them.

relation of part of that which before, upon | of some commentaries, or helps, to expound the like commandment, I had spoken before the lords in their house, upon the occasion of "It hath been said on the other side, That that Declaration, which was sent to the lords these subsequent statutes do expound these from the commons house. The course I then general words; and that' per legem terræ' is took, was this: after I had first set down the to be understood 'per debitum legis processum,' state of the question between us, and spoken i. e. by indictment, presentment or original somewhat of the statutes, which were menti-writ. Surely, this cannot be the true meaning oned and insisted upon, by that Declaration, of these laws: for then it must necessarily folto maintain the tenet or proposition of the low, that no offender could justly and legally commons, concerning their personal liberties; be committed, and restrained of his liberty, I came to the precedents, which were delivered unless he was first indicted or presented by a on either side, and opened the reasons and jury, or that an original writ be brought against applications of them one by one; and spent him; which neither is nor ever was, the practhat day on that part of the work, as being tice of this kingdom in criminal cases. For the most weighty, and that on which my lords then could not a constable, (which is the lowest the judges of the King's-bench, grounded their and yet the antientest officer of the crown) nor resolutions and rule they gave there: that a justice of peace, but in these cases only which now remains to be spoken unto, is, where there is a precise statute to warrant him, the Opinions and Resolutions of the Judges either apprehend or commit one to prison, or and sages of the law in former times, touching set a knave in the stocks, for a just suspicion; this question; and the reasons, which have nay if he was taken, he could not, according been given on either side, to maintain or op- to this doctrine, be committed, unless the fact pose that which hath been aflirmed in this was first presented or found by a jury. I appeal case.-I shall not, willingly, draw you back to to you all, whether, if this should be held for a any thing which hath been formerly said, but direction, I may not truly say, In hoc erravifor so much only as is of necessity: for, before mus omnes?' and whether it would not be too we proceed to these parts now to be spoken late, and utterly in vain, to proceed against unto, it will be necessary that I do, clearly and offenders, when they must be left at large until plainly, lay down the true state of the ques- the indictment was first found, or presentment tion; that so we may apply the resolutions and made against them? For, surely, they would reasons ad idem. This, as it is delivered in then provide for themselves, and be gone writing from the commons, stands upon two when they should be proceeded against.---separate resolutions; but it is fit to join them And for a writ original in criminal cases, I together, for they make but one entire propo- profess I know not what it means, if it be sition, and are so linked together, and depend not at the suit of the king. Therefore one on the other, as they cannot be severed. doubtless, there is some other meaning of The words of this proposition are these, "That these words: and that they can be no otherno freeman ought to be committed or detained wise understood, but of a legal proceeding in prison, or otherwise restrained, by command to judgment or condemnation: but can, in no of the king, or the privy-council, or any other; wise, be meant of the first commitment, or unless some cause of the commitment, detainer, putting into safe custody, to the end the party or restraint be expressed; for which, by law, accused may be sure to be forth-coming.-But be ought to be committed, detained, or re- if ye will vary the case thus far, as to say, strained:" And, afterwards, "That if a free- that by these laws no freeinan ought to be man be committed, or detained in prison, or committed, or imprisoned without just cause, otherwise restrained, by command of the king, this I shall agree to be good law, and shall privy-council, or any other; no cause of such willingly subscribe unto it; that neither the commitment, detainer, or restraint being ex- king's privy-council, nor the king, nor any pressed; and the same be returned upon an other, have power, that is, have a just and Habeas Corpus granted for the party; that warranted power, to commit any freeman then he ought to be delivered or bailed." (See without a just cause.-But herein stands the p. 259.)—To maintain this as it is propounded; difference; whether this cause must be always the words of the statute of Magna Charta, expressed upon commitment; and whether cap. 29. are laid down as a foundation, nullus such cause so expressed, must always be legal liber homo imprisonetur, nisi per judicium and warranted by the strict rules and letter of parium suorum, vel per legem terræ ; and the the law; or whether the law hath not ever G subsequent statutes have been read and en- allowed this latitude to the king, or his privyforced, as confirmations and explanations of council, which are his representative body, and that passage. I shall not draw your lordships do what they do in his name and by his power, back further into the consideration of these stain extraordinary cases, to restrain the pertutes, than only to put you in mind that the statute of Magna Charta doth not contain, or express, any definitive words of this declaration: nor hath it any words in it more particular than these, nisi per legem terræ.' Therefore, the words being general, they bave need

