Selected quad for the lemma: authority_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
authority_n	king_n	power_n	regal_a	3,088	5	11.3071	5	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A61601	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, John, Lord Bishop of Chichester, Thomas, Lord Bishop of Bath and Wells, Thomas, Lord Bishop of Peterborough, and Jonathan, Lord Bishop of Bristol, in the Court of Kings-Bench at Westminster in Trinity-term in the fourth year of the reign of King James the Second, Annoque Dom. 1688.	Sancroft, William, 1617-1693.; Lloyd, William, 1627-1717.; Turner, Francis, 1638?-1700.; Lake, John, 1624-1689.; Ken, Thomas, 1637-1711.; White, Thomas, 1628-1698.; Trelawny, Jonathan, Sir, 1650-1721.; England and Wales. Court of King's Bench.	1689 (1689)	Wing S564; ESTC R7827	217,926	148

day L. President Yes they were Mr. Soll. Gen. Was this before they appeared in Council L. President Yes it was several days before Mr. Soll. Gen. Then I think now my Lord the matter is very plain Mr. Iust. Allibone Did they acquaint your Lordship that their business was to deliver a Petition to the King. L. President Yes they did Mr. Soll. Gen. And they would have had my Lord read it he says Mr. Attorn Gen. And this was the same day that they did go in to the King. L. President The very same day and I think the same hour for it could not be much longer L. Ch. Iust. Now it is upon you truly it will be presumed to be the same unless that you prove that you delivered another Pray my Lord did you look into the Petition L. President No I refused it I thought it did not concern me Mr. Iust. Powel Did you see them deliver it to the King my Lord L. President I was not in the Room when it was delivered Mr. Iust. Powel They did open their Petition to your Lordship did they L. President They offered me to read it but I did refuse L. Ch. Iust. Will you ask my Lord President any Question you that are for the Defendants Sir Rob. Sawyer No my Lord. Mr. Sol. Gen. Then my Lord we must beg one thing for the sake of the Jury if your Lordship can turn your self a little this way and deliver the Evidence you have given over again that they may hear it L. President My Lord I will repeat it as near as I can I think I shall not vary the Sense The Bishops of St. Asaph and Chichester came to my Office I do not know just the day when but it was to let me know that they came in the Name of the Archbishop and four other of their Brethren Is it necessary I should name them L. Ch. Iust. Do it my Lord if you can L. President They were the Bishops of Ely Bath and Wells Bristol and Peterborough they came to let me know in the Name of the Arch-bishop those four and themselves that they had a Petition to deliver to the King if he would give them leave and desired to know of me which was the best way to do it I told them I would know the King's Pleasure and bring them word again they offered me their Petition to read but I did not think it fit for me to do it and therefore I refused and would not read it but I went immediately to the King and acquainted his Majesty with it and he commanded me to let them know they might come when they would which I immediately did they said they would go and speak with some of their Brethren that were not far off in the mean time I gave order that they should be admitted when they came and they did in a little time return and went first into the Bed-Chamber and then into the Room where the King was Mr. Sol. Gen. And this was before they came and appeared at the Council L. President Yes it was Mr. Pollixfen Your Lordship did not read any thing of the Petition L. President No Sir I did not I refused it Mr. Pollixfen Nor does your Lordship know what Petition they did deliver to the King. L. President I did not know any thing of it from them then L. Ch. Iust. Now you may make your Observations upon this two hours hen now we shall hear what Mr. Finch had ●…her to offer I suppose Then my Lord President went 〈◊〉 Mr. Sol. Gen. I think now it is very plain L. Ch. Iust. Truly I 〈◊〉 〈◊〉 tell you there was a great presumption before but there is a greater now and I think I shall leave it with some effect to the Jury I cannot see but that here is enough to put the Proof upon you they came to the Lord President and asked him how they might deliver a Petition to the King he told them he would go and see what the King said to it they would have had him read their Petition but he refused it he comes and tells them the King said they might come when they would then those two that came to my Lord President went and gathered up the other four the Arch-bishop indeed was not there but they six came and my Lord President gave Direction they should be let in and they did go into the Room where the King was now this with the King 's producing the Paper and their owning it at the Council i●… such a Proof to me as I think will be Evidence to the Jury of the Publication Mr. Pollixfen Then my Lord thus far they only can go the Arch-bishop was not there and so there is no Evidence against him Mr. Sol. Gen. As to the Writing we have given Proof against him for it is all his Hand Mr. Pollixfen That still is in another County and there is nothing proved to be done by my Lord Arch-Bishop in Middlesex and next for the other six Lords my Lord President does not say that this is the Petition that they said they had to deliver to the King nor did he see them deliver any thing to the King but that is left still doubtful and under your Judgment so that it stands upon Presumption not upon Proof that this is the same and left under Consideration Mr. Attor Gen. Then we will leave it fairly to the Jury upon this Fact. Mr. Pollixfen If so then we desire to be heard in our Defence Sir Rob. Sawyer May it please your Lordship and you Gentlemen of the Jury you have heard this Charge which Mr. Attorny has been pleased to make against my Lords the Bishops and that is this That they did conspire to diminish the Royal Authority and Regal Prerogative Power and Government of the King and to avoid the Order of Council and in prosecution of this they did falsely maliciously and seditiously make a Libel against the King under pretence of a Petition and did publish the same in the King's presence This Gentlemen is a very heinous and heavy Charge but you see how short their Evidence is The Evidence they bring forth is only that my Lords the Bishops presented the Paper to the King in the most private and humble manner they could that which they have been so many hours a proving and which they cry up to be as strong an Evidence as ever was given proves it to be the farthest from Sedition in the doing of it that can be and you see what it is it is a Petition to be relieved against an Order of Council which they conceive they were aggrieved by they indeed do not deal fairly with the Court nor with us in that they do not set it forth that it was a Petition L. Ch. Iust. That was over-ruled before Sir Rob. Sawyer I do not insist upon it now so much an Exception to the Information as I do to the Evidence they set this forth to be

