained in this Return, which is a good cause for detaining the Prisoners. It is true, that it was confidently urged in Parliament, in 3 Car. that general Returns, that were committed by the command of the Lord the K. are not good; & that those Arguments remain as Monuments on record, in the Upper House of Parliament; but I will not admit them for Law. But I will remember what was the opinion of former times, 22 H. 6. 52. by Newton, a man committed by the command of the King, is not replevisable. And the opinion cannot be intended of a Replevin made by the Sheriff, because the principal case there is upon a Return in this Court. 33 H. 6. 28. Poyning's case, where the Return was, That he was committed by the Lords of the Council, & it was admitted good. It is true, that this opinion is grounded upon West. 1. c 15. but I will not insist upon it. But the constant opinion hath always been, that a man committed by the command of the K. is not bailable. In 9 H. 6. 44. it is said, That if one be taken upon the Kings suit, the Court will not grant a Supersedeas. The contrary opinion is grounded upon Magna Charta, which is a general Law, and literally hath no sense to that purpose; & it is contrary to the usual practise in criminal causes, in which the imprisonment is always lawful until the trial, although it be made by a Justice of Peace, or Constable. And that a man committed by the command of the King, or Privy Council, is not bailable, he cited 1 Jacobi, Sir John Brocket's Case. 8 Jac. Sir Thomas Cesar's Case. 12 Jac. James Demetrius's Case. 43 Eliz. William Rinch's Case. And in the Case M. 36 Eliz. and 4 and 5 Eliz. Richard Thimelby's Case. And said, That there are innumerable presidents to this purpose. M. 21 and 22 Eliz. upon the Return of an Habeas Corpus it appears that Michael Page was committed by the command of the Lord the King, but was not delivered; and after was arraigned in this Court, and lost his hand. And at the same time, Stubbs was committed by the command of the Lord the King, for seditious words and rumours, and he lost his hand also upon the same Trial. M. 17 and 18 Eliz. Upon Habeas corpus for John Loan, it was returned, That he was committed for divulging sundry seditious Writings, and he was remanded. And 7 H. 7. roll. 6. Rug's Case; and roll 13. Chase's Case, where the Return was, That they were committed by the command of the Lord the King, and they were not delivered. And this was also the opinion in this Court, M. 3 Car. and after the said time the Law is not a altered, and so, I hope, neither are your opinions. But to consider the particular cause mentioned in the Return, I will not relie upon the first part of the words, although they be of great weight, but only upon the last words,——for stirring up of sedition against Us——But it hath been objected, that Sedition is not a word known in the Law: But I marvel that the signification of the word is not understood, when it is joyned with the words,——against Us——this ought to be understood, Sedition against the King, in his politick capacity. [Sedition] hath sundry acceptations, according to the subject handled, as it appears C. 4. Lord Cromwel's Case, which hath been cited. If it be spoken of a man, that he is seditious; if it be of a Company in London, it shall be understood sedition in the Company; if it be spoken of a Souldier, it shall be taken for mutinous. Mr. Littleton, who argued this Case very well, said, That Tacitus useth this word, and it is true; and he says, That there are two manners of Seditions, Seditio armata & togata; and the last is more dangerous then the former. But couple it with the subsequent words here, [against Us] the interpretation and sense thereof is easie, & loquendum ut vulgus. Mr. Littleton shews the acceptation of this word in divers places of Scripture, and I will not reject them, sor they make for me: 20 Numb. 3. the Latine is——populi versi sunt in seditionem; and it is englished,——murmuring——but clearly it was high Treason against the Governour, and God himself. 26 Numb 9. in seditione Corah——it is manifest, that that was a great Insurrection. 12 Judg. 1. Facta est ergo seditio in Ephraim, The Ephramites rose against Jephtha; and he at the same time was their Judge and Governour, so it was the heighth of Insurrection. It is true, that in 15 Acts 2 facta est seditio; and in some Translations it is, Orta est repugnantia non parva, for it may be taken in several senses. 19 Acts 40. The Town Clerk there knew not how to answer for this days sedition, or insurrection; and no doubt he was in great peril, for it was a great insurrection; and I wish the greater ones were as circumspect as he was. 24 Acts 5. Tertullus accused Paul of sedition, and doubtless it was conceived a great offence, if you consider the time and other circumstances, for they were Heathens and Romans. And although he in very truth taught the Gospel of God, yet he was taken for a pestilent Fellow, and as a Perswader to shake off Government. Bracton lib. 3. de Corona, c. 2. ranks Sedition amongst the crimes, læsæ Majestatis. But it hath been objected, that if it be a capital offence, it ought to be Felony or Treason. To this I say, That it cannot be Felony, but it may be Treason, for any thing that appears. It is true, that by the Statute of 25 E. 3. Treasons and declared, and nothing shall be said Treason, which is not comprised within the said Statute, unless it be declared so by Act of Parliament. But upon Indictment of Treason, such Sedition as this may be given in evidence, and perhaps will prove Treason. And the Return is not, that he was seditious, which shews only an inclination; but that he stirred up sedition, which may be Treason, if the evidence will bear it. In divers Acts of Parliament, notice is taken of this word [Seditio] and it is always coupled with Insurrection or Rebellion, as appears by the Statutes of 5 R. 2. c. 6. 17 R. 2. c. 8. 2 H. 5. c. 9. 8 H. 6. c. 14. 3 & 4 E. 6. c. 5. 2R. 2. c. 5. 1 and 2 Phil. & Mar. c. 2. 1 Eliz. c. 7. 13 Eliz. c. 2. 23 Eliz. c. 2. 27 Eliz. c. 2. and 35 Eliz. c. 1. all which were cited before, and they prove, that [Sedition] is a word well known in the Law, and of dangerous consequence, and which cannot be expounded in good sense. Wherefore the nature of the offence, I leave it to the Court. But out of these Statutes it appears, that there is a narrow difference between it and Treason, if there be any at all.