VOL. II.

sons of such freemen, as for reason of state, they find necessary for a time, without the present expressing of the causes thereof which, if it should be expressed, might discover the secret of the state in that point, and might easily prevent the service by that disco, ry?

X

as in a personal action is such : for there the words are præcipimus tibi quod capias, and yet there the defendant is repleviable by the commen law. And as to the commandment of the jus tices; it is intended their absolute commandment. And, in the same chapter, in the next leaf he saith, That if one be committed by the absolute command of the justices, he is not bailable. As if the justice command one to prison without shewing cause: or for misdemesnor before himself, or for such a thing as lieth in the discretion of a justice more than his or dinary power.-My lords, I pray observe this part of his opinion also; for it makes full against the tenet of the house of commons: for that goes general, That the King, nor no other, can commit without cause shewed;' which, as here appears, the justices of the king may do. My lords, have the justices this power and this latitude, and shall it be believed that the king himself, who is Justiciarius Regni, and is the fountain of justice, may not be trusted with that power? And, that this is the power of the justices, appears also by another authority, in our books in 31 Hen. 6. fol. 11. in one Selbie's case, (the opinion of that reverend judge For tescue) that if the judges do commit a man, without shewing a cause thereof or without making any record thereof, as many times they did, it shall be intended to be lawfully and well

What hath been the use and practice in all ages, in these cases, appears by the many precedents, which have been remembered and read unto you of which I shall say no more than this. It is not the confidence by which they be delivered or applied on either side, that makes them better or worse, or more or less to the purpose, for which they were brought; and therefore I shall recommend them to your lordships memories, and great judgments and wisdom, to weigh them and every of them. And now I come to the authorities and resolutions of former times, which have been remembered. There hath been some mention and reliance made, for this matter upon the Statute of Westminster 1. ch. 15. which was made in 3 Edw. I. and this, as I said heretofore, did explain this great doubt: by the gentlemen of the commons it hath been much insisted upon, and a great deal of pains taken to prove, that that statute was made for sheriffs, and such other inferior or ministerial officers; and did not extend to the judges, who are neither mentioned nor meant thereby. Surely, my lords, I shall much ease that pains; for I do agree, that that statute was made for the direction of sheriffs and such ministerial officers; and for their punishment when they should offend in cases of setting prisoners at large by plevin: but that which I affirm upon that statute, to this purpose, is, That in the re-done: and as Mr. Stamford's opinion is in this cital of that statute, it is agreed what the com- case, so it appears in the book called 'The mon law was before; which is, that in those register,' which is the book of our writs, which cases there mentioned, which are 4, they were are the foundation of all our proceedings at not repleviable at the common law.-If at the law; where, in the writ of Homine replegiando, common law this was so, then it was long be- it is recited, that there are some persons, fore the statute of Magna Charta; and if it was secundum consuetudinem Angliæ non sunt so at the making of this statute, then Magna replegiabiles,' and, in one of those writs, it is Charta had not altered it. And observe, I expressly mentioned thus; ' nisi captus sit per pray, that this was made in the time of the speciale præceptum nostrum, vel capitalis jus son; not in the time of the father, when the titiarii nostri, &c.' And Mr. Justice Fitzher statute of Magna Charta was made: and this bert, a great and a learned judge, in his Na statute of Westm. 1. doth not recite that these tura Brevium,' (which is as a-commentary upon 4 sorts were not repleviable by sheriffs; but the Register,) holdeth the same opinion.-I generally, that they were not repleviable at all: shall next to this remember unto you the reamongst which 4 those who are committed by cord of the 21 Ed. I. in Parl. Rot. 2. which is the command of the king himself, is one of that of the sheriff of Leicester and Warwick, those sorts; and this is the same exposition, where it is twice recited, quod nullam faceret which I find Mr. Justice Stamford makes of it, gratiam, meaning, in his letting to plevin: s who was a reverend judge of the court of com- that it appears by that, and by all our records, mon pleas, at that time, when he wrote the that letting to bail in all cases, not expressly Treatise of the Pleas of the Crown; in which directed by some statute, is, ex gratia curia; treatise, fol. 72. after he hath recited the sta- and if ex gratia, then it is not ex debito; for tute of Westm. ad verbum; his own words are they are contradictions. And that is coD. thus: By this statute it appears, that in 4 trary to the tenet of the commons: for they cases at the common law, a man was not re- put a necessity upon the judges, that they must pleviable: and these were such as were taken deliver or bail. Next to this is the opinion of for the death of a man; or by the command-Newton, 22 Hen. 6. fol. 52. which is but a sin ment of the king; or of his justices; or for the gle opinion, and that but obscure and dark: forest. For the death of a man, he saith, he for he saith, that a man, committed by the had spoken before; and as for the command- command of the king, is irrepleviable by the ment of the king, it was intended the command- sheriff: and this is the scope and intention of ment of his own mouth or of his council, which that book: but some other words follow, whereare incorporated with him, and speak with of hold is taken, That the friends of the party the mouth of the king himself, for himself. If ye may resort to the justices, and pray a supersewill take thesewords of a commandment general-deas. How this is meant, and by what means ly; ye may say that every commandment by capi- it can be done, and what supersedeas is intend

