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 Mâ—… 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 Exchequer of our said Lord the King Sir
Edward Herbert Knight Chief Iustice of the Common Bench of our Lord the King and Sir Nicholas Butler Knight Lords of his Majesties Most Honourable Privy Council to me directed the Tenor of which Warrant follows in these Words viz. THESE are in his Majesties Name and by his Command to require you to take into your Custody the Persons of William Lord Arch-bishop of Canterbury 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 For Contriving Making and Publishing a Seditious Libel in Writing against his Majesty and his Government and them safely to keep in your Custody until they shall be delivered by due Course of Law For which this shall be your sufficient Warrant At the Council Chamber in White-Hall this Eighth day of Iune 1688. And this is the Cause of the taking and detaining c. Lord Ch. Iust. Well What do you desire Mr. Attorney Mr. Att. Gen. We pray for the King that the Return may be filed L. Ch. Iust. Let it be filed Mr. Att. Gen. By this Retorn your Lordship observes what it is my Lords the Bishops were committed to the Tower for it is by Warrant from the Council Board where when their Lordships appeared they were not pleased 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 Habeas Corpus and by the Retorn it does appear it was for Contriving Writing Framing and Publishing a Seditious Libell against His Majesty and the Government My Lord it is our Duty who are the King's Councel pursuant to our Orders to prosecute such kind of Offences and when the proper time shall come for us to open the nature of the Offence your Lordships will then judge what reason there is for this Prosecution but in the mean time what we are now to offer to your Lordship is The Officer of this Court has an Information against his Grace the Archbishop of Canterbury and the rest of my Lords the Bishops which we desire may be read to them and pray that they may plead to it according to the Course of the Court. Sir Rob. Sawyer If it please your Lordship to spare us a word for my Lords the Bishops Mr. Att. Gen. My Lord We pray for the King the Information may be read Sir Rob. Sawyer We define to be heard a word first Mr. Soll. Gen. We oppose your speaking any thing till the Information hath been read Sir Rob. Sawyer 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 say and therefore we move it now before there be any other proceedings in this matter Mr. Soll. Gen. It is irregular to move any thing yet pray let the Information be read first Mr. S. Pemberton If your Lordship please to spare us we will offer nothing but what is fit for us to do Sir Rob. Sawyer And now is our proper time for it Mr. Soll. Gen. Gentlemen You do know the way of Proceeding in such Cases better than so I am sure as for you Sir Robert Sawyer you have often oppos'd any such Motion as irregular and I hope the Case is not alter'd however you may be the course of the Court is the same Sir Rob. Sawyer With submission if your Lordship please to spare me a word that which I would move is to discharge my Lords the Bishops upon this Return and from their Commitment upon this Warrant Mr. Att. Gen. Surely these Gentlemen think to have a Liberty above all other People here is an Information which we pray my Lords the Bishops may hear read and plead to Mr. Soll. Gen. Certainly Sir Rob. Sawyer you would not have done thus half a year ago Sir Rob. Sawyer What would not I have done I move regularly with Submission to discharge my Lords the Bishops from their Commitment If they are not here legally Imprisoned now they are before your Lordships upon this Writ then you will give us leave to move for their Discharge before any thing else be said to them and that is it we have to say to demand the Judgment of the Court upon this Return whether we are legally Imprisoned 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 fear be too late Mr. Soll. Gen. These Gentlemen are very forward but certainly they mistake their time this is a Habeas Corpus that 's brought by the King and not by the Prisoners and therefore they are too soon till they see what the King has to say to them Mr. Att. Gen. Your Lordship cannot as yet be moved for your Judgment about the Legality of this Commitment because this Writ was granted upon our Motion who are of Councel for the King and upon this Writ they are brought here and what is it we desire for the King Certainly nothing but what is Regular we have here an Information for the King against my Lords and we desire they may plead to it Mr. S. Pemberton Good my Lord will you please to hear us a little to this Matter L. C. Iust. Brother Pemberton we will not refuse to hear you by no means when you speak in your proper time but it is not so now for the King is pleased by his Attorney and Sollicitor to Charge these Noble Persons my Lords the Bishops with an Information and the Kings Councel call to have that Information read but you will not permit it to be read Mr. S. Pemberton Pray my Lord spare us a word if we are not here as Prisoners regularly before your Lordship and are not brought in by the due Proâ—… 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 first place whether we are Legally here before you Mr. Soll. Gen. These Gentlemen will have their proper time for such a Motion hereafter Mr. Pollexfen No Mr. Soll. this is without all Question our only time for it we shall have no time afterwards Mr. Att. Gen. 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 Bishops plead then they may move what they will but before we make that Motion they cannot break in upon us with their Motion and with Submission to your Lordship whether my Lords the Bishops were duely Committed
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 Haraâ—…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
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 â—…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
Lord Devonshire that was an express Breach of the Peace tho' it was debated and disputed then so that I take it these Noble Lords cannot be charged with this Information because they do not come in by Legal Process and unless they can shew me any Case where a Peer did ever come in upon such a Commitment and answered to an Information upon that Commitment it must certainly be allowed not to be the Legal Course though if such a Precedent could be shewn that past sub Silentio without debate or solemn determination that would not do nor could bind the rest of the Peers If one man would lose a particular Benefit he has all the whole Body must not lose it and the benefit is not small of Time to make his Defence of Imparling of taking a Copy of the Indictment and preparing himself to plead as his Case will bear and indeed a common person has used to have these priviledges tho in some Cases of late they have taken the other Course and if a Capias went out which We say cannot go against a Lord and the Party were brought in he was to answer immediately Now my Lord I take it That the Priviledges of Peers is in all times the same with the Parliamentary Priviledge in Parliament time which reacheth to Informations as well as other Actions My Lord Cooke is express in this point in the 4. Instit. 25. If that Objection should hold good that every Information being Contra Pacem that should be a Breach of the Peace then as I said before priviledge will hold in no Information which is contrary to that and all our other Books 't is only such a Breach of the Peace as for which security of the Peace may be required But further that this is a Priviledge enjoyed by the Peers Spiritual as well as Temporal I suppose will not be denied for I think they will not question but that the Bishops and Abbots that were Lords of Parliament were Peers and we find in our Books when the Court has been moved for a Capias against an Abbot if he were a Mitred Abbot and sat in the Lords House it was always said that no such Process ought to go and so it is in the case of Bishops 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 priviledge but where it does appear upon Record that they are Peers the Court is to allow and take notice of their priviledge and there needs no such Writ Now that the Parliament priviledge and the priviledge of Peers as to their persons is the same appears by the form of the Writ in the Register fol. 287. Fitz Herb. Nat. Brev. 247. The Words of the Writ are these That if such a one be Sued at the Suit of another the Writ commands that a Peer out of Parliament time should have the same priviledge with those summoned by the KING to the Parliament and I know not any difference that can be put between them and it cannot be denied that all Informations whatsoever unless such as are for Breaches of the Peace for which Surety of the Peace may be required are under the Controul of the Parliament priviledge so that upon these grounds I do press that my Lords the Bishops may be discharged If there be any Information against us we are ready to enter our Appearance to answer it according to the course of the Court but if the Information be for no other thing than what is contained in the Warrant of Commitment then their persons ought to be priviledged from Commitment Mr. Pollixfen If your Lordship please to take it all together you will find it a case very well worth your consideration it being the case of all the Peerage of England Mr. Attor Gen. My Lord these Gentlemen have taken a great deal of Liberty and spent much of your time in making long Arguments and after all truly I do not know where to have them nor can understand what they would be at it seems they agree that for Treason Felony and Breach of the Peace a Peer may be Committed Ld. Ch. Iust. That is say they such a Breach of the Peace as for which Surety of the Peace may be required Mr. Attor Gen. Then all the Learning they have been pleased to favour us with is at an end for if here be any thing charged upon the Bishops for which Sureties of the Peace may be required then this is a good Commitment Ld. Ch. Iust. That they must agree upon their own Arguments Mr. Attor Gen. Can then any man in the world say that a Libel does not require Sureties of the Peace for we must now take it as it is here upon this Return How my Lords the Bishops will clear themselves of it is a Question for another time but the Warrant says they were Commited for Contriving Framing and Publishing a Seditious Libel against His Majesty and His Government Is there a greater Misdemeanour Or is there any thing on this side a Capital Crime that is a greater Offence Is there any thing that does so tread upon the Heels of a Capital Offence and comes so near the greatest of Crimes that can be Committed against the Government Not to enlarge at this time upon what the Consequences of such things may be Is there a greater Breach of the Peace than such Seditious Practices No doubt any man may be Committed for it and may be bound to find sureties for his good Behaviour Sir Robert Sawyer I say Sureties of the Peace not of the good Behaviour Mr. Soll. Gen. Pray my Lord would you consider where we are we are going towards France I think or some farther Country they have set us out to Sea and I do not see after this rate when we shall come to Land certainly these Gentlemen are mightily out of the way and would fain have us so too we are here upon a single Question as this Case stands before your Lordship upon the Return here is a Libel a Seditious Libel said to be contrived made and published against the KING and His Government by these Noble Lords the Prisoners this is the Accusation suppose this be true that is to be proved hereafter I hope they are innocent and will prove themselves so but suppose it to be true that they have made a seditious Libel against the King and His Government will any man say that this is not done Vi Armis This is a Libel with a witness nay two or three degrees more may carry it to High Treason and all the Informations that were exhibited by Sir Robert Sawyer when he was Attorney General and he exhibited a great many for Libels constantly these Words were in Vi Armis contra Pacem Bishop of Peterborough Was it so in your own Case Mr. Sollicitor Mr. Soll. Gen. Yes it was so
in my Case and you were one of them that prosecuted me for ought I know or if you did not prosecute me you preached against me or if you did not some of your Tribe did But so my Lord it was in many other Cases within time of Memory Sir Robert Sawyer has past a Complement upon me of my great Skill in Parliament matters but truly there needs no great Skill in matters where the Law is so plain a Peer they agree may be in Prison for Treason Felony or Breach of the Peace but that Breach of the Peace I say they is where the Law requires Sureties of the Peace but is there any Certainty where Sureties of the Peace shall be required and where not Then I would put this Cafe These Lords have contrived and published a Seditious Libel against the King and His Government and whether this be not such a Breach of the Peace as will require Sureties of the peace is the Question before you And it plainly appears to be so in Sir Baptist Hick's Case 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 stirs up to fighting which may occasion Blood-shed and I think there cannot be a greater Breach of the peace than for a man to come to the King's Face and publish a Libel against Him and yet according to their Doctrine this man shall go away and you shall not take him up but take a Subpoena against him and wait for the delay of all the ordinary process and they tell you another thing that a Capias does not lie upon an Information against the person of a Peer and that there is no precedent of any such thing but I would pray them to remember the Case of my Lord Lovelace about some three years ago for breaking a Foot-mans Head. It seems if a man libels the King in His own presence that is not so great a matter as a little Correction to an insolent 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 that precedent I do believe Sir Robert Sawyer and Mr. Finch won't contradict me this was in the first year of this King There was likewise my Lord of Pembrooke's Case who went to a disorderly House and there frighted some people and we moved the Court and had an Attachment against him for a misdemeanour and he was glad to Compound the thing or it had not ended so soon as it did and yet if a Lord comes to the King's Person and affronts Him to his very Face will not an Attachment lie against him for it Certainly it will. My Lord we have gone out of the way too much already and these Gentlemen will lead us farther but we hope your Lordships will reduce us to the methods of the Law Here is an Information which we desire may be read if they have any thing to plead to it their time for that will come after it is read if they think they have been illegally imprison'd it appears plainly upon this Return who they were that did Commit them here are a great many Noble Lords to Answer an Action of false imprisonment if these Lords think fit and may have these Learned Gentlemen that are very well able to advise them what they should do in it Sir Robert Sawyer We pray your Lordships Judgment whether the Cases put by Mr. Sollicitor are like our Case Mr. Soll. Gen. They are as like as Sir Robert Sawyer is to Mr. Attorney that was Sir Robert Sawyer Those Cases are of apparent Breaches of the peace so likewise was my Lord of Devonshire's Case but certainly that was not at all like this Mr. Finch With your Lordships Favour I would add but one Word and I would repeat nothing of what has been said all that I shall say is this There is a great deal of Difference between an Actual Breach of the Peace and that which in the bare Form of an Information is a Breach of the Peace by Construction of Law it being contra pacem Suppose it be laid that a man did vi armis speak Words will that make the Words a Breach of the peace Mr. Soll. Gen. It must be vi armis and certainly is a Breach of the peace Mr. Finch If a man write a Petition are the pen and ink that he uses the Arms Mr. Soll. Gen. My Lord I hope Mr. Finch remembers what I heard him say in Algernoon Sidney's Case scribere est agere Mr. Finch I think it is so Mr. Sollicitor but every Action is not a Breach of the peace Ld. Ch. Iust. We let my Brothers deliver their Opinions I will give you mine Mr. Iust. Allyb. The single Question now is Whether or no that which Mr. Sollicitor was pleased to name as the Crime and lay it to the Charge of my Lords the Bishops that is a seditious Libel be a Breach of the peace I do confess that there is little of Argument to be drawn from Forms of Indictments and I shall put no great stress upon the words vi â—…mit where the Fact will not come near it but if a Commitment may ensue as they seem to agree wherever surety of the peace may be required nothing seems more important to me than that surety of the peace should be required where there is any thing of Sedition in the Case and wherever there is a Seditions Act I cannot tell how to make any other Construction of it but that it is an Actual Breach of the peace that is my Opinion Mr. Iust. Powell I am of the same opinion in this point too as I was in the other point before It was a matter of great consequence I thought upon the former point but now it appears to me to be of far greater consequence than it did at first for here all the Great High and Noble Peers of England are concerned in it as to theâ—… priviledge Our Predecessors in this Court heretofore would not determine the priviledges of the Peers but left them to themselves to make what Judgment they pleased of them I think truly 't is a thing of that weight that it may be very fit for the Court to take time to consider of it and I declare for my own part I will not take upon me to deliver â—…y Opinion in a matter of this Consequence before I have Consulted all the Books that can give me any Light in the Case Mr. Iust. Allybone Brother Powell I am not determining limitting or cramping the priviledge of Peers but I am only considering whether or no a seditious Libel be a breach of the Peace 'T is agreed to be on all hands a breach of the Peace Is there any thing that will require Sureties of the Peace to be
cannot forbear observing in the first Place somewhat that these Gentlemen have offered at who are now inveighing against 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 purpose The Question is barely this Whether when a Man is brought in Custody into this Court and Charged with an Information he shall not by the Course of the Court be compelled to Plead presently Sir Robert Sawyer To Indictments for Treason and Felony he shall be Compelled to Plead presently but not to an Information for Misdemeanours Mr. Just. Powel It seems to me very hard he should Mr. Attor Gen. Sir there are many things that seem hard in Law but yet when all is done the Judges cannot alter the Law 't is a hard Case that a Man that is tryed for his Life for Treason or Felony cannot have a Copy of his Indictment cannot have Council cannot have his Witnesses sworn but this has been long practiced and the usage is grown to a Law and from time to time it hath been so taken for Law it cannot be altered without a new Law made as it hath been heretofore so it must be now till a greater Authority alter it and so as to the Case here at present if it were a new Case and it was the first Instance I must Confess I think I should not press it but if this be the Constant Practice of the Court and if these Gentlemen that now oppose it some of them Ministerially some of them Judicially have themselves Established this Practice they have no reason 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 these things by their procurement have done thus before surely without Offence we may pray the like may be gone now 'T is our duty on behalf of the King to desire that he may have Right done him as well as they on the behalf of my Lords the Bishops and for the usage to Cite Precedents were endless especially of late times and these Gentlemen know them all very well for they were some of them Parties to them themselves and we can do no more nor need than to put them in mind of their own doings whether it was so before their time or not it concerns them to make out and retract their own Errors but in our observation if ever this was pressed or insisted upon on the Kings behalf this Course has always been persued Sir Robert Sawyer For a Precedent my Lord there is the Case of my Lord Hollis where there was given time after time Mr. Soll. Gen. That was only time to argue the Plea to the Jurisdiction of the Court. Mr. Just. Powel Mr. Solli have you ever known it contested and upon Debate so Ruled in an Information for a Misdemeanour as this Case is Mr. Sol. Gen. If you please to ask Sir Samuel Astry he will inform you how the Course has been L. C. Iust. What say you Sir Samuel Astry Sir Sam. Astry My Lord when I came into this Place there was an Ancient Gentleman that had been long a Clerk in the Office. L. C. Iust. How many years is it since you came into this Office Sir Sam. Astry About a dozen years I think my Lord and he sat in this place where Mr. Harcourt does now he was always accounted a Loyal Honest and Intelligent Man that is Mr. Waterhouse who is now alive and when I came into my Office I took my Instructions in a great measure from him and asked him what the Course of the Court was in such Cases which I my self did not understand for tho' I had been an Attorney Twenty years yet it was on the other side the Civil side and tho' I knew some things of my own knowledge yet I did not so well know the whole practice of the Court and particularly I asked him what was the Course of the Court in this Case that is now in Question and he told me that in all his time and experience if a Man appears upon a Recognizance or was a Person in Custody or appeared in propria persona as a person Priviledged he ought to Plead at the first instance and according to that practice when Sir Robert Sawyer was Attorney-General it was the constant practice and I am sure he knows it is no new thing Sir Rob. Saw. But upon what Informations Sir Samuel Astry were they Informations upon Misdemeanors Sir Sam. Astry Yes several Sir Rob. Saw. But was there not Process taken out first to call the Party in Sir Sam. Astry Yes where Process was never taken out Mr. Att. Gen. For how long time is this that you speak of your own knowledge Sir Samuel Sir Sam. Astry 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 Astry one Question Was the usual Process of Subpoena first taken out for Mr. Serjeant Pemberton says it was do you find any Warrant for such a difference as that Mr. Serj. Pemb. Do you find any such Case as this is Mr. Sol. Gen. Nay pray Mr. Serjeant give us your favour and let us ask our Questions according to your own Doctrine How do you find the Practice to have been as to that distinction they have made Sir Sam. Astry Sir I would be very loath to inlarge the Precedents of the Crown Office furthar than the truth is I tell you whence I took my Instructions from Mr. Waterhouse who was an Ancient Clerk in the Office he has been in that Office Sixty years and the Instructions I took from him were that this was the Practice all his time and it has been asserted all my time it has been often contested I confess and Mr. Pollixfen has always opposed it and moved against it but it has been always ruled against him I know it was against his Judgment but the Court always over-ruled it Sir Rob. Saw. Sir Samuel Astry can you give any one Precedent before you came into this Office Sir Sam. Astry Sir I can go no farther than this that I have told you what Information I received from him Sir Rob. Saw. What is all this but a Certificate from Mr. Waterhouse L. C. Iust. We can be informed no otherways than by Certificate from the old Clerks of the Office. Mr. Serj. Pemb. Alas he is a Child and not fit to do any thing Mr. Pollixf We all know Mr. Waterhouse very well he is a very weak Man and always was so and there is no depending upon any thing that he says Mr. Sol. Gen. Pray my Lord will you hear us a little for the King. The Bishop of Peterborough whispering with Sir Rob. Sawyer Mr. Sollicitor said to him My Lord you had
