THE ARGUMENTS UPON THE WRIT OF Habeas Corpus, IN THE COURT OF KING'S BENCH. WHEREIN, Are learnedly discussed, not only the several Branches of the said Writ, but also many Authorities as well of the Common as Statute Law: and divers ancient and obscure Records most amply and elaborately debated and cleared. TOGETHER, With the Opinion of the Court thereupon. Whereunto is annexed, The Petition of Sir john eliot Knight, in behalf of the Liberty of the Subject.  
LONDON, Printed by M. F. for W. Lee, M. Walbancke, D. Pakeman, and G. Bedell. 1649.   
ARGUMENTS upon the Habeas Corpus concerning Loans.  

Sir Thomas Darnell his Case, Michaelis 3ᵒ Caroli, Banco Regis.  
SIR Thomas Darnell Baronet, being imprisoned in the Fleet by virtue of a warrant signed by the King's Attorney General upon the third of November, by Sergeant Bramston his assigned Council, moved the Justices of the King's Bench to grant him a Writ of Habeas Corpus cum causa directed to the Warden of the Fleet to show that Court the cause of his imprisonment, that thereupon they might determine whether his restraint were legal or illegal, and it was granted by the Court returnable Thursday following the 8th day of November.  
On Thursday Sir Thomas Darnell expected that his Writ should be returned, but it was delayed, and it was moved that the return should be on Saturday the tenth of November, which made Sir Thomas Darnell the more remiss in suing out an Alias upon his Habeas corpus.  
On Saturday the Writ was not returned, and thereupon the King's Attorney General gave order for an Alias upon the Habeas corpus for Sir Thomas Darnell, returnable upon Thursday morning the thirteenth of November; by virtue of which Writ the Warden of the Fleet brings Sir Thomas Darnell to the King's Bench and returneth as followeth:  
Executio istius brevis patet in quadem schedula annexat' huic brevi.  
The Return was this:  
Ego Henricus Liloe Miles gardianus prisone Domini Regis de le Fleet, Serenissimo domino Regi certifico quod dict' Thomas Darnell Baronet detentus est in prisona praedict' sub custodia mea virtute cujusdam Warranti duorum de privato Consilio mihi directi, cujus tenor sequitur in his verbis: viz.  
Whereas heretofore the body of Sir Thomas Darnell hath been committed to your custody, these are to require you still to continue him; and to let you know that he was and is committed by the special command of his Majesty, etc.  
Et haec est causa detentionis predict ' Thomae Darnell.  Sergeant Bramston. 
May it please your Lordship, I did not expect this Cause at this time, neither did I hear of it until I came now into the Hall; and therefore I shall now humbly show you what my Client hath informed me since my coming hither. I understand by him that he expected not his coming to this place to day, the writ by which he was brought hither was not moved for by him, but was procured without his privity, and seeing his case is so, and that he perceives the cause of his coming, which before he knew not, his motion to your Lordship is, that you would be pleased to let him have the Copy of the return and give him time to speak unto it, and that this writ being not sent out by his procurement may not be field.  Heath Attorney General. 
My Lords, it is true that this Gent. Sir Thomas Darnell being imprisoned in the Fleet, did heretofore move your Lordship for a Habeas Corpus, etc. and it was granted him, and his Majesty being made acquainted therewith was very willing that he and all his people might have equal Justice, and when they desire that which seems to accord with the rules of the Law they should have it. But it fell out so that on the day when the writ should have been returned, the Warden of the Fleet did not return it as it was his duty to have done; he did forbear to do it upon a commandment, because it was conceived, there being five at that time to appear, the Court would have been straitened for want of time, but I imagined that these gentlemen who did desire the writ before should have again been earnest to renew them, which it seems they did not. This Habeas Corpus was sent out by special command, because these gentleman gave out in speeches, and in particular this gentleman That they did wonder why they should be hindered from trial, and what should be the reason their writs were not returned: nay his Majesty did tell me that they reported that the King did deny them the course of Justice, and therefore he commanded me to renew the writ, which I did, and think I may do it ex officio.  Sir Thomas Darnell. 
My Lords, I knew not until now but that I was committed by Mr. Attorneys warrant only, and thereupon I did desire a Habeas corpus at the Bar, which you were pleased to grant me, but now I understand that my restraint is by another means, and therefore I shall crave leave to have some time to speak to it. And as for the words alleged against me as if I had spoken them, I humbly. pray they may be no disparagement to my cause, for I do patiently refer myself to your grave censures, as being accused of a fact whereof I am no ways guilty.  Hid Chief Justice. 
You give a temperate and fair answer; and now you may perceive the upright and sincere proceed that have been in this business; you did no sooner petition to have Council assigned you, but you had it granted to you, for indeed we cannot deny it, and I know not but that any Council might have moved for you, without having been assigned for you, and yet have had no blame, for it is the King's pleasure his Laws should take place and be executed, and therefore do we sit here: when you made a motion of the Habeas corpus, that was likewise granted; whether the commitment be by the King or others, this Court is a place where the King doth sit in person, and we have power to examine it; and if it appears that any man hath injury or wrong by his imprisonment, we have power to deliver and discharge them, if otherwise, he is to be remanded by us to prison again: now it seems you are not ready to speak to this return, if you desire further day we ought to grant it.  Sir Thomas Darnell. 
My Lords, I humbly desire it.  Chief Justice. 
I know no cause why it should be denied.  Sergeant Bramston. 
My Lords, we shall desire the writ may not be filled, and that we may have a Copy of the return.  Attorney General. 
You cannot deny the filing of the writ, if you desire to have a Copy of the return.  Chief Justice. 
Although you be remanded at this time to prison, because you are not ready to speak to the return, we can adjorn you to a new day upon the Writ, and so you may prepare yourself; but if you will not have this filled, there must go out a new Habeas corpus, and thereupon must be another return.  Sergeant Bramston. 
My Lord, we desire some time that we may be advised whether we may proceed or not.  Lord Chief Justice Hide. 
Will you submit yourself to the King?  Sir Thomas Darnell. 
My Lord, I desire some time to advise of my proceed, I have moved many men, and offered to retain them of my Council, but they refuse me, and I can get none to be of council with me without your assistance.  Chief Justice. 
You shall have what Council assigned you, you will have or desire, for no offence will be taken against any man, that shall advise you in your proceed in Law.  Attorney General. 
I will pass my word, they that do advise you shall have no offence taken against them for it; and I shall give my consent to any way that you shall desire, either that it may be filled, or that it may not be filled; for if you desire Justice you shall have it, and the King will not deny it: but if it shall be conceived as it is rumoured, that there was a denial of Justice on the King's part, you must know that his Majesty is very tender of that. And for the Gent. now he is brought hither, I conceive, but yet I leave it to your Lordship's judgement, that the writ must be filled, and you must either deliver him or remand him, or else it will be an escape in the Warden of the Fleet.  Sir Thomas Darnell. 
I would not have it thought that I should speak any thing against my Prince, and for those words I do deny them, for upon my conscience they never came into my thought, perhaps you shall find that they have been spoken by some other, but not by any of us.  Chief Justice Hide. 
Sir, you have made a fair answer, and I doubt not but Mr. Attorney will make the like relation of it; you move for the not filing of the Writ, if you refuse to have it filled whereby it should not be of Record, you must have no Copy of it, but if you will have it filled, you shall have a Copy of it, and further time to speak to it, choose whether of them you will.  Sergeant Bramston. 
We desire to have the return read once more: and it was read as before.  Sergeant Bramston. 
So as the writ may not be filled we will desire no copy of the return.  Chief Justice Hide. 
Then the Gent. must return back again into the custody of the Warden of the Fleet, and therefore I ask you whether you desire to come hither again upon this Writ, or will you have a new one?  Sir Thomas Darnell. 
I desire your Lordship that I may have time to consider of it.  Chief Justice Hide. 
Then on God's name take your own time to think of it.   

Michaelis 3ᵒ Caroli Regis. Thursday, 22 November. Sir John Corbet Baronet, Sir Walter Earl, Sir John Henningham, Sir Edward Hampden, Knights, were brought to the Bar.  
Sergeant Bramston. 
MAy it please your Lordship to hear the return read, or shall I open it?  Chief Justice Hide. 
Let it be read.  
Mr. Keeling read the return, being the same as that of Sir Thomas Darnell.  
May it please your Lordship, I shall humbly move upon this return in the behalf of Sir John Henningham with whom I am of Council; it is his petition that he may be bailed from his imprisonment, it was but in vain for me to move that to a Court of Law which by Law cannot be granted: and therefore in that regard, that upon this return it will be questioned whether as this return is made, the Gent. may be bailed or not; I shall humbly offer up to your Lordship the case, and some reasons out of mine understanding, arising out of the return itself, to satisfy your Lordship that these Prisoners may, and as their case is, aught to be bailed by your Lordship.  
The exception that I take to this return, is as well to the matter and substance of the return, as to the manner and legal form thereof; the exceptions that I take to the matter is in several respects.  
That the return is too general, there is no sufficient cause shown in special or in general of the commitment of this Gentleman; and as it is insufficient for the cause, so also in the time of the first imprisonment, for howsoever here doth appear a time upon the second warrant from the Lords of the Council to detain him still in prison, yet by the return no time can appear when he was first imprisoned, though it be necessary it should be shown, and if that time appear not, there is no cause your Lordship should remand him, and consequently he is to be delivered.  
Touching the matter of the return, which is the cause of his imprisonment, it is expressed to be Per speciale mandatum domini Regis: This is too general and uncertain, for that it is not manifest what kind of command this was.  
Touching the legal form of the return, it is not as it ought to be fully and positively the return of the Keeper himself only, but it comes with a significavit or prout that he was committed Per speciale mandatum domini Regis, as appeareth by warrant from the Lords of the Council, not of the King himself, and that is not good in legal form.  
For the matter and substance of the return it is not good, because there ought to be a cause of that imprisonment.  
This writ is the means, and the only means that the Subject hath in this and such like case to obtain his liberty; there are other writs by which men are delivered from restraint, as that de homine replegiando, but extends not to this cause, for it is particularly excepted in the body of the writ de manucaptione et de cautione admittenda, but they lie in other cases; but the writ of Habeas corpus is the only means the subject hath to obtain his liberty, and the end of this writ is to return the cause of the imprisonment, that it may be examined in this Court, whether the parties ought to be discharged or not, but that cannot be done upon this return, for the cause of the imprisonment of this Gentleman at first is so far from appearing particularly by it, that there is no cause at all expressed in it.  
This writ requires that the cause of the imprisonment should be returned, and if the cause be not specially certified by it, yet should it at the last be shown in general, that it may appear to the Judges of the Court, and it must be expressed so fare as that it may appear to be none of those causes for which by the Law of the Kingdom the Subject ought not to be imprisoned, and it ought to be expressed that it was by presentment or indictment, and not upon petition or suggestion made to the King and Lords, which is against the statute made in the 25 Ed. 3. c. 4. 42 E. 3. c. 3.  
By the statute 25 Ed. 3. cap. 4. It is ordained and established, that no man from henceforth shall be taken by petition or suggestion made to the King or his Council, but by indictment or course of Law; and accordingly it was enacted, 42 E. ●. cap. 3. the title of which statute is, None shall be put to answer an accusation made to the King without presentment. Then my Lord, it being so, although the cause should not need to be expressed in such manner as that it may appear to be none of these causes mentioned in the statute, or else the Subject by this return loseth the benefit and advantage of these Laws, which be their birthright and inheritance; but in this return there is no cause at all appearing of the first commitment, and therefore it is plain that there is no cause for your Lordship to remand him: but there is cause you should deliver him, since the writ is to bring the body and the cause of the imprisonment before your Lordship.  
But it may be objected, that this writ of Habeas corpus doth not demand the cause of the first commitment, but of the detaining only; and so the writ is satisfied by the return, for though it show no cause of the first commitment, but of detaining only, yet it declareth a cause why the Gentleman is detained in prison; this is no answer, nor can give any satisfaction, for the reason why the cause is to be returned is for the Subjects liberty, that if it shall appear a good and sufficient cause to your Lordship, then to be remanded; if your Lordship think and find it insufficient, he is to be enlarged.  
This is the end of this writ, and this cannot appear to your Lordship, unless the time of the first commitment be expressed in the return. I know that in some cases the time is not material, as when the cause of the commitment is (and that so especially) returned, as that the time is not material, it is enough to show the cause without the time as after a conviction or trial had by Law; But when it is in this manner, that the time is the matter itself: for intent what cause you will of the commitment, yea though for the highest cause of treason, there is no doubt but that upon the return thereof the time of it must appear; for it being before trial and conviction had by Law, it is but an accusation, and he that is only accused, and the accusation ought by Law to be let to bail.  
But I beseech your Lordship to observe the consequence of this Cause. If the Law be, that upon this return this Gentleman should be remanded, I will not dispute whether or no, a man may be imprisoned before he be convicted according to the Law: but if this return shall be good, than his imprisonment shall not continue on for a time, but for ever; and the Subjects of this Kingdom may be restrained of their liberties perpetually, and by Law there can be no remedy for the Subject; and therefore this return cannot stand with the Laws of the Realm, or that of Magna Carta. Nor with the statute of 28 Ed. 3. ca 3. for if a man be not bailable upon this return, they cannot have the benefit of these two Laws, which are the inheritance of the Subject.  
If your Lordship shall think this to be a sufficient cause, than it goeth to a perpetual imprisonment of the Subject: for in all those causes which may concern the King's Subjects, and are appliable to all times and cases, we are not to reflect upon the present time and government, where justice and mercy floweth, but we are to look what may betid us in the time to come, hereafter.  
It must be agreed on all sides, that the time of the first commitment doth not appear in this return; but by a latter warrant from the Lords of the Council, there is a time indeed expressed for the continuing of him in prison, and that appears; but if this shall be a good cause to remand these Gentlemen to prison, they may lie there this seven years longer, and seven years after them, nay all the days of their lives. And if they sue out a writ of Habeas corpus, it is but making a new warrant, and they shall be remanded, and shall never have the advantage of the Laws which are the best inheritance of every Subject.  
And in Ed. 3. xfol. 36. the Laws are called the great inheritance of every Subject, and the inheritance of inheritances, without which inheritance we have no inheritance.  
These are the exceptions I desire to offer up to your Lordship, touching the return, for the insufficiency of the cause returned, and the defect of the time of the first commitment, which should have been expressed.  
I will not labour in objections till they be made against me, in regard the statute of Westminster primo is so frequent in every man's mouth, that at the Common Law those men that were committed in four cases were not replevisable (viz.) those that were taken for the death of a man, or the commandment of the King, or his Justices for the forest; I shall speak something to it, though I intent not to spend much time about it, for it toucheth not this Case we have in question.  
For that is concerning a Case of the Common Law, when men are taken by the King's writs, and not by word of mouth, and it shall be so expounded, as Master Stamford fol. 73. yet it is nothing to this Case, for if you will take the true meaning of that statute, it extends not at all to this writ of Habeas corpus; for the words are plain, they shall be replevisable by the Common writ, that is, by the writ de homine replegiando, directed to the Sheriff to deliver them if they were bailable, but this Case is above the Sheriff, and he is not to be Judge in it, whether the cause of the commitment be sufficient or not, as it appears in Fitz Herbert, de homine replegiando, and many other places, and not of the very words of the statute, this is clear, for thereby many other causes mentioned, as the death of a man, the commandment of the Justices, etc. In which the statute saith, men are not replevisable; but will a man conceive that the meaning is, that they shall not be bailed at all, but live in perpetual imprisonment? I think I shall not need to spend time, in that it is so plain, let me but make one instance.  
A man is taken de morte hominis, he is not bailable by writ, saith this statute, that is, by the common writ, there was a common writ for this Case, and that was called de odio & acia, as appeareth. Bracton Coron. 34. this is the writ intended by the statute, which is a common writ, and not a special writ; But my Lord as this writ de odio & acia was before this statute, so it was afterwards taken away by the statute of 28 Ed. 3. cap. 9 But before that statute, this writ did lie in the special Case as is shown in Brooks 9th Reports, Poulters Case, and the end of this writ was, that the Subject might not be too long detained in prison, as till the Justices of Eyre discharged them, so that the Law intended not that a man should suffer perpetual imprisonment, for they were very careful that men should not be kept too long in prison, which is also a Liberty of the Subject; and my Lord that this Court hath bailed upon a suspicion of high treason, I will offer it to your Lordship, when I shall show you precedents in these cases of a commitment by the Privy Council, or by the King himself: But before I offer these precedents unto your Lordship, of which there be many, I shall by your Lordship's favour speak a little to the next exception, and that is to the matter of the return, which I find to be per speciale mandatum domini Regis 8. and what is, that it is by this writ there may be sundry commands by the King, we find a special command often in our Books, as in the statute of Marlborough cap. 8. they were imprisoned. Rediss. shall not be delivered without the special command of our Lord the King, and so in Bracton, De Actionibus, the last chapter, where it appears that the King commandment for imprisonments is by special writ, so by writ again men are to be delivered, for in the case of Rediss ' or Post Rediss ', if it shall be removed by a Certiorare, is by a special writ to deliver parties: so that by this appears that by the King's commandment to imprison, and to deliver in those cases, is understood this writ, and so it may be in this case which we have heard.  
And this return here is a special Mandatum, it may be understood to be under some of the King's Seals, 42 Ass. and aught to be delivered, and will you make a difference between the King's command under his seal, and his command by word of mouth; what difference there is, I leave it to your Lordship's judgement, but if there be any, it is the more material that it should be expressed what manner of command it was, which doth not here appear; and therefore it may be the King's command by writ, or his command under his seal, or his command by word of mouth alone.  
And if of an higher nature, there is none of these commands, than the other, doubtless, it is that by writ, or under seal, for they are of record, and in these the person may be bailed, and why not in this? As to the legal form, admitting there were substances in the return, yet there wants legal form, for the writ of Habeas Corpus is the commandment of the King to the Keeper of the prisons, and thereupon they are to make return both of the body, and of the cause of the commitment, and that cause is to appear of them who are the immediate Officers. And if he doth it by signification from another, that return is defective in Law, and therefore this return cannot be good, for it must be from the Officer himself, and if the cause returned by him be good, it binds the prisoners.  
The warrant of the Lords was but a direction for him, he might have made his return to have been expressly by the King's commandment, there was warrant for it, I shall not need to put you cases of it, for it is not enough that he returns that he was certified that the commitment was by the King's command, but he must of himself return this fact as it was done. And now my Lord I shall offer to your Lordship precedents of divers kinds, upon commitments by the Lords of the Privy Council, upon commitments by the special command of the King, and upon commitments both by the King and the Lords together. And howsoever I conceive, which I submit to your Lordship, that our case will not stand upon precedents, but upon the fundamental Laws and Statutes of this Realm, and though the precedents look the one way or the other, they are to be brought back unto the Laws by which the Kingdom is governed. In the first of Henry the eighth, Rot. Parl. 9 one Harison was committed to the marshalsea by the command of the King, and being removed by Habeas Corpus into the Court, the cause returned was, that he was committed per mandatum Domini Regis, and he was bailed.  
In the fortieth of Elizabeth, Thomas Wendon was committed to the Gatehouse by the commandment of the Queen, and Lords of the Council, and being removed by an Habeas Corpus upon the general return, and he was bailed.  
In 8 Jacobi, one Caesar was committed by the King's commandment, and this being returned upon his Habeas Corpus, upon the examination of this case it doth appear that it was overruled, that the return should be amended, or else the prisoner should be delivered.  
The precedents concerning the commitment by the Lords of the Council, are in effect the same with these, where the commitment is, by the reason why the cause of the commitment should not be shown, holds in both cases, and that is the necessity of suit, and therefore Master Stamford makes the command of the King, and that of the Lords of the Privy Council, to be both as one; and to this purpose, if they speak, he speaks, and if he speaks, they speak.  
The precedents that we can show you, how the Subject hath been delivered upon commitment by the Lords of the Council, as in the time of Henry the eight, as in the times of Queen Elizabeth, Queen Marry, are infinite: as in the ninth of Elizabeth; Thomas Laurence was committed to the Tower by the Lords of the Council, and bailed upon an Habeas Corpus.  
In the 43 of Elizabeth, calvin's case.  
In the third of Elizabeth, Vernons case.  
These were committed for high treason, and yet bailed, for in all these cases there must be a conviction in due time, or a deliverance by Law.  
There be divers other precedents that might be shown to your Lordship. In 12 jacobi, Miles Renards. In 12 Jacobi, Rot. 155. Richard Beckwiths case. In 4 jacobi, Sir Thomas Monson was committed for treason to the Tower of London, and afterwards was brought hither, and bailed, and since our case stands upon this return, and yet there is no sufficient cause in Law expressed in the return of the detaining this Gentleman; and since these precedents do warrant our proceed, my humble suit unto this Court is, that the Gentleman Sir john Henningham, who hath petitioned his Majesty, that he may have the benefit of the Law, and his Majesty hath signified it, It is his pleasure that justice according to the Law should be administered at all times in general to all his Subjects, and particularly to these Gentlemen, which is their birthright: My humble suit to your Lordship is, that these Gentlemen may have the benefit of that Law, and be delivered from their imprisonment.   

