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the Writs, and Counsel appointed, who had Copies An. 4. Charles I. of the Returns: A Rule was granted, and their Counsel heard; but Exception was taken to the Return, because it did not fhew the Cause of their Caption. This was of no Force in the Opinion of the Judges. The next Exception was, Because no Cause of their Commitment was fhewn; which the Judges held to be all one in point of Law.

"Then, my Lords, they alledged many Precedents and Statutes, which the King's Attorney answered, That Perfons committed by the King, or Council, were never bailed, but his Pleafure was first known,

We agreed, at the Chamber of the Chief Juftice, that all the Statutes alledged are in force; but whether we fhould bail them or no, was the Question; therefore we remitted them quoufque. After which Mr. Attorney required a Judgment might be entered. I commanded the Clerk he fhould not fuffer any fuch Thing to be done, because we would be better advised.

But fome will fay, our Act is otherwife; I anfwer, No; for we have done no more than we do upon ordinary Writs, when we purpose to be better advised, and that was only an interlocutory Order. But, my, Lords, put the Cafe a Habeas Corpus fhould be granted for one that is committed by the Houfe of Commons, would they (think you) take it well he fhould be bailed at his firft coming to the Court? I think they would not: And I think the King would not in this Cafe.

Now, my Lords, there is a Petition of Right; and a Petition of Grace: To be bailed is a Matter of Grace; therefore if a Man be brought upon an Habeas Corpus, and not bailed, he cannot fay the Court hath done him any Wrong.

I have now ferved feven Years Judge in this Court, and my Confcience beareth me Witnefs that I have not wronged the fame. I have been thought fometimes too forward for the Liberty of the Subject.

I am myfelf liber Homo, and my Ancestors gave their Voice with Magna Charta. I enjoy

A 3

that

1628.

An. 4. Charles I.that Houfe ftill which they did. I do not, now, mean to draw down God's Wrath upon my Pofterity; and therefore I will neither advance the King's Prerogative, nor leffen the Liberty of the Subject, to the Danger of either King or People. This is my Profeffion before God and your Lordships.

Mr. Juftice DODDERIDGE.

My Lords,

IT

T is no more fit for a Judge to decline to give an Account of his Doings, than for a Christian of his Faith. God knoweth, I have endeavoured always to keep a good Confcience; for a troubled one, who can bear? The King holds of none but God; and Judgments do not pafs privately in Chambers, but publickly in Court, where every one may hear; which causeth Judgment to be given with Maturity.

Your Lordships have heard the Particulars defivered by my Brethren. How that Counsel being affigned to four of thefe Gentlemen, in the latter End of Michaelmas Term, their Caufe received-a Hearing; and, upon Confideration of the Statutes and Records, we found fome of them to be according to the good old Law of Magna Charta; but we thought that they did not come so close to this Cafe, as that Bail fhould be thereupon, prefently, granted.

My Lords, the Habeas Corpus confifteth of three Parts, the Writ; the Return upon the Writ or Schedule; and the Entry or Rule reciting the Habeas Corpus: And on the Return together with the Opinion of the Court, either a Remittitur, or Traditur in Ballium is granted. In this Cafe a Remittitur was granted; which we did, that we might take better Advisement upon the Cafe: And upon the Remittitur, my Lords, they might have had a new Writ the next Day; and I wish they had; because, it may be, they had seen more, and we had been eafed of a great Labour, And, my

Lords

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Lords, when the Attorney, upon the Remittitur, An. 4. Charlest. preffed an Entry, we all ftraitly charged the Clerk that he should make no other Entry than fuch as our Predeceffors had ufually made, in like Cafes: As for any Difference, my Lords, betwixt Remittitur and Remittitur quoufque, I could never yet find any.

'I have now fat in this Court fifteen Years, and I should know fomething: Surely if I had gone in a Mill fo long, Duft would cleave to my Cloaths. I am old, and have one Foot in the Grave, therefore I will look to the better Part as near as I can. But omnia habere in Memoria, et in nullo errare, divinum potius eft quam humanum.

I

The LORD CHIEF JUSTICE.

