f in that late must needs be th not bound to give that account.-And now, my queen Eliz. which many of the lords can uch better able: ment was out erior, to whom he hould be tried, and him with ordering of the parts: and there are many cases, of infinite importance to the subject, and of undoubted trust. reposed in the press it; and so is the authority in 37 Hen. Brook's Abstracts. So may he, after the affra apprehend and commit to prison, the pers that hath wounded a man, that is in peril death, and that without warrant or process; it is in 38 Hen. 3. fol. 6. Also any man, th is no officer, may apprehend a felon witho warrant or writ; and pursue him as a wo a common enemy to the common-wealth, as t Book is 14 Hen. 8. fol. 16. So may any ma arrest a night-walker; because it is for t common profit, as the reason is given, 4 He 7. fol. 18. and so may a watchman, 4 Hen. fol. 2. In like manner the judges, in their sev ral courts, may commit a man, either for co tempts or misdemeanors, without any oth process or warrant, than Take him Sheriff,' questioned by a subject of the king, why he did thus or thus. It may be urged, If the king is trusted with the coins and monies of the kingdom, he may, of his own absolute power, abase or inhance them; he may turn our gold or silver money into brass, or base money, and in one instant undo his people thereby. If he is not to be trusted, he may make wars; he may conclude peace or leagues; and these may be fatal to the whole kingdom; to the liberty and to the lives of his subjects. The answer is, he will not do this to the hurt of his people. Again, he hath power to pardon traitors and felons; the good people of the land may suffer by too great an extent of mercy; and the good may be devoured of the bad. No, the king will not do hurt to his people thereby. The king hath power, without number or lini- Take him Marshal,' or Warden of the Fleet tation, to make strangers to be denizens: it and the adversary will not deny but, if ti may be said that this lets in a flood of strangers king will alledge a cause, he may commit to eat up the bread of natural-born subjects: man only by his mandatum, as the judges d but this receives the same answer, The king without other process or warrant. And vario will not break the trust committed to him by are the cases that may be instanced, wher God. But my lords, do I, by this, say or there may be lawful commitment without pr maintain, that a king hath liberty to do what cess: and therefore the words in the statut he lists? No, God forbid: he is set over his per legem terræ, cannot be restrained to so na people for their good; and if he do transgress row bounds as to imprisonment by process and do unjustly, there is a greater than he, the wherefore I do positively, and with confidend King of Kings; respondet superiori. And as affirm, That if the imprisonment be lawfu Bracton, an old writer of the law, said, 'Satis let it be by process, or without process, ei sufficit ad pœnam, quod dominum expectat is not prohibited by this law. This bei ultorem.'-I beg leave to conclude with observ- granted, then the question will aptly be mad ing, that these gentlemen of the house of com- Whether the king or council may committ mons have done like true Englishmen, to main-prison per legem terræ ? And, if they may tam their liberties by all the good and fit means they may; and myself, as one of the number, shall desire it likewise: but I fear also they have done like right Englishmen; that is, as we usually say in our proverb, they have overdone: they have made their proposition so unlimited, and so large, that it cannot possibly stand; and it is incompatible with that form f government, which is monarchy, under which we happily live.” of g whether of necessity they are obliged to de clare a cause? To clear this, we must conside what is lex terræ; which is not so strictly t be taken as if lex terra were only that par of the municipal law of this realm, which w call common law; for there are divers othe jurisdictions exercised in this kingdom, whic are also to be reckoned in the law of the land in Cawdrey's Case, Coke's 5th Report, fol. 3 the ecclesiastical law is held the law of th Mr. Serjeant Ahley spake next. I hope it land to punish blasphemics, apostacies, here will neither be offensive nor tedious to your sies, schisms, simony, incest, and the like, fo lordships, If I say somewhat to second Mr. At- a good reason there rendered, viz. That other torney; which I rather desire, because yester-wise the king should not have power to de day it was taken by the gentlemen that argued on the behalf of the commons, that the cause was as good as gained by them, and yielded by us, in that we acknowledged the statute of Magna Charta, and the other subsequent statutes to be yet in force: for from this they inferred this general