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ACONFERENCEDESIRED BY THELORDS AND HAD

by a Committee of bothHoufes,

CONCERNING

THE kIGHTS AND TPkRVILE-GESof the Subjec-s.DI/courfed by

SirDUDLEY DIGGES.Sir EDWARD LI T'TL F o0N Knight,

now Lord Keeper.Mafier SE L D E N.Sir EDWARD Co OKE.

With the Objeffons by Sir Robert Heath Knightthen Attorney Generall, and the -fnfwers.

30,/br. 4 .Car. 1628.

LONDON,Printed by ANfor Matheira Walbanckeand kiebard

Befl, and are to be fold at their fhops at,Graies-Inne Gate. 1642.

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Rights and Privileges of the Subjects [i] 1642

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Rights and Privileges of the Subjects [ii] 1642

THE IT ODTICTION.Sir Dudl ey

My LoRD, DS,Shall I hope aufpicioufly begin thisConference this day, with an obferva-tion out ofthe holy Story, in the dayesof good King Iofiah,when the Lind was z.Chro. Chapurged of ldolatrie, and the great nMen 3 4.went about ro repaire the houfe of God,while money was fought for,therc wasfound a Booke of the Law which had z Kings Cir.boone negle&td, and afterwards being zz.

prefented to the good King, procured the bleffing whichyour Lord (hips may reade in the Scriptures.

My good Lords, I am confident your Lordfbips will ascheeretully joyne with the Commons, in acknowledgementof Gods great bleffing in our good King loflah, as the Knights,Citizens, and Burgeffes, of the Houf of Commons, by meetheir unworthiefa fervant, doc thankfully remember your moftrcligioufly and truly honouable invitation of them to thelate Petition, for cleanfing this Land from Popifh abominati-onwhich I may truly call a neccffary and a happy repairingof the boufe of God, and to -oe on with the parallel, whbiltwe the Commons out of our good .ffiLAions were fed king foimoney, we found I ca not fay a book, of the Law, but manyand funda'nentall points thereof ncgle&ed arrd brokcr, whichhath occafioned our dcfire of this conference, wherein I amfidt commanded to fhew unto ycur Lordfhips in gonerl ],tbattheLawes of EngtmH arc grounded cn reafon more ancient

A z then


Rights and Privileges of the Subjects 1 1642

(z)then booke;,confiting much in unwritten CuRomes,yet fo fullof Juflice and true equitie, that your mofi Honoutrable Pre-deccifors, and Anccftours propugned them with a nolxmismuitar,and fo ancient,that from the Saxon dayes, notwithfian-ding he Injuries and ruines of time, they have continued inInoo parts the fame, as may appcare in old remaining Monu-ments of the Lawes oF Ethelbert, the firfa Chriflian King ofKent, ?na the King of the Weft Saxons, Offer of the Mertians,and of Alfred the great Monarch who united the Saxon Hep.tarchie, whofe lawes are yet to bce feene publifhed, as fomcthinke by Parliament, as he fayes to that end, Vt qui fub unoege, rub ana lege regefentur. And though the Booke of Litch-

fic'/ fpeaking uf the times of the 'Danes, fayes that then Iusfopitum erat in regno, leges d- confuetudines fopitr lunt, and pra-Va volantas,vh; & violentia m-gis regnabant quam jdicia veljufitia; yet by the blefling of God a good King, Edward,commonly called St.Edwvard, didawaken thofe lawes, and asthe old words are,Excitatas reparavitreparatm decoravitdeco.ratau confirmavit ; Which confirmavit, fbewes that good KingEdward did not give thofe Liwes which WS/i4m the Conque=rour and all his Succelfours fince that timo have fworneUnto.

And here my Lords, by many Cafes frequent in our too.derne Lawes flrongly concurring with thofi of the ancientSaxon Kings, I might,if time were not morz pretious, dc-monatrate that our Lawes and Cuflomes were the fame.

I will only intreat your Lordfhips leave to tell you, that agwe have now,even in thofe Saxon times they had their CourtBarons, and Court Leets, and Sheriffs Courts, by which, asTacitmu fayes of the Germanes, their Ancefiours 7ara redde-bant per pagos & vkos ; and I do: beleeve, as wee have now,they had their Parliaments,where new lawes were made carconfenfu Pre iatoram magnatum & totim communitatf ; or as a-nother writes,cam confilio pradatorum,nobihim, & fapientiamjagcorum.I will adde nothing out off(lanvile that wrote in thetime of H.2. or -Braaon that writ in the dayes of H. 3. onlygive me leave to cyte that of Fortefcue, the learned Chance].]our to P.6. who writing of this Kiogdome, fayes, Regnuun

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(3)iflzd morbus natiormim, & Regitm termporlbaf, eifdem qulbrsnunc Regitar legibs c.; confueitadinib4 regebatmr. But mygood Lords, as the Poct faid of FameI tray fly of our com-mon Law ;

Ingreditmr . fold caput inter nubila condit.

Wherefore the cloudy part being mine, I will make haft toopen way for your Lordfhips to heare more certaine Argu-mzrts,and fuch as goe on more fure grounds.

Be p1cafed then toknow, that it is an undoubted and fun-damentall point of this fo antient common law of England,that the Subje J bath a tru- property in his goods and poffffi.-ons, which doth preferve as facred that Meum & turm, that igthe nurfe of Indutry, and mother of Courage, and withoutwhich there can be no Jufticeof which Afeum & tuua is theproper objeff. But the undoubted birth-right of Free uje6ts, hath lately not a little beene invaded and preja.diced by preffures,the. more grievous, .b-caufe they havebeene purfued by imprifonment contrary to the Franchif-s o'-this Land, and when according to the Lawcs and Statmes ofthis Realme, redreflc bath beene fought for in a legal] way bydemanding Habews Corpxs from the Judges, and a difcharccor triall according to the law of th: Ltnd, fucccfl hath tailei,that now inforceth the Comrons in this przf:nt Parliamentaflembled, to examine by Adts of Parliancnt, prefidents andreafbns,the truth ofthe Englifh Subjc&s hbcrtie, which Ifhaall leave to learned Gentlemen, whof learned Argumv-,sI hope will leave no place in your Lord fh ps memories, forthe errours and infirmitks of your hmbleft fervanr, that doththankfully acknowledge the great favour of your Honeur+-hie and patient Attention.

A 3, The



1.88Mr-Lkle. The Argument made by thet0f. Command of the houFe of Commons out of

A61s of Parliament, and authorities of Law, ex-pounding the famc,at the firft Confercnee with tho

Lords concerning the libtrrie of the perfoaof every Free-man.

My LoLD S,-Pon the occafions delivered by the Gentle;

man, your Lordfhips have heard the Com-mops have taken into their ferious confide-ration the matter of perfonall libertic, and

, after long debate thereof on divers dayes,-' as well by folemne Argumcnts', as fingle

-- propofitions of doubts and anfw crs, totheend no fcruple might remaine in any mans breft unfatif.fied, they have upon a full Search, and cleare .underftanding ofall things pertinent to the queflion, unanimoufly dclated;That no Free-man ought to bee committed or reflrained iaprifon by the command of the King or Privic Counfell, or anyother, unlefll fome caufe of the commitment, detainer, orrefIraint bee expreffed, for which by law hee ought to bedcommitted, detained, or retrained. And they have fent meewith other of their, members, to reprefent unto ycur Lord.[hips the true grounds of their refolution, and have chargedme particularly, leaving the reafons of law, andprefidents,forothers,to give your Lordfhips fatisfa&ion, that this liberrie iseflablifhed and confirmed by the whole State, the King, the.Lords fpirituall and temporal], and Commons, by feverallA&s of Parliament, the authoritie whcreof is fo great, thbt itcan receive no anfwer favg by interprctation or repeale by fa-ture Statutes. And thofe that I fhall mind your L~rdfhips of

aro



(5)Iare fo direa in point, that they can beare no other expofitionat all, and furc I am they are ftill in force ; The firft of them isthe grand Charter of the Liberties of England, firfi grantedin the feventeenth yeare of King ?oIn, and renewed in theninth yeare of Henry the third, and fince confirmed in Parlia.ment above ;o.times, the words there are Chap. 29. NulluSliber homo capiatur, vel imprifonetur,aut dijfeifletor de libero tentofuo vel lberis confuetudinibm fun, aut utlageretur, Aut exa.letur, aut allquo modo deflruator, nec fuper eum ibimus, nectaper eum mittemui, nifi per legale judicitim parium forum vdper legem terrx.

The{c words xullus liker hbmo,&c.are epreff- enough, yetit is remarkable, that Matiew Pwrir, an Authour of fpeciallcreditrdoth obfervc,1foU.43 2.thatthe Charter of 9.H.3. wasthe very fane a that of 1 7. King 7okn, in tullo difJimiliw arehis wor&dsand that of King Iohn h-, ftteth downe verbatim,Fo.342. and there the words are dire&ly, Nec etm in Carce.rem mittemas, and fuch a corruption as is now in the printmight eafily happen 'twixt 9.H. 3.and 28.of d. .when thisCharter was firfl exemplified, but certainly there is Cufflcicintkft in that which is extant to decide this queflion, for thewords are, that no Free-man fliall be taken or imprifoned,butby the lawfull judgement of his Peeres, which is by a luricof Peeres, ordinary Iurors for others, who are their Peeres, orby the law of'the Land ; Which wor&,Law of the Landnuofneceffity be undcrfood in this netionto be by due Proces ofthe Law, and not the law of the Land generally, or other.wife it would comprehend Bond-men ( whom wee call Vil.laines) who are excluded by the word [iber ; For tb gene-rail law of the Land doth allow their I ords to imprifollthem at their pleafure without cauf-, wherein they only diff-rfrom the Free-men in relic Of their pcrfons, who cannot beirm?rlfond without a caufz.,And that this is the true under-ftanding of thefe words per legem terra, will more plainlyappeareby divers other Statutes that I fhall ufc, which doeexpound the Law according. And though the words of thisgrand Charter be fpoken in the third perlon, yet they are notto be undcritood of fuites betwixt party and party, at leaft

not



(6)Sir Edward not ofthem alone,but even of theKings fuites againft his Sub-Littletons jeqs, as will appeare by the occaion of getting of that Char.Argumcnr. ter,which was by reafon ofthe diffireices betwvixtthofe Kings

and their people, and therefore propcrly to bee applied untotheir power over them, and not to ordinary queflions betwixtS ubji6l and Subje&t. Secondly, the words per lgate judiciump.,rum fiforfym, immediatly preceding the other of per legemtcrri, are in ant of trials at the Rings firt, and not at the pro-fLcurion of a Subjc&. And therefore if a Pecre of the Realmehc arraigned, .t the Suit of theKing, upon an Indi&iment ofmurtd e, he fhall be tried by his Peeres; Lut if he be appealedof murthei by a S;ubj;&, his triall Ihall be by an ordinary Ju.r ry of 1 2 Freeholderi, as appeareth in I 0.8d. .6.33.18.