there was nothing of Sedition nothing of Malice nothing of Scandal in it nothing of the Salt and Vinegar and Pepper that they have put into the Case We shall prove the Matters that I have open'd for our Defence and then I dare say your Lordship and the Jury will be of Opinion we have done nothing but our Duty Mr. Finch May it please your Lordship and you Gentlemen of the Jury This Information sets forth as you may observe upon opening it that the King having by his Royal Prerogative set forth his Declarations that have been read and made an Order of Council for the Reading the said Declarations in the Churches and that the Archbishop and Bishops should severally send them into their Diocesses to be read my Lords the Bishops that are the Defendants did consult and conspire together to diminish the Kingly Authority and Royal Prerogative of the King and his Power and Government in his Regal Prerogative in setting forth his Declaration and that in prosecution of that Conspiracy they did contrive as it was laid in the Information a malicious seditious scandalous false and feigned Libel under pretence of a Petition and so set forth the Petition and that they published the Petition in the presence of the King. To this Charge in the Information Not Guilty being pleaded the Evidence that hath been given for the King I know hath been observed by the Court and the Jury and I know will be taken into Consideration how far it does come up to the Proof of the Delivery of this Petition by my Lords the Bishops for all that was said till my Lord President was pleas'd to come was no Evidence of any Delivery at all and my Lord Pre●…dent's Evidence is that they were going to deliver a Petition but whether they did deliver it or did it not or what they did deliver he does not know This is all the Evidence that has been given for the King. But supposing now my Lord that there were room to presume that they had delivered this Petition set forth in the Information let us consider what the Question is between the King and my Lords the Bishops The Question is Whether they are guilty of Contriving to diminish the King's Regal Authority and Royal Prerogative in his Power and Government in setting forth this Declaration Whether they are guilty of the making and presenting a malicious seditious and scandalous Libel and whether they have published it as it is said in the Information in the King's Presence So that the Question is not now reduced to this Whether this Paper that is set forth in the Information was delivered to the King by my Lords the Bishops but whether they have made a malicious seditious and scandalous Libel with an Intent to diminish the King's Royal Prerogative and Kingly Authority And then if you Gentlemen should think that th●… is Evidence given sufficient to prove that my Lords the Bishops have delivered to the King that Paper which is set forth in the Information yet unless they have delivered a false malicious seditious and scandalous Libel unless they have published it to stir up Sedition in the Kingdom and unless they have contrived this by Conspiracy to diminish the King 's Royal Prerogative and Authority and that Power that is said to be i●… the King my Lords the Bishops are not guilty of this Accusation There are in this Declaration several Clauses which upon reading of the Information I am sure cannot but have been observed by you Gentlemen of the Jury and one special Clause hath been by the Council already opened to you and I shall not enlarge upon it My Lord This Petition that is thus delivered to the King if it be a Libel a scandalous and seditious Libel as the Information calls it it must be so either for the Matter of the Petition or for the Persons that deliver'd the Petition or for the manner of their presenting and delivering it But neither for the Matter nor for the Persons nor for the manner of presenting it is there any Endeavour to dim●…nish the King 's Royal Prerogative nor to stir up Sedition nor Reflection upon the King 's true Royal and Kingly Authority The Petition does humbly set forth to His Majesty that there having been such a Declaration and such an Order of Council they did humbly represent to His Majesty that they were not averse to any thing commanded them in that Order in respect to the just and due Obedience that they owed to the King nor in respect of their want of a due Tenderness to those Persons to whom the King had been pleased to shew his Tenderness but the Declaration being founded upon a Power of Dispensing which had been declared illegal in Parliament several times and particularly in the Years 1662 72 and 85. they did humbly beseech His Majesty they not being able to comply with his Command in that matter that he would not insist upon it Now my Lord Where is the Contrivance to diminish the King's Regal Authority and Royal Prerogative This is a Declaration founded upon a Power of Dispensing which undertakes to suspend all Laws Ecclesiastical whatsoever for not Coming to Church or not Receiving the Sacrament or any other Nonconformity to the Religion established or for or by reason of the Exercise of Religion in any manner whatsoever Ordering that the Execution of all those Laws be immediately suspended and they are thereby declared to be suspended as if the King had a Power to suspend at once all the Laws relating to the establish'd Religion and all the Laws that were made for the Security of our Reformation These are all suspended by His Majesty's Declaration as it is said in the Information by virtue of his Royal Prerogative and Power so to do Now my Lord I have always taken it with Submission that a Power to abrogate Laws is as much a part of the Legislature as a Power to make Laws A Power to lay Laws asleep and to suspend Laws is equal to a Power of Abrogating them for they are no longer in Being as Laws while they are so laid asleep or suspended And to abrogate all at once or to do it time after time is the same thing and both are equally parts of the Legislature My Lord In all the Education that I have had in all the small Knowledge of the Laws that I could attain to I could never yet hear of or learn that the Constitution of this Government in England was otherwise than thus That the whole Legislative Power is in the King Lords and Commons the King and his two Houses of Parliament But then If this Declaration be founded upon a part of the Legislature which must be by all Men acknowledged not to reside in the King alone but in the King Lords and Commons it cannot be a legal and true Power or Prerogative This my Lord has been attempted but in the last King's time it never was pretended till

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 Ha●…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 ●…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

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 Necessitie●… and so he was minded to re●… 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 Bishop●… fancy or imagine that this is to be imposed upon the King or upon the Court for a Declaration in Parliament Then last of all for that in 1685. in this King's time What is it The Commons make an Address to the King and Complain to his Majesty of some of his Officers in his Army that might pretend to have a Dispensation something of that Nature contrary to the Test Act And what is done upon it They make their Application to the King and the King Answers them and that is all But since it is spoken of in the Court I would take notice That it is very well known by the Case of Godding and Hales the Judgment of this Court was against the Opinion of that Address But what sort of Evidence is all this Would you allow all the Addresses of the House of Commons to be Evidence Give me leave to say it my Lord If you suffer these Votes these Copies of Imperfect Bills these Addresses and Applications of one or both Houses to the King to be Evidence and Declarations in Parliament then what will become of the Bill of Exclusion Shall any Body mention that Bill of Exclusion to be a Declaration in Parliament If so then there is Declaration against Declaration the Declaration of the Commons against the Declaration of the Lords I know not what Judgment my Lords the Bishops may be of now concerning those things of Votes and Addresses being Declarations in Parliament but I am sure they have spoken against it heretofore nay I am sure some of them have Preached against it And if my Lords the Bishops have said These are Declarations in Parliament and they are not Declarations in Parliament and if they accuse the King of having done an Illegal thing because he has done that which has been declared in Parliament to be Illegal when it was never so declared then the Consequence is very plain That they are Mistaken sometimes and I suppose by this time they believe it I dare say