The arguments upon the writ of habeas corpus, in the Court of Kings Bench.: Wherein, are learnedly discussed, not onely the severall branches of the said writ, but also many authorities as well of the common as statute law: and divers ancient and obscure records most amply and elaborately debated and cleared. Together, with the opinion of the court thereupon. Whereunto is annexed, the petition of Sir Iohn Elliot Knight, in behalf of the liberty of the subject.

Michaelis 3^o Caroli Regis. Thursday, 22 November. Sir John Corbet Baronet, Sir Walter Earle, Sir John Henningham, Sir Edward Hampden, Knights, were brought to the Barre.

Sergeant Bramston.

MAy it please your Lordship to hear the return read, or shall I open it?

Chief Justice Hide.

Let it be read.

Mr. Keeling read the return, being the same as that of Sir Thomas Darnell.

May it please your Lordship, I shall humbly move upon this return in the behalf of Sir John Henningham with whom I am of Councell; it is his petition that he may be bailed from his imprisonment, it was but in vain for me to move that to a Court of Law which by Law cannot be granted: and there∣fore in that regard, that upon this return it will be questioned whether as this return is made, the Gent. may be bailed or not; I shall humbly offer up to your Lordship the case, and some reasons out of mine understanding, arising out of the re∣turn it self, to satisfie your Lordship that these Prisoners may, and as their case is, ought to be bailed by your Lordship.

The exception that I take to this return, is as well to the matter and substance of the return, as to the manner and le∣gall form thereof; the exceptions that I take to the matter is in severall respects.

That the return is too generall, there is no sufficient cause shewn in speciall or in generall of the commitment of this Gentleman; and as it is insufficient for the cause, so also in the time of the first imprisonment, for howsoever here doth appear a time upon the second warrant from the Lords of the Councell to detain him still in prison, yet by the return no time can appear when he was first imprisoned, though it be necessary it should be shewn, and if that time appear not, there is no cause your Lordship should remand him, and con∣sequently he is to be delivered.

Touching the matter of the return, which is the cause of his imprisonment, it is expressed to be Per speciale mandatum do∣mini Regis: This is too generall and uncertain, for that it is not manifest what kind of command this was.

Touching the legall form of the return, it is not as it ought to be fully and positively the return of the Keeper himself on∣ly, but it comes with a significavit or prout that he was com∣mitted Per speciale mandatum domini Regis, as appeareth by warrant from the Lords of the Councell, not of the King him∣self, and that is not good in legall form.

For the matter and substance of the return it is not good, because there ought to be a cause of that imprisonment.

This writ is the means, and the only means that the Subject hath in this and such like case to obtain his liberty; there are other writs by which men are delivered from restraint, as that de homine replegiando, but extends not to this cause, for it is particularly excepted in the body of the writ de manucaptione et de cautione admittenda, but they lie in other cases; but the writ of Habeas corpus is the only means the subject hath to obtain his liberty, and the end of this writ is to return the cause of the imprisonment, that it may be examined in this Court, whether the parties ought to be discharged or not, but that cannot be done upon this return, for the cause of the

imprisonment of this Gentleman at first is so far from appea∣ring particularly by it, that there is no cause at all expressed in it.

This writ requires that the cause of the imprisonment should be returned, and if the cause be not specially certified by it, yet should it at the last be shewn in generall, that it may appear to the Judges of the Court, and it must be expressed so farre as that it may appear to be none of those causes for which by the Law of the Kingdome the Subject ought not to be impriso∣ned, and it ought to be expressed that it was by presentment or indictment, and not upon petition or suggestion made to the King and Lords, which is against the statute made in the 25 Ed. 3. c. 4. 42 E. 3. c. 3.

By the statute 25 Ed. 3. cap. 4. It is ordained and established, that no man from henceforth shall be taken by petition or sug∣gestion made to the King or his Councell, but by indictment or course of Law; and accordingly it was enacted, 42 E. ••. cap. 3. the title of which statute is, None shall be put to answer an ac∣cusation made to the King without presentment. Then my Lord, it being so, although the cause should not need to be expressed in such manner as that it may appear to be none of these causes mentioned in the statute, or else the Subject by this return loseth the benefit and advantage of these Laws, which be their birth∣right and inheritance; but in this return there is no cause at all ap∣pearing of the first commitment, and therefore it is plain that there is no cause for your Lordship to remand him: but there is cause you should deliver him, since the writ is to bring the body and the cause of the imprisonment before your Lordship.

But it may be objected, that this writ of Habeas corpus doth not demand the cause of the first commitment, but of the detain∣ing onely; and so the writ is satisfied by the return, for though it shew no cause of the first commitment, but of detaining on∣ly, yet it declareth a cause why the Gentleman is detained in pri∣son; this is no answer, nor can give any satisfaction, for the rea∣son why the cause is to be returned is for the Subjects liberty, that if it shall appear a good and sufficient cause to your Lord∣ship,

then to be remanded; if your Lordship think and finde it insufficient, hee is to bee enlarged.

This is the end of this writ, and this cannot appeare to your Lordship, unlesse the time of the first commitment be expressed in the return. I know that in some cases the time is not mate∣riall, as when the cause of the commitment is (and that so espe∣cially) returned, as that the time is not materiall, it is enough to shew the cause without the time as after a conviction or triall had by Law; But when it is in this manner, that the time is the matter it self: for intend what cause you will of the commit∣ment, yea though for the highest cause of treason, there is no doubt but that upon the return thereof the time of it must ap∣pear; for it being before triall and conviction had by Law, it is but an accusation, and he that is onely accused, and the accu∣sation ought by Law to be let to bail.

But I beseech your Lordship to observe the consequence of this Cause. If the Law be, that upon this return this Gentle∣man should be remanded, I will not dispute whether or no, a man may be imprisoned before he be convicted according to the Law: but if this return shall be good, then his imprisonment shall not continue on for a time, but for ever; and the Subjects of this Kingdome may be restrained of their liberties perpetually, and by Law there can be no remedy for the Subject; and there∣fore this return cannot stand with the Laws of the Realm, or that of Magna Carta. Nor with the statute of 28 Ed. 3. ca. 3. for if a man be not baileable upon this return, they cannot have the benefit of these two Laws, which are the inheritance of the Subject.

If your Lordship shall think this to be a sufficient cause, then it goeth to a perpetuall imprisonment of the Subject: for in all those causes which may concern the Kings Subjects, and are ap∣pliable to all times and cases, we are not to reflect upon the present time and government, where justice and mercy floweth, but we are to look what may betide us in the time to come, here∣after.

It must be agreed on all sides, that the time of the first com∣mitment

doth not appear in this return; but by a latter warrant from the Lords of the Councell, there is a time indeed expressed for the continuing of him in prison, and that appears; but if this shall be a good cause to remand these Gentlemen to prison, they may lie there this seven years longer, and seven years after them, nay all the days of their lives. And if they sue out a writ of Habeas corpus, it is but making a new warrant, and they shall be remanded, and shall never have the advantage of the Laws which are the best inheritance of every Subject.

And in Ed. 3. xfol. 36. the Laws are called the great inheri∣tance of every Subject, and the inheritance of inheritances, with∣out which inheritance we have no inheritance.

These are the exceptions I desire to offer up to your Lordship, touching the return, for the insufficiency of the cause returned, and the defect of the time of the first commitment, which should have been expressed.

I will not labour in objections till they be made against me, in regard the statute of Westminster primo is so frequent in every mans mouth, that at the Common Law those men that were committed in four cases were not replevisable (viz.) those that were taken for the death of a man, or the commandment of the King, or his Justices for the forest; I shall speak something to it, though I intend not to spend much time about it, for it tou∣cheth not this Case we have in question.

For that is concerning a Case of the Common Law, when men are taken by the Kings writs, and not by word of mouth, and it shall be so expounded, as Master Stamford fol. 73. yet it is nothing to this Case, for if you will take the true meaning of that statute, it extends not at all to this writ of Habeas cor∣pus; for the words are plain, they shall be replevisable by the Common writ, that is, by the writ de homine replegiando, dire∣cted to the Sheriffe to deliver them if they were baileable, but this Case is above the Sheriffe, and he is not to be Judge in it,

whether the cause of the commitment be sufficient or not, as it appears in Fitz Herbert, de homine replegiando, and many o∣ther places, and not of the very words of the statute, this is clear, for thereby many other causes mentioned, as the death of a man, the commandment of the Justices, &c. In which the sta∣tute saith, men are not replevisable; but will a man conceive that the meaning is, that they shall not be bailed at all, but live in perpetuall imprisonment? I think I shall not need to spend time, in that it is so plain, let me but make one instance.

