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cause_n	king_n	parliament_n	petition_n	2,565	5	9.5981	5	true

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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

aforesaid William Archbishop of Canterbury of Lambeth in the County of Surrey William Bishop of St. Asaph of St. Asaph in the County of Flynt Francis Bishop of Ely of the Parish of St. Andrew Holbourn in the County of Middlesex Iohn Bishop of Chichester of Chichester in the County of Sussex Thomas Bishop of Bath and Wells of the City of Wells in the County of Somerset Thomas Bishop of Peterburgh of the Parish of St. Andrew Holbourn in the County of Middlesex and Ionathan Bishop of Bristol of the City of Bristol did consult and conspire among themselves to diminish the Regal Authority Royal Prerogative Power and Government of our said Lord the King in the premises and to infringe and clude the said Order and in prosecution and execution of the Conspiracy aforesaid They the said William Archbishop of Canterbury William Bishop of St. Asaph Francis Bishop of Ely Iohn Bishop of Chichester Thomas Bishop of Bath and Wells Thomas Bishop of Peterburgh and Ionathan Bishop of Bristol on the said eighteenth day of May in the fourth year of the Reign of our said Lord the King aforesaid with Force and Arms c. at Westminster aforesaid in the County of Middlesex aforesaid falsly unlawfully maliciously seditiously and scandalously did frame compose and write and caused to be framed composed and written a certain false feigned malicious pernicious and seditious Libel in writing concerning our said Lord the King and his Royal Declaration and Order aforesaid under pretence of a Petition and the same false feigned malicious pernicious and seditious Libel by them the aforesaid William Archbishop of Canterbury William Bishop of St. Asaph Franois Bishop of Ely Iohn Bishop of Chichester Thomas Bishop of Bath and Wells Thomas Bishop of Peterburgh and Ionathan Bishop of Bristol with their own hands respectively being subscribed on the day and year and in the place last mentioned in the presence of our said Lord the King with Force and Arms c. did publish and cause to be published in which said false feigned malicious pernicious and seditious Libel is contained The humble Petition c. prout before in the Petition to these words reasonable construction in manifest contempt of our said Lord the King and of the Laws of this Kingdom to the evil example of all others in the like case offending and against the Peace of our said Lord the King his Crown Dignity c. Whereupon the said Attorney-General of our said Lord the King on behalf of our said Lord the King prays the Advice of the Court here in the premises and due Process of Law to be made out against the aforesaid William Archbishop of Canterbury William Bishop of St. Asaph Francis Bishop of Ely Iohn Bishop of Chichester Thomas Bishop of Bath and Wells Thomas Bishop of Peterburgh and Ionathan Bishop of Bristol in this behalf to answer our said Lord the King in and concerning the premises c. T. Powys W. Williams To this Information the Defendents have pleaded Not Guilty and for their Trial have put themselves upon their Country and his Majesty's Attorney-General likewise which Country you are Your Charge is to enquire whether the Defendents or any of them are guilty of the matter contained in this Information that hath been read unto you or Not Guilty If you find them or any of them Guilty you are to say so and if you find them or any of them Not Guilty you are to say so and hear your Evidence Cryer make Proclamation Cryer O yes If any one will give Evidence on behalf of our Sovereign Lord the King against the Defendents of the matters whereof they are impeached let them come forth and they shall be heard Mr. Wright May it please your Lordship and you Gentlemen of the Jury this is an Information exhibited by his Majesty's Attorney-General against the most Reverend my Lord Archbishop of Canterbury and Six other Honourable and Noble Bishops in the Information mentioned And the Information sets forth That the King out of his Clemency and benign intention towards his Subjects of this Kingdom did put forth his Royal Declaration bearing date the fourth day of April in the third year of his Reign entituled His Majesty's Gracious Declaration to all his Loving Subjects for Liberty of Conscience and that afterwards the twenty-seventh of April in the fourth year of his Reign he published another Declaration both which have been read to you and for the further Manifestation and Notification of his Grace in the said Declaration bearing date the twenty-seventh of April last his Majesty did order That the said Declaration should be read on the twentieth and twenty-seventh of the same month in the Cities of London and Westminster and ten miles about and on the third and tenth of Iune throughout the whole Kingdom and that the Right Reverend the Bishops should send the said Declaration to be distributed throughout their respective Diocesses to be read accordingly But that the said Archbishop and Bishops the eighteenth of May in the said fourth year of his said Majesty's Reign having conspired and consulted among themselves to diminish the King's Power and Prerogative did falsly unlawfully maliciously and scandalously make compose and write a false scandalous malicious and seditious Libel under pretence of a Petition which Libel they did publish in the presence of the said King the Contents of which Libel you have likewise heard read To this they have pleaded Not Guilty You Gentlemen are Judges of the Fact if we prove this Fact you are to find them Guilty Mr. At. Gen. May it please your Lordship and you Gentlemen of the Jury your have heard this Information read by the Clerk and it has been likewise opened to you at the Barr but before we go to our Evidence perhaps it may not be amiss for us that are of Council for the King now in the beginning of this Cause to settle the Question right before you as well to tell you what my Lords the Bishops are not prosecuted for as what they are First I am to tell you and I believe you cannot your selves but observe that my Lords are not prosecuted as Bishops not much less are they Prosecuted for any point or matter of Religion but they are Prosecuted as Subjects of this Kingdom and only for a temporal Crime as those that have injured and affronted the King to his very Face for it is 〈◊〉 to be done in his own Presence In the next place they are not Prosecuted for any No●…easance or not doing or omitting to do any thing but as they are Actors for ce●…ring of his Majesty and his Government and for giving their Opinion in Matters wholly relating to Law and Government and I cannot omit here to take notice that there is not any one thing which the Law is more iealous of or does more carefully provide for the prevention and punishment of than all accusations and arra●…ents of the Government no Man is allowed to

