The Arguments Made in the Greate Case of Habeas Corpus Sir John Bramston the Elder William Noy Sir Henry Calthorpe Sir Robert Heath Noah Millstone Principal Investigator MPESE Sebastiaan Verweij Co-Investigator MPESE Richard Bell Research Associate Victoria Anker BRIHC Research Impact Fellow Mike Jones Research Software Engineer Manuscript Pamphleteering in Early Stuart England (MPESE) 2017 United Kingdom London British Library Additional MS 35331 Diary of Walter Yonge

British Library, Additional MS 35331

 United Kingdom London British Library Additional MS 48051 United Kingdom London British Library Harley MS 2217 United Kingdom London British Library Harley MS 2234 United Kingdom London British Library Harley MS 4103 United Kingdom London British Library Harley MS 4619 United Kingdom London British Library Hargrave MS 245 United Kingdom London British Library Hargrave MS 39 United Kingdom London British Library Harley MS 252 United Kingdom London British Library Harley MS 37 British Library, Additional MS 48051, iiir–115r British Library, Additional MS 48101, ff. 164r–175v British Library, Hargrave MS 39, ff. 25r–35v, 40r–42v, 55r–v British Library, Harley MS 252, ff. 37r–47v British Library, Harley MS 37, ff. 112r–116v British Library, Harley MS 37, ff. 172r–203v British Library, Harley MS 37, ff. 302r–313r British Library, Harley MS 4103, ff. 10r–96v British Library, Harley MS 4619, ff. 208r–217v British Library, Hargrave MS 245, ff84 British Library, Harley MS 2217, ff. 61r–81v British Library, Harley MS 2234, ff. 282r–292v Bodleian Library, MS Eng. hist. c. 397, ff. 1r–40v Bodleian Library, MS Eng. hist. d. 231, ff. 5r–120v Bodleian Library, MS Rawlinson C 917, ff. 1–232 Bodleian Library, MS Tanner 191, ff88 Bodleian Library, MS Tanner 72, ff. 215r–225 Cambridge University Library, MS Ff.3.17, ff. 116r–182r Folger Shakespeare Library, MS V.b.309, ff. 1r–133r Hertfordshire Archives and Local Studies, XII.A.27 Harvard Law School, MS 1239 Houghton Library, fMS Eng 1084, ff. 119–216 Kent Archives, U1475/Z10 Nottingham University Library, Pw V 85, ff. 1r–75v Parliamentary Archives, BRY/78, ff. 15r–113v Woburn Abbey, MS 4E-60, ff. 68r–76v State Trials 3 114-139 Samuel R. Gardiner The Constitutional Documents of the Puritan Revolution, 1625-1660 3rd ed. 1906 Oxford Clarendon Press 58-64

22 November 1627 Court of King's Bench English Latin legal argument court report speech habeas corpus bail Magna Carta Five Knights' case imprisonment royal prerogative liberty of the subject

Anno: 3: Carolj Regis, Anno: Dom: 1627. The came out A Commission from the kinge to require a loane of all subiectes (throughe the kingdome) of asmuch as every man was upon the booke of Subsedie, beinge 5. subsedyes. As hee that was founde xx:l lande upon the laste subsedy booke was to lende the kinge xx:l Hee that was xx:l goodes upon the Subsedy booke was to lende xiij l vi s viij.d et sic de cæteris/

Some gentlemen beinge Commissioners refused to sitte upon this Commission, others refused to lende: and some of both opinions were by the kinges commaunde Committed to prison, and detayned aboute three quarters of a yere in prison, for there refusall: But att laste the saide prisoners broughte an habeas Corpus in the kinges benche Ter: Mich: Anno:3. Caroli Regis. 1627. where the case was argued; the argumentes of which case followe as they were taken by some presente./

The argum<ex>en</ex>ts made in the greate case of habeas Corpas 22:° Novemb<ex>e</ex>r <lb/> 3:° Carolj in Banco Regis. Betweene the kinge and S<ex>i</ex>r Iohn <lb/> Heningham, S<ex>i</ex>r walter Erle, S<ex>i</ex>r Edwarde Hambdem, and S<ex>i</ex>r <lb/> Iohn Corbett./

Arguments of Sergeant Bramston for Sir John Heningham.

The retourne beinge reade hee moved that it was insufficiente, and that the prisoner oughte to bee bayled: And saide as it was his parte to move the petition of Ser Iohn Heningham, soe hee woulde move nothinge which was againste lawe:/

see this arugment pag: 59. more att large / Hee tooke exception to the retourne, to the manner and legall forme: and also to the matter & substance. To the matter it is to generall, for noe cause of imprisonment is shewed, soe also there is noe tyme mencioned when hee was taken and imprisoned, and therfore insufficiente for matters of substance for theise two causes./

The cause which is retourned is only Mandatum Regis, which is altogeather uncertayne and to generall.

