VJt v \\
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'
THE
PROCEEDINGS
AND
T R Y A L
•IN. THE CASE O F
The Mod Reverend Father in GOD
WILLIAM
Lord Archbifliop of CANTERRVRT,
And the Ri°ht Reverend Fathers in God,
o.
WILLIAM Lord Btfhop] 'THOMAS Lord Bifhop
or St. Afafb, of Bath and Well?,
FRANCIS Lord BiHiop ! ^ THOMAS Lord Bilhop
ofE/y,
Lord Bifhop of
x)f Peterborough,
And JON AT HAN Lord
Bilhop of
Cbicbefter,
In the Court of If(ings- Bench at Weft minfter, 'in Trinity -Term in the
Fourth Year ot che Reign of King James the Secondj,
Annoque Dom. i 688.
vWH?
O '
Lfccnfen ano Cntten accojuiitff to act of parliament
Printed for
L 0 1% V 0
J5a(ftfj at the Qtorge in Fleet ft reel y and
at thc^»gri inWftmtnfter-Hall. 1680.
•
T O H I S
Moft Illuftrious HIGHNESS
WILLIAM HENRY,
Prince of Orange.
May it pleafe Your Highnefs,
O W deeply the Defign was laid, and
with what Violence carry'd on by
thofe who lately Steer'd the Helm of
this State, for the Subverfion of the Eftabliflrd
Religion and Government of thefe Three
Kingdoms, is already fufficiently well known
to lour Higbnefs. Among the reft, one of their
Chiefeft Contrivances was, by a Malicious,
and Illegal Profecution, to have extinguiih'd
the JBrigtheft Luminaries of the Englilh
Church ; to the end, that the benighted
People might the more ealily, after that, have
been mifled into the Pitfals of Sttperftitm and
Slavery.
But as Heaven began their Difappoint-
ment, in eluding both at once there Subtilty
and Malice, by the fpeecly Deliverance of the
Seven Renowned Sufferers , from the Jaws of
their Oppreflors ; So the utter Diffolution of
their Arbitrary Command, and Domineering
Power, under the Conduct of the fame Pro-
vidence, was fully Compleated, Great SIR,
by Your Deliberative Prudence, and Un-
daunted Courage.
a To
To Your llluflnous Higbnefs, therefore thd
Oblation of thefe Sheets , containing an
cxa£t Accompt of the Profecution, and Tryal
of thole Heroick Prelates, is moftjuftly due,-
as being That, wherein Tour Hignefs may, in
part, diicern the Juftice of the Caufe You
have fb Generoufly undertaken ,- and that
it was not without Reafon, that the Eri-
glifh Nation fo loudly Implor'd Your timely
Aififtance. A clear convincement, that it was
not Ambition, nor the delire of fpacious Rule$
but a Noble, and Ardent Zeal for the moft
Sacred Worihip of God, which rows'd Your
Courage, to refcue a Diftreff&t Land, whofe
Religion, Laws, and Liberties, were juit ready
to have been overwhelm'd with French "tyranny,
and Komi/b Idolatry.
Therefore, that the Nation may long con-
tinue under the Protection of Your Glori-
ous Adminift ration, is the Prayer of,
Great S I R ,
Tour f/igbHeffcs moft Hurr.Ue,
Moft Faithful, and moft Qledient Servants^
Tho. BafTet.
Tho. Fox.
December
December 13. 1688.
NOT long after the Tryal« of his Grace the Lord
Archbifhop of Canterbury, and the other Six Bifhops;
and while the Paflages thereof were freih in my Memory,
I perufed that Copy of this Proceeding, and Tryal, which
Mr. luce, their Lordfhips Attorney, had caufed to be taken
for their Ufe : And I have alfo lately read over the fame
again, as intended to be printed by Mr. Baffet and Mr. Fox:
And I do think it to be a very Exact and True Copy of the
faid Proceeding and Tryal, according to the beft of my
Judgment, having been very careful in pcrufing thereof.
Job. foml
thefe
Thefe Peers were prefent, on the i $tb. Day
of Jam, i £88. when the Lords, the Arch-
bifhop and Bifhops, were brought into
Court from the Tower, upon the Habeas
Corpus.
VIZ.
Lord Marquis of Hallifax.
Lord Marquis of Worcefler.
Earl of Shrewsbury.
Earl of Kent.
Earl of Bedford.
Earl of Dorfet.
Earl of Bullingbrook.
Earl of Manfbefler.
Earl of Burlington.
Earl of Carlijle.
Earl of Danby.
Earl of Radnor.
Earl of Nottingham.
Lord Vifcount Fauconbcrge.
Lord Grey of Ruthyn.
Lord Prfge'/.
Lord Chandoys.
Lord Vaughan. Carlerj.
Thefe Peers were prefent on the Day of the
Tryal, being the ijfcfc of J^, 1688. and
the Feaft of St. P^r and St. Paul.
viz.
Lord Marquis of Hallifax.
Lord Marquis of Worcefter.
Earl of Shrewsbury.
Earl of /fe/tf.
Earl of Bedford.
Earl of Pembrook.
Earl of Ito/«tf.
Earl of BuUingbrook:
Earl of Manchefter.
Earl of Rivers-
Eafl of Stamford.
Earl of Carnarvon.
Earl of Chefterfield.
.Earl of Scarfdale. .
Earl of Clarendon.
Earl of
Earl of S»,
/»
Earl of Radnor.
Earl of Nottingham.
Earl of Abington.
Lord Vifcount Fauconberge.
Lord Newport.
Lord Grey of Ruthyn.
Lord /dge/.
Lord Chandoys.
Lord Vaughan Carbery.
Lord Lumley.
Lord Carteret.
Lord Ofulfton.
Tis poOible more of the Peers might be prefent both Days, whofe
Names, by reafon of the Croud, could not be taken.
c-o
De Termino Santta frimtatis Anno Regni Jacob! Se°
cundi Regis, Quarto, In Banco Regis.
Die Veneris Decimo Qmnto Die Junii, 1688.
Dontinttt Rex verjus Archify. Cahtnar. & ail.
Sir Robert Wright Lord Chief Juftice
Mr. lattice Holloway
-\/i T A- T> ii S udges.
Mr. Juftice Powell , ' J
Mr. Juftice Allybone
T
HIS being the firft day of the Term, His Majefties Attorney Generalj ( as
fopn as the Court of Kings Bench was fat) moved on the behalf of the
King for a Habext Corfut, returnable immediate, directed to the Lieutenant
of the Tower, to bring up his Grace the Lord Arch-Bifhop of Canter-
bury ^ and the Bifhops of St. Afaph^ Ely, Chichefter3 Bath and Wells^ Peterborough^ and
Briflbl; which was granted.
And with great difpatch about eleven a Clock the very fame day the Lieutenant
returned his Writ,, and brought the faid Lord Arch-Bifliop and Bilhops into
Court, where being fet down in Chairs fct for that purpofc, Mr. Attorney-'-
General moved the Court. Vi\,
Mr. An. Gen. My Lord, I pray that the Writ and Rctorn may be read, by which
my Lords the Bilhops arc brought hither.
Lo.Ch. Jufl. Read the Retorn.
Clerk, reads the Retorn, which in Englijb i<s as follows, viz.
I" Sir Edward Hales Baronet, Lieutenant of the Tower of London, named in the Writ to
[^ tblt, Schedule annext, To Our Moft Serene Lord the King do mojt humbly ctrtifie, That
before the coming ofthejaid Writ, to jwf, the Eighth day of June, in the Fourth Tear of the
Reign of our Lord Tames the Second, King o/ England, Sic. William Lord Arch-bifhop
of Canterbury, William Lord Bifhop of St. Afaph, Francis Lord Biftlop of Ely_,
John Lord Bi hop of Chicheftcr, Thomas Lord Bifliop of Bath .ind Wells, Tho-
mas Lord Billiop of Peterborough, and Jonathan Lord Btthop of Briftol, memionediii
the aforefaid Writ^ jrere committed and delijuf-ed to, and are rst M/IC d in in\ CujJody -, b\ I'ei -
tue of a certain Warrant under the Ha>id^ and Sea's of George Lord Jeffries, Kdron of Wem,
Lord High ChatceltorofEpglzndy Robert Earlof Sunder land. Lord ttcjident ofthe Pri-
•vy Council of our Lord the King^ Heary Lord Arundcl of Warder, Ktffer of the Pi^
Seal of our faid Lord the K.i>t^ ; William Marquefs of Powis, John Earl of Klulgrave,
Lord Great Chamberlain of England ^ Theophilus iar/o/Huntingtou, Henry Earl of
Peterborough, William Earlof Craven, Alexander Earl of Moray, 'Charles Earl of
Middlcton, John Earl of Mclfort, Roger Earl rf Caftlemain, Richard l-'ifwunt
Butler, Knight, Lords of his Majefties Afoft Honwrall" Pi>>,\ < off tlirfffeti
Tenor ofvhich Warrant fj" n>i :I'c>-J.-. • V\
1
rt " pH 1 "> 1: arc in hiv Majcftics Name, and bv 1m Comman<i rp require you to
xt I M!CC into your Cuftody the Perfons or" It'iUhim Lord Arch-bifliop ot" C&ntrrbu-
' I '; //;,:« Lord Bilbo;) ot St. Afjpb, FAMC/I Lord Bifhop of Ely. John Lcid Bifhop
<:h:cki1ifr, 'Tfamif Lord Bifhop of Bath and /TV/A, Tfeoawj Lord BMbbpof /V-
: . rjf/wtf Lord Bjlnop of Bi ///&/, For Contriving, Mining and Pul-lifhittqi
l< i&u'ififMu 1//W M If'ritiap j$unll hi* Majejiy und hi* Government* and them lafejy to
*' keep in vourCuftody until they Hull be delivered by due Con r fie of Law-, For
" which this ftnll be your fofiicicnt Warrant. At the Council Chamber in iVhitt-
" /&//, this Eighth day of June, 1688. And this is the Caufc ot the taking and
*' detaining, frc.
LnrJ Ch. Jufl. Well) What do you dcfire, Mr. Attorney ?
Mr. Att. Gen. We pray for the King, that the Return may be filed.
/.. Ch. Juft. Let it be filed.
Air. Att. Gen. By this Retofn your Lordfhip obfcrves, what it is ray Lords the
F ifhops were committed to the Tower for •, it is by Warrant from the Council
Board, where, when their Lordfhips appeared, they were not pleafed to give their
Recognizances to appear here, as they were required by the King to do $ and there*-
Upon they were committed to the Tower, and now come before the Court upon
this Retorn of the King's Writ of Hubou Corjw and by the Rctorn it docs appear,
it was for Contriving^ Writing^ Framing aftd Pullifhing a Seditiwf IJbfll againft His
Majefty and the Government •, My Lord, it is our Duty, who are the King's Councel-,
purfuant to our Orders, to profecutc luch kind of Oftences, and when the proper
timciliall come for uj to open the nature of the Offence, your Lprdfhips will then
judge, whatreafon there is for this Profccution •, but in. the mean time, what we arc
now to ofitr to your Lordfhip is. The Officer- of this Court has an Information
againft his Grace the Archbiuiop of Canterbury, and the reft of my Lords the Bi-
(hops, which we dclire may be read to them, and pray that they may plead to it,
according to the Courfe of the Court.
Sir Rob. Sawyer. If it pleafe your Lordftup, to fparc us a wor"d for my Lords the
Bjfhops.
Mr. Ait. Gen. My Lord, We pray for the King the Information may be read.
Sir Robi Sa&yer. We delirc to be heard a word firft.
Mr. Soil. Get* We oppofe your fpeaking any thing, till the Information hath
been read.
Sir Rob. Sanyer. But what we have to offer is proper before It be read.
Mr. Att. Gen. Your time is not yet come, Sir Robert.
Sir Rob. Sawyer. Yes, this is our proper time, for what we have to fay, and there*
fore we move it now, before there be any other proceedings in this matter.
Mr Soil. Gen. It is irregular to move any thing yet, pray let the Information be
read firft.
Mr. S. Pemberton. If your Lordlhip pleafe to fpare us, we will offer nothing but
what is fit for us to do.
Sir Rob. Sairyer. And now is our proper time for it.
Mr. Soil. Gen. Gentlemen, You do know the way of Proceeding in fuch Cafes bet-
ter than fp, 1 am fure, as for you, Sir Robert Sawyer } you have often oppoi'd any
fuch Motion as irregular, and I hope the Cafe is not altcr'd, however you may be *
the courfe of the Court is the fame.
Sir Rob, Sawyer. With fubmifiion, if your Lordfhip pleafe to fpare me a word,,
that which I would move, is, to difcharcc my Lords the Biihops upon this Return,
and from their Commitment upon this Warrant.
Mr. Att. Gen. Surely thefe Gentlemen think to have a Liberty above all other
People i here is an Informationj which we pray my Lords the Biihops may hear
r.ad, and plead to.
Mr. Soli. Gen. Certainly^ Sir Rob. Sawyer, you would not have done thus half a
year ago.
Sir wb.Saifyer. What would not I have done ? I move regularly (with Submif-
fion) to difcharge my Lords the Bifeops from their Commitment -, If they are not
here legally Imprifoncd, now they arc before your Lordfhips upon this Writ, then
you will give us leave to move for their Difcharge, before any thing clfe be faid to
them •, and that is it we have to fay, to demand the Judgment ot the Court upon
this Return, whether we arc legally Imprifoncd ?
Mr. Att.
Mr. Att. Gen, Under favour, my Lord, neither the Court, nor they, are ripe-
for any Motion of this Nature yet.
Mr. S. Pemberton. If we do not move it now, it will afterwards (I fearj be too latei
Mr. Soil. Gen. Thcfe Gentlemen arc very forward, but certainly they miftake their
time ; this is a Habeas Corpus that's brought by the King, and not by the Prifoners -,
and therefore they arc too foon, till they fee what the King has to fay to them.
Mr. Att. Gen. Your Lordfhip cannot as yet be moved for your Judgment about the
Legality of this Commitment, becaufe this Writ was granted upon our Motion,
who are of Counccl for the King, and upon this Writ they arc brought here •. and
what is it we defire for the King ? Certainly nothing bur what is Regular-, we have
here an Information for the King againfl my Lords, and we defire they may plead
to ir.
Mr. S. Pemberton. Good my Lord, will you plcafc to hear us a little to this M-atrerl
L. C. Juft. Brother Pembmon, we will not refufe to hear you by no means, when
you fpcak in your proper time, but it is not fo now •, for the King is pleafed, by his
Attorney and 5o//ic«or, to Charge thefe Noble Perfons, my Lords the Bifhops, with an
Information, and the Kings Councel call to have that Information rcad> but you
will not permit it to be read.
Mr. S. Pemberton. Pray my Lord fpare us a word : if we arc not here as Prifo-
ners regularly before your Lordfhip, and are not brought in by the due Procefs of
the Court, then certainly the Kings Councel., or the Court have no Power to charge
us with an Information •, therefore we beg that you will hear us to that, in the firlt
place, whether we arc Legally here before you ?
Mr. Soli Gen. Thcfe Gentlemen will have their proper time for fuch a Motiori
hereafter.
Mr. Pollexfea. No, Mr. Soil, this is, without all 'Quejftion, our only time for itt
we Hull have no time afterwards.
Mr. Att. Gea. Yes, you will, for what do we who are of Councel for the King
now ask of the Court, but that this Information may be read ? when that is done,
if we move to have my Lords the Bifhops plead, then they may move what they
will •, but before we make that Motion} they cannot break in upon us with their
Motion i and with Submiffion to your Lordfhip, whether my Lords the Bifhops
were duely Committed, is not yet a Queftion.
Mr. Finch. But it is, and this the fitted time for it.
Mr. So//. Gin. Pray will you hear us quietly what we have to fay, and then an-
fwer us with Rcafon, if you can -, I think we are in a proper way, but they are not
my Lord -, for (as I faid.) my Lords the Bifhops are brought by the Kings Writ up-
on our Motion for the King, not upon theirs, and now we have them here before
the Court, We for the King would charge them with an Information -, which In-
formation, that they and the Court may know what it is they are charged with, we
pray it may be read to them by the Clerk ^ and when it is read? let thefe Gentlemen
fay what they will for them, they fhall have their time to fpeak ; but certainly they
ought not to obftruft the Kings Proceedings, nor oppofe the Reading of the Infor-
mation to thefe noble Lords, who arc brought here in Cuftody into Court, to this
very purpofe, that they may be charged with this Information.
Mr. 5. Pembmnn. But we have fomewhat to fay, before you can come to that,
i * , • 1 1 . • j * *
Mr. iolhcitor.
Mr. Sett. Gen. You ought no: to be heard as yet.
M. 5. Pemberton. Under favour we ought to be heard.
Sir Rob. Sawyer. My Lord, Mr. Soliicitor has oppofcd our being heard, but we
now defire he would hear our anfwer to it, and that which we have to fay, is this^
That my Lords the Bifhops are not here Regularly in the Court to be charged with
an Information •, and if the Law be not with us in this point, as we doubt not to
make appear it is, no queftion but when your Lordfhip has heard what we have to
fay, you will give a Right Rule in it .- My Lord, we fay, that by the Rules of
Law, no man ought to be Charged with an Information or Indidtment, by the Ex-
prefs Statute of Edward the Third, unlcfs he come into Court by Legal proccfs-,
that is a ftanding Rule, and the practice of this and all other Courts is purliiant to
it -, Now in this Court you have fevcral proccfTes that go out of this Court, and he
that comes as taken by vcrtue of a Cafias9 or an Attachment after a Summons, or
by t'enire in the nature of a Subp-rui ^ I lay, he that comes in upon thcfc proceiTes,
may be Charged with an Information ; but where a pa-fen is in Prifon 4 Committed
L4 J
. . ' ., and another Authority, then that of this Court; when
: I rilbiicr "i\ brought here by Habeas Corfu*, the firft thing the Court has to do, is
enquire whether he be Legally Committed; to that end the Return is filed, and
E party has leave to make his txccptions ro it, as we do in this Cafe. My Lords
'
arc brought here upon a Habes* Corjw*, the Return of which has been read, and now
rhc Return is riled, we arc proper to move, that my Lords may be difchargcd -, tor
YOU now fee what they arc Committed for, it is for a Mifdemeanour in making and
publiilu'ug a Libel, that's the matter for which they are Committed •, and it ap-
pears I •. the Return likcwifc, that they who arc thus Committed arc Peers of the
Realm, for fo my Lords the Biftiops all arc, and for a Mifdemeanour they ought
not by Law to have been Committed.
Z.. C. J. You go too far now, Sir Robert Sarryer, I would willingly hear you what-
foevcr you ha"C to fay s, but then it muft be in its due time.
Mr. An. Gen. This very difcourfe ( indeed I have heard) has pafsd up and down
the Town for Law i We may fee now whence they had it.
Mr. So/. Gen. 1 know it has heretofore been urged by me, but dcnycd by them
who now urge it, and I am glad that they now learn of rue to tack about.
L. C. J. Look you Gentlemen, do not fall upon one another, but keep to the
matter before you.
Mr. S. Ptmberton. So we would, my Lord, if the Kings Counccl would Jet us;
Firft, we fay, we being brought here upon a Return of a Habeas Corpus, there was
neither at the time of the Commitment Caufc to Imprifon us, nor was tncrc by the
Warrant any Caufe to detain us in Prifon •> and for that, befides what has been
hinted at, we fay fijrther, that here J£ is returned, that we were Committed by fuch
and fuch Pcrfons, Lords of tb^fflfvy Council i but the Return doth not fay, that
it was done by them, as L«?i<t of the Privy Council, which muft be in Council ;
for if it be not in Councilyfney have not power to make fuch a Warrant for the
Commitment of any Perfon, and that we ftand upon •, here is a Return that is
not a good Return of a Legal Commitment, and therefore we pray my Lords may-
be difchargcd.
M>: Pcllfxfen. Piay, my Lord, fpare me a word, that is the thing we humbly of-
fer to your Lordfhips Confidcration •, and under Favour, I think we are proper Doth
as to tnc Matter, and as to the Time ; the Return is now filed before you : if by this
Return there appears to have been fuch a Caufe to Commit thcfe Lords to Prifon,
ns is Legal, then we acknowledge they may in a Legal Courfc be brought to anfwcr
for their Offence ; but, with Submiflion, it appears not by any thing that is in this
Return, that my Lords the Bilhops were Committed by the Order of the Privy
Council. All that is laid, is, That they were Committed 'by my Lord Chancellor,
and thofc other Perfons, named Lords of the Privy Council ; which we conceive is
not a good Return, for they can do nothing as Lords of the Privy Council, except
only as they arc in Council, and by Order made in Council, except that do appear,
they have no Power to Commit •, then take the Cafe to be fo ; here is a man Com-
mitted by one that has' no Authority to Commit him, and he is brought by Habeas
C.orfns into this Court, what frail the Court do with him? Shall they charge him
with an Information ? No, it docs appear that he was never in Cuftody, but under
.1 Commitment, by thofc who had no Legal Power to Commit him; and there-
fore he muft be discharged -, and that we pray for my Lords the Bifhops. What the
Kings Counccl may have to lay to them afterwards, by way of Information or other-
wilc, they muft take the Regular Methods of the Law to bring my Lords the Bi-
ihops to anfwcr ; but as the Cafe ftands here before you, upon this Return, it doc?
appear, the}1 had no Authority to Commit them, bv whole Warrant they were
.Committed •, and therefore this Court has nothing to do but to difchargc them.
Mr. Finch. I beg your Lordftips leave to fay one word farther on the lame fide, I
tliink with humble Submifiion, this is' the moft proper time for us to make this Mo
:i, for here is a A/j.Wv forr;^ Rctiirnrd, this Return is tiled, and thenthe Ku .
c to Charge my Lords the Bithons with .in Information, that Motion of
t.'ieirs ( we lay ) is too loon, unlcS my Lords are here in Court, 1 mean Legally
in Court ; for no man is irt Conrr fo as to be liable t > be charged with an Indid-
Ti~ * I* t • j i T i /"
.5
rhent •, and two Objections we have to ft, The one is, that the Pcrfons Commit-
ting had no Authority to commit, for the Return fays, that it was by Vcrtue of a
Warrant under the Hands of fuch and fuch, beiiig Lords of the Council, and they
( we fay ) have no Authority to do this i The other Objection is, that the Fact
tor which they were committed, they ought not to have been Imprifoned for : the
Fa£t charged upon them is in the nature of it a bare Mifdemeanour, and for fuch
a Fact it is the Right of my Lords the Bifliops ( as Peers of the Realm ) that they
ought to be ferved with the uiiial Procefs of Subptzna, and not to be committed to
prifon. Thefe are the two Objections that we have to this Return, and this is
(under favour/1 tlie proper time for us to make this Obje6tion, before the Kings
Councel can charge my Lords the Bifhopswith an Information.
L. Cb. Juft. What fay you to it, Mr. Attorney ?
Mr. An. Gen. With fubmiffion, my Lord, thefe Gentlemen have out of courfe
and prepofteroufly let themfelves in to this Difcourfe, and when all is done,: we mud
Recurr to that which we moved to your Lordihip before, tedcfire that your Lord-
fiiip would order the Information to be read, and when we call my Lords to
plead to the Information, then will be their proper time to make this Objection j-
ifor 'tis a fhrange thing certainly for men to make Objections before they know
what it is that they are charged with •, They fay, the ground of their Motion is,
bccaufe my Lords the Biihops are here in Court upon the Return of an Habeas
Corpus, and therefore they come in upon a Commitment ( as they fay ) for that
which they ought not to be committed for at all, and we cannot cnarge them un-
lefs they be properly in Court. Now for that it is true, if that Commitment of
theirs were the only thing that was here before the Court, then the Court would,
if that Commitment were Illegal, difcharge them of that-, but when a man is
prcfent here in Court,, brought into Court, let him come how he will, he
is not to have any longer time then that Inftant to appear to, and be charged
with the Information •, 'Tis true, upon a Subpoena, which is in the Nature of a Sum-
mons, there a man hath ( as it were ) an Effoyn, and may make his Excufe, and
he (hall have time -, but when he is prcfent in Court, either as a Perfon priviledged,
as an Officer, or as a Prifoner, he (hall be charged prefently ; and thefe Gentle-
men are not to let themfelves into Invectives againft the Commitment, thereby to
keep off their being charged with the Information. Befides that, it is itrange thefe
Gentlemen (hould know the Priviledge of my Lords the Bifhops as Peers, better
then all the Lords of the Council, who are moft of them themfelves Peers, and
they that make the Objection fhould have considered, whether thefe Lords that
made the Commitment, did not think themfelves concerned in all the Priviledges
of Peerage, as well as thefe fcven Noble Lords ?
Sir Rob. Sawyer. Is that an Anfwcr to our Objection, Mr. Attorney ?
Mr Att. Gen. I fay, it is a ftrangc Objection, and 1 anfwer, 'tis out of due time ;
for this we fay, that my Lords the Bifliops being now here in Court as Prisoners
upon a Commitment, and we defiring to charge them with an Information, you
are no: to examine the matter of their Commitment, and therefore I do infift upon
it, that the Information fliould be read, and then you will confider, whether they
are not bound to plead to it.
Mr. Finch. My Lord, I hope Mr. Attorney General will not think Legal Objecti-
ons to be Invectives.
Mr. An. Gin. Truly I know not what you call Legal Objections, I do not think
yours are fo, nor do I think Legal Objections are Invectives^ but I ufed that Ex-
preffion, as very proper far what you urged againft the Commitment.
L. C. J. Nay. Gentlemen, don't quarrel about words.
Mr. Finch. My Lord, we would not willingly have Words given us to quar-
rel at.
Mr. Sol/. Gen. My Lord., the Queftion is, whether we are in the right Me-
thod of Practice, as to the Courfe of the Court, or they ? It may be thefe
Gentlemen think to make us angry, and take Advantage of our being in a
Paflion.
Mr. Finch. Mr. Sollicitor, we defire to have our Objections anfwered.
Mr. Soil. Gen. Nay, if you begin to be angry, Gentlemen, we can be an-
gry too.
L. C. J. I would have neither of you be Angry.
C Mr: M.
[6]
!••}>. .c ;'. Gen. It fccms they would have an Anfwcr to tlicir Objections, but
will nor fuftcr us to give it i they would rlrft examine whether my Lwls the
Bilhops have been duly Committed, that ( we fay ) is not to be done by the
Court as yet ; your Lord/hip ices they arc actually in Ctiftody , by a Com-
mitment of the 'Lords of the Council, that appears by the Return before your
Lordjlip and for what they were Committed, what do we now pray for the
King? Firft, we move for a Habeas Corpus, then that this Information may be
read, and all is in Order to bring this Fad}, ( for which they were Com-
mitted ) to a Trial ; >is laid upon the Return, they were fcnt to the Tower,
for Contriving, Writing, and Publilhing a Seditious Libel againft the Kings
Perfon and Government, which ( I think ) is Crime enough for .a man to
defcrve to be Committed for ; they would have you to difcnarge thcfc Lords
from this Commitment, ( the Return, as they fay, being not Legal ) before
the Information be read -. But we think their Motion is Irregular, for here is
a Crime charged in the Commitment, and upon that Commitment they are
here now as Criminals before your LorJfbip; and Mr. Attorney has, exhibited
an Information for the King, which is in the Nature of a Declaration at the
Kings Suit •, and that in this Court, which is the Supreme Court now in being
for the Trial of Matters of this Nature. We will come to that Qucftion,
whether they were legally Committed, when there is a proper time for it j
but now we find my I.^rds the Bifhops in Court, upon a Commitment for a
§reat Crime \ I repeat it again. It is for Contriving, Writing, and Publilhing a
editions Libel againtl the Kings Perfon, and againft the Kings Government ;
and whether the Kings Counfcl ftiall not have leave to make out this Charge
by an Information, lure can be no Qucftion at all in this Court -, I hear them
mention the Statute of Edward the Third. But that is not at all to the purpofc,
That is but what was offered in another Cafe that may be remembred, and of-
fered by way of Pica, and prcfled with a great deal of Earncftnefs, but Rejected
by the Court -, and now what could not be received then by way of Plea, thelc
Gentlemen would by their Importunity, have you receive by way of Parole at
the Bar -, I fuppofe the Deiign is to entertain this great Auditory with an Ha-
rangue, and think to perfwade the weak men of the World, ( for the wife are
not to be impofed upon ) that they are in the Right, and we in the wrong ^ un-
der Favour my ZW, we are in the Right for the King, we defire this Infor-
mation may be read, and let them plead what by Law they can to it, according
to the Courfc of the Court ; but that which they now urge, is untimely, and
out of Courfe.
Sir Rob. Sawyer. My Lord, we offer this to your Lordfliip —
Mr. Att. Oert. Why Gentlemen, you have been heard before your time already.
Mr. S. Pemberton. Pray, my Lore/, give us leave to anfwer what the Kings Coun-
fel have objected.
L. C. J. The Kings Counfel have anfwered your Objections, and we muft not
permit Vying and Re-vying upon one another ; if you have no more to fay, bur
only as to the Matters that have been urged, you have been heard to it on both
fides already.
Mr. S. Pemberton. I would, if you pleafe, anfwer what has been objected by
the Kings Counfel, and ftate the Cafe aright.
Mr. Juft. Allybone. Brother Penbertony I do not apprehend that the Objc-
ftion you make agarnft this Commitment has any weight in it. The Obje-
ftion C as I take it ) is this, that thele Lords were not legally committed, be-
caufc they were committed ( fays the Return ) by fuch and fuch Lords of the
Council particularly named, and it does not fpecific them to be united in
the Privy Council •, now truly, with me that fcems to have no weight ac
all i and I will tell you why. If my Lord Chief Juftice do commit any Perfon,
and fct his Name to the Warrant, he does not ufe to add to his Name,
Lord Chief Juftice., but he is known to be fo, without that Addition; and
would you have a different Return from the Lieutenant of the Tower to a
Habeat Corpw*, than the Warrant it felf will jultifie ; the Lords do not ufe to
write themfelvcs Privy Cpunfellors, they are known to be fo -, as well as a
Judge, who only writes his Name3 and does ntoi'iifc ro toake the addition ot
his Office.
, Sir Rob. Sawyer. Pray, my Lord, give me leave to be heard to this, I think
truly ic is a weighty Objection, for, under Favour, we Jay, it muft upon the
Return here appear, that they were lesally committed, before you can charge them
with an Information ^ I do not take Exceptions to the Warrant, becaufc it is fub-
fcribed by fuch Lords, and they do not write thcmfelves Lords of the Council, they
need not do that •, and the Return has averred that they are fo •, But the Return
ought to have been, that it was by Order of the Privy Council, and fo it muft be,
if they would (hew my Lords to be legally committed, that they were committed
by Order of the Privy Council, and Hot by fiich and fuch particular Perfons, Lords
of the Privy Council ^ fo in the Cafe put by Mr. Juftice Allylone, of a Commit-
ment by your Lordihip, or any of the Judges -, it muft be returned to be by fuch a
Warrant, by fuch a One Chief Juflice, for that fhews the Authority of the Per-
fon committing, and then your Lordfhips Name to it indeed is enough, without
the Addition i out if it does not appear by the Return that there was furncient Au-
thority in the Perfon to commit, your Lordfhip cannot take it to be a Legal C om-
mitment ; But now in this Cafe, they could have no Authority to commit but in
Council •, and this Return feems to make it done by them as particular Perfons,
and that's not a good Return ( with your Lordfhips favour ) upon which thefe Re-
verend and NMe Lords can be detained in Prilbn •, But what do they on the other
fide fay to this ? Why, we (hall be heard to it anon : but, my Lord, they very well
know,' it would be too late for that Effect which we deli re of our Motion, and
therefore we lay the Objections before you now in its proper time ( fay we) you
ought not to read any Information againft us, becaufc we are not legally here be-
fore the Court :, and fur-e, that which was faid by the Kings Cbuncel, that your
Lordihip may charge any One that you find here in Court, which way focver lie
comes in, cannot be legal.
Mr. Ait. Gen. Who ever faid fo ?
S'r Robert Sawyer. I apprehended you faid fo, Mr. Attorney, or elfe you faid no-
thing.
Mr. Alt. Gen. Sir Robert Samyer, You of that fide have a way of letting your felves
in, to fay the fame things over and over again, and of making us to fay what you
pleafe.
Sir. Rob. Sawy'r. Truly I did apprehend you laid down that for Doctrine, which
1 thought a very ftrangc One ^ for we fay, with your Lordfnips favour, he that is in
Court without a Le%al pncffs, ii not in Court fo as to be charged with an Information.
5. Paabtrtto. My Lord, It is not the Body being found here that intitlestlie C ourt
to proceed upon it, but the pcrfon accufed is to be brought in by Legal Procefs :
Then if we be not here by Legal Procefs, the Information cannot be charged upon
us j and if we fulVcr it to be read, it will be too late for us to make this Objection.
L. C. J. That you have all faid over and over, and they have given it an An-
fwer.
Mr. Att. Gen. Pray, Mr. Serjeant, wiil you make an end} you have repeated your
Objection over and over., I know not how often, and will never be contented with
our Anfwer.
Mr. 7- Allyb. Sir Rob. Sawyer, That which you faid in Anfwer to the Cafe I pur,
mcthinks does notanfwcr ic : For if the Return be as good, that it was by a War-
rant from fuch an one, Lord Chief Juftice •, as if my Lord Chief Juftice had added the
Title of his Office to his own Name, when he fubfcribed the Warrant : Then
this Return, That this was done by fuch and fuch Lords of the Council, muft be as
good, as if they had added that to their own Names.
Sir Rob. Sarvyer. That is not our Objection.
Mr. An. Gen. Your Objection has been heard, and anfwered -, we pray the Infor-
mation may be read.
Mr. Ser'}. Pemberton. No, we arc not come to that yet.
Mr. J. Myb. Pray, would you have an Averment by the Lieutenant of the Tower,
m his Return to an Habe& Corpws, that it was done by them in the Council-Cham-
ber.
Mr. Finch. My Lord, The Difference is this, with Submiffion ; a Commitment
by Sir Rob. Wright, Ch Juftice, is a good Commitment, and a Return of that Na-
ture, were a good Return, becaufe he is Chief Juftice all over England, and hath Au-
thority to commit wherever he is •, but a Commitment by fuch an one, or fuch and
fuch Lords of the Privy-Council, cannot be a good Return of a Commitment -, bc-
cauie,
[8]
caufo, though they be Lords of the Council, yet neither /ingle, or apart, nor all to-
gether, have Authority to do fucli an Aft, unlefs they be alicmbjed in the Privy-
*> iimcil-, there their Authority isdrciutifcribcd-, fo that that mud needs he a. urcat
difference between a Commitment made by a Judge, who is always fo, and a Com-
m'cmcntby a Lonl, or fo many Lords, by the Name of Lords of the Privy-Coun-
uot their Authority about with them, but arc limited to their Af-
L'mMy in Council.
Mr 7- Allyb. Mr Finch, Indeed your Objection is worth fomething, if my Lord
Chief Juih'cc could not act but as under the charafter of Chief Jtiltiec-, for you
are now arguing, that thcfc Lords could not do this Aft, but as Lords of the Coun-
cil, in Council \ the fame (fay 1) may be laid of a Commitment by the Lord C
LilticCi he cannot do it but under the formality of his Authority, as he is Chief
J'ifKce, unlefs you will make it importable for him to do any thing, but as Chief
J ilh'cc, or unlefs you make it impoffiblc to feparate his I crfon from his Autho-
rity
Mr. Finch But, Sir, the difference lies here •, the Authority of the one is general
and univcrlal, and gocth with him wherever he goes ; the other's Authority is li-
mited to a particular fphere
Mr 7- Ail)!'. Why, would you have it averred. That they did k being afiem-
blcd in Council ?
Mr Fmch Under favour, they cannot juftifie any thing that was done by them
as Lords of the Council, but in the Privy-Council.
Mr. 7- Po&tl. Truly, my Lord, for my part, I think there is no fuch great ne-
cclTity of hafte in this matter -, Here are Exceptions taken to this Return v and the
matter tranfaftcd now before us, appears to me to be of very great weight, perad-
vcnturc a greater, or a weightier, has not been agitated in tnis place in any Age ; it
concerns thefe Noble and Reverend Lorris, in point of Liberty: it comes fuddenly
upon us, and therefore, my Lord, 1 think it very fit we ftiould consider a little of
this matter, and confuh the Precedents of Returns, how they are ^ for there arc
multitudes of Returns of Writs of Habeas Corptts in this Coi;rt ; therefore /t were
requisite, that we did confult the Forms of other Returns, and how the Precedents,
as to this matter, have always been : if they are according as this is, then all is
well; but if they be otherwife, it is fit we mould keep to the ufual Forms.
L. C. 7- Whats your Opinion of it, Brother Ally (we?
Mr. J. Allyb. I anifti'll of the fame mind I was, mv Lord, That he could make
no Return, but this Return he has made -, and if his Warrant was infufficient upon
this Account, that thcfe particular perfons, Lords of the Privy-Council, did this Aft
without faying, that they did it in Privy-Council, then 'tis not his Return that could
mend it i and truly I do not know that there does need any I reccdent for this ; for
every one knows where the Lords of the Council are-, and 'tis a fufficient Averment,
this, that is in the Return
Mr. Pollexfen. They are Lordsof the Council every wheic, but they do notaft as
Lords of the Council any where but in Council
Mr. J. Allyb. So my Lord Chief Juftice is Chief Juftice everywhere.
Nir. Finch. And he can dp Judicial Afts, as fuch, every where ; but the Lords of
the Council canno. aft but in the Council.
Mr. 7- Allyb. Nor is it to be prcfumed that they did do it.
Mr. Finch. It is not a prcfumption that is to make any thing in this cafe, but the
Quell ion is, whether here be a legal Return of a legal Commitment ?
Mr. 7- All)b. Such publick Perfons, in fuch publick Afts, can never be prcfumed
:o aft in their Icparatc private capacities.
M . Finch. Biit, with fubmin*ion,your Lordfhips can judge only what is before you
in thi', Return, whether it be a good Return, and whether here be a good Authority
itcd in the perfons that did commit my Lords the Bifhops.
L.C. J. Truly, as to this Objeftion and Exception that has been made by them,
I have confidered of it, and what has been faid on all fides, and 1 think 'tis the ufu-
al way of Commitment-, I never faw any other ^ all the Warrants that ever I
lav/, arc of this Form •, if there were any Precedents, they fhould be (hewn of that
fide.
S:i --Rdm S-M\tr. There are multitudes of Precedents othcrwifc, and none of
Lorm.
L. Ch. Jufi.
i-pect
fidcring of.
Mr. Sol. Gen-. There's n<3 colour for it3 if they do but look upon the Statute of the
j 6th and \jtb of the late King j which arraigns the Proceedings of his rrivy-Counj
cil •, that tells you what things belong to the cognizance of the Privy-Council, and
what not •, and there- you have all the Uiftin&ions about; Commitments by the King
and Council, and by the Lords of the Council .- And that Ad will fhew, that this
is a Commitment according to the ufual Form : They know very well what the
common Style of the Orders and Commitments of Council is, as in other places,
and other Commitments -, By fuch an one, Chief Jufticg, that is the Style that is
very well known for fuch Warrants : So a Commitment by fuch and fuch, naming
them particularly, Lords of the Council, that's an Order made by the Lords in Council ;
and that Statute difiinguifhes between Commitments of one fort and the other -, and it
Cioesit, becaufe fometimes Warrants run in one form, and fomeiimcs in another 5
but they all come within the Direction of that Statute. My Lord, we are in a plain
Cajej my Lords the Bifliops come Regularly before you, upon a Commitment by the
Council; and therefore we pray they may be charged with this Information.
Sir Robert Sawyer. Pray, will your LordQiip give us leave to have that Statute lookc
into, which Mr. Sollichor f peaks of $ and then we (hall fee whether it be to his pur-
pofe.
L C. J. Let the Statute be read.
Mr. Sol. Gen. If 'it bcKeeble's Book, it is the idtb of Charles the Fj'rft ; if it be
the Old Book, it is the i6th and ijth of Car. towards the end.
cterk reads. pjoWoeo alfDagtf, ano be it eiiactea, that tjjijS 3ct, ano the fe*
fceral Ctaufes tljerein contained fball be .taken auB ecpcuitfieB, to eitenn
Bliel!' tO the CCtirt Of Star-Chambcr j auO tO tfjC ffllO Court bOlOCll befO^g
the i&tefitient ana Council in the ^atcfjeg of Wales, auo before tue ^^cfiDctiC
ano Council (it tfte Bo?tfietn patt&
^-. 5o//. G^tf. It is the Paragraph before that.
clerk r^s. ana be it alfo u?duiDca ana eiiadeci C6at it aiip petfon fljali
Ijeceafter be Committee, ueffratnetJ of lj^ Libertp, o? fufferjjmpnfonjnent,
by tljc 2)?oet: a no Decree of anp fticb Court of Star-Chamber, o? otger Court
afo^elato, notu, 02 at an? time hereafter, ijabtng, o? p?etei»oing to haue tlje
fame, 02 like Jttrtfoiction, poioer, 02 Sutt)o?itp to commit, o? impfqn,
afojefaiti; 02 bp tlje Cominano 02 Eiatrant of tije king's! ^ajeap,
$)cic0 02 g>uccen"o?0, in tljetc oiun peifonp, oj bp the Commanu o? 2
rant of tlje Council='BoarD, o? of anp of the Lo?oiai, 02 otbcw of fpi^ c
ittejs l^i'up-Caiinctl, tfjat iit euerp fuel) Cafe> euerp perfcut fo Committeu,
Eeffcaineo of fjffl Liberty o? fuffcring 1mp?tfonment, upon oemano — -
Mr. Soil. Gen. That is all : Your Lordihip fees thefe fcveral Diftinftioris of the
Style of Commitment.
Mr. An. Gen. Now^ pray favour us a little : My Lord, I think thcie Gentlemen
will not deny, but that the Lords of the Council can commit ^ 1 muft confefs, they
ask that which was pretty reafonable, if the Cafe was as they would make it •, They
would have my Lords the Bifhops discharged, becaufe there is not a Return of a
good Commitment^ and that (lands upon this preemption, that what is here (aid to
Be done by all thcfe Lords, at the end of whofe Names this is added, Lords of ibe
f rwy-CouiK.il ^ was done by them out of Council, which, I fuppofc, your Lord-
fliip will not prefumCi but will take it, that they (lid this as Lords of the Coun-
cil in Conned •, And no man can fay, but the Lords in Council can commit.
Mr. Soil. Gen. You may as well prefumc upon a Warrant made by my Lord
Chief Juftic?., becaufe it is not laid where he did ita and therefore he did it in Scat-
Mr. Alt. Gen. I fay again, unlefs your Lordftiip will prefumCj that which is not
to be prefumed, this muft needs be a very good Return.
Mr. J. Allyb. Truly (as Mr. Sollicitor faysj you may as well defirc us to prefumc,
that my Lord Chief Ji$ks would conunit a man in Inland or ScutUml , I can fee' IK>
wnaginablc difference.-
D Mr,
Mr. Finch. My Lord, That which we pray, is, noc that you* Lordfiu'p wouid
prehimc, hut that you would not prcfumc, but take the Return as 'tis before you •.
~rui then fee whether it can be thought to be a Commitment by the Lords in Coun-
cil?
'Mr. 5. Pfmhrton. Pray, my Lord, fpare us a little in this matter: Here has
been the Chitfc of % Statute read to you, from whence Mr. .SoUicitor would con-
clude, that all Commitments by feveral forts of perforis there named, arc legal j
or die the Enumeration of the ievcral forts of Commitments, lignifics nothing to
thi-; purpolc. Hut I pray your Lordlhip would conlider this, that the very fcope
ami end of that Aft of Parliament is, to relieve againft illegal Commitments and
•i-cffions; then the fevrral Commitments therein named, can never all be called
legal •, fo that that fignifies nothing to our purpolc ; My Lord, they tell us we
(fond upon Prefnmpn'on, no, we do not fo :, we (ay your Lordflu'p ought not to
prcfumc the One or the other, but to judge upon what is before you, but here is
nothing before you but this Return of a Commitment of thefc Noble Perfons,
my Lore! the Arch-Bifhop ot Canterbury ^ and the reft of the Biihops, which is faid to
wj-bythcfeparrioilar f. ords. Now it your Lordlhip will pleafe to give us time
to look into it, ( for this is an Exception we take at the oar upon hearing the
Return read ) we would fliew the conftant way has been quite otherwife than this
Return makes it -, therefore we defarc Icave^to fatisrie your Lordfhip concerning
the ufiial Form of Precedent?, and thereby it will appear, that it ought to have
been, that they were committed by Order of the Privy Council, and then he
(hpuld have fct forth the Warrant it felf, which would have fhewn the Names of
the Privy Councellors, and he needed not to have put their Names in the Re-
turn as the particular • Perfons that committed them •, but now, my Lord, this
docs not appear to be an Order made in Council, as it ought to be, and the
Return is mat which is before you, and you are to judge only upon what is before
you.
L. C. Juft, So we do.
Mr. Jujiice Allybone. Pray, Sir Robert Sawyer^ would the Saying of a Governouf
of the Tower in his Return to a Writ of habeas Corpus alter the Nature of the C<y»-
mtmcnl \
Mr. Alt. Gen. My Lord, We are in ^our Lordfhips Judgment.
Mr. Ju]l. Allybone. I fay, Brother Pernberton. would any collateral Saying of the
Lieutenant of the Tower' alter the Nature of the thing, his Return in this Cafe is
oncly an Inducement to the Warrant of Commitment, and his Saying one way
or t other would neither vitiate nor mend the Commitment.
Mr So/L Gen. Your Lordfhip cannot take notice of the Commitment but from
the Warrant.
Mr. Pdlexfen. The Return is the Fad upon which you are to judge.
Mr. Juft. Pcrrel. Certainly we muftjudge of the Record a and nothing elfc, and
the Return is the Record now, being filed.
I. Ch. Juft. The Return is as certain, I think, as can be.
Mr. Soil. Gen. By the Return it appears, the Bifhops were committed by the
Warrant of fuch and fuch Lords of the CounciL and that which is before you
now is, whether you \vill not inte'nd it to be done by them in Council.
Mr. Jufl. PQweL We can intend nothing, but mutt take the Return as 'tis.
Lord Chief Juft. The Warrant is good enough, I think truly, aud fo is the Re-J
turn.
Mr. Pdlexfen. I think in all the Habeas Corpw/j'j that have been fincc the King's
return, of Perfons committed by the Council, the Returns have been quite other-
wile than this Return is-, We do all pretty well agree (for ought 1 can perceive )
in thcle two things -, We do not deny but the Council Board has Power to com-
friit, they on the other fide do not affirm, that die Lords of the Council can com-;
mit out of Council.
Mr. An. Gen. Yes, they may, as Jufh'ces of the Peace.
Mr. PolL-xjsn. That is not pretended to be fo here.
Z. Cb. JujL No, no, that is not the Cafe-
Mr. Pa/lfxfen. Then, my Lord, with fubmiflion, I will compare it to any thing
die of this nature. 1 deny not but that the Council may commit, but the Quc-
flion
ftfon is, whether this Return of their Commitment be right -, Suppofe there fhould
be a Return to a Habeas Cafrts, that fuch a one was committed by Sir Robert
Wright^ and three others by Name, Jufticcs of this Court, for a Contempt, with-
out faying, that it was done in Court, this would be an ill Return; although they
had power in Court to commit tor a Contempt, yet it mull-appear, that it was
done in Court, or it cannot be. a good Return .- If I had thought or forefeen that
fuch a Return would haVe been made, I could eafily have made out our Obje-i
clion, but we could not foretell what they, would return, and therefore we can
only make this Objection now upon the hearing of it read. Jn all the Debates
that have been heretofore in the Great Gale of the habeas CcrpiM concerning
my Lord HoHis, and thofe ether Gentlemen who, were in Prilbn upon Com-
a fhort time to look into it, v/c Iho^.d '-c plainly able tc.'iiew you, that all the Re-
turns of Commitments of this nature, are faid to be by Order of the Council-
Board, and never any oi them naming the Lords, for that may be true, and
yet not a Legal Commitment.
Lord Ch. Juflice. I have fecn fcveral Precedents cf Commitments in this Form,
and if you make no Exception to the Warrant, you can make no Exception to the
Return, becaufe that only lets forth the Warrant.
Mr. Polkxfen. The Commitment you are to ;udgc of, is upon the Return, with
fubmiffion, and fuppofing the Warrant to be right and good, ya the Return is
not Legal.
Mr. Attorn. Gen. We fay, in common Uiicierftanding, it cannot, be but a Com-
mitment in Council.
Mr. S. femlerton. But common Vnderjhnding and Itgd ^Understanding are .two things,
and we pray the Judgment of the Court.
Mr. SolL Gen. And fo do we, my Lord-, rind pr'ay'ydir Rtile in it.
Mr. Ju&icc AUybonc. Vui! rru/ by the • 'me realcn lay, that uyon all Commit-
ments by Warrant froai j^i. ! face, tb.it. tire; '•. .<. acnt w<u; out of
the County, if the Part}' does nor , ; Warrant or Return, that the Coui-
mitment was in the County. Tii a.n Objection that would put us upoo preiuming,'
what we have no reaibn to prefumc.
L. Ch. Juflice. If you Would have our Opinions, let my Brothers declare theirs^
1 will foon tell yon my mind.
Mr. Juftice HoL'orrny. Pray let the Return be read, again. . ( trkicb was done. )
Mr. Attorn. Gen. So that the Return fays, they were trrmuotcd by vertuc of a
Warrant of fuch and fuch byNamr, Lords or "inc Council, and whether this be a
Warrant of the Council, is the Qucition, and we think it is plain enough, that tis
a good Return.
Mr. JitRice Pome/I I have given you my thoughts already, I think -we ought to
confuit Precedents in a CafeofthiVWeightand Nature-, and truly 1 will not take
upon me to fay, whether it be a good Return or not a good Return, without look-
ing into Precedents. . ,
Mr. Juft. Allylmne. For my own part., it does not fh'ck at all with me, for'the
Reaibns I gave before •, when any man that has an Authority to commit ^ does com-
mit a Pcrfon to an Inferiour Officer, and that Officer has an Habeas Corpus
brought to him, it is enough for him to return his Warrant, by which the
Party was committed, and whatfoevcr he faycs by the bye, cannot nave any In-
fluence one way or other, to alter the nature ot the thing -, Now unlcts you would
make ^very man that is a Juftice of the Peace write his Name and llile him-
fclf Juiriccof the Peace, this ;nu!l be a good Commitment. Every Commitment
fkall be prefurned to be puriuant to the power of the Perfon committing, and I am
fure, take thctc Lords fepajatelv, and they had no power to commit, and conie-
quently fuch a Warrant would be no Authority to the Lieutenant of the Tow-
er to receive them-, But when they lend fuch a Warrant as this, we (hall pre-
fumc it to be according to the Power they have, and not according to the Power
they have not -, this Warrant is returned by the Officer, and I cannot but prelume
that it is all very well*
Mr. Ji
L '
Mr. Jnfticf /7 .','.;, n. Mv Lords, I am very defirotis arid willing your I.ord-
'hi]>s Ihould have all tiic Right and JufHcc 'done you that can be, and by die
'•luce of God, 1 will endeavour it all 1 can: I fee in this Cafe it is agreed ou
bocli ndeSj that the Council have a power to commit^ and the Commitment is
here certified in thr words of the Warrant, and the Lieutenant has made his Re-
turn, tliat they were committed by vcrtuc of this Warrant •, If the Lieutenant of
the Tower had returned any other Commitment, you would have Warned him
tor a falfe Return-, but now you find fault with his Return, bccaufe he docs not
fay, the Warrant was made by the Lords of the Council, and in Council ; That is
a thing fo notorioufly known to all the Kingdom, that my Lords were lent to the
Tower by the Council, that no body doubts it ; and being thus fent by this War-
rant, I do not fee but that this is a very good Return, and my Judgment isa that
the Information ought to be read.
/W Ch. Jujt. I told you in the beginning, after you had made your Objections,
that I thought it was as all other Returns are, and J am of the fame Opinion ftill,
I find no fault with the Warrant, nor with the Return. •
Mr. Serj. Pembenon. There is no Objection to the Warrant at prefent upon this
Qucftion.
/.. Ch. Juft. Neither do I take upon me to fay any thing, nor is there any thing
now to be fpoken of touching the Fa& for which tlicfc Noble Lords were com-
mitted.
Mr. An. Gen. We pray, my Lord, the Information may be read.
Mr. Jnjl. Hdhtvay. There is no queftion about the Fact, but whether this be a
good Return which is here made, that they were committed by fuch, and fuck
Lords of the Council.
L. Ch. Jujl. I would do as much to give my Lords the Bifhops cafe, and fet them
at Jibertyj as I could poflibly by Law, but we mult not break the Rules of Law for,
any one.
Mr. Soil. Gen, Pray read the Information.
Mr. Finch. No, my Lord, we oppofe the reading of it .
Mr. Solicitor Gtn. Why will not you be fatisfied with the Opinion of th£
•Court?
- Mr. Finch. We have another thing to offer, which we muft have the Opintj
on of the Court in, before this Information can be Read.
Mr. Alt. Gen. Pray kt us hear it what it is ?
Mr. Finch. My Lord, we did humbly offer one Objection more to your Lord"-]
fhip againft the reading of the Information, the former objection was concern-
ing the Pcrfons Committing, in that it does not fufficiently appear upon the
Return, that they were committed by the Lords fn Council •, the Court have
given their opinion in that. But the other objection ftill remains, whether
they ought to have been committed at all, and therefore when they now ap-
pear upofi this Hdbcat Corpiw, we fay, they were not legally committed to Pri-
fon, bccaufe a Peer ought not to be committed to Prifon- in the firft inftance
for Mifdemcanour.
Mr. SoUkii. Gen. If you pleafc you may fpeak to that by and by, buc
that is not proper now for you to offer, or for the Court to determine, whe-
ther a Peer may be committed upon an Accufation for a Mifdemeanour ?
Mr. Finch. With Submiflion, that is fuch a difficulty that lyes in the way
againft the reading of the Information, that you muft get over it/ before you,
can ceme at the Reading of it.
Mr. Att. Got. You will have your time for all this matter by and by^ buc
certainly, you cannot be admitted to it yet.
L. Ch. Juft. Truly I think you are too early with that Exception.
Mr. Finch. With Submiflion, we th/uk this is the proper time, and I wilf
fcll you* Lordfhip the rcal<m why.
L
C '5 ]
Ld. Ch. Jufl. Mr. Finch, certainly every thing in the world> that can be faid,
you will fay for your Client, and you (hall be heard ^ for we are very willing
to deliver thefe Noble Lords> if we can by Law, and if the Exceptions you make
be legal.
Mr. Finch. My Lord, we do not doubt your Juftice, and therefore we defire to
offer what we have to fay in this Point; the only Queftion (now it feemsj is
about our time of making our Exception. Mr. Attor. ( we apprehend ) did fay-
one thing which was certainly a little too large -, That however any man comes
. into Court, if the Court find him here, they may Charge him with an Informa-
tion.
Mr- Attor. Gen. Who fays fo ? I faid no fuch thing.
Mr- Finch. Then I acquit Mr. Attorney of it, he did not fay fo : Then both he
and I agree the Law to be, That a man that does come into Court, if he does
not come in by Legal Procefs, he is not to be Charg'd with an Information ; then
fince we do agree in that Propofition, certainly we muft be heard to this Point,
Whether we are here upon Legal Procefs, before you can Charge us with this In-
formation ?
Mr- Attor. Gen. You think you have faid a fine thing now, and take upon you
an Authority to make me agree to what you pleafe.
Mr Finch. Certainly the Confeqnence is plain upon your own Premifes-
Mr- Attor. Ge». Do you undertake to fpeak for me ?
Mr- Finch. I am in the Judgment of the Court, and to them I leave it.
Mr. Attor. Gen. I know you thought you had got an extraordinary Advantage,
by making me fay what you pleafe-, but there has been very little faid, but what
has been grounded upon Miftakes all along : This is that I do fay, If a man comes
involuntarily upon any Recognizance, though he be not in Cuftody -, or if he comes
in upon any Procefs, if the Court find him here, though that Procefs be not for
the thing Charged in the Information, yet the Court is fo much in poffeffion of the
Perfon, that he {hall plead to any Information, and That I do fay, and willftand
by.
Mr- Soil. Gen. My Lord, we are here in a very great Auditory, and this Court
is always a very great Court, ( but here is a Greater and Nobler Aflembly, than
ufually we have here) and thefe Gentlemen, to fhew their Eloquence, and Ora-
tory, would, by converting Propofitions otherwife than they are delivered, puc
another meaning upon them,and fo draw ftrange Inferences from them ; but thefe
Arts we are fure will not prevail here} we fay plainly, and we are fure the Law
is fo, ( let them apprehend what they will ) That your Lordfhip cannot exhibit
an Information to any man that you find accidentally here in Court ; then fays
Mr. Finch, we arc agreed •, but withal (fay I ) take my other Propofition, If a
Perfon be brought into Court by Legal Procefs, or upon any Contempt what-
foever, by an Attachment, or Warrant, or upon a Habeas Corpus after a Com-
mitment, being thus found in Court, your Lordfhip may certainly Charge him
with an Information •, when thefe Gentlemen, who are fo eager on the otherfide,
did prefide here, and flood in the places where Mr. Attorney and I now are-, I
can name them abundance of Cafes of the like nature with this, when men have
been compelled to appear to Informations, and plead prefently ; they are the Per-
fons that made the Precedents ; they made the Law, for ought I know : I'm fure
I find the Court in poiTeltion of this, as Law, and we pray the ufual Courfe may
be followed.
Mr- Finch. 'Pray my Lord fpare us a word in this matter : I do agree with Mr.
Attor. in this matter, but I do not agree with Mr. Sollicitor.
Mr. Suit. Gen. You do not agree with your felf-
Mr. F inch. I hope I do, and always fhall agree with my felf, but I do not agree
with you, Mr. Solicitor.
Mr. Soil. Gen. You do not in 1 688 agree with what you were in 1680.
Mr- Finch. Says Mr. Attorney, A man that comes voluntarily in, cannot bt
Charged with an Information ; with him I agree. Says Mr. Solicitor, A man that
comes in, and is found in Court by any Procefs, may be Charg'd with an Infers
mation : 1 fay no, if the Procefs be wholly illegal, for he cannot be faid to
be legally ia Court : Suppofc a Peer of the Realm be taken upon a C«piast and
£ i
C -4 3
is Committed to the J£rffc*f/M, and is brought up upon a Hubert
1 won! ! fain know whether you could declare agaib.t him.
Mr. Attar. Gen. No, we cannot .
Mr. Finch. And why is that) but becaufc the Prccefs is Illegal, and he is hot truly
in Court : Then is it a proper time now,to make this a queftion, \Yhcther my Lords
here were Legally committed, before you can lay any thing rp their charge by
way of Information; for if the Commitment be Illegal, it is a Void Com-
mitment; and if the Compiitmcnt be void, the Prbcefs is void, and then my
Lords ate not Legally in Court.
Ld.Ch.Jn(t. That fure is but returning again to the fame queftion thdt
has been determined already.
Mr. Soil. Gen. If your Lordihip will permit them to go over and over the
lame things, we mall never have an end.
Mr. Fit.ih. My Lord, we pray thefe Gentlemen of the KINGS Council may
be a little cool with us, and then they will find, we do not talk the fame
things over and over again, nor meddle with that which the Court have given
their Judgment In. Ld.Ch.Jufl. Well, go en Sir.
Mr. Finch. My Lord, We fay, it is the Priviledge of the Peers of f-/{ l.md,
that none of them (hall be Committed to Prifon for a Mifdemeanour, efpecially
in the firft in(lancc> and before Judgment •, this (we fay) is the right of my
Lords, the Btjbops, and that which they claim as Lords of Parliament. Now is
appears upon this Return and the Warrant, that the Council-Table hath Com-
mitted them, (for your Lordfliip and the Court hath rul'd it.that this Commitment
muft be taken to be by Order of the Privy- Council, and we meddle not with
that further) but we fay that the Council- Table may Commit a roan unjuftly, that
is certain : There has been relief often given in this Court againft Commitments by
the Council-Table: And that they were unjuflly Committed, depends upon that
point of their Priviledge as Peers.
Mr. Strj. Pemb. My Lord, we fay, that the Lords of the Council have Illegally
Committed thefe Noble Perfons, who are Peers of the Realm, and ought to have the
priviledgc of their Peerage,which is not to be Committed for a Mifdemeanour ^ th.it
the Council ought not to have done : For the Peers of England ought no rrtore to be
Committed for a Mifdemeanour, and to be Imprifoned, efpcciafly upon the firft
Pi ocefs,than they may be in a cafe of Debt- It is true, in the ca fe of Treafon, Fclo=
ny, or the Breach of the Peace, the Peers have not fuch a Priviledac; they may be
Committed ; but fora-bare Mifdemeanour (as this does appear to be in the Warrant
of Commitment) they ought not to be Committed; but they wereCorrtrm'tted by the
Lords of the Council, and wenow complain of this to your Lordlhip as Illegal, and
therefore pray my Lords may be difcharged.
Sir Robot Sawyer. Will your Lordlhip be pleafed to favour me a Word on the
fame fide for my Lords the Biflwfs. It muft be agreed to me, that if a Peer
be brought into Court, as taken by a C^ias, he cannot be charged with a
Declaration ; and the reafon is, becaufe the Proccfi is Illegal : Then, my Lord,
with fubmifllon, When a Peer comes upon a Foreign Commitment, and Is
brought in Cuftody upon a Hdets Corpus, this is either in the nature of a
Proctfs, or a final Commitment, as a Judgment ; they will not fay, that this
is a good Commitment fo as to amount to a Judgment; for the Council- Board
could not give a Judgment in the cafe ; befldes, the Commitment is Illegal bc-
caufe it is not a Commitment till they find fecurity to anfwer an Informa-
tion here, but 'tis a Warrant to keep them for a Mifderaeanour; befides, there
is another thing we have to fay to this Warrant, (for I am making Obje-
ctions againft the Validity of this Commitment ) it does not appear that there
was any Oath made, and therefore the Court muft adjudge that there was no Oath
made, ?.nd then no man ought without an Oath to be Committed, much Jefs a
Peer; but that which we chiefly rely upon, is, That my Lords onght not to
tiavc been Committed for thisi which is but a Mifdemeanour at moft : And if
they ufe it, as Proce/s to bring ray Lords the Bif)fs to anfwc'r an Infor-
mation, we fay, By Law no fuch Proofs can be taken out againft the Per-1
fons of Peers for bare mifdcmeanours. I do agree, that for feHony» Trea-
fon, or Sumy of the PCT.C, the Ferfor/s of Peers msy be Commit-
ted;
t'J]
ted; and that which, is. called Surety of the Peace in put1 Books, Mi.
Solicitor knows very well, in fome of the Rolls of Parliament, is called
Breach of the Peace, but it is all one •, and the meaning, in fhorc, is, That
it is fuch a Breach of the Peace, as for which a Man by Law may be obliged
to find Sureties for the Peace. If it fhould mean a Breach of the Peace by
implication, as all Trefpaffes and Mifdemeanours, are faid to be Contra Pacem
in the Indiftment or Information, then it were a fimple thing to enumerate
the Cafes wherein Priviledges did not lie ; for there could be no Informati-
on whatfoeverj but muft be Contra, Pacem, and fo there could be no fuch thing as
Priviledge at all : And befides, we fay, the very Courfe of this Court is con-
trary to what the*y would have', for in the Cafe of a Peer, for a ftlifdeamea-
nour, you go firft by Summons, and then you do not take out a Capias as a-
gainft a common Perfon, but the next Procefs is a Diftrtngas, and fo ad In-
$nitnm; And I do appeal to them on the other fide, and Challenge them to
ihew any one Precedent, when a Peer was brought thus into Court, to be char*
ged with an Information, without it were in the Cafe of an apparent Breach
of the Peace, for he muft be Charged in Cuftody, and there mult be a Cammii-
tttur to the Marfhal, to intitle the Court to proceed ; your Lord/hip will find
very few Precedents of Cafes of this Nature about common Perfons, for till with-
in thefe 14 or 15 years there was no fuch thing ever done againft a common Perfon ;
But this was the Rule', firft there went out a Subpvn.1, and then an Attach-
ment, and when the Party was taken .upon the Attachment, he is taken to
come in upon Procefs, and then the Court would Charge him prefently ; but
if he did appear upon the Summons, they would not Charge him, but he had
time to take a Copy of the Information, and an Imparlance of Courfe, till the
next Term^ before he could be compelled to Plead. But in the Cafe of a
Peer, there never was any fuch Precedent, as the Attaching his Perfon, but
only a Summons and Diftrefs ; and 1 would be glad the K 1 N G's Council
would fhew thac ever there was any fuch procefs taken out againft the Per-
fon of a Peer, for a meer Mifdemeanour- My Lord, 'tis plain, what Breach
of the Peace means in every Information? and I only fpeak this to acquaint the
Court how the conftant Proceedings in all thefe cafes have been. Thefe Infor-
mations were anciently more frequent in the Star-Chamber ; and what was the
Procefs there? Not the common Procefs of a Sttbpana-, that was not the couffe
there; but the Procefs was a Letter from the Chancellor, that if the Party
upon that Letter did not appear, in a Common Cafe, rbere went out an At-
tachment; but in a Peers Cafej never •, and foit appears by Crotnptons JtinfMtti-
gn of Courts. Tit. Star-€b*mber 33. This appears Jikewife by the Proceedings in
Chancery againft the Peers, till the Queens time, they did not fo much as take
out an Attachment after default upon a Subpama, but they would then in the
Queens time, be fo bold as to take out an Attachment againft a Lord fot
not appearing; but that Courfe was condemned as illegal j fo we find in my
Lord Dyer.
Mr- slttor. Gen. That was at a common Perfons Suit.
Sir Robert Sawyer. But the proceedings in the Star-Chamber were at the King's
Suit, and I am fure Mr. S lltdtor knows that the Peers priviledges reach to
Informations, but as I was faying, it was fo adjudged a"s to the Chancery in
my Lord Crowd's Cafe- xiiii Eliz.. JHwyji*.
Ld. Ch. Jnjl. You take a great compafs, Sir Robert Sawyer, but pray remember
what you laid down at firft, for the Ground of your difcourfe, That there
was never any Commitment of a Peel- for a bare Mifdemeanouf, you muft keep
to that, that is the Point you are to look after.
Sir Robert- Sawyer. My Lord I will fo, I do do1 not Cite thefe Cafes but for
this purpofe, to Ihew, that in all Courts the Peers have particular Priviledges,
and lam fure they can produce you no Precedents for any filch proceedings a'-'
gainft a Peer; io my experience of thefe matters, I never knew any fuch ^ nay,
1 knew it always to be otherwife, That in Informations fof Mifdemeanours,
there did never ifliie out a Capias againft a Peer; and Mr. Attorney knows ve^
ry well, it was fo in the late Cafe of my Lord Lovelace-, for that Cafe of mv
Lord DcvoHflfai that was an exprsfs Breach of the Peace, tho° it was debated,
and
nnd difputcd then i lo that I take it, thcfe Noble Lords cannot be charged
with this Information, becanfc they do not come in by Legal Procefs ; and un-
Icfs they can Ihcvv me any Cafe, where a Peer did ever come in upon fuch a
Commitment, and anfwercd to an Information upon that Commitment, it mult
certainly be allowed not to be the Legal Courfe ; though if fuch a Precedent
could be (hewn, that paft ful> Silentia, without debate or folerun determinati-
on, that would not do, nor could bind the reft of the Peers ^ If one man
would Jofc a particular Benefit he has, all the whole Body muft not lofe
hi and the benefit is not fmall, of Time to make his Defence; of Imparting ;
of taking a Copy of the Indiftment, and preparing himfdf to plead as his
Cafe will bear ; and indeed a common perfon has ufed to have thefe privi-
ledges, tho in fome Cafes of late, they have taken the other Courfe ; and if a
Capias went out (which We fay, cannot go againft a Lordj and the Party were
brought in, he was to anfwer immediately : Now, my Lord, I take it, That the
Ft ivilcd^es of Peers is in all times the fame with the Parliamentary Priviledge
in Parliament time, which reacheth to Informations, as well as other Actions.
(My Lord Cooki is exprefs in this point) in the 4 Jr.jlit. 25. If that Objection
lliould hold good, that every Information being Contra. Pacem^ that fhould be a
Breach of the Peace, then (a* I faid before) priviledge will hold in no Infor-
mation> which is contrary to that and all our other Books ; 'tis only fuch a
Breach of the Peacej as for which fecurity of the Peace may be required. But
further, that this is a Priviledge enjoyed by the Peers Spiritual as well as Tempo-
ral, I fuppofe will Hot be denied, for I think they will notqueftion, but that the
Bithops, and Abbots that were Lords of Parliament were Peers> and we find in our
Books when the Court has been moved for a Capias againft an Abbot, if he were a
Mitred Abbot, and fat in the Lords Houfe> it was always faid, that no fuch Procefs
ought to go, and fo it is in the cafe of Bifhops ; but indeed for other Noble Men, the
difference is this, Where it does not appear upon Record, that they are Lords
of Parliament, there the Courts have put them to bring their Writs of pri-
viledge, but where it does appear upon Recordj that they are Peers, the Court
is to allow and take notice of their priviledge, and there needs no fuch Writ.
Now that the Parliament priviledge, and the priviledge of Peers (as to their
perfons) is the fame, appears by the form of the Writ in the Rtgifter fol.
287. Fitz. Herb. Nat. Brev. 247. The Words of the Writ are thefe, That if fuch
a one be Sued at the Suit of another, the Writ commands, that a Peer out of
Parliament time (hould have the fame priviledge with thofe fummoned by the
KING to the Parliament} and I know not any diiference that can be put be-
tween them, and it cannot be denied, that all Informations whatfoever, unlefs
inch as are for Breaches of the Peace, for which Surety of the Peace may be
required, are under the Controul of the Parliament priviledge ; fo that upon
thefe grounds, I do prefs that my Lords the Bijhops may be difcharged: If
there Be any Information againft us, we are ready to enter our Appearance
to anfwer it according to the courfe of the Court ; but if the Information be
for no other thing than what is contained in the Warrant of Commitment
then their perfons ought to be priviledged from Commitment-
Mr. Pollixfen. If your Lordlhip pleafe to take it all together, you will find it a
cafe very well worth your confideration, it being the cafe of all the Peer-
age of England.
Mr. Attor. Gen. My Lord, thefe Gentlemen have taken a great deal of Liberty,
and fpent much of your time in making long Arguments, and after all, truly
I do not know where to have them> nor can underftand what they would be
at •, it feems they agree that for Treafon, Felony, and Breach of the Peace, a
Peer may be Committed.
Ld. Ch. Juft. That is (fay they) fuch a Breach of the Peace, as for which Sure-
ty of the Peace may be required.
Mr. Attor. Gen. Then all the Learning they have been pleafed to favour us with,
is at an end, for if here be any thing charged upon the Bifiops, for which
Sureties of the Peace may be required, then this is a good Commitment-
Ld. Ch. Juft. That they muft agree upon their own Arguments.
Mr.
[ '73
Mr. Attm\ Gen. Can then any man in the world fay, that a Libel does not re-
quire Sureties of the Peace ? for we rauft now take it as it is here upon this Return.
How my Lords the Bifhops will clear themfelvesof it, is a Queftion for another
time; but the Warrant fays they were Com mited for Contriving, Framing, and
Publifhing a Seditious Libel againft His Majefty, and His Government ; Is there a
greater Mifdemeanour ? Or is there any thing on this iide a Capital Crime that is
a greater Offence ? Is there any thing that does fo tread upon the Heels of a Ca-
pital Offence, and comes fo near the greatcft of Crimes that can be Committed a-
gainft the Government ? Not to enlarge at this time upon what the Confequences
of fuch things may be, Is there a greater Breach of the Peace than fuch Seditious
Practices ? No doubt, any man may be Committed for it, and may be bound to
find furetics for his good Behaviour.
Sir Robert Sawyer. I fay Sureties of the Peace, not of the good Behaviour.
