With Submission that is such a difficulty that lyes in the way against the reading of the Information that you must get over it before you can come at the Reading of it Mr. Att. Gen. You will have your time for all this matter by and by but certainly you cannot be admitted to it yet L. Ch. Iust. Truly I think you are too early with that Exception Mr. Finch With Submission we think this is the proper time and I will tell your Lordship the reason why Ld. Ch. Iust. Mr. Finch certainly every thing in the world that can be said you will say for your Cllent and you shall be heard for we are very willing to deliver these Noble Lords if we can by Law and if the Exceptions you make be legal Mr. Finch My Lord we do not doubt your Justice and therefore we desire to offer what we have to say in this Point the only Question now it seems is about our time of making our Exception Mr. Attor we apprehend did say one thing which was certainly a little too large That however any man comes into Court if the Court find him here they may Charge him with an Information Mr. Attor Gen. Who says so I said no such thing Mr. Finch Then I acquit Mr. Attorney of it he did not say so Then both he and I agree the Law to be That a man that does come into Court if he does not come in by Legal Process he is not to be Charg'd with an Information then since we do agree in that Proposition certainly we must be heard to this Point Whether we are here upon Legal Process before you can Charge us with this Information Mr. Attor Gen. You think you have said a fine thing now and take upon you an Authority to make me agree to what you please Mr. Finch Certainly the Consequence is plain upon your own Premises Mr. Attor Gen. Do you undertake to speak for me Mr. Finch I am in the Judgment of the Court and to them I leave it Mr. Attor Gen. I know you thought you had got an extraordinary Advantage by making me say what you please but there has been very little said but what has been grounded upon Mistakes all along This is that I do say If a man comes in voluntarily upon any Recognizance though he be not in Custody or if he comes in upon any Process if the Court find him here though that Process be not for the thing Charged in the Information yet the Court is so much in possession of the Person that he shall plead to any Information and That I do say and will stand by Mr. Soll. Gen. My Lord we are here in a very great Auditory and this Court is always a very great Court but here is a Greater and Nobler Assembly than usually we have here and these Gentlemen to shew their Eloquence and Oratory would by converting Propositions otherwise than they are delivered put another meaning upon them and so draw strange Inferences from them but these Arts we are sure will not prevail here we say plainly and we are sure the Law is so let them apprehend what they will That your Lordship cannot exhibit an Information to any man that you find accidentally here in Court then says Mr. Finch we are agreed but withal say I take my other Proposition If a Person be brought into Court by Legal Process or upon any Contempt whatsoever by an Attachment or Warrant or upon a Habeas Corpus after a Commitment being thus found in Court your Lordship may certainly Charge him with an Information when these Gentlemen who are so eager on the otherside did preside here and stood in the places where Mr. Attorney and I now are I can name them abundance of Cases of the like nature with this when men have been compelled to appear to Informations and plead presently they are the Persons that made the Precedents they made the Law for ought I know I 'm sure I find the Court in possession of this as Law and we pray the usual Course may be followed Mr. Finch 'Pray my Lord spare us a word in this matter I do agree with Mr. Attor in this matter but I do not agree with Mr. Sollicitor Mr. Soll. Gen. You do not agree with your self Mr. Finch I hope I do and always shall agree with my self but I do not agree with you Mr. Sollicitor Mr. Soll. Gen. You do not in 1688 agree with what you were in 1680. Mr. Finch Says Mr. Attorney A man that comes voluntarily in cannot be Charged with an Information with him I agree Says Mr. Sollicitor A man that comes in and is found in Court by any Process may be Charg'd with an Information I say no if the Process be wholly illegal for he cannot be said to be legally in Court Suppose a Peer of the Realm be taken upon a Capias and is Committed to the Marshaâ—…ea and is brought up upon a Habeas Corpus I would fain know whether you could declare against him Mr. Attor Gen. No we cannot Mr. Finch And why is that but because the Process is Illegal and he is not truly in Court Then is it a proper time now to make this a question Whether my Lords here were Legally committed before you can lay any thing to their charge by way of Information for if the Commitment be Illegal it is a void Commitment and if the Commitment be void the Process is void and then my Lords are not Legally in Court. Ld. Ch. Iust. That sure is but returning again to the same question that has been determined already Mr. Soll. Gen. If your Lordship will permit them to go over and over the same things we shall never have an end Mr. Finch My Lord we pray these Gentlemen of the KINGS Council may be a little cool with us and then they will find we do not talk the same things over and over again nor meddle with that which the Court have given their Judgment in Ld. Ch. Iust. Well go on Sir. Mr. Finch My Lord We say it is the Priviledge of the Peers of England that none of them shall be Committed to Prison for a Misdemeanour especially in the first instance and before Judgment this we say is the right of my Lords the Bishops and that which they claim as Lords of Parliament Now it appears upon this Return and the Warrant that the Council-Table hath Committed them for your Lordship and the Court hath rul'd it that this Commitment must be taken to be by Order of the Privy-Council and we meddle not with that further but we say that the Council-Table may Commit a man unjustly that is certain There has been relief often given in this Court against Commitments by the Council-Table And that they were unjustly Committed depends upon that point of their Priviledge as Peers Mr. Serj. Pemb. My Lord we say that the Lords of the Council have Illegally Committed these Noble Persons who are Peers of
Whitehall Mr. Soll. Gen. What say you to the Bishop of St. Asaph Did he own it Mr. Blathwayt Yes All my Lords the Bishops did own it Mr. Soll. Gen. Name them particularly what say you the Bishop of Ely Mr. Blathwayt In the same manner my Lord. Mr. Soll. Gen. The Bishop of Chichester Mr. Blathwayt In the same manner Mr. Soll. Gen. The Bishop of Bath and Wells Mr. Blathwayt Yes my Lord. Mr. Soll. Gen. The Bishop of Peterborough Mr. Blathwayt Yes my Lord. Mr. Soll. Gen. And the Bishop of Bristol Mr. Blathwayt Yes my Lord. Mr. Soll. Gen. So We have proved they all owned it Mr. Iust. Holloway Could not this have been done at first and saved all this trouble Sir Rob. Sawyer Have you done with Mr. Blathwayt Mr. Attorney that we may ask him some questions Mr. Att. Gen. Ask him what you will. Mr. Ser. Pemb. Pray Mr. Blathwayt upon what occasion did they own it you are Sworn to tell the whole truth pray tell all your Knowledge and the whole Confession that they made Mr. Blathwayt My Lord I am called here by a Subpoena to answer on behalf of the King my Lord I am ready to doe my duty and I beg of your Lordship that you would please to tell me what is my duty for whatsoever I shall answer I shall speak the truth in Mr. Ser. Pemb. There is nothing desired but that you would speak the truth Mr. Blathwayt My Lord I am easily guided by your Lordship what I ought to answer to L. C. Iust. What is it you ask him Brother Pemberton Mr. Ser. Pemb. We desire Mr. Blathwayt to tell the whole discourse that passed at the Council when he says my Lords the Bishops owned this Paper Mr. Soll. Gen. That 's a very pretty thing indeed L. C. Iust. Look you Mr. Blathwayt you must answer them what they ask you unless it be an ensnaring Question and that the Court will take care of Mr. Blathwayt If your Lordship please to ask me any Question I shall readily answer it L. C. Iust. You must answer them Mr. Ser. Pemb. We ask you upon what occasion they came to own their Hands What discourse was made to them and what they answered Mr. Blathwayt My Lord I beg your Lordship's directions L. C. Iust. Come tell it Sir. Mr. Blathwayt My Lord the occasion was this This Paper was read in Council and I had the honour to read it before the King and it having been read before his Grace the Arch-Bishop and my Lords the Bishops they were asked whethey did own that Paper and my Lord they did own it Sir Rob. Sawyer Mr. Blathwayt was that the first time that my Lords the Bishops came in Mr. Blathwayt Sir I was not asked that Question L. C. Iust. What would you have Sir Robert Sawyer Sir Robert Sawyer We would have an account what passed at the Council L. C. Iust. Would you have all the Discourse betwixt the Council and my Lords the Bishops Mr. Ser. Pemb. All that relates to their Accusation my Lord their whole Confession and what was said to them Mr. Att. Gen. Do you think Mr. Serjcant that when we call a Witness you are at liberty to examine him to every impertinent thing Mr. Soll. Gen. My Lord we desire that they may only ask reasonable and proper Questions Mr. Ser. Pemb. Mr. Sollicitour he is sworn to answer and tell the whole truth and that 's all we ask of him Sir Rob. Sawyer Sir I will ask you a plain Question upon your Oath did not my Lord Arch-Bishop and the rest of my Lords the Bishops at first resuse to own it or to answer whether it were their Hands or not Mr. Soll. Gen. That is not a fair Question Sir Robert Sawyer 't is a leading Question Mr. Ser. Pemb. Then I ask you in short what did they refuse I am sure that is a fair Question for God forbid that any should hinder the King's Evidence from telling truth Sir Rob. Sawyer And God forbid that half Evidence should condemn any man. L. C. Iust. God forbid the Truth should be concealed any way Mr. Ser. Pemb. Pray Sir when they were first asked whether that was their Hands or not what answer did they give Mr. Blathwayt Sir I have begged the favour of my Lords the Judges to tell me what I am to answer and what Questions are proper for me to answer to L. Ch. Iust. You must answer any Questions that are not ensnaring Questions Sir Robert Sawyer Mr. Blathwayt you are upon your Oath to testifie the Truth Mr. Blathwayt Sir I am not acquainted with the Methods of Law I desire my Lords the Judges would instruct me Mr. Iust. Ailibone Answer to the Question that they ask you Ld. Ch. Iust. We observe what they ask you we 'll take care that they ask you nothing but what they should Mr. Blathwayt I desire the Question may be repeated Mr. S. Pemberton When they were first asked if it were their Hands what answer did they give the King Mr. Blathwayt His Grace the Archbishop and my Lords the Bishops at first did not immediately answer whether the Paper were theirs or no. Mr. S. Peinberton What did they say Mr. Blathwayt They said they did humbly hope if they were put to answer no advantage should be taken against them Mr. S. Pemberton What did they say farther at that time concerning His Majesties pleasure Mr. Soll. Gen. That 's a leading Question Mr. S. Pemberton you cannot leave your way of leading Witnesses Mr. S. Pemberton It is a very strange thing if we ask a question that 's general that 's excepted to if we ask any question in particular then they find fault with us that it is a leading Question so that we can never ask a question that will please them Pray Mr. Blathwayt what did they say concerning the King's pleasure whether they would answer if the King commanded them Mr. S. Trinder How can it be material what they said L. Cn. Iust. It is material that it should be asked and that it should be answered Mr. S. Levinz You are to tell the whole Truth Sir Pray tell us what did my Lords the Bishops say about submitting to the King's pleasure Mr. Soll. Gen. What is that to the purpose Mr. Pollixfen Mr. Sollicitour his Oath is to tell the truth and the whole truth and therefore he must answer my question Mr. S. Pemberton You are mighty loth Mr. Sollicitour to let us hear the truth I would not willingly lead him in any thing and I cannot see that this is any leading question unless his Oath be against Law which says he is to tell the whole truth Mr. At. Gen. My Lord I do beg your Lordship's favour of a word in this thing It is certain if they ask any thing that shall take off the Evidence that was first given that it is not true I cannot oppose it but if they ask questions onely to conflame and to possess people
