Five Knights Case III
Bill Long 1/8/05
The Attorney General's Argument and the Decision
Attorney General Heath then bored in on the arguments made by petitioners counsel. He first looked at the language of the arrest warrant and then turned to an exposition of the statutes, focusing on Magna Carta chapter 29.
The Arrest Warrant
Actually, there are two kinds of arrest warrant, he argued. "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' (for certain reasons moving the Lord King himself). "But if the King do this, shall it not be good?" If the King decides to express the specific reason, he may do so, such as when he at times indicts for "suspicion of felony, or making money, or the like." But, if there is no cause expressed, "this Court hath always used to remand them: for it hath been used, and it is to be intended as a matter of State, and that it is not ripe nor timely for it to appear." In other words, if we were to use theological terms, the "Lord King" moves in mysterious ways his wonders to perform. Sometimes he states them clearly and other times he keeps the causes of his action to himself. In the case of the latter, we must assume that he has good reason for not specifying the cause. It just may not be the ripe time for the cause to be specified. "But shall any say, 'The King cannot do this? No: we may only say, He will not do this."
The Attorney General then disposed of the arguments from the text of Magna Carta. Indeed he quoted the words that no freeman can be imprisoned but by "legale judicium parium suorum vel per legem terrae" (by the legal judgment of his peers or by the law of the land). But, turning to history, he argued that "no learned man will offer" that the former (legal judgment of peers) requires an indictment or presentment. Indeed, countless justices of the peace and constables arrest and hold a person without indictment and presentment. As for the clause "legem terrae," which seemed to be the foundation of Selden's case, there were ample precedents from English history showing that a King or Queen could and did commit a person to prison and hold him there without being answerable for it.
To illustrate the latter point, Heath cited an action by Queen Elizabeth in 1594 recorded in Judge Anderson's Reports. In this case, all twelve judges (King's Bench, Common Pleas, Exchequer) held that "a prisoner committed per special mandatum...at the King's comman...was not bailable and cause for committal need not be shown." If cause is not specified, the offense is probably too great for general knowledge, dangerous for public discussion or not fit for people to be concerned about.
Hale recognized the importance of the case, and stated his general principle of adjudication: "We are sworn to maintain all Prerogatives of the king, that is one branch of our oath; and we are likewise sworn to administer justice equaly to all people." He recognized that the statutes cited were "good laws, and that they be in force" but they were not particularly relevant to the issue of a case such as is before the Court. He stated that the precedents cited were "all against you (lawyers for the five) every one of them." In fact, the proper rule of law to apply in this instance is "if no cause of the commitment be expressed, it is to be presumed to be for matter of state..." Then, he mentioned the case from "34 Eliz" (1594), discussed above. What choice had he but to "walk in the steps of our forefathers?" Thus, he decided htat the prisoners could not be delivered; they ought to be remanded.
When this case is presented in 2005, if it ever is done, it is always done through what I call an "inevitablist's view of history"--that is, that "we all know" that Selden and the five were right because we in America eventually recognized the right for which they were fighting. But, if we strip away our perspectives from 2005, I think we must frankly acknowledge that the state/King had the better of the legal argument before King's Bench. No one can study the reigns of Henry VIII or Elizabeth I without seeing many examples of what we today would call arbitrary royal authority. In addition, Elizabeth I was plotted against many times and used her royal authority to deport, imprison and hold without charge so that the threat to the throne would be averted. With these strong precedents and historical memory still in the consciousness of people living in 1627, the attorneys for the five must have been aware that they were pursuing an uphill strategy. Indeed they were.
But times were changing. Charles I's exactions only highlighted the growing and now seemingly irreparable breach between Parliament and the Crown. While law was seemingly on the side of the King in this instance, the Parliament, the third called by Charles, meeting in 1628, would try to reverse the power equation through passing the Petition of Right, which is the subject of the next few mini-essays.
Copyright © 2004-2008 William R.Long