THE CASE OF Mr. FRANCIS JENKES. BRING An Impartial Relation of his Imprisonment in the Gatehouse, with the Occasion of it, and the Means used for his Enlargement. AMSTERDAM, Printed in the Year, 1677. THE CASE OF Mr. FRANCIS JENKES, etc. M R. Jenkes, having been a Trader for many years, and observing the daily decay of Trade in the City, occasioned by such mischiefs, as lay not in the industry of its Inhabitants, but only in the power of the Government to redress; and that did require a more speedy redress than a Parliament Prorogued for 15 Months could afford; after having in vain solicited the Lord Mayor for a Common-Council, that might consider of a Petition about Trade; out of a hearty zeal for the good of the City, as well as encouraged by the consent and desire of many sober Cityzens, the Liberty reserved to the Lord Mayor, aldermans, and Common-Council, by the Statute of the 13th. of this King concerning Petitions, the Votes of a majority of the Temporal Lords at the last Session, together with the unanswerable Reasons given in their Protestation, did at the Folk-moot (or Common-Hall) holden the 24th. of June last passed, in the Guild-hall of London, thus diver himself. Mr. Common Sergeant. IT seems a vain thing for this Court to be serious about the choice of Magistrates and Officers for the well Government of this City, except they first take care to remedy those many Mischiefs and Grievances, which the City now groans under, and which seem so to threaten the ruin and destruction of the whole, that if there be not some speedy redress, there will be little need of Magistrates, and Officers, for there will be no City or People left here to be Governed. London has once already been burned to ashes, and firing is now become such a Trade, that not only London, the Burrow of Southv●ark, and the places adjoining, but all the Cities, Burroughs, Towns Corporate, and places of principal Trade throughout the whole Kingdom, are perpetually in danger; so that no rational or considerate man amongst us can promise himself, his Wife, his Children, or Estate one nights security, but they may all be devoured in the consuming flames, except some speedy and effectual course be taken. But this is not all; For were our Houses secure from fire, yet such is the general decay of Trade, as if not remedied, must unavoidably bring the whole City to poverty and ruin; and it is conceived, that this is very much occasioned by the French, who have laid such great Impositions upon our Woollen Cloth, Stuffs and other Manufactures, that we have almost lost our Trade with France, they have spoilt our Trade with Holland, Flanders and Germany, by a destructive War. They have ruined our Trade at home, and beggared many thousands of our honest and industrious Weavers, and other English Manufactors and Traders, by the vast quantity of their silks, and other unnecessary Commodities imported hither: so that upon an exact balance of the Trade between us and them taken, it has been demonstrated that this City and Kingdom doth lose Eleven hundred thousand pounds every year. By means whereof, they who in Queen Elizabeth's time might not be suffered to build Men of War, are now grown so powerful at Sea, as to be able to beat both Dutch and Spaniard, and have made themselves in a manner sole Masters of the Mediterranean Sea: And they are grown so presumptuous as daily to injure and affront our English Merchants, and sometimes in his Majesties own Ports. Their Privateers daily take our Merchant's Ships, plunder others, strip, imprison and torment our Seamen to the great discouragement of our English Navigation, and almost ruin of the Merchant. I shall instance but in one thing more, but that is worse than all the rest, That is the just apprehension that is upon the minds of good men, of danger to his Majesty's Person, and the Protostant Religion. I had not spoken this at this time and place, but having the honour to serve this City in Common Council, I have endeavoured at several times to bring these things before that Court, but could not. In the end of the last Common-Council I did desire my Lord Mayor that a Common Council might speedily be held to hear and consider of a Petition about Trade, subscribed by a great number of Citizens of good quality, and his Lordship did then promise that a Common-Council should speedily be held: But it is a good time since, and there have been many Fires and Losses, but no Common-Council. Wherhfore, methinks it doth become the wisdom and gravity of this Court not to admit of any longer delay in a matter wherein their All is concerned. And I do humbly move (and I conceive it is not only my sense but the sense of the far greater part of this Court) that some Members of this Court may accompany the Sheriffs and Mr Common Sergeant before we proceed to any other matter, to wait upon my Lord Mayor, and the Court of Aldermen, to desire that a Common-Council might speedily be held, humbly to Petition his Majesty, That for the quieting and satisfying the minds of his liege People, and for remedy of the many mischiefs and grievances we now groan under, He would graciously be pleased (according to the Statutes of the 4th. and 36th. of Edw. 3.) timely to Call a New Parliament. Scarcely were the words, A New Parliament, pronounced, but the greatest part of the Assembly cried out, Well moved! Well moved! And though none spoke up formally to the Sheriffs, yet several amongst them spoke enough to show a high approbation of what had been said, and not one word was spoken in contradiction: which when the Common Sergeant saw, to prevent (as is conceived) others speaking to the same matter, he spoke to this purpose. That what had been moved, seemed to be the general sense of the whole Court, and since the Gentleman that made the motion, was pleased to join him with the Sheriffs, and that he must offer his opinion in the matter; It was this, That it was not so proper to carry up that message before they did proceed to their Elections; as first to determine their Election, and then carry up an account of these and that together. But many in the Court did insist upon the motion and desired a message might be sent up immediately. Whereupon