giving Reasons for the Disobedience in a Libellous Petition and I am going on to that The Declaration is said in the Petition to be Illegal which is a Charge upon the King That he has done an Illegal Act. They say they cannot in Honor Conscience or Prudence do it which is a Reflection upon the Prudence Justice and Honour of the King in Commanding them to do such a thing And this appearing to have been delivered to the King by my Lords the Bishops Persons to whom certainly we all owe a Deference as our Spiritual Masters to believe what things they say as most likely to be true and therefore it having an Universal Influence upon all the People I shall leave it here to your Lordship and the Jury whether they ought not to Answer for it Mr. Recorder Will your Lordship please to spare me one Word L. Ch. Iust. I hope we shall have done by and by Mr. Recorder If your Lordship don't think fit I can sit down L. Ch. Iust. No no go on Sir Barth Shore you 'll say I have spoiled a good Speech Mr. Recorder I have no good one to make my Lord I have but a very few Words to say L. Ch. Iust. Well go on Sir. Mr. Recorder That which I would urge my Lord is only this I think my Lord we have Proved one Information and that they have made no Answer to it for the Answer they have made is but Argumentative and taken either from the Persons of the Defendants as Peers or from the Form of its being a Petition As Peers it is said they have a Right to Petition to and Advise the King but that is no Excuse at all for if it contains Matter Reproachful or Scandalous it is a Libel in Them as well as in any other Subject and they have no more Right to Libel the King than His Majesties other Subjects have nor will the Priviledge of their Peerage exempt them from being Punished And for the Form of this Paper as being a Petition there is no more Excuse in that neither For every Man has as much Right to Publish a Book or Pamphlet as they had to Present their Petition And as it would be Punishable in that Man to Write a Scandalous Book so it would be Punishable in them to make a Scandalous and a Libellous Petition And the Author of Iulian the Apostate because he was a Clergy Man and a Learned Man too had as much Right to Publish his Book as my Lords the Bishops had to Deliver this Libel to the King. And if the City of London were so severely Punished as to lose their Charter for Petitioning for the Sitting of a Parliament in which there were Reflecting Words but more Soft Mr. Iust. Holloway Pray good Mr. Recorder don't compair the Writing of a Book to the Making of a Petition for it 's the Birth-right of the Subject to Petition Mr. Recorder My Lord it was as Lawful for the City of London to Petition for the Sitting of a Parliament as it was for my Lords the Bishops to give Reasons for their Disobedience to the King's Command And if the Matter of the City of Londons Petition was reckoned to be Libellous in saying that what the King had done in Dissolving the Parliament was an Obstruction of Justice what other Construction can be made of my Lords the Bishops saying that the King's Declaration is Illegal And if the Matter of this Petition be of the same Nature with that of the City of London your Lordship can make no other Judgment of it but that it ought to have the same Condemnation Mr. Iust. Powel Mr. Recorder you will as soon bring the Two Poles together as make this Petition to agree with Iohnson's Book they are no more alike than the most different things you can name Mr. Serj. Trinder My Lord I have but one Word L. Ch. Iust. How unreasonable is this now that we must have so many Speeches at this time of Day But we must hear it go on Brother Mr. Serj. Trinder My Lord if your Lordship pleases That which they seem most to insist upon on the other side and which has not been much spoken to on our side is That this Power which His Majesty has Exerted in setting forth His Declaration was Illegal and their Arguments were Hypothetical If it were Illegal they had not Offended and they offered at some Arguments to prove it Illegal But as to that my Lord we need not go much further than a Case that is very well known here which I crave leave to mention only because the Jury perhaps have not heard of it and that was the Case of Sir Edward Hales where after a long Debate it was Resolved That the King had a Power to Dispense with Penal Laws But my Lord if I should go higher into our Books of Law that which they seem to make so strange of might easily be made appear to have been a frequent and constant practice L. Ch. Iust. That is quite out of the Case Brother Mr. Serj. Trinder I beg your Lorships Favour for a Word or two if your Lordship please to Consider the Power the King has as Supreme Ordinary we say he has a Power to Dispense with these Statutes as he is King and to give Ease to his Subjects as Supreme Ordinary of the whole Kingdom and as having Supreme Ecclesiastical Authority throughout the Kingdom There might be abundance of Cases cited for this if there were need the Statute of primo Eliz. doubtless is in Force at this time and a great many of the Statutes that have been made since that time have express Savings of the King's Supremacy so that the King's Power is Unquestionable And if they have come and Questioned this Power in this manner by referring themselves to the Declarations in Parliament they have done that which of late Days has been always look'd upon as an Ill thing as if the King's Authority was under the Suffrages of a Parliament But when they come to make out their Parliament Declarations there was never a one unless it be first in Richard the Seconds time that can properly be called a Parliament Declaration so that that of the several Parliaments is a Matter perfectly mistaken and if they have mistaken it it is in the Nature of false News which is a Crime for which the Law will Punish them More things might be added but I consider your Lordship has had a great deal of Patience already and much time has been spent and therefore I shall conclude begging your Lordships Pardon for what I have said L. Ch. Iust. I do assure you if it had not been a Case of great Concern I would not have heard you so long It is a Case of very great Concern to the King and the Government on the one side and to my Lords the Bishops on the other and I have taken all the Care I can to observe what has been said on both sides 'T
is not yet a Question Mr. Finch But it is and this the fittest time for it Mr. Soll. Gen. Pray will you hear us quietly what we have to say and then answer us with Reason if you can I think we are in a proper way but they are not my Lord for as I said my Lords the Bishops are brought by the Kings Writ upon our Motion for the King not upon theirs and now we have them here before the Court We for the King would charge them with an Information which Information that they and the Court may know what it is they are charged with we pray it may be read to them by the Clerk and when it is read let these Gentlemen say what they will for them they shall have their time to speak but certainly they ought not to obstruct the Kings Proceedings nor oppose the Reading of the Information to these noble Lords who are brought here in Custody into Court to this very purpose that they may be charged with this Information Mr. S. Pemberton But we have somewhat to say before you can come to that Mr. Sollicitor Mr. Soll. Gen. You ought not to be heard as yet M. S. Pemberton Under favour we ought to be heard Sir Rob. Sawyer My Lord Mr. Sollicitor has opposed our being heard but we now desire he would hear our answer to it and that which we have to say is this That my Lords the Bishops are not here Regularly in the Court to be charged with an Information and if the Law be not with us in this point as we doubt not to make appear it is no question but when your Lordship has heard what we have to say you will give a Right Rule in it My Lord we say that by the Rules of Law no man ought to be Charged with an Information or Indictment by the Express Statute of Edward the Third unless he come into Court by Legal process that is a standing Rule and the practice of this and all other Courts is pursuant to it Now in this Court you have several processes that go out of this Court and he that comes as taken by vertue of a Capias or an Attachment after a Summons or by Venire in the nature of a Subpoena I say he that comes in upon these processes may be Charged with an Information but where a person is in Prison Committed by another Jurisdiction and another Authority then that of this Court when the â—…risoner is brought here by Habeas Corpus the first thing the Court has to do is to enquire whether he be Legally Committed to that end the Return is filed and the party has leave to make his Exceptions to it as we do in this Case My Lords are brought here upon a Habeas Corpus the Return of which has been read and now the Return is filed we are proper to move that my Lords may be discharged for you now see what they are Committed for it is for a Misdemeanour in making and publishing a Libel that 's the matter for which they are Committed and it appears by the Return likewise that they who are thus Committed are Peers of the Realm for so my Lords the Bishops all are and for a Misdemeanour they ought not by Law to have been Committed L. C. I. You go too far now Sir Robert Sanyer I would willingly hear you whatsoever you have to say but then it must be in its due time Mr. Att. Gen. This very discourse indeed I have heard has