The sovereigns prerogative and the subjects priviledge discussed betwixt courtiers and patriots in Parliament, the third and fourth yeares of the reign of King Charles : together with the grand mysteries of state then in agitation.

The Argument made by M^r Littleton at the com∣mand of the House of Commons, out of Acts of Par∣liament and Authorities of Law expounding the same, at the first Conference with the Lords concern∣ing the Liberty of the Person of every Free-man.

My Lords,

UPon the occasions delivered by the Gentleman that last spake, 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 solemn Arguments as single propositions of doubts and answers, to the end no scruple might remaine in any mans breast unsatisfied, they have upon a full search and cleer understanding of all things pertinent to the Question, unanimously declared That no Free-man ought to be committed or de∣tained in prison, or otherwise restrained by the command of the King, or the Privie Councell, or any other, unlesse some cause of the com∣mitment, detainer or restraint be expressed, for which by Law he ought to be committed, detained or restrained. And they have sent me with some other of their Members to represent unto your Lord∣ships the true grounds of such their resolutions, 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 Tem∣porall, and the Commons, by severall Acts of Parliament. The autho∣rity whereof is so great, that it can receive no answer, save by interpre∣tation or repeal by future Statutes. And these that I shall mind your Lordships of are so direct to the point, that they can bear no other ex∣position 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 17 yeare of King Iohn, and renewed in the 9 yeare

of King Hen. 3. and since confirmed in Parliament above 30 times. Cap. 29. the words are these. Nullus liber homo capiatur, vel impriso∣netur, aut diseisietur de libero tenemento suo, vel libertatibus, vel liberis consuetudinibus suis, aut utlagetur, aut exuletur, aut aliquo modo destruatur; nec super eum ibimus, nec super eum mittemus, nisi per legale judicium pari∣um suorum, vel per legem terrae. These words Nullus liber homo, &c. are expresse enough: yet it is remarkable that Matthew Paris an Authour of speciall credit, doth observe fo. 432. that the Charter of the 9. H. 3. was the very same as that of the 17. of King Iohn, in nullo dissimiles, are his words; and that of King Iohn he setteth down verbatim fol. 342. and there the words are directlie Nec eum in carcerem mittemus: and such a corruption as is now in the print might easily happen 'twixt 9. H. 3. and 28. E. 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 Ju∣ry, Peeres for Pares, ordinary Jurours 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 Nation to be by due processe of Law, and not the Law of the Land generally; otherwise it would compre∣hend Bond-men, whom we call Villains, which are excluded by the word liber; for the generall Law of the Land doth allow their Lords to imprison them at pleasure without cause, wherein they only differ from the Free-men, in respect of their persons, who cannot be impri∣soned without a cause. And that this is the true understanding of those words per legem terrae, will more plainly appear by divers other Sta∣tutes that I shall use, which do expound the same accordingly.

And although the words of this Grand Charter be spoken in the third person, yet they are to be understood of Suites betwixt partie and partie, at least not of them alone, but even of the Kings Suites a∣gainst his Subjects; as will appear by the occasion of the getting of that Charter, which was by reason of the differences betwixt those Kings and their people: and therefore properlie to be applyed to their power over them, and not to ordinarie questions 'twixt Subject and Subject.

The words per legale judicium parium suorum immediately precede∣ing the other per legem terrae, are meant of trialls at the Kings Suit, and not at the prosecution of a Subject. And therefore if a Peer of the Realm be arraigned at the Suit of the King upon any Indictment of Murther, he shall be tried by his Peeres, that is Nobles: But if he be appealed of Murther by a Subject, his triall shall be by an ordinarie Jury of 12 Free-holders; as appeareth in 10. Edw. 4. It is said such is the meaning of Magna Charta. By the same reason therefore as per judicium parium suorum extends to the Kings Suit, so shall these words per legem terrae.

And in 8. E. 2. Rot. Parliam. num. 7. there is a Petition, that a

Writ made under the Privie Seal went to the Guardians of the Great Seal to cause lands to be seized into the Kings hands; by force of which there went a Writ out of the Chauncery to the Exchequer to seize a∣gainst the forme of the Grand Charter, That the King or his Ministers shall out-law no man of Free-hold without reasonable Judgement: And the partie was restored to his land. Which sheweth the Statute did extend to the King.

