THE PROCEEDINGS AND TRYAL IN THE CASE OF The Most Reverend Father in GOD WILLIAM Lord Archbishop of CANTERBURY And the Right Reverend Fathers in God WILLIAM Lord Bishop of St. Asaph FRANCIS Lord Bishop of Ely IOHN Lord Bishop of Chichester THOMAS Lord Bishop of Bath and Wells THOMAS Lord Bishop of Peterborough And IONATHAN Lord Bishop of Bristol In the Court of Kings-Bench at Westminster in Trinity-Term in the Fourth Year of the Reign of King Iames the Second Annoque Dom. 1688. Licensed and Entred according to Act of Parliament LONDON Printed for Thomas Basset at the George in Fleet street and Thomas Fox at the Angel in Westminster-Hall 1689. TO HIS Most Illustrious HIGHNESS WILLIAM HENRY Prince of Orange May it please Your Highness HOW deeply the Design was laid and with what Violence carry'd on by those who lately Steer'd the Helm of this State for the Subversion of the Establish'd Religion and Government of these Three Kingdoms is already sufficiently well known to Your Highness Among the rest one of their Chiefest Contrivances was by a Malicious and Illegal Prosecution to have extinguish'd the Brigthest Luminaries of the English Church to the end that the benighted People might the more easily after that have been misled into the Pitfals of Superstition and Slavery But as Heaven began their Disappointment in eluding both at once there Subtilty and Malice by the speedy Deliverance of the Seven Renowned Sufferers from the Jaws of their Oppressors So the utter Dissolution of their Arbitrary Command and Domineering Power under the Conduct of the same Providence was fully Compleated Great SIR by Your Deliberative Prudence and Undaunted Courage To Your Illustrious Highness therefore the Oblation of these Sheets containing an exact Accompt of the Prosecution and Tryal of those Heroick Prelates is most justly due as being That wherein Your Higness may in part discern the Justice of the Cause You have so Generously undertaken and that it was not without Reason that the English Nation so loudly Implor'd Your timely Assistance A clear convincement that it was not Ambition nor the desire of spacious Rule but a Noble and Ardent Zeal for the most Sacred Worship of God which rows'd Your Courage to rescue a Distressed Land whose Religion Laws and Liberties were just ready to have been overwhelm'd with French Tyranny and Romish Idolatry Therefore that the Nation may long continue under the Protection of Your Glorious Administration is the Prayer of Great SIR Your Highnesses most Humble Most Faithful and most Obedient Servants Tho. Basset Tho. Fox December 13. 1688. NOT long after the Tryal of his Grace the Lord Archbishop of Canterbury and the other Six Bishops and while the Passages thereof were fresh in my Memory I perused that Copy of this Proceeding and Tryal which Mr. Ince their Lordships Attorney had caused to be taken for their Use And I have also lately read over the same again as intended to be printed by Mr. Basset and Mr. Fox And I do think it to be a very Exact and True Copy of the said Proceeding and Tryal according to the best of my Judgment having been very careful in perusing thereof Ioh. Powel These Peers were present on the 15th Day of Iune 1688. when the Lords the Archbishop and Bishops were brought into Court from the Tower upon the Habeas Corpus VIZ. Lord Marquis of Hallifax Lord Marquis of Worcester Earl of Shrewsbury Earl of Kent Earl of Bedford Earl of Dorset Earl of Bullingbrook Earl of Manchester Earl of Burlington Earl of Carlisle Earl of Danby Earl of Radnor Earl of Nottingham Lord Viscount Fauconberge Lord Grey of Ruthyn Lord Paget Lord Chandoys Lord Vaughan Carbery These Peers were present on the Day of the Tryal being the 29th of Iune 1688. and the Feast of St. Peter and St. Paul. VIZ. Lord Marquis of Hallifax Lord Marquis of Worcester Earl of Shrewsbury Earl of Kent Earl of Bedford Earl of Pembrook Earl of Dorset Earl of Bullingbrook Earl of Manchester Earl of Rivers Earl of Stamford Earl of Carnarvon Earl of Chesterfield Earl of Scarsdale Earl of Clarendon Earl of Danby Earl of Sussex Earl of Radnor Earl of Nottingham Earl of Abington Lord Viscount Fauconberge Lord Newport Lord Grey of Ruthyn Lord Paget Lord Chandoys Lord Vaughan Carbery Lord Lumley Lord Carteret Lord Ossulston 'T is possible more of the Peers might be present both Days whose Names by reason of the Croud could not be taken De Termino Sanctae Trinitatis Anno Regni Jacobi Secundi Regis Quarto In Banco Regis Die Veneris Decimo Quinto Die Junii 1688. Dominus Rex versus Archiep. Cantuar. al. Sir Robert Wright Lord Chief Justice Mr. Justice Holloway Mr. Justice Powell Mr. Justice Allybone Judges THIS being the first day of the Term His Majesties Attorney General as soon as the Court of Kings Bench was sat moved on the behalf of the King for a Habeas Corpus returnable immediate directed to the Lieutenant of the Tower to bring up his Grace the Lord Arch-Bishop of Canterbury and the Bishops of St. Asaph Ely Chichester Bath and Wells Peterborough and Bristol which was granted And with great dispatch about eleven a Clock the very same day the Lieutenant returned his Writ and brought the said Lord Arch-Bishop and Bishops into Court where being set down in Chairs set for that purpose Mr. Attorney-General moved the Court. Viz. Mr. Att. Gen. My Lord I pray that the Writ and Retorn may be read by which my Lords the Bishops are brought hither Lo. Ch. Iust. Read the Retorn Clerk reads the Retorn which in English is as follows viz. I Sir Edward Hales Baronet Lieutenant of the Tower of London named in the Writ to this Schedule annext To Our Mâ—… Serene Lord the King do most humbly certifie That before the coming of the said Writ to wit the Eighth day of June in the Fourth Year of the Reign of our Lord James the Second King of England c. William Lord Arch-bishop of Canterbury William Lord Bishop of St. Asaph Francis Lord Bishop of Ely John Lord Bishop of Chichester Thomas Lord Bishop of Bath and Wells Thomas Lord Bishop of Peterborough and Jonathan Lord Bishop of Bristol mentioned in the aforesaid Writ were committed and delivered to and are retained in my Custody by Vertue of a certain Warrant under the Hands and Seals of George Lord Jeffries Baron of Wem Lord High Chancellor of England Robert Earl of Sunderland Lord President of the Privy Council of our Lord the King Henry Lord Arundel of Warder Keeper of the Pivy Seal of our said Lord the King William Marquess of Powis John Earl of Mulgrave Lord Great Chamberlain of England Theophilus Earl of Huntingtou Henry Earl of Peterborough William Earl of Craven Alexander Earl of Moray Charles Earl of Middleton John Earl of Melfort Roger Earl of Castlemain Richard Viscount Preston George Lord Dartmouth Sidney Lord Godolphin Henry Lord Dover Sir John Earnly Knight Chancellor of the
Exchequer of our said Lord the King Sir Edward Herbert Knight Chief Iustice of the Common Bench of our Lord the King and Sir Nicholas Butler Knight Lords of his Majesties Most Honourable Privy Council to me directed the Tenor of which Warrant follows in these Words viz. THESE are in his Majesties Name and by his Command to require you to take into your Custody the Persons of William Lord Arch-bishop of Canterbury William Lord Bishop of St. Asaph Francis Lord Bishop of Ely Iohn Lord Bishop of Chichester Thomas Lord Bishop of Bath and Wells Thomas Lord Bishop of Peterborough and Ionathan Lord Bishop of Bristol For Contriving Making and Publishing a Seditious Libel in Writing against his Majesty and his Government and them safely to keep in your Custody until they shall be delivered by due Course of Law For which this shall be your sufficient Warrant At the Council Chamber in White-Hall this Eighth day of Iune 1688. And this is the Cause of the taking and detaining c. Lord Ch. Iust. Well What do you desire Mr. Attorney Mr. Att. Gen. We pray for the King that the Return may be filed L. Ch. Iust. Let it be filed Mr. Att. Gen. By this Retorn your Lordship observes what it is my Lords the Bishops were committed to the Tower for it is by Warrant from the Council Board where when their Lordships appeared they were not pleased to give their Recognizances to appear here as they were required by the King to do and there upon they were committed to the Tower and now come before the Court upon this Retorn of the King 's Writ of Habeas Corpus and by the Retorn it does appear it was for Contriving Writing Framing and Publishing a Seditious Libell against His Majesty and the Government My Lord it is our Duty who are the King's Councel pursuant to our Orders to prosecute such kind of Offences and when the proper time shall come for us to open the nature of the Offence your Lordships will then judge what reason there is for this Prosecution but in the mean time what we are now to offer to your Lordship is The Officer of this Court has an Information against his Grace the Archbishop of Canterbury and the rest of my Lords the Bishops which we desire may be read to them and pray that they may plead to it according to the Course of the Court. Sir Rob. Sawyer If it please your Lordship to spare us a word for my Lords the Bishops Mr. Att. Gen. My Lord We pray for the King the Information may be read Sir Rob. Sawyer We define to be heard a word first Mr. Soll. Gen. We oppose your speaking any thing till the Information hath been read Sir Rob. Sawyer But what we have to offer is proper before it be read Mr. Att. Gen. Your time is not yet come Sir Robert. Sir Rob. Sawyer Yes this is our proper time for what we have to say and therefore we move it now before there be any other proceedings in this matter Mr. Soll. Gen. It is irregular to move any thing yet pray let the Information be read first Mr. S. Pemberton If your Lordship please to spare us we will offer nothing but what is fit for us to do Sir Rob. Sawyer And now is our proper time for it Mr. Soll. Gen. Gentlemen You do know the way of Proceeding in such Cases better than so I am sure as for you Sir Robert Sawyer you have often oppos'd any such Motion as irregular and I hope the Case is not alter'd however you may be the course of the Court is the same Sir Rob. Sawyer With submission if your Lordship please to spare me a word that which I would move is to discharge my Lords the Bishops upon this Return and from their Commitment upon this Warrant Mr. Att. Gen. Surely these Gentlemen think to have a Liberty above all other People here is an Information which we pray my Lords the Bishops may hear read and plead to Mr. Soll. Gen. Certainly Sir Rob. Sawyer you would not have done thus half a year ago Sir Rob. Sawyer What would not I have done I move regularly with Submission to discharge my Lords the Bishops from their Commitment If they are not here legally Imprisoned now they are before your Lordships upon this Writ then you will give us leave to move for their Discharge before any thing else be said to them and that is it we have to say to demand the Judgment of the Court upon this Return whether we are legally Imprisoned Mr. Att. Gen. Under Favour my Lord neither the Court nor they are ripe for any Motion of this Nature yet Mr. S. Pemberton If we do not move it now it will afterwards I fear be too late Mr. Soll. Gen. These Gentlemen are very forward but certainly they mistake their time this is a Habeas Corpus that 's brought by the King and not by the Prisoners and therefore they are too soon till they see what the King has to say to them Mr. Att. Gen. Your Lordship cannot as yet be moved for your Judgment about the Legality of this Commitment because this Writ was granted upon our Motion who are of Councel for the King and upon this Writ they are brought here and what is it we desire for the King Certainly nothing but what is Regular we have here an Information for the King against my Lords and we desire they may plead to it Mr. S. Pemberton Good my Lord will you please to hear us a little to this Matter L. C. Iust. Brother Pemberton we will not refuse to hear you by no means when you speak in your proper time but it is not so now for the King is pleased by his Attorney and Sollicitor to Charge these Noble Persons my Lords the Bishops with an Information and the Kings Councel call to have that Information read but you will not permit it to be read Mr. S. Pemberton Pray my Lord spare us a word if we are not here as Prisoners regularly before your Lordship and are not brought in by the due Proâ—… of the Court then certainly the Kings Councel or the Court have no Power to charge us with an Information therefore we beg that you will hear us to that in the first place whether we are Legally here before you Mr. Soll. Gen. These Gentlemen will have their proper time for such a Motion hereafter Mr. Pollexfen No Mr. Soll. this is without all Question our only time for it we shall have no time afterwards Mr. Att. Gen. Yes you will for what do we who are of Councel for the King now ask of the Court but that this Information may be read when that is done if we move to have my Lords the Bishops plead then they may move what they will but before we make that Motion they cannot break in upon us with their Motion and with Submission to your Lordship whether my Lords the Bishops were duely Committed
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
unless my Lords are here in Court I mean Legally in Court for no man is in Court so as to be liable to be charged with an Indictment or Information that is not brought into Court by Legal process or as a prisoner upon a Legal Commitment then my Lord with humble submission we say that it doth appear by this Return that my Lords the Bishops are not here Legally in Court because this Commitment of theirs was not a Legal Commitment and two Objections we have to it The one is that the Persons Committing had no Authority to commit for the Return says that it was by Vertue of a Warrant under the Hands of such and such being Lords of the Council and they we say have no Authority to do this The other Objection is that the Fact for which they were committed they ought not to have been Imprisoned for the Fact charged upon them is in the nature of it a bare Misdemeanour and for such a Fact it is the Right of my Lords the Bishops as Peers of the Realm that they ought to be served with the usual Process of Subpoena and not to be committed to prison These are the two Objections that we have to this Return and this is under favour the proper time for us to make this Objection before the Kings Councel can charge my Lords the Bishops with an Information L. Ch. Iust. What say you to it Mr. Attorney Mr. Att. Gen. With submission my Lord these Gentlemen have out of course and preposterously let themselves in to this Discourse and when all is done we must Recurr to that which we moved to your Lordship before to desire that your Lordship would order the Information to be read and when we call my Lords to plead to the Information then will be their proper time to make this Objection for 't is a strange thing certainly for men to make Objections before they know what it is that they are charged with They say the ground of their Motion is because my Lords the Bishops are here in Court upon the Return of an Habeas Corpus and therefore they come in upon a Commitment as they say for that which they ought not to be committed for at all and we cannot charge them unless they be properly in Court. Now for that it is true if that Commitment of theirs were the only thing that was here before the Court then the Court would if that Commitment were Illegal discharge them of that but when a man is present here in Court brought into Court let him come how he will he is not to have any longer time then that Instant to appear to and be charged with the Information 'T is true upon a Subpoena which is in the Nature of a Summons there a man hath as it were an Essoyn and may make his Excuse and he shall have time but when he is present in Court either as a Person priviledged as an Officer or as a Prisoner he shall be charged presently and these Gentlemen are not to let themselves into Invectives against the Commitment thereby to keep off their being charged with the Information Besides that it is strange these Gentlemen should know the Priviledge of my Lords the Bishops as Peers better then all the Lords of the Council who are most of them themselves Peers and they that make the Objection should have considered whether these Lords that made the Commitment did not think themselves concerned in all the Priviledges of Peerage as well as these seven Noble Lords Sir Rob. Sawyer Is that an Answer to our Objection Mr. Attorney Mr. Att. Gen. I say it is a strange Objection and I answer 't is out of due time for this we say that my Lords the Bishops being now here in Court as Prisoners upon a Commitment and we desiring to charge them with an Information you are not to examine the matter of their Commitment and therefore I do insist upon it that the Information should be read and then you will consider whether they are not bound to plead to it Mr. Finch My Lord I hope Mr. Attorney General will not think Legal Objections to be Invectives Mr. Att. Gen. Truly I know not what you call Legal Objections I do not think yours are so nor do I think Legal Objections are Invectives but I used that Expression as very proper for what you urged against the Commitment L. C. I. Nay Gentlemen don't quarrel about words Mr. Finch My Lord we would not willingly have Words given us to quarrel at Mr. Soll. Gen. My Lord the Question is whether we are in the right Method of Practice as to the Course of the Court or they It may be these Gentlemen think to make us angry and take Advantage of our being in a Passion Mr. Finch Mr. Sollicitor we desire to have our Objections answered Mr. Soll. Gen. Nay if you begin to be angry Gentlemen we can be angry too L. C. I. I would have neither of you be Angry Mr. Soll. Gen. It seems they would have an Answer to their Objections but will not suffer us to give it they would first examine whether my Lords the Bishops have been duly Committed that we say is not to be done by the Court as yet your Lordship sees they are actually in Custody by a Commitment of the Lords of the Council that appears by the Return before your Lordship and for what they were Committed what do we now pray for the King First we move for a Habeas Corpus then that this Information may be read and all is in Order to bring this Fact for which they were Committed to a Trial 't is said upon the Return they were sent to the Tower for Contriving Writing and Publishing a Seditious Libel against the Kings Person and Government which I think is Crime enough for a man to deserve to be Committed for they would have you to discharge these Lords from this Commitment the Return as they say being not Legal before the Information be read But we think their Motion is Irregular for here is a Crime charged in the Commitment and upon that Commitment they are here now as Criminals before your Lordship and Mr. Attorney has exhibited an Information for the King which is in the Nature of a Declaration at the Kings Suit and that in this Court which is the Supreme Court now in being for the Trial of Matters of this Nature We will come to that Question whether they were legally Committed when there is a proper time for it but now we find my Lords the Bishops in Court upon a Commitment for a great Crime I repeat it again It is for Contriving Writing and Publishing a Seditious Libel against the Kings Person and against the Kings Government and whether the Kings Counsel shall not have leave to make out this Charge by an Information sure can be no Question at all in this Court I hear them mention the Statute of Edward the Third But that is
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
have it not ready 't is not telling the Court of it without shewing of it that will do and it may be a man that is taken up and brought hither in Custody cannot have it ready to shew but yet then by this Rule a man shall lose the benefit of his Plea by being compelled to answer immediately But they say the Court will do right I suppose they will and my Lords the Bishops in this case I believe do not distrust but that the Court will do right but I never thought the Law was brought to that pass that such things as these were left wholly in the discretion of the Court certainly Imparlances time to plead and just Preparations for a man's defence are things that the Law has setled and not left in the discretion of the Court and truly to me it seems all one utterly to take away a man's Defence as to hinder him of the means to prepare for it My Lord here is an Information before you against these Noble Lords it is a matter of great moment and tho' I hope in God there is no great cause for it yet however since such Persons are concerned and 't is a matter of such great weight I hope you will give us such an Imparlance as if we had this day appeared upon the ordinary Process which is an Imparlance until the next Term. L. Ch. Iust. There is a difference between this and that other Case if my Lords the Bishops had appeared upon the Summons they would have had an Imparlance of Course but when they are brought up hither in Custody that mightily alters the Case but that we may not be too hasty in a thing of this nature let the Clerk of the Court be consulted with that we may know what the true Course is Mr. Att. Gen. My Lord we pray Sir Samuel Astry may be examined a little about it Mr. Iust. Allybone Mr. Pollixfen I believe the Court is unanimous in their Resolutions of making nothing new in this Case but pray give me leave to tell you this is not the first time that this Question has come to be agitated in this Court since I came hither Now from whence can the Court take their measures to be rightly informed what the Practice of the Court is but from the Information of the Officers of the Court who by their constant Imployment are most capable of knowing what the Course is Now if you come to offer any thing that may be matter of doubt to the Court concerning the Practice of the Court you having known that this thing was controverted before for so it has been should have provided your self with something that must be a reasonable motive for us to doubt for this has not been only once but often moved and our Officers have been consulted with concerning this Question which took its rise from such Objections as you have made now Now for you to tell us That you desire that we would look into Precedents is methinks pretty odd if you had brought us any Precedents it had been something And withall I must tell you that you must not reckon the favour of the Court in any particular Case to be the standing Rules for the Practice and Course of the Court but instead of bringing Precedents you only offer your own Thoughts and those would create no doubt in us but what has been before satisfied upon Examination of the Officers of the Court. Mr. Pollixfen Pray Sir will you give me leave to answer you one word Mr. Iust. Powell Truly I have not observed that ever this Point was started so as to beget a Question since I came hither but only in the Cases of the Quo Warranto's and truly in that Case I thought it hard they should be denied time to plead especially the Consequence being so fatal L. Ch. Iust. Yes yes Brother it has been several times Mr. Iust. Powell Truly my Lord I have not observed it nor do I remember it Sir Rob. Sawyer My Lord I have always taken the distinction as to these Matters to be this Mr. Iust. Powell But my Lord if the ancient Course of the Court hath been to grant an Imparlance and a Copy of the Information before they plead I see no reason why my Lords the Bishops should not have the benefit of that ancient Course for if a man that is sued at Law for a Two-penny Trespass shall have that advantage as to receive a Declaration and have time to plead what he can to it why should not my Lords the Bishops in a matter of so great weight have the same advantage too But indeed if the Course of the Court had been anciently otherwise I can say nothing to it for the Course of the Court is certainly the Law of the Court. Mr. Iust. Allybone Brother Powell you say well if they did produce any one Precedent to give us occasion to doubt in the matter Sir Rob. Sawyer Pray good my Lord will you give me leave Mr. Attorn Gen. Why Sir Robert Sawyer will you never have done Mr. Soll. Gen. No they are all so zealous and eager in this Case that they wont permit either the Court or any body else to speak a word but themselves Mr. Serj. Pemberton Good Mr. Sollicitor give us leave to answer the Objection that the Court hath made to us we would satisfie your Lordship where the Distinction really lieth where there has been an Opportunity for the party to come in as by Summons or Subpaena or the like and he has slipped that opportunity and so the King is delayed in that Case they always used to put the Party upon Pleading presently when he was taken up upon a Capias and brought in Custody but when there was never any Subpoena taken out as the Case is here so that the Party never had an opportunity to come in and render himself and appear to Answer it according to the due Course of Law an Imparlance was never yet denyed nor time to Plead and that is the Case here Sir Robert Sawyer My Lord Mr. Serjant has given you the true distinction where Process has gone out to summon any one to appear to an Information and he hath failed to appear according to the Summons and the Prosecutor for the King takes out a Capias if he be brought in upon that Capias the Ancient Course has been so as they say But for that other matter where a Man comes in upon a Commitment at the first Instance and an Information is put in just as this is the same Morning and not before if they can shew any one Precedent of this kind Fifteen years ago I would be contented to yield that they are in the right but I am sure they are not able to do it In Sir Mathew Hales's time when this was moved it was refused and he was clear of another Opinion Mr. Attor Gen. I hope now my Lord we shall be heard a little for the King and I
the Court when they came here to day Certainly they were not for no man is in contempt but he that being served with Process disobeys that Process and if my Lords the Bishops had been served with a Subpoena and had not appeared then there would have gone out a Capias to bring them in and so they would have come in upon a Contempt and then they would have come within the Rule Mr. Soll. Gen. If you have a mind to it you may ask Sir Samuel Astry again Mr. Att. Gen. If they come in upon Bail they ought to plead presently Mr. I. Allybone Mr. Finch I 'le tell you what sticks with me truly you could not but be aware that this would be required of you for this very thing was in debate last Term and you know what Rules the Officer said was the Course of the Court why did you not therefore come prepared with some Presidents to shew us what the course of the Court is Mr. Att. Gen. Truly my Lord at this rate we shall keep your Lordship here all this Afternoon if these Gentlemen will not be satisfyed with the Rule of the Court and for an Answer to what Mr. Justice Powel says if any Ryotbâ—… committed in the Countrey and the Parties are bound by Recognizance to appear here that is no process of this Court and so consequently there can be no contempt and yet they must Plead presently Mr. I. Powell There is a particular reason for that because they are bound by Recognizance Sir Samuel Astry and others say that if they come in by Recognizance they must plead presently Mr. Soll. Gen. But for the thing it self that the people that hear us may not imagine that this Court puts a hardship upon my Lords the Bishops more than is done in other Cases it is best to keep the same Rule as is in all other Cases for when all is done when Justice goes with an Equal Current without any regard to one person or other then every body is safe and all persons concerned do their duty so in this case here be no Presidents produced wherein it has been otherwise then can no person complain but that things go in this Case as they do in all other Cases perhaps such a Case as to the Fact of it never hapned before but for the Law of it that is plain and the same as in all other Cases for that there may be an Information against my Lords the Bishops as well as other people If they make Libels sure it is no doubt at all and if an Information lies against them for it they are under the same Rules as others are but these Gentlemen talk of being surprized and that this is the first time they have heard of this Information but have we told any news in this Information Was not all that is contained in it notoriously enough known before Was not the Kings first Declaration very well known Was not his second Declaration very well known Was not his Order of Councel for the Reading of the Declaration very well known Is not your own Petition a thing very well known to yourselves and all the world Then these being the particular Facts of which this Information is made up and we only say you did do this Fact and we ask you did you do it or did you not Can there be any great surprize in this My Lord I cannot see any thing that alters this from the common Case but only their being Peers and since this question has been heretofore under contest these Gentlemen have had time enough to have prepared Precedents to differ this from the common Rule if they could but since they cannot we desire they may have the same Rule that is in all other Cases and then to be sure all will go right L. C. I. Sir Samuel Astry pray will you tell us whether ever the Court used to grant an Imparlance where a person comes in in Custody or did you ever know when a person comes in upon a Commitment time was given him to Plead Mr. Ser. Pemberton Have you ever known it disputed and denyed Sir S. Astry My Lord I have known that 't is in the discretion of the Court to grant what time they please L. C. I. Is it the course of the Court to give an Imparlance Sir S. Astry No 't is the favour of the Court and if the Defendants have at any time shewed a reasonable Cause that they have special Matter to plead or any other cause allowed by the Court the Court has sometimes Indulged them so far as to give them time L. C. I. But how is the ordinary course Sir Samuel Astry Mr. I. Allybone Ay for as I said before things done in particular Cases in favour are not Precedents Sir S. Astry I have told your Lordship the Course is this that any person that appears upon a Recognizance or is taken up by your Lordships Warrant or by a Warrant from a Justice of Peace or any other way in Custody or any Officer of the Court that is a Priviledged person and that must appear in propria personâ must plead presently if the Court upon particular Reasons do not give him time and this I received Information of as the practice of the Court from Mr. Waterhouse who had been a Clerk in the Office sixty years Mr. Soll. Gen. He said so before but these Gentlemen will never be contented unless they have a new Law made for them Mr. Pollixfen My Lord I would not unnecessarily trouble your Lordship but truly this is a case of great Concern And first of all I think we shall all agree that what has been used for ten or twelve years past will not make the Course of the Court and next I perceive they do not bring any one Instance for any proceeding of this sort above ten or twelve years old but then say they on the other side Why do not you bring Presidents that it has gone otherwise hretofore My Lord that cannot be done for it is a Negative on our side that this which they desire is not the Course of the Court but then as it is impossible to prove a Negative so the Proofs should come on the other side that this has been done they ought to shew it if there has been any such thing as a standing Rule or else it shall be presumed an Innovation as being contrary to all Reason But My Lord because they put it upon us there is this Proof on our side as much as a Negative can afford In those proceedings that were in the great Case of the Habeas Corpus there was an Information against Elliot and others they had time given them to Plead over and over so that there is one Precedent And as many as these Cases in former times as can be found will show that this was always the Course but pray say they produce us one Instance that ever there was a man that came in upon a