one of the Sheriffs spoke, and did acknowledge That what had been said by the Gentleman that spoke first was true, but that he was an Old Citizen, and had long known Common Halls, and he did believe that the proper Work of the Day was the Election of Officers, and therefore he did desire that the Court would proceed, and not to carry up the Message till after that was done. To which one replied; That according to his utmost understanding that Court was one of the ancientest, greatest and most powerful Courts of the City, and although the customary business of this day were the choice of Officers, yet that Court had cognizance of any thing whatever that did relate to the good of the City, and therefore it was conceived, that nothing was more proper at that time than this which concerned the preservation of the City from utter ruin. Upon which the other Sheriff directing his discourse to the Assembly, said, That what the Gentleman had moved there was true, and not unknown to most of the persons there present; but that he was of his Brother's opinion, 〈◊〉 it was fit first to go on to the work of the day, and not to carry up that message till after the Election. Many persons being still dissatisfied, and calling for a present message to be sent up, the Gentleman, who first moved the business made it his request, that since there seemed a difference touching the circumstance of time, that they would proceed to Election, and carry up the Message with the persons Elected, as the Sheriffs desired; to which the common Hall unanimously agreed. Upon which, silence being made, the common Hall proceeded to election of Sheriffs, and made their Election, and sent up an account thereof to the Lord Mayor and Aldermen by the Sheriffs and common Sergeant, as is usual in such cases. The Lord Mayor and Aldermen presently came down and took their seats in the Court of Hustings according to custom; upon which the common Sergeant came forth to the front of the Court, and declared the Names of the persons Elected, and immediately gave back. Thereupon the common Hall called out for an Answer to their Message; upon which the common Sergeant steping forward again in the presence of the Lord Mayor, aldermans and Sheriffs, said. That he had acquainted his Lordship and the Aldermen with their request, and that his Lordship had commanded him to declare unto them, that he would be ready to join with them in that, or any other thing for the good of the City. And with that the Lord Mayor and Aldermen, etc. left the Court of Hustings, and dismissed the Assembly. After Dinner, the grave Recorder, Sir John Howel, out of a great pretence of Loyalty, but indeed a personal Grudge against Mr. Jenkes, conveyed the news to White Hall, where with his usual strain of Rhetoric, he made such a dismal representation of the matter, and was so powerful in his Eloquence, as to occasion both the Sheriffs and some other of the City Officers to be sent 〈◊〉, who were examined by t●● Lord Ch●● Justice Rainsford, in the presence of the King, the Lord Chancellor, the Lord Treasurer, Duke Lauderdale, and other Lord. The Sheriffs 〈◊〉 others made Affidavits, but a Copy of them could never be obtained. Upon the 〈…〉, Mr. Jenkes was summoned by a Messenger to appear at the Council Board the next day. Accompanied with many of his Friends, he attended in the Lobby, near the Council Chamber, according to his summons, and after some time was called in, but his Friends pressing to follow him (as is usual on such occasions) were kept out, and not one suffered to go in with him. The King sitting in Council, the Lord Chancellor, D. Lauderdale, and other Lords about him, The Clerk read a Affidavit made by the two Sheriffs, the common Crier, and one John Green an Attorney; the Substance whereof was, That Fr. Jenkes, at a Common Hall in London, the 24th. of June last passed, did complain of Grievances, an did desire that before they went upon any other business, certain Members of that Court might accompany the Sheriffs and the Common-Sergeant to wait upon the Lord Mayor, then in the Chamber, to desire that a Common-Council might be called to Petition his Majesty, in the Name of the City, to Call a New Parliament. The Affidavit being read, the Council Board proceeded to this effect. Lord Chancellor. Sir, What say you to this matter? Mr. Jenkes. I desire to know if this be all you have to charge against me? A lord Then you make little of this: You will find it to be enough. Lord Chancellor. Sir, Did you move for a Common-Council to Petition for a New Parliament? Mr. Jenkes. Is it any Crime to Petition for a New Parliament? 〈◊〉 which his ●●●●ship not thinking fit to give any 〈◊〉 proceeded. Lord ●●●●●llour Answer to the matter in charge. Mr Jenkes. W●●● the liberty of his Majesty and this ●oard, I will. The King. Go●. Mr Jenkes. May it please your Majesty▪ Of all the Subjects you have, A Lord (interrupting him) Answer to the matter. Mr. Jenkes. If his Majesty will be pleased to hear me, I hope you will The King. Let him go on. Mr. Jenkes. May it please your Majesty, Of all the Subjects you have, none are more Loyal than your City of London, and in the City, none more loyal than myself, and no man there did more desire, and in my circumstances act more in order to your Majesty's Restauration than myself: And I do desy any Citizen or other, whomsoever, to say I have forfeited my loyalty by any one individial act The King interrupting him, Sir, you are not Lord Mayor, and I am very well satisfied with the loyalty of the City, and that it needs no such Vouchers. Lord Chancellor Speak to the matter. Mr. Jenkes. May it please your Majesty, Being summoned to a Court of Common Hall in London, which is a Court that consists of the main Body of the City. Lord Chancellor interruping him, Sir, you are under a double mistake, for first, it was not a Court; and next, it did not consist of the main Body of the City of London. Mr. Jenkes. With your Lordship's leave, it was a Court which doth consist of all the Livery of the City of L●●don, which, if I understand any thing, is the main Body of the City of London. And every member of that Court hath freedom to propose and debate any such