AN ACCOUNT At Large of the RIGHT HONOURABLE THE Earl of Danby's ARGUMENTS At the COURT of KING'S-BENCH AT WESTMINSTER, Upon his Lordship's Motion for BAIL, The 27th. day of May, Term. Pasch. 1682.  
Together with the JUDGE'S ANSWERS AND THE EARL'S REPLIES, As they were then Truly taken.  
LONDON, Printed for Charles Mearue, 1682.   

AN ACCOUNT At Large of the Earl of Danby's ARGUMENTS At the Court of KING'S-BENCH, Upon his Lordship's Motion for BAIL, The 27th. day of May, Term. Pasch. 1682, etc.  
IMmediately after his Lordship was in Court, the return of the Habeas Corpus was read, and Mr. Sanders (of Council for his Lordship) did move the Court, That whereas in Easter Term 1681, the Court had dismissed his Lordship with a Declaration that they would take into their Consideration till the Term following, what answer they would make to what had then been said to them by his Lordship and his Council; he therefore moved, That they might now accordingly know the pleasure of the Court, and that they would be pleased to grant Bail to the Earl of Danby.  
But before the said Mr. Sanders could well have pronounced the foregoing words, the Lord Chief Justice Pemberton did reprimand the said Mr. Sanders for having offered to impose upon the Court what had never been said by them, saying, that there was no such thing as their having said at any time that they would take the Earl of Danby's Case into farther consideration; for that they had told my Lord of Danby the last time, that it was not in their power to give him any Relief at all, and that he therefore wondered, and must extremely blame Mr. Sanders for moving the Court again in a matter to which they had already given such a positive Answer, and could not but admire, that he should so misinform his Client, as to give him any such advice, which could only be to the giving both him and the Court an unnecessary trouble.  
To all which Mr. Sanders replied, that he humbly begged his Lordship's pardon if he had mistaken him, for that truly he did understand that his Lordship had declared that he would take time to consider of my Lord of Danby's Case till the following Term; but that if it was a mistake, he must beg his Lordship's pardon, and did believe the rest of his Brethren took it so, as well as himself.  
The Earl of Danby then spoke himself for about two hours, and said to the Lord Chief Justice, that he met with an Objection which he did not expect, and that he must beg his Lordship's pardon not to let that pass for a mistake which his Council had affirmed, of the Courts having taken time to consider of his Case, till the next Term after that of his Lordship's being last there; for that his Lordship did therein appeal both to the rest of the Judges which were upon the Bench with him, and to all other persons whatsoever who were then in Court, whether his Lordship had not said that if he (meaning the Earl of Danby) pleased, they would take time to consider of his Case till the next Term; and he did declare upon his Honour that those words had been pronounced to him by my Lord Chief Justice himself, and that he did then accept it as a favour from the Court, and did return his humble thanks to them for it: In so much that his Lordship said, that he confessed he was very much surprised to meet with such an Introduction at the first entrance into a matter which he conceived to be of so great weight as he doubted not but he should make this Case of his appear to be.  
But yet that it did give him reason to believe that he came with some prejudice before his Lordship, and that they were so much prepossessed in this matter, that if he did not think every Man in England would find that he might be concerned in what resolution should be given in this Case, as well as himself, he should scarcely have ventured upon it, though he had lain so long under so unreasonable a Confinement as he took himself to do; and therefore he must desire their Lordship's patience and attention to what he had to offer in his own behalf, and (as he believed) in the behalf of the Liberty of the Subject in general.  
His Lordship directing himself to the Lord Chief Justice, said, It was just now a year since he was before his Lordship in this Court, and that he was assured, that his Lordship did then please to tell him that they would take time to the following Term to consider of what they should thank fit to do in his Lordship's Case; But he said, that care was then taken the first day of that following Term to prevent his coming there, by an Indictment which was brought against him (ready and dried, as he had been told) for his being privy to the Murder of Sir Edmundbury Godfrey.  
He said he did not wonder at it, Because there was nothing so black, which had not been Invented to be said against him, but he confessed he did wonder to hear, that such an Evidence of an Irish Papist (who was upon Trial for his own Life, and upon an hear-say only) should be believed against an English Protestant, by a Jury of English men, and some of them Gentlemen; but yet that that wonder had been much abated, when he heard that the same Foreman had been as favourable in the Case of a Notorious Murder, as he had been ready to find that Murder against him, which had not the least probability in it, and which no man could think of with more Detestation both of the Fact, and of any Man that could have an hand in it, than himself.  
However, this prevented him from coming there again till after notice had been given to Sir Edmundbury Godfrey's Brothers, to know if they had any thing further to say against him on that matter, and that he could get himself Discharged from that Indictment, and as to the wretch himself Fitz Harris (who had accused him) he did two days before his Death, send the Minister of the Tower to his Lordship, to beg of him, that before he died, his Lordship would forgive him his having sworn falsely against him; and he did confess, that he was put upon it to save his own Life, and did say by whom he was prompted to it; and whether it proceeded from those Men, who might think their Villainies discovered, and so might fear they could no way be safe but by putting that matter yet farther against him, or from what other Cause his Lordship could not tell, but (if his Lordship was not misinformed) he did hear that some Men were still endeavouring to get something more of the same nature to be sworn against him, if they can contrive how to make their forged Testimonies to agree about it.  
He said he thought that time would have tired out the malice of such Bloodsuckers before now whom he had found so busy, for the first year and half after his Imprisonment, that he was not a Week without Endeavours used by strange People to get to speak with him, and such as he had reason often to suspect to be Knights of the Post; amongst whom the story of one Magrath (another Irish Man) he said, was notably remarkable in his endeavour (under pretence of kindness) to have made him their Tool to prove that Sir Edmundbury Godfrey had killed himself; but he said he had the good fortune immediately to detect that Villainy, as he hoped yet to live to do of some others; but that in the mean time he foresaw, that he was always to be a particular Object of the malice of such men, so long as he was left under this Confinement, from which he saw no hopes to be relieved but by that Court, where the Law Directs every English man to come for Justice, that is oppressed in his Liberty.  
He said he hoped his Lordship would forgive him for having been a little tedious on that Subject of Sir Edmundbury Godfrey, because his Reputation had been so much Exposed in that particular, and before that Court.  
After his discharge from that Indictment, he said there seemed to be a probability of the Call of a Parliament in some short time, and whenever he could give himself the least hopes of that, he resolved to trouble no other place; But that now he had not the least prospect of that kind, and that he had been a Prisoner above three years, and yet could safely swear, he was without the knowledge to that day, for what real Crimes he was Committed; only he knew that the name of Treason had been laid to his Charge, without saying wherein the Treason consisted.  
He said he came therefore now to that Court (as the only proper place for all Persons to resort to for their Liberty) and he was sorry, that he was put to the great disadvantage of speaking in his own Cause, but because he saw the last time he was there, that some fault seemed to be found with his Councils, for urging things which seemed to relate to matters of Parliament (although upon a due consideration of his request there is nothing in it which does touch their Jurisdiction) he had chosen rather to rely upon the Courts pardoning his defects, than put any further hardships upon those Gentlemen who had been his Council, to whom he had been more beholden, than they had been to him; for that they had undergone some unheard-of rebukes already in another place, for offering to be of Council with him (though in matters of Law) which he believed had never been heard of but in his Case, and he hoped that (when all his Circumstances shall have been well considered) he shall be the last English man that will ever have so many hardships put upon him, as will appear to be through every part of his Case.  
In the first place he said, that he had been both Accused and Committed, without any Oath or Affidavit made against him, for any Crime whatever; Which had been in the Case of no other Lord but himself, and he did believe of no other Man.  
