say that in this particular Case of my own I find only the word and name of Superior Court to be made use of against me but nothing in reality just as they were pleased in the House of Commons to use the word Traiterously in the Articles against me when there was not a tittle of Treason in them only that by calling it Treason it might serve to lay me where I am But my Lord I know no Court that is superior at this time to this Court where I am now and how any thing can be said to be depending in a Court that hath no Being I think will not very easily be defended from nonsence without having the Matter extreamly well explained and whenever that Superior Court shall have a Being my Cause will then be before it by my being Bailed to appear there And for saying it has laid its hand upon this Case of mine it ought to be shewn in what the Superior Court hath laid its hand upon me so as to keep me from Bail when neither that Superior Court it self though it were willing so to do is able to give me any Relief nor that I can get to be Tryed or Discharged elsewhere nor have any time prefixed when that Superior Court shall Sit as if there were no Justice left in England But if it be so that I shall neither be Bailed nor have it shewed what hand the Superior Court has laid upon me to hinder it then truly any man may be so concluded and the Argument may be decided by the will and pleasure of those who have men in their Power but the shadows of things when there is no substance in the Argument will not satisfie reasonable men for an Answer why so publick a Grievance shall not be remedied and I am confident that the Superior Court it self will never suffer its Name to be made use of nor themselves to be made Properties to support such a Grievance as may concern not only themselves but the whole Nation both in this Age and to all our Posterities and by which not only Magna Charta and the Petition of Right would be evaded but the late Act of Habeas Corpus may also be eluded by this device and the Parliament when it shall meet again will find that instead of securing their Liberties they have only been hedging in the Cuckow for that there is now a new way found out by which all Acts for our Liberties may be made of no effect And this cannot be contradicted unless as some would fancy the King could not Impeach as well as the Commons but there are so many Evidences to the contrary of that as there is no room left for the Dispute And amongst the Presidents of that kind there is one because it hath a double Consequence that I do desire to put your Lordship in mind of It is in the 5o. H. 4th in the Records of the Tower There you will find that the Commons came to Petition the King that his Majesty would be pleased not to Impeach the Arch-Bishop of Canterbury the Earl of Northumberland and some others that were at that time accused for being in the Confederacy of Sir Henry Piercy and the King grants their Request and does agree he would not Impeach them I have quoted this the rather because of the double President that is in this Case for again the same day the Commons came after his Majesty had granted their former request and did further Petition his Majesty that he would be pleased to affirm those Lords whom he had promised he would not Impeach to be his true Liege-men and the King did grant that also by which it was then taken for granted that he had set them Recti in Curia even though they were in that Conspiracy with Sir Henry Piercy and my Lord I give you this Instance that you may observe two things by it First That the Commons did Petition the King not to Impeach and when he had granted that it appears also that by the King 's declaring them to be his true Leige-men it was by the Commons conceived that the King did set them Recti in Curia by which it does appear what great regard the House of Commons had to the King 's bare Affirmation of men being his true Liege-men and I hope that neither this King's Power nor Credit shall be less with his own Court than that King 's was with his House of Commons and I am sure no King's Affirmation can be greater nor more publick both to his Parliament and Kingdom of any mans being a true Liege-man to use that old word than the King 's hath been concerning me My Lord there are some men very unable to distinguish though they would between sound and good sence and there are a great many that are as willing to let men remain under their mistakes but since it weighs a great deal with some who do not very rightly distinguish it will be of absolute necessity for me to explain-what it is that is meant by a Case depending in Parliament when there is no Parliament This will be best shewn by an Instance in a Writ of Error depending in Parliament in which Case when the Parliament is Sitting and so the Writ is really and truly depending in the Court that is in Being there can during such Sitting be no Execution sued upon the Judgment But my Lord no sooner is the Parliament dissolved but experience shews that Execution may be sued and Goods levyed and the properties of mens Estates changed and therefore it is by this sufficiently plain that depending is not then meant in the same sence or in the same manner