point of view the legal arguments which the supporters of the prerogative used in the cases which came before the courts. I shall consider these arguments under the four heads of Legislation, The Liberty of the Subject, Fiscal Claims, and The Defence of the Realm.

Legislation.

Upon this topic a very few words will suffice. We have seen that the Tudors assumed a certain amount of latitude in the issue of proclamations; but that they used their power so wisely that Parliament raised no objections to its exercise. The use which James I made of this prerogative called the attention of Parliament to it; and, as the extent to which the king had a free discretion was as doubtful as the extent of many of his other prerogatives, the judges were consulted. Their answer is, as we have seen, contained in the Case of Proclamations; 2 and though that case is reported in one of the later parts of Coke's Reports, the authority of which is not equal to that of the earlier parts,3 the correctness of the law there laid down has never been doubted.* Indeed, the rules there set out followed directly from the legislative supremacy of Parliament which was then fully established. But undoubtedly they confined the prerogative of the crown within much narrower limits than those within which it had been confined during the Tudor period. Naturally these limits were not observed either by James I. or by Charles I.;6 and Charles I. was practically obliged to admit this in a somewhat obscure declaration which he issued in 1640-1641. The later Stuarts did not attempt to offend in this way-largely because the abolition of the Star Chamber had deprived them of the means of enforcing proclamations which went beyond the limits laid down by the Case of Proclamations.

The Liberty of the Subject.

8

Upon the general question of the liberty of the subject, and upon the remedies which the law has provided at different periods

1 Vol. iv 104.

2 Ibid 296-297.

3 Vol. v 462.

6 Above 27 and n. 6.

4 Ibid n. 5.

5 Vol. iv 99-102, 182, 185-186, 201. S.P. Dom. 1640-1641, 443-444, cccclxxv1 107-"If since the beginning of our reign, proclamations have been more frequent than in former times, or have extended further than is warranted by law, we take it in good part to be informed thereof by our loving subjects, and take it to heart as a matter of great consequence; and therefore we will confer with our Council, with our judges and learned counsel, and will cause such our proclamations as are past to be reformed, when cause shall be found, and for future time will provide that none be made but such as shall stand with the laws and statutes of the kingdom; and such as in case of necessity our progenitors have by their prerogative royal used in times of the best and happiest government of this kingdom.'

8 Vol. iv 296-297.

for its protection, I shall speak in the second Part of this Book.1 Here I shall deal only with that part of the topic which is directly concerned with the extent of the prerogative of the crown to commit its subjects to prison.

3

There can be no doubt that under the Tudors the crown had assumed a very large discretionary power of imprisoning its subjects.2 There can be no doubt also that, in the critical times through which the nation was passing, it was a salutary and necessary power. Thus we are not surprised to find that it was not questioned in Parliament, and that it was recognized, though in somewhat obscure terms, by the common law courts. The declaration of the judges upon this matter is contained in Anderson's Reports; and the correctness of the report, and its proper interpretation, were exhaustively discussed in Darnel's Case, and in the Parliamentary debates which followed upon the decision in that case. I shall therefore begin by stating the substance of this declaration from the report in Anderson, which is the version of which Coke approved when this case was debated in Parliament in 1628. It runs as follows: The judges, addressing the Chancellor and Treasurer, complained that divers of the queen's subjects had been detained in prison by the command of noblemen or counsellors, contrary to law; that sundry persons had been imprisoned for suing actions at law, and, when writs had been issued to deliver them, no good cause of detention had been returned, and they had accordingly been released; that persons so released had been again committed to prison to unknown places, so that no writ to deliver them could be served; that divers officials had been committed for serving the queen's writs; that persons had been compelled by unlawful imprisonment to abandon their actions at law-"all which upon complaint the judges are bound by office and oath to relieve and help." They then proceed: "And where it pleased your lordships to will divers of us to set down in what cases a prisoner, sent to custody by her majesty, [or] her council, . . . are to be detained in prison, and not to be delivered by her majesty's courts or judges; we think that if any person be committed by her majesty's command, from her person, or by order from the council board; or if any one or two of her council commit one for high treason; such persons so in the case before committed, may not be delivered by any

1 Pt. II. c. 6 § 3; cp. vol. i 227-228.

2 Vol. iv 87.

3 (1592) And. 297; another version from a MS. in the British Museum is printed by Hallam, C.H. i 234-236, and more correctly by Prothero, Constitutional Documents 446-448; both versions will be found in vol. v App. I.; at the crucial point, see below 33 n. 1, the other version is less favourable to the contention of the House of Commons than the report in Anderson.

