his Lordship's being Bailed His Lordship did thereupon say that this also was particular in his Case and he did believe there was scarce a Precedent in the World of the King's Prisoner and at the King's Suit not being Bailed when there hath been the King's Consent to it unless where the Prisoner hath not been able to find sufficient Security for his Appearance to abide his Trial. For that the two only Justifiable Grounds for the Continuance of Restraint by the Law are either for keeping the Party from being able to doe any harm by his being at Liberty of which the King is the best Judge or for securing the Party to abide the Judgement of the Law in which the Court ought to have good satisfaction and so they might have sufficiently in his Case He said that the Precedent would be no less strange and new against the King than against himself if they should not permit him to be Bailed under such Circumstances For he had heard that the Law did admit of no Absurdity Now he did desire to know how any thing could in reason be more absurd on behalf of the King than if the King's Prisoner and at the King's Suit should be kept in Prison by any of the King's Courts against the King's Will Or how said he can any thing be more dangerous to the Subject or be a plainer failure of Justice whatever may be pretended to the contrary than to say that there can be any such restraint of English liberty as cannot obtain so much as Bail but by the leave of the House of Lords When that House can neither meet but when the King pleases nor can never sit longer than he pleases So that to say a Man shall be a close Prisoner I mean by that a Prisoner without Bail for Bail it self is Imprisonment in the Eye of the Law till he shall be discharged by the House of Lords is to say that a man shall be a Prisoner during the King's pleasure which was the Great Grievance complained of when the Petition of Right was granted and that was thought to have fully and for ever Redressed that Grievance But if after so many heats and disputes which our Ancestors have had with the Crown about their Liberties this Doctrine should now be admitted for Law We would seem to endeavour as much as in us lies to bring it to this Conclusion and be our own Felo's De se That the King shall have a way found out by our selves and without his seeking how he may Imprison any Man or number of Men when he pleases in a Parliamentary way and by Dissolving that Parliament he may keep them as long as he pleases in a Prison without remedy But that he shall neither have power to Relieve us himself by his own Authority nor by his Courts of Justice So as in short by this Doctrine The King should only have power to hurt his Subjects as much and as long as he pleases but should not be able to doe them any Right if he would and then we shall have Magna Charta and the Petition of Right Reverss'd instead of receiving that benefit by them which the Kings of England have been so Gracious as to give us and all the Learned Writers upon those happy Laws of Liberty have told us we are secure under at all times and against all Accidents whatever He then begg'd leave to observe to his Lordship what he found in my Lord Chief Justice Coke's Comments upon Magna Charta who said that the words Nulli Vendemus Nulli Negabimus aut Differemus Justitiam vel Rectum are spoken in the Person of the King who in Judgment of Law is always present and repeating the said words in all his Courts of Justice And therefore says he every Subject in the Realm may at all times have remedy by the course of the Law and may have Justice done Freely fully and Speedily without delay for that Delay is a Sort of Denial The said Lord Coke observes further that those words of Magna Charta are fully Expounded by latter Statutes viz. 20 E. 3. c. which do direct that there shall be no delay nor hindrance of speedy Justice to any man neither by any Seal nor by any Order nor any Writ whatsoever neither from the King nor from any other nor by any other Cause Now whatever may be said out of other Considerations he said no Man can deny but that there is great delay of Justice to say no worse of it to any Man who through no neglect of his own can neither get Trial nor Bail in above three years although his Crimes were never so great And he said he durst be confident that the Makers of Magna Charta did believe they had secured all English Men from ever being under the possibility of such a Danger and that he made no question at all but that by Law we are so He said that the said Lord Coke does say in his Comment upon the 15 th W. 1 o. where he speakes of what things are Baileable and what are not and names Treason amongst the things not Baileable that is says he such offences shall not be Replevied by the Sheriff but all or any of these he saith may be Bailed in the King 's Bench. And he said he had also some of the present Judges opinions to shew in this point which he desired to Reade out of a Copy of the Lords Journal viz. 23d Decem. 