pass'd up and down the Town for Law We may see now whence they had it Mr. Sol. Gen. I know it has heretofore been urged by me but denyed by them who now urge it and I am glad that they now learn of me to tack about L. C. I. Look you Gentlemen do not fall upon one another but keep to the matter before you Mr. S. Pemberton So we would my Lord if the Kings Councel would let us First we say we being brought here upon a Return of a Habeas Corpus there was neither at the time of the Commitment Cause to Imprison us nor was there by the Warrant any Cause to detain us in Prison and for that besides what has been hinted at we say further that here it is returned that we were Committed by such and such Persons Lords of the Privy Council but the Return doth not say that it was done by them as Lords of the Privy Council which must be in Council for if it be not in Council they have not power to make such a Warrant for the Commitment of any Person and that we stand upon here is a Return that is not a good Return of a Legal Commitment and therefore we pray my Lords may be discharged Mr. Pollexfen Pray my Lord spare me a word that is the thing we humbly offer to your Lordships Consideration and under Favour I think we are proper both as to the Matter and as to the Time the Return is now filed before you if by this Return there appears to have been such a Cause to Commit these Lords to Prison as is Legal then we acknowledge they may in a Legal Course be brought to answer for their Offence but with Submission it appears not by any thing that is in this Return that my Lords the Bishops were Committed by the Order of the Privy Council All that is said is That they were Committed by my Lord Chancellor and those other Persons named Lords of the Privy Council which we conceive is not a good Return for they can do nothing as Lords of the Privy Council except only as they are in Council and by Order made in Council except that do appear they have no Power to Commit then take the Case to be so here is a man Committed by one that has no Authority to Commit him and he is brought by Habeas Corpus into this Court what shall the Court do with him Shall they charge him with an Information No it does appear that he was never in Custody but under a Commitment by those who had no Legal Power to Commit him and therefore he must be discharged and that we pray for my Lords the Bishops What the Kings Councel may have to say to them afterwards by way of Information or otherwise they must take the Regular Methods of the Law to bring my Lords the Bishops to answer but as the Case stands here before you upon this Return it does appear they had no Authority to Commit them by whose Warrant they were Committed and therefore this Court has nothing to do but to discharge them Mr. Finch I beg your Lordships leave to say one word farther on the same side I think with humble Submission this is the most proper time for us to make this Motion for here is a Habeas Corpus Returned this Return is filed and then the Kings Councel move to Charge my Lords the Bishops with an Information that Motion of theirs we say is too soon
Court was and he told us that the Course of the Court of his own knowledge for all the time that he had sat as Clerk of the Crown in this Court was that when any one was brought in Custody or upon a Recognizance they were to plead presently Mr. Finch Sir Samuel Astry has not been here so very long as to make the Practice of his time the Course of the Court. L. C. Iust. But I will tell you what he said further if you will hear me he said he had enquired of Mr. Waterhouse whom we all know to have been an old Clerk in the Crown Office and he told him that that had been the practice all his time Mr. Serj. Pemb. My Lord I hope the course of the Courts of Westminster-Hall shall not depend upon the Certificate of such a one as Mr. Waterhouse who is a Man we all know is superannuated and very defective in his Memory Mr. Iust. Powel Certainly what they desire for the Defendant is very reasonable for I take the Point to be only this whether a Man may be compelled being in Custody to Plead to an Information presently Mr. Iust. Allibone Pray Brother Powell spare me a word in this matter Mr. Finch I suppose you labour that the Court will not deny you that you may have time to plead according to the course of the Court We are not making new Courses for particular Facts that by my consent we will never do but if you say such a thing is not the course of the Court and the King's Counsel affirm it is how shall this be determined and from whom can we take our Information to determine what is the course I am sure there is none of us that are here now can pretend to tell what the Ancient course was for my part I declare it I cannot and I know no reason there should be any Novelty introduced into the Court upon any ground or reason whatsoever nor will I consent to any while I sit here Therefore I desire to know what is the Ancient Course and how we shall come to the knowledge of that Course if not by the Certificate of those who have been Ancient Officers of the Court L. C. Iust. Nay that is certain the Court will bring in nothing new in any such Case as this Mr. Iust. Allibone If that hath not been the Antient Course without exception I am against it I know no Reason my Lords the Bishops should have any thing new put upon them on the other side they must not expect to have the Ancient Course of the Court declined in their Case Mr. Pollixf Pray my Lord hear me a little in this matter 't is not my desire that any Law should be altered for any particular Case and the Course of the Court I know is the Law of the Court but I humbly crave leave to say That I take the Ancient Course of the Court to be quite otherwise than what the King's Counsel would have it there may be particular things done now and then perhaps in particular Cases and upon particular Occasions which will not make what is so done to be the Course of the Court nor be a binding Rule to you Now as to this matter of time oâ—… no time to plead to an Information I remember the time very well when I and some others that stood at the Bar and wondred when we saw this practice coming in and thought it a very hard and mischievous thing for in truth the several Plots that have been and the heats of men about those things have brought in this Course for certain I am and I dare affirm there never was any such Course here before neither upon Warrant from the Chief Justice nor upon Recognizance or any other Process was a Man compelled to plead instantly without having a Capias in the regular form after a Contempt for not appearing upon Summons Truly my Lord we had no Interest in the matter one way or other to make us scruple it any otherwise than as we were concerned that the Law and Justice of the Nation should have its true and ancient Current And this I can assure your Lordships that here was both my Lord Chief Justice Saunders and Mr. Serj. Hâ—…lt and my self who take notice when this was first offered at to make a man plead immediately without giving him time to consider what he should plead could not but say among our selves that it was an unreasonable thing and we were inclined to speak to the Court to inform them of the Consequence of it which needs must be very mischievous Sir Samuel Astry we know came to be Clerk of the Crown in my Lord Scroggs's time we know 't is usual and customary for the Court to ask what is the Course of the Court in doubtful Cases and to receive the Information from the Officers of the Court on both sides If it be on the Plea side from Mr. Aston if on the Crown side from Sir Samuel Astry concerning things of Practice but I did never think that what they reported was final and conclusive to the Court But to make this matter clear I humbly pray that you would please to give order for the search of old Precedents how the old Practice really hath been every thing that has been done in hot times is not to be made a standing Rule If there do any such thing appear to have been done and practised antiently truly my Lord I will submit and say I am under a mighty mistake but if this which is now urged for the Course of the Court is nothing but what the Zeal of the Times and Heat of Persecutions hath introduced surely that is not fit to be a constant Rule for the Court to go by for every one knows that the Zeal of one time may bring in that by surprize upon one Man which when things are cooll or at another time will appear to be plain Injustice We have indeed seen strange things of this kind done before but I hope to God they are now at an end and we shall never see any such thing done hereafter and as for this particular Point I think it is a wonderful thing in the Consequence of it if the Law should be as they would have it Here is a long Information just read over to a Man but whether long or short as to the main Point 't is the same and you say the Course of the Court is he must plead to it immediately surely matters of Crime that require Punishment to be inflicted on men are of as much consequence and concern as any Civil matter whatsoever and Men are to have their Rights in those matters preserved as well as in other matters which is all I press for suppose a man has a special matter to plead as particularly suppose it be the King's Pardon I cannot give this in Evidence upon a Trial after not guilty pleaded then I ought to plead it but what if I
spoke Brother Pemberton and I would willingly hear you what you have to say but we must not have vying and revying for then we shall have no end Mr. Serj. Levinz I would offer your Lordship some new matter which has not been touched upon yet why it is not to be Read. L. C. I. What 's that Brother Mr. Serj. Levinz All the proof that has been given whatsoever it amounts to has been only of its being Written but no proof has been given of its being Written in the County of Middlesex where the Information is laid and the matter is Local Mr. Sol. Gen. First Read it and then make your Objection Mr. Recorder My Lord as to the Evidence that has been given I would only put your Lordship in mind of one Case and that was the Case of Sir Samuel Barnardiston and the great Evidence there was the proof of its being his Hand-writing and that being proved was sufficient to Convict him of a Libel for they could not believe Sir Samuel Barnardiston was Guilty of making Libels unless they were proved to be his Hand-writing Sir Robert Sawyer He owned them to be his Hand-writing L. C. I. If you do expect my Opinion in it whether this be good Evidence and whether this Paper be proved or no I am ready to give it Mr. Finch My Lord I desire to be heard before the Opinion of the Court be given Mr. Sol. Gen. If there be not proof enough to induce the Jury to believe this is their Paper yet sure there is enough to Read it Sir Robert Sawyer My Lord we have not been heard to this yet Mr. Sol. Gen. Why is this fit to be suffered L. C. I. Mr. Sol. I am always willing to hear Mr. Finch Mr. Sol. Gen. But I hope your Lordship and the Court are not to be Complemented into an unusual thing Mr. Serj. Pemberton It is not a Complement