Master Noye his Argument, of Council with Sir Walter Earl at that time.  
May it please your Lordship, I am of Council with Sir Walter Earl, one of the prisoners at the Bar; the return of this writ is as those that have been before, they are much of one tenor; and as you have heard the tenor of that, so this Gent. coming hither by an Habeas Corpus, I will by your Lordship's favour read the writ.  
Carolus Dei Gratia etc. johanni Lylo Milit' Guardian' Prison' nostrae de le Fleet Salut', Praecipimus tibi quod corpus Walteri Earl Milit' in prison' nostra sub custodia tua detent' ut dicit una cum causa detentionis suae quocunque nomine predict ' Walter' censeat in eadem Habeas Corpus ad subjiciendum & recipiendum ea quae curia nostra de eo ad tunc & ibidem ordin' conting ' in hac parte & haec nullatenus omit' periculo incumbent' & habeas tibi hoc breve, Test ' Hyde, apud Westminster quarto die Novembris, Anno 8.  
Executio istius brevis patet in quadam schedula huic brevi annexat '  

Prisonum Regis de le Fleet.  Respons. Johan' Liloe Guardian' Prison' de le Fleet.  
Ego johannes Lyloe Mil' Guardian' Prison' domini Regis de le Fleet, Serenissimo Domino Regi, apud Westminster ' 8. Post receptionem hujus brevis quod in hac schedula est mentionat', Certifico quod Walter Earl miles, in eodem brevium nominat' detentus est in Prisona de le Fleet sub custodia mea praedict' per speciale mandatum domini Regis mihi significatum per Warrantum duorum & aliorum de Privato Concilio per Honorabilissimi dicti Domini Regis, cujus quidem tenor sequitur in haec verba.  
Whereas Sir Walter Earl Knight, was heretofore committed to your custody, these are to will and require you still to detain him, letting you know, that both his first commitment, and this direction for the continuance of him in prison, were and are by his Majesty's special commandment, from White Hall, 7 Novembris, 1627.  


Thomas Coventree C. S.  
Henry Manchester.  
Thomas Suffolk.  
Bridgewater.  
Kellie.  
R. Duneln '.  
Thomas Edmunds.  
John Cook.  
Marlebrugh.  
Pembroke.  
Salisbury.  
Totnes.  
Grandisson.  
Guliel' Bath & Wells.  
Robert Nanton.  
Richard Weston.  
Humphrey Mayes.    
To the Guardian of the Fleet or his Deputy.  
Et haec est causa detentionis predict ' Walteri Earl sub custodia mea in Prison' praedict'. Attamen corpus ejusdem Walteri coram Domino Rege ad diem & locum praedictum, post receptionem brevis praedict' parat' habeo prout istud breve in se exiget & requiret.  
Respon ' Johan' Liloe milit' Guardian Prison de le Fleet.  
My Lord, the first Habeas corpus bears date the 4 of November, then there is an Alias habeas bears Teste after that, and the tenor thereof is a command to the Warden of the Fleet, quod habeas corpus Walteri Earl coram nobis ad subjiciendum & recipiendum ea quae curia nostra de eo etc. ordin' conting. And the Warden of the Fleet he certifies as your Lordship have heard; May it please your Lordship, I desire as before was desired for the other Gentlemen, that Sir Walter Earl may be also bailed, if there be no other cause of his imprisonment: for if there were a cause certified, and that cause were not sufficient to detain him still in prison, your Lordship would bail him, and if a man should be in worse case, when there is no cause certified at all, that was very hard.  
The writ is, that he should bring the prisoner coram nobis before the King, the end of that is ad subjiciendum & recipiendum; now I conceive that though there be a signification of the King's pleasure to have this Gentleman imprisoned, yet when the King grants this writ to bring the prisoner hither, ad subjiciendum & recipiendum, his pleasure likewise is to have the prisoner let go, if by Law he be not chargeable, or otherwise to detain him still in prison, if the case so require it.  
I will put your Lordship in mind of a case, and it was Pasch. 9 Ed. 3. M. 3. I will cite by the placita, because my Book is not paged as other Books are, it is in the case of a Cessavit.  
In that case there were two things considerable, the one that there was a signification of the King's pleasure past, and that determined with him: the other, that though there was a signification of the King's pleasure, before which was, yet there comes after that a writ, and that was another signification of the King's pleasure, that the prisoner shall be brought hither ad subjiciendum, to submit himself to punishment, if he have deserved it, or ad recipiendum, to receive his enlargement, and be delivered, if there be no cause of his imprisonment.  
And if upon an Habeas corpus a cause of commitment be certified, that cause is to be tried here before your Lordship. But if no cause be shown, than the proceed must be ut curia nostra ad mar' contigerit, the Court must do that which stands with Law and Justice, and that is to deliver him.  
My Lord, I shall be bold to move one word more touching this return: I conceive that every Officer to a Court of Justice must make his return of his own act, or of the act of another, and not what he is certified of by another.  
But in this case the Warden of the Fleet doth not certify himself, of himself, that this Gentleman was commanded to him by the King, but that he was certified by the Lords of the Council, that it was the King's pleasure that he should detain him. But in our case the Warden of the Fleet must certify the immediate cause, and not the cause of the cause, as it doth by this return, Detentus est sub custodia mea per speciale mandatum Domini Regis mihi significatum per Warrantum duorum de Privato Concilio; that is not the use in Law, but he ought to return the primary cause, and not the subsequent cause, as in 32 Edw. 3. return, Rex vicecom ' 87. in a writ De homine replegiando, against an Abbot, the Sheriff returns, that he hath sent to the Bailiff of the Abbot, and he answered him that the party was the Abbot's villain, and so he cannot deliver him, that is held an insufficient return, and a new Alias was granted, but if the Sheriff had returned, that the Abbot did certify him so, it had been good, but he must not return what is certified him by another.  
In one of the precedents that hath been noted, as that of Parker, 22 Hen. 8. there the Guardian of the prison certifies that Parker detentus est sub custodia mea per mandatum Domini Regis mihi nunciatum per Robertum Peck; now our case is by the Nunciation of many, but in Law majus & minus non variant in spetione, the certification of one and of many is of the same effect, although in moral understanding there may be a difference.  
Trin. 2 Ed. 3. Rot. 46. in this Court in 21 Ed. 3. in the printed Book there is a piece of it: The Abbot of Burey brings a prohibition out of this Court, the Bishop of Norwich pleadeth in Bar of that Quod mihi testificatum, quod continetur in Archivis, that he is excommunicated; there were two exceptions taken to this case in this precedent, and they are both in one case, the first was, that no case appeareth, why he was excommunicated: there may be causes why he should be excommunicated, and then he should be barred, and there may be causes why the excommunication should not bar him: for it may be the excommunication was for bringing the action, which was the King's writ, and therefore because there was no cause of the excommunication returned, it was ruled that it was not good. The other reason is that upon the Roll, which is mihi testificatum.  
Now every man when he will make a Certificate to the Court, Proprium factum suum non alterius significare debet, he must inform the Court of the immediate act done, and not that such things are told him, or that such things are signified unto him, but that was not done in this case, and therefore it was held insufficient: and so in this case of ours, I conceive the return is insufficient in the form, there is another cause my Lord, for which I conceive this return is not good.  
But first I will be bold to inform your Lordship touching the Statute of Magna Charta 29. Nullus liber homo capiatur vel imprisonetur etc. nec super eum mittimus nisi per legale judicium parium suorum vel per legem terrae.  
That in this Statute these words in Carcerem are omitted out of the printed Books: for it should be nec eum in Carcerem mittimus. For these words per legem terrae; what Lex terrae should be, I will not take upon me to expound, otherwise than I find them to be expounded by Acts of Parliament; and this is that they are understood to be the process of the Law, sometimes by writ, sometimes by attachment of the person: but whether speciale mandatum Domini Regis be intended by that or no, I leave it to your Lordship's exposition upon two petitions of the Commons, and answer of the King, in 36 Ed. 3. nᵒ 9 and nᵒ 20.  
In the first of them the Commons complain that the great Charter, the Charter of the Forest, and other Statutes were broken, and they desire that for the good of himself and of his people, they might be kept and put in execution, and that they might not be infringed by making an arrest by special command or otherwise: and the answer was, that the assent of the Lords established and ordained, that the said Charter and other Statutes should be put in execution according to the petition, and that is without any disturbance by arrest by special command or otherwise, for it was granted, as it was petitioned.  
In the same year, for they were very careful of this matter, and it was necessary it should be so, for it was then an usual thing to take men by writs quibusdam de causis, and many of these words caused many Acts of Parliament: and it may be some of these writs may be shown, and I say in the same year they complained that men were imprisoned by special command, and without indictment or other legal course of Law, and they desired that thing may not be done upon men by special command against the great Charter.  
The King makes answer that he is well pleased therewith: that was the first answer; and for the future he hath added farther, if any man be grieved let him complain, and right shall be done unto him. This my Lord is an explanation of the great Charter, as also the Statute of 37 Ed. 3. ch. 18. is a Commentary upon it, that men should not be committed upon suggestion made to the King, without due proofs of Law against them, and so it is enacted twice in one year.  
We find more printed Books, as in Henry the sixth, Mius de fiacts, Fitz. 182. which is a strong case: under favour in an action of Trespass for cutting down trees: the defendant saith, that the place where the trees are cut, is parcel of the Manor of B, whereof the King is seized in fee, and that the King did command him to cut them: and the opinion of the Court was, that this was no good plea, without showing the specialty of the command, and they said, if the King command me to arrest a man, and I arrest him, he shall have an action of false imprisonment against me, although it were done in the King's presence.  
In 1 joh. cap. 7. fol. 46. it is in print, and there we leave it.  
Hussey Chief Justice saith, that Sir john Markham told King Edward the fourth, that he could not arrest a man upon suspicion of felony or treason, as any of his Subjects might, because if he should wrong a man by such arrest, the parties could have no remedy against him, if any man shall stand upon it; here is a signification of the King's pleasure, not to have the cause of the commitment examined, he hath here another signification of his pleasure by writ, whereby the party is brought hither ad subjiciendum & recipiendum, that he hath made your Lordship Judge of that, that should be objected against this Gentleman, and either to punish him, or to deliver him, and if here be no cause shown, it is to be intended that the party is to be delivered, and that it is the King's pleasure it should be so, and the writ is a sufficient warrant for the doing of it, there being no cause shown of the imprisonment; and now my Lord, I will speak a word to the writ of De homine replegiando, and no other writ, for that was the common writ, and the four causes expressed in that Statute, to wit, the death of a man, the command of the King, or his Justices, or Forest, were excepted in that writ before that Statute made, as appears Bracton 133. so that the writ was at the Common Law before that Statute.  
And it appears by our Books, that if a man be brought hither by an Habeas corpus, though he were imprisoned De morte hominis, as in the 21 of Edward the fourth, 7. Winckfield was bailed here, this Court bailed him, for he was brought hither ad subjiciendum & recipiendum, and not to he in prison God knows how long; and if the Statute should be expounded otherwise, there were no bailing men outlawed or breakers of prisons, for they are not within this Statute, and yet this Court doth it at pleasure.  
But plainly by the Statute itself, it appears that it meant only to the common writ, for the preamble recites, that the Sheriffs and other, have taken and kept in prison persons detected of felony, and let out to plevin such as were not reprisable to grieve the one party, and to the gain of the other; and forasmuch as before this time it was not determined what prisoners were reprisable, which not, but only in certain cases were expressed, therefore it is ordained, etc.  
Now this is no more but for direction of the keepers of the prisons, for it leaves the matter to the discretion of the Judges, whether bailable or no, not of the Judges, for when the Statute hath declared who are repleviable, who are not, as men outlawed have abjured the Realm: Proves such as be taken in the manner, breakers of prisons, burners of houses, makers of false money, counterfeiting of the King's Seal, and the like, it is then ordained, that if the Sheriff or any other, let any go at large by surety, that is not reprisable, if he be Sheriff, Constable, or any other that hath the keeping of prisons, and thereof be attainted, he shall lose his office and fee for ever, so that it extends to the common Gaolers and keepers of prisons, to direct them in what cases they shall let men to bail, and in what cases not: & that they shall not be Judges to whom to let to replevin, and whom to keep in prison, but it extends not to the Judges, for if the makers of the Statute had meant them in it, they should have put a pain upon them also.  
So then, I conclude upon these under your Lordship's favour, that as this case is, there should have been a cause of the commitment expressed, for these Gentlemen are brought hither by writ ad subjiciendum, if they be charged, and ad recipiendum if they be not charged, and therefore in regard there is no charge against them whereupon they should be detained in prison any longer; we desire that they may be bailed or discharged by your Lordship.   