1678 the Question being put whether the Lord Treasurer should withdraw 't was carried in the Negative and on the 27th of the said December the Question being put whether the Earl of Danby Lord High Treasurer who stands Impeached by the House of Commons should be Committed It was Resolved in the Negative And it was the same day proposed to the Judges whether the Judges can Bail any Person in Case of Misprission of Treason wherein the King's life is concern'd To which Sir William Scroggs Lord Chief Justice of the King 's Bench Sir Francis North Lord Chief Justice of the Court of Common-Pleas Justice Windham Justice Jones and other of the Judges then present gave severally their Opinions that the Court of King's Bench may take Bail for High-Treason of any kind if they see cause He cited the Lord Coke also in his Comment on the 24 th W. 2 o. where he says that it is a Rule in Law Quod Curia Regis non debet Deficere Conquerentibus in Justitia Exhibenda And the reason of this is that a failure of Justice may be prevented which he frequently says is Abhorred by the Law So as it appears that The Law Abhors all failure of Justice and he said that if such failure do appear in his Case or any Man 's else no Order can license such Failure nor no Court can Justify the not giving Relief against it and he said he should either make such failure appear or his Lordship meaning the Lord Chief Justice would
be able to tell him where he might repair for Justice which both Magna Charta and the Petition of Right are understood to have provided at all times for the Subjects Liberty But if his Lordship could not inform him where he might appeal forthwith for his Liberty in that Case he said that for that reason alone were there no other he ought of right to be admitted to Bail by that Court till he could be brought before such a Judicature as had power to discharge him He observed also that the Lord Coke in a Chapter on the King 's Bench did say that that Court might Bail for any Offence whatsoever and that in the said Chapter it was particularly observed that there had been such care taken by the Law to avoid failure of Justice even in small matters in comparison of Liberty that he gives there an Example concerning a Clerk or Officer of that Court For he takes notice of what things and against whom that Court hath power to hold Plea by Bill And amongst those he names against any Officer or Clerk of that Court and gives the reason because if they should be Sued in any other Court they would have the Privilege of that Court which might be the cause of a failure of Justice and from this his Lordship said it did appear that the Law intended that there should be no failure of Justice by the privilege of any Court how great soever it was for that as was said before the Law did abhor all failure of Justice And he said if such care had been taken against a failure in such small matters and not in what concern our Liberties all English men ought Justly to break out into the like Exclamations as the same Lord Coke and many others did in their Speeches in Parliament and in their Pleadings 3º 5º Car. upon the Arguments of the Grand Habeas Corpus at that time where the Lord Coke breaks forth into this Expression Shall I have an Estate of Inheritance for life or for years in my Land And shall I be Tenant at Will for my liberty Shall I have property in my Goods by the Laws And not liberty in my Person And thereupon he tells us That Perspicuè vera non sunt probanda As taking from granted that our liberties were not to be doubted where our properties were so secured And the King says he had distributed his Judicial power to Courts and to his Ministers of Justice Who are to see right done And he said the Lord Cook gave the Reasons of those Laws which are against undue Imprisonments and that one of those is for the indefiniteness of time which he says may be perpetual during Life and that his words are That it is unreasonable to think that a Man has a Remedy for his Horse or Cattle if detained and none for his Body Indefinitely Imprisoned For that a Prison without any prefixed time is a kind of Hell And here his Lordship said that he hoped the Court would either allow him Bail or tell him a prefixed time when he should be Tryed or Discharged he did then also Quote the Case of the Duke of Suffolk 28 H. 6 and the opinions of Prescot and Fortescue who were eminent Judges who said that he ought not to be Committed though for Treason without Especial Cause of the Treason shewed which had not been in his Case He further said That many other Principal Gentlemen of that Parliament had spoke most sensibly on the same Subject of Liberty and amongst the rest Sir Robert Philips had said To have our Liberties which are the Souls of our Lives taken from us and to be pent up in Goals without Remedy by Law and this to be so adjudged for so that Court had then thought sit to deny Bail for Reasons which were at that time also best known to themselves he cries out Oh improvident Ancestors Oh unwise Fore-Fathers to be so curious in providing for the quiet possession of our Lands and to neglect our Persons and Bedies And to let them lie in Prisons And without Remedy durante bene placito If this be Law what do we talk of our Liberties This says he is Summa Totalis of all Miseries He said also That Mr. Selden did in the same Parliament argue at a Conference with the Lords That in all Cases where any Right or Liberty belongs to the Subject by any Positive Law written or unwritten if there were not also a Remedy by Law for enjoying or regaining of this Right of Liberty when