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Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
england_n	lord_n	majesty_n	seal_n	3,128	5	8.9661	4	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A61601	The proceedings and tryal in the case of the most Reverend Father in God, William, Lord Archbishop of Canterbury and the Right Reverend Fathers in God, William, Lord Bishop of St. Asaph, Francis, Lord Bishop of Ely, John, Lord Bishop of Chichester, Thomas, Lord Bishop of Bath and Wells, Thomas, Lord Bishop of Peterborough, and Jonathan, Lord Bishop of Bristol, in the Court of Kings-Bench at Westminster in Trinity-term in the fourth year of the reign of King James the Second, Annoque Dom. 1688.	Sancroft, William, 1617-1693.; Lloyd, William, 1627-1717.; Turner, Francis, 1638?-1700.; Lake, John, 1624-1689.; Ken, Thomas, 1637-1711.; White, Thomas, 1628-1698.; Trelawny, Jonathan, Sir, 1650-1721.; England and Wales. Court of King's Bench.	1689 (1689)	Wing S564; ESTC R7827	217,926	148

say it shall be this day fortnight and let there be a Jury according to the usual course Sir Rob. Sawyer We pray it may be in the presence of the Attorneys or Sollicitors on both sides L. C. I. What is the usual co●…se Sir Samuel Astry Do you use to return twenty four or forty eight and then strike out twelve a piece which I perceive they desire for the Defendants Sir Sam. Astry My Lord the course is both ways and then it may be as your Lordship and the Court will please to order it L. C. I. Then take forty eight that is the fairest Mr. Att. Gen. We agree to it we desire nothing but a fair Jury Sir Rob. Sawyer Nor we neither try it when you will. L. C. I. Take a Recognizance of his Grace my Lord of Canterbury in 200 l. and the rest of my Lords in 100 l. a piece Mr. Att. Gen. What your Lordship pleases for that we submit to it Clerk. My Lord of Canterbury your Grace acknowledges to owe unto our Soveraign Lord the King the sum of 200 l. upon condition that your Grace shall appear in this Court on this day fortnight and so from day to day till you shall be discharged 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 Bishop of St. Asaph you acknowledge to owe unto our Soveraign Lord the King the sum of 100 l. upon condition that your Lordship shall appear in this Court on this day fortnight and so from day to day until you shall be discharged by the Court and not to depart without leave of the Court. Is your Lordship contented Bish. of St. Asaph I do acknowledge it The like Recognizances were taken of all the rest of the Bishops and then the Court arose De Termino Sanctae Trinitatis Anno Regni Jacobi Secandi Regis Quarto In Banco Regis Die Veneris vicesimo nono die Junii 1688. in eod ' Term. Being the Feast of St. PETER and St. PAUL Dominus Rex versus Archiep. Cantuar. al. Sir Robert Wright Lord Chief Justice Mr. Justice Holloway Mr. Justice Powell Mr. Justice Allybone Judges Clerk. CRyer make Proclamation thrice Cryer Oyes Oyes Oyes Our Sovereign Lord the King streightly charges and commands every one to keep silence upon pain of Imprisonment Cl. of the Cr. Call the Defendents Cryer William Lord Archbishop of Canterbury Archbish. Here. Cryer William Lord Bishop of St. Asaph Bish. St. Asaph Here. And so the rest of the Bishops were called and answered severally Clerk. Gardez votres Challenges Swear Sir Roger Langley Cryer Take the Book Sir Roger. You shall well and truly try this Issue between our Sovereign Lord the King and William Lord Archbishop of Canterbury and others according to your Evidence So help you God. The same Oath was administred to all the Jury whose Names follow viz. Sir Roger Langley Barr. Sir William Hill Knt. Roger Iennings Esq Thomas Harriot Esq Ieoffery Nightingale Esq William Withers Esq William Avery Esq Thomas Austin Esq Nicholas Grice Esq Michael Arnold Esq Thomas Done Esq Richard Shoreditch Esq Clerk. You Gentlemen of the Jury who are sworn hearken to the Record Sir Thomas Powis Knight His Majesty's Attorney-General has exhibited an Information which does set forth as followeth ff MEmorandum That Sir Thomas Powys Knt. Attorney-General of our Lord the King who for our said Lord the King in this behalf prosecutes came here in his own person into the Court of our said Lord the King before the King himself at Westminster on Friday next after the morrow of the Holy Trinity in this Term and on the behalf of our said Lord the King giveth the Court here to understand and be informed That our said Lord the King out of his signal Clemency and gracious intention towards his Subjects of his Kingdom of England by his Royal Prerogative on the fourth day of April in the third year of the Reign of our said Lord the King at Westminster in the Country of Middlesex did publish his Royal Declaration entituled His Majesty's Gracious Declaration to all his Loving Subjects for Liberty of Conscience bearing date the same day and year sealed with the Great Seal of England in which Declaration is contained JAMES R. pro●…t in the first Declaration before recited And the said Attorney-General of our said Lord the King on behalf of our said Lord the King further giveth the Court here to understand and be informed That afterwards to wit on the twenty-seventh day of April in the fourth year of the Reign of our said Lord the King at Westminster aforesaid in the County of Middlesex aforesaid our-said Lord the King out of his like Clemency and gracious intention towards his Subjects of his Kingdom of England by his Royal Prerogative did publish his other Royal Declaration entituled His Majesty's Gracious Declaration bearing date the same day and year last mentioned sealed with his Great Seal of England in which Declaration is contained JAMES R. Our Conduct has been such c. prout in the second Declaration before recited Which said Royal Declaration of our said Lord the King last mentioned our said Lord the King afterwards to wit on the thirtieth day of April in the fourth year of his Reign aforesaid at Westminster aforesaid in the County of Middlesex aforesaid did cause to be printed and published throughout all England and for the more solemn Declaring Notification and Manifestation of his Royal Grace Favour and Bounty towards all his Leige-people specified in the Declaration last mentioned afterwards to wit on the fourth day of May in the fourth year of his Reign at Westminster aforesaid in the County of Middlesex aforesaid our said Lord the King in due manner did Order as followeth At the Court at Whitehall the Fourth of May 1688. By the King 's most Excellent Majesty and the Lords of His Majesty's most Honourable Privy-Council IT is this day Ordered by His Majesty in Council That His Majesties late Gracious Declaration bearing date the Twenty Seventh of April last be read at the usual time of Divine Service upon the Twentieth and Twenty Seventh of this Month in all Churches and Chappels within the Cities of London and Westminster and Ten Miles thereabout And upon the Third and Tenth of Iune next in all other Churches and Chappels throughout this Kingdom And it is hereby further Ordered That the Right Reverend the Bishops cause the said Declaration to be sent and distributed throughout their several and respective Diocesses to be read accordingly W m. Bridgeman And further the said Attorney-General of our said Lord the King on behalf of our said Lord the King giveth the Court here to understand and be informed That after the making of the said Order to wit on the eighteenth day of May in the fourth year of the Reign of our said Lord the King at Westminster aforesaid in the County of Middlesex

