A CONFERENCE DESIRED BY THE LORDS AND HAD by a Committee of both Houses, CONCERNING THE RIGHTS AND PRIVILEGES of the Subjects.

Discoursed by

  • Sir DUDLEY DIGGES.
  • Sir EDWARD LITTLETON Knight, now Lord Keeper.
  • Master SELDEN.
  • Sir EDWARD COOKE.

With the Objections by Sir Robert Heath Knight then Attorney Generall, and the Answers.

3o. Apr. 4. Car. 1628.

LONDON, Printed by A. N. for Mathew Walbancke, and Richard Best, and are to be sold at their shops at Graies-Inne Gate. 1642.

THE INTRODVCTION.

MY LORDS,

I Shall I hope auspiciously begin this Conference this day, with an observa­tion out of the holy Story, 2. Chro. Cha. 34. in the dayes of good King Iosiah, when the Land was purged of Idolatrie, and the great men went about to repaire the house of God, while money was sought for, there was found a Booke of the Law which had beene neglected, 2 Kings Cha. 22. and afterwards being presented to the good King, procured the blessing which your Lordships may reade in the Scriptures.

My good Lords, I am confident your Lordships will as­cheerefully joyne with the Commons, in acknowledgement of Gods great blessing in our good King Iosiah, as the Knights, Citizens, and Burgesses, of the House of Commons, by mee their unworthiest servant, doe thankfully remember your most religiously and truly honourable invitation of them to the late Petition, for cleansing this Land from Popish abominati­ons, which I may truly call a necessary and a happy repairing of the house of God, and to goe on with the parallel, whilst we the Commons out of our good affections were seeking for money, we found I cannot say a booke of the Law, but many and fundamentall points thereof neglected and broken, which hath occasioned our desire of this conference, wherein I am first commanded to shew unto your Lordships in generall, that the Lawes of England are grounded on reason more ancient [Page 2] then bookes, consisting much in unwritten customes, yet so full of Justice and true equitie, that your most Honourable Pre­decessors, and Ancestours propugned them with a nolumus mutari, and so ancient, that from the Saxon dayes, notwithstan­ding the Injuries and ruines of time, they have continued in most parts the same, as may appeare in old remaining Monu­ments of the Lawes of Ethelbert, the first Christian King of Kent, Jna the King of the West Saxons, Offer of the Mertians, and of Alfred the great Monarch who united the Saxon Hep­tarchie, whose lawes are yet to bee seene published, as some thinke by Parliament, as he sayes to that end, Ʋt qui sub uno rege, sub una lege rege [...]entur. And though the Booke of Litch­field speaking of the times of the Danes, sayes that then Ius sopitum erat in regno, leges & consuetudines sopitae sunt, and pra­va voluntas, vis, & violentia magis regnabant quam judicia vel justitia; yet by the blessing of God a good King, Edward, commonly called St. Edward, did awaken those lawes, and as the old words are, Excitatas reparavit, reparatas decoravit, deco­ratas confirmavit; Which confirmavit, shewes that good King Edward did not give those Lawes which William the Conque­rour and all his Successours since that time have sworne unto.

And here my Lords, by many Cases frequent in our mo­derne Lawes strongly concurring with those of the ancient Saxon Kings, I might, if time were not more pretious, de­monstrate that our Lawes and Customes were the same.

I will only intreat your Lordships leave to tell you, that as we have now, even in those Saxon times they had their Court Barons, and Court Leets, and Sheriffs Courts, by which, as Tacitus sayes of the Germanes, their Ancestours Jura redde­bant per pagos & vicos; and I doe beleeve, as wee have now, they had their Parliaments, where new lawes were made cum consensu Praelatorum magnatum & totius communitatis; or as a­nother writes, cum consilio praelatorum, nobilium, & sapientium laicorum. I will adde nothing out of Glanvile that wrote in the time of H. 2. or Bracton that writ in the dayes of H. 3. only give me leave to cyte that of Fortescue, the learned Chancel­lour to H. 6. who writing of this Kingdome, sayes, Regnum [Page 3] istud moribus nationum, & Regum temporibus, eisdem quibus nunc Regitur legibus & consuetudinibus regebatur. But my good Lords, as the Poet said of Fame, I may say of our com­mon Law; ‘Ingreditur (que) solo caput inter nubila condit.’ Wherefore the cloudy part being mine, I will make hast to open way for your Lordships to heare more certaine Argu­ments, and such as goe on more sure grounds.

Be pleased then to know, that it is an undoubted and fun­damentall point of this so antient common law of England, that the Subject hath a true property in his goods and poffessi­ons, which doth preserve as sacred that Meum & tuum, that is the nurse of Industry, and mother of Courage, and without which there can be no Justice, of which Meum & tuum is the proper object. But the undoubted birth-right of Free Sub­jects, hath lately not a little beene invaded and preju­diced by pressures, the more grievous, because they have beene pursued by imprisonment contrary to the Franchises of this Land, and when according to the Lawes and Statutes of this Realme, redresse hath beene sought for in a legall way by demanding Habeas Corpus from the Judges, and a discharge or triall according to the law of the Land, successe hath failed, that now inforceth the Commons in this present Parliament assembled, to examine by Acts of Parliament, presidents and reasons, the truth of the English Subjects libertie, which I shall leave to learned Gentlemen, whose learned Arguments I hope will leave no place in your Lordships memories, for the errours and infirmities of your humblest servant, that doth thankfully acknowledge the great favour of your Honoura­ble and patient Attention.

Sir Edward Littletons Argument.
The Argument made by the Command of the house of Commons out of Acts of Parliament, and authorities of Law, ex­pounding the same, at the first Conference with the Lords concerning the libertie of the person of every Free-man.

MY LORDS,

VPon the occasions delivered by the Gentle­man, your Lordships have heard the Com­mons have taken into their serious conside­ration the matter of personall libertie, and after long debate thereof on divers dayes, as well by solemne Arguments, as single propositions of doubts and answers, to the end no scruple might remaine in any mans brest unsatis­fied, they have upon a full Search, and cleare understanding of all things pertinent to the question, unanimously declared; That no Free-man ought to bee committed or restrained in prison by the command of the King or Privie Counsell, or any other, unlesse some cause of the commitment, detainer, or restraint bee expressed, for which by law hee ought to bee committed, detained, or restrained. And they have sent mee with other of their members, to represent unto your Lord­ships the true grounds of their resolution, and have charged me particularly, leaving the reasons of law, and presidents, for others, to give your Lordships satisfaction, that this libertie is established and confirmed by the whole State, the King, the Lords spirituall and temporall, and Commons, by severall Acts of Parliament, the authoritie whereof is so great, that it can receive no answer save by interpretation or repeale by fu­ture Statutes. And those that I shall mind your Lordships of [Page 5] are so direct in point, that they can beare no other exposition at all, and sure I am they are still in force; The first of them is the grand Charter of the Liberties of England, first granted in the seventeenth yeare of King John, and renewed in the ninth yeare of Henry the third, and since confirmed in Parlia­ment above 30. times, the words there are Chap. 29. Nullus liber homo capiatur, vel imprisonetur, aut disseisietur de libero tento suo vel liberis consuetudinibus su is, aut utlageretur, aut exu­letur, aut aliquo modo destruatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum vel per legem terrae.

These words nullus liber homo, &c. are expresse enough, yet it is remarkable, that Mathew Paris, an Authour of speciall credit, doth observe, fol. 432. that the Charter of 9. H. 3. was the very same as that of 17. King John, in nullo dissimilis are his words, and that of King Iohn he setteth downe verbatim, Fo. 342. and there the words are directly, Nec eum in Carce­rem mittemus, and such a corruption as is now in the print might easily happen 'twixt 9. H. 3. and 28. of Ed. 1. when this Charter was first exemplified, but certainly there is sufficient left in that which is extant to decide this question, for the words are, that no Free-man shall be taken or imprisoned, but by the lawfull judgement of his Peeres, which is by a Iurie of Peeres, ordinary Iurors for others, who are their Peeres, or by the law of the Land; Which words, Law of the Land, must of necessity be understood in this notion, to be by due Proces of the Law, and not the law of the Land generally, or other­wise it would comprehend Bond-men (whom wee call Vil­laines) who are excluded by the word liber; For the gene­rall law of the Land doth allow their Lords to imprison them at their pleasure without cause, wherein they only differ from the Free-men in respect of their persons, who cannot be imprisoned without a cause. And that this is the true under­standing of these words per legem terrae, will more plainly appeareby divers other Statutes that I shall use, which doe expound the Law according. And though the words of this grand Charter be spoken in the third person, yet they are not to be understood of suites betwixt party and party, at least [Page 6] not of them alone, but even of the Kings suites against his Sub­jects, as will appeare by the occasion of getting of that Char­ter, which was by reason of the differences betwixt those Kings and their people, and therefore properly to bee applied unto their power over them, and not to ordinary questions betwixt Subject and Subject. Secondly, the words per legale judicium parium suorum, immediatly preceding the other of per legem terrae, are meant of trials at the Kings suit, and not at the pro­secution of a Subject. And therefore if a Peere of the Realme be arraigned, at the Suit of the King, upon an Indictement of murther, he shall be tried by his Peeres; but if he be appealed of murther by a Subject, his triall shall be by an ordinary Ju­ry of 12. Freeholders, as appeareth in 10. Ed. 4. 6. 33. H. 8. Brooke title trials 142. Stan. Cor. li. 3. ca. 1. fol. 152. and in 10. Ed. 4. 6. it is said, such is the meaning of Magna Char­ta, for the same reason; Sinor indite ferra trie per pares auter­ment si soit ap­peale, Br. tit Co­rone 153. nota bien. Therefore as per judicium parium su­orum, extends to the Kings Suit, so shall these words per le­gem terrae; And in 8. Ed. 2. rot. parliament. membrana 7. there is a Petition that a Writ under the privie Seale went to the Guardians of the great Seale, to cause lands to bee seized into the Kings hands, by force of which there went a Writ out of the Chancery to the Eschetor, to seize against the forme of the grand Charter, that the King nor his ministers shall out no man of his Freehold-without reasonable judgement, and the party was restored to his land, which sheweth the Statute did extend to the King. There was no invasion upon this perso­nall libertie, till the time of King Ed. 3. which was eftsoone resented by the Subject, for in 5. Ed. 3. ca. 9. it is ordained in these words; Sta. 5. Ed. 3. 9. It is enacted that no man from henceforth shal be attached by any occasion, nor fore-judged of life or limbe, nor his lands, tenements, goods nor chattels seized into the Kings hands, against the forme of the great Charter, and the law of the Land. 25. Ed. 3. cap. 4. Sta. 15. Ed. 3. 4. It is more full, and doth expound the words of the grand Charter, and is thus; Whereas it is conteined in the grand Charter of the franchises of England, that none shall be imprisoned, nor put out of his freehold, nor free custome, unlesse it be by the law of the Land, It is awar­ded, assented, and established, that from hence none shall bee [Page 7] taken by Petition or Suggestion, made to our Lord the King, or to his Counsell, unlesse it be by Inditement, or presentment of his good and lawfull people of the same neighbourhood, which such Deeds shall be done in due manner, or by Proces made by Writ originall at the Common law, nor that none be Out of his Franchises, nor of his Freehold, unlesse he be du­ly brought in answer, and fore-judged of the same by the course of the law, and if any thing be done against the same, it shall be redressed and holden for none.

Out of this Statute I observe, Lex terre ex­pound ꝑ pro­ces dée faict ꝑ bre original al cōmon ley. that what in Magna Charta, and the preamble of the Statute is tearmed by the law of the Land, is in the body of this Act expounded to bee by Proces made by Writ originall at the Common law, which is a plain interpretation of the words (Law of the Land) in the grand Charter. And I note that the Law was made upon the com­mitment of divers to the Tower, no man yet knoweth for what.

28. Ed. 3. cap. 3. Sta. 28. Ed. 3. ca. 3. It is more direct, this libertie being follow­ed with fresh Suit by the Subject, where the words are not many, but very full and significant; That no man of what state or condition he be, shall be put out of his lands nor tenements, nor taken, nor imprisoned, nor dis-inherited, nor put to death, without he be brought in answer by due Proces of law.

Here your Lordships see the usuall words of The law of the Land, are rendred by Due Proces of the law.

36. Ed. 3. Rot. parliament. numero 9. 36. E. 3. Rot. Parliam. nu. 9. Peticion del Commons. Amongst the Petiti­ons of the Commons, one of them being translated into Eng­lish out of French, is thus; First, that the great Charter, and the Charter of the Forrest, and other Statutes made in the time of his Progenitors, for the profit of him, and his Como­naltie, be well and firmly kept, and put in due execution, with­out putting disturbance, or making arrest contrary to them by speciall command, or in other manner.

Rns al petici­on. The Answer to the Petition, which makes an Act of Parlia­ment. Our Lord the King, by the Assent of the Prelates, Dukes, Earles, Barons, and the Commonaltie, hath ordained or established, that the said Charters and Statutes bee held and put in execution, according to the said Petition. It is obser­vable [Page 8] that the Statutes were to be put in execution according to the said Petition, which is, that no arrest should bee made contrary to the Statutes, by speciall command. This concludes the question, and is of as great force, as if it were printed, for the Parliament roll is the true warrant of an Act, and many are omitted out of the bookes, that are extant in the Roll.

36. Ed. 3. Rot. Parliamenti num. 22. 36. Ed 3. Rot. parl num. 22. Peticion d' Commons. explaineth it further, for there the Petition is, Item, as it is contained in the grand Char­ter and other Statutes, that no man be taken or imprisoned by speciall command without Inditement, or other due Proces to be made by the law, and oftentimes it hath beene, and yet is, many are hindred, taken, and imprisoned without Inditement, or other Proces made by the Law upon them, as well of things done out of the Forrest of the King, as for other things, that it would please our said Lord to command those to bee delivered, which are so taken by speciall command, against the forme of the Charter and Statutes as aforesaid.

Rns al Petici­on. The answer is,

St. 27. Ed 3. ca. 18. The King is pleased, that if any man find himselfe grieved, that he come and make his complaint, and right shall be done unto him. 37 Ed. 3. cap. 8. agreeth in substance with them, it saieth, Though it be contained in the great Charter, that no man be taken nor imprisoned, nor put out of his Freehold without Proces of the law; Neverthelesse divers people make false suggestions to the King himselfe, as well for malice as other­wise, whereof the King is often grieved, and divers of the Realme put in dammage against the forme of the same Char­ter; Wherefore it is ordained, that all they which make Sug­gestions, shall be sent with the same Suggestions to the Chan­cellour, Treasurer, and his grand Counsell, and that they there find suretie to pursue their Suggestions, and incurre the same paine that the other should have had, if he were attainted, in case that the Suggestion be found evill, and that then Proces of law be made against them without being taken or impriso­ned, against the forme of the said Charter, and other Statutes; here the law of the Land in the grand Charter is explained to be without Proces of law.

Sta. 42. Ed. 3. ca. 13. 42. Ed. 3. cap. 13. At the request of the Commons by their [Page 9] Petition put forth in this Parliament, to eschew mischiefe and dammage done to divers of his Commons by false accusers, which oftentimes have made their accusasions, more for re­venge and singular profit, then for the profit of the King, or of his people, which accused persons, Some have beene taken and caused to come before the Kings Counsell by Writ, and otherwise upon grievous paines against the Law, It is assen­ted and accorded for the good governance of the Commons, that no man be put to answer without presentment or matter of record, or by due Proces and Writ originall according to the old law of the Land, And if any thing from hence bee done to the contrary, it shall be void in the Law, and holden for Error.

Sta. 42. Ed. 3. Rot. Parliam. num. 12. But this is better in the Parliament roll, where the Petition and answer, which make the Act, are set downe at large. 42. Ed. 3. Rot. Parliamenti, numero 12.

Peticion des Cōmons. The Petition.

Item, Because that many of your Commons are hurt and destroyed by false accusers, who make their accusations more for their revenge and particular gaine, then for the profit of the King, or of his people. And those that are accused by them, some are taken, and others are made to come before the Kings Counsell by Writ, or other commandement of the King, upon grievous paines contrary to the Law. That it would please our Lord the King, and his good Counsell, for the just government of his people, to ordaine, that if hereaf­ter any accuser purpose any matter for the profit of the King, that the same matter be sent to the Iustices of the one bench or of the other, or the Assises, to be inquired and determined ac­cording to the Law; and if it concerne the Accuser or party, that he take his Suit at the common law, and that no man bee put to answer without presentment before Iustices or matter of Record, and by due Proces and originall Writ, according to the ancient law of the Land. And if any thing henceforward bee done to the contrary, that it bee void in law, and held for error.

Here by due Proces and originall Writ, according to the ancient Law of the Land, is meant the same thing, as per legem [Page 10] terrae, in Magna Charta, and the abuse was, they were put to answer to the commandement of the King.

Rns al petiti­on. The Kings Answer is thus.

Because that this Article is an Article of the grand Charter, the King willeth that this bee done, as the Petition doth de­mand. By this appeareth that per legem terrae, in Magna Char­ta, is meant by due Proces of the Law.

Obi. hors d' l' Sta. de Westm. 1. cap. 15. Thus your Lordships have heard act of Parliament in the point. But the Statute of Westminst, 1. cap. 15. is urged to dis­prove this opinion, where it is expresly said, Que ne sont repleviseable (que) sont com­mit per le com­mand le Roy. that a man is not repleviseable, who is committed by the command of the King, therefore the Command of the King, without any cause shew­ed, is sufficient to commit a man to prison. And because the strength of the Argument may appeare, and the Answer bee better understood, I will reade the words of the Statute, which are thus. Les parols d' Sta. And forasmuch as Sheriff, and others, which have ta­ken and kept in prison persons detected for Felonie, and often­times have let out by Replevin, such as were not repleviable, and have kept in prison such as were repleviable, because they would gaine of the one party, and grieve the other, And for­asmuch as before this time it was not certainly determined what persons were repleviable, and what not, but only those that were taken for the death of a man, or by the command­ment of the King, or of his Iustices, or for the Forrest, It is provided, and by the King commanded, that such prisoners as were before outlawed, and they which have abjured the Realme, provers, and such as be taken with the manner, and those which have broken the Kings prison, Theeves openly defamed and knowne, and such as be appealed by approvers, so long as the approvers are living, if they be not of good name, and such as be taken for burning of houses feloniously done, or for false money, or for counterfeiting the Kings Seale, or persons Excommunicate taken at the request of the Bishop, or for manifest offences, or for treason touching the King himselfe, shall be in no wise repleviable by the common Writ, or without Writ; But such as be indicted of Larceny by inquests taken before Sheriffs or Bayliffs by their office, or of [Page 11] light suspition, or of petit Larceny, that amounteth not above the value of twelve pence, if they were not guiltie of some other Larceny afore-time, or guilty of receipt of Felons, or of commandment, or of force, or of ayde of felony done, or guilty to some other trespasse, for which one ought not to lose either life or member, and a man appealed by an approver, after the death of the approver, if he be no common theefe or defamed, shall from henceforth be lett out by sufficient suretie, whereof the Sheriff will be answerable, and that without gi­ving ought of their goods; and if the Sheriffe, or any other, let any goe at large, by surety, that are not repleviable, if hee be Sheriffe, or Constable, or any other Bailiffe, or such as hath a Fee, which hath keeping of prisons, and thereof be Attainted, he shall lose his Office and Fee for ever. And if the under She­rife, Constable or Bailiffe, or such as hath Fee for keeping of Prisons, doe it contrary to the will of his Lord, or any other Bailiffe being not of Fee, they shall have three yeares impri­sonment, and make a Fine at the Kings pleasure; And if any man with-hold Prisoners repleviseable, after that they have offered sufficient Suretie, he shall pay a grievous amercement to the King, and if he take any reward for the deliverance of such, he shall pay double to the Prisoner, and also shall be in the great mercy of the King.

The Answer.