His exception to the legall forme; for that it is not-fully and precisely retourned: as your retournes of Gaylors oughte to be: but it is a retourne of anothers certificate, and not of his owne Conusance. Firste there ought to bee a cause in speciall, or generall: for its the purpose of that write, and the meanes appointed by the lawe for the enlargement and libertie of the subiecte. And all the meanes in the wryte de homine Repleqiando is for that there is a speciall exception that hee is committed by the commaundment of the kinge. salie nisi captus sit pper speciale præceptum meum./

A cause oughte to bee retourned that the lawe maye iudge of the insufficiency of it./ yf it maye not bee retourned particularly, yet generally yt oughte: for otherwise nothinge may appeare to the Courte wherupon they maye iudge: and also that yt maye appeare that there imprisonment is not againste the statute of 25: Ed: 3: cap: 4./ soe by the stat: of 42: Ed: 3. 3. Noe man shalbee taken upon A Suggestion made to the kinge or his Councell, unlesse it bee upon presente matter of recorde, or by proces and write originall, accordinge to the olde Laws of the lande: See the tytle of the acte yf it bee soe that they neede not an expresse cause particularly or generally, then the subiecte shalbee disinherited of the lawe, which is his birth-righte, and inheritance: And therfore hee holdeth all that hee hath retourned voide and evill: For as the subiectes of the kinge are borne for the kinge to doe him and the common wealthe service: soe they are borne to inherite and enioye the lawes, and that every man maye equally haue the benefite of the lawe./

Secondly there is not any tyme expreste of his committment and then noe cause to remaunde him: the write is to bringe the body with the cause: here is a cause expressed for his retayner, but not for his committment/ For what ende was this write ordayned? for the libertie of the subiecte, that yf there bee a sufficiente cause, yf noe cause bee, then hee is to bee enlarged; and maye not bee unlesse the tyme of his imprisonment and cause bee expressed. The tyme is the matter it selfe, for it intendes the most highe cause viz: High Treason yf a man bee imprisoned for suspition before conviction or tryall the p[ar]tie maye have an habeas corpus./

The tyme when hee was imprisoned oughte to appeare that the Courte maye adiudge yf hee none is to bee kept imprison over longe. hath bynn a longe tyme in prison before hee bee put to answere: for otherwise one maye bee kepte in prison duringe his life, only for a suspition, and hee never suffred to have a tryall: which shalbee againste the saide Stat: and lawes of Magna Carta cap:29. nullus liber homo capiatur, vel imprisonetur nisi per legem terræ . And Stat: 28: Ed:3: cap:3. noe free man shalbee taken, or imprisoned without beinge broughte to answere by due proces of lawe: admitte there bee a sufficiente cause retourned which appeares not, then there wilbee a perpetualll imprisonment/ The Iudge oughte not to come upon the presente subiecte but upon that which may happen yf that retourene bee laufull: yf that retourne bee good, then its but the makinge of a neue warrante, and soe the cause shall never appeare, nor the partie ever enlarged which is againste the lawe expreste in the booke of 19: H: 6: 3. where its helde that the lawe is the moste highe inheritance which the kinge hath, for by the lawe hee himself and all his subiectes are are ruled, and yf Anno Domini 1627 are to bee ruled, and yf his lawe were not, noe kinge nor noe inheritance shalbee. West:1:cap:15. The letter of the Stat: is. Forasmuch as before this tyme it was not determined what persons are replevisable and what not, but only of them which are taken for the deathe of a man, or by the commaundement of the West:1: Expounded kinge &c. But our case touchethe not upon that Statute: For there the commaundement of the kinge is intended by wryte, and not by worde: Howe bee it that Stamforde fol: 72: E. saithe that it is understoode of the commaundement of his owne mouthe, or of his Councell which is incorporate to him, spakinge with the mouthe of the kinge himselfe: the same Stat: saithe that such &c shalbee in noe wise replevisable by the common write, that is intended, by the write de homine replegiando expressed in Fitz. Nat: Brev: will any man saye that in all the 4: cases expressed in the Stat: West:1: cap:15. that a man here shalbee perpetually imprisoned, or taken for the deathe of a man is not bayleable, by the common lawe; Note As sherifs are forbidden to bayle any man against Stat: West:1:cap:15. Soe likewise are Iustices of P: by 1:&2: Phil:&Mar: cap:13. But Iudges of Asszes or of the K: benche are not re= strayned by any Statutes but they maye Bayle a prisoner where th'other cannot./ but shall hee not bee baylyed? hee shall by the write of Odio & Atia. Cok lib:9:fol:56./ Bracton Coroner: 24. But by the Stat: 28: Ed:3: cap:9. that speciall write of Odio & atia was for that the imprisonment shall not bee to longe: For the interpretacon of the acte of West:1. men have bynn bayled for highe Treason./ Another exception to the matter, in respette of the generality of the cause of imprisonment and detayning viz: per Speciale mandatum Domini Regis , howe that shalbee intended, yf that were by write, or other= wise. The Statute of Marleb: cap:8. saythe, they which bee taken & imprisoned for a Redisseisen, shall not be deliuered without speciall commaunde, that is intended by wryte, for as hee is imprisoned by wryte, soe shall hee bee enlarged by wryte./

