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
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 LONDON Printed for Charles Mearue 1682. AN ACCOUNT At Large of the Earl of Danby's ARGUMENTS At the Court of KING'S-BENCH Upon his Lordship's Motion for BAIL The 27th day of May Term. Pasch 1682 c. IMmediately after his Lordship was in Court the return of the Habeas Corpus was read and Mr. Sanders of Council for his Lordship did move the Court That whereas in Easter Term 1681 the Court had dismiss'd his Lordship with a Declaration that they would take into their Consideration till the Term following what answer they would make to what had then been said to them by his Lordship and his Council he therefore moved That they might now accordingly know the pleasure of the Court and that they would be pleased to grant Bail to the Earl of Danby But before the said Mr. Sanders could well have pronounced the foregoing words the Lord Chief Justice Pemberton did reprimand the said Mr. Sanders for having offer'd to impose upon the Court what had never been said by them saying that there was no such thing as their having said at any time that they would take the Earl of Danby's Case into farther consideration for that they had told my Lord of Danby the last time that it was not in their power to give him any Relief at all and that he therefore wonder'd and must extremely blame Mr. Sanders for moving the Court again in a matter to which they had already given such a positive Answer and could not but admire that he should so misinform his Clyent as to give him any such advice which could only be to the giving both him and the Court an unnecessary trouble To all which Mr. Sanders replyed that he humbly begg'd his Lordship's pardon if he had mistaken him for that truly he did understand that his Lordship had declared that he would take time to consider of my Lord of Danby's Case till the following Term but that if it was a mistake he must beg his Lordship's pardon and did believe the rest of his Brethren took it so as well as himself The Earl of Danby then spoke himself for about two hours and said to the Lord Chief Justice that he met with an Objection which he did not expect and that he must beg his Lordship's pardon not to let that pass for a mistake which his Council had affirm'd of the Courts having taken time to consider of his Case till the next Term after that of his Lordship's being last there for that his Lordship did therein appeal both to the rest of the Judges which were upon the Bench with him and to all other persons whatsoever who were then in Court whether his Lordship had not said that if he meaning the Earl of Danby pleased they would take time to consider of his Case till the next Term and he did declare upon his Honour that those words had been pronounced to him by my Lord Chief Justice himself and that he did then accept it as a favour from the Court and did return his humble thanks to them for it In so much that his Lordship said that he confessed he was very much surprized to meet with such an Introduction at the first entrance into a matter which he conceived to be of so great weight as he doubted not but he should make this Case of his appear to be But yet that it did give him reason to believe that he came with some prejudice before his Lordship and that they were so much prepossessed in this matter that if he did not think every Man in England would find that he might be concern'd in what resolution should be given in this Case as well as himself he should scarcely have ventured upon it though he had lain so long under so unreasonable a Confinement as he took himself to do and therefore he must desire their Lordships patience and attention to what he had to offer in his own behalf and as he believed in the behalf of the Liberty of the Subject in general His Lordship directing himself to the Lord Chief Justice said It was just now a year since he was before his Lordship in this Court and that he was assured that his Lordship did then please to tell him that they would take time to the following Term to consider of what they should thank fit to doe in his Lordship's Case But he said that care was then taken the first day of that following Term to prevent his coming there by an Indictment which was brought against him ready and dry'd as he had been told for his being privy to the Murther of Sir Edmund-Bury Godfrey He said he did not wonder at it Because there was nothing so black which had not been Invented to be said against him but he confessed he did wonder to hear that such an Evidence of an Irish Papist who was upon Tryal for his own Life and upon an hear-say only should be believed against an English Protestant by a Jury of English men and some of them Gentlemen but yet that that wonder had been much abated when he heard that the same Foreman had been as favourable in the Case of a Notorious Murther as he had been ready to find that Murther against him which had not the least probability in it and which no man could think of with more Detestation both of the Fact and of any Man that could have an hand in it than himself However this prevented him from coming there again till after notice had been given to Sir Edmund-Bury Godfrey's Brothers to know if they had any thing further to say against him on that matter and that he could get himself Discharg'd from that Indictment and as to the wretch himself Fitz Harris who had accused him he did two days before his Death send the Minister of the Tower to his Lordship to beg of him that before he died his Lordship would forgive him his having sworn falsly against him and he did consess that he was put upon it to save his own Life and did say by whom he was prompted to it and whether it proceeded from those Men who might think their Villanies discovered and so might fear they could no way be safe but by putting that matter yet farther against him or from what other Cause his Lordship could not tell but if his Lordship was not misinformed he did hear that some Men were still endeavouring to get something more of the same nature to be sworn against him if they can contrive how to make their forg'd Testimonies to agree about it He said he thought that time would have tired out the malice of such Bloud-suckers before now whom he had found so busie for the first year
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
