â—â—â—â—ell in the Vacation time as in Term. And in the 4th Instit fol. 88. Speaking of the Court of â—â—â—â—cery he saith And this Court is the rather alvvayes 〈◊〉 for that if a man be vvrongfully Imprisoned in the Vacation the Lord Chancellour may grant an Habeas Corpus 〈◊〉 â—o him justice according to Lavv. And â—ide 4. Instit 〈◊〉 182.190 Thus the Lord Cook Mr. Jenkes Counsel did likewise ossâ—â— a President or two but the Lord Chancellour making light of the Lord Cooks opinion saying The Lord Cook vvas not Infallible And â—â—â—gâ—â—ng all that Mr. Jenkes Counsel offered over-ruled the matter denying to grant the VVrit On Tuesday morning July 11th at the Quarter Sessions holden for the liberty of Westminster Mr. Jenkes being still a prisoner in the Gate-house within that liberty did move by his Counsell to be bayled where this was the substance of what passed as it was taken by a by-stander Court We have no such Name in our Kalender and we sitting here by a limited Commssion can take no notice of any person that is not in our Kalender Council Every keeper of a Prison either in County or Franchise ought by the statute of 3. H. â— cap. 3. to certifie the names of every Prisoner in their Custody at the next generall Goal-delivery there to be Kalendered before the Justice of Goal-delivery that the partys may be delivered according to Law upon pain of 100 l. For every defalt there recorded and I demand that this defalt of the Goaler may be recorded according to that statute and that you would as you may command him to Kalender him now The statute was read Court VVe are no general Goal-delivery for we cannot Try severall felons but they must be tryed at the generall Goal-delivery for the County Counsel You are a generall Goal-delivery for all offences within the Cognisance of your Franchise and therefore unlesse the Fact for which he is Committed be such as is above your Cognisance he ought to be Tryed here and if it be such a Fact he ought notwithstanding to be Kalendered here that you may send him to the County Goal where he may be tryed Goaler I never did Kalender any man that was committed by the Councill Table Counsel The neglect hath not taken away your duty and as often as you have ommitted to do so so oft you have deserved to be fined and I do again demand of this Court that this default of yours may be recorded The Court inclined to the Goaler and would not record his default whereupon the Counsel proceeded Counsel Since you exclude him from the benefit of your present Commission I apply my self to you without respect to that as you are Justices of peace in general and as such you have power to bail any man bailable by Law except in some particular cases where you are restrained by statute Court By whom is he committed Counsel By the Council Board Court Do you believe the Council Board can commit to prison Counsel I admit it Court VVe don't know for what offence he is committed Counsel I have here a Copy of the Commitment and desire it may be read But the Goaler refusing to own it for a true Copy tho given by himself and the Court requiring a nicer proof that it was a true Copy than could at that time be made they â—â—â—erd the Counsel to attend in the afternoon and in the 〈◊〉 time the Goaler to give a true Copy In the afterâ—oon the Counsel appearing the Court called to him and asked him what he had to say Counsel I have now a Copy given and signed by the Goaler for a true Copy and desire it may be read The Goaler who was to prove it a true Copy upon the Counsels coming into Court took an occasion to slink away and the Court as if it had been by design were ready to take hold of that opportunity to evade the businesse but Mr. Jenkes friends fetched him back and he Swearing it to be a true Copy it was read Court What is it you demand Counsel What I did before that there being nothing in this warrant for which he is not Bailable by Law I demand that he may be Bailed Court You have taken a wrong course in comming to us Counfel I presume he applyes himself properly to you for he being a Prisoner within your Liberty you are the most proper persons to bayl him As Justices of the Peace you have power to bayl any man within your Jurisdiction bayl-able by Law and where you may bayl by the Law you ought to do so and I demand it for Mr. Jenkes Court Where do you find such power given to Justices of the Peace Counsel By the same Statute of H. 7. that I oited against the Goaler the enacting part whereof saith That the Justices of the Peace in every Shire City or Tovvn or tvvo of them at the least vvhereof one to be of the Quorum have authority and povver to let any suck prisoner or persons Mainpernable by the Lavv that have been Imprisoned vvithin their several Counties City or Tovvn to bail or mainprize unto their next General Sessions or unto the next Goal-delivery of the same Goales of every Shire City or Tovvn as vvell vvithin Franchises as vvithout vvhere any Goales be or hereafter shall be c. The whole Statute was read and the Court taking boâ— of the preamble said Court This statute was made for the prevention of bailing Felons not bailable by Law and enables us only to bail Felons bailable by Law Counsel The Preamble of the Act recites that mischief occasinoned by the Statute of 1. R. 3 But the Enacting part Repeales that Act and gives you a general power of letting any persons mainpernable by the Law to bail and I 'm sure no statutes made for the liberty of the subject ought to receive such a strait Construction Court Do you consider by whom he is commited the Privy Council Counsel I do and think that alters not the