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
in the Exchequer and Recognizance entred into by the said Fountaine to abide the Order of the House of Lords and after the Parliament was Dissolved the Council of the said Fountaine did Insist on the said Order before the Barons that the House being possest of Mr. Fountaines Cause and Security having been given by him to abide the Order of the House that no Proceedings ought to be had in the Exchequer upon the said Decree until the matter on the Appeal was determined before the Lords Notwithstanding which and that Mr. Fountaine produced the Lords Order in Court and produced the security allow'd yet the now Barrons Declared and Ordered that the Decree by them made should be proceeded on against the said Fountaine in the Court of Exchequer And a proceeding hath been had accordingly By all which he Observed That the Inferior Courts did proceed upon matters forbid as much by the House of Lords in the matters of Appeals and Writs of Error as it was upon Impeachments and yet that the reason was plain why they did so for that the Parliament might proceed again upon the same Appeals and Writs of Errors notwithstanding those proceedings in the Inferior Courts in the interval of Parliaments for that none of those Acts of the Inferior Courts does so hinder the proceedings of the Superior but that the Plaintiff in Parliament may revive the same matter there again by Scire Facias or by Re-summons c. But he said It was never heard of that the Lords themselves did proceed again Ex Officio without the Petition of the Party to revive the Cause And so he said in the Case of Impeachments that the Lords would no more proceed Ex Officio upon that neither unless they were called upon by the Prosecutors and then their Lordships proceedings upon the Impeachment would be no more hindered by the Bailing of him in the Inferior Court then they were in the other Cases by the Executions and Sequestrations which are Granted in the intervals of Parliament which were for the the prevention both of DELAY and of FAILVRE of JVSTICE Besides he said If this should not be done how could it be known whether the Prosecutors of an Impeachment from the House of Commons who are never the same Men in a new Parliament will proceed any more upon a former Impeachment For he said it had many times fallen out otherwise and he Cited a late Case of the Lord Mordant who was Impeach'd upon Articles in one Session and having taken out a Pardon during the Prorogation was never more called upon nor never question'd upon the former Impeachment although the very same Parliament sat again which had Impeach'd him and therefore he said That the Case might more probably happen to fall out so when a new Parliament should meet again which would consist of new Men. He said It was likewise to be Observed that although the Transcript of the Record in a Writ of Error might have Days of continuance yet no Supersedeas is grantable and he said That if the Lords Order be no ground for a Supersedeas on a Writ of Error why the lying of an Impeachment should be a ground for Confining a Man within Fower Walls all his Life he was sure must be both less reasonable and less just As Liberty was more valluable then Property and without which Property could be of no comfort In the next place he Observed That if the Order should be continued litterally to mean that the Impeachments as well as the Appeals and Writs of Error and the Incidents relating to all of them should remain in the same State they were at the Dissolution of THAT PARLIAMENT mentioned in the said Order his case thereupon he said would be quite different from any others for that he was not under any Commitment at the Dissolution of THAT PARLIAMENT nor at the time when THAT ORDER was made but was then at liberty to be a sitting Member of that House and by a Vote of the House had leave to continue so for that as he had already Observed the Date of the Order was the 19th of March 1678. and the Warrant of his Commitment did appear by the return before the Court to be the 16th of April following Insomuch that he desired the Court to take notice that the strict Letter of the words Statu Quo in the Order compared with the time when the said Order was made would be an Argument to set him in a State of Liberty as he then was He then told the Court That by what he had said he hoped he had made appear that the Order did not afford the least shadow for the hindering of his being Bailed but that on the contrary the Reasons were much stronger for the doing of that as it related not only to him but to the Liberty of the Subject in General then for the proceedings which the Inferior Courts do daily practice upon Appeals and Writs of Error which are but for Property and are comprised in the same Order and therefore he said That he hoped he should at least find the same favor in a Case of Liberty which is allow'd every day in Cases of lesser Moment He then said that although it did not concern his particular Case Yet for the sake of English Liberty it self he could not but say something further upon this point for he could not but be of opinion That if the Order had directly forbid Bail which it was far from doing and besides the