3ly. As to the Objections which have been made, I will give a short Answer to them.
1. It was objected, That every imprisonment is either for custody, or punishment; the last is always after the Judgment given for the offence; and if it be but for custody, the Party upon tender of sufficient Mainpernors is bailable. I confess, that this difference is true, but not in all respects; for I deny, that a man is always bailable, when imprisonment is imposed upon him for custody: For imprisonment is for two intents; the one is, that the Party which had offended, should not avoid the judgment of Law; the second is, that he shall not do harm in the interim during his Trial; and the Law is careful in this point. But it hath been said, That although the Party be bailed, yet he is imprisoned. I deny that, for so is 1 H. 4. 6. If the Party come not at the day, the Bail shall be imprisoned; but yet the Bail shall not suffer the same punishment which ought to have been inflicted upon the Party; as if it were for Treason, the Bail shall not answer for the fault, but only for the body. Sergeant Berkley did well call a seditious man an Incendiary to the Government; and, as commune incendium, is to be restrained of his liberty. And he put 22 E. 4. and 22 ass. 56. that a mad-man may be restrained, to prevent the hurt he would otherwise do himself and others. A seditious man is a mad-man in the publick state of the Common-wealth, and therefore ought to be restrained. And it appears by the Writ, de Leproso amovendo, that a Leper is to be removed, and, in a manner, imprisoned, for the contagion of the disease; and this is for the safeguard of others, lest his Leprosie infect others. The application is easie, and by the Statute of 1 Jac. c. 33. is restrained to keep within doors; and if he go abroad, any man may justifie the killing of him. The infection of Sedition is as dangerousas any of these diseases; therefore it is not safe to let seditious men to bail, or at liberty, and in dangerous cases, the wisest way s, to make all safe. In all cases of this nature, much is left to the discretion of the Court. The case of M. 9 E 3. roll. 39. Russel hath been objected, to be in the point; I have viewed the Record of that case, and although it be verbally, yet it is not materially to this purpose; for the commitment was by a Justice of North-Wales, upon the accusation of an accuser; and it was within a short time after the Statute of 5 E. 3. by which it was ordained, That none should be imprisoned upon the accusation of one accuser: but here the detainment is by the King himself, for stirring up of sedition. And there the Return was, That he was accused of seditions and undecencies, where the latter word doth qualifie the former. And there issued a Writ of good behaviour, (as the use was) to enquire of the truth of the offence; and it was found, that there was no such offence: and then upon the same Return again he was set at liberty; so that the case there was special, and the manner of proceedings special. And I desire that one thing may be observed, that Russel came in here upon the Habeas Corpus, 20 Sept. but was not delivered until Hillary Term following. And for 28 H. 6. the Duke of Suffolk's case which was objected, that the general accusation of divers Treasons was not legal. That is true, because it was in Parliament, and in the nature of an accusation; and being in a Court of Justice, it hath been unjust to condemn a man before his Trial; and yet this Court, upon probability of a fault, doth oft-times restrain a man before conviction. But it hath been objected in this case, They have been a long time imprisoned, and no proceedings against them. It is well known, that there have been some proceedings against them, and they declined them; and also more than three months is requisite for the preparation of such proceedings, and the King intends to proceed against them in convenient time. And some that were offendors in the same kind, are already delivered, to wit, Mr. Coryton, and Sir Peter Hayman. Therefore if any injury be done to the Prisoners, they themselves are the cause of it, for not submitting themselves to the King. And for the instance which Mr. Littleton used of the Judges in 11 R. 2. although they suffered for their opinions given to the King, I desire, that the time when their opinion was delivered, may be considered, to wit, in the time of R. 2. and the time when they suffered, to wit, in the time of H. 4. And it was the saying of a noble Gentleman, the Lord Egerton, That Bealknap suffered rather by the potency of his enemies, than the greatness of his offence: And yet it is to be confessed, that they might have given better counsel; but there was no time to dispute of the justness of their counsel, when the sword was in the hands of the Conquerour.
It hath been relied upon the resolution of all the Justices of England in 34 Eliz. which resolution is now registred in the upper House of Parliament, at the request of the Commons, in Tertio Caroli Regis; but I leave it to you, as that resolution shall sway your Judgments. The said resolution is, That the cause ought to be certified in the generality or specialty; and here the general cause is certified at least, if the special be not so; upon the whole matter, the bailment of these prisoners is left to your discretion; and I have shewed to you the discretion of your predecessors. And if any danger appear to you in their bailment, I am confident that ye will not bail them, if any danger may ensue; but first ye are to consult with the King, and he will shew you where the danger rests. Therefore upon the whole matter I pray, that they be remanded.
When the Court was ready to have delivered their opinions in the Grand Habeas corpus for Mr. Selden and others, the Prisoners were not brought to the Bar, according to the Rule of the Court; Therefore proclamation was made, for the keepers of the several prisons, to bring in their Prisoners; but none of them appeared but the Marshal of the King's Bench, who said, that Mr. Stroud that was in his custody, was removed yesterday, and put in the Tower of London by the King's own Warrant, and so it was done with the other Prisoners; each of them was removed out of his Prison, in which he was before. But this notwithstanding, it was prayed by the Counsel of the Prisoners, that the Court would deliver their opinion for the matter in Law. But the Court refused to do that, because it is to no purpose; for, the Prisoners being absent, they could not be bailed, delivered, or remanded.