r,rtrc per gro4!e title trials 147. Stan. Co. h.3. a. I. fol. 152. andfares areter- in Io.Ed.4.6. it is faidfuch is the m:aning tf "Aana Char.mfnt fif"it a,'- ta, for the fame rcafon ; Therefore as per judicium imp fa,.peale,Br. tit, 01- orum, extends to the Kings Suit, fo fhall thefe words p i l.i0 n 113. nota gem tera ; And in 8.6d. 2. rot. parliamet. membrana 7. therebien, is a Petition ti'at a Writ under the priyie Scale went to the

Gwrdians of the great Scale, to caufe lands to bee feized intothe Kings hands, by force of which there went a Writ out ofthe Chancery to the Efchetor, to feize, againft the formeofthegrand Charter, that the King nor his ninifters fhall out noman of his Freehold without reafonable judgement, and theparty was reflored to his land,which fheweth the Statute didextend to the King. There- was no invafion upon this perfo-nail libcrtie, till the time of King 8d.3 . which was cfifoone

StM. .d.3. 9. refinted by the Subject, for in 5. Ed .ca,9, it is ordained inthefe words; It is enaded that no mati from henceforth fhal beatracled by nny occafion,nor fore-judged of lifc or limbe, norhis lands, tenemens, goods nor chattels feized into the Kings

Sta. _ ,. , hands, aga inflthe form: oF the great Charter, and the law of4. theLand. 25.8d. 3Cap4 . It is more full, and doth expound

the words of the grand Charter, and is thus; Whereas it iscontoined in the grand Charrer of the franchifes of England,that none fhall be imprifond, nor put out of his freehold, norfree cuzlowe, unleffe i be by the law of' the Land, It is awar-dcd," ffrnted, and efaJlifhid, that from hnce none /hall bee

taken



(7)taken by Petition or Suggeltion, made to our Lord the Kirg, Sir gdvardor to his Ccunfell, unleffe it be by Inditement, or prefentment Lttletonsof his good and lawfull people of the fame neighbourhood, Argument.'which fuch Deeds fhall be done in due m2nner, or by Procesmade by Writ originall at the Common law, nor that nonebe Out of his Franchifes, nor of his Freehold, unleff- lie be du-ly brought in anfwer, and fore-judged of the fame by thecourfc of the law, and if any thing be done againa the fame, itfhall beredrcffed and holden for none.

Out of this Statute I obfervc, that what in Magna Charta,and the picamblc of the Statute is tearmed by the law of the Lex terre ex-Land, is in the body of this Ad expounded to bee by Proces pound ep pro-made by Writ original] at the Common law,which is a plain c e .f, - . - . re ori ginal'interpretation of the words ( Liw of the Land ) in the grand al crm, Icy.Charter. And I note that the Law was made upon the com-mitment of divers to the Tower, no man yet knowethfir what.

2 8,1d 3"caP. 3. It is more diref, this libertic being follow- Sia %, 8.Ed3 .ed with frefh Suit by the Subjc&, where the words are not ca.3.Many, but very full and fignificant ;That no man of what flateor condition he be, fhallbe put out of his lands nor tenements,nor taken,nor imprifoned, nor dif- inherited, nor put to death,without he be brought in anfwer by due Procesof law.

Here your Lord 1hips fee the ufuall words of The law ofthe Land, are rendred by Due Proces of the law.

3 o.Ed 3. Rot.parliament. nmmero 9. Amongft the Petiti- 36,F. 7?ot,ons of the Commons, one ofthem being tranflated into Eng. Pa-'liamxu 9.lifh out of French, is thus ; Firft, that the great Charter, and Peticion delthe Charter of the lorrefl, and other Statutes made in the Co:nmonstime of his Progenitors,for the profit of him, and his Como.naltie,be well and firmly kept, and put in due execution,with-out puttting diflurbance, or making arrefi contrary to them byfpeciall command, or in other manner.

The Anfwcr to the Petition, which makes an A& of Patlia- Rfis al petici-ment, Our Lord the King, by the Affent of the Prelates, on.Dukes, Earles, Barons, and the Comonaltie,hath ordained orcftablifhed, that the faid Chartcrs 3nd Statutes bee held andput in execution, according to the f4id Petition. It is obfer-

B vabic

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(8)Sir 8d iard vable that the Statutes were to be put in execution acc6rdfngList aen to the faid Petition, which is, that no arreft fhould bee madeArgument. contrary to the Statutes,by fpeciall command. This concludes

the queltion, and is of as great force, as if it were printed,forthe Parliament roll is the true wariant of an A&f, and manyare om1itted out of the bookes, that are extant in the Roll,

36.Ed 3. o . 36. Ed. 3. Rot. Parliamexti num. 2 2 .explaineth it further, forparln, % z,.- there the Pctition is, tem,,as it is contained in the grand Char-Peticion 4' ter and other Statutes,that no man be taken or imprifoned byCommons. (pcciall command without Inditement, or other due Proces to

be made by the law, and oftentimesit hath beene, and yet it,many are hindred, takenand imprifoned without Inditement,or other Proces made by the Law upon them, is well ofthings done out of the 1Forrefa of the King, as for other things,that it would pleafe our faid Lord to command thofe to beedelivered, which are fo taken by fpeciall command, againftthe forme ofthc Charter and Sratures as aforeaid.

The anfwer is,RiS al Petici- The King is pleafed,that 4I any man Cind himfelfe grieved,on. that he come and make his complaint, and right fball be doneSt'z7.Ed 3. unto him. 3 7,Ed.3.cap,8. agrecthin fubliance w th them, ituaiaS. faiechThough it be cot tained in the great Charter,that no man

be taken nor imprifoned, nor put out of his Freehold withoutProces of the law - Ncvetthcleffc divers people make falfefuggeftions to the King himfelfe, as well for malice as cther-wife, whereof the King is often grieved, and divers of theRealme put in damma e againat the forme of the fame Char-

r; -Wherefore it is ordained, that all they which make Sug-geftions, fhall be fent with the fame Suggcftions to the Chan-cellour, Treafurer, and his gTand Counfell, and that they therefind furetie to purfee their Suggeflions, and incurre the famepaine that the other fhould have bad, if he were attainted, incafe that the Suggeftion be found evil], and that then Procesof law be made againt them without being taken or imprifo-ned, againft the forme of the faid'Charter, and'other Statutes ;here the law of the Land in the grand Charter is explained tobe without Proces of law.

Sta.4 2,Ed3" 4 'ed 3.cap.i 3. At the requcf of the Commons by theirsa.I.. Petition



(9)Petition put forth in this Parliament, to efchew mifchiefc and Sir EdVarddammagc done to divers of his Commons by falfc accufers, Litletmoswhich oftentimeshave made their accufafions, more for re- Argumcnt.'venge and fingular profit, then for the profit of the King, or ofhis people,which accufed perfons, Some have becne taken.and caufed to come before the Kings Counfell by Writ, andotherwife upon grievous paines againft the Law, It is afdhn-ted and accorded for the good governance of the Common;that no min be put to anfwer without prefentment or matterof record, or by due Proces and Writ originalI according tothe old law of the Land, And if any thing from hence becdone to the contrary, it fhall be void in the Law, and holdenfor Error.

But this is better in the Parliament roll, where the Petition2nd anfwer, which make the Ad, are fct downe at large. Rot.Prliam.4 3Ed.3, Rot.Parliamenti, x umero 12.

namz.

The Petition.Item, Becaufe that many of your Commons are hurt and Peticio, des

deflroycd by falfe accufcrp, who make their accufitions more C6mons.for their reverge and particular gaine, then for the profit oftheKing, or of' his people. And thofe that are accufed bythem, foine a r, takenand others are Made to come before theKings Counfell by Writ, or other commandement of theKing, upon grievous paines contrary to the Law. That itwould plcafe our Lord the King, and his good Couniell, forthe juft government of his people, to ordaine, that if hereaf.ter any accufcr purpofe any matter for the profit of the King,that the fame matter be fent to the Juftices of the one bench o,of the other, or the Affifcs, to be inquired and determined ac-cording to Eke Law ; and if it concerne the Accufer or party,that he take his Suit at the common law, and that no man beepit toanfwer without prefentment before Iufiices or matterof Recordand by due Proces and originall Writ,according tothe ancient law of the Land. And if any thing henceforwardbee done tothe con'trary, that it bee void in law, and heldfor error.

Here by due Proces and originall Writ, according to theancient Iaw of the Land is meant the fame thing, as per legerm

B 2 terra



( t)Sir Edward terrtjn Mago a Charta,and the abufe was, they were put toLittleton: , anfwer to the commandement of the King.Argument. The Kings Anfwer hi ths.Rfis al petlti- Bccaufc that this Article is an Article of the grand Charter,on. the hing willeth that this bee done, as the Petition doth de-

mand. By this appearcth thatper legem terra,in Magna Char-ta, is meant by due Proces of the Law.