go a great way with the Court. Sir Ro. Sawyer Such a practice as this has been always very rare in Informations for Misdemeanours and they bring you nothing of any President older then Sir Samuel Astry's time Mr. Finch Pray My Lord give me leave to very the Question I do not now make it a Question whether your Lordships should grant My Lords the Bishops an Imparlance but whether you would think fit to look into the Course of the Court before that time that Sir Samuel Astry speakâ—… of and take time to consider and search into Presidents Mr. I. Allybone Do you Mr. Finch give us any one Reason or President that may make us doubt whether this be the Course of the Court or no à And you could not but be aware of this before and therefore should have come prepared to make out your Objection Mr. Finch Mr. Pollixfen and the rest of the Practicers in My Lord Hales's time will tell you that the Course was otherwise in his time Sir Samuel Astry indeed tells you it has been so since his time but this was one of the Points it seems that he was ignorant of which made him inquire of Mr. Waterhouse so doubtful was this Practice Sir Samuel Astry I was an Attender upon this Court before I came into this Office but it was in another place on the other side of the Court and therefore was not concerned so much to know what was the Course on this side till I came into this Office. Mr. Sol. Gen. These Gentlemen differ among themselves 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 to Sir Sam. Astry Here are two Clerks that sit by me that have been a long time in the Office Mr. Harcourt my Secondary and the Clerk of the Rules I pray they may be asked their knowledge of this matter Mr. Soll. Gen. Certainly these Gentlemen think they have a Priviledge above all other people that they must not be subject to the same Rules as others are we on our 〈◊〉 have taken all the Methods that we could to make this matter manifest and what is it that these Gentlemen now propose They pray you to take time to consider but have they used the right means of creating a jealousie or suspicion in the Court that the Course is otherwise they can give no instance of it and all they say is 't is a Negative that this is not the Course of the Court but the Imparlance that they beg is in the Affirmative surely that they can find proof of if it be so As for my Lord Holly's Case that is with us and not against us let Mr. Pollixfen shew that ever any one of the Men that were brought into Court in Custody either had time to Plead or an Imparlance L. C. I. Sir Samuel Astry says he has given you his Opinion and here are two other Clerks of the Office that he refers himself to are you willing that they should be asked Mr. Ser. Pemberton Yes my Lord with all our hearts L. C. I. Mr. Harcourt How long have you been a Clerk in the Crown-Office Mr. Harcourt About seventeen or eighteen years my Lord. L. C. I. How long have you known the practice of the Court in this matter and what is it Mr. Harcourt I cannot charge my self so with Particulars from the time of my coming into the Office but for these ten or twelve years past I remember it has been as the King's Council pressed and as Sir Samuel Astry has declared L. C. I. What say you Mr. Sillyard How long have you known the Crown-Office Mr. Sillyard I have been a Clerk here about thirty years L. C. I. Well and how has the practice been all your time Mr. Sillyard I have not sat here as Clerk of the Rules but a little while but since I have sat here I have always observed it to be the Practice that one that comes in Custody should Plead immediately it was a thing heretofore that did not so often happen asit hath done here of late therefore I cannot so well speak to it but it hath fallen out frequently within some years last past and that hath been the constant Course Sir. Samuel Astry When you first came to be Attorney General Sir Robert Sawyer I am sure it was so Mr. Att. Gen. Pray let me ask you Mr. Sillyard you say you have known the Office thirty years When you first came to the Office were Informatitions as frequent as they are now and have been of late Mr. Sol. Gen. It was so in the Case of Mr. Hampden when you were Attorney General Sir Robert Sawyer he was forced to Plead immediately to an Indictment for a Crime that perhaps you will say was near upon Treason Sir Rob. Sawyer Yes truly it wanted but one Witness that was all Mr. Sol. Gen. But yet the Indictment was only for a Misdemeanour and there we strugled and debated the Matter but were forced to give it over because the course of the Court was against us so it has been by the unquestionable Testimony of Sir Samuel Astry for these twelve years last past and in those twelve years we have had many changes perhaps there may have been twelve Chief Justices and they have all affirmed it and if I then make it out that in all these 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 desire to know whether that were the Ancient Course Mr. Sollicitor Mr. Sol. Gen. They that make the Objection ought to prove it but I will name Sir Robert Sawyer another Case and that is the Case of Sir Samuel Barnardiston which was the Case of a Libel too he was forced to plead immediately and it cost him 10000 l. Fine L. C. I. Well Gentlemen have you done on either side Mr. S. Pemberton If your Lordship will please to give us time till to morrow Morning we will come hither by Rule of Court and bring you some Certificates and Assidavits or else some Precedents that we hope will satisfie your Lordship in this Matter L. C. I. No Brother we cannot do that the Question is what the Course of the Court is we have had an Account of that from Sir Samuel Astry for twelve years of his own Knowledge and from Mr. Waterhouse by him for sixty years but for Mr. Waterhouse they except against him and say he was a person that was always Lazy and did not foâ—…well understand his business and now is superannuated that is said but is but â—…is dictum perhaps it may be so perhaps not and they have offered to Examine Mr. Ince about some Opinion that he has had from this Mr. Waterhouse it may be he may have asked him some Question that may lead to it and he may have given
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 hâ—…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
Case nor on the other side would I be wanting to Advise and do for my Client what I am able and lawfully may we have laboured all we could to get time for my Lords the Bishops to Imparle to this Information and we have been the more earnest in it because it concerns us who attends this Bar to take what Care we can that the Course of the Court may be observed but as for this Matter we suppose this Practice of the Court is not in Law a good Practice Now what way in the World has any man to bring this so in question as to have a Judicial Resolution of the Court about it but by such a Plea We take it that it is usual and legal for us to have an Imparlance and a man would Imparle but the Court upon Motion refused to give him an Imparlance Is it not think you very fit for the party to have this Judicially 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 should be wrong but truly I cannot see how the Court can refuse the Plea for if so be a Plea be pleaded they have their liberty to Answer it on the other side by a Replication or else 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 sure will take no notice what is the Matter of the Plea till the other party have either replied or demurred the same thing may happen in any other Plea that is pleaded and the party will-be without Remedy upon a writ of Error because the Plea being Rejected there does nothing appear upon Record truly for the Court to reject and refuse this Plea would be as hard as the refusing of the Imparlance and we know no way we have to help our selves Mr. Sol. Gen. You might have entered your Suggestion for an Imparlance upon the Roll and then it would have appeared upon Record and if the Court had unjustly denied it you you would have had the benefit of that Suggestion elsewhere 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 't is Fencing with the Court and that the Court won't suffer it is only to delay and if we should demur then there must be time for Arguing and what is the Question after all but whether you would be of the same Opinion to Morrow that you are to Day Sir Rob. Sawyer I would put Mr. Sollicitor in mind of Fitz Harris's Case which he knows very well he put it in a Plea and we for the King desired it might not be received but the Court gave him time to put it into Form and I was fain to joyn in Demurrer presently and so may these Gentlemen do if they please Mr. Soll. Gen. Yes Sir Robert Sawyer I do know the Case of Fitz Harris very well I was assigned of Councel by the Court for him we were four of us and there was a Plea put in but no such Plea as this there was an Indictment of High Treason against him in which Case it is agreed on all hands that the party must answer presently but because he suggested here at the Bar says he I have Matter to plead to the Jurisdiction of the Court and shewed what it was I was Impeached before the Lords in Parliament for Treason for the same Matter of which I am here Accused The Court did give him time to put this into Form and we were assigned 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 same Treason for which we were Impeached in Parliament and that that Impeachment was still depending and so we rested in the Judgment of the Court whether we should be put to Answer it here this was a Plea that carried something of weight in it and not such a trifling one as this It is true Sir Robert Sawyer who was then Attorney General did press the Court to over-rule it immediately but it being a matter of some Importance the Court would not do that but had it argued solemnly by Council on both sides and at last there was the Opinion of three Judges against one that the Plea was no good Plea But what is that to such a trifling Plea as this Mr. Att. Gen. Pray my Lord favour me a few words about that Case of Mr. Fitz Harris it is true there was a Plea put in and it is true also that that which brought that Plea to be argued was the Demurrer that was put in by Sir Robert Sawyer who was so zealous and hasty in the matter that because the Court did not presently over-rule the Plea as he desired he immediately Demurred before the rest of the King's Council could offer at any thing about it and thereupon it was put to the Judgment of the Court and no doubt must be argued and spoke to on both sides but where Pleas are really in abuse of the Court the Court never gives any Countenance to them Nay truly I have known another Course taken I am unwilling to mention a Case that hapned much about that time too in this Court because of that regard I have to my Lords the Bishops but Sir Robert Sawyer remembers it very well I am sure it was the Case of one Whitaker who for a thing like this putting in a trifling Plea not only had his Plea rejected but something else was ordered I could shew the Precedent but that I am more tender than to press it in this Case because there the Court ordered an Attachment to go against him but I will put these Gentlemen in mind of another Case and that is the Case of a Peer too it is the Case of my Lord Delameere which they cannot but remember it being in the highest Case a Case of Treason when my Lord Delameere was Arraigned and to be Tryed for High Treason 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 reject it and the Court did reject it as we hope the Court will do this and would never so far delay Justice as to admit of a Plea that carried no Colour in it and there was no Demurrer put into the Plea but it was absolutely refused My Lord in this Case we have had the Judgment of the Court already and therefore we must now desire that this Plea may be rejected Mr. Soll. Gen. My Lord we have now gone out of the way far enough already it is time for us to return and bring the Case into its due methods We pray
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 coâ—…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. proâ—…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
of May the King's Order of Council for the Reading the Declaration Mr. Gantlâ—… 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 1688. and so reads the Order of Council Mr. Sol. Gen. My Lord we have one thing that is mentioned in the Information that this Declaration was Printed if that be denied we will call Henry Hills his Majesties Printer because we would prove all our Information as it is laid Lord Ch. Iust. You must do so Mr. Sollicitor you must prove the whole Declaration Mr. Sol. Gen. Cryer call Henry Hills He was called but did not presently appear Mr. Sol. Gen. Call Mr. Bridgman though these Declarations prove themselves we have them here Printed but Swear Mr. Bridgeman Mr. Bridgeman Sworn Mr. Sol. Gen. Shew Mr. Bridgeman the two Declarations Lord Ch. Iust. What do you ask him Mr. Sol. 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 weâ—…l ask you particularly you know the Declaration that was made the 4th of April in the third Year of the King. was it Printed Mr. Bridgeman Yes it was Printed by the King's Order Mr. Sol. Gen. Was that of the 27th of April in the 4th Year of the King Printed Mr. Bridgman Yes they were both Printed by the King's Order Mr. At. Gen. Then the next thing in course is the Bishops Paper Sir Rob. Sawyer Mr. Bridgeman pray let me ask you one Question Did you ever compare the Print with that under Seal Mr. Bridgeman I did not compare them Sir Robert Sawyer Mr. Sol. Gen. He does Swear they were Printed by the King's Order Sir Robert Sawyer Good Mr. Sollicitor give me leave to ask him a Question Can you Swear then that they are the same Mr. Bridgman I was not asked that Question Sir. Mr. Sol. Gen. Come then Mr. Bridgeman I 'le ask you Do you believe they are the same Sir Rob. Sawyer Is that an Answer to my Question Mr. Sol. Gen. We must ask him Questions as well as you Sir Robert what say you Do you believe it to be the same Lord Ch. Iust. You hear Mr. Sollicitors Question answer it Mr. Bridgeman Mr. Bridgeman Yes my Lord I do believe it Lord Ch. Iust. Well that 's enough Mr. At. Gen. If there were occasion we have them here Compared and they are the same Sir Rob. Sawyer With Submission my Lord in all these Cases if they will prove any Fact that is laid in an Information they must prove it by those that know it of their own Knowledge Do you know it to be the same Mr. Sol. Gen. That 's very well Sir. Sir Rob. Sâ—…yer Ay so it is Mr. Sollicitor It is a wonderful thing my Lord that we cannot be permitted to ask a Question Do you know it to be the same Mr. Bridgeman I ask you again Mr. Bridgeman I have not compared them I tell you Sir Robert Sawyer Sir Rob. Sawyer Then that is no Proof Lord Ch. Iust. Would you have a Man Swear above his Belief he tells you he believes it is the same Sir Rob. Sawyer Is that Proof of an Information Lord Ch. Iust. Well you 'l have your time to make your Objections by and by Mr. At. Gen. Then Swear Sir Iohn Nicholas Sir Iohn Nicholas I am Sworn already Mr. At. Gen. I see you have a Paper in your Hand Sir Iohn Nicholas pray who had you that Paper from Sir Iohn Nicholas I will give you an Account of it as well as I can Mr. Pollixfen Before they go to another thing my Lord we think they have failed in their Proof of their Information about the Printing this Declaration Mr. At. Gen. Where is Mr. Hills Mr. Iust. Allyb. They have laid That it was printed by the King's Order and it is such a matter Mr. Sollicitor as you may clear if you will sure Mr. Sol. Gen. There is Mr. Hills now I see him L. C. Iust. I was going to give Order that you should send to the Printing-house for him Mr. Iust. Allyb. They may put this matter out of doubt too if they will on the other side for I see they have a Copy in Print and there 's the Original they may compare them if they please Mr. Sol. Gen. I am very glad to hear such a strong Objection Sir Rob. Sawyer We would clear the way for you Mr. Sollicitor Mr. Sol. Gen. No you put Straws in our way we shall be able enough to clear it without your help Swear Mr. Hills and young Mr. Graham here Hills and Graham sworn Mr. Sol. Gen. Mr. Graham did you compare any of these Printed Declarations with the Original Graham Yes I did compare some of them and did make Amendments as I went along Mr. Sol. Gen. 〈◊〉 one that you have compar'd with the Original Mr. Att. Gen. Hills is here himself we 'll ask him Are you sworn Sir Cryer He is sworn Mr. Att. Gen. Pray were the King's Declarations for Liberty of Conscience printed both of them Hills Ay an 't please you Sir. Mr. Att. Gen. You printed them I think Hills Yes I did print them Sir Rob. Sawyer Mr. Hills you say they were printed Upon your Oath after they were printed did you examin them with the Original under Seal Hills 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 sworn Mr. Sol. Gen. Do you hear Williams Do you know that the King's Declaration for Liberty of Conscience two of them one of the 4th of April and the other of the 27th 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. Gen. Where had you the Copy who had you it from Williams I had it from Mr. Hills Sir Rob. Sawyer Mr. Williams did you examin them with the Original under the Great Seal Williams The First Declaration I did Sir Rob. Sawyer The Second Declaration is the main Williams The Second was Compos'd by the First Sir Rob. Sawyer Why is there no more in the Second Declaration than there was in the First 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. Sol. Gen. Can any one tell who did examin it under the Great Seal Mr. Finch Pray what did you examin it by Mr. Williams Williams By a Copy that I receiv'd from Mr. Hills Mr. Att. Gen. Then we will go on and we desire Sir Iohn Nicholas to give an account where he had that Paper that he has in his hand Mr. Finch My Lord it does not appear that
