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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

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 dispe●…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 R●…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

are Sir Sam. Astrey There is the Clerk of the Records of the Tower Mr. Halstead will read it very well in French or English. Then Mr. Halstead was sworn to interpret the Records into English according to the best of his Skill and Knowledge but not reading very readily a true Copy of the Record in English follows out of the Rolls of Parliament in the 15th Year of King Richard the Second Numero Primo FRiday the Morrow of All Souls which was the first Day of this Parliament holden at Westminster in the fifteenth Year of the Reign of our Lord King Richard the Second after the Conquest the Reverend Father in God the Archbishop of York Primate and Chancellor of England by the King's Commandment being present in Parliament pronounced and declared very nobly and wisely the Cause of the Summons of this Parliament And said First That the King would that holy Church principally and afterwards the Lords Spiritual and Temporal and also the Cities and Burroughs should have and enjoy their Liberties and Franchises as well as they had them and enjoyed them in the Time of his Noble Progenitors Kings of England and also in his own Time. And afterwards said The Summons of this Parliament was principally for three Occasions The first Occasion was To ordain how the Peace and Quiet of the Land which have heretofore been greatly blemished and disturbed as well by Detraction and Maintenance as otherwise might be better holden and kept and the Laws better executed and the King's Commands better obeyed The second Occasion was To ordain●… and see how the Price of Wools which is beyond measure lessened and impaired might be better amended and inhaunced And also That in case the War should begin again at the End of the present Truce to wit at the Assumption of our Lady next coming to ordain and see how and whereby the said War may be maintained at the least Charge of the People And the third Occasion was touching the Statutes of Provisors To ordain and see how our Holy Father might have that which to him belongs and the King that which belongs to him and to his Crown according unto that Render unto Caesar the things that are Caesar ' s and unto God the things which are God's Then the other Record of Richard the Second was read as follows out of the Rolls of Parliament the fifteenth Year of King Richard the Second No 8 Be it remembred touching the Statute of Provisors That the Commons for the great Confidence which they have in the Person of our Lord the King and in his most excellent Knowledge and in the great Tenderness which he hath for his Crown and the Rights thereof and also in the noble and high Discretions of the Lords have assented in full Parliament that our said Lord the King by Advice and Assent of the said Lords may make such Sufferance touching the said Statute as shall seem to him reasonable and profitable until the next Parliament so as the said Statute be not repealed in no Article thereof And that all those who have any Benefices by force of the said Statute before this present Parliament and also That all those to whom any Aid Tranquility or Advantage is accrued by virtue of the said Statute of the Benefices of Holy Church of which they were heretofore in Possession as well by Presentation or Collation of our Lord the King as of the Ordinaries or Religious Persons whatsoever or by any other manner or way whatsoever may freely have and enjoy them and peaceably continue their Possession thereof without being ousted thereof or any ways challenged hindred molested disquieted or grieved hereafter by any Provisors or others against the Form and Effect of the Statute aforesaid by reason of the said Sufferance in any time to come And moreover That the said Commons may disagree at the next Parliament to this Sufferance and fully resort to the said Statute if it shall seem good to them to do it With Protestation That this Assent which is a Novelty and has not been done before this time be not drawn into Example or Consequence for Time to come And they prayed our Lord the King that the Protestation might be entred of Record in the Roll of the Parliament And the King granted and commanded to do it Mr. S. Levinz Now my Lord we will go on This was in Richard the Second's Time And a Power is given by the Commons to the King with the Assent of the Lords to dispense but only to the next Parliament with a Power reserved to the Commons and to disagree to it and retract that Consent of theirs the next Parliament Sir Geo. Treby The Statute of Provisors was and is a Penal Law and concerning Ecclesiastical Matters too viz. The Collating and Presenting to Archbishopricks Bishopricks Benefices and