Religion that was intended to be prohibited and so much Care was taken and so many Statutes made to prohibit it will come in and all this Care and all those Statutes go for nothing This one Declaration sets them all out of doors and then that Religion stands upon equal Terms with the established Religion My Lord We say this farther that my Lords the Bishops have the Care of the Church by their very Function and Offices and are bound to take care to keep out all those false Religions that are prohibited and designed to be kept out by the Law. My Lords the Bishops finding this Declaration founded upon a meer pretended Power that had been continually opposed and rejected in Parliament could not comply with the King's Command to read it My Lord Such a Power to dispense with or suspend the Laws of a Nation cannot with any shadow of Reason be It is not long since that such a Power was ever pretended to by any but such as have the Legislative too for it is plain that such a Power must at least be equal to the Power that made the Laws To dispense with a Law must argue a Power greater or at least as great as that which made the Law. My Lord It has been often said in our Books That where the King's Subjects are concerned in Interest the King cannot suspend or dispense with a particular Law. But my Lord how can the King's Subjects be more concern'd in Interest than when their Religion lies at stake It has been resolved upon the Statute of Symony that where the Statute has disabled the Party to take there the King could not enable him against that Act of Parliament And shall it be said that by his Dispensation he shall enable one to hold an Office who is disabled by the Test-Act My Lord We say The Course of our Law allows no such Dispensation as this Declaration pretends to And he that is but meanly read in our Law must needs understand this That the Kings of England cannot suspend our Laws for that would be to set aside the Law of the Kingdom And then we might be clearly without any Laws if the King should please to suspend them 'T is true we say the last King Charles was prevailed upon by Mis-information to make a Dispensation somewhat of the nature of this though not so full an one for that dispensed only with some few Ceremonies and things of that nature But the House of Commons this taking Air in 1662. represent this to the King by a Petition And what is it that they do represent That he by his Dispensation has undertaken to do that which nothing but an Act of Parliament can do that is the dispensing with Penal Laws which is only to be done by Act of Parliament And thereupon it was thought fit upon the King's Account to bring in an Act for it in some Cases My Lord The King did then in his Speech to the Parliament which we use as a great Argument against this Dispensing Power say this That considering the Circumstances of the Nation he could wish with all his Heart that he had such a Power to dispense with some Laws in some Particulars And thereupon there was a Bill in order to an Act of Parliament brought in giving the King a Power to dispense but my Lord with a great many Qualifications Which shews plainly that it was taken by the Parliament that he had no Power to dispense with the Laws of himself My Lord Afterwards in 1672. the King was prevailed upon again to grant another Dispensation somewhat larger L. C. I. Brother Pemberton I would not interrupt you but we have heard of this over and over again already Mr. S. Pemberton Then since your Lordship is satisfied of these things as I presume you are else I should have gone on I have done my Lord. Mr. S. Levinz But my Lord we shall go a little higher than that and shew that it has been taken all along as the ancient Law of England that such Dispensations ought to be by the King and the Parliament and not by the King alone Mr. Soll. Gen. My Lord if you will admit every one of the Council to Speech it before they give their Evidence when shall we come to an End of this Cause We shall be here till Midnight L. C. I. They have no Mind to have an End of the Cause for they have kept it three Hours longer than they need to have done Mr. S. Pemberton My Lord This Case does require a great deal of Patience L. C. I. It does so Brother and the Court has had a greas deal of Patience But we must not sit here only to hear Speeches Mr. Att. Gen. Now after all their Speeches of two Hours long let them read any thing if they have it Sir Rob. Sawyer We will begin with the Record of Richard the Second Call William Fisher. William Fisher Clerk to Mr. Ince sworn L. C. I. What do you ask him Sir Rob. Sawyer Shew him that Copy of the Record The Record was then shewn him L. C. I. Where had you those Sir Mr. Fisher. Among the Records in the Tower. L. C. I. Are they true Copies Mr. Fisher. Yes my Lord. L. C. I. Did you examine them by the Record Mr. Fisher. Yes my Lord. Sir Rob. Sawyer Then hand them in put them in Clerk reads Ex Rotulo Parliamenti de Anno Regni Regis Richardi Secundi XV. No 1. My Lord It is written in French and I shall make but a bad Reading of it Sir Sam. Astrey Where is the Man that examin'd it Do you understand French Mr. Fisher. Yes my Lord. Sir Rob. Sawyer The Record is in another Hand than this they may easily read it Mr. Soll. Gen. Who copy'd this Paper Mr. Fisher. I did examine it Mr. Soll. Gen. What did you examine it with Mr. Fisher. I look'd upon that Copy and Mr. Halstead read the Record L. C. I. Young Man read out Fisher reads Vendredy Lande maine del Almes qu'estoit le primier jour Mr. Soll. Gen. Pray tell us what it is you would have read Mr. S. Levinz I 'll tell you what it is Mr. Sollicitor 'T is the Dispensation with the Statute of Provisors And the Act of Parliament does give the King a Power to dispense till such a time Mr. Soll. Gen. Don't you think the King's Prerogative is affirmed by many Acts of Parliament Mr. S. Levinz If the King could dispense without an Act of Parliament what need was there for the making of it Mr. Soll. Gen. Mr. Serjeant We are not to argue with you about that yet L. C. I. Read it in English for the Jury to understand it Mr. Fisher. My Lord I cannot undertake to read it so readily in English. Mr. I. Powel Why don't you produce the Records that are mentioned in the Petition those in King Charles the Second's time Mr. S. Levinz We will produce our Records in Order of Time as they

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

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

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

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