matter or thing as he believes is for the service of his Majesty, and the good of the City; and no man can use more understanding than God has given him. And I assure your Lordship, what I then moved, was according to the utmost of my understanding for his Majesty's service, and the good of the City. And (my Lord) if I were under a mistake, I had the fortune to have good Company, for what I moved, was approved by the whole Court. The King. It was not so. Secretary. We have a deposition to the contrary. M. Jenkes. It was so. Other Lords. It was not so. Mr. Jenkes. May it please your Majesty, If you have a hundred depositions to the contrary, if the matter of fact were so, it was so, and I do affirm, it was approved by the whole Court. A lord How came you to be a Privy Counsellor? Mr. Jenkes. I never had any such ambitious thought in my head. A lord How came you then to meddle with matters of State? Mr. Jenkes. I thought any of his Majesty's subjects, in an humble manner, might Petition his Majesty for a Remedy of any Grievance whatsoever. A lord Do you think any one may Petition for a Parliament? Mr. Jenkes. I believe they may. The King. I know whose Scholar you are, and I'll take care that none such as you shall have to do with the Government. Several Lords. What was't you moved? What was't you moved? M. Jenkes. My Lords, What I spoke was not in a Corner, but openly in the faces of a Multitude, and therefore cannot want a Witness to attest it. A lord Just now it was a Court, and now it is a Multitude. Mr. Jenkes. We Citizens pretend not to place our words so exactly inform, but that there may bosom mistake in them but I think my expression was no great absurdity, for though it were a Court, yet the Persons there were so numerous, that it may not be very improper to term them a Multitude. Yet, if I have failed in due expression, I beg his Majesty's pardon. I know somewhat of the Customs of the City of London, and the Powers and Privileges of the Courts there, and somewhat also of the Laws of England, but what the Powers and Customs of this Court are, I know not, and therefore shall desire to say little, lest I should unwillingly offend. Lord Chancellor. Sir, Pray tell us, who advised you in this matter? The King. Who advised you? Mr. Jenkes. What I then proposed, was consented to by the whole Court, and so became their Act, as I said before. Lord Chancellor, and Others. Answer directly to the Question, or declare you will not. Mr. Jenkes. Since I see your Majesty and the Lords are angry, though I am not sensible that I have given you any just cause for it, I must not say, I did it without advice, lest you should be more angry, and to name any particular Person (if there were such) would be a mean and unworthy thing, therefore I desire to be excused all farther answer to such questions; since the Law doth provide, that no man be put to answer to his own prejudice. The King. We will take that for an answer. Lord Chancellor. Since you name the Law, by the Law you shall be tried. Mr. Jenkes. I thank you, and this Board▪ Lord Chancellor. You may withdraw. He immediately withdrew, and the room being cleared of all his friends and other company, than the Messenger, was kept there for the space of an hour and an half, and af●●● 〈…〉 ●●ing called in any more, was by a Warrant of the Council, sent to the Prison of the Gatehouse, within the Liberties of Westminster. Soon after his commitment, he demanded of the Keeper a Copy of the Warrant, by which he was was committed, as he might, and by Law ought to have. The Keeper gave him a promise of it, but delaying the performance for two days, Mr. Jenkes resolutely demanded it of him as his duty, but could not yet obtain it▪ Sometime after the Keeper sent him one voluntarily, by his man, with this excuse, That before he had positive order to deny him one, and now had to give it him. The Copy of the Warrant. WHereas it appears to his Majesty in Council, by the examination of Sir Thomas Gold, Sir John Shorter▪ Knights, Sheriffs of the City of London, John Wells Common-Gryer of the said City, and John Green one of the Attorneys of the Lord Mayor's Court, taken upon Oath before the Lord chief Justice Raynsford, That Francis Jenkes of the said City, Linen-draper, did on the 24th. of this instant June, at a Common Hall then assembled at the Guild-Hall of t●● said City for choosing Officers for the ensuing Year, in a w●● seditious and mutinous manner, openly move and stir' the persons th●n present, That before they did go on to the choice of new Officers, (which was the only occasion of that Assembly) they should go to the Lord Mayor, and desire him to call a Common-Counsel, that might make an address to his Majesty, in the Name of the City, to call A New Parliament▪ And whereas the said Francis Jenkes, being now called in and heard before his Majesty in Council, was so far from denying or exic●●ating his offence. That be did in a presumptuous and arrogant manner, endeavour to justify the same. These are therefore to command you, to take into your custody, the Body of the said Francis Jenkes, herewith sent you, and him to Keep safely, until he shall be delivered by due course of Law, for which this shall be your Warrant. Dated at the Council Chamber in White-Hall this 28th. Day of June, 1676. To the Keeper of the Gatehouse Westminster, or his Deputy. Lindsey, Peterborow, C. Craven, G. Carter, Lauderdale, Northampton, Carbery, W. Maynerd, Tho. Chicheley, Danby, Anglesey, Arlington, , J. Williamson, R. Carr, Finch, Ormond, Bridgwater, Hen. Coventry, J. Ernle. Robert Sowtwell. NExt day being the. 29th. of June, divers of Mr. Je●kes Friends waited upon Mr. Secretary Williamson and desired to become Bail for him; but Mr. Secretary refused to take any Bail, but told them, if they did mind him of it upon Wednesday morning, he would move it at the Council. But Mr. Jnkes believing that to be (as it proved) but a delay, ordered some of his friends to wait upon the Lords Chief Justice Raynsford, and moved him for an Habeas Corpus ad Subjiciend, & Recipiend. etc. which accordingly was done; but his Lordship, denied to grant it. Alleading no other reason, but that it was Vacation; though his