he could not have Serjeant Maynard to argue the Invalidity of an Order of the House of Lords after the Dissolution of Parliament as he had done in those times in Sir John Stowels Case That he would ask any Commoner in England whether they would be willing the Lords should have such a power over all their liberties as is now pretended they have he said he has been offered by some of those very Lords that were for the said order to be his Bail He said that this Court had power to Bail a man and to Act in many things where they had not power to determine and instanced in the Bailing to the Justice in Eyres Seat and in the case of a Peer bringing his Pardon before them where they do allow that Pardon yet had no power to try a Peer He said that exact presidents were not to be expected in his case for he believed there never was such a case of any English-man before this case He said he himself was at Council-Table when the late Judge Atkins was complained of to the King and Council for Bailing a man in the case of Murder that Judge came and gave reasons why he did it and those of the long Robe in Council allowed those reasons as to the legal part And at the same time the said Judge told the King that he had done greater things than that for which he was complained of for in his very last Circuit he had Bailed a man for High Treason for which also he gave his own reasons and they were allowed His Lordship summing up all said that if the Court would not Bail him he hoped they would prefix a time for his Imprisonment or that he must needs look upon his Imprisonment to be indefinite that it had been the opinion both of the Kings Attorney 3. Car. and of the Counsell for the Prisoner at the same time that where no danger could happen by a mans being at liberty he ought to be Bailed after long Imprisonment and that six months had been then accounted a long Imprisonment That if he could not be relieved by this Court he was certainly an indefinite Prisoner He named the cause of Saint Paul who was put in Chains first and afterwards askt what he had done His Lordship did not compare his own case thereto but said he was accused without any Oath made against him and that the Articles against him did not amount to Treason had they been true He repeated His Majesties having declared his consent a second time c. and some other things which were particular to him and no man else and a case that cryed loudly for Justice He said he did think that if Bail was denyed him under his Circumstances every man of England was concerned and said he wisht that the future consequences of it may be duly considered That this Court had power c. for it was apparent that that Court as also the Courts of Chancery and Exchequer did relieve upon Appeales and Writs of Error besides that if he was Bailed he was yet bound to appear before that extraordinary Court when ever his Majesty should be pleased to call it whereas in the other cases there would be no further proceedings unless they were revived by the Plaintiffs in Parliament That whereas there might be some apprehensions of the Lords displeasure in case he was Bailed he was confident he could have the Major part of the Lords who for their own sakes would be content to be his Bail and if so it would take off the fear that they should be offended thereat His Lordship said he hoped he was before just Judges of the Laws That what ever had been said of him concerning Arbitrariness he doubted not but it would upon due inquiry be found quite otherwise That he prayed Justice and left what he had said to their consideration The Lord Chief Justice then speaking seemed to say the Earl of Danby had reflected upon them as if they had denyed him Justice in not hearing his Council The Earl of Danby desiring leave to interupt his Lordship did acquit the Court of any such Imputation and said that it was not in that Court but elsewhere that his Council had been forbid to plead for him which was also acknowledged by Mr. Justice Jones to be true The Lord Chief Justice then proceeded and said that for his saying the greatest part of the Lords would be his Bayl c. That it was not the fear of another Court had any influence upon them or that they should do such things as they feared to be called to account for but that it was the doing of Justice That they had heard his Lordship with a great deal of Patience and were not senseless of his Lordship's great sufferings that they were likewise sensible that the Kings desires were that his Lordship should have no longer Imprisonment than the Law requires and that he confessed that the King had done as much therein as lay in his power That it was not denied because that Court could not Bail for such Crimes neither would the Indictment found against him about Sir Edmundbury Godfrey have hindered nor was the Order of the Lords that which hindered them but that they were to act according to Law But he prayed his Lordship to consider that they could not relieve him according to Law That he did agree to some things mentioned by his Lordship and that it was a very hard case he should lye so long in Prison but here was the misery they could only compassionate him