THE PROCEEDINGS AND TRYAL IN THE CASE OF The Most Reverend Father in GOD WILLIAM Lord Archbishop of CANTERBURY And the Right Reverend Fathers in God WILLIAM Lord Bishop of St. Asaph FRANCIS Lord Bishop of Ely IOHN Lord Bishop of Chichester THOMAS Lord Bishop of Bath and Wells THOMAS Lord Bishop of Peterborough And IONATHAN Lord Bishop of Bristol In the Court of Kings-Bench at Westminster in Trinity-Term in the Fourth Year of the Reign of King Iames the Second Annoque Dom. 1688. Licensed and Entred according to Act of Parliament LONDON Printed for Thomas Basset at the George in Fleet street and Thomas Fox at the Angel in Westminster-Hall 1689. TO HIS Most Illustrious HIGHNESS WILLIAM HENRY Prince of Orange May it please Your Highness HOW deeply the Design was laid and with what Violence carry'd on by those who lately Steer'd the Helm of this State for the Subversion of the Establish'd Religion and Government of these Three Kingdoms is already sufficiently well known to Your Highness Among the rest one of their Chiefest Contrivances was by a Malicious and Illegal Prosecution to have extinguish'd the Brigthest Luminaries of the English Church to the end that the benighted People might the more easily after that have been misled into the Pitfals of Superstition and Slavery But as Heaven began their Disappointment in eluding both at once there Subtilty and Malice by the speedy Deliverance of the Seven Renowned Sufferers from the Jaws of their Oppressors So the utter Dissolution of their Arbitrary Command and Domineering Power under the Conduct of the same Providence was fully Compleated Great SIR by Your Deliberative Prudence and Undaunted Courage To Your Illustrious Highness therefore the Oblation of these Sheets containing an exact Accompt of the Prosecution and Tryal of those Heroick Prelates is most justly due as being That wherein Your Higness may in part discern the Justice of the Cause You have so Generously undertaken and that it was not without Reason that the English Nation so loudly Implor'd Your timely Assistance A clear convincement that it was not Ambition nor the desire of spacious Rule but a Noble and Ardent Zeal for the most Sacred Worship of God which rows'd Your Courage to rescue a Distressed Land whose Religion Laws and Liberties were just ready to have been overwhelm'd with French Tyranny and Romish Idolatry Therefore that the Nation may long continue under the Protection of Your Glorious Administration is the Prayer of Great SIR Your Highnesses most Humble Most Faithful and most Obedient Servants Tho. Basset Tho. Fox December 13. 1688. NOT long after the Tryal of his Grace the Lord Archbishop of Canterbury and the other Six Bishops and while the Passages thereof were fresh in my Memory I perused that Copy of this Proceeding and Tryal which Mr. Ince their Lordships Attorney had caused to be taken for their Use And I have also lately read over the same again as intended to be printed by Mr. Basset and Mr. Fox And I do think it to be a very Exact and True Copy of the said Proceeding and Tryal according to the best of my Judgment having been very careful in perusing thereof Ioh. Powel These Peers were present on the 15th Day of Iune 1688. when the Lords the Archbishop and Bishops were brought into Court from the Tower upon the Habeas Corpus VIZ. Lord Marquis of Hallifax Lord Marquis of Worcester Earl of Shrewsbury Earl of Kent Earl of Bedford Earl of Dorset Earl of Bullingbrook Earl of Manchester Earl of Burlington Earl of Carlisle Earl of Danby Earl of Radnor Earl of Nottingham Lord Viscount Fauconberge Lord Grey of Ruthyn Lord Paget Lord Chandoys Lord Vaughan Carbery These Peers were present on the Day of the Tryal being the 29th of Iune 1688. and the Feast of St. Peter and St. Paul. VIZ. Lord Marquis of Hallifax Lord Marquis of Worcester Earl of Shrewsbury Earl of Kent Earl of Bedford Earl of Pembrook Earl of Dorset Earl of Bullingbrook Earl of Manchester Earl of Rivers Earl of Stamford Earl of Carnarvon Earl of Chesterfield Earl of Scarsdale Earl of Clarendon Earl of Danby Earl of Sussex Earl of Radnor Earl of Nottingham Earl of Abington Lord Viscount Fauconberge Lord Newport Lord Grey of Ruthyn Lord Paget Lord Chandoys Lord Vaughan Carbery Lord Lumley Lord Carteret Lord Ossulston 'T is possible more of the Peers might be present both Days whose Names by reason of the Croud could not be taken De Termino Sanctae Trinitatis Anno Regni Jacobi Secundi Regis Quarto In Banco Regis Die Veneris Decimo Quinto Die Junii 1688. Dominus Rex versus Archiep. Cantuar. al. Sir Robert Wright Lord Chief Justice Mr. Justice Holloway Mr. Justice Powell Mr. Justice Allybone Judges THIS being the first day of the Term His Majesties Attorney General as soon as the Court of Kings Bench was sat moved on the behalf of the King for a Habeas Corpus returnable immediate directed to the Lieutenant of the Tower to bring up his Grace the Lord Arch-Bishop of Canterbury and the Bishops of St. Asaph Ely Chichester Bath and Wells Peterborough and Bristol which was granted And with great dispatch about eleven a Clock the very same day the Lieutenant returned his Writ and brought the said Lord Arch-Bishop and Bishops into Court where being set down in Chairs set for that purpose Mr. Attorney-General moved the Court. Viz. Mr. Att. Gen. My Lord I pray that the Writ and Retorn may be read by which my Lords the Bishops are brought hither Lo. Ch. Iust. Read the Retorn Clerk reads the Retorn which in English is as follows viz. I Sir Edward Hales Baronet Lieutenant of the Tower of London named in the Writ to this Schedule annext To Our M●… Serene Lord the King do most humbly certifie That before the coming of the said Writ to wit the Eighth day of June in the Fourth Year of the Reign of our Lord James the Second King of England c. William Lord Arch-bishop of Canterbury William Lord Bishop of St. Asaph Francis Lord Bishop of Ely John Lord Bishop of Chichester Thomas Lord Bishop of Bath and Wells Thomas Lord Bishop of Peterborough and Jonathan Lord Bishop of Bristol mentioned in the aforesaid Writ were committed and delivered to and are retained in my Custody by Vertue of a certain Warrant under the Hands and Seals of George Lord Jeffries Baron of Wem Lord High Chancellor of England Robert Earl of Sunderland Lord President of the Privy Council of our Lord the King Henry Lord Arundel of Warder Keeper of the Pivy Seal of our said Lord the King William Marquess of Powis John Earl of Mulgrave Lord Great Chamberlain of England Theophilus Earl of Huntingtou Henry Earl of Peterborough William Earl of Craven Alexander Earl of Moray Charles Earl of Middleton John Earl of Melfort Roger Earl of Castlemain Richard Viscount Preston George Lord Dartmouth Sidney Lord Godolphin Henry Lord Dover Sir John Earnly Knight Chancellor of the

With Submission that is such a difficulty that lyes in the way against the reading of the Information that you must get over it before you can come at the Reading of it Mr. Att. Gen. You will have your time for all this matter by and by but certainly you cannot be admitted to it yet L. Ch. Iust. Truly I think you are too early with that Exception Mr. Finch With Submission we think this is the proper time and I will tell your Lordship the reason why Ld. Ch. Iust. Mr. Finch certainly every thing in the world that can be said you will say for your Cllent and you shall be heard for we are very willing to deliver these Noble Lords if we can by Law and if the Exceptions you make be legal Mr. Finch My Lord we do not doubt your Justice and therefore we desire to offer what we have to say in this Point the only Question now it seems is about our time of making our Exception Mr. Attor we apprehend did say 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 Information Mr. Attor Gen. Who says so I said no such thing Mr. Finch Then I acquit Mr. Attorney of it he did not say so 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 Process he is not to be Charg'd with an Information then since we do agree in that Proposition certainly we must be heard to this Point Whether we are here upon Legal Process before you can Charge us with this Information Mr. Attor Gen. You think you have said a fine thing now and take upon you an Authority to make me agree to what you please Mr. Finch Certainly the Consequence is plain upon your own Premises Mr. Attor Gen. Do you undertake to speak 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 say what you please but there has been very little said but what has been grounded upon Mistakes all along This is that I do say If a man comes in voluntarily upon any Recognizance though he be not in Custody or if he comes in upon any Process if the Court find him here though that Process be not for the thing Charged in the Information yet the Court is so much in possession of the Person that he shall plead to any Information and That I do say and will stand by Mr. Soll. 