It must be acknowledged, that a man taken by the com­mandement of the King is not repleviseable, for so are the ex­presse words of this Statute, but this maketh nothing against the Declaration of the Commons; For they say not the She­rife may replevy such a one by sureties, silicet manucaptores, but he is bayleable by the Kings Courts of Justice; for the better apprehending whereof, it is to be knowne, that there is a dif­ference betweene repleviseable, Diversitie en­ter Bayleable & replevisea­ble. which is alwayes by the She­rife upon pledges or Sureties given, and baileable, which is by a Court of Record, where the Prisoner is delivered to bayle, and they are his Gaolers, and may imprison him, and shall suffer for him body for body, as appeareth 33. & 36. Ed 3. titulo mainprise 12. &. 13. where the difference betwixt Bayle and [Page 12] Mainprise is expresly, take, and if the words of the Statute themselves be observed, it will appeare plainly that it extends to the Sherife and other inferiour Officers, and doth not bind the hands of the Judges. The preamble which is the key that openeth the Entrance into the meaning of the makers of the Law is; Forasmuch as Sherifes and others have taken and kept in prison persons detected of felonie. Out of these words I observe that it nominateth Sherifes, and then if the Judges should be included, they must be comprehended under that generall word, other, which doth not extend to those of an higher ranke, but to inferiours, for the best by all courses is first to be named. And therefore if a man bring a Writ of Cu­stomes and services, and name rents and other things, the gene­rall shall not include homage, which is a personall service; and of an higher nature, but it shall extend to ordinary annuall service, 31. E. 1. Droit. 67. So the Statute of 13. El. cap. 10. which beginneth with Colledges, Deanes and Chapters, Par­sons, Vicars, and concludes with these words, and others ha­ving spirituall promotions, shall not comprehend Bishops that are of an higher degree, as appeareth in the Archbishop of Canterburies Case, 2. Reports, fol. 46. B. And thus much is ex­plained in the very Statute towards the end; when it doth enumerate those were meant by the word, other, namely un­der Sherifes, Constables, Bailiffs, &c. Againe, the words are Sherifes, and others which have taken and kept in prison; Now every man knoweth, Judges doe neither arrest, nor keep men in prison, that is the office of Sherifes and other in­feriour Ministers. Therefore this Statute meant such only and not Judges. The words are further, that they let out by re­plevin such as are not repleviable, that is the proper language for a Sherife; Nay, more expresse afterward in the body of the Statute, that such as are there mentioned, shall be in no wise repleviseable by the common Writ, which is de Homine replegiando, and is directed to the Sherife, nor without Writ which is by the Sherife Ex officio. But that which receives no answer is this, that the command of the Justices, who derive their authoritie from the Crowne is the equalled and to this purpose with the command of the King. And therefore by all [Page 13] reasonable construction, it must needs relate to Officers that are subordinate to both, as Sherifes, under-Sherifes, Bailiffes, Constables, and the like. And it were a harsh exposition to say that the Justices might not discharge their owne com­mand, and yet that reason would conclude as much; And that this was meant of the Sherife and other ministers of Justice by the recitall 27. Ed. 1. cap. 3. and likewise by Fleta a manu­script so called, because the Author lay in the Fleet when he made the booke, for he lib. 2. cap. 52. in his Chapter of turnes, and the viewes of the hundred Court in the Countrey setteth downe the Articles of the Charges that are there to be inqui­red of, amongst which, one of them is De Replegibilibus in­juste detentis & irreplegiabilibus dimissis; which cannot be meant of not bayling by the Justices, for what hath the inferi­our Courts in the Countrey to doe with the acts of the Justi­ces? and to make that more plaine, he setteth downe in that chapter, that concerneth Sherifes only, the very Statute of Westminster 1. which he translates verbatim out of the French into the Latine, save that he renders, taken by the command of of the Justices, thus, per judicium Justiciariorum, and his Pre­face to the Statute plainly sheweth, that he understood it of replevine by Sherifs, for he saith, Qui debent per plegios hoc di­mitti, qui non declarat hoc Statutum, and per plegios is before the Sherife. But for direct authority, 22. H. 6. 46. ꝑ Newton Chiefe Iustice. it is the opinion of Newton, Chiefe Justice, 22. H. 6 46. where his words are these; It cannot be intended that the Sherife did suffer him to goe at large by Mainprise, for where one is taken by the Writ of the King, or the Commandement of the King, he is irreplevisea­ble, but in such case his friends may come to the Justices from him if he be arrested, and purchase a Supersedeas; This Judge concludes that the Sherife cannot deliver him that is taken by the command of the King, for that he is irrepleviseable, which is the very word of the Satute: but, saith he, his friends may come to the Justices and purchase a Supersedeas; So he de­clares the very question, that the Sherife had no power, but the Justices had power to deliver him that is committed by the Kings command; and both the ancient and moderne pra­ctise manifest as much, for he that is taken for the death of a [Page 14] man, or for the Forrest, is not repleviable by the Sherife, yet they are ordinarily bayled by the Justice, and were by the Kings Writs directed to the Sherifs in the times of Ed. 1. and 2. as appeares in the close rolls, which could not be done if they were not baylable. And it is every dayes experience, that the Justices of the Kings Bench doe bayle for Murther, and for offences done in the Forrest, which they could not doe, if they were irrepleviseable, if Westminst. 1. were meant of the Justices, aswell as of the Sherifs. For authorities that have beene offered to prove the contrary, are in number three, the first is 21. Ed. 3. Rot. 2. which also is in the Booke of Pleas in Parliament at the Tower, upon an action there brought, fol. 44. It is not an Act of Parliament, but a resolution in Par­liament upon an action there brought, which was usuall in those times. And the case is, that Stephen Rabaz, the Sherife of the Counties of Leicester and Warwicke, was questioned, for that he had let at large by Surety, amongst others, one William, the sonne of Walter le Pesons, against the will and command of the King, whereas the King had commanded him by Let­ters under the Privie Seale, that he should doe no favour to any man that was committed by the Earle of Warwicke, as that man was, whereunto the Sherife answered, that he did it at the request of some of the Kings houshold upon their Let­ters, and because the Sherife did acknowledge the receipt of the Kings Letters, thereupon he was committed to prison ac­cording to the forme of the Statute. To this I answer, the Sherife was justly punished, for that he is expresly bound by the Statute of Westminst. 1. which was agreed from the be­ginning, but this is no proofe, that the Iudges had no power to bayle this man.

The next Authority is 33. H. 6. in the Court of Common Pleas, fo. 28. b. 29. where Sobert Poyning Esquire, was brought to the Barre upon a Capias, and was returned, that he was committed Per Duos de Consilio, (which is strongest a­gainst what I maintaine) pro diversis causis regem tangent. and he made an Attorney there in an action, whence it's infer­red, that the returne was good, and the party could not be de­livered. To this the answer is plaine.

First, no opinion is delivered in that booke, one way or o­ther, upon the returne, neither is there any testimony whether he were delivered, or bayled, or not. 2. It appeares expresly, that he was brought thither, to be charged in an action of debt, at another mans suit, and no desire of his owne to bee delivered, or bayled, and then if hee were reman­ded, it is in no way materiall to the question in hand. But that which is most relied upon, is the opinion of Stan. in his Booke of Pleas of the Crowne lib. 2. cap. 18. fol. 72. 73. in his Chapter of Mainprise, where hee reciteth the Statute of Westminst. 1. cap. 15. and then saith thus; Rns al Obi. hors de Stan. pl. Cor' 72. By this Statute it appeares, that in foure cases at the Common law a man was not repleaviable, to wit, those that were taken for the death of a man, by the command of the King, or his Justices, or for the Forrest, thus farre he is most right, then hee goeth on, and saith, as to the command of the King, that is understood by the command of his owne mouth, or his counsell, which is incor­porated unto him, and speake with his mouth, or otherwise e­very Writ or Capias to take a man, which is the Kings com­mand, would be as much; and as to the command of the Ju­ces, that is meant their absolute commandment, for if it bee by their ordinary commandment, he is repleviable by the Sherife, if it be not in some of the cases prohibited by the Statute.

The answer that I give unto this is, that Stanford had said nothing whether a man may be committed without cause by the Kings command, or whether the Judges ought not to bayle him in such Case, only that such a one is not repleviseable, which is agreed, for that belongs to the Sherife. And because no man should thinke he meant any such thing, hee concludes the whole Sentence touching the Command of the King and the Justices, that one committed by the ordinary command of the Justice, is repleviseable by the Sherife, or at least it ap­peares not that he meant, that a man committed by the King, or by the Privie Counsell without cause, should not be bayleable by the Justices, and he hath given no opinion in this case; what he would have said, if he had beene asked the question cannot be knowne, neither doth it appeare, that by any thing that hee hath said, hee meant any such thing as would bee inferred [Page 16] out of him. And now my Lords I have performed the Com­mands of the Commons, and as I conceive shall cleare the De­claration of personall libertie, an antient and undoubted truth, fortified with seven Acts of Parliament, and not opposed by any Statute or authoritie of law whatsoever.

The objections of the Kings Counsell, with like answers made thereunto, at the two other Conferences touching the same matter.

IT was agreed by the Attorney generall, that the 7. Statutes urged by the Cōmons were in force, and that magna Charta did extend most properly to the King, but he said, 1. Object. 1. That some of them are in generall words, and therefore conclude nothing, but are to be expounded by the Presidents, and others that bee more particular, are applied to the Suggestions of Subjects, and not to the Kings command simply of it selfe; Le Rns. Hereunto it was answered, that the Statutes were as direct as could bee, which appeareth by the reading of them, and that though some of them speak of Suggestions of the Subjects, yet others do not, and they that doe are as effectuall, for that they are in e­quall reason, a commitment by the command of the King, being of as great force, when it moveth from a Suggestion from a Subject, as when the King taketh notice of it himselfe, the ra­ther for that Kings seldome intermeddle with matters of this nature, but by information from some of their people.

2. Object. 2. Master Attorney objected that per legem terrae in Magna Charta (which is the foundation of this question) cannot be understood for Proces of the Law and originall Writs, for that in criminall proceedings no originall Writ is used at all, But every Constable either for Felonie or breach of the Peace, or to prevent the breach of the Peace, may commit without Proces or originall Writ, and it were hard the King should not have the power of a Constable. And the Sta­tute cyted by the Commons, make Proces of the Law, and Writ originall, to be all one.

Le Rns. The answer of the Commons to this Objection was, that they doe not intend originall Writs only by the Law [Page 17] of the Land, but all other legall Proces, which comprehends the whole proceedings of Law upon cause, other then triall by Jury, Judicium parium, unto which it is opposed, thus much is imported ex vi termini out of the word Proces, and by the true acceptation thereof in the Statutes which have beene used by the Commons to maintaine their Declaration, and most especially the Statutes of 25. Ed. 3. cap. 4. where it appeareth that a man ought to be brought in to answer by the course of the Law, having former mention of Proces made by originall Writ. And in 28. Ed. 3. cap. 3. by the course of the Law is rendred by the due Proces of the Law. And 36. Ed. 3. Rot. Parliamenti numero 20. The Petition of the Commons saith, that no man ought to bee imprisoned by speciall command without Inditement or other due Proces to bee made by the Law. 37. Ed. 3. cap. 18. calleth the same thing Proces of the Law, and 42. Ed. 3. cap. 3. stileth it by due Proces and Writ originall, where the conjunctive must be taken for a dis-junctive, which charge is ordinary to an ex­position of Statutes and Deeds to avoid inconveniences, to make it stand with the rest, and with reason, as it may be col­lected by the law of the Land in Magna Charta, by the course of the Law in 25. Ed. 3. by the due Proces of Law in 28. Ed. 3. other due Proces to bee made by the Law in 36. Ed. 3. Proces of the Law in 37. Ed. 3. and by due Proces and Writ originall in 42. Ed. 3. are one and the same thing, the later of these Statutes referring alwayes to the former, and that all of them import any due and regular proceedings of law upon a cause other then the triall by Jurie. And this appeareth 10. Rep. 74. in the Case of the Marshalsea, and 11. Rep. 99. James Baggs Case, where it is understood of giving Jurisdiction by Charter or prescription which is the ground of a proceeding by course of law. And in Seldens Notes on Fortescue, fol. 29. where it is expounded for Law wa­ger, which is likewise a tryall by law by the oath of the par­ties, differing from that by Jurie. And it doth truly compre­hend these and all other regular proceedings in law upon cause, which gives authoritie to the Constable to arrest up­on cause. And if this be not the true exposition of these words [Page 18] per legem terrae, the Kings Counsell were desired to declare their meaning, which they never offered to doe, and yet cer­tainly these words were not put into the Statute without some intention of consequence. 3. Objection. And thereupon Mr. Serjant Ashley offered an interpretation of them thus, namely; that there were divers Lawes of this Realme, as the Common law, the law of the Chancery, the Ecclesiasticall law, the law of the Admiral­tie, or Marine law, the law of Merchants, the Marshall law, and the law of State, and that these words per legem terrae doe extend to all these Lawes. Rns a ceo. To this it was answered, that wee read of no law of State, and that none of these Lawes can bee meant there save the Common law, which is the principall and generall Law, and is alwayes understood by the way of Excellencie, when mention is of the law of the Land gene­rally, and that though each of the other Lawes, which are ad­mitted into this Kingdome by Custome or Act of Parliament, may justly be called a law of the Land, yet none of them can have the preheminence to be stiled the Law of the Land. And no Statute, Law booke, or other authority, printed or unprin­ted, could be shewen, to prove that the Law of the Land, be­ing generally mentioned, was ever intended of any other then the Common Law, and yet even by these other Lawes a man may not be committed without a cause expressed. But it stand­eth with the rule of other legall expositions, that per legem terrae must be meant the Common Law, which is the gene­rall and universall Law, by which men hold their Inheritan­ces, and therefore if a man speake of Escuage generally, it is understood as Littleton observeth, Sect. 99. of the incertaine Escuage, which is a Knights service tenure, for the defence of the Realme, by the body of the tenant in time of warres, and not of a certaine Escuage which giveth only a contribution in money, and no personall service. And if a Statute speak of the Kings Courts of Record, it is meant only of the 4. at West­minster by way of excellencie, 6. Rep. 20. Gregories Case; So the Canonists by the Excommunication simply spoken, doe in­tend the greater excommunication. And the Emperour in his Institutions saith, that the Civill Law being spoken gene­rally is meant of the Civill law of Rome, though the Law of [Page 19] every City is a Civill Law; as when a man names the Poet, the Graecians understand Homer, the Latinists Ʋirgil. 2. Admit per legem terrae extend to all the Lawes of the Land, yet a man must not be committed by any of them, but by the due pro­ceedings that are executed by those Lawes, and upon a cause declared. 4. Object. Againe, it was urged that the King was not bound to expresse a cause of imprisonment, because there may be in it matter of State, not fit to be revealed for a time, lest the confederates thereupon make meanes to escape the hands of Justice. And therfore the Statute cannot be intended to restrain all commitments unlesse a cause be expressed, for that it would be very inconvenient and dangerous to the State, to publish the Cause at the very first. Le Rns. Hereunto it was replied by the Cōmons, that all danger and inconvenience may be avoided by declaring a generall Cause, as for Treason, suspition of Treason, misprision of Treason or felonie, without specifying the particular, which can give no greater light to a confederate, then will bee conje­ctured by the very apprehension upon the imprisonment, if nothing at all were expressed. 5. Object. It was further alledged that there was a kind of contradiction in the position of the House of Commons, when they say a party committed without a cause shewed, ought to be delivered or bayled, Bayling being a kind of imprisonment, deliverie a totall freeing. Le Rns. To this it hath beene answered, that it hath alwayes beene the discreti­on of the Judges, to give so much respect to a commitment by the Command of the King, or the Privie Councell, which are ever intended to be don in just and weighty causes, that they will not presently let them free, but bayle them to answer what shall be objected against them on his Majesties behalfe; but if any other inferiour Officer doe commit a man without shewing cause, they doe instantly deliver him, as having no cause to expect their leasure. So the delivery is applied to an imprisonment by the command of some meane minister of Ju­stice, Bayling when it is done by the command of the King or his Counsell.

6. Object. It was urged by Mr. Attorney, that Bayling is a grace and favour of a Court of Justice, and that they may refuse to doe it. Le Rns. This was agreed to be true in divers cases, as where the [Page 20] cause appears to be for felony or other crimes expressed, for that there is another way to discharge them in convenient time by their triall, and yet in these cases the constant practise hath beene anciently and modernly to bayle men, but where no cause of the imprisonment is returned, but the Command of the King, there is no way to deliver such persons by triall or otherwise, but that of the Habeas Corpus. And if they should be then re­manded, they might be perpetually imprisoned without any remedy at all, and consequently a man that had committed no offence might be in worse case then a great offender, for the later should have an ordinary tryall to discharge him, the o­ther should never be delivered. 7. Objection. It was further said, that though the Statute of Westminster 1. cap. 15. be a Statute which by way of provision did extend only to the Sherife, yet the recitall of that touching the foure causes wherein a man was not reple­viseable at the common law, namely those that were commit­ted for the death of a man, by the command of the King, or of his Justices, or for the Forrest, did declare that the Justices could not bayle such a one, and that repleviseable and bayleable were Synomina all one, and that Stanford a Judge of great autho­ritie doth expound it accordingly, Stan. pl. Cor. 72. and that neither the Statute nor he say repleviseable by the Sherife, but generally without restraint; And that if the chiefe Justice committed a man, hee is not to be inlarged by any other Court, as appeareth in the Register. Le Rns. To this it was answered, That the recitall of the bo­dy of the Statute, relateth only to the Sherife only, as appear­eth by the very words. 2. That Repleviseable is to the Sherife, for that the word imports no more, but a man committed by the chiefe Justice, is bayleable by the Court of Kings Bench. 3. That Stanford meaneth all of the Sherife, or at least hee hath not sufficiently expressed that he intended the Justices. 4. It was denied that Repleviseable and bayleable was the same, for they differ in respect of the place where they are used, bayle being in the Kings Court of record, Repleviseable before the Sherife, and they are of severall natures, repleviable being a letting at large upon suretie, bayling being when one traditur in Balliv. the bayle are his Iaylors and may imprison him, and shall suffer body for body, which is not of replevying by Sure­ties, [Page 21] and differeth from Mainprise in this, Diversitie en­ter bayle & mainprise. Mainprise is an un­dertaking in a some certaine, Bayling to answer the condem­nation in Civill causes, and for criminall, body for body. And the reasons and authorities in the first Conference were then renewed, and no exceptions taken to any save that in 22. H. 6. it doth not appeare that the command of the King was by his mouth, which must be intended, or by his Counsell, which is all one, as is observed by Stanford, for the words are that a man is not repleviseable by the Sherife, who is committed by the Writ or the commandment of the King, 21. Ed. 1. Rot. 2. Dors. was Cyted by the Kings Counsell, that it was answe­red, that it concerned the Sherife of Leicester shire only, and not the power of the Iudges, 33. H. 6. the Kings Attorney con­fessed was nothing to the purpose, and yet that Booke hath beene usually cited by those that maintaine the contrary to the Declaration of the Commons. And therefore such sudden opi­nions as have been given thereupon are not to be regarded the foundation failing. And where it was said that the French of 36. Ed. 3. Rot. parliamenti numero 9. which can receive no an­swer did not warrant what was inferred thence, but that these words Sauns disturbance mettre, ou arrest fair, & le contre per special mandement ou autre mannere must bee understood, that the Statute should be put in execution without putting distur­bance, or making arrest to the contrary by speciall command or in other manner, The Commons did utterly denie the in­terpretation given by the Kings Counsell, and to justifie their owne, did appeale to all men that understood the French, and upon the 7. Statutes did conclude, that their Declaration remai­ned an undoubted truth, not controlled by any thing said to the contrary.

Sir Edward Littletons Presidents. The true Copies of the Records not printed, which were used on either side of that part of the Debate.

Inter Record. Domini Regis Caroli in Thesaurario Recept. Scaca­rij sui sub custodia Thesaurar. & Camerar ibidem rema­nent. viz. pl. Coram ipso Domino Rege, & consilio suo, ad Par­liamentum suum post Pasch. apud London in Maner' Arch-Episcopi Ebor', Anno Regni Domini Regis Ed. 3. 21. inter alia sic continetur ut sequitur, Rot. 2. indorso.

STephanus Rabaz Vicecomes Leic. & Warw. co­ram ipso Domino Rege & ejus Concilio arena­tus & ad Rudom positus de hac quod cum I. B. E. H. & W. H. nuper balliv' ipsius Vicecomitis per Dom. Regem fuissent assign' ad Gaolas Do­mini Regis deliberand. eidem vic' quendam W. P. per quendam appellatorem ante adventum eorum Justiciariorum ibidem appellat. & capt. vivente ipso appellatore us (que) diem delibe­rationis coram eis fact. demissat. per pleviam contra formam Statuti, &c. Et etiam quendam R. de C. qui de morte hominis ju­dicatus fuit, & per eundem Vicecomit' captus, Jdem Vic' per pleviam demisit contra formam Stat. & etiam idem R. sine fer­ris coram eisdem Iusticiar' ad deliberationem praed' produxit contra consuetudinem Regni, & similiter quendam Walterum fili­um Walteri le Persone qui per praeceptum Comitis Warwici cap­tus fuit dimisit per pleviam contra vocem & preceptū Domini Re­gis Cum idem Dominus Rex sub literas suas sub privato Si­gillo suo eidem Vicecomit precipiet quod nulli per preceptum praed. Com. Warwici capt. aliquam gratiam vel favorem fac. &c. Et super hoc praefat. I. B. qui presens est, & qui fuit primus Justi­ciar. [Page 23] pred. premiss. recordatur & pred. vicecomes dicit quoad. pred. W. P. ipse nunquam a tempore captionis ipsius W. per pred appella­torem demiss. fuit per pleviam aliquam ante advent. pred. Justiciar. Imo dicit quod per dimid. Anni ante Adventum eorum Justi­ciar. captus fuit. Et quoad pred. R. bene cognoscit quod ipse di­misit eum per pleviam, & hoc bene facere poterat ratione ac au­thoritate officij, sui, eo quod captus fuit pro quadam simplici trans­gressione, & non pro aliqua felonia, pro qua replegiare non potuit. Et quoad 3. vizt. W. filium Persone bene cognoscit quod ipse captus fuit per preceptum pred. Com. Warwici & quod dimisit eum per ple­viam. Sed dicit quod hoc fecit ad rogatum quorundam de Hospitio & Curia Dom. Regis qui eum similiter inde rogaverint per lite­ras suas. Et super hoc idem vicecom quesivit per Dom. Regem quis eum rogavit, & literas suas ei direxit, & ubi literae illae sunt, di­cit quod Walterus de Langton eum per literas suas inde rogavit, sed dicit quod literae illae sunt in partibus suis Leic. Et super hoc idem Vicecomes profert bre. Dom. Regis de privato sigillo eidem vic. direct. quod testatnr quod Dominus Rex eidem Vic. precipit, quod omnes illos trans. contra pacem, & de quibus Comes Warwici ei Scire fecit, caperet, & Salvo Custodiret abs (que) aliqua gracia eis facienda. Et quia pred. Justiciar' expresse recordata, quod ipse & socij sui per bonum & legalem inquisitionem de militibus & aliis communibus coram eis fact. invenerunt quod pred. W. de Petling dimissus fuit per pleviam per magnū tempus ante adventum eorun­dem Justic. us (que) adventū eorundem & per vic. pred. Et etiam quia pred. vic. cognoscit quod pred. R. dimissus fuit per pleviam per ipsum vic. & hoc dic. quod bene facere potuit, eo quod captus fu­it pro levi transgression. & per record. ejusdem Iusticiar. compert. est quod captus fuit pro morte hominis quod est contrar. dict. pred. vicecom. & similiter quod idem Vicecom. cognovit, quod rece­pit literam Dom. Regis por quam Rex ei precepit, quod nullam gratiam fecerit illis qui capt. fuer. per precept. pred. Com. & idem vicecomes contra preceptum illud dimisit pred. Willielmum filium Walteri per pleviam qui captus fuit per pretextum pred. Comitis pro ut idem Vicecomes fatetur. Et sic tam ratione ipsius transgr. quam aliorum pred. incidit in pe [...]am Stat. Concest. quod pred. Vicecomes comittatur prisonae juxta formam Statuti, &c.

Ex Rot. Parliamenti de Anno 36. Regis Ed. 3. Numero 9.

Primerment & la grand Chartre, & le Chartre de Forrest, & les autres Statuts fait en son temps de ses Progenitores per profits de luy, & de la Commenalty soient bien & ferment garder, & mise en due execution sauns disturbance mettre ou arrest faire le contre per special mandement, ou en autre manere. Le Rns. Nostre Seig­nior le Roy per assent Prelates, Dukes, Comites, Barons, & la Co­menaltie ad ordeine & establish (que) les dits Chartres & Statuts soient tenus & mise en execution so lon le dit Petition.

Numero 12.

Sta. 36. Ed. 3. num. 22. Petition. Item, comme il soit conteine en le grand Chartre & autre Sta­tut (que) nul home serra prise ne imprison per special mandement sauns Indictment, ou autre Proces a faire per le ley & sovent foits ad estre, & uncore est (que) plesures gents sont emperches prise, & imprison sauns indictement ou autre Proces fait per le ley sur eux, cibien del chose fait hors de le forrest Dom. Regis cum per autre Cause (que) please avaut dit par le command. & deliv. ceux (que) sont auxi prise per tiel special mandement contre le forme de Chartres & Statuts avaut dits.

Le Rns. Item, plest ou Roy & si nul de sent greine veigne, & fait le plaurt & droit serra fait a luy.

Parliament. Anno 42. Ed. 3. Numero 12.

