or other due process to be made by the law And, whereas, it is said, there might be danger in revealing the cause; that may be avoided, by declaring a general cause; as for treason, suspicion of treason, misprision of treason, fe be by the law of the land; it is awarded, assented, and established, That from henceforth none shall be taken, by petition or suggestion made to our lord the king, or to his council, unless it be by indictment or presentment of his good and lawful people of the same neigh-lony, without expressing the particulars; which bourhood; which such deed shall be done in due manner, or by process made by writ original at the common law; nor that none be outed of his franchises, office, nor freehold, unless he be duly brought to answer, and be forejudged of the same, by the course of the law; and that if any thing be done against the same, it shall be redressed and holden for none. And 28 Edw. 3. ch. 3. it is more direct; this liberty being followed with fresh suit by the subject; where the words are not many, but very full and significant; That no man, of what state and condition he be, shall be put out of his lands or tenements, nor taken, nor imprisoned, nor disinherited, nor put to death, without he be brought to answer by due process of the law.' Several other statutes were cited by him, in confirmation of this point of the Libert of the Subject." 6 The king's council afterward made objections to the said argument; yet acknowledged, "That the 7 statutes, urged by the commons, are in force; yet said, That some of them are in general words, and therefore conclude nothing, but are to be expounded by precedents; and some of them are applied to the suggestion of subjects, and not to the king's command simply of itself; and that per legem terræ,' in Magna Charta, cannot be understood for process of law and original writ; for that in criminal proceedings, no original writ is usual at all; but every constable, either for felony or breach of the peace, or to prevent the breach of the peace, may commit without process or original writ; and it were very hard the king should not have the power of a constable, They also argued, That the king was not bound to express the cause of imprisonment; because there may be in it matter of state, not fit to be revealed for a time; lest the confederates thereupon make means to escape the hands of justice, Besides, that which the commons do say, That the party ought to be delivered or bailed, is a contradiction in itself; for bailing doth signify a kind of imprisonment still; delivery is a total freeing: and besides, bailing is a grace or favour of a court of justice, and they may refuse it." To this it was replied, "That the statutes were direct in point; and though some of them speak of suggestions of the subjects, yet they are, in equal reason, a commitment by commmand of the king, as when the king taketh notice of a thing himself. And for the words, per legem terræ, original writs only are not intended, but all other legal process, which comprehendeth the whole proceedings of the law upon cause other than trial by jury; and the course of the law is rendered by due process of the law; and no man ought to be imprisoned by special command without indictment, can give no greater light to a confederate, than will be conceived upon the very apprehension or upon the imprisonment, if nothing at all was expressed. And as for bailing the party committed, it hath ever been the discretion of the judges to give such respect to a commit ment, by command of the king or privy. council, which are ever supposed to be done in just and weighty cases; that they will not suddenly set them free, but bail them to answer what shall be objected against them, on the king's behalf; but if any other inferior officer do commit a man without shewing cause, they do instantly deliver him, as having no reason to expect their leisure; so that delivery is applied when the imprisonment is by com mand of some mean minister of justice; and bailing, when by command of the king or his council and though bailing is a grace and favour of the court in case of felony and other crimes; for that there is another way to discharge them, in a convenient time, by their trial: yet where no cause of imprisonment is returned, but the command of the king, there is no way to deliver such persons, by trial or otherwise, but that of the Habeas Corpus; and if they should be then remanded, they might be perpetually imprisoned without any remedy at all: and, consequently, a man that had committed no offence, might be in a worse case than a greater offender; for the latter should have an ordinary trial to discharge him! the other should never be delivered." Mr. Selden. "Your lordships have heard, from the gentleman that spoke last, a great part of the grounds upon which the commons, upon mature deliberation, proceeded to that clear