Mr. So/I. Gen. Pray my Lord, would you confider where we are, we are going
towards France, I think> or fome farther Country ; they have fet us out to Sea, and,
I do not fee after this rate, when we fliall come to Land ; certainly, thefe Gentle-
men are mightily out of the way,and would fain have us fo too ; we are here upon a
fingle Queftion, as this Cafe ftands before your Lordfhip, upon the Return ; here
is a Libel, a Seditious Libel, faid to be contrived, made and published againft the
KING and His Government, by thefe Noble Lords the Prifoners ; this is the Ac-
cufation ; fuppofe this be true, (that is to be proved hereafter^) (I hope they are
innocent, and will prove themfelves fo) but fuppofe it to be true, that they have
made a feditious Libel againfl the King and His Government,will any man fay,that
this is not done fi & Armis ? This is a Libel with a witnefs ; nay,too or three de-
grees more may carry it to High Treafon, and all the Informations that were ex-
hibited by Sir Robert Sawyer, when he was Attorney Gemrzl, ( and he exhibited a
great many for Libels) constantly thefe Words were in Vi & Armis, & contra
Pacem,
Bifiop of Peterborough. Was it fb in your own Cafe Mr- Sollicitor ?
Mr. Soli. Gen. Yes, it was fo in my Cafe, and you were one of them that profe-
cuted me, for ought I know j or if you did not profecute me you preached a-
gainft me; or if you did not , fome of your Tribe did : But fo, my Lord, ic
was in many other Cafes, within time of Memory. Sir Robert Sawyer has paft a
Complement upon me, of my great Skill in Parliament matters j but truly there
needs no great Skill in matters where the Law is fo plain ; a Peer they agree may
be in Prifon for Treafon, Felony, or Breach of the Peace ; but that Breach of.
the Peace (fay theyj is where the Law requires Sureties of the Peace; but is
there any Certainty where Sureties of the Peace fhall be required, and where not?
Then I "would put this Cafe, Thefe Lords have contrived and publifhed a Seditious
Libel againfl: the King and His Government ; and whether this be not fuch a Breach
of the Peace, as will require Sureties of the peace, is the Queftion before you :
And it plainly appears to be fo, in Sir Baptift /flea's Cafe, in Hobbart. If a man
write a private Letter, provoking another to fight, although there be no fighting,
this is a Breach of the peace ; now a Letter can do no Wrong in that kind, but
as it incites and ftirs up to fighting, which may occafion Blood-fhed , and I think
there cannot be a greater Breach of the peace, than for a map to come to the
Kings Face, and publifh a Libel againft Him, and yet according to their Do-
ftrine, this man fliall go away, and you fhall not take him up, but take a Sub-
fcena againft him, and wait for the delay of all the ordinary procefs ; and they
tell you another thing, that a Capias does not lie upon an Information againft the
perfon of a Peer, and that there is no precedent of any fuch thing, but I would
pray them to remember the Cafe of my Lord Lovelace, about fome three years
.ago for breaking a Foot-mans Head. Itfeems, if a man libels the King in His
own prefence, that is not fo great a matter, as a little Correction to an infolcnt
Foot-man ; but there he was bound in a Recognizance to appear here in this Court,
and accordingly he did appear, and was Charged with an information, and as to
F that
[ It 1
I
: I i
, whov.cn;: to a difordcrly I Ionic- snci time iiL
moved the Court, and had an Attachment againft him, for a in.,
:d to Compound the thinker it had not cr.dcd fo Icon ;is it did -, ai.d yet if
a Lord comes to the A'/Vs PeiTcn, and oiiroi.ts Him to his very Face, will
not an Attachment lie agamit him for it ? Csrtainiy ic will. My Lord, we
have gone out of the way too much already, and t..c!e Gentlemen will lead us
farther, but we hope your Lord ill ips will reduce us to the methods of the Law :
Here is an Information which we dcfirc may be rend, if they have any thing to
plead to it, their time for that will come after it is read ; ii they think they have
been illegally imprifon'd, it appears plainly upon this Return, who they were than
did Commit them } here arc a great many Noble Lcrds to Anfwer an Action of
falfe imprifonment, if thcfe Lords think fit, and may have thcfe Learned Gentle-
men, thai arc very well able to advifc them what they fliould do in it.
Sir Robert Sawyer. We pray your Lordfliips Judgment, whether the Cafes put by
Mr. SAUCILY are like our Cafe-
Mr. Soli. Gen. They are as like, as Sir Roltrt Sawyer is to Mr- Attorney that
was.
Sir Ri'l-crt S.rtpyer. Thofe Cafes arc of apparent Breaches of the peace, fo likc-
wifc was my Lord of Dtvoefoirii'* Cafe, but certainly that was net £t oil like
this.
Mr. Finch. With your Lordlhips Favour I would add but one Word, and I
would repeat nothing of what has been faid j all that I fhail fay is this, There is
a great deal of Diilerenee between an Actual Breach of the Peace, and that
which in the bare Form of an Information is a Breach of the Peace, by Conftru-
ction of Law, it being contra p.item: Suppofeit be laid that a man did vt o- .ir-
mis fpeak Words, will that make the Words a Breach of the peace /
Mr. Soil. Gen. It muft be vi G" arms, and certainly is a Breach of the peace.
Mr. Finch.- If a man write a Petition , arc the pen and ink that he uics, the
Arms ?
Mr. Soil, Gen. My Lord, I hope Mr. Finch remembers what I heard him fay in
Algermon Sidney's Cafe, fcribere eft a^crc.
Mr. Finch. I think it is fo, Mr. Sollicitor^ but every Action is not a Breach of the
peace.
Ld. Ch. Jtijt. We let my Brothers deliver their Opinions, I will give you mine.
Mr. Juft. Allyb. The fingle QiiefHon now is, Whether cr no that which Mr.
SolUcitor was pleafed to name as the Crime, and lay it to the Charge of my Lcrds
the Bifhops, that is a feditious Libel, be a Breach of the peace: I do confcfs
that there is little of Argument to be drawn from Forms of Indictments ; and I
(hall put no great Itrefs upon the words vi & artnis, where the Fact will not come
near it, but if a Commitment may enfue, fas they feem to agree,) wherever furety
of the peace may be required, -nothing feems more important to me, thaii than
furety of the peace mould be required, where there is any thing of Sedition in
the Cafe ; and wherever there is a Seditious Act, I cannot tell hovvio make any
other Conftruction of it, but that it is an Actual Breach of the peace, that is
my Opinion.
Mr. Jaft. Powell. I am of the fame opinion in this point too , as I was in
the other point before, It was a matter of great confequenc? ( I thought,) upon
the former point, but now it appears to me, to be of far greater confcquence
than it did at firft ; for here, all the Great, Highland Noble Peers of 1
••'• nre concerned in it, as to their priviledge- Our Predcce.'Iors in th;s Court
heretofore would not determine the priviledges of the Peers, but left them
to thcmfclves to make what Judgment they pleafed of them : I think truly 'tis
a thing of that weight, that it may be very fit for the Court to take time to
cr of it, and I declare for my own part, I will not take upon me to
i-/ Opinion in a matter of this Consequence, before 1 have Confulted
.c me any Light in the Cafe.
Mr. J*fl.
C i?
Mr. y«fr. Aliylonc. Brother Putrc!ly I am not determining, KhJtttting, or c;
the priviledge of Peers, bat I am only coniidering whether or no a feditious Li:
bs"a breach of the Peace ; Tis agreed to be on ail hands a breach of the Pcsav
Is there any thing that will require Sureties of the Peace to be given upoWPfie tid-
ing of it? For there Sir Ro'nrt Sawyer has laid the Foundation of his diflin:
ft ion, and if that fhall draw any perfon under a Commitment, then, fay I, in
my judgment, wherever there is a feditious Libel, there is that which is an
actual breach of the Peace -, for I am fure, there is that, which is fufficient to
require Sureties of the Peace j I controvert not the right of the Peers one way
or other, but only declare my opinion, That this is a ftft that comes within
the Rule laid down by them, That what will require Sureties of the Peace, is a
breach of the Peace.
Mr- 'jnfl- Hollow ay. God forbid that in a Cafe of this Nature, any one mould
take upon him here to fay, that every Mifdemeancur were a breach of the
Peace, I fay not f°» but certainly there are fome fuch Mifdemeanours as are
breaches of the Peace ; and if here be fuch a Mifdemeanour before us, then ic
is acknowledged that even in Parliament time, a priviledged perfon might be
Committed for it : For in Treafon, Felony, and breach of the Peace, privilcdge
does not hold. I will not take upon me (as my Brother ftidj to determine con-
cerning the priviledge of the Peers ••, it is not of our Cognizance, nor have we
anything to do, either to enlarge or confine priviledge,, 'nor do ue determine
whether this be fuch a Libel as is charged in the Information, that will come In
queftion another time, buc certainly as this Cafe is, the Information ought to
be read, and my Lords ought to appear and plead to it.
Ld. Ch. Jift. Certainly we are all of us here as tender of the. priviledges of
Peers' as any in the World can be, and as tender as we would be, and ought to
be' in 'trying any man's right •, it becomes us to do it with great refpect and
regard to my Lords the Bijhops ^ and therefore I would be as careful ( if thac
were the queftion before me) toconfider very well, before 1 give my opinion, as
ever I was in my life. But when I fee there can come no mifchief at all to
the priviledges of the Peers, by what is agreed on all hands ; I think I may
very juftly give my opinion •, for here is the queftion, Whether the faft
charged in the Warrant, be fuch a Mifdemeanour as is a breach of the Peace,
and the words of the Warrant (which is now upon the Record) being fuch as
have been recited, I cannot but think it is fuch a Mifdemeanour as would have
required Sureties of the Peace, and if Sureties were not given, a Commitment
might follow ; and therefore 1 think the Information rauft be read,
Mr. Attor. Gen- We pray the Clcrl^may read it.
Clerk reads. ^iD&Uto ff. S^emojantl, That Sir Thomas Porvys, Knight, Attorney
General of our Lord the KING, who for our faid Lord the KING, in this behalf
Sues comes in his own perfon here into the Court of our faid Lord the KING,
before the KING Himfelf at Weflminjlcr, on Friday next, after the morrow of the
Holy Trinity in this Term, and for our faid Lord the KING, gives the Court
h- re to underftand, and be informed, that our faid Sovereign Lord the KINQ
out of His Signal Clemency -
Mr. Soil. Gen. Read it as it is in Latin.
Bifi. of Peterborough. My Lord, We defire it may be read in Engtifi, for we
dou't underltand Lot-Latin,
Mr- Soil. Gen. No, my Lords the Btjimfs are very learned Men (we all know)
pray read it in Latin.
Clerk reads- 3$emo?ftnlutnt, Quod Thomas Powys, Miles, Attomatus Domini
(Jtn-ntliii ^"» pry eodew Do/vino Ke^c in hac p.wte jeqitititr, in fro-
[ 30 3
:t lac in Cftri* ditt"1 Domini Reels cor am ipfo Rege afiid
Wclhnoiinfteriimi, Die Vcneris proxime f>ft crafltnum banctiE Trinitatis, ifto eo-
;;«o, & proeuilon Domtno Rcge- D,tt Curi.t hic intelligt O" inforniari^ quod
< Domniis A'f.v, ttunc ex in/igm dementia & benigna, Intentlouc fuis erg*
w ftint Renii fui ^^ Angliae, per Rtgi.tm fii.im Prtrojatwam, quarto Die Aprilis,
K-.'>:i DilP Dumun Regis nunc 7c>r;y, apitd Weftmonafterium in C emit at it
Middlefcxiae, Dul.t-.itioncni fuum Jntitulntam^ %?i<3 ^aicfttfjj (BjatiousS 2DccIarari'on
to all l?is KLolnng »>ubjcct0 fo? Ilibertp of Conftirncc, gtrtnt<.m Datum tifdem
Die c~ A:-O, M.tgno Sigillo fuo slngli*. Sgtltatim fuplicavit ^ in <jua
conti>iftnrt
JAMES
IT having pleafed Almighty GOD, not only to bring Us to the Imperial
Crowns of thefc Kingdoms through the greateft difficulties, but to prc-
ferve Us by a more than ordinary Providence upon the Throne of
. Our Royal Anccftors- There is nothing now that We fo earneltly defiro
as to Eftablilh Our Government on fuch a Foundation as may make Our
Subjeds happy, and Unite them to Us, by Inclination as well as Duty,
which We think can be done by no means fo efftftually , as by Granting
to them the Free Excrcife of their Religion for the time to come, and
add that to the perfect enjoyment of their property; which has never
been in any cafe invaded by Us lince Our coming to the Crown, which being the
two things men value moft, fliall ever be preferved in thefe Kingdoms du-
ring Our Reign over them> as the trueft methods of their Peace, and Our
Glory. We cannot but heartily wifli, as it will eafily be believed, that all
the People of Our Dominions were Members of the Catholicl^ Church,
yet We humbly thank Almighty GOD> it is, and hath of long tirr.e been
Our conflant Senfe and Opinion ( which upoH diverfe occailons We have
declared ) that Confcience ought not to be conftrained? nor People forced
in matters of meer Religion. It has ever been directly contrary to Our
Inclination , as We think it is to the Intereft of Government which it de-
Itroys, by fpoiling Trade, depopulating Countries, and difcouraging Stran-
gers', and finally, that it never obtained the end for which it was imployed.
And in this We are the more Confirmed by the Reflections We have made
upon the condndl of the four laft Reigns. For after all the frequent and
prefling endeavours that were ufed in each of them, to reduce this King-
dom to an cxadT: Conformity in Religion, it is vifible , the fuccefs has not
anfwercd the defign : And that the difficulty is invincible. We therefore,
out of Our Princely Care and Affeftion unto all Our Loving Subjects, that
they may live at eafe and quiet, and for the increafe of Trade, and en-
couragement of Strangers, have thought fit by Virtue of Our Royal Prero-
gative, to ifTue forth this Our Declaration of Indulgence, making no doubt
of the Concurrence of Our two Houfes of Parliament, when we mail think ic
convenient for them to meet. In the firft place we do Declare, that We
will Protect and Maintain Our Arch-bifhops , Bifliops, and Clergy, and ail
other Our Subjects of the Church of England, in the Free Exercife of their
Religion as by Law Eftablifhed, and in the quiet and full enjoyment of all
their pofleffions without any moleftation or diflurbancc whatfoever- We
do likewife Declare> that it is Our Royal Will and Pleafure, that from hence-
forth the execution of all and all manner of Penal-Laws in matters EcclefiafticaJ,
for not coming to Church, or not receiving the Sacrament, or for any o-
ther Non-conformity to the Religion Eftablimed, or for or byreafon of the
Excrcife of Religion in any manner whatfoever , be immediately Sufpended ,
and the further Execution of the faid Penal-L*w and every of them is hereby
Sufpended- And to the end, that by the Liberty hereby granted the Peace
and Security of Our Government in the practice thereof, may not be endan-
gered, We have thought fit, and do hereby ftreightly Charge and Command all
Our Loving Subjects, that as We do freely give them leave to meet and ferv«
God
[21]
God after their own way and manner, be ic in Private Houfes, Or places pur-
pofely hired of builc to? that ule, Ib that they take efpecial care that nothing be
preach'd or taught amongft them which may any ways tend to alienate the
Hearts of Oar People from Us or O.ir Government, and that their Meetings
and Afiemblies be Peaceably, Openly, and Publickly held, and all Perfons free-
ly admitted to them ; and that they do fignifie and make known to fome one
or more of the next Juftices of the Peace, what place or places they let apart
for thofe ufes : And that all Oar Subjects may enjoy luch their Religious Aflem-
blies with greater AfTurance and Protection, We have thought it requifite, and
do hereby Command, that no difturbance of any kind be made or given unto
them, under pain of Our Difpleafure, and to be further proceeded againft with
the uttermoft leverity. And foralmuch as We are defirous to have the benefit
of the Service of all our loving Subjeds, which by the Law of Nature is infe-
parably annexed to, and inherent in Our Royal Porlbn, and that none of Our
Subje&s may for the future be under any dilcouragement or dilability ( who are
otherwife well inclined and fit to lerve Us ) by reafon of ibmc Oaths or Tefts
that have been ufually adminilrred on Inch Occafions, We do hereby further
Declare, That it is Our Royal Will and Pleaiare, that the Oaths commonly cal-
led the Oaths of Supremacy and Allegiance, and alfo the feveral Tefts and De-
clarations mentioned in the A&s of Parliament made in the ^^th. and %otb.
years of the Reign of Our late Royal Brother King Charles the Second, lhall not
at any time hereafter be required to be taken, declared, or fubfcribed by any
Pcrfbn or Perfons whatfoever, who is or (hall be employed in any Office or Place
of Truft, either Civil or Military, under Us, or in Our Government. And We
do further Declare it to be our Pleafure and Intention from time to time here-
after to grant Our Royal Dilpenfations under Our Great Seal to all Our loving
Subjects Ib to be employed, who (hall not take the laid Oaths, or Sublcribe or
Declare the faid Tefts or Declarations in the above-mentioned A6b, and every
of them. And to the end that all our Loving Subjects may receive and enjoy
the full benefit and advantage of Our Gracious Indulgence hereby intended, and
may be acquitted and difcharged from all Pains, Penalties, Forfeitures, and Dif-
abilities by them or any of them incurred or forfeited, or which they (lull or
may at any time hereafter be liable to, for or by reafon of their Non-conformity,
or the Exercife of their Religion, and from all Suits, Troubles, or Difturbances
for the lame, We do hereby give Our free and ample Pardon unto all Non-con-
formifts, Rcculants, and other our Loving Subjects for all Crimes and Things by
them committed or done contrary to the Penal Laws formerly made relating to
Religion, and the Profcdion or Exercile thereof, hereby declaring that this Our
Royal Pardon and Indemnity fhill be as good and efF-dual to all intents and
purpofes, as if every individual Perfbn had been therein particularly named, or
had particular Pardons under Our Great Seal, which We do likewife Declare
(hall from time to time be granted unto any Perfon x>r Perfons defiring the lame,
willing and requiring Our Judges, Juftices, and other Officers, to take notice of
and obey Our Royal Will and Pleafure herein before Declared. And although
the Freedom and Affurance We have hereby given in relation to Religion and
Property, might be fufficient to remove from the Minds of Our Loving Subjedls
all Fears and Jealoufies in relation to either ; Yet We have thought fit further to
Declare, That We will maintain them in all their Properties and Pofteffions, as
well of Church and Abby Lands, as in any other their Lands and Property what-
loever.
Et idem Attcrnatia difti Domini Regis nunc Generalis fro eoihm Domino Rege ulcerua
dat Curi* hie intelltgi & informari, quod poftea fcilicet -vicepmo feptimo die Aprilu
Anno Regni dicti Domini Regis nunc, &c. quarto, apud Weflmonafterium prtdittum in
Comitatu Middlefexif prfdicto, idem Dar/imas K ex nunc ex eadem dementia (jf benigna
inienticm fun crga /ubditos Juos Regni fiti Angli<e> per Regiam fuam Prarogativam,
aliam Regahm foam Declarafivitcm Intitalatam, His Majelties Gracious Declaration,
G gmntem
gtrentem datum tifthm die & anno ultimo mtnticnatif, magno figillo fuo Angli* fimiltter
; in qua quiilem Dtclaratione continetur,
JAMES REX.
U R Conduct has been fuch in all times, as ought to have perfwaded die
"V_x World, that we are firm and conftant to our Refolutions ; yet that c.-
" People may not he abuied by the Malice of crafty wicked Men, We think fir
" to declare, that Our Intentions are not changed fince the 4^6. of April 16^7.
" when we iffued out Our Declaration tor Liberty of Confcienco, in the follow-
" ing Terms - -
Hu Majeft'wt Gracious Declaration to all bu loving Subjects for Ltberty of Conscience.
JAMES REX.
IT having pleated Almighty God not only to bring Us to the Imperial Crown
of thefe Kingdoms, thro' the greatell difficulties, but to preferve Us by a more
than ordinary Providence, upon the Throne of Our Royal Anceftors ; There is
nothing now that We Ib earneitly dclire, as to eftablifli Our Government on
fuch a Foundation as may make Our Subjeds happy, and unite them to Us by
Inclination, as well as Duty ; which We think can be done by no means fo effe*
dually, as by granting to them the free Exercife of their Religion for the time
to come, and add that tb the perfed: Enjoyment of their Property, which has
never been in any cafo invaded by Us fince Our coming to the Crown ; which
being the two things Men value moir, (hall ever be preferved in thefe Kingdom?,
during our Reign over them, as the trueft methods of their Peace and Our Glo-
ry. We cannot but heartily with, as it willeafily be believed, that all the People
of Oar Dominions were Members of the Catholick Church ; yet we humbly
thank Almighty God, it is, and hath of long time been Our conftant Senfe
and Opinion ( which upon divers occafions we have declared ) ThatConfcicnce
ought not to be conftrained, nor People forced in matters of meer Religion.
It hath ever been di redly contrary to Our Inclinations, as We think it is to the
Inteveft of Government, which it deftroys, by fpoiling Trade, depopulating
Countries, and difcouraging Strangers, and finally, that it never obtained the
End tor which it was employed. And in this we are the more confirmed by the
Refleeticros we have made upon the Conduct of the four Lift Reigns : For after
all the ^qucnt and preffing Endeavours that were uled in each of them , to re-
duce this-jyagdom to'-fri exad Conformity in Religion, it is vifible the Stic-
cefs has no^tmwercd the Defign , and that the difficulty is invincible :
We therefore out of Our Princely Care and Aftedion unto all Our loving
Subjects, that they may live at eale and cuiet, and f°r the Increale of Trade,
and Encouragment of Strangers, have thought fit by Vertue of Our Royal Pre-
rogative to iffue forth this Our Declaration of Indulgence, making no doubt of
the concurrence of Our two -Honles of Parliament, when We (hall think it con-
venient tor them to meet. In the firft place, We do clecl.ire, That We will
proted and maintain Our Archbimops; Bifhops, and Clergy, and all other Our
bubjeds of the Church of England, in the free Exercife of their Religion as by
Law eftablifhed, and in ths quiet arid full Enjoyment of all their Pcffeffions,
without any moleftation or dilturbance whatfoever: We do likewife declare,
That it is Our Royal Will and Pleafure, that from henceforth the Execution of
all, and all manner oi Penal Laws in Matters Ecclefiaftical, for not coming.
to Church, or not receiving the Sacrament, or for any other Nonconformity to
the Religion eftabliflied ; or for or by rcalbn of the LxercUe of Religion in any
manner, whadbever, be immediately nifpended, and the further Execution of the
(aid Penal Laws, and every of them, is hereby fufpen'.led. And to the end'
tire in- the Liberty hereby granted, the Peace and Security of Our Government
in the Practice thereof may not bs endangered, We have thought tit, and do
herebv ftraitly charge and command all Our loving Subjects, true as we do free-
ly g'vc them leive to meet and fervc God after their own way and manner, be it'
in private Houfes, or Places purpollly hired or built for that tile, (b that they
take
[23]
tiks efpacial Cire tint nothing be preached or taught amongft them, which
may any ways tend to alienate the hearts of Our People from Us on Our Go-
vernment ; And chat their Meetings and Aflemblies be Peaceably,. Openly, and
Publickly held, and all Perfons freely admitted to them ; and that they do
fignifie and make known to fbme One or more of the next Juftice of
the Peace, whan., Place or Places they fet apart for thole Ufes.
And that all our S'jbjeds may enjoy fuch their Religious Aflemblies with grea-
ter Afiurance and Protection, We have thought it requifite, and do hereby
Command, that no difturbance of any kind be made or given unto them, un-
der Pain of our Difpleafure, and to be further proceeded againft with the
uttermolt Severity. And foraCnuch as We are deiirous to have the benefit of
the Service of all our Loving Subjeds, which by the Law of Nature is infepa-
rably annexed to, and inherent in Our Royal Perfon ; and that none of our
Subjeds may for the future be under any difcouragement or diiability (who are
otherwife well inclined and lit to ferve Us) by reafon of fome Oaths or Tefts
that have been uiually adminiftred on fiich Occasions ; We do hereby further
Declare, That it is Our Royal Will and Pleafure, That the Oaths commonly
called the Oaths of Supremacy and Allegiance ; and alfb the feveral Tefts and De-
clarations mentioned in the Ads of Parliament, made in the i$tb. and qotb.
Years of the Reign of Our late Royal Brother King Charles the Second, (hall
not at any time hereafter be required to be taken, declared, or lublcribed by
any Perfon or Peribns whatlbever, who is or (hall beimployed in any Office
or Place of Truft, either Civil or Military, under Us or in Our Government.
And We do further declare it to be Our Pleafure and Intention, from time to
time hereafter, to grant Our Royal Difpenfations under Our Great Seal to all
Our Loving Subjects Ib to be employed, who (hall not take the (aid Oaths, or
lubfcribe or declare the laid Tefts or Declarations, in the above mentioned Ads,
and every of them. And to the end that all Our Loving Subjeds may receive
and enjoy the full benefit and advantage of Our Gracious Indulgence hereby
intended, and may be acquitted and difchaf-ged from all 'Pains, Penalties, For-
feitures and Difabilities, by them or any of them incurred or forfeited, or
which they (hall or may at any time hereafter be liable to, for or by reafon
of their Nonconformity or the Exercife of their Religion, and from all Suits,
Troubles, or Disturbances for the fame ; We do hereby give Our Free and Am-
ple Pardon unto all Nonconformifts, Recufants, and other Our Loving Subjeds,
for all Crimos and things by them Committed or done, contrary to the Penal
Laws formerly made relating to Religion, and the Profeffion or Exercife there-
of, hereby Declaring, That this Our Royal Pardon and Indempnity (hall be as-
good and effed.ua! to all Intents -and Purpofes, as if every individual Perfon
had been therein particularly Named, or had Particular Pardons under Our
Great Sc.il : Whidh We do likewife Declare (hall from time to time be Grant-
ed unto any Perfon or Perfons defiring the fame. Willing and requiring Our
Judges, Juftices, and other Officers, to take notice of, and obey Our Royal
Will and Pleafure herein before Declared. And although the Freedom and
Aflurance We have hereby given in Relation to Religion and Property, might
be Efficient to remove from the Minds of Our Loving Subjeds all Fears and
Jealoufies in relation to cither ; yet We have thought fit further to Declare, That
We will Maintain them in all their Properties and Pofleflions, as well of
Church and Abby Lands, as in any other their Lands and Properties whatfoe-
ver . Given at Our Court at Whitehall the 4th. day of April, 1687. in the Third
Tear of Our Retgn.
Ever (ince We Granted this Indulgence, We have made it Our Principal
Care to fee it preferved without diftindion, as We are encouraged to do day-
ly by Multitudes of Addrefles, and many other Aflurances We receive from
Our Subjects of all Perfwafions, as Teftimonies of their Satisfadion and
Duty, thj^Eftods of which We doubt not but the next Parliament will
plainly fliew , and that it will not be in vain that We have refblved to
ufe Our uttermolt Endeavours to Eftablifh Liberty of Confidence on fiich
juft
[24]
juft and equal Foundations, as will render ic unalterable, and fccure to all Peo-
ple the free Excrcife of their Religion for ever, by which future Ages may i cap
the benefit of what is Ib undoubtedly for the general good of the whole King-
dom. It is fuch a Security We defire,without the burden and conftraint of Oaths
and Tells, which have been unhappily made by Ibmc Governments, but could
never fupport any ; nor fhould Men be advanced by Inch means to Offices and
Employments, which ought to be the Reward of Services, fidelity, and Merit.
We muft conclude, that not only good Chriftians will joyn in this, but whoever
is concerned for the incrcale of the Wealth and Power of the Nation. It would
perhaps prejudice Ibme of our Neighbours, who might lofe part of thole vaft
Advantages they now enjoy, if Liberty of Conlcience were fettled in thefe King-
doms, which are above all others moll capable of Improvements, and of Com-
manding the Trade of the World. In Purfuance of this great Work we have
been forced to make many changes both of Civil and Military Officers through-
out Our Dominions, not thinking any ought to be employed in Our Service ,
who will not contribute towards the eftablilhing the Peace and Grcatnefs
of their Country, which We moft carneftly dedre, as unbiaffed Men may lee
by the whole Condu& of Our Government, and by the Condition of Our Fleet,
and of Our Armies, which with good management mall be conftantly the fame,
and greater, if the Safety or Honour of the Nation require it. We resommend
thefe Confiderations to all Our Subjects, and that they will refleft on their pre-
fent Eafe and Happinels, how for above three Years, that it hath plealed God
to permit Us to Reign over thefe Kingdoms, We have not appeared to be that
Prince Our Enemies would have made the World afraid of, Our chief Aim ha-
ving been not to be the Oppreffor, but the Father of Our People, of which We
can give no better Evidence than by conjuring them to lay aiide all private Ani-
mofities as well as groundlefs Jealoufies, and to choole fuch Members of Parlia-
ment, as may do their part to rinilh what We have begun for the Advantage of
the Monarchy over which Almighty. God hath placed Us, being relblved to call
a Parliament, that lhall meet in November next at farthelh
Quam cjuiJem Regalem Declaraticnem difti Dcmini Regis rune ultimo mentionatam
idem Dominus Rex nunc pojlea fcilicet triccfimo die Aprilts Anno Regni fui quarto fupra
ditto, apud Weftmmafttrium pradtcJum in Comitatu Middlcftxia pradtfio, imprimi &
•per tot am Angliam publicari caufavtt, <jr pro magis folemni demonftratione, notifications,
& manifeflatkm gratia fu£ Regime benignitatis & bencvolentia /«<e ad omnes ligeos
fuos in eadem Dtclarationejjltin-io mentionata [pecificatos poftea fcilicet quarto die Matt
Anno Regni fui quarto, apud Mftmonajlerium praJiclttm in Comitatu Mlddlefexi* pr<e-
diclo idem Duminus Rex debito moda ordina'vit prcut Je^uitur,
At the Court at Whitehall, the qtb. of May, 1688. It is this Day Ordered by
His Majefty in Council, That His Majclty's late Gracious Declaration, bearing
Date the i~th. of April laft, be read at the ufual time of Divine Service,
upon the loth, and 17 th. of this Month in all Churches and Chappels within
the Cities of London and Weftminftar, and Ten Miles thereabout ; and upon the
'id. and ict/j. of June next in all other Churches and Chappels throughout this
Kingdorn. And it is hereby further Ordered, That the Right Reverend the
Bifhops caufe the laid Declaration to be lent and diftributed throughout their
ievcral and relpe&ive Diocefles, to be read accordingly.
Et ulteriuf idem Attornatns dich Domini Regis nunc Generals pro eeJetn Domino Regt
dat Curia hie intclligi & mformari, quod post Confeftionem pradiQi crdinu fcilicet, de-
citno ctlavo die Man, Anno Regni dicli Domini Regis nunc quarto fupraditto, apud
Weftmcnastcrium pr/tditfum in Comitatu M;ddlefexi<s pradicto, WtUielmtis Archiepif-
cop/is Cantuarienjis dt Lambeth in Comitatu Surri£, WiUidmttt Epifcopm Afaphenfis de
St. Afapb in Comitatu Flintia, Francifcns Epifcopm Elienjis de Parochia Sancti Andre*
Hdborn in Comitatu MiJMe ft xi#, Johannes Epifcvpus Ciceflrenfis de Ciceflria in Comitaiu
SuJ/exi*,Tbcmiv Epifcopus Bathentnfts&Ufenen(is de Civil ate Wetti in Comitatu Scmerfetit,
Thomaf
[25]
Thomss Epifcoptts Petriburgenfs de parochid fanc'li Andrea Holbofne in Comitatu Middle-
fexite, & Jonathan Eptjccpra Briftohnfis de Civitate Briftol, inter fe confuluerunt &
confpiraverunt, ad diminuendam Regiam Authoritatem, Regalem Prsrogativam
& Poteftatem, & Regimen ejufdem Domini Regis nunc in pramijfis, ac ad eun-
dcm Ordmem infringendum & eludendum ; ac in profecutione & executions confpi-
rationis prsdidtae, ipji iidcm Willielmut Archiepifcopus Cantuarienfis, Wittielmtts Epifco-
pas Afaphen/is, Francifcz/s Epifcopus Elienfa, Johannes Epifcoptts Ciceftrenfs, Thomas
Epi ;'copztf Bat honenjis &Hrelknfis, Thomas Epifcopus Petriburgenfis, & Jonathan Epijco-
ptis Brilhllenfis dtclo decimo octavo die Mail Anna regni dicli Domini Regis nunc auarto
fupraaido, vi & armis, &c. apud Weftmonafterium pradittum in Comitatu Middle-
Jexitc prteditto, illicite, malitiose, feditiose, & fcandalose quoddam falfiim,h<9:um,
pernicioium, 8c feditiofum libellum, in fcriptis de eodem Domino Rege & Re-
gali Declaratione & Ordine prsdidis ( praetenfu Petitionis ) fabricaverunr,
compofuerunt 8c fcripferunc, & fabricari componi & fcribi caulaverunt, & eun-
dem falfttm, f.clum, malitiofum, pernitiofum, & feditiofum lihellum per ipfos prfdi-
ffum Willielmum Arcbiepiffopttm Cantuarienfem, WiUielmum Epifcopum Afaphenfem,
Francifcum Epifcopum Elienjem, Johannem Epifcopum Ciceftrenfem, Thomam Epifcopum
Bathonenfem & WeUenfem , Ti'jcmam Epifcopum Petriburgenfem , <jr Jonathamum
Epifcopum Britf alien fe m manibus fuis propriii refpeEtive fubfcript um die, & anno, & loco
ultimo menccnatis in pra:(cntid di£li Domini Regis nunc vi & armis, &c. publica-
verunt, 8c publicari caufaverunt ; in quo quidem falfo, fclo, malitiofo, pernitiofo
' ''•"-"» canton
The Humble Petition of William Archbifliop of Canterbury, and of divers of the
Suffragan Bifhops of that Province ( now prefent with him ) in behalf of
themlelves and others of their abfent Brethren, and of the Clergy of their
refpedive Diocefles,
Humbly
THAT the great Averfenefs they find in themfelves to the diftributing
and publifliing in all their Churches, Your Majefties late Declaration for
Liberty of Confcience, proceedeth neither from any want of Duty and Obe-
dience to Your Majefty ; our Holy Mother the Church of England being both
in her Principles and in her conftant Practice unqueftionably Loyal, and having to
her great Honour,been more ihan once publickly acknowledged to be fb by Your
Gracious Majefty ; nor yet from any want of due Tendernefs to Diflenters, in
relation to whom they are willing to come to fiich a Temper as fhall be thought
fit when that nutter (hall be confidered and fetled in Parliament and Convo-
cation. But among many other Confiderations, from this efpecially, becaule
that Declaration is founded upon fuch a difpeniing Power, as hath been often
declared illegal in Parliament, and particularly in the Years l66^, and 1671.
and the beginning of Your Majefties Reign ; and is a matter of ib great Mo-
ment and Confequence to the whole Nation, both in Church and State, that
your Petitioners cannot in Prudence, Honour, or Confcience, fb far roake them-
lelves Parties to it, as the Diltribution of it all over the Nation ; and the fblemn
Publication of it once and again, even in God's Houfe, and in the time of his
Divine Service, muft amount to, in common and realbnable Conftru&ion.
— - In contemptum ditti Domini 'R&gis nunc, & Legum hujus regnt Anglia?,
manifeftum, in malum exemplum omnium aliorum in tali cafu delinejuentium, ac contra
pacem dicli Domini Regis nunc, Ccronam & Dignitatem fttas, &C. Unde idem Atorna-
tm dicli Domini Regis nunc generalis pro eodem Domino Rege petit advifamentum Curif
hie in prami/fis, 5c debitum legis proccffum verfus prsfatos Willielmum Archie-
pijcGpum Cantuarievfem, Willielmum Epifcopum Afaphettjem, Francifcum Epifcopum Eli'
enfem,Johannem Epifcofum Ciccftrenfem, Thomam Epifcopum Bathonenfem & WeSenfem,
Thomam Epifcopum Petriburgenfem , & Jonathanum Epifcopum Britollenfem fieri ; ad
rejj>ondendum dtcto Demino Regi de & in premij/is, &c.
T. Powys.
W. Williams.
H Mr. Atl.
£26 ]
Mr. Atttf. Gen. My Lord wo humbly pray, that according to the Rules of
the Court in fiich Cafes, my Lord Archbifhop of Canterbury, and my Lords the
Bimops may Plead to the Information.
.Mr- Solli. Gen. My Lords the Bifhops are here in Cufiody in Court, upon
the higheft Commitment that can be in this Kingdom, to wit, That of the
King in Council ; and we pray, that according to the Courfe of the Court they
may Plead to the Information prcfently.
L. Ch. Juft. What does his Grace and my Lords the Bifhops lay to it ?
Mr. Sei j. Temberton. Will your Lordfhip give us leave who are of Council
for his Grace my Lord of Canterbury, and the reft of my Lords the Bifhops, to
ipcak a word in this Matter?
L. Ch.Jult. Ay Brother, go on.
Mr. Serj. Temberton. That which we have to defire of your Lordfhip and
the Court, is this, We have now heard this Information Read, and 'tis plain
we could know nothing of this before, the Warrant of Commitment being only
in general for a Libel ; and this being a Cafe of the greateft Confcquencc,
peradventure, that ever was in Weftminjler Hall, (that, I think, I may boldly
lay, it is a Cafe of the greateft Confcquence that ever was in this Court) and
it being a matter of this Nature, that thcfe Great and Noble Perfbns my Lords
the Bilhops are here taxed with, that is, for making a Seditious Libel contain-
ed in fuch a Petition ( as though it was a Libel to Petition the King ) We do
beg this of your Lordfhip, that (it being of this great Importance) to the
end we may come prepared to fay what we have againft it, We may have aa
Im parlance till the next Term.
Mr. Finch. Pray my Lord favour me with a Word on the fame fide, for my
Lords the Bifhops, You Lordfhip fees now, how neceflary the trouble we gave
you before, in making our Objections againft the reading of the Information
was, and what the drift and aim of the Kings Councel was, in the defiring
the Information to be read firft ; for now it is read, What is it that they de-
firc of your LordQrips ? They defire that my Lord Arch Bifhop, and my Lords
the Bifhops being in Cuftody, and brought here in Cuftody, they may be now fb
.Charged with this Information, as to Plead prefently : This my Lord we op-
pofe, and with humble Submiflion we ought to have time to Imparle, and a
Copy of the Information, that we may confider what we have to Plead to
it ; for however we come here into Court, whether legally or not legally, yet
ought we in the one and in the other Cafe, to have time to Confider of our De-
: fence. And my Lord, till of later time this Pra&ice which the Kings Counfel
now calls the Courfe of the Court, was never ufed, nor was any Man required
to Plead immediately j and my Lord, if the Practice of the Court has not been
anciently fb (as I do believe they will fcarce fhew it- to be Ancienter than a few
. years laft paft) then with humble fubmiflion, though the Courfe of the Owe
have been fo for fbme little time paft, yet it is not in the power of the Ceari,
(as we humbly Conceive) to make a Courfe in prejudice of all the Priviledges
that the Kings Subjects are by the Antient Rules of Law intituled to ; they can-
not make a new Law in prejudice of any Right or Priviledge which the Sub-
ject hath, and call it the Courfe of the Court : Now that this which we defire
for noy Lords the Bifhops, is the Right and Priviledge of the Subject, is moft
manifeft ; for there might be many Defences that a Man may have to make to
an Ac'cufation of this Nature, which it: i^impoflible for him to know at the firft
hearing of an Information read, and yet which would be neceflary for him to
make ufe of, or at leaft it would be impoffible for him to make ufe of in luch a
manner as the Law doth allow of and require. It may be the Pleas which he
has to Plead may be luch as that ho has not time to put into form ; there may
be Matters upon the hearing the Information read, that it would be neceflary
for him to give anfwer to, which he knew not of before, and therefore may nei-
ther have Materials ready, nor be capable of putting them (if he had them rea-
dy) into fuch Form as the Law requires. They tell you on the other fide, thac
if a Man be brought into Court by Legal Procefs, he may be Charged with any
Information whatlbever, that thoy arc not tied to the Fa& alte-idged in the
Commitment,
C'7]
Legal Defence, for he knows not his Accufation ; for tho' he think it may be
for that for which he was Committed, yet it may prove otherwife, and then he
can be no way provided with Materials for his Defence, but he muft lofe all
Advantages which the Law gives him for his Defence. My Lord, if this be the
courfe of latter times, yet you will not take that to be fuch a Law, as is binding
to all future times ; and we are fure the King's Counfel cannot Oiew, that this
was the Ancient Practice, for that was quire otherwife.
L. C. Juft. Mr. Finch, you were not here, I fuppofe, when this Qiicftion came
in debate in this Court lately, in the Cafe of a very great Perfbn ; 'twas urged
very carneftly and very learnedly by one that ftands by yotr, we upon that De-
bate asked Sir Samuel Aftry, what the Courfe of the Court was, and he told us,
that the Courfe of the Court (of his own knowledge for all the time that he
had fat as Clerk of the Crown in this Court) was, that when any one was
brought in Cuftody, or upon a Recognizance, they were to plead prefently.
Mr. Finch. Sir Samuel Aftry has not been here lb very long, as to make the
Practice of his time the Courfe of the Court..
L. C. Juft. But I will tell you what he faid further, if you will hear me; he
faid, he had enquiredtof Mr. Waterhoufe, whom we all know to have been an
old Clerk in the Crown Office, and he told him, that that had been the practice
all his time.
Mr. Serj. Ptmb. My Lord, I hope the courfe of the Courts of IVeHtminjter-Hall
fhall not depend upon the Certificate of fuch a one as Mr. IVaterbeufe, who is a
Man (we all know) is fuperannuated, and very defective in his Memory.
Mr. Juft. Towel. Certainly what they defire for the Defendant is very reafb-
nable, for I take the Point to be only this ; whether a Man may be compelled,
being in Cuftody, to Plead to an Information prefently.
Mr. Jutt. All:bsne. Pray Brother Powell {bare me a word in this matter ; Mr.
Finch, I fuppofe you labour that, the Court will not deny you, that you may
have time to plead according to the courfe of the Court : We are not making
new Courfes for particular Facts, that by my confent we will never do ; but if
you fay fuch a thing is not the courfe of the Court, and the King's Counfel
affirm it is, how fhall this be determined ? and from whom can we take our In-
formation to determine what is the courfe ? I am fure there is none of us that are
here now, can pretend to tell what the Ancient cou?le was, for my part I de-
clare it, I cannot; and I know no reafbn there mould be any Novelty introduced
into the Court upon any ground or realbn whatfoever, nor will I confent to any
while I fit here. Therefore I defire to know what is the Ancient Courfe, and
how we (hall come to the knowledge of that Com fe, if not by the Certificate
of thofe who have been Ancient Officers of the Court ?
L.C.Jujt. Nay, that is certain, the Court will bring in nothing new in any
fuch Cafe as this..
Mr.Jutt. Attibme. If that hath not been the Antient Courfe without exception,
I am againft it ; I know no Reaibn my Lords the Bifhops fhould have any thing
new put upon them ; on the other fide, they mult net expert to have the An-
cient Courfe of the Court declined in their Cafe.
Mr. Pcllixf. Pray, my Lord, hear me a little in this matter ; 'tis not my defire
that any Law fhould be altered for any particular Cafe, and the Courfe of the
Court I know is the Law of the Court ; but I humbly crave leave to fay, That I
take the Ancient Courfe of the Court to be quite otherwife , than what the
King's Counfel would have it ; there may be particular things done now and
then, perhaps in particular Cafes, and upon particular Oceafioiii, which will not
make what is fo done to be the Courfe of the Court* nor be a binding Rule to
you. Now as to this matter, of time or no time, to plead to an Information,
I remember the time very well, when I and Ibme others that Itood at the Bar,
and wondred when we law this practice coming in, and thought it a very hard
and mifchievous thing,for (in truth) the lev oral Plots that have been.and the beats
of
[381
of men about thole things, have brought in this Courfe ; for certain I am, and 1
dare aflinn there never was any fuch Courfe here before, neither upon Warrant from
the Chief Juftice, nor upon Recognizance, or any other Procefs, was a Man com-
pelled to plead inftandy, without having a Capias in the regular form after a
Contempt for not appearing upon Summons : Truly, my Lord, we had no In-
tereft in the matter one way or other, to make us fcruple it any otherwife than
as we were concerned, that the Law and Juftice of the Nation fhould have its
true and ancient Current. And this I rcan aflure your Lordihips , that here
was botli my Lord Chief Juftice SaunJers, and Mr. Serj. [Lit and my lelf, who
take notice when this was firft offered at, to make a man plead immediately
without giving him time to cenlider what he (hould plead, could not but lay
among our felves, that it was an unreafonable thing ; and we were inclined to
fpeak to the Court to inform them of the Confequence of it, which needs muft be
very mifchievous. Sir Samuel Aftry, we know , came to be Clerk of the
Crown in my Lord Scroggi's time ; we know 'tis ufual and cuftomary tor the
Court to ask what is the Courfe of the Court in doubtful Cafes, and to re-
ceive the Information from the Officers of the Court on both fides. If it be on
the Plea fide from Mr. Ajlw, if on the Crown fide, from Sir Samuel A$ry, con-
cerning things of Practice, but I did never think that what they reported was
final and conclufive to the Court: But to make this matter clear, I humbly pray,
that you would pleafetogive order for the fearch of oj^ Precedents, how the
old Pradics really hath been ; every thing that has been done in hot times, is
not to be made a (landing Rule : If there do any fuch thing appear to have
been done and pradtifed antiently, truly, my Lord, I will fubmit, and fay I am
under a mighty miftake; but it this which is now urged for the Courfe of the
Court, is nothing but what the Zeal of the Times, and Heat of Perfections
hath introduced ; furely that is not fit to be a conftant Rule for the Court to go
by ; for every one knows, that the Zsal of one time may bring in that by fur-
prize upon one Man, which when things are cooll, or at another time will ap-
pear to be plain Injuftice. We have indeed feen ftrange things of this kind done
before, but I hope to God they are now at an end, and we (hall never fee any
jfuch thing done hereafter ; and as for this particular Point, I think it is a wonder-
ful thing in the Confequence of it, if the Law fhould be as they would have it :
Here is a long Information juft read over to a Man ( but whether long or ftiorr,
as to the main Point, 'tis the fame) and you fay the Courfe of the Court is, he
muft plead to it immediately ; furely matters of Crime that require Puniftunent
to be inflicted on men, are of as much Confequence and concern, as any Civil
matter whatlbever ; and Men are to have their Rights in thole matters preferved,
as well as in other matters, which is all I prels; for liippofe a man has a ipecial
matter to plead, as particularly fuppofe it be the King's Pardon, I cannot give
this in Evidence upon a Trial after not guilty pleaded, then I ought to plead it;
but what if I have it not ready, 'tis not telling the Court of it, without fhew-
ing of it, that will do ; and it may be a man that is taken up, and brought
hither in Cuftody, cannot have it ready to (hew ; but yet then by this Rule a
man ftall lofe the benefit of his Plea, by being compelled to anfwer immediate-
ly : But they fay, the Court will do right , I fuppofe they will; and my Lords
the Bifhops in this cafe I believe do not diftruft, but that the Court will do right;
but I never thought the Law was brought to that pafs, that fuch things as thele
were left wholly in the difcretion of the Court ; certainly Imparlances, time to
plead, and juft Preparations for a man's defence, are things that the Law has
ietled, and not left in the difcretion of the Court ; and truly to me it leems all
one utterly to take away a man's Defence, as to hinder him of the means to pre-
pare for it. My Lord,' here is an Information before you againft thele Noble
Lords, it is a matter of great moment, and tho', I hope inGod, there is no great
caufetorit, yet however iince fuch Perlbns are concerned, and 'tis a matter of
iuch great weight, I hope you will give us fuch an Imparlance, as if we had this
day appeared upon the ordinary Proccls, which is an Imparlance until the next
Term.
L.CL
L. Co. Juft. There is a difference between this and that other Cafe, if my
Lords the Bifhops had appeared upon the Summons, they would have had an Im-
parlance of Courfe; but when they are brought up hither inCuftody, that mighti-
ly alters the Cafe, but that we may not be too hafty in a thing of thi , nature,
let the Clerk of the Court be confulted with, that we may know what the
true Courfe is.
Mr. Att. Gen. My Lord, wo pray Sir Stmuel Aftry may be examined a little
about it.
Mr. Jujt. AUybone. Mr. Pottixfen, I believe the Court is unanimous in their Re-
Iblutions of making nothing nsw in this Cafe ; but pray give me leave to tell
you, this is not the firft time that this Queftion has come to be agitated in this
Court fince I came hither. Now from whence can the Court take their me.ifures
to be rightly informed what the Practice of the Court is, but from the Informa-
tion of the Officers of theCotirt, who by their conftant Impioyment, are moft
capable of knowing what the Courfe is. Now if you come to offer any thing
that may be matter of doubt to the Court, concerning the Pra&ice of the Court,
you having known that this thing was controverted before ('for fb it has been )
fhotild have provided your felf with fbrnething that muft be a reafbnable motive
for us to doubt ; for this has not been only once, but often moved ; and our Of-
ficers have been confulted with concerning this Queftion, which took its rife
from fuch Objections as you have made now: Now for you to tell us, That you
defire that we would look into Precedents, is, methinks, pretty odd ; if you
had brought us any Precedents, it had been fbrnething : And withall I muft tell
you, that you muft not reckon the favour of the Court in any particular Cafe, to
be the f landing Rules for the Practice and Courfe of the Court ; but inftead of
bringing Precedents, you only offer your own Thoughts, and thole would cre-
ate no doubt in us, but what has been before fatisned upon Examination of the
Officers of the Court.
Mr. PoUtxfen. Pray Sir, will you give me leave to anfwer you one word.
Mr. Jujt. Powell. Truly I have not obferved that ever this Point was ftarted
fb, as to beget a Queftion fince I came hither, but only in the Cafes of the Qtc
Warrantors ; and truly in that Cafe I thought it hard they fhould be denied time
to plead, efpecially the Conkquence being fo fatal.
L.Ch.Juft. Yes, yes, Brother, it has been feveral times.
Mr. Juft. Powell. Truly, my Lord, I have not obferved it, nor do I remem-
ber it.
Sir K^i Sawyer. My Lord, I have always taken the diftinftion, as to thefe
Matters, to be this
Mr. juft. PowM. But, my Lord, if the ancient Courfe of the Court hath
been to grant an Imparlance, and a Copy of the Information before they plead,
I fee no reafon why my Lords the Bifhops fhould not have the benefit of that
ancient Courfe; for if a man that is fiied at Law for a Two penny Trefpafs,
(hall have that advantage as to receive a Declaration, and have time to plead
what he can to it, why fhould not my Lords the Bifliops in a matter of fb
great weight, have the fame advantage too? But indeed, if the Courfe of th*
Court had been anciently otherwife, I can fay nothing to it ; for the Courfe of
the Court is certainly the Law of the Court.
Mr. Jutt. Allykone. Brother Powell you lay well, if they did produce any one
Precedent to give us occalion to doubt in the matter.
Sir Rob. Sawyer. Pray, good my Lord, will you give me leave'
Mr. At tor it. Gen. Why, Sir Robert Sawyer , will you never have done ?
Mr. Soil. Gen. No, they are all fo zealous, and eager in this Cafe, that
they Wont permit either the Court, or any body elfg to fpeak a word but
themfelves.
Mr. Serj. Pemberton, Good Mr. Sollicitor, give us leave to anfwer the
Objection that the Court hath made to us ; we would fatisfie your
Lordfhip where the Dift'mdtion really lieth , where there has been an
Opportunity for the party to come in, as by Summons or Subpama, or the
tike, and he has flipped that opportuaity, and fo the King is delayed, in
I that
that Cafe they always ufed to put the Party upon Pleading pvefemly, when
he was taken up upon a Capias, and bought in Cuftody ; but when there
was never any Subpana taken ont (as the Cafe is here,) Ib th«it the Party ne-
ver had an opportunity to come in and render himfelf, and appear to An-
fwer it according to the due Courfe of Law, an Imparlance was never yet
dcnyed, nor time to Plead ; and that is the Cafe here.
Sir Robert Sawyer. My Lord, Mr. Sirjant has given you the true diitinftion,
where Proccls has gone out to fummon any one to appear to an Information,
and he hath failed to appear according to the Summons, and the Prosecutor for
the King takes out a Capias, if he be brought in upon that Capias, the Ancient
Courfe has been fo as they fay : But for that other matter, where a Man
comes in upon a Commitment at the firft Inftance, and an Information is put
in juft as this is, the fame Morning and not before ; if they can (hew any o^e
Precedent of this kind Fifteen years ago, I would be contented to yield that they
are in the right, but I am fure they are not able to do it : In Sir Matbtiv Halet's
time when this was moved, it was refufed ; and he was clear of another
Opinion.
Mr. Attor. Gen. I hope now my Lord we (hall be heard a little for the
King, and I cannot forbear oblerving in the tirft Place femewhat that tliefc
Gentlemen have offered at, who are now inveighing againft the heat of the
Times, when a great part of that heat, we know who were the Inflamers of ;
but what is all this to the purpofe? The Queftion is barely this, Whether when
a Man is brought in Cuftody into this Court, and Charged with an Informa-
tion, he fhall not by the Courle of the Court be compelled to Plead pre-
fently.
Sir Robert Sawyer. To Indidments for Treafon and Felony, he flull be
Compelled to Plead prelently, but not to an Information for Mifdemeanours.
Mr. Juft. Towel. It feems to me very hard he fhould.
Mr. Attor. Gen. Sir there are many things that leem hard in Law, but yet
when all is done, the Judges cannot alter the Law ; 'tis a hard Cafe that a Man
that is tryed for his Lite for Treafon or Felony cannot have a Copy of his In-
didmenf, cannot have Council, cannot have his Witnefles fworn, but this has
been long practiced, and the ufage is grown to a Law, and from time to
time it hath been fo taken for Law, it cannot be altered without a new Law
made, as it hath been heretofore, 16 it muft be now, till a greater Authority
alter it ; and ib, as to the Cafe here at prelent, if it were a new Cafe, and
it was the firft Inftance, I muft Confefs 1 think I mould not prets it, but if this
be the Conftant Praftice of the Court, and if thefe Gentlemen that now op-
pole it, Ibme of them Minifterially, Ibme of them Judicially, have themlelves
Eftablifhed this Pra&ice, they have no realbn to wonder, that we follow them
in it, we do not blame them for what they do now ; for Men when they are of
Council may be permitted to argue for their Client contrary to their former
Opinions, but if thefe things by their procurement have done thus before, fure-
ly without Offence we may pray the like may be gone now. JT»s our duty on
behalf of the King to delire that he may have Right done him, as well as they
on the behalf of my Lords the Bifhops, and for the ulage to Cite Precedents
were endlels, efpecially of late times, and thele Gentlemen know them all very
well, for they were Ibme of them Parties to them themlelves, and we can do no
more, nor need, than to put them in mind of their own doings, whether it was
(b before their time or nor, it concerns them to make out and retra& their own
Errors ; but in our obfervation, if ever this was prefled or inlifted upon
on the Kings behalf, this Courle has always been perfued.
Sir Robert Sawyer. For a Precedent my Lord there is the Cafe of my Lord
Hollis, where there was given time after time.
Mr. Soil. Gen. That was only time to argue the Plea to the Jurildidion of
the Court.
Mr. Juft. Poivel. Mr. Solli. have you ever known it contefted, and upon Dc-
katclb Ruled, in an Information fora Mifdemcanour, as this Cafe is t
Mr.
Me. Sol. Gen.*If you pleafe to ask Sir Samuel Aftry, he will inform you how the
Gourfe has been.
L. C. Juft. What fry you, Sir Samuel Aftry ?
Sir Sam. Aflrj. My Lord, when I came into this Place, there was an Ancient
Gentleman that had been long a Clerk in the Office.
L. C. Juft. How many years is it fince you came into this Office ?
Sir Sam. Aftry. About a dozen years, I think, my Lord; and he fat in this
place where Mr. Harcourt does now, he was always accounted a Loyal, Honeftj
and Intelligent Man, that is Mr. Waterhoufe, who is now alive ; and when I carnd
into my Office, I took my Inftru&ions in a great meafure from him, and asked
him, what the Courfe of the Court was, in luch Cafes which I my felf did not
underftand ; for tho' I had been an Attorney Twenty years, yet it was on the
other fide, the Civil fide ; and tho' I knew fome things of my own knowledge,
yet I did not fb well know the whole practice of the Court, and particularly I
asked him, what was the Courle of the Court in this Cafe that is now in Qiie-
llion, and he told me, that in all his time and experience, if a Man appears
upon a Recognizance, or was a Perfbn in Cuftody, or appeared in propria per-
fona, as a perfbn Priviledged, he ought to Plead at the firft inftance, and accord-
ing to that pra<5Hce, when Sir Robert Sawyer was Attorney General it was the con-
ftant practice, and I am fure he knows it is no new thing.
Sir Rob. Saw. But upon what Informations, Sir Samuel Aftry, were they Infor-
mations upon Mifdemeanors ?
Sir Sam. Aftrj. Yes, feveral.
Sir Rolf. Saw. But was there not Procefs taken out firft to call the Party in ?-
Sir Sam. Aftry. Yes, where Procefs was never taken out.
Mr. Att. Gtn. For how long time is this that you (peak of your own knowledge,
Sir Samuel?
Sir Sara. Aslry. About a dozen years.
Mr. Serj. Pemb. It was never done till very lately, but after the Party was in
Contempt for not appearing.
Mr. Sol. Gen. I would ask you, Sir Samuel Aftry, one Queftion : Was the ufual
Procefs of Subpcena firft taken out ? for Mr. Serjeant Pemberton fays it was, do
you find any Warrant for fuch a difference as that?
Mr. Serj. Pemb. Do you find any fiich Cafe as this is?
Mr. Sol. Gen. Nay, pray Mr. Serjeant, give us your favour, and let us ask our
Queftions according to your own Doctrine. How do you find the Pra&ica to
have been as to that diftinaion they have made ?
Sir Sam. Aftry. Sir, I would be very loath to inlarge the Precedents of the
down Office furthar than the truth is ; I tell you whence I took my Inftru&ions,
from Mr. Watcrhcuft, who was an Ancient Clerk in the Office, he has been in that
Office Sixty years, and the Inftructions I took from him, were, that this was the
Pi a&ice all his time, and it has been alTerted all my time ; it has been often con-
tcfted, I confefs, and Mr. Pollixftn has always oppofed it, and moved againft it,
but it has been always ruled againft him : I know it was againft his Judgment,
but the Court always over-ruled it.
Str Rob. Saw. Sir Samuel Aftry, can you give any one Precedent before you
came into this Office?
Sir Sam. Ajlrj. Sir, I can go no farther than this that I have told you, what
Information I received from him.
Sir Rob. Saw. What i? all this but a Certificate from Mr. Waterhcufe ?
. L. C. Jufi. We can be informed no otherways than by Certificate from the
old Clerks of the Office.
Mr. Serj. ?emb. Alas, he is a Child, and not fit to do any thing.
Mr. Pollixf. W« all know Mr. W'aterboufe very well, he is a very weak Man,and
always was fb, and there is no depending upon any thing that he fays.
Mr. Sol. Gen. Pray, my Lord, will you hear us a little for the King.
Th*
[32]
\
The Etjhop of Peterborough wbifptrin^ -with Sir Rob. Sawyer, Mr. Sdli-
citor faiJ to him, My Lord, you had better look anttber way, and lock to-
wards the Court, for there jour bufmtfs lies.
L. Cb.Jufl. Well, Mr. Sollicitor, What fay you ?
Mr. Soil. Gen. My Lord, it appears plainly, that the King is in pofleffion of
this Priviledge, and has been fo for thefe dozen Years, for fb long the Juftice
of the Kingdom towards all the Subjeds, hath run in all the infrances of it
in this Channel; and tho' it has been conferred as often as Mr. Polltxfen has
been of Counfel for tha Defendant, in ftich Cafes, it has always been ruled
ngainft him ; he indeed has made his continual Claims ( Sir Samuel Aftry faies )
he has raifed the Duft, and made a Hue and Cry, but it has always gone
againtt him. And I would ask the reft of you Gentlemen that are of Council
for my Lords the Bifhops, ( for j(bme, or one of you I am fure, has been con-
cerned in every Information that has been exhibited in this Court for this nine or
ten Years laft paft, I would ask you ) whether in any Information that you
have been concerned in , if the Party being brought in by Procefs, indited
to have time and an Imparlance, it was ever granted him. I know you will
not fay, it ever was ; why then mould there be more done in this Cafe, than
has been done in all other Cafes this ten Years ? Tis not fiifficient to make
Declarations againft the unreafonablenefs of the Practice, for it is but what
you have done your lelves , and infilled upon for Law ; and all thofe
men that upon Informations have been compelled to plead , have had Injury
done them ; or elfe thefe Lords will have no Injury by the Couit's taking
the fame Courfe. It is true , my Lords , the Bimops are Peers, and hero
are Seven of them, and Seven Lords go a great way ; they make a Com-
mittee , I think , in the Houfe of Peers , and a mighty matter is made
of it, that this is the Cafe of fb many Lords : But will you alter the Courfe
of the Court, becaufe Seven of my Lords the Bifhops are concerned in it,
and they make a mighty ftir about the Reafbnablenefs of the thing ? How
can it be believed that the Law will not give a man time to make his De-
fence ? They agree themfelves , that if it were in the Cafe of Life and
Death, they mult plead prefently ; and doth not the fame Reafon hold?
and may not an Argument be drawn a fortiori , in the Cafe of a Mifile-
tneanour ? If I am not to have time when I plead for my Life , there is
lofs Reafon I fhould have time to anfwer a Trefpafs : But , my Lord , 'tis
n6t Reafon that weighs in the Cafe, 'tis the Courfe of the Court, which is
the Law of the Court that we are contending for ; and what is there in the
Cafe that fhould require fb much time for my Lords the Bifhops to plead to it?
It is charged in the Information, that thefe Noble Prelates did make a Libel
which was produced by them , and publifhed in the Kings prefence, they can
eafily tell whether they have done this, or not done ic : what can they plead,
but the general Iffue ? They talk of fpecial matter to be pleaded, but can they
(hew any more that they can lay, than what any poor ordinary Countryman,
if he were here to plead to an Information, could fay ? that is, whether he was
Guilty, or not Guilty. Thefe Lords can tell whether it be true, that they did
publifh the Paper laid in the Information, and then your Lordfhip will tell them
what will be the Confequences of that Publication in point of Law. We fay
all this was done at Weftmitfter, there the Scene is laid, and it is not an Infor-
mation for an old flale thing done a great while ago, but a thing that was done
yefterday, and a thing notorious enough, their conferring with the King about
his Declaration of Indulgence. And as to what Mr. Fmcb has faid, That
this is a Novel Invention , and a Trick to rob a man of his juft Defence •,
fure he forgets who it is that taught us the Trick , if it be a Trick, we
have learnt it from thofe that trick'd before us , and what is it that
ttefe
[33]
thcfe Lords do define? they would have an Imparlance till Michaelmas Term:
does or can your lordfhip think they ask that which is reafbnable ? to have fix
Months timefto plead not Guilty to an Information for a Libel ; and when (o ma-
ny men have been denyed itfbrmerlyaipon theinftigation of thofe very Gentle-
men, that now prels (b very hard to have it granted ; fiire ihey muft expert to
be denyed it too ; and all this while thefe Lords lye under this accufation,which
is not fo trivial a matter as (bine would make io , 1 believe my Lords the Bi-
fhops have a defire to be cleared , I firppofe it is only their Council that defire
to delay it , upon what ground I know not, I believe they themfelves would be
glad to remove the imputation , which would be bell done by a Tryal, and
the fbonerthe better: If they have a mind to juftilie themfelves, this is the rea-
died courfe for it , and they may do it prcfently, by Pleading Not Guilty ; My
Lord, I know lam in a great Auditory , and abundanceof your Lofdfhipstime
has been taken up already, I prefs it therefore for the fake of the King, and for
the fake of my Lords the Biihops , we fhall elfe have all hang in fufpence, and
hang in the Air for fix Months longer , therefore let the matter be put upon a
fair IfTue, fo as it may come to a fpeedy Determination ; I am fure if thefe Lords
be innocent to day , they will be innocent to morrow, and if it were my own
cafe, I would defire to have it Tryed as fpee,dily as I could , and therefore I
pray they may plead immediately.
Mr. J. Pmvel. Mr. Sol!. What do you fay to the Difference that was taken
between a perfon that was brought in Cufiody at the firfr, inftance where there
is no contempt to the Procefsof theGourt , and one that comes in hereby Ca-
ftas, upon default of appearing at the Summons.
Mr. Fsncb. My Lord , If I apprehend them aright, they give us more than
we did ask , for Mr. Solicitor has laid it down as a Rule , that if a Man is ta-
ken upon a Capias in a Mean Procefs , he fhall have no Imparlance.
Mr. Soil. Gen. No, you are greatly milraken , Sir , and I pray don'c lay down
Rnles for me.
Mr. Fmcb. If lam Sir, I beg your pardon, but this I am fure of, if a Venire
. goes out, which is in the nature of a Subpoena , and the party appear to it,
that being the firft time he could come into Court , you cannot force him to
plead to an Information, but he has an Imparlance of Courfe.
Mr. J. Powell. Methinksit feems very reafonable , that this forcing a Man to
pleau prefently fhould be only a punifhment fora Contempt of the Court, and
pray, were my Lords the Bifhops in contempt to the Court when they came
here to day ? Certainly they were not , for no man is in contempt , but ho that
being ferved with Procefs, difobeys that Procefs , and if my Lords the Bifhops
had been fcwed with a Sabpmra and had not appeared , then there would have
gone out a Capias to bring them in , and fo they would have come in upon a
Contempt, and then they would have come within the Rule.
Mr. Sofl.Gtm. If yon have a mind to it, you may ask Sir Samuel Aflry a-
gain.
Mr. An. Gen. If they come in upon Bail they ought to plead prefently.
Mr.J. Alljbme. Mr. Finch Pie tell you what flicks with me, truly you could
not but be aware that this would be required of you ; for this very thing was
in debate laft Term , and you know what Rules the Officer (aid was the Courfe
of the Court , why did you not therefore come prepared with fbme Prefidents,
to (hew us what the courfe of the Court 'is ?
Mr. An. Gen. Truly my Lord, at this rare , we fhall keep your Lord/hip here
all this Afternoon , if thefe Gentlemen will not be faiisfyed with the Rule of
the Court , and for an Anfwerto what Mr. Juftice Pawel fays, if any Ryotbe
committed in the Countrey, and the Parties are bound by Recognizance
to appear here, that is no procefs of this Court, and fb confequently there
can be no contempt, and yet they muir Plead prefently.
Mr. J. Powell. There is a particular reafbn for that , becaufe they are bound
by Recognizance , Sir Samuel Aftrj and others fay , that if they come in by Re-
cognizance they muft plead prefently.
Mr. SoU. Gen. But for the thing it felf, (that the people that hear us, may not
imagine that this Court puts a hardlhipupon my Lords the Bifhops, more than is
done in other Cafes) it is befr. to keep the fame Rule as is in all other Cafes :
K for
for when all is done, when Jufticc goes with an Equal Current 3 without any
regard to one perfbn or other , then every body is fafe , and all perfbns con-
cerned do their duty ; (o in this ca(e, here be no Prefidents produced, wherein
it has been otherwife , then can no perfon complain but that things go in this
Cafe, as they do in all other Cafes ; perhaps fuch a Cafe (as to the Fad of it)
never hapned before, but for the Law of it, that is plain , and the fame as in
all other Cafes ; for that there may be an Information againft my Lords the Bi-
llions, as well as other people, if they make Libels , fine it is no doubt at all ;
and if an Information lies agai nil them for it , they are under the fame Rule*
as others are : but thefe Gentlemen talk of being furprized , and that this is the
fii ft time they have heard of this Information , but have we told any news in
this Information ? Was not all that is contained in it, notorioufly enough known
before ? Was not the Kings firft Declaration very well known ? Was not his le-
cond Declaration very well known ? Was not his Order of Councel for the Rea-
ding of the Declaration very well known ? Is not your own Petition a thingve-
ry well known to yourfelves and all the world ? Then thefe being the particular
Fa&s,of which this Information is made up, and we only fay you did do this Fa«a,
and we ask you, did you do it, or did you not ? Can there be any great furprizein
this ? My Lord, I cannot fee any thing that alters this from the common Cafe, but
only their being Peeis, and fince tfiis quefHon has been heretofore under contett,
thete Gentlemen have had time enough to have prepared Precedents , to differ
this from the common Rule, if they could j but fince they cannot, we defire they
may have the fame Rule, that is in all other Cafes, and then to be fure, all will
go right.
L. C. J. Sir Samuel Aftry, pray will you tell us, whether ever the Court ufedto
grant an Impai lance where a perfbn comes in in Cuftody ; or did you ever know,
w hen a perfon comes in upon a Commitment, time wasgiven him to Plead ?
Mr. Ser. Pemberton. Have you ever known it difputed, and denyed ?
Sir 5. A fry. My Lord, I have known that 'tis in the difcretion of the Court
to grant what time they pleafe.
L. C. J. Is it the courie of the Court to give an Imparlance?
Sir S. A/h)'. No, 'tis the favour of the Court, and if the Defendants have at
any time Jhewed areafonable Caufe, that they have fpecial Matter to plead , or
any other caufe allowed by the Court, the Court has fbmetimes Indulged them
fo far, as to give them rime.
L. C. J. But how is the ordinary courfe Sir Samuel Aftry ?
Mr.J. Attybone. Ay, for as I laid before, things done in particular Cafes in fa-
vour, are not Precedents.
Sir 5. Aftry. I have told your Lord (hip the Courfe is this, that any perfbn
that appears upon a Recognizance, or is taken up by your Lordfhips Warrant, or
by a Warrant from a Juftice of Peace, or any other way in Cufrody , or any
Officer of the Court, that is a Priviledged perfbn , and that muft appear »» pro-
pna perfona, muft plead prefently ; if the Court upon particular Reafons do not
give him time ; arid this I received Information of, as the practice of the Court,
from Mr. Waterbou/e, who had been a Clerk in the Office fixty years.
Mr. Sail. Gen. He laid fb before, but thcfe Gentlemen will never be contented,
unleis they have a new Law made for them.
Mr. Pclltxftn, My Lord, I would not unneceffarily trouble your Lordfhip ;
but truly, this is a cafe of great Concern. And firu of all, I think we fhall all
agree, thar what has beet) ufed for ten or twelve years part will not make the
Courlc of the Court, and next I perceive they do not bring any one Inflance
for any proceeding of this fort above ten or twelve years old, but then ( fay
they ) on the other fide, Why do not you bring Prefidents, that it has gone o-
therwife heretofore ? My Lord, thaj cannot be done, for it is a Negative on our
fide, that this which they defire is not the Courfe of the Court ; but then ( as
it is impoffiblc ) to prove a Negative, fo the Proofs fhould come on the other
fide, that this has been done : they ought to fhew it, if there has been any luch
thing as a franciing^RuIe, or elfe, it Jhall be prcfumcd an Innovation, as being
contrary to all Reafbn j But My Lord, becaufe they put it upon us, there is this
Proof on our fide, as much as a Negative can afford : In thofe proceedings,
that were in the great Cafe of the Habeas Corpus, there was an Information a-
gainit
[35]
gainft Elliot and others, they h.id time given them to Plead over and over, fb
thac there is one Precedent : And as many as rhefe Cafes in former times as can
be found, will fliew that this was always the Courfe j but pray ( (ay they ) pro-
duce us one Inftance, that ever there was a man that came in upon a Recogni-
zance,that had time to Plead ; truly My Lord, I cannot juft now tell whether any
fuch Inftance can be produced, but I verily believe there may be a great many>but
I turn it upon them, and that with great Reafon, with Submiflion to your Lord-
fiiip : Shew me any man ( if you can ) above a dozen years ago, that had not
time allowed him to Plead j Ay but ( fay they ) Mr. Waterhoufc an Ancient
Clerk of the Crown-Office, that has been there thefe fixty years, hath certified
thac this hath been the practice of all his time : My Lord, we that have been
Converfam in the bufineisof this Court,did all very well know MrWaterhoufe when
he was here, and fat in Court in the place of Sir Samuel Aftry.
Sir S. Aftry, No, Sir, It was in Mr. Harcourfs place.