The exception of the manner of the retourne was, for that it hath relation to the signification of another: and the officer himselfe oughte to retourne the cause of his cognizance, and not as hee is cer= tified: therfore yt behoofethe that the retourne bee per mandatum Domini regis, and not by theise wordes nihi signifacatum , for hee is an Officer of the Courte. Soe that yf there bee a false retourne, the partie maye haue remedy, and then the Courte maye punishe him./ This case is not upon presidentes but upon the fundamentall rules of lawe: yet hee recited presidentes in the poynte./ Some of them where the kinge committethe a man without his Councell: some where the kinge and Councell: and some where the Councell alone committeth. 7. H: 8: rotulo.8. Hamson was committed to the Marshalsey per mandatum Domini Regis, and hee was bayled upon a habeas corpus./ 22: H: 8. rott. 37. Iohn Parker was committed to the Marshalsey, and that cause was retourned to bee per mandatum Domini Regis, and upon a habeas corpus hee was bayled. 40: Eliz: Wendon was committed to the Fleete per mandatum Reginæ & consilij sui and hee was bayled upon such a retourne. 8: Iacobi. Cæsar was committed per mandatum Domini Regis, and hee was broughte hither by a heabeas corpus cum causa, and there was a Rule, vnlesse the retourne was amended, the prisoner shoulde bee deliuered. Stamf fol: 72. vpon the Statute of west. 1. hee saithe that the commaunde of the Councell is the commaunde of the kinge, & that the Councell is the mouthe and body of the kinge. 40: Eliz: Thomas Cawridge was bayled out of the Towre upon a habeas corpus. 40: Eliz: Harcote from the Gate-howse; in the same yere Sir Robert Vernon was committed for suspition of Treason per speciale man= datum Domine Reginæ and hee was bayled upon a habeas corpus: For hee oughte not to bee perpetually imprisoned, but oughte to come in due tyme to his tryall./ 12: Iacobi Miles Regnor was deliuered out of the Gatehowse upon an habeas corpus, and in the same yere was Thomas Beckwich bayled./ and in 14: Iacobi Sir Thomas Manson was bay= led out of the Towre, and soe hee prayed that Sir Iohn Hemingham mighte bee bayled./

Argumente of Noy Councell for Sir Walter Erle.

The retournes are much of one tenore. The firste habeas corpus was dated 4: November yet the prisoner came in upon a sicut alias: and the warrante for his restraynte was dated the 7:th of November: for the cause of detayninge was after the write was directed to him. The alias, is to retourne the body with the cause, then the Guardian of the Fleete retourned for what cause hee is detayned: howe bee yt, its certified that it is not good: And as the partie is to bee bayled when the retourne is insufficiente, soe when noe cause is retourned, then when as sufficiente cause is retourned.

In the retourne there is a signification of the kinges pleasure, aswell as the firste commaundment/ 9: Ed:3:xl:30. in a Cessavit seriante Pecuell saide for the Commons of Northumber= lande that they had made there complainte to the kinge, Father of the then Kinge that the Country was destroyed by the warre of the Scottes, soe that the people maye not make profite of there landes: hee signifies his pleasure that noe Cessuvit of the people in the same County shoulde bee duringe the warre &c./ And averred that the warre yet enduringe by which &c./ Anno Domini 1627 yet enduringe by which &c./ here wee haue commaundement by write of the kinge that nowe is to holde his plea, and therfore wee shall not sucease./ Out of which hee intendethe two thinges. Firste that the significacion of the kinge ended with his deathe. 2:ly that yf the kinge signifiethe his pleasure one waye, and after signifie his pleasure another waye, that it shalbee as the laste signification is./ Here the kinge by his habeas corpus signifieth his pleasure that hee will haue there bodyes with there cause remo= ved hither ad subijciendum et recipiendum , that is to submitte and receave the lawe./ Every officer of the Courte oughte to make his retourne of his owne cognisance, and not of the certificate of another to him: hee retournes not that the kinge commaundes him to detayne him in prison, but hee retournes that the Courtes certifies to him &c Nowe hee oughte to retourne the ymediate and primary cause. 23: Ed: 3. Retourne del vicount 87. in homine replegiando the vicount retourne that hee had a commaunde to the Baylife of an Abbott, whoe answered him that hee was villaine to the Abbott, by which hee maye not make deliuerance, and for that the answere was not sufficiente a sicut alias was awarded for hee oughte to retourne upon his owne conuzance. for yf the Sherife retourned that the saide Abbott had claymed him to bee his villaine, then it had bynn good. T: 31 Ed:3: rott: 46. banco regis. In the booke there is but a parte of the case, but the role is more. ◠ Excomunication for delivering the Kings wryte./ The Abbot of Buns..ed & Prysell in the Courte Christian, and Prysell broughte a prohibition and the Bishop of Norwiche excommunicated him for bringinge in the prohibition, and Prisell loste by a defaulte, and then is a Quære made for a contempte for excomunicatinge him for deliueringe of the kinges wryte. And the Abbot saide hee oughte not to bee answered and shewed an excomunic= cacion: there two exceptions are taken, and both in one case. Firste because the cause of eco= nication appeared not, for hee was excomunicated for deliuery of that wryte, and that exco= munication maye bee for the same matter, and then wee obiecte not againste him the same excomunication for which hee complaynethe. 2:ly every man that informes the Courte oughte to doe that by ymediate cause that hee knowethe: soe here it is insufficiente for that hee re= retournes the certificate of another another cause, for that, the retourne is not good./