A man is taken de morte hominis, he is not baileable by writ, saith this statute, that is, by the common writ, there was a com∣mon writ for this Case, and that was called de odio & acia, as appeareth. Bracton Coron. 34. this is the writ intended by the statute, which is a common writ, and not a speciall writ; But my Lord as this writ de odio & acia was before this statute, so it was afterwards taken away by the statute of 28 Ed. 3. cap. 9. But before that statute, this writ did lie in the speciall Case as is shewn in Brooks 9^th Reports, Powlters Case, and the end of this writ was, that the Subject might not be too long detained in prison, as till the Justices of Eyre discharged them, so that the Law intended not that a man should suffer perpetuall impri∣sonment, for they were very carefull that men should not bee kept too long in prison, which is also a Liberty of the Sub∣ject; and my Lord that this Court hath bailed upon a suspi∣tion of high treason, I will offer it to your Lordship, when I shall shew you presidents in these cases of a commitment by the Privy Councell, or by the King himself: But before I offer these presidents unto your Lordship, of which there be many, I shall by your Lordships favour speak a little to the next exception, and that is to the matter of the return, which I finde to be per spe∣ciale mandatum domini Regis 8. and what is, that it is by this writ there may be sundry commands by the King, we finde a speciall command often in our Books, as in the statute of Marl∣borough cap. 8. they were imprisoned. Rediss. shall not be deli∣vered without the speciall command of our Lord the King, and so in Bracton, De Actionibus, the last chapter, where it appears

that the King commandment for imprisonments is by speciall writ, so by writ again men are to be delivered, for in the case of Rediss' or Post Rediss', if it shall be removed by a Certiorare, is by a speciall writ to deliver parties: so that by this appears that by the Kings commandment to imprison, and to deliver in those cases, is understood this writ, and so it may be in this case which wee have heard.

And this return here is a speciall Mandatum, it may bee un∣derstood to be under some of the Kings Seals, 42 Ass. and ought to be delivered, and will you make a difference betweene the Kings command under his seal, and his command by word of mouth; what difference there is, I leave it to your Lordships judgement, but if there be any, it is the more materiall that it should be expressed what manner of command it was, which doth not here appear; and therefore it may be the Kings com∣mand by writ, or his command under his seal, or his command by word of mouth alone.

And if of an higher nature, there is none of these commands, then the other, doubtlesse, it is that by writ, or under seal, for they are of record, and in these the person may be bailed, and why not in this? As to the legall forme, admitting there were substances in the return, yet there wants legall form, for the writ of Habeas Corpus is the commandment of the King to the Keeper of the prisons, and thereupon they are to make re∣turn both of the body, and of the cause of the commitment, and that cause is to appear of them who are the immediate Officers. And if he doth it by signification from another, that returne is defective in Law, and therefore this return cannot be good, for it must be from the Officer himself, and if the cause returned by him be good, it bindes the prisoners.

The warrant of the Lords was but a direction for him, he might have made his return to have been expresly by the Kings com∣mandment, there was warrant for it, I shall not need to put you cases of it, for it is not enough that he returns that he was certi∣fied

that the commitment was by the Kings command, but he must of himself return this fact as it was done. And now my Lord I shal offer to your Lordship presidents of divers kindes, upon commit∣ments by the Lords of the Privy Councell, upon commitments by the speciall command of the King, and upon commitments both by the King and the Lords together. And howsoever I conceive, which I submit to your Lordship, that our case will not stand upon presidents, but upon the fundamentall Laws and Statutes of this Realm, and though the presidents look the one way or the other, they are to be brought back unto the Lawes by which the Kingdome is governed. In the first of Henry the eighth, Rot. Parl. 9. one Harison was committed to the Mar∣shalsey by the command of the King, and being removed by Ha∣beas Corpus into the Court, the cause returned was, that he was committed per mandatum Domini Regis, and he was bailed.

In the fortieth of Elizabeth, Thomas Wendon was commit∣ted to the Gatehouse by the commandment of the Queen, and Lords of the Councell, and being removed by an Habeas Cor∣pus upon the generall return, and he was bailed.

In 8 Jacobi, one Caesar was committed by the Kings com∣mandment, and this being returned upon his Habeas Corpus, up∣on the examination of this case it doth appear that it was over∣ruled, that the return should be amended, or else the prisoner should be delivered.

The presidents concerning the commitment by the Lords of the Councel, are in effect the same with these, where the com∣mitment is, by the reason why the cause of the commitment should not be shewn, holds in both cases, and that is the neces∣sity of suit, and therefore Master Stamford makes the command of the King, and that of the Lords of the Privy Councell, to be both as one; and to this purpose, if they speak, he speaks, and if he speaks, they speak.

The presidents that we can shew you, how the Subject hath

been delivered upon commitment by the Lords of the Councel, as in the time of Henry the eight, as in the times of Queen Eli∣zabeth, Queen Mary, are infinite: as in the ninth of Elizabeth; Thomas Lawrence was committed to the Towre by the Lords of the Councell, and bailed upon an Habeas Corpus.

In the 43 of Elizabeth, Calvins case.

In the third of Elizabeth, Vernons case.

These were committed for high treason, and yet bailed, for in all these cases there must be a conviction in due time, or a delive∣rance by Law.

There be divers other presidents that might be shewn to your Lordship. In 12 Iacobi, Miles Renards. In 12 Jacobi, Rot. 155. Richard Beckwiths case. In 4 Iacobi, Sir Thomas Mon∣son was committed for treason to the Towre of London, and af∣terwards was brought hither, and bailed, and since our case stands upon this return, and yet there is no sufficient cause in Law expressed in the return of the detaining this Gentleman; and since these presidents doe warrant our proceedings, my humble suit unto this Court is, that the Gentleman Sir Iohn Henningham, who hath petitioned his Majesty, that he may have the benefit of the Law, and his Majesty hath signified it, It is his pleasure that justice according to the Law should be administred at all times in generall to all his Subjects, and particularly to these Gen∣tlemen, which is their birth-right: My humble suit to your Lord∣ship is, that these Gentlemen may have the benefit of that Law, and be delivered from their imprisonment.

Master Noye his Argument, of Councell with Sir Walter Earl at that time.

May it please your Lordship, I am of Councell with Sir Wal∣ter Earl, one of the prisoners at the Barre; the return of this writ is as those that have been before, they are much of one te∣nour;

and as you have heard the tenour of that, so this Gent. coming hither by an Habeas Corpus, I will by your Lordships fa∣vour read the writ.

Carolus Dei Gratia &c. Iohanni Lylo Milit' Guardian' Prison' nostrae de le Fleet Salut', Praecipimus tibi quod corpus Walteri Earl Milit' in prison' nostra sub custodia tua detent' ut dicit una cum causa deten∣tionis suae quocunque nomine praedict' Walter' cen∣seat in eadem Habeas Corpus ad subjiciendum & re∣cipiendum ea quae curia nostra de eo ad tunc & ibi∣dem ordin' conting' in hac parte & haec nullatenus omit' periculo incumbent' & habeas tibi hoc breve, Test' Hyde, apud Westminster quarto die Novembris, Anno 8.

Executio istius brevis patet in quadam schedula huic brevi annexat'

* 1.1Respons. Johan' Liloe Guardian' Prison' de le Fleet.

Ego Iohannes Lyloe Mil' Guardian' Prison' domi∣ni Regis de le Fleet, Serenissimo Domino Regi, a∣pud Westminster' 8. Post receptionem hujus brevis quod in hac schedula est mentionat', Certifico quod Walter Earl miles, in eodem brevium nominat' de∣tentus est in Prisona de le Fleet sub custodia mea praedict' per speciale mandatum domini Regis mihi

significatum per Warrantum duorum & aliorum de Privato Concilio per Honorabilissimi dicti Domini Regis, cujus quidem tenor sequitur in haec verba.

Whereas Sir Walter Earle Knight, was heretofore committed to your custody, these are to will and re∣quire you still to detain him, letting you know, that both his first commitment, and this direction for the continuance of him in prison, were and are by his Ma∣jesties speciall commandment, from White Hall, 7 No∣vembris, 1627.

• ...Thomas Coventree C. S.
• ...Henry Manchester.
• ...Thomas Suffolk.
• ...Bridgewater.
• ...Kellie.
• ...R. Duneln'.
• ...Thomas Edmunds.
• ...John Cook.
• ...Marlebrugh.
• ...Pembrook.
• ...Salisbury.
• ...Totnes.
• ...Grandisson.
• ...Guliel' Bath & Wells.
• ...Robert Nanton.
• ...Richard Weston.
• ...Humphrey Mayes.

