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
Council and this is nothing but a Petition against an Order of Council and if there be an Order that commands my Lords the Bishops to do a thing that seems grievous to them surely they may beg of the King that he would not insist upon it And for this Matter they were so well satisfied about it and so far from thinking that it was any part of a Libel that they left it out of the Information and so have made a deformed and absurd Story of it without Head or Tall a Petition directed to no Body and for nothing it being without both Title and Prayer so that this is plain is was lawful to Petition Then my Lord the next Thing is the Reasons which my Lords the Bishops come to acquaint the King with why in Honour and Conscience they cannot comply with and give obedience to this Order and the Reasons my Lord are two The first Reason that is assigned is the several Declarations that have been in Parliament several of which are mentioned that such a Power to dispense with the Law is against Law and that it could not be done but by an Act of Parliament for that is the meaning of the word Illegal that has no other signification but unlawful the same word in point of signification with the word Illicitè which they have used in their Information a thing that cannot be done by Law and this they are pleased to tell the King not as declaring their own Judgments but what has been declared in Parliament though if they had done the former they being Peers of the Realm and Bishops of the Church are bound to understand the Laws especially when as I shall come to show you they are made Guardians of these Laws and if any thing go amiss and contrary to these Laws they ought to inform the King of it My Lord the next thing is Because it is a Thing of so great moment and the Consequences that will arise from their publishing of this Declaration and that too my Lord for the latter I shall begin first with there can be no Question about or any pretence that this is libellous or false for certainly it is a Case of the greatest Consequence to the whole Nation that ever was therefore it cannot be false or libellous to say so My Lord I would not mention this for I am loth to touch upon things of this Nature had not the Information it self made it the very Gift of the Charge for the Information if there be any thing in it says that it was to diminish the King's Prerogative and Regal Power in publishing that Declaration Now my Lord what the Consequence of this would be and what my Lords the Bishops meant by saying It was a Cause of great Moment will appear by considering that which is the main Clause in the Declaration at which my Lords the Bishops scrupled which is the main Stumbling-block to my Lords and has been to many honest Men besides and that is this We do likewise declare It is our Royal Will and Pleasure that from hence-forth the Execution of all and all manner of Penal Laws in Matters Ecclesiastical for not coming to Church or not receiving the Sacrament or for any other Nonconformity to the Religion Established or for or by Reason of the Exercise of Religion in any manner whatsoever be immediately suspended and the further execution of the said Penal Laws and every of them is hereby suspended Now my Lord this Clause either is of some legal â—…ect and Signification or it is not If Mr. Attorny or the King's Council do say it is of no Effect in Law then there is no harm done then this Petition does no ways impeach the King's Prerogative in saying it has been declared in Parliament according as the King's Counsel do agree the Law to be But my Lord if it have any Effect in Law and these Laws are suspended by virtue of this Clause in the Declaration then certainly my Lord it is of the most dismal Consequence that can be thought of and it behoved my Lords who are the Fathers of the Church humbly to represent it to the King. For my Lord by this Declaration and particularly by that Clause in it not only the Laws of our Reformation but all the Laws for the preservation of the Christian Religion in general are suspended and become of no force if there be such an Effect in Law wrought by this Declaration as is pretended that is that the Obligation of Obedience to them ceaseth the Reason of it is plain the words cannot admit of such a Quibble as to pretend that the Execution of the Law is not the Suspending of the Law and that the Suspending the Execution of the Law is not a Suspending of the Law for we all know the Execution of every Law in its primary Intent is Obedience to it that of the Penalty comes in by way of Punishment and Recompence for their Disobedience Now my Lord if this Declaration does discharâ—… the King's Subjects from their Obedience to and the Obligation from those Laws then pray my Lord where are we Then all the Laws of the Reformation are suspended and the Laws of Christianity it self by those latter words 〈◊〉 or for or by reason of Religion in any manner whatsoever so that it is not confined to the Christian Religion but all other Religions are permitted under this Clause And thus all our Laws for keeping the Sabbath and which distinguish us from Heathens will be suspended too My Lord this is such an Inconvenience as I think I need name no more and it is a very natural Confequence from that Clause of the Declaration it discharges at once all Ministers and Clergy-men from performing their Duty in reading the Service of the Church it discharges their Hearers from attending upon that Service When a Law is suspended the Obligation thereof is taken away and those that before thought themselves bound to obey now conclude they are not so obliged and what a mischief that will be to the Church which is under the Care of my Lords the Bishops your Lordship will easily apprehend These things my Lord I only mention to shew the great and evil Consequences that apparently follow upon such a Declaration which made my Lords the Bishops decline obeying the Order and put them under a necessity of applying thus to the King to acquaint him with the Reasons why they could not comply with his Commands to read this Declaration to the People because the Consequences thereof were so great it tending naturally to lead the People into so great an Error as to believe those Lawâ—… were not in Force when in Truth and Reality they are still in Force and continue to oblige them And that being the second Reason in this Petition I come next to consider it to wit thâ—… the Parliament had often declared this pretended Power to be Illegal and for that we shall read the several