The Stat. of Magna Carta. Nullus liber homo est &c for theise wordes per legem terræ, are to bee expounded Proces of Lawe , by wryte, or attaychmente of the body./ 36:Ed:3: answere to the petition 36: Ed:3: numero. 9: & numero. 20./

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numero:9. & nomber 20 a private Statute, and the same yere numero:20. yt was complayned in parli= amente that diuerse persons were imprisoned per speciale mandatum Domini regis and otherwise, and it was desired that the former Stat. shoulde bee putt in execution, and it was answered bee it done without disturbance./ 37: Ed:3: cap:18. there is an exposition of the greate Charter./ 16: H: 6: means de faits, Fitz:82. an action of trespas was broughte for cuttinge trees the def iustifies the cuttinge per mandatum Domini regis, and adiudged yt was noe plea, with= out shewinge espetialtie of the commaunde: and there it is holden by the Courte, that yf the Kinge commaunde to arreste one, hee maye not averre in an action of false imprisonment Note. althoughe it bee in the kinges presence./ 1: H:7: 4. Hussey saith that markham saide to Ed: 4. that the kinge maye not arreste one upon suspition the partie maye not haue remedy against him, yf hee were falsely imprisoned. Here the kinge makes you Iudges of the cause of his committment by the bringinge of the wryte, and yf the cause bee not sufficiente hee is to bee bayled, but there is noe cause expressed, therfore hee shalbee bayled./

The Stat: West: 1:15. intendethe only de homine replegiando, when it saithe by the common wrtye: that in 4. causes hee shall not bee bayled and deliuered by the common wrtye. Bracton. 153. the wryte de homine replegiando was att the common lawe, and Bracton after the wryte mencionethe the takinge within the Forre which is one of the 4: causes expressed in the Stat: for that hee shall not bee deliuered by common wryte, therfore the Statute alterethe the allegacion in the pointe. 21: Ed: 4:71. Wakefielde was bayled for an horrible murther for by the wrtye hee was broughte hither, hee shall not bee subiected & receaved for the Stat: of West: 1: 15. extende only to this common write, and so is the preamble of the Statute after that the Statute declares what it was and whoe is to be replevisable then it adiudgeth a penaltie: and soe that Statute extendeth to noe others then the comon Keepers and ex= tendethe not to the Iudges, for then it woulde haue added a penaltie upon the Iudges, and the Statute makes mencion of inferiours viz the Sherife keepers &c. & intendes not superiors the Iudges: soe hee prayed that Sir walter Erle mighte bee Bayled./

Anno Domini 1627 Seldon for Sir Eduarde Hambden.

Seinge that hee was in the same case, hee hopethe that they woulde not expecte much from him after such lerned men: but hee will saye somethinge to the Forme, and somethinge to the matter./ For the forme, hee retournes only the cause of the detayninge, but expressethe not any cause: ether the daye of caption or otherwise: soe as you maye not iudge upon the tyme of his imprisionment/ Here is a greate incertenty, it appearethe not when this commaunde was, nor when this certifyinge was, and soe appearethe not when this warrante was./

The retourne is contradictory, deteutus est per speciale mandatum Domini regis, and then commethe in and saithe, that the Councell commaundes him to detayne the prisoner, and that hee was committed per speciale mandatum Dominj Regis. For the matter of the retourne, hee is not iustly imprisoned vnlesse the cause bee expressed viz: for what cause hee was imprisoned. Magna Carta cap:29. that Statute clerely expressethe that noe man, shalbee imprisoned without due proces, for the wordes per legem terræ , is to bee vnderstoode due proces of lawe, and needes not an explan= nation of the Statute made tempore Ed: 3./ yf the Statute had not soe intended, then that had bynn a voyde Statute; for a man maye not imprison the villaine of another man, but hee maye bringe a trespas, for that it is not per legem terræ , yet it is not of the Statute for hee is noe free man./ 42: Ed:3. The kinge answeres the bill, wee will that this lawe take effecte, for it is the lawe of the greate Charter, which proves that the great Charter is intended by the wordes per legem terræ: and hee rites the presidentes before, and prayethe that Sir Iohn Hembden mighte bee bayled./.