which

6

ed, is so obscure by that book, that it will and not otherwise: and of later time, when make very little to the present purpose.-Next one was committed to prison for the Pow is the book of 33 Hen. 6. fol. 28. the case of der Plot, he was bailed by them upon an HabePoynings, where there is a return made, that as Corpus: but this was by letters of the privycaptus or detentus fuit per dominos or per council; which gave warrant so to do: which duos (take it either way) de consilio regis, pro letters are filed in the crown-office. These are rebus regem tangentibus. This book is an au- the letters which concerned Beckwith and thority in this point, for the king: for the re- Reyner; and which have been read already to turn is accepted of, and allowed to be good, your lordships. In 34 Eliz. it was resolved by But I confess ingenuously, I do not much rely all the judges of England, that the cause of the upon this book neither on this side; because commitment should not be returned; and therethe matter is not debated at all there, but pass- fore, where sir S. Saltonstall was returned to be eth by way of admittance.-The next is the committed per mandatum privati consilii domini Resolution of all the Judges, in 34 Eliz. Here regis, the court would not meddle with him, Mr. Attorney read the latter part of it, which but held the return sufficient enough. And sir concerneth this general question; all the form- Edw. Coke, being then chief justice of that er parts being of commitments, made by par- court, said, That if the privy council commit ticular counsellors, to the prejudice of particu- one to prison, he is not bailable by any court lar persons in their suits; and many times in in England: for where the statute of Westm. their executions after judgments: but, in this 1. saith, That he, which is committed to prison latter part, as appeareth by the words, it doth by the commandment of the king, cannot be agree, That the courts of justice ought not to let to mainprize; Stamford makes this interpredeliver, or bail, where the commitment is by tation, that by the king is well intended his the command of the king or his council. And privy council, who are the representative body touching the return of the cause, upon an Ha- of the king. And that sir Edw. Coke added, beas Corpus, they agree it ought to be either he knew a bill put in by Mr. Morice, attorney generally, or specially, expressed: if then a of the court of wards, into parliament; by general expression be enough, it is agreeing which it was desired that the statute of Magna with the general return of per mandatum Charta, chap. 29. might be explained.-My domini regis: and, if it must be special, it lords, by the words of this case thus reported, must be so special as that all the circumstan- and by the opinion of those reverend judges, ces must be made to appear to the court, that you see how many things before cited have authey may be able to judge thereof. There- thority and life given unto them, not only in fore, that Resolution of all the judges is, in my the main point in the question, but in the reaunderstanding, very plain and clear in this son thereof, you see the