Records in Parliament mentioned in their Petition and produce several Ancient Records of former Parliaments that prove this Point and particularly in the Time of Richard the Second concerning the Statute of Provisors where there were particular Dispensations for that Statute the King was enabled to do it by Act of Parliamentâ—… and could not do it without L. C. Iust. Pray Sir Robert Sawyer go to your Proofs and reserve your Arguments till afterwards Sir Rob. Sawyer My Lord I do but shortly mention these things so that my Lord as to the Matter of this Petition we shall shew you that it is true and agreeable to the Laws of the Land. Then my Lord as to the manner of delivering it I need say no more but that it is plain from their Evidence that it was in the most private and humble manner And as my Lord President said Leave was asked of the King for them to be admitted to present it Leave was given and accordingly they did it We come then my Lord to the third thing the Persons these noble Lords and we shall shew they are not Busie-Bodies but in this Matter have done their Duty and medled with their own Affairs That my Lord will appear First By the general Care that is reposed in them by the Law of the Land They are frequently in our Books called the King's Spiritual Judges they are intrusted with the Care of Souls and the Superintendency over all the Clergy is their principal Care. But besides this my Lord there is another special Care put upon them by the express Words of an Act of Parliament for over and above the general Care of the Church by virtue of their Offices as Bishops the Act of 1 Eliz. cap. 2. makes them special Guardians of the Law of Uniformity and of that other Law in His Late Majesty's Reign where all the Clauses of that Statute of 1 Eliz. are revived and made applicable to the present State of the Church of England Now in that Statute of 1 Eliz. there is this Clause And for the due Execution hereof the Queen 's Most Excellent Majesty the Lords Spiritual and Temporal and all the Commons in this present Parliament assembled do in God's Name earnestly require and charge all the Archbishops and Bishops and other Ordinaries that they do endeavour themselves to the utmost of their Knowledges that the due and true Execution hereof may be had throughout their Diocesses and Charges as they will answer before God for such Evils and Plagues wherewith Almighty God may justly punish his People for neglecting this good and wholsome Law. This is the Charge that lies upon the Bishops to take care of the Execution of that Law and I shall pray by and by that it may be read to the Jury Mr. Soll. Gen. That is very well indeed To what purpose Sir Rob. Sawyer So that my Lord by this Law it is plain that my Lords the Bishops upon pain of bringing upon themselves the Imprecation of this Act of Parliament are obliged to see it executed and then my Lord when any thing comes under their Knowledge especially if they are to be Actors in it that has such a tendency to destroy the very Foundations of the Church as the Suspension of all the Laws that relate to the Church must do it concerns them that have no other Remedy to address the King by Petition about it For that Mr. Attorney my Lord has agreed That if a proper Remedy be pursued in a proper Court for a Grievance complained of though there may be many hard Words that else would be scandalous yet being in a regular Course they are no Scandal And so it is said in Lake's Case in my Lord Hobbart My Lord we must appeal to the King or we can appeal to no body to be relieved against an Order of Council with which we are aggrieved and it is our Duty so to do according to the Care that the Law hath placed in us Besides my Lord the Bishops were commanded by this Order to do an Acâ—… relating to their Ecclesiastical Function to distribute it to be read by their Clergy And how could they in Conscience do it when they thought part of the Declaration was not according to Law Pray my Lord What has been the reason of His Majesty's consulting of his Judges And if His Majesty or any the great Officers by his Command are about to do any thing that is contrary to Law was it ever yet an Offence to tell the King so I always look'd upon it as the Duty of an Officer or Magistrate to tell the King what is Law and what is not Law. In Cavendish's Case in the Queen's time there was an Office granted of the Retorn of the Writs of Supersedeas in the Court of Common Pleas and he comes to the Court and desires to be put into the possession of the Office The Court told him They could do nothing in it but he must bring his Assize He applies to the Queen and she sends under the Privy Seal a Command to sequester the Profits and to take Security to answer thâ—… Profits as the Judgment of the Law should go But the Judges there return an Answer That it was against Law and they could not do it Then there comes a second Letter reciting the former and commanding their Obedience The Judges returned for Answer They were upon their Oaths and were sworn to keep the Laws and would not do it My Lord The like was done in the time of my Lord Hobbart We have it reported in Anderson in a Case where a Prohibition had gone There came a Message from Court that a Consultation should be granted and that was a Matter wherein there were various Opinions whether it was Ex Necessitate or Discretionary but there they return'd That it was against Law for any such Message to he sent Now here my Lord is a Case full as strong My Lords the Bishops were commanded to do an Act which they conceived to be against Law and they decline it and tell the King the reason and they have done it in the most humble manner that could be by way of Petition If they had done as the Civil Law terms it Rescribere generally that had been lawful but here they have done it in a more respectful manner by an humble Petition If they had said the Law was otherwise that sure had been no Fault but they do not so much as that but they only say it was so declared in Parliament and they declare it with all Humility and Dutifulness So that my Lord if we consider the Persons of the Defendants they have not acted as Busie-Bodies and therefore as this Case is when we have given our Evidence here will be an Answer to all the Implications of Law that are contained in this Information For they would have this Petition work by Implication of Law to make a Libel of it but by what I have said it will appear
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
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-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
it is not only lawful but his Duty Rescribere Principi this is all that is done here and that in the most humble manner that could be thought of your Lordship will please to observe how far it went how careful they were that they might not any way justly offend the King. They did not interpose by giving advice as Peers they never stirr'd till it was brought home to themselves when they made their Petition all they beg is that it may not so far be insisted upon by his Majesty as to oblige them to read it whatever they thought of it they do not take upon them to desire the Declaration to be revoked My Lord as to Mattters of Fact alledged in the said Petition that they are perfectly true we have shewn by the Journals of both Houses In every one of those Years which are mentioned in the Petition this Power of Dispensation was considered in Parliament and upon debate Declared to be contrary to Law there could be no Design to diminish the Prerogative because the King hath no such Prerogative Seditious my Lord it could not be nor could possibly stir up Sedition in the minds of the People because it was presented to the King in private and alone false it could not be because the Matter of it is true There would be nothing of Malice for the occasion was not sought the thing was pressed upon them and a Libel it could not be because the intent was innocent and they kept within the bounds set by the Act of Parliament that gives the Subject leave to apply to his Prince by