my Lord the Bishops are not bound to Plead instantly so that 't is not a Question Whether they ought to Answer or not to Answer but whether they ought to Answer immediately and what do they say more They would have an Imparlance and time to consult with their Councel what they shall Plead which is all but one and the same thing and what is the reason they give for this They induce it thus These Noble Persons are Peers of the Realm and so ought not to be compelled to Plead immediately this if I mistake not is the sum of their Plea. Now pray my Lord what sort of Plea is this It is not a Plea to the Jurisdiction of the Court tho' it do in a sort decline the Justice of the Court Is it a Plea in Abatement No it is not for it is only to gain time and do they now offer any thing more for themselves than what was said by their Council before Only That we are Peers of the Realm and that such is the Priviledge of Peers that they ought to have an Imparlance and time to Plead and that they ought not to answer presently My Lord this Matter hath been long agitated in the Court already your Lordship and the Court have given your Judgments and we know your Lordship and the Court will not admit of Tricks to delay the Kings Causes we all know the Term is a short Term and what I said in the beginning upon this matter I say again it is the Interest and for the Honour of my Lords the Bishops if they understand their own Interest and value their Honour to have this Cause tryed as soon as may be but this trifling and tricking is only for delay For what issue can be taken upon this Plea Certainly none And if we should Demurr what will be the end of that But only to get time to slip over the Term. If there were any thing worth the considering in this Plea and that had not been already debated and setled then it might concern us to give some Answer to it but we have spent three hours by my Watch in the Dispute and the Matter having been over-ruled already it is time to have an end of it sure the Court will never be so treated by these Persons that are of Councel for my Lords the Bishops for it cannot be thought that my Lords the Bishops do it of themselves and whether the Court will be so served we submit to your Lordship Certainly you will not receive such a Plea as this especially it being in Paper you will never countenance such a Practice so far as to give these Lords time to trifle with the Court if any such thing as a Plea be tender'd to the Court it ought to be in Parchment and if they would have an Imparlance there ought to have been an entry of a Petit Licentiam inter loquendi upon the Roll but not such a Plea as this for this in effect is no more then desiring an Imparlance which if it be granted of course upon such a Prayer entred upon the Roll you take it of course but if it be not of course you cannot come in by way of Plea it must be by suggestion upon the Roll and a Conceditur entred if this be admitted as a Precedent every Man hereafter that comes in upon an Information will take advantage of it and plead such a Plea as this and if you grant an Imparlance in this Case upon this Plea you must grant an Imparlance in every Case certainly the Law is not to be altered the Methods of Proceedings ought to be the same in every Case And I hope you will not make a particular Rule in the Case of my Lords the Bishops without a special Reason for it Mr. Serj. Pemb. We put in this Plea my Lord and are ready to abide by it and we say that according to the course of the Court it ought to be received Mr. Att. Gen. No but good Mr. Serjeant 't is in the discretion of the Court whether they will receive it or not for the matter has been in debate already and has receiv'd a determination the Court has over-ruled them in this very Point already and there is no more in this Plea than was in the Argument before and therefore it ought to be rejected as a frivolous Plea. Mr. Soll. Gen. Here is a Plea offered in Writing and in Paper the Court sees what it is and I hope you will give no countenance to it Mr. Pollixfen I do hope my Lord you will not judge this as a frivolous Plea I think our Case is such that you will not do that if you think fit you may over-rule it but I hope you will not refuse it Mr. Soll. Gen. The Court will certainly reject a frivolous Plea and they may do it Mr. Pollixfen But Mr. Solliciter I hope the Court will consider of it whether it be a frivolous Plea or not it is true there has been a Debate about the course of the Court and there has been an Examination of the Clerk of the Office and the Court has gone upon his Certificate but yet still perhaps it may remain in doubt and it being a Question of such a consequence as this it may very well deserve the Court's Consideration there never was a Judicial Settlement of it that I know of yet nor do I know any way of having it satisfactorily setled but by the Judgment of the Court entred upon Record here we offer a Plea that contains the matter in debate and this Plea will appear upon Record and if upon consideration of the Plea your Lordship shall think fit to over-rule it and be of Opinion against the Plea then will you by your Resolution in a Judicial way settle the Question that has hitherto been in Controversy L. C. I. Mr. Pollixfen I would ask you whether the Council have dealt ingeniously with the Court or no in this matter after four hours debate and the Opinion of the Court delivered to come and sum up all the Arguments in such a Plea as this and so put us upon debating it over again Mr. Pollixfen My Lord certainly this has been done before without Offence after we had moved for a thing which was denied upon Motion it is no such great dis-respect to the Court with submission to put the same Matter into a Plea for the Judicial Opinion of the Court. Sir Ro. Sawyer That without all Question has been done a great many times Mr. Sol. Gen. How many times have you been accused of playing Tricks Sir Robert Sawyer Sir Rob. Sawyer Not so many as you Mr. Sollicitor Mr. Sol. Gen. I don't ask it as if I questioned it for I assure you I don't doubt it of your part at all L. C. I. Pray Gentlemen don't fall out with one another at the Bar we have had time enough spent already Mr. Pollixfen Truly My Lord I would not trick with the Court in any

your Lordship to reject this Plea. Sir Rob. Sawyer My Lord we are in your Judgment whether you will receive this Plea or not L. C. I. You shall have my Judgment presently but my Brothers are to speak first Mr. I. Allybone Mr. Pollixfen makes it a Question whether this Plea may be reiected or not or whether it ought to be received and the Court give their Judgment upon it Mr. Iust. Powell Truly I do not know whether the Court can reject this as 〈◊〉 frivolous Plea. L. C. I. Surely we may and frequently do Mr. Att. Gen. You do it every day it 's a frequent Motion if a frivolous Plea be put in before it be entred upon Record as a Plea the Court may refuse it if they see cause Mr. I. Allybone Truly if it may be this appears to me a very frivolous Plea. Mr. Iust. Powell I do not know how the Court can reject any Plea that the party will put in if he will stand by it as they say they will here and I cannot think this a frivolous Plea it concerning the priviledge of Peers and Lords of Parliament Mr. I. Allybone Brother Powell I would be as tender of the Priviledges of Parliament and speak with as much respect of the Priviledges of the Peerage as any body else but for the matter of the Plea truly it appears to me that the Peers are named in it only for fashion safe and it is frivolous Mr. Iust. Powell The matter of the Plea except only their being said to be Peers and Lords of Parliament was spoke to before but it was only obiter and by way of motion but now it may come before us for our Judicial Determination Mr. I. Allybone Pray let the Plea be read again Which was done Mr. Iust. Allybone This Plea is no more but that which has been denied already upon solemn debate and if it be in the power of the Court to reject any Plea surely we ought to reject this Indeed I know not what power we have to reject a Plea but if we have power this ought to be rejected Mr. Iust. Powell I declare my Opinion I am for receiving the Plea and considering of it Mr. Iust. Holloway I think as this case is this Plea ought not to be received but rejected because 't is no