for that his Lordship was Imprisoned by a higher Hand and where they had no Power to Intermeddle He instanced in Indictments for Treasons and several other great Cases in which they could Bail Men but in this Case the Supream Jurisdiction of the Nation had laid their Hands upon it which was attended by the House of Commons with an Impeachment Whether their Lordships had Cause or not Cause to Commit his Lordship they could not inspect but that they ought to believe that his Lordship was justly Committed and that their Lordships in their mature deliberation would do nothing unjustly That over all the Courts in the Kingdom they had a Jurisdiction that only excepted and as it would be very Incongruous for an Inferior Court to bail whom they had Committed or to call in question their Process so would it be in like manner for them to do in this Case because the Lords exceed their Jurisdiction and were above them The Opinion of all the Judges in England being likewise taken therein and he was Imprisoned by too High a Court for them to Bail him But that his Lordship was not indefinitely Imprisoned as he alledged for whenever His Majesty pleased to call a Parliament he will have remedy That the King has power to do it when He pleases and for His Peoples good no doubt He will when He sees fit but that at some time the Circumstances of State differs
from other times that it may not for some space of time be thought convenient and though this may prove mischievous to a single Person or to two or three Persons yet such things must be indured for the Good of the Publick He said That if they of that Court Committed a Man for High-Treason and the King Adjourn them from time to time this Man could not be Bailed until they sate again so that he did confess as his Lordship had said that there is a Temporary failure of Justice where these Cases happen but not an Indefinite one He told his Lordship he must be content to wait the Kings Pleasure when he will call a Parliament That for his part he was before of Opinion that they could not Bail his Lordship and was so still The Earl of Danby to this answered That he must confess that his Ears did tingle to hear his Lordship say that the KING had done as much as lay in His Power when His Majesty is bound both by His Oath and by the Laws to see Right done at all times to His Subjects and he desired to know whether this was not the King's Court to which he had deputed a Power to see that Right done He said also that he was now under greater amazement than before since his Lordship had both granted that this Court can Bail any Treason and that the Order of the House of Lords did not hinder it which his Lordship till now took to be the only Obstruction to his Liberty That he hoped he had satisfied his Lordship that although he was imprisoned by a Higher Hand yet that the Bailing of him did not intermeddle with the Jurisdiction of that higher Judicature That for what his Lordship had said of the Opinion of all the Judges in England being taken in his Case he must needs inform his Lordship that that was a mistake as to himself for that the Opinion of the Judges had never been asked in his particular Case but once upon his Petitioning the King for Liberty to go to his Country-House at Wimbleden with a Guard or otherwise as his Majesty should think fit which Petition was referred to the Judges and they according to their wonted Prudence and Caution did only Report That they thought his Majesty could not legally grant the Petitioners Request That whereas his Lordship said That he was not indefinitely imprisoned for that whenever his Majesty is pleased to call a Parliament he will have Remedy and that he must be content to await the Kings Pleasure when he will call a Parliament He took these 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 confirmed than ever to be of that Opinion He said further That his Lordship had mistaken him in thinking he had said there was only a Temporary failure of Justice and not an Indefinite one for that he had said he took himself to be under an absolute failure of Justice and that his Lordship had rather proved the same than shewed any thing to the contrary The Lord Chief Justice said he was not a Judge at that time when the Judges Opinions were asked but desired his Brother Jones to relate how it was which he did accordingly Implying That the Case being put Whether the Lords in the Tower might be Bailed or have any Liberty it was the Opinion of the Judges they might not But that he did confess he did think the Earl of Danby was not concerned in that Question but that it related to the Popish Lords only The Earl of Danby to that answered That it did not reach his Case since they went upon a general Question Whether the Lords in the Tower might be Bailed affirming and shewing many Instances wherein his Case differed from the Popish Lords His Lordship said also that the Lord Chief Justice had argued for him That it is true the King might call a Parliament when he pleased and therefore it was as true that a man may lye all his life time in Prison And he said he did expect stronger and more powerful Arguments to have convinced him but now he was