that the Defendant does Lupum auribus tenere And so the Judgment was arrested But we find that soon after when the Judges of that Court were chang'd the same Plaintiff brought a new Action for the same Cause And it was adjudged for the Plaintiff That the Action would lie but the Judges acknowledged it was the first Precedent I suppose it was upon pleading Not Guilty Perhaps the Court might have been of another Opinion had the Defendant pleaded specially and justified according to the Opinion of Judge Dodderidge The Case is Cro. Car. 15 Latch 79. The allowing of such Actions of Conspiracy or upon the Case or of Indictments or Informations for what is said or done in a Course of Justice and especially by way of Discovery of Treasons would prove of a mischievous Consequence And would be an occasion of multiplying Actions against the Parties to the Suits against Councel the Attorneys the Witnesses and so Suits would be infinite As in this present Case Should an Action be adjudg'd to lie against the Defendant for what he has acted by Authority of Parliament what a multitude of Actions would be stirred up by it If the Speaker be liable to this Information for what he has done by the same Reason he would be liable to the Actions of the several great Persons that are said to be defamed by the Printing of Dangerfields Narrative And if the Speaker be liable who acted but by Command of others and as their Minister how much more would all those Persons be ilable by whose Command he so acted And how many Narratives have there been printed wherein several great Persons were severely reflected on and how many Votes of the like Nature have there been Printed So that there would arise a Multitude of Suits In Sir Drue Druries Case 6. Rep. 74. The Justices in judging of that Case give a very good Rule and Caution They say That Judges ought to have good Consideration in all Cases depending before them not only of the present Cases but also of the Consequences What general Prejudice may ensue upon them either to the King or Subject The Case before you exceedingly requires that Consideration The Prejudice to the King will be that he will not be Safe for by this means Men will be discouraged from discovering Treasons The Subjects will receive Prejudice by the multitude of Suits that will arise by it This mas suffice to be said in maintaining the first Proposition That no Information or Action lies for what is said or done in a Course of Justice The Minor Proposition is That what is here done by the Defendant in this Case was done in a Course of Justice and in a Legal Proceeding and that in the highest Court of the Nation in the Court of Parliament and done according to the Law and Custom of Parliament This I must make out in the next Place In the making this out I am under a Necessity of speaking of the transcendent Power of the High Court of Parliament and I must assert these Positions following 1. That the House of Commons was originally and from the first Constitution of the Nation the Representative of one of the three Estates of the Realm and a part of the Parliament 2. That what is done by either House according to the Law and Usage of Parliament is properly and in the Judgment of Law the Act of the whole Parliament And that what concerns the One must of necessity concern the Whole not meerly by Consequence but by an immediate Concernment as being One and Entire 3. That what hath been acted in our present Case by the Defendant as Speaker and by the House of Commons whose Minister he was and by whose Command and Order he did What he did was done according to the Law and Usage of Parliament As to the first That the House of Commons was from the first Constitution of this Kingdom a part of the Parliament There has been an Opinion that hath been stifly maintained by some Divines and others of late That the House of Commons originally were no part of the Parliament at least not as now elected and consisting of Knights Citizens and Burgesses but that their Beginning was in the forty ninth Year of King Henry 3. when that King had given a total overthrow at the Battle of Evesham to Symon Montford Earl of Leicester and the Barons And that to ballance the Power of the Barons that King caused the Knights Citizens and Burgesses to be chosen and to make a Part of the Parliament And from hence some Unquiet Innovating Writers quorum res spes ex adulatione pendent and who would destroy Foundations and remove our Ancient Land-marks and the Ancient and Just Limits and Boundaries of Power and Authority Persons of necessitous