43 S.T. 77-78.

of her courts, without due trial by the law, and judgment of acquittal had; nevertheless the judges may award the queen's writs to bring the bodies of such prisoners before them; and if upon return thereof, the causes of their commitment be certified to the judges as it ought to be, then the judges in the cases before, ought not to deliver him, but to remand him to the place from whence he came, which cannot conveniently be done, unless notice of the cause in generality, or else specially be given to the keeper or gaoler that shall have the custody of such prisoner." 1

It can hardly be denied that this is a somewhat cryptic statement. But it seems fairly clear that the judges did not think that a person imprisoned by command of the crown or by the whole council should be released pending his trial. At the same time they asserted their right to have such persons brought before them in order that they might examine into the cause of their committal; and they considered that that cause should be certified to them. If the cause was certified, the judges should, they think, remand the prisoner. But they avoid saying whether, if the cause is not certified, he should be released; and they leave it uncertain whether a return that the prisoner is committed by the queen's command would be a sufficient "notice of the cause in generality." They probably meant to assert for themselves a certain amount of discretion in such cases; but I think that the context shows that they were prepared to consider that such a return might be sufficient. And according to the other version

11 And. 298. The alternative version runs-" We think that if any person shall be committed by her Majesty's special commandment or by order from the CouncilBoard, or for treason touching her Majesty's person, any of which causes being generally returned into any court is good cause for the same court to leave the person committed in custody, but if any person be committed for any other cause, then the same ought specially to be returned"; then follows the signatures of the judges. Clearly this is less favourable to the claim of prisoners committed per speciale mandatum regis to be released than the statement in Anderson's report: cp. Gardiner, op. cit. vi 244-245. A still less favourable version of the law is contained in an opinion of Serjeant Thomas Harris, Richard Godfrey, and Anthony Dyott given to the Council in 1613, Acts of the Privy Council (1613-1614) 7; it allows arrest by the Council," if any person happen to be suspected or accused either of treason, felony, or any other offence supposed to be done or committed against the Crown or State." 2 This seems to have been the meaning assigned to it by Whitelocke, J., when he explained his decision to the House of Lords in 1628; he said, "Now, my lords, if we had delivered them presently upon this, it must have been because the king did not show the cause, wherein we should have judged the king had done wrong; and this is beyond our knowledge, for he might have committed them for other matters than we could have imagined. But they might say thus they might have been kept in prison all their days; I answer no, but we did remit them, that we might better advise of the matter. But they say we ought not to have denied bail. I answer, if we had done so, it must have reflected upon the king, that he had unjustly imprisoned them And it appears in Dyer, 2 Eliz. that divers gentlemen, being committed and requiring Habeas Corpus, some were bailed, others remitted: whereby it appears, much is left to the discretion of the judges," 3 S. T. 161. This practice seems to have been followed; in 1640 Rossingham wrote to Conway, "Monday in this week, Mr. Davers and Mr. Pargeter of Northamptonshire, were brought by Habeas VOL. VI.-3

of the resolution, there is no doubt at all that they were of this opinion.1

3

This was the most recent considered utterance of the judges when, in 1627, Darnel and four others, who had been committed to prison per speciale mandatum regis for refusing to subscribe to a loan to the king, were brought before the King's Bench on a writ of Habeas Corpus, and applied for their release. This application raised the question whether a return that a person was committed per speciale mandatum regis was good in law, and a sufficient answer to a claim to be released. The case was elaborately and carefully argued both by the bar and by the bench; it was a case, as the Court said, of great weight and expectation; and the question was still more elaborately discussed in Parliament in the following year.