Petition when he is agrieved Mr. Att. Gen. Have you done Gentlemen Mr. Finch We have done Sir. Mr. Att. Gen. My Lord I shall be a great deal more merciful to your Lordship and the Jury than they have been who have spent these four hours in that which I think is not pertinent to the Case in Question They have let themselves into large Discourses making great Complaints of the Hardships put upon my Lords the Bishops by the Order of Councel to read his Majesties Declaration and putting these words into the Information of Seditious Malicious and Scandalous But my Lord I admire that Sir Robert Sawyer should make such Reflections and Observations upon these words when I am sure he will scarce find any one of his own exhibiting that has so few of those aggravating words as this has and therefore that might have been very well spared especially by him In the next place my Lord we are told what great Danger our Religion is in by this Declaration I hope we have an equal concern for that with them or any Person else whatsoever But however I am sure our Religion teaches us not to preserve our Religion or our Lives by any illegal Courses and the Question is whether the Course that my Lords the Bishops have taken to preserve as they say our Religion be Legal or not if it be not Legal then I am sure our Religion will not justifie the using such a Course for never so good an End. My Lord for the thing it self I do admire that they in so long a time and search that they have made should not which I expected produce more Presidents of such a Paper as this is They challenge us to shew that ever there was any such Declaration as this I 'le turn the same Challenge upon them Shew me any one instance that ever so many Bishops did come under pretence of a Petition to reflect upon the King out of Parliament Sir Robert Sawyer Is that your way of Answering Mr. Attorney Mr. Attorney General Pray Sir Robert Sawyer you have had your time don't interrupt us sure we have as much right to be heard as you Lord Chief Iustice. You have been heard over and over again Sir Robert Sawyer already Sir Robert Sawyer My Lord I don't intend to interrupt him Mr. Solicitor General We cannot make them be quiet they will still be chopping in upon us Mr. Attorney General That is an Art that some People have always practised not to permit any body to speak but themselves But my Lord I say that those few Instances that they have produced are nothing at all to this Matter that is now upon Trial before your Lordship and this Jury nay they are Evidences against them for they are only matters transacted in Parliament which are no more to be applied to this thing that is in Controversy now than any the most remote matter that could be thought of and though they have gone so high in point of time as to the Reign of Richard the Second yet they have nothing between that and the late Kings Reign to which at last they have descended down But my Lord I say that all the talk of Richard the Seconds time is wholly out of the Case truly I do not doubt but that in Richard the Seconds time they might find a great many Instances of some such sort of Petitioning as this for our Histories tell us that at that time they had 40000 Men in Arms against the King and we know the troubles that were in that Kings Reign and how at length he was deposed but certainly there may be found Instances more applicable to the Case than those they produce as for those in King Charles the Seconds time do they any ways justifie this Petition for now they are upon justifying the words of their Petition that this power has been declared to be illegal in 1662 1672 and 1685. For what was done in 1662 do they shew any thing more than some Debates in the House of Commons And at last an Address an Answer by the King a Reply of the Commons and then the thing dies Pray my Lord is a Transaction in the House of Commons a Declaration of Parliament Sure I think no one will affirm that any thing can be a Declaration of Parliament unless he that is the Principal part Concurs who is the King for if you speak of the Court of Parliament in a Legal sense you must speak of the whole Body King Lords and Commons and a Declaration in Parliament must be by all the whole Body and that is properly an Act of Parliament Why then they come to the year 1672 where your Lordship observes that the late King did insist upon his Right for after the Dispute which was in 1662 his Majesty did issue out another Declaration and when it comes to be debated in Parliament he insists upon his Right in Ecclesiastical Matters and though his Declaration was Cancelled yet there is no formal Disclaimer of the Right My Lord after all how far these things that they have offered may work as to the point that they have debated I shall not now meddle with it nor give your Lordship any trouble about it because it is not at all pertinent to the Case in question for I do after all this time and pains that they have spent take leave to say
follow the Nature of the Fact that I need not insist upon it if the Act be unlawful the Law supplies the Malice and evil Intentions Mr. Solicit Gen. My Lord and Gentlemen of the Jury I am of Counsel in this Case for the King and I shall take leave to proceed in this Method First I shall put the Case of my Lords the Bishops and then consider the Arguments that have been used in their Defence and answer them as much as is material to be answered and then leave it to your Lordship and the Juries Consideration whether what has been said by these Gentlemen weigh any thing in this Case First my Lord I take it for granted and I think the Matter is pretty plain by this time by my Lord Presidents Evidence and their own Confession that it is not to be disputed but that this Paper was presented by these Lords to the King I think there is no great difficulty in that Matter at all but I just touch upon it because I would follow them in their own Method Then my Lord let us take this Case as it is upon the Nature of the Petition and the Evidence that they have given and then let us see whether that will justifie the thing that is done For the business of Petitioning I would distinguish and enquire Whether my Lords the Bishops out of Parliament can present any Petition to the King I do agree that in Parliament the Lords and Commons may make Addresses to the King and signifie their Desires and make known their Grievances there and there is no doubt but that is a natural and proper way of Application For in the beginning of the Parliament there are Receivers of Petitions appointed and upon Debates there are Committees appointed to draw up Petitions and Addresses but to come and deduce an Argument that because the Lords in Parliament have done thus there being such Methods of Proceedings usual in Parliaments therefore my Lords the Bishops may do it out of Parliament that is certainly a Non sequitur no such Conclusion can be drawn from those Premises My Lord I shall endeavour to lay the Fact before you as it really is and then Consider what is proper for the Court to take notice of as Legal Proof or Evidence And I take it all those Presidents that they have produced of what the Lords did and what the Commons did in Parliament is no Warrant for them to shelter themselves under against the Information here in Question Here Mr. Iust. Powel spake aside to