Air. Tolltxftn, Well, he executed a place here, and 'tis no matter whether he
were Matter of the Office or no ; but I think we all knew him very well, he
was a man ai lame in his bufmefs as could be, for there are fbme men that will
never do bufmefs well, let them be never fo long at it ; and he was as weak in
the practice of the Court, and every thing elfe, as 'tis poffible for one that has
been bred in an Office, can be ; and at this time he is grown fo decreppit and
fuperannuated, that you may as well depend upon the Certificate of an old Wo:
man, as any thing that he (hall fay in fuch a Matter as this ; he is now almofi
fourlcore years of Age, and has loft that little Memory and Underftanding he
had, but if his Certificate muft be depended upon, becaufe of his ftanding in
the Office ; pray My Lord, let him come hither, and do you ask him what he
has to fay in this Matter.
Mr. Soil. Gen. Aye, that is very wejl indeed.
Mr. PvUixfen, Good Mr. Sollicttor fpare us, certainly there needs not iuch
great haft in this Matter, we are upon a bufinefs of very great Weight and Con-
cernment, for you are now making a Law for the whole Kingdom in point of
Pra&ice, in Cafes of this Nature. We do fay, indeed, that by the Reafon of
the Heat and Zdll of thefe laft ten years, fiich a Ufage has been introduced,
but Sir Samuel siflry tells you, it was oppofed, and I hope that neither I, nor the
thing will be the worle thought of, becaufe I oppofed what I thought an unrea-
fonable and new Invention ; My Lord, I know in the Cafe of the City of Lon-
don, we had time to plead a whole Vacation after an Imparlance , and were not
at all hurried on, as the King's Counfel would do in this Cafe ; My Lord, if
they can produce any Ancient Prefident for it, I will fay no more, but there is
no Cafe in Print in any of our Books that ever I read or can remember, that
countenances fuch an Opinion ; a man by this means may loofehis juft Defence,
and he has no Remedy, nor will it ever be in his Power to retrieve it, for he
may be brought on a liiddain into Court upon a Warrant, and when he is here
he fhall be charged with an Information, and prefently he muft Plead not Guil-
ty, becaufe he has not time to prepare a Pica of any other Nature, let him have
never fo much other fpecial Matter, or occafion for it ; if you pleafe to let this
Matter be examined what the Prefidents are, and what Age thofe Precedents are,
then perhaps your Lordfhip will get fbme fatisfa&ion ; but otherwife, if the bare
Certificate of the Mafter of the Office is to be a Guide to the Court, what is
Law, and what is not , we fhall be in a very uncertain Condition , efpecially
when the Matter comes in the very face of it, a great deal of Unreafbnablenefs
and Injultice. They on the other tide will argue that is not more unreafbnable
then the pra&ice in the Cafe of Treafbn, and Fellony, where Perfbns are com-
pelled to Plead inftantly. But under favour, My Lord, there is no Comparifon
between this Cafe and th.it, though I know it was always thought a hardfhip and
defeat in our Law, that a perfon fhould be denied time to plead in cafe of Life
and Death, except he can fhew fbme fp<jciai Matter of Law that he has to Plead,
and then he has always time allowed him to put it into Form ; And I could never
rhink there was any Reafon to be given for it, but becaufe the common Defences
of Fellons would be little Shifts and Arts, which would deftroy proceedings, and
make them tedious, and that would be an Encouragement to People to commit
Fellony ; andbcfide there is a Tuift which the Law repoles in the Court in Ca-
K 2 pital
t
pital Cafe, to eafc« care that thefe Men fhould not fuBer aptti any little Trick-
in Law ; hut if you come b;low Treafon and Fellony, the I aw' purs no fuch
hardrtiip upon the Dctondant, nor repofcs (uch afpecial Troft in the Court : but a
man may plead any tiling he has to plead j And can any man pbad before he
fees what he is to plead to ? and (hall the Law allow him Council to prepare his
Pica, and not allow him time to conliilt with that Council about it? Thefe aic
things My Lord, that truly, to me feems unreafbnable : But as to the Pra&ice
and eourft of the Court, I p--ay your I ordfhip to give Order, thac the Prece-
dents may be (earchcd, that you nuy know what the ancient tYadtice was.
Mr. Patch. Whether you will grant an Imparlance now or no, yet I hope
however, you will think fit to give My Lords the Bilhops rime to plead.
Lord Chief Juftice. Eiut Mr. Ftttch, we have had a Certificate from Sir Snttul
Aftrj, which truly weighs a great deal with me, he tells you the Pra&ice has
been fo ever fmce he came here, and that A&-. Wxerboaje told him, that it
had been (ball his time, which isfixty years.
Mr. Poilixftn.. My Lord, there are Perlons here that will upon their Oaths de-
clare, That Mr. Waterhoufc has often told them t lie Pradice was othervvife; even
in his time, and afterwards a long time before this new way of Proceeding came
in.
Mr. Inct. My Lord, if I might have liberty to (peak, I can fay Mr. Wxcrboife
has told me.
Lord Chief Jttftict. Pray be quiet Mr. Ince.
Mr. Jnftice Ailjbone. But pray Mr. Pollixfen give me leave to mind you, bow
the Evidence (lands againtt you, theObjedions are, that this has been a Pradice
but for twelve years laft pall ; if that be true, I think it goes a great way, for
the pradice of twelve years is Prelident enough, Prima Facie, that (iich is the
pradice, For how (hall wo come to the knowledge of the practice, but from our
Officer Sir Samuel A fry, who has been here. Examined? and he tells you, that
upon his coming into the Office, when it could not be fo doubtful as now (it
(eems) it K, he took Inftrudionsfrom Mr. Waterboufe ; I allow you 'tis but his Cer-
tificate, but that mutt go a great way with the Court. t j
Sir Ro. Sattner. Such a pradice as this has been always Very rare in Informa-
tions for Misdemeanours ; and they bring you nothing of any Prcfident older
then Sir Samuel Ajtrfs time.
Mr. Fmch. Pray My Lord, give me leave to vary the Queftion, I do not now
make it a Queftion, whether your Lordfhips fhould grant My Lords the Biftops
an Imparlarice, but whether you would think fit to look into the Courfe of the
Court before that time, that Sir Samuel Affiry (peaks of, and take time to confi-
der, and fcarch into Presidents.
Mr. J. AUybone. Do you Mr. Finch give us any one Reafon or Prefident, that
may make us doubt, whether this be the Courfe of the Court or no? And you
could not but be aware of this before, and therefore (hould have come prepared
to make out your Objedion.
Mr. Finch. Mr. Pollixfen and the reft of the Pradicers in My Lord Haiti's time
will tell you, that the Courfe was orherwife in his time ; Sir Samad Aftrj indeed
tells you, it has been fo fince his time ; but this was one of the Points (it (eems)
that he was ignorant of, which made him inquire of Mr. fPaterboufe, fb doubt-
ful was this Pradice.
Sir Sttmud Aftry. I Was an Attender upon this Court before I came into this
Office, but it was in another place on the other fide of the Court ; and therefore
was not concerned fo much to know what was the Courfe on this fide, till I
came into this Office.
Mr. Sol, Gen. Thefe Gentlemen differ among themfdves , one would have an
Imparlance, the other only time to plead , I believe truly they cannot tell well
what they would have , I pray the Rules of the Court may be kept ta
Sir Sam. Ajtrj. Here are two Clerks that fit by me , that have been a long
time in the Office, Mr. tittrcoitrt my Secondary , and the Clerk of the Rutes ;
I pray they may be asked their knowledge of this matter.
Mr.SoH. Gen. Certainty thefe Gentlemen think they have a Priviledge above
all other people, that they muft not be fubjcd to the fame Rules , as others are,
we on our parts have taken all the Methods that we could to make this matter
ma-
[37]
manifeft , and what is it that thefe Gentlemen now propofe ? They pray you
to take time to confider } but have they tiled the right means of creating a
jeaioufie or luipicion in the Court, that the Courfe is otherwife, they can give
no inftance of it , and all they fay is, 'tis a Negative , that this is not the
Courfe of the Court, but the Imparlance that they beg is in the Affirmative,
fiirely that they can rind proof of, if it be fb: As for my Lord Hollfs Cafe,
that is with us, and not againft usj let Mr. Pottixfm fhew that ever any one
of the Men that were brought into Court in Cuftody either had time to Plead,
or an Imparlance.
L. C. y. Sir Samuel Aftry fays he has given you his Opinion, and here are
two other Clerks of the Office that he refers himfelf to , are you willing that
they fhould be asked ?
Mr. Ser. F 'ember -ton. Yes my Lord, with all our hearts.
L. C. J. Mr. Hwtourt, How long have you been a Clerk in the Crown"
Office?
Mr. H.ircoan. About feventeen or eighteen years my Lord.
L. C. J. How long have you known the practice of the Court in this mat-
ter, and what is it ?
Mr. Harcaurt. I cannot charge my felf fo with Particulars from the time of
my coming into the Office, but for thefe ten or twelve years part (I remember)
it has been as the King's Council prefled, and as Sir Samuel Aftry has declared:
L. C. J. What fay you j*^. Silly ard, How long have you known the Crown-
Office?
Mr. Silly aril. I have been a Clerk here about thirty years.
L. C. J. Well, and how has the pra&ice been all your time ?
Mr. Sdlja.nl. I have not lac here as Clerk of the Rules but a little while,
but fince I have Jar here, I have always obferved it to be the Practice, thac
one that comes jn Cuttody fhould Plead immediately, it was a thing hereto-
fore that did not Ib often happen, as it hath done here of late, therefore I can-
not fo well (peak to it; but it hath 'fallen out frequently within fbme years laft
pair, and that had,i been the conftant Courfe.
Sir Samuel ^/-^rWhen you firft came to be Attorney General, Sir Robert
Sawyer, I am lure it wasfb.
Mr. Att. Gen. Pray let me ask you Mr. Sillyard, , you fay, you have known
the Office thirty years, When you firft came to the Office, were Informati-
tions as frequent as they are now, and have been of late ?
Mr. Sol. Gen. It was fb in the Cafe of Mr.Htunpden, when you were Attorney
General Sir Robert Sawyer, he was forced to Plead immediately to an Indict-
ment, for a Crime that perhaps you will (>y was near upon Treafbn.
Sir Rab. Sawyer. Yes truly, it wanted but one Witnefs, that was all.
Mr. Sol. Gen. But yet the:Irjdi&ment was only for a Misdemeanour, and
there we ftruglcd and debated (He Matter, but were forced to give it over,
becaufe the courfe of the Court was againft us, fb it has been by the unque-
itionable TefHmony of Sir Samuel Aftn for thefe twelve years laft paft, and
in thofe twelve years we have had many changes, perhaps there may have been
twelve Chief Jultices, and they have all affirmed it, and if I then make it
out, that in all thefe Judges times that are within our Remembrance it has
gone thus, then there are enough of Precedents in the Matter.
Sir Rob. Sawyer. But my Lord, I defire to know, whether that were the
Ancient Courfe Mr. Sollicifor ?
Mr. Sol. Gen. They that make the Objedion ought to prove it ; but I will
name Sir Robert Sawyer another Cafe, and that is the Cafe of Sir Samuel Bar-
nardijlon, which was the Cafe of a Libel too, he was forced to plead immedi-
ately, and it coft him 10000 /. Fine.
L. C. J. Well, Gentlemen, have you done on either fide ?
Mr. S. Pemkrton. If your Lordfhip will pleafe to give us time till to morrow
Morning, we will come hirher hy Rule of Court, and bring you fbme Certi-
ficates and Affidavirs, or ellc fbnic Precedents that we hope will fatisfie your
LordJhipin this M.mc>\
L. C. J. No Brother, we cannot do that, the Queftion is what the Courfe
Of the Court is, we bave had an Account of that from Sir Samuel AJfry, for
L fwehre
f'3«]
twelve years of his own Knowledge, and f.om Mr. Itfatcrboufe by him for fixry
; kit for Air. W.ittrhjule they except agiinfi him, and lay lu was a p^r-
jonth.ic was always lazy .mddid noclb well undorfhind his bufine!?, and n^v i>
fi]per;iniv.i.ited, tli.it is laid, but is but gratis dictum, pirhapsit may be lo, per-
haps not; and they li.ivc offered to Examine Mr. Ince about fbme Opinion that
he has tud from this Mr. lVaterhoii!» ; it may be he may have asked him lome
QiiclHon that may lead to it, ami ho may have given fome flight Anlwcr, but
'.ere are thefetwo perlbns Mr. H:ircvnrt, and Mr. Sillyara, and the one ha*
a. Clerk thefe fix teen or Lvaitccn years, and the other has known the
u thirty years; though there were not heretofore (b many Informations
of this Nature and kind as now of late, but flill they (ay, that a perfon that
comes in upon a Commitment, or a Recognizance, lhall ncvjr have any Inv
.
Mr. Sal. Gen. Can they give any one Infhncc that has any the Icafr fhad-
clow to the contrary •
Mr. PoUixfen. My Lord, if we had time, we hope we Ihould be «->ble to ia-
fcsfie you in this Matter.
Mr. Sol. Gen. You have had ti;ne enough to p:op.inj your (elves for this
QuefHon, if you had thought you could do any good in ir.
/-. C. J. Would the Courfe of the Court be otherwile to Morrow then it
•is to Day, we have taken all the Care we can to be latisiicd in this Macter,
and we will take care that the Lords the BiHiops ihalt have all Juftice done
them, nay, they fhall have all the Favour by my content that can be Ihevvn
them, without doing wrong to my Matter the King, but truly 1 cannot depart
from the Coudeof the Court in this Matter, if the King's Council prefc it.
Mr. Att. Gen. My Lord, we mult pray your Judgment in it, and your Di-
rection, that they may plead. *
L. C. J. Truly I think they muft Plead to the Information.
Mr. An. Gen. Sir Samuel dftrj, pray ask My Lords whether they be Guilty,
or Not Guilty.
Then bis Grace the Lord Arcbbifoop of Canterbury flood up, and
offered a Paper to the Court.
Arcbbifh.ofGant. My Lord, I tender here a ihort Plea, ( a very fliort one, )
on behalf of my felf and my Brethren the other Defendants ; and I humbly
'defire the Court will admit of this Plea.
L. C. J. If it pleafe your Grace, it fhould have been in Parchment.
Mr. Sol. Gen. What is that my Lord offers to the Court ?
L. C. J. We will fee what it is presently, Mr. Sotticttor.
Bifli. of Peter. I pray My Lord, that the Plea may be Read.
M. Set. Gen. But not received.
Mr. Att. Gen. No, we defire to know what it is firft ?
Sir Rob. Sawyer. Mr. Attorney ; if they will Plead, the Court fure is obliged t»
receive it.
L. C. J. If it is a Plea your Grace will ftand by it ?
L. Arcbbifi. of Cant. We will all ftand by it, my Lord, it is fubfcribed by
our Council, and we pray it may be admitted by the Court.
Mr. S. Pemk I hope the Court will not deny to receive a fpecial Plea, if we
ofier one.
L. C. J. Brother, Ictus hear what it is?
Mr. Sol. Gen. Read it if you pleafe, but not receive it.
Clerk Reads the Plea j which in Engltfli u tbvs :
The BISHOPS PLEA.
AND the aforefaid William Arcbbifhop of Canterbury, William Bijhap of
St. Afaph, Francis Bifiop ef Ely, John Btfliop of Chicefter, Thomas Bi-
foop 0/Bath tmd Wells, Thomas Bijhop o/Peterburgh, and Jonathan Bijhop of Bri-
ftol, being prefent here in Court in their own Perfons, pray Ojtr of the Information
aforefatdy and it ti Read to them, which being Read and beard by them the /aid
and Iliflnps : TbefaidArchbifljopandBt^ofsfay, that they are Peers of
tha
t'au Kingdom of England, and Lor.h ef Parliament, and each of than a on* if ;ic
Peers of this Kingdom of England, and a Lord of the Parliament, and that tity bttng
(as before ;s manifest) Peer soft bis Kingdom of England, and Lords of Parliament,
ought not to be compelled to anjwer inftantly for the Mif demeanour aforejaid, mentioned
in the jiii'l Information exb&ited here against them in this Court ; but they ought to be
required to appear by due Prccefi in Law ijjuing out of this Court hereupon the Informa-
tion aforej.ud, and tipcn their Appearance to have a Copy of the fai/l Information exhi-
bited against them> and reasonable time to impart thereupon, and to advtje with Council
Learned in the Law, concerning their Defence in that behalf, before they be compelled to
anfwer the jiid Informal icn ; Whereupon, for that the /aia1 Archbifocp, and Bifliopt
were Imprtfomd, and by Writ of our Lord the King, of Habeas Corpus, directed to
the Lieutenant ef the Tower of London, are now brought htre m Cuftody, without any
ProceS upon the Inform at ion aforesaid ifjued against them^ and -without having any Co-
py oft'fifaid Information, or any time given thtm to imparl, or be adv^ed ; They pi ay
Judgment, and the Pnviledge of Peers of this Kingdom, in this Cafe to be allowed
them ; and that They the faid Archbijliop, and Bi^Dps, may not be compelled inflantly to
anfircr the Information aforejaid, Sec.
Rob. Sawyer.
Hen. Finch.
Hen. Pollixfen.
Mr. Att. Gen. My Lord, with your Lordlhip's favour, this in an ordinary
Perlbn's Gale, would perhaps be thought not fair dealing, or that which (it
being in tha Cafe of thefe Reverend Prelates) I (hall not now name ; to make
all this Debate and Stir in a Point of this nature, to take the Judgment of
the Court after three or four hours arguing, and when the Opinion of tha
Court has been delivered, then to put in a Plea to the Jurifdi&ion of the
Court,
Sir Rob. Sawyer, It is no fuch Pica.
Mr. Att. Gen. It is fb in efled, but certainly it is fiich an Irregularity, and
fuch an unfair way of Proceeding, as would not be endured in -an ordinary
Cafe, and I hope you will give To little countenance to it, as to rejeft it, and
make them Plead according to the ufual courfe and way of proceedings ; cer-
tainly a Plea of this nature, after fo long an Argument, would be reckoned
nothing but a trick.
Mr. Scrj. Pcmb. We hope the Court and you are not of one mind Mr. At-
torney in this matter, we defire the Court to receive the Plea.
Mr. Att. Gen. With fubmiflion, the Court is not bound 'to receive Picas, that
are put in purely for delay, as this is ; for the Judgment of the Court has
been already given in the very matter of this Plea ; and for reje&ing a Plea,
it is done every day, if a Man puts in a mere trifling dilatory Plea, the Court
may rejed it ; Does this Plea contain any thing in it, but what has been ar-
gued and debated pro & con, and fctled by the Court already ? If they will
put in any Plea in chief they may, but fiich a Plea as this, I hope Jhall not
have fb much countenance, as to be received by the Court.
Mr. Pollixfen. Do you Demur to it, if you pleafe Mr. Attorney, we will joyn
in Demurrer with you.
Mr. Att. Ge». No, there will be no need of that.
Mr. Sol. Gen. Surely the Court will never give fo much Countenance to it,
as to receive it.
Mr. Finch. If you will pleafe either to Reply or Demur Mr. Solicitor, we nre
here to maintain the Plea.
Mr. Soil. Gen. If you were here you would fay the fame thing that we do ;
My Lord, this Plea is, That my Lord the Bifhops are not bound to Ple-.d in-
ftantly ; (b that 'tis not a Quertion, Whether they ought to Anfwer, or not
to Anfwer, but whether they ought to Anfwer immediately, and what do they
fay more? They would have an Imparlance, and time to confult with their
Councel what they ftall Plead, which is all but one and the fame thing ; and
what is the reafbn they give for this ? They induce it thus, Thefe Noble Perfbns
are Peers of the Realm, and fb ought not to be compelled to Plead immedi-
ately j this, if I miilake not, is the (iim of their Pica. Now pray my Lord,
what
[4° J
what fort < { Plea is this ? It is not a Pica ro die Jurifdiaion of the Court, th
do in .1 for; decline the Juftice of the Court i Is it a Plea in Abatement ? No, ft
is not, tor it i* only to gain time, and do they now offer any thing more lor
themlelvcs, than what was ftid by their Council before ? Only, That we are
Peers of the Realm , and that fiich is the Priviledge of Peers, that they ought
to have an fmparlance, and time to Plead, and that they ought not to anfwer
presently : My Lord, this Matter hath been long agitated in the Court alrea-
dy, your Lordfhip, and the Court have given your Judgments, and we know
your Lord (hip, and the Court will not admit of Tricks to delay the Kings
Caufes, we all know the Term is a fhortTerm, and what Maid in the begin-
ning upon this matter, 1 fay again, it is the Intereft, and for the Honour of
my Lords the Bifhops (if they underftand their own Interelr, and value their
Honour) to have this Caufe tryed as foon as may be ; but this trifling and
tricking is only for delay ; For what ifliie can be taken upon this Plea ? Cer-
tainly none ; And if we /hould Demurr, what will be the end of that ? But
only to get time to flip over the Term. If there were any thing worth the
confidering in this Plea, and that had noc been already debated and fetled,
then it might concern us to give fbme Anfwer to it ; but we have (pent three
hours (by my Watch) in the Difpute, and the Matter having been over-ruled
already, it is rime to have an end of it ; lure the Court will never be fb treat-
ed by thefe Pcrfbns, that are of Councel for my Lords the BiJhops, for it can-
not be thought that my Lords the Bifhops do it of themfelves ; and whether
the Court will be fb ferved, we fiibmit to your Lordfliip. Certainly you will
not receive liich a Plea as this, efpecially it being in Paper, you will never coun-
tenance fiich a Practice, fb far as to give thefe Lords time to triile with the
Court ; if any fiich thing as a Plea be tender'd to the Court, it ought to be in
Parchment, and if they would have an Imparlance, there ought to have been
an entry of a Petit Licentiam inter Ic^uendi upon the Roll, but not fuch a Plea as
this, for this in effect is no more then defiring an Imparlance, which if it be
granted of Gqurfe,upon fiich a Prayer entred upon the Roll,you take it of courfe ;
but if it be not of courfe, you cannot come in by way of Plea, it muft be by
fuggeflion qpon the Roll, and a Concedttiir entred, if this be admitted as a Pre-
cedent, every Man hereafter that comes in upon an Information, will take
advantage of it, and plead fuch a Plea as this, and if you grant an Imparlance
in this Cafe upon this Plea, you mutt grant an Imparlance in every Cale ; cer-
tainly the Law is not to be altered, the Methods of Proceedings ought to be the
fame in every Cafe : And I hope you will not make a particular Rule in the
Cafe of my Lords the Bilhops, without a fpecial Reafbn for it.
Mr. Serj. Pemt. We put in this Plea, my Lord, and are ready to abide by it,
and we fay, that according to the courfe of the Court, it ought to be re-
ceived.
Mr. Att. Gen. No, but good Mr. Serjeant, 'tis in the difcretion of the Court,
whether they will receive it or not, for the matter has been in debate already,
and has receiv'd a determination, the Court has over-ruled them in this very
Point already, and there is no more in this Plea, than was in the Argument
before, and therefore it ought to be reje&ed as a frivolous Plea.
Mr. Sott. Gen. Here is a Plea offered in Writing, and in Paper, the Court fees
what it is, and I hope you will give no countenance to it.
Mr. Polltxfen, 1 do hope my Lord, you will not judge this as a frivolous Plea, I
think our Cafe is fuch, that you will not do that, if you think fit you may o-
ver-rule it, but I hope you will not refute if.
Mr. Soil. Gen. The Court will certainly rcjed a frivolous Pka, and they may
doit.
Mr.Pollixfen, But Mr. Solliciter, I hope theCourt will confider of it, whether it
be a frivolous Plea or not, it is true, there has been a Debate about the courfe
of the Court, and there has been «n Examination of the Clerk of the Office, and
the Court has gone upon his Certificate, but yet (till perhaps it may remain in
doubt, and it being a Queftion of fuch a confequence as this, it may very well
deferve the Court's Confederation ; there never was a Judicial Settlement of it
( that I know of yet ) nor do I know any way of having it fatisfa&orily fetled,
but by thejudgment of the Court entred upon Record • here we offer a Plea
1 that
OJ
that contains the matter in debate, and this Plea will appear upon Record, and
if upon confideration of the Plea your Lordlhip /hall think fit to over-rule it,
and be of Opinion againft the Plea., then will you by your Resolution in 3
Judicial way, lettle the Queftion that has hitherto been in Controverfy.
£. C. J. Mr. Pollixfen, I would ask you whether the Council have dealt in-
geniotifly with the Court or no in this matter ; after four hours debate, and
the Opinion of the Court delivered, to come and (urn up all the Arguments
in fuch a Plea as this, and fo put us upon debating it over again.
Mr. Pollixfm. My Lord, certainly this has been done before, without Of-
fence, after we had moved for a thing which was denied upon Motion, it is
no fuch great difrefped to the Court ( with fiibmiffion) to put the fame' Mat-
ter into a Plea, for the Judicial Opinion of the Court.
Sir Ro. Sawyer. That without all Queftion has been done a great many times.
Mr. Sol. Gen. How many times have you been accufed of playing Tricks
Sir Rtbert Sawyer.
Sir Rob. Sawyer. Not fb many as you, Mr. Sollicltor.
Mr. Sol. Gen. I don't ask it as if 1 queftioried it, for I allure you I don't
doubt it of your part at all.
L. C. J. Pray Gentlemen don't fall out with one another at the Bar, wa
have had time enough (pent already.
Mr, Pollixfen. Truly, My Lord, I would not trick with the Court in any
Cafe, nor on the other fide would I be wanting to Advife and do for my
Client, what I am able and lawfully may j we have laboured all we could to
get time for my Lords the Bilhops to Imparle to this Information, and we have
been the more earneft in it, becaufe it concerns us, who attends this Bar, to
take what Gare we can, that the Courfe of the Court may be obferved ; but
as for this Matter, we fiipppfe this Practice of the Court is not in Law a good
Pradice ; Now what way in the World has any man to bring this fo in que-
ftion, as to have a Judicial Refblution of the Court about it, but by fuch a
Plea ? We take it, that it is ufual and legal for us to have an Imparlance, and
a man would Imparle, but the Court upon Motion refilled to give him an
Imparlance ; Is it not (think you) very jit for the party to have this Judici-
ally entered upon Record ? where all this Matter will appear, and the party
may be relieved by writ of Error, if the Judgment of the Court fhould ba
wrong ; but truly I cannot fee how the Court can refufe the Plea, for if fo be
a Plea be pleaded, they have their liberty to Anfwer it on the other fide by a
Replication, or elfe to Demur, and the Judgment of the Court may be had
upon it one way or other, but the Court will never go about to hinder any
man from pleading where he may plead by Law ; here is a Plea put in, and
the Court fure will take no notice what is the Matter of the Plea, till the o-
ther party have either replied or demurred ; the fame thing may happen in any
other Plea that is pleaded, and the party will be without Remedy upon a writ
of Error, becaufe the Plea being Reje<fted, there does nothing appear upon
Record ; truly for the Court to rejeft and refufe this Plea, would be as hard as
the refufing of the Imparlance, and we know no way we have to help our
felvcs.
Mr. Sol. Gen. You might have entered your Suggeftion for an Imparlance
upon the Roll, and then it would have appeared upon Record, and if the
Court had unjuftly denied it you, you would have had the benefit of that
Suggeftion eUewhere : Truly, My Lord, I think if any thing be tricking,
this is, for it is plainly ill pleading.
Mr. Finch. Then pray demur to it.
Mr. Sol. Gen. No Sir, 'tis Fencing with the Court, and that the Court won't
fuffer, it is only to delay, and if we fhould demur, then there muft be time
for Arguing; and what is the Queftion after all, but whether you would bz
of the fame Opinion to Morrow, that you are to Day.
Sir Rob. Sawyir. I would put Mr. Sollicitor in mind of Fttz. Harris's Cafe,
which he knows very -well, he put it in a Plea, and we for the King defired
it might not be received, but the Court gave him time to put ic into Form,
and I was fain to joyn in Demurrer prefently, and fb may thefe Gentlemen
do if they pleafc.
M Mr. Sol.
Mf. Stll. Gen. Yes Sir Robert Sawyer, I do know the Cafe of Fttx, Hams
very well, I was afligned of Councel by the Court for him, we were four of
us, and there was a Plea put in, but no fuch Plea as this, there was an In-
di&mem of High Treatbn againft him, in which Cafe it is agreed on all hands,
that the party muft anfwer prefently, but becaufe he fiiggefted here at the
Bar, ( fays he ) I have Matter to plead to the Jurifdi&ion of the Court, and
{hewed what it was, I was Impeached before the Lords in Parliament for
Treafbn, for the fame Matter of which I am here Accufed : The Court did
give him time to put this into Form, and we were affigncd his Council to draw
it up for him, and accordingly we did put that Matter into a Plea, that we
were here Indicted for one and the fame Treafon, for which we were Im-
peached in Parliament, and that that Impeachment was ftill depending, and
lo we refted in the Judgment of the Court, whether we fhould be put to An-
fwer it here j this was a Plea that carried fomething of weight in it, and not
fuch a trifling one as this. It is true, Sir Robert Sawyer who was then Attorney
General did prefs the Court to over-rule it immediately, but it being a matter
of fome Importance, the Court would not do that, but had it argued folemnly
by Council on both fides, and at laft there was the Opinion of three Judges a-
gainft one that the Plea was no good Plea, But what is that to fuch a trifling
Plea as this?
Mr. Ait. Gen. Pray my Lord favour me a few words about that Cafe of
Mr. Fitz, Harm, it is true, there was a Plea put In, and it is true alfb, that that
which brought that Plea to be argned, was the Demurrer that was put in by
Sir Robert Sawyer, who was fb zealous and hafty in the matter, <liat becaufe
the Court did not pfefauly over-rule the Plea, as ha dcfired, he immediately
Demurred, before the reft of the King's Council could offer at any thing a-
bout it ; and thereupon it was put to the Judgment of the Court, and no doubt
muft be argued, and fpoke to on both fides; but where Pleas are really ina-
bufe of the Court, the Court never gives any Countenance to them : Nay,
truly I have known another Courfe taken, I am unwilling to mention a Cafe
that hapned much about that time too in this Court, becaufe of that regard I
have to my Lords the Biftiops, but Sir Robert Sawyer remembers it very well,
I am fiire j it was the Cafe of one Whitakir, who for a tiling like this putting
Jn a trifling Plea, not only had his Plea rejected, but fbmething elfe was or-
dered, I could fhew the Precedent, but that I am more tender than to prefs it
in this Cafe,becaufe there the Court ordered an Attachment to gtf againft him,
but I will put thefe Gentlemen in mind of another Cafe, and that is the Cafe
of a Peer too, it is the Cafe of my Lord Delamewe, which they cannot but remem-
ber, it being in the higheft Cafe, a Cafe of Treafon, when my Lord Delameere
was Arraigned and to be Tryed for High Treafon, he put in a Plea before my
Lord Chancellor, who was then High Steward, and Sir Robert Sawyer who was
then Attorney General, prayed the Lord Steward, and the Peers to reje& it,
and the Court did rejeA it, ( as we hope the Court will do this ) and would
nex'er fb far delay Juftice as to admit of a Plea that carried no Colour in it,
and there was no Demurrer put into the Plea, but it was abfolutely refused :
My Lord, in this Cafe we have had the Judgment of the Court already, and
therefore we muft now defire that this Plea may be rejected.
Mr. Soil. Gen. My Lord, we have now gone out of the way far enough al-
ready ; it is time for us to return, and bring the Cafe into its due methods.
We pray your Lordfhip to rejecl: this Plea.
Sir Rob. Sawyer. My Lord, we are in your Judgment, whether you will re-
ceive this Plea or not.
L.C.J. You fhall have my Judgment prefently ; but my Brothers are to
fpe.nk firfr.
Mr.J.Mybone. Mr. ToUixfen makes it a Queftion, whether this Plea may
be reje&ed or not, or whether it ought to be received, and the Court give their
Judgment upon it.
Mr. Jujl. Powell. Truly I' do not know whether the Court can reject this, as
a frivolous Plea.
L. C. J. Surely we may and frequently do.
Mr. Alt. Gen. You do it every day^ it's a frequent Motion ; if a frivolous
Plea
[433
Plea be put in, before it be entred upon Record as a Plea, the Court may re-
fu(e it, if they fee caufe.
Mr. J. AUjbone. Truly if it may be, this appears to me a very frivolous Plea.'
Mr. Jujt. Powell. I do not know how the Court can rejed any Plea that the
party will put in, if he will ftand by it, as they (ay they will here; and I can-
not think this a frivolous Plea, it concerning the priviledge of Peers, and Lords
of Parliament.
Mr.J. Attybone. Brother Powell, I would be as tender of the Priviledges of
Parliament, and (peak with as much refpeft of the Priviledges of the Peer-
age, as any body elfe ; but for the matter of the Plea, truly it appears to me,
that the Peers are named in it only for fafliion fafe, and it is frivolous.
Mr. Jufl. Powell. The matter of the Plea, except only their being (aid to be
Peers and Lordsof Parliament,was fpoke to before, but it was only obiter}at\d by
way of motion ; but now it may come before us for our Judicial Determination.
Mr- J- Allybone. Pray let the Plea be read again. (Which was done.)
Mr. Juft. Aliybcne. This Plea is no more but that which has been denied al-
ready upon fblemn debate, and if it be in the power of the Court to reject any
Pica, lurely we ought to rejed: this. Indeed I know not what power we have,
to rejeft a Plea; but if we have power, this ought to bereje&ed.
Mr. Juft. Powell. 1 declare my Opinion, I am for receiving the Plea, and
conlidering of it.
Mr. Ju(t. HoUoway. I think as this cafe is, this Plea ought not to be received,
but rejected, becauie ?tis no more than what has been denied already. I am
not afhamed to fay, That I fhould be very glad and ready to do all things that
are confiftent with my Duty, to /new refpe&s to my Lords the Bifliops, fbme
of whom ai e my particular Friends ; but I am upon my Oath, and muft go ac-
cording to the courfe of Law.
L. C. J. We have asked and informed our felves from the Bar, whether we
may or can rejeA a Plea, and truly what they have {aid, hath fatisfied me
that we may, if the Plea be frivolous j and this being a Plea that contains no
more than what has been over-ruled already, after hearing what could be faid
on both fides, I think the Court is not bound to receive the Plea, but may re-
ject it, and my Lords the Bifliops muft plead over.
Mr. Ait. Gen. We pray they may plead in chief.
Clerk. My Lord Archbifnopof Canterbury, is your Grace guilty of the matter
charged upon you in this Information, or not guilty ?
A. B. C. Not guilty.
Clerk. My Lord Bifhop of St. Afapb, is your Lord/hip guilty of the matter
charged upon you in this Information, or not guilty ?
Sift, of St. Afaph. Not guilty.
Cltrk. My Lord Bifliop of Ely, is your Lordfhip guilty of the matter charged
upon you in this Information, or not guilty ?
Btfh. of Ely. Not guilty.
Clerk. My Lord Bifliop of Cbkbejler, is your Lordfhip guilty of the matter
charged upon you in this Information, or not guilty ?
Biflt. of Cbicbeft. Not guilty.
Clerk. My Lord Bifliop of Bath and ffalls, is your Lordfliip guilty of the
matter charged upon you in this Information, or not guilty ?
Bifli.ofBath & Wetti. Not guilty.
Clerk. My Lord Bifliop of Peterborough, is yourLordlhip guilty of the matter
charged upon you in this Information, or not guilty?
Btfh.ef Peterborough. Not guilty.
Clerk. My Lord BifliOp of Bnflol, is your Lordfhip guilty of the matter
charged upon you in this Information, or not guilty ?
B^h. of Briftol. Not guilty.
Mr. Att. Gen. My Lord, I pray the Clerk may joyn Iflue on the behalf of
the King, that fb we may come to Tryal j and we would have thefe Gentle-
men take notice, that we intend to try this Caufe on this day fortnight, and
We pray liberty of the Court, that we may try it at Bar.
L. C. J. Are you not too hafty in that Motion, Mr. Attorney ?
Mr. Att. Gen. My Lord, we Ihould indeed make it the Motion of another
day;
\
[44]
day ; hut we do now t»ll them this exabundanti, becaufe my Lords the Bifhops
are now here, and will I fuppofe take notice that we do intend to move it a-
norhcr day.
Mr. Soil. Gen. We now give them notice, that we intend to move.
Sir Rc.b. Sawyer. For that you need not trouble your (elves; we are very de-
firous it fhould be tryed at Bar, and that as fbon as you pleafe.
Mr. Ait. Gen. Well then you take notice it will be tryed this day fortnight
L. C. J. Well, what ihall we do with my Lords the Bifhops ?
Mr. An. Gen. They are baylable, no queition of it, my Lord, if they pleafe.
L. C. J. Then, my Lords, we are ready to bail you, if you pleafe.
Sir Rob. Sawyer. We dcfire your Lordfhip would be pleafed to take their
own Recognizance.
L. C.J. What fay you, Mr. Attorney ? I think that may do well enough.
Mr. Att. Gen. My Lord, with all my heart, we will do it.
L. C. J. In what Penalty fhall we take it ?
Mr. Att. Gen. A 1000 /. I think my Lord his Grace^and foo /. apiece the reft.
Sir Rob. Sawyer. What necellity is there for fb much ?
Mr. Att. Gen. Look you, Sir Robert Sawyer, to fhew you that we do infift up-
on nothing that fhall look like hardfhip, what my Lords have been pleafed to
offer, concerning taking their own Recognizance, we agree to, and what fums
the Court pleafes.
Mr. Soil. Gen. It is all one to us, we leave it wholly to the Court.
Sir Rob. Sawyer. Only I have one thing more to beg of your Lordfhip on
the behalf of my Lords the Bifhops, that you will pleafe to order, that in the
Return of the Jury there may be forty eight returned:
Mr. Att. Gen. I tell you what we will do, Sir Samuel Aftry fliall have the
Freeholders Book, if you pleafe, and fhall return twenty four.
Sir Rob. Sawyer. Eight and forty has been always the courfe, when the Jury
is returned by Sir Samutl Ajtry.
Mr. Soil. Gen. My Lord, I pray the Officer may return the Jury, according
as is ufual in Cafes of this nature.
Mr. Att. Gen. You do admit of a Tryal at Bar, Gentlemen?
Sir Rob. Sawyer. Yes, and try it when you will.
L. C. J. They fay it iliall be this day fortnight, and let there be a Jury ac-
cording to the ufual courfe.
Sir Rob. Sawyer. We pray it may be in the prefence of the Attorneys or
Sollicitors on both fides.
L. C. J. What is the ufual courfe, Sir Samuel Ajtry ? Do you ufe to return
twenty four, or forty eight, and then ftrike out twelve a piece, which I perceive
they defire for the Defendants ?
Sir Sam. Aftry. My Lord, the courfe is both ways, and then it may be, as
your Lordfhip and the Court will pleafe to order it.
L. C. J. Then take forty eight, that is the faireft.
Mr. Att. Gen. We agree to it j we dcfire nothing but a fair Jury.
S*> Rob. Sawyer. Nor we neither, try it when you will.
L. C. J. Take a Recognizance of his Grace my Lord of Canterbury in zoo/,
and the reft of my Lords in 100 /. a piece.
Mr. Att. Gen. What your Lordfhip pleafes for that, we fubmit to it.
Clerk. My Lord of Canterbury, your Grace acknowledges to owe untoj^pr
Soveraign Lord the King, the fum of 200 £ upon condition that your Grace
fhall appear in this Court on this day fortnight, and fb from day to day, till
you fhall be difcharged by the Court, and not to depart without leave of the
Court. Is your Grace contented ?
A. B. C. I do acknowledge it.
Clerk. My Lord Bifhop of St. Afafb, you acknowledge to owe unto our So-
veraign Lord the King, the fum ot ioo/. upon condition that your Lordfhip
/hall appear in this Court on this day fortnight, and fb from day to day, until
you fhall bs difcharged by the Court, and not to depart without leave of the
Court. IsyourLordlhip contented ?
h. of St. Aftfb. I do acknowledge it.
The like Recognizances were taktn of all tbe reft of tie Bijkopi, ant then tbt
Court aroje. De
L45J
De Termino San ft a T^nnltatuy Anno Regni Jacobi SV-
cttndi Regis, Quarto ', In Banco Regis.
Die Veneris, vicepmo nono die Junii, 1688. in eo£ Term.
(Being the Feaft o( St. PETER and St. P A V £.)
Domintis Rex verfus Archiep. Cantuar. & al.
Sir Robert Wright Lord Chief Juftice^
Mr Juftice Holloway, I Tllfla_
Mr. Juftice Powell, , <JuaSes<
Mr. Juftice Ally bone.
i Ryer, make Proclamation thrice.
Cryer. O yes ! O yes ! O yes ! Our Sovereign Lord the King ftreight-
ly charges and commands every One to keep lilencea upon pain of
Imprifonment.
Cl. eft be Cr. Call the Defendents.
Cryer. WiUiam Lord Archbifliop of Canterbury.
Arcbbifr. Here.
Cryer. William Lord Bifhop of St. Afapl.
Bifi. St. Afaph. Here. (And fo the reft of the Bifiiops were called, and an-
fwered feverally.)
Clerk. Garaezvotret Challenges. — Swear Sir Roger Langley.
Cryer. Take the Book, Sir Roger. You (hall well and truly try this Mile between
eur Sovereign Lord the King, and William Lord Archbimop of Canterbury 3 and
others, according to your Evidence. So help you God.
The fame Oath was adminiftred to all the Jury, whofe Names follow, (viz,.)
Sir Roger Langley, Barr. "j r WiBiam Averj, Efqj
Sir William Hill, Knt. Thomas Attftin, Efq;
Roger Jennings, Efq; , Nicholas Grice, Efq;
Thomas Harriot, Efq; Michael Arnold, Elq;
Jeoffery Nightingale ,Efqj Thomas Done, Efq;
WdliAmWithers^^ J [ Richard Shoreditch,
Clerk. You Gentlemen 6f the Jury who are fworn, hearken to the Record j
Sir Thomas Powis, Knight, His Majefty's Attorney-General, has exhibited an In-
formation, which does fet forth as followeth :
ff.TLJtEmorana'utHj That Sir Thomas Towys, Knt. Attorney-General of pur Lord
ly J. the King, who for our faid Lord the King in this behalf profecutes, came
here in his own perfon into the Court of our faid Lord the King, before the King
himfelf at Weftminfter, on Friday next after the morrow of the Holj Trinity in this
Term •, and, on the behalf of our faid Lord the King,giveth the Court here to un-
derftand, and be informed, That our faid Lord the King, out of his fignal Cle-
mency, and gracious intention towards his Subjedts of his Kingdom of England^
by his Royal Prerogative^ on the fourth day of 4frilt in the third year of the
N Reign
Reign of our laid Lord the King, at Weftminjter in the County of Middlefe*, did
publilh Ill's Royal Declaration, cntitlllcd, Hu Majefty's Gractotu Declaration TO off
bu Loving Subjects for Liberty ef Conscience, bearing date the fame day and year, fcal-
cd with the Great Seal of England ; in which Declaration is contained, JAMES/?.
frout'm the fjrft Declaration before recited.
And i he laid Attorney-General of our faid Lord the King, on behalf of oilr
faid Lord xhe Kme;, further givctli the Court here to undcrfhmd and be informed,
That afterwards," to wit, on the twenty-feventh day of Jprit, , fn the fourth
year of tlie Reign of our faid Lord the King, at Wepminfter aforefaid, in the
County of AfiJJlefextfoitefaid, our laid Lord the King, out of his like Clemency,
and gracious intention towards his Subjects of his Kingdom of England, by his
Royal Prerogative, did publilh his other Royal Declaration, entituled, Hu Ma-
j eft fs Gracious Declaration, bearing date the fame day and year Lift mentioned, feal-
cd with liis Great Seal of England ^ in which Declaration is contained, JAMES/?.
Our Conduct has been fuck, &cc. prout in the fecond Declaration before recited.
Which faid Roval Declaration of our faid Lord the King lalt mentioncd^our fhid
Lord die King afurwards, to wit, on the thirtieth day of April, in the fourth
year of his Reign aforefaid, at Wtjtmimfisr aforefaid, in the County of Middlesex
aforefaid, d-'d caulb ro'b: : and publilhed throughout all England ; and for
the more folcknn Declaring, Notification, and Manifestation of his Royal Grace,
Favour, and Bounty towards all his Leige-pcoplc, fpecified in the Declaration
laft mentioned, afterwards, to wit, on the fourth day of May, in the fourth year
of his Reign, at Wiftminfter aforefaid. in the County of Middleftx afar ef aid /our
faid Lord the King in due manner did Order as folknveth :
At the Court at Whitehall the Fourth of A%, 1 6B8.
By the King's molt. Excellent Majefty_, and the Lords of His Majesty's moil Ho-
hourable Privy-Council.
IT is this day Ordered \>j HisMajefty in Counci^TbatHisMajtfties late GradomDeclaration
bearing date the Twenty Seventh of April /<?/, be read at the ufital time of Divine Ser-
vice upon the Twentieth and Twenty Seventh of this Month, in all Churches anil Chapels
ivtthin the Cities of London <J»«/Weftmi lifter, and Ten Miles thereabout: And upon 1 1. e
Third andTenth of June next in all other Churches and Cbappcls throughout this Kingdom.
Anditts hereby further Ordered, That the Right Reverend the Bifiops caufetke (aid De-
claration to be Jent and diftribitted throughout their feveral and refpecJive Diccejfes, to be
rtad accordingly,
Wm' Bridgeman.
And further, the faid Attorney-General of our faid Lord the King, on behalf
of our laid [Lord the King, givcth the Court here to underftand and be informed;
That after the making of the faid Order, to wit, on the eighteenth day of May,
in the fourth year of the Reign of our faid Lord the King, at Wtjlminjltr aforefaid,
in the County of A#<W/e/«c aforefaid, William Archbilhop of Canter bury, ofLandab
in the County of Surrey • William Bifhop of St. AJafb, ot St. dfapk in the County of
Flynt ; Francis Bifliop of JE//, of the Pariih of St. Andrew Holbcurn in the County of
Middleftx \ JcbnBittlopotChichefter, of Clichetter in the County of Stifle* ; Thomas
Bifhop of Bath- and Wclh, of the City of Wells in the County of Scmerfet ; Thomai
Bifiiop of Peter burgh f>f the Parifh o{ St.dndrew Holbourn in the County of Middltftx;
£!ld Jonathan Biiliop of Brijlolpf the City of ftriftol,did conj'ult and confpire among thetn-
fdveito Jhninifli the Regal Author ity& Royal Prerogative,Toii'er and Government of cur (aid
Lira1 the King in the premifcs, and to infringe and elude the faid Order; and in pro-
fecution and execution of the Can/piracy aforejaui, They the faid William Archbilhop <.t'
CKn:erbury, Militant Bifhopof St.^faph, /Y<J»a'/Bilhopof £//, John BifliOp of C/.J-
ehefter, Thsmaf Biihop of Rat h ZttdiWetts, Thomas Bifhop of Peterbnrgb, ana Jonathan
Bifliop of Bnjlot, on the laid eighteenth day of May, in the fourth year of th?
Reign of our faid Lord the Kingaforelaid, with Force and Arms, &c. at Ji'fjfr
aforefaid in the County of AlulJlcfex aforefaid, falfly, unlawfuttj, mahiwtfy,
oitfly, andfcandaloufly, did frame, compofe, and write, and caufed to be framed, cc
tnd written, a- certain falfi, ftt^ed, malicious, pernictcirs, and /edit iota Libel tn writing }
concerning our jaid Lord the fiing, ami hit Royal Declaration #n<l Order nfortfutd^ («»«£r
pretence
[47]
pretence of a Petition) and the fame falfc, feigned, malicious, pernicious, and fedi-
tious Libel, by them the aforcfaid William Archbifhop of Canterbury, William Bi-
ihop of St. Afapb) Francis Bifliop of E/y, John Bifhop of Cbicbefler^ Thomas Bifliop
of Bath and Wells, Thomas Bilhop of Peterburgb, and Jonathan Bifhop of Brifioly
with their own hands relpectively being fubfcribed, on the day and year and in the
place laft mentioned, in the Defence of our {aid Lord the Kmg^ with Force and Arms^
&cc. did publish, and caufe to be piMpiea1 •, in which faid falfe, feigned, malicious,
pernicious and (editions Libel is contained, The humble Petition, Sec. prout before in the
Petition, to thefe words \jeajonable conftruttion^ in manifeft contempt of our faid
Lord the King, and of the Laws of this Kingdom, to the evil example of all others
in the like cafe offending, and againft the Peace of our faid Lord the King, his
Crown &c Dignity, &c. vV hereupon the faid Attorney-General of our faid Lord the
King, on behalf of our laid Lord the King, prays the Adyiceof the Court here in
thepremifes, and due Procds of Law to be made out againft the aforefaid William
Archbifhop of Canterbury^ William^OffQ of St. Afapb, Francis Bifliop of E/y, John
Bilhop oiCbicb'efter ^Thomas Bifliop of Bath and WellsThomas Bifliop of Peterburgb^nd
Jonathan Biihop of Bri/tol, in this behalf, toanfwerour faid Lord the King in and
concerning the premiics, &c.
T. Powys.
W. Williams.
To this Information the Defendents have pleaded Not Guilty, and for their
Trial have put themfelves upon their Country, and his Majefty's Attorney-Gene-
ral likewife, which Country you are : Your Charge is to enquire whether the
Defendents, or any of them, are guilty of the matter contained in this Information
that hath been read unto you, or Not Guilty : If you find them, or any of them,
Guilty , you are to lay fo ; and if you find them, or any of them , Not
Guilty, you are to fay fo -, and hear your Evidence. Cryer, make Proclama-
tion.
Cryer. O yes ! If any one will give Evidence on behalf of our Sovereign Lord
the. King againft the Defendents of the matters whereof they arc; impeached, let
them come forth, and they /hall be heard.
Mr. Wright. May it plcafc your Lordftu'p, and you Gentlemen of the Jury,
this is an Information exhibited by his Majefty's Attorney-General againft the
moft Reverend my Lord Archbifhop of Canterbury, and Six other Honourable and
Noble Biihops in the Information mentioned. . And the Information fets forth,
That the King, out of his Clemency and benign intention towards his Subjects
of this Kingdom, did put forth his Royal Declaration, bearing date the fourth day
of April in "the third year of his Reign, entituled, His Majejly^i Gracious Declaration
to aU hts Loving Subjefl s for Liberty of Conscience ; and that afterwards, the twenty -
feventh of April, in the fourth year of his Reign, he publifhed another Decla-
ration, both which have been read to you-, and for the further Manifeftatioa
and Notification of his Grace in the faid Declaration bearing date the twenty-
fevcnth of Aptl laft, his Majcfty did order. That the faid Declaration fhould be
read on the twentieth and twenty-feventh of the fame month in the Cities of Lon-
don and Weflminjltr and ten miles about, and on the third and tenth of June
throughout the whole Kingdom; and that the Right Reverend the Bilhops (hould
fend the faid Declaration 'to be diftributcd throughout their rcfpeih've Diocefles,
to be read accordingly. But that the laid Archbifhop and Biihops the eighteenth
of May , in the faid fourth year of his faid Majefty's Reign, having confpired and
confulted among themfelves to diminifli the King's Power and Prerogative, did
falllv, unlawfully, malicioully, and fcandaloully, make, compofc, and writej
a falfc, fcandalous, malicious, and fcditious Libel, under pretence of a Petition -,
which Libel they did publilh in the prcfencc of the faid King 5 the Contents
of which Libel you have likewife heard read. To this they have pleaded Not
Guilty: You, Gentlemen j are Judges of the Fad-, if we prove this raft, you are
to find them Guilty.
Mr. Att,
U8]
Mr. At. Gm. May it plc.ifc your Lonlflu'p, and you Gentlemen of the Jury,
•our have heard this Information read by the Clerk, and it has been iikcwitb o-
jicndd'ro you at die RUT, Ixu before we go to our Evidence, perhaps it may not
ncamifs for us, that are of Council for the King, now in the beginning of this
(fakifc, tolcttlethcQwlHoii right before you, as well to tell you wnac my Lords
the Bilhopsare not profecutcd tor, as what they arc ; Firft. 1 am to tell you, and-
I believe you cannot your (elves but oblcrvc, that my Lords are not proiecttted as
I^iChops nor much Ids arc they Prosecuted for any point or matter of Religion.
but they are Prolccutcd a; Subiixts of this Kingdom, and only- for a temporal
Crime," ax thofc that have injured and affronted the Kinc to his very Face -, for it is
laid to be done in his own Prcicncc : In the next place, tliey are not Prolccuted for
any Nonfealance, or not doing or omitting to do any thing, but as they arc Aftors,
tor ccnfuringof his Majcfty and his Government, and for giving their Opinion in
Matters wholly relating to Law and Government ; and I cannot omit here to take
notice, that there is not any one thing, which the Law is more jealous of, or does
morccaremlly provide for the prevention and punifhment of, than all aceufations
and arraigmncnts of the Government ; no- Man is Allowed to accufe even the rnoft
inferior Magiftate of any misbehaviour in his Oflke,unlels it be in a legal Courfe,
though the raft is true •, no Man may fay of a Juttice of Peace to his Face, that he
is unjuft in his Office •, no Man may come to a Judge, cither by Word or Petition,
You have given an unjuft, or an ill Judgment, and I will not obey it, it is againfc
the Rules and Law of the Kingdom? or the like -, no Man may fay of the greac
Men of the Nation, much lefs ot the great Officers of the Kingdom, that they
do aft unrcafonably or unjuftly, or the like ; leaft of all mav anv Man fay any
fuch tiring of the King, for thefe matters tend to poflefs the People, that the Go-
vernment is ill adminiltred, and the Confcqucnce of that is, to fct them upon
defiring^a Reformation, and what that tends to. and will end in, we have all had
.1 (ad and too dear bought Experience ^ the laft Age will abundantly latisfie us^
whither fuch a thing does tend : Men are to take their proper remedies' for Redrels
of any Grievances they lye under, and the Law has provided luffieiently for that :
Thcfe things are fo very well known to all Men of the Law, and indeed to all the
People of England of any Understanding, that I need not, nor will not, ftand
any longer upon it, but come to the matter that is now before you Gentlemen,'
to 'be Tryed. The Faft that we have laid, we muft prove, rather to keep to the
formality of a Tryal. than to pretend to inform you, or tell you what you do
not know, it is all publickly notorious to the whole World -, but becaufe we muft
go on in the regular methods of Law, we fhall prove the Fafts in the order they
artf laid in the Information. Firft, We take notice, that His Majeftyj of his
great Clemency and Goodncfs to his People , and out of his delire that
all h is Subjects might live cafily under him (of which I think never Prince gave
greater or more plain Evidence of his Intentions that way) the fourth of Ayril^
1687. He did iffuc forth his Royal Declaration for Liberty of Confcience; this
matter, without all queftion, was welcome to all his People that flood in need of
it, and thofe that did not, could not but fay, the thing in the nature of it was very
Juft, and Gracious -, but prefcntly it muft be furmifcd, that the King was not in,
IL:rncft, and would ot, nor could not make good hisPromife; but to take away
all Surmifes, hisMajefty waspleafcd by his Declaration of the twenty feventfi
of itfrltlaRj not only to repeat his former Declaration, but likcwife to'rcnew His
former Prornifes to his People, and to affurc them that he ftill was, and yet is, of
the fame Opinion, that he had at firft declared himfelf to be of -, nay. we further
ftew you, that to the end that this thing might be known to all his People^
even to the mcaneft Men, who it may be were not willing or able to buy the
Declaration, and that the King himfelf might be under higher Obligations,
if it werepoffible, than his own Word, he wasdefirous it fhouldbe repeated in
the Churches, and read in that Sacred Place, that all his People might hear what
he had promifed, and given his own Sacred Word for :, ana he himfelf might be
under that Solemn Tyc and Obligation to keep his Word,byremembring that his
Pfomifcshad> by his own Command, been Publifhed in the time of Divine Ser-
vice, intheHoufcof God; and thereupon was the Order of Council made? that
has been likewife read to you, which does direft, that it fhould be read in all
the Churches and Chappels in the Kingdom -, and you have heard, and we fhall
prove, what a return His Majefty has had for this Grace and, Kindnefs of his j
jou'j
L49J
you'l find when we come to read that which they call a Petition, all their Thanks
his Majefty had for his Favour and Gopdnefs to his People, 'tis only haid Words,
and a heavy Accufation, fuch as a private Perfon would be little able to bear,
I will not aggravate the matter, but only fay thus much, that His Majefty, who
was always a Prince of as great Clemency as ever this Kingdom had , and .
who was reprefented for all that, as a Prince of the grcateft Cruelty before his ac-
ceffion to the Crown, by his Enemies, is now accufed by his Friends for this Effect
of his Mercy ^ My Lord, and Gentlemen of the Jury, His Majefty refentcd this ill
ufage fo far, that he has ordered and thought fit to have a publick Vindication of
his Honour in this matter, by this Tryal ^ and wcfhallgooh to our Proofs, and
we do not doubt but you will dp his Majefty (as you do all other Pcrfons) Right.
Mr. Sol. Gen. My Lord, we will go on to prove the Parts of this Information,
and we will proceed according to the Method which Mr. Attorney has opened,
and which is purfuant to the order of the Facts laid in the Information. Give us
the firft Declaration under the Great Seal, the Declaration of the 4th. of Ay i!3
1687.
The Declaration was delivered into the Court.
"
Mr. Sol. Gen. Read the Date of it firft.
Clerk Reads. Given at our Court at Whitehall, the tyb. day of April, 1687, an&
in the third Tear of our Rtig*.
Mr. Sol. Gen. Read the Title of it, Sir.
Clerk. It isEntituled, His Majefties Gracious Declaration to all hit
"Loving .Subjefts for Liberty of Confcience.
Sir Rob. Sawyer. Is it under Seal ? Is the Great Seal to it ?
Mr. Sol Gen. Give it down to Sir Robert Sawyer, that he may fee it, for I would
have every thing as clear as pofiiblc. Sir Robert Sawyer, will you have it
Read ?
.Sir Rob.Sawyer.NojVtc would fave as much of the time of the Court, as may be.
Mr. Sol. Gen. Then pray put in the Second Declaration of the z7th. of.Affil
laft.
Clerk Reads. Given at +ir Court at Whitehall, f&J IJth. etaj of April, l<588 in
the fourth Tear of our Reign, ana1 it is Ent it tiled, His Majefties Gracious Declara-
tion.
Sir Rob. Sawyer. Is that under the Great Seal too ?
Clerk. Yes it is
Mr. Sol. Gen. Deliver that down likewife, that they may fee it.
Sir Rob. Sawyer. We are fatisfied, you need not read it.
Mr. Sol. Gen. Then where is the Order of Council for the Reading, of it J
Mr. At. Gen. Swear Sir John Nicholas. f_ There he is. . ;
Sir John Nicholas Sworn.
Lord Ch.Ju/l. Cornc, Mr. Attorney, what do you ask Sir Join Nicholas*.
Mr. Sol. Gen. Hand the Order to Sir John Nicholas. Is that the Order of
Council, Sir John?
Sir ]ohn Nicbolat. The Book, Sir, is not in. my Cuftody there is the Regifter
that keeps it, he has it here tb produce.
Mr. Sol. Gen. Swear Mr. Gantlett.
Mr. Gantlett Sworn.
Mr. Sol. Gen. Is that the Council Book ?
Mr. Gantlett. Yes, this is the Council Book.
Mr. Sol. Gen. Then turn to the Order of the fourth of May> the King's Order
of Council, for the Reading the Declaration.
Mr. Gantlett. There it is, Sir.
The Book delivered into Court,
Mr. Sol. Gen. Read it I Pray.
Clerk Reads. At the Court at Whitehall, the fourth of May, 1 688. - — and fo
reads the Order of Council.
O Mr.
Mr. Sol. Gen. My Lord, we have one thing that is mentioned in the Infofmati-
<in, that this Declaration was Printed -, if that be denied, we will call HtnryHtUt,
his Mak-ftics Printer, bccauic we would Prove all our Information as i; is laid.
Lor deb. ?«/. You mud do fo, Mr. Sollicitor you mult prove the whole Decla-
ration.
Mr. Sol. Gen. Cryer, call Henry Hills.
He was called, but did not prcfcntly appear.
Mr. Sol. Gen. Call Mr. Bridgman though thefc Declarations prove them-
felve-;, we have them here Printed but Swear Mr. Bndgtman.
Mr. Bridgeman Sworn.
Mr. Sol. Gen. Shew Mr. Bridgeman the two Declarations.
LordCb. Juft. W hat do you ask him ?
Mr.Sc/. Gen. We ask you, Sir, if the two Declarations were Printed.
Mr. Bridgeman. What Declarations do you mean, Mr. Solliitor ?
Mr. Sol. Gen. You know what Declarations I mean, well enough, but we'I ask
you particularly-, you know the Declaration that was made the #h. of 4pril3 in
the third Year of the King. was it Printed ?
Mr. Bridgethon. Yes, it was Printed by tht King's Order.
Mr. Sol.Gcn.Vfas that of the ayth.of April^ in the Ath. Year of the King Printed ?
Mr. Bridgman. Yes, they were both Printed by the King's Order.
Mr. At. Gin. Then the next thing in courie, is the Bifhops Paper.
Sir Rgb. Sawyer. Mr. Bridgeman, pray let me ask you one Qyeftion •, Did you ever
compare the Print with that under Seal ?
Mr. Bridgeman. I did not compare them, Sir Robert Stwjer.
Mr. Sol Ge»i He does Swear they were Printed by the King's Order.
Sir Robert Sawyer. Good Mr. Sollicitor give me leave to ask him a QuefHon- < .
Can you Swear then that they are the fame '•>.
Mr. Bridgman. 1 was not asked that Queftion, Sir.
Mr. Sol. Gen. Come then, Mr. Bridgeman, I'le ask yoii. Do you believe they
arc the fame 2
Sir Kob. Sawyer. Is that an Anfwcr to my Queftion ?
Mr. Sol. Gen. We muft ask him Queftions as wdl as you. Sir Robert — what fay
you ? Do you believe, it to be the fame ?
Lord Ch. juft. You hear Mr. Solicitors Queftion, anfwer it Mr. Bridgtman.
Mr. Bridgeman. Yes my Lord, I do believe it.
LordCb. jujh Well, that's enough.
Mr. At. Gen. If thete wercoccauon, we have them here Compared, and they
are the fame.
Sir Rob. Sawyer^ With Submiflion, my Lord, in all theie Cafes, if they will
prove any Faft that is laid in an Information, they muft prove it by thofe that know
it of their own Knowledge. Do you know it to be the fame?
Mr. Sol. Ge». That's very well, Sir.
Sir Rob-Sawyer. Ay, fo it is, Mr.5ollicicor,It is a wonderful thing,my Lord,that We
cannot be permitted to ask a Queftion. •*= — Do you know it to be the fame, Mr.
BriJgeman, I ask you again ?
Mr. Bridgeman. I have not compared them I tell you. Sir Robert Sawyer.
Sir Rfb. Sawyer. Then that is no Proof.
Lord Ch. juft. Would you have a Maa Swear above his Belief, he tells you he
believes it is the fame.
Sir Hob. Sawyer. Is that Proof of an Information ?
Lor deb. juft. Well, you'l have your time to make your Obv&ions by and by.
Mr. At. Ge-n. Then Swear Sir John Ntcbokt.
Sir John Nicbolaf. I am Sworn already.
Mr. At. Gen. I fee you have a Paper in your Hand, Sir John Nitbobit, pflay vho
had you that Paper from ?
Sir John Nicholas I will give you an Account of it, as well as I can.
:Nir. Polkxfen. Before they go to another thing, my Lord, we think they have
failed in their Proof of their Information, about the Printing this £>fcclaratic*.
Mr. At. Gen. Where is Mr. HiUt.
Mr.
[5*]
Mr. JUJF. AUyb. They have laid, That it was printed by the King's Order -,
i it is fuch a matter, Mr. Sollicitor, as you may clear, if you will, lure.
Mr. Sol. Gen. There is Mr. Hills ^ now lieehifn.
L. C. Jujf. I was going to give Order that you fliould fend to the Printing- houfc
for him.
Mr.Jufl.Anyb. They may put this matter out of doubt too, if they will, on the
other fide -, for I fee they have a Copy in Print, and there's the Original, they
may compare them if they pleafe.
Kir. Sol, Gen. I am very glad to hear fuch a ftfong Objection.
Sir Rob. Sawyer. We would clear the way for you, Mr. Sollicitor.
Mr. Sol. Gen. No, you put Straws in our way ^ we {hall be able enough to clear
it without your help. Swear Mr. fM/and young Mr, Graham here.
Hills and Graham fworn.
Mr. Sol. Gen. Mr. Graham, did you compare any of thefe Printed Declarations
with the Original ? _
Graham. Yes, I did compare fome of diem, and did make Amendments as 1
went along.
Mr. Sol. Gen. Shew one that you have compar'd with the Original.
Mr. Att. Gen. Hills is here himfblf, we'll ask him. Are you fworn, Sir;
Crier. Heisfworn.
Mr. Att. Gen. Pray were the King's Declarations for Liberty of Confcience print-
ed both of them?
Hills. Ay, an't pleafe you, Sir.
Mr. Att. Gen. Y"ou printed them, I think.
Hills. Yes, I did print them.
Sir Rob. Sawyer. Mr.HiBs, you fay they were printed : Upon your Oath, after
they were printed, did you examin them with the Original under Seal?
HiUs. They were examined before they were printed.
Sir Rob. Sawyer. Did You examin them?
Hills. I did not, here's one that did.
Mr. Sol. Gen. Who is that ?
Hills. It is Mr. Williams here.
. Mr. Sol. Gen. Swear him.
Williams fworn.
Mr. Sol. Gen. Do you hear, Williams ? Do you know that the King's Declaration
for Liberty of Confcience, two of them, one of the 4th of April ^ and the other of
the 77th of April., were printed ? Williams. Yes, my Lord.
Mr. Sol. Gen. Did you examin them after they were printed, by the Copy they
were printed by ? Williams. Yes, I did.
Mr. Sol. Gm. Where had you the Copy •, who had you it from?
Williams. I had it from Mr. Hills.
Sir Rob. Soaker. Mr. Williams, did you examin them with the Original under the
Great Seal ?
Williams. The Firft Declaration I did.
Sir Rob. Sawyer. The Second Declaration is the main.
Williams. The Second was Compos'd by the Firft.
Sir Rob. Sawyer. Why, is there no more in the Second Declaration than there
was in the Fir ft?
Williams. Yes, there is, Sir.
Sir Rob. Sawyer. Did you examin That with the Original under the Great Seal?
Williams. No, I did not.
Mr. 9ol. Gen. Can any one tell who did examin it under the Great Seal ?
Mr. FtMcb. Pray what did you examin it by, Mr. Williams ?
Williams. By a Copy that I rccciv'd from Mr. Hills.
Mr. Att. Gen. Then we will go on ; and we deflre Sir John Nicholas to give an ac-
count where he had that Paper that he has in his hand.
Mr. Finch. My Lord, it_ docs not appear that the"Copy that was printed is chc
true Copy of the Declaration.
Mr. Att. Gen. He fays he had it from Mr. Hills.
Mr. Finch. Pray, Mr. Hills, what did you examin that Copy by, which you
' *
Jfi'lt. I had the Copy from Mr.
Mr l-inch. Did you cxaminit with the Original under die Great Sea!?
//;/.'/. 1 didnotexaminit, I had it from Mr. BrtJgeman.
Mr. Finch. What, was it under Seal ?
Mr. Kriiljteman. It was the Original figned by the King.
Mr. Finch. But I ask you, was it under Seal ?
Mr. Britlgtman. Not under the Great Seal it was not, it wa* the rcry Declaration
the King ligned.
Sir Rob. Sa-wjer. But it ought to be compar'd with the Original, 'or it is no good
proof thai it is the lame.
Mr. Sol. Gen. Sir Robert Sawyer^ you undcrftand Collation better furc, you Ihould
be afham'd of fuch a weak Objection as this.
jVilliamt. We never bring our Proof to the Great Seal.
Sir Rob. Sawyer. But if you will have it Proof at Law, you muft have it compa-
red with the Original.
Mr. Sol. Gen. Do you think there is any great ftrefs to be laid upon that ? we only
fay it was printed.
Sir Rob. Sawyer. But you have made it part of your Information, and therefore
you muft prove it.
L. C. Juft. I think there's proof enough of that -, there need no fuch nicety.
Mr. Poltixfen. Well, my Lord, we muft fubmit, let them go on, we won't
ftand upon this.
Mr. Ait. Gen. Then pray let me go on. Where had you £hat .Paper, Sir John
Nicholas ?
Sir John Nicholas. I had this Paper from the King's Hand.
L.C.Jii/t. Put it in.
Mr. Sol.Gett. Who had you it from, do you fay ?
Sirj.Nich. From the King.
Mr. Sol. Gen. About what time had you it from the King, ,Sir ?
Sir J. Ntcb. I had it twice from the King.
Mr. Sol. Gen. When was the firft time, Sir ?
Sir J. Nick. The firft time was in Council the 8th of this month.
Mr. Sol. Gen. What became of it afterw.-ur ?
Sir J. Nich. The King had it from me the i ith, and the I jth I had it from ehc
King again.
Mr. Sol. Gen. Pray deliver it this way into the Court : T-Ve will now go on, and
prove the Bifhops hands to it. This is the Paper .ipon which we bring this Infor-
mation, Gentlemen-, it is all the Hand-writing of my Lord Archbifhop, and fign-
cd by Him and the reft of the Bifliops.
Mr. Att. Gen. I fuppofe my Lords the Bifliops will not put us to prove it, they
will own their Hands.
L. C. jujl. Yes, Mr. Attorney, thejr Council will put you to prove it ; I per-
ceive your beft way is to ask nothing of them.
Mr. Att.Gcn. My Lord, we willdefire nothing 'of them, we will go on to our
Proofs. Call Sir Thomas Exion, Sir Richard Rajnes , Mr. Brooks^ Mr. Recorder , and
Mr, William Mfddleton.
Sir Thomas Exton appeared, and was fworn.
L. C. Jufl. What do you ask Sir Thomas Exton ?
Mr. An. Gen. Pray conyev that Paper to Sir Thomas Extoa.
Mr. Sol. Gen. Shew that Paper to Sir Thomas Exton. — SirTbcmat, I would ask
you one queftion : Dp you know the Hand-writing of my Lord Archbilhop of
Canterbury ?
Sir Thomas Exton. Ill give your Lordlbip what account I can.
Mr. Sol. Gen. Pray, Sir, anfwcr my queftion-, Do you know his Hand-wri-
ting ?
Sir Tha. Exton. I never law him write five times in my life.
Mr. Sol. Gen. But I ask you, upon your Oath, do you believe that to be his
Hand-writing ?
Sir 760. Exton. I do believe this may be of his Hand-writing.
Mr. .' ol. Gen. Do you believe all the Body of it to be of his Hand-writing, or on-
ly part of it J
Sir The. Exton.
[53]
Sir Tbo. Exton. I muft believe it to be fo, for I have feen fome of his Hand-wti-
ting, and this is very like it.
Mr. Sol. Gen. What fay you to the Name ? do you believe it to be his Hand-
writing ? Sir Tbo. Exton. Yes, I do. •
Mr. Sol. Gen. Do you know any of the reft of the Names that are upon that Paper J
Sir Tbo. Exton. No, I do not.
L. C. Jttft. Do you for the Defendants ask Sir Tbo. Exton any Queftion ?
Sir Rob. Sawyer. No, my Lord.
Mr. Att. Gen. Then call Sir Richard Raynes.
Sir Tbo. Exton. My Lord, Sir Ricbard Raynes has been lick this month, and has
not been at the Commons.
Mr. Sol. Gen. We have no need of him. Call Mr. Brooks.
Mr. Brooks fworn.
Mr. Att. Gen. Pray (hew Mr. Brooks that Paper.
Mr. Sol. Gen. Mr. Brooks, I ask you this Queftion, Do you know my Lord Arch-
bifliop's Hand-writing?
Mr. Brooks. Yes, my Lord.
Mr. Att. Gen. Pray look upon that Paper ; do you take that to be my Lord Arch-
bi (hop's Hand ?
Mr. "Brooks. Yes, my Lord, I do believe it to be my Lord Archbifliop's Hand ?
Mr. Att. Gen. What fay you to the whole Body of the Paper ?
Mr. 'Brooks. I do believe it to be his Hand.