Secondly, That there was no particular Treason mentioned in the Articles against him, only the word TRAITOROUSLY had been applied to things which were not Treason, if they had been true (as was then declared by Sir William Jones the King's Attorney) and he said, there were good store of Witnesses to prove, that when it could not be maintained by Argument in the House of Commons, that any of the Crimes mentioned against him were Treason; It was answered by one of the long Robe there, (who would not have spared to have assigned the Treason, had there been any) that however they ought to give the title of High-Treason to the Articles, for that otherwise they would dwindle to nothing when they came into the House of Peers. Now in the Impeachments of the other Lords (not to meddle with the Truth or Falsity of their Accusers) they were Charged with the highest Treasons in Name, and upon Oaths made against them.  
Thirdly, When a short day was set by the Lords for his being heard, and that he appeared that day accordingly, his Council was then Threatened if they did dare to plead matter of Law for him: Which he said was never heard of before in any Man's Case whatever, nor in the worst of times.  
Fourthly, He said if all the Articles had been true against him, and had been Treason; he had his Majesty's Pardon (which he then shown to the Court, and demanded the benefit of it) saying, that that did pardon both his Crimes (if he were Guilty of any) and his Imprisonment, and yet, that both that Pardon and he, had been Prisoners together for above three years (of which he said he durst confidently affirm, that his was the first Precedent since the Conquest.  
Fifthly, He set forth that he had not only his Majesty's Pardon, but that there had been his Majesty's Declaration of it in his Speech to his two Houses of Parliament, together with a Declaration of his Innocency, and a Declaration that he would give him his Pardon ten times over, if that were defective either in matter or form. And in this also he said that his Case was not only particular from any others, but that such Declarations of the King's Intentions to Pardon (although the formal Pardons have not been obtained) have heretofore been alone a ground to procure Bail at least, when the Party has been the King's Prisoner and at the King's Suit, which he supposed was not doubted in his Case.  
Sixthly, He said that he had not only been thus Committed, and thus detained for above 40 Months, but he had been kept a Prisoner without any prosecution for the greatest part of that time; which is another sufficient ground by the Law for Bail: But instead of a restraint Ad Custodiam, he said he had undergone punishments greater than the Crimes alleged against him could have deserved, if they had been true; both by the length of his Imprisonment (which was agreed to be a sufficient Ground for Bail, both by the King's Council and the Prisoner's, in the Arguments on the Grand Habeas Corpus 3ᵒ Car. as also in Melvin's Case, 1ᵒ Car. and in Sir Tho. Darnell's and other Cases.  
By the Inconvenience of his Accommodations in the Prison, for above two years and a half of the time.  
By two most dangerous Sicknesses in the Prison. And  
By the loss of divers of his Family since his being in Prison, who would some of them most certainly not have been in those places where they have been lost, had he been at liberty.  
He said he was informed, that his Majesty had been again pleased to give his Directions to Mr. Attorney, to give his Consent a second time to his Bail, and he did beg leave to ask Mr. Attorney if it were so? Whereupon Mr. Attorney did stand up, and say, that he had his Majesty's Directions to give his Majesty's Consent again to his Lordship's being Bailed.  
His Lordship did thereupon say, that this also was particular in his Case; and he did believe, there was scarce a Precedent in the World, of the King's Prisoner, and at the King's Suit, not being Bailed when there hath been the King's Consent to it; unless where the Prisoner hath not been able to find sufficient Security for his Appearance to abide his Trial. For that the two only Justifiable Grounds for the Continuance of Restraint by the Law are, either for keeping the Party from being able to do any harm by his being at Liberty, (of which the King is the best Judge) or for securing the Party to abide the Judgement of the Law, (in which the Court ought to have good satisfaction) and so they might have sufficiently in his Case.  
He said, that the Precedent would be no less strange and new against the King, than against himself, if they should not permit him to be Bailed under such Circumstances: For he had heard, that the Law did admit of no Absurdity; Now he did desire to know, how any thing could in reason be more absurd on behalf of the King, than if the King's Prisoner and at the King's Suit, should be kept in Prison by any of the King's Courts, against the King's Will?  
Or how said he can any thing be more dangerous to the Subject, or be a plainer failure of Justice (whatever may be pretended to the contrary) than to say, that there can be any such restraint of English liberty, as cannot obtain so much as Bail, but by the leave of the House of Lords? When that House can neither meet but when the King pleases, nor can never sit longer than he pleases: So that to say a Man shall be a close Prisoner (I mean by that a Prisoner without Bail, for Bail itself is Imprisonment in the Eye of the Law) till he shall be discharged by the House of Lords; is to say, that a man shall be a Prisoner during the King's pleasure; which was the Great Grievance complained of, when the Petition of Right was granted, and that was thought to have fully and for ever Redressed that Grievance.  
But if after so many heats and disputes which our Ancestors have had with the Crown about their Liberties, this Doctrine should now be admitted for Law; We would seem to endeavour, (as much as in us lies) to bring it to this Conclusion, and be our own Felo's De se; That the King shall have a way found out by ourselves, and without his seeking how he may Imprison any Man, or number of Men when he pleases in a Parliamentary way; and by Dissolving that Parliament, he may keep them as long as he pleases in a Prison without remedy: But that he shall neither have power to Relieve us himself by his own Authority, nor by his Courts of Justice. So as in short by this Doctrine; The King should only have power to hurt his Subjects as much and as long as he pleases, but should not be able to do them any Right if he would; and then we shall have Magna Charta and the Petition of Right Reverssed, instead of receiving that benefit by them, which the Kings of England have been so Gracious as to give us, and all the Learned Writers upon those happy Laws of Liberty have told us we are secure under, at all times, and against all Accidents whatever.  
He then begged leave to observe to his Lordship what he found in my Lord Chief Justice Coke's Comments upon Magna Charta, who said, that the words Nulli Vendemus, Nulli Negabimus, aut Differemus Justitiam vel Rectum, are spoken in the Person of the King, who (in Judgement of Law) is always present, and repeating the said words in all his Courts of Justice.  
And therefore (says he) every Subject in the Realm may at all times have remedy by the course of the Law, and may have Justice done Freely, fully, and Speedily, without delay, for that Delay is a Sort of Denial.  
The said Lord Coke observes further, that those words of Magna Charta are fully Expounded by latter Statutes (viz.) 20 E. 3. etc. which do direct, that there shall be no delay nor hindrance of speedy Justice to any man, neither by any Seal, nor by any Order, nor any Writ whatsoever; neither from the King, nor from any other, nor by any other Cause.  
Now whatever may be said out of other Considerations, he said no Man can deny, but that there is great delay of Justice (to say no worse of it) to any Man who (through no neglect of his own) can neither get Trial nor Bail in above three years, although his Crimes were never so great: And he said he durst be confident, that the Makers of Magna Charta did believe they had secured all English Men from ever being under the possibility of such a Danger; and that he made no question at all, but that by Law we are so.  
He said, that the said Lord Coke does say in his Comment upon the 15 th'. W. 1 o. (where he speaks of what things are Bailable, and what are not, and names Treason amongst the things not Bailable) that is (says he) such offences shall not be Replevied by the Sheriff, but all or any of these he saith may be Bailed in the King's-Bench.  
And he said he had also some of the present Judges opinions to show, in this point, which he desired to Read out of a Copy of the Lords Journal, (viz.) 23d. Decem. 1678, the Question being put, whether the Lord Treasurer should withdraw, 'twas carried in the Negative; and on the 27th. of the said December, the Question being put, whether the Earl of Danby Lord High Treasurer (who stands Impeached by the House of Commons) should be Committed? It was Resolved in the Negative.  
And it was the same day proposed to the Judges, whether the Judges can Bail any Person in Case of Misprission of Treason, wherein the King's life is concerned?  