the Lord Chief Iustice thus Mr. Iust. Powel My Lord this is strange Doctrine shall not the Subject have Liberty to Petition the King but in Parliament If that be Law the Subject is in a miserable Case Ld. Ch. Iust. Brother let him go on we will hear him out tho' I approve not of his Position Mr. Solicit General The Lords may Address to the King in Parliament and the Commons may do it but therefore that the Bishops may do it out of Parliament does not follow I heard nothing said that could have given Colour to such a thing but the Curse that has been read in 1 Elizabeth But pray my Lord let us consider that Evidence they have given they have begun with that Record in Richard the Seconds time and what is that That the King may dispeâ—…se with the Statute of Provisors till the meeting of the next Parliament and a Protestation of the Commons at the end of it whether that be an Act of Parliament that is Declaratory of the Common Law or Introductory of a new Law Non Constat and for ought appears it might be a Declaratory Act And if so it is a Proof of the Kings Prerogative of Dispensing It might be an Act in Affirmance of the Kings Prerogative as there are a great many such we very well know and generally most of the Laws in that kind are in Affirmance of the Kings power so that the Law turns as an Argument for the King Prerogative and they have given him that which will turn upon themselves so it stood in Richard the Seconds time but whether that be an Argument one way or other Conclusive is lest to your Lordship and the Jury Ay but say they there is no Execution of such a Power till very lately and the first Instance that they produce is that in the Year 1662. But your Lordship knows that before the Râ—…ign of Henry the Fourth there was great Jurisdiction assumed by the Lords in Original Causes then comes the Statute of Appeals 1 Hen. 4. which takes notice that before that time the Lords had assumed an Original Jurisdiction in all Causes and would proceed and determine them in Parliament and out of Parliament and it fell out to be so great a Grievance that it was thought necessary to make a Law against it that Appeals in Parliament should be abolished and destroyed and then comes that Law in favour of the Subject of England and that settles the bounds between the King and the Lords in a great measure before that time the Lords were grown very powerful and where there is a Power there always will be Applications and what is the effect of that Statute 1 Hen. 4. for all that we endeavour is to make things as plain can be that no further Applications no Accusations no Proceedings in any Case whatsoever be before the Lords in Parliament unless it be by Impeachment of the Commons so that there is the Salvo and the use that I make of it is this The Commons by that very Statute did abolish the Power that the Lords had arrogated to themselves and Ordered that they should not meddle with any Cause but upon the Impeachment of the House of Commons and establish the Impeachment of the Commons which is as ancient as the Parliament for that was never yet spoken against the Power of the Commons Impeaching any Person under the degree of the Prince and that is the regular legal way and so the Commons asserted their Ancient Right and whatsoever the Lords took notice of must come by Application of the Commons then Conferences were to pass between the Houses and both Houses by Address apply to the King this is the proper way and course of Parliament of which thy Lord Cook says It is known to few and practised by fewer but it is a Venareble Honourable way and this is the Course that should have been taken by my Lords here and they should have stayed till the Complaint had come from the Commons in Parliament and then it had been Regular for them to Address to the King but they were too Quick too Nimble And whereas the Statute of Hen. 4. says That no Lord whatsoever shall intermeddle with any Cause but by the Impeachment of the Commons they interpose and give their advice before their time if there be any Irregularity in Parliament or out of Parliament the Commons are to make their Complaint of it
because he wished he had such a Power this must be declared in Parliament that he had no such Power Is the Speech of the Prince a Declaration in Parliament All the Speeches that were made upon the opening of the Parliament will you say they are Declarations in Parliament Then the Chancellor or the Keeper's Speech or the Lord Privy Seals must be a Declaration in Parliament Whoever speaks the Sense of the King if he does not speak that which is Law and Right is questionable for it and several have been Impeached for so doing for they look not upon it as the King's Speech except it be according to Law Nothing can turn upon the Prince but what is Legal if it be otherwise it turns upon him that speaks it I never did hear that a Speech made by the Chancellor and I will appeal to all the Lords that hear me in it was a Declaration in Parliament Then my Lord we come to the business in 1672. which with that in 1662. and that in Breda shews That this of the King 's is not such a Novelty but has been done often before In 1672. the King was in Distress for Money being intangled in a Dutch War and wanted Supply He Capitulates with his Commons you have heard it read and upon the Commons Address he asserts it to be his Right and makes his Complaint to the Lords how the Commons had used him for when he gives them a fair Answer they Reply and there are Conferences with the Lords about it but at length it all ends in a Speech by the King who comes and tells them of his present Necessitieâ—… and so he was minded to reâ—… a little at the Instigation of the Commons and he has a good Lump of Money for it Would this amount to a Declaration in Parliament Can my Lords the Bishopâ—… fancy or imagine that this is to be imposed upon the King or upon the Court for a Declaration in Parliament Then last of all for that in 1685. in this King's time What is it The Commons make an Address to the King and Complain to his Majesty of some of his Officers in his Army that might pretend to have a Dispensation something of that Nature contrary to the Test Act And what is done upon it They make their Application to the King and the King Answers them and that is all But since it is spoken of in the Court I would take notice That it is very well known by the Case of Godding and Hales the Judgment of this Court was against the Opinion of that Address But what sort of Evidence is all this Would you allow all the Addresses of the House of Commons to be Evidence Give me leave to say it my Lord If you suffer these Votes these Copies of Imperfect Bills these Addresses and Applications of one or both Houses to the King to be Evidence and Declarations in Parliament then what will become of the Bill of Exclusion Shall any Body mention that Bill of Exclusion to be a Declaration in Parliament If so then there is Declaration against Declaration the Declaration of the Commons against the Declaration of the Lords I know not what Judgment my Lords the Bishops may be of now concerning those things of Votes and Addresses being Declarations in Parliament but I am sure they have spoken against it heretofore nay I am sure some of them have Preached against it And if my Lords the Bishops have said These are Declarations