also he added, an opinion he found in a Journal | To that purpose, besides the words of the whole in the House of Commons of 13 Jac. wherein | frame of this Resolution of the Judges, as it is sir Edward Coke speaking to a Bill preferred for the explanation of Magna Charta touching imprisonment, said in the same house, That one so committed could not be inlarged by the | law, because it might be matter of state for which he was committed. And amongst these objections of the other nature also, he spake of the confidence that was shewed in behalf of the House of Commons: and he said, it was not confidence on either part could add any thing to the determination of the question: but if it could, that he had as much reason of confidence for the other side against the Resolution of the House of Commons, grounding himself upon the force of his objections, which, as he conceived, had so weakened the arguments of the House of Commons. To this a reply was made; and first it was said to the lords on the behalf of the House of Commons, That notwithstanding any thing yet objected, they were upon clear reason still confident of the truth of their first Resolution, grounded upon so just examination, and deliberation taken by them. And it was observed to the lords also, that their confidence herein was of another nature, and of greater weight, than any confidence that could be expressed by Mr. Attorney, or whomsoever else being of his majesty's counsel learned. To which purpose the lords were desired to take into their memories the difference between the present qualities of the Gentlemen that spake in behalf of the House of Commons, and of the King's learned Counsel in their speaking there, howsoever accidentally they were both men of the same profession: for the King's Counsel spake as counsel perpetually retained by fee, and if they made glosses or what advantageous interpretation soever for their own part, they did but what belonged to their place and quality, as Mr. Attorney had done. But the Gentlemen that spake in behalf of the House of Commons, came there, bound on the one side by the trust reposed in them by their country that sent them, and on the other side by an oath taken by every of them before he sit in the house, to maintain and defend the Rights and Prerogatives of the Crown: so that even in the point of confidence alone, those of them that speak as retained counsel by perpetual fee, and those that by their place being admitted to speak, are bound to utter nothing but truth, both by such a trust and such an oath, were no way to be so compared or counterpoised, as if the one were of no weight than the other. more And then the Objections before mentioned were also answered. For that of the Resolution of all the Judges of England in 34 Eliz. it was shewed, that plainly it agreed with the Resolution of the House of Commons: for although indeed it might have been expressed with more perspicuity, yet the words of it, as they are, sufficiently shew the meaning of it to be no otherwise. VOL. III. in the copy transcribed out of the L. C. Justice Anderson's Book, written in his own hand, which book was here offered to be shewed in the behalf of the house of commons; it was observed, that the words of the first part of it shew plainly, that all the Judges of England then resolved, that the prisoners spoken of in the first part of their Resolution were only prisoners committed with cause shewed; for they only say they might not be delivered by any court without due trial by law, and judgment of acquittal had; which shews plainly they meant that by trial and acquittal they might be delivered. But it is clear that no trial or acquittal can be had, where there is not some cause laid to their charge, for which they ought to stand committed. Therefore in that part of the Resolution such prisoners are only meant as are committed with cause shewed, which also the Judges in that Resolution expressly thought necessary, as appears in the second part of their Resolution, wherein they have these words: If upon the return of their Habeas Corpus, the cause of their commitIment be certified to the Judges, as it ought to be, &c.' By which words they shew plainly, that every return of a commitment is insufficient that hath not a cause shewed of it. And to that which Mr. Attorney said, as if the cause were sufficiently expressed in generality, if the king's command or the council's were expressed in it, as if that were meant in the resolution for a sufficient general cause; it was answered, That it was never heard of in law, that the power or person that committed the prisoner was understood for the causa captionis' or causa detentionis,' but only the reason why that power or person committed the prisoner. As also in common speech, if any man ask why or for what cause a man stands committed, the answer is not, that such a one committed him, but his offence or some other cause is understood in the question, and is to be shewed in the answer. But to say that such a one committed the prisoner, is an answer only to the question, who committed him? and not why, or for what cause he stands so committed? Then for that of the copy of the Report, in 13 Jac. shewed forth by Mr. Attorney, it was