SIR Thomas Darnell Baronet, being impri­soned in the Fleet by vertue of a warrant signed by the Kings Atturney Generall upon the third of November, by Sergeant Bramston his assigned Councell, moved the Justices of the Kings Bench to grant him a Writ of Habeas Corpus cum causa directed to the Warden of the Fleet to shew that Court the cause of his imprisonment, that there­upon they might determine whether his restraint were legall or illegall, and it was granted by the Court returnable Thurs­day following the 8 ^th day of November.

On Thursday Sir Thomas Darnell expected that his Writ should be returned, but it was delaied, and it was moved that the return should be on Saturday the tenth of Novem­ber, which made Sir Thomas Darnell the more remisse in suing out an Alias upon his Habeas corpus.

On Saturday the Writ was not returned, and thereupon the Kings Atturney Generall gave order for an Alias upon the Habeas corpus for Sir Thomas Darnell, returnable upon Thursday morning the thirteenth of November; by vertue of which Writ the Warden of the Fleet brings Sir Thomas Darnell to the Kings Bench and returneth as followeth:

[Page 2] Executio istius brevis patet in quadem schedula annexat' huic brevi.

The Return was this:

Ego Henricus Liloe Miles gardianus prisone Domini Regis de le Fleet, Serenissimo domino Regi certifico quod dict' Thomas Darnell Baronet detentus est in prisona praedict' sub custodia mea virtute cujusdam Warranti duorum de privato Consilio mihi directi, cu­jus tenor sequitur in his verbis: viz.

Whereas heretofore the body of Sir Thomas Darnell hath been committed to your custody, these are to require you still to continue him; and to let you know that he was and is com­mitted by the speciall command of his Maje­sty, &c.

Et haec est causa detentionis predict' Thomae Darnell.

May it please your Lordship, I did not expect this Cause at this time, neither did I hear of it untill I came now into the Hall; and therefore I shall now humbly shew you what my Client hath informed me since my comming hither. I under­stand by him that he expected not his comming to this place to day, the writ by which he was brought hither was not moved for by him, but was procured without his privity, and seeing his case is so, and that he perceives the cause of his comming, which before he knew not, his motion to your Lordship is, that you would be pleased to let him have the Copy of the return and give him time to speak unto it, and [Page 3] that this writ being not sent out by his procurement may not be field.

My Lords, it is true that this Gent. Sir Thomas Darnell be­ing imprisoned in the Fleet, did heretofore move your Lord­ship for a Habeas Corpus, &c. and it was granted him, and his Majesty being made acquainted therewith was very wil­ling that he and all his people might have equall Justice, and when they desire that which seemes to accord with the rules of the Law they should have it. But it fell out so that on the day when the writ should have been returned, the Warden of the Fleet did not return it as it was his duty to have done; he did forbear to do it upon a commandement, because it was conceived, there being five at that time to appear, the Court would have been straitned for want of time, but I imagined that these gentlemen who did desire the writ be­fore should have again been earnest to renew them, which it seemes they did not. This Habeas Corpus was sent out by speciall command, because these gent. gave out in speeches, and in particular this gent. That they did wonder why they should be hindred from triall, and what should be the reason their writs were not returned: nay his Majesty did tell me that they reported that the King did deny them the course of Justice, and therefore hee commanded me to renew the writ, which I did, and think I may doe it ex officio.

My Lords, I knew not untill now but that I was committed by Mr. Atturneys warrant only, and thereupon I did desire a Habeas corpus at the Barre, which you were pleased to grant me, but now I understand that my restraint is by another means, and therefore I shall crave leave to have some time to speak to it. And as for the words alledged against me as if I had spoken them, I humbly. pray they may be no dis­paragement to my cause, for I do patiently referre my self to your grave censures, as being accused of a fact whereof I am no ways guilty.

You give a temperate and fair answer; and now you may perceive the upright and sincere proceedings that have been in this businesse; you did no sooner petition to have Councell assigned you, but you had it granted to you, for indeed we cannot deny it, and I know not but that any Councell might have moved for you, without having been assigned for you, and yet have had no blame, for it is the Kings pleasure his Lawes should take place and be executed, and therefore doe wee sit here: when you made a motion of the Habeas corpus, that was likewise granted; whether the commit­ment be by the King or others, this Court is a place where the King doth sit in person, and we have power to examine it; and if it appears that any man hath inju­ry or wrong by his imprisonment, we have power to deliver and discharge them, if otherwise, he is to be re­manded by us to prison again: now it seems you are not ready to speak to this return, if you desire further day we ought to grant it.

My Lords, I humbly desire it.

I know no cause why it should be denied.

My Lords, we shall desire the writ may not be filed, and that we may have a Copy of the return.

You cannot deny the filing of the writ, if you desire to have a Copy of the return.

Although you be remanded at this time to prison, because you are not ready to speak to the return, we can adjorn you to a new day upon the Writ, and so you may prepare your self; but if you will not have this fi­led, there must go out a new Habeas corpus, and there­upon must be another return.

My Lord, we desire some time that we may be advised whe­ther we may proceed or not.

Will you submit your self to the King?

My Lord, I desire some time to advise of my proceedings, I have moved many men, and offered to retain them of my Councell, but they refuse me, and I can get none to be of coun­cell with me without your assistance.

You shall have what Councell assigned you, you will have or desire, for no offence will be taken against any man, that shall advise you in your proceedings in Law.

I will passe my word, they that do advise you shall have no offence taken against them for it; and I shall give my con­sent to any way that you shall desire, either that it may be fi­led, or that it may not be filed; for if you desire Justice you shall have it, and the King will not deny it: but if it shall be conceived as it is rumored, that there was a deniall of Justice on the Kings part, you must know that his Majesty is very ten­der of that. And for the Gent. now he is brought hither, I conceive, but yet I leave it to your Lordships judgement, that [Page 6] the writ must be filed, and you must either deliver him or re­mand him, or else it will be an escape in the Warden of the Fleet.

I would not have it thought that I should speak any thing against my Prince, and for those words I doe deny them, for upon my conscience they never came into my thought, per­haps you shall find that they have been spoken by some other, but not by any of us.

Sir, you have made a fair answer, and I doubt not but Mr. Attorney will make the like relation of it; you move for the not filing of the Writ, if you refuse to have it filed whereby it should not be of Record, you must have no Copy of it, but if you will have it filed, you shall have a Copy of it, and further time to speak to it, choose whether of them you will.

We desire to have the return read once more: and it was read as before.

So as the writ may not be filed we will desire no copy of the return.

Then the Gent. must return back again into the cu­stody of the Warden of the Fleet, and therefore I ask you whether you desire to come hither again upon this Writ, or will you have a new one?

I desire your Lordship that I may have time to consider of it.

Then on Gods name take your own time to think of it.

MAY it please your Lordship, these gentlemen, Sir Walter Earle, Sir John Corbet, Sir Edmund Hampden, and Sir John Henningham, upon their motion to this Court to have their Habeas Corpus, and that themselves and the cause of their detai­ning them in their severall Prisons might be brought before your Lordship, had it granted to them.

My Lord, at the first motion of it, the knowledge thereof of comming, and that they had such a desire, his Majesty was very willing to grant unto them (as to all his Subjects) this common case of Justice, and though it be a case which concerns himself in a high degree, yet he hath been so gracious and so just as not to refuse to leave the examination and determination thereof to the Laws of this Kingdome.

My Lord, it is very true that this is a very great Cause, and hath raised a great expectation, and for the manner of it more then was necessary; but my Lord, I am afraid these gentlemen whom it concerns, have rather advised their Councell, then their Councell them: but I shall take the case as now I finde it, and as the gentlemens Councell on the other side have led me the way to it.

[Page 48] My Lord, the exceptions that have been taken by the Coun­cell on the other side, to the Return made by the Warden of the Fleet, and the rest of the Guardians of severall Prisons, have been two, for renewing of your Lordships memory we will read one of the Returns, they are all alike.

Then the Return was read for Sir John Henningham by Master Keeling.

May it please your Lordship, against this Return the Councell of the Gentlemen have taken some exceptions, and have divided their objections into two main points, The one the form the other the matter; To the form they have objected four severall things.

First, that the Return is not positive, but referred to the signifi­cation made by another, as the Lords of the Councell.

Secondly, that the Keepers of the Prisons have not returned the cause of the commitment, but the cause of the cause, which is not good.

Thirdly, that the Return is imperfect, for that it shews onely the cause of the detaining in Prison, and not the cause of the first commitment.