in Parliament and they are not Declarations in Parliament and if they accuse the King of having done an Illegal thing because he has done that which has been declared in Parliament to be Illegal when it was never so declared then the Consequence is very plain That they are Mistaken sometimes and I suppose by this time they believe it I dare say it will not be denied me That the King may by his Prerogative Royal issue forth his Proclamation it is as essential a Prerogative as it is to give his assent to an Act of Parliament to make it a Law. And it is another Principle which I think cannot be denied That the King may make Constitutions and Orders in Matters Ecclesiastical and that these he may make out of Parliament and without the Parliament If the King may do so and these are his Prerogatives then suppose the King does issue forth his Royal Proclamation and such in effect is this Declaration under the Great Seal in a Matter Ecclesiastical by Virtue of his Prerogative Royal and this Declaration is read in the Council and published to the World and then the Bishops come and tell the King Sir you have issued out an Illegal Declaration being contrary to what has been declared in Parliament when there is no Declaration in Parliament Is not this a Diminishing the King's Power and Prerogative in issuing forth his Declaration And making Constitutions in Matters Ecclesiastical Is not this a questioning of his Prerogative Do not my Lords the Bishops in this Case raise a question between the King and the People Do not they as much as in them lyes stir up the People to Sedition For who shall be Judg between the King and the Bishops Says the King I have such a Power and Prerogative to issue forth my Royal Proclamation and to make Orders and Constitutions in Matters Ecclesiastical and that without the Parliament and out of Parliament Say my Lords the Bishops You have done so but you have no Warrant for it Says the King Every Prince has done it and I have done no more than what is my Prerogative to do But this say the Bishops is against Law. How shall this be tryed Should not the Bishops have had the Patience to have waited till a Parliament came When the King himself tells them he would have a Parliament in November at furthest L. Ch. Iust. Pray Mr. Sollicitor come close to the business for it is very late Mr. Sol. Gen. My Lord I beg your Patience you have had a great deal of Patience with them pray spare me a little I am saying when the King himself tells them that he would have a Parliament in November at furthest yet they have no Patience to stay till November but make this Application to him Is not this raising a Question upon the King's Prerogative in issuing forth Declarations and upon the King's Power and Right in Matters Ecclesiastical And when I have said this that my Lords the Bishops have so done If they have raised a Question upon the Right of the King and the Power of the King in Matters Ecclesiastical then they have stirred up Sedition That they have so done is pretty plain and for the Consequence of it I shall appeal to the Case in the 2 Cro. 2. Iac. 1. That is a plain direct Authority for me Mr. Iust. Powel Nay Mr. Sollicitor we all very well know to deny the King's Authority in Temporals and Spirituals as by Act of
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
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
England and hath Authority to commit wherever he is but a Commitment by such an one or such and such Lords of the Privy-Council cannot be a good Return of a Commitment because though they be Lords of the Council yet neither single or apart nor all together have Authority to do such an Act unless they be assembled in the Privy-Council there their Authority is circumscribed so that that must needs be a great difference between a Commitment made by a Judge who is always so and a Commitment by a Lord or so many Lords by the Name of Lords of the Privy-Council who carry not their Authority about with them but are limited to their Assembly in Council Mr. I. Allyb. Mr. Finch Indeed your Objection is worth something if my Lord Chief Justice could not act but as under the character of Chief Justice for you are now arguing that these Lords could not do this Act but as Lords of the Council in Council the same say I may be said of a Commitment by the Lord Chief Justice he cannot do it but under the formality of his Authority as he is Chief Justice unless you will make it impossible for him to do any thing but as Chief Justice or unless you make it impossible to separate his Person from his Authority Mr. Finch But Sir the difference lies here the Authority of the one is general and universal and goeth with him wherever he goes the other's Authority is limited to a particular sphere Mr I. Allyb. Why would you have it averred That they did it being assembled in Council Mr. Finch Under favour they cannot justifie any thing that was done by them as Lords of the Council but in the Privy-Council Mr. I. Powel Truly my Lord for my part I think there is no such great necessity of haste in this matter Here are Exceptions taken to this Return and the matter transacted now before us appears to me to be of very great weight peradventure a greater or a weightier has not been agitated in this place in any Age it concerns these Noble and Reverend Lords in point of Liberty it comes suddenly upon us and therefore my Lord I think it very fit we should consider a little of this matter and consult the Precedents of Returns how they are for there are multitudes of Returns of Writs of Habeas Corpus in this Court therefore it were requisite that we did consult the Forms of other Returns and how the Precedents as to this matter have always been if they are according as this is then all is well but if they be otherwise it is fit we should keep to the usual Forms L. C. I. What 's your Opinion of it Brother Allybone Mr. I. Allyb. I am still of the same mind I was my Lord That he could make no Return but this Return he has made and if his Warrant was insufficient upon this Account that these particular persons Lords of the Privy-Council did this Act without saying that they did it in Privy-Council then 't is not his Return that could mend it and truly I do not know that there does need any Precedent for this for every one knows where the Lords of the Council are and 't is a sufficient Averment this that is in the Return Mr. Pollexfen They are Lords of the Council every where but they do not act as Lords of the Council any where but in Council Mr. I. Allyb. So my Lord Chief Justice is Chief Justice every where Mr. Finch And he can do Judicial Acts as such every where but the Lords of the Council cannot act but in the Council Mr. I. Allyb. Nor is it to be presumed that they did do it Mr. Finch It is not a presumption that is to make any thing in this case but the Question is whether here be a legal Return of a legal Commitment Mr. I. Allyb. Such publick Persons in such publick Acts can never be presumed to act in their separate private capacities Mr. Finch But with submission your Lordships can judge only what is before you in this Return whether it be a good Return and whether here be a good Authority asserted in the persons that did commit my Lords the Bishops L. C. I. Truly as to this Objection and Exception that has been made by