conclusion, That therefore no man could be committed, or imprisoned, but by due process, presentment, or indictment; which, we say, is a non sequitur upon such our acknowledgment: for then it would follow, by necessary consequence, that no imprisonment could be justifiable but by process of law; which we utterly deny: for in the case of a constable, cited by Mr. Attorney, it is most clear that, by the antient law of the land, a constable might, ex officio, without other warrant, arrest and restrain a man to prevent justice to subjects in all cases, nor to punis all crimes within his kingdom. The admiralty jurisdiction is also lex terræ, for things don upon the sea; but if they exceed this jurisdic tion, a prohibition is awarded upon this statute of nullus liber homo; by which it appears the statute is in force, as we have acknowledged The martial law, likewise, though not to be exercised in times of peace, when recourse may be had to the king's courts, yet in time o invasion, or other times of hostility, when an army, royal is in the field, and offences are committed which require speedy resolution, and cannot expect the solemnities of legal trials, then such imprisonment, execution, other justice done by the law martial, is warrantable; for it is then the law of the land, and is jus gentium, which ever serves for a dinary proceedings cannot be had. And so it as to commit an offender to prison? In 10 Hen. is also in the case of the law-merchant, which 6. fol. 7, it appears, That a steward of a court. is mentioned 13 Edw. 4. fol. 9, where a mer- leet may commit a man to prison; and shall chant-stranger was wronged in his goods, which not the king, from whom all inferior power is he had committed to a carrier to convey to derived, have power to commit? We call him Southampton, and the carrier embezzled some the Fountain of Justice; yet when those of the goods; for remedy wherein the merchant streams and rivulets which flow from that founsued in the Star-chamber for redress. It is tain are fresh and full, should we so far exhaust there said, that merchant-strangers have the that fountain as to leave it dry? But they that king's safe conduct for coming into this realm; will admit him so much power as to commit, therefore they shall not be compelled to attend do require an expressing of the cause! I dethe ordinary trial of the common law; but, mand then, whether they will have a general for expedition, shall sue before the king's cause alledged, or a special? if a general, as council or in chancery, de die in diem, & de they have instanced, for treason, felony, or a hora in horam; where the cause shall be de- contempt? But, to leave fencing, and to speak termined by the law of nature. In like man- plainly, as they intend it, if a loan of money Der it is in the law of the state; when the ne- should be required and refused, and thereupon cessity of the state requires it, they do, and a commitment ensue, and the cause is signified may proceed according to natural equity, as in to be for a contempt; this being equally far those other cases: because in cases, where the from yielding the remedy sought for: why then, law of the land provides not, there the pro- truly, in the next parliament, there would be ceedings may be by the law of natural equity: required an expressing of the particular cause and infinite are the occurrents of state unto of commitment! And how unfit it would be which the common law extends not; and if for a king and council, in all cases, to express those proceedings of state should not also be the particular cause, is easy to be judged; accounted the law of the land, then do we fall when there is no state or policy of governinto the same inconveniency mentioned in ment, whether it be monarchial, or of any Cawdrey's case, that the king should not be other frame, which hath not some secrets of able to do justice in all cases within his own state, not communicable to every vulgar undominions. If then the king, or his council, derstanding. I will instance but one: if a may not commit, it must needs follow, that king employ an ambassador to a foreign couneither the king must have no council of state, try or state, with instructions for his negotiaor, having such a council, they must have no tion, and he pursues not his instructions; power to make orders or acts of state; and, in whereby dishonour or damage may ensue to this case, they must be without means to com- the kingdom, is not this cause of commitment? pel obedience to those acts: and so we shall And yet the particular instructions, and the allow them jurisdiction, but not coercion ; manner of his miscarriage, is not fit to be dewhich will then be as fruitless as the philoso-clared in the warrant to the keeper, nor by pher's Frustra potentia, quæ nunquam redu- him to be certified to the judges, where it is to citur in actum.' Whereas the very act of be opened and debated in the presence of a Westm. 