be a Libel although it 〈◊〉 true that they did so deliver it First my Lord there is a little disingenuity offered to my Lords the Bishops in only setting forth part and noâ—… the whole in only reciting the Body 〈◊〉 not the Prayer But my Lord with your Lordships favour taking the Petitionary part and adding it to the other it quite alters the Nature of the thing for it may be a Complaint without seeking redress might be an 〈◊〉 â—…atter but here taking the whole together it appears to be a Complaint of a Grievance and a desire to be eased of it With your Lordships favour the Subjects have a right to Petition the King in all their Grievances so say all our Books of Law and so says the Statute of the Thirteenth of the late King They may Petition and come and deliver 〈◊〉 â—…tion under the number of ten as heretofore they might have done says the Statute so that they all times have had a right so to do and indeed if they had not it were the most lamentable thing in the World that Men must have Grievances upon them and yet they not to be admitted to seek Relief in an humble â—…ay Now my Lord this is a Petition setting forth a Grievance and praying his Majesty to give Relief And what is this Grievance It is that Command of his by that Order made upon my Lords the Bishops to distribute the Declaration and cause it to be read in the Churches And pray my Lord let us consider what the Effects and Consequences of that Distribution and Reading iâ—… It is to tell the People that they need not submit to the Act of Unifarmity noâ—… to any Act of Parliament made about Ecclesiastical Matters for they are suspended and dispensed with this my Lords the Bishops must do if they obey this Order but your Lordship sees if they do it they lie under an Anathema by the Statute of 1 Eliz. for there they are under a Curse if they do not look to the preservation and observation of that Act But this Command to Distribute and Read the Declaration whereby all these Laws are dispensed with is to let the People know they will not do what that Act requires of them Now with your Lordships favour my Lords the Bishops lying under this pressure the weight of which was 〈◊〉 grievous upon them they by Petition apply to the King to be eased of it which they might do aâ—… Subjects besides my Lord they are Peers of the Realm and were most of them sitting as such in the last Parliament where as you have heard it was declared such a Dispensation could not be and then in what a Case should they have been if they should have distributed this Declaration which was so coâ—… to their own Actings in Parliament What could they have answered for themselves had they thus contributed to this Declaration when they had themselves before declared that the King could not dispense And that was no new thing for it had been so declared in a Parliament before in two Sessions of it in the late Kings Reign within a very little time one of another and such a Parliament that were so liberal in their Aides in the Crown that a Man would not think they should go about 〈◊〉 deprive the Crown of any of its Rights it was a Parliament that did do as great services for the â—…own as â—…ver any did and therefore there is no reason to suspect that if the King 〈◊〉 had such a power they would have appeared so earnest against it But my Lord if your Lordship pleases these are not the beginnings of this matter for we have shewed you from the Fifteenth of Richard the Second that there was a power granted by the Parliament to the King to dispense with a particular Act of Parliament which argues that it could not be without an Act of Parliament And in 1662 't is said expresly that they cannot be dispensed with but by an Act of Parliament 'T is said so again in 1672 the King was then pleased to assume to himself such a power as is pretended to in this Declaration 〈◊〉 yet upon Information from his Houses of Parliament the King declared himself satisfied that he had no such power Cancelled his Declaration and promised that it should not be drawn into Consequence or Example And so the Commons by their Protestation said in Richard the Seconds time That it was a Novelty and should not be drawn into Consequence or Example Now my Lord if your Lordship pleases if this matter that was Commanded the Bishops to do were something which the Law did not allow of surely then my Lords the Bishops had all the reason in the World to apply themselves to the King in an humble manner to acquaint him why they could not obey his Commands and to seek relief against that which lay so heavy upon them Truly my Lord Mr. Attorney was very right in the opening of this Cause at first that is That the Government ought not to receive affronts no nor the Inferior Officers are not to be affronted a Justice of Peace so low a Man in Office is not for a Man to say to a Justice of Peace when he is executing his Office that he does not do right is a great Crime and Mr. Attorney said right in it But suppose a Justice of Peace were making of a Warrant to a Constable to do something that was not Legal for him to do if the Constable should Petition this Justice of the Peace and therein set forth Sir you are about to command me to do a thing which I conceive is not Legal surely that would not be a Crime that he was to be punished for for he does but seek relief and shew his Grievance in a proper way and the distress he is under My Lord this is the Bishops Case with submission they are under a distress being Commanded to do a thing which they take not to be Legal and they with all humility by way of Petition acquaint the King with this Distress of theirs and pray him that he will please to give Relief My Lord there is no Law but is either an Act of Parliament or the Common Law for an Act of Parliament there is none for such a power all that we have of it in Parliamentary Proceedings is against it and for the Common Law so far as I have read oâ—…it I never did meet with any thing of such a Nature as a Grant or Dispensation that pretended to dispense with any one whole Act of Parliament I have not so much as heard of any such thing mentioned by any of the Kings Council But here my Lord is a Dispensation that dispenses with a great many Laws at once truly I cannot take upon me to tell how many there may be forty or above for ought I know Therefore my Lord the Bishops lying under such a Grievance as this and under such a Pressure being Ordered
a scandalous matter but it only contains their Reasons whereby they would satisfy his Majesty why they cannot comply in a Concurrence with his Majesty's Pleasure and therefore they humbly beseech the King and beg and request him as the words of it are that his Majesty would be pleased not to insist upon their distributing and reading of this Declaration so the Petitioners on behalf of themselves and the whole Clergy of England beg of the King that he would please not to insist upon it Gentlemen you may observe it that there is nothing in this Petition that contains any thing of Sedition in it and it would be strange this Petition should be Felo de se and by one part of it destroy the other it is laid indeed in the Information that it was with intent and purpose to diminish the King's Royal Authority but I appeal to your Lordship the Court and the Jury whether there be any one word in it that any way touches the King's Prerogative or any tittle of Evidence that has been given to make good the Charge It is an Excuse barely for their non-Complyance with the King's Order and a begging of the King with all Humility and Submission that he would be pleased not to insist upon the reading of his Majesty's Declaration upon these grounds because the Dispensing Power upon which it was founded had been several times in Parliament declared to be against Law and because it was a Case of that Consequence that they could not in Prudence Honour or Conscience concur in it My Lord Mr. Attourny has been pleased to charge in this Information that this is a false malicious and seditious Libel both the falsity of it and that it was malicious and seditious are all Matters of Fact which