cretion of the court. The Case of M. 9 E. 3, roll. 39 Russell, hath been objected, to be in the point; I have viewed the record of that case, and although it be verbally, yet it is not materially to this purpose: for the commitment was by a Justice of North Wales, upon the accusation of an accuser; and it was within a short time after the statute of 5 E. 3, by which it was ordained, That none should be imprisoned upon the accusation of one accuser: but here the detainment is by the king | bimself, for stirring up of sedition. And there the return was, That he was accused of seditions and indecencies, where the latter word doth qualify the former. And there issued a Writ of good behaviour, (as the use was) to enquire of the truth of the offence; and it was found, that there was no such offence: and then upon the same return again he was set at liberty; so that the case there was special, and the manner of proceedings special. And I desire that one thing may be observed, that Russell came in here upon the Habeas Corpus, 20 Sept. but was not delivered until Hillary Term following. And for 28 H. 6, the duke of Suffolk's Case, which was objected, that the general accusation of divers treasons was not le gal. That is true, because it was in parliament, and in the nature of an accusation; and being in a court of justice, it had been unjust to condemn a man before his trial; and yet this court, upon probability of a fault, does oft tines restrain a man before conviction. But it hath been objected in this case, They have been a long time imprisoned, and no proceedings against them. It is well known, there have been some proceedings against them, and they declined them; and also more than three months is requisite for the preparation of such proceedings, and the king intends to proceed against them in convenient time. And some that were offenders in the same kind are already delivered, to wit, Mr. Coriton and sir Peter Hayman. Therefore, if any injury be done to the Prisoners, they themselves are the cause of it, for not submitting themselves to the king. And for the instance which Mr. Littleton used of the Judges in 11 R. 2, although they suffered for their opinions given to the king, I desire, that the time when their opinion was delivered, may be considered, to wit, in the time of R. 2, and the time when they suffered, to wit, in the time of H. 4. And it was the saving of a noble gentleman, the lord Egerton, That Belknap suffered rather by the potency of his enemies, than the greatness of his offence and yet it is to be confessed, that they might have given better counsel; but there was no time to dispute of the justness of their counsel, when the sword was in the hands of the conqueror. ments. The said Resolution is, That the cause ought to be certified in the generality, or specialty; and here the general cause is certi fied at least, if the special be not so: and upon the whole matter the bailment of these prisoners is left to your discretion; and I have shewed to you the discretion of your predecessors. And if any danger appear to you in their bailment, I am confident that ye will not bail them, if any danger may ensue; but first ye are to consult with the king, and he will shew you where the danger rests. Therefore upon the whole matter I pray, that they be remanded. | When the Court was ready to have delivered their Opinions in this great business, the Prisoners were not brought to the bar, according to the rule of the court. Therefore proclamation was made for the Keepers of the several prisons to bring in their Prisoners; but none of them appeared, except the Marshal of the King's-Bench, who informed the Court, that Mr. Stroud, who was in his custody, was removed yesterday, and put in the Tower of London by the king's own warrant: and so it was done with the other prisoners; for each of them was removed out of his prison in which he was before. But notwithstanding, it was prayed by the counsel for the prisoners, that the Court would deliver their Opinion as to the matter in law: but the Court refused to do that, because it was to no purpose; for the Prisoners being absent, they could not be bailed, delivered, or remanded. The evening before, there came a letter to the Judges of this court from the King himself, informing the court with the Reasons, wherefore the Prisoners were not suffered to come at the day appointed for the Resolution of the Judges. To our trusty and well-beloved, our Chief- "C. R. Trusty and well beloved, we greet you well. Whereas by our special commandment we have lately removed sir Miles Hobart, Walter Long, and William Stroud, from the several prisons where they were formerly committed, and have now sent them to our Tower of London; understanding there are various constructions made thereof, according to the several apprehensions of those who discourse of it, as if we had done it to decline the course of justice; we have therefore thought fit to let you know the true reason and occasion thereof; as also, why we commanded those and the other Prisoners should not come before you the last day. We (having heard how most of them a while since did carry themselves insolently and unmannerly