answered by the Gentlemen of the House of Commons, That the report itself which had been before seen, and perused among many other things at a committee made by the house, was of slight or no authority, for that it was taken by one, who was at that time a young student, and as a reporter in the King's Bench, and there was not any other report to be found that agreed with it. Secondly, Although the reports of young students, when they take the words of Judges as they fall from their mouths at the Bench, and in the same person and form as they have spoken, may be of good credit; yet in this case there was not one word so reported: but in truth there being three cases at a time in the King's-Bench, one Roswell's case, L Allen's, and Saltonstall's case, every of which had something of like nature in it, the student having been present in the court, made up the frame of one report or case out of all three in his own words, and so put it into his Book: so that there is not a word in the report, but it is framed according to the student's fancy, as it is written; and nothing is expressed in it, as it came from the mouth of the Judges, otherwise than his fancy directed him. they were as their records. But for any particular man's opinion, noted in any of them, it was so far from being of any authority with them, that in truth no particular opinion is at all to be entered in them, and that their clerk offends, whenever he doth to the contrary. And, to conclude, no such opinion whatsoever can be sufficient to weaken the clear law comprehended in these resolutions of the house of commons, grounded upon so many acts of parThirdly, There are in the report plain fals- liament, so much reason of the common-law, hoods of matter of fact, which are to be attri- and so many precedents of record, and the rebuted either to the Judges or to the reporter. solution of all the judges of England; and It is most likely by all reason, that they pro- against which not one law, written or unwritten, ceeded from the Reporter's fault; howsoever, not one precedent, not one reason hath been these matters of falshood shew sufliciently that brought, that makes any thing to the contrary. the credit of the rest is of light value. It is And thus ended the next day of the Confersaid in the report, that Ilarecourt being comence desired by the lords, and had by a Committed by the council, was bailed, in 40 Eliz.mittee of both houses. upon a privy-seal or a letter, whereas in truth there is no such thing. And it is said there, that kind of letters are filed in the crown-office, whereas in truth there was not any such kind of letters filed there in any case whatsoever. That Resolution of the Judges in 34 Eliz. is mis-cited there, and made in 36 Eliz. And it is said there, that by that Resolution, a prisoner returned to be committed by the command of the king, might not at all be delivered by the court; whereas no such thing is comprehended in that Resolution. Serjeant ASHLEY'S ARGUMENT, seconding Mr. : I hope it will be neither offensive nor tedious to your lordships, if I said somewhat to second Mr. Attorney which I the rather desire, because yesterday it was taken by the Gentlemen, and argued on the behalf of the Commons, that the cause was as good as gained by them, and yielded by us, in that we acknowledged the statute of Magna Charta, and the other subsequent Statutes, to be yet in force: for on But that which is of most moment is, that that they enforced this general conclusion; howsoever the truth of the report were, yet That therefore no man could be committed, the opinion of the Judges being sudden, and or imprisoned, but by due process, presentwithout any debate had of the case, is of light|ment or indictment.' Which we say is a moment: for, in difficult points especially, the Non sequitur upon such our acknowledgment; most grave and learned men living may on the for then it would follow by necessary consesudden let fall (and that without any disparage-quence, that no imprisonment could be justiment to them) such opinions as they may well, fied but by process of law, which we utterly and ought to change upon further inquiry, exa- deny. For in the cause of the Constable cited mination, and full debate had before them, and by Mr. Attorney, it is most clear, that by the mature deliberation taken by them. Now ancient law of the land a constable might er plainly in that of 13 Jac. there is not so much officio, without any warrant, arrest, and restrain as a pretence of any debate at the bar or a man to prevent an affray, or to suppress it. bench. All that is reported to have been, isAnd so is the authority 38 Hen. 8, Brook's Abreported as spoken of the sudden. And can any man take such a sudden opinion to be of value against solemn debates and mature deliberations since had of the point? And indeed this great point, and all circumstances belonging to it, have within this half year, been so fully examined and searched into, that it may well be affirmed, that the most learned man whatsoever that hath now considered of it, hath within that time, or might have, learned more reason of satisfaction in it, than ever before he met with. Therefore the sudden opinion of the Judges to the contrary is of