more than what has been denied already I am not ashamed to say That I should be very glad and ready to do all things that are consistent with my Duty to shew respects to my Lords the Bishops some of whom are my particular Friends but I am upon my Oath and must go according to the course of Law. L. C. I. We have asked and informed our selves from the Bar whether we may or can reject a Plea and truly what they have said hath satisfied me that we may if the Plea be frivolous and this being a Plea that contains no more than what has been over-ruled already after hearing what could be said on both sides I think the Court is not bound to receive the Plea but may reject it and my Lords the Bishops must plead over Mr. Att. Gen. We pray they may plead in chief Clerk. My Lord Archbishop of Canterbury is your Grace guilty of the matter charged upon you in this Information or not guilty A. B. C. Not guilty Clerk. My Lord Bishop of St. Asaph is your Lordship guilty of the matter charged upon you in this Information or not guilty Bish. of St. Asaph Not guilty Clerk. My Lord Bishop of Ely is your Lordship guilty of the matter charged upon you in this Information or not guilty Bish. of Ely. Not guilty Clerk. My Lord Bishop of Chichester is your Lordship guilty of the matter charged upon you in this Information or not guilty Bish. of Chichest Not guilty Clerk. My Lord Bishop of Bath and Wells is your Lordship guilty of the matter charged upon you in this Information or not guilty Bish. of Bath Wells Not guilty Clerk. My Lord Bishop of Peterborough is your Lordship guilty of the matter charged upon you in this Information or not guilty Bish. of Peterborough Not guilty Clerk. My Lord Bishop of Bristol is your Lordship guilty of the matter charged upon you in this Information or not guilty Bish. of Bristol Not guilty Mr. Att. Gen. My Lord I pray the Clerk may joyn Issue on the behalf of the King that so we may come to Tryal and we would have these Gentlemen take notice that we intend to try this Cause on this day fortnight and we pray liberty of the Court that we may try it at Bar. L. C. I. Are you not too hasty in that Motion Mr. Attorney Mr. Att. Gen. My Lord we should indeed make it the Motion of another day but we do now tell them this exabundanti because my Lords the Bishops are now here and will I suppose take notice that we do intend to move it another day Mr. Soll. Gen. We now give them notice that we intend to move Sir Rob. Sawyer For that you need not trouble your selves we are very desirous it should be tryed at Bar and that as soon as you please Mr. Att. Gen. Well then you take notice it will be tryed this day fortnight L. C. I. Well what shall we do with my Lords the Bishops Mr. Att. Gen. They are baylable no question of it my Lord if they please L. C. I. Then my Lords we are ready to bail you if you please Sir Rob. Sawyer We desire your Lordship would be pleased to take their own Recognizance L. C. I. What say you Mr. Attorney I think that may do well enough Mr. Att. Gen. My Lord with all my heart we will do it L. C. I. In what Penalty shall we take it Mr. Att. Gen. A 1000. I think my Lord his Grace and 500 l. apiece the rest Sir Rob. Sawyer What necessity is there for so much Mr. Att. Gen. Look you Sir Robert Sawyer to shew you that we do insist upon nothing that shall look like hardship what my Lords have been pleased to offer concerning taking their own Recognizance we agree to and what sums the Court pleases Mr. Soll. Gen. It is all one to us we leave it wholly to the Court. Sir Rob. Sawyer Only I have one thing more to beg of your Lordship on the behalf of my Lords the Bishops that you will please to order that in the Return of the Jury there may be forty eight returned Mr. Att. Gen. I tell you what we will do Sir Samuel Astry shall have the Freeholders Book if you please and shall return twenty four Sir Rob. Sawyer Eight and forty has been always the course when the Jury is returned by Sir Samuel Astry Mr. Soll. Gen. My Lord I pray the Officer may return the Jury according as is usual in Cases of this nature Mr. Att. Gen. You do admit of a Tryal at Bar Gentlemen Sir Rob. Sawyer Yes and try it when you will. L. C. I. They

say it shall be this day fortnight and let there be a Jury according to the usual course Sir Rob. Sawyer We pray it may be in the presence of the Attorneys or Sollicitors on both sides L. C. I. What is the usual co●…se Sir Samuel Astry Do you use to return twenty four or forty eight and then strike out twelve a piece which I perceive they desire for the Defendants Sir Sam. Astry My Lord the course is both ways and then it may be as your Lordship and the Court will please to order it L. C. I. Then take forty eight that is the fairest Mr. Att. Gen. We agree to it we desire nothing but a fair Jury Sir Rob. Sawyer Nor we neither try it when you will. L. C. I. Take a Recognizance of his Grace my Lord of Canterbury in 200 l. and the rest of my Lords in 100 l. a piece Mr. Att. Gen. What your Lordship pleases for that we submit to it Clerk. My Lord of Canterbury your Grace acknowledges to owe unto our Soveraign Lord the King the sum of 200 l. upon condition that your Grace shall appear in this Court on this day fortnight and so from day to day till you shall be discharged by the Court and not to depart without leave of the Court. Is your Grace contented A. B. C. I do acknowledge it Clerk. My Lord Bishop of St. Asaph you acknowledge to owe unto our Soveraign Lord the King the sum of 100 l. upon condition that your Lordship shall appear in this Court on this day fortnight and so from day to day until you shall be discharged by the Court and not to depart without leave of the Court. Is your Lordship contented Bish. of St. Asaph I do acknowledge it The like Recognizances were taken of all the rest of the Bishops and then the Court arose De Termino Sanctae Trinitatis Anno Regni Jacobi Secandi Regis Quarto In Banco Regis Die Veneris vicesimo nono die Junii 1688. in eod ' Term. Being the Feast of St. PETER and St. PAUL Dominus Rex versus Archiep. Cantuar. al. Sir Robert Wright Lord Chief Justice Mr. Justice Holloway Mr. Justice Powell Mr. Justice Allybone Judges Clerk. CRyer make Proclamation thrice Cryer Oyes Oyes Oyes Our Sovereign Lord the King streightly charges and commands every one to keep silence upon pain of Imprisonment Cl. of the Cr. Call the Defendents Cryer William Lord Archbishop of Canterbury Archbish. Here. Cryer William Lord Bishop of St. Asaph Bish. St. Asaph Here. And so the rest of the Bishops were called and answered severally Clerk. Gardez votres Challenges Swear Sir Roger Langley Cryer Take the Book Sir Roger. You shall well and truly try this Issue between our Sovereign Lord the King and William Lord Archbishop of Canterbury and others according to your Evidence So help you God. The same Oath was administred to all the Jury whose Names follow viz. Sir Roger Langley Barr. Sir William Hill Knt. Roger Iennings Esq Thomas Harriot Esq Ieoffery Nightingale Esq William Withers Esq William Avery Esq Thomas Austin Esq Nicholas Grice Esq Michael Arnold Esq Thomas Done Esq Richard Shoreditch Esq Clerk. You Gentlemen of the Jury who are sworn hearken to the Record Sir Thomas Powis Knight His Majesty's Attorney-General has exhibited an Information which does set forth