Estates or of greedy and ambitious Appetites which drive them upon devising how to do some acceptable Service to those that maintain them Or at the best out of unsetled Judgments and too much Zeal which carries them to a contrary extream These Men conclude That therefore all the Power and Priviledge the House of Commons claims is not by Prescription but that they depend upon the King 's Royal Will and Pleasure and had their Original by his meer Concession and not by Ancient Inherent Right nor Original Constitution and therefore may be resumed at Pleasure It was one of the Articles against Dr. Manwaring in the Parliament 3 Car. 1. for which he was Impeached by the Commons and Sentenced by the Lords in Parliament That to Subvert Scandalize and Impeach the good Laws and Government of this Realm and the Authority of the High Court of Parliament and to avert his Majesties Mind from calling of Parliaments and to alienate his Royal Heart from his People he did in his Sermons and in his Books printed endeavour to persuade the King That his Majesty was not bound to observe the Laws of the Realm concerning the Rights and Liberties of the Subjects That Authority of Parliament was not necessary for raising of Aids and Subsidies His Sentence was Imprisonment during pleasure and but 1000l Fine for this high Offence not 20000l as hath been of late times He was to acknowledge his Offences as it should be set down by a Committee in writing at the Bars of both Houses He was suspended from his Ministry Disabled to preach at Court. His Books were to be call'd in and burnt in London and both the Universities Power limited by Law is safest It may be thought Potestas minor sed tutior diuturnior Ea demum tuta est Potentia quae viribus suis modum imponit To encounter these new and upstart Opinions I shall mention an Author or two whom all sober men reverence that are of a contrary Judgment to these new Authors And they are either Eminent Lawyer or Divines And I am the more encourag'd to do it because His Majesty that now
the ninth of November in the said Information specified or at any other Time after the said Session of Parliament or before it or otherwise or in any other manner than as he has above alledged And this he is ready to aver c. Wherefore and for that what he so did was done by him as Speaker of the House of Commons in Parliament and by their Order and Sitting the Parliament He demands the Judgment of this Court Whether this Court will take any further cognizance of this Matter Kings Bench The Kings Attorney is Plaintiff and W. W. Esq Defendant in an Information for a Misdemeanour The Information sets forth c. vide the Brief of the Record THe Information taken singly by it self without the Defendents Plea contains a very Severe and Heavy Charge in it against the Defendant set out with the highest Aggravations And this against a Gentleman of the Profession of the Law and one who hath had the Honour to be Speaker of several Parliaments We may observe in this Information the worst of Adjectives or Epithites fastned upon the Defendant It stiles him A Pernicious and Seditious Man. It charges him with the worst of Actions sc. Stirring up of Sedition Disturbing the Peace of the Kingdom endeavouring to procure Ill-will between the King and his Subjects and to bring the D. of Y. into Contempt with the King and his Subjects and with the Printing and Publishing a False Scandalous Seditious and Infamous Libel These Crimes and Actions are set out in Mr. Attornies Information with the worst of Adverbs and with a great Heap of them together viz. That these things were done by the Defendant Falsly Vnlawfully Vnjustly Wickedly Maliciously Scandalously Seditiously and Devillishly And to add if possile to all this it is charged to be done out of one of the basest Principles Out of Malice and for one of the most Sordid and Odious Ends viz. For his own Lucre. It may further be observed That the Information does not alledged or affirm That there is any such Person in the World as Thomas Dangerfield though it mention the Name nor that any such Person did ever Frame or Draw up any such Scandalous and Libellous Book or Information as is mentioned in Mr. Attorneys Information But for all that Mr. Attorney shews the Name of Thomas Dangerfield may be but a feigned or borrowed Name and that the Defendant may be the Author and Composer of this Libel as well as the Publisher And one would not imagine upon reading Mr. Attorney's Information that any thing of these Matters thus charged was ever transacted in Parliament But