Dignities of the Church And in this Record now read the Parliament give the King a limited Power and for a short Time to dispense with that Statute But to obviate all Pretence of such a Power 's being inherent in the Crown as a Prerogative they declare 1. That it was a Novelty that is as much as to say That the King had no such Power before 2. That it should not be drawn into Example that is to say That he should have no such Power for the future Mr. S. Levinz Now we will go on to the Records mentioned in the Petition those in the last King's Time in 1662 and 1672 and that in this King's Time in 1685. Where is the Journal of the House of Lords Mr. Walker sworn L. C. I. Is that the Book of the House of Lords Mr. Walker It is the Journal of the House of Lords L. C. I. Is it kept by you Mr. Walker Yes my Lord. L. C. I. Where is it kept Mr. Walker In the usual place here in Westminster Mr. Soll. Gen. What is that Mr. S. Levinz It is the Journal of the House of Lords But my Lord there is one thing that is mentioned in the last Record that is read which is worth your Lordship's and the Jury's Observation That it is declared a Novelty and a Protestation that it should not be drawn into Precedent for the future L. C. I. That has been observed Brother Let us hear your Record read Clerk read Die Mercurii 18 o die Februarii 1662. His Majesty was present this Day sitting in the Regal Crown and Robes the Peers being likewise in their Robes The King gave Order to the Gentleman Usher of the Black Rod to signifie to the House of Commons his Pleasure that they presently come up and attend His Majesty with their Speaker who being present His Majesty made this Speech following My Lords and Gentlemen I Am very glad to meet you here again having thought the Time long since we parted and often wished you had been together to help me in some Occasions which have fallen out I need not repeat them unto you you have all had

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

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 M●… 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

have it not ready 't is not telling the Court of it without shewing of it that will do and it may be a man that is taken up and brought hither in Custody cannot have it ready to shew but yet then by this Rule a man shall lose the benefit of his Plea by being compelled to answer immediately But they say the Court will do right I suppose they will and my Lords the Bishops in this case I believe do not distrust but that the Court will do right but I never thought the Law was brought to that pass that such things as these were left wholly in the discretion of the Court certainly Imparlances time to plead and just Preparations for a man's defence are things that the Law has setled and not left in the discretion of the Court and truly to me it seems all one utterly to take away a man's Defence as to hinder him of the means to prepare for it My Lord here is an Information before you against these Noble Lords it is a matter of great moment and tho' I hope in God there is no great cause for it yet however since such Persons are concerned and 't is a matter of such great weight I hope you will give us such an Imparlance as if we had this day appeared upon the ordinary Process which is an Imparlance until the next Term. L. Ch. Iust. There is a difference between this and that other Case if my Lords the Bishops had appeared upon the Summons they would have had an Imparlance of Course but when they are brought up hither in Custody that mightily alters the Case but that we may not be too hasty in a thing of this nature let the Clerk of the Court be consulted with that we may know what the true Course is Mr. Att. Gen. My Lord we pray Sir Samuel Astry may be examined a little about it Mr. Iust. Allybone Mr. Pollixfen I believe the Court is unanimous in their Resolutions of making nothing new in this Case but pray give me leave to tell you this is not the first time that this Question has come to be agitated in this Court since I came hither Now from whence can the Court take their measures to be rightly informed what the Practice of the Court is but from the Information of the Officers of the Court who by their constant Imployment are most capable of knowing what the Course is Now if you come to offer any thing that may be matter of doubt to the Court concerning the Practice of the Court you having known that this thing was controverted before for so it has been should have provided your self with something that must be a reasonable motive for us to doubt for this has not been only once but often moved and our Officers have been consulted with concerning this Question which took its rise from such Objections as you have made now Now for you to tell us That you desire that we would look into Precedents is methinks pretty odd if you had brought us any Precedents it had been something And withall