but Right and Justice Mr. Sol. Gen. Certainly it is Right and Justice that there should be some limits put to Men's speaking that we may know when to have an end Sir Robert Sawyer Mr. Sollicitor does mistake the right my Lord for we desire to be heard to this Point as not having spoke to it yet Mr. Sol. Gen. Pray Sir let me make my Objection to your being heard for I believe you and I have been chid several times for speaking over and over the same thing Sir R. Sawyer This that we now offer iâ—… not to the same Point that we have spoken to already Mr. Sol. Gen. We are now speaking to the Reading of the Paper and you have spoken to it already Sir R. Sawyer If the Court will please to hear us we have that to offer against the Reading of that Paper which has not been offered yet L. C. I. Sir Robert Sawyer I take it it is in the Breast of the Court â—…o heâ—… when they will and as much as they will and whom they will for if Three or Four have been heard of a side to speak what they will the Court may very well depend upon the Learning of those Three or Four that they say what can be said upon the Point and that 's enough but if Six or Seven desire to be heard over and over to the same thing certainly the Court may stop at Three or Four if they will. Sir R. Sawyer This is a new Objection that none of us have been heard to yet Mr. Finch My Lord that which I offer is not contrary to the Rules of Law nor contrary to the Practice of the Court nor was I going any way to invade that Priviledge which Mr. Sollicitor claims of making Objections and not receiving an Answer Mr. Sol. Gen. What a fine Declamation you have now made I never claimed any such right but I oppose your being heard over and over to the same thing Mr. Att. Gen. Pray my Lord let 's come to some Issue in this matter L. C. I. I will hear you but I would not have you introduce it with a reflection upon the King's Council Mr. Sol. Gen. My Lord if you impose that upon him you stop his Mouth for some Men cannot speak without reflection L. C. I. On the other side pray Mr. Sollicitor give us leave to hear fairly what they have to say for I perceive he cannot offer to speak but you presently stop his Mouth Mr. Finch My Lord that which I was going to say is another matter than any thing that has been yet offered We say that this Paper ought not to be Read for that they are obliged by Law to prove their Information and consequently having laid a particular place where the thing was done in the Information they ought to prove that this was done in that place The Evidence that they have given is of my Lords the Bishops Writing this Paper and they have laid it to be done in Middlesex and this with submission to your Lordship is local and they must prove it to be Written in Middlesex where they have laid it or else they fail in their proof This is another Objection which as yet hath not been spoken to That if there be a proof of their Hand-writing yet there is no proof where that Hand was Written and therefore they are not yet got so far as to have it Read against my Lords Mr. Att. Gen. For that Point my Lord we say This would have been as properly said after the Paper had been Read when they come to make Objections against our Proof by way of Defence and with submission it had been more proper then than it is now For what are we now doing My Lord we are Proving that such a Paper was Subscribed by my Lords the Bishops and Sir Iohn Nicholas gives you an Account that he had it from his Majesty at the Council and that certainly is in the County of Middlesex and iâ—… will concern you to Prove that it was Written elsewhere Mr. Serj. Pemberton That 's very well Mr. Attorney sure you do not think as you speak Mr. Att. Gen. Here is a Paper Composed and Written by you that Sir Iohn Nicholas says he had from his Majesty how he came by it I suppose you will tell us by and by this is your Hand-writing that I think we have proved sufficiently this is found in the County of Middlesex and you come and tell us that we must Prove that it was Written in the County of Middlesex and it is taken to be Written where it was found unless you Prove the contrary Mr. Serj. Pemberton That 's pretty Doctrine indeed and very new Mr. Sol. Gen. My Lord here 's an Objection made too timely we are now upon Reading of this Paper and the Question is Whether it shall be Read or not be Read. Surely we have given Evidence enough to induce the Court to Read it and it is another Question that will come time enough afterwards Where it was Writen L. C. I. Truly I do not think it
Council and this is nothing but a Petition against an Order of Council and if there be an Order that commands my Lords the Bishops to do a thing that seems grievous to them surely they may beg of the King that he would not insist upon it And for this Matter they were so well satisfied about it and so far from thinking that it was any part of a Libel that they left it out of the Information and so have made a deformed and absurd Story of it without Head or Tall a Petition directed to no Body and for nothing it being without both Title and Prayer so that this is plain is was lawful to Petition Then my Lord the next Thing is the Reasons which my Lords the Bishops come to acquaint the King with why in Honour and Conscience they cannot comply with and give obedience to this Order and the Reasons my Lord are two The first Reason that is assigned is the several Declarations that have been in Parliament several of which are mentioned that such a Power to dispense with the Law is against Law and that it could not be done but by an Act of Parliament for that is the meaning of the word Illegal that has no other signification but unlawful the same word in point of signification with the word Illicitè which they have used in their Information a thing that cannot be done by Law and this they are pleased to tell the King not as declaring their own Judgments but what has been declared in Parliament though if they had done the former they being Peers of the Realm and Bishops of the Church are bound to understand the Laws especially when as I shall come to show you they are made Guardians of these Laws and if any thing go amiss and contrary to these Laws they ought to inform the King of it My Lord the next thing is Because it is a Thing of so great moment and the Consequences that will arise from their publishing of this Declaration and that too my Lord for the latter I shall begin first with there can be no Question about or any pretence that this is libellous or false for certainly it is a Case of the greatest Consequence to the whole Nation that ever was therefore it cannot be false or libellous to say so My Lord I would not mention this for I am loth to touch upon things of this Nature had not the Information it self made it the very Gift of the Charge for the Information if there be any thing in it says that it was to diminish the King's Prerogative and Regal Power in publishing that Declaration Now my Lord what the Consequence of this would be and what my Lords the Bishops meant by saying It was a Cause of great Moment will appear by considering that which is the main Clause in the Declaration at which my Lords the Bishops scrupled which is the main Stumbling-block to my Lords and has been to many honest Men besides and that is this We do likewise declare It is our Royal Will and Pleasure that from hence-forth 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 Now my Lord this Clause either is of some legal â—…ect and Signification or it is not If Mr. Attorny or the King's Council do say it is of no Effect in Law then there is no harm done then this Petition does no ways impeach the King's Prerogative in saying it has been declared in Parliament according as the King's Counsel do agree the Law to be But my Lord if it have any Effect in Law and these Laws are suspended by virtue of this Clause in the Declaration then certainly my Lord it is of the most dismal Consequence that can be thought of and it behoved my Lords who are the Fathers of the Church humbly to represent it to the King. For my Lord by this Declaration and particularly by that Clause in it not only the Laws of our Reformation but all the Laws for the preservation of the Christian Religion in general are suspended and become of no force if there be such an Effect in Law wrought by this Declaration as is pretended that is that the Obligation of Obedience to them ceaseth the Reason of it is plain the words cannot admit of such a Quibble as to pretend that the Execution of the Law is not the Suspending of the Law and that the Suspending the Execution of the Law is not a Suspending of the Law for we all know the Execution of every Law in its primary Intent is Obedience to it that of the Penalty comes in by way of Punishment and Recompence for their Disobedience Now my Lord if this Declaration does discharâ—… the King's Subjects from their Obedience to and the Obligation from those Laws then pray my Lord where are we Then all the Laws of the Reformation are suspended and the Laws of Christianity it self by those latter words 〈◊〉 or for or by reason of Religion in any manner whatsoever so that it is not confined to the Christian Religion but all other Religions are permitted under this Clause And thus all our Laws for keeping the Sabbath and which distinguish us from Heathens will be suspended too My Lord this is such an Inconvenience as I think I need name no more and it is a very natural Confequence from that Clause of the Declaration it discharges at once all Ministers and Clergy-men from performing their Duty in reading the Service of the Church it discharges their Hearers from attending upon that Service When a Law is suspended the Obligation thereof is taken away and those that before thought themselves bound to obey now conclude they are not so obliged and what a mischief that will be to the Church which is under the Care of my Lords the Bishops your Lordship will easily apprehend These things my Lord I only mention to shew the great and evil Consequences that apparently follow upon such a Declaration which made my Lords the Bishops decline obeying the Order and put them under a necessity of applying thus to the King to acquaint him with the Reasons why they could not comply with his Commands to read this Declaration to the People because the Consequences thereof were so great it tending naturally to lead the People into so great an Error as to believe those Lawâ—… were not in Force when in Truth and Reality they are still in Force and continue to oblige them And that being the second Reason in this Petition I come next to consider it to wit thâ—… the Parliament had often declared this pretended Power to be Illegal and for that we shall read the several
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