To the Guardian of the Fleet or his Deputy.

Et haec est causa detentionis praedict' Walteri Earl sub custodia mea in Prison' praedict'. Attamen corpus ejusdem Walteri coram Domino Rege ad diem & locum praedictum, post receptionem brevis praedict' pa∣rat' habeo prout istud breve in se exiget & requiret.

Respon' Johan' Liloe milit' Guardian Prison de le Fleet.

My Lord, the first Habeas corpus bears date the 4 of Novem∣ber, then there is an Alias habeas bears Teste after that, and the tenour thereof is a command to the Warden of the Fleet, quod habeas corpus Walteri Earle coram nobis ad subjiciendum & recipiendum ea quae curia nostra de eo &c. ordin' conting. And the Warden of the Fleet he certifies as your Lordship have heard; May it please your Lordship, I desire as before was de∣fired for the other Gentlemen, that Sir Walter Earl may bee also bailed, if there be no other cause of his imprisonment: for if there were a cause certified, and that cause were not sufficient to detain him still in prison, your Lordship would baile him, and if a man should bee in worse case, when there is no cause certified at all, that was very hard.

The writ is, that he should bring the prisoner coram nobis be∣fore the King, the end of that is ad subjiciendum & recipien∣dum; now I conceive that though there be a signification of the Kings pleasure to have this Gentleman imprisoned, yet when the King grants this writ to bring the prisoner hither, ad subjicien∣dum & recipiendum, his pleasure likewise is to have the priso∣ner let goe, if by Law he be not chargeable, or otherwise to de∣tain him still in prison, if the case so require it.

I will put your Lordship in minde of a case, and it was Pasch. 9 Ed. 3. M. 3. I will cite by the placita, because my Book is not paged as other Books are, it is in the case of a Cessavit.

In that case there were two things considerable, the one that there was a signification of the Kings pleasure past, and that determined with him: the other, that though there was a signifi∣cation of the Kings pleasure, before which was, yet there comes after that a writ, and that was another signification of the Kings pleasure, that the prisoner shal be brought hither ad subjiciendum, to submit himself to punishment, if he have deserved it, or ad

recipiendum, to receive his enlargement, and be delivered, if there be no cause of his imprisonment.

And if upon an Habeas corpus a cause of commitment bee certified, that cause is to be tried here before your Lordship. But if no cause be shewn, then the proceedings must be ut curia nostra ad mar' contigerit, the Court must doe that which stands with Law and Justice, and that is to deliver him.

My Lord, I shall be bold to move one word more touching this return: I conceive that every Officer to a Court of Justice must make his return of his own act, or of the act of another, and not what he is certified of by another.

But in this case the Warden of the Fleet doth not certifie himself, of himselfe, that this Gentleman was commanded to him by the King, but that he was certified by the Lords of the Councell, that it was the Kings pleasure that he should detain him. But in our case the Warden of the Fleet must certifie the immediate cause, and not the cause of the cause, as it doth by this return, Detentus est sub custodia mea per speciale manda∣tum Domini Regis mihi significatum per Warrantum duorum de Privato Concilio; that is not the use in Law, but he ought to return the primary cause, and not the subsequent cause, as in 32 Edw. 3. returne, Rex vicecom' 87. in a writ De homi∣ne replegiando, against an Abbot, the Sheriffe returns, that hee hath sent to the Bayliffe of the Abbot, and he answered him that the party was the Abbots villain, and so he cannot deliver him, that is held an insufficient return, and a new Alias was granted, but if the Sheriffe had returned, that the Abbot did certifie him so, it had been good, but he must not return what is certified him by another.

In one of the presidents that hath been noted, as that of Par∣ker, 22 Hen. 8. there the Guardian of the prison certifies that Parker detentus est sub custodia mea per mandatum Domini Re∣gis mihi nunciatum per Robertum Pecke; now our case is by the Nunciation of many, but in Law majus & minus non va∣riant

in spetione, the certification of one and of many is of the same effect, although in morall understanding there may bee a difference.

Trin. 2 Ed. 3. Rot. 46. in this Court in 21 Ed. 3. in the prin∣ted Book there is a peece of it: The Abbot of Burey brings a prohibition out of this Court, the Bishop of Norwich pleadeth in Bar of that Quod mihi testificatum, quod continetur in Ar∣chivis, that he is excommunicated; there were two exceptions taken to this case in this president, and they are both in one case, the first was, that no case appeareth, why he was excommu∣nicated: there may be causes why he should be excommunica∣ted, and then he should be barred, and there may be causes why the excommunication should not barre him: for it may be the excommunication was for bringing the action, which was the Kings writ, and therefore because there was no cause of the excommunication returned, it was ruled that it was not good. The other reason is that upon the Roll, which is mihi testifica∣tum.

Now every man when he will make a Certificate to the Court, Proprium factum suum non alterius significare debet, he must inform the Court of the immediate act done, and not that such things are told him, or that such things are signified unto him, but that was not done in this case, and therefore it was held in∣sufficient: and so in this case of ours, I conceive the return is in∣sufficient in the form, there is another cause my Lord, for which I conceive this return is not good.

But first I will be bold to inform your Lordship touching the Statute of Magna Charta 29. Nullus liber homo capiatur vel imprisonetur &c. nec super eum mittimus nisi per legale judicium parium suorum vel per legem terrae.

That in this Statute these words in Carcerem are omitted out of the printed Books: for it should be nec eum in Carcerem mittimus. For these words per legem terrae; what Lex terrae should be, I will not take upon me to expound, otherwise then I finde them to be expounded by Acts of Parliament; and this

is that they are understood to be the processe of the Law, some∣times by writ, sometimes by attachment of the person: but whe∣ther speciale mandatum Domini Regis be intended by that or no, I leave it to your Lordships exposition upon two petitions of the Commons, and answer of the King, in 36 Ed. 3. n^o 9. and n^o 20.

In the first of them the Commons complain that the great Charter, the Charter of the Forest, and other Statutes were broken, and they desire that for the good of himselfe and of his people, they might be kept and put in execution, and that they might not be infringed by making an arrest by speciall com∣mand or otherwise: and the answer was, that the assent of the Lords established and ordained, that the said Charter and other Statutes should be put in execution according to the petition, and that is without any disturbance by arrest by speciall com∣mand or otherwise, for it was granted, as it was petitioned.

In the same year, for they were very carefull of this matter, and it was necessary it should be so, for it was then an usuall thing to take men by writs quibusdam de causis, and many of these words caused many Acts of Parliament: and it may be some of these writs may be shewn, and I say in the same year they complai∣ned that men were imprisoned by speciall command, and with∣out indictment or other legall course of Law, and they desired that thing may not be done upon men by speciall command a∣gainst the great Charter.

The King makes answer that he is well pleased therewith: that was the first answer; and for the future he hath added farther, if any man be grieved let him complain, and right shall be done unto him. This my Lord is an explanation of the great Char∣ter, as also the Statute of 37 Ed. 3. ch. 18. is a Commentary up∣on it, that men should not be committed upon suggestion made to the King, without due proofs of Law against them, and so it is enacted twice in one year.

Wee finde more printed Bookes, as in Henry the sixth, Mius de fiacts, Fitz. 182. which is a strong case: under fa∣vour

in an action of Trespasse for cutting down trees: the de∣fendant saith, that the place where the trees are cut, is parcell of the Manor of B, whereof the King is seised in fee, and that the King did command him to cut them: and the opinion of the Court was, that this was no good plea, without shewing the specialty of the command, and they said, if the King command me to arrest a man, and I arrest him, he shall have an action of false imprisonment against me, although it were done in the Kings presence.

In 1 Ioh. cap. 7. fol. 46. it is in print, and there we leave it.

Hussey Chief Justice saith, that Sir Iohn Markham told King Edward the fourth, that he could not arrest a man upon suspi∣tion of felony or treason, as any of his Subjects might, because if he should wrong a man by such arrest, the parties could have no remedy against him, if any man shall stand upon it; here is a signification of the Kings pleasure, not to have the cause of the commitment examined, he hath here another signification of his pleasure by writ, whereby the party is brought hither ad subjiciendum & recipiendum, that he hath made your Lordship Judge of that, that should be objected against this Gentleman, and either to punish him, or to deliver him, and if here be no cause shewn, it is to be intended that the party is to be delive∣red, and that it is the Kings pleasure it should be so, and the writ is a sufficient warrant for the doing of it, there being no cause shewn of the imprisonment; and now my Lord, I will speak a word to the writ of De homine replegiando, and no other writ, for that was the common writ, and the four causes expressed in that Statute, to wit, the death of a man, the command of the King, or his Justices, or Forest, were excepted in that writ before that Statute made, as appears Bracton 133. so that the writ was at the Common Law before that Statute.