ObihOrs d'1' Thus your Lordfhips have h,'rd 2c of Parliament in theSta.de Wcft-. point. But the Statur: ofWeflminfl, i.eap.i 5. is urged to dif-I cp. 1, prove this opinion,whcre it is exprefly faid, that a man is not

ftrep]evifabl, who is committed by the command of the Kin.He n~e fonlt pevfacwoi omrtdbthcotadfthKng,replevifcable therefore the Command of the King,without any caufe fhew-,9; font corn- cd, is fufficient to commit a man to pri(on. And becaufe themit per le com- flrength of the Argument may appeare, 2nd the Anfwcr beeMaifd I.Roy. better undetfiood, I will reade the words of the Statute,whichLes parols are thus. And foralhuch as Sheriff, and othcrswhich have ta.rd' 5ta. ken and kept in prifon perlons detc&ed tor Fclonie,and often-

times have let out by Replcvn, fuch as wero not repleviable,and have kept in prifbn fuch as were repleviablc, becaufe theywould gaine ot the one party, and grieve the other. Ad for.afmuch as before this time it was not certainly determinedwhat perfons were repleviable, and what not, but only thofethat were taken for the death of a man, or by the command-ment ofthe Kingor r,. his Iufticcs, or for the Forrefl, it isprovided, and by the King commanded, that fuch prifoners aswere before outlawed, and they which have abjured theXealme,provcrs, and fuch as be taken with the manner, andthole which have broken the Kings prifon, Theeves openlydefamed and knowne, and fuch as be appealed by approvers,fo long as the approvers are living, if they b! not of goodname, and fuch as be taken for burning of houfes feloniou lydone, or for falfe money, or for counterfeiting the KingsScale, or pctfons Excommunicate takenat the requeli of theBifhop, or for minife(t off:nces, or for trtafon touching theKing himfelCe, fliall be in no wife repkviabk by the cf ImmonWrit, or without Writ, But fuch as be indi&ed of Larceny oyirqutas taken before Sheriffs or Bayliffs by their office, or of

light



(II)light ftffpition, br of petit Larceny, that 9moutIteth not above Sir Ed-&'irdthe value of twelve pcnce, if they were not guiltie of tome Littletowother Larceny afre.timc, or guilty of roceipt of Felons, or Argument.ofcommandmentor-offorce,or of ayde of felony done, orguilty to fome other trefpaffe, for which one ought not tolore either life or member, and a man appealed by an approverafter the death of the approver, if he be no common theefe ordefamed, fhall from henceforth be lett out by fufficient furetie,whereof the Sheriffwill be anfwerable, and that without gi-vir g ought oftheir goods; and if the Sheriffe, or any other, letany got at large,by furcty,that are not repleviable, if hee beSheriffc,orConliabc, or any other Bailiff:,or fuch ashath aFee, which hath keeping of prifons, and thereof be Attainted,he fhall lofe his Office and Fee for ever. And if the under She-rife, Conftable or Bailiffe, or fuch as hath Fec for keeping ofPrifbns, doe it contrary to the will of his Lord, or any otherBailiffe being not of Fee, they fball have three yeares impri-fonment, and make a Fine at the Kings pleafure ; And if anyman with- hold Prifoners replevi 'able, after that they haveoffered fbflicient Suretie, he flall pay a grievous amerceentto the King, and if he take any reward for the deliverance offuch hc fhall pay double to the Prifoner, and alfo fIall be in thcgreat mercy of the XKing.

7"be Anfiver.It muftbe acknowledged, that a man taken by the e6m-

mandement ot Ehe Ktrg is not replevifeable, for fo are the ex-prefle words of thi- Statute, but this maketh nothing againftthe D-clatation of the Commons ; For they fay not the She-rife may replevy fioch a one by wreties,filcet manacaptores, butbe is baylcbleby the Kings Courts oFluffice ;for the betterapprcheoding whereofit is to be knowne, that there is a dif-fercnce betweene replev ifeable, which is alwayes by the Shc- DiverGtie crife upon pledges or Suretics given,and baileable,which is by a ter Bayleabl'Court of Record,where the Prifoneris delivered to bayle,and & replevifca .they are his Gaolers, and may imprifon him, and fhall fuffer ble.for him body for body, as appeareth 33 0 36. Ed 3. titalo." ~aznprfell 2 . , 3, where the d:ffcrence bc~wixt Baylc and:

-B 3 yjainprift.



Sir edwird Minprife is exprefly, take, and if the words of the Staw cLittktow tChemielves be obferved, it will appeare plainly that it extendsArgument. to the Sherife and otber inferiour Officers, and doth not bind

the hands of the Judges The preamble which is the keythat openeth the Entrance into the meaning of the makers ofthe Law is ; Forafinuch as Sherifes and others have taken andkept in prifon pcrfons deteted of fclonic. Out of thefe wordsI obferve that it nominateth Sherifes, and then if the Judgesfhould be included, they muft be comprehended under thatgenerall word, other, which doth not extend to thofe of anhigher ranke, but to inferiours, for the bet by all courfes isfira to be named. And therefore if a man bring a Writ of Cu.flomes and fervices, and name rents and other things,the gene.rail fhall not include homage, which is a perfonall fervice,and o fan higher nature,but it fhall extend toordinary annuallfervice, . Droit.67. So the Statute of 13.64 cap.i o.which beginncth with Colledges, 1bt anes and Chapters, Par.fons, Vicars,and concludes with thefc words, and others ha.ving fpirituall promotion.s, fhall not comprehend Bifhopsthat arc o'kan higher degree,as appearcth in the Archbilfhop ofCanterburies Cafe, 2 Rcports,fo.46.R. And thus much is ex-plained in the very Statute towards the end, when it dothenumerate thofe were meant by the word, other, namely un-der Sherifes,ConLablcs, Baiifts&c. Againe, the words arcSherifes, and others which have taken and kept in prifon ;Now every man knoweth, Judges doe ncither arrefI, norkeep men in prifon,that is the ofice of Sherifes and other in.feriour Minitlers. Therefore this Statute meant fuch only andnot Judges. The words are further, that they let (ut by re.plevintiich as are not repleviakle, that is the proper languagcfor a Sherife ; Nay, more expreffe cferward in the body ofthe Statute, that fuch as are there mentioned, lihal be in no.wife replevifeable by the common Writ, which is de -lomine,replegiando, and is direafed to the Sh.rife, nor without WritNwhich isby the Sherife Ex officia But that which r:civesnoanfwer is this, that the command oFthe Juftices, who derivetheir authoritie from the Crowne is the equalled and to thisprpefe with the command of the King, And therefore by all

reafo.



(13)reafonable co-ntu&ion, it mull needs relate to Officers that Sir Edwardare fubordinate to both, as Shcrifes, undcr-Sherifes, Bailiffes, LitthtonsConftables, and the like. And it were a harfb expofition to Argument.fay that thc Jufticcs might not difcharge their owne com.mand, and yet that reafon would conclude as much ; And thatthis was meant of the Sherif& and other miniaters of Jafliceby the rMcitall 27.ed.I.cap.3. and likewife by Fleta a manu.fcript fo called, bccaufe the Author lay in the F leet when hemade the booke, for he lib.z.cap.5 2. in his Chapter of tumnes,and the viewes of the hundred Court in the Countrey fettethdowne the Articles of the Charges that arethere to be inqui-red ofamongft which, one of them is De Replegbiltbmu in-jifte detentis & irreplegiabilibm dimifflis; which cannot bemeant of not bayling by the Jullices, for what hath the inferi-our.Courts in the Countrey to doe with the a&s of the Juati-ces? and to make that more plaine, he fetteth downe in thatchapter, that concerneth Sherifes only, the very Statute ofWejrtmin#fer i. which he tranflates verbatim out of the Frenchinto the Latine, fave that he renders, taken by the command ofof theJufices,thus,per judciam 7ufliciariorum, and his Pre-face to the Statute plainly fheweth, that he undcrflood it ofrcplevine by Sherifs, for he faith, 9* debent per p/egis~ boc di.mitti, qai non declarat boc Stattuum, and per plegio is before the 2.PSherite. But for dircA authority, it is the opinion of Newton, N2e rt.46. PChicfeJu Rice,z 2.H,6 46. where his words are thefc ; It Itnice.cannot be intended that the Sherife did fuffer him to go atlarge by Mainprifc, for w here one is taken by the Writ of theKing, or the Commandcmcnt of the King, hc is irreplevifea-ble, but in fuch cafe his fiends may come to the Juflices fromhim if he be arrefled, and purchafc a Stperfedew ; This Judgeconcludes thit the Sherife cannot deliver him that is taken bythe command of the King, for that he is irreplevifeable,whichis the very word of the Satute : but, faith he, his friends maycome to the Juflices and purchafe a Saperfedeas ; So he de.cdares the very queftion, that the Sherife had no power, butthe Juflices had power to deliver him that is committed bythe KingF command ;and both the ancient and moderne pra-Oife manifcft as much, for he that is taken for the death of a

man,



Sir Edw)'ardLittletonsArgument.

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(14)man,or for the Forreff, is not repleviable by tht Sherife, yetthey are ordinarily bayled by the Jufaice, and were by theKings Writs direacd to the Sherifs in the times of 8e. 1.and 2. as appeares in the clofe rolls, which could not be doneif they were not baylable. And it is every dayes experience,that the Jul ices of the Kings Bench doe bayle for Murther,and for offences done in the Forreft, which they could notdocif they were irreplevifeable, if weflminfl.i. were meantof theJufticei, afwell as of the Sheriff. For authorities thathave beien offered to prove the contrary, are in number three,the firft is 21 .,. 3.Rat.2. which alfo is in the Bookc of Pleasin Parliament at the Tower, upon an a6ion there brought,f01/44. ItisnotanAtof Parliament, but a refolution in Par-liament upon an action there brought, which was ufuall inthofe times. And'thc cafe is, that Stephen Rabaz, the Sherife ofthe Counties of Leicefler and Warwicke, was qufioned, forthat he had let at large by Surety,amongic others, one will;am,thefonneof Walter terPeions, againt the will and commandof the King, wheteasthe King had commanded him by Let-ters under the Privie Scale, that he fliould doe n a favour toany man that was committed by the Eirie of Waroicke, asthat man was, whercunto the Sherife anfwered, th t he did itat the requeil of rome of the Kings houfhold upon their Lct-tcrs, and becaufe th6 Sherife did acknowledge the receipt ofthe Kings Letters, thereupon he was committed to prifon ac-cording to the forme of the Statute. To this I antwer, theSherife was juRly punifhed, for that he is exprfy bcund bythe Statute of weigminf.x. which was agreed from the be-ginning,but this is no proofe, that the ludges had no powerto bayle this man.

The next Authority is 3 3 .H.6. in the Court of CommonPleas , fo. 28. b. 29. where Sobert 'Poyning Efquire, wasbrought to the Barre upon a Capimu, and was returned, that hcwas committed Per Doos de (onilio, (which is flrongeil a-gainft what I maintaine) pro diverfis caofls regem tangent.and he made an Attorney there in an alion, whence it's infer-red, that the returne was good,and theparty could not be de-livercd. To this the anfwcr is plaine.