Note, the last day of the Term, a Letter came to the Court from the King Himself, the effect whereof was, to inform the Court of the reasons wherefore the Prisoners were not suffered to come at the day appointed, for the resolution of the Judges.
Trin. 5 Car. B. R.
The Case of the Grand Habeas corpus for Mr. Selden and others, was now moved by Mason to have the resolution of the Judges; and the Court with one voice said, That they are now content that they shall be bailed; but that they ought to find Sureties also for the good behaviour. And Jones Justice said, that so it was done in the Case which had been often remembred to another purpose, to wit, Russel's Case in 9 E. 3. To which Mr. Selden answered, (with whom all the other Prisoners agreed in opinion) That they have the Sureties ready for the Bail, but not for the good behaviour; and desire that Bail might first be accepted, and that they be not urged to the other.
An Information exhibited in the King's Bench against Sir John Eliot and others.
Sir Robert Heath, the Kings Attorney-General, exhibited Information in this Court against Sir John Eliot Knight, Denzil Hollis and Benjamin Valentine Esquires: the effect of which was, That the King that now is, for weighty causes, such a day and year, did summon a Parliament, and to that purpose sent his Writ to the Sheriff of Cornwal to chuse Two Knights, by vertue whereof Sir John Eliot was chosen, and returned Knight for Cornwall. And that in the same manner, the other Defendants were elect Burgesses of other places for the same Parliament. And shewed further, That Sir John Finch was chosen for one of the Citizens of Canterbury, and was Speaker of the House of Commons. And that the said Eliot publickly and malitiously in the House of Commons, to raise Sedition between the King, his Nobles, and People, uttered these words, That the Council and Judges had all conspired to trample under foot the Liberties of the Subjects. He further shewed, that the King had power to call, adjourn, and dissolve Parliaments: And that the King, for divers reasons, had a purpose to have the House of Commons adjourned, and gave direction to Sir John Finch, then the Speaker, to move an Adjournment; and if it should not be obeyed, that he should forthwith come from the House to the King. And that the Defendants, by confederacy aforehand, spake a long and continued Speech, which was recited verbatim, in which were divers malicious and seditious words, of dangerous consequence. And to the intent that they might not be prevented of uttering their premeditate speeches, their intention was, that the Speaker should not go out of the Chair till they had spoken them; the Defendants, Hollis and Valentine, lay violent hands upon the Speaker, to the great affrightment and disturbance of the House. And the Speaker being got out of the Chair, they, by violence, set him in the Chair again; so that there was a great tumult in the House. And after the said Speeches pronounced by Sir John Eliot, Hollis did recapitulate them. And to this information, the Defendants have put in a Plea to the Jurisdiction of the Court, because these offences are supposed to be done in Parliament, and ought not to be punished in this Court, or in any other, but in Parliament. And the Attorney-General moved the Court, to over-rule the Plea to the Jurisdiction. And that, he said, the Court might do, although he had not demurred upon the Plea. But the Court would not over-rule the Plea, but gave day to joyn in demurrer this Term. And on the first day of the next Term, the Record shall be read, and within a day after shall be argued at Barre. But Hyde, chief Justice, said to the Counsel of the Defendants, So far light we will give you. This is no new question, but all the Judges of England, and Barons of the Exchequer, before now, have oft been assembled on this occasion, and have, with great patience, heard the arguments on both sides; and it was resolved by them all with one voice, That an offence committed in Parliament, criminally or contemptuously, the Parliament being ended, rests punishable in another Court. Jones, It is true, that we all resolved, That an offence, committed in Parliament against the Crown, is punishable after the Parliament, in another Court; and what Court shall that be, but the Court of the King's Bench, in which the King, by intendment, sitteth; Whitlock, The question is now reduced to a narrow room, for all the Judges are agreed, That an offence committed in Parliament against the King or his Government, may be punished out of Parliament. So that the sole doubt which now remains, is, whether this Court can punish it. And Crook agreed, That so it had been resolved by all the Judges, because otherwise there would be a failer of Justice. And by him, If such an offence be punishable in another Court, what Court shall punish it but this Court, which is the highest Court in the Realm for criminal offences? and perhaps not only criminal actions committed in Parliament are punishable here, but words also.
Mr. Mason's Argument for Sir John Eliot.
Mason of Lincolns-Inne argued for Sir John Eliot, one of the Defendants. The Charges in the Information against him are three.
- 1. For Speehes.
- 2. For Contempts to the King in resisting the Adjournment.
- 3. For Conspiracy with the other Defendants, to detain Mr. Speaker in the Chair.
In the discussion of these matters, he argued much to the same intent which he had argued before, upon an Information brought in the Star-chamber against the same Defendants, and others, for the same offences; therefore his Argument is reported here very briefly.
