they insisted upon, was the inconveniences that might come to the subjects in their liberties, if this return should be good; and this reason they inferred out of records and books of the common law, which gives the liberty of the subjects; I do acknowledge that the Liberty of the Subject is just, and that it is the inheritance of the subject, but yet it is their inheritance secundum legem terræ.

by the command of the lords of the council; for the words of their Warrant are, to require you still to detain him, &c.-But, my lord, if they will be pleased to see the whole Warrant together, they shall find that the lords of the council speak not their own words or command in that warrant, but they say that you are to take notice of it, as the words and command of the king; for, my lord, the lords of the council are the servants to the king, they signify his My lords, they put many Cases likewise to majesty's pleasure to your lordship, and they enforce it, 1 and 2 Eliz. Dyer, fo. 175, that the say it is his majesty's pleasure you should continuance of a Capias shall be from term to know that the first commitment, and this pre- term, without a term betwixt, because othersent detaining him in prison, are by his majes-wise the party defendant may be kept too long ty's special commandment.-And this, my lord, is all that I will say for the sufficiency of the Form of the return, to prove that it is sufficient.

Touching the matter of the return, the main point thereof, it is but a single question, and I hope, my lord, of no great difficulty; and that is, whether they be replevisable, or not replevisable? It appears that the commitment is not in a legal and ordinary way, but that it is 'per speciale mandatum domini regis;' which implies, not only the fact done, but so extraordinarily done, that it is notorious to be his majesty's immediate act and will it should be so; whether in this case they should be bailable or not in this court, which I acknowledge to be the highest court of judicature for such a case as is in question.

The counsel on the other side desire, that they may be bailed, and have concluded that they may not be remanded; their grounds of argument, though they were many that did speak, I have in my Collection divided into five points:

The first was, Reasons that they must be so, arising from the inconveniences that would fall to the subjects, if it should not be so in the main points of their liberty. The second was, they shewed divers authorities out of their law-books, which they endeavoured to apply. The third was, The Petition of the Commons ansivered by several kings in parliament. The fourth was, Acts of Parliament in print. The last was, Precedents of divers times, which they alledged to prove, that men committed by the king's commandment, and by the commandment of the lords of the privy-council, (which I conceive to be all one, for the body of the privy-council represents the king himself) that upon such commitment in such causes men had been bailed.

In the course of my arguments I will follow their method, first, to answer their Reasons, and then those Books which they have cited, which I conceive to be pertinent to this question, and then the Petition and Answer made in parliament, and then their Acts of Parliament, next their Precedents; and lastly, I will give your lordship some reasons of my own, which I trope shall sufficiently satisfy your lordship and all others, but the parties themselves, for I except them.

My lord, the great and mighty Reason that

in prison; and 38 Ass. pl. 22, Broke tit. Imprisonment 100, that imprisonment is but to detain the party till he have made fine to the king, and therefore the king cannot justly detain him in prison after the fine tendered; and 16 H. 6, monstrans de faict 182, if the king command me to arrest a man, and thereupon I do arrest him, he may have an action of false imprisonment, or of trespass against me, though it be done in the king's presence and 1 H. 7. 4, the discourse of Hussey, where he saith, that sir John Markham delivered unto king Edward the 4th, that he should not arrest upon treason or felony any of his subjects, because he could not wrong his subjects by such arrest, for they could not have remedy against him.

These, my lord, are the Causes that they insisted upon for this purpose. To the two first, I shall give but one answer; which is, That the restraint in these two cases, and most of the other cases before cited, appears to be in the ordinary course of judicature fit for Westminster-hall, and not for the king's council-table. A writ of Capias was the first original of it, and therefore not to be applied to the cause of

ours,

And for the other two cases, the law presumeth that the active part of them is not so proper for the majesty of a king, whoever doth these things by his subordinate officers; but that the subject should not be committed by the king, was never heard of, for the king may commit any man at his pleasure; but that is not our case: but whether when the king hath committed one, he must render a cause of that commitment, that it may appear whether the party be bailable or not, or else the party must be delivered.

The book 9 E. 3, fol. 16, pl. 30, cited of a Cessavit, the king having by proclamation commanded, that in the county of Northumberland no Cessavit should be brought, &c. during the war; the tenant pleaded this command, and it was denied him, and he, notwithstanding that, was commanded to plead ; but the reason thereof was, because the commandment thereof was given by E. 2, who being dead, the commandment was determined.

The Book of Edw. 3, 4 fol. 16, is indeed, where the commandment was given by the same king, and that was likewise denied him; for the king cannot command your lordship, or any other court of justice, to proceed otherwise

longer upon the literal exposition of the words of Magna Charta, but I will resort to the rest of it, which is exprest in the subsequent statute and in common practice.

