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 [Page 2] 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.

[Page 3]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. Tertio Carolo, and Melvins 1 Car. and Sir Tho. Darnells. 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.

[Page 4]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 [Page 5] 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 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.

[Page 6]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.

[Page 11]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?

[Page 12]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 [Page 13] 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.