Mr. Att. Gen. What do you fay to his Name there ?
Mr. Brooks. I do believe 'this Name is his Hand-writing.
Mr. Sol. Gen. Call Mr. William MidJleton.
Mr. Att. Gen. Pray Mr. 'Brooks don't go away, but look upon the Names of the
Biftiop of St. Afaph, and my Lord of Ely.
Mr. Sol. Gen. Do you know my Lord Bifhop of St. Afapb's Hand -writing ?
Mr. Brooks. I have feen my Lord Archbifhop of Canterbury and the Sifhop of •
St. Afapb's Hand-writing, and 1 do believe this is his hand.
Mr. Sol. Gen. Look you upon the Name of my Lord of Ely; do you know his
Hand-writing ?
Mr. Brooks. My Lord, I am not fo well acquainted with myLord of E//sWriting.
Mr. Sol. Gen. But have you feen his Writing ?
Mr. Brooks. Yes, lhave.
Mr. Sol. Gen. Is that his Writing do you think ?
Mr. Brooks. It is like it.
Mr. Sol. Gen. Do you believe it to be his Hand ?
Mr. Brooks. Truly I do believe it.
Sir Geo. Treby. Did you ever fee him write ? Mr. Brooks. No, Sir.
Mr. So'. Gen. But he has feen his Writing.
Sir d Treby. How do you know that it was his Hand-writing that you faw >
Mr. Brooks . Becaufe he own'd it.
L. C. Juft. How do you know it, do you fay ?
Mr. Brooks. I know it, I fay,becaufc I have feen a Letter that he writ to another
perfon, which he afterwards own'd.
L. C. Jufl. What did he own, Mr. Brooks ?
Mr. Brooks. That he wrote a Letter to another perfon, which I faw.
Sir Geo, Treby. To whom, Sir ?
"Sir Rob. Sawyer. Have you the Letter here, Sir?
Mr. Brooks. No, Sir, the Letter was writ to my Lord Bifliop of Oxford.
Sir Get. Treby. Can you tell what was in that Letter ?
Mr. Att. Gen. What is that to this Queftion? You ask him, how he knows his
Hand-writing : and, fays he, I did not fee him write, but I have feen a Letter of his
to the Lord Biftiop of Oxford.
L. C, juft. And he does fay, my Lord of Ely own'd it to be his Hand that is there.
Mr. Sol. Gen. No, myLord, that's a miftake, he own'd a Letter that he had writ
to the Biftiop of Oxford to be his Hand-writing, and by comparifon of this with that
(fays he) I take this to be his Hand-writing.
Mr. Brooks. That is my meaning, myLord.
Mr. Sol. Gen. Pray (peak out, and tell us what are the rcafons that makes you"
fav YOU believe this to be the Bifliop of Ely's Writing ?
P Mr. »
[54]
Mr. Brooks. Bccaufc it rcfcmblcs a Letter that I have by me of his writing to the
Bifliop of Oxford.
Mr. Sol. Gen. And you fay he own'd that Letter to be his ?
Mr. Brooks. My Lord Bifliop of OtforJdid anfwcr it, and I waited upon the Bilhop
of Ely with the Anfwer, and he did own it.
Sir Gto. Trebj. How did he own it, Sir ?
Mr. Brooks. I had fome Communication with my Lord of Sty about the fubftance
of that Letter, and therefore I apprehended he own'd it.
Mr. Jujl. To-well. That's a ftrange Inference, Mr. Sollicitor, to prove a man's Hand.
Mr. Att. Gen. We have more Evidence ; but let this go as far as it can.
Mr. Serj. Pemberton. Certainly, myLord,you will never fuffer fuch aWitnefs as this.
L. C. Jujt. Brother Prnpfcrtoj 1 iuppofc they can prove it otherwife, or clfe this is
not Evidence.
Mr. ?«/?. Powell. So they had need, for it is a ftrange Inference of Mr. Sollicker,
that this is a Proof of my Lord of Ely's Hand- writing.
Mr.J*ft.Holloway. The Bifliop of Oxoa was dead before any of this matter came
in agitation.
Mr. Scl. Gen. My Lord,we will bring other Proofs.— Call Mr. Cbetwood & Mr. Smith.
Mr. Cbetwood and Mr. Smith fworn.
Mr. Sol. Gen. Mr. CbetwooJ,vfc would know of you if you know my Lord Bifliop
of E^'sHand-writrng ? Mr. Cbetwood. I never faw him write.
Mr.Sol.Gen. That's not an Anfwer to my Queftion: Do you know his Hand-
writing ? Mr. Cbetwood. I do not certainly know it.
Mr. Sol. Gen. Have you feenany of it ?
Mr. Cbetwood. I have leen my Lord of E//s Writing, that has been faid to be his.
L. C. Jttft. But furely you had better take a Witnefs that has feen him write.
Mr. ?«/?. Powell. I think 'tis hardly poflible for a man to prove his Hand, that has
not feen him write.
L. C. Jttft. I think 'tis better proof, indeed, to bring fome that has feeo him
write.
Mr. Chef-wood. My Lord, 'tis a long time fince I faw my Lord ofEl/s Writing.
L.C.JuJt. Pray bring fome other Proof, if you have it.
Bp. of Peterburgb. My Lord, we are here as Criminals before your Lordfliip,
and we are profecuted with great Zeal : I beg your Lordfliip that you will not be of
Councel againft us, to dirett 'em what Evidence they (hall give.
L. C. Juft. My Lord of Peterburgb. I hope I have not behaved my fclf any other-
wife hitherto than as becomes me : I was faying this (and I think I faid it for your
Lordfliips advantage) That this was not fufficient Proof; and I think, if your Lord-
fliip obfervcd what I faid, it was for you, and not againft you.
Bp. ofPeterb. It was to direct them againft us, how they ftiould give Evidence.
Mr. Serj. Pemberton. Pray, my Lord of Ptterburgb^ fit down, you'll have no
wrong done you.
Sir Rob. Sawyer. We that arc of Council will take care of that ; and pray, my
Lord, will you pleafe to pafs it by.
L. C. Juft. We arc not ufcd to be fo ferv'd, and I will not be ufed fo.
Mr.. Sol. Gen. If your Lordfliip pleafes to pafs that by, for what your Lordfliip
faid was in favour of my Lords the Bilhops, but I fee they do not take it fo.
Mr. Att. Gen. Pray, Mr. CbctwooJ, do you look upon the Name of my Lord of
Ely i do you believe that to be his Hand-writing ?
Mr. Chetwood. I do believe it is.
Sir Reb. Sawyer. That's vcrvwcll, when he fays he never faw him write.
Mr.?»/?. Powell. What is the reafon of that belief of his, I would feign know ?
Mr. Chitwood. I have formerly fccn his Hand, I think it was his; but 1 never faw
Lord of Ely write his Hand.
Sir Rob. Sawyer. Then the Queftion is, Whether this be Evidence?
Mr. Fmch. How do you know that that which you faw formerly was my Lord
of£/;'sHand?
Mr. Chetwood. I have no fuch Certainty, as pofitively to fwear that that was
his Hand.
Mr. Sol. Gen. We will go onto other Proofs ; and if we want better Evidence at
the end, we will argue with them.
•.
Mr,
[55]
Mt. Chetwooa1. I am not certain that what I faw was my Lord of l£//s Hand- wri-
ting, becaufe I never faw him write.
Mr. Sol. Gen. You do very well to (hew your good affeftion.
Mr. Att. Gen. Mr. Smith , I would ask you this Queftion, Do you know my Lord
of Ely's Hand- writing ?
Mr. Smith. I have feen it often.
Mr. Att. Gen. Look upon the Name of my Lord of Elj in that Paper ; Do you
believe it to be my Lord's Hand-writing, or no ?
MT. Smith. I did not fee him write it, Sir^ I can not tell whether it is or no.
L. C. jutt. Did you ever fee his Name ? '
Mr. Smith. Yes, but it was a great while ago, and here are but feven Letters,
and I cannot judge by that : I was better acquainted with his Hand-writing here-
tofore.
Mr. Sol. Gen. Pray, Sir, anfwcrmei Do you believe it to be his Writing, or do
you not ?
Mr. Smith. I believe it may, for I did not fee him write it.
Mr. Sol. Gen. But my Queftion is, Dp you believe it, or do you not ?
Mr. Smith. I fay, I was better acquainted with it heretofore than I am now.
Mr. Sol. Gen. But pray anfwermy Queftion: Do you believe that to be my Lord
of Ely's Hand-writing, or do you not ?
Mr. Smith. I believe it may. Sir.
Sir Rob. Sawyer. Why do you believe it ?
Mr. Smith. I have no other reafon to believe it, but becaufe I have feen fomc-
thing like it.
Mr. Juft. Powell. How long ago is it fihce you faw him write ?
Mr. Smith. I have not feen him write, fo as to take notice of it, for fome years:
I could better judge of it when he writ his Namc7«r»er, than now it is Efy3 becaufe
there was more Letters to judge by.
Mr. Middleton fworri.
L.C.jnf. Here's Mr. Middkton; what do you call him for ?
Mr. Sol. Gen. To prove many of their Hands.
Mr. Att . Gen. Pray (hew him that Paper.
Mr. Sol. Gen. Firft, Mr. Middleton, do you know my Lord Archbifhop's Hand-
writing?
Mr. Middleton. I have feen his Grace's Hand-writing.
Mr. Sol. Gen. Do you believe it to be his ?
Mr. Middleton^ It is very like it.
Mr. Sol. Gen. But do you believe it, or do you not ?
Mr. Middleton. I do believe it.
Mr. Sol. Gen. Do you know my Lord Bifliop of St. Afapb's Hand-writing ?
Mr. Middleton. I never faw it as I know of.
Mr. SoLGen. What do you fay to nay Lord of Ely? his Name is next*
Mr. Middleton. It is like his Lprdfhip's hand.
Mr. Sol. Gen. Do you believe k, or do you not ?
Mr. Middleton. It is like it, that's all I can fay.
Mr. Sol. Gen. Cannot you tell whether you believe it, or not believe it ?
Mr. Middleton. I do believe it is his hand.
Mr. Sol. Gen. Did you ever fee him write ? for I would clear this matte r beyoud
exception-
Mr. Middhton. I have feen his Lordfliip write, but I never flood by him fo near
as to fee him make his Letters.
Mr. Sol. Gen. Is that his Hand-writing?
Mr. Middleton. It is like it, I believe it is his.
Mr. Sol. Gen. You did not guide his Hand I believe.— -Do you know my Lord of
Chicheper's Hand-writing?
Mr. Middleton. Sir, I am acquainted with none of their Hands but with my Lcfd
of Canterbury's and my Lord of Ely's.
Mr. Sol. Gen. Do you know my Lord of Peterbureh's Hand -writing ?
Mr. Middleton. I had my Lord of Peterburgb's Writing two years ago for fomc
money, but I cannot fay this is his.
Mr. Sol. Gen. Do you believe it to be his ? Mr. MiJJhto*.
Mr. MiddUto*. I never took notice of itfo much, as to fay, I believe it co be
like ir, I never faw it but once.
Mr. Sol. Gen. Do you know any other of die Names there ? What lay you to the
Billiqp of Sri/tor* Name ?
Mr. Altddleton. I faw once my Lord of Brijlors Hand-writing.
Mr. Sol. Gin. What fay you to that Writing there J
Mr. Middlctan. ' It is like it.
Mr. Sol. Gen. Do you believe it to be his or no 2
Mr. Middletnn. Truly, that I cannot fay, for I never faw it but once.
Lord Cb. Juft. You never law him Write, did you ?
Mr. Mtddlcton. No, my Lord, I never did.
Mr. Sol. Gen. Then we will call Sir Thomas Pinfold^ and Mr. Clavel. Sir Tho-
mas Pinfold is there, Swear him.
Sir Thomas Pinfold Sworn.
Mr. Sol. Gen. Sir Thomas Pinfold, do you know my Lord Bifhop of Pcttrburgb's
Hand-writing ?
Sir Thomas ['infold. Truly, not very well, I never law but one Letter from him
in my Life -, thcw me his Hand, and I will tell you Which was done.
Mr. Sal. Gen. Well Sir, what fay you to it 2
Sir Tho. Pinfold. Then upon my Oath I fay, I cannot well tell upon my own
Knowledge that it is his Hand.
Mr. Sol. Gen. \ askyou, do you believe it to be his Hand ?
Sir76o. Pinfold. Sir, upon the Oath that I have taken I will anfwer you, that
upon this account, that I have heard there was a Paper delivered by my Lords the
Bifliops to the King, and this Paper that you offer roe, 1 fuppofetobe the fame,
upon that Score I do believe ir, but upon any other Score I cannot tell what to fay.
Mr. Sol. Gen, I ask you upon your Oath, Sir, do you believe it is his Hand-wri-
ting or no ?
Sir Tho. Pinfold. Sir, I have anfwered you already, that upon my^ojffn Know-
ledge I cannot fay it is his Hand-writing ; but becaufe I have heard of fuch a Paper,
I do believe it may be his.
Lord Ch. Juft. Did you ever fee my Lord Bifhop write ?
Sir Tho. Pinfold. I have been in his Chamber feveral times when he ha* been Wri-
ting, but I had more Manners than to look upon what he Writ.
Lord Ch. Juft. Did you never fee him write his Name ?
Sir Tho. Pinfold. I do not know that I ever faw him write his Name, but I have
feen him Writing I fay, and fo my Lord Biftiop may have feen me Writing-,
but I believe he does riot know my Hand.
Mr. Sol. Gen. You have feen him write you fay.
Sir Tho. Pinfold. I tell you,Mr. Sollicitor,! have been in his Chamber when he has
been Writing, but I had more Manners than to look over him.
Mr. Juft. Potvel. Then you did never fee any of that Writing.
Sir Tho. Pinfold. I cannot fay I did, my Lord.
Mr. Att. Gen. Pray did you never fee any of his Writing but that Letter you
fpeak of.
Sir Tho. Pin fold. No, not that I remember.
Mr- y«/?. Powel. Mr. Sollicitor, you mufl call other Witnefles, for this does not
prove any thing.
Mr. At. Gen. We will go on Swear Mr. ClweJ.
Mr. Clavcl Sworn.
Mr Sol. Gen. Do you know my Lord Bilhop of Peterburgbs Hand-writing or no?
Mr. Clave 1. I have feen it many times.
Mr. Sol. Gen. Do you know it when you fee it?
Mr. clavel. I believe I do, Sir.
Mr. Sol. Gen. Pray look upon that Paper, and upon your Oath tell us, do you
believe that Name to be his Writing, or no ?
Mr. Clavel. I do believe it is, my Lord.
Mr. At. Gen. Pray look upon the reft of the Hands there, do you know atoy of
the other Names j
Mr. Clavel. No, I do not.
Mr. At.
[57]
Ntr. Ait.Gw. Have you ever feen any of their Writing?
Mr. dwell. It is probable I may have feen fome, but do not now remember it.
Mr. Sol. Gen. \ think you area Bookfeller, Mr. dwelt.
Mr. dwell. Yes, I am fo, Sir.
Mr. Sol. Gen. \ fuppofe you have had fome Dealings with them in the way of your
Trude, Did you never fee any of their Writing?
Mr. dwelt. I have fecn the Names of fome of them, but it is fo long fince that I cannot
Remember.
L. c. f. Did you ever fee my Lord of Peterborough Write?
Mr. dwell. I cannot tell whether ever I (aw him Write his Name or no ••, but I have
had feveral Letters from my Lord of Peterborough.
Mi. Sot. Ge». Is that his Hand- writing?
Mr.Cbttfff. I cannot fay it is, I believe it is.
Mr. Sol. Gen. You have had Letters from him you fay ?
Mr. dwell. Yes, and it feems to be like his Hand.
Mr. Pollixfen. But you never faw him Write his Hand you fay ?
Mr. dwell. I cannot fay I ever did.
Mr. Sol. Ge». Thefe Letters that you have received from my Lord of Peterborough, did lie
own them ? Do you think they were Counterfeit, or of his own Hand-writing ?
Mr. Clave!!. I fuppofe he has owned them, Sir.
Mr. J. Powell. But you muft Anfvver direcily, Sir, Did he own them ?
Mr. Sol. Gen. What did thofe Letters concern ? were they about Books, or what?
Mr. dwell. They were fometimes about one bufinefs, fometimes about another.
Mr. Sol. Gen. Was the fubjeft-matter of any of thefe Letters about Mony 5 and was it
paid you? Did you receive, or did you give any account of it ?
Mr. dwell. They were about feveral Bufinefles.
L.C. f. Look you, Mr. dwell, you muft give us as particular account as you can.
Mr. So/. Oen. Pray, Sir, upon thofe Letters were the things done that thofe Letters re-
quired.
Mr. dwell. Yes, they were.
Mr. Sol. Gen. Did you do your par t ?
Mr. ClneU. Yes, I did.
Mr.Se/.Gea. Now I would ask you, Do you believe that Name of my Lord Bifhop of
Peterborough to be the Hand-writing of my Lord Bifhop ?
Mr. dwell. I believe it is.
Mr. J. PoveS. Do you know that thofe Letters that you % you received from my
Lord, were of my Lords own Hand- writing, Do you Swear that ?
Mr. dwell. My Lord I cannot Swear that.
Mr. Finch. Do you know whether the Letters that you received, as you fay, were writ-
ten by my Lord himfelf, or by his Secretary ?
Mr. dwell. I have received Letters from him, and his Secretary too.
Sir G. Trebj. But were you prefent with him when he writ any Letters with his own
Hand ?
Mr. Sol. Gen. You do not mean a Letter to your felf fure, Sir George ?
Sir G. Trebj. No Sir, I fay any Letters.
Mr. C(*™ll. I have been prefent with my Lord often, but I cannot fay I have feen my
Lord write. f
L. c. 1. He lias here told you, he has had feveral Letters of my Lords own Hand,
and from his Secretary too.
Mr. f. Po*>eO. He has faid it, but you fee he fays he never faw him write.
Mr. Sol. Gen. We have given Evidence againft my Lord Arch- Bifhop, Lord Bifhop of
£/J, St. dfafh, Peterborough, and Briftol.
Mr./. Powell. Certainly Mr.SolHdtor yourniftake But go on
_ Mr.Sol.Gen. We have given Evidence I fayagainft them, Sir, but whether it be fuf-
ficient Evidence, we (hall Argue by and by. Call Mr. fliwjwand
again.
Mr. ChetWOOd *f feared.
Mr. Sol. Gen. Do you know the Hand- writing of my Lord Bifhop of Bath and
Mr. Chetnood. I have feen it Twke or Thrice, but it is a considerable time fince I did ,
fee it-
Mr. S«l. Gen. Do you believe that is his Hand-writing?
Q. Mr. Chetwetd.
58]
Mr. fketvtod. I never faw him write his Name in my Life.
Mr. S«l. Gen. Pray look upon the Name, and tell us what you believe of it 5
Mr. Chetwood. I believe it may, but I do not certainly know it to be his Hand, I rather
believe it is my Lord Biihop of Bath and will his Hand, than I believe that other to be
my Lord of Peterberou%ks.
SirG.Trtly. Do you believe that to be my Lord of Peterlvo^h\ Hand or no?
Mr. Chetwoed. I fay, I rather believe that this is the Bifhop of 8*th and wtlls his VVri*
ting, than that which is above it or below it, to be their Writing ••, but truly I do not <&•
ftin&ly know my LordBifliopof £4*6 and fells his Hand.
Mr. Sol. Gen. Call Mr. Hoofer.
L. C. J. You are very lame in this matter.
Mr. Sol. Gen. The Witnefles are unwilling, and we muftfind out die Truth as well as
we can.
Mr. Hooper did not afftar.
Mr. S»l. Gen. Call Mr. ?«•« and Mr. Powell.
Mr. JainCS *ff**red and wtu Sworn.
Mr Sol. Ge». Do you know my Lord Biihop of Briftots Writing, Mr. James ?
Mr- James. Yes, I believe I do, but I am not fo certain, bccaufe my Lord Writes feve-
ral times feveral Hands.
Mr. Sol. Gen. Shew him the Pa per: IsthatmyLotd of Sri(Ms Hand ?
Mr. James. I cannor lay ic is or no-
Mr. S«l. Gen. What do you believe ?
Mr. James. It looks like his Hand, and that's all I can fay.
Mr. Sol. Gen. but pray hearken, and Arrfwer to what I ask yea j you are prepared for
one Queftion it may be, and I Hull ask you another: upon your Oath, Do you believe k
to be the Hand-writing of my Lord of Briftol!
Mr. James. Upon my Oath, I can- only fey it looki like it, that's all.
L. C. J. Did you ever tee him Write?
Wr'.Jamit. Yes, my Lord, I have feen his Hand- writing feveral times, and it is like his
Hand-writing, that is all I can lay.
Mr. S»l. Gen. Sir, remember you are upon your Oath, and Anfwer my Queftion.
Mr. James. Upon my Oath, I know no more than that, Sir William w\Ui*ms.
Mr. Sol. Gen. I ask you, Sir; whether you believe it to be his Hand or not ?
Mf .James. My Lord, ic looks like his Hmd, and it may be liis Hand.
Mr. Att. Gen. But youdo think and believe one way or other: What do you believe?
Mr. James, k may-be W^Jiaad, for, what I.know,and it may not.
Mr. Sol. Gen. It may be your Hand.
. James. No, Sir, it cannot be mine,Ian>fure.
oLGcn Wluc dayoM believe?
wa. I beHeve it may be his Hand, or it may not be his Hand, that is all I can
fey.
L. c.J. Come, Sir, you nnuft Answer .fairly, Do ycnt bclin'e it to he his- Haiti, or do
you not?
Mr./W.r. Yes» IdabeHev^ir. •
Mr.Att.Gen. You are very hard to believe methiaks.
Mr. J-ames. No, I am/ooc.
' You do very well now Mr./W/5 when you iflo well, we'll commend
you.
Mr. An. Gen. Call Mr. Nathaniel Powell.
Mr>. Poweii . »** Sworn.
Mi. Sol. Gen. Pray, Sir, Ut's know what's; jcour Name.
Mr. Powell. My Name is Nathaniel Powell.
Mr. Sol. Gen. Pray doyoa know the Hand^wriring of my Lord-Bifhopof
Mr. Powell, I have not feerj. the Paper, 5>ir.
Mr.*/. Gen. Do you know, hisHati
Mr. Powell. Yes,rbelievel do.
Mr. Sol. Gen. Look upon that Nome of bis.
Mr. Povull. I did not fee my Lor,d Write that.
Mr.Ja/. Gen. Who fays you did; oQBpdyaikarfjatof jiou? how y«)« Anfwer !• Pray
Sir, remember your Oath, and Anfwer feriourty, Do you believe it to be his Writing
or no?
Mr.
[59]
I believe it is like my Lord's Hand- writing, but I did never fee rikn
Write it.
Mr. Sol. Ge». No Body fays yoadid,
Mr. PavoeO. Therefore 1 cannot Swear pofitively it is his Hand.
Mr. Sd. Gen. We do not ask that neither.
Mr. Powell. I cannot tell whether it be his Hand or no.
L. c. f. Sir, you muft Anfwer the Queftioa directly, and ferioufly : D j you believe
it, or do you not believe it ?
Mr. Powell. I cannot tell what to believe in the Cafe.
Mr Sol. Gen. Then 1 ask you anotlrer Queftion, upon your Oath, Do you believe it is
not his Hand ?
Mr. Pewell. I cannot fay that neither.
Mr. Sol. Ge». Once again, I ask you, upon your Oath, Do you believe it to be his Hand?
I ask you plainly, and let Mankind judge of you ?
Mr. Powell. I tell you, Sir, I cannot tell what to believe.
Mr. Sol. Gen. My Lord, if thcfe things be endured, there wilt be an end of all Teftimony,
if Witnefles do not anfwer fairly to the Qneftions that are asked them.
Mr. f. ParreU. Truly to me, for a Man to Swear his Belief in fuch a mat;er, is an extraordi-
nary thing.
Mr. Sol. Gen. He isobliged to anfwer Queftions, when they are fairely put to him.
Mr. Pollixjt*. I think that is a hard Queftion, not to be Anfwered.
Mr. Sal. Gtn. Make your Exceptions to tl« Evidence if you pkafe.
L. C. J. Firft, he feys, He knows his Hand •, then he fays, He has feen him write ; and
then he fays, He did not fee him write this; but lie uStiffles, he won't anfwer whether he
believes it or not.
Mr. Petlxfert, The Queftion is, Whether belief in any cafe be Evidence ?
lfa.Sol.GtM. If they have a mind to a Bui cf Exceptions upon that point, let them
Seal their Bill, and we'll Ajgue it with them when they will; in the mean time, we'll
go on, and that which we now pray, my Lord, is, That this Paper may be Read.
Mr. Att. Gen. We have given fuftkient Evidence fare to have it Read, therefore we
defire it may be Read.
Mr. Serj. Levin*,. My Lord, before this Paper be Read, we fcope you will kt us be heard
to it : we think that what they delii e ( to have this Paper Readij ought not to be : for what
is all the proof that they have fciven of this Paper ? they have a praof by Comparifon
of Hands, which in a Criminal Cafe ought nor to be received .- andbefides, my Lord,
what is that Compirilbnof Hands, that they have offered? Some perfons come here
and fay, They cannot tell whether it be their Hands, they believe it may or it may not,
for ought they know ; How mall we Com icfc any Mam upon fnch a Testimony as
this ? can we have cur Remedy againft him for Perjury, for faying, He belitves it to be our
Hand ? therefore here is not any Evidence toCharge us. Forfirftpfc is only a Comparifon
of Hands; And fecondl/, That Comparifon is proved in fuch an uncertain manner : Some1
of them tell you, They do not know what to believe ; another tells you, 1 believe
'tis rather fuch a Lord's Hand ; then tiic others arc fuch a Lore's Hand's, I believe 'tis
rather his Hand than that above it, or that below it; what fort of proof is all this?
Therefore we pray it rmy not l>e Read till they prove it belter.
Mr. Serj. Ptmbcrton. Pray, my Lord, fpare me a w< >rd or two in this matrer for Evidence
lake, there is a great deal of reafon we flunk! take Exceptions to the Evidence that
has been given : for truly I think I never head fucii a fort of Evidence given be-
fore; It is a Cafe of as great Concernment as ever vras ra tftf#i*jhr,i&t£.) and for
them to come to prove Hands only by thofe that fa-w Letters, but never few the
perfoas Write; this I hope will not amount to fo much as a Companion ofvHands.
Your Lordibip knows, that in every petty Caafc, where it depends upon, the Com-
parifon of Hands, they life to bring fome of the Parties Hand- waiting:, which may be
Sworn to, to be the Parties own Hind, sad then it is to be compared in Courc with
whit is endeavoured to be proved, and uprw comparing them together ia Court, the
jury may look upon k, and fee if it be risk ; and never was there any foch a thing
as this admitted in any poor petty Caufe, that is but. of the value of Forty Shillings.
And therefore as to this Evidence, Firft, We fey Comparifon of Hands ought not to
be given at ail in the Cafes of Criminals-, And I believe it was never heard of that
ii fhould. In the- next place, if it be admitted to be Evidence^ yet- it is not fuch an
Evidence) as that by Comparifon of Hands the jary can take notice of it; for in fuch
manner
manner of proofs by Compatifon of Hands, the ufage is, That tlie Witnefs is firfl a^r.ed,
concerning the Writing he produces, Did you fee this Writ by the Defendant, whofe
} tand they would prove ? If he anfwers yes, I did, then mould the Jury upon Compan-
ion of what tlie Witnefs Swears to, with the Paper that is to be proved, judge whether
thofe Hands be fo like as to induce them to believe, that the fames ptrlbn Writ
both ; and not that the Witnefs mould fay, I had a Letter from fuch a perfon, and
this is like the Hand of that Letter, therefore I believe it to be his Hand: My Lord,
I hope this (hall never be admitted for Evidence in this Court.
L.C? I do rake it, that the Witnefs himfelf is Judge of the Comparifon 5 for if
he does know the Parties Hand, and a Paper be offered him to prove the Parties
Hand, lie is to compare it in his own mind.
Mr. Serj. Pembenan. It never was admitted to be fo, that I know of, my Lord, or ever
Read of.
Mr. Sol. Gen. YQU may remember feveral Cafes about that , particularly &hg$
Cafe.
Mr. PoUlxjen. Pray, my Lord, hear me a little as to that: it is a Point of very great
moment, 'whether in the Cafe of a Mifdemeanour either in an Indictment or Informa-
tion, it be good Evidence to offer Comparifon of Hands $ and that this Court did
adjudge quite contrary upon an Indictment of Forgery againft my Lady Carr, ap-
pears in Sjderfin's Reports -, they went to prove her Letters Written by her to C«\ the
Court rejected it, and gave their judgement here, That it was no Evidence } and that
for this Reafon, Becaule of the evil confeguences of it. For faid they, It is an ealie
matter for any Man's Hand to be Counterfeited 5 that they fure will agree, for frequent
daily experience (hews how eafily that may be done : is it not eafie then to cot any
Man down in the World, by proving it is like his Hand ? and proving that likenis by
comparing it with fomething that he hath formerly feen ? this (hikes mighty deep;
the honefteft Man in the World and the moft Innocent may be deftroyed, and yec
no fault to be found in the Jury or in the Judges 5 if the Law were fo, k would be an
unreafonable Law. Next, my Lord, for the Cafe of Sidney , that was a Cafe of
Treafon. Now in the Cafe of Treafon there is always other Evidence brought 5 and
this Evidence conies in, but as a Collateral Evidence, 10 ftrengthen the other ; bat in
this Cafe it is the {ingle Evidence, for ought that appears , for there is nothing more
( for ought I can fee ) in the Cafe , but whether this were their Hands, and proved
only by what another believes : Now (hall any be condemned by anothers belief
without proof? furely, my Lord, that was never Evidence yet to Convict anyone?
fo that their proof failesin both Points-, For firft, It ought to be conlidered whether
Comparifon of Hands be Evidence in a Cafe of Mifdemeanour •-, And next if it be
Evidence, whether you will take it, that the belief of a Man that brings nothing to
compare with it, or never faw the Party Write, but has received Letters , and lays,
This is like it, and therefore he believes it to be his Hand , be good Evidence as a
Comparifon of Hands.
Mr. Serj. Pemberton. My Lord, they are pleafed to mention
Mr. Sol. Gen. Mr. Serj. yoa have been heard already, and you are not to reply upon
us 5 or if you would, we muft be heard firft.
Mr. Serj. Pemberton. I would only fpeak to that Cafe of Sidney : my Lord, that Cafe
differs from this toto C*h, the Writing was found in his pofleflion, in his Study ; there
was the proof that nailed him.
Mr. Sol. Gen. You (hall fee how we'll apply it by and by.
Mr. Att. Gen. Pray, my Lord, favour me a word in this matter : that there is ftronger and
veaker Evidence no Man doubts -, but that which thefe Gentlemen fay, that in tliis Cafe
there is no Evidence, muft needs be a miftake : if they mean, that it is not fo ftrong
an Evidence as is poffible to be given, I agree with them, it is not : For if we had
brought three or four Men that had feen them Write this very Paper, and put their
Names to it, that had been a ftronger Evidence than this, that we have given-, buc
whether we do not give fuch a fort of Evidence as may induce the Jury to belive, that
this is their Paper, and their Hands to it, we fubmit : they fay, This is fuch a method
as never was taken j but I admire that that (hould be faid by Men of their Experience
and Knowledge in the Law ; for is there any thing more ufual, or any other courfe
taJten for the proof of Hands, than for a Wittnefs to fay, He knows the Handof the
Party very well, for he has often feen his Hand- writing, or received Lettters from him ?
and if you fliew him the thing that ytm would prove to be his Hand, and lie fays,
Id*
[6!
r do believe this to be his Hand, for this Reafon, Becaufe I have had other
things of his Writing: Certainly in the Experience of any Man that has practiied,
this is an Evidence that is given every day, and allowed for Evidence. For the
Cafe of Mr. Sidney, which your Lordfhip has heard mentioned, it is certainly ver^
oppofite to this purpofe ; it is infifted upon and pretended, That that was Evi-
dence, becaufe it was found in his Study : but without all doubt, that would not
he the reafon : for may not a Book of another Man's Writing be found in my
Study? and he infifted upon it in his own Defence : but the Anlwer was, That ft
ihould be left as the Queftion, Whether the Jury would believe it upon the
Evidence that was given, of its being his own Hand-writing : And fo in this
Cafe, though it be not fo ftrong Evidence, as if we had brought rhofe that
had feen them Write it-, yet Evidence it is, and whether it be fufficient to
(atisfie the Jury, may be a Queftion ; but no Queftion, it is good Evidence in
Law.
Mr. Soi. Ge». It is a wonderful thing, they fay, That fuch Evidence lliould be
offered : but truly, my Lord, it is a much ftranger thing to hear Mr. Serj. pem.
tenon fay, It was never done before j and then to make that Remark to your
Lordihip upon the Cafe of Sidney which Tie put to your Lordihip and the Court
as a Cafe, and let him contradict me if he can •, and then we fhatt fee how far
it goes. Sidney was Indicted for High Treafon •-, and the Treafon*infifted upon
was, A Writing fuppofed to be his, it being found in his Study 5 the Queftion
was, Whether it was his Hand- writing or no ? there was no politive Evidence
that is was his Hand-writing ; there was no Evidence produced that proved it to
be his Hand- writing •, for there was no one that Swore, That they they faw him
Write it ; there was nothing proved, but the fimilitude of Hands. Ay, but fays
Mr. Serj. Fembenon, It was found in his Study .- will Mr. Serj. fembenon be content,
that all the Libels that are found in his Study, (hall, for that reafon, be adjudged
to be Libels, to be his Hand-writing, and he to be a Libeller for them ? 1
think he will make a fevere Declamation againft that, and he would have
very good reafon for it : Certainly that which was Evidence in one Man's Cafe,
will be Evidence in another. God forbid there fhpuld be any fuch diftinction
In Law •, and therefore I conclude that this is good Evidence.
Mr. Serj. Pembenon. The Court went upon this, That it was found in his
Study, and compared with Letters and Bills of Exchange produced in Court 3
which were Sworn to be cf his Hand- writing.
Mr. Sol. Gen. My Lord, I was by all the time -, for I was ordered to attend
him in the T«v>er $ and therefore I can tell what pafled as well as any Body.
My Lord, they proved no more as to that Libel, but only by Comparifon of
Hands 5 they had no other proof in that Cafe, but by comparing the Hand-
writing •, and that was infifted upon to be a mighty fallible thing : That whic!i
they would have for us to compare , Paper with Paper, it is true, would make
the proof fomewhat ftronger, if we could, in fuch a Cafe as this, be able to pro-
duce fuch Evidence : but I appeal to your Lordfhip, and (hall leave it to the
Jury, to confider which is better Evidence; thefe Men, that have been produced,
that have been Converfant with thefe Lords, and acquainted with their Hand-
writing, and who ( as your Lordfliip fees ) are not willing Men to give Evidence,
they avoid it as much as they can } and they Swear it all to be the Hand-writ-
fng of the Archbifhop of Canterbury, as they believe •, which is as far as any Man
can Swear. One fays the whole Body of the Paper is my Lord of Canterbury's
Hand, and he knows it very well ; fo that we are not upon a fmgle Name, but
a whole Paper that contains many Lines *, and this is as much as can be proved
by any one, that did not fee the thing Written. Then, my Lord, for the reft of
the Company, the Evidence is not fo ftrong againft every one of them, as it is
againft my Lord Archbiftiop ; but is ftrong enough certainly to Convict them of
what we accufe them of : and pray, my Lord, what was the Objection in Sidneys
Cafe, but what has been mentioned here ? That any Man's Hand might be Coun-
terfeited. I remember in that Cafe, there was one Mr. whir-ton, a young Gpn-
tleman, then in the Court, that undertook to the Court, Tliat he would Coon-
R terftic
tetfcit tliat Hand prefently; and he that was to Swear the Co:npari(on, fhould not
know, which was the one, and which was the other; which ceruinly was a
ftronger Cafe than tins. And I fee fome of the Learned Gentlemen th.it are now
landing at the Bar, who prefled this matter very lurd a&iinir. Mr. Sidney, and
Mr.SiAifj loft his Life upon that Companion of Hands-, th<;iK>h MJ. irhanon did
Tcftirie how eafie a matter it was to have a Man's Hand (JouatenVced-, and
we all know was a Man of Value and Quality, i i--, a lv (iJent fur
Mr. Serj. lembert.n, that never heard of this Law before. They fjy die proving
• >f fiinilitudeof Hands is no Rvidence, unlefs you prove the actual \Vriiwg-, what
a condition then will EngUudbein, when Witnefles are Dead •' Is it n.>t the molt
common practice that can be, to produce Witnelles to prove fuch Mca are Dead,
whole Names are tec as Witneffes to Deeds •-, and they Sweat, Ti.ey believe it
to be the Hand- Writing of thofe Wirnefles ? Can there be any greater Evidence of
fuch a Cafe, unlels it be the confeflion of the Party KnUelif? My Lord, we arc
now only upon reading this Paper. We have been heard, and tiicy liave been
heard -, now we pray the Paper may be Read.
Mr. Reefer. We pray it may be Read.
Mr. Serj. Lejfnz. If your Lordfhip pleafe —
Mr. Sol. Get. We arenoc to be replied upon, Mr. S'trjfjm.
L.C.J. You have fpoke Brother Levi»t, and yen have ip. ike Brother '>*£«•/(?>»,
and I would willingly hear you what you have to lay , but we mult not
have vying and revying, for then we (hall have no end
Mr Serj. Levin*,, I would offer your Lordlhip fome new matter \\hicli lias not
been touched upon yet; why ic is not to be Read.
L C. J. What's that Brother ?
Mr. Ser\. Levins. All the proof that has been given whatfoever it amounts to,
has been only of its being Written, but no proof has been given of its being
Written in the County of Mdd/efex, where the Information is laid, and the mat-
ter is Local.
Mr. Sol. Gen. Firft Read it, and then make your Objection.
Mr. Recorder. My Lord, as to the Evidence that has been given, I would only
put your Lordlhip in mind of one Cafe 5 and that was the Cafe of Sir>'«»*^
B.trnardifton : and the great Evidence there, was the proof of its being his Hand-
writing 5 and that being proved, was furfidenc to Convuft him of a Libel: lor
they could not believe Sir Samuel Bxrnxr&ftm \v$s Guilty of making Libels, unlefs
they were proved tobetfis Hand- writing.
Sir Robert Sawyer. He owned them to be his Hand- writing.
L. C. J. If you do expect my Opinion iu -it, whether this be ^vJ Evulence,and
whether this Paper be proved or no -, 1 am ready tv) ^ive i:. •
Mr. Finch. My Lord, I delire to be beard before the Opinion of the Court lie
given.
Mr. Sol. Gen. If there be not proof enoygh to induce the Jury to believe .
is their Paper ; yet (ure there is enough co Read it.
Sir Robert Stwyer. My Lord, we have not been heard to this yet.
Mr. Sol. Gen. Why, is this fit to be fuftered ?
L. c. J. Mr. Sol. I am always willing to hear Mr. Fink.
Mr. Sol. Gen. But I hope your Lordlhip, and the Court, are not to be Complemented
into an unufual thing.
Mr. Serj. i emberton. It is not a Complement, but Right and Ju (lice.
MX. Sol. Gen. Certainly it is Right and Juftice, that there mould be fome limits
put to Men's fpeaking, that we may know when to have an end.
Sir Robert Saiycr. Mr. Solttdtor does miftuke tlie right, my Lord, for we dcfire to
be heard to this Point 5 as not -having fpoke to it yet.
Mr. Sol. Gen. Pray, Sir, let trie .make my Objection to your being beard: for
1 believe you and I have been chid fevcral times, for fpeaking over ar.d over die iame
thing.
Sir/?.
$KJR.S**ytr. This that we now offer, is not to the tame Point, that we have
fpoken to already.
Mr. Ssl. Gen. We are now fpeaking to the Reading of the Paper, and you have
fpoken to it already.
Sir R. Sawyer. If the Court will pleafe to hear us, we have that to offer again/I
the Reading of that Paper, which has not been offered yet.
L. C. f. Sir Robert Sawyer , I take it, it is in the Brea/t of the Court to hear when
they will, and as much as they will, and whom they will •, for if Three or Four
have been heard of a fide to {peak what they will, the Court may very well de-
pend upon the Learning of thole Three or Four, that they fay what can be (aid up-
on the Point, and that s enough -, but if Six or Se-ven defire to be heard over and
over to the fame thing, certainly the Court may ftop at Three or Four, if they
Sir R. S*wycr. This is a new Objection that none of us have been heard to
yet.
Mr. Finch. My Lord, that which I offer is not contrary to the Rules of Law, nor
contrary to die Practice of the Court $ nor was I going any way to invade that
Priviledge which Mr. SelKcitar claims of making Objections, and not receiving an
Anfwer.
Mr. Sol. Gen. What a fine Declamation you have now nude ! I never claimed any
fuch right 5 but I oppofe your being heard over and over to the fame thing.
Mr. An. Gen. Pray, my Lord, let s come to forne Iffue in this matter.
L.C.J. I will hear you; but I would not have you introduce it with a reflection
upon the King's Council.
Mr. Sal. Gen. My Lord, U" you impofe that upon him, you flop his Mouth -, for
fome Men cannot fpeak without reflection.
L. c. f. On the other fide, pray Mr. Solllcitor, give us leave to hear fairly what
they have to fay ; for, I perceive, he cannot offer to fpeak, but you prefently flop
his Mouth.
Mr. Finch. My Lord, that which I was going to fay, is another matter than any
thing that has been yet offered : We fay, that this Paper ought not to be Read j
for that they are obliged by Law to prove' their Information-, and consequently,
having laid a particular place where the thing was done, in the Information, they
ought to prove that this was done in that place. The Evidence that they have
given, is of my Lords the Bithops Writing this Paper ••, and they have laid it to
be done in Middlefex : and this, \\ ith f "ubmiffion to your LordiJup, is local j and
they muft prove it to be Written in Middlefex, where they have laid it, or elfc
they fail in their proof. This is another Objection, whkli as yet hath not been
fpoken to : That if there be a proof of their Hand-writing, yet there is no proof
where that Hand was Written-, and therefore they are not. yet got fo far, as to
have it Read againft my Lords.
Mr. Att. Ge». For that Point, my Lord, we fay, This would have been as pro-
perly faid after the Paper had been Read, when they come to make Objections
againft our Proof, by way of Defence : and, with fubaiifllon, it had been more
proper then, than it is now : For what are we now doing l My Lord, we are
Proving that fuch' a Paper was Subfcribed by my Lords the Bifhops •-, and Sir John
Nicholas gives you an Account, that he had it from his Majefty at the Council and
that certainly is in the County of Mlddlefex 5 and it will concern you to Prove
that it was Written ellewbere.
Mr. S'erj. P ember ton. That's very well Mr. Attorney -, fure you do not think as you
fpeak.
Mr. Att. Gen. Here is a Paper CompoiVd and Written by you, that Sir J»hn Ni-
cholas fays he had from his Majefty: how he came by it, I fuppofe you will tell as
by and by : this is your Hand-writing, that I think we have proved fufficiently ;
this is found in the County of MMcfex: and you come and tell us, that we mui!
Prove that it was Written in the County of Mittdlejex -, and it is taken to be Writ-
ten where it was found, unlefc you Prove the contrary, 4
M
r,-
.ifr.Xerj. Pemf-ertoH. Thai's pietty Doctrine indeed, and very ne\v.
M' . •. My Lord, here's an Objection made too timely: we are now upon
ReAdntg of this Paper: and the Queflion is, Whether it Ihall be Read or not he Read.
Surely we have given Evidence enough to induce the Court to Read it: and it is
another Queflion, that will come time enough afterwards •, Where it was Wri-
ten>
/ . C. J. Truly, I do not think it was proper for you to ftand upon the Place wlvere
it was Written as yet.
Afr.Scr). Lcvinz. When we are upon an Information of a Fact in Middlefcx^ \\\\\
you hear them give Evidence of a Fait mTarkJkire ?
Mr. Sol. Gen. We are not to be driven by thefe Gentlemen ; we are to be directed
by the Court.
L. C. 1. I think truly it is yet too early to make this Objection.
Mr.Serj. Pewberton. Surely, my Lord, this is our. time to oppofe the Reading of
it, as not proved.
Atr.f. rwell. Mr. Sollicitor, I think youhave not fuffidently proved this Paper to
be Subfcribed by my Lords the Bimops. '
Mr. Sol. Gen. Not to Read if, Sir ?
Mr, J. Powell. No, not to Head it, it is too flender a Proof for fuch a Cafe : I
grant you, in Civil Actions a ilender proof is fuffkienr, to make out a Man's Hand,
by a Letter to a Tradesman , or a Correfpondent, or the like ; but in Criminal1
Caufes (fuch as this) if fuch a proof be allowed, where is the fafety of your
Life or any Man's Life here.
Mr. Sel. Gen. We tell you a Cafe where it was allowed •, and that is Mr. Sidneys
Cafe ; a Cafe of Treafon, and Printed by Authority : We tell you nothing, buc
what was done to'ther day.
L. C. f. 1 tell you what I fay to it-, I think truly there is proof enough to have
it Read: and I am not alhamed nor afraid to fay it; for I know I fpeak with the
Law : fay what you will of Criminal Cafes, and the danger of Peoples Lives ?,
there were more danger to the Government, if fuch proof were not allowed to
be good.
Mr. J. Pmel. I think there is no danger to the Government at all, in requiring-
good proof againft Offenders.
L C.f. Here's my Lord Archbiibop and the Billiop of St.sJfoh and my Lord
of Ely, their Hands are proved -, it is proved to be my Lord Archbilhop's Writing
by Mr. Brookes , and he proves my Lord of E/y's Hand by Comparifon, and fo
my Lord of St. dfaph's. Now Brother P ember ton, there's an Anfwer to yoar Ob-
jection ; it being proved that it is all my Lord Archbifbop's Hand : then they
come and fay, We'll prove the Hands of the others by comparifon : and for tliac
they bring you Witnefles, that fay, They have received Letters from them, and
feen their Hand-writing feveral times : and comparing what they have feen with
this very Paper ; fays the Witnefs , I do believe it to be his Hand. Can ttere be
a greater Evidence or a fuller ?
Mr. Serj. Pembeno*. Admit it be a full Evidence againft my Lord Arch- Bifbop:
What's that to the reft ? There's no Evidence againft them.
Mr. J. Aliybone. Brother Pemberton, as to the Objection you make of Comparing
of Hands; it is an Objection indeed, I do agree ,-^but then confider the inconveni-
ence which you and Mr. Pollixfe* do fo much infift upon: If a Man ihould be ac-
cufed by Comparifon of Hands, Where is he ? He is in a lamentable Cafe-, for his
Hand may be fo Counterfeited, that he himfelf may not be able to diOinguifli jr.
But then you do not confider where you are on the other fide : that may be an Ob-
jection in matters »f Fact, that will have very little weight, if compared and fet
altogether. For, on the other fide, where Ihall the Government be, if" I will make
Libels, and traduce the Government with Prudence and Difcretion, and all the fe-
crecy imaginable ? I'll Write my Libel by my felf, prove it as you can ; that's
a fatal blot to the Government ••, and therefore the Cafe is not the lame ; nor is
your Doctrine to pafs for current here; becaufe every Cafe depends upon its
own Fact. If I take upon me to Swear I know your Hand , the inducements
are to my fclf , how I came to know it , fo as to Swear it : Knowledge
depends
depends on Circumftances 5 I fwear that I know yon, but yet I may be under a
miftake, for I can have my knowledge of you no other way but from the vifibili-
ty -of you, srd another Man may befo like you, that there is a pofiibility of my
being miftaken ^ but certainly, that is Evidence, and good Evidence : Now here
are feveral Gentlemen that fwear as to my Lord Archbifhop's Hand- writing •, I
do agree, as to feme of the others, that the Evidence is not fo ftrong ; for what
that Man faid,that he did believe it was rather fuch a Lord's Hand,than that which
went before, or that which came after , it is of no weight at all, and fo fome
of the others ; but it is pofitively proved againft my Lord Archbiftop and
one or two more } fo that that's enough to induce the reading of this wri-
ting.
Mr. Jnft. Holloway. Good my Lord, let me give my opinion.
/,. C. Jitft. Ay, vvithall my heart, Brother.
Mr. Jnft. fJolloway. My Lord, I think as this Cafe is, there ought to be a more
ftrong proof, for certainly the proof ought to be ftronger and more certain in
Criminal matters than in Civil matters ^ in Civil matters, we do go upon,
flight proof, fuchas'thecomparifonof Hands, for proving a Deed, or a Witnefies
Name, and a very fmall proof will induce us to read it } but in Criminal matters
we ought to be more ftricT;, and require pofitive and fubftantial'proof, that is
fitting for us to have in fuch a Cafe, and without better proof, I think it ought
not to be read.
L. C. Jnfl. You mufl go on to fome other proof Mr. So///«Vo#r,for the Courtis
divided in their Opinions about this proof.
Mr. Soli. Gen. Then, my Lord, we will come to the Confeflions of my Lords
the Bifhops, and I hope that will be believed by all Man-kind.
Mr. Att. Gen. Truly my Lord , we did forbear that Evidence, and would not
have proceeded this way, if we had had fair play on the other fide.
Sir Ro. Sawyer. Mr. Attorney, give us leave to defend our : Clients all the ways
we can j I think we doe nothing but what is fair ; the Court you fee is divided,
therefore we did not without reafon infift upon it.
L. C. Jufi. You muft go on as you can, for they will put you upon it.
Mr. Att. Cjen. Swear Mr. Blathwayt.
Mr. Blathwayt Sworn.
Mr. Soil. Gen. Pray hand the writing to him.
The writing fliotvn to him,
Mr- Soil. Gen. Have you feen that writing formerly Sir ?
Mr. Blathwayt. Yes, Sir..
Mr. Soil. Gen. What did you hear my Lord Arch-Bilhop fay about that Paper ?
Mr. j4tt. Gen. And the reft of my Lords the Bifhops.
Mr. Soil. Gen. Firlt we'll ask as to my Lord Arch-Bilhop } did he own it to be
his Hand-writing?
Mr. Blathwayt. My Lord, I believe this to be the Paper , that my Lord Arch-
bifhop did own to be fubfcribcd by him.
Mr. Soil Gen. When was it owned by him ?
Mr. Blathwayt. On the Council day, the Eighth of this Month.
Mr. Soil. Gen. Where was it owned, becaufe we would obviate that Objection
of the County?
Mr. Blathwayt. It was at the Council Table at Whitehall.
Mr. Soil. Gen. What fay you to theBilhop of St. Afaph ? Did he own it ?
Mr. Blathwayt. Yes; All my Lords the Bifhops did own it?
Mr. Soil. Gen. Name them particularly } what fay you the Bifhop of Ely ?
Mr. Blathwayt. In the fame manner, my Lord.
Mr. Soil. Gen. The Bifhop of Chic hefter ?
Mr. Blathwayt. In the fame manner.
Mr. Soil. Gen. The Eilhop of Bath and Welh ?
Mr. Blathwayt. Yes, my Lord.
Mr. Soil. (jex. The Bifhop of Pet erborough ?
Mr. Blatbwayt. Yes, my Lord.
Mr. Soil. Gen. And the Bifhop of Briftol ?
Mr. Blathwayt. Yes, my Lord.
Mr. Sail. Gen. So ^ We have proved they all owned it.
S Mr. jHt. Hot-
Mr. Juj}. HoU'jttuy. GxiU not t!;is have been dene at firft, and fa\Ted all this
- trouble?
S:r R')b. S.<'ryrr. Have you done with Mr. BUtbvtyt, Mr. Attorney, that we may
ask him fome qucftions.
Air. An. Cat. A-.khiti whit you will.
//-. Ser. Pemb. Pray, Mr. £/.,//rr.ry, upon what occaflon did they own it , you
are Sworn to tell the whole (null ^ pray tcil a'.l your KnoA-Ldg •, and the whole
Conf ffion that they made.
Mr. Blathrvayt. My Lord, I am called here by a Subpoena to anfwcr on behalf of
the King ; my Lord, 1 amr-:ady tot'oe my duty, and 1 bcgof your Lord (hip that
•you would plcale to tell me what is my duty ; for whatf-evcr I fhali anfwir, 1 fhall
Jpeak the trutn h.
Air. Ser. Pemb. There is nothing defire I, but that you would fpcsk the truth.
Mr. Ll.i:lr.':.i)t. My Lor<J, laineallly guided by your Loidlhip wiiat I ou^ht to
aifwerto.
Z-. C. Jiift. Whit is it you ask hi:r», Broth :r I'enberton ?
A I--. Ser. Te '.[>. We ckliu Mr. Blxth-.vayt to till the whole difcourfe that pafled
at the Council, wh n ^tf IbjsmyLoWsth? Bifhops owned this Paper.
Air. Sail. Gen. That's a very pretty thing indeed.
L.C. Jttft. Look you, M . BUth-rayt, you muft anfwer them what they esk
you, unless it b" an enfnar'r gQ :cftion, and that the Court wii take careof.
Mr. SLithwayt. If your Loiulliipplcafe to ask me any Queilijn, I fhall rea lily
anfv/er ir.
L. C. Jitfl. You mud anfwcr theTi.
Mr. Ser. Pf»:b. We ask you upon what occ-fion they came toown their Hands?
What difcuurfe was rh"de to t'^em, and what they anf^ered ?
Mr. Blathwatt. My Lord, I b.'g your Lordiliip's diredions.
L. C. Jn/t. Come^tell it, Sir.
Mr filathirayt. My Lord, the occafion was this i This Paper was read in Coun-
cil, and I had t'ne honour to ie:;d it before the King, and it i.aving bee.i re.d be-
fore I is Grace the Arch-Bifhop,' and my Lo.dstheB':(hops, they were asked wh>
theydid own that Paper, and, my Lord, t'iey did own it.
Sir Rob. Sawyer. Mr. BUiio-.vayty was that the firft time that my Lords the Bi-
flrps came in ?
Mr. Bin',:a>iyt. Sir I was not asked that Cnieftion.
L. C.Jufl. What would ^ou have, Sir Robert Sawyer ?
Sir Rui>£>t Sawyer. We would have an account whatp^fTe.l at the Council.
L. C. Ju;r. Would you have all the Difcourfe betwixt ths Council and mj
Lords the Bilhops ?
Air. Ser. Ptmb. All that rel'tes to their Accufation, my Lord, their whole Cou-
feflion, iiiid what was faid to ti.em.
Mr. Att. Cm. Do you think, Mr. Serjeant, that when we call a Witnefs, you
are at liberty to examine him 10 every impertinent thing ?
Mr. Soli. Gen. My Lord, we defiie that they may only ask reafjnable and pro-
per Qiieltions.
Mr. Ser. Pemb. Mr. Sol'icitour he isfworn to anfwcr and tell the whole truth,
and that's all we ask of him.
Sir Knb Sawyer. Sir, I will ask you a plain Queftion upon7onr Oat11, di I not
my Lord Ardvbifliop, and the relt o: my Lords the Biihops, at firft refufe too.vn
it, or to anfwer w '.ether it were their Har.ds or not?-
Mr.Soll.Gen. That is not a fair Queftion Sii RcbcrcS<?ir)(r ; 'tis aleading Quefti-
on.
Mr. Ser. Pemb. Then I a(k you in fliort, what did they refufe? I am fuie tint
is a fair Queftion, for God forbid that any fliou'd hinder the King's Evtfe ice from
telling truth.
Sir ^b. Sawyer. And God forbid that half Evidence Should cor.de.nn any
man.
L. C. JH.JI-. God forbid the Truth fhould be concealed any wiy.
Mr. Ser. Pemb. Pr^y, Sir, when they were firft sskc ', whether th-t was
their Hands or not, what anfwer did they give ?
Mr. Bl*th:rayt. Sir, I have begged the favour of my Lcrds the Judges to tell
me what i am to anfwer, and what Qucftions are proper for me to anfwer to.
L. C!,.
L. Cb. )//;?. You muft anfwer any Queftions that sre not enfnaring Que-
ftioris.
5;> Robert Sarvyer. Mr. Blathivayt , you are upon your Oath to teftifie the
Truth.
Mr. Blathrvajt. Sir, I am not acquainted with the Methods of La#, I delire
my Lords the judges would inftrudt me.
Mr. 'in/I. Adibone. Anfwcr to the Queftion that they ask you.
Ld. Ch. Jujl. \Ve obferve what they ask you ; we'll take care thit they ask
you nothing butwlm they fhould.
Mr. Blaihirayt. • I define the Queflion may be repeate 5.
Mr. S. Pembenon. .VVhen they were firft asked if it were their H:n Is, what
anfwer did they give the King ?
Mr. BUthrvayt. His Grace the Archbifhop, and my Lords the Biihops, at firft
did not immediately an Twer whether the Paper were theirs or no.
Mr. S. Pembenon. What did they fay ?
Mr. Bluhwayt. They faid they did humbly hope, if they were put to anfwer,
no advantage fhould be taken rgaiaft them.
Mr. S. Pembenon. What did they fay farther at that time concerning His
Majefties pleafure ?
Mf. So//. Gen. That's a leading Queflion, Mr. S. Pemberton, you cannot leave
your way of leading Witnefles.
Mr. S. Pembenon. It is a very ftrange thing } if we ask a queflion that's ge-
neral, that's excepted to j if, we ask any queftion. in particular, then they fkd
fault with us, that ic is a leading Qu:ftion j fo that we can never ask a queftion
that will pleafe, them. Pray Mr. lilathwayt , what did they fay concerning the
King's pl-'afure, whether they would anfwer if the King commanded them ?
Mr. S- IrinAer. How can it be material what they laid ?
L. Cn. Jujl. It is material that it fhould be asked, and that it fhould be an-
fwered.
Mr. S. Levinz,. You are to tell the whole Truth, Sir, Pray tell us whit did
my Lords the Bifhops fay about fubmitting to the King's pleafure ? ^
Mr. Soil. dn. What is that to the purpofe ?
Mr. TolJixfen. Mr. Sollicitour, his Odth is to tell the truth, and the whole
truth, and therefore he muft anfwer my queftion.
Mr.S. Pimbenon. You are mighty loth, Mr. Sollicitour, to let us hear the
truth ; I would not willingly lead him in any thing, and 1 cannot fee that this is
any leading queftion, unlels his Oath be againft Law, whkh fays he is to tell the
whole truth.
Mr. At. Gen. My Lord, I do beg your Lordfhip's favour of a word in this
thing: It is certain, if they ask any thing that flwll take off the Evidence that
was firft given, that it is not true, I cannot oppofe it j but if they ask. qucflions
onely to enflame, and to poflefs people with ioolifh notions , and ftrange con-
ceits, that is not to the fad chat we are now trying- •
Sr. Rob. Sawyer. 'Tis onely to have the truth out that we doe it.
Mr. S. Pembenon. There is no body here that will be enflamed, Mr. Attor-
neyj I have asked a fair queftion, the Court has ruled it fo.
Mr.EUtkwAyt. I fhall readily anfwer any queftion that the Court thinks
fit.
Mr. S. Pembertcn. Sir, by the Oath you have taken you are to tell the whole
truth.
L. Ch. Juft. Is he to'teH you all that was done at the Council board that day ?
Mr. S. Pemberton. No , my Lord ^ onely what palled there about my Lords
the Bifhops Confelfion, the whole of that matter.
Mr. Blathwayt. There has been fo much faid between the asking of the que-
ftion and this time, that I defire it may be repeated, that I may know what to
anfwer to.
Mr. S. Pembmov. I ask you in fhort, Sir, What did my Lords the Bifhops fay
at the time of their appearing in Council concerning the King's plealure, whe-
ther they fhould anfwer or not ?
Mr. Slathrvayt. The firft time my Lords the Bifhops-came into the Council,
they were asked the queftion whether they did own that Papery they did imme-
diately anfwer, They humbly hoped, as they flood there Criminals, HisMajeftv
would
[68]
would not take advantage againft them, but however they would obey His Ma je-
tties Command.
Sir Rob: Sawyer. Were they commanded to withdraw ?
tx?/r. Bltthwayt. Yes, thereupon they were commanded to withdraw, which
they did.
Mr. S. Pemberton. When they came in again what queflions were asked them ?
Mr. BUthwayt. They came in feveral times, more than twice, 1 have reafon
to remark this,' that they did fo ; Do you mean the fecond time, Sir ?
Mr. S. Pemberton. Yes, Sir.
Mr. BUthrctayt. The fecond time they fcemed unwilling to-own the Paper.
Sir Rob. Sawyer. And what did they doe the third time.
Mr. S. Pemberton. But firft let us know what more. was done the fecond time.
Sir Geo. Treby. How was that unwillingnefs of theirs overcome ?
Mr. S. Ptmberton. When they expreft their unwillingnefs what did they fay
farther ?
Mr. BUthwayt. If I remember right, they faid as they did the firft time, they
humbly hoped His Majefty would not take advantage ag^inft them.
Mr. S. Pemberton. Then what did they fay the third time ?
Sr. Rob. Sawyer. Pray, were they asked whether they publifhed it ?
Mr. Blathwayt. As to the publiftung it, it was laid before them, and I think
they were asked the queftion whether they publifhed it?
Sir Rob. Sawyer. And what anfwer did they make ?
Mr. "BUthrvayt. I remember His Grace, and my Lords the Bilhops , did not
own they had publifhed it, but they denied it.
Sir Geo. Treby. After they difcovered their unwillingnefs the fecond time,'
what followed next ?
Mr. Blathwayt. They did withdraw after the fecond Attendence.
Mr. S. Levins. But what was faid to them ? Was that all that was faid to
them the fecond time ?
Mr. Blathwayt. I have faid two things already, that they were unwilling to
anfwer, arid that they denied the publifhing.
L. Ch. Juft. This is ftrange ufage of a Witnefs, to put him to tell every thing
that was faid.
Mr. S. Pfmberton. I would ask you this queftion, Sir, When they came in the
fecond time, whether they did defire to know if it were His Majefties Command
that they fhould own it?
L. Ch. Juft. That I muft not permit you to ask, Brother, that is to lead the
Witnefs.
Mr. S. Pemberton. My Lord, he will not anfwer general queftions; I have
asked him all along general queftions, and I cannot get an anfwer from him to
them.
Mr. Blatbwayt. I am ready to anfwer any qneftions that the Court thinks I ftiould
anfwer ; I am not backward to anfwer according to my duty.
L. Ch. Jnjl. Let one of you ask a queftion at a time, and not chop in one up-
on another.
Mr. Soil. Gen. In all the Tryalls that ever I have been in, in all the Cafes of
Criminals, the King's Witneffes ufed to be treated with refpect, and not to be
fallen upon in this manner.
L. Ch. Jitft. He fhall be fure-to have all refpect paid him.
Mr. Soil. Gen. He is in Office under the King.
Mr. S. Pemberton. I do not think Mr. Blathwayt does believe I would fhcw
him any difrefpeft, more than he would fliew me.
Mr. At. Gen. I beg one word, my Lord.
L. Ch.Jufl. Mr. Attorney, What do you fay ?
Mr. Att. Cjen. My Lord, 1 fay I do oppofethe asking of this queftion, not but
that every man has a right to crofs examine a Witnefs, but if they ask fuch a que-
ftion, let them tell us what ufe they would make of it.
L. Ch. jufl. Mr. Attorney General, for that matter —
Mr. S.Pembcrton. My Lord, if you pleafe I'll give Mr. Attorney an anfwer.
L.Ch.Juft. Brother' Pemberton, I was fpeaking to Mr. Attorney, and pray
hear me, I will not ask you what ufe you'll make of the queftion you ask, bucdo
you ask fair and regular queftions, and I'll take care you fhall have an anfwer
to them. Mr. S. Pen-
[69]
Mr. Serj. Pe.-nbcnan. I will deal plainly with the Court, and tell you what
ufe we intend to make of our queftion ; if they ani'wered under a Promife from
His Majefty, that it- mould not be given in Evidence againft them, I hope they
lhall not take advantage of it.
Mr. Soil. Gen. I fay that is a very unmannetly queftion, but however it fhall
be anfvvered.
Mr. Serj. Pemlenon. Why fo, Mr. Sollicitonr?
Mr. Soil. Gen. My Lord, it is to put foinething upon the King which I dare
hardly name.
L. C. Jttft. We do not know what Anfwer will be made to it yet, but it does
look like an odd kind of queftion.
Mr. Soil. Gen. If men will be fo preffing, I , for the King, defire the queftion
may be entred.
Sir R. Sawyer. What do you mean, Mr. Sollicitour f
Mr. Soil. Gen. I know very well what I mean, Sir :, I defire the qudlion may
bs recorded in Court.
Mr. Serj. Pemberton. Record what you will, I am not afraid of you, Mr. Sol-
licitour.
Mr. Soil. Gen. Are you afraid of the Law ?
Mr. Serj. Pemberton. No, nor of you neither.
L. C. Juft. Pray be quiet, Gentlemen.
Mr. An. Gen. Pray, Mr. Blathvayt^ anfwer whether there was any prom ife
made to my Lords the Bifhops from the King.
Mr. Blathwayt. My Lord, 1 take the queftion to be, whether the King was
pleafed to make my Lords the Bifhops any promife of not taking advantage of
what anfwer they m»de.
Mr. An. Gen. That is the queftion.
Mr. Blathwayt. As that queltion is ftated there was no fuch made.
L. C. Juft. Look you, he tells you there was no fuch promife made; there is
an Anfwer to your Qjieftion, brother.
Mr. Sa-j. Levins We made no fuch queftion ; but the queftion I would ask is
this, <• •
Mr. Sail. Gen. For the fatisfaftion of the Court repeat what you faid juft now,
Mr. Blathwayt.
Mr. Blathwayt. I take the queftion to be, whether the King made any promife
to my Lords the Bifhops, that no advantage fliould be taken of what they faid,
and I fay the King made no fiich promife.
Mr. Serj. Pemberton. We did not ask you the queftion , buC we only told you
what ufe we would have made of another queftion.
Mr. Pollixfen. Mr. Blatbwayt, I fee you can very well diftinguifh what quefti-
ons are to be anfwered j I ask you in fhort upon your Oath, When they were firft
called in, what was faid to them, and what was anfwered by them ?
L. C.Jnfl. Here has been a great deal of wrangling, but this is a fair queftion,
and may reduce us to order again j tell us over again from the beginning what
paffed when my Noble Lords the Bifhops came in the firil, fecond, and third time,
when they were examined about tlrs Paper /
Mr. Blatkvayt. My Lord, I fhall comply with your Lordfhip's Directions,.!
apprehend I am to anfwer together concerning the firft, fecond, and third co-
mings in of my Lords the Bifhops into the Council. The firft time, (as I faid be-
fore,; my Lords the Bifhops were unwilling to own the Paper, and did fay they
humbly hoped His Majefty would not take advantage againft them, but that they
were ready to obey his Command. The fecond time they were called in they did
repeat it again, that they hoped His Majefty would not take advantage againft
them ; after that there was mention made of the Paper being publifhed , 1 re-
member my Lords the Bifhops faid they had not publifhed it.
Sir R. Sawyer. Is that all ?
Mr. Att. Gen. You have no mind to hear all, I think.
L.f. Juft. How do you expeft to be anfwered your queftions, if you interrupt
them? Goon, Mr. 'Blathrvayt.
Mr. Blathrvayt. Sir, I faid laft, that they having prayed the King that no ad-
vantage might be taken againft them for what they fhould fay, there was mention
made of the Paper its being publifhed, and my Lords the Bifhops did fay they had
T not
not publifoed it ; and His Grace my Lord Archbifhop Paid it \ras written wiili his
own Hand, and that he had not made ufe of his Clerk.
Sir. R. Savytr. Is that all you can remember that pafled at that time ?
Mr. Blathwayt. This is the fubftance of what I remember.
L. C. Jitft. Was this the third time ?
Mr. Rlatkwayt. No ; that was the fccond time, my Lord.
Mr. Tollixftn. If there be not fome order in this Evidence, my Lord, we fhall
hot be able to obferve any thing upon if. • Pray what was done afterwards ?
Mr. "Elatbrvqt. My Lord Chancellors, upon their coming in, did require therri
to cnfwer whether they did own that Paper or not} my Lords tJhe Bilhops did
own the Paper.
Mr. Tollixftn. Do you remember in what words or expreffions (as near as you
can) they did own it?
Mr. Soil. Gen. Is this a practice to be endured ?
Mr. Finch. Why, he may apprehend and take that to be an owning of it which
was nor.
Mr. Soil. Cjcn. Has not he fvvorn the manner of it , and almoft the very
words ?
Mr. Ser j. Levinz.. We defire nothing of him but that he will tell us what words
they faid when they owned it.
Mr. Blathnayt. It was the third time that they came in, that they owned it.
Mr. Serj. Pemberton. Why, what did they fay ?
Mr. BUthroayt. My Lord Chancellour required them to anfwer, whether they
owned the Paper or no.
Mr. Serj. Ptmberton. What did they fay then ?
Mr. Blttbwayt. As near as I can remember, His Grace and my Lords the Bi-
ftiops did own the Paper.
Mr. Serj. Pemberton. What words did they own it in ? tell the manner of it.
Mr. Soil. Gen. What's this to the purpofe ?
Mr. Finch. Mr. Blathwayt, Did you take notes of what pafled there ?
Mr. "Bluthvtyt. I anfwer, Sir, I did not take notes, for I attended the King st
his Elbow, and did not take notes ^ Mr. Finch, you know the manner of the Coun-
cil in fuch cafes very well.
Mr. At. Gen. Then we ask you for the King, becaufe they fhall not enflamc
People by fuch an expreffion, In what words did they own if, if you can remem-
ber ?
Mr. Blathwtyt. Sir, I have declared my memory as well as I can ; when the
other Clerks come to be examined, if they can tell any more, let them.
Mr. Soil. Gen. But we will have no Difcourfe to enframe the World ; Did the
King promife or declare that no advantage mould be taken of their confeffion ?
L. ch. Jufi. I would ask .him that queftion, What was the manner that my
Lord Chancellour exprcft himfelf in to them, when they came in the third time ?
Mr Blathrvayt. Aflbon as my Lord Chancellour had required them to declare
whether they owned that Paper, as well as I remember, . His Grace took the Paper
in his hand, and it was handed over, or mewed, to my Lords the
'Holding it forth Bifhops, and they owned and declared fo, juft as if they ihould
to the Court. lay it before the Court, juft fo: I do not recoiled my felf of all
the circumftances that pafTed, I only can tell you the fubftance.
Mr. Soil. Gen. He does not remember what they faid particularly.
Mr. An . Gen. Mr. Sollicitour, I know well enough what they mean by the que^
ftion :, I know they would fain poflefs the World with a belief that there was fuch
a promife made them, and yet they are profecuted notwithftaiiding that promife ;,
therefore I do ask you, Mr. BUithwtyt, and for the King's Honour I muft ask it,
Did the King make any Promife or Declaration, that no advantage ihould be ta-
ken, or ufe made of it.
Mr. Blathwayt. The King did not make any Promife or Declaration that no
advantage fliould be taken, or ufe made of it.
Mr. Soil. Gen. He only put them upon it, whether they did own it or not.
Mr. Att\ Gen. I ask you i:pon your Oath, Did my Lord Archbilhop own it to
be his Hand-writing ?
Mr. BUthrcayt. Yes he did, and faid he writ it with his own Hand, and would
not let his Clerk write it,
Mr. Att.
Mr. An.G-en. Did he own the whole to be his Hand- Writing, or not?
Mr. ElathvcAyt. Yes, he did.
, Mr. Att. Gen. Did every one of the Bifhops own their names fubfcribcd to
it/
Mr. Slathwayt. Yes.
Mr. Soli.Gen. Then, my Lord, we pray now that ft may be read.
L. C. Juft. I fuppofe now they will be content it fhould be read.
Mr. Finch. If your Lordfhip pleafe to favour me one word, I think it cannot
yet be read, and my Objection is this :
L. c. Juft. I thought you had made all your Objections before, as to the rea-
ding of it.
Mr. Finch. Pray, my Lord, fpare us : Here are two parts of this Information •
the one is for confulting and confpiring to diminifh the King's Royal Prerogative,
and for that end they did make and write a feditious Libell; the other part is,
that they did publilh this feditious Libell : We are hitherto upon the full part,
the making and writing of it ; both parts are local ; untill they have proved the
making and writing of it to have been in Middlefex, it is not Evidence upon this
Information.