1. shews plainly that the king may great audience. I therefore conclude, that commit, and that his commitment is lawful; for offences against the state, in cases of state or else that act would never have declared a government, the king or his council hath lawman to be irrepleviable, when he is committed ful power to punish by imprisonment, without by the command of the king, if the law-makers shewing particular cause; where it may tend had conceived that his commitment had been to the disclosing of the secrets of state governunlawful, And Divine Truth informs us, That ment. It is well known to many, how much kings have their power from God, and are re- I have laboured in this law of the subjects lipresentative gods; the Psalmist calling them berty, very many years before I was in the the Children of the Most High; which is in king's service, and had no cause then to speak, a more especial manner understood of kings but only examine; yet did I then maintain and than of other men: for all the sons of Adam publish the same opinion which now I have deare, by creation, the children of God; and allclared, concerning the king's supreme power the sons of Abraham are, by recreation, or regeneration, the children of the Most High: but it is said of kings, they are the children of the Most High, in respect of the power that is committed unto them. Who hath also furnished them with ornaments and arms fit for the exercising of that power, and given them scepters, swords, and crowns; scepters to institute, and swords to execute laws, and crowns as ensigns of that power and dignity with which they are invested. Shall we then conceive that our king hath so far transmitted the power of his sword to inferior magistrates, that the hath not reserved so much supreme power in matters of state; and therefore I cannot justly be censured for speaking it at this present, only to merit of my master: but, if I may freely speak mine own understanding, I conceive it to be a question too high to be determined by any legal decision; for it must needs be a hard case of contention, when the conqueror must sit down with irreparable loss, as in this case: for, if the subject prevail for liberty, he loses the benefit of that state government, without which a monarchy may soon become an anarchy: or, if the state prevail, it gains absolute sovereignty, yet loses the subjects, not their subjection: for abedience we must yield, though nothing be left us but prayers and tears; but it loses the best part of them, which is their affections, whereby sovereignty is established, and the crown firmly fixed on his royal head. Between two such extremes there is no way to moderate, but to find a medium for accommodation of the difference, which is not for me to prescribe; but humbly to move your lordships, to whom I submit it." Mr. Serjeant Ashley having ended his speech, the lord President said to the gentlemen of the commons house, That though, at this free conference, liberty was given by the lords to the king's counsel to speak what they thought fit for his majesty's service, yet Mr. Serjeant Ashley had no authority or direction from them to speak in that manner he hath now done.' "The Lord Bishop of LINCOLN'S REPORT of the Fifth and last Part of the CON FERENCE. "The Answers which the commons made to the arguments of Mr. Attorney and Mr. Serjeant Ashley, were to the following effect: viz. Mr. Littleton began and said, "This was a great cause, and peradventure the greatest that ever was in Christendom: nothing like so proper to a private court, as to the court of parliament. They brought with them sufficient authority to justify what is said already: but if any new matter was offered, as he conceived some part of Mr. Serjeant's to be, he brought no more than ears to hear it, but had a tongue to answer to any point urged in this debate; and the proper subject of the discourse.'--And here he entered a Protestation, in the name of the commons, that their intent was not to call in question the power of the king, as well to commit as to hail, but to regulate it and for the method of proceeding he said, That because they were opposed so suddenly, they would collect the heads of the opposition, according to law, and reply unto them. He said, they themselves were gentlemen of the law, the unworthiest of the house of commons, and not the most eminent of their calling; but yet they would clearly maintain the resolutions of their house. For that this controversy, which remains as yet in the nature of a disputation in this house, is already grown and improved as a full resolution in the other.