To which Sir William Scroggs (Lord Chief Justice of the King's-Bench) Sir Francis North (Lord Chief Justice of the Court of Common-Pleas) Justice Windham, Justice Jones, and other of the Judges then present, gave severally their Opinions; that the Court of King's- Bench may take Bail for High-Treason of any kind, if they see cause.  
He cited the Lord Coke also in his Comment on the 24 th'. W. 2 o. where he says, that it is a Rule in Law, Quod Curia Regis non debet Deficere Conquerentibus in Justitia Exhibenda. And the reason of this is, that a failure of Justice may be prevented, which he frequently says, is Abhorred by the Law: So as it appears, that The Law Abhors all failure of Justice, and he said, that if such failure do appear in his Case, or any Man's else, no Order can licence such Failure nor no Court can Justify the not giving Relief against it; and he said, he should either make such failure appear, or his Lordship (meaning the Lord Chief Justice) would be able to tell him where he might repair for Justice; which both Magna Charta and the Petition of Right are understood to have provided at all times for the Subjects Liberty: But if his Lordship could not inform him where he might appeal forthwith for his Liberty, in that Case he said, that for that reason alone (were there no other) he ought of right to be admitted to Bail by that Court, till he could be brought before such a Judicature, as had power to discharge him.  
He observed also, that the Lord Coke (in a Chapter on the King's-Bench) did say, that that Court might Bail for any Offence whatsoever, and that in the said Chapter it was particularly observed, that there had been such care taken by the Law to avoid failure of Justice (even in small matters, in comparison of Liberty) that he gives there an Example concerning a Clerk or Officer of that Court: For he takes notice of what things, and against whom, that Court hath power to hold Plea by Bill; And amongst those, he names against any Officer or Clerk of that Court, and gives the reason; because if they should be Sued in any other Court, they would have the Privilege of that Court, which might be the cause of a failure of Justice; and from this his Lordship said it did appear, that the Law intended, that there should be no failure of Justice by the privilege of any Court, how great soever it was; for that (as was said before) the Law did abhor all failure of Justice: And he said, if such care had been taken against a failure, in such small matters, and not in what concern our Liberties, all English men ought Justly to break out into the like Exclamations, as the same Lord Coke and many others did, in their Speeches in Parliament, and in their Plead, 3ᵒ & 5ᵒ Car. upon the Arguments of the Grand Habeas Corpus at that time where the Lord Coke breaks forth into this Expression; Shall I have an Estate of Inheritance for life or for years in my Land? And shall I be Tenant at Will for my liberty? Shall I have property in my Goods by the Laws? And not liberty in my Person? And thereupon he tells us, That Perspicuè vera non sunt probanda: As taking from granted, that our liberties were not to be doubted where our properties were so secured: And the King (says he) had distributed his Judicial power to Courts, and to his Ministers of Justice; Who are to see right done.  
And he said the Lord Cook gave the Reasons of those Laws which are against undue Imprisonments, and that one of those is, for the indefiniteness of time, which he says may be perpetual during Life, and that his words are, That it is unreasonable to think, that a Man has a Remedy for his Horse or Cattle, (if detained) and none for his Body Indefinitely Imprisoned: For that a Prison without any prefixed time is a kind of Hell.  
And here his Lordship said, that he hoped the Court would either allow him Bail, or tell him a prefixed time, when he should be Tried or Discharged: he did then also Quote the Case of the Duke of Suffolk, 28 H. 6, and the opinions of Prescot and Fortescue, (who were eminent Judges) who said, that he ought not to be Committed, (though for Treason) without Especial Cause of the Treason shown, which had not been in his Case.  
He further said, That many other Principal Gentlemen of that Parliament had spoke most sensibly on the same Subject of Liberty, and amongst the rest, Sir Robert Philip's had said, To have our Liberties (which are the Souls of our Lives) taken from us, and to be penned up in Goals without Remedy by Law, and this to be so adjudged, (for so that Court had then thought sit to deny Bail, for Reasons which were at that time also best known to themselves) he cries out, Oh improvident Ancestors! Oh unwise Forefathers! to be so curious in providing for the quiet possession of our Lands, and to neglect our Persons and Bedies! And to let them lie in Prisons! And without Remedy, durante bene placito! If this be Law, what do we talk of our Liberties? This (says he) is Summa Totalis of all Miseries.  
He said also, That Mr. Selden did in the same Parliament argue at a Conference with the Lords, That in all Cases where any Right or Liberty belongs to the Subject, by any Positive Law, written or unwritten; if there were not also a Remedy by Law, for enjoying or regaining of this Right of Liberty, when it is violated, or taken from him; the Positive Law were most vain, and to no purpose; and it were to no purpose for any Man to have any Right in Land, Liberty, or other Inheritance, if there were not a known Remedy, by which in some Court of ORDINART JUSTICE he might recover it; and in this Case of Right of Liberty of Person, if there were not a Remedy in the Law for regaining it, when it is restrained; it were to no purpose to speak of Laws.  
Here the desired leave to show his Lordship what Sir Nicholas Hid (when sitting as Lord Chief Justice in that Court) did say on this occasion, viz. That the King's pleasure is, his Law should take place and be Executed; and for that do we sit here; and whether the Commitment be by the King, or others, This Court is the place where the King doth sit in Person to do Right if Injury be done, and if it appear that any Man hath Wrong done to him by his Imprisonment; We have Power to Deliver or Discharge him: And he further said, That the same Lord Justice, Doderidg, Jones, and Whitlock, (Answering the Prisoner's Council at that time) did say, the Attorney General had told them, That the King had done it, and that they (the Judges) do ever trust him in great Matters; and here he took occasion to say, That he hoped that the King's Consent to his Bail, and his Declaration of his Innocency, would be now as much trusted in this Court.  
He Cited also the Arguments of Mr. Calthorpe for Sir John Corbet on the same occasion, who said, That admit the Commitment were lawful, yet when a Man hath continued in Prison a reasonable time, he ought to be brought to Answer, and not to be continued still in Prison; for that it appears by the Books of our Laws, that Liberty is a thing so favoured by the Law, that the Law will not suffer the continuance of any Man in Prison, longer than of necessity it must.  
He Cited also Mr. Hackwell, who said upon the same occasion, That the Law admits not the Power of Detaining in Prison at pleasure, when the Imprisonment is but Pro Custodia, for a Man by long Imprisonment might otherways be Punished before his Offence; and he mentioned an Expression of his, That long Imprisonment was vita pejor morte.  
He mentioned, how the Commons at the end of the Parliament, 3 Car. did desire, That the Judges might declare themselves upon the matter, why those Gentlemen had not been Bailed, when (by the Jtdges Arguments) it was possible they might have been kept Prisoners all their Days.  
To which he said Whitlock Answered. First, Not so, but they did Remand them, that they might better advise of the matter, and that the Gentlemen if they had pleased might have had a new Writ of Habeas Corpus when they thought fit. And Secondly, That he had spent much time in this Court, and that in such great Cases he never knew any Man Bailed without the King first consulted in it, and the same he said, was then said by the rest of the Judges of that Court.  
Hereupon he made two Remarks, First, That by this it did appear, that upon Consideration, That Court had altered their opinions in the Case of Bail, just contrary to what their first opinions had been positive in; and Secondly, That the consulting of the King was ever necessary in such Great Cases; and he said, he did believe, that there was not a President, where the King had agreed to the Bail, that ever it had been denied.  
He said, That those Men whom he had Quoted were Men of no ordinary Understanding in the Laws, and as the Judges than did at last acknowledge their sense of them to be right, so he said, He hoped our Laws were neither changed nor diminished, in what related to the SUBJECTS LIBERTIES; and he hoped that no Order of one House, nor Ordinance of both Houses, nor King alone, nor King and either House alone, could alter them; and he rested assured, that a King and Parliament would never alter them to the prejudice of Liberty.  