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 Assembly than usually we have here and these Gentlemen to shew their Eloquence and Oratory would by converting Propositions otherwise than they are delivered put another meaning upon them and so draw strange Inferences from them but these Arts we are sure will not prevail here we say plainly and we are sure the Law is so let them apprehend what they will That your Lordship cannot exhibit an Information to any man that you find accidentally here in Court then says Mr. Finch we are agreed but withal say I take my other Proposition If a Person be brought into Court by Legal Process or upon any Contempt whatsoever by an Attachment or Warrant or upon a Habeas Corpus after a Commitment being thus found in Court your Lordship may certainly Charge him with an Information when these Gentlemen who are so eager on the otherside did preside here and stood in the places where Mr. Attorney and I now are I can name them abundance of Cases of the like nature with this when men have been compelled to appear to Informations and plead presently they are the Persons that made the Precedents they made the Law for ought I know I 'm sure I find the Court in possession of this as Law and we pray the usual Course may be followed Mr. Finch 'Pray my Lord spare us a word in this matter I do agree with Mr. Attor in this matter but I do not agree with Mr. Sollicitor Mr. Soll. Gen. You do not agree with your self Mr. Finch I hope I do and always shall agree with my self but I do not agree with you Mr. Sollicitor Mr. Soll. Gen. You do not in 1688 agree with what you were in 1680. Mr. Finch Says Mr. Attorney A man that comes voluntarily in cannot be Charged with an Information with him I agree Says Mr. Sollicitor A man that comes in and is found in Court by any Process may be Charg'd with an Information I say no if the Process be wholly illegal for he cannot be said to be legally in Court Suppose a Peer of the Realm be taken upon a Capias and is Committed to the Marsha●…ea and is brought up upon a Habeas Corpus I would fain know whether you could declare against him Mr. Attor Gen. No we cannot Mr. Finch And why is that but because the Process is Illegal and he is not truly in Court Then is it a proper time now to make this a question Whether my Lords here were Legally committed before you can lay any thing to their charge by way of Information for if the Commitment be Illegal it is a void Commitment and if the Commitment be void the Process is void and then my Lords are not Legally in Court. Ld. Ch. Iust. That sure is but returning again to the same question that has been determined already Mr. Soll. Gen. If your Lordship will permit them to go over and over the same things we shall never have an end Mr. Finch My Lord we pray these Gentlemen of the KINGS Council may be a little cool with us and then they will find we do not talk the same things over and over again nor meddle with that which the Court have given their Judgment in Ld. Ch. Iust. Well go on Sir. Mr. Finch My Lord We say it is the Priviledge of the Peers of England that none of them shall be Committed to Prison for a Misdemeanour especially in the first instance and before Judgment this we say is the right of my Lords the Bishops and that which they claim as Lords of Parliament Now it appears upon this Return and the Warrant that the Council-Table hath Committed them for your Lordship and the Court hath rul'd it that this Commitment must be taken to be by Order of the Privy-Council and we meddle not with that further but we say that the Council-Table may Commit a man unjustly that is certain There has been relief often given in this Court against Commitments by the Council-Table And that they were unjustly Committed depends upon that point of their Priviledge as Peers Mr. Serj. Pemb. My Lord we say that the Lords of the Council have Illegally Committed these Noble Persons who are Peers of

some slight Answer but then here are these two persons Mr. Harcourt and Mr. Sillyard and the one has been a Clerk these sixteen or seventeen years and the other has known the Office thirty years though there were not heretofore so many Informations of this Nature and Kind as now of late but still they say that a person that comes in upon a Commitment or a Recognizance shall never have any Imparlance Mr. Sol. Gen. Can they give any one Instance that has any the least shaddow to the contrary Mr. Pollixfen My Lord if we had time we hope we should be able to satisfie you in this Matter Mr. Sol. Gen. You have had time enough to prepare your selves for this Question if you had thought you could do any good in it L. C. I. Would the Course of the Court be otherwise to Morrow then it is to Day we have taken all the Care we can to be satisfied in this Matter and we will take care that the Lords the Bishops shall have all Justice done them nay they shall have all the Favour by my consent that can be shewn them without doing wrong to my Master the King but truly I cannot depart from the Course of the Court in this Matter if the King's Council press it Mr. Att. Gen. My Lord we must pray your Judgment in it and your Direction that they may plead L. C. I. Truly I think they must Plead to the Information Mr. Att. Gen. Sir Samuel Astry pray ask My Lords whether they be Guilty or Not Guilty Then his Grace the Lord Archbishop of Canterbury stood up and offered a Paper to the Court. Archbish. of Cant. My Lord I tender here a short Plea a very short one on behalf of my self and my Brethren the other Defendants and I humbly desire the Court will admit of this Plea. L. C. I. If it please your Grace it should have been in Parchment Mr. Sol. Gen. What is that my Lord offers to the Court L. C. I. We will see what it is presently Mr. Sollicitor Bish. of Peter I pray My Lord that the Plea may be Read. M. Sol. Gen. But not received Mr. Att. Gen. No we desire to know what it is first Sir Rob. Sawyer Mr. Attorney if they will Plead the Court sure is obliged to receive it L. C. I. If it is a Plea your Grace will stand by it L. Archbish. of Cant. We will all stand by it my Lord it is subscribed by our Council and we pray it may be admitted by the Court. Mr. S. Pemb. I hope the Court will not deny to receive a special Plea if we offer one L. C. I. Brother let us hear what it is Mr. Sol. Gen. Read it if you please but not receive it Clerk Reads the Plea which in English is thus The BISHOPS PLEA AND the aforesaid William Archbishop of Canterbury William Bishop of St. Asaph Francis Bishop of Ely John Bishop of Chicester Thomas Bishop of Bath and Wells Thomas Bishop of Peterburgh and Jonathan Bishop of Bristol being present here in Court in their own Persons pray Oyer of the Information aforesaid and it is Read to them which being Read and heard by them the said Archbishop and Bishops The said Archbishop and Bishops say that they are Peers of this Kingdom of England and Lords of Parliament and each of them is one of the Peers of this Kingdom of England and a Lord of the Parliament and that they being as before is manifest Peers of this Kingdom of England and Lords of Parliament ought not to be compelled to answer instantly for the Misdemeanour aforesaid mentioned in the said Information exhibited here against them in this Court but they ought to be required to appear by due Process in Law issuing out of this Court h●…e upon the Information aforesaid and upon their Appearance to have a Copy of the said Information exhibited against them and reasonable time to imparl thereupon and to advise with Council Learned in the Law concerning their Defence in that behalf before they be compelled to answer the said Information Whereupon for that the said Archbishop and Bishops were Imprisoned and by Writ of our Lord the King of Habeas Corpus directed to the Lieutenant of the Tower of London are now brought here in Custody without any Process upon the Information aforesaid issued against them and without having any Copy of the said Information or any time given them to imparl or be advised They pray Judgment and the Priviledge of Peers of this Kingdom in this Case to be allowed them and that They the said Archbishop and Bishops may not be compelled instantly to answer the Information aforesaid c. Rob. Sawyer Hen. Finch Hen. Pollixfen Mr. Att. Gen. My Lord with your Lordship's favour this in an ordinary Person 's Case would perhaps be thought not fair dealing or that which it being in the Case of these Reverend Prelates I shall 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 the Court has been delivered then to put in a Plea to the Jurisdiction of the Court Sir Rob. Sawyer It is no such Plea. Mr. Att. Gen. It is so in effect but certainly it is such an Irregularity and such an unfair way of Proceeding as would not be endured in an ordinary Case and I hope you will give so little countenance to it as to reject it and make them Plead according to the usual course and way of proceedings certainly a Plea of this nature after so long an Argument would be reckoned nothing but a trick Mr. Serj. Pemb. We hope the Court and you are not of one mind Mr. Attorney in this matter we desire the Court to receive the Plea. Mr. Att. Gen. With submission the Court is not bound to receive Pleas 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 rejecting a Plea it is done every day if a Man puts in a mere trifling dilatory Plea the Court may reject it Does this Plea contain any thing in it but what has been argued and debated pro con and setled by the Court already If they will put in any Plea in chief they may but such a Plea as this I hope shall not have so much countenance as to be receiv'd by the Court. Mr. Pollixfen Do you Demur to it if you please Mr. Attorney we will joyn in Demurrer with you Mr. Att. Gen. No there will be no need of that Mr. Sol. Gen. Surely the Court will never give so much Countenance to it as to receive it Mr. Finch If you will please either to Reply or Demur Mr. Sollicitor we are here to maintain the Plea. Mr. Soll. Gen. If you were here you would say the same thing that we do My Lord this Plea is That