And lastly, that the Return is contradictory in it self, for that in the first part thereof there is a certification that the detaining of these gentlemen in prison, is Per speciale mandatum domini Re­gis; and when the Warrant of the Lords of the Councell is shew­ed, it appears that the commitment is by the command of the King, signified by the Lords of the Councell▪ and by your Lord­ships favour, I will give a severall answer to every of these severall objections: And for the first, that the Return, is not positive and affirmative, but depends upon and hath relation to some other, and therefore it is not good; I doe agree that the ground is true, that if the Return be not positive it is not good, we differ onely in the Minor, That the Return is not positive and affirmative, for I agree that these Book cases that have been put are good Law, as 27 Ass. pl. 65. that if the Sheriffe return that he hath sent to the [Page 49] Bailiffe of the hundred, and he gives him that answer, that is no good Return; for the Sheriffs ought to make the Return as of his own act without naming of the Bailiffe of the Hundred in his Return; for if he return, Quod mandavi Ballivo itine­ranti qui habet Retorn. omnium Brevium & executionem eorund, per Cartam domini Regis qui mihi dedit nullum Re­sponsum; this is not good if he were not Bailiffe of a Franchise or Signiory, for so is 21 H. 7. fol. 4.

There hath been cited to maintain these objections, 20 Ed. 3. the Record I have perused, and there I finde that the Bishop said, that it is found in Archivis in the Record &c. that he was ex­communicated, but it was found to be in Archivis &c. and that is no positive return: that it is so I will oppugne what hath been said by the Councell on the other side, it must be granted that if the return here be not positive, it is imperfect, and in 5 H. 7. 28. it is said that an imperfect return is no return at all, it is all one; but if the return was so, that was not much ma­teriall, for then it were but temporary, and it might be amen­ded, but my Lord they have mistaken the minor proposition, for they have it as granted that there is an imperfect returne from the Lords of the Councell; my Lord I shall intreat you to cast your eyes upon the Return, and you shall finde the first words positive and affirmative: the words are, Quod de­tentus est sub custodia mea per speciale mandatum domini Re­gis: the other words mihi significatum, they follow after but are not part of the affirmation made before it; but if they will have it as they seem to understand it, then they must re­turn the words thus: Quod testificatum, or significatum est mihi per dominos Privati Concilii quod detentus est per spe­ciale mandatum domini Regis, and then indeed it had not been their own proper return, but the signification of another, The Lords of the Councell, the turning of the sentence will resolve this point, the thing it self must speak for it selfe, I conceive by your Lordships favour, that it is plain and cleare here is a positive Return, that the detaining is by the command­ment of the King: and the rest of the Return is rather satisfa­ction [Page 50] to my self and the Court, then otherwise any part of the Return.

The second Objection hath dependence upon this, as that he hath returned the cause of the cause, and not the cause of it self, wherein under your Lordships favour they are utterly mistaken; for the Return is affirmative, Ego Iohannes Liloe testifico; &c. I know that among the Logicians there are two causes, there is Causa causans, and Causa caussata, the causa causans here in this case is not the warrant from the Lords of the Councell, for that is causa causata: but the Primary and Originall cause, which is causa causans, is speciale mandatum domini Regis; the other is but the Councels signification or testifi­cation, or warrant for him that made the Return.

To the third Objection, that the Return is imperfect, be­cause it shews only the cause of the detaining in prison, and not the cause of the first commitment.

My Lords, for that I shall not insist much upon it, for that I did say the last day which I must say again, it is sufficient for an Officer of the Law to answer that point of the Writ which is in command.

Will your Lordship please to hear the Writ read, and then to see whether the Wardens of the prisons have not made an­swer to so much as was in command?

Then the Writ was read by Master Keeling.

My Lord, the Writ it selfe clears the Objection, for it is to have the party mentioned in it, and the cause of his detention returned into this Court, and therefore the answer to that is sufficient. Onely my Lord, the Warden of the Fleet, and the rest of the keepers of the prisons, had dealt prudently in their proceedings, if they had onely said that they were detained Per speciale Mandatum Domini Regis, and it had been good, and [Page 51] they might have omitted the rest: but because if they should make a false Return they were liable to the actions of the party, they did discreetly to have the certification of the Lords of the Councell in suspition, that if this Return was not true they were liable to the actions of these Gentlemen.

In 9 H. 6. 40. 44. it is said, that whatsoever the cause be that is returned, it must be accepted by the Court, they must not doubt of the truth of the Return, and the Officer that shall re­turn it is liable to an action if the Return be false, and there­fore the Guardian of the prisons did wisely because they knew this was a case of great expectation to shew from whom they had their warrant, and so to see whether the cause returned bee true or not.

The last Objection to the Return is, that it is contradictory in it self, as that the first part of it is, that they are detained in prison, Per speciale mandatum Domini Regis, but in this re­lation of it, it shews that they are detained by the command of the Lords of the Councell, for the words of their warrant are to require you still to detain him, &c.

But my Lord, if they will be pleased to see the whole war­rant together, they shall finde that the Lords of the Councell speak not their own words or command in that warrant, but they say that you are to take notice of it as the words and com­mand of the King; for my Lord, the Lords of the Councell are the servants to the King, they signifie his Majesties pleasure to your Lordship, and they say it is his Majesties pleasure you should know that the first commitment & this present detaining him in prison, are by his Majesties speciall commandment.

And this my Lord is all that I will say for the sufficiency of the form of the Return, to prove that it is sufficient.

Touching the matter of the Return the main point thereof, it is but a single question, and I hope my Lord of no great difficulty, and that is whether they be replevisable or not replevisable. It [Page 52] appears that the commitment is not in a legall and ordinary way, but that it is per speciale mandatum domini Regis, which im­plies not onely the fact done, but so extraordinarily done, that it is notorious to be his Majesties immediate Act and will, it should be so; whether in this case they should be bailable or not in this Court, which I acknowledge to be the highest Court of Judicature for such a case as is in question.

The Councell on the other side desire that they may be bai­led, and have concluded that they may not be remaunded, their grounds of argument (though they were many that did speak) I have in my collection divided into five points:

The first was reasons that they must be so, arising from the in­conveniences that would fall to the subjects, if it should not be so in the main points of their liberty.

The second was, they shewed divers Authorities out of their Law books, which they endeavoured to apply.

The third was, Petition of the Commons answered by seve­rall Kings in Parliament.

The fourth was, Acts of Parliament in Print.

The last was, Presidents of divers times, which they alledged to prove, that men committed by the Kings commandment, and by the commandment of the Lords of the Privy Councell, which I conceive to be all one, for the body of the Privy Coun­cell represents the King himself, that upon such commitment in such causes men have been bailed.

In the course of my Arguments, I will follow their method: first, to answer their reasons, and then those Books which they have cited, which I conceive to be pertinent to this question, and then the Petition and Answer made in Parliament, and then their Acts of Parliament, next their Presidents; and lastly, I [Page 53] will give your Lordship some reasons of my owne, which I hope shall sufficiently satisfie your Lordship and all others but the parties themselves, for I except them.

My Lord, the great and mighty reason that they insisted upon, was the inconveniences that might come to the subjects in their liberties, if this Return should be good, and this reason they inferred out of Records and Books of the Common Law, which gives the liberty of the subjects; I doe acknowledge that the liberty of the subject is just, and that it is the inheritance of the subject, but yet it is their inheritance secundum legem terrae.

My Lords, they put many cases likewise to enforce it, 1 & 2 Eliz. Dier fo. 175. that the continuance of a Capias shall bee from Term to Term, without Term betwixt, because other­wise the party defendant may be kept too long in prison, and 38 Ass. pl. 22. Broke tit. Imprisonment 100. that imprisonment is but to detaine the party till he have made fine to the King, and therefore the King cannot justly detain him in prison after the fine tendred, and 16 H. 6. monstrans de faictz 182. if the King command me to arrest a man, and thereupon I doe arrest him, he may have an action of false imprisonment, or of trespasse a­gainst me, though it be done in the Kings presence, and 1 H. 7. 4. the discourse of Hussey, where he saith that Sir John Markham delivered unto King Edward the fourth, that hee should not arrest upon treason or felony any of his subjects, because hee could not wrong his subjects by such arrest, for they could not have remedy against him. Prerogative, Br. 139.

These my Lord are the causes that they insisted upon for this purpose.

To the two first, I shall give but one answer, which is that the restraint in these two cases, and most of the other cases before cited, appears to be in the ordinary course of Judicature fit for Westminster Hall, and not for the Kings Councell Table. A writ of Capias was the first originall of it, and therefore not to be applied to the cause of ours.

And for the other two cases, the law presumeth that the a­ctive [Page 54] part of them is not so proper for the Majesty of a King, who ever doth these things by his subordinate Officers; But that the subject should not be committed by the King, was never heard of, for the King may commit any man at his pleasure, but that is not our case: but whether when the King hath com­mitted one, he must render a cause of that commitment, that it may appear whether the party be bailable or not, or else the party must be delivered.

The Book 9 E. 3. fol. 16. pl. 30. cited of a Cessavit, the King having by Proclamation commanded that in the County of Northumberland, no Cessavit should be brought, &c. du­ring the war; the tenant pleadeth this command, and it was de­nyed him, and he that notwithstanding was commanded to plead, but the reason thereof was, because the commandment thereof was given by E. 2. who being dead, the commandment was de­termined.