true reason of Harpoint; but I submit it to your lordships judg- court's case, and of Beckwith's and Reyner's ments. Next is the Opinion of the Judges, in case; the true meaning of the resolution of 34 13 Jac. in the King's-bench, upon the debate Eliz. by all the judges: (which is now endeavourof Russel's case: and here, by the way, I must ed to be turned into another sense) also the exbe bold to observe thus much, that, although position of the statute of Westminster 1. and this be the report of a private student and not interpretation of Stamford likewise thereupon; in print; yet it is such, and of that nature, as and, lastly, that a bill was preferred in parliaall other reports are, (being faithfully collected) ment to explain the statute of Magna Charta : whereupon we, who are professors of the law, and I wish, with all my heart, that, by the do ground opinions; and wherein judges of suc- wisdom of both the houses, a fitting bill might ceeding times do ground themselves, upon the be preferred to compose and to settle, well and opinions of their worthy predecessors: and such equally, this great question.-Next I come to reports, whether in paper or in print, are of equal the opinion delivered in the parliament house, authority with us. For these which are printed, in 18 Jac. whereof I made some mention beby the labours of those worthy men, who have fore, and now am put in mind of it again by taken pains therein, were first collected out of an occasion offered yesterday by one of my such reports in paper. The words of this re-lords in mentioning of it: itwas the words of the port I shall read throughly, because they confirm many passages in these conferences. The words are these; Coke, Crooke, Dodderidge, and Haughton, justices, did hold, that a return that one is committed per mandatum privati consilii domini regis, was good enough, without returning any cause: for it is not fit that the arcana imperii should be disclosed: and as to the case of Harcourt, in 40 Eliz. (a case remembered amongst the precedents cited before) where, in the time of Popham, chief justice, one was committed to the Tower for high treason, and was bailed upon an Habeas Corpus sent for him: this was by a special command of the queen, or of the privy-council,

rev. and learned gent. sir Edw. Coke, upon whose opinion I have much grounded myself. It was upon occasion of a bill, then preferred in parliament, entitled, 'An Act for the better securing the Subject from wrongful imprisonment, contrary to Magna Charta, chap. 29.' This bill came to a second reading, May 5. 19 Jac. I being then a member of that house. Upon this occasion sir Edw. Coke stood up and said thus; (I have a note of the very words ;) There are divers matters of state, which are not to be comprehended in the warrant, for so they may be disclosed. One committed by the body of the council is not bailable by law, resolved so by all the judges in Wray's time, (that, my

set down; but, before I come these to reasons, shall crave leave to remember unto you th case of 33 Hen. 7. in parliament, and the othe two authorities, which were cited by this ro verend gentleman. And, my lords, as an in