them I have considered of it and what has been said on all sides and I think 't is the usual way of Commitment I never saw any other all the Warrants that ever I saw are of this Form if there were any Precedents they should be shewn of that side Sir Robert Sawyer There are multitudes of Precedents otherwise and none of this Form. L. I. C. I confess 't is a Case of great Weight and the Persons concerned are of great Honour and Value and I would be as willing as any body to testifie my Respects and Regards to my Lords the Bishops if I could see any thing in it worth considering of Mr. Sol. Gen. There 's no colour for it if they do but look upon the Statute of the 16th and 17th of the late King which arraigns the Proceedings of his Privy-Council that tells you what things belong to the cognizance of the Privy-Council and what not and there you have all the Distinctions about Commitments by the King and Council and by the Lords of the Council And that Act will shew that this is a Commitment according to the usual Form They know very well what the common Style of the Orders and Commitments of Council is as in other places and other Commitments By such an one Chief Iustice that is the Style that is very well known for such Warrants So a Commitment by such and such naming them particularly Lords of the Council that 's an Order made by the Lords in Council and that Statute distinguishes between Commitments of one sort and the other and it does it because sometimes Warrants run in one form and sometimes in another but they all come within the Direction of that Statute My Lord we are in a plain Case my Lords the Bishops come Regularly before you upon a Commitment by the Council and therefore we pray they may be charged with this Information Sir Robert Sawyer Pray will your Lordship give us leave to have that Statute lookt into which Mr. Sollicitor speaks of and then we shall see whether it be to his purpose L. C. I. Let the Statute be read Mr. Sol. Gen. If it be Keeble's Book it is the 16th of Charles the First if it be the Old Book it is the 16th and 17th of Car towards the end Clerk reads Provided always and be it enacted that this Act and the several Clauses therein contained shall be taken and expounded to extend onely to the Court of Star-Chamber and to the said Court holden before the President and Council in the Marches of Wales and before the President and Council in the Northern parts Mr. Soll. Gen. It is the Paragraph before that Clerk reads And be
not signed it or written it but had caused it to be published he may be found guilty of so much But if he be Guilty of any one of these things it is enough and if he be Guilty of none of the other things laid in the Information yet if he be Guilty of causing it to be published by his consenting that the rest of the Bishops should do it that will be enough to maintain this Information Then my Lord is there any Evidence brought against what we have proved That he did not consent Mr. Just. Powel But where was this Consent of his given Mr. Solicitor Mr. Sol. Gen. Pray good Sir give me your Favour I think I am in a plain Case Mr. Serj. Pemberton So you are truly Mr. Sol. Gen. Why good Sir you ought to make out the Locality if you 'l take advantage of it Mr. Serj. Pemberton That 's very well indeed this is the first time I ever heard that Doctrine Mr. Sol. Gen. I cannot help that but certainly the Law is plain we have proved there was such a Fact as this done and they do not go about to prove that it was done elswhere than where we have laid it for if they did their Witnesses would be cross-examined by us and then we know what would become of them then the Truth of the matter would come out Therefore I would make all this constare The Archbishop might be at Lambeth and yet Guilty in Middlesex by his Concurrence with what was done in Middlesex And I say my Lord this is natural upon the Evidence that has been given because when they were interrogated at the Council and confessed the Paper to be theirs they made no such Explanation of their Confession of which they can make any Advantage in their Defence Here has been no Body produced that proves any thing to be done out of Middlesex so that still if he 's Guilty of the Fact proved he must be Guilty in Middlesex Serjeant Baldock And it does not appear in this Case but that my Lord Archbishop might write the same thing in Middlesex tho' he was at Lambeth so long as the Witness speaks of Mr. Just. Powel How do you make out that Brother Serj. Baldock He might do it when he câ—…me over to the Council Sir Rob. Sawyer He must do it after it was presented Serj. Baldock Might he not be so long here on this side the Water as to make such a short thing as this before it was delivered half a quarter of an Hour would have done it L. Ch. Iust. That 's a thing not to be presumed Brother especially since he is proved not to have been in Middlesex for so long together Sir Rob. Sawyer Mr. Serjeant is mightily mistaken for it is not pretended That it was delivered at the time when the Archbishop and my Lords the Bishops were before the Council Mr. Recorder Either the Making and Contriving or the Publishing of this Libel will do upon this Information for they shall be taken to be one continued complicated Act and then the Party may be tryed in either of the Counties as the King will as in the case of Treason it has been over and over again adjudged That if a Man does one Act of Treason in one County and afterwards goes into another County and does another Act of Treason the Jury of either of the Counties may enquire of the Fact done in the other If they then should take those two as several Acts they were several Offences and they may be found Guilty of the one and acquitted of the other but if they are taken as one continued Act they are but one Offence and the Jury of either County may try it If then in this Case the Jury of this County may take notice of the Publication which was here as certainly they may if they will agree as the Law certainly is That the Writing of a Letter will be a sufficient Publication if the matter be Libellous And there are multitudes of Precedents for that and that the bare setting of a Man's Hand has been adjudged to be a Publication Then give me leave my Lord to bring it to a similar Case Suppose a Man write a scandalous Letter from London to a Judge or Magistrate in Exeter and sends it by the Post and the Letter is received from the Post at Exeter and there opened would any Man make a Question whether the Gentleman that sent the Letter may not be indicted and prosecuted for a Libel at Exeter where the Libel was received Mr. Just. Powel There 's no question of that Mr. Recorder that comes not home to the Fact in our Case undoubtedly in the Case that you put the Law is as you said but it is far different from this Case L. Ch. Iust. There 's no Body opposes the Publication but the framing of it where it was made Mr. Recorder Supposing then the Party were at Exeter and he were interrogated before the Magistrate Whether that were his Hand or no and he should own it to be his Hand can any body doubt whether his owning that to be his Hand would be a sufficient Evidence to prove a Publication Mr. Just. Powel But is that any Evidence where it was written Or if it be not proved that it was received at Exeter would that be a Proof