Sta. 42. Ed 3. numero 12. Peticion. Item, pur ceo (que) plusors de vostre common sont disworts pur faux accusance queux sont lour accusants plus pur lour vengen­ces & singles profits (que) pur le profit del Roy ou de son people, & la accusoits pur eux ascuns ou en prison, & ascuns fait venire de­vant le consual le Roy per brief ex autre mandement de Roy al greife Relme du contre government de son people ordeine (que) si de­lores purpose ascun mattre pur profit del Roy (que) cil matire soit mando a les Iustices del un Banckes, ou del autre, ou del Assizes deut inquire ou terminere solon la ley. Et si touch la accuser ou parte dit sont scient al Common ley, & nul home soit mise a respon­dere sans presentment devant Iustices en chose de records, & per due Proces & breif original solon la auncient ley de la tere & si rien de sore avaunt. ou soit fait e' le contre soit void en ley & [Page 25] deeme pur error. Le Rns. Pur ceo (que) cest Article est Article de le grand Chartre le Roy voit ceo ley soit fait en la Petition de­mand.

Ex Rot. claus. de Anno Regni Regis Ed. 1. primo numero, Membrano 10.

Anno 1. Ed. 1. Pro transgr. Forr. Thomas de Clere de Beckwith, captus & detent. in prisona de Northamton pro transgressione forrest. habet literas Rogero de Clifford Iusticiar' citra Trent quod ponatur per Bali' Dat. apud Sanct. Martin. Magn. London 20. die Octobr.

Membrano 7.

Pro transgr. Forrest. Stephanus de Lindsey capt. & detent. in prisona pro transgres. per ipsum fact. in Forrest. Regis de Lindley habet literas Regis Galfrido de Nevill Iusticiar. ultra Trent. quod ponatur per ballium.

Membrano 8.

Pro morte ho­minis. Tho. Spademan capt. & detent. in prisona de Oxon. pro morte Willielmi Winne unde rectat. est habet literas Regis Vicec. Oxon. quod ponatur per ball'.

Membr. 9.

Willielmus de Deane, Matheus Crust, Roger de Bedell, W. [...]alfefrench, Robertus Wyat, Alexander Harcing, Harry de Shorne, Nicolas de Sindilonde, Turgesius de Hertfield, Robertus de Pole, & Richardus Galias, capti & dent in prisona de Cant. pro morte Galfridi de Cottiller unde appellati sunt habent literas Regis Vic' Kan. quod ponantur per Ball' Dat. 23. Martij.

Claus. Anno 2. Ed. 1. Membr. 12.

Anno 2. Ed. 1. Pro transgr. Forrest. Rex Roger de Clifford, Iusticiar. Forrest. citra Trent manda­mus nobis quod si Robertus Ʋnwin, Capt. & detent. in prisona nostra de Aylesbury pro transgr. Forrest. nostri invenerit nobis 12. probos & legales homines de Ball. vera qui manucapiant cum habere corum Iusticiar. nostr. ad placita Forrest. cum in partes, &c. ad Stand. inde rectat. hunc ipsum Robertum si secun­dam Assisam Forrest. fuer. repleg per dictos disodecim interim tra­ditur in Ball sicut praed. est & habeatis nomina illornm 12. homi­num. Et hoc bre. &c. Dat. 27. Februar.

Claus. Anno 12. Ed. 1. nu. 14.

De ponend. in Ball'. Pro transgr. Forr. Winimus de Brirot, Galfridus de Wickeram, & Hugo de Stone, detent. in prisona Regis de Ailesbury pro transgr. venationis ha­buit bre. direct. Rogero de Clifford Iusticiar. Forrest. quod si se­cundum Assiss. Foristacerunt repleg. us (que) advent. Iusticiar. Regis ad plita Forrest. cum in partes illas venerunt. dat. apud Coddington 28. die Decembr.

Nu. 15.

Pro morte ho­minis. Guilbert Courvey de Keddington, & Hugo le Taylor de Ked­dington Capt. & detent. in prison [...] sancti Edmundi pro morte Bunting unde rectati sunt habuerint literas Regis Vic' Suff. quod ponantur per Ball'.

Claus. Anno 3. Ed. 1. num 11.

Anno 3. Ed. 1. Pro morte ho­minis. Galfridus de Hairton captus & detentus in prisona Regis Ebor' pro morte Adel' Clerke unde rectatus est habet literas Regis vic' Ebor. quod ponatur per Ball' Dat apud Westminst. 14. Junij.

Num. 20.

Pro morte ho­minis. Robertus Belbarbe captus et detentus in prisona de Newgate pro morte Thomae Pollard unde rectatus est habet literas Regis Vic. Midd. quod ponatur per Ball' Dat. 28. Februar.

Claus. nu. 4. Ed. 1. Membr. 5.

Pro transgr. Forrest. Mandatum est Rado de Sandwico quod si W. de Pattare, & Iohannes filius ejus, Walterus Home, Walterus Corwen, Henricus Path, & W. Cadegan, capt. & detent. in prisona Regis de Sct. Brionell pro transgr. Forr. unde rectati sunt invenerint sibi 12. probos & legales homines de Ballia sua, vizt. quilibet eorum 12. qui eos manuc ap' habere coram Iusticiar. Regis ad plita Forrest. cum in partes illas venerint ad stand. inde rectat. tunc ipsos Wil­lielm. Iohannem, Walterum, Walterum, Henricum, & Willielm. pred. 12. si secundum Assiss. fuer. repleg. tradantur in Ball' ut pred. est si habent ibi nomina illorum 12. hominum & hoc bre. Test. Rege apud Bell' locum Regis 29. die Augusti.

Claus. Anno 4. Ed. 1. membr. 16.

Pro morte ho­minis. Henricus filius Rogeri de Kemi & Cottesbrooke capt. & detent. [Page 27] in prisona nostra Northampton promorte Symonis de Charrettell unde appellatus est habet literas Regis Ʋic' Northampton quod ponatur per ballium.

Claus. Anno 5. Ed. 1. membr. 1.

Pro transgr. Forrest. Mandatnm est Galfrid. de Nevil Iusticiar. Forrest. ultr. Trent. quod S. Walterus de le Greene Captus & detentus in prisona de Nottingham pro transgr. For' invenerit sibi 12. probos & legales homines qui eum manucapiant, &c. ad stand' inde rectat. secun­dum assiss. Forr' Regis tunc ibidem Walter. pred. 12. traditur in Ballium sicut praed. est. Dat. 16. Novemb.

Membrano 2.

Pro morte ho­minis. Thomas de Ʋpwell, & Iuliana uxor ejus Capt. & detent. in prisona de Wynbotesham pro morte Stephani Southet unde re­ctat. sunt habent literas Vic' Norff. quod ponantur per Ballium. Dat. apud Rothelm 28. die Septembr.

Claus. Anno 6. Ed. 1 nu. 2.

Pro morte uxor. Bitherus Pestle captus & detentus fuit in prisona Rs de Nor­wici pro morte Iulianae quondam uxor' suae unde rectatus est & habet literas Vic' Norff. quod ponatur per Ball' Teste Rege apud Westminst. 12. Novemb.

Membr. 4.

Pro transg. Forr. Mandatum est Vic' Nottingham quod si Tho. de Cudart rectat. de transgr. Forrest. quod fecisse dicebatur in Forrest. de Sherwood invenerit sibi sex probos & legales homines de Ballia sua qui eum Manucap' habere coram rege ad mandatum regis ad Stand. rect. coram rege cum Rex inde cum eo loqui voluerit tunc praed. Tho. praed. 6. hominibus trad. in Ball' juxta manucapt. praed. Dat. 12. die Decembr.

Membr. 4.

Pro morte homi­nis. Tho. Burrell captus & detent. in prisona Regis Oxon. pro morte Galfrid. Geffard unde rectat. est habet literas Dom. Regis Vic' Devon. quod ponatur per Ball'.

Claus. Anno 1. Ed. 2. Membr. 1.

Pro morte ho­minis. Iohannes Brynn de Rollin Writh capt. & detent. in prisona [Page 28] Regis Oxon. pro morte Johannis de Sutton unde rectat. est habet li­teras Regis Vic. Oxon. quod ponatur per Ball. us (que) prim. Assiss. si ea occasione, &c. Teste Rege apud Bristoll 28. Iunij.

Membr. 2.

W. Spore Capell. capt. & detent. in prisona Regis Oxon. pro morte Johannis Spore unde Jndictatus est, & habet literas Regis Vic D'evon. quod ponatur per Ballium us (que) ad prox. Assis. si ea occasione, &c. Teste rege apud Windsor 28. die Maij.

Numero 10.

Pro morte homi­nis. Guilbertus Fairchild capt. & dotent. in Gaole Regis Dorce­ster pro morte Heneri de Langton unde indictat. est habet literas quod ponatur per Ballium us (que) ad prim' assiss. Teste Rege apua Westminst. 28. Februar'.

Claus. Anno 2. Ed. 2. Membr. 1.

Pro morte ho­minis. Willielmus Sandie de Cobham Capt. & detent. in prisona Re­gis Cant. pro morte Iohannis de Sprink, Iohannis Ermond de Dun­berke unde rectatus est habet literas Regis Vic' Kanc' quod pona­tur per Ball' us (que) ad primam Assiss. Si ea occasione, &c. Teste rege apud Cestre. 29. Iunij.

Pro morte ho­minis. Radūs Corynn capt. & detentus in Gaole Regis de Lincolne pro morte Willielmi Filij Symonis Porter unde rectat. est & habet li­teras Regis Vic' Lincolne quod ponatur per Ball' us (que) ad primum Assiss. Si ea occasione, &c. Teste rege apud Sheene 3. die Iunij.

Membrana 7.

Pro morte ho­minis. Iohannes de Githerd Capt' & detent. in prisona Regis Ebor' pro morte Mathei Sampson de Ebor' unde rectatus est habet lite­ras Regis Vic' Ebor' quod ponatur per Ball' us (que) ad prim' Assiss. Dat. apud Langele 50. die Aprilis.

Claus. 3. Ed. 2. Membr. 3.

Pro morte ho­minis. Adam de Pepper captus & detent. in Gaole Regis Ebor' pro morte Henrici de Syner' de Eastrick unde rectatus est habet literas Regis Vic' Ebor' quod ponat' per Ball' us (que) ad primum Assiss. Teste rege apud Westminst. 7. die Febr.

Numero 14.

Pro morte 2. femes. Margareta uxor Willielmi Colbot capta & detenta in Gaol Regis Norwici pro morte Agnetis filiae Willielmi Colbot, & Ma­tildae sororis ejusdem Agnetis unde rectata est habet literas Regis Vic' Norff. quod ponatur per Ball' Teste rege apud Sheene 22. Ianuar.

Numero 16.

Pro morte ho­minis. Iohannes Frere Captus & detent. in Gaole Regis Oxon. pro morte Adae de Egeleigh unde rectata est habet literas Regis Vic' Devon. quod ponatur per Ball' Teste rege apud Westminst. 8. Decembr.

Claus. Anno 4. Ed. 2. Membr. 7.

Pro morte hom. Robertus Shrene Capt. & detent. in Gaole Regis de Colchester pro morte Roberti le Maigme unde rectat. est habet literas Regis Vic' Essex quod ponatur per Ball' us (que) ad prim' Assiss. Dat. 22. die Maij.

Numero 8.

Pro morte hom. W. Filius Robertile Fishere de Shirborne capt. & detent. in Gaole Regis Ebor' pro morte Roberti le Monus de Norton unde rectatus est habet literas Regis Vic. Ebor. quod ponatur per Ball. us (que) ad primam Assiss. Dat. 25. April.

Claus. Anno 4. Ed. 2. Numero. 22.

Pro morte hom. Thomas Ellis de Stanford capt. & detent. in prisona Regis Lincolne pro morte Michaelis filii Willielmi de Fodering unde rectat. est habet literas Regis Vic. Lincolne quod ponatur per Ball' us (que) ad prim. Assiss. Teste Rege apud novum monasterium 8. die Septembr.

Mr. Seldens Argument.
The Argument which by the Command of the House of Commons was made at their first conference with the Lords, touching the personall libertie of the person of every Free-man, out of Presidents of Record, and resolutions of Judges in for­mer times.

MY LORDS,

YOur Lordships have heard from the Gentle­man that last spake a great part of the grounds upon which the House of Com­mons upon mature deliberation proceeded to that cleere resolution touching the right of the libertie of their persons. The many Acts of Parliament, which are the written lawes of the Land, and are expresly in the point, have beene read and opened, and such Objections as have beene by some made to them, and some Objections also made out of another Act of Parliament, have beene cleered and answered. It may seeme now perhaps (my Lords) that little remaines needfull to bee further added, for the inforcement and maintenance of so fun­damentall and established a right and libertie belonging to every Free-man of the Kingdome. But in the examination of questions of Law of right, besides the Lawes or Acts of Par­liament, that ought chiefly to direct and regulate every mans judgement, whatsoever hath beene put in practise to the con­trary, there are commonly used also former Judgements or Presidents, and indeed have beene so used sometimes, that the weight of reason, of law, and of Acts of Parliament, hath been laid by, and resolutions have beene made, and that in this very point, only upon the interpretation and apprehension of Presi­dents. [Page 31] Presidents my Lords are good media or proofes of illustration or confirmation where they agree with the expresse Law, but they can never bee proofe enough to overthrow any one law much lesse seven severall Acts of Parliament as the number of them is for the point. The house of Commons therefore taking into consideration that in this question being of so high a nature that never any exceeding it in any Court of Justice whatsoever all the severall wayes of just examination of the truth should be used, have also most carefully informed themselves of all for­mer judgements or presidents concerning this great point ei­ther way, and have beene no lesse carefull of the due preserva­tion of his Majesties just prerogative then of their owne rights. The Presidents here are of two kinds, either meerely matter of record, or else the former resolutions of the Judges after solemne debate in the point.

This point that concernes presidents the House of Commons have commanded me to present to your Lordships, which I shall as briefly as I may, so I doe it faithfully and perspicuously. To that end my Lords, before I come to the particulars of any of those Presidents, I shall first remember to your Lordships, that which will seeme as a generall key for the opening and true apprehension of all them of Record, without which key no man unlesse he be verst in the entries and course of the Kings Bench can possibly understand them.

In all cases my Lords where any right or libertie belongs to the Subjects by any positive law written or unwritten, if there were not also a remedie by Law for the enjoying or regaining this right or libertie when it is violated or taken from him, the positive law were most vaine and to no purpose, and it were to no purpose, for any man to have any right in any land or other inheritance, if there were not a knowne remedie, that is an action or writ, by which in some Court of ordinary Justice he might recover it. And in this case of right of libertie of person, if there were not a re­medie in the Law for regaining it when it is restrained, it were of no purpose to speak of lawes that ordain it should not be restrained. Therefore in this case also I shall first shew you [Page 32] the remedie that every Free-man is to use for the regaining of his libertie when he is against law imprisoned, that so upon the legall course and forme to be held in using that remedie, the Presidents or Judgements upon it, for all Judgements of Record rise out of this remedie, may bee easily understood. There are in law divers remedies for inlarging of a Free-man imprisoned, as the writts of Odio & Atia, and of Homine re­plegiando, besides the common or most knowne Writs of Ha­beas Corpus, or Corpus cum causa, as it is called also.

The first two Writs are to be directed to the Sherifs of the County, and lie in some particular Cases, with which it would be untimely for me to trouble your Lordships, because they concerne not that which is committed to my charge. But that Writ of Habeas Corpus, or Corpus cum causa, is the highest re­medie in Law for any man that is imprisoned, and the only remedie for him that is imprisoned by the speciall command of the King, or the Lords of the Privie Counsell, without shewing cause of the commitment, neither is there in the law any such thing, nor was there ever mention of any such thing in the Lawes of this Land, as a Petition of right to be used in such cases for libertie of the person, nor is there any legall course for inlargement to be taken in such cases, howsoever the contrary hath upon no ground or colour of law beene preten­ded. Now my Lords, if any man be so imprisoned by any such command, or other wise, in any prison whatsoever through England, and desire by himselfe, or any other in his behalfe, this Writ of Habeas Corpus for the purpose in the Court of the Kings Bench, the Writ is to be granted to him, and ought not to be denied him, no otherwise then another ordina­ry originall Writ in the Chancery, or other common Proces of law may be denied, which amongst other things the House resolved also, upon mature deliberation, and I was com­manded to let your Lord sh. know so much. This Writ is dire­cted to the Keeper of the Prison in whose custodie the prisoner remaines, commanding him that after a certaine day he bring in the body of the prisoner, ad Subiiciend. & recipiend. juxta quod curia conceda verit, &c. una cum causa Captionis, & detentionis, and oftentimes una cum causa detentionis only, captionis being omitted.

The Keeper of the prison therupon returns by what warrant he detaines the prisoner, and with his returne filed to his Writ, brings the prisoner to the Barre at the time appointed; When the returne is thus made, the Court judgeth of the sufficiency or insufficiency of it, only out of the body of it, without having respect to any other thing whatsoever; that is they to suppose the returne to be true whatsoever it be, if it bee false, the priso­ner may have his action on the Case against the Gaoler that brought him. Now my Lords, when the prisoner comes thus to the Barre, if he desire to be bayled, and that the Court upon the view of the returne thinke him in Law to bee bayleable, then he is alwayes first taken from the keeper of the Prison that brings him, and committed to the Marshall of the Kings Bench, and afterwards bayled, and the entry perpetually is Committi­tur Mariscallo & postea traditur in Ball', for the Court never bayles any man, untill he first become their owne prisoner, and be in Custodia Marriscall' of that Court. But if upon the re­turn of the Habeas Corpus it appeare to the Court, that the pri­soner ought not to be bayled, nor discharged from the prison whence he is brought, then he is remanded or sent back againe there to continue, untill by course of law he may be delivered, and the entrie in this Case is Remittitur quous (que) secundum le­gem deliberatus fuerit, or Remittitur quous (que), &c. which is all one, and the highest award or judgement that ever was or can be given upon a Habeas Corpus. But if the Judges doubt only whether in Law they ought to take him from the prison whence he came, or give a day to the Sherife to amend his Writ, as often they doe, then they remaund him only, during the time of their doubte, or untill the Sherife hath amen­ded his returne, and the Entrie upon that is Remittitur only, or Remittitur prisonae praed, without any more. And so remittitur generally is of farre lesse moment in the award upon the Ha­beas Corpus, then remittitur quous (que), &c. howsoever the vulgar opinions raised out of the late Judgement be to the contrary. All these things are of most knowne and constant use in the Court of Kings Bench, as it cannot be doubted but your Lord­ships will easily know from the grave and learned my Lords the Judges.

These two courses, the one of the entrie of Committitus Marescall. & postea traditur in Ballium, and the other remit­titur quous (que), &c. & Remittitur generally, or Remittitur prisonae pred, together with the nature of the Habeas corpus, thus stated, it will bee easier for me to open, and your Lordships to ob­serve, whatsoever shall occurre to the purpose in the Presidents of record, to which I shall come now in the particular. But before I am come to the Presidents, I am to let you know the resolutions of the house of Commons touching the in­largement of a man committed by the command of the King, or the Privie Counsell, or any other, without cause shewed of such commitment, it is thus; That if a Freeman be commit­ted or detained in prison or otherwise restrained by the com­mand of the King, the Privie Counsell, or any other, and no cause of such commitment, deteiner, or restraint, to be expressed for which by law he ought to be committed, detained, or re­strained, and the same be returned upon a Habeas Corpus gran­ted for the party, then he ought to be delivered and bayled.

This resolution as it is grounded upon the Acts of Parlia­ment already shewen, and the reason of the law of the Land, which is committed to the charge of another, and anon also to be opened to you, is strengthened also by many Presidents of Record.

But the Presidents of Record that concerne this point are of two kinds, for the House of Commons hath informed it selfe of such as concerne it either way. The first such as shew expresly that persons committed by the command of the King or of the Privie Counsell without other cause shewed have beene inlarged upon bayle when they prayed it, whence it appeareth cleerely, that by the law they are bayleable, and so by Habeas Corpus to bee set at libertie, for though they ought not to have beene committed without a cause shewed of the commitment, yet it is true that the reverend Judges of this Land did such respect to such commitments by the com­mand of the King or of the Lords of the Counsell (as also to the commitment sometimes of inferiour persons) that upon the Habeas Corpus, they rarely used absolutely to discharge the persons instantly, but only to enlarge them upon Bayle, which [Page 35] sufficiently secures and preserves the liberty of the Subject ac­cording to the lawes that your Lordships have already heard, nor in any of the cases is there any difference made betweene such cōmitments by the Lords of the Counsel, that are incorpo­rated with him. The second kind of Presidents of Record are such as have beene pretended to prove the law to bee contra­ry, and that persons so committed ought not to be set at liber­tie upon bayle, and are in the nature of Objections out of Record.

I shall deliver them summarily to your Lordships with all faith, and also true Copies of them, out of which it shall ap­peare cleerely to your Lordships, that of those of the first kind there are no lesse then 12. most full and directly in the point to prove that persons so committed are to be delivered upon bayle, and amongst those of the other kind, there is not so much as one, not one, that proves at all any thing to the con­trary; I shall first my Lords goe through them of the first kind, and so observe them to your Lordships, that such scruples as have beene made upon them by some that have excepted a­gainst them shall bee cleered also, according as I shall open them severally.

Pasc. 18. Ed. 3. Bildestons Case. The first of the first kind is of Ed. 3. time, it is in Pasche 18. Ed 3. Rot. 33. The Case was thus;

King Ed. 3. had committed by Writ, and that under his great Seale (as most of the Kings commands in those times were) one Iohn de Bildeston a Clergie man to the prison to the Tower without any cause shewed of the commitment. The Lievtenant of the Tower is commanded to bring him to the Kings Bench, where he is commited to the Marshall, but the Court askes of the Lievtenant, if there were any cause to keep this Bildeston in prison, besides that commitment of the King, he answered no, whereupon the Roll sayes, Quia videtur cur bre. praed. sufficient. non esse causam praed. Iohan, de Bildeston in pri­sona Dom Regis hic detinend' idem Iohannes admittitur per ma­nucaptionem Willielmi de Wakefield, and some others, where the Judgement of the point is fully declared in the very point.

22. H. 8. Par­kers Case. The second in the first kind of Presidents of Record is in the time of H. 8. one Iohn Parkers Case, who was committed to [Page 36] the Sherife of London, pro securitate pacis, at the suite of one Brinton, ac pro suspitione feloniae committed by him in Glocester­shire, ac per mandatū Dom. Rs. he is committed to the Marshall of the Kings Bench, & postea isto eodem termino traditur in Ball' here were other causes of the commitment, but plainly one was by the command of the King, signified to the Sherife of London, of which they tooke notice, but some have interpreted this, as if the commitment had beene for suspition of felonie by the command of the King, in which case it is agreeable of all hands, that the Prisoner is bayleable, but no man can thinke so of this president that observes the context and understands the Grammar of it, wherein most plainly ac per mandatū Dom. Re­gis hath no reference to any other cause whatsoever, but is as a single Cause enumerated in the returne by it selfe, as the Re­cord cleerely sheweth, it is in 22. H. 8. Rot. 37.