the Copy that was printed is the true Copy of the Declaration Mr. Att. Gen. He says he had it from Mr. Hills Mr. Finch Pray Mr. Hills what did you examin that Copy by which you gave to Mr. Williams Hills I had the Copy from Mr. Bridgeman Mr. Finch Did you examin it with the Original under the Great Seal Hills I did not examin it I had it from Mr. Bridgeman Mr. Finch What was it under Seal Mr. Bridgeman It was the Original signed by the King. Mr. Finch But I ask you was it under Seal Mr. Bridgeman Not under the Great Seal it was not it was the very Declaration the King signed Sir Rob. Sawyer But it ought to be compar'd with the Original or it is no good proof that it is the same Mr. Sol. Gen. Sir Robert Sawyer you understand Collation better sure you should be asham'd of such a weak Objection as this Williams We never bring our Proof to the Great Seal Sir Rob. Sawyer But if you will have it Proof at Law you must have it compared with the Original Mr. Sol. Gen. Do you think there is any great stress to be laid upon that we only say it was printed Sir Rob. Sawyer But you have made it part of your Information and therefore you must prove it L. C. Iust. I think there 's proof enough of that there need no such nicety Mr. Pollixfen Well my Lord we must submit let them go on we won't stand upon this Mr. Att. Gen. Then pray let me go on Where had you that Paper Sir Iohn Nicholas Sir Iohn Nicholas I had this Paper from the King's Hand L. C. Iust. Put it in Mr. Sol. Gen. Who had you it from do you say Sir I. Nich. From the King. Mr. Sol. Gen. About what time had you it from the King Sir Sir I. Nich. I had it twice from the King. Mr. Sol. Gen. When was the first time Sir Sir I. Nich. The first time was in Council the 8th of this month Mr. Sol. Gen. What became of it afterwards Sir I. Nich. The King had it from me the 12th and the 13th I had it from the King again Mr. Sol. Gen. Pray deliver it this way into the Court We will now go on and prove the Bishops hands to it This is the Paper upon which we bring this Information Gentlemen it is all the Hand-writing of my Lord Archbishop and signed by Him and the rest of the Bishops Mr. Att. Gen. I suppose my Lords the Bishops will not put us to prove it they will own their Hands L. C. Iust. Yes Mr. Attorney their Council will put you to prove it I perceive your best way is to ask nothing of them Mr. Att. Gen. My Lord we will desire nothing of them we will go on to our Proofs Call Sir Thomas Exton Sir Richard Raynes Mr. Brooks Mr. Recorder and Mr. William Middleton Sir Thomas Exton appeared and was sworn L. C. Iust. What do you ask Sir Thomas Exton Mr. Att. Gen. Pray convey that Paper to Sir Thomas Exton Mr. Sol. Gen. Shew that Paper to Sir Thomas Exton Sir Thomas I would ask you one question Do you know the Hand-writing of my Lord Archbishop of Canterbury Sir Thomas Exton I 'll give your Lordship what account I can Mr. Sol. Gen. Pray Sir answer my question Do you know his Hand-writing Sir Tho. Exton I never saw 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 Tho. Exton I do believe this may be of his Hand-writing Mr. Sol. Gen. Do you believe all the Body of it to be of his Hand-writing or only part of it Sir Tho. Exton I must believe it to be so for I have seen some of his Hand-writing and this is very like it Mr. Sol. Gen. What say you to the Name do you believe it to be his Hand-writing Sir Tho. Exton Yes I do Mr. Sol. Gen. Do you know any of the rest of the Names that are upon that Paper Sir Tho. Exton No I do not L. C. Iust. Do you for the Defendants ask Sir Tho. Exton any Question Sir Rob. Sawyer No my Lord. Mr. Att. Gen. Then call Sir Richard Raynes Sir Tho. Exton My Lord Sir Richard Raynes has been sick this month and has not been at the Commons Mr. Sol. Gen. We have no need of him Call Mr. Brooks Mr. Brooks sworn Mr. Att. Gen. Pray shew Mr. Brooks that Paper Mr. Sol. Gen. Mr. Brooks I ask you this Question Do you know my Lord Archbishop's Hand-writing Mr. Brooks Yes my Lord. Mr. Att. Gen. Pray look upon that Paper do you take that to be my Lord Archbishop's Hand Mr. Brooks Yes my Lord I do believe it to be my Lord Archbishop's Hand Mr. Att. Gen. What say you to the whole Body of the Paper Mr. Brooks I do believe it to be his Hand Mr. Att. Gen. What do you say to his Name there Mr. Brooks I do believe this Name is his Hand-writing Mr. Sol. Gen. Call Mr. William Middleton Mr. Att. Gen. Pray Mr. Brooks don't go away but look upon the Names of the Bishop of St. Asaph and my Lord of Ely. Mr. Sol. Gen. Do you know my Lord Bishop of St. Asaph's Hand-writing Mr. Brooks I have seen my Lord Archbishop of Canterbury and the Bishop of St. Asaph's Hand-writing and I 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 so well acquainted with my Lord of Ely's Writing Mr. Sol. Gen. But have you seen his Writing Mr. Brooks Yes I have 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 see him write Mr. Brooks No Sir. Mr. Sol. Gen. But he has seen his Writing Sir Geo. Treby How do you know that it was his Hand-writing that you saw Mr. Brooks Because he own'd it L. C. Iust. How do you know it do you say Mr. Brooks I know it I say because I have seen a Letter that he writ to another person which he afterwards own'd L. C. Iust. What did he own Mr. Brooks Mr. Brooks That he wrote a Letter to another person which I saw 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 Bishop of Oxford Sir Geo. Treby Can you tell what was in that Letter Mr. Att. Gen. What is that to this Question You ask him how he knows his Hand-writing and says he I did not see him write but I have seen a Letter of his to the Lord Bishop of Oxford L. C. Iust. And he does say my Lord of Ely own'd it to be his Hand that is there Mr. Sol. Gen. No my Lord that 's a
believe it or do you not Mr. Middleton It is like it that 's all I can say 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 see him write for I would clear this matter beyond exception Mr. Middleton I have seen his Lordship write but I never stood by him so near as to see 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 Chichester's Hand-writing Mr. Middleton Sir I am acquainted with none of their Hands but with my Lord of Canterbury's and my Lord of Ely's Mr. Sol. Gen. Do you know my Lord of Peterburgh's Hand-writing Mr. Middleton I had my Lord of Peterburgh's Writing two years ago for some money but I cannot say this is his Mr. Sol. Gen. Do you believe it to be his Mr. Middleton I never took notice of it so much as to say I believe it to be like it I never saw it but once Mr. Sol. Gen. Do you know any other of the Names there What say you to the Bishop of Bristol's Name Mr. Middleton I saw once my Lord of Bristol's Hand-writing Mr. Sol. Gen. What say you to that Writing there Mr. Middleton It is like it Mr. Sol. Gen. Do you believe it to be his or no Mr. Middleton Truly that I cannot say for I never saw it but once Lord Ch. Iust. You never saw him Write did you Mr. Middleton No my Lord I never did Mr. Sol. Gen. Then we will call Sir Thomas Pinfold and Mr. Clavel Sir Thomas Pinfold is there Swear him Sir Thomas Pinfold Sworn Mr. Sol. Gen. Sir Thomas Pinfold do you know my Lord Bishop of Peterburgh's Hand-writing Sir Thomas Pinfold Truly not very well I never saw but one Letter from him in my Life shew me his Hand and I will tell you Which was done Mr. Sol. Gen. Well Sir what say you to it Sir Tho. Pinfold Then upon my Oath I say I cannot well tell upon my own Knowledge that it is his Hand Mr. Sol. Gen. I ask you do you believe it to be his Hand Sir Tho. Pinfold Sir upon the Oath that I have taken I will answer you that upon this account that I have heard there was a Paper delivered by my Lords the Bishops to the King and this Paper that you offer me I suppose to be the same upon that Score I do believe it but upon any other Score I cannot tell what to say Mr. Sol. Gen I ask you upon your Oath Sir do you believe it is his Hand-writing or no Sir Tho. Pinfold Sir I have answered you already that upon my own Knowledge I cannot say it is his Hand-writing but because I have heard of such a Paper I do believe it may be his Lord Ch. Iust. Did you ever see my Lord Bishop write Sir Tho. Pinfold I have been in his Chamber several times when he has been Writing but I had more Manners than to look upon what he Writ Lord Ch. Iust. Did you never see him write his Name Sir Tho. Pinfold I do not know that I ever saw him write his Name but I have seen him Writing I say and so my Lord Bishop may have seen me Writing but I believe he does not know my Hand Mr. Sol. Gen. You have seen him write you say Sir Tho. Pinfold I tell you Mr. Sollicitor I have been in his Chamber when he has been Writing but I had more Manners than to look over him Mr. Iust. Powel Then you did never see any of that Writing Sir Tho. Pinfold I cannot say I did my Lord. Mr. Att. Gen. Pray did you never see any of his Writing but that Letter you speak of Sir Tho. Pinfold No not that I remember Mr. Iust. Powel Mr. Sollicitor you must call other Witnesses for this does not prove any thing Mr. At. Gen. We will go on Swear Mr. Clavel Mr. Clavel Sworn Mr Sol. Gen. Do you know my Lord Bishop of Peterburgh's Hand-writing or no Mr. Clavel I have seen it many times Mr. Sol. Gen. Do you know it when you see 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 rest of the Hands there do you know any of the other Names Mr. Clavel No I do not Mr. Att. Gen. Have you ever seen any of their Writing Mr. Clavell It is probable I may have seen some but do not now remember it Mr. Sol. Gen. I think you are a Bookseller Mr. Clavell Mr. Clavell Yes I am so Sir. Mr. Sol. Gen. I suppose you have had some Dealings with them in the way of your Trade Did you never see any of their Writing Mr. Clavell I have seen the Names of some of them but it is so long since that I cannot Remember L. C. I. Did you ever see my Lord of Peterborough Write Mr. Clavell I cannot tell whether ever I saw him Write his Name or no but I have had several Letters from my Lord of Peterborough Mr. Sol. Gen. Is that his Hand-writing Mr. Clavell I cannot say it is I believe it is Mr. Sol. Gen. You have had Letters from him you say Mr. Clavell Yes and it seems to be like his Hand Mr. Pollixfen But you never saw him Write his Hand you say Mr. Clavell I cannot say I ever did Mr. Sol. Gen. These Letters that you have received from my Lord of Peterborough did he own them Do you think they were Counterfeit or of his own Hand-writing Mr. Clavell I suppose he has owned them Sir. Mr. I. Powell But you must Answer directly Sir Did he own them Mr. Sol. Gen. What did those Letters concern were they about Books or what Mr. Clavell They were sometimes about one business sometimes about another Mr. Sol. Gen. Was the subject-matter of any of these Letters about Mony and was it paid you Did you receive or did you give any account of it Mr. Clavell They were about several Businesses L. C. I. Look you Mr. Clavell you must give us as particular account as you can Mr. Sol. Gen. Pray Sir upon those Letters were the things done that those Letters required Mr. Clavell Yes they were Mr. Sol. Gen. Did you do your part Mr. Clavell Yes I did Mr. Sol. Gen. Now I would ask you Do you believe that Name of my Lord Bishop of Peterborough to be the Hand-writing of my Lord Bishop Mr. Clavell I believe it is Mr. I. Powell Do you know that those Letters that you say you received from my Lord were of my Lords own Hand-writing Do you Swear that Mr. Clavell My Lord I cannot Swear that Mr. Finch Do you know whether the Letters
Whitehall Mr. Soll. Gen. What say you to the Bishop of St. Asaph Did he own it Mr. Blathwayt Yes All my Lords the Bishops did own it Mr. Soll. Gen. Name them particularly what say you the Bishop of Ely Mr. Blathwayt In the same manner my Lord. Mr. Soll. Gen. The Bishop of Chichester Mr. Blathwayt In the same manner Mr. Soll. Gen. The Bishop of Bath and Wells Mr. Blathwayt Yes my Lord. Mr. Soll. Gen. The Bishop of Peterborough Mr. Blathwayt Yes my Lord. Mr. Soll. Gen. And the Bishop of Bristol Mr. Blathwayt Yes my Lord. Mr. Soll. Gen. So We have proved they all owned it Mr. Iust. Holloway Could not this have been done at first and saved all this trouble Sir Rob. Sawyer Have you done with Mr. Blathwayt Mr. Attorney that we may ask him some questions Mr. Att. Gen. Ask him what you will. Mr. Ser. Pemb. Pray Mr. Blathwayt upon what occasion did they own it you are Sworn to tell the whole truth pray tell all your Knowledge and the whole Confession that they made Mr. Blathwayt My Lord I am called here by a Subpoena to answer on behalf of the King my Lord I am ready to doe my duty and I beg of your Lordship that you would please to tell me what is my duty for whatsoever I shall answer I shall speak the truth in Mr. Ser. Pemb. There is nothing desired but that you would speak the truth Mr. Blathwayt My Lord I am easily guided by your Lordship what I ought to answer to L. C. Iust. What is it you ask him Brother Pemberton Mr. Ser. Pemb. We desire Mr. Blathwayt to tell the whole discourse that passed at the Council when he says my Lords the Bishops owned this Paper Mr. Soll. Gen. That 's a very pretty thing indeed L. C. Iust. Look you Mr. Blathwayt you must answer them what they ask you unless it be an ensnaring Question and that the Court will take care of Mr. Blathwayt If your Lordship please to ask me any Question I shall readily answer it L. C. Iust. You must answer them Mr. Ser. Pemb. We ask you upon what occasion they came to own their Hands What discourse was made to them and what they answered Mr. Blathwayt My Lord I beg your Lordship's directions L. C. Iust. Come tell it Sir. Mr. Blathwayt My Lord the occasion was this This Paper was read in Council and I had the honour to read it before the King and it having been read before his Grace the Arch-Bishop and my Lords the Bishops they were asked whethey did own that Paper and my Lord they did own it Sir Rob. Sawyer Mr. Blathwayt was that the first time that my Lords the Bishops came in Mr. Blathwayt Sir I was not asked that Question L. C. Iust. What would you have Sir Robert Sawyer Sir Robert Sawyer We would have an account what passed at the Council L. C. Iust. Would you have all the Discourse betwixt the Council and my Lords the Bishops Mr. Ser. Pemb. All that relates to their Accusation my Lord their whole Confession and what was said to them Mr. Att. Gen. Do you think Mr. Serjcant that when we call a Witness you are at liberty to examine him to every impertinent thing Mr. Soll. Gen. My Lord we desire that they may only ask reasonable and proper Questions Mr. Ser. Pemb. Mr. Sollicitour he is sworn to answer and tell the whole truth and that 's all we ask of him Sir Rob. Sawyer Sir I will ask you a plain Question upon your Oath did not my Lord Arch-Bishop and the rest of my Lords the Bishops at first resuse to own it or to answer whether it were their Hands or not Mr. Soll. Gen. That is not a fair Question Sir Robert Sawyer 't is a leading Question Mr. Ser. Pemb. Then I ask you in short what did they refuse I am sure that is a fair Question for God forbid that any should hinder the King's Evidence from telling truth Sir Rob. Sawyer And God forbid that half Evidence should condemn any man. L. C. Iust. God forbid the Truth should be concealed any way Mr. Ser. Pemb. Pray Sir when they were first asked whether that was their Hands or not what answer did they give Mr. Blathwayt Sir I have begged the favour of my Lords the Judges to tell me what I am to answer and what Questions are proper for me to answer to L. Ch. Iust. You must answer any Questions that are not ensnaring Questions Sir Robert Sawyer Mr. Blathwayt you are upon your Oath to testifie the Truth Mr. Blathwayt Sir I am not acquainted with the Methods of Law I desire my Lords the Judges would instruct me Mr. Iust. Ailibone Answer to the Question that they ask you Ld. Ch. Iust. We observe what they ask you we 'll take care that they ask you nothing but what they should Mr. Blathwayt I desire the Question may be repeated Mr. S. Pemberton When they were first asked if it were their Hands what answer did they give the King Mr. Blathwayt His Grace the Archbishop and my Lords the Bishops at first did not immediately answer whether the Paper were theirs or no. Mr. S. Peinberton What did they say Mr. Blathwayt They said they did humbly hope if they were put to answer no advantage should be taken against them Mr. S. Pemberton What did they say farther at that time concerning His Majesties pleasure Mr. Soll. Gen. That 's a leading Question Mr. S. Pemberton you cannot leave your way of leading Witnesses Mr. S. Pemberton It is a very strange thing if we ask a question that 's general that 's excepted to if we ask any question in particular then they find fault with us that it is a leading Question so that we can never ask a question that will please them Pray Mr. Blathwayt what did they say concerning the King's pleasure whether they would answer if the King commanded them Mr. S. Trinder How can it be material what they said L. Cn. Iust. It is material that it should be asked and that it should be answered Mr. S. Levinz You are to tell the whole Truth Sir Pray tell us what did my Lords the Bishops say about submitting to the King's pleasure Mr. Soll. Gen. What is that to the purpose Mr. Pollixfen Mr. Sollicitour his Oath is to tell the truth and the whole truth and therefore he must answer my question Mr. S. Pemberton You are mighty loth Mr. Sollicitour to let us hear the truth I would not willingly lead him in any thing and I cannot see that this is any leading question unless his Oath be against Law which says he is to tell the whole truth Mr. At. Gen. My Lord I do beg your Lordship's favour of a word in this thing It is certain if they ask any thing that shall take off the Evidence that was first given that it is not true I cannot oppose it but if they ask questions onely to conflame and to possess people
with foolish notions and strange conceits that is not to the fact that we are now trying Sr. Rob. Sawyer 'T is onely to have the truth out that we doe it Mr. S. Pemberton There is no body here that will be enflamed Mr. Attorney I have asked a fair question the Court has ruled it so Mr. Blathwayt I shall readily answer any question that the Court thinks fit Mr. S. Pemberton Sir by the Oath you have taken you are to tell the whole truth L. Ch. Iust. Is he to tell you all that was done at the Council board that day Mr. S. Pemberton No my Lord onely what passed there about my Lords the Bishops Confession the whole of that matter Mr. Blathwayt There has been so much said between the asking of the question and this time that I desire it may be repeated that I may know what to answer to Mr. S. Pemberton I ask you in short Sir What did my Lords the Bishops say at the time of their appearing in Council concerning the King's pleasure whether they should answer or not Mr. Blathwayt The first time my Lords the Bishops came into the Council they were asked the question whether they did own that Paper they did immediately answer They humbly hoped as they stood there Criminals His Majesty would not take advantage against them but however they would obey His Majesties Command Sir Rob. Sawyer Were they commanded to withdraw Mr. Blathwayt Yes thereupon they were commanded to withdraw which they did Mr. S. Pemberton When they came in again what questions were asked them Mr. Blathwayt They came in several times more than twice I have reason to remark this that they did so Do you mean the second time Sir Mr. S. Pemberton Yes Sir. Mr. Blathwayt The second time they seemed unwilling to own the Paper Sir Rob. Sawyer And what did they doe the third time Mr. S. Pemberton But first let us know what more was done the second time Sir Geo. Treby How was that unwillingness of theirs overcome Mr. S. Pemberton When they exprest their unwillingness what did they say farther Mr. Blathwayt If I remember right they said as they did the first time they humbly hoped His Majesty would not take advantâ—…ge against them Mr. S. Pemberton Then what did they say the third time Sr. Rob. Sawyer Pray were they asked whether they published it Mr. Blathwayt As to the publishing it it was laid before them and I think they were asked the question whether they published it Sir Rob. Sawyer And what answer did they make Mr. Blathwayt I remember His Grace and my Lords the Bishops did not own they had published it but they denied it Sir Geo. Treby After they discovered their unwillingness the second time what followed next Mr. Blathwayt They did withdraw after the second Attendence Mr. S. Levins But what was said to them Was that all that was said to them the second time Mr. Blathwayt I have said two things already that they were unwilling to answer and that they denied the publishing L. Ch. Iust. This is strange usage of a Witness to put him to tell every thing that was said Mr. S. Pemberton I would ask you this question Sir When they came in the second time whether they did desire to know if it were His Majesties Command that they should own it L. Ch. Iust. That I must not permit you to ask Brother that is to lead the Witness Mr. S. Pemberton My Lord he will not answer general questions I have asked him all along general questions and I cannot get an answer from him to them Mr. Blathwayt I am ready to answer any questions that the Court thinks I should answer I am not backward to answer according to my duty L. Ch. Iust. Let one of you ask a question at a time and not chop in one upon another Mr. Soll. Gen. In all the Tryalls that ever I have been in in all the Cases of Criminals the King's Witnesses used to be treated with respect and not to be fallen upon in this manner L. Ch. Iust. He shall be sure to have all respect paid him Mr. Soll. Gen. He is in Office under the King. Mr. S. Pemberton I do not think Mr. Blathwayt does believe I would shew him any disrespect more than he would shew me Mr. Att. Gen. I beg one word my Lord. L. Ch. Iust. Mr. Attorney What do you say Mr. Att. Gen. My Lord I say I do oppose the asking of this question not but that every man has a right to cross examine a Witness but if they ask such a question let them tell us what use they would make of it L. Ch. Iust. Mr. Attorney General for that matter Mr. S. Pemberton My Lord if you please I 'll give Mr. Attorney an answer L. Ch. Iust. Brother Pemberton I was speaking to Mr. Attorney and pray hear me I will not ask you what use you 'll make of the question you ask but do you ask fair and regular questions and I 'll take care you shall have an answer to them Mr. Serj. Pemberton I will deal plainly with the Court and tell you what use we intend to make of our question if they answered under a Promise from His Majesty that it should not be given in Evidence against them I hope they shall not take advantage of it Mr. Soll. Gen. I say that is a very unmannerly question but however it shall be answered Mr. Serj. Pemberton Why so Mr. Sollicitour Mr. Soll. Gen. My Lord it is to put something upon the King which I dare hardly name L. C. Iust. We do not know what Answer will be made to it yet but it does look like an odd kind of question Mr. Soll. Gen. If men will be so pressing I for the King desire the question may be entred Sir R. Sawyer What do you mean Mr. Sollicitour Mr. Soll. Gen. I know very well what I mean Sir I desire the question may be recorded in Court. Mr. Serj. Pemberton Record what you will I am not afraid of you Mr. Sollicitour Mr. Soll. Gen. Are you afraid of the Law Mr. Serj. Pemberton No nor of you neither L. C. Iust. Pray be quiet Gentlemen Mr. Att. Gen. Pray Mr. Blathwayt answer whether there was any promise made to my Lords the Bishops from the King. Mr. Blathwayt My Lord I take the question to be whether the King was pleased to make my Lords the Bishops any promise of not taking advantage of what answer they made Mr. Att. Gen. That is the question Mr. Blathwayt As that question is stated there was no such made L. C. Iust. Look you he tells you there was no such promise made there is an Answer to your Question Brother Mr. Serj. Levinz We made no such question but the question I would ask is this Mr. Soll. Gen. For the satisfaction of the Court repeat what you said just now Mr. Blathwayt Mr. Blathwayt I take the question to be whether the King made any promise