Firf,

HeinOnline -- 1 Dudley Diggs, et al, Conference Desired by the Lords and Had by a Committee of Both Houses, Concerning theRights and Privileges of the Subjects 14 1642

(05)Firft, -no opinion is delivered in that booke, one way or o- Sir edwtrd

ther, upon the returne, neither is there any tcflimony whetier Lttletontho were delivcredor bayled, or not. 2. It appcares exprcfly, Argument.that hc was brought thithc;, to be charged in an aaion ofdebt, at another mans fuit, and no defire of his owne tobee delivered, or bayled , and then if bee were reman.ded,it is in no way materiall to the queftion in hand. Butthat which is mofl relied upon, is the opinion of Stan. in hisBookc of Pleas of the Crowne, fib.2.cap.8. fOl.72.7;.inhis Chapter of Mainprife, where bee recireth the Statute ofWejlnsi#M.x, cap.x 5. and then faith thus; By this Statute it Rfis al Obi.appearcs, that in foure cafes at the Common law a man was hors de Stan.not replcaviable, to wit, thofe that were taken for the deathof a man, by the command ofthe King, or his Juiices, or forifie Forref thus farre he is moft right, then hee goeth on, andfaith, as to the command of the King, that is undcrflood by thecommandof his owne mouth, or his counfell, which is incor-porated unto him, and speake with his mouth,or otherwife c-very Writor Capias to take a man, which is the Kings corn.roand,would be as much ; and as to the command of the Ju.ces, that is meat their abfolute commandment, for ift bee bytheir ordinary commandment, he is repleviable by the Sherifc,if it be not in fome of the cafes prohibited by the Statute.

Theanfwerthat I give untothis is, that Stanford had faidnothing whether a man may be committed without caufc bthe Kings command, or whether the Judgesought not tobaylchim in fuch Cafe, only that fuch a one is not repLvifeable,whichis agreed, for that belongs to the Sherife. And becaufcno man fhould tbinke he meant any fuch thing, hee concludesthe whole Sentence touching the Command of the King andthe Jufl ices, that one committed by the ordinary command Ofthe Juftice, is replevifeable by the Sherife, or at Ieaft it ap-peares not that he meanrthat a man committed by the King,orby the Privie Counfdl without caufc, fhould not be bayleableby the Jufliccsand he bath given no opinionin this cafe; whathe would have faid,if he had becne asked the queftion cannotbe knowne, neither doth it appeare, that by any thing thathe bath fiid, bee meant any fuch thing as would bce inferred

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(i6)Sir Edward out of-h n. And now my I ordsI have performed the CQiM-L;ttetons minds of the Commons, and as I conceive fhall cleare the Dc-Argument. claration of perfonall libertie, an antient and undoubted truth,

fortified with feven Af&s of Parliament, and not oppofed byany Statute or anthoritie of law whatfoever.

The objefions of the Kings Coanfell, with Ik anfwers madethereunto, at the two othr Conferenees touching the farematter.

T was-agreed by th*. Attorney gencrall, that the 7 Statutesx. OkjeU. urged by the C6:nons werc in force, and that magna C(artadid extend moft properly to the King, but he faid,a .That forne

ofthem arc in generall wordsand therefore conclude nothing,but are to be expounded by te'Prefidents, and others that bee

Le~s. more particular, are applied to the Suggeilions of Subjets,and not to the Kings command fimply of it felfe; Hereunto itwas anfwered,that the Statutes were as dire& as could bee,which appear ii by the reading of them, and that thoughfomc of them fpeak of Suggeftions of the Subjefs,yet others donot,and they that doe are as cffeuail, for rbht they arc in c-quail reafoni commitment by the command of the Kingbeingof as great force,whhen it moveth from a Suggelion from aSubjec, as when the King taketh notikc of it himf~lfc the ra-ther for that Kings feldome interm.-ddle with matters of thisnature, but by information from I=mn of their people.

2.Objelu. 2. Ma(ler Attorney objeacd that per legem ternt in MagnaCharta (which is the foundation of this queflion ) cannot beunderfltood for Proces of the Law and originall Writs, forthat in criminall proceedings no originall Writ is ufed at all,But every Conflable either for Felonie or breach of thePeace, or to prevent the breach of the Peace, may commitwithout Proces or originall Writ, and it weie hard theKing fhould not have the power of a Conflable. And the Sta-tute cyted by the Common,, make Proces of the Law, andWrit originall, to be all one.

Le Rsq The anfwer of the Commons to this Obje& ion was, thatthey doe not intcnd originall Writs only by the Law

of



(17)of the Land, but all other legall Proces, which comprehncds Sir Edwardthe whole proceedings o Law upon caufe, other then triall Littktonsby Jury,?*dicium parium, unto which it is oppofed, thus much Argument.is imported ex vi termini out of the word Proccs, and by thetrue acceptation thereof in the Statutes which have beeneufcd by the Commons to maintaine their Declaration, andmol efpecially the Statutes of 2 5. Ed. 3. cap. 4. where itappearcth that a man ought to be brought in to anfwer by thecourfe of the Law, having former mention of Pt0ccs madebyoriginall Writ. And in 28.Ed. 3. caP.3. by the courfe ofthe Law is rendred by the due Proces of the Law. And36.Ed.3 . Rat.'Parihamenti namero 20. The Petition of theCommons faith, that no man ought to bee imprifoned byfpcciall command without Inditement or other due Procesto bee made by rhe Law. 37 .Ed.3 . cap.i 8. callcth the famething Proces ot the Law, and 4 2.d.3. cap.3. Rtileth it bydue Proces and Writ originall, where the conjun8tivc muttbe taken for a dif-jum ivc, which charge is ordinary to an ex-potition of Statutes and Deeds to avoid inconveniences, tomake itftand with the reft, and withreafonasit may be col-1kted by the law of the Land in Magna Cbarta,by the courf;ot the Law in a5.6d.3 . bythc due Proces of Law in 28.8d. 3 .other due Proces to bee made by the Law in 3 6.6J.;" Procesof the Law in 37.6d3. and by due Proees and Writ originallin 42 -d. 3 . arc one and the fame thing, the later of theeStatutes i Jerring alwaycs to the former, and that all of themimport any due and regular proceedings of law upon acaufe other then the triall by Jurie. And this appearethIo. Rep. 74. in the Cafr of the Marfha*i, and iz.Rep.99, 7ame: Baggs Cafe, where it is underfiood of givingJurifdidion by Charter or preicription which is the groundof a proceeding by courfe of law. And in Seldens Noteson Fortefcue, fol. 2 9. where it is expounded for Law wa-ger, which is likewife a tryall by law by the oath qf the par.tics, differing from that by Jurie. And it doth truly compre.hend chc and all other regular proceedings in law uponcaufe, which gives authoritic to the Con flable to arrcft up.on caufe. And if this be not the true cxpofitiQn of thee words

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(18)Sir Edward perlegem terrt, the Kings Counfell were defired to cdicareLittletont their meaning, which they never offered to doe, and yet cer.Argument. tainly thefe words were not put into the Statute without fome3.0bjeaion. intention of confequence. And thereupon Mr.Serjant jb]ley

offered an interpretation ofthem thui, namely, that there weredivers Lawes of this Realmeas the Common law, the law ofthe Chancery, the Ecclefiafticall law, the law of the Admiral.tie, or Marine law, the law of Merchants, the Marfhall law,and the law of State, and that theta words per kgerm terra doe

R54 a ceo. 1 extend to all thefe Lawes. To this it was anfwered, that weeread ofno law of State, and that none of thfe Lawes can beemeant there fave the Common law, which is the principalland generall Law, and is alwayes underflood by the way ofExcellencie, when mention is of the law oF the Land gene-rally, and that though each of the other Lawes, whichare ad-mittced into this Kir'gdome by Cuftome or A& of Parliament,may jufily bc called a law of the Land, yet none of them canhave the preheminence to be flikd the Law of the Land. Andno Statute, Law booke, or other outnorty,printed or unprin.ted, could be fhewen, to prove that the Law of the Land, be-ing generally mentioned, was everintended of any other thenthc CommonLaw,and yet even by there other Lawes a manmay norbe committed without a caufe expreffed. But it fland.eth with the rule of other legall expofitions, that per legemterr't ntui be meant the Common Law, which is the gene-rail and univerfall Law, by which men hold their Inheritan.es, and therefore if a man fpeake of Efcuage generally, it isunderflood as Littleton -obfervcth, Set.99, of the incertaineEfcuage, whichis a Knights fervice tetnure, for the defence ofthe Realme, by the body of the tenant in time of wurres, andnot of a certaine Efcuage which giveth only a contributionin moncy,and no perfonall fervice.And if a Statute fpeak of theKings Courts of Record,it is meant only of the 4. at Wejf?minfler by way of excellencie, 6.Rep. 20. gregories Cafe ; Sothe Canonifls by the Excommunication fimply fpoken, doe in-tend the greater excommunication. Aihd the Emperour inhis InfIitinions faith, thtthe Civill Law being fpoken gene-rally is meant of the Civill law of Rome, though the Law of

every



every City is a Civill Law ; as when a man names the Poet, Sir Edwserdthe Grxciansunderfiand Homer,the Latinifts Virgil. 2.Admit Littletensper iegem terra extend to all the Lawes of the Land, yet a man Argument.iuft not be committed by any of them, but by the due pro.ceedings that arC executed by thofe Lawes, and upon a caufedeclared. Againe, it was urged that the King was not bound 4.ojefl.to exprefle a caufe of imprifonment, becaefe there may be init matter of State, Pot fie to be revealed for a time, left theconfederates thereupon make meanes to efcape the hands ofJuaice. And therfore the Statute cannot be intended to reftrainall commitments unlcffc a caufebc expreffed,for that it wouldbe very inconvenient and dangerous to the Stateto publifh the

Caufe at the very firft.Hereunto it was replied by the C6mons, Le Rfisth1at all danger and inconvenience may be avoided-by declaringa generall Caui ,as for Treafon,fufpition of Treafon,mifprifionof Treafon or felonie, without fpecifying the particular,whichcan give no greater light to a confederatethen will bee conj-&ured by the very apprehenfion upon the imprifbnment, ifnothing atail were expreffed. It was further allcdged that y.objea,there was a kind ot contradition in the poition of the Houfaof Commons, when they fay a party committed without acaufe fhewed,ought to be delivered or bayled, Bayling beinga kind of imprifonment,deliverie a totall freeing. To this it Le Rfis.hath bene an(wercd, that it hath alwayes beene the difcreti-on of the Judges, to give fo much refpe& to a commitment bythe Command of the King, or the Privie Counccll, which arcever intcnded to be don in juff and weighty caufeg, that theywill not prefently let them free, but bayle them to anfwerwhat fhall be objc'ed again.R them on his- Majefties behalfe;but if any other inferiour Officer doe commit a 'man without1hewing caufe, they doe in iantly deliver him, as having nocaufe to expe& their leafure. So the delivery is applied to animpriforiment by the command of fome meane miifler of Ju.ftice,Bayling when it is done by the command of the King orhis Counfcll.

it wasurged by Mr.Attorney, that Bayling is a grace and 6.Obje&1.favourof a Courtof Juftice,ard tha they may refuf to doeit. Tkis was agrced to be true in divcerm tafes, as whore the LeRiis.

