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iamcnt, and parliamentary Proceedings. 3. 'recedents. 4. Resolutions of former times. 5. 'ome Reasons offered to maintain this side,and icakcn the other.—In these, "by their advice, in resolved not to pass from point to point; but, iccording to the time and occasion, to touch ome parts summarily, and to insist chiefly upon ne, viz. The Precedents for the parliamentary 'pjceedings. He agreed, that the great Charter, upon which the liberty of the free subjects f this kingdom is grounded, is in force; and hat, in former times, occasions were often iven to the subject to press it to be connned; and that the commons did fitly and rorthily to maintain the liberties and priilcgcs left unto them by their ancestors.— Ic did also acknowledge, ' That this charter lid extend to the king, ratherthan the subject; rod that the subsequent statutes, 6 in numbe r, land in force; but the difference and doubt ested m the interpretation and application of he statute: for the words of Magna Charta ire general; that it did not restrain the king rom imprisoning a subject; but with this clause, Nisi per legale judicium parium suorum, vel jcrlcgcm terra):' and how far lex terra; extends, 5, and ever was the question. Of the subsequent statutes, some confirm Magna Charta in totidem verbis; and therefore decide not the question, but leave it as they found it; so that to ground any arguments on them will be but petitio principii; and the other? concern not the question now in hand, but were made for redress of inconveniences happening to the subjects, by the suggestion or information of parties ; but this he submitted to the bouse.— In the court of king's bench the judges did not meddle with the statutes, but did ground themselves upon resolutions and precedents; which lie would now repeat, and leave the difference to both houses. We have directed the records to he here; and if it shall seem good to you, we desire that we may read or open what is in the Declaration of the commons touching each record; and then read the record itself, and open what we have to say therein. The 1st Precedent is, That John liiddlcston, n clergyman, by a writ under the great seal, was committed to the Tower, with commandment to keep him safely, ' donee alitor a nobis habueritis in mandatis.' From the Tower he was brought to the King's-bench, and committed lo the marshal. And the lieutenant asked him, It he had any other cause against him? w ho said, No; but the king's writ only: ' Et quia videtnr curiie per breve predict, f|uod nou est sutiiciens causa, &c.'idcn he was bailed.—To this he answered, 1st, That this writ bears date "i March, 10 Ed. :s. and commands to receive John Biddleston from the .sheriffs of London, whom he was formerlv committed in the "fit: and as there is neither general nor spec'al cause, nor yet anv mention upon what warrant or commanel he was committed to the sheriffs of London; so it is true, that dimittitur per manucsptionem: and thus far it seems to uukc fur ihc other side. But, it appears that

this writ was not an original commitment; but a transferring and removing of the prisoner from one custody to another. 2dly, It appears he lay 2 years in the Tower, viz. from 16 till 18 Ed. 3, before he came to the King's-bench. 3dly, 'It appears, in another part of the same record, That the cause of commitment was for suspicion of counterfeiting the great seal; and he was brought to the King's-bench lor that cause: for beinj bailed, and at the day, coming in upon his bail, there came another writ to the justices, which Mr. Attorney read out of the record; which recited, That the king had caused him to be brought to the King's-bench, for suspicion of counterfeiting the great seal, • quousque per quondam informationem plenius inl'ormcmur. And because the informer came not, the writ commands the judges, that if he came not by quiud. then adventuram ejus non cxpectare, but proceed according to law: so that, although in n records) aiitient, it is dilhcult to find out all material parts, yet by this writ, the cause of the commitment appears ; and when the cause appears and is such whereupon the King's-bench may proceed, they must go on according to justice:. It appears by this writ, that he was committed upon the suggestion of an informer; and observe the time; for it scorns that about 5 Edw. 3. and forward, these informers began to be too frcr|uent; and therefore care was taken to relieve the subject against those inconveniences; which, growing more and more, were after complained of ill parliament'—Here Mr. Attorney staid; and after a little pause upon settling whether the lower house would answer particularly to each Precedent, or take all together,