it is violated or taken from him the Positive Law were most vain and to no purpose and it were to no purpose for any Man to have any Right in Land Liberty or other Inheritance if there were not a known Remedy by which in some Court of ORDINART JVSTICE he might recover it and in this Case of Right of Liberty of Person if there were not a Remedy in the Law for regaining it when it is restrain'd it were to no purpose to speak of Laws Here de desired leave to shew his Lordship what Sir Nicholas Hide when sitting as Lord Chief Justice in that Court did say on this occasion viz. That the Kings pleasure is his Law should take place and be Executed and for that do we sit here and whether the Commitment be by the King or others This Court is the place where the King doth sit in Person to do Right if Injury be done and if it appear that any Man hath Wrong done to him by his Imprisonment We have Power to Deliver or Discharge him And he further said That the same Lord Justice Doderidg Jones and Whitlock Answering the Prisoners Council at that time did say the Attorney General had told them That the King had done it and that they the Judges do ever trust him in great Matters and here he took occasion to say That he hoped that the Kings Consent to his Bail and his Declaration of his Innocency would be now as much trusted in this Court He Cited also the Arguments of Mr. Calthorpe for Sir John Corbet on the same occasion who sayed That admit the Commitment were lawful yet when a Man hath continued in Prison a reasonable time he ought to be brought to Answer and not to be continued still in Prison for that it appears by the Books of our Laws that Liberty is a thing so favour'd by the Law that the Law will not suffer the continuance of any Man in Prison longer then of necessity it must He Cited also Mr. Hackwell who said upon the same occasion That the Law admits not the Power of Deteyning in Prison at pleasure when the Imprisonment is but Pro Custodia for a Man by long Imprisonment might otherways be Punished before his Offence and he mention'd an Expression of his That long Imprisonment was vita pejor morte He mention'd how the Commons at the end of the Parliament 3 Car. did desire That the Judges might declare
answered And if it might not seem too great a vanity to say although the true reason do's take away the vanity of it because it would not be for his but for their own sakes as what may happen to be their own Cases he said he doth believe he could have the Major part of the House of Lords to be his Bayl in this Case and some of those very Lords who were for the making of this Order although not in that sense which would seem to be put upon it In so much that there would be no more to fear in the Granting him Bayl than he hoped there was either Reason or Justice to deny it And he doubted not but he was there before very just Judges who would duly consider what he had said The Lord Chief Justice then speaking did say That the Earl of Danby had seemed to reflect upon the Court as if they had denied him Justice in not hearing his Counsel Then the Earl of Danby desired leave to interrupt his Lordship saying That his Lordship had mistaken him for that he had said no such thing of that Court nor did he mean it of that Court but said it was very well known that his Counsel had been forbid to plead for him in another place which was then acknowledged by Justice Jones to be very true The Lord Chief Justice then proceeded and said That for his Lordship's saying they needed not to fear because he did believe the Greatest part of the Lords would be his Bayl That it was not the fear of another Court that had any kind of influence upon them or that they should do such things as they feared to be called to an account for but that they were to govern themselves by the doing of Justice That they had heard his Lordship with a great deal of patience and that he had said many material things and with much acuteness and that they were not sensless of the hardship of his Lordships Case and of the greatness of his sufferings That they were likewise sensible of the Kings desires that his Lordship should have no longer Imprisonment than the Law requires and he confessed that the King had done as much as lay in his power That it was not denied because that Court could not Bayl for Treason for that they had a power to Bayl in all Cases whatsoever if the Court saw cause Neither would the Indictment which was found against him about Sir Edmond-Bury Godfrey have hindred nor was it the Order of the House of Lords which hindred them But that they were to act there according to Law and he prayed his Lordship to consider that they could not relieve him according to Law That he did agree to some things mentioned by his Lordship and that it was a very hard Case he should lye so long in Prison but here was the misery they could only compassionate him for that his Lordship was imprisoned by an higher Hand and where they had no power to intermeddle He instanced in Indictments for Treasons and several other great Crimes in which they could Bayl men but in this Case the Supream Jurisdiction of the Nation had laid their hands upon it which was attended by the House of Commons with an Impeachment Whether their Lordships had cause or not cause to commit his Lordship