to my Lords the Bishops that no advantage should be taken of what they said and I say the King made no such promise Mr. Serj. Pemberton We did not ask you the question but we only told you what use we would have made of another question Mr. Pollixfen Mr. Blathwayt I see you can very well distinguish what questions are to be answered I ask you in short upon your Oath When they were first called in what was said to them and what was answered by them L. C. Iust. Here has been a great deal of wrangling but this is a fair question and may reduce us to order again tell us oâ—…er again from the beginning what passed when my Noble Lords the Bishops came in the first second and third time when they were examined about this Paper Mr. Blathwayt My Lord I shall comply with your Lordship's Directions I apprehend I am to answer together concerning the first second and third comings in of my Lords the Bishops into the Council The first time as I said before my Lords the Bishops were unwilling to own the Paper and did say they humbly hoped His Majesty would not take advantage against them but that they were ready to obey his Command The second time they were called in they did repeat it again that they hoped His Majesty would not take advantage against them after that there was mention made of the Paper being published I remember my Lords the Bishops said they had not published it Sir R. Sawyer Is that all Mr. Att. Gen. You have no mind to hear all I think L. C. Iust. How do you expect to be answered your questions if you interrupt them Go on Mr. Blathwayt Mr. Blathwayt Sir I said last that they having prayed the King that no advantage might be taken against them for what they should say there was mention made of the Paper its being published and my Lords the Bishops did say they had not published it and His Grace my Lord Archbishop said it was written with his own Hand and that he had not made use of his Clerk. Sir. R. Sawyer Is that all you can remember that passed at that time Mr. Blathwayt This is the substance of what I remember L. C. Iust. Was this the third time Mr. Blathwayt No that was the second time my Lord. Mr. Pollixfen If there be not some order in this Evidence my Lord we shall not be able to observe any thing upon it Pray what was done afterwards Mr. Blathwayt My Lord Chancellour upon their coming in did require them to answer whether they did own that Paper or not my Lords the Bishops did own the Paper Mr. Pollixfen Do you remember in what words or expressions as near as you can they did own it Mr. Soll. 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 not Mr. Soll. Gen. Has not he sworn the manner of it and almost the very words Mr. Serj. Levinz We desire nothing of him but that he will tell us what words they said when they owned it Mr. Blathwayt It was the third time that they came in that they owned it Mr. Serj. Pemberton Why what did they say Mr. Blathwayt My Lord Chancellour required them to answer whether they owned the Paper or no. Mr. Serj. Pemberton What did they say then Mr. Blathwayt As near as I can remember His Grace and my Lords the Bishops did own the Paper Mr. Serj. Pemberton What words did they own it in tell the manner of it Mr. Soll. Gen. What 's this to the purpose Mr. Finch Mr. Blathwayt Did you take notes of what passed there Mr. Blathwayt I answer Sir I did not take notes for I attended the King at his Elbow and did not take notes Mr. Finch you know the manner of the Council in such cases very well Mr. Att. Gen. Then we ask you for the King because they shall not enflame People by such an expression In what words did they own it if you can remember Mr. Blathwayt 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. Soll. Gen. But we will have no Discourse to enflame the World Did the King promise or declare that no advantage should be taken of their confession L. Ch. Iust. I would ask him that question What was the manner that my Lord Chancellour exprest himself in to them when they came in the third time Mr. Blathwayt Assoon 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 shewed to my Lords the Holding it forth to the Court. Bishops and they owned and declared so just as if they should lay it before the Court just so I do not recollect my self of all the circumstances that passed I only can tell you the substance Mr. Soll. Gen. He does not remember what they said particularly Mr. Att. Gen. Mr. Sollicitour I know well enough what they mean by the question I know they would fain possess the World with a belief that there was such a promise made them and yet they are prosecuted notwithstanding that promise therefore I do ask you Mr. Blaithwayt and for the King's Honour I must ask it Did the King make any Promise or Declaration that no advantage should be taken or use made of it Mr. Blathwayt The King did not make any Promise or Declaration that no advantage should be taken or use made of it Mr. Soll. Gen. He only put them upon it whether they did own it or not Mr. Att. Gen. I ask you upon your Oath Did my Lord Archbishop own it to be his Head-writing Mr. Blathwayt Yes he did and said he writ it with his own Hand and would not let his Clerk write it Mr. Att. Gen. Did he own the whole to be his Hand-writing or not Mr. Blathwayt Yes he did Mr. Att. Gen. Did every one of the Bishops own their names subscribed to it Mr. Blathwayt Yes Mr. Soll. Gen. Then my Lord we pray now that it may be read L. C. Iust. I suppose now they will be content it should be read Mr. Finch If your Lordship please to favour me one word I think it cannot yet be read and my Objection is this L. C. Iust. I thought you had made all your Objections before as to the reading of it Mr. Finch Pray my Lord spare us Here are two parts of this Information the one is for consulting and conspiring to diminish the King's Royal Prerogative and for that end they did make and write a seditious Libell the other part is that they did publish this seditious Libell We are hitherto upon the first 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 Middlesex it
God's House and in the time of his Divine Service must amount to in common and reasonable Construction Your Petitioners therefore most humbly and earnestly beseech your Majesty that You will be gratiously pleased not to insist upon their Distributing and Reading your Majesties said Declaration And Your Petitioners as in duty bound shall ever pray c. Mr. Att. Gen. My Lord we shall leave our Evidence here and hear what they can object to it Mr. Finch Have you no farther Evidence Mr. Attorney Mr. Att. Gen. We leave it here for the present Mr. Sol. Gen. The Gentlemen of the Jury desire to see the Petition L. Ch. Iust. Shew it them The Petition was shewn to the Iury. Mr. Finch But will you give no farther Evidence Mr. Attorney Mr. Att. Gen. I tell you we 'll leave it here till we see what you say to it Mr. Finch There is nothing that we should say any thing to Mr. Att. Gen. Make your Advantage of it if it be nothing we can have nothing L. C. Iust. What say you for the Defendents Gentlemen Mr. Finch My Lord in short we say that hitherto they have totally failed for they have not proved any Fact done by us in Middlesex nor have they proved any Publication at all Sir Robert Sawyer They have given no Evidence of any thing L. C. Iust. Pray Gentlemen speak One at once and then we shall understand the better what we hear Sir R. Sawyer My Lord We say they have given no Evidence of the Conspiring Writing or Pulibshing 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 Middlesex so that there is no proof at all against my Lords the Bishops L. C. Iust. You heard what Mr. Blathwayt said they owned it in Middlesex Mr. Finch That is not a Publication sure or any Evidence where it was done Mr. Serj. Levinz Suppose my Lord that I own in Middlesex that I robb'd a man in Yorkshire will that make me guilty in Middlesex Mr. Sol. Gen. But if you had stole a Horse in Yorkshire and had that Horse in Middlesex and owned it I doubt it would go hard with you in Middlesex Mr. Sol. Gen. Mr. Serjeant thinks he has put a very home Comparison but we shall shew how little significant it is by and by Mr. Serj. Levinz My Lord in the first place we insist upon it here is no proof in this Case at all as to the doing of any Fact 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 set forth That my Lords the Bishops under pretence of a Petition did make a Libel and they have set forth no Petition at all all the Petitionary part is omitted If I will take part of a man's words and not the whole and make a Libel of that part certainly that is very disingenuous and injurious For that part that I omit may alter the Sense of the whole They here ought to set forth the Petition with the Direction to the King and the Prayer at the end whereby it will appear what the whole is and what was desired by their Petition But my Lord to make this matter a little more clear whatsoever they say of its being my Lord Archbishop's Hand we shall prove that if it were so it could not be done in Middlesex for we shall prove that my Lord of Canterbury had not been in Middlesex for three or four Months before Sir Robere Sawyer Pray let the Information be read then you will the see variance Mr. Att. Gen. There is not the latter part we acknowledge in the Information Mr. Sol. Gen. There may be and is a sic Continetur and there is no Objection in that at all L. C. Iust. It is sic Continetur and that 's Sir Rob. Sawyer The truth of it is this Information has made a very deformed thing of it has left it neither Head nor Tail they style it a Petition but it is without any Direction to any body and without any Prayer for any thing and without those two it cannot be told what it is Mr. Iust. Allybone Sir Rob. Sawyer if I mistake not it is said only under pretence of a Petition Sir Rob. Sawyer 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 Sir Robert Sawyer who has exhibited so many Informations for Libells in piâ—…es taken out of Books Mr. Recorder All that we alledge in the Information is contained in the Paper and that 's enough for our purpose we are not bound to recite the whole L. Ch. Iust. Indeed I think it is no material Objection at all Mr. Serj. Pemberton Truly I think it is very material in this Case here 's a Petition that is preferred to his Majesty take the whole Petition together and say they it is a reasonable Petition 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 say any thing concerning the King and doe it by way of Petition to himself that will alter the Case mightily from a Paper spread about that should contain only the body of a Petition and nothing else Sir Rob. Sawyer Pray read that part of the Information Mr. Pollixfen If so be there be an Information and that Information charges a man with a pretended Petition and the Evidence comes and proves a Petition both top and bottom that is not the Petition in the Information for that lacking the proper parts of a Petition is called a pretended Petition but that which is proved is a real one Serj. Baldock My Lord there is nothing in this Objection as this Record hath it Mr. Att. Gen. Pray my Lord give us leave to state it on our side as they have done on theirs and it will be the better understood upon the reading I hope it is not come to that pass that they would have it sure these Gentlemen have not forgot altogether the practice that has been so 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 say in such a Libell is contained so and so without setting forth the whole Book Mr. Sol. Gen. How many Tryalls have we had here wherein there has been only a Clause taken out of a Book as particularly Baxter's Bible and Iohnson's Book and all by virtue of a sic continetur Mr. Finch That comes not up to our Objection here Mr. Iust. Powell Let us hear the Record read and then we can judge of it Sir Rob. Sawyer We pray Sir the Information may be read Mr. Att. Gen. We are here
and an Affront put upon the Bishops they ought to make it out for their own Vindication and to prove themselves Innocent If they do that they do well and they ought to have Satisfaction â—…de them by those that have so highly injured them and the King cannot be better pleased I am sure than to find them so But if Men will look one way and act another they must expect to be dealt with accordingly Will any Man that has heard this Evidence and sees that these Gentlemen will not go the right way to work to prove their own Innocence believe them to be not Guilty 'T is plain they contrived it and signed it for can any one imagine that they set their Hands to a Paper that was not formed and contrived by themselves then let it go That this was done in another County and we cannot punish the Writing of it in this County yet still they are Guilty of causing it to be published in this County and for that we may punish them here We will be content with having that found that we have proved which certainly is an Offence Sir Rob. Sawyer We oppose that Sir. Mr. Sol. Gen. You oppose it I know you 'l oppose common Sense we don't speak to you we speak to the Court we are content with what is plain and do not desire to insist upon any strained Construction we say this is Natural Evidence for us If this thing be a Libel as we say it is then the causing it to be published is an Offence The Publication we â—…ay was here in Middlesex and of that there is Clear Evidence because it was found there and came from the King's Hand to whom it was directed and it could not come to the King's Hand out of their Custody without their Consent This we say is a clear Evidence of causing it to be published let the rest go as it will because we will take the easiest part of the Case and not go upon Strains Mr. Serj. Trinder The greatest Question is I think now come to the Publishing L. Ch. Iust. The Court is of Opinion that its coming to the King is a publishing Mr. Justice Powel Ay my Lord if it be proved to be done by them Mr. Serjeant Pemberton Before the Court deliver their Opinion we desire to be heard L. Ch. Iust. Brother you shall be heard in good time but let them make an end on the other side and when the King's Counsel have done we 'l hear you Mr. Serjeant Trinder My Lord upon the Question of Publishing it has been insisted upon and the Court seems to be very much of the same Opinion That the Writing of it is a Publishing That it is without Controversie if the Writing of it fell out to be in Middlesex where the Information is laid but that they would not have to be so by Argument because the Archbishop had kept in at Lambeth so long But suppose that it were so as they would have it that is only as to the Archbishop he being the Writer of it but yet notwithstanding that the other six might subscribe it in Middlesex taking it that there is such a Face in their Argument as they would have it Mr. Sol. Gen. We will lay no greater load on the other six than we do upon my Lord Archbishop and we say they are all Guilty of the Publication in Middlesex Mr. Serjeant Trinder Pray Sir spare me this Paper was in the Archbishops Custody and Power he making of it himself and regularly it could not have come out of his Custody in common Supposition but it must come with his Consent It was afterwards in the Power of the other six they had it to subscribe where the Subscription was non constâ—… they it may â—…e can prove it themselves but I will only deduce this Argument That if it after comes into Middlesex it must be taken by presumption to be subscribed by them there and published it must taken by Presumption so to be Lord Ch. Iust. No Brother we ought not to do any thing by presumption here Mr. Just. Powel No no by no means we must not go upon Presumptions but Proofs L. Ch. Iust. I will not presume it to be made in Middlesex Mr. Serj. Trinder But it is proved to be published in Middlesex Sir Robert Sawyer My Lord with submission there is no Evidence of the Publication Mr. Attor Gen. That the Court is to judge of Sir Rob. Sawyer Pray good my Lord what Instance of a Publication have they given Mr. Sol. Gen. The Court has heard â—…he Evidence we leave it there Sir Rob. Sawyer Was it their owning and acknowledging it was their Hands when the King asked them the Question at the Council-Table Surely the King's Counsel won't pretend that was a Publication when it was done at the King's Command it was certainly the King that published it then and not my Lords the Bishops Mr. Attor Gen. Well said Sir Rob. Sawyer Don't you remember that when Sir Blathwayt said the King gave it to be read and it was shewed to the Bishops L. Ch. Iust. I remember what Evidence Mr. Blathwayt gave of the Passages at the Council-Board very well and I know what Mr. Attorney did press about the Kings promising to take no advantage Mr. Attor Gen. My Lord Mr. Attorney is on the other side he did not press it L. Ch. Iust. 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 say there is no Evidence at all that ever this was sent to the King by the Archbishop or any of my Lords the Bishops And as for the Cases that they have put they might have put five hundred Cases and all nothing to the purpose Mr. Sol. Gen. So they might and done just as others had done before them Sir Rob. Sawyer And so are these for here is the Question We are in a Case where the Publication is that which makes it a Crime Now I would have them if they can put me any such Case and then apply it to this in William's Case the Question is quite otherwise and so in any Case of Treason it must be where-ever there is an Overt Act proved it is the Treasonable Intention and the ill Mind of the Traytor that is the Crime and the Treason the Overt Act is only to be the Evidence of it In that Case of Williams with submission my Lord the Publication was not at all necessary but the very secretest Act that could be done by him if it were an Act is an evidence of the Mind and so the sending of the Book to the King himself though no body else did see it was an Evidence of the Crime of Treason yet it could not be called a Pâ—…blication But in the other Case of Sir Baptist Hicks which was in the Star-Chamber about sending a Letter of Challenge it was plainly resolved that it was no Publication
