Council and this is nothing but a Petition against an Order of Council and if there be an Order that commands my Lords the Bishops to do a thing that seems grievous to them surely they may beg of the King that he would not insist upon it And for this Matter they were so well satisfied about it and so far from thinking that it was any part of a Libel that they left it out of the Information and so have made a deformed and absurd Story of it without Head or Tall a Petition directed to no Body and for nothing it being without both Title and Prayer so that this is plain is was lawful to Petition Then my Lord the next Thing is the Reasons which my Lords the Bishops come to acquaint the King with why in Honour and Conscience they cannot comply with and give obedience to this Order and the Reasons my Lord are two The first Reason that is assigned is the several Declarations that have been in Parliament several of which are mentioned that such a Power to dispense with the Law is against Law and that it could not be done but by an Act of Parliament for that is the meaning of the word Illegal that has no other signification but unlawful the same word in point of signification with the word Illicitè which they have used in their Information a thing that cannot be done by Law and this they are pleased to tell the King not as declaring their own Judgments but what has been declared in Parliament though if they had done the former they being Peers of the Realm and Bishops of the Church are bound to understand the Laws especially when as I shall come to show you they are made Guardians of these Laws and if any thing go amiss and contrary to these Laws they ought to inform the King of it My Lord the next thing is Because it is a Thing of so great moment and the Consequences that will arise from their publishing of this Declaration and that too my Lord for the latter I shall begin first with there can be no Question about or any pretence that this is libellous or false for certainly it is a Case of the greatest Consequence to the whole Nation that ever was therefore it cannot be false or libellous to say so My Lord I would not mention this for I am loth to touch upon things of this Nature had not the Information it self made it the very Gift of the Charge for the Information if there be any thing in it says that it was to diminish the King's Prerogative and Regal Power in publishing that Declaration Now my Lord what the Consequence of this would be and what my Lords the Bishops meant by saying It was a Cause of great Moment will appear by considering that which is the main Clause in the Declaration at which my Lords the Bishops scrupled which is the main Stumbling-block to my Lords and has been to many honest Men besides and that is this We do likewise declare It is our Royal Will and Pleasure that from hence-forth the Execution of all and all manner of Penal Laws in Matters Ecclesiastical for not coming to Church or not receiving the Sacrament or for any other Nonconformity to the Religion Established or for or by Reason of the Exercise of Religion in any manner whatsoever be immediately suspended and the further execution of the said Penal Laws and every of them is hereby suspended Now my Lord this Clause either is of some legal â—…ect and Signification or it is not If Mr. Attorny or the King's Council do say it is of no Effect in Law then there is no harm done then this Petition does no ways impeach the King's Prerogative in saying it has been declared in Parliament according as the King's Counsel do agree the Law to be But my Lord if it have any Effect in Law and these Laws are suspended by virtue of this Clause in the Declaration then certainly my Lord it is of the most dismal Consequence that can be thought of and it behoved my Lords who are the Fathers of the Church humbly to represent it to the King. For my Lord by this Declaration and particularly by that Clause in it not only the Laws of our Reformation but all the Laws for the preservation of the Christian Religion in general are suspended and become of no force if there be such an Effect in Law wrought by this Declaration as is pretended that is that the Obligation of Obedience to them ceaseth the Reason of it is plain the words cannot admit of such a Quibble as to pretend that the Execution of the Law is not the Suspending of the Law and that the Suspending the Execution of the Law is not a Suspending of the Law for we all know the Execution of every Law in its primary Intent is Obedience to it that of the Penalty comes in by way of Punishment and Recompence for their Disobedience Now my Lord if this Declaration does discharâ—… the King's Subjects from their Obedience to and the Obligation from those Laws then pray my Lord where are we Then all the Laws of the Reformation are suspended and the Laws of Christianity it self by those latter words 〈◊〉 or for or by reason of Religion in any manner whatsoever so that it is not confined to the Christian Religion but all other Religions are permitted under this Clause And thus all our Laws for keeping the Sabbath and which distinguish us from Heathens will be suspended too My Lord this is such an Inconvenience as I think I need name no more and it is a very natural Confequence from that Clause of the Declaration it discharges at once all Ministers and Clergy-men from performing their Duty in reading the Service of the Church it discharges their Hearers from attending upon that Service When a Law is suspended the Obligation thereof is taken away and those that before thought themselves bound to obey now conclude they are not so obliged and what a mischief that will be to the Church which is under the Care of my Lords the Bishops your Lordship will easily apprehend These things my Lord I only mention to shew the great and evil Consequences that apparently follow upon such a Declaration which made my Lords the Bishops decline obeying the Order and put them under a necessity of applying thus to the King to acquaint him with the Reasons why they could not comply with his Commands to read this Declaration to the People because the Consequences thereof were so great it tending naturally to lead the People into so great an Error as to believe those Lawâ—… were not in Force when in Truth and Reality they are still in Force and continue to oblige them And that being the second Reason in this Petition I come next to consider it to wit thâ—… the Parliament had often declared this pretended Power to be Illegal and for that we shall read the several
then and in that first Attempt it was so far from being acknowledged that it was taken notice of in Parliament and declared against So it was in the Years 1662. and 1672. In the Year 62. where there was but the least Umbrage given of such a Dispensing Power although the King had declared in his Speech to the Parliament that he wished he had such a Power which his Declaration before seemed to assume the Parliament was so jealous of this that they immediately made their Application to His Majesty by an Address against the Declaration and they give Reasons against it in their Address One in particular was That the King could not dispense with those Laws without an Act of Parliament There was another Attempt in 1672. and then after His Majesty had in his Speech mentioned his Declaration to them the Parliament there again particularly the House of Commons did humbly address to His Majesty setting forth that this could not be done by Law without an Act of Parliament And your Lordship by and by upon reading the Record will be satisfied what was the Event of all this His Majesty himself was so far pleased to concurr with them in that Opinion that he cancell'd his Declaration tore off the Seal and caused it to be made known to the House of Lords by the Lord Chancellor who by His Majesty's Command satisfied the House of it that His Majesty had broken the Seal and cancell'd the Declaration with this further Declaration which is enter'd in the Records of the House That it should never be drawn into Example or Consequence My Lord The Matter standing thus in respect to the King's Prerogative and the Declarations that had been made in Parliament consider next I beseech you how far my Lords the Bishops were concerned in this Question humbly to make their Application to the King. My Lords the Bishops lying under a Command to publish this Declaration it was their Duty as Peers of the Realm and Bishops of the Church of England humbly to apply themselves to His Majesty to make known their Reasons why they could not obey that Command and they do it with all Submission and all Humility representing to His Majesty what had been declared in Parliament and it having been so declared they could not comply with his Order as apprehending that this Declaration was founded upon that which the Parliament declared to be illegal and so His Majesty's Command to publish this Declaration would not warrant them so to do This they did as Peers and this they had a Right to do as Bishops humbly to advise the King. For suppose my Lord which is not to be supposed in every Case nor do I suppose it in this but suppose that there might be a King of England that should be mis-led I do not suppose that to be the Case now I say but I know it hath been the Case formerly that the King should be environed with Counsellors that had given him evil Advice it has been objected as a Crime against such evil Counsellors that they would not permit and suffer the Great Men of the Kingdom to offer the King their Advice How often do we say in Westminster-Hall That the King is deceived in his Grant There is scarce a Day in the Term but it is said in one Court or other but it was never yet thought an Offence to say so And what more is there in this Case My Lord If the King was mis-informed or under a Mis-apprehension of the Law my Lords as they are Peers and as they are Bishops are concerned in it and if they humbly apply themselves to the King and offer him their Advice where is the Crime My Lord These noble Lords the Defendants had more than an ordinary Call to this for besides the Duty of their Office and the Care of the Church that was incumbent on them as Bishops they were here to become Actors for they were by that Order of Council commanded themselves to publish it and to distribute it to the several Ministers in their several Diocesses with their Commands to read it Therefore they had more than ordinary Reason to concern themselves in the Matter Next We are to consider my Lord in what manner this was done They make their Application to the King by an humble Petition with all the Decency and Respect that could be shewn asking leave first to approach his Person and having leave they offer'd my Lord President the Matter of their Petition that nothing might seem hard or disrespectful or as if they intended any thing that was unfit to be avowed When they had taken all this Care in their Approach and begging leave for it they come secretly to the King in private when he was all alone and there they humbly present this Petition to His Majesty Now how this can be called the Publication of a malicious and seditious Libel when it was but the Presenting of a Petition to the King alone And how it can be said to be with an Intent to stir up Sedition in the People