there was nothing of Sedition nothing of Malice nothing of Scandal in it nothing of the Salt and Vinegar and Pepper that they have put into the Case We shall prove the Matters that I have open'd for our Defence and then I dare say your Lordship and the Jury will be of Opinion we have done nothing but our Duty Mr. Finch May it please your Lordship and you Gentlemen of the Jury This Information sets forth as you may observe upon opening it that the King having by his Royal Prerogative set forth his Declarations that have been read and made an Order of Council for the Reading the said Declarations in the Churches and that the Archbishop and Bishops should severally send them into their Diocesses to be read my Lords the Bishops that are the Defendants did consult and conspire together to diminish the Kingly Authority and Royal Prerogative of the King and his Power and Government in his Regal Prerogative in setting forth his Declaration and that in prosecution of that Conspiracy they did contrive as it was laid in the Information a malicious seditious scandalous false and feigned Libel under pretence of a Petition and so set forth the Petition and that they published the Petition in the presence of the King. To this Charge in the Information Not Guilty being pleaded the Evidence that hath been given for the King I know hath been observed by the Court and the Jury and I know will be taken into Consideration how far it does come up to the Proof of the Delivery of this Petition by my Lords the Bishops for all that was said till my Lord President was pleas'd to come was no Evidence of any Delivery at all and my Lord Pre●…dent's Evidence is that they were going to deliver a Petition but whether they did deliver it or did it not or what they did deliver he does not know This is all the Evidence that has been given for the King. But supposing now my Lord that there were room to presume that they had delivered this Petition set forth in the Information let us consider what the Question is between the King and my Lords the Bishops The Question is Whether they are guilty of Contriving to diminish the King's Regal Authority and Royal Prerogative in his Power and Government in setting forth this Declaration Whether they are guilty of the making and presenting a malicious seditious and scandalous Libel and whether they have published it as it is said in the Information in the King's Presence So that the Question is not now reduced to this Whether this Paper that is set forth in the Information was delivered to the King by my Lords the Bishops but whether they have made a malicious seditious and scandalous Libel with an Intent to diminish the King's Royal Prerogative and Kingly Authority And then if you Gentlemen should think that th●… is Evidence given sufficient to prove that my Lords the Bishops have delivered to the King that Paper which is set forth in the Information yet unless they have delivered a false malicious seditious and scandalous Libel unless they have published it to stir up Sedition in the Kingdom and unless they have contrived this by Conspiracy to diminish the King 's Royal Prerogative and Authority and that Power that is said to be i●… the King my Lords the Bishops are not guilty of this Accusation There are in this Declaration several Clauses which upon reading of the Information I am sure cannot but have been observed by you Gentlemen of the Jury and one special Clause hath been by the Council already opened to you and I shall not enlarge upon it My Lord This Petition that is thus delivered to the King if it be a Libel a scandalous and seditious Libel as the Information calls it it must be so either for the Matter of the Petition or for the Persons that deliver'd the Petition or for the manner of their presenting and delivering it But neither for the Matter nor for the Persons nor for the manner of presenting it is there any Endeavour to dim●…nish the King 's Royal Prerogative nor to stir up Sedition nor Reflection upon the King 's true Royal and Kingly Authority The Petition does humbly set forth to His Majesty that there having been such a Declaration and such an Order of Council they did humbly represent to His Majesty that they were not averse to any thing commanded them in that Order in respect to the just and due Obedience that they owed to the King nor in respect of their want of a due Tenderness to those Persons to whom the King had been pleased to shew his Tenderness but the Declaration being founded upon a Power of Dispensing which had been declared illegal in Parliament several times and particularly in the Years 1662 72 and 85. they did humbly beseech His Majesty they not being able to comply with his Command in that matter that he would not insist upon it Now my Lord Where is the Contrivance to diminish the King's Regal Authority and Royal Prerogative This is a Declaration founded upon a Power of Dispensing which undertakes to suspend all Laws Ecclesiastical whatsoever for not Coming to Church or not Receiving the Sacrament or any other Nonconformity to the Religion established or for or by reason of the Exercise of Religion in any manner whatsoever Ordering that the Execution of all those Laws be immediately suspended and they are thereby declared to be suspended as if the King had a Power to suspend at once all the Laws relating to the establish'd Religion and all the Laws that were made for the Security of our Reformation These are all suspended by His Majesty's Declaration as it is said in the Information by virtue of his Royal Prerogative and Power so to do Now my Lord I have always taken it with Submission that a Power to abrogate Laws is as much a part of the Legislature as a Power to make Laws A Power to lay Laws asleep and to suspend Laws is equal to a Power of Abrogating them for they are no longer in Being as Laws while they are so laid asleep or suspended And to abrogate all at once or to do it time after time is the same thing and both are equally parts of the Legislature My Lord In all the Education that I have had in all the small Knowledge of the Laws that I could attain to I could never yet hear of or learn that the Constitution of this Government in England was otherwise than thus That the whole Legislative Power is in the King Lords and Commons the King and his two Houses of Parliament But then If this Declaration be founded upon a part of the Legislature which must be by all Men acknowledged not to reside in the King alone but in the King Lords and Commons it cannot be a legal and true Power or Prerogative This my Lord has been attempted but in the last King's time it never was pretended till

then and in that first Attempt it was so far from being acknowledged that it was taken notice of in Parliament and declared against So it was in the Years 1662. and 1672. In the Year 62. where there was but the least Umbrage given of such a Dispensing Power although the King had declared in his Speech to the Parliament that he wished he had such a Power which his Declaration before seemed to assume the Parliament was so jealous of this that they immediately made their Application to His Majesty by an Address against the Declaration and they give Reasons against it in their Address One in particular was That the King could not dispense with those Laws without an Act of Parliament There was another Attempt in 1672. and then after His Majesty had in his Speech mentioned his Declaration to them the Parliament there again particularly the House of Commons did humbly address to His Majesty setting forth that this could not be done by Law without an Act of Parliament And your Lordship by and by upon reading the Record will be satisfied what was the Event of all this His Majesty himself was so far pleased to concurr with them in that Opinion that he cancell'd his Declaration tore off the Seal and caused it to be made known to the House of Lords by the Lord Chancellor who by His Majesty's Command satisfied the House of it that His Majesty had broken the Seal and cancell'd the Declaration with this further Declaration which is enter'd in the Records of the House That it should never be drawn into Example or Consequence My Lord The Matter standing thus in respect to the King's Prerogative and the Declarations that had been made in Parliament consider next I beseech you how far my Lords the Bishops were concerned in this Question humbly to make their Application to the King. My Lords the Bishops lying under a Command to publish this Declaration it was their Duty as Peers of the Realm and Bishops of the Church of England humbly to apply themselves to His Majesty to make known their Reasons why they could not obey that Command and they do it with all Submission and all Humility representing to His Majesty what had been declared in Parliament and it having been so declared they could not comply with his Order as apprehending that this Declaration was founded upon that which the Parliament declared to be illegal and so His Majesty's