Selected quad for the lemma: cause_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
cause_n	king_n	power_n	subject_n	2,545	5	6.8305	4	true

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A49982	An account at large of the Right Honourable the Earl of Danby's arguments at the Court of King's-bench at Westminster, upon his Lordship's motion for bail, the 27th day of May, term. pasch, 1682 together with the judges answers and the Earl's replyes, as they were then truly taken.	Leeds, Thomas Osborne, Duke of, 1631-1712.; England and Wales. Court of King's Bench.	1682 (1682)	Wing L918; ESTC R863	28,531	31

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

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

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