There was no invasion upon this personall liberty, till the time of King Edw. the 3. which was soon restrained by the Subject. For in the 5. E. 3. cap. 9. it is ordained in these words; It is enacted that no man from henceforth shall be attached by any accusation, nor forejudged of life or limbe, nor his lands, tenements, goods nor cattells seized into the Kings hands against the forme of the great Charter. And the Law of the Land 25. E. 3. cap. 4. is more full, and doth expound the words of the Grand Charter, and it is thus; Whereas it is contained in the great Charter of the Franchises of England, That no Free-man be imprisoned, or put out of his Free-hold, nor of his Franchise nor Free Custome, unlesse it be by the Law of the Land: it is accorded, assented and established, that from henceforth none shall be taken by petition or suggestion made unto our Lord the King, or to his Councell, unlesse it be by indictment or presentment of his good and lawfull peo∣ple of the same neighbourhood where such deeds be done, in due man∣ner, or by processe made by Writ originall at the Common Law; nor that none be out of his Franchises or of his Free-hold, unlesse he be due∣ly brought into answer, and forejudged of the same by course of Law: and if any thing be done against the same, it shall be redressed and held for null.

Out of this Statute I observe that what in Magna Charta and the Pre∣amble of this Statute is termed by the Law of the Land, is in the body of this Act expounded to be by processe 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 this Law was made upon the commitment of divers to the Tower, no man yet knoweth for what.

The 28. E. 3. is yet more direct, (this Libertie being followed with fresh suite by the Subject;) where the words are not many but very full and significant: That no man, of what estate or condition he be, shall be put out of his lands or Tenement, nor taken nor imprisoned, nor disinherited, nor put to death, without he be brought into answer by due processe of the Law. Here your Lordships see the usuall words of the Law of the Land are rendered by due processe of the Law.

36. E. 3. Rot. Parliam. num. 9. amongst the Petitions of the Commons, one of them being translated into English out of the French, is thus, First that the great Charter, and the Charter of the Forrest, and the o∣ther Statutes made in his time and the time of his Progenitours, for the profit of him and his Commonaltie, be well and firmly kept, and put

in due execution, without putting disturbance, or making arrest contra∣rie to them by speciall command, or in any other. The answer to the Petition, which makes it an Act of Parliament, is, Our Lord the King by the assent of the Prelates, Dukes, Earles, Barons, and the Com∣monaltie, hath ordained and established that the said Charters and Statutes be held and put in execution according to the said Petition; which is, that no arrest should be made contrarie to the Statutes by spe∣ciall 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 books that are extant.

36. E. 3. Rot. Parliament. num. 20. explaineth it further: for there the Petition is, Whereas it is contained in the Grand Charter and other Statutes, that none be taken or imprisoned by speciall command with∣out indictment, or other due processe to be made by the Law; yet of∣tentimes it hath been and still is, that many are hindred, taken and im∣prisoned without indictment, or other processe made by the Law up∣on them, as well of things done out of the Forrest of the King, as for other things; That it would therefore please our said Lord to com∣mand those to be delivered which are so taken by speciall Command, against the forme of the Charters and Statutes aforesaid. The answer is, The King is pleased, if any man find himself grieved, that he come and make his complaint, and right shall be done unto him.

37. E. 3. cap. 18. agreeth in substance, when it saith, Though that it be contained in the great Charter, that no man be imprisoned, nor put out of his Freehold without processe of the Law; neverthelesse divers people make false suggestions to the King himself, as well for malice as otherwise, whereat the King is often grieved, and divers of the Realme put in damage, against the forme of the said Charter. Wherefore it is ordained that all they which make such suggestions be sent with the suggestions before the Chauncellour, Treasurer, and the grand Councell; and that they there find suretie to pursue their sug∣gestions, and incurre the same paine that the other should have had (if he were attainted) in case that their suggestions be found evil; and that then processe of the Law be made against them, without being ta∣ken and 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 processe of the Law.

42. E. 3. ca. 3. At the request of the Commons by their Petitions put forth in this Parliament, to eschew mischiefs and damage done to divers of his Commons by false accusers, which oftentimes have made their accusation more for revenge and singular benefit, then for the profit of the King, or of his people, which accused persons some have been taken, and sometimes caused to come before the Kings Councell by writ and otherwise upon grievous paine against the Law; It is assented and accorded, for the good governance of the Com∣mons,

that no man be put to answer without presentment before Ju∣stices, or matter of Record, or by due processe, or writ originall, ac∣cording to the old Law of the Land. And if any thing henceforth be done to the contrary, it shall be void in Law, and holden for errour.

