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Mr. Selden's Speech against Illegal Arrests.
Your lordships have heard from the gentleman that spoke last, a great part of the grounds upon which the house of commons, upon mature deliberation, proceeded to that clear resolution, touching the right of the liberty of their persons. The many acts of parliament, which are the written laws of the land, and are expressly to the point, have been read and opened, and such ob. jections as have been by some made unto them, and objections also made out of other acts of parliament, have been cleared and answered. It may seem now perhaps, my Lords, 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 house of 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 precedents concerning this great point either way, and have been no less careful to 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 solemn debate on the point.
This point that concerns precedents, the house of commons have commanded me to present to your lord. ships ; which I shall as briefly as I may, so I do it faithfully and perspicuously ; to that end, my lords, before I come to the particulars of any of those precedents, I shall first remember to your lordships, that which will seem as a general key for the opening and true appre. hension of all those on record ; without which key, no man, unless he be versed in the entries and course of the king's bench, can possibly understand.
* See before, Page 22.
In all cases my lords, where any right or liberty be. longs to the subject by any positive law, written, or un. written, if there were not also a remedy by law, for enjoying or regaining of this right or liberty, when it is violated or taken from him, the positive law were most vain, and to no purpose ; and it were to no purpose for any man to have any right in any land, or other inheritance, if there were not a known remedy ; that is, an action or writ, by which, in some court of ordinary justice, he might recover it : and in this case of right of liberty of person, if there were not a re. medy in the law for regaining it when it is restrained, it were to no purpose to speak of laws that ordain it should not be restrained. The writ of habeas corpus, or corpus cum causa, is the highest remedy in law for any 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 privy council, without shewing the cause of commitment; and if any man be so imprisoned by any such command or otherwise whatsoever, through England, 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 writ is to be granted to him, and ought not to be denied, and is directed to the keeper of the prison, in whose custody the prisoner remains ; commanding him, that after a certain day he bring in the body of the prisoner, cum causa detentionis, and sometimes, cum causa captionis ; and he, with his return filed to the writ, bringeth the prisoner to the bar at the time appointed, and the court judgeth of the sufficiency or insufficiency of the return; and if they find hiin bailable, committitur marescallo the proper officer
belonging to the court, and then afterwards traditur in ballium ; but if, upon the return of the habeas corpus, it appear 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 quousque, &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 house of commons, touching the enlargement of a man com. mitted by command of the king, or privy council, or any other, without cause shewn of such commitment which resolution, as it is grounded upon acts of parliament already shewn (the reason of the law of the land being committed to the charge of another to open unto you,) so it is strengthened by many precedents of record.
He then produced twelve precedents, full and directly in the point to prove, that persons so committed ought to be delivered upon bail; which were distinctly opened and read to their lordships. Then he also offered to their consideration other kind of precedents, which were solemn resolutions of judges ; things not of record, but yet remaining in authentic copies ; which precedents and authorities we omit for the length thereof.
He then proceeded, and said, The house of commons (desiring with all care to inform themselves fully of the truth of the resolution of the judges in the 34th year of the late queen, cited in the case of Sir John Heveningham, by the king's counsel, as arguments against his not being bailed) have got into their hands a book of select cases, collected by the reverend and learned judge, chief justice Anderson, all written with his own hand, which he caused to be read. These precedents, saith he, do fully resolve for the maintenance of the ancient and fundamental point of liberty of the person, to be regained by habeas corpus when any one is imprisoned.
Then he concluded, that having thus gone through the charge committed to him by the house of 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.
Created Earl of Warwick, and Lord Rich of Leeze, by
James 1.) I have given the following speech on the right of the crown to im.
prison the subject without any reason shewn, for its good sense and logcial acuteness.
The Earl of Warwick's Speech. My Lords, I will observe something out of the laws, wherein this liberty of the subject's person is founded, and something out of the precedents which have been alledged ; as to magna charta, and the rest concerning these points, they are acknowledged by all to be now in force ; that they were made to secure the subjects from wrongful imprisonment; and that they concern the king as much, or rather more, than the subject. Well then, besides magna charta, and those six other acts of parliament in the very point, we know that magra charta itself has been at least thirty times confirmed ; so that no , at this time, we have thirty-six or thirty-seven acts of
parliament to confirm this liberty, although it was made a matter of derision the other day in this house.
One is that of 36 Edward III. No. 9, and another in the same year, No. 20, not printed, but yet as good as those that are ; and that of 42 Edward III. Cap. 3, so express in the point, (especially the petition of the commons that year, which was read by Mr. Littleton, with the king's answer, so full and free from all exception, to which I refer your Lordships,) that I know not how any thing in the world can be more plain.
Now, therefore, if in parliament we shall make any doubt of that which is so fully confirmed by parliament, and in a case so clear, go about by new glosses to alter these old and good laws, we shall not only forsake the steps of our ancestors, who, in cases even of small importance, would answer nolumus leges Angliæ mutari, but we shall yield up and betray our right in the greatest inheritance the subjects of England have; and that is the laws of England.
Truly, I wonder how any man can think that this house (though no lawyers) can admit of such a gloss upon a plain text, as should overthrow the very end and design of the law; for whereas the law of magna charta is, That no freeman shall be imprisoned, but by lawful judgment of his peers, or the law of the land; it has been insisted on by some, that by these words, the law of the land, it is to be understood, that the king hath power to commit without shewing any cause; which is an exposition, not only expressly contrary to other acts of parliament, and those expressly before cited, but against common sense.
Mr. Attorney confesseth this law concerns the king. Why then, where the law saith, the king shall not commit but by the law of the land, the meaning must be, (as Mr. Attorney would have it) that the king must not commit, but at his own pleasure and shall we think that our ancestors were so foolish as to hazard their sons and estates, and labour so much to get a law, and Vol. I,