with Submission they have offered to the Jury no proof of and I make no question but easily to demonstrate the quite contrary For my Lord I think it can be no question but that any Subject that is Commanded by the King to do a Thing which he conceives to be against Law and against his Conscience may humbly apply himself to the King and tell him the Reason why he does not that thing he is commanded to do why he cannot concur with his Majesty in such a Command My Lord that which Mr. Attorney did insist upon in the beginning of this Day and he pretended to cite some Cases for it was that in this Case my Lords the Bishops were not sued as Bishops nor prosecuted for their Religion truly My Lord I do not know what they are sued for else the Information is against them as Bishops it is for an Act they did as Bishops and no otherwise and for an Act they did and do conceive they lawfully might do with relation to their Ecclesiastical Polity and the Government of their People as Bishops The next thing that Mr. Attorney offered was that it was not for a Non-feasance but for a Feasance it is true my Lord it is for a Feasance in making of the Petition but it was to excuse a Non-feasance the not reading according to the Order and this sure was lawful for all the Bishops as Subjects to do and I shall shew it was certainly the duty of my Lords the Bishops or any Peer of the Realm to do the same in a like Case It was likewise said they were prosecuted here for affronting the Government and intermedling with Matters of State but I beg your Lordship and the Jury to consider whether there is one tittle of this mentioned in the Petition or any Evidence given of it the Petition does not meddle with any thing of any Matter of State but refers to an Ecclesiastical Matter to be executed by the Clergy and to a Matter that has relation to Ecclesiastical Causes so that they were not Busybodies or such as meddled in Matters that did not relate to them but that which was properly within their Sphere and Jurisdiction But after all there is no Evidence nor any sort of Evidence that is given by Mr. Attorney that will maintain the least tittle of this Charge and how he comes to leave it upon this sort of Evidence I cannot tell all that it amounts to is That my Lords the Bishops being greived in this manner made this Petition to the King in the most private and respectful manner and for him to load it with such horrid black Epithets that it was done Libellously Maliciously and Scandalously and to oppose the King and Government 't is very hard 't is a Case of a very extraordinary Nature and I believe my Lords the Bishops cannot but conceive a great deal of trouble that they should lie under so heavy a Charge and that Mr. Attorney should draw so severe an Information against them when he has so little Proof to make it out My Lord by what we have to say to it we hope we shall give your Lordship and the Jury Satisfaction that we have done but our Duties supposing here has been a sufficient Evidence of the Fact given which we leave to your Lordship and the Jury My Lord we say in short That this Petition is no more than what any Man if he be Commanded to do any thing might humbly do it and not be guilty of any Crime And my Lord as to the Matter of our Defence it will consist of these Heads First We shall Consider the Matter of this Petition Secondly The Manner of the delivering it according as they have given Evidence here and Thirdly the Persons that have delivered this Petition And we hope to make it appear beyond all question that the Matter contained in this Petition is neither false nor contrary to Law but agreeable to all the Laws of the Land in all Times We shall likewise shew you though that appear sufficiently to you already that the Manner of delivering it was so far from being Seditious that it was in the most secret and private manner and with the greatest Humility and Duty imaginable And then as to the Persons we shall shew you that they are not such as Mr. Attorney says who meddle with Matters of State that are of out their Sphere but they are Persons concerned and concerned in Interest in the Case to make this humble application to the King. And when we have proved all this Matter you will see how strangely we are blackned with Titles and Epithets which we no ways deserve and of which God be thanked there is no Proof For my Lord for the Matter of the Petition we shall consider two things The First is The Prayer which is this They humbly beg and desire of the King on behalf of themselves and the rest of the Clergy that he would not insist upon the Reading and Publishing of this Declaration Surely my Lord there is nothing of Falsity in this nor any thing that is contrary to Law or unlawful for any Man that is pressed to any thing especially by an Order of
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
then and in that first Attempt it was so far from being acknowledged that it was taken notice of in Parliament and declared against So it was in the Years 1662. and 1672. In the Year 62. where there was but the least Umbrage given of such a Dispensing Power although the King had declared in his Speech to the Parliament that he wished he had such a Power which his Declaration before seemed to assume the Parliament was so jealous of this that they immediately made their Application to His Majesty by an Address against the Declaration and they give Reasons against it in their Address One in particular was That the King could not dispense with those Laws without an Act of Parliament There was another Attempt in 1672. and then after His Majesty had in his Speech mentioned his Declaration to them the Parliament there again particularly the House of Commons did humbly address to His Majesty setting forth that this could not be done by Law without an Act of Parliament And your Lordship by and by upon reading the Record will be satisfied what was the Event of all this His Majesty himself was so far pleased to concurr with them in that Opinion that he cancell'd his Declaration tore off the Seal and caused it to be made known to the House of Lords by the Lord Chancellor who by His Majesty's Command satisfied the House of it that His Majesty had broken the Seal and cancell'd the Declaration with this further Declaration which is enter'd in the Records of the House That it should never be drawn into Example or Consequence My Lord The Matter standing thus in respect to the King's Prerogative and the Declarations that had been made in Parliament consider next I beseech you how far my Lords the Bishops were concerned in this Question humbly to make their Application to the King. My Lords the Bishops lying under a Command to publish this Declaration it was their Duty as Peers of the Realm and Bishops of the Church of England humbly to apply themselves to His Majesty to make known their Reasons why they could not obey that Command and they do it with all Submission and all Humility representing to His Majesty what had been declared in Parliament and it having been so declared they could not comply with his Order as apprehending that this Declaration was founded upon that which the Parliament declared to be illegal and so His Majesty's Command to publish this Declaration would not warrant them so to do This they did as Peers and this they had a Right to do as Bishops humbly to advise the King. For suppose my Lord which is not to be supposed in every Case nor do I suppose it in this but suppose that there might be a King of England that should be mis-led I do not suppose that to be the Case now I say but I know it hath been the Case formerly that the King should be environed with Counsellors that had given him evil Advice it has been objected as a Crime against such evil Counsellors that they would not permit and suffer the Great Men of the Kingdom to offer the King their Advice How often do we say in Westminster-Hall That the King is deceived in his Grant There is scarce a Day in the Term but it is said in one Court or other but it was never yet thought an Offence to say so And what more is there in