The Counsel on the other side said, that the statute of 28 E. 3, c. 3. expresseth and giveth life to this Charter; I shall desire to have that Stature read.

Keeting, Clerk. Item. Whoreas it is contained in the Great Charter,' &c. (Vide all these Statutes in Littleton's Argument in Parliament postea.)

Attorney General. My lord, the reading of this statute will give answer to it; for it is apparent by the words thereof, none shall be taken by Petition, &c. and that the court be extended to the first arrest, but they are to be understood that none shall be condemned, but he shall be brought to answer, and be tried. And if it be expounded otherwise, it will be contrary to that practice which was then in use.-But it is utterly forbidden by this Statute, that any man should be condemned upon suggestions or petitions made to the king or council, without due trial by law.-The next Statute they cited was 25 E. 3. cap. 4. My lord, I desire that that may be read.

Keeling, Clerk. Item, That no man, of 'what estate or condition soever he be, shall 'be put out of land or tenement, nor taken, nor imprisoned, nor disinherited, nor put to deuh, without being brought to answer by 'due process of law.'

Attorney General. My lord, this Statute is intended to be a final prosecution: for if a man shall be imprisoned without due process, and never be brought to answer, that is unjust, and forbidden by this statute; but when a man is taken in causes that are unknown to us, (who walk below stairs) we are not privy to the circumstances which may cause the trial to be delayed; and peradventure it is not time to bring the matter to trial, because it is not yet come to maturity, and therefore this is not within the meaning of the statute.-Another Statute that they mention is in the same year, and it is page 9. ch. 9. I desire it may be read.

Keeling, Clerk. Item, Because the Peo'ple of the realm, &c.' (Vide Littleton's Argument postea.)

Attorney General. My lord, it is very clear that this Statute had no manner of thought of this cause in question; but whereas sheriff's did procure commissions to be awarded to themselves for their private gain, to the prejudice of the subject, the statute condemneth those commissions, but it maketh nothing to this question which we have now in hand. The next Statute which they cited, was 37 Ed. 3, cap. 18. I beseech,it may be read. Keeling, Clerk. Item, Though it be con'tained in the Great Charter,' &c. (Vide as aforesaid.)

Attorney General. My lord, this Statute seems to be a commentary and light to the ❤ther Statutes, the scope whereof is against pri

vate suggestions made to the king or his council, and not in a legal way, and therefore it condemns them; and this is more fully expressed in the Statute of 38 Edw. 3, cap. 9. which they likewise mentioned: By which statute direction is given what security, those persons which make such suggestions are to give, that they should prosecute their suggestions, and what punishment they shall undergo, if their suggestions be found false.

Keeling, Clerk. Item, As to the article 'made at the last parliament,' &c. (Vide as before said.)

Attorney General. My lord, this and the last Statute seem to conduce both to one purpose, that they that in their accusations went not in a legal way to bring the party to his answer, it was directed by this statute, that they should go a legal way. The last act of parliament in print, the counsel on the other side produced, was the Statute of 1 R. 2, cap. 12. which I desire may be read.

Keeling, Clerk. Item, Whereas divers 'people at the suit of parties were committed the Fleet,' &c. (Vide as before.)

Allorney General. My lord, it appeareth that the scope of this Statute is against the Wardens of the Fleet, for some miscarriages in them; but there is one thing, in this Statute which I shall desire your lordship to observe; and that is, for those misdemeanors he shall forfeit his office, except it be by writ from the king, or his commandment; so that it was no new doctrine in those times, that the king might then give such commandment for committing. The scope of this Statute had two hands; 1. That the warden should forfeit his office; and, 2. That he should recompense the party.

In the 4th and 5th of Phil. et Mar. Dyer 162. it was resolved, That if the Warden shall deliver a man out of prison without command, he forfeiteth his office, and damage unto the party; but if he have the command of the king, that shall excuse the forfeiture of his office: but he must bring the party hither, and here these gentlemen are now, for that commandment of the king is no exception for him not to observe.-If he receives a writ from this court, to shew the court from whence he receives his warrant, it may excuse the forfeiture of his office, but notwithstanding he is subject to the action of the party,

But I desire your lordship to observe that part of the Statute, which the other party would not make use of, which is, that the king may command by writ or otherwise; these were all the printed statutes cited by the counsel on the other side. But because I would not misinterpret these statutes, I thought it equal to desire your lordship that they might be read. sides the printed Statutes, they mentioned Pe-、 titions by the commons, and the Answers to them of several kings in parliament. The first is, Rot. pl. 6 Ed. 3, numero 1 et 20: besides these two, there is one other of 28 Ed. 3, n. 18.