as it was meant when the Parliament was actually Sitting for then there could have been no Execution sued Now my Lord When a Parliament shall meet again what does it meet with It meets it is true with the same Cause again as to the Merits but it meets it quite altered as to other Circumstances viz. as to the Execution that hath been granted by an inferior Court in the interval of Parliament And as to the change of property for a man's Estate and perhaps of great value may happen to be in another mans hands at the same time by the Execution so that when a Parliament doth meet again it doth meet it is true with the same Cause as to the Merits but indeed as to nothing else And therefore by this it is clear that a Parliament does only expect when it meets again to meet with the Cause in the same state as to the Merits of the Cause and doth not at all meddle or concern it self to find fault with those suppletory Acts that have been done by an inferior Court in the interval which was only to prevent failure of Justice but it commends them for not having delayed Justice and that men should not be kept too long out of their Rights even though there may have been prodigious Wrong done to the
THE ARGUMENTS OF THE RIGHT HONOURABLE THE EARL of DANBY The Second Time At the COURT of KING'S-BENCH AT WESTMINSTER Upon his Lordship's Motion for BAIL The 29th day of June Term. Trin. 1682. As they were then Exactly taken LONDON Printed for Richard Tonson within Grayes-Inn Gate next Grayes-Inn Lane 1682. THE Earl of Danby's ARGUMENTS At the Court of KING'S-BENCH Upon his Lordships Motion for BAIL The 29th Day of June Term. Trin. 1682 c. The Right Honourable the Earl of Danby appearing in the Court of Kings-Bench the 29th Day of June upon his Writ of Habeas Corpus the Return of the Writ was read by the Clerk of the Crown and then his Lordships Councel Moved the Court That the Return might be Filed and his Lordship might be Enlarged from his Imprisonment upon Bail his Lordship having very good and sufficient Bail ready in Court and thereupon the Earl applying himself to the Lord Chief-Justice spoke to this Effect EArl of Danby My Lord When I last attended your Lordships and this Court the Judges or most of them were of opinion That what I then said to your Lordship might deserve further Consideration and therefore my Lord I doubt not but that your Lordship has been pleased to consider further thereof At that time my Lord none of the Judges but your Lordship I think made any very particular Objections against my being Bailed and if I am able to offer any thing to your Lordship that may give a sufficient Answer to those Objections I do not doubt but that your Lordship is so just that you will not adhere to any Opinion only because you have been once of that Opinion if any thing can be shewed to convince you to change it In confidence therefore that I am before a Court which is not to be Influenced by any Body how great soever nor by any thing but by the Laws of England and by your Oaths to do Justice according to those Laws and being well assured of the Care which your Lordship will always have to maintain the English Liberties with which your Lordship is Intrusted by the King and by the Laws and Invested with Power enough by both to defend them at all times and against all Opinions whatsoever My Lord I say presuming and not doubting of all this I shall take upon me to add something to what I have said already to the Objections which were then made by your Lordship and I hope I shall have liberty to Answer any new Objections that may be now made My Lord I take it for granted in the first place That the Order of the House of Lords is no Objection against my Bail because your Lordship was pleased to tell me so the last time I was here and then I do reckon that those Objections which have been made against my being Bailed may be summed up under these Three Heads The First My Lord as well as my memory will serve me was That as it was Incongruous for a Court which was Inferiour to this to Bail any Man that was Committed by this Court or to call in question the Process of this Court so it would likewise be for this Court to do in my Case for that if a Man were Committed by this Court no Inferior Court could Bail that Man in Case His Majesty should think fit to Adjourn this Court from time to time until this Court should sit again The Second Objection was That I am not Indefinitely Imprisoned for that when His Majesty shall please to call a Parliament I would have Remedy and therefore I must wait till His Majesty should please to call a Parliament The Third was That this Cause of mine was depending in a Superior Court which was too big for this Court and that the Supreme Court having laid its hands upon me therefore this Court could not Intermedle in that matter my Lord these to the best of my Remembrance are the Substance of the Objections then made The first of these I have been told without doors is taken to be one of the weightiest Objections against me and truly I should be very glad it should prove so because I think it may be so easily Answered For in the first place As to the calling in question the Process I conceive that Bail is no