more encouraged than before not to give over a Cause which did so much concern every man in England as well as himself His Lordship said he had wrong done him that the King could do him no wrong being advised by his Courts besides that the King had now shewed his will to have him Bailed and he could not say that the Lords did him wrong because there was nothing in their Order to hinder his Bail besides that their practice had been contrary in the Case of a Commoner and that he would not say this Court kept him a Prisoner but by some body he was kept a Prisoner or else it may be the Stars might keep him a Prisoner Albeit he was legally Imprisoned yet by Magna Charta it was impossible for an Englishman to be without any prospect of relief they being to have Justice done them by Law at all times and without delay That he was in the Kings Court for Justice and should desire that every Judge might deliver his Opinion severally which they did accordingly Some Reasons were by them offered why his Lordship could not then be Bailed For their giving of which he was pleased to make an Acknowledgment Part of the Judges said there was a vast difference between his Case and the Lords in the Tower that his pressing Arguments the hardness of his Case and great Affliction he lay under did make them incline to believe That it were not amiss if it was taken into farther Consideration and one of them said it would do well if the rest of the Judges were consulted between this and the next Term. A Council that was at the Bar thereupon moved that his Lordship might come up the next Term by Rule of Court The Lord Chief Justice seemed displeased with the forwardness of the Council and the Earl of Danby excused it as if not done by his desire or directions but said that they were like to be troubled with him again for that he should not easily give over a Cause wherein he took the Liberty of the Subject in general to be as deeply concerned as himself The Lord Chief Justice then standing up used these or like words to the Earl of Danby Your Lordship must for the present be content to be Remanded And speaking to the Lieutenant of the Tower told him He must take back his Prisoner After which words the Lord Chief Justice immediately left the Court. FINIS Tertio Carolo and Melvins 1 Car. and Sir Tho. Darnells
AN ACCOUNT Of the coming up of Tho. Earl of Danby FROM THE TOWER OF LONDON TO THE Court of Kings-Bench At Westminster on Saturday the 27th of May 1682. TOGETHER With the most Remarkable Passages and Arguments used by his Lordship to that Court and the Answer of the JUDGES thereto LONDON Printed for John Spicer in the year M.DC.LXXXII An ACCOUNT of the coming up of Thomas Earl of DANBY from the Tower of London to the Court of Kings-Bench at Westminster on Saturday the 27. of May 1682. AN Habeas Corpus having been granted on Friday the 26 of May 1682. for the bringing up the Right Honourable Thomas Earl of Danby to the Court of Kings-Bench at Westminster His Lordship was by the Lieutenant of the Tower c. accordingly brought up the next day being the 27th where the Warrant or other Instrument of his Commitment being read Mr. Saunders who was of his Lordships Council directing himself to the Lord Chief Justice reminded the Court of the time when he was last brought up by Habeas Corpus and what was by his Lordship and his Council then desired viz. That he might be bayled And that albeit what was then offered by his Lordship or his Council the Court did not think fit to grant it at that time yet that at the Conclusion his Lordship said that they would take it into farther Consideration And that after so long a space the Earl of Danby was come up to hear what the Determination of the Court was upon such their Consideration or Mr. Saunders used words to this effect The Lord Chief Justice Pemberton Replyed saying You must remember Mr. Saunders we did not take time to consider of it we told my Lord of Danby we could not Bail him you must necessarily know that we had given our Opinion in it then Mr. Saunders then said he begg'd his Lordship pardon if he had mistaken his Lordship but that he must confess he had understood his Lordship so at that time Then the Earl of Danby himself began and continued a Discourse for about two hours without being interrupted the substance of the most remarkable passages whereof take as followeth Directing himself to the Lord Chief Justice his Lordship first said he met with an objection he did not expect and that he must assert what his Council had said to be true as to his Lordship with his own mouth having said that they would take time to consider of his Case till the next Term and that he did appeal therein both to the rest of the Judges themselves and to all who were then present in Court and that at his going away the last time from that Court he had given his Lordship thanks as then understanding they would take his Affair into farther consideration He said that he would not give his Lordship the trouble that now he did but that he thought it the case of every man of England and that not only the Right of a Peer but every English man was concerned His Lordship gave some Reasons why he had