Lords own practice had shew'd their meaning to the contrary by the Bailing of a Commonnor whose Crimes were declared to be greater then his and in which Case they made no Non Obstante to their Order but take that to be still in the same force towards him as towards any others who are in Custody yet he said In that Case if such an Order should be found to be against Magna Charta and the Fundamental Right of the Liberty of the Subject as any thing must be which does Subject any Man to an INDEFINITE IMPRISONMENT he conceaved that of Right that Court ought to free any Man from such a Slavery for he said he could give it no better a name and he then Cited an Argument of the Earl of Shaftsburyes upon that point which that Lord argued in that Court upon an Habeas Corpus when the Court agree'd they would have Bailed him had it not been in a time of an Adjournment only of the Parliament his words he said were That this Court will and ought to Judg AN ACT OF PARLIAMENT VOIDE if it be against MAGNA CHARTA and more might it Judg of AN ORDER OF THE HOVSE OF LORDS that is put in Execution to deprive any Subject of his LIBERTY and as he said this could not be denyed to be Law so he was confident the Earl of Shaftbury was still of the same mind and so must every Lord in England be or when they consider their own Cases they
Imprisoned for that whenever his Majesty is pleased to call a Parliament he will have remedy and that he must be content to await the King's pleasure when he will call a Parliament He took those to be fuller Arguments than any himself had made to prove that his Imprisonment was Indefinite and at the Kings pleasure so that he was now more fully confirm'd than ever to be of that Opinion and wisht that every man that heard that Doctrine given for Law might fully consider the consequences of it He said further that his Lordship had mistaken him in thinking that he had said he was under a Temporary Indefinite Imprisonment for that he had said he was under an absolute indefinite Imprisonment and that his Lordship had rather proved him to be so than shewed any thing to the contrary nor did he know what Temporary Indefinite did mean The Lord Chief Justice then said That he was not a Judge at that time when the Judges Opinions were asked but desired his Br. Jones to relate how it was Mr. Justice Jones then said That he remembred the Case had been put to the Judges Whether the Lords in the Tower might be Bayled and that it was then the Opinion of the Judges that they might not but he said he did think the Earl of Danby was not particularly concerned in the question at that time but that it related to the Popish Lords only and that there was much difference betwixt his Lordships Case and theirs Besides he did think that was at a time when there was a day appointed for the meeting of a Parliament The Earl of Danby then said that the question which was put at that time to the Judges about the Popish Lords did not concern his case at all for that it differed from theirs in very many particulars which he had already mentioned viz. Of no Oath against him No special Treason alledged c. which he was loth to trouble them with Repeating again but he supposed that the then Opinion of the Judges ought not to be made any Argument against him He said also that the Lord Chief Justice had argued very strongly for him For that it was true That the King might call a Parliament when he pleased but if therefore a Man must stay in Prison till the King did please to do so he may by that very Argument lye there all his life-time if the King pleases which confirm's what he had been a great part of this time labouring to prove and he said he must confess he did expect to have heard stronger and more powerful Arguments to have convinc'd him that he was in the wrong in what he had said but that now he was more incourag'd than before not to give over a Cause which did so much concern every Man in England The Lord Chief Justice then said that his Lorship was mistaken in believing that That Court did keep him in Prison for that he was not keptin Prison by them but by a superiour Court which was too big for them to meddle with or to examine what they did To this his Lordship answered That he had wrong done him which must be done by some body and that it was a Maxim of the Law That the King could do no man wrong being advised by his Courts besides that his Majesty had twice shew'd his Consent in that Court to have him Bayl'd Neither could he say that the Lords did him wrong because there was nothing in their Order to hinder his being Bayled besides their own practice to the contrary and it seemed now to be said that it was by the Law and not by the Order that he was kept a Prisoner He said he would not say that That Court did keep him a Prisoner but by some body he was sure he was kept Prisoner but perhaps it might be by the Stars since he could not find who it was upon Earth that did it He concluded that if he were legally Imprison'd yet by Magna Charta and the Petition of Right c. It was impossible for an English Man to be without some certain prospect of relief in a reasonable time they being to have Justice done them by the Law at all times and without delay and that he was now in the Kings