The Book of Edward the third 4. fol. 16. is indeed where the commandment was given by the same King, and that was likewise denyed him, for the King cannot command your Lordship to any other Court of Justice, to proceed otherwise then according to the Laws of this kingdome, for it is part of your Lordships oath to judge according to the Law of the king­dome. But my Lord, there is a great difference between those legall commands, and that absolute Potestas, that a Soveraign hath, by which a King commands; but when I call it abso­luta potestas, I doe not mean that it is such a power as that a King may doe what he pleaseth, for he hath rules to governe himself by, as well as your Lordship, who are subordinate Judges under him, the difference is, the King is the head of the same fountaine of Justice, which your Lordship administers to all his subjects, all Justice is derived from him, and what he doth, he doth not as a private person, but as the Head of the Common-wealth, as Iusticiarius Regni, yea the very essence of Justice under God upon earth, is in him: and shall not wee generally, not as subjects onely, but as Lawyers, who governe themselves by the rules of the Law, submit to his command, but make inquiries whether they be lawfull, and say that the King [Page 55] doth not this or that in course of Justice?

If your Lordship sitting here shall proceed according to Ju­stice, who calleth your actions in question, except in your own Judgements, you see some errour in the proceeding, and then you are subject to a writ of Errour.

But who shall call in question the Actions or the Justice of the King, who is not to give any account for them? as in this our case, that he commits a subject and shews no cause for it.

The King commits and often shews no cause, for it is some­times generally, Per special [...] mandatum domini Regis, some­times Pro certis causis ipsum dominum Regem moventibus; but if the King doe this, shall it not bee good? it is all one when the commitment is Per speciale mandatum domini Regis, and when it is Pro certis causis ipsum dominum Regem moventi­bus, and it is the same if the commitment be Certis de causis ipsum dominum Regem tangentibus.

And my Lord, unlesse the Return to you doth open the se­crets of the commitment, your Lordship cannot judge whether the party ought by Law to be remaunded, or delivered: and therefore if the King allow and give warrant to those that make the Return, that they shall expresse the cause of the commitment, as many times he doth, either for suspition of felony, or ma­king money, or the like; we shall shew your Lordship that in these causes this Court in his Jurisdiction were proper to try these criminall causes, and your Lordship doth proceed in them although the commitment be Per speciale mandatum domini Re­gis, which hath not secret in it in these causes, for with the warrant he sendeth your Lordship the cause of the committing, and when these warrants are made and brought into this Court, your Lordship may proceed, but if there be no cause expressed, this Court hath always used to remaund them for it hath been used, and it is to be intended a matter of State, and that it is not ripe nor timely for it to appear.

[Page 56] My Lord, the main fundamentall grounds of Arguments upon this case beginnes with Magna Charta, from thence have grown states for explanation thereof, severall Petitions of Parlia­ment and Presidents for expedition, I shall give answers to them all.

For Magna Charta, in the 29 Chapter, hath these words, No Free-man shall be taken nor imprisoned or disseised of his free­hold, liberties, nor free customes, nor be outlawed, or exiled, nor any other way destroyed, nor we will not passe upon him nor condemn him, but by lawfull Judgement of his Peers, or by the Law of the Realm.

My Lord, this statute hath been many times confirmed, the Lord Coke numbred up the number to be about twenty, and we are to conclude on this, it is the foundation of our liberties.

No Free-man can be imprisoned but by legale judicium Pa­rium suorum, aut per legem terrae. But will they have it un­derstood that no man should be committed, but first he shall be indicted or presented? I think that no learned man will offer that, for certainly there is no Justice of Peace in a County, nor Constable within a Town, but he doth otherwise, and might commit before an Indictment can be drawn or a Presentment can be made: what then is meant by these words, Per legem ter­rae? if any man shall say this doth not warrant that the King may for reasons moving him commit a man, and not be answe­rable for it, neither to the party, nor (under your Lordships fa­vour) unto any Court of Justice, but to the High Court of Heaven; I doe deny it, and will prove it by your statutes.

My Lord, it was urged by the Councell on the other side, that our printed Magna Charta which saith, nec super eum mitti­mus, are mistaken, and that in divers Manuscripts it is expresly set down to be nec eum in Carcerem mittimus. I cannot judge of the Manuscripts that I have not seen, but my Lord I have one here by me, which was written many Ages agoe, and the words in print are word for word as that that is here written.

[Page 57] Then they say that Matthew Paris sets it downe so in his story; my Lord, we doe not govern our selves by Chroni­cle, but to answer that of Matthew Paris, he reports a thing done in King Iohns time, but it was then but thought on, and it was enacted in the time of Henry the third, and there bee many things said to be done in Matthew Paris which were not, and many things omitted by him which were done.

This Charter was but in election in the time of King John, and then it might be, nec eum in Carcerem mittimus, but it was not enacted till the time of Henry the third, and then that was omitted, and the Charter granted as now we have it.

But if they doe see no more then I in this clause, I know not why we should contend about these words, seeing the first part of this statute saith, Nemo imprisonetur, why then may not I say as well, nec eum in carcerem mittimus? I see no diffe­rence in the words, and therefore my Lord, I shall not insist a­ny longer upon the literall exposition of the words of Magna Charta, but I will resort to the rest of it which is exprest in the subsequent statute and in common practise.

2 E. 3. 8. 5 E. 3. 9. 14 E. 3. 14.The Councell on the other side said, that the statute of 28 E. 3. c. 3. expresseth and giveth life to this Charter, I shall desire to have that statute read.

Item, whereas it is contained in the great Charter, &c. Vide all these statutes following in Master Littletons Argument in Parliament.

My Lord, the reading of this statute will give answer to it, for it is apparent by the words thereof, none shall be taken by peti­tion, &c. and that the Court be extended to the first arrest, but they are to be understood that none shall be condemned, but hee shall be brought to answer, and be tried.

[Page 58] And if it be expounded otherwise, it will be contrary to that practise which was then in use.

But it is utterly forbidden by this statute, that any man should be condemned upon suggestions or petitions made to the King or Councell, without due triall by Law.

The next statute they cited was 25 Ed. 3. cap. 4. My Lord, I desire that that may be read.

Item, that no man of what estate or condition soever that he be, shall be put out of land or tenement, nor taken, nor im­prisoned, nor disinherited, nor put to death, without being brought to answer by due processe of Law. 42 E. 3. 3.

My Lord, this statute is intended to be a finall prosecution, for if a man shall be imprisoned without due processe, and ne­ver be brought to answer, that is unjust, and forbidden by this statute; but when a man is taken in causes that are unknown to us, (who walk below the staires) we are not privy to the cir­cumstances which may cause the triall to be delayed, and perad­venture it is not time to bring the matter to triall, because it is not yet come to maturity, and therefore this is not in the mean­ing of the statute.

Another statute that they mention, is in the same year, and it is pag. 9. chap. 9. I desire it may be read.

Item, because the people of the Realm, &c. Vide Master Lit­tleton as before.

My Lord, it is very clear, that this statute had no manner of thought of this cause in question; But whereas Sheriffes did procure Commissions to be awarded to themselves for their pri­vate [Page 59] gain to the prejudice of the subject, the statute condemneth those commissions, but it maketh nothing to this question which we have now in hand. The next statute which they cited, was 37 Ed. 3. cap. 18. I beseech it may be read.

Item, though it be contained in the great Charter, &c. Vide as aforesaid.

My Lord, this statute seems to be a commentary and light to the other statutes, the scope whereof is against private suggesti­ons made to the King or his Councell, and not in legall way, and therefore it condemnes them; and this is more fully expres­sed in the statute of 38 Ed. 3. cap. 9. which they likewise mentio­ned, by which statute direction is given what security those per­sons which make such suggestions are to give, that they should prosecute their suggestions, and what punishment they shall un­dergoe if their suggestions be found false.

Item, as to the Article made at the last Parliament, &c. Vide as before said.

My Lord, this and the last statute seem to conduce both to one purpose, that they that in their accusations went not in a le­gall way to bring the party to his answer, it was directed by this statute that they should goe a legall way.

The last Parliament in print, the Councell on the other side produced, was the statute of 1 R. 2. chap. 12. which I desire may be read.

Item, whereas divers people at the suit of parties were com­mitted to the Fleet, &c. Vide as before.

My Lord, it appeareth that the scope of this statute is against the Wardens of the Feet, for some miscarriages in them; but there is one thing in this statute which I shall desire your Lord­ship to observe: and that is, for those misdemeanours he shall forfeit his office, except it be by writ from the King or his com­mandement, so that it was no new doctrine in those times, that the King might then give such commandment for committing: the scope of this statute had two hands: first, that the Warden should forfeit his office: and secondly, that he should recompence the party.

In the fourth and fifth of Phil. & Mar. Dier 162. it was re­solved, that if the Warden shall deliver a man out of prison with­out command, hee forfeiteth his office and damage unto the party; But if he have the command of the King, that shall ex­cuse the forfeiture of his office, but he must bring the party hi­ther, and here these Gentlemen are now, for that commandment of the King is no exception for him not to observe.

If he receives a writ from this Court, to shew the Court from whence he receives his warrant, it may excuse the forfeiture of his office, but notwithstanding he is subject to the action of the party.