against His Majesty and to alienate the Hearts of his People from him when it was in this private manner delivered to him himself only truly I cannot apprehend My Lord I hope nothing of this can be thought an Offence If the Jury should think that there has been Evidence sufficient given to prove that my Lords the Bishops did deliver this Paper to the King yet that is not enough to make them guilty of this Information unless this Paper be likewise found to be in Diminution of the King 's Royal Prerogative and Regal Authority in dispensing with and suspending of all Laws without Act of Parliament Unless it be found to be a Libel against the King to tell him That in Parliament it was so and so declared And unless the presenting this by way of Petition which is the Right of all People that apprehend themselves aggrieved to approach His Majesty by Petition be a Libelling of the King And unless this humble Petition in this manner presented to the King in private may be said to be a malicious and seditious Libel with an Intent to stir up the People to Sedition Unless all this can be found there is no Man living can ever find my Lords the Bishops guilty upon this Information Therefore my Lord we will go on and make out this Matter that we have opened to your Lordship if Mr. Attorney and Mr. Sollicitor think fit to argue the Points that we have opened Mr. Pollixfen Pray my Lord spare me a Word on the same Side For the first Point It is a Point of Law whether the Matter contained in this Petition be a Libel The King's Council pretend it is so because it says the Declaration is founded upon a Power the Parliament has declared to be illegal But we say that whatsoever the King is pleased to say in any Declaration of his it is not the King 's saying of it that makes
Lord Devonshire that was an express Breach of the Peace tho' it was debated and disputed then so that I take it these Noble Lords cannot be charged with this Information because they do not come in by Legal Process and unless they can shew me any Case where a Peer did ever come in upon such a Commitment and answered to an Information upon that Commitment it must certainly be allowed not to be the Legal Course though if such a Precedent could be shewn that past sub Silentio without debate or solemn determination that would not do nor could bind the rest of the Peers If one man would lose a particular Benefit he has all the whole Body must not lose it and the benefit is not small of Time to make his Defence of Imparling of taking a Copy of the Indictment and preparing himself to plead as his Case will bear and indeed a common person has used to have these priviledges tho in some Cases of late they have taken the other Course and if a Capias went out which We say cannot go against a Lord and the Party were brought in he was to answer immediately Now my Lord I take it That the Priviledges of Peers is in all times the same with the Parliamentary Priviledge in Parliament time which reacheth to Informations as well as other Actions My Lord Cooke is express in this point in the 4. Instit. 25. If that Objection should hold good that every Information being Contra Pacem that should be a Breach of the Peace then as I said before priviledge will hold in no Information which is contrary to that and all our other Books 't is only such a Breach of the Peace as for which security of the Peace may be required But further that this is a Priviledge enjoyed by the Peers Spiritual as well as Temporal I suppose will not be denied for I think they will not question but that the Bishops and Abbots that were Lords of Parliament were Peers and we find in our Books when the Court has been moved for a Capias against an Abbot if he were a Mitred Abbot and sat in the Lords House it was always said that no such Process ought to go and so it is in the case of Bishops but indeed for other Noble Men the difference is this Where it does not appear upon Record that they are Lords of Parliament there the Courts have put them to bring their Writs of priviledge but where it does appear upon Record that they are Peers the Court is to allow and take notice of their priviledge and there needs no such Writ Now that the Parliament priviledge and the priviledge of Peers as to their persons is the same appears by the form of the Writ in the Register fol. 287. Fitz Herb. Nat. Brev. 247. The Words of the Writ are these That if such a one be Sued at the Suit of another the Writ commands that a Peer out of Parliament time should have the same priviledge with those summoned by the KING to the Parliament and I know not any difference that can be put between them and it cannot be denied that all Informations whatsoever unless such as are for Breaches of the Peace for which Surety of the Peace may be required are under the Controul of the Parliament priviledge so that upon these grounds I do press that my Lords the Bishops may be discharged If there be any Information against us we are ready to enter our Appearance to answer it according to the course of the Court but if the Information be for no other thing than what is contained in the Warrant of Commitment then their persons ought to be priviledged from Commitment Mr. Pollixfen If your Lordship please to take it all together you will find it a case very well worth your consideration it being the case of all the Peerage of England Mr. Attor Gen. My Lord these Gentlemen have taken a great deal of Liberty and spent much of your time in making long Arguments and after all truly I do not know where to have them nor can understand what they would be at it seems they agree that for Treason Felony and Breach of the Peace a Peer may be Committed Ld. Ch. Iust. That is say they such a Breach of the Peace as for which Surety of the Peace may be required Mr. Attor Gen. Then all the Learning they have been pleased to favour us with is at an end for if here be any thing charged upon the Bishops for which Sureties of the Peace may be required then this is a good Commitment Ld. Ch. Iust. That they must agree upon their own Arguments Mr. Attor Gen. Can then any man in the world say that a Libel does not require Sureties of the Peace for we must now take it as it is here upon this Return How my Lords the Bishops will clear themselves of it is a Question for another time but the Warrant says they were Commited for Contriving Framing and Publishing a Seditious Libel against His Majesty and His Government Is there a greater Misdemeanour Or is there any thing on this side a Capital Crime that is a greater Offence Is there any thing that does so tread upon the Heels of a Capital Offence and comes so near the greatest of Crimes that can be Committed against the Government Not to enlarge at this time upon what the Consequences of such things may be Is there a greater Breach of the Peace than such Seditious Practices No doubt any man may be Committed for it and may be bound to find sureties for his good Behaviour Sir Robert Sawyer I say Sureties of the Peace not of the good Behaviour Mr. Soll. Gen. Pray my Lord would you consider where we are we are going towards France I think or some farther Country they have set us out to Sea and I do not see after this rate when we shall come to Land certainly these Gentlemen are mightily out of the way and would fain have us so too we are here upon a single Question as this Case stands before your Lordship upon the Return here is a Libel a Seditious Libel said to be contrived made and published against the KING and His Government by these Noble Lords the Prisoners this is the Accusation suppose this be true that is to be proved hereafter I hope they are innocent and will prove themselves so but suppose it to be true that they have made a seditious Libel against the King and His Government will any man say that this is not done Vi Armis This is a Libel with a witness nay two or three degrees more may carry it to High Treason and all the Informations that were exhibited by Sir Robert Sawyer when he was Attorney General and he exhibited a great many for Libels constantly these Words were in Vi Armis contra Pacem Bishop of Peterborough Was it so in your own Case Mr. Sollicitor Mr. Soll. Gen. Yes it was so
in my Case and you were one of them that prosecuted me for ought I know or if you did not prosecute me you preached against me or if you did not some of your Tribe did But so my Lord it was in many other Cases within time of Memory Sir Robert Sawyer has past a Complement upon me of my great Skill in Parliament matters but truly there needs no great Skill in matters where the Law is so plain a Peer they agree may be in Prison for Treason Felony or Breach of the Peace but that Breach of the Peace I say they is where the Law requires Sureties of the Peace but is there any Certainty where Sureties of the Peace shall be required and where not Then I would put this Cafe These Lords have contrived and published a Seditious Libel against the King and His Government and whether this be not such a Breach of the Peace as will require Sureties of the peace is the Question before you And it plainly appears to be so in Sir Baptist Hick's Case in Hobbart If a man write a private Letter provoking another to fight although there be no fighting this is a Breach of the peace now a Letter can do no Wrong in that kind but as it incites and stirs up to fighting which may occasion Blood-shed and I think there cannot be a greater Breach of the peace than for a man to come to the King's Face and publish a Libel against Him and yet according to their Doctrine this man shall go away and you shall not take him up but take a Subpoena against him and wait for the delay of all the ordinary process and they tell you another thing that a Capias does not lie upon an Information against the person of a Peer and that there is no precedent of any such thing but I would pray them to remember the Case of my Lord Lovelace about some three years ago for breaking a Foot-mans Head. It seems if a man libels the King in His own presence that is not so great a matter as a little Correction to an insolent Foot-man but there he was bound in a Recognizance to appear here in this Court and accordingly he did appear and was Charged with an information and as to that precedent I do believe Sir Robert Sawyer and Mr. Finch won't contradict me this was in the first year of this King There was likewise my Lord of Pembrooke's Case who went to a disorderly House and there frighted some people and we moved the Court and had an Attachment against him for a misdemeanour and he was glad to Compound the thing or it had not ended so soon as it did and yet if a Lord comes to the King's Person and affronts Him to his very Face will not an Attachment lie against him for it Certainly it will. My Lord we have gone out of the way too much already and these Gentlemen will lead us farther but we hope your Lordships will reduce us to the methods of the Law Here is an Information which we desire may be read if they have any thing to plead to it their time for that will come after it is read if they think they have been illegally imprison'd it appears plainly upon this Return who they were that did Commit them here are a great many Noble Lords to Answer an Action of false imprisonment if these Lords think fit and may have these