Master Seldens Argument at the King's Bench Bar the same day.  
My Lords, I am of Council with Sir Edmond Hampden, his case is the same with the other two Gentlemen, I cannot hope to say much after that that hath been said, yet if it shall please your Lordship, I shall remember you of so much as is befallen my lot: Sir Edmond Hampden is brought hither by a writ of Habeas corpus, and the keeper of the Gatehouse hath returned upon the writ, that Sir Edmond Hampden is detained in prison per speciale mandatum domini Regis, mihi significatum per Warr antum duorum Privati Concilii dicti domini Regis, and then he recites the warrants of the Lords of the Council, which is, that they do will and require him to detain this Gentleman still in prison, letting him know that his first imprisonment, etc.  
May it please your Lordship, I shall humbly move you that this Gentleman may also be bailed, for under favour my Lord, there is no cause in the return, why he should be any farther imprisoned and restrained of his liberty.  
My Lord, I shall say something to the form of the writ, and of the return, but very little to them both, because there is a very little left for me to say.  
My Lord, to the form, I say it expresseth nothing of the first caption, and therefore it is insufficient, I will add one reason as hath been said: the Habeas corpus hath only these words, quod habeas corpus ejus una cum causa detentionis & non captionis: But my Lord, because in all imprisonment, there is a cause of caption and detention, the caption is to be answered aswell as the detention.  
I have seen many writs of this nature, and on them the caption is returned, that they might see the time of the caption, and thereby know whether the party should be delivered or no, and that in regard of the length of his imprisonment.  
The next exception I took to the form is, that there is much incertainty in it, so that no man can tell when the writ came to the keeper of the prison, whether before the return or after, for it appears not when the King's command was, for the commitment or the signification of the Council came to him: It is true, that it appears that the warrant was dated the seventh of November, but when it came to the keeper of the prison that appears not at all; and therefore as for want of mentioning the same time of the caption, so for not expressing the same time when this warrant came, I think the return is faulty in form and void.  
And for apparent contradiction also, the return is insufficient, for in that part of the return which is before the warrant, it is said quod detentus est per speciale mandatum domini Regis, the warrant of the Lords of the Council; the very syllables of that warrant are, that the Lords of the Council do will and require him still to detain him, which is contrary to the first part of the return.  
Besides my Lord, the Lords themselves say in another place and passage of the warrant, that the King commanded them to commit him, and so it is their commitment, so that upon the whole matter there appears to be a clear contradiction in the return, and there being a contradiction in the return, it is void.  
Now my Lord, I will speak a word or two to the matter of the return, and that is touching the imprisonment, per speciale mandatum domini Regis, by the Lords of the Council without any cause expressed, and admitting of any or either of both of these to be the return: I think that by the constant and settled Laws of this kingdom, without which we have nothing, no man can be justly imprisoned by either of them, without a cause of the commitment expressed in the return. My Lord, in both the last Arguments the statutes have been mentioned and fully expressed, yet I will add a little to that which hath been said.  
The statute of Magna Carta cap. 29. that statute if it were fully executed as it ought to be, every man would enjoy his liberty better than he doth.  
The Law saith expressly, no Freeman shall be imprisoned without due process of the Law; out of the very body of this Act of Parliament, besides the explanation of other statutes, it appears, Nullus liber homo capiatur vel imprisonetur nisi per legem terrae. My Lord, I know these words legem terrae, do leave the question where it was if the interpretation of the Statute were not. But I think under your Lordship's favour, there it must be intended by due course of Law to be either by presentment or by indictment.  
My Lords, if the meaning of these words Per legem terrae were but as we use to say, according to the laws, which leaves the matter very uncertain: and per speciale mandatum, etc. be within the meaning of these words, according to the law, than this Act had done nothing. The Act is, No Freeman shall be imprisoned but by the law of the land; if you will understand these words, per legem terrae, in the first sense, this statute shall extend to Villains as well as to Freemen, for if I imprison another man, Villain, the Villain may have an action of false imprisonment. But the Lords and the King (for then they both had Villains) might imprison them, and the Villain could have no remedy; but these words in the statute per legem terrae, were to the Freeman, which ought not to be imprisoned, but by due process of law, and unless the interpretation shall be this, the Freeman shall have no privilege above the Villain.  
So that I conceive my Lord, these words per legem terrae, must be here so interpreted, as in 42 Eliz. the Bill is worth the observing, it reciteth that divers persons without any writ or presentment were cast into prison, etc. that it might be enacted that it should not be so done hereafter; the answer there is, that this is an Article of the great Charter, this should be granted, so that it seems the statute is not taken to be an explanation of that of Magna Charta, but the very words of the statute of Magna Charta.  
I will conclude with a little observation upon these words, nec super eum mittimus, which words of themselves signify not so much, a man cannot find any fit sense for them.  
But my Lord, in the seventh year of King john, there was a great Charter by which this statute in the ninth of Henry the third, whereby we are now regulated, was framed, and there the words are, nec eum in Carcerem mittimus, we will not commit him to prison; that is, the King himself will not: and to justify this, there is a story of that time in Matthew Paris, and in that Book this Charter of King john is set down at large, which Book is very authentic, and there it is entered, and in the ninth of Henry the third, he saith, that the statute was renewed in the same words with the Charter of King john; and my Lord, he might know it better than others, for he was the King's Chronologer in those times: and therefore my Lord, since there be so many reasons, and so many precedents, and so many statutes, which declare that no Freeman whatsoever ought to be imprisoned, but according to the laws of the land; and that the liberty of the subject is the highest inheritance that he hath; my humble request is, that according to the ancient laws and privileges of this Realm, this Gentleman my Client may be be bailed.   