proper Court for Justice wherefore as his Lordship had given his own opinion so he did desire that every Judge would be pleased to deliver theirs severally Then Mr. Justice Jones said that he was not ready to give any present Opinion there having been so much and some things so materially said by his Lordship but that for his better satisfaction he did desire to ask his Lordship a question in a point which did much stick with him and would go a great way in guiding his Judgment and he was confident that his Lordship was as able to give him an answer to it as any Man which was this His Lordship he said had been charg'd with Treason by an Impeachment and had pleaded a Pardon to the Impeachment before the Lords He said he took that Plea to be a Tacite Confession of guilt in Law though the Party were never so innocent and then it had been a Tacite pleading of Guilty insomuch that he did believe there could be no admittance of any Second Plea and if so he did confess he did not see how that Court could then have any thing to do with his Lordship in that Case but it was what he had not yet well considered though at present he took the Law to be so and he did desire to hear what his Lordship did say to that His Lordship answered that he gave him great thanks for letting him clear any Objections and giving him liberty to answer them as well as he could That this indeed was a question of Law which he was but little vers't in but that he was at present able to say that he had read the Opinions of some great Men of the Law to be otherwise and instanced what the Lord Goke had said upon the Case of Grauesend Bishop of London 7. E. 3. who did get a Writ of Discharge to the Kings Bench and did not take a Pardon upon which he observed the said Lord Coke to have said That it may be he thought that the taking of a Pardon would have implied a confession of the fault and therefore went a new way but that was a mistake for that no Man that is wise and well advised will refuse God and the Kings Pardon how often so ever he may have it for there is no Man but offendeth God and the King almost every Day and the Pardon is the safest and surest way And though at present he said he was not provided of Precedents in the Case yet he remembred there was a Case of a Coyner tried at Durham upon a Pardon where the Pardon proved defective and yet he was allow'd to plead over And he told him that the same question had been moved in
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
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
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
And he said That the House of Commons desiring that such a Power might have been Enacted into a Law though themselves would have been the first who would have repented such a Law did sufficiently denote That the Commons did not think the Order would be binding in Law after their Dissolution for otherwise what need was there of a Law if the Order was in force after Dissolution without a Law Upon the whole he said He thought the Distemper of that time had given more weight to the Order then any thing else and some of their Lordships on that Bench did know both in what an heat it had been made and how it had been since blown upon by the Lords themselves who he was confident would no more endure to have it Construed in that Sence which now seems to be put upon it of Subjecting Men to be under INDEFINITE IMPRISONMENT then they will endure themselves to be every Day put in the Stocks As he had said thus much to the Order it self so he said He hoped to make appear That the Courts Bailing of him would not at all Intrench upon the Order nor meddle with the Jurisdiction of the Lords nor their Proceedings in any kind For that he took it for granted That what is done by that Court and the Courts of Chancery and Exchequer on Appeals and Writs of Error was understood not to meddle at all with the Jurisdiction nor Proceedings of the Lords in those Cases and that this was just the same all being alike Subject to the final Determination of the Lords whenever they pleased to call the Appeal Writ of Error or Impeachment before them and without any prejudice to their Lordships Proceedings by any of those Acts done by that or the other Courts in the Interval of Parliaments Besides he said It had been usual to Bail in that Court to the Justice Seat in Eyre and yet that that Court could not proceed further He Instanced also That Courts allowing of the Pardons of Peers when pleaded there and yet that they had no power to proceed to the Tryal of a Peer And so he said There were divers other Instances of that Courts proceeding to such and such degrees of Exercising their power to avoid delays c. where the Court had no Jurisdiction to determine the matter Precedents he said were not to be expected which were exactly fitted to his Case because he durst be bold to say there never was such a Case before when well considered in all its Circumstances nor he hoped never would be again But he said That therefore both the Kings Power and the Peoples Liberties would be the more concern'd in what Resolution should be given by the Court in this Case of his He said There were Precedents of Discharging of Men Impeach'd in Parliament upon