Learned Gentlemen that are very well able to advise them what they should do in it Sir Robert Sawyer We pray your Lordships Judgment whether the Cases put by Mr. Sollicitor are like our Case Mr. Soll. Gen. They are as like as Sir Robert Sawyer is to Mr. Attorney that was Sir Robert Sawyer Those Cases are of apparent Breaches of the peace so likewise was my Lord of Devonshire's Case but certainly that was not at all like this Mr. Finch With your Lordships Favour I would add but one Word and I would repeat nothing of what has been said all that I shall say is this There is a great deal of Difference between an Actual Breach of the Peace and that which in the bare Form of an Information is a Breach of the Peace by Construction of Law it being contra pacem Suppose it be laid that a man did vi armis speak Words will that make the Words a Breach of the peace Mr. Soll. Gen. It must be vi armis and certainly is a Breach of the peace Mr. Finch If a man write a Petition are the pen and ink that he uses the Arms Mr. Soll. Gen. My Lord I hope Mr. Finch remembers what I heard him say in Algernoon Sidney's Case scribere est agere Mr. Finch I think it is so Mr. Sollicitor but every Action is not a Breach of the peace Ld. Ch. Iust. We let my Brothers deliver their Opinions I will give you mine Mr. Iust. Allyb. The single Question now is Whether or no that which Mr. Sollicitor was pleased to name as the Crime and lay it to the Charge of my Lords the Bishops that is a seditious Libel be a Breach of the peace I do confess that there is little of Argument to be drawn from Forms of Indictments and I shall put no great stress upon the words vi â—…mit where the Fact will not come near it but if a Commitment may ensue as they seem to agree wherever surety of the peace may be required nothing seems more important to me than that surety of the peace should be required where there is any thing of Sedition in the Case and wherever there is a Seditions Act I cannot tell how to make any other Construction of it but that it is an Actual Breach of the peace that is my Opinion Mr. Iust. Powell I am of the same opinion in this point too as I was in the other point before It was a matter of great consequence I thought upon the former point but now it appears to me to be of far greater consequence than it did at first for here all the Great High and Noble Peers of England are concerned in it as to theâ—… priviledge Our Predecessors in this Court heretofore would not determine the priviledges of the Peers but left them to themselves to make what Judgment they pleased of them I think truly 't is a thing of that weight that it may be very fit for the Court to take time to consider of it and I declare for my own part I will not take upon me to deliver â—…y Opinion in a matter of this Consequence before I have Consulted all the Books that can give me any Light in the Case Mr. Iust. Allybone Brother Powell I am not determining limitting or cramping the priviledge of Peers but I am only considering whether or no a seditious Libel be a breach of the Peace 'T is agreed to be on all hands a breach of the Peace Is there any thing that will require Sureties of the Peace to be
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
it to be Law. Now we say This Declaration under the Great Seal is not agreeable to the Laws of the Land and that for this Reason Because it does at one Blow set aside all the Law we have in England My Lord If this be denied we must a little debate this matter for they are almost all Penal Laws not only those before the Reformation but since upon which the whole Government both in Church and State does in a great measure depend Especially my Lord in Matters of Religion they are all Penal Laws For by the Act of Uniformity which my Lords the Bishops are sworn to observe and adjured by an express Clause in the Act No Man is to preach unless he be Episcopally ordained no Man is to preach without a Licence If all this be set aside I confess then it will go very far into the whole Ecclesiastical Government If this be denied we are ready to argue that too L. C. I. They are to do so still Mr. Pollixfen My Lord I am sure the Consequence is otherwise if this Declaration signifie any thing And if it be the Will of the King my Lord the Will of the King is what the Law is If so be the King 's Will be not consonant to the Law it is not obliging My Lord The Cases that we have had of Dispensations are all so many strong Authorities against a general or particular Abrogation My Lord that is a Matter of Law which if it fall out to be any way doubtful it will be fit to have it debated and setled If they will say that the Penal Laws in Matters Ecclesiastical can be abrogated or nulled or made void pro tempore or for Life without the meeting of the King and People in Parliament I must confess they say a great thing as it is a Point of great Concern but I think that will not be said And all that has been ever said in any Case touching Dispensations proves quite the contrary and asserts what I affirm For Why should any Man go about to argue that the King may dispense with this or that particular Law if at once he can dispense with all the Law by an undoubted Prerogative This is a Point of Law which we insist upon and are ready to argue with them but we will go on with the rest of those things that we have offer'd And first we will read the Act of Uniformity made 1 Eliz. that Clause of it where they are so strictly charged to see to the Execution of that Law. This Act my Lord by the Act of Uniformity made in the Beginning of the late King's Reign is revived with all the Clauses in it relating to this Matter If then this be a Duty incumbent upon them and their Oaths require it of them and if they find that the Pleasure of the King in his Declaration is that which is not consonant to this Law what can they do Can any thing be more humble or done with a more Christian Mind than by way of Petition to inform the King in the Matter For I never thought it nor hath it ever sure been thought by any body else to be a Crime to petition the King For the King may be mistaken in the Law so our Books say and we every Day in Westminster-Hall argue against the King's Grants and say He is deceived in his Grants It is the great Benefit and Liberty which the King gives to his Subjects to argue the Legality or Illegality of his Grants My Lord When all this is done to make this to be a Libel by putting in the Words Malicious Seditious Scandalous and with an Intent to raise Sedition would be pretty hard My Lord We pray that Clause of the Statute may be read Mr. Soll. Gen. What for Mr. Pollixfen It is a general Law and therefore the Court will take notice of it and we pray the Jury may hear it read Mr. Soll. Gen. I agree it to be as Mr. Pollixfen has opened and I agree it to be as Sir Robert Sawyer has opened it Mr. S. Pemberton My Lord We shall put it upon a short Point My Lords the Bishops are here accused of a Crime of a very heinous nature as can be they are here branded and stigmatized by this Information as if they were seditious Libellers when my Lord it will in truth fall out that they have done no more than their Duty their Duty to God their Duty to the King and their Duty to the Church For in this Case that which we humbly offer to your Lordship and insist upon it as very plain is this That the Kings of England have no power to suspend or dispense with the Laws and Statutes of the Kingdom that establish our Religion That is it which we stand upon for our Defence And we say That such a Dispensing Power with Laws and Statutes is a thing that strikes at the very Foundation of all the Rights Liberties and Properties of the King's Subjects whatsoever If the King may suspend the Laws of the Land which concern our Religion I am sure there is no other Law but he may suspend And if the King may suspend all the Laws of the Kingdom what a Condition are all the Subjects in for their Lives Liberties and Properties All at Mercy My Lord The King 's Legal Prerogatives are as much for the Advantage of his Subjects as of himself and no Man goes about to speak against them But under pretence of Legal Prerogatives to extend the Power of the King to support a Prerogative that tends to the Destruction of all his Subjects their Religion and Liberties in that I think they do the King no Service who go about to do it But now we say with your Lordship's Favour that these Laws are the great Bulwark of the Reformed Religion they are in truth that which fenceth the Religion and Church of England and we have no other Humane Fence besides They were made upon a Fore-sight of the Mischief that had and might come by false Religions in this Kingdom and they were intended to defend the Nation against them and to keep them out particularly to keep out the Romish Religion which is the very worst of all Religions from prevailing among us and that is the very Design of the Act for the Tests which is intituled An Act to prevent Dangers that may happen from Popish Recusants My Lord If this Declaration should take effect what would be the End of it All Religions are let in let them be what they will Ranters Quakers and the like nay even the Roman Catholick Religion as they call it which was intended by these Acts of Parliament and by the Act of Uniformity and several other Acts to be kept out of this Nation as a Religion no way tolerable nor to be endured here If this Declaration take effect that Religion will stand upon the same Terms with the Protestant Religion Suspend those Laws and that Romish
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