Lordship could not but know that Writ to be the Subjects Right at all times, as well out of Term, as in Term, and Mr, Jenkes friends were ready to offer him multitudes of Precedents when it had been granted out of Term both anciently and since his Majesty's Restauration. Mr. Jenkes resolving to leave no legal course, to attain his liberty untried, upon Friday the 30th. Of June at a General Seal, did, by his Counsel move the Lord Chancellor for an Habeas Corpus; at first his Lordship did seem much surprised and did refuse to hear his Counsel, but after a little pause, his Lordship bid Mr. Jenkes Counsel to move it again the next Seal, and ordered the Seal to be put off from Twesday the 4th. until Thursday the 6th. of July. Upon Wednesday the 5th. of July, Mr. Jenkes friend waited upon Mr. Secreatary Willamson, and desired him according to his promise to move in Council that Mr. Jenkes might be Bailed; but he said, he had spoke with the King and could do nothing without a Petition, so upon Thursday the sixth of July, being a Public Seal, Mr. Jenkes Counsel did again move the Lord Chancellor (according to his Lordship's order) and asserted the Authority of the Lord Cook, who is most clear in the Case, 2. part. Instututes fol. 53. Speaking of the Writ of Habeas corpus in the King's Beach, 〈…〉, The like Writ is to be granted 〈◊〉 of the Chancery 〈…〉 (as in the King's Bench) or in the Vacation, 〈◊〉 the Court of Chancery, is, Officina Justitiae, and is ever ●p●●ed, and never Adjourned: So as the Subject being wrongfully ●●prisoned, may have justice for the liberty of his person ●●●●ell in the Vacation time as in Term. And in the 4th. Instit. fol. 88 Speaking of the Court of chancery, he saith, And this Court is the rather always 〈◊〉, for that if a man be wrongfully Imprisoned in the Vacation, the Lord Chancellor may grant an Habeas Corpus, 〈◊〉 ●o him justice, according to Law. And, ●ide 4. Instit, 〈◊〉. 182.190. Thus the Lord Cook. Mr. Jenkes Counsel did likewise oss●● a Precedent or two, but the Lord Chancellor, making light of the Lord Cooks opinion, saying, The Lord Cook was not Infallible; And ●●●g●●ng all that Mr. Jenkes Counsel offered, overruled the matter, denying to grant the Writ. On Tuesday morning July 11th. at the Quarter Sessions holden for the liberty of Westminster, Mr. Jenkes being still a prisoner in the Gatehouse, within that liberty, did move by his Counsel to be bailed, where this was the substance of what passed as it was taken by a by-stander. Court. We have no such Name in our Calendar, and we sitting here by a limited Commission, can take no notice of any person that is not in our Calendar. Council. Every keeper of a Prison either in County or Franchise ought, by the statute of 3. H. ●. cap. 3. to certify the names of every Prisoner in their Custody at the next general Goal-delivery there to be Kalendered before the Justice of Goal-delivery that the parties may be delivered according to Law, upon pain of 100 l. For every default there recorded, and I demand that this default of the Gaoler may be recorded according to that statute, and that you would as you, may▪ command him to Calendar him now. The statute was read. Court. We are no general Goal-delivery for we cannot Try several felons but they must be tried at the general Goal-delivery for the County. Counsel. You are a general Goal-delivery for all offences within the Cognisance of your Franchise, and therefore unless the Fact for which he is Committed be such as is above your Cognisance he ought to be Tried here, and if it be such a Fact, he ought notwithstanding to be Kalendered here, that you may send him to the County Goal where he may be tried. Goaler. I never did Calendar any man that was committed by the Council Table Counsel. The neglect hath not taken away your duty, and as often as you have ommitted to do so, so oft you have deserved to be fined, and I do again demand of this Court that this default of yours may be recorded. The Court inclined to the Gaoler, and would not record his default, whereupon the Counsel proceeded. Counsel. Since you exclude him from the benefit of your present Commission, I apply myself to you, without respect to that, as you are Justices of peace in general, and as such, you have power to bail any man bailable by Law, except in some particular cases where you are restrained by statute. Court. By whom is he committed. Counsel. By the Council Board. Court. Do you believe the Council Board can commit to prison. Counsel. I admit it. Court. We don't know for what offence he is committed. Counsel. I have here a Copy of the Commitment and desire it may be read. But the Gaoler refusing to own it for a true Copy, though given by himself, and the Court requiring a nicer proof, that it was a true Copy, than could at that time be made, they ●●●erd the Counsel to attend in the afternoon, and in the 〈◊〉 time the Gaoler to give a true Copy. In the afternoon the Counsel appearing, the Court called to him, and asked him what he had to say. Counsel. I have now a Copy given and signed by the Gaoler for a true Copy, and desire it may be read. The Gaoler who was to prove it a true Copy, upon the Counsels coming into Court, took an occasion to slink away and the Court (as if it had been by design) were ready to take hold of that opportunity to evade the business, but Mr. Jenkes friends fetched him back, and he Swearing it to be a true Copy, it was read. Court. What is it you demand? Counsel. What I did before: that there being nothing in this warrant for which he is not Bailable by Law, I demand that he may be Bailed. Court. You have taken a wrong course in coming to us. Counfel I presume he applies himself properly to you, for he being a Prisoner within your Liberty, you are the most proper persons to bail him: As Justices of the Peace you have power to bail any man within your Jurisdiction, bailable by Law, and where you may bail by the Law, you ought to do so, and I demand it for Mr. Jenkes. Court. Where do you find such power given to Justices of the Peace? Counsel. By the same Statute, of H. 7. that I oited against the Gaoler, the enacting part whereof saith, That the Justices of the Peace, in every Shire, City or