Sir Eilm. Coke began thus:—' Your lordships have well perceived how fairly, and with what respect, we have dealt with you, and ever shall. We brought up unto you what we had resolved on; and not only that, but the cause and grounds of our resolutions, and all our records; the like whereof was never done in parliament: and wo are to maintain what we did. The natural and the politic body have a great resemblance and proportion: and as the natural body hath symptoms of good or evil health, so we hold it a good symptom for us, that Mr. Attorney was so long and so loth to come to it. My lords, we will break order rather than defer the business. This conference is between the two houses. Mr. Attorney is no member of your house: he attends you; but his voice is with us: yet we are so willing to proceed, that we will take no hold of thread*: let him say what lie can, we will allow him a voice here, whore he ought not to speak. We havedelcgatam potcstatem, tantuni periiiissaui, quantum commissaiu; and therefore, for all new matterof this conference, we come with ears, not with tongues. For the resolutions of the judges, we arc glad of them; and we aro confident never a judge in England will be nsainsl what we have resolved. We can say nothing to it; it is new matter; but we will repoit it faithfully to our house.— Qnintilian, a notable rhetorician, for so he was indeed, and taught the rules best, speaks of * simulatio.' It is a figure of rhetoric; and, says he, ' simulatio procedit ut quod diccndo refutare non possimus id tanquam fastidiendo calcitrenius.' Methinks Mr. Attorney lias made use of this simulatio, and hath slighted the acts of parliament; ajul therefore we desire they may be read.'—Here being told by the lord-keeper, That the acts of pari, were well known, and had been all read in our house, he replied, ' I cannot tell, nescio quid energia? habeat viva vox: alns! Litera occidit, spiritus uutem rivificat. To slight these, is tanquam fastidiendo calcitrarc:' and so pressed on that the acts of pari, might be read aud opened. And thereupon began

Mr. jAttleton. 'It is agreed by Mr. Attorney, and resolved by the judges, that the acts of pari, are all in force; and that the statute of Magna Charta concerns the king as well as the subject; nay, the king mther than the subject: the exposition makes all the matter; and chiefly of these words, legem terra;; w hich if they bear not the exposition which we have given them, I would gladly have heard from Mr. Attorney another exposition. I w ill prove our exposition by reason: for if these words, legem terra?, should be extended to the general law of the land, then it should extend to villains, who, by the law of the land, may be imprisoned by their lords without any cause; but so cannot a freeman. But I need not insist upon reason, the exposition is so clear by the ensuing statutes.' And reading the words of the statute 25 F.d. 3. 'By this it appears, that what in Magna Charta is called lex terra;, in the statute of 28 Ed. 3. is called ' process of the law.' And where Mr. Attorney said the words were general, they are as express as any man can pen them in this age; and where he said, that the ensuing statutes extend to imprisonment, upon suggestion of parties, it is equal whether the king do it of himself, or by suggestion of others: but kings seldom do those things merely of themselves; but as things proceeding from some man's suggestion.' Then reading tha statute 5 Edw. 3. he said, 'None would doubt but ' attaching' in that statute, was attaching the body.' And reading the statute 28 Ed. 3. w ithout any special inference ppon it, he read 3G Ed. 3. Rot. Pari. No. 9.

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i' The Lord President's RrpoRT of Second Part of the Conference.

"Mr. Littleton read divers of the statutes, which he cited in the former conference, which was reported here on the 9th of April, and made the same inferences therefrom; and Mr. Attorney delivered another Answer unto the same than what he hud formerly made; which he left to thejudgraentof the lords.—Then Mr. Attorney made his objections to the precedents, alledged by Mr. Selden on behalf of the commons; and Mr. Selden gave several answers unto the same in this manner:

M To the First of the J 2 Precedent", produced

by the commons, to prove their Resolutions,in the Case of John Biddleston, Pasch. 18 Edw. 3. Rot. 33. Rex. To this Mr. Attorney objected. 1. 'That in the return of him into the court, it did not appear that this Biddleston was committed by the king's command: and, 2. That in the record it did appear also, that he had been committed for suspicion of counterfeiting the urcat seal; and so by consequence was bailable in the law,in regard thereappeared cause why he was committed. And he said, That this part of the record, by which it appeared he had been committed for this suspicion, was not observed to the lords in the argument of the commons before used. And he shewed also that there were 3 several kiuds of records, by which the full truth of every award or bailing, upon a Habeas Corpus, is known. 1. The remembrance-roll, wherein the award is given. 2dly, The rile of the w rit, and the return. And 3dly, The scrutc-roll, or scrutefile, wherein the bail is entered ; and that oidy the remembrance-roll of this case was to be found; and that if the other two were extant, he doubted not but that it would appear also upon the return itself, that the cause of die commitment had been expressed.' And so be concluded, That this proved not for the Resolution of the commons, touching the mannerof bail, where a prisoner was committed by the king's special command, without cause shewed.