the question is from whom the King had it I am sure they must shew that some body else did it and unless they doe show that I hope there is no manner of question 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 still they putting the King upon the necessity of shewing this Power in order to his obtaining satisfaction for it or else he must remain under the indignity without reparation it ought to be put upon them to clear the Fact for if he does not produce it then must the King put up the highest 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 does produce it then say they that is not our publication we prove it to be your writing and signing and we prove it to come from the hand of the King against whom it was composed for we say it is a Libel against his Majesty his Government and Prerogative if then all those cases that have been cited be Law then sure there never was a stronger case in the World than this and I hope the Law goes a little farther in the case of the King than it does in the case of a private Man no Man must think by policy to give private wounds to the Government and disparage the Administration of it and then when he is called in question about it says he pray prove that I published it or else you shall not punish me for it we prove you framed it and writ it and signed it and we prove it came to the King's hand of whom it was composed must we produce two Witnesses of the delivery of it to the King surely there will be no need of any thing of that Mr. Sol. Gen. My Lord we have reduced it now to a very narrow question for as Mr. Attorney has said my Lord there is no doubt but that my Lords the Bishops are the Authours of this Paper there is no doubt but they signed it and there is no doubt but that their signing of it though it were at Lambeth as they say is a publishing of it but however this is plain and manifest that this Paper was published and that this Paper was publiâ—…d in Middlesex that is as plain too now then there is nothing left but this question whether my Lords the Bishops who framed the thing who wrote the thing who signed the thing were not the occasion or cause of its publication or privy or consenting to it my Lord I will reduce it to a very plain point for we are upon a rational question before a rational Court and a rational Jury whether these Lords did all of them in the County of Surry consent to the publishing of this Paper in Middlesex for it is published in Middlesex that we see and if they are guilty of that part of the Information of causing it to be published now what do they say to it say they it is agreed that it is published in Middlesex but it is not proved to be published by us Lord Ch. Iust. No they do not say so they agree it was in Middlesex but not published Mr. Iust. Powel Mr. Solicitor they do agree it was in Middlesex but not published to be sure not by them Lord Ch. Iust. Mr. Solicitor I 'll tell you what they stand upon they say you ought to prove it to be delivered to the King by the Bishops or some body employed by them for upon that went the Resolution that was in William's case that he sent it to the King but here is no body that proves that it was delivered to the King in this case so that how it came to the King Non constat Mr. Sol. Gen. There will be the question between us whether this be not a publication Sir Rob. Sawyer Pray Mr. Solicitor prove your case before you argue it Lord Ch. Iust. First settle what the case is before it be either proved or argued Mr. Sol. Gen. My Lord I 'll put you the case here does appear in Middlesex a Paper that is a Libel in it self and this Libel is proved to be written and formed by these persons this Libel coming into Middlesex the question is whether they are privy to it I say in point of presumption it must come from them Lord Ch. Iust. I cannot suppose it I cannot presume any thing Mr. Sol. Gen. My Lord I speak of that which is a common presumption a natural presumption what we commonly call a violent presumption which is a legal presumption and has always been allowed for Evidence now whether there be not such a presumption in our Case as to induce your Lordship and the Jury to believe that it cannot be otherwise or at least to put the labour upon them to shew how it came out of their Studies and how it came to the King's hands for it is in their power to shew the truth of this matter how it was if they do not the presumption 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 Middlesex and who should bring it to the King but these Gentlemen in whose power it was there is no Man undertakes to say he lost it then what else is to be believed but that it came from them I speak of common supposition and belief they may very well shew it if it were not so all that we can say in it is here is a Paper in Middlesex this you agreed was once your Paper and in your power pray shew what became of it it lies upon you to clear this doubt Mr. Recorder My Lord there is but this question in the case the question 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 it to the King that will be agreed to me to be a publication Mr. Ius Holloway No doubt of it if you can prove it Mr. Recorder Pray Sir spare me that they did it you have this Evidence first that they were the Authours of this Paper by their own Confession that this was in the County of Middlesex and that when they were asked concerning it they owned it to be their hand Writing now whether you can in the least question after all this their delivering of it to the King or that it came to the King's hands without their knowledge or consent is that which lies before your Lordship for your Judgment Lord Chief Iustice. I will ask my Brothers their Opinion but I must deal truly with you I think it is not Evidence against my Lords the Bishops Mr. Iust. Holloway Truly I think you have failed in your Information you have not proved any thing against my Lords the Bishops in
the County of Middlesex and therefore the Jury must find them not guilty Mr. Attor Gen. I 'le put you but one case my Lord a Man has an opportunity secretly to deliver a Libel into the King's hands when no Body is by and so there can be no proof of the delivery Mr. Iust. Powel 'T is a dangerous thing Mr. Attorney on the other side to convict People of Crimes without proof Mr. Attorney General But shall a Man be permitted thus to affront the King and there be no way to punish it Lord Chief Iustice. Yes there will sure but it will be a very strange thing if we should go and presume that these Lords did it when there is no sort of Evidence of it 't is that which I do assure you I cannot do we must 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 Conscience Mr. S. Trinder But as to that other point whether their owning of it be a publication has not been particularly spoke to Lord Chief Iustice. Mr. Attorney and Mr. Solicitor if there were enough to raise doubt in the Court so as to leave it to the Jury I would summ up the Evidence Mr. Solicit Gen. My Lord we know it is with the Court these Lords insisted upon it that it was a great while in their hands but it seems as far as our Evidence has gone hitherto their Confession went no farther than that it was their Paper and we must not extend their Confession further than it was but I think we shall offer a fair Evidence that they did deliver it in the County of Middlesex Lord Ch. Iust. Indeed indeed you ought to have gone to this Mr. Solicitor before the Court gave their Opinions Mr. Solicit Gen. Pray call Mr. Blathwayt again Mr. Blathwayt called Lord Ch. Iust. Mr. Solicitor unless you are sure that Mr. Blathwait is a Witness to the publication 't is but spending the Courts time to no purposâ—… to call him Mr. Solicit Gen. We are sure of nothing my Lord but we must make use of our Witnesses according to our Instructions in our Briefs Then Mr. Blathwait appeared Mr. Attor Gen. Mr. Blathwait you were sworn before Mr. Blathwait Yes Sir. Mr. Attor Gen. Your were present when this Paper or Petition was dell vered by the King at the Council-Board Mr. Blathwait Yes I was so Sir. Mr. Attor Gen. Do you remember any thing of the Bishops acknowledging their delivery of it to the King. Mr. Sol. Gen. Mr. Blathwait I would ask you was there any mention or discourse with my Lords the Bishops 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. Blathwait I don't remember any thing of that Mr. Solicitor at which there was a great Laughter Lord Ch. Iust. Pray let us have no laughing it is not decent can't all this be done quietly without noise pray Mr. Blathwait let me ask you do you remember there was any discourse how that writing came into the Kings hands Mr. Blathwait I received it from the Kings hands and I know it was presented to him by my Lords the Bishops Lord Ch. Iust. How do you know it was presented to the King. Mr. Blathwait I heard the King say so several times Mr. Sol. Gen. Pray mind my question Sir first I ask you who produced the Paper at the Council-Table Mr. Blathwait The King. Mr. Sol. Gen. What said the Bishops when that Paper was shewed them Mr. Blathwait Then as I remember they were asked whether that was the Paper that they delivered to the King Mr. Sol. Gen. Then what said the Bishops Mr. Blathwait They at first scrupled to answer and they said it might be made use of to their prejudice if they owned it Mr. Att. Gen. Pray Mr. Blathwait consider again was that the question put to my Lords the Bishops whether that was the Paper that was presented by them to the King Mr. Blathwait I do think to the best of my remembrance that my Lord Chancellor did ask them to that purpose I cannot speak to the very words Mr. Sol. Gen. And upon this what answer did they make Mr. Blathwait My Lords the Bishops scrupled to answer the first and second time as I told you before but they did own it was the Petition that they presented to the King to the best of my remembrance Mr. Sol. Gen. Did the Archbishop do any thing to own it Mr. Blathwait Yes both my Lord Archbishop of Canterbury and the rest of the Bishops did own all the same thing Mr. Sol. Gen. Was this done at Whitehall Mr. Blathwait Yes at the Council-Table L. Ch. Iust. Pray recollect your self and consider what you say did they own that that was the Paper they delivered to the King Mr. Serj. Pemb. Pray my Lord give us leave to ask a question to clear this matter was the question put to them Whether it was the Paper that they delivered or whether it were their hands that were to it Mr. Blathwait My Lord I do not so exactly recollect the words L. Ch. Iust. But pray tell us if you can what the question was Mr. Blathwait My Lord I do not remember the very words but I think if Mr. Serjeant Pemberton be pleased to repeat his question I shall give him a satisfactory answer as well as I can Mr. Serj. Pemberton Sir that which I ask you is this Whether the question that was put to my Lords the Bishops at that time was Whether this was the Paper that they deliver'd to the King or whether those were their hands that was to it Mr. Blathwait My Lord I did always think that it was a plain Case that that was the Paper that they delivered to the King and my Lords the Bishops did never deny but that they gave it to the King and I had it from the King's hands L. Ch. Iust. But we must know from you if you can tell us what the question was that was put to my Lords the Bishops were they asked Whether those were their hands that were to that paper or was it Whether they delivered that paper to the King Mr. Blathwait As to the first part that they owned 't was their hands that I am sure of but as to the other I do not remember what the words were At which there was a great shout Mr. Att. Gen. Pray Mr. Blathwait recollect your self you say the King produced it Mr. Blathwait Yes Sir. Mr. Att. Gen. Do you remember that the King asked them any question upon the producing of it Mr. Blathwait My Lord Chancellor asked them if those were not their hands to the Petition Mr. Sol. Gen. Was there any other matter in discourse whether that was the paper that was delivered by them to the King Mr. Blathwait I cannot so positively say what were the words that my Lord
Chancellor used Mr. S. Levinz Pray do not twist a man so Mr. Solicitor Mr. Sol. Gen. And you are not to untwist a man neither Mr. Serjeant Mr. Att. Gen. Do you remember that the King said any thing of the paper being delivered to him Mr. Blathwait The King has said it several times I believe I have heard him say it ten times at least Mr. Att. Gen. Did he say it at that time Mr. Blathwait I cannot positively say that he did Sir. Mr. S. Pemb. He cannot answer it why will you press it Mr. Blathwait My Lord here is the Clerk of the Counsel that was then in waiting he took minutes and perhaps can remember more than I. Mr. Sol. Gen. Here they cry he cannot answer it as if they could tell what he can answer better than himself pray Mr. Bridgman was there any question to this purpose either from my Lord Chancellor or from the King whether that was the Paper that was presented by my Lords the Bishops or delivered by the King for I see you are very nice as to words and you do very well but was there not a question to that purpose Mr. Bridgm. Sir I do not remember for I speak to the best of my remembrance in all this matter I say I do not remember that that question was asked in those very words but I do remember something was said to that purpose but by whom I cannot particularly say Sir Rob. Sawyer To what purpose Mr. Sol. Gen. It is very strange that they wont let the witness speak but are continually interrupting him Sir Rob. Sawyer Mr. Solicitor no body interrupts him L. C. I. Why do not I behave my self between you all as I ought to do pray Sir Rob. Sawyer sit down you cannot be contented when the man does you no harm Mr. Sol. Gen. Pray consider did my Lords the Bishops say any thing or was there any discourse concerning the Paper whether it was delivered to the King or no Mr. Bridgm. Mr. Solicitor I have told you as near as I can what I do remember I know not by whom it was said but that question or to that purpose was asked whether that was the Petition they delivered but I do not remember whether the question was directly asked or answered there was something about it and several passages there were but whether spoken by my Lord Chancellor or who I cannot remember Mr. Sol. Gen. You say there was that which sufficiently denoted a question to that purpose and they said nothing against it Mr. Bridgm. No there was no denial of it Mr. S. G. I see you do not remember the particular words nor do we desire it of you Mr. Bridgm. They did not deny it nor confess it Mr. Sol. Gen. Then in your apprehension did they own that they delivered that Paper to the King L. C. I. You must not ask that Mr. Solicitor it is not a fair question to ask him what he apprehended Mr. Sol. Gen. He said it before himself L. C. I. But his apprehensions are no Evidence and it is a sort of a leading question which we must not allow of Mr. Sol. Gen. Then if your Lordship do not like it I will not ask it but I will ask him another question L. C. I. Ay ten if you will so they be fair ones Mr. Sol. Gen. Was it upon the first or second time of their being examined Mr. Bridgm. I cannot tell it was not the first time all of it I believe for at the first time my Lords the Bishops made some scruple of answering or owning any thing and whatsoever they owned they said they hoped it should not be made use of to their prejudice I remember no reply that was made nor any thing farther onely my Lord Chancellor said they were not to capitulate with their Prince but they were required to answer the questions that were asked them Mr. Sol. Gen. What were those questions 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. Iust. Pow. Mr. Solicitor you have been told you are to ask no such questions S. R. Saw. Nor never was there such wire-drawing of a Witness in this world before L. Ch. Iust. Pray sit still Sir Rob. Sawyer you are not to teach us what we are to do Mr. Solicitor must ask questions that are proper for him and not such as these but the Court must correct him and not you Mr. Sol. Gen. Mr. Bridgman is very cautious and he is to be commended for it but we would get the truth out of him if we could pray Sir if you can remember recollect your self whether by any question to that purpose 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 first that I do not remember the very words of the question but I believe there was no body doubted that that was not the paper Mr. Sol. Gen. You speak well in your way but these Gentlemen are very unwilling you should tell your opinion L. Ch. Iust. His opinion is no Evidence therefore you must not ask any such questions Mr. Solicitor Mr. Bridgm. Assoon as the Petition was delivered within a few hours after I saw it the King shewed it to several people and he said it was the Petition the Bishops had delivered he took it into his own custody and afterwards commanded me to write a Copy of it and there was no Copy made of it but that one but notwithstanding that I do remember I did see a Copy of the Petition within a day or two after it was presented about the Town Mr. Sol. Gen. Pray how many days was this before the discourse in Counsel 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 say as you believe it was in a few hours after the paper was delivered to the King that you did see it Mr. Iust. Powel But what makes him say that this was delivered to the King but only hear-say Lord Ch. Iust. Pray Mr. Solicitor will you produce that which is Evidence and not spend our time in that which is not Mr. Sol. Gen. My Lord I would make no more of it than it is Mr. S Levinz 'T is a shamefull thing to offer such things in a Court of Justice Mr. S. Pemberton 'T is a practice that ought not to be endured Lord Ch. Iust. Pray Brothers be quiet or I 'le turn him loose upon you again if you 'l not be quiet what is the matter cannot you let us alone we shall do every body right come to shorten this matter I ask you but this one question and that may satisfie any one that has honesty 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 answered that question as directly as I can I do not positively remember that that was the question Lord Ch. Iust. Mr. Solicitor General you must be satisfied when proper questions are fairly answered and therefore pray be quiet Mr. Att. Gen. However we pray we may ask the rest of the Clerks of the Counsel it may be they may remember more Sir Iohn Nicholas you were at the Council-Table that day my Lords the Bishops were examined about this Paper Sir Iohn Nicholas Yes Sir I was Mr. Att. Gen. Pray did you observe that the King produced the Petition Sir Iohn Nicholas No indeed I did not see it Mr. Att. Gen. Did you observe any thing that passed there in discourse Mr. Sol. Gen. Did you observe any questions that were asked the Bishops either by the King or by my Lord Chancellor Sir Iohn Nich. 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 Ch. Iust. I 'le ask you Sir Iohn Nicholas did my Lord Chancellor ask them this question is this the Petition you delivered to the King Sir Iohn Nicholas I do not remember that Then there was a great shout Mr. Sol. Gen. Here 's wonderfull great rejoycing that truth cannot prevail Mr. S. Pemberton No Mr. Solicitor truth does prevail Mr. Sol. Gen. You are all very glad that truth is stifled Mr. Serjeant Mr. S. Trinder Pray Sir Iohn Nicholas let me ask you one question was there any discourse about delivering that Petition to the King Sir Iohn Nicholas Indeed I do not remember it Mr. Sol. Gen. There is Mr. Pepy's wee 'll examine him Mr. Pepy's sworn Lord Ch. Iust. Come I 'le ask the questions were you bye at the Council-Board when my Lords the Bishops were committed Mr. Pepy's Yes I was Lord Ch. Iust. What were the questions that were asked either by the King or by my Lord Chancellor Mr. Pepy's My Lord I would remember as well as I could the very words and the very words of the question were I think My Lords do you own this Paper I do not remember any thing was spoken about the delivering but I believe it was understood by every body at the Table that that was the Paper that they had delivered Lord Ch. Iust. Well have you done now But to satisfie you I 'le ask this question was this question asked my Lords was this the Paper you delivered to the King Mr. Pepy's No my Lord. Mr. Att. Gen. Pray Sir do you remember whether the King himself asked the question Mr. Pepy's You mean I suppose Mr. Attorney that these were the words or something that imported their delivering it to the King. Mr. Att. Gen. Yes Sir. Mr. Pepy's Truly I remember nothing of that Mr. Sol. Gen. Did you observe any discourse concerning their delivery of it to the King. Mr. Pepy's Indeed Mr. Solicitor I do not Mr. Att. Gen. Swear Mr. Musgrave Mr. Musgrave Sworn Lord Ch. Iust. You hear the question Sir what say you to it Mr. Musg My Lord I will give as short an acount of it as I can the first time after his Majesty had produced the Petition and it was read at the Board his Grace my Lord Arch Bishop of Canterbury and the other six Reverend Lords Bishops were called in and it were asked of them if they owned that or if it was their hands my Lord Archbishop in the name of the rest did decline answering upon the account that they were there as Criminals and were not obliged to say any thing to their own prejudice or that might hurt them hereafter but if his Majesty would command them and if he would promise that no advantage should be made of whatsoever they confessed then they would answer the question his Majesty made no answer to that but only said he would do nothing but what was according to Law whereupon the Bishops were ordered to withdraw and being called in a second time the Petition was shewn to them and they were asked if they did own it or if it was their hands and I think my Lord Archbishop did say then we will rely upon your Majesty or some such general thing was said and then they did all own it that it was their hands I cannot say the Petition was read to them Mr. Iust. Pow. Mr. Blathwait as I remember it was the third time Mr. Musgrave It was the second time to the best of my remembrance Lord Ch. Iust. Pray Sir was there any question to this purpose is this the Paper you delivered to the King Mr. Musg I do not remember that ever any such direct question was asked Mr. Iust. Allybone But as my Brother Pemberton did very well before distinguish there is a great deal of difference between the owning the subscription of a Paper and between the owning of that Paper Mr. Pepy's did say that they did own the Paper and upon my word that will look very like a Publication Mr. Musg I remember my Lord there was at the same time a question asked because several Copies had gone about the Town whether they had published it and my Lord Archbishop did say he had been so cautious that he had not admitted his own Secretary but writ it all himself and the rest of the Bishops did say they did not publish it nor never gave any Copies of it Mr. Att. Gen. My Lord I confess now it is to be left to the Jury upon this point whether there not being a positive Witness that was by when the thing was done yet upon this Evidence the Jury can't find any otherwise than that the thing was done truly I think we must leave it as a strong case for the King I could have wished indeed for the satisfaction of every body that the proof would have come up to that but we must make it as strong for the King upon the Evidence given as it will bear now my Lord take all this whole matter together here is a Paper composed framed and written by seven learned Men and this must be written by such persons sure for some purpose it is directed as a Petition to the King and this Petition did come to the hands of the King for the King produces it in Counsel and my Lord Archbishop and the rest of the Bishops owned their hands to it then the question is my Lord whether or no there be any room for any body living to doubt in this case that this was not delivered by my Lords the Bishops to the King though it be not a conclusive Evidence of a positive Fact yet unless they shew something on the other side that may give way for a supposition to the contrary that it came out of their hands by surprize or