Resolution, touching the Right of the Liberty of their Persons: the many acts of parl. which are the written laws of the land, and are expressly to the point, have been read and opened; and such objections as have been, by some, made unto them, and objections also made out of other acts of parl. have been cleared and answered. It may seem now perhaps, that little remains needful to be further added, for the enforcement and maintenance of so fundamental and established a right and liberty belonging to every freeman of the kingdom, The commons taking into consideration that in this question (being of so high a nature, that never any exceeded it in any court of justice whatsoever) all the several ways of just examination of the truth should be used; have also most carefully informed themselves of all former judgments or prece dents concerning this great point either way, and have been no less careful of the due preservation of his majesty's prerogative, than of their own rights. The precedents here are of two kinds; either merely matter of record, or : else the formal resolutions of the judges, after | any other, without cause shewed of such comsolemn debate in the point.-This point that mitment; which Resolution, as it is grounded concerns Precedents, the commons have com- upon acts of parliament already shewn, (the nanded me to present to your lordships; reason of the law of the land being comwhich I shall, as briefly as I may, so I do it mitted to the charge of another to open unto faithfully and perspicuously to that end, you) so it is strengthened by many precedents my lords, before I come to the particulars of records." He then produced 12 precedents, of any of those precedents, I shall first remem- full and directly in the point, to prove that ber to you, that which will seem as a general persons so committed, ought to be delivered key for the opening and true apprehension of upon bail; which were distinctly opened and all those on record; without which key no read to their lordships. Then he also offered nan, unless he be versed in the entries and to their consideration other kind of precedents, course of the king's bench, can possibly under- which were solemn resolutions of judges, things stand. In all cases, my lords, where any right not of record but yet remaining in authentic or liberty belongs to the subject by any positive copies; which precedents and authorities we law, written or unwritten; if there were not omit for the length thereof.-He then proalso a remedy by law for enjoying or regaining ceeded and said, "The commons (desiring of this right or liberty, when it is violated or with all care to inform themseves fully of the taken from him, the positive law were most truth of the Resolution of the judges in the vain, and to no purpose; and it were to no 34th year of the late queen, cited in the case purpose for any man to have any right in of Sir J. Heveningham, by the king's counsel, any land or other inheritance, if there were as arguments against his not being bailed) have not a known remedy; that is, an action or got into their hands a book of select cases, writ, by which, in some court of ordinary collected by the rev. and learned judge, chief justice, he might recover it. And in this justice Anderson, all written with his own case of right of Liberty of Person, if there were hand; which he caused to be read. These not a remedy in the law for regaining it when precedents, saith he, do fully resolve for the it is restrained, it were to no purpose to speak maintenance of the antient and fundamental of laws that ordain it should not be restrained. point of Liberty of the Person, to be regained The writ of Habeas Corpus, or Corpus cum by Habeas Corpus when any one is imprisoned." Causa, is the highest remedy in law for anyThen he concluded, "That having thus man that is imprisoned; and the only remedy for him that is imprisoned by the special command of the king, or the lords of the council, without shewing the cause of commitment; and if any man be so imprisoned by any such command, or otherwise whatsoever through Eugland, and desire, by himself, or any other in his behalf, this writ of Habeas Corpus for the purpose in the court of king's bench, that writs is to be granted to him, and ought not to Sir Edward Coke." Your lordships have be denied; and is directed to the keeper of heard 7 acts of parliament in point, and 31 the prison, in whose custody the prisoner re- precedents summarily collected, and with great mains, commanding him, That after a certain understanding delivered; which I have peruday he bring in the body of the prisoner, cum sed, and understand them all thoroughly: 12 causa detentionis, and sometimes cum causa of the precedents are in terminis terminanticaptionis; and he, with his return, filed to the bus, a whole jury of precedents, and all in the writ, bringeth the prisoner to the bar at the