He proceeded, That if the Law were still the same it was heretofore, it was plain that that Law did both give a power to that Court to Bail for all Offences whatsoever, (and for Treason particularly) and did require, that the Subject should at all times find remedy in it, when his Liberty was Restrained, BY ANY CAUSE WHATEVER.  
The chief Reasons he said, why such large Powers had been given to that Court, were principally for avoiding all failure of Justice, and to the end, First, That the King may both have a means of giving Right to his Subjects at all times, according to his Oath at his Coronation, and according to the intent of Magna Charta, and the Petition of Right: And Secondly, That there might be a constant place for the Subject to resort unto for Remedy at all times, whensoever he was oppressed in his Liberty: And he hoped we were not now to learn a new Law, that the King could neither keep his Oath, nor maintain Magna Charta, nor the Petition of Right, without the Assistance of an Extraordinary Court, which he may both choose, whether he will call, or when he will call it, and how long it shall sit; which (as he had said) would put all under the King's absolute Will.  
He then said, He took for Granted, that there would be no dispute made in this matter, but that there was an Order of the Lords which was supposed to stand in the way: But he said, If his Lordship would give him leave, he would first say something to the Order itself, and then he hoped to show his Lordship, that it stood not at all in the way as to his Request of Bail; and that it should neither be interfered with in the least, nor the Jurisdiction of the Lords, nor their Proceed meddled with in any kind by his being Bailed; but rather owned, and submitted to, by his being Bailed to the Parliament.  
And first for the Order itself, He desired the Court to observe, that it was Dated the 19th of March, 1678. and worded as followeth, (viz.)  

Die Mercurii, 19 no Martii, 1678/9.  
THE House this Day taking into Consideration the Report made from the Lords Committee for Privileges, that in Pursuance of the Order of the 17th Instant to them directed, for considering whether Petitions of Appeal which were presented to this House in the last Parliament, be still in force to be proceeded on; and for considering of the State of Impeachments brought up from the House of Commons the last Parliament; and all the Incidents relating thereunto; upon which the Lords Committees were of opinion, That in all Cases of Appeals, and Writs of Error, they continue, and are to be proceeded on in Statu quo, as they stood at the Dissolution of the last Parliament, without beginning De novo. And that the Dissolution of the last Parliament doth not alter the State of the Impeachments brought up by the Commons in that Parliament.   
Now upon this Order he observed, That it related as well to Appeals and Writs of Error, as to Impeachments; and seemed to be more fully worded to them, than to Impeachments: The Words STATU QUO, and without beginning DE NOVO being annexed in the Order more particularly to the Appeals and Writs of Error; whereas all that was said as to the Impeachments, he observed to be, that the Dissolution of THAT LAST PARLIAMENT doth not alter the State of Impeachments brought up by the Commons in THAT PARLIAMENT, and are not words which (strictly taken) can bind after the Dissolution of any other than that Parliament.  
But he said, if the Order should be Expounded otherways, yet that both the Law, and the Practice of the Inferior Courts, were undoubtedly contrary, In the Cases of Appeals and Writs of Error. And he hoped no Court would take upon them to Expound the Order so, as if they were at liberty, to split the Order, and to Judge which part of the same Order should be binding and which not, for that that would be to meddle in a more Extraordinary manner with the proceed of the Lords, than he had desired.  
Now as to Writs of Error, he said, there were full Resolutions of the Judges in the Case, though in times of Prorogations only, when a day is set for the Sitting of the Lords House, and he cited the Case of Heydon and Godsalve, in Crooks Reports; as also the Lord Ch. Just. Hales, who did not only grant Execution upon a Writ of Error (depending in Parliament) but did also Answer the Defendants Council (who would have pleaded the Lords Order in bar of the Execution) that he should always pay all due Respect to that Superior Court of the Lords, but that he must act according to Law, and that he knew, that the Lords did not intent otherwise. And of this Lord Ch. Just. Pemberton himself, who he said had denied Restitution upon an Execution lately taken out, in a Case where a Writ of Error was and is still Depending in Parliament. And in Cases of Appeals, he said he was Informed, that the Court of Chancery did not take any notice of the Appeal being in Parliament after a Dissolution, but did notwithstanding proceed to Sequestration. And he said that there was a late Precedent in the Court of Exchequer, in the Case of one Fountain, where an Appeal was brought from a Decree in the Exchequer, and Recognizance entered into by the said Fountain, to abide the Order of the House of Lords, and after the Parliament was Dissolved, the Council of the said Fountain did Insist on the said Order before the Barons, that the House being possessed of Mr. Fountain's Cause, and Security having been given by him to abide the Order of the House, that no Proceed ought to be had in the Exchequer upon the said Decree, until the matter on the Appeal was determined before the Lords. Notwithstanding which, and that Mr. Fountain produced the Lords Order in Court, and produced the security allowed, yet the now Barons Declared and Ordered, that the Decree by them made should be proceeded on against the said Fountain in the Court of Exchequer: And a proceeding hath been had accordingly.  
By all which he Observed, That the Inferior Courts did proceed upon matters forbidden as much by the House of Lords, in the matters of Appeals and Writs of Error, as it was upon Impeachments, and yet that the reason was plain why they did so, for that the Parliament might proceed again upon the same Appeals, and Writs of Errors, notwithstanding those proceed in the Inferior Courts, in the interval of Parliaments; for that none of those Acts of the Inferior Courts, does so hinder the proceed of the Superior, but that the Plaintiff in Parliament may revive the same matter there again, by Scire Facias, or by Re-summons, etc. But he said, It was never heard of, that the Lords themselves did proceed again Ex Officio, without the Petition of the Party to revive the Cause: And so he said in the Case of Impeachments, that the Lords would no more proceed Ex Officio upon that neither, unless they were called upon by the Prosecutors, and then their Lordship's proceed upon the Impeachment would be no more hindered by the Bailing of him in the Inferior Court, than they were in the other Cases by the Executions and Sequestrations which are Granted in the intervals of Parliament, which were for the the prevention both of DELAY and of FAILURE of JUSTICE.  
Besides he said, If this should not be done, how could it be known, whether the Prosecutors of an Impeachment from the House of Commons (who are never the same Men in a new Parliament,) will proceed any more upon a former Impeachment? For he said it had many times fallen out otherwise, and he Cited a late Case of the Lord Mordant, who was Impeached upon Articles in one Session, and having taken out a Pardon during the Prorogation, was never more called upon, nor never questioned upon the former Impeachment; although the very same Parliament sat again, which had Impeached him, and therefore he said, That the Case might more probably happen to fall out so, when a new Parliament should meet again, which would consist of new Men.  
He said, It was likewise to be Observed, that although the Transcript of the Record in a Writ of Error might have Days of continuance, yet no Supersedeas is grantable; and he said, That if the Lords Order be no ground for a Supersedeas on a Writ of Error, why the lying of an Impeachment should be a ground for Confining a Man within Four Walls all his Life, he was sure must be both less reasonable and less just, As Liberty was more valluable than Property, and without which, Property could be of no comfort.  
In the next place he Observed, That if the Order should be continued literally to mean, that the Impeachments as well as the Appeals and Writs of Error (and the Incidents relating to all of them) should remain in the same State they were at the Dissolution of THAT PARLIAMENT mentioned in the said Order, his case thereupon he said would be quite different from any others, for that he was not under any Commitment at the Dissolution of THAT PARLIAMENT, nor at the time when THAT ORDER was made, but was then at liberty to be a sitting Member of that House, and by a Vote of the House, had leave to continue so, for that (as he had already Observed) the Date of the Order was the 19th of March, 1678. and the Warrant of his Commitment did appear by the return before the Court to be, the 16th of April following: Insomuch that he desired the Court to take notice, that the strict Letter of the words Statu Quo in the Order (compared with the time when the said Order was made) would be an Argument to set him in a State of Liberty as he then was.  