C 3 Camfe



(20)Sir ed*.ard caufe appears to be for felony or other crimes expreffedfor thatLitetnt there is another way to difcharge them in convenient time byArgument. their triallrand yet in thefe cafes the conflant praffife hath beene

anciently and modernly to bayle men, but where no caufe ofthe imprifonment is returned, but the Command oF the King,there is no way to deliver fuch perfons by triall or otherwife,but that of the H4ae Corpus. And if they fhould be then rc-manded,they might be perpetually imprifoned without anyremedy at all, and confequently a man that had committed nooffence might be in worfe cafe then a great offnder, for thelater fhould have an ordinary tryall to difcharge him, the o-

7. ObjelUon. ther fhould never be delivcred.It was further (aid, that thoughthe Statute of Wp minfter i .cap. 15. be a Statute which by wayof provifion did extend only to che Shcrife, yet the recitall ofthat touching the foure caufes wherein a man was not reple-vifeable at the common law,namely thote that were commit-ted for the dcath of a man, by the command of the Kingor ofhis Juilices, or for the Forreft, did declare that the Jufiicescould not baylc fuch a one, and that replevifcable and bay leabl

Stan. plifor.7a, were SjnemrnA all onetand that StanfordaJudge of great autho-ritic doth expound it accordingly, and that neither the Statutenor he fay replevifeable by tme Sherife, but generally withoatreltraint; And thatif the chifc Jufftce committed a man, heais not to be inlarged by any other Court. as app:areth in the

Lc is. Rgiftcr. To this it was anfwcred, That the rccital l of the bo-dy of t,,e Statute, relatcth only to thc Sherifc only, as appear-eth by the vcry words. 2.That Replevifezble is to the Sherife,for that the word imports no more, but a man cornmitted bythe chicfe Juflice, is bayleable by the Court of Ki.gs Bench.3 .That Stanford meaneth all ofthe Sh.rife, or 't kcaft he,- hathnot fufficiently expreifed that he intended tht Ju I!ces. 4. Itwas denied that Repleviteable and baylcable was the fame, forthey differ in rLfpC& of the place where Chey are uf, d, baylebeing in the Kings Court of record, R-plevitable before teiSherife,and they are of feverall natures, repleviable beng aletting at large upon furetie,bayling being when one trxdWtMrin BaUI;v. the haylc are hs Iay!ors and miy imprifon himandfhall fuffir body for body, which is not of replcvying by Sure-

tics,



(21)eyes, and difcreth from Mainprife in this, Mainprife is an un- Sir Edw ddertaking in a fome certaine, Bayling to anfwcr the condem- Littletcxnation in Civill caufes, and for criminall,body for body. And Argument.the reaikns and authorities in the firfi Conference were then Diverfitie CA-renewed, and no exceptions taken to any fave that in 2 2. H.6. ter bayle &it doth not appeare that the command of the King was by his mainprife.mouth, which muff be intended, or by his Counfc]J, which isallone,asis obfcrvedby Stanfordftr the words are that a manis not replcvifeable by the Sherife, who is committed by theWrit or the commandment of the King, 21.d.x. Rotz.'Dorf. was CGted by the Kings Counfell, that it was anfwc-red, that it concerned the Sherife of Leicefter (hire only, andnot the power of the Iudges, 3 3.H. 6. the Kings Attorney con-feffed was nothing to the purpofe, and yet that Booke hathbeeneufually cited by thofe that maintaine the contrary to thcDeclaration of the Commons. And therefore fuch fudden opi-nions as have been given thereupon are not to be regarded thefoundation failing. And where it was faid that the French of3 6. Ed. 3. Rot. pArliament5 numero 9. which can receive no an-iwer did not warrant what was interrec! thence, but that thefewords Sauns difurbance mettre, oi arrefl fair, & le contre per

Aecial mandemext on autre mannere muft bee underflood, thatthe Statute fhould be put in execution without putting diQur-bance, or making arreft to the contrary by fpeciall commandor in other manner, The Commons did uttcrly denie the in.terpretation given by the K ngs Counfell, and to juffifie theirowne, did appealeto ali men that underftood the French, andupon the 7.Statutes did conclude that their Declaration remai-ned an undoubted truth, not controlled by any thing faid to thccontrary.

The

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(32)

vs 1):Sir -dwardLltrktons The true Copies of the RecordsPregikentg. not printed, which were ufed on either

fide of that part of the Debate.

Inter Record. Dorni Regis Carol inTbefauraro Racept.Scaca.-ry fai fub caflodia Thefaxrar. & Camerar.ibidem rema-nent.vk.pl.Coram ipfo 5Domixo Rege, & confiliofa9, adPar-liamentum fauum pofi Pafch. apod London in Maner' Arch-Spifcopi 8bor', enno Regni Domin; Regis Ed3.3I. interalia fic centinetur ut fequitr, Rot.2.indorfe.

Tepbanus Rabaz ricecomes Leic. & Warw. co-ram ipfeo Domino Rege & ejos Concilio arena-tx~: & ad Radem pofitas de hac qmod cu*m L.9. H. & W.H. nuper bafiv' ipfius Vicecomittw,

S per Deom. Regem /Miffent affi'gn' ad Gaolas Do.mini Regis dehsberand eidem vie' quendam w.p.

per quendam appellatorem ante adventum eorum 7ThIiciariorrnibidem appellat. & capp. vivente ipfo.appelktore ufq, diem delbe.rtionL caram eis faR. demifat. per pleviim contra formamStatuti,&c. lEt etiam quendAm R. de C. qui de morte hominis j.dicatgs fuit, & per eundem Vicecomit' captat, Fder; Vi'c perpleviam demifit contra formam Stat. & etiam iem R. fine fer.ri ceram efdem hxfliciar" ad deliberationem prad' produxitContra confuetxdnem Regni, c-; jilter quendam Walterum fii-uSm Walteri le 'Peffone qui per praceptum Comrniti r ar'ici cap'ts fuit dimflt per pleviam contra vocem 6 preceprti Domini Re-gis Cum idem 'Dominus Rex rub literau fuas fob privato Si-gillofoo ekdem Viceaomit, precipiet quod nulli per precepnm pred.Com.Wa) w z capt. ahquam gratiam vel favorem fac. &A-c. EtfuPer boc prIfat, 1B. qui prefens eft, d qui juit primus 70fli.

ciar.



(23)car. pred, premiff.reor 2tur & 3pred icecomcs dic;t quoad pred. Sir Edw4raW.P. ipfe Junquama tempore capt~u p~fim WV. per pred appeta. Lktletontorero dem~f.uit per plviam aliquar ante adven.pred.ficar. Prefidcnts.line dicit quodt per dimid. rvlnni ante Adventure eorum u .

ciar. eaptutauk. Et quoad pr~d. R. bent c~gnofcit quod ipfe di-mifit eur pe plviam, & hoc bene facere poterat ratiomeac am.thoritate offic, fui,eo quod captus fuit pro quadam fimplici tranf-grefflone, & non pro aliqma felonia,pro quo replegiare non p etuit.

t quxoad 3 .v i t . w. fhlium Perone bene cognofcit qued ipfe cfptwufuit per preceptum pred. Com.Wartici & qaod dimifit eum per ple-Viam. Sed dcit quod hoc fecit ad rogatum quorundam de Hofpitia& Caria Dom. Regi qai eum fimiliter inde rogaverint per lite-ru flu . 6t fuper hoc idem vicecom.quefivit per Dom.Regem qutekm rogaJit, & literau fmuw ei direxit, d- ubi literx ile funt, di.cit quod Walterms de Lan ton esm per literas fu& inde rogavit,fed dicit qxod liter, illa font in partibus jui Leic. Et faper hocidem Vicecomes prefert bre. Dom. Regii de privato Iigiilo eidemvie. direR.quod teflatnr quod 'Dominus Rex eidem Vic. precipit,quodomnes illos tranf. contra pacem,& de quibus Comes warvicieiScire fecit, caperet,&- Salvo ( ftodi et abf aiiqua gracia eit

facienda.Et quia pred. ?4u[icar' exprefe recordat. quod ipfe 16foc fui per boxam & Ie galm inquifitionem de militibus & alidscomtnunbus coram eis faH xvtenerunt quod pred. w. de 'Pet/ingdimiJfus frot per plevi m per ma uii tetnpus ante alvrntum eorun-dem 7ul7ic. uj adventiieorundem & per vic.pred. Et etiam qujapred. vie. cognofcit quoa pred. R. dimiJfus: fruit per plev)am per

pfum vic. & hoc die. quod ene face-e poluit, eo qmod captus ,.-it pro lv; trznfgrlfion. .& per record. el fdem lulliciar. compert.eil quod raptms sit pro morte hominis quoa ef contrar. diR.pred. vicecom.&Jfmdtter quod idem Vicecom.cognovit, quod rece.pit literam 'Dom. Reeis per quam Rex ei precept, quod nullamgratiam fecerit iltss qui capt. faer. per precept. pred. Com. (.-idem vicecomes contra p)eceptum illud dimift Fred. wilijelmurmfilium Walter; per plevtam quicaptu fjuit per pretextum pred,Comitis pro xt idem Vicecomes fatetar. 6t fic tam ratione ip 5uatranfgr. quam alioram pred. incidis in pefam Stat. Concefl. quodpred. Vicecomr cowittatur prifonx jixt. formam Statuti,&Ic.

D Ex



(24)Sir gdwrdLittletons Ex Lkot. Parliamenti de Anno 3. RegisPrefidcnts. Ed.3 Numero -9.

Trimerment & la grand C hartre, & le Ckartre de Forreft, &les autres Statuts fait en fon te mps defes Progenitores per -profitsde luy, &de la Commenalty foient ticn & ferment garder, &mife en due execution f!iuns difurbance mettre on arref? faire le

LeRhis. cantre per fpecial mnwienent, oa en autre mancre. Noflre Seig-nior le Royper affent Prelates, Dues, omiter. Parons, & la co.omenaltie ad ordegne & eflalhfhi q les ditr ehartres &- Statat;

foient tenus &-r mie en executionfo Ion le dit Tetition." Numero x 2.