that any body else delivered it to the King without their knowledge or consent here must needs be a very violent presumption that they did do it and when nothing of that is said on their side can any Jury upon their Consciences say that it was not published by them and it being found in Middlesex though it might be written and composed in Surry yet surely we have given a convincing Evidence that either they published it or caused it to be published in Middlesex Pray call Mr. Grayham Cryer He is gone out of the Hall. Mr. Sol. Gen. My Lord there is in Law a presumption that is Evidence though there be no positive proof Sir Rob. Sawyer But not in an Information for a Libel Mr. Sol. Gen. This is a meer question of Fact there is no difficulty in the Law of it at all for it is plain if these Lords or any of them did consent and agree to the publishing of this Paper in Middlesex they are guilty of this Information and whether they are guilty or not guilty we do rely upon the Circumstances proved which are very violent First that they were the Men that contrived and set their hands to it and so were the Authours of it is undenyable for they have owned it Men of their learning and parts never did any such thing in vain and then that they were concerned in the publishing of it in Middlesex we offer for proof that which was said by Mr. Pepy's and Mr. Blathwait who though they do not come directly and expresly to the formal words of such a question yet they tell you especially Mr. Blathwait that they did apprehend it and it was the Collection of all their thoughts and they took it for granted as a thing that every body was satisfied in that they did deliver that Paper to the King. I must confess and agree there is no proof of the delivery of it by my Lords the Bishops to the King but we know very well that it is no wonder when a Paper is Libellous that Men should use all the skill they can to publish it with impunity and this is a thing that was done after some time of premeditation and serious Consultation for it was some days after the Order for reading the Declaration was published that this was framed and delivered and it concerned them to be wary as it seems they have been but take this altogether my Lord the Paper being found in the King's Hands it is in these Persons Power and it lies upon them to make it out plain what became of this Paper which once lay in their own Hands and Custody they can give an Account of it they can give Light unto it If they do not I shall submit to the Jury whether this is not sufficient Evidence to Convict them especially when being examined they did not make that their Excuse they never said this Paper indeed we signed but we did not intend to publish it we intended to stifle it that had been some excuse But for them to say now they did not present it to the King I must submit to the Jury whether they will believe upon this Evidence that these Lords the Bishops did present it or cause it to be presented to the King then they are guilty of this Matter And I leave it to them and their Consciences what they will think upon the whole Mr. Recorder My Lord if your Lordship please Lord Chief Iustice. What again Well go on Sir Bartho Shore if we must have a Speech Mr. Recorder Nay my Lord I would not trespass upon your Lordship L. C. Iust. Gentlemen of the Jury here is an Information against my Lords the Bishops I think I need not trouble my self to open all of it because I see you are Men of Understanding Men of great Diligence and have taken Notes your selves some of you therefore I say only something of the Proof that is required in such a Case and of the manner of the Proof that has been given in this Case and then tell you my Opinion in Point of Law. Here is an Information brought by Mr. Attorny General on behalf of the King against these Reverend Fathers of the Church the Arch-Bishop and the rest and it is for publishing a Seditious Libel under the pretence of a Petition in which are contained the words that are seen Gentleman the Information is long it tells you That the King out of his Gracious Clemency to all his Loving Subjects and for other Considerations had thought fit to publish a Declaration of Indulgence that all his Loving Subjects might have Liberty of Conscience upon the 4th of April in the 3d Year of his Reign and that this was set forth by the King and that the King of his farther Grace about the 27th of April then next following Mr. Finch I humbly beg your Lordships Favour L. C. Iust. What say you Mr. Finch Mr. Finch I ask your Pardon for breaking in upon you when you are directing the Jury I know I should not do it but I hope you will not be angry with me for it L. C. Iust. If I thought you did any Service to your Client I should willingly hearken to you Mr. Finch That which I humbly offer to your Lordship is only to remember your Lordship where we were L. C. Iust. Go on Sir. Mr. Finch I would only say this my Lord the Question is Whether this be Evidence or no L. C. Iust. I am sorry Mr. Finch you have that Opinion of me as to think I should not leave it fairly to the Jury Mr. Finch I only speak it my Lord because if it be Evidence we have other Matter to offer in Answer to that Evidence and in our own Defence L. C. Iust. If you have more to offer why did you conclude here and let me begin to direct the Jury but since you say you have other Matter to offer we will hear it Mr. S. Pemberton My Lord we submit to your Lordships direction L. C. Iust. No no you do not you say you have further Matter to offer Mr. Pollixfen My Lord we shall rest it here L. C. Iust. No no I will hear Mr. Finch Go on my Lords the Bishops shall not say of me that I would not hear their Counsel I have already been told of being Counsel against them and they shall never say that I would not hear their Counsel for them Mr. S. Levinz My Lord we beseech your Lordship go on with your Directions for all that Mr. Finch said was only that this was not sufficient Evidence L. C. Iust. No Brother he says you have a great deal more to offer and I will not refuse to hear him the Court will think there was something more than ordinary therefore I will hear him such a Learned Man as he shall not be refused to be heard by me I 'le assure you Why don't you go on Mr. Finch Mr. Finch My Lord I beg your pardon for interrupting
day L. President Yes they were Mr. Soll. Gen. Was this before they appeared in Council L. President Yes it was several days before Mr. Soll. Gen. Then I think now my Lord the matter is very plain Mr. Iust. Allibone Did they acquaint your Lordship that their business was to deliver a Petition to the King. L. President Yes they did Mr. Soll. Gen. And they would have had my Lord read it he says Mr. Attorn Gen. And this was the same day that they did go in to the King. L. President The very same day and I think the same hour for it could not be much longer L. Ch. Iust. Now it is upon you truly it will be presumed to be the same unless that you prove that you delivered another Pray my Lord did you look into the Petition L. President No I refused it I thought it did not concern me Mr. Iust. Powel Did you see them deliver it to the King my Lord L. President I was not in the Room when it was delivered Mr. Iust. Powel They did open their Petition to your Lordship did they L. President They offered me to read it but I did refuse L. Ch. Iust. Will you ask my Lord President any Question you that are for the Defendants Sir Rob. Sawyer No my Lord. Mr. Sol. Gen. Then my Lord we must beg one thing for the sake of the Jury if your Lordship can turn your self a little this way and deliver the Evidence you have given over again that they may hear it L. President My Lord I will repeat it as near as I can I think I shall not vary the Sense The Bishops of St. Asaph and Chichester came to my Office I do not know just the day when but it was to let me know that they came in the Name of the Archbishop and four other of their Brethren Is it necessary I should name them L. Ch. Iust. Do it my Lord if you can L. President They were the Bishops of Ely Bath and Wells Bristol and Peterborough they came to let me know in the Name of the Arch-bishop those four and themselves that they had a Petition to deliver to the King if he would give them leave and desired to know of me which was the best way to do it I told them I would know the King's Pleasure 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 I refused and would not read it but I went immediately to the King and acquainted his Majesty with it and he commanded me to let them know they might come when they would which I immediately did they said they would go and speak with some of their Brethren that were not far off in the mean time I gave order that they should be admitted when they came and they did in a little time return and went first 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. President Yes it was Mr. Pollixfen Your Lordship did not read any thing of the Petition L. President No Sir I did not I refused it Mr. Pollixfen Nor does your Lordship know what Petition they did deliver to the King. L. President I did not know any thing of it from them then L. Ch. Iust. Now you may make your Observations upon this two hours hen now we shall hear what Mr. Finch had â—…her to offer I suppose Then my Lord President went 〈◊〉 Mr. Sol. Gen. I think now it is very plain L. Ch. Iust. Truly I 〈◊〉 〈◊〉 tell you there was a great presumption before but there is a greater now and I think I shall leave it with some effect to the Jury I cannot see but that here is enough to put the Proof upon you they came to the Lord President and asked him how they might deliver a Petition to the King he told them he would go and see what the King said to it they would have had him read their Petition but he refused it he comes and tells them the King said they might come when they would then those two that came to my Lord President went and gathered up the other four the Arch-bishop indeed was not there but they six came and my Lord President gave Direction they should be let in and they did go into the Room where the King was now this with the King 's producing the Paper and their owning it at the Council iâ—… such a Proof to me as I think will be Evidence to the Jury of the Publication Mr. Pollixfen Then my Lord thus far they only can go the Arch-bishop was not there and so there is no Evidence against him Mr. Sol. Gen. As to the Writing we have given Proof against him for it is all his Hand Mr. Pollixfen That still is in another County and there is nothing proved to be done by my Lord Arch-Bishop in Middlesex and next for the other six Lords my Lord President does not say that this is the Petition that they said they had to deliver to the King nor did he see them deliver any thing to the King but that is left still doubtful and under your Judgment so that it stands upon Presumption not upon Proof that this is the same and left under Consideration Mr. Attor Gen. Then we will leave it fairly to the Jury upon this Fact. Mr. Pollixfen If so then we desire to be heard in our Defence Sir Rob. Sawyer May it please your Lordship and you Gentlemen of the Jury you have heard this Charge which Mr. Attorny has been pleased to make against my Lords the Bishops and that is this That they did conspire to diminish the Royal Authority and Regal Prerogative Power and Government of the King and to avoid the Order of Council and in prosecution of this they did falsely maliciously and seditiously make a Libel against the King under pretence of a Petition and did publish the same in the King's presence This Gentlemen is a very heinous and heavy Charge but you see how short their Evidence is The Evidence they bring forth is only that my Lords the Bishops presented the Paper to the King in the most private and humble manner they could that which they have been so many hours a proving and which they cry up to be as strong an Evidence as ever was given proves it to be the farthest from Sedition in the doing of it that can be and you see what it is it is a Petition to be relieved against 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 set it forth that it was a Petition L. Ch. Iust. That was over-ruled before Sir Rob. Sawyer I do not insist upon it now so much an Exception to the Information as I do to the Evidence they set this forth to be
Records in Parliament mentioned in their Petition and produce several Ancient Records of former Parliaments that prove this Point and particularly in the Time of Richard the Second concerning the Statute of Provisors where there were particular Dispensations for that Statute the King was enabled to do it by Act of Parliamentâ—… and could not do it without L. C. Iust. Pray Sir Robert Sawyer go to your Proofs and reserve your Arguments till afterwards Sir Rob. Sawyer My Lord I do but shortly mention these things so that my Lord as to the Matter of this Petition we shall shew you that it is true and agreeable to the Laws of the Land. Then my Lord as to the manner of delivering it I need say no more but that it is plain from their Evidence that it was in the most private and humble manner And as my Lord President said Leave was asked of the King for them to be admitted to present it Leave was given and accordingly they did it We come then my Lord to the third thing the Persons these noble Lords and we shall shew they are not Busie-Bodies but in this Matter have done their Duty and medled with their own Affairs That my Lord will appear First By the general Care that is reposed in them by the Law of the Land They are frequently in our Books called the King's Spiritual Judges they are intrusted with the Care of Souls and the Superintendency over all the Clergy is their principal Care. But besides this my Lord there is another special Care put upon them by the express Words of an Act of Parliament for over and above the general Care of the Church by virtue of their Offices as Bishops the Act of 1 Eliz. cap. 2. makes them special Guardians of the Law of Uniformity and of that other Law in His Late Majesty's Reign where all the Clauses of that Statute of 1 Eliz. are revived and made applicable to the present State of the Church of England Now in that Statute of 1 Eliz. there is this Clause And for the due Execution hereof the Queen 's Most Excellent Majesty the Lords Spiritual and Temporal and all the Commons in this present Parliament assembled do in God's Name earnestly require and charge all the Archbishops and Bishops and other Ordinaries that they do endeavour themselves to the utmost of their Knowledges that the due and true Execution hereof may be had throughout their Diocesses and Charges as they will answer before God for such Evils and Plagues wherewith Almighty God may justly punish his People for neglecting this good and wholsome Law. This is the Charge that lies upon the Bishops to take care of the Execution of that Law and I shall pray by and by that it may be read to the Jury Mr. Soll. Gen. That is very well indeed To what purpose Sir Rob. Sawyer So that my Lord by this Law it is plain that my Lords the Bishops upon pain of bringing upon themselves the Imprecation of this Act of Parliament are obliged to see it executed and then my Lord when any thing comes under their Knowledge especially if they are to be Actors in it that has such a tendency to destroy the very Foundations of the Church as the Suspension of all the Laws that relate to the Church must do it concerns them that have no other Remedy to address the King by Petition about it For that Mr. Attorney my Lord has agreed That if a proper Remedy be pursued in a proper Court for a Grievance complained of though there may be many hard Words that else would be scandalous yet being in a regular Course they are no Scandal And so it is said in Lake's Case in my Lord Hobbart My Lord we must appeal to the King or we can appeal to no body to be relieved against an Order of Council with which we are aggrieved and it is our Duty so to do according to the Care that the Law hath placed in us Besides my Lord the Bishops were commanded by this Order to do an Acâ—… relating to their Ecclesiastical Function to distribute it to be read by their Clergy And how could they in Conscience do it when they thought part of the Declaration was not according to Law Pray my Lord What has been the reason of His Majesty's consulting of his Judges And if His Majesty 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 so I always look'd upon it as the Duty of an Officer or Magistrate to tell the King what is Law and what is not Law. In Cavendish's Case in the Queen's time there was an Office granted of the Retorn of the Writs of Supersedeas in the Court of Common Pleas and he comes to the Court and desires to be put into the possession of the Office The Court told him They could do nothing in it but he must bring his Assize He applies to the Queen and she sends under the Privy Seal a Command to sequester the Profits and to take Security to answer thâ—… Profits as the Judgment of the Law should go But the Judges there return an Answer That it was against Law and they could not do it Then there comes a second Letter reciting the former and commanding their Obedience The Judges returned for Answer They were upon their Oaths and were sworn to keep the Laws and would not do it My Lord The like was done in the time of my Lord Hobbart We have it reported in Anderson in a Case where a Prohibition had gone There came a Message from Court that a Consultation should be granted and that was a Matter wherein there were various Opinions whether it was Ex Necessitate or Discretionary but there they return'd That it was against Law for any such Message to he sent Now here my Lord is a Case full as strong My Lords the Bishops were commanded to do an Act which they conceived to be against Law and they decline it and tell the King the reason and they have done it in the most humble manner that could be by way of Petition If they had done as the Civil Law terms it Rescribere generally that had been lawful but here they have done it in a more respectful manner by an humble Petition If they had said the Law was otherwise that sure had been no Fault but they do not so much as that but they only say it was so declared in Parliament and they declare it with all Humility and Dutifulness So that my Lord if we consider the Persons of the Defendants they have not acted as Busie-Bodies and therefore as this Case is when we have given our Evidence here will be an Answer to all the Implications of Law that are contained in this Information For they would have this Petition work by Implication of Law to make a Libel of it but by what I have said it will appear
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 ordainâ—… 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