1. For his Speeches, They contain matter of accusation against some great Peers of the Realm; and as to them, he said, That the King cannot take notice of them. The Parliament is a Council, and the Grand Council of the King, and Councils are secret and close, none other hath access to those Councils of Parliament, and they themselves ought not to impart them without the consent of the whole House. A Jury in a Leet, which is sworn to inquire of offences within the said Jurisdiction, are sworn to keep their own counsel; so the House of Commons enquire of all grievances within the Kingdom, and their Counsels are not to be revealed. And to this purpose was a Petition, 2 H. 4. numb. 10. That the King shall not give credit to any private reports of their proceedings, To which the King assents: therefore the King ought not to give credit to the Information of these offences in this case. 2. The words themselves contain several accusations of great men; and the liberty of accusation hath always been parliamentary, 50 E. 3. Parliament for sundry offences, 11 R. 2. the Archbishop of York, 18 H. 6. numb. 18. the Duke of Suffolk, 1 Mar. Dy. 93. the Duke of Norfolk, 36 H. 6. numb. 60. un Mickar General, 2 & 3 E. 6. c. 18. the Lord Seymer, 18 of King James, the Lord of St. Albans, Chancellor of England; and 21 of King James, Cranfield Lord Treasurer; and 1 Car. the Duke of Buckingham. 3. This is a priviledge of Parliament which is determinable in Parliament, and not elsewhere, 11 R. 2. numb. 7. the Parliament-roll. Petition exhibited in Parliament, and allowed by the King, That the Liberties and Priviledges of Parliament shall only be discussed there, and not in other Courts, nor by the Common, nor Civil-Law, (see this Case more at large in Selden's Notes upon Fortescue, f. 42.) 11 R. 2. Roll of the Process and Judgment. An appeal of Treason was exhibited against the Arch-bishop of Canterbury and others, and there the advice of the Sages of the one Law and the other being required; but because the Appeal concerned Persons which are Peers of the Realm, which are not tried else-where than in Parliament, and not in an inferiour Court, 28 H. 6. numb. 18. There being a question in Parliament concerning Precedency, between the Earl of Arundel and the Earl of Devon, the opinion of the Judges being demanded, they answered, That this question ought to be determined by the Parliament, and by no other, 31 H. 6. numb. 25, 26. During the Prorogation of the Parliament, Thorp that was the Speaker, was out in Execution at the Suit of the Duke of York; and upon the re-assembly of the Parliament, the Commons made Suit to the King and Lords to have their Speaker delivered. Upon this, the Lords demand the opinion of the Judges; who answer, That they ought not to determine the priviledges of the High Court of Parliament. 4. This accusation in Parliament is in legal Course of Justice, and therefore the Accuser shall never be impeached, 13 H. 7. and 11 Eliz. Dy. 285. Forging of false Deeds brought against a Peer of the Realm, Action de scandalis Magnatum, doth not lie. C. 4. 14. Cutler and Dixy's Case, where divers cases are likewise put to this purpose, 35 H. 6. 15. If uppon the view of the body the slayer cannot be found, the Coroner ought to enquire, who first found the dead body; and if the first finder accuse another of the murder, that is afterward acquit, he shall not have an Action upon the Case, for it was done in legal manner. So it is the duty of the Commons to enquire of the grievances of the Subjects, and the causes thereof, and doing it in a legal manner, 19 H. 6. 19. 8 H. 4. 6. in conspiracy it is a good Plea, that he was one of the Indictors. And 20 H. 6. 5. that he was a Grand Jury-man, and informed his Companions. And 21 E. 4. 6. 7. and H. 6. 14. that he was a Justice of Peace, and informed the Jury. 27 ass. p. 12. is to the same purpose. And if a Justice of Peace, the first finder, a Juror, or Indictor, shall not be punished in such cases; a fortiori, a Member of the House of Commons shall not, who, as 1 H. 7. 4. is a Judge. 27 ass. p. 44. may be objected, where two were indicted of Conspiracy, because they maintained one another; but the reason of the said Case was, because Maintenance is matter forbidden by the Law; but Parliamentary accusation, which is our matter, is not forbidden by any Law. C. 9. 56. there was conspiracy, in procuring others to be indicted. And it is true, for there it was not his duty to prefer such accusation. (2) The accusation was extrajudicial, and out of Court, but it was not so in our case. (3) Words spoken in Parliament, which is a superiour Court, cannot be questioned in this Court, which is inferiour. 3. E. 3. 19. and Stamford 153. will be objected, where the Bishop of Winchester was arraigned in this Court, because he departed the Parliament without license; there is but the opinion of Scroop, and the case was entred. P. 3 E. 3. 19. And it is to be observed, that the Plea of the Bishop there, was never over-ruled. From this I gather, that Scroop was not constant to his opinion, which was suddain, being in the same Term in which the Plea was entred; or if he were, yet the other Judges agree not with him; and also at last the Bishop was discharged by the Kings Writ. From this I gather, that the opinion of the Court was against the King, as in Pl. 20. in Fogassa's Case, where the opinion of the Court was against the King, the Party was discharged by Privy Seal. 1 and 2 Phil. & Mar. hath been objected, where an information in this Court was preferred against Mr. Ployden, and other Members of the House of Commons, for departing from the House without license. But in that case I observe these matters, (1) That this Information depended, during all the life of the Queen, and at last was sine die, by the death of the Queen. (2) In the said Case, no Plea was made to the Jurisdiction of the Court, as here it is. (3) Some of them submitted themselves to the Fine, because it was easie, for it was but 53 s. 4 d. But this cannot be urged as a President, because it never came in judgment, and no opinion of the Court was delivered therein. And it is no argument, that because at that time they would not plead to the jurisdiction, therefore we now cannot if we would. (4) These offences were not done in the Parliament-House, but else-where by their absence, of which the Countrey may take notice; but not of our matters being done in Parliament. And absence from Parliament, is an offence against the Kings Summons to Parliament. 20 R. 2. Parliament-Roll 12. Thomas Hacksey was indicted of High Treason in this Court, for preferring a Petition in Parliament; but 1 H. 4. numb. 90. he preferred a Petition to have this Judgment voided, and so it was, although that the King had pardoned him before. And 1 H. 4. numb. 104. all the Commons made Petition to the same purpose, because this tends to the destruction of their Priviledges. And this was likewise granted, 4 H. 8. c. 8. Strood's Case, That all condemnations imposed upon one, for preferring of any Bill, speaking, or reasoning in Parliament, are void. And this hath always been conceived to be a general Act, because the prayers, time, words, and persons are general, and the Answer to it is general; for a general Act is always answered with, Le Roy voit, and a particular Act with Soit droit fait al partyes. And 33 H. 6. 17, 18. A general Act is always inrolled, and so this is.