Recognizance that had time to Plead truly My Lord I cannot just now tell whether any such Instance can be produced but I verily believe there may be a great many but I turn it upon them and that with great Reason with Submission to your Lordship Shew me any man if you can above a dozen years ago that had not time allowed him to Plead Ay but say they Mr. Waterhouse an Ancient Clerk of the Crown Office that has been there these sixty years hath certified that this hath been the practice of all his time My Lord we that have been Conversant in the business of this Court did all very well know Mr. Waterhouse when he was here and sat in Court in the place of Sir Samuel Astry Sir S. Astry No Sir It was in Mr. Harcourt's place Mr. Pollixfen Well he executed a place here and 't is no matter whether he were Master of the Office or no but I think we all knew him very well he was a man as lame in his business as could be for there are some men that will never do business well let them be never so long at it and he was as weak in the practice of the Court and every thing else as 't is possible for one that has been bred in an Office can be and at this time he is grown so decreppit and superannuated that you may as well depend upon the Certificate of an old Woman as any thing that he shall say in such a Matter as this he is now almost fourscore years of Age and has lost that little Memory and Understanding he had but if his Certificate must be depended upon because of his standing in the Office pray My Lord let him come hither and do you ask him what he has to say in this Matter Mr. Soll. Gen. Aye that is very well indeed Mr. Pollixfen Good Mr. Sollicitor spare us certainly there needs not such great hast in this Matter we are upon a business of very great Weight and Concernment for you are now making a Law for the whole Kingdom in point of Practice in Cases of this Nature We do say indeed that by the Reason of the Heat and Zeal of these last ten years such a Usage has been introduced but Sir Samuel Astry tells you it was opposed and I hope that neither I nor thâ—… thing will be the worse thought of because I opposed what I thought an unreasonable and new Invention My Lord I know in the Case of the City of London we had time to plead a whole Vacation after an Imparlance and were not at all hurried on as the King's Counsel would do in this Case My Lord if they can produce any Ancient President for it I will say no more but there is no Case in Print in any of our Books that ever I read or can remember that countenances such an Opinion a man by this means may loose his just Defence and he has no Remedy nor will it over be in his Power to retrieve it for he may be brought on a suddain into Court upon a Warrant and when he is here he shall be charged with an Information and presently he must Plead not Guilty because he has not time to prepare a Plea of any other Nature let him have never so much other special Matter or occasion for it if you please to let this Matter be examined what the Presidents are and what Age those Precedents are then perhaps your Lordship will get some satisfaction but otherwise if the bare Certificate of the Master of the Office is to be a Guide to the Court what is Law and what is not we shall be in a very uncertain Condition especially when the Matter comes in the very face of it a great deal of Unreasonableness and Injustice They on the other side will argue that is not more unreasonable then the practice in the Case of Treason and Fellony where Persons are compelled to Plead instantly But under favour My Lord there is no Comparison between this Case and that though I know it was always thought a hardship and defect in our Law that a person should be denied time to plead in case of Life and Death except he can shew some special Matter of Law that he has to Plead and then he has always time allowed him to put it into Form And I could never think there was any Reason to be given for it but because the common Defence of Fellons would be little Shifts and Arts which would destroy proceedings and make them tedious and that would be an Encouragement to People to commit Fellony and beside there is a Trust which the Law reposes in the Court in Capital Cases to take care that these Men should not suffer upon any little Tricks in Law but if you come below Treason and Fellony the Law puts no such hardship upon the Defendant nor reposes such aspecial Trust in the Court but a man may plead any thing he has to plead And can any man plead before he sees what he is â—…o plead to and shall the Law allow him Council to prepare his Plea and not allow him time to consult with that Council about it These are thingâ—… My Lord that truly to me seems unreasonable But as to the Practice and course of the Court I pray your Lordship to give Order that the Precedents may be searched that you may know what the ancient Practice was Mr. Finch Whether you will grant an Impâ—…ance now or no yet I hope however you will think â—…it to give My Lords the Bishops time to plead Lord Chief Iustice. But Mr. Finch we have had a Certificate from Sir Samuel Astry which truly weighs a great deal with me he tells you the Practice has been so ever since he came here and â—…t Mr. Waterhouse â—…old him that it had been so all his time which is sixty years Mr. Pollixfen My Lord there are Persons here that will upon their Oaths declare That Mr. Waterhouse has often told them the Practice was otherwise even in his time and afterwards a long time before this new waâ—… of Proceeding came in Mr. Ince My Lord if I might have liberty to speak I can say Mr. Waterhouse has told me Lord Chief Iustice. Pray be quiet Mr. Ince Mr. Iustice Allybone But pray Mr. Pollixfen give me leave to mind you how the Evidence stands against you the Objections are that this has been a Practice but for twelve years last past if that be true I think it goes a great way for the practice of twelve years is President enough Prima Facie that such is the practice For how shall we come to the knowledge of the practice but from our Officer Sir Samuel Astry who has been here Examined and he tells you that upon his coming into the Office when it could not be so doubtful as now it seems it is he took Instructions from Mr. Waterhouse I allow you 't is but his Certificate but that must
go a great way with the Court. Sir Ro. Sawyer Such a practice as this has been always very rare in Informations for Misdemeanours and they bring you nothing of any President older then Sir Samuel Astry's time Mr. Finch Pray My Lord give me leave to very the Question I do not now make it a Question whether your Lordships should grant My Lords the Bishops an Imparlance but whether you would think fit to look into the Course of the Court before that time that Sir Samuel Astry speakâ—… of and take time to consider and search into Presidents Mr. I. Allybone Do you Mr. Finch give us any one Reason or President that may make us doubt whether this be the Course of the Court or no à And you could not but be aware of this before and therefore should have come prepared to make out your Objection Mr. Finch Mr. Pollixfen and the rest of the Practicers in My Lord Hales's time will tell you that the Course was otherwise in his time Sir Samuel Astry indeed tells you it has been so since his time but this was one of the Points it seems that he was ignorant of which made him inquire of Mr. Waterhouse so doubtful was this Practice Sir Samuel Astry I was an Attender upon this Court before I came into this Office but it was in another place on the other side of the Court and therefore was not concerned so much to know what was the Course on this side till I came into this Office. Mr. Sol. Gen. These Gentlemen differ among themselves one would have an Imparlance the other only time to plead I believe truly they cannot tell well what they would have I pray the Rules of the Court may be kept to Sir Sam. Astry Here are two Clerks that sit by me that have been a long time in the Office Mr. Harcourt my Secondary and the Clerk of the Rules I pray they may be asked their knowledge of this matter Mr. Soll. Gen. Certainly these Gentlemen think they have a Priviledge above all other people that they must not be subject to the same Rules as others are we on our 〈◊〉 have taken all the Methods that we could to make this matter manifest and what is it that these Gentlemen now propose They pray you to take time to consider but have they used the right means of creating a jealousie or suspicion in the Court that the Course is otherwise they can give no instance of it and all they say is 't is a Negative that this is not the Course of the Court but the Imparlance that they beg is in the Affirmative surely that they can find proof of if it be so As for my Lord Holly's Case that is with us and not against us let Mr. Pollixfen shew that ever any one of the Men that were brought into Court in Custody either had time to Plead or an Imparlance L. C. I. Sir Samuel Astry says he has given you his Opinion and here are two other Clerks of the Office that he refers himself to are you willing that they should be asked Mr. Ser. Pemberton Yes my Lord with all our hearts L. C. I. Mr. Harcourt How long have you been a Clerk in the Crown-Office Mr. Harcourt About seventeen or eighteen years my Lord. L. C. I. How long have you known the practice of the Court in this matter and what is it Mr. Harcourt I cannot charge my self so with Particulars from the time of my coming into the Office but for these ten or twelve years past I remember it has been as the King's Council pressed and as Sir Samuel Astry has declared L. C. I. What say you Mr. Sillyard How long have you known the Crown-Office Mr. Sillyard I have been a Clerk here about thirty years L. C. I. Well and how has the practice been all your time Mr. Sillyard I have not sat here as Clerk of the Rules but a little while but since I have sat here I have always observed it to be the Practice that one that comes in Custody should Plead immediately it was a thing heretofore that did not so often happen asit hath done here of late therefore I cannot so well speak to it but it hath fallen out frequently within some years last past and that hath been the constant Course Sir. Samuel Astry When you first came to be Attorney General Sir Robert Sawyer I am sure it was so Mr. Att. Gen. Pray let me ask you Mr. Sillyard you say you have known the Office thirty years When you first came to the Office were Informatitions as frequent as they are now and have been of late Mr. Sol. Gen. It was so in the Case of Mr. Hampden when you were Attorney General Sir Robert Sawyer he was forced to Plead immediately to an Indictment for a Crime that perhaps you will say was near upon Treason Sir Rob. Sawyer Yes truly it wanted but one Witness that was all Mr. Sol. Gen. But yet the Indictment was only for a Misdemeanour and there we strugled and debated the Matter but were forced to give it over because the course of the Court was against us so it has been by the unquestionable Testimony of Sir Samuel Astry for these twelve years last past and in those twelve years we have had many changes perhaps there may have been twelve Chief Justices and they have all affirmed it and if I then make it out that in all these Judges times that are within our Remembrance it has gone thus then there are enough of Precedents in the Matter Sir Rob. Sawyer But my Lord I desire to know whether that were the Ancient Course Mr. Sollicitor Mr. Sol. Gen. They that make the Objection ought to prove it but I will name Sir Robert Sawyer another Case and that is the Case of Sir Samuel Barnardiston which was the Case of a Libel too he was forced to plead immediately and it cost him 10000 l. Fine L. C. I. Well Gentlemen have you done on either side Mr. S. Pemberton If your Lordship will please to give us time till to morrow Morning we will come hither by Rule of Court and bring you some Certificates and Assidavits or else some Precedents that we hope will satisfie your Lordship in this Matter L. C. I. No Brother we cannot do that the Question is what the Course of the Court is we have had an Account of that from Sir Samuel Astry for twelve years of his own Knowledge and from Mr. Waterhouse by him for sixty years but for Mr. Waterhouse they except against him and say he was a person that was always Lazy and did not foâ—…well understand his business and now is superannuated that is said but is but â—…is dictum perhaps it may be so perhaps not and they have offered to Examine Mr. Ince about some Opinion that he has had from this Mr. Waterhouse it may be he may have asked him some Question that may lead to it and he may have given
of May the King's Order of Council for the Reading the Declaration Mr. Gantlâ—… There it is Sir. The Book delivered into Court. Mr. Sol. Gen. Read it I Pray Clerk Reads At the Court at Whitehall the fourth of May 1688. and so reads the Order of Council Mr. Sol. Gen. My Lord we have one thing that is mentioned in the Information that this Declaration was Printed if that be denied we will call Henry Hills his Majesties Printer because we would prove all our Information as it is laid Lord Ch. Iust. You must do so Mr. Sollicitor you must prove the whole Declaration Mr. Sol. Gen. Cryer call Henry Hills He was called but did not presently appear Mr. Sol. Gen. Call Mr. Bridgman though these Declarations prove themselves we have them here Printed but Swear Mr. Bridgeman Mr. Bridgeman Sworn Mr. Sol. Gen. Shew Mr. Bridgeman the two Declarations Lord Ch. Iust. What do you ask him Mr. Sol. Gen. We ask you Sir if the two Declarations were Printed Mr. Bridgeman What Declarations do you mean Mr. Solliitor Mr. Sol. Gen. You know what Declarations I mean well enough but weâ—…l ask you particularly you know the Declaration that was made the 4th of April in the third Year of the King. was it Printed Mr. Bridgeman Yes it was Printed by the King's Order Mr. Sol. Gen. Was that of the 27th of April in the 4th Year of the King Printed Mr. Bridgman Yes they were both Printed by the King's Order Mr. At. Gen. Then the next thing in course is the Bishops Paper Sir Rob. Sawyer Mr. Bridgeman pray let me ask you one Question Did you ever compare the Print with that under Seal Mr. Bridgeman I did not compare them Sir Robert Sawyer Mr. Sol. Gen. He does Swear they were Printed by the King's Order Sir Robert Sawyer Good Mr. Sollicitor give me leave to ask him a Question Can you Swear then that they are the same Mr. Bridgman I was not asked that Question Sir. Mr. Sol. Gen. Come then Mr. Bridgeman I 'le ask you Do you believe they are the same Sir Rob. Sawyer Is that an Answer to my Question Mr. Sol. Gen. We must ask him Questions as well as you Sir Robert what say you Do you believe it to be the same Lord Ch. Iust. You hear Mr. Sollicitors Question answer it Mr. Bridgeman Mr. Bridgeman Yes my Lord I do believe it Lord Ch. Iust. Well that 's enough Mr. At. Gen. If there were occasion we have them here Compared and they are the same Sir Rob. Sawyer With Submission my Lord in all these Cases if they will prove any Fact that is laid in an Information they must prove it by those that know it of their own Knowledge Do you know it to be the same Mr. Sol. Gen. That 's very well Sir. Sir Rob. Sâ—…yer Ay so it is Mr. Sollicitor It is a wonderful thing my Lord that we cannot be permitted to ask a Question Do you know it to be the same Mr. Bridgeman I ask you again Mr. Bridgeman I have not compared them I tell you Sir Robert Sawyer Sir Rob. Sawyer Then that is no Proof Lord Ch. Iust. Would you have a Man Swear above his Belief he tells you he believes it is the same Sir Rob. Sawyer Is that Proof of an Information Lord Ch. Iust. Well you 'l have your time to make your Objections by and by Mr. At. Gen. Then Swear Sir Iohn Nicholas Sir Iohn Nicholas I am Sworn already Mr. At. Gen. I see you have a Paper in your Hand Sir Iohn Nicholas pray who had you that Paper from Sir Iohn Nicholas I will give you an Account of it as well as I can Mr. Pollixfen Before they go to another thing my Lord we think they have failed in their Proof of their Information about the Printing this Declaration Mr. At. Gen. Where is Mr. Hills Mr. Iust. Allyb. They have laid That it was printed by the King's Order and it is such a matter Mr. Sollicitor as you may clear if you will sure Mr. Sol. Gen. There is Mr. Hills now I see him L. C. Iust. I was going to give Order that you should send to the Printing-house for him Mr. Iust. Allyb. They may put this matter out of doubt too if they will on the other side for I see they have a Copy in Print and there 's the Original they may compare them if they please Mr. Sol. Gen. I am very glad to hear such a strong Objection Sir Rob. Sawyer We would clear the way for you Mr. Sollicitor Mr. Sol. Gen. No you put Straws in our way we shall be able enough to clear it without your help Swear Mr. Hills and young Mr. Graham here Hills and Graham sworn Mr. Sol. Gen. Mr. Graham did you compare any of these Printed Declarations with the Original Graham Yes I did compare some of them and did make Amendments as I went along Mr. Sol. Gen. 〈◊〉 one that you have compar'd with the Original Mr. Att. Gen. Hills is here himself we 'll ask him Are you sworn Sir Cryer He is sworn Mr. Att. Gen. Pray were the King's Declarations for Liberty of Conscience printed both of them Hills Ay an 't please you Sir. Mr. Att. Gen. You printed them I think Hills Yes I did print them Sir Rob. Sawyer Mr. Hills you say they were printed Upon your Oath after they were printed did you examin them with the Original under Seal Hills They were examined before they were printed Sir Rob. Sawyer Did You examin them Hills I did not here 's one that did Mr. Sol. Gen. Who is that Hills It is Mr. Williams here Mr. Sol. Gen. Swear him Williams sworn Mr. Sol. Gen. Do you hear Williams Do you know that the King's Declaration for Liberty of Conscience two of them one of the 4th of April and the other of the 27th of April were printed Williams Yes my Lord. Mr. Sol. Gen. Did you examin them after they were printed by the Copy they were printed by Williams Yes I did Mr. Sol. Gen. Where had you the Copy who had you it from Williams I had it from Mr. Hills Sir Rob. Sawyer Mr. Williams did you examin them with the Original under the Great Seal Williams The First Declaration I did Sir Rob. Sawyer The Second Declaration is the main Williams The Second was Compos'd by the First Sir Rob. Sawyer Why is there no more in the Second Declaration than there was in the First Williams Yes there is Sir. Sir Rob. Sawyer Did you examin That with the Original under the Great Seal Williams No I did not Mr. Sol. Gen. Can any one tell who did examin it under the Great Seal Mr. Finch Pray what did you examin it by Mr. Williams Williams By a Copy that I receiv'd from Mr. Hills Mr. Att. Gen. Then we will go on and we desire Sir Iohn Nicholas to give an account where he had that Paper that he has in his hand Mr. Finch My Lord it does not appear that
the Copy that was printed is the true Copy of the Declaration Mr. Att. Gen. He says he had it from Mr. Hills Mr. Finch Pray Mr. Hills what did you examin that Copy by which you gave to Mr. Williams Hills I had the Copy from Mr. Bridgeman Mr. Finch Did you examin it with the Original under the Great Seal Hills I did not examin it I had it from Mr. Bridgeman Mr. Finch What was it under Seal Mr. Bridgeman It was the Original signed by the King. Mr. Finch But I ask you was it under Seal Mr. Bridgeman Not under the Great Seal it was not it was the very Declaration the King signed Sir Rob. Sawyer But it ought to be compar'd with the Original or it is no good proof that it is the same Mr. Sol. Gen. Sir Robert Sawyer you understand Collation better sure you should be asham'd of such a weak Objection as this Williams We never bring our Proof to the Great Seal Sir Rob. Sawyer But if you will have it Proof at Law you must have it compared with the Original Mr. Sol. Gen. Do you think there is any great stress to be laid upon that we only say it was printed Sir Rob. Sawyer But you have made it part of your Information and therefore you must prove it L. C. Iust. I think there 's proof enough of that there need no such nicety Mr. Pollixfen Well my Lord we must submit let them go on we won't stand upon this Mr. Att. Gen. Then pray let me go on Where had you that Paper Sir Iohn Nicholas Sir Iohn Nicholas I had this Paper from the King's Hand L. C. Iust. Put it in Mr. Sol. Gen. Who had you it from do you say Sir I. Nich. From the King. Mr. Sol. Gen. About what time had you it from the King Sir Sir I. Nich. I had it twice from the King. Mr. Sol. Gen. When was the first time Sir Sir I. Nich. The first time was in Council the 8th of this month Mr. Sol. Gen. What became of it afterwards Sir I. Nich. The King had it from me the 12th and the 13th I had it from the King again Mr. Sol. Gen. Pray deliver it this way into the Court We will now go on and prove the Bishops hands to it This is the Paper upon which we bring this Information Gentlemen it is all the Hand-writing of my Lord Archbishop and signed by Him and the rest of the Bishops Mr. Att. Gen. I suppose my Lords the Bishops will not put us to prove it they will own their Hands L. C. Iust. Yes Mr. Attorney their Council will put you to prove it I perceive your best way is to ask nothing of them Mr. Att. Gen. My Lord we will desire nothing of them we will go on to our Proofs Call Sir Thomas Exton Sir Richard Raynes Mr. Brooks Mr. Recorder and Mr. William Middleton Sir Thomas Exton appeared and was sworn L. C. Iust. What do you ask Sir Thomas Exton Mr. Att. Gen. Pray convey that Paper to Sir Thomas Exton Mr. Sol. Gen. Shew that Paper to Sir Thomas Exton Sir Thomas I would ask you one question Do you know the Hand-writing of my Lord Archbishop of Canterbury Sir Thomas Exton I 'll give your Lordship what account I can Mr. Sol. Gen. Pray Sir answer my question Do you know his Hand-writing Sir Tho. Exton I never saw him write five times in my life Mr. Sol. Gen. But I ask you upon your Oath do you believe that to be his Hand-writing Sir Tho. Exton I do believe this may be of his Hand-writing Mr. Sol. Gen. Do you believe all the Body of it to be of his Hand-writing or only part of it Sir Tho. Exton I must believe it to be so for I have seen some of his Hand-writing and this is very like it Mr. Sol. Gen. What say you to the Name do you believe it to be his Hand-writing Sir Tho. Exton Yes I do Mr. Sol. Gen. Do you know any of the rest of the Names that are upon that Paper Sir Tho. Exton No I do not L. C. Iust. Do you for the Defendants ask Sir Tho. Exton any Question Sir Rob. Sawyer No my Lord. Mr. Att. Gen. Then call Sir Richard Raynes Sir Tho. Exton My Lord Sir Richard Raynes has been sick this month and has not been at the Commons Mr. Sol. Gen. We have no need of him Call Mr. Brooks Mr. Brooks sworn Mr. Att. Gen. Pray shew Mr. Brooks that Paper Mr. Sol. Gen. Mr. Brooks I ask you this Question Do you know my Lord Archbishop's Hand-writing Mr. Brooks Yes my Lord. Mr. Att. Gen. Pray look upon that Paper do you take that to be my Lord Archbishop's Hand Mr. Brooks Yes my Lord I do believe it to be my Lord Archbishop's Hand Mr. Att. Gen. What say you to the whole Body of the Paper Mr. Brooks I do believe it to be his Hand Mr. Att. Gen. What do you say to his Name there Mr. Brooks I do believe this Name is his Hand-writing Mr. Sol. Gen. Call Mr. William Middleton Mr. Att. Gen. Pray Mr. Brooks don't go away but look upon the Names of the Bishop of St. Asaph and my Lord of Ely. Mr. Sol. Gen. Do you know my Lord Bishop of St. Asaph's Hand-writing Mr. Brooks I have seen my Lord Archbishop of Canterbury and the Bishop of St. Asaph's Hand-writing and I do believe this is his hand Mr. Sol. Gen. Look you upon the Name of my Lord of Ely do you know his Hand-writing Mr. Brooks My Lord I am not so well acquainted with my Lord of Ely's Writing Mr. Sol. Gen. But have you seen his Writing Mr. Brooks Yes I have Mr. Sol. Gen. Is that his Writing do you think Mr. Brooks It is like it Mr. Sol. Gen. Do you believe it to be his Hand Mr. Brooks Truly I do believe it Sir Geo. Treby Did you ever see him write Mr. Brooks No Sir. Mr. Sol. Gen. But he has seen his Writing Sir Geo. Treby How do you know that it was his Hand-writing that you saw Mr. Brooks Because he own'd it L. C. Iust. How do you know it do you say Mr. Brooks I know it I say because I have seen a Letter that he writ to another person which he afterwards own'd L. C. Iust. What did he own Mr. Brooks Mr. Brooks That he wrote a Letter to another person which I saw Sir Geo. Treby To whom Sir Sir Rob. Sawyer Have you the Letter here Sir Mr. Brooks No Sir the Letter was writ to my Lord Bishop of Oxford Sir Geo. Treby Can you tell what was in that Letter Mr. Att. Gen. What is that to this Question You ask him how he knows his Hand-writing and says he I did not see him write but I have seen a Letter of his to the Lord Bishop of Oxford L. C. Iust. And he does say my Lord of Ely own'd it to be his Hand that is there Mr. Sol. Gen. No my Lord that 's a
believe it or do you not Mr. Middleton It is like it that 's all I can say Mr. Sol. Gen. Cannot you tell whether you believe it or not believe it Mr. Middleton I do believe it is his hand Mr. Sol. Gen. Did you ever see him write for I would clear this matter beyond exception Mr. Middleton I have seen his Lordship write but I never stood by him so near as to see him make his Letters Mr. Sol. Gen. Is that his Hand-writing Mr. Middleton It is like it I believe it is his Mr. Sol. Gen. You did not guide his Hand I believe Do you know my Lord of Chichester's Hand-writing Mr. Middleton Sir I am acquainted with none of their Hands but with my Lord of Canterbury's and my Lord of Ely's Mr. Sol. Gen. Do you know my Lord of Peterburgh's Hand-writing Mr. Middleton I had my Lord of Peterburgh's Writing two years ago for some money but I cannot say this is his Mr. Sol. Gen. Do you believe it to be his Mr. Middleton I never took notice of it so much as to say I believe it to be like it I never saw it but once Mr. Sol. Gen. Do you know any other of the Names there What say you to the Bishop of Bristol's Name Mr. Middleton I saw once my Lord of Bristol's Hand-writing Mr. Sol. Gen. What say you to that Writing there Mr. Middleton It is like it Mr. Sol. Gen. Do you believe it to be his or no Mr. Middleton Truly that I cannot say for I never saw it but once Lord Ch. Iust. You never saw him Write did you Mr. Middleton No my Lord I never did Mr. Sol. Gen. Then we will call Sir Thomas Pinfold and Mr. Clavel Sir Thomas Pinfold is there Swear him Sir Thomas Pinfold Sworn Mr. Sol. Gen. Sir Thomas Pinfold do you know my Lord Bishop of Peterburgh's Hand-writing Sir Thomas Pinfold Truly not very well I never saw but one Letter from him in my Life shew me his Hand and I will tell you Which was done Mr. Sol. Gen. Well Sir what say you to it Sir Tho. Pinfold Then upon my Oath I say I cannot well tell upon my own Knowledge that it is his Hand Mr. Sol. Gen. I ask you do you believe it to be his Hand Sir Tho. Pinfold Sir upon the Oath that I have taken I will answer you that upon this account that I have heard there was a Paper delivered by my Lords the Bishops to the King and this Paper that you offer me I suppose to be the same upon that Score I do believe it but upon any other Score I cannot tell what to say Mr. Sol. Gen I ask you upon your Oath Sir do you believe it is his Hand-writing or no Sir Tho. Pinfold Sir I have answered you already that upon my own Knowledge I cannot say it is his Hand-writing but because I have heard of such a Paper I do believe it may be his Lord Ch. Iust. Did you ever see my Lord Bishop write Sir Tho. Pinfold I have been in his Chamber several times when he has been Writing but I had more Manners than to look upon what he Writ Lord Ch. Iust. Did you never see him write his Name Sir Tho. Pinfold I do not know that I ever saw him write his Name but I have seen him Writing I say and so my Lord Bishop may have seen me Writing but I believe he does not know my Hand Mr. Sol. Gen. You have seen him write you say Sir Tho. Pinfold I tell you Mr. Sollicitor I have been in his Chamber when he has been Writing but I had more Manners than to look over him Mr. Iust. Powel Then you did never see any of that Writing Sir Tho. Pinfold I cannot say I did my Lord. Mr. Att. Gen. Pray did you never see any of his Writing but that Letter you speak of Sir Tho. Pinfold No not that I remember Mr. Iust. Powel Mr. Sollicitor you must call other Witnesses for this does not prove any thing Mr. At. Gen. We will go on Swear Mr. Clavel Mr. Clavel Sworn Mr Sol. Gen. Do you know my Lord Bishop of Peterburgh's Hand-writing or no Mr. Clavel I have seen it many times Mr. Sol. Gen. Do you know it when you see it Mr. Clavel I believe I do Sir. Mr. Sol. Gen. Pray look upon that Paper and upon your Oath tell us do you believe that Name to be his Writing or no Mr. Clavel I do believe it is my Lord. Mr. At. Gen. Pray look upon the rest of the Hands there do you know any of the other Names Mr. Clavel No I do not Mr. Att. Gen. Have you ever seen any of their Writing Mr. Clavell It is probable I may have seen some but do not now remember it Mr. Sol. Gen. I think you are a Bookseller Mr. Clavell Mr. Clavell Yes I am so Sir. Mr. Sol. Gen. I suppose you have had some Dealings with them in the way of your Trade Did you never see any of their Writing Mr. Clavell I have seen the Names of some of them but it is so long since that I cannot Remember L. C. I. Did you ever see my Lord of Peterborough Write Mr. Clavell I cannot tell whether ever I saw him Write his Name or no but I have had several Letters from my Lord of Peterborough Mr. Sol. Gen. Is that his Hand-writing Mr. Clavell I cannot say it is I believe it is Mr. Sol. Gen. You have had Letters from him you say Mr. Clavell Yes and it seems to be like his Hand Mr. Pollixfen But you never saw him Write his Hand you say Mr. Clavell I cannot say I ever did Mr. Sol. Gen. These Letters that you have received from my Lord of Peterborough did he own them Do you think they were Counterfeit or of his own Hand-writing Mr. Clavell I suppose he has owned them Sir. Mr. I. Powell But you must Answer directly Sir Did he own them Mr. Sol. Gen. What did those Letters concern were they about Books or what Mr. Clavell They were sometimes about one business sometimes about another Mr. Sol. Gen. Was the subject-matter of any of these Letters about Mony and was it paid you Did you receive or did you give any account of it Mr. Clavell They were about several Businesses L. C. I. Look you Mr. Clavell you must give us as particular account as you can Mr. Sol. Gen. Pray Sir upon those Letters were the things done that those Letters required Mr. Clavell Yes they were Mr. Sol. Gen. Did you do your part Mr. Clavell Yes I did Mr. Sol. Gen. Now I would ask you Do you believe that Name of my Lord Bishop of Peterborough to be the Hand-writing of my Lord Bishop Mr. Clavell I believe it is Mr. I. Powell Do you know that those Letters that you say you received from my Lord were of my Lords own Hand-writing Do you Swear that Mr. Clavell My Lord I cannot Swear that Mr. Finch Do you know whether the Letters
that you received as you say were written by my Lord himself or by his Secretary Mr. Clavell I have received Letters from him and his Secretary too Sir G. Treby But were you present with him when he writ any Letters with his own Hand Mr. Sol. Gen. You do not mean a Letter to your self sure Sir George Sir G. Treby No Sir I say any Letters Mr. Clavell I have been present with my Lord often but I cannot say I have seen my Lord write L. C. I. He has here told you he has had several Letters of my Lords own Hand and from his Secretary too Mr. I. Powell He has said it but you see he says he never saw him write Mr. Sol. Gen. We have given Evidence against my Lord Arch-Bishop Lord Bishop of Ely St. Asaph Peterborough and Bristol Mr. I. Powell Certainly Mr. Sollicitor you mistake But go on Mr. Sol. Gen. We have given Evidence I say against them Sir but whether it be sufficient Evidence we shall Argue by and by Call Mr. Hooper and Mr. Chetwood again Mr. Chetwood appeared Mr. Sol. Gen. Do you know the Hand-writing of my Lord Bishop of Bath and Wells Mr. Chetwood I have seen it Twice or Thrice but it is a considerable time since I did see it Mr. Sol. Gen. Do you believe that is his Hand-writing Mr. Chetwood I never saw him writâ—… his Name in my Life Mr. Sol. Gen. Pray look upon the Name and tell us what you believe of it Mr. Chetwood I believe it may but I do not certainly know it to be his Hand I rather believe it is my Lord Bishop of Bath and Wells his Hand than I believe that other to be my Lord of Peterboroughs Sir G. Treby Do you believe that to be my Lord of Peterborough's Hand or no Mr. Chetwood I say I rather believe that this is the Bishop of Bath and Wells his Writing than that which is above it or below it to be their Writing but truly I do not distinctly know my Lord Bishop of Bath and Wells his Hand Mr. Sol. Gen. Call Mr. Hooper L. C. I. You are very lame in this matter Mr. Sol. Gen. The Witnesses are unwilling and we must find out the Truth as well as we can Mr. Hooper did not appear Mr. Sol. Gen. Call Mr. Iames and Mr. Powell Mr. James appeared and was Sworn Mr Sol. Gen. Do you know my Lord Bishop of Bristol's Writing Mr. Iames Mr. Iames. Yes I believe I do but I am not so certain because my Lord Writes several times several Hands Mr. Sol. Gen. Shew him the Paper Is that my Lord of Bristol's Hand Mr. Iames. I cannot say it is or no. Mr. Sol. Gen. What do you believe Mr. Iames. It looks like his Hand and that 's all I can say Mr. Sol. Gen. But pray hearken and Answer to what I ask you you are prepared for one Question it may be and I shall ask you another upon your Oath Do you believe it to be the Hand-writing of my Lord of Bristol Mr. Iames. Upon my Oath I can only say it looks like it that 's all L. C. I. Did you ever see him Write Mr. Iames. Yes my Lord I have seen his Hand-writing several times and it is like his Hand-writing that is all I can say Mr. Sol. Gen. Sir remember you are upon your Oath and Answer my Question Mr. Iames. Upon my Oath I know no more than that Sir William Williams Mr. Sol. Gen. I ask you Sir whether you believe it to be his Hand or not Mr. Iames. My Lord it looks like his Hand and it may be his Hand Mr. Att. Gen. But you do think and believe one way or other What do you believe Mr. Iames. It may be his Hand for what I know and it may not Mr. Sol. Gen. It may be your Hand Mr. Iames. No Sir it cannot be mine I am sure Mr. Sol. Gen. What do you believe Mr. Iames. I believe it may be his Hand or it may not be his Hand that is all I can say L. C. I. Come Sir you must Answer fairly Do you believe it to be his Hand or do you not Mr. Iames. Yes I do believe it Mr. Att. Gen. You are very hard to believe methinks Mr. Iames. No I am not Mr. Sol. Gen. You do very well now Mr. Iames when you do well we 'll commend you Mr. Att. Gen. Call Mr. Nathaniel Powell Mr. Powell was Sworn Mr. Sol. Gen. Pray Sir let 's know what 's your Name Mr. Powell My Name is Nathaniel Powell Mr. Sol. Gen. Pray do you know the Hand-writing of my Lord Bishop of Chichester Mr. Powell I have not seen the Paper Sir. Mr. Sol. Gen. Do you know his Hand-writing Mr. Powell Yes I believe I do Mr. Sol. Gen. Look upon that Name of his Mr. Powell I did not see my Lord Write that Mr. Sol. Gen. Who says you did no Body asks that of you how you Answer Pray Sir remember your Oath and Answer seriously Do you believe it to be his Writing or no Mr. Powell I believe it is like my Lord's Hand-writing but I did never see him Write it Mr. Sol. Gen. No Body says you did Mr. Powell Therefore I cannot Swear positively it is his Hand Mr. Sol. Gen. We do not ask that neither Mr. Powell I cannot tell whether it be his Hand or no. L. C. I. Sir you must Answer the Question directly and seriously Do you believe it or do you not believe it Mr. Powell I cannot tell what to believe in the Case Mr. Sol. Gen. Then I ask you another Question upon your Oath Do you believe it is not his Hand Mr. Powell I cannot say that neither Mr. Sol. Gen. Once again I ask you upon your Oath Do you believe it to be his Hand I ask you plainly and let Mankind Judge of you Mr. Powell I tell you Sir I cannot tell what to believe Mr. Sol. Gen. My Lord if these things be endured there will be an end of all Testimony if Witnesses do not answer fairly to the Questions that are asked them Mr. I. Powell Truly to me for a Man to Swear his Belief in such a matter is an extraordinary thing Mr. Sol. Gen. He is obliged to answer Questions when they are fairely put to him Mr. Pollixfen I think that is a hard Question not to be Answered Mr. Sol. Gen. Make your Exceptions to the Evidence if you please L. C. I. First he says He knows his Hand then he says He has seen him write and then he says He did not see him write this but he shuffles he won't answer whether he believes it or not Mr. Pollixfen The Question is Whether belief in any case be Evidence Mr. Sol. Gen. If they have a mind to a Bill of Exceptions upon that point let them Seal their Bill and we 'll Argue it with them when they will in the mean time we 'll go on and that which we now pray my Lord is That this Paper
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