Be

My lord, of these three Petitions and their

Answers, the two first were mentioned by the counsel on the other side; and that in 28 Ed. S, 28, I have produced, all of them even to one purpose. The commons then petitioned the king, that all the Statutes made in exposition of Magna Charta, and of the Forest, may be kept and observed: the king makes Answer, that it shall be done. And in one of the Auswers it is said, If any man be grieved he may complain. But what is all this to the point in question? Could there be any other Answer to give life to these requests? The king he is petitioned that some are injured; he answers, That if they complain, they shall be relieved.

And now, my lord, we are where we were, to find out the true meaning of Magna Charta, for there is the foundation of our case; all this that hath been said concerneth other things, and is nothing to the thing in question. There is not a word either of the commitment of the king, or commandment of the council, in all the Statutes and Records.

Charta was expounded at the time, as I have shewed before; if not, without all doubt at the time of making of Westm. primo.

The parliament would not have been so careful to provide for things of lesser moment and omit this of so great consequence, if there had been any question of it. In all times and ages, Magna Charta hath been confirmed, but they shew not any one law that doth except against this positive law of Westminster the first, or any acts of parliament; nay more, in any printed Books, that in this case men should be replevisable.

My lord, if you know nothing printed or unprinted, if any will desire to alter a course that always hath been held, you will seek for Precedents, for the constant use and course is the best exposition of the law; it is not enough for me to say, This it is, unless I make it good.

First then, I say, they on the other side cannot cite one Book, Statute, or other thing, to prove, that they that have been committed per speciale mandatum domini regis,' are bailable. But, my lord, I find some to the contrary, that they are not bailable, and I will cite some of them, and read of others; for I would not in a case of that expectation, that it should be thought that any thing should be misinterpreted.

And now, my lord, I am at an end of those Statutes, and come to that that was alledged and mentioned to be in 3 H. 6, 46. and if I could have found it, I would have brought it, but I could not find it; therefore if they have it, I desire that they will shew it, but I think they have it not, and therefore I will let that go. My lord, I come to that which I insisted In the 33 Hen. 6, f. 23, Robert Poyning's upon, the question as it was at first, not whe- Case, he was committed pro diversis causis ther the king or the lords of the council canipsum dominum regem tangent' this alters commit a man, and shew no cause wherefore not the case, for it was as good as no cause, for they do commit him; but whether the ordinary it was the Warrant domini regis,' and there courts of justice have power to bail him or no; is no question upon this: but, my lord, I know for that I will insist upon the Statute of Westm. this is not the point in question. 1. which I desire your lordship may be read, and then I will apply. (vide Westin, primo.) My lord, this Statute, if I misunderstand it not, is a full expression to the purpose of Magna Charta; the scope whereof is to direct us in what cases men imprisoned were to be bailed. It was especially for direction to the sheriff's and others; but to say courts of justice are excluded from this statute, I conceive it cannot be. It recites, That whereas heretofore it was not resolved in what cases men were replevisable, and in what cases not, but only in these four cases; for the death of a man, or by the commandment of the king, or of his justices, or of the forest.-My lord, I say that this statute expresseth not the law was made by this statute, that in these cases men were not replevisable; but it expresseth that the law was clear in these cases; in these four cases it was clearly resolved before.

I pray you, my lord, observe the time of the making of this Statute; that of Magna Charta was made in the time of Henry 3, and this of Westminster in the time of Edw. 1, so that it was made in the time of the same.-And, my lord, if they had understood the statute of Magna Charta in another sense, would they not have expressed it so in this statute? Was it not fitter for them than for us, they being nearer the first making of Magna Charta than we are? But certainly the Statute of Magna

The next thing I shall shew unto your lordship, is Pasch. 21 Edw. 1, Rot. cla. 2, and this, my lord, was near the time of making of the statute of Westin. 1, and this precedent is to this purpose: The sheriff of Leicestershire and Warwickshire (for then there was but one sheriff to both those shires) did receive commandment by letters from the king, That whereas the earl of Warwick had commanded divers persons to the custody of the said sheriff, the king sent a letter to the said sheriff, commanding, that to those who were committed to his custody by the earl of Warwick, he should shew no grace to them; that is, they should not be bailed.--The sherif, notwithstanding this command, lets some of those prisoners to bail; whereupon he was complained of in parliament, that he had done against the king's commandment, and he was condemned for it.

This was in parliament; I wonder this should be done in parliament, and that it was not said there, that this cominitment, being done by the king's commandment, was not good; no, he was condemned in parliament, for it was one that did break the statute of Westm. prim.

My lord, the use that I make of this Record is this: It recites, that the earl of Warwick committed divers, it might be that he did commit them by direction from the king; but the record mentioneth not so much, but it shews, that the king by letters commanded the sheriff,

that he should shew those persons no grace, and yet he did; he was examined upon this, and by parliament committed.