Mr. Soil. (jen. We have proved it written and publifhed in Middlesex.
Mr. Serj. Pcmh The contrivance and writing of a Libell is in itfelf penal, and
they may be punifhed for ir, if they be found guilty : Now if they cculd give an
undeniable Evidence concerning the publiihing of it, that is nothing to this pointy
but if they mould not give fuch Evidence, or any Evidence at all of the publics-,
tion, yet if it be proved that it was written and contrived by them, they would be
guilty for fo much, if it be a Libell, and this we fay is local as well as all the reft y
and therefore we infill upon it, that the writing and contriving mull as well be
proved to be in Middlesex, as the publication, for all is local.
L. C. Juft. There is no publishing yet proved.
Mr. Serj. Levinz.. It is true, my Lord, here is nothing of a Publication yet,
(with your Lordlhip's favour,) for their Anfwer to His Majefty in Council was, that
they did not publifh it -, all that is faid yet, is, that they owned the Paper to be
their hands : My Lord, does the owning of that own that it was written in the.
County of Middle fix ? or that it was contrived or made there ? No furely, upon
this Evidence the place is clearly at large: My Lord4.,this might have been done
in the County of Surrey^ or Somcrfct, or any other County : Their Information is,
that they did confult and contrive to diminifh the King's Prerogative at Weftmin-
fter in the County of Middlefex, and there they did write, and caufe to be written,
this Libell, and there they did publifh it ^ fuppofe it mould be granted that it i3
proved that this is the Archbifhop's Hand-writing, and thefe sre their Names IQ
it, is there anyone Evidence that any thing of this was done in tJUiddlefex ?
and, my Lord, that is the thing they are to prove. .
Mr. Sommers. If your Lordfhip pleafe, all matters of Crime are fo local, that
if it be not proved to be done in the County where it is laid, the party accufed is
as innocent, as if he never had done the thing \ and, with fubmiflion, it is the
vsry point of the Information \ that it be proved they arc guilty of the Fad in the
place where it is laid to be done.
L. C. Juft. This is the fame thing over and over again •, but I am content to hear
you, Mr. Sommcrs^ at any time j I have told you my opinion about reading of the
Paper already, if you'll have it again you may.
Mr. Pollixfen. Pray, good my Lord, fpare us, before it be read;
Mr. Jitft. HoUoroay. Mr. PoUixfen^ you have riot yet h-d the Directions of the
Court tor the reading of it.
Mr. Att. Gen. My Lord, when this Paper is read, which we pray it may be,
we will'anfwer their Objections, but at prefent we fay, they are out of time.
Mr. Pollixfen. Good Lord, what a (ifange thing is this! We object againfc
the reading of it, and you'll anfwcr us after it is read.
Mr. Soli.Gen. Certainly, my Lord, we have done enough to prove that this
is a piper owned by them in the County of Middle fex, and we pray it may be read;
L. Ch. Juft. Truly I am of the fame nsind I was before, that ic is too foon to
make the Objection, and that the Paper ought to be read.
Mr. Soil. Gtn. We fubmit to yourRiU •.
Mr; PoUixfen. If it be the Will of the Court, I have nothing to fjy.
Mr. y*/f.
[7*]
Mr. Jufr. Pomll. My Lord, The Contrivance and Publication are both matters
of .1 upon Illue joined the Jurors are Judges of the F«ft, as it is laid in the
1 I'.tin i .r •, but how can they bs Judges ot a matter of F.-.d clone in another
Cou t) f ai.d it mutt be prefumcd, in favour of Innocence, not to be done in this
Ccuntv, but in ar.o her, except they prove ir.
Mr. Att. Gen. We are not yet ripe for arguing that point.
Mr. Soil. Cen. We are fpcrkirgorly to the Court row for the reading of this
Paper, and the Jury are rot Judges of that , wrntber the Pnptr ought to be read
or no i that is nurely a matter of Law, and under the direction of the Court ; and
therefore I pray, fince it is now in your Lordihip's Judgment, whether that Paper,
Ihould be read, that you would pleafe to order it to be re
L.C.Jnft. lean only give you my own opinion, let my Brothers give theirs.
Mr. Jufl. Holloway. There is no body againft rhe reading of it, my Lord ; 1 fup-
p <e my Brother Powell is not againft its being read.
M . Jujl. Powell. But they fay the King's Connfel mufl make it out firft, that
the writing of it, and the confpiring about it was in the County of tJWiddf. or
there can rv no judgment, fo much as tc read ir.
Mr.Pol'ixfea. My Lord, If the Objection be laved to u«, we fliall not fo much
oppofe the reading it, only we would not be furprized in point of time.
Mi . Jift. Powell. Nay, if they confcnt to the reading, we have no reafon to
hinder it.
L. C. Juft. Brother, I bslievc they know well enough what they have to fry
foi thf-ir Clients ; let the Paper be read.
Clc; k re :ds : The Humble Petition of William jtrcbbifhop of Canterbury
Si- A'. Satwyer. Read the whole Petition ; Pray, rny Lord, that the whole may
rea«.l. Read the Top firft, Sir ; to whom it was directed.
L*. C. Juft. Read the whole. Clerk, reads :
To the King's Mofl Excellent Majefty.
The Humlle Petition of William Archbifiop of Canterbury , and of divers
of the Suffragan Bijhops of that Province, noiv prefent with him, in behalf
of the mfelves and others, of their alfent Brethren, and of the Clergy of their
refpeflive Diocefes,
I-fumlly Jheiveth ;
THat the great averfnefs they find in themfelves to the diftriburing and publi/h-
ing in ill their Crmrches your M ijefties bte Declaration for Liberty of Con-
ference, pioc^e>1eth neither from any want of Daty and Obedience to your Maje-
fty, (our noly Motrttr, the Church cf England, being both in her Principles and in
her co .ftart practice unquestionably loyal ^ and having (to her great Honour) been
m re t -an o.ice publickly aik.iowledged to be fo by your GratiousMajefty,) nor yet
In many '\anrof flue tenders (s to Diflentfrs, in relation to whom they are willing
TO c •UK to iuch a Temper as fh .11 be thought fit, when that matter fhali be confi-
de el ana fttt.kd in Pailiament and Convocation •, tut amongft many other con-
fi ' :a*i ns, from this elp'-cially, becaufe that Declaration is founded upon fuch a
Dif,K''Cir>_ j w- r, *s h.'th been often declared illegal in Parliament, and parti-
cularly in the Years 1662, and 1672, and in the beginning of your Maj:flics Reign ^
and is a matter of fo grtat moment and confcqncnce to the wl.ole Nation, both in
Church and State, that your Petitioners cannot in Prudence, Honour, or Confci-
ence, fo far make themfelves parties to it, as the Diitribution of it all over the
Nation, and the folemn Publication of it once and again , even in God's Houfe ,
r.nd in r^e tine of his Divine Service, muft amount to, in common and reafonable
Conftruftion :
Your Petitioners therefore mod humbly and eatneflly befeech
your M ijcfty, that You will be gratioully pleated not to infill upon
their Distributing and Reading your Majefties faid Declaration :
And Your Petitioners (as in duty bound) fliall ever pray, tfc.
Mr.
Mr. An. Gen. My Lord, we mall leave our Evidence here, .and hear what they
can objed; to it. . .
Mr- finch. Have you no farther Evidence, Mr. Attorney ?
• Mr. Att. Gen. We leave it here for the prefent.
Mr. Sol. t/fw.The Gentlemen of the Jury defire to fee the Petition,
L. Ch. Juft. Shew it them.
( The Petition vceu fljewn to the Jury.}
Mr. Finch. But will you give no farther Evidence, Mr. 'Attorney ?
Mr. Att. Gen. I tell you we'll leave it here, till we fee what you fay to it.
Mr. Pinch. There is nothing that we fhould fay any thing to.
Mr. Att. Gen. Make your Advantage of it ; if it be nothing, we can have no^
thing.
L. C. Juft. What fay you for the Defendents, Gentlemen.
Mr. Finch. My Lord, in fliort, we fay that hitherto they have totally failed, for
they have not proved any Faft done by us in Afiddlefex, nor have they proved any
Publication at all.
Sir Robert Sawyer. They have given no Evidence of any thing. ,
L. C. Jnft. Pray Gentlemen fpeak One at once, and then we (hall underflaud the
better what we hear.
Sir R. Sawyer. My Lord,. We fay, they have given no Evidence of the Confpi
ring, Writing, or'Pulibfhing in Middlesex •, Nay, as to the Publication, there is
none at all proved.
Mr. Finch. Here is no proof of any Publication, nor of the writing or making
in ^^ddlefex ; fo that there is no proof at all againfb my Lords, the Biihops ,
L. C. Jufl. You heard what Mr. Blathwayt faid, they owned it in Middlesex.
Mr', finch. That is not a Publication fure, or any Evidence where it was done.
Mr. Serj. Levins., Suppofe, my Lord, that I own in Middle-fa that I robb'd a
man in Yorkfiirey will that make me guilty in Middlesex ?
Mr. Sol. Gen. But if you had ftole a Horfe in Yorhjhire, and had that Horfe in
Middhftx, and owned it, I doubt it would go hard with you in tJMiddlcfex ?
Mr.Sol.Gen. Mr. Serjeant thinks he has put a very home Comparifon,but we fhall
(hew how little fignificant it is by and by.
Mr. Serj. Ltvinz.. My Lord, in the firft place we infifb upon it 5 here is no proof
in this Cafe at all, as to the doing of any Facl at all in the County of Middlesex -,
In the next place, this. Information and Petition do not agree •, for they have
brought an Information, and fet forth, That my Lords the Bifhops under pretence
of a Petition did make a Libel, and they have fet forth no Petition at all, all the
Petitionary part is omitted : If I will take part of a man's words , and noc
the whole, and make a Libel, of that part, certainly that is very difingenuous and
injurious •, For.that part that I omit may alter the Senfe of the whole. They here
ought to fet forth the Petition, with the Direftion to the King, and the Prayer
at the end, whereby it will appear what the whole is, and what was defired by
their Petition. But, my Lord, to make this matter a little more clear, whatfoever
they fay of its being my Lord Archbifhop's Hand, we fhall prove that if it were
fo, it could not be done in Middlesex ; for we fhall prove that my Lord of Can-
terbury had not been in Middlcfex for three or four Months before.
Sir Robert Sawyer. Pray let the Information be read, then you will the fee
variance.
Mr. Att. Gen. There is not the latter part ( we acknowledge ) in the Infor-
mation.
Mr. Sol. Gen. There may be, and is, a fa Continetur, and there is no Objection in
that at all.
L.C. Ju/t. It hficContinetitr, and that's .
Sir Rtb. Sawyer. The truth of it is, this Information has made a very deformed
thing of it, has left it neither Head nor Tail ; they ftyle it a Petition, but it is
without any Direttion to any body, and without any Traytr for any/ thing ; and
without thofe two it cannot be told what it is.
Mr. Jnjl. AUybonc. Sir Rob. Sawyer, if I miftake not, it is faid only under pre-
tence of a Petition.
Sir Rob. S*wy:r. There may be more in the Paper, than in the Information, and
if all were in, one part might explain another.
Mr. Sol. Gen. So there may be more ; and I wonder to hear that Objection from
U Sir
I 7'
Sit Robert Sawyer, who has exhibited fo many Informations for Libells in picc:5
taken out of Books.
Mr. Recorder. All that we alledge in the information is contained in die Pa-
per, and that's enough for our purpofe; we arc not bound to recite the whole.
L. Ch. Jujt. Indeed I think it is no material Objection at all.
Mr. Serj. Pemberton. Truly I think it is very material in this C?fe; here's a Pe-
tition that is preferred to his Majefty \ tak« the whole Petition together, and, fay
they, it is a reafonable Pqdtion -, chop off the Direction and the Prayer, and then
here's nothing but the body of a Petition, without beginning or ending ; or if a
man will fay any thing concerning the King, and doe it by way of Petition to him-
felf, that will alter the Cafe mightily, from a Paper fpread about, that Ihoulj
contain only the body of a Petition, and nothing elfe.
Sir Rob, Sawyer. Pray rend that part of the Information,
Mr. ToSixfen. if fo be there be an Information, and that Information charges a
man with a pretended Petition, and the Evidence comes and proves a Petition
l^oth top arjd bottom, tint is not the Petition in the Information ; for that lack-
ing the proper parts of a Petition, is called a pretended Petition, but that wliich
is proved, is a real one.
Strj. Baldock: My Lord, there is nothing in this Obje&ion, as this Record
hath it.
Mr. Att. Cm. Pray, my ; Lord, give us leave to ftate it on our fide, as they
have done on theirs, and it will be the better underilood upon the reading: I
hope it is not come to that pafs that they would have it , lure thefe Gentlemen
have not forgot altogether the practice that has been fo frequent in this Court \
if there be an Information for a Libell, Is there any thing more frequent, than
only to recite the material part ? Sure they may fay in fuch a Libell is contained
fa and fo, without fating forth the whole Book.
Mr. Sol. Cjen. How manyTryalls have we had here, wherein there has been only
aClaufe taken out of a Book-, as particularly, Baxter's Bible, and John fix $ Book?;
and all by virtue of afic continetur,
Mr. Finch. That comes not up to our Objection here.
Mr. Jiift. Powell. Let us hear the Record read,, and then we can judge of it.'
Sir Rob. Sawyer. We pray, Sir, the Information may be re?d.
Mr. Att. Cjea. We are here upon all Occafions chopp'd in upon, and I do not
know how they come to take this Liberty ; I am lure other people had it not Li
former times, when thefe Gentlemen flood where we do , as foon cs e.ver we
offer to fpeak, prefently there are two or three upon us.
L. Ch. Juft. Let me hear them. Mr. Attorney, make their Objection, and let the
Record be read, and that will anfwer that Objection. ,
Mr. Att. Gen. My Lord, as for that other thing, they come and tell us, we have
f*t forth a Petition, we fay no fuch thing ; in the Information we fay, you com-
pofed a certain Libell, fretcnfa Petitions, in which are contained fuch and fuch
things •, and now I pray let it be read.
Mr. Sol. Gen. Pray, my Lord, hear me a little firft , Take the Information as
we have laid it, and I believe there are twenty Prefldeots that I could give you
ia an inftant of late days practice ; fo was the Information againft Mr. Baxter, fo
was the Information againft Mr. johnfon, fo was the Information againft Doctor
EaJes, and fo was the Information againft Sir Samuel Brsnardijlon : They are all
iu this foim,J?ccontinctur; fo that as for that matter, we are well enough. But
here's another thing ( fay they, ) You do not fet out the Petition -? we fay, it is
a Libell, and it is not the Naraewe rely on, but there is fuch a Libell, fo»we in
our Information call it; if it be not a Libell, then sre they very innocent; and
whether it be or no, is now in Judgment before your Lordfhip •, but if it be as we
fay, then it is not thefpcakiog ill things in the body of a Petition, and then gi-
ving ic a good Title, and in concluding it with a good Prayer at the end of it j
'tis r.ot, I fay, any of thefe that will iV/eeten this Crime, nor alter, nor alleviate
it at all ; if there be tlint which is Seditious and Libellous in the Body of it, call
the Paper what you will, and fmooth it with a Preamble, or a Condufion, that
will not make it any thing lefs a Libell •, thefe things are plain and manifeft : We
fry there is fuch a thing done, a Libell made, frctenfu Petitions, do you call it what
you will i but we fry, thefe and thefe things are a Libell upon the King and the
Government : We have proved oar Cafe, we have proved there was fuch a Paper
under
3
under their Hands, We have proved it was owned in MtJdlefex, and then we are
in your Judgment,whether this be not Evidence fufficient to convict the Defendents.
L. Cb. jHfr. But they do make an Objection about the Writing and Contriving
of it, that it is not proved to be \f\Mddlefcx.
Mr. Scrj. Trinder. My Lord, our Information does not go with a continued
Claufe, that they framed aLibsll, nt Jeqaitur in b&c vsrba, but we only fay, they
made a Libel! yretenfit Petitionis, and then we fay, In quo ejuidem Libello contimtur^ Jb
and fo^ we do not tie our fclves up to a particular Recital of all that's in the
Paper.
/,. Ch. JuJ}. Read the Record,
Clerk Reads :
Ipfl iidem Willielmus Archiepifcopus Cantuarienfis, ( and the reft ) diUt d<-
cimo ottavo die Maii, Anno Regni difli Domini Regis nitnc quarto ftipradittp vi C
armis, O't. afud Weftmonafterium frxdiElum in Comitatu Middlefexix, prtelitta il-
icite malitiofe feditiofe & fcandalofe quoddam falfum ficlum pernidofum <% fedi-
tiofum Libellum in fcriptis de eodem Domino Rege & Regali Declaratione & Qr-
dins predictis pretenfu Petitionis fabricarerunt compofuerunt & fcriplcrqnt <Sc fa-
bricari componi & fcribi caufaverun^ & cimdem falfum fiilum malttiofitm pernitio-
fum & feditiofam Libellum per ip/ot yr&dffios Willielmum Archiepifcopurn Cantuari-
enfem , (and the reft) manibut fas propriis refptElive JubfcriptHm die ann? & IOCQ •
ultimo mentionatif in prasfentia didti Domini Regis nunc vi & armis, &c. pubjica-
verunt & publicari caufaverunt •, In CJM qnidtm fxlfo fitto walttiofo ptrnitiofo & fedi-.
tiofo LtbclZo continetur The humble Petition of, &c.
Mr. Serj. Levins It is quite another thing ^ that which is produced from that
\vhichisinthelnformation, by this leaving oat apart-, for here is the Prayer
omitted, and the Direction.
Mr. Sol. Gen. Then, my Lord, I think there is nothing in the Cifo, but this
mighty Objection of the County •, and, fays Mr. Serj. Levitiz., if my Country-mart
ConfcfTes in this County, that he ftolea Horfe in To>k^lnre, you fhall noc try liim in
London^ but in Torkfiire, becaufe by his own Confeflion the Fail: is in another County.
Mr. Serj. Levinz.. I did not put the Cafe fo.
Mr. Sol. Gen. But take the Fact of the Cafe ss it is here ^ my Lord, the Bimops
come in Middlesex and own this Paper, my Lord Archbi/hop owns it to be his
Writing, and the reft of the Bifhops own their Hands ; if tney had done as Mr.
Serjeants Torkihire.man did, and fsid, we own we did this, but it was in the
County of York* then it would have been like the Cafe that thefe Gentlemen put }
but here we are in a plain Cafe of another nature } my Lord A.rchbiihop comes
here in <JMiddlcfext aud owns that he writ the Paper, the other Bifhops they
ligned it -, now itdoss lie certainly in thdr knowledge where this was done, and
they fhould have declared then \ but they. have owned it as their Paper, and the
ligning and writing of it, which is enough for us.
Mr. Finch. I own this to be my Paper, therefore I writ k in the* County of
jMtdd'.efex ; Is that a Confequence, I am very glad they are no better at their
Inferences.
Mr. Sol. Gen. They have owned the thing in Middlefix, that we inflft upon, and
they have not owned it with any qualification ^ if they had faid, it was done in
another County, then you rnuft have taken it to be as they faid it ^ then if they
do not diftinguifh the place of the Fact, your Lordlhip can only take ic to be
where they owned it, it would be fuppofed to be done in that place, for when
they owned the F?ct, it will be fuppofed, if they do not fjy where it was done,
that it was done where they ownel it, becaufe the King cannot tell where it was
done ; but the Evidence comes cut of iheir own mouths,, they may give fatisfa-
dtion where it was done, for they know it j and till that be done, the Suppofl-
tion is againfl them, that it was done in the place where they owned ic ; and that
is a plain Cafe, wherefoever a man is to fpeak of his own F;xt. Indeed if I pub-
lilhthe Writing of another perfon which is Libellous, then there mult be a par-
ticular proof of the place, becaufe it is not my own Fact ; but if thofe Lords
publifh a Libell that they make themfelves, it is in their own knowledge, and ire
their own power to tell where it was done, becaufe it is their own Aft,and D^ed :
It is true, it" my Lords had publifiied a Paper that was contrived,, by. fome of their
Council, it had been fome Excufe, and they muft have only fufFcrcd for that
Publication in the place where it was dor.e i but they are h?re for Writing this
they
[743
they have owned in this County, and therefore it lies upon them to prove it done
elfewhere. There is another Objection, my Lord, made. That here is no Evidence
of a Publication } my Lord, I take it to be a Publication in it felf ; Is it poifible
for a man to write a Libell ? to fet his Name ? and part with it ? and ic coming
to the hands of the King , that this is not a Publication ? It is not their faying,
we did not publifh it, that will excufe them ; for can there be a greater Publication
in it felf than this,when men have fet their Hands to ic, and owned their Names ?
what makes the Fact in this Cafe > If a Deed be denied to befattum of fuch a one,
what is the proof of it, but fettingthe Hand and Seal, and the Delivery ? There
is owning the Paper, and fetting their Hands is a Publication in it felf, and there-
fore they cannot make any fuch Objection. My Lord, if there were occafion, we
have Authorities enough to this purpofe, and we will give them fcope enough
if they will argue this matter ; and it they have any Evidence, we defire ro hear
what they can lay to it.
Mr. At. Gen. As for this matter of Fact, my Lord, if I take it right, they do
not Controvert the Publifhing, but ( fay they ) pray make it out, where it wa*
written or compofed ; I confefs this would be a bufincfs worth the while, for all
perfons that act in this manner, and are concerned in making of Libels, to un-
derfland for their advantage, no man doubts in the matter of Treafon, but it is
local i then put the Cafe a man is found in Middle/ex with a treafonable Paper in
his Pocket, I do not make a Comparifon, as if this w?.s fuch a Paper, I hope I am
not fo underftood, but I only put it as a Cafe, and that the Law is fo, is beyond all
Controverfie ; then the man is indicted here in Middf. for framing and compo-
Cng fuch a Treafonable Libel), and he comes to be tryed, and ( fays he ) Pray
prove where I made and compofed it, for though you found it in my Pocket, in
tbe County of Middf. yet I might doe it ia the County of York., upon my
word , this had been a very good Defence for Mr. Sidney, who was indicted, con,
victed, and attainted, for making a Treafonable Paper which was found in his
Study , might not he have put the fame Objection ? might not Mr. Sidney have
faid ( it was great pity he did not underftand it ) pray prove where I did it, for
/ did it elfewhere. than in this County. —
Mr. Sol. Gin. He did fay it, / remember.
Mr. Att. Gen. Truly, my Lord, / would not hear any Anfwer given to this,
for it would make the King in a very woful Cafe ; Here is a Paper that is found
in ,the County of Middf. and this is there owned by you to be written and
fubfcribed by you -, pray do you prove it, that it was written elfewhere.
Mr. Serj. Pemb. My Lord, we will doe it, we will be governed by Mr. Attorney
for once.
Mr. Serj.Levinz.. We will prove that my Lord Archbifhop was not in Middle-
/MT, in feven Months before ; and truly / think Mr. Attorney's Cafe of a Paper
found about a man, or in his Cuftody, will not come up to our Cafe j for was this
Paper found about us, furely that is not pretended.
Mr. Serj. *Pemb. Your Lordlhip fees by the very frame of the Petition, that this
Petition which they .call a Libell, was made after the King's Order concerning rea-
ding this Declaration : Now we fhall prove that my Lord Archbifhop, whofe
hand-writing they prove this to be, was not out from Lambeth-tiouie in two
Months before, nor till he was before the Council.
Sr. Rob. Sawyer. Which was long after that time when it was made.
Mr. Serj. Pemb. So that this cannot be written in the County of Middlefex.
• Call Francis Nicholls. Mr. Nicholls was fworn.
Sir R. Sawyer. Do you remember the 1 8th of May laft ?
Mr. NichoBs. Yes, Sir.
Sir R. Sawyer. Pray how was it with my Lord Archbifhop of Canterbury at that
time,'and before that, did he go abroad ?
Mr. NichoUt. My Lord, I am very fure that my Lord his Grace of Cant, whom
I have ferved in his Bed-Chamber this feven years, never ftirred out of the Gate
of Lambeth-Honk fince Michaelmas laft.
Sir R. Sawyer. Till when, Mr. Nicholls ?
Mr. Nicholls. Not till the time he was fummoned before the CounoiH.
Mr. Serj. Pemb. Now I hope we have given them a full proof that it could not
bs in Middle f. *. _,. -Call Thomas Smith.
. Mr. Smith was not examined.
Mr. Finch
( 75 )
Mr. Finch. Truly, my Lord, I think that what we have pfoved or what Proof
we further offer of my Lord of Canterburies not being in Middle [ex for fo long a
time, is ex abundantly and we need it not j for with humble fubmiffion, in point
of Law, it is incumbent upon them that are to prove the Charge in the Infor-
mation , to prove where it was done; becaufe, the Locality of it is part
of the thing, they ought to prove it ; in it's nature it is local, there is a
Place afligned in the Information , and unlefs they prove it was done in the
Place that they have laid, they have not proved the Charge in the Informati-
on. Now, my Lord, they have not made any Proof of that, and for proof of Pub-
lication, 1 think they have offered none to your Lordfhip, they never did call it
fo yet, and truly I never did hear or know that the owning of their Hands at the
Council- Table was a Publication of a Libel ; it is owning the Writing, but it is not
an owning where the Writing was made ; but where it was written, and where
it was made, is of neceffity to be proved ; before the Charge upon a Record, in- a
Court of Juftice, can be faid to be made out, it is a Local Charge, and in Ju-
itice, the locality mufb be proved , or the Information fails j my Lord, they
have offered no Proof to it , and they have not yet gone to the fecond pare
of the Information, for as to the Publication of it, there is not a tittle of Proof
offered, but only the owning of their Hands upon their Examination at the Council*
and no Man did ever yet think that the anfwering a Queftion, and owning a
Paper at the Council-Table, upon aQueftion put by the King himfelf was a Publica-
tion of a Libel.
Mr. Serjeant Baldock- Pray, my Lord, hear me a Word to that ; Though the
thing be never fo local, yet there mult be fome place where a thing that was
done, was done: Then if nothing elfe appears, but what was done in Wefl-
minfter, in the County of Middlefex, unlefs they mew the contrary, that muft be
the very place where it was done.
Mr. Solicitor General. Here is a great deal of Prevarication in this matter, and
I would obferve to your Lordfhip how they do ufe the Court ill in it ; pray, my
Lord, What is it we are upon? we are proving that thefe feven Lords, the Bi-
fliops figned this Paper j and I think we have proved it fufficiently out of their own
Mouths : But ( fay they ) it was not figned in the County of Middlefcx-, but in the
County of Surrey. All this is but Imagination, and they would have the Court to
imagine it too ; For how do they prove it? They would have your Lordfliip and the
Jury believe, That it was figned elfewhere, becaufe my Lord Archbifhop has not
been out of his Houfe in fome Months before; it is all but Inference, and Argu-
ment, and Imagination. Butftill, Gentlemen, doyouanfwer what I objected to
you ? Does it not lie in their Power to fhew where it was-figned ? Here are fix more,
befides theArchbi(hop,where was it figned by them?Here are fix of theBilhops,that ic
does not appear where they figned it j but theyconfcfsat White- Hall, in Middle fix,
that they did fet their Hands —
Mr. Serjeant Levins. Ay, they did fo, and what then ?
Mr. Solicit or General. Ay, and ay too j if they did fo, the Prefumption and Com-
mon Intendment upon fuch Evidence is, That is was done in the Place where it was
owned , and the rather, for that Reafon that I faid before, That it lies in their
Knowledge, and therefore it is incumbent upon them to prove, That it was not in
the County of Middlesex : So that this Objection I take rather to be an Invention
of the Counfel than the Truth of the Faft, becaufe they that can make this ouc, do
not. And as to what they fay of my Lord Archbilhop, That he has not been out of
Doors for fo long, who can prove fiich a thing ? Certainly my Lord was able to
come, for any thing that appears ; he has been here twice, and he was able to
come to the Council-Board : But when all is done, my Lord Archbifhop is certain-
ly able to put this matter out of doubt, for he may eafily prove it, if the Faft be fo,
and that will fatisfie the Court and every Body, That it was figned by him ac
Lambeth ; if he defigns to deal fincerely with your Lordfhip and the Court, and the
Jury ; but certainly it is not to be proved by a Circumftance, fuch a one as this
as, bat he ought to give your Lordfhip and the Jury Satisfaction about this Faft : He
ought to fay, Tis true, Ididfignit, but it was at Lambeth- Houfe ; that indeed
would be a down-right Stroke to as : But to go upon a Sappofition, That becaufe
my Lord Archbifhop was not out of his Houfe for fo long together, therefore they
are all not Guilty, is a very hard and foreign Inference. My Lord, there's another
Matter that they infill upon ; and that is about the Publication, that is as plain
X as
(
as any thing can be, that here is a full I'roofof a Publication, for if the Paper be
Libellous, where-ever that Paper is, that is a Publifhing, where-ever the Paper
travels, how far foevcr it goes, it is a Publication of it by thefe Perfons that
figned ft : I believe no body thinks that this fhould fly into the King's hand,
but fome body brought it to him ; and certainly, my Lord, if your Opinion fhould
be, that this Paper is Libellous, then where ever it is, it is a Publifhing, which
is our offence ; where-ever it is found, it is a Publication ; for there is the miftake
of thefe Gentlemen, they fancy, that unlefs there was a Publick Delivery of this
Paper abroad, nothing can be a Publication ; but I rely upon it, theyfetting their
Names to it, made it their Paper ; and where-ever it was afterwards found, that
did follow the Paper where-ever it went, and was a Publication of it ; it was in
their Power, being their own Contrivance ; it was made and formed by themfelves,
and no body will believe,when it was their own Hands that they put to it, that any
body elfe could have any power over it ; for ought appears,no body elfe was at work
about it, and when there were fo many Learned Prelates that had figned fuch a
Paper, no one can believe they would let it go out of their Hands, but by their
Confent and Direction : Is not this a Proof of the Publifhing ? Do they give your
Lordfhips any Evidence that they had ftifled this Paper? If they had fo done, they
had faid fomething, but will any body believe that this thing was done in vain ?
Can any body aflign a Reafon why fo folemn a thing as this fhould be done to no
end and purpofe ? Why a Paper fhould be framed that rails at the Kings two De-
clarations ? Why a Paper that gives Reafons why they could not read it in
their Churches, and figned with fuch Solemnity by all thefe Noble Lords, we ftb-
mit this to you in point of Law, and the Law is plain in it, that if this Paper be
Libellous, and it is found in the County o{MtMtfexy there is a Publication of that
Libel. I fhall mention to your Lordfhipthat Cafe of Williams, which is reported
in the Second Part of Roll's Reports, Mr. Finch made ufe of it in the Cafe of Sidney ;
It was the great Cafe relied upon, and that guided and governed that Cafe (as I
apprehend) from the Verdict and Judgment that was given in it. This Cafe was
1 5 Jacobi. It feems Williams was a Barrifter of the Imer-Templf, and it feems being
an high Catholick for Opinion and Judgment, he was expelled the Houfe, and he
being fo expelled (being a fort of afm«0/<0 wtotea Book called Baalam\ Afs,and
i herein he makes ufe of the Prophecy of the Prophet Daniel, and he makes Applica-
tion of it according to his own particular fancy. He writes there, That this World
\vasnearatan end; and he faid, Thofe ill days were come that that Prophecy had
Jpoken of, and becaufe of the Impurity of Prince, and Prieft, and People, and
ctlier things that happened, thofe were the worftof days, and therefore the laft;
and that certainly we had the worft Prince that ever was in the World, when he
•wrote this Book, what does he do ? He was a little more clofe than my Lords the
Bifhops, and pins it up, or feals it up, and it was brought to the King 5 and what
is this more than the Cafe before your Lordfhip ? They indeed fay, I dp this by way
of Advice to the King i fo,faid he,Ido this by way of Advice to the King, for God
forbid that any of this fhould happen to the King, and fo what he does was by way
of Advice, and he prayed God to avert it from him ; here was as good a Prayer as
there is in this Paper •, and there was a good defign, he made ufe of the Prophet
Daniel, and applied his words. Well, what was done upon it ? This was never
publifhed ; for the Queftion was before the Court, whether this Sealing of it up,
and not delivering it to any other body were a Publication,the Court was of Opinion,
that the very Writing of it was a Publication ; they did not value the delivery of it
to the Prince,but it was proved he Writ it,and that made it Treafon. My Lord,we
.have Cafes enough in my Lord Hobart for this Matter,Sir SaptisJ ffickis Cafe,and ray
Lady Hatton's Cafe,there was only a Letter fealcd up and delivered to the Party.
L.C.J. You need not trouble your felf about that Mr. Solicitor.
Mr. Sol. Gen. If the Cafe then be thus, I take it, it will turn upon this Fact ; they
have given your Lordfhip no Proof where this Paper was Signed by them ; here are
feven Perfons that had a hand in it, and here is only one Perfon whom they have in-
fifted to be infirm, and kept his Houfe for a great while together. We fay
the Publifhing follows the Libel where-ever it goes ; the Libel is in the County of
JMiddltftXi they have confeffed it in the County of Afiddlefex, and they did not
diflinguilh where it was done. Then if they will not dUtinguifh upon the Evi-
dence, no Man ought to diftinguifh, but ought to prefume it was done in that place
where they owned it.
- Atttr.
(77)
Mr. Attor. Gen. I did not apprehend we were got fo far, that they Oppofed u5
in the Publication.
Sir Rob. Sawyer. Yes we did, for you have given no Evidence of it.
Mr. Attor. Gen. Surely, my Lord, for that we fave give a fufficient Evidence9
and they have given fome Proof of it, as to my Lord Archbiihop } that becaufe he
had not been from Lambeth, therefore he did not publilh, nor could caufe it to be
publifhed ; for your Lordfhip fees by this Information, they are not only to anfwer
the Publicavit, but alfb the Publicari caufavit ; for do you doubt, Gentlemen, of the
Law in this Cafe, that if Icompofea Libel in Surrey, for Example, and fend a Per-
fbn over into Middle fext I am not Guilty of the Publishing ?
Sir Rob. Sawyer. That is not your Cafe, Mr. Attorney.
Mr. Finch. That were clear if it were fo, but it is not fo.
Mr. Attar. Gen. My Lord Archbifhop^s Cafe fignifies nothing, if we (hew it was
publifhed in Mtddlefex, and you give no Evidence to the contrary but it might be
there ; and I am fure as to the reft of my Lords the Bifiiops, there is no Evidence at
all given. Here is a Petition that we fay is a Libel, they it may be will make that a
Queftion ; this is delivered to the King's own Hand in the County of Middle fex&nA.
there are as many Cafes as any one Man can name, that this amounts to a Publica-
tion by the Party ; for if I fend a Letter by the Poft fealed, that no body can fee
but the Party himfelf, and he that writ it, it is adjudged over and over again, it is
a LibeJ.
Mr. Juftice Pom I. That you need not labour, Mr. Attorney, for that's the Cafe
of Williams of E/ex ; but how do you apply it to the Cafe now before us ?
Mr. Attor. Gen. That's an Anfwer to their Objection as to the Publication.'
Mr. Juftice Pornl. But what fay you to the firft part, you have not proved that
it was written in Middle [ex.
Mr. Attor. Gen. There is the Cafe of Barrow and Lewettin in Hobart, and likewife
the Cafe of Sir Baptift Hicks-, which is reported both in Hobart and in Popbam ; and
in Pcpham, towards the end of the Cafe, there is a remarkable Paffage. Says that
Cafe.t If it mould not be punifhable at the Suit of the King, there would be no Re-
medy j for the Party cannot bring an Aftion, becaufe he can be no Witnefs for him-
felf, and it is only known betwixt them two j but a Witnefs for the King he may
be, to prove his own Receipt of the Letter, and the Party's Hand .
Mr. Juftice Pavel. You need not labour that Point, I'll tell you, Mr. Attorney j
for the Law is very clear in that Point, I think, if you bring it home to your Cafe.
Mr. Att or. Gen. Then here's the Cafe in fhort, my Lord \ That my Lords the
Bilhops havecaufed to be made and written this Petition, they are made Parties
to it by fettingtheir Names, and this is a continued Aft j whatfoever is written
there is my Lord Archbifhop1s Writing, where-ever it goes, as Ml put you a Cafe
that's very well known. If I take away Goods from a Man in the County of Cumber-
land, and I am found with them in the County of Middlesex, it is a continued Aft,
and makes all but one Felony, and I fliall be Tried here in Middle fsx for it : If a Man
write a thing in one County, and it is fent and difperfed in another County, that
ftill continues to be his Faft, though it may be the firft part was not in the fame
County with the other ; but fuppofe all this while that part fliould not afFeft my
Lord of Canterbury, the caufing it to be Publiflied does.
Mr. Juftice Pewtl. Do you think, Mr. Attorney, thafwriting in one County is
fuch a continued Aft, that he may be faid to write it in another County ?
Mr. Attor. Gen. Sir I take it, where there is a complicated Crime of Writing and
Publifhing a Libel, and the beginning of it is in one County, and the carrying ic
on is in another, that is a continued Aft, and may be Tried in either County.
L. C. J. It is all one Aft of Libelling fas they fay.)
Mr. Juft. Holloway. In Cafes of Felony 'tis fo, taking in one County, and being
found with the Goods in another, it is Felony in either County.
Mr. Jitft. Parcel. But in that Cafe they are two Felonies ; for it is Robbery in the
one County, and but bare Felony in the other.
Mr. Sol. Gen. Suppofe that my Lords the Bifhops Signed this Paper in another
County, and my Lord Archbifhop confents to have it fent into Middlefex^ is not this
a caufing it to be publifhed in another County ?
Mr. Juft. Panel. Yes, it may be, if you prove his Content.
Mr. Sol. Gen. Then fuppofe further, which may very well confift with my Lord
Archbi/hop's Evidence, of bis not being out of Lambeth info long time, the reft of
the
the Bifhops might fign it in flfidJlcfcx, or it may be in that Place \ and then they
carry it by my Lords confent over hither, into this County, ii not this a caufing ic
to be publifhed? the Delivery with his Confent certainly is a Proof of that, for our
Information goes two ways, For Making, Contriving, Writing and Publifhing,
that'sone: And then, Forcaufingit to be Made, Contrived and Publiflied, that's
the other : And if 1 prove that he caufed it to be publilhed, he may be found Guilty
as to that part, and not Guilty as to the other ; for the Information is not fo intire,
but that the King has his choice, if the Archbifhop had not figned it, or written it,
but had caufed ic tobe publifhed, he may be found guilty of fo much .- But if he be
Guilty of any one of thefe things, it is enough ; and if he be Guilty of none of the
other things laid in the Information ; yet if he be Guilty of caufing it to be publifh-
ed, by his confentingthat the reft of the Bifhops (hould do it, that will be enough
to maintain this Information. Then, my Lord, is there any Evidence brought
againft what we have proved, That he did not confent ?
Mr. Jnft. Powel. But where was this Confent of his given, Mr. Solicitor ?
Mr. Sol. Gen, . Pray, good Sir,, give me your Favour, 1 think I am in a plain Cafe.
Mr. Ser j. Pemberton. So you are truly.
Mr. Sol. Gen. Why, good Sir> you ought to make out the Locality, ifyou'Jtake
advantage of it.
Mr. Ser j. Pemberton. That's very well indeed, this is the firft time lever heard
that Doftrine.
Mr. Sol. Gen. I cannot help that, but certainly the Law is plain, we have
proved there was fuch a Fadl: as this done; and they do not go about to prove that
it was done elfwhere than where we have laid it -, for if they did, their Witnefles
would be crofs-examined by us ; and then we know what would become of them,
then the Truth of the matter would come out : Therefore I would make all this
conflare. The Archbifhop might be at Lambeth, and yet Guilty in Middlesex, by
his Concurrence with what was done in Middlesex: And I fay, my Lord, this is na-
tural, upon the Evidence that has been given, becaufe when they were interrogated
"at the Council, and confefied the Paper to be theirs, they made no fuch Explana-
tion of their Confeffion, of which they can make any Advantage in their Defence.
Here has been no Body produced that proves any thing to be done out of Middle fax ;
fo that ftill if he's Guilty of the Faft proved , he muft be Guilty in Mtddlc-
fex.
Serjeant Baldock. And it does-not appear, in this Cafe, but that my Lord Arch-
biibop might write the fame thing in Middlcfcx\ tho' he was at Lambe th fo long as
the Witnef! fpeaks of.
Mr.Juft.Pcwf/. How do you make out that, Brother?
Sef j. Baldock, He might do it when he came over to the Council.
Sir Rob. Sawyer, He muft do it after it wasprefented.
Serj. Bddock. Might he not be fo long here on this fide the Water, as to make
fuch a fhort thing as this, before it was delivered ? half a quarter of an Hour would
have done it.
L.Ch. Jnft. That's a thing not to be prefumed, Brother, cfpedally fince he is
proved not to have been in Middlesex for fo long together.
Sir Rob. S/myer. Mr. Serjeant is mightily miftaken, for it is not pretended, That
it was delivered at the time when the Archbifhop, and my Lords the Bifhops, were
before the Council.
Mr. Recorder. Either the Making and Contriving j or the PubliOiing of this Li-
bel will do upon this Information, for they fhallbe taken to be one continued com-
plicated Aft ; and then the Party may be tryed in either of the Counties, as the
King will ; as in the cafe of Treafon, it has been over and over again adjudged :
That if a Man does one A<ft of Treafon in one County, and afterwards goes into
another County, and does another Adi of Treafon, the Jury of either of the Coun-
ties may enquire of the Faft done in the other. If they then fhould take thofe two
as feveral Afts, they were feveral Offences, and they may be found Guilty of the
one and acquitted of the other ; but if they are taken as one continued Aft, they are
bnt one Offence, and the Jury of either County may try it. If then, in this Cafe,
the Jury of thisCounty may take notice of the Publication, which was here, as
.ccrtamly they may, if they will agree, as the Law certainly is ; That tbe Writing
of a Letter will be a fufEcient Publication, if the matter be Libellous. And there
are multitudes of Precedents for that ; and that the bare fetting of a Man's Hand
has
( 79 )
has been adjudged to be a Publication : Then give me leave, my Ldrd, to bring it
to a llmilar Cafe ; Suppofe a Man write a fcandalous Letter from London, to a Judge
or Magiftrate in Exeter ; and fends it by the Foft, and the Letter is received from
the Poft at Exeter, and there opened j would any Man make a Queftion whether
the Gentleman that fent the Letter may not be indi&ed and profecutecl for a Libel
at Exeter, where the Libel was received ?
Mr. Juft. Panel. There's no queftion of that, Mr. Recorder ; that comes not
home to the Fad in our Cafe, undoubtedly in the Cafe that you put, the Law is as
you faid, but it is far different from this Cafe.
L. Cb. Jnft. There's no Body oppofes the Publication, but the framing of it
where it was made.
Mr. Recorder. Suppofing then the Party were at Exeter ; and he were interro-
gated before the Magiftrate, Whether that were his Hand or no ? and he fhould
own k to be his Hand ; can anybody doubt whether his owning that to be his
Hand, would be a fufficient Evidence to prove a Publication ?
Mr. Juft. Poml. But is that any Evidence where it was written ? Or if it be not
proved that it was received atExeter, would that be a Proof of a Publication at Exeter?
L. Ch. Juft. They do not deny the Publication.
Sir Rob. Sawyer. We do deny that there was any Publication ; and they have
proved no place where it was made.
Mr. Sol. Gen. My Lord, we are not for turning my Lords the Bilhops out of the
way of Proof, that is ufual in fuch Cafes ; let them take it if they will, That this
was contrived and made in Surrey. But can they publifh it in M'uldkfex, without
committing an Offence ? and that is it we ftand upon : We are not for laying a
greater Load upon my Lords the Bilhops than our Proof will anfwer.
Sir Rob. Sawyer. We thank you for your Complement, Mr. Solicitor.'
Mr. Sol. Gen. Is this a fare way, of interrupting us when we are fpeaking ? Durft
iny one have ferved you fo when you were in the Kings Service ? We would make
our Duty as eafie as we can to my Lords the Bifhops ; and it may be eafier than
other Men would have made it. But my Lord, let it be a doubtful cafe, that wo
cannot tell which County it was made and contrived in, if it were made and
contrived in another County ; yet when they brought it into Middkfex, there
was a Publication in Middleftx •, and if my Lord of Canterbury contented to it, and
if he caufed it to be publiihed, how can any Body ever get him off from that caufing
of it to be publKhed? Here is a Paper that muft be fuppoTed to be my Lord Arch-
bilhops Paper : Now either the World muft look upon it to be an Impofture put
upon my Lords the Biihops, or a real Paper made by them. If it were an Impo-
fture and an Affront put upon the Bifhops, they ought to make it out for their
own Vindication, and to prove themfelves Innocent : If they do that, they do
well, and they ought to have Satisfaction made them by thofe that have fo highly
injured them ; and the King cannot be better plealed, I am fure, than to find
them fo : But if Men will look one way and aft another, they muft expeft to be
dealt with accordingly. Will any Man that has heard this Evidence, and fees that
thefc Gentlemen will not go the right way to work to prove their own Innocence,
believe them to be not Guilty ? 'Tis plain they contrived it and figned it j for can,
any one imagine that they fet their Hands to a Paper that was not formed and con-
trived by themfelves ? then let it go, That this was done in another County, and
we cannot punifh the Writing of it in this County , yet ftill they are Guilty of
caufing it to be publiihed in this County, and for that we may punifh them here :
We will be content with having that found that we have proved, which certainly
is an Offence.
Sir Rob. Sawyer. We oppofe that, Sir.
Mr. Sol. Gen. You oppofe it, I know you1! oppofe common Senfe, we don1!:
fpeak to you, we fpeak to the Court ; we are content with what is plain, and do
not defire to iufift upon any ftrained Conftru&ion , we fay this is Natural Evi-
dence for us ; If this thing be a Libel, as we fay it is, then the caufing it to be pub-
liihed, is an Offence : The Publication we fay was here in Middlesex, anU of that
t'licre is Clear Evidence, becaufe it was found there, and came from the King's
Hand, to whom it was direfted, and it could not come to the King! » Hand out of
their Cuftody, without their Confent : This ( we fay ) is a cle^r Evidence of
caufing it to be publilhcd, let the reft go as it will, becaufe we will take the eafieft
part of the Cafe, and not go upon Strains.
Y Mr. Serj,
Serj. Trindcr. The greateft Queftion is, I think, now come to the Pub-
lilhing - —
L.Ch.Jiift. The Court is of Opinion, that its coming to the King is. a pub-
fifhing.
Mr. Juflice Panel. Ay, my Lord, if it b: proved to be done by them.
Mr. Serjeant Pembenon. Before the Court'delivcr their Opinion, we defire to be
heard.
L. Ch.Jnft. Brother, you fliall be heard in j^ood time, but let them make an end
on the other iide, and when the King's Conjifcl have done we'l hear you.
Mr. Serjeant Trinder. My Lord, upon the Qucfdon of Publifhing, it has been
infifted upon, and the Coin t feems to be very much of the fame Opinion; That
the Writing of it is a Publifhing : That it is without Controverfie, if the Writing
of it fell out to be in Mtddlefex , where the Information is laid } but that they
would not have to be fo by Argument, becaufe the Archbi/hop had kept in at Lam-
beth fo long. But fuppofe, that it were fo as they would have it ; that is only as
to the Archbifhop, he being the Writer of it, but yet notwithftanding, that' the
other fix might vnbftribe it in Middlefex, taking it, that there is fuch a Face in
their Argument as they would have it.
Mr. Sol. Gen. We will lay no greater load on the other fix than we do upon my
Lord Archbilhop, and we fay they are all Guilty of the Publication in Middlesex.
Mr. Serjeant Trinder. Pray Sir, fparc me -, this Paper was in the Archbifhops
Cuftody and Power, he making of it himfelf ^ and regularly it could not have come
cut of hts Cnftody, in common Suppofition, bnt it muft come with his Confent.
It was afterwards in the Power of the other fi?c,they had it to fubfcribe , where the
Subfcription was w# conftat, they it may be can prove itthemfelvcs, but I will only
deduce this Argument •, That if it after comes into Middlesex , it muft be taken by
preemption to be fubfcribed by them there a-nd publifhed, it muft taken by Prt-
fumption fo to be.
Lord. Ch. Jaft. No Brother, we ought not to do any thing by preemption
here.
Mr. Juft. Pmtl. No, no, by no means, we muft not go upon Preemptions,
but Proofs.
L. Ch. Juft. I will not prefume it to be made in Middle fex.
Mr. Serj. Trinder. But it is proved to be publifhed in Middlefex.
Sir Robert Sawye r. My Lord, with fubmiffion, there is no Evidence of the Pub-
lication.
Mr. Attor. Gen. That the Court is to judge of.
Sir Rob. Sawyer. Pray, good my Lord, what Inftance of a Publication have they
given ?
Mr. Sol. Gen. The Court has heard the Evidence, we leave it there.
Sir Rob. Sawyer. Was it their owning and acknowledging it was their Hands,
when the King asked them the Queftion at the Council-Table ? Surely the King's
Counfel won^t pretend that was a Publication, when it was done at the King's
Command-, it was certainly the King that publifhed it then, and not my Lords
the Bifhops.
Mr. Attar. Gen. Well faid.
Sir Rob. Sawyer. Don't you remember that when Sir Blathrvayt faid the King gave
it to be read, and it was fhewed to the Brfhops ?
L. Ch. Juft. I remember what Evidence Mr. Blathwayt gave of the PafTages at the
Council-Board very well j and I know what Mr. Attorney did prefs about the Kings
promiftng to take no advantage.
Mr. Attor. Gen. My Lord, Mr. Attorney is on the other fide, he did not prefs
it.
L. Ch- JuJ}. Sir Robert Sawyer ( I mean ), I beg both your Pardons, Gentlemen,
I think I have done Injury to you both.
Sir Rob. Sawyer. My Lord, we fay there is no Evidence at all, that ever this
was fent to the King by the Archbifhop, or any of my Lords the Bifhops : And as
for the Cafes that they have put, they might have put five hundred Cafes, and all
nothing to the purpofe.
Mr. Sul. Gen. So they might* and done juft as others had done before them.
Sir Rob.
Sir Rob. Sawyer. And fb are thefe ; for here is the Queltion, We are in a Cafe,
where the Publication is that which makes it a Crime : Now I would have them
( if they can ) put me any fuch Cafe, and then apply it to this •, in William's Cafe,
the Queflion is quite other wife, and fo in any Cafe of Treafon it muft be ^ where-
ever there is an Overt Ad proved, it is the Treafonable Intention, and the ill Mind
of the Tray tor that is the Crime, and the Treafon (the Overt A&\ is only to be the
Evidence of it : In that Cafe of Williams^ with fubmiflion, my Lord, the Publicati-
on was not at all neceffary, but the very fecreteft Aft that could be done by him ( if
it were an Act ) is an evidence of the Mind, and fo the fending of the Book to the
King himfelf, though no body elfe did fee it, was an Evidence of the Crime of
Treafon, yet it could not be called a Publication. But in the other Cafe of Sir Bap-
ttit Iftcks , which was in the Star-Chamber, about fending a Letter of Challenge, it
was plainly refolved that it was no Publication of the Letter, and that was not the
ground of the Judgment given againft him there, that it was the Publication of a
Libel, but the very Fad was a particular offence ; for ( faid the Court there ) if
ycu will fend a Letter to a private Man, and that is a Letter that will provoke him
to break the Peace, that is an Offence punifhable in the Star-Chamber , but that is
nottheReafon which wasalledged, becaufe no Adion will lie for want of Proof,
but quite the contrary •, becaufe they may produce the Porter or Party that brought
It, and prove it that it tame from this man's hands ; and I do not queflion but that;
in the King's Bench at this day, if a man will write a Letter privately to provoka
another man to fight, there will lie an Information , but not for a Libel j for there
it will be neceflary for to make it an Offence, that there be a Publication ; for that
is the very form of the Crime, and upon that ground were all thofe Judgments a-
gainft Libels in the Star-Chamber. My Lord, I agree to write a Letter to the King
of another Perfon, or to make a Petition to the King concerning another Perfon,
as of my Lord Chancellor, or the Judges, or the like, to complain to the King of
them fcandaloufly, with provoking and reviling Language, that is a Publication j
and fo if I write a Letter to one man of another :, if there be Scandal in a Letter,
that is a Publication of a Libel } and that is the difference that has been always ta-
ken, where it is effential to make it a Libel, that there be a Publication, fuch a
Publication muft be proved, and the delivery of a Letter to a man that concerns
himfelf, is no Publication, but in this cafe they have not fo much as proved that it
was delivered to the King.
Mr. Serj. Pemberton. My Lord, with your Lordlhip^s leave, I take it, that they
have given no manner of Evidence of a Publication } to fay, the writing and fub-
fcribing of their Names to a 'Paper, is a Publication of that Paper, is fuch a Do-
ctrine truly as I never heard before j fuppofing this Paper had lain in my Study,
fubfcribed by me, but never went further ^ would this have been a Publication ?
They never (aid any fuch thing. As to Algtrnoon Sidney**, Cafe, there was no co-
lour for it, that it mould be a Publication ;, but it was an Overt Ad of Treafon to
compofe fuch a Book } They have proved by our Confeflion here, that we have fub-
fcribed this Paper ,they would take it novv,that therefore it muft be prefumed we fent
this to the King, and fo furmife us into an Information for making and publifhing
a Libel, which we. fent to the King ; but they do not prove it at all-: My Lord,
there are a thoufand ways that it might come into Middkfex, and perhaps come to
the King's Hands too , without our knowledge of Delivery } and fiire you will
not prefume thefe Noble Perfons without Evidence to be guilty of fuch an Offence
as this is fuggefted to be ; fo that , My Lord, and Gentlemen of the Jury, "'tis im-
poffible for you to find this a Publication in MMlefex ; and for the other thing,
( the writing this Paper ) they that would make it an Offence, muft prove, where
it was done.
Mr. Ser. Levin*,. My Lord,The Anfwer that I mall give to what has been faid on.
the other fide, is very fhorf, the Cafes that have been cited are all Law, but not one
tittle to this pnrpofe : In Sir Baptift Hicks1'!, Cafe, and Wilii<*ms\ Cafe, it was pro-
ved they all fent them to the Places whither they were direded jbut is there a tittle
of Proof that thefe Bifhops fent it here ? In all thofe Cafes, they mult fend it either
by a Porter or a Carrier , and they fend it as their own Ad , and when it
conies there, by their fending, ,that is fufficicnt Proof of their Ad in the placs
whither it is fent : And for Sw&^y's Cafe, there was Treafon in the very Libel
and Book that he made j and he was not indided for Publifhing, but for Treafon
in the place where it was found, bscaufc it was found in his poflbifion : But was
this
(..*»•)
this ever in my Lord Archbifhons poflbnion in MiddleftK, or the reft of the Bifhopj
and were they publishing of it r if it had, then it had been their Ad cjcarly : But
that is the thing wherein they are defective, that they do not prove that my Lords
the Bifhops fcntor brought it here ; but upon the Queftion asked them by the King,
they acknowledged it to be their Hands : So that my Lord there is no proof of any
Fad done here, but an Acknowledgment of a Fad done, no Body knows where,
upon the King's Queftion here mMiddlefex ; Is that any Proof of this Information ?
Mr. Finch. Pray, my l^ord, fpare me a Word on the fame fide, let us fee what
the Evidence is. The Evidence is this, That the King brought the Paper to the
Council-Table, and the Bifhops owned their Hands to it : This is the Effect of
the. Evidence, and all that is to prove the Forming and Making a Libel in Middh fix,
and the Publication of that Libel. And what is therefore inferred from thence '!
why, having proved that the King brought the Paper to the Council-Table, and
the Bifhops owned their Hands : Therefore, firft the Bifhops made this Libel in
Middlefex. Secondly, they brought it to the Council-Table, and publifhedit at
the Council-Table, or elfe there is no proof at all : For here is nothing of Evi-
dence given of any Fad, but becaufethey acknowledged it, therefore they made it,
therefore they gave it to the King in Middlefex : This were good Evidence if they
had had the Help of a Suppofition to make it good •, but they want that, nor mult
any fuch thing be admitted; but 1 think they are fuch grofs falfe Confequences,
that I doubt not you'l be of Opinion, Here's no proof of a Publication in Middle-
fex, and then there is no proof at all againftmy Lords the Bifhops.
Mr.Poliixfen. I mult confefs 1 hear them fay two Ads prove a Publication in this
Cafe ; the one is, the Writing of the Libel, and the Subfcribing. If fo, then I
think upon the Evidence that has been given, the Court muft needs be fatisfied,
that the Writing of it was in Surrey : The next is, their owning their Hands ; for
there is no Ad done that appears, or any Evidence againft them of any Ad done,
from the time of the Writing, to the time that they were asked, is this your Hand ?
Surely no Man would ever think this to be a Publication, where one is asked by
Authority, whether fuch a Paper be his Hand, and he acknowledges it in Anfwer to
that Queftion } to turn this to be a Crime, I think it can never be done, nor never
was done before. Then there is nothing in the Cafe, that they can hold to for
Evidence, and Proof againft my Lords the Bifhops, but the Writing ; and that is
apparent to have been in Surrey, or otherwife they muft hold that the Anfwer to
the King's Queftion, this is my Hand, is a Publication. But truly, ray Lord, I
think neither of thefe will do : But my Lord, to me this is a great Evidence in it
felf againft the Proof of a Publication, the Care and,Warinefs that has been ufed,
that there fhbuld be nothing at all of this Matter known, from the time that it was
written, to the time that they came to be examined and fummoned to appear as
Offenders. My Lord, the Nature of Libels is to publifh and proclaim Scandal and
Defamation, or elfe it lofes its End, and confequently its Name : This, as it ftands
upon their Evidence, is a monftrous Proof for my Lords the Bifhops, againft the
King's Council ; for it feems, \is a very private Matter, fo cautioufly and warily
carried, that there is not any Evidence of the Fad, but only the Name; of the per-
fons that writ it, till they come to be' examined by the greateft Authority, Is this
yonr Hand ? and then they own it fo to be ; how can this be taken to be a Pub-
lication ? and it will be a thing of wonderful Confequence , if an Anfwer to
a Qneftion put by Authority, fhould amount to a Crime, as it would in this Cafe,
that would be as if Authority that mould be employed to do Right, would be turn-
ed to do the greateft Wrong ; for it is the Duty of all men to anfwer when examin-
ed by a lawful Authority, and it would never be offered at fure in any other Cafe :
If a Man comes before a Magiftrate,and confefles any thing,that indeed is Evidence,
but is not a Crime •, for there is a great deal of difference between Evidence and the
Crime ; but that this mould be both an Evidence and a Crime too, is, I think, a very
ftrange Conftrudion i and for the other partf the writing of it) I fuppofe the Court
is fatisfied thatit was in another County.
Sir Ceo. Trcby. I deftre your Lordfhip to fpare me a Word, which I think has
not been obferved by the Council that have fpoke before. The Queftion that re-
mains, is, Whether my Lords the Bifhops did Pttblijl} this Paper ? This is a mat-
ter of Fad that lies upon the Profccutors tf) prove. Now I think they
arc fo far from having proved that the Bifhops did publifh it , that on
the contrary , they have proved that their Lordlhips did not Publifh it.
The
[85]
Th-s tviucncc they tuve offered for this matter is a Confeflion. This Con-
fdfion is certified by Mr. BGaeb*i)*tt and he fays the Bifhops were ask'd at the
Council whether they did iubfcribe and publifh this paper, and that their an-
iwcr'vvas tliat they d\A J'ni'fcribe but not pMtfi it.
Now a Conteffion muft be taken together, and muft be admitted to be in-
tirely true by them that produce it ; they fhall never be allowed to take out
and ufe one piece, and wave the reft.
Why then by this Evidence ot Confcffion, taken as it ought, it appears thac
the Bifhops (though they did fubfcribe) did not pitblijl the paper. So that,
I lay, the King's Counfel have hereby plainly proved that the Bifhops did
not publifh this paper, and yet this is the onely Evidence upon which they
would infer that they did publifh it.
Mr. An. Gen. Look you, it does lie upon you Gentlemen to prove it was
don&elfewhere than in MkUkftn.
Mr. Fmch. Sure Mr. Attorney is in jeft.
Mr. Att. Gen. No, I am in good earneft, all the proof that we have given '
has been in Middkfex, and you can beft tell whether you did it in Middlesex
or no.
Mr. Finch. My Lord, we have done as to this Objection; for we fay they
have not proved their Cafe.
L. Ch. jujt. Mr. Fiitch you may obferve (and I am fure you do obferve as
well as any body in all Cafes,) but I fay you may obferve that they are off
of every thing but caufing it to be publifhed ; now that does lie upon th«
King's Counfel to prove, that my Lords the Bifhops did caufe it to be publi-
(hed, for their owning of their hands does not amount to a Publication.
Mr. S. Ptmberton. My Lord, We are upon this point with them, whether
here be any Evidence of a Publication at all.
Mr. Jujt. Powell. Pray let us clear this firft ; for if there be no publication,
there can be no caufing of it to be publifhed.
Mr. An. Gen. My Lord, if you think fit, we fhall go on and refervc this
point till afterwards.
Mr. Sol. Gen. They may make Objections, if they think fit.
L. Ch. Juft. So they may, and they fay if thefe Objections are with us, we
need go no farther.
Mr. S. Pemkerton. But, ray Lord, if they be not with us, we have a referve
to give a farther Anfwer to it and to offer Evidence againft the Evidence they
have offered.
Mr. Sol. Gen. With all our hearts, give in Evidence what you can.
Mr. Att. Gen. Then pray my Lord let us go on to anfwer this Objection.
L. Ch. Jujt. Pray do Mr. Attorney.
Mr. Att. Gin. My Lord and Gentlemen of the Jury, I would firft obferv*
how far we have gone. That there was fuch a paper written is clear beyond
all queftion, and written by my Lord Archbifhop of Canterbury, and that it '
was figned by the reft of the Bifhops, but not in the County of Middlesex, and
that this paper was publifhed is agreed on all hands.
Mr. Ju(t. Hallo-way. No they do not agree that.
Mr. 'AK. Gen. Do I fay it was publifhed by them ? but there was fuch a
paper publifhed.
Mr. S. Pemberton. No, we fay it was never publifhed at all.
L. Ch. Juft. Pray Brother Pembmon be quiet, if Mr. Attorney in opening
docs fay any thing that he ought not to fay, I will correct him, as I would do
any body that doe» not open things right as they are proved, but pray don't
you that are at the Bar interrupt one another, it is unbecoming men of your
Profeiiion to be chopping in and fnapping at one another- Goon Mr. At-
torney.
Mr. Att. Gen I fay, that the Paper is proved to be written and figned by
my Lords the Bifhops, that I take for granted, and that the Paper fb figned
and written is now publifhed to the world, is alfo evident ; but the queftion is
who r .vas clone by, or who caufed.it to be done, we are reduced to that
queft'/.p. Now, firft, it is agreed on all hands, that if I fend a Letter to a pri-
vate Man containing Scandalous things in it, though there is no proof more,
but tlK.r it was fent fcalcd and received by the party, in that Cafe ic was a
Z, fault
[ w.]
fault puniflwble in the Star-Chamber, as a Crime ; but how that this w"as re-
ceived by the King, and written by them, there is no room for doubt ; for
you hear it was produced by the King at the Council-Board, and they asked
upon it, if it were their hands > that the King did receive it, there is no room
lor queftion, or that they did write it ; but the queftion is, from whom the
King had it > I am fure they muft (hew that fome body elfe did it ; and unlels
they doe fliow that, I hope there is no manner of queftion, but it came from
them, and they did it ; though no man Living knew any thing of this matter,
but whom they thought fit to communicate it to ; yet ftill they putting the
King upon the neceffity of mewing this Power in order to his obtaining fatis-
faclion for it, or elfe he muft remain under the indignity without reparation,
it ought to be put upon them to clear the Fad ; for if he does not produce it,
then muft the King put up the higheft injury and affront, that perhaps a
Man can give the King to his face, by delivering a Libel into his own hands ;
and if he docs produce it, then fay they, that is not our publication, we prove
it to be your writing and figning, and we prove it to come from the hand
of the King againft whom it was compofed , for we lay it is a Libel againft his
Majefty, his Government and Prerogative ; if then, all thofe cafes that have
been cited be Law, then fure there never was a ftronger cafe in the World
than this ; and I hope the Law goes a little farther in the cafe of the King,
than it does in the cafe of a private Man ; no Man muft think by policy to
give private wounds to the Government, and difparage the Adminiftrationof
it, and then when he is called in queftion about it, fays he, pray puove that
I publifhed it, or elfe you mail not punifh me for it, we prove you. framed it
and writ ic and figned it, and we prove it came to the King's hand, of whom
it was compofed, muft we produce two Witnefles of the delivery of ic to the
King ? furely there will be no need of any thing of that.
Mr. Sol. Gen. My Lord, we have reduced it now to a very narrow queP
tion, for (as Mr. Attorney has faid) my Lord, there is no doubt but that my
Lords the Bifhops are the Authours of this Paper, there is no doubt but they
figned it, and there is no doubt but that their figning of it, though it were at
Lambeth (as they fay) is a publiming of it, but however this is plain and raa-
nifeft, that this Paper was publifhed, and that this Paper was publiftied in
Middlefex, that is as plain too; now then there is nothing left but this quef-
tion, whether my Lords the Bifhops who framed the thing, who wrote the
thing, who figned the thing, were not the occasion or caufe of its publication,
or privy or contenting to it ; my Lord, I will reduce it to a very plain
point; for we are upon a rational queftion, before a rational Court, and a
rational Jury, whether thefe Lords did all of them in the County of £uryt
confent to the publifhingof this Paper in Middlesex ; for it is publifhed \v\Mid-
dlefex, (that we fee,) and if they are guilty of that part of the Information,
of caufing it to be publifhed, now what do they fay to it, fay they, ic is a-
' greed that it is publifhed in AdidMefex^ut it is noc proved to be publifhed by us.
. Lord Cb. Juft. No, they do not fay fo, they agree it was in Mtddlefex, but
not publifhed.
Mr. Juft. Towel. Mr. Solicitor, they do agree it was in Middlefex, but not
publifhed to be fure, not by them.
Lord Ch. Jujl. Mr. Solicicor, I'll tell you what they ftand upon, they fay
you ought to prove it to be delivered to the King by the Bifhops, or fome
body employed by them ; for upon that went the Refolution that was in
"Williams cafe, that he fent it to the King ; but here is no body that proves
that ic was delivered to the King in this cafe, fb that how ic came to the King
jf&» conjtat.
Mr. Sol. Gen. There will be the queftion between us, whether this be not a
publication.
Sir Rob. Sawyer. Pray Mr. Solicitor prove your cafe before you argue ic.
L Wc&.jf«/?.Firft fettle what the cafe is.before it be either proved or argued.
Mr. Sol.Gen. My Lord, I'll put you the cafe, here does appear in Mtddleftx
a Paper that is a Libel in itfelf, and th.is Libel is proved to be written and for-
med by tbele perfbns, this Libel coming into AfuUltfex, the queftion is, whe-
ther they are privy to it, I fay in point of prefumpcion, ic muft come from them
LtrdCb. Jttft. I cannot fuppofe it, I cannot prefume any thing.
Mr. Sol. Ceo.
Mr. Sol. Gftt. My Lord, I fpeak of that which is a common prefumptfon,
a natural prefumption, what we commonly call a violent prefumption, which
is a legal prefumption, and has always been allowed for Evidence ; now
whether there be hot fuch a prefumption in our Cafe , as to induce your
Lordfhip and the Jury to believe that it cannot be otherwife, or at leaft to put
the labour upon them, to fhew how it came out of their Studies, and how
it came to the King's hands, for it is in their power to fhew the truth of this
matter, how it was, if they do not, the prefumption will lie upon them ;
that the Paper came to the King, that is plain enough, and its coming to the
King's hands, is a plain proof of a publication in MiMlefex, and who fhould"
bring it to the King, but thefe Gentlemen in whofe power it was > there is no
Man undertakes to fay, he loft it, then what elfe is to be believed, but that
it came from them, I fpeak of common fuppofition and belief, they may very
well (hew it if it were not fb ^ all that we can fay in it, is, here is a Paper in
Middlefex, this you agreed was once your Paper, and in your power, pray
fhew what became of it, it lies upon you to clear this doubt.
Mr. Recorder. My Lord, there is buc this queftion in the cafe, the queF
tion is not, whether the owning it be a publication, but whether here be
any Evidence that they did deliver it to the King ; now if they did deliver ic
to the King, that will be agreed to me to be a publication.
Mr. Juf. Holloivay. No doubt of it, if you can prove it.
Mr. Retorder. Pray Sir fpare me, that they did it you have this Evidence ;
firft, that they were the Authours of this Paper by their own Confeffion,
that this was in the County of Middlefex, and that when they were asked
concerning it, they owned it to be their hand Writing ; now whether you
can in the leaft queftion after all this, their delivering of it to the King, or
that it came to the King's hands without their knowledge or content, is that
which lies before your Lordfliip for your Judgment.
Lord Chief Jujtice. I will ask my Brothers their Opinion, but I muft deal
truly with you, I think it is not Evidence againft my Lords the Bifhops.
Mr. Juft. Holloway. Truly I think you have failed in your Information,
you have not proved any thing againft my Lords the Bifhops in the County
ofMiJMefex,znd therefore the Jury muft find them not guilty.
Mr. Attor. Gen. I'le put you but one cafe my Lord, a Man has an oppor-
tunity fecretly to deliver a Libel into the King's hands, when no Body isby,-
and fb there can be no proof of the delivery.
Mr. Juft. Vowel. 'Tis a dangerous thing Mr. Attorney on the other fide, to
convift People of Crimes without proof.
Mr. Attorney General. But fhall a Man be permitted thus to affront the
King, and there be no way to punifh it.
Lord Chief Jitftice. Yes, there will fure, but it will be a very ftrange thing
if we fhould go and prefume that thefe Lords did it, when there is no fort of
Evidence of it ; 'tis that which I do afTure you I cannot do, we muft proceed
according to Evidence and forms and methods of Law, they may think what
they will of me, but I always declare my mind according to my Confcience.
Mr. S. Trinder. But as to that other point whether their owning of it, be a
publication, has not been particularly (poke to.
Lord chief Juftice. Mr. Attorney, and Mr. Solicitor, if there were enough
to raife doubt in the Court, fo as to leave it to the Jury, I would fummup
the Evidence.
Mr. Solicit. Gen. My Lord, we know it is with the Court, thefe Lords in-
lifted upon it, that it was a great while in their hands, but it feems as far as
our Evidence has gone hitherto, their Confeffion went no farther than that ic
was their Paper, and we muft not extend their Confeffion further than it was ;
but I think we fhall offer a fair Evidence that they did deliver it in the
County of Middlifex.
LordCb.Jutt. Indeed, indeed, you ought to have gone to this Mr. Soli-
citor, before the Court gave their Opinions.
Mr. Solicit. Gen. Pray call Mr. Blathwayt again.
Mr. Elathwayt called.
Lord Cb. Juft. Mr. Solicitor, unlefs you are fure that Mr. Blatbwait is a
Witnefs to the publication, 'tis but fpending the Courts time to no purpoft
to call him. Zz Mr. Sol. Gen.
[ 88
Mr. Solicit. Gen. We are fure of nothing, my Lord, but we muft make ufe
of our Witnefles, according roour luttrudions in our Briefs.
Then Mr. Blatbwatt appeared.
Mr. Jktor. Gen. Mr. Blatbwait you were (worn before.
Mr. Blathtvait. Yes, Sir.
Mr. ^ittor. Gen. Your were prefent when this Paper or Petition was 4cS
tered by the King, at the Council-Board.
Mr. Blatbwatt. Yes, I was fo Sir.
Mr. Attor. Gen. Do you remember any thing of the Bifliops acknowledg-
ing their delivery of it to the King.
Mr. Sol. Gen. Mr. Blatlmwt I would ask you, was there any mention or
difcourfe with my Lords the Bifhops, how that Paper came into the King's
hands, was there any mention of what it was done for, upon the account of
Religion or how ?
Mr. Blatbwait. I don't remember any thing of that Mr. Solicitor, at whieb
there -was a great Laughter.