But I desire your Lordship to observe that part of the statute, which the other party would not make use of, which is, that the King may command by writ or otherwise; these were all the printed statutes cited by the Councell on the other side.

But because I would not misinterpret these statutes, I thought it equall to desire your Lordship that they might be read.

Besides the printed statutes, they mentioned Petitions by the Commons, and the Answers to them of severall Kings in Parlia­ment. The first is, Rot. pl. [...]6. Ed. 3. Numero primo & Nu­mero vicesimo: besides these two, there is one other of 28 Ed. 3. nu. 18.

[Page 61] My Lord, these three petitions and their answers, the two first were mentioned by the Councell on the other side, that in 28 E. 3. 28. I have produced all of them even to one purpose.

The Commons then petitioned the King, that all the Statutes made in exposition of Magna Charta, and of the Forest, may be kept and observed: The King makes answer, that it shall be done. And in one of the answers it is said, If any man be grieved, he may complain. But what is all this to the point in question? could there be any other answer to give life to these requests?

The King he is petitioned that some are injured; he answers, That if they complain they shall be relieved.

And now my Lord we are where we were, to finde out the true meaning of Magna Charta, for there is the foundation of our Case, all this that hath been said concerneth other things, and nothing to the thing in Question.

There is not a word either of the commitment of the King, or commandment of the Councell in all the Statutes and Records.

And now my Lord I am at an end of those Statutes, and come to that that was alledged and mentioned to be in 3 H. 6. 46. and if I could have found it, I would have brought it, but I could not finde it, therefore if they have it, I desire that they will shew it, but I think they have it not, and therefore I will let that goe.

And now my Lord I come to that which I insisted upon, the Question as it was at first, not whether the King or the Lords of the Councell can commit a man, and shew no cause wherefore they do commit him, but whether the ordinary Courts of Justice have power to bail him or no; for that I will insist upon the Statute of Westm. primo, which I desire your Lordship may be read, and then I will apply. Cap. 15. Main­prise Br. 11, 56, 78, Dier 170.

Vide Westm. primo.

My Lord, this Statute, if I misunderstand it not, is a full ex­pression [Page 62] to this purpose of Magna Charta, the scope whereof is to direct us in what case men imprisoned were to be bailed.

It was especially for direction to the Sheriffes and others, but to say Courts of Justice are excluded from this Statute, I conceive it cannot be.

It recites that whereas heretofore it was not resolved in what cases men were replevisable, and in what cases not, but onely in these four cases, For the death of a man, or by the commande­ment of the King, or of his Justices, or of the Forest.

My Lord, I say that this Statute expresseth not the Law was made by this Statute, that in these cases men were not replevi­sable; but it expresseth that the Law was clear in these cases; In these four cases it was clearly resolved before.

I pray you, my Lord, observe the time of the making of this Statute, that of Magna Charta was made in the time of Henry the third, and this of Westminster in the time of Edward the first, so that the first, it was made in the time of the same.

And my Lord, if they had understood the Statute of Magna Charta in another sense, would they not have expressed it so in this Statute? was it not fitter for them then for us, they being nea­rer the first making of Magna Charta then we are? But certain­ly the Statute of Magna Charta was expounded at the time as I have shewed before, if not, without all doubt at the time of ma­king of Westm. primo.

The Parliament would not have been so carefull to provide for things of lesser moment, and omit this of so great consequence, if there had been any question of it. In all times and ages Magna Charta hath been confirmed, but they shew not any one Law that doth except against this positive Law of Westminster the first, or any Acts of Parliament; nay more, in any printed books, that in this case men should be replevisable.

My Lord, if you know nothing printed or unprinted, if any [Page 63] will desire to alter a course that always hath been held, you will seek for presidents, for the constant use and course is the best expo­sition of the Law; it is not enough for me to say, this it is, unlesse I make it good.

First then I say, they on the other side cannot cite one Book, late Statute, or other thing, to prove, That they that have been committed Per speciale mandatum domini Regis, are bailable.

But my Lord, I finde some to the contrary, that they are not bailable, and I will cite some of them, and read of others, for I would not in a case of that expectation, that it should be thought that any thing should be mis-interpreted.

In the 33 of Hen. the sixth, folio vicesimo tertio, Robert Poy­nings Case, he was committed Pro diversis causis ipsum dominum Regem tangent'; this alters not the case, for it was as good as no cause, for it was the Warrant Domini Regis, and there is no que­stion upon this: But my Lord, I know this is not the point in que­stion.

The next thing I shall shew unto your Lordship, is Pasch. 21 Edvardi primo, Rot. cla. secund. and this, my Lord, was near the time of making of the Statute of Westm. prim. and this presi­dent is to this purpose.

The Sheriffe of Leicestershire and Warwickshire, (for then there was but one Sheriffe to both those Shires) did receive commande­ment by Letters from the King; That whereas the Earl of Warwick had commanded divers persons to the custody of the said Sheriffe, the King sent a Letter to the said Sheriffe, commanding that those who were committed to his custody by the Earl of Warwick, he should shew no grace to them, that is, they should not be bailed.

The Sheriffe notwithstanding this command lets some of those prisoners to bail, whereupon he was complained of in Parliament, that he had done against the Kings commandement, and he was condemned for it.

This was a Parliament, I wonder this should be done in Parlia­ment, and that it was not said there, That this commitment being [Page 64] done by the Kings commandment was not good; no, he was con­demned in Parliament, for it was one that did break the Statute of Westm. primo.

My Lord, the use that I make of this Record is this, It recites, that the Earl of Warwick committed divers, it might be that he did commit them by direction from the King; but the Record menti­oneth not so much, but it shews, that the King by Letters com­manded the Sheriffe, that he should shew those persons no grace, and yet he did; he was examined upon this, and by Parliament committed.

The next matter I will offer to your Lordships judgement, for the true exposition of the Law in this case, is the Book we call the Register, an authority respected, it is the foundation of all our Writs at the Common Law; I bring not the Book. Register fol. 77, &c.

In this Book there is one Writ saith thus, Rex, &c. Quod re­plegiar' fac' A. nisi fuerit per speciale mandatum domini Regis.

In what Writ is that, De homine replegiando?

Yea, in the Writ De homine replegiando, and there is another Writ directed to the Constable of Dover, in the very same words; by which it appears, that they that are imprisoned by the Kings command, non sunt replegiabiles.

F.N.B. 66. f.Master Fitzherbert, a grave Judge, and is in authority with us, perusing these Writs, expressed it in these words plainly; There are some cases wherein a man cannot have this Writ, although he be taken and detained in Prison; as if he be taken by the death of a man, or if he be taken by the commandement of the Kings Justi­ces, and mentions not chief Justice, which I beleeve is to be inten­ded not of the chief of the Court of Judicature, but of the chief Ju­stice of England, for there was such a one in those days: Thus my Lord you see the opinion of Master Fitzherbert in this case.

[Page 65] The next thing that I will shew your Lordship, is the opinion of Master Stamford, in his Pleas of the Crown, Fol. 72. where he sets down the Statute of Westminster primo, and then he addes, That by this appears in four cases at the Common Law a man is not replevisable, In those that were taken for the death of a man, or by the commandment of the King, or of his Justices, or of the Forest: And there he saith, That the commandment of the King is to be intended, either the commandment of his mouth, or of his Councell, which is incorporated to him, and speak with the mouth of the King.

My Lord, I shall desire no better Commentaries upon a Law then these reverent grave Judges, who have put books of Law in Print, and such Books as none, I beleeve, will say their judgements are weak.

The next thing I shall offer unto your Lordship is this, that I cannot shew with so great authority as I have done the rest, because I have not the thing it self by me; but I will put it to your Lord­ships memory, I presume you may well remember it, It is the re­solution of all the Judges, which was given in the four and thirti­eth of Queen Elizabeth, it fell out upon an unhappy occasion which was thus; The Judges they complain that Sheriffes and other Officers could not execute the processe of the Law as they ought, for that the parties on whom such processe shall be execu­ted were sent away by some of the Queens Councell, that they could not be found; the Judges hereupon petitioned the Lord Chancellor, that he would be a suitor to her Majesty that nothing be done hereafter. And thereupon the Judges were desired to shew in what cases men that were committed were not bailable, whether upon the commitment of the Queen or any other.

The Judges make answer, That if a man shall be committed by the Queen, by her command, or by the Privy Councell, he is not bailable: If your Lordship ask me what authority I have for this, I can onely say, I have it out of the Book of the Lord An­derson written with his own hand.

My Lord, I pray you give me leave to observe the time when [Page 66] this was done; It was in a time, and we may truly call it a good time, in the time of good Queen Elizabeth, and yet we see there was then cause of complaint; and therefore I would not have men think that we are now grown so bad (as the opinion is we are) for we see that then in those times there was cause of com­plaint, and it may be more then is now.

This, my Lord, was the resolution of all the Judges and Barons of the Exchequer, and not by some great one.

Now I will apply my self to that which hath been enforced by the Councell on the other side, which was the reason that the Sub­ject hath interest in this case.