lords, is the Resolution of 34 Eliz. when Wray | possibly be allowed of in that latitude therei was chief justice) upon the commitment of the king or the body of the council: for this is quite out of the statute of Magna Charta.-My lords, that it may appear it was not a sudden opinion, this being the 5th of May; on the 23th of the same month this bill was again of-ference was drawn on the other side, out o fered to the house to be committed; and then the record, of a petition in parliament, S sir Edw. Coke spake to it again and said, That Ed. 3. N. 9. where the petition is in French in 33 Hen. 6. upon an Habeas Corpus, where That the commons pray, that the statute o a party was imprisoned by two privy counsel Magna Charta, and the other statutes, migh lors, pro rebus regem tangentibus; that being be duly observed, sans disturbaunce mettr the return it was allowed:' (This, my lords, was ou arrest faire al contre: these words hav Poyning's case before cited) and he said fur- been expounded to extend to personal arres ther,That it was so held in Elizabeth's time, of the subject; but I conceive the sense of thes by the judges, where the commitment is by the words cannot bear that exposition; for the tru privy council, and he thought this so reason- understanding of them must needs be thus, tha able, that he moved for the bill to be recom- Magna Charta, and the other statutes be pu mitted; and so it was, or, rather, it was com-in due execution without any disturbance o mitted perpetually; for no more was done upon delay made, or hindrance to the contrary. And that bill.--My lords, I have now done with to these the king made a full Answer, That i those Opinions and Resolutions; saving that I should be done as was desired. And I shal must crave your patience thus far, to put you willingly subscribe thereto. For the truth of in mind of the many precedents you have this exposition I submit myself to the judgments heard, for every one of them is also a resolution of my lords, who are much better able to judge of those judges, which gave the rule in these of the true meaning of the French words than several cases.--I come now to the last part, I am.-It has been urged, That in the which are the reasons that have been offered Hen. 6. N. 16. the commons in parliament on either side, wherein I shall not trouble desired, that the duke of Suffolk might be comyou long. The reasons delivered on the other mitted; the lords and judges answered, he part have been many, collected and applied ought not to be committed without a cause with a great deal of art and judgment. It showed. My lords, I acknowledge this to be a hath been said by that learned and worthy gen- very just resolution; but give me leave, I pray tleman, who delivered those reasons; 1. That you, to observe, by the way, that here the if the king might thus commit, without cause, commons in parliament preferred a request to the free subjects were in the case of villains. the lords; which upon better examination of 2. Nay, in worse case than villains. 3. That the justness of it, was denied by the lords imprisonment is counted a civil death; and (being assisted by the judges) to be yielded therefore a man imprisoned is as a dead man. unto. And for the resolution itself, it was 4. That the least corporal punishment is very just and honourable; for it were not greater than the greatest pecuniary: therefore, reasonable for a court of justice, especially so if the king cannot inflict the less, as the assessing high and so great a court as the court of parlia of a fine, he cannot do the greater, which is ment, to commit any to prison without a just the imprisoning of the body. 5. That there cause. But, whether this can be fitly applied are diversities of remedies against imprison to the case of the king, or the lords of the ment; therefore some remedy must be applied council, who commit for some great cause, for this, 6. That this extends to all persons, of reason of state, until a due examination may all degrees, of all qualities; therefore it is had of the cause, I humbly subinit to your judg commune periculum. 7. That it is indefinite ments, Another argument was out of the for time; and so may be a perpetual imprison- Acts of the Apostles, ch. 25. the last verse; ment.-Arguments were drawn a fine, ab ho- where Festus being then viceroy or deputy to nesto, ab utili, à tuto. And, lastly, two the emperor, and having in purpose to send authorities were remembered by him.'-All Paul unto Cæsar, said, he thought it unreason these Reasons I shall, with your favour, re- able to send him, and not to send with duce to oue general head: The Liberty of the him the cause of his commitment. free Subject of this kingdom; which is of great lords, I acknowledge it to be a very di esteem, and is the inheritance of the subject. creet resolution of Festus; who although he I acknowledge it to be very true that which was a mere moral man, yet he held it a hath been said thereupon; and I am also of wise and discreet position not to send a prithis mind, that he is not worthy to enjoy his soner to Cæsar, his superior, to whom he was liberty, who would not by all just means en- to give an account, and not to send with him deavour to preserve and maintain it."--I know the cause for which he should be tried, and of it is a play sible argument; but I shall humbly which he was accused. But, whether this do desire to lay in the other scale these Reasons, prove any thing in our case in question, I which I shall offer unto you on the other side, humbly refer to your judgments; where not why personal liberty, in such sort as is desired the inferior to his superior, but the superior to by the resolutions of the commons, cannot his inferior sends the prisoner, to whom he is

in

be

My