The Argument of Mr Calthrop at the King's Bench Bar, 22 Novembris, Mich. 3. Caroli Regis.  
Sir john Corbet being brought to the King's Bench Bar with Sir Edmond Hampden, Sir Walter Earl, and Sir john Henningham, who were also brought thither by several writs of Habeas corpus, with the same return, I being assigned by the Court of King's Bench, upon a petition delivered to be of Council with Sir john Corbet, did move that Sir john Corbet might be discharged of his imprisonment, and put in bail, for I did conceive that the return of this Habeas corpus was insufficient, both in the matter of the return, and in the manner of the return, and so there ought not to be a longer detaining of Sir john Corbet in prison: for as unto the manner of the return it is not laid down precisely that Sir john Corbet is detained in prison by the special commandment of the King, signified by the warrant of the Lords of the Council, the which is not a direct affirmation that he is detained by the special command of the King, but that the Lords of the Council by their warrant have signified unto him that he was committed and still detained by the special command of the King.  
And howsoever the Lords of the Council had signified that he was detained by the commandment of the King, yet it may be he was not detained by the commandment of the King, for their signification of the same by warrant may be untrue, and the warrant of the Lords of the Council that is returned in haec verba, importeth that the keeper of the Gatehouse rather took upon him to return, that was signified unto him by the warrant of the Lords of the Council, that Sir john Corbet was committed and detained by the special commandment of the King, because if the keeper had taken upon him to affirm it upon his return, than needed he not to have returned the warrants of the Lords of the Council, and the warrant itself showeth that he had only his information from the Lords of the Council; for their warrant is to let the keeper know, that both the first commitment, and this direction for the continuing of him in prison, were and are by his Majesty's special commandment, and I do not see as this return is made, that an accord upon the case can lie upon the keeper of the Gatehouse, if Sir john Corbet was not committed nor detained by the special commandment of the King, so long as the warrant of the Lords of the Council be returned as it was made, because he doth return the same as the Significavit of the Lords by their warrant, Register 65. the writ of Excommunication Capiend ' goeth, Rex vicecom' Lincoln' S. significavit nob' venerabilis Pater Henricus Lincolniensis Episcopus per Literas suas Patentes quod R. suus Parochial' propter suam manifestam contumac' authoritate ipsius Episc. ordin' excom' est nec se vult per censuram Ecclesiasticam justiciar' etc. tibi praecipimus quod praedict' R. per corpus suum secundum consuetud' Angliae justic' etc. and yet no man will say that there is an information of the King, that R. is excommunicated, but only that the Bishop of Lincoln had signified unto him that R. was excommunicated: and in Fitz. Nat. Br. 663. and Register 65. it appears that the form of the writ of Excommunication deliberand ' is, Rex Vicecom' London Salut'. Cum Thom' lay allutar' London qui nuper ad denuntiat. venerabil' Patris Archiep' Eborum pro contumaciis suis ratione contractus in civitate nostra Eborum habit' ut dicebat. tanquam excom' & claves Ecclesiae contemnent' per corp' suum secundum confuetud' Angliae per te justic' praecepimus, donec etc. esset satisfact' eid' Archiepiscop●, ●…d satisfaciendum deo et sanctae ecclesiae, sufficientem exposuit cautionem, per quod eidem Archiepiscopus offic. Archdiac. London. mutuae vicissitudin' obtentu scripsit ut ipsum absolvat ab excom' senten' memorata sicut idem Archiepiscopus per Literas suas Patentes nob' significavit, Tibi praecipimus quod praed. Thom' come tibi constare poterit ipsum ab excom' praedict' per praedict' Official' absolvi à Prison' qua detinetur si ea occasione & non alia detineat' in eadem sine dilatione deliberari fac'. And yet it cannot be said, that although the King recited in his writ that the Archbishop had signified unto him that he had written unto the Official of the Archdeacon, that the King said that the Archbishop had written, for he doth not affirm so much precisely, but only, referreth himself unto the Certificate of the Archbishop.  
Plowden 122. Buckley and Rivers case, it is put that if a man will bring an action of debt upon an obligation, and declare that it appears by the obligation that the defendant stood bound to the plaintiff in twenty pounds, the which he hath not paid, this declaration is not good, insomuch as it is not alleged by matter in fact, that he was bound unto him in twenty pound, but the deed is alleged by recital only, 21 Ed. 4. 43.  
Plowden come 126. & 143. Browning and Beestons' case.  
The Abbot of Waltham being appointed collector of a Disme granted unto the King in discharge of himself, in the Exchequer, pleadeth, Quo inter recordat' Ter. Pasc. anno 15. domini Regis Edvardi 1. inter alia continetur quod R. 2. had granted unto the predecessors of the said Abbot, that he nor any of his successors should be any collectors of any dimes to be granted afterwards, and it was adjudged that this plea was ill.  
For the saying [it was contained among the Records,] it is no precise affirmation that the King had granted to his predecessors, that they should be discharged of the collecting any dimes, but it is only an allegation by way of recital, and not by precise affirmation, the plea may not be good.  
2 & 3 Mar. Dier 117. & 118. the plaintiffs reply in bar of all pleadeth, that john Abbot of W. was seized of his lands in right of his Church, and so seized by the assent of the tenant by indenture, 14 Hen. 4. testat' quod praedict' Abbat' & convent' demiserunt & tradiderunt, unto the plaintiff, and ruled, that this form of pleading was ill, insomuch as it was not alleged by precise affirmation, quod demiserunt, sed indentura testatur, quod demiserunt; which is not sufficient, insomuch as it is only an allegation by way of recital, that the Indenture doth witness, and the same Indenture may witness so much, and yet not be a demise.  
And if in pleading there must be direct affirmation of the matter alleged, then à fortiore in a return, which must be more precise then in pleading, and so by all the cases I have formerly touched, it appeareth that this return is no express affirmation of the keeper of the Gatehouse, that Sir john Corbet is detained in prison by the special commandment of the King, but only an affirmation of the Lords of the Council, who had signified unto him that his detainment in prison was by special command of the King.  
The return which ought to be certain, and punctual, and affirmative, and not by way of information out of another man's mouth, may not be good, as appeareth by the several books of our Law.  
23 Ed. 3. Rex vic' 181. upon a Homine replegiando, against the Abbot of C. the Sheriff returneth that he had sent to the Bailiff of the Abbot, that answered him that he was the villain of the Abbot, by which he might not make deliverance, and a Sicut alias was awarded, for this return was insufficient, insomuch that he had returned the answer of the Bailiff of the Abbot, where he ought to have returned the answer of the Abbot himself out of his own mouth.  
Trin. 22 Ed. 2. Rot. 46. parent. vill' & Burg Evesque de Norwich, repl' 68 Nat. Br. Case 34. Fitz. Nat. Br. 65. & 34 Ed. 3. Excom ' 29. the case appeareth to be such in a trespass, the defendant pleadeth, the plaintiff is excommunicate, and showeth forth the letter of the Bishop of Lincoln, witnessing that for divers contumacies, etc. and because he had certified no excommunic' done by himself, but by another, the letter of Excommunication was annulled, for the Bishop ought to have certified his own act, and not the act of another.  
Hillarii 21 Hen. 8. Rot. 37. it appeareth by the return of an Habeas corpus, that john Parker was committed to prison for security of the peace, and for suspicion of felony, as per mandatum domini Regis nunciatum, per Robertum Perk de Clifford's Inn, and upon his return john Parker was bailed, for the return Commiss. fuit per speciale mandatum domini Regis, nunciatum per Robertum Perk was not good, insomuch that it was not a direct return that he was committed per mandatum domini Regis.  
And for the first point, I conclude that this return is insufficient in form, insomuch that it doth not make a precise and direct return, that he was committed and detained by the special command of the King, but only as he was signified by the warrant of the Lords of the Council, which will not serve the turn; and upon the book of 9 Hen. 6. 44. the return of the cause of a man's imprisonment ought to be precise and direct upon the Habeas corpus, insomuch as thereby to be able to judge of the cause, whether it be sufficient or not for there may not any doubt be taken to the return, be it true or false, but the Court is to accept the same as true: and if it be false, the party must take his remedy by action upon the case.  
And as concerning the matter of the return, it will rest upon these parts.  
First, whether the return be that he is detained in prison by special commandment of our Lord the King, be good or not, without showing the nature of the commandment, or the cause whereupon the commitment is grounded in the return.  
The second is, whether the time of the first commitment by the commandment of the King, not appearing to the Court, is sufficient to detain him in prison.  
Thirdly, whether the imprisonment of the subjects without cause shown, but only by the commandment of the King, be warrantable by the laws and statutes of this Realm.  
As unto the first part, I find by the books of our law, that commandments of the King are of several natures, by some of which the imprisonment of a man's body is utterly unlawful: and by others of them, although the imprisonment may be lawful, yet the continuance of him without bail or mainprize, will be utterly unlawful.  
There is a verbal command of the King which is by word of mouth of the Kings only, and such commandment by the King by the books of our law will not be sufficient either to imprison a man or to continue him in prison, 16. 6. Monstrans de faict si, upon an action of trespass brought for cutting of trees, the defendant pleadeth that the place where he cut them is parcel of the Manor of D, whereof the King is seized in fee, and the King commanded him to cut the trees, and the opinion of the Court there is, that the plea in bar was ill, because he did not show any special commandment of the King, and there it is agreed by the whole Court, that if the King commandeth one to arrest another, and the party commanded did arrest the other, an action of trespass or false imprisonment is maintainable against the party that arrested him, although it were done in the presence of the King, 39 H. 6. 17. where one justifieth the seizure of the goods of a person that is outlawed by the commandment of the King, such a party being no Officer may not in an action brought against him have any aid of the King; for such a commandment given to one that is not an Officer, will not any ways avail him that is to justify himself by the return of that commandment.  
37. Hen. 6. 10. If the King give me a thing and I take the same by his commandment by word of mouth, it is not justified by law, nothing may pass without matter of Record.  
10 Hen. 7. 7. & 17. 18. it is agreed that Justices may command one to arrest another that is in their view or presence, but not one that is out of their view or presence.  
And Keble 10 Hen. 7. 13. said, that where one is arrested by a parroll command in their view or presence, it is fitting that a record may be made of it, insomuch that without such a record there can hardly be a justification in another Term.  
Secondly, there is a commandment of the King by his Commission, which according unto calvin's case in the seventh Report, it is called by him breve mandatum non remediabile, and by virtue of such a commandment the King may neither seize the goods of his subject, nor imprison his body, as it is resolved in 42 Ass. pl. 5. where it is agreed by all the Justices that a Commission to take a man's goods, or imprison his body without indictment or suit of the party, or other due process, is against the Law.  
Thirdly, there is a commandment of the King which is grounded upon a suggestion made to the King or to his Council; and if a man be committed to prison by such a suggestion by commandment of the King, it is unlawful, and not warranted by the law of the Realm.  
The 25 of Edward the third, cap. 4. de Provisoribus, whereas it is contained in the great Charter of the Franchises of England, that none shall be imprisoned or arrested of his  or of his Franchises, nor of his free customs but by the law of the land.  
It is awarded, consented and established, that from henceforth none shall be taken by petition or suggestion made to our Sovereign Lord the King, or to his Council, until it be by indictment or presentment of his good and lawful neighbours, where such deeds are done in due manner, or by process made by writ original at the Common law, nor that none shall be arrested of his Franchises, nor of his freehold, unless he be duly brought in, and answer, and forejudged of the same by way of law, and if any thing be done against the same, it shall be redressed and holden for nought.  
37 Ed. 3. cap. 10. although it be contained in the great Charter, that no man be taken or imprisoned, or put out of his freehold, without due process of the law: nevertheless divers persons make false suggestions to the King himself, as well for malice as otherwise, whereof the King is often grieved, and divers of the Realm put in great damages contrary to the form of the same Statute.  
Wherefore it is ordained, that all they that make such suggestions be sent with their suggestions to the Chancellor or Treasurer, and they and every of them find sureties to pursue their suggestions, and endure the same pain that the other should have had; if in case that his suggestion be found untrue, and that then process of the law be made against them without being taken or imprisoned against the form of the same Charter, and other statutes.  
So that it appears by these several statutes, that such commandments of the King as are grounded upon suggestion, either made to himself or to his Council, for the imprisonment of a man, are against the law.  
Fourthly, I find that there is a commandment of the King which is made under his hand, with his signet, for in the fourth and the fifth of Philip and Mary, Dier 162. where the statute of ● Ric. 2. cap. 11. restraineth the Warden of the Fleet for letting any man at large that is in upon judgement at the suit of any man, except it be by writ or other commandment of the King; It was doubted, whether the Queen by letter under her hand and privy signet, doth give commandment to the Warden of the Fleet to suffer a man that is there in execution to go about his business, or the affairs of the Queen: whether this be a warrantable command or not within the Statute: and the Law hath always been conceived upon that book, that such a commandment is not warrantable by Law, and if such a command will not serve the turn, to give unto a man his liberty, which the law favoureth, and had the countenance of an Act of Parliament for the doing of it, than I conceive it should be a more strong case, the King should not have power by his commandment to imprison a man without due process of the Law, and restrain him of his liberty when there had been so many Acts of Parliament made for the liberty of the subjects.  
Fifthly, I do find that there is the commandment of the King which is by his writ under the Great Seal, or the seal of the Court out of which it issueth, Regist. f. 69. & 70. in the writ de cautione admittenda, I find the words, mandatum Regis expounded to be breve Regis, for the writ goeth: Rex vic' Salutem. Cum nuper ad requisitionem S. de Isle Canonici Lincolne venerabilis Patris H. Lincoln. Episcopi ipso in remotis agente Vicarii general. per Literas suas Patentes nobis significantis Nicho. B. dict. Lincoln. Dioc. propter manifestam contumaciam Authoritate ipsius Episcopi Ordinar. excommunicate. esse nec si velle etc. vobis praeceperimus quod praefat. etc. satisfactum ex parte ipsius N. qui virtute mandati nostri praedict. per vos Capt. & in Prison. nostra de Newgate detent. existit, etc. nos nolentes quod praefat. N. per breve nostrum praedict. via praecludatur etc. pr●sequi possit in forma juris maxim. etc. integer esse debeat, vobis praecipimus quod scire etc. quod sit etc. quare praedict. N. à Prisona praedict. deliberari non debeat. Rex justiciar. suis de Banco salut. Cum nos nuper ad significationem S. de Isle etc. usque ibi excommunicate. extitisse nec se velle etc. esset satisfactum ex parte ipsius N. virtute manditi nostri praed. captain. & in Prisona nostra de Newgate tuncdetenti, etc. et nolentes eo praetextu praefato N. per breve nostrum praed. via praecludat. quo minus appellac. suae negotium etc. processerat. & appellant. statut. etc. per breve nostrum praeceperimus praefat. vic. quod scire facerent. etc. vobis signific. & consult. & circumspect. in Placitis per breve praedict. coram vobis pendentibus procedere valeatis secundum legem & consuetudinem Regni nostri.  
Stamf. 72. 5 E. 3. c. 8. 1. E. 3. c. 9 saith, that every Capias in a personal action is a commandment of the King, for it is Praecipimus tibi quod capias etc. and yet the defendant as there it is said is replevisable by the Common law, 7 R. 20. a. calvin's case, saith that there are two kind of writs, viz. brevia mandatoria & remedi●lia, & brevia mandatoria & non remedialia: brevia mandatoria & remedialia, are writs of Right, Formedon etc. debts, trespasses, and shortly all writs real and personal, whereby the party wronged is to recover somewhat, and to be remedied for that wrong which is done unto him.  
Sixthly, I do find by our books of Law, and by the Register, that this special mandatum domini Regis, is expounded to be his writ, and that the Law taketh no notice of any other speciale mandatum, then by this writ; the which being so when the return is made, that he is imprisoned and detained in prison by the special commandment of the King, how can the Court adjudge upon this return, that Sir john Corbet ought to be kept in prison, and not to be bailed, when the nature of the special commandment is not set forth in the return, whereby it may appear unto the Court that he is not bailable. In Bracton, c. 12. 112. you shall see a writ reciting, Praecipimus tibi quod non implacites nec impl●citari permittas talem de libero tenemento suo in tali villa sine speciali praecepto nostro vel Capitalis Justiciar' nostri.  
And the reason of it there is given, quia nemo de libero tenemento sine brevi sive libello conventionali nisi gratis voluerit respondebit. So as the exception of special commandment by the very book, appeareth to be breve sive libellus conventionalis, Regist. 271. the writ of Manucaption goeth in this manner: Rex vic. Salut. Cum nuper assignaverimus dilectos et fideles nestros A. B & C. D. ad inquisitiones de forstallariis et transgressionibus contra formam statuti dudum apud Winton. editi in come. tuo faciend. et ad illos quos inde culpabiles invenirent. capiend. & in Prisona nostra salvo custod. faciend. donec aliud inde praecepissemus quod C. D. et E. pro hujusmodi forstallamentis & transgressionibus unde coram praefat. A. B. & C. indict. fuerint, capt. & in Prisona de L. detent. exist. à qua deliberari non possunt, sine mandato nostro speciali, Nos volentes eisdem C. D. & E. gratiaem in hac parte facere specialem, tibi praecipimus quod si praedict. C. D. et E. occasione praedict. et non alia in Prisona p●…dict. detineantur, et pro transgressionibus illis secundum legem & consuetudinem Regni nostri Angliae replegiabiles existunt etc. tunc impoes C. D. et E. à Prisona praedict. si ea occasione et non alia detineantur in eadem interim deliberari facias per manucapt. supradict. et habeas ibi tunc coram praefat. Justiciar. nomina manucapt. illorum et hoc breve.  
And the exposition of this speciale mandatum domini Regis, mentioned in the writ, is expounded to be breve domini Regis, & thereupon is this writ directed unto the Sheriff for the delivery of them.  
And so for the first branch of the first part: I conclude, that the special command of the King without showing the nature of the commandment of the Kings, is too general, and therefore insufficient; for he ought to have returned the nature of the commandment of the King, whereby the Court might have adjudged upon it, whether it were such a commandment that the imprisonment of Sir john Corbet be lawful or not, and whether it were such a commandment of the King, that although the imprisonment were lawful at the first, yet he might be bailed by Law.  
And as for the general return of speciale mandatum domini Regis, without showing the cause of the imprisonment either special or general, I hold that for that cause also the return is insufficient.  
First, in regard of the Habeas corpus, which is the commandment of the King only, made the 15 of November.  
According to the Teste of the writ commanding the keeper of the Gatehouse to have the body of Sir john Corbet, una cum causa detentionis et ad subjiciendum et recipiendum ea quae curia nostra de eo ad tunc ibid. ordinar. conting●… '. So as the commandment of the writ being to show the cause of his detaining in prison, the keeper of the Gatehouse doth not give a full answer unto the writ, unless the cause of the detainment in prison be returned, and the Court doth not know how to give their judgement upon him, either for his imprisonment, or for his discharge, according to the purport of the writ, when there is not a cause returned, and forasmuch as upon an excommengement certified, it hath been adjudged oftentimes that Certificates were insufficient where the cause of the commitment hath not been certified, that the Court might adjudge whether the Ecclesiastical Judges who pronounced the excommunication, had power over the original cause according to the book of 14 Hen. 4. 14. 8. Rep. 68 Trollops case, & 20 Ed. 3. Excommengement 9  
So upon an Habeas corpus in this Court, where a man hath been committed by the Chancellor of England, by the Council of England, Marches of Wales, Warden of the Stanneries, High Commission, Admiralty, Duchy, Court of Request, Commission of Sewers or Bankrupts, it hath several times been adjudged that the return was insufficient where the particular cause of imprisonment hath not been shown to the intent that it might appear that those that committed him had jurisdiction over the cause, otherwise he ought to be discharged by the Law: & I spare to recite particular causes in every kind of these, because there are so many precedents of them in several ages of every King of this Realm: and it is an infallible maxim of the Law, That as the Court of the King's Bench, and Judges ought not to deny an Habeas corpus unto any prisoner that shall demand the same by whomsoever he be committed, so ought the cause of his imprisonment to be shown upon the return, so that the Court may adjudge of the cause whether the cause of the imprisonment be lawful or not: and because I will not trouble the Court with so many precedents, but such as shall suit with the cause in question, I will only produce and vouch such precedents, whereas the party was committed either by the commandment of the King, or otherwise by the commandment of the Privy Council, which Stampford. fol. 72. termeth the mouth of the King, such Acts as are done by the Privy Council, being as Acts done by the King himself.  
And in all these causes you shall find that there is a cause returned as well as a speciale mandatum domini Regis etc. or mardatum Privati Concilii domini Regis, whereby the Court may adjudge of the cause, and bail them if they shall see cause.  
In the eighth of Henry the seventh, upon return of an Habeas corpus awarded for the body of one Roger Sherry, it appeareth that he was committed by the Mayor of Windsor for suspicion of felony, and ad sectam ipsius Regis pro quibusdam feloniis et transgressionibus ac per mandatum domini Regis; 21 Hen. the seventh, upon the return of an Habeas corpus sent for the body of Hugh Pain, it appeared that he was committed to prison, per mandatum dominorum Privati Concilii domini Regis pro suspicione feloniae.  
Primo Henrici Octavi, Rot. 9 upon the return of an Habeas corpus sent for the body of one Thomas Harrison and others, it appears that they were committed to the Earl of Shrewsbury being Martial of the household, Per mandatum domini Regis, et pro suspicione feloniae, et pro homicidio facto super Mare.  
3 & 4 Philip. et Mariae, upon a return of an Habeas corpus sent for the body of one Peter Man, it appeareth that he was committed pro suspicione feloniae, ac per mandatum domini Regis et Reginae.  
4 & 5 Philippi et Mariae, upon the return of an Habeas corpus sent for the body of one Thomas Newport, it appeared that he was committed to the Tower, pro suspicion contrafact, mcnetae per privatum Concilium domini Regis et Reginae.  
33 Elizabeth●… upon the return of an Habeas corpus for the body of one Laurence Brown; it appeareth that he was committed Per mandatum Privati Consilii dominae Reginae pro diversis ●ausis ipsam Reginam tangen, ac etiam pro suspicione proditicnis.  
So as by all these precedents it appeareth where the return is either Per mandatum domini Regis, or Per mandatum dominerum Privati Concilii domini Regis; there is also a cause over and besides the mandatum returned, as unto that which may be objected, that per mandatum domini Regis, or Privati Concilii domini Regis is a good return of his imprisonment I answer.  
First, that there is a cause, for it is not to be presumed that the King or Council would commit one to prison without some offence, and therefore this mandatum being occasioned by the offence or fault, the offence or fault must be the cause, and not the command of the King or Council which is occasioned by the cause.  
Secondly, it appears that the jurisdiction of the Privy Council is a limited jurisdiction, for they have no power in all causes, their power being restrained in certain causes by several Acts of Parliament, 
Vide 4 Instit. fol. 53.  as it appeareth by the statute of 20 Edward the third, c. 11. 25 Ed. the third c. 1. stat. 4. the private petition in Parliament permitted in the 1 of R. 2. where the Commons petition that the Privy Council might not make any Ordinance against the Common Law, Customs or Statutes of the Realm; the fourth of Henry the fourth, ca 3. 13 Hen. the fourth, 7. 31 H. the sixth, and their jurisdictions being a limited jurisdiction, the cause and grounds of their commitment ought to appear, whereby it may appear if the Lords of the Council did commit him for such a cause as was within their jurisdiction: for if they did command me to be committed to prison for a cause whereof they had not jurisdiction, the Court ought to discharge me of this imprisonment, and howsoever the King is Vicarius Dei in terra, yet Bracton, cap. 8. fol. 107. saith, quod nihil aliud potest Rex in terris cum sit Minister Dei & Vicarius, quam solum quod de jure potest. nec obstat, quod dicitur quod Principi placet, legis habet vigorem, quia sequitur in fine legis cum lege Regia quae de ejus imperio lata est, id est non quicquid de voluntate Regis temere praesumptum est, sed animo condendi Jura, sed quod consilio Magistratuum suorum Rege author. praestant et habita super hoc deliberatione et tract. rect. fuer. definite. Potestat. itaque suajuris est, & non injuriae. The which being so, then also it ought to appear upon what cause the King committeth one to prison, whereby the Judges which are indifferent between the King and his Subjects, may judge whether his commitment be against the Laws and Statutes of this Realm or not.  
Thirdly, it is to be observed, that the King's command by his Writ of Habeas Corpus is since the commandment of the King for his commitment, and this being the latter commandment, aught to be obeyed; wherefore that commanding a return of the body cum causa detentionis, there must be a return of some other cause than Per mandatum domini Regis, the same commandment being before the return of the Writ.  
Pasch. 9 E. 3. pl. 30. fol. 56. upon a Writ of Cessavit brought in the County of Northumberland, the Defendants plead, That by reason the Country being destroyed by Wars with the Scots, King Edward the second gave command that no Writ of Cessavit should be brought during the Wars with Scotland, and that the King had sent his Writ to surcease the Plea, and he averreth that the Wars with Scotland did continue.  
Hearle that giveth the Rule saith, That we have command by the King that now is, to hold this Plea, wherefore we will not surcease for any Writ of the King that is dead; and so upon all these reasons and precedents formerly alleged, I conclude, that the return that Sir John Corbet was committed and detained in prison, Per speciale mandatum domini Regis, without showing the nature of the commandment by which the Court may judge whether the commandment be of such a nature as he ought to be detained in prison, and that without showing the cause upon which the commandment of the King is grounded, is not good. As unto the second part, which is, Whether the time of the commitment by the return of the Writ, not appearing unto the Court, the Court ought to detain him in prison or no?  
I conceive that he ought not to be continued in prison admitting that the first commitment by the command of the King were lawful, yet when he hath continued in prison by such reasonable time as may be thought fit for that offence for which he is committed, he ought to be brought to answer, and not to continue still in prison without being brought to answer.  
For it appears by the Books of our Laws, that liberty is a thing so favoured by the Law, that the Law will not suffer the continuance of a man in prison for any longer time then of necessity it must; and therefore the Law will neither suffer the party, Sheriffs or Judges to continue a man in prison by their power and their pleasure, but doth speed the delivery of a man out of prison, with as reasonable expedition as may be.  
And upon this reason it is resolved in 1 & 2 El. Dyer 175. & 8 Ed. 4. 13. That howsoever the Law alloweth that there may be no term between the test of an original Writ and the return of the same, where there is only a summons, and no imprisonment of the body, yet it will not allow that there shall be a term between the test of a Writ of Capias, and the return of the same, where the body of a man is to be imprisoned, insomuch that it will give no way that the party shall have no power to continue the body of a man imprisoned any longer time than needs must. 39 E. 3. 7. 10 H. 7. 11. 6 E. 4. 69. 11. E. 4. 9 48 E. 3. 1. 17 E. 3. 1 & 2 Hen. 7.  
Kellaways Reports do all agree, that if a Capias shall be awarded against a man for the apprehending of his body, and the Sheriff will return the Capias, that is awarded against the party, a non est inventus, or that languidus est in prisona, yet the Law will allow the party against whom it is awarded for the avoiding of his corporal penance and dures of imprisonment, to appear gratis, and for to answer.  
For the Law will not allow the Sheriff by his false return to keep one in prison longer than needs must, 38 Ass. pl. 22. Brooks imprisonment 100 saith, That it was determined in Parliament that a man is not to be detained in prison after he hath made tender of his fine for his imprisonment, therefore I desire your Lordship that Sir John Corbet may not be kept longer in durance, but be discharged according to the Law.   