calling in question any Process and this Court did surely think so when in the Case of the Earl of Shaftsbury they did declare That had he not come to them in the time of an Adjournment of Parliament they would have Bailed him and my Lord as nothing is more evident then that this Court and other Courts do meddle with the Proceedings of that Superior Court so I do not doubt but to make appear that they do meddle in a much greater degree then what I desire of Bail and that the Consequences of what they do every Day practice may be far more dangerous to the Subject then the Bailing of me can be For that part of the Objection that compares a Commitment of this Court to a Commitment of the House of Lords and doth from thence conclude that because an Inferiour Court to this cannot Bail a Man who is Committed by this Court therefore this Court cannot Bail a Man who is Committed by a Superior Court This seems so very unequal a Comparison and the inequality of it so obvious that truly I thought it had not needed any Answer for I would desire no other Answer from your Lordship if you can give it me then what an Inferior Court may give to any Person that shall come before them with the like Request For they may give him good and sufficient Reasons why they do not Bail him they may not only tell the Party that he is Committed by the Superior Court of the the Kings-Bench and that he must go thither for his Relief but they can give him good Reasons why he must do so for they can tell him that the Court of Kings-Bench will sit next Term they can tell him when that Term will begin and they can tell him how long that Term will last and they can tell him that the Court of Kings-Bench cannot be Dissolved as the Parliament may be And my Lord this takes away all that Prisoners pretences to say that he is an Indefinite Prisoner and if your Lordship can give me any such Answers as these I shall be as well satisfied as that Man ought to be but if no such certain Answers as these can be given me then I must beg Pardon to tell your Lordships that it cannot be denied but that my Imprisonment is Indefinite and if it be so I do as an English Man affirm that no Law in England can support it For the saying that if the King should Adjourn this Court from time to time the Party could not be Bailed till such time as this Court should sit again My Lord If this should be admitted as a reasonable supposition which under favour I do not
think your Lordship your self does take it to be yet it is but an Adjournment that is objected and if the Parliament were but under an Adjournment I would not have troubled your Lordship But this is not the Case for though sometimes the King may Adjourn this or any other Court of Westminster by reason of some extraordinary occasion as in Case of a Pestilence or something of that nature and I know there have been Presidents of it yet my Lord these are upon Extreordinary occasions and it is not to be thought nay I am very certain that his Majesty will never do any thing that shall deprive his Subjects of any of those Rights the Law allows them So that in one Case the Law obliges that the Termes should be kept four times a Year and that then the Court shall sit if there be not extraordinary occasions to hinder it But in the other Case of a Parliament the King lies under no oblihation nor restraint when he shall call or whether he will call it and therefore the Inequality of the comparison is sufficiently apparent And besides this It is as unknown how long a Parliament shall sit as when it is to sit Insomuch that I take all this But to have offered additional Arguments on my sâ—de shews how little the Arguments are that can be brought against me I think it makes out to me and to all English men that no man ought to lye under such an Indefinite restraint as I do and truly my Lord I thought I shewed more respect to the Court in giving a more General answer to this Objection as I did before then I can do now by being so particular For the second Objection viz. That I am not Indefinitely imprisoned for that when the King will please to call a Parliament I would have a remedy there and therefore I must wait till the King will call a Parliament Truly my Lord perhaps your Lordship may know the mind of the King or his Ministers better than I do But if you do not I am sure no man but the King can tell whether I shall have remedy then or no for by the experience of three Parliaments that have been called since I was a Prisoner it hath appeared that I have had no Remedy Therefore I should be very glad to see this matter any better proved then it hath been that I am not Indefinitely Imprisoned but if this cannot be proved neither but that I must wait till the King shall please to call a Parliament and when he shall call a Parliament I shall be no more certain of my Remedy than hitherto I have been truly then I shall need no other Council but your Lordship to prove I am under an Indefinite Imprisonment and that any man in England may be so when the King pleases and how any Doctrine can be more Arbitrary then that or less to be desended by Law when ever that matter shall be brought into question Others then either your Lordship or I