Command to publish this Declaration would not warrant them so to do This they did as Peers and this they had a Right to do as Bishops humbly to advise the King. For suppose my Lord which is not to be supposed in every Case nor do I suppose it in this but suppose that there might be a King of England that should be mis-led I do not suppose that to be the Case now I say but I know it hath been the Case formerly that the King should be environed with Counsellors that had given him evil Advice it has been objected as a Crime against such evil Counsellors that they would not permit and suffer the Great Men of the Kingdom to offer the King their Advice How often do we say in Westminster-Hall That the King is deceived in his Grant There is scarce a Day in the Term but it is said in one Court or other but it was never yet thought an Offence to say so And what more is there in this Case My Lord If the King was mis-informed or under a Mis-apprehension of the Law my Lords as they are Peers and as they are Bishops are concerned in it and if they humbly apply themselves to the King and offer him their Advice where is the Crime My Lord These noble Lords the Defendants had more than an ordinary Call to this for besides the Duty of their Office and the Care of the Church that was incumbent on them as Bishops they were here to become Actors for they were by that Order of Council commanded themselves to publish it and to distribute it to the several Ministers in their several Diocesses with their Commands to read it Therefore they had more than ordinary Reason to concern themselves in the Matter Next We are to consider my Lord in what manner this was done They make their Application to the King by an humble Petition with all the Decency and Respect that could be shewn asking leave first to approach his Person and having leave they offer'd my Lord President the Matter of their Petition that nothing might seem hard or disrespectful or as if they intended any thing that was unfit to be avowed When they had taken all this Care in their Approach and begging leave for it they come secretly to the King in private when he was all alone and there they humbly present this Petition to His Majesty Now how this can be called the Publication of a malicious and seditious Libel when it was but the Presenting of a Petition to the King alone And how it can be said to be with an Intent to stir up Sedition in the People against His Majesty and to alienate the Hearts of his People from him when it was in this private manner delivered to him himself only truly I cannot apprehend My Lord I hope nothing of this can be thought an Offence If the Jury should think that there has been Evidence sufficient given to prove that my Lords the Bishops did deliver this Paper to the King yet that is not enough to make them guilty of this Information unless this Paper be likewise found to be in Diminution of the King 's Royal Prerogative and Regal Authority in dispensing with and suspending of all Laws without Act of Parliament Unless it be found to be a Libel against the King to tell him That in Parliament it was so and so declared And unless the presenting this by way of Petition which is the Right of all People that apprehend themselves aggrieved to approach His Majesty by Petition be a Libelling of the King And unless this humble Petition in this manner presented to the King in private may be said to be a malicious and seditious Libel with an Intent to stir up the People to Sedition Unless all this can be found there is no Man living can ever find my Lords the Bishops guilty upon this Information Therefore my Lord we will go on and make out this Matter that we have opened to your Lordship if Mr. Attorney and Mr. Sollicitor think fit to argue the Points that we have opened Mr. Pollixfen Pray my Lord spare me a Word on the same Side For the first Point It is a Point of Law whether the Matter contained in this Petition be a Libel The King's Council pretend it is so because it says the Declaration is founded upon a Power the Parliament has declared to be illegal But we say that whatsoever the King is pleased to say in any Declaration of his it is not the King 's saying of it that makes

Religion that was intended to be prohibited and so much Care was taken and so many Statutes made to prohibit it will come in and all this Care and all those Statutes go for nothing This one Declaration sets them all out of doors and then that Religion stands upon equal Terms with the established Religion My Lord We say this farther that my Lords the Bishops have the Care of the Church by their very Function and Offices and are bound to take care to keep out all those false Religions that are prohibited and designed to be kept out by the Law. My Lords the Bishops finding this Declaration founded upon a meer pretended Power that had been continually opposed and rejected in Parliament could not comply with the King's Command to read it My Lord Such a Power to dispense with or suspend the Laws of a Nation cannot with any shadow of Reason be It is not long since that such a Power was ever pretended to by any but such as have the Legislative too for it is plain that such a Power must at least be equal to the Power that made the Laws To dispense with a Law must argue a Power greater or at least as great as that which made the Law. My Lord It has been often said in our Books That where the King's Subjects are concerned in Interest the King cannot suspend or dispense with a particular Law. But my Lord how can the King's Subjects be more concern'd in Interest than when their Religion lies at stake It has been resolved upon the Statute of Symony that where the Statute has disabled the Party to take there the King could not enable him against that Act of Parliament And shall it be said that by his Dispensation he shall enable one to hold an Office who is disabled by the Test-Act My Lord We say The Course of our Law allows no such Dispensation as this Declaration pretends to And he that is but meanly read in our Law must needs understand this That the Kings of England cannot suspend our Laws for that would be to set aside the Law of the Kingdom And then we might be clearly without any Laws if the King should please to suspend them 'T is true we say the last King Charles was prevailed upon by Mis-information to make a Dispensation somewhat of the nature of this though not so full an one for that dispensed only with some few Ceremonies and things of that nature But the House of Commons this taking Air in 1662. represent this to the King by a Petition And what is it that they do represent That he by his Dispensation has undertaken to do that which nothing but an Act of Parliament can do that is the dispensing with Penal Laws which is only to be done by Act of Parliament And thereupon it was thought fit upon the King's Account to bring in an Act for it in some Cases My Lord The King did then in his Speech to the Parliament which we use as a great Argument against this Dispensing Power say this That considering the Circumstances of the Nation he could wish with all his Heart that he had such a Power to dispense with some Laws in some Particulars And thereupon there was a Bill in order to an Act of Parliament brought in giving the King a Power to dispense but my Lord with a great many Qualifications Which shews plainly that it was taken by the Parliament that he had no Power to dispense with the Laws of himself My Lord Afterwards in 1672. the King was prevailed upon again to grant another Dispensation somewhat larger L. C. I. Brother Pemberton I would not interrupt you but we have heard of this over and over again already Mr. S. Pemberton Then since your Lordship is satisfied of these things as I presume you are else I should have gone on I have done my Lord. Mr. S. Levinz But my Lord we shall go a little higher than that and shew that it has been taken all along as the ancient Law of England that such Dispensations ought to be by the King and the Parliament and not by the King alone Mr. Soll. Gen. My Lord if you will admit every one of the Council to Speech it before they give their Evidence when shall we come to an End of this Cause We shall be here till Midnight L. C. I. They have no Mind to have an End of the Cause for they have kept it three Hours longer than they need to have done Mr. S. Pemberton My Lord This Case does require a great deal of Patience L. C. I. It does so Brother and the Court has had a greas deal of Patience But we must not sit here only to hear Speeches Mr. Att. Gen. 