He then told the Court, That by what he had said, he hoped he had made appear, that the Order did not afford the least shadow for the hindering of his being Bailed; but that on the contrary, the Reasons were much stronger for the doing of that, (as it related not only to him, but to the Liberty of the Subject in General) then for the proceed which the Inferior Courts do daily practice upon Appeals and Writs of Error, (which are but for Property) and are comprised in the same Order, and therefore he said, That he hoped he should at least find the same favour in a Case of Liberty, which is allowed every day in Cases of lesser Moment.  
He then said, (that although it did not concern his particular Case) Yet for the sake of English Liberty itself, he could not but say something further upon this point; for he could not but be of opinion, That if the Order had directly forbid Bail, which it was far from doing) and besides, the Lords own practice had showed their meaning to the contrary, by the Bailing of a Commonnor, whose Crimes were declared to be greater than his, and in which Case they made not Non Obstante to their Order, but take that to be still in the same force towards him, as towards any others who are in Custody) yet he said, In that Case, if such an Order should be found to be against Magna Charta, and the Fundamental Right of the Liberty of the Subject, (as any thing must be which does Subject any Man to an INDEFINITE IMPRISONMENT:) he conceived that of Right, that Court ought to free any Man from such a Slavery, (for he said, he could give it no better a name) and he then Cited an Argument of the Earl of Shaftsburyes upon that point, which that Lord argued in that Court upon an Habeas Corpus, when the Court agreed they would have Bailed him, had it not been in a time of an Adjournment only of the Parliament; his words he said, were, That this Court will and aught to Judge AN ACT OF PARLIAMENT VOID, if it be against MAGNA CHARTA, and more might it Judge of AN ORDER OF THE HOUSE OF LORDS, that is put in Execution to deprive any Subject of his LIBERTY; and as he said, this could not be denied to be Law, so he was confident the Earl of Shaftbury was still of the same mind, and so must every Lord in England be, or (when they consider their own Cases) they would make their Liberties to be very precarious.  
He proceeded to say, That the Earl of Shaftsbury being allowed to be a knowing Man, both in the Laws, Orders and Constitutions of Parliaments; he would beg leave to Quote another part of the same Speech, (viz.) That Mr. Attorney, (which was then Sir William Jones) was pleased to Answer the Instance of one of his Lordship's Council, That if a great Minister should be Committed, he hath the Cure of a Pardon, a Prorogation, or a Dissolution, but (says the Earl) If the Case should be put, why Forty Members, or a greater number, may not as well be taken without any Remedy of any of the King's Courts; his Lordship said, That Mr. Attorney-could not very easily Answer; and if in this Case (says he) there can be no relief, no Man can foresee what may be hereafter: And in another place of the same speech, he says, He does not think it a kindness to the Lords to make them Absolute, and above the Law, for so it must be, if it be Adjudged, that they may Commit a Man to an INDEFINITE IMPRISONMENT.  
He said, He took these Men whom he had named, for no small Authorities in this Age, and the Earl of Shaftsbury, he said, was a Man still as much for the maintaining of this Order as ever, but that his Lordship did show himself at the same time to be for English Liberty, and he plainly showed his own Sense, both of this, and of all Orders whatever, which concerned the Liberty of the Subject, and declared, that he took that Court to be the proper Judge of all such Orders.  
He said, It thereby appeared, how sensible that Lord was, that such Cases might concern Forty as well as One, and Members of either House, as well as other Men, and without relief, if it should be admitted, that ORDINART COURTS could not relieve; and the Earl of Danby said, That there was no Answering of these Arguments of the Earl of Shaftsbury, unless it could be denied, That the King can Impeach as well as the Commons, or that the King cannot Call and Dissolve Parliaments at his own Will and Pleasure: For if he may (as was not to be doubted) he said, He was sure every Man in England was in the same Danger, when the King pleased, and then he saw nothing whereby we had any Security, but that we lived under a King who would not Exercise this Power over us, which we will needs put into his hands, although he does not desire it himself: As if we were so weary of our Liberties, that we would be Industrious in contriving how we might insensibly slide into those Slaveries, which our Ancestors have been some Ages taking pains to secure us from, and our Kings have been so gracious as to Grant and Confirm to us, so many times over as they have done; and which other Kings may be as ready to reassume hereafter, as we are to give them away.  
He concluded his observations upon that Speech of the Earl of Shaftsbury, with taking notice, that his Lordship had showed he was one of those Peers who would take it for no kindness to be made absolute, and above the Law, by such Orders of theirs being construed to extend to INDEFINITE IMPRISONMENTS.  
He then repeated Sir William Jones his Declaration in that Court, that either a Pardon, a Prorogation, or a Dissolution was a Cure against such Imprisonments, and he observed thereupon, that if that Doctrine were true, that any one of those was a Cure against such Imprisonment; (and he could not doubt of its being good Law) then certainly he ought to find relief from his Imprisonment, who had every one of those Cures on his side.  
He then desired to put the Court in mind, how in the worst of times, Justice had taken place so far, as to lay aside the force of Orders made in Parliaments after the Dissolutions of those Parliaments which made them, although it was to the prejudice of the Interest of those Usurpers themselves.  
He cited an Instance of one Sir John Stowel, who by the Articles of Exciter was to have been admitted to composition for his Estate, but yet contrary to those Articles, the Parliament did afterwards order his Estate to be sold. After the Dissolution of which Parliament, Sir John Stowel pleaded by his Council (which were Sergeant Maynard and Mr. Latch) that that Order was Dissolved by the Dissolution of that Parliament; and that therefore the Articles were again in Force; and that the Plea was admitted to be good, and Sir John restored to the benefit of the Articles upon that Plea, even by Bradshaw himself. But he said, he was sorry that he could neither have Sir William Jones to argue those points for him which he had used against my Lord Shaftsbury, nor Sergeant Maynard to make good the Invalidity of Parliamentary Orders after Dissolutions, but he said, that it was not his fault, and he doubted not but he was before more Just Judges than there was in those ill times, and that he hoped that the Liberty of the Subject was not now more Precarious than it was in those days.  
He added, that if upon such Orders Men could not be Bailed in the Interval of Parliaments, they would become Grievances equal to the Multiplications of Treasons in former Days, which have some times been greedily made heretofore by Parliaments in Distempered Times, but the Commons had never been quiet till they could get their Bear chained up and their Laws reduced to the old standard of Treason again; But yet those things had been done by Acts, and not by Orders of Parliament.  
He desired them likewise to remember, that it had been one of the chief grounds of the late War betwixt the King and his Parliament (in which so much blood had been shed) that an Ordinance of Parliament should not be held equal to an Act of Parliament, and yet those were Orders of both Houses: And now said he, shall we be defending, that an Order of one House only, shall be Equivalent to a Law? and shall be in force against our greatest and most sacred Laws of Liberty, which have been so confirmed to us? This, said he, I am not able to understand the reason of, nor will any Man, who shall give himself the least leisure to think upon it.  
He then said, He desired to ask any Man that then heard him, or any Commonor of England, who would but take time to consider this Case, (which may be any Mans in England,) whether they would be contented to invest the Lords with such an Inherent Power over their Liberties, which they can no more be exempted from then the Peers themselves?  
And he said, That the Lords had already made it appear, that they would not have any such Arbitrary Power placed in them, for that they had refused to pass a Favourite Act, (which was for their own Trials) only by reason of a Clause which was Inserted therein, To have Enacted the Substance of this present Order into a Law.  