was proper for you to stand upon the Place where it was Written as yet Mr. Serj. Levinz When we are upon an Information of a Fact in Middlesex will you hear them give Evidence of a Fact in Yorkshire Mr. Sol. Gen. We are not to be driven by these Gentlemen we are to be directed by the Court. L. C. I. I think truly it is yet too early to make this Objection Mr. Serj. Pemberton Surely my Lord this is our time to oppose the Reading of it as not proved Mr. I. Powell Mr. Sollicitor I think you have not sufficiently proved this Paper to be Subscribed by my Lords the Bishops Mr. Sol. Gen. Not to Read it Sir Mr. I. Powell No not to Read it it is too slender a Proof for such a Case I grant you in Civil Actions a slender proof is sufficient to make out a Man's Hand by a Letter to a Tradesman or a Correspondent or the like but in Criminal Causes such as this if such a proof be allowed where is the safety of your Life or any Man's Life here Mr. Sol. Gen. We tell you a Case where it was allowed and that is Mr. Sidney's Case a Case of Treason and Printed by Authority We tell you nothing but what was done to'ther day L. C. I. I tell you what I say to it I think truly there is proof enough to have it Read and I am not ashamed nor afraid to say it for I know I speak with the Law say what you will of Criminal Cases and the danger of Peoples Lives there were more danger to the Government if such proof were not allowed to be good Mr. I. Powel I think there is no danger to the Government at all in requiring good proof against Offenders L. C. I. Here 's my Lord Archbishop and the Bishop of St. Asaph and my Lord of Ely their Hands are proved it is proved to be my Lord Archbishop's Writing by Mr. Brookes and he proves my Lord of Ely's Hand by Comparison and so my Lord of St. Asaph's Now Brother Pemberton there 's an Answer to your Objection it being proved that it is all my Lord Archbishop's Hand then they come and say We 'll prove the Hands of the others by comparison and for that they bring you Witnesses that say They have received Letters from them and seen their Hand-writing several times and comparing what they have seen with this very Paper says the Witness I do believe it to be his Hand Can there be a greater Evidence or a fuller Mr. Serj. Pemberton Admit it be a full Evidence against my Lord Arch-Bishop What 's that to the rest There 's no Evidence against them Mr. I. Allybone Brother Pemberton as to the Objection you make of Comparing of Hands it is an Objection indeed I do agree but then consider the inconvenience which you and Mr. Pollixfen do so much insist upon If a Man should be accused by Comparison of Hands Where is he He is in a lamentable Case for his Hand may be so Counterseited that he himself may not be able to distinguish it But then you do not consider where you are on the other side that may be an Objection in matters of Fact that will have very little weight if compared and set altogether For on the other side where shall the Government be if I will make Libels and traduce the Government with Prudence and Discretion and all the secrecy imaginable I 'll Write my Libel by my self prove it as you can that 's a fatal blot to the Government and therefore the Case is not the same nor is your Doctrine to pass for current here because every Case depends upon its own Fact. If I take upon me to Swear I know your Hand the inducements are to my self how I came to know it so as to Swear it Knowledge depends on Circumstances I swear that I know you but yet I may be under a mistake for I can have my knowledge of you no other way but from the visibility of you and another Man may be so like you that there is a possibility of my being mistaken but certainly that is Evidence and good Evidence Now here are several Gentlemen that swear as to my Lord Archbishop's Hand-writing I do agree as to some of the others that the Evidence is not so strong for what that Man said that he did believe it was rather such a Lord's Hand than that which went before or that which came after it is of no weight at all and so some of the others but it is positively proved against my Lord Archbishop and one or two more so that that 's enough to induce the reading of this writing Mr. Iust. Holloway Good my Lord let me give my opinion L. C. Iust. Ay withall my heart Brother Mr. Iust. Holloway My Lord I think as this Case is there ought to be a more strong proof for certainly the proof ought to be stronger and more certain in Criminal matters than in Civil matters in Civil matters we do go upon slight proof such as the comparison of Hands for proving a Deed or a Witnesses Name and a very small proof will induce us to read it but in Criminal matters we ought to be more strict and require positive and substantial proof that is fitting for us to have in such a Case and without better proof I think it ought not to be read L. C. Iust. You must go on to some other proof Mr. Sollicitour for the Court is divided in their Opinions about this proof Mr. Soll. Gen. Then my Lord we will come to the Confessions of my Lords the Bishops and I hope that will be believed by all Man-kind Mr. Att. Gen. Truly my Lord we did forbear that Evidence and would not have proceeded this way if we had had fair play on the other side Sir Ro. Sawyer Mr. Attorney give us leave to defend our Clients all the ways we can I think we doe nothing but what is fair the Court you see is divided therefore we did not without reason insist upon it L. C. Iust. You must go on as you can for they will put you upon it Mr. Att. Gen. Swear Mr. Blathwayt Mr. Blathwayt Sworn Mr. Soll. Gen. Pray hand the writing to him The writing shown to him Mr. Soll. Gen. Have you seen that writing formerly Sir Mr. Blathwayt Yes Sir. Mr. Soll. Gen. What did you hear my Lord Arch-Bishop say about that Paper Mr. Att. Gen. And the rest of my Lords the Bishops Mr. Soll. Gen. First we 'll ask as to my Lord Arch-Bishop did he own it to be his Hand-writing Mr. Blathwayt My Lord I believe this to be the Paper that my Lord Arch-bishop did own to be subscribed by him Mr. Soll. Gen. When was it owned by him Mr. Blathwayt On the Council day the Eighth of this Month. Mr. Soll. Gen. Where was it owned because we would obviate that Objection of the County Mr. Blathwayt It was at the Council Table at
Whitehall Mr. Soll. Gen. What say you to the Bishop of St. Asaph Did he own it Mr. Blathwayt Yes All my Lords the Bishops did own it Mr. Soll. Gen. Name them particularly what say you the Bishop of Ely Mr. Blathwayt In the same manner my Lord. Mr. Soll. Gen. The Bishop of Chichester Mr. Blathwayt In the same manner Mr. Soll. Gen. The Bishop of Bath and Wells Mr. Blathwayt Yes my Lord. Mr. Soll. Gen. The Bishop of Peterborough Mr. Blathwayt Yes my Lord. Mr. Soll. Gen. And the Bishop of Bristol Mr. Blathwayt Yes my Lord. Mr. Soll. Gen. So We have proved they all owned it Mr. Iust. Holloway Could not this have been done at first and saved all this trouble Sir Rob. Sawyer Have you done with Mr. Blathwayt Mr. Attorney that we may ask him some questions Mr. Att. Gen. Ask him what you will. Mr. Ser. Pemb. Pray Mr. Blathwayt upon what occasion did they own it you are Sworn to tell the whole truth pray tell all your Knowledge and the whole Confession that they made Mr. Blathwayt My Lord I am called here by a Subpoena to answer on behalf of the King my Lord I am ready to doe my duty and I beg of your Lordship that you would please to tell me what is my duty for whatsoever I shall answer I shall speak the truth in Mr. Ser. Pemb. There is nothing desired but that you would speak the truth Mr. Blathwayt My Lord I am easily guided by your Lordship what I ought to answer to L. C. Iust. What is it you ask him Brother Pemberton Mr. Ser. Pemb. We desire Mr. Blathwayt to tell the whole discourse that passed at the Council when he says my Lords the Bishops owned this Paper Mr. Soll. Gen. That 's a very pretty thing indeed L. C. Iust. Look you Mr. Blathwayt you must answer them what they ask you unless it be an ensnaring Question and that the Court will take care of Mr. Blathwayt If your Lordship please to ask me any Question I shall readily answer it L. C. Iust. You must answer them Mr. Ser. Pemb. We ask you upon what occasion they came to own their Hands What discourse was made to them and what they answered Mr. Blathwayt My Lord I beg your Lordship's directions L. C. Iust. Come tell it Sir. Mr. Blathwayt My Lord the occasion was this This Paper was read in Council and I had the honour to read it before the King and it having been read before his Grace the Arch-Bishop and my Lords the Bishops they were asked whethey did own that Paper and my Lord they did own it Sir Rob. Sawyer Mr. Blathwayt was that the first time that my Lords the Bishops came in Mr. Blathwayt Sir I was not asked that Question L. C. Iust. What would you have Sir Robert Sawyer Sir Robert Sawyer We would have an account what passed at the Council L. C. Iust. Would you have all the Discourse betwixt the Council and my Lords the Bishops Mr. Ser. Pemb. All that relates to their Accusation my Lord their whole Confession and what was said to them Mr. Att. Gen. Do you think Mr. Serjcant that when we call a Witness you are at liberty to examine him to every impertinent thing Mr. Soll. Gen. My Lord we desire that they may only ask reasonable and proper Questions Mr. Ser. Pemb. Mr. Sollicitour he is sworn to answer and tell the whole truth and that 's all we ask of him Sir Rob. Sawyer Sir I will ask you a plain Question upon your Oath did not my Lord Arch-Bishop and the rest of my Lords the Bishops at first resuse to own it or to answer whether it were their Hands or not Mr. Soll. Gen. That is not a fair Question Sir Robert Sawyer 't is a leading Question Mr. Ser. Pemb. Then I ask you in short what did they refuse I am sure that is a fair Question for God forbid that any should hinder the King's Evidence from telling truth Sir Rob. Sawyer And God forbid that half Evidence should condemn any man. L. C. Iust. God forbid the Truth should be concealed any way Mr. Ser. Pemb. Pray Sir when they were first asked whether that was their Hands or not what answer did they give Mr. Blathwayt Sir I have begged the favour of my Lords the Judges to tell me what I am to answer and what Questions are proper for me to answer to L. Ch. Iust. You must answer any Questions that are not ensnaring Questions Sir Robert Sawyer Mr. Blathwayt you are upon your Oath to testifie the Truth Mr. Blathwayt Sir I am not acquainted with the Methods of Law I desire my Lords the Judges would instruct me Mr. Iust. Ailibone Answer to the Question that they ask you Ld. Ch. Iust. We observe what they ask you we 'll take care that they ask you nothing but what they should Mr. Blathwayt I desire the Question may be repeated Mr. S. Pemberton When they were first asked if it were their Hands what answer did they give the King Mr. Blathwayt His Grace the Archbishop and my Lords the Bishops at first did not immediately answer whether the Paper were theirs or no. Mr. S. Peinberton What did they say Mr. Blathwayt They said they did humbly hope if they were put to answer no advantage should be taken against them Mr. S. Pemberton What did they say farther at that time concerning His Majesties pleasure Mr. Soll. Gen. That 's a leading Question Mr. S. Pemberton you cannot leave your way of leading Witnesses Mr. S. Pemberton It is a very strange thing if we ask a question that 's general that 's excepted to if we ask any question in particular then they find fault with us that it is a leading Question so that we can never ask a question that will please them Pray Mr. Blathwayt what did they say concerning the King's pleasure whether they would answer if the King commanded them Mr. S. Trinder How can it be material what they said L. Cn. Iust. It is material that it should be asked and that it should be answered Mr. S. Levinz You are to tell the whole Truth Sir Pray tell us what did my Lords the Bishops say about submitting to the King's pleasure Mr. Soll. Gen. What is that to the purpose Mr. Pollixfen Mr. Sollicitour his Oath is to tell the truth and the whole truth and therefore he must answer my question Mr. S. Pemberton You are mighty loth Mr. Sollicitour to let us hear the truth I would not willingly lead him in any thing and I cannot see that this is any leading question unless his Oath be against Law which says he is to tell the whole truth Mr. At. Gen. My Lord I do beg your Lordship's favour of a word in this thing It is certain if they ask any thing that shall take off the Evidence that was first given that it is not true I cannot oppose it but if they ask questions onely to conflame and to possess people
with foolish notions and strange conceits that is not to the fact that we are now trying Sr. Rob. Sawyer 'T is onely to have the truth out that we doe it Mr. S. Pemberton There is no body here that will be enflamed Mr. Attorney I have asked a fair question the Court has ruled it so Mr. Blathwayt I shall readily answer any question that the Court thinks fit Mr. S. Pemberton Sir by the Oath you have taken you are to tell the whole truth L. Ch. Iust. Is he to tell you all that was done at the Council board that day Mr. S. Pemberton No my Lord onely what passed there about my Lords the Bishops Confession the whole of that matter Mr. Blathwayt There has been so much said between the asking of the question and this time that I desire it may be repeated that I may know what to answer to Mr. S. Pemberton I ask you in short Sir What did my Lords the Bishops say at the time of their appearing in Council concerning the King's pleasure whether they should answer or not Mr. Blathwayt The first time my Lords the Bishops came into the Council they were asked the question whether they did own that Paper they did immediately answer They humbly hoped as they stood there Criminals His Majesty would not take advantage against them but however they would obey His Majesties Command Sir Rob. Sawyer Were they commanded to withdraw Mr. Blathwayt Yes thereupon they were commanded to withdraw which they did Mr. S. Pemberton When they came in again what questions were asked them Mr. Blathwayt They came in several times more than twice I have reason to remark this that they did so Do you mean the second time Sir Mr. S. Pemberton Yes Sir. Mr. Blathwayt The second time they seemed unwilling to own the Paper Sir Rob. Sawyer And what did they doe the third time Mr. S. Pemberton But first let us know what more was done the second time Sir Geo. Treby How was that unwillingness of theirs overcome Mr. S. Pemberton When they exprest their unwillingness what did they say farther Mr. Blathwayt If I remember right they said as they did the first time they humbly hoped His Majesty would not take advantâ—…ge against them Mr. S. Pemberton Then what did they say the third time Sr. Rob. Sawyer Pray were they asked whether they published it Mr. Blathwayt As to the publishing it it was laid before them and I think they were asked the question whether they published it Sir Rob. Sawyer And what answer did they make Mr. Blathwayt I remember His Grace and my Lords the Bishops did not own they had published it but they denied it Sir Geo. Treby After they discovered their unwillingness the second time what followed next Mr. Blathwayt They did withdraw after the second Attendence Mr. S. Levins But what was said to them Was that all that was said to them the second time Mr. Blathwayt I have said two things already that they were unwilling to answer and that they denied the publishing L. Ch. Iust. This is strange usage of a Witness to put him to tell every thing that was said Mr. S. Pemberton I would ask you this question Sir When they came in the second time whether they did desire to know if it were His Majesties Command that they should own it L. Ch. Iust. That I must not permit you to ask Brother that is to lead the Witness Mr. S. Pemberton My Lord he will not answer general questions I have asked him all along general questions and I cannot get an answer from him to them Mr. Blathwayt I am ready to answer any questions that the Court thinks I should answer I am not backward to answer according to my duty L. Ch. Iust. Let one of you ask a question at a time and not chop in one upon another Mr. Soll. Gen. In all the Tryalls that ever I have been in in all the Cases of Criminals the King's Witnesses used to be treated with respect and not to be fallen upon in this manner L. Ch. Iust. He shall be sure to have all respect paid him Mr. Soll. Gen. He is in Office under the King. Mr. S. Pemberton I do not think Mr. Blathwayt does believe I would shew him any disrespect more than he would shew me Mr. Att. Gen. I beg one word my Lord. L. Ch. Iust. Mr. Attorney What do you say Mr. Att. Gen. My Lord I say I do oppose the asking of this question not but that every man has a right to cross examine a Witness but if they ask such a question let them tell us what use they would make of it L. Ch. Iust. Mr. Attorney General for that matter Mr. S. Pemberton My Lord if you please I 'll give Mr. Attorney an answer L. Ch. Iust. Brother Pemberton I was speaking to Mr. Attorney and pray hear me I will not ask you what use you 'll make of the question you ask but do you ask fair and regular questions and I 'll take care you shall have an answer to them Mr. Serj. Pemberton I will deal plainly with the Court and tell you what use we intend to make of our question if they answered under a Promise from His Majesty that it should not be given in Evidence against them I hope they shall not take advantage of it Mr. Soll. Gen. I say that is a very unmannerly question but however it shall be answered Mr. Serj. Pemberton Why so Mr. Sollicitour Mr. Soll. Gen. My Lord it is to put something upon the King which I dare hardly name L. C. Iust. We do not know what Answer will be made to it yet but it does look like an odd kind of question Mr. Soll. Gen. If men will be so pressing I for the King desire the question may be entred Sir R. Sawyer What do you mean Mr. Sollicitour Mr. Soll. Gen. I know very well what I mean Sir I desire the question may be recorded in Court. Mr. Serj. Pemberton Record what you will I am not afraid of you Mr. Sollicitour Mr. Soll. Gen. Are you afraid of the Law Mr. Serj. Pemberton No nor of you neither L. C. Iust. Pray be quiet Gentlemen Mr. Att. Gen. Pray Mr. Blathwayt answer whether there was any promise made to my Lords the Bishops from the King. Mr. Blathwayt My Lord I take the question to be whether the King was pleased to make my Lords the Bishops any promise of not taking advantage of what answer they made Mr. Att. Gen. That is the question Mr. Blathwayt As that question is stated there was no such made L. C. Iust. Look you he tells you there was no such promise made there is an Answer to your Question Brother Mr. Serj. Levinz We made no such question but the question I would ask is this Mr. Soll. Gen. For the satisfaction of the Court repeat what you said just now Mr. Blathwayt Mr. Blathwayt I take the question to be whether the King made any promise
own Act and Dead It is true if my Lords had published a Paper that was contrived by some of their Council it had been some Excuse and they must have only suffered for that Publication in the place where it was done but they are here for Writing this they have owned in this County and therefore iâ—…â—…es upon them to prove it done elsewhere There is another Objection my Lord made That here is no Evidence of a Publicationâ—… my Lord I take it to be a Publication in it self Is it possible for a man to write a Libell to set his Name and part with it and it coming to the hands of the King that this is not a Publication It is not their saying we did not publish it that will excuse them for can there be a greater Publication in it self than this when men have set their Hands to it and owned their Names what makes the Fact in this Case If a Deed he denied to be factum of such a one what is the proof of it but setting the Hand and Seal and the Delivery There is owning the Paper and setting their Hands is a Publication in it self and therefore they cannot make any such Objection My Lord if there were occasion we have Authorities enough to this purpose and we will give them scope enough if they will argue this matter and if they have any Evidence we desire to hear what they can say to it Mr. Att. Gen. As for this matter of Fact my Lord if I take it right they do not Controvert the Publishing but say they pray make it out where it was written or composed I confess this would be a business worth the while for all persons that act in this manner and are concerned in making of Libels to understand for their advantage no man doubts in the matter of Treason but it is local then put the Case a man is found in Middlesex with a treasonable Paper in his Pocket I do not make a Comparison as if this was such a Paper I hope I am not so understood but I only put it as a Case and that the Law is so is beyond all Controversie then the man is indicted here in Midds for framing and composing such a Treasonable Libell and he comes to be tryed and says he Pray prove where I made and composed it for though you found it in my Pocket in the County of Midds yet I might doe it in the County of York upon my word this had been a very good Defence for Mr. Sidney who was indicted convicted and attainted for making a Treasonable Paper which was found in his Study might not he have put the same Objection might not Mr. Sidney have said it was great pity he did not understand it pray prove where I did it for I did it elsewhere than in this County Mr. Sol. Gen. He did say it I remember Mr. Att. Gen. Truly my Lord I would not hear any Answer given to this for it would make the King in a very woful Case Here is a Paper that is found in the County of Midds and this is there owned by you to be written and subscribed by you pray do you prove it that it was written elsewhere Mr. Serj. Pemb. My Lord we will doe it we will be governed by Mr. Attorney for once Mr. Serj. Levinz We will prove that my Lord Archbishop was not in Middlesex in seven Months before and truly I think Mr. Attorney's Case of a Paper found about a man or in his Custody will not come up to our Case for was this Paper found about us surely that is not pretended Mr. Serj. Pemb. Your Lordship sees by the very frame of the Petition that this Petition which they call a Libell was made after the King's Order concerning reading this Declaration Now we shall prove that my Lord Archbishop whose hand-writing they prove this to be was not out from Lambeth-House in two Months before nor till he was before the Council Sr. Rob. Sawyer Which was long after that time when it was made Mr. Serj. Pemb. So that this cannot be written in the County of Middlesex Call Francis Nicholls Mr. Nicholls was sworn Sir R. Sawyer Do you remember the 18th of May last Mr. Nicholls Yes Sir. Sir. R. Sawyer Pray how was it with my Lord Archbishop of Canterbury at that time and before that did he go abroad Mr. Nicholls My Lord I am very sure that my Lord his Grace of Cant. whom I have served in his Bed Chamber this seven years never stirred out of the Gate of Lambeth House since Michaelmas last Sir R. Sawyer Till when Mr. Nicholls Mr. Nicholls Not till the time he was summoned before the Councill Mr. Serj. Pemb. Now I hope we have given them a full proof that it could not be in Middles Call Thomas Smith Mr. Smith was not examined Mr. Finch Truly my Lord I think that what we have proved or what Proof we further offer of my Lord of Canterburies not being in Middlesex for so long a time is ex abundanti and we need it not for with humble submission in point of Law it is incumbent upon them that are to prove the Charge in the Information to prove where it was done because the Locality of it is part of the thing they ought to prove it in it's nature it is local there is a Place assigned in the Informâ—…ion and unless they prove it was done in the Place that they have laid they have not proved the Charge in the Information Now my Lord they have not made any Proof of that and for proof of Publication I think they have offered none to your Lordship they never did call it so yet and truly I never did hear or know that the owning of their Hands at the Council-Table was a Publication of a Libel it is owning the Writing but it is not an owning where the Writing was made but where it was written and where it was made is of necessity to be proved before the Charge upon a Record in a Court of Justice can be said to be made out it is a Local Charge and in Justice the locality must be proved or the Information fails my Lord they have offered no Proof to it and they have not yet gone to the second part of the Information for as to the Publication of it there is not a tittle of Proof offered but only the owning of their Hands upon their Examination at the Council and no Man did ever yet think that the answering a Question and owning a Paper at the Council-Table upon a Question put by the King himself was a Publication of a Libel Mr. Serjeant Baldock Pray my Lord hear me a Word to that Though the thing be never so local yet there must be some place where a thing that was done was done Then if nothing else appears but what was done in Westminster in the County of Middlesex unless they shew the contrary that must be the very
the County of Middlesex and therefore the Jury must find them not guilty Mr. Attor Gen. I 'le put you but one case my Lord a Man has an opportunity secretly to deliver a Libel into the King's hands when no Body is by and so there can be no proof of the delivery Mr. Iust. Powel 'T is a dangerous thing Mr. Attorney on the other side to convict People of Crimes without proof Mr. Attorney General But shall a Man be permitted thus to affront the King and there be no way to punish it Lord Chief Iustice. Yes there will sure but it will be a very strange thing if we should go and presume that these Lords did it when there is no sort of Evidence of it 't is that which I do assure you I cannot do we must proceed according to Evidence and forms and methods of Law they may think what they will of me but I always declare my mind according to my Conscience Mr. S. Trinder But as to that other point whether their owning of it be a publication has not been particularly spoke to Lord Chief Iustice. Mr. Attorney and Mr. Solicitor if there were enough to raise doubt in the Court so as to leave it to the Jury I would summ up the Evidence Mr. Solicit Gen. My Lord we know it is with the Court these Lords insisted upon it that it was a great while in their hands but it seems as far as our Evidence has gone hitherto their Confession went no farther than that it was their Paper and we must not extend their Confession further than it was but I think we shall offer a fair Evidence that they did deliver it in the County of Middlesex Lord Ch. Iust. Indeed indeed you ought to have gone to this Mr. Solicitor before the Court gave their Opinions Mr. Solicit Gen. Pray call Mr. Blathwayt again Mr. Blathwayt called Lord Ch. Iust. Mr. Solicitor unless you are sure that Mr. Blathwait is a Witness to the publication 't is but spending the Courts time to no purposâ—… to call him Mr. Solicit Gen. We are sure of nothing my Lord but we must make use of our Witnesses according to our Instructions in our Briefs Then Mr. Blathwait appeared Mr. Attor Gen. Mr. Blathwait you were sworn before Mr. Blathwait Yes Sir. Mr. Attor Gen. Your were present when this Paper or Petition was dell vered by the King at the Council-Board Mr. Blathwait Yes I was so Sir. Mr. Attor Gen. Do you remember any thing of the Bishops acknowledging their delivery of it to the King. Mr. Sol. Gen. Mr. Blathwait I would ask you was there any mention or discourse with my Lords the Bishops how that Paper came into the King's hands was there any mention of what it was done for upon the account of Religion or how Mr. Blathwait I don't remember any thing of that Mr. Solicitor at which there was a great Laughter Lord Ch. Iust. Pray let us have no laughing it is not decent can't all this be done quietly without noise pray Mr. Blathwait let me ask you do you remember there was any discourse how that writing came into the Kings hands Mr. Blathwait I received it from the Kings hands and I know it was presented to him by my Lords the Bishops Lord Ch. Iust. How do you know it was presented to the King. Mr. Blathwait I heard the King say so several times Mr. Sol. Gen. Pray mind my question Sir first I ask you who produced the Paper at the Council-Table Mr. Blathwait The King. Mr. Sol. Gen. What said the Bishops when that Paper was shewed them Mr. Blathwait Then as I remember they were asked whether that was the Paper that they delivered to the King Mr. Sol. Gen. Then what said the Bishops Mr. Blathwait They at first scrupled to answer and they said it might be made use of to their prejudice if they owned it Mr. Att. Gen. Pray Mr. Blathwait consider again was that the question put to my Lords the Bishops whether that was the Paper that was presented by them to the King Mr. Blathwait I do think to the best of my remembrance that my Lord Chancellor did ask them to that purpose I cannot speak to the very words Mr. Sol. Gen. And upon this what answer did they make Mr. Blathwait My Lords the Bishops scrupled to answer the first and second time as I told you before but they did own it was the Petition that they presented to the King to the best of my remembrance Mr. Sol. Gen. Did the Archbishop do any thing to own it Mr. Blathwait Yes both my Lord Archbishop of Canterbury and the rest of the Bishops did own all the same thing Mr. Sol. Gen. Was this done at Whitehall Mr. Blathwait Yes at the Council-Table L. Ch. Iust. Pray recollect your self and consider what you say did they own that that was the Paper they delivered to the King Mr. Serj. Pemb. Pray my Lord give us leave to ask a question to clear this matter was the question put to them Whether it was the Paper that they delivered or whether it were their hands that were to it Mr. Blathwait My Lord I do not so exactly recollect the words L. Ch. Iust. But pray tell us if you can what the question was Mr. Blathwait My Lord I do not remember the very words but I think if Mr. Serjeant Pemberton be pleased to repeat his question I shall give him a satisfactory answer as well as I can Mr. Serj. Pemberton Sir that which I ask you is this Whether the question that was put to my Lords the Bishops at that time was Whether this was the Paper that they deliver'd to the King or whether those were their hands that was to it Mr. Blathwait My Lord I did always think that it was a plain Case that that was the Paper that they delivered to the King and my Lords the Bishops did never deny but that they gave it to the King and I had it from the King's hands L. Ch. Iust. But we must know from you if you can tell us what the question was that was put to my Lords the Bishops were they asked Whether those were their hands that were to that paper or was it Whether they delivered that paper to the King Mr. Blathwait As to the first part that they owned 't was their hands that I am sure of but as to the other I do not remember what the words were At which there was a great shout Mr. Att. Gen. Pray Mr. Blathwait recollect your self you say the King produced it Mr. Blathwait Yes Sir. Mr. Att. Gen. Do you remember that the King asked them any question upon the producing of it Mr. Blathwait My Lord Chancellor asked them if those were not their hands to the Petition Mr. Sol. Gen. Was there any other matter in discourse whether that was the paper that was delivered by them to the King Mr. Blathwait I cannot so positively say what were the words that my Lord
remember whether or no they were asked if that was the Petition that they delivered to the King Mr. Bridgm. My Lord I have answered that question as directly as I can I do not positively remember that that was the question Lord Ch. Iust. Mr. Solicitor General you must be satisfied when proper questions are fairly answered and therefore pray be quiet Mr. Att. Gen. However we pray we may ask the rest of the Clerks of the Counsel it may be they may remember more Sir Iohn Nicholas you were at the Council-Table that day my Lords the Bishops were examined about this Paper Sir Iohn Nicholas Yes Sir I was Mr. Att. Gen. Pray did you observe that the King produced the Petition Sir Iohn Nicholas No indeed I did not see it Mr. Att. Gen. Did you observe any thing that passed there in discourse Mr. Sol. Gen. Did you observe any questions that were asked the Bishops either by the King or by my Lord Chancellor Sir Iohn Nich. I think my Lord Chancellor did ask them if that was their hands to the Petition and they owned it Mr. Sol. Gen. Do you remember whether they owned that they delivered that Paper to the King Lord Ch. Iust. I 'le ask you Sir Iohn Nicholas did my Lord Chancellor ask them this question is this the Petition you delivered to the King Sir Iohn Nicholas I do not remember that Then there was a great shout Mr. Sol. Gen. Here 's wonderfull great rejoycing that truth cannot prevail Mr. S. Pemberton No Mr. Solicitor truth does prevail Mr. Sol. Gen. You are all very glad that truth is stifled Mr. Serjeant Mr. S. Trinder Pray Sir Iohn Nicholas let me ask you one question was there any discourse about delivering that Petition to the King Sir Iohn Nicholas Indeed I do not remember it Mr. Sol. Gen. There is Mr. Pepy's wee 'll examine him Mr. Pepy's sworn Lord Ch. Iust. Come I 'le ask the questions were you bye at the Council-Board when my Lords the Bishops were committed Mr. Pepy's Yes I was Lord Ch. Iust. What were the questions that were asked either by the King or by my Lord Chancellor Mr. Pepy's My Lord I would remember as well as I could the very words and the very words of the question were I think My Lords do you own this Paper I do not remember any thing was spoken about the delivering but I believe it was understood by every body at the Table that that was the Paper that they had delivered Lord Ch. Iust. Well have you done now But to satisfie you I 'le ask this question was this question asked my Lords was this the Paper you delivered to the King Mr. Pepy's No my Lord. Mr. Att. Gen. Pray Sir do you remember whether the King himself asked the question Mr. Pepy's You mean I suppose Mr. Attorney that these were the words or something that imported their delivering it to the King. Mr. Att. Gen. Yes Sir. Mr. Pepy's Truly I remember nothing of that Mr. Sol. Gen. Did you observe any discourse concerning their delivery of it to the King. Mr. Pepy's Indeed Mr. Solicitor I do not Mr. Att. Gen. Swear Mr. Musgrave Mr. Musgrave Sworn Lord Ch. Iust. You hear the question Sir what say you to it Mr. Musg My Lord I will give as short an acount of it as I can the first time after his Majesty had produced the Petition and it was read at the Board his Grace my Lord Arch Bishop of Canterbury and the other six Reverend Lords Bishops were called in and it were asked of them if they owned that or if it was their hands my Lord Archbishop in the name of the rest did decline answering upon the account that they were there as Criminals and were not obliged to say any thing to their own prejudice or that might hurt them hereafter but if his Majesty would command them and if he would promise that no advantage should be made of whatsoever they confessed then they would answer the question his Majesty made no answer to that but only said he would do nothing but what was according to Law whereupon the Bishops were ordered to withdraw and being called in a second time the Petition was shewn to them and they were asked if they did own it or if it was their hands and I think my Lord Archbishop did say then we will rely upon your Majesty or some such general thing was said and then they did all own it that it was their hands I cannot say the Petition was read to them Mr. Iust. Pow. Mr. Blathwait as I remember it was the third time Mr. Musgrave It was the second time to the best of my remembrance Lord Ch. Iust. Pray Sir was there any question to this purpose is this the Paper you delivered to the King Mr. Musg I do not remember that ever any such direct question was asked Mr. Iust. Allybone But as my Brother Pemberton did very well before distinguish there is a great deal of difference between the owning the subscription of a Paper and between the owning of that Paper Mr. Pepy's did say that they did own the Paper and upon my word that will look very like a Publication Mr. Musg I remember my Lord there was at the same time a question asked because several Copies had gone about the Town whether they had published it and my Lord Archbishop did say he had been so cautious that he had not admitted his own Secretary but writ it all himself and the rest of the Bishops did say they did not publish it nor never gave any Copies of it Mr. Att. Gen. My Lord I confess now it is to be left to the Jury upon this point whether there not being a positive Witness that was by when the thing was done yet upon this Evidence the Jury can't find any otherwise than that the thing was done truly I think we must leave it as a strong case for the King I could have wished indeed for the satisfaction of every body that the proof would have come up to that but we must make it as strong for the King upon the Evidence given as it will bear now my Lord take all this whole matter together here is a Paper composed framed and written by seven learned Men and this must be written by such persons sure for some purpose it is directed as a Petition to the King and this Petition did come to the hands of the King for the King produces it in Counsel and my Lord Archbishop and the rest of the Bishops owned their hands to it then the question is my Lord whether or no there be any room for any body living to doubt in this case that this was not delivered by my Lords the Bishops to the King though it be not a conclusive Evidence of a positive Fact yet unless they shew something on the other side that may give way for a supposition to the contrary that it came out of their hands by surprize or