it will not be denied me That the King may by his Prerogative Royal issue forth his Proclamation it is as essential a Prerogative as it is to give his assent to an Act of Parliament to make it a Law. And it is another Principle which I think cannot be denied That the King may make Constitutions and Orders in Matters Ecclesiastical and that these he may make out of Parliament and without the Parliament If the King may do so and these are his Prerogatives then suppose the King does issue forth his Royal Proclamation and such in effect is this Declaration under the Great Seal in a Matter Ecclesiastical by Virtue of his Prerogative Royal and this Declaration is read in the Council and published to the World and then the Bishops come and tell the King Sir you have issued out an Illegal Declaration being contrary to what has been declared in Parliament when there is no Declaration in Parliament Is not this a Diminishing the King's Power and Prerogative in issuing forth his Declaration And making Constitutions in Matters Ecclesiastical Is not this a questioning of his Prerogative Do not my Lords the Bishops in this Case raise a question between the King and the People Do not they as much as in them lyes stir up the People to Sedition For who shall be Judg between the King and the Bishops Says the King I have such a Power and Prerogative to issue forth my Royal Proclamation and to make Orders and Constitutions in Matters Ecclesiastical and that without the Parliament and out of Parliament Say my Lords the Bishops You have done so but you have no Warrant for it Says the King Every Prince has done it and I have done no more than what is my Prerogative to do But this say the Bishops is against Law. How shall this be tryed Should not the Bishops have had the Patience to have waited till a Parliament came When the King himself tells them he would have a Parliament in November at furthest L. Ch. Iust. Pray Mr. Sollicitor come close to the business for it is very late Mr. Sol. Gen. My Lord I beg your Patience you have had a great deal of Patience with them pray spare me a little I am saying when the King himself tells them that he would have a Parliament in November at furthest yet they have no Patience to stay till November but make this Application to him Is not this raising a Question upon the King's Prerogative in issuing forth Declarations and upon the King's Power and Right in Matters Ecclesiastical And when I have said this that my Lords the Bishops have so done If they have raised a Question upon the Right of the King and the Power of the King in Matters Ecclesiastical then they have stirred up Sedition That they have so done is pretty plain and for the Consequence of it I shall appeal to the Case in the 2 Cro. 2. Iac. 1. That is a plain direct Authority for me Mr. Iust. Powel Nay Mr. Sollicitor we all very well know to deny the King's Authority in Temporals and Spirituals as by Act of

giving Reasons for the Disobedience in a Libellous Petition and I am going on to that The Declaration is said in the Petition to be Illegal which is a Charge upon the King That he has done an Illegal Act. They say they cannot in Honor Conscience or Prudence do it which is a Reflection upon the Prudence Justice and Honour of the King in Commanding them to do such a thing And this appearing to have been delivered to the King by my Lords the Bishops Persons to whom certainly we all owe a Deference as our Spiritual Masters to believe what things they say as most likely to be true and therefore it having an Universal Influence upon all the People I shall leave it here to your Lordship and the Jury whether they ought not to Answer for it Mr. Recorder Will your Lordship please to spare me one Word L. Ch. Iust. I hope we shall have done by and by Mr. Recorder If your Lordship don't think fit I can sit down L. Ch. Iust. No no go on Sir Barth Shore you 'll say I have spoiled a good Speech Mr. Recorder I have no good one to make my Lord I have but a very few Words to say L. Ch. Iust. Well go on Sir. Mr. Recorder That which I would urge my Lord is only this I think my Lord we have Proved one Information and that they have made no Answer to it for the Answer they have made is but Argumentative and taken either from the Persons of the Defendants as Peers or from the Form of its being a Petition As Peers it is said they have a Right to Petition to and Advise the King but that is no Excuse at all for if it contains Matter Reproachful or Scandalous it is a Libel in Them as well as in any other Subject and they have no more Right to Libel the King than His Majesties other Subjects have nor will the Priviledge of their Peerage exempt them from being Punished And for the Form of this Paper as being a Petition there is no more Excuse in that neither For every Man has as much Right to Publish a Book or Pamphlet as they had to Present their Petition And as it would be Punishable in that Man to Write a Scandalous Book so it would be Punishable in them to make a Scandalous and a Libellous Petition And the Author of Iulian the Apostate because he was a Clergy Man and a Learned Man too had as much Right to Publish his Book as my Lords the Bishops had to Deliver this Libel to the King. And if the City of London were so severely Punished as to lose their Charter for Petitioning for the Sitting of a Parliament in which there were Reflecting Words but more Soft Mr. Iust. Holloway Pray good Mr. Recorder don't compair the Writing of a Book to the Making of a Petition for it 's the Birth-right of the Subject to Petition Mr. Recorder My Lord it was as Lawful for the City of London to Petition for the Sitting of a Parliament as it was for my Lords the Bishops to give Reasons for their Disobedience to the King's Command And if the Matter of the City of Londons Petition was reckoned to be Libellous in saying that what the King had done in Dissolving the Parliament was an Obstruction of Justice what other Construction can be made of my Lords the Bishops saying that the King's Declaration is Illegal And if the Matter of this Petition be of the same Nature with that of the City of London your Lordship can make no other Judgment of it but that it ought to have the same Condemnation Mr. Iust. Powel Mr. Recorder you will as soon bring the Two Poles together as make this Petition to agree with Iohnson's Book they are no more alike than the most different things you can name Mr. Serj. Trinder My Lord I have but one Word L. Ch. Iust. How unreasonable is this now that we must have so many Speeches at this time of Day But we must hear it go on Brother Mr. Serj. Trinder My Lord if your Lordship pleases That which they seem most to insist upon on the other side and which has not been much spoken to on our side is That this Power which His Majesty has Exerted in setting forth His Declaration was Illegal and their Arguments were Hypothetical If it were Illegal they had not Offended and they offered at some Arguments to prove it Illegal But as to that my Lord we need not go much further than a Case that is very well known here which I crave leave to mention only because the Jury perhaps have not heard of it and that was the Case of Sir Edward Hales where after a long Debate it was Resolved That the King had a Power to Dispense with Penal Laws But my Lord if I should go higher into our Books of Law that which they seem to make so strange of might easily be made appear to have been a frequent and constant practice L. Ch. Iust. That is quite out of the Case Brother Mr. Serj. Trinder I beg your Lorships Favour for a Word or two if your Lordship please to Consider the Power the King has as Supreme Ordinary we say he has a Power to Dispense with these Statutes as he is King and to give Ease to his Subjects as Supreme Ordinary of the whole Kingdom and as having Supreme Ecclesiastical Authority throughout the Kingdom There might be abundance of Cases cited for this if there were need the Statute of primo Eliz. doubtless