I must tell you that you must not reckon the favour of the Court in any particular Case to be the standing Rules for the Practice and Course of the Court but instead of bringing Precedents you only offer your own Thoughts and those would create no doubt in us but what has been before satisfied upon Examination of the Officers of the Court. Mr. Pollixfen Pray Sir will you give me leave to answer you one word Mr. Iust. Powell Truly I have not observed that ever this Point was started so as to beget a Question since I came hither but only in the Cases of the Quo Warranto's and truly in that Case I thought it hard they should be denied time to plead especially the Consequence being so fatal L. Ch. Iust. Yes yes Brother it has been several times Mr. Iust. Powell Truly my Lord I have not observed it nor do I remember it Sir Rob. Sawyer My Lord I have always taken the distinction as to these Matters to be this Mr. Iust. Powell But my Lord if the ancient Course of the Court hath been to grant an Imparlance and a Copy of the Information before they plead I see no reason why my Lords the Bishops should not have the benefit of that ancient Course for if a man that is sued at Law for a Two-penny Trespass shall have that advantage as to receive a Declaration and have time to plead what he can to it why should not my Lords the Bishops in a matter of so great weight have the same advantage too But indeed if the Course of the Court had been anciently otherwise I can say nothing to it for the Course of the Court is certainly the Law of the Court. Mr. Iust. Allybone Brother Powell you say well if they did produce any one Precedent to give us occasion to doubt in the matter Sir Rob. Sawyer Pray good my Lord will you give me leave Mr. Attorn Gen. Why Sir Robert Sawyer will you never have done Mr. Soll. Gen. No they are all so zealous and eager in this Case that they wont permit either the Court or any body else to speak a word but themselves Mr. Serj. Pemberton Good Mr. Sollicitor give us leave to answer the Objection that the Court hath made to us we would satisfie your Lordship where the Distinction really lieth where there has been an Opportunity for the party to come in as by Summons or Subpaena or the like and he has slipped that opportunity and so the King is delayed in that Case they always used to put the Party upon Pleading presently when he was taken up upon a Capias and brought in Custody but when there was never any Subpoena taken out as the Case is here so that the Party never had an opportunity to come in and render himself and appear to Answer it according to the due Course of Law an Imparlance was never yet denyed nor time to Plead and that is the Case here Sir Robert Sawyer My Lord Mr. Serjant has given you the true distinction where Process has gone out to summon any one to appear to an Information and he hath failed to appear according to the Summons and the Prosecutor for the King takes out a Capias if he be brought in upon that Capias the Ancient Course has been so as they say But for that other matter where a Man comes in upon a Commitment at the first Instance and an Information is put in just as this is the same Morning and not before if they can shew any one Precedent of this kind Fifteen years ago I would be contented to yield that they are in the right but I am sure they are not able to do it In Sir Mathew Hales's time when this was moved it was refused and he was clear of another Opinion Mr. Attor Gen. I hope now my Lord we shall be heard a little for the King and I

may be Read. Mr. Att. Gen. We have given sufficient Evidence sure to have it Read therefore we desire it may be Read. Mr. Serj. Levinz My Lord before this Paper be Read we hope you will let us be heard to it we think that what they desire to have this Paper Read ought not to be for what is all the proof that they have given of this Paper they have a proof by Comparison of Hands which in a Criminal Case ought not to be received and besides my Lord what is that Comparison of Hands that they have offered Some persons come here and say They cannot tell whether it be their Hands they believe it may or it may not for ought they know How shall we Convict any Man upon such a Testimony as this can we have our Remedy against him for Perjury for saying He believes it to be our Hand therefore here is not any Evidence to Charge us For first It is only a Comparison of Hands And secondly That Comparison is proved in such an uncertain manner Some of them tell you They do not know what to believe another tells you I believe 't is rather such a Lord's Hand then the others are such a Lord's Hands I believe 't is rather his Hand than that above it or that below it what sort of proof is all this Therefore we pray it may not be Read till they prove it better Mr. Serj. Pamberton Pray my Lord spare me a word or two in this matter for Evidence sake there is a great deal of reason we should