And it apppears by our Books, that if a man be brought hither by an Habeas corpus, though he were imprisoned De morte hominis, as in the 21 of Edward the fourth, 7. Winck∣field was bailed here, this Court bailed him, for he was brought

hither ad subjiciendum & recipiendum, and not to he in prison God knows how long; and if the Statute should be expounded otherwise, there were no bailing men outlawed or breakers of prisons, for they are not within this Statute, and yet this Court doth it at pleasure.

But plainly by the Statute it self, it appears that it meant only to the common writ, for the preamble recites, that the Sheriffs and other, have taken and kept in prison persons detected of fe∣lony, and let out to plevin such as were not reprisable to grieve the one party, and to the gain of the other; and forasmuch as before this time it was not determined what prisoners were re∣prisable, which not, but onely in certain cases were expressed, there∣fore it is ordained, &c.

Now this is no more but for direction of the keepers of the prisons, for it leaves the matter to the discretion of the Judges, whether bailable or no, not of the Judges, for when the Sta∣tute hath declared who are repleviable, who are not, as men out∣lawed have abjured the Realm: Proves such as be taken in the manner, breakers of prisons, burners of houses, makers of false money, counterfeiting of the Kings Seal, and the like, it is then ordained, that if the Sheriffe or any other, let any goe at large by surety, that is not reprisable, if he be Sheriffe, Constable, or a∣ny other that hath the keeping of prisons, and thereof be attain∣ted, he shall lose his office and fee for ever, so that it extends to the common Gaolers and keepers of prisons, to direct them in what cases they shall let men to bail, and in what cases not: & that they shall not be Judges to whom to let to replevin, and whom to keep in prison, but it extends not to the Judges, for if the ma∣kers of the Statute had meant them in it, they should have put a pain upon them also.

So then, I conclude upon these under your Lordships favour, that as this case is, there should have been a cause of the com∣mitment expressed, for these Gentlemen are brought hither by writ ad subjiciendum, if they be charged, and ad recipiendum if

they be not charged, and therefore in regard there is no charge against them whereupon they should be detained in prison any longer; we desire that they may be bailed or discharged by your Lordship.

Master Seldens Argument at the Kings Bench Bar the same day.

My Lords, I am of Councell with Sir Edmond Hampden, his case is the same with the other two Gentlemen, I cannot hope to say much after that that hath been said, yet if it shall please your Lordship, I shall remember you of so much as is befallen my lot: Sir Edmond Hampden is brought hither by a writ of Ha∣beas corpus, and the keeper of the Gatehouse hath returned upon the writ, that Sir Edmond Hampden is detained in prison per spe∣ciale mandatum domini Regis, mihi significatum per Warr antum duorum Privati Concilii dicti domini Regis, and then he recites the warrants of the Lords of the Councel, which is, that they doe will and require him to detain this Gentleman still in prison, let∣ting him know that his first imprisonment, &c.

May it please your Lordship, I shall humbly move you that this Gentleman may also be bailed, for under favour my Lord, there is no cause in the return, why he should be any farther im∣prisoned and restrained of his liberty.

My Lord, I shall say something to the form of the writ, and of the return, but very little to them both, because there is a very little left for me to say.

My Lord, to the form, I say it expresseth nothing of the first caption, and therefore it is insufficient, I will adde one reason as hath been said: the Habeas corpus hath onely these words, quod habeas corpus ejus una cum causa detentionis & non cap∣tionis: But my Lord, because in all imprisonment, there is a cause of caption and detention, the caption is to be answered as∣well as the detention.

I have seen many writs of this nature, and on them the caption is returned, that they might see the time of the caption, and there∣by know whether the party should be delivered or no, and that in regard of the length of his imprisonment.

The next exception I took to the form is, that there is much in∣certainty in it, so that no man can tell when the writ came to the keeper of the prison, whether before the return or after, for it appears not when the Kings command was, for the commitment or the signification of the Councell came to him: It is true, that it appears that the warrant was dated the seventh of Novem∣ber, but when it came to the keeper of the prison that appeares not at all; and therefore as for want of mentioning the same time of the caption, so for not expressing the same time when this war∣rant came, I think the return is faulty in form and void.

And for apparent contradiction also, the return is insufficient, for in that part of the return which is before the warrant, it is said quod detentus est per speciale mandatum domini Regis, the warrant of the Lords of the Councell; the very syllables of that warrant are, that the Lords of the Councell doe will and require him still to detain him, which is contrary to the first part of the return.

Besides my Lord, the Lords themselves say in another place and passage of the warrant, that the King commanded them to commit him, and so it is their commitment, so that upon the whole matter there appears to be a clear contradiction in the return, and there being a contradiction in the return, it is void.

Now my Lord, I wil speak a word or two to the matter of the return, and that is touching the imprisonment, per speciale mandatum domini Regis, by the Lords of the Councell without any cause expressed, and admitting of any or either of both of these to be the return: I think that by the constant and settled Laws of this kingdome, without which we have nothing, no man can be justly imprisoned by either of them, without a cause of the commitment expressed in the return. My Lord, in both

the last Arguments the statutes have been mentioned and fully expressed, yet I will adde a little to that which hath been said.

The statute of Magna Carta cap. 29. that statute if it were fully executed as it ought to be, every man would enjoy his li∣berty better then he doth.

The Law saith expresly, no Free-man shall be imprisoned with∣out due processe of the Law; out of the very body of this Act of Parliament, besides the explanation of other statutes, it appears, Nullus liber homo capiatur vel imprisonetur nisi per legem ter∣rae. My Lord, I know these words legem terrae, doe leave the question where it was if the interpretation of the Statute were not. But I think under your Lordships favour, there it must be intended by due course of Law to be either by presentment or by indictment.

My Lords, if the meaning of these words Per legem terrae were but as we use to say, according to the lawes, which leaves the matter very uncertain: and per speciale mandatum, &c. be with∣in the meaning of these words, according to the law, then this Act had done nothing. The Act is, No Free-man shall be impriso∣ned but by the law of the land; if you will understand these words, per legem terrae, in the first sense, this statute shall ex∣tend to Villains as well as to Free-men, for if I imprison ano∣ther man, Villain, the Villain may have an action of false im∣prisonment. But the Lords and the King (for then they both had Villains) might imprison them, and the Villain could have no remedy; but these words in the statute per legem terrae, were to the Free-man, which ought not to be imprisoned, but by due processe of law, and unlesse the interpretation shall be this, the Free-man shall have no priviledge above the Villain.

So that I conceive my Lord, these words per legem terrae, must be here so interpreted, as in 42 Eliz. the Bill is worth the ob∣serving, it reciteth that divers persons without any writ or pre∣sentment were cast into prison, &c. that it might be enacted that it should not be so done hereafter; the answer there is, that this

is an Article of the great Charter, this should be granted, so that it seems the statute is not taken to be an explanation of that of Magna Charta, but the very words of the statute of Magna Charta.

I will conclude with a little observation upon these words, nec super eum mittimus, which words of themselves signifie not so much, a man cannot finde any fit sense for them.

But my Lord, in the seventh year of King Iohn, there was a great Charter by which this statute in the ninth of Henry the third, whereby we are now regulated, was framed, and there the words are, nec eum in Carcerem mittimus, we will not commit him to prison; that is, the King himself will not: and to justifie this, there is a story of that time in Matthew Paris, and in that Book this Charter of King Iohn is set down at large, which Book is very authentique, and there it is entred, and in the ninth of Henry the third, he saith, that the statute was renu∣ed in the same words with the Charter of King Iohn; and my Lord, he might know it better then others, for he was the Kings Chronologer in those times: and therefore my Lord, since there be so many reasons, and so many presidents, and so many statutes, which declare that no Free-man whatsoever ought to be impri∣soned, but according to the laws of the land; and that the liber∣ty of the subject is the highest inheritance that hee hath; my humble request is, that according to the ancient laws and privi∣ledges of this Realm, this Gentleman my Client may be be bai∣led.

The Argument of M^r Calthrop at the Kings Bench Bar, 22 Novembris, Mich. 3. Ca∣roli Regis.