you but all that I was going to say would have amounted to no more than this That there being no Evidence against us we must of course be acquitted Mr. Just. Holloway My Lord did intend to have said as much as that I dare say L. C. Iust. Well Gentlemen of the Jury we have had Interruption enough Mr. Soll. Gen. My Lord I must beg your Pardon for interrupting you now and I am very glad these Gentlemen have given us this Occasion because we shall now be able to clear this Point There is a Fatality in some Causes my Lord and so there is in this we must beg your Patience for a very little while for we have notice that a Person of very great Quality is coming that will make it appear that they made their Addresses to him that they might deliver it to the King. L. C. Iust. Well You see what comes of the Interruption Gentlemen now we must stay Then there was a Pause for near half an hour Mr. Att. Gen. Pray my Lord put the Case that a Man writes a Libel in one County and it is found in another Is not he answerable unless he can shew something that may satisfy the Jury how it came there Mr. Soll. Gen. Ought he not to give an account what became of it L. C. Iust. No look you Mr. Attorney you must look to your Information and then you will find the Case that you put does not come up to it It is for Writing Composing and Publishing and causing to be published and all this is laid in Middlesex Now you have proved none of all these things to be done in the County Mr. Att. Gen. They did in Middlesex confess it was theirs L. C. Iust. Ay but the owning their Hands is not a publication in Middlesex and so I should have told the Jury Mr. Finch I beg your Lordship's pardon for interrupting you Mr. Att. Gen. But my Lord does it not put the Proof upon them to prove how it came out of their Hands into the King's Hands L. C. Iust. No the Proof lies on your part Mr. Pollixfen Pray my Lord give us your favour to dismiss us and the Jury Mr. Soll. Gen. My Lord our Witnesses will be here presently Mr. Att. Gen. Sure my Lord the Presumption is on our side Mr. Iust. Powell No the Presumption is against you for my Lord Arch-Bishop lived in Surry and it is proved was not out of Lambeth-House since Michaelmass till he came before the Council Mr. S. Pemb. Pray good my Lord we stand mightily uneasy here and so do the Jury pray dismiss us L. C. Iust. I cannot help it it is your own Fault Then there was another great Pause Lord Chief Iustice. Sir Bartho Shore now we have time to hear your Speech if you will. Mr. Poâ—…fen My Lord there is no Body come nor I believe will come Mr. Soll. Gen. Yes he will come presently we have had a Messenger from him Call Mr. Graham 〈◊〉 He is gone and said he would come presently 〈◊〉 〈◊〉 〈◊〉 My Lord he will bring ouâ—… Witnesses with him Then there was another 〈◊〉 Mr. S. Pemb. My Lord this is very unusual to stay thus for Evidence L. Ch. Iust. It is so but I am sure you ought not to have any â—…avour Mr. Solicitor Are you assured that you shall have this Witness that you speak of Mr. Soll. Gen. Yes my Lord he will be here presently L. Ch. Iust. We have staid a great while already and therefore it is â—…it that we should have some Oath made that he is coming Mr. Sol. Gen. The Cryer tells you that Mr. Graham did acquaint him that he would return presently L. Ch. Iust. Give him the Book Mr. Soll. Gen. Let your Left-hand give your Right-hand the Oath The Cryer sworn L. Ch. Iust. By the Oath that you have taken did Mr. Graham tell you there was any further Witness coming in this Case Cryer Yes my Lord he did he went out of the Hall and returned when your Lorship was directing the Jury and he asked me what the Court were upon and I told him you were directing the Jury and then he said my Lord Sunderland was a coming but he would go and prevent him and afterwards he returned and finding your Lordship did not go on to direct the Jury he said he would go again for my Lord Sunderland whom he had sent away and he is now gone for him and he said he would bring him with him presently L. Ch. Iust. Well then we must stay till the Evidence for the King comes for now there is Oath made that he is coming And after a considerable pause the Lord President came Mr. Attor Gen. My Lord we must pray that my Lord President may be sworn in this Case on behalf of the King. The Lord President sworn Mr. Attor Gen. My Lord with your Lordship's favour I would ask my Lord President a Question Your Lordship remembers where we left this Cause we have brought it to this Point That this Petition came to the King's Hands that it is a Petition written by my Lord Arch-bishop and subscribed by the rest of my Lords the Bishops but there is a Difficulty made whether this Petition thus prepared and written was by them delivered to the King and whether my Lords the Bishops were concerned in the doing of it and were privy oâ—… Parties to the Delivery Now that which I would ask your Lordship my Lord President is Whether they did make their Application to your Lordship to speak to the King. Mr. Soll. Gen. Did they make their Application to your Lordship upon any account whatsoever L. President My Lord my Lord Bishop of St. Aâ—…ph and my Lord Bishop of 〈◊〉 came to my Office and told me they came in the Names of my Lord Arch-bishop of Canterbury and four others of their Brethren and themselves with a Petition which they 〈◊〉 to deliver to his Majesty and they did come to me to know which was the best way of doing it and whether the King would give them leave to do it or not they would have had mâ—… râ—…d tâ—…ir Petition but I refused it and said I thought it did not at all belong to me but I would let the King know their desire and bring them an Answer immediately what his pleasure was in it which I did I acquainted the King and he commanded me to let my Lords the Bishops know they might come when they pleased and I went back and told them so upon which they went and fetch'd the rest of the Bishops and when they came immediately they went into the Bed-Chamber and 〈◊〉 another Room where the King waâ—… this is that I know of the matter Mr. Soll. Gen. About what time was this pray my Lord L. President I believe there could not be much time between my coming from the King and their fetching their Brethren and going in to the King. Mr. Soll. Gen. They were with the King that
are Sir Sam. Astrey There is the Clerk of the Records of the Tower Mr. Halstead will read it very well in French or English. Then Mr. Halstead was sworn to interpret the Records into English according to the best of his Skill and Knowledge but not reading very readily a true Copy of the Record in English follows out of the Rolls of Parliament in the 15th Year of King Richard the Second Numero Primo FRiday the Morrow of All Souls which was the first Day of this Parliament holden at Westminster in the fifteenth Year of the Reign of our Lord King Richard the Second after the Conquest the Reverend Father in God the Archbishop of York Primate and Chancellor of England by the King's Commandment being present in Parliament pronounced and declared very nobly and wisely the Cause of the Summons of this Parliament And said First That the King would that holy Church principally and afterwards the Lords Spiritual and Temporal and also the Cities and Burroughs should have and enjoy their Liberties and Franchises as well as they had them and enjoyed them in the Time of his Noble Progenitors Kings of England and also in his own Time. And afterwards said The Summons of this Parliament was principally for three Occasions The first Occasion was To ordain how the Peace and Quiet of the Land which have heretofore been greatly blemished and disturbed as well by Detraction and Maintenance as otherwise might be better holden and kept and the Laws better executed and the King's Commands better obeyed The second Occasion was To ordainâ—… and see how the Price of Wools which is beyond measure lessened and impaired might be better amended and inhaunced And also That in case the War should begin again at the End of the present Truce to wit at the Assumption of our Lady next coming to ordain and see how and whereby the said War may be maintained at the least Charge of the People And the third Occasion was touching the Statutes of Provisors To ordain and see how our Holy Father might have that which to him belongs and the King that which belongs to him and to his Crown according unto that Render unto Caesar the things that are Caesar ' s and unto God the things which are God's Then the other Record of Richard the Second was read as follows out of the Rolls of Parliament the fifteenth Year of King Richard the Second No 8 Be it remembred touching the Statute of Provisors That the Commons for the great Confidence which they have in the Person of our Lord the King and in his most excellent Knowledge and in the great Tenderness which he hath for his Crown and the Rights thereof and also in the noble and high Discretions of the Lords have assented in full Parliament that our said Lord the King by Advice and Assent of the said Lords may make such Sufferance touching the said Statute as shall seem to him reasonable and profitable until the next Parliament so as the said Statute be not repealed in no Article thereof And that all those who have any Benefices by force of the said Statute before this present Parliament and also That all those to whom any Aid Tranquility or Advantage is accrued by virtue of the said Statute of the Benefices of Holy Church of which they were heretofore in Possession as well by Presentation or Collation of our Lord the King as of the Ordinaries or Religious Persons whatsoever or by any other manner or way whatsoever may freely have and enjoy them and peaceably continue their Possession thereof without being ousted thereof or any ways challenged hindred molested disquieted or grieved hereafter by any Provisors or others against the Form and Effect of the Statute aforesaid by reason of the said Sufferance in any time to come And moreover That the said Commons may disagree at the next Parliament to this Sufferance and fully resort to the said Statute if it shall seem good to them to do it With Protestation That this Assent which is a Novelty and has not been done before this time be not drawn into Example or Consequence for Time to come And they prayed our Lord the King that the Protestation might be entred of Record in the Roll of the Parliament And the King granted and commanded to do it Mr. S. Levinz Now my Lord we will go on This was in Richard the Second's Time And a Power is given by the Commons to the King with the Assent of the Lords to dispense but only to the next Parliament with a Power reserved to the Commons and to disagree to it and retract that Consent of theirs the next Parliament Sir Geo. Treby The Statute of Provisors was and is a Penal Law and concerning Ecclesiastical Matters too viz. The Collating and Presenting to Archbishopricks Bishopricks Benefices and Dignities of the Church And in this Record now read the Parliament give the King a limited Power and for a short Time to dispense with that Statute But to obviate all Pretence of such a Power 's being inherent in the Crown as a Prerogative they declare 1. That it was a Novelty that is as much as to say That the King had no such Power before 2. That it should not be drawn into Example that is to say That he should have no such Power for the future Mr. S. Levinz Now we will go on to the Records mentioned in the Petition those in the last King's Time in 1662 and 1672 and that in this King's Time in 1685. Where is the Journal of the House of Lords Mr. Walker sworn L. C. I. Is that the Book of the House of Lords Mr. Walker It is the Journal of the House of Lords L. C. I. Is it kept by you Mr. Walker Yes my Lord. L. C. I. Where is it kept Mr. Walker In the usual place here in Westminster Mr. Soll. Gen. What is that Mr. S. Levinz It is the Journal of the House of Lords But my Lord there is one thing that is mentioned in the last Record that is read which is worth your Lordship's and the Jury's Observation That it is declared a Novelty and a Protestation that it should not be drawn into Precedent for the future L. C. I. That has been observed Brother Let us hear your Record read Clerk read Die Mercurii 18 o die Februarii 1662. His Majesty was present this Day sitting in the Regal Crown and Robes the Peers being likewise in their Robes The King gave Order to the Gentleman Usher of the Black Rod to signifie to the House of Commons his Pleasure that they presently come up and attend His Majesty with their Speaker who being present His Majesty made this Speech following My Lords and Gentlemen I Am very glad to meet you here again having thought the Time long since we parted and often wished you had been together to help me in some Occasions which have fallen out I need not repeat them unto you you have all had
intrusted in him to the Peace and Establishment of the Church of England and the ease of all his Subjects in general Neither does he pretend to the Right of Suspending any Laws wherein the Properties Rights or Liberties of any of his Subjects are concerned nor to alter any thing in the established Doctrine or Discipline of the Church of England But his only design in this was to take off the Penalties the Statutes inflicted upon Dissenters which he believes when well considered of you your selves would not wish executed according to the Rigour and Letter of the Law neither hath he done this with any thought of avoiding or precluding the Advice of his Parliament and if any Bill shall be offered which shall appear more proper to attain the aforesaid Ends and secure the Peace of the Church and Kingdom when tendred in due manner to him he will shew how readily he will Concur in all ways that shall appear good for the Kingdom Sir Rob. Sawyer Turn to the 26th of February 1672. Clerk read Die Mercurii xxij February 1672. Mr. Powle Reports from the Committee appointed to consider of an Answer to return to his Majesties last Message upon the debate of the House an Answer agreed by the Committee and drawn up and put into Writing which he read in his place and then delivered the same in at the Clerks Table where it was twice read and is as followeth viz. Most Gracious Sovereign WE your Majesties most Humble and Loyal Subjects the Knights Citizens and Burgesses in this present Parliament Assembled do render to your most Sacred Majesty our most dutiful Thanks for that to our unspeakable Comfort your Majesty has been pleased so often to reiterate unto us those gracious Promises and Assurances of maintaining the Religion now Established and the Liberties and Properties of your People and we do not in the least Measure doubt but that your Majesty had the same gracious Intention in giving Satisfaction to your Subjects by your Answer to our last Petition and Address Yet upon a serious Consideration thereof We find that the said Answer is not sufficient to clear the Apprehensions that may justly remain in the minds of your People by your Majesties having claimed a Power to suspend Penal Statutes in Matters Ecclesiastical and which your Majesty does still seem to assert in the said Answer to be intrusted in the Crown and never questioned in the Reigns of any of your Ancestors Wherein we humbly conceive your Majesty has been very much Misinformed Since no such Power ever was claimed or exercised by any of your Majesties Predâ—…ssors and if it should be admitted might tend to the interrupting the free Course of the Laws and altering the Legislative Power which hath always been acknowledged to reside in your Majesty and your two Houses of Parliament We therefore with an unanimous Consent become again most humble Suiters unto your Sacred Majesty That you would be pleased to give us a full and satisfactory Answer to our said Petition and Address and that your Majesty would take such effectual order that the Proceedings in this Matter may not for the future be drawn into Consequence or Example The Answer to his Majesties Message was again read by Paragraphs and the several Paragraphs to the last were upon the question severally agreed The last Paragraph being read and the Question being put that the Word unanimous should stand in the Paragraph The House divided The Noes go out Tellers Lord St. Iohn Mr. Vaughan for the Yeas 180. Sir Richard Temple Sir Philip Howard for the Noes 77. And so it was resolved in the Affirmative The Question being put to agree to the Paragraph it was resolved in the Affirmative Resolved c. That the whole Address be agreed to as it was brought in by the Committee Sir Rob. Sawyer Now turn to the Lords Journal and there your Lordship will see that the King does Communicate this Address to the Lords and desires their Advice Read the 1st of March 1672. Clerk reads Die Sabbati primo die Marcii 1672. His Majesty this Day made a short Speech as follows My Lords You know that at the Opening of this Session I spoke here to your Satisfaction it has notwithstanding begotten a greater disquiet in the House of Commons than I could have imagined I received an Address from them which I looked not for and I made them an Answer that ought to have contented them but on the contrary they have made me a Reply of such a nature that I cannot think fit to proceed any further in this Matter without your Advice I have commanded the Chancellor to acquaint you with all the Transactions wherein you will find both me and your selves highly concerned I am sensible for what relates to me and I assure you my Lords I am not less so for the Priviledg and the Honour of this House Afterwards the Lord Chancellor read the several Papers of Addresses of the House of Commons and his Majesties Answer thereunto and opened his Majesties proceedings upon them The Address of the House of Commons was read Sir Rob. Sawyer Pass over that you have read it already Clerk reads The next his Majesties Answer to the Address of the House of Commons was read as follows Sir Rob. Sawyer That hath been read too Clerk reads Then was read the Reply of the House of Commons to his Majesties Answer as followeth Mr. Finch You have read that likewise Clerk reads Upon this it is ordered that the Lord Treasurer Duke of Buckingham Earl of Bridgwater Earl of Northampton Earl of Bristol Earl of Berks Earl of Bullingbrook and the Earl of Anglesy do forthwith withdraw and consider what humble Thanks is fit to be given to his Majesty for his great Favour in communicating this Business to this House and report the same And accordingly the said Lords Committees did withdraw themselves for that purpose The Lords being returned the Duke of Buckingham reported what the Committee had prepared to present to his Majesty by way of Thanks which was read as followeth We the Lords Spiritual and Temporal in Parliament assembled do unanimously present to your Sacred Majesty Our most humble Thanks for having been pleased to Communicate to us what has passed between your Majesty and the House of Commons whereby you have graciously offered us the means of shewing our Duty to your Majesty and of asserting the Ancient Just Rights and Priviledges of the House of Peers The Question being put whether to agree with the Committee It was resolved in the Affirmative Ordered that his Majesty be desired that his Speech and the Papers read this day may be entred into the Journal Book of this House The Lord Treasurer the Duke of Buckingham and the Lord Chamberlain are appointed to attend his Majesty presently to know his pleasure what time and place this whole House shall wait upon him to present the humble Thanks of this House for his great Favour shewed this day
not at all to the purpose That is but what was offered in another Case that may be remembred and offered by way of Plea and pressed with a great deal of Earnestness but Rejected by the Court and now what could not be receiv'd then by way of Plea these Gentlemen would by their Importunity have you receive by way of Parole at the Bar I suppose the Design is to entertain this great Auditory with an Haraâ—…gue and think to perswade the weak men of the World for the wise are not to be imposed upon that they are in the Right and we in the wrong under Favour my Lord we are in the Right for the King we desire this Information may be read and let them plead what by Law they can to it according to the Course of the Court but that which they now urge is untimely and out of Course Sir Rob. Sawyer My Lord we offer this to your Lordship Mr. Att. Gen. Why Gentlemen you have been heard before your time already Mr. S. Pemberton Pray my Lord give us leave to answer what the Kings Counsel have objected L. C. I. The Kings Counsel have answered your Objections and we must not permit Vying and Re-vying upon one another if you have no more to say but only as to the Matters that have been urged you have been heard to it on both sides already Mr. S. Pemberton I would if you please answer what has been objected by the Kings Counsel and state the Case aright Mr. Iust. Allybone Brother Pemberton I do not apprehend that the Objection you make against this Commitment has any weight in it The Objection as I take it is this that these Lords were not legally committed because they were committed says the Return by such and such Lords of the Council particularly named and it does not specifie them to be united in the Privy Council now truly with me that seems to have no weight at all and I will tell you why If my Lord Chief Iustice do commit any Person and set his Name to the Warrant he does not use to add to his Name Lord Chief Iustice but he is known to be so without that Addition and would you have a different Return from the Lieutenant of the Tower to a Habeas Corpus than the Warrant it self will justifie the Lords do not use to write themselves Privy Counsellors they are known to be so as well as a Judge who only writes his Name and does not use to make the addition of his Office. Sir Rob. Sawyer Pray my Lord give me leave to be heard to this I think truly it is a weighty Objection for under Favour we say it must upon the Return here appear that they were legally committed before you can charge them with an Information I do not take Exceptions to the Warrant because it is subscribed by such Lords and they do not write themselves Lords of the Council they need not do that and the Return has averred that they are so But the Return ought to have been that it was by Order of the Privy Council and so it must be if they would shew my Lords to be legally committed that they were committed by Order of the Privy Council and not by such and such particular Persons Lords of the Privy Council so in the Case put by Mr. Iustice Allybone of a Commitment by your Lordship or any of the Judges it must be returned to be by such a Warrant by such a One Chief Iustice for that shews the Authority of the Person committing and then your Lordships Name to it indeed is enough without the Addition But if it does not appear by the Return that there was sufficient Authority in the Person to commit your Lordship cannot take it to be a Legal Commitment But now in this Case they could have no Authority to commit but in Council and this Return seems to make it done by them as particular Persons and that 's not a good Return with your Lordships favour upon which these Reverend and Noble Lords can be detained in Prison But what do they on the other side say to this Why we shall be heard to it anon but my Lord they very well know it would be too late for that Effect which we desire of our Motion and therefore we lay the Objections before you now in its proper time say we you ought not to read any Information against us because we are not legally here before the Court and sure that which was said by the Kings Councel that your Lordship may charge any One that you find here in Court which way soever he comes in cannot be legal Mr. Att. Gen. Who ever said so Sir Robert Sawyer I apprehended you said so Mr. Attorney or else you said nothing Mr. Att. Gen. Sir Robert Sawyer You of that side have a way of letting your selves in to say the same things over and over again and of making us to say what you please Sir Rob. Sawyer Truly I did apprehend you laid down that for Doctrine which I thought a very strange One for we say with your Lordships favour he that is in Court without a Legal process is not in Court so as to be charged with an Information S. Pemberton My Lord It is not the Body being found here that intitles the Court to proceed upon it but the person accused is to be brought in by Legal Process Then if we be not here by Legal Process the Information cannot be charged upon us and if we suffer it to be read it will be too late for us to make this Objection L. C. I. That you have all said over and over and they have given it an Answer Mr. Att. Gen. Pray Mr. Serjeant will you make an end you have repeated your Objection over and over I know not how often and will never be contented with our Answer Mr. I. Allyb. Sir Rob. Sawyer That which you said in Answer to the Case I put methinks does not answer it For if the Return be as good that it was by a Warrant from such an one Lord Chief Iustice as if my Lord Chief Iustice had added the Title of his Office to his own Name when he subscribed the Warrant Then this Return That this was done by such and such Lords of the Council must be as good as if they had added that to their own Names Sir Rob. Sawyer That is not our Objection Mr. Att. Gen. Your Objection has been heard and answered we pray the Information may be read Mr. Serj. Pemberton No we are not come to that yet Mr. I. Allyb. Pray would you have an Averment by the Lieutenant of the Tower in his Return to an Habeas Corpus that it was done by them in the Council-Chamber Mr. Finch My Lord The Difference is this with Submission a Commitment by Sir Rob. Wright Ch Justice is a good Commitment and a Return of that Nature were a good Return because he is Chief Justice all over
it also provided and enacted That if any person shall hereafter be Committed Restrained of his Liberty or suffer Imprisonment by the Order and Decree of any such Court of Star-Chamber or other Court aforesaid now or at any time hereafter having or pretending to have the same or like Iurisdiction Power or Authority to commit or imprison as aforesaid or by the Command or Warrant of the King's Majesty his heirs or Successors in their own Persons or by the Command or Warrant of the Council-Board or of any of the Lords or others of his Majesties Privy-Council that in every such Case every person so Committed Restrained of his Liberty or suffering Imprisonment upon demand Mr. Soll. Gen. That is all Your Lordship sees these several Distiâ—…ctions of the Style of Commitment Mr. Att. Gen. Now pray favour us a little My Lord I think these Gentlemen will not deny but that the Lords of the Council can commit I must confess they ask that which was pretty reasonable if the Case was as they would make it They would have my Lords the Bishops discharged because there is not a Return of a good Commitment and that stands upon this presumption that what is here said to be done by all these Lords at the end of whose Names this is added Lords of the Privy-Council was done by them out of Council which I suppose your Lordship will not presume but will take it that they did this as Lords of the Council in Council And no man can say but the Lords in Council can commit Mr. Soll. Gen. You may as well presume upon a Warrant made by my Lord Chief Iustice because it is not said where he did it and therefore he did it in Scotland Mr. Att. Gen. I say again unless your Lordship will presume that which is not to be presumed this must needs be a very good Return Mr. I. Allyb. Truly as Mr. Sollicitor says you may as well desire us to presume that my Lord Chief Iustice would commit a man in Ireland or Scotland I can see no imaginable difference Mr. Finch My Lord That which we pray is not that your Lordship would presume but that you would not presume but take the Return as 't is before you and then see whether it can be thought to be a Commitment by the Lords in Council Mr. S. Pemberton Pray my Lord spare us a little in this matter Here has been the Clause of a Statute read to you from whence Mr. Sollicitor would conclude that all Commitments by several sorts of persons there named are legal or else the Enumeration of the several sorts of Commitments signifies nothing to this purpose But I pray your Lordship would consider this that the very scope and end of that Act of Parliament is to relieve against illegal Commitments and Oppressions then the several Commitments therein named can never all be called legal so that that signifies nothing to our purpose My Lord they tell us we stand upon Presumption no we do not so we say your Lordship ought not to presume the One or the other but to judge upon what is before you but here is nothing before you but this Return of a Commitment of these Noble Persons my Lord the Arch-Bishop of Canterbury and the rest of the Bishops which is said to be by these particular Lords Now if your Lordship will please to give us time to look into it for this is an Exception we take at the Bar upon hearing the Return read we would shew the constant way has been quite otherwise than this Return makes it therefore we desire leave to satisfie your Lordship concerning the usual Form of Precedents and thereby it will appear that it ought to have been that they were committed by Order of the Privy Council and then he should have set forth the Warrant it self which would have shewn the Names of the Privy Councellors and he needed not to have put their Names in the Return as the particular Persons that committed them but now my Lord this does not appear to be an Order made in Council as it ought to be and the Return is that which is before you and you are to judge only upon what is before you L. C. Iust. So we do Mr. Iustice Allybone Pray Sir Robert Sawyer would the Saying of a Governour of the Tower in his Return to a Writ of Habeas Corpus alter the Nature of the Commitment Mr. Att. Gen. My Lord We are in your Lordships Judgment Mr. Iust. Allybone I say Brother Pemberton would any collateral Saying of the Lieutenant of the Tower alter the Nature of the thing his Return in this Case is onely an Inducement to the Warrant of Commitment and his Saying one way or t'other would neither vitiate nor mend the Commitment Mr Soll. Gen. Your Lordship cannot take notice of the Commitment but from the Warrant Mr. Pollexfen The Return is the Fact upon which you are to judge Mr. Iust. Powel Certainly we must judge of the Record and nothing else and the Return is the Record now being filed L. Ch. Iust. The Return is as certain I think as can be Mr. Soll. Gen. By the Return it appears the Bishops were committed by the Warrant of such and such Lords of the Council and that which is before you now is whether you will not intend it to be done by them in Council Mr. Iust. Powel We can intend nothing but must take the Return as ' t is Lord Chief Iust. The Warrant is good enough I think truly and so is the Return Mr. Pollexfen I think in all the Habeas Corpus's that have been since the King's return of Persons committed by the Council the Returns have been quite otherwise than this Return is We do all pretty well agree for ought I can perceive in these two things We do not deny but the Council Board has Power to commit they on the other side do not affirm that the Lords of the Council can commit out of Council Mr. Att. Gen. Yes they may as Justices of the Peace Mr. Pollexfen That is not pretended to be so here L. Ch. Iust. No no that is not the Case Mr. Pollexfen Then my Lord with submission I will compare it to any thing else of this nature I deny not but that the Council may commit but the Question is whether this Return of their Commitment be right Suppose there should be a Return to a Habeas Corpus that such a one was committed by Sir Robert Wright and three others by Name Justices of this Court for a Contempt without saying that it was done in Court this would be an ill Return although they had power in Court to commit for a Contempt yet it must appear that it was done in Court or it cannot be a good Return If I had thought or foreseen that such a Return would have been made I could easily have made out our Objection but we could not foretell what they would return and therefore