point. I am transported with joy, because of time appointed, and the court judgeth of the the hope of good success in this weighty busisufficiency or insufficiency of the return; and ness, your lordships being so full of justice, if they find him bailable, committitur mares- and the very theme and subject both promise callo, the proper officer belonging to the court, success; which was corpus cum causa, the and then afterwards traditur in ballium. But freedom of an Englishman, not to be imprisonif upon the return of the Habeas Corpus it ap-ed without cause shewn; which is my part to pear to the court, that the prisoner ought not to be bailed, nor discharged from the prison whence he is brought, then he is remanded and sent back again, to continue till by due course of law he may be delivered; and the entry of this is, Remittitur quousque secundum legem deliberatus fuerit; or, remittitur quous que, &c. which is all one, and the highest award of judgment that ever was or can be given upon a Habeas Corpus.-Your lordships have heard the Resolution of the commons, touching the enlargement of a man committed by command of the king or privy council, or gone through the charge committed to him by the commons, he should now, as he had leave and direction given him, lest their lordships should be put to much trouble and expence of time, in finding and getting copies at large of those things which he had cited, offer also to their lordships authentic copies of them all; and so left them, and whatsoever else he had said, to their lordships further consideration." shew, and the reason and the cause why it should be so; wherein I will not be prolix; for to gild gold were idle and superfluous."--After that he had cleared some doubts made of the Statute of Westminster, which saith, "That the sheriff, and others, in some cases, may not replevin men in prison,' he proceeded further and said, That all those arguments offered unto you in this last conference, are of a double nature. 1. Acts of parliament. 2. Judicial precedents. For the first I hold it a proper argument for your lordships; because yon, my lords temporal, and you, my lords spiritual, gave your as sent unto those acts of parl.; and therefore, if these cannot persuade you, nothing can. For the 2nd, which are judicial precedents, it is Argumentum ab authoritate, and Argumentum ab authoritate, valet affirmative; that is, I conceive (through it be no good argument to say negatively) the present judges gave no opinion in this point. 3. It is good law, which I fortify with a strong axiom, Neminem oportet sapientiorem esse legibus. Now these two arguments being so well pressed to your lordships by my colleagues, I think you may wonder what my part may be it is short but sweet; it is the Reason of all those Laws and Precedents; and reason must needs be welcome to all men: for all men are not capable of understanding the ław, but every man is capable of reason. And these reasons I offer to your lordships, in affirmance of the antient laws and precedents made for the Liberty of the Subject, against Imprisonment, without cause expressed. 1. Á re ipsa. 2. A minori ad majus. 3. From the remedies provided. 4. From the extent and universality of the same. 5. From the indefiniteness of the time. 6. A fine.----The first general reason is, A re ipsa, even from the nature of imprisonment, ex visceribus cause; for I will speak nothing but ad idem, be it close or other imprisonment; and this argument is threefold; because an imprisoned man upon will and pleasure, is. 1. A bond-man. 2. Worse than a bond-man. 3. Not so much as a man; for mortuus homo non est homo; a prisoner is a dead man. 1. No man can be imprisoned upon the will and pleasure of any, but he that is a bond-man and villain; for that imprisonment and bondage are propria quarto modo to villains: now propria quarto modo, and the Species, are convertible; whosoever is a bond man may be imprisoned, upon will and pleasure; and whosoever may be imprisoned, upon will and pleasure, is a bond-man. 2. If Freemen of England might be imprisoned at the will and pleasure of the king, or his commandment, then were they in worse case than bond-men or villains; for the lord of a villain cannot command another to imprison his villain without cause, as of disobedience, or refusing to serve, as it is agreed in the Year-Books.'