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An. 4. Charles I. 119th Pfalm, defires a found Heart; that is, a Heart without Diffimulation: Ergo, No King fhould covet to diffemble in his Mandates.

Then for that Cafe of Rebellion, in Ireland, he faid, it was bona Terra, mala Gens. But, he faid, O Donneil's Children loft nothing by the Bargain; periiffent nifi periffet; for they were better brought up here in the true Religion, inftead of Popery. Befides, they have loft nothing, for their Blood was tainted. It was Charity to keep them. A ftrange Provifo, that a Thing happening once in a hundred Years, fhould overthrow and marr fo many Statutes in continual Use, against the old Rule, Ad ea quæ frequentius accidunt, Jura adaptantur! And he never heard of fuch an Objection.

; er

In the next Reason, he said, Mr. Attorney came close to him, and faid he was glad he had awaked him. That a King is trufted in greater Things, as War, Money, Pardons, Denisons go, &c. Negatur, faid he, for the Liberty of the Perfon is more than all thefe; it is maximum omnium humanorum Bonorum, the very Sovereign of all human Bleffings: Yea, but the King may make Money of Brafs, (faith Dionyfius Halicarnaffeus) or other bafe Metal, as he heard Queen Elizabeth fay, that her Father, King Henry VIII. did hope to live fo long, till he faw his Face in Brafs; i. e. in Brafs Money. He faid this was a main Point: And that whatever the King's Power was by the Common Law, yet was it qualified by Acts of Parliament. And no Man will deny but the King may limit himself by Acts of Parliament.

• He cited 9. Edward III. Chap. 4. 3. Henry V. Chap. 1. that the Money must be of Weight Sterling; ergo, it must, now, be of the Lay and Fineness of Sterling. In another Statute, de Dimiffione Demariorum, it is required the Coin fhould be de legali Metallo; ergo, not illegitimate.Why muft the King have the Mines of Gold in my Land, but for the Ufe of his Mint and Coining? He cited alfo a Law of King Edgar, Chap. 8. and of Canutus, Chap.

Chap. 8. That no Money fhould be current but of An. 4. Charles L Gold and Silver.

For Pardons; they are alfo limited, in wilful Murder; as he proved out of the 4th of Edward III. and 25. Edward III. And this he said by the Way, how his Part was short, and that he had before exprefs'd what Books and Warrants they had for their Tenet. If he be a little more earnest than feems fitting, he craves your Lordships Pardon; it concerns him near.

• He takes Occafion here to fay (under Reformation) his Reasons were not answered, or not fully. He touched upon his former Reafon from Imprifonment (m); that it is a Badge of a Villain to be imprisoned without Cause; that this and Tallier luy baut & bas font propria quarto mode to Villains: This he prefents with all Reverence; for we, faid he, fpeak for the future Times only: Our King is good, and the Council moft gracious; but non Nobis nati fumus; it is for our Pofterity that we defire' to provide, rather than for ourselves, that they be not in worse Cafe than Villains; for to be imprifoned without Caufe fhewn, is to be imprifoned without Cause at all. De non apparentibus & non exiftentibus, eadem eft Ratio.

He agreed with Mr. Attorney, he faid, in the Enumeration of all the Kinds of Habeas Corpus; and if they two were alone, he did not doubt but they should agree in all Things. Only, he faid, that for a Freeman to be Tenant at Will for his Liberty, he could never agree to it; it was a Tenure that could not be found in all Littleton.

Then he alfo touched his former Argument from Univerfality; that the Lords, the Bishops, and all are jumbled and involved in this Univerfality. Law doth privilege Noblemen from Arrefts: This new Doctrine, like the little God Terminus, yields to none. Nay, the Judges themfelves, when they fhould fit on the Bench, must be walking towards the Tower.

(m) See Vol. VII. p. 420.

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An. 4. Charles I. Then he fell to a Proteftation, that he intended no Prejudice at all to the King for Matters of State; for the Honourable must be maintain'd in Honour, or this Common-Wealth could not subfist; but the Question was, Whether they ought not to express the Cause? He repeated again Plowden, 4. Eliz. Pl. 236. The Common Law hath fo admeasured the King's Prerogative, as he cannot prejudice any Man in his Inheritance. He cited alfo 42. Edward III. Chap. 1. to prove, that all Judgments given against Magna Charta are void.

Next he was pleased to fay, He was not fo well dealt with in one Particular as he expected: For a Student's Report fhould not have been cited against him. He defired Mr. Attorney to remember, he had not Veritatem ex Cathedra, or Infallibility of Spirit; that was for the Pope. He faid, he mifgrounded his Opinion upon 33. Henry VI. which being nothing to the Purpofe, he is now affured his Opinion is as little to the Purpose.

