and besides, either the prisoner was bailable by the law, or not bailable; if bailable by the law, then he was to be bailed without any such 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 ac'cording 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 the Judgment of the court shew us. To the 12th and last of these, which is sir Thomas Monson's Case in the 14 Jac. Rot. 147, the same objection only was said over by him, which was mentioned and clearly answered in the argument; and that one ground which is infallible, That the judgment upon a return is to be made only out of what appears in the body of the return itself,' was again insisted upon in this case, as it was also in most of the rest. And indeed that alone which is most clear law, fully satisfies almost all kind of objections that have been made to any of these precedents; which thus rightly understood, are many ample testimonies of the Judgment of the Court of King's-Bench, touching this great point, in the several ages, and reigns of the several princes under which they fall. 6 After his Objections to the twelve, and the replies and satisfactions given to these objections, he came next to those wherein the assent of the king and privy-council appears to have been upon the enlargement : but he made not to any of these any other kind of objections whatsoever, than such as arc mentioned and clearly answered, as they were now again, in the Argument made at the first Conference. And for so much as concerns letters of assent or direction, the same was here said again by way of reply to him, as is before said touching the letter in Beckwith's Case. After these were dispatched, he came to urge the eight Precedents, which seemed to make for the other side against the Resolution of the house of commons: which eight were used, and copies of them also were given into the lords at the first Conference. Of these eight, the first four were urged by him, as being of one kind; the difference of them only being such, that, save only in the names of prisons and of persons, they are but the self-same. To the force of these four he objected thus: that Richard Everard, for the purpose, in the first of them, which is 5 H. 7, Rot. 18. Roger Cherry in the second of them, which is 8 H. 7. Rot. 12, Christ. Burton, in the third of them, which is 9 H. 7, Rot. 14, and George Ursewick in the fourth of them, which is 19 H. 7, Rot. 13, 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 mandatum domini · regis,' and that upon that Return they were committed to the marshal of the King's-Bench; and that however it had been objected against those precedents, that this kind of commitment was by the course of that court always done before the bailing of the prisoner, yet, that it did not appear that they were bailed. The Reply to this objection was, That by constant course of King's-Bench, whosoever came in upon Habeas Corpus, or otherwise upon any writ in that court, cannot be bailed until he be first committed to the marshal of that court; and that thence it was, that all those four were committed to the marshal, as appears by the entry, Qui committitur Marescallo, &c.' which is the usual entry in such a case, and that the clerks of that court acknowledge this course and entry to be most constant. So that all the inference, that can be made out of these four, is, that four prisoners being brought from four 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 four 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 had not been adjudged in every one of the cases to have been bailable by the court), and that this commitment of them to the marshal of the King'sBench, 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, or could not do the other, it may 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 the constant course it is, shews most plainly that they were bailable by the law, which is the only thing in question. So that although these four precedents were ranked among them, that may seem to make against the Resolution of the house of commons, which was done, both because they have this small colour in them for the other side, to any man that is not acquainted with the nature and reasons of the Entries, and courses of the court of King's-Bench, and also because all or some of them had been used in the late great case in the King's-Bench, as precedents that made against the liberty claimed by the subject; yet, in truth, all four of them do fully prove their Resolution: that is, they plainly shew that the court of King's-Bench in every one of them resolved, that the prisoners so committed were bailable, otherwise they had been remanded, and not committed to the marshal of the King's-Bench. And this was the Answer to the Objection made by Mr. Attorney upon those four precedents, being all of the time of king Henry the seventh. '&c. Hospiti domini regis.' By which it appeareth, as he said, that the court remanded him back to the prison of the Marshalsea of the Houshold: and he said, that whereas it had been objected at the first conference, that there was some mistaking in the entry; he conceived, indeed, that there was a mistaking, but it was that the clerk had entered committitur' for remittitur,' and that it should have been "Qui remittitur Marescallo Hospitii domini re'gis: for whenever they remanded the prisoner, remittitur' and not 'committitur' should be entered. And that mistaking being so rectified and understood, he conceived it was a direct precedent against the Resolution of the house of commons. To this it was answered by the Gentlemen of the house of commons, That there was no doubt, indeed, but that a mistake was in the entry by the clerk, but that the mistaking was quite of another nature. The addition of those words, hospiti dom. regis,' was the mistaking, and the entry should have been, qui committitur Marescallo, &c.' 