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
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 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
in the Exchequer and Recognizance entred into by the said Fountaine to abide the Order of the House of Lords and after the Parliament was Dissolved the Council of the said Fountaine did Insist on the said Order before the Barons that the House being possest of Mr. Fountaines Cause and Security having been given by him to abide the Order of the House that no Proceedings ought to be had in the Exchequer upon the said Decree until the matter on the Appeal was determined before the Lords Notwithstanding which and that Mr. Fountaine produced the Lords Order in Court and produced the security allow'd yet the now Barrons Declared and Ordered that the Decree by them made should be proceeded on against the said Fountaine in the Court of Exchequer And a proceeding hath been had accordingly By all which he Observed That the Inferior Courts did proceed upon matters forbid as much by the House of Lords in the matters of Appeals and Writs of Error as it was upon Impeachments and yet that the reason was plain why they did so for that the Parliament might proceed again upon the same Appeals and Writs of Errors notwithstanding those proceedings in the Inferior Courts in the interval of Parliaments for that none of those Acts of the Inferior Courts does so hinder the proceedings of the Superior but that the Plaintiff in Parliament may revive the same matter there again by Scire Facias or by Re-summons c. But he said It was never heard of that the Lords themselves did proceed again Ex Officio without the Petition of the Party to revive the Cause And so he said in the Case of Impeachments that the Lords would no more proceed Ex Officio upon that neither unless they were called upon by the Prosecutors and then their Lordships proceedings upon the Impeachment would be no more hindered by the Bailing of him in the Inferior Court then they were in the other Cases by the Executions and Sequestrations which are Granted in the intervals of Parliament which were for the the prevention both of DELAY and of FAILVRE of JVSTICE Besides he said If this should not be done how could it be known whether the Prosecutors of an Impeachment from the House of Commons who are never the same Men in a new Parliament will proceed any more upon a former Impeachment For he said it had many times fallen out otherwise and he Cited a late Case of the Lord Mordant who was Impeach'd upon Articles in one Session and having taken out a Pardon during the Prorogation was never more called upon nor never question'd upon the former Impeachment although the very same Parliament sat again which had Impeach'd him and therefore he said That the Case might more probably happen to fall out so when a new Parliament should meet again which would consist of new Men. He said It was likewise to be Observed that although the Transcript of the Record in a Writ of Error might have Days of continuance yet no Supersedeas is grantable and he said That if the Lords Order be no ground for a Supersedeas on a Writ of Error why the lying of an Impeachment should be a ground for Confining a Man within Fower Walls all his Life he was sure must be both less reasonable and less just As Liberty was more valluable then Property and without which Property could be of no comfort In the next place he Observed That if the Order should be continued litterally to mean that the Impeachments as well as the Appeals and Writs of Error and the Incidents relating to all of them should remain in the same State they were at the Dissolution of THAT PARLIAMENT mentioned in the said Order his case thereupon he said would be quite different from any others for that he was not under any Commitment at the Dissolution of THAT PARLIAMENT nor at the time when THAT ORDER was made but was then at liberty to be a sitting Member of that House and by a Vote of the House had leave to continue so for that as he had already Observed the Date of the Order was the 19th of March 1678. and the Warrant of his Commitment did appear by the return before the Court to be the 16th of April following Insomuch that he desired the Court to take notice that the strict Letter of the words Statu Quo in the Order compared with the time when the said Order was made would be an Argument to set him in a State of Liberty as he then was He then told the Court That by what he had said he hoped he had made appear that the Order did not afford the least shadow for the hindering of his being Bailed but that on the contrary the Reasons were much stronger for the doing of that as it related not only to him but to the Liberty of the Subject in General then for the proceedings which the Inferior Courts do daily practice upon Appeals and Writs of Error which are but for Property and are comprised in the same Order and therefore he said That he hoped he should at least find the same favor in a Case of Liberty which is allow'd every day in Cases of lesser Moment He then said that although it did not concern his particular Case Yet for the sake of English Liberty it self he could not but say something further upon this point for he could not but be of opinion That if the Order had directly forbid Bail which it was far from doing and besides the Lords own practice had shew'd their meaning to the contrary by the Bailing of a Commonnor whose Crimes were declared to be greater then his and in which Case they made no Non Obstante to their Order but take that to be still in the same force towards him as towards any others who are in Custody yet he said In that Case if such an Order should be found to be against Magna Charta and the Fundamental Right of the Liberty of the Subject as any thing must be which does Subject any Man to an INDEFINITE IMPRISONMENT he conceaved that of Right that Court ought to free any Man from such a Slavery for he said he could give it no better a name and he then Cited an Argument of the Earl of Shaftsburyes upon that point which that Lord argued in that Court upon an Habeas Corpus when the Court agree'd they would have Bailed him had it not been in a time of an Adjournment only of the Parliament his words he said were That this Court will and ought to Judg AN ACT OF PARLIAMENT VOIDE if it be against MAGNA CHARTA and more might it Judg of AN ORDER OF THE HOVSE OF LORDS that is put in Execution to deprive any Subject of his LIBERTY and as he said this could not be denyed to be Law so he was confident the Earl of Shaftbury was still of the same mind and so must every Lord in England be or when they consider their own Cases they