no value here, which also is to be said of that opinion obviously delivered in the commons house in 18 Jac. as Mr. Attorney objected out of the Journal of the house. But besides, neither was the truth of that report of that opinion in the Journal any way acknowledged; for it was said in behalf of the house of commons, that their Journals were for matters of Orders and Resolutions of the house of such authority, as that stract. So may he, after the affray, apprehend and commit to prison the person that hath wounded a man that is in perl of death, and that without warrant or process; as it is in 38 E. 3, fol. 6. Also any man that is no Officer may apprehend a felon without writ, or warrant, or pursue him as a wolf, and as a common enemy to the Commonwealth, as the Book is 14 Hen. 3, fol. 16. So might any one arrest a nightwalker, because it is for the common profit, as the reason is given 4 Hen. 7, fol. 7. In like manner the Judges in these several Courts may commit a man, either for contempt or misdemeanor, without either process or warrant, other than Take him Sheriff,' or 'Take him Marshal, or Warden of the Fleet.' And the adversaries will not deny, but if the king will alledge cause, he may commit a man ‘per mandatum' as the Judges do, without process or warrant.-And various are the cases that may be instanced, wherein there may be a not be able to do justice in all cases within his own dominions. lawful commitment without process. Wherefore I do positively and with confidence affirm, that if the imprisonment be lawful, whether it be by process, or without process, it is not pro-mit, it must needs follow, that either the king hibited by the law. Which being granted, then the question will aptly be made, Whether the King or Council may commit to prison per legem terræ,' were only that a part of the municipal law of this realm, which we call the Common-Law? For there are also divers jurisdictions in this kingdom, which are also reckoned the law of the land. If then the king nor his council may not com must have no council of state, or having such a council, they must have no power to make orders, or acts of state; or if they may, they must be without means to compel obedience to those acts: and so we shall allow them jurisdiction, but not compel obedience to those acts: but not correction, which will be then as fruitless as the command. Frustra potentia quæ nun6 quam redigitur in statutuin? Whereas the very act of Westminster the first, shews plainly that the king may commit, and that his commitment is lawful, or else that act would never have declared a man to be irrepleviable when he is committed by the command of the king, if the law-makers had conceived that his commitment had been unlawful. And Divine Truth informs us, that the kings The Admiral's jurisdiction is also ler terræ, have their power from God, the Psalmist callor things done upon the sea: but if they ex-ing them the children of the Most High;' ceed their jurisdiction, a prohibition is awarded upon the Statute of nullus liber homo; by which appears that the statute is in force, as we have acknowledged. As in Cawdry's Case in Coke's 5th report, fol. 1. the first ecclesiastical law is held the law of the land, to punish blasphemies, schisms, heresies, simony, incest, and the like, for a good reason there rendered, viz. That otherwise the king should not have power to do justice to his subjects in all cases, nor to punish all crimes within his kingdom. The Martial Law likewise, though not to be exercised in times of peace, when recourse may be had to the king's courts, yet in times of invasion, or other times of hostility, when an army-royal is in the field, and offences are committed, which require speedy reformation, and cannot expect the solemnity of legal Trials; then such imprisonment, execution, or other justice done by the law-martial is warrantable, for it is then the law of the land, and is jus gentium; which ever serves for a supply in the defect of the common law, when ordinary proceeding cannot be had. And so it is also in the case of the Law of the Merchant, which is mentioned 13 Edw. 4, fol. 9, 10, where a Merchant-stranger was wronged in his goods, which he had committed to a carrier to convey to Southampton, and the carrier imbezzled some of the goods: for remedy whereof the Merchant sued before the council in the Star-Chamber for redress. It is there said thus: Merchant-strangers have by the king safe-conduct for coming into this realm; therefore they shall not be compelled to attend the ordinary trial of the common law, but, for expedition, shall sue before the king's council, or in Chancery, 'de die in dicun ' et de horâ in horam;' where the case shall be determined by the law of merchants. Shall we which is in a more special manner understood In the like manner it is in the Law of State: when the necessity of state requires it, they do and may proceed to natural equity; as in those other cases where the law of the land provides not, there the proceeding may be by the law of natural equity and infinite are the occurrences of state, unto which the common law extends not. And if these proceedings of state should not also be accounted the law of the land, then we do fall into