is in Force at this time and a great many of the Statutes that have been made since that time have express Savings of the King's Supremacy so that the King's Power is Unquestionable And if they have come and Questioned this Power in this manner by referring themselves to the Declarations in Parliament they have done that which of late Days has been always look'd upon as an Ill thing as if the King's Authority was under the Suffrages of a Parliament But when they come to make out their Parliament Declarations there was never a one unless it be first in Richard the Seconds time that can properly be called a Parliament Declaration so that that of the several Parliaments is a Matter perfectly mistaken and if they have mistaken it it is in the Nature of false News which is a Crime for which the Law will Punish them More things might be added but I consider your Lordship has had a great deal of Patience already and much time has been spent and therefore I shall conclude begging your Lordships Pardon for what I have said L. Ch. Iust. I do assure you if it had not been a Case of great Concern I would not have heard you so long It is a Case of very great Concern to the King and the Government on the one side and to my Lords the Bishops on the other and I have taken all the Care I can to observe what has been said on both sides 'T

is not yet a Question Mr. Finch But it is and this the fittest time for it Mr. Soll. Gen. Pray will you hear us quietly what we have to say and then answer us with Reason if you can I think we are in a proper way but they are not my Lord for as I said my Lords the Bishops are brought by the Kings Writ upon our Motion for the King not upon theirs and now we have them here before the Court We for the King would charge them with an Information which Information that they and the Court may know what it is they are charged with we pray it may be read to them by the Clerk and when it is read let these Gentlemen say what they will for them they shall have their time to speak but certainly they ought not to obstruct the Kings Proceedings nor oppose the Reading of the Information to these noble Lords who are brought here in Custody into Court to this very purpose that they may be charged with this Information Mr. S. Pemberton But we have somewhat to say before you can come to that Mr. Sollicitor Mr. Soll. Gen. You ought not to be heard as yet M. S. Pemberton Under favour we ought to be heard Sir Rob. Sawyer My Lord Mr. Sollicitor has opposed our being heard but we now desire he would hear our answer to it and that which we have to say is this That my Lords the Bishops are not here Regularly in the Court to be charged with an Information and if the Law be not with us in this point as we doubt not to make appear it is no question but when your Lordship has heard what we have to say you will give a Right Rule in it My Lord we say that by the Rules of Law no man ought to be Charged with an Information or Indictment by the Express Statute of Edward the Third unless he come into Court by Legal process that is a standing Rule and the practice of this and all other Courts is pursuant to it Now in this Court you have several processes that go out of this Court and he that comes as taken by vertue of a Capias or an Attachment after a Summons or by Venire in the nature of a Subpoena I say he that comes in upon these processes may be Charged with an Information but where a person is in Prison Committed by another Jurisdiction and another Authority then that of this Court when the ●…risoner is brought here by Habeas Corpus the first thing the Court has to do is to enquire whether he be Legally Committed to that end the Return is filed and the party has leave to make his Exceptions to it as we do in this Case My Lords are brought here upon a Habeas Corpus the Return of which has been read and now the Return is filed we are proper to move that my Lords may be discharged for you now see what they are Committed for it is for a Misdemeanour in making and publishing a Libel that 's the matter for which they are Committed and it appears by the Return likewise that they who are thus Committed are Peers of the Realm for so my Lords the Bishops all are and for a Misdemeanour they ought not by Law to have been Committed L. C. I. You go too far now Sir Robert Sanyer I would willingly hear you whatsoever you have to say but then it must be in its due time Mr. Att. Gen. This very discourse indeed I have heard has pass'd up and down the Town for Law We may see now whence they had it Mr. Sol. Gen. I know it has heretofore been urged by me but denyed by them who now urge it and I am glad that they now learn of me to tack about L. C. I. Look you Gentlemen do not fall upon one another but keep to the matter before you Mr. S. Pemberton So we would my Lord if the Kings Councel would let us First we say we being brought here upon a Return of a Habeas Corpus there was neither at the time of the Commitment Cause to Imprison us nor was there by the Warrant any Cause to detain us in Prison and for that besides what has been hinted at we say further that here it is returned that we were Committed by such and such Persons Lords of the Privy Council but the Return doth not say that it was done by them as Lords of the Privy Council which must be in Council for if it be not in Council they have not power to make such a Warrant for the Commitment of any Person and that we stand upon here is a Return that is not a good Return of a Legal Commitment and therefore we pray my Lords may be discharged Mr. Pollexfen Pray my Lord spare me a word that is the thing we humbly offer to your Lordships Consideration and under Favour I think we are proper both as to the Matter and as to the Time the Return is now filed before you if by this Return there appears to have been such a Cause to Commit these Lords to Prison as is Legal then we acknowledge they may in a Legal Course be brought to answer for their Offence but with Submission it appears not by any thing that is in this Return that my Lords the Bishops were Committed by the Order of the Privy Council All that is said is That they were Committed by my Lord Chancellor and those other Persons named Lords of the Privy Council which we conceive is not a good Return for they can do nothing as Lords of the Privy Council except only as they are in Council and by Order made in Council except that do appear they have no Power to Commit then take the Case to be so here is a man Committed by one that has no Authority to Commit him and he is brought by Habeas Corpus into this Court what shall the Court do with him Shall they charge him with an Information No it does appear that he was never in Custody but under a Commitment by those who had no Legal Power to Commit him and therefore he must be discharged and that we pray for my Lords the Bishops What the Kings Councel may have to say to them afterwards by way of Information or otherwise they must take the Regular Methods of the Law to bring my Lords the Bishops to answer but as the Case stands here before you upon this Return it does appear they had no Authority to Commit them by whose Warrant they were Committed and therefore this Court has nothing to do but to discharge them Mr. Finch I beg your Lordships leave to say one word farther on the same side I think with humble Submission this is the most proper time for us to make this Motion for here is a Habeas Corpus Returned this Return is filed and then the Kings Councel move to Charge my Lords the Bishops with an Information that Motion of theirs we say is too soon