Sir Iohn Corbet being brought to the Kings Bench Bar with Sir Edmond Hampden, Sir Walter Earl, and Sir Iohn Henning∣ham, who wer also brought thither by severall writs of Habeas corpus, with the same return, I being assigned by the Court of Kings Bench, upon a petition delivered to be of Councell with

Sir Iohn Corbet, did move that Sir Iohn Corbet might bee dis∣charged of his imprisonment, and put in bail, for I did conceive that the return of this Habeas corpus was insufficient, both in the matter of the return, and in the manner of the return, and so there ought not to be a longer detaining of Sir Iohn Corbet in prison: for as unto the manner of the return it is not laid downe precisely that Sir Iohn Corbet is detained in prison by the speci∣all commandment of the King, signified by the warrant of the Lords of the Councell, the which is not a direct affirmation that he is detained by the speciall command of the King, but that the Lords of the Councell by their warrant have signified unto him that he was committed and still detained by the speciall com∣mand of the King.

And howsoever the Lords of the Councell had signified that he was detained by the commandment of the King, yet it may be he was not detained by the commandment of the King, for their signification of the same by warrant may be untrue, and the warrant of the Lords of the Councell that is returned in haec ver∣ba, importeth that the keeper of the Gatehouse rather tooke upon him to return, that was signified unto him by the war∣rant of the Lords of the Councel, that Sir Iohn Corbet was com∣mitted and detained by the speciall commandment of the King, because if the keeper had taken upon him to affirm it upon his return, then needed he not to have returned the warrants of the Lords of the Councell, and the warrant it self sheweth that hee had onely his information from the Lords of the Councell; for their warrant is to let the keeper know, that both the first com∣mitment, and this direction for the continuing of him in prison, were and are by his Majesties speciall commandment, and I doe not see as this return is made, that an accord upon the case can lie upon the keeper of the Gatehouse, if Sir Iohn Corbet was not committed nor detained by the speciall commandment of the King, so long as the warrant of the Lords of the Councell bee returned as it was made, because hee doth return the same as the Significavit of the Lords by their warrant, Register 65. the writ of Excommunication Capiend' goeth, Rex vicecom' Lin∣coln' S. significavit nob' venerabilis Pater Henricus Lincolniensis

Episcopus per Literas suas Patentes quod R. suus Parochial' pro∣pter suam manifestam contumac' authoritate ipsius Episc. ordin' excom' est nec se vult per censuram Ecclesiasticam justiciar' &c. tibi praecipimus quod praedict' R. per corpus suum secundum consuetud' Angliae justic' &c. and yet no man will say that there is an information of the King, that R. is excommunicated, but onely that the Bishop of Lincoln had signified unto him that R. was excommunicated: and in Fitz. Nat. Br. 663. and Regi∣ster 65. it appears that the form of the writ of Excommunica∣tion deliberand' is, Rex Vicecom' London Salut'. Cum Thom' lay allutar' London qui nuper ad denuntiat. venerabil' Patris Ar∣chiep' Eborum pro contumaciis suis ratione contractus in civita∣te nostra Eborum habit' ut dicebat. tanquam excom' & claves Ecclesiae contemnent' per corp' suum secundum confuetud' Ang∣liae per te justic' praecepimus, donec &c. esset satisfact' eid' Archi∣episcop••, •…•…d satisfaciendum deo et sanctae ecclesiae, sufficientem ex∣posuit cautionem, per quod eidem Archiepiscopus offic. Archdiac. London. mutuae vicissitudin' obtentu scripsit ut ipsum absolvat ab excom' senten' memorata sicut idem Archiepiscopus per Lite∣ras suas Patentes nob' significavit, Tibi praecipimus quod praed. Thom' cum tibi constare poterit ipsum ab excom' praedict' per praedict' Official' absolvi à Prison' qua detinetur si ea occasi∣one & non alia detineat' in eadem sine dilatione deliberari fac'. And yet it cannot be said, that although the King recited in his writ that the Archbishop had signified unto him that he had written unto the Officiall of the Archdeacon, that the King said that the Archbishop had written, for he doth not affirme so much precisely, but onely, referreth himself unto the Certificate of the Archbishop.

Plowden 122. Buckley and Rivers case, it is put that if a man will bring an action of debt upon an obligation, and de∣clare that it appeares by the obligation that the defendant stood bound to the plaintiffe in twenty pounds, the which he hath not paid, this declaration is not good, insomuch as it is not alledged by matter in fact, that he was bound unto him in twenty pound, but the deed is alledged by recitall onely, 21 Ed. 4. 43.

Plowden Com' 126. & 143. Browning and Beestons case.

The Abbot of Waltham being appointed collector of a Disme granted unto the King in discharge of himself, in the Exchequer, pleadeth, Quo inter recordat' Ter. Pasc. anno 15. domini Regis Edvardi 1. inter alia continetur quod R. 2. had granted unto the predecessors of the said Abbot, that he nor any of his successours should be any collectors of any dismes to be granted afterwards, and it was adjudged that this plea was ill.

For the saying [it was contained among the Records,] it is no precise affirmation that the King had granted to his predecessors, that they should be discharged of the collecting any dismes, but it is onely an allegation by way of recitall, and not by precise affirmation, the plea may not bee good.

2 & 3 Mar. Dier 117. & 118. the plaintiffes reply in barre of all pleadeth, that Iohn Abbot of W. was seised of his lands in right of his Church, and so seised by the assent of the tenant by in∣denture, 14 Hen. 4. testat' quod praedict' Abbat' & convent' de∣miserunt & tradiderunt, unto the plaintiffe, and ruled, that this form of pleading was ill, insomuch as it was not alledged by pre∣cise affirmation, quod demiserunt, sed indentura testatur, quod de∣miserunt; which is not sufficient, insomuch as it is onely an allega∣tion by way of recitall, that the Indenture doth witnesse, and the same Indenture may witnesse so much, and yet not be a demise.

And if in pleading there must be direct affirmation of the mat∣ter alledged, then à fortiore in a return, which must be more pre∣cise then in pleading, and so by all the cases I have formerly tou∣ched, it appeareth that this return is no expresse affirmation of the keeper of the Gatehouse, that Sir Iohn Corbet is detained in prison by the speciall commandment of the King, but onely an affirmation of the Lords of the Councell, who had signified unto him that his detainment in prison was by speciall command of the King.

The return which ought to be certain, and punctuall, and af∣firmative, and not by way of information out of another mans mouth, may not be good, as appeareth by the severall books of our Law.

23 Ed. 3. Rex vic' 181. upon a Homine replegiando, against the Abbot of C. the Sheriffe returneth that he had sent to the Bai∣liffe of the Abbot, that answered him that he was the villain of the Abbot, by which he might not make deliverance, and a Sicut alias was awarded, for this return was insufficient, insomuch that he had returned the answer of the Bailiffe of the Abbot, where he ought to have returned the answer of the Abbot himself out of his own mouth.

Trin. 22 Ed. 2. Rot. 46. parent. vill' & Burg Evesque de Norwich, repl' 68. Nat. Br. Case 34. Fitz. Nat. Br. 65. & 34 Ed. 3. Excom' 29. the case appeareth to be such in a trespasse, the defendant pleadeth, the plaintiffe is excommunicate, and sheweth forth the letter of the Bishop of Lincoln, witnessing that for divers contumacies, &c. and because he had certified no ex∣communic' done by himself, but by another, the letter of Excom∣munication was annulled, for the Bishop ought to have certified his own act, and not the act of another.

Hillarii 21 Hen. 8. Rot. 37. it appeareth by the return of an Habeas corpus, that Iohn Parker was committed to prison for security of the peace, and for suspition of felony, as per manda∣tum domini Regis nunciatum, per Robertum Peck de Cliffords Inne, and upon his return Iohn Parker was bailed, for the return Commiss. fuit per speciale mandatum domini Regis, nunciatum per Robertum Peck was not good, insomuch that it was not a di∣rect return that he was committed per mandatum domini Regis.

And for the first point, I conclude that this return is insufficient in form, insomuch that it doth not make a precise and direct return, that he was committed and detained by the speciall command of the King, but only as he was signified by the warrant of the Lords of the Councel, which will not serve the turn; and upon the book of 9 Hen. 6. 44. the return of the cause of a mans imprisonment ought to be precise and direct upon the Habeas corpus, insomuch as thereby to be able to judge of the cause, whether it be sufficient or not for there may not any doubt be taken to the return, be it true or false, but the Court is to accept the same as true: and if it be false, the party must take his remedy by action upon the case.

And as concerning the matter of the return, it will rest upon these parts.

First, whether the return be that he is detained in prison by spe∣ciall commandment of our Lord the King, be good or not, with∣out shewing the nature of the commandment, or the cause where∣upon the commitment is grounded in the return.

The second is, whether the time of the first commitment by the commandment of the King, not appearing to the Court, is suffici∣ent to detain him in prison.

