Mr. Jenkes I believe they may The King I know whose Scholar you are and I 'll take care that none such as you shall have to do with the Government Several Lords What was 't you mov'd What was 't you mov'd M. Jenkes My Lords What I spake was not in a Corner but openly in the faces of a Multitude and therefore cannot want a Witness to attest it A Lord. Just now it was a Court and now it is a Multitude Mr. Jenkes We Citizens pretend not to place our words so exactly inform but that there may besome mistake in them but I think my expression was no great absurdity for though it were a Court yet the Persons there were so numerous that it may not be very improper to term them a Multitude Yet if I have failed in due expression I beg his Majesties pardon I know somewhat of the Customs of the City of London and the Powers and Priviledges of the Courts there and somwhat also of the Laws of England but what the Powers and Customs of this Court are I know not and therefore shall desire to say little lest I should unwillingly offend Lord Chancellour Sir Pray tell us who advised you in this matter The King Who advised you Mr. Jenkes VVhat I then proposed was consented to by the whole Court and so became their Act as I said before Lord Chancellour and Others Answer directly to the Question or declare you will not Mr. Jenkes Since I see your Majesty and the Lords are angry tho I am not sensible that I have given you any just cause for it I must not say I did it without advice lest you should be more angry and to name any particular Person if there were such would be a mean and unworthy thing therefore I desire to be excused all farther answer to such questions since the Law doth provide that no man be put to answer to his own prejudice The King We will take that for an answer Lord Chancellour Since you name the Law by the Law you shall be tryed Mr. Jenkes I thank you and this Board Lord Chancellour You may withdraw He immediately withdrew and the room being cleared of all his friends and other company then the Messenger was kept there for the space of an hour and an half and afâ—â—◠〈…〉 â—â—ing called in any more was by a Warrant of the Council sent to the Prison of the Gate-house within the Liberties of Westminster Soon after his commitment he demanded of the Keeper a Copy of the Warrant by which he was was commited as he might and by Law ought to have The Keeper gave him a promise of it but delaying the performance for two dayes Mr. Jenkes resolutely demanded it of him as his duty but could not yet obtain it Sometime after the Keeper sent him one voluntarily by his man with this excuse That before he had positive order to deny him one and now had to give it him The Copy of the Warrant WHereas it appears to his Majesty in Council by the examination of Sir Thomas Gold Sir John Shorter Knights Sheriffs of the City of London John VVells Common-Gryer of the said City and John Green one of the Attorneys of the Lord Mayors Court taken upon Oath before the Lord chief Justice Raynsford That Francis Jenkes of the said City Linnen-Draper did on the 24th of this instant June at a Common Hall then assembled at the Guild-Hall of tâ—â— said City for choosing Officers for the ensuing Year in a wâ—â— seditious and mutinous manner openly move and stir ' the persons thâ—n present That before they did go on to the choice of nevv Officers vvhich vvas the only occasion of that Assembly they should go to the Lord Mayor and desire him to call a Common-Counsel that might make an address to his Majesty in the Name of the City to call A New Parliament And vvhereas the said Francis Jenkes being novv called in and heard before his Majesty in Council vvas so far from denying or exicâ—â—ating his offence That be did in a presumptuous and arrogant manner endeavour to justify the same These are therefore to command you to take into your custody the Body of the said Francis Jenkes herevvith sent you and him to Keep safely until he shall be delivered by due course of Lavv for vvhich this shall be your Warrant Dated at the Council Chamber in White-Hall this 28th Day of June 1676. To the Keeper of the Gate-House VVestminster or his Deputy Lindsey Peterborow C. Craven G. Carter Lauderdale Northampton Carbery W. Maynerd Tho. Chicheley Danby Anglesey Arlington Bathe J. Williamson R. Carr Finch Ormond