--And here he said, That no man should reprehend any thing he said out of the books or records. He said, he would prove a freeman, imprisonable upon command or pleasure without cause expressed, to be absolutely in a worse case than a villain; and if he did not make this plain, he desired their lordships not to believe him in any thing else; and then produced two Book-Cases, 7 Edw.3.; A prior had commanded one to imprison his villain; the judges were ready to bail him, till the prior gave his reason, that he refused to be bailiff of his manor, and that satisfied the judges. Second Case, 33 Edw. 8. Title Trespass 253. in Faux Imprisonment: it was of an abbot, who commanded one to take and detain his villain; but the cause being demanded, he gives it, because he refused, be 6 ing thereunto required, to drive his cattle. Ergo, Freemen imprisoned, without cause shewn, are in worse case than villains, that must have a cause shewn them why they are imprisoned. S. A Freeman imprisoned, with out cause, is so far from being a bond-man, that he is not so much as a man; but is indeed a dead man, and so no man. Imprisonment is in law a civil death; perdit domum, famil am, vicinos, patriam, and is to live amongst wretched and wicked men, malefactors, and the like. And that death and imprisonment was the same, he proved by an argument ab effectis, because they both produce the like im mediate effects: he quoted a book for this; 'If a man be threatened to be killed, he may avoid feofment of lands, gifts of gooods, &c. So it is if he be threatened to be imprisoned: the one is an actual, the other is a civil death. And this is the first general argument, drawn a re ipsa, from the nature of imprisonment, to which res ipsa consilium dedit.'-The second general Reason he took from his books; For. he said, he had no law, but what, by great pains and industry, he learned at his book; for, at ten years of age, he had no more h than other men of like age. And this so cond reason is, à minori ad majus: he takes it from Bracton, Minima pena corporalis est major qualibet pecuniaria." But the king him self cannot impose a fine upon any man, but it must be done judicially by his judges, per justitiarios in curia, non per regem in camera; and so it hath been resolved by all the judges of England. He quoted 8 Rd. 2. The third general Reason is taken from the number and diversity of remedies, which the laws give against imprisonment, viz. Breve de Homme replegiando; de Odio & Atia; de Habeas C pus; an appeal of imprisonment. Breve de j Manucaptione. The two latter of these are antiquated; but the writ de odio & atia is revived, for that was given by the statute of Magna Charta, cap. 29. and by statute of 4t Edw. 3. it is declared, That all statutes made against Magna Charta, are void. Now the law would never have given so many remedies, if the freemen of England might have been imprisoned at will and pleasure. The fourth general Reason is from the extent and m versality of the pretended power to i prison; for it would extend not only to the commons of this realm, and their posterities. but to the nobles of the land, and their proce nies: to the bishops and clergy of the real, and their successors. And he gave a caust why the commons came to their lordships, Commune periculum commune requirit aus lium,' Nay, it reacheth to all persons, what condition or sex, or age, soever; to judges and officers, whose attendance is neces sary, &c. without exception; and therefore st imprisonment of such extent, without reason, is against reason.The 5th general Reason is drawn from the indefiniteness of the time; pretended power being limited to no time; may be perpetual during life: and this is very therefore no man a prisoner, without his causes along with him, hoc fac & vives. And that was the first reason, à tuto, that it was not safe for the king, in regard of loss, to commit men without a cause.The 2nd reason is, That such commitments will destroy the endeavours of all men. Who will endeavour to employ himself in any profession, either of war, merchandise, or of any liberal knowledge, if he be but tenant at will of his liberty? for no tenant at will will support or improve any thing, because he hath no certain estate; ergo, to make men tenants at will of their liberties, destroys all industry, and endeavours whatsoever. And so much for these six principal Reasons, Taken A re ipsa. A minori ad majus. From the Extent and From the Indefinite- A fine. Loss of Honour. Profit. Security. Industry. hard. To cast a man into prison, nay, to close prison, and no time allotted for his coming forth, is a hard case, as any man would think that had been so used. And here he held it an unreasonable thing, that a man had a remedy for his horse or cattle, if detained, and none for his body thus indefinitely imprisoned; for a prison, without a prefixed time, is a kind of hell.-The 6th and last argument is, A Fine;' and sapiens incipit à fine;' and he wished he had begun there also. This argument he made threefold. Ab honesto. This being less honourable. Ab atili. This being less profitable. A tuto. This imprisonment, by will and pleasure, being very dangerous for the king and kingdom. 1. Ab honesto. It would be no honour to a king or kingdom, to be a king of bondmen or slaves; the end of this would be both dedecus & damnum, both to king and kingdom, that in former times hath been so renowned. 