35. H. 8. Bincks Case. The third is of the same Kings time, it is 35. H. 8. Rot. 33. Iohn Bincks Case, he was committed by the Lords of the Counsell pro suspitioniae feloniae ac pro aliis causis illos moventibus qui com­mittitur Mariscallo & immediate ex gratia curiae speciali tradi­tur in Ball' They committed him for suspition of felonie and other causes them thereunto moving, wherein there might be matter of State, or whatsoever else can be supposed, and plainly the cause of their commitment is not expressed, yet the Court bayled him without having regard to these unknowne causes that moved the Lords of the Counsell. But it is indeed some difference from either of those other 2. that precede, and from the other 9. also that follow, for it is agreed, that if a cause be expressed in the returne, insomuch that the Court can know why he is committed, that then he may be bayled, but not if they know not the cause, now a man is committed for a cause expressed, & pro aliis causis Dominos de Consilio moventibus, certainly the Court can no more know in such a case what the cause is, then any other.

2. & 3. P & Mar. Overtons Case. The fourth of these is in the time of Queene Mary, it is Pasche 2. & 3. P. & Mar. Rot. 58. Overtons Case, Richard O­verton was returned upon a Habeas Corpus, directed to the She­rifes of London, to have beene committed to them and detey­ned per mandatum pranobilium Dominorum honorabilis consilij [Page 37] Dominorum Regis & Reginae, Qui committitur Marr. & immediate traditur in Ball'. In answer to this President, or by way of objection to the force of it, It hath beene said that this Overton at this time stood indicted of high treason. It is true, he was so indicted, but that appeares in another Roll, that hath no reference to the returne, as the returne hath no reference to that Roll, yet they that object this against the force of this President, say that because he was Indicted of Treason, therefore though he were committed by the Command of the Lords of the Counsell without cause shewed, yet he was bayleable for the Treason, and upon that was here bayled; Then which obje­ction nothing is more contrary, either to law or common rea­son. It is most contrary to law, for that cleerely every re­turne is to be adjudged by the Court out of the body of it selfe, and not by any other collaterall or forraigne Record whatsoe­ver, Therefore the matter of Indictment here, cannot in law be cause of bayling of the Prisoner, And so it is averse to all common reason, that if the objection be admitted, it must of necessitie follow, that whosoever shall be committed by the King, or the Privie Counsell, without cause shewed, and bee not indicted of Treason or some other offence, may not be in­larged, for by reason of supposition of matter of State, But that whosoever is so committed, and withall stands so indicted though in another Record may bee inlarged, whatsoever the matter of State be for which he was committed. The absur­ditie of which assertion needs not a word for further confuta­tion, as if any of the Gent. in the last judgement, ought to have beene the sooner delivered, if hee had beene also Indi­ted of Treason, if so, Traitours and Fellons have the highest priviledge in personall libertie, and that above all other Sub­jects of the Kingdome.

4. & 5. Phil. & Mar. Newports Case. The fifth of this kind is of Queene Maries time also, it is Pasch. 4. & 5. P. & Mar. Rot. 45. the Case of Edward Newport, hee was brought into the Kings Bench by Habeas Corpus out of the Tower of London, Cum causa, vizt. Quod Commissus fuit per mandatum Concilii Dominae Reginae qui committitur Marr. & immediate traditur in Ballium.

Vn objection Rnde. To this the like answer hath beene made, as to that other Case of Overtons next before cited, they say that in another roll of another terme of the same yeare, it appeares he was in question for suspition of Coyning, and it is true he was so, But the returne and his Commitment mentioned in it have no re­ference to any such offence, nor hath the Baylement of him relation to any thing but to the absolute commitment by the privie Counsell: So that the answer to the like objection made against Overtons Case satisfies this also.

9 El. Lawrences Case. The sixth of these is of Queene Elizabeths time, Mich. 9. El. Rot. 35: the case of Tho. Lawrence; this Lawrence came in by Habeas Corpus, returned by the Sheriffs of London to be de­tained in prison per mandat. Consilij Dominae Regina qui Com­mittitue Marr. & super hoc traditur in Ballium.

Objection Rend. An objection hath beene invented against this also, it hath beene said that this man was pardoned, and indeed it appeares so in the Margin of the roll, where the word pardonatur is en­tred, but clearely his in largement by Bayle was upon the bo­dy of the returne onely, unto which that note of pardon in the Margin of the roll hath no relation at all, and can any man think, that a man pardoned (for what offence soever it be) might not as well be committed for some Arcanum, or matter of State, as one that is not pardoned, or out of his innocencie wants no pardon?

9 El. Constables Case. The seaventh of these is in the same yeare, and of Easter Terme following, it is P. 9. El. Rot. 68 Ro. Constables Case, he was brought by Habeas Corpus out of the Tower, and in the re­turne it appeared he was committed there, per mandatum pri­vati Consiliidictae Dominae Reginae qui Comittitur Marr. & posteae isto eodem ter. traditur in Ball. The like objection hath beene made to this, as that before of Lawrence, but the selfe same an­swer clearely satisfies for them both.

20 El. Brow­nings Case. The 8. is of the same Queenes time in Pas. 20 El Rot. 72. Iohn Brownings Case. This Browning came by Habeas Corpus out of the Tower, whether he had beene committed, and was re­turned to have been committed, per privat. Consil. Dominae Re­ginae qui comittitur Marr. & postea isto codem termino traditur in Ball. Objection Rnde. To this it hath beene said, that it was done at the [Page 39] chiefe Justice Wrayes Chamber, and not in the Court: and thus the authority of the President hath beene lesned or sleighted. If it had beene done at his Chamber, it would have proved at least this much, that Sir Christopher Wray then chiefe Justice of the Kings Bench, being a grave learned and upright Judge, knowing the Law to be so, did Bayle this Browning, and en­large him, and even so farre the President were of value e­nough; but it is plaine, that though the habeas corpus were re­turnable, as indeed it appeares in the Record it self, at his Cham­ber in Serjeants Inn; yet he only committed him to the Kings Bench presently, and referred the consideration of inlarging him to the Court, who afterward did it: For the Record sayes, Et postea isto eodem termino traditur in Ball. which can­not be of an inlargement at the chiefe Justice Chamber.

40 El. Hare-Courts Case. The ninth of this first kind is Hill. 40. El. Rot. 62. Edward Hare Courts Case, hee was imprisoned in the Gatehouse, and that per Domines de private Consilio Dominae Reginae pro certis causis eos moventibus & ei ignotis, And upon his habeas corpus was returned to be therefore onely detained, Qui Comittitur Marr. & postea isto eodem termino traditur in Ball. To this never any colour of answer hath beene yet offered.

43 El. Cates­bies Case. The tenth is Catesbies Case in the vacation after Hill. Term 43. El. Rot. Robert. Catesbie was cōmitted to the Fleet per war rantum diversor. pro nobilium viroy de privato Consilio Domine Regina: He was brought before Iustice Fenner, one of the then Iustices of the Kings Bench by Habeas Corpus at Winchester house Southwark, Et homiss. fuit Marr. per prefat. Edwardum Fenner & statim traditur in Ball.

12 Iac. Beck­withs Case. The eleventh is Rich Beckwiths Case, which was in Hill. 12 of K. Iames Rot. 153. He was returned upon his Habeas corpus to have beene committed to the Gatehouse by divers Lords of the privie Counsel, Qui committitur Marr. & postea esto eodem termino traditur in Ball.

Objection Rnde. To this it hath bin said by some, that Beckwith was bayled upon a letter, written by the Lords of the Counsell to that pur­pose to the Iudges, but it appeares not that there was ever any letter written to them to that purpose, which though it had beene, would have proved nothing against the authority of the [Page 40] Record: for it was never heard of that Iudges were to be di­rected in point of law by letters from the Lords of the Coun­sell, although it cannot bee doubted, but that by such letters, sometimes they have been moved to bayle men that would or did not ask their inlargement without such letters, as in some examples I shall shew your Lordships among the presidents of the second kind.

14 Iac. Sir Tho. Moun­sons Case. The 12 and last of these, is that of Sir Tho. Mounsons Case, it is Mich. 14. Jac. Rot. 147. Hee was committed to the Tower per warrantum a diversis Dominis de privato Consilio Domini Regis locum tenenti directum, And he was returned by the Liev­tenant to be therefore detained in prison, qui committitur Marr. & super hoc traditur in Ball.

Objection Rnde. To this it hath beene answered, that every body knowes by common fame, that this Gentleman was committed for su­spition of the death of Sir Tho. Overbury, and that hee was therefore bayleable; a most strange interpretation, as if the bo­dy of the return, and the warrant of the privie Counsel, should be understood, and adjudged out of fame onely; was there not as much a fame why the Gentlemen that were remanded in the last judgement were committed, and might not the selfe same reason have served to enlarge them, their offence (if any were) being I think much lesse then that for which this Gen­tleman was suspected?

And thus I have faithfully opened the number of 12 Presi­dents most expresse in the very point in question, and cleared the objections that have beene made against them.

And of such presidents of Record as are of the first kinde, which prove plainly the practise of former ages, and judge­ment of the Court of Kings Bench, in the very point, on the be­halfe the Subject, my Lords hitherto.

I am come next to those of the second kind, or such as are pretended that persons so committed are not to be inlarged by the Iudges upon the habeas corpus brought, but to re­maine in prison still at the command of the King or the privie Counsell.

Presidents del 2. sort. vouch ꝑ le Roy. These are of two natures, the first of these are where some assent of the King or the privie Counsell appeares upon the [Page 41] inlargement of a prisoner so committed, as if that because such assent appeares, the inlargement could not have beene without such assent.

The second of this kind are those which have beene urged as expresse testimonies of the Iudges denying bayle, and in such cases, I shall open these also to your ships, which being done, it will most clearely appeare, that there is nothing at all in any of these that makes any thing at all against the resoluti­on of the house of Commons touching this point: nay, it is so farre from their making any thing against it, that some of them add good weight also to the proofe of that resolution.

Temps H. 7 Brugs Case. For those of the first nature of this second kind of Presidents, they begun in the time of H. 7. Tho. Brugge, and divers others were imprisoned in the Kings ad mandatum Dom. Regis, they never sought remedy by habeas corpus, or otherwise, for ought appeares: But the Roll sayes, that Dominus Rex relax­avit mandatum, and so they were bayled. But can any man think that this is an Argument either in Law or common rea­son, that therefore they could not have beene bayled without such assent? It is common in Cases of common persons, that one being in prison for surety of the peace or the like, at the suit of another, is bayled upon the release of the party plaintiffe; Can it follow, that therefore he could not have beene bayled without such release? nothing is more plain then the contrary. It were the same thing to say, that if it appeare, that if a plain­tiff be non suit, therefore unlesse he had been non suit, he could not have been barred in the suit. The Case last cited is, Mich. 7. H. 7 rot. 6.

7 H. 7. Bar­tholomews Case. The very like is in the same yeare, Hill 7. H. 7. Rot. 13. The Case of Will. Bartholomew, Will. Chase and divers others, and the selfe same answer that is given to the other cleares this.

7 H. 7. Beo­monds Case. So in the same yeare Pas. 7. H. 7 rot. 18. Iohn Beomonds Case is the same in substance with those other two, and the self same answer also satisfies that cleares them.

12 H. 7. Yews Case. The next Case is, Mich. 12. H. 7. rot. 8. Tho. Yews Case, hee was committed ad sec. pacis, for the security of the peace, at the suit of one Freeman, and besides, ad mandatum Dom. Regis, And first, Freeman relaxavit sec. pacis, and then Sir James [Page 42] Hubbard, the then Kings Attomey Generall relaxavit manda­tum Dom Regis, And hereupon he is bayled, the release of the Kings Attomy, no more proves that he could not have bin inlar­ged, without such release or assent, then that he could not have bin bayled, without release of surety of the peace by Freeman.

9 H. 7. Bo­chers Case. The very like is in Hill. 9. H. 7. rot. 14. The Case of Hum­phry Boch, which proves no more here then the rest of this kind already cited.

39 Eliza. Broomes case Then for this point also Broomes Case of Queene Elizabeths time, is Trim. 39. El. rot. 128. Lawrence Broome was committed to the Gatehouse per mandatum Dom. Consilii Dominae Reginae, And being returned so upon the habeas corpus, is first commit­ted to the Marshalsey as the course is, and then bayled by the Court, which indeed is an expresse president, that might per­haps well have been added to the number of the first 12, which so plainly shew the practise of inlarging prisoners in this Case, by judgment of the Court upon the habeas corpus, But it is true, that in the scrowles of that yeare where the bayles are entred, but not in the Record of the Habeas Corpus, there was a note, that this Broome was bayled per mandatum privati Consi­lii, but plainly this is not any kind of Argument, that therefore in law he might not have beene other wise bayled.

40 Wendens Case. The selfe same is to be said of another of this kind, in Mich. 40. El. rot. 37. Wendens Case, Tho. Wenden was committed to the Gatehouse by the Queene and the Lords of the Counsell procertis causis generally, he is brought by Habeas corpus into the Kings Bench, and bayled by the Court. But it is said, that in the Scrowles of that yeare it appeares, that his inlargement was pro consensum Dom. privati Consilii, and it is true that the Queenes Attorney did tell the Court, that the Lords of the Counsell did assent to it. Followes it therefore that it could not have beene without such assent.

43 Eliz. Next is Hill. 43. El. rot. 89. when divers Gentlemen of speci­all quality were imprisoned by the command of the Privie Counsell, the Queen being graciously pleased to inlarge them, sends a comandement to the Iudges of the Kings Bench, that they should take such a course, for the delivering of them upon bayle as they should think fit, and they did so, and inlarged [Page 43] them upon Writs of hab. corpus. Followes it therefore, that this might not have beene done by law, if the parties themselves had desired it.

Iac. Sir Io. Brockets Case. So in Tr. 1 Jac. rot. 30. Sir Io. Brocket being committed to the Gatehouse, is returned to stand committed pro mandatum pravati Consilii, and hee is inlarged virtute warranti. a Consilio predicti. But the same answer that satisfie for the rest before cited, serves for this also.

12 Iac. James Reynar Case The last of these, is Reynars case, in Mich. 12. Iac. rot. 119. hee was committed to the Gatehouse, by the Lords of the Counsel, and being brought into the Kings Bench by Habeas Corpus, is inlarged upon bayl, but this they say was upon a letter written from one of the Lords of the Counsell to the Iudges. It is true that such a letter was written, but the answer to the former presidents of this nature, are sufficient to cleare this also.

And in all these observe:

1 That it appeares not, that the party ever desired to be in­larged by the Court, or was denied it.

2 Letters either from the King or Counsell cannot alter the law in any case: So that hitherto, nothing hath beene brought on the cōtrary part, that hath any force or colour of reasō in it.

Wee come now my Lords to those presidents of the other nature cited against the liberty of the Subject: That is, such as have beene used to mislike, that persons so committed may not be inlarged by the Court.

They are in number eight, but there is not one of them that proves any such thing, as your Lordships will plainly see upon­opening them.

The first foure of them are exactly in the same words, saving that the names of the persons and the prisons differ, I shall therefore recite them all one after another, and then cleare them together.

7 H. 7. Eve­rards Case. The first is Richard Everards case, Hill. 7. H. 7. rot. 18. he and others were committed to the Marshalley of the Houshold per mandatum Dom. Regis, and so returned upon a habeas cor­pus into the Kings Bench, whereupon the entry is onely Qui committitur Marr. &c.

8 H. 7. Cher­ries Case. The second is Hill. 8. H. 7. Richard Cherries case he was com­mitted [Page 44] to the Major of Windsor per mandatum Dom. Regis, and so returned upon a habeas corpus, and the entry is onely Qui committitur Marr. &c.

9 H. 7. Bur­tons Case. The third is Hill. 9. H. 7. rot. 14. Christopher Burtons case, who was committed to the Marshalsey of the Houshold, per man­datum Dom. Regis, and so returned upon his habeas corpus, and the entry is likewise Qui committitur Marr. &c.

19 H. 7. Vrs­wicks Case. The fourth is George Vrswicks case, Pas. 19. H. 7 Rot. 19. he was committed to the Sheriffs of London per mandatum Dom. Regis, and returned so upon his habeas corpus, Qui committitur Marr. &c.

These foure have beene used principally, as expresse presi­dents, to prove that a prisoner so cōmitted cannot be inlarged, and perhaps at the first sight, to men that know not, and ob­serve not the course and entries of the Court of Kings Bench, they may be apprehended to prove as much, but in truth they rather prove the contrary, at least there is no colour in them of any such matter as they have beene used for. To which pur­pose I beseech your Lordships to call to your memories, that which I first observed to you touching the course of that Court. Where a prisoner is brought in by habeas corpus, he is (if he be not to be remanded) first committed to the Marshall of the Court, and then bayled as his case requires. This is so certaine as it can never be otherwise. Now these men being thus com­mitted expresse command of the King, are first you see taken from the prisons whither they were first committed, wherein you may observe my Lords, that if a generall suspi­tion of matter of State were of force in such a case, it might be as needfull in point of State to have the prisoner remain in the prison where the King by such an absolute command commit­ted him, as to have him at all committed; when they have ta­ken them from the prisons where before they were they com­mit them to the Marshall of their owne Court, which is but the first step to bayling them: now it appeares not indeed that they were bayled, for then Traditur in Ball. had followed, but nothing at all appeares that they were denied it, perhaps they never asked it, perhaps they could not finde such as were sufficient to bayle them. And in truth whensoever any man [Page 45] is but removed from any prison in England (though it be for debt or trespasse onely) into that Court, the entry is but in the selfe same sillables as in these foure cases.

And in truth if these proceedings did prove, that any of the prisoners named in them were not bayleable, or had beene thought by the Court not to have beene bayleable, it will ne­cessarily follow, that no man living that is ordinarily removed from any prison into the Kings Bench, or that is there upon any ordinary action of debt, or action of trespasse, could bee bayled, for every man that is brought thither, and not reman­ded, and every man that is arested but for a debt or trespasse and was returned into that Court, is likewise committed to the Marshall of that Court, and by the selfe same entry, and not otherwise; yet these foure havebeen much stood on, and have strangely misled the judgement of some that did not, or would not seeme to understand the course of that Court.

7 H. 8. Pages Case. The fifth of this nature is, Edward Pages case, it is Tr. 7. H. 8. this might have beene well reckoned with the former foure, had not the misentry of the Clerk only made it vary from them. Ed. Page was committed to the Marshalsea of the Houshold, and that per mandatum Dom. Regis, and returned to be therfore detained, and the entry is Qui committitur Marr. Hospitii Dom. Regis, This word Marr. is written in the Margine of the roll; this hath beene used to prove, that the Judges remanded this prisoner, if they had done so, the remanding had beene onely while they advised, and not any such award which is given when they adjudge him not bayleable; but in truth the word Committitur shewes, that there was not any remanding of him, nor doth that Court ever commit any man to the Marshal­sea of the Houshold: and besides the word Marr. for Mar­rescallo in the Margine, shewes plainly that he was committed to the Marshall of the Kings Bench, and not remanded to the Marshalsea of the Houshold, for such entry of that word in the Margine, is perpetually in cases of that nature, when they com­mit a man to their owne prison, and so give him the first step to baylement, which he may have if he ask it, and can finde bayle; and doubtlesse these words of Hospitii pred. were added by the error of the Clerk for wnat of distinction in his understand­ing [Page 46] from the Marr. of the Kings Bench to the Marshall of the Houshold.

8 Iac. Caesars Case. The sixth of these is Tho. Caesars Case, it is 8 Iac. rot. 99. This Casar was committed to the Marshalsea of the Houshold per mandatum Dom. Regis, and returned to be therefore detained, and indeed a remittitur is in the roll, but not a remittitur quo­usque, but onely that kind of remittitur which is onely used while the Court advises. And in truth this is so farre from proving any thing against the resolution of the House of Com­mons, That it appeares that the opinion of the reverend Jud­ges of that time was, that the returne was insufficient, and that if it were not amended, the prisoner should be discharged. For in the Book of Rules in the Court of Mich. Terme (when Caesars Case was in question) they expresly ordered, that if the Stewards Marshall did not amend their returne, the prisoner should be absolutely discharged, the words of the Rule are Nisi Seneschalus & Maniscal. Hospitii Dom Regis sufficientur returnaverint brevem de Habeas Corpus Thome Caesar dier. mer­cur. prox. per ost. quindenam scilicet Martium. def. exonerabitur. And this is also the force of that President, but yet there hath beene an interpretation upon this rule. It hath beene said that the Judges gave this rule, because the truth was, that the re­turne was false, and that it was well knowne, that the priso­ner was not committed by the immediate command of the King, but by the command of the Lord Chamberlaine, and thence (as it was said) they made this rule: but this kind of in­terpretation is the first that ever was supposed, that Judges should take notice of the truth or falshood of the return other­wise, then the body of the returne could informe them. And the rule it selfe speakes plainly of them, sufficiencie onely, and not of the truth or falshood of it.

Emersons Case. The seventh of these is the case of Iames Desmaistres, Edward Emerson, and some others that were brewers, and were com­mitted to the Marshalsea of the Houshold per mandat. Dom. Regis, and so returned upon habeas corpus, and it is true, that the roll shewes that they were remanded, but the remanding was onely upon advisement, and indeed the grave and upright Judges of the time were so carefull, least upon the entry of the [Page 49] remanding, any such mistake might be, as might perhaps mis­lead posterity in so great a point, that they would expresly have this word (immediate) added to the Remittitur, that so all men that should meet with the roll might see, that it was done for the present onely, and not upon any debate of the que­stion. And besides, that there is no quous (que) to it, which is usu­ally added; when the highest award upon debate or resolution of this kind is given by them.

12. Iam Sir Sa­muel Saltonstalls Case. The eighth of these is the Case of Saltonstall, it is Hill. 12. Iac. Sir. Samuel Saltonstall was committed to the Fleet, per man­datum Dom. Regis; and besides, by the Court of Chauncery, for disobeying an order of that Court, and is returned upon his habeas corpus, to be therefore detained. And it is true that a Remittitur is entred in the roll, but it is onely a remittitur pri­soner prodict'. without quous (que) secundum legem de liberatus fue­rit, and in truth it appeares on the Record, that the Court gave the Warden of the Fleet, three severall dayes at severall times, to amend his returne, and in the interim remittitur persone pred'. Certainly if the Court had thought that the returne had beene good, they would not have given so many severall dayes to have amended it, for if that Mandatum Dom. Regis had beene sufficient in the Case, why need it to have been amended.

13. Iac. Sir Sa­muel Saltonstalls Case. The ninth and last of these is, Tr. 13. Iac. Rot. 71. The Case of the same Sir Samuel Saltonstall, he is returned by the Warden of the Fleet, and in the Case before, and generally remittitur, is in the roll which proves nothing at all, that therefore the Court thought he might not by law be inlarged; and besides in both cases hee stood committed also for disobeying an order in the Chauncery.