Bridgwater Hen. Coventry J. Ernle Robert Sowtwell NExt day being the. 29th of June divers of Mr. Jeâ—kes Friends waited upon Mr. Secretary Williamson and desired to become Bail for him but Mr. Secretary refused to take any Bail but told them if they did mind him of it upon Wednesday morning he would move it at the Council But Mr. Jnkes beleiving that to be as it proved but a delay ordered some of his friends to wait upon the Lords Chiefe Justice Raynsford and moved him for an Habeas Corpus ad Subjiciend Recipiend c. which accordingly was done but his Lordship denied to grant it Alleading no other reason but that it was Vacation though his Lordship could not but know that Writ to be the Subjects Right at all times as well out of Term as in Term and Mr Jenkes friends were ready to offer him multitudes of Presidents when it had been granted out of Term both anciently and since his Majesties Restauration Mr. Jenkes resolving to leave no legall course to attaine his liberty untryed upon Friday the 30th Of June at a General Seal did by his Counsel move the Lord Chancellor for an Habeas Corpus at first his Lordship did seem much surprized and did refuse to hear his Counsel but after a little pause his Lordship bid Mr. Jenkes Counsel to move it again the next Seal and ordered the Seal to be put off from Tvvesday the 4th untill Thursday the 6th of July Upon Wednesday the 5th of July Mr. Jenkes friend waited upon Mr. Secreatary Willamson and desired him according to his promise to move in Councill that Mr. Jenkes might be Bayled but he said he had spoake with the King and could do nothing without a Petition so upon Thursday the sixth of July being a Publick Seale Mr. Jenkes Counsell did again move the Lord Chancellor according to his Lordships order and asserted the Authority of the Lord Cook who is most clear in the Case 2. part Instututes fol. 53. Speaking of the VVrit of Habeas corpus in the Kings Beach 〈…〉 The like Writ is to be granted 〈◊〉 of the Chancery 〈…〉 as in the Kings Bench or in the Vacation 〈◊〉 the Court of Chancery is Officina Justitiae and is ever â—pâ—â—ed and never Adjourned So as the Subject being vvrongfully â—â—prisoned may have justice for the liberty of his person
â—â—â—â—ell in the Vacation time as in Term. And in the 4th Instit fol. 88. Speaking of the Court of â—â—â—â—cery he saith And this Court is the rather alvvayes 〈◊〉 for that if a man be vvrongfully Imprisoned in the Vacation the Lord Chancellour may grant an Habeas Corpus 〈◊〉 â—o him justice according to Lavv. And â—ide 4. Instit 〈◊〉 182.190 Thus the Lord Cook Mr. Jenkes Counsel did likewise ossâ—â— a President or two but the Lord Chancellour making light of the Lord Cooks opinion saying The Lord Cook vvas not Infallible And â—â—â—gâ—â—ng all that Mr. Jenkes Counsel offered over-ruled the matter denying to grant the VVrit On Tuesday morning July 11th at the Quarter Sessions holden for the liberty of Westminster Mr. Jenkes being still a prisoner in the Gate-house within that liberty did move by his Counsell to be bayled where this was the substance of what passed as it was taken by a by-stander Court We have no such Name in our Kalender and we sitting here by a limited Commssion can take no notice of any person that is not in our Kalender Council Every keeper of a Prison either in County or Franchise ought by the statute of 3. H. â— cap. 3. to certifie the names of every Prisoner in their Custody at the next generall Goal-delivery there to be Kalendered before the Justice of Goal-delivery that the partys may be delivered according to Law upon pain of 100 l. For every defalt there recorded and I demand that this defalt of the Goaler may be recorded according to that statute and that you would as you may command him to Kalender him now The statute was read Court VVe are no general Goal-delivery for we cannot Try severall felons but they must be tryed at the generall Goal-delivery for the County Counsel You are a generall Goal-delivery for all offences within the Cognisance of your Franchise and therefore unlesse the Fact for which he is Committed be such as is above your Cognisance he ought to be Tryed here and if it be such a Fact he ought notwithstanding to be Kalendered here that you may send him to the County Goal where he may be tryed Goaler I never did Kalender any man