be a Libel although it 〈◊〉 true that they did so deliver it First my Lord there is a little disingenuity offered to my Lords the Bishops in only setting forth part and noâ—… the whole in only reciting the Body 〈◊〉 not the Prayer But my Lord with your Lordships favour taking the Petitionary part and adding it to the other it quite alters the Nature of the thing for it may be a Complaint without seeking redress might be an 〈◊〉 â—…atter but here taking the whole together it appears to be a Complaint of a Grievance and a desire to be eased of it With your Lordships favour the Subjects have a right to Petition the King in all their Grievances so say all our Books of Law and so says the Statute of the Thirteenth of the late King They may Petition and come and deliver 〈◊〉 â—…tion under the number of ten as heretofore they might have done says the Statute so that they all times have had a right so to do and indeed if they had not it were the most lamentable thing in the World that Men must have Grievances upon them and yet they not to be admitted to seek Relief in an humble â—…ay Now my Lord this is a Petition setting forth a Grievance and praying his Majesty to give Relief And what is this Grievance It is that Command of his by that Order made upon my Lords the Bishops to distribute the Declaration and cause it to be read in the Churches And pray my Lord let us consider what the Effects and Consequences of that Distribution and Reading iâ—… It is to tell the People that they need not submit to the Act of Unifarmity noâ—… to any Act of Parliament made about Ecclesiastical Matters for they are suspended and dispensed with this my Lords the Bishops must do if they obey this Order but your Lordship sees if they do it they lie under an Anathema by the Statute of 1 Eliz. for there they are under a Curse if they do not look to the preservation and observation of that Act But this Command to Distribute and Read the Declaration whereby all these Laws are dispensed with is to let the People know they will not do what that Act requires of them Now with your Lordships favour my Lords the Bishops lying under this pressure the weight of which was 〈◊〉 grievous upon them they by Petition apply to the King to be eased of it which they might do aâ—… Subjects besides my Lord they are Peers of the Realm and were most of them sitting as such in the last Parliament where as you have heard it was declared such a Dispensation could not be and then in what a Case should they have been if they should have distributed this Declaration which was so coâ—… to their own Actings in Parliament What could they have answered for themselves had they thus contributed to this Declaration when they had themselves before declared that the King could not dispense And that was no new thing for it had been so declared in a Parliament before in two Sessions of it in the late Kings Reign within a very little time one of another and such a Parliament that were so liberal in their Aides in the Crown that a Man would not think they should go about 〈◊〉 deprive the Crown of any of its Rights it was a Parliament that did do as great services for the â—…own as â—…ver any did and therefore there is no reason to suspect that if the King 〈◊〉 had such a power they would have appeared so earnest against it But my Lord if your Lordship pleases these are not the beginnings of this matter for we have shewed you from the Fifteenth of Richard the Second that there was a power granted by the Parliament to the King to dispense with a particular Act of Parliament which argues that it could not be without an Act of Parliament And in 1662 't is said expresly that they cannot be dispensed with but by an Act of Parliament 'T is said so again in 1672 the King was then pleased to assume to himself such a power as is pretended to in this Declaration 〈◊〉 yet upon Information from his Houses of Parliament the King declared himself satisfied that he had no such power Cancelled his Declaration and promised that it should not be drawn into Consequence or Example And so the Commons by their Protestation said in Richard the Seconds time That it was a Novelty and should not be drawn into Consequence or Example Now my Lord if your Lordship pleases if this matter that was Commanded the Bishops to do were something which the Law did not allow of surely then my Lords the Bishops had all the reason in the World to apply themselves to the King in an humble manner to acquaint him why they could not obey his Commands and to seek relief against that which lay so heavy upon them Truly my Lord Mr. Attorney was very right in the opening of this Cause at first that is That the Government ought not to receive affronts no nor the Inferior Officers are not to be affronted a Justice of Peace so low a Man in Office is not for a Man to say to a Justice of Peace when he is executing his Office that he does not do right is a great Crime and Mr. Attorney said right in it But suppose a Justice of Peace were making of a Warrant to a Constable to do something that was not Legal for him to do if the Constable should Petition this Justice of the Peace and therein set forth Sir you are about to command me to do a thing which I conceive is not Legal surely that would not be a Crime that he was to be punished for for he does but seek relief and shew his Grievance in a proper way and the distress he is under My Lord this is the Bishops Case with submission they are under a distress being Commanded to do a thing which they take not to be Legal and they with all humility by way of Petition acquaint the King with this Distress of theirs and pray him that he will please to give Relief My Lord there is no Law but is either an Act of Parliament or the Common Law for an Act of Parliament there is none for such a power all that we have of it in Parliamentary Proceedings is against it and for the Common Law so far as I have read oâ—…it I never did meet with any thing of such a Nature as a Grant or Dispensation that pretended to dispense with any one whole Act of Parliament I have not so much as heard of any such thing mentioned by any of the Kings Council But here my Lord is a Dispensation that dispenses with a great many Laws at once truly I cannot take upon me to tell how many there may be forty or above for ought I know Therefore my Lord the Bishops lying under such a Grievance as this and under such a Pressure being Ordered
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
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
and a Man must not be his own Judg nor his own Carver nor must every Man create Difficulties of his own nor set upon Petitioning in this sort But there I lay my Foundation That in such a matter as this there ought to have been the Impeachment of the Commons in Parliament before these Lords could do any thing and I know nothing can be said for the Bishops more than this That they were under an Anathema under the Curse that Sir Robert Sawyer speaks of and for fear of that they took this Irregular Course But some would say Better fall into the hands of God than of Men some would say so I say I know not what they would say but these being the Methods that these Lords should have taken they should have pursued that Method the Law should have carved out their Relief and Remedy for them but they were for going by a new Fancy of their Own. My Lord the Law continued thus and was practised so till the 3. Hen. 7. where the Grievance was found that Offences in the Intervals of Parliament could not be well punished and then comes the Statute that sets up the Court of Star-Chamber and there Men were often brought to Judgment and Punishment for their Sins and though very great Power was given them yet they arrogated to themselves a greater and therefore that Court is abolished by the Statute of the 15th Car. 1. and what is the reason of abolishing that Statute Because the Star-Chamber did not keep within their bounds that the Law set them but assumed to themselves a larger Power than the Law would allow and grew very Exorbitant and very Grievous to the Subject And another reason was which the Statute of 15th Car. 1. founded it self upon because there was nothing that was brought in Judgment before that Court but might be relieved and remedied in the oridinary methods of Justice in the Courts of Westminster Hall So that upon those two Considerations because that Course was exorbitant and because all the Sins and Misdemeanours that were punished there might be punished in an ordinary way of Law in another Court and therefore there was no need of that Court and so it was abolished and the Subject was pretty safe If there was a Crime committed here a Man might come properly before your Lordship into this Court and have it punished My Lord they find fault with the Words in the Information and they say why are these Words put in Seditious Malicious If the matter be Libellous and Seditious we may Lawfully say it and it is no more than the Law speaks it results out of the Matter it self and if it be a Libellous Paper the Law says it is Maliciously and Seditiously done and these Gentlemen need not quarrel with us for so are all the Informations in all times past and 't is no more than the Vi Armis which is Common Form. It may be said How can the publishing of a Libel be said to be done Vi Armis That is only a Supposition of Law and they may as well Object to the conclusion of the Information that it was Contra Coronam Dignitatem Domini Regis if it be an Illegal thing or a Libel these are necessary Consequences it is no more than the speaking of the Law upon the Fact. But my Lord let us a little consider whether this Matter were Warrantable and whether they had any Warrant to do what was done they pretend it was done upon this Account That the King had set forth a Declaration and had Ordered them to Read it which to excuse themselves from they make this Petition or this Libel call it what you will and they use this as the main Argument That they say the King has done Illegally and they tell the King plainly so that it is Illegal for they take notice of this Declaration and say it is Illegal because it is contrary to the Declarations of Parliament in 1662 1672 and 1685. Pray my Lord let us consider a little whether there be any Declaration in Parliament that they have given Evidence of Have they read any Declaration of the Parliament in 1662 What is a Declaration in Parliament but a Bill that is passed by the King Lords and Commons That we know to be the meaning and no other if it pass the Commons it is no Declaration in Parliament nay if it pass the Lords and Commons it is not a Declaration in Parliament except it also pass the King all these things are Nullities and the Law takes no notice of them we have it in our Books over and over and no Court ought to suffer such Evidence to be given I know these Gentlemen are very well acquainted with the Authority in Fitz-Herbert's Title Parliament there was an Act that was said to be by the King and the Lords but because the Commons did not agree to it it is declared and adjudged to be a Nullity and the Court would take no notice of it and how can any Man call that a Declaration in Parliament which is only a Vote of the House of Commons or of the Lords No sure that is one of the Heads I go upon It 's not a Declaration in Parliament unless it be by Act of Parliament Indeed my Lord there is another sort of a Declaration in Parliament before the Lords as they are a Court of Judicature and that is a fair Declaration too for if any thing comes Judicially before the Lords either by Writ of Error or by natural Appeal from any of the other Courts or by Adjournment and there be any Judgment given That is a Declaration in Parliament and may be fairly so called So likewise there is another Judicial Declaration which is when any thing comes before the Lords Judicially upon an Impeachment of the Commons and they give Judgment upon that Impeachment That is a Declaration in Parliament But to say that there is any other Declaration in Parliament is to say more than these Gentlemen can make out if they will shew me any such I will submit to them and not speak a Word against my Lords the Bishops but if these Learned Gentlemen cannot shew me any such then they have not said that was true in this Petition that it was so and so declared in Parliament For let us consider what there is in this Case upon this Evidence for that in 1662. is only a Vote and an Opinion of the House of Commons and I always understood and have been told so by some of the Gentlemen of the other side that such a Vote signifies nothing But besides it seems to be a mistaken Address for they say in it That the Declaration in 1662. which they Address against was the first Declaration of that sort to suspend Laws without Act of Parliament and yet in the same breath they do take notice of the King's Declaration from Breda But here is a mighty Argument used from the King's Speech That