The Lord Chief Justice his Speech.  
Master Attorney, you have heard many learned Arguments, if you be provided to answer presently, we will hear you, but if you will have a longer day for that you are not provided to argue, you may, we will give it you.  Doderidge. 
If you will you may see these precedents, it may be you have not seen some of them, and we must see them too.  Heath Attorney. 
May it please your Lordship, the Gentlemen that be of Council with the Knights at the Bar, they have said much, and spoken very long for their Clients, and to good purpose and pertinently. It is a cause that carrieth with it a great deal of weight, both towards the King and his Subjects also, and I am not so hasty to put myself upon the main point of this cause, when it is almost time for your Lordship to rise.  
My Lord, the Gentlemen have severally spoken, and given and insisted upon several reasons, and they have cited many precedents. I could say something of them at this present, and that some of them have been mistaken; and therefore I beseech your Lordship that I may have time to answer, that I may not wrong the cause of the King's part, or slight the cause on the Subjects part.  
But that which I desire to say now, is, that these Gentlemen have all of them gone in one form to divide the cause into two parts: 

part 1 The first, the form of the Return.  
part 2 The second, the matter of the Return.    
For the form, me thinks we may put an end to that now, if your Lordship please, that we may have no return to that another day, but I may apply myself unto the matter of the Return.  
To the form of the Return they have taken divers exceptions, but they especially insisted upon two main heads:  
First, that the Return is not good, because it is not an absolute Return: I confess the ground is well laid, and the Major is good, that if this Return be not positively the Return of the Warden of the Fleet himself, but the relation of another, it is no good Return, therefore I need spend no time in that, the ground being well laid; but under your Lordship's favour, the Major proposition I deny, we differ only in that, for I say that this Return is certain, and that it is not the words of any man else, but the express words of the Warden himself, and that this is added ex abundanti to give satisfaction to the Court, that he had order to make the Return; therefore I desire your Lordship to cast your eyes upon the substance of the Return, and distinguish it into parts.  
The words are, Detentus est in prisona sub custodia mea per speciale Mandatum domini Regis mihi significatum per Warrantum duorum Privati concilii dicti domini Regis, etc. If he had turned these words, and said, Detent' est prout mihi significat' per Warrantum duorum Privati concilii per speciale mandatum domini Regis, than it might be taken to be the words of the Lords of the Council, but the first words being positive, Detentus est per speciale mandatum domini Regis, that is sufficient, and the rest is surplusage, and he doth not say, prout mihi significut, but mihi significat only, which is absolute, and the resolution thereof resteth more in your Lordship's expounding of the words, then in putting any case upon them.  
The second exception is taken to the form of the Return, for that there is not the cause of the imprisonment returned, but of the detaining alone.  
My Lord, I say no more to that but this, No man is bound to answer more than that which is the contents of the Writ, I know the Writ, it may be to know specially the cause of the detaining, or what the cause of the caption is only, and if the Officer make answer to that which is required of him in the Writ, it is sufficient, it may be there be precedents both ways, I am sure there are detentions only, and there is no cause why the Officer should show the time of his commitment, but if the Prisoner shall desire it, your Lordship may grant him a Writ to show the cause both of his caption and detention also.  
Thirdly, they say that this Return is uncertain, and that it is the Warrant of the Lords of the Council, and not of the King, by which he is committed.  
For that my Lord I say, that if it had all been left out, and he had only said, Detentus fuit per speciale mandatum domini Regis, it had been sufficient, but when he doth more it is superfluous and not necessary, for it appeared before by whom he was committed, and when he returns the Warrant of the Lords of the Council, it is not their words that commit him, but they being the Representative Body of the King, they do express what the King's command is, but they signify nothing of their own, and therefore I desire your Lordship to deliver your opinion in that point of the Return, whether it be positive or no.  
This cause as it greatly concerns the Subjects, so it much concerns the King too, I am sorry there should be any occasion to bring these things in question, but since it is now here, I hope I shall give satisfaction to your Lordship, and to the parties too, and I desire that I may have Monday for it.   

Hid Chief Justice.  
I think it is not best for us to declare our opinions by peece-meals, but upon all the case together, and as well as you are a stranger to the Return, so are we, and there be many precedents and Acts of Parliament not printed, which we must see.  Doderidge. 
This is the greatest cause that ever I know in this Court, our Judgements that we give between party and party, between the King and the meanest Subject, aught to be maturely advised on, for so are the entries of our judgements, Quod matura deliberatione habita. It was judged, etc. And we must see the precedents and Acts of Parliament, that we hear mentioned.  Justice Jones. 
Master Attorney, if it be so that the Law of Magna Charta and other Statutes be now in force, and the gentlemen be not delivered by this Court, how shall they be delivered? apply yourself to show us any other way to deliver them.  Doderidge. 
Yea, or else they shall have a perpetual imprisonment.   

Per Curiam.  
Monday was appointed for the Attorney's Argument, and in the interim the Council for the gentlemen were by order appointed, for to attend the Judges with all the precedents and unprinted Statutes which they mentioned, and that they should let the Attorney see them also.  
And the gentlemen being asked if they desired to come again, answered they did, and a Rule was entered for it.    

On Monday the 27 of Tertio Michaelis 3ᵒ Caroli Regis in Banco Regis. Sir John Corbet, Sir Walter Earl, Sir Edmund Hampden, and Sir John Henningham Knights, were brought to the Bar.  Heath Attorney General. 
MAY it please your Lordship, these gentlemen, Sir Walter Earl, Sir John Corbet, Sir Edmund Hampden, and Sir John Henningham, upon their motion to this Court to have their Habeas Corpus, and that themselves and the cause of their detaining them in their several Prisons might be brought before your Lordship, had it granted to them.  
My Lord, at the first motion of it, the knowledge thereof of coming, and that they had such a desire, his Majesty was very willing to grant unto them (as to all his Subjects) this common case of Justice, and though it be a case which concerns himself in a high degree, yet he hath been so gracious and so just as not to refuse to leave the examination and determination thereof to the Laws of this Kingdom.  
My Lord, it is very true that this is a very great Cause, and hath raised a great expectation, and for the manner of it more than was necessary; but my Lord, I am afraid these gentlemen whom it concerns, have rather advised their Council, than their Council them: but I shall take the case as now I find it, and as the gentlemen's Council on the other side have led me the way to it.  
My Lord, the exceptions that have been taken by the Council on the other side, to the Return made by the Warden of the Fleet, and the rest of the Guardians of several Prisons, have been two, for renewing of your Lordship's memory we will read one of the Returns, they are all alike.  
Then the Return was read for Sir John Henningham by Master Keeling.  Heath Attorney. 
May it please your Lordship, against this Return the Council of the Gentlemen have taken some exceptions, and have divided their objections into two main points, The one the form the other the matter; To the form they have objected four several things.  
First, that the Return is not positive, but referred to the signification made by another, as the Lords of the Council.  
Secondly, that the Keepers of the Prisons have not returned the cause of the commitment, but the cause of the cause, which is not good.  
Thirdly, that the Return is imperfect, for that it shows only the cause of the detaining in Prison, and not the cause of the first commitment.  
And lastly, that the Return is contradictory in itself, for that in the first part thereof there is a certification that the detaining of these gentlemen in prison, is Per speciale mandatum domini Regis; and when the Warrant of the Lords of the Council is showed, it appears that the commitment is by the command of the King, signified by the Lords of the Council▪ and by your Lordship's favour, I will give a several answer to every of these several objections: And for the first, that the Return, is not positive and affirmative, but depends upon and hath relation to some other, and therefore it is not good; I do agree that the ground is true, that if the Return be not positive it is not good, we differ only in the Minor, That the Return is not positive and affirmative, for I agree that these Book cases that have been put are good Law, as 27 Ass. pl. 65. that if the Sheriff return that he hath sent to the Bailiff of the hundred, and he gives him that answer, that is no good Return; for the Sheriffs ought to make the Return as of his own act without naming of the Bailiff of the Hundred in his Return; for if he return, Quod mandavi Ballivo itineranti qui habet return. omnium Brevium & executionem eorund, per Cartam domini Regis qui mihi dedit nullum Responsum; this is not good if he were not Bailiff of a Franchise or Signiory, for so is 21 H. 7. fol. 4.  
There hath been cited to maintain these objections, 20 Ed. 3. the Record I have perused, and there I find that the Bishop said, that it is found in Archivis in the Record etc. that he was excommunicated, but it was found to be in Archivis etc. and that is no positive return: that it is so I will oppugn what hath been said by the Council on the other side, it must be granted that if the return here be not positive, it is imperfect, and in 5 H. 7. 28. it is said that an imperfect return is no return at all, it is all one; but if the return was so, that was not much material, for than it were but temporary, and it might be amended, but my Lord they have mistaken the minor proposition, for they have it as granted that there is an imperfect return from the Lords of the Council; my Lord I shall entreat you to cast your eyes upon the Return, and you shall find the first words positive and affirmative: the words are, Quod detentus est sub custodia mea per speciale mandatum domini Regis: the other words mihi significatum, they follow after but are not part of the affirmation made before it; but if they will have it as they seem to understand it, than they must return the words thus: Quod testificatum, or significatum est mihi per dominos Privati Concilii quod detentus est per speciale mandatum domini Regis, and then indeed it had not been their own proper return, but the signification of another, The Lords of the Council, the turning of the sentence will resolve this point, the thing itself must speak for itself, I conceive by your Lordship's favour, that it is plain and clear here is a positive Return, that the detaining is by the commandment of the King: and the rest of the Return is rather satisfaction to myself and the Court, than otherwise any part of the Return.  
The second Objection hath dependence upon this, as that he hath returned the cause of the cause, and not the cause of itself, wherein under your Lordship's favour they are utterly mistaken; for the Return is affirmative, Ego johannes Liloe testifico; etc. I know that among the Logicians there are two causes, there is Causa causans, and Causa caussata, the causa causans here in this case is not the warrant from the Lords of the Council, for that is causa causata: but the Primary and Original cause, which is causa causans, is speciale mandatum domini Regis; the other is but the Counsels signification or testification, or warrant for him that made the Return.  
To the third Objection, that the Return is imperfect, because it shows only the cause of the detaining in prison, and not the cause of the first commitment.  
My Lords, for that I shall not insist much upon it, for that I did say the last day which I must say again, it is sufficient for an Officer of the Law to answer that point of the Writ which is in command.  
Will your Lordship please to hear the Writ read, and then to see whether the Wardens of the prisons have not made answer to so much as was in command?  
Then the Writ was read by Master Keeling.  Heath Attorney General. 
My Lord, the Writ itself clears the Objection, for it is to have the party mentioned in it, and the cause of his detention returned into this Court, and therefore the answer to that is sufficient. Only my Lord, the Warden of the Fleet, and the rest of the keepers of the prisons, had dealt prudently in their proceed, if they had only said that they were detained Per speciale Mandatum Domini Regis, and it had been good, and they might have omitted the rest: but because if they should make a false Return they were liable to the actions of the party, they did discreetly to have the certification of the Lords of the Council in suspicion, that if this Return was not true they were liable to the actions of these Gentlemen.  
In 9 H. 6. 40. 44. it is said, that whatsoever the cause be that is returned, it must be accepted by the Court, they must not doubt of the truth of the Return, and the Officer that shall return it is liable to an action if the Return be false, and therefore the Guardian of the prisons did wisely because they knew this was a case of great expectation to show from whom they had their warrant, and so to see whether the cause returned be true or not.  
The last Objection to the Return is, that it is contradictory in itself, as that the first part of it is, that they are detained in prison, Per speciale mandatum Domini Regis, but in this relation of it, it shows that they are detained by the command of the Lords of the Council, for the words of their warrant are to require you still to detain him, etc.  
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 Majesty's pleasure to your Lordship, and they say it is his Majesty's pleasure you should know that the first commitment & this present detaining him in prison, are by his Majesty'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 Council on the other side desire that they may be bailed, and have concluded that they may not be remaunded, 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 shown divers Authorities out of their Law books, which they endeavoured to apply.  
The third was, Petition of the Commons answered by several Kings in Parliament.  
The fourth was, Acts of Parliament in Print.  
The last was, Precedents of divers times, which they alleged 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 have 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 hope shall sufficiently satisfy your Lordship and all others but the parties themselves, for I except them.  
My Lord, the great and mighty reason that 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 terrae.  
My Lords, they put many cases likewise to enforce it, 1 & 2 Eliz. Dier foe. 175. that the continuance of a Capias shall be from Term to Term, without Term betwixt, because otherwise the party defendant may be kept too long 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 faictz 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 fourth, 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. 
Prerogative, Br. 139.   
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, who ever 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, etc. during the war; the tenant pleadeth this command, and it was denied him, and he that notwithstanding 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 Edward the third 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 to any other Court of Justice, to proceed otherwise then according to the Laws of this kingdom, for it is part of your Lordship's oath to judge according to the Law of the kingdom. But my Lord, there is a great difference between those legal commands, and that absolute Potestas, that a Sovereign hath, by which a King commands; but when I call it absoluta potestas, I do not mean that it is such a power as that a King may do what he pleaseth, for he hath rules to govern himself by, as well as your Lordship, who are subordinate Judges under him, the difference is, the King is the head of the same fountain of Justice, which your Lordship administers to all his subjects, all Justice is derived from him, and what he doth, he doth not as a private person, but as the Head of the Commonwealth, as justiciarius Regni, yea the very essence of Justice under God upon earth, is in him: and shall not we generally, not as subjects only, but as Lawyers, who govern themselves by the rules of the Law, submit to his command, but make inquiries whether they be lawful, and say that the King doth not this or that in course of Justice?  
If your Lordship sitting here shall proceed according to Justice, who calleth your actions in question, except in your own Judgements, you see some error in the proceeding, and then you are subject to a writ of Error.  
But who shall call in question the Actions or the Justice of the King, who is not to give any account for them? as in this our case, that he commits a subject and shows no cause for it.  
The King commits and often shows no cause, for it is sometimes generally, Per speciale mandatum domini Regis, sometimes Pro certis causis ipsum dominum Regem moventibus; but if the King do this, shall it not be good? it is all one when the commitment is Per speciale mandatum domini Regis, and when it is Pro certis causis ipsum dominum Regem moventibus, and it is the same if the commitment be Certis de causis ipsum dominum Regem tangentibus.  
And my Lord, unless the Return to you doth open the secrets of the commitment, your Lordship cannot judge whether the party ought by Law to be remaunded, or delivered: and therefore if the King allow and give warrant to those that make the Return, that they shall express the cause of the commitment, as many times he doth, either for suspicion of felony, or making money, or the like; we shall show your Lordship that in these causes this Court in his Jurisdiction were proper to try these criminal causes, and your Lordship doth proceed in them although the commitment be Per speciale mandatum domini Regis, which hath not secret in it in these causes, for with the warrant he sendeth your Lordship the cause of the committing, and when these warrants are made and brought into this Court, your Lordship may proceed, but if there be no cause expressed, this Court hath always used to remaund them for it hath been used, and it is to be intended a matter of State, and that it is not ripe nor timely for it to appear.  
My Lord, the main fundamental grounds of Arguments upon this case begins with Magna Charta, from thence have grown states for explanation thereof, several Petitions of Parliament and Precedents for expedition, I shall give answers to them all.  
For Magna Charta, in the 29 Chapter, hath these words, No Freeman shall be taken nor imprisoned or disseised of his freehold, liberties, nor free customs, nor be outlawed, or exiled, nor any other way destroyed, nor we will not pass upon him nor condemn him, but by lawful Judgement of his Peers, or by the Law of the Realm.  
My Lord, this statute hath been many times confirmed, the Lord Coke numbered up the number to be about twenty, and we are to conclude on this, it is the foundation of our liberties.  
No Freeman can be imprisoned but by legale judicium Parium suorum, aut per legem terrae. But will they have it understood that no man should be committed, but first he shall be indicted or presented? I think that no learned man will offer that, for certainly there is no Justice of Peace in a County, nor Constable within a Town, but he doth otherwise, and might commit before an Indictment can be drawn or a Presentment can be made: what then is meant by these words, Per legem terrae? if any man shall say this doth not warrant that the King may for reasons moving him commit a man, and not be answerable for it, neither to the party, nor (under your Lordship's favour) unto any Court of Justice, but to the High Court of Heaven; I do deny it, and will prove it by your statutes.  
My Lord, it was urged by the Council on the other side, that our printed Magna Charta which saith, nec super eum mittimus, are mistaken, and that in divers Manuscripts it is expressly set down to be nec eum in Carcerem mittimus. I cannot judge of the Manuscripts that I have not seen, but my Lord I have one here by me, which was written many Ages ago, and the words in print are word for word as that that is here written.  
Then they say that Matthew Paris sets it down so in his story; my Lord, we do not govern ourselves by Chronicle, but to answer that of Matthew Paris, he reports a thing done in King john's time, but it was then but thought on, and it was enacted in the time of Henry the third, and there be many things said to be done in Matthew Paris which were not, and many things omitted by him which were done.  
This Charter was but in election in the time of King John, and then it might be, nec eum in Carcerem mittimus, but it was not enacted till the time of Henry the third, and then that was omitted, and the Charter granted as now we have it.  
But if they do see no more than I in this clause, I know not why we should contend about these words, seeing the first part of this statute saith, Nemo imprisonetur, why then may not I say as well, nec eum in carcerem mittimus? I see no difference in the words, and therefore my Lord, I shall not insist any longer upon the literal exposition of the words of Magna Charta, but I will resort to the rest of it which is expressed in the subsequent statute and in common practice.  