must be Judges and those who will be parties so much concerned in this question for their own sakes as well as the publick that I believe there is small doubt to be made how they will then decide this question My Lord If it should then be found that this would hold water and should be maintained for good Doctrine truly I think there would need no other Arbitrary power to be set up to make men quit this Country For as to any mans Liberty it might be equal to him whether he lived under the French Government or under the Grand Signiors Government as under a Government so Arbitrary as this Doctrine alone would make ours And therefore I make no doubt my Lord but that you will be very careful how you give it us for Law As I should be very sorry that there should be any such Arbitrary Doctrine taught to set the Kings Prerogative higher or greater than it ought to be by Law or then this King desires so I should be as sorry that the King should not have that right which duly belongs to him which is a Right and Power at all times to administer Justice to his Subjects and which I never heard denied to the Kings of England nor I hope I never shall And my Lord I must say that the preservation of that Right to the King would take away all pretences for any of these dangerous and new Doctrines for if the King may administer Justice at all times to his Subjects as it hath been the care of Parliaments and by Magna Charta it self that he should there is no reason left for any of those things to be started or put upon us 'T is true indeed that the King cannot make Laws without a Parliment but I did never hear in my whole Life but that he could administer Justice without his Parliament and if he could not his Subjects would be in a miserable Condition for surely it would be a very hard Case if his Subjects could have no hopes of being righted by their Soveraigns Authority either by himself or in his Courts in all Cases and at all times The House of Peers in Parliament 't is true is his greatest Court but they Sit only by Vertue of the King 's Writ and if the King should dye which I hope I shall never live to see they would not then be a Court of Justice nor any Court at all and therefore my Lord in this Question the Royal Authority and the Subjects Liberties are so involved that what Judgment soever shall be given must pass upon the one as well as upon the other and cannot possibly be divided The third Objection that was made is That this Cause of mine is depending in Parliament which is a Superior Court to this and that the Supream Court having laid its hands upon me therefore this Court cannot intermeddle My Lord There is no man living that hath a greater Reverence for that Supreme Court than I have or that will go further than I will to defend it in all the Rights and Priviledges that belong to it by Law Nay my Lord I have so much a greater Esteem for that Court because I am sure it will neither suffer me nor any man living to go unpunish'd that shall transgress the Law or that shall go about any way to make them Transgressors of the Law or to make them such as would be restrainers of the English Liberties beyond what the Law permits They have shewed the contrary when it was offered to them by a Bill from the House of Commons that they would have no such absolute Authority put into their hands over the Liberties of the Subject but did then refuse it so that to say that Supreme Court hath laid its hands upon any mans Liberty in England further than the Law permits would be to put an unjust Odium upon the House of Lords to the Nation instead of doing them right and therefore I must needs
Parties if the Judgment have been erroneous for that the Superior Court will at last see to the Error if any have been committed by the Judgment of the inferior Court and will enter upon all as entire again as to its Merits as if nothing had been done by the inferior Court so that in reality that which can only reconcile the sence of being depending in Parliament when the Parliament is dissolved is this last Order of the House of Lords which declares Impeachments c. to be continued notwithstanding Dissolution For by virtue of this last Order the Lords do proceed upon the Cause without beginning De novo or having any new Writ or new Impeachment brought up to them But this is new Doctrine and never practised till of late however since they have done so in this sence and in this only a Cause may be said to be depending and so it was adjudged in that single instance of the Tryal and Condemnation of my Lord Stafford but there they proceeded to the Merits of the Cause and they tryed condemned my Lord Stafford and there is no manner of doubt but by virtue of their late Order they may proceed upon me when they shall meet as they shall think fit notwithstanding my having been bailed for I desire not to have the Merits of my Cause removed from before the Lords if I might but that they may do with me as they please even to Condemnation if they shall have Cause which I hope in God they never shall Therefore I say my Lord in this sence only which I have explained a Cause may be said to be depending though a Parliament is not in being but I will challenge the