8. The Case of the Five Knights, before the Court of King's Bench.
[Nov. 15-28, 1627. State Trials, iii. 114-139. See Hist. of Engl. vi. 213.]
A. Return of the Warden of the Fleet to the Writ of Habeas Corpus.
Responsio Johannis Liloe, guardiani Prisonae de le Fleet.
Ego Johannes Liloe [&c.] serenissimo domino regi apud Westminster. Post receptionem hujus brevis quod in hac schedula est mentionatum, certifico quod Walterus Erle miles, in eodem brevi nominatus, detentus est in prisona de le Fleet sub custodia mea praedicta, per speciale mandatum domini regis mihi significatum per warrantum dominorum duorum et aliorum de privato concilio perhonorabilissimo dicti domini regis, cujus quidem tenor sequitur in haec verba:
Whereas Sir Walter Erle, 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 Whitehall, 7 Novembris 1627. Thomas Coventry C.S., Henry Manchester, Thomas Suffolk, Bridgwater, Kelly, R Dunelm., Thomas Edmunds, John Coke, Marlborough, Pembroke, Salisbury, Totnes, Grandison, Gulielm. Bath and Wells, Robert Naunton, Richard Weston, Humphry May.
To the Guardian of the Fleet or his deputy.
Et haec est causa detentionis praedicti Walteri Earl sub custodia mea in prisona praedicta. Attamen corpus ejusdem Walteri coram domino rege ad diem et locum praedictum, post receptionem brevis praedicti paratum habeo prout istud breve in Be exiget et requiret.
B. Serjeant Bramston's Argument.
May it please your Lordship, I shall humbly move upon this return in the behalf of Sir John Heveningham, with whom I am of Counsel it is his petition that he may be bailed from his imprisonment... 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... For the matter and substance of the return, it is not good, because there ought to be a cause of that imprisonment. This writ [of Habeas Corpus] is the means, and the only means, that the subject hath in this and such-like case 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 ... 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, then 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 Edw. 3, c. 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....
Mr. Selden's Argument.
My Lords, I am of counsel with Sir Edmund Hampden.... I shall humbly move you that this gentleman may also be hailed; for under favour, my Lord, there is no cause in the return why he should be any farther imprisoned and restrained of his liberty.... 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.... 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.... 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 ... 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 Lords, 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 Lordships' 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 hut, as we use to say, ' according to the law' which leaves the matter very uncertain; and [if] 'per speciale mandatum &c.' be within the meaning of these words 'according to the law,' then this Act had done nothing.
C. Attorney-General Heath's Argument. May it please your Lordship, against this return the counsel of the gentlemen have ... divided their objections into two main points, the one the form, the other the matter....
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: [and the question is] whether in this case they should be bailable or not in this Court.... The King cannot command your Lordship, or any other Court of Justice, to proceed otherwise than 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 absoluta 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 Lordships, 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 we generally, not as subjects only, but as lawyers, who govern themselves by the rules of the law, not submit to his command, but make enquiries 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 there are some errors 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 of 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 [&c.],' and when it is ' pro certis causis [&c.]' ... And, my Lord, unless the return doth open to you the secrets of the commitment, your Lordship cannot judge whether the party ought by law to be remanded 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 ... this Court in its jurisdiction were proper to try these criminal causes, and your Lordship doth proceed in them, although the commitment be 'per speciale mandatum domini regis ' ... But if there be no cause expressed, this Court hath always used to remand 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 ground of argument upon this case begins with Magna Carta ... No freeman can be imprisoned but by ' legale judicium parium suorum vel 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 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 our statutes.
[Stat. 25 Edw. III, cap. 4; 28 Edw. III, cap. 3; and other Statutes, recited and examined.].
And now, my Lord, we are where we were, to find out the true meaning of Magna Carta for there is the foundation of [our] case; all this that hath been said concerneth other things, and is nothing to the thing in question. There is not a word either of the commitment of the King, or commandment of the Council, in all the statutes and records....
The next thing I shall offer to your Lordships is this ... it is the resolution of all the judges, which was given in the 34th of Queen Elizabeth. It fell out upon an unhappy occasion, which was thus. The judges they complained that sheriffs and other officers could not execute the process of the law as they ought, for that the parties on whom such process should 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 ... This, my Lord, was the resolution of all the judges and [the] barons of the Exchequer, and not [of] some great one.
Now I will apply myself to that which has been enforced by the counsel on the other side, which was the reason, that the subject hath interest in this case. My Lord, I do acknowledge it, but I must say that the sovereign hath great interest in it too. And sure I am that the first stone of sovereignty was no sooner laid, but this power was given to the sovereign. If you ask me whether it be unlimited My Lord, I say it is not the question now in hand; but the common law, which hath long flourished under the government of our King and his progenitors, kings of this realm, hath ever had that reverent respect of the sovereign, as that it hath concluded the King can do no wrong.... 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 the courts of judicature have ever rested satisfied therewith: they would not search into it. My Lords, there be arcana Dei, et arcana imperii, ... 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.... It may be divers men do suffer wrongfully in prison, but therefore shall all prisoners be delivered? That were a great mischief.... 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 1 No: we may only say, He will not do this.
... I shall conclude what I shall say in this case to answer the fear rather than the just ground of them that say this may be a cause of great danger with the words of Bracton [lib. i, cap. 8]. Speaking of a writ for wrong done by the King to the subject touching land, he hath these words: 'Si autem ab eo petatur (cum breve non currat contra ipsum), locus erit supplicationi, quod factum suum corrigat et 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.' ... 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 a 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.
D. Lord Chief Justice Hyde's Judgment.
... The exceptions which have been taken to this return were two; the one for the form, the other for the substance.
... 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 [the Warden] 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.... [After examination of precedents] Then the precedents are all against you every one of them, and what shall guide our judgments, since there is nothing alleged in this case but precedents 1 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.... We have looked upon that precedent that was mentioned by Mr. Attorney the resolution of all the judges of England in 34 Eliz.... The question now is, whether we may deliver these gentlemen or not ... and this resolution of all the judges teacheth us; and what can we do but walk in the steps of our forefathers? ... 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.
 The writ is in the ordinary form.
 I.e. bailable.
 See Hist. of Engl. 1603-1642, vi. 244.
 Printed text, ' by.'
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