Function What can they do if they may not Petition Mr. Soll. Gen. I 'll tell you what they should have done Sir. If they were commanded to do any thing against their Consciences they should have acquiesced till the Meeting of the Parliament At which some People in the Court hissed Mr. Attorn Gen. This is very fine indeed I hope the Court and the Jury will take notice of this Carriage Mr. Soll. Gen. My Lord it is one thing for a Man to Submit to his Prince if the King lay a Command upon him that he cannot Obey and another thing to Affront him If the King will impose upon a Man what he cannot do he must acquiesce But shall he come and fly in the Face of his Prince Shall he say it is Illegal And that the Prince acts against Prudence Honor or Conscience And throw Dirt in the King's Face Sure that is not to be permitted that is Libelling with a Witness L. Ch. Iust. Truly Mr. Sollicitor I am of Opinion that the Bishops might Petition the King but this is not the right way of bringing it I am not of that Mind that they cannot Petition the King out of Parliament but if they may Petition yet they ought to have done it after another Manner For if they may in this Reflective way Petition the King I am sure it will make the Government very precarious Mr. Iust. Powel Mr. Sollicitor it would have been too late to stay for a Parliament for it was to have been Distributed by such a time Mr. Soll. Gen. They might have lain under it and submitted Mr. Iust. Powel No they would have run into Contempt of the King's Command without Petitioning the King not to insist upon it and if they had Petitioned and not have shewn the Reason why they could not Obey it would have been looked upon as a piece of Sullenness and that they would have been blamed for as much on the other side Mr. Serj. Baldock After so long a Debate I shall not trouble you long most things that are to be said have been said but I shall only say this in short I cannot deny nor shall not but that the Subject has a Right to Petition but I shall affirm it also he has a Duty to Obey and that in this Case the Power of the King to Dispense with Penal Laws in Matters Ecclesiastical is not a thing that is now in Question nor need we here have had these long Debates on both sides It may be perceived plainly by the Proofs that have been read that the Kings and Princes have thought themselves that they had such a Power though it may be the Parliament thought they had not and therefore the Declarations of the one or the other I shall not meddle with in this Case That Power it self which the King has as King of this Realm in Matters rather Ecclesiastical and Criminal than Matters of Property may somewhat appear by what has been read before your Lordship but all this will be nothing in our Case neither has his Majesty now depended so much upon this thing the Declaration has been read to you and what 's there said The King there says That for those Reasons he was ready to Suspend those Laws And be they Suspended Yet my Lord with this too That he refers it to and hopes to make it secure by a Parliament So that there being this it has not gone I think very far and it not having been touch'd here it is not a point of Duty in my Lords the Bishops as Bishops that 's here inquired into Whether they should have medled with this or no in this manner is the Question That the King is Supreme over all of us and has a particular Supremacy over them as Supreme Ordinary and Governor and Moderator of the Church is very plain and my Lord it is as plain that in such things as concern the Church he has a particular Power to Command them this is not unknown but very frequent and common in Matters Ecclesiastical and Matters of State It is not here a Question now whether these Declarations which they were Commanded to take Care of getting read were Legal or not Legal what Prudence there was what Honour there was what Conscience there was for their not reading it is not the Question neither But the point was the King as Supreme Ordinary of his Kingdom to whom the Bishops are Subject does in Council Order And what is it he Orders Their sending out and distributing his Declaration they were concerned in no more than that and it had been a very petty thing a small thing to send out the King's Declaration to be read by the Clergy All the Clergy were Ordered to read it but my Lords the Bishops were only Commanded to distribute it this he might do by Virtue of his Power Ecclesiastical And if this be not an Evil in it self and if it be not against the Word of God certainly Obedience was due from my Lords the Bishops active Obedience was due from them to do so much as this it was no Consent of theirs it was no Approbation of theirs of what they read that was Required So that if they had read it or another had read it by the King's Order especially if that Order be Legal they are bound to do it by Virtue of their Obedience and not to Examine more And my Lord in this Petition here they come to relieve not only themselves that were present for I speak to the Preamble as others before me have spoke to the Conclusion but they do involve the rest of the Bishops that were absent for it is in behalf of Themselves and their Brethren and all the Clergy of that Province Now that all these should joyn in the Petition is a thing very uncertain how does it construe here whether they were altogether and Consented to it or how all their Minds could be so fully known that they would be all involved in the Disobedience to this Order of the King. Then my Lord What is the thing they are greatly averse to There are Two things required in the Order The Bishops required to Distribute the Declaration to the Inferior Clergy and the Inferior Clergy are required to Read it Then their averseness must be to Distribute it and the others to Read it and so they will be involved none of whom did ever appear to have Joyned in it And then they give Reasons for their averseness and it is true Reasons might have been given and good Reasons should be given why they would not do this in Duty to His Majesty more gentle Reasons and other kind of Reasons than those that they have given L. Ch. Iust. Pray Brother will you come to the Matter before us Mr. Serj. Baldock I have almost done my Lord. Mr. Iust. Powel The Information is not for Disobedience Brother but for a Libel Mr. Serj. Baldock No Sir it is not for Disobedience but it is for
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
is always for the Good of the People but I say those Concessions must not be made Law for that is reserved in the King's Breast to do what he pleases in it at any time The truth of it is the Dispensing Power is out of the Case it is only a Word used in the Petition but truly I will not take upon me to give my Opinion in the Question to determine that now for it is not before me The only Question before me is and so it is before you Gentlemen it being a Question of Fact Whether here be a certain Proof of a Publication And then the next Question is a Question of Law indeed Whether if there be a Publication proved it be a Libel Gentlemen upon the point of the Publication I have summed up all the Evidence to you and if you believe that the Petition which these Lords presented to the King was this Petition truly I think that is a Publication sufficient if you do not believe it was this Petition then my Lords the Bishops are not Guilty of what is laid to their Charge in this Information and consequently there needs no Inquiry whether they are Guilty of a Libel But if you do believe that this was the Petition they presented to the King then we must come to Inquire whether this be a Libel Now Gentlemen any thing that shall disturb the Government or make Mischief and a Stir among the People is certainly within the Case of Libellis Famosis and I must in short give you my Opinion I do take it to be a Libel Now this being a point of Law if my Brothers have any thing to say to it I suppose they will deliver their Opinions Mr. Iust. Holloway Look you Gentlemen it is not usual for any Person to say any thing after the Chief Justice has summed up the Evidence it is not according to the Course of the Court but this is a Case of an Extraordinary Nature and there being a point of Law in it it is fit every body should deliver their own Opinion The Question is whether this Petition of my Lords the Bishops be a Libel or no Gentlemen the End and Intention of every Action is to be Considered and likewise in this Case we are to Consider the Nature of the Offence that these Noble Persons are Charged with it is for delivering a Petition which according as they have made their Defence was with all the Humility and Decency that could be So that if there was ill Intent and they were not as it is nor can be pretended they were Men of Evil Lives or the like to deliver a Petition cannot be a Fault it being the Right of every Subject to Petition If you are satisfied there was an ill Intention of Sedition or the like you ought to find them Guilty but if there be nothing in the Case that you find but only that they did deliver a Petition to save themselves harmless and to free themselves from blame by shewing the Reason of their Disobedience to the King's Command which they apprehended to be a Grievance to them and which they could not in Conscience give Obedience to I cannot think it is a Libel It is left to you Gentlemen but that is my Opinion L. Oh. Iust. Look you by the way Brother I did not ask you to sum up the Evidence for that is not usual but only to deliver your Opinion whether it be a Libel or no. Mr. Iust. Powel Truly I cannot see for my part any thing of Sedition or any other Crime fixed upon these Reverend Fathers my Lords the Bishops For Gentlemen to make it a Libel it must be False it must be Malicious and it must tend to Sedition as to the Falshood I see nothing that is offered by the King's Councel nor any thing as to the Malice It was preferred with all the Humility and Decency that became the King's Subjects to approach their Prince with Now Gentlemen the Matter of it is before you you are to Consider of it and it is worth your Consideration they tell his Majesty It is not out of aversness to pay all due Obedience to the King nor out of a want of tenderness to their dissenting Fellow Subjects that made them not perform the Command imposed upon them but they say That because they do conceive that the thing that was Commanded them was against the Law of the Land therefore they do desire his Majesty that he would be pleased to forbear to insist upon it that they should perforâ—…â—…hat Command which they take to be Illegal Gentlemen we must Consider what they say is Illegall in it they say they apprehend the Declaration is Illegal because it is founded upon a Dispensing Power which the King claims to Dispense with the Laws concerning Ecclesiastical Affairs Gentlemen I do not remember in any Case in all our Law and I have taken some Pains upon this Occasion to look into it that there is any such Power in the King and the Case must turn upon that in short If there be no such Dispensing Power in the King then that can be no Libel which they presented to the King which says that the Declaration being founded upon such a pretended Power is Illegal Now Gentlemen this is a Dispensation with a Witness it amounts to an Abrogation and utter Repeal of all the Laws for I can see no difference nor know of none iâ—… Law between the King's Power to Dispense with Laws Ecclesiastical and his Power to Dispense with any other Laws whatsoever If this be once allowed of there will need no Parliament all the Legislature will be in the King which is a thing worth Considering and I leave the Issue to God and your Consciences Mr. Iust. Allybone The single Question that falls to my share is to give my Sense of this Petition whether it shall be in Construction of Law a Libel in it self or a thing of great Innocence I shall endeavour to express my self in as plain Terms as I can and as much as I can by way of Proposition And I think in the first place That no Man can take upon him to write against the actual Exercise of the Government unless he have leave from the Government but he makes a Libel be what he writes true or false for if once we come to impeach the Government by way of Argument 't is the Argument that makes it the Government or not the Government So that I lay down that in the first place That the Government ought not to be impeached by Argument nor the Exercise of the Government shaken by Argument because I can manage a Proposition in it self doubtful with a better Pen than another Man This say I is a Libel Then I lay down this for my next Position That no private Man can take upon him to write concerning the Government at all for what has any private Man to do with the Government if his Interest be not stirred or