ablest Lawyer with all the Sophistry he can use together with his Law to shew me how he can possibly distinguish the Case of Writs of Error from the Case of Impeachment or wherein they differ as to their depending in the Intervals of Parliament and I likewise challenge him to make appear how Bail is any other than such a suppletory Act to relieve a man from being kept too long from his Liberty as the granting of Execution in the Interval is to relieve a man from being too long kept out of his Money or Estate for that the Merits of the Cause both in the one Case and the other remains entire for the Parliament to recommit upon if they see cause as well as to reverse the Judgment and all the Proceedings upon the Writ of Error Where is then the difference my Lord if there be any difference I think it lies only in this that in one Case there may be an erroneous Judgment and a man may be almost undone and ruined by being wrongfully dispossess'd of his Estate be it never so great but in this Case the suppletory Act which is done to admit to bail can only be to ease a man from his too long or perhaps perpetual imprisonment and can hurt no body nor take no mans liberty from him to grant him his but yet this must be thought an hard Case and the other a very easie one and fit to be practised every day My Lord if the Law has taken care and made such provision that a man shall not be kept too long out of 10 l. in money or out of 40. l. a year in Land then it would be strange that the Law should not have made provision that a man should not be kept too long out of his Liberty and when there is no prospect of his having it Besides in a Writ of Errour the Judgment given is controverted and the power of awarding Execution is suspended upon that very accompt because the Judgment of the Court is in question and the Justice of it is brought in dispute whether they have judged right or wrong Now My Lord if the dissolution of a Parliament can restore the Judges power in the interval of Parliament so as to award an Execution upon a Man's Estate where the property shall be changed and altered and notwithstanding their Justice was brought in question and that they may have done great wrong to the Party by their judgment and yet we are to believe that the same Dissolution cannot restore the power of the Judges so as to give a Man a little Ease from a Confinement within four Walls where the Justice of no Court is questioned nor arraigned nor no wrong can have been done to any body But on the contrary does right to the King who by his consent shews his Will to have a Man bailed and great right to the Subject who ought to be delivered from the danger of an indefinite Imprisonment which is so contrary to Law Then indeed there must be some Infallibility supposed in that Chair which shall maintain such Doctrine and must be submitted to with the same Implicite Faith which they do who can believe Infallibility But for my part who can believe Insallibily in no kind upon Earth I confess I must have my Reason better satisfied before I can any more believe this Exposition of the Law than I can believe those infallible Mens Expositions of the Gospel My Lord I hope I have made plain to your Lordship what it is that is meant or can be understood by a Cause depending in Parliament when there is none and how and in what sense onely it can be understood to be so depending and it is as plain that the bailing of me is no intermedling with the merits of the Cause in Parliament but on the contrary an evident affirmation of the jurisdiction of that supreme Court and if I cannot be admitted to bail in some other Court than the House of Lords it is contrary to what my Warrant of Commitment implies by which I am committed onely till I am discharged by due course of Law for which I am properly in this place My Lord it cannot be meant that Bail can be any more than a Suppletory Act propter rei necessitatem and for the ease of the Subject and it is impossible for that old Rule of Salus populi Suprema Lex esto to be more aptly applied in any case in the World than in this that concerns every Man in England in his Liberty For should it be otherwise Pray see what the consequence of this Doctrine would be that because a superiour Court which is not now in being nor hath it in its own power to be so hath committed a Man therefore he cannot be admitted to Bail what should become of Men if after the dissolution of a Parliament there can be no possibility of having justice done them Nay farther if it should be granted that this Court cannot intermeddle because the Superiour Court has committed by that Doctrine it would not matter whether the Commitment were for Treason or for the smallest quarrel or misdemeanor for which a Man might happen to be in Prison at the time of a dissolution of a Parliament nor would it be any matter whether