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 William Fisher. William Fisher Clerk to Mr. Ince sworn L. C. I. What do you ask him Sir Rob. Sawyer Shew him that Copy of the Record The Record was then shewn him L. C. I. Where had you those Sir Mr. Fisher. Among the Records in the Tower. L. C. I. Are they true Copies Mr. Fisher. Yes my Lord. L. C. I. Did you examine them by the Record Mr. Fisher. Yes my Lord. Sir Rob. Sawyer Then hand them in put them in Clerk reads Ex Rotulo Parliamenti de Anno Regni Regis Richardi Secundi XV. No 1. My Lord It is written in French and I shall make but a bad Reading of it Sir Sam. Astrey Where is the Man that examin'd it Do you understand French Mr. Fisher. Yes my Lord. Sir Rob. Sawyer The Record is in another Hand than this they may easily read it Mr. Soll. Gen. Who copy'd this Paper Mr. Fisher. I did examine it Mr. Soll. Gen. What did you examine it with Mr. Fisher. I look'd upon that Copy and Mr. Halstead read the Record L. C. I. Young Man read out Fisher reads Vendredy Lande maine del Almes qu'estoit le primier jour Mr. Soll. Gen. Pray tell us what it is you would have read Mr. S. Levinz I 'll tell you what it is Mr. Sollicitor 'T is the Dispensation with the Statute of Provisors And the Act of Parliament does give the King a Power to dispense till such a time Mr. Soll. Gen. Don't you think the King's Prerogative is affirmed by many Acts of Parliament Mr. S. Levinz If the King could dispense without an Act of Parliament what need was there for the making of it Mr. Soll. Gen. Mr. Serjeant We are not to argue with you about that yet L. C. I. Read it in English for the Jury to understand it Mr. Fisher. My Lord I cannot undertake to read it so readily in English. Mr. I. Powel Why don't you produce the Records that are mentioned in the Petition those in King Charles the Second's time Mr. S. Levinz We will produce our Records in Order of Time as they

are Sir Sam. Astrey There is the Clerk of the Records of the Tower Mr. Halstead will read it very well in French or English. Then Mr. Halstead was sworn to interpret the Records into English according to the best of his Skill and Knowledge but not reading very readily a true Copy of the Record in English follows out of the Rolls of Parliament in the 15th Year of King Richard the Second Numero Primo FRiday the Morrow of All Souls which was the first Day of this Parliament holden at Westminster in the fifteenth Year of the Reign of our Lord King Richard the Second after the Conquest the Reverend Father in God the Archbishop of York Primate and Chancellor of England by the King's Commandment being present in Parliament pronounced and declared very nobly and wisely the Cause of the Summons of this Parliament And said First That the King would that holy Church principally and afterwards the Lords Spiritual and Temporal and also the Cities and Burroughs should have and enjoy their Liberties and Franchises as well as they had them and enjoyed them in the Time of his Noble Progenitors Kings of England and also in his own Time. And afterwards said The Summons of this Parliament was principally for three Occasions The first Occasion was To ordain how the Peace and Quiet of the Land which have heretofore been greatly blemished and disturbed as well by Detraction and Maintenance as otherwise might be better holden and kept and the Laws better executed and the King's Commands better obeyed The second Occasion was To ordain●… and see how the Price of Wools which is beyond measure lessened and impaired might be better amended and inhaunced And also That in case the War should begin again at the End of the present Truce to wit at the Assumption of our Lady next coming to ordain and see how and whereby the said War may be maintained at the least Charge of the People And the third Occasion was touching the Statutes of Provisors To ordain and see how our Holy Father might have that which to him belongs and the King that which belongs to him and to his Crown according unto that Render unto Caesar the things that are Caesar ' s and unto God the things which are God's Then the other Record of Richard the Second was read as follows out of the Rolls of Parliament the fifteenth Year of King Richard the Second No 8 Be it remembred touching the Statute of Provisors That the Commons for the great Confidence which they have in the Person of our Lord the King and in his most excellent Knowledge and in the great Tenderness which he hath for his Crown and the Rights thereof and also in the noble and high Discretions of the Lords have assented in full Parliament that our said Lord the King by Advice and Assent of the said Lords may make such Sufferance touching the said Statute as shall seem to him reasonable and profitable until the next Parliament so as the said Statute be not repealed in no Article thereof And that all those who have any Benefices by force of the said Statute before this present Parliament and also That all those to whom any Aid Tranquility or Advantage is accrued by virtue of the said Statute of the Benefices of Holy Church of which they were heretofore in Possession as well by Presentation or Collation of our Lord the King as of the Ordinaries or Religious Persons whatsoever or by any other manner or way whatsoever may freely have and enjoy them and peaceably continue their Possession thereof without being ousted thereof or any ways challenged hindred molested disquieted or grieved hereafter by any Provisors or others against the Form and Effect of the Statute aforesaid by reason of the said Sufferance in any time to come And moreover That the said Commons may disagree at the next Parliament to this Sufferance and fully resort to the said Statute if it shall seem good to them to do it With Protestation That this Assent which is a Novelty and has not been done before this time be not drawn into Example or Consequence for Time to come And they prayed our Lord the King that the Protestation 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 Assent of the Lords to dispense but only to the next Parliament with a Power reserved to the Commons and to disagree to it and retract that Consent of theirs the next Parliament Sir Geo. Treby The Statute of Provisors was and is a Penal Law and concerning Ecclesiastical Matters too viz. The Collating and Presenting to Archbishopricks Bishopricks Benefices and Dignities of the Church And in this Record now read the Parliament give the King a limited Power and for a short Time to dispense with that Statute But to obviate all Pretence of such a Power 's being inherent in the Crown as a Prerogative they declare 1. That it was a Novelty that is as much as to say That the King had no such Power before 2. That it should not be drawn into Example that is to say That he should have no such Power for the future Mr. S. Levinz Now we will go on to the Records mentioned in the Petition those in the last King's Time in 1662 and 1672 and that in this King's Time in 1685. Where is the Journal of the House of Lords Mr. Walker sworn L. C. I. Is that the Book of the House of Lords Mr. Walker It is the Journal of the House of Lords L. C. I. Is it kept by you Mr. Walker Yes my Lord. L. C. I. Where is it kept Mr. Walker In the usual place here in Westminster Mr. Soll. Gen. What is that Mr. S. Levinz It is the Journal of the House of Lords But my Lord there is one thing that is mentioned in the last Record that is read which is worth your Lordship's and the Jury's Observation That it is declared a Novelty and a Protestation that it should not be drawn into Precedent for the future L. C. I. That has been observed Brother Let us hear your Record read Clerk read Die Mercurii 18 o die Februarii 1662. His Majesty was present this Day sitting in the Regal Crown and Robes the Peers being likewise in their Robes The King gave Order to the Gentleman Usher of the Black Rod to signifie to the House of Commons his Pleasure that they presently come up and attend His Majesty with their Speaker who being present His Majesty made this Speech following My Lords and Gentlemen I Am very glad to meet you here again having thought the Time long since we parted and often wished you had been together to help me in some Occasions which have fallen out I need not repeat them unto you you have all had

