M ^R. Jenkes, having been a Trader for many years, and observing the daily decay of Trade in the City, oc­casioned by such mischiefs, as lay not in the industry of its Inhabitants, but only in the power of the Government to redress; and that did require a more speedy redress than a Parliament Prorogued for 15 Months could afford; after having in vain solicited the Lord Mayor for a Common-Council, that might consider of a Petition about Trade; out of a hearty zeal for the good of the City, as well as encouraged by the consent and desire of many sober City-zens, the Liberty reserved to the Lord Mayor, Aldermen, and Common-Council, by the Statute of the 13th. of this King concerning Petitions, the Votes of a majority of the Temporal Lords at the last Session, together with the unan­swerable Reasons given in their Protestation, did at the Folk-moot (or Common-Hall) holden the 24th. of June last past, in the Guild-hall of London, thus diver himself.

Scarcely were the words, A Nevv Parliament, pro­nounced, but the greatest part of the Assembly cryed out, Well moved! Well moved! And though none spake up for­mally to the Sheriffs, yet several amongst them spake enough to shew a high approbation of what had been said, and not one word was spoken in contradiction: which when the Common Sergeant saw, to prevent (as is conceived) others speaking to the same matter, he spake to this purpose.

That what had been moved, seemed to be the general sence of the whole Court, and since the Gentleman that made the motion, was pleased to joyn him with the Sheriffs, and that he must offer his opinion in the matter; It was this, That it was not so proper to carry up that message before they did proceed to their Elections; as first to determine their Election, and then carry up an account of these and that together. But many in the Court did insist upon the mo­tion and desired a message might be sent up immediately. Whereupon one of the Sheriffs spake, and did acknowledge That what had been said by the Gentleman that spake first was true, but that he was an Old Citizen, and had long known Common Halls, and he did believe that the proper Work of the Day was the Election of Officers, and there­fore he did desire that the Court would proceed, and not to carry up the Message till after that was done. To which one replyed; That according to his utmost understanding that Court was one of the antientest, greatest and most power­full Courts of the City, and although the customary busi­ness of this day were the choice of Officers, yet that Court had cognizance of any thing whatever that did relate to the good of the City, and therefore it was conceived, that no­thing was more proper at that time than this which con­cerned the preservation of the City from utter ruine.

Upon which the other Sheriff directing his discourse to the Assembly, said, That what the Gentleman had moved there was true, and not unknown to most of the persons [Page 7]there present; but that he was of his Brothers opinion, [...] it was fit first to go on to the work of the day, and not to car­ry up that message till after the Election. Many persons be­ing still dissatisfied, and calling for a present message to be sent up, the Gentleman, who first moved the business made it his request, that since there seemed a difference touching the circumstance of time, that they would proceed to Electi­on, and carry up the Message with the persons Elected, as the Sheriffs desired; to which the common Hall unanimous­ly agreed. Upon which, silence being made, the common Hall proceeded to election of Sheriffs, and made their Electi­on, and sent up an account thereof to the Lord Mayor and Aldermen by the Sheriffs and common Sergeant, as is usual in such cases. The Lord Mayor and Aldermen presently came down and took their seats in the Court of Hustings ac­cording to custom; upon which the common Sergeant came forth to the front of the Court, and declared the Names of the persons Elected, and immediately gave back. Thereupon the common Hall called out for an Answer to their Message; upon which the common Sergeant step­ing forward again in the presence of the Lord Mayor, Al­dermen and Sheriffs, said. That he had acquainted his Lord­ship and the Aldermen with their request, and that his Lord­ship had commanded him to declare unto them, that he would be ready to joyn with them in that, or any other thing for the good of the City. And with that the Lord Mayor and Aldermen, &c. left the Court of Hustings, and dismis­sed the Assembly.

After Dinner, the grave Recorder, Sir John Hovvel, out of a great pretence of Loyalty, but indeed a personal Grudge against Mr. Jenkes, conveyed the news to White Hall, where with his usual strain of Retorick, he made such a dismal representation of the mat­ter, and was so powerful in his Eloquence, as to occasion both the Sheriffs and some other of the City Officers to be [Page 8]sent [...], who were examined by t [...] Lord Ch [...] Justice Rainsford, in the presence of the King, the Lord Chancel­lour, the Lord Treasurer, Duke Lauderdale, and other Lord.