both towards us and your What hath been relied upon is the Resolu- lordships) were and are very sensible thereof; tion of all the Justices of England in 34 Eliz. and though we hear yourselves gave them some which Resolution is now registered in the upper admonition for that miscarriage, yet we could house of parliament, at the request of the com- not but resent our honour, and the honour of mens, in tertio Caroli regis; but I leave it to so great a court of justice, so far, as to let the you, as that Resolution shall sway your judg-world know how much we dislike the same: and having understood that your lordships, and the rest of our Judges and Barons of our Courts of Common Pleas and Exchequer, whose advices and judgments we have desired in this great business, so much concerning our government, have not yet resolved the main question; we did not think the presence of those Prisoners necessary; and until we should find their temper and discretions to be such as may deserve it, we were not willing to afford them favour. Nevertheless, the respect we bear to the proceedings of that Court, hath caused us to give way, that Selden and Valentine should attend you to-morrow, they being sufficient to appear before you, since you cannot as yet give any resolute Opinion in the main point in question. Given under our signet, at our manor at Greenwich, this 24th June, in the fifth year of our reign." Within three hours after the receipt of those Letters, other letters were brought unto the said Judges, as followeth : To our trusty and well-beloved, our ChiefJustice, and the rest of our Justices of our Bench. “C. R. Trusty and well-beloved, We greet you well. Whereas by our letters of this day's date, we gave you to understand our pleasure, That of those prisoners which, by our commandment, are kept in our Tower of London, Selden and Valentine should be brought tomorrow before you; now, upon more mature deliberation, we have resolved, That all of them shall receive the same treatment, and that none shall come before you, until we have cause given us to believe they will make a better demonstration of their modesty and civility, both towards us and your lordships, than at their last appearance they did. Given under our signet, at Greenwich, this 24th day of June, in the fifth year of our reign." . So the Court this Term delivered no opinion, and the imprisoned Gentlemen continued in restraint all the long vacation. Towards the latter end of this vacation, all the Justices of the King's-Bench being then in the country, received every one of them a letter to be at Serjeant's-inn upon Michaelmasday. These Letters were from the CouncilTable; and the cause expressed in them was, That his majesty had present and urgent oc'casion to use their service.' The Judges came up accordingly on Tuesday, being Michaelmasday. The next morning about four o'clock, letters were brought to the Chief-Justice from Mr. Trumbal, Clerk of the Council then attending, that he and judge Whitelocke, one of the Judges of that court, should attend the king that morning so soon as conveniently they could; which the Chief-Justice and that Judge did at Hampton that morning; where the king taking them apart from the Council, fell upon the business of the Gentlemen in the Tower, and was contented they should be bailed, notwithstanding their obstinacy, in that they would not give the king a Petition, expressing, That they were sorry he was offended with them.' He shewed his purpose to proceed against them by the Common Law in the King's-Bench, and to leave his proceeding in the Star-Chamber. Divers other matters he proposed to the said Judges by way of Advice, and seemed well contented with what they answered, though it was not to his mind; which was, That the offences were not capital, and that by the law the prisoners ought to be bailed, giving security for their good behaviour. Whereupon the king told them, That he would never be offended with his Judges, so they dealt plainly with him, and did not answer him by Oracles and Riddles.'t The first day of Michaelmas Term it was moved by Mr. Mason, to have the Resolution of the Judges; and the court with one voice * Mr. Whitelocke in his Memorials, p. 13, says, "My father did often and highly complain against this way of sending to the Judges for their Opinions beforehand; and said, That if bishop Laud went on in his way, he would kindle a flame in the nation." † Mr. Whitelocke, in his Memorials of the English Affairs, page 14, says, "The Judges were somewhat perplexed about the Habeas Corpus for the Parliament-men, and wrote an humble and stout Letter to the king, That by their oaths they were to bail the Prisoners; but thought fit, before they did it, or published their Opinions therein, to inform his majesty thereof, and humbly to advise him (as had been done by his noble proge 'nitors in like case) to send a direction to his 'Justices of his bench, to bail the prisoners.' But the Lord Keeper would not acknowledge to my father, who was sent to him from the rest of his brethren about this business, that he had shewed the Judges Letter to the king, but dissembled the matter, and told him, that he and his brethren must attend the king at Greenwich, at a day appointed by him.