2 E. 3. 8. 5 E. 3. 9 14 E. 3. 14.  The Council 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 statute read.  Keeling Clerk. 
Item, whereas it is contained in the great Charter, etc. Vide all these statutes following in Master Littleton's Argument in Parliament.  Heath Attorney. 
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, etc. 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 Ed. 3. cap. 4. My Lord, I desire that that may be read.  Keeling Clerk. 
Item, that no man of what estate or condition soever that he be, shall be put out of land or tenement, nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought to answer by due process of Law. 
42 E. 3. 3.   Heath Attorney. 
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 the 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 in the meaning of the statute.  
Another statute that they mention, is in the same year, and it is pag. 9 chap. 9 I desire it may be read.  Keeling Clerk. 
Item, because the people of the Realm, etc. Vide Master Littleton as before.  Heath Attorney. 
My Lord, it is very clear, that this statute had no manner of thought of this cause in question; But whereas Sheriffs 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 contained in the great Charter, etc. Vide as aforesaid.  Heath Attorney. 
My Lord, this statute seems to be a commentary and light to the other statutes, the scope whereof is against private suggestions made to the King or his Council, and not in legal way, and therefore it condemns them; and this is more fully expressed in the statute of 38 Ed. 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, etc. Vide as before said.  Heath Attorney. 
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 Parliament in print, the Council on the other side produced, was the statute of 1 R. 2. chap. 12. which I desire may be read.  Keeling Clerk. 
Item, whereas divers people at the suit of parties were committed to the Fleet, etc. Vide as before.  Heath Attorney. 
My Lord, it appeareth that the scope of this statute is against the Wardens of the Feet, 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 misdemeanours 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: first, that the Warden should forfeit his office: and secondly, that he should recompense the party.  
In the fourth and fifth of Phil. & Mar. Dier 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 show 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 Council 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.  
Besides the printed statutes, they mentioned Petitions by the Commons, and the Answers to them of several Kings in Parliament. The first is, Rot. pl. ●6. Ed. 3. Numero primo & Numero vicesimo: besides these two, there is one other of 28 Ed. 3. nu. 18.  
My Lord, these three petitions and their answers, the two first were mentioned by the Council on the other side, that in 28 E. 3. 28. I have produced all of them even to one purpose.  
The Commons than 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 answers 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 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.  
And now my Lord I am at an end of those Statutes, and come to that that was alleged 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 show it, but I think they have it not, and therefore I will let that go.  
And now my Lord I come to that which I insisted upon, the Question as it was at first, not whether the King or the Lords of the Council can commit a man, and show no cause wherefore they do commit him, but whether the ordinary Courts of Justice have power to bail him or no; for that I will insist upon the Statute of Westm. primo, which I desire your Lordship may be read, and then I will apply. 
Cap. 15. Mainprize Br. 11, 56, 78, Dier 170.   
Vide Westm. primo.  
My Lord, this Statute, if I misunderstand it not, is a full expression to this purpose of Magna Charta, the scope whereof is to direct us in what case men imprisoned were to be bailed.  
It was especially for direction to the Sheriffs 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 the third, and this of Westminster in the time of Edward the first, so that the first, 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 fit for them then for us, they being nearer the first making of Magna Charta than we are? But certainly the Statute of Magna Charta was expounded at the time as I have showed 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 show 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, late 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.  
In the 33 of Hen. the sixth, folio vicesimo tertio, Robert Poynings Case, he was committed Pro diversis causis ipsum dominum Regem tangent '; this altars not the case, for it was as good as no cause, for it was the Warrant Domini Regis, and there is no question upon this: But my Lord, I know this is not the point in question.  
The next thing I shall show unto your Lordship, is Pasch. 21 Edvardi primo, Rot. cla. secund. and this, my Lord, was near the time of making of the Statute of Westm. prim. 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 those who were committed to his custody by the Earl of Warwick, he should show no grace to them, that is, they should not be bailed.  
The Sheriff 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 a Parliament, I wonder this should be done in Parliament, and that it was not said there, That this commitment 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. primo.  
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 shows, that the King by Letters commanded the Sheriff, that he should show 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 judgement, 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. 
Register fol. 77, etc.   
In this Book there is one Writ saith thus, Rex, etc. Quod replegiar' fac' A. nisi fuerit per speciale mandatum domini Regis.  justice Doderidge. 
In what Writ is that, De homine replegiando?  Attorney General. 
Yea, 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.  

F.N.B. 66. f.  Master 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 Master Fitzherbert in this case.  
The next thing that I will show your Lordship, is the opinion of Master 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 appears 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, or of his Council, which is incorporated to him, and speak with the mouth of the King.  
My Lord, I shall desire no better Commentaries upon a Law then these reverend grave Judges, who have put books of Law in Print, and such Books as none, I believe, will say their judgements are weak.  
The next thing I shall offer unto your Lordship is this, that I cannot show 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 four and thirtieth 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 parties 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 would be a suitor to her Majesty that nothing be done hereafter. And thereupon the Judges were desired to show in what cases men that 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 complaint; 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 hath been enforced by the Council 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 hand: But the Common Law, which hath long flourished under the Government of our King and his Progenitors Kings of this Realm, have 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 Berklies Case in Plowdens Com. 246. b. it is part of the King's Prerogative that he can do no wrong.  

Title Travers 5.  In the fourth of Edward the fourth, fol. 25. the King cannot be a disseisor; and so it is also in the Lord Berklies Case in 32 H. 8. Dier fol. 8.  
The King cannot usurp upon a Patron, for the Common Law hath that reverend respect to him, as that it cannot conceive he will do any injury.  
But the King commits a Subject, and expresseth no cause of the commitment; what then? shall it be thought that there is no cause why he should be committed?  
Nay my Lord, the course of all times hath been, to say there is no cause expressed, and therefore the matter is not ripe, and thereupon upon the Courts of Judicature have ever rested satisfied therewith, they would not search into it.  
My Lords, there be Arcana Dei, & Arcana Imperii, and they that search too fare into them, and make themselves busier with them than their places do require, they will make themselves etc. I will say no more; but I shall be able to show 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 long ago, nor fare removed from our memories; since there was a Treason, and the Actors thereof fled, some to the Court of Rome, some to Brussels, when it was to be put in execution; the Treason being discovered one is apprehended upon suspicion of it, and is put into the Tower, and there he lieth and thinketh the time very long, and I cannot blame him.  
It may be he is innocent, and thereupon he brings a Habeas Corpus, and by virtue of that Writ he is brought hither, and will your Lordship think it fit or convenient to bail him, when the accusation against him must come from beyond the Sea? I think you will rather so respect the proceed of the State, as that you will believe these things are done with a cause, then inquire further of them.  
Peradventure some great misdemeanour may be committed, and some of the parties make away, so as Proclamation cannot overtake them, and some are taken, it is fit that they that are in prison should be tried before the principal be taken.  
I will give you an instance, that lately was put into my mind; There be some Prisoners in the Tower at this present, which were put in thither when they were very young: If they should bring an Habeas Corpus, they were imprisoned for State matters, will your-Lordship deliver them? No, in that the State doth not think it fit to send them back into their own Countries. You will esteem so reverently of the State for committing children, that you will believe that there is great reason of State so to do, or else they would not do it: Many inconveniences may follow if it should be otherwise. It may be divers men do suffer wrongfully in prison, but therefore shall all prisoners be delivered? that were a great mischief.  
No doubt but the King's Power is absolute over his coins, if then he shall command his coin shall be turned to brass or leather, I confess it were inconvenient, but if the King would do it, the answer that I can make is, that he would not undo the Kingdom; but can your Lordship hinder it as being an inconvenience if he would do it? the Cinque Ports are free for traffic for all his Subjects, but the King in his Cabinet understands there is danger of War to come upon this Kingdom, thereupon he shuts the Ports that no man can go out, shall the Merchant say this is injustice in the King? And as in this, so in many other particulars this may appear, but I will not go too high: and therefore we are too wise, nay we are too foolish, in undertaking to examine matters of State, to which we are not born. Now my Lord, I come to our Book cases, by which it appears what our King may do, and nothing can be so against it, but he will not do it; the King may pardon all Traitors and felons, and if he should do it, may not the Subjects say, If the King do this, the bad will overcome the good? but shall any say, the King cannot do this? no, we may only say, he will not do this?  
The King may exempt men from the Office of Sheriff, is not this inconvenient? and may it not be said, he may exempt ten in a Shire, and then the burden of the Country shall rest upon the meaner sort of people? can any man say more to this, then that he will not do it?  
Inheritances are to be decided upon trial; the King may exempt private men from being of a Jury, but if he exempt all men, who shall try our Causes? for it is to be presumed, that he will not do it.  
But to our Case; by the Statute of Magna Charta, no man shall be put out of his freehold, etc. But if the King will do it, must not the party that is so put out go to the King by Petition? But you will say, it is a Petition of Right, and it may be these gentlemen's is so; admit it be, yet when such a Petition comes to the King, must it not be answered with these words, Soit droit fait all part? and when that the King will give that Warrant for it, than they must have it done, and not before.  
And this may answer a perpetual imprisonment, and God forbidden that this should be so: And now my Lord, I will trouble you no longer, but I will go to precedents. Precedents I know prevail much, and rule in many cases, and if the precedents they cite were not misinterpreted, I should think they had said a great deal.  
But my Lord, I will answer their presidens with precedents; nay, I will show your Lordship that the precedents which they have cited are no precedents for them.  
And my Lord, it is a dangerous thing for men in matters of weight to avouch precedents with confidence, when they make nothing for them: for my Lord, precedents are now become almost Proclamations, for they already run up and down the Town, and yet they know but part of them, and not all, and I think if they knew all, men would be more modest.  
But my Lord, I will now come to these precedents, where I may say they have not dealt freely with me, for they have showed me many precedents more than they mentioned here, and it may be they have done the like unto your Lordship.  
They alleged but eight precedents before your Lordship, but they have brought sixteen unto me: for these eight mentioned here, I will take them in order as they were cited, and answer.  
The first precedent they cited was in Henry the eight, Rot. 9 one Harrison, we have the Record here to show your Lordship, that he was committed for suspicion of felony, which was expressed in the Warrant; and then my Lord, this is clear, if the King, or the Lords of the Council, will express any thing within your Lordship's jurisdiction, there is good ground for your proceed: But when there is nothing expressed, whether you will judge what the cause of the Warrant is, I will leave to your Lordship's judgement, but it appears this was the cause, and that he was delivered.  
The next precedent was 22 H. 8. Rot. 57 and it was Parker's case; and it is true that his commitment appeared to be Per speciale mandatum domini Regis, but it was also proposed to be Pro pace & suspicion feloniae; and the signification of the command was given by Master Perk of Clifford's Inn; but there the Warrant shows the cause of the commitment was for the peace and suspicion of felony, and therefore he was bailed.  
The next was in 40 Eliz. Wendons Case; but my Lord, that commitment was out of the Star-chamber by an ordinary course: Then they cited 8 Jac. Thomas Caesar's Case, he indeed was committed by Speciale mandatum domini Regis, and brought his Habeas Corpus, but the Roll saith remittitur; and is that a Warrant for them to say that he was delivered?  
Then Sir Thomas Vernons Case was cited; and my Lord when we looked into the Records we found that he was committed for suspicion of Treason; and he was tried for it and discharged.  
The next precedent was Sir Thomas Monsons' Case; I wonder that they did cite that, for he was committed by the Lords of the Council indeed, but the ground of it was the suspicion of the death of Sir Thomas Overbury, and he was discharged again by the Lords of the Council. Certainly if you had known this, you would not have named this as a precedent for you.  
The next was Reynors' Case; he my Lord, was one of the Gunpowder-Treason, and yet there was a Warrant to discharge him too. And therefore what these precedents are, I shall submit to your Lordship, I must confess when they are cited together, they make a great noise, but when they are examined severally they prove nothing.  
My Lord, there is one more precedent of these that were cited here before your Lordship, and I hope that one shall be as none.  
It was mentioned to be Laurence Brown's Case, 30 Eliz. I know not what it is, but it is like to be of the same value as the rest, Pro certis causis eos moventibus, etc.  
And thus, my Lord, I have gone through those precedents that were alleged here before your Lordship; and now I will come to these precedents that were brought to me, and not mentioned here.  
The first was John browning's Case, in 21 H. 8. My Lord, these precedents came not to me before Saturday last about candle-lighting, and yesterday was no time fitting to search out precedents, and how could I then search for this?  
The next was William Roger's Case of the same time. But the cause is expressed to be for suspicion of felony, which is a cause within the Jurisdiction of this Court.  
Newports Case was the like in 4 & 5 Phil. & Mar. and so was Thomas Laurence Case, 9 Eliz. and Edw. Harecourts' Case, 5 Eliz. which was for suspicion of felony. Richard Beckwith, and not Barkwith as was cited, for they have mistaken both names and matters, was committed Per speciale mandatum domini Regis; and the Record saith he was bailed. But it was by reason of a letter from the Lords of the Council.  
The cause of Peter man's commitment in the 4 and 5 of Philip and Mary, appears to be for suspicion of felony and robbery.  
For Reynors' case it is the same with Beckwith, and were both for one thing.  
In the eighth of Henry the seventh, one Rog: Cherry was committed Per mandatum domini Regis, and it was for a criminal case, and he was afterwards indicted and acquitted and delivered.  
And there is another precedent thereof, that saith, he was afterwards arraigned, condemned, and hanged, we have the Record of it.  
And now my Lord, I will show some precedents on the other side, where men have been committed by the commandment of the King, and by the commandment of the Council, and have been delivered again by their directions: And of this kind there be two in the Tower, that as they were committed by Warrant, so by Warrants again for their bailing they were delivered; the offences were against the Forest and for Murder.  
In the fourth of Edward the third, M. 4. Edmond de Newport in Essex was indicted for an offence committed by him in the Forest. And M. 7. John Fox was likewise indicted for an offence by him done in the Forest: and there be two Warrants to bail them.  
M. 20. John Cobb was the like, and there was a letter from the King, Quod ponatur in Ballium usque ad proximam Assisam.  
These were offences within Westminster primo, and there be several Warrants to bail them.  
The Clerk of this Court hath many Records, by which it appeareth, that many have been committed by the command of the King and of the Queen, and of the Council, and brought their Habeas Corpus; and the success was, that many of them were committed to the same Prisons, and divers were committed to the Marshal of this Court; the reason was, for that many of them were to appear here, their causes being triable here, and it would have been a great trouble to send them back so fare to Prison as into the Countries, and therefore they were delivered to the Marshal of the King's Household: again, many had their Trials in this Court, and some suffered, and some were delivered by special command as they were committed by special command.  
The number of these of this nature are infinite that have been in our times, we have found some forty precedents of men committed out of the Chancery, and by the High Commission, for contempts, and some by the Barons of the Exchequer, and some in London that have been brought hither by Habeas corpus.  
Of this I shall observe, that in the 11 jacobi, there was a private Constitution in London made between the white Bakers, that they might live one by another, and the one not to invade the others liberties, and for contempt against this Ordinance, some were committed to prison, as Thomas Heanning, and Littlepage, they had a Habeas corpus, and the cause was shown to be by reason of the said Constitution, and thereupon the prisoners were sent back to London to abide the Order of the Mayor; for my Lord, this Court hath been ever careful not to examine the Decrees of the Chancery, or Court of Requests, but have only looked whether the cause returned be within the jurisdiction of this Court nor have they called in question the by-laws and constitutions of London, but they send them back to the court of Justice that committeth them.  
And hath this Court been so careful of these inferior Courts to this which is the chief, and when the King who is the head of Justice shall commit a man, shall not they be as careful to do the like Justice to them? But when the King saith to them, the commitment was by my warrant and commandment, will you question this? and whether this commitment be good or no? I hope you will not.  
And now my Lords, touching some precedents which have been taken out of their own showing, I shall make it appear, that as they have been committed by the King or Council, so they had warrants also to discharge them: and they my Lords, are two ancient Records, the first is 7 H. 7. Rot. 6. the other Rot. 73. the first was Thomas Brown, he was committed to the Marshalseys, Per mandatum domini Regis, & aliis certis de causis: and afterwards the Records say, Dominus Rex quoad Chase relaxavit mandatum suum, and he was bailed and the rest lay by it.  
My Lords, I will conclude, I could be infinite in this case in precedents, but enough is enough, your Lordship knoweth the weight of precedents, it is not enough to show this was done, but also to show the reason why it was done: I will trouble your Lordship no longer, but if any man shall doubt whether that or any part thereof, be truly recited, which hath been said touching the Records or Statutes, I can say no more but that the statutes have been read, and the Records are ready sorted out to be seen by your Lordship.  
I shall conclude (that I shall say) in this case to answer the fear rather than the just ground, of them that say that this may be a cause of great danger, with the words of Bracton, who spoke not to flatter the present age, lib. 1. chap. 8. in the end, speaking of a writ for wrong done by the King to the Subject touching land, he saith these words, si judicium à Rege testatur (cum breve non currat contra ipsum) locus erat supplicationi quod factum suum corrigat & emendet, quod quidem si non fecerit satis sufficit ei ad poenam quod dominum expectet ultorem, nemo quidem de factis suis praesumat disputare, multo fortius contra factum suum venire.  
My Lords, I englished it not, for I apply it not, any man may make use of it as he pleaseth; and so I conclude both for the point of Exception, and matter of the Return, which I refer to your Lordship's judgement, whether all in the Return but these words Per speciale mandatum domini Regis, be not superfluous. And for the matter, whether these Gentlemen be bailable or not bailable, I have showed your Lordship, that by the practice of all ages they are not bailable, but have been remaunded back.  
And therefore I pray your Lordship, that these Gentlemen may be remitted, and left to go the right way for their delivery, which is by Petition to the King: whether it be a Petition of right or of grace I know not; it must be I am sure to the King, from whom I do personally understand that these Gentlemen did never yet present any Petition to him that came to his knowledge.  Hid Chief Justice. 
Master Attorney, thus much we must say to you, you have taken a great deal of pains, you having had so short a time to consider of this case, it is a case of very great weight and expectation, and we do not intent that you shall expect long for our resolution, for that these Gentlemen are in prison, and desire no doubt to know where they must trust; I hope we shall resolve according to the reason of former times, and according to our consciences: but this I must tell you, as I did those that argued, you must bring in your precedents, for though we have seen some of them, yet some of them we have not seen, therefore we desire that your servants or yourselves do attend, and bring unto us after dinner, those precedents you have mentioned on the King's part, for we intent to meet this afternoon, and you shall have our opinions to morrow: and I must tell you on the other side, that this cause being of such weight, Council should be wary, how they speak any thing to inveigle the Court.  
Touching such precedents as you urged in some of them, we know there is something urged which makes not for you, so you have omitted some material things to be shown; I speak it to this purpose, not to prejudice the cause or to deliver my opinion, which becomes me not, but to show, that Counsellors should be careful, and this I dare say, there is matter in some of the precedents themselves that leads to another case if they were entirely cited.  
The Term grows away, you shall not be long in expectation, we will meet this afternoon, and give you our opinions to morrow morning.  Master Noye. 
We desire that Master Attorney may bring the precedents of 34 Elizabeth with him.  Master Attorney. 
I will show you any thing, but my Lord, I shall be bold to claim the privilege of my place, as the King's Council, when the King's Attorney hath spoken, there ought to be no Arguments after that, but if you ask to see any thing you shall have it.  Hid Chief Justice. 
It is that we aim at, the truth and right may appear, and not satisfy the one or the other part, but it is not desired to make use of it by way of reply, but for satisfaction only.  Sergeant Bramstone. 
My Lord, for the precedents I cited, I did think they should have been brought and read in the Court that your Lordship might see them.  Hid Chief justice. 
You shall need no Apology, the Records and Precedents shall be brought to the Court, and read openly, for the Court will not wrong you, and you shall see the difference between them, and your relation of them, nor you must not wrong us with your written verities.   