Religion that was intended to be prohibited and so much Care was taken and so many Statutes made to prohibit it will come in and all this Care and all those Statutes go for nothing This one Declaration sets them all out of doors and then that Religion stands upon equal Terms with the established Religion My Lord We say this farther that my Lords the Bishops have the Care of the Church by their very Function and Offices and are bound to take care to keep out all those false Religions that are prohibited and designed to be kept out by the Law. My Lords the Bishops finding this Declaration founded upon a meer pretended Power that had been continually opposed and rejected in Parliament could not comply with the King's Command to read it My Lord Such a Power to dispense with or suspend the Laws of a Nation cannot with any shadow of Reason be It is not long since that such a Power was ever pretended to by any but such as have the Legislative too for it is plain that such a Power must at least be equal to the Power that made the Laws To dispense with a Law must argue a Power greater or at least as great as that which made the Law. My Lord It has been often said in our Books That where the King's Subjects are concerned in Interest the King cannot suspend or dispense with a particular Law. But my Lord how can the King's Subjects be more concern'd in Interest than when their Religion lies at stake It has been resolved upon the Statute of Symony that where the Statute has disabled the Party to take there the King could not enable him against that Act of Parliament And shall it be said that by his Dispensation he shall enable one to hold an Office who is disabled by the Test-Act My Lord We say The Course of our Law allows no such Dispensation as this Declaration pretends to And he that is but meanly read in our Law must needs understand this That the Kings of England cannot suspend our Laws for that would be to set aside the Law of the Kingdom And then we might be clearly without any Laws if the King should please to suspend them 'T is true we say the last King Charles was prevailed upon by Mis-information to make a Dispensation somewhat of the nature of this though not so full an one for that dispensed only with some few Ceremonies and things of that nature But the House of Commons this taking Air in 1662. represent this to the King by a Petition And what is it that they do represent That he by his Dispensation has undertaken to do that which nothing but an Act of Parliament can do that is the dispensing with Penal Laws which is only to be done by Act of Parliament And thereupon it was thought fit upon the King's Account to bring in an Act for it in some Cases My Lord The King did then in his Speech to the Parliament which we use as a great Argument against this Dispensing Power say this That considering the Circumstances of the Nation he could wish with all his Heart that he had such a Power to dispense with some Laws in some Particulars And thereupon there was a Bill in order to an Act of Parliament brought in giving the King a Power to dispense but my Lord with a great many Qualifications Which shews plainly that it was taken by the Parliament that he had no Power to dispense with the Laws of himself My Lord Afterwards in 1672. the King was prevailed upon again to grant another Dispensation somewhat larger L. C. I. Brother Pemberton I would not interrupt you but we have heard of this over and over again already Mr. S. Pemberton Then since your Lordship is satisfied of these things as I presume you are else I should have gone on I have done my Lord. Mr. S. Levinz But my Lord we shall go a little higher than that and shew that it has been taken all along as the ancient Law of England that such Dispensations ought to be by the King and the Parliament and not by the King alone Mr. Soll. Gen. My Lord if you will admit every one of the Council to Speech it before they give their Evidence when shall we come to an End of this Cause We shall be here till Midnight L. C. I. They have no Mind to have an End of the Cause for they have kept it three Hours longer than they need to have done Mr. S. Pemberton My Lord This Case does require a great deal of Patience L. C. I. It does so Brother and the Court has had a greas deal of Patience But we must not sit here only to hear Speeches Mr. Att. Gen. Now after all their Speeches of two Hours long let them read any thing if they have it Sir Rob. Sawyer We will begin with the Record of Richard the Second Call William Fisher. William Fisher Clerk to Mr. Ince sworn L. C. I. What do you ask him Sir Rob. Sawyer Shew him that Copy of the Record The Record was then shewn him L. C. I. Where had you those Sir Mr. Fisher. Among the Records in the Tower. L. C. I. Are they true Copies Mr. Fisher. Yes my Lord. L. C. I. Did you examine them by the Record Mr. Fisher. Yes my Lord. Sir Rob. Sawyer Then hand them in put them in Clerk reads Ex Rotulo Parliamenti de Anno Regni Regis Richardi Secundi XV. No 1. My Lord It is written in French and I shall make but a bad Reading of it Sir Sam. Astrey Where is the Man that examin'd it Do you understand French Mr. Fisher. Yes my Lord. Sir Rob. Sawyer The Record is in another Hand than this they may easily read it Mr. Soll. Gen. Who copy'd this Paper Mr. Fisher. I did examine it Mr. Soll. Gen. What did you examine it with Mr. Fisher. I look'd upon that Copy and Mr. Halstead read the Record L. C. I. Young Man read out Fisher reads Vendredy Lande maine del Almes qu'estoit le primier jour Mr. Soll. Gen. Pray tell us what it is you would have read Mr. S. Levinz I 'll tell you what it is Mr. Sollicitor 'T is the Dispensation with the Statute of Provisors And the Act of Parliament does give the King a Power to dispense till such a time Mr. Soll. Gen. Don't you think the King's Prerogative is affirmed by many Acts of Parliament Mr. S. Levinz If the King could dispense without an Act of Parliament what need was there for the making of it Mr. Soll. Gen. Mr. Serjeant We are not to argue with you about that yet L. C. I. Read it in English for the Jury to understand it Mr. Fisher. My Lord I cannot undertake to read it so readily in English. Mr. I. Powel Why don't you produce the Records that are mentioned in the Petition those in King Charles the Second's time Mr. S. Levinz We will produce our Records in Order of Time as they
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
and a Man must not be his own Judg nor his own Carver nor must every Man create Difficulties of his own nor set upon Petitioning in this sort But there I lay my Foundation That in such a matter as this there ought to have been the Impeachment of the Commons in Parliament before these Lords could do any thing and I know nothing can be said for the Bishops more than this That they were under an Anathema under the Curse that Sir Robert Sawyer speaks of and for fear of that they took this Irregular Course But some would say Better fall into the hands of God than of Men some would say so I say I know not what they would say but these being the Methods that these Lords should have taken they should have pursued that Method the Law should have carved out their Relief and Remedy for them but they were for going by a new Fancy of their Own. My Lord the Law continued thus and was practised so till the 3. Hen. 7. where the Grievance was found that Offences in the Intervals of Parliament could not be well punished and then comes the Statute that sets up the Court of Star-Chamber and there Men were often brought to Judgment and Punishment for their Sins and though very great Power was given them yet they arrogated to themselves a greater and therefore that Court is abolished by the Statute of the 15th Car. 1. and what is the reason of abolishing that Statute Because the Star-Chamber did not keep within their bounds that the Law set them but assumed to themselves a larger Power than the Law would allow and grew very Exorbitant and very Grievous to the Subject And another reason was which the Statute of 15th Car. 1. founded it self upon because there was nothing that was brought in Judgment before that Court but might be relieved and remedied in the oridinary methods of Justice in the Courts of Westminster Hall So that upon those two Considerations because that Course was exorbitant and because all the Sins and Misdemeanours that were punished there might be punished in an ordinary way of Law in another Court and therefore there was no need of that Court and so it was abolished and the Subject was pretty safe If there was a Crime committed here a Man might come properly before your Lordship into this Court and have it punished My Lord they find fault with the Words in the Information and they say why are these Words put in Seditious Malicious If the matter be Libellous and Seditious we may Lawfully say it and it is no more than the Law speaks it results out of the Matter it self and if it be a Libellous Paper the Law says it is Maliciously and Seditiously done and these Gentlemen need not quarrel with us for so are all the Informations in all times past and 't is no more than the Vi Armis which is Common Form. It may be said How can the publishing of a Libel be said to be done Vi Armis That is only a Supposition of Law and they may as well Object to the conclusion of the Information that it was Contra Coronam Dignitatem Domini Regis if it be an Illegal thing or a Libel these are necessary Consequences it is no more than the speaking of the Law upon the Fact. But my Lord let us a little consider whether this Matter were Warrantable and whether they had any Warrant to do what was done they pretend it was done upon this Account That the King had set forth a Declaration and had Ordered them to Read it which to excuse themselves from they make this Petition or this Libel call it what you will and they use this as the main Argument That they say the King has done Illegally and they tell the King plainly so that it is Illegal for they take notice of this Declaration and say it is Illegal because it is contrary to the Declarations of Parliament in 1662 1672 and 1685. Pray my Lord let us consider a little whether there be any Declaration in Parliament that they have given Evidence of Have they read any Declaration of the Parliament in 1662 What is a Declaration in Parliament but a Bill that is passed by the King Lords and Commons That we know to be the meaning and no other if it pass the Commons it is no Declaration in Parliament nay if it pass the Lords and Commons it is not a Declaration in Parliament except it also pass the King all these things are Nullities and the Law takes no notice of them we have it in our Books over and over and no Court ought to suffer such Evidence to be given I know these Gentlemen are very well acquainted with the Authority in Fitz-Herbert's Title Parliament there was an Act that was said to be by the King and the Lords but because the Commons did not agree to it it is declared and adjudged to be a Nullity and the Court would take no notice of it and how can any Man call that a Declaration in Parliament which is only a Vote of the House of Commons or of the Lords No sure that is one of the Heads I go upon It 's not a Declaration in Parliament unless it be by Act of Parliament Indeed my Lord there is another sort of a Declaration in Parliament before the Lords as they are a Court of Judicature and that is a fair Declaration too for if any thing comes Judicially before the Lords either by Writ of Error or by natural Appeal from any of the other Courts or by Adjournment and there be any Judgment given That is a Declaration in Parliament and may be fairly so called So likewise there is another Judicial Declaration which is when any thing comes before the Lords Judicially upon an Impeachment of the Commons and they give Judgment upon that Impeachment That is a Declaration in Parliament But to say that there is any other Declaration in Parliament is to say more than these Gentlemen can make out if they will shew me any such I will submit to them and not speak a Word against my Lords the Bishops but if these Learned Gentlemen cannot shew me any such then they have not said that was true in this Petition that it was so and so declared in Parliament For let us consider what there is in this Case upon this Evidence for that in 1662. is only a Vote and an Opinion of the House of Commons and I always understood and have been told so by some of the Gentlemen of the other side that such a Vote signifies nothing But besides it seems to be a mistaken Address for they say in it That the Declaration in 1662. which they Address against was the first Declaration of that sort to suspend Laws without Act of Parliament and yet in the same breath they do take notice of the King's Declaration from Breda But here is a mighty Argument used from the King's Speech That