would make their Liberties to be very precarious He proceeded to say That the Earl of Shaftsbury being allow'd to be a knowing Man both in the Laws Orders and Constitutions of Parliaments he would beg leave to Quote another part of the same Speech viz. That Mr. Attorney which was then Sir William Jones was pleased to Answer the Instance of one of his Lordships Council That if a great Minister should be Committed he hath the Cure of a Pardon a Prorogation or a Dissolution but says the Earl If the Case should be put why Forty Members or a greater number may not as well be taken without any Remedy of any of the King's Courts his Lordship said That Mr. Attorney-could not very easily Answer and if in this Case says he there can be no relief no Man can foresee what may be hereafter And in another place of the same speech he says He does not think it a kindness to the Lords to make them Absolute and above the Law for so it must be if it be Adjudged that they may Commit a Man to an INDEFINITE IMPRISONMENT He said He took these Men whom he had named for no small Authorities in this Age and the Earl of Shaftsbury he said was a Man still as much for the maintaining of this Order as ever but that his Lordship did shew himself at the same time to be for English Liberty and he plainly shew'd his own Sence both of this and of all Orders whatever which concern'd the Liberty of the Subject and declared that he took that Court to be the proper Judg of all such Orders He said It thereby appeared how sensible that Lord was that such Cases might concern Forty as well as One and Members of either House as well as other Men and without relief if it should be admitted that ORDINART COVRTS could not relieve and the Earl of Danby said That there was no Answering of these Arguments of the Earl of Shaftsbury unless it could be denyed That the King can Impeach as well as the Commons or that the King cannot Call and Dissolve Parliaments at his own Will and Pleasure For if he may as was not to be doubted he said He was sure every Man in England was in the same Danger when the King pleased and then he saw nothing whereby we had any Security but that we lived under a King who would not Exercise this Power over us which we will needs put into his hands although he does not desire it himself As if we were so weary of our Liberties that we would be Industrious in contriving how we might insensibly slide into those Slaveries which our Ancestors have been some Ages taking pains to secure us from and our Kings have been so gracious as to Grant and Confirm to us so many times over as they have done and which other Kings may be as ready to reassume hereafter as we are to give them away He concluded his observations upon that Speech of the Earl of Shaftsbury with taking notice that his Lordship had shew'd he was one of those Peers who would take it for no kindness to be made absolute and above the Law by such Orders of theirs being construed to extend to INDEFINITE IMPRISONMENTS He then repeated Sir William Jones his Declaration in that Court that either a Pardon a Prorogation or a Dissolution was a Cure against such Imprisonments and he observed thereupon that if that Doctrine were true that any one of those was a Cure against such Imprisonment and he could not doubt of it's being good Law then certainly he ought to find relief from his Imprisonment who had every one of those Cures on his side He then desired to put the Court in mind how in the worst of times Justice had taken place so far as to lay aside the force of Orders made in Parliaments after the Dissolutions of those Parliaments which made them although it was to the prejudice of the Interest of those Usurpers themselves He cited an Instance of one Sir John Stowel who by the Articles of Exciter was to have been admitted to composition for his Estate but yet contrary to those Articles the Parliament did afterwards order his Estate to be sold After the Dissolution of which Parliament Sir John Stowel pleaded by his Council which were Serjant Maynard and Mr. Latch that that Order was Dissolved by the Dissolution of that Parliament and that therefore the Articles were again in Force and that the Plea was admitted to be good and Sir John restored to the benefit of the Articles upon that Plea even by Bradshaw himself But he said he was sorry that he could neither have Sir William Jones to argue those points for him which he had used against my Lord Shaftsbury nor Serjeant Maynard to make good the Invalidity of Parliamentary Orders after Dissolutions but he said that it was not his fault and he doubted not but he was before more Just Judges than there was in those ill times and that he hoped that the Liberty of the Subject was not now more Precarious than it was in those days He added that if upon such Orders Men could not be Bayled in the Interval of Parliaments they would become Grievances equal to the Multiplications of Treasons in former Days which have some times been greedily made heretofore by Parliaments in Distemper'd Times but the Commons had never been quiet till they could get their Bear chain'd up and their Laws reduced to the old standard of Treason again But yet those things had been done by Acts and not by Orders of Parliament He desired them likewise to remember that it had been one of the chief grounds of the late War betwixt the King and his Parliament in which so much blood had been shed that an Ordinance of Parliament should not be held equal to an Act of Parliament and yet those were Orders of both Houses And now said he shall we be defending that an Order of one House only shall be Equivalent to a Law and shall be in force against our greatest and most sacred Laws of Liberty which have been so confirmed to us This said he I am not able to understand the reason of nor will any Man who shall give himself the least leisure to think upon it He then said He desired to ask any Man that then heard him or any Commonor of England who would but take time to consider this Case which may be any Man 's in England whether they would be contented to invest the Lords with such an Inherent Power over their Liberties which they can no more be exempted from then the Peers themselves And he said That the Lords had already made it appear that they would not have any such Arbitrary Power placed in them for that they had refused to pass a Favorite Act which was for their own Tryals only by reason of a Clause which was Incerted therein To have Enacted the Substance of this present Order into a Law
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
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