Mr. Attorney gives them another Date both of Time and Place He does not lay the Scene at Westminster but at S. Martins in the Fields and he times it to the Year 1682. whereas there was no Parliament in that Year This was warily done Thus the Case stands upon Mr. Attorney's Information and should it be left here it would be a wosul Case with the Defendant But as Solomon says in his Proverbs The first in his own cause is just then comes the other party and enquires into him The plain English of which is as we use to say One Tale is good till another is told The Defendant in his Plea states the matter truly and fully and tells us That there is nothing true in this Information exhibited against him save only that there was such an Information of Dangerfields but that the Defendant was none of the Author It was drawn up and delivered in to both Houses of Parliament first to the Lords upon Oath and there ordered to be entred in their Journal And afterwards delivered at the Bar of the House of Commons And that the Defendant being Speaker of the Commons he examined that Information of Dangerfields and directed the Printing of it But it was all done in time of Parliament and ordered to be done by the House of Commons By this Narrative of the Plea all the unlucky Adjectives and untoward Adverbs are thrown off and the Defendant cleared from the Malice Nor is it true that is said in Mr. Attorney's Information To be done for the Defendants Lucre. He did it out of Obedience to the Parliament and he denies that he made any Profit by it but according to the Order of the House the Profit of the Printing was to Dangerfield And all this is confessed by the Demurrer The Plea consists of these Parts Matter of Fact Matter of Record and Matter of Law. It begins with Matter of Law and sets down the Law and Custom of Parliament Then he does assume the Matter of Fact and of Record and brings them home to that Law. He tells us That for certain there was such a thing as a Popish Plot and that it was a Desperate Horrid Devillish Plot. And here all the bitter Adjectives and Adverbs would have been well bestowed rather than upon the Speaker of that Parliament which Parliament with such admirable Zeal and Courage did prosecute some of those Plotters He sets forth That the Lord Stafford was in Parliament Convict before the Lords of High Treason committed in that Plot and he was Covicted at the Prosecution of the Commons according to the Law and Custom of Parliament He says That the King in his Speech to the Lords and Commons charged them to make a further strict and impartial Enquiry after this Plot. Then the Plea tell us They did accordingly make an impartial Enquiry and diverse others were thereupon convicted of that Plot. It now appears plainly That all that is contained in this Plea was not only done during the Parliament but by the Parliament it self and that the Defendant only acted as Speaker And it is worth the remembring too That there has been another Parliament since namely that at Oxford And though all that was done by him in the Parliament at Westminster was then very well known and remembered and though he were so Pernicious and Seditious a Man in the Opinion of Mr. Attorneys Information yet the World had a better Opinion of him for he was chosen Speaker again in that latter Parliament and his Majesty approved of him At last the Defendant concludes his Plea to the Jurisdiction of this Court viz. That what he had so acted being acted in Parliament time and by Order of Parliament he demands the Judgment of this Court Whether they will take Conusance of it The Attorney General demurr'd to it THe Subject Matter of this Record is a very large Field viz. The Power and Jurisdiction of Parliament and yet I shall have but a narrow Path to walk in It is a very Nice and Tender Point It is my Case as it was heretofore with those that were to undergo the old Saxon Trial by Fire Ordail per ferrum candens If I tread aside and make a wrong Step I may do my self a Mischief But by the Grace of God I shall take care neither on the one