they could not Inspect But that they ought to believe that his Lordship was justly Committed and that their Lordships in their mature Deliberation would do nothing unjustly He said That they had a Jurisdiction over all the Courts in the Kingdom that only excepted and as it would be very Incongruous for an Inferiour Court to Bayl whom they had Committed or to call their Processes in question so would it be in like manner for them to do in this Case because the Lords exceed their Jurisdiction and were above them He said also That the Opinion of all the Judges in England had been taken therein and had delivered their Opinions that he could not be Bayled and that the truth was his Lordship was imprisoned by too high a Court for them to Bayl him But that his Lordship was not Indefinitely Imprisoned as he had alledged for whenever his Majesty is pleased to call a Parliament his Lordship would have remedy That the King has power to do it when he pleases and for his Peoples good no doubt he will when he sees fit But that at some time the Circumstances of State differ from other times and that it may not for some space of time be thought convenient and though this may prove mischeivous to a single Person or to two or three Persons yet such things must be endured for the good of the Publique He said also That if that Court should commit a man for High Treason and the King should Adjourn them from time to time that man could not be Bailed untill they sat again So that he must confess as his Lordship had said that as this Case did happen he was under a Temporary Indefinite Imprisonment He concluded which telling his Lordship That he must be contended to wait the Kings pleasure when he would call a Parliament That for his part he was before of Opinion that they could not Bayl his Lordship and he was so still The Earl of Danby to all this answered that he must confess his Ears did tingle to hear his Lordship say That the King had done 〈◊〉 much as lay in his power when his Majesty is bound both by his Coronation Oath and by the Laws to see right done at all times to his Subjects and he desired to know whether this was not the Kings Court and whether he had not deputed a Power to them to see right done to all accordingly He said also that he was now under greater amazement than before since his Lordship had both granted That this Court could Bayl any Treason and that the Order of the House of Lords did not hinder it which till now he confest he had taken to be the only obstruction to his Liberty That he had hoped he had satisfied his Lordship that although he was Imprisoned by an higher hand yet that the Bayling of him did not intermeddle with the Jurisdiction of that higher Judicature and he had yet heard nothing to shew him that it did That for what his Lordship had said of the Opinion of all the Judges in England being taken in his Case he must needs inform his Lordship that That was a mistake for that the Opinion of the Judges had never been asked in his particular Case saving once upon his Petitioning the King for Liberty to go to his Countrey House at Wimbledon with a Guard or otherwise as his Majesty should think fit which Petition was referred by his Majesty to the Judges and they according to their wanted prudence and caution did only Report that they thought his Majesty could not Legally grant the Petitioners request That whereas his Lordship said That he was not Indefinitely
and half after his Imprisonment that he was not a Week without Endeavours used by strange People to get to speak with him and such as he had reason often to suspect to be Knights of the Post amongst whom the story of one Magrath another Irish Man he said was notably remarkable in his endeavour under pretence of kindness to have made him their Tool to prove that Sir Edmund-Bury Godfrey had killed himself but he said he had the good fortune immediately to detect that Villany as he hoped yet to live to doe of some others but that in the mean time he foresaw that he was always to be a particular Object of the malice of such men so long as he was left under this Confinement from which he saw no hopes to be relieved but by that Court where the Law Directs every English man to come for Justice that is oppress'd in his Liberty He said he hoped his Lordship would forgive him for having been a little tedious on that Subject of Sir Edmund-Bury Godfrey because his Reputation had been so much Exposed in that particular and before that Court. After his discharge from that Indictment he said there seemed to be a probability of the Call of a Parliament in some short time and whenever he could give himself the least hopes of that he resolved to trouble no other place But that now he had not the least prospect of that kind and that he had been a Prisoner above three years and yet could safely swear he was without the knowledge to that day for what real Crimes he was Committed only he knew that the name of Treason had been laid to his Charge without saying wherein the Treason consisted He said he came therefore now to that Court as the only proper place for all Persons to resort to for their Liberty and he was sorry that he was put to the great disadvantage of speaking in his own Cause but because he saw the last time he was there that some fault seemed to