On thursday the twenty eight of November, Michaelis 3. Caroli Regis, Hid Chief Justice, Justice Doderidge, Justice Jones, and Justice Whitlock on the Bench: Sir John Corbet, Sir Walter Earl, Sir John Henningham, and Sir Edmund Hampden at the Bar.  Hid Chief justice. 
I am sure you here expect the resolution of the whole Court, as accordingly yesterday we told you you should have.  
This is a case of very great weight and great expectation, and it had been fit we should have used more solemn arguments of it then now for the shortness of the time we can do, for you have been long in prison, and it is fit you should know whereunto you should trust: I am sure you expect Justice from hence, and God forbidden we should sit here but to do Justice to all men according to our best skill and knowledge, for it is our oaths and duties so to do, and I am sure there is nothing else expected of us. We are sworn to maintain all the Prerogatives of the King, that is one branch of our oath, and we are likewise sworn to administer Justice equally to all people.  
We cannot I tell you deliver in solemn arguments and give the judgements of every one of us touching this case, as the weight thereof requireth; but we have met together, and we have duly and seriously considered of it, and of all that which hath been spoken of on either side, and we are grown to a resolution, and my brothers have enjoined me to deliver to you, the resolution of the whole Court: and therefore though it be delivered by my mouth, it is the resolution of us all: I hope I shall not mistake any thing of their intention in my delivery, but if I do they sit here by me, and I shall not take it ill if they right me.  
Therefore I must tell you there hath been many points learnedly argued at the Bar, which we shall not touch, or give our resolution upon, but bend ourselves to the point in judgement here.  
These three Statutes, as for example, the statute of Magna Charta, 25 E. 3. and 36 E. 3. and the statute of Westminster primo, & divers other statutes that have been alleged, & particularly disputed of, we all acknowledge and resolve, that they are good Laws, and that they be in force, but the interpretation of them at this time belongs not to us, for we are driven to another point: and though the meaning of them belongs to the one way or the other, yet our judgement must be the same; for that which is now to be judged by us is this, whether one that is committed by the King's authority, and no cause declared of his commitment, according as here it is upon this return, whether we ought to deliver him by bail, or to remaund him back again? Wherein you must know this which your Council will tell you, we can take notice only of this return, and when the case appears to come to us no otherwise then by the return, we are not bound to examine the truth of the return, but the sufficiency of it, for there is a great difference between the sufficiency and the truth.  
We cannot judge upon rumours nor reports, but upon that which is before us on record, and therefore the Return is examinable by us whether it be sufficient or not.  
The exceptions which have been taken to this Return were two: the one for the form, the other for the substance.  
For the form, whether it be formally returned or no, for it is not returned (as it is said) positively and absolutely, that they were committed by the King, but as it appears by a warrant from the Lords of the Council, and then there seems to be a contradiction in the return.  
For first it saith, they were committed by the King's command, and afterwards it allegeth it to be by a warrant of the Lords of the Council, and so it is repugnant.  
Now we conceive that this is a positive and an absolute Return, and so the reason is, that he first returns that they are detained by the special command of the King, and if he had ceased there, it had been positive; now there follows that this was signified to them by the Lords of the Council, this is returned to ascertain the Court that he returned the cause truly, and to show us that we should not doubt the verity of this return, & not to show to us that he hath no knowledge of the cause but by the signification of the Lords of the Council, according to that case of the Bishop of Norwich, touching the excommunication, he must testify his own knowledge, and not continetur in Archivis: so a Sheriff must not return quod mandavi ball' etc. and he gives this answer, unless it be the Bailiff of a Liberty that hath return of writs.  
And so here if the Warden of the Fleet had returned that the Lords of the Council had signified unto him that his prisoner was detained by the King's commandment, that had been sufficient: but when he returns positively, at the first that is done by the King's direction, he shows afterwards that which should make it appear that he deals not falsely, which might have been omitted, but being mentioned that that is the scope of it, and not otherwise, the return is good and positive.  
Now then to the other objections, because he speaks nothing of the caption why they were taken, you know it is the usual return of all Officers to answer the point in question; there is not one word in the Writ that demands the cause why they were taken, but why they are detained: so that the point in the Writ is sufficiently answered; for though sometimes it is necessary that the cause of the caption should be certified, yet sometimes it is superfluous, but in our case the cause of the detention is sufficiently answered, which is the demand of the Writ, and therefore we resolve that the form of this Return is good. The next thing, is the main point in Law, whether the substance or matter of the Return be good or no, wherein the substance is this, he doth certify that they are detained in prison by the special command of the King, and whether this be good in Law or no, that is the question.  
To this purpose if you remember this point, I say you did not cite any Book or Case in print but many precedents, which I confess are as strong as any Book Cases; for Book Cases I confess are taken and selected out of the Records and Resolution of Judges, and that is it which is in our Books, though they be not so obvious for every eye, but are found out by pains and diligent search, and being produced are of the same and equal authority with our Book Cases, but this must be when Records are brought faithfully and entirely, so that the Court may adjudge of them.  
Now the precedents you urged them to be so many, and so fully to the point, that we may thereby see that it is good to hear what can be said on both sides, and for to hear all, and view the Records themselves, and therefore we required you to bring the Records to us, and you did so, and you brought us more than you mentioned here; and we have perused them all, that thereby we might see whether the Court be faithfully dealt withal or no, for though Counsellors may urge a Book for their own advantage, yet it is the duty of the Court to see and distinguish of their allegations, as the truth may appear.  
This I told you yesterday, when I told you your precedents warranted not so much as you urge them for; for if you be remembered you urge some precedents to be, that where men were committed by the King, or by the Lords of the Council, and no cause expressed why they were committed, they were delivered.  
This is in effect our case, if the precedents affirm that when a man is committed by the King's command, and no just cause is shown, that upon such a general Return the party shall ipso facto be delivered, for if the Return be not amended that he shall be discharged.  
For although men come with prepared minds, yet the preparation of every man's heart ought to submit to the truth, and by the precedents, you shall see if it be so as you have alleged; but this I dare affirm, that no one of the Records that you have cited, doth enforce what you have concluded out of them, no not one; and therefore as you have cited Records and Precedents, Precedents shall judge this case.  
I will show you how they differ from the Records, you have concluded when the King hath committed one, and expresseth not the cause, the Court hath delivered the party; but you shall see the contrary concluded in every Case that you have put, where the cause of the commitment hath been expressed, there the party hath been delivered by the Court, if the Case so required, but where there hath been no cause expressed, they have ever been remaunded, or if they have been delivered, they have been delivered by the King's direction, or by the Lords of the Council: If this fall now in proof, you see you have gathered fair conclusions out of the Records, and that you may see that this is so, I have brought the Records with me of your own propounding, and I will go through them from point to point, and then judge yourselves of the case.  
It is not material whether I call for them in that order as you produced them or no, and therefore I will take them as they are, first or last in the King's Reign; They are in number many, in the time of Henry the seventh, Henry the eighth, Queen Marry, Queen Elizabeth, and King James his time.  
I will show you Sir Thomas Monsons' Case in 14 jacobi which was in all our memories.  
I will begin with Pasche, in 8 H. 7. Roger Cherries Case, you vouched it to this purpose, That Cherry being committed by the Major of Windsor, was brought hither by a Habeas Corpus, and the Major he returns that he was committed Per mandatum domini Regis, and that thereupon he was delivered; but you shall find by the Record that he was committed by the Major at the suit of the King for felony, for which he was afterwards indicted, brought to a trial, and then discharged.  
Vide this Record in Master Seldens Argument in the Parliament, 3 & 4 Caroli Regis, and so all the rest after mentioned.  
The next was 19 H. 7. Vrswicks Case; and you say he was brought hither by the Warden of the Fleet, who as you said, returned that he was committed Per mandatum domini Regis, and you said he was discharged, but he was bailed upon the Lord's Letter, and brought hither to record his return, for he was bound to appear here, and then he was discharged; but that was the cause of his bringing hither, vide the Records as aforesaid.  
The next was Hugh Pains Case, in 21 H. 7. and that you urged thus, you say that he was brought hither by a Habeas Corpus, by the Warden of the Fleet, who returned that he was committed by the King's Council, and he was bailed: Now we find that he was committed by them for suspicion of felony; and that cause was declared, and he was bailed; so that you see there was a cause expressed. Vide the Record aforesaid.  
The next is 2 H. 8. Thomas Beckley and Robert Harrisons Case; these you said were brought in hither by George Earl of Shrewsbury, and Thomas Earl of Surrey; and the Return was, that they were committed by the command of Hen. 7. and that they were bailed; but you shall find that they were committed for suspicion of felony; and that Harrison was committed by Hen. 7. but it was for Homicide upon the Sea, and so the cause is expressed, and afterwards he was bailed. The next was in 22 H. 8. John Parker's Case; you urged it to this purpose, That he was brought hither by a Habeas Corpus by the Sheriffs of London, and they you said returned, that he was committed Per speciale mandatum domini Regis nunciatum, etc. by Robert Perk, etc. the cause why you urged this was twofold; first, that he was committed by the King's command, and yet he was bailed: secondly, that he was committed Per mandatum domini Regis nunciat' per such a one: But you shall find by the Record that he was committed for the security of peace, and for suspicion of felony, and that was the cause for which he was bailed, for he is bailable by Law when such a cause appears. Vide the Record as afore.  
Go on to the next, and that is Peter Man's Case in the 3 & 4 Philip and Mary, you urged that to this purpose, You say, that he was brought by the Keeper of the Gatehouse, and you say, that he returned, that he was committed by the command of the King and the Queen's Council, and thereupon he was bailed; but you shall find that he was committed for suspicion of felony and robbery, and thereupon he was bailed.  
The next is in the 4 & 5 Phil. & Mar. Edward Newports Case; you said that the Constable of the Tower brought him hither, and returned that he was committed by the Council of the King and the Queen, and that he was bailed, but you see the Records that he was committed for suspicion of coining, which is bailable only in this Court, and therefore it was removed hither; yet this I must tell you, that it is true in one Record, it appears not but as you have cited it; but you may see how it is supplied by another Record, and the cause, and he was delivered by a Proclamation. Vide both Records in Master Seldens Argument, as aforesaid.  Doderidge. 
He could not be delivered by Proclamation unless it was for a criminal cause.  Hid Chief justice. 
Observe another thing in the Book, he is brought hither by the special command of the Council, so that although it appears not in the Record, yet if the King or Lords mean to have him tried for his life, he is brought hither: Then you cited Robert Constables case, 9 Eliz. and you said he was brought hither by the Lieutenant of the Tower, who returned that he was committed by the Lords of the Council, and thereupon he was bailed; but you shall find that he came hither to plead his pardon, and he was pardoned.  
Vide the Record as aforesaid.  
Thomas Laurence Case in 9 Eliz. is the same with Constables, for it appears that he was brought hither to plead his pardon, and he was pardoned, and that was the cause he was brought hither.  
The next was in 21 Eliz. John browning's case; it is true he was committed by the Lords of the Council, and he was brought by a Habeas Corpus to the chamber of Sir Christopher Wray, Chief Justice, and he was there bailed.  
The next was 33 Eliz. William Rogers; and he you said was brought hither by the Keeper of the Gatehouse, who returned, that he was committed to him by the Lords of the Council, yet there was a cause expressed, and that was for suspicion of coining of money.  
The next was in 39 Eliz. Laurence Brown, you say that he was brought hither by the Keeper of the Gatehouse, who returned that he was committed for divers causes, moving the Lords of the Council, and thereupon he was delivered; but the Record is, that the Return also was for suspicion of Treason, and although the suspicion of Treason appears not in one Record, yet there is another for it: Here you see cause of his commitment, and that he was bailed, but it was by the King's command, Vsque Octabis Michaelis, vide the Record.  
I blame not you that are of Council with these Gentlemen for urging this Record, for this Cause is not expressed in your Record, but that he was committed by command of the Council only, but he was committed for suspicion of felony with Sir Thomas Smith: Vide the Record.  
The next is in 40 Eliz. Edward Harecourts' Case, and Thomas Wendens Case; I bring them together because they are both in one year; in the 40 of Eliz. Edward Harecourt you say was committed to the Gatehouse by the Lords of the Council, and the Return was that he was committed by them Certis de causis ipsos moventibus ignotis, and he was bailed.  
Here is another in the same time committed to the same prison by the Lords in the Star-chamber, it was Thomas Wendens case, and he you say was committed by them Certis de causis, (as the other was) and that he was bailed; but you shall find in the margin of the Roll, Traditur in ball' ex assensu Concilii dominae Reginae; and that was the relation of the Queen's Attorney, so that you see how that precedent fits you.  
The next are two more of the Gatehouse, Beckwith and Reyner, they, you said, were committed to the Gatehouse, brought their Habeas Corpus, and the Keeper of the Gatehouse returned, that they were committed by virtue of a Warrant from the Archbishop of Canterbury, Henry Earl of Northampton, Lord Warden of the Cinque Ports, and others of the Privy Council, requiring the said Keeper to receive the said Beckwith and Reyner into his charge, until they should have further order from them in that behalf; and you say they were bailed.  
Vide the Record in Master Seldens aforesaid.  
Now you shall see the direction to bail him; he was bailed by the direction from the Lords of the Council, as appears by their Letter. Vide as aforesaid.  
Now we come to Caesar's Case in 8 Jacobi, you urged that to this purpose; you say he was committed to the marshalsea, who upon a Habeas Corpus returned, That he was committed Per speciale mandatum domini Regis, and you say, because the Return was so general, the rule of the Court was, that it should be amended, or else he should be discharged, I will open to you what the reason of that rule was, for that notice was taken, that the Keeper of the Prison had used a false Return, and had usurped the name of the King, I know not how, but the commitment was not by the King's command; and that was the cause that he had day given him to amend his Return, but his body was remaunded to Prison, as you shall see the Record. Vide the Record, etc.  
The last precedent that you used, was that of Sir Thomas Monson, and that was so notorious, and so late, that I marvel that was offered at all, it made me jealous of all the rest, that was so notorious; and now I have omitted none you brought me. Vide the Record.  
By this Record you may see that he was committed by divers Lords of the Council, and it was for the suspicion of the death of Sir Thomas Overbury; and it is notoriously known, that he was brought hither to plead his pardon.  
I will not tell you that you read all these precedents, for you read none, but urged them here before us, but we required you to bring them to us, and they were brought to us, Master Corbet brought them all but one, and that Master Noye brought, it was in 22 H. 8. Parker's Case: And one Master Holborn a man whose face I never saw before, nor is he now in mine eye, did yesterday bring us one precedent to this purpose, and it was Sir John Brockets Case in 1 Jac. he was committed to the Gatehouse, and upon a Habeas Corpus the Keeper returned that Commiss' suit per Warrantum Dominorum de Privat' Concilio cujus tenor sequitur in haec verba. viz. To the Keeper of the Gatehouse, etc. vide Master Seldens precedents; but see upon what ground he was bailed, it was a special command of the Lords of the Council. Vide the Record.  
These are all the Records and precedents that you ministered unto us in your Argument, and that were delivered unto us, for I have dealt faithfully with you, and now you have seen them in the Cases, I would have any man judge of the conclusion which you made the last day, That when a man is committed, and the case not known, but it is certified to be by the King's special commandment, and the Habeas Corpus is procured by yourselves and sped by the King, that we can discharge or bail them.  
Then the precedents are all against you every one of them, and what shall guide our judgements, since there is nothing alleged in this case but precedents? that if no cause of the commitment be expressed, it is to be presumed to be for matter of State, which we cannot take notice of; you see we find none, no not one, that hath been delivered by bail in the like cases, but by the hand of the King or his direction.  
If we should cease here, you see you have shown nothing to satisfy us, and we know that you that be of their Council, will satisfy your Clients therein.  
But you shall see that we have taken a little pains in this Case, and we will show you some precedents on the other side; and I believe there be five hundreth of this nature that may be cited to this purpose, I shall go retrograde and go backwards in citing the years of the precedents that I shall mention.  
I will begin with 7 H. 8. Edward Page, he was brought hither by the Steward of the Marshalseys, who returned that he was committed Per mandatum domini Regis, and he was remitted, so that he was not delivered upon this general Return, but he was remaunded.  
The next was 12 H. 7. there you shall see a precedent where one was committed, his name was Thomas You, he was committed for felony, and also Per mandatum domini Regis, and the King's Attorney came hither and released the King's command, and thereupon he was bailed.  Master Noye. 
It is all one with Parker's Case.  Chief justice Hid. 
No, for here were two causes of the commitment, Hubbert was then the King's Attorney, and he signified in open Court that he was discharged by the King's command, and Postea traditur in ball' pro suspicione feloniae.  
The next was Humphrey Booths, 9 H. 7. Rot. 14. you shall find it much to that purpose as the other was before; he was imprisoned for an outlawry, and by the commandment of the King also, and after that the release of the King's commandment was certified to the chief Justice, he was thereupon discharged. Vide the Record.  
The next is 7 H. 7. Thomas Brown, john Rawlings, and Robert Sherman and others, were committed Per mandatum domini Regis, and for felony, outlawry, and other causes, as appears by the Records, and after the King releaseth his commandment, and that the outlawry should be reversed, and for the felony he was bailed. Vide the Record.  
So that you may see the offences mentioned in the Warrant for the commitment were triable here, and when the King releases his commandment they were bailed for the rest, but they that were committed by the commandment of the King were released by the King.  
In 7 H. 7. the Cases of William Bartholomew, Henry Car, and others, is to the same effect, by all which you may see, that when the King releaseth his commandment, they were bailed for the rest, and as they were committed by the King's commandment, so they were released by the King's command.  
Now here I shall trouble you with no more precedents, and you see your own what conclusion they produce. And those strong precedents alleged on the other side, we are not wiser than they that went before us; and the common custom of the Law is, the Common Law of the Land, and that hath been the continual common custom of the Law, to which we are to submit, for we come not to charge the Law, but to submit to it.  
We have looked upon that precedent that was mentioned by Master Attorney. The resolution of all the Judges of England in 34 Eliz. we have considered of the time, and I think there were not before, nor have been since more upright Judges than they were, Wray was one, and Anderson another: In Easter Term this was certified under the hands of all the Judges of England, and Barons of the Exchequer in a duplicate, whereof the one was delivered to the Lord Chancellor, and the other to the Lord Treasurer, to be delivered to the Queen. We have compared our copies, not taking them the one from the other, but bringing them: we have long had them by us together, and they all agree word for word, and that which M. Attorney said, he had out of Judge anderson's Book, and it is to this purpose, to omit other things, That if a man be committed by the commandment of the King, he is not to be delivered by a Habeas Corpus in this Court, for we know not the cause of the commitment. Vide this at the latter end of the first part of Master Seldens Argument as aforesaid.  
But the Question now is, Whether we may deliver this Gentleman or not, you see what hath been the practice in all the King's times heretofore, and your own Records, and this resolution of all the Judges teacheth us, and what can we do but walk in the steps of our forefathers? If you ask me which way you should be delivered, we shall tell you, we must not counsel you.  
Master Attorney hath told you that the King hath done it, and we trust him in great matters, and he is bound by Law, and he bids us proceed by Law, as we are sworn to do, and so is the King; and we make no doubt but the King if you seek to him, he knowing the cause why you are imprisoned, he will have mercy, but we leave that. If in Justice we ought to deliver you we would do it, but upon these grounds, and these Records, and the precedents and resolutions we cannot deliver you, but you must be remanded. Now if I have mistaken any thing, I desire to be righted by my brethren, I have endeavoured to give the resolutions of us all.   