that was committed by the Councill Table Counsel The neglect hath not taken away your duty and as often as you have ommitted to do so so oft you have deserved to be fined and I do again demand of this Court that this default of yours may be recorded The Court inclined to the Goaler and would not record his default whereupon the Counsel proceeded Counsel Since you exclude him from the benefit of your present Commission I apply my self to you without respect to that as you are Justices of peace in general and as such you have power to bail any man bailable by Law except in some particular cases where you are restrained by statute Court By whom is he committed Counsel By the Council Board Court Do you believe the Council Board can commit to prison Counsel I admit it Court VVe don't know for what offence he is committed Counsel I have here a Copy of the Commitment and desire it may be read But the Goaler refusing to own it for a true Copy tho given by himself and the Court requiring a nicer proof that it was a true Copy than could at that time be made they â—â—â—erd the Counsel to attend in the afternoon and in the 〈◊〉 time the Goaler to give a true Copy In the afterâ—oon the Counsel appearing the Court called to him and asked him what he had to say Counsel I have now a Copy given and signed by the Goaler for a true Copy and desire it may be read The Goaler who was to prove it a true Copy upon the Counsels coming into Court took an occasion to slink away and the Court as if it had been by design were ready to take hold of that opportunity to evade the businesse but Mr. Jenkes friends fetched him back and he Swearing it to be a true Copy it was read Court What is it you demand Counsel What I did before that there being nothing in this warrant for which he is not Bailable by Law I demand that he may be Bailed Court You have taken a wrong course in comming to us Counfel I presume he applyes himself properly to you for he being a Prisoner within your Liberty you are the most proper persons to bayl him As Justices of the Peace you have power to bayl any man within your Jurisdiction bayl-able by Law and where you may bayl by the Law you ought to do so and I demand it for Mr. Jenkes Court Where do you find such power given to Justices of the Peace Counsel By the same Statute of H. 7. that I oited against the Goaler the enacting part whereof saith That the Justices of the Peace in every Shire City or Tovvn or tvvo of them at the least vvhereof one to be of the Quorum have authority and povver to let any suck prisoner or persons Mainpernable by the Lavv that have been Imprisoned vvithin their several Counties City or Tovvn to bail or mainprize unto their next General Sessions or unto the next Goal-delivery of the same Goales of every Shire City or Tovvn as vvell vvithin Franchises as vvithout vvhere any Goales be or hereafter shall be c. The whole Statute was read and the Court taking boâ— of the preamble said Court This statute was made for the prevention of bailing Felons not bailable by Law and enables us only to bail Felons bailable by Law Counsel The Preamble of the Act recites that mischief occasinoned by the Statute of 1. R. 3 But the Enacting part Repeales that Act and gives you a general power of letting any persons mainpernable by the Law to bail and I 'm sure no statutes made for the liberty of the subject ought to receive such a strait Construction Court Do you consider by whom he is commited the Privy Council Counsel I do and think that alters not the case Court He is commited by a superiour Court and we who are an Inferiour one cannot bail him Counsel It is not the Court that commits but the Fact for which the party is committed ought to direct you in Bail The Statute of H. 7. hath no such exception in it nor hath any other since put any such restraint upon you Court Would you have us Bail him after the Lord Chancellour and the Lord Chief Justice have refused to grant a Habeas Corpus Counsel They did not deny the Habeas Corpus because he was not Bailable by Law but because the Course of their Courts in their opinions would not admit it but however if you ought to Bail him as by the Statute I think you ought their refusal does not lesten your duty Then the Court put him several cases that did not at all reach the present case as they seemed to think themselvs by their faint urging them Court We doubt very much that any