Here he took Notice of an Objection, What can you arreft none without a Procefs or original Writ? Why, the fufpected Fellow will run away?" To which he anfwered, That Procefs fignifies the whole Proceedings: And cited a Rule in Law, Quando Lex aliquod concedit, concedere videtur id, fine quo Res ipfa effe non poteft. The Law gives Procefs and Indictment; ergo, gives all Means con ducing to the Indictment. And this anfwers all Mr. Attorney's Cafes of Watchmen and Conftables.* And here paused Sir Edward Coke.

Mr. Noy offered Answers to the Inconveniences prefented by Mr. Attorney.

First, he faid, where it was objected, That it was inconvenient to exprefs the Caufe, for fear of divulging Arcana Imperii; for hereby all may be dif covered, and Abundance of Traitors never brought to Juftice: To this that learned Man anfwered, That the Judges, by Intention of the Law, are the King's Council, and the Secret may fafely be

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committed to all, or fome of them, who might An. 4. Charles. advise whether they will bail him: And here is no Danger to King or Subject; for their Oath will not permit them to reveal the Secrets of the King; nor yet to detain the Subject long, if, by Law, he be bailable.'.

Secondly, For that Objection of the Children of O Donneil, he laid this for a Ground, That the King can do no Wrong: But, in Cafes of extreme Neceffity, we muft yield fometimes for the Prefervation of the whole State: Ubi unius Dampnum Utilitate publica rependitur. He said there was no trufting Children of Traitors: No Wrong done, if they did tabefcere or marcefcere in Carcere. It is the fame Cafe of Neceflity, as when, to avoid the burning of a Town, we are forced to pull down an honeft Man's Houfe; or to compel a Man to dwell by the Sea Side for Defence or Fortification. Yet the King cannot do wrong: For Potentia Juris eft non Injuria; ergo, The Act the King doth, though to the Wrong of another, is, by Law, made no Wrong: As if he commands one to be kept in Prison; yet the King himself is not refponfible for this Wrong. He quoted a Book 4z. Affiz. C. 5.

Thirdly, For the Inftance made of Westminster 1. he faid, 'There was a great Difference between' these three, 1. Mainprize; which is under a Pain. 2. Bail; which is Body for Body, and no Pain; for the Party is ever in Court to be declared against. 3. Replevin; which is as much as both; yet it is neither by Surety nor by Bail; for if replevied, then he is never in Court. By this Statute, faith Mr. Attorney, a Man cannot be replevied; ergo, not bailed? Non fequitur.'

Fourthly, Where it is faid, That Bail is ex Gratia, he answered, That if the Prifoner comes by Habeas Corpus, then it is not ex Gratia; yet the Court may advife: But mark the Words, ad fubjiciendum & recipiendum prout Curia confideraverit. Now it is impoffible that the Judges do to, if no Caufe be expreffed: For if they know not the

Caufe,

Caufe, he may bring the firft, fecond, third, and fourth Habeas Corpus, and fo ad infinitum, till he find himself a perpetual Prifoner: So that no Cause expreffed is worfe for the Man, than the greatest Caufe or Villainy that can be imagined.' And thus far proceeded that worthy Gentleman.

Mr. Glanville faid, That, by Favour of the Houfe of Commons, he had Liberty to fpeak, if Opportunity were offered: He will therefore apply his Answer to one Particular of Mr. Attorney; who affigned to the King four great Trufts; 1. Of War. 2. Coin. 3. Denifens. And, 4. Pardons. It is affented unto, that the King is trufted with all thefe four legal Prerogatives: But the Argument followeth not, That therefore he fhall imprifon without Cause shewn.-Again, The King is trufted in many Prerogatives; ergo, faith Mr. Attorney, in this! Non fequitur; quod non eft fufficiens Enumeratio Partium.- He faid he would anfwer Mr. Attorney's four great Trufts with two Rules; whereof the firft fhould wipe off the firft and fecond; and. the other, the third and fourth.

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The firft Rule is this: There is no Fear of trufting the King with any Thing; but the Fear of ill Counsel against the Subject: The King may easily there be trufted, where ill Counsel doth equally engage both the King and Subject; as it doth both in Matters of War and Coin. If he miscarry in the Wars, it is not always plectuntur Achivi; but he fmarts equally with the People. If he abafe the Coin, he lofeth more than any of the People: Ergo, He may fafely be trusted with those Flowers of the Crown, Wars and Coinage.'

The fecond Rule he gave was this: When the King is trufted to confer Grace, it is one Thing; but when he is trusted to infer an Injury, it is another Matter. The former Power cannot, by miscounselling, be brought to prejudice another; the latter may. If the King pardon a guilty Man, he punifheth not a good Subject. If he denizen never to many Strangers, it is but Damnum fine Injuria..

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