of a Publication at Exeter L. Ch. Iust. They do not deny the Publication Sir Rob. Sawyer We do deny that there was any Publication and they have proved no place where it was made Mr. Sol. Gen. My Lord we are not for turning my Lords the Bishops out of the way of Proof that is usual in such Cases let them take it if they will That this was contrived and made in Surrey But can they publish it in Middlesex without committing an Offence and that is it we stand upon We are not for laying a greater Load upon my Lords the Bishops than our Proof will answer Sir Rob. Sawyer We thank you for your Complement Mr. Solicitor Mr. Sol. Gen. Is this a fare way of interrupting us when we are speaking Durst any one have served you so when you were in the Kings Service We would make our Duty as easie as we can to my Lords the Bishops and it may be easier than other Men would have made it But my Lord let it be a doubtful case that we cannot tell which County it was made and contrived in if it were made and contrived in another County yet when they brought it into Middlesex there was a Publication in Middlesex and if my Lord of Canterbury consented to it and if he caused it to be published how can any Body ever get him off from that causing of it to be published Here is a Paper that must be supposed to be my Lord Archbishops Paper Now either the World must look upon it to be an Imposture put upon my Lords the Bishops or a real Paper made by them If it were an Imposture
Exercise of the Popish or Roman Catholick Religion in this Kingdom nor to enable any Person or Persons to hold or exercise any Place or Office of publick Trust within this Kingdom who at the Beginning of this present Parliament were by the Laws and Statutes of this Realm disenabled thereunto nor to exempt any Person or Persons from such Penalties as are by Law to be inflicted upon such as shall publish or preach any thing to the Depravation or Derogation of the Book of Common Prayer or the Government Order and Ceremonies of the Church established by Law. Provided also and be it Enacted That no such Licence or Dispensation shall extend to make any Priest or Minister capable of any Ecclesiastical Living or Benefice with Cure who shall not before the Archbishop of the Province or Bishop of the Diocess where he lives make such Subscription to the Articles of Religion as is enjoined by the Statute of the 13th of Elizabeth made for Reformation of Disorders in the Church Nor shall extend or be construed to extend to dispense with the Book of Common Prayer But that the said Book shall be constantly read in all the Cathedral and Collegiate Churches and in all the Parish-Churches and publick Chapels Sir Rob. Sawyer Here your Lordship sees what the Lords did in this Matter We shall now shew you out of the Commons Journal what they did concerning this Speech of the King. Shew the Journal of the 25th of February 1662. Mr. Jodrell sworn L. C. I. Did you examine that Mr. Iodrell Mr Iodrell It is the Original Book The Book delivered into the Court. Clerk reads Die Mercurii XXV o die Februarii 15 Car. II. Resolved that it be presented Sir Rob. Sawyer You must begin above The House then took into Debate Clerk reads The House then took into Debate the Matter touching Indulgence to Dissenters from the Act of Uniformity The Question being put that the Present Debate be adjourned till To-Morrow Morning The House was divided The Yeas went out Sir Iohn Goodrick and Sir William Lowther Tellers for the Noes with the Noes 161. Sir Richard Temple and Sir Iohn Talbott Tellers for the Yeas with the Yeas 119. And so it passed in the Negative Resolved c. That it be presented to the King's Majesty as the humble Advice of this House That no Indulgence be granted to the Dissenters from the Act of Uniformity Mr. Soll. Gen. Does your Lordship think it to be Evidence L. C. I. Let them read it Mr. Sollicitor that we may hear what it is Clerk reads on Ordered that a Committee be appointed to collect and bring in the Reasons of this House for this Vote upon the present debate to be presented to his Majesty and that the nominating of the Committee be adjourned till to morrow morning Sir Rob. Sawyer That 's all Mr. S. G. Pray if there be any thing more read on you shall not parcel out a Record and take and leave what you will. Mr. Finch Did not you parcel out our Petition Mr. S. G. Read on If there be any thing about this matter Clerk. That is all Sir Rob. Sawyer Turn to the 27th of February 1662. Clerk reads Veneris xxvii Februarii xv Car II. Sir Heneage Finch reports from the Committee appointed to collect and bring in the Reasons of the House for their Vote of Advice to the King's Majesty and in the close of those Reasons to add That the House will assist his Majesty with their Lives and Fortunes and to pen an Address to his Majesty for that purpose the several Reasons and Address agreed by the Committee in writing he read in his place and did after bring up and deliver the same in at the Clerk's Table The First Paragraph was read and upon the question agreed to The Second Paragraph was read and upon the question agreed to The Third was read and upon the question agreed to Sir Rob. Sawyer Go over that and go to the Address it self Clerk reads May it please your most Excellent Majesty We your Majesty's most Dutiful and Loyal Subjects the Knights Citizens and Burgesses of the House of Commons in Parliament assembled having with all fidelity and obedience considered of the several matters comprised in your Majesty's late Gracious Declaration of the 26th of December last and your most Gracious Speech at the beginning of this present Session Do in the first place for our selves and in the names of all the Commons of England render unto your Sacred Majesty the tribute of our most hearty thanks for that infinite Grace and Goodness wherewith your Majesty hath been pleased to publish your Royal Intention of adhereing to your Act of Indempnity and Oblivion by a constant and religious observance of it and our hearts are further enlarged in these returns of Thanksgiving when we consider your Majesty's most Princely and Heroick profession of relying upon the Affections of your People and the abhorring all sorts of Military and Arbitrary Rule but above all we can never enough remember to the honour of your Majesty's Piety and our own unspeakable Comfort those solemn and most endearing Invitations of us your Majesty's Subjects to prepare Laws to be presented to your Majesty against the growth and increase of Popery and withal to provide more Laws against Licenciousness and Impiety at the same time declaring your own Resolutions for maintaining the Act of Uniformity and it becomes us always to acknowledg and admire your Majesty's Wisdom in this your Declaration whereby your Majesty is pleased to resolve not only by sumptuary Laws but by your own Royal Example of Frugality to restrain that excess in mens Expences which is grown so general and so exorbitant and to direct our endeavours to find out fit and proper Laws for advancement of Trade and Commerce After all this we most humbly beseech your Majesty to believe That it is with extreme unwillingness and reluctancy of heart that we are brought to differ from any thing which your Majesty hath thought fit to propose and though we do no ways doubt but that the unreasonable distempers of mens Spirits and the many Mutinies and Conspiracies which were carried on during the late intervals of Parliament did reasonably encline your Majesty to endeavour by your Declaration to give some allay to those ill humours till the Parliament assembled and the hopes of an Indulgence if the Parliament should consent to it especially seeing the Pretenders to this Indulgence did seem to make some title to it by vertue of your Majesty's Declaration from Bredah Nevertheless we your Majesty's most Dutifill and Loyal Subjects who are now returned to serve in Parliament from those several parts and places of your Kingdom for which we are chosen Do humbly offer it to your Majesty's great Wisedom that it is in no sort adviseable that there be any ' Indulgence to such persons who presume to â—…issent from the Act of Uniformity and Religion established for these Reasons We haâ—…e