the Order of the House of Lords were revoked or not For it is an Order of a Superiour Court which will still be a Superiour Court though the Order were burnt and yet that must be enough to keep one in Prison by this Rule for that there would still be no other remedy though the Order were repealed But My Lord the Warrant of Commitment shews the Lords Directions to be contrary to this Opinion for I can shew several Instances of Warrants which run some to be kept till further order of that House others to be kept till they shall be discharged by the House and others to be kept till the pleasure of the House be further signified and others during the pleasure of that House But my Warrant is till I am discharged by due course of Law Now I doubt not but if the Lords had thought those words had not given a latitude for relief elsewhere they would have worded the Warrant otherwise and instead of saying by due course of Law would have said till I were discharged by that House if the Lords had thought there had been no other remedy by Law but by that House But My Lord the Lords will not act any thing above the Law they will keep every thing within the compass of the Law and I am sure that there cannot be a better Example to follow than the Example of those wise and great Men of that great Court and I desire it may be followed and not contradicted For by this Doctrine truly My Lord Liberty it self would not only be utterly lost but to make the Riddle the greater and the manner more ridiculous it would be lost and yet no body invade it For the King he consents to my Bail if he hath any power so he does not intend to deprive me of my Liberty The Lords would for their own sakes and Justice sake if it were in their power to meet and have time to sit so long as to take the Case of a single Person into consideration do me justice either in discharging or trying me So that in my Case here is a Subject of England imprisoned by no body and yet no Power upon Earth can relieve me Shew me an example of this in any Nation under the Sun but this that there wants a power in the Government to relieve a Prisoner at all times if it would and I will be satisfied Nay My Lord the very Spanish Inquisition is more reasonable than this for though the Cause may be unjust that they commit a Man for and their usage of him may be very severe while he is there yet the Inquisitors if they please can deliver him there is no Prisoner in the World but can be delivered by some power or other but me and My Lord this is a Rule that must be for every Man in England as well as me and I am not so inconsiderable but that my fate may be made a President of note The Opinions My Lord that were given by the Judges in the Case of Ship-money appear far more tolerable in my Opinion than this for I know there is no Man but had rather have a Sentence pass't against his Estate which he may recover again than have it passed against his Liberty which he may never have and which is more valuable than any Estate Besides where is the Justice of the Nation and what a shame would it be to our Laws and to our Government that it could be said of this Countrey that a Man might be punished by Imprisonment in England where the Government is not Arbitrary for seven Years or more and at last be found guilty of no Offence and what satisfaction could be in nature given to that Man I say if that Man could have a Crown given him it could not make him satisfaction for the loss of his Liberty all his life which may be the Consequence of this Doctrine and my Lord there are Precedents good store where Men have suffered sufficiently for their Judgments against the Liberty and Property of the Subject but I never found one that suffered in the Defence either of the one or the other I have shewn I think sufficiently what can be meant either in my Case or any other by a Cause depending in Parliament when there is no Parliament as also how much Inferiour Courts do meddle with things of much an higher nature than Bail will be Insomuch that truly I should think it might be sufficient to say no more than I have said But I do not know what may be sufficient in my Case and therefore my Lord you must Pardon me if I do put you in mind of a Case wherein you have gone to the merits of the Cause it self when Depending in Parliament It is Fitz-Harris his Case and I know very well what Answers will be given me as that that was a Case rejected by the Lords and that it was not the same Treason for which he was Impeached and other things that I could mention but I know your Lordship will speak by the Record of the Court of which I have here a Copy and the Record is that which must satisfie the World an hundred years hence by which it will appear to them that he was Impeached and Tryed and Condemned depending that Impeachment for he made that his Plea and Mr. Attorney General demurring to it the Court must take the matter pleaded as confessed and allow'd and this being so I should think there should be no scruple made in the point of Bail or if there should there must certainly be very great hardship in one case or the other and must be very dissicult to be answered But to Conclude besides all this I am the King's Prisoner and I have the King's Pardon and if I cannot get to be Bailed there is not only a defect of Jurisdiction in this Court but a defect of the Regal Authority and Power of the Kings of England to administer Justice to their Subjects which was never heard of I think and I hope I shall never live to hear of it Especially from the King 's Supreme