Town, or two of them at the least, whereof one to be of the Quorum, have authority and power to let any suck prisoner or persons, Mainpernable by the Law, that have been Imprisoned within their several Counties, City or Town, to bail or mainprize, unto their next General Sessions, or unto the next Goal-delivery, of the same Goals of every Shire, City or Town as well within Franchises as without, where any Goals be, or hereafter shall be, etc. The whole Statute was read, and the Court taking bo● of the preamble, said. Court. This statute was made for the prevention of bailing Felons not bailable by Law, and enables us only to bail Felons bailable by Law. Counsel. The Preamble of the Act recites that mischief occasinoned by the Statute of 1. R. 3 But the Enacting part Repeals that Act and gives you a general power of letting any persons mainpernable by the Law to bail, and I'm sure no statutes made for the liberty of the subject ought to receive such a straight Construction. Court. Do you consider by whom he is committed? the Privy Council. Counsel. I do, and think that altars not the case. Court. He is committed by a superior Court and we who are an Inferior one cannot bail him. Counsel. It is not the Court that commits but the Fact for which the party is committed aught to direct you in Bail. The Statute of H. 7. hath no such exception in it, nor hath any other since put any such restraint upon you. Court. Would you have us Bail him after the Lord Chancellor and the Lord Chief Justice have refused to grant a Habeas Corpus? Counsel. They did not deny the Habeas Corpus because he was not Bailable by Law, but because the Course of their Courts in their opinions would not admit it, but however, if you ought to Bail him, as by the Statute I think you aught, their refusal does not lesten your duty. Then the Court put him several cases that did not at all reach the present case, as they seemed to think themselves by their faint urging them. Court. We doubt very much that any inferior Court can Bail a man Committed by a Super●●●● one. Counsel. Scruples and fears do nor 〈…〉 Law: 〈◊〉 ●●out was once made in the Kings Benef●● th● great case of S●lden and others, but the Law was for the ●●sone● bef●●● that time, and was sufficiently settled then, and 〈…〉 from that in reason. 〈◊〉 〈◊〉, for that was upon a Habeas corpus out of the King's Bench. Counsel. That is but a circumstantial difference. The Habeas corpus from that Court is only to remove the prisoner and the cause before them, that Justice may be done to him, Mr. Jenkes is already within your Jurisdicton, and the statute gives you Authority to Bail him, and your Authority makes it your duty, and I rely upon that. Court. We considered upon it at Dinner, and do belive it a rare case and fit to be advised upon, and we will advise. Why did you not move yesterday when my Lord Chief Justice was in Town? Now there are no Judges in Town to advise with. Counsel. That we did not come yesterday was no design, for he is not so fond of a Goal; and if it be an indiscretion, yet that is no sufficient reason to detain a man in prison, however if you have power (which you ought to know) you have it as well when they are not in Town as when they are. Is he Bailable by Law or not? Court. There is nothing in the Warrant for which he is not Bailable by Law. Counsel. For what reason then do you deny him? Court. We do not deny him, but we will advise because he is Committed by a superior Court. Counsel. No man ought to be imprisoned for any misdemeanour before Conviction without Bail, and it is against the Petition of Right, that any man Bailable by Law should be detained in Goal without it. I don't know how by such denials as this the being Committed by a superior Courtship g●ow 〈◊〉 a reason, but at present I think th● Petition of Right spoils it for being a good one. Court. You can give us no Precedent of any one being Bailed by Justices at the Sessions, who was committed by the Council Board. Counsel. I believe it is a rare case that a man should be forced to apply himself to such, but I think I ca● furnish you with an instance, and that is of one Cannon a Quaker who was committed by the Privy counsel about Christmas last, and was Bailed at the Sessions of the Old Bailie. A pert By-stander, no ways concerned, suggested to the Court, and the Court repeated after him. Court. He was committed to Newgate Prison, and was Kalendered there. Counsel. If you stick to the reason of being committed by a Superior Court, that is no answer; but if it must be an answer, Mr. Jenkes is committed to the Prison of this Liberty and aught to have been Kalendero here, and then I do again demand that the Gaoler be fined. Court. We think it a rare case and fit to be advised upon, and our Commission we here sit by, directs us to do so in difficult cases. Counsel. I told you before, I have nothing to do with the Commission you hear sit by, and yourselves excluded me from it, but apply myself to you as Justices of Peace merely, and as such, you ought to take upon you the knowledge of your Office. Court. In the great case of Selden, that you Cited, the Judges took two Terms to advise. Counsel. You very well know what Opinion was had of their doing so. Will you advise upon it to Night with the King's Counsel, and I'll attend you to morrow morning? Court. We think fit to advise with the Judges about it till next Sessions. 〈◊〉 〈…〉 can easily interpret wi●● such advili●● 〈◊〉. 