the Noise of them in your several Countries and God be thanked they were but Noise without any worse Effects To cure the Distempers and compose the differing Minds that are yet amongst us I set forth my Declaration of the 26th of December In which you may see I am willing to set Bounds to the Hopes of some and to the Fears of others of which when you shall have examined well the Grounds I doubt not but I shall have your Concurrence therein The truth is I am in my Nature an Enemy to all Severity for Religion and Conscience how mistaken soever it be when it extends to Capital and Sanguinary Punishments which I am told were began in Popish Times Therefore when I say this I hope I â—…hall not need to warn any here not to inferr from thence that I mean to favour Popery I must confess to you there are many of that Profession who having served my Father and my self very well may fairly hope for some part in that Indulgence I would willingly afford to others who dissent from us But let me explain my self lest some mistake me herein as I heard they did in my Declaration I am far from meaning by this a Toleration or Qualifying them thereby to hold any Offices or Places of Trust in the Government Nay further I desire some Laws may be made to hinder the Growth and Progress of their Doctrine I hope you have all so good an Opinion of my Zeal for the Protestant Religion as I need not tell you I will not yield to any therein not to the Bishops themselves nor in my liking the Uniformity of it as it is now established which being the Standard of our Religion must be kept pure and uncorrupted free from all other Mixtures And yet if the Dissenters will demcan themselves peaceably and modestly under the Government I could heartily wish I had such a Power of Indulgence to use upon Occasion Sir Geo. Treby Pray Sir read that out distinctly Clerk reads I could heartily wish I had such a Power of indulgence to use upon Occasion as might not needlesly force them out of the Kingdom or staying here give them Cause to conspire against the peace of it My Lords and Gentlemen It would look like Flattering in me to tell you in what degree I am confident of your Wisdom and Affection in all things that relate to the Greatness and Prosperity of the Kingdom If you consider well what is best for us all I dare say we shall not disagree I have no more to say to you at present but once again to bid you heartily welcome Mr. Finch The next thing we shall shew you is that after the King had made this Speech and wished he had such a Power of Indulgence to use upon Occasion there was a Bill in the House of Lords brought in to enable the King to dispense with several Laws We shall shew you the Journal where it was Read and Committed but further than that it went not L. C. I. What Use do you make of this Mr. Finch Sir Rob. Sawyer You may easily apprehend the Use we shall make of it The King in his Speech says He wish'd he had such a Power the House 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 13th of March 1662. Clerk reads Die Veneris XIII o die Martii 1662. After some Debate whether the House should be put into a Grand Committee for the further Debate of the Bill concerning His Majesty's Power in Ecclesiastical Affairs it was put to the Question viz. As many of your Lordships as would have this House adjourned and put into a Committee to consider of the said Bill say Content others Not Content Passed in the Affirmative And then the Lord Chamberlain of the Houshold was directed to take the Chair as formerly which he did accordingly And after Debate the House was resumed after the Grand Committee had appointed a Sub-Committee touching the said Bill Sir Rob. Sawyer This is all in the Journal of the House of Lords about this Matter We will now shew you the Bill it self Clerk reads An Act concerning His Majesty's Power in Ecclesiastical Affairs WHereas divers of His Majesty's Subjects through Error of Judgment and mis-guided Consciences whereunto the Licentiousness of these late unhappy Times have much contributed do not conform themselves to the Order of Divine Worship and Service established by Law and although His Majesty and both Houses of Parliament are fully satisfied that those Scruples of Conscience from whence this Nonconformity ariseth are ill grounded and that the Government of the Church with the Service thereof as now established is the best that is any where extant and most effectual to the Preservation of the Protestant Religion Yet hoping that Clemency and Indulgence may in time wear out those Prejudices and reduce the Dissenters to the Unity of the Church and considering that this Indulgence how necessary soevever cannot be dispensed by any certain Rule but must vary according to the Circumstances of Time and the Temper and Principles of those to whom it is to be granted and His Majesty being the best Judge when and to whom this Indulgence is to be dispensed or as may be most consistent with the publick Peace and without just Cause of Offence to others and to the end His Majesty may be enabled to exercise it with universal Satisfaction Be it Enacted by the King 's Most Excellent Majesty by Advice and with the Consent of the Lords Spiritual and Temporal and Commons in this present Parliament assembled and by the Authority thereof That the King's Majesty may by Letters Patents under the Great Seal or by such other Ways as to His Majesty shall seem meet dispense with one Act or Law made the last Session of this present Parliament Intituled An Act for the Uniformity of Publick Prayers and Administration of the Sacraments and other Rites and Ceremonies and for Establishing the Form of Making and Ordaining and Consecrating Bishops Priests and Deueotis in the Church of England and with any other Laws or Statutes concerning the same or requiring Oaths or Subscriptions or which do enjoin Conformity to the Order Discipline and Worship established in this Church and the Penalties in the said Laws imposed or any of them And may grant â—…fences to such of His Majesty's Subjects of the Protestant-Religion of whose inoffensive and peaceable Disposition His Majesty shall be perswaded to enjoy and use the Exercise of their Religion and Worship though differing from the publick Rule the said Laws and Statutes or any Disabilities Incapacities or Penalties in them or any of them contained or any Matter or Thing to the contrary thereof notwithstanding Provided always and be it Enacted That no such Indulgence Licence or Dispensation hereby to be granted shall extend or be construed to extend to the Tolerating or Permitting the Use or
Ordered that upon Monday morning next this House will debate the whole Matter of his Majesties Speech and these Papers and to consider the Points of Priviledg and what else may arise thereupon The Lords that were appointed to attend his Majesty return with this Answer That his Majesty has appointed this Afternoon at five of the Clock for this House to wait upon him in the Banquetting-house at Whitehall Ordered that all the Judges now in Town shall attend this House on Monday morning next Sir Rob. Sawyer The 3d of March 1672. is the next Clerk reads Die Laine 3. die Marcil 1672. The Lord Chancellor reported That the whole House on Saturday last waited upon his Majesty at Whitehall and presented the humble Address of this House and his Majesty was pleased to return this Answer My Lords It ake this Address of yours very kindly I will always be very affectionate to you â—…nd expect you should stand by me as I will always by you Then the House took into Consideration the whole Matter of his Majesties Speech on Saturday and the three Papers which his Majesty acquainted this House withal and all the said Papers in their order were read and after a long debate the Question being put Whether this House shall in the first place enter into Consideration of giving Advice to his Majesty It was resolved in the Affirmative It is ordered that this Business shall be taken into Consideration to morrow Morning at nine of the Clock the first Business Ordered that the Judges now in Town shall attend to morrow Morning Sir Rob. Sawyer The 4th of March 1672. Clerk reads Next The House took into Consideration the Advice to be given to his Majesty concerning the Addresses made to him from the House of Commons The Addresses of the House of Commons and his Majesties Answer were read and after a long debate the Question being put Whether the King's Answer to the House of Commons in referring the Points now controverted to a Parliamentary way by Bill is good and gracious that being a proper and natural Course for Satisfaction therein It was resolved in the Affirmative Sir Rob. Saywer The 8th of March 1672. Clerk reads Die Sabbati 80 die Marcii 1672. His Majesty in his Royal Throne adorned with his Crown and Regal Ornaments commanded the Gentleman Usher of the Black Rod to give notice to the House of Commons that they attend his Majesty presently The Commons being come with their Speaker his Majesty made this short Speech following My Lords and Gentlemen Yesterday you presented me an Address as the best means for the satisfying and composing the Minds of my Subjects to which I freely and readily agreed and I shall take care to see it performed accordingly I hope on the other side you Gentlemen of the House of Commons will do your part for I must put you in mind it is near five Weeks since I demanded a Supply and what you Voted unanimously upon it did both give Life to my Affairs at Home and dishearten mine Enemies abroad but the seeming delay it hath met withal since hath made them to take new Courage and they are now preparing for this next Summer a greater Fleet as they say than ever they have had yet so that if the Supply be not very speedily dispatcht it will be altogether ineffectual and the Safety Honour and Interest of England must of necessity be exposed Pray lay this to heart and let not the Fears and Jealousies of some draw an inevitable Ruin upon us all My Lords and Gentlemen If there be any Scruple remaining with you concerning the Suspension of Penal Laws I here faithfully Promise you That what has been done in that particular shall not for the future be drawn either into Consequence or Example And as I daily expect from you a Bill for my Supply so I assure you I shall as willingly receive and pass any other you shall offer me that may tend to the giving you satisfaction in all your just Grievances Next my Lord Chancellor reported That both Houses waited upon the King yesterday and presented him with the Address against the growth of Popery and his Majesty has been pleased to return this Answer My Lords and Gentlemen I do heartily agree with you in your Address and shall give speedy Order to have it put in Execution there is one part to which I believe it is not your Intention that it should extend for I can scarce say those are in my pay that are presently to be imployed abroad but as for all other parts I shall take care it shall be done as you desire After which the Lord Chancellor said he had somewhat more to impart to the House by the Kings Command which was That his Majesty last night having spoken with several Members of both Houses found some dissatisfaction remaining concerning his Answer to their Address in the particular of the Officers to be employed abroad of which number he had five or six that were of the best Officers of France and Flanders and being his â—…wn Subjects he had been very sollicitous to get but if that bred any umbrage the King commanded him to let them know that he resolves to give both his Houses full satisfaction to their desires There was another particular that the Lord Chancellor said he thought fit to acquaint them with which though it was by his Majesty's leave yet it was not by his Command however he thought it his duty to acquaint the House with it Mr. Secretary Coventry intending to acquaint the House of Commons with the same That his Majesty had the last night in pursuance of what he then intended and declared this morning concerning the suspension of Penal Laws not being for the future drawn either into Consequence or Example caused the Original Declaration under the Great Seal to be cancelled in his presence whereof himself and several other Lords of the Council were Witnesses Sir Rob. Sawyer Turn to the 10th of March 1672. Clerk reads Die Lune decimo die Marcil 1672. Ordered That what my Lord Chancellor said on Saturday last concerning his Majesty's causing the vacating his Indulgence under the Great Seal of Enggland shall be entred into the Journal-Book of this House as on Saturday last Sir Rob. Sawyer We shall now come to that which past in the Parliament in 1685. Read the 9th of November 1685. The Journal of the Lords 1685. put in Clerk Reads His Majesty being on his Royal Throne adorned with his Regal Robes and Crown the Lords being in their Robes also commanded the Gentleman Usher to give notice to the House of Commons that they immediately attend his Majesty who being come his Majesty made the following Speech My Lords and Gentlemen After the Storm that seemed to be coming upon us when we parted last I am glad to meet you all again in so great peace and quietness God Almighty be praised by whose blessing that Rebellion was suppressed but
to distribute this Declaration in all their Churches which was to tell the People they ought to be under no Law in this Case which surely was a very great Pressure both in point of Law and Conscience too they lying under such Obligations to the contrary as they did With submission to your Lordship and you Gentlemen of the Jury If they did deliver this Petition Publishing of it I will not talk of or there has been no proof of a Publication but a delivering of a Petition to his Majesty in the most secret and decent manner that could be imagined My Lords the Bishops are not guilty of the Matter Charged upon them in this Information it has been expresly proved that they did not go to disperse it abroad but only deliver'd it to the King himself And in short my Lord if this should be a Libel I know not how sad the Condition of us all would be it we may not Petition when we suffer Mr. Finch My Lord I Challenge them to shew us any one Instance of such a Declaration such a General Dispensation of Laws from the Conquest till 1672. The first Umbrage of such a thing is that of 〈◊〉 1662 but your Lordship heâ—…s the Declaration of the Parliament upon it Before that as there was no such thing so your Lordship sees what the Parliament did to enable the King not to do this thing but something like it in Richard the Seconds Time where you see the Parliament did give the King a Power to Dispense with the Statute of Provisors for a time but at the same time declared that very Grant of their own to be a Novelty and that it should not be drawn into Consequence or Example My Lord we shall leave it upon this Point to suspend Laws is all one as to abrogate Laws for so long as a Law is suspended whether the Suspension be Temporary or whether it be for ever whether it be at once or at several times the Law is abrogated to all Intents and Purposes But the Abrogation of Laws is part of the Legislature that Legislative Power is lodged as I said before and I could never find it otherwise in all our Law in King Lords and Commons Ld. Ch. Iust. You did open that before Mr. Finch Mr. Finch With this my Lord That my Lords the Bishops finding this Order made upon them to publish this Declaration did what in Duty they were bound to do and unless 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 seditious Libel with an intent to stir up Sedition among the People We rely upon it My Lords the Bishops can never be found Guilty upon this Information Ld. Ch. Iust. Have you now done Gentlemen Mr. Finch Yes my Lord till they give us further occasion if they have any other Evidence to offer we must Answer it if not this is the Answer we give to what they have said Mr. Solicit Gen. We make no Bargain with you If you have done say so Ld. Ch. Iust. You must know that you are not to have the last word Mr. Solicit Gen. You have been three hours already if you have any more to say pray conclude Mr. Finch If they say they have no more Evidence then we know what we have to do Ld. Ch. Iust. If you do say any thing more pray let me advise you one thing don't say the same thing over and over again for after so much time spent it is â—…irksome to all Company as well as to me Mr. Finch My Lord we have no more Evidence to offer to your Lordship at present unless they by offering new Evidence give us occasion to Reply upon them Ld. Ch. Iust. Gentlemen you shall 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 Act of Parliament that Foreigners should have a Free Trade in the City of London notwithstanding the Franchises of London after the Parliament rose the King issued out his Proclamation forbidding the Execution of that Law and Commanding that it should be in Suspence Usque ad Proximum Parliamentum yet that was held to be against Law. Ld. Ch. Iust. Sir Robert Sawyer that which you are to look to is the publishing of this Paper and whether it be a Libel or no. And as to the business of the Parliaments you mentioned they are not to the purpose Sir Rob. Sawyer My Lord I say I would put it where the Question truly lyes if they don't dispute the Point then we need not labour it but I dont know whether they will or no and therefore I beg your Lordships favour to mention one Case more and that is upon the Statute of 31 Hen. 8. cap. 8. Which enables the King by Proclamation in many Cases to create the Law which Statute was repealed by 1. Edw. 6. cap. 12. That very Act does recite that the Law is not to be altered or restrained but by Act of Parliament and therefore the Parliament enables the King to do so and so But that was such a Power that the Parliament thought not fit to continue and it was afterwards Repealed but it shews that at that time the Parliament was of the same Opinion as to this Matter that other Parliaments have been since Mr. Sommers My Lord I would only mention the great Case of Thomas and Sorrel in the Exchequer Chamber upon the validity of a Dispensation of the Statute of Edward the Sixth touching Selling of Wine There it was the Opinion of every one of the Judges and they did lay it down as a setled Position that there never could be an Abrogation or a Suspension which is a Temporary Abrogation of an Act of Parliament but by the Legislative Power That was a Foundation laid down quite thorough the debate of that Case Indeed it was disputed how far the King might dispense with the Penalties in such a particular Law as to particular Persons but it was agreed by all that the King had no power to suspend any Law And my Lord I dare Appeal to Mr. Attorney General himself whether in the Case of Godden and Hales which was lately in this Court to make good that Dispensation he did not use it as an Argument then that it could not be expounded into a Suspension He admitted it not to be in Kings power to suspend a Law but that he might give a Dispensation to a particular Person was all that he took upon him to justifie at that time My Lord by the Law of all civilized Nations if the Prince does require something to be done which the Person who is to do it takes to be unlawful