case Court He is commited by a superiour Court and we who are an Inferiour one cannot bail him Counsel It is not the Court that commits but the Fact for which the party is committed ought to direct you in Bail The Statute of H. 7. hath no such exception in it nor hath any other since put any such restraint upon you Court Would you have us Bail him after the Lord Chancellour and the Lord Chief Justice have refused to grant a Habeas Corpus Counsel They did not deny the Habeas Corpus because he was not Bailable by Law but because the Course of their Courts in their opinions would not admit it but however if you ought to Bail him as by the Statute I think you ought their refusal does not lesten your duty Then the Court put him several cases that did not at all reach the present case as they seemed to think themselvs by their faint urging them Court We doubt very much that any
inferiour Court can Bail a man Committed by a Superâ—â—â—â— one Counsel Scruples and fears do nor 〈…〉 Law 〈◊〉 â—â—out was once made in the Kings Benefâ—â— thâ— great case of Sâ—lden and others but the Law was for the â—â—soneâ— befâ—â—â— that time and was sufficiently settled then and 〈…〉 from that in reason 〈◊〉 〈◊〉 for that was upon a Habeas corpus out of the Kings Bench. Counsel That is but a circumstanciall difference The Habeas corpus from that Court is only to remove the prisoner and the cause before them that Justice may be done to him Mr. Jenkes is already within your Jurisdicton and the statute gives you Authority to Bail him and your Authority makes it your duty and I rely upon that Court We considerd upon it at Dinner and do belive it a rare case and fit to be advised upon and we will advise Why did you not move yesterday when my Lord Chief Justice was in Town Now there are no Judges in Town to advise with Counsel That we did not come yesterday was no design for he is not so fond of a Goal and if it be an indiscretion yet that is no sufficient reason to detain a man in prison however if you have power which you ought to know you have it as well when they are not in Town as when they are Is he Bailable by Law or not Court There is nothing in the Warrant for which he is not Bailable by Law Counsel For what reason then do you deny him Court We do not deny him but we will advise because he is Committed by a superiour Court Counsel No man ought to be imprisoned for any misdemeanour before Conviction without Bail and it is against the Petition of Right that any man Bailable by Law should be detained in Goal without it I don't know how by such denials as this the being Commited by a superiour Couâ—â—â—hâ—â— gâ—ow 〈◊〉 a reason but at present I think thâ— Petition of Right spoils it for being a good one Court You can give us no President of any one being Bailed by Justices at the Sessions who was commâ—tted by the Council Board Counsel I believe it is a rare case that a man should be forced to apply himselfe to such but I think I caâ— furnish you with an instance and that is of one Cannon a Quaker who was committed by the Privy â—ounsell about Christmas last and was Bailed at the Sessions of the Old Baily A pert By-stander no ways concerned suggested to the Court and the Court repeated after him Court He was commited to New-Gate Prison and was Kalendered there Counsel If you stick to the reason of being committed by a Superiour Court that is no answer but if it must be an answer Mr. Jenkes is committed to the Prison of this Liberty and ought to have been Kalendero here and then I do again demand that the Goaler be fined Court We think it a rare case and fit to be advised upon and our Commission we here sit by directs us to do so in difficult cases Counsel I told you before I have nothing to do with the Commission you hear sit by and your selves excluded me from it but apply my-self to you as Justices of Peace meerly and as such you ought to take upon you the knowledge of your Office Court In the great case of Selden that you Cited the Judges took two Terms to advise Counsel You very well know what Opinion was had of their doing so Will you advise upon it to Night with the Kings Counsel and I le attend you to morrow morning Court We think fit to advise with the Judges about it till next Sessions 〈◊〉 〈…〉 can easily interpret wiâ—â— such adviliâ—◠〈◊〉 〈…〉 say you apply your self to us as Justices of 〈…〉 then you may come to any two of us a fortâ—ight hence or more and perhaps we may advise in the mean â—ounsel I believe it will be a difficult matter to get any two of you together upon this occasion Mr. Jenkes finding all these common Doors to Liberty shut against him did by advise betake himself to another method not lesse legall then the former tho the Power granted by the Statutes to Justices of Peace and the constant issuing of the Writ of Habeas Corpus upon demand both more easy Courses have occasioned it to be of more seldom use Justice Filzherbert in his Natura Brevium an Author and a Book of Justly venerable Authority in our Law in hâ—s Chapter of Mainprise declars That If a man be taken by the Kings Commission and kept in Prison for Fellony or Misdemeanors be may by his friends put in sureties in the Chancery that he vvill appear before the Justice c. And be of good behaviour c. And that body for body and thereupon he shall have a Writ out of the Chancery unto the Sheriff or unto the Constable of the Castle vvhere he is Imprisoned to set him at liberty if he be Imprisoned for that cause and for no other Which words seem plainly to declare the Writ of Mainprise to be the subjects right and not to leave a discretional power to the Officers of Chancery