2dly. For the second matter, the contempt to the command of the Adjournment, Jac. 18. it was questioned in Parliament, whether the King can adjourn the Parliament, (although it be without doubt that the King can prorogue it.) And the Judges resolve, that the King may adjourn the House by Commission; and 27 Eliz. it was resolved accordingly. But it is to be observed, that none was then impeached for moving that question. (2) It is to be observed, that they resolve, that the Adjournment may be by Commission, but not resolved that it may be by a verbal Command, signified by another, and it derogates not from the Kings Prerogative, that he cannot so do, no more then in the Case of 26 H. 8. 8. that he cannot grant one Acre of Land by parol. The King himself may adjourn the House in Person, or under the great Seal, but not by verbal Message, for none is bound to give credit to such message; but when it is under the great Seal, it is Teste Meipso. And if there was no command, then there can be no contempt in the disobedience of that Command. (3) In this, no contempt appears by the Information; for the Information is, That the King had power to adjourn Parliaments. Then put case the Command be, that they should adjourn themselves; this is no pursuance of the power which he is supposed to have. The House may be adjourned two ways, to wit, by the King, or by the House it self, the last is their own voluntary act, which the King cannot compel, for, Voluntas non cogitur.
3ly. For the third matter, which is the Conspiracy: Although this be supposed to be out of the House, yet the Act is legal; for Members of the House may advise of matters out of the House; for the House it self is not so much for consultations, as for proposition of them. And 20 H. 6. 34. is, that Inquests which are sworn for the King, may enquire of matters elsewhere. (2) For the Conspiracy to lay violent hands upon the Speaker, to keep him in the Chair; The House hath priviledge to detain him in the Chair, and it was but lightly and softly, and other Speakers have been so served. (3) The King cannot prefer an Information for Trespass, for it is said, The King ought to be informed by a Jury, to wit, by Indictment, or Presentment. (4) This cannot be any contempt, because it appears not that the House was adjourned; and if so, then the Speaker ought to remain in the Chair; for without him, the House cannot be adjourned. But it may be objected, that the Information is, That all these matters were done malitiously and seditiously. But to this I answer, That this is always to be understood according to the subject matter, 15 E. 4. 4. and 18 H. 8. 5. A Wife that hath title to have Dower, agrees with an other to enter, (which hath right) that the against him may recover her Dower. This shall not be said Covin, because both the parties have right and title. (2) It will be objected, That it these matters shall not be punishable here, they shall be unpunished altogether, because the Parliament is determined. To this I say, That they may be punished in the subsequent Parliament, and so there shall be no failer of Right. And many times matters in one Parliament, have been continued to another, as 4 E. 3. Numb. 16. the Lord Barkley's Case, 50 E. 3. Numb. 185. 21 R. 2. c. 16. 6 H. 6. Numb. 45, 46. 8 H. 4. Numb. 12. offences in the Forest ought to be punished in Eyre, and Eyres oftentimes were not held, but every third Year. C. 9. Epistle, and 36 E. 3. c. 10. A Parliament may be every year. Error in this Court cannot be reversed but in Parliament. And yet it was never objected that therefore there shall be a failer of Right. 25 E. 3. c. 2. If a new Case of Treason happen, which is doubtful, it shall not be determined till the next Parliament. So in Westm. 2. c. 28. where a new Case happens, in which there is no Writ, stay shall be made till the next Parliament. And yet in these Cases, there is no failer of Right. And so the Judges have always done in all difficult Cases; they have referred determination of them to the next Parliament, as appears by 2 E. 3. 6, 7. 1 E. 3. 8. 33 H. 6. 18. 5 E. 2. Dower 145. the case of Dower of a Rent charge. And 1 Jac. the Judges refuse to deliver their opinions concerning the union of the two Kingdoms. The present Case is great, rare, and without president, therefore not determinable but in Parliament. And it is of dangerous consequence; for (1) by the same reason, all the Members of the House of Commons may be questioned. (2) The parties shall be disabled to make their defence, and the Clerk of Parliament is not bound to disclose those particulars. And by this means, the debates of a great Council shall be referred to a petty Jury. And the parties cannot make justification, for they cannot speak those words here, which were spoken in the Parliament, without flander. And the Defendants have not means to compel any to be witnesses for them; for the Members of the House ought not to discover the Counsel of the House: So that they are debarr'd of justification, evidence, and witness. Lastly, by this means, none will adventure to accuse any offender, in Parliament, but will rather submit himself to the common danger; for, for his pains he shall be imprisoned, and perhaps greatly fined: And if both these be unjust, yet the Party so vexed can have no recompence. Therefore, &c.
The Court. The question is not now, whether these matters be offences, and whether true or false. But, admitting them to be offences, the sole question is, Whether this Court may punish them; so that great part of your Argument is nothing to the present question.