it is not only lawful but his Duty Rescribere Principi this is all that is done here and that in the most humble manner that could be thought of your Lordship will please to observe how far it went how careful they were that they might not any way justly offend the King. They did not interpose by giving advice as Peers they never stirr'd till it was brought home to themselves when they made their Petition all they beg is that it may not so far be insisted upon by his Majesty as to oblige them to read it whatever they thought of it they do not take upon them to desire the Declaration to be revoked My Lord as to Mattters of Fact alledged in the said Petition that they are perfectly true we have shewn by the Journals of both Houses In every one of those Years which are mentioned in the Petition this Power of Dispensation was considered in Parliament and upon debate Declared to be contrary to Law there could be no Design to diminish the Prerogative because the King hath no such Prerogative Seditious my Lord it could not be nor could possibly stir up Sedition in the minds of the People because it was presented to the King in private and alone false it could not be because the Matter of it is true There would be nothing of Malice for the occasion was not sought the thing was pressed upon them and a Libel it could not be because the intent was innocent and they kept within the bounds set by the Act of Parliament that gives the Subject leave to apply to his Prince by Petition when he is agrieved Mr. Att. Gen. Have you done Gentlemen Mr. Finch We have done Sir. Mr. Att. Gen. My Lord I shall be a great deal more merciful to your Lordship and the Jury than they have been who have spent these four hours in that which I think is not pertinent to the Case in Question They have let themselves into large Discourses making great Complaints of the Hardships put upon my Lords the Bishops by the Order of Councel to read his Majesties Declaration and putting these words into the Information of Seditious Malicious and Scandalous But my Lord I admire that Sir Robert Sawyer should make such Reflections and Observations upon these words when I am sure he will scarce find any one of his own exhibiting that has so few of those aggravating words as this has and therefore that might have been very well spared especially by him In the next place 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 Person else whatsoever But however I am sure our Religion teaches us not to preserve our Religion or our Lives by any illegal Courses and the Question is whether the Course that my Lords the Bishops have taken to preserve as they say our Religion be Legal or not if it be not Legal then I am sure our Religion will not justifie the using such a Course for never so good an End. My Lord for the thing it self I do admire that they in so long a time and search that they have made should not which I expected produce more Presidents of such a Paper as this is They challenge us to shew that ever there was any such Declaration as this I 'le turn the same Challenge upon them Shew me any one instance that ever so many Bishops did come under pretence of a Petition to reflect upon the King out of Parliament Sir Robert Sawyer Is that your way of Answering Mr. Attorney Mr. Attorney General Pray Sir Robert Sawyer you have had your time don't interrupt us sure we have as much right to be heard as you Lord Chief Iustice. You have been heard over and over again Sir Robert Sawyer already Sir Robert Sawyer My Lord I don't intend to interrupt him Mr. Solicitor General We cannot make them be quiet they will still be chopping in upon us Mr. Attorney General That is an Art that some People have always practised not to permit any body to speak but themselves But my Lord I say that those few Instances that they have produced are nothing at all to this Matter that is now upon Trial before your Lordship and this Jury nay they are Evidences against them for they are only matters transacted in Parliament which are no more to be applied to this thing that is in Controversy now than any the most remote matter that could be thought of and though they have gone so 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 last they have descended down But my Lord I say that all the talk of Richard the Seconds time is wholly out of the Case truly I do not doubt but that in Richard the Seconds time they might find a great many Instances of some such sort of Petitioning as this for our Histories tell us that at that time they had 40000 Men in Arms against the King and we know the troubles that were in that Kings Reign and how at length he was deposed but certainly there may be found Instances more applicable to the Case than those they produce as for those in King Charles the Seconds time do they any ways justifie this Petition for now they are 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 shew any thing more than some Debates in the House of Commons And at last an Address an Answer by the King a Reply of the Commons and then the thing dies Pray my Lord is a Transaction in the House of Commons a Declaration of Parliament Sure I think no one will affirm that any thing can be a Declaration of Parliament unless he that is the Principal part Concurs who is the King for if you speak of the Court of Parliament in a Legal sense you must speak of the whole Body King Lords and Commons and a Declaration in Parliament must be by all the whole Body and that is properly an Act of Parliament Why then they come to the year 1672 where your Lordship observes that the late King did insist upon his Right for after the Dispute which was in 1662 his Majesty did issue out another Declaration and when it comes to be debated in Parliament he insists upon his Right in Ecclesiastical Matters and though his Declaration was Cancelled yet there is no formal Disclaimer of the Right My Lord after all how far these things that they have offered may work as to the point that they have debated I shall not now meddle with it nor give your Lordship any trouble about it because it is not at all pertinent to the Case in question for I do after all this time and pains that they have spent take leave to say
that these Gentlemen have spent all this time to no purpose Lord Ch. Iust. Yes Mr. Attorney I 'le tell you what they offer which it will lie upon you to give an Answer to They would have you shew how this has disturbed the Government or diminished the Kings Authority Mr. Att. Gen. Whether a Libel be true or not as to the matter of Fact was it ever yet in any Court of Justice permitted to be made a question whether it be a Libel or not Or whether the Party be punishable for it And therefore I wonder to hear these Gentlemen to say that because it is not a false one therefore 't is not a Libel Suppose a Man should speak scandalous Matter of any Noble Lord here or of any of my Lords the Bishops and a Scandalum Magnatum be brought for it though that which is spoken has been true yet it has been the Opinion of the Courts of Law that the Party cannot justifie it by reason it tends to the disturbing of the Peace to publish any thing that is matter of Scandal The only thing that is to be lookt into is whether there be any thing in this Paper that is Reflecting and Scandalous and not whether it be true or no for if any Man shall Extra-Iudicially and out of a Legal Course and way reflect upon any of the great Officers of the Kingdom nay if it be but upon any Inferior Magistrate he is to be punished and is not to make his Complaint against them unless he do it in a proper way A Man may Petition a Judge but if any Man in that Petition shall come and tell the Judge Sir you have given an Illegal Judgment against me and I cannot in Honour Prudence or Conscience obey it I do not doubt nor will any Man but that he that should so say would be laid by the Heels though the Judgment perhaps might be illegal If a Man shall come to Petition the King as we all know the Council Doors are thronged with Petitioners every day and Access to the King by Petition is open to every body the most Inferior Person is allowed to Petition the King but because he may do so may he therefore suggest what he pleases in his Petition shall he come and tell the King to his Face what he does is Illegal I only speak this because they say in this Case his Majesty gave them leave to come to him to deliver their Petition but the King did not understand the Nature of their Petition I suppose when he said he gave them leave to come to him My Lord for this Matter we have Authority enough in our Books particularly there is the Case of Wrenham in my Lord Hobart the Lord Chancellor had made a Decree against him and he Petitioned the King that the Cause might be re-heard and in that Petition he Complains of Injustice done him by my Lord Chancellor and he put into his Petition many reflecting things this my Lord was punished as a Libel in the Star Chamber and in that Book it was said that though it be lawful for the Subject to Petition the King against any Proceedings by the Judges yet it must not be done with Reflections nor with Words that turn to the Accusation or Scandal of any of the Kings Magistrates or Officers and the Justice of the Decree is not to be questioned in the Case for there Wrenham in his Defence would have opened the particulars wherein he thought the Decree was unjust but that the Court would not meddle with nor would allow him to justifie for such Illegality in the Decree so in this Case you are not to draw in question the truth or falsehood of the Matter complained against for you must take the way the Law has prescribed and prosecute your Right in a Legal Course and not by Scandal and Libelling My Lord there is a great deal of difference between not 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 Expressions telling him Sir you Act illegally you require of us that which is against Prudence Honour or Conscience as my Lords the Bishops are pleased to do in this Petition of theirs I appeal to any Lord here that if any Man should give him such Language either by Word of Mouth or Petition whether he would bear it without seeking satisfaction and 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 Haâ—…angue that hath been made is it not apparent that the taking this Liberty to Canvas and dispute the Kings Power and Authority and to Censure â—…s Actions possess the People with strange Opinions and raises Discontents and Jealousies as if the free Course of Law were restrained and Arbitrary Will and Pleasure set up instead of it My Lord there is one thing that appears upon the Face of the Information which shews this not to be the right Course and if my Lords the Bishops had given themselves the opportunity of reading the Declaration seriously they would have found in the end of the Declaration that the Ring was resolved to call a Parliament in November might not my Lords the Bishops have acquiesced under their passive Obedience till the Parliament met But nothing would serve them but this and this must be done out of Parliament for which there is no President can be shewn and this must be done in such a manner as your Lordship sees the Consequence of by your Trouble of this Day There is one thing I forgot to speak to they tell us that it is laid Malicious and Seditious and there is no Malice or Sedition found we know very well that that follows the Fact those things arise by Construction of Law out of the Fact. If the thing be illegal the Law says it is Seditious a Man shall not come and say he meant no harm in it That was the Case of Williams in his treasonable Book says he I only intended to warn the King of the Danger approaching and concludes his Book with God save the King but no Man will say that a good Preface at the beginning or a good Prayer at the end should excuse Treason of Sedition in the Body of a Book if I meet another Man in the Street and kill him though I never saw him in my Life the Indictment is that it was ex Malitia Praecogitata as it often happens that a Person kills one he never had acquaintance with before and in favorem vitae if the Nature of the Fact be so the Jury are permitted to find according to the Nature of the Case but in strictness of Law there is Malice implyed But my Lord I think these Matters are so Common and that is a Point that has been so often setled that the form of the Indictment and Information must
because he wished he had such a Power this must be declared in Parliament that he had no such 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 say they are Declarations in Parliament Then the Chancellor or the Keeper's Speech or the Lord Privy Seals must be a Declaration in Parliament Whoever speaks the Sense of the King if he does not speak that which is Law and Right is questionable for it and several have been Impeached for so doing for they look not upon it as the King's Speech except it be according to Law Nothing can turn upon the Prince but what is Legal if it be otherwise it turns upon him that speaks 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 business in 1672. which with that in 1662. and that in Breda shews That this of the King 's is not such a Novelty but has been done often before In 1672. the King was in Distress 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 Address he asserts it to be his Right and makes his Complaint to the Lords how the Commons had used him for when he gives them a fair Answer 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 present Necessitieâ—… and so he was minded to reâ—… a little at the Instigation 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 Bishopâ—… fancy or imagine that this is to be imposed upon the King or upon the Court for a Declaration in Parliament Then last of all for that in 1685. in this King's time What is it The Commons make an Address to the King and Complain to his Majesty of some of his Officers in his Army that might pretend to have a Dispensation something of that Nature contrary to the Test Act And what is done upon it They make their Application to the King and the King Answers them and that is all But since it is spoken of in the Court I would take notice That it is very well known by the Case of Godding and Hales the Judgment of this Court was against the Opinion of that Address But what sort of Evidence is all this Would you allow all the Addresses of the House of Commons to be Evidence Give me leave to say it my Lord If you suffer these Votes these Copies of Imperfect Bills these Addresses and Applications of one or both Houses to the King to be Evidence and Declarations in Parliament then what will become of the Bill of Exclusion Shall any Body mention that Bill of Exclusion to be a Declaration in Parliament If so then there is Declaration against Declaration the Declaration of the Commons against the Declaration of the Lords I know not what Judgment my Lords the Bishops may be of now concerning those things of Votes and Addresses being Declarations in Parliament but I am sure they have spoken against it heretofore nay I am sure some of them have Preached against it And if my Lords the Bishops have said These are Declarations in Parliament and they are not Declarations in Parliament and if they accuse the King of having done an Illegal thing because he has done that which has been declared in Parliament to be Illegal when it was never so declared then the Consequence is very plain That they are Mistaken sometimes and I suppose by this time they believe it I dare say it will not be denied me That the King may by his Prerogative Royal issue forth his Proclamation it is as essential a Prerogative as it is to give his assent to an Act of Parliament to make it a Law. And it is another Principle which I think cannot be denied That the King may make Constitutions and Orders in Matters Ecclesiastical and that these he may make out of Parliament and without the Parliament If the King may do so and these are his Prerogatives then suppose the King does issue forth his Royal Proclamation and such in effect is this Declaration under the Great Seal in a Matter Ecclesiastical by Virtue of his Prerogative Royal and this Declaration is read in the Council and published to the World and then the Bishops come and tell the King Sir you have issued out an Illegal Declaration being contrary to what has been declared in Parliament when there is no Declaration in Parliament Is not this a Diminishing the King's Power and Prerogative in issuing forth his Declaration And making Constitutions in Matters Ecclesiastical Is not this a questioning of his Prerogative Do not my Lords the Bishops in this Case raise a question between the King and the People Do not they as much as in them lyes stir up the People to Sedition For who shall be Judg between the King and the Bishops Says the King I have such a Power and Prerogative to issue forth my Royal Proclamation and to make Orders and Constitutions in Matters Ecclesiastical and that without the Parliament and out of Parliament Say my Lords the Bishops You have done so but you have no Warrant for it Says the King Every Prince has done it and I have done no more than what is my Prerogative to do But this say the Bishops is against Law. How shall this be tryed Should not the Bishops have had the Patience to have waited till a Parliament came When the King himself tells them he would have a Parliament in November at furthest L. Ch. Iust. Pray Mr. Sollicitor come close to the business 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 spare me a little I am saying when the King himself tells them that he would have a Parliament in November at furthest yet they have no Patience to stay till November but make this Application to him Is not this raising a Question upon the King's Prerogative in issuing forth Declarations and upon the King's Power and Right in Matters Ecclesiastical And when I have said this that my Lords the Bishops have so done If they have raised a Question upon the Right of the King and the Power of the King in Matters Ecclesiastical then they have stirred up Sedition That they have so done is pretty plain and for the Consequence of it I shall appeal to the Case in the 2 Cro. 2. Iac. 1. That is a plain direct Authority for me Mr. Iust. Powel Nay Mr. Sollicitor we all very well know to deny the King's Authority in Temporals and Spirituals as by Act of
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
Parliament is High Treason Mr. Sol. Gen. I carry it not so far Sir we have a Gracious Prince and my Lords the Bishops find it so by this Prosecution But what says that Case It is Printed in 3 Books in Noy 100. in Moor 375. and in Mr. Just. Cro. 371. says that Case The King may make Orders and Constitutions in Matters Ecclesiastical Mr. Iust. Powel But how will you apply that Case to this in hand Mr. Sollicitor Mr. Sol. Gen. I will apply it by and by Sir. I would first shew what it is there is a Convention of the greatest Men in the Kingdom Mr. Iust. Powel Indeed Mr. Sollicitor you shoot at Rovers Mr. Sol. Gen. There iâ—… the Lord Privy Seal the Archbishop of Canterbury and a great many others it is the greatest Aâ—…embly we meet with in our Books and all of them are of this Opinion That the King may make Orders and Constitutions in Matters Ecclesiastical My Lord there is another Authority and that is from the Statute 1 Eliz. which erected the High Commission Court and that Statute was not Introductory of a New Law but Declaratory of the Old Law The King by his Proclamation declares his Sense to do such and such a thing the Court and all Persons there give their Judgment and Opinion upon that Statute That they looked upon it as the grossest thing and the soulest affront to the Prince for any Man to bring into Question that Power of the King in Matters Ecclesiastical 't is said to be a very High Crime Why then my Lord what is done in this Case Mr. Iust. Powel Mr. Sollicitor Pray when you are applying apply that other part of the Case too which says that it was a heinous Offence to raise a Rumor that the King did intend to grant a general Toleration and is there any Law since that has changed it Mr. Sollicitor Mr. Sol. Gen. In the main Judgment goes another way as for that part it was personal to the Prince that then was of whom they had Scandalously reported that he intended to do such a thing they look'd upon it as a Scandal to King Iames that it was a sowing Sedition and stirring up People against the Government and that will come up to our Case for as some Men do it on the right side others do it on the left and whoever he be that endeavours to bring a dislike of the King in the People that is moving Sedition against the Prince but that is personal to the Prince himself and does not go to his Successors Now my Lord I come to that which is very plain from the Case of De Libellis Famosis If any Person 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 said to be done by the Government be Legal or no but whether the party have done such an Act. If the King have a Power for still I keep to that to Issue forth Proclamations to his Subjects and to make Orders and Constitutions in matters Ecclesiastical if he do Issue 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 Question I say 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 Case in the Fifth Report for it says If a Person does a thing that is Libellous you shall not Examine the Fact but the Consequence whether it tended to stir up Sedition against the Publick or to stir up Strife between Man and Man in the Case of private Persons as if a Man should say of a Judge He has taken a Bribe and I will prove it this is not to be sent in a Letter but they must take a regular way to Prosecute it according to Law. If it be so in the Case of an Inferior Magistrate what must it be in the Case of a King to come to the Kings Face and tell him as they do here that he has Acted Illegally doth certainly sufficiently prove the matter to be Libellous What do they say to King they say and admit that they have an aversness for the Declaration and they tell him from whence that aversness doth proceed and yet they insinuate that they had an inclination to Gratify the King and Embrace the Dissenters that were as averse to them as could be with due tenderness when it should be settled by Parliament and Convocation Pray what hath their Convocation to do in this matter L. Ch. Iust. Mr. Sollicitor General I will not interrupt you but pray come to the Business before us Shew us that this is in diminution of the Kings Prerogative or that the King ever had such a Prerogative Mr. Sol. Gen. I will my Lord I am observing what it is they say in this Petition They tell the King it is inconsistent with their Honor Prudence and Conscience to do what he would have them to do and if these things be not reflective upon the King and Government I know not what is this is not in a way of Judicature possibly it might have been allowable to Petition The King to put it into a course of Justice whereby it may be Tryed but alas there is no such thing in this matter It is not their desire to put it into any Method for Tryal and so it comes in the Case De Libellis Famosis for by this way they make themselves Judges which no Man by Law is permitted to do My Lords the Bishops have gone out of the way and all that they have offered does not come home to justify them and therefore I take it under Favour that we have made it a good Case for the King we have proved what they have done and whether this be Warrantable or not is the Question Gentlemen that you are to try The whole Case appears upon Record the Declaration and Petition are set forth and the Order of the King and Council When the Verdict is brought in they may move any thing what they please in arrest of Judgment They have had a great deal of Latitude and taken a great deal of Liberty But truly I apprehend not so very pertinently But I hope we have made a good Case of it for the King and that you Gentlemen will give us a Verdict Mr. Iust. Holloway Mr. Sollicitor there is one thing I would seign be satisfied in you say the Bishops have no Power to Petition the King. Mr. Soll. Gen. Not out of Parliament Sir. Mr. Iust. Holloway Pray give me leave Sir Then the King having made such a Declaration of a General Toleration and Liberty of Conscience and afterwards he comes and requires the Bishops to disperse this Declaration this they say out of a tenderness of Conscience they cannot do because they apprehend it contrary to Law and contrary to their