have been in Surrey or otherwise they must hold that the Answer to the King's Question this is my Hand is a Publication But truly my Lord I think neither of these will do But my Lord to me this is a great Evidence in it self against the Proof of a Publication the Care and Wariness that has been used that there should be nothing at all of this Matter known from the time that it was written to the time that they came to be examined and summoned to appear as Offenders My Lord the Nature of Libels is to publish and proclaim Scandal and Defamation or else it loses its End and consequently its Name This as it stands upon their Evidence is a monstrous Proof for my Lords the Bishops against the King's Council for it seems 't is a very private Matter so cautiously and warily carried that there is not any Evidence of the Fact but only the Names of the persons that writ it till they come to be examined by the greatest Authority Is this your Hand and then they own it so to be how can this be taken to be a Publication and it will be a thing of wonderful Consequence if an Answer to a Question put by Authority should amount to a Crime as it would in this Case that would be as if Authority that should be employed to do Right would be turned to do the greatest Wrong for it is the Duty of all men to answer when examined by a lawful Authority and it would never be offered at sure in any other Case If a Man comes before a Magistrate and confesses any thing that indeed is Evidence but is not a Crime for there is a great deal of difference between Evidence and the Crime but that this should be both an Evidence and a Crime too is I think a very strange Construction and for the other part the writing of it I suppose the Court is satisfied that it was in another County Sir Geo. Treby I desire your Lordship to spare me a Word which I think has not been observed by the Council that have spoke before The Question that remains is Whether my Lords the Bishops did Publish this Paper This is a matter of Fact that lies upon the Prosecutors to prove Now I think they are so far from having proved that the Bishops did publish it that on the contrary they have proved that their Lordships did not Publish it The Evidence they have offered for this matter is a Confession This Confession is testified by Mr. Blathwayt and he says the Bishops were ask'd at the Council whether they did subscribe and publish this paper and that their answer was that they did subscribe but not publish it Now a Confession must be taken together and must be admitted to be intirely true by them that produce it they shall never be allowed to take out and use one piece and wave the rest Why then by this Evidence of Confession taken as it ought it appears that the Bishops though they did subscribe did not publish the paper So that I say the King's Counsel have hereby plainly proved that the Bishops did not publish this paper and yet this is the onely Evidence upon which they would infer that they did publish it Mr. Att. Gen. Look you it does lie upon you Gentlemen to prove it was done elsewhere than in Middlesex Mr. Finch Sure Mr. Attorney is in jest Mr. Att. Gen. No I am in good earnest all the proof that we have given has been in Middlesex and you can best tell whether you did it in Middlesex or no. Mr. Finch My Lord we have done as to this Objection for we say they have not proved their Case L. Ch. Iust. Mr. Finch you may observe and I am sure you do observe as well as any body in all Cases but I say you may observe that they are off of every thing but causing it to be published now that does lie upon the King's Counsel to prove that my Lords the Bishops did cause it to be published for their owning of their hands does not amount to a Publication Mr. S. Pemberton My Lord We are upon this point with them whether here be any Evidence of a Publication at all Mr. Iust. Powell Pray let us clear this first for if there be no publication there can be no causing of it to be published Mr. Att. Gen. My Lord if you think fit we shall go on and reserve this point till afterwards Mr. Sol. Gen. They may make Objections if they think fit L 〈◊〉 Iust. So they may and they say if these Objections are with us we need go no farther Mr. S. Pemberton But my Lord if they be not with us we have a reserve to give a farther Answer to it and to offer Evidence against the Evidence they have offered Mr. Sol. Gen. With all our hearts give in Evidence what you can Mr. Att. Gen. Then pray my Lord let us go on to answer this Objection L. Ch. Iust. Pray do Mr. Attorney Mr. Att. Gen. My Lord and Gentlemen of the Jury I would first observe how far we have gone That there was such a paper written is clear beyond all question and written by my Lord Archbishop of Canterbury and that it was signed by the rest of the Bishops but not in the County of Middlesex and that this paper was published is agreed on all hands Mr. Iust. Holloway No they do not agree that Mr. Att. Gen. Do I say it was published by them but there was such a paper published Mr. S. Pemberton No we say it was never published at all L. Ch. Iust. Pray Brother Pemberton be quiet if Mr. Attorney in opening does say any thing that he ought not to say I will correct him as I would do any body that does not open things right as they are proved but pray don 't you that are at the Bar interrupt one another it is unbecoming men of your Profession to be chopping in and snapping at one another Go on Mr. Attorney Mr. Att. Gen. I say that the Paper is proved to be written and signed by my Lords the Bishops that I take for granted and that the Paper so signed and written is now published to the world is also evident but the question is who it was done by or who caused it to be done we are reduced to that question Now first it is agreed on all hands that if I send a Letter to a private Man containing Scandalous things in it though there is no proof more but that it was sent sealed and received by the party in that Case it was a fault punishable in the Star-Chamber as a Crime but now that this was received by the King and written by them there is no room for doubt for you hear it was produced by the King at the Council-Board and they asked upon it if it were their hands that the King did receive it there is no room for question or that they did write it but

a scandalous matter but it only contains their Reasons whereby they would satisfy his Majesty why they cannot comply in a Concurrence with his Majesty's Pleasure and therefore they humbly beseech the King and beg and request him as the words of it are that his Majesty would be pleased not to insist upon their distributing and reading of this Declaration so the Petitioners on behalf of themselves and the whole Clergy of England beg of the King that he would please not to insist upon it Gentlemen you may observe it that there is nothing in this Petition that contains any thing of Sedition in it and it would be strange this Petition should be Felo de se and by one part of it destroy the other it is laid indeed in the Information that it was with intent and purpose to diminish the King's Royal Authority but I appeal to your Lordship the Court and the Jury whether there be any one word in it that any way touches the King's Prerogative or any tittle of Evidence that has been given to make good the Charge It is an Excuse barely for their non-Complyance with the King's Order and a begging of the King with all Humility and Submission that he would be pleased not to insist upon the reading of his Majesty's Declaration upon these grounds because the Dispensing Power upon which it was founded had been several times in Parliament declared to be against Law and because it was a Case of that Consequence that they could not in Prudence Honour or Conscience concur in it My Lord Mr. Attourny has been pleased to charge in this Information that this is a false malicious and seditious Libel both the falsity of it and that it was malicious and seditious are all Matters of Fact which with Submission they have offered to the Jury no proof of and I make no question but easily to demonstrate the quite contrary For my Lord I think it can be no question but that any Subject that is Commanded by the King to do a Thing which he conceives to be against Law and against his Conscience may humbly apply himself to the King and tell him the Reason