as followeth ff MEmorandum That Sir Thomas Powys Knt. Attorney-General of our Lord the King who for our said Lord the King in this behalf prosecutes came here in his own person into the Court of our said Lord the King before the King himself at Westminster on Friday next after the morrow of the Holy Trinity in this Term and on the behalf of our said Lord the King giveth the Court here to understand and be informed That our said Lord the King out of his signal Clemency and gracious intention towards his Subjects of his Kingdom of England by his Royal Prerogative on the fourth day of April in the third year of the Reign of our said Lord the King at Westminster in the Country of Middlesex did publish his Royal Declaration entituled His Majesty's Gracious Declaration to all his Loving Subjects for Liberty of Conscience bearing date the same day and year sealed with the Great Seal of England in which Declaration is contained JAMES R. pro●…t in the first Declaration before recited And the said Attorney-General of our said Lord the King on behalf of our said Lord the King further giveth the Court here to understand and be informed That afterwards to wit on the twenty-seventh day of April in the fourth year of the Reign of our said Lord the King at Westminster aforesaid in the County of Middlesex aforesaid our-said Lord the King out of his like Clemency and gracious intention towards his Subjects of his Kingdom of England by his Royal Prerogative did publish his other Royal Declaration entituled His Majesty's Gracious Declaration bearing date the same day and year last mentioned sealed with his Great Seal of England in which Declaration is contained JAMES R. Our Conduct has been such c. prout in the second Declaration before recited Which said Royal Declaration of our said Lord the King last mentioned our said Lord the King afterwards to wit on the thirtieth day of April in the fourth year of his Reign aforesaid at Westminster aforesaid in the County of Middlesex aforesaid did cause to be printed and published throughout all England and for the more solemn Declaring Notification and Manifestation of his Royal Grace Favour and Bounty towards all his Leige-people specified in the Declaration last mentioned afterwards to wit on the fourth day of May in the fourth year of his Reign at Westminster aforesaid in the County of Middlesex aforesaid our said Lord the King in due manner did Order as followeth At the Court at Whitehall the Fourth of May 1688. By the King 's most Excellent Majesty and the Lords of His Majesty's most Honourable Privy-Council IT is this day Ordered by His Majesty in Council That His Majesties late Gracious Declaration bearing date the Twenty Seventh of April last be read at the usual time of Divine Service upon the Twentieth and Twenty Seventh of this Month in all Churches and Chappels within the Cities of London and Westminster and Ten Miles thereabout And upon the Third and Tenth of Iune next in all other Churches and Chappels throughout this Kingdom And it is hereby further Ordered That the Right Reverend the Bishops cause the said Declaration to be sent and distributed throughout their several and respective Diocesses to be read accordingly W m. Bridgeman And further the said Attorney-General of our said Lord the King on behalf of our said Lord the King giveth the Court here to understand and be informed That after the making of the said Order to wit on the eighteenth day of May in the fourth year of the Reign of our said Lord the King at Westminster aforesaid in the County of Middlesex

is not Evidence upon this Information Mr. Soll. Gen. We have proved it written and published in Middlesex Mr. Serj. Pemb. The contrivance and writing of a Libell is in itself penal and they may be punished for it if they be found guilty Now if they could give an undeniable Evidence concerning the publishing of it that is nothing to this point but if they should not give such Evidence or any Evidence at all of the publication yet if it be proved that it was written and contrived by them they would be guilty for so much if it be a Libell and this we say is local as well as all the rest and therefore we insist upon it that the writing and contriving must as well be proved to be in Middlesex as the publication for all is local L. C. Iust. There is no publishing yet proved Mr. Serj. Levinz It is true my Lord here is nothing of a Publication yet with your Lordship's favour for their Answer to His Majesty in Council was that they did not publish it all that is said yet is that they owned the Paper to be their hands My Lord does the owning of that own that it was written in the County of Middlesex or that it was contrived or made there No surely upon this Evidence the place is clearly at large My Lord this might have been done in the County of Surrey or Somerset or any other County Their Information is that they did consult and contrive to diminish the King's Prerogative at Westminster in the County of Middlesex and there they did write and cause to be written this Libell and there they did publish it suppose it should be granted that it is proved that this is the Archbishop's Hand-writing and these are their Names to it is there any one Evidence that any thing of this was done in Middlesex and my Lord that is the thing they are to prove Mr. Sommers If your Lordship please all matters of Crime are so local that if it be not proved to be done in the County where it is laid the party accused is as innocent as if he never had done the thing and with submission it is the very point of the Information that it be proved they are guilty of the Fact in the place where it is laid to be done L. C. Iust. This is the same thing over and over again but I am content to hear you Mr. Sommers at any time I have told you my opinion about reading of the Paper already if you 'll have it again you may Mr. Pollixfen Pray good my Lord spare us before it be read Mr. Iust. Holloway Mr. Pollixfen you have not yet had the Directions of the Court for the reading of it Mr. Att. Gen. My Lord when this Paper is read which we pray it may be we will answer their Objections but at present we say they are out of time Mr. Pollixfen Good Lord what a ●…ange thing is this We object against the reading of it and you 'll answer us after it is read Mr. Soll. Gen. Certainly my Lord we have done enough to prove that this is a paper owned by them in the County of Middlesex and we pray it may be read L. Ch. Iust. Truly I am of the same mind I was before that it is too soon to make the Objection and that the Paper ought to be read Mr. Soll. Gen. We submit to your Rule Mr. Pollixfen If it be the Will of the Court I have nothing to say Mr. Iust. Powell My Lord The Contrivance and Publication are both matters of Fact and upon Issue joined the Jurors are Judges of the Fact as it is laid in the Information but how can they be Judges of a matter of Fact done in another County and it must be presumed in favour of Innocence not to be done in this County but in another except they prove it Mr. Att. Gen. We are not yet ripe for arguing that point Mr. Soll. Gen. We are speaking only to the Court now for the reading of this Paper and the Jury are not Judges of that whether the Paper ought to be read or no that is merely a matter of Law and under the