this Case My Lord If the King was mis-informed or under a Mis-apprehension of the Law my Lords as they are Peers and as they are Bishops are concerned in it and if they humbly apply themselves to the King and offer him their Advice where is the Crime My Lord These noble Lords the Defendants had more than an ordinary Call to this for besides the Duty of their Office and the Care of the Church that was incumbent on them as Bishops they were here to become Actors for they were by that Order of Council commanded themselves to publish it and to distribute it to the several Ministers in their several Diocesses with their Commands to read it Therefore they had more than ordinary Reason to concern themselves in the Matter Next We are to consider my Lord in what manner this was done They make their Application to the King by an humble Petition with all the Decency and Respect that could be shewn asking leave first to approach his Person and having leave they offer'd my Lord President the Matter of their Petition that nothing might seem hard or disrespectful or as if they intended any thing that was unfit to be avowed When they had taken all this Care in their Approach and begging leave for it they come secretly to the King in private when he was all alone and there they humbly present this Petition to His Majesty Now how this can be called the Publication of a malicious and seditious Libel when it was but the Presenting of a Petition to the King alone And how it can be said to be with an Intent to stir up Sedition in the People against His Majesty and to alienate the Hearts of his People from him when it was in this private manner delivered to him himself only truly I cannot apprehend My Lord I hope nothing of this can be thought an Offence If the Jury should think that there has been Evidence sufficient given to prove that my Lords the Bishops did deliver this Paper to the King yet that is not enough to make them guilty of this Information unless this Paper be likewise found to be in Diminution of the King 's Royal Prerogative and Regal Authority in dispensing with and suspending of all Laws without Act of Parliament Unless it be found to be a Libel against the King to tell him That in Parliament it was so and so declared And unless the presenting this by way of Petition which is the Right of all People that apprehend themselves aggrieved to approach His Majesty by Petition be a Libelling of the King And unless this humble Petition in this manner presented to the King in private may be said to be a malicious and seditious Libel with an Intent to stir up the People to Sedition Unless all this can be found there is no Man living can ever find my Lords the Bishops guilty upon this Information Therefore my Lord we will go on and make out this Matter that we have opened to your Lordship if Mr. Attorney and Mr. Sollicitor think fit to argue the Points that we have opened Mr. Pollixfen Pray my Lord spare me a Word on the same Side For the first Point It is a Point of Law whether the Matter contained in this Petition be a Libel The King's Council pretend it is so because it says the Declaration is founded upon a Power the Parliament has declared to be illegal But we say that whatsoever the King is pleased to say in any Declaration of his it is not the King 's saying of it that makes
it to be Law. Now we say This Declaration under the Great Seal is not agreeable to the Laws of the Land and that for this Reason Because it does at one Blow set aside all the Law we have in England My Lord If this be denied we must a little debate this matter for they are almost all Penal Laws not only those before the Reformation but since upon which the whole Government both in Church and State does in a great measure depend Especially my Lord in Matters of Religion they are all Penal Laws For by the Act of Uniformity which my Lords the Bishops are sworn to observe and adjured by an express Clause in the Act No Man is to preach unless he be Episcopally ordained no Man is to preach without a Licence If all this be set aside I confess then it will go very far into the whole Ecclesiastical Government If this be denied we are ready to argue that too L. C. I. They are to do so still Mr. Pollixfen My Lord I am sure the Consequence is otherwise if this Declaration signifie any thing And if it be the Will of the King my Lord the Will of the King is what the Law is If so be the King 's Will be not consonant to the Law it is not obliging My Lord The Cases that we have had of Dispensations are all so many strong Authorities against a general or particular Abrogation My Lord that is a Matter of Law which if it fall out to be any way doubtful it will be fit to have it debated and setled If they will say that the Penal Laws in Matters Ecclesiastical can be abrogated or nulled or made void pro tempore or for Life without the meeting of the King and People in Parliament I must confess they say a great thing as it is a Point of great Concern but I think that will not be said And all that has been ever said in any Case touching Dispensations proves quite the contrary and asserts what I affirm For Why should any Man go about to argue that the King may dispense with this or that particular Law if at once he can dispense with all the Law by an undoubted Prerogative This is a Point of Law which we insist upon and are ready to argue with them but we will go on with the rest of those things that we have offer'd And first we will read the Act of Uniformity made 1 Eliz. that Clause of it where they are so strictly charged to see to the Execution of that Law. This Act my Lord by the Act of Uniformity made in the Beginning of the late King's Reign is revived with all the Clauses in it relating to this Matter If then this be a Duty incumbent upon them and their Oaths require it of them and if they find that the Pleasure of the King in his Declaration is that which is not consonant to this Law what can they do Can any thing be more humble or done with a more Christian Mind than by way of Petition to inform the King in the Matter For I never thought it nor hath it ever sure been thought by any body else to be a Crime to petition the King For the King may be mistaken in the Law so our Books say and we every Day in Westminster-Hall argue against the King's Grants and say He is deceived in his Grants It is the great Benefit and Liberty which the King gives to his Subjects to argue the Legality or Illegality of his Grants My Lord When all this is done to make this to be a Libel by putting in the Words Malicious Seditious Scandalous and with an Intent to raise Sedition would be pretty hard My Lord We pray that Clause of the Statute may be read Mr. Soll. Gen. What for Mr. Pollixfen It is a general Law and therefore the Court will take notice of it and we pray the Jury may hear it read Mr. Soll. Gen. I agree it to be as Mr. Pollixfen has opened and I agree it to be as Sir Robert Sawyer has opened it Mr. S. Pemberton My Lord We shall put it upon a short Point My Lords the Bishops are here accused of a Crime of a very heinous nature as can be they are here branded and stigmatized by this Information as if they were seditious Libellers when my Lord it will in truth fall out that they have done no more than their Duty their Duty to God their Duty to the King and their Duty to the Church For in this Case that which we humbly offer to your Lordship and insist upon it as very plain is this That the Kings of England have no power to suspend or dispense with the Laws and Statutes of the Kingdom that establish our Religion That is it which we stand upon for our Defence And we say That such a Dispensing Power with Laws and Statutes is a thing that strikes at the very Foundation of all the Rights Liberties and Properties of the King's Subjects whatsoever If the King may suspend the Laws of the Land which concern our Religion I am sure there is no other Law but he may suspend And if the King may suspend all the Laws of the Kingdom what a Condition are all the Subjects in for their Lives Liberties and Properties All at Mercy My Lord The King 's