The Sheriffs [...] others made Affidavits, but a Copy of them could never be obtained. Upon the [...], Mr. Jenkes was summoned by a Messenger to appear at the Council Board the next day. Accompanied with many of his Friends, he attended in the Lobby, near the Council Cham­ber, according to his summons, and after some time was cal­led in, but his Friends pressing to follow him (as is usual on such occasions) were kept out, and not one suffered to go in with him. The King sitting in Council, the Lord Chan­cellour, D. Lauderdale, and other Lords about him, The Clerk read an Affidavit made by the two Sheriffs, the com­mon Cryer, and one John Green an Attorney; the Sub­stance whereof was,

That Fr. Jenkes, at a Common Hall in London, the 24th. of June last past, did complain of Grievances, an did desire that before they vvent upon any other business, certain Members of that Court might accompany the Sheriffs and the Common-Sergeant to vvait upon the Lord Mayor, then in the Chamber, to desire that a Common-Council might be called to Petition his Majesty, in the Name of the City, to Call a New Parliament.

The Affidavit being read, the Council Board proceeded to this effect.

Sir, What say you to this matter?

I desire to know if this be all you have to charge against me?

Then you make little of this: You will find it to be enough.

Sir, Did you move for a Common-Council to Petition for a Nevv Parliament?

Is it any Crime to Petition for a Nevv P [...]rliament?

[...] which his [...]ship not thinking fit to give any [...] proceeded.

Answer to the matter in charge.

W [...] the liberty of his Majesty and this [...]oard, I will.

Go [...].

May it please your Majesty▪ Of all the Subjects you have,

Answer to the matter.

If his Majesty will be pleased to hear me, I hope you will

Let him go on.

May it please your Majesty, Of all the Subjects you have, none are more Loyal than your City of London, and in the City, none more loyal than my self, and no man there did more desire, and in my circumstances act more in order to your Majesties Restauration than my self: And I do desy any Citizen or other, whomsoever, to say I have forfeited my loyalty by any one individial act

The King interrupting him, Sir, you are not Lord Mayor, and I am very well satisfied with the loyalty of the City, and that it needs no such Vouchers.

Speak to the matter.

May it please your Majesty, Being sum­moned to a Court of Common Hall in London, which is a Court that consists of the main Body of the City.

interruping him, Sir, you are under a double mistake, for first, it was not a Court; and next, it did not consist of the main Body of the City of London.

With your Lordships leave, it was a Court which doth consist of all the Livery of the City of L [...]don, which, if I understand any thing, is the main Body of the City of London. And every member of that Court hath freedom to propose and debate any such matter or thing as [Page 10]he believes is for the service of his Majesty, and the good of the City; and no man can use more understanding than God has given him. And I assure your Lordship, what I then moved, was according to the utmost of my understand­ing for his Majesties service, and the good of the City. And (my Lord) if I were under a mistake, I had the fortune to have good Company, for what I moved, was approved by the whole Court.

It was not so.

We have a deposition to the contrary.

It was so.

It was not so.

May it please your Majesty, If you have a hundred depositions to the contrary, if the matter of fact were so, it was so, and I do affirm, it was approved by the whole Court.

How came you to be a Privy Councellour?

I never had any such ambitious thought in my head.

How came you then to meddle with matters of State?

I thought any of his Majesties subjects, in an humble manner, might Petition his Majesty for a Remedy of any Grievance whatsoever.

Do you think any one may Petition for a Par­liament?

I believe they may.

I know whose Scholar you are, and I'll take care that none such as you shall have to do with the Govern­ment.

What was't you mov'd? What was't you mov'd?

My Lords, What I spake was not in a Cor­ner, but openly in the faces of a Multitude, and therefore cannot want a Witness to attest it.

Just now it was a Court, and now it is a Multi­tude.

We Citizens pretend not to place our words so exactly inform, but that there may besome mistake in them but I think my expression was no great absurdity, for though it were a Court, yet the Persons there were so nume­rous, that it may not be very improper to term them a Mul­titude. Yet, if I have failed in due expression, I beg his Majesties pardon. I know somewhat of the Customs of the City of London, and the Powers and Priviledges of the Courts there, and somwhat also of the Laws of England, but what the Powers and Customs of this Court are, I know not, and therefore shall desire to say little, lest I should un­willingly offend.

Sir, Pray tell us, who advised you in this matter?

Who advised you?

VVhat I then proposed, was consented to by the whole Court, and so became their Act, as I said before.

and Others. Answer directly to the Question, or declare you will not.

Since I see your Majesty and the Lords are angry, tho I am not sensible that I have given you any just cause for it, I must not say, I did it without advice, lest you should be more angry, and to name any particular Person (if there were such) would be a mean and unworthy thing, therefore I desire to be excused all farther answer to such questions; since the Law doth provide, that no man be put to answer to his own prejudice.