My Lord I do acknowledge it, but I must say that the Soveraign hath great interest in it too. And sure I am, that the first stone of Soveraignty was no sooner laid, but this power was given to the Soveraign; If you ask me whether it be unlimited, my Lord, I say it is not the question now in hand: But the Common Law, which hath long flourished under the Government of our King and his Progenitors Kings of this Realm, have ever had that reve­rent respect of their Soveraign, as that it hath concluded the King can doe no wrong: And as it is in the Lord Berklies Case in Plowdens Com. 246. b. it is part of the Kings Prerogative that he can doe no wrong.

Title Travers 5.In the fourth of Edward the fourth, fol. 25. the King cannot be a disseisor; and so it is also in the Lord Berklies Case in 32 H. 8. Dier fol. 8.

The King cannot usurp upon a Patron, for the Common Law hath that reverent respect to him, as that it cannot conceive he will doe any injury.

But the King commits a Subject, and expresseth no cause of the commitment; what then? shall it be thought that there is no cause why he should be committed?

Nay my Lord, the course of all times hath been, to say there is no cause expressed, and therefore the matter is not ripe, and there­upon [Page 67] upon the Courts of Judicature have ever rested satisfied there­with, they would not search into it.

My Lords, there be Arcana Dei, & Arcana Imperii, and they that search too farre into them, and make themselves busier with them then their places do require, they will make themselves &c. I will say no more; but I shall be able to shew that there shall as much prejudice come to the Kingdome, if God direct not the heart of the King, which is in the hand of God, as the Rivers of waters: I say there may as much hazard come to the Common­wealth in many other things, with which the King is trusted, as in this particular there can accrew to the Subject.

If a Treason be committed as it was not long agoe, nor farre removed from our memories; since there was a Treason, and the Actors thereof fled, some to the Court of Rome, some to Brux­ells, when it was to be put in execution; the Treason being disco­vered one is apprehended upon suspition of it, and is put into the Tower, and there he lieth and thinketh the time very long, and I cannot blame him.

It may be he is innocent, and thereupon he brings a Habeas Corpus, and by vertue of that Writ he is brought hither, and will your Lordship think it fit or convenient to bail him, when the ac­cusation against him must come from beyond the Sea? I think you will rather so respect the proceedings of the State, as that you will beleeve these things are done with a cause, then inquire further of them.

Peradventure some great misdemeanour may be committed, and some of the parties make away, so as Proclamation cannot overtake them, and some are taken, it is fit that they that are in prison should be tried before the principall be taken.

I will give you an instance, that lately was put into my minde; There be some Prisoners in the Tower at this present, which were put in thither when they were very young: If they should bring an Habeas Corpus, they were imprisoned for State matters, will [Page 68] your-Lordship deliver them? No, in that the State doth not think it fit to send them back into their own Countries. You will esteem so reverently of the State for committing children, that you will beleeve that there is great reason of State so to doe, or else they would not doe it: Many inconveniences may follow if it should be otherwise. It may be divers men doe suffer wrongfully in prison, but therefore shall all prisoners be delivered? that were a great mischief.

No doubt but the Kings Power is absolute over his coins, if then he shall command his coin shall be turned to brasse or lea­ther, I confesse it were inconvenient, but if the King would do it, the answer that I can make is, that he would not undo the King­dome; but can your Lordship hinder it as being an inconvenience if he would doe it? the Cinque Ports are free for traffique for all his Subjects, but the King in his Cabinet understands there is dan­ger of Warre to come upon this Kingdome, thereupon he shuts the Ports that no man can goe out, shall the Merchant say this is injustice in the King? And as in this, so in many other particulars this may appear, but I will not goe too high: and therefore we are too wise, nay we are too foolish, in undertaking to examine mat­ters of State, to which we are not born. Now my Lord, I come to our Book cases, by which it appears what our King may doe, and nothing can be so against it, but he will not doe it; the King may pardon all Traitors and felons, and if he should doe it, may not the Subjects say, If the King doe this, the bad will overcome the good? but shall any say, the King cannot do this? no, we may onely say, he will not doe this?

The King may exempt men from the Office of Sheriffe, is not this inconvenient? and may it not be said, he may exempt ten in a Shire, and then the burthen of the Country shall rest upon the meaner sort of people? can any man say more to this, then that he will not do it?

Inheritances are to be decided upon triall; the King may ex­empt private men from being of a Jury, but if he exempt all men, who shall try our Causes? for it is to be presumed, that he will not doe it.

[Page 69] But to our Case; by the Statute of Magna Charta, no man shall be put out of his free-hold, &c. But if the King will doe it, must not the party that is so put out goe to the King by Petition? But you will say, it is a Petition of Right, and it may be these gen­tlemens is so; admit it be, yet when such a Petition comes to the King, must it not be answered with these words, Soit droit fait al parte? and when that the King will give that Warrant for it, then they must have it done, and not before.

And this may answer a perpetuall imprisonment, and God for­bid that this should be so: And now my Lord, I will trouble you no longer, but I will goe to presidents. Presidents I know prevail much, and rule in many cases, and if the presidents they cite were not mis-interpreted, I should think they had said a great deal.

But my Lord, I will answer their presidens with presidents; nay, I will shew your Lordship that the presidents which they have ci­ted are no presidents for them.

And my Lord, it is a dangerous thing for men in matters of weight to avouch presidents with confidence, when they make no­thing for them: for my Lord, presidents are now become almost Proclamations, for they already run up and down the Town, and yet they know but part of them, and not all, and I think if they knew all, men would be more modest.

But my Lord, I will now come to these presidents, where I may say they have not dealt freely with me, for they have shewed me many presidents more then they mentioned here, and it may be they have done the like unto your Lordship.

They alledged but eight presidents before your Lordship, but they have brought sixteen unto me: for these eight mentioned here, I will take them in order as they were cited, and answer.

The first president they cited was in Henry the eight, Rot. 9. one Harrison, we have the Record here to shew your Lordship, [Page 70] that he was committed for suspition of felony, which was ex­pressed in the Warrant; and then my Lord, this is clear, if the King, or the Lords of the Councell, will expresse any thing with­in your Lordships jurisdiction, there is good ground for your pro­ceedings: But when there is nothing expressed, whether you will judge what the cause of the Warrant is, I will leave to your Lord­ships judgement, but it appears this was the cause, and that he was delivered.

The next president was 22 H. 8. Rot. 57. and it was Parkers case; and it is true that his commitment appeared to be Per spe­ciale mandatum domini Regis, but it was also proposed to bee Pro pace & suspicione feloniae; and the signification of the com­mand was given by Master Peck of Cliffords Inne; but there the Warrant shews the cause of the commitment was for the peace and suspition of felony, and therefore he was bailed.

The next was in 40 Eliz. Wendons Case; but my Lord, that commitment was out of the Star-chamber by an ordinary course: Then they cited 8 Jac. Thomas Caesars Case, he indeed was com­mitted by Speciale mandatum domini Regis, and brought his Ha­beas Corpus, but the Roll saith remittitur; and is that a Warrant for them to say that he was delivered?

Then Sir Thomas Vernons Case was cited; and my Lord when we looked into the Records we found that he was committed for suspition of Treason; and he was tried for it and discharged.

The next president was Sir Thomas Monsons Case; I wonder that they did cite that, for he was committed by the Lords of the Councell indeed, but the ground of it was the suspition of the death of Sir Thomas Overbury, and he was discharged again by the Lords of the Councell. Certainly if you had known this, you would not have named this as a president for you.

The next was Reynors Case; he my Lord, was one of the Gun­powder-Treason, and yet there was a Warrant to discharge him too. And therefore what these presidents are, I shall submit to [Page 71] your Lordship, I must confesse when they are cited together, they make a great noise, but when they are examined severally they prove nothing.

My Lord, there is one more president of these that were cited here before your Lordship, and I hope that one shall be as none.

It was mentioned to be Lawrence Browns Case, 30 Eliz. I know not what it is, but it is like to be of the same value as the rest, Pro certis causis eos moventibus, &c.

And thus, my Lord, I have gone through those presidents that were alledged here before your Lordship; and now I will come to these presidents that were brought to me, and not mentioned here.

The first was John Brownings Case, in 21 H. 8. My Lord, these presidents came not to me before Saturday last about candle­lighting, and yesterday was no time fitting to search out presidents, and how could I then search for this?

The next was William Rogers Case of the same time. But the cause is expressed to be for suspition of felony, which is a cause within the Jurisdiction of this Court.

Newports Case was the like in 4 & 5 Phil. & Mar. and so was Thomas Lawrence Case, 9 Eliz. and Edw. Harecourts Case, 5 Eliz. which was for suspition of felony. Richard Beck­with, and not Barkwith as was cited, for they have mistaken both names and matters, was committed Per speciale mandatum domi­ni Regis; and the Record saith he was bailed. But it was by rea­son of a letter from the Lords of the Councell.

The cause of Peter mans commitment in the 4 and 5 of Phi­lip and Mary, appears to be for suspition of felony and robbery.

For Reynors case it is the same with Beckwith, and were both for one thing.