in my Case and you were one of them that prosecuted me for ought I know or if you did not prosecute me you preached against me or if you did not some of your Tribe did But so my Lord it was in many other Cases within time of Memory Sir Robert Sawyer has past a Complement upon me of my great Skill in Parliament matters but truly there needs no great Skill in matters where the Law is so plain a Peer they agree may be in Prison for Treason Felony or Breach of the Peace but that Breach of the Peace I say they is where the Law requires Sureties of the Peace but is there any Certainty where Sureties of the Peace shall be required and where not Then I would put this Cafe These Lords have contrived and published a Seditious Libel against the King and His Government and whether this be not such a Breach of the Peace as will require Sureties of the peace is the Question before you And it plainly appears to be so in Sir Baptist Hick's Case in Hobbart If a man write a private Letter provoking another to fight although there be no fighting this is a Breach of the peace now a Letter can do no Wrong in that kind but as it incites and stirs up to fighting which may occasion Blood-shed and I think there cannot be a greater Breach of the peace than for a man to come to the King's Face and publish a Libel against Him and yet according to their Doctrine this man shall go away and you shall not take him up but take a Subpoena against him and wait for the delay of all the ordinary process and they tell you another thing that a Capias does not lie upon an Information against the person of a Peer and that there is no precedent of any such thing but I would pray them to remember the Case of my Lord Lovelace about some three years ago for breaking a Foot-mans Head. It seems if a man libels the King in His own presence that is not so great a matter as a little Correction to an insolent Foot-man but there he was bound in a Recognizance to appear here in this Court and accordingly he did appear and was Charged with an information and as to that precedent I do believe Sir Robert Sawyer and Mr. Finch won't contradict me this was in the first year of this King There was likewise my Lord of Pembrooke's Case who went to a disorderly House and there frighted some people and we moved the Court and had an Attachment against him for a misdemeanour and he was glad to Compound the thing or it had not ended so soon as it did and yet if a Lord comes to the King's Person and affronts Him to his very Face will not an Attachment lie against him for it Certainly it will. My Lord we have gone out of the way too much already and these Gentlemen will lead us farther but we hope your Lordships will reduce us to the methods of the Law Here is an Information which we desire may be read if they have any thing to plead to it their time for that will come after it is read if they think they have been illegally imprison'd it appears plainly upon this Return who they were that did Commit them here are a great many Noble Lords to Answer an Action of false imprisonment if these Lords think fit and may have these Learned Gentlemen that are very well able to advise them what they should do in it Sir Robert Sawyer We pray your Lordships Judgment whether the Cases put by Mr. Sollicitor are like our Case Mr. Soll. Gen. They are as like as Sir Robert Sawyer is to Mr. Attorney that was Sir Robert Sawyer Those Cases are of apparent Breaches of the peace so likewise was my Lord of Devonshire's Case but certainly that was not at all like this Mr. Finch With your Lordships Favour I would add but one Word and I would repeat nothing of what has been said all that I shall say is this There is a great deal of Difference between an Actual Breach of the Peace and that which in the bare Form of an Information is a Breach of the Peace by Construction of Law it being contra pacem Suppose it be laid that a man did vi armis speak Words will that make the Words a Breach of the peace Mr. Soll. Gen. It must be vi armis and certainly is a Breach of the peace Mr. Finch If a man write a Petition are the pen and ink that he uses the Arms Mr. Soll. Gen. My Lord I hope Mr. Finch remembers what I heard him say in Algernoon Sidney's Case scribere est agere Mr. Finch I think it is so Mr. Sollicitor but every Action is not a Breach of the peace Ld. Ch. Iust. We let my Brothers deliver their Opinions I will give you mine Mr. Iust. Allyb. The single Question now is Whether or no that which Mr. Sollicitor was pleased to name as the Crime and lay it to the Charge of my Lords the Bishops that is a seditious Libel be a Breach of the peace I do confess that there is little of Argument to be drawn from Forms of Indictments and I shall put no great stress upon the words vi â—…mit where the Fact will not come near it but if a Commitment may ensue as they seem to agree wherever surety of the peace may be required nothing seems more important to me than that surety of the peace should be required where there is any thing of Sedition in the Case and wherever there is a Seditions Act I cannot tell how to make any other Construction of it but that it is an Actual Breach of the peace that is my Opinion Mr. Iust. Powell I am of the same opinion in this point too as I was in the other point before It was a matter of great consequence I thought upon the former point but now it appears to me to be of far greater consequence than it did at first for here all the Great High and Noble Peers of England are concerned in it as to theâ—… priviledge Our Predecessors in this Court heretofore would not determine the priviledges of the Peers but left them to themselves to make what Judgment they pleased of them I think truly 't is a thing of that weight that it may be very fit for the Court to take time to consider of it and I declare for my own part I will not take upon me to deliver â—…y Opinion in a matter of this Consequence before I have Consulted all the Books that can give me any Light in the Case Mr. Iust. Allybone Brother Powell I am not determining limitting or cramping the priviledge of Peers but I am only considering whether or no a seditious Libel be a breach of the Peace 'T is agreed to be on all hands a breach of the Peace Is there any thing that will require Sureties of the Peace to be
in Parliament and particularly in the Years 1662 and 1672. and the beginning of Your Majesties Reign and is a matter of so great Moment and Consequence to the whole Nation both in Church and State that your Petitioners cannot in Prudence Honour or Conscience so far make themselves Parties to it as the Distribution of it all over the Nation and the solemn Publication of it once and again even in God's House and in the time of his Divine Service must amount to in common and reasonable Construction In contemptum dicti Domini Regis nunc Legum hujus regni Angliae manifestum in malum exemplum omnium aliorum in tali casu delinquentium ac contra pacem dicti Domini Regis nunc Coronam Dignitatem suas c. Unde idem Atornatus dicti Domini Regis nunc generalis pro eodem Domino Rege petit advisamentum Curiae hic in praemissis debitum legis processum versus praefatos Willielmum Archiepiscopum Cantuariensem Willielmum Episcopum Asaphensem Franciscum Episcopum Eliensem Iohannem Episcopum Cicestrensem Thomam Episcopum Bathonensem Wellensem Thomam Episcopum Petriburgensem Ionathanum Episcopum Britollensem fieri ad respondendum dicto Domino Regi de in praemissis c. T. Powys W. Williams Mr. Attor Gen. My Lord we humbly pray that according to the Rules of the Court in such Cases my Lord Archbishop of Canterbury and my Lords the Bishops may Plead to the Information Mr. Solli Gen. My Lords the Bishops are here in Custody in Court upon the highest Commitment that can be in this Kingdom to wit That of the King in Council and we pray that according to the Course of the Court they may Plead to the Information presently L. Ch. Just. What does his Grace and my Lords the Bishops say to it Mr. Serj. Pemberton Will your Lordship give us leave who are of Council for his Grace my Lord of Canterbury and the rest of my Lords the Bishops to speak a word in this Matter L. Ch. Just. Ay Brother go on Mr. Serj. Pemberton That which we have to desire of your Lordship and the Court is this We have now heard this Information Read and 't is plain we could know nothing of this before the Warrant of Commitment being only in general for a Libel and this being a Case of the greatest Consequence peradventure that ever was in Westminster Hall that I think I may boldly say it is a Case of the greatest Consequence that ever was in this Court and it being a matter of this Nature that these Great and Noble Persons my Lords the Bishops are here taxed with that is for making a Seditious Libel contained in such a Petition as though it was a Libel to Petition the King We do beg this of your Lordship that it being of this great Importance to the end we may come prepared to say what we have against it We may have an Imparlance till the next Term. Mr. Finch Pray my Lord favour me with a Word on the same side for my Lords the Bishops You Lordship sees now how necessary the trouble we gave you before in making our Objections against the reading of the Information was and what the drift and aim of the Kings Councel was in the desiring the Information to be read first for now it is read What is it that they desire of your Lordships They desire that my Lord Arch Bishop and my Lords the Bishops being in Custody and brought here in Custody they may be now so Charged with this Information as to Plead presently This my Lord we oppose and with humble Submission we ought to have time to Imparle and a Copy of the Information that we may consider what we have to Plead to it for