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
that these Gentlemen have spent all this time to no purpose Lord Ch. Iust. Yes Mr. Attorney I 'le tell you what they offer which it will lie upon you to give an Answer to They would have you shew how this has disturbed the Government or diminished the Kings Authority Mr. Att. Gen. Whether a Libel be true or not as to the matter of Fact was it ever yet in any Court of Justice permitted to be made a question whether it be a Libel or not Or whether the Party be punishable for it And therefore I wonder to hear these Gentlemen to say that because it is not a false one therefore 't is not a Libel Suppose a Man should speak scandalous Matter of any Noble Lord here or of any of my Lords the Bishops and a Scandalum Magnatum be brought for it though that which is spoken has been true yet it has been the Opinion of the Courts of Law that the Party cannot justifie it by reason it tends to the disturbing of the Peace to publish any thing that is matter of Scandal The only thing that is to be lookt into is whether there be any thing in this Paper that is Reflecting and Scandalous and not whether it be true or no for if any Man shall Extra-Iudicially and out of a Legal Course and way reflect upon any of the great Officers of the Kingdom nay if it be but upon any Inferior Magistrate he is to be punished and is not to make his Complaint against them unless he do it in a proper way A Man may Petition a Judge but if any Man in that Petition shall come and tell the Judge Sir you have given an Illegal Judgment against me and I cannot in Honour Prudence or Conscience obey it I do not doubt nor will any Man but that he that should so say would be laid by the Heels though the Judgment perhaps might be illegal If a Man shall come to Petition the King as we all know the Council Doors are thronged with Petitioners every day and Access to the King by Petition is open to every body the most Inferior Person is allowed to Petition the King but because he may do so may he therefore suggest what he pleases in his Petition shall he come and tell the King to his Face what he does is Illegal I only speak this because they say in this Case his Majesty gave them leave to come to him to deliver their Petition but the King did not understand the Nature of their Petition I suppose when he said he gave them leave to come to him My Lord for this Matter we have Authority enough in our Books particularly there is the Case of Wrenham in my Lord Hobart the Lord Chancellor had made a Decree against him and he Petitioned the King that the Cause might be re-heard and in that Petition he Complains of Injustice done him by my Lord Chancellor and he put into his Petition many reflecting things this my Lord was punished as a Libel in the Star Chamber and in that Book it was said that though it be lawful for the Subject to Petition the King against any Proceedings by the Judges yet it must not be done with Reflections nor with Words that turn to the Accusation or Scandal of any of the Kings Magistrates or Officers and the Justice of the Decree is not to be questioned in the Case for there Wrenham in his Defence would have opened the particulars wherein he thought the Decree was unjust but that the Court would not meddle with nor would allow him to justifie for such Illegality in the Decree so in this Case you are not to draw in question the truth or falsehood of the Matter complained against for you must take the way the Law has prescribed and prosecute your Right in a Legal Course and not by Scandal and Libelling My Lord there is a great deal of difference between not doing a thing that is Commanded if one be of Opinion that it is unlawful and coming to the King with a Petition highly reflecting upon the Government and with Scandalous Expressions telling him Sir you Act illegally you require of us that which is against Prudence Honour or Conscience as my Lords the Bishops are pleased to do in this Petition of theirs I appeal to any Lord here that if any Man should give him such Language either by Word of Mouth or Petition whether he would bear it without seeking satisfaction and reparation by the Law My Lord there is no greater proof of the Influence of this Matter than the Croud of this day and the Haâ—…angue that hath been made is it not apparent that the taking this Liberty to Canvas and dispute the Kings Power and Authority and to Censure â—…s Actions possess the People with strange Opinions and raises Discontents and Jealousies as if the free Course of Law were restrained and Arbitrary Will and Pleasure set up instead of it My Lord there is one thing that appears upon the Face of the Information which shews this not to be the right Course and if my Lords the Bishops had given themselves the opportunity of reading the Declaration seriously they would have found in the end of the Declaration that the Ring was resolved to call a Parliament in November might not my Lords the Bishops have acquiesced under their passive Obedience till the Parliament met But nothing would serve them but this and this must be done out of Parliament for which there is no President can be shewn and this must be done in such a manner as your Lordship sees the Consequence of by your Trouble of this Day There is one thing I forgot to speak to they tell us that it is laid Malicious and Seditious and there is no Malice or Sedition found we know very well that that follows the Fact those things arise by Construction of Law out of the Fact. If the thing be illegal the Law says it is Seditious a Man shall not come and say he meant no harm in it That was the Case of Williams in his treasonable Book says he I only intended to warn the King of the Danger approaching and concludes his Book with God save the King but no Man will say that a good Preface at the beginning or a good Prayer at the end should excuse Treason of Sedition in the Body of a Book if I meet another Man in the Street and kill him though I never saw him in my Life the Indictment is that it was ex Malitia Praecogitata as it often happens that a Person kills one he never had acquaintance with before and in favorem vitae if the Nature of the Fact be so the Jury are permitted to find according to the Nature of the Case but in strictness of Law there is Malice implyed But my Lord I think these Matters are so Common and that is a Point that has been so often setled that the form of the Indictment and Information must