2. Ab utili. It would be against the profit of the king and kingdom, for the execution of those laws before remembered, Magna Charta. 5 Edw. 3. 28 Edw. 3. 42 Edw. These were his reasons.Here he made ano3. whereby the king was inhibited to imprison ther protestation, "That if remedy had been upon pleasure. You see, quoth he, that this given in this case, they would not have inedwas vetus querela, an old question; and now dled therewith by no means; but now that rebrought in again, after seven acts of parliament: medy being not obtained in the king's bench, I say, the execution of all these laws are ad- without looking back upon any thing that hath judged in parliament to be for the common been done or omitted, they desire some proviprofit of the king and people; and he quoted sion for the future only. And here he took octhe Roll, This pretended power being against casion to add 4 Book-Cases and authorities, the profit of the king, can be no part of his all in the point, saying, That if the learned prerogative."-He was pleased to call this a counsel on the other side, could produce but binding reason, and to say, That the wit of one against the liberties, so pat and pertinent, man could not answer it; that great men kept Oh! how they would hug and call it. 16 Hen. this Roll from being printed, but that it was 6. Tit. Monstrance de Fait, 182. by the whole equivalent in force to the printed Rolls. 3. A court, the king in his presence cannot comtuto. It is extremely dangerous to the king mand a man to be arrested, but an action of for two respects; 1, of loss; 2, of destroying the false imprisonment lieth against him that arendeavours of men. First, if he be committed resteth: if not the king in his royal presence, without an expression of the cause, though he then none others can do it: Non sic itur ad escape, albeit in truth it were for treason or astra. 20 Hen. 6. 4. Hussey reports the opifelony, yet this escape is neither felony nor nion of Markham, chief-justice to Edw. 4. that treason; but if the cause be expressed for sus- he could not imprison by word of mouth; and picion of treason or felony, then the escape, the reason, because the party hath no rethough it be innocent, is treason or felony. He medy; for the law leaves every man a remedy quoted a case in print like a reason of the law, of causeless imprisonment: he added, that not like a remittitur at the rising of the court, Markham was a worthy judge, though he fell for the prisoner traditur in ballium, quod breve into adversities at last by the lord Rivers's means, regis non fuit sufficiens causa; i. e. the king's Fortescue, chap. 18. Proprio ore nullus recommand. He quoted another famous case. gum usus est to imprison any man, &c. 4. The commons in parliament, incensed against Eliz. a blessed queen, renowned for justice and the duke of Suffolk, desire he should be com- religion.) Pl. 235. The common law bath so mitted: the lords and all the judges, whereof admeasured the king's prerogative, as hic great worthies, Prescot and Fortescue, cannot prejudice any man in his inheritance; were two, delivered a flat opinion, That he and the greatest inheritance a man hath, ought not to be committed without an especial is the Liberty of his Person, for all others cause. He questioned also the name and ety-nre accessary to it; for this he quoteth mology of the writ in question, corpus cum the Orator, Major Hæreditas, venit unicuique causa; ergo, The cause must be brought before nostrum, a jure & legibus quam a parentibus, the judge, else how can he take notice thereof? And these are the 4 authorities he cited in this Lastly, he pressed a place in the gospel, Acts point; now he propounded and answered two 25, last verse, where Festus conceives it an ab- objections; 1st. in point of state; 2ndly in the surd and unreasonable thing, to send a prisoner course held by the commons, Í. Obj. May to a Roman emperor, and not to write along not the privy-council commit, without cause with him the cause alledged against him send, shewed, in a matter of state where secrecy is those t their antient Liberties; and after some debat it was agreed to hear the king's learned counse the morrow, what they could say on the king behalf, relating to the claim of the commo against him. The arguments made use of t the attorney general, assisted by others of th king's counsel, which we find, by the Journal lasted two days, are not entered there; nor a they mentioned by Rushworth. What we fir in the former authorities, is, That when M Attorney had done, the judges of the king bench, and the rest of the judges in town we ordered to be sent for to take their opinions this great affair: and particularly to decia what the judgment was in the king's benc which the commons complained of. But w shall leave this affair for the present time to r turn to that house. required? would not this be an hindrance to his maj.'s service? Answ. It can be no prejudice to the king as to matter of state, for the cause must be of higher or lower nature. If it be for suspicion of treason, misprision of treason, or felony, it may be by general words couched; if it be for any other thing of smaller nature, as contempt, and the like, the particular cause must be shewed; and no individuum vagum, or uncertain cause to be admitted. 