-That Mr. Attorney began with Magna Charta, the subject of this disputation; that is, some general words in the same not rightly interpreted; and, in particular, what this lex terræ meant: that Mr. Attorney assented, That this statute concerned the king as well as the subject, yea, the king principally but he doth not understand by this lex terræ, the same which the commons do, but a general law. You, said he, will have no man arrested but by writ original.' We never said so, replied Mr. Littleton; we never restrained the process of the law to writs original; but by the words Process of the Law,' we understand the whole proceedings of the law; and so take in the constables, and all : those inferior ministers of justice, who, notwithstanding, are never used without a cause, as the constable executes his office when any affray is done, or feared to be done. So in Bagg's case, 11. Report, fol. 99. lex terræ is extended to the jurisdiction of courts; and so involves all proceedings in law. Nay, he said, the learned gentleman near him, sir Edw. Coke, extended the same to a wager in law, in 10th of his reports. This process doth include an original writ; and so goeth the authority of 42 Edw. 3. that' due process of law' must be taken for original; as a part, not as the whole proceedings of the cause.-That Mr. Attor ney's next objection was, that the king was not bound to express, because there may be mat ters of state, fear of revealing, &c. and added this expression, Must be done instantly, and must be true, unchangeable,' &c. Answer, that the ral cause will serve the turn; as treason, suscommons do not require a particular, a genepicion of treason, felony, &c. there are many vitia sine nomine; like those in Aristotle; every species hath a proper name; and what incorveniency can there be to express one of those: Objection: If the cause be expressed, then presently, upon an Habeas Corpus, the party must be delivered or bailed; nay, indeed, delivered if the cause be of that nature. Respons. Commitments are of a double nature; superior, as from a king and council; and here the judges in discretion or respect are not presently to deliver, but to bail; inferior and lower, and here they are to deliver him.-That Mr. Attorney cited for his Answer, in the law, the statute of Westm. 1. chap. 15. which, said Mr. Littleton, non ponit, sed supponit;' makes no law, but declares a law; and all that is pertinent in the same, is the recital that a man is not repleviable in the death of a man, matter of forest, command of the king, and command of the judges.-Here he denies repleviable and bailable to be all one: they differed in nature and place: in nature, for replevin is ty sureties, manucaptores; which they call ple vins. Bailing is delivering to the hands of other men; which still hold him in prison if they please. Then they differ in place. Bailing is ever in a court of record, and to answer body for body. Replevin is in a sheriff's turn; for this difference he offered a Book-Case, 33 and 36 Edw. 3. placito 12. 13. but were they all one, yet this statute is restraining to the sheriffs alone; which he proved out of the first words thereof, And forasmuch as sheriffs and others which have taken and kept in prison, &c.' The word 'others' can never reach unto judges. For, dignissimum in suo genere; the best, by all course, is first named: and, therefore, if a man bring a writ of customs and services, and name rents and other things, the general words shall not include homage, which is a personal service, and of an higher nature, but shall extend to ordinary annual services. He quoted for this 31 Edw. 1. Title, Droit. Fol. 67. So 13 Eliz. C. 10. and others having spiritual promotions,' coming after colleges, deans and chap ters, shall not comprehend bishops, that are of a higher degree; quoted for the abp. of Canterbury's case, 2 Report, Fol. 46. besides that this word others,' is expounded by this statute in the conclusion, to comprehend under-sheriffs, constables, and hailitis; such as kept inen in prison: repleviable and not repleviable, are voces artis; a proper language to a sheriff: but that which receives no answer, is this: that the command of the justices, who derive their authority from the crown, is there equalled, as to this purpose, with the command of the king: and therefore by all reasonable construction, it must needs relate to officers that are subordinate to both strange! are not the judges able to discharge their own commands? also, that this was meant of sheriffs, appears by the recital of 27 Ed. 1. C. 3. De finibus levatis; and so likewise by Fleta, L. 2. C. 52. in the articles of the charges in the sheriff's turn, he hath one, 'de replegiabilibus injuste detentis, & irreplegiabilibus dimissis.' And before, qui debent per plegios dimitti, qui non, declarat hoc statutum,' saith Fleta, speaking of this very statute: besides that they have an express book of it, 22 Hen. 6. Fol. 46. where Newton delivers this opinion, it