be found with his Councils for urging things which seemed to relate to matters of Parliament although upon a due consideration of his request there is nothing in it which does touch their Jurisdiction he had chosen rather to rely upon the Courts pardoning his defects than put any further hardships upon those Gentlemen who had been his Council to whom he had been more beholden than they had been to him for that they had undergone some unheard-of rebukes already in another place for offering to be of Council with him though in matters of Law which he believed had never been heard of but in his Case and he hoped that when all his Circumstances shall have been well considered he shall be the last English man that will ever have so many hardships put upon him as will appear to be through every part of his Case In the first place he said that he had been both Accused and Committed without any Oath or Affidavit made against him for any Crime whatever Which had been in the Case of no other Lord but himself and he did believe of no other Man Secondly That there was no particular Treason mention'd in the Articles against him only the word TRAITEROVSLY had been applyed to things which were not Treason if they had been true as was then declared by Sir William Jones the King's Attorney and he said there were good store of Witnesses to prove that when it could not be maintained by Argument in the House of Commons that any of the Crimes mention'd against him were Treason It was answered by one of the long Robe there who would not have spared to have assigned the Treason had there been any that however they ought to give the title of High-Treason to the Articles for that otherwise they would dwindle to nothing when they came into the House of Peers Now in the Impeachments of the other Lords not to meddle with the Truth or Falsity of their Accusers they were Charg'd with the highest Treasons in Name and upon Oaths made against them Thirdly When a short day was set by the Lords for his being heard and that he appeared that day accordingly his Council was then Threatned if they did dare to plead matter of Law for him Which he said was never heard of before in any Man's Case whatever nor in the worst of times Fourthly He said if all the Articles had been true against him and had been Treason he had his Majesty's Pardon which he then shewed to the Court and demanded the benefit of it saying that that did pardon both his Crimes if he were Guilty of any and his Imprisonment and yet that both that Pardon and he had been Prisoners together for above three years of which he said he durst confidently affirm that his was the first Precedent since the Conquest Fifthly He set forth that he had not only his Majesty's Pardon but that there had been his Majesty's Declaration of it in his Speech to his two Houses of Parliament together with a Declaration of his Innocency and a Declaration that he would give him his Pardon ten times over if that were defective either in matter or form And in this also he said that his Case was not only particular from any others but that such Declarations of the King's Intentions to Pardon although the formal Pardons have not been obtained have heretofore been alone a ground to procure Bail at least when the Party has been the King's Prisoner and at the King's Suit which he supposed was not doubted in his Case Sixthly He said that he had not only been thus Committed and thus detained for above 40 Months but he had been kept a Prisoner without any prosecution for the greatest part of that time which is another sufficient ground by the Law for Bail But instead of a restraint Ad Custodiam he said he had undergone punishments greater than the Crimes alledged against him could have deserved if they had been true both by the length of his Imprisonment which was agreed to be a sufficient Ground for Bail both by the King's Council and the Prisoner's in the Arguments on the Grand Habeas Corpus 3º Car. as also in Melvin's Case 1º Car. and in Sir Tho. Darnell's and other Cases By the Inconvenience of his Accommodations in the Prison for above two years and a half of the time By two most dangerous Sicknesses in the Prison And By the loss of divers of his Family since his being in Prison who would some of them most certainly not have been in those places where they have been lost had he been at liberty He said he was informed that his Majesty had been again pleased to give his Directions to Mr. Attorney to give his Consent a second time to his Bail and he did beg leave to ask Mr. Attorney if it were so Whereupon Mr. Attorney did stand up and say that he had his Majesty's Directions to give his Majesty's Consent again to