however we come here into Court whether legally or not legally yet ought we in the one and in the other Case to have time to Consider of our Defence And my Lord till of later time this Practice which the Kings Counsel now calls the Course of the Court was never used nor was any Man required to Plead immediately and my Lord if the Practice of the Court has not been anciently so as I do believe they will scarce shew it to be Ancienter than a few years last past then with humble submission though the Course of the Court have been so for some little time past yet it is not in the power of the Couâ—… as we humbly Conceive to make a Course in prejudice of all the Priviledges that the Kings Subjects are by the Antient Rules of Law intituled to they cannot make a new Law in prejudice of any Right or Priviledge which the Subject hath and call it the Course of the Court Now that this which we desire for my Lords the Bishops is the Right and Priviledge of the Subject is most manifest for there might be many Defences that a Man may have to make to an Accusation of this Nature which it is impossible for him to know at the first hearing of an Information read and yet which would be necessary for him to make use of or at least it would be impossible for him to make use of in such a manner as the Law doth allow of and require It may be the Pleas which he has to Plead may be such as that he has not time to put into form there may be Matters upon the hearing the Information read that it would be necessary for him to give answer to which he knew not of before and therefore may neither have Materials ready nor be capable of putting them if he had them ready into such Form as the Law requires They tell you on the other side that if a Man be brought into Court by Legal Process he may be Charged with any Information whatsoever that they are not tied to the Fact alleadged in the Commitment but finding the Party under a Legal Imprisonment they can exhibit an Information against him for any other Offence Then my Lord would I fain know which way any Man alive can be prepared to make his Just and Legal Defence for he knows not his Accusation for tho' he think it may be for that for which he was Committed yet it may prove otherwise and then he can be no way provided with Materials for his Defence but he must lose all Advantages which the Law gives him for his Defence My Lord if this be the course of latter times yet you will not take that to be such a Law as is binding to all future times and we are sure the King's Counsel cannot shew that this was the Ancient Practice for that was quite otherwise L. C. Iust. Mr. Finch you were not here I suppose when this Question came in debate in this Court lately in the Case of a very great Person 't was urged very earnestly and very learnedly by one that stands by you we upon that Debate asked Sir Samuel Astry what the Course of the
I agree with them it is not For if we had brought three or four Men that had seen them Write this very Paper and put their Names to it that had been a stronger Evidence than this that we have given but whether we do not give such a sort of Evidence as may induce the Jury to belive that this is their Paper and their Hands to it we submit they say This is such a method as never was taken but I admire that that should be said by Men of their Experience and Knowledge in the Law for is there any thing more usual or any other course taken for the proof of Hands than for a Wittness to say He knows the Hand of the Party very well for he has often seen his Hand-writing or received Lettters from him and if you shew him the thing that you would prove to be his Hand and he says I do believe this to be his Hand for this Reason Because I have had other things of his Writing Certainly in the Experience of any Man that has practised this is an Evidence that is given every day and allowed for Evidence For the Case of Mr. Sidney which your Lordship has heard mentioned it is certainly very opposite to this purpose it is insisted upon and pretended That that was Evidence because it was found in his Study but without all doubt that would not be the reason for may not a Book of another Man 's Writing be found in my Study and he insisted upon it in his own Defence but the Answer was That it should be left as the Question Whether the Jury would believe it upon the Evidence that was given of its being his own Hand-writing And so in this Case though it be not so strong Evidence as if we had brought those that had seen them Write it yet Evidence it is and whether it be sufficient to satisfie the Jury may be a Question but no Question it is good Evidence in Law. Mr. Sol. Gen. It is a wonderful thing they say That such Evidence should be offered but truly my Lord it is a much stranger thing to hear Mr. Serj. Pemberton say It was never done before and then to make that Remark to your Lordship upon the Case of Sidney which I 'le put to your Lordship and the Court as a Case and let him contradict me if he can and then we shall see how far it goes Sidney was Indicted for High Treason and the Treason insisted upon was A Writing supposed to be his it being found in his Study the Question was Whether it was his Hand-writing or no there was no positive Evidence that is was his Hand-writing there was no Evidence produced that proved it to be his Hand-writing for there was no one that Swore That they they saw him Write it there was nothing proved but the similitude of Hands Ay but says Mr. Serj. Pemberton It was found in his Study will Mr. Serj. Pemberton be content that all the Libels that are found in his Study shall for that reason be adjudged to be Libels to be his Hand-writing and he to be a Libeller for them I think he will make a severe Declamation against that and he would have very good reason for it Certainly that which was Evidence in one Man's Case will be Evidence in another God forbid there should be any such distinction in Law and therefore I conclude that this is good Evidence Mr. Serj. Pemberton The Court went upon this That it was found in his Study and compared with Letters and Bills of Exchange produced in Court which were Sworn to be of his Hand-writing Mr. Sol. Gen. My Lord I was by all the time for I was ordered to attend him in the Tower and therefore I can tell what passed as well as any Body My Lord they proved no more as to that Libel but only by Comparison of Hands they had no other proof in that Case but by comparing the Hand-writing and that was insisted upon to be a mighty fallible thing That which they would have for us to compare Paper with Paper it is true would make the proof somewhat stronger if we could in such a Case as this be able to produce such Evidence but I appeal to your Lordship and shall leave it to the Jury to consider which is better Evidence these Men that have been produced that have been Conversant with these Lords and acquainted with their Hand-writing and who as your Lordship sees are not willing Men to give Evidence they avoid it as much as they can and they Swear it all to be the Hand-writing of the Archbishop of Canterbury as they believe which is as far as any Man can Swear One says the whole Body of the Paper is my Lord of Canterbury's Hand and he knows it very well so that we are not upon a single Name but a whole Paper that contains many Lines and this is as much as can be proved by any one that did not see the thing Written Then my Lord for the rest of the Company the Evidence is not so strong against every one of them as it is against my Lord Archbishop but is strong enough certainly to Convict them of what we accuse them of and pray my Lord what was the Objection in Sidney's Case but what has been mentioned here That any Man's Hand might be Counterfeited I remember in that Case there was one Mr. Wharton a young Gentleman then in the Court that undertook to the Court That he would Counterfeit that Hand presently and he that was to Swear the Comparison should not know which was the one and which was the other which certainly was a stronger Case than this And I see some of the Learned Gentlemen that are now standing at the Bar who pressed this matter very hard against Mr. Sidney and Mr. Sidney lost his Life upon that Comparison of Hands though Mr. Wharton did Testifie how easie a matter it was to have a Man's Hand Counterfeited and we all know was a Man of Value and Quality so there is a President for Mr. Serj. Pemberton that never heard of this Law before They say the proving of similitude of Hands is no Evidence unless you prove the actual Writing what a condition then will England be in when Witnesses are Dead Is it not the most common practice that can be to produce Witnesses to prove such Men are Dead whose Names are set as Witnesses to Deeds and they Swear They believe it to be the Hand-Writing of those Witnesses Can there be any greater Evidence of such a Case unless it be the confession of the Party himself My Lord we are now only upon reading this Paper We have been heard and they have been heard now we pray the Paper may be Read. Mr. Recorder We pray it may be Read. Mr. Serj. Levinz If your Lordship please Mr. Sol. Gen. We are not to be replied upon Mr. Serjeant L. C. I. You have spoke Brother Levinz and you have
not signed it or written it but had caused it to be published he may be found guilty of so much But if he be Guilty of any one of these things it is enough and if he be Guilty of none of the other things laid in the Information yet if he be Guilty of causing it to be published by his consenting that the rest of the Bishops should do it that will be enough to maintain this Information Then my Lord is there any Evidence brought against what we have proved That he did not consent Mr. Just. Powel But where was this Consent of his given Mr. Solicitor Mr. Sol. Gen. Pray good Sir give me your Favour I think I am in a plain Case Mr. Serj. Pemberton So you are truly Mr. Sol. Gen. Why good Sir you ought to make out the Locality if you 'l take advantage of it Mr. Serj. Pemberton That 's very well indeed this is the first time I ever heard that Doctrine Mr. Sol. Gen. I cannot help that but certainly the Law is plain we have proved there was such a Fact as this done and they do not go about to prove that it was done elswhere than where we have laid it for if they did their Witnesses would be cross-examined by us and then we know what would become of them then the Truth of the matter would come out Therefore I would make all this constare The Archbishop might be at Lambeth and yet Guilty in Middlesex by his Concurrence with what was done in Middlesex And I say my Lord this is natural upon the Evidence that has been given because when they were interrogated at the Council and confessed the Paper to be theirs they made no such Explanation of their Confession of which they can make any Advantage in their Defence Here has been no Body produced that proves any thing to be done out of Middlesex so that still if he 's Guilty of the Fact proved he must be Guilty in Middlesex Serjeant Baldock And it does not appear in this Case but that my Lord Archbishop might write the same thing in Middlesex