Caltrope for Sir Iohn Corbett./

The retourne is insufficiente in manner and matter. For the manner it is retourned that hee is detayned per mandatum sub sigillo Domini regis: that is not a directe affirmance which is per mandatum Domini regis. Plod: 121: 122./ 21: Ed: 4: 43. to saye in all actions of debte upon an obligacion that the def stoode bounde to the plaintife in 20:l the which hee hath not paide to the plaintiff that declaracion is not good, for every declaracion oughte to bee certayne, and a retourne oughte to bee more certayne then pleadinge. Fitz: Nat. Br: 63. A./ ??ister 63. in a wryte of excomunicacion capiend: and there is not any directe affirmacion, that hee is &c 33: Ed: 3. excommengment 29. there it appearethe by the tenante of the Bishop of L: that the Bishop Waterforde had excomunicated him, and it was evill, for hee oughte to certifie of his Conusance. Cob: lib :8: 68./ Nat. Br: 65./

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Another reason, the warrante is that whereas hee was formerly committed, that was per mandatum Domini regis. The tyme of his committment is materiall, for the suiecte oughte not to bee imprisoned to longe, Ass: 38: pt: 22./ Brook Imprisonment 100. The kinge Ses Stat: 18: Eliz: cap: 6. in what case a man may bee kepte in prison after Iudgment./ maye not him iustly detayne in prison, after the fyne bee tendred: For there is a tyme appointed for the imprisoned, that in tyme the partie maye bee broughte to answere./ The lawe is tender to imprison a subiecte to longe: For Register. 273. the partie is to bee deliuered out of prison, not by longe detayninge of his body, or by a detrymente to yt, but by due course of lawe. 3: H: 6: numero 46. one made a petition to the parliament for releife, for that many were committed to prison, and layde there longe, and the kinge answered, bee the lawe and Statutes in this case observed, and kepte./ The lawe is tender in the imprisonment of a man. 8: Ed: 4: 13./ Dyer

Note.

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175. betweene the retourne of the Capias you have not a Terme for that the partie shall then bee restrayned to longe of his libertie. 39: Ed:3: 6:7. howe bee yt the Sherife retournes not his wryte, yet the partie maye appeare Gratis upon a Capias for savinge his imprisonment/ For theise causes the defaulte of the tyme in the retourne doth vitiate the retourne./

Anno Domini 1627 Upon the matter of the retourne. The Commaunde of the kinge beinge verball is not sufficiente to imprison. 16: H: 6. means de faits. 182 v./ 10: H: 7: 17. Frowicke. Howe be it the Iudges maye commaunde by parroll, yet the partie maye not iustifie vnlesse the commaunde bee upon recorde. 39: h: 6: 17. seisure of goodes of one are utlawed by the verball commaundment of the kinge is not good vnlesse the partie which is seised bee Baylife, or other officer to the kinge./ There is another commaunde and that is under the privy Seale or signett./ The Stat: Anno 1: R: 2: cap: 12. of an escape, instructes punishment on the warden of the fleete vnlesse it bee by wryte, or other commaunde of the kinge. dyer. 162. Thurland there deliuers a doubte of the commaunde of the kinge: and there the protexion was not allowed, and the lawe is that the arreste is not a good commaundement by wryte of the kinge. Cok: lib.7:20. Calvyus case, that it appearethe there are 2. sortes of the kinges wrytes viz: Brevia mandatoria, & breia Remedialia Register 70. there the commaundement of the kinge is by wryte. Further the commaunde of the kinge is breve mandatorium, non remediale, as Commission of the kinge. Ass: 42: xl:5: adiudged, that commission is againste the lawe to take a man and his goodes without inditement or suite of the partie, or other due proces. Here the warrante is per speciale mandatum Domini regis &c. is by write. Bracton 113. cap:12. precipimus tibi quod non implacites sine speciali praetepto nostro: then yf a wryte bee directed it is a good commaundement/ and there your firste commaunde is by wryte. Register. 171. B: H. a prisona deliberari non possunt sine mandato nostro speciales, nos &c. These cases prove that they maye bee imprisoned by the speciall commaunde of the kinge, by that commaunde by parroll by wryte, or Commission in all cases the prisoner is bayled. 3. H: 6: numero 46. there was one committed per speciale mandatum Domini regis, and was bayled. And soe hee prayed that Sir Iohn Corbett mighte be bayled./

Attorney le Roy. Sir Ro: Hethe.