themselves upon the matter why those Gentlemen had not been Bailed when by the Jtdges Arguments it was possible they might have been kept Prisoners all their Days To which he said Whitlock Answered First Not so but they did Remand them that they might better advise of the matter and that the Gentlemen if they had pleased might have had a new Writ of Habeas Corpus when they thought fit And Secondly That he had spent much time in this Court and that in such great Cases he never knew any Man Bailed without the King first consulted in it and the same he said was then said by the rest of the Judges of that Court. Hereupon he made two Remarques First That by this it did appear that upon Consideration That Court had alter'd their opinions in the Case of Bail just contrary to what their first opinions had been positive in and Secondly That the consulting of the King was ever necessary in such Great Cases and he said he did believe that there was not a Presedent where the King had agreed to the Bail that ever it had been denied He said That those Men whom he had Quoted were Men of no ordinary Understanding in the Laws and as the Judges then did at last acknowledg their sense of them to be right so he said He hoped our Laws were neither changed nor diminish'd in what related to the SVBJECTS LIBERTIES and he hoped that no Order of one House nor Ordinance of both Houses nor King alone nor King and either House alone could alter them and he rested assured that a King and Parliament would never alter them to the prejudice of Liberty He proceeded That if the Law were still the same it was heretofore it was plain that that Law did both give a power to that Court to Bail for all Offences whatsoever and for Treason perticularly and did require that the Subject should at all times find remedy in it when his Liberty was Restrained BY ANY CAVSE WHATEVER The chief Reasons he said why such large Powers had been given to that Court were principally for avoiding all failure of Justice and to the end First That the King may both have a means of giving Right to his Subjects at all times according to his Oath at his Coronation and according to the intent of Magna Charta and the Petition of Right And Secondly That there might be a constant place for the Subject to resort unto for Remedy at all times whensoever he was oppress'd in his Liberty And he hoped we were not now to learn a new Law that the King could neither keep his Oath nor maintain Magna Charta nor the Petition of Right without the Assistance of an Extraordinary Court which he may both chuse whether he will call or when he will call it and how long it shall sit which as he had said would put all under the King 's absolute Will He then said He took for Granted that there would be no dispute made in this matter but that there was an Order of the Lords which was supposed to stand in the way But he said If his Lordship would give him leave he would first say something to the Order it self and then he hoped to show his Lordship that it stood not at all in the way as to his Request of Bail and that it should neither be interfered with in the least nor the Jurisdiction of the Lords nor their Proceedings medled with in any kind by his being Bailed but rather owned and submitted to by his being Bailed to the Parliament And first for the Order it self He desired the Court to observe that it was Dated the 19th of March 1678. and worded as followeth viz. Die Mercurii 19 no Martii 1678 9. THE House this Day taking into Consideration the Report made from the Lords Committee for Priviledges that in Pursuance of the Order of the 17th Instant to them directed for considering whether Petitions of Appeal which were presented to this House in the last Parliament be still in force to be proceeded on and for considering of the State of Impeachments brought up from the House of Commons the last Parliament and all the Incidents relating thereunto upon which the Lords Committees were of opinion That in all Cases of Appeals and Writs of Error they continue and are to be proceeded on in Statu quo as they stood at the Dissolution of the last Parliament without beginning De novo And that the Dissolution of the last Parliament doth not alter the State of the Impeachments brought up by the Commons in that Parliament Now upon this Order he observed That it related as well to Appeals and Writs of Error as to Impeachments and seemed to be more fully worded to them than to Impeachments The Words STATU QUO and without beginning DE NOVO being annexed in the Order more particularly to the Appeals and Writs of Error whereas all that was said as to the Impeachments he observed to be that the Dissolution of THAT LAST PARLIAMENT doth not alter the State of Impeachments brought up by the Commons in THAT PARLIAMENT and are not words which strictly taken can bind after the Dissolution of any other then that Parliament But he said if the Order should be Expounded otherways yet that both the Law and the Practice of the Inferiour Courts were undoubtedly contrary In the Cases of Appeals and Writs of Error And he hoped no Court would take upon them to Expound the Order so as if they were at liberty to split the Order and to Judg which part of the same Order should be binding and which not for that that would be to meddle in a more Extraordinary manner with the proceedings of the Lords than he had desired Now as to Writs of Error he said there were full Resolutions of the Judges in the Case tho in times of Prorogations only when a day is set for the Sitting of the Lords House and he cited the Case of Heydon and Godsalve in Crooks Reports as also the Lord Ch. Just Hales who did not only grant Execution upon a Writ of Error depending in Parliament but did also Answer the Defendants Council who would have pleaded the Lords Order in bar of the Execution that he should always pay all due Respect to that Superiour Court of the Lords but that he must act according to Law and that he knew that the Lords did not intend otherwise And of this Lord Ch. Just Pemberton himself who he said had denyed Restitution upon an Execution lately taken out in a Case where a Writ of Error was and is still Depending in Parliament And in Cases of Appeals he said he was Inform'd that the Court of Chancery did not take any notice of the Appeal being in Parliament after a Dissolution but did notwithstanding proceed to Sequestration And he said that there was a late Precedent in the Court of Exchequer in the Case of one Fountaine where an Appeal was brought from a Decree