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
Lord Devonshire that was an express Breach of the Peace tho' it was debated and disputed then so that I take it these Noble Lords cannot be charged with this Information because they do not come in by Legal Process and unless they can shew me any Case where a Peer did ever come in upon such a Commitment and answered to an Information upon that Commitment it must certainly be allowed not to be the Legal Course though if such a Precedent could be shewn that past sub Silentio without debate or solemn determination that would not do nor could bind the rest of the Peers If one man would lose a particular Benefit he has all the whole Body must not lose it and the benefit is not small of Time to make his Defence of Imparling of taking a Copy of the Indictment and preparing himself to plead as his Case will bear and indeed a common person has used to have these priviledges tho in some Cases of late they have taken the other Course and if a Capias went out which We say cannot go against a Lord and the Party were brought in he was to answer immediately Now my Lord I take it That the Priviledges of Peers is in all times the same with the Parliamentary Priviledge in Parliament time which reacheth to Informations as well as other Actions My Lord Cooke is express in this point in the 4. Instit. 25. If that Objection should hold good that every Information being Contra Pacem that should be a Breach of the Peace then as I said before priviledge will hold in no Information which is contrary to that and all our other Books 't is only such a Breach of the Peace as for which security of the Peace may be required But further that this is a Priviledge enjoyed by the Peers Spiritual as well as Temporal I suppose will not be denied for I think they will not question but that the Bishops and Abbots that were Lords of Parliament were Peers and we find in our Books when the Court has been moved for a Capias against an Abbot if he were a Mitred Abbot and sat in the Lords House it was always said that no such Process ought to go and so it is in the case of Bishops but indeed for other Noble Men the difference is this Where it does not appear upon Record that they are Lords of Parliament there the Courts have put them to bring their Writs of priviledge but where it does appear upon Record that they are Peers the Court is to allow and take notice of their priviledge and there needs no such Writ Now that the Parliament priviledge and the priviledge of Peers as to their persons is the same appears by the form of the Writ in the Register fol. 287. Fitz Herb. Nat. Brev. 247. The Words of the Writ are these That if such a one be Sued at the Suit of another the Writ commands that a Peer out of Parliament time should have the same priviledge with those summoned by the KING to the Parliament and I know not any difference that can be put between them and it cannot be denied that all Informations whatsoever unless such as are for Breaches of the Peace for which Surety of the Peace may be required are under the Controul of the Parliament priviledge so that upon these grounds I do press that my Lords the Bishops may be discharged If there be any Information against us we are ready to enter our Appearance to answer it according to the course of the Court but if the Information be for no other thing than what is contained in the Warrant of Commitment then their persons ought to be priviledged from Commitment Mr. Pollixfen If your Lordship please to take it all together you will find it a case very well worth your consideration it being the case of all the Peerage of England Mr. Attor Gen. My Lord these Gentlemen have taken a great deal of Liberty and spent much of your time in making long Arguments and after all truly I do not know where to have them nor can understand what they would be at it seems they agree that for Treason Felony and Breach of the Peace a Peer may be Committed Ld. Ch. Iust. That is say they such a Breach of the Peace as for which Surety of the Peace may be required Mr. Attor Gen. Then all the Learning they have been pleased to favour us with is at an end for if here be any thing charged upon the Bishops for which Sureties of the Peace may be required then this is a good Commitment Ld. Ch. Iust. That they must agree upon their own Arguments Mr. Attor Gen. Can then any man in the world say that a Libel does not require Sureties of the Peace for we must now take it as it is here upon this Return How my Lords the Bishops will clear themselves of it is a Question for another time but the Warrant says they were Commited for Contriving Framing and Publishing a Seditious Libel against His Majesty and His Government Is there a greater Misdemeanour Or is there any thing on this side a Capital Crime that is a greater Offence Is there any thing that does so tread upon the Heels of a Capital Offence and comes so near the greatest of Crimes that can be Committed against the Government Not to enlarge at this time upon what the Consequences of such things may be Is there a greater Breach of the Peace than such Seditious Practices No doubt any man may be Committed for it and may be bound to find sureties for his good Behaviour Sir Robert Sawyer I say Sureties of the Peace not of the good Behaviour Mr. Soll. Gen. Pray my Lord would you consider where we are we are going towards France I think or some farther Country they have set us out to Sea and I do not see after this rate when we shall come to Land certainly these Gentlemen are mightily out of the way and would fain have us so too we are here upon a single Question as this Case stands before your Lordship upon the Return here is a Libel a Seditious Libel said to be contrived made and published against the KING and His Government by these Noble Lords the Prisoners this is the Accusation suppose this be true that is to be proved hereafter I hope they are innocent and will prove themselves so but suppose it to be true that they have made a seditious Libel against the King and His Government will any man say that this is not done Vi Armis This is a Libel with a witness nay two or three degrees more may carry it to High Treason and all the Informations that were exhibited by Sir Robert Sawyer when he was Attorney General and he exhibited a great many for Libels constantly these Words were in Vi Armis contra Pacem Bishop of Peterborough Was it so in your own Case Mr. Sollicitor Mr. Soll. Gen. Yes it was so
in 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
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
cannot forbear observing in the first Place somewhat that these Gentlemen have offered at who are now inveighing against the heat of the Times when a great part of that heat we know who were the Inflamers of but what is all this to the purpose The Question is barely this Whether when a Man is brought in Custody into this Court and Charged with an Information he shall not by the Course of the Court be compelled to Plead presently Sir Robert Sawyer To Indictments for Treason and Felony he shall be Compelled to Plead presently but not to an Information for Misdemeanours Mr. Just. Powel It seems to me very hard he should Mr. Attor Gen. Sir there are many things that seem hard in Law but yet when all is done the Judges cannot alter the Law 't is a hard Case that a Man that is tryed for his Life for Treason or Felony cannot have a Copy of his Indictment cannot have Council cannot have his Witnesses sworn but this has been long practiced and the usage is grown to a Law and from time to time it hath been so taken for Law it cannot be altered without a new Law made as it hath been heretofore so it must be now till a greater Authority alter it and so as to the Case here at present if it were a new Case and it was the first Instance I must Confess I think I should not press it but if this be the Constant Practice of the Court and if these Gentlemen that now oppose it some of them Ministerially some of them Judicially have themselves Established this Practice they have no reason to wonder that we follow them in it we do not blame them for what they do now for Men when they are of Council may be permitted to argue for their Client contrary to their former Opinions but if these things by their procurement have done thus before surely without Offence we may pray the like may be gone now 'T is our duty on behalf of the King to desire that he may have Right done him as well as they on the behalf of my Lords the Bishops and for the usage to Cite Precedents were endless especially of late times and these Gentlemen know them all very well for they were some of them Parties to them themselves and we can do no more nor need than to put them in mind of their own doings whether it was so before their time or not it concerns them to make out and retract their own Errors but in our observation if ever this was pressed or insisted upon on the Kings behalf this Course has always been persued Sir Robert Sawyer For a Precedent my Lord there is the Case of my Lord Hollis where there was given time after time Mr. Soll. Gen. That was only time to argue the Plea to the Jurisdiction of the Court. Mr. Just. Powel Mr. Solli have you ever known it contested and upon Debate so Ruled in an Information for a Misdemeanour as this Case is Mr. Sol. Gen. If you please to ask Sir Samuel Astry he will inform you how the Course has been L. C. Iust. What say you Sir Samuel Astry Sir Sam. Astry My Lord when I came into this Place there was an Ancient Gentleman that had been long a Clerk in the Office. L. C. Iust. How many years is it since you came into this Office Sir Sam. Astry About a dozen years I think my Lord and he sat in this place where Mr. Harcourt does now he was always accounted a Loyal Honest and Intelligent Man that is Mr. Waterhouse who is now alive and when I came into my Office I took my Instructions in a great measure from him and asked him what the Course of the Court was in such Cases which I my self did not understand for tho' I had been an Attorney Twenty years yet it was on the other side the Civil side and tho' I knew some things of my own knowledge yet I did not so well know the whole practice of the Court and particularly I asked him what was the Course of the Court in this Case that is now in Question and he told me that in all his time and experience if a Man appears upon a Recognizance or was a Person in Custody or appeared in propria persona as a person Priviledged he ought to Plead at the first instance and according to that practice when Sir Robert Sawyer was Attorney-General it was the constant practice and I am sure he knows it is no new thing Sir Rob. Saw. But upon what Informations Sir Samuel Astry were they Informations upon Misdemeanors Sir Sam. Astry Yes several Sir Rob. Saw. But was there not Process taken out first to call the Party in Sir Sam. Astry Yes where Process was never taken out Mr. Att. Gen. For how long time is this that you speak of your own knowledge Sir Samuel Sir Sam. Astry About a dozen years Mr. Serj. Pemb. It was never done till very lately but after the Party was in Contempt for not appearing Mr. Sol. Gen. I would ask you Sir Samuel Astry one Question Was the usual Process of Subpoena first taken out for Mr. Serjeant Pemberton says it was do you find any Warrant for such a difference as that Mr. Serj. Pemb. Do you find any such Case as this is Mr. Sol. Gen. Nay pray Mr. Serjeant give us your favour and let us ask our Questions according to your own Doctrine How do you find the Practice to have been as to that distinction they have made Sir Sam. Astry Sir I would be very loath to inlarge the Precedents of the Crown Office furthar than the truth is I tell you whence I took my Instructions from Mr. Waterhouse who was an Ancient Clerk in the Office he has been in that Office Sixty years and the Instructions I took from him were that this was the Practice all his time and it has been asserted all my time it has been often contested I confess and Mr. Pollixfen has always opposed it and moved against it but it has been always ruled against him I know it was against his Judgment but the Court always over-ruled it Sir Rob. Saw. Sir Samuel Astry can you give any one Precedent before you came into this Office Sir Sam. Astry Sir I can go no farther than this that I have told you what Information I received from him Sir Rob. Saw. What is all this but a Certificate from Mr. Waterhouse L. C. Iust. We can be informed no otherways than by Certificate from the old Clerks of the Office. Mr. Serj. Pemb. Alas he is a Child and not fit to do any thing Mr. Pollixf We all know Mr. Waterhouse very well he is a very weak Man and always was so and there is no depending upon any thing that he says Mr. Sol. Gen. Pray my Lord will you hear us a little for the King. The Bishop of Peterborough whispering with Sir Rob. Sawyer Mr. Sollicitor said to him My Lord you had
better look another way and look towards the Court for there your business lies L. Ch. Iust. Well Mr. Sollicitor What say you Mr. Soll. Gen. My Lord it appears plainly that the King is in possession of this Priviledge and has been so for these dozen Years for so long the Justice of the Kingdom towards all the Subjects hath run in all the instances of it in this Channel and tho' it has been contested as often as Mr. Pollixfen has been of Counsel for the Defendant in such Cases it has always been ruled against him he indeed has made his continual Claims Sir Samuel Astry saies he has raised the Dust and made a Hue and Cry but it has always gone against him And I would ask the rest of you Gentlemen that are of Council for my Lords the Bishops for some or one of you I am sure has been concerned in every Information that has been exhibited in this Court for this nine or ten Years last past I would ask you whether in any Information that you have been concerned in if the Party being brought in by Process insisted to have time and an Imparlance it was ever granted him I know you will not say it ever was why then should there be more done in this Case than has been done in all other Cases this ten Years 'T is not sufficient to make Declarations against the unreasonableness of the Practice for it is but what you have done your selves and insisted upon for Law and all those men that upon Informations have been compelled to plead have had Injury done them or else these Lords will have no Injury by the Court 's taking the same Course It is true my Lords the Bishops are Peers and here are Seven of them and Seven Lords go a great way they make a Committee I think in the House of Peers and a mighty matter is made of it that this is the Case of so many Lords But will you alter the Course of the Court because Seven of my Lords the Bishops are concerned in it and they make a mighty stir about the Reasonableness of the thing How can it be believed that the Law will not give a man time to make his Defence They agree themselves that if it were in the Case of Life and Death they must plead presently and doth not the same Reason hold and may not an Argument be drawn à fortiori in the Case of a Misdemeanour If I am not to have time when I plead for my Life there is less Reason I should have time to answer a Trespass But my Lord 't is not Reason that weighs in the Case 't is the Course of the Court which is the Law of the Court that we are contending for and what is there in the Case that should require so much time for my Lords the Bishops to plead to it It is charged in the Information that these Noble Prelates did make a Libel which was produced by them and published in the Kings presence they can easily tell whether thâ—… have done this or not done it what can they plead but the general Issue They talk of special matter to be pleaded but can they shew any more that they can say than what any poor ordinary Countryman if he were here to plead to an Information could say that is whether he was Guilty or not Guilty These Lords can tell whether it be true that they did publish the Paper laid in the Information and then your Lordship will tell them what will be the Consequences of that Publication in point of Law. We say all this was done at Westminster there the Scene is laid and it is not an Information for an old stale thing done a great while ago but a thing that was done yesterday and a thing notorious enough their contesting with the King about his Declaration of Indulgence And as to what Mr. Finch has said That this is a Novel Invention and a Trick to rob a man of his just Defence sure he forgets who it is that taught us the Trick if it be a Trick we have learnt it from those that trick'd before us and what is it that these Lords do desire they would have an Impaâ—… till Michaelmas Term does or can your Lordship think they ask than which is reasonable to have six Months time to plead not Guilty to an Information for a Libel and when so many men have been denyed it formerly upon the instigation of those very Gentlemen that now press so very hard to have it granted sure they must expect to be denyed it too and all this while these Lords lye under this accusation which is not so trivial a matter as some would make it I believe my Lords the Bishops have a desire to be cleared I suppose it is only their Council that desire to delay it upon what ground I know not I believe they themselves would be glad to remove the imputation which would be best done by a Tryal and the sooner the better If they have a mind to justifie themselves this is the readiest course for it and they may do it presently by Pleading Not Guilty My Lord I know I am in a great Auditory and abundance of your Lordships time has been taken up already I press it therefore for the sake of the King and for the sake of my Lords the Bishops we shall else have all â—…ang in suspence and hang in the Air for six Months longer therefore let the matter be put upon a fair Issue so as it may come to a speedy Determination I am sure is these Lords be innocent to day they will be innocent to morrow and if it were my own case I would desire to have it Tryed as speedily as I could and therefore I pray they may plead immediately Mr. I. Powel Mr. Soll. What do you say to the Difference that was taken between a person that was brought in Custody at the first instance where there is no contempt to the Process of the Court and one that comes in here by Capias upon default of appearing at the Summons Mr. Finch My Lord If I apprehend them aright they give us more than we did ask for Mr. Sollicitor has laid it down as a Rule that if a Man is taken upon a Capias in a Mean Process he shall have no Imparlance Mr. Soll. Gen. No you are greatly mistaken Sir and I pray don't lay down Rules for me Mr. Finch If I am Sir I beg your pardon but this I am sure of if a Venire Fac. goes out which is in the nature of a Subpoena and the party appear to it that being the first time he could come into Court you cannot force him to plead to an Information but he has an Imparlance of Course Mr. I. Powell Methinks it seems very reasonable that this forcing a Man to plead presently should be only a punishment for a Contempt of the Court and pray were my Lords the Bishops in contempt to
some slight Answer but then here are these two persons Mr. Harcourt and Mr. Sillyard and the one has been a Clerk these sixteen or seventeen years and the other has known the Office thirty years though there were not heretofore so many Informations of this Nature and Kind as now of late but still they say that a person that comes in upon a Commitment or a Recognizance shall never have any Imparlance Mr. Sol. Gen. Can they give any one Instance that has any the least shaddow to the contrary Mr. Pollixfen My Lord if we had time we hope we should be able to satisfie you in this Matter Mr. Sol. Gen. You have had time enough to prepare your selves for this Question if you had thought you could do any good in it L. C. I. Would the Course of the Court be otherwise to Morrow then it is to Day we have taken all the Care we can to be satisfied in this Matter and we will take care that the Lords the Bishops shall have all Justice done them nay they shall have all the Favour by my consent that can be shewn them without doing wrong to my Master the King but truly I cannot depart from the Course of the Court in this Matter if the King's Council press it Mr. Att. Gen. My Lord we must pray your Judgment in it and your Direction that they may plead L. C. I. Truly I think they must Plead to the Information Mr. Att. Gen. Sir Samuel Astry pray ask My Lords whether they be Guilty or Not Guilty Then his Grace the Lord Archbishop of Canterbury stood up and offered a Paper to the Court. Archbish. of Cant. My Lord I tender here a short Plea a very short one on behalf of my self and my Brethren the other Defendants and I humbly desire the Court will admit of this Plea. L. C. I. If it please your Grace it should have been in Parchment Mr. Sol. Gen. What is that my Lord offers to the Court L. C. I. We will see what it is presently Mr. Sollicitor Bish. of Peter I pray My Lord that the Plea may be Read. M. Sol. Gen. But not received Mr. Att. Gen. No we desire to know what it is first Sir Rob. Sawyer Mr. Attorney if they will Plead the Court sure is obliged to receive it L. C. I. If it is a Plea your Grace will stand by it L. Archbish. of Cant. We will all stand by it my Lord it is subscribed by our Council and we pray it may be admitted by the Court. Mr. S. Pemb. I hope the Court will not deny to receive a special Plea if we offer one L. C. I. Brother let us hear what it is Mr. Sol. Gen. Read it if you please but not receive it Clerk Reads the Plea which in English is thus The BISHOPS PLEA AND the aforesaid William Archbishop of Canterbury William Bishop of St. Asaph Francis Bishop of Ely John Bishop of Chicester Thomas Bishop of Bath and Wells Thomas Bishop of Peterburgh and Jonathan Bishop of Bristol being present here in Court in their own Persons pray Oyer of the Information aforesaid and it is Read to them which being Read and heard by them the said Archbishop and Bishops The said Archbishop and Bishops say that they are Peers of this Kingdom of England and Lords of Parliament and each of them is one of the Peers of this Kingdom of England and a Lord of the Parliament and that they being as before is manifest Peers of this Kingdom of England and Lords of Parliament ought not to be compelled to answer instantly for the Misdemeanour aforesaid mentioned in the said Information exhibited here against them in this Court but they ought to be required to appear by due Process in Law issuing out of this Court hâ—…e upon the Information aforesaid and upon their Appearance to have a Copy of the said Information exhibited against them and reasonable time to imparl thereupon and to advise with Council Learned in the Law concerning their Defence in that behalf before they be compelled to answer the said Information Whereupon for that the said Archbishop and Bishops were Imprisoned and by Writ of our Lord the King of Habeas Corpus directed to the Lieutenant of the Tower of London are now brought here in Custody without any Process upon the Information aforesaid issued against them and without having any Copy of the said Information or any time given them to imparl or be advised They pray Judgment and the Priviledge of Peers of this Kingdom in this Case to be allowed them and that They the said Archbishop and Bishops may not be compelled instantly to answer the Information aforesaid c. Rob. Sawyer Hen. Finch Hen. Pollixfen Mr. Att. Gen. My Lord with your Lordship's favour this in an ordinary Person 's Case would perhaps be thought not fair dealing or that which it being in the Case of these Reverend Prelates I shall not now name to make all this Debate and Stir in a Point of this nature to take the Judgment of the Court after three or four hours arguing and when the Opinion of the Court has been delivered then to put in a Plea to the Jurisdiction of the Court Sir Rob. Sawyer It is no such Plea. Mr. Att. Gen. It is so in effect but certainly it is such an Irregularity and such an unfair way of Proceeding as would not be endured in an ordinary Case and I hope you will give so little countenance to it as to reject it and make them Plead according to the usual course and way of proceedings certainly a Plea of this nature after so long an Argument would be reckoned nothing but a trick Mr. Serj. Pemb. We hope the Court and you are not of one mind Mr. Attorney in this matter we desire the Court to receive the Plea. Mr. Att. Gen. With submission the Court is not bound to receive Pleas that are put in purely for delay as this is for the Judgment of the Court has been already given in the very matter of this Plea and for rejecting a Plea it is done every day if a Man puts in a mere trifling dilatory Plea the Court may reject it Does this Plea contain any thing in it but what has been argued and debated pro con and setled by the Court already If they will put in any Plea in chief they may but such a Plea as this I hope shall not have so much countenance as to be receiv'd by the Court. Mr. Pollixfen Do you Demur to it if you please Mr. Attorney we will joyn in Demurrer with you Mr. Att. Gen. No there will be no need of that Mr. Sol. Gen. Surely the Court will never give so much Countenance to it as to receive it Mr. Finch If you will please either to Reply or Demur Mr. Sollicitor we are here to maintain the Plea. Mr. Soll. Gen. If you were here you would say the same thing that we do My Lord this Plea is That
my Lord the Bishops are not bound to Plead instantly so that 't is not a Question Whether they ought to Answer or not to Answer but whether they ought to Answer immediately and what do they say more They would have an Imparlance and time to consult with their Councel what they shall Plead which is all but one and the same thing and what is the reason they give for this They induce it thus These Noble Persons are Peers of the Realm and so ought not to be compelled to Plead immediately this if I mistake not is the sum of their Plea. Now pray my Lord what sort of Plea is this It is not a Plea to the Jurisdiction of the Court tho' it do in a sort decline the Justice of the Court Is it a Plea in Abatement No it is not for it is only to gain time and do they now offer any thing more for themselves than what was said by their Council before Only That we are Peers of the Realm and that such is the Priviledge of Peers that they ought to have an Imparlance and time to Plead and that they ought not to answer presently My Lord this Matter hath been long agitated in the Court already your Lordship and the Court have given your Judgments and we know your Lordship and the Court will not admit of Tricks to delay the Kings Causes we all know the Term is a short Term and what I said in the beginning upon this matter I say again it is the Interest and for the Honour of my Lords the Bishops if they understand their own Interest and value their Honour to have this Cause tryed as soon as may be but this trifling and tricking is only for delay For what issue can be taken upon this Plea Certainly none And if we should Demurr what will be the end of that But only to get time to slip over the Term. If there were any thing worth the considering in this Plea and that had not been already debated and setled then it might concern us to give some Answer to it but we have spent three hours by my Watch in the Dispute and the Matter having been over-ruled already it is time to have an end of it sure the Court will never be so treated by these Persons that are of Councel for my Lords the Bishops for it cannot be thought that my Lords the Bishops do it of themselves and whether the Court will be so served we submit to your Lordship Certainly you will not receive such a Plea as this especially it being in Paper you will never countenance such a Practice so far as to give these Lords time to trifle with the Court if any such thing as a Plea be tender'd to the Court it ought to be in Parchment and if they would have an Imparlance there ought to have been an entry of a Petit Licentiam inter loquendi upon the Roll but not such a Plea as this for this in effect is no more then desiring an Imparlance which if it be granted of course upon such a Prayer entred upon the Roll you take it of course but if it be not of course you cannot come in by way of Plea it must be by suggestion upon the Roll and a Conceditur entred if this be admitted as a Precedent every Man hereafter that comes in upon an Information will take advantage of it and plead such a Plea as this and if you grant an Imparlance in this Case upon this Plea you must grant an Imparlance in every Case certainly the Law is not to be altered the Methods of Proceedings ought to be the same in every Case And I hope you will not make a particular Rule in the Case of my Lords the Bishops without a special Reason for it Mr. Serj. Pemb. We put in this Plea my Lord and are ready to abide by it and we say that according to the course of the Court it ought to be received Mr. Att. Gen. No but good Mr. Serjeant 't is in the discretion of the Court whether they will receive it or not for the matter has been in debate already and has receiv'd a determination the Court has over-ruled them in this very Point already and there is no more in this Plea than was in the Argument before and therefore it ought to be rejected as a frivolous Plea. Mr. Soll. Gen. Here is a Plea offered in Writing and in Paper the Court sees what it is and I hope you will give no countenance to it Mr. Pollixfen I do hope my Lord you will not judge this as a frivolous Plea I think our Case is such that you will not do that if you think fit you may over-rule it but I hope you will not refuse it Mr. Soll. Gen. The Court will certainly reject a frivolous Plea and they may do it Mr. Pollixfen But Mr. Solliciter I hope the Court will consider of it whether it be a frivolous Plea or not it is true there has been a Debate about the course of the Court and there has been an Examination of the Clerk of the Office and the Court has gone upon his Certificate but yet still perhaps it may remain in doubt and it being a Question of such a consequence as this it may very well deserve the Court's Consideration there never was a Judicial Settlement of it that I know of yet nor do I know any way of having it satisfactorily setled but by the Judgment of the Court entred upon Record here we offer a Plea that contains the matter in debate and this Plea will appear upon Record and if upon consideration of the Plea your Lordship shall think fit to over-rule it and be of Opinion against the Plea then will you by your Resolution in a Judicial way settle the Question that has hitherto been in Controversy L. C. I. Mr. Pollixfen I would ask you whether the Council have dealt ingeniously with the Court or no in this matter after four hours debate and the Opinion of the Court delivered to come and sum up all the Arguments in such a Plea as this and so put us upon debating it over again Mr. Pollixfen My Lord certainly this has been done before without Offence after we had moved for a thing which was denied upon Motion it is no such great dis-respect to the Court with submission to put the same Matter into a Plea for the Judicial Opinion of the Court. Sir Ro. Sawyer That without all Question has been done a great many times Mr. Sol. Gen. How many times have you been accused of playing Tricks Sir Robert Sawyer Sir Rob. Sawyer Not so many as you Mr. Sollicitor Mr. Sol. Gen. I don't ask it as if I questioned it for I assure you I don't doubt it of your part at all L. C. I. Pray Gentlemen don't fall out with one another at the Bar we have had time enough spent already Mr. Pollixfen Truly My Lord I would not trick with the Court in any
Case nor on the other side would I be wanting to Advise and do for my Client what I am able and lawfully may we have laboured all we could to get time for my Lords the Bishops to Imparle to this Information and we have been the more earnest in it because it concerns us who attends this Bar to take what Care we can that the Course of the Court may be observed but as for this Matter we suppose this Practice of the Court is not in Law a good Practice Now what way in the World has any man to bring this so in question as to have a Judicial Resolution of the Court about it but by such a Plea We take it that it is usual and legal for us to have an Imparlance and a man would Imparle but the Court upon Motion refused to give him an Imparlance Is it not think you very fit for the party to have this Judicially entered upon Record where all this Matter will appear and the party may be relieved by writ of Error if the Judgment of the Court should be wrong but truly I cannot see how the Court can refuse the Plea for if so be a Plea be pleaded they have their liberty to Answer it on the other side by a Replication or else to Demur and the Judgment of the Court may be had upon it one way or other but the Court will never go about to hinder any man from pleading where he may plead by Law here is a Plea put in and the Court sure will take no notice what is the Matter of the Plea till the other party have either replied or demurred the same thing may happen in any other Plea that is pleaded and the party will-be without Remedy upon a writ of Error because the Plea being Rejected there does nothing appear upon Record truly for the Court to reject and refuse this Plea would be as hard as the refusing of the Imparlance and we know no way we have to help our selves Mr. Sol. Gen. You might have entered your Suggestion for an Imparlance upon the Roll and then it would have appeared upon Record and if the Court had unjustly denied it you you would have had the benefit of that Suggestion elsewhere Truly My Lord I think if any thing be tricking this is for it is plainly ill pleading Mr. Finch Then pray demur to it Mr. Sol. Gen. No Sir 't is Fencing with the Court and that the Court won't suffer it is only to delay and if we should demur then there must be time for Arguing and what is the Question after all but whether you would be of the same Opinion to Morrow that you are to Day Sir Rob. Sawyer I would put Mr. Sollicitor in mind of Fitz Harris's Case which he knows very well he put it in a Plea and we for the King desired it might not be received but the Court gave him time to put it into Form and I was fain to joyn in Demurrer presently and so may these Gentlemen do if they please Mr. Soll. Gen. Yes Sir Robert Sawyer I do know the Case of Fitz Harris very well I was assigned of Councel by the Court for him we were four of us and there was a Plea put in but no such Plea as this there was an Indictment of High Treason against him in which Case it is agreed on all hands that the party must answer presently but because he suggested here at the Bar says he I have Matter to plead to the Jurisdiction of the Court and shewed what it was I was Impeached before the Lords in Parliament for Treason for the same Matter of which I am here Accused The Court did give him time to put this into Form and we were assigned his Council to draw it up for him and accordingly we did put that Matter into a Plea that we were here Indicted for one and the same Treason for which we were Impeached in Parliament and that that Impeachment was still depending and so we rested in the Judgment of the Court whether we should be put to Answer it here this was a Plea that carried something of weight in it and not such a trifling one as this It is true Sir Robert Sawyer who was then Attorney General did press the Court to over-rule it immediately but it being a matter of some Importance the Court would not do that but had it argued solemnly by Council on both sides and at last there was the Opinion of three Judges against one that the Plea was no good Plea But what is that to such a trifling Plea as this Mr. Att. Gen. Pray my Lord favour me a few words about that Case of Mr. Fitz Harris it is true there was a Plea put in and it is true also that that which brought that Plea to be argued was the Demurrer that was put in by Sir Robert Sawyer who was so zealous and hasty in the matter that because the Court did not presently over-rule the Plea as he desired he immediately Demurred before the rest of the King's Council could offer at any thing about it and thereupon it was put to the Judgment of the Court and no doubt must be argued and spoke to on both sides but where Pleas are really in abuse of the Court the Court never gives any Countenance to them Nay truly I have known another Course taken I am unwilling to mention a Case that hapned much about that time too in this Court because of that regard I have to my Lords the Bishops but Sir Robert Sawyer remembers it very well I am sure it was the Case of one Whitaker who for a thing like this putting in a trifling Plea not only had his Plea rejected but something else was ordered I could shew the Precedent but that I am more tender than to press it in this Case because there the Court ordered an Attachment to go against him but I will put these Gentlemen in mind of another Case and that is the Case of a Peer too it is the Case of my Lord Delameere which they cannot but remember it being in the highest Case a Case of Treason when my Lord Delameere was Arraigned and to be Tryed for High Treason he put in a Plea before my Lord Chancellor who was then High Steward and Sir Robert Sawyer who was then Attorney General prayed the Lord Steward and the Peers to reject it and the Court did reject it as we hope the Court will do this and would never so far delay Justice as to admit of a Plea that carried no Colour in it and there was no Demurrer put into the Plea but it was absolutely refused My Lord in this Case we have had the Judgment of the Court already and therefore we must now desire that this Plea may be rejected Mr. Soll. Gen. My Lord we have now gone out of the way far enough already it is time for us to return and bring the Case into its due methods We pray