the same inconveniency mentioned in Cawdry's case, that the king shoulding. I will instance but one; if a king employ an ambassador to a foreign country or state, with instructions for his negociation, and he pursue not his instructions, whereby dishonour and damage may ensue to the kingdom, is not this committable? And yet the particular of his instruction, and the manner of his miscarrying, is not fit to be declared to his keeper, or by him to be certified to the Judges, where it is to be opened and debated in the presence of a great audience. I therefore conclude, for offences against the State, in case of State Government, the king and his council have lawful power to punish by imprisonment, without shewing particular cause, where it may tend to the disclosing of State Government. It is well known to many that know me, how much I have laboured in this law of the subjects liberty very many years before I was in the king's service, and had no cause then to speak, but to speak ex animo; yet did I then maintain and publish the same opinion which now I have declared concerning the king's supreme power in matters of state, and therefore cannot justly be censured to speak at this present only to merit of my master. But if I may freely speak my own understanding, I conceive it to be a question too high to be determined by any legal direction; for it must needs be an hard case of contention, when the conqueror must sit down with irreparable losses, as in this case. If the subject prevails, he gains liberty, but loseth the benefit of that State Government, by which a monarchy may soon become an anarchy; or if the State prevails, it gains absolute sovereignty, but loseth subjects: not their subjection, for obedience we must yield, though nothing be left us but prayers and tears, but yet loseth the best part of them, which is their affections, whereby sovereignty is established, and the crown firmly fixt on his royal head. Between two such extremes there is no way to moderate, but to find a medium for the accommodation of the difference; which is not for me to prescribe, but only to move your lordships, to whom I submit. After Mr. Serjeant's speech ended, my Lord President said thus to the Gentlemen of the House of Commons; That though at this free conference, liberty was given by the Lords to 'the king's counsel to speak what they thought fit for his majesty, yet Mr. Serjeant Ashley had no authority, or direction from them to speak in that manner he had done.' And he was committed into custody, and afterwards, being sorry for any hasty expression he might have used, was discharged. The OBJECTIONS of the King's Counsel, with the ANSWERS made thereunto, at the two Conferences touching the same matter. It was agreed by the Attorney-General, sir Robert Heath, that the seven Statutes urged by the Commons were in force, and that Magna Charta did extend most properly to the king. But he said, 1. That some of them are in general words, and therefore conclude nothing, but are to be expounded by the precedents; and others that be more particular, are applied to the suggestions of subjects, and not to the king's command simply of itself. Hereunto it was answered, That the Statutes were as direct as could be, which appeareth by the reading of them; and that though some of them speak of suggestions of the subjects, yet others do not: and they that do, are as effectual, for that they are in equal reason, a commitment by the command of the king, being of as great force, when it moveth by a suggestion from a subject, as when the king taketh notice of it himself; the rather for that kings seldom intermeddle with matters of this nature, but by information from some of their people. 2. Mr. Attorney objected, that per legem terræ in Magna Charta, (which is the foundation of this question) cannot be understood for process of the law and original writs; for that in all criminal proceedings no original writ is used 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 hard the king should not have the power of a constable. And the statute cited by the commons, makes process of the law and writ original, to be all one. ed. The answer of the Commons to this objection was, that they do not intend original writs only by law of the land, but all other legal process, which comprehends the whole proceedings of law upon cause, other than trial by jury, Judicium parium, unto which it is opposThus much is imported ex vi termini out of the word process; and by the true acceptation thereof in the statutes that have been used by the commons to maintain the declaration, and most especially the statutes of 25 Ed. 5, cap. 4, where it appeareth that a man ought to be brought in to answer by the course of the law, having former mention of process made by original writ. 6 And in 28 Ed. 3, cap. 3, 'by the course of the law' is rendered by due process of the law. And 36 Ed. 3, Rot. Parl. n. 20, the petition of the commons saith, that no man ought to be imprisoned by special command without indictment or other due process to be made by the law,' 37 Ed. 3, cap. 18, calleth the same thing process of the law;' and 42 Ed. 3, cap. 3, stileth it by due process and writ original, where the conjunctive must be taken for a disjunctive, which change is ordinary in an exposition of statutes and deeds, to avoid inconveniences, to make it stand with the rest; and with reason, as it may be collected, by the law of the land' in Magna Charta, by the course of the law' in 25 Ed. 3, by the due process of law' in 28 Ed. 3, other due process to be made by the law' in 36 Ed. 3, 'process of the law' in 37 Ed. 3, and by due process and writ original' in 42 Ed. 3, are meant one and the same thing; the latter of these statutes referring always to the former, and that all of them import any due and regular proceedings of law upon a cause · city is a civil law; as when a man names The Poet, the Grecians understand Homer, the Latinists, Virgil. 