Sea. 36 d.3. Item, comme V! foit conteine en le grand Cb.irtre & autre Sta-XMm. zz. ntS / home /erra prife ne imprijon per Jfecial mandement

fauns Inditiment, ou iutre Proces a faireper le ley c fovenfoit:tt..ad fre. p uncore f plfures gentsfoxt emperchts prif, &imprifon fauns i ;,4He'ent on autre Proces fait per le ley Cureux, cibien del choe fait hors de le forrefk 'Dor. Regis cumpir.Iitre Caufe pleafe avaut dit par le command. & delv.ceux q,.font auxi prife per tieljfecial mandement contre le formedt Chartres & Statnuts avaut dits.

Le Ris. Item, plefl on Roy & finul de fent greine veigne, & fait leplaurt & droit ferra fait a luy.

Parliament. Anno 42.Ed. 3. Numero 12.sta 4 1.Ed 3. Item, par ceo % plufors de vofire common font difworts ptnficro i z. faux accu/ance qu- ux Jont lour ncrufants plus pur lour vesgen-

ces & ing, s profits % par leprofit delRoy on de fon people, & "4taccufoirs 1 ur eux afcxnJ on en p-ifon, 6- afcunsfit venire de."cant le confaal le Roy per brief ex autre mandement de Roy algreife Relme d, cntregovernment defon people ordesne j fi de-lprespurpfe afcun mattre pnr profit del Roy , cl matire foitmando a lofts fices deln Banckys, ou del autre, ou del eJ7ff edent inquire on terminere Ilon la ley. Et ft tvxch la accufer otpirte ditfontft itntal Common ley,& nal home foit mife a reffi,,-dere fans prefentment devant I flices en chofe de record, e perdue -roces & breif original folon ia auncient ley de la tere &fT riende fore .avaunt e xfoitfai to .. ontre foit void ev ley &



( 25 )deeme pmr error. p ei ce# ceft Article eft otkle do hi Sir dw4r4fgrandCh4rtre to Roy voit cep ley foit fdt on li Petios de- Littleton

PrcfidentLe liis.

Ex Rot. clauf de Anno Regni Regis Ed. i. primonumero, Membrano 1o.

Tbomas de Clere de 'eckwith, captus & detent. in prifona de nof 1. Ed. r2Nortbamton pro tranIgreffiene forreft. habet literai Rogero de Pro tranfjr.Clif ord Ififtciar' citra Trent quod ponatur per Bkt' Dat. apadSaR.Mrtin. Magn. London 2 o.die Otlobr.

Membrano 7.Stephanus do Lindfey cap t. - aetent, in priina pro tranfgref pro tr ir.

per ipfam fa&. in Forrtp. Regid de Lindley haket hteras Regis Forefl.gaf rido do Nevill lufliciar. ultra Trent. quod ponatur perballbum.

fl Membrano 8.Tho.Spademan capt. & detent. on prifopa de Oxon. pro morte Pro mote bo-

Wi/ielmi Winne xnde reaat. eft habet fiters Regis Vicec.Oxon. minis.quodponatur per ,d'.

Mcrbr. V.Wblm de Deane, c.Yfatheu Cruif , Roger de Bedeil,

wV.Falfefrench, Rebertu4 Wyat, Akxander Hareing, Harry deShorne, Mcelas ae Sindrionde, TDtrgefuas de Ilertfield, Robertusde Pole, &" Richardui q74ias, capri & dent.in prifena de Cant.pro morte Galfridide Cottdler unde appellati funt ha bent literasRegis V'ic' K a n. qeod pouantxr per Ball' Dat. 2 ,MartU.

Clauf.Anno 2.Ed..Mcmbr.i 2.Rd ger.de Clifford, Iufliriar. Forrefi. citrA Trent manda- Ane Z.Ed.1,

muS nobis quod fi Robertus Vnwii, Capt. - detent, in prifonaxoflra de Aylexbxry pro tranfgr. Forrefi. neftri invenerit nobi Pro trangr..1 2.probo_ & legaks homines de Ball. vera qui manucapiaxt Farref.eum habere corum lufisciar. nofir. ad placita Forrefj. cam inpartes,c. adStand.inde reC at. hunc ipfum Robertum fi fecun-dam AJJi/am Forrefl.fxer.repIe per dtlos duodecim interim trA.ditar in Ball ficut p td. eft & habeatis nomina WItormm i a.kormMum.Et hic 6re.&c.D4t.2 7.Februa,.

D 2 Clhf.



(26)

Chur. Annomt2EdT.nu1-4.Sir Edward W;imms de Trirot, Galfriem de Wick'ram, & B-H o de Stone,Littletons detet. in prifon Regit de Ailesbury pro t anfgr. venationi ha.Prcfidents, kqt bre. dtre. Fogero de Cliford Imflic;ar.-Forrefi, qiodf fe-De oncnd. n i una' m Affl.For/iacermrt repleg.uf advent.IiuiJiciar.Regij adPT ;?. pl4cita ForrePf, cum in partes ill venertint.dat.apid CoddifgtonFs. 2 8.die D ecembr.

de Nu.r 5.Pro morle ho. (u7;lbert Courvey de Kedaington, .: Hugo le Taylor de Ked.-minis. diigton Capt. c detent, in prifon fan i Edmundi pro morte

Edmindi Bunting unde re~tati font habue7int Iterm Regis Vic'Suff. quod ponantor per Ball'.

Anna E.~d, i. ClauE AnnQ 3.Ed.i.num I i.Gafrdu de Hairton captim & detentas in prifona Regii 6bor'

Pro morte bo- pro morte Add' Clere-unde re&tatus ef" habet literas Regis 'w:'minis. e6or. luodponaturp.er Bal' Dat apmdWeftmrnzf, X4.7?M .

Num. 20.

Pro moyte bo Robertu uTelbarbecaptms e dctenrus in prifona de Aeirgate proins.e -morte Thomx Pollard R kde reHatus efi batet literas Regis Vic.

Midd quod ponattrper 'Ba/l' D at, 2 8. Februar.

clanfnu,4.Ed, i. Membr .Mandatum efl Rado de Sandwico quodfi W. de Pattare, &.

Iobannes filius ejus, Walterui Home, Walterw Corwen, 1-enricr'.Path, & w. caciegan, capt. & detent, in prifona Regis'de S(I..Brionell pro tranfgr. Forr. unde reaati funt invenerint r .i 1 2.probos & legales orm;nes de Waltiarxa,vkt. quilibet eoram 1 2.

Pro tra,%;T, qui eos manucap' habere coram 10flciar. Regis ad placita Forreft.-Forrefi. cumm partes lm venerit ad fland. ndereat, tane ip/os ; 'Wil-

lie/m. Iohannem, walterMum, Watteram, I-enricum, 6- 7lielm.pred. 2. fifeundum AfsiiT fuer. repleg. tradantur in 'Bal' At'pred. eft f! kabent ibi nomina ifloram i 2. ,hominum & hoc bre.Tefl.Rge apudBel'locum Regis 29. 4fe AVuglu.

ClaufAnno 4 .Ed.I .membr.i6.Fenrits fiies Rogeri de Kmi & Cottesbrooke capt. & detent.

inl



on pro:(on oltra n of t rth4wptot mrott Syo't di CIhjv ette//'SiT EdwearU ve appeffatus eft Iabes literw Regis V'e Northampton quod LittletoPs

ponaurper bak timr,. Prfident.Pro rnorte ho-

C'aiuf.Anno 5 .Ed.x membr.i. mnis.

Alandatum efi . 1efrld. de Nev Iufliciar.Forrefl.mlzr.7rent. Pro tr n 'fy.quodS. walterus de le Greene Captus & detentus in prifina de FaPreft.IVottingbham pro tramfgr. For' invenerit [lbi 1 2. probos & /egaleshomines qi i eam manucapiant, &c. ad fiana" inde rellat. fecun.dom afijf Forr' Regis runc ibidem Walter. pred.I 2. traditur inBallim fcot pred.ecfl.at. i 6.Novrmb.

1Membrano 2.Thomas de Vpwell, & hiliana axor 'fris Capt. &- detent. Pro morte .o-

in prifona de wynboteflam pro morte Stephani Sontet nde re rr i4s.atW 1int habentliteras Vc' Norif. qxod ponantur per Ballium.

)bar.aprid RothCim 2 S. die Sqtembr.

Clhuf. Armo 6.EJ. fu 2.Bitherus Pegtle captus & detentus fuit in prifona Rs de Nor. Pro morte uxor.

7vici pro morte IM/anx quondam uxor' fux unde relatus efi C./iabet literas Vic' Norff quodponatur per Ball, Tefe Rege apuaWefl'm;. . .INovemb.

Membr. 4.Alandatum eft ric' Nottingham qaodfi Tho.de Cudart refiat. Pro trang.Forr.

de tran[gr. Forrefl.quod feciffe debattr in Forrefi. de Sherwoodinveneritfib ex probo; & legales homines de BalIhafua qju eumAz,-n*.ucap' habere coram rege ad mandatom regis ad Stand. ree.coram -rege cum Rex inde cum eo loqui volierit tunc pred. Tho.pr.. 6 hominibAm trad in Ball' juxta manuc~pt. prxd.Dat, 12.die Pecembre Mernhr.4.

Tho. Burrellcapta &0 detent. in prifona Reg;s Oxon. pro morte pro ro'ylh'Mi.jalfrid. jeffard mndt reflat. e habet literas Dom.Regis ric 7js.Devon. qucd ponaturper BaI'.

Clau4. Anno i.td 2.MeMbr.yPo-Mot!OAb:nes Brynn de Rollin Writh capt. & detent. in pri/ona pro morse !.

D 3 RX,



Sir edward Rogli Oxon. pro morte 7oharnjs de SMtt00 Ode rett- 40*f .ea lZ-Littletn: tera, Regit Vie. Oxon. qmod ponatur per Tall. Isf, prim. Afijf.Prctidnts. e,% occafione,&c. Tefte Rege apidTrflo!l 2 8.Immn.

Membr. 2.W.Spore Capell. capt. & detent.in prfona Re.;t Oxon, pr.

morte 7ohannis Spore unde ?nditatmu efl, & habet literas Regitric D'evon. quod ponatmr per Ba/ium uo4 ad prox. Afflf. Cs eaoccafiete,&c. Tefle rege apud windor 2 8.de M4a.