Thirdly, whether the imprisonment of the subjects without cause shewed, but onely by the commandment of the King, be warran∣table by the laws and statutes of this Realm.

As unto the first part, I finde by the books of our law, that commandments of the King are of severall natures, by some of which the imprisonment of a mans body is utterly unlawfull: and by others of them, although the imprisonment may be lawfull, yet the continuance of him without bail or mainprise, will be ut∣terly unlawfull.

There is a verball command of the King which is by word of mouth of the Kings only, and such commandment by the King by the books of our law will not be sufficient either to imprison a man or to continue him in prison, 16. 6. Monstrans de faict si, upon an action of trespasse brought for cutting of trees, the de∣fendant pleadeth that the place where he cut them is parcell of the Manor of D, whereof the King is seised in fee, and the King com∣manded him to cut the trees, and the opinion of the Court there is, that the plea in bar was ill, because he did not shew any speciall commandment of the King, and there it is agreed by the whole Court, that if the King commandeth one to arrest another, and the party commanded did arrest the other, an action of trespasse or false imprisonment is maintainable against the party that arrested him, although it were done in the presence of the King, 39 H. 6. 17. where one justifieth the seisure of the goods of a person that is outlawed by the commandment of the King, such a party being no

Officer may not in an action brought against him have any aid of the King; for such a commandment given to one that is not an Officer, will not any ways avail him that is to justifie himself by the return of that commandment.

37. Hen. 6. 10. If the King give me a thing and I take the same by his commandment by word of mouth, it is not justified by law, nothing may passe without matter of Record.

10 Hen. 7. 7. & 17. 18. it is agreed that Justices may com∣mand one to arrest another that is in their view or presence, but not one that is out of their view or presence.

And Keble 10 Hen. 7. 13. said, that where one is arrested by a parroll command in their view or presence, it is fitting that a re∣cord may be made of it, insomuch that without such a record there can hardly be a justification in another Term.

Secondly, there is a commandment of the King by his Com∣mission, which according unto Calvins case in the seventh Report, it is called by him breve mandatum non remediabile, and by vir∣tue of such a commandment the King may neither seise the goods of his subject, nor imprison his body, as it is resolved in 42 Ass. pl. 5. where it is agreed by all the Justices that a Commission to take a mans goods, or imprison his body without indictment or suit of the party, or other due processe, is against the Law.

Thirdly, there is a commandment of the King which is groun∣ded upon a suggestion made to the King or to his Councell; and if a man be committed to prison by such a suggestion by com∣mandment of the King, it is unlawfull, and not warranted by the law of the Realm.

The 25 of Edward the third, cap. 4. de Provisoribus, whereas it is contained in the great Charter of the Franchises of England, that none shall be imprisoned or arrested of his Free-hold or of his Franchises, nor of his free customes but by the law of the land.

It is awarded, consented and established, that from henceforth none shall be taken by petition or suggestion made to our Sove∣raign Lord the King, or to his Councell, untill it be by indictment or presentment of his good and lawfull neighbours, where such deeds are done in due manner, or by processe made by writ origi∣nall at the Common law, nor that none shall be arrested of his Franchises, nor of his free-hold, unlesse he be duly brought in, and answer, and forejudged of the same by way of law, and if any thing be done against the same, it shall be redressed and holden for nought.

37 Ed. 3. cap. 10. although it be contained in the great Char∣ter, that no man be taken or imprisoned, or put out of his free∣hold, without due processe of the law: neverthelesse divers per∣sons make false suggestions to the King himself, as well for malice as otherwise, whereof the King is often grieved, and divers of the Realm put in great damages contrary to the form of the same Statute.

Wherefore it is ordained, that all they that make such suggesti∣ons be sent with their suggestions to the Chancelour or Treasu∣rer, and they and every of them finde sureties to pursue their suggestions, and endure the same pain that the other should have had; if in case that his suggestion be found untrue, and that then processe of the law be made against them without being taken or imprisoned against the form of the same Charter, and other sta∣tutes.

So that it appears by these severall statutes, that such command∣ments of the King as are grounded upon suggestion, either made to himself or to his Councell, for the imprisonment of a man, are against the law.

Fourthly, I find that there is a commandment of the King which is made under his hand, with his signet, for in the fourth and the fifth of Philip and Mary, Dier 162. where the statute of •• Ric. 2. cap. 11. restraineth the Warden of the Fleet for letting any man at large that is in upon judgement at the suit of any man, ex∣cept it be by writ or other commandment of the King; It was doubted, whether the Queen by letter under her hand and privy signet, doth give commandment to the Warden of the Fleet to

suffer a man that is there in execution to goe about his businesse, or the affaires of the Queen: whether this be a warrantable command or not within the Statute: and the Law hath alwayes been conceived upon that book, that such a commandment is not warrantable by Law, and if such a command will not serve the turn, to give unto a man his liberty, which the law favou∣reth, and had the countenance of an Act of Parliament for the doing of it, then I conceive it should be a more strong case, the King should not have power by his commandment to imprison a man without due processe of the Law, and restrain him of his liberty when there had been so many Acts of Parliament made for the liberty of the subjects.

Fifthly, I doe finde that there is the commandment of the King which is by his writ under the Great Seal, or the seal of the Court out of which it issueth, Regist. f. 69. & 70. in the writ de cautione admittenda, I find the words, mandatum Regis expounded to be breve Regis, for the writ goeth: Rex vic' Salutem. Cum nuper ad requisitionem S. de Isle Canonici Lincolne venerabi∣lis Patris H. Lincoln. Episcopi ipso in remotis agente Vicarii general. per Literas suas Patentes nobis significantis Nicho. B. dict. Lincoln. Dioc. propter manifestam contumaciam Authori∣tate ipsius Episcopi Ordinar. excommunicat. esse nec si velle &c. vobis praeceperimus quod praefat. &c. satisfactum ex parte ipsius N. qui virtute mandati nostri praedict. per vos Capt. & in Pri∣son. nostra de Newgate detent. existit, &c. nos nolentes quod praefat. N. per breve nostrum praedict. via praecludatur &c. pr••∣sequi possit in forma Iuris maxim. &c. integer esse debeat, vobis praecipimus quod scire &c. quod sit &c. quare praedict. N. à Pri∣sona praedict. deliberari non debeat. Rex justiciar. suis de Banco salut. Cum nos nuper ad significationem S. de Isle &c. usque ibi excommunicat. extitisse nec se velle &c. esset satisfactum ex parte ipsius N. virtute manditi nostri praed. capt. & in Prisona nostra de Newgate tuncdetenti, &c. et nolentes eo praetextu prae∣fato N. per breve nostrum praed. via praecludat. quo minus appel∣lac. suae negotium &c. processerat. & appellant. statut. &c. per breve nostrum praeceperimus praefat. vic. quod scire face∣rent.

&c. vobis signific. & consult. & circumspect. in Placitis per breve praedict. coram vobis pendentibus procedere valeatis se∣cundum legem & consuetudinem Regni nostri.

Stamf. 72. 5 E. 3. c. 8. 1. E. 3. c. 9. saith, that every Capias in a per∣sonall action is a commandment of the King, for it is Praecipimus tibi quod capias &c. and yet the defendant as there it is said is re∣plevisable by the Common law, 7 R. 20. a. Calvins case, saith that there are two kind of writs, viz. brevia mandatoria & remedi••∣lia, & brevia mandatoria & non remedialia: brevia mandatoria & remedialia, are writs of Right, Formedon &c. debts, trespas∣ses, and shortly all writs reall and personall, whereby the party wronged is to recover somewhat, and to be remedied for that wrong which is done unto him.

Sixthly, I doe finde by our books of Law, and by the Register, that this speciall mandatum domini Regis, is expounded to be his writ, and that the Law taketh no notice of any other speciale mandatum, then by this writ; the which being so when the return is made, that he is imprisoned and detained in prison by the spe∣ciall commandment of the King, how can the Court adjudge upon this return, that Sir Iohn Corbet ought to be kept in prison, and not to be bailed, when the nature of the speciall command∣ment is not set forth in the return, whereby it may appear unto the Court that he is not bailable. In Bracton, c. 12. 112. you shall see a writ reciting, Praecipimus tibi quod non implacites nec impl••∣citari permittas talem de libero tenemento suo in tali villa sine speciali praecepto nostro vel Capitalis Justiciar' nostri.