why he does not that thing he is commanded to do why he cannot concur with his Majesty in such a Command My Lord that which Mr. Attorney did insist upon in the beginning of this Day and he pretended to cite some Cases for it was that in this Case my Lords the Bishops were not sued as Bishops nor prosecuted for their Religion truly My Lord I do not know what they are sued for else the Information is against them as Bishops it is for an Act they did as Bishops and no otherwise and for an Act they did and do conceive they lawfully might do with relation to their Ecclesiastical Polity and the Government of their People as Bishops The next thing that Mr. Attorney offered was that it was not for a Non-feasance but for a Feasance it is true my Lord it is for a Feasance in making of the Petition but it was to excuse a Non-feasance the not reading according to the Order and this sure was lawful for all the Bishops as Subjects to do and I shall shew it was certainly the duty of my Lords the Bishops or any Peer of the Realm to do the same in a like Case It was likewise said they were prosecuted here for affronting the Government and intermedling with Matters of State but I beg your Lordship and the Jury to consider whether there is one tittle of this mentioned in the Petition or any Evidence given of it the Petition does not meddle with any thing of any Matter of State but refers to an Ecclesiastical Matter to be executed by the Clergy and to a Matter that has relation to Ecclesiastical Causes so that they were not Busybodies or such as meddled in Matters that did not relate to them but that which was properly within their Sphere and Jurisdiction But after all there is no Evidence nor any sort of Evidence that is given by Mr. Attorney that will maintain the least tittle of this Charge and how he comes to leave it upon this sort of Evidence I cannot tell all that it amounts to is That my Lords the Bishops being greived in this manner made this Petition to the King in the most private and respectful manner and for him to load it with such horrid black Epithets that it was done Libellously Maliciously and Scandalously and to oppose the King and Government 't is very hard 't is a Case of a very extraordinary Nature and I believe my Lords the Bishops cannot but conceive a great deal of trouble that they should lie under so heavy a Charge and that Mr. Attorney should draw so severe an Information against them when he has so little Proof to make it out My Lord by what we have to say to it we hope we shall give your Lordship and the Jury Satisfaction that we have done but our Duties supposing here has been a sufficient Evidence of the Fact given which we leave to your Lordship and the Jury My Lord we say in short That this Petition is no more than what any Man if he be Commanded to do any thing might humbly do it and not be guilty of any Crime And my Lord as to the Matter of our Defence it will consist of these Heads First We shall Consider the Matter of this Petition Secondly The Manner of the delivering it according as they have given Evidence here and Thirdly the Persons that have delivered this Petition And we hope to make it appear beyond all question that the Matter contained in this Petition is neither false nor contrary to Law but agreeable to all the Laws of the Land in all Times We shall likewise shew you though that appear sufficiently to you already that the Manner of delivering it was so far from being Seditious that it was in the most secret and private manner and with the greatest Humility and Duty imaginable And then as to the Persons we shall shew you that they are not such as Mr. Attorney says who meddle with Matters of State that are of out their Sphere but they are Persons concerned and concerned in Interest in the Case to make this humble application to the King. And when we have proved all this Matter you will see how strangely we are blackned with Titles and Epithets which we no ways deserve and of which God be thanked there is no Proof For my Lord for the Matter of the Petition we shall consider two things The First is The Prayer which is this They humbly beg and desire of the King on behalf of themselves and the rest of the Clergy that he would not insist upon the Reading and Publishing of this Declaration Surely my Lord there is nothing of Falsity in this nor any thing that is contrary to Law or unlawful for any Man that is pressed to any thing especially by an Order of

then and in that first Attempt it was so far from being acknowledged that it was taken notice of in Parliament and declared against So it was in the Years 1662. and 1672. In the Year 62. where there was but the least Umbrage given of such a Dispensing Power although the King had declared in his Speech to the Parliament that he wished he had such a Power which his Declaration before seemed to assume the Parliament was so jealous of this that they immediately made their Application to His Majesty by an Address against the Declaration and they give Reasons against it in their Address One in particular was That the King could not dispense with those Laws without an Act of Parliament There was another Attempt in 1672. and then after His Majesty had in his Speech mentioned his Declaration to them the Parliament there again particularly the House of Commons did humbly address to His Majesty setting forth that this could not be done by Law without an Act of Parliament And your Lordship by and by upon reading the Record will be satisfied what was the Event of all this His Majesty himself was so far pleased to concurr with them in that Opinion that he cancell'd his Declaration tore off the Seal and caused it to be made known to the House of Lords by the Lord Chancellor who by His Majesty's Command satisfied the House of it that His Majesty had broken the Seal and cancell'd the Declaration with this further Declaration which is enter'd in the Records of the House That it should never be drawn into Example or Consequence My Lord The Matter standing thus in respect to the King's Prerogative and the Declarations that had been made in Parliament consider next I beseech you how far my Lords the Bishops were concerned in this Question humbly to make their Application to the King. My Lords the Bishops lying under a Command to publish this Declaration it was their Duty as Peers of the Realm and Bishops of the Church of England humbly to apply themselves to His Majesty to make known their Reasons why they could not obey that Command and they do it with all Submission and all Humility representing to His Majesty what had been declared in Parliament and it having been so declared they could not comply with his Order as apprehending that this Declaration was founded upon that which the Parliament declared to be illegal and so His Majesty's Command to publish this Declaration would not warrant them so to do This they did as Peers and this they had a Right to do as Bishops humbly to advise the King. For suppose my Lord which is not to be supposed in every Case nor do I suppose it in this but suppose that there might be a King of England that should be mis-led I do not suppose that to be the Case now I say but I know it hath been the Case formerly that the King should be environed with Counsellors that had given him evil Advice it has been objected as a Crime against such evil Counsellors that they would not permit and suffer the Great Men of the Kingdom to offer the King their Advice How often do we say in Westminster-Hall That the King is deceived in his Grant There is scarce a Day in the Term but it is said in one Court or other but it was never yet thought an Offence to say so And what more is there in this Case My Lord If the King was mis-informed or under a Mis-apprehension of the Law my Lords as they are Peers and as they are Bishops are concerned in it and if they humbly apply themselves to the King and offer him their Advice where is the Crime My Lord These noble Lords the