〈…〉 say you apply yourself to us as Justices of 〈…〉, than you may come to any two of us a fortnight hence or more and perhaps we may advise in the mean counsel. I believe it will be a difficult matter to get any two of you together upon this occasion. Mr. Jenkes. finding all these common Doors to Liberty shut against him, did by advice betake himself to another method, not less legal than the former, though the Power, granted by the Statutes, to Justices of Peace and the constant issuing of the Writ of Habeas Corpus upon demand (both more easy Courses) have occasioned it to be of more seldom use. Justice Filzherbert in his Natura Brevium (an Author and a Book of Justly venerable Authority in our Law) in h●s Chapter of Mainprize declars, That If a man be taken by the King's Commission and kept in Prison for Felony or Misdemeanours, be may by his friends put in sureties in the Chancery, that he will appear before the Justice, etc. And be of good behaviour, etc. And that body for body, and thereupon he shall have a Writ out of the Chancery unto the Sheriff or unto the Constable of the Castle where he is Imprisoned, to set him at liberty if he be Imprisoned for that cause and for no other. Which words seem plainly to declare the Writ of Mainprize to be the subjects right, and not to leave a discretional power to the Officers of Chancery in granting it. But the scarcity of Precedents being the great Objection against the Habeas Corpus out of Chancery, Mr. Jenkes resolved to offend no more in that kind, and therefore caused a search to be made in the Rolls in the Tower for the Writs of Mainprize, where a multitude of them was found and many in the case of a Commitment by the King's command. A Copy of one and a Note of several others were taken out, to Back the Authority of Fitzherbert. With this provision, on Monday July 17th. four of Mr. Jenkes friends, substantial Merchants, attended with a Counsel went to the Lord Chancellor, and though upon tender of themselves as Bail for him, they might have demanded their Writ of Mamprise, as the Subjects right without other formality, yet they addressed themselves to him in a more respectful manner by way of Petition, thus. To the right honourable Henry Lord Finch, Baron of Daventrey and Lord High Chancellor of England. The humble Petition of A. B. C. D. of London Merchants, friends to Francis Jenkes now Prisoner in the Gatehouse of Westminster, showeth: That the said Fr. Jenkes was Committed to the said Prison by virtue of a Warrant, a true Copy whereof is here unto annexed, for a fact Bailable by Law, for which, and no other cause, he yet remains there a Prisoner: And that in this and all other cases of like nature, your Petitioners are advised upon putting in Bail in the Court of Chancery, according to the ancient course and usage thereof, a W●rit of Mainprize ought to Issue under the Great Seal, to be directed to the Sheriff or Keeper of the Prison where such prisoner stands Committed, to deliver the prisoner so Committed. That your Petitioners being men of good Estates (as shall if your Lordship require, be made out to your Lordship) do desire and are ready to become Bail for the said Fr. Jenkes, according to the course of the Chancery, and according to the Law. The Petitioners therefore pray, That your Lordship would accept of Bail accordingly, and that thereupon your Lordship would order a Writ to be made forthwith, to be directed to the Keeper of the Gatehouse, for the discharge of the said Fr. Jenkes. And your Petitioners shall always pray, etc. The petition being sent in to, and read by his Lordship, was returned by the Secretary with this answer, That his lordship did very well approve of the 〈…〉 but since Mr. 〈…〉 committed by the Council P●●●● he thought fit 〈…〉 Petitioned 〈◊〉 should Bail him. But Mr. Jenkes friends not being satisfied with that answer, pressed to speak to his Lordship, and were by his Lordship's order called in, who coming towards them, spoke to this effect. Lord Chief Justice. Who Is't that puts you upon these improper methods. Counsel. We presume this address to your Lordship to be a proper course in our case and is such as we have prsident for. Lord Chief Justice. Are you a Lawyer? Counsel Yes, my Lord. Lord Chief Justice. Have you read Fitzheberts' Brevium? Look in his Writ, de homine replegiando. Counsel. We have nothing to do with that Writ, but it is by Fitzherbert that we are directed to this course, in his Chapter of Mainprize, where he saith (what is before Citied) and we are confirmed in his opinion by ampltiude of Precedents out of the close Rolls in the Tower, I have the Copy of one here, and the number and Roll of many more. The precedent shown to his Lordship was this. Ex Rol. claus. de Anno Regni Regis Ed. 3. xi. parte prima membra, 28. Rex Senescallo & Marescallo Hospitij nostri, De deliberand. Ric● Monyword a prisona. salutem. Cum Rich Monyword in prisona Mariscallcae nostiae per preceptum nostium, pro quibusdam transgressionibus & contemptibus nobis factis ut dicitur detentus, existat sub custodia Jamtoris nostri, ac Williel. Stury Chivaleir, Tho. Pride de Comitat. Salop, Oliverius de Burdeaux de Com. Berkes, Andreus Aubray, Johannes Pisselan, & Petrus Fan de London, coram nobis in Cancellaria no stra, personaliter Constituti manuceperunt predictum Richard viz. qui libet corum corpus pro corpore habere coram nobis, vel Justitiariis nostris, aut Conscilio nostro, quandocunque & ubicun que volucrimus, ad mandatum nostrum ad stand. rect. de transgressionibus, & cont●mptibus & aliis excessibus quibuscunque, unde indictatus vel rettatus est, & quod bene & fideliter erga nos, & Populum nostrum, de cetero se geret, vobis mandamus, quod prefatum Ricard. a Pri●ona praedicta, si ea occasione, & non alia, detineatur, in eadem deliber ari faciatis, per manucaptionem supradictam. Teste Rege apud Westmonast. decimo nono die Martij, P. istm. Regem. Convenit cum Recardo Laur. Halsted Deput. Algernon May, Militis. The Note of the Number and Roll of several Writs of Mainprize upon Surety put into Chancery, shown to his Lordship, was this. II. Ed. 3. pt. 1. To the Constable of the Tower, to Deliver John Brice. II. Ed. 3. pt. 1. mem. 29. To the Constable of ●he Tower, to deliver Bernard Pouch II. Ed. 3. pt 1. mem. 28 To the Constable of the Tower, to deliver Henry Compton Teste 26 Martij Eodem Rot. 23. To the constable of the T●wer, to deliver John de Wesenham. Teste 18 Aprilis. 