inferiour Court can Bail a man Committed by a Superâ—â—â—â— one Counsel Scruples and fears do nor 〈…〉 Law 〈◊〉 â—â—out was once made in the Kings Benefâ—â— thâ— great case of Sâ—lden and others but the Law was for the â—â—soneâ— befâ—â—â— that time and was sufficiently settled then and 〈…〉 from that in reason 〈◊〉 〈◊〉 for that was upon a Habeas corpus out of the Kings Bench. Counsel That is but a circumstanciall difference The Habeas corpus from that Court is only to remove the prisoner and the cause before them that Justice may be done to him Mr. Jenkes is already within your Jurisdicton and the statute gives you Authority to Bail him and your Authority makes it your duty and I rely upon that Court We considerd upon it at Dinner and do belive it a rare case and fit to be advised upon and we will advise Why did you not move yesterday when my Lord Chief Justice was in Town Now there are no Judges in Town to advise with Counsel That we did not come yesterday was no design for he is not so fond of a Goal and if it be an indiscretion yet that is no sufficient reason to detain a man in prison however if you have power which you ought to know you have it as well when they are not in Town as when they are Is he Bailable by Law or not Court There is nothing in the Warrant for which he is not Bailable by Law Counsel For what reason then do you deny him Court We do not deny him but we will advise because he is Committed by a superiour Court Counsel No man ought to be imprisoned for any misdemeanour before Conviction without Bail and it is against the Petition of Right that any man Bailable by Law should be detained in Goal without it I don't know how by such denials as this the being Commited by a superiour Couâ—â—â—hâ—â— gâ—ow 〈◊〉 a reason but at present I think thâ— Petition of Right spoils it for being a good one Court You can give us no President of any one being Bailed by Justices at the Sessions who was commâ—tted by the Council Board Counsel I believe it is a rare case that a man should be forced to apply himselfe to such but I think I caâ— furnish you with an instance and that is of one Cannon a Quaker who was committed by the Privy â—ounsell about Christmas last and was Bailed at the Sessions of the Old Baily A pert By-stander no ways concerned suggested to the Court and the Court repeated after him Court He was commited to New-Gate Prison and was Kalendered there Counsel If you stick to the reason of being committed by a Superiour Court that is no answer but if it must be an answer Mr. Jenkes is committed to the Prison of this Liberty and ought to have been Kalendero here and then I do again demand that the Goaler be fined Court We think it a rare case and fit to be advised upon and our Commission we here sit by directs us to do so in difficult cases Counsel I told you before I have nothing to do with the Commission you hear sit by and your selves excluded me from it but apply my-self to you as Justices of Peace meerly and as such you ought to take upon you the knowledge of your Office Court In the great case of Selden that you Cited the Judges took two Terms to advise Counsel You very well know what Opinion was had of their doing so Will you advise upon it to Night with the Kings Counsel and I le attend you to morrow morning Court We think fit to advise with the Judges about it till next Sessions 〈◊〉 〈…〉 can easily interpret wiâ—â— such adviliâ—◠〈◊〉 〈…〉 say you apply your self to us as Justices of 〈…〉 then you may come to any two of us a fortâ—ight hence or more and perhaps we may advise in the mean â—ounsel I believe it will be a difficult matter to get any two of you together upon this occasion Mr. Jenkes finding all these common Doors to Liberty shut against him did by advise betake himself to another method not lesse legall then the former tho the Power granted by the Statutes to Justices of Peace and the constant issuing of the Writ of Habeas Corpus upon demand both more easy Courses have occasioned it to be of more seldom use Justice Filzherbert in his Natura Brevium an Author and a Book of Justly venerable Authority in our Law in hâ—s Chapter of Mainprise declars That If a man be taken by the Kings Commission and kept in Prison for Fellony or Misdemeanors be may by