Defendants had more than an ordinary Call to this for besides the Duty of their Office and the Care of the Church that was incumbent on them as Bishops they were here to become Actors for they were by that Order of Council commanded themselves to publish it and to distribute it to the several Ministers in their several Diocesses with their Commands to read it Therefore they had more than ordinary Reason to concern themselves in the Matter Next We are to consider my Lord in what manner this was done They make their Application to the King by an humble Petition with all the Decency and Respect that could be shewn asking leave first to approach his Person and having leave they offer'd my Lord President the Matter of their Petition that nothing might seem hard or disrespectful or as if they intended any thing that was unfit to be avowed When they had taken all this Care in their Approach and begging leave for it they come secretly to the King in private when he was all alone and there they humbly present this Petition to His Majesty Now how this can be called the Publication of a malicious and seditious Libel when it was but the Presenting of a Petition to the King alone And how it can be said to be with an Intent to stir up Sedition in the People against His Majesty and to alienate the Hearts of his People from him when it was in this private manner delivered to him himself only truly I cannot apprehend My Lord I hope nothing of this can be thought an Offence If the Jury should think that there has been Evidence sufficient given to prove that my Lords the Bishops did deliver this Paper to the King yet that is not enough to make them guilty of this Information unless this Paper be likewise found to be in Diminution of the King 's Royal Prerogative and Regal Authority in dispensing with and suspending of all Laws without Act of Parliament Unless it be found to be a Libel against the King to tell him That in Parliament it was so and so declared And unless the presenting this by way of Petition which is the Right of all People that apprehend themselves aggrieved to approach His Majesty by Petition be a Libelling of the King And unless this humble Petition in this manner presented to the King in private may be said to be a malicious and seditious Libel with an Intent to stir up the People to Sedition Unless all this can be found there is no Man living can ever find my Lords the Bishops guilty upon this Information Therefore my Lord we will go on and make out this Matter that we have opened to your Lordship if Mr. Attorney and Mr. Sollicitor think fit to argue the Points that we have opened Mr. Pollixfen Pray my Lord spare me a Word on the same Side For the first Point It is a Point of Law whether the Matter contained in this Petition be a Libel The King's Council pretend it is so because it says the Declaration is founded upon a Power the Parliament has declared to be illegal But we say that whatsoever the King is pleased to say in any Declaration of his it is not the King 's saying of it that makes

it to be Law. Now we say This Declaration under the Great Seal is not agreeable to the Laws of the Land and that for this Reason Because it does at one Blow set aside all the Law we have in England My Lord If this be denied we must a little debate this matter for they are almost all Penal Laws not only those before the Reformation but since upon which the whole Government both in Church and State does in a great measure depend Especially my Lord in Matters of Religion they are all Penal Laws For by the Act of Uniformity which my Lords the Bishops are sworn to observe and adjured by an express Clause in the Act No Man is to preach unless he be Episcopally ordained no Man is to preach without a Licence If all this be set aside I confess then it will go very far into the whole Ecclesiastical Government If this be denied we are ready to argue that too L. C. I. They are to do so still Mr. Pollixfen My Lord I am sure the Consequence is otherwise if this Declaration signifie any thing And if it be the Will of the King my Lord the Will of the King is what the Law is If so be the King 's Will be not consonant to the Law it is not obliging My Lord The Cases that we have had of Dispensations are all so many strong Authorities against a general or particular Abrogation My Lord that is a Matter of Law which if it fall out to be any way doubtful it will be fit to have it debated and setled If they will say that the Penal Laws in Matters Ecclesiastical can be abrogated or nulled or made void pro tempore or for Life without the meeting of the King and People in Parliament I must confess they say a great thing as it is a Point of great Concern but I think that will not be said And all that has been ever said in any Case touching Dispensations proves quite the contrary and asserts what I affirm For Why should any Man go about to argue that the King may dispense with this or that particular Law if at once he can dispense with all the Law by an undoubted Prerogative This is a Point of Law which we insist upon and are ready to argue with them but we will go on with the rest of those things that we have offer'd And first we will read the Act of Uniformity made 1 Eliz. that Clause of it where they are so strictly charged to see to the Execution of that Law. This Act my Lord by the Act of Uniformity made in the Beginning of the late King's Reign is revived with all the Clauses in it relating to this Matter If then this be a Duty incumbent upon them and their Oaths require it of them and if they find that the Pleasure of the King in his Declaration is that which is not consonant to this Law what can they do Can any thing be more humble or done with a more Christian Mind than by way of Petition to inform the King in the Matter For I never thought it nor hath it ever sure been thought by any body else to be a Crime to petition the King For the King may be mistaken in the Law so our Books say and we every Day in Westminster-Hall argue against the King's Grants and say He is deceived in his Grants It is the great Benefit and Liberty which the King gives to his Subjects to argue the Legality or Illegality of his Grants My Lord When all this is done to make this to be a Libel by putting in the Words Malicious Seditious Scandalous and with an Intent to raise Sedition would be pretty hard My Lord We pray that Clause of the Statute may be read Mr. Soll. Gen. What for Mr. Pollixfen It is a general Law and therefore the Court will take notice of it and we pray the Jury may hear it read Mr. Soll. Gen. I agree it to be as Mr. Pollixfen has opened and I agree it to be as Sir Robert Sawyer has opened it Mr. S. Pemberton My Lord We shall put it upon a short Point My Lords the Bishops are here accused of a Crime of a very heinous nature as can be they are here branded and stigmatized by this Information as if they were seditious Libellers when my Lord it will in truth fall out that they have done no more than their Duty their Duty to God their Duty to the King and their Duty to the Church For in this Case that which we humbly offer to your Lordship and insist upon it as very plain is this That the Kings of England have no power to suspend or dispense with the Laws and Statutes of the Kingdom that establish our Religion That is it which we stand upon for our Defence And we say That such a Dispensing Power with Laws and Statutes is a thing that strikes at the very Foundation of all the Rights Liberties and Properties of the King's Subjects whatsoever If the King may suspend the Laws of the Land which concern our Religion I am sure there is no other Law but he may suspend And if the King may suspend all the Laws of the Kingdom what a Condition are all the Subjects in for their Lives Liberties and Properties All at Mercy My Lord The King 's Legal Prerogatives are as much for the Advantage of his Subjects as of himself and no Man goes about to speak against them But under pretence of Legal