direction of the Court and therefore I pray since it is now in your Lordship's Judgment whether that Paper should be read that you would please to order it to be read L. C. Iust. I can only give you my own opinion let my Brothers give theirs Mr. Iust. Holloway There is no body against the reading of it my Lord I suppose my Brother Powell is not against its being read Mr. Iust. Powell But they say the King's Counsel must make it out first that the writing of it and the conspiring about it was in the County of Midds or there can be no judgment so much as to read it Mr. Pollixfen My Lord If the Objection be saved to us we shall not so much oppose the reading it only we would not be surprized in point of time Mr. Iust. Powell Nay if they consent to the reading we have no reason to hinder it L. C. Iust. Brother I believe they know well enough what they have to say for their Clients let the Paper be read Clerk reads The Humble Petition of William Archbishop of Canterbury Sir. R. Sawyer Read the whole Petition Pray my Lord that the whole may read Read the Top first Sir to whom it was directed L. C. Iust. Read the whole Clerk reads To the King 's Most Excellent Majesty The Humble Petition of William Archbishop of Canterbury and of divers of the Suffragan Bishops of that Province now present with him in behalf of themselves and others of their absent Brethren and of the Clergy of their respective Dioceses Humbly sheweth THat the great aversness they find in themselves to the distributing and publishing in all their Churches your Majesties late Declaration for Liberty of Conscience proceedeth neither from any want of Duty and Obedience to your Majesty our holy Mother the Church of England being both in her Principles and in her constant practice unquestionably loyal and having to her great Honour been more than once publickly acknowledged to be so by your Gratious Majesty nor yet from any want of due tenderness to Dissenters in relation to whom they are willing to come to such a Temper as shall be thought fit when that matter shall be considered and settled in Parliament and Convocation but amongst many other considerations from this especially because that Declaration is founded upon such a Dispencing Power as hath been often declared illegal in Parliament and particularly in the Years 1662 and 1672 and in the beginning of your Majesties Reign and is a matter of so great moment and consequence to the whole Nation both in Church and State that your Petitioners cannot in Prudence Honour or Conscience so far make themselves parties to it as the Distribution of it all over the Nation and the solemn Publication of it once and again even in

you but all that I was going to say would have amounted to no more than this That there being no Evidence against us we must of course be acquitted Mr. Just. Holloway My Lord did intend to have said as much as that I dare say L. C. Iust. Well Gentlemen of the Jury we have had Interruption enough Mr. Soll. Gen. My Lord I must beg your Pardon for interrupting you now and I am very glad these Gentlemen have given us this Occasion because we shall now be able to clear this Point There is a Fatality in some Causes my Lord and so there is in this we must beg your Patience for a very little while for we have notice that a Person of very great Quality is coming that will make it appear that they made their Addresses to him that they might deliver it to the King. L. C. Iust. Well You see what comes of the Interruption Gentlemen now we must stay Then there was a Pause for near half an hour Mr. Att. Gen. Pray my Lord put the Case that a Man writes a Libel in one County and it is found in another Is not he answerable unless he can shew something that may satisfy the Jury how it came there Mr. Soll. Gen. Ought he not to give an account what became of it L. C. Iust. No look you Mr. Attorney you must look to your Information and then you will find the Case that you put does not come up to it It is for Writing Composing and Publishing and causing to be published and all this is laid in Middlesex Now you have proved none of all these things to be done in the County Mr. Att. Gen. They did in Middlesex confess it was theirs L. C. Iust. Ay but the owning their Hands is not a publication in Middlesex and so I should have told the Jury Mr. Finch I beg your Lordship's pardon for interrupting you Mr. Att. Gen. But my Lord does it not put the Proof upon them to prove how it came out of their Hands into the King's Hands L. C. Iust. No the Proof lies on your part Mr. Pollixfen Pray my Lord give us your favour to dismiss us and the Jury Mr. Soll. Gen. My Lord our Witnesses will be here presently Mr. Att. Gen. Sure my Lord the Presumption is on our side Mr. Iust. Powell No the Presumption is against you for my Lord Arch-Bishop lived in Surry and it is proved was not out of Lambeth-House since Michaelmass till he came before the Council Mr. S. Pemb. Pray good my Lord we stand mightily uneasy here and so do the Jury pray dismiss us L. C. Iust. I cannot help it it is your own Fault Then there was another great Pause Lord Chief Iustice. Sir Bartho Shore now we have time to hear your Speech if you will. Mr. Po●…fen My Lord there is no Body come nor I believe will come Mr. Soll. Gen. Yes he will come presently we have had a Messenger from him Call Mr. Graham 〈◊〉 He is gone and said he would come presently 〈◊〉 〈◊〉 〈◊〉 My Lord he will bring ou●… Witnesses with him Then there was another 〈◊〉 Mr. S. Pemb. My Lord this is very unusual to stay thus for Evidence L. Ch. Iust. It is so but I am sure you ought not to have any ●…avour Mr. Solicitor Are you assured that you shall have this Witness that you speak of Mr. Soll. Gen. Yes my Lord he will be here presently L. Ch. Iust. We have staid a great while already and therefore it is ●…it that we should have some Oath made that he is coming Mr. Sol. Gen. The Cryer tells you that Mr. Graham did acquaint him that he would return presently L. Ch. Iust. Give him the Book Mr. Soll. Gen. Let your Left-hand give your Right-hand the Oath The Cryer sworn L. Ch. Iust. By the Oath that you have taken did Mr. Graham tell you there was any further Witness coming in this Case Cryer Yes my Lord he did he went out of the Hall and returned when your Lorship was directing the Jury and he asked me what the Court were upon and I told him you were directing the Jury and then he said my Lord Sunderland was a coming but he would go and prevent him and afterwards he returned and finding your Lordship did not go on to direct the Jury he said he would go again for my Lord Sunderland whom he had sent away and he is now gone for him and he said he would bring him with him presently L. Ch. Iust. Well then we must stay till the Evidence for the King comes for now there is Oath made that he is coming And after a considerable pause the Lord President came Mr. Attor Gen. My Lord we must pray that my Lord President may be sworn in this Case on behalf of the King. The Lord President sworn Mr. Attor Gen. My Lord with your Lordship's favour I would ask my Lord President a Question Your Lordship remembers where we left this Cause we have brought it to this Point That this Petition came to the King's Hands that it is a Petition written by my Lord Arch-bishop and subscribed by the rest of my