These are all that have beene pretended to the contrary in this great point, and upon the view of them thus opened to our Lordships, it is plaine, that there is not one, not so much as one at all; that proveth any such thing, as that persons com­mitted by the command of the King, or the Lords of the Coun­sell without cause shewed, might not be enlarged, but indeed the most of them expresly prove rather the contrary.

Now my Lords, having thus gone through the Presidents of Record, that concerne the point of either side, before I come to [Page 50] the other kind of Presidents, which are the solemne resoluti­ons of Judges in former times, I shall (as I am commanded also by the House of Commons) represent unto your Lordships somewhat else; they have thought very considerable; with which they met, whilst they were in a most carefull enquiry of whatsoever concerned them in this great question.

It is my Lords a draught of an entry of a judgement in that great case lately adjudged in the Court of Kings Bench, when divers Gentlemen imprisoned per speciale mandatū Dom. Regis, were by the award and order of the Court, after solemne de­bate, sent back to prison, because it was expresly said, they could not in Justice deliver them, though they prayed to be bayled. The case is famous, and well knowne to your Lord­ships, therfore I need not further to mention it, as yet indeed there is no judgement entred upon the Roll, but there is room enough for any kind of judgement to be entred. But my Lords, there is a forme of a judgement, a most unusuall one; such a one as never was in any such case before (for indeed there was never before any Case so adjudged) and thus drawne upon by a chiefe Clerk of that Court (by direction of M. Attorney ge­nerall) as the House was informed by the Clerk, in which the reason of the judgement, and remanding of those Gent. is ex­pressed in such sort, as if it should be declared upon Record for ever, that the Lawes were, that no man could ever be inlarged from imprisonment that stood committed by such an absolute command.

The draught is onely in Sir John Heninghams Case, being one of the Gent. that was remanded, and it was made for a form for all the rest. The words of it are after the usuall entry of a Curia advisare vult for a time. That visis retur, predict. nec non diversis antiquis recordis in Curia hic remaveum consimiles casus continentibus matura (que) deliberatione, inde prius habita eo quod milla specialis causa captionis sive detentionis pred. Iohanis ex pri­mitur sed generalitur quod detentus est in prisona pred'. per spe­ciale mandatum Dom. Regis ideo pred'. Iohanes remittitur prefat. custodi Marr. Hospitii pred'. Salvo custodiend. quous (que) &c. that is, quous (que) legem deliberatus fuerit. And if that Court that is the highest for ordinary Justice, cannot deliver him secundem [Page 51] legem. What law is there I beseech you my Lords, that can be sought for in any other inferiour Court to deliver him. Now my Lords, because this draught, if it were entred in the Roll, (as it was prepared for no other purpose) would be as great a declaration, contrary to the many Acts of Parliament already cited, contrary to all Presidents of former times, and to all rea­son of Law, to the utter subversion of the highest liberty and right belonging to every free man of this Kingdome, and for that especially; also it supposes that divers ancient Records had been looked into by the Court in like cases, by which Records their judgements were directed, whereas in truth, there is not any one Record at all extant that with any colour (not so much indeed as with any colour) warrants the judgement, therefore the House of Commons thought fit also, that I should with the rest that hath beene said shew this draught also to your Lordships, I come now to the other kind of Presidents, that is, solemne resolutions of Iudges, which being not of Re­cord, remaine onely in authentique copies: but of this kinde there is but one in this case, that is the resolution of all the Iudges in the time of Queene Elizabeth. It was in the 34 of her raigne, when divers persons had beene committed by ab­solute command, and delivered by the Iustices of the one Bench or the other, whereupon it was desired, that the Iudges would declare in what cases persons committed by such command were to be inlarged, hath beene variously cited, and variously apprehended.

The House of Commons therefore desiring with all care, to informe themselves as fully of the truth of it, as possibly they might, got into their hands from a member of their House, a Book of selected cases, collected by a reverend and learned chiefe Iustice of the common place, that was one of them that gave the resolution, which is entred at large in that booke: I meane the Lord chiefe Iustice Anderson, it is written in the booke with his own hand, as the rest of the book is, and how­soever it hath beene cited, and was cited in that great judge­ment upon the habeas corpus in the Kings Bench, as if it had been, that upon such commitments the Iudges might not bayle [Page 52] the prisoners, yet it is most plaine that in the resolution itselfe, no such thing is contained, but rather expressed the contrary, I shall better represent it to your Lordships by reading it, then by opening it.

Then it was read here.

If this resolution doth resolve any thing, it doth indeed up­on the Iurie resolve fully the contrary to that which hath bin pretended, and enough for the maintenance of the ancient and sundamentall point of liberty of the person, to be regained by habeas corpus when any is imprisoned. And I the rather thought it fit now to read it to your Lordships, that it might be at large heard, because in the great judgement in the Kings Bench, though it were cited at the barre, as against this point of per­sonall liberty, as also at the Bench, yet though every thing else of Record that was used, were at large read openly, this was not read either at Barre or Bench; for indeed if it had, every hearer would easily have knowne the force of it, to have been indeed contrary to the judgement.

My Lords, having thus gone through the Charge commit­ted to me by the House of Commons, and having thus mentio­ned to your Lordships, and opened the many Presidents of Records, and that draught of the judgement in this like case, as also this resolution, I shall now (as I had leave and direction given me, lest your Lordships should be put to much trouble, and expence of time in finding or getting Copies at large of those things which I have cited,) offer also to your Lordships authentique Copies of them all, and so leave them, and what­soever else I have said; to your Lordships further considera­tion.

Mr. Seldens Presidents.
The true Copie of the Presidents of Record, in one of the Arguments made at the first conference with the Lords tou­ching the libertie of the person of every Free-man.

Inter Record. Dom. Regis Caroli in Thesauro Recept. Scaccarij sui sub custodi Dom. Thesaurar & Camerar ibidem Rema­ne [...]. vizt. Placita coram Domino Rege apud Westmonasteriū de Ter' Pasche Anno Regis Edwardi 3. post conquest Ang­liae 18. inter alia sic continetur ut sequitur.

Rot. 33. Adhuc de termino Pasche.

London, 18. Ed. 3. Bilde­stons Case cite devant, fo. 33. DOminus Rex mandavit delicto & fideli suo Roberto de Dalton Constabullar' Turris suae London vel ejus locum tenent' bre. suum in haec verba Ed­vardus Dei gracia Rex Angliae, Franciae, & Dominus Hiberniae delicto & fideli suo Roberto de Dalton Constabular' Turris suae London vel ejus locum teneum salutem maudamus quod Johannem Bildeston ca­pellan' quem vic. nostr. London ad mandatum nostrum apud pred. Turrim vobis liberavit ab eisdem recipiatis & in prisona nostra Turris London pred. Salvo Custodiar fac' quous (que) super hoc dux­erimus emandand. Teste meipso apud Turrim nostram London 30. die Marcij Anno Regni nostri Angliae 16 Regni vero nostri Francie 30. Et modo sclt. in Crast Assen. Dom. anno Rege nuns 8. coram Domino Rege apud Westminst. venit Iohannes de Wyn­wicke locum teneus pred. Constabular & adduxit coram Iustici­ar' hic in Cur. pred. Iohannem de Bildeston quem als a prefat. Vicecomit. virtute brevis pred. recepit. &c. Et dicit quod ipse a Dommo Rege huit mandat. ducend. & liber and corpus [Page 54] ipsius Iohannis de Bildeston prefat. Iusticiar. hic. &c. Et quesi­tum est de pred. Iohannem de Wynwicke si quam aliam detentio­nem prefat Iohannis de Bildeston habeat Camm. Qui dicit quod non nisi bre. pred. tantum, Et quia videtur cur. bre. pred. sufficien, non esse coram pred. Johannis de Bildeston prison. Marr' Regis hic retinen. &c. Idem de Iohannes dimittitur per manus Willielm. de Wakefield rectoris Eccill. de willingham Iohannis de Wynwicke in Com. Kanc. Johanis de Norton in Com. Norff. Nicolai de Blan­defford in Com. Middl. & Rogeri de Bromley in Com. Stafford, qui eum manuceperunt Habend. in eum Coram Domino Rege apud in Octabis Sancti Trin. ubicun (que) &c. vizt. Corpus pro corpore, &c. Ad quos Octabis Sancte Trin. Coram Domino Rege apud Westm. ven. pred. per manus pred. Et super hoc mandavit Iusticiar. suis hic quoddam bre. suum Claus. in hec verba Edwardus Dei gracia Rex Anglia, & Franciae, & dominus Hiberniae, delictis & fid li suis Willielmo Scot, & socijs suis Justiciar' ad placita coram nobis tenend. assignat saltem cum nuper mandaverimus delicto, & fideli nostro Roberto de Dalton Constabular' Turris nostre London vel ejus locum tenen. quod Iohannem de Bildeston Capellaum Capt. & decent. in prisona turris pred. hoc preceptum nostrum pro suspitione contra factionis magni Sigilli nostri cum Attachiat. & aelias Cau­sis capcon. & detentionem pred. cangen. salvo & secur' duci fac' Coram nobis in Cron Ascen. Dom, ubicun (que) tunc fuissemus in Anglia persone Marrescall. nostre coram nobis liberand. in eadem quous (que) per quendam informatorem essemus plenius informat. Custod. & tuta inde informatione pred. ulterius pred' super hoc fieri facerimus quod fore viderimus faciend. secundum legem, & consuetudinem Regni nostri Anglie nos in casu quod dictus In­formator non verum, Coram nobis ad informand nos plenius su­per premiss. volentes eidem Jahannem ea de causa Iusticiar' defer­ferr' in hac parte vobis mandamus quod si pred Informator' in Quenden. Sanct. Trin. prox. futur. vel circa non venit non super hoc plenius informat. tunc advent. ejusdem informatoris minime expe­ctat. eidem Iohanni super hoc fieri fac. Iustic. complement. prout fort videritis faciend. secundum legem & consuetudinem Regni nostri Anglie Teste meipso apud Westminst. 12. Maij Anno Regni nostri Anglie 18. Regni vero nostri Franc' 5to. Quo quidem bre. respect. fact. est proclamaco. quod siquis dictum regem super premiss. in­formare [Page 55] vel erga ipsum Iohannem profequi veluerit quod veniat Et super hoc venit pred. W. de wakefield, Nicholas de Wands­worth, Johannes Brynwyn, Iohannes de Longham, Iohannes de Norton, & Rogero de Bromly amnes de Com' Midd' & man' pred. Iohannem de Bildeston habend Cum Coram Domino Rege de die in diem us (que) ad prefat' quinden. Sanct. Trin. ubicun (que), &c. Ad quem diem Anno 18. coram Domino Rege apud Westminst. vonit pred. Iohannes de Bildeston per manus pred. & iterata facta est proclam. in forma qua superius, &c. Et nullus venit ad dictum regem informand' &c. per quod concess. est quod pred. Johannes de Bildeston erat inde sine die salva semper actione Dom. Regis si qua, &c.

De Ter' Sanct. Hillar' Anno 22. H. 8. & per cont. Rot. ejusdem Retul. 38.

London. Glouc. 22 H. 8. Parkers Case. cite ante, fo. 33. b. Iohannes Parker per Ricardum Choppin, & W. Daunsey Vic' London virtute brevis Dom. Regis de lattitat. pro pace versus ip­sum Iohannem Parker ad sect. in Johannis Bruton eis inde direct & coram rege duct. cum causa, vizt. quod idem Iohannes Parker capt. suit in Civitate pred. pro secus pacis pred. & pro suspicione felonie per ipsum apud Croweall in Com. Glocest. perpetrat per no­men Iohannis Parker de Thornbury in Com. Glocest. Corser alias dict. Iohannes Charbs de eodem Com' Surgeon ac per mandatum Dom. Regis nunciat. per Robertum Pecke gen' de Cliffords Inn qui committitur Marh' &c. & postea isteo eodem termino tradi­tur in Ballium Thomae Atkins de Thornebury pred. Weaver, & Willi. No le de eadem ville & Com. us (que) a die Pasche in unum men. Weaver ubicun (que) &c. Et quod idem Iohannes Parker citra eun­dem diem personaliter comparuit coram Iusticiar' Dom, Regis ad prox. general' Gaol de liberation' in Com. Glocest. prox. te­nend. ad subijciend. & recipiend. ea omnia, & singula quod pre­fat. Iusticiar' de eo tunc ordinari contigerint, &c. vizt. Corpus procorpore &c. Ad quem diem pred. Iohannes Parker licet ipsi 4. placit selemniter exact ad comparend. non ven. ideo caperet cum pler' Trin. ad quem diem ex Octab. Trin. postea Trin. 24. H. 8. ex nostro quinden. Pasche. Ad quem diem bre. & vic' return' quoad Aust tent. apud London die lune prox' post fest. Sancte Scholastice Anno Regis H. 8. 25. Johannes Parker, & [Page 56] W. Nole vel'fuer. prout patet per bre. Regis de Ter' Pasche Anne 25. Rs. pred.

De ter. Sanct. Mich. Anno 35. H. 8. & per cont. ejus­dem Rot. 33.

35. H. 8. Bincks, Case cite ante fo. 33. b. Iohannes Binks per Ro. Baker Ar. Seneschall. Cur. Marr. & Radum Hapton Mar' ejusdem Cur. virtute brevis Dom. Regis de Habeas Corpus ad Subiiciend. & recipiend. &c. eis inde Direct. Coram Domino Rege duct' cum causa, vizt. quod ante adventum brevis pred. Johannes Bincks captus fuit per mandatum privati Consilij Dom. Regis pro suspitione feloniae, & pro alijs causis illos movent. & duc' ad Gaol. Marr. & ibidem detent. virtute Gaol' pred. qui comittitur Marr, &c. Et imediate ex gra' cur. special' pred. Iohannes Binckes de Magna Marlow in Com. Buck Wea­ver traditur in Ball; Thomae Bignam de London Gent. & Johan­ni Woodward de Marlow, de Marlow pred. Taylor us (que) in Crast. Sanct. Martin. ubicun (que) &c. ut (que) pleg. corpus pro corpore, &c. Ad quem diem comperuit & Robertus Drury [...]r' & Iohannes Bosse gen. Domino Justiciar. Dom. Regis ad pacem in Com. Buck. virtute brevis Dom. Regis eis direct. Domino Regi certificave­runt quod nullum Indictiamentum de aliquibus felonis & transg. versus ipsum Johannem Byncks coram eis ad presons resident. Et ulterius de fama & Gestu ipsius Iohannis Byncks per Sacrum pro­borum & legalium homini Com. Buck. diligenter inquiri fecerunt, & nihil aliud preter bonum de eo coram eis est compertum. Ideo concess. est quod pred. Io. Byncks de premissis eat inde sine die deli­beratur per proclamationem & Iur. prout moris est.

De Ter. Pas. Anno 2. & 3, Ph. & Mar. Rot. 58.

2. & 3. P. & Mar Mar. O­vertons Case cite devant, fo. 33. Ricus Overton nuper de London gen. per Tho. Letgh, & Johan­nem Machell vic' London virtute brevis duorum Regis & Re­ginae de Habeas corpus ad stand. rect. &c. eis inde direct. coram Willielmo Portman mil' captal Iusticiar. &c. duct. cum causa, vizt. quod pred Ricardus Overtan 9. die Octobr. ult. preter cōmiss. fuit prison de Newgate, & ibidem in eadem persona sub custod. dict. Vic. detent. ad mandatum per nobilium duorum honorabilis consil. pred Regis & regine quim committet. Marr. &c. Et ime­diate traditur in Ball. Willielmo Overton de London gen. & Iohan­ni [Page 55] Taylor de perechia Sanct. Martinum apud Ludgate Lon­don mero. us (que) Octab. Trin. vizt. uter (que) manucaptor pred. corpus pro corpore & postea Tr. 2. El. Regine, corpus Overton & pleg. suos Octabis Michael. Ad quem diem ex mens. Pasch. Ad quem diem vic. ret. quod ad Hust. suum tent. Guild-hall Ci­vitatis London die Lune post festum Sanct. Gregor. Epi. pred. W. Overton utl' est et per bre. Pas. Anno superd.

De Te Sanct. Mich. Anno 2. & 3. P. & Mar. Rot. 16. Habet Chart. allocat. Trin. 2. & 3. Phil. & Mar.

Ricardus Overton nuper de Lond. gen. capt. Octab. Hill. pro quibusdam altis prodic. unde indictat est, Ad quem diem Pasc. ad quem diem ex Cr. Animarum.

De termino Pasche 4. & 5. P. & Mar. & per cont. ejusdem Rot. 45.

4. & 5 P & Mar. Newports case cite ante 33 Edwardus Newport gen. per Robertum Oxenbridg mil' Con­stabular. Turris pred. virtute bre. Dominor. Regis & Regine de Habeas corpus ad Subiiciend. &c. eis inde direct. ad barr. Coram Domino Rege & Regina duct. cum causa, vizt. quod ipse sibi Commiss. fuit per mandat. Concill. Domine Regine qui Commit­titur Marr. & immediate traditur in Ball. prout. &c. Et postea sine die per proclamationem virtute brevis de gestis & fama prout. &c. Rot. 17. ejusdem Anni.

De Ter. M. Anno 4. & 5. P. & Mar. per Cont. ejusdem Ra­tul. 17. Mem. quod 14. die Octobr. Anno 4. & 5. P. et. M. Edwar­dus Newport de Hanley in Com. Wigorun. Ac capt. fuit per Vx­bridge in Com. pred. pro suspitione contra factionis quarundem pec. Auri vocat French crownes per ipsum & alibi in Com. Wi­gor. fier. supposit. (& eade causa per mandatum concill' Dominor. Regis & Regine ad barr. tunc duct. fuit qui comittitur Marr. &c. Et super hoc idem Edwardus Newport traditur in Ball. Thomae Charge de Latton in Com. Essex gener. Edwarde Hales de pero­chia Sancti Olāri London gen. Johanni Baker. Clerico Ordinar. London, Iohanni Gill de perochia Sanct. Tho Apostoli London Clothworker, & Ricardo Parkes de Brownesgrave in Com Wi­gorn. yeoman us (que) Octabis Hill. ubicun (que) &c. vizt. qui libt. pleg. proced. sub pena 100 l' & pred. Edwardus Sub pena 200 l'. [Page 56] quas, &c. Ad quem diem comperint & committitur Constabular. Turris London per mandatum Consil' Dom. Regis & Regine ibid. salvo custodiend quous (que), &c. Et postea Pas. 4 & 5. P & M. tradi­tur in Ball. prout. patet per Scrivect. finium istius ter. & postea M. 5. & 6. P et M. exonerat. per cur. eo quod tam per Sacrorū 12. pro­bor. & legalium hominum de pred. Com. Midd. coram Dom. Rege, & Domina Regina hic in cur. mea parte Iurat, & onerat. quam per Sacrament. 12. probor. legal. homin. de pred. Com. Wigor. corā Ed­wardo Saunders, & Iohanne Whiddon mil. & aliis Iusticiar' di­ctor' Dom. Regis & Regine ad pacem ac diversis felonis transgress. & aliis malefact. in eodem com' perpetrat. audiend. & terminand. assignat. virtute brevis dictor. Dominor. Regis & Regine eis inde direct. in ea parte Jurat & anerat ad in querendo de gestu & fama ipsius Edwardi compert. existit quod idem Edwardus est de bonis gestu & fama ideo proclamatio est inde fact a prout moris est secund. legem & consuetudinem Reg. Anglie, &c. Concess. est quod pred. Ed­wardus eat inde sine die.

De Ter. Pas. 9. El. Rot. 35.

9 El. Laurence Case cite de­vant, fo. 34. a. Tho. Lawrence per Christopher' Drap. majorem Civitatis Lon­don Ambrosiū Nicholas, & Ricu' Lambert vic. ejusdem Civitatis virtute brevis Dom. Regine de Habeas Corpus, &c. ad subiiciend. &c. eis inde direct. & coram Domina Regina dict. cum causa, vizt. qaod 7. die Novembr. Anno regni Dom. El' nunc Regine Anglie 8. pred. Thomas Lawrence indicto brevinominat captus fuit in Ci­vitate pred. & in prisona dom. Regine, Sub custod. pred. coram vic. detent. per mandatum Consil' dom, Regine qui committitur Mar. &c. & super hoc tradit. in Ball' prout patet per Scriuect. finum isti­us ter.

De Ter, Pasch. 9. El. Rot. 68.

9. El. Constables case cite devant fo. 34 a. Robertus Constable Ar' per Franciseum Jobson mil' locū tenend. Turris London virtute brevis Dom' Regine de Habeas corpus ei inde direct & coram Domina Regina dict' cum causa vizt. quod idem Robertus Constable prefat Francisco Jobson commissus fuit per mandatum privat. Consil' Dom. Regine salvo custodiend. Qui committitur Marr. &c. Et postea isto eodem Ter. traditur in Ball. prout patet inter scriuect finum istius Ter.

Ter. Pas. Anno 20. El. & per cont. ejusdem Rot. 72.

20 El. Brow­nings Case cite devant, fo. 34 a. Johannes Browning per Owen Hopton mil' locum tenen' Turris [Page 57] Domine Regine London virtute brevis Habias Corpus ad Subii­ciend. ei inde direct, & coram dilecto & fideli Ch'ro Wray mil. capt. Justiciar. Dom. Regine ad placita coram nobis tenend. assig­nat apud Hospitium suum in Serjants Inne Fleet-street London die lune, vizt. 12. die Maij duct. cum causa vizt. quod pred. Iohannes browning Comissus fuit eidem locum tenend. per mandatum priva­ti consil' Regine salvo custodiend. &c. Qui com. Mar. &c. & postea isto eodem Ter. traditur in Ball' prout pat. per struect fi­num istius Ter.

De Ter. Sanct. Hillar. Anno 40. El. Regine & per cont. ejusdem Rot. 62.

40. El Hare­corts c [...]se cite devant, fo. 34. Edwardus Harecort per Hugonem Parlour custod. prisone Domine Regine de Gatehouse infra Civitatem Westminst. in Com. Middl. virtute brevis Domine Regine de Habeas corpus ad Subii­ciena. &c. ei inde direct, & coram Domina Regina apud Westminst. dicta cum causa, vizt. quod ante, advent brevis pred. scil. 7. die Octobr. An. Regni dom. Regine nunc. 39. corpus Edwardi Har­cort per duos privat Consil. dicte Domine regine ei comiss. fuit sal­vo & securae custodiend. certis de causis ipsos movent, & ei igno­tis qui committitur Marr. &c. Et postea isto eodem Ter. traditur in Ball. prout patet per Struct finum istius termini.

De Vacatione Hillar. Anno 43. El.