take Exceptions to the Evidence that has been given for truly I think I never heard such a sort of Evidence given before It is a Case of as great Concernment as ever was in Westminster ●…all and for them to come to prove Hands only by those that saw Letters but never saw the persons Write this I hope will not amount to so much as a Comparison of Hands Your Lordship knows that in every petty Cause where it depends upon the Comparison of Hands they use to bring some of the Parties Hand writing which may be Sworn to to be the Parties own Hand and then it is to be compared in Court with what is endeavoured to be proved and upon comparing them together in Court the Jury may look upon it and see if it be right and never was there any such a thing as this admitted in any poor petty Cause that is but of the value of Forty Shillings And therefore as to this Evidence First We say Comparison of Hands ought not to be given at all in the Cases of Criminals And I believe it was never heard of that it should In the next place if it be admitted to be Evidence yet it is not such an Evidence as that by Comparison of Hands the Jury can take notice of it for in such manner of proofs by Comparison of Hands the usage is That the Witness is first asked concerning the Writing he produces Did you see this Writ by the Defendant whose Hand they would prove If he answers yes I did then should the Jury upon Comparison of what the Witness Swears to with the Paper that is to be proved judge whether those Hands be so like as to induce them to believe that the sames person Writ both and not that the Witness should say I had a Letter from such a person and this is like the Hand of that Letter therefore I believe it to be his Hand My Lord I hope this shall never be admitted for Evidence in this Court. L. C. I. I do take it that the Witness himself is Judge of the Comparison for if he does know the Parties Hand and a Paper be offered him to prove the Parties Hand he is to compare it in his own mind Mr. Serj. Pemberton It never was admitted to be so that I know of my Lord or ever Read of Mr. Sol. Gen. You may remember several Cases about that particularly Sidney's Case Mr. Pollixfen Pray my Lord hear me a little as to that it is a Point of very great moment whether in the Case of a Misdemeanour either in an Indictment or Information it be good Evidence to offer Comparison of Hands and that this Court did adjudge quite contrary upon an Indictment of Forgery against my Lady Carr appears in Syderfin's Reports they went to prove her Letters Written by her to Cox the Court rejected it and gave their judgement here That it was no Evidence and that for this Reason Because of the evil consequences of it For said they It is an easie matter for any Man's Hand to be Counterfeited that they sure will agree for frequent daily experience shews how easily that may be done is it not easie then to cut any Man down in the World by proving it is like his Hand and proving that likenss by comparing it with something that he hath formerly seen this strikes mighty deep the honestest Man in the World and the most Innocent may be destroyed and yet no fault to be found in the Jury or in the Judges if the Law were so it would be an unreasonable Law. Next my Lord for the Case of Sidney that was a Case of Treason Now in the Case of Treason there is always other Evidence brought and this Evidence comes in but as a Collateral Evidence to strengthen the other but in this Case it is the single Evidence for ought that appears for there is nothing more for ought I can see in the Case but whether this were their Hands and proved only by what another believes Now shall any be condemned by anothers belief without proof surely my Lord that was never Evidence yet to Convict any one so that their proof failes in both Points For first It ought to be considered whether Comparison of Hands be Evidence in a Case of Misdemeanour And next if it be Evidence whether you will take it that the belief of a Man that brings nothing to compare with it or never saw the Party Write but has received Letters and says This is like it and therefore he believes it to be his Hand be good Evidence as a Comparison of Hands Mr. Serj. Pemberton My Lord they are pleased to mention Mr. Sol. Gen. Mr. Serj. you have been heard already and you are not to reply upon us or if you would we must be heard first Mr. Serj. Pemberton I would only speak to that Case of Sidney my Lord that Case differs from this toto Caelo the Writing was found in his possession in his Study there was the proof that nailed him Mr. Sol. Gen. You shall see how we 'll apply it by and by Mr. Att. Gen. Pray my Lord favour me a word in this matter that there is stronger and weaker Evidence no Man doubts but that which these Gentlemen say that in this Case there is no Evidence must needs be a mistake if they mean that it is not so strong an Evidence as is possible to be given