My Lords,

Shall not speak with Confidence, unless I might ftand right in the Opinion of the House. I protest what I fpake before was not faid, by me, with any Purpose to trench upon the Privileges of this Houfe; but out of that Refpect which, by my Place, I thought I owed to the King. Concerning the Point, now to be spoken to, I fhall not trouble your Lordships with Things already repeated, wherein I concurred with my Brethren. If it were true, the King might not commit, we did wrong in not prefently delivering; for, my Lords, these Statutes and good Laws being all in Force, we meant not to trench upon any of them; moft of them being Commentaries upon Magna Charta: But I know not any Statute that goeth fo far, that the King may not commit. Therefore juftly, we think, we delivered the Interpretation thereof to that Purpose: For, my Lords, Lex Terra is not to be found in this Statute; they gave me no Example, neither was there any Caufe fhewed in the Return. A Precedent, my Lords, that hath run in a Storm, doth not much direct us in point of Law; and Records are the beft Teftimonies. Thefe Precedents, which they brought, being read, we fhewed them wherein they were mistaken. If

we

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An. 4 Charles I. we have erred, erravimus cum Patribus; and they can fhew no Precedent, but that our Predeceffors have done as we have done; fometimes bailing, fometimes remitting, fometimes difcharging. Yet we do never bail any committed by the King, or his Council, till his Pleafure be first known: And thus did the Lord Chief Juftice Coke in Raynard's Cafe. They fay, This would have been done, if the King had not written; but why then was the Letter read, and publifhed, and kept? and why was the Town-Clerk fent carefully to inquire (because the Letter fo directed) whether thefe Men offered for Bail were Subfidy-Men? The Letter fheweth alfo that Beckwith was committed for Suf`picion of being acquainted with the GunpowderTreafon; but, no Proof being produced, the King left him to be bailed.'

A Report of a fecond Conference between both Houfes concerning the Li. berty of the Subject.

The Judges having_ended (e), the Lords adjourned to the 17th: On which Day the Matter was argued, very folemnly, at a Conference between the two Houfes, by the Attorney General and the King's Counsel on one Side, and a select Committee of the Houfe of Commons on the other. Rushworth has omitted this fecond Conference; but, as it is a Matter of as great Confequence as any thing yet met with in thefe Enquiries, we fhall give it at Length, from the Authority of the Lords Journals.

Die Sabbati, 19. Die Aprilis, 1628.

The LORD-KEEPER'S (f) REPORT of the first Part of the CONFERENCE between the Lords and Commons, on Thurfday the 17th of April, concerning the LIBERTY of the SUBJECT.

A

T this Conference Mr. Attorney declar'd, That as, by Commandment of the Lords, himfelf, and his Fellows of the learned Counfel, advifed

(e) An Order was made that thefe Speeches of the Judges fhould not be enter'd in the Journals; probably, to prevent their being drawn into Precedent.

(f) Thomas Lord Coventry.

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vifed together, and by him had declared in this An. 4. Charles 1. House what was conceived fitting; fo, upon a new Commandment, they had again advised and conferred; fhewing, at this Conference, the Effect of what was delivered in the House; which, in Subftance, rested upon thefe Parts.

1. The State of the Question.

2. Acts of Parliament, and parliamentary Proceedings.

3. Precedents.

4.

Refolutions of former Times.

5. Some Reasons offered to maintain this Side, and weaken the other.

In thefe, by their Advice, he refolved not to pafs from Point to Point; but, according to the Time and Occafion, to touch fome Parts fummarily, and to infift chiefly upon one, viz. The Precedents for the parliamentary Proceedings. He agreed, That the great Charter, upon which the Liberty of the free Subjects of this Kingdom is grounded, is in force; and that, in former Times, Occafions were often given to the Subject to prefs it to be confirmed; and that the Commons did fitly and worthily to maintain the Liberties and Privileges left unto them by their Ancestors.

He did alfo acknowledge, That this Charter did extend to the King, rather than the Subject; and that the fubfequent Statutes, fix in Number, ftand in force; but the Difference and Doubt refted in the Interpretation and Application of the Statute: For the Words of Magna Charta are general; that it did not restrain the King from imprisoning a Subject; but with this Claufe, Nifi per legale Judicium Parium fuorum, vel per Legem Terra: And how far Lex Terræ extends, is, and ever was the Queftion. Of the fubfequent Statutes, fome confirm Magna Charta in totidem Verbis; and therefore decide not the Question, but leave it as they found it ; fo that to ground any Arguments on them will be but Petitio Principii; and the others concern not the Question now in hand, but were made for Redrefs of Inconveniences happening to the Subjects,

by