We will take that for an answer.

Since you name the Law, by the Law you shall be tryed.

I thank you, and this Board▪

You may withdraw.

He immediately withdrew, and the room being cleared of all his friends and other company, then the Messenger, was kept there for the space of an hour and an half, and af­ [...] [...] [...]ing called in any more, was by a Warrant of the Council, sent to the Prison of the Gate-house, within the Liberties of Westminster. Soon after his commitment, he demanded of the Keeper a Copy of the Warrant, by which he was was commited, as he might, and by Law ought to have. The Keeper gave him a promise of it, but delaying the performance for two dayes, Mr. Jenkes resolutely de­manded it of him as his duty, but could not yet obtain it▪ Sometime after the Keeper sent him one voluntarily, by his man, with this excuse, That before he had positive order to deny him one, and now had to give it him.

NExt day being the. 29th. of June, divers of Mr. Je [...]kes Friends waited upon Mr. Secretary Williamson and desired to become Bail for him; but Mr. Secretary refused to take any Bail, but told them, if they did mind him of it upon Wednesday morning, he would move it at the Council. But Mr. Jnkes beleiving that to be (as it proved) but a delay, ordered some of his friends to wait upon the Lords Chiefe Justice Raynsford, and moved him for an Habeas Corpus ad Subjiciend, & Recipiend. &c. which accordingly was done; but his Lordship, denied to grant it. Alleading no o­ther reason, but that it was Vacation; though his Lordship could not but know that Writ to be the Subjects Right at all times, as well out of Term, as in Term, and Mr, Jenkes friends were ready to offer him multitudes of Presidents when it had been granted out of Term both anciently and since his Majesties Restauration.

Mr. Jenkes resolving to leave no legall course, to attaine his liberty untryed, upon Friday the 30th. Of June at a General Seal, did, by his Counsel move the Lord Chancel­lor for an Habeas Corpus; at first his Lordship did seem much surprized and did refuse to hear his Counsel, but af­ter a little pause, his Lordship bid Mr. Jenkes Counsel to move it again the next Seal, and ordered the Seal to be put off from Tvvesday the 4th. untill Thursday the 6th. of July.

Upon Wednesday the 5th. of July, Mr. Jenkes friend wait­ed upon Mr. Secreatary Willamson, and desired him accord­ing to his promise to move in Councill that Mr. Jenkes might be Bayled; but he said, he had spoake with the King and could do nothing without a Petition, so upon Thursday the sixth of July, being a Publick Seale, Mr. Jenkes Coun­sell did again move the Lord Chancellor (according to his Lordships order) and asserted the Authority of the Lord Cook, who is most clear in the Case, 2. part. Instututes fol. 53. Speaking of the VVrit of Habeas corpus in the Kings Beach, [Page] [...], The like Writ is to be granted [...] of the Chancery [...] (as in the Kings Bench) or in the Vacation, [...] the Court of Chancery, is, Officina Justitiae, and is ever [...]p [...]ed, and never Adjourned: So as the Subject being vvrong­fully [...]prisoned, may have justice for the liberty of his person [...]ell in the Vacation time as in Term.

And in the 4th. Instit. fol. 88. Speaking of the Court of [...]cery, he saith, And this Court is the rather alvvayes [...], for that if a man be vvrongfully Imprisoned in the Vaca­tion, the Lord Chancellour may grant an Habeas Corpus, [...] [...]o him justice, according to Lavv. And, [...]ide 4. Instit, [...]. 182.190.

Thus the Lord Cook.

Mr. Jenkes Counsel did likewise oss [...] a President or two, but the Lord Chancellour, making light of the Lord Cooks opinion, saying, The Lord Cook vvas not Infallible; And [...]g [...]ng all that Mr. Jenkes Counsel offered, over-ruled the matter, denying to grant the VVrit.

On Tuesday morning July 11th. at the Quarter Sessions holden for the liberty of Westminster, Mr. Jenkes being still a prisoner in the Gate-house, within that liberty, did move by his Counsell to be bayled, where this was the substance of what passed as it was taken by a by-stander.

We have no such Name in our Kalender, and we sitting here by a limited Commssion, can take no notice of any person that is not in our Kalender.

Every keeper of a Prison either in County or Franchise ought, by the statute of 3. H. [...]. cap. 3. to certi­fie the names of every Prisoner in their Custody at the next generall Goal-delivery there to be Kalendered before the Justice of Goal-delivery that the partys may be delivered according to Law, upon pain of 100 l. For every defalt there recorded, and I demand that this defalt of the Goaler may be recorded according to that statute, and that you would as you, may▪ command him to Kalender him now.

