The Constitutional Documents of the Puritan Revolution. Samuel Rawson Gardiner
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 Ref. 024 . . . This, my Lord, was the resolution of all the judges and [the] barons of the Exchequer, and not Ref. 025 [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? 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? 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.
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