Divers have bynn the exceptions which haue bynn taken to, for the Forme of the Retournes. Firste that the retourne is not absolute: I confesse that yf it bee the relation of another, and not his owne wordes the Retourne is insufficiente: but I saye that the retourne is absolute, and the wordes of the Officer, and that which is added is Ex abundantia . And to shewe that hee detaynethe him not of his owne , hee is detayned per mandatum Domini regis and soe hee answered that obiec= tion./

Secondly for that the officer retournes not the cause of his imprisonment hee answered, that the wryte demaundes nothinge more then the cause of his detayninge, and soe hee hath retourned: and yf the write had bynn speciall to haue the cause of his imprisonment then hee agreed that it oughte to bee retourned./ The body of the Councell is representatively the body of the kinge, and here the wante is not the wordes of the Lordes of the Councell, but the declaration of the pleasure of the kinge: another daye a habeas corpus hath bynn directed to diuerse keepers of prisons to bringe the prisoners with there cause, that they maye have the common course of Iustice. Many obiections have bynn made: one to the forme, another to the matter. As to the firste, they have obiected 4: thinges 1:° that it is not positiue, but referred to the signification of another. 2:° that hee retournes not the cause. 3:° that it is imperfecte for that it is not retourned howe longe they have bynn detayned, nor the cause of there impri= sonment 4° that in yt there is a contradiction./

1. Firste I agree that the grounde is truly layde. Ass: 27:xl:55. A sherife retournes that hee hath made a warrante to his Baylife, whoe hath retourned to him, that it is not good vnlesse hee bee a Baylife of a libertie, for then it is a good retourne nullm dedit responsum , for hee is the officer of the Bayliweeke 33: H:6:20./ 2: H:4:4. that such a Baylife shoulde haue a retourne of the wryte, otherwise it is nut good./ And also hee agreed the presidente of 21 Ed:3./ 21: Ed:3. before cited to bee good lawe./ It is saide that an insufficiente retourne is as noe retourne, but then the worste is, it shalbee amended. But our case differs from all the cases: for the firste wordes are positive viz: per speciale mandatum Domini regis, and the wordes nulis significatum is but a surplu= sage and noe parte of the retourne.

2. 3. The secunde dependes upon the firste, and for that hee saide it is causa causeta, et cause causaus and the laste is our case. 3:° The retourne oughte to bee sufficiente to answere the commaunde of the write, and that the officer hath done, for the commaunde of the wryte is to have the partie and the cause of his detayninge. 9:H:6: 44. there it is resolved what Anno Domini 1627 what cause soever, that the warden of the Fleete retournes, that oughte to bee accepted. Therfore the officer hath done safely to shewe howe hee receaves his warrante.

4. Fourthly as to the contradiction. Firste of the warrante that it is to require you &c. and the wordes of the Lordes of the Councell are the wordes of the kinge himselfe, for they represente the body of the kinge. As to the matter of lawe, yf theise gentlemen are replevisable./ There committment is noe ordinary committment but per speciale mandatum Domini Regis, and is a proper and ymediate warrante, upon which hee desired to have them remaunded. There Councell 1. have obiected 5. thinges for which they oughte to bee bayled. 1:° For the inconveniences 2. that maye happen to the subiecte by restraynte of libertie. 2:° diuerse authorities 3:4. of bookes. 3:° diuerse petitions to parliamentes and there answeres. 4:° diuerse Statutes in 5. printe. 5:° diuerse presidentes of imprisonment by the Lords of the Councell, and some by the kinge himselfe. and yet the prisoner hath bynn bayled: I will endeavor to followe there waye and Answere.