Numero x o.Pra morle bomi- q ilbert w Fairchild capt. d- dotexs. in Goole Regis "ioree-nif. fier pro morte Heneri de Langton unde indilat. eft habet literia

quod ponatur per Balimm uxf ad tram' afflif. Tefle R ge apmaWeflminfl 2 8.FeruAr.

Clauf. Anno2 Ed 2.Mcmbr.T.P'o morte ho- Willkmus Sandie de Cobham Capt. & aetent. in pri/on Re-minis. gi Cant.pro morte Iohannu de Sprink, Iohanni Ermona de Dun.

berke unte re1atus eft kabet literas Regis Vic' Kanc' quod poxa-tur per Ball uf adprimam Aff. Si ea oecafone,e c. Tefle regeapd Ceftre.-29.1nj.

Pro morte bo- Rads orynn capt. & detentmi in Gaole Regi de Lncolne prominis. morte Wilielmi Fil Symonis Porter snde reat, efi .& babet i.

teras Regis Vic' Lincolve qod ponatsr per Ball' af' ad primum?Aftff. Si ea occafrsne, &c:. Tcfte rege pud Sheene 3. die Iun.

Membrana 7.Pro marte ha. Iohannes de Gitierd Captj & detent. in pr/ona Regis Ebor'?in~fis, pro morse Mathe Sampfon de Ebor' unde relat e.4 habet lite.

rxs Regis Ic' E bor" quod ponatur per Ball' sif& ad priv' Iff7.Datr' apud Laaele 5 o. die Aprilit.

Clauf.3.Ed.2. Membr.3.Po mote bo- Adam de Pepper captus & detent. in !gale Reij ebor' prominis. morte Henrici ae Symer' de OnflricksundereElatus eft habet literas

Regis Vic' Lb or' quodponat per -Bali" #fj ad primrm AffiJ.Teflerelge apmd Weflmi? .7 re Febr.

Numero 14,



Numero 14. Sir Edw ,A4argareta uxor wi/lielmi Colbot capta I detenta i q#ael Littletens

Regis Norwici pro morte Agnetis filit Wi/llmi Colbot, & M4a- Prefidenti.tildefororis ejufdem Agnetis unde reaata efi habet literom Regis Pro morte z.Vic' Norf. quod ponatur per Wall' Tefle rege apmd Shene 2 2. femes.Zanuar.

Numero x 6.Iohannes Frere Captus & detent, in qaole Regis Oxon. pro Promortc be.

morte Ada de Ogeleih unde reaUata efi ha bet literas Regis Vc minis.Devon. quod ponator per BAY Tefle rege apud weflminfl. S.Decembf.

Clauf. Anno 4.Ed.2. Membr 7.Robertut Shrene Capt. & detent i# Gaole Regis de Colchefler Pro Mrte her'.

pro morte Roberti le Maigme unde reaat. efg habet literas Re *rc' fexquod ponatur per Ball' ufj ad pehn' 1Jif . Dat., 2.die cm f.

Fumero 8.W.FiliUs Roberti le Fibere. de Sbirborne capt & detent.in aole Pro morte box.

Regis 6bar' pro morte Rdberts le kfons de Norton unde retlatw4s7 habet Iterm Regis Vic. ebor. quod ponator per Wal. ifj a dprimam Itffif. Dat.2 5.April.

ClaufArno 4. Ed.2. Numero.2 2,7honas Ellis de Stanford capt. &- detent. in prifona Regis Pro mo-te horn.

Linrdne pro morte Michael. fifi wilielmi de Fodering undretat.eft kabet literas Regis Vic. Lncone quodponator per Wal'uff az prim. Affi. fefle Bege apod novum monafterium 8. dSq'rTmbr.

The



(30)

A The Argument which by theCommand of the Houfe of Commons was

made at their firif conference with the Lords,touching the'perfonall libertic of the perfon of every

Free-man, out of Prefidents of Record, andrefolutions of Judges in for-

mer times.,

MY LoRD S.Our Lordfhipslhave heard from the Gentle-man that laft fpake a great part of thegrounds upon which the Houfe of Coin.mons upon mature dcliberation proceeded tothat clere refolution touching die right ofthelibertie of' th ir perrons. Ihe many Afuof Parliament, which are the written lawes

of the Land, and are exprefly in the point, have beene readand opcned,and fuch Objedions as have beene by foine rnadeto themand fome Objeaions alfo made ou. of another AdofParliamnnthavc bcne cleered and anfwercd. It may feemcnow perhaps (.my Lords) that little remines needhull to beefurther added, for the inforcement and maintenance of' fo fun.damentall'andeftablifhcd a right and libertic belonging toevery Free. man of the Kingdome. Buc in the examinatioi of-queflions of Law ofright, befides th- Lawes or Acis of Par-liament, that ought chiefly to dirc& and regulate every mansjudgement, whatfoever hath beene put ii pra-ife t6the can-.trary, thcre are commonly u fed alfo former Judgements orPrident;, and indeed have beenc fo ufed fometimes, that theweight of" reafon, of lawand of A1s of Parliament, hath beenlaid by, and refolutions have beene made, and that in this verypoint, only upon the interpretation and apprehenfion of Prefi-

dents:



(3')dents. Prefidcats my Lords are good me a or proofcs Mr.Selekn:of illufiration or confirmation where they agree with the Argument.cxprefl Law, but they can never bee proofe enough tooverthrow any one law much leffe feven fcverall A6tsof Parliament as the number of them is for the point. Thehoufe of Commons therefore taking into confiderationthat in this queftion being of fo high a nature that neverany exceeding it in any Court of Juftice whatfoever allthe feverall wayes of juftl examination of the truth fhould beufed, have alfo moft carefully informed themfclves of all for-merjudgements or preidents concerning this grcat point ei-ther way, and have bcen no leff: carefull of the due preferva.tion of his Majeflies jutt prerogative then of their ownerights. The Prefidents here are of two kinds, either mcerelymatter ofrecerd, or elfe the former refolutions of the Judgesafter folemne debate in the point.

This point that concernes prefidcnts the Houfe of Commonshave commanded me to prefent to-your Lordfhips, which Ifhall as briefly as I mayfo I doe it faithfully and perf picuoufly.To that end my Lords,before I come to the particulars of anyof thofe Prefidents,I fhall firft remember to your Lordiliipv,that which will feeme as a generall key for the opening andtrue apprehenfion ot all them of Record,without which keyno man unkffe he be verat in the entries and courfe of theKings Bench can poflibly underfhand them.

In all cafes my Lords where any right or libertie belongsto the Subjaes by any pofitive law wiuten or unwrittcn, ifthere were not alfo a remedie by Law for the enjoying orregaining thisrightor libertie when it is violated or takenfrom him, the pofitive law were mofi vaine and to nopurpofe, and it were to no purpofe, for any man to haveany right in any land orother inheritance, if there were norak 0wne remedie, that isan affion or writ, by which infomc Court of ordinary Juftice le might recover it. And inthis cafe of right of libcrtic of perfon, ifthere were not a re-medic in the Law for regaining it when it is reftrained, itwere of no purpofe to fpeak of lawca that ordain it fhould notbI rcflrained.Thcreforc in this cafe alfoj Iball firt fhcw you

E the



(32)Mr.Seldent the riemedie that every Free man is to ufe for the iegaining ofArgumnrt. his libertie when he is againli law imprifoncd, that fo Upon

the legall courfe and forme to be held in ufOng that remedic,the Prefidents or Judgements upon it, for all Judgements ofRecord rife out of this remedie, may bee eafily underflood.There arc in law divers remedi:s for inlarging ofa Free.manimprifonedas the writts oF Odio &- 4tia,and of Homine re-plegianao,bcfides tbe common or moft knowne Writs of Ha-beas ('rpus, or Corpus Cwm caufa, as it is called alfo.

The fir(I two Writs are to be direded to the Sherife of theCounty, and lie in lo-.e paricular Cafes,with which it wouldbe untimely for me to trouble your Lotdll.ips, becaufe theyconcerrc not that which is committed to rn .h?rge, But thatWrit of Habeas Corpus, or Corpus cum cgxf'a, is tr,, I Ixct re-medic in Law for any man that is imprifonc', , thc onlyremedie for him that is imprifoned by th. fp,iciall commandof the King, or the Lords of the Pri,,>, Cot,.f11, withoutfliewing caufe of the commitment, neither is there in the lawany fuch thing,nor was there ever Mention of" any fuch thingin the Lawes of this Land, as a Petition of right to be ufkd infuch cafes for libertic of the perfon, nor is there any legallcourfe for inlargement to be taken in 'uch cafes,howfoever thecontrary hath upon no ground or colour of law beenc preten-ded. Now my Lords, it an), man be fo imprifoned by any fuchcommand, or othetwile, in any ptifbn whatfoever throughengland, and dcfire by himfelfe, or any otherin his behalfc, thisWrit of Habeas Corpus fcr the purpofe in the Court ofthe Kings Bench, the Writ is to be granted to him, andought not to be denied himno otherwife then another ordina-ry originall Writ in the Chaiccry, or other common Procesof law may be denied, which amongfa other things the Houferefolved alfo, upon mature deliberation, and I was com-manded to let yout Lord fla. krow fo much.Tbis Writ isdi-&ed to the Keeper of the Prifota in whofe cuftodie the prifoierremaines,commanding him chat after a certaine day he bring inthe body of the prifoncr, ad St bikiend. & recipiend. juxt.a quadcuriaconcedaverit,&c. tna urne caufa Captions, & detenstionis,and oftentimes una cum mafa detentioniJ only, cal tionis beingomitted. Thi



(33)The Keeper of the prifon therupon returns by what warrant Mr.rj'daw

le detaines the prifoncr,and with his returne filed to his Writ, Argument.brings the prifontr to the Barre at the time appointed ; Whenthe returnc is thus madethe Court judgeth of the fufficiency orinfufficiency of it, only out of the body of it, without havingrefpe& to any other thing whaifoever, that is they to fuppofethe returne to be true whatfoever it be, if it bee falfe, the prifo-ner may have his a&ion on the Care againi the Gaoler thatbrought him. Now my Lords, when the prifoncr comes thusto the Barre t he defire to be bayled, and that the Court upontbcview of thrcturnc thinke him in Law to bee bayleable,thenhc is alwayes hrit taken from the keeper of the Prifon thatbrings himand committed to the Marfhall of the Kings Bench,and 2fterwards bayled, and the entry perpetually is Cammitti-t:ir Mayifoi-al/o & pflea traditur in Bali', for the Court neverbayles any mi n,uriti:I he firif become their owne prifoncr, andbr in Cumloasa Marri(cafl' of that Court. But if upon the re.tun of the Habeas eo, pus it ippeare to the Court,that the pri.foner oughtnot to be bayled,nor difcharged from the prifonwhence he is brou.Iht,thcin he is rcmwInded or tenr bick againetheie to contirue,untill by courfe ot law hc may De dclivered,and the entrie in this Cafe is Remittittu, qi,.'z.' fecindsm le-gem aeli~eratus fuerit, or Remittitgr quof4f,&'c . which is ailonea d the, hgbeft a ward or judgement that ever was or canbegiven upo: a 1-'a:beat Corpms. But if the Judges doubt onlywhether in Law they ought to take him from the prioinwhence he ame, or give a day to the Sherife to amend hisWrit, as often they doe, then they remaund him ony,duringthe time oF their doubte, or untill the Sherife hath amen-ded his retarnean d the Entrie upon that is Remitthur ory, orRemittirr prifon e prad wi hout any more. And fo remitriturgenerally is of farre Ife moment in the award upon the Ha-kta'Carpus, then remttitur qtouf &c. howfoever the vulgaropirions raifed out of the late Judgemcnt be to the contrary.All Ehei things are of moft kno .x ne and conflant ufe in theCourt of Kings Bench.as it cannot be doubted but your Lord.flhi ,, will eafily know from the grave and learned my Lordsthe Judges.