To these Objections Mr. Selden replied thus: 1st, 'That it was plain that Biddleston was committed by the king's express command; for so are the very words in the writ to the constable of the Tower, ' quod eum teneri & custodiri facias,' &c. than which nothing can more fully express a commitment by the king's command, iidly, Howsoever ^ I" true, that in the latter part of the record it does appear, That Biddleston had been committed for the suspicion of treason; yet, if the times of the proceedings, expressed in therecord, were observed, it would be plain, that the objection was of no force: for this one ground, both in this case and all the rest, i> infallible, and never to be doubted of in the law, that the justices of every court adjud»c of the force or strength of a return out of the body of itself only, and according as it therein appears to them. Now in Easter Term, 18 Ed. S. he was returned and brought before them as committed only by that writ, wherein no caubc is expressed; and the lieutenant or the constable of the Tower of London, that brought him into the court, says, that he had no other warrant to detain him, nisi breve pradictum, wherein there was no mention of any cause; and the court, thereupon, adjudged, that breve pra>dictum, or that special command was not

sufficient cause to detain him in prison:

and

thereupon he is, by judgment of the court in Easter Term, let to main-prize. But that part of the record, wherein it appears that he had indeed been committed for suspicion of treason, is of Trinity Term following; when the kinj, after the letting to main-prize, sent to lh« judges that they should discharge his mainprize, because no man prosecuted him. And at that time it appears, but not before, that he had been in for suspicion of treason; so that he was returned to stand committed by die king's special command only, without cause shewed in Easter Term; and then, by judgment of the court, let to main-prize; which, to the present purpose, is but the same with bail, though otherwise it differ. And, in the term following, upon another occasion, the court knew that he had been committed for suspicion uf treason; which hath no relation at all to the letting of him to mainprizc, nor to the judgment of the court, before given; when they did not, nor could not possibly know any cause for which the king had committed him." —And Mr. Selden said, in behalf of the commons, ' That they had not, indeed, in their argument, expressly used this latter part of the record of Biddleston's case, because it being ouljr of Trinity Term following, it could not concern the reason of an award given by the court in Easter Term next before. Yet, notwithstanding, that they had most faithfully, at the time of their argument, delivered in to the lords a perfect copy, at large, of the whole record of this ca<-e: as they had done also of all other precedents whatsoever cited by them. And, as touching those 3 kinds of record, Mr. Soldeti answered, that it was true that the scruteand return of this case of fiiddlcston was not to be found; but that it did not lessen the weight of the precedent, because always in the award or judgment drawn up in the remembrance roll, the cause, whatsoever it be, when any is shewed upon the return, is always expressed: as it appears clearly by the constant entries of the court of King's-bench. So that if any cause had appeared to the court, it must have appeared plainly in that part of t|ie roll which belongs to Easter Term, wherein the judgment was given. But the return of the commitineot, by the king's command, »ithotit cause shewed; and the judgment of court, that the prisoner was to be let to mainprizc, appears therein only: therefore, notwithstanding any objection made by Mr. Attorney, Mr. Scldcn affirmed this case to be a clear proof, amongst many others, touching that resolution of the commons."

"To the Second, which was Parker's case in 24 Hen. 8. rot. 37. Mr. Attorney's Objections were, 1. 'That it is true, that he was returned to be committed ' per mandatmn domini regis;' but that it appeared that this command was certified to the sheriffs of London by one Peck. And that in regard the command came no otherwise, the return was held insufficient: and therefore he was bailed. 2. That it appears also in the record, that he was committed 'pro suspicionc felomc, ac per mandatum domini regis;' so that in regard that, in the expression of the causes of this commitment, suspicion of felony precedes the command of the king, therefore, it must be intended that the court took the cau.^e, why the king com