Lard Ch. Juft. Pray let us have no laughing, it is not decent, can't all this
be done quietly without noile, pray Mr. Blathvait let me ask you, do you
remember there was any difcourfe how that writing came into the Kings hands »
Mr. Blathwait. I received it from the Kings hands, and I know it was pre-
fented to him by my Lords the Bifhops.
Lord Cb Jtift. How do you know it was prefented to the King.
Mr. Blathwatt. I heard the King fay fo feveral times.
Mr.Sol.Ge7i. Pray mind my queftion Sir, fir ft I ask you who produced-
the Paper at the Council-Table ?
Mr. Blathwait. The King.
Mr. Sol. Gen. What faid the Bifliops when that Pa per was (hewed them.
Air. Blathwait! Then (as I remember) they were asked, whether that
was the Paper that they delivered to the King >
Mr. Sd. Gen. Then what faid the Bifhops .->
Mr. Blathwait. They at firft fcrupled to anfwer*, and they fakik might be
made ufe of to their prejudice if they owned it.
Mr. Att. Gen. Pray Mr. Blarhwait confider again, was that the queftion
put to my Lords the Bifliops, whether that was the Paper that was presented
by them to the King ?
Mr. Blathwait. I do think, to the beft of my remembrance, that my Lord
Chancellor did ask them to that purpoft, I cannot fpeak to the very words.
Mr. Sol. Gen. And upon this, what anfwer did they make?
Mr. Blatbwait. My Lords the Bifliops fcrupled to anfwer the firft and fecond
time (as I told you before) but they did own it was the Petition that they
presented to the King, to the beft of my remembrance.
Mr. Sol. Gen. Did theArchbifliop do any thing to own it?
Mr. Blathwait. Yes both my Lord Archbiftiop of Canterbury and the reft of
the Bifliops did own all the fame thing.
Mr- Sol. Gen. Was this done at Whitehall ?
Mr. Blathwait. Yes, at the Council-Table.
L. Ch- Juft. Pray rccolleft your (elf, and confider what you fay, did they
own that that was the Paper they delivered to the King?
Mr. Serj. Temb. Pray my Lord give us leave to ask a queftion to clear this
matter, was the queftion put to them, Whether it was the Paper that they
delivered, or whether it were their hands that were to it P
Mr. Blathwait. My Lord, I do not fb exaclly recoiled; the words.
L. Cb. Juft. But pray tell us, if you can, what the queftion was ?
Mr. Blathwait. My Lord, I do not remember the very words, but I think
if Mr. Serjeant Pemberton be pleaftd to repeat his queftion, I fhall give him &
fatisfactory anfwer, as well as I can.
Mr. Serj. Pefnbtrton, Sir, that which I ask you is this, Whether the queftion
that was put to my Lords the Biftiops at that time was, Whether this was
thu Paper that they deliver'd to the King, or whether thofe were their hands
that was to it ?
Mr. Blatbww. My Lord, I did always think that it was a plain Cafe that
that was the Paper that they delivered to the King, and my Lords the Bifliops
did
did never deny bur that they gave it to the King, and I had it from the King's hands.
L. Cb. 'Jujt. But we mult know from you (if you-can tell us) what the queftion was
that was put toniy Lords the Bifhops, were they asked, Whether thofe were their hands
that were to that paper, or was it Whether they delivered that paper to the King ?
A Jr. Blatb-wait. As to the firft parr, that they owned 'twas their hands, that I am
fure of ; but as to the other, I do not remember -what the words were.
At which there was a great (hout.
Mr. Att. Gen. Pray Mr. Blatbwait recollect your (elf, you fay the King produced if.
Mr. Blathwait. Yes Sir.
Mr. An. Gen. Do you remember that the King asked them any queftion upon the
producing of it ?
Mr. Blathwait. My Lord Chancellor asked them, if thofe were not their hands to
the Petition ?
Air. Sol. Gen. Was there any other matter in difcourfe, whether that was the paper
that was delivered by them to the King ?
Mr. Blathwait. I cannot fo positively (ay, what were the words that my Lord
Chancellor ufed. /
Mr. S. Levinz. Pray do not twift a man fo, Mr. Solicitor.
Mr. Sol. Gen. And you are not to untwift a man neither, Mr. Serjeant.
Mr. An. Gen. Do you remember that the King faid any thing of the paper being
delivered to him >
Mr. Blathwait. The King has faid it feveral times, I believe I have heard him fay ic
ten times at leaft.
Air. Att. Gen. Did he fay it at that time ?
Mr. Blathwait. I cannot pofitively fay that he did, Sir.
Mr. S. Pemk He cannot anfwer it, why will you prefs it ?
Mr. Blathwait. My Lord, here is the Clerk of the Counfel that was then in wai-
ting, he took minutes, and perhaps can remember more than I.
Mr. Sol. Gen. Here they cry he cannot anfwer it, as if they could tell what he can
anfwer better than himfelf ; pray Mr. BriJgman, was there any queftion to this pui*^
pofe either from my Lord Chancellor, or from the King, whether that was the Pa-
per that was prefented by my Lords the Bifhops, or delivered by the King, for I fee*
you are very nice as to words, and you do very well ; but was there not a queftion
to that purpofe.
Mr. Bnelgm. Sir, I do not remember, for I fpeak to the beftof my remembrance
in all this matter ; I fay, I do not remember that that queftion was asked in thofe
very words, but I do remember fomething was faid to that purpofe, but by whom I
cannot particularly fay.
Sir Rob. Sawyer. To what purpofe ?
Mr. Sol. Gen. It is very ftrange that they wont let the witnefs fpeak, but are con-
tinually interrupting him.
Sir Rob. Sawyer. Mr. Solicitor, no body interrupts him.
L. C. J. Why do not I behave my felf between you all as I ought to do ? pray
Sir Rob. Sawyer, fit down, you cannot be contented when the man does you no harm.
Mr. Sol. Gen. Pray confider, did my Lords the Bifhops fay any thing, or was there1
any difcourfe concerning the Paper, whether it was delivered to the King or no ?
Mr. Bndgm. "Mr. Solicitor, 1 have told you as near as I can what I do remember ;
I know not by whom it was faid, but that queftion or to that purpofe- was asked,
whether that was the Petition they delivered, but I do not remember whether the
queftion was direftly asked or anfwered, there was fomething about it, and feveral
palfages there were ; but whether fpoken by my Lord Chancellor or who, I cannot
remember.
Mr. Sol. Gen You fay there was that which fufficiently denoted a queftion to that
purpofe, and they faid nothing againft it.
Mr. Rrulgm. No, there was no denial of it.
Mr. S. G. 1 fee you do not remember the particular words, nor do we defire it of you.
Mr. BriJgm. They did not deny it nor confefs it.
Mr. Sol. Gen. Then in your apprehgnfion did they own that they delivered that Pa-
per to the King ?
L. C. \f. You muft not ask that Mr. Solicitor, it is not a fair queftion to ask him'
what he apprehended.
Mr. Sol. Gen. He faid it before himfelf.
A a L.C.J. But
L.C.J. But his apprehenfions are no Evidence, and it is a fort of a leading quef-
tion which we muft not allow of.
Mr. Sol. Gen. Then if your Lordfliip do not like it, I will not ask it, but I will ask
him another queftion.
L. C. J. Ay, ten it you will, fb they be fair ones.
Mr. Sol Gen. Was it upon the firft or fecond time of their being examined !
Mr. Bndgm. I cannot tell, it was not the firft time, all of it, I believe ; for at the firft
time my Lords the Bifhops made fome fcruple of anlwering or owning any thing, and
whatfoever they owned, they laid, they hoped it fhould not be made life of to
their prejudice ; I remember no reply that was made, nor any thing farther, onely
.. my Lord Chancellor faid, they were not to capitulate with their Prince ; but they
were required to anfwcr the queftions that were asked them.
Mr. Sol. Gen. What were thofe queftions ?
Mr. Bridgm. I have told you already as well as I can remember.
Mr. Sol. Gen. But did you take it upon the main that they owned the delivery of
that paper to the King ?
Mr. Juft. Pow. Mr. Solicitor, you have been told you are to ask no fuch queftions.
S. R. Saw. Nor never wasthere fuch wire drawing of aWitnefs in this world before.
L. Cb. Juft. Pray fit ftill, Sir Rob. Sawyer, you are not to teach us what we arc to
do, Mr. Solicitor muft ask queftions that are proper for him and not fuch as thefc;
but the Court muft correft him and not you.
Mr. Sol. Gen. Mr. Bridgman is very cautious, and he is to be commended for ir, but
we would get the truth out of him, if we could, pray Sir, if you can remember, recoi-
led your felf, whether by any queftion to that purpofe, it was believed that they did
own the delivery of the paper to the King.
Mr. Bridgm. I told you, Mr. Solicitor, as to that at firft, that I do not remember
the very words of the queftion, but I believe there was no body doubted that that
was not the paper.
Mr.Sol.Gen. You fpeak well in your way, but thefe Gentlemen are very unwil-
ling you (hould tell your opinion.
L. Cb. Juft. His opinion is no Evidence, therefore you muft not ask any fuch
queftions, Mr. Solicitor.
Mr. Bridgm. Aflboti as the Petition was delivered, within a few hours after, I ftw
it, the King fhewed it to feveral people, and he faid, it was the Petition the Bifhops
had delivered, he took it into his owncuftody, and afterwards commanded me to write
a Copy of it, and there was no Copy made of it but that one, but notwithftanding
that, I do remember I did fee a Copy of the Petition, within a day or two after it was
prefented about the Town.
Mr. Sol. Gen. Pray how many days was this before the difcourfe in Counfel upon
their Examination ?
Mr. Bridgm. How many days was what Sir ?
Mr. Sol. Gen. When the King gave the paper to be copied.
Mr. Bridgm. It was upon the Sunday.
Mr. Sol. Gen. But you fay (as you believe) it was in a few hours after the paper
was delivered to the King, that you did fee it.
Mr. Jitft. Powel. But what makes him fay that this was delivered to the King, but
only -hear fav ?
Lord Cb. Juft. Pray Mr. Solicitor, will you produce that which is Evidence, and
not fpcnd our time in that which is not.
Air. Sol. Gin. My Lord, I would make no more of it than it is.
Mr. S Levin?,. 'Tis a fhamefull thing to offer fuch things in a Court ofjuftice.
Mr. S. ^tmbmon. 'Tis a practice that ought not to be endured.
Lord Cb. Juft. Pray Brothers be quiet, or i'le turn him loofe upon you again, if
you'l not be quiet ; what is the matter ? cannot you let us alone? we (hall do every
body right : corre, to fliorten this matter, I ask you but this one queftion, and that
may fatisfie any one that has honcfty about him ; do you remember whether or no
they were asked, if that was the Petition that they delivered to the King ?
. Mr. Bridgm. My Lord, I have anfwercd that queftion as direftly as I can, I do
not pofitively remember that that was the queftion.
Lord Cb. Juft. Mr. Solicitor General, you muft be fatisfied, when proper queftions
are fairly anfwercd, and therefore pray be quiet.
Mr. Att. Gen, However we pray we may ask the reft of the Clerks of the Counfe!,
it
91
it may be they may remember more — Sir John Nicholas you were at the Council-Ta-
ble that day my Lords the Bifhops were examined about this Paper.
Sir John Nicholas. Yes, Sir, I was.
Mr. An. Gen. Pray did you obferve that the King produced the Petition ?
Sir John Nicholas. No, indeed, I. did not lee it.
Mr. An. Gen. Did you obferve any thing that pafled there in difcourfe ?
• Mr. Sol. Gen. Did you obferve any queftions that were asked the Bifhops, either
by the King or by my Lord Chancellor ?
Sir John Ntch. I think my Lord Chancellor did ask them, if that was their hands
to the Petition, and they owned it.
Mr. Sol. Gen. Do you remember whether they owned, that they delivered that
Paper to the King ?
Lord Cb. Juft. I'le ask you, Sir John Nicholas, did my Lord Chancellor ask them
this quefticn, is this the Petition you delivered to the King?
Sir John Nicholas. I do not remember that.
Then there wot a great fliout.
Mr. Sol. Gen. Here's wonderfull great rejoycing that truth cannot prevail.
Mr. 5. Pemberton. No, Mr. Solicitor, truth does prevail.
Mr. Sol. Gen. You are alt very glad that truth is ftifled, Mr. Serjeant.
Mr. 5. Trinder. Pray Sir John Nicholas, let me ask you one queftion, was there any
difcourfe about delivering that Petition to the King ?
Sir John Nicholas. Indeed I do not remember it.
Mr. Sol. Gen. There is Mr. Pepfs, weell examine him.
Mr. Pepfs fworn.
Lord Cb. Juft: Come i'le ask the queftions, were you bye at the Council-Board
when my Lords the Bifhops were committed ?
Mr. Pepfs. Yes, I vyas.
Lor deb. Juft. What were the queftions that were asked either by the King or by
my Lord Chancellor ?
Mr. Pepfs. My Lord, I would remember as well as I could, the very words, and
the very words of the queftion were (I think) My Lords, do you own this Paper ?
I do not remember any thing was fpoken about the delivering, but I believe it was
underftood by every body at the Table, that that was the Paper that they had deli-
vered.
Lord Cb. Juft. Well have you done now ? But to fatisfie you i'le ask this queftion,
was this queftion asked, my Lords was this the Paper you delivered to the King?
Mr. Pepfs. No, my Lord.
Mr. Ait. Gew.Pray Sir,do you remember whether the King himfelf asked thequeftion?
Mr. Pepy's You mean I fuppofe Mr. Attorney that thefe were the words, or
fbmething that imported their delivering it to the King.
Mr. An. Gen. Yes, Sir.
Mr. Pepfs. Truly I remember nothing of that.
Mr. ScL Gen. Did you obferve any difcourfe concerning their deli/ery of it to the
King.
Mr. Pepfs. Indeed Mr. Solicitor I do not.
Mr. Att. Gen. Swear Mr. Mufgrave.
Mr. ^An/grave Sworn.
Lord Ch. Juft. You hear the queftion Sir, what fay you to it?
Mr. Mufg. My Lord I will give as (hort an acountof it as I can, the firft time after
his Majefty had produced the Petition and it was read at the Board, his Grace my
Lord Arch Bifhop of Canterbury and the other fix Reverend Lords Bifhops were called
in, and it were asked of them, if they owned that, or if it was their hands, my Lord
Archbifhop in the name of the reft, did decline anfwering, upon the account that they
*vere there as Criminals, and were not obliged to fay any thing to their own preju-
dice, or that might hurt them hereafter ; but if his Majefty would command them,
and if he would promife that no advantage fhould be made of whatfoever they contef-
fed, then they would anfwer the queftion, his Majefty made no anfwer to that, but
only faid he would do nothing but what was according to Law, whereupon the Bi-
fhops were ordered to withdraw, and being called in a fecond time the Petition was
fhewn to them, and they were asked if they did own it, or if it was their hands, and
I think my Lord Archbifhop did (ay then, we will rely upon your, Majefty, or foroe
fuch
r
fuch general th'ng was fa Id, nnd then they did all own it that u was their hands, I
cannot fay the Petition was rcid to them.
Mr. Jap. I'mv. Mr. Blatlm-ait (*sl remember) it was t!ic third rime.
Mr. Mufcrave. Ic was die (econd time (ro the hell ot" my remembrance )
Lord Cb. Jttjl. Prav Sir, was there any queftion to this purpofe ! is this the Paper
you delivered to the Kins< ?
Mr. Muf'g. I do not remember that ever any fuch direft queftion was asked.
Mr. Juft. dlljbcne. But (as my Brother Ytmbtnon did very well beto-: e diftin^uifh)
(here is a great deal of difference between the owning the fubfcription ot a Pa per, and
between the owning of that Paper, Mr. Pepfs did (ay that they did own the Paper,
and upon my word that will look very like a Publication.
Mr. M«/g. I remember my Lord, there was at the fame time a queftion asked, be-
eaufe feveral Copies had gone about the Town, whether they had published ic, and
my Lord Archbifhop did lay, he had been fb cautious that he had nor admitted his
own Secretary, but writ it all himfelf, and the reft of the Bifhops did (ay, they did
not publifh it, nor never gave any Copies ot it.
Mr. Au, Gen. My Lord (1 confels) now it is to be left to the Jury upon this point,
whether there not being a pofitive Witnefs that was by when the thing was done, yet
upon this Evidence the jury can't find any otherwife, than that the thing was done ;
truly I think we muft leave it as a ftrong cafe for the King, I could have wiflied iu-
deed for the fatisfaftion of every body, that the proof would have come up to that,
but we muft make it as flrong for the King upon the Evidence given as it will bear ;
now my Lord, take all this whole matter together, here is a Paper coropofed, framed,
and written by (even learned Men, and this muft be written by fuch perfons, fare
for fome purpofe ; it is directed as a Petition to the King, and this Petition did come
to the hands of the King, Cfor the King produces it in Counfel,) and my Lord Arch-
biftiopandthe reft of the Bifliops owned their hands to it, then the queftion is, my
Lord, whether or no there be any room for any body living to doubt in this cafe that
this was not delivered by my Lords the Bifhops to the King, though it be not a con-
clufive Evidence of a pofitive Fadl, yet unlefs they fliew (bmething on the other fije,
that may give way for a fiippofition to the contrary, that it came out ot" their hands
by furprize, or that any body elfe delivered it to the King without their knowledge or
confent ; here muft needs be a very violent preemption, that they did do it ; and
xvhen nothing of that is (aid on their fide, can any Jury upon their Confciences fay
that it was not publifhed by them r1 and it being found in MtJdlefex, though it might
be written and competed in Surry, yet (urely we have given a convincing Evidence
that either they pubhfhed it or caufed it to be publiflied in MMlefex.
Pray call Mr. Graykam.
Cryer. He is gone out of the Hall.
Mr. Scl. Gen. My Lord, there is in Law a prefumprbn that is Evidence, though
there be no pofitive proof.
Sir Rob. Sawyer. But not in an Information for a Libel.
Mr. Sol. Gen. This is a meer queftion of Faft, there is no difficulty in the Law of
it at all, for it is plain, ifthele Lords or any of them did confent and agree to the pub-
lifhing of this Paper in MiJMefex, they are guilty of this Information, and whether
they are-guilty or not guilry, we do rely upon the Circumftances proved, which are
very violent ; Firft, that they were the Men that contrived and (et their hands to it,
and fb were the Authoursof it is undenyable; for they have owned it. Men of their
learning and parts never did any (uch thing in vain ; and then that they were concer-
ned in the publifhing of it in MiJdlcfex, we otter for proof that which was faid by
Mr. Pepfs and Mr. Blatb-wait, who though they do not come diretfly and exprefly to
the formal words of fuch a queftion, yet they tell you, efpecially Mr.Blathwait,
that they did apprehend it, and it was the Colle'lion of all their thoughts, and they,
took it for granted, as a thing that every body was fatisfipd in, that they did deliver
that Paper to the King. I muft confefs and agree there is no proof of the delivery of
it by my Lords the Bilhopsto the King, but we know very well, that it is no wonder,
when a Paper is Libellous, that Men ftiould ufe all the skill they can to publifli it
with impunity, and this is a thing that was done after fome rime of premeditation and
lerious Confutation ; for it was fome days after the Order for reading the Declara-
tion was published, that this was framed and delivered, and it concerned them to be
wary
(9?
wary, (as it feems they have been) ; but take this altogether, my Lord, the Paper be-
ing found in the King's Hands, it is in thefe Perfons Power, and it lies upon them to
make it out plain, what became of this Paper, which once lay in their own Handsand
Cuftody ^ they can give an Account of it, they can give Light unto it : If they do not,
I fhall fubmit to the Jury, whether this is not fufficient Evidence to Conviift them, efpe-
cially when being examined, they did not make that their Excufe, they never faid, this
Paper indeed we figned, but we did not intend to publifh it, we intended to ftifle it ^
that had been fome excufe : But for them to fay now, they did not piefent it to the
King, I muft fubmit to the Jury, whether they will believe upon this Evidence, that
thefe Lords the Bifliops did prefent it, or caufe it to be prefented to the King, then they
are guilty of this Matter : And I leave it to them and their Conferences, what they
will think upon th"e whole.
Mr. Recorder. My Lord, if your Lord (hip pleafe • —
Lord Chief Juftice. What, again ? Well, 'go on Sir Bartho. Shore, if we mult have a
Speech — —
Mr. Recorder. Nay, my Lord, I would not trefpafs upon your Lordlhip.
L.C.jKfl. Gentlemen of the jury, here is an Information againft my Lords the Bi-
fliops } 1 think I need not trouble my fdf to open all of it, becaufe I fee you are Men
of Underftanding, Men of great Diligence, and have taken Notes your felves fome of
you i therefore, 1 fay, only fomething of the Proof that is required in fuch a Cafe,
and of the manner of the Proof that has been given in this Cafe, and then tell you my
Opinion in Point of Law. Here is an Information brought by Mr. Attorny General on
behalf of the King, againft thefe Reverend Fathers of the Church, the Areh-Bifhop
and the reft ^ and it is for publilhing a Seditious Libel, under the pretence of a Petition,
in which are contained the words that are feen. Gentlemen, the Information is long,
it tells you, That the King, out of his Gracious Clemency to all his Loving Subject, and
for other Consideration?, had thought fit to publifh a Declaration of Indulgence, that
all his Loving Subjeds might have Liberty of Confcience, upon the 41 h of Jpril, in the
3^ Year of his Reign i and that this was fet forth by the King ; and that the King of his
farther Grace, about the i~,tb of Ayril then next following
Mr. Finch. I humbly beg your Lordfhips Favour.
L. C. Juft. What fay you, Mr. Finch ?
Mr. Finch. I ask your Pardon for breaking in upon you when you are directing the
Jury : I know 1 mould not do it, but I hope you will not be angry with me for it ?
Z.. C. Juft. If I thought you did any Service to your Client, I fhould willingly hear-
ken to you.
Mr. Finch. That which I humbly offer to your Lordfhip, is only to remember your
Lordfhip where we were.
L.C.Jujt. Goon, Sir.
Mr. Finch. \ would only fay this, my Lord, the Queflion is, Whether this be Evi-
dence, or no ?
L.C. Juft. I amforry, Mr- Finch, you have that Opinion of me> as to think I
mould not leave it fairly to the Jury.
Mr. Finch. I only fpeak it, my Lord, becaufe if it be Evidence, we have other Mat-
ter to offer in Anfwer to that Evidence, and in our own Defence.
L. C. Juft. If you have more to offer, why did you conclude here, and let me be-
gin to diredt the Jury ? but fince you fay you have other Matter to offer, we will
hear it.
Mr. S. Petnberten. My Lord, we fubmit to your Lordfhips direction.
L. C. Juft. No, no, you do not, you fay you have further Matter to offer.
Mr. Pollixfen. My Lord, we fhall reft it here.
L.C.Jufl. No, no, I will hear Mr- Finch ; Goon, my Lords the Bifhops fhall not
fay of me, that I would not hear their Counfel -t I have already been told of being
Counfel againft them, and they fhall never fay that I would not hear their Coun/el for
them.
Mr.S.Levinz,. My Lord, we befeech your Lordfhip goon with your Directions; for
all that Mr. Finch faiJ, was only that this was not fufficient Evidence.
L. C. Juft. No, Brother, he fays you have a great deal more to offer, and I will not
refufe to hear him ; the Court will think there was fomething more than ordinary,
therefore I will hear him, fuch a Learned Man as he fhall not be rcfufed to be heard
by me, Tie affurc you j Why don't you go on Mr. Finch ?
Bb Mr.
( 9+ )
••h. My Lord, I beg your pirdon for interruprirg you -, bi:t 3!! t!rt I
going to lay, would have amounted to no more than this, That there being r.c
donee agiinit us, we mult of courfc be acquitted.
' Mr. Juft. UoUoway. My Lord did intend to have faid as mnch as that, I dare fay.
L. C. Jnft. Well, Gentlemen of the Jury, we hive had Interruption enough
Mr. Son. Gen. My Lord, 1 inuft beg your Pardon for interrupting you now ; ar.d I
am very glad thefe Gentlemen have given us this Occafion, becaufe we /hail row
be able to clear this Point. There is a Fatality in fome Caufes my Lord, and fo t here
is in this, we rnuft beg your Patience for a very little while, for we have notice
that a Pcrfon of very great Quality is coming, that will make it appear, that they made
their Addrefles to him, that they might deliver it to the Kki;^.
L.C.juft. Well — You fee what comes of the Interruption, Gentlemen, now we
muft ftay
Then there v»u et Raufc for near half tin hoar.
Mr.Att.Gen. Pray, my Lord, put the Cafe that a Man writes a Libel in one Coun-
ty, and it is found in another, Is not he anfwerable, unlefs he can fbew fomerhinj
that may fatisfy the Jury how it came there ?
Mr. Sell. Gen. Ought he not to give an account what became of it ?
L. C. Juft. No : look you Mr. Attorney, you mud look to your Information, and
then you will find the Cafe that you put, does not come up to it •, It is for Writing, Com-
pofing, and Publiming, and caufing to be publifhed, and all this is laid in Middlesex ,
Now you have proved none of all t'liefe things to be done in the County.
Mr. Att. Gen. They did in Middlefex confefs it was theirs.
L. C. Jitft. Ay, but the owning their Hands is not a publication in Middlefex, and fo
I fiiould have told the Jury.
Mr. Finch. I beg your Lord/hip's pardon for interrupting you.
Mr. Att. Gen. But, my Lord, does it not put the Proof upon them, to prove hor? it
came out of their Hands into the King's Hands.
L. C. Juft. No, the Proof lies on your part.
tAr.Pollixjth, Pray, my Lord, give us your favour to difmifs us and the Jury.
Mr. Soil. Gen. My Lord, our Witnefles will be here prefently.
Mr. Att. Gen. Sure, ray Lord, the Prefujnption is on our fide.
Mr. Juft. Powell. No, the Prefumption is againft you, for my Lord Arch-Bifhop li-
ved in $nrry ; and it is proved was not out of Lambith-Houfe lince Michaelmafs, till he
came before the Council.
Mr. S. Pemb. Pray, good my Lord, we Hand mightily uneafy here, and fo do the
Jury, pray difmifs us.
Z.. C. Juft. I cannot help it, it is your own Fault.
— Then there wot another great Paitfe.
Lord Chief Juftice. Sir Sartho. Shore, now we have time to hear your Speech, if you
will.
Mr. Pollixfcn. My Lord, there is no Body come, nor I believe will come-
Mr. Soil. Gen. Yes, he will come prefently, we have had a MeiFenger from him.
C Call Mr. Graham. ]
Cryer. He is gone, and faid he would come prefently.
Mr. Sal. Gen. My Lord, he will bring our Witnefles with hi:;1
• Then there vns anethtr Pjafr.
Mr.
Mr. S. Pen.b. My Lord, this is very umifual to flay thus for Evidence.
L.Ch.Jufl. Itisfoj but I am lure you ought not to have any Favour. —
Mr. Solicitor, Are yon aflured that you /hall have this VVkncfs that you fpuTk of .? '
Mr. Soil. (Jen. Yes, my Lord, he will be here prefentiy.
L. Ch. Jufl. We have ftaid a great while already, and therefore it Is fit that we
fhouid have fome Oath made that he is coming.
Mr. Sol. Gen, The Cryer teils you, that Mr. Graham did acquaint him, that he would,
return prefently.
L. Ch. Jttii. Give him the Book.
Mr. Soil. Gen. Let your Lett-hand give your Right-hand the Oath.
Tht Ctyer fwo)"a.
L. Ch. J*ft. By the Oath that you have, taken, did Mr. Graham tell you, there was
any further Witnefs coming in this Cafe ?
Cryer. Yes, my Lord, he did:, he went out of the Hall, and returned when your
•Lorfhip was directing the Jury, and he asked me what the Court were upon ? and I
to!d him you were directing the Jury, and then he faid my Lord Sunderland was a
coming, but he would go and prevent him-, and afterwards he returned and finding
your Lordfhip did not go on to dired the Jury, he laid he would go again for my Lord
Snnderland, whom he had fent away, and he is now gone for him, and he faid he would
bring him with him prefently.
L. Ch.JuiL Well then, we muft ftay till the Evidence for the King comss, for
now there is Oath made that he is coming.
And after a confidcrable fan ft the Lord Prefident came.
Mr. Attar. Gen. My Lord, we muft pray that my Lord Prefident may be fworn in this
Cafe, on behalf of the King.
The Lord Prefident faorn.
Mr. Attar. Gen. My Lord, with your Lord/hip's favour, I would ask my Lord
Prefident a Qjieftion -, Your Lord/hip remembers where we left thisCaufe; we have
brought it to this Point, That this Petition came to the King's Hands,, that it is a
Petition Britten by my Lord Arch-bilhop, and.fubfcribed by the f eft of my Lords
the Bimops, but there is a Difficulty made, whether this Petition thus prepared and
written was by them delivered to the King,and whether my Lords the Rifhops were con-
cerned in the doing of it, and were privy or Parties to the Delivery : Now that which
I would ask your Lordfhip my Lord Prefident, i , Whether they did make their Ap-
plication to your Lordfhip to fpeak to the King.
Mr. Soil. Gen. Did they make their Application to your Lordfhip upon any account
whatfoever ?
L. Prefident. My Lord, my Lord Bifhpp of St. Atyh, and my Lord Bifhop of
Chickeftcr came to my Office, and told me, they came in the Names of my Lord
Arch-biihop of Canterbury, and four others of their Brethren and themfclves, with a
Petition which they defired to deliver tahii Majefty, and they did come to me to know
\vhkhwasthebettwayofdoing it, and whether the King would give them leave to
do it or not ? they would have had me read their Petition, but I refufed it, and laid,
I thought it did not at all belong to me, but I would let the King know their defire-,
and bring them an Anfwer immediately, what his pleafure was in it ^ which I did, I
acquainted the King, and he commanded me to let my Lords the Bifhops know, they
might come when they pleafed, and I went back and told them fo, upon which they
went and fetch'd the reft of the Bifhops, and when they came, immediately they went
into the Bed-Chamber, and into another Room where the Kbg was ; this is that I
know of the matter.
Mr. Soil. Gen. About what time was this, pray, my Lord ?
L. Prefident. I believe there could not be much time between my cooling from the
Kitjg, and their fetching their Brethren, and going in to the King.
Mr. Soil. Gen. They were with the King that day.
/.. Prefident. Yes, they were,
fr. Stll. Gen. Was this before they appeared in Council ?
L. Prefident. Yc«, it was feveral days before.
Mr. Sell. Gen. Then I think now, my Lord, the matter is very plain.
Mr. Juft. AUibone. Did they acquaint your Lordfhip that their buflnefs wSS to deliver
•a Petition to the King.
Bb 2, Z,.Pri-
L. Prtfident. Yes, they did.
Mr. Soil. Gen. And they would have had my Lord read it ( he fays. )
Mr- Attorn. Gen. And this was the fame clay that they did go in to the King.
L. Prefident. The very fame day, and I think the fame hour, for it could not be
much longer,
L. Ch. Jitft. Now it is upon you truly, it .will be prefumed to be the fame, unlefs
that you prove that you delivered another Pray, my Lord, did you look into
the Petition?
L. Preftdent. No, I refufed it, I thought it did not concern me.
Mr. Juft. Pored. Did you fee them deliver it to the King, my Lord ?
L. Prefident. 1 was not in the Room when it was delivered.
Mr. Juft. Poml. They did open their Petition to your Lordfhip, did they ?
L. Prefident. They offered me to read it, but I did refufe.
L.Ch.Juft. Will you ask my Lord Prefident any Queftion, you that are for the
Defendants ?
Sir-Rob. Stwyer. No, my Lord.
Mr. Sol. GCH. Then my Lord, we rauft beg one thing for the fake of the Jury, if
your Lordfhip can turn your felf a little this way, and deliver the Evidence you have
given over again that they may hear it.
L. Prefident. My Lord, I will repeat it as near as I can, I think I fhall not vary the
Senfe : The Bifhops of St. slfaph and Chichefter came to my Office, I do not know
juft the day when, but it was to let me know, that they came in the Name of the Arch-
bifliop and four other of their Brethren Is it neceflary I fhonld name them ?
L. Ch. Juft. Do it, my Lord, if you can.
L. Prefident. They were the Biftiops of Ely, Bath and WeUs, Brijiol, and Peter-
borough; they came to let me know, in the Name of the Arch-bifhop, thofe four and
themfdves, that they had a Petition to deliver to the King, if he would give them
leave ^ and defired to know of me which was the belt way to do it. I told them I would
know the King's Pleafure, and bring them word again : they offered me their Petition to
read, but I did not think it fit for me to do it, and therefore 1 refufed and would not
read it, but I went immediately to the King, and acquainted his Majelty with it, and
he commanded me to let them know they might come when they would, whic^i I imme-
diately did, they faid they would go and fpeak with fome of their Brethren that were
not far offi in the mean time I gave order that they fhould be admitted when they
came, and they did in a little time return, and went firlt into the Bed-Chamber,
and then into the Room where the King was-
Mr. Sol. Gen. And this was before they came and appeared at the Council.
L. Prefident. Yes it was.
Mr. PoliiKfin. Your Lordfliip did not read any thing of the Petition.
L. Prefident. No, Sir, I did not, I refufed it.
Mr. Pollixfeti. Nor does your Lordfhip know what Petition they did deliver te
the King.
L. Prefident. I did not know any thing of ft from them then.
L.'Cb.'juft. Now you may make your Obfervations upon this two hows hence;
'now we fhall hear what Mr. Finch had further to offer, I fuppofe.
Then my Lord Prefident went asvay.
Air. Sol. Gen. I think now it is very plain.
L.Ch.Jufl. Truly, I muft needs tell you, there was a great prefurnption before,
but there is a greater now, and I think I fliall leave it with fome effedt to the Jury, I
cannot fee but that here is enough to put the Proof upon you: they came to the Lord
Prefident^ and asked him how they might deliver a Petition to the King, he told them
he would go and fee whaj the King laid to it ; they would have had him read their
Petition, bur he refufed it i he comes and tells them the King faid they might come
when they would •, then thofe two that came to my Lord Prefident went and gathered
up the other four (the Arch-bifhop indeed was not there ) but they fix came, and
my Lord Prefident gave Direction they fhould be let in, and they did go into the
Room where the King was v now this, with the King's producing the Paper, and their
owning it at the Council, is fuch a Proof to me, as I think will be Evidence to the
Jury of the Publication.
Mr« Pollixfcn. Then my Lord thus far they only can go, tfce Arch-bifhop was not
there, arid fb there is no Evidence againft him.
Mr. So/. Gen. As to the Writing, we haye girea Proof againft him, for it is all his
Hand. Mr.
( 97 )
Mr. ToUixfen. That ftill is in another County, and there is nothing proved to be
done by my Lord Arch-Bifhop in Middlefex, and next, for the other fix Lords, mr
Lord Prefident does not lay that this is the Petition that they faid they had to deliver
to the King ; nor did he fee them deliver any thing to the King, but that is left ftill
doubtful, and under your Judgment, fo that it ftands upon Prefumption, not upon
Proof, that this is the fame and left under Confideration.
Mr. After. Gen. Then we will leave it fairly to the Jury upon this Faft.
Mr. Pottixfen. If fo, then we defire to be heard in our Defence.
Sir Rob. Satpyer. May it pleafe your Lordftiip, and you Gentlemen of the Jury, you
have heard this Charge which Mr. Attorny has been pleafed to make againft my
Lords the Bilhops, and that is this, That they did confpire to diminilh the Royal
Authority, and Regal Prerogative, Power, and Government of the King, and to avoid
the Order of Council, and in profecution of this, they did falfely, malicioufly and fe-
ditioufly make a Libel againft the King, under pretence of a Petition, and did publifli
the fame in the King's prefence.
This, Gentlemen, is a very heinous and heavy Charge ; but you fee how fliort their
Evidence is ^ The Evidence they bring forth is only, that my Lords the Bifhops pre-
fented the Paper to the King in the moft private and humble manner they could, that
which they have been fo many hours a proving, and which they cry up to be as ftrong
an Evidence as ever was given, proves it to be the fartheft from Sedition in the do-
ing of it that can be •, and you fee what it is, it is a Petition to be relieved againft an
Order of Council, which they conceive they were aggrieved by, they indeed do not
deal fairly with the Court nor with us, in that they do not fet it forth that it was a
Petition.
L. Ch. Jujl. That was over-ruled before.
Sir Rob. Saayer. I do not infill upon it now, fo much an Exception to the Infor-
mation, atj do to the Evidence j they fet this forth to be a fcandalous matter } but
it only contains their Reafons, whereby they would fatisfy his Majefty why they
cannot comply in a Concurrence with his Majefty's Pleafure •, and therefore they
humbly befeech the King, and beg and requeft him ( as the words of it are ) that his
Majefty would be pleafed not to infift upon their diftributing and reading of this
Declaration ; fo the Petitioners on behalf of themfelves, and the whole Clergy of
England^ beg of the King that he would pleafe not to infift upon it.
Gentlemen, you may obferve it, that there is nothing in this Petition that contains
any thing of Sedition in it, and it would be ftrange this Petition fhould be Fslo de fe,
and by one part of it deftroy the other, it is laid indeed in the Information, that it was
with intent and purpofe to diminilh the King's Royal Authority, but I appeal to your
Lordmip, the Court, and the Jury, whether there be any one word in it, that any way
touches the King's Prerogative, or any tittle of Evidence that has been given to make
good the Charge-, It is an Excnfe barely for their non-Complyance with the King's
Order, and a begging of the King with all Humility and Submiffion, that he would
be pleafed not to infift upon the reading of his Majefty's Declaration upon thefe
grounds, becaufe the Difpenfing Power upon which it was founded, had been feveral
times in Parliament declared to be againft Law, and beqaufe it was a Cafe of that
Confequence that they could not in Prudence, Honour or Confcience concur in it.
My Lord ; Mr. Attourny has been pleafed to charge in this Information, that this is a
falfe, malicious and feditious Libel : both the falfity of it, and that it was malicious
and feditious, are all Matters of Fad, which with Submiffion they have offered to the
Jury no proof of, and I make no queftion but eafily to demonftrate the quite
contrary.
For, my Lord, I think it can be no queftion, but that any Subject that is Commanded
by the King to do a Thing which he conceives to be againft Law, and againft his Con-
fcience, may humbly apply himfelf to the King, and tell him the Rcafon why he does
C c not
( 98 )
rot that thing he is commanded to do, why he cannot concur with hib Majefty in luch a
Comfliarx).
My Lord, tltat which Mr. Attorney did iofift upon in the beginning of this Day (and
he pretended to cite feme Cafes for it) was, that in this Cafe, my Lords the Bifhop?,
were not iBcd ;'.s. Biftiops, nor profecuted for their Religion : truly, My Lord, J do not
know wluc they are fued for elfe ; the Information is again!! them as Bifhops, it is for an
Ad they did as Biihops, and no oiherwife •, and for an Act they did and do conceive
they lawfalty might do with relation to their Ecclefiaftical Polity, and the Government
of their People as Bifhops.
The next thing that Mr. Attorney offered was, that it was not for a Non-feafance, but
for a Feafance ; it is true, my Lord, it is for a Feafance in Baking of the Petition, but it
wastoexcufea Non-feafance, the not reading according to the Order, and thisfure was
lawful for all the Biihops as Subjects to do \ and 1 fliall fhew-it was certainly the duty of
•my Lords the Bifhops, or any Peer of the Realm to do the fame in a jike Cafe. It was
likcwife faid, they were profecuted here for aflroptiog the Government, and intermcd-
ling with Matters of State \ but I beg your Lordlhipand the Jury to conCder, whether
there is one tittle of this mentioned in the Petition, or any Evidence given of it ;
the Petition does not meddle with any thing of any Matter of State, but refers to an
Ecclefiaftical Matter, to be executed by the Clergy,- and to a Matter that has relation to
Ecclefiaftical Caufes -, fo that they were not Bufybodies, or fuch as meddled in Matters
that did not relate to them, but that which was properly within thtir Sphere pud
Jurifdiction.
But after all, there is no Evidence, nor any fort of Evidence that is given, by Mr.
4i torney, that will maintain the leaft tittle of this Charge -, and how he comes to leave ifc
upon this fort of Evidence I cannot tell, all that it amounts to is, That my Lords thd
•Biihops being greived in this manner, made thh Petition to the King in the molt private
and rcfpectful manner ; and for him to load it with fuch horrid black Epithets^ that it
•was done Libelloufly, MaliciouQy^ and Scandaloufly, and to oppofe the King and Go-
vernment, 'tis very hard, 'tis a Cafe of a very extraordinary Nature, and I believe my
Lords the Bifhops cannot but conceive a great deal of trouble, that they mould lie
under fo heavy a Charge, and that Mr. Attorney fljould draw, ibfevere an, JLafpttnaflon
againft them, when he has fo little Proof to make it out.
My Lord, by what we have to fay to it, we hope we fliail giye yDur.Lordftiip and the
Jury Satisfaction, that we have done bbt our Duties, fuppoliag here has bec^ a fuffici-
ent Evidence of the Fact given, winch we leave to your Lord/hip and the Jury.
• My Lord, we fay iji fhort, That this Petition is no more than what any Man if he be
Commanded to do any thing, might humbly do it, and not be guilty of any Crime:
And, my Lord, as to the Matter of our Defence, it will contift of thefe 'Heads }
We fhall Confider the Matter of this Petition.
• ,
Secondly, The Manner of the delivering it, according as they have given Evidence
here ; and,
Thwdiy, the Perfons that have delivered this Petition. And we hope to make it ap-
pear, beyond all quelrion, that the Matter contained in this Petition, is neither falfe, ncr
contrary to Law, but agreeable to all the Laws of the Land in ail Times. We fliail
Irkewife mew you (though that appear foffiiiently to you already) that the Manner of
delivering it was fo far from being Seditious, that it was in the inoft fecret and private
manner, and with the greateft Humility and Duty imaginable. And then as to the
Perfons, we (hall (hew you that they are not fuch as Mr. AttorTty feys, who meddle,
with Matters of State, that are out of their Sphere, but they are Perfons concerned, and
concerned in Intereft in the Cafe, to make this humble application to the King. And
when we have proved all this Matter, you will iee how ftrangely we are blackned with-
Titles and Epithets which we noways deferve, and of which, GocH>e thanked, there is
no Proof.
For my Lord, for the Matter of the Petition, we fliaUcoafidcr two thi
))
Vfie Firft is, The Prayer, wliichis this, They humbly beg and defire of the King, on
Jbehalf of themfelves and the reft of the Glergy,that he would not infill upon the Read ,
ing and-Pnblifhing of. this Peclaration.
Surely, ray Lord, there is nothing of Fallky in this, nor any thine that is contrary
to Lawyer unlawful for any Man that is preued to any thing, efpecialiy, by an Order
of Council i and, this is nothing but a Petition againft an Order of Council, and if
thera b£ an: Order that commands my Lords the Biihops, to do a thicg that il-ems
grievous fo them, furely they may beg of the King that he would not iniiit upon
it.
cjAnd for this Matter, they were fo well fatisfied about it, a^d 4b far from thinking,
that it was any part of a Libel, that they left it out of. the Information^, and fo bava
inade a deformed and abfurd Story of it, without Headoc Tail, a Petition directed to
BO Body,, and for nothing, it being withotit both Title and Prayer ; fo that.this is plajn^
is was lawful to:Petition.
; Then, my Lord, the next.Thirig is, the Reafoos which >my Lords the Bifhops come
to acquaint the King with, why, in Honour, and. Contfcieocey they cannot comply with»
and give obedience to this Order } aad the R^afens, my Lord, are two.
'
: The firft Reafon that is afligned, is, the fercrfil Declarations that have been in Par-
liament, (feveral of which are mentioned ) that fuch a Power to difpenfe with the
Law, is • againft Law, and that it could not be done but by an Aft of Parliament, for
that is thpmeanipgof the word Hiigal, that has no other fignifjcation, but unlawful ^
the fame yfrord in point of Hgnificatwn with the wordJ&wwe, which they have u fed in.
their Information^ a thing that cannot be done by Law ; and this they are plcafed to tell
the King, > riot as declaring tbeir own Judgments, but what has been declared in Par-
liament ^ thobgh if they had done the former, they being Peers of the Realm, and Bi-
fhopsof the Church, are bound to underftand the Lawsr efpecially when (as I fhaH
come to (how you) they are made Guardians of thefo Laws; and if any thing go
famifs, an* contrary to thefe Laws, they ought to inform the King of it.
. My Lord, tha next thing is.> Becaiife it is a Tfcing of fo great moment, and the Con*
feq.flences that will arife from their pubtimingi of this Declaration, and that too, my
Lord, ( for the latttr 1 mall begin firft with ) there, can be no Queliion about, or any
pretence that this -is libeflons or falfe, for certainly it is a Cafe of the greateft Confe-
guence to the whole Nation that eyerwasL therefore it cannot be falCe or libellous to
lay fo.
t: My Lordvl^ouldnotmentkxithisvfoplamlothto coucli upon things of this Na-
ture, had not the Information it felf made, it the very Gift of the Charge;-, fpr the In*'
•formation ( if there be any thing in it ) feys, that it was to diminifh the King's Prero-
gative and Regal Power in poblifhing that Declaration.
Now,my Lord, what the Confequence of thiswould be,and what my Lords the Bimops
flieant by faying. It wars a Caufe of great Moment, will appear, by confidering that
which i* the main Claufe in the Declaration, at which my Lords the Bifhops fcrupkd,
which is the main Stumbling-block to my Lords, and has been to many honeft Men be-
dides, and that is this.
" We do likewife declare, It is our Royal Will and Pleafure, that from hence- forth
<** the E-xecotion Of all and ail hlanner of Penal Laws, in Matters Ecclefiaftical, for jion
Dooming to Oharchy»r not«ceiving the Sacrament, or for any other Nonconformity to
f* the Religion Eftablifted t, or for or by Reafon of the Exercife of ReUgion in any man-
," ner tv hacfoever, be imrnediately fufpended ^ and the further execution of the faid Pe*
•a nal Laws, and every O^tlwm, is hereby fufpended.
.
Now, my Lord, tfcis Cfelufe either is of fome legal Effect
and Signification, or it is not. If Mr. Attorny, or the King's Here the Lord Chief
aCoundl, 'xiafay k is of n» Effeft in Lavr, then there is no Juftice fpeakjng aiide
harm done, then this Petition does no ways impeach the faid.
King's Prerogative, in faying, it has been declared in Par-
liament^ according as the King's Counfel do agree the Law L.C.Juft. Imuftnot
to b«. ^ fi<jffr this, they intend to
But, my Lord, if it have any Effect in Law, and thefe Laws difpHte the Kings fevef
are fufpended by virtue of this Claufe in the Declaration, eff*ffei*fy% Law.
Cc z then Mr.
Mr. Juft. towtl. My then certainly, my Lord, it is of the moft difmal Confc-
Lord, thty mujt neceffa- quencc that can be thought of, and it behoved my Lords,
rily fall Kfon that Point; who are the Fathers of the Chnrch, humbly to represent it to
ftr if the King hath no the King.
fitch Porter, (as clearly For, ray Lord, by this Declaration, and particularly by
he hath not in my Judg- that Claufe in it, not only the Laws of our Reformation, but
mtfit) the natural Con- all the Laws for the prefervation of the Chriftiaa Religion
fequence will be, that th'a in general are fufpended, and become of no force \ if there
Petition it no diminution be fuch au Effcft in Law wrought by this Declaration as is
ef the Kintft Regal Pow- pretended, ( that is ) that the Obligation of Obedience to
«r, and fo not feditiftu them ccafeth, the Reafon of it is plain, the words cannot ad-
ar Hbelleuf. in it of fuch a Quibble as to pretend, that the Execution of
L. C. Juft. Brother, 1 the Law is not the Sufpending of the Law, and that the Su-
know you are full of {pending the Execution of the Law, is not a Sufpending of
that Detinue ; but how- the Law -, for we all know the Execution of every Law, in its
ever, my Lords the Bi- primary Intent, is Obedience to it, that of the Penalty
flops fiall have no oc- comes in by way of Punilhment and Recompence for their
cafion to fay, that I de- Difobedience.
iy to hear their Counfel. Now, my Lord, if this Declaration does difcharge the
Brother, you fliall have King's Subjects from their Obedience to, and the Obligation
your Will for once, 1 mil from, thofe Laws : then pray, my Lord, where are we ?
hear them, let them talk. Then all the Laws of the Reformation arc fufpended, and the
nil they are weary. Laws of Chriftianity it felf, by thofe latter words, C or for, or
Mr. Juft. Ptvel. I by reafon of Religion in any manner whatsoever 3 fo that it
defre no greater liberty is not confined to the Chriftbn Religion, but all other Reli-
to be granted them than gions are permitted under this Claufe •, And thus all our
what in Juftict the Court Laws for keeping the Sabbath, and which diftiDguifh us from
ought to grant, that is, Heathens, will be fufpended too.
to hear them in defence of My Lord, this is fuch an Inconvenience as ( I think) I
their Clients. need name no more j and it is a very natural Confequence
from that Claufe of the Declaration, it difcharges at once all
Minifters and Clergy-men from performing their Duty in reading the Service of the
Church, it difcharges thek Hearers from attending upon that Service.
When a Law is fufpended, the Obligation thereof is taken away -, and thofe that be-
fore thought themfelves bound to obey, now conclude they are not fo obliged > and
what amifchief that will be to the Church, which is under the Care of my Lords the
Bifhops, your Lordfhip will eafily apprehend.
Thefe things, my Lord, I only mention, to fhew the great and evil Confequences
that apparently follow upon fuch a Declaration, which made my Lords the Bifhops de-
cline obeying the Order, and put them under a neceffity of applying thus to the King,
to acquaint him with the Reafons why they could not comply with his Commands, to
read this Declaration to the People, becaufe the Confequences thereof were fo greati
it tending naturally to lead the People into fo great an Error, as to believe thofe Laws
were not in Force, when in Truth and Reality they are ftill in Force, and continue t«
oblige them.
And that being the fecond Reafon in this Petition> I come next to confider it, to
wit, that the Parliament had often declared this pretended Power to be Illegal, and
for that we (hall read the feveral Records in Parliament mentioned in their Petition,
and produce feveral Ancient Records of former Parliaments that prove this Point ;
and particularly in the Time of Richard the Second, concerning the Statute of Provi-
fors^ where there were particular Difpenfations for that Statute, the King was enabled
to do it by Aft of Parliament, and could not do it without.
L. C.Juft. Pray, Sir Robert Stvtyir, goto your Proofs, andrcfcrve your Argumenti
till afterwards.
Sir Rob. Sawyer. My Lord, I do but fcortly mention theic things-, fb that, my Lord,
as to the Matter of this Petition, we fliall fhew you, that it is truq and agreeable to the
Laws of the Land.
Then
Then, my Lord, as to the manner of delivering it, I need lay no more, but
that it is plain from their Evidence,that it was in the moft private and humole man-
ner. And, as my Lord Prefident faid, Leave was asked of the King, for them
to be admitted to prefent it : Leave was given, and accordingly they did it
We come thtn, my Lord, to the third thing, the Perfons, thefe noble Lords ;
and we lliall [hew, they are not Bufie-Bodies, but in this Matte, have done their
Duty, and medlcd with their own Affairs. That, my Lord, will appear,
Firft, By the general Care that is repofed in them by the Law or the Land :
They are frequently in our Books, called the King's Spiritual Ju:ges } they arein-
trufted with the Care of Souls, and the Superintendency over all the Clergy is
their principal Care.
But, be.ides this, my Lord, there is anothsr fpecial Care put upon them, by
the exprefs Words of an Act of Parliament ; for, over and above the general
Care of the Church, by virtue of their Offices as Bifhops, the Aft of i £/<£.
cap 2. makes them fpecial Guardian- of the Law of Uniformity, and of that
other Law in His Late Majefty's Reign ; where all the Clmfes of that Statute of
i Eliz.. are revived, and made applicable to trie prefent State of the Church of
Now in that Statute of i Eliz.. there is this Claufe.
And for the due Execution hereof, the Queen's Moft Excellent
the Lords Spiritual and Temporal, and all the Commons in this prefent
Parliament ajff ml led, dfl, in God' s Name, earnejily require and charge all
tix drchbijhvfs, and Bijhbptt and other Ordinaries, that they do endea-
vour tbemjetves, to the utmojt oj their Knowledges, that the due and true
Execution hereof may le had throughout their Uiocejfes and Charges, as
they faiU 'a,nfmer lefert God, jor Juch Evils and Plagues, wherewith Al-
mighty Goat may jujlly punijb his People, for neglecting thu good and ivhol-
Jame Law.
This is the Charge that lies upon the Biftops, to take care of the Execution of
that Law ; and I fha'l pray by and by, that it may be read to the Jufy.
Mr. Soil. Gen. That is very well, indeed ! To what purpofe?
Sir Rob. Sawyer, So that, my Lord, by this Law it is plain, that my Lords the
BiJhops, upon pain of bringing upon themfelves the Imprecation of this Adt of
Parliament, are obliged to fee ic executed ; and then, my Lord, when any thing
comes under their Knowledge, efpecia'.ly if they are to be Adtors in it, that has
fuch .1 tendency to deilroy the very F ,und ttions ot the Church, as the Sufpenflon
of all the Laws that relate to the Church mult do, it concerns ttrem that have no
other Remedy, toaddrefstheKing, by Petition, about it.
For that, Mr. Attorney, my Lord, has agreed, That if a proper Remedy be
purfued in a p oper Court, for a Grievance complained of, though there may be
many hard Words that elfc would be fcandalous, yet, being in a regular Courfe,
they are no Scandal And fo it is faid in Lake's Cafe, in my Lord Hobbart.
My Lord, we muft appeal to the King, or we can appeal to no body, tobe
relieved againft an Order of Council, w ith which we are aggrieved ; and it is our
Duty fo to do, according to the Care that the Law hath placed in us.
Belides, my Lord, the Bimops were commanded by this Order, to do an Aft
relating to their Ecclefiaftical Fundlion, to diftribute it tobe read by their Cler-
gy : And how could they in Confcience do it, when they thought part of the L)e-
cjaration was not according to Law ?
Pray, my Lord, What has been the reafon of His Majefty's confulting of his
Judges? And if His Majelly, or any the great Officers, by his Command, are
about to do any thing that is contrary to Law, was it ever yet an Offence to tell
the King, fo ? I always look'd upon it as the Duty of an Officer or Magiftrate, to
tell the Km<; what is Law, and what is not Law.
In Cavenaith's Cafe, in the Queen's time, there was an Office granted of the Re-
torn of the Writs of Superfedeas in the Court of Common Pleas ; and he comes to
the Coim, and defires to be put into the pollelTion of the Office : The Court told
him, They c.onld do nothing in it, but he mult bring his Aflize. He applies to the
Queen, and fhe fenc'.s, under the Privy S-al, a Command tofequeller the Profits,
and to take Security to anfwer the Profits, as the Judgment of the Law fhouki go :
O d But
the Judges there return an Anfwer, That it was againft Law, and they could
not do it Then there comes a fecond Letter, reciting the former, and comman-
ding their Obedience: The Judges returned for Anfwer, They were upon their
Oaths and were i'worn to keep the Laws, and would not do it.
My Lord, The like was done in the time of my Loid &Ut*p : We h.ive it
reported in xWo/;/;, in a Cafe where a Prohibition had gone •, There came a Meil
fa'ge trom Cojrt, that a Consultation fhpuld be granted ; ai d that was a Matter
wherein there were various Opinions, whether it was bx Nectffirtta, or Difcre-
tionary , but there they return'd, That it was againlt Law, for any fuch Metfage
to be fent.
Now here, my Lord, is a Cafe full as ftrong: My Lords the Bifhops were
commanded to do an Aft, which they conceived to be againlt Law, and they de-
cline it, and tell the King the reafon } and they have done ic in the inoft humble"
manner that could be, by way of Petition. If they had done (as the Civil Law
terms it) Re [where generally, that had been lawlul i but here they have done IE
in a more refpcftful manner, by an humble Petition. If they had faid the Law was
other wife, that furc had been no Fault i but they do not fo much as that, hut they
only f.y, it was fo 'declared in Parliament -, and they declare it with all Humility
and Dutifulncfs. So that, my Lord, if we conlider the Perfons of the Defendants,
they have not afted 33 Bulie-Bodies j and therefore, as this Cafe is, when we have
given our Evidence, here will be an Anfwer to all the Implications of Law, that
are contained in this Information: For they would have this Petition wwfc by
Implication of Law, to make a Libel of it ; but by what I have faid, it will ap-
pear, there was nothing of Sedition, nothing of Malice, nothing of Scandal in it i
nothing of the Salt, and Vinegar, and Pepper, that they have put into the Cafe.
We (hall prove the Matters that I have open'd for our Defence, and then, I dare
fiy, yourLordfhip and the Jury will be of Opinion, we have done nothing but
' Mr. Finch, May it pleafe your Lordfhip, and you, Gentlemen of the Joiry, This
Information fets forth (as you may obferye upon opening it) that the King ha-
ving, by his Royal Prerogative, fet forth his Declarations that have been read, and
made an Order of Council for the Reading the faid Declarations in the Churches ;
and that the Archbilhop and bilhops, mould feverally fend them into their Diocef-
ies, to be read i my Lords the Bifhops, that are the Defendants, did confult and
confpire together to diminifh the Kingly Authority, and Royal Prerogative of the
King, and his Power and Government in his Regal Prerogative, in letting forth
his Declaration ; and that, in profecution of thas Confpiracy, they did contrive
(as it was laid in the Information) a malicious, feditious, fcandalous, falfe, and
feigned Libel, under pretence of a Petition, and fo fet forth the Petition ; and that
they published the Petition in the prefence of the King.
To this Charge in the Information, Not Omby being pleaded, the Evidence that
hath been given for the King, I know hath been oblerved by the Court and the
Jury, and I know will be taken into Conlideration, how far it does come up to
the Proof of the Delivery of this Petition .by my Lords the Eifhops j for all that
was faid till my Lord President was pleas'd to come, was DO Evidence of any De-
livery at all i and my L^ord Present's Evidence is, that they were going to deli-
' • ver a Petition \ but whether they did deliver it, or did it not, or what they did de-
liver, he does not know. This is all the Evidence that has been given for the
Kin".
But fuppoflngnow, my Lord, that there were room to prefume that they had
delivered this Petition fet forth in the Information, let us confider what the Qpc-
llion is between the King and ray Lords the Kifliops : The Queftion is, Whether
they are guilty of Contriving to diminifh the King's Regal Authority, and Royal
Prerogative, in his Power and Government, in fettmg forth this Declaration ?
Whether they are guilty of the making and prefenting a malicious, feditious and
fcandalous Libel ; and whether they have publifhed it, as it is faid in the Informa-
tion, in the King's Prefence ?
So that the Queftion is not now reduced to this, Whether this Paper, that is fet
forth in the Information, was delivered to the King by my Lords the Bifhops j
but whether they have made a malicious, feditious and fcandalous Libel, with an
Intent to diminifh the King's Royal Prerogative, and Kingly Authority ? And
then, if you, Gentlemen, fhould think that there is Evidence gi?eu, fufficient to
prove
prove that my Lords the Bifhops have delivered to the King that Paper which is
lee forth in the Information •, yet, unlefs they have delivered a falfe, malicious^
feditious and fcandalous Libel ; unlefs they have publifhed it, to ftir up Sedition
rnthe Kingdom ^ and unlefs they have contrived this by Confpiracy, to diminifh
the King's Royal Prerogative and Authority, and that Power that is faid to be in
the King, my Lords the Biftopsare not guilty of this Accufation.
There are in this Declaration feveral Claufes, which, upon reading o£ the In-
formation (1 am fure) cannot but- have been obferved by you, Gentlemen of the
Jury v and one fpecial Claufe hath been by the Council already opened to you, and
1 Qia 11 not enlarge upon it.
My Lord, This Petition that is thus delivered to the King, if it be a Libel, a
fcandalous and feditious Libel (as the Information calls it) it mult be fo, either
for the Matter of the Petition, or for the Perfons that delivered the Petition, or
for the manner of their prefenting and delivering it : But neither for the Matter,
Dor for the Perfons, nor for the manner of prefenting it, is there any Endeavour to
dim nifh the King's Royal Prerogative, nor to ftir up Sedition, nor Reflection upon
the King's true Royal and Kingly Authority.
The Petition does humbly fet forth to His"Majefty, that there having been fuch
a Declaration, and fuch an Order of Council, they did humbly reprefent to His
Majefty, that they were not averfe to any thing commanded them in that Order^
in refpeft to the juft and due Obedience that they owed to the King, nor in rs-
fpeft of their want of a due Tendernefs to thofe Perfons to whom the King had
been pleafed to (hew his Tendernefs } but the Declaration being founded upon a
Power of Difpenling, which had been declared illegal in Parliament feveral times,
and particularly in the Years 1662, 72, and 85. they did humbly befeech His Ma-
jefty ( they not being able to comply with his Command in that matter ) that hfc
would not infift upon it.
Now, my Lord, Where is the Contrivance to diminifh the King's Regal Autho-
rity, and Royal Prerogative ?
This is a Declaration founded upon a Power of Difpenfirig, which undertakes
to fufpend all Laws Ecclefiaftical whatfoever \ for not Coming to Church, or noc
Receiving the Sacrament, or any other Nonconformity to the Religion eftablifhed^
pr for or by reafon of the Exercife of Religion in any manner whatfoever } Or-
dering that the Execution of all thofe Laws be immediately fufpended, and they
are thereby declared to be fufpended •, as if the King had a Power to fufpend at
once aU the Laws relating to the eftablifh'd Religion, and all the Laws that were
made for the Security of our Reformation. Thefe are all fufpended by His Maje-
Ity 's Declaration (as it is faid) in the Information, by virtue of his Royal Preroga-
tive, and Power fo to do.
Now, my Lord, I have always taken it, with Submiflion, that a Power to
abrogate Laws, is as much a part of the Legiflature, as a Power to make Laws :
A Power to lay Laws afleep, and to fufpend Laws, is equal to a Power of Abro-
gating them ; for they are no longer in Being, as Laws, while they are fo laid
afleep, or fufpended : And to abrogate all at once, or to do it time after time,
is the fame thing \ and both are equally parts of the Legiflature.
My Lord, In all the Education that I have had, in all the fmall Knowledge of
the Laws that I could attain to, I could never yet hear of, or learn, that the Con-
ftitution of this Government in England was otherwife than thus, That the whole
Leg! fUcive Power is in the King, Lords and Commons \ the King, and his twtf
Houfes of Parliament. But then, If this Declaration be founded upon apart of
the Legiflature, which muft be by all Men acknowledged, not to refide in the
King alone, but in the King, Lords and Commons, it cannot be a legal arid true'
Power, or Prerogative.
This, my Lord, has been attempted, but in the laft King's time ; it never was
pretended till then ; and in that firft Attempt, it was fo far from being acknow-
ledged, that it was taken notice of in Parliament, and declared againtt : So it was
in the Years 1662. and 1672.
In the Year — 62. where there was but the leaft Umbrage given of fuch a Dif-
penfing Power ; although the King had declared, in his Speech to the Parliament,
that he wifhed he had fuch a Power, which his Declaration before feemed to af-
fume \ the Parliament was fo jealous of this, that they immediately made their
Application to His Majefty, by an Addrefs againft the Declaration ^ and they give
Reafoas
[104.] '
Reafons againft it, in their Addrcfs : On.-, in particular, was, Th*t the King could
not dtfpenft: wtth tbojc LAWI, n/< wm <-nt.
There was another Attempt in 1672. and then, after His Majefty had, in his
Speech, mentioned IMS Declaration to mem, the Parliament there again, particu-
larly the Houfe of Commons, did humbly addrefs to His Majefty; letting forth,
that this could not be done by Law, without an Aft of Parliament : And your
Lordinip, by and by, upon reading the Record, will be fatisfied what was the
Evmt of all this His Majefty himfelf was fo far pleafed to concurr with them in
that Opinion, that hecancell'd his Declaration, tore off the Seal, and can fed it
to be nride known to the Houfe of Lords, by the Lord Chancellor , who, by
His Majefty's Command, latisfied the Houfe of it, that His Majefty had broken
the Seal, and cancoU'd the Declaration ^ with this further Declaration, which .s
enter'd in the Records of the Houfe, That it jliould never be drawn into Example^ or
Confluence.
My Lord, The Matte* ftanding thus, inrefpeft to the King's Prerogative, and
the Declarations that had been made in Parliament i conlider next 1 befeech you,
how far my Lords the BHhops were concerned in this Queltion, humbly to make
their Application to the King.
My Lords the Bifliops lying under a Command to publifh this Declaration, it
was their Duty, as Peers of the Realm, and Bilhops of the Church of England,
humbly to apply themfelves to His Majelty, to make known their Reafons, why
they could not obey that Command ••, and they do it with all Submillion, and all
Humility, repreftnting to His Majefty what had been declared in Parliament \ and
it having been fo declared, they could not comply with his Order ; as apprehen-
ding jthat this Declaration, was founded upon that which the Parliament de-
clared to be illegal •, and fo His Majeiry's Command to publiih this Declaration,
would not warrant them fo to do. This they did, as Peers , and this they had a
Right to do as Bifhops \ humbly to advife the King.
For, fuppofe, my Lord, (which is not to be fuppofed in every Cafe, nor do I
fuppofe it,in this ; bu£ fuppofe that there might be a King of En^Lnd tnat ihould
bemif-led},) (Idctnot fuppofe that to be. the Cafe now, 1 fay, out I know ic
hath been the Cafe formerly ) that the King fhould be environed with Counfellors
that had given him evil Advice } it has been objected as a Crime againft fuch evil
Counfellors, that they would not permit and fufFer the Great Men of the King-
dom to offer the King their Advice How often do we fay in Weftminfter-HaUt
That the King is deceived in his Grant ? There is fcarce a Day in the Term, buc
it is faid in one Court, or other \ but it was never yet thought an Offence to fay
lo : And what more is there in this Cafe?
My Lord, If the King was mif-informed, or under a Mif-apprehenflon of the
Law, my Lords, as they are Peers, and as they areBiihops, are concerned in it \
and if they humbly apply themfelves to the King, and offer him their Advice,
where is the Crime ?
My Lord, Thefe noble Lords, the Defendants, had more than an ordinary Call
to this i for, befides the Duty of their Office, and the Care of the Church, that
was incumbent on them as Bilhops, they were here to become Aftousi for they
were, by that Order of Council, commanded themfelves to publifh it, and to di-
ftribute it to the /everal Minifters in their feveral Dioceiles, with their Commands
to read it : Therefore they had more than ordinary Reafon to concern themfelves
in the Matter.
Next, We are to conlider, my Lord, in what manner this was done •, They make
their Application to the King, by aa humble Petition, with all the Decency and Re-
fpeft that could be (hewn } asking leave, firft, to approach his Perfon ; and having
leave, they offer'd my Lord Prelident the Matter of their Petition, that nothing
might feem hard, or difrefptdful, or as if they intended any thing that was unfic
to be avowed. When they had taken all this Care in their Approach, and beg-
ging leave for it, they come fecretly to the King, in private, when he was all alone,
and there they humbly prefentthis Petition to His Majefty. Now, how this can
becallei the Publication of a malicious and feditious Libel, when ic was but the
Prefemingof a > etition to the King alone : And ho wit can be faid to be with an In-
tent to ftir up Sedition in the People againft His Majefty, and to alienate the
Hearts of his People rrom him, when it was in this private manner delivered to
him himfelf only, truly, I cannot apprehend.
My
My t .oi'd, I hope nothing of this can be thought an Offence : If the Jury fhor,''d
think that there has been Evidence fufrkier.t given, to prove that my Lords the
ttifhops did deliver this Paper to the King, yet rim is not enough to make them
guilty of this Information, uniefs this Paper be likewife found to be in Diminu-
tion of the King's Royal Prerogative, and Regal Authority, in difpenling with,
and fufpending of all Laws, without Aft of Parliament : Uriiefsit be found to be
a Libel againlt the King, to teil him, That in Parliament it was fo and fo declared :
And uniefs the prefenting this by way of Petition (which is the Right of all Peo-
ple that apprehend themfelves aggrieved, to approach His Majefty by Petition)
be a Libelling of the King : And uniefs this huaible Petition, iii this manner pre-
fented cothe King in private, may be fa-id to be a malicious and feditious Libel ^
wirh an Intent t6 ftir up the People to Sedition: Uulefsall this can be fpur.d,
there is no Man living can ever find my Lords the Bilhops guilty upon this Infor-
mation. Therefore, my L,ord, we will go on, and make out this Matter that
we have opened to your Lordlhip, if Mr. jinorneyj and Mr. Solicitor think fit to
argue the Points that we have opened.
Mr.Pollixfett. Pray, my Lout, fpare me a Word on the fame Side. For the
firft Point, It is a Point of Law, whedier the Matter coatained in this Petition be
a Libel. The King's Council pretend it isfo, becaufe it faySj the Declaration is
founded upon a Power the Parliament has declared to be illegal. But we fay,
that whatibever the King is plcafed to fay in asy Declaration of his, it is not the
King's laying of it, that makes it to be Law. Now we fay, This Declaration
under the Great Seal, is not agreeable to the Laws of the Land; and that for
tnis Reafon, Becaufe it GOES, at one blow, fet slide all the Law .we have in
My Lord, If this be denied, we miift a little debate this mattery for they are
almoft all Penal Laws i not only rhofe before the Reformation, but iince i upon
which the whole Government, both in Church and State, does in a great meafure
depend.
Efpecially, my Lord, in Matters of Religion, they are all Penal Laws : For,
by the Ad of Uniformity, which my Lords the BiQiops are fworn to obferve,
and adjured by an expreis Claufe in the Aft j No Man is to preach, uniefs he be
Epifcopally ordained ; no Man is to preach without a Licence. If all this be fee
aiidc, I confef?, then it will go very far into the whote Ecclefia.ftical Government.
If this be denied, we are ready to argue that too.
L. C. J. They are to do fo Itill.
Mr. Pollixfcn. My Lord, 1 am fure the Confequence is otherwife, if this Decla-
ration llgmfieany thing. And if it be the Will of the King, my Lord, the Will
of the King is, what the Law is. If fo be the King's Will be not conionant to the
Law, it is not obliging.
My Lord, The Cafes that we have had of Difpenfations, are all fo many ftrong
Authorities, againft a general, or particular Abrogation. My Lord, that is a
Matter of Law, which if it fall out to be any way doubtful, it will be fk to have
it debated and fetkd.
If they will fay, that the Penal I.aws in Matters EcclefiafHcal can be abrogated,
or nulled, or made void pro ttmyofe, or for Life, without the meeting of the King
and People in Parliament j 1 intilb confefs, rhey fay a great thing, as it is a Point of
great Concern ; but I think,, that will not be laid : And ail that has been ever faid
in any Cafe, touching Difpenfations, proves quite the contrary, and ailerts what
I affirm. For, Why fliould any Man go about to argue, that the King may dif-
pc.ife with this or that particular Law, if at once he can difpenfe with all the
Law, by an undoubted Prerogative ? This is a Point of Law, which we inlift
upon, and are ready to urgue with them ; but we will go on with the reft of
tl'.ofe things that we have offer'd : And firft, we will read the Aft. oi Uniformi-
ty, made i Eliz.. that Claufe of it, where they avefo ftriftly charged to fee to
ihe Execution of that Law.
This Aft, my Lord, by the Aft of Uniformity* made in the Beginning of the
late King's Keign, is revived, with all the Claufes in it, relating to this Matter.
li then this be a Duty incumbent upon them, and their Oaths require it of them 5,
ir they find, that the Pleafure of the King, in his Declaration, is, that which
: f:onfonant to this Law, what can they do ?
•
E e
[10*]
Can any thing be more humble, or done with a more Chriftian Mind, than by
way of Petition, to inform the King in the Matter ? For 1 never thought it, nor
hath it ever ( fure ) been thought by any body elfe, to be a Crime to petition the
King : For the King may be miftaken in the Law, fo our Books fay ^ and we,
every Day, in Wtjh>n>ifter.H*llt argue againft the King's Grants, and fay, He is
deceived in his Grants. It is the great Benefit and Liberty, which the King gives
to his Subjects, to srgue the Legality , or Illegality of his Grants.
My Lord, When all this is done, to make this to be a Libel, by putting in the
Words, Malicious, Seditious, Scandalous, and with an Intent to raife Sedition,
would be pretty hard My Lord, We pray, that Claufe of the Statute
may be read.