say it shall be this day fortnight and let there be a Jury according to the usual course Sir Rob. Sawyer We pray it may be in the presence of the Attorneys or Sollicitors on both sides L. C. I. What is the usual coâ—…se Sir Samuel Astry Do you use to return twenty four or forty eight and then strike out twelve a piece which I perceive they desire for the Defendants Sir Sam. Astry My Lord the course is both ways and then it may be as your Lordship and the Court will please to order it L. C. I. Then take forty eight that is the fairest Mr. Att. Gen. We agree to it we desire nothing but a fair Jury Sir Rob. Sawyer Nor we neither try it when you will. L. C. I. Take a Recognizance of his Grace my Lord of Canterbury in 200 l. and the rest of my Lords in 100 l. a piece Mr. Att. Gen. What your Lordship pleases for that we submit to it Clerk. My Lord of Canterbury your Grace acknowledges to owe unto our Soveraign Lord the King the sum of 200 l. upon condition that your Grace shall appear in this Court on this day fortnight and so from day to day till you shall be discharged by the Court and not to depart without leave of the Court. Is your Grace contented A. B. C. I do acknowledge it Clerk. My Lord Bishop of St. Asaph you acknowledge to owe unto our Soveraign Lord the King the sum of 100 l. upon condition that your Lordship shall appear in this Court on this day fortnight and so from day to day until you shall be discharged by the Court and not to depart without leave of the Court. Is your Lordship contented Bish. of St. Asaph I do acknowledge it The like Recognizances were taken of all the rest of the Bishops and then the Court arose De Termino Sanctae Trinitatis Anno Regni Jacobi Secandi Regis Quarto In Banco Regis Die Veneris vicesimo nono die Junii 1688. in eod ' Term. Being the Feast of St. PETER and St. PAUL Dominus Rex versus Archiep. Cantuar. al. Sir Robert Wright Lord Chief Justice Mr. Justice Holloway Mr. Justice Powell Mr. Justice Allybone Judges Clerk. CRyer make Proclamation thrice Cryer Oyes Oyes Oyes Our Sovereign Lord the King streightly charges and commands every one to keep silence upon pain of Imprisonment Cl. of the Cr. Call the Defendents Cryer William Lord Archbishop of Canterbury Archbish. Here. Cryer William Lord Bishop of St. Asaph Bish. St. Asaph Here. And so the rest of the Bishops were called and answered severally Clerk. Gardez votres Challenges Swear Sir Roger Langley Cryer Take the Book Sir Roger. You shall well and truly try this Issue between our Sovereign Lord the King and William Lord Archbishop of Canterbury and others according to your Evidence So help you God. The same Oath was administred to all the Jury whose Names follow viz. Sir Roger Langley Barr. Sir William Hill Knt. Roger Iennings Esq Thomas Harriot Esq Ieoffery Nightingale Esq William Withers Esq William Avery Esq Thomas Austin Esq Nicholas Grice Esq Michael Arnold Esq Thomas Done Esq Richard Shoreditch Esq Clerk. You Gentlemen of the Jury who are sworn hearken to the Record Sir Thomas Powis Knight His Majesty's Attorney-General has exhibited an Information which does set forth as followeth ff MEmorandum That Sir Thomas Powys Knt. Attorney-General of our Lord the King who for our said Lord the King in this behalf prosecutes came here in his own person into the Court of our said Lord the King before the King himself at Westminster on Friday next after the morrow of the Holy Trinity in this Term and on the behalf of our said Lord the King giveth the Court here to understand and be informed That our said Lord the King out of his signal Clemency and gracious intention towards his Subjects of his Kingdom of England by his Royal Prerogative on the fourth day of April in the third year of the Reign of our said Lord the King at Westminster in the Country of Middlesex did publish his Royal Declaration entituled His Majesty's Gracious Declaration to all his Loving Subjects for Liberty of Conscience bearing date the same day and year sealed with the Great Seal of England in which Declaration is contained JAMES R. proâ—…t in the first Declaration before recited And the said Attorney-General of our said Lord the King on behalf of our said Lord the King further giveth the Court here to understand and be informed That afterwards to wit on the twenty-seventh day of April in the fourth year of the Reign of our said Lord the King at Westminster aforesaid in the County of Middlesex aforesaid our-said Lord the King out of his like Clemency and gracious intention towards his Subjects of his Kingdom of England by his Royal Prerogative did publish his other Royal Declaration entituled His Majesty's Gracious Declaration bearing date the same day and year last mentioned sealed with his Great Seal of England in which Declaration is contained JAMES R. Our Conduct has been such c. prout in the second Declaration before recited Which said Royal Declaration of our said Lord the King last mentioned our said Lord the King afterwards to wit on the thirtieth day of April in the fourth year of his Reign aforesaid at Westminster aforesaid in the County of Middlesex aforesaid did cause to be printed and published throughout all England and for the more solemn Declaring Notification and Manifestation of his Royal Grace Favour and Bounty towards all his Leige-people specified in the Declaration last mentioned afterwards to wit on the fourth day of May in the fourth year of his Reign at Westminster aforesaid in the County of Middlesex aforesaid our said Lord the King in due manner did Order as followeth At the Court at Whitehall the Fourth of May 1688. By the King 's most Excellent Majesty and the Lords of His Majesty's most Honourable Privy-Council IT is this day Ordered by His Majesty in Council That His Majesties late Gracious Declaration bearing date the Twenty Seventh of April last be read at the usual time of Divine Service upon the Twentieth and Twenty Seventh of this Month in all Churches and Chappels within the Cities of London and Westminster and Ten Miles thereabout And upon the Third and Tenth of Iune next in all other Churches and Chappels throughout this Kingdom And it is hereby further Ordered That the Right Reverend the Bishops cause the said Declaration to be sent and distributed throughout their several and respective Diocesses to be read accordingly W m. Bridgeman And further the said Attorney-General of our said Lord the King on behalf of our said Lord the King giveth the Court here to understand and be informed That after the making of the said Order to wit on the eighteenth day of May in the fourth year of the Reign of our said Lord the King at Westminster aforesaid in the County of Middlesex
mistake he own'd a Letter that he had writ to the Bishop of Oxford to be his Hand-writing and by comparison of this with that says he I take this to be his Hand-writing Mr. Brooks That is my meaning my Lord. Mr. Sol. Gen. Pray speak out and tell us what are the reasons that makes you say you believe this to be the Bishop of Ely's Writing Mr. Brooks Because it resembles a Letter that I have by me of his writing to the Bishop of Oxford Mr. Sol. Gen. And you say he own'd that Letter to be his Mr. Brooks My Lord Bishop of Oxford did answer it and I waited upon the Bishop of Ely with the Answer and he did own it Sir Geo. Treby How did he own it Sir Mr. Brooks I had some Communication with my Lord of Ely about the substance of that Letter and therefore I apprehended he own'd it Mr. Iust. Powell That 's a strange Inference Mr. Sollicitor to prove a man's Hand Mr. Att. Gen. We have more Evidence but let this go as far as it can Mr. Serj. Pemberton Certainly my Lord you will never suffer such a Witness as this L. C. Iust. Brother Pemberton I suppose they can prove it otherwise or else this is not Evidence Mr. Iust. Powell So they had need for it is a strange Inference of Mr. Sollicitor that this is a Proof of my Lord of Ely's Hand-writing Mr. Iust. Holloway The Bishop of Oxon was dead before any of this matter came in agitation Mr. Sol. Gen. My Lord we will bring other Proofs Call Mr. Chetwood Mr. Smith Mr. Chetwood and Mr. Smith sworn Mr. Sol. Gen. Mr. Chetwood we would know of you if you know my Lord Bishop of Ely's Hand-writing Mr. Chetwood I never saw him write Mr. Sol. Gen. That 's not an Answer to my Question Do you know his Hand-writing Mr. Chetwood I do not certainly know it Mr. Sol. Gen. Have you seen any of it Mr. Chetwood I have seen my Lord of Ely's Writing that has been said to be his L. C. Iust. But surely you had better take a Witness that has seen him write Mr. Iust. Powell I think 't is hardly possible for a man to prove his Hand that has not seen him write L. C. Iust. I think 't is better proof indeed to bring some that has seen him write Mr. Chetwood My Lord 't is a long time since I saw my Lord of Ely's Writing L. C. Iust. Pray bring some other Proof if you have it Bp. of Peterburgh My Lord we are here as Criminals before your Lordship and we are prosecuted with great Zeal I beg your Lordship that you will not be of Councel against us to direct 'em what Evidence they shall give L. C. Iust. My Lord of Peterburgh I hope I have not behaved my self any otherwise hitherto than as becomes me I was saying this and I think I said it for your Lordships advantage That this was not sufficient Proof and I think if your Lordship observed what I said it was for you and not against you Bp. of Peterb It was to direct them against us how they should give Evidence Mr. Serj. Pemberton Pray my Lord of Peterburgh sit down you 'll have no wrong done you Sir. Rob. Sawyer We that are of Council will take care of that and pray my Lord will you please to pass it by L. C. Iust. We are not used to be so serv'd and I will not be used so Mr. Sol. Gen. If your Lordship pleases to pass that by for what your Lordship said was in favour of my Lords the Bishops but I see they do not take it so Mr. Att. Gen. Pray Mr. Chetwood do you look upon the Name of my Lord of Ely do you believe that to be his Hand-writing Mr. Chetwood I do believe it is Sir Rob. Sawyer That 's very well when he says he never saw him write Mr. Iust. Powell What is the reason of that belief of his I would feign know Mr. Chetwood I have formerly seen his Hand I think it was his but I never saw Lord of Ely write his Hand Sir Rob. Sawyer Then the Question is Whether this be Evidence Mr. Finch How do you know that that which you saw formerly was my Lord of Ely's Hand Mr. Chetwood I have no such Certainty as positively to swear that that was his Hand Mr. Sol. Gen. We will go on to other Proofs and if we want better Evidence at the end we will argue with them Mr. Chetwood I am not certain that what I saw was my Lord of Ely's Hand-writing because I never saw him write Mr. Sol. Gen. You do very well to shew your good affection Mr. Att. Gen. Mr. Smith I would ask you this Question Do you know my Lord of Ely's Hand-writing Mr. Smith I have seen it often Mr. Att. Gen. Look upon the Name of my Lord of Ely in that Paper Do you believe it to be my Lord's Hand-writing or no Mr. Smith I did not see him write it Sir I can not tell whether it is or no. L. C. Iust. Did you ever see his Name Mr. Smith Yes but it was a great while ago and here are but seven Letters and I cannot judge by that I was better acquainted with his Hand-writing heretofore Mr. Sol. Gen. Pray Sir answer me Do you believe it to be his Writing or do you not Mr. Smith I believe it may for I did not see him write it Mr. Sol. Gen. But my Question is Do you believe it or do you not Mr. Smith I say I was better acquainted with it heretofore than I am now Mr. Sol. Gen. But pray answer my Question Do you believe that to be my Lord of Ely's Hand-writing or do you not Mr. Smith I believe it may Sir. Sir Rob. Sawyer Why do you believe it Mr. Smith I have no other reason to believe it but because I have seen something like it Mr. Iust. Powell How long ago is it since you saw him write Mr. Smith I have not seen him write so as to take notice of it for some years I could better judge of it when he writ his Name Turner than now it is Ely because there was more Letters to judge by Mr. Middleton sworn L. C. Iust. Here 's Mr. Middleton what do you call him for Mr. Sol. Gen. To prove many of their Hands Mr. Att. Gen. Pray shew him that Paper Mr. Sol. Gen. First Mr. Middleton do you know my Lord Archbishop's Hand-writing Mr. Middleton I have seen his Grace's Hand-writing Mr. Sol. Gen. Do you believe it to he his Mr. Middleton It is very like it Mr. Sol. Gen. But do you believe it or do you not Mr. Middleton I do believe it Mr. Sol. Gen. Do you know my Lord Bishop of St. Asaph's Hand-writing Mr. Middleton I never saw it as I know of Mr. Sol. Gen. What do you say to my Lord of Ely his Name is next Mr. Middleton It is like his Lordship's hand Mr. Sol. Gen. Do you
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
to my Lords the Bishops that no advantage should be taken of what they said and I say the King made no such promise Mr. Serj. Pemberton We did not ask you the question but we only told you what use we would have made of another question Mr. Pollixfen Mr. Blathwayt I see you can very well distinguish what questions are to be answered I ask you in short upon your Oath When they were first called in what was said to them and what was answered by them L. C. Iust. Here has been a great deal of wrangling but this is a fair question and may reduce us to order again tell us oâ—…er again from the beginning what passed when my Noble Lords the Bishops came in the first second and third time when they were examined about this Paper Mr. Blathwayt My Lord I shall comply with your Lordship's Directions I apprehend I am to answer together concerning the first second and third comings in of my Lords the Bishops into the Council The first time as I said before my Lords the Bishops were unwilling to own the Paper and did say they humbly hoped His Majesty would not take advantage against them but that they were ready to obey his Command The second time they were called in they did repeat it again that they hoped His Majesty would not take advantage against them after that there was mention made of the Paper being published I remember my Lords the Bishops said they had not published it Sir R. Sawyer Is that all Mr. Att. Gen. You have no mind to hear all I think L. C. Iust. How do you expect to be answered your questions if you interrupt them Go on Mr. Blathwayt Mr. Blathwayt Sir I said last that they having prayed the King that no advantage might be taken against them for what they should say there was mention made of the Paper its being published and my Lords the Bishops did say they had not published it and His Grace my Lord Archbishop said it was written with his own Hand and that he had not made use of his Clerk. Sir. R. Sawyer Is that all you can remember that passed at that time Mr. Blathwayt This is the substance of what I remember L. C. Iust. Was this the third time Mr. Blathwayt No that was the second time my Lord. Mr. Pollixfen If there be not some order in this Evidence my Lord we shall not be able to observe any thing upon it Pray what was done afterwards Mr. Blathwayt My Lord Chancellour upon their coming in did require them to answer whether they did own that Paper or not my Lords the Bishops did own the Paper Mr. Pollixfen Do you remember in what words or expressions as near as you can they did own it Mr. Soll. Gen. Is this a practice to be endured Mr. Finch Why he may apprehend and take that to be an owning of it which was not Mr. Soll. Gen. Has not he sworn the manner of it and almost the very words Mr. Serj. Levinz We desire nothing of him but that he will tell us what words they said when they owned it Mr. Blathwayt It was the third time that they came in that they owned it Mr. Serj. Pemberton Why what did they say Mr. Blathwayt My Lord Chancellour required them to answer whether they owned the Paper or no. Mr. Serj. Pemberton What did they say then Mr. Blathwayt As near as I can remember His Grace and my Lords the Bishops did own the Paper Mr. Serj. Pemberton What words did they own it in tell the manner of it Mr. Soll. Gen. What 's this to the purpose Mr. Finch Mr. Blathwayt Did you take notes of what passed there Mr. Blathwayt I answer Sir I did not take notes for I attended the King at his Elbow and did not take notes Mr. Finch you know the manner of the Council in such cases very well Mr. Att. Gen. Then we ask you for the King because they shall not enflame People by such an expression In what words did they own it if you can remember Mr. Blathwayt Sir I have declared my memory as well as I can when the other Clerks come to be examined if they can tell any more let them Mr. Soll. Gen. But we will have no Discourse to enflame the World Did the King promise or declare that no advantage should be taken of their confession L. Ch. Iust. I would ask him that question What was the manner that my Lord Chancellour exprest himself in to them when they came in the third time Mr. Blathwayt Assoon as my Lord Chancellour had required them to declare whether they owned that Paper as well as I remember His Grace took the Paper in his hand and it was handed over or shewed to my Lords the Holding it forth to the Court. Bishops and they owned and declared so just as if they should lay it before the Court just so I do not recollect my self of all the circumstances that passed I only can tell you the substance Mr. Soll. Gen. He does not remember what they said particularly Mr. Att. Gen. Mr. Sollicitour I know well enough what they mean by the question I know they would fain possess the World with a belief that there was such a promise made them and yet they are prosecuted notwithstanding that promise therefore I do ask you Mr. Blaithwayt and for the King's Honour I must ask it Did the King make any Promise or Declaration that no advantage should be taken or use made of it Mr. Blathwayt The King did not make any Promise or Declaration that no advantage should be taken or use made of it Mr. Soll. Gen. He only put them upon it whether they did own it or not Mr. Att. Gen. I ask you upon your Oath Did my Lord Archbishop own it to be his Head-writing Mr. Blathwayt Yes he did and said he writ it with his own Hand and would not let his Clerk write it Mr. Att. Gen. Did he own the whole to be his Hand-writing or not Mr. Blathwayt Yes he did Mr. Att. Gen. Did every one of the Bishops own their names subscribed to it Mr. Blathwayt Yes Mr. Soll. Gen. Then my Lord we pray now that it may be read L. C. Iust. I suppose now they will be content it should be read Mr. Finch If your Lordship please to favour me one word I think it cannot yet be read and my Objection is this L. C. Iust. I thought you had made all your Objections before as to the reading of it Mr. Finch Pray my Lord spare us Here are two parts of this Information the one is for consulting and conspiring to diminish the King's Royal Prerogative and for that end they did make and write a seditious Libell the other part is that they did publish this seditious Libell We are hitherto upon the first part the making and writing of it both parts are local untill they have proved the making and writing of it to have been in Middlesex it
is not Evidence upon this Information Mr. Soll. Gen. We have proved it written and published in Middlesex Mr. Serj. Pemb. The contrivance and writing of a Libell is in itself penal and they may be punished for it if they be found guilty Now if they could give an undeniable Evidence concerning the publishing of it that is nothing to this point but if they should not give such Evidence or any Evidence at all of the publication yet if it be proved that it was written and contrived by them they would be guilty for so much if it be a Libell and this we say is local as well as all the rest and therefore we insist upon it that the writing and contriving must as well be proved to be in Middlesex as the publication for all is local L. C. Iust. There is no publishing yet proved Mr. Serj. Levinz It is true my Lord here is nothing of a Publication yet with your Lordship's favour for their Answer to His Majesty in Council was that they did not publish it all that is said yet is that they owned the Paper to be their hands My Lord does the owning of that own that it was written in the County of Middlesex or that it was contrived or made there No surely upon this Evidence the place is clearly at large My Lord this might have been done in the County of Surrey or Somerset or any other County Their Information is that they did consult and contrive to diminish the King's Prerogative at Westminster in the County of Middlesex and there they did write and cause to be written this Libell and there they did publish it suppose it should be granted that it is proved that this is the Archbishop's Hand-writing and these are their Names to it is there any one Evidence that any thing of this was done in Middlesex and my Lord that is the thing they are to prove Mr. Sommers If your Lordship please all matters of Crime are so local that if it be not proved to be done in the County where it is laid the party accused is as innocent as if he never had done the thing and with submission it is the very point of the Information that it be proved they are guilty of the Fact in the place where it is laid to be done L. C. Iust. This is the same thing over and over again but I am content to hear you Mr. Sommers at any time I have told you my opinion about reading of the Paper already if you 'll have it again you may Mr. Pollixfen Pray good my Lord spare us before it be read Mr. Iust. Holloway Mr. Pollixfen you have not yet had the Directions of the Court for the reading of it Mr. Att. Gen. My Lord when this Paper is read which we pray it may be we will answer their Objections but at present we say they are out of time Mr. Pollixfen Good Lord what a â—…ange thing is this We object against the reading of it and you 'll answer us after it is read Mr. Soll. Gen. Certainly my Lord we have done enough to prove that this is a paper owned by them in the County of Middlesex and we pray it may be read L. Ch. Iust. Truly I am of the same mind I was before that it is too soon to make the Objection and that the Paper ought to be read Mr. Soll. Gen. We submit to your Rule Mr. Pollixfen If it be the Will of the Court I have nothing to say Mr. Iust. Powell My Lord The Contrivance and Publication are both matters of Fact and upon Issue joined the Jurors are Judges of the Fact as it is laid in the Information but how can they be Judges of a matter of Fact done in another County and it must be presumed in favour of Innocence not to be done in this County but in another except they prove it Mr. Att. Gen. We are not yet ripe for arguing that point Mr. Soll. Gen. We are speaking only to the Court now for the reading of this Paper and the Jury are not Judges of that whether the Paper ought to be read or no that is merely a matter of Law and under the direction of the Court and therefore I pray since it is now in your Lordship's Judgment whether that Paper should be read that you would please to order it to be read L. C. Iust. I can only give you my own opinion let my Brothers give theirs Mr. Iust. Holloway There is no body against the reading of it my Lord I suppose my Brother Powell is not against its being read Mr. Iust. Powell But they say the King's Counsel must make it out first that the writing of it and the conspiring about it was in the County of Midds or there can be no judgment so much as to read it Mr. Pollixfen My Lord If the Objection be saved to us we shall not so much oppose the reading it only we would not be surprized in point of time Mr. Iust. Powell Nay if they consent to the reading we have no reason to hinder it L. C. Iust. Brother I believe they know well enough what they have to say for their Clients let the Paper be read Clerk reads The Humble Petition of William Archbishop of Canterbury Sir. R. Sawyer Read the whole Petition Pray my Lord that the whole may read Read the Top first Sir to whom it was directed L. C. Iust. Read the whole Clerk reads To the King 's Most Excellent Majesty The Humble Petition of William Archbishop of Canterbury and of divers of the Suffragan Bishops of that Province now present with him in behalf of themselves and others of their absent Brethren and of the Clergy of their respective Dioceses Humbly sheweth THat the great aversness they find in themselves to the distributing and publishing in all their Churches your Majesties late Declaration for Liberty of Conscience proceedeth neither from any want of Duty and Obedience to your Majesty our holy Mother the Church of England being both in her Principles and in her constant practice unquestionably loyal and having to her great Honour been more than once publickly acknowledged to be so by your Gratious Majesty nor yet from any want of due tenderness to Dissenters in relation to whom they are willing to come to such a Temper as shall be thought fit when that matter shall be considered and settled in Parliament and Convocation but amongst many other considerations from this especially because that Declaration is founded upon such a Dispencing Power as hath been often declared illegal in Parliament and particularly in the Years 1662 and 1672 and in 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
never published for the Question was before the Court whether this Sealing of it up and not delivering it to any other body were a Publication the Court was of Opinion that the very Writing of it was a Publication they did not value the delivery of it to the Prince but it was proved he Writ it and that made it Treason My Lord we have Cases enough in my Lord Hobart for this Matter Sir Baptist Hick's Case and my Lady Hattâ—…n's Case there was only a Letter sealed up and delivered to the Party L. C. I. You need not trouble your self about that Mr. Solicitor Mr. Sol. Gen. If the Case then be thus I take it it will turn upon this Fact they have given your Lordship no Proof where this Paper was Signed by them here are seven Persons that had a hand in it and here is only one Person whom they have insisted to be infirm and kept his House for a great while together We say the Publishing follows the Libel where-ever it goes the Libel is in the County of Middlesex they have confessed it in the County of Middlesex and they did not distinguish where it was done Then if they will not distinguish upon the Evidence no Man ought to distinguish but ought to presume it was done in that place where they owned it Mr. Attor Gen. I did not apprehend we were got so far that they Opposed us in the Publication Sir Rob. Sawyer Yes we did for you have given no Evidence of it Mr. Attor Gen. Surely my Lord for that we have give a sufficient Evidence and they have given some Proof of it as to my Lord Archbishop that because he had not been from Lambeth therefore he did not publish nor could cause it to be published for your Lordship sees by this Information they are not only to answer the Publicavit but also the Publicari causavit for do you doubt Gentlemen of the Law in this Case that if I compose a Libel in Surrey for Example and send a Person over into Middlesex I am not Guilty of the Publishing Sir Rob. Sawyer That is not your Case Mr. Attorney Mr. Finch That were clear if it were so but it is not so Mr. Attor Gen. My Lord Archbishop's Case signifies nothing if we shew it was published in Middlesex and you give no Evidence to the contrary but it might be there and I am sure as to the rest of my Lords the Bishops there is no Evidence at all given Here is a Petition that we say is a Libel they it may be will make that a Question this is delivered to the King 's own Hand in the County of Middlesex and there are as many Cases as any one Man can name that this amounts to a Publication by the Party for if I send a Letter by the Post sealed that no body can see but the Party himself and he that writ it it is adjudged over and over again it is a Libel Mr. Justice Powel That you need not labour Mr. Attorney for that 's the Case of Williams of Essex but how do you apply it to the Case now before us Mr. Attor Gen. That 's an Answer to their Objection as to the Publication Mr. Justice Powel But what say you to the first part you have not proved that it was written in Middlesex Mr. Attor Gen. There is the Case of Barrow and Lewellin in Hobart and likewise the Case of Sir Baptist Hicks which is reported both in Hobart and in Popham and in Popham towards the end of the Case there is a remarkable Passage Says that Case If it should not be punishable at the Suit of the King there would be no Remedy for the Party cannot bring an Action because he can be no Witness for himself and it is only known betwixt them two but a Witness for the King he may be to prove his own Receipt of the Letter and the Party's Hand Mr. Justice Powel You need not labour that Point I 'll tell you Mr. Attorney for the Law is very clear in that Point I think if you bring it home to your Case Mr. Attor Gen. Then here 's the Case in short my Lord That my Lords the Bishops have caused to be made and written this Petition they are made Parties to it by setting their Names and this is a continued Act whatsoever is written there is my Lord Archbishop's Writing where-ever it goes as I 'll put you a Case that 's very well known If I take away Goods from a Man in the County of Cumberland and I am found with them in the County of Middlesex it is a continued Act and makes all but one Felony and I shall be Tried here in Middlesex for it If a Man write a thing in one County and it is sent and dispersed in another County that still continues to be his Fact though it may be the first part was not in the same County with the other but suppose all this while that part should not affect my Lord of Canterbury the causing it to be Published does Mr. Justice Powel Do you think Mr. Attorney that writing in one County is such a continued Act that he may be said to write it in another County Mr. Attor Gen. Sir I take it where there is a complicated Crime of Writing and Publishing a Libel and the beginning of it is in one County and the carrying it on is in another that is a continued Act and may be Tried in either County L. C. I. It is all one Act of Libelling as they say Mr. Iust. Holloway In Cases of Felony 't is so taking in one County and being found with the Goods in another it is Felony in either County Mr. Iust. Powel But in that Case they are two Felonies for it is Robbery in the one County and but bare Felony in the other Mr. Sol. Gen. Suppose that my Lords the Bishops Signed this Paper in another County and my Lord Archbishop consents to have it sent into Middlesex is not this a causing it to be published in another County Mr. Iust. Powel Yes it may be if you prove his Consent Mr. Sol. Gen. Then suppose further which may very well consiâ—…t with my Lord Archbishop's Evidence of his not being out of Lambeth in so long time the rest of the Bishops might sign it in Middlesex or it may be in that Place and then they carry it by my Lords consent over hither into this County is not this a causing it to be published the Delivery with his Consent certainly is a Proof of that for our Information goes two ways For Making Contriving Writing and Publishing that 's one And then For causing it to be Made Contrived and Published that 's the other And if I prove that he caused it to be published he may be found Guilty as to that part and not Guilty as to the other for the Information is not so intire but that the King has his choice if the Archbishop had