Catesbies case cite antea fo. 34. Robertus Cattesbie per Johannem Phillips Guardian' de le Fleete virtute brevis Domine Regine de Habeas Corpus ad Subii­ciend. &c. ei inde direct & coram Edwardo Fenner uno Iusticiar. Domine Regine ad placita coram ipsa Regina tenend. assignat apud Winbhester house in Burgo de Southwarke in Com. Surr. dict. cum causa, vizt. quod pred. Robertus comissus fuit prisone pred. primo die Marcij Anno 43. El. Warr. diversorum pre nobilium virorum de privato consilio Domine Regine in hec verba. To the Warden of the Fleet or his Deputie; These shall bee to will and require you, to receive at the hands of the Keeper of the Compter of Woodstreet, the person of Robert Catesbie E­squire, and him to detaine and keepe safely in that Prison un­der your charge, untill you shall have other direction to the contrary, whereof this shall be your Warrant. Et praefat Ro­bertus Commissus fuit Marr. per prefat Edwardum Fenner, & statim traditur in Ball' prout patet, &c.

Ter. Hill. Anno 43. Eliz. Regine 12. Iac. Regis.

12. Iac Beck­withs case cite dev [...]nt. fo. 34. Ricardus Beckwith gen' per Aquilam Wykes custod, persone de Gatehouse in Com. Midd. virtute libris Dom. Regis de habe as corpus ad Subiiciend. ei inde direct. & coram Domino Rege duct. cum causa vizt. quod ante advent. libris predict. scilicet 10 die Iulii. Anno Regni Dom. Jac. Regis dei gracia Anglie Franc. & Hibernie fidei defensor. &c. 11. et Scot. 47. predict. Ricardus Beck­with sibi Comissus fuit prisone predict. sub custod. sua virtute cu­jusdem Warrant sibi fact. et direct. per Georgium divina provi­dentia Cant. Archiepiscopum totius Anglie primat. et. Metropoli­tane Henric. Com. Northampton Dominum Guardiam. 5. por­tuum et un. de privato Consil. Regis Tho. Com. Suffolk Dom. Camerar' Regie Familie ac sacr' Consil. Dom. Regis Edwardum Domini Wooton gubernator Regie familie Johannem Dom. Stan­hoppe Ʋice-Camerar' Regie Familie cujus Warrant. tenor. Se­quitur in hec verba To. Aquila Wykes Keeper of the Gatehouse in Westminster or his Deputy, whereas it is thought meet that Miles Rayner, and Richard Beckwith, be restrained of the 12 liberties, and committed to the prison of the Gatehouse, These shall be to will and require you to receive the persons of the said Reynard and Beckwith into your charge, and safe keeping in that prison, there to remaine untill you shall have further order from us in that behalfe, for which this shall be your war­rant, Dated at Whitehall the 10 of July 1613. Et postea isto eodem termino.

De Ter. Mich. Anno. 14. Jac. per cont. ejusd. Rot. 14. 7.

Turris London. 14 Iac. Sir Tho. Mounsons case cite devant. fo. 34. Thomas Mounson miles per Georgium More locum teneum Turris Dom. Regis London virtute libris Dom. Regis de Habeas Corpus ad subiiciend. &c. ei inde direct. coram Domino Rege apud Westm. duct. cum Causa vizt. quod ante adventum libris pre­dict. predict. Thomas sibi Commissus fuit per warrant. advers. Dominis de privato Consilio Dom. Regis sibi direct. &c. Qui Committitur Marr. &c. Et super hoc traditur in Ball' prout patet per Scruect. fin. istius Terminum.

De Ter. Mich. 7. H 7. & per cont. ejusdem Rot. 6.

7. H. 7. Bruggs case cite de­vunt. 34. Tho. Brugg junior, nuper de Yanington in Com' Hartford gen' [Page 59] Iohanes Rawleus & te Com. & in ure de Lemster in Com. pre­dict' Yeoman, Robert us Sherman nuper de Lemster in Com. pre­dict. Walter Thomas nuper de eadem in Com. predict. Hosier. Tho. Ballard nuper de eadem in eodem Com. Smith Cadwallader ap Iohn Duy nuper de Kerry in Marchia Wallie in Com. Salop ad­jacen. gen. Reignald ap Breignham, alias Sherman, nuper de Leamster in Com. Herreford Shereman, & Thomas Turner nuper de king sland in Com. Hereford courser, sunt in custod. Marr. ad mandatum Dom. Regis, &c, ac pro aliis certis de causis pro ut pa­tet alibi de record, &c. per record. istius Ter. postea isto Termin. Dominus relaxavit mandatum suum & pro recuss. predict. com­peraverint per Attorn. &c. Et quod utlagem versus praefat. Tho­mam Brugg revocatur isto termino & predict. Iohannes Rawleus profelon. & murdo predict. traditur in Ball' prout patet alib. &c, ideo hic Marr, de ejus orbus per cur exoneratur. &c.

Ter. Hillar. 7. H. 7 & per Cont. ejusdem Rot. 18.

7. H 7. Bartho­lomewes case cite devant. 34. W. Bartholomew, Iohanes Bartholomew, Willielmus Chace, Henr. Carr, Tho. Rotesley, Tho. Street, Robertns Feldone, & Henr. Bancks sunt in custod. Marr, ad cust. mandat. Dom. Regis, &c, per recept. istius termin, ac predict. Willielmus Chace pro pace Randulpho Josselen inveniend &c. Pasche sequen, pet, postea Ter­min. sequen, dictus Dominus Rex mandatum suum predict. quo ad Willielmus Chace relaxavit per Regis Attornat. & pro pace & pro felon. & murdro traditur in Ball.

De ter. Pas. 7. H. 7. & per Cont. Rot. ejusdem 18.

7. H. 7. Beo­monds case cite devant. fo. 34. Iohannes Beomond de Weddesbury in Com' Staff. Ar' est in cu­stod. Mar' ad mandatum Dom. Regis, &c. per record. istius ter' postea scilicet Trin' 7. H. 7. se quen' predict. Iohannes Beomond de mandato predict. exoneratus existit Ideo Marr' de eo per ean­dem Cur' exoneratus exist.

De ter' M. Anno 12. H. 7. Rot. 8.

12. H 7. Yewes c [...]se cite devant. fo. 34. Thomas Yew de villa de Staff. in com' Stafford Yeoman, per Iohannem Shawe & Ricardum Haddon vir' London virtute libris Dom. Regis de habeas corpus, ad Sect. ipsius Regis eis inde direct. coram Rege duct. cum causa quod id in Thomas Yew attachiatus [Page 60] fuit per Ricardum Whittington Serjant apud Baynords Castle Ci­vitatis predict. & prisona dicti Dom. Regis infra eandem Civita­tem salvo custodiend. causa pro suspitione felone apud Coventrie in Com' Warr' per petrat. ad Suggestionem Willielmi King Inholder, Ac in super idem Tho. Yewe detinetur in prisona predict. virtute cujusdem alterins querel. versus ipsum ad Sestam Johannis Free­man Sergeant de eo quod inveniat. ei in sufficiaend. Secur. pacis in­dicta cur. coram Johanne Waiger nuper vic. Ac. ulterius idem Tho. Yewe de tent. est indicta prisona pro 23 l. debit. & 2 s. 8 d. dampnis & custag. quos Robertus Corbet Mercer. ex cognicione ipsius defend. versus eum recuperavit. in eadem Cur. coram eodem Johanne Waiger nuper vic. Ac. etiam idem Tho. detinetur in dicta prisona ad mandatum Domini Regis per Iohannem Shawe Alder­man Civitatis London, Qui Comittitur Marr. &c. postea scilicet ter' Sct. Trin. Anno 19 Regis H. 7. predict. Iohannes Freeman relaxavit secur. pacis versis eundem Tho. Yewe dictus (que) Robertus Corbet cognovit se fore satisfact. de debito & dampnis predict. Ac. Iacobus Hubberd Attornat. general. Dom. Regis relaxavit mandatum Dom. Regis Ac. pro suspicione felonie predict. traditur in Ball. Symon. Little de London Tayler & Iohanni Ashe de Lon­don Skinner us (que) Octabis Mich. ubicun (que) &c. Ad qui diem com­peruuit & Robertus Throgmorton miles unus custod. pacis predict. com' Warr' return' quod mill. Indictiament. de aliquibus felon' sive transgress. versus prefat. Tho. Yewe coram eo & Sociis ad pre­sens residet. & ulter. virtute brevis Dom. Regis sibi & Sociis suis direct. per Sacrament. 12 probor. & legal hominum de villa de Co. venutriepredict. de gestu & fama predict. Thome diligenter inqui­sicionem fecerunt, & nihil de eo preter bonum coram eo & Sociis suis est compertum sed de bono gestu, & fama ideo concess. est quod predict. Tho. eat inde sine die.

Ter. Hillar. Anno 9. H. 7 & per cont. ejusdem Roth. 14.

9. H. 7 Broch's case cite d [...]vant. fo. 34. Humfridus Broche nuper de Canterbrig in Cantabr. Scholler: per Robertum Willoughbie Dom' Brooke mil. Senescall. Hospitii Dom. Regis ac Iohannem Digbie mil. Marr' cur' Marr' Hospi­tii predict' virtute cujusdem brevis Dom. Regis de habeas corpus ad Sectam ipsius Regis ad stand. rect', &c. ad sect. partis utlag. eis inde direct. coram Rege duct. cum causa vizt. quod [Page 61] idem Humfridus Commissus fuit Gaol. Marr' Hospitij Dom. Re­gis & hac de causa & non alia idem Humfridus in prisonae pred. detinetur qui committitur Marr', &c. posteo Pas. sequen' Rex relinquit mandatum suum Capital. Iusticiar' per Tho. Lovett mil. osten' & pro utlag. pred. traditur in Ball. prout patet alibi.

De Ter' Scte. Trinit' anno 39 El. & per cont. Rotli. ejusdem 113.

39. El. Broome case cite devant. fo. 35. Lawrence Broome per Hugonem Parlour custod, prisone Do­mine Regine de le Gatehouse virtute brevis Domine Regine de ha­beas corpus ad subiiciend. &c. ei inde direct. & coram Domina Regina apud Westminst' duct. cum causa vizt. quod predict. Law­rence Broome in arcta custod. sua remanset per mandatum duo­rum de Consilio dicte Domine Regine pro certis causis eos moven' qui committitur Marr' & postea iste eodem termino traditur in Ball. pro ut patet, &c.

Per Scruect. Fin. Ter' Sct. Trin. anno 39. El. Regine.

Essex. Lawrencius Broome de parva Baddow in Com. pred. husband. traditur in B [...]ll' ad subiiciend, &c. ad mandat. privat. Consil. Do­mine Regine super habe as corpus.

Vs (que) octabis Mich. Versus Rando. Mayall de Hatfield Beverell in Com' pred' gener.

Versus Henrico Odall de eadem Gent.

Versus Will. Eekasden de Wesminst' Bricklayer.

Versus Rica. Morgan de Westminst' Labourer.

Ʋter (que) sub pena 40 l. et princeps sub pena 100 morcarum.

Pro suspitione proditionis cum Johanne Smith mil.

De Ter' Sct' Michaelis anno 4 El. & per cont: Rot. ejusdem Rot. 37.

Tho. Wenden per Hugonem Parlour gen' custod. prisone Do­mine Regine de ie Gatehouse virtute brevis Domine Regine de Habeas corpus ad Subiiciend. &c. ei inde direct' et coram Domina Regina apud Westm' duct. cum causa vizt. ad 18 die Junii Anno Regini Domine El. nunc Regine Anglie 38 corpus &c. infra no­minat. Tho. Wenden extra cur' ejusdem Domine Regine coram ipsa Domina Regina privati Consilii Dom. Regis civitatis tenor sequitur in hec verba scilicet. These are to wil & require you to [Page 62] receive into your charge and custody, the person of Iohn Brocket Knight, and him to retaine in safe keeping under your charge, untill you shall have further order for his inlargement, whose cōmitment being forsome special matter concerning the service of our Soveraigne Lord the King, you may not faile to regard this Warrant accordingly. From the Kings Pallace at White-Hall the last of March 1605. Ea (que) fuit causa detentionis pred. Johannis in prisona pred. qui committitur Marr. &c. & postea traditur in Ball' prout patet, &c.

Ter' Mic-Anno 12. Jac. Regis Rot. 119.

12. Ia. Rayners Case cite devent fo. 35. Milo Reyner per Aquilam Wykes Custod. prisone de le Gate­house, virtute brevis Dom, Regis de Habeas corpus ad Subijci­end. &c. coram Domino Rege duct. cum causa vizt. quod ante ad­vent brevis pred. scilt. 10. Iuly Anno Dom. 1613. pred. Milo Reyner comissus fuit prisona pred' & huc us (que) detent. virtute Warr' cujusdem fact, & direct. per Georgium Archiepiscopum Cant. Henr. Com. Northampton, Tho. Com. Saffolke. Willielm. Dom. Knolles, Edwardum dom, Wooton, & Edwardum dom, Stan­hope cuius Warranti tenor sequitur in hec verba. To Aquila Wykes, Keeper of the Gate-house in Westminster, or his De­putie, whereas it is thought meet that Miles Reyner and Ri­chard Beckwith, be restrained of their libertie, and committed to the prison of the Gate-house. These shall bee to will and require you, to receive the persons of Rayner & Beckwith into your charge and keeping, untill you shall have further order from us in that behalfe, for which this shall be your sufficient warrant, Dated at White-Hall the 10. of July 1613. Et haec est causa detentionis sue in prisona pred. Qui comittitur Marr' &c. Et postea isto eodemter' traditur in Ball' prout patet. &c.

Ter. Hill 5. H. 7. & per cont' ejusdem, Rot. 18.

5. H 7. Eve­rards Case cite devunt, fo. 35. Ricus Everard imper de Colchester in Com. Essex clericus, & Robertus Wight nuper de Norwico Smith per Robertum Wil­loughbie mil' Dom. de Brooke Seneschall' Hospicij Dom. Regis, & Iohannem Turbervile mil. Marr. Hospicij pred. virtute bre, de Habeas Corpus ad Sectam ipsius Regis pro quibusdam prodicio­nibus, & felon' unde indicto Com. Essex indictat sunt eis inde [Page 63] Direct. Coram Domine Rege duct cum causa, vizt. quod ijdem Ricardus Everard & Robertus Wight Commiss. fuer' custod. Marr. Marr. pred. per mandat. Dom. Regis Qui committitur Marr. &c.

Ter. Hill 8. H. 7. et percont. ejusdem, Rot. 13.

Berckss. 8. H. 7. Cherries case cite devant fo. 43. Roger Cherrie nuper de nova Windsor in Com pred. Yeoman alias dict. Rogerus Stearries nuper de eadem in eodem Com. Yeom. per lo­han. Baker Majorem villae Dom. Regis de nova Windsor in Com. pred. virtute brevis Dom. Regis de Habeas Corpus ad Sect. ipsius Regis pro quibusdam felonijs & iransgr. unde in Com. Midd. in­dictatus est' sibi inde direct. coram Domino Rege duct. cum causa, vizt. quod idem Roger' commissus fuit Gaol. Dom. Regis infra villa. pred. per mandat. Dom. Regis Qui committitur Marr. &c.

Ter. Hillar. 9. H. 7 & per Cont. ejusdem Rot. 14.

9. H. 7. Burtons Case cite de­vant, fo. 44. Surr.ss. Christopherus Burton nuper de Rochester in Com' Cancij Hack­neyman per Robertum Willoughbie Dom. Brooke mil' Seneschall' Hospitij Dom. Rogis, & Iohannem Digbie mil' Marr. cur. Mar. Hospitij pred. per mandatum Dom. Regis. Et hac est causa & non alia. Qui committitur Marr. &c.

Ter. Pas Anno 19. H. 7. & per Cont. ejusdem. Rot. 23.

9 H. 7. Vrms­wicks Case cite devant, fo. 44. Georgius Ʋrmeswicke de London Mereer, per Oliverum Wood locum tenen prisonae Dom. Regis de le Fleet virtute brevis Dom. Regis de conservand. diem, &c. eiinde direct. coram rege duct. cum causa vizt. quod idem Georgius 13. Maij Anno 19. Regis com­missus fuit prisonae del Fleet per mandatum ipsius Dom. Regis sal­vocustodiend. Sub pena 40. l, qui committitur Marr. &c.

Ter. Trin. Anno 8. H. 8 per cont. ejusdem, Rot. 23.

8. H. 8. Pages case cite devant, fo. 45. Edwardus Page nuper de London Gent. per Georgium Com. Sa­lopiae Seneschall. Hospitij Dom. Regis, & Henericum Shamburne, Marr. cur. Mar. Hospitij pred. virtute brevis Dom. Regis de Ha­beas corpus ad Sect. ipsius Regis ad conservand, diem. &c. eis inde direct. & coram Rege duct. cum causa, vizt. quod idem Edwardus Captus & detentus in prisona Regis Marr. pred. per mandatum Dom. Regis ihidem salvo Custodiend. &c. Qui committitur Marr. Hospitij Dom. Regic.

Ter. Mich. Anno 8. Jac. Et per cont. ejusdem Rot. 99.

8 Iac. Caesars case cite devant fo. 46. Tho. Casar per Tho. Vavisour mil' Marr. Hospitij Dom. Regis & Marr. Marr. ejusdem Hospitij Dom. Regis, virtute brevis Domini Regis de Habeas corpus ad subijciend. &c. ci inde direct, & coram Rege apud Westminst. duct. cum causa, vizt. quod ante adventum brevis pred. scil. 18. Julij Anno Regni dicti Dom. Re­gis nunc Angliae, &c. 7. Tho. Caesar in brevi pred. nominat. Captus fuit apud White-Hall in Com' Middl. per speciale mandatum Dom. Regis ac per eundem Regem ad tunc & ibidem Commiss. fuit prison. Marr. ibidem salvo Custodiend. quous (que) &c. Et ea fuit causa captionis & detentionis ejusdem Tho. Caesar Qui comitti­tur prisonae Marr. pred.

Ter. Sancti Mich. 8. Jac Regis.

Nisi pred. Seneschall & Marr. Hospitii Dom. Regis sufficien­ter return' bre. de Habeas Corpus Tho. Caesar die Mercur. per quinden. Sanct. Martini defendens exonerabitur.

Ter Hill. 12. Jac. Rot. 153.

Marr' Hospitii Regis 12. Iac E­mersons case cite devant. fo. 46. Iacobus Demaistres, Edwardus Emerson, Georgius Brookeshall & W. Steephens per Tho. Vavisour mil' Marr. Marr. Hospitij Regis virtute bre. Dom. Regis de Habeas corpus ad subijciend. &c. ei in­de direct. coram domino Rege apud Wostminst. duct. cum causa, vizt. quod ante adventum brevis pred. scilt. 22. Ianuar. Anno Re­gis Iacobi Angliae, &c. 12. & Scot. 48. pred. Iacobus Demaistres, Edwardus Emerson, Gregorius Brookeshall, & W. Steephens in brovi. huic Schedul' annex, nominat, Commiss. fuer' Gaol' Marr. Hospitij Dom. Regis pro causis ipsum Regem & servic' suum tan­gen. & concernen. Et hac est causa Captionis pred. Iacobi, Ed­wardi, Georgij & Willielmi, & postea immediate remittitur prafat. Marr. Hospitij pred.

Ter. Hill. 12. Jac. Regis.

Prison de le Fleet Sir Samu­el Saltonstalls case cite devant fo. 49. Samuel Saltonstall miles per Johannem Wilkinson Ar. guard. de le Fleete virtute brevis Dom. Regis de Habeas Corpus ad sub­ijciend. &c. ei inde direct. & coram Domino Rege apud West­minst. duct. cum causa vizt. quod pred, Samuel commiss. fuit pri­sonae pred. 11. Martij 1608. per Warrant. a Dominis de privato consilio Dom. Regis & quod detentus suit etiam idem Samuel in prisona pred virtute cujusdem ordinis in cur. Canc' Dom. Regis fact. cujus ordinis tenor patet per Rot. Record. istius Termini ad [Page 65] quem diem pred. Samuel remittitur prisonae pred. Et secundus dies prox. ter' datus est guardian. prisonae pred. ad emendand. re­turn. suum sufficien. super pred. bre. de Habeas Corpus, Et quod tunc intulerit hic in cur. corpus pred. Samuel Saltonstall mil'. Ad quam quidem diem prefat. Guardian. prisonae pred. super pred. bre. de Habeas Corpus retorn. quod pred. Samuel cōmissus fuit pri­sonae pred. 11. die Martii 1608 per Warrant. a Dom. de privat' Concil. dicti Dom. Regis apud Whitehal tunc Seden. & quod postea 11. die Febr. 1610. commiss. fuit extra cur. Canc. Dom. Regis apud Westminst. pro contemptu suo eidem cur. illat. Et quod detent. fuit etiam idem Samuel in prisona pred. per mandat. Dom. Cancellar' Anglia super quo pred. Samuel' iterum remittitur prisonae pred. & ulterius dies dat' est prefat. Gardian. ad emendend. return. suum super Habeas corpus ver. deftom prout stare voluit us (que) diem Iovis prox' Mens. Pasch. Et tunc ad Habend. Corpus, &c. Ad quam diem prefat. guardian. intulit corpus hic in cur. & retorn' super Habeas corpus quod pred. Samuel' Commiss. fuit prisonae pred. 11. die Martii 1608. virtute cujusdem Warranti a Dominis de privato Concil' Dom. Regis tunc seden. apud White-Hall, Et quod etiam idem Sam. Commiss. fuit. prisonae 11. Febr. Anno Regis Jac. 8. per cur. Canc. Dom. Regis apud Westminst. tunc existen. pro quadam contempt. per eundem Samuel eidem cur. illat. & perpetrat. proinde salvo custodiend. qui remittitur prisonae pred.

Ter. Tr. Anno 13. Jac. & per cont. ejusdem Rot. 17.

13 Ia. Sir Sa­muel Saltonstals case cite devant, fo. 49. Samuel Saltonstall miles per Iohannem Wilkinson Guardian. prisonae de le Fleet virtute brevis Dom. Regis de Habeas Corpus ad Subiiciend. et recipiend. &c. eiinde direct. & corā Domino Rege apud Westminst. duct. cū causa vizt. quod pred. Samuel. Saltonstall commissus fuit prisonae pred. 12. die Martii Anno Regis Iacob. Angliae, &c. sexto virtute cujusdam Warrant. a dominis de privat. Consilio Dom Regis tunc seden. apud White-Hall commissus fuit etiamidem Samuel Saltonstall miles prisonae pred. 12. die Febr. An­no 1610. & Anno Reg. Iac. Angliae, &c. 8. per considerat. cur. Cancell' dicti Dom. Regis apud Westminst. pro contempt. eidem cur. ad tunc per pred. Samuel illat, ibidem proinde Salvo custodi­end. Et haec sunt causae captionis & detentionis pred. Sam Salton­stall mil. in prisona pred. cujus tamen corpus ad diem & locum infra content. parat. habeo prout mihi precipitur.

Finis d' les Presidents.

Sir Edward Cookes Ar­gument.
Iovis 3. Apr. 4. Caroli Regis.