in granting it But the scarcity of Presidents being the great Objection against the Habeas Corpus out of Chancery Mr. Jenkes resolved to offend no more in that kind and therefore caused a search to be made in the Rolls in the Tower for the Writs of Mainprise where a multitude of them was found and many in the case of a Commitment by the Kings command A Copy of one and a Note of severall others were taken out to Back the Authority of Fitzherbert With this provision on Monday July 17th four of Mr. Jenkes friends substancial Merchants attended with a Counsel went to the Lord Chancelour and tho upon tender of themselves as Bayl for him they might have demanded their Writ of Mamprise as the Subjects right without other formality yet they addressed themselves to him in a more respectfull manner by way of Petition thus To the right honourable Henry Lord Finch Baron of Daventrey and Lord High Chancellour of England The humble Petition of A. B. C. D. of London Merchants friends to Francis Jenkes now Prisoner in the Gate-House of Westminster sheweth That the said Fr. Jenkes was Committed to the said Prison by virtue of a Warrant a true Copy whereof is here unto annexed for a fact Bayl-able by Law for which and no other cause he yet remains there a Prisoner And that in this and all other cases of like nature your Petitioners are advised upon putting in Bayl in the Court of Chancery according to the antient course and usage thereof a Wâ—rit of Mainprise ought to Issue under the Great Seal to be directed to the Sheriff or Keeper of the Prison where such prisoner stands Committed to deliver the prisoner so Committed That your Petitioners being men of good Estates as shall if your Lordship require be made out to your Lordship
committed a mistake in returning the Petition That his Lordship had ask'd him for it Note That he return'd it by his Lordships Order and would be very angry with him if he had it not That he had left his Lordship looking over some Papers and taken that opportunity of coming for it and desired that he might have it to preserve him from his Lordships displeasure Tho the Mornings action gave Mr. Jenkes a great deal of reason to suspect the Secretary's tale to be a meer contrivance and easy to surmise the Truth yet he took no notice of what had men passed but sent the Petition which was then in some of his Friends hands that evening to him Upon the second thoughts which his Lordship bestowed upon the matter of the Petition he was better reconciled to it and proved better than his word in considering the Presidents for in stead of pausing on them till the next Term he was pleased to carry them and the Petition to the Privy Council the next â—â—â—â—nesday where tho all the particulars are not known upon â—â—edible Information this was the substance of what passed His Lordship acquainted the Board of the Address that had been made to him and moved that the Petition might be there read After it was read his Lordship told them that it had some appearance of Law and desired that the Attorney General might give his opinion Mr. Attourney told him If it were Law his Lordship ought to grant it if it were not Law then to deny it If it were of such difficulty as he could not satisfy himself That then he should advise with the Judges His Lordship then moved for an Order of Council for his direction in the matter to which some of the Lords reply'd That they were a Court of State and not of Lavv and that it did belong to him as Lord Chancellour to inform them in matters of Lavv. Thereupon his Lordship claping his hands on his breast said I thank God I have Courage enough to serve his Majesty About the latter end of July some of Mr. Jenkes his Friends attended his Lordship again and offered him Bail insisting upon the Writ of Mainprize as the Subjects Right alledging to his Lordship the hazzards that his Health his Family and his Trade were exposed to by his confinement His Lordship asked them why they had not petitioned the King and Council and told them if Mr. Jenkes thought it better to lye in Prison and Complain than Petition and be Bayled he might do as he pleased They told him they had tendred Bayl to Mr. Secretary Williamson who promised them to move the King and Council in it but when they reminded him of it upon the next Council Day he was pleased to excuse himself His Lorshdip told them he never heard they had tendred Bayl but the Writ of Mainprize was forgotten in all his Answers They then told him that the General Report was that the King and Council had referred it to his Lordship but his Lordship would take no notice of that likewise but said the King would advise with the Judges when they came to Town His Lordship with-drew from them and they left word with his Secretary That Mr. Jenkes looked upon himself to be his Lordships Prisoner On the _____ of August Mr. Jenkes's Friends went again to my Lord Chancellours but his Secretary told them his Lordship could not be spoken with They prevailed with his Secretary to go up to him and remind his Lordship of his last Answer of advising with the Judges and tell him that several of the Judges had been in Town and they did now desire his Lordships Resolution The Secretary at his Return told them that as soon as he began to mention the business his Lordship fell into a fit of the Stone but when that was over he would mention it unto him About two hours after they returned and the Secretary being absent another of his Lordships servants came to them and told them that his Lordship was not well and could not be spoken with but had ordered him to tell them That Mr. Jenkes might