4● Ed 3. pt. 1. mem. 6. Custod Forest. For delivery of several persons committed for Hunting in Forests, Since the Stat. 28 Ed. 3. Cap. 9 Eodem Rot. man 10. The like Teste 20 Aug. Eodem Rot. mem. 17. The like. ●odem Rot. mem. 25 The 〈◊〉 Will. de Clark 3. Rich. 2. mem. 3. To the Sheriff of London, to deliver Nich. de Swederton & Joh. Deye. Teste 5. Decemb. Eodem Rot. man 22. To the Justices of North Wales 〈◊〉 deliver Lloyd. Lord Chancellor. One Precedent of discretion is worth a thousand of these Precedents. His Lordship read the Precedent, and observing it to bear Teste the 19th. day of March, which could never be in Term, asked, When it was returnable? And said, It must be returnable in some Court at Westminster. Counsel. This Precedent hath no Return, neither doth the Nature of the Writ in this Case require one, for it is only a Mandate to the Gaoler, to set him at Liberty upon Surcties, first taken in Chancery, for his appearance before the Justices, which Justices, and the time of his appearance, I suppose are to be named in the Recognizance. Lord Chancellor. Whether there ought to be a Return is the Question; Besides, this is a Writ directed immediately to the Marshal of the Household, and is a disserent Case. Counsel. With submission to your Lordship, it makes no disserence who is the Gaoler, and those I have given your Lordship the Number and Roll of, are to several Gaolers. Then Fitzharberts Nat. Brevium was shown to his Lordship, and upon reading the words there, If a man be Imprisoned by the King's Commission, etc. His Lordship said, that it was intended of one Imprisoned by virtue of a Commission out of Chancery. Counsel. I humbly presume, that is not the sense of the Book; the Precedents I have shown your Lordship seem to Interpret it, and are upon other Comments; and Fitzharbert in his Abridgement Tit. Mainprize pl. 23. citys a Book Case, that shows this to have been a course in the Chancery, but we submit it to your Lordship's Judgement. Lord Chancellor A little submission in a proper Place will do, but he hath a mind to come out with a high hand Counsel. He has a mind to be discharged by 〈…〉 Warrant for his Commitment directs. Lord Chancellor. I am not to control any Act o● the Privy Council, Counsel. At the last motion for a Habeas Corpus, your Lordship was pleased to say, That though that was not a proper method for Mr. Jenkes to obtain his Liberty by, ye● there was one; and upon that encouragement from your Lordship search has been made, and this Course we have now taken found to have been the ancient Course, and we did presume the same that your Lordship meant. Lord Chancellor. You have used a great deal of industry to miss the right way. Your Precedents of Edward the 3d. and Richard the second, since three hundred year old, I'll consider off till next Term. Upon which Answer Mr. Jenkes his Friends withdrew. Now the plenty of Precedents proved as great a fault, as want of them did before, and their Age, which uses to add to their Authority and give them a greater respect, made them contemned: Such always is the Success where, Stat pro Ratione, Voluntas. In the Afternoon, the Secretary that first carried in the Petition, came to Mr. Jenkes in a dissembled confusion, and told him that he had committed a mistake in returning the Petition, That his Lordship had asked him for it, Note, That he returned it by his Lordship's Order. and would be very angry with him if he had it not; That he had left his Lordship looking over some Papers and taken that opportunity of coming for it, and desired that he might have it to preserve him from his Lordship's displeasure. Tho the Morning's action gave Mr. Jenkes a great deal of reason to suspect the Secretary's tale to be a mere contrivance, and easy to surmise the Truth, yet he took no notice of what had men passed, but sent the Petition, which was then in some of his Friends hands, that evening to him. Upon the second thoughts which his Lordship bestowed upon the matter of the Petition, he was better reconciled to it, and proved better than his word in considering the Precedents; for, in stead of pausing on them till the next Term, he was pleased to carry them and the Petition to the Privy Council the next ●●●●nesday, where, though all the particulars are not known, upon ●●edible Information this was the substance of what passed. His Lordship acquainted the Board of the Address that had been made to him, and moved that the Petition might be there read. After it was read, his Lordship told them that it had some appearance of Law, and desired that the Attorney General might give his opinion. Mr. Attorney told him, If it were Law, his Lordship ought to grant it, if it were not Law, then to deny it; If it were of such difficulty as he could not satisfy himself, That then he should advise with the Judges. His Lordship then moved for an Order of Council for his direction in the matter, to which some of the Lords replied, That they were a Court of State and not of Law, and that it did belong to him as Lord Chancellor to inform them in matters of Law. Thereupon his Lordship clapping his hands on his breast, said, I thank God I have Courage enough to serve his Majesty. About the latter end of July some of Mr. Jenkes his Friends attended his Lordship again, and offered him Bail insisting upon the Writ of Mainprize as the Subjects Right, alleging to his Lordship the hazards that his Health, his Family, and his Trade were exposed to by his confinement, His Lordship asked them why they had not petitioned the King and Council, and told them if Mr. Jenkes thought it better to lie in Prison and Complain, than Petition and be Bailed, he might do as he pleased. They told him they had tendered Bail to Mr. Secretary Williamson, who promised them to move the King and Council in it, but when they reminded him of it upon the next Council Day, he was pleased to excuse himself. His Lorshdip told them he never heard they had tendered Bail, but the Writ of Mainprize was forgotten in all his Answers. They then told him, that the General Report was, that the King and Council had referred it to his Lordship, but his Lordship would take no notice of that likewise, but said, the King would advise with the Judges when they came to Town. His Lordship withdrew from them, and they left word with his Secretary, That Mr. Jenkes looked upon himself to be his Lordship's Prisoner. On the _____ of August, Mr. Jenkes' Friends went again to my Lord Chancellors, but his Secretary told them his Lordship could not be spoken with. They prevailed with his Secretary to go up to him and remind his Lordship of his last Answer of advising with the Judges, and tell him that several of the Judges had been