The statute was read.

VVe are no general Goal-delivery for we cannot Try severall felons but they must be tryed at the generall Goal-delivery for the County.

You are a generall Goal-delivery for all of­fences within the Cognisance of your Franchise, and there­fore unlesse the Fact for which he is Committed be such as is above your Cognisance he ought to be Tryed here, and if it be such a Fact, he ought notwithstanding to be Kal­endered here, that you may send him to the County Goal where he may be tryed.

I never did Kalender any man that was com­mitted by the Councill Table

The neglect hath not taken away your duty, and as often as you have ommitted to do so, so oft you have deserved to be fined, and I do again demand of this Court that this default of yours may be recorded.

The Court inclined to the Goaler, and would not record his default, whereupon the Counsel proceeded.

Since you exclude him from the benefit of your present Commission, I apply my self to you, without respect to that, as you are Justices of peace in general, and as such, you have power to bail any man bailable by Law, ex­cept in some particular cases where you are restrained by statute.

By whom is he committed.

By the Council Board.

Do you believe the Council Board can com­mit to prison.

I admit it.

VVe don't know for what offence he is com­mitted.

I have here a Copy of the Commitment and desire it may be read.

But the Goaler refusing to own it for a true Copy, tho [Page 18]given by himself, and the Court requiring a nicer proof, that it was a true Copy, than could at that time be made, they [...]erd the Counsel to attend in the afternoon, and in the [...] time the Goaler to give a true Copy. In the after­ [...]oon the Counsel appearing, the Court called to him, and asked him what he had to say.

I have now a Copy given and signed by the Goaler for a true Copy, and desire it may be read.

The Goaler who was to prove it a true Copy, upon the Counsels coming into Court, took an occasion to slink away and the Court (as if it had been by design) were ready to take hold of that opportunity to evade the businesse, but Mr. Jenkes friends fetched him back, and he Swearing it to be a true Copy, it was read.

What is it you demand?

What I did before: that there being nothing in this warrant for which he is not Bailable by Law, I demand that he may be Bailed.

You have taken a wrong course in comming to us.

I presume he applyes himself properly to you, for he being a Prisoner within your Liberty, you are the most proper persons to bayl him: As Justices of the Peace you have power to bayl any man within your Jurisdiction, bayl-able by Law, and where you may bayl by the Law, you ought to do so, and I demand it for Mr. Jenkes.

Where do you find such power given to Justices of the Peace?

By the same Statute, of H. 7. that I oited against the Goaler, the enacting part whereof saith, That the Justi­ces of the Peace, in every Shire, City or Tovvn, or tvvo of them at the least, vvhereof one to be of the Quorum, have autho­rity and povver to let any suck prisoner or persons, Mainpern­able by the Lavv, that have been Imprisoned vvithin their se­veral Counties, City or Tovvn, to bail or mainprize, unto their next General Sessions, or unto the next Goal-delivery, of the [Page 19]same Goales of every Shire, City or Tovvn as vvell vvithin Franchises as vvithout, vvhere any Goales be, or hereafter shall be, &c.

The whole Statute was read, and the Court taking bo [...] of the preamble, said.

This statute was made for the prevention of bailing Felons not bailable by Law, and enables us only to bail Felons bailable by Law.

The Preamble of the Act recites that mischief occasinoned by the Statute of 1. R. 3 But the Enacting part Repeales that Act and gives you a general power of letting any persons mainpernable by the Law to bail, and I'm sure no statutes made for the liberty of the subject ought to receive such a strait Construction.

Do you consider by whom he is commited? the Privy Council.

I do, and think that alters not the case.

He is commited by a superiour Court and we who are an Inferiour one cannot bail him.

It is not the Court that commits but the Fact for which the party is committed ought to direct you in Bail. The Statute of H. 7. hath no such exception in it, nor hath any other since put any such restraint upon you.

Would you have us Bail him after the Lord Chancellour and the Lord Chief Justice have refused to grant a Habeas Corpus?

They did not deny the Habeas Corpus because he was not Bailable by Law, but because the Course of their Courts in their opinions would not admit it, but however, if you ought to Bail him, as by the Statute I think you ought, their refusal does not lesten your duty.

Then the Court put him several cases that did not at all reach the present case, as they seemed to think themselvs by their faint urging them.

We doubt very much that any inferiour Court can [Page 20]Bail a man Committed by a Super [...] one.