his friends put in sureties in the Chancery that he vvill appear before the Justice c. And be of good behaviour c. And that body for body and thereupon he shall have a Writ out of the Chancery unto the Sheriff or unto the Constable of the Castle vvhere he is Imprisoned to set him at liberty if he be Imprisoned for that cause and for no other Which words seem plainly to declare the Writ of Mainprise to be the subjects right and not to leave a discretional power to the Officers of Chancery in granting it But the scarcity of Presidents being the great Objection against the Habeas Corpus out of Chancery Mr. Jenkes resolved to offend no more in that kind and therefore caused a search to be made in the Rolls in the Tower for the Writs of Mainprise where a multitude of them was found and many in the case of a Commitment by the Kings command A Copy of one and a Note of severall others were taken out to Back the Authority of Fitzherbert With this provision on Monday July 17th four of Mr. Jenkes friends substancial Merchants attended with a Counsel went to the Lord Chancelour and tho upon tender of themselves as Bayl for him they might have demanded their Writ of Mamprise as the Subjects right without other formality yet they addressed themselves to him in a more respectfull manner by way of Petition thus To the right honourable Henry Lord Finch Baron of Daventrey and Lord High Chancellour of England The humble Petition of A. B. C. D. of London Merchants friends to Francis Jenkes now Prisoner in the Gate-House of Westminster sheweth That the said Fr. Jenkes was Committed to the said Prison by virtue of a Warrant a true Copy whereof is here unto annexed for a fact Bayl-able by Law for which and no other cause he yet remains there a Prisoner And that in this and all other cases of like nature your Petitioners are advised upon putting in Bayl in the Court of Chancery according to the antient course and usage thereof a Wâ—rit of Mainprise ought to Issue under the Great Seal to be directed to the Sheriff or Keeper of the Prison where such prisoner stands Committed to deliver the prisoner so Committed That your Petitioners being men of good Estates as shall if your Lordship require be made out to your Lordship
do desire and are ready to become Bayl for the said Fr. Jenkes according to the course of the Chancery and according to the Law The Petitioners therefore pray That your Lordship would accept of Bayl accordingly and that thereupon your Lordship would order a Writ to be made forthwith to be directed to the Keeper of the Gate-house for the discharg of the said Fr. Jenkes And your Petitioners shall always pray c. The petition being sent in to and read by his Lordship was returned by the Secretary with this answer That his â—ordship did very well approve of the 〈…〉 but since Mr. 〈…〉 commited by the Council Pâ—â—â—â— he thought fit 〈…〉 Petitioned 〈◊〉 should Bayl him But Mr. Jenkes friends not being satisfied with that answer pressed to speak to his Lordship and were by his Lordships order called in who comming towards them spake to this effect Lord Chief Justice Who Is' t that puts you upon these improper methods Counsel We presume this addresse to your Lordship to be a proper course in our case and is such as we have prsident for Lord Chief Justice Are you a Lawyer Counsel Yes my Lord. Lord Chief Justice Have you read Fitzheberts Brevium Look in his Writ de homine replegiando Counsel We have nothing to do with that Writ but it is by Fitzherbert that we are directed to this course in his Chapter of Mainprise where he saith what is before Citied and we are confirmed in his opinion by ampltiude of Presidents out of the close Rolls in the Tower I have the Copy of one here and the number and Roll of many more The president shown to his Lordship was this Ex Rol. claus de Anno Regni Regis Ed. 3. xi parte prima membra 28. Rex Senescallo Marescallo Hospitij nostri De deliberand Ricâ— Monyvvord a prisona salutem Cum Rich Monyvvord in prisona Mariscallcae nostiae per preceptum nostium pro quibusdam transgressionibus contemptibus nobis factis ut dicitur detentus existat sub custodia Jamtoris nostri ac Williel Stury Chivaleir Tho. Pride de Comitat. Salop Oliverius de Burdeaux de Com. Berkes Andreus Aubray Johannes Pisselan Petrus Fan de London coram nobis in Cancellaria no