Legal Prerogatives are as much for the Advantage of his Subjects as of himself and no Man goes about to speak against them But under pretence of Legal Prerogatives to extend the Power of the King to support a Prerogative that tends to the Destruction of all his Subjects their Religion and Liberties in that I think they do the King no Service who go about to do it But now we say with your Lordship's Favour that these Laws are the great Bulwark of the Reformed Religion they are in truth that which fenceth the Religion and Church of England and we have no other Humane Fence besides They were made upon a Fore-sight of the Mischief that had and might come by false Religions in this Kingdom and they were intended to defend the Nation against them and to keep them out particularly to keep out the Romish Religion which is the very worst of all Religions from prevailing among us and that is the very Design of the Act for the Tests which is intituled An Act to prevent Dangers that may happen from Popish Recusants My Lord If this Declaration should take effect what would be the End of it All Religions are let in let them be what they will Ranters Quakers and the like nay even the Roman Catholick Religion as they call it which was intended by these Acts of Parliament and by the Act of Uniformity and several other Acts to be kept out of this Nation as a Religion no way tolerable nor to be endured here If this Declaration take effect that Religion will stand upon the same Terms with the Protestant Religion Suspend those Laws and that Romish
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
is always for the Good of the People but I say those Concessions must not be made Law for that is reserved in the King's Breast to do what he pleases in it at any time The truth of it is the Dispensing Power is out of the Case it is only a Word used in the Petition but truly I will not take upon me to give my Opinion in the Question to determine that now for it is not before me The only Question before me is and so it is before you Gentlemen it being a Question of Fact Whether here be a certain Proof of a Publication And then the next Question is a Question of Law indeed Whether if there be a Publication proved it be a Libel Gentlemen upon the point of the Publication I have summed up all the Evidence to you and if you believe that the Petition which these Lords presented to the King was this Petition truly I think that is a Publication sufficient if you do not believe it was this Petition then my Lords the Bishops are not Guilty of what is laid to their Charge in this Information and consequently there needs no Inquiry whether they are Guilty of a Libel But if you do believe that this was the Petition they presented to the King then we must come to Inquire whether this be a Libel Now Gentlemen any thing that shall disturb the Government or make Mischief and a Stir among the People is certainly within the Case of Libellis Famosis and I must in short give you my Opinion I do take it to be a Libel Now this being a point of Law if my Brothers have any thing to say to it I suppose they will deliver their Opinions Mr. Iust. Holloway Look you Gentlemen it is not usual for any Person to say any thing after the Chief Justice has summed up the Evidence it is not according to the Course of the Court but this is a Case of an Extraordinary Nature and there being a point of Law in it it is fit every body should deliver their own Opinion The Question is whether this Petition of my Lords the Bishops be a Libel or no Gentlemen the End and Intention of every Action is to be Considered and likewise in this Case we are to Consider the Nature of the Offence that these Noble Persons are Charged with it is for delivering a Petition which according as they have made their Defence was with all the Humility and Decency that could be So that if there was ill Intent and they were not as it is nor can be pretended they were Men of Evil Lives or the like to deliver a Petition cannot be a Fault it being the Right of every Subject to Petition If you are satisfied there was an ill Intention of Sedition or the like you ought to find them Guilty but if there be nothing in the Case that you find but only that they did deliver a Petition to save themselves harmless and to free themselves from blame by shewing the Reason of their Disobedience to the King's Command which they apprehended to be a Grievance to them and which they could not in Conscience give Obedience to I cannot think it is a Libel It is left to you Gentlemen but that is my Opinion L. Oh. Iust. Look you by the way Brother I did not ask you to sum up the Evidence for that is not usual but only to deliver your Opinion whether it be a Libel or no. Mr. Iust. Powel Truly I cannot see for my part any thing of Sedition or any other Crime fixed upon these Reverend Fathers my Lords the Bishops For Gentlemen to make it a Libel it must be False it must be Malicious and it must tend to Sedition as to the Falshood I see nothing that is offered by the King's Councel nor any thing as to the Malice It was preferred with all the Humility and Decency that became the King's Subjects to approach their Prince with Now Gentlemen the Matter of it is before you you are to Consider of it and it is worth your Consideration they tell his Majesty It is not out of aversness to pay all due Obedience to the King nor out of a want of tenderness to their dissenting Fellow Subjects that made them not perform the Command imposed upon them but they say That because they do conceive that the thing that was Commanded them was against the Law of the Land therefore they do desire his Majesty that he would be pleased to forbear to insist upon it that they should perforâ—…â—…hat Command which they take to be Illegal Gentlemen we must Consider what they say is Illegall in it they say they apprehend the Declaration is Illegal because it is founded upon a Dispensing Power which the King claims to Dispense with the Laws concerning Ecclesiastical Affairs Gentlemen I do not remember in any Case in all our Law and I have taken some Pains upon this Occasion to look into it that there is any such Power in the King and the Case must turn upon that in short If there be no such Dispensing Power in the King then that can be no Libel which they presented to the King which says that the Declaration being founded upon such a pretended Power is Illegal Now Gentlemen this is a Dispensation with a Witness it amounts to an Abrogation and utter Repeal of all the Laws for I can see no difference nor know of none iâ—… Law between the King's Power to Dispense with Laws Ecclesiastical and his Power to Dispense with any other Laws whatsoever If this be once allowed of there will need no Parliament all the Legislature will be in the King which is a thing worth Considering and I leave the Issue to God and your Consciences Mr. Iust. Allybone The single Question that falls to my share is to give my Sense of this Petition whether it shall be in Construction of Law a Libel in it self or a thing of great Innocence I shall endeavour to express my self in as plain Terms as I can and as much as I can by way of Proposition And I think in the first place That no Man can take upon him to write against the actual Exercise of the Government unless he have leave from the Government but he makes a Libel be what he writes true or false for if once we come to impeach the Government by way of Argument 't is the Argument that makes it the Government or not the Government So that I lay down that in the first place That the Government ought not to be impeached by Argument nor the Exercise of the Government shaken by Argument because I can manage a Proposition in it self doubtful with a better Pen than another Man This say I is a Libel Then I lay down this for my next Position That no private Man can take upon him to write concerning the Government at all for what has any private Man to do with the Government if his Interest be not stirred or