E i Thefe



(34)Mr.,'eldexn Thefe two coutfes, the one of the entrie of oefmmtrturArgument. Alarefcall. & poflem tradtar in Balltim, and the other remit-

titr quouf j,,&c. & Remittitir gererally, or IRemittifur prfonvpred. together with the nature of the Habeas corpus,thus [fated,it will bee eafier for me to open, and your Lordfhips to ob-ferve,whatfoever fhall occurre to the purpofe in theyrefidentsof record, to which I (ihall come now in the particular.Buc before I am come to the Prefidents, am to let you knowthe refolutions of the houfe of Commons touching the in-largemcnt of a man committed by the command of the King,or the Privie Counfell, or any other, without caufe fhewedof fuchcommitment,it is thus ; That ifa Freeman be commit-ted or detained in prilon or otherwlfe rcftrained by the com-mand of the King, the Privie Counfell, or any other, ard nocaule of fuch commitment,deteineror re(raint,to be expreffedfor whichby law he oughtto b- committed, detained, or ie-firained,and the fame be returned upon a Habeas Corpus gran.ted for the party,the heought to be delivered and bayled.

This refolutionas it is grounded upon the A&t of Parlia.ment already fhewen, and the reafon of the law of the Land,which is committed to the charge of another,and anon a lCo tobe opencd to y ou, is flrcngthcncd alfo by many Prefidents ofRecord.

But the Prefidents of Record that concerne this point arcof two kinds, for the Houfe of Commons hath informed itfelfe offuch as concerne it either way. The firil fch as iliewexprefly that perfons committed by the command of the Kingor of the Privie Counfell without other c ufe (hcwcd havebeene inlarged upon bayle when they prayed it, whenceit appeareth cleerely, that by the law they are bayleable, andfo by Habeas Corpus to bee fct at libertie, tbr though theyought not to have beenre committed wi:hout a caufe (hewed.of the commit ment, yet it is true that the reverend Judge;ofthis Land did fuch refpe& to fuch commitments by the com.mand of the King or cf the Lor 4s of the Coun

(35)fuffcient1v fecures and preferves the liberty of the Subje& ac- MrSeldeu:cording tothe ]awes that your Lordfhips have already heard, Argument.nor in any of the cafrs is there any difference made betweenefuch c6m tments b the I ords of the Counfel,that are incorpo.ratd with him. The f-cond kind of Prefidents of Record arefuch as have bcee pretended to prove the law to bee contra-ry, and that petfins fu committed ought not to be fer at Iiber-tie upon bayle, and are in the nature of Objedions out ofRecord.

I fhall deliver them fummarily to your Lordfhip; with allfaith, and allo tru Copies of them, out of wich it flall ap.peare cleerely to your Lordfhips, that of thofe of the firft kindthere are no leffc then i2.moft full and dirc&ly in the pointto prove that pcrfons fo committed arc to be delivered uponbayie, andamongft thofe of the other kind, there is not fomuch as on, not on,that proves at all any thing to the con-tary ; I Cnall firlt my Lords goe through them of the firakindand fo obfcrve them toyour Lordfhips,that fueb fcruplesas bave bcene made uponthem by fome that have excepted a-gain ft them fhali bee ele red alfo, according as I fhall openthem fevcrally.

The firft of the firfl kind is of 6d.3 , timeit is in Pafche x. pp. x8.Ed..Ed 3 .Rot. 3 3J. he Cafe was thus ; Bi/deflons Cafe.

King Ed.3. had committed by Writ, and that under hisgreat Scale (as moa of the Kings commands in tholc timeswere ) one 1okm de ,Bideflon a Clergie man to the prifon to theTower without any caufe fhewed of the commitment. TheLi, vtenant ot th -Tower is commanded to bring him to theKing, Bunch, where he isconmited to the Marfhall, but theCourt ask-s of the Lievtenant, if there were any caufe to keepthis Bildeflon in prifon, befides that commitment of the King,he qnfwered no, whereupon the Roll fayes, Q,,xia videtur curC're p; td. ftfficiemr.non efe caufam prad.Iohav.de Bildeflon in pri.

fova Dom. Regifs ic detinend' idem lohannes admittitur per ma.nuraptionemw lltelr dew.ek fl Id,and fome others, where theJudgement of the point i6fully declared in the very point.

The fecund in the firtl kind of Prffiderts of Rccord i in the 2z H-.VPartimof h.8. onc M 'Toovkers Cafe, who was committed to kes Ck?



(36)M r.soldel the Sherifc ofLendo,e o fecuritate p.c4i, at the fuite oF oneArgument. Brintonac pro fx jitinefelonke committed by him in Glocefler-

fhire, ac per mandatiiDom.R:, he is committed to the Mar(hallof the Kings Bench,& poflea iflo eadem termino traditur inBall'hcre were other caufes of the commitment, but plainly onewas by the command of the King, fignified to the Sherife ofLondon, ot which they tooke notice,but tone have interpretedthis, as it the commitment had beene for ufpition of felonie bythe command of the King, in which cafe it is agreeable of allhands,that the Priforier is bayleable, but no man can thinke foof this prefident that obfervem the context and underdands theGrammar of it,wherein molt plainly acper wandati Doam. Re-gis hath no reference to any other catife whadtoever, but is as afingle Caufe enumerated in the returne by it felfe, as the Re.cord cleeely fheweth,it isin 2z.HS.Rot. 37 .3 8. B'PCkS The third is of the fame Kings tim=,i-is 3 .H. 8.RVt. 3 3 .I49n

cafe. Binckf Cafe, he was committed by the Lords ot the Counfellpro fmpitio.it felonix ac pro abis caqifislzios moventibas qxi com.mittitur Marzfcallo & immediate ex gratia c rix fpeciali tradi.sur in Ba/i' They committeJa him tor-fujpition of' felonie andother caufei them thereunto moving, wirln there might bematter of State,or whatfoevr ,lIe can be fup .fid nnd plainlythe caufeoftheir commitment is not ex r f:d,yt tJe Courtbayled him withouthaving regard to thLA. unknowne cauesthat moved the Lords of the Couniell. But it is indeed fori:diffrercefrom eitherof thofeother 2. tha-t precede, and fromthe other 9 alfo that follow;for it is agreed, tha t if a caufc beexpreffed in the returne, infomuch that th! Court. can knowwhy he is cc mmirted, that then he may be bayled, but not itthey know not the caufe, now a man is committed for a caufcexpreffid, & pro ali cafis Dominos de Conliiio moventibuts,certainly the Court can no more know in fuch a cafe what thecaufe is,then any other.

I& 3.p& ThefcurthoF thefeis in the time of Queene A'ary, it is,%ar. Overtons Pafcbe 2.& ;. P. & .Mar.Kot. 18. Overtons Cafe, Richard o.Cafe. verton was returned upon aJ-Jbeaos Cvrpus,dre&d to the She-

rifes of'London,to have beene committed to them and detey.nod per taandat#m proobiliom D ominorum honvrabili ex ffnfl

Dotal.



(07)Domhinrvm 'RTegi: & -egjina, RjW lfon$ttttP iWarr..& Mr,$dk'immediate traditur in BalP. In anrwer to this Prefident, orby Argume!t;way ofobjefion to the force of it, It bath beenc faid that thisOverton at this time flood indided of high treafon- It is teTLChe wab fo indited,but that appeares in another Roll,that hathno reference to the ret urne, as the returne hath no reference tothat Roll, yet they that obje& this againft the force of thisPrefidentfay that becaufe-he was Indited ofTreafen,thereforcthough he were committed by the Command of the Lordsof'Lhc Counfdll without caufe fbewcd,yet he was bayleable forthe Trcaibn, and upon that was here bayled; Then which obje-&ion nothing is more contrary,either to law or common rea-fon. It is mot+ contrary to law, for that cleercly every re-turne is to be adjudged by the Court out of thebody of it felfe,and not by any othcr collaterall or forraigne Record whatfoe-vcr, Therefore thematterof Indidment here, cannot in lawb: caufe of bayling of the Prifoner, And fo it is aycrfc to allcommon reafon, that if the objedion be admitted, it muft of'Sneceffiie follow, that whofoevcr fhall be committed by theKirg,or the Privie Counfeil, withourcanfe fhewed, and bccnot indited of Treafon or fbme ohcr offence,may not be in-larged, for by reafon of fuppofition of matter of State, Butthat whofoever is fo committed,andwithall flands fo indiffodthough in another Record may bee inlarged, whatfoever thetflatter of State be for which he was committed. The abfur-ditic of which affertion needs not a word for further confuta-tion, as if any of the Gent. in the laft judgement, ought tohave beene the fooner delivered, if bee had beene alfo Indi-ted of Treafon, if foTrairours and Fellons have the higheftpriviledge in perfonal libertie, and that above all other Sub-je6 s of the Kingdome.

I he fifth of this kind is of Qucene Q3'faries time alfo, 4.& 1.Phit.ir is ?Pafch. 4. &

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