In the eighth of Henry the seventh, one Rog: Cherry was com­mitted [Page 72] Per mandatum domini Regis, and it was for a criminall case, and he was afterwards indicted and acquited and delivered.

And there is another president thereof, that saith, he was after­wards arraigned, condemned, and hanged, we have the Record of it.

And now my Lord, I will shew some presidents on the other side, where men have been committed by the commandement of the King, and by the commandement of the Councell, and have been delivered again by their directions: And of this kinde there be two in the Tower, that as they were committed by Warrant, so by Warrants again for their bailing they were delivered; the of­fences were against the Forest and for Murther.

In the fourth of Edward the third, M. 4. Edmond de Newport in Essex was indicted for an offence committed by him in the Fo­rest. And M. 7. John Fox was likewise indicted for an offence by him done in the Forest: and there be two Warrants to bail them.

M. 20. John Cobb was the like, and there was a letter from the King, Quod ponatur in Ballium usque ad proximam Assisam.

These were offences within Westminster primo, and there be severall Warrants to bail them.

The Clark of this Court hath many Records, by which it ap­peareth, that many have been committed by the command of the King and of the Queen, and of the Councell, and brought their Habeas Corpus; and the successe was, that many of them were committed to the same Prisons, and divers were committed to the Marshall of this Court; the reason was, for that ma­ny of them were to appear here, their causes being triable here, and it would have been a great trouble to send them back so farre to Prison as into the Countries, and therefore they were delivered to the Marshall of the Kings Houshold: again, many had their Trials in this Court, and some suffered, and some were delivered by speciall command as they were committed by speciall com­mand.

[Page 73] The number of these of this nature are infinite that have been in our times, we have found some forty presidents of men com­mitted out of the Chancery, and by the High Commission, for contempts, and some by the Barons of the Exchequer, and some in London that have been brought hither by Habeas corpus.

Of this I shall observe, that in the 11 Iacobi, there was a pri­vate Constitution in London made between the white Bakers, that they might live one by another, and the one not to invade the others liberties, and for contempt against this Ordinance, some were committed to prison, as Thomas Heanning, and Lit­tlepage, they had a Habeas corpus, and the cause was shewn to be by reason of the said Constitution, and thereupon the priso­ners were sent back to London to abide the Order of the Mayor; for my Lord, this Court hath been ever carefull not to examine the Decrees of the Chancery, or Court of Requests, but have on­ly looked whether the cause returned be within the jurisdiction of this Court nor have they called in question the by-laws and con­stitutions of London, but they send them back to the court of Justice that committeth them.

And hath this Court been so carefull of these inferiour Courts to this which is the chief, and when the King who is the head of Justice shall commit a man, shall not they be as carefull to do the like Justice to them? But when the King saith to them, the com­mitment was by my warrant and commandment, will you questi­on this? and whether this commitment be good or no? I hope you will not.

And now my Lords, touching some presidents which have been taken out of their own shewing, I shall make it appear, that as they have been committed by the King or Councel, so they had warrants also to discharge them: and they my Lords, are two ancient Records, the first is 7 H. 7. Rot. 6. the other Rot. 73. the first was Thomas Brown, he was committed to the Marshalseys, Per mandatum domini Regis, & aliis certis de causis: and afterwards the Records say, Dominus Rex quoad Chase relaxa­vit mandatum suum, and he was bailed and the rest lay by it.

[Page 74] My Lords, I will conclude, I could be infinite in this case in presidents, but enough is enough, your Lordship knoweth the weight of presidents, it is not enough to shew this was done, but also to shew the reason why it was done: I wil trouble your Lord­ship no longer, but if any man shall doubt whether that or any part thereof, be truly recited, which hath been said touching the Records or Statutes, I can say no more but that the statutes have been read, and the Records are ready sorted out to be seen by your Lordship.

I shall conclude (that I shall say) in this case to answer the fear rather then the just ground, of them that say that this may be a cause of great danger, with the words of Bracton, who spake not to flatter the present age, lib. 1. chap. 8. in the end, speaking of a writ for wrong done by the King to the Subject touching land, he saith these words, si judicium à Rege testatur (cum breve non currat contra ipsum) locus erat supplicationi quod factum suum corrigat & emendet, quod quidem si non fecerit satis suf­ficit ei ad poenam quod dominum expectet ultorem, nemo qui­dem de factis suis praesumat disputare, multo fortius contra fa­ctum suum venire.

My Lords, I englished it not, for I apply it not, any man may make use of it as he pleaseth; and so I conclude both for the point of Exception, and matter of the Return, which I referre to your Lordships judgement, whether all in the Return but these words Per speciale mandatum domini Regis, be not su­perfluous. And for the matter, whether these Gentlemen be bai­lable or not bailable, I have shewed your Lordship, that by the practise of all ages they are not bailable, but have beene remaunded back.

And therefore I pray your Lordship, that these Gentlemen may be remitted, and left to goe the right way for their delive­ry, which is by Petition to the King: whether it be a Petition of right or of grace I know not; it must be I am sure to the King, from whom I do personally understand that these Gentlemen did never yet present any Petition to him that came to his know­ledge.

Master Atturney, thus much we must say to you, you have taken a great deal of pains, you having had so short a time to consider of this case, it is a case of very grear weight and expectation, and we doe not intend that you shall expect long for our resolution, for that these Gentlemen are in prison, and desire no doubt to know where they must trust; I hope we shall resolve according to the reason of former times, and according to our consciences: but this I must tell you, as I did those that argued, you must bring in your presidents, for though wee have seen some of them, yet some of them we have not seen, therefore we desire that your servants or your selves doe attend, and bring unto us after dinner, those presidents you have mentioned on the Kings part, for we intend to meet this afternoon, and you shall have our opinions to morrow: and I must tell you on the other side, that this cause being of such weight, Councell should be wary, how they speak a­ny thing to inveagle the Court.

Touching such presidents as you urged in some of them, we know there is something urged which makes not for you, so you have omitted some materiall things to be shewn; I speake it to this purpose, not to prejudice the cause or to deliver my o­pinion, which becomes me not, but to shew, that Coun­sellors should be carefull, and this I dare say, there is matter in some of the presidents themselves that leads to another case if they were intirely cited.

The Term grows away, you shall not be long in expectation, we will meet this afternoon, and give you our opinions to morrow morning.

We desire that Master Atturney may bring the presidents of 34 Elizabeth with him.

I will shew you any thing, but my Lord, I shal be bold to claim the priviledge of my place, as the Kings Councell, when the Kings Atturney hath spoken, there ought to be no Arguments after that, but if you aske to see any thing you shall have it.

It is that we aim at, the truth and right may ap­pear, and not satisfie the one or the other part, but it is not desired to make use of it by way of reply, but for satisfaction onely.

My Lord, for the presidents I cited, I did think they should have been brought and read in the Court that your Lordship might see them.

You shall need no Apology, the Records and Presidents shall be brought to the Court, and read openly, for the Court will not wrong you, and you shall see the difference between them, and your re­lation of them, nor you must not wrong us with your written verities.

I am sure you here expect the resolution of the whole Court, as accordingly yesterday we told you you should have.

This is a case of very great weight and great expectation, and it had been fit we should have used more solemn arguments of it then now for the shortnesse of the time we can doe, for you have been long in prison, and it is fit you should know where­unto you should trust: I am sure you expect Justice from hence, and God forbid we should sit here but to doe Justice to all men according to our best skill and knowledge, for it is our oaths and duties so to doe, and I am sure there is nothing else expected of us. We are sworn to maintain all the Prerogatives of the King, that is one branch of our oath, and we are likewise sworn to administer Justice equally to all people.

We cannot I tell you deliver in solemn arguments and give the judgements of every one of us touching this case, as the weight thereof requireth; but we have met together, and we have duly and seriously considered of it, and of all that which hath been spoken of on either side, and we are grown to a reso­lution, and my brothers have injoined me to del [...]ver to you, the resolution of the whole Court: and therefore though it bee delivered by my mouth, it is the resolution of us all: I hope I shall not mistake any thing of their intention in my delivery, but if I doe they sit here by me, and I shall not take it ill if they right me.

Therefore I must tell you there hath been many points learn­edly argued at the Bar, which we shall not touch, or give our resolution upon, but bend our selves to the point in judgement here.

These three Statutes, as for example, the statute of Magna Charta, 25 E. 3. and 36 E. 3. and the statute of Westminster primo, & divers other statutes that have been alledged, & particu­larly [Page 78] disputed of, we all acknowledge and resolve, that they are good Laws, and that they be in force, but the interpretation of them at this time belongs not to us, for we are driven to a­nother point: and though the meaning of them belongs to the one way or the other, yet our judgement must be the same; for that which is now to be judged by us is this, whether one that is committed by the Kings authority, and no cause declared of his commitment, according as here it is upon this return, whether we ought to deliver him by bail, or to remaund him back againe? Wherein you must know this which your Councell will tell you, we can take notice onely of this return, and when the case ap­pears to come to us no otherwise then by the return, wee are not bound to examine the truth of the return, but the sufficiency of it, for there is a great difference between the sufficiency and the truth.