and full enjoyment of all their possessions without any molestation or disturbance whatsoever We do likewise Declare that it is Our Royal Will and Pleasure that from henceforth the execution of all and all manner of Penal-Laws in matters Ecclesiastical for not coming to Church or not receiving the Sacrament or for any other Non-conformity to the Religion Established or for or by reason of the Exercise of Religion in any manner whatsoever be immediately Suspended and the further Execution of the said Penal-Laws and every of them is hereby Suspended And to the end that by the Liberty hereby granted the Peace and Security of Our Government in the practice thereof may not be endangered We have thought fit and do hereby streightly Charge and Command all Our Loving Subjects that as We do freely give them leave to meet and serve God after their own way and manner be it in Private Houses or places purposely hired or built for that use so that they take especial care that nothing be preach'd or taught amongst them which may any ways tend to alienate the Hearts of Our People from Us or Our Government and that their Meetings and Assemblies be Peaceably Openly and Publickly held and all Persons freely admitted to them and that they do signifie and make known to some one or more of the next Justices of the Peace what place or places they set apart for those uses And that all Our Subjects may enjoy such their Religious Assemblies with greater Assurance and Protection We have thought it requisite and do hereby Command that no disturbance of any kind be made or given unto them under pain of Our Displeasure and to be further proceeded against with the uttermost severity And forasmuch as We are desirous to have the benefit of the Service of all our loving Subjects which by the Law of Nature is inseparably annexed to and inherent in Our Royal Person and that none of Our Subjects may for the future be under any discouragement or disability who are otherwise well inclined and fit to serve Us by reason of some Oaths or Tests that have been usually administred on such Occasions We do hereby further Declare That it is Our Royal Will and Pleasure that the Oaths commonly called the Oaths of Supremacy and Allegiance and also the several Tests and Declarations mentioned in the Acts of Parliament made in the 25th and 30th years of the Reign of Our late Royal Brother King Charles the Second shall not at any time hereafter be required to be taken declared or subscribed by any Person or Persons whatsoever who is or shall be employed in any Office or Place of Trust either Civil or Military under Us or in Our Government And We do further Declare it to be our Pleasure and Intention from time to time hereafter to grant Our Royal Dispensations under Our Great Seal to all Our loving Subjects so to be employed who shall not take the said Oaths or Subscribe or Declare the said Tests or Declarations in the above-mentioned Acts and every of them And to the end that all our Loving Subjects may receive and enjoy the full benefit and advantage of Our Gracious Indulgence hereby intended and may be acquitted and discharged from all Pains Penalties Forfeitures and Disabilities by them or any of them incurred or forfeited or which they shall or may at any time hereafter be liable to for or by reason of their Non-conformity or the Exercise of their Religion and from all Suits Troubles or Disturbances for the same We do hereby give Our free and ample Pardon unto all Non-conformists Recusants and other our Loving Subjects for all Crimes and Things by them committed or done contrary to the Penal Laws formerly made relating to Religion and the Profession or Exercise thereof hereby declaring that this Our Royal Pardon and Indemnity shall be as good and effectual to all intents and purposes as if every individual Person had been therein particularly named or had particular Pardons under Our Great Seal which We do likewise Declare shall from time to time be granted unto any Person or Persons desiring the same willing and requiring Our Judges Justices and other Officers to take notice of and obey Our Royal Will and Pleasure herein before Declared And although the Freedom and Assurance We have hereby given in relation to Religion and Property might be sufficient to remove from the Minds of Our Loving Subjects all Fears and Jealousies in relation to either Yet We have thought fit further to Declare That We will maintain them in all their Properties and Possessions as well of Church and Abby-Lands as in any other their Lands and Property whatsoever Et idem Attornatus dicti Domini Regis nunc Generalis pro eodem Domino Rege ulterius dat Curiae hic intelligi informari quod postea scilicet vicesimo septimo die Aprilis Anno Regni dicti Domini Regis nunc c. quarto apud Westmonasterium praedictum in Comitatu Middlesexiae praedicto idem Dominus Rex nunc ex eadem Clementia benigna intentione suis erga subditos suos Regni sui Angliae per Regiam suam Praerogativam aliam Regalem suam Declarationem Intitulatam His Majesties Gracious Declaration gerentem datum eisdem die anno ultimo mentionatis magno sigillo suo Angliae similiter sigillatam publicavit in quâ quidem Declaratione continetur IAMES REX OUR Conduct has been such in all times as ought to have perswaded the World that we are firm and constant to our Resolutions yet that easie People may not be abused by the Malice of crafty wicked Men We think fit to declare that Our Intentions are not changed since the 4th of April 1687. when we issued out Our Declaration for Liberty of Conscience in the following Terms His Majesties Gracious Declaration to all his loving Subjects for Liberty of Conscience IAMES REX IT having pleased Almighty God not only to bring Us to the Imperial Crown of these Kingdoms thro the greatest difficulties but to preserve Us by a more than ordinary Providence upon the Throne of Our Royal Ancestors There is nothing now that We so earnestly desire as to establish Our Government on such a Foundation as may make Our Subjects happy and unite them to Us by Inclination as well as Duty which We think can be done by no means so effectually as by granting to them the free Exercise of their Religion for the time to come and add that to the perfect Enjoyment of their Property which has never been in any case invaded by Us since Our coming to the Crown which being the two things Men value most shall ever be preserved in these Kingdoms during our Reign over them as the truest methods of their Peace and Our Glory We cannot but heartily wish as it will easily be believed that all the People of Our Dominions were Members of the Catholick Church yet we humbly thank Almighty God it is and hath of
long time been Our constant Sense and Opinion which upon divers occasions we have declared That Conscience ought not to be constrained nor People forced in matters of meer Religion It hath ever been directly contrary to Our Inclinations as We think it is to the Interest of Government which it destroys by spoiling Trade depopulating Countries and discouraging Strangers and finally that it never obtained the End for which it was employed And in this we are the more confirmed by the Reflections we have made upon the Conduct of the four last Reigns For after all the frequent and pressing Endeavours that were used in each of them to reduce this Kingdom to an exact Conformity in Religion it is visible the Success has not answered the Design and that the difficulty is invincible We therefore out of Our Princely Care and Affection unto all Our loving Subjects that they may live at ease and quiet and for the Increase of Trade and Encouragment of Strangers have thought fit by Vertue of Our Royal Prerogative to issue forth this Our Declaration of Indulgence making no doubt of the concurrence of Our two Houses of Parliament when We shall think it convenient for them to meet In the first place We do declare That We will protect and maintain Our Archbishops Bishops and Clergy and all other Our Subjects of the Church of England in the free Exercise of their Religion as by Law established and in the quiet and full Enjoyment of all their Possessions without any molestation or disturbance whatsoever We do