and at the Trial in giving of Evidence to the Jury he did indeed speak those Words but averr'd that they were pertinent to the Matter and were part of his Instruction It was resolv'd upon a Demurrer That the Plea was good the Words being pertinent though they were false And there is a further Reason given by the Court in that Case viz. The Words appear not to be spoken out of Malice And no Actions of this sort nor will any Indictment of this Nature lie unless there be Malice in the Defendant and where there is any justifiable occasion of speaking words that a man in discharge of his Function or Calling is led by the Subject-Matter of Discourse as a Preacher or Pleader or the like to speak words in such Case it shall be presumed they were not spoken out of Malice In the Case of an Attorney Sir E. C. in his 2d Instit. in his Exposition of the Stat. of Articuli super Chartas 28E 1. c. 10. tells us That in the very next year after the making of that Stat. viz. 29 E. I. Will. de Weston brought an Action of Conspiracy in the Kings Bench against William of Hempswell Parson of Newton and John of Malden Parson of Askerby for causing the Plaintiff to be cited before the Arch-Deacon of Linc. for a Trespass whereof he had been acquitted in the King 's Court. John of Malden pleaded That he was Communis Advocatus pro suo dando and so justify'd as an Attorney and it was found the Parson was Communis Advocatus and so not guilty of the Conspiracy In the Case of a Witness For what he says as a Witness or for what is said against him to disable him from being a Witness or to take off his Credit no Action of Slander will lie 35 H. 6. 14. In an Action of Conspiracy one of the Defendants justify'd as being a Witness to the Jury Crok 432. In the King's Bench Weston against Dobneet in an Action for Slander There was a Suit in the Spiritual Court and the Plaintiff that brought the Action of Slander was produced as a Witness in that Cause and the Defendant in that Suit in the Spiritual Court put in Exceptions against him That he had been perjur'd and therefore ought not to be used as a Witness Thereupon Weston the Witness brought this Action for that Slander And after Arguments the whole Court held that the Action of Slander did not lie for this manner of Slander because it was in a course of Justice and not ex Malicia In a Writ of Conspiracy One of the Defendants pleaded that he was one of the Indictors Judgment si Actio And the Plea is allow'd 20 H. 6 5. 33. Nay though it be not in a course of Justice in a Suit of Law yet if a man be in the doing of his Duty and in discharge of his Function and his lawful Calling and in discoursing of a Subject proper for his Function and enforcing of every mans duty of avoiding of any Sin and in pursuit of it tells a Story which he takes up upon trust and does not know it to be false and it prove at last to be utterly untrue and an innocent person is highly slandered by it yet he shall not be subject to an Action of Slander for it The occasion of speaking shall clear him from the Malice without which the Action will not lie In the Book of Martyrs written by Fox there is a Story of one Greenwood who lived in Suffolk that he had perjur'd himself before the Bishop of Norwich in testifying against a Martyr that was burnt in Queen Mary's time and says Fox this Greenwood afterwards by the just judgment of God had his Bowels rotted in him and so he died This Story by Fox in his Book of Martyrs was utterly false of Mr. Greenwood and after the Printing of that Book of Martyrs Mr. Greenwood was living in that very same Parish One Prist a Parson happen'd to be Presented to the Living of that Parish where this Mr. Greenwood then dwelt and 27. Eliz. in one of his first Sermons happen'd to inveigh against the Sin of Perjury to which his Text did lead him and the better to deter the People from the Sin of Perjury he told this Story out of Fox's Book of Martyrs and named the very Man Mr. Greenwood and Mr. Greenwood himself was then in the Church and heard this Story told of himself but the Preacher knew it not but thought the Story to be true Greenwood brings an Action of Slander against Prist the Preacher and upon the Trial of the Cause before the Lord Chief Justice Wray the Case appearing to be thus he directed the Jury to find for the Defendant for that it appear'd it was not done out of Malice And Ch. I. Popham affirm'd it to be good Law it being a Matter deliver'd after his occasion as Matter of Story This Case is cited by Sir E. C. in Sir Henry Mountagu's Case before mentioned Crook f. 90. With this agrees the Case of the Lord Cromwel against Denny a Vicar 4 Rep. 13. b. in an Action de Scand Magn. There is a Case in many Circumstances of it much resembling our Case It was the Case between Smith and Crashaw and others M. 20 in the Kings Bench in Sir Palmer's Rep. 315. An Action upon the Case is there brought against the Defendants for maliciously causing the Plaintiff to be indicted of Treason upon which Indictment the Grand Jury found an Ignoramus To this Action the