and an Affront put upon the Bishops they ought to make it out for their own Vindication and to prove themselves Innocent If they do that they do well and they ought to have Satisfaction â—…de them by those that have so highly injured them and the King cannot be better pleased I am sure than to find them so But if Men will look one way and act another they must expect to be dealt with accordingly Will any Man that has heard this Evidence and sees that these Gentlemen will not go the right way to work to prove their own Innocence believe them to be not Guilty 'T is plain they contrived it and signed it for can any one imagine that they set their Hands to a Paper that was not formed and contrived by themselves then let it go That this was done in another County and we cannot punish the Writing of it in this County yet still they are Guilty of causing it to be published in this County and for that we may punish them here We will be content with having that found that we have proved which certainly is an Offence Sir Rob. Sawyer We oppose that Sir. Mr. Sol. Gen. You oppose it I know you 'l oppose common Sense we don't speak to you we speak to the Court we are content with what is plain and do not desire to insist upon any strained Construction we say this is Natural Evidence for us If this thing be a Libel as we say it is then the causing it to be published is an Offence The Publication we â—…ay was here in Middlesex and of that there is Clear Evidence because it was found there and came from the King's Hand to whom it was directed and it could not come to the King's Hand out of their Custody without their Consent This we say is a clear Evidence of causing it to be published let the rest go as it will because we will take the easiest part of the Case and not go upon Strains Mr. Serj. Trinder The greatest Question is I think now come to the Publishing L. Ch. Iust. The Court is of Opinion that its coming to the King is a publishing Mr. Justice Powel Ay my Lord if it be proved to be done by them Mr. Serjeant Pemberton Before the Court deliver their Opinion we desire to be heard L. Ch. Iust. Brother you shall be heard in good time but let them make an end on the other side and when the King's Counsel have done we 'l hear you Mr. Serjeant Trinder My Lord upon the Question of Publishing it has been insisted upon and the Court seems to be very much of the same Opinion That the Writing of it is a Publishing That it is without Controversie if the Writing of it fell out to be in Middlesex where the Information is laid but that they would not have to be so by Argument because the Archbishop had kept in at Lambeth so long But suppose that it were so as they would have it that is only as to the Archbishop he being the Writer of it but yet notwithstanding that the other six might subscribe it in Middlesex taking it that there is such a Face in their Argument as they would have it Mr. Sol. Gen. We will lay no greater load on the other six than we do upon my Lord Archbishop and we say they are all Guilty of the Publication in Middlesex Mr. Serjeant Trinder Pray Sir spare me this Paper was in the Archbishops Custody and Power he making of it himself and regularly it could not have come out of his Custody in common Supposition but it must come with his Consent It was afterwards in the Power of the other six they had it to subscribe where the Subscription was non constâ—… they it may â—…e can prove it themselves but I will only deduce this Argument That if it after comes into Middlesex it must be taken by presumption to be subscribed by them there and published it must taken by Presumption so to be Lord Ch. Iust. No Brother we ought not to do any thing by presumption here Mr. Just. Powel No no by no means we must not go upon Presumptions but Proofs L. Ch. Iust. I will not presume it to be made in Middlesex Mr. Serj. Trinder But it is proved to be published in Middlesex Sir Robert Sawyer My Lord with submission there is no Evidence of the Publication Mr. Attor Gen. That the Court is to judge of Sir Rob. Sawyer Pray good my Lord what Instance of a Publication have they given Mr. Sol. Gen. The Court has heard â—…he Evidence we leave it there Sir Rob. Sawyer Was it their owning and acknowledging it was their Hands when the King asked them the Question at the Council-Table Surely the King's Counsel won't pretend that was a Publication when it was done at the King's Command it was certainly the King that published it then and not my Lords the Bishops Mr. Attor Gen. Well said Sir Rob. Sawyer Don't you remember that when Sir Blathwayt said the King gave it to be read and it was shewed to the Bishops L. Ch. Iust. I remember what Evidence Mr. Blathwayt gave of the Passages at the Council-Board very well and I know what Mr. Attorney did press about the Kings promising to take no advantage Mr. Attor Gen. My Lord Mr. Attorney is on the other side he did not press it L. Ch. Iust. Sir Robert Sawyer I mean I beg both your Pardons Gentlemen I think I have done Injury to you both Sir Rob. Sawyer My Lord we say there is no Evidence at all that ever this was sent to the King by the Archbishop or any of my Lords the Bishops And as for the Cases that they have put they might have put five hundred Cases and all nothing to the purpose Mr. Sol. Gen. So they might and done just as others had done before them Sir Rob. Sawyer And so are these for here is the Question We are in a Case where the Publication is that which makes it a Crime Now I would have them if they can put me any such Case and then apply it to this in William's Case the Question is quite otherwise and so in any Case of Treason it must be where-ever there is an Overt Act proved it is the Treasonable Intention and the ill Mind of the Traytor that is the Crime and the Treason the Overt Act is only to be the Evidence of it In that Case of Williams with submission my Lord the Publication was not at all necessary but the very secretest Act that could be done by him if it were an Act is an evidence of the Mind and so the sending of the Book to the King himself though no body else did see it was an Evidence of the Crime of Treason yet it could not be called a Pâ—…blication But in the other Case of Sir Baptist Hicks which was in the Star-Chamber about sending a Letter of Challenge it was plainly resolved that it was no Publication
have been in Surrey or otherwise they must hold that the Answer to the King's Question this is my Hand is a Publication But truly my Lord I think neither of these will do But my Lord to me this is a great Evidence in it self against the Proof of a Publication the Care and Wariness that has been used that there should be nothing at all of this Matter known from the time that it was written to the time that they came to be examined and summoned to appear as Offenders My Lord the Nature of Libels is to publish and proclaim Scandal and Defamation or else it loses its End and consequently its Name This as it stands upon their Evidence is a monstrous Proof for my Lords the Bishops against the King's Council for it seems 't is a very private Matter so cautiously and warily carried that there is not any Evidence of the Fact but only the Names of the persons that writ it till they come to be examined by the greatest Authority Is this your Hand and then they own it so to be how can this be taken to be a Publication and it will be a thing of wonderful Consequence if an Answer to a Question put by Authority should amount to a Crime as it would in this Case that would be as if Authority that should be employed to do Right would be turned to do the greatest Wrong for it is the Duty of all men to answer when examined by a lawful Authority and it would never be offered at sure in any other Case If a Man comes before a Magistrate and confesses any thing that indeed is Evidence but is not a Crime for there is a great deal of difference between Evidence and the Crime but that this should be both an Evidence and a Crime too is I think a very strange Construction and for the other part the writing of it I suppose the Court is satisfied that it was in another County Sir Geo. Treby I desire your Lordship to spare me a Word which I think has not been observed by the Council that have spoke before The Question that remains is Whether my Lords the Bishops did Publish this Paper This is a matter of Fact that lies upon the Prosecutors to prove Now I think they are so far from having proved that the Bishops did publish it that on the contrary they have proved that their Lordships did not Publish it The Evidence they have offered for this matter is a Confession This Confession is testified by Mr. Blathwayt and he says the Bishops were ask'd at the Council whether they did subscribe and publish this paper and that their answer was that they did subscribe but not publish it Now a Confession must be taken together and must be admitted to be intirely true by them that produce it they shall never be allowed to take out and use one piece and wave the rest Why then by this Evidence of Confession taken as it ought it appears that the Bishops though they did subscribe did not publish the paper So that I say the King's Counsel have hereby plainly proved that the Bishops did not publish this paper and yet this is the onely Evidence upon which they would infer that they did publish it Mr. Att. Gen. Look you it does lie upon you Gentlemen to prove it was done elsewhere than in Middlesex Mr. Finch Sure Mr. Attorney is in jest Mr. Att. Gen. No I am in good earnest all the proof that we have given has been in Middlesex and you can best tell whether you did it in Middlesex or no. Mr. Finch My Lord we have done as to this Objection for we say they have not proved their Case L. Ch. Iust. Mr. Finch you may observe and I am sure you do observe as well as any body in all Cases but I say you may observe that they are off of every thing but causing it to be published now that does lie upon the King's Counsel to prove that my Lords the Bishops did cause it to be published for their owning of their hands does not amount to a Publication Mr. S. Pemberton My Lord We are upon this point with them whether here be any Evidence of a Publication at all Mr. Iust. Powell Pray let us clear this first for if there be no publication there can be no causing of it to be published Mr. Att. Gen. My Lord if you think fit we shall go on and reserve this point till afterwards Mr. Sol. Gen. They may make Objections if they think fit L 〈◊〉 Iust. So they may and they say if these Objections are with us we need go no farther Mr. S. Pemberton But my Lord if they be not with us we have a reserve to give a farther Answer to it and to offer Evidence against the Evidence they have offered Mr. Sol. Gen. With all our hearts give in Evidence what you can Mr. Att. Gen. Then pray my Lord let us go on to answer this Objection L. Ch. Iust. Pray do Mr. Attorney Mr. Att. Gen. My Lord and Gentlemen of the Jury I would first observe how far we have gone That there was such a paper written is clear beyond all question and written by my Lord Archbishop of Canterbury and that it was signed by the rest of the Bishops but not in the County of Middlesex and that this paper was published is agreed on all hands Mr. Iust. Holloway No they do not agree that Mr. Att. Gen. Do I say it was published by them but there was such a paper published Mr. S. Pemberton No we say it was never published at all L. Ch. Iust. Pray Brother Pemberton be quiet if Mr. Attorney in opening does say any thing that he ought not to say I will correct him as I would do any body that does not open things right as they are proved but pray don 't you that are at the Bar interrupt one another it is unbecoming men of your Profession to be chopping in and snapping at one another Go on Mr. Attorney Mr. Att. Gen. I say that the Paper is proved to be written and signed by my Lords the Bishops that I take for granted and that the Paper so signed and written is now published to the world is also evident but the question is who it was done by or who caused it to be done we are reduced to that question Now first it is agreed on all hands that if I send a Letter to a private Man containing Scandalous things in it though there is no proof more but that it was sent sealed and received by the party in that Case it was a fault punishable in the Star-Chamber as a Crime but now that this was received by the King and written by them there is no room for doubt for you hear it was produced by the King at the Council-Board and they asked upon it if it were their hands that the King did receive it there is no room for question or that they did write it but
Chancellor used Mr. S. Levinz Pray do not twist a man so Mr. Solicitor Mr. Sol. Gen. And you are not to untwist a man neither Mr. Serjeant Mr. Att. Gen. Do you remember that the King said any thing of the paper being delivered to him Mr. Blathwait The King has said it several times I believe I have heard him say it ten times at least Mr. Att. Gen. Did he say it at that time Mr. Blathwait I cannot positively say that he did Sir. Mr. S. Pemb. He cannot answer it why will you press it Mr. Blathwait My Lord here is the Clerk of the Counsel that was then in waiting he took minutes and perhaps can remember more than I. Mr. Sol. Gen. Here they cry he cannot answer it as if they could tell what he can answer better than himself pray Mr. Bridgman was there any question to this purpose either from my Lord Chancellor or from the King whether that was the Paper that was presented by my Lords the Bishops or delivered by the King for I see you are very nice as to words and you do very well but was there not a question to that purpose Mr. Bridgm. Sir I do not remember for I speak to the best of my remembrance in all this matter I say I do not remember that that question was asked in those very words but I do remember something was said to that purpose but by whom I cannot particularly say Sir Rob. Sawyer To what purpose Mr. Sol. Gen. It is very strange that they wont let the witness speak but are continually interrupting him Sir Rob. Sawyer Mr. Solicitor no body interrupts him L. C. I. Why do not I behave my self between you all as I ought to do pray Sir Rob. Sawyer sit down you cannot be contented when the man does you no harm Mr. Sol. Gen. Pray consider did my Lords the Bishops say any thing or was there any discourse concerning the Paper whether it was delivered to the King or no Mr. Bridgm. Mr. Solicitor I have told you as near as I can what I do remember I know not by whom it was said but that question or to that purpose was asked whether that was the Petition they delivered but I do not remember whether the question was directly asked or answered there was something about it and several passages there were but whether spoken by my Lord Chancellor or who I cannot remember Mr. Sol. Gen. You say there was that which sufficiently denoted a question to that purpose and they said nothing against it Mr. Bridgm. No there was no denial of it Mr. S. G. I see you do not remember the particular words nor do we desire it of you Mr. Bridgm. They did not deny it nor confess it Mr. Sol. Gen. Then in your apprehension did they own that they delivered that Paper to the King L. C. I. You must not ask that Mr. Solicitor it is not a fair question to ask him what he apprehended Mr. Sol. Gen. He said it before himself L. C. I. But his apprehensions are no Evidence and it is a sort of a leading question which we must not allow of Mr. Sol. Gen. Then if your Lordship do not like it I will not ask it but I will ask him another question L. C. I. Ay ten if you will so they be fair ones Mr. Sol. Gen. Was it upon the first or second time of their being examined Mr. Bridgm. I cannot tell it was not the first time all of it I believe for at the first time my Lords the Bishops made some scruple of answering or owning any thing and whatsoever they owned they said they hoped it should not be made use of to their prejudice I remember no reply that was made nor any thing farther onely my Lord Chancellor said they were not to capitulate with their Prince but they were required to answer the questions that were asked them Mr. Sol. Gen. What were those questions Mr. Bridgm. I have told you already as well as I can remember Mr. Sol. Gen. But did you take it upon the main that they owned the delivery of that paper to the King Mr. Iust. Pow. Mr. Solicitor you have been told you are to ask no such questions S. R. Saw. Nor never was there such wire-drawing of a Witness in this world before L. Ch. Iust. Pray sit still Sir Rob. Sawyer you are not to teach us what we are to do Mr. Solicitor must ask questions that are proper for him and not such as these but the Court must correct him and not you Mr. Sol. Gen. Mr. Bridgman is very cautious and he is to be commended for it but we would get the truth out of him if we could pray Sir if you can remember recollect your self whether by any question to that purpose it was believed that they did own the delivery of the paper to the King. Mr. Bridgm. I told you Mr. Solicitor as to that at first that I do not remember the very words of the question but I believe there was no body doubted that that was not the paper Mr. Sol. Gen. You speak well in your way but these Gentlemen are very unwilling you should tell your opinion L. Ch. Iust. His opinion is no Evidence therefore you must not ask any such questions Mr. Solicitor Mr. Bridgm. Assoon as the Petition was delivered within a few hours after I saw it the King shewed it to several people and he said it was the Petition the Bishops had delivered he took it into his own custody and afterwards commanded me to write a Copy of it and there was no Copy made of it but that one but notwithstanding that I do remember I did see a Copy of the Petition within a day or two after it was presented about the Town Mr. Sol. Gen. Pray how many days was this before the discourse in Counsel upon their Examination Mr. Bridgm. How many days was what Sir Mr. Sol. Gen. When the King gave the paper to be copied Mr. Bridgm. It was upon the Sunday Mr. Sol. Gen. But you say as you believe it was in a few hours after the paper was delivered to the King that you did see it Mr. Iust. Powel But what makes him say that this was delivered to the King but only hear-say Lord Ch. Iust. Pray Mr. Solicitor will you produce that which is Evidence and not spend our time in that which is not Mr. Sol. Gen. My Lord I would make no more of it than it is Mr. S Levinz 'T is a shamefull thing to offer such things in a Court of Justice Mr. S. Pemberton 'T is a practice that ought not to be endured Lord Ch. Iust. Pray Brothers be quiet or I 'le turn him loose upon you again if you 'l not be quiet what is the matter cannot you let us alone we shall do every body right come to shorten this matter I ask you but this one question and that may satisfie any one that has honesty about him do you
that any body else delivered it to the King without their knowledge or consent here must needs be a very violent presumption that they did do it and when nothing of that is said on their side can any Jury upon their Consciences say that it was not published by them and it being found in Middlesex though it might be written and composed in Surry yet surely we have given a convincing Evidence that either they published it or caused it to be published in Middlesex Pray call Mr. Grayham Cryer He is gone out of the Hall. Mr. Sol. Gen. My Lord there is in Law a presumption that is Evidence though there be no positive proof Sir Rob. Sawyer But not in an Information for a Libel Mr. Sol. Gen. This is a meer question of Fact there is no difficulty in the Law of it at all for it is plain if these Lords or any of them did consent and agree to the publishing of this Paper in Middlesex they are guilty of this Information and whether they are guilty or not guilty we do rely upon the Circumstances proved which are very violent First that they were the Men that contrived and set their hands to it and so were the Authours of it is undenyable for they have owned it Men of their learning and parts never did any such thing in vain and then that they were concerned in the publishing of it in Middlesex we offer for proof that which was said by Mr. Pepy's and Mr. Blathwait who though they do not come directly and expresly to the formal words of such a question yet they tell you especially Mr. Blathwait that they did apprehend it and it was the Collection of all their thoughts and they took it for granted as a thing that every body was satisfied in that they did deliver that Paper to the King. I must confess and agree there is no proof of the delivery of it by my Lords the Bishops to the King but we know very well that it is no wonder when a Paper is Libellous that Men should use all the skill they can to publish it with impunity and this is a thing that was done after some time of premeditation and serious Consultation for it was some days after the Order for reading the Declaration was published that this was framed and delivered and it concerned them to be wary as it seems they have been but take this altogether my Lord the Paper being found in the King's Hands it is in these Persons Power and it lies upon them to make it out plain what became of this Paper which once lay in their own Hands and Custody they can give an Account of it they can give Light unto it If they do not I shall submit to the Jury whether this is not sufficient Evidence to Convict them especially when being examined they did not make that their Excuse they never said this Paper indeed we signed but we did not intend to publish it we intended to stifle it that had been some excuse But for them to say now they did not present it to the King I must submit to the Jury whether they will believe upon this Evidence that these Lords the Bishops did present it or cause it to be presented to the King then they are guilty of this Matter And I leave it to them and their Consciences what they will think upon the whole Mr. Recorder My Lord if your Lordship please Lord Chief Iustice. What again Well go on Sir Bartho Shore if we must have a Speech Mr. Recorder Nay my Lord I would not trespass upon your Lordship L. C. Iust. Gentlemen of the Jury here is an Information against my Lords the Bishops I think I need not trouble my self to open all of it because I see you are Men of Understanding Men of great Diligence and have taken Notes your selves some of you therefore I say only something of the Proof that is required in such a Case and of the manner of the Proof that has been given in this Case and then tell you my Opinion in Point of Law. Here is an Information brought by Mr. Attorny General on behalf of the King against these Reverend Fathers of the Church the Arch-Bishop and the rest and it is for publishing a Seditious Libel under the pretence of a Petition in which are contained the words that are seen Gentleman the Information is long it tells you That the King out of his Gracious Clemency to all his Loving Subjects and for other Considerations had thought fit to publish a Declaration of Indulgence that all his Loving Subjects might have Liberty of Conscience upon the 4th of April in the 3d Year of his Reign and that this was set forth by the King and that the King of his farther Grace about the 27th of April then next following Mr. Finch I humbly beg your Lordships Favour L. C. Iust. What say you Mr. Finch Mr. Finch I ask your Pardon for breaking in upon you when you are directing the Jury I know I should not do it but I hope you will not be angry with me for it L. C. Iust. If I thought you did any Service to your Client I should willingly hearken to you Mr. Finch That which I humbly offer to your Lordship is only to remember your Lordship where we were L. C. Iust. Go on Sir. Mr. Finch I would only say this my Lord the Question is Whether this be Evidence or no L. C. Iust. I am sorry Mr. Finch you have that Opinion of me as to think I should not leave it fairly to the Jury Mr. Finch I only speak it my Lord because if it be Evidence we have other Matter to offer in Answer to that Evidence and in our own Defence L. C. Iust. If you have more to offer why did you conclude here and let me begin to direct the Jury but since you say you have other Matter to offer we will hear it Mr. S. Pemberton My Lord we submit to your Lordships direction L. C. Iust. No no you do not you say you have further Matter to offer Mr. Pollixfen My Lord we shall rest it here L. C. Iust. No no I will hear Mr. Finch Go on my Lords the Bishops shall not say of me that I would not hear their Counsel I have already been told of being Counsel against them and they shall never say that I would not hear their Counsel for them Mr. S. Levinz My Lord we beseech your Lordship go on with your Directions for all that Mr. Finch said was only that this was not sufficient Evidence L. C. Iust. No Brother he says you have a great deal more to offer and I will not refuse to hear him the Court will think there was something more than ordinary therefore I will hear him such a Learned Man as he shall not be refused to be heard by me I 'le assure you Why don't you go on Mr. Finch Mr. Finch My Lord I beg your pardon for interrupting
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
there was nothing of Sedition nothing of Malice nothing of Scandal in it nothing of the Salt and Vinegar and Pepper that they have put into the Case We shall prove the Matters that I have open'd for our Defence and then I dare say your Lordship and the Jury will be of Opinion we have done nothing but our Duty Mr. Finch May it please your Lordship and you Gentlemen of the Jury This Information sets forth as you may observe upon opening it that the King having by his Royal Prerogative set forth his Declarations that have been read and made an Order of Council for the Reading the said Declarations in the Churches and that the Archbishop and Bishops should severally send them into their Diocesses to be read my Lords the Bishops that are the Defendants did consult and conspire together to diminish the Kingly Authority and Royal Prerogative of the King and his Power and Government in his Regal Prerogative in setting forth his Declaration and that in prosecution of that Conspiracy they did contrive as it was laid in the Information a malicious seditious scandalous false and feigned Libel under pretence of a Petition and so set forth the Petition and that they published the Petition in the presence of the King. To this Charge in the Information Not Guilty being pleaded the Evidence that hath been given for the King I know hath been observed by the Court and the Jury and I know will be taken into Consideration how far it does come up to the Proof of the Delivery of this Petition by my Lords the Bishops for all that was said till my Lord President was pleas'd to come was no Evidence of any Delivery at all and my Lord Preâ—…dent's Evidence is that they were going to deliver a Petition but whether they did deliver it or did it not or what they did deliver he does not know This is all the Evidence that has been given for the King. But supposing now my Lord that there were room to presume that they had delivered this Petition set forth in the Information let us consider what the Question is between the King and my Lords the Bishops The Question is Whether they are guilty of Contriving to diminish the King's Regal Authority and Royal Prerogative in his Power and Government in setting forth this Declaration Whether they are guilty of the making and presenting a malicious seditious and scandalous Libel and whether they have published it as it is said in the Information in the King's Presence So that the Question is not now reduced to this Whether this Paper that is set forth in the Information was delivered to the King by my Lords the Bishops but whether they have made a malicious seditious and scandalous Libel with an Intent to diminish the King's Royal Prerogative and Kingly Authority And then if you Gentlemen should think that thâ—… is Evidence given sufficient to prove that my Lords the Bishops have delivered to the King that Paper which is set forth in the Information yet unless they have delivered a false malicious seditious and scandalous Libel unless they have published it to stir up Sedition in the Kingdom and unless they have contrived this by Conspiracy to diminish the King 's Royal Prerogative and Authority and that Power that is said to be iâ—… the King my Lords the Bishops are not guilty of this Accusation There are in this Declaration several Clauses which upon reading of the Information I am sure cannot but have been observed by you Gentlemen of the Jury and one special Clause hath been by the Council already opened to you and I shall not enlarge upon it My Lord This Petition that is thus delivered to the King if it be a Libel a scandalous and seditious Libel as the Information calls it it must be so either for the Matter of the Petition or for the Persons that deliver'd the Petition or for the manner of their presenting and delivering it But neither for the Matter nor for the Persons nor for the manner of presenting it is there any Endeavour to dimâ—…nish the King 's Royal Prerogative nor to stir up Sedition nor Reflection upon the King 's true Royal and Kingly Authority The Petition does humbly set forth to His Majesty that there having been such a Declaration and such an Order of Council they did humbly represent to His Majesty that they were not averse to any thing commanded them in that Order in respect to the just and due Obedience that they owed to the King nor in respect of their want of a due Tenderness to those Persons to whom the King had been pleased to shew his Tenderness but the Declaration being founded upon a Power of Dispensing which had been declared illegal in Parliament several times and particularly in the Years 1662 72 and 85. they did humbly beseech His Majesty they not being able to comply with his Command in that matter that he would not insist upon it Now my Lord Where is the Contrivance to diminish the King's Regal Authority and Royal Prerogative This is a Declaration founded upon a Power of Dispensing which undertakes to suspend all Laws Ecclesiastical whatsoever for not Coming to Church or not Receiving the Sacrament or any other Nonconformity to the Religion established or for or by reason of the Exercise of Religion in any manner whatsoever Ordering that the Execution of all those Laws be immediately suspended and they are thereby declared to be suspended as if the King had a Power to suspend at once all the Laws relating to the establish'd Religion and all the Laws that were made for the Security of our Reformation These are all suspended by His Majesty's Declaration as it is said in the Information by virtue of his Royal Prerogative and Power so to do Now my Lord I have always taken it with Submission that a Power to abrogate Laws is as much a part of the Legislature as a Power to make Laws A Power to lay Laws asleep and to suspend Laws is equal to a Power of Abrogating them for they are no longer in Being as Laws while they are so laid asleep or suspended And to abrogate all at once or to do it time after time is the same thing and both are equally parts of the Legislature My Lord In all the Education that I have had in all the small Knowledge of the Laws that I could attain to I could never yet hear of or learn that the Constitution of this Government in England was otherwise than thus That the whole Legislative Power is in the King Lords and Commons the King and his two Houses of Parliament But then If this Declaration be founded upon a part of the Legislature which must be by all Men acknowledged not to reside in the King alone but in the King Lords and Commons it cannot be a legal and true Power or Prerogative This my Lord has been attempted but in the last King's time it never was pretended till
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
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
to distribute this Declaration in all their Churches which was to tell the People they ought to be under no Law in this Case which surely was a very great Pressure both in point of Law and Conscience too they lying under such Obligations to the contrary as they did With submission to your Lordship and you Gentlemen of the Jury If they did deliver this Petition Publishing of it I will not talk of or there has been no proof of a Publication but a delivering of a Petition to his Majesty in the most secret and decent manner that could be imagined My Lords the Bishops are not guilty of the Matter Charged upon them in this Information it has been expresly proved that they did not go to disperse it abroad but only deliver'd it to the King himself And in short my Lord if this should be a Libel I know not how sad the Condition of us all would be it we may not Petition when we suffer Mr. Finch My Lord I Challenge them to shew us any one Instance of such a Declaration such a General Dispensation of Laws from the Conquest till 1672. The first Umbrage of such a thing is that of 〈◊〉 1662 but your Lordship heâ—…s the Declaration of the Parliament upon it Before that as there was no such thing so your Lordship sees what the Parliament did to enable the King not to do this thing but something like it in Richard the Seconds Time where you see the Parliament did give the King a Power to Dispense with the Statute of Provisors for a time but at the same time declared that very Grant of their own to be a Novelty and that it should not be drawn into Consequence or Example My Lord we shall leave it upon this Point to suspend Laws is all one as to abrogate Laws for so long as a Law is suspended whether the Suspension be Temporary or whether it be for ever whether it be at once or at several times the Law is abrogated to all Intents and Purposes But the Abrogation of Laws is part of the Legislature that Legislative Power is lodged as I said before and I could never find it otherwise in all our Law in King Lords and Commons Ld. Ch. Iust. You did open that before Mr. Finch Mr. Finch With this my Lord That my Lords the Bishops finding this Order made upon them to publish this Declaration did what in Duty they were bound to do and unless the Jury do find that they have done that which is contrary to Law and to the Duty of their places and that this Petition is a Libel and a seditious Libel with an intent to stir up Sedition among the People We rely upon it My Lords the Bishops can never be found Guilty upon this Information Ld. Ch. Iust. Have you now done Gentlemen Mr. Finch Yes my Lord till they give us further occasion if they have any other Evidence to offer we must Answer it if not this is the Answer we give to what they have said Mr. Solicit Gen. We make no Bargain with you If you have done say so Ld. Ch. Iust. You must know that you are not to have the last word Mr. Solicit Gen. You have been three hours already if you have any more to say pray conclude Mr. Finch If they say they have no more Evidence then we know what we have to do Ld. Ch. Iust. If you do say any thing more pray let me advise you one thing don't say the same thing over and over again for after so much time spent it is â—…irksome to all Company as well as to me Mr. Finch My Lord we have no more Evidence to offer to your Lordship at present unless they by offering new Evidence give us occasion to Reply upon them Ld. Ch. Iust. Gentlemen you shall have all the Legal favour and advantage that can be but pray let us keep to an orderly decent Method of proceeding Sr. Rob. Sawyer Pray my Lord favour me a word before we conclude My Lord I do find very few Attempts of this Nature in any Kings Reign In the Reign of Henry the Fourth there was an Act of Parliament that Foreigners should have a Free Trade in the City of London notwithstanding the Franchises of London after the Parliament rose the King issued out his Proclamation forbidding the Execution of that Law and Commanding that it should be in Suspence Usque ad Proximum Parliamentum yet that was held to be against Law. Ld. Ch. Iust. Sir Robert Sawyer that which you are to look to is the publishing of this Paper and whether it be a Libel or no. And as to the business of the Parliaments you mentioned they are not to the purpose Sir Rob. Sawyer My Lord I say I would put it where the Question truly lyes if they don't dispute the Point then we need not labour it but I dont know whether they will or no and therefore I beg your Lordships favour to mention one Case more and that is upon the Statute of 31 Hen. 8. cap. 8. Which enables the King by Proclamation in many Cases to create the Law which Statute was repealed by 1. Edw. 6. cap. 12. That very Act does recite that the Law is not to be altered or restrained but by Act of Parliament and therefore the Parliament enables the King to do so and so But that was such a Power that the Parliament thought not fit to continue and it was afterwards Repealed but it shews that at that time the Parliament was of the same Opinion as to this Matter that other Parliaments have been since Mr. Sommers My Lord I would only mention the great Case of Thomas and Sorrel in the Exchequer Chamber upon the validity of a Dispensation of the Statute of Edward the Sixth touching Selling of Wine There it was the Opinion of every one of the Judges and they did lay it down as a setled Position that there never could be an Abrogation or a Suspension which is a Temporary Abrogation of an Act of Parliament but by the Legislative Power That was a Foundation laid down quite thorough the debate of that Case Indeed it was disputed how far the King might dispense with the Penalties in such a particular Law as to particular Persons but it was agreed by all that the King had no power to suspend any Law And my Lord I dare Appeal to Mr. Attorney General himself whether in the Case of Godden and Hales which was lately in this Court to make good that Dispensation he did not use it as an Argument then that it could not be expounded into a Suspension He admitted it not to be in Kings power to suspend a Law but that he might give a Dispensation to a particular Person was all that he took upon him to justifie at that time My Lord by the Law of all civilized Nations if the Prince does require something to be done which the Person who is to do it takes to be unlawful