not at all to the purpose That is but what was offered in another Case that may be remembred and offered by way of Plea and pressed with a great deal of Earnestness but Rejected by the Court and now what could not be receiv'd then by way of Plea these Gentlemen would by their Importunity have you receive by way of Parole at the Bar I suppose the Design is to entertain this great Auditory with an Hara●…gue and think to perswade the weak men of the World for the wise are not to be imposed upon that they are in the Right and we in the wrong under Favour my Lord we are in the Right for the King we desire this Information may be read and let them plead what by Law they can to it according to the Course of the Court but that which they now urge is untimely and out of Course Sir Rob. Sawyer My Lord we offer this to your Lordship Mr. Att. Gen. Why Gentlemen you have been heard before your time already Mr. S. Pemberton Pray my Lord give us leave to answer what the Kings Counsel have objected L. C. I. The Kings Counsel have answered your Objections and we must not permit Vying and Re-vying upon one another if you have no more to say but only as to the Matters that have been urged you have been heard to it on both sides already Mr. S. Pemberton I would if you please answer what has been objected by the Kings Counsel and state the Case aright Mr. Iust. Allybone Brother Pemberton I do not apprehend that the Objection you make against this Commitment has any weight in it The Objection as I take it is this that these Lords were not legally committed because they were committed says the Return by such and such Lords of the Council particularly named and it does not specifie them to be united in the Privy Council now truly with me that seems to have no weight at all and I will tell you why If my Lord Chief Iustice do commit any Person and set his Name to the Warrant he does not use to add to his Name Lord Chief Iustice but he is known to be so without that Addition and would you have a different Return from the Lieutenant of the Tower to a Habeas Corpus than the Warrant it self will justifie the Lords do not use to write themselves Privy Counsellors they are known to be so as well as a Judge who only writes his Name and does not use to make the addition of his Office. Sir Rob. Sawyer Pray my Lord give me leave to be heard to this I think truly it is a weighty Objection for under Favour we say it must upon the Return here appear that they were legally committed before you can charge them with an Information I do not take Exceptions to the Warrant because it is subscribed by such Lords and they do not write themselves Lords of the Council they need not do that and the Return has averred that they are so But the Return ought to have been that it was by Order of the Privy Council and so it must be if they would shew my Lords to be legally committed that they were committed by Order of the Privy Council and not by such and such particular Persons Lords of the Privy Council so in the Case put by Mr. Iustice Allybone of a Commitment by your Lordship or any of the Judges it must be returned to be by such a Warrant by such a One Chief Iustice for that shews the Authority of the Person committing and then your Lordships Name to it indeed is enough without the Addition But if it does not appear by the Return that there was sufficient Authority in the Person to commit your Lordship cannot take it to be a Legal Commitment But now in this Case they could have no Authority to commit but in Council and this Return seems to make it done by them as particular Persons and that 's not a good Return with your Lordships favour upon which these Reverend and Noble Lords can be detained in Prison But what do they on the other side say to this Why we shall be heard to it anon but my Lord they very well know it would be too late for that Effect which we desire of our Motion and therefore we lay the Objections before you now in its proper time say we you ought not to read any Information against us because we are not legally here before the Court and sure that which was said by the Kings Councel that your Lordship may charge any One that you find here in Court which way soever he comes in cannot be legal Mr. Att. Gen. Who ever said so Sir Robert Sawyer I apprehended you said so Mr. Attorney or else you said nothing Mr. Att. Gen. Sir Robert Sawyer You of that side have a way of letting your selves in to say the same things over and over again and of making us to say what you please Sir Rob. Sawyer Truly I did apprehend you laid down that for Doctrine which I thought a very strange One for we say with your Lordships favour he that is in Court without a Legal process is not in Court so as to be charged with an Information S. Pemberton My Lord It is not the Body being found here that intitles the Court to proceed upon it but the person accused is to be brought in by Legal Process Then if we be not here by Legal Process the Information cannot be charged upon us and if we suffer it to be read it will be too late for us to make this Objection L. C. I. That you have all said over and over and they have given it an Answer Mr. Att. Gen. Pray Mr. Serjeant will you make an end you have repeated your Objection over and over I know not how often and will never be contented with our Answer Mr. I. Allyb. Sir Rob. Sawyer That which you said in Answer to the Case I put methinks does not answer it For if the Return be as good that it was by a Warrant from such an one Lord Chief Iustice as if my Lord Chief Iustice had added the Title of his Office to his own Name when he subscribed the Warrant Then this Return That this was done by such and such Lords of the Council must be as good as if they had added that to their own Names Sir Rob. Sawyer That is not our Objection Mr. Att. Gen. Your Objection has been heard and answered we pray the Information may be read Mr. Serj. Pemberton No we are not come to that yet Mr. I. Allyb. Pray would you have an Averment by the Lieutenant of the Tower in his Return to an Habeas Corpus that it was done by them in the Council-Chamber Mr. Finch My Lord The Difference is this with Submission a Commitment by Sir Rob. Wright Ch Justice is a good Commitment and a Return of that Nature were a good Return because he is Chief Justice all over

England and hath Authority to commit wherever he is but a Commitment by such an one or such and such Lords of the Privy-Council cannot be a good Return of a Commitment because though they be Lords of the Council yet neither single or apart nor all together have Authority to do such an Act unless they be assembled in the Privy-Council there their Authority is circumscribed so that that must needs be a great difference between a Commitment made by a Judge who is always so and a Commitment by a Lord or so many Lords by the Name of Lords of the Privy-Council who carry not their Authority about with them but are limited to their Assembly in Council Mr. I. Allyb. Mr. Finch Indeed your Objection is worth something if my Lord Chief Justice could not act but as under the character of Chief Justice for you are now arguing that these Lords could not do this Act but as Lords of the Council in Council the same say I may be said of a Commitment by the Lord Chief Justice he cannot do it but under the formality of his Authority as he is Chief Justice unless you will make it impossible for him to do any thing but as Chief Justice or unless you make it impossible to separate his Person from his Authority Mr. Finch But Sir the difference lies here the Authority of the one is general and universal and goeth with him wherever he goes the other's Authority is limited to a particular sphere Mr I. Allyb. Why would you have it averred That they did it being assembled in Council Mr. Finch Under favour they cannot justifie any thing that was done by them as Lords of the Council but in the Privy-Council Mr. I. Powel Truly my Lord for my part I think there is no such great necessity of haste in this matter Here are Exceptions taken to this Return and the matter transacted now before us appears to me to be of very great weight peradventure a greater or a weightier has not been agitated in this place in any Age it concerns these Noble and Reverend Lords in point of Liberty it comes suddenly upon us and therefore my Lord I think it very fit we should consider a little of this matter and consult the Precedents of Returns how they are for there are multitudes of Returns of Writs of Habeas Corpus in this Court therefore it were requisite that we did consult 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 otherwise it is fit we should keep to the usual Forms L. C. I. What 's your Opinion of it Brother Allybone Mr. I. Allyb. I am still of the same mind I was my Lord That he could make no Return but this Return he has made and if his Warrant was insufficient upon this Account that these particular persons Lords of the Privy-Council did this Act without saying that they did it in Privy-Council then 't is not his Return that could mend it and truly I do not know that there does need any Precedent for this for every one knows where the Lords of the Council are and 't is a sufficient Averment this that is in the Return Mr. Pollexfen They are Lords of the Council every where but they do not act as Lords of the Council any where but in Council Mr. I. Allyb. So my Lord Chief Justice is Chief Justice every where Mr. Finch And he can do Judicial Acts as such every where but the Lords of the Council cannot act but in the Council Mr. I. Allyb. Nor is it to be presumed that they did do it Mr. Finch It is not a presumption that is to make any thing in this case but the Question is whether here be a legal Return of a legal Commitment Mr. I. Allyb. Such publick Persons in such publick Acts can never be presumed to act in their separate private capacities Mr. Finch