stra personaliter Constituti manuceperunt predictum Richard viz. qui libet corum corpus pro corpore habere coram nobis vel Justitiariis nostris aut Conscilio nostro quandocunque ubicun que volucrimus ad mandatum nostrum ad stand rect de transgressionibus contâ—mptibus aliis excessibus quibuscunque unde indictatus vel rettatus est quod bene fideliter erga nos Populum nostrum de cetero se geret vobis mandamus quod prefatum Ricard a Priâ—ona praedicta si ea occasione non alia detineatur in eadem deliber ari faciatis per manucaptionem supradictam Teste Rege apud Westmonast decimo nono die Martij P. istm Regem Convenit cuÌ„ Recardo Laur. Halsted Deput Algernon May Militis The Note of the Number and Roll of several Writs of Mainprise upon Surety put into Chancery shewn to his Lordship was this II. Ed. 3. pt 1. To the Constable of the Tower to Deliver John Brice II. Ed. 3. pt 1. mem 29. To the Constable of â—he Tower to deliver Bernard Pouch II. Ed. 3. pt 1. mem 28 To the Constable of the Tower to deliver Henry Compton Teste 26 Martij Eodem Rot. 23. To the â—onstable of the Tâ—wer to deliver John de Wesenham Teste 18 Aprilis 4â— Ed 3. pt 1. mem 6. Custod Forest For delivery of several persons committed for Hunting in Forests Since the Stat. 28 Ed. 3. Cap. 9. Eodem Rot. mem 10. The like Teste 20 Aug. Eodem Rot. mem 17. The like â—odem Rot. mem 25 The 〈◊〉 Will. de Clark 3. Rich. 2. mem 3. To the Sheriff of London to deliver Nich. de Svvederton Joh. Deye Teste 5. Decemb. Eodem Rot. mem 22. To the Justices of North Wales 〈◊〉 deliver Lloyd Lord Chancellour One President of discretion is worth a thousand of these Presidents His Lordship read the President and observing it to bear Teste the 19th day of March which could never be in Term asked When it was returnable And said It must be returnable in some Court at Westminster Counsel This President hath no Return neither doth the Nature of the Writ in this Case require one for it is only a Mandate to the Goaler to set him at Liberty upon Surcties first taken in Chancery for his appearance before the Justices which Justices and the time of his appearance I suppose are to be named in the Recognizance Lord Chancellour Whether there ought to be a Return is the Question Besides this is a Writ directed immediately to the Marshal of the Houshold and is a disserent Case Counsel With submission to your Lordship it makes no disserence who is the Goaler and those I have given your Lordship the Number and Roll of are to several Goalers Then Fitzharberts Nat. Brevium was shown to his Lordship and upon reading the words there If a man be Imprisoned by the Kings Commission c. His Lordship said that it was intended of one Imprisoned by virtue of a Commission out of Chancery Counsel I humbly presume that is not the sence of the Book the Presidents I have shewn your Lordship seem to Interpret it and are upon other Comments and Fitzharbert in his Abridgment Tit. Mainprize pl. 23. cites a Book Case that shews this to have been a course in the Chancery but we submit it to your Lordships Judgment Lord Chancellour A little submission in a proper Place will do but he hath a mind to come out with a high hand Counsel He has a mind to be discharged by 〈…〉 Warrant for his Commitment directs Lord Chancellour I am not to controll any Act oâ— the Privy Council Counsel At the last motion for a Habeas Corpus your Lordship was pleased to say That though that was not a proper method for Mr. Jenkes to obtain his Liberty by yeâ— there was one and upon that encouragement from your Lordship search has been made and this Course we have now taken found to have been the antient Course and we did presume the same that your Lordship meant Lord Chancellour You have used a great deal of industry to miss the right way Your Presidents of Edward the 3d. and Richard the second since three hundred year old I 'll consider off till next Term. Upon which Answer Mr. Jenkes his Friends withdrew Now the plenty of Presidents proved as great a fault as want of them did before and their Age which uses to add to their Authority and give them a greater respect made them contemned Such alwayes is the Success where Stat pro Ratione Voluntas In the Afternoon the Secretary that first carryed in the Petition came to Mr. Jenkes in a dissembled confusion and told him that he had