2. Admit per legem terræ extend to all the laws of the land, yet a man must not be committed by any of them, but by the due proceedings that are executed by those laws, and upon a cause declared. other than the Trial by Jury. And this ap- And thereupon Mr. Serjeant Ashley offered an interpretation of them thus: namely, That there were divers laws of this realm, as the Common Law, the Law of the Chancery, the Ecclesiastical Law, the Law of the Admiralty or Marine Law, the Law of the Merchants, the Martial Law, and the Law of State; and that these words " per legem terræ,' do extend to all these laws. To this it was answered, That we read of no Law of State, and that none of these laws can be meant there, save the Common Law, which is the principal and general law, and is always understood by way of excellency, when mention is made of the law of the land generally: and that though each of the other laws, which are admitted into this kingdom by custom or act of parliament, may justly be called a law of the land, yet none of them can have the pre-eminence to be stiled the law of the land. And no Statute, Law-Book, or other Authority, printed or unprinted, could be shewn, to prove that the law of the land, being generally mentioned, was ever intended of any other than the Common Law; and yet even by these other laws, a man may not be committed without a cause expressed. But it standeth with the rule of other legal expositions, that 'per legem terræ,' must be meant the Common Law, which is the general and universal law by which men hold their inheritances; and therefore if a man speak of escuage generally, it is understood, as Littleton observeth, sect. 99, of the incertain escuage, which is a knight's service tenure, for the defence of the realm, by the body of the tenant in time of war, and not of certain escuage, which giveth only a contribution in money, and no personal service. And if a Statute speak of the King's Courts of Record, it is meant only of the four at Westminster by way of excellency, Coke's 6 Rep. 20, Gregory's case. So the Canonists by the Excommunication simply spoken, do intend the greater Excommunication. And the Emperor in his Institutions saith, That the Civil Law being spoken generally, is meant of the Civil Law of Rome, though the law of every Again, it was urged, That the king was not bound to express a 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. And therefore the Statutes cannot be intended to restrain all commitments, unless a cause be expressed; for that it would be very inconvenient and dangerous to the state, to Hereunto it was replied by the Commons, That all danger and inconvenience may be avoided by declaring a general cause, as for treason, suspicion of treason, misprision of treason, or felony, without specifying the particular; which can give no greater light to a confederate, than will be conjectured by the very apprehension upon the imprisonment, if nothing at all were expressed. It was further alledged, That there was a kind of contradiction in the position of the Commons, when they say, a party committed without a cause shewed, ought to be delivered or bailed; bailing being a kind of imprisonment; delivery a total freeing. To this it hath been answered, that it hath always been the discretion of the Judges, to give so much respect to a commitment by the command of the King or the privy-council, (which are ever intended to be done in just and weighty causes) that they will not presently set them free, but bail them to answer what shall be objected against them on his majesty's behalf; but if any other inferior officer do commit a man without shewing cause, they do instantly deliver him, as having no cause to expect their leisure. So the delivery is applied to an imprisonment by the command of some inean minister of justice; bailing, when it is done by the command of the king or his council. It was argued by Mr. Attorney, that bailing was a grace and favour of a court of justice, and that they may refuse to do it. This was agreed to be true in divers cases; as where the cause appears to be for Felony, or other crimes expressed, for that there is another way to discharge them in some convenient time by their trial; and yet in these cases, the constant practice hath been anciently and modernly to bail men: but where no cause of the imprisonment is returned, but the command of the king, there is no way to deliver such person 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 great offender; for |