Prerogatives to extend the Power of the King to support a Prerogative that tends to the Destruction of all his Subjects their Religion and Liberties in that I think they do the King no Service who go about to do it But now we say with your Lordship's Favour that these Laws are the great Bulwark of the Reformed Religion they are in truth that which fenceth the Religion and Church of England and we have no other Humane Fence besides They were made upon a Fore-sight of the Mischief that had and might come by false Religions in this Kingdom and they were intended to defend the Nation against them and to keep them out particularly to keep out the Romish Religion which is the very worst of all Religions from prevailing among us and that is the very Design of the Act for the Tests which is intituled An Act to prevent Dangers that may happen from Popish Recusants My Lord If this Declaration should take effect what would be the End of it All Religions are let in let them be what they will Ranters Quakers and the like nay even the Roman Catholick Religion as they call it which was intended by these Acts of Parliament and by the Act of Uniformity and several other Acts to be kept out of this Nation as a Religion no way tolerable nor to be endured here If this Declaration take effect that Religion will stand upon the same Terms with the Protestant Religion Suspend those Laws and that Romish

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 ●…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 ●…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

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

Parliament is High Treason Mr. Sol. Gen. I carry it not so far Sir we have a Gracious Prince and my Lords the Bishops find it so by this Prosecution But what says that Case It is Printed in 3 Books in Noy 100. in Moor 375. and in Mr. Just. Cro. 371. says that Case The King may make Orders and Constitutions in Matters Ecclesiastical Mr. Iust. Powel But how will you apply that Case to this in hand Mr. Sollicitor Mr. Sol. Gen. I will apply it by and by Sir. I would first shew what it is there is a Convention of the greatest Men in the Kingdom Mr. Iust. Powel Indeed Mr. Sollicitor you shoot at Rovers Mr. Sol. Gen. There i●… the Lord Privy Seal the Archbishop of Canterbury and a great many others it is the greatest A●…embly we meet with in our Books and all of them are of this Opinion That the King may make Orders and Constitutions in Matters Ecclesiastical My Lord there is another Authority and that is from the Statute 1 Eliz. which erected the High Commission Court and that Statute was not Introductory of a New Law but Declaratory of the Old Law The King by his Proclamation declares his Sense to do such and such a thing the Court and all Persons there give their Judgment and Opinion upon that Statute That they looked upon it as the grossest thing and the soulest affront to the Prince for any Man to bring into Question that Power of the King in Matters Ecclesiastical 't is said to be a very High Crime Why then my Lord what is done in this Case Mr. Iust. Powel Mr. Sollicitor Pray when you are applying apply that other part of the Case too which says that it was a heinous Offence to raise a Rumor that the King did intend to grant a general Toleration and is there any Law since that has changed it Mr. Sollicitor Mr. Sol. Gen. In the main Judgment goes another way as for that part it was personal to the Prince that then was of whom they had Scandalously reported that he intended to do such a thing they look'd upon it as a Scandal to King Iames that it was a sowing Sedition and stirring up People against the Government and that will come up to our Case for as some Men do it on the right side others do it on the left and whoever he be that endeavours to bring a dislike of the King in the People that is moving Sedition against the Prince but that is personal to the Prince himself and does not go to his Successors Now my Lord I come to that which is very plain from the Case of De Libellis Famosis If any Person in any Paper have Slandered the Government you are not to Examine who is in the Right and who is in the Wrong whether what they said to be done by the Government be Legal or no but whether the party have done such an Act. If the King have a Power for still I keep to that to Issue forth Proclamations to his Subjects and to make Orders and Constitutions in matters Ecclesiastical if he do Issue forth his Proclamation and make an Order upon the matters within his Power and Prerogative and if any one would come and bring that Power in Question I say that is Sedition and you are not to Examine the Legality or Illegality of the Order or Proclamation and that I think is very plain upon that Case in the Fifth Report for it says If a Person does a thing that is Libellous you shall not Examine the Fact but the Consequence whether it tended to stir up Sedition against the Publick or to stir up Strife between Man and Man in the Case of private Persons as if a Man should say of a Judge He has taken a Bribe and I will prove it this is not to be sent in a Letter but they must take a regular way to Prosecute it according to Law. If it be so in the Case of an Inferior Magistrate what must it be in the Case of a King to come to the Kings Face and tell him as they do here that he has Acted Illegally doth certainly sufficiently prove the matter to be Libellous What do they say to King they say and admit that they have an aversness for the Declaration and they tell him from whence that aversness doth proceed and yet they insinuate that they had an inclination to Gratify the King and Embrace the Dissenters that were as averse to them as could be with due tenderness when it should be settled by Parliament and Convocation Pray what hath their Convocation to do in this matter L. Ch. Iust. Mr. Sollicitor General I will not interrupt you but pray come to the Business before us Shew us that this is in diminution of the Kings Prerogative or that the King ever had such a Prerogative Mr. Sol. Gen. I will my Lord I am observing what it is they say in this Petition They tell the King it is inconsistent with their Honor Prudence and Conscience to do what he would have them to do and if these things be not reflective upon the King and Government I know not what is this is not in a way of Judicature possibly it might have been allowable to Petition The King to put it into a course of Justice whereby it may be Tryed but alas there is no such thing in this matter It is not their desire to put it into any Method for Tryal and so it comes in the Case De Libellis Famosis for by this way they make themselves Judges which no Man by Law is permitted to do My Lords the Bishops have gone out of the way and all that they have offered does not come home to justify them and therefore I take it under Favour that we have made it a good Case for the King we have proved what they have done and whether this be Warrantable or not is the Question Gentlemen that you are to try The whole Case appears upon Record the Declaration and Petition are set forth and the Order of the King and Council When the Verdict is brought in they may move any thing what they please in arrest of Judgment They have had a great deal of Latitude and taken a great deal of Liberty But truly I apprehend not so very pertinently But I hope we have made a good Case of it for the King and that you Gentlemen will give us a Verdict Mr. Iust. Holloway Mr. Sollicitor there is one thing I would seign be satisfied in you say the Bishops have no Power to Petition the King. Mr. Soll. Gen. Not out of Parliament Sir. Mr. Iust. Holloway Pray give me leave Sir Then the King having made such a Declaration of a General Toleration and Liberty of Conscience and afterwards he comes and requires the Bishops to disperse this Declaration this they say out of a tenderness of Conscience they cannot do because they apprehend it contrary to Law and contrary to their