1. REsolved upon the question, that no Free-man ought to be deteined or kept in prison, or other wise restrained by the command of the King, or the Privie Counsell, or any other, unlesse some cause of the commitment detey­ner or restraint bee expressed, for which by Law he ought to be committed, deteyned or restrained.

2. That the Writ of Habeas Corpus may not bee denied, but ought to be granted to every man that is committed or deteyned in prison, or otherwise restrained, though it be by the command of the King, the Privie Counsell or any other, hee praying the same.

That if a Free-man be committed or deteyned in prison or otherwise restrained by the Command of the King, the Privie Counsell, or any other, no cause of such commitment, de­teyner or restraint being expressed, for which by Law he ought to be committed, deteyned or restrained, and the same be re­turned upon a Habeas Corpus granted for the said party, then he ought to be delivered or bayled. All these without one nega­tive, that these Acts of Parliament, and these Judiciall presi­dents in affirmance thereof (recited by my Colleagues) are but declarations of the fundamentall lawes of this Kingdome I shall prove by manifest and legall reasons which are the grounds and mothers of all lawes,

The first generall reason.

1. The first generall reason is drawne are ipsa, from impri­sonment, ex visceribus causae, be it those or other imprisonments, which is divided into three parts.

1. First, no man can be imprisoned at the will and pleasure of any but he that is bond, and a villaine, for that imprisonment at will is tailes luy haut, & base, are propria quarto modo to vil­laines.

2. But if Free-men of England might be imprisoned at the wil and pleasure of the King by his commandment, then were they in worse case then bond-men & villaines for the lord of a vil­lain cannot command another to imprison his villain without [Page 67] cause, as of disobedience, or refusing to serve, as it is agreed in our Bookes.

3. Imprisonment is accounted in law a civil death, perdit do­mum, familiam, vicinos, patriam, his house, is family, his wife, his children his neighbours, his Country, and to live among wretched wicked men.

39 H. 6. fo. 50. & 41. Ed. 3. 9. If a man be threatned to be killed, he may avoid a feoffment of lands, gift of goods, &c. So it is, if he be threatned to be im­prisoned, he shall doe the like, for that is a civill death.

The second generall reason.

Bracton 105. fo. 15. The second generall reason is a Minore ad majus; paena corpo­ralis est majus qualibet pecuniaria, but the King himselfe can­not impose a fine upon any man, but it must be done juditially by his Judges, per Iusticiar' in Cur' non per Regem in Camera, 2. R. 3. 11. and so it hath beene resolved by all the Judges of England.

The third generall reason.

The third generall reason is drawne from the number and diversity of remedies, which the law giveth against imprison­ment, vizt. brevia de Homine replegiande de odio & Atia de habeas corpus & bre. de manucaptiene.

The two former of these are antiquated, but the writ de odio & Atia is revived, for that was given by the Sat. of Magna Car' cap. 26. and therefore though it were repealed by the Stat. of 28. Ed. 3 ca 9. yet it is revived by the Stat. of 43. Ed. 3. cap. 1. by which it is provided, that all Statutes made against Magna Charta are void, now the law would never have given so many remedies, if the Freemen of England might have beene imprisoned at Free will and pleasure.

The fourth generall reason.

The fourth generall reason is drawne from the extent & uni­versality of the pretended power to imprison, for it should not extend onely to the Commons of the Realme and their poste­rity but to the Nobility and their Honourable Progenies, to the Bishops and Clergie of the Realme and their Successours; to all persons of what condition, or sex, or age so ever: to all Judges, Officers, &c. whose attendance are necessary without exception of any person.

The fifth generall reason.

The fifth generall reason is drawne from the indefinitenesse of time, the pretended power being limited to no time, it may be perpetuall during life.

The sixth generall reason.

The sixth generall reason is drawne a dedecore from the losse and dishonour of the English nation, in two respects. 1. For their valour and power so famous through the whole world. 2. For their industry; for who will endeavour to imploy him­selfe in any profession, either of Warre, liberall Science, or Merchandize, if he be but tennant at will of his liberty, and no tennant at will, will support or improve any thing, because he hath no certaine estate; and thus it should be both dedecus and damnum to the English nation, and it should be no honour to the King to be King of a slaves.

The seventh generall reason.

The seventh generall reason is drawne ab utili et inutili, for that appeareth by the Stat. of 36 Ed. 3. that the execution of the Statute of Magna Charta 5. Ed. 3. 25. Ed. 3. & 28. Ed. 3: are adjudged in Parliament to be for the common profit of the King, and of his people, and therefore the pretended power being against the profit of the King, and of his people, can be no part of his prerogative.

The eighth generall reason.

The eighth generall reason is drawne a tuto, for it is safe for the King to expresse the Cause of the Commitment, and dan­gerous for him to omit it, for if any be committed without ex­pressing of the Cause, though hee escape, albeit the truth be, it were for treason or felony, yet the escape is neither felony nor treason; but if the cause be expressed to be for suspition of trea­son or felony, then if he escape, albeit he be innocent, it is trea­on or felony.

The last generall reason.

The last generall reason is drawne from authorities.

16. H. 6. Means de fait 182. by the whole Court, the King in his presence cannot command one to be arrested, but an action of false imprisonment lies against him that arresteth.

22. H. 7. 4. Newton. 1 H. 7. 4. The opinion of Markham chiefe Justice to Ed. 4. And the reason because the party hath [Page 69] no remedy. Fortescue cap. 8. Proprio [...]re nullus regum usus est, &c. to commit any man.

4. El. Plo. Com. 236. The Common Law hath so admeasu­red the Kings Prerogative, as he cannot prejudice any man in his inheritance, and the greatest inheritance a man hath, is the liberty of his person, for all others are accessary to it. Cicere. Major haeredidas venit unicui (que) nostrum a legibus quam a paren­tibus, 25. Ed. 1. cap. 2. All judgements given against Magna Charta are void.

Vpon conference with the Lords, these objections were made by the Kings Attorney.

The first objection.

1 That the resolutions of the House of Commons were in­compatible with a Monarch that must governe by rule of State.

Rns. Whereunto it was answered, Quod nihil tam propr' est im­perii quam legibus vivere. And againe, Attribuat Rex legi quod lex attribuat ei vizt. dominationem & imperium quia sine lege non potest esse Rex. It can be no prejudice to the King by rea­son of matter of State: for if it be for suspition of treason, mis­prision of treason, or felony, it may be by generall words ex­pressed, vizt. pro suspitione proditionis, &c. If it be for any con­tempt, or any other thing, the particular cause must be shewed.

The second objection.

2 To blinde those that are committed, one cause must be pre­tended, and another intended, especially when it toucheth matter of State.

Rns. Whereunto it was answered, that all dissimulation, especi­ally in a cause of Justice, was to be avoided, and soundnesse of truth to take place. And therefore David that was both a King and a Prophet, prayed unto Almighty God against dissi­mulation, in these words, Lord send me a sound heart in thy Statutes, that I be not ashamed: where found in the originall signifieth upright without dissimulation, and shame followes dissimulation when the truth is knowne.

The third objection.

3 If a Rebell be attainted in Ireland, and his children for [Page 70] safety, and matter of State be kept in the Tower, what shall be returned upon the habeat corpus?

Rns. Whereunto it was answered, that their imprisonment might be justified, if they could not find good sureties for their good behaviour. 2. It was charity to finde them meat, drink, and cloath, that by the Attainder of their Father had nothing.

The fourth objection.

4 Though his Majestie expresseth no cause, yet it must be in­tended there was a just cause.

Rns.

  • Bracton
  • Fleta

Answere De non apparentibus & non existentibus eadem ratio.

The fifth objection.

25. Ed. 3. cap. 13 Stat. 4. H. 7. 6. 5 The King in stead of gold or silver, may make money cur­rant of any base mettall. 2. He may make warres at his plea­sure. 3. Hee may pardon whom he will. 4. Hee may make Denizens as many as he will, and these were said to be greater prerogatives then these in question.

Rns. Answer to the first. It was denied that the King might make money Currant of base money, but it ought to be of gold or silver. 2. It was answered admitting that the King might do it, his losse and charge was more then of his Subjects, both in the Case of money, and in the Case of warre; the pardon was pri­vate, out of grace, and no man had danger or losse by it; and so the making of Denizens the King was onely the looser, vizt. where hee had double Customes to have single. 3. It was a non sequitur, the King may doe these things, ergo hee may im­prison at will.

Your Lordships are now advised by those that cannot be daunted for feare, nor misled by affected reward, or hope of preferment, that is of the dead.

  • 1 By ancient and many Acts of Parliament in the point be­sides Magna Charta, which hath beene 30 times confirmed, and commanded to be put in execution, whereto the Kings of England have 30 times given their royall assent.
  • 2 Judiciall Presidents of grave and reverend Judges in termi­nis terminantibus, that long since are departed this world.
  • 3 And lastly, per vividas rationes, manifest and apparent rea­sons.

Wee of the House of Commons have, upon great Studie and serious consideration, made a great manifesto unanimously nullo contradicente, concerning this great liberty of the Sub­ject, and have vindicated and recovered the body of this fun­damentall liberty, both of your Lordships, and of our selves, from shadowes, which sometimes of the day are long, some­times short, and sometimes long againe, And therefore no Judges are to be led by them: your Lordships are involved in the same danger, and therefore ex congruo & condigno, Wee desired a conference, to the end your Lordships may make the like declaration, as we have done, Commune periculum requi­reth commune auxilium, and thereupon take such further course as may secure both your Lordships, and us, and all your and our posterities in enjoying our ancient undoubted and fundamentall liberties.

FINIS.

The substance of the obiections made by M. Attorney Generall, before a Committee of both Houses, to the Argument that was made by the House of Commons, at the first conference with the Lords, out of Presidents of Record, and resolutions of the ludges in former times, touching the liberty of the person of every Freeman, and the answers and replies then presently made by the House of Commons to those objections.
M. Attor­neyes objecti­ons.

AFter the first conference which was desired by the Lords, and had by a Committee of both Houses in the painted Chamber, touch­ing the reasons, lawes, acts of Parliament, and Presidents concerning the liberty of the person of every Freeman, M. Attorney Generall being heard before a Committee of both Houses, as it was assented by the House of Commons that hee might be, before they went up to the conference, after some preamble made, wherein hee declared the answering of all reasons of Law, and Acts of Parliament, came onely to the Presidents used in the Arguments before delivered, and so en­devoured to weaken the strength of them that had bin brought on the behalfe of the Subject, to shew that some were directly contrary to the Law comprehended in the resolutions of the House of Commons touching the bayling of prisoners returned upon the Writ of Habeas Corpus to be committed by the spe­ciall command of the King, or of the Counsell, without any cause shewed for which they ought by Law to be committed. [Page 73] And the course that was taken (which it pleased the Commit­tee of both Houses to allow of) was that M. Attorney should make his objections to every particular President, and that the Gent. appointed and trusted by the House of Commons by se­verall replies should satisfie the Lords touching the severall objections made by him against or upon every particular, as the order of the Presidents should lead them. He began with the first 12 Presidents that were used by the House of Commons, at the conference desired by them, to prove that prisoners re­turned to stand so committed were delivered by bayle by the Court of Kings Bench.

Objection al Bildestons Case cite devant. fo. 35. & 55. The first was, that of Bildestons Case in 18 Ed. 3. Rot. 33. To this he objected, 1. That in thereturne of him into the Court it did not appeare that this Bildeston was committed by the Kings Command. And secondly, that in the Record it did appeare also that he had beene committed for suspition of counterfet­ting of the great Seal, and so by consequence was bayleable in the Law, in regard there appeared a cause why hee was com­mitted, in which case it was granted by him (as indeed it is plaine and agreed of all hands) that the prisoner is bayleable, though committed by the Command of the King. And he said that this part of Record by which it appeared hee had beene committed for this suspition of treason was not observed to the Lords in their Argument before used. And he shewed also to the Lords, that there were three severall kinds of Records, by which the full truth of every award or bayling upon a ha­beat corpus is knowne. First, by the remembrance roll where­in the award is given. Secondly, the file of the Writ, and the returne. Thirdly, The Scruet Roll or Scruet Finn', wherein the Bayle is entred, and that onely the remembrance roll of this case was to be found, and that if the other two of it were extant, he doubted not but that it would appeare also, that up­on the returne it selfe the cause of the commitment had beene expressed, and so he concluded that this proved not for the re­solution of the House of Commons touching the matter of Baile, where a prisoner was committed by the Kings command without cause shewed.

Rns al dit obj. To these objections the reply was first, that it was plaine, [Page 74] that Bildeston was committed by the Kings expresse command, for so are the very words of the Writ to the Constable of the Tower, quod cum teneri & custodiri facias, &c. then which no­thing can more fully expresse a commitment by the Kings command. Secondly, how ever it be true, that in the latter part of the Record it doe appeare, that Bildeston had beene committed for a suspition of treason, Yet if the time of the proceeding expressed in the Record were observed, it would be plaine, that the objection was of no force: for this one ground both of this one case, and all the rest, is infal­lible, and never to be doubted of in the Law, Regula. That the Ju­stices of every Court adjudge of the force and strength of a returne out of the body of it selfe onely, and according as therein appeares to them. Now in Easter Terme 18 Ed. 3. he was returned and brought before them onely as committed by the Writ, wherein No cause is expressed, and the Lievte­nant of the Constable of the Tower that brought him into the Court, said, that he had no other warrant to detaine him nisi bre. predict. wherein there was no mention of any Cause, And the Court thereupon adjudged, that bre. predict. or that speci­all command was not sufficient cause to detaine him in prison, and thereupon he is by judgement of the Court in Easter Term let to mainprise, but that part of the Record, wherein it ap­peares, that he had indeed beene committed for suspition of treason, is of Trinity Terme following, when the King, after letting him to mainprise, because no man, prosecuted him. And at that time it appeares, but not before, he had been in for su­spition of treason, so that he was returned to be committed by the Kings speciall command onely, without any cause shewed in Easter Terme, and then by judgement of the Court let to mainprise, which to this purpose is but the same with bayle, though otherwise it differ. And in the Terme following, up­on another occasion, the Court knew that he was committed for suspition of treason, which hath no relation at all to the letting him to mainprise, nor to the judgement of the Court then given, when they did not, nor could not possibly know any cause for which the King had committed him, and it was said in the behalfe of the House of Commons, that they had [Page 75] not indeed in their Argument expressely used the latter part of the Record of Bildestons Case, because it being only of Trinitie terme following, it could not concerne the reasons of an a­ward given by the court in Easter terme next before, yet not­withstanding that they had most faithfully at the time of their Argument delivered unto the Lords (as indeed they had) a perfect Copie at large of the whole record of this Case, as they had also done of all other Presidents whatsoever cited by them, insomuch as intruth there was not one president of Re­cord of either side, the Copie whereof they had not delivered in likewise, nor did Master Attorney mention any one besides those that were so delivered in by them. And as touching the three kinds of Records, the remembrance Rolle, the returne and the file of the Writ, and the Scruet, it was answered by the Gent. imployed by the house of Commons, that it was true the Scruet and returne of this case of Bildestons was not to be found, but that did not lessen the weight of the president, because alwayes in the award or Judgement drawne up in the remembrance Rolle, the cause whatsoever it be, when any, is shewed, appeares clearely by the constant Entrees of the Court of Kings Bench; So as if any cause had appeared unto the Court it must have appeared plainly in that part of the Roll which belongs to Easter terme wherein the Judgement was given, but the returne of the commitment by the Kings command without cause shewed, and the Judgement of the Court, that the prisoner was to be let to mainprise appeare therein only. And so, notwithstanding any objection made by Master Attor­ney, the Cause was maintained to be cleare proofe among ma­ny others touching that resolution of the House of Commons.

Objections Hors de Parkers case 22. H 8 cite an­te, fo 35 et. 55. To the second of those 12. which is Parkers Case in 22. H. 8 rot. 37. his Objections were two, first, that this is true that he was returned that he was committed per mandatum Dom. Re­gis, but that it appeared that this command was certified to the Sherifes of London by one Robert Pecke, and that in regard the command came no otherwise, the returne was held in­sufficient, and therefore he was bayled. Secondly, that it ap­peares also in the record, that he was committed pro suspitione feloniae ac per mandatum Dom Regis; So that in regard the ex­pression [Page 76] of the cause of his commitment suspition of felonie precedes the command of the King, therefore it must be inten­ded, that the Court tooke the cause why the King committed him to be of lesse moment then felonie, and therefore bayled him; For he objected that even the house of Commons them­selves in some Arguments used by them touching the interpre­tation of the Statute of Westminst. 1. cap. 15. about this point had affirmed, that in enumeration of particulars those of grea­test nature were first mentioned, and that it was supposed that such as followed were of lesse nature or moment.

Rns al dit ob­jection. But the reply was to the first objection, that the addition of certifying of the Kings command by Robert Pecke altered not the case, first, because the Sherifes in their returnes tooke notice of the command, as what they were assured of, and then how­ever it came to them, it was of equall force as if it had beene mentioned without reference to Pecke. Secondly, that as di­vers Pattents passe the great Seale by Writ of privie Seale, and are subscribed per bre. de privato Sigillo, so divers per ipsum Re­gem & are so subscribed, and oftentimes in the Rolles of former times to the words per ipsum Regem are added Nuntians A. B. So that the Kings Command generall, and the Kings command related and certified by such a man, is to this purpose of like nature. Thirdly, in the late great Case of Habeas Corpus, where the returne of the commitment was per speciale man­datum Dom. Regis mihi significat. per Dominos de privato consi­lio, and the Court of the Kings Bench did agree that it was the same, and of the like force, as if mihi significat. &c. had not followed, and that these words were void, according where­unto here also per mandat. Dom. Regis nunciat. per Robertū Pecke had bin wholly omitted and void likewise; in truth in that late Case this case of Parker was cited both at the Bar, and at the Bench, and at the Bench it was interpreted by the Judges no otherwise then if it had beene only per mandatum Dom. Regis in this place of it. But the objection there was made of ano­ther kind, as was delivered in the first Argument made out of Presidents in behalfe of the house of Commons. Then for the second objection touching the course of enumeration of the causes in the returne, it was said, that however in some acts [Page 77] of Parliament, and else-where in the solemne expression used in the Law, things of greater nature precede, and the lesse fol­low, Yet in this case the contrary was most plaine, for in the return there appeares, that there were three causes of deteyning the prisoner, surety of the peace, suspition of felonie, and the Kings command, and suretie of the peace is first mentioned, which is plainly lesse then felonie, therefore it is as plaine, that (if any force of Argument be here to be taken from this enu­meration) the contrary to that which Master Attorney inferred is to be concluded, that is, that as felonie is a greater cause then Suretie of the Peace, so the matter whereupon the Kings command was grounded, was greater then the felonie. But in truth this kind of Argument holds neither way here. And whatsoever the cause were why the King committed him, it was impossible for the Court to know it, And might also have been of very high moment in matter of State, and yet of farre lesse nature then felonie, all which shewes that this President hath its full force also, according as it was first used in Argument by the house of Commons.

35. H. 8. Bincks case cite ante 36. & 56 ob­jections hors de ceo. To the third of these, which is Bincks Case in 35. H. 8. Rot. 35. the Objection was, that there was cause expressed, pro su­spitione feloniae, and though pro alijs causis illos moventibus were added in the returne, yet because in the course of enumeration the generall name of alia comming after particulars includes things of lesse nature then the particular doth, therefore in the Case suspition of felonie being the first, the other causes ge­nerally mentioned must be intended of lesse nature for which the prisoner was bay leable for the greater which was suspiti­on of felonie.

Rns al dit ob­iection. Hereunto it was replied that the Argument of enumerati­on on in these cases is of no moment, and is next before shewed, and that although it were of any moment, yet the aliae causae, though lesse then felonie, might be of very great consequence in matter of State, which is pretended usually upon generall returnes of command without cause shewed. And it is most plaine that the Court could not possibly know the reasons why the prisoner here was committed, and yet they bay led him without looking further after any unknowne thing under that [Page 78] tytle of matter of State, which might as well have been in this Case, as in any other whatsoever.

2. & 3. P. & M. Overtons case, Et 4. et. 5. P. & M. Newports case cite ante, fo. 36. et 37. Et les objections la rnde le Record de ceux, vide an­te fo. 37. et. 38. To the fourth of these, which is Overtons Case en Pas. 2. & 3. P. et Mar. rot. 58. and to the fifth, which is Newports Case, Pas. 4. & 5. P. & Mar. rot. 45. onely these observations were said over againe by Master Attorney, which were moved in the Argument made out of the Presidents in the behalfe of the house of Commons at the first conference, and in the same Ar­gument were fully and cleerely satisfied, as they were now againe in like manner.

9. El. Lawrences case, et eodem Anno Constables case cite devant fo. 38. et 56. To the sixth, which is Lawrences Case, in 9. El. rot. 35. and to the seventh, which is Constables Case, Pas. 9. El. Rot. 68. the same objections were likewise said over againe by Master At­torney that are moved and clearly and fully answered in the Argument made at the last Conference out of Presidents in the behalfe of the house of Commons. The force of the Objecti­on being only that it appeared in the margin of the Roll, that the word Pardon was written, but it is plaine that the word there hath no reference at all to the reason why they are bay­led, nor could have reference to the cause, why they were committed, is utterly unknowne, and was not shewed.

20. El. Brown­ings case cite devant fo. 38. et 56. To the eighth, which is Brownings Case, in Pas. 20. El. Rot. 72. it was said by Master Attomey, that he was bayled by a Letter from the Lords of the Counsell directed to the Judges of the Court, but being asked for that Letter, or any testimony of it, he could produce none at all, but said he thought the testi­mony of it was burnt amongst many other things of the Coun­sell table at the burning of the Banquetting house.

40. El. Hare­courts case cite devant, fo 39. To the ninth, being Harecourts Case. Pas. 40. El' Rot. 620. the selfe-same objection was made by him, but no warrant was shewed to maintaine his objection.

43. El. cite de­vant, fo. 39. Catesbies case. Object. a ceo. To the tenth, which is Catesbies Case in vacatione Hill. 43. El. he said that it was by direction of a Privie Seale from the Queene, and to that purpose he shewed the Privie Seale of 43. El. which is at Charge among the transcript of the Re­cords concerning bayles taken in Cases when the King or the Lords of the Counsell assented.

Rns a ceo. But it was replied, that the Privie Scale was made only for [Page 79] some particular Gentleman mentioned in it and none other, as indeed appeares in it. And then he said, that it was likely that Catesby here had a privie Seale in this behalfe, because those other had so, which was all the force of his objection.

12. Iac. Back­withs case cite devant. fo. 39. & 58. Objection a ceo. To the 11 which is Beckwiths Case, in Hill. 12. Iac. Rot. 183. He said the Lords of the Counsell sent a letter to the Court of Kings Bench to bayle him, and indeed hee produced a letter, which could not by any meanes be found when the Argu­ments were made at the first conference. And this Letter, and a Copie of an obscure report made by a young Student, that was brought to another purpose (as is hereafter shewed) were the onely things written of any kinde that M. Attorney pro­duced, besides the particular shewed by the House of Com­mons at the first conference.