Mi: Soli. Gen. What for?
Mr. Pollixfen. It is a general Law, and therefore the Court will take notice of
it j nnd we pray, the Jury may hear it read.
Mr. Soil. Gen. 1 agree it to be as Mr. Pollixfen has opened j and 1 agree it to be as
Sir Robert Sawyer has opened it.
Mr. S. Femberton. My Lord, We fliall put in upon a fhort Point: My Lords tiie
Bifhops are here accufed of a Crime, of a very hainous nature as can be j they
are here branded and ftigmatized by this Information, as if they were fcditious
Libellers ; when, my Lord, it will, in truth, fall out, that they have done no
more than their Duty j their Duty to God, their Duty to the King, and their
Duty to the Church*
For, in this Cafe, that which we humbly offer to your Lordlhip (and irJIft
upon it, as very plain ) is this } That the Kings of England have no power to fuf-
pend, or difpenfe with the Laws and Statutes of the Kingdom, that eftablilh our
Religion .- That is it, which we ftand upon for our Defence. And we fay, That
fuch a Difpenfing Power with Laws and Statutes, is a thing that ftrikes at the ve-
ry Foundation of all the Rights, Liberties and Properties of the King's Subjects
whatfoever. If the King may fufpend the Laws of the Land, which concern our
Religion, I am fure there is no other Law, but he may fufpend : And if, die King
may fufpend all the Laws of the Kingdom, what a Condition are all the Subjects
in, for their Lives, Liberties and Properties ? All at Mercy.
My Lord, The King's Legal Prerogatives are as much for the Advantage of his
Subjects, as of hitnfelf ; and no Man goes about to fpeak againft them : But, un-
• der pretence of Legal Prerogatives, to extend the Power of the King, to fupport
a Prerogative that tends to the Deftruction of all |)is Subjects, their Religion,
and Liberties i in that, I think, they do the King no Service, who go about to
doit.
But now we fay, with your Lordfhip's Favour, that thefe Laws are the great
Bulwark of the Reformed Religion ; they are, in truth, that which fenccth the
Religion and Church of England, and we have no other Humane Fence befides.
They were made upon a Fore-fight of the Mifchief that had, and might come, by
falfe Religions in this Kingdom i and they were intended to defend the Nation
againfl them, and to keep them out j particularly, to keep out the Roimfo Reli-
gion ( which is the very worft of all Religions) from prevailing among us ; and
that is the very Defign of the Act for the Tefts, which is intituled, An Atl to pre-
vent Dangers that may happen from Popifh Recufants.
My Lord, If this Declaration mould take effect, what would be die End of it ?
All Religions are let in, let them be what they will j Ranters^ Qu<tkfrs, and the
like ; nay, even the Roman Catholic^ Religion ( as they call it ; ) wiiich was inten-
ded, by thefc Acts of Parliament, and by the Act of Uniformity, and feveral
other Acts, to be kept out of this Nation, as a Religion no wsy tolerable, nor to
be endured here.
If this Declaration take effect, that Religion will ftand upon the fame Terms
with the Proteftant Religion. Sufpend thofe Laws, and that Ramifi Rdigion,
that was intended to be prohibited, and fo much Care was taken, and fo many
Statutes made, to prohibit it, will come in ; and all this Care, and all thofe Sta-
tutes go for nothing. This one Declaration fets them all out of doors > and then
that Rekgion ftands upon equal Terms with the eltablimed Religion.
My Lord, We fay this farther, that my Lords the Bifhops have the Care of the
Church, by their very Function, and Offices \ and are bound to take care,to keepouc
aH thofe falic Religious that are prohibited, aad defigned to be kept out by the
Law,
C'07]
Law. My Lords the Bifliops finding this Declaration founded upon a meer pre-
tended Power, that had been continually oppofed, and rejected in Parliament,
coald not comply with the King's Command to read it.
My Lord, Such a Power to difpenfe with, or fufpend the Laws ofaNatiorij
cannot, with any fhadow of Reafon, be. It is not long lince, that fuch a Power
was ever preferred to by any, but fuch as have the Legislative too :, for it is plain,
that Inch a Power muft, at lead, be equal to the Power that made the Laws. To
diipenfe with a Law, mult argue a Power greater, or, at leaft, as great as that
which made the Law.
My Lord, It has been often faid in our Books, That where the King's Subjects
are concerned in Intereft, the King cannot fufpend, or difpenfe with a particular
Law. But, my Lord, how can the King's Subjects be more concern'd in Interefl,
than when their Religion lies at ftake ? It has been refolved, upon the Statute of
Symony, that where the Statute has difabled the Party to take, there the King
coald not enable him, againft that Aft of Parliament : And fhall it be faid, that
by his Difpenfation, he lhall enable one to hold an Office, who is difat led by the
Teft-Aft >
My Lord, V/e fay, TheCourfe of our Law allows no fuch Difpenfation, as
this Declaration pretends to. And he that is but meanly read in our Law, muft
needs underftand this, That the Kings of England cannot fufpend our Laws \ for
that would be, to fee afide the Law of the Kingdom : And then we might be clear-
ly without any Laws, if the King mould pleafe to fufpend them.
'Tis true, we fay, the laft King Charles was prevailed upon, by Mif informa-
tion, to make a Difpenfation, fomewhat of the nature of this, though not fo full
an one j for that difpenfed only with fome few Ceremonies, and things of that
nature: But the Houfe of Commons (this taking Air) in \66^. reprefent this
to the King, by a Petition. And what is it that they do reprefent? That he,
by his Difpenfation, has undertaken to do that, which nothing but an Aft of Par-
liament can do •, that is, the difpenling with Penal Laws ; which is only to be
done by Aft of Parliament. And thereupon it was thought fit, upon the King's
Account, to bring m an Aft for it, in fome Cafes.
My Lord, The King did then, in his Speech to the Parliament (which we ufe,
as a great Argument againft this Difpenfing Power) fay this, "That, conflde-
•* ring the Circumftances of the Nation, he could wiih with all his Heart, that he
w had fuch a Power, to difpenfe with fome Laws , in fome Particulars. And
thereupon, there was a Bill, in order to an Aft of Parliament, brought in, giving
the King a Power to difpenfe j but, my Lord, with a great many Qualifications.
Which fhews plainly, that it was taken by the Parliament, that he had no Power-
to difpenfe with the Laws, of himfelf.
My Lord, Afterwards, in 1672. the King was prevailed upon again, to grant
another Difpenfation, fomewhat larger..
L. C. J. Brother Pemberton, I would not interrupt you, but we have heard of
this over and over again already.
Mr. S. Ptmbmon. Then, fiiice your Lordfhip is fatisfied of thefe things (as I
prefume you are) elfe I fhould have gone on, I have done, my Lord.
Mr. 5. Levinz., But, my Lord, we fhall go a little higher than that, and mew,
that it has been taken all along, as the ancient Law of England^ that fuch Difpen-
{ations ought to be by the King and the Parliament, and not by the King alone.
Mr. Soil. (Jen. My Lord, if you will admit every one of the Council to Speech it,
before they give their Evidence, when (hall we come to an End of this Caufe ?
We (hall be here till Midnight.
L. C. J. They have no Mind to have au End of the Caufe, for they have kept it
three Hours longer than they need to have done.
Mr. S. Pembcrton. My Lord, This Cafe does require a great deal of Patience.
L. C. J. It does fo, Brother ', and the Court has had a great deal of Patience :
But we muft not fit here only to hear Speeches.
Mr. An. (.icn. Now, after all their Speeches, of two Hours long, let them read
any thing, if they have it.
Sir Rob. Sawyer. We will begin with the Record of Richard the Second •
Call WUitm Fijlitr.
William Filhcr, Clerk to Mr. Ince, fmrn.
L. C. J.
/.. C. J. What do you ask him?
b/r Rob. Sj»)tr. bhcw liim that Copy of tlie Rccon'.
The Record rras then Jlxirw hitn.
L. C. J. Where had you thofe, Sir ?
Mr. Fiflir. Among the Records in the Tomer.
L. C. J. Are they true Copies ?
Mr F»;7.-er. Yes, my Lord.
L. C. J. Did you examine them by the Record ?
Mr. Fifljer Yes, my Lord.
Sir Rob. Sawyer. Then hnnd them in ; put them in.
Clerk_ reads. £.v Rotith Tarliatnenti dt Anno Regni Regis Richard! Sccundi XV.
N* i ____ My Lord, It is written in French, and 1 fhall make but a bad Rea-
ding of it.
Sir Sam. Aftrey. Where is the Man that examin'd it ? -- Do you under-
fhyid French ?
Mr. Fijlier. Yes, my Lord.
Sir Rob. S.nvyer. The Record is in another Hand than this \ they may enfily
read ft.
Mr. Soil. Gen. Who copy 'd this Paper ?
Mr. Fifljer. 1 did examine it .
Mr. Soil. Gen. What did you examine it with ?
Mr. Fijlxr. 1 look'd upon that Copy, and Mr. Hdftead read the Record.
L.C J. Young Man, readout.
Fiflifr reads. Pottktity Lends ma'we del Alines qififtoit le frim::r jo;:r —
Mr. Soll.Cen. Pray, tell us what it is you would have read ?
Mr. 5. Leiiitjx.. I'll tell you what it is, Mr. ScHicitor : ' Tis the DifpenfLtion
with the Statute of Pi ovitbrs : And the Ad of Parliament doss give the King a
Power to difper.fe, till fuch a time
Mr. Soli. Gen. Don't you think the King's Prerogative is affirmed by many Afts
of Pad amcnt ?
Mr. S. Levins If the King could difpenfe without an Aft of Parliament, whst
need was there for the making of it i
Mr. So*. Gen. Mr. Serjeant, We are not to argue with you about that yet.
L. C. J. Read it iu Engtifl+.for the Jury to understand ic.
Mr. Fijler. My Lord, i cannot undertake to read it fo readily in Englifli.
Mr. J. Poirel. Why don't you produce the Records that are mentioned in the
Petition, thofc in King Chutes the Second's time ?
Mr. S. Leiinz.. We will produce our Records in Order of Time, as they arc.
Sir Sam. Aflrcy. There is the Clerk of the Records of the 7'oircr, Mr.
will read it veiy well in French^ or
Then Mr. Halfte.*d was fworn to interpret the Records into Englifl}, accor-
ding to the heft of his Skill and Knowledge i but not reading very resdi-
ly - *_ a true Copy of the Record in Ei.'glijb follgws, out of the Rolls
of Parliament, in the 1510 Year of King Rich*rtl the Second,
Fritf-o.
, the Morrow of All Souls, which was the firft Day of this Parlia-
" ment, holden at Weftminjler, in the fifteenth Year of the Reign of our
*l Lord, King Richard the Second, after the Coi.qucfr, the Reverend F.uhcr in
" God, the Archbi(hop of Tor^., Primate and Chancellor of England, by the King's
" Commandment, being prcfent in Parliament, pronounced and declared, very
" nol)ly and wifely.the Caufe of the Summons of this Parliament : And (hid, Fii it,
" That the King would, that holy Church principally, and afterwards the Lords
" Spiritual and Temporal, and alfo the Cities and Burroughs, mould have and
" enjoy their Liberties and Franchifes, as well as they had them, a/id enjoyed
"them, in the Time of his Noble Progenitors, Kings ofEnghnd; and alfo,' in
*' his own Time. And afterwards faid, The Summons of this Parliament wss
" principally for three Occalions : The fy'll Occalion was, To ordain how the
*' Petce and Quiet of the Land, which have heretofore been greatly Uemilhed and
" diflurbcd,
" difturbed, as well by Detraction and Maintenance, ssotherwife, might beb'et-
14 ter holden and kept, and the Lavrs better executed, and the King's Commands
" better obeyed. Tne fecond Occafion w?s, To ordain and .fee how the Price of
" Wools, which is, beyond meafure, lefTened and impaired, might be better amen-
*' ded and inhaunced. And alfo,T-hat in cafe the War fhould begin again, ac the End
*' of the prefent Truce, to wic, at the gumption of ottr Lady next coming, to or-
"dain and fee-, how and whereby the faid War may be maintained at the leaft
" Charge of the People. And the third Occalion was, touching the Statutes of
" Provifors, To ordain and fee how our Holy Father might have, that which to
" him belongs ; and the King, that which belongs to him, and to his Crown •, ac-
" cording unto that, Render unto Cjefar the things that are CjefarV, and unto God the
" things which are Cod's.
Then tfie other Record of Rlc'wd the Second was read as follows, out of the
Rolls of Parliament, the fifteenth Year of King Richard the Second ( N°- 8. )
" Be it rcmembred, touching the Statute of Provifors, That the Commons, for
" the great Confidence which they have in the Perfon of our Lord the King, and
" in his mod excellent Knowledge, and in the great Tendernefs which he hath for
" his Crown, and the Rights thereof ^ and alfo, in the noble and high Difcre-
" tions of the Lords, b#Vt*femtJ, in full Parliament, that our faid Lord the King,
*' by Advice and Aflent of the faid Lords, May make fuch Sufferance, touching the
w faid Statute, as mall feem to him reafonable and profitable, until the next Parlia-
** ment, fo as the faid Statute be not repealed in no Article thereof: And that all
44 thofe who have any Benefices by force of the faid Statute, before this prefent
" Pailiament} and alfo, That all thofe, to whom any Aid, Tranquility, or Ad-
*' vantage is accrued, by virtue of the faid Statute of the Benefices or Holy Church
" (of which they were heretofore in Polfeflion) as well by Prefentation, or Col-
" lation of our Lord the King,as of the Ordinaries,or Religious Perfons whatfoever,
44 or by any other manner or way whatfoever ; may freely have and enjoy them,and
" peaceably continue their Poflellion thereof, without being oufted thereof, or any
" ways challenged^ hindred, molefted, difquieted, or grieved hereafter, by any
*' Provifurs, or others, againlt the Form and Effed of the Statute aforefai^, by
41 reaion of the faid Sufferance in anytime to come. And moreover, That the faid
" Commons may diftgree M the next Parliament, to this Sufferance, and fully re fort to the
"fad Statute, if it lhail feem good to them to do it : With Proteftttion, That this
4t Allent, which is a Novelty, and hat not been done before this time, bfrnot drawn into
*4 Example or Confeqaencc for Time to come. And they prayed our Lord the King,
" that the Protection might be entred of Record, in the Roll of the Parliament:
" And the King granted, and commanded to do it,
Mr.S- Levinz.. Now, my Lord, we will go on. This was in Richard
the Second's Time : And a Power is given by the Commons, to the King, with
the Affent of the Lords, todifpenfe, but only to the next Parliament •, with a
Power referved to the Commons i and to difagtee to it, and retrait that Confent
of theirs rtie next Parliament.
Sir Geo. Treby. The Statute of Pfovifors was and is a Penal Law, and concerning
EccleCaflical Matters too ; viz* The Collating and Preferring to Archbifhopricks,
Bilhopricks, Benefices, and Dignities of the Church : And in this Record, now
i ead, the Parliament give the King a limited Power, and for a fhort Time, to dif-
penfc with that Statute. But, to obviate all Pretence of fuch a Power's being in-
herent iothe Crown, as a Prerogative, they declaie, (i..) That it was a Novelty^
that is as much as to fay, That the King had no fuch Power before. (2.) That ic
ftiould not be drawn into Exaraflc; that is to fay, That he mould have no fudi
Power for the future.
Mr. 5. Levir.z.. Now we wil] go on to the Records mentioned in the Petition ;
thofe in the laft King's Time, in 1662, and 16-2 ; and that in this King's Time,
in 1685 Where is the Journal of the Houfe of Lords ?
Air, Walker fworn.
L. C. J. Is that the Book of the Houfc of Lords ?
F f Mr.
[no]
Mr. \V*lkfr. It is the Journal of the Houfe of Lords.
/,. C. f. Is it kept by you ?
Mr. Walker. Yes, my Lord.
/.. C J. Where is it kept?
Mr. Walksr. ki the ufual place, here in Weftminfter.
Mr. SoH. Gen. What is that ?
Mr S. Levin*.. It is the Journal of the Houfe of Lords -- But, my Lord,
there is one thing that is mentioned in the laft Record that is read, which is worth
your Lordfhip's, and the Jury's Obfervation ^ That it is declared a Novelty, and
a Protection, that it fhould not be drawn into Precedent for the future.
L. C. J. That has been obfervcd, Brother : Let us hear your Record read.
Cfer^reads. - Die Mercurii i8tt<foFebruarii, 1662.
" His Mnjefly was prefent this Day, fitting in the Regal Crown and Robes,
" the Peers being likewife in their Robes : The King gave Order to the Gentle-
" man U'her of the Black Rod, to fignifie to the Houfe of Commons his Plcafure,
u that they prefently come up, and attend His Majefty, with their Speaker j who
'* being prefent, His Majefty made this Speech following.
" My Lords, and Gentlemen ;
" T Am very glad to meet you here again,having thought the Time long fince we
I. " parted, and often wiihed you had been together, to help me in fome Occa-
" lions which have fallen out : I need not repeat them unto you, you have all had
" the Nfoife of them in your feveral Countries j and, God be thanked, they were
" but Noife, without any worfe Effects.
" To cure the Diftempers, and compofe the differing Minds that are yet amonglt
*' us, I fet forth my Declaration of the 26th of December. In which you may fee,
" I am willing to fct Bounds to the Hopes of fome, and to the Fears of others ; of
*' which, when you (hall have examined well the Grounds, I doubt not but I Ihall
u have your Concurrence therein. The truth is, lam, in my Nature, an Enemy
" to all Severity for Religion and Confcience, haw miftaken foever it be, when it
" extends to Capital and Sanguinary Punifhments} which, I am told, were began
" in Popifh Times. Therefore, when I fay this, I hope I fliall not need to warn
u any here, rot to inferr from thence, that I mean to favour Popery. I muft con-
" fefs to you, there are many of that Profeffion, who, having ferved my Father,
" and my felf very well, may fairly hope for fome part in that Indulgence, I would
" willingly afford to others who difTent from us. But let me explain my felf, left
44 fome miftake me herein, as I heard they did in my Declaration : I am far from
u meaning by this, a Toleration, or Qualifying them thereby to hold any Offices,
u or Places of Truft in the Government. Nay, further ; I defire fome Laws may
u be made, to hinder the Growth and Progrefs of their Doftrine.
" I hope you have all fo good an Opinion of my Zeal for the Proteftant Reli-
" gion, as I need not tell you, I will not yield to any therein, not to the Bifliops
" themfelves ; nor in my liking the Uniformity of it, as it is now eilabliihed ;
" which being the Standard of our Religion, muft be kept pure, and uncorrupted,
" free from all other Mixtures. And yw, if the Diffenters Tfltll demean themfehei
*' peaceably and modeflly under the Government, I could heartily wifa 1 hadfuch * Power
" of Indulgence to itfe upon Occafion. - -
SitCeo.Treby. Pray Sir, read that out diftinftly.
s. - " I could heartily wifh I had fuch a Power of indulgence to
"ufeupon Occafion, as might not needlefly force them out of the Kingdom ; or,
" flaying here, give them Caufe to confpirc againft the Peace of it.
Lords , and (Jentlemen :
" It would look like Flattering in me, to tell you, in what degree I am confident
" of your Wifdora and Afleftion in all things that relate to the Grcatneft and Pro-
1 fperity of the Kingdom. If you confider well what is beft for us all, I dare fay,
" we Oiall not difagree. I have no more to fay to you at prefent, bur, once again,
'* to bid you heartily welcome.
Mr. Finch.
[in]
Mr. Finch The next thing we (hall (hew you is, that after the King had made
this Speech, and wifhed he had fuch a Power of Indulgence to ufe upon Occafion,
there was a Bill in the Houfe of Lords brought in, to enable the King todifpenfe
with feveral Laws : We fliall /hew you the Journal, where it was Read and Coni-
nuttcd •, but further than that it went not.
L C. ~f. What Ufe do you make of this, Mr. Finch ?
Sir Rob. Sawyer. You may eafily apprehend the Ufe we (hall make of it. (The
King, in his Speech, fays, Hewiflj'd he had fuch tt Power;) the Houfe of Lords
thought he had not ; and therefore they order'd a Bill to be brought in, to enable
him . Read the Journal of the Lords, of the i3th of March, 1662.
Clerk reads. Die Veneris Xlir^'eMartii, i66a. -
"After fome Debate, whether the Houfe (hould be put into a Grand Com-
" mittee, for the further Debate of the Bill concerning His Majefty's Power in Ec-
lt cleliaftical Affairs, it was put to the Queftion , (viz..).
" As many of your Lordlhipsas would have this Houfe adjourned, and put into:
«c a Committee, to confider of the faid Bill, fay, Content ; others, NotC«nte»t.
*'• Palled in the Affirmative.
"And then the Lord Chamberlain of the Hou'lhold was directed to take the
€t Chair, as formerly ^ which he did accordingly.
"And after Debate, the Houfe was refumed, after the Grand Committee had
appointed a Sub-Comfflittee, touching the faid Bill.
ct
Sir Rob. Sawyer. This is all in the Journal of the Houfe of Lords, about this
Matter ~- We will now (hew you the Bill it felf.
Cltrk reads. " An Aft concerning His Majefty's Power in Ecclefiaftical Affairs.
divers of His Majefty's Subjects, through Error of Judgment, and
mifguided Confciences ( whereunto the Licentioufnefs of thefe late un-
<c happy Times have much contributed ) do not conform themfelves to the Order
<l of Divine Worlhip and Service eflablifhed by Law -, and although His Majefty
*' and both Houfes of Parliament are fully faiisfied, that thofe Scruples of Con-
*' fcience, from whence this Nonconformity arifeth, are ill grounded ; and that
" the Government of the Church, with the Service thereof (as now eftablifhed)
*' is the belt that is any where extant, and molt effedual to the Prefervation of
" the Proteftant Religion : Yet hoping that Clemency and Indulgence may, in
«' time, wear out thofe Prejudices, and reduce the Diffenters to the Unity of the
" Church j and coniidering that this Indulgence, how neceifary foevever, cannot
tc be difpenfed by any certain Rule, but muft vary, according to the Circumftan-
" ces of Time, and the Temper and Principles of thofe, to whom it is to be
** granted ; and His Majefty being the befb Judge, when, and to whom this In-
*' diligence is to be difpenfed, or as may be mofl confident with the publick Peace,
<c and without juft Caufe of Offence to others ; and to the end His Majefty may
«« be enabled to exercife it with univerfal Satisfaction, Be it Enacted by the King's
<l Moft Excellent Majefty, by Advice, and with the Content of the Lords Spiri-
" tual and Temporal, and Commons, in this prefent Parliament aflembled, and
" by the Authority thereof, That the King's Majefty may, by Letters Patents UH-
" der the Great Seal, or by fuch other Ways as to His Majefty (hall feem meet^
" difpenfe with one Att^or Law, made the laft Sejjioa of this prefent 7>^r//W/7Jf»rt(intituled,
<l An Aft for the Vmformity of Fublick. Prayers, and Adminiftration of the Sapramentsj
'* and other Rites and Ceremonies j and for Eftablifliing the Form ofMakfng, and Ordai-
*' nlng, and Confecrat ing Bifiops, Priests and Deacons in the Church of England ) and
" with any other Laws or Statutes concerning the fame \ or requiring Oaths, or
" Subfcriptions ^ or which do enjoin Conformity 10 the Order, Difcipline and
41 Worfhip eftablifhed in this Cljurch, and the Penalties in the faid Laws impofed,
" or any of them : And may grant Lifences to fuch of His Majefty's Subjects of the
" Proteftant Religion, of whole iooffenfive and peaceable Difpoildon His Majefty
" (hall be perfwaded, to enjoy and ufe the Exercife of their Religion and Wor-
" (hip, though differing from the publick Rule i ( the faid Laws and Statutes, or
" any Difabilities, Incapacities, or Penalties, in them, or any of them contained,
*' or any Matter or TWng to the contrary thereof nocwithftanding.)
Provided
[.('. -.\., >tf'J i:it Fn.&ed^ That no fach Indulgence, Licence, orDif-
*' per.fktion hereby to be granteO, fall extend, or be con/! rut d to extend tuthe Jcltr*.
4t tine, or Pcrrr.itung ihc Vje or Extrtift of the Pcprfi, or Ritman Catljolick^ A<%HW» in
" this^Kingdom ', nor to enable *ny Per fan or Pcrfwis, tok'jld orexercife tiny fLit ffr
44 Office of pMd^Truft within this Kingdom, who, at the Beginning ot this pre-
" fent Parliament, were, by the Laws and Statures of this Realm, difenabled
44 thereunto ^ nor td exempt any Perfon or Pcrfons from fach Penalties, as ?.re by
*4 Law to be intlided upon luch as (hall piiblnh er preach any thing to the Depra-
44 vation, or Derogation of the Book of Cwmon Prayer, or the Government, Or-
44 der and Ceremonies of the Church eftablifhed by Law.
44 Provided alfo, and be it Enatted, That no fuch Licence or Difpenfation fl.«B eJc-
" tend to make any flrieft or Mimfter c.ipMe of any E'ftle/iajlical Living or Benefice,
*4 with Cure, who Ihall not, before the Archbifhop of the Province, or tJifliop of
14 the Diocefs, where he lives, make fah Sitbfcnption to the Articles of Rdi^ion, as is
44 enjoined by the Statute of the i3th of Elt^abtth, made for Refor .nation ot Dif-
4' orders in the Church. Nor (hail extend, or be ccnftrhed to extend to dij-tenfc vitb
4> the Book, of Common Prtycr .- But that the laid Book fliall be conftantly read in afl
44 the Cathedral and Collegiate Churches, and in all the Parilh- Churches, and pub-
41 lick Chapels.
Sir Rob. Sawyer. Here your Lordfhip fees what the Lords did in this Matter
We ihail now (hew you, out of the Commons Journal, what they did, concer-
ning this Speech of the King. Shew the Journal of the 25 th of Fcbriurj^
Mr. jodfell /ircr».
L. C. $. Did you examine that, Air. Jodrell ?
Mr Jodrell. it is the Original Book.
The Book.dclivered into the Ceurt.
Clerk reads. DwMcrcurii XXV0- die Februarii, 15 Car. II. Refolved, that it bt
prefented.
Sir Rob. Sawyer. You mufl begin above The Houfe then took icto
Debate
Clerk*. reads. 4C The Houfe then took into Debate the Matter touching Ir.dul-
tl gence to Dilfenters, from the Ad of Uniformity.
44 The Qucftion being put, that the Prefent Debate be adjourned till Tot-
Morrow Morning.
44 The Houfe was divided.
" The Teas went out.
Sir John Gvodric^ -\
and >" Tellers for the Noes j with the Noes, \6i.
Sir William Lovnther, )
" Sir RithtrJ Temple, j
and ^Tellers for the Tetu\ with the Tf.t/, 119.
4' Sir *
44 And fo it paired in the Negative.
44 Relblved, e*-c.
<c That it be prefented to the King's Majefly, as the humble Advice of this
44 Houfe, That no Indulgence be granted to the Diflenters, from the Ad ot Uui-
" formity •—
Mr. Soil. Gen. Does your Lordlhip think it to be Evidence ?
L. C. J, Let them read it, Mr. Sollicitor, that we may hear what it is.
Clerk
C
C/crfc reads on.
1 Ordered that a Committee be appointed td colled: and bring in the Reafons of this
1 Houfe for this Vote, upon the prefenc debate* to be prefented to his Majefty, and that
* the nominating of the Committee be adjomned till to morrow morning.
Sir fiob. Sawyer. That's all.
.
Mr. S. G. Pray, if there be any thing more, read on j you (hall not parcel out a Re-
cord, and take, and leave what you will.
Mr. Finch. Did not you parcel out our Petition ?
Mr. S. G. Read on, if there be any thing about this matter*
Clerk. That is all.
Sir Hob. Sawyer. Turn to the ayth of February, 1662.
Clerk,, reads* Vener'n xxvii, Febrilarii xv. Car. II.
.
* Sir Heneage Finch reports from the Committee appointed to colled and bring in the
' Reafons of the Houfe for their Vote of Advice to the King's Majefty \ and in the clofe
* of thofe Reafons to add, That the Houfe will affift his Majefty with their Lives and For-
* tunes, and to pen an Addrefs to his Majefty for that purpofe ; the feveral Reafons and Ad-
c drefs agreed by the Committee in writing, he read in his place , and did after bring up,
4 and deliver the fame in at the Clerk's Table.
4 The Firft Paragraph was read, and upon the queftion agreed to.
4 The Second Paragraph was read, and upon the quefttan agreed to.
1 The Third was read, and upon the queftion agreed to.
Sir Rob. Sawyer. Go over that, and go to the Addrefs it felf.
Clerk, reads. ' May it pleafe your moft Excellent Majefty:
4 We your Ma jetty's moft Dutiful and Loyal Subjects, the Knights, Citizens and Bur-
4 gefles of the Houfe of Commons, in Parliament aflembled, having with all fidelity and
' obedience confidered of the feveral matters comprifed in your Majefty's late Gracious
4 Declaration of the 2dth of December laft , and your moft Gracious Speech at the begin-
4 ning of this prefent Seffion, Do in the h'rft place for our felves, and in the names of all
4 the Commons of England , render unto your Sacred Majefty the tribute of our moft
4 hearty thanks for that infinite Grace and Goodnefs wherewith your Majefty hath been
4 pleafed to publifh your Royal Intention of adhereing to your A& of Indempnity and
* Oblivion by a confront and religious obfervance of it 5 and our hearts are further en-
4 larged in thefe returns of Thankfgiving, when we confider your Majefty's moft Princely
* and Heroick profeffion of relying upon the Affections of your People, and the abhorring
4 all forts of Military and Arbitrary Rule : but above all, we can never enough remember
4 to the honour of your Majefty's Piety, and our own unfpeakable Comfort, thofe folefnn
* and moft endearing Invitations of us your Majefty's Subjects, to prepare Laws to be pre-
4 fented to your Majefty againft the growth and increafe of Popery ; and withal, to provide
4 more Laws againft Liccncioufnefs and Impiety, at the fame time declaring your own Re-
4 folutions for maintaining the Aft of Uniformity : and it becomes us always to ac-
4 knowledg and admire your Majefty's Wifdom in this your Declaration, whereby your
4 Majefty is pleafed to refolve, not only by fumptuary Laws, but by your own Royal Ex-
* ample of Frugality, to reftrain that excefs in mens Expences , which is grown fo ge-
4 neral, and fo exorbitant, and to direct our endeavours to find out fit and proper Laws
4 for advancement of Trade and Commerce.
4 After all this, we moft humbly befeech your Majefty to believe } "fhat it is with extreme
' wirviUingnefs and relutlancy of heart that we are brought to differ from any thing which your
* Majefty hath thought fit to frofaje ; and though we do no ways doubt but that the unrea-
'fonable diftempers of mens Spirits, and the many Mutinies and Confpiracies which were
c carried on during the late intervals of Parliament , did reafonably encline your Majefty to
* endeavour by your Declaration to give feme allay to thofe ill humours , till the Parlia-
4 ment affembled, and the hopes of an Indulgence, rf the Parliament ihould content to it,
4 efpecially feeing the Pretenders to this Indulgence did feem to make feme title to it by ver-
4 til? of your Majefty's Declaration from Breelah -•> Nevtrthelefr, rvt your Majejly's moft Dutiful
4 and Lnyil Subjects, who are now returned to ferve in Parliament from thofe feveral parts
* and places of your Kingdom, for which we arc chofen, Da humbly offer it to ymr Majejly's
* great Wifedom> that it M in no fort advifiable that there be any Indulgence to fttch ferfons who
G g prefteme
'•frtfume to di/eat from tie A& of Vntformity, and Religion eftablijhed (for thefe Rea-
4 fons. )
4 We htve confidered the nature of your Majefty's Declaration from Bredab , and arc
4 humbly of opinion, That your Majefty ought not to be petted any further.
4 Becaufe it is not a Promife in it felf, but only a Gracious Declaration of your Majefry's
* Intentions to do what in you lay, and what a Parliament fhould advife your Majefty to
4 do, and no fuch Advice was ever given, or thought tit to be offered j nor could it be othcr-
4 wife underftood, becaufe there were Laws of Uniformity then in being, which could not
4 be difpenced with but by Act of Parliament.
Sir Hob. St&yer. This is all that we read this for ; your Lordfhip and the Jury fee what
is here declared by the Parliament, That the Act of Uniformity could not be difpenfed
with, without ah Act of Parliament.
Next, My Lord, we fhall (hew you what was done in the Year 1672. Read the
King's Speech the 5th of February, 1672.
The Journals of the Lords Houfe were delivered in.
Clerk, reads. 4 Vie Meratrii, 5. Febr. 1672.
4 My Lords and Gentlemen,
' I am glad to fee you here this day. I would have .called you fooner together, but
4 that I was willing to eafe you and the Country , till there were an abfblute ne-
4 certify.
4 Since you were laft here, I have been forced to a moft important , neceffary and ex-
4 penfive War, and I make no doubt but you will give me fuitable and effectual affiftance
4 to go through with it ; I refer you to my Declaration for the caufes, and indeed the ne-
4 ceflity of this War 5 and fhall now only tell you, That I might hare digefted the hidig-
* nities to my own Perfbn , rather than have brought it to this Extremity , if the In-
4 tereft as well as the Honour of the whole Kingdom had not been at (take ; and if I
4 had omitted this Conjuncture , perhaps I had not again ever met with the like ad-
4 vantage.
4 You will find that the laft Supply that you gave me , did not anfwer Expectation
4 for the ends you gave it, the payment of my Debts ; therefore I muft in the next place
' recommend them again to your fpecial Care.
' Some few days before I declared the War, I put forth my Declaration for Indulgence
4 to Diffenters, and have hitherto found a good effect of it, by fecuring my peace at home,
4 when I had war abroad } There is one part in it, that has been fubject to Mifconftru-
'ctions, which is that concerning the Papifts, as if more liberty was granted to them
* than to other Recufanfs, when 'tis plain there is lefs •, for the others have publick Places
4 allowed them, and I never intended that they fhould have any, but only have the free-
4 dom of their Religion in their own Houfes, without any concourfe of others ; and I could
4 not grant them lefs than this , when I had extended fo much more Grace to others,
' moll of them having been loyal, and in the fervice of me and the King my Father : And
4 in the whole courfe of this Indulgence I do not intend that it fhall any way prejudice
4 the Church, but I will fupport its Rights, and It in its full power.
' Having faid this, I fhall take it very ill to receive contradiction in what I have done >
4 and I will deal plainly with you, I am refolved to ftick to my Declaration.
' There is one Jealoufie more which is malicioufly fpread abroad , and yet fo weak
1 and frivolous , that I once thought it not of moment enough to mention j but it may
' have gotten fome ground with fome well-minded people, and that is, That the Forces
4 which I have raifed in this War were defigned to controul Law and Property i I wifh I
4 had had more Forces the laft Sommer, the want of them then , convinces me, I muft
4 raife more againft this next Spring j and I do not doubt but you will conlider the
c charge of them in your Supplies.
4 1 will
C
c I will conclude with this affurance to you , That I will preferve the true Reformed
' Proreftant Religion , and the Church , as it is now Eftabliftied in this Kingdom, and
* that no Mans Property or Liberty (hall ever be invaded. I leave the reft to the Chan-
« cellor.
t
Mr. S. Pemb. Now go to the Journal of the Commons of the i$th of February
1*72.
The Journal put in.
Clerk^ Reads, ' Vent ris xiiij. die Februarii, 1671.
4 Mr. Pmvle Reports from the Committee appointed to prepare, and draw, up a Petition
* and Addrefs to his Majefty , The faid Petition and Addrefe , which he read in his
* place, and afterwards delivered the fame in at the Clerks Table, and the fame being again
* twice read, is as followeth, (viz.)
* Moft Gracious Sovereign, •
* We your Majefties molt 'Loyal and Faithful Subjects, the Commons Aflembled in
1 Parliament , do in the rirft place , as in all Duty bound, return your Majefty our moft
* humble and hearty Thanks , for the many Gracious Promifes and Affurances which
* your Majefty has feveral times during this Prefent Parliament given to us, That your
* Majefty would Secure and Maintain unto us the true Reformed Protettant Religion, our
* Liberties and Properties, which moft gracious Aflurances your Majefty out of your great
1 Goodnefi has been pleafed to renew unto us, more particularly, at the Opening of this
' prefent Seflfion of Parliament.
' And further, we crave leave humbly to reprefent, That we have with all Duty and
1 Expedition, taken into our Confideration, the feveral parts of your Majefties laft Speech
* to us ; and withal, the Declaration therein mentioned, for Indulgence to Diflenters, dated
« the I lib of March laft: &nO tDC fittt) OH* 1011)00 fcOttttD in ^ttt? tO
c f our fl^ajeft? , ®D*t $«ial Statutes! in fatter*
* cannot fce ^>utpenoeD butty act of parliament.
lWt therefore, the Knights, Cittizens and Burgefles of your Majefties Houfe of Com-
* tnons , da moft humbly befeech your Majefy , "that the faid Laws may have their free Cottrfe ,
* until it {hall be otbenvife provided for by A3 of Parliament. And that your Majefty would
* gracioufly be pleafed to give fuch Directions herein , that no Apprehenfions or Jea-
* loufies may remain in the Hearts of your Majefties good and faithful Subjects.
'Refolved, e^c.
'That (his Houfe doth agree with the Committee in the Petition and Addrefs by them
c drawn up, to be prefentcd to his Majefty.
Sir Rob. Sartyet. Now turn to the i^tb of February, 167 2. in the fame Book.
Clerl^ Reads. ' Lun* 2+th of February, 1672.
' Mr. Secretary Coventry Reports and Prefents in Writing from his Majefty, his Anfwer to
'the humble Petition and Addrefs of this Houfe, which was thrice read, and the Matter
' debated, and is as followeth , (viz.)
CHARLES R.
c TJIS Majefty hath received an Addrefs from you, and he hath ferioufly confidered
1 JLi of it, and returns you this Anfwer, That he is very much troubled , that that
* Declaration which he put out for ends fo neceflary, for the quiet of his Kingdom, and
c efpecially in that Conjuncture, (hould have proved the Caufc of difquiet in his Houfe of
4 Commons, and give occafion to the queftioning of his Power in Ecdeliafticks, which he
* rinds not done in the Reigns of any of his Anceftors: He is fure he never had thoughts
* of ufing it otherwife than as it hath been intruftcd in him, to the 'Peace and Eltabliih-
' ment of the Church of England , and the eafe of all his Subjects in general Neither
* does he pretend to the Right of Sufpending any Laws, wherein the Properties , Rights or Liber-
* ties of any of his Sub)e8s are concerned, nor to alter any thing in the eftablijhed DoSlrine or Thfci-
lpline of the Church of England. But his only deiign in this, was to take off the Penalties
* the Statutes inflicted upon Diflenters, which he believes when well conlidered of, you
* your felves would not wi(h executed according to the Rigour and Letter of the Law ;
* neither hath he done this with any thought of avoiding or precluding the Advice of his
' Parliament j
C iiO
' Paili.iincnr\ and if any Bill Dull be offered, which (hall appear more proper to attain the
* aforcfaid Ends, and fccure the Peace of the Church and Kingdom, when tendred in
'due manner ro him, he will IhCvV how readily he will Concur in all ways that (hall ap-
* pear good tor the Kingdom.
Sir Rob. Sjwyer. Turn tp the z6tb of February, 1672.
C/fr/^rcad. ' Die Mcrcurii xxi). February, 1672.
' Mr. Powle Reports frotn the Committee , appointed to confider of an Anfwer to re-
« turn to his Majefties laft Mtflags, upon the debate of the Houfe , an Anfwer agreed by
1 the Committee, and drawn up, and put into Writing , which he read in his place, and
' then delivered the fame in at the Clerks Table, where it was twke read , and is as fol-
* loweth, (viz.)
M >/f Gracious Sovereign,
' \TTE your Majefties moft Humble and Loyal Subjects, the Knights , Citizens and
' VV Burgefles in this prefent Parliament AfTembled, do render to your molt Sacred
1 Majeily, our molt dutiful Thanks , for that to our unfpeakable Comfort, your Majelty
' has been pleafed fo often to reiterate unto us thofe gracious Promifcs and Allurances of
* maintaining the Religion now EftablUhed , and the Liberties and Properties of your
* People; and we do not in the leaft Meafurc doubt but that yourMajefty had the fame
' gracious Intention in giving Satisfaction to your Subjects, by your Anfwer to our laft
1 Petition and Addrefs > Yet upon a ferious Confideration thereof, We find that the foul
c Anfwcr is not fufficient to clear the Apprehenfians that may jnjlly remain in the minds of your
'* People, by your Majefties having claimed a Power to fufpend Penal Statutes in Matters Ecclefi-
* aftical, and which your Majejty dies flittfetm to affert at tht faid Anfwer, to be intrujled in the
* Crown , and never quefiioned in the Reigns of any of yottr Ancestors. Wherein we humbly
1 conceive your Majcfty has been very much Mifinformed : Since no fuck Power ever wat
* claimed or exercifed by any of yottr Majejiies Predcceffors > and if it fliould be admitted, might
' tend to the interrupting the free Courfe of the Lanes , and altering the Legiflathe Power ,
* which hath always been acknowledged to rtftdt in your Majefty, and yexr two Huxfes of Parlia*
* ment.
* We therefore with an unanimous Confent become again moft humble Suiters unto
* your Sacred Majefty, That you would be pleafed to give us a fitfl and fatisfo8<>ry Anfwer t»
1 ow faid Petition and Addrefs, and that your Majcfty would takg fncb efftftual order, that tht
* Proceedings in this Matter may not for the future be drawn into Confequence or Ex-
1 ample.
' The Anfwer to his Majefties Meflage, was again read by Paragraphs , and the feveral
1 Paragraphs to the laft, were upon the queftion Severally agreed.
* The laft Paragraph being read, and the Queftion being put, that the Word urumimeut
4 fliould ftand in the Paragraph.
The Houfe divided. . The Noes go out.
Tellers,
\™d*-Jtthtt Ite the Teas, 180.
Mr. Vaugban
rfortheW«/, 77-
Sir Philip Howard J
' And fo it was refolred in the Affirmative.
c The Queftion being put to agree to the Paragraph, it was refolved in the Affirmative.
'Refoh-ed, &*
'.That the whole Addrefs be agreed to, as it was brought in by the Committee.
Sir Rot. Sawyer, Now turn to the Lords Journal, and there your Lordfliip will fee, that
the King docs Communicate this Addrefs to the Lords, and defires then Advke.
Read the i/J of Jtfarch, 1672.
C/er^ reads, Die Sabbati primo die Marcii, 1672.
' His Majefty this Day made a fhort Speech, as follows.
C ii7)
My Lords-,
'You know, that at the Opening of "this SelTion, I fpoke here'to yoiir Satisfa&ion ; ft
' has notwithstanding, begotten a greater difquiet in the Houfe of Commons, than I could
* have imagined.
* I received an Addrefs from them, which I looked not for, and I made them an An-
c fwer that ought to have contented them; but on the contrary, they have made me a
1 Reply of fuch a nature, that I cannot think n't to proceed any further in this Matter
4 without your Advice.
1 1 have commanded the Chancellor to acquaint you with all the Trarifa&ions ,
c wherein you will rind both me and your felves highly concerned : I am fenlible for what
4 relates to me, and I aflure you, my Lords, I am not lefs fo tor the Priviledg, and the
' Honour of this Houfe.
* Afterwards the Lord Chancellor read the fcveral Papers of Addrefles or" the Houfe of
'Commons, and his Majefties Anfwer thereunto, and opened his Majefties proceedings
' upon them.
The Addrefs of the Houfe of Commons was read.
Sir Rob. Sawyer. Pafe over that, you have read it already.
C/er^ reads, The next , 'his Majefties Anfwer to the Addrefs cf the Houfe of Com-
mons, was read as follows,-
Sir Rob. Sawyer. That hath been read too.
Clerk^ reads, Then was read the Reply of the Houfe of Commons to his Majefties
Anfwer, as followeth,
,Mr. Finch. You have read that likewife.
Clerl^ reads, c Upon this it is ordered- , that the Lord Treafurer, Duke of ^ftckin^jtn,
' Earl of Bridgfpater, Earl of Northampton , Earl of Brijlol , Earl of Ffrfy- , Earl of Buting-
4 brotkj and me Earl of Anglefy, do forthwith withdraw and confider what humble
4 Thanks is rit to be given to his Ma jelly for his great Favour in communicating this
* Bufineis to this Houfe, and report the fame. And accordingly, the laid Lords Com-
* mittees did withdraw themfelves for that purpofe.
'The Lords being returned , the Duke of Buckingham ' reported what the Com-
* mittee had prepared to prefent to his Ma jetty by way« Thanks , which was read as
1 followeth.
'We the Lords Spiritual and Temporal in Parliament aiTembled, do unanimoufly pre-
* fent to your Sacred Majelty , Our moft humble Thanks , for having been pleafed to
* Communicate to us, what has parted between your Majefty and the Houfe of Commons,
'whereby you have gracioufly offered*us the means of (hewing our Duty to your
* Majefty, and of aflerting the Ancient Juft Rights and Priviledges of the Houfe cf
' Peers.
' The Queftion being put, whether to agree with the Committee.
' It was refblved in the Affirmative.
'Ordered that his Majefty be delired , that his Speech , and the Papers read this day,
' may be entred into the Journal Book of this Houfe.
4 The Lord freafurer . the Duke of Buckingham , and the Lord Chamberlain, are ap-
* pointed to attend his Majefty pfefently , to know his pleafure, what time and place,
* this whole Houfe (hall wait upon him, to prefencthe humble Thanks of this Houfe, for
* his great Favour (hewed this day.
' Ordered, that upon Monday morning next, this Houfe will debate the whol^Mat-
' tcrof his Majefties Speech, and thefe Papers; and to cdnfider the Points of Priviledg,
' and what elfc may arife thereupon.
' The Lords that were appointed to attend his Majefty , return with this
' Anfwer.
'That his Majefty has appointed this Afternoon at five of the Clock, for this Houfe to
' wait upon him in the Banquet ting-houfe at Whitehall.
4 Ordered that all the Judges nov-- in Town, (hall attend this Houfe on Monday morn-
' ing n.xt.
Sir Rob. Sawyer. The -$d of March-, \&JT.. k thd next.
Cleri^ reads, '•Die Lune 3. die Mar<;ii, 1672.
' The Lord Chancellor reported , That the whole Houfe on Saiiirday M, waited upon
4 his Majtlty at Whitehall, and prefented the humble Addrt(s of this Houfe, and his Ma-
* jcfty was pleafed to fetu'rn' this Anfwer.
H h A$J
A/y Lords,
' It ake this Addrcfs of yours very kindly; I will always be very affectionate to you,
'* nd txpeSt you fliould Hand by me, as I will always by you.
' Then the Houfe took into Conlideration the whole Matter of his Majelties Speech
' on Saturday , and the three Papers which his Majefty acquainted this Huufe withal ,
' and all the faid Papers in their order were read, and after a long debate, the Qucitiou
' being put,
' Whether this Houfe (hall in the fuft place enter into ConGderation of giving Advice
* to his Majefty?
' It was refolved in the Affirmative.
' It is ordered, that this Bulincfs fhall be taken into Confederation to morrow Morn-
' ing, at nine of the Clock , the firft Bufmefs.
' Ordered that the Judges now in Town, fhall attend to morrow Morning.
Sir Rob. Sanyer. The ^th of March, 1672.
Clerl{ reads, ' Next, The Houfe took into Confideration the Advice to be given to his
' Majefty concerning the AddrefTes made to him from the Houfe of Commons.
' The AddrefTes of the Houfe of Commons, and his Majeflies Anfwer were read, and
' after a long debate, the Queftion being put, Whether the King's Anfwer to the Houfe
4 of Commons in referring the Points now controverted to a Parliamentary way by Bill,
4 is good and gracious, that being a proper and natural Courfe for Satisfaction therein.
It was refolved in the Affirmative.
Sir Rob. Sawyer. The 8th ofMarch^ 1672.
. Clerk^ reads, Die Sabbati 8° die Marcii , 11572. .
' His Majefty in his Royal Throne, adorned with his Cr6wn and Regal Ornaments,
* commanded the Gentleman VJher of the .B/jd^ Rod, to give notice to the Houic of
' Commons, that they attend his Majeity prefently.
' The Commons being come with their Speaker, hie Majefty made this lliort Speech,
.' following.
My Lords and Gentlemen^
' Yefterday you prefented n% an Addrefs , as the beft means for the fatisfying and
' compoiing the Minds of my Subjects, to which I freely and readily agreed, and I fhall
' take care to fee it performed accordingly*
' I hope on the other fide, you Gentlemen of the Houfe of Commons will do your
' partj for I muft put you in mind , it is near rive \Veeks lince I deimnckd a Supply,
' and what you Voted unanimoufly upon it, dW both give Lite to my Affairs at Home,
' and diihearten mine Enemies abroad ; but the feeming delay it hath met withal llnce,
' hath made them to take new Courage, and they are now preparing for tiiis next Sum-
' mer a greater Fleet, ( as they fay) than ever they have had yet j, io that if the Supply
'be not very fpeedily difpatcht, it will be altogether ineffedtual , and the Safety, Ho-
'nour and Intereft of England ^ muft of neceffity be expofed. Pray lay this to heart,
' and let not the Fears and Jealoulks of fome draw an inevitable Ruin upon us all.
My Lords and Gentlemen,
' Jf there be any Scruple remaining iritb you-, concerning the Suffofinn of Paul Ltwr , I
{ here faithfully Promife you, That what has been done in that particular-, Jhal! not for the future
' be 4$avnn either into Confiquence or Example. And as I daily expecl from you a Bill
' for my Supply, fo I allure you , I fhall as willingly receive and pals any other you
' fhall offer me that may tend to the giving you fatisfadtion in all your juit Grievances.
'Next, my Lord Chancellor reported, That both Houles waited upon t lie King yc-
' fterday, and prefented hitn with the Addrefs againft the growth ot Popery, and his
' Majefty has been pleafed to return this Anfwer.
My Lords and Gentlemen ,
'I do heartily agree with you in your Addrefs, and fhall give fpeedy Order to have
'it put in Execution ••, there is one part to which I believe it is not your Intention that it
' fhould extend ; for I can fcarce fay, thofe are in my pay, that,are prefently to be imployed
' abroad ; but as for all other parts, I fhall take care it (hall be done as yc.u delirc.
' After which the Lord Chancellor faid, he had fomewhatmore to impart to the Houfe
' by the Kings Command, which was,
That
C 119 )
That bit Majefty laft night , having fpoken with feveral Members of bothv Houfes,
found fame diffatisfaSion remaining concerning his Anfwer to their Addrefs in the par-
ticular of the Officers to be employed abroad, of which number he had rive or fix
that were of the beft Officers of France and Flanders, and .being his own Subjtrds,
he had been very follicitous to get ; but if that bred any nmhjge , the King com-
manded him to let them know , that be riftlvet to give both bit Houfcs fall fatirfatiion to
their di fires. .
There ve(K another particular that the Lord Chancellor faid he thought fit to acquaint
them with, which, though it was by hi-s Majefty's leave, yet it was not by his Com-
mand, however he thought it his duty to "acquaint the Houfe with it, ( Mr. Se-
cretary Coventry intending to acquaint the Houfe of Commons with the fame )
That bit Majtfty had the laft night, in fwrfaance of what be then intended, and de-
tlared thi* morning , concerning the fafpeajion of Penal Laves not being for the future
dr.ta?n either into Confequence or Example, caufed the Original Declaration, under the Great
Seal , to be cancelled in his preface , rvhtreof himfelf and feveral other Lords of the Com-
<•;'/ were Witness.
Sir Rah Sawyer. Turn to the 10th of March, 1672.
Clerk^ reads. ' Die Lune decimo die Marcil, 1672.
' Ordered , That what my Lord Chancellor faid on Saturday laft concerning
' his Majefty's cauiing the vacating his Indulgence under the Great Seal of Eng-
' gland , (hall be entred into the Journal-Book of. this Houfe as en Saturday
* kit.
Sir Rob. Saayer. We (hall now come to that which pad in the Parliament in itfSj.
— Read the £th of November i<58j.
1
The Journal of the Lords, 1685. put in.
Clerl^ Reads. 'His Majefty being on his Royal Throne adorned with his Regrf *
* Robes and Crown ( the Lords being in their Robes alfo ) commanded the
* Qentleman Ulher to give notice to the Houfe of Commons that they immedi-
c ately attend his Majefty -, who being come , his Majefty made the following
* Speech.
c My Lords and Gentlemen ,
1 After the Storm that feemed to be coming upon us when we parted laft ,
' I am glad to meet you all ag^aiu in fo great peace and quietnefs ; God Al-
' mighty be praifed , by whofe bletling that Rebellion was fupprcfted ; but when
' I rerled: what an inconfiderable number of men began it , and how long thty
* carried it on without any oppoGtion , I hope every body will be convinced that
' the Militia, which hath hitherto been fo much depended upon, is not fufficient
' for fuch Occafions , and that there is nothing but a good force of well difci-
1 plined Troops in conftant pay that can defend us from fuch as either at home
4 or abroad are difpofed to difturb us.
' And, in truth, rhy concern for. the peace and quiet of my Subjects, as well as
' for the (afety of the Government , made me think it nectflary to increafe the
* number to the proportion I have done ; this I owed as well to the honour as to
' the _fecurity of the Nation, whofe Reputation was fo infinitely expofcd unto all*
* our Neigbours , by having lain open to this late wretched Attempt ; that it is
' not to be repaired without keeping fuch a Body of Men on foot, that none may
* ever have the thoughts again of finding u» fo miferably unprovided.
' It is for the fupport of this great Cnarge, which is now more than double to
* what it -was, that 1 ask your afiiftance in givuig me a Supply anfweraule to
' the Expence it brings -along with it ; And I cannot doubt, but what I have be-
* gun fo much for the honour and defence of the Government,- wHl be continued by
' you with all the chearfulnefs and readinefe that is requihte for a Work of fo greafi
1 importance.
"•Let no mantakf Except inn that there are fame Officers in the Army not qualified according tot be
* late 'lijts lor their Imployments : The Gentlemen, I muft tell you, are molt ct them
* well known to me, and having formerly ferved with me on feveral Qccahpus, and al-
ways
C
' ways approved the Loyalty of their Principles by their Practices , I think them fit
' noto to be employed under mci and will deal plainly with you , that after having
' had the bcncrit of their Services in fuch time of need and danger, / will neither ex*
1 pnfe them to drfgrace, nof my fclf to the want of them, if there jhould he another Rebellion
1 to nukf them nectjptry to me.
' I am afraid fome men may be fo wkked to hope and cxpedt that a difference
' may happen between you and me upon this Occallon ; but when you connder what
4 advantages have lifcn to us in a few months by the good underftanding we have
' hitherto had , what wonderful effects it has already produced in the change of the
' whole fccne of Affairs abroad, fo much more to the honour of the Nation, and the
' figure it ought to make in the World, and that nothing can hinder a further pro-
' grefs in this way, to all our fatisfactions , but Fears and Jealoufies amongft our
1 ielves : I will not apprehend that fuch a misfortune can befall us as a Divifion , or
' but a Coldnefs between me and you; nor that any thing can (hake you in your Steadi-
' nefs and Loyalty to me, who, by God's bleulng, will ever make you all returns of
' kindnefs and protection, with a Refolution to venture even my own Life in the de-
' fence of the true Intereft of this Kingdom.
Sir Rob. Sawyer. Turn to the Commons Journal the i6th of November, itfSj.
The Journal of the Houfe of Commons put in.
CUrk. reads. ' Die Lxne xvi. <//> Novemb. i<58y.
' Moft Gracious Sovereign :
' We your Majefty's moft Loyal and Faithful Subjects, the Commons in Parliament
1 aflembled, do in the firit place C as in duty bound) return your Majefty our moft
' humble and hearty thanks for your great care and conduit in the fuppreilion of the
' late Rebellion , which threatned the overthrow of this Government both in Charch
c and State, and the utrermoft extirpation of our Religion by Law eftablifhed, which
f is moft dear unto us , and which your Majefty has been pleafed to give us repeated
* affurances you will always defend and fupport, which with all grateful hearts we fhall
' ever acknowledg.
' We further crave leave to acquaint your Majefty, That we have with all duty and
c readinete taken into our confederation your Majefty's gracious Speech to us j and at to
' that fart of it relating to the Officers in the Army not qualified for then Imployment according
' to an An of Parliament made in the 2<$th year of the Reign of your Mnjejty's Royal Brother
' of blefled memory, Intituled, An Act for preventing danger that may happen by Po-
' pifh Recufants : We do out of our bounden duty humbly reprefent unto your Majejiy, That thofe
4 Officers cannot by Law be capable of their Employments, and that tlx Incapacities they bring
' upon themfelves thereby, can no ways be takgn off but by Aft of Parliament.
' Therefore out of the great deference and duty we owe unto your Majefty ( who has
' been gracioufly pleafed to take notice of their Services to you ) we are preparing a BiS
' topafs both Hnufes for your Royal Affent, to indemnify them feom the Penalties tlxy have now
' incurred ; and becaufe the continuance of them in their Employments may be takgn to be a di-
' fpencing with that Law without AS of Parliament, the confequcnce of which if of the greatest
' concern to the Rights of aV your Majefty's Dutiful and Loyal Swbje&s, and to all the Laws
t ' made for the fectirity of their Religion '-,
' We therefore, the Knights, Citriens and Burgefles of your Majefty's Houfe of.Com-
' mons, do moft humbly befeech your Majejly, that you would be gracioufy pleafed to grvt fuch
directions therein, that no Apprehenfions ur Jealoufies may remain in th^ hearts of yettr M&je-
' fy's &no<L **£ faithful Subjetts.
Mr. Polixfen. My Lord , We pray that tfiefe half dozen lines of the Statute I Eliz.
may be read.
A Statute-bock. was then produced by Mr. Ince.
'•>• C. J. No, We Will have it read out of our own Book, which was delivered in-
to Court.
Cle rereads. This is i Eliz. cap. 2. An Adt for Uniformity of Religion, «^c. Where-
about is it ?
Mr. Inc(. 'Tis the i?th Paragraph, [at thefe Words] — And fcr the. due exe-
cution, &~c.
Clerk.
C i»i
Cttrk. "Heads. And for due Execution hereof, the Queens mo.Pt Excellent Mijefty,
the Lords Spiritual and Temporal in this prefent Parliament Aflembled, do in Gods
Name earneftly Require and Charge all the Archbifhops, Bifhops, and other Ordinaries,
that they (hall endeavour themfelves to the utmoft of their knowledge, that the due
and true Execution hereof may be had throughout their Dioceffes and Charges, as they
will anfwcr before God for fuch Evils and Plagues, wherewith Almighty God may
juftly punifh his People for neglecting this good and wholefom Law.
Mr. Serjsattt Levinz. Now, my Lord, if your Lordfhip pleafes, the Charge is a
Charge for a Libel, and there are two things to be Confidered.
Firft, Whether the Bifhops did deliver this Paper to the King ? But that we leave
upon the Evidence that has been given :, oncly we fay, there has been no dired proof
of that-
lu the next place, Suppofing they did deliver this Petition to the King, Whether
this be a Libel upon the Matter of it, the manner of deljyering it, or the Perfon* that
did it >
And with fubmiffion, iwy Lord, this cannot be a Libel, although it be true, that
they did fo deliver it.
Firft, my Lord, there is a little difingenuity offered to my Lords the Bifhops, in
only fettidg forth part and not the whole, in only reciting the Body and not the
Prayer.
But, my Lord, with your Lordfhips favour, taking the Petitionary part, and
adding ft to the oth«, it quite alters the Nature of the tiling, for it may be, a Com-
plaint without feeking redrefs might be an ill matter , but here taking the whole to-
gether, it appears to be a Complaint of a Grievance, and a defire to be eafeci of it.
With your Lordfhips favour, the Subjects have a right to Petition the King in all
their Grievances, fo fay all our Books of Law, and fo fays the Statute of the Thir-
teenth of the late King i They may Petition, and come and deliver their Petition
under the number often, as heretofore they might have done, (fays the Statute) fo •
that they all times have had a right lo to do, and indeed if they had not, it were the
rnoft lamentable thing in the World, that Men mud have Grievances upon them,
and yet they not to be admitted to feek Relief in an humble way.
Now, my Lord, this is a Petition fetting forth a Grievance, and praying his Ma-
jefly to give Relief. And what is this Grievance? It is that Command of his, by
that Order made upon my Lords the Bifhops, to di(hibute the Declaration, and caufe
it to be read in the Churches : And pray, my Lord, let us confider, what the ErTeds
and Confequences of that Distribution and Reading is -, It is to tell the People, that
they neejl not fubmit to the AS of Vntfjrmny^ nor to any Ad of Parliiment made
about Ecclefiaftical Matters, for they are fufpended and difpenfed with ^ this my
Lords the Bifhops muft do, if they obey this Order > but your Lord (hip fees, if they
do it, they lie under an Anathema by the Statute of i EHz. tor there they are under a
Curfe if they do not look to the prefervation and obfervation of that Ad > But this
Command to Diftribute and Read the Declaration, whereby all thefe Laws ate dif-
penfed with, is to let the People know, they will not do what that Ad requires of
them.
Now, with your Lordfhips favour, my Lords the Bifhops lying* under this prefTure,
the weight of which was very grievous upon them, they by Petition apply to the
I^ing to be eafed of it, which they might do, as Subjects s bcfides, my Lord, they are
Peers of the Realm, and were moft of them fitting as fuch, in the lali Parliament,
where ( as }ou have heard) it was declared, fuch a Difpenfation could not be, and
then in what a Cafe ihould they have been, if they fhouid have diftributed this De-
claration, which was fo contrary to their own Adings in Parliament ^ What could
they have anfwered for themfelrcs, had they thus contributed to this Declaration?
when they had themfelves before declared, that the King could notdifpenfe.
And that was no new thing, for it had been (b declared in a Parliament before, in
twoSefiions of it, in the late Kings Reign, within a very little time one of another i
and fuch a Parliament that were fo liberal in their Aides to the Crown, that a Man
would not think they (hould go about to deprive the Crown of any of its Rights ;
it was a Parliament that did do as great fervices for the CroWn as ever any did, and
therefore there is no reafon to fufped, that if the Krng had bad fuch a power, they
would have appealed foearndt againft k.
I i Put
( 122 )
But. tuy'Lord, if your Lordfhip pleafes, thcfc are not the beg&inings of this matter,
for we have fhcwed you from the Fifteenth of Richard the Second, that there was a
power granted by the Parliament to the King to difpenfc with a particular Aft of Par-
liament, which argues, that it could not be without an Aft of Parliament. And in
1662. 'tis faid exprcfly, that they cannot be difpcnfed with, but by an A& of Par-
liament : 'Tis faid fo again in 1672 i the King was then pleafcd to aflume tohimfelf
fuch a power, as is pretended to in this Declaration » yet, upon Information from his
Houfes of Parliament, the King declared himfclf fatished, that he had no fuch power,
Cancelled his Declaration, and promifed, that it fhould not be drawn into Confequence
or Example. And fo the Commons by their Protection faid in Richard the Seconds
time , That it was a Novelty, and fhould not be drawn into Confequence or Ex-
ample.
Now, my Lord, if your Lordfhip pleafes, if this matter that was Commanded the
Bifhops to do, were fomething which the Law did not allow of, furely then, my Lords,
the Bifliops had all the realbn in the World to apply themfelves to the King, in an
humble manner to acquaint him, why they could not obey his Commands > and to
feck relief againft that, which lay fo heavy upon them.
Truly, my Lord. Mr. Attorney was very right in the opening of this Caufe at firft,
that is, That the Government ought not to receive affronts, no, nor the Inferior Of-
ficers ate nor to be a/Fronted, a Juuice of Peace, fo low a Man in Office, is not, for a
Man to fay to a Juftice of Peace, when he is executing his Office, that he does not do
right, is a great Crime, and Mr. Attorney faid right in it ^ But fuppofe a Juftice of
Peace were making of a Warrant to a Conttable, to do fbmething that was not Legal
for him to do, if the Conftable fhould Petition this Juftice of the Peace, and therein
fet forth, Sir, you are about to command me to do a thing, which, 1 conceive, is not
Legal, furely that would not be a Crime that he was to be punifhed for, for he does
but feek relief, and (hew his Grievance in a proper way, and the diftrefs he is
under.
My Lord, this is the Bifhops Cafe with fubmiflion, they are under a diftrefs, being
Commanded to do a thing which they take not to be Legal, and they, with all hu-
mility by way of Petition, acquaint the King with this Diftrefs of theirs, and pray
him, that he will pleafe to give Relief.
My Lord, there is no Law, but is either an Ad of Parliament, or the Common
Law, for an Adi of Parliament there is none for fuch a power, all that we have of
it in Parliamentary Proceedings, is againft it :, and for the Common Law, ( fo far as I
have read of it) I never did meet with any thing of fuch a Nature, as a Grant or Dif-
pcnfation that pretended to difptnfe with any one whole Aft of Parliament} I have
not fo much as heard of any fuch thing mentioned by any of the Kings Council i But
here, my Lord, is a Difpenfation that difpenfes with a great many Laws at once, truly,
I cannot take upon me to tell how many, there may be forty or above, ( for ought I
know.)
. Therefore, my Lord, the Bifhops lying under fuch a Grievance as this, and under
fuch a Preffure, being Ordered to diftribute this Declaration in all their Churches,
which was to tell the People they ought to be under no Law in this Cafe, which furely
was a very great PrefTure, both in point of Law and Confcience too, they lying under
fuch Obligations to the contrary, as they did. With fubmiftion to your Lordfhip and
you, Gentlemen of the Jury, If they did deliver this Petition, ( Publifhing of it I will
not talk of, for there has been no proof of a Publication") but a delivering of a Peti-
tion to his Majcfty in the molt fecret and decent manner that could be imagined: My
Lords the Bifliops are not guilty of the Matter Charged upon them in this Informa-
tion > it has bien exprefly proved, that they did not go to difperfe it abroad, but
only dclivcr'd it to the King himfelfi And, in fhort, my Lord, if this (hould be a
Libel, I know not how fad the Condition of us all would be, if we may not Petition,
when we fuflcr.
Mr. Finch. My Lord, I Challenge them to fhew us any one Inftance of fuch a De-
claration, fuch a General Difpenfation of Laws from the Conqueft, till 1672. Therirtt
Umbrage of fuch a thing is, that of Car. 2. 1662 but your Lordfhip hears the Decla-
ration of the Parliament upon it. Before that, as there was no fuch thing, fo your
Lord/hip fees, what the Pailiament did to enable the King (not to do this thing, but
{bmcthing like it) in Ricbjrd the Seconds Time, where you fee the Parliament. did
give the Kirg a Power to Difpcr.fe with the Stature of Provifors for a time ^ but at
(he
the fame time declared, that very Grant of thei^own, to be a Novelty, and that n
Chould not be drawn into Confequence or Example.
My Lord, we fhall leave it upon this Point, to fufpend Laws is all one, as to abro-
gate Laws, for fo long as a Law is fufpended, "whether the Sufpenfion be 1 cm-
porary, or whether it be for ever, whether it be at once, or at feveral times, the Law
is abrogated to all Intents and Purpofes : But the Abrogation of Laws is part of the
Legiflature, that Legiflative Power is lodged ( as I (aid before) and 1 could never rind it
othcrwife, in all our Law ) in King, Lords, and Commons
Ld. Cb. Jaji. You did open that before, Mr. Finch.
Mr, Finch. With this, my Lord, That my Lords the Bifliops finding this Order,
made upon them to publith this Declaration, did what in Duty they were bound to
do, and unlefs the Jury do find, that they have done that which is contrary to Law,
and to the Duty of their places, and that this Petition is a Libel, and a feditious Li-
bel, with an intent to ftir up Sedition among the People, ( We rely upon it ) My
Lords, the Bifliops, can never be found Guilty upon this Information.
Ld. Cb. Jitft. Have you now done, Gentlemen ?
Mr. ¥ inch. Yes, my Lord, till they give us further occafion, if they have any other
Evidence to offer, we muft Anfwer it, if not, this is theA'nfvver we give to what
they have faid.
Mr. Solicit. Gen. We make no Bargain with you : If you have done, fay fo.
Ld.Cb. Juji. You muft know, that you are not to have the la(i word.
Mr. Solicit. Gen. You have been three hours already, if you have any more to fay,
pray, conclude.
Mr. Finch. If they fay they have no more Evidence, then we know what we have
to do.
Ld. Cb. Ju{l. If you do'fay any thing more, pray let me advife you one thing,
don't fay the fame thing over and over again, for after lo much time fpent, it is irk-
fome to all Company, as well as to me.
Mr. finch. My Lord, we have no more Evidence to offer to your Lordfliip atpre-
fent, unlefs they, by offering new Evidence, give us occafion to Reply upon them.
Ld. Cb. Jitjl. Gentlemen, you (hall have all the Legal favour and advantage that can
be ^ but, pray, let us keep to an orderly decent Method of proceeding.
Sr.Rob. Sawyer. Pray, my Lord, favour me a word before we conclude, My Lord,
I do find very few Attempts of this Nature, in any Kings Reign.
In the Reign of Henry the Fourth, there was an A& of Parliament that Foreigners
fliould have a Free Trade in the City of London, notwithftanding the Franchifes of
London i after the Parliament rofe, the King iffued out his Proclamation, forbidding
the Execution of that Law, and Commanding that it fliould be in Sufpence, Vfq*c ad
Proximum t arliamentttm, yet that was held to be again ft Law.
Ld. Cb. Juft. Sir Robert Sawyer, that which you are to look to, is the publiflung of
this Paper, and whether it be a Libel or no. And as to the buiinefs of the Parliaments
you mentioned, they are not <o the purpofe. ^
Sir Rot>. Sj&yer. My Lord, I fay, I would put it where the Queftion truly lyes, if they
don't difpute the Point, then we need not labour it :, but I dont know,whether they will
or no, and therefore I beg your Lordftiips favour to mention one Cafe more, and that
is upon the Statute of 31 Hen.%. cap. 8. Which enables the King by Proclamation in
many Cafes to create the Law, which Statute was repealed by i.Edu>. 6. cap. 12. That
very Aft does recite, that the Law is not to be altered, or reftrained, but by Aft "of
.Parliament, and therefore the Parliament enables the King to do fo and lo : But that
was fuch a Power, that the Parliament thought not fit to continue, and it was after-
wards Repealed, but-it (hews, that at that time the Parliament was of the fame Opinion,
as to this Matter, that other Parliaments have been fincc.
Mr. Sommerj. My Lord, I would only mention the great Cafe of Ibomas and Sorrel
in the Exchequer Chamber upon the validity of a Difpenfation of the Statute of Ed-
ward the Sixth, touching Selling of Wine. There it was the Opinion of every cne of
the Judges, and they did lay it down as a fetled Pofition, that there never could be
an Abrogation, or a Sufpenfion, ( which is a Temporary Abrogation ) of ah Act of Par-
liament, but by the Legiflative Power. That was a Foundation laid down quite tho-
rough the debate of that Cafe : Indeed it was difputcd, how far the King might di-
fpenfc with the Penalties in fuch a particular Law, as to particular Perfons, but it was
agreed, by all, that the King had no power to fufpend any Law : And, my Lord, I
dare App«al to Mr. Attorney Geacral hircfelf, ^whether in the Cafe of Gaddtn and
tJjlfi-, which w#* lately in this Cothrr, to make good that Difpenfatic-n, he did not
ufc it as an Argument then, that it could rot be expounded into a Sufpenfion, He ad-
mitted, it not to be in Kings power, to fufpend a Law, but that hcmit'ht j?,ivc a Dif-
pcnfation to a particular Peifon,Xvas all, that he took upon him to juftirie at that
time.
My Lord, by the Law of all civilised Nations, if the Prince does require fbmething
to be done, which the Perfon ( who is to do it ) rakts to be unlawful, it is not only
lawful, but his Duty, Rrfcribere Principi, this is all that is done here, and that in the
moft humble manner, that could be thought of i your Lordfhip will pkafc to obferve
how far it went, how careful they were, that they might not any way juftly offend
the King. They did not interpofe by giving advice, as Peers, they never i.'irr'd till it
was brought home to themfclves, when they made their Petition, all tbey beg, is,
that it may not fo far be inlifted upon by his Majefty, as to oblige them, to read it,
whatever they thought of it, they do not take upon them to dcfirc the Declaration
to be revoked.