Scruples and fears do nor [...] Law: [...] [...]out was once made in the Kings Benef [...] th [...] great case of S [...]lden and others, but the Law was for the [...]sone [...] bef [...] that time, and was sufficiently settled then, and [...] from that in reason.

[...], for that was upon a Habeas corpus out of the Kings Bench.

That is but a circumstanciall difference. The Habeas corpus from that Court is only to remove the prisoner and the cause before them, that Justice may be done to him, Mr. Jenkes is already within your Jurisdicton, and the sta­tute gives you Authority to Bail him, and your Authority makes it your duty, and I rely upon that.

We considerd upon it at Dinner, and do belive it a rare case and fit to be advised upon, and we will advise. Why did you not move yesterday when my Lord Chief Justice was in Town? Now there are no Judges in Town to advise with.

That we did not come yesterday was no design, for he is not so fond of a Goal; and if it be an indiscretion, yet that is no sufficient reason to detain a man in prison, how­ever if you have power (which you ought to know) you have it as well when they are not in Town as when they are. Is he Bailable by Law or not?

There is nothing in the Warrant for which he is not Bailable by Law.

For what reason then do you deny him?

We do not deny him, but we will advise because he is Committed by a superiour Court.

No man ought to be imprisoned for any mis­demeanour before Conviction without Bail, and it is against the Petition of Right, that any man Bailable by Law should be detained in Goal without it. I don't know how by such denials as this the being Commited by a superiour [Page 21]Cou [...]h [...] g [...]ow [...] a reason, but at present I think th [...] Petition of Right spoils it for being a good one.

You can give us no President of any one being Bailed by Justices at the Sessions, who was comm [...]tted by the Council Board.

I believe it is a rare case that a man should be forced to apply himselfe to such, but I think I ca [...] furnish you with an instance, and that is of one Cannon a Quaker who was committed by the Privy [...]ounsell about Christmas last, and was Bailed at the Sessions of the Old Baily. A pert By-stander, no ways concerned, suggested to the Court, and the Court repeated after him.

He was commited to New-Gate Prison, and was Kalendered there.

If you stick to the reason of being committed by a Superiour Court, that is no answer; but if it must be an answer, Mr. Jenkes is committed to the Prison of this Liber­ty and ought to have been Kalendero here, and then I do again demand that the Goaler be fined.

We think it a rare case and fit to be advised upon, and our Commission we here sit by, directs us to do so in difficult cases.

I told you before, I have nothing to do with the Commission you hear sit by, and your selves excluded me from it, but apply my-self to you as Justices of Peace meerly, and as such, you ought to take upon you the knowledge of your Office.

In the great case of Selden, that you Cited, the Judges took two Terms to advise.

You very well know what Opinion was had of their doing so. Will you advise upon it to Night with the Kings Counsel, and Ile attend you to morrow morn­ing?

We think fit to advise with the Judges about it till next Sessions.

[...] can easily interpret wi [...] such advili [...] [...]. [...] say you apply your self to us as Justices of [...], then you may come to any two of us a fort­ [...]ight hence or more and perhaps we may advise in the mean

I believe it will be a difficult matter to get any two of you together upon this occasion.

finding all these common Doors to Liberty shut against him, did by advise betake himself to another method, not lesse legall then the former, tho the Power, granted by the Statutes, to Justices of Peace and the constant issuing of the Writ of Habeas Corpus upon demand (both more easy Courses) have occasioned it to be of more sel­dom use.

Justice Filzherbert in his Natura Brevium (an Author and a Book of Justly venerable Authority in our Law) in h [...]s Chapter of Mainprise declars, That If a man be taken by the Kings Commission and kept in Prison for Fellony or Mis­demeanors, be may by his friends put in sureties in the Chancery, that he vvill appear before the Justice, &c. And be of good behaviour, &c. And that body for body, and there­upon he shall have a Writ out of the Chancery unto the Sheriff or unto the Constable of the Castle vvhere he is Imprisoned, to set him at liberty if he be Imprisoned for that cause and for no other.

Which words seem plainly to declare the Writ of Main­prise to be the subjects right, and not to leave a discretional power to the Officers of Chancery in granting it. But the scarcity of Presidents being the great Objection against the Habeas Corpus out of Chancery, Mr. Jenkes resolved to offend no more in that kind, and therefore caused a search to be made in the Rolls in the Tower for the Writs of Mainprise, where a multitude of them was found and many in the case of a Commitment by the Kings command. A Copy of one and a Note of severall others were taken out, to Back the Authority of Fitzherbert. With this provision, on Monday [Page 23]July 17th. four of Mr. Jenkes friends, substancial Merchants, attended with a Counsel went to the Lord Chancelour, and tho upon tender of themselves as Bayl for him, they might have demanded their Writ of Mamprise, as the Subjects right without other formality, yet they addressed themselves to him in a more respectfull manner by way of Petition, thus.