And the reason of it there is given, quia nemo de libero tene∣mento sine brevi sive libello conventionali nisi gratis voluerit respondebit. So as the exception of speciall commandment by the very book, appeareth to be breve sive libellus conventionalis, Regist. 271. the writ of Manucaption goeth in this manner: Rex vic. Salut. Cum nuper assignaverimus dilectos et fideles ne∣stros A. B & C. D. ad inquisitiones de forstallariis et transgres∣sionibus contra formam statuti dudum apud Winton. editi in com. tuo faciend. et ad illos quos inde culpabiles invenirent. capiend. &

in Prisona nostra salvo custod. faciend. donec aliud inde praecepi∣ssemus quod C. D. et E. pro hujusmodi forstallamentis & trans∣gressionibus unde coram praefat. A. B. & C. indict. fuerint, capt. & in Prisona de L. detent. exist. à qua deliberari non possunt, sine mandato nostro speciali, Nos volentes eisdem C. D. & E. gratiaem in hac parte facere specialem, tibi praecipimus quod si praedict. C. D. et E. occasione praedict. et non alia in Prisona p•…•…∣dict. detineantur, et pro transgressionibus illis secundum legem & consuetudinem Regni nostri Angliae replegiabiles existunt &c. tunc impos C. D. et E. à Prisona praedict. si ea occasione et non alia detineantur in eadem interim deliberari facias per manucapt. supradict. et habeas ibi tunc coram praefat. Justiciar. nomina manucapt. illorum et hoc breve.

And the exposition of this speciale mandatum domini Regis, mentioned in the writ, is expounded to be breve domini Regis, & thereupon is this writ directed unto the Sheriffe for the delivery of them.

And so for the first branch of the first part: I conclude, that the speciall command of the King without shewing the nature of the commandment of the Kings, is too generall, and therefore in∣sufficient; for he ought to have returned the nature of the com∣mandment of the King, whereby the Court might have adjudged upon it, whether it were such a commandment that the impri∣sonment of Sir Iohn Corbet be lawfull or not, and whether it were such a commandment of the King, that although the impri∣sonment were lawfull at the first, yet he might be bailed by Law.

And as for the generall return of speciale mandatum domini Regis, without shewing the cause of the imprisonment either spe∣ciall or generall, I hold that for that cause also the return is insuf∣ficient.

First, in regard of the Habeas corpus, which is the commande∣ment of the King onely, made the 15 of November.

According to the Teste of the writ commanding the keeper of the Gatehouse to have the body of Sir Iohn Corbet, una cum

causa detentionis et ad subjiciendum et recipiendum ea quae cu∣ria nostra de eo ad tunc ibid. ordinar. conting•…•…'. So as the com∣mandment of the writ being to shew the cause of his detaining in prison, the keeper of the Gatehouse doth not give a full answer unto the writ, unlesse the cause of the detainment in prison be re∣turned, and the Court doth not know how to give their judge∣ment upon him, either for his imprisonment, or for his discharge, according to the purport of the writ, when there is not a cause returned, and forasmuch as upon an excommengement certified, it hath been adjudged oftentimes that Certificates were insuffici∣ent where the cause of the commitment hath not been certified, that the Court might adjudge whether the Ecclesiasticall Judges who pronounced the excommunication, had power over the o∣riginall cause according to the book of 14 Hen. 4. 14. 8. Rep. 68. Trollops case, & 20 Ed. 3. Excommengement 9.

So upon an Habeas corpus in this Court, where a man hath been committed by the Chancelour of England, by the Coun∣cell of England, Marches of Wales, Warden of the Stanneries, High Commission, Admiralty, Dutchy, Court of Request, Com∣mission of Sewers or Bankrupts, it hath severall times been ad∣judged that the return was insufficient where the particular cause of imprisonment hath not been shewn to the intent that it might appear that those that committed him had jurisdiction over the cause, otherwise he ought to be discharged by the Law: & I spare to recite particular causes in every kinde of these, because there are so many presidents of them in severall ages of every King of this Realm: and it is an infallible maxime of the Law, That as the Court of the Kings Bench, and Judges ought not to deny an Ha∣beas corpus unto any prisoner that shall demand the same by whomsoever he be committed, so ought the cause of his impri∣sonment to be shewn upon the return, so that the Court may adjudge of the cause whether the cause of the imprisonment be lawfull or not: and because I will not trouble the Court with so many presidents, but such as shall suit with the cause in questi∣on, I will onely produce and vouch such presidents, whereas the party was committed either by the commandment of the

King, or otherwi••e by the commandment of the Privy Councell, which Stampford. fol. 72. tearmeth the mouth of the King, such Acts as are done by the Privy Councell, being as Acts done by the King himself.

And in all these causes you shall finde that there is a cause re∣turned as well as a speciale mandatum domini Regis &c. or mar∣datum Privati Concilii domini Regis, whereby the Court may adjudge of the cause, and bail them if they shall see cause.

In the eighth of Henry the seventh, upon return of an Habeas corpus awarded for the body of one Roger Sherry, it appeareth that he was committed by the Mayor of Windsor for suspition of felony, and ad sectam ipsius Regis pro quibusdam feloniis et transgressionibus ac per mandatum domini Regis; 21 Hen. the seventh, upon the return of an Habeas corpus sent for the body of Hugh Pain, it appeared that he was committed to prison, per mandatum dominorum Privati Concilii domini Regis pro suspicione feloniae.

Primo Henrici Octavi, Rot. 9. upon the return of an Habeas corpus sent for the body of one Thomas Harrison and others, it appears that they were committed to the Earl of Shrewsbury being Marshall of the houshold, Per mandatum domini Re∣gis, et pro suspicione feloniae, et pro homicidio facto super Ma∣re.

3 & 4 Philip. et Mariae, upon a return of an Habeas corpus sent for the body of one Peter Man, it appeareth that he was committed pro suspicione feloniae, ac per mandatum domini Re∣gis et Reginae.

4 & 5 Philippi et Mariae, upon the return of an Habeas cor∣pus sent for the body of one Thomas Newport, it appeared that he was committed to the Tower, pro suspicione contrafact, mc∣netae per privatum Concilium domini Regis et Reginae.

33 Elizabeth•…•… upon the return of an Habeas corpus for the body of one Lawrence Brown; it appeareth that he was commit∣ted Per mandatum Privati Consilii dominae Reginae pro diversis ••ausis ipsam Reginam tangen, ac etiam pro suspicione proditic∣nis.

So as by all these presidents it appeareth where the returne is either Per mandatum domini Regis, or Per mandatum domine∣rum Privati Concilii domini Regis; there is also a cause over and besides the mandatum returned, as unto that which may be objected, that per mandatum domini Regis, or Privati Conci∣lii domini Regis is a good return of his imprisonment I answer.

First, that there is a cause, for it is not to be presumed that the King or Councell would commit one to prison without some offence, and therefore this mandatum being occasioned by the offence or fault, the offence or fault must be the cause, and not the command of the King or Councell which is occasioned by the cause.

Secondly, it appears that the jurisdiction of the Privy Coun∣cell is a limited jurisdiction, for they have no power in all cau∣ses, their power being restrained in certain causes by severall Acts of Parliament, * 1.2 as it appeareth by the statute of 20 Edward the third, c. 11. 25 Ed. the third c. 1. stat. 4. the private petition in Parliament permitted in the 1 of R. 2. where the Commons pe∣tition that the Privy Councell might not make any Ordinance a∣gainst the Common Law, Customes or Statutes of the Realm; the fourth of Henry the fourth, ca. 3. 13 Hen. the fourth, 7. 31 H. the sixth, and their jurisdictions being a limited jurisdiction, the cause and grounds of their commitment ought to appear, where∣by it may appear if the Lords of the Councell did commit him for such a cause as was within their jurisdiction: for if they did command me to be committed to prison for a cause whereof they had not jurisdiction, the Court ought to discharge me of this imprisonment, and howsoever the King is Vicarius Dei in terra, yet Bracton, cap. 8. fol. 107. saith, quod nihil aliud potest Rex in terris cum sit Minister Dei & Vicarius, quam solum quod de jure potest. nec obstat, quod dicitur quod Principi placet, legis habet vigorem, quia sequitur in fine legis cum lege Regia quae de ejus imperio lata est, id est non quicquid de voluntate Regis temere praesumptum est, sed animo condendi Jura, sed quod con∣silio Magistratuum suorum Rege author. praestant et habita super hoc deliberatione et tract. rect. fuer. definit. Potestat.

itaque suajuris est, & non injuriae. The which being so, then also it ought to appear upon what cause the King committeth one to prison, whereby the Judges which are indifferent between the King and his Subjects, may judge whether his commitment be against the Laws and Statutes of this Realm or not.