Mr. Calthrop's Argument for Mr. Valentine.
At another day, being the next, Calthrope argued for Mr. Valentine, another of the Defendants.
- 1. In general, he said, for the nature of the crimes, that they are of four sorts.
- 1. In Matter.
- 2. In Words.
- 3. By Consent.
- 4. By Letters.
Two of them are laid to the charge of this Defendant, to wit, The crime of the Matter and of Consent. And of offences Bracton makes some publick, some private. The offences here are publick. And of them, some are capital, some not capital, as assault, conspiracy, and such like, which have not the punishment of life and death. Publick crimes capital are such as are against the Law of Nature, as Treason, Murder; I will agree, that if they be committed in Parliament, they may be questioned elsewhere out of Parliament. But in our case, the crimes are not capital, for they are assault and conspiracy, which in many cases may be justified, as appears by 22 H. 7. Keilw. 92. 2. ass. 3 H. 4. 10. 22 E. 4. 43. Therefore this Court shall not have jurisdiction of them, for they are not against the Law of Nations, of God, or Nature; and if these matters shall be examinable here, by consequence all the actions of Parliament-men may be drawn in question in this Court. But it seems by these reasons, that this Court shall not have jurisdiction, as this Case is:
Camden's Brit. 449.
- 1. Because these offences are justifiable, being but the bringing the Speaker to the Chair, which also perhaps was done by the Votes of the Commons; but if these matters shall be justified in this Court, no tryal can be, for upon issue of his own wrong, he cannot be tried, because acts done in the House of Commons are of Record, as it was resolved in the Parliament, 1 Jac. and 16 H. 7. 3. C. 9. 31. are, that such matters cannot be tried by the Countrey. And now they cannot be tried by Record, because, as 29 H. 8. Dy. 32. is, an inferiour Court cannot write to a superior. And no Certiorari lies out of the Chancery, to send this here by Mittimus, for there was never any president thereof; and the Book of the House of Commons, which is with their Clerk, ought not to be divulged. And C. Little. is, that if a man be indicted in this Court for Piracy committed upon the Sea, he may well plead to the jurisdiction of this Court, because this Court cannot try it.
- 2. It appears by the old Treatise, do modo tenendi Parliamentum, that the Judges are but Assistants in the Parliament; and if any Words or Acts are made there, they have no power to contradict or controul them. Then it is incongruous, that they, after the Parliament dissolved, shall have power to punish such Words or Acts, which at the time of the speaking or doing, they had not power to contradict. There are superiour, middle, and more inferiour Magistrates; and the superiour shall not be subject to the controul of the inferiour. It is a position, that in pares est nullum imperium, multo minus in eos, qui majus imperium habent. C. Littl. says, That the Parliament is the supreme Tribunal of the Kingdom, and they are Judges of the supreme Tribunal; therefore they ought not to be questioned by their Inferiours.
- 3. The offences objected do concern the Priviledges of Parliament, which Priviledges are determinable in Parliament, and not elsewhere, as appears by the Presidents which have been cites before.
- 4. The common Law hath assigned proper Courts for matters, in respect of the place and persons; 1. For the place, it appears by 11 E. 4. 3. and old Entries, 101. that in an Ejectione firmæ, it is a good plea, that the Land is antient demeasne, and this excludes all other Courts. So it is for Land in Durham, old Entries, 419. for it is questionable there and not out of the County. 2. For persons, H. 15 H. 7. rol. 93. old Entries, 47. If a Clerk of the Chancery be impleaded in this Court, he may plead his priviledge, and shall not answer. So it is of a Clerk of the Exchequer, old Entries, 473. then much more when offences are done in Parliament, which is exempt in ordinary jurisdiction, they shall not be drawn into question in this Court. And if a man be Indicted in this Court, he may plead Sanctuary, 22 H. 7. Keilw. 91. & 22. and shall be restored, 21 E. 3. 60. The Abbot of Bury's Case is to the same purpose.
- 5. For any thing that appears, the House of Commons had approved of these matters, therefore they ought not to be questioned in this Court. And if they be offences, and the said House hath not punished them, this will be a casting of imputation upon them.
- 6. It appears by the old Entries, 446, 447. that such an one ought to represent the Borough of St Jermans, from whence he was sent, therefore he is in nature of all Ambassador, and he shall not be questioned for any thing in the execution of his Office, if he do nothing against the Law of Nature or Nations, as it is the case of an Ambassador. In the time of Queen Elizabeth, the Bishop of Ross in Scotland, being Ambassador here, attempted divers matters against the State; and by the Opinion of all the Civilians of the said time, he may be questioned for those offences, because they are against the Law of Nations and Nature; and, in such matters, he shall not enjoy the priviledges of an Ambassador. But if he commit a civil offence, which is against the Municipal Law only, he cannot be questioned for it, as Bodin. de Republica, agrees the case. Upon the Statute of 28 H. 8. c. 15. for Trial of Pirates, 13 Jac. the case fell out to be thus. A Jew came Ambassador to the United Provinces, and in his journey he took some Spanish Ships, and after was driven upon this coast; And agreed upon the said Statute, that he cannot be tried as a Pirate here by Commission, but he may be questioned civiliter in the Admiralty: For, Legati suo Regi soli judicium faciunt. So Ambassadors of Parliament, soli Parliamento, to wit, in such things, which of themselves are justifiable.