tho' he was at Lambeth so long as the Witness speaks of Mr. Just. Powel How do you make out that Brother Serj. Baldock He might do it when he câ—…me over to the Council Sir Rob. Sawyer He must do it after it was presented Serj. Baldock Might he not be so long here on this side the Water as to make such a short thing as this before it was delivered half a quarter of an Hour would have done it L. Ch. Iust. That 's a thing not to be presumed Brother especially since he is proved not to have been in Middlesex for so long together Sir Rob. Sawyer Mr. Serjeant is mightily mistaken for it is not pretended That it was delivered at the time when the Archbishop and my Lords the Bishops were before the Council Mr. Recorder Either the Making and Contriving or the Publishing of this Libel will do upon this Information for they shall be taken to be one continued complicated Act and then the Party may be tryed in either of the Counties as the King will as in the case of Treason it has been over and over again adjudged That if a Man does one Act of Treason in one County and afterwards goes into another County and does another Act of Treason the Jury of either of the Counties may enquire of the Fact done in the other If they then should take those two as several Acts they were several Offences and they may be found Guilty of the one and acquitted of the other but if they are taken as one continued Act they are but one Offence and the Jury of either County may try it If then in this Case the Jury of this County may take notice of the Publication which was here as certainly they may if they will agree as the Law certainly is That the Writing of a Letter will be a sufficient Publication if the matter be Libellous And there are multitudes of Precedents for that and that the bare setting of a Man's Hand has been adjudged to be a Publication Then give me leave my Lord to bring it to a similar Case Suppose a Man write a scandalous Letter from London to a Judge or Magistrate in Exeter and sends it by the Post and the Letter is received from the Post at Exeter and there opened would any Man make a Question whether the Gentleman that sent the Letter may not be indicted and prosecuted for a Libel at Exeter where the Libel was received Mr. Just. Powel There 's no question of that Mr. Recorder that comes not home to the Fact in our Case undoubtedly in the Case that you put the Law is as you said but it is far different from this Case L. Ch. Iust. There 's no Body opposes the Publication but the framing of it where it was made Mr. Recorder Supposing then the Party were at Exeter and he were interrogated before the Magistrate Whether that were his Hand or no and he should own it to be his Hand can any body doubt whether his owning that to be his Hand would be a sufficient Evidence to prove a Publication Mr. Just. Powel But is that any Evidence where it was written Or if it be not proved that it was received at Exeter would that be a Proof of a Publication at Exeter L. Ch. Iust. They do not deny the Publication Sir Rob. Sawyer We do deny that there was any Publication and they have proved no place where it was made Mr. Sol. Gen. My Lord we are not for turning my Lords the Bishops out of the way of Proof that is usual in such Cases let them take it if they will That this was contrived and made in Surrey But can they publish it in Middlesex without committing an Offence and that is it we stand upon We are not for laying a greater Load upon my Lords the Bishops than our Proof will answer Sir Rob. Sawyer We thank you for your Complement Mr. Solicitor Mr. Sol. Gen. Is this a fare way of interrupting us when we are speaking Durst any one have served you so when you were in the Kings Service We would make our Duty as easie as we can to my Lords the Bishops and it may be easier than other Men would have made it But my Lord let it be a doubtful case that we cannot tell which County it was made and contrived in if it were made and contrived in another County yet when they brought it into Middlesex there was a Publication in Middlesex and if my Lord of Canterbury consented to it and if he caused it to be published how can any Body ever get him off from that causing of it to be published Here is a Paper that must be supposed to be my Lord Archbishops Paper Now either the World must look upon it to be an Imposture put upon my Lords the Bishops or a real Paper made by them If it were an Imposture
the Noise of them in your several Countries and God be thanked they were but Noise without any worse Effects To cure the Distempers and compose the differing Minds that are yet amongst us I set forth my Declaration of the 26th of December In which you may see I am willing to set Bounds to the Hopes of some and to the Fears of others of which when you shall have examined well the Grounds I doubt not but I shall have your Concurrence therein The truth is I am in my Nature an Enemy to all Severity for Religion and Conscience how mistaken soever it be when it extends to Capital and Sanguinary Punishments which I am told were began in Popish Times Therefore when I say this I hope I â—…hall not need to warn any here not to inferr from thence that I mean to favour Popery I must confess to you there are many of that Profession who having served my Father and my self very well may fairly hope for some part in that Indulgence I would willingly afford to others who dissent from us But let me explain my self lest some mistake me herein as I heard they did in my Declaration I am far from meaning by this a Toleration or Qualifying them thereby to hold any Offices or Places of Trust in the Government Nay further I desire some Laws may be made to hinder the Growth and Progress of their Doctrine I hope you have all so good an Opinion of my Zeal for the Protestant Religion as I need not tell you I will not yield to any therein not to the Bishops themselves nor in my liking the Uniformity of it as it is now established which being the Standard of our Religion must be kept pure and uncorrupted free from all other Mixtures And yet if the Dissenters will demcan themselves peaceably and modestly under the Government I could heartily wish I had such a Power of Indulgence to use upon Occasion Sir Geo. Treby Pray Sir read that out distinctly Clerk reads I could heartily wish I had such a Power of indulgence to use upon Occasion as might not needlesly force them out of the Kingdom or staying here give them Cause to conspire against the peace of it My Lords and Gentlemen It would look like Flattering in me to tell you in what degree I am confident of your Wisdom and Affection in all things that relate to the Greatness and Prosperity of the Kingdom If you consider well what is best for us all I dare say we shall not disagree I have no more to say to you at present but once again to bid you heartily welcome Mr. Finch The next thing we shall shew you is that after the King had made this Speech and wished he had such a Power of Indulgence to use upon Occasion there was a Bill in the House of Lords brought in to enable the King to dispense with several Laws We shall shew you the Journal where it was Read and Committed but further than that it went not L. C. I. What Use do you make of this Mr. Finch Sir Rob. Sawyer You may easily apprehend the Use we shall make of it The King in his Speech says He wish'd he had such a Power the House of Lords thought he had not and therefore they order'd a Bill to be brought in to enable him Read the Journal of the Lords of the 13th of March 1662. Clerk reads Die Veneris XIII o die Martii 1662. After some Debate whether the House should be put into a Grand Committee for the further Debate of the Bill concerning His Majesty's Power in Ecclesiastical Affairs it was put to the Question viz. As many of your Lordships as would have this House adjourned and put into a Committee to consider of the said Bill say Content others Not Content Passed in the Affirmative And then the Lord Chamberlain of the Houshold was directed to take the Chair as formerly which he did accordingly And after Debate the House was resumed after the Grand Committee had appointed a Sub-Committee touching the said Bill Sir Rob. Sawyer This is all in the Journal of the House of Lords about this Matter We will now shew you the Bill it self Clerk reads An Act concerning His Majesty's Power in Ecclesiastical Affairs WHereas divers of His Majesty's Subjects through Error of Judgment and mis-guided Consciences whereunto the Licentiousness of these late unhappy Times have much contributed do not conform themselves to the Order of Divine Worship and Service established by Law and although His Majesty and both Houses of Parliament are fully satisfied that those Scruples of Conscience from whence this Nonconformity ariseth are ill grounded and that the Government of the Church with the Service thereof as now established is the best that is any where extant and most effectual to the Preservation of the Protestant Religion Yet hoping that Clemency and Indulgence may in time wear out those Prejudices and reduce the Dissenters to the Unity of the Church and considering that this Indulgence how necessary soevever cannot be dispensed by any certain Rule but must vary according to the Circumstances of Time and the Temper and Principles of those to whom it is to be granted and His Majesty being the best Judge when and to whom this Indulgence is to be dispensed or as may be most consistent with the publick Peace and without just Cause of Offence to others and to the end His Majesty may be enabled to exercise it with universal Satisfaction Be it Enacted by the King 's Most Excellent Majesty by Advice and with the Consent of the Lords Spiritual and Temporal and Commons in this present Parliament assembled and by the Authority thereof That the King's Majesty may by Letters Patents under the Great Seal or by such other Ways as to His Majesty shall seem meet dispense with one Act or Law made the last Session of this present Parliament Intituled An Act for the Uniformity of Publick Prayers and Administration of the Sacraments and other Rites and Ceremonies and for Establishing the Form of Making and Ordaining and Consecrating Bishops Priests and Deueotis in the Church of England and with any other Laws or Statutes concerning the same or requiring Oaths or Subscriptions or which do enjoin Conformity to the Order Discipline and Worship established in this Church and the Penalties in the said Laws imposed or any of them And may grant â—…fences to such of His Majesty's Subjects of the Protestant-Religion of whose inoffensive and peaceable Disposition His Majesty shall be perswaded to enjoy and use the Exercise of their Religion and Worship though differing from the publick Rule the said Laws and Statutes or any Disabilities Incapacities or Penalties in them or any of them contained or any Matter or Thing to the contrary thereof notwithstanding Provided always and be it Enacted That no such Indulgence Licence or Dispensation hereby to be granted shall extend or be construed to extend to the Tolerating or Permitting the Use or
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