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
given upon the doing of it For there Sir Robert Sawyer has laid the Foundation of his distinction and if that shall draw any person under a Commitment then say I in my Judgment wherever there is a seditious Libel there is that which is an actual breach of the Peace for I am sure there is that which is sufficient to require Sureties of the Peace I controvert not the right of the Peers one way or other but only declare my opinion That this is a fact that comes within the Rule laid down by them That what will require Sureties of the Peace is a breach of the Peace Mr. Iust. Holloway God forbid that in a Case of this Nature any one should take upon him here to say that every Misdemeanour were a breach of the Peace I say not so but certainly there are some such Misdemeanours as are breaches of the Peace and if here be such a Misdemeanour before us then it is acknowledged that even in Parliament time a priviledged person might be Committed for it For in Treason Felony and breach of the Peace priviledge does not hold I will not take upon me as my Brother said to determine concerning the priviledge of the Peers it is not of our Cognizance nor have we any thing to do either to enlarge or confine priviledge nor do we determine whether this be such a Libel as is charged in the Information that will come in question another time but certainly as this Case is the Information ought to be read and my Lords ought to appear and plead to it Ld. Ch. Iust. Certainly we are all of us here as tender of the priviledges of Peers as any in the World can be and as tender as we would be and ought to be in trying any man's right it becomes us to do it with great respect and regard to my Lords the Bishops and therefore I would be as careful if that were the question before me to consider very well before I give my opinion as ever I was in my life But when I see there can come no mischief at all to the priviledges of the Peers by what is agreed on all hands I think I may very justly give my opinion for here is the question Whether the fact charged in the Warrant be such a Misdemeanour as is a breach of the Peace and the words of the Warrant which is now upon the Record being such as have been recited I cannot but think it is such a Misdemeanour as would have required Sureties of the Peace and if Sureties were not given a Commitment might follow and therefore I think the Information must be read Mr. Attor Gen. We pray the Clerk may read it Clerk reads Middlesex ss Memorand That Sir Thomas Powys Knight Attorney General of our Lord the KING who for our said Lord the KING in this behalf Sues comes in his own person here 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 for our said Lord the KING gives the Court here to understand and be informed that our said Sovereign Lord the KING out of His Signal Clemency Mr. Soll. Gen. Read it as it is in Latin. Bish. of Peterborough My Lord We desire it may be read in English for we don't understand Law-Latin Mr. Soll. Gen. No my Lords the Bishops are very learned Men we all know pray read it in Latin. Clerk reads Memorundum Quod Thomas Powys Miles Attornatus Domini Regis nunc Generalis qui pro eodem Domino Rege in hac parte sequitur in proprâ—…a Persona sua venit hic in Curia dict' Domini Regis coram ipso Rege apud Westmonasterium Die Veneris proxime post crastinum Sanctae Trinitatis isto eodem â—…ermino pro eodem Domino Rege Dat Curiae hic intelligi informari quod dictus Dominus Rex nunc ex insigni Clementia benigna Intentione suis erga Subdâ—…os suâ—…s Regni â—…ui Angliae per Regiam suam Praerogativam quarto Die Aprilis Anno Regni Dict' Domini Regis nunc Tertio apud Westmonasterium in Comitatu Middlesexiae Declarationem suam Intitulatam His Majesties Gracious Declaration to all his Loving Subjects for Liberty of Conscience gerentem Datum eisdem Die Anno Magno Sigillo suo Angâ—…ae Sigiâ—…dtim publicavit in qua quidem Declaratione continetur IAMES R. IT having pleased Almighty GOD not only to bring Us to the Imperial Crowns of these Kingdoms through the greatest difficulties but to preserve Us by a more than ordinary Providence upon the Throne of Our Royal Ancestors There is nothing now that We so earnestly desire as to Establish Our Government on such a Foundation as may make Our Subjects happy and Unite them to Us by Inclination as well as Duty which We think can be done by no means so effectually as by Granting to them the Free Exercise of their Reilgion for the time to come and add that to the perfect enjoyment of their property which has never been in any case invaded by Us since Our coming to the Crown which being the two things men value most shall ever be preserved in these Kingdoms during Our Reign over them as the truest methods of their Peace and Our Glory We cannot but heartily wish as it will easily be believed that all the People of Our Dominions were Members of the Catholick Church yet We humbly thank Almighty GOD it is and hath of long time been Our constant Sense and Opinion which upon diverse occasions We have declared that Conscience ought not to be constrained nor People forced in matters of meer Religion It has ever been directly contrary to Our Inclination as We think it is to the Interest of Government which it destroys by spoiling Trade depopulating Countries and discouraging Strangers and finally that it never obtained the end for which it was imployed And in this We are the more Coâ—…medi by the Reflections We have made upon the conduct of the four last Reigns For after all the frequent and pressing endeavours that were used in each of them to reduce this Kingdom to an exact Conformity in Religion it is visible the success has not answered the design And that the difficulty is invincible We therefore out of Our Princely Care and Affection unto all Our Loving Subjects that they may live at ease and quiet and for the increase of Trade and encouragement of Strangers have thought fit by Virtue of Our Royal Prerogative to issue forth this Our Declaration of Indulgence making no doubt of the Concurrence of Our two Houses of Parliament when we shall think it convenient for them to meet In the first place we do Declare that We will Protect and Maintain Our Arch-bishops Bishops and Clergy and all other Our Subjects of the Church of England in the Free Exercise of their Religion as by Law Established and in the quiet
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
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
a scandalous matter but it only contains their Reasons whereby they would satisfy his Majesty why they cannot comply in a Concurrence with his Majesty's Pleasure and therefore they humbly beseech the King and beg and request him as the words of it are that his Majesty would be pleased not to insist upon their distributing and reading of this Declaration so the Petitioners on behalf of themselves and the whole Clergy of England beg of the King that he would please not to insist upon it Gentlemen you may observe it that there is nothing in this Petition that contains any thing of Sedition in it and it would be strange this Petition should be Felo de se and by one part of it destroy the other it is laid indeed in the Information that it was with intent and purpose to diminish the King's Royal Authority but I appeal to your Lordship the Court and the Jury whether there be any one word in it that any way touches the King's Prerogative or any tittle of Evidence that has been given to make good the Charge It is an Excuse barely for their non-Complyance with the King's Order and a begging of the King with all Humility and Submission that he would be pleased not to insist upon the reading of his Majesty's Declaration upon these grounds because the Dispensing Power upon which it was founded had been several times in Parliament declared to be against Law and because it was a Case of that Consequence that they could not in Prudence Honour or Conscience concur in it My Lord Mr. Attourny has been pleased to charge in this Information that this is a false malicious and seditious Libel both the falsity of it and that it was malicious and seditious are all Matters of Fact which with Submission they have offered to the Jury no proof of and I make no question but easily to demonstrate the quite contrary For my Lord I think it can be no question but that any Subject that is Commanded by the King to do a Thing which he conceives to be against Law and against his Conscience may humbly apply himself to the King and tell him the Reason why he does not that thing he is commanded to do why he cannot concur with his Majesty in such a Command My Lord that which Mr. Attorney did insist upon in the beginning of this Day and he pretended to cite some Cases for it was that in this Case my Lords the Bishops were not sued as Bishops nor prosecuted for their Religion truly My Lord I do not know what they are sued for else the Information is against them as Bishops it is for an Act they did as Bishops and no otherwise and for an Act they did and do conceive they lawfully might do with relation to their Ecclesiastical Polity and the Government of their People as Bishops The next thing that Mr. Attorney offered was that it was not for a Non-feasance but for a Feasance it is true my Lord it is for a Feasance in making of the Petition but it was to excuse a Non-feasance the not reading according to the Order and this sure was lawful for all the Bishops as Subjects to do and I shall shew it was certainly the duty of my Lords the Bishops or any Peer of the Realm to do the same in a like Case It was likewise said they were prosecuted here for affronting the Government and intermedling with Matters of State but I beg your Lordship and the Jury to consider whether there is one