TO THE KING'S MOST EXCELLENT MAJESTY: The humble Petition of Sir John eliot Knight, Prisoner in the Gatehouse concerning the LOANE. 
Delivered the 10th of Novemb. 1627. but never answered.   
SHOWETHS,  
THAT your poor suppliant affected with sorrow and unhappiness, through the long sense of your Majesty's displeasure, willing in every act of duty and obedience to satisfy your Majesty of the loyalty of his heart, than which he hath nothing more desired, that there may not remain a jealousy in your royal breast, that stubbornness and will have been the motives of his forbearing to condescend to the said Loan, low as your Highness' foot, with a sad yet a faithful heart, for an Apology to your Clemency and Grace, he now presumes to offer up the Reasons that induced him, which he conceiveth necessity of his duty to Religion Justice, and your Majesty did enforce.  
The Rule of Justice he takes to be the Law, impartial Arbiter of Governments and obedience, the support and strength of Majesty, the observation of that Justice by which subjection is commanded, Religion (adding to these power not to be resisted) bind up the conscience in an Obligation to that rule which (without open prejudice and violence of these duties) may not be impeached.  
In this particular therefore for the Loan, being desirous to be satisfied how fare the Obligation might extend, and resolving where he was left master of his own, to become servant to your will, he had recourse unto the Laws, to be informed by them; which in all humility he submitteth to your most sacred view in the Collections following.  
In the time of Edw. 1. he findeth that the Commons of that age were so tender of their Liberties, as they feared even their own free Acts and gifts might turn them to a Bondage and their heirs, wherefore it was desired and granted:  

25 E. 1.  That for no business such manner of Aids, Taxes, nor Prizes should be taken but by common assent of the Realm, and for the common Profit thereof.  
The like was in force by the same King, and by two other Laws again enacted:  

Stat. Tallage. & 33 E. 1.  That no Tallage or Aid should be taken or levied without the good will and assent of the Archbishops, Bishops, Earls, Barons Knights, Burgesses, and other Freemen of the Land.  
And that prudent and magnanimous Prince Edward the third; led by the same Wisdom, having granted:  
That the greatest gift given in Parliament for the aid and speed of his matchless undertaking against France, should not be had in example, nor fall to the prejudice of the Subject in time to come; did likewise add in confirmation of that Right, That they should not from thenceforth be grieved to sustain any charge or aid but by the common assent, and that in Parliament.  
And more particularly upon this point, upon a Petition of the Commons afterwards in Parliament it was established:  

Rot. 16. 25 E. 3.  That the Loans which are granted to the King by divers persons, be released, and that none from henceforth be compelled to make such Loans against their wills, because it is against reason and the Franchises of the Land, and restitution be made to such as made such Loans.  
And by another Act upon a new occasion, in the time of Richard the third it was ordained:  
That the Subject in no wise be charged with any such charge, exaction, or imposition called a Benevolence, nor such like Charge, and that such like exactions be damned and annulled for ever.  

1 R. 3.  Such were the opinions of these times, for all these Aids, Benevolences, Loans, and such like charges exacted from the Subject not in Parliament, which they held to be grievances contrary to their Liberties, and illegal: And so pious were their Princes in confirmation of their Liberties, as having secured them for the present by such frequent Laws and Statutes, they did likewise by them provide for their posterity; and in some so strictly that they bond the observation with a curse: as in that of 33 Edw. 1. and also under pain of excommunication, as by the other of the 25 of the same King, which was to be denounced against all those that violate or break them, which Act extends to us.  
And these reasons he presents to your most sacred Majesty as the first motive taken from the Law.  
There are others also, which in his humble apprehension he conceived from the Action itself, which he likewise tenders to your most excellent Wisdom.  
reason 1 First, that the carriage and instructions accompanied with the Authority of the great Seal imported a constraint, such requests to Subjects being  and implied commands, and so preventing that readiness and love which in a free way would have fare exceeded those demands, whereas the wont Aids given to your happy Ancestors were ex spontanea voluntate & charitate populi, whereby they made that conjunction of their hearts at home which wrought such power and reputation to their Acts abroad.  
reason 2 Whereas the firmest obligation of that readiness and love is the benignity of Princes, giving and preserving to their people just and decent Liberties, which to this Kingdom are derived from the Clemency and Wisdom of your Progenitors, to whom there is owing a sacred memory for them: he could not as he feared without pressure to these immunities, become an actor in this Loan, which by imprisonment and restraint was urged, contrary to the Grants of the great Charter, by so many glorious and victorious Kings, so many times confirmed, being therein most confident of your Majesty that never King that reigned over us, had of his own benignity and goodness a more pious disposition to preserve the just liberties of his Subjects then your sacred self. 
Chart. Libert. 9 H. 5. confirmed 25 E. 1. 1, 4, 5, 10, 14, 28, 31, 36, 42, 45, 50 E. 3. 1, 2, 3, 4, 7, 9, 13 H. 4. 4 H. 5. 2 H. 6. etc.   
reason 3 Though we were well assured by your Majesty's Royal promise, whose words he holds as Oracles of truth, that it should not become a precedent during the happiness of your Reign, the long continuance whereof is the daily subject of his prayers yet he conceived from thence a fear, that succeeding ages might thereby take occasion for posterity to strike at the propriety of their goods, contrary to the piety and intention of your Majesty so graciously expressed.  
And these being the true grounds and motives of his forbearance to the said Loan, showing such inconveniences in reason, and representing it an Act contradicting so many of your Laws, and most of them by the most prudent and happy of our Princes granted, which could not, without presumption, beyond pardon in your suppliant, in taking to himself the dispensation of those Laws, so piously enacted, by him violated or impeached.  
In the fullness of all submission and obedience, as the Apology of his loyalty and duty, he lowly offers to your most sacred Wisdom for the satisfaction of your Majesty, most humbly praying your Majesty will be graciously pleased to take them into your Princely consideration, where when it shall appear (as he doubts not but from hence it will to your deep judgement) that no factious humour nor disaffection led on by stubbornness and will hath herein stirred or moved him, but the just obligation of his conscience, which binds him to the service of your Majesty, in the observance of your Laws, he is hopeful (presuming upon the Piety and Justice of your Majesty) that your Majesty, according to your innate Clemency and Goodness, will be pleased to restore him to your favour and his liberty, and to afford him the benefit of those Laws which in all humility he craves.   
FINIS.