it is not only lawful but his Duty Rescribere Principi this is all that is done here and that in the most humble manner that could be thought of your Lordship will please to observe how far it went how careful they were that they might not any way justly offend the King. They did not interpose by giving advice as Peers they never stirr'd till it was brought home to themselves when they made their Petition all they beg is that it may not so far be insisted upon by his Majesty as to oblige them to read it whatever they thought of it they do not take upon them to desire the Declaration to be revoked My Lord as to Mattters of Fact alledged in the said Petition that they are perfectly true we have shewn by the Journals of both Houses In every one of those Years which are mentioned in the Petition this Power of Dispensation was considered in Parliament and upon debate Declared to be contrary to Law there could be no Design to diminish the Prerogative because the King hath no such Prerogative Seditious my Lord it could not be nor could possibly stir up Sedition in the minds of the People because it was presented to the King in private and alone false it could not be because the Matter of it is true There would be nothing of Malice for the occasion was not sought the thing was pressed upon them and a Libel it could not be because the intent was innocent and they kept within the bounds set by the Act of Parliament that gives the Subject leave to apply to his Prince by Petition when he is agrieved Mr. Att. Gen. Have you done Gentlemen Mr. Finch We have done Sir. Mr. Att. Gen. My Lord I shall be a great deal more merciful to your Lordship and the Jury than they have been who have spent these four hours in that which I think is not pertinent to the Case in Question They have let themselves into large Discourses making great Complaints of the Hardships put upon my Lords the Bishops by the Order of Councel to read his Majesties Declaration and putting these words into the Information of Seditious Malicious and Scandalous But my Lord I admire that Sir Robert Sawyer should make such Reflections and Observations upon these words when I am sure he will scarce find any one of his own exhibiting that has so few of those aggravating words as this has and therefore that might have been very well spared especially by him In the next place my Lord we are told what great Danger our Religion is in by this Declaration I hope we have an equal concern for that with them or any Person else whatsoever But however I am sure our Religion teaches us not to preserve our Religion or our Lives by any illegal Courses and the Question is whether the Course that my Lords the Bishops have taken to preserve as they say our Religion be Legal or not if it be not Legal then I am sure our Religion will not justifie the using such a Course for never so good an End. My Lord for the thing it self I do admire that they in so long a time and search that they have made should not which I expected produce more Presidents of such a Paper as this is They challenge us to shew that ever there was any such Declaration as this I 'le turn the same Challenge upon them Shew me any one instance that ever so many Bishops did come under pretence of a Petition to reflect upon the King out of Parliament Sir Robert Sawyer Is that your way of Answering Mr. Attorney Mr. Attorney General Pray Sir Robert Sawyer you have had your time don't interrupt us sure we have as much right to be heard as you Lord Chief Iustice. You have been heard over and over again Sir Robert Sawyer already Sir Robert Sawyer My Lord I don't intend to interrupt him Mr. Solicitor General We cannot make them be quiet they will still be chopping in upon us Mr. Attorney General That is an Art that some People have always practised not to permit any body to speak but themselves But my Lord I say that those few Instances that they have produced are nothing at all to this Matter that is now upon Trial before your Lordship and this Jury nay they are Evidences against them for they are only matters transacted in Parliament which are no more to be applied to this thing that is in Controversy now than any the most remote matter that could be thought of and though they have gone so high in point of time as to the Reign of Richard the Second yet they have nothing between that and the late Kings Reign to which at last they have descended down But my Lord I say that all the talk of Richard the Seconds time is wholly out of the Case truly I do not doubt but that in Richard the Seconds time they might find a great many Instances of some such sort of Petitioning as this for our Histories tell us that at that time they had 40000 Men in Arms against the King and we know the troubles that were in that Kings Reign and how at length he was deposed but certainly there may be found Instances more applicable to the Case than those they produce as for those in King Charles the Seconds time do they any ways justifie this Petition for now they are upon justifying the words of their Petition that this power has been declared to be illegal in 1662 1672 and 1685. For what was done in 1662 do they shew any thing more than some Debates in the House of Commons And at last an Address an Answer by the King a Reply of the Commons and then the thing dies Pray my Lord is a Transaction in the House of Commons a Declaration of Parliament Sure I think no one will affirm that any thing can be a Declaration of Parliament unless he that is the Principal part Concurs who is the King for if you speak of the Court of Parliament in a Legal sense you must speak of the whole Body King Lords and Commons and a Declaration in Parliament must be by all the whole Body and that is properly an Act of Parliament Why then they come to the year 1672 where your Lordship observes that the late King did insist upon his Right for after the Dispute which was in 1662 his Majesty did issue out another Declaration and when it comes to be debated in Parliament he insists upon his Right in Ecclesiastical Matters and though his Declaration was Cancelled yet there is no formal Disclaimer of the Right My Lord after all how far these things that they have offered may work as to the point that they have debated I shall not now meddle with it nor give your Lordship any trouble about it because it is not at all pertinent to the Case in question for I do after all this time and pains that they have spent take leave to say
follow the Nature of the Fact that I need not insist upon it if the Act be unlawful the Law supplies the Malice and evil Intentions Mr. Solicit Gen. My Lord and Gentlemen of the Jury I am of Counsel in this Case for the King and I shall take leave to proceed in this Method First I shall put the Case of my Lords the Bishops and then consider the Arguments that have been used in their Defence and answer them as much as is material to be answered and then leave it to your Lordship and the Juries Consideration whether what has been said by these Gentlemen weigh any thing in this Case First my Lord I take it for granted and I think the Matter is pretty plain by this time by my Lord Presidents Evidence and their own Confession that it is not to be disputed but that this Paper was presented by these Lords to the King I think there is no great difficulty in that Matter at all but I just touch upon it because I would follow them in their own Method Then my Lord let us take this Case as it is upon the Nature of the Petition and the Evidence that they have given and then let us see whether that will justifie the thing that is done For the business of Petitioning I would distinguish and enquire Whether my Lords the Bishops out of Parliament can present any Petition to the King I do agree that in Parliament the Lords and Commons may make Addresses to the King and signifie their Desires and make known their Grievances there and there is no doubt but that is a natural and proper way of Application For in the beginning of the Parliament there are Receivers of Petitions appointed and upon Debates there are Committees appointed to draw up Petitions and Addresses but to come and deduce an Argument that because the Lords in Parliament have done thus there being such Methods of Proceedings usual in Parliaments therefore my Lords the Bishops may do it out of Parliament that is certainly a Non sequitur no such Conclusion can be drawn from those Premises My Lord I shall endeavour to lay the Fact before you as it really is and then Consider what is proper for the Court to take notice of as Legal Proof or Evidence And I take it all those Presidents that they have produced of what the Lords did and what the Commons did in Parliament is no Warrant for them to shelter themselves under against the Information here in Question Here Mr. Iust. Powel spake aside to the Lord Chief Iustice thus Mr. Iust. Powel My Lord this is strange Doctrine shall not the Subject have Liberty to Petition the King but in Parliament If that be Law the Subject is in a miserable Case Ld. Ch. Iust. Brother let him go on we will hear him out tho' I approve not of his Position Mr. Solicit General The Lords may Address to the King in Parliament and the Commons may do it but therefore that the Bishops may do it out of Parliament does not follow I heard nothing said that could have given Colour to such a thing but the Curse that has been read in 1 Elizabeth But pray my Lord let us consider that Evidence they have given they have begun with that Record in Richard the Seconds time and what is that That the King may dispeâ—…se with the Statute of Provisors till the meeting of the next Parliament and a Protestation of the Commons at the end of it whether that be an Act of Parliament that is Declaratory of the Common Law or Introductory of a new Law Non Constat and for ought appears it might be a Declaratory Act And if so it is a Proof of the Kings Prerogative of Dispensing It might be an Act in Affirmance of the Kings Prerogative as there are a great many such we very well know and generally most of the Laws in that kind are in Affirmance of the Kings power so that the Law turns as an Argument for the King Prerogative and they have given him that which will turn upon themselves so it stood in Richard the Seconds time but whether that be an Argument one way or other Conclusive is lest to your Lordship and the Jury Ay but say they there is no Execution of such a Power till very lately and the first Instance that they produce is that in the Year 1662. But your Lordship knows that before the Râ—…ign of Henry the Fourth there was great Jurisdiction assumed by the Lords in Original Causes then comes the Statute of Appeals 1 Hen. 4. which takes notice that before that time the Lords had assumed an Original Jurisdiction in all Causes and would proceed and determine them in Parliament and out of Parliament and it fell out to be so great a Grievance that it was thought necessary to make a Law against it that Appeals in Parliament should be abolished and destroyed and then comes that Law in favour of the Subject of England and that settles the bounds between the King and the Lords in a great measure before that time the Lords were grown very powerful and where there is a Power there always will be Applications and what is the effect of that Statute 1 Hen. 4. for all that we endeavour is to make things as plain can be that no further Applications no Accusations no Proceedings in any Case whatsoever be before the Lords in Parliament unless it be by Impeachment of the Commons so that there is the Salvo and the use that I make of it is this The Commons by that very Statute did abolish the Power that the Lords had arrogated to themselves and Ordered that they should not meddle with any Cause but upon the Impeachment of the House of Commons and establish the Impeachment of the Commons which is as ancient as the Parliament for that was never yet spoken against the Power of the Commons Impeaching any Person under the degree of the Prince and that is the regular legal way and so the Commons asserted their Ancient Right and whatsoever the Lords took notice of must come by Application of the Commons then Conferences were to pass between the Houses and both Houses by Address apply to the King this is the proper way and course of Parliament of which thy Lord Cook says It is known to few and practised by fewer but it is a Venareble Honourable way and this is the Course that should have been taken by my Lords here and they should have stayed till the Complaint had come from the Commons in Parliament and then it had been Regular for them to Address to the King but they were too Quick too Nimble And whereas the Statute of Hen. 4. says That no Lord whatsoever shall intermeddle with any Cause but by the Impeachment of the Commons they interpose and give their advice before their time if there be any Irregularity in Parliament or out of Parliament the Commons are to make their Complaint of it
because he wished he had such a Power this must be declared in Parliament that he had no such Power Is the Speech of the Prince a Declaration in Parliament All the Speeches that were made upon the opening of the Parliament will you say they are Declarations in Parliament Then the Chancellor or the Keeper's Speech or the Lord Privy Seals must be a Declaration in Parliament Whoever speaks the Sense of the King if he does not speak that which is Law and Right is questionable for it and several have been Impeached for so doing for they look not upon it as the King's Speech except it be according to Law Nothing can turn upon the Prince but what is Legal if it be otherwise it turns upon him that speaks it I never did hear that a Speech made by the Chancellor and I will appeal to all the Lords that hear me in it was a Declaration in Parliament Then my Lord we come to the business in 1672. which with that in 1662. and that in Breda shews That this of the King 's is not such a Novelty but has been done often before In 1672. the King was in Distress for Money being intangled in a Dutch War and wanted Supply He Capitulates with his Commons you have heard it read and upon the Commons Address he asserts it to be his Right and makes his Complaint to the Lords how the Commons had used him for when he gives them a fair Answer they Reply and there are Conferences with the Lords about it but at length it all ends in a Speech by the King who comes and tells them of his present Necessitieâ—… and so he was minded to reâ—… a little at the Instigation of the Commons and he has a good Lump of Money for it Would this amount to a Declaration in Parliament Can my Lords the Bishopâ—… fancy or imagine that this is to be imposed upon the King or upon the Court for a Declaration in Parliament Then last of all for that in 1685. in this King's time What is it The Commons make an Address to the King and Complain to his Majesty of some of his Officers in his Army that might pretend to have a Dispensation something of that Nature contrary to the Test Act And what is done upon it They make their Application to the King and the King Answers them and that is all But since it is spoken of in the Court I would take notice That it is very well known by the Case of Godding and Hales the Judgment of this Court was against the Opinion of that Address But what sort of Evidence is all this Would you allow all the Addresses of the House of Commons to be Evidence Give me leave to say it my Lord If you suffer these Votes these Copies of Imperfect Bills these Addresses and Applications of one or both Houses to the King to be Evidence and Declarations in Parliament then what will become of the Bill of Exclusion Shall any Body mention that Bill of Exclusion to be a Declaration in Parliament If so then there is Declaration against Declaration the Declaration of the Commons against the Declaration of the Lords I know not what Judgment my Lords the Bishops may be of now concerning those things of Votes and Addresses being Declarations in Parliament but I am sure they have spoken against it heretofore nay I am sure some of them have Preached against it And if my Lords the Bishops have said These are Declarations in Parliament and they are not Declarations in Parliament and if they accuse the King of having done an Illegal thing because he has done that which has been declared in Parliament to be Illegal when it was never so declared then the Consequence is very plain That they are Mistaken sometimes and I suppose by this time they believe it I dare say it will not be denied me That the King may by his Prerogative Royal issue forth his Proclamation it is as essential a Prerogative as it is to give his assent to an Act of Parliament to make it a Law. And it is another Principle which I think cannot be denied That the King may make Constitutions and Orders in Matters Ecclesiastical and that these he may make out of Parliament and without the Parliament If the King may do so and these are his Prerogatives then suppose the King does issue forth his Royal Proclamation and such in effect is this Declaration under the Great Seal in a Matter Ecclesiastical by Virtue of his Prerogative Royal and this Declaration is read in the Council and published to the World and then the Bishops come and tell the King Sir you have issued out an Illegal Declaration being contrary to what has been declared in Parliament when there is no Declaration in Parliament Is not this a Diminishing the King's Power and Prerogative in issuing forth his Declaration And making Constitutions in Matters Ecclesiastical Is not this a questioning of his Prerogative Do not my Lords the Bishops in this Case raise a question between the King and the People Do not they as much as in them lyes stir up the People to Sedition For who shall be Judg between the King and the Bishops Says the King I have such a Power and Prerogative to issue forth my Royal Proclamation and to make Orders and Constitutions in Matters Ecclesiastical and that without the Parliament and out of Parliament Say my Lords the Bishops You have done so but you have no Warrant for it Says the King Every Prince has done it and I have done no more than what is my Prerogative to do But this say the Bishops is against Law. How shall this be tryed Should not the Bishops have had the Patience to have waited till a Parliament came When the King himself tells them he would have a Parliament in November at furthest L. Ch. Iust. Pray Mr. Sollicitor come close to the business for it is very late Mr. Sol. Gen. My Lord I beg your Patience you have had a great deal of Patience with them pray spare me a little I am saying when the King himself tells them that he would have a Parliament in November at furthest yet they have no Patience to stay till November but make this Application to him Is not this raising a Question upon the King's Prerogative in issuing forth Declarations and upon the King's Power and Right in Matters Ecclesiastical And when I have said this that my Lords the Bishops have so done If they have raised a Question upon the Right of the King and the Power of the King in Matters Ecclesiastical then they have stirred up Sedition That they have so done is pretty plain and for the Consequence of it I shall appeal to the Case in the 2 Cro. 2. Iac. 1. That is a plain direct Authority for me Mr. Iust. Powel Nay Mr. Sollicitor we all very well know to deny the King's Authority in Temporals and Spirituals as by Act of
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 to be expected that I should repeat all the Speeches or the particular Facts but I will put the Jury in mind of the most Material things as well as my Memory will give me leave but I have been interrupted by so many Long and Learned Speeches and by the length of the Evidence which has been brought in in a very broken unmethodical way that I shall not be able to do so well as I would Gentlemen thus stands the Case It is an Information against my Lords the Bishops his Grace my Lord of Canterbury and the other Six Noble Lords and it is for Preferring Composing Making and Publishing and Causing to be Published a Seditious Libel the way that the Information goes is special and it sets forth That the King was Graciously pleased by his Royal Power and Prerogative to set forth a Declaration of Indulgence for Liberty of Conscience in the Third Year of his Reign and afterwards upon the 27. of April in the Fourth Year he comes and makes another Declaration and afterwards in May orders in Council that this Declaration should be Published by my Lords the Bishops in their several Diocesses and after this was done my Lords the Bishops come and present a Petition to the King in which were contained the Words which you have seen Now Gentlemen the Proofs that have been upon this you 'll see what they are the two Declarations are proved by the Clerks of the Council and they are brought here under the Great Seal a Question did arise whether the Prints were the same with the Original Declarations and that is proved by Hills or his Man that they were Examined and are the same then the Order of Council was produced by Sir Iohn Nicholas and has likewise been read to you then they come to prove the Fact against the Bishops and first they fall to proving their Hands they begun indeed a great way off and did not come so close to it as they afterwards did for some of their Hands they could hardly prove but my Lord Archbishop's Hand was only proved and some others but there might have been some Question about that Proof but afterwards it came to be proved that my Lords the Bishops owned their Hands which if they had produced at first would have made the Cause something shorter than it was The next Question that did arise was about the Publishing of it whether my Lords the Bishops had Published it and it was insisted upon That no body could prove the Delivery of it to the King it was proved the King gave it to the Council and my Lords the Bishops were called in and there they acknowledged their Hands but no body could prove how it came to the King's Hands Upon which we were all of Opinion That it was not such a Publishing as was within the Information and I was going to have directed you to find my Lords the Bishops Not Guilty But it hapned that being Interrupted in my Directions by an Honest Worthy Learned Gentleman the Kings Council took the Advantage and informing the Court that they had further Evidence for the King we staid till my Lord President came who told us how the Bishops came to him to his Office at White-hall and after they had told him their Design That they had a mind to Petition the King they asked him the Method they were to take for it and desired him to help them to the Speech of the King And he tells them he will acquaint the King with their Desire which he does and the King giving leave he comes down and tells the Bishops that they might go and speak with the King when they would and says he I have given Direction that the Door shall be opened for you as soon as you come With that the Two Bishops went away and said they would go and fetch their other Brethren and so they did bring the other Four but my Lord Archbishop was not there and immediately when they came back they went up into the Chamber and there a Petition was Delivered to the King. He cannot speak to that particular Petition because he did not Read it and that is all that he knew of the Matter only it was all done the same Day and that was before my Lords the Bishops appeared at the Council Gentlemen after this was proved then the Defendants came to their Part and these Gentlemen that were of Councel for my Lords let themselves into their Defence by notable Learned Speeches by telling you that my Lords the Bishops are Guardians to the Church and great Peers of the Realm and were bound in Conscience to take care of the Church They have Read you a Clause of a Statute made in Queen Eliz. time by which they say my Lords the Bishops were under a Curse if they did not take care of that Law. Then they shew you some Records One in Richard the Seconds time which they could make little of by reason their Witness could not Read it but it was in short a Liberty given to the King to Dispense with the Statute of Provisors Then they shew you some Journals of Parliament First in the Year 1662. where the King had Granted an Indulgence and the House of Commons Declared it was not fit to be done unless it were by Act of Parliament And they Read the King's Speech wherein he says he wish'd he had such a Power and so likewise that in 1672. which is all nothing but Addresses and Votes or Orders of the House or Discourses either the King's Speech or the Subjects Addresses but these are not Declarations in Parliament that is insisted upon by the Councel for the King That what is a Declaration in Parliament is a Law and that must be by the King Lords and Commons the other is but common Discourse but a Vote of the House or a Signification of their Opinion and cannot be said to be a Declaration in Parliament Then they come to that in 1685. where the Commons take notice of something about the Souldiers in the Army that had not taken the Test and make an Address to the King about it but in all these things as far as I can observe nothing can be gathered out of them one way or other it is all nothing but Discourses Sometimes this Dispensing Power has been allowed as in 〈◊〉 2. time and sometimes it has been denied and the King did once wave it Mr. Sollicitor tells you the Reason There was a Lump of Money in the Case But I wonder indeed to hear it come from him Mr. Soll. Gen. My Lord I never gave my Vote for Money I assure you L. Ch. Iust. But those Concessions which the King sometimes makes for the Good of the People and sometimes for the Profit of the Prince himself but I would not be thought to distinguish between the Profit of the Prince and the Good of the People for they are both one and what is the Profit of the Prince
your Lordship to reject this Plea. Sir Rob. Sawyer My Lord we are in your Judgment whether you will receive this Plea or not L. C. I. You shall have my Judgment presently but my Brothers are to speak first Mr. I. Allybone Mr. Pollixfen makes it a Question whether this Plea may be reiected or not or whether it ought to be received and the Court give their Judgment upon it Mr. Iust. Powell Truly I do not know whether the Court can reject this as 〈◊〉 frivolous Plea. L. C. I. Surely we may and frequently do Mr. Att. Gen. You do it every day it 's a frequent Motion if a frivolous Plea be put in before it be entred upon Record as a Plea the Court may refuse it if they see cause Mr. I. Allybone Truly if it may be this appears to me a very frivolous Plea. Mr. Iust. Powell I do not know how the Court can reject any Plea that the party will put in if he will stand by it as they say they will here and I cannot think this a frivolous Plea it concerning the priviledge of Peers and Lords of Parliament Mr. I. Allybone Brother Powell I would be as tender of the Priviledges of Parliament and speak with as much respect of the Priviledges of the Peerage as any body else but for the matter of the Plea truly it appears to me that the Peers are named in it only for fashion safe and it is frivolous Mr. Iust. Powell The matter of the Plea except only their being said to be Peers and Lords of Parliament was spoke to before but it was only obiter and by way of motion but now it may come before us for our Judicial Determination Mr. I. Allybone Pray let the Plea be read again Which was done Mr. Iust. Allybone This Plea is no more but that which has been denied already upon solemn debate and if it be in the power of the Court to reject any Plea surely we ought to reject this Indeed I know not what power we have to reject a Plea but if we have power this ought to be rejected Mr. Iust. Powell I declare my Opinion I am for receiving the Plea and considering of it Mr. Iust. Holloway I think as this case is this Plea ought not to be received but rejected because 't is no more than what has been denied already I am not ashamed to say That I should be very glad and ready to do all things that are consistent with my Duty to shew respects to my Lords the Bishops some of whom are my particular Friends but I am upon my Oath and must go according to the course of Law. L. C. I. We have asked and informed our selves from the Bar whether we may or can reject a Plea and truly what they have said hath satisfied me that we may if the Plea be frivolous and this being a Plea that contains no more than what has been over-ruled already after hearing what could be said on both sides I think the Court is not bound to receive the Plea but may reject it and my Lords the Bishops must plead over Mr. Att. Gen. We pray they may plead in chief Clerk. My Lord Archbishop of Canterbury is your Grace guilty of the matter charged upon you in this Information or not guilty A. B. C. Not guilty Clerk. My Lord Bishop of St. Asaph is your Lordship guilty of the matter charged upon you in this Information or not guilty Bish. of St. Asaph Not guilty Clerk. My Lord Bishop of Ely is your Lordship guilty of the matter charged upon you in this Information or not guilty Bish. of Ely. Not guilty Clerk. My Lord Bishop of Chichester is your Lordship guilty of the matter charged upon you in this Information or not guilty Bish. of Chichest Not guilty Clerk. My Lord Bishop of Bath and Wells is your Lordship guilty of the matter charged upon you in this Information or not guilty Bish. of Bath Wells Not guilty Clerk. My Lord Bishop of Peterborough is your Lordship guilty of the matter charged upon you in this Information or not guilty Bish. of Peterborough Not guilty Clerk. My Lord Bishop of Bristol is your Lordship guilty of the matter charged upon you in this Information or not guilty Bish. of Bristol Not guilty Mr. Att. Gen. My Lord I pray the Clerk may joyn Issue on the behalf of the King that so we may come to Tryal and we would have these Gentlemen take notice that we intend to try this Cause on this day fortnight and we pray liberty of the Court that we may try it at Bar. L. C. I. Are you not too hasty in that Motion Mr. Attorney Mr. Att. Gen. My Lord we should indeed make it the Motion of another day but we do now tell them this exabundanti because my Lords the Bishops are now here and will I suppose take notice that we do intend to move it another day Mr. Soll. Gen. We now give them notice that we intend to move Sir Rob. Sawyer For that you need not trouble your selves we are very desirous it should be tryed at Bar and that as soon as you please Mr. Att. Gen. Well then you take notice it will be tryed this day fortnight L. C. I. Well what shall we do with my Lords the Bishops Mr. Att. Gen. They are baylable no question of it my Lord if they please L. C. I. Then my Lords we are ready to bail you if you please Sir Rob. Sawyer We desire your Lordship would be pleased to take their own Recognizance L. C. I. What say you Mr. Attorney I think that may do well enough Mr. Att. Gen. My Lord with all my heart we will do it L. C. I. In what Penalty shall we take it Mr. Att. Gen. A 1000. I think my Lord his Grace and 500 l. apiece the rest Sir Rob. Sawyer What necessity is there for so much Mr. Att. Gen. Look you Sir Robert Sawyer to shew you that we do insist upon nothing that shall look like hardship what my Lords have been pleased to offer concerning taking their own Recognizance we agree to and what sums the Court pleases Mr. Soll. Gen. It is all one to us we leave it wholly to the Court. Sir Rob. Sawyer Only I have one thing more to beg of your Lordship on the behalf of my Lords the Bishops that you will please to order that in the Return of the Jury there may be forty eight returned Mr. Att. Gen. I tell you what we will do Sir Samuel Astry shall have the Freeholders Book if you please and shall return twenty four Sir Rob. Sawyer Eight and forty has been always the course when the Jury is returned by Sir Samuel Astry Mr. Soll. Gen. My Lord I pray the Officer may return the Jury according as is usual in Cases of this nature Mr. Att. Gen. You do admit of a Tryal at Bar Gentlemen Sir Rob. Sawyer Yes and try it when you will. L. C. I. They