- 7. There was never any president, that this Court had punished offences of this nature, committed in Parliament, where any plea was put in, as here it is to the jurisdiction of the Court; and where there is no president, non-usage is a good Expositor of the Law. Lord Littl. Section 180. Co Littl. f. 81. says, As Usage is a good interpreter of the Laws, so Non-usage, where there is no example, is a great intendment, that the Law will not bear it. 6 Eliz. Dy. 229. upon the Statute of 27 H. 8. of Inrolments, That bargain and sale of House in London ought not to be enrolled; the reason there given is, Because it is not used. 23 Eliz. Dy. 376. No error lies here of a Judgment given in the Five Ports, because such Writ was never seen; yet in the diversity of Courts it is said, That Error lies of a Judgment given in the Five Ports, 39 H. 6. 39. by Ashton, that a protection to go to Rome was never seen, therefore he disallowed it.
- 8. If this Court shall have Jurisdiction, the Court may give judgment according to Law, and yet contrary to Parliament Law, for the Parliament in divers cases hath a peculiar Law. Notwithstanding the Statute of 1 H. 5. c. 1. that every Burgess ought to be resident within the Burrough of which he is Burgess, yet the constant usage of Parliament is contrary thereunto; and if such matter shall be in question before ye, ye ought to adjudge according to the Statute, and not according to their usage. So the House of Lords hath a special Law also, as appears by 11 R. 2. the Roll of the Process and Judgement, (which hath been cited before to another purpose) where an appeal was not according to the one Law or th'other, yet it was good according to the course of Parliament.
- 9. Because this matter is brought in this Court by way of Information, where it ought to be by way of Indictment. And it appears by 41 Ass. p. 12. that it a Bill of Deceit be brought in this Court, where it ought to be by Writ, this matter may be pleaded to the Jurisdiction of the Court, because it is vi & armis, and contra pacem. It appears by all our Books, that Informations ought not to be grounded upon surmises, but upon matter of Record, 4 H. 7. 5. 6E. 6. Dy. 74. Information in the Exchequer, and 11 H. 8. Keilw. 101. are to this purpose. And if the matter be vi & armis, then it ought to be found by Enquest, 2 E 3. 1, 2. Appeal shall not be granted upon the Return of the Sheriff, but the King ought to be certified of it by Indictment, 1 H. 7. 6. and Stamf. f. 95. a. upon the Statute of 25 E. 3 c. 4. that none shall be imprisoned but upon Indictment or Presentment; and 28 E. 3. c. 3. 42 E. 3. c. 3. are to the same purpose. So here, this Information ought to have been grounded upon Indictment, or other matter of Record, and not upon bare intelligence given to the King.
- 10. The present case is great and difficult, and in such cases, the Judges have always outed themselves of Jurisdiction, as appears by Bracton, book 2. f. 1. Si aliquid novi non usitatum in Regno acciderit, 2 E. 3. 6, 7. and Dower 242.
Now I will remove some objections which may be made.
Where the King is Plaintiff, it is in his election to bring his Action in what Court he pleases. This is true in some sense, to wit, That the King is not restrained by the Statute of Magna Charta, Quod communia placita non sequantur Curiam nostram; for he may bring his Quare impedit in B. R. And if it concerns Durham, or other County Palatine, yet the King may have his Action here; for the said Courts are created by Patent, and the King may not be restrained by Parliament, or by his own Patent, to bring his Action where he pleaseth. But the King shall not have his Action where where he pleaseth against a prohibition of the Common Law, as 12 H. 7. Keilw. 6. the King shall not have a Formedon in Chancery. And C. 6. 20. Gregory's Case, If the King will bring an Information in an inferiour Court, the party map plead to the Jurisdiction. So where the Common Law makes a prohibition, the King hath not election of his Court.
The Information is contra formam Statuti, which Statute, as I conceive, is intended the Statute of 5 H. 4. c. 6. and 11 H. 6. c. 11. which gives power to this Court to punish an assault, made upon the servant of a Knight of Parliament. But our Case is not within those Statutes, nor the intent of them; for it is not intendible, that the Parliament should disadvantage themselves, in point of their priviledge. And this was a Trespass done within the House, by Parliament-men, amongst themselves. And Crompton's Jurisdiction of Courts, f. 8 saith, That the Parliament may punish trespasses done there.
Presidents have been cited of Parliament-men, imprisoned and punished for matters done in Parliament. To this I say, That there is Via juris, and Via facti; and Via facti is not always Via juris. C. 4. 93. Presidents are no good directions, unless they be judicial.
Otherwise there will be a failer of Justice, wrongs shall be unpunished. To this I answer, That a mischief is oft-times rather sufferable than an inconvenience, to draw in question the priviledges of Parliament. By the antient Common Law, as it appears by 21 E. 3. 23. & 21 ass. if an Infant bring an Appeal, the Suit shall be staied during his Infancy; because the party cannot have his Trial by Battail against the Infant; but the Law is now held otherwise in the said Case. And in some cases, criminal offences shall be dispunished, 29 H. 8. Dy. 40. Appeal of Murder lies not for murder done in several Counties.
This Court of B. R. is coram ipso Rege, the King himself, by intendment, is here in person. And, as it is said, C. 9. 118. it is Supremum Regni Tribunal, of ordinary Jurisdiction. But to this I say, That the Parliament is a transcendent Court, and of transcendent Jurisdiction, it appears by 28 ass. p. 52. that the style of other Courts is coram Rege, as well as this is, as coram Rege in Cancellaria, coram Rege in Camera; and though it be coram Rege, yet the Judges give the Judgment. And in the time of H. 3. in this Court, some Entries were coram Rege; others, Coram Hugone de Bigod.