To the right honourable Henry Lord Finch, Baron of Daventrey and Lord High Chancellour of England.

The humble Petition of A. B. C. D. of London Mer­chants, friends to Francis Jenkes now Prisoner in the Gate-House of Westminster, sheweth: That the said Fr. Jenkes was Committed to the said Prison by virtue of a Warrant, a true Copy whereof is here unto annexed, for a fact Bayl-able by Law, for which, and no other cause, he yet remains there a Prisoner: And that in this and all other cases of like nature, your Petitioners are advised upon putting in Bayl in the Court of Chancery, according to the antient course and usage thereof, a W [...]rit of Mainprise ought to Issue under the Great Seal, to be directed to the Sheriff or Keeper of the Prison where such prisoner stands Committed, to deliver the prisoner so Committed.

That your Petitioners being men of good Estates (as shall if your Lordship require, be made out to your Lord­ship) do desire and are ready to become Bayl for the said Fr. Jenkes, according to the course of the Chancery, and ac­cording to the Law.

The Petitioners therefore pray, That your Lordship would accept of Bayl accordingly, and that thereupon your Lord­ship would order a Writ to be made forthwith, to be directed to the Keeper of the Gate-house, for the discharg of the said Fr. Jenkes.

And your Petitioners shall always pray, &c.

The petition being sent in to, and read by his Lordship, was returned by the Secretary with this answer, That his [Page 24] [...]ordship did very well approve of the [...] but since Mr. [...] commited by the Council P [...] he thought fit [...] Petitioned [...] should Bayl him. But Mr. Jenkes friends not being satisfied with that answer, pressed to speak to his Lordship, and were by his Lordships order called in, who comming towards them, spake to this effect.

Who Is't that puts you upon these improper methods.

We presume this addresse to your Lordship to be a proper course in our case and is such as we have prsident for.

Are you a Lawyer?

Yes, my Lord.

Have you read Fitzheberts Brevium? Look in his Writ, de homine replegiando.

We have nothing to do with that Writ, but it is by Fitzherbert that we are directed to this course, in his Chapter of Mainprise, where he saith (what is before Citied) and we are confirmed in his opinion by ampltiude of Presi­dents out of the close Rolls in the Tower, I have the Copy of one here, and the number and Roll of many more.

The president shown to his Lordship was this.

The Note of the Number and Roll of several Writs of Mainprise upon Surety put into Chancery, shewn to his Lord­ship, was this.

• II. Ed. 3. pt. 1. To the Constable of the Tower, to Deliver John Brice.
• II. Ed. 3. pt. 1. mem. 29. To the Constable of [...]he Tower, to deliver Bernard Pouch
• II. Ed. 3. pt 1. mem. 28 To the Constable of the Tower, to deliver Henry Compton Teste 26 Martij
• Eodem Rot. 23. To the [...]onstable of the T [...]wer, to deliver John de Wesenham. Teste 18 Aprilis.
• 4 [...] Ed 3. pt. 1. mem. 6. Custod Forest. For deli­very of several persons committed for Hunting in Forests, Since the Stat. 28 Ed. 3. Cap. 9.
• Eodem Rot. mem 10. The like Teste 20 Aug.
• Eodem Rot. mem. 17. The like.
• [Page] [...]odem Rot. mem. 25 The [...] Will. de Clark
• 3. Rich. 2. mem. 3. To the Sheriff of London, to de­liver Nich. de Svvederton & Joh. Deye. Teste 5. Decemb.
• Eodem Rot. mem 22. To the Justices of North Wales [...] deliver Lloyd.

One President of discretion is worth a thousand of these Presidents.

His Lordship read the President, and observing it to bear Teste the 19th. day of March, which could never be in Term, asked, When it was returnable? And said, It must be returnable in some Court at Westminster.

This President hath no Return, neither doth the Nature of the Writ in this Case require one, for it is only a Mandate to the Goaler, to set him at Liberty upon Surcties, first taken in Chancery, for his appearance before the Justices, which Justices, and the time of his appearance, I suppose are to be named in the Recognizance.

Whether there ought to be a Return is the Question; Besides, this is a Writ directed immediate­ly to the Marshal of the Houshold, and is a disserent Case.

