XIX.

April, 1668, a bill to prevent the refusal of the writ CHAP. of habeas corpus was brought into the House of Commons, but did not pass. Another to the same effect was passed by the Commons, but stopped by the Lords, in the spring of 1670. But the Commons persevered, and in 1674 appointed a committee to consider the subject of commitment by the King's warrant and by the Privy Council, and sent up to the Lords a bill for the prevention of illegal imprisonment. It was stopped, like the former; and so also was a bill of the same nature in the following year. In 1676, Jenks's case called public attention to the abuses permitted under the existing state of the law and in 1679, (the Commons continuing with exemplary perseverance to press the adoption of a remedy upon the obstructive Lords,)

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"the thing, to give him a reward; and more he could not give, nor
own any
kindness done by his Grace's interest; and so parted. The
next day, Mr. Edward Savage did take the said Moyer in tax about
"it, giving ill words of this Moyer and his brother; which he, not being
"able to bear, told him he would give to the person that had en-
gaged him what he promised, and not any thing to any body else; and
"that both he and his brother were as honest men as himself, or any
"man else; and so sent him going, and bid him do his worst. It is one
"of the most extraordinary cases that ever I saw or understood, but
"it is true." Again, Pepys says, the same informant "tells me a little
"more of the baseness of the course taken at Court in the case of
"Mr. Moyer, who is at liberty, and is to give 500l. for his liberty: Lut
"now the great ones are divided who shall have the money; the
"Duke of Albemarle on one hand, and another Lord on the other,
"and that it is plain they ended by having the person's name put into
"the King's warrant for his liberty, at whose intercession the King
"shall own that he is set at liberty; which is a most lamentable
thing, that we do professedly own that we do these things, not for
right and justice sake, but only to gratify this or that person about
"the King."

* State Trials, vi. 1189-1208.*

XIX.

CHAP. the Habeas Corpus Act was at length passed. It was passed, but not without great difficulty. "The "committees of the two Houses," says Ralph, "met several times upon it without coming to any

Coercion of Jurors,

agreement, insomuch that the completion of the "bill was put off to the last hour of the sessions ; "and even then the Commons were glad to admit "of the Lords' amendments, that they might have "the merit, and their fellow-subjects the benefit, "of so useful a law."*

One of the most dangerous infringements on the liberty of the subject, which crept in soon after the Restoration, was the coercion of jurors by fine and imprisonment, when they refused compliance with the directions of the Court. The evil was progressive, and its course is thus traced by Sir Matthew Hale :-"The fines set upon grand in"quests began. Then they set fines upon the "petit juries, for not finding according to the "directions of the Court. Then afterwards the "Judges of nisi prius proceeded to fine jurors "in civil causes, if they gave not a verdict accord

ing to direction, even in points of fact. This "was done by a judge of assize (Justice Hyde, "at Oxford, Vaughan, 145.) in Oxfordshire, and "the fine estreated; but I, by the advice of most "of the Judges of England, staid process upon "that fine."+

Ralph's History of England.

+ Hale's Pleas of the Crown. Two cases are recorded in which Chief Justice Keeling fined jurors; the one, because they would not find parties guilty of keeping a conventicle, under the Conventicle Act; the other shall be given in the words of Keeling himself, who by his own

503

XIX.

Chief Justice Keeling also rendered himself CHAP. obnoxious by similar attempts to intimidate jurors. His conduct was made the subject of Parliamentary inquiry in 1667, and it was resolved that his proceedings were innovations, and that he should be brought to trial. Keeling obtained permission to be heard before the House in his own defence; after which the Commons resolved to proceed no further against him, and contented themselves with placing on their Journals a resolution, "That the precedents and practice of fining or imprisoning A bill was introduced to "jurors is illegal."* declare the fining or imprisoning of jurors to be illegal, but it did not pass the House of Com mons. It seemed as though the Commons had been actuated less by a desire to suppress a reprehensible practice, than to assail a Judge who had been promoted by Clarendon. Far from the prac tice being suppressed, or even discountenanced, the public witnessed in 1670, at the Old Bailey, more flagrant attempts to intimidate jurors, of which we

showing was clearly wrong. It was the case of "Henry Hood, indicted "for the murder of John Newen; and upon the evidence it appeared "that he killed him without any provocation, and therefore I directed "the jury that it was murder; for the law in that case intended "malice and I told them they were judges of the matter of fact, viz., "whether Newen died by the hand of Hood; but whether it was mur "der or manslaughter, that was matter in law, in which they were to “ observe the direction of the Court. But, notwithstanding, they would "find it only manslaughter; whereupon I took the verdict, and fined "the jury 51. a-piece, and committed them to gaol till they found sure"ties to appear at the next assizes!"

*Com. Journ. Dec. 13. 1667.

XIX.

CHAP. have evidence in the recorded conduct of the Court on the trial of Penn and Mead; and in the subsequent proceedings against Bushell.*

Proclama

tions.

The liberty of the subject was not violated, under the administration of Lord Clarendon, by any gross exercise of power in the issue of Proclamations. Some were indeed issued, of which the legality might be questioned-such as, in 1665, that all persons who had served in the army of the Commonwealth should retire above twenty miles from London; and, on the 13th of September, 1666, after the fire of London, that no house thenceforward should be built of wood, that the rebuilding should be executed according to a specified design, and that the Mayor and Aldermen might cause any to be pulled down which might be commenced in defiance of these rules. But these acts of power must be viewed in connection with the temporary urgency of the circumstances which called them forth. The apology for the former, was the well-grounded fear of internal commotion in a time of war, for the latter, the reasonable apprehension that many persons would attempt to rebuild the city on objectionable plans before the legislature could apply a remedy. It may also be pleaded for the latter proclamation, that it was issued at the instance of the civic authorities, so that "if ever," says Ralph, a jealous observer of arbitrary proceedings," such a strain of the prero"gative would admit of palliation, it was now,

* State Trials, vi. 951-1025.

XIX.

"when the city lay in ruins, when all were in CHAP. "haste to rebuild, and the mistakes, trespasses, "and injuries which were like to follow there"from, would probably create as much confusion "as the fire had left; and that the King sweetened "the harshness of this decree, with a signification "of his intention to part with any thing of his own, "which might render the city more commodious "or beautiful, and to remit the hearth-money duty "to all those who should conform to the terms prescribed by it."*

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It cannot be asserted in behalf of Lord Clarendon, that he was adverse to such assumptions of power. He is charged by himself with having advised a proclamation much more objectionable than those before mentioned, and with having sought to curb the liberty of speech. His self-accusation shall be given in his own words :-"One day his Majesty "called the Chancellor to him, and complained

very much of the license that was assumed in the "coffee-houses, which were the places where the "boldest calumnies and scandals were raised and "discoursed amongst a people who knew not each "other, and came together only for that commu"nication, and from thence were propagated over "the kingdom; and mentioned some particular "rumours which had been lately dispersed from "these fountains, which on his own behalf he was enough displeased with, and asked what was to "be done in it. The Chancellor concurred with

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