the Kings Writ to that Court Commanding the Proceedings to cease and they have been Discharg'd accordingly by that Court without any other Reason given in the Writ but because the King held the Parties to be Innocent and free from the Crimes Charg'd against them As in the Cases of Melton Arch-Bishop of York and Gravesend Bishop of London 7 E. 3. He mentioned also Hugh Spencer and Sir Thomas Barkley's being Mainprized to Parliament and yet that the latter was upon suspition for the Murder of a King viz. Edward the Second He said Inferior Courts had Bailed to Parliament about the Popes Bull c. Reg. Writs 274. He said A single Judg viz. Sir Robert Atkins had lately Bayled one for Treason and another for Murder and that he did himself hear his Justification of both allow'd as to the Legal part before the King and Council He said That Kings had formerly abolish't Accusations of Treason and Instanced a Case of Talbot against Ormond in the time of H. 6. And to shew how powerful the bare intention of Kings to Pardon had been heretofore he Instanced the Case of a man Indicted of Felony who without any Council shew'd forth a Charter of Pardon to the Court which was discordant to the Indictment and also to his name and yet because the Court perceived that it was the King's Intention he should be pardoned he was Remanded to get a better Pardon 26 Ass p. 46. And he did thereupon say That he hoped the Kings Intention of Pardon as to him had been sufficiently declared to the whole Kingdom And in short he said that if the matter was proper for the Jurisdiction of that Court before it was in Parliament it 's having been there did not take away the Jurisdiction from a Competent Court when the Extraordinary Jurisdiction fails which was not to be supposed could lay all other Jurisdictions asleep when itself was not in being and especially when that Competent Court should do nothing in Contradiction to the Proceedings of the Extraordinary Court as he hoped he had made appear that that Court would not do by the Bayling of him Whereas on the contrary he said it was most evident that Justice did fail in the highest concern which is that of Mens Liberties unless he could be inform'd when and where he might certainly be either Tryed or discharged for that as he had said before it was agreed both by the Council for the King and the Council for the Prisoners in the Arguments on the Grand Habeas Corpus that INDEFINITE IMPRISONMENT was held to be PERPETVAL IMPRISONMENT which the Law did admit in no Case where the Imprisonment was only AD CVSTODIAM And although his had been intended but AD CUSTODIAM yet it could not be denyed but it had already been ad Gravem paenam and without any perticular Cause yet shew'd for which he ought not to be Bayled by Law He then said that Littleton had declared in his Arguments 5 Car. That if Treason in General should be held to be a sufficient Returne yet that the Kings-Bench might Bayle And the said Littleton and the Kings Attorny in their Arguments one for the King and the other for Mr. Selden did agree that where the Party could not avoid the Judgment of the Law nor that there was no Danger by his being at liberty He ought to be Bayled after long Imprisonment and at that time six Months was taken to be long Imprisonment He said he had read a passage in the Lord Cokes Institutes where he spoke of such Imprisonments as he compared to the Imprisonment of St. Paul by the Centurion who first put him in Chains and then enquired who he was and what he had done He said he would not compare his case to that but that there was so much of resemblance in it that he had been in Chains or what was there meant by Chains which was a Prison for above three years on a pretence of Treason without being told to that day what kind of Treason he had committed which had been done in no bodies Case but his and by so much the greater was his hardship He had also both been
Accused and Committed without any Oath made against him When a Day had been appointed for his hearing his Council had been forbid to Plead matter of Law for him It had been acknowledged that there was no Treason conteined in any of the Articles against him if they were all true And if they had been true and had amounted to Treason he had there shewed the Kings Pardon which did release both the Crimes and the Imprisonment That besides that Pardon he had had his Majesties Declaration in full Parliament both of his Innocence and that he would Grant him his Pardon ten times over if this were defective That he had now had his Majesties Consent to his Bayle a second time Declared to that Court by the Attorney General by the Kings Direction That in all these foregoing Particulars his Case was singular and different from all others who are or have been made Prisoners since the beginning of the late Plot or as he believed at any other time Besides these things which are peculiar to his own Case he said that these was also what was Common to other Cases as well as his The length of his Imprisonment which had been above 40 Months The being Confin'd so long under pretence as he conceived of an Order of the House of Lords which neither Directs nor Implies any thing to forbid Bayl. But in that also he had what was