With submission to your Lordship, it makes no disserence who is the Goaler, and those I have given your Lordship the Number and Roll of, are to several Goalers.

Then Fitzharberts Nat. Brevium was shown to his Lord­ship, and upon reading the words there, If a man be Imprison­ed by the Kings Commission, &c. His Lordship said, that it was intended of one Imprisoned by virtue of a Commission out of Chancery.

I humbly presume, that is not the sence of the Book; the Presidents I have shewn your Lordship seem to Interpret it, and are upon other Comments; and Fitzhar­bert in his Abridgment Tit. Mainprize pl. 23. cites a Book Case, that shews this to have been a course in the Chancery, but we submit it to your Lordships Judgment.

A little submission in a proper Place will do, but he hath a mind to come out with a high hand

He has a mind to be discharged by [...] Warrant for his Commitment directs.

I am not to controll any Act o [...] the Privy Council,

At the last motion for a Habeas Corpus, your Lordship was pleased to say, That though that was not a pro­per method for Mr. Jenkes to obtain his Liberty by, ye [...] there was one; and upon that encouragement from your Lordship search has been made, and this Course we have now taken found to have been the antient Course, and we did pre­sume the same that your Lordship meant.

You have used a great deal of industry to miss the right way. Your Presidents of Edward the 3d. and Richard the second, since three hundred year old, I'll consider off till next Term. Upon which Answer Mr. Jenkes his Friends withdrew.

Now the plenty of Presidents proved as great a fault, as want of them did before, and their Age, which uses to add to their Authority and give them a greater respect, made them contemned: Such alwayes is the Success where, Stat pro Ratione, Voluntas. In the Afternoon, the Secretary that first carryed in the Petition, came to Mr. Jenkes in a dis­sembled confusion, and told him that he had committed a mistake in returning the Petition, That his Lordship had ask'd him for it, Note, That he return'd it by his Lordships Order. and would be very angry with him if he had it not; That he had left his Lordship looking over some Papers and taken that opportunity of coming for it, and desired that he might have it to preserve him from his Lordships displeasure. Tho the Mornings action gave Mr. Jenkes a great deal of reason to suspect the Secretary's tale to be a meer contrivance, and easy to surmise the Truth, yet he took no notice of what had [Page 28]men passed, but sent the Petition, which was then in some of his Friends hands, that evening to him. Upon the second thoughts which his Lordship bestowed upon the matter of the Petition, he was better reconciled to it, and proved bet­ter than his word in considering the Presidents; for, in stead of pausing on them till the next Term, he was pleased to car­ry them and the Petition to the Privy Council the next [...] ­nesday, where, tho all the particulars are not known, upon [...]edible Information this was the substance of what passed. His Lordship acquainted the Board of the Address that had been made to him, and moved that the Petition might be there read. After it was read, his Lordship told them that it had some appearance of Law, and desired that the Attor­ney General might give his opinion. Mr. Attourney told him, If it were Law, his Lordship ought to grant it, if it were not Law, then to deny it; If it were of such difficulty as he could not satisfy himself, That then he should advise with the Judges. His Lordship then moved for an Order of Coun­cil for his direction in the matter, to which some of the Lords reply'd, That they were a Court of State and not of Lavv, and that it did belong to him as Lord Chancellour to inform them in matters of Lavv. Thereupon his Lordship clap­ing his hands on his breast, said, I thank God I have Courage enough to serve his Majesty.

About the latter end of July some of Mr. Jenkes his Friends attended his Lordship again, and offered him Bail in­sisting upon the Writ of Mainprize as the Subjects Right, alledging to his Lordship the hazzards that his Health, his Family, and his Trade were exposed to by his confinement, His Lordship asked them why they had not petitioned the King and Council, and told them if Mr. Jenkes thought it better to lye in Prison and Complain, than Petition and be Bayled, he might do as he pleased.

They told him they had tendred Bayl to Mr. Secretary Williamson, who promised them to move the King and Coun­cil [Page 29]in it, but when they reminded him of it upon the next Council Day, he was pleased to excuse himself. His Lorshdip told them he never heard they had tendred Bayl, but the Writ of Mainprize was forgotten in all his Answers.

They then told him, that the General Report was, that the King and Council had referred it to his Lordship, but his Lordship would take no notice of that likewise, but said, the King would advise with the Judges when they came to Town. His Lordship with-drew from them, and they left word with his Secretary, That Mr. Jenkes looked upon him­self to be his Lordships Prisoner.