But this is better in the Parliament Roll; where the Petition and An∣swer, which make the Act, are set down at large, 42. E. 3. Rot. Parlia∣ment. num. 12.

The Petition.

Because that many of the Commons are hurt and destroyed by false accusers, who make their accusations more for their revenge and par∣ticular gaine, then for the profit of the King or his people, and those that are accused by them some have been taken, and others have been made to come before the Kings Councell by writ or other Command∣ment of the King upon grievous paines, contrary to the Law; That it would please our Lord the King and his good Councell, for the just go∣vernment of his people, to ordain that if hereafter any accuser propose any matter for the profit of the King, that the same matter be sent to the Justices of the one Bench or the other, or the affaires to be enquired and determined according to the Law: And if it concern the accuser or partie, that he take his suit at the Common Law; and that no man be put to answer without presentment before Justices, or matter of Re∣cord, and by due processe & originall writ according to the ancient Law of the Land. And if any thing henceforward be done to the contrarie, that it be void in Law, and held for errour.

Here by due processe and originall writ according to the Law of the Land, is meant the same thing as per legem terrae in Magna Charta, and the abuse was they were put to answer by the commandment of the King.

The Kings Answer is thus.

Because that this article is an article of the Grand Charter, the King wills that this be done as the Petition doth demand.

By this it appeareth that per legem terrae in Magna Charta, is meant by due processe of the Law.

Thus your Lordships have heard Acts of Parliament in the point. But the Statute of Westm. the 1. ca. 15. is urged to disprove this opini∣on, where it is expresly said, That a man is not replevisable who is committed by the command of the King, without any cause shewn, which is therefore sufficient to commit a man to prison. And because the strength of the Argument may appeares and the answer be better understood, I shall read the words of the Statute, which is thus.

And for as much as Sheriffs and others have taken and kept in prison such as were replevisable, and have let out by plevin such as were not replevisable, because they would gaine of the one partie, and

grieve the other; And forasmuch as before this time it was not cer∣tainly determined what persons were replevisable and what not, but only those that were taken for the death of a man, or by Command∣ment of the King, or of his Justices, or for the Forrest; It is provided, and by the King commanded, that such prisoners as were before out∣lawed, and they which have abjured the Realme, Provors, and such as be taken with the manner, and those which have broken the Kings pri∣son, Thieves openly defamed and known, and such as be appealed by Provors so long as the Provor be living, if they be not of good name, and such as be taken for burning of houses, felloniously done, or for false money, or for counterfeiting the Kings Seal, or persons excommu∣nicated taken at the request of the Bishops, or for manifest offences, or for Treason touching the King himself, shall be in no case replevisable by the common writ or without writ.

But such as be indicted of larceny by inquests taken before Sheriffs or Bailiffs by their office, or for light suspicion, or for petty-larceny that amounteth not to above the value of 12 pence, if they were not guilty of some other larceny aforetime, or guilty of receipt of fellons, or of com∣mandment or force or of aid in felony done, or guilty of some other trespasse for which one ought not to loose life or member, and a man appealed by a Provor after the death of a Provor, if he be no common thief, or defamed; shall from henceforth be let out by sufficient suretie, whereof the Sheriff will be answerable, and that without giving ought of their goods.

And if the Sheriff or any other let any go at large by suretie that is not replevisable, if he be Sheriff or Constable, or any Bailiffe of fee which hath keeping of prisoners, and thereof be attainted, he shall loose his fee and office for ever.

And if the under-Sheriff, Constable or Bailiffe, of such as have fee for keeping of prisons do it contrarie to the will of his Lord, or any other Bailiffe being not of fee, they shall have three yeares imprisonment, and make Fine at the Kings pleasure. And if any hold prisoners replevisa∣ble after they have offered sufficient sureties, he shall pay a grievous a∣mercement to the King. And if he take any reward for the deliverance of such, he shall pay double to the prisoner, and also shall pay a grie∣vous amercement to the King.

The Answer.