likewise declare That it is Our Royal Will and Pleasure that from henceforth the Execution of all and all manner of Penal Laws in Matters Ecclesiastical for not coming to Church or not receiving the Sacrament or for any other Nonconformity to the Religion established or for or by reason of the Exercise of Religion in any manner whatsoever be immediately suspended and the further Execution of the said Penal Laws and every of them is hereby suspended And to the end that by the Liberty hereby granted the Peace and Security of Our Government in the Practice thereof may not be endangered We have thought fit and do hereby straitly charge and command all Our loving Subjects that as we do freely give them leave to meet and serve God after their own way and manner be it in private Houses or Places purposely hired or built for that use so that they take especial Care that nothing be preached or taught amongst them which may any ways tend to alienate the hearts of Our People from Us or Our Government And that their Meetings and Assemblies be Peaceably Openly and Publickly held and all Persons freely admitted to them and that they do signifie and make known to some One or more of the next Justice of the Peace what Place or Places they set apart for those Uses And that all our Subjects may enjoy such their Religious Assemblies with greater Assurance and Protection We have thought it requisite and do hereby Command that no disturbance of any kind be made or given unto them under Pain of our Displeasure and to be further proceeded against with the uttermost Severity And forasmuch as We are desirous to have the benefit of the Service of all our Loving Subjects which by the Law of Nature is inseparably annexed to and inherent in Our Royal Person and that none of our Subjects may for the future be under any discouragement or disability who are otherwise well inclined and fit to serve Us by reason of some Oaths oâ—… Tests that have been usually administred on such Occasions We do hereby further Declare That it is Our Royal Will and Pleasure That the Oaths commonly called the Oaths of Supremacy and Allegiance and also the several Tests and Declarations mentioned in the Acts of Parliament made in the 25th and 30th Years of the Reign of Our late Royal Brother King Charles the Second shall not at any time hereafter be required to be taken declared or subscribed by any Person or Persons whatsoever who is or shall be imployed in any Office or Place of Trust either Civil of Military under Us or in Our Government And We do further declare it to be Our Pleasure and Intention from time to time hereafter to grant Our Royal Dispensations under Our Great Seal to all Our Loving Subjects so to be employed who shall not take the said Oaths or subscribe or declare the said Tests or Declarations in the above mentioned Acts and every of them And to the end that all Our Loving Subjects may receive and enjoy the full benefit and advantage of Our Gracious Indulgence hereby intended and may be acquitted and discharged from all Pains Penalties Forfeitures and Disabilities by them or any of them incurred or forfeited or which they shall or may at any time hereafter be liable to for or by reason of their Nonconformity or the Exercise of their Religion and from all Suits Troubles or Disturbances for the same We do hereby give Our Free and Ample Pardon unto all Nonconformists Recusants and other Our Loving Subjects for all Crimes and things by them Committed or done contrary to the Penal Laws formerly made relating to Religion and the Profession or Exercise thereof hereby Declaring That this Our Royal Pardon and Indempnity shall be as good and effectual to all Intents and Purposes as if every individual Person had been therein particularly Named or had Particular Pardons under Our Great Seal Which We do likewise Declare shall from time to time be Granted unto any Person or Persons desiring the same Willing and requiring Our Judges Justices and other Officers to take notice of and obey Our Royal Will and Pleasure herein before Declared And although the Freedom and Assurance We have hereby given in Relation to Religion and Property might be sufficient to remove from the Minds of Our Loving Subjects all Fears and Jealousies in relation to either yet We have thought fit further to Declare That We will Maintain them in all their Properties and Possessions as well of Church and Abby Lands as in any other their Lands and Properties whatsoever Given at Our Court at Whitehall the 4th day of April 1687. in the Third Year of Our Reign Ever since We Granted this Indulgence We have made it Our Principal Care to see it preserved without distinction as We are encouraged to do dayly by Multitudes of Addresses and many other Assurances We receive from Our Subjects of all Perswasions as Testimonies of their Satisfaction and Duty the Effects of which We doubt not but the next Parliament will plainly shew and that it will not be in vain that We have resolved to use Our uttermost Endeavours to Establish Liberty of Conscience on such just and equal Foundations as will render it unalterable and secure to all People the free Exercise of their Religion for ever by which future Ages may reap the benefit of what is so undoubtedly for the general good of the
the Court when they came here to day Certainly they were not for no man is in contempt but he that being served with Process disobeys that Process and if my Lords the Bishops had been served with a Subpoena and had not appeared then there would have gone out a Capias to bring them in and so they would have come in upon a Contempt and then they would have come within the Rule Mr. Soll. Gen. If you have a mind to it you may ask Sir Samuel Astry again Mr. Att. Gen. If they come in upon Bail they ought to plead presently Mr. I. Allybone Mr. Finch I 'le tell you what sticks with me truly you could not but be aware that this would be required of you for this very thing was in debate last Term and you know what Rules the Officer said was the Course of the Court why did you not therefore come prepared with some Presidents to shew us what the course of the Court is Mr. Att. Gen. Truly my Lord at this rate we shall keep your Lordship here all this Afternoon if these Gentlemen will not be satisfyed with the Rule of the Court and for an Answer to what Mr. Justice Powel says if any Ryotbâ—… committed in the Countrey and the Parties are bound by Recognizance to appear here that is no process of this Court and so consequently there can be no contempt and yet they must Plead presently Mr. I. Powell There is a particular reason for that because they are bound by Recognizance Sir Samuel Astry and others say that if they come in by Recognizance they must plead presently Mr. Soll. Gen. But for the thing it self that the people that hear us may not imagine that this Court puts a hardship upon my Lords the Bishops more than is done in other Cases it is best to keep the same Rule as is in all other Cases for when all is done when Justice goes with an Equal Current without any regard to one person or other then every body is safe and all persons concerned do their duty so in this case here be no Presidents produced wherein it has been otherwise then can no person complain but that things go in this Case as they do in all other Cases perhaps such a Case as to the Fact of it never hapned before but for the Law of it that is plain and the same as in all other Cases for that there may be an Information against my Lords the Bishops as well as other people If they make Libels sure it is no doubt at all and if an Information lies against them for it they are under the same Rules as others are but these Gentlemen talk of being surprized and that this is the first time they have heard of this Information but have we told any news in this Information Was not all that is contained in it notoriously enough known before Was not the Kings first Declaration very well known Was not his second Declaration very well known Was not his Order of Councel for the Reading of the Declaration very well known Is not your own