The Priviledges of Parliament are not questioned, but the conspiracies and misdemeanors of some of them. But to this, I say, that the distinction is difficult and narrow in this case, where the offences objected are justifiable: and if they be offences, this reflects upon the House, which hath not punished them.
The cases of 3 E. 3. 19. and 1 7 2 Phil. & Mar. have been rejected. But for the last it is observable, That no plea was pleaded to the Jurisdiction, as it is in our case. And if a Parliament-man or other, which hath priviledge, he impleaded in foreign Court, and neglect his plea to the Jurisdiction, the Court may well proceed, 9 H. 7. 14. 36 H. 6. 34 H. 13 Jac. In this Court the Lord Norreys, that was a Peer of Parliament, was indicted in this Court for the murder of one Bigod, and pleaded his pardon. And there it was doubted, how the Court should proceed against him, (for he, by the Law, ought to have his Trial by his Peers) And it was resolved, that when he pleads his pardon, or confesseth his fault, thereby he gives Jurisdiction to the Court, and the Court may give Judgment against him. So that these Cases, where it was not pleaded to the Jurisdiction, can be no president in our case.
The Priviledge here is not claimed by Prescription or Charter, therefore it is not good. But I say, that notwithstanding this, it is good; for where the Common Law outs a Court of Jurisdiction, there needs no Charter or Prescription, 10 H. 6. 13. 8 H. 8. Keilw. 189. Br. n. c. 515. Where a Sanctuary of a Church is pleaded, there's no need to make Prescription, because every Church is a Sanctuary by the Common Law, &c.
Sir Robert Heath's Argument against Sir John Eliot.
Heath, the King's Attorney, the same day argued on the other side, but briefly. First, he answered the objections that had been made.
First, he said, That Informations might well be for matters of this nature, which are not capital; and that there are many presidents of such Informations. (But note, that he produced none of them.)
2ly. It hath been objected, That they are a Council, therefore they ought to speak freely. But such speeches which are here pronounced, prove them not Counsellors of State, but Bedlams; the addition of one word would have made it Treason, to wit, Proditorie. But it is the pleasure of the King to proceed in this manner, as now it is. And there is great difference between Bills and Libels, and between their proceedings, as Counsel and as mutinous.
3ly. That it would be of dangerous consequence; for by this means, none would adventure to complain of grievances. I answer, They may make their complaints in Parliamentary manner, but they may not move things, which tend to destruction of the King and his Government.
4ly. These matters may be punished in following Parliaments. But this is impossible, for following Parliaments cannot know with what mind these matters were done. Also the House of Commons is not a Court of Justice of it self. The Two Houses are but one Body, and they cannot proceed criminally to punish crimes, but only upon their Members by way of imprisonment; and also they are not a Court of Record. And they have forbid their Clerk to make Entry of their Speeches, but only of matters of course; for many times they speak upon the sudden, as occasion is offered. And there is no necessity, that the King should expect a new Parliament. The Lords may grant Commissions to determine matters, after the Parliament ended; but the House of Commons cannot do so. And also a new House of Commons consists of new men, which have no connusance of these offences 1 H. 4. The Bishop of Carlisle, for words spoken in the Parliament, that the King had not Right to the Crown, was arraigned in this Court of High Treason; and then he did not plead his privledge of Parliament, but said, That he was Episcopus unctus, &c.
5ly. 4 H. 8. Strode's Case hath been objected. But this is but a particular act, although it be in print; for Rastal intitles it by the name of Strode; so the Title, Body, and Proviso of the Act are particular.
6ly. That this is an inferiour Court to the Parliament, therefore, &c. To this I say, That, even sitting the Parliament, this Court of B. R. and other Courts, may judge of their priviledges, as of a Parliament-man put in execution, &c. and other cases. It is true, that the Judges have oft-times declined to give their Judgment upon the priviledges of Parliament, sitting the Court. But from this it follows not, that when the offence is committed there, and not punished, and the said Court dissolved, that therefore the said matter shall not be questioned in this Court.
7ly. By this means the priviledges of Parliament shall be in great danger, if this Court may judge of them. But I answer, That there is no danger at all; for this Court may judge of Acts of Parliament.
8ly. Perhaps these matters were done by the Motes of the House; or, if they he offences, it is an imputation to the House to say, That they had neglected to punish them; but this matter doth not appear. And if the truth were so, these matters might be given in evidence.
9ly. There is no president in the case, which is a great presumption of Law. But to this I answer, That there was never any president of such a fact, therefore there cannot be a president of such a Judgment. And yet in the time of Queen Elizabeth, it was resolved by Brown, and many other Justices, that offences done in Parliament may be punished out of Parliament, by imprisonment or otherwise. And the Case of 3 E. 3. 19. is taken for good Law by Stamf. and Fitzh. And 22 E. 3. and 1. Mar. accord directly with it. But it hath been objected, that there was no plea made to the Jurisdiction. But it is to be observed, that Ployden that was a learned Man, was one of the Defendants, and he pleaded not to the Jurisdiction, but pleaded License of depart. And the said Information depended during all the Reign of Queen Mary, during which time there were four Parliaments, and they never questioned this matter.
But it hath been further objected, That the said Case differs from our Case, because that there the offence was done out of the House, and this was done within the House. But in the said Case, if License to depart be pleaded, it ought to be tried in Parliament, as well as these offences here. Therefore, &c.
And the same day the Judges spake briefly to the Case, and agreed with one voice, that the Court, as this Case is, shall have Jurisdiction, although that these offences were committed in Parliament.