cannot be intended that the sheriff did suffer him to go at large by mainprize, for where one is taken by the writ of the king, or commandment of the king, he is irrepleviable; but in such cases his friends may come to the justices for him,' &c. Objection: Stamford was a learned judge, but speaks nothing to this question, or against the declaration of the coinmons: Mr. Littleton bid Mr. Attorney read the sentence entire, and then he should find that the word sheriff must reach to all; or Stamford knew not what he said. Then he read it, and concluded that the word sheriff must either relate to all, or else he had not expressed his opinion. For Mr. Attorney's objection, 31 Hen. 6. Fol. 11. of Fortescue's opinion, that in a commitment made by the judges, we ought to presume the cause just. Answer; the commons do so presume of every one committed by the king, or Council; but the question is, If the cause ought not to be expressed, that it may so appear? The place in the Register, De Homine replegiando,' he said, was answered before. To that record, 21 Ed. 1. Rot. 2. Renis's Case; where the sheriff of Warwick and Leicester was censured in parliament, for replevying a man committed by the earl of Warwick; when the king had given him a general command to shew no favour to any committed by that great peer. Answer, That the sheriff was justly punished; for the party was not repleviable by the sheriff, but bailable by the justices. In 22 Hen. 6. By the king's mouth, whereby none can be committed, he understands also the council, which are his mouth; and incorporated with the king; as you heard out of Stamford, 33 Hen. 6. fol. 28, 29. Poining's Case: he denied it was urged for them; but relied upon by Mr. Attorney for the contrary opinion. Yet Mr. Attorney confessed it proved nothing. VOL. II. For that The parties, in this case, committed per dominos de consilio, never desired, nor were ever denied bail or liberty; confessed by Mr. Attorney.-Out of 34 Eliz. containing the resolutions of all the judges, he read some part; and shewed judge Anderson's book under his own hand; insisted upon some words, that implied the cause ought to be expressed; and concluded, That it was neither for their tenet nor against it: for that assertion, that bailing was ex gratia curiæ, he granted it true in many cases; as where the cause doth appear, and the judges hold it fit to make some stay; but not where no cause is shewed. It may be grace, said he, yet it is the constant practice of the court; and herein he appealed to those precedents, offered unto your lordships out of the close rolls. The Report of 13 Jae. which is called Russel's Case, taken by a young student, is a gallimawfrey of 3 or 4 cases huddled together, and put as it were into an hotch-pot. Others interpret it for a sudden remittitur at the rising of the court. And you must note, also, That Russell was never returned to this court again. If a man deliver an opinion of a sudden, that is nothing to the case in hand. Judges, as students find in their year-books, have changed their opinions, and given better reasons for their contrary assertions. And that passage in parliament, 18 Jac. was at best but a sudden ejaculation, grounded upon 23 Ilen. 6. which was nothing material. place, 16 Hen. 6. (Mounstre Defaits,) he answered, that of their authorities some are nearer the question, some farther off; yet all appliable. It is the lignity and honour of the king, Neminem a se tristem dimittere, to act these severities, not by himself, nor his own mouth, but by ministerial officers. Kings have sitten in their beds of justice as Ed. 6. in a trial or rape at the King's-bench: yet did he not prónouuce the sentence, but left that to his justices. It is the honour of the king to command none to prison, but leave it to his inferiour ministers of justice. To that of 1st Hen. 7. fol. 4. Ilussey's report of Markham, That he told Ed. 4. He could not command one to carry any to prison, he said it was a rule in law, that the king can do no wrong: but if he should command one to be arrested without cause, then he might be author of wrong; and, therefore, that is denied him. He touched that place of Fortescue, Proprio ore nullus regum Angliæ,' &c. And here he desired to be rightly understood, for they of the house of commous do not exclude the commandment of the king; for they confess all that are imprisoned, are by his commandment; but it must be with a cause expressed: he said, that 36 Ed. 3. N. 9. is not in print. He saith, that he was in France; and that there he read many of their books: and he appeals to any that understands the language, if, ou arrest faire,' doth not signity to arrest, and not to delay by commandment of the king. Concerning Mr. Serj. Ashley, Mr. Littleton said, That for matter of law be was authorized to answer hin: and for what Y |