4

Both the counsel for the prisoners and the counsel for the crown relied upon arguments derived from statutes, from precedents, and from considerations of public policy. Firstly, it was contended by the counsel for the prisoners that both Magna Carta and statutes of Edward III.'s reign prohibited a man from being imprisoned except by the process and for the causes recognized as sufficient by the common law; and that a committal per speciale mandatum regis was not a committal by due process of law, and was therefore insufficient. 5 To this it was answered that none of these statutes touched the case of a committal for this cause; that the king, acting as head of the commonwealth and as fountain of justice, had an absolute power to commit which no court could question; and that therefore a committal by his command was just as much a committal by due process of law as a committal by the judges upon a presentment for a crime. In fact, as the crown lawyers were fond of pointing out, the prerogative was a part of the law, and therefore

Corpus to the King's Bench Bar, but the Lord's warrant, which committed them to prison, showed no cause wherefore they were committed; whereupon the Lord Chief Justice took three or four days to learn of the Council why they were committed, in the meantime they return to prison," S.P. Dom. 1640, 309, cccclvii 36. It may be remembered that Whitelocke was a man who had, in his earlier days, suffered for his constitutional opinions, vol. v 350; and there is no reason to suppose that he had in his later years become a blind supporter of the prerogative.

1 Above 33 n. 1; vol. v App. I.

2 Corbet, Earl, Heveningham, and Edmund Hampden. 33 S.T. I.

4 Ibid 51.

5 See Bramston's argument, ibid 6-8; Noy's argument, ibid 14-15; Selden's argument, ibid 17-18; Calthorpe's argument, ibid 22-26.

See the Attorney-General's argument, ibid 38-41.

See e.g. Bacon's speech to Sir J. Denham when he was made Baron of the Exchequer in 1617, "The king's prerogative and the law are not two things; but the king's prerogative is law, and the principal part of the law. . . and therefore in conserving and maintaining that, you conserve and maintain the law," Spedding, Letters and Life of Bacon vi 203; cp. ibid vii 118.

3

'per

these prerogative rights were included under the terms " legem terræ," or "due process of law." Secondly, it was contended that there were many precedents, both in mediæval times, and in modern times, in which persons committed by the king or his council had been released. Certainly one of the mediaval precedents cited seems to bear out this contention. But some of the more modern precedents did not bear it out. In some of them another definite cause, besides the command of the king, was assigned as the cause of detention; and the court had decided upon the legality of the other cause thus assigned. In others the release had been by the consent of the king. In others prisoners detained for this cause had not been released.5 I think that it is clear that counsel for the prisoners could not show that the precedents showed anything like a uniform practice; and that the counsel for the crown could point to a considerable number of modern precedents which were in their favour, and could successfully appeal to the modern practice as described in the resolution of the judges reported by Anderson. Thirdly,

.

1"No freeman can be imprisoned but by 'legale judicium parium suorum aut per legem terræ.' 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 the 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 be made: what then is meant by these words, 'per legem terræ'? If any man shall say this does not warrant that the king may for reasons moving him commit a man, and not be answerable for it neither to the party, nor unto any court of justice, but to the High Court of Heaven; I do deny it, and will prove it by our statutes," the Attorney-General's argument, 3 S.T. 38; the same point was put more clearly by Bacon in his charge against Whitelocke; he said, "lex terra mentioned in the said Statute, is not to be understood only of the proceedings in the ordinary courts of justice, but that his Majesty's Prerogative and his absolute power incident to his sovereignty is also lex terra, and is invested and exercised by the law of the land, and is part thereof," Spedding, Letters and Life iv 350; and this was the view taken by the Council, Acts of the Privy Council (16131614) 214-215.

2 Some of the records cited in the case are printed 3 S.T. 109-126; others are referred to in the judgment of the court, ibid 57, 58; the court said, " you shall see we have taken a little pains in this case, and we will show you some precedents on the other side."

3 The case of John Bildeston, the record of which is printed ibid 109. 4 The Court, after examining the precedents, concluded that, "Where the cause of the commitment hath been expressed, there the party hath been delivered by the court, if the case so required; but when there hath been no cause expressed, they have ever been remanded; or if they have been delivered, they have been delivered by the king's direction, or by the lords of the council," ibid at p. 53.

5 See precedents cited ibid at pp. 57, 58. Those who argued for the view of the House of Commons in the subsequent debates and conferences with the House of Lords, tried to evade the force of some of the precedents by drawing a distinction between cases when the entry was that the prisoner "remittitur quousque secundum legem deliberatus fuerit," which, they said, was equivalent to a remand to prison; and cases when the entry was " remittitur," or "remittitur prisonæ prædicta," which, they said, meant that he was only remanded that the court might advise, or that the gaoler might amend his return, ibid 142; but this distinction was denied both by Keeling, "a clerk of great experience in that court," ibid, and by Dodderidge, J., ibid 163.