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 four; but the ignorance of the clerk that entered it, knowing not how to distinguish between the Marshal of the Houshold and the Marshal of the King's Bench, was the cause of the addition of these words, hospitii dom. regis.' And to confirm fully this kind of interpretation of that precedent, and of the mistaking of it, it was observed by the Gentlemen of the House of Commons, that there is in the margin of the Roll an infallible character that justifies so much. For by the course of that court, whensoever a prisoner is committed to the Marshal of the King's Bench and not remanded, the word Marescallo is written in the margin short by Marr' turned up and that 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 'Marr'' in the margin is likewise written: which most clearly shews that the truth of this case was, that this Page was committed to the Marshal of the King's Bench, and not remanded; which if it had been, neither could the entry have been committitur,' nor should the margin of the Roll have had Marr' written in it. And thus they have answered Mr. Attorney's objections touching this precedent, and concluded that now, besides the first four of the eight, they had another, and so five to prove that a prisoner committed per mandatum domini regis,' generally was bailable by the judgment of the court. However, it appears not in these particulars that they were bailed; which perhaps they were not, either because they prayed it not, or because they could not find sufficient bail. The sixth of these Precedents, being the case of Thomas Cresar, in the 8 Jac. Regis Rot. 99. Mr. Attorney objected to it thus: That To this the Gentlemen of the House of Com mons gave this answer: They said, that the usual entry of a remittitur,' when it is to shew that the court by way of judgment, or award upon a resolution, or debate, remands the prisoner, is, remittitur quousque secundum legem deliberatus fuerit:' but when they advise, or give way to the keeper of the prison to amend his return, or the like, then the entry is only remittitur' generally, or remittitur prisonæ prædict.' But it was indeed affirmed by Mr. heeling, a clerk of great experience in that court, that the entry of a remittitur' generally, or remittitur prisonæ prædictæ,' was indifferently used for the same, as remittitur quousque,' &c. Yet it was expressly shewed by the gentlemen of the House of Commons, that there was sometimes a difference, and that so it might well be in this case. For in the last of these eight precedents, which is Saltonstall's Case, they observed that re mittitur prisonæ prædicta' is often used; and that it is twice used only for a remanding, during the time that the court gave leave to the Warden of the Fleet to amend his return; which shews plainly, that though sometimes remit'titur generally, and remittitur quousque,' &c. may mean the same, yet sometimes it doth not. And that, in this case of Cæsar it doth not mean any other, but only so much as it doth twice in that of Saltonstall's case, was proved also by a Rule of the court, which was cited out of the Rule-book of the court of King's Bench, by which rule the court expressly ordered, that unless the steward and marshal of the Houshold did sufficiently return the writ of Habeas Corpus for Caesar, that he should he discharged. The words of the rule are, ‘Nisi prædicti Senescallus et Marescallus hospitii 'domini regis sufficientur returnaverint breve de Habeas Corpus, Tho. Cæsar die Mercurii proximæ post quindenam Sancti Martini de prisona exonerabitur.' And this was the opinion of the court: which shews that the court was so far from remanding him upon the return, that they resolved, that unless some better return were made, the prisoner should be discharged of his first imprisonment, though it appeared to them out of the body of the return (upon which they were only to judge), that he was committed per mandatum domini regis' only. And the rule not only shews the opinion of the court then to have been agreeable with the Resolution of the house of commons, but also proves that Remittitur:' generally, or Remittitur prisonæ prædictæ,' doth not always imply a remanding upon judgment or debate. And this answer was given to this of Cæsar's Case, that is the sixth of this number. The seventh is the Case of James Demetrius. itself, then doubtless they would have remanded It was 12 Jac. Rot. 153. Mr. Attorney object-him upon that alone; for then they needed not ed that this Demetrius and divers others being at all to have stood upon the other part of the brewers, were committed 'per concilium domini return in this case. So that out of the Record regis' to the Marshalsea of the Houshold, and itself it appears fully, that the court conceived that upon the commitment so generally return- the return to be insufficient. ed, they were remanded, and that the entry was immediatè remittitur præfacto marescallo 'prædicti hospitii;' where he observed, that 'immediatè' shews that the Judges of that time