And he said, That the House of Commons desiring that such a Power might have been Enacted into a Law, (though themselves would have been the first who would have repent such a Law,) did sufficiently denote, That the Commons did not think the Order would be binding in Law after their Dissolution; for otherwise what need was there of a Law? if the Order was in force after Dissolution, without a Law.  
Upon the whole he said, He thought the Distemper of that time had given more weight to the Order, than any thing else, and some of their Lordships on that Bench did know, both in what an heat it had been made, and how it had been since blown upon by the Lords themselves; who he was confident would no more endure to have it Construed in that Sense which now seems to be put upon it, (of Subjecting Men to be under INDEFINITE IMPRISONMENT,) than they will endure themselves to be every Day put in the Stocks.  
As he had said thus much to the Order itself, so he said, He hoped to make appear, That the Courts Bailing of him would not at all Entrench upon the Order, nor meddle with the Jurisdiction of the Lords, nor their Proceed in any kind.  
For that he took it for granted, That what is done by that Court, and the Courts of Chancery and Exchequer, on Appeals and Writs of Error, was understood not to meddle at all with the Jurisdiction nor Proceed of the Lords in those Cases, and that this was just the same, all being alike Subject to the final Determination of the Lords, whenever they pleased to call the Appeal, Writ of Error, or Impeachment, before them, and without any prejudice to their Lordship's Proceed by any of those Acts done by that or the other Courts in the Interval of Parliaments.  
Besides, he said, It had been usual to Bail in that Court to the Justice Seat in Eyre, and yet that that Court could not proceed further.  
He Instanced also, That Courts allowing of the Pardons of Peers, (when pleaded there) and yet that they had no power to proceed to the Trial of a Peer.  
And so he said, There were divers other Instances of that Courts proceeding to such and such degrees of Exercising their power to avoid delays, etc. where the Court had no Jurisdiction to determine the matter.  
Precedents he said were not to be expected, which were exactly fitted to his Case, because he durst be bold to say, there never was such a Case before, (when well considered in all its Circumstances,) nor he hoped never would be again: But he said, That therefore both the King's Power and the People's Liberties would be the more concerned in what Resolution should be given by the Court in this Case of his.  
He said, There were Precedents of Discharging of Men Impeached in Parliament upon the Kings Writ to that Court, Commanding the Proceed to cease, and they have been Discharged accordingly by that Court, without any other Reason given in the Writ, but because the King held the Parties to be Innocent and free from the Crimes Charged against them. As in the Cases of Melton Archbishop of York, and Gravesend Bishop of London, 7 E. 3.  
He mentioned also Hugh Spencer, and Sir Thomas Barkley's being Mainprized to Parliament, and yet that the latter was upon suspicion for the Murder of a King, (viz.) Edward the Second.  
He said, Inferior Courts had Bailed to Parliament about the Pope's Bull, etc. Reg. Writs, 274.  
He said, A single Judge (viz.) Sir Robert Atkins had lately Bailed one for Treason, and another for Murder, and that he did himself hear his Justification of both allowed (as to the Legal part) before the King and Council.  
He said, That Kings had formerly abolished Accusations of Treason, and Instanced a Case of Talbot against Ormond, in the time of H. 6.  
And to show how powerful the bare intention of Kings to Pardon had been heretofore, he Instanced the Case of a man Indicted of Felony, who (without any Council) showed forth a Charter of Pardon to the Court, which was discordant to the Indictment, and also to his name, and yet because the Court perceived that it was the King's Intention he should be pardoned, he was Remanded to get a better Pardon. 26 Ass. p. 46.  
And he did thereupon say, That he hoped the King's Intention of Pardon as to him, had been sufficiently declared to the whole Kingdom.  
And in short he said, that if the matter was proper for the Jurisdiction of that Court, before it was in Parliament; it's having been there, did not take away the Jurisdiction from a Competent Court, when the Extraordinary Jurisdiction fails; which was not to be supposed could lay all other Jurisdictions asleep, when itself was not in being; and especially when that Competent Court should do nothing in Contradiction to the Proceed of the Extraordinary Court, as he hoped he had made appear, that that Court would not do by the bailing of him.  
Whereas on the contrary, he said it was most evident, that Justice did fail in the highest concern (which is that of men's Liberties) unless he could be informed when and where he might certainly be either Tried or discharged, for that (as he had said before) it was agreed both by the Council for the King, and the Council for the Prisoners, in the Arguments on the Grand Habeas Corpus; that INDEFINITE IMPRISONMENT was held to be PERPETVAL IMPRISONMENT which the Law did admit in no Case where the Imprisonment was only AD CUSTODIAM. And although his had been intended but AD CUSTODIAM, yet it could not be denied, but it had already been ad Gravem paenam, and without any particular Cause yet showed for which he ought not to be Bailed by Law.  
He then said, that Littleton had declared in his Arguments 5 Car. That if Treason in General should be held to be a sufficient Return, yet that the Kings-Bench might Bail: And the said Littleton and the King's Attorney in their Arguments (one for the King, and the other for Mr. Selden) did agree, that where the Party could not avoid the Judgement of the Law, nor that there was no Danger by his being at liberty, He ought to be Bailed after long Imprisonment, and at that time, six Months was taken to be long Imprisonment.  
He said he had read a passage in the Lord Coke Institutes, where he spoke of such Imprisonments as he compared to the Imprisonment of St. Paul by the Centurion, who first put him in Chains, and then enquired who he was and what he had done.  
He said he would not compare his case to that; but that there was so much of resemblance in it, that he had been in Chains (or what was there meant by Chains (which was a Prison) for above three years, on a pretence of Treason, without being told to that day what kind of Treason he had committed; which had been done in no bodies Case but his, and by so much the greater was his hardship.  
He had also both been Accused and Committed without any Oath made against him.  
When a Day had been appointed for his hearing, his Council had been forbid to Plead matter of Law for him.  
It had been acknowledged that there was no Treason contained in any of the Articles against him, if they were all true.  
And if they had been true, and had amounted to Treason, he had there showed the Kings Pardon, which did release both the Crimes and the Imprisonment.  
That besides that Pardon, he had had his Majesty's Declaration in full Parliament, both of his Innocence, and that he would Grant him his Pardon ten times over if this were defective.  
That he had now had his Majesty's Consent to his Bail, a second time, Declared to that Court by the Attorney General, by the King's Direction.  
That in all these foregoing Particulars, his Case was singular, and different from all others, who are or have been made Prisoners since the beginning of the late Plot, or (as he believed) at any other time.  
Besides these things which are peculiar to his own Case, he said that these was also what was Common to other Cases as well as his.  
The length of his Imprisonment, which had been above 40 Months.  
The being Confined so long under pretence (as he conceived) of an Order of the House of Lords which neither Directs nor Implies any thing to forbid Bayl. But in that also he had what was particular to himself (which he had already said, and desired leave to repeat, because it would deserve their Consideration) viz. That he was at liberty, and had leave to be a sitting Member in the House of Lords at the time when that Order did declare that the Impeachments, Appeals, etc. and the Incidents belonging to them should stand in STATV QVO, so that (as it already observed) the STATUS QVO (as to him) he again said was to put him into a State of Liberty.  
Lastly he said, that he had no prospect now when any Parliament would sit, and by the examples of past Parliaments he might reasonably fear, whether when they did meet, they might sit so long as to give him Relief; for that his Petition had been Read the first Day that the last Parliament entered upon any public business, or whether greater business of the Kingdom might not (as it had done already) so take up their time, as not to give them leisure to consider the Case of a single Person: And since this had already fallen out to be his misfortune in Three Parliaments successively, he took it to be but too plain a Demonstration of his lying under an Indefinite Imprisonment, unless he should find relief in that Court, for that there was no other to Appeal unto.  
