House of Lords Journal Volume 12: 8 June 1675

DIE Martis, 8 die Junii.

REX.

Domini tam Spirituales quam Temporales præsentes fuerunt:

PRAYERS.

Lieut. of The Tower refuses to deliver Sir J. Churchil & al. on the Writs of Habeas Corpus.

The Serjeant at Arms attending this House was called upon, to give an Account what he had done in the Execution of the Delivery of the Four Writs of Habeas Corpus delivered to him by the Lord Keeper.

And he gave this Account following:

"In Obedience to your Lordships Commands, I received from the Right Honourable the Lord Keeper of the Great Seal of England, about Half an Hour past Eight of the Clock, or thereabouts, Four Writs of Habeas Corpus; and immediately I did repair to The Tower, and delivered them to the Lieutenant of The Tower; and after he received them, he desired me to present his humble Duty and Service to this Honourable House, and that he should do his Duty inasmuch as in him lay to both Houses; and desired me to let the Right Honourable the Lord Keeper know, that he would wait upon him To-morrow Morning; or Words to that Effect."

Then the Lord Keeper gave the House an Account of Sir John Robinson's coming to him early this Morning: "That he acknowledged the Receipt of the Habeas Corpus; and would have excused himself to his Lordship, by reason of some Votes or Orders of the House of Commons, which his Lordship would not examine; but told him, the Writs were not returnable to him, but to the Lords in Parliament, whose Servant the Lieutenant of The Tower is, and ought to do his Duty according to Law."

Lieut. of The Tower not appearing;

The Gentleman Usher of the Black (fn. 1) Rod was commanded to enquire without, whether the Lieutenant of The Tower did appear; who returned this Account, "That the Lieutenant did not appear."

Serjeant to make Proclamation in the Hall.

Whereupon the House commanded the Serjeant at Arms to go, with his Mace, into Westminster Hall, and make Oyez Three Times, and then make Proclamation in these Words: "Sir John Robinson, Lieutenant of The Tower, come forth, and return the Writs of Habeas Corpus before the Lords in Parliament, as you are commanded."

Serjeant reports he has made Proclamation.

The Serjeant at Arms gave the House an Account, "That he had made Proclamation, at the Top of the Stairs between the Court of Chancery and the Court of King's Bench in Westminster Hall, to command Sir John Robinson to return the Writs of Habeas Corpus before the Lords in Parliament, as he was commanded."

Writs of Hab. Corp. ought to have been made out by Clerk of the Crown, and not by the Cursitors.

Upon Consideration what to do next;

The Lord Keeper gave an Account, "That the Order Yesterday was directed to the Cursitors, to prepare the Writs of Habeas Corpus; whereas the said Writs should have been made by the Clerk of the Crown in Chancery."

Hereupon the House had the Opinion of the Judges this Day present; videlicet, the Lord Chief Justice of the Court of Common Pleas and Judge Atkins.

And these Two Questions were propounded to them:

Judges Opinions.

"Whether these Writs of Habeas Corpus, sealed with the Great Seal of England, be effectual in Law, though the Writs be written by the Cursitors, and not by the Clerk of the Crown?"

The Opinion of the Judges was, "That the Writs, being under the Great Seal of England, are good and effectual in Law, by what Hand soever they were written."

"Whether there may an Alias Habeas Corpus be issued out of the Office of the Clerk of the Crown, notwithstanding the former were issued out as aforesaid, and not returned by the Lieutenant of The Tower?"

And the Opinion of the Judges is, "That an Alias Habeas Corpus is good in Law, and well issued in that Case; else it were in the Power of the Gaoler, by the not returning the First Writ, to hinder the issuing out of an Alias."

The same Opinion Mr. Attorney General was of.

Upon this, the House made this Order following:

Clerk of the Crown in Chancery to make out Alias Hab. Corp.

"Forasmuch as Oath hath been made, That Four Writs of Habeas Corpus have been delivered to the Lieutenant of The Tower, returnable in Parliament this Day, which are not returned: It is ORDERED, That the Clerk of the Crown in Chancery do prepare Four several and respective Writs of Alias Habeas Corpus (with a Penalty of Forty Pounds in each Writ to be contained), to be sealed by the Lord Keeper of the Great Seal of England, and directed to the Lieutenant of The Tower, and returnable into the House of Peers, for bringing the Bodies of Edward Peck Serjeant at Law, Sir John Churchill Knight, Francis Pemberton Serjeant at Law, and Charles Porter Esquire Counsellor at Law, with the Cause of their Commitment, to the House of Peers, To-morrow Morning, at Ten of the Clock; and that the Serjeant at Arms attending this House, or his Deputy, be, and is hereby, required to carry the said Writs to the Lieutenant of The Tower for that Purpose."

Message from H. C. with a Bill;

A Message was brought from the House of Commons, by Sir Thomas Littleton and others; who said, He was commanded, by the Knights, Citizens, and Burgesses of the House of Commons, to present to their Lordships a Bill for Continuance of a former Act, intituled, "An Act for giving Liberty to buy and export Leather and Skins, tanned and dressed;" to which their Concurrence is desired.

and to remind the Lords of a Message for a Conference.

"2dly, For preserving a good Correspendence between the Houses, he was commanded to put their Lordships in Mind of a Message from the House of Commons lately, to desire a Conference, concerning the Matter of the last Conference; to which the Lords had returned this Answer, That they would send an Answer by Messengers of their own."

Adjourn.

Dominus Custos Magni Sigilli declaravit præsens Parliamentum continuandum esse usque in diem Mercurii, nonum diem instantis Junii, hora decima Aurora, Dominis sic decernentibus.