And he said That the House of Commons desiring that such a Power might have been Enacted into a Law though themselves would have been the first who would have repented such a Law did sufficiently denote That the Commons did not think the Order would be binding in Law after their Dissolution for otherwise what need was there of a Law if the Order was in force after Dissolution without a Law Upon the whole he said He thought the Distemper of that time had given more weight to the Order then any thing else and some of their Lordships on that Bench did know both in what an heat it had been made and how it had been since blown upon by the Lords themselves who he was confident would no more endure to have it Construed in that Sence which now seems to be put upon it of Subjecting Men to be under INDEFINITE IMPRISONMENT then they will endure themselves to be every Day put in the Stocks As he had said thus much to the Order it self so he said He hoped to make appear That the Courts Bailing of him would not at all Intrench upon the Order nor meddle with the Jurisdiction of the Lords nor their Proceedings in any kind For that he took it for granted That what is done by that Court and the Courts of Chancery and Exchequer on Appeals and Writs of Error was understood not to meddle at all with the Jurisdiction nor Proceedings of the Lords in those Cases and that this was just the same all being alike Subject to the final Determination of the Lords whenever they pleased to call the Appeal Writ of Error or Impeachment before them and without any prejudice to their Lordships Proceedings by any of those Acts done by that or the other Courts in the Interval of Parliaments Besides he said It had been usual to Bail in that Court to the Justice Seat in Eyre and yet that that Court could not proceed further He Instanced also That Courts allowing of the Pardons of Peers when pleaded there and yet that they had no power to proceed to the Tryal of a Peer And so he said There were divers other Instances of that Courts proceeding to such and such degrees of Exercising their power to avoid delays c. where the Court had no Jurisdiction to determine the matter Precedents he said were not to be expected which were exactly fitted to his Case because he durst be bold to say there never was such a Case before when well considered in all its Circumstances nor he hoped never would be again But he said That therefore both the Kings Power and the Peoples Liberties would be the more concern'd in what Resolution should be given by the Court in this Case of his He said There were Precedents of Discharging of Men Impeach'd in Parliament upon the Kings Writ to that Court Commanding the Proceedings to cease and they have been Discharg'd accordingly by that Court without any other Reason given in the Writ but because the King held the Parties to be Innocent and free from the Crimes Charg'd against them As in the Cases of Melton Arch-Bishop of York and Gravesend Bishop of London 7 E. 3. He mentioned also Hugh Spencer and Sir Thomas Barkley's being Mainprized to Parliament and yet that the latter was upon suspition for the Murder of a King viz. Edward the Second He said Inferior Courts had Bailed to Parliament about the Popes Bull c. Reg. Writs 274. He said A single Judg viz. Sir Robert Atkins had lately Bayled one for Treason and another for Murder and that he did himself hear his Justification of both allow'd as to the Legal part before the King and Council He said That Kings had formerly abolish't Accusations of Treason and Instanced a Case of Talbot against Ormond in the time of H. 6. And to shew how powerful the bare intention of Kings to Pardon had been heretofore he Instanced the Case of a man Indicted of Felony who without any Council shew'd forth a Charter of Pardon to the Court which was discordant to the Indictment and also to his name and yet because the Court perceived that it was the King's Intention he should be pardoned he was Remanded to get a better Pardon 26 Ass p. 46. And he did thereupon say That he hoped the Kings Intention of Pardon as to him had been sufficiently declared to the whole Kingdom And in short he said that if the matter was proper for the Jurisdiction of that Court before it was in Parliament it 's having been there did not take away the Jurisdiction from a Competent Court when the Extraordinary Jurisdiction fails which was not to be supposed could lay all other Jurisdictions asleep when itself was not in being and especially when that Competent Court should do nothing in Contradiction to the Proceedings of the Extraordinary Court as he hoped he had made appear that that Court would not do by the Bayling of