in Town, and they did now desire his Lordship's Resolution. The Secretary at his Return told them, that as soon as he began to mention the business, his Lordship fell into a fit of the Stone, but when that was over, he would mention it unto him. About two hours after they returned, and the Secretary being absent, another of his Lordship's servants came to them and told them that his Lordship was not well, and could not be spoken with, but had ordered him to tell them, That Mr. Jenkes might advise with his Counsel what was fit to be done for he was none of his Counsel, and if he would Petition the King and Council he might, and that that was his Answer. On the 11th. of August, being the last Council day that was to be before the 3d. of October, Mr. Jenkes thought fit again to tender Bail to the Council, and that the Lord Chancellor who disowned all knowledge of his doing so before, and the whole Council might know of it, he sent this Letter by his Bail to the Lord Privy Seal, than Precedent of the Council, which was publicly read. My Lord Have been imprisoned since the 28th of June, to my 〈◊〉 great loss charge and prejudice of my health. I have ●●●herto been denied Bail, Habeas Corpus and the Writ of Mainprize, which I am informed, were never before denied to any of his Majesties subjects in the like case; and this only for moving in a lawful Court, and in a quiet and peaceable manner, that which I did believe to be for his Majesty's service, and the good of the City and Kingdom and the preservation of the Protestant Religion, and which I conceive I can make appear to be according to the Laws and Statutes of this Realm, if I am publicly called thereto. Wherefore, I do not beg a discharge, for I desire nothing more than to clear my innocence by a public trial; but since Mr. Murrel, and others, committed to this prison for matters of a far other nature, are daily bailed out, my humble request to your Lordship is, that you would be pleased to move his Majesty, that I as well as any other of his Majesties subjects, may enjoy the benefit of the Laws, and that the Writ of Mainprize may be granted to me, or that my Bail, which now attend, may be taken. Your Lordship will very much oblige. Your Lordship's humble-Servant, FRANCIS JENKES. This Letter was by some improved into a Petition; and when they had given it that name, (though that was the only thing wanting to please the Lord Chancellor, yet it could not procure the acceptance of Bail, but the method proposed by his Lordship proved as ineffectual as those that were demanded of him. The Lord Chancellors resolutions being sufficiently discovered, Mr. Jen●es friends forbore all farther solicitation of his Lordship, and made fresh application to the Lord Chief Justice Rainssord, on August 18th, than just returned from the Circuit. The time of Sessions at the Old Bailey drawing on, They caused two Writs of Habeas Corpus to be made (the common course of removing prisoners from one Goal to another) one, ad deliberandum, directed to the Keeper of the Gatehouse; the other adrecipiendum, directed to the Sheriffs of London, and desired his Lordship to sign them, that Mr. Jenkes might be removed and brought to trial; for that the keeper of the Gatehouse not Kalendering any State prisoner (as he called him) at the Sessions for Westminster, he might lie there all his life time without trial, which no Subject aught to do. His Lordship excused himself upon his late return to Town which had not yet afforded him leisure to advise; and sent them to the Attorney General to know whether he were ready for a Trial, before he would give them any answer. Mr. Attorney upon their coming to him very worthily told them that he had no order in it, but that he would not oppose the granting of those Writs; adding God forbidden but that the Law should have its due course. They returned to the Lord Chief Justice with this answer and offered to make Oath that it was Mr. Attorneyes answer, but he would give credit to nothing but a note under Mr. Attorneys own hand. They told him it was hard that a man shouldly in prison who was willing to bring himself upon trial, that Writts of this nature were every day granted and did presume could not reasonably be denied. His Lordship answered he would know whether ●r. Attorney were ready for a 〈◊〉 ●hey replied that ●●●y did not know when Mr. Attorney would be ready, and 〈◊〉 Mr. Jenkes must stay for his Trial till then, they then mo●●ed his Lordship as they had done formerly, that he would ●rant a Habeas Corpus to bring him before his Lordship, and ●hat he would accept of substantial Citizens for Bail, who should render him whensoever Mr. Attorney should call for him, alleging that such Writs had been frequently granted by the Lord Chief Justice Keeling, and one of the now Justices of the King's Bench. His Lordship returned, that he did not doubt the Security they should offer him, but he had never granted such a Writ, and he knew not upon what Authority others had done it; and in short, refused to grant either that, or the other Writs. After all these Denials of Right, Mr. Jenkes resolved to sit still, with the satisfaction, that his ill success was not imputable to the Injustice of his Cause, but to the Pleasure or Fear of those that had the Power of making it otherwise: and with patience to expect till the Term should set open the Prison doors, which will not brook the denial of a Habeas Corpus, though a long Vacation must. No further Address was therefore made to either of their Lordships, but themselves, after they had taken the pleasure of denying him, were pleased to condescend to Intercede for him. For, as we received by very credible information, the Lord Chief Justice went to the Lord Chancellor; and told him, that the Writs demanded of ●i● were according to Law, and could not be denied, and that he had only taken time till he had acquainted his Lordship with it. The Lord Chancellor directed him to the Lord Treasurer for further advice, who sent him to the King. As soon as his Majesty understood that what was demanded was the Subjects Right, he immediately commanded that the Laws should have their due Course, which their Lordships had stopped.