We cannot judge upon rumours nor reports, but upon that which is before us on record, and therefore the Return is exa­minable by us whether it be sufficient or not.

The exceptions which have been taken to this Return were two: the one for the form, the other for the substance.

For the form, whether it be formally returned or no, for it is not returned (as it is said) positively and absolutely, that they were committed by the King, but as it appears by a warrant from the Lords of the Councell, and then there seems to bee a contradiction in the return.

For first it saith, they were committed by the Kings command, and afterwards it alledgeth it to be by a warrant of the Lords of the Councell, and so it is repugnant.

Now we conceive that this is a positive and an absolute Re­turn, and so the reason is, that he first returns that they are detai­ned by the speciall command of the King, and if he had ceased there, it had been positive; now there follows that this was sig­nified to them by the Lords of the Councell, this is returned to [Page 79] ascertain the Court that he returned the cause truly, and to shew us that we should not doubt the verity of this return, & not to shew to us that he hath no knowledge of the cause but by the significa­tion of the Lords of the Councell, according to that case of the Bishop of Norwich, touching the excommunication, he must testifie his own knowledge, and not continetur in Archivis: so a Sheriffe must not return quod mandavi ball' &c. and he gives this answer, unlesse it be the Bailiffe of a Liberty that hath return of writs.

And so here if the Warden of the Fleet had returned that the Lords of the Councell had signified unto him that his prisoner was detained by the Kings commandment, that had been suffi­cient: but when he returns positively, at the first that is done by the Kings direction, hee shews afterwards that which should make it appear that he deals not falsly, which might have been omitted, but being mentioned that that is the scope of it, and not otherwise, the return is good and positive.

Now then to the other objections, because he speaks nothing of the caption why they were taken, you know it is the usuall re­turn of all Officers to answer the point in question; there is not one word in the Writ that demands the cause why they were taken, but why they are detained: so that the point in the Writ is sufficiently answered; for though sometimes it is neces­sary that the cause of the caption should be certified, yet some­times it is superfluous, but in our case the cause of the detention is sufficiently answered, which is the demand of the Writ, and therefore we resolve that the form of this Return is good. The next thing, is the maine point in Law, whether the substance or matter of the Return be good or no, wherein the substance is this, he doth certifie that they are detained in prison by the spe­ciall command of the King, and whether this be good in Law or no, that is the question.

To this purpose if you remember this point, I say you did not cite any Book or Case in print but many presidents, which I confesse are as strong as any Book Cases; for Book Cases I [Page 80] confesse are taken and selected out of the Records and Reso­lution of Judges, and that is it which is in our Books, though they be not so obvious for every eye, but are found out by pains and diligent search, and being produced are of the same and e­quall authority with our Book Cases, but this must be when Records are brought faithfully and entirely, so that the Court may adjudge of them.

Now the presidents you urged them to be so many, and so fully to the point, that wee may thereby see that it is good to hear what can be said on both sides, and for to heare all, and view the Records themselves, and therefore we required you to bring the Records to us, and you did so, and you brought us more then you mentioned here; and we have perused them all, that thereby we might see whether the Court be faithfully dealt withall or no, for though Counsellors may urge a Book for their own advantage, yet it is the duty of the Court to see and distinguish of their allegations, as the truth may appear.

This I told you yesterday, when I told you your presidents warranted not so much as you urge them for; for if you be re­membred you urge some presidents to be, that where men were committed by the King, or by the Lords of the Councell, and no cause expressed why they were committed, they were delive­red.

This is in effect our case, if the presidents affirm that when a man is committed by the Kings command, and no just cause is shewn, that upon such a generall Return the party shall ipso facto be delivered, for if the Return be not amended that he shall be discharged.

For although men come with prepared minds, yet the prepa­ration of every mans heart ought to submit to the truth, and by the presidents, you shall see if it be so as you have alledged; but this I dare affirm, that no one of the Records that you have ci­ted, doth inforce what you have concluded out of them, no not one; and therefore as you have cited Records and Presidents, Presidents shall judge this case.

[Page 81] I will shew you how they differ from the Records, you have concluded when the King hath committed one, and expres­seth not the cause, the Court hath delivered the party; but you shall see the contrary concluded in every Case that you have put, where the cause of the commitment hath been expressed, there the party hath been delivered by the Court, if the Case so requi­red, but where there hath been no cause expressed, they have ever been remaunded, or if they have been delivered, they have been delivered by the Kings direction, or by the Lords of the Coun­cell: If this fall now in proof, you see you have gathered fair con­clusions out of the Records, and that you may see that this is so, I have brought the Records with me of your own propounding, and I will goe through them from point to point, and then judge your selves of the case.

It is not materiall whether I call for them in that order as you produced them or no, and therefore I will take them as they are, first or last in the Kings Reign; They are in number many, in the time of Henry the seventh, Henry the eighth, Queen Mary, Queen Elizabeth, and King James his time.

I will shew you Sir Thomas Monsons Case in 14 Iacobi which was in all our memories.

I will begin with Pasche, in 8 H. 7. Roger Cherries Case, you vouched it to this purpose, That Cherry being committed by the Major of Windsor, was brought hither by a Habeas Corpus, and the Major he returns that he was committed Per mandatum domi­ni Regis, and that thereupon he was delivered; but you shall find by the Record that he was committed by the Major at the suit of the King for felony, for which he was afterwards indicted, brought to a triall, and then discharged.

Vide this Record in Master Seldens Argument in the Parlia­ment, 3 & 4 Caroli Regis, and so all the rest after mentioned.

The next was 19 H. 7. Vrswicks Case; and you say he was brought hither by the Warden of the Fleet, who as you said, re­turned [Page 82] that he was committed Per mandatum domini Regis, and you said he was discharged, but he was bailed upon the Lords Letter, and brought hither to record his return, for he was bound to appear here, and then he was discharged; but that was the cause of his bringing hither, vide the Records as aforesaid.

The next was Hugh Pains Case, in 21 H. 7. and that you ur­ged thus, you say that he was brought hither by a Habeas Corpus, by the Warden of the Fleet, who returned that he was committed by the Kings Councell, and he was bailed: Now we finde that he was committed by them for suspition of felony; and that cause was declared, and he was bailed; so that you see there was a cause expressed. Vide the Record aforesaid.

The next is 2 H. 8. Thomas Beckley and Robert Harrisons Case; these you said were brought in hither by George Earle of Shrewsbury, and Thomas Earle of Surrey; and the Return was, that they were committed by the command of Hen. 7. and that they were bailed; but you shall finde that they were committed for suspition of felony; and that Harrison was committed by Hen. 7. but it was for Homicide upon the Sea, and so the cause is expressed, and afterwards he was bailed. The next was in 22 H. 8. John Parkers Case; you urged it to this purpose, That he was brought hither by a Habeas Corpus by the Sheriffs of London, and they you said returned, that he was committed Per speciale man­datum domini Regis nunciatum, &c. by Robert Peck, &c. the cause why you urged this was twofold; first, that he was commit­ted by the Kings command, and yet he was bailed: secondly, that he was committed Per mandatum domini Regis nunciat' per such a one: But you shall finde by the Record that he was committed for the security of peace, and for suspition of felony, and that was the cause for which he was bailed, for he is bailable by Law when such a cause appears. Vide the Record as afore.

Goe on to the next, and that is Peter Mans Case in the 3 & 4 Philip and Mary, you urged that to this purpose, You say, that he was brought by the Keeper of the Gatehouse, and you say, that [Page 83] he returned, that he was committed by the command of the King and the Queens Councell, and thereupon he was bailed; but you shall finde that he was committed for suspition of felony and robbery, and thereupon he was bailed.

The next is in the 4 & 5 Phil. & Mar. Edward Newports Case; you said that the Constable of the Tower brought him hi­ther, and returned that he was committed by the Councell of the King and the Queen, and that he was bailed, but you see the Re­cords that he was committed for suspition of coyning, which is bailable onely in this Court, and therefore it was removed hither; yet this I must tell you, that it is true in one Record, it appears not but as you have cited it; but you may see how it is supplied by another Record, and the cause, and he was delivered by a Pro­clamation. Vide both Records in Master Seldens Argument, as aforesaid.

He could not be delivered by Proclamation unlesse it was for a criminall cause.

Observe another thing in the Book, he is brought hither by the speciall command of the Councell, so that although it appears not in the Record, yet if the King or Lords mean to have him tried for his life, he is brought hither: Then you cited Robert Constables case, 9 Eliz. and you said he was brought hither by the Lieu­tenant of the Tower, who returned that he was com­mitted by the Lords of the Councell, and thereupon he was bailed; but you shall finde that he came hither to plead his pardon, and he was pardoned.

Vide the Record as aforesaid.

Thomas Laurence Case in 9 Eliz. is the same with Constables, for it appears that he was brought hither to [Page 84] plead his pardon, and he was pardoned, and that was the cause he was brought hither.