Lords the Bishops but there is a Difficulty made whether this Petition thus prepared and written was by them delivered to the King and whether my Lords the Bishops were concerned in the doing of it and were privy o●… Parties to the Delivery Now that which I would ask your Lordship my Lord President is Whether they did make their Application to your Lordship to speak to the King. Mr. Soll. Gen. Did they make their Application to your Lordship upon any account whatsoever L. President My Lord my Lord Bishop of St. A●…ph and my Lord Bishop of 〈◊〉 came to my Office and told me they came in the Names of my Lord Arch-bishop of Canterbury and four others of their Brethren and themselves with a Petition which they 〈◊〉 to deliver to his Majesty and they did come to me to know which was the best way of doing it and whether the King would give them leave to do it or not they would have had m●… r●…d t●…ir Petition but I refused it and said I thought it did not at all belong to me but I would let the King know their desire and bring them an Answer immediately what his pleasure was in it which I did I acquainted the King and he commanded me to let my Lords the Bishops know they might come when they pleased and I went back and told them so upon which they went and fetch'd the rest of the Bishops and when they came immediately they went into the Bed-Chamber and 〈◊〉 another Room where the King wa●… this is that I know of the matter Mr. Soll. Gen. About what time was this pray my Lord L. President I believe there could not be much time between my coming from the King and their fetching their Brethren and going in to the King. Mr. Soll. Gen. They were with the King that

Council and this is nothing but a Petition against an Order of Council and if there be an Order that commands my Lords the Bishops to do a thing that seems grievous to them surely they may beg of the King that he would not insist upon it And for this Matter they were so well satisfied about it and so far from thinking that it was any part of a Libel that they left it out of the Information and so have made a deformed and absurd Story of it without Head or Tall a Petition directed to no Body and for nothing it being without both Title and Prayer so that this is plain is was lawful to Petition Then my Lord the next Thing is the Reasons which my Lords the Bishops come to acquaint the King with why in Honour and Conscience they cannot comply with and give obedience to this Order and the Reasons my Lord are two The first Reason that is assigned is the several Declarations that have been in Parliament several of which are mentioned that such a Power to dispense with the Law is against Law and that it could not be done but by an Act of Parliament for that is the meaning of the word Illegal that has no other signification but unlawful the same word in point of signification with the word Illicitè which they have used in their Information a thing that cannot be done by Law and this they are pleased to tell the King not as declaring their own Judgments but what has been declared in Parliament though if they had done the former they being Peers of the Realm and Bishops of the Church are bound to understand the Laws especially when as I shall come to show you they are made Guardians of these Laws and if any thing go amiss and contrary to these Laws they ought to inform the King of it My Lord the next thing is Because it is a Thing of so great moment and the Consequences that will arise from their publishing of this Declaration and that too my Lord for the latter I shall begin first with there can be no Question about or any pretence that this is libellous or false for certainly it is a Case of the greatest Consequence to the whole Nation that ever was therefore it cannot be false or libellous to say so My Lord I would not mention this for I am loth to touch upon things of this Nature had not the Information it self made it the very Gift of the Charge for the Information if there be any thing in it says that it was to diminish the King's Prerogative and Regal Power in publishing that Declaration Now my Lord what the Consequence of this would be and what my Lords the Bishops meant by saying It was a Cause of great Moment will appear by considering that which is the main Clause in the Declaration at which my Lords the Bishops scrupled which is the main Stumbling-block to my Lords and has been to many honest Men besides and that is this We do likewise declare It is our Royal Will and Pleasure that from hence-forth the Execution of all and all manner of Penal Laws in Matters Ecclesiastical for not coming to Church or not receiving the Sacrament or for any other Nonconformity to the Religion Established or for or by Reason of the Exercise of Religion in any manner whatsoever be immediately suspended and the further execution of the said Penal Laws and every of them is hereby suspended Now my Lord this Clause either is of some legal ●…ect and Signification or it is not If Mr. Attorny or the King's Council do say it is of no Effect in Law then there is no harm done then this Petition does no ways impeach the King's Prerogative in saying it has been declared in Parliament according as the King's Counsel do agree the Law to be But my Lord if it have any Effect in Law and these Laws are suspended by virtue of this Clause in the Declaration then certainly my Lord it is of the most dismal Consequence that can be thought of and it behoved my Lords who are the Fathers of the Church humbly to represent it to the King. For my Lord by this Declaration and particularly by that Clause in it not only the Laws of our Reformation but all the Laws for the preservation of the Christian Religion in general are suspended and become of no force if there be such an Effect in Law wrought by this Declaration as is pretended that is that the Obligation of Obedience to them ceaseth the Reason of it is plain the words cannot admit of such a Quibble as to pretend that the Execution of the Law is not the Suspending of the Law and that the Suspending the Execution of the Law is not a Suspending of the Law for we all know the Execution of every Law in its primary Intent is Obedience to it that of the Penalty comes in by way of Punishment and Recompence for their Disobedience Now my Lord if this Declaration does dischar●… the King's Subjects from their Obedience to and the Obligation from those Laws then pray my Lord where are we Then all the Laws of the Reformation are suspended and the Laws of Christianity it self by those latter words 〈◊〉 or for or by reason of Religion in any manner whatsoever so that it is not confined to the Christian Religion but all other Religions are permitted under this Clause And thus all our Laws for keeping the Sabbath and which distinguish us from Heathens will be suspended too My Lord this is such an Inconvenience as I think I need name no more and it is a very natural Confequence from that Clause of the Declaration it discharges at once all Ministers and Clergy-men from performing their Duty in reading the Service of the Church it discharges their Hearers from attending upon that Service When a Law is suspended the Obligation thereof is taken away and those that before thought themselves bound to obey now conclude they are not so obliged and what a mischief that will be to the Church which is under the Care of my Lords the Bishops your Lordship will easily apprehend These things my Lord I only mention to shew the great and evil Consequences that apparently follow upon such a Declaration which made my Lords the Bishops decline obeying the Order and put them under a necessity of applying thus to the King to acquaint him with the Reasons why they could not comply with his Commands to read this Declaration to the People because the Consequences thereof were so great it tending naturally to lead the People into so great an Error as to believe those Law●… were not in Force when in Truth and Reality they are still in Force and continue to oblige them And that being the second Reason in this Petition I come next to consider it to wit th●… the Parliament had often declared this pretended Power to be Illegal and for that we shall read the several