Thirdly, it is to be observed, that the Kings command by his Writ of Habeas Corpus is since the commandment of the King for his commitment, and this being the latter commandement, ought to be obeyed; wherefore that commanding a return of the body cum causa detentionis, there must be a return of some other cause then Per mandatum domini Regis, the same commandment being before the return of the Writ.

Pasch. 9 E. 3. pl. 30. fol. 56. upon a Writ of Cessavit brought in the County of Northumberland, the Defendants plead, That by reason the Country being destroyed by Wars with the Scots, King Edward the second gave command that no Writ of Cessa∣vit should be brought during the Wars with Scotland, and that the King had sent his Writ to surcease the Plea, and he averreth that the Wars with Scotland did continue.

Hearle that giveth the Rule saith, That we have command by the King that now is, to hold this Plea, wherefore we will not sur∣cease for any Writ of the King that is dead; and so upon all these reasons and presidents formerly alledged, I conclude, that the re∣turn that Sir John Corbet was committed and detained in prison, Per speciale mandatum domini Regis, without shewing the nature of the commandement by which the Court may judge whether the commandement be of such a nature as he ought to be detained in prison, and that without shewing the cause upon which the commandement of the King is grounded, is not good. As unto the second part, which is, Whether the time of the commitment by the return of the Writ, not appearing unto the Court, the Court ought to detain him in prison or no?

I conceive that he ought not to be continued in prison admit∣ting

that the first commitment by the command of the King were lawfull, yet when he hath continued in prison by such reasonable time as may be thought fit for that offence for which he is com∣mitted, he ought to be brought to answer, and not to continue still in prison without being brought to answer.

For it appears by the Books of our Laws, that liberty is a thing so favoured by the Law, that the Law will not suffer the continu∣ance of a man in prison for any longer time then of necessity it must; and therefore the Law will neither suffer the party, Sheriffs or Judges to continue a man in prison by their power and their pleasure, but doth speed the delivery of a man out of prison, with as reasonable expedition as may be.

And upon this reason it is resolved in 1 & 2 El. Dyer 175. & 8 Ed. 4. 13. That howsoever the Law alloweth that there may be no terme between the test of an originall Writ and the return of the same, where there is only a summons, and no imprisonment of the body, yet it will not allow that there shall be a term between the test of a Writ of Capias, and the return of the same, where the body of a man is to be imprisoned, insomuch that it will give no way that the party shall have no power to continue the body of a man imprisoned any longer time then needs must. 39 E. 3. 7. 10 H. 7. 11. 6 E. 4. 69. 11. E. 4. 9. 48 E. 3. 1. 17 E. 3. 1 & 2 Hen. 7.

Kellawaies Reports do all agree, that if a Capias shall be awar∣ded against a man for the apprehending of his body, and the She∣riffe will return the Capias, that is awarded against the party, a non est inventus, or that languidus est in prisona, yet the Law will allow the party against whom it is awarded for the avoiding of his corporall penance and dures of imprisonment, to appear gra∣tis, and for to answer.

For the Law will not allow the Sheriffe by his false return to keep one in prison longer then needs must, 38 Ass. pl. 22. Brooks imprisonment 100. saith, That it was determined in Parliament that a man is not to be detained in prison after he hath made ten∣der of his fine for his imprisonment, therefore I desire your Lord∣ship

that Sir John Corbet may not be kept longer in durance, but be discharged according to the Law.

The Lord Chief Justice his Speech.

Master Atturney, you have heard many learned Ar∣guments, if you be provided to answer presently, we will hear you, but if you will have a longer day for that you are not provided to argue, you may, we will give it you.

Doderidge.

If you will you may see these presidents, it may be you have not seen some of them, and we must see them too.

Heath Atturney.

May it please your Lordship, the Gentlemen that be of Coun∣cell with the Knights at the Barre, they have said much, and spo∣ken very long for their Clients, and to good purpose and perti∣nently. It is a cause that carrieth with it a great deal of weight, both towards the King and his Subjects also, and I am not so ha∣sty to put my self upon the main point of this cause, when it is al∣most time for your Lordship to rise.

My Lord, the Gentlemen have severally spoken, and given and insisted upon severall reasons, and they have cited many presi∣dents. I could say something of them at this present, and that some of them have been mistaken; and therefore I beseech your Lordship that I may have time to answer, that I may not wrong the cause of the Kings part, or slight the cause on the Subjects part.

But that which I desire to say now, is, that these Gentlemen have all of them gone in one form to divide the cause into two parts:

• [part 1] The first, the form of the Return.
• ... [part 2] The second, the matter of the Return.

For the form, me thinks we may put an end to that now, if your Lordship please, that we may have no return to that ano∣ther day, but I may apply my self unto the matter of the Re∣turn.

To the form of the Return they have taken divers exceptions, but they especially insisted upon two main heads:

First, that the Return is not good, because it is not an absolute Return: I confesse the ground is well laid, and the Major is good, that if this Return be not positively the Return of the War∣den of the Fleet himself, but the relation of another, it is no good Return, therefore I need spend no time in that, the ground being well laid; but under your Lordships favour, the Major proposi∣tion I deny, we differ onely in that, for I say that this Return is certain, and that it is not the words of any man else, but the express words of the Warden himself, and that this is added ex abundan∣ti to give satisfaction to the Court, that he had order to make the Return; therefore I desire your Lordship to cast your eyes up∣on the substance of the Return, and distinguish it into parts.

The words are, Detentus est in prisona sub custodia mea per speciale Mandatum domini Regis mihi significatum per Warran∣tum duorum Privati concilii dicti domini Regis, &c. If he had turned these words, and said, Detent' est prout mihi significat' per Warrantum duorum Privati concilii per speciale mandatum domini Regis, then it might be taken to be the words of the Lords of the Councell, but the first words being positive, Detentus est per speciale mandatum domini Regis, that is sufficient, and the rest is surplusage, and he doth not say, prout mihi significut, but mihi significat onely, which is absolute, and the resolution thereof resteth more in your Lordships expounding of the words, then in putting any case upon them.

The second exception is taken to the form of the Return, for that there is not the cause of the imprisonment returned, but of the detaining alone.

My Lord, I say no more to that but this, No man is bound

to answer more then that which is the contents of the Writ, I know the Writ, it may be to know specially the cause of the detai∣ning, or what the cause of the caption is onely, and if the Offi∣cer make answer to that which is required of him in the Writ, it is sufficient, it may be there be presidents both ways, I am sure there are detentions onely, and there is no cause why the Officer should shew the time of his commitment, but if the Prisoner shall desire it, your Lordship may grant him a Writ to shew the cause both of his caption and detention also.

Thirdly, they say that this Return is uncertain, and that it is the Warrant of the Lords of the Councell, and not of the King, by which he is committed.

For that my Lord I say, that if it had all been left out, and he had onely said, Detentus fuit per speciale mandatum domini Re∣gis, it had been sufficient, but when he doth more it is superfluous and not necessary, for it appeared before by whom he was com∣mitted, and when he returns the Warrant of the Lords of the Councell, it is not their words that commit him, but they being the Representative Body of the King, they doe expresse what the Kings command is, but they signifie nothing of their own, and therefore I desire your Lordship to deliver your opinion in that point of the Return, whether it be positive or no.

This cause as it greatly concerns the Subjects, so it much con∣cerns the King too, I am sorry there should be any occasion to bring these things in question, but since it is now here, I hope I shall give satisfaction to your Lordship, and to the parties too, and I desire that I may have Munday for it.

Hide Chief Justice.

I think it is not best for us to declare our opinions by peece-meals, but upon all the case together, and as well as you are a stranger to the Return, so are we, and

there be many presidents and Acts of Parliament not printed, which we must see.

Doderidge.

This is the greatest cause that ever I know in this Court, our Judgements that we give between party and party, between the King and the meanest Subject, ought to be maturely advised on, for so are the entries of our judgements, Quod matura delibera∣tione habita. It was judged, &c. And we must see the presidents and Acts of Parliament, that we hear mentioned.

Justice Jones.

Master Atturney, if it be so that the Law of Magna Charta and other Statutes be now in force, and the gentlemen be not de∣livered by this Court, how shall they be delivered? apply your self to shew us any other way to deliver them.

Doderidge.

Yea, or else they shall have a perpetuall imprisonment.

Per Curiam.

Munday was appointed for the Atturneys Argument, and in the interim the Councell for the gentlemen were by order appoin∣ted, for to attend the Judges with all the presidents and unprinted Statutes which they mentioned, and that they should let the At∣turney see them also.

And the gentlemen being asked if they desired to come again, answered they did, and a Rule was entred for it.

Notes

• * 1.1

  Prisonum Regis de le Fleet.
• * 1.2

  Vide 4 Instit. fol. 53.