He said, That in those Great and Eminent Cases which fell out 3 & 5 Car. about the bailing of Persons Committed to Indefinite Imprisonment, the Judges were then very positive against their Bail, and yet changed those Opinions afterwards; and so he hoped that Court might do upon a due consideration of his Case and Circumstances; or else he hoped that his Lordship would convince him, that his Imprisonment was not Indefinite, by letting him know at what prefixed time, and where he might resort for remedy, which the Law does without question allow to all men, and at all times.  
He said he was a very reasonable man, and when he was convinced by reason (upon which he was sure all Laws were founded) he could be content to suffer still, though his Imprisonment had been so long already; for that however he may have been Misrepresented for an Arbitrary Man, he would rather perish in his Prison than have any thing done for him which the Law would not warrant: But on the other side, he should be sorry that his Case should be made a Precedent against Law, and against English Liberty, which he was sure it would be, if he should be continued to lie under an Indefinite Imprisonment without being bailed; and he said he was not ashamed to say, in the behalf of all English men's Liberties, as well as of his own Case; That it was a Case which did concern every man to take care of in the Consequences of it, and which did cry loudly for Relief.  
He then told the Court, That he had troubled them long, but that he hoped it would be excused in a Case of that moment: And in the first place he said, he hoped it was plain, that That Court had it in their power to grant him Relief if they pleased.  
That it was as plain, that there was nothing in the Lord's Order against it, and that the practice of the Lords had been otherways, even in the behalf of Commoners.  
That it was apparent, that both that Court, and the Courts of Chancery and Exchequer, do relieve upon Appeals and Writs of Error, which are in the same Order with the Impeachments, and yet do in no sort meddle with the Judicature or Proceed of the House of Lords.  
That it was manifest, that let the Order be construed as any man pleases, yet that Bailing could be no sort of Judging of any Proceed in the Superior Court, but would leave the Judgement entirely to the Parliament, and would continue him a Prisoner in Law, bound to appear before that Extraordinary Court, whenever his Majesty should be pleased to call it; and he said it was more evident, that otherwise he was an Indefinite Prisoner, and at the King's Will only for his Liberty, the Consequences of which every man ought to lay to his heart with a dread of it, whenever they should live under a Prince that might not be so merciful as our present King, and he hoped the Court would duly consider it.  
Besides all this he said, he durst confidently affirm, That there was not a Precedent since the Conquest, of any man's being refused Bail under such Circumstances as his were: Whereas he said, the detaining of men under long Imprisonment, ought either to have express Law for it, or a good number of Precedents, and in good times to justify it, and not any single Instance or two (if they could be produced) which he thought they could not.  
And he hoped that Precedent which he had already mentioned on his Majesty's behalf, would be very well considered, which was; How the King's Court should keep the King's Prisoner, and at the King's Suit, in the King's Prison, with the King's Pardon, and against the King's Will, twice declared in that Court, by his Attorney General.  
He said he should conclude with letting his Lordship know, that as the King himself had sufficiently declared, that there was no danger in the letting him have his liberty, so he had such Bail to offer to his Lordship as would sufficiently satisfy the World, that he should be forthcoming to answer when and where that Court should appoint, and then he hoped the two chief grounds for detention in a Prison (viz. The danger of a Man's having his liberty; and the danger of his not appearing to abide his Trial) would be fully answered.  
And if it might not seem too great a vanity to say (although the true reason does take away the vanity of it, because it would not be for his, but for their own sakes, as what may happen to be their own Cases) he said he doth believe, he could have the Major part of the House of Lords to be his Bail in this Case, and some of those very Lords, who were for the making of this Order, although not in that sense which would seem to be put upon it. In so much that there would be no more to fear in the Granting him Bail, than he hoped there was either Reason or Justice to deny it. And he doubted not, but he was there before very just Judges, who would duly consider what he had said.  
The Lord Chief Justice then speaking did say, That the Earl of Danby had seemed to reflect upon the Court, as if they had denied him Justice in not hearing his Counsel.  
Then the Earl of Danby desired leave to interrupt his Lordship, saying, That his Lordship had mistaken him, for that he had said no such thing of that Court, nor did he mean it of that Court; but said, it was very well known that his Counsel had been forbid to plead for him in another place, which was then acknowledged by Justice Jones to be very true.  
The Lord Chief Justice then proceeded, and said, That for his Lordship's saying, they needed not to fear, because he did believe the Greatest part of the Lords would be his Bail: That it was not the fear of another Court that had any kind of influence upon them, or that they should do such things as they feared to be called to an account for; but that they were to govern themselves by the doing of Justice.  
That they had heard his Lordship with a great deal of patience, and that he had said many material things, and with much acuteness, and that they were not senseless of the hardship of his Lordship's Case, and of the greatness of his sufferings.  
That they were likewise sensible of the King's desires that his Lordship should have no longer Imprisonment than the Law requires; and he confessed that the King had done as much as lay in his power.  
That it was not denied, because that Court could not Bail for Treason, for that they had a power to Bail in all Cases whatsoever, if the Court saw cause: Neither would the Indictment which was found against him about Sir Edmondbury Godfrey have hindered; nor was it the Order of the House of Lords which hindered them; But that they were to act there according to Law, and 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 lie so long in Prison; but here was the misery, they could only compassionate him, for that his Lordship was imprisoned by an higher Hand, and where they had no power to intermeddle.  
He instanced in Indictments for Treasons, and several other great Crimes, in which they could Bail men, but in this Case, the Supreme 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.  
He said, That they had a Jurisdiction over all the Courts in the Kingdom (that only excepted) and as it would be very Incongruous for an Inferior Court to Bail whom they had Committed, or to call their Processes in question, so would it be in like manner for them to do in this Case, because the Lords exceed their Jurisdiction, and were above them: He said also, That the Opinion of all the Judges in England had been taken therein, and had delivered their Opinions, that he could not be Bailed, and that the truth was, his Lordship was imprisoned by too high a Court for them to Bail him: But that his Lordship was not Indefinitely Imprisoned as he had alleged; for whenever his Majesty is pleased to call a Parliament, his Lordship would have remedy.  
That the King has power to do it when he pleases; and for his People's good, no doubt he will when he sees fit: But that at some time the Circumstances of State differ from other times, and 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 endured for the good of the Public. He said also, That if that Court should commit a man for High Treason, and the King should Adjourn them from time to time, that man could not be Bailed until they sat again: So that he must confess (as his Lordship had said) that as this Case did happen, he was under a Temporary Indefinite Imprisonment.  
He concluded which telling his Lordship, That he must be contended to wait the King's pleasure when he would call a Parliament.  
That for his part, he was before of Opinion that they could not Bail his Lordship, and he was so still.  
The Earl of Danby to all this answered, that he must confess his Ears did tingle to hear his Lordship say, That the King had done 〈◊〉 much as lay in his power; when his Majesty is bound both by his Coronation 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, and whether he had not deputed a Power to them to see right done to all accordingly?  
He said also, that he was now under greater amazement than before, since his Lordship had both granted, That this Court could Bail any Treason, and that the Order of the House of Lords did not hinder it; which till now he confessed he had taken to be the only obstruction to his Liberty.  
That he had hoped he had satisfied his Lordship, that although he was Imprisoned by an higher hand, yet that the bailing of him did not intermeddle with the Jurisdiction of that higher Judicature, and he had yet heard nothing to show him that it did.  
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; for that the Opinion of the Judges had never been asked in his particular Case, saving once, upon his Petitioning the King for Liberty to go to his Country House at Wimbledon, with a Guard, or otherwise, as his Majesty should think fit; which Petition was referred by his Majesty to the Judges; and they (according to their wanted 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 King's pleasure when he will call a Parliament; He took those to be fuller Arguments than any himself had made, to prove that his Imprisonment was Indefinite, and at the King's pleasure, so that he was now more fully confirmed than ever to be of that Opinion, and wished that every man that heard that Doctrine given for Law, might fully consider the consequences of it.  