were so resolved of this question, that they remanded them presently, as men that well knew what the law was herein. So the Gentlemen of the House of Commons concluded, that they had a great number of Precedents besides divers acts of parliament, and Reasons of Common Law, agreeable to their Resolution; and that there was not one. precedent at all that made against them, but indeed, that almost all that were brought, as well against them as for them, if rightly understood, made fully for the maintenance of their Resolution: and that there was not one exam upon the point before that of Cæsar's case, which is before cleared with the rest, and is but of late time, and of no moment against the Resolution of the House of Commons. And thus, for so much as concerned the Precedents of Record, the first day of the Conference desired by the lords ended. The next day, they desired another Conference with the House of Commons, at which it pleased the Committee of both houses to hear Mr. Attorney again make what Objections he could against other parts of the Argument formerly delivered from the House of Commons. He then objected against the Acts of Parliament, and against the Reasons of Law, and his objections to those parts were answered, as it appears by the Answers by order given into the House of Commons by the gentlemen that made them. (Vide postea.) He objected also upon the second day against the second kind of Precedents, which are Resolutions of Judges in former times, and not of record, and brought also some other testimonies of the opinions of Judges in former times, touching this point. Hereunto the Gentlemen of the House of Commons gave these Answers. 1. That the Remittitur in this case is but as the other in Cæsar's, and so proves nothing against them.ple or precedent of a Remittitur in any kind 2. That immediatè' being added to it, shews plainly that it was done without debate, or any argument or consideration had of it, which makes the authority of the precedents to be of no force in point of law; for judgments and awards, given upon deliberation only and debate are proofs and arguments of weight, and not any sudden act of the court without -debate or deliberation. And the entry of immediatè' being proposed by Mr. Keeling, it was confirmed by him, that by that entry it appears by this course, that the remanding of him was the self-same day he was brought, which, as it was said by the Gentlemen of the House of Commons, might be at the rising of the court, or upon advisement, and the like. And this answer was given to this precedent of the brewers. The last of the eight, to which Mr. Attorney objected, is Saltonstall's Case, in the 13 Jac. regis. He was committed per mandatum dominorum regis de privato concilio:' and being returned by the Warden of the Fleet to be so, Remittitur prisonæ prædicta;' and in the 13 Jac. in the same case there is remittitur generally in the roll. And these two nake but one case, and are as one precedent. To this the Gentlemen of the House of Commons answered, That it is true, the Rolls have such entries of remittitur' in them generally, but that proves nothing, upon the reason before used by them in Cæsar's case. But also Saltonstall was committed for another cause besides 'per mandatum dom. regis,' a contempt against an order in the chancery, and that was in the return also. And besides the court, as it appears in the record, gave several days to the Warden of the Fleet to amend his return, which they would not have done, if they bad conceived it sufficient, for that which is sufficient needs not amendment. First, for that Resolution of all the Judges of England in 34 Eliz. mentioned and read in the Arguments at the first Conference, he said, That it was directly against the Resolution of the House of Cominons, and observed the words of it in one place to be, that persons so committed by the king, or by the council, may not be delivered by any of the courts, &c. And in another, that if the cause were expressed, either in general or in specialty, it was sufficient; and he said that the expressing of a cause in generality was to shew the king or the council's command: and to this purpose, he read the whole words of that Resolution of the Judges. Then he objected also, that in the Report of one Roswell's Case in the King's-bench, in 13 Jac. he found that the opinion of the Judges of that court (sir Edward Coke being then Chief Judge and one of them) was, that a prisoner being committed per mandatum dom. regis,' or privati concilii,' without cause shewed, and so returned, could not be bailed because it might be matter of state, or Arcana imperii,' for which he stood committed. And to this also he added, an opinion he found in a Journal | To that purpose, besides the words of the whole in the House of Commons of 13 Jac. wherein frame of this Resolution of the Judges, as it is sir Edward Coke speaking to a Bill preferred in the copy transcribed out of the L. C. Jusfor the explanation of Magna Charta touching tice Anderson's Book, written in his own hand, imprisonment, said in the same house, That which book was here offered to be shewed in one so committed could not be inlarged by the the behalf of the house of commons; it was oblaw, because it might be matter of state for served, that the words of the first part of it which he was committed. And amongst these shew plainly, that all the Judges of England objections of the other nature also, he