1. Firste, libertie is a thinge most pretious, and that I graunte, soe that it bee secundum 2. legem terræ. Dyer. 175./ Ass 30:xl:22./ Bro: imprisonment 100./ means de faits. 128. 1: H:7:7., theise were bookes rited to this purpose, and soe hee saide that is intended in an ordinary cause of Iudicature. For in Dyer there is a Capias for a contempte, and it is fitter for westminster Hall then the Councell table. In the later case hee conceaved that it is not fytte for the kinge to committe in such cases. But here the question is yf the Kinge maye committe by his prærogatiue. 4:Ed:3: 16. was cited and Herle in .1. Ed:3:6 the kinge commaundes to retourne a plea, untill the partie retourne out of Scotlande, there the Iudges saye his retourne is uncertayne and to contynewe that is matter of lawe of which the kinge hath noe experience, and that commaundement is contrary to lawe, therfore they refuse to allowe of yt./ That the kinge maye not compounde, there is a difference betweene the absolute power of the kinge which concernes matters of State, and the petty ordinary causes of ordinary Iustice. The kinge as hee is the heade of the common wealthe, soe hee is the fountayne of Iustice, and Iustice it selfe, and that which hee hath done hee did in iustice: and yet hee is subiecte to the lawe: but hee is not subiecte to giue accompte to subiectes of his actions. yf the kinge make a warrant to committe one and saye pro rectis causis, or pro causis ignotis it is a good warrante by the kinge. And yf a subiecte beinge an officer make such a warrante it is not good: For its matter of State: & when noe matter is expressed that oughte to bee conceived matter of State, and that oughte not to bee examined by the subiecte Magna Carta :29. nullus liber homo &c. that Statute hath had many confirmacions 4 and is positiue, will you haue none imprisoned but hee which is indited? & convicted upon due proces of lawe? Secundum legem terræ makes the difficulte, then yf the kinge committe one that is lex terræ, and is not to bee examined but by your highe Iudge God himselfe. It was obiected that the wordes in the recited book of magna Carta cap: 29. was nec in Carcerem mittemus nisi per legale iudicum parium suorum vel per legem terræ. And in Math: Parrus there the manuscripte of Magna Carta is att large, for hee liued in tyme of H.3. hee answered that it is not in the olde manuscripte and hee shewed an olde manu= scripte: And as for mathewe Parris hee liued in the tyme of Kinge Iohn; and then this Statute was intended but was not perfected untill H:3. But ad= mitte the wordes to bee in the booke hee sees not what difference doth make./ the Statute of 25: Ed:3: cap:4. was saide to examine the Statute of Magna Carta. which was reade, the wordes are that none shalbee condemned without tryall &c. And that was to prevente private proceedinges & extendes not to imprisoninge them without tryall, for that was the practise then, which yet contynewes, that is to saye, to imprison before tryall./ 28: Ed:3: 3. Anno Domini 1627 28: Ed: 3: cap:3. that Statute is to bee intended of a due proceedinge of lawe before finall imprisonment and hath no reference to the matter in question 37: Ed: 3: cap: 18. that Statute is againste petition and suggestion to the kinge and to the Councell not in a legall manner./ 42: Ed: 3: cap: 9. that Statute is of the same manner./ 1: Ri: 2: cap: 12. that Statute is againste the warden of the fleete vnlesse hee lett him goe att large by the speciall commaunde of the kinge or otherwise: that was for his purpose, and the Statute inflictes 2. penalties .1.° to forfeite his office. 2°. to giue remedy to the partie. Dyer 132 Vernons case, there the commaunde of the kinge saves the forfeiture of his office, for upon an habeas corpus hee oughte to have the prisoner 3. here. They cited diuerse petitions in parliament and they answered to them as private re= cordes. 36: Ed: 3. numero .9. et 20: 38. numero. 28. the answere is that it shalbee done but that is not to the pointe in question. The petition is to have righte, and to observe the lawe, and not to imprison upon false suggestion, and the kinge answered that hee will that all the lawes and statutes bee observed, but noe worde of the poynte in question. 3: H: 6. numero 46. hee coulde not finde therfore howe hee mighte safely conclude upon that recorde./