Rns al obje­ctions. To this it was replied, that the letter was of no moment, be­ing onely a direction to the chiefe Justice, and no matter of re­cord, nor any way concernign the rest of the Judges. And be­sides, the prisoner was bayleable by the Law, or not bayle­able; if bayleable by the Law, then was he to be bayled with­out any such Letter; if not bayleable by the Law, then plainly the Judges could not have bayled him upon the Letter with­out breach of their oathes, which is, that they are to doe Ju­stice according to the Law, without having respect to any command whatsoever; so that the Letter in this Case, or the like in any other case, is for point of Law to no purpose, nor hath any weight at all by way of objection, against what the re­cord and judgement of the Court shewes us.

14 Ia. Sir Tho. Mounsons case devant. fo. 40. & 58. The twelfth and last of these which is Sir Tho. Mounsons Case, in 14. Jac. Rot. 147. the same objection onely was said over by him, which was moved and clearely answered in the Argument at the first conference, and that one ground which is infallible, that the judgement upon a returne is to be made onely out of what appeares in the body of the returne it selfe, was againe insisted upon in this case, as it was also in most of the rest. And indeed that alone (which is more cleare Law) fully satisfies almost all kinde of objections that have beene made to any of these Presidents, which thus righty understood, are ma­ny ample testimonies of the judgement of the Court of Kings [Page 80] Bench touching this great point, in the severall ages & raignes of the severall Princes under which they fall.

After his objections to these twelve, and the replies and sa­tisfaction given to these objections, hee came next to those wherein the assent of the King or privie Counsell appeares to have beene upon the inlargement, but hee made not to any of these any other kind of objection whatsoever, then such as are moved and clearely answered (as they were now againe) in the Argument made at the first conference. And for as much as it concernes Letters of Assent or direction, the same was here said againe by way of reply to him, as is before said touching the Letter in Beckworths Case, hoc supra.

After these were disputed, hee came to urge the eight Presi­dents which seemed to make for the other side, against the re­solution of the house of Cōmons, which eight were used, and copies of them also given unto the Lords at the first cōference.

Of these eight, the first foure were urged by him, as being of one kinde, the difference of them being onely said the same, onely in the names of prisons, and of persons, they were but the selfe same.

Vide touts ceux cite devant fo. 43 44. & 62. 63 objections hors de eux. The force of these foure being objected thus, that Richard Everard for the purpose in the first of them, which is 5. H. 7. Rot. 18. Roger Cherry in the second of them, which is 8. H. 7. Rot. 12. Christopher Burton in the third, which is 9 H. 7. Rot. 14. and George Vrmsewick in the fourth of them, which is 19 [...]. 7. Rot. 13. were returned into the Kings Bench by severall Writs of Habeas corpus, to have been committed, and detained in the prisons whence they came, per mandatum Dom. Regis, and that upon the returne they were committed to the Marshalsea of the Kings Bench, and that howsoever it had beene objected against those Presidents, that this kind of commitment was by the course of that Court alwayes done before the Bayling of the prisoner, yet that it did not appeare that they were bayled.

Rns al obje­ctions hors des dits presidents. The reply to these objections was, that the constant course of the Court of Kings Bench was, whosoever came in upon a hab. corp. or otherwise upon any Writ into that Court, cannot be bayled, until he be first committed to the Mar. of that Court, & that thence it was that all those 4 were committed to the [Page 81] Marshal, as appears by the entry, Marr'. &c. which is the usual entry in such a case, and that the Clerks of that Court acknow­ledge this course & entry to be most constantiso that all the in­ference that can be made out of these 4 is, but that 4 prisoners being brought from foure severall prisons by hab. corp. into the Kings Bench, and returned to stand committed per mandatum Dom. Regis, were so farre from being to be remanded by the Law, that in all these foure cases, they were first taken from their severall prisons wherein they had beene detained by such a generall command, which could not have beene, if they had not beene adjudged in every of the Cases to have beene bayleable by the Court, and that this Commitment of them to the Marshall of the Kings Bench was the first step towards the bayling of them, as in all other cases; but that it appeares not, that either they ever demanded to be bayled, or that they were able to finde sufficient Bayle. And if they did not the one, or could not doe the other, it may follow indeed that they were not bayled; but the commitment to the Kings Bench being the first step to bayling, and by constant course it is, shewed most plainly, that they were bayleable by the Law, which is the onely thing in question: so that although the foure Presidents were ranked among them that may seeme to make against the resolution of the House of Commons, which was done, both because they have this small colour in them for the other side, to any man that is not acquainted with the nature and reasons of the Entries and courses of the Court of Kings Bench, and also because all or some of them had beene used in the late great case in the Kings Bench, as Presidents that made against this liberty claimed by the Subject, yet in truth all soure of them doe fully prove their resolution, that is, they plainly shew that the Court of Kings Bench in every of them resolved, that the prisoners so committed were bayle­able, otherwise they had beene remanded, and not committed to the Marshall of the Kings Bench. And this was the answer to the objection made by M. Attorney upon these foure Presi­dents, being all of them in the time of H. 7.

7 H. 8. Pages cas [...] cite devant. fo. 43. & 63. To the fifth of these being Ed Pages Case in 7. H. 8. Rot. 23. M. Attorney objected thus, he said, that Edward Page was com­mitted [Page 82] to the Marshalsea of the Houshold per mandatum Dom. Regis ibid. salvo custodiend. &c. Qui committitur Marr. Hospitii Dom. Regis, &c. by which it appeares as he said, that the Court remanded him to the prison of the Marshalsea of the houshold, and hee said, whereas it had beene objected at the first confe­rence, that here was some mistaking in the Entry, he said he conceived indeed there was a mistaking, but the mistaking was, that the Clerk had entred committitur for remittitur, and that it should have beene Qui remittitur Hospitii Dom. Regis, for when ever they remand a prisoner remittitur and not com­mittitur should be entred, and that mistaking being so rectified and understood, he conceived it was a direct President against the resolution of the House of Commons.

Rns al dit ob­jection. To this it was answered by the Gent. of the House of Com­mons, that there was no doubt indeed but that a mistaking was by the entry of the Clerk, but that the mistaking was quite of another nature. The addition of these words Hospitii Dom. Regis was the mistaking, and the entry should have bin qui committitur Marr. &c. onely, that is, that he is committed to the Marshall of the Kings Bench, and so indeed the force of the President should be just the same with the first foure, but the ignorance of the Clerk that entred it, knowing not how to distinguish betweene the Marshall of the Houshold, and the Marshall of the Kings Bench, was the cause of the Addition of these words, and to confirme fully this kinde of interpretation of that President, and of the mistaking in it, 'twas observed by the Gent. of the House of Commons, that there is in the Mar­gine of the Roll an infallible Character that justifies so much, for by the course of that Court whensoever a prisoner is com­mitted to the Marshal of the Kings Bench, and not remanded, the word Marr'. &c. is written in the Margin short, by Marr' &c. turned up, and that is never written, but when the mean­ing and sence of the Entry is, that the prisoner is committed to the prison of the same Court, now in this Case in the Margin Marr'. is likewise written, which most plainely shewes the truth of the Case was, that this Page was committed to the Marshall of the Kings Bench, and not remanded, which if hee had beene, neither could the Entry have beene committitur, nor [Page 83] should the Margine of the Rolle have had Marr' written in it. And thus they answered Master Attorneys Objection touching this President, and concluded that now besides the first foure of the eight, they had another, and so five, more to prove that a prisoner committed per mandatum Dom. Regis ge­nerally was bayled by the Judgement of the Court. Howe­ver it appeares not in these particulars that they were bayled, which perhaps they were not, either because they prayed it not, or because they could not find sufficient Bayle.

8. Iac. Caesars case cite devant fo. 46. & 64. Objections hors de ceo. To the sixth of these eight Presidents, being the Case of Tho. Caesar in 8. Iac. Rot. 99. Master Attorney objected it thus, That Caesar being committed per mandatum Dom. Regis to the Mar­shalsea of the Houshold was returned upon Habeas Corpus to be so committed, and therefore deteyned in Prison, and that the entrie is qui remittitur prisonae pred. by which it appeares cleerely, that he was remanded to the same prison from whence he came.

Rns al dits obiections. To which the Gentlemen of the house of Commons gave this answer, they said that the usuall entrie of a remittitur, when it is to shew that the Court by way of Judgement or award upon a resolution or debate remand the prisoner, is quo­us (que) secundum legem deliberatus fuerit, but when they advise, or give day to the Keeper of the prison to amend his returne, or the like, then the entrie is only remittitur generally, or re­mittitur prisonae pred. But it was indeed affirmed by Master Keeling, a Clerke of experience in that Court, that the entrie of Remittitur generally, or Remittitur prisonae pred. was indif­ferently used for the same that Remittitur quous (que) &c. yet it was expresly shewed by the Gent. of the house of Commons that there was sometimes a difference, and that so it might, well be in this case, for in the last of these eight presidents, which is Saltonstals Case, they observed that Remittitur priso­nae pred. is often used, only for a remanding during the time that the Court gave leave for the Warden of the Fleet to a­mend the returne, which shewes plainly, though sometimes Remittitur generally, and Remittitur quous (que) may meane but the same, yet sometimes also it doth not meane the same. And that in this Case of Caesar it meant only but so much as it doth [Page 84] twice in that of Saltonstalls Case, which was proved also by a rule of the Court, which was cited out of the Rule Booke of the Court of Kings Bench, by which rule the Court expresly ordered, that unlesse the Steward and Marshall of the house­hold did sufficiently return the Writ of Habeas Corpus for Cae­sar, that he should be discharged, the words of the Rule are Nisi pred. Seneschall' & Marr' Hospitii Dom. Regis sufficien­ter returnabit bre. de Habeas Corpus Thomae Caesar die Mercur. prox' post festum Sanct. Martin. defendens exonerabitur. And this was the opinion of the Court, which shewes that the Court was so farre from remaunding him upon the re [...]urne, that they resolved, that unlesse some better returne was made, the prisoner should be discharged of his first imprisonment, though it appeare to them out of the body of the returne upon which they are to judge, that he was committed per manda­tum Dom. Regis only. And the Rule not only shewes the opi­nion of the Court then to be agreeable with the resolution of the house of Commons, but also proves that Remittitur gene­rally, and Remittitur prisonae predict. doth not alwayes implie a remanding upon Judgement or debate. And this answer was given to this of Caesars Case, and that is the sixth of this number.

12. Iac. Deme­strius and o­thers case cite devant, fo. 46. & 64. Obiections hors de ceo. The seventh, is the Case of James Demestrius, it was 12. Iac. Rot. 153. Master Attorney objected, that this Demestrius and divers others being Brewers, were committed per Consilium Dom. Regis to the Marshalsea of the houshold, and that upon the commitment being so generally returned they were re­manded, and that the entrie was immediate remittitur praefat. Marr' hospitij praed. where observes that immediate shewes that the Judges of that time were so resolved of this question, that they remaunded them presently, as men that well knew what the Law was herein.

Rns al dit obiections. Hereunto the Gent. of the House of Commons gave this answer; First, that the remittitur in this Case is but as the other in Caesars, and so proves nothing against them. Secondly, that immediate being added to it shewes plainly, that it was done without debate, or any Argument or consideration had of it, which makes the Authoritie of the President to be of no force [Page 85] in point of Law. For Judgements and awards given upon de­liberation and debate only are proofes and Arguments of weight, and not any sudden act of the Court without debate or deliberation. And the entrie of immediate being proposed to Master Keeling, it was confirmed by him, that by the En­trie it appeared by their course, that the remaunding of him was the selfe-same day he was brought, which as it was said by the Gent. of the house of Commons might be upon the rising of the Court, or upon advisement, or the like; and this answer was given to this President of the Brewers.

12. Iac. Salton­stalls case cite devant, fo. 49. & 65 Obiections hors de ceo. To the last of these eight which Master Attorney objected is Saltonstalls Case 12. Jac. he was committed per mandatum à Dom. de privato Consilio, and being returned by the Warden of the Fleet to be so, Remittitur prisonae pred. and in 13. Iac. in the same Case there is remittitur generally in the Roll, and these two make but one Case, and are one President.

Rns al dits obiections. To this the Gent. of the house of Commons answered, that it is true the Rolles have such entries of remittitur in them ge­nerally, But that proves nothing upon the reason before used by them in Caesars Case. But also Saltonstall was committed for another cause, besides per mandatum Dom. Regis, for a con­tempt against an Order in the Chancery, and that was in the returne also. And besides the Court, as it appeares in the Re­cord, gave severall dayes to the Warden of the Fleet to amend his returne, which they would not have done, if they had con­ceived it sufficient, for that which is sufficient needs not a­mendment.

To this Master Attorney replied, that they gave him day to amend his returne, in respect of that part of it which concerns the Order in Chancery, and not in respect of that which was per mandatum Dom. Regis. But the Gent. of the House of Commons answered, that that appeared not any where, nor in­deed is it likely at all, nor can be reasonably so understood, be­cause if the other returne per mandatum Dom. Regis had beene sufficient by it selfe, then doubtlesse they would have reman­ded him upon that alone, for then they needed not at all to have stood upon the other part of the returne in this Case. So that out of the Record it selfe it appeares fully, that the Court [Page 86] conceived the returne to be insufficient. So the Gent. of the house of Commons concluded, that they had a great number of Presidents, besides divers Acts of Parliament, and reasons of Common law, agreeable to their resolution, and that there was not one President at all that made against them, but indeed, that almost all that were brought as well against them as for them, if rightly understood, made fully for the maintenance of their conclusion, and that there was not one Example or President of a Remittitur in any kind upon the point before that of Caesars Case, which is before cleered with the rest, and is but of late time, and of no moment against the resolution of the House of Commons.

And thus, for so much as concerned the presidents of Re­cord, the first day of the Conference desired by the Lords ended.

The next day they desired another Conference with the House of Commons, at which it pleased the Committee of both Houses to heare Master Attorney againe make what Ob­jections he could against other parts of the Argument formerly delivered from the House of Commons, he objected against the Acts of Parliament, and against the reasons of the Law, and his objections to those parts were answered, as it appeares by the Answers by order given into the House of Commons by the Gent. that made them. He objected also upon the se­cond day against the second kind of Presidents, which are re­solutions of Judges in former times, and not of Record, and brought also some other testimonies of the opinions of Jud­ges in former times touching this point.

Resolution de touts les Iudges, 34. El. Objections hors de ceo per l' At­torney. First, for that Resolution of all the Judges of England in 34. El. mentioned and read in the Arguments read at the first Conference, he said, That it was directly against the resolution of the House of Commons, and observed the words of it in one place to be, that persons so committed by the King, or by the Counsell, may not be delivered by any of the Courts &c. And in another, that if the cause were expressed, either in ge­nerall or in specialtie, it was sufficient, and he said that the ex­pressing of a Cause in generaltie, was to shew the King and the Counsels cōmand, and to this purpose he read the whole words [Page 87] of that resolution of the Judges. Then he objected also, that in a report of one Roswels Case in the Kings Bench in 13 Jac. he found that the opinion of the Judges of that Court (Sir Edward Cooke being then chiefe Justice and one of them) was that a prisoner being committed per mandatum Dom. Regis, or privati Consilii, without cause shewed, and so returned, could not be bayled, because it might be matter of State, or Arc anum nuperii, for which he stood committed. And this al­so he added, an opinion he found in a Journall in the House of Commons of 18. Iac. wherein Sir Edward Cooke speaking to a bill preferred for the explanation of Magna Charta touching imprisonment, said in the same House, that one so committed could not be inlarged by the Law, because it might be matter of State for which he was committed, and amongst these ob­jections, as his objections of the other nature, also he spake of the confidence that was shewed in the behalfe of the House of Commons: and he said, it was not confidence on either part could adde any thing to the determination of the question; but if he would, that he had as much reason of Confidence for the other side against the resolution of the House of Commons, grounding himselfe upon the force of his objections, which as he conceived had so weakned the Arguments of the House of Commons.

Rns al dits ob­jections. To this a reply was made, and first it was said to the Lords on the behalfe of the House of Commons, that notwithstand­ing any thing yet objected, they were upon cleare reason still confident of the truth of their first resolution, grounded upon so just examination, and deliberation taken by them. And it was observed to the Lords also, that their confidence herein was of another nature, and of greater waight, then any confi­dence that could be expressed by M. Attorney, or whomsoever else being of his Majesties Counsell learned.

To which purpose the Lords were desired to take into their present memories the difference between the present qualities of the Gent. that spake in the behalf of the House of Commons, & of the Kings learned Counsel in their speaking there howso­ever accidently they were both men of the same profession: For the Kings Counsell spake as Counsell perpetually retained [Page 88] by Fee, and if they made glosses or advantagious interpretati­ons whatsoever for their own part, they did but what belonged unto them; but the Gent. that spake in behalfe of the House of Commons, came there, bound on the one side by the trust repo­sed in them by their Country that sent them, and on the other side by an oath taken by every of them before hee sit in the House, to maintaine and defend the rights and prerogatives of the Crown, for even in the point of Confidence alone those of them that speake as retained Counsell by perpetuall Fee, and those that by their place being admitted to speake, are bound to utter nothing but truth, both by such a trust and such an oath, were no way to be so compared or counterpoised, as if the one were of no more waight then the other.

Resolution de 34. El. explaine & expound. For that of the resolution of all the Judges in England in 34. El. It was shewed that plainly it agreed with the reso­lution of the House of Commons, for although indeed it might have beene expressed with more perspicuity, yet the words of it as they are, sufficiently shew that to them. To that purpose, besides the words of the whole frame of this resolu­tion of the Judges, as it is in the Copie transcribed out of the Lord chiefe Justice Andersons Book, written with his owne hand, which book was here offered to be shewed in the be­halfe of the House of Commons, it was observed, that the words of the first part of it shew plainly, that all the Judges of England then resolved, that the prisoners spoken of in that first part of their resolution, were onely prisoners committed with cause shewed; for they onely say they might not be de­l [...]vered by any of the Courts without due triall, by law and judgement of the acquittall they must be delivered; but it is cleare that no triall or acquittall can be had, where there is not some cause laid to their charge, for which they ought to stand committed. Therefore in that part of the resolution such priso­ners are onely meant as are committed with cause shewed, as which also the Judges expresly in that resolution expresly thought necessary, as appeares in the second part of their reso­lution, wherein they have these words, If upon the returne of their Habeas Corpus, the cause of their commitment be certi­fied to the Judges, as it ought to be, &c. By which words they [Page 89] shew plainly, that every returne of a commitment is insuffici­ent, that hath not a cause shewed of it. And to that which M. Attorney said, as if the Cause were sufficiently expressed in generality, if the Kings command or the Counsels were ex­pressed in it, as if that were meant in the resolution for a suffi­cient generall cause, It was answered, that it was never heard of in Law, that the power or person that committed the pri­soner was understood, for the causa captionis or causa detentio­nis, but onely the reason why that power or person commit­ted the prisoner, as also in common speech if any man aske why or for what cause a man stands committed, the answere is not, that such a one committed him, but his offence or some other cause is understood in the question, and is to be shewed in the Answer, but to say that such a one commit­ted the prisoner, is an answer onely to the question, who committed him? and not why or for what canse hee stands so committed.

That for that of the Copie of the report in 13 Iac. shewed forth by M. Attorney, it was answered by the Gent. of the House of Commons, that the report it selfe which had beene before seene, and perused among many other things at a Com­mittee made by the House, was of sleight or no authority, for that it was taken by one who was at that time a young Stu­dent, and as a reporter in the Kings Bench, and there was not any other report to be found to agree with it. Secondly, al­though the reports of young Students, when they take the words of Judges as they fall from their mouthes at the Bench, and in the same person and forme as they have spoken, may be of good credit, yet in this Case there was not one word so reported, but in truth there being three cases of a time in the Kings Bench, one Rosewells Case, Allens, and one Saltonstalls case, every of which had something of like nature in it, the Student having beene present in the Court, made up the frame of one report or case out of all three in his owne words, and so put it into his Book: so that there is not a word in the re­port, but it is framed according to the Students fancie, as it is written, and nothing is expressed in it, as it came from the mouth of the Judges, otherwise then as his fancy directed him.

Thirdly, there are in the report plaine falshoods of matter of fact, which are to be attributed either to the Judges, or to the reporter. It is most likely by all reason that they procee­ded from the reporters faults, and howsoever, these matters of falshood shew sufficiently that the credit of the rest is of light value. It it said in the report that Harecourt being committed by the Counsell, was bayled in 40. El. upon a Privie Seale or a Letter, whereas in truth there is no such thing. And it is said here, that kind of Letters are filed in the Crowne Office, whereas in truth there was any such kind of Letters filed there in any case whatsoever, that resolution of the Judges in 34. El. is mis-cited there, and made in 36. El. And it is said there, that by that resolution a Prisoner returned to be committed by the Command of the King might not at all be delivered by the Court, whereas no such thing is comprehended in that resolution.

But that which is of most moment is, that howsoever the truth of the report were, yet the opinion of the Judges being sudden, and without any debate had of the Case, is of light moment, for in difficult points especially the most grave and learned men living may on the sudden let fall (and that with­out any disparagement to them) such opinions as they may will, and ought to change upon further inquirie, examination, and full debate had before them, and mature deliberation ta­ken by them. Now plainly in that of 13. Jac. there is not so much as a pretence of any debate at the Barre or Bench. All that is reported to have beene, is reported as spoken of the sudden. And can any man take such a sudden opinion to be of value against such debates and mature deliberations since had of the point? And indeed this great point, and all circumstances belonging to it, hath within this halfe yeare beene so fully ex­amined and searched into, that it may well be affirmed, that the most learned man whosoever that hath now considered of it, hath within that time, or might have learned more reason of satisfaction in it then ever before he met with. Therefore the sudden opinion of the Judges to the contrary is of no va­lue here, which also is to be said by that opinion obliviously delivered in the Commons house in 18. Iac. as Master Attor­ney [Page 91] objected out of the Journall of the House. But besides, neither was the truth of that report of that opinion of the Journall any way acknowledged, for it was said on the be­halfe of the house of Commons, that their Journals were for matters of Orders and resolutions of the House of such Au­thority, as that they were as their Records. But for any parti­cular mans opinion noted in any of them, it was so farre from being of any authority there with them, that in truth no par­ticular opinion is at all to be entred in them, and that their Clerke offends whenever bee doth to the contrary. And to conclude, no such opinion whatsoever can be sufficient to wea­ken the cleare Law comprehended in these resolutions of the House of Commons grounded upon so many Acts of Parlia­ment, so much reason of the Common law, and so many Pre­sidents of Record, and the resolution of all the Judges of England, and against which not one Law written or unwrit­ten, not one President, not one reason hath beene brought that make any thing to the contrary.

And thus to this purpose ended the next day of the Con­ference desired by the Lords, and had by a Committee of both Houses.

FINIS.

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