2. Otj. If the law be so clear as you make it, why needs this declaration and remonstrance in parliament? Answ. The subject hath in this case sued for remedy in the king's bench, by Habeas Corpus, and found none; therefore it is necessary to be cleared in parliament."Here sir Edward Coke ended his discourse: and then he made a Recapitulation of all that had been offered unto their lordships, That Debate on the King's Message to hasten t generally their lordships had been advised by Supply.] April 4. The Supply was again take the most faithful counsellors that can be, viz. into consideration. It was introduced by dead men; these can't be daunted by fear Message from the king, delivered by secreta nor muzzled by affection, reward, or hope, Cooke, to this effect: "His maj. hath again com of preferment; and therefore your lordships manded me to put you in mind, how the ey might safely believe them; particularly, their and interest of the Christian world are ca lordships had 3 several kinds of proofs. 1. upon the good or ill success of this assembl Acts of Parliaments, judicial precedents, good He also graciously taketh notice of that whic reasons. 1. You have had many antient acts is in agitation amongst us, touching the fre of parliament in the point, besides Magna dom of our Persons, and Property of ou Charta; that is, 7 acts of parl. which indeed Goods: and that this particular care (whic are 37, Magna Charta being confirmed 30 he no way misliketh) may not retard our res times; for so often have the kings of England | lution for the general good, he willeth us chea given their royal assents thereunto. 2. Judicial fully to proceed in both, and to express ou precedents of grave and reverend judges, in readiness to supply his great occasions; upr terminis terminantibus, that long since depart-assurance that we shall enjoy all our rights an ed the world, and they were many in number. Precedents being 12, and the judges 4 of a bench, made 4 times 12 and that is 48 judges. 3. You have, as he termed them, vividas rationes, manifest and apparent reasons. Towards the conclusion, he declared, That they of the commons have, upon great study and serious consideration, made a great manifestation unanimously, nullo contradicente, concerning this great Liberty of the Subject; and have vindicated and recovered the body of this fundamental liberty, both of their lordships and themselves, from shadows; which some times of the. Sir Benj. Rudyard spoke as follows: T day, are long, sometimes short, and sometimes dangers and necessities of our present stat long again; and therefore we must not be Mr. Speaker, are so obvious to every man guided by shadows: and they have transmitted eye and understanding; and therefore so w to their lordships not capita rerum, heads or known, as to make a large and particular briefs; for these compendia are dispendia; hearsal of them would rather astonish but the Records at large, in terminis terminan-judgments, than refresh our memory: wher tibus.' And so he concluded "That their lordships are involved in the same danger, and therefore, ex congruo & condigno, they desired a conference; to the end their lordships might make the like Declaration as they had done, ⚫ commune periculum commune requirit auxilium;' and thereupon take such further course, as may secure their lordships and them, and all their posterity, in enjoying of their antient, undoubted, and fundamental liberties." April 9. After the foregoing Report was made, the lords took into consideration the liberties, with as much freedom and securi in his time, as in any age heretofore, under best of our kings: and whether we shall thin fit to secure ourselves herein, by way of bili otherwise, so as it be provided for with du respect of his honour and the public goo (whereof he doubteth not but that we will careful) he promiseth, and assureth you, that! will give way unto it; and the more cop dence you shall shew in his grace and goodnes the more you shall prevail to obtain your d sires,"-Hereupon, fore, in short and in gross, I will only reflect the desperate condition of the king's uncle, king of Denmark; engaged from hence, (ev to the hazard of his own kingdom) in the quart of that royal and gallant lady his majesty sister, for the recovery of her and her childre patrimony, with the preservation and re-est blishment of our religion in those countries; that the king is bound in nature, in polic and in religion, to relieve and assist both persons and the cause to the utmost of |