him Whereas on the contrary he said it was most evident that Justice did fail in the highest concern which is that of Mens Liberties unless he could be inform'd when and where he might certainly be either Tryed or discharged for that as he had said before it was agreed both by the Council for the King and the Council for the Prisoners in the Arguments on the Grand Habeas Corpus that INDEFINITE IMPRISONMENT was held to be PERPETVAL IMPRISONMENT which the Law did admit in no Case where the Imprisonment was only AD CVSTODIAM And although his had been intended but AD CUSTODIAM yet it could not be denyed but it had already been ad Gravem paenam and without any perticular Cause yet shew'd for which he ought not to be Bayled by Law He then said that Littleton had declared in his Arguments 5 Car. That if Treason in General should be held to be a sufficient Returne yet that the Kings-Bench might Bayle And the said Littleton and the Kings Attorny in their Arguments one for the King and the other for Mr. Selden did agree that where the Party could not avoid the Judgment of the Law nor that there was no Danger by his being at liberty He ought to be Bayled after long Imprisonment and at that time six Months was taken to be long Imprisonment He said he had read a passage in the Lord Cokes Institutes where he spoke of such Imprisonments as he compared to the Imprisonment of St. Paul by the Centurion who first put him in Chains and then enquired who he was and what he had done He said he would not compare his case to that but that there was so much of resemblance in it that he had been in Chains or what was there meant by Chains which was a Prison for above three years on a pretence of Treason without being told to that day what kind of Treason he had committed which had been done in no bodies Case but his and by so much the greater was his hardship He had also both been
the House of Lords upon his own Case where divers Lords had declared themselves that they hoped it should never pass for Law amongst them that a Man should not have one Plea for his Life and gave for reason that if a Pardon was pleaded and not admitted to be good then the Prisoner had depended upon what he thought had been a good Plea but was adjudged by the Court not to be so and then if he should not be admitted to plead over it would be to insnare a Mans Life without giving him any Plea at all for it And he concluded saying he thought that this question was rather going into the Merits of his Cause than to what he only demanded which was but Bayl. Mr. Justice Dolben then said he must acknowledge there was a vast difference betwixt his Lordships Case and the Case of the Popish Lords in the Tower in many Material particulars which his Lordship had mentioned and he must confess that he thought it one of the hardest Cases in England He said also that he could not but differ from what his Br. Jones had said as to the not having liberty to plead over for that he was of Opinion his Lordship ought not to be debarred from having a second Plea if the Pardon should be over-ruled and if I did not mistake him he cited the instance of one Hetleys Case or such a name and he said that his Lordship had said so many things of great consequence that he thought it did very well deserve further consideration but if he should be put to give any present answer he must then say as my Lord Chief Justice had done that he thought they could not Bayl his Lordship but he thought it might well deserve further consideration Mr. Justice Raymond then said That his Lordships Case had so many weighty Circumstances in it as ought to make it to be very well considered before any Opinion could be delivered in it That for what had been said by his Brother Jones about the Pleading over or not he thought that did not properly lye before them in that place That his Lordship had said some things to which he thought full answers might be given but that he had also said some things to which he thought it would not be so easy to answer That for his part he thought it was a Case which might well deserve the consideration of more of the Judges betwixt this and the next Term and that he must acknowledge he must further consider it before he would presume to give any Opinion at all upon it A Council at the Bar then moved that a Rule of Court might be made to bring his Lordship thither again the first day of the next Term. The Lord Chief Justice seemed displeased with the forwardness of that Counsel and the Earl of Danby Excused it saying it was not moved by his desire or directions but said that was all one as to him whether there were any Rule of Court or no for that they were like to be troubled with him again and that he should not easily give over a Cause wherein he took the liberty of the Subject in General to be as deeply concern'd as himself and wherein he had found so little to be said against him that he did believe he should be as troublesome to them as ever Judge Jenkins had been heretofore in the deffence of English Liberty The Lord Chief Justice then standing up said My Lord your Lordship must for the present be content to be remanded and speaking to the Lieutenant of the Tower's Officer told him he must take back his Prisoner And then the Lord Chief Justice immediately lest the Court. FINIS