-Accordingly the Judges attended the king, who was not pleased with their determination, but commanded them not to deliver any Opinion in this case without consulting with the rest of the Judges; who delayed the business, and would hear Arguments in the case as well as the Judges of the King's-Bench had done; and so the business was put off to the end of the Term. Then the Court of King's-Bench being ready to deliver their Opinions, the Prisoners were removed to other prisons, and a Letter came to the Judges from the king, That this was done because of their insolent carriage at the bar.' And so they did not appear.The Judges of the King's-Bench were sent for by the Lord-Keeper to be in London on Michaelmas-day; the chief-justice Hyde, and my father, were sent for to the king at HamptonCourt, who advised with them about the imprisoned Parliament-men; and both these Judges did what good offices they could, to bring on the king to heal these breaches." 6 said, That they are now content that they should be bailed, but that they ought to find sureties also for the good behaviour. And justice Jones said, That so it was done in the, Case which had been often remembered to another purpose, to wit, Russel's Case, in 9 E. 3. To which Mr. Selden answered (with whom all the other Prisoners agreed in opinion), That they have their sureties ready for the bail, but not for the good behaviour; and desire, that the bail might first be accepted, and that they be not urged to the other; and that for these reasons: 1. The case here hath long depended in court, and they have been imprisoned for these thirty weeks, and it had been oftentimes argued on the one side and the other; and those that argued for the king, always demanded that we should be remanded; and those which | argued on our side, desired that we might be bailed or discharged; but it was never the desire of the one side or the other, that we should be bound to the good behaviour. And in the last Term four several days were appointed for the Resolution of the court, and the sole point in question was, If bailable or not? Therefore be now desires, that the matter of Bail and of good Behaviour may be severed, and not confounded. 2. Because the finding of Sureties of good behaviour is seldom urged upon Returns of Felonies or Treasons. And it is but an implication upon the return, that we are culpable of those matters which are objected. 3. We demand to be bailed in point of Right; and if it be not grantable of right, we do not demand it: but the finding of Sureties for the good behaviour, is a point of discretion merely; and we cannot assent to it without great offence to the parliament, where these matters which are surmised by return were acted; and by the statute of 4 H. 8, all punishments of such nature are made void, and of none effect. Therefore, &c. Court. The Return doth not make mention of any thing done in parliament, and we cannot in a judicial way take notice that these things were done in parliament. And by Whitelocke, the surety of good behaviour, is a preventing medicine of the damage that may fall out to the commonwealth; and it is an act of government and jurisdiction, and not of law. And by Croke, it is no inconvenience to the Prisoners; for the same bail sufficeth, and all shall be written upon one piece of parchment. And Heath, Attorney-General, said, That by the command of the king, he had an Information ready in his hand to deliver in the court against them. had married his daughter and heir, but the court refused it; for it is contrary to the course of the court, unless the Prisoner himself will become bound also.* And Mr. Long, that had found sureties in the Chief-Justice's Chamber, for the good behaviour, refused to continue his sureties any longer, inasmuch as they were bound in a great sum of 2,000l. and the good behaviour was a ticklish point. Therefore he was committed to the custody of the Marshal, and all the other Prisoners were remanded to prison, because they would not find sureties for the good behaviour. Mich. 6 Car. B. R. John Selden was committed to the Marshalsea of the King's-Bench, for not putting in Sureties for his good behaviour. There were with him in the same prison, Hobart, Stroud, and Valentine. In the end of Trinity Term, 6 Car. the sickness increasing in Southwark, the three last named made suit unto the Judges of the King's-Bench, to be delivered over to the Gatehouse in Westminster, to avoid the danger. The Judges thought it charity, and by writ to the marshal of the King's-Bench, commanded him to deliver them to the Keeper of the Gatehouse, and sent him a writ to receive them. Mr. Selden never sent unto them whilst they were in town, but when they were all gone, made suit to the Lord-Treasurer to move the king, that, to avoid this danger, he might be removed to the Gatehouse; which he did, and sent a warrant under his hand to the marshal, signifying his majesty's pleasure to remove him to the Gatehouse: accordingly he was removed. Thereupon, when the Judges came to town in Michaelmas Term, they called the Marshal to account for his Prisoner, Mr. Selden; and