5. The thirde pointe is yf the kinge, or Councell of the kinge may committe, and yf imprisonment without shewinge cause of it, that such a partie bee bayleable? West: 1: cap: 15. of maynprise that is a full exposition of magna Carta, and Courtes of Iustice are excluded out of that Stat of Westm. there was not anymore, but expresseth the lawe in 4. cases Magna Carta was made in the tyme of H: 3. and the statute of west. was made in his sonnes tyme, and yf they had understoode magna Carta otherwise, woulde they not have bynn carefull aswell of the greater as of the lesser? there is not any opinion to the contrary, but that the kinge maye by his speciall commaunde imprison one, and hee shall not bee bayleable./ But hee founde opinion that they were not repleviseable. 32: H:6:52. Newton, those that are committed per mandatum Domini regis are not repleviseable. There is an opinion and it is not denyed. 32:H:6:28. the warden of the fleete retourned that hee was imprisoned for diuerse causes per man= datum Domini regis, and noe exception to the retourne: but the pointe was upon another thinge 21: Ed:3: rotulo:42./ The Sherife of Lecester and Warwicke (for heretofore there was but one Sherife of both Counties) receaved a warrante from the kinge by write not to bayle those that were committed by the Erle of warwicke in his custody, the wordes are that the kinge sente to him to giue him noe grace, that is noe bayle, yet the Sherife lett him goe att large upon bayle, and that beinge debated in parliament the Sherife was condemned upon the Statute of West:1./ The use of this case is, ther was noe recitall of the cause of his imprisonment/ 2:° to explane the Stat: of West:1. for yt was determined in parliament/ upon the wryte de homine replegiando there is an exception of ius captus sit ad speciale mandatum Domini regis, which by the Custome of Englande are not replevisable. Fitz: Mat: Br: in his wryte he de homine replegiendo saithe that there are also causes when a man shall not have libertie, when hee it taken by the commaunde of the kinge, or cheife Iustice. Stamforde: fol:72. then a reverente Iudge in his pleas of the crowne upon the Stat: of West:1. saith that in 4 cases a man is not replevisable, and that is, when hee is committed per mandatum Domini regis which is understoode by the commaunde of his mouthe, or his Councell, those are his beste commentaries upon the saide lawe of West:1. beinge two reverente Iudges. Hee hath seene the Lord Andersons reportes, and amonge them is recited a cause resolved 34: Eliz: by all the Iudges of Englande and they all subscribed under there handes in what causes prisoners were bayleable and in what not, and amonge them one is yf hee bee committed by the commaundement of the Queene, or by the body of the privy Councell, or when two or more of the Councell committes one for Treason: soe here is a Iudgment by all the Iudges of Englande. It was obiected that the subiecte hath a greate interest intereste in that hee agreed Anno Domini 1627 hee agreed to yt. and saide that the kinge hath a greater intereste, for hee shalbee preferred before any subiecte. The question is not howe longe hee shalbee imprisoned: for the Lawe intendes that the kinge maye not doe wronge. Dyer 48. The kinge maye not usurpe, for hee maye not doe wronge. Ymagine a Treason were committed by two, & both goe there waye, and one is taken and imprisoned in the tower, yf hee bringe an habeas corpus yt needes not to shewe the cause of his imprisonment for yf yt shalbee revealed yt maye preiudice the kinge: for by the revealinge of yt the other maye have notice for what cause hee is imprisoned, and by that meanes secure himselfe, and the partie is not to bee broughte to tryall before due preparation./ Diverse children were committed to the Towre, when they had not Conusance of good or evill, yet they coulde not be bayled for they were committed for matter of State. It was obiected by this meanes without cause shewed, the subiecte shall have noe remedy: admitte the kinge converte all his coyne into brasse, that wilbee inconvenyente for the subiecte: yet it cannot bee remedied. But wee maye not presume the kinge will doe yt. And when it is for matters of State wee oughte to bee to wise to searche into matters of princes: The prerogatiue of the kinge is greate, for the lawe puts confidence in the kinge for his Iustice and mercy. The kinge maye pardon all Treasons, and it wilbee inconvenyente, but the kinge will not doe yt. The kinge maye exp= cepte all a County but two from beinge knightes of the Shire for the parliament that wilbee inconvenyente, that two shall beare the charges: so the kinge maye exempte such a County from beinge on Iuries, that wilbee inconvenyente to destroye the cheife tryall which the subiecte hath, and it wilbee a greate pre= iudice to the subiecte, yet that the kinge maye doe: but hee will not for the lawe trustethe him with mercy and Iustice. In our case wee maye not presume that this imprisonment wilbee perpetuall for the lawe impliethe not wronge in the kinge. Presidents keepe the lawe: they have shewed diverse presidentes, but all are mistaken, and are nihil ad rem. 1:H:8. rotulo.9. Harrison was committed for suspition of Felony and there the commaunde of the kinge was saide to bee certifyed by one of Cliffordes Inne, that hee shalbee bayled. 40. Eliz: Wendons case, hee was committed out of the Starre chamber upon legall proceedinge 8: Jacobi. Cæsars case hee was committed and bayled. Vernons case, hee was committed for suspition of Werburies deathe, and was charged by the Councell. 8: H:7. Roger Cheney hee was arraigned and acquited, therfore greate reason hee shoulde bee bayled. But hee cited some presidentes of the Towre. In the 4:th of Ed:3. Iames Fox was taken and imprisoned for diuerse offences made in the Forreste, and hee was bayled by speciall warrante of the kinge. yf this is farr fetchde for there are iudiciall proceedinges paste and iudgment given, as a punishment by lawe. in this case hee never is charged, nor is broughte to answere. et ubi nullum factum nulla fortia.&c./ men are Committed out of the Chauncery, highe Commission, Courte of Ex= chequer, Starre Chamber: upon an habeas corpus maye wee examine the decree and sentences? noe./ 10. Iacob. there was a private con= stitution in London betweene the white and browne breade Bakers A corporation cannot make an ordinance to imprison a man: but only to fyne him. Coke lib :9: fol:64 Clarkes case./ because it is against Magna Carta./ nullus liber homo &c. and Iohn Littlebagge was committed for a breache of the saide con= stitution and upon an habeas corpus here, hee Remaunded to London. And maye an inferior Iurisdiction haue the priviledge and maye not the kinge himselfe? Anno Domini 1627 the kinge himselfe have that Iustice? P: 7: H:7. rotulo 2. Brage was committed per speciale mandatum Domini regis, and Termino Trinitatis nexte ensuynge dominus rex relaxavit mandatum suum ./ And then Villia Battleman. P:7:H:7: rotulo. 13. and others were committed to the marshall of the kinges howse, and one of them had a release of the commaunde of the kinge, and others detayned in prison. Bracton lib: 1: cap: 8./

The remedy is by petition and not by an habeas corpus, and therfore hee prayed that they mighte bee remaunded./

Iudicium

Which was pronounced by the cheife Iustice Hide in the names of all the Iudges. viz: Dodderidge, Whitelocke, and Iones, that the prisoners were to remayne in prison, as this case was, vntill of grace the kinge enlarged them, and that they were not to bee bayled upon an habeas corpus./