Petition a thing very well known to yourselves and all the world Then these being the particular Facts of which this Information is made up and we only say you did do this Fact and we ask you did you do it or did you not Can there be any great surprize in this My Lord I cannot see any thing that alters this from the common Case but only their being Peers and since this question has been heretofore under contest these Gentlemen have had time enough to have prepared Precedents to differ this from the common Rule if they could but since they cannot we desire they may have the same Rule that is in all other Cases and then to be sure all will go right L. C. I. Sir Samuel Astry pray will you tell us whether ever the Court used to grant an Imparlance where a person comes in in Custody or did you ever know when a person comes in upon a Commitment time was given him to Plead Mr. Ser. Pemberton Have you ever known it disputed and denyed Sir S. Astry My Lord I have known that 't is in the discretion of the Court to grant what time they please L. C. I. Is it the course of the Court to give an Imparlance Sir S. Astry No 't is the favour of the Court and if the Defendants have at any time shewed a reasonable Cause that they have special Matter to plead or any other cause allowed by the Court the Court has sometimes Indulged them so far as to give them time L. C. I. But how is the ordinary course Sir Samuel Astry Mr. I. Allybone Ay for as I said before things done in particular Cases in favour are not Precedents Sir S. Astry I have told your Lordship the Course is this that any person that appears upon a Recognizance or is taken up by your Lordships Warrant or by a Warrant from a Justice of Peace or any other way in Custody or any Officer of the Court that is a Priviledged person and that must appear in propria personâ must plead presently if the Court upon particular Reasons do not give him time and this I received Information of as the practice of the Court from Mr. Waterhouse who had been a Clerk in the Office sixty years Mr. Soll. Gen. He said so before but these Gentlemen will never be contented unless they have a new Law made for them Mr. Pollixfen My Lord I would not unnecessarily trouble your Lordship but truly this is a case of great Concern And first of all I think we shall all agree that what has been used for ten or twelve years past will not make the Course of the Court and next I perceive they do not bring any one Instance for any proceeding of this sort above ten or twelve years old but then say they on the other side Why do not you bring Presidents that it has gone otherwise hretofore My Lord that cannot be done for it is a Negative on our side that this which they desire is not the Course of the Court but then as it is impossible to prove a Negative so the Proofs should come on the other side that this has been done they ought to shew it if there has been any such thing as a standing Rule or else it shall be presumed an Innovation as being contrary to all Reason But My Lord because they put it upon us there is this Proof on our side as much as a Negative can afford In those proceedings that were in the great Case of the Habeas Corpus there was an Information against Elliot and others they had time given them to Plead over and over so that there is one Precedent And as many as these Cases in former times as can be found will show that this was always the Course but pray say they produce us one Instance that ever there was a man that came in upon a
accuse even the most inferior Magistate of any misbehaviour in his Office unless it be in a legal Course though the Fact is true no Man may say of a Justice of Peace to his Face that he is unjust in his Office no Man may come to a Judge either by Word or Petition You have given an unjust or an ill Judgment and I will not obey it it is against the Rules and Law of the Kingdom or the like no Man may say of the great Men of the Nation much less of the great Officers of the Kingdom that they do act unreasonably or unjustly or the like least of all may any Man say any such thing of the King for these matters tend to possess the People that the Government is ill administred and the Consequence of that is to set them upon desiring a Reformation and what that tends to and will end in we have all had a sad and too dear bought Experience the last Age will abundantly satisfie us whither such a thing does tend Men are to take their proper remedies for Redress of any Grievances they lye under and the Law has provided sufficiently for that These things are so very well known to all Men of the Law and indeed to all the People of England of any Understanding that I need not nor will not stand any longer upon it but come to the matter that is now before you Gentlemen to be Tryed The Fact that we have laid we must prove rather to keep to the formality of a Tryal than to pretend to inform you or tell you what you do not know it is all publickly notorious to the whole World but because we must go on in the regular methods of Law we shall prove the Facts in the order they are laid in the Information First We take notice that His Majesty of his great Clemency and Goodness to his People and out of his desire that all his Subjects might live easily under him of which I think never Prince gave greater or more plain Evidence of his Intentions that way the fourth of April 1687. He did issue forth his Royal Declaration for Liberty of Conscience this matter without all question was welcome to all his People that stood in need of it and those that did not could not but say the thing in the nature of it was very Just and Gracious but presently it must be surmised that the King was not in Earnest and would or nor could not make good his Promise but to take away all Surmises his Majesty was pleased by his Declaration of the twenty seventh of April last not only to repeat his former Declaration but likewise to renew his former Promises to his People and to assure them that he still was and yet is of the same Opinion that he had at first declared himself to be of nay we further shew you that to the end that this thing might be known to all his People even to the meanest Men who it may be were not willing or able to buy the Declaration and that the King himself might be under higher Obligations if it were possible than his own Word he was desirous it should be repeated in the Churches and read in that Sacred Place that all his People might hear what he had promised and given his own Sacred Word for and he himself might be under that Solemn Tye and Obligation to keep his Word by remembring that his Promises had by his own Command been Published in the time of Divine Service in the House of God and thereupon was the Order of Council made that has been likewise read to you which does direct that it should be read in all the Churches and Chappels in the Kingdom and you have heard and we shall prove what a return His Majesty has had for this Grace and Kindness of his you 'l find when we come to read that which they call a Petition all their Thanks his Majesty had for his Favour and Goodness to his People 't is only hard Words and a heavy Accusation such as a private Person would be little able to bear I will not aggravate the matter but only say thus much that His Majesty who was always a Prince of as great Clemency as ever this Kingdom had and who was represented for all that as a Prince of the greatest Cruelty before his accession to the Crown by his Enemies is now accused by his Friends for this Effect of his Mercy My Lord and Gentlemen of the Jury His Majesty resented this ill usage so far that he has ordered and thought fit to have a publick Vindication of his Honour in this matter by this Tryal and we shall go on to our Proofs and we do not doubt but you will do his Majesty as you do all other Persons Right Mr. Sol. Gen. My Lord we will go on to prove the Parts of this Information and we will proceed according to the Method which Mr. Attorney has opened and which is pursuant to the order of the Facts laid in the Information Give us the first Declaration