It must be acknowledged that a man taken by the Commandment of the King is not replevisable, for so are the expresse words of this Sta∣tute. But this maketh nothing against the Declaration of the House of Commons, for they say not that the Sheriff may replevy such a man by sureties (scilicet Manucaptores) but that he is bailable by the Kings Court of Justice.

For the better understanding whereof, it is to be known that there is a difference betwixt replevisable, which is alwayes by the Sheriff up∣on

pledges or sureties given, and bailable, which is by Court of Record, where the prisoner is delivered to his Baile, and they are his Gaolers, and may imprison him, and shall suffer for him bodie for bodie, as ap∣peareth 33. and 36.83. in the title of Mainprize p. 12.13. where the difference betwixt Baile and Mainprize is expresly taken.

And if the words of the Statutes themselves be observed, it will ap∣peare plainly that it extends to the Sheriffs and other inferiour Officers, and doth not bind the hands of the Judges.

The Preamble, which is the key which openeth the entrance into the meaning of the makers of the Law, is,

Forasmuch as Sheriffs and others which have taken and kept in pri∣son persons detected of fellony. Out of these words I observe that it nominateth Sheriffs, and then if the Justices should be included, they must be comprehended under the generall word other, which doth not use to extend to those of a higher rank, but to inferiours: for the best by all course is first to be named; And therefore if a man bring a Writ of Customes and Services, and name Rents and other things, the ge∣nerall shall not include Homage, which is a personall service and of a higher nature; but it shall extend to ordinarie annuall services, 31. E. 1. Droit. So the Statute of 13. Eliz. cap. 10. which beginneth with Col∣ledges, Deanes and Chapters, Parsons, Vicars, and concludes with these words, and others having spirituall promotions; shall not comprehend Bishops, that are of a higher degree; as appeares in the Archbishop of Canterburies Case reported by S^r Edw. Coke lib. 2. fo. 46.

And thus much is explained in this verie Statute towards the end, when it doth enumerate those were meant by the word other, name∣ly under-Sheriffs, Constables, Bailiffs.

Again the words are Sheriffs and others which have taken and kept in prison: now every man knoweth Judges do neither arrest nor keep men in prison, that is the office of Sheriffs, and other inferiour Mini∣sters: therefore this Statute meant such only, and not Judges.

The words are further, that they let out by replevine such as were not replevisable; that is the proper language for a Sheriff. Nay more ex∣presse afterward in the bodie of the Statute, that such as are there men∣tioned shall be in no case replevisable by the common writ (which is de homine replegiando, and is directed to the Sheriff) nor without writ which is by the Sheriff ex officio. But that which receives no answer is this;

That the command of the Justices who derive their authorities from the Crown, is there equall as to this purpose with the command of the King. And therefore by all reasonable construction it must needs relate to Officers subordinate to both, as Sheriffs, under-Sheriffs, Bailiffs, Constables and the like. And it were an harsh exposition to say that the Justices might not discharge their own Command, and yet that reason would conclude as much. And that this was meant of the Sheriffs and other Ministers of Justice, appeareth by the recitall 27. E. 1. cap. 3.

And likewise by Fleta, a Manuscript so called because the Authour lay in the Fleet when he made the book: for he lib. 2. cap. 52. in his cap. of Turnes and the views of the Hundred Courts in the Countrie, sets down the Articles of the Charges that are there to be enquired of; amongst which one of them is de replegiabilibus injuste detentis, or irre∣plegiabilibus dimissis: which cannot be meant of not bailing by the Ju∣stices; for what have the inferiour Courts in the Countrey to do with the Acts of the Justices?

And to make it more plain, he setteth down in this Chapter (that concernes Sheriffs only) the very Statute of Westm. cap. 15. which he translates verbatim out of the French into the Latin, save that he renders taken by the command of the Justices thus, per Iudicium Iustitiariorum: and his Preface to the Statute plainly sheweth, that he understood it of replevine by Sheriffs, for he saith, Qui debent per plegios dimitti, qui non, declarat hoc Statutum; and per plegios is before the Sheriff.