be a Libel although it 〈◊〉 true that they did so deliver it First my Lord there is a little disingenuity offered to my Lords the Bishops in only setting forth part and no●… the whole in only reciting the Body 〈◊〉 not the Prayer But my Lord with your Lordships favour taking the Petitionary part and adding it to the other it quite alters the Nature of the thing for it may be a Complaint without seeking redress might be an 〈◊〉 ●…atter but here taking the whole together it appears to be a Complaint of a Grievance and a desire to be eased of it With your Lordships favour the Subjects have a right to Petition the King in all their Grievances so say all our Books of Law and so says the Statute of the Thirteenth of the late King They may Petition and come and deliver 〈◊〉 ●…tion under the number of ten as heretofore they might have done says the Statute so that they all times have had a right so to do and indeed if they had not it were the most lamentable thing in the World that Men must have Grievances upon them and yet they not to be admitted to seek Relief in an humble ●…ay Now my Lord this is a Petition setting forth a Grievance and praying his Majesty to give Relief And what is this Grievance It is that Command of his by that Order made upon my Lords the Bishops to distribute the Declaration and cause it to be read in the Churches And pray my Lord let us consider what the Effects and Consequences of that Distribution and Reading i●… It is to tell the People that they need not submit to the Act of Unifarmity no●… to any Act of Parliament made about Ecclesiastical Matters for they are suspended and dispensed with this my Lords the Bishops must do if they obey this Order but your Lordship sees if they do it they lie under an Anathema by the Statute of 1 Eliz. for there they are under a Curse if they do not look to the preservation and observation of that Act But this Command to Distribute and Read the Declaration whereby all these Laws are dispensed with is to let the People know they will not do what that Act requires of them Now with your Lordships favour my Lords the Bishops lying under this pressure the weight of which was 〈◊〉 grievous upon them they by Petition apply to the King to be eased of it which they might do a●… Subjects besides my Lord they are Peers of the Realm and were most of them sitting as such in the last Parliament where as you have heard it was declared such a Dispensation could not be and then in what a Case should they have been if they should have distributed this Declaration which was so co●… to their own Actings in Parliament What could they have answered for themselves had they thus contributed to this Declaration when they had themselves before declared that the King could not dispense And that was no new thing for it had been so declared in a Parliament before in two Sessions of it in the late Kings Reign within a very little time one of another and such a Parliament that were so liberal in their Aides in the Crown that a Man would not think they should go about 〈◊〉 deprive the Crown of any of its Rights it was a Parliament that did do as great services for the ●…own as ●…ver any did and therefore there is no reason to suspect that if the King 〈◊〉 had such a power they would have appeared so earnest against it But my Lord if your Lordship pleases these are not the beginnings of this matter for we have shewed you from the Fifteenth of Richard the Second that there was a power granted by the Parliament to the King to dispense with a particular Act of Parliament which argues that it could not be without an Act of Parliament And in 1662 't is said expresly that they cannot be dispensed with but by an Act of Parliament 'T is said so again in 1672 the King was then pleased to assume to himself such a power as is pretended to in this Declaration 〈◊〉 yet upon Information from his Houses of Parliament the King declared himself satisfied that he had no such power Cancelled his Declaration and promised that it should not be drawn into Consequence or Example And so the Commons by their Protestation said in Richard the Seconds time That it was a Novelty and should not be drawn into Consequence or Example Now my Lord if your Lordship pleases if this matter that was Commanded the Bishops to do were something which the Law did not allow of surely then my Lords the Bishops had all the reason in the World to apply themselves to the King in an humble manner to acquaint him why they could not obey his Commands and to seek relief against that which lay so heavy upon them Truly my Lord Mr. Attorney was very right in the opening of this Cause at first that is That the Government ought not to receive affronts no nor the Inferior Officers are not to be affronted a Justice of Peace so low a Man in Office is not for a Man to say to a Justice of Peace when he is executing his Office that he does not do right is a great Crime and Mr. Attorney said right in it But suppose a Justice of Peace were making of a Warrant to a Constable to do something that was not Legal for him to do if the Constable should Petition this Justice of the Peace and therein set forth Sir you are about to command me to do a thing which I conceive is not Legal surely that would not be a Crime that he was to be punished for for he does but seek relief and shew his Grievance in a proper way and the distress he is under My Lord this is the Bishops Case with submission they are under a distress being Commanded to do a thing which they take not to be Legal and they with all humility by way of Petition acquaint the King with this Distress of theirs and pray him that he will please to give Relief My Lord there is no Law but is either an Act of Parliament or the Common Law for an Act of Parliament there is none for such a power all that we have of it in Parliamentary Proceedings is against it and for the Common Law so far as I have read o●…it I never did meet with any thing of such a Nature as a Grant or Dispensation that pretended to dispense with any one whole Act of Parliament I have not so much as heard of any such thing mentioned by any of the Kings Council But here my Lord is a Dispensation that dispenses with a great many Laws at once truly I cannot take upon me to tell how many there may be forty or above for ought I know Therefore my Lord the Bishops lying under such a Grievance as this and under such a Pressure being Ordered