spake of then resolved, that the prisoners spoken of in the confidence that was shewed in behalf of the the first part of their Resolution were only House of Commons: and he said, it was not prisoners committed with cause shewed; for confidence on either part could add any thing they only say they might not be delivered by to the determination of the question: but if it any court without due trial by law, and judgcould, that he had as much reason of confidence ment of acquittal had; which shews plainly for the other side against the Resolution of the they meant that by trial and acquittal they House of Commons, grounding himself upon might be delivered. But it is clear that no trial the force of his objections, which, as he con- or acquittal can be had, where there is not ceived, had so weakened the arguments of the some cause laid to their charge, for which they House of Commons. ought to stand committed. Therefore in that part of the Resolution such prisoners are only meant as are committed with cause shewed, which also the Judges in that Resolution expressly thought necessary, as appears in the second part of their Resolution, wherein they have these words: If upon the return of their Habeas Corpus, the cause of their commitment be certified to the Jud es, as it ought to be, &c.' By which words they shew plainly, that every return of a commitment is insuthcent that hath not a cause shewed of it. And to that which Mr. Attorney said, as if the cause were sufficiently expressed in generality, if the king's command or the council's were expressed in it, as if that were meant in the resolution for a sufficient general cause; it was answered, That it was never heard of in law, that the power or person that committed the prisoner was understood for the causa captionis' or 'causa detentionis,' but only the reason why that power or person committed the prisoner. As also in common speech, if any man ask why or for what cause a man stands committed, the answer is not, that such a one committed him, but his offence or some other cause is understood in the question, and is to be shewed in the answer. But to say that such a one committed the prisoner, is an answer only to the question, who committed him? and not why, or for what cause he stands so committed? To this a reply was made; and first it was said to the lords on the behalf of the House of Commons, That notwithstanding any thing yet objected, they were upon clear reason still confident of the truth of their first Resolution, grounded upon so just examination, and deliberation taken by them. And it was observed to the lords also, that their confidence herein was of another nature, and of greater weight, than any confidence that could be expressed by Mr. Attorney, or whomsoever else being of his majesty's counsel learned. To which purpose the lords were desired to take into their memories the difference between the present qualities of the Gentlemen that spake in behalf of the House of Commons, and of the King's learned Counsel in their speaking there, howsoever accidentally they were both men of the same profession: for the King's Counsel spake as counsel perpetually retained by fee, and if they made glosses or what advantageous interpretation soever for their own part, they did but what belonged to their place and quality, as Mr. Attorney had done. But the Gentlemen that spake in behalf of the House of Commons, came there, bound on the ope side by the trust reposed in them by their country that sent them, and on the other side by an oath taken by every of them before he sit in the house, to maintain and defend the Rights and Prerogatives of the Crown: so that even in the point of confidence alone, those of them that speak as retained counsel by perpetual fee, and those that by their place being admitted to speak, are bound to utter nothing but truth, both by such a trust and such an oath, were no way to be so compared or counterpoised, as if the one were of no more weight than the other. And then the Objections before mentioned were also answered. For that of the Resolution of all the Judges of England in 34 Eliz. it was shewed, that plainly it agreed with the Resolution of the House of Commons: for although indeed it might have been expressed with more perspicuity, yet the words of it, as they are, sufficiently shew the meaning of it to be no otherwise. VOL. III. Then for that of the copy of the Report, in 13 Jac. shewed forth by Mr. Attorney, it was answered by the Gentlemen of the House of Commons, That the report itself which had been before seen, and perused among many other things at a committee made by the house, was of slight or no authority, for that it was taken by one, who was at that time a young student, and as a reporter in the King's Bench, and there was not any other report to be found that agreed with it. Secondly, Although the reports of young students, when they take the words of Judges as they fall from their mouths at the Bench, and in the same person and form as they have spoken, may be of good credit; yet in this case there was not one word so re ported; but in truth there being three cases at a time in the King's-Bench, one Roswell's case, L 7 Allen's, and Saltonstall's case, every of which had something of like nature in it, the student having been present in the court, made up the 1 frame of one report or case out of all three in his own words, and so put it into his Book: so that there is not a word