he presenting unto them the Lord "This motion of discharging proceeded from the king himself, who had conferred with the Judges, and had declared his content the Prisoners should be bailed, notwithstanding their obstinacy, that they would not so much as present a Petition to him to express, that they were sorry he was offended with them.' But the Prisoners began now to value themselves upon their suffering, and had so much countenance from several of their late fellowmembers, that they would not now accept of a deliverance, but unanimously refused to find sureties for their behaviour: nay, Mr. Hollis was so industrious to be continued in custody, that when offered his own bail, he would not yield to the course of the Court, to be himself bound with him. And even Mr. Long, who Hyde, Chief-Justice. If now you refuse to had actually found sureties in the Chief Jusfind Sureties for the good behaviour, and be tices Chamber, declared in court, that his surefor that cause remanded, perhaps we after-ties should no longer continue. Such a merit wards will not grant a Habeas Corpus for you, inasmuch as we are made acquainted with the cause of your imprisonment. Ashley, the King's Serjeant, offered his own bail for Mr. Hollis, one of the prisoners, who YOL. III. did they now place in confinement, as to labour against their own liberty; and by such glorying in persecution to raise a popularity to themselves, and cast an odium on the king." 3 Kennet, p. 49. Treasurer's Warrant by the king's direction, THE CASE OF SIR MILES HOBART, AND WIL- 6 prison of the Gatehouse, but in the new building thereto adjoining; unless when they once withdrew themselves to a close-stool, which was placed near to the parlour, and was part of the old prison of the Gatehouse. This Evidence was given to both the Juries, and both of them returned their Verdicts severally, That they were not Guilty,' according to the Information exhibited against them. And in this case it was debated at the Bar and Bench, whether by this receipt and continuance in the new house only, it may be said, That they ever had been imprisoned? And the Judges held, That their voluntary retirement to the close-stool made them to be prisoners.' They resolved also, that in this and all other cases, although a Prisoner depart from prison with his keeper's licence, yet it is an offence as well punishable in the prisoner as in the keeper. And Calthorpe made this difference between breach of prison and escape; the first is against the Gaoler's will;' the other is with his consent, but in both the Prisoner is punishable :' whereunto the whole Court agreed. It was also resolved that the Prison of the King's Bench is not any local prison, confined only to one place, and that every place where any person is restrained of his liberty is a prison: as, if one take sanctuary and depart thence, he shall be said to break prison.* In the next parliament, which met April 13, 1640, it was referred to a committee, to con sider of the breach of privilege by sir John Finch (the Speaker), 5 Car. 1, who refused to Hobart put in sureties for his good behaviour, and so was discharged from his imprisonment. On the 23rd of January, the Attorney-General exhibited two several Informations, the one against Wm. Stroud, esq. the other against sir Miles Hobart, knt. The charge against both of them therein, was for several escapes out of the prison of the Gatehouse: they both pleaded, Not Guilty. And their cases appeared to be as followeth: The said William Stroud, * Mr. Whitlocke, in his Memorials, p. 16, and sir Miles Hobart, were by the king's com. says, "In the year 1631, some of the impr mand committed to prison, for misdemeanors soned Parliament-men, upon their Petition, alleged against them, in their carriage in the were removed from the prisons wherein they House of Commons at the last parliament. then were, to other prisons, to prevent the danAfterwards in Trinity Term, anno 6 Caroli,ger of the sickness then increasing. Sir Miles both of them being by order of this court, and by a warrant from the Attorney-General, to be removed unto the Gatehouse; the warden of Anno 1631. Sir John Walter died, a grave the Marshalsea, where they were before im- and learned Judge; he fell into the king's disprisoned, sent the said Stroud to the keeper of pleasure, charged by his majesty for dealing the Gatehouse, who received him into his house cautelously, and not plamly, with him, in the lately built, and adjoining to the prison of the business concerning the parliament-men:' as Gatehouse, but being no part thereof. After if he had given his opinion to the king privately which receipt, the same night, he licensed the one way, and thereby brought him on the stage, said Stroud to go with his keeper unto his and there left him, and then was of another chamber in Gray's-inn, and there to reside. Judgment. His opinion was contrary to all Sir Miles Hobart was also by the said warden the rest of the Judges, That a Parliamentof the Marshalsea, delivered to the keeper ofman for misdemeanor in the house, criminally, the Gatehouse, but being sick, and abiding at his chamber in Fleet-street, he could not be removed