But for direct authoritie, it is the opinion of Newton the Chief Ju∣stice in 22. H. 6.46. where his words are these, It cannot be intended that the Sheriff did suffer him to go at large by mainprize, for where one is taken by the writ of the King or the command of the King, he is irreplevisable; but in such case his friends may come to the Justices for him, if he be arrested, and purchase a supersedeas. So he declares the very Question, That the Sheriffs had no power, but that the Justices had power to deliver him that is committed by the Kings Command. And both the ancient and modern practise manifests as much; for he that is taken for the death of a man, or for the Forrest, is not replevisable by the Sheriff, yet they are ordinarily bailed by the Justices, and were by the Kings writs directed to the Sheriffs in the times of E. 1. and E. 2. as appeares in the Close Rolls, which could not be done if they were not bailable. And it is every dayes experience that the Justices of the Kings Bench do baile for murther, and for offences done in the Forrest, which they could not do if the word irreplevisable in Westm. 1. were meant of the Justices as well as of the Sheriffs.

For the authorities which have been offered to prove the contrarie, they are in number 3. The first is 21. E. 1. Rot. 2. which also is in the book of the Pleas in Parliament at the Tower 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 Ste∣phen Rubar the Sheriff of the Counties of Leicester and Warwick, was questioned for that he had let at large by sureties one William the son of Walter le Parsons, against the will and command of the King, when as the King had committed him by Letters under his Privie Seal, that he should do no favour to any man that was committed by the com∣mand of the Earle of Warwick, as that man was. Whereunto the Sheriff answered, that he did it at the request of some of the Kings houshold upon their Letters: and because the Sheriff did acknowledge the receipt of the Kings Letters, thereupon he was committed to prison, accord∣ing to the forme of the Statute.

To this I answer, that he was justly punished, for that he is expresly bound by the Statute Westm. 1. which was agreed from the beginning. But this is no proof that the Judges had not power to baile this man.

The next Argument is 33. H. 6. in the Court of Common Pleas fol. 28.29. where Robert Poinings Esq was brought unto the Barre upon a Capias, and it was returned that he was committed per duos de Consilio (I believe it is misprinted for Dnos de Consilio, i. e. Dominos de Consilio, which is stongest against that which I maintain) pro diversis causis Regem tangentibus, and he made an Attorney there in an accusation, whence is inferred that the return was good, and the partie could not be delivered.

To this the Answer is plain.

• 1. No opinion is delivered in that book whether he were delivered or bailed, or not.
• 2. It appeares expresly that he was brought thither to be charged in an accusation of debt at another mans Suit, and no desire of his own to be delivered or bailed; and then if he were remanded, it is no way materiall to the question in hand.

But that which is most relied upon is, the opinion of Stamford in his book of the Pleas of the Crown lib. 2. ca. 18. fol. 72.73. in his cap. of Mainprize, where he reciteth the Statute of Westm. 1. cap. 15. and then saith thus, By this Statute it appeareth that in 4 cases at the Common Law a man was not replevisable, to wit, those that were taken for the death of a man, by command of the King, or of his Justices, or for the Forrest. Thus farre he is most right. Then he goeth on and saith, As to the Command of the King, that is understood of the command of his own mouth, or his Councell which is incorporated unto him, and speake with his mouth, or otherwise every writ of Capias to take a man, which is the Kings command, would be as much. And as to the com∣mand of the Justices, that is meant their absolute command: for if it be their ordinarie commandment, he is replevisable by the Sheriff, if it be not in some of the Cases prohibited by the Statute.

The answer that I give unto this is, That Stamford hath said nothing whether a man may be committed without cause by the Kings com∣mand, or whether the Judges ought not to baile him in such case; but only that such a one is not replevisable: which is agreed, for that be∣longs to the Sheriff. And because no man should think he meant any such thing, he concludes his whole sentence touching the command of the King and his Justices, That one committed by the Justices ordi∣narie command is replevisable by the Sheriff. So either he meant all by the Sheriff, or at least it appeares not that he meant that a man committed by the King or the Privie Councell without cause is not bailable by the Justices, and then he hath given no opinion in this case. What he would have said if he had been asked the question, cannot be known; neither doth it appeare by any thing he hath said, that he meant any such thing as would be inferred out of him.

And now, my Lords, I have performed the command of the Com∣mons;

and as I conceive, shall leave their declaration of personall Li∣berty on ancient and undoubted truth, fortified with 7 Acts of Parlia∣ment, and not opposed by any Statute or authoritie of Law whatso∣ever.