Imprisoned for that whenever his Majesty is pleased to call a Parliament he will have remedy and that he must be content to await the King's pleasure when he will call a Parliament He took those to be fuller Arguments than any himself had made to prove that his Imprisonment was Indefinite and at the Kings pleasure so that he was now more fully confirm'd than ever to be of that Opinion and wisht that every man that heard that Doctrine given for Law might fully consider the consequences of it He said further that his Lordship had mistaken him in thinking that he had said he was under a Temporary Indefinite Imprisonment for that he had said he was under an absolute indefinite Imprisonment and that his Lordship had rather proved him to be so than shewed any thing to the contrary nor did he know what Temporary Indefinite did mean The Lord Chief Justice then said That he was not a Judge at that time when the Judges Opinions were asked but desired his Br. Jones to relate how it was Mr. Justice Jones then said That he remembred the Case had been put to the Judges Whether the Lords in the Tower might be Bayled and that it was then the Opinion of the Judges that they might not but he said he did think the Earl of Danby was not particularly concerned in the question at that time but that it related to the Popish Lords only and that there was much difference betwixt his Lordships Case and theirs Besides he did think that was at a time when there was a day appointed for the meeting of a Parliament The Earl of Danby then said that the question which was put at that time to the Judges about the Popish Lords did not concern his case at all for that it differed from theirs in very many particulars which he had already mentioned viz. Of no Oath against him No special Treason alledged c. which he was loth to trouble them with Repeating again but he supposed that the then Opinion of the Judges ought not to be made any Argument against him He said also that the Lord Chief Justice had argued very strongly for him For that it was true That the King might call a Parliament when he pleased but if therefore a Man must stay in Prison till the King did please to do so he may by that very Argument lye there all his life-time if the King pleases which confirm's what he had been a great part of this time labouring to prove and he said he must confess he did expect to have heard stronger and more powerful Arguments to have convinc'd him that he was in the wrong in what he had said but that now he was more incourag'd than before not to give over a Cause which did so much concern every Man in England The Lord Chief Justice then said that his Lorship was mistaken in believing that That Court did keep him in Prison for that he was not keptin Prison by them but by a superiour Court which was too big for them to meddle with or to examine what they did To this his Lordship answered That he had wrong done him which must be done by some body and that it was a Maxim of the Law That the King could do no man wrong being advised by his Courts besides that his Majesty had twice shew'd his Consent in that Court to have him Bayl'd Neither could he say that the Lords did him wrong because there was nothing in their Order to hinder his being Bayled besides their own practice to the contrary and it seemed now to be said that it was by the Law and not by the Order that he was kept a Prisoner He said he would not say that That Court did keep him a Prisoner but by some body he was sure he was kept Prisoner but perhaps it might be by the Stars since he could not find who it was upon Earth that did it He concluded that if he were legally Imprison'd yet by Magna Charta and the Petition of Right c. It was impossible for an English Man to be without some certain prospect of relief in a reasonable time they being to have Justice done them by the Law at all times and without delay and that he was now in the Kings proper Court for Justice wherefore as his Lordship had given his own opinion so he did desire that every Judge would be pleased to deliver theirs severally Then Mr. Justice Jones said that he was not ready to give any present Opinion there having been so much and some things so materially said by his Lordship but that for his better satisfaction he did desire to ask his Lordship a question in a point which did much stick with him and would go a great way in guiding his Judgment and he was confident that his Lordship was as able to give him an answer to it as any Man which was this His Lordship he said had been charg'd with Treason by an Impeachment and had pleaded a Pardon to the Impeachment before the Lords He said he took that Plea to be a Tacite Confession of guilt in Law though the Party were never so innocent and then it had been a Tacite pleading of Guilty insomuch that he did believe there could be no admittance of any Second Plea and if so he did confess he did not see how that Court could then have any thing to do with his Lordship in that Case but it was what he had not yet well considered though at present he took the Law to be so and he did desire to hear what his Lordship did say to that His Lordship answered that he gave him great thanks for letting him clear any Objections and giving him liberty to answer them as well as he could That this indeed was a question of Law which he was but little vers't in but that he was at present able to say that he had read the Opinions of some great Men of the Law to be otherwise and instanced what the Lord Goke had said upon the Case of Grauesend Bishop of London 7. E. 3. who did get a Writ of Discharge to the Kings Bench and did not take a Pardon upon which he observed the said Lord Coke to have said That it may be he thought that the taking of a Pardon would have implied a confession of the fault and therefore went a new way but that was a mistake for that no Man that is wise and well advised will refuse God and the Kings Pardon how often so ever he may have it for there is no Man but offendeth God and the King almost every Day and the Pardon is the safest and surest way And though at present he said he was not provided of Precedents in the Case yet he remembred there was a Case of a Coyner tried at Durham upon a Pardon where the Pardon proved defective and yet he was allow'd to plead over And he told him that the same question had been moved in
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