The next matter I will offer to your lordship's judgment for the true exposition of the law in this case, is the Book we call The Register, an authority respected, it is the foundation of all our writs at the common law; I bring not the book. In this book there is one writ saith thus, Rex, &c. Quod repiar' fac' A. nisi fuerit per • speciale mandatum domini regis.'

Justice Doderidge. In what writ is that,
De homine replegiando?' •

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Attorn. Gen. Yes, in the writ De homine replegiando;' and there is another writ directed to the constable of Dover, in the very same words; by which it appears that they that are imprisoned by the king's command, non sunt replegiabiles.' Mr. Fitzherbert, a grave judge, and is in authority with us, perusing these writs, expressed it in these words plainly: "There are some cases wherein a man cannot have this writ, although he be taken and detained in prison; as if he be taken by the death of a man, or if he be taken by the commandment of the king's justices;" and mentions not Chief Justice: which I believe is to be intended not of the chief of the court of judicature, but of the chief justice of England, for there was such a one in those days. Thus, my lord, you see the opinion of Mr. Fitzherbert in this case.

were committed were not bailable, whether upon the commitment of the queen or any other. -The Judges make answer, That if a man shall be committed by the queen, by her command, or by the privy council, he is not bailable: if your lordship ask me what authority I have for this, I can only say, I have it out of the Book of the lord Anderson, written with his own hand.

My lord, I pray you give me leave to observe the time when this was done; it was in a time, and we may truly call it a good time, in the time of good queen Elizabeth, and yet we see there was then cause of complamt: and therefore I would not have men think that we are now grown so bad (as the opinion is we are), for we see that then in those times there was cause of complaint, and it may be more than is now.-This, my lord, was the resolution of all the Judges and Barons of the Exchequer, and not by some great one.

Now I will apply myself to that, which has been enforced by the counsel on the other side, which was the reason that the subject hath interest in this case.

My lord, I do acknowledge it, but I must say that the sovereign hath great interest in it too. And sure I am, that the first stone of sovereignty was no sooner laid, but this power was given to the sovereign: if you ask me whether it be unlimited; my lord, I say it is not the question now in band: but the common law, which hath long flourished under the government of our king and his progenitors hings of this realm, hath ever had that reverend respect of their sovereign, as that it hath concluded the king can do no wrong: and as it is in the lord Berkley's Case in Plowden's Com. 246, b. it is part of the king's prerogative that he can do no wrong.-In the 4th of Edw. 4, tol. 25, the king cannot be a disseisor; and so it is also in the lord Berkley's Case in 32 Hen. 8, Dyer, fol. 8.

The next thing, that I will shew your lordship, is the opinion of Mr. Stamford, in his Pleas of the Crown, fol. 72, where he sets down the Statute of Westminster primo, and then he adds, That by this it appears, that in four cases at the common law a man is not replevisable; in those that were taken for the death of a man, or by the commandment of the king, or of his justices, or of the forest: and there he saith, That the commandment of the king is to be intended, either the commandment of his mouth The king cannot usurp upon a patron, for the or of his council, which is incorporated to him, common lav. hath that reverend respect to him, and speak with the mouth of the king.-My as that it cannot conceive he will do any inlord, I shall desire no better commentaries upon jury.-But the king commits a subject, and exa law, than these reverend grave Judges, who presseth no cause of the commitment: What have put Books of Law in print, and such then? Shall it be thought that there is no cause Books as none, I believe, will say their judg-why he should be committed? Nay, my lord,

ments are weak.

The next thing I shall offer unto your lordship, is this, That I cannot shew with so great authority as I have done the rest, because I have not the thing itself by me; but I will put it to your lordship's memory, I presume you may well remember it; it is the resolution of all the Judges, which was given in the 34th of queen Elizabeth, it fell out upon an unhappy occasion, which was thus: the Judges they complain that Sheriffs and other officers could not execute the process of the law as they ought, for that the partics on whom such process shall be executed were sent away by some of the queen's Council, that they could not be found: the Judges hereupon petitioned the Lord Chancellor, that he wou'd be a suitor to her majesty that nothing be done hereafter. And thereupon the Judges were desired to show in what cases men that

the course of all times hath been, to say there is no cause expressed, and therefore the matter is not ripe, and thereupon the courts of judicature have ever rested satisfied therewith, they would not search into it.

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My lords, there be Arcana Dei, et Arcana Imperii; and they that search too far into them, and make themselves busier with them than their places do require, they will make themselves, &c. I will say no more; but I shall be able to shew that there shall as much prejudice come to the kingdom, if God direct not the heart of the king, which is in the hand of God, as the rivers of waters; I say, there may as much hazard come to the commonwealth in many other things, with which the king is trusted, as in this particular there can accrue to the subject.

If a treason be committed, as it was not