mitted him to be of less moment than felony; and therefore bnilcd him. For he objected, that" even the commons themselves in some arguments used by them, touching the interpretation of the Statute of Westminster the First, ch. 15, about this point, had confirmed that, in enumeration of particulars, those of greatest nature were first mentioned; and it was supposed, that such as followed are, usually, of less nature or moment.—Mr. Selden replied to the first Objection, 'That the addition of the certifying the king's command by l'eck, altered not the case. 1st. Because the sheriffs, in their return, took notice of the command, as what they were assured of; nnd then, howsoever it came to them, it was of equal force, as if it had been mentioned without reference. 8. That as divers patents passed the great seal by writ of privy, seal, nnd are subscribed ' per breve de privuto sigillo, so divers * per ipsura regem,' and are so subscribed: and often times, in the roll of former times, to tlie words per ipsum regem are added nunciat. A. B. So that the king's command generally, and the king's command related or certified by such a man to this purpose, is of like nature. 3. In the late great case of the Habeas Corpus, where the return of the commitment was ' per speciale mandatum domini regis, mihi significatum per dominos de privato consilio;' tlie court of King's-bench did agree that it w as the same, and of like force as if' mihi significntum, &c. had not followed, and that those words were void. According whercunto, here also 'per mandatum domini regis nunciat. per R. Peck,' was to be taken as if ' nunciat. per R. Peck, had been wholly omitted, and void.— Likewise, and in truth, in that late case, tins case of Parker was cited both nt the bar and bench; and at the bench, it was interpreted by the judges no otherwise than if it had been only ' per mandatum domini regis' in this place of it.—But the objection made there was of another kind; as now delivered in the first argument made out of the precedents, in behalf of the commons. Then for the second, touching the course of enumeration of the causes in the return; Mr. Selden said, That, howsoever in some acts of pari, and elsewhere in the solemn expressions used in the law, things of greate r nature precede and the less follow; yet in this case the contrary was most plain; for in the return, it appears that thero were 3 causes of detaining the prisoner; surety of the peace, suspicion of felony, and the king's command: and surety of the peace is first mentioned, which is plainly less than felony. Therefore it is as plain (if any force of argument he here to be taken from this enumeration) that the contrary to that, which Mr. Attorney inferred, is to be concludod: that is, as felony is a greater cause than surety of the peace, so the mutter, whereupon the king's command was grounded, was «rcater than felony: but, in truth, tlii-> kind of argument holds neither way here; anil whatsoever the. cause was, why the king committed h;iu, it »'« impossible for the court to know; and it might also have been of very high moment, in a matter of state, and yet of far less nature than felony: all which shews this precedent huth its full force also, according as it was first used in argument by the commons.

"To the Third, which is Brink's case, 35 Hen. 8. rot. 33. the objection by Mr. Attorney was, ' That there was a cause expressed 4 pro suspicione felonia;,' and though ' pro aliis causis illos moventibus' were added in the return, yet because, in the course of enumeration, the general name of ' alia,' coming after particulars, includes things of less nature than the particular doth: therefore, in this Ciise, suspicion of felony being the first, the other causes, afterwards generally mentioned, must be intended of a less nature; for which the prisoner was bailable ; because he was bailable lor the greater, which was suspiciou of felony.' —Hereto Mr. Seldcu replied, ' That the argument of enumeration in these cases is of no moment, as is next before shewed; and that, although it were of any moment, yet the 'alia causa,' though less than felony, might be of verv great consequence in matter of state, which is pretended, usually, upon general returns of command without cause shewed: and it is most plain that the court could not know the reasons why the prisoner here was committed; and yet they bailed him, without looking further after any unknown thing, under that title of matters of state, which as well might have been in this case as in any other whatsoever.'—[The Objections made by Mr. Attorney against the 4th, 5th, Oth, and 7th Precedent*, nlledgcd by the House of Commons in favour of their Resolutions, with Mr. {Seidell's Answers thereto, arc omitted in the Journals.]