particular to himself which he had already said and desired leave to repeat because it would deserve their Consideration viz. That he was at liberty and had leave to be a sitting Member in the House of Lords at the time when that Order did declare that the Impeachments Appeals c. and the Incidents belonging to them should stand in STATV QVO so that as it already observed the STATVS QVO as to him he again said was to put him into a State of Liberty Lastly he said that he had no prospect now when any Parliament would sit and by the examples of past Parliaments he might reasonably fear whether when they did meet they might sit so long as to give him Releif for that his Petition had been Read the first Day that the last Parliament entered upon any publick business or whether greater business of the Kingdome might not as it had done already so take up their time as not to give them leisure to consider the Case of a single Person And since this had already fallen out to be his misfortune in Three Parliaments successively he took it to be but too plain a Demonstration of his lying under an Indefinite Imprisonment unless he should find relief in that Court for that there was no other to Appeal unto He said That in those Great and Eminent Cases which fell out 3 5 Car. about the Bayling of Persons Committed to Indefinite Imprisonment the Judges were then very positive against their Bayl and yet changed those Opinions afterwards and so he hoped that Court might do upon a due consideration of his Case and Circumstances or else he hoped that his Lordship would convince him that his Imprisonment was not Indefinite by letting him know at what prefixed time and where he might resort for remedy which the Law does without question allow to all men and at all times He said he was a very reasonable man and when he was convinced by reason upon which he was sure all Laws were founded he could be content to suffer still though his Imprisonment had been so long already for that however he may have been Misrepresented for an Arbitrary Man he would rather perish in his Prison than have any thing done for him which the Law would not warrant But on the other side he should be sorry that his Case should be made a Precedent against Law and against English Liberty which he was sure it would be if he should be continued to ly under an Indefinite Imprisonment without being bailed and he said he was not ashamed to say in the behalf of all English mens Liberties as well as of his own Case That it was a Case which did concern every man to take care of in the Consequences of it and which did cry loudly for Relief He then told the Court That he had troubled them long but that he hoped it would be excused in a Case of that moment And in the first place he said he hoped it was plain that That Court had it in their power to grant him Relief if they pleased That it was as plain that there was nothing in the Lords Order against it and that the practice of the Lords had been otherways even in the behalf of Commoners That it was apparent that both that Court and the Courts of Chancery and Exchequer do relieve upon Appeals and Writs of Error which are in the same Order with the Impeachments and yet do in no sort meddle with the Judicature or Proceedings of the House of Lords That it was manifest that let the Order be construed as any man pleases yet that Bailing could be no sort of Judging of any Proceedings in the Superiour Court but would leave the Judgment intirely to the Parliament and would continue him a Prisoner in Law bound to appear before that Extraordinary Court whenever his Majesty should be pleased to call it and he said it was more evident that otherwise he was an Indefinite Prisoner and at the King's Will only for his Liberty the Consequences of which every man ought to lay to his heart with a dread of it whenever they should live under a Prince that might not be so merciful as our present King and he hoped the Court would duly consider it Besides all this he said he durst confidently affirm That there was not a Precedent since the Conquest of any man's being refused Bayl under such Circumstances as his were Whereas he said the detaining of men under long Imprisonment ought either to have express Law for it or a good number of Precedents and in good times to justifie it and not any single Instance or two if they could be produced which he thought they could not And he hoped that Precedent which he had already mentioned on his Majesties behalf would be very well considered which was How the King's Court should keep the King's Prisoner and at the King's Sute in the King's Prison with the King's Pardon and against the King's Will twice declared in that Court by his Attorney General He said he should conclude with letting his Lordship know that as the King himself had sufficiently declared that there was no danger in the letting him have his liberty so he had such Bayl to offer to his Lordship as would sufficiently satisfie the World that he should be forthcoming to answer when and where that Court should appoint and then he hoped the two chief grounds for detention in a Prison viz. The danger of a Mans having his liberty and the danger of his not appearing to abide his Tryal would be fully