in the report, but it is framed according to the student's fancy, as it is written; and nothing is expressed in it, as it came from the mouth of the Judges, otherwise than his fancy directed him. they were as their records. But for any parti cular man's opinion, noted in any of them, it was so far from being of any authority with them, that in truth no particular opinion is at all to be entered in them, and that their clerk offends, whenever he doth to the contrary. And, to conclude, no such opinion whatsoever can be sufficient to weaken the clear law.comprehended in these resolutions of the house of commons, grounded upon so many acts of parThirdly, There are in the report plain fals- liament, so much reason of the common-law, hoods of matter of fact, which are to be attri- and so many precedents of record, and the rebuted either to the Judges or to the reporter. solution of all the judges of England; and It is most likely by all reason, that they pro- against which not one law, written or unwritten, ceeded from the Reporter's fault; howsoever, not one precedent, not one reason hath been these matters of falshood shew sufficiently that brought, that makes any thing to the contrary. the credit of the rest is of light value. It is And thus ended the next day of the Confersaid in the report, that Harecourt being comence desired by the lords, and had by a Committed by the council, was bailed, in 40 Eliz.mittee of both houses. upon a privy-seal or a letter, whereas in truth there is no such thing. And it is said there, that kind of letters are filed in the crown-office, whereas in truth there was not any such kind of letters filed there in any case whatsoever. That Resolution of the Judges in 34 Eliz. is mis-cited there, and made in 36 Eliz. And it is said there, that by that Resolution, a prisoner returned to be committed by the command of the king, might not at all be delivered by the court; whereas no such thing is comprehended in that Resolution. Serjeant ASHLEY'S ARGUMENT, seconding Mr. I hope it will be neither offensive nor tedious to your lordships, if I said somewhat to second Mr. Attorney: which I the rather desire, because yesterday it was taken by the Gentlemen, and 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 on that they enforced this general conclusion; That therefore no man could be committed, or imprisoned, but by due process, present But that which is of most moment is, that howsoever the truth of the report were, yet the opinion of the Judges being sudden, and without any debate had of the case, is of lightment or indictment.' Which we say is a moment: for, in difficult points especially, the Non sequitur upon such our acknowledgment; most grave and learned men living may on the for then it would follow by necessary consesudden let fall (and that without any disparage- quence, that no imprisonment could be justi ment to them) such opinions as they may well, ficed but by process of law, which we utterly and ought to change upon further inquiry, exa- deny. For in the cause of the Constable cited mination, and full debate had before them, and by Mr. Attorney, it is most clear, that by the mature deliberation taken by them. Now ancient law of the land a constable might ex plainly in that of 13 Jac. there is not so much officio, without any warrant, arrest, and restrain as a pretence of any debate at the bar or a man to prevent an affray, or to suppress it. bench. All that is reported to have been, is And so is the authority 38 Hen. 8, Brook's Abreported as spoken of the sudden. And can stract. So may he, after the affray, apprehend any man take such a sudden opinion to be of and commit to prison the person that hath value against solemn debates and mature deli-wounded a man that is in peril of death, and berations since had of the point? And indeed that without warrant or process; as it is in 38 this great point, and all circumstances belong- E. S, fol. 6. ing to it, have within this half year, been so fully examined and searched into, that it may well be affirmed, that the most learned man whatsoever that hath now considered of it, hath within that time, or might have, learned more reason of satisfaction in it, than ever before he met with. Therefore the sudden opinion of the Judges to the contrary is of no value here, In like manner the Judges in these several which also is to be said of that opinion obvi- Courts may commit a man, either for contempt ously delivered in the commons house in 18 or misdemeanor, without either process or warJac. as Mr. Attorney objected out of the Jour-rant, other than Take him Sheriff,' or 'Take nal of the house. But besides, neither was the truth of that report of that opinion in the Journal any way acknowledged; for it was said in behalf of the house of commons, that their Journals were for matters of Orders and Resolutions of the house of such authority, as that Also any man that is no Officer may appre hend a felon without writ, or warrant, or pursue him as a wolf, and as a common enemy to the Commonwealth, as the Book is 14 Hen. 8, fol. 16. So might any one arrest a nightwalker, because it is for the common profit, as the reason is given 4 Hen. 7, fol. 7. him Marshal, or Warden of the Fleet.' And the adversaries will not deny, but if the king will alledge cause, he may commit a man per mandatum' as the Judges do, without process or warrant.--And various are the cases that may be instanced, wherein there may be a |