The next was in 21 Eliz. John Brownings case; it is true he was committed by the Lords of the Councell, and he was brought by a Habeas Corpus to the chamber of Sir Christopher Wray, Chief Justice, and he was there bailed.

The next was 33 Eliz. William Rogers; and he you said was brought hither by the Keeper of the Gatehouse, who returned, that he was committed to him by the Lords of the Councell, yet there was a cause expressed, and that was for suspition of coining of money.

The next was in 39 Eliz. Lawrence Brown, you say that he was brought hither by the Keeper of the Gate­house, who returned that he was committed for divers causes, moving the Lords of the Councell, and there­upon he was delivered; but the Record is, that the Re­turn also was for suspition of Treason, and although the suspition of Treason appears not in one Record, yet there is another for it: Here you see cause of his com­mitment, and that he was bailed, but it was by the Kings command, Vsque Octabis Michaelis, vide the Re­cord.

I blame not you that are of Councell with these Gentlemen for urging this Record, for this Cause is not expressed in your Record, but that he was commit­ted by command of the Councell onely, but he was committed for suspition of felony with Sir Thomas Smith: Vide the Record.

The next is in 40 Eliz. Edward Harecourts Case, and Thomas Wendens Case; I bring them together because they are both in one year; in the 40 of Eliz. Edward [Page 85] Harecourt you say was committed to the Gatehouse by the Lords of the Councell, and the Return was that he was committed by them Certis de causis ipsos moventibus ignotis, and he was bailed.

Here is another in the same time committed to the same prison by the Lords in the Star-chamber, it was Thomas Wendens case, and he you say was committed by them Certis de causis, (as the other was) and that he was bailed; but you shall finde in the margin of the Roll, Traditur in ball' ex assensu Concilii dominae Reginae; and that was the relation of the Queens Atturney, so that you see how that president fits you.

The next are two more of the Gatehouse, Beckwith and Reyner, they, you said, were committed to the Gate­house, brought their Habeas Corpus, and the Keeper of the Gatehouse returned, that they were committed by vertue of a Warrant from the Archibishop of Canterbu­ry, Henry Earl of Northampton, Lord Warden of the Cinque Ports, and others of the Privy Councell, re­quiring the said Keeper to receive the said Beckwith and Reyner into his charge, untill they should have further order from them in that behalf; and you say they were bailed.

Vide the Record in Master Seldens aforesaid.

Now you shall see the direction to bail him; he was bailed by the direction from the Lords of the Coun­cell, as appears by their Letter. Vide as aforesaid.

Now we come to Caesars Case in 8 Jacobi, you urged that to this purpose; you say he was committed to the Marshalsey, who upon a Habeas Corpus returned, That he was committed Per speciale mandatum domini Regis, and you say, because the Return was so generall, the [Page 86] rule of the Court was, that it should be amended, or else he should be discharged, I will open to you what the reason of that rule was, for that notice was taken, that the Keeper of the Prison had used a false Return, and had usurped the name of the King, I know not how, but the commitment was not by the Kings command; and that was the cause that he had day given him to amend his Return, but his body was remaunded to Prison, as you shall see the Record. Vide the Record, &c.

The last president that you used, was that of Sir Tho­mas Monson, and that was so notorious, and so late, that I marvell that was offered at all, it made me jealous of all the rest, that was so notorious; and now I have omit­ted none you brought me. Vide the Record.

By this Record you may see that he was committed by divers Lords of the Councell, and it was for the suspition of the death of Sir Thomas Overbury; and it is notoriously known, that he was brought hither to plead his pardon.

I will not tell you that you read all these presidents, for you read none, but urged them here before us, but we required you to bring them to us, and they were brought to us, Master Corbet brought them all but one, and that Master Noye brought, it was in 22 H. 8. Par­kers Case: And one Master Holborn a man whose face I never saw before, nor is he now in mine eye, did ye­sterday bring us one president to this purpose, and it was Sir John Brockets Case in 1 Jac. he was committed to the Gatehouse, and upon a Habeas Corpus the Keeper re­turned that Commiss' suit per Warrantum Dominorum de [Page 87] Privat' Concilio cujus tenor sequitur in haec verba. viz. To the Keeper of the Gatehouse, &c. vide Master Sel­dens presidents; but see upon what ground he was bai­led, it was a speciall command of the Lords of the Councell. Vide the Record.

These are all the Records and presidents that you mi­nistred unto us in your Argument, and that were deli­vered unto us, for I have dealt faithfully with you, and now you have seen them in the Cases, I would have any man judge of the conclusion which you made the last day, That when a man is committed, and the case not known, but it is certified to be by the Kings speciall commandment, and the Habeas Corpus is procured by your selves and speeded by the King, that we can dis­charge or bail them.

Then the presidents are all against you every one of them, and what shall guide our judgements, since there is nothing alledged in this case but presidents? that if no cause of the commitment be expressed, it is to be pre­sumed to be for matter of State, which we cannot take notice of; you see we finde none, no not one, that hath been delivered by bail in the like cases, but by the hand of the King or his direction.

If we should cease here, you see you have shewn no­thing to satisfie us, and we know that you that be of their Councell, will satisfie your Clients therein.

But you shall see that we have taken a little pains in this Case, and we will shew you some presidents on the other side; and I beleeve there be five hundreth of this nature that may be cited to this purpose, I shall go retro­grade and go backwards in citing the years of the presi­dents that I shall mention.

[Page 88] I will begin with 7 H. 8. Edward Page, he was brought hither by the Steward of the Marshalseys, who returned that he was committed Per mandatum domini Regis, and he was remitted, so that he was not delivered upon this generall Return, but he was remaunded.

The next was 12 H. 7. there you shall see a president where one was committed, his name was Thomas Yow, he was committed for felony, and also Per mandatum domini Regis, and the Kings Atturney came hither and released the Kings command, and thereupon he was bailed.

It is all one with Parkers Case.

No, for here were two causes of the commitment, Hubbert was then the Kings Atturney, and he signified in open Court that he was discharged by the Kings command, and Postea traditur in ball' pro suspicione fe­loniae.

The next was Humphrey Booths, 9 H. 7. Rot. 14. you shall finde it much to that purpose as the other was be­fore; he was imprisoned for an outlawry, and by the commandment of the King also, and after that the re­lease of the Kings commandment was certified to the chief Justice, he was thereupon discharged. Vide the Record.

The next is 7 H. 7. Thomas Brown, Iohn Rawlings, and Robert Sherman and others, were committed Per man­datum domini Regis, and for felony, outlawry, and other causes, as appears by the Records, and after the King releaseth his commandment, and that the outlawry should be reversed, and for the felony he was bailed. Vide the Record.

[Page 89] So that you may see the offences mentioned in the Warrant for the commitment were triable here, and when the King releases his commandment they were bailed for the rest, but they that were committed by the commandment of the King were released by the King.

In 7 H. 7. the Cases of William Bartholmew, Henry Carre, and others, is to the same effect, by all which you may see, that when the King releaseth his command­ment, they were bailed for the rest, and as they were committed by the Kings commandment, so they were released by the Kings command.

Now here I shall trouble you with no more presi­dents, and you see your own what conclusion they pro­duce. And those strong presidents alledged on the other side, we are not wiser then they that went before us; and the common custome of the Law is, the Com­mon Law of the Land, and that hath been the continu­all common custome of the Law, to which we are to submit, for we come not to charge the Law, but to sub­mit to it.

We have looked upon that president that was men­tioned by Master Atturney. The resolution of all the Judges of England in 34 Eliz. we have considered of the time, and I think there were not before, nor have been since more upright Judges then they were, Wray was one, and Anderson another: In Easter Term this was certified under the hands of all the Judges of England, and Barons of the Exchequer in a duplicate, whereof the one was delivered to the Lord Chancellor, and the other to the Lord Treasurer, to be delivered to the Queen. We have compared our copies, not taking them the one from the other, but bringing them: we have long had [Page 90] them by us together, and they all agree word for word, and that which M. Atturney said, he had out of Judge Andersons Book, and it is to this purpose, to omit other things, That if a man be committed by the command­ment of the King, he is not to be delivered by a Habeas Corpus in this Court, for we know not the cause of the commitment. Vide this at the latter end of the first part of Master Seldens Argument as aforesaid.

But the Question now is, Whether we may deliver this Gentleman or not, you see what hath been the pra­ctice in all the Kings times heretofore, and your own Records, and this resolution of all the Judges teacheth us, and what can we do but walk in the steps of our fore­fathers? If you ask me which way you should be deli­vered, we shall tell you, we must not counsell you.

Master Atturney hath told you that the King hath done it, and we trust him in great matters, and he is bound by Law, and he bids us proceed by Law, as we are sworn to do, and so is the King; and we make no doubt but the King if you seek to him, he knowing the cause why you are imprisoned, he will have mercy, but we leave that. If in Justice we ought to deliver you we would do it, but upon these grounds, and these Records, and the presidents and resolutions we cannot deliver you, but you must be remanded. Now if I have mista­ken any thing, I desire to be righted by my brethren, I have indeavoured to give the resolutions of us all.