On the [...] of August, Mr. Jenkes's Friends went again to my Lord Chancellours, but his Secretary told them his Lordship could not be spoken with. They prevailed with his Secretary to go up to him and remind his Lordship of his last Answer of advising with the Judges, and tell him that se­veral of the Judges had been in Town, and they did now de­sire his Lordships Resolution.

The Secretary at his Return told them, that as soon as he began to mention the business, his Lordship fell into a fit of the Stone, but when that was over, he would mention it un­to him. About two hours after they returned, and the Se­cretary being absent, another of his Lordships servants came to them and told them that his Lordship was not well, and could not be spoken with, but had ordered him to tell them, That Mr. Jenkes might advise with his Counsel what was fit to be done for he was none of his Counsel, and if he would Petition the King and Council he might, and that that was his Answer.

On the 11th. of August, being the last Council day that was to be before the 3d. of October, Mr. Jenkes thought fit again to tender Bayl to the Council, and that the Lord Chan­cellour who disowned all knowledge of his doing so before, and the whole Council might know of it, he sent this Letter by his Bayl to the Lord Privy Seal, then President of the Council, which was publickly read.

This Letter was by some improved into a Petition; and when they had given it that name, (tho that was the only thing wanting to please the Lord Chancellour, yet it could not procure the acceptance of Bayl, but the method pro­posed by his Lordship proved as ineffectuall as those that were demanded of him. The Lord Chancellours resolutions being sufficiently discovered, Mr. Jen [...]es friends forbore all farther sollicitation of his Lordship, and made fresh application to the Lord Chief Justice Rainssord, on August 18th, then just returned from the Circuit. The time of Se­ssions at the Old Bailey drawing on, They caused two Writs of Habeas Corpus to be made (the common course of remov­ing prisoners from one Goal to another) one, ad delibe­randum, directed to the Keeper of the Gate-house; the other adrecipiendum, directed to the Sheriffs of London, and desired his Lordship to sign them, that Mr. Jenkes might be removed and brought to tryall; for that the keeper of the Gate-house not Kalendering any State prisoner (as he call­ed him) at the Sessions for Westminster, he might lye there all his life time without triall, which no Subject ought to do. His Lordship excused himself upon his late return to Town which had not yet afforded him leisure to advise; and sent them to the Attorney Generall to know whether he were rea­dy for a Tryal, before he would give them any answer. Mr. Attorney upon their coming to him very worthily told them that he had no order in it, but that he would not oppose the granting of those Writs; adding God forbid but that the Law should have its due course. They returned to the Lord Chief Justice with this answer and offered to make Oath that it was Mr. Attorneyes answer, but he would give credit to nothing but a note under Mr. Attorneys own hand. They told him it was hard that a man shouldly in prison who was willing to bring himself upon tryall, that Writts of this nature were every day granted and did presume could not reasonably be denyed. His Lordship answerd he would know whether [Page] [...]r. Attorney were ready for a [...] [...]hey replyed that [...]y did not know when Mr. Attourney would be ready, and [...] Mr. Jenkes must stay for his Tryal till then, they then mo­ [...]ed his Lordship as they had done formerly, that he would [...]rant a Habeas Corpus to bring him before his Lordship, and [...]hat he would accept of substantial Citizens for Bayl, who should render him whensoever Mr. Attorney should call for him, alledging that such Writs had been frequently granted by the Lord Chief Justice Keeling, and one of the now Justi­ces of the Kings Bench.

His Lordship returned, that he did not doubt the Security they should offer him, but he had never granted such a Writ, and he knew not upon what Authority others had done it; and in short, refused to grant either that, or the other Writs.

After all these Denials of Right, Mr. Jenkes resolved to sit still, with the satisfaction, that his ill success was not impu­table to the Injustice of his Cause, but to the Pleasure or Fear of those that had the Power of making it otherwise: and with patience to expect till the Term should set open the Prison doors, which will not brook the denial of a Habeas Corpus, tho a long Vacation must.

No further Address was therefore made to either of their Lordships, but themselves, after they had taken the pleasure of denying him, were pleased to condescend to Intercede for him. For, as we received by very credible information, the Lord Chief Justice went to the Lord Chancellour; and told him, that the Writs demanded of [...]i [...] were according to Law, and could not be denyed, and that he had only taken time till he had acquainted his Lordship with it.

The Lord Chancellour directed him to the Lord Treasurer for further advice, who sent him to the King. As soon as his M [...]jesty understood that what was demanded was the Subjects Right, he immediately commanded that the Laws should have their due Course, which their Lordships had stop'd. [...]