under the Great Seal the Declaration of the 4th of April 1687. The Declaration was delivered into the Court. Mr. Sol. Gen. Read the Date of it first Clerk Reads Given at our Court at Whitehall the 4th day of April 1687 and in the third Year of our Reign Mr. Sol. Gen. Read the Title of it Sir. Clerk. It is Entituled His Majesties Gracious Declaration to all his Loving Subjects for Liberty of Conscience Sir Rob. Sawyer Is it under Seal Is the Great Seal to it Mr. Sol. Gen. Give it down to Sir Robert Sawyer that he may see it for I would have every thing as clear as possible Sir Robert Sawyer will you have it Read Sir Rob. Sawyer No we would save as much of the time of the Court as may be Mr. Sol. Gen. Then pray put in the Second Declaration of the 27th of April last Clerk Reads Given at our Court at Whitehall the 27th day of April 1688. in the fourth Year of our Reign and it is Entituled His Majesties Gracious Declaration Sir Rob. Sawyer Is that under the Great Seal too Clerk. Yes it is Mr. Sol. Gen. Deliver that down likewise that they may see it Sir Rob. Sawyer We are satisfied you need not read it Mr. Sol. Gen. Then where is the Order of Council for the Reading of it Mr. At. Gen. Swear Sir Iohn Nicholas There he is Sir Iohn Nicholas Sworn Lord Ch. Iust. Come Mr. Attorney what do you ask Sir Iohn Nicholas Mr. Sol. Gen. Hand the Order to Sir Iohn Nicholas Is that the Order of Council Sir Iohn Sir John Nicholas The Book Sir is not in my Custody there is the Register that keeps it he has it here to produce Mr. Sol. Gen. Swear Mr. Gantlett Mr. Gantlett Sworn Mr. Sol. Gen. Is that the Council Book Mr. Gantlett Yes this is the Council Book Mr. Sol. Gen. Then turn to the Order of the fourth
was proper for you to stand upon the Place where it was Written as yet Mr. Serj. Levinz When we are upon an Information of a Fact in Middlesex will you hear them give Evidence of a Fact in Yorkshire Mr. Sol. Gen. We are not to be driven by these Gentlemen we are to be directed by the Court. L. C. I. I think truly it is yet too early to make this Objection Mr. Serj. Pemberton Surely my Lord this is our time to oppose the Reading of it as not proved Mr. I. Powell Mr. Sollicitor I think you have not sufficiently proved this Paper to be Subscribed by my Lords the Bishops Mr. Sol. Gen. Not to Read it Sir Mr. I. Powell No not to Read it it is too slender a Proof for such a Case I grant you in Civil Actions a slender proof is sufficient to make out a Man's Hand by a Letter to a Tradesman or a Correspondent or the like but in Criminal Causes such as this if such a proof be allowed where is the safety of your Life or any Man's Life here Mr. Sol. Gen. We tell you a Case where it was allowed and that is Mr. Sidney's Case a Case of Treason and Printed by Authority We tell you nothing but what was done to'ther day L. C. I. I tell you what I say to it I think truly there is proof enough to have it Read and I am not ashamed nor afraid to say it for I know I speak with the Law say what you will of Criminal Cases and the danger of Peoples Lives there were more danger to the Government if such proof were not allowed to be good Mr. I. Powel I think there is no danger to the Government at all in requiring good proof against Offenders L. C. I. Here 's my Lord Archbishop and the Bishop of St. Asaph and my Lord of Ely their Hands are proved it is proved to be my Lord Archbishop's Writing by Mr. Brookes and he proves my Lord of Ely's Hand by Comparison and so my Lord of St. Asaph's Now Brother Pemberton there 's an Answer to your Objection it being proved that it is all my Lord Archbishop's Hand then they come and say We 'll prove the Hands of the others by comparison and for that they bring you Witnesses that say They have received Letters from them and seen their Hand-writing several times and comparing what they have seen with this very Paper says the Witness I do believe it to be his Hand Can there be a greater Evidence or a fuller Mr. Serj. Pemberton Admit it be a full Evidence against my Lord Arch-Bishop What 's that to the rest There 's no Evidence against them Mr. I. Allybone Brother Pemberton as to the Objection you make of Comparing of Hands it is an Objection indeed I do agree but then consider the inconvenience which you and Mr. Pollixfen do so much insist upon If a Man should be accused by Comparison of Hands Where is he He is in a lamentable Case for his Hand may be so Counterseited that he himself may not be able to distinguish it But then you do not consider where you are on the other side that may be an Objection in matters of Fact that will have very little weight if compared and set altogether For on the other side where shall the Government be if I will make Libels and traduce the Government with Prudence and Discretion and all the secrecy imaginable I 'll Write my Libel by my self prove it as you can that 's a fatal blot to the Government and therefore the Case is not the same nor is your Doctrine to pass for current here because every Case depends upon its own Fact. If I take upon me to Swear I know your Hand the inducements are to my self how I came to know it so as to Swear it Knowledge depends on Circumstances I swear that I know you but yet I may be under a mistake for I can have my knowledge of you no other way but from the visibility of you and another Man may be so like you that there is a possibility of my being mistaken but certainly that is Evidence and good Evidence Now here are several Gentlemen that swear as to my Lord Archbishop's Hand-writing I do agree as to some of the others that the Evidence is not so strong for what that Man said that he did believe it was rather such a Lord's Hand than that which went before or that which came after it is of no weight at all and so some of the others but it is positively proved against my Lord Archbishop and one or two more so that that 's enough to induce the reading of this writing Mr. Iust. Holloway Good my Lord let me give my opinion L. C. Iust. Ay withall my heart Brother Mr. Iust. Holloway My Lord I think as this Case is there ought to be a more strong proof for certainly the proof ought to be stronger and more certain in Criminal matters than in Civil matters in Civil matters we do go upon slight proof such as the comparison of Hands for proving a Deed or a Witnesses Name and a very small proof will induce us to read it but in Criminal matters we ought to be more strict and require positive and substantial proof that is fitting for us to have in such a Case and without better proof I think it ought not to be read L. C. Iust. You must go on to some other proof Mr. Sollicitour for the Court is divided in their Opinions about this proof Mr. Soll. Gen. Then my Lord we will come to the Confessions of my Lords the Bishops and I hope that will be believed by all Man-kind Mr. Att. Gen. Truly my Lord we did forbear that Evidence and would not have proceeded this way if we had had fair play on the other side Sir Ro. Sawyer Mr. Attorney give us leave to defend our Clients all the ways we can I think we doe nothing but what is fair the Court you see is divided therefore we did not without reason insist upon it L. C. Iust. You must go on as you can for they will put you upon it Mr. Att. Gen. Swear Mr. Blathwayt Mr. Blathwayt Sworn Mr. Soll. Gen. Pray hand the writing to him The writing shown to him Mr. Soll. Gen. Have you seen that writing formerly Sir Mr. Blathwayt Yes Sir. Mr. Soll. Gen. What did you hear my Lord Arch-Bishop say about that Paper Mr. Att. Gen. And the rest of my Lords the Bishops Mr. Soll. Gen. First we 'll ask as to my Lord Arch-Bishop did he own it to be his Hand-writing Mr. Blathwayt My Lord I believe this to be the Paper that my Lord Arch-bishop did own to be subscribed by him Mr. Soll. Gen. When was it owned by him Mr. Blathwayt On the Council day the Eighth of this Month. Mr. Soll. Gen. Where was it owned because we would obviate that Objection of the County Mr. Blathwayt It was at the Council Table at
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
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