advise with his Counsel what was fit to be done for he was none of his Counsel and if he would Petition the King and Council he might and that that was his Answer On the 11th of August being the last Council day that was to be before the 3d. of October Mr. Jenkes thought fit again to tender Bayl to the Council and that the Lord Chancellour who disowned all knowledge of his doing so before and the whole Council might know of it he sent this Letter by his Bayl to the Lord Privy Seal then President of the Council which was publickly read My Lord Have been imprisoned since the 28th of June to my 〈◊〉 great losse charge and prejudice of my health I have â—â—â—herto been denyed Bayl Habeas Corpus and the Writ of Mainprise which I am informed were never before denied to any of his Majestys subjects in the like case and this only for moving in a lawfull Court and in a quiet and peacable manner that which I did believe to be for his Majestyes service and the good of the City and Kingdom and the preservation of the Protestant Religion and which I conceive I can make appear to be according to the Laws and Statutes of this Realm if I am publickly called thereto Wherefore I do not beg a discharge for I desire nothing more then to clear my innocence by a publick tryall but since Mr. Murrel and others committed to this prison for matters of a far other nature are daily bayled out my humble request to your Lordship is that you would be pleased to move his Majesty that I as well as any other of his Majestys subjects may enjoy the benefit of the Laws and that the Writ of Mainprise may be granted to me or that my Bayl which now attend may be taken Your Lordship will very much oblige Your Lordships humble-Servant FRANCIS JENKES This Letter was by some improved into a Petition and when they had given it that name tho that was the only thing wanting to please the Lord Chancellour yet it could not procure the acceptance of Bayl but the method proposed by his Lordship proved as ineffectuall as those that were demanded of him The Lord Chancellours resolutions being sufficiently discovered Mr. Jenâ—es friends forbore all farther sollicitation of his Lordship and made fresh application to the Lord Chief Justice Rainssord on August 18th then just returned from the Circuit The time of Sessions at the Old Bailey drawing on They caused two Writs of Habeas Corpus to be made the common course of removing prisoners from one Goal to another one ad deliberandum directed to the Keeper of the Gate-house the other adrecipiendum directed to the Sheriffs of London and desired his Lordship to sign them that Mr. Jenkes might be removed and brought to tryall for that the keeper of the Gate-house not Kalendering any State prisoner as he called him at the Sessions for Westminster he might lye there all his life time without triall which no Subject ought to do His Lordship excused himself upon his late return to Town which had not yet afforded him leisure to advise and sent them to the Attorney Generall to know whether he were ready for a Tryal before he would give them any answer Mr. Attorney upon their coming to him very worthily told them that he had no order in it but that he would not oppose the granting of those Writs adding God forbid but that the Law should have its due course They returned to the Lord Chief Justice with this answer and offered to make Oath that it was Mr. Attorneyes answer but he would give credit to nothing but a note under Mr. Attorneys own hand They told him it was hard that a man shouldly in prison who was willing to bring himself upon tryall that Writts of this nature were every day granted and did presume could not reasonably be denyed His Lordship answerd he would know whether â—r Attorney were ready for a 〈◊〉 â—hey replyed that â—â—â—y did not know when Mr. Attourney would be ready and 〈◊〉 Mr. Jenkes must stay for his Tryal till then they then moâ—â—ed his Lordship as they had done formerly that he would â—rant a Habeas Corpus to bring him before his Lordship and â—hat he would accept of substantial Citizens for Bayl who should render him whensoever Mr. Attorney should call for him alledging that such Writs had been frequently granted by the Lord Chief Justice Keeling and one of the now Justices of the Kings Bench. His Lordship returned that he did not doubt the Security they should offer him but he had never granted such a Writ and he knew not upon what Authority others had done it and in short refused to grant either that or the other Writs After all these Denials of Right Mr. Jenkes resolved to sit still with the satisfaction that his ill success was not imputable to the Injustice of his Cause but to the Pleasure or Fear of those that had the Power of making it otherwise and with patience to expect till the Term should set open the Prison doors which will not brook the denial of a Habeas Corpus tho a long Vacation must No further Address was therefore made to either of their Lordships but themselves after they had taken the pleasure of denying him were pleased to condescend to Intercede for him For as we received by very credible information the Lord Chief Justice went to the Lord Chancellour and told him that the Writs demanded of â—iâ— were according to Law and could not be denyed and that he had only taken time till he had acquainted his Lordship with it The Lord Chancellour directed him to the Lord Treasurer for further advice who sent him to the King As soon as his Mâ—jesty understood that what was demanded was the Subjects Right he immediately commanded that the Laws should have their due Course which their Lordships had stop'd