tittle of this mentioned in the Petition or any Evidence given of it the Petition does not meddle with any thing of any Matter of State but refers to an Ecclesiastical Matter to be executed by the Clergy and to a Matter that has relation to Ecclesiastical Causes so that they were not Busybodies or such as meddled in Matters that did not relate to them but that which was properly within their Sphere and Jurisdiction But after all there is no Evidence nor any sort of Evidence that is given by Mr. Attorney that will maintain the least tittle of this Charge and how he comes to leave it upon this sort of Evidence I cannot tell all that it amounts to is That my Lords the Bishops being greived in this manner made this Petition to the King in the most private and respectful manner and for him to load it with such horrid black Epithets that it was done Libellously Maliciously and Scandalously and to oppose the King and Government 't is very hard 't is a Case of a very extraordinary Nature and I believe my Lords the Bishops cannot but conceive a great deal of trouble that they should lie under so heavy a Charge and that Mr. Attorney should draw so severe an Information against them when he has so little Proof to make it out My Lord by what we have to say to it we hope we shall give your Lordship and the Jury Satisfaction that we have done but our Duties supposing here has been a sufficient Evidence of the Fact given which we leave to your Lordship and the Jury My Lord we say in short That this Petition is no more than what any Man if he be Commanded to do any thing might humbly do it and not be guilty of any Crime And my Lord as to the Matter of our Defence it will consist of these Heads First We shall Consider the Matter of this Petition Secondly The Manner of the delivering it according as they have given Evidence here and Thirdly the Persons that have delivered this Petition And we hope to make it appear beyond all question that the Matter contained in this Petition is neither false nor contrary to Law but agreeable to all the Laws of the Land in all Times We shall likewise shew you though that appear sufficiently to you already that the Manner of delivering it was so far from being Seditious that it was in the most secret and private manner and with the greatest Humility and Duty imaginable And then as to the Persons we shall shew you that they are not such as Mr. Attorney says who meddle with Matters of State that are of out their Sphere but they are Persons concerned and concerned in Interest in the Case to make this humble application to the King. And when we have proved all this Matter you will see how strangely we are blackned with Titles and Epithets which we no ways deserve and of which God be thanked there is no Proof For my Lord for the Matter of the Petition we shall consider two things The First is The Prayer which is this They humbly beg and desire of the King on behalf of themselves and the rest of the Clergy that he would not insist upon the Reading and Publishing of this Declaration Surely my Lord there is nothing of Falsity in this nor any thing that is contrary to Law or unlawful for any Man that is pressed to any thing especially by an Order of
Records in Parliament mentioned in their Petition and produce several Ancient Records of former Parliaments that prove this Point and particularly in the Time of Richard the Second concerning the Statute of Provisors where there were particular Dispensations for that Statute the King was enabled to do it by Act of Parliamentâ—… and could not do it without L. C. Iust. Pray Sir Robert Sawyer go to your Proofs and reserve your Arguments till afterwards Sir Rob. Sawyer My Lord I do but shortly mention these things so that my Lord as to the Matter of this Petition we shall shew you that it is true and agreeable to the Laws of the Land. Then my Lord as to the manner of delivering it I need say no more but that it is plain from their Evidence that it was in the most private and humble manner And as my Lord President said Leave was asked of the King for them to be admitted to present it Leave was given and accordingly they did it We come then my Lord to the third thing the Persons these noble Lords and we shall shew they are not Busie-Bodies but in this Matter have done their Duty and medled with their own Affairs That my Lord will appear First By the general Care that is reposed in them by the Law of the Land They are frequently in our Books called the King's Spiritual Judges they are intrusted with the Care of Souls and the Superintendency over all the Clergy is their principal Care. But besides this my Lord there is another special Care put upon them by the express Words of an Act of Parliament for over and above the general Care of the Church by virtue of their Offices as Bishops the Act of 1 Eliz. cap. 2. makes them special Guardians of the Law of Uniformity and of that other Law in His Late Majesty's Reign where all the Clauses of that Statute of 1 Eliz. are revived and made applicable to the present State of the Church of England Now in that Statute of 1 Eliz. there is this Clause And for the due Execution hereof the Queen 's Most Excellent Majesty the Lords Spiritual and Temporal and all the Commons in this present Parliament assembled do in God's Name earnestly require and charge all the Archbishops and Bishops and other Ordinaries that they do endeavour themselves to the utmost of their Knowledges that the due and true Execution hereof may be had throughout their Diocesses and Charges as they will answer before God for such Evils and Plagues wherewith Almighty God may justly punish his People for neglecting this good and wholsome Law. This is the Charge that lies upon the Bishops to take care of the Execution of that Law and I shall pray by and by that it may be read to the Jury Mr. Soll. Gen. That is very well indeed To what purpose Sir Rob. Sawyer So that my Lord by this Law it is plain that my Lords the Bishops upon pain of bringing upon themselves the Imprecation of this Act of Parliament are obliged to see it executed and then my Lord when any thing comes under their Knowledge especially if they are to be Actors in it that has such a tendency to destroy the very Foundations of the Church as the Suspension of all the Laws that relate to the Church must do it concerns them that have no other Remedy to address the King by Petition about it For that Mr. Attorney my Lord has agreed That if a proper Remedy be pursued in a proper Court for a Grievance complained of though there may be many hard Words that else would be scandalous yet being in a regular Course they are no Scandal And so it is said in Lake's Case in my Lord Hobbart My Lord we must appeal to the King or we can appeal to no body to be relieved against an Order of Council with which we are aggrieved and it is our Duty so to do according to the Care that the Law hath placed in us Besides my Lord the Bishops were commanded by this Order to do an Acâ—… relating to their Ecclesiastical Function to distribute it to be read by their Clergy And how could they in Conscience do it when they thought part of the Declaration was not according to Law Pray my Lord What has been the reason of His Majesty's consulting of his Judges And if His Majesty or any the great Officers by his Command are about to do any thing that is contrary to Law was it ever yet an Offence to tell the King so I always look'd upon it as the Duty of an Officer or Magistrate to tell the King what is Law and what is not Law. In Cavendish's Case in the Queen's time there was an Office granted of the Retorn of the Writs of Supersedeas in the Court of Common Pleas and he comes to the Court and desires to be put into the possession of the Office The Court told him They could do nothing in it but he must bring his Assize He applies to the Queen and she sends under the Privy Seal a Command to sequester the Profits and to take Security to answer thâ—… Profits as the Judgment of the Law should go But the Judges there return an Answer That it was against Law and they could not do it Then there comes a second Letter reciting the former and commanding their Obedience The Judges returned for Answer They were upon their Oaths and were sworn to keep the Laws and would not do it My Lord The like was done in the time of my Lord Hobbart We have it reported in Anderson in a Case where a Prohibition had gone There came a Message from Court that a Consultation should be granted and that was a Matter wherein there were various Opinions whether it was Ex Necessitate or Discretionary but there they return'd That it was against Law for any such Message to he sent Now here my Lord is a Case full as strong My Lords the Bishops were commanded to do an Act which they conceived to be against Law and they decline it and tell the King the reason and they have done it in the most humble manner that could be by way of Petition If they had done as the Civil Law terms it Rescribere generally that had been lawful but here they have done it in a more respectful manner by an humble Petition If they had said the Law was otherwise that sure had been no Fault but they do not so much as that but they only say it was so declared in Parliament and they declare it with all Humility and Dutifulness So that my Lord if we consider the Persons of the Defendants they have not acted as Busie-Bodies and therefore as this Case is when we have given our Evidence here will be an Answer to all the Implications of Law that are contained in this Information For they would have this Petition work by Implication of Law to make a Libel of it but by what I have said it will appear
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
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
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
