Five Knights Case II (1627)
Bill Long 1/8/05
The Case Before King's Bench
As I mentioned in the previous mini-essay, only five men (Darnel, Corbet, Earl, Heveningham and Hampden) brought a writ of habeas corpus after being committed to prison for refusing to "loan" the King money to prosecute a European War in favor of Frederick, Elector of the Palatinate. The only charge on which they were held was that their confinement was "per speciale mandatum domini regis"--by the special command of the Lord King." Lawyers for the five argued that this was not a sufficient ground to hold the men. The case was heard and decided from Nov. 15-28, 1627. Here is how it worked.
The Return of the Warden
You first need the "return" or written testimony of the Warden when he produced the prisoners before the King's Bench. This man, a certain Johannis Liloe, wrote to the Court (in Latin) saying that he certified that Walter Earl (one of the prisoners) was held "per speciale mandatum domini regis" indicated in an arrest warrant "from two lords and others from the most honorable Privy Council of the aforementioned king." The text of the arrest warrant is then given, authorizing Liloe to detain Erle by "His Majesty's special commandment." Lord Chief Justice Hale, in his opinion, quickly stated that the "form" of the return was good. More important would be the substance of the claim.
Arguments for the Petitioners
Sergeant Bramston argued the case for Heveningham, claiming that he should be "bailed from his imprisonment." The writ of habeas corpus was the only means by which a person could obtain liberty, "and the end of the writ is to return the cause of imprisonment." But, in this case, no cause was indicated. If the court concluded that the "return was good" [that sufficient cause was expressed in the return to deny bail], "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." In other words, the logical implication of permitting the King to imprison men without bail by his "special commandment" is that they may be so held forever. Bramston made brief mention of two statutes, Magna Carta and 28 Edward 3, ch. 3, the former of which would largely figure in Mr. Selden's argument.
John Selden then presented the case on behalf of Edmund Hampden. After reviewing the procedural history of the case, Selden got to his main point: "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." He then exposited the crucial chapter (29) of Magna Carta. The Latin text provides:
"Nullus liber homo capiatur vel imprisonatur nisi per legem terrae." Translation: "No free man may be seized or imprisoned unless by due course (process) of the law of the land."
Selden then construed the crucial phrase "legem terrae" to mean "by presentment or indictment." Indeed, if per speciale mandatum was within the meaning of these words, "then this Act (Magna Carta) had done nothing." Thus, the crucial point for Selden was that the phrase "law of the land" suggested a process recognized in law rather than the whim of a sovereign.
The Attorney General Speaks
References to this case, if they exist at all, usually only refer to Selden's argument and Chief Justice Hale's opinion. In my judgment, however, the argument of Attorney General Heath stated the reasons why the Court could be comfortable remanding the men and thereby dismissing the writ. Though his argument is quite long, it may be summarized under two heads: (1) the argument from the theory of kingship and (2) the argument from the language of statutes, especially Magna Carta, and precedents.
The Attorney General began by making a distinction. "The King cannot command your Lordship, or any other Court of Justice, to proceed otherwise than according to the laws of this kingdom." However, "there is a great difference between those legal commands and that absoluta potestas that a sovereign has." This absoluta potestas does not mean that the King is able to do whatever he wants, for he too has rules to govern himself, but the crucial point 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...yea, the very essence of justice under God upon earth is in him."
The rhetorical question then follows immediately, "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?" That is, if he is the fountainhead of justice, the originator of the "flow" so to speak, how can those who "drink" from the flow question it? It would be as inappropriate as the farmer questioning the soil about its fruitfulness.
Conclusion
As is readily apparent, if you "buy" the Attorney General's theory, you will find a way to "explain" Magna Carta or any other statute consistently with this theory. But it might be useful to consider his argument further, in the next essay, as well as the Chief Justice's decision.
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