"To the Eighth, which is Brow ning's Case, 20 F.liz. rot. 72, it was said by Mr. Attorney, 'That he was hailed by a letter from the lords of the council,directed to the judges of the court: hut being asked for that letter or any testimony of it, he could produce none at all: but said, he thought the testimony of it was burnt among many other things of the council-table, at the burning of the banqueting house. To the Ninth, being llarcourt's Case, 40 F.liz. rot. 02, the self-same objection was made by him, but no warrant was shewed. To the Tenth, which is Catesby's Case in Hillary vacation, 43 F.liz. Mr. Attorney said, 'That it was by direction of a privy seal from the queen; anil to that purpose, he shewed the privy seal of 43 F.liz. which is at large amongst the transcripts of the records, concerning bails taken in cases where the king or lords of the council assented.'—But Mr. Selden replied, ' That the privy seal was made only for some particular gentlemen mcntiimed in it, and for none other, as indeed appears just; and then .Mr. S. said, that it was likely that latesby here had a privy seal in his behalf, because those others had so.'

"To the Eleventh of these, which is Bcckwi;h's Case, 12 Jac. rot. ljj, .Mr. Attorney

said, 4 The lords of the council sent letters to the court of the King's-bench to bail him ; and he produced a letter, which could not be found when the arguments were made at the first conference.'—To tliis Mr. Scldcn replied,' That the letter was of no moment, being only a direction to the chief justice, and no matter of record, nor any way concerning the rest of tbejudges; and, besides, either the prisoner was bailable by law, or not bailable ; if bailable by the law, then he was to be bailed without any sucb letter; if not bailable by the law, then plainly the judges could not have bailed him upon the letter without breach of their oath; which is, that they are to do justice, aceording to the law, without having respect to any command whatsoever. So that the letter in this case, or the like in any other case, is, for point of law, to no purpose, nor hath any weight at all, by way of objection, against what the record and judgment of the court shew us."

"To the Twelfth and last of these, which is sir Tho. Mounson's case, 14 Jac. rot. 147. the same objection was made over again by him, which was moved and answered in the argument at the first Conference; and that one ground which is infallible, that the judgment upon a return is to be made out only of what appears in the body of the return itself, was again insisted upon by Mr. Selden, in this case; as it was also in most of the rest.

"After Mr. Attorney's Objections to these 12 Precedents, and the Replies given to those objections, Mr. Attorney came next to those, where the assent of the king or the privy-council appears to have been given to au enlargement: and he made the same kind of objections as are moved and answered before: and, for so much as concerns letters of assent or direction; the same was here said again, by way of reply to him as before, touching the letter in Beckwith's case."

"The Earl of Hertford's Rfport of the Third Fart of the Conference.

"After Mr. Attorney had made his Objections, and the gentlemen of the commons bouse their Answer, to what had been said touching the 12 Precedent*, brought all for express testimonies, for the main;enancc of the Resolution of the commons; and after the gentlemen of the commons had given their Answer to that which was objected, out of such precedents a' shew some assent of the king's attorney, or of the lords of the council, to the bailing of prisoners committed by such special command: Mr. Attorney came to urge the 0 precedents for the other side ngainst that resolution ; which 8 were mentioned, aud copies of them given in at the first conference.

"Of these 8, the first four were urged by Mr. Attorney, as being of one kind; the difference of them being only such, that saving the names of the persons and prisons, they are but one and the self-same. The force of these 4 he objected thus: 'That Everard, for the purpose in the first of them, which is 5 Hen. 7. rot. 18. Cherry, in the 2nd of them, which is 8 Hen. 7. rot. 12. Burton, in the 3rd of them, which is 9 Hen. f. rot. 14. and Urswick, in the 4th of them, which is 19 lien. 7. rot. 23. were returned into the King's-bench upon several writs of Habeas Corpus, to have been committed and detained in the several prisons whence they came, per inandatum domini regis; and that, upon that return, they were committed to the marshal of the King's-bench: and that however it hath been objected against these 4 precedents, that this kind of commitment, by the course of that court, was always done before the bailing of the prisoners, yet that it did not appear that they were bailed.—Mr. Selden's Answer to this objection was, 'That by the constant course of the King's-bench, whosoever came by Habeas Corpus, or otherwise upon any writ, into that court, cannot be bailed until he be first committed to the marthai of that court; and that thence it was that all these 4 were committed to the marshal, ns appears by the entry, 'qui committitur marescallo,' &c. which is the usual entry in such a case; and that all the clerks of that cjurt acknowledge this course of entry to be most constant and perpetual: so that all the inference that can be made out of these 4 is but this, that i prisoners being brought from several prisons, by Habeas Corpus, into the King's-bench, and returned to stand committed 'per mandatum domini regis,' were so far from being remanded by the law; that in all these 4 cases, they were first taken from the several prisons, wherein they had been detained by such a general command; which could not have been, if they hnd not been adjudged in every of these cases to have been bailable by the court: and that this commitment of them to the marshal of the King's-bench, was the first step towards the bailing of them, as in all other cases: but that it appears not, that either they ever demanded to be bailed, or that they were able to find sufficient bail: and if they did not the one, nor rould do the other, it might follow indeed, that they were not bailed; but this commitment to the King's-bench, being the first step to the bailing of them, (as by tlie constant course it ii) shews most plainly that they were bailable by the law; which is the only thing in question."