He said further, that his Lordship had mistaken him in thinking that he had said he was under a Temporary Indefinite Imprisonment, for that he had said he was under an absolute indefinite Imprisonment; and that his Lordship had rather proved him to be so, than shown any thing to the contrary; nor did he know what Temporary Indefinite did mean.  
The Lord Chief Justice then said, That he was not a Judge at that time when the Judges Opinions were asked, but desired his Br. Jones to relate how it was.  
Mr. Justice Jones then said, That he remembered the Case had been put to the Judges, Whether the Lords in the Tower might be Bailed, and that it was then the Opinion of the Judges that they might not; but he said he did think the Earl of Danby was not particularly concerned in the question at that time, but that it related to the Popish Lords only, and that there was much difference betwixt his Lordship's Case and theirs, Besides he did think that was at a time when there was a day appointed for the meeting of a Parliament.  
The Earl of Danby then said, that the question which was put at that time to the Judges about the Popish Lords, did not concern his case at all, for that it differed from theirs in very many particulars, which he had already mentioned, viz. Of no Oath against him, No special Treason alleged, etc. which he was loath to trouble them with Repeating again; but he supposed that the then Opinion of the Judges, ought not to be made any Argument against him.  
He said also, that the Lord Chief Justice had argued very strongly for him; For that it was true, That the King might call a Parliament when he pleased, but if therefore a Man must stay in Prison till the King did please to do so, he may (by that very Argument) lie there all his life-time if the King pleases; which confirm's what he had been a great part of this time, labouring to prove; and he said, he must confess he did expect to have heard stronger and more powerful Arguments to have convinced him that he was in the wrong in what he had said; but that now he was more encouraged than before, not to give over a Cause which did so much concern every Man in England.  
The Lord Chief Justice then said, that his Lordship was mistaken in believing that That Court did keep him in Prison, for that he was not keptin Prison by them, but by a superior Court, which was too big for them to meddle with, or to examine what they did  
To this his Lordship answered, That he had wrong done him, which must be done by some body, and that it was a Maxim of the Law, That the King could do no man wrong (being advised by his Courts) besides, that his Majesty had twice showed his Consent in that Court to have him Bailed. Neither could he say, that the Lords did him wrong, because there was nothing in their Order to hinder his being Bailed, (besides their own practice to the contrary) and it seemed now to be said, that it was by the Law, and not by the Order, that he was kept a Prisoner. He said, he would not say that That Court did keep him a Prisoner, but by some body he was sure he was kept Prisoner, but perhaps it might be by the Stars, since he could not find who it was upon Earth that did it.  
He concluded that if he were legally Imprisoned, yet by Magna Charta and the Petition of Right etc. It was impossible for an English Man to be without some certain prospect of relief in a reasonable time, they being to have Justice done them by the Law at all times, and without delay; and that he was now in the King's proper Court for Justice, wherefore as his Lordship had given his own opinion, so he did desire that every Judge would be pleased to deliver theirs severally.  
Then Mr. Justice Jones said, that he was not ready to give any present Opinion, there having been so much, and some things so materially said by his Lordship; but that for his better satisfaction he did desire to ask his Lordship a question, in a point which did much stick with him, and would go a great way in guiding his Judgement; and he was confident that his Lordship was as able to give him an answer to it as any Man; which was this, His Lordship (he said) had been charged with Treason by an Impeachment, and had pleaded a Pardon to the Impeachment before the Lords; He said he took that Plea to be a Tacite Confession of guilt in Law, (though the Party were never so innocent) and then it had been a Tacite pleading of Guilty, insomuch that he did believe, there could be no admittance of any Second Plea, and if so, he did confess he did not see how that Court could then have any thing to do with his Lordship in that Case; but it was what he had not yet well considered (though at present he took the Law to be so) and he did desire to hear what his Lordship did say to that?  
His Lordship answered, that he gave him great thanks for letting him clear any Objections, and giving him liberty to answer them as well as he could. That this indeed was a question of Law, which he was but little versed in, but that he was at present able to say, that he had read the Opinions of some great Men of the Law, to be otherwise; and instanced what the Lord Goke had said upon the Case of Gravesend Bishop of London 7. E. 3. who did get a Writ of Discharge to the King's Bench, and did not take a Pardon, upon which he observed the said Lord Coke to have said. That it may be he thought that the taking of a Pardon would have implied a confession of the fault, and therefore went a new way; but that was a mistake, for that no Man that is wise and well advised will refuse God and the Kings Pardon, how often so ever he may have it; for there is no Man but offendeth God and the King almost every Day, and the Pardon is the safest and surest way.  
And though at present he said he was not provided of Precedents in the Case, yet he remembered there was a Case of a coiner tried at Durham upon a Pardon, where the Pardon proved defective, and yet he was allowed to plead over.  
And he told him, that the same question had been moved in the House of Lords upon his own Case, where divers Lords had declared themselves, that they hoped it should never pass for Law amongst them, that a Man should not have one Plea for his Life, and gave for reason that if a Pardon was pleaded, and not admitted to be good, than the Prisoner had depended upon what he thought had been a good Plea, but was adjudged by the Court not to be so, and then if he should not be admitted to plead over, it would be to ensnare a Man's Life, without giving him any Plea at all for it. And he concluded, saying, he thought that this question was rather going into the Merits of his Cause, than to what he only demanded, which was but Bayl.  
Mr. Justice Dolben then said he must acknowledge there was a vast difference betwixt his Lordship's Case and the Case of the Popish Lords in the Tower, in many Material particulars, which his Lordship had mentioned, and he must confess that he thought it one of the hardest Cases in England: He said also, that he could not but differ from what his Br. Jones had said, as to the not having liberty to plead over, for that he was of Opinion his Lordship ought not to be debarred from having a second Plea, if the Pardon should be overruled, and if (I did not mistake him) he cited the instance of one Hetleys' Case (or such a name) and he said that his Lordship had said so many things of great consequence, that he thought it did very well deserve further consideration, but if he should be put to give any present answer, he must then say (as my Lord Chief Justice had done) that he thought they could not Bail his Lordship, but he thought it might well deserve further consideration.  
Mr. Justice Raymond then said, That his Lordship's Case had so many weighty Circumstances in it, as aught to make it to be very well considered, before any Opinion could be delivered in it. That for what had been said by his Brother Jones, about the Pleading over or not, he thought that did not properly lie before them in that place, That his Lordship had said some things, to which he thought full answers might be given, but that he had also said some things, to which he thought it would not be so easy to answer. That for his part he thought it was a Case which might well deserve the consideration of more of the Judges, betwixt this and the next Term, and that he must acknowledge he must further consider it, before he would presume to give any Opinion at all upon it.  
A Council at the Bar then moved, that a Rule of Court might be made to bring his Lordship thither again, the first day of the next Term.  
The Lord Chief Justice seemed displeased with the forwardness of that Counsel, and the Earl of Danby Excused it, saying it was not moved by his desire or directions; but said, that was all one as to him, whether there were any Rule of Court or no, for that they were like to be troubled with him again, and 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, and wherein he had found so little to be said against him, that he did believe he should be as troublesome to them as ever Judge Jenkins had been heretofore in the defence of English Liberty.  
The Lord Chief Justice then standing up said, My Lord, your Lordship must for the present be content to be remanded; and speaking to the Lieutenant of the Tower's Officer, told him, he must take back his Prisoner.  
And then the Lord Chief Justice immediately lest the Court.  
FINIS.