My Lord, as to Mattters of Faft alledged in the faid Petition, that they are per-
fectly true , we have (hewn by the Journals of both Houfes. In every one of thofc
Years, which are mentioned in the Petition, this Power of Difpenfation was confi-
dered in Parliament, and, upon debate, Declared to be contrary to Law, there could be
noDtiign to diminish the Prerogative, becaufe the King hath no fucb Prerogative.
Seditious, my Lord, it could not be, nor could poifibly fcir up Sedition in the minds
of the People, becaufe it was prefented to the King, in private and alone, falfe «
could not be, becaufe the Matter of it is true. There would be notliing of Malice!
for the occafion was not fought, the thing was preflcd upon them, and a Libel it could
not be. becaufe the intent was innocent, and they kept wjthin the*bounds fer by the
Aft of Parliament, that gives the Subject leave to apply to nis Prince by Petition,
when he is agrieved.
Mr. Att. Gen. Have you done, Gentlemen ?
Mr.fiHcb. We have done, Sir.
Mr. Att.Gcn. My Lord, I (hall be a great deal more merciful to your Lordftiip, and
the Jury, than they have been, who have fpent thefe four hours, in that which I think
is not pertinent to the Cafe in Queftion : They have let thcmfelves into large Dif-
<ourfes, making great Complaints of the Hardmips put upon my Lords, theBifhops,
by the Order of Councel to read his Majeflies Declaration ; and putting thcfe words
into the Information of Seditious, Malicious and Scandalous: But, my Lord, I admire
that Sir Rohrt Sawyer (hould make fuch Reflections, and Obfcrvations upon thefe
words, when I am fure he will fcarce rind any one of his own exhibiting, that has
fo few of thofe aggravating words as this has, and therefore, that might have been
very well fpared, efpecially by him.
In the next pla^e, my Lord, we are told, what great Danger our Religion is in by
this Declaration, I hope we have an equal concern for that with them, or any Perfon
elfe nbatfoevei : But hotvever, I am fure our Reiigiorr teaches us, not to prcfervie
our Religion, or our Lives, by any illegal Courfes, and the Queftion is, whether the
Courfe that my Lords the Bifhops have taken to preferve ( as they fjy ) our Religion,
be Legal or not j if it be not Legal, then I am fure our Religion will not jultiric the
ufing fuch a Courfe, for never fo good an End.
My Lord, for the thing it fcif, I do admire that they, in fo longs time and fearch
that they have made, (hould not ( which I expend ) produce more Prefidents of fuch
a Paper as this is :, They challenge us to (hew, that ever there was any fuch Declara-
tion as this, I'l« turn the fame Challenge upon rhenv, Shew me ar.y one inftance, that
ever fo many Bilhops did come under pretence of a Petition, to reflect upon the King
out of Parliament.
Sir Robert Sawyer. Is that your way of Anfwering, Mr. Attorney.
Mr. Attorney GetteraL Pray, Sir Robert Sawytr, you have had your time, don't in-
terrupt us, fure we have as much right to be heard as you.
Lord Chief Jnjlice. You have been heard over and over again, Sir Robert Stayerf
already.
.Sir Robert Strvyer. My Lord, I don't intend to interrupt him.
Mr. Solicitor General. We cannot make them be quiet, they will ftUl be chopping
ki upon us.
[• i Mr.
C 125 )
Mr. Attorney Genera!. That is an Art that fome People have always
hot to permit any body tofpeak, but themfelves.
But, my Lord, I fjy, that thofe few Infhnces, that they have produced, are no-
thing at all to this Matter, that is now upon Trial before your Lordfhip and this
Jury j nay, they are Evidences againft them, for they are only matters tranfatted
in Parliament, which are no more 10 be applied to this thing that is in Controverfy
now, than any the moft remote matter that could be thought of :, and though they
have gone fo high in point of time, as to the Reign of Richard the Second, yet
they have nothing between that and the late Kings Reign, to which at !a!t they
have defcended down.
But, my Lord, I fay, that all the talk of Richard the Seconds time is wholly
cut of the Cafe j truly, 1 do not doubt, but that fn Ricb.ird the Seconds time they
inight rind a great many Inltances of fome fuch fort of Petitioning as this, for our
Hiftories tell us, that at that time they had 4.0000 Men in Armsagainll the King,
and we know the troubles that were in that Kings Reign, and how at length he
was depofed ^ but certainly there may be found Instances more applicable to the
Cafe, than thofe they produce ^ as for thofe in King Charles the Seconds cirre, do
they any ways juftifie this Petition ? for now they dre upon justifying the words
of their Petition, that this power has been declared to be illegal in 1662. 1672,
and 1685.
For what was done in 1662, do they thew ar,y thing more than fome Debates
in the Houfe of Commons? And at lafi an Addrefs, an Anfwer by the King, a
Reply of the Commons, and then the thing dies. Pray, n/y Lord, is a Tranfa-
dhon in the Houfe of Commons, a Declaration of Parliament ? Siire. 1 think, no
one will affirm thit any thing can be a Declaration of Parliament, unle'fs he that
is the Principal part Concurs, who is the King ? tor if you fpcak of the Court of
Parliament in a Legal fenfe, you mu(t fpeak of the whole Body, Kiug, Lords,
and Commons, and a Declaration in Parliament muft be by all the whole Body,
and that is properly an Adt of Parliament.
Why then they come to the year 16/2, where your Lordfhip obferves, that the
late King did inlitt upon i.is Right, for after the Difpure which was in 16^2, his
Majefiy did ifiue out another Declaration, and when it comes to be debated hi
Parliament, he infills upon his Right in Ecchfiaftical Matters, and though his De-
claration was Cancelled, >.t there is no formal Difclaimer of the Right. .
,
My £ord, after all, how far thefc things tha't they have offered may work, as
to the point that they have debated, I (ball not row meddle with it, nor give
your Lordfoip any trouble about it, becaufe it is not at all pertinent to the Cafe in
queftion, for I do ( after all this nine and pains that they have fpentj take leave to
fay, that thefe Gentlemen have fpeht all this timd to no purpofe.
Lord Cb. Jut. Yes, Mr., Attorney, I'le tell you what tljey offer, which it will
lie upon, you to give an Anfwer to > They would have you (hew, how this has
diftiubed the Government, or diminifhed the Kings Authority ?
Mr.Att.Gen. Whether a Libel be trueornot,as to the matter of Facl, was it ever
yet in any Court of Jutfice permitted to be made a queftion, whether it be a Libel ot
not ? Or whether the Party be punifhable for it v And therefore I wonder to hear thefe
Gentlemen to fay, that becaufe it is not a falfc one, therefore 'tis not a Libel :,
Suppofe a Man fliould fpeak fcandalous Matter of a»y Noble Lord here, or of any
of my Lords the Bifhops, and a Scandalum Magnat^m be brought for it, though
rhat v/hich is fpoken has been true, yet it has been the Opinion of the Courts of
K k - taw'
Law, that the Party cannot juftifie it,. by reafon it tends to the difturbirlg of the
Peace, to publifh any thing that is n.~':rof Scandal i The only thing that is to be
I into, is, whether there be any thing in this Paper, tint is Kdl-v ling and Scan-
dalous , and not whether it be true or ne, for if any Man Ihall t.v»r ^-JiiJi-ijIly^
and out of a Legal Courfc and way, rtflecT: upon any of the great Officers of the
Kingdom, nay, if it be but upon any Inferior Magiltrate, he is to be p'.mifhtd, and
is not to make his Complaint againft them, iinkfs he do it in a proper way ^ A
Man may Petition a Judge, but if anv Man in that Petition ftwll come and t..ll
the Judge, Sir, you have given an Illegal judgment againft me, and 1 cannot in Ho-
nour, Prudence or Confcicnce obey it, 1 do not doubt, nor will any Man, but that
he that (hould fo fay would be laid by the Heels, though the Judgment perhaps
might be illegal.
If a Man fliall come to Petition the King, as (we all know) the Council
Doors are thronged with Petitioners every day, and Acccfs to the King by Petition
is open to every body, the mod Interior Perfon is allowed to Petition the King,
but becaufe he may do fo, may he therefore fogged what he pleafcsin his Petition*
ftiall he come and tell the King to his Face, what he does is Illegal ? I only fpeak
this, becaufe they fay, in this Cafe, his Majefty gave them leave to come to him
to deliver their Petition i but the King did not underhand the Nature of their Pe-
tition, I fuppofe, when he faid, he gave them leave to come to him.
My Lord, for this Matter we have Authority enough in our Books, particularly
there is the Cafe of Wrenham in my Lord Hobart^ the Lord Chancellor had made
a Decrtv^ againft him, and he Petitioned the King, that the Caufc migh< be re-
heard , and in that Petition he Complains of Injuftice done him by my Lord
Chancellor, and he put into his Petition many reflecting things, this, my Lord,
was pjniihed as a Libel in the Stat Chamber i and, in that Book it was faid, that
though it be lawful for the Subject to Petition the King againft any Proceedings
fcy the Judges, yet itmuft not be done with Reflections, nor with Words that turn
to the Accufation or Scandal of any of the Kings Magistrates or Officers, and the
Juftice of the Decree is not to be queftioned in the Cafe j for there Wrenbam in
fis Defence would have opened the particulars, wherein he thought the Decree was
unjuft. but that the Court would not meddle with, nor would allow him to juftifie
For fuch * ; tlity in the Decree ••> fo in this Cafe, you arc not to draw in queftion
the truth . (< liood of the Matter coraplai»ed againft, for you muft take the way
the Law has prefcribed, and profecute your Right in a Legal Courfc, and not by
Scandal and Libelling.
My Lord, there 5s a great deal of difference between no'r doing a thing that is
Commanded, if one be of Opinion that it is unlawful, and coming to the King
with a Petition highly reflecting upon the Government, and with Scandalous Ex-
preflions, telling him, Sir, you Aft illegally, you require of us that which is
againft Prudence, Honour, or ContcLence, as my Lords the Bifhops are plcafed
to do in this Petition of theirs. 1 appeal to any Lord here, that if any Man mould
five him fuch Language, either by Word of Mouth or Petition, whether he would
ear it> without feekingfatisfa&ionand reparation by the Law ?
My Lord, there is no greater proof of the Influence of this Matter than the
Croud of this day-, and the Harangue* that hath been made, is it not apparent that
the taking this Liberty to Canvas and difpute the Kings Power and Authority,
and to Cenfure his Actions, poffefs the People with ftrange O(*nions, and raifes
Difcontents and Jraloufies, as if the free Courfe of Law were reftrajned, and
Arbitrary Will and Pleafure fet up inftead cf it ?
My Lori, there is one thing that appears upon the Face of the Information,
which (hews this not to be the right Courfc, and ff mf Lords the Biftops had
given
c I;
tfcen.ulves tne opportunity, of reading the Dcxhration lerioufiy, tL
(have found i:i the end of the Declaration, that the Kir>g was rcfi.lvcd f;> «.
pavlian.ent in Naien.t\r , trighil-not my Lords the Bifhops hive accpi?!ad a'h
their pallive Obedience till the Parliament met? Bit nothing would lervc them,
buf thisn and this rraift be done out of Parliament, for which there i< no Frdi<ii.T/
'cm be (hewn, and this muft be done in fiich a manner, as your Loru'Jhip fees the
tonfcquencc of, By your Trouble cf this Day.
There is one thing I forgot to fpeak to, they retl.tir, that it h taid Malici-
ous and Seditious, and there is no Malice or Sedition/ found, we know very well,
that that follows the Fa ft, thofe things atife by Conllruftion of Law. , out of the
Fad;. It the thing be illegal, the Law fays' it is Seditious, a Man (ball nortoroe
and fdy, he meant no harm in it : That was the Cafe of Williams in his trcafona-
blc Book, ( fays h«) I only intended to Warn the King of the Danger; approach-
ing, and concludes his Book with God fave the King, but no Man will fay, that
a good Preface at the beginning, or a good Prayer at the end., fhould excufe Trea-
fon, or Sedition in fhe Body of a Book j \( \ meet another Man in the Street and
kill him, though I never faw him in my Life, the Indiclment is, that it was ex
JWalttia Pracogitata, as it often happens, that a Pcrfon kills one he never had ac-
kjuaimance with before, and in favurem wr<e, it the Nature of the Faft be fo, the
}ury are permitted to find according to the Nature of the Cafe, but in firiclnels of
Law, there is Malice implyed : Bot, rny Lord, 1 think thefe Matters aje fo Com-
mon, and that is a Point that has been fo often fetled, that the form of the Irt-
diclment anti-Information muft follow the Nature of the Faft, that I need not in-
fift upon it, if the Aft be unlawful, the Law fupplies the Malice, and evil Inten-
tions.
Mr. Sdlicit.Cen. My Lord and Gentlemen of the Jury, lam of Counfel in this
Cafe for the King, and I (hall take leave to proceed in this Method , Firlr, I (ball
put the Cafe of my Lords the Bifliops, and then confider the Arguments that have
"teen ufed in their Defence, and anfwer them as much as is material to beanfwer-
<d » and then leave it to your Lordftiip and the Juries Conlideration, whethet
has been faidby thefe Gentlemen, wtigh any thing in this Cafe ?
Firft, my Lord, I take it for granted, and I think the Matter is pretty plain by
this time, by my Lord Prefidcnts Evidence, and their own Confellion ^ that it is
hot to be difputed, but that this Paper wa? prefented by thefe Lords to the King,
I think there is no .great difficulty in that Matter at all» but I juli touch upon it,
btcaufe t would follow them in their own Method.
1*hcn,my Lnrd, let us take this Cafe as it is, upon the Nature of the Petition^
ind the Evidence that they have given, and then let us fee, whether that will
juuitic the thing that is done : For the bufinefs of Petitioning, I would dUtinguiQj
and enquire, Whether n:y Lords the Bi(hrps,out of Parliament can prefent any
Petition to the rting : I do agree, that in Tarliament the Lords and Commons may
make AddreiTes to the King, and fignifie their D( fires, and make known their
Grievances there, and there is no doubt, but that is a natural and proper way of
Application. For in the beginning of the Parliament, there are Receivers of Pe-
titions appointed, and upon Debates, there are Committees appointed, to draw up
Petitions and Addreflcs, but to come and deduce an Argument, that bccaufc the
Lords in Parliament have done thus, (there being fuch Methods of Proceedings
ufual in Parliaments ) therefore my Lords the Bifhops may do it out of Poulu-
ment, that is certainly zNonfet]ttitnr^ no fuch GoncluJion can be drawn from diofc
Prtmifei.
My Lnrd, I (hall endeavour to lay the Fact before you, as it really is, and then
Coafidctj what is proper for the Court to take notice of, as Legal Proof or V -
dcnce:
dence : And I take it, all thofe Prefidcnts that they have produced, of wFiat
the Lords did, and what the Commons did, in Parliament, is no Warrant for them
to flicker thcmfclves under, againft the Information here in Quedion.
Here Mr. Jit/. Pavel fpake afide to the Lord Cbitf Jitftice^ thus :
Mr. jxit Porvel^ My Lord, this is ftrange Dodrrinc j (hall not the Subject have
Liberty to Petition the King, but in Parliament ? If that be Law, the Subject is in a
rniferable Cafe.
Ld Cb. Jufi. Brother, let him go on, we will hear him out, tho' I approve
rot of his Pufitioa.
Mr. Solicit. General. The Lords may Addrefs to the King in Parliament , and
the Commons may do it, but therefore, that the Bifhops may do it out of Parlia-
ment, does not follow. I heard nothing faid, that could have given Colour to fuch
a thing, but the Curfe that has been read in i Elizabeth.
But pray, rry Lord, let usconOder that Evidence they have given, they have
begun with that Record in Richard the Seconds time, and what is that / Ttiat
the King may difpenfe with the Statute of Provifors, till the meeting of the next
Parliament, and a Protection of the Commons at the end of it, whether that be
an A& of Parliament, that is Declaratory of the Common Law, or Introdudlo-
ry of anew Law, Nt>* CoHjiat; and for ought appears, it might be a Declaratory
A<3 : And if fo, it is a Proof of the Kings Prerogative of Difpcnfing. Jt might
bean Aft in Affirmance of the Kings Prerogative, as there are agreat many fuch,
we very well know j and generally mpft of the Laws, in that kind, are in Affirm-
ance of the Kings power, fo that the Law turns as an Argument for the
King Prerogative, and they have given him that, which will turn upon them-
felvcs, foit Hood in Hi third the Seconds time, but whether that be an Argu-
ment one way or other Conclufive, is left to your Lordfhip, and the Jury.
Ay, but fay they, there is no Execution of fuch a Power, till very lately,-
and the rirtf Inftance, that they produce, is, that in the Year 1662. But your
Lordfhip knows, that before the Reign of Henry the Fourth , there was great
Jurifdiftion afTumed by the Lords in Original Caufes, then comes the Statute of
Appeals, i Hen. 4. which takes notice, that before that time, the Lords had aflu-
med an Original Jurifdi&ion in all Caufes, and would proceed, and determine
them in Pailiament, and out of Parliament, and it fell out to be fo great a Grie-
vance, that it was thought neceflary to make a Law againft if, that Appeals in
Parliament fhould be abolifhed and ddtroyed, and then comes that Law in favour
of the Subject of f.n?l*nd, and that fettles the bounds between the King and the
Lords in a great meafure •, before that time, the Lords were grown very power-
ful, and where there is a Power, there always will be Applications, and what is
the effect of that Statute i Hen. 4. for all that we endeavour, is, to make things
as plain can be, that no further Applications, no Accufations , no Pro-
' eedings in any Cafe whatfoever be before the Lords in Parliament, unlefs it be
by Impeachment of the Commons > fo that there is the Salvo i and the ufc that I
make of it, is this, The Commons by that very Statute did abolifnthe Power that
the lords had arrogated to themfelves,and Ordered, that they fliouHnot meddle with
any Caufc, but upon the Impeachment of the Houfe of Commons, and eftablifh the
Impeachment of the Commons, which is as ancient as the Parliament, for that was
never yet fpoken againlt j the Power of the Commons Impeaching any Perfon under
the degree of the Prince, and that is the regular legal way, and fothe Commonsaf-
ferted their Ancient Right, and whatfoevtr the Lords took notice of, muft come
by Application of the Commons, thep Conferences were to pafs between the Houfcs,
and both Houfes by Addrefs apply to the King, this is the proper way and courie of
Parliament* of which my Lord Caok. fays. It is known to few, andpradifcd by fewer,
but
[
but it is a Venareble, Honourable way, and this is the Cotirfe that fhould have been
taken by my Lords here, and they fliould have ftayed till the Complaint had come
from the Commons in Parliament, and then it had been Regular for them to Addrds
to the King ; but they were too Quick, too Nimble.
And whereas the Statute of Hen. 4. (ays, That no Lord whatfoever (hall intermeddle
with any Caufe, but by the Impeachment of the Commons, they interpole and give
their advice before their time ; if there be any Irregularity in Parliament, or out of
Parliament, the Commons are to make their Complaint of it, and a Man muft not be
his own Judg, nor his own Gainer, nor muft every Man create Difficulties of his own,
nor fet upon Petitioning in this fort : But there I lay my Foundation, That in fuch a
matter as this, there ought to have been the Impeachment of the Commons in Parlia-
ment before thefe Lords could do any thing ; and I know nothing can be (aid for the
Bifhops more than this, That they were under an Anathema, under the Curfe that Sir Ro-
bert Sawyer fpeaks of, and for fear of that they took this Irregular Courfe : But fbme
would fay, Better fall into the hands of God than of Men ; fome would fay fo, (I fay) '
I know not what they would fay ; but thefe being the Methods that thefe Lords fliould
have taken, they fhould have purfued that Method, the Law fliould have carved out their
Relief and Remedy for them, but they were for going by a new Fancy of their Own.
My Lord, the Law continued thus, and was praftifed fo till the 3. He*. 7. where the
Grievance was found, that Offences in the Intervals of Parliament could not be well puni-
flied, and then comes the Statute that fets up the Court of Star-Chamber, and there Men
were often brought to Judgment andPunifhment for their Sins; and though very great
Power was given them, yet they arrogated to themfelves a greater ; and therefore that
Court is aboliflied by the Statute of the i ph. Car. i. and what is the reafon of abolifli-
ing that Statute ? Becaufe the Star-Chamber did not keep within their bounds that the
Laxv fet them, but aflumed to themfelves a larger Power than the Law would allow ;
and grew very Exorbitant and very Grievous to the Subject .- And another reafon was,
which the Statute of i ph. Car. i. founded it felf upon, becaufe there was nothing that
was brought in Judgment before that Court, but might be relieved and remedied in
the ordinary methods of Juftice in the Courts of Weftminfter Hall : So that upon thofe
two Confederations, becaufe that Courfe was exorbitant, and becaufe all the Sins and
Mifdemeanours that were puniftied there, might be puniflied in an ordinary way of
Law in another Court, and therefore there was no need of that Court, and fo it was
aboliflied, and the Subjed was pretty fafe ; If there was a Crime committed here, a
Man might come properly before your Lordfhip into this Court, and havejt puniflied.
My Lord, they find fault with the Words in the Information, and they fay, Why
are thefe Words put in, Seditious, Malicious ? If the matter be Libellous and Seditious
we may Lawfully fay it, and it is no more than the Law fpeaks, it refults out of the
Matter it felf; and, if it be a Libellous Paper, the Law fays it is Malicioufly and Sedi-
tion fly done, and thefe Gentlemen need not quarrel with us, for fo are all the Infor-
mations in all times paft, and 'tis no more than the Vi & Armis, which is Common
Form. It may be faid,How can the publifhing of a Libel be faid to be done Vi & Armut
That is only a Suppofition of Law ; and they may as well Objeft to the conclusion of
the Information, that it was Contra Cormam & Dignitatem Domini Regit ; if it be an Ille-
gal thing, or a Libel, thefe are necefiary Confequences, it is no'more than the fpeaking
of the Law upon the Fadb
But, my Lord, let ni a little confider, whether this Matter were Warrantable, and
whether they had any Warrant to do what was done ; they pretend it was done upon
this Account, That the King had fet forth a Declaration, and had Ordered them to
Read it ; which to excufe themfelves from, they maki this Petition, or this Libel,
( call it what you will ) and they ufe this as the main Argument, That they lay the
King has done Illegally, and they tell the King plainly fb, that it is Illegal ; for they
rake notice of this Declaration, and fay, it is Illegal ; becaufe it is contrary to the De-
clarations of Parliament in 1662, 1672, and i68y.
Pray, my Lord, let us confider a little, whether there be any Declaration in Par-
liament that they have given Evidence of ; Have they read any Declaration of the
Parliament in 1662? What is a Declaration in Parliament, but a Bill that is pafled by
the King, Lords, and Commons? That we know to be the meaning, and no other; if|
it pafs the Commons it is no Declaration in Parliament ; nay, if it pafs the Lords and <
Commons, it is not a Declaration in Parliament, except it alfo pafs the King ; all thefe
things are Nullities, and the Law takes no notice of them ; we have it in our Books
over and over, and no Court ought to fuffer fuch Evidence to be given. I know thefe
L I Gentlemerf
Gentlemen are very well acquainted with the Authority in Fnz,-Herben'f, Title,
Parliament, there was an Act that was (aid to be by the King and the Lords, but be-
caufe the Commons did not agree to it, it is declared and adjudged to be a Nullity,
and the Court would take no notice of it ; and how can any Man call that a Decla-.
ration in Paiiiamenr, which is only a Vote of the Houfe of Commons, or of the Lords ?
No fure ; that is one of the Heads I go upon, It's not a Declaration in Parliament,
unlefs it be by Act of Parliament *
Indeed, my Lord, there is another fort of a Declaration in Parliament before the
Lords, as they /are a Court of Judicature, and that it a fair Declaration too; for if
any thing comes Judicially before the Lords, either by Writ of Error, or by natural
Appeal from any of the other Courts, or by Adjournment, and there be any Judgment
given, That is a Declaration in Parliament, and may be fairly fb called. Solikewife
there is another Judicial Declaration, which is, when any thing comes before the Lords
Judicially, upon an Impeachment of the Commons, and they give Judgment upon
that Impeachment, That is a Declaration in Parliament : But to fay, that there is any
other Declaration in Parliament, is to lay more than thefe Gentlemen can make out ; if
they will fhew me any fuch I will fubmit to them, and not fpeak a Word againft my Lords
the Bifhops , but, if thefe Learned Gentlemen cannot fhew me any fiich, then they
have not laid that was true in this Petition, that it was Ib and fo declared in Parliament.
For let us confider what there is in this Cafe upon this Evidence, for that in 1662.
is only a Vote and an Opinion of the Houfe of Commons ; and I always underftoodj
and have been told fo by Ibme of the Gentlemen of the other fide, that fiach a Vote
fjgniries nothing : But befides, it leems to be a miftaken Addrefs ; for rrTey fay in it,
That the Declaration in 1662. which they Addrefs againft, was the fmt Declaration of
that fort, to fufpend Laws without Ad of Parliament ; and yet, in the iame breath,
they do take notice of the King's Declaration from Breda. But here is a mighty Ar-
gument ufed from the King's Speech, That becaufe he wifhed he had fach a Power,
this muft be declared in Parliament that he had no fuch Power : Is the Speech of the
Prince a Declaration in Parliament ? All the Speeches that were made upon the opening
of the Parliament, will you fay, they are Declarations in Parliamer.;. ? Then the Chan-
cellor, or the Keeper's Speech, or the Lord Privy Seals, muft be a Declaration in Par-
liament. Whoever fpeaks the Senle of the King, if he does not fpeak that which is
Law and Right, is queltionable for it, and feveral have been Impeached for Ib doing ;
for they look not upon it as the King's Speech, except it be according to Law : No-
thing can turn upon the Prince but what is Legal ; if it be otherwile, it turns upon
him that fpeaks it. I never did hear that a Speech made by the Chancellor ( and I
will appeal to all the Lords that hear me in it ) was a. Declaration in Parliament.
Then, my Lord, we come to the bufinefsin 1672. which with that in 1662. and that
in Breda, fhews, That this of the King's is not fuch a Novelty, but has been done
often before. In 1672. the King was in Diftrefs for Money, being intangled in a Dutch
War, and wanted Supply ; He Capitulates with his Commons, you have heard it read,
and, upon the Commons Addrefs, he aflerts it to be his Right, and makes his Com-
plaint to the Lords how the Commons had ufed him ; for when he gives them a fair
Anlwer, they Reply, and there are Conferences with the Lords about it ; but at length
it all ends in a Speech by the King, who comes and tells them of his prefent Neceffitie?,
and ib he was minded to remit a little at the Inftigation of the Commons, and he has
a good Lump of Money for it. Would this amount to a Declaration in Parliament ?
Can my Lords the Biftiops fancy or imagine that this is to be impofed upon the King,
or upon the Court, for a Declaration in Parliament !
Then, laft of all, for that in i68y. in this King's
* Hen Mr. Juft. Powcl fpeaki»g it time, What is it ? The Commons make an Addrefs to
the Lord chief Jufltce, the King? and Complain to his Majefty of fome of his
MrJ.Ptv. My Lo.rd.thisiswide, Officers in his Army, * that might pretend to have a
Mr.soiiicitor would impofe upon Dilpenfation, fomething of that Nature, contrary to
"he5 KJntr tr: s^ris j-S M; ^ ^ » *><* ^ ^-^ ^
Aufwer the objedions made by the their Application to the King, and the King Anfwers
Defendants Councei. them, and that is all : But fmce it is fpoken of in the
L.Cb. Juft Brqther, impofe up- Court I would take notice, That it is very well known
£3L^ffi!3*S: <* *eafeofG*M*and HA, the Judgment of this
you ; for my part, I do not believe ^"^ was againft the Opinion of that Addrefs.
one woid he (ays. . But what fort of Evidence is all this? Would you
allow all the Addrcfles of the Houfe of Commons to
be
be Evidence ? Give me leave to fay it, my Lord, If you fuffer thefe Votes, thefe Co-
pies of Imperfed Bills, thefe Addrefles, and Applications of one or both Houfes td
the King, to be Evidence and Declarations in Parliament, then what
will become of the * Bill of Exclulion ? Shall any Body mention that * Here there
Bill of Exclufion to be a Declaration in Parliament? Iffb, then there »as a great Hif-
is Declaration againft Declaration, the Declaration of the Commons fm&
againft the Declaration of the Lords. I know not what Judgment my
Lords the Bifhops may be of now, concerning thofe things of Votes and Addrefies being
Declarations in Parliament, but 1 am fure they have fpoken againft it heretofore j
nay, I am fure, fome of them have Preached againft it.
And if my Lords the Bifhops have (aid, Thefe are Declarations in Parliament, and
they are not Declarations in Parliament ; and if they accufe the King of having done
an Illegal thing, becaufe he has done that which has been declared in Parliament to be
Illegal, when it was never ft> declared, then the Confequence is very plain, That they
are Miftaken fbmetimes ; and I fuppofe by this time they believe it.
I dare fay, it will not be denied me, That the King may, by his Prerogative Royal,
ifllie forth his Proclamation ; it is as eiiential a Prerogative, as it is to give his aflent
to an Ad of Parliament to make it a Law. And it is another Principle, which I think
cannot be denied, That the King may make Conftitutions and Orders in Matters Ec-
clefiaftical ; and that theft he may make out of Parliament, and without the Parliament.
If the King may do fo, and thefe are his Prerogatives, then fuppofe the King does iffue
forth his Royal Proclamation ( and fuch in effect is this Declaration under the Great
Seal) in a Matter Ecclefiaftical, by Virtue of his Prerogative Royal, and this Decla-
ration is read in the Council, and publifhed to the World, and then the Bifliop? come
and tell the King, Sir, you have iffiied out an Illegal Declaration , being contrary to
what has been declared in Parliament; when there is no Declaration in Parliament:
Is not this a Diminifhing the King's Power and Prerogative in ifiuing forth his Declara-
tion ? And making Conftitutions in Matters Ecclefiaftical 1 Is not this a queftioning of his
Prerogative ? Do not my Lords the Bifhops in this Cafe raife a queftion between the
King and the People ? Do not they ( as much as in them lyes ) ftiwip the People to
Sedition ? For who fhall be Judg between the King and the Bifhops ? ( Says the King )
I have fuch a Power and Prerogative to iilue foith my Royal Proclamation and to
make Orders and Conftitutions in Matters Ecclefiaftical, and that without the Parlia-
ment, and out of Parliament : Say my Lords the Bifhops, Yon have done fo, but you
have no Warrant for it. Says the King, Every Prince has dc;ie it, and I have done
no more than what is my Prerogative to do : But this, fay the Bifhops, is againlt Law.
How fhall this be tryed ? Should not the Bifhops have had the Patience to have waited
till a Parliament came ? When the King himfelf tells them, he would have a Parlia-
ment in November at furtheft.
L. Ch. Juft. Pray, Mr. Solicitor, come clofe to the bufinefs, for it is very late.
Mr. Sol.Gen. My Lord, I beg your Patience ; you have had a great deal of Patience
with them, pray fpare me a little. I am faying, when the King himfelf tells them,
that he would have a Parliament in Novembtr at furcheft, yet they have no Patience to
ftay till November,' but make this Application to him. Is not this raifing a Qpeftion
upon the King's Prerogative in ilfuing forth Declarations ? and upon the King's Power
and Right in Matters Ecclefiaftical > And when I have faid this, that my Lords the Bi-
(hops have fo done ; If they have raifed a Qyeftion upon the Right of the King, and
the Power of the King in Matters Ecclefiaftical, then they have ftirred tip Sedition.
That they have fo done is pretty plain ; and for the Confequence of it, I fhall appeal
to the Cafe in the 2 Cro. 2. Jac. i. That is a plain diredt Authority for me.
Mr. Juft. Powel. Nay, Mr. Solicitor, we all very well know, to deny the King's
Authority in Temporals and Spirituals, as by Aft of Parliament, isHighTreafon.
Mr. Sol. Gen. I carry it not (6 far, Sir ; we have a Gracious Prince, and my Lords
the Bifhops find it fo by this Profecution : But what fays that Cafe ? It is Printed in
j Books, in Noy 100. in Moor 379. and in Mr. Juft. Cro. 371. fays that Cafe, The
King may make Orders and Conftitutions in Matters Ecclefiaftical.
Mr. Juft. Vowel. But how will you apply that Cafe to this in hand, Mr. Sollicitor?
Mr. Sol. Gen. I will apply it by and by, Sir. I would firft fhew what it is ; there
is a Convention of the greateft Men in the Kingdom.
Mr. Juft. Powel. Indeed, Mr. Sollicitor, you fhoot at Rovers.
Mr. Sal. Gen. There is the Lord Privy Seal , the Archbifhop of Canterbury , and
» great many others ; it is the greateft Alterably we meet with in our Book?, and all
of
of them are of this Opinion, That the King may make Orders and Conftitutions In
Matters Ecclefiaftical.
My Lord, there is another Authority, and that is, from the Statute i Eliz. which
eroded the High Commiflion Court, and that Statute was not Introdudory ot a New
Law, but Declaratory of the Old Law; The King by his Proclamation declares his
Senfe to do fuch and fuqh a thing ; the Court, and all Perfons there, give their Judg-
ment and Opinion upon that Statute, That they looked upon it as the groileft thing,
and the fouleft atfront to the Prince, for any Man to bring into Queftion that Power
of the King in Matters Ecclefiaftical ; 'tis faid to be a very High Crime. Why then,
my Lord, what is done in this Cafe >
Mr.Juft.Totutl. Mr. Sollicitor, Pray, when you are applying, apply that other
part of the Cafe too, which fays, that it was a heinous Orfence , to raife a Rumor
that the King did intend to grant a general Toleration ; and is there any Law fince
that has changed it, Mr. Soliicitor ?
Mr. Sol. Gen. In die main, Judgment goes another way ; as for that parr, it was
perfonal to the Prince that then was, of whom they had Scandaloufly reported, that
he intended to do fiich a thing ; they look'd upon it as a Scandal to King Jamei^
that it was a fbwing Sedition, and ftirring up People againft the Government, and that
will come up to our Cafe ; for as feme Men do it on the right fide, others do it on the
left ; and whoever he be that endeavours to bring a difiike of th,e King in the People,
that is moving Sedition againft the Prince, but that is perfonal to the Prince himlelf,
and does not go to his Succeflbrs.
Now, my Lord , I come to that which is very plain from the Cafe of De Libtllu
Famofts ; If any Perfon, in any Paper, have Slandered the Government, you are not
to Examine who is in the Right, and who is in the Wrong, whether what they faid to
be done by the Government be Legal or no -, but whether the party have done fuch
an Ad. If the King have a Power ( for ftill I keep to that) to Iffue forth Proclama-
tions to his Subjects, and to make Orders and Conftitutions in matters Ecclefiafucal,
if he do Ifiue forth his Proclamation, and make an Order upon the matters within his
Power and Prerogative ; and if any one would come and bring that Power in Queftion,
I fay, that is Sedition, and you are not to Examine the Legality, or Illegality of the
Order or Proclamation ; and, that I think is very plain upon that Cafe, in the Fifth
Report, for it fays, If a Perfon does a thing that is Libellous, you (hall not Examine
the Fad, but the Confequence ; whether it tended to ftir up Sedition againft the Pub-
lick, or to ftir up Strife between Man and Man ; in the Cafe of private Perfons, as if
a Man mould fay of a Judge, He has taken a Bribe, and I will prove it ; this is not
to be font in a Letter, but they muft take a regular way to Profecute it according
to Law.
If it be fo in the Cafe of an Inferior Magiftrate, what muft it be in the Cafe of a
King, to come to the Kings Face, and tell him ( as they do here ) that he has Aded
Illegally , doth certainly , fufficiently prove the matter to be Libellous. What do
they fay to King, they fay, and admit, that they have arvaverfnefs for the Declara-
tion, and they tell him from whence that averfnefs doth proceed ; and yet they in-
finuatc, that they had an inclination to Gratify the King, and Embrace the Diirenters,
that were as averfe to them, as could be, with due tendernefs, when it mould be
fettled by Parliament and Convocation, Pray, what hath their Convocation to do in
this matter.
L. Cb.Jufi. Mr. Sollicitor General, I will not interrupt you ; but, pray, come to the
Bufinefs .before us: Shew us that this is in diminution of the Kings Prerogative, or that
the King ever had fuch a Prerogative.
Mr. Sol. Gen. I will, my Lord ; I am obferving what it is they fay in this Petition
They tell the King it is inconfiltent with their Honor, Prudence, and Confcience, to do
what he would have them to do ; and if thefe things be not refledivc upon the King
and Government, I know not what is; this is not in a way of Judicature, poffibly it
might have been allowable to Petition. The King to put it ir,L j ~ courfe.of Juftice,
whereby it may be Tryed ; bur, alas, there is no fuch thing in this matter.
It is not their defire to put it into any Method for Tryal , and fo it comes in the Cafe
De Ltbellis Famojij ; for by this way, they make themfelves Judges, whieh no Man by Law
is permitted to do. My Lords, the Bifhops have gone out of the way, and all that
they have ottered does not come home to juftify them ; and therefore I take it under
Favour, that we have made it a good Cafe for the King, we have proved what they have
done, and whether this be Warrantable or not, is the Qyeftion, Gentlemen , that you
are
are to try. The whole Cafe appears upon Record ; the Declaration, and Petition are
fet foith, and the Order of the King and Council. When the.VerdicT: is brought in,»
they may move any thing what they pleafe in arreft of Judgment : They have had
a great deal of Latitude, and taken a great deal of Liberty; But truly, I apprehend,
not fo very pertinently. But, I hope, we have made a good Cafe of it for the King;
and that you, Gentlemen, will give us a Verdift.
Mr. Jufl. Hollo-way. Mr. Sollicitpr, there is one thing I-would feign be fatisfied in ;
you fay the Bifhops have no Power to Petition the King.
Mr. Soil. Gen. Not out of Parliament, Sir.
Mr.Jtifl.Hollowaj. Pray give me leave, Sir; Then the King having made fuch a
Declaration of a General Toleration and Liberty ef Confcience, and afterwards he
comes and requires the Bifhops to difperfe this Declaration ; this they fay, out of a ten-
dernefs of Confcience, they cannot do, becaufe they apprehend it contrary to Law,
and contrary to their Function : What can they do, if they may not Petition ?
Mr. Soil. Gm. I'll tell you what they fhould have done, Sir. If they were com-
manded to do any thing againft their Confciences, they fhould have acquiefced- till the
Meeting of the Parliament.
[ \At which fame People in the Court hijjed. ~\
Mr. Attorn. Gen. This is very fine, indeed ; I hope the Court, and the Jury, will
take norice of this Carriage.
Mr. SaU. Gen. My Lord, it is one thing for a Man to Submit to his Prince, if the
King lay a Command upon him that he cannot Obey, and another thing to Affront '
him. If the King will impofe upon a Man what he cannot do, he muft acquiefce ; But
(hall Income and fly in die Face of his Prttice ? Shall he fay it is Illegal ? And that the
Princewfts againft Prudence, Honor, or Confcience ? And throw Dirt in the King's
Face ? Sure that is not to be permitted ; that Is Libelling with a Witnefs.
L.Cb. juft. Truly, Mr. Solicitor, I am of Opinion that the Bifhops might Petition
the King, but this is not the right way of bringing it ; I am not of that Mind, that
they cannot Petition the King out of Parliament, but if they may Petition , yet they
ought to have done it after another Manner : For if they may in this Reflexive way
Petition the King, I am fure, it will make the Government very precarious.
Mr. Jufl- Towel. Mr. Solicitor, it would have been too late to ftay for a Parliament,
for it was to have been Diftributed by fuch a time.
Mr. Soil. Gen. They might have lain under it, and fubmitted.
Mr. Jujt.7oTvel. No , they would have run into Contempt of the King's Command,
without Petitioning the King not to hifift upon it ; and if they had Petitioned, and not
have fhewn the Reafon why they co'uld not Obey, it would have been looked upon
as a piece of Sullennefs, and that they would have been blamed for, as much on the
other fide.
Mr. Serj. Ealdock. After fb long a Debate I (hall not trouble you long, moft things
that are to be faid have been faid, but I fhall only fay this in fhort ; I cannot deny*
nor {hall'not, but that the Subject has a Right to Petition, but I fhall affirm it alfo, he
has a Duty to Obey ; and, that in this Cafe, the Power of the King to Difpenle with
Penal Laws in Matters Ecclefiaftical is not a thing that is now in Queftion, nor need
we here have had thefe long Debates on both fides : It may be perceived plainly, by
the Proofs that have been read, that the Kings and Princes have thought themfelves that
they had fuch a Power, though, it may be, the Parliament thought they had not ; and
therefore the Declarations of the one,. or the other, I fhall not meddle with in this Cafe.
That Power it felf which the King has, as King of this Realm, in Matters rather Eccle-
fiaftical and Criminal than Matters of Property, may fomewhat appear by what has
been read before your Lordfhip ; but all this will be nothing in our Cafe, neither has
his Majefty now depended fo much upon this thing ; the Declaration has been read to
you ; and what's there faid ? The King there fays, That for thofe Rcafons he was
ready to Sufpend thofe Laws ; And be they Sufpended ? Yet, my Lord, with this too,
That he refers it to, and hopes to make it fecure by, a Parliament : So that there be-
ing this, it has not gone, I think, very far ; and, it not having been touch'd here, it is
not a point of Duty in my Lords the Bifhops, as Bifhops, that's here inquired into ;
Whether they fhould have medled with this, or no, in this manner, is the Queltion.
That the King is Supreme over all of us, and has a particular Supremacy over them,
as Supreme Ordinary, and Governor, and Moderator of the Church, is very plain ;
and, my Lord, it is as plain that in fuch things as concern the Cluirch, he has a
particular Power to Command* them ; this is not unknown, but very frequent and
M m common
C '34]
common in Matters Ecclefiaftical, and Matters of State ; It is not here a Queflion
ijow, whether thefe Declarations which they were Commanded to take Care of get-
ting read, were Legal or not Legal ; what Prudence there was, what Honour there
was, what Conference there was, lor their not reading it, is not the Qucftion neither :
But the point was, thQ King as Supreme Ordinary of his Kingdom, to whom the Bi-
fhops are Subject, does in Council Order ; And what is it he Orders? Their (ending
out and distributing his Declaration ; they were concerned in no more than that, and
it had been a very petty thing, a fmall thing, to fend out the King's Declaration to
be read by the Clergy : All the Clergy were Ordered tn.ix.nl ir, but my Lords the
Bifliops were only Commanded to diftribute it ; this he might do by Virtue" of his
Power Ecclefiaftical. And if this be ijot an Evil in it felf, and if it be not againft the
Word of God, certainly Obedience was due from my Lords the Bifhops ; active Obe-
dience was due from them to do fo much as this ; it was no Confent of theirs, it was
no Approbation of theirs, of what they read, that was Required. So that if they had
read ir, or another had read it, by the King's Order, especially if that Order be Le-
gal, they are bound to do it by Virtue of their Obedience, and not to Examine more.
And, my Lord, in this Petition, here-they come to relieve, not only rhemfelves that
were prefent, ( for I fpeak to the preamble, as others before me have fpoke to rlie
Conclufion ) but they do involve the reft of the Bifliops that were abfcnt ; for it is in
behalf of Themfelves, and their Brethren, and all'the Clergy uf that Province. Now
that all thelc ftiould joyn in the Petition, is a thing very uncertain.; how cjoes it con-
"ftrue here, whether they were altogether, aud Confentc-d to it, or how all their Minds
could be fo fully known, that they would be all involved in the Difbbedience ^o this
Order of the King. Then, my Lord, Wha* is the thing they are greatly ava "^
There are Two things required in the Order, The Bifliops required to DiftribAe the
Declaration tb the Inferior Clergy ; and the Inferior Clergy are required to Read jr.
Then their avcrfenefs muft be to Diftribute it, and the others to Read it, and fb they
Will be involved ; none of whom did ever appear to have Joyneci in it. And then tliey
give Reafbns for their averfenefs ; and it is true, Reafbns might have been given, and
good Reafons fhould be given, why they would not do this in Duty to His Ma
more gentle Reafons, and other kind of Reafons, than tho!e that they have given.
L.Cb.Jnjt. Pray, Brother, will you come to the Matter before us.
Mr. Serf. Baldock. I have almoft done, my Lord.
Mr. J»ft. Powel. The Information is not for Difobedicnce, Brother, but for a Libel.
Mr. Serf. Baldock.. No, Sir, it is not for Difbbedience, but it is for giving Reafons for
the Difobedience in a Libellous Petition ; and I am going on to that. The Declaration
is faid in the Petition to be Illegal, which is a Chafge upon the King, That Le has done
an Iljegal Act. They fay, they cannot in Honor, Confdtrce, orFiudence do it; which
is a Reflection upon the Prudence, Juftice, and Honour of, the King in Commanding
them to do fuch a thing: And this appearing to have been delivered to the Kirg by my
Lords the Bifliops ; Perfons, to whom certainly we all « ^ference, as our Spi-
ritual Matters, to believe what things they fay, as moll likely to be rrut, ai*!, there-
fore it having an Univerfal Influence upon all the People, I mall leave it here to your
•Lordfhip, and the Jury, whether they ought not to Ani'wcr for ir.
Mr. Recorder. Will your Lordfliip pleale to fpare me one Word ?
/,. Ch.Juft. I hope, we (hall have done by and by.
Mr. Recorder. If your Lordfliip don't think fit, I c*an fi; down.«
L. Cb. Juft. No, no, go on, Sir Earth. Shore, you'll fay 1 have fpoiled a good Speech.
Mr. Recorder. I have no good one to make, my Lord, 1 have but a very few Words
tp fay.
L. Cb. Juft. Well, go on Sir.
, Mr. Recorder. That which I would urge, my Lord, is onlv this ; I think, my Lord, we
have Proved one Information, and that they have made no Anfwer to rt ; for the Anfwer
they have made, is but Argumentative, and taken either from the Perfons of the Defen-
dants, as Peers, or .from the Form of its being a Petition : As Peers, it is faid, they
have a Right to Petition to, and Advife the King ; but that is no Excufe at all, for if it
contains Matter Reproachful, or -Scandalous, it is a Libel in Them, as well as in any
other Subject ; and they have no more Right to Libel the King than His Ma j, ; ties other
Subjects have; nor will the Priviledge of their Peerage exempt them from being Punifhed.
And for the Form of this Paper, as being a Petition, there is no more Excufe in that nei-
ther. For every Man has as much Right to Publifli a Book, or Pamphlet, ns they had
to Prefent their Petition. And as k would be Punifhable in that Man to Write a Scan-
dalous
dalous Book, fo it would be Punifhable in them to make a Scandalous, and a Libellous
Petition. And the Author of Julian the Af oft ate, becaufe he was a Clergy Man, and
a Learned Man too, had as much Right to Publifh his Book, as my Lords the Bifhops
had to Deliver this Libel* to the King. And if the City of London were fo feverely Pu-
nifhed, as to lofe their Charter, for Petitioning for the Sitting of a Parliament, in
which there were Reflecting Words, but more Soft.-
Mr. Juft. Hollo-way. Pray, good Mr. Recorder, don't compair the Writing of a
Book to the Making of a Petition ; for it's the Birth-right of the Subject to Petition.
Mr. Recorder. My Lord, it was as Lawful for the City of London to Petition for the
Sitting of a Parliament, as it was for my Lords the Bifhops to give Reafbns for their
Difobedience to the King's Command : And if the Matter of the City of London: Peti-
tion was reckoned to be Libellous, in faying that what the King had done in Diflblving
the Parliament, was an Obftruction of Juftice, what other Conftruction can be made
of my Lords the Bifhops faying that the King's Declaration is Illegal? AndiftheMat-
rer of this Petition be of the fame Nature with that of the City of London, your Lord-
ihip can make no other Judgment of it ; but that it ought to have the fame Condem-
nation.
Mr. Juft. Potvel. Mr. Recorder, yon will as fbon bring the Two Poles together, as
xmake this Petition to agree with Jobnfon's Book ; they are no more alike, than the
moft different things you can name.
Mr. Serj. Trinder. My Lord, I have but one Word.
L. Ch. Juft. How unreafonable is this now, that we muft have fo many Speeches
at this time of Day ? But we muft hear ir ; go da Brother.
Mr. Ser^. Tr'nuLr. My Lord, 'if your Lordfhip pleafes, That, which they f-em moft
to infift upon on th.? other fide,. and which lias not been'tnuch fpoken to (5n our fide.
. is, That this Power which His Majefty has Exerted, in fitting forth His Declaration, was
Illegal, and their Arguments were Hypothetical ; If it were Illegal, they 'had not Of-
fended :, and they otiered at fome Arguments to prove it Illegal : But as to that,, my
Lord, \ve need not go much further, than a Cafe that is very well known here, which I
crave leave to mention, only becaufe the Jiiry, perhaps, have not 'heard of it; and
that was the Cafe of Sir Edwa->d Hales, whert after a long Debate, it was Refolved,
That the King had a Power to Difpenfe with Penal Laws.
But, my Lord, if I fhould go higher into our Books of 'Law, that which they feem
to make fo Irrange of, might eafily be made appear, to have been a frequent and con-
ftant practice.
L. Cb. Juft. That is quite out of the Cafe, Brother.
Mr. Serj. Trinder. I beg your Lorfhips Favour, for a Wnrd or two ; ff your Lord-
ihip pleale to Confider the Power the King has, as Supreme Ordinary , we fay, he
has a Power to Difpenfe with thefe Statutes, as he is King, and to' 'give Ea(e to
his Subjtdl?, as Supreme Ordinary of tiie whole Kingdom, and as having Supreme
Ecclefiaftical Authority throughout the Kingdom. There might be abundance of
Cafes cited for this, if there were need ; the Statute r>f frimo Eliz,. clou briefs is in
Force at this time, 'and a great many of the Statutes that have been maJe fince
that time, have exprefs Savings of the King's Supremacy ; fo that rhs King's
Power is Unqueftionable : And if they have come and Queftioned this Power m
this manner, by referring themfelves to die Declarations in Parliament, they have
done tliat, which of late Days lias been always look'd upon as an 111 thing, as if
the King's Authority was under the Sutfrages of a Parliament. Bet when t:;ty come
to make out their Parliament Declarations, there was never a one, unit's it be tirit ing|
Richard the Seconds time, that can properly be called a Parliament Declaration ; fo
that that of the fevenil Parliaments is a Matter perfectly miltaken ; and if they have
miftaken ir, it is in the Nature of falfe New?, which is a Crime, for which the Law
will Punifh them. More things might be added, but I confider your Lordfhip has had
a great deal 'of Patience already, and much time has been fpcnr, and, therefore I
fliall conclude, begging your Lordfhips Pardon for what \ h£ve (aid.
L. Ch. Juft. I do allure you, if it had not been a Cafe of great Concern, I would
not have heard you To long : It is a Cafe of very great Concern to the 'King, and the
Government, on the one fide, and to my Lords the Btfhops on the other ; and I have
taken all the Care I can to obfervc what has been faid on both fides . 'Tis not to be
expj'ted that 1 fhould repeat all the Speeches, or the particular Facts, but I will put
the Jury in mind of the molt Material things, as well as my Memory will give me
leave ; but I have been interrupted by fo many Long, and Learned Speeches, and by
the
the length of the Evidence which has been brought in, in a very broken, unrhethodi-
oil way, that I fhall not be able to do fo well as 1 would.
Gentlemen, thus itands the Cafe ; It is an Information againft my Lords the Bifhop?,
his Grace my Lord of Canterbury, and the other Six Noble Lords ; and it is for Prefer-
ring, Compofingc Making, and Publifhing, and Caufmg to be Publiftied, a Seditions Li-
bel ; the way that the Information goes is fpecial, and it fets forth, That the King
was Gracioufly pleated, by his Royal Power and Prerogative, to fet forth a Declara-
tion of Indulgence for Liberty of Confcience, in the Third Year of his Reign; and af-
terwards upon the zj.ofdprtl, in the Fourth Year, he comes and makes another De-
claration ; and afterwards, in May, orders in Council that this Declaration fhould be
Publifhed by my Lords the Bifliops in their feveral Diocefles ; and after this was done,
my Lords the Bifliops come and prefent a Petition to the King, in which were con-
tained the Words which you have (een.
Now, Gentlemen, the Proofs that have been upon this, you'll fee what they are ;
the two Declarations are proved by the Clerks of the Council, and they are brought
here under the Great Seal ; a Qtieftton did arife, whether the Prints were the fame
with the Original Declarations, and that is proved by Hills, or his Man, that they
were Examined, and are the fame ; then the Order of Council wai produced by
Sir John Nicholas, and has hkewife been read to you ; then they come to prove the
Faft againft the Bifhops, and firft they fall to proving their Hands ; they begun indeed
a great way oif, and did nor come fb clofe to it as they afterwards did ; for fome of
their Hands they could hardly prove, but. my Lord Archbifhop's Hand was only pro-
ved, and fome others, but there might have been fome Queftion about that Proof;
but afterwards it came to be proved, that my Lords 'the Bifhops owned their Hands,
which, if tHfey had produced at firit, would have made the Caufe fomething fhorter
than it was.
The next Qiieftion that did arife, was about the Publifhing of ir, whether my Lords
the Bifhops had Publifhed it, and it was infilled upon, That no body could prove the
Delivery of it to the King ; it was proved, the King gave it to the Council, and my
Lords the Bifhops were called in, and there, they acknowledged their Hands ; but no
body could prove how it came to the King's Hands. Upon which, we were all of
Opinion, That it was rot fiich a Publtfhing, as was within the Information ; and I was
going to have diredcd you to find my Lords the Bifhops Not Guilty : But it hapned,
that being Interrupted in my Directions, by an Honeft, Worthy, Learned Gentle-
man, the Kings Council took the Advantage, and informing the Court that they had
further Evidence for the King, we ftaid till my Lord Prefident came, who told us
how the Bifhops came to him to his Office at White-bail, and after they had told him
their Defign, That they had a mind to Petition the King , they asked him the Method
they were to take for it, and defired him to help them to the Speech of the King : And
he tells them he will acquaint the King with their Defire, which he does ; and the King
giving leave, he comes down and tells the Bifhops, that they might go and fpeak
with the King when they would ; and ( fays he ) I have given Direftion that the Door
ftiall be opened for you, as fbon as you come. With that the Two Bifliops went away,
and faid, they would go and fetch their other Brethren, and fb they did bring the
other Four, but my Lord Archbifhop was not there ; and immediately when they
came back, they went up into the Chamber, and there a Petition was Delivered to
the King. He cannot fpeak to that particular Petition, becaufe Jie did not Read ir,
and that is all that he knew of the Matter ; only it was all done the fame Day, and
~that was before my Lords the Bifhops appeared at the Council.
Gentlemen, after this was proved, then the Defendants came to their Part ; and
thefe Gentlemen that were of Councel for my Lords let thcmfelves into thi-ir Defence,
by notable Learned Speeches, by telling you that my Lords the Bifhops are Guardians
to the Church, and great Peers of the Realm, and were bound in Confcience to take
care of tbe Church. They have Read you a Claufe of a Statute, made in Queen
Eltz,. time, by which they fay, my Lords the Bifhops were under a Curfc, if they did
rot take care of that Law. Then they (hew you fome Records ; One in Richard the
Seconds time, which they could make little of, by reafbn their \\ itnefs could not Read
it ; but it was in fhort, a Liberty given to the King, to Difpenfe with the Statute of
Provilbrs. Then they ftiew you fome Journals of Parliament ; Firft in the Year 1662.
where the King had Granted an Indulgence ; and the Hotife of Commons Declared it
was not fit to be done, unlefs it were by Adi of Parliament. And they Read the King's
Speech, wherein he fays, he wifh'd he had fuch a Power, and (6 likewife tlnit in 1672.
which
tv'hich is all nothing, but Addrefles and Votes, or Orders of the Houfe, or Difcourfes
either the King's Speech, or the Subject* Addrefles; but thefe are not Declarations in
Parliament that is infifted upon by the Councel for the King, That what is a Decla-
ration in Parliament is a Law, and that muft be by the King, Lords, and Commons •
the other is but common Difcourfe, but a Vote of the Houfe, or a Signification of their
Opinion, and cannot be faid to be a Declaration in Parliament : Then they come to
that in i68f . where the Commons take notice of fomething about the Souldiers in the
Army that had not taken the Tell, and make an Addrefs to the King about it ; but in
all thefe things ( as fa'r as I can obferve ) nothing can be gathered out of them, one
way or other, it is all nothing buc Difcourfes. Sometimes this Difpenfing Power hat
been allowed, as in Ric. z. time ; and fometimes it has been denied, and the King did
once wave it; Mr. Sollicitor tells you the Reafbn, There was a Lump of Money in
the Cafe : But I wonder indeed to hear it come from him.
Air. Soli. Gen. My Lord, I never gave my Vote for Money, I allure you.
L. Ch. Juft. But thofe Conceffions which the King fometimes makes for the Good
of the People, and fometimes for the Profit of the Prince himfelf ; ( but I would not
be thought to diftinguifh between the Profit of the Prince, and the Good of the People,
for they are both one ; and what is the Profit of the Prince is always for the Good of the
People;) but I fay, thofe Conceffions muft not be made Law, for that is referved in
the King's Breaft, to do what he pleafes in it at any time.
The truth of it is, the Difpenfing Power is out of the Cafe, it is only a Word ufed
in the Petition ; but truly I will not take topon me to give my Opinion in the Quefiion,
to determine that now, for it is not before me : The only Queftion before me is, and
fo it is before you, Gentlemen, it being a Queftion of Faft, Whether here be a certain
Proof of a Publication ? And then the next Queftion is a Queftion of Law indeed,
Whether if there be a Publication proved, it be a Libel ?
Gentlemen, upon the point of the Publication, I have fummed up all the Evidence
to you ; and if you believe, that the Petition which thefe Lords prefented to the King
was this Petition, truly, I think, that is a Publication fufficient; if you do not believe
it wus this Petition, then my Lords the Bilhops are not Guilty of what is laid to their
Chavge in this Information, and confequently there needs no Inquiry whether they are
Guiky of a Libel : But if you do believe, that this was the Petition they prefented to
the King, then we muft come to Inquire whether this be a Libel.
Now, Gentlemen, any thing that (hall difturb the Government, or make Mifchief
and a Stir among the People, is certainly within the Cafe ofLibelltt Famofa ; and I muft
in fhorr give you, my Opinion, I do take it to be a Libel. Now, this being a point of
Law, if my Brothers have any thing to fay to it, I fuppofe they will deliver their
Opinions-
Mr.fuji.Hollowaj. Look you, Gentlemen, it is not ufual for any ferfon to fay
any thing after the Chief Juftice has fummed up the Evidence, it is not according to
the Courfe of the Court ; but this is a Cafe of an Extraordinary Nature, and there
being appoint of Law in it, it is fit every body mould deliver their own Opinion : The
Queftion is, whether this Petition of my Lords the Bifhops be a Libel, or no ; Gentle-
men, the End and Intention of every Adion is to be Confidered, and likewife, in this
Cafe, we are to Confider the Nature of the Offence that thefe Noble Perfbns are Char-
ged with ; it is for delivering a Petition, which, according as they have made their
Defence, was with all the Humility and Decency that could be : So that if there was
ill Intent, and th^y were not ( as it k nor can be pretended they were ) Men of Evil
Lives, or the like, to deliver a Petition cannot be a Fault, it being the Right of every
Subjedl to Petition • If you are fatisfied there was an ill Intention of Sedition, or thag
like, you ought to find them Guilty ; but if there be nothing in the Cafe that you*
find, but only that tlxey did deliver a Petition to fave themfelves harmless, and to free
themfelves from blame, by flawing the Reafon of their Difobedience to the King's
Command, which they apprehended co be a Grievance to them, and which they Could
not in Conference give Obedience to ; I .cannot think it is a Libel : It is left to you.
Gentlemen, but that is my Opinion.
L. Cb. Juft. Look you, by the way, Brother, I did not ask you to fum up the
Evidence, (for that is not ufual ) but only to deliver your Opinion, whether it be a
Libel, or no.
Mr.Juft.Poivel. Truly, I cannot fee, for my part, any thing of Sedition-, or any other
Crime, fixed upon thefe Reverend Fathers, my Lords the Bifhops.
N-n For,
For, Gentlemen, to make it a Libel it muft "be Falfe, it muft Le Malicious, ard it
mult rer.d to Sedition ; as to the Falfhood, I lee nothing that is offered by the King's
On; . rhing as to the Malice : ItU'as preferred with all the Humility and
.ime the King's Subjects to a pproach their Prince with.
rlcinen, the Matter of it is befoi.-e you ; you .are to Confider of ir, and
it is worth your Consideration, they tell his Majefty , It is not out of averfnefs to pay
all due Obedience to the King, nor out of a want of tendernefs to their diflenting
Fellow Subjects , that made them not perform the Command impofed upon them;
but they fay, That becaufe they do conceive, that the thing that was Commanded them
was a^.iinft the Law of the Land, therefore they do defire his Majefty, that he would
be pleaftd to forbear to infift upon it, that they fhould perfoim that Command which
they take to be Illegal
Gtritlemeh, we muft Confider what they fay is Illegall in it ; they fay, they appre-
hend the Declaration is Illegal, becaufe it is founded upon a Difpenfing Power, which .
the King claims, to Difpenfe with the Laws concerning Ecclefialtical Affairs.
Gentlemen, I do not remember in any Cafe in all our Law, and I have taken fome
Pains upon this Occafion to look into it, that there is any fuch Power in the King, and
the Cafe muft turn upon that, in fhort ; If there be no fiich Difpenfing Power in the
King, then that can be no Libel which they prefented to the King, which fays, that
the Declaration, being founded upon fuch a pretended Power, is Illegal.
Now, Gentlemen, this is a Difpenfation with a Witnefs, it amounts to an Abroga-
tion and utter Repeal of all the Laws ; for I can fee no difference, nor know of none
in Law, between the King's Power to Difpenfe with Laws Ecclefiaftical, and his Power
to Difpenfe with any other Laws whatfoev<;r : If this be once allowed of, there will
need no Parliament, all the Legiflature will be in the King, which is a thing worth
Confidering, and I leave the Iflue to God and your Conferences.
Mr. Jujt. Mybone. The fingle Queftion rtiat falls to my (hare, is, to give my Senffe
of this Petition, whether it (hall be in Conftiruclion of Law a Libel in it felf, or a thing
of great Innocence ; I (hall endeavour to exprefs my felf in as plain Terms as I can,
and as much as I aan, by way of Propofitiori.
And, I think, in the firft place, That n o Man can take upon him to write ag'iinft
the adual Exercife of the Government, uiilefc he have leave from the Government,
but he makes a Libel, be what he writes true or falfe ; for if once we come to im-
peach the Government by way of Argument, 'tis the Argument that makes it th« Go-
vernment, or not the Government : So 'that I lay down that in the firft place, That
the Government ought not to be impeached by Argument, nor the ^ Exercife of the
Government fhaken by Argument ; becaufe I can manage a Propofition i/i it felf
doubtful, with a better Pen than another Man : This, fay I, is a Libel.
Then I lay down this for my next Pofition, That no private Man can take upon him
to write concerning the Government at all ; for what has any private Man TO do with
the Government, if his Intereft be not ftir red or fhaken ? It is the bufinefs 'Of the Go-
vernment to manage Matters relating to the Government ; it is the bufinefs of Sub-
jefts to mind only their own Properties and Intereft : If my Intereft is not fhaken,
what have I to do with Matters of Government ? They are not within my Sphere :
If the Government does come to (hake my particular Intereft, the Law « open for me,
and I may redrefs my felf by Law : And when I intrude my (elf into other Mens bu-
finefs, that does not concern my particular Inteielt, I am a LibeHer.
Thefe I have laid down" for plain Propofitions ; now then let us Confider further,
Whether if I will take upon me to contradict the Government, any Specious Pretence
that I fhall put upou it fhall drefs it up into another Form, and give it a better De-
Ifcmination ; and truly I think it will not, I think 'tis the worfe, hecaufe it comes in a
better Drefs ; for by that Rule, every Man that can put on a gwd Vizard, may be
as Mifchievous as he will to the Government at the bottom ; fo that whether it be in
the form of a Supplication, or an Addrefs, or a Petition, if it be what it ought not to
be, l«t us call it by its true Name, and give it its right Denomination, It is a Libel.
Then, Gentlemen, Confider what this Petition is; This is a Petition relating to
fomeihing that was done and ordered by the Governme nt. Whether the Reafons of
the Petition be true or falfe, 1 will not Examine that now, nor will I Examine the
Prerogative of the Crown, but only take notice th;tt this rotates to th<? Aft of the Go-
vernment: The. Government here has publifhed fuch a Declaration as this, that has
been read, relating to Matters of Government ; And fha.1!, or oughts, anybody to
come
come afld impeach that as Illegal, which the Government has done ? Truly, in my
Opinion, I do not think he mould, OT ought ; for by this Rule may every Adt of the
Government be (oaken, when there is not a. Parliament de Fafto fitting.
I do agree, That every Man may Petition the Government, or the Kjng, in a mat-
ter that relates to his own private Intereft ; but to meddle with a matter that relates
to the Government, I do not think my Lords the Bilhops had any Power to do more
than any others : When the Houfe of Lords and Commons are in Being, it is a proper
way of applying to the King, there is all the opennefs in the World, for thofe that are
Members of Parliament, to make what Addrefles they pleafe to the Government, for
the rectifying, altering, regulating, and making of what Law they pleafe ; but if every
private Man (hall come and interpofe his Advice, I think, there can never be an end
of Advifing the Government ; I think, there was as an inftance of this in King James's
Time, when by a Solemn Refolution it was declared to be High Mifdemeanour, and
next to Treafbn, to Petition the King to put the Penal Laws in Execution.
Mr. Juft. Towel. Brother, I think, you do Miftake a little.
Mr. juft.'AUybone. Brother, I dare" rely upon it, that I am Right ; it was fo declared,
by all the Judges.
Mr. SoU. Gen. The Puritans prefented a Petition to that purpofe, and in it they faidj
if it would not be granted, they would come with a Great Number.
Mr. Juft. Towel. Ay, there it is.
Mr. Juft. Alljbone. I tell you, Mr. Sollicker, the Refolution of the Judges is,» That
(uch a Petition is next Door to Treafbn, a very Great Mifdemeanour.
Mr. Juft. Towel They accompanying it with Threats of the Peoples being Dif-
contented.
Mr. Juft. AUjbane. As I remember, it is in the Second Part of the Folio 3 y, or 37^
where the Refolution of the Judges is, That to frame a Petition to the King , to
put the Penal Laws in Execution, is next Door to Treafbn ; for ( fay they ) no Man
ought to intermeddle with Matters of Government without leave of the Govern-
ment.
Mr. Serj. Pemberton. That was a Petition againft the Penal Laws.
Mr. Jujl.Attybone. Then I am quite Miftaken indeed, in cafe it be fb,
Mr. Serj. TrinJer. That is not Material at all, which it was.
Mr. PoUixfen. They there threatned, unlefs their Requeft were granted, feveral
Thoufands of the Iling's Subjects would be Difcomented.
Mr. Juft. Powtl. That is the Reafon of that Judgment, I affirm it.
Mr. Jttp. Allybmt. But then I'll tell you, Brother, again, what is laid in that £afe
that you hinted at, and put Mr. Sollicitor in mind of; For any Man to raife a Report
that the King will, or will not, permit a Toleration, if either of thefe be difagreeable
to the People, whether he may, or may nor, It is againft Law ; for we are not to
meafure things from any Truth they have in themfelves, but from that AfpecT; they have
upon the Government ; for there may be every Tittle of a Libel true, and yet it may
be a Libel (till : 60 that I put no great Strefs upon that Objection, That the Matter of
it is not Falfe ; and, for Sedition, it is that which every Libel carries in it felf; and as
every Trefpafs implies Vi & Armis, fo every Libel againft the Government carries in
it Sedition, and all the other Epithets that are in the Information ; This is my Opinion
as to the Law in General.
I will not Debate the Prerogatives of the King, nor the Priviledges of the Subject;
but as this Fad: is, I think, thefe Venerable Bilhops did meddle with that which did
not belong to them ; they took upon them, in a Petitionary way, to contradidl the
Aftual Exercife of the Government, which, I think, no private, particular Perfb^f
or (ingle Body, may do.
L. Ch. Juft. Gentlemen of the Jury, Have you a Mind to Drink before you go ?
Jury. Yes, my Lord, if you pleafe.
[ Wine was fent for, for the Jttry. ]
J»ry-man. My Lord, we humbly pray, that your Lordfhip would be pleafed to
let us have the Papers that have been given in Evidence.
L. Cb. Juft. What is that you would have, Sir ?
Mr.SoIl.Gen. He defircs this, my Lord, That you would be pleafed to dired that
the Jury may have the life of fuch Writings, and Statute Books, as may be Neceflary
for them to make ufe of.
L. Cb. Juft. The Statute Book they mail have.
Mr. SoU. Gen. But they can have no Papers, but what are under Seal,
Mr. Serj.
[ 140 ]
Mr. Serj. Levins They may have them, by Confent, and they may have a Copy of
the Information.
L.Ch.Juft. They (hall have a Copy of the Information, and tha Declarations
under Seal. 4
Mr.Pollixfen. If they have thofe, and the Libel, ( as they c^lit ) they will not
need a Copy of the Information. <
M. Anom. Gen. My Lord, we pray that your Lordfliip would be-, pJeaKed tO afcer-
tain what it is they (hall have.
L.Cb. Jujl. They (hall have a Copy of the Information, the Libel, and the Decla-
rations under, the Great Seal.
Mr.SoU.Gcn. But not the Votes of the Houfe of Commons, nor the Journals, fof
they are not Evidence.
L.Cb.Juft. No, I don't intend they (hall.
Sir Rob. Sawyer. My. Lord, we pmy'they may have the whole Petition.
Mr. Jujt. Hottoway. That is, with the Direction, and Praye$ you mean.
Mr. Attorn. Gen. Yes, with all our Hearts.
£ "Then the Court arofe, and the Jury wait together to Conflder of tint
Verdtft, and ftaytd together all Ntght, without fire or Candle. ]
Oft Saturday the }o/& Day 0/June, Anno Dorn. 168?. alout Ten of the
Ckck in fl-r Morning, the Archbijhop , and the reft of the Bijhops, came
«£4in into the Court , and immediately after the Jury were bought to the
Bur.
Sir $».v.Aji-rj. Cryer, Take the Appearance of the Jury. Sir Roger Langley.
Sir Rag. Langiey. Here.
' Cryer. Vous avez, &c. [And fo aft the rtft ware caEeJ, and anfwereJ. }
Then Proclamation for Silence was made.
Sir.Sant.Ajhy. Gentlemen, are you agreed on your Verdift?
Jury. Yes.
SirSam.AJtrjr. Who (hall fay for you?
Jury. Foreman.
SirSant.AJhy. Do you find the Defendants, or any of them, Guilty of the Mil-
demeanour whereof they are Impeached, or not Guilty ?
' Foreman. NOT GUILTT.
Sir Sam. Aftry. Then hearken to your Verdid, as the Court bath Recorded it— —
You fay, the Defendants, and every of them, are NOT GUILTT of the Mifle-
meanour whereof they are Impeached ; and fo you fay all ?
Jury. Yes.
£ At which there were frveral great Shouts in the Court, tmd throughout the H*U. ~\
•
Mr. Solicitor General, taking Notice of fame Pe'rfotis in Court that Shouted, moved
very earnestly that they might le committed-, whereupon a Gentleman ofGnys
Inn was laid hold ony but was foon after Difchargea. And after the S footing
. was over, the Lord Chief Juftice reproving the Gentleman, faidt
L. Ch. Juft. Sir, I am as glad as you can be, that my Lords the Eifhops are ac<pit-
«; but your Manner of rejoycing here in Court is Indecent, you migbc rejcycc in
r Chamber, or elfewhere, and not here.
[ Then fpeaking to Mr Atterney, he faidt ]]
Have you any thing more to fay to my Lords the Biftiops, Mr. Attorney ?
Mr.Attorn.Gen. No, my Lord.
£ Then the Court arofe, and the Biflxps went ~
FINIS.
ADVERTISEMENT.
There will be fliortly PublUhed Poems on feveral Occafions. By Charles
Cotton^ Efq; Printed for T. Ba/ct, W. Henfman, and 7. Fox.
University of Toronto
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