"To the 5tli of these 8 bcingjFage's Case, in 'i Hen. 8. rot. 23. Mr. Attorney objected thus: 'That Page was committed to the marshal of the houshold ' per mandatum domini regis ibidem salvo custodiendo, &c. qui committitur inarescallo hospitii domini regis;' by which it appears, as he said, that the court remanded bito to the prison of the Marshalsca of the housliold. And he said, 'That whereas it had been objected at the first conference, that there was some mistake in the entry, he said, he conceived indeed there was a mistake; nnd that the mistake was, that the clerk had entered 'committitur' for'remittitur;' and that it should have been, 'Qui remittitur marcscallo hospitii domini regis ;' for whenever they remand the prisoner ' remittitur' and not ' committitur

should be entered: and that mistake being so rectified nnd understood, he conceived that it was a direct precedent against the Resolution of the commons.'—To this .Mr. Selden answered, 'That there was no doubt indeed but that a mistake was in the entry by the clerk; but that the mistake was quite of another nature: the addition of these words, ' hospitii domini regis' was the mistake; and the entry should have been, 'Qui committitur inarescallo,' &e. only: that is, he was committed to the marshal of the King's-bench. And so indeed the force of this precedent should be but just the same with the first 4. But that the ignorance of the clerk that entered it, and knew not how to distinguish between the marshal of the king's houshold, and the marshal of the King's-bench, was the cause of the addition of those w ords, ' hospitii domini regis.'—And to confirm fully this kind of interpretation of that precedent, and of the mistake in it, Mr. Sclden observed, ' That there is, in the margin of the roll, an infallible character that justifies as much; for, by the course of that court, whensoever a prisoner is committed to the marshal of the King's-hcncli, and not remanded, the word marcscallo is written by Ma and r turned up; and that it is never written there, but when the meaning and sense of the entry is, that the prisoner is committed to the prison of the same court.—Now, in this case, in the margin, Ma and the r turned up is likewise written; which most clearly shews, that the truth of the case was, that thin Page was committed to the marshal of the King's bench, and not remanded; for if he had been remanded, neither could the entry have been, committitur, nor should the margin of the roll have had inarescallo written in it."

"To the sixth of these !! precedents, being the case of Ctesar, in 8 Jac. rot. 99. Mr. Attorney objected thus: 'That Ca?sar, being committed ' per mandatum domini regis' to the Mnrshalsea of the houshold, was returned upon Habeas Corpus to be so committed, nnd therefore detained in prison; and therefore the entrvis, ' qui remittitur prisome niarescalli predict;' by which it appears clearly, that lie was remanded to the same prison from whence he came.' To this Mr. Selden answered, 'The usual entry of a remittitur, when it is to shew that the court, by way of judgment or award, upon resolution or debate, remanded the prisoner, is ' remittitur quousquc,' &c. which is 'remittiturquousque secundum legem dclibrratus fuerit:' But when they advise, or give day to the keeper of the prison to amend his return or the like, then the entry is only remittitur generally, or remittitur prisonaj pradictae. Though it was indeed affirmed by Keeling, a clerk of experience in that court, that the entry of 'remittitur' generally, or 'remittitur prisons; prtedicta;,' was indifferently used for the same, that is 'remittiturquousque, &c.' yet it was expressly shewed by Mr. Selden, that there was sometimes a difference, and that so it nii«ht well be in this case: for in the last of these 8 precedents whieli is

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