not come sooner up to hear the Result of their Consideration viz. That the next Term after he had been there an Indictment was preferred against him for the blackest of Crimes viz. of having a hand in the Death of Sir Edmundbury Godfrey in which case he wondred that any English Jury and some of them Gentlemen could believe an Irish Papist against an English Protestant and sepecially an Irish Papist who was upon Tryal for his own life and whose Evidence if it had been true was but an hear say only But that that wonder was much abated since he heard that the Foreman of that Jury had been as ready to acquit another of a Murder as to find him guilty that was Innocent His Lordship instanced in the trouble of Conscience which possest that wretch who Swore it against him meaning Fitzharris That he sent a Minister to beg his pardon and could not go to his Grave in peace until he had obtained it That before that person dyed he confessed that he had Sworn falsely against his Lordship and he named some other men who had put him upon it and whether it did proceed from any guilt of those persons who might fear they were discovered or from what other cause his Lordship could not tell But that he was informed there were persons yet tampering to see how they could procure some Evidence which might yet revive something of the same kind still against him He said he was in hopes that Malice which had hitherto prosecuted him would at length have been at an end but he found that whilst he was kept under this confinement he was always to be the object of their Malice and forged Inventions He instanced not only in his long Imprisonment but in the many Attempts that had been almost every week for almost two years to insnare him and particularly he named one Mackrath another Irish Papist who under a pretence of doing him a favour would have made him a Tool to have promoted their fallacy That Sir Edmundbury Godfrey killed himself but that he had the good fortune presently to detect that villany as he hoped he should yet live to do of some others Likewise that he had afterwards omitted coming up upon some prospect there was at one time of a Parliament before which he desired rather to appear could he see any hopes of one in any reasonable time He said his Case had such Circumstances that made it differ from all other Cases That he was Accused and Committed without any Oath or Affidavit made against him for any one Crime That the Popish Lords in the Tower were under other Circumstances Oaths having been made against them of the Blackest Crimes how regularly he did not inquire That there was not a Case but his in which there was not some Affidavit made His Lordship made some recital with what difficulty the House of Commons raised his Crime to the name of Treason of the Opinion of Sir William Jones against it but that at length they gave it the Title of Treason upon a Gentleman of the Long Robes saying that else it would dwindle to nothing in the House of Peers His Lordship instanced in the Kings Pardon which he then produced in Court and demanded the benefit of it and which His Majesty had been graciously pleased to declare to both Houses of Parliament not only of his Pardon but of his Innocency and that he would grant him his Pardon ten times over if this was defective either in matter or form Also that His Majesty had declared it in a particular Speech the same having been Printed and Published by Authority throughout the Kingdom That he had not only been thus Committed and thus detained for above forty Months but that for the most part of this time there had been no manner of Prosecution That if the Parliament had sat six days longer he had either been acquitted or Bailed and
that instead of being in Custody he had been really punished before any Crime was committed His Lordship instanced in great losses even of life which had been in his Family which had he been at liberty had in all probability been prevented His Lordship quoted several Cases and how each successively had been made a president to the other That he had his Majesties consent to be Bailed directing himself to Sir Robert Sawyer who thereupon stood up and informed the Court that his Majesty was willing his Lordship should be Bailed if the Court thought it could be done according to Law His Lordship further said his Majesties consent had now a second time been declared in that Court he desired the Judges would answer him why the Kings Prisoner should be kept in the Kings Prison by the Kings Court against the Kings will that it was neither better nor worse but a plain failure of Justice if a Peer Committed by the House of Lords must be kept a Prisoner till Discharged by the House of Lords for whom the Lords made a Prisoner was in effect the Kings Prisoner for that the Lords cannot sit but when the King will have them sit nor sit any longer than he pleases His Lordship then desired to read some written Papers which as I conceive was a Collection of the opinions of the Lord Chief Justice Cook and others in such cases from which he made several inferences and concluding them said these were the words of the Law besides the Sence of very great Judges His