But with submission your Lordships can judge only what is before you in this Return whether it be a good Return and whether here be a good Authority asserted in the persons that did commit my Lords the Bishops L. C. I. Truly as to this Objection and Exception that has been made by them I have considered of it and what has been said on all sides and I think 't is the usual way of Commitment I never saw any other all the Warrants that ever I saw are of this Form if there were any Precedents they should be shewn of that side Sir Robert Sawyer There are multitudes of Precedents otherwise and none of this Form. L. I. C. I confess 't is a Case of great Weight and the Persons concerned are of great Honour and Value and I would be as willing as any body to testifie my Respects and Regards to my Lords the Bishops if I could see any thing in it worth considering of Mr. Sol. Gen. There 's no colour for it if they do but look upon the Statute of the 16th and 17th of the late King which arraigns the Proceedings of his Privy-Council that tells you what things belong to the cognizance of the Privy-Council and what not and there you have all the Distinctions about Commitments by the King and Council and by the Lords of the Council And that Act will shew that this is a Commitment according to the usual 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 such an one Chief Iustice that is the Style that is very well known for such Warrants So a Commitment by such and such naming them particularly Lords of the Council that 's an Order made by the Lords in Council and that Statute distinguishes between Commitments of one sort and the other and it does it because sometimes Warrants run in one form and sometimes in another but they all come within the Direction of that Statute My Lord we are in a plain Case my Lords the Bishops 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 Lordship give us leave to have that Statute lookt into which Mr. Sollicitor speaks of and then we shall see whether it be to his purpose L. C. I. Let the Statute be read Mr. Sol. Gen. If it be Keeble's Book it is the 16th of Charles the First if it be the Old Book it is the 16th and 17th of Car towards the end Clerk reads Provided always and be it enacted that this Act and the several Clauses therein contained shall be taken and expounded to extend onely to the Court of Star-Chamber and to the said Court holden before the President and Council in the Marches of Wales and before the President and Council in the Northern parts Mr. Soll. Gen. It is the Paragraph before that Clerk reads And be

the Realm and ought to have the priviledge of their Peerage which is not to be Committed for a Misdemeanour that the Council ought not to have done For the Peers of England ought no more to be Committed for a Misdemeanour and to be Imprisoned especially upon the first Process than they may be in a case of Debt It is true in the case of Treason Felony or the Breach of the Peace the Peers have not such a Priviledge they may be Committed but for a bare Misdemeanour as this does appear to be in the Warrant of Commitment they ought not to be Committed but they were Committed by the Lords of the Council and we now complain of this to your Lordship as Illegal and therefore pray my Lords may be discharged Sir Robert Sawyer Will your Lordship be pleased to favour me a Word on the same side for my Lords the Bishops It must be agreed to me that if a Peer be brought into Court as taken by a Capias he cannot be charged with a Declaration and the reason is because the Process is Illegal Then my Lord with submission When a Peer comes upon a Foreign Commitment and is brought in Custody upon a Habeas Corpus this is either in the nature of a Process or a final Commitment as a Judgment they will not say that this is a good Commitment so as to amount to a Judgment for the Council-Board could not give a Judgment in the case besides the Commitment is Illegal because it is not a Commitment till they find security to answer an Information here but 't is a Warrant to keep them for a Misdemeanour besides there is another thing we have to say to this Warrant for I am making Objections against the Validity of this Commitment it does not appear that there was any Oath made and therefore the Court must adjudge that there was no Oath made and then no man ought without an Oath to be Committed much less a Peer but that which we chiefly rely upon is That my Lords ought not to have been Committed for this which is but a Misdemeanour at most And if they use it as Process to bring my Lords the Bishops to answer an Information we say By Law no such Process can be taken out against the Persons of Peers for bare misdemeanours I do agree that for Fellony Treason or Surety of the Peace the Persons of Peers may be Committed and that which is called Surety of the Peace in our Books Mr. Sollicitor knows very well in some of the Rolls of Parliament is called Breach of the Peace but it is all one and the meaning in short is That it is such a Breach of the Peace as for which a Man by Law may be obliged to find Sureties for the Peace If it should mean a Breach of the Peace by implication as all Trespasses and Misdemeanours are said to be Contra Pacem in the Indictment or Information then it were a simple thing to enumerate the Cases wherein Priviledges did not lie for there could be no Information whatsoever but must be Contra Pacem and so there could be no such thing as Priviledge at all And besides we say the very Course of this Court is contrary to what they would have for in the Case of a Peer for a Misdeameanour you go first by Summons and then you do not take out a Capias as against a common Person but the next Process is a Distringas and so ad Infinitum And I do appeal to them on the other side and Challenge them to shew any one Precedent when a Peer was brought thus into Court to be charged with an Information without it were in the Case of an apparent Breach of the Peace for he must be Charged in Custody and there must be a Committitur to the Marshal to intitle the Court to proceed your Lordship will find very few Precedents of Cases of this Nature about common Persons for till within these 14 or 15 years there was no such thing ever done against a common Person But this was the Rule first there went out a Subpoena and then an Attachment and when the Party was taken upon the Attachment he is taken to come in upon Process and then the Court would Charge him presently 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 Course till the next ●…erm before he could be compelled to Plead But in the Case of a Peer there never was any such Precedent as the Attaching his Person but only a Summons and Distress and I would be glad the KING's Council would shew that ever there was any such process taken out against the Person of a Peer for a meer Misdemeanour My Lord 't is plain what Breach of the Peace means in every Information and I only speak this to acquaint the Court how the constant Proceedings in all these cases have been These Informations were anciently more frequent in the Star-Chamber and what was the Process there Not the common Process of a Subpoena that was not the course there but the Process was a Letter from the Chancellor that if the Party upon that Letter did not appear in a Common Case there went out an Attachment but in a Peers Case never and so it appears by Cromptons Iurisdiction of Courts Tit. Star-Chamber 33. This appears likewise by the Proceedings in Chancery against the Peers till the Queens time they did not so much as take out an Attachment after default upon a Subpoena but they would then in the Queens time be so bold as to take out an Attachment against a Lord for not appearing but that Course was condemned as illegal so we find in my Lord Dyer Mr. Attor Gen. That was at a common Persons Suit. Sir Robert Sawyer But the proceedings in the Star-Chamber were at the King's Suit and I am sure Mr. Sollicitor knows that the Peers priviledges reach to Informations but as I was saying it was so adjudged as to the Chancery in my Lord Cromwel's Case xiiii Eliz. Dyer 315. Ld. Ch. Iust. You take a great compass Sir Robert Sawyer but pray remember what you laid down at first for the Ground of your discourse That there was never any Commitment of a Peer for a bare Misdemeanour you must keep to that that is the Point you are to look after Sir Robert. Sawyer My Lord I will so I do not Cite these Cases but for this purpose to shew that in all Courts the Peers have particular Priviledges and I am sure they can produce you no Precedents for any such proceedings against a Peer in my experience of these matters I never knew any such nay I knew it always to be otherwise That in Informations for Misdemeanours there did never issue out a Capias against a Peer and Mr. Attorney knows very well it was so in the late Case of my Lord Lovelace for that Case of my