Parliament is High Treason Mr. Sol. Gen. I carry it not so far Sir we have a Gracious Prince and my Lords the Bishops find it so by this Prosecution But what says that Case It is Printed in 3 Books in Noy 100. in Moor 375. and in Mr. Just. Cro. 371. says that Case The King may make Orders and Constitutions in Matters Ecclesiastical Mr. Iust. Powel But how will you apply that Case to this in hand Mr. Sollicitor Mr. Sol. Gen. I will apply it by and by Sir. I would first shew what it is there is a Convention of the greatest Men in the Kingdom Mr. Iust. Powel Indeed Mr. Sollicitor you shoot at Rovers Mr. Sol. Gen. There iâ—… the Lord Privy Seal the Archbishop of Canterbury and a great many others it is the greatest Aâ—…embly we meet with in our Books and all of them are of this Opinion That the King may make Orders and Constitutions in Matters Ecclesiastical My Lord there is another Authority and that is from the Statute 1 Eliz. which erected the High Commission Court and that Statute was not Introductory of a New Law but Declaratory of the Old Law The King by his Proclamation declares his Sense to do such and such a thing the Court and all Persons there give their Judgment and Opinion upon that Statute That they looked upon it as the grossest thing and the soulest affront to the Prince for any Man to bring into Question that Power of the King in Matters Ecclesiastical 't is said to be a very High Crime Why then my Lord what is done in this Case Mr. Iust. Powel Mr. Sollicitor Pray when you are applying apply that other part of the Case too which says that it was a heinous Offence to raise a Rumor that the King did intend to grant a general Toleration and is there any Law since that has changed it Mr. Sollicitor Mr. Sol. Gen. In the main Judgment goes another way as for that part it was personal to the Prince that then was of whom they had Scandalously reported that he intended to do such a thing they look'd upon it as a Scandal to King Iames that it was a sowing Sedition and stirring up People against the Government and that will come up to our Case for as some Men do it on the right side others do it on the left and whoever he be that endeavours to bring a dislike of the King in the People that is moving Sedition against the Prince but that is personal to the Prince himself and does not go to his Successors Now my Lord I come to that which is very plain from the Case of De Libellis Famosis If any Person in any Paper have Slandered the Government you are not to Examine who is in the Right and who is in the Wrong whether what they said to be done by the Government be Legal or no but whether the party have done such an Act. If the King have a Power for still I keep to that to Issue forth Proclamations to his Subjects and to make Orders and Constitutions in matters Ecclesiastical if he do Issue forth his Proclamation and make an Order upon the matters within his Power and Prerogative and if any one would come and bring that Power in Question I say that is Sedition and you are not to Examine the Legality or Illegality of the Order or Proclamation and that I think is very plain upon that Case in the Fifth Report for it says If a Person does a thing that is Libellous you shall not Examine the Fact but the Consequence whether it tended to stir up Sedition against the Publick or to stir up Strife between Man and Man in the Case of private Persons as if a Man should say of a Judge He has taken a Bribe and I will prove it this is not to be sent in a Letter but they must take a regular way to Prosecute it according to Law. If it be so in the Case of an Inferior Magistrate what must it be in the Case of a King to come to the Kings Face and tell him as they do here that he has Acted Illegally doth certainly sufficiently prove the matter to be Libellous What do they say to King they say and admit that they have an aversness for the Declaration and they tell him from whence that aversness doth proceed and yet they insinuate that they had an inclination to Gratify the King and Embrace the Dissenters that were as averse to them as could be with due tenderness when it should be settled by Parliament and Convocation Pray what hath their Convocation to do in this matter L. Ch. Iust. Mr. Sollicitor General I will not interrupt you but pray come to the Business before us Shew us that this is in diminution of the Kings Prerogative or that the King ever had such a Prerogative Mr. Sol. Gen. I will my Lord I am observing what it is they say in this Petition They tell the King it is inconsistent with their Honor Prudence and Conscience to do what he would have them to do and if these things be not reflective upon the King and Government I know not what is this is not in a way of Judicature possibly it might have been allowable to Petition The King to put it into a course of Justice whereby it may be Tryed but alas there is no such thing in this matter It is not their desire to put it into any Method for Tryal and so it comes in the Case De Libellis Famosis for by this way they make themselves Judges which no Man by Law is permitted to do My Lords the Bishops have gone out of the way and all that they have offered does not come home to justify them and therefore I take it under Favour that we have made it a good Case for the King we have proved what they have done and whether this be Warrantable or not is the Question Gentlemen that you are to try The whole Case appears upon Record the Declaration and Petition are set forth and the Order of the King and Council When the Verdict is brought in they may move any thing what they please in arrest of Judgment They have had a great deal of Latitude and taken a great deal of Liberty But truly I apprehend not so very pertinently But I hope we have made a good Case of it for the King and that you Gentlemen will give us a Verdict Mr. Iust. Holloway Mr. Sollicitor there is one thing I would seign be satisfied in you say the Bishops have no Power to Petition the King. Mr. Soll. Gen. Not out of Parliament Sir. Mr. Iust. Holloway Pray give me leave Sir Then the King having made such a Declaration of a General Toleration and Liberty of Conscience and afterwards he comes and requires the Bishops to disperse this Declaration this they say out of a tenderness of Conscience they cannot do because they apprehend it contrary to Law and contrary to their
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
shaken It is the business of the Government to manage Matters relating to the Government it is the business of Subjects to mind only their own Properties and Interest If my Interest is not shaken what have I to do with Matters of Government They are not within my Sphere If the Government does come to shake my particular Interest the Law is open for me and I may redress my self by Law And when I intrude my self into other Mens business that does not concern my particular Interest I am a Libeller These I have laid down for plain Propositions now then let us Consider further Whether if I will take upon me to contradict the Government any specious Pretence that I shall put upon it shall dress it up into another Form and give it a better Denomination and truly I think it will not I think 't is the worse because it comes in a better Dress for by that Rule every Man that can put on a good Vizard may be as Mischievous as he will to the Government at the bottom so that whether it be in the form of a Supplication or an Address or a Petition if it be what it ought not to be let us call it by its true Name and give it its right Denomination It is a Libel Then Gentlemen Consider what this Petition is This is a Petition relating to something that was done and ordered by the Government Whether the Reasons of the Petition be true or false I will not Examine that now nor will I Examine the Prerogative of the Crown but only take notice that this relates to the Act of the Government The Government here has published such a Declaration as this that has been read relating to Matters of Government And shall or ought any body to come and impeach that as Illegal which the Government has done Truly in my Opinion I do not think he should or ought for by this Rule may every Act of the Government be shaken when there is not a Parliament de Facto sitting I do agree That every Man may Petition the Government or the King in a matter that relates to his own private Iâ—…erest but to meddle with a matter that relates to the Government I do not think my Lords the Bishops had any Power to do more than any others When the House of Lords and Commons are in Being it is a proper way of applying to the King there is all the openness in the World for those that are Members of Parliament to make what Addresses they please to the Government for the rectifying altering regulating and making of what Law they please but if every private Man shall come and interpose his Advice I think there can never be an end of Advising the Government I think there was as an instance of this in King Iames's Time when by a Solemn Resolution it was declared to be High Misdemeanour and next to Treason to Petition the King to put the Penal Laws in Execution Mr. Iust. Powel Brother I think you do Mistake a little Mr. Iust. Allybone Brother I dare rely upon it that I am Right it was so declared by all the Judges Mr. Soll. Gen. The Puritans presented a Petition to that purpose and in it they said if it would not be granted they would come with a Great Number Mr. Iust. Powel Ay there it is Mr. Iust. Allybone I tell you Mr. Sollicitor the Resolution of the Judges is That such a Petition is next Door to Treason a very Great Misdemeanour Mr. Iust. Powel They accompanying it with Threats of the Peoples being Discontented Mr. Iust. Allybone As I remember it is in the Second Part of the Folio 35 or 37 where the Resolution of the Judges is That to frame a Petition to the King to put the Penal Laws in Execution is next Door to Treason for say they no Man ought to intermeddle with Matters of Government without leave of the Government Mr. Serj. Pemberton That was a Petition against the Penal Laws Mr. Iust. Allybone Then I am quite Mistaken indeed in case it be so Mr. Serj. Trinder That is not Material at all which it was Mr. Pollixfen They there threatned unless their Request were granted several Thousands of the King's Subjects would be Discontented Mr. Iust. Powel That is the Reason of that Judgment I affirm it Mr. Iust. Allybone But then I 'll tell you Brother again what is said in that Case that you hinted at and put Mr. Sollicitor in mind of For any Man to raise a Report that the King will or will not permit a Toleration if either of these be disagreeable to the People whether he may or may not It is against Law for we are not to measure things from any Truth they have in themselves but from that Aspect they have upon the Government for there may be every Tittle of a Libel true and yet it may be a Libel still So that I put no great Stress upon that Objection That the Matter of it is not False and for Sedition it is that which every Libel carries in it self and as every Trespass implies Vi Armis so every Libel against the Government carries in it Sedition and all the other Epithets that are in the Information This is my Opinion as to the Law in General I will not Debate the Prerogatives of the King nor the Priviledges of the Subject but as this Fact is I think these Venerable Bishops did meddle with that which did not belong to them they took upon them in a Petitionary way to contradict the Actual Exercise of the Government which I think no private particular Persons or single Body may do L. Ch. Iust. Gentlemen of the Jury Have you a Mind to Drink before you go Iury. Yes my Lord if you please Wine was sent for for the Iury. Iury-man My Lord we humbly pray that your Lordship would be pleased to let us have the Papers that have been given in Evidence L. Ch. Iust. What is that you would have Sir Mr. Soll. Gen. He desires this my Lord That you would be pleased to direct that the Jury may have the use of such Writings and Statute Books as may be Necessary for them to make use of L. Ch. Iust. The Statute Book they shall have Mr. Soll. Gen. But they can have no Papers but what are under Seal Mr. Serj. Levinz They may have them by Consent and they may have a Copy of the Information L. Ch. Iust. They shall have a Copy of the Information and the Declarations under Seal Mr. Pollixfen If they have those and the Lâ—…bel as they call it they will not need a Copy of the Information M. Attorn Gen. My Lord we pray that your Lordship would be pleased to ascertain what it is they shall have L. Ch. Iust. They shall have a Copy of the Information the Libel and the Declarations under the Great Seal Mr. Soll. Gen. But not the Votes of the House of Commons nor the Journals for