Lordship then produced several papers taken out of the Lords Journall particularly one bearing date 23 December 78 when the Question was put whether the Lord Treasurer should then withdraw and carried in the Negative and on the 27 th of the same Month the question put whither upon the Impeachment brought from the House of Commons the Lord Treasurer should be Committed and carried in the Negative and that then it was proposed to the Judges whether they can Bail any person in case of Misprision of Treason wherein the Kings life is concerned To which the Lord Chief Justice Scroggs and the Lord Chief Justice North Justice Jones and three other Judges gave severally their opinions that the Court of Kings-Bench may take Bail for High Treason of any kind if they see cause His Lordship made use of Mr. Seldens Arguments of Law for gaining the right of liberty to the Subject He said if a man was rightfully Imprisoned yet the Law intended his Imprisonment no longer than was necessary for his being brought to Tryal and that the Law had provided a remedy for all men by some ordinary Court of Justice His Lordship named some Judges in former times who at the end or dissolution of a Parliament were requested to Bail men and that those Judges said they must first know the Kings pleasure therein which they looked upon then to be principall necessary His Lordship said that it was evident that he was a Prisoner at the Kings will and pleasure and no bodies else Upon some foregoing words which I omitted to take His Lordship took occasion to say that the King alone cannot alter a Law nor that either House of Parliament alone could not Nay that the King and one House alone could not and that he was well satisfied the King and both Houses would never alter any Law made for the Liberty of the Subject His Lordship instanced something concerning the Kings Coronation-Oath and how he was thereby obliged to do Justice to his Subjects at all times without staying for the Assistance of any extraordinary Court and that he had appointed his Court of Kings-Bench as a constant place for all his Subjects to resort to for Justice His Lordship made use of some of the sayings of the late Lord Chief Justice Hales concerning the House of Lords one whereof was that he would always have reverence to that supreme Court but yet he supposed that supreme Court would desire them to do nothing but what was according to Law and therefore he did grant execution upon a Writ of Error notwithstanding that the same was then depending in Parliament His Lordship said he saw no reason why a bare Impeachment of the House of Commons should keep a man all his life time within four walls when the Order of the Lords was not understood to restrain them from proceeding on Writts of Error and Appeals depending in Parliament which were as strictly comprehended within the words of the same Order And his Lordship said he could not understand how any Court could take upon them to split the Lords Order so as to say which part thereof should be binding and which not His Lordship urging to be Bayled only that he might appeal to the Parliament his desire being that there proceedings might be kept intire His Lordship made a question whether another House of Commons which might consist of new Members would Impeach him de novo or indeed whether if that Parliament that did Impeach him had sat any time they would have Prosecuted the same things being at that time done in heates his Commitment being by meer distemper of that juncture of time and his Lordship cited a president of the Lord Mordent who was Impeached in one Session of Parliament and after a Pardon procured was never more questioned by the same Parliament His Lordship very often made use of Magna Charta he craved leave to observe the Speech of a great man who was once in that Court upon his Habeas Corpus having likewise been Committed from the Lords House and it did appear they would have Bailed him had it not been upon an Adjournment of Parliament if it had been a Prorogation he had been Bailed He said that man was a great Peer that he meant the Earl of Shaftsbury had born great Offices in the Kingdom and was allowed to be a very knowing man which Lord had said that that Court ought to Judge an Act of Parliament void if contrary to Magna Charta much more an Order of Parliament That in one part of that Speech the same Nobleman said he did not think it a kindness to the Lords to be made absolute and above the Law as it must be if it be Adjudged that they may Commit a man to an Indefinite Imprisonment and that the said Earl of Shaftsbury further said in the same Speech that the Court of Kings-Bench are the only proper Judges of those things and that if no relief is to be had there nor no inferiour Court could relieve what will become of us The Earl of Danby likewise said that in the worst of times they still had regard to Justice in these things and particularly they mentioned that in some of Bradshaws proceedings they would not admit Orders of Parliament to be of any force after the Dissolutions of the said Parliaments And said that he hoped we might have as much Justice now as in those times He said he was sorry