Ordinary Court of Justice And that My Lord that must make this Case the more unhappy at this time is that we live in days wherein his Majesty's Prerogatives are so much brought in question For what Prerogative hath He which is more undoubted than his power of Pardoning and yet you see that brought in question to the utmost and those that are the ablest Men that speak against that power do laugh at the little small Triflers who object that the King may Pardon before Impeachment and after the Sentence be given but not betwixt those times They laugh at this and tell you that he cannot Pardon at all and it is easily perceived that if they could reach their design they would have it understood That Treason may be committed against the People and by that Doctrine another High Court of Justice may be set up and the King
may be tried by his People as well as he can try them My Lord there are a great many of Consequences attending upon that Doctrine which I am sure will ne'er be countenanced by the King's Courts but I shall not wonder that such Men as these be trying their Projects and think themselves in the Right to do so If they find his Majesty cannot doe so much as a lesser Act of Grace for his Prisoner which is but to give him ease from too long or perhaps a perpetual Imprisonment for if he hath not power so much as to Bail his own Prisoner I shall not wonder if others question whether he hath power to Pardon him My Lord I have seen such Keepers of our Liberties from whom I should expect such Doctrines but I thank God that by our Laws the King is the Keeper of our Liberties and therefore I hope I shall not hear any such Doctrine by which he can only be the Keeper of us in Prisons but shall have no more power than another Man to set his Prisoner at liberty although his Will be only to give his Prisoner Ease as the Law intends against Indefinite Imprisonment Lastly My Lord If I should die in Prison with this Pardon by me which I have shew'd Your Lordship or suppose that the House of Commons if it were but with a design to destroy the Pardon would give some other reason than the Pardon as being better satisfied concerning me or any thing else why they would prosecute me no more of which there be divers Precedents What a Wound would thereby be given to the King's Prerogative and pray how is it possible almost to give it a greater blow than this would be What a Precedent would it be to Posterity to say that a Man had lain Three four or five years or more in Prison notwithstanding a Pardon that signified nothing all that time for that the King would have Eased him if he could and hath shewed his Court that he would do so but was not able so much as to have him Bailed would not this put that Prerogative in great hazard I confess I do wonder that some others besides Your Lordship have not taken more care of the Prerogative of the King for their own Sakes as well as the King 's For it would be very convenient it should be usefull if ever it should become necessary And it is not improbable but if the King should hereafter find such a Prerogative diminish'd he would not only reflect upon his Loss but upon those who might have advised better or might have better defended this Prerogative of the King And for the Subjects Liberties there will never be Eyes wanting to inquire after any invasion which shall be made of that kind Upon the whole I have troubled Your Lordship too long but it hath been upon a Subject of the greatest Concern to English-men I have such Bail to offer to Your Lordship as I am sure cannot be denyed and I am in my own Conscience sufficiently satisfied that I am detained a Prisoner from Bail neither by the King by the Lords nor by the Laws and therefore my Lord I do humbly pray your Lordship you would please to accept my Bail and as I here offer your Lordship my Pardon again so I again pray the benefit of it and I desire your Lordship it may be read in Court THE Lord Chief Justice then spoke and so did all the rest of the Judges upon the Earls desiring that they would severally deliver their Opinions And the Lord Chief Justice and Mr. Justice Dolbin did deliver their opinions that the Earl could not be relieved by that Court Mr. Justice Jones concluded his Discourse with saying that he could not give his Judgment that the Earl should be Bailed AT THAT TIME Mr. Justice Raymond did say he could not see but that there would be a failure of Justice if so be his Lordship should not have Liberty upon Bail but that he had not had time to view Precedents and therefore it would be very unfit for him at present to be positive in what he did say And then the Lord Chief Justice did tell the Earl he must be contented to be Remanded I Have not dared to set down the Particulars of what was spoken by the Judges the Writer not having well heard what was said by some of them but some are said to have taken Exact Notes which may perhaps be Published hereafter by themselves And it is likewise reported that the Earl not having been permitted to reply in Court to the Reasons given by the Judges against his Lordship's being Bailed does likewise intend to put forth his Answer to the Reasons which were then Objected against him FINIS