to the prison of the Gatehouse, but there continued with his keeper also. Afterwards the Sickness increasing in London, they (with the licence of the keeper of the Gatehouse, as it was proved) retired with their under-keepers to their several houses in the country for the space of six weeks, until Michaelmas Term then next following, when by direction of the said keeper they returned to his house; but in all that space it could not be proved, that they were in any part of the old 'out of his office and duty, might be only im- of Speaker not to obey the commands of the house; and that it appeared the Speaker did adjourn the house by command of the king, without consent of the house, which is also a breach of privilege; it was therefore ordered, that this should be humbly represented to his majesty. But this parliament being soon dissolved, viz. May 5, 1640, nothing was done for these Gentlemen, but in the next parliament, which met Nov. 3, 1640, reparation was ordered them; as will be shewn in the following proceeding. 130. Proceedings against Sir JOHN ELLIOT, DENZIL HOLLIS, esq. and BENJAMIN VALENTINE, esq. for seditious Speeches in Parliament: in B. R. Mich. 5 CHARLES I. A. D. 1629.* SIR Robert Heath, the king's Attorney-General, exhibited informations in this court against sir John Elliot, knight, Denzil Hollis, and Benjamin Valentine, esqrs. the effect of which was, That the king that now is, for weighty causes, such a day and year, did summon a parliament, and to that purpose sent his writ to the sheriff of Cornwall to chuse two knights: by virtue whereof sir John Elliot was chosen and returned knight for Cornwall. And that in the same manner, the other defendants were elected burgesses of other places, for the same parliament. And shewed further, that sir John Finch was chosen for one of the citizens of Canterbury, and was Speaker of the house of commons. And that the said Elliot publicly and maliciously in the house of commons, to raise sedition between the king, his nobles, and people, uttered these words, That 'the Council and Judges had all conspired to 'trample under foot the Liberties of the Sub'jects.' He further shewed, that the king had power to call, adjourn, and dissolve parliaments: and that the king, for divers reasons, bad a purpose to have the house of commons adjourned, and gave direction to Sir John Finch, then the Speaker, to move an adjournment; and if it should not be obeyed, that he should forthwith come from the house to the king. And that the Defendants, by confederacy aforehand, spake a long and continued speech, which was recited verbatim, in which were The king at first intended to proceed against the above gentlemen in the Star-Chamber, to which end an Information was exhibited against them in that court, on the 7th of May; but that being dropped, they were proceeded against in the King's-bench, and the same matters in effect were set forth as in the Information in the Star-Chamber. See the Information in the King's-bench, the Defendant's Plea, the Attorney-General's Demurrer, &c. at large, at the end of the Case, upon occasion of the Reversion of the Judgment in B. R. by the House of Lords on a Writ of Error, A. D. 1668, divers malicious and seditious words, of dangerous consequence. And to the intent that they might not be prevented of uttering their premeditate speeches, their intention was, that the Speaker should not go out of the Chair till they had spoken them; the Defendants, Hollis and Valentine, laid violent hands upon the Speaker, to the great affrightment and disturb ance of the house. And the Speaker being got out of the Chair, they by violence set him in the Chair again; so that there was a great tumult in the house. And after the said speeches pronounced by sir John Elliot, Hollis did recapitulate them. And to this Information, The Defendants put in a Plea to the Jurisdiction of the court, because these offences are supposed to be done in parliament, and ought not to be punished in this court, or in any other, but in parliament.' And the Attorney-General moved the Court, to over-rule the plea to the jurisdiction. And that, he said, the court might do, although he had not demurred upon the plea. But the court would not over-rule the plea, but gave day to join in demurrer this term. And on the first day of the next term, the record shall be read, and within a day after shall be argued at bar. Hyde, Chief-Justice, said to the counsel of the Defendants; So far light we will give you ; this is no new question, but all the Judges in Eugland, and Barons of the Exchequer, before now, have oft been assembled on this occasion, and have, with great patience, heard the arguments on both sides; and it was resolved by them all with one voice, That an offence committed in parliament, criminally or contemptuously, the parliament being ended, rests punishable in another court. Jones. It is true, that we all resolved, That an offence committed in parliament against the crown, is punishable after the parliament in another court; and what court shall that be, but the court of the King's-bench, in which the king, by intendment, sitteth? Whitlocke. The question is now reduced to ■ |