Defendants pleaded Not Guilty and were found Guilty It was moved in Arrest of Judgment That to accuse one for Treason was not Actionable for the Safety of the King and State For if a Man be subject to an Action for it it will be a means that Treason shall be smothered and Men will not expose themselves to Actions by making such Discoveries J. Houghton held the Action would not lie upon an Ignoramus found for by that the Party is not acquitted but may be Indicted again and Convicted But he holds That if he be Indicted and upon Trial Legitimo modo acquietatus then he shall have an Action upon the Case in Nature of a Conspirary for now he is absolutely acquitted and cleared of the Accusation and never can be Indicted again for that particular Fact. Dodderidge agrees with Houghton and puts this Case If an Action of Conspiracy be brought against a Man For Indicting the Plaintiff of Treason The Defendant may Plead Specially and that is the safest way of Pleading That he heard the Plaintiff speak such and such Treasonable Words and that he thereupon complained to a Justice of Peace who committed the Plaintiff upon it and this says he shall excuse him Ley Chief Justice inclines too against the Action and gives a strong Reason Because says he it is Misprision to Conceal it and yet if we allow of this Action it shall be Dangerous too to discover it so
sacred Authority of any Court that it hath an absolute power that it is the highest Court in the Realm is acknowledged by our most Learned and gravest Writers and Historians for I would not wholly omit them though I do not need them but I relie only and put all the stress of my proofs and arguments upon my Authorities in Law. Cambden in his Britannia Summam sacrosanctam Authoritatem habet Parliamentum Knighton de eventibus Angliae l. 1. fo 2681. col 1 2. He calls it the Highest Court of the Realm So it is call'd in Trewinnard's Case in Dier 60 61. Sr. Thomas Smith in his Common-Wealth of England l. 2. c. 2. fo 50 51. In Comitiis Parliamentariis posita est omnis absolutae potestatis vis Sir R. Cotton in his Posthuma edit at Lond. pag. 345. cited by Mr. Pryn in his Preface to Sir Robert Cotton ' s Abr. The Parliament controlls all Inferior Courts and all Causes of difficulty cum aliqua dubitatio emergit referr it to the Parliament To shew their power and jurisdiction upon Erroneous proceedings in other Courts by authorities in Law which confirms one of my Reasons In Trewinnard's case it is said that though the Parliament erre it is not reversible in any other Court This is spoken in a case where the then occasion was upon a Judgment given only by the House of Commons in a case of Priviledge Agreeable to this is 21 E. 3. fo 46. Br. Abr. tit Error plac 65. in the latter end of that case and 7 H. 6. Br. Abr. tit Error plac 68. by Cottesmore and 1 H. 7. fo 19. Br. Error plac 137. Error in Parliament shall be revers'd in Parliament non aliter for there is not an higher Court. 1 H. 7. fo 19 20. By all the Judges in the Exchequer-Chamber for a Judgment in the King's-Bench Error must be sued in Parliament and as the Parliament shall correct the Judgments so they are to correct the Judges that give corrupt and dishonest Judgments These are the words and the opinions of the Lord chief Justice Vaughan in his Reports fo 139. in Bushel's case Such says he in all ages have been complained of to the King in the Star-Chamber which is a Court now dissolv'd by Parliament or to the Parliament He there mentions many Judges those 44. that were hang'd in King Alfred's time before the Conquest for corrupt judgments and those in the time of E. 1. E. 3. and R. 2. for their pernicious resolutions He vouches the Journals of Parliament and instances in the Judgment of Ship-money in the last King's time and the particular Judges impeach'd Sir E. C. in his 12 Rep. fol. 64. the words are spoken by Sir E. C. but as that Rep. says with the clear consent of all the Judges The King hath his Court that is to say in the Vpper House of Parliament in which he with his Lords is the Supreme Judge over all other Judges For if Error be in the Common-Pleas that may be revers'd in the King's-Bench and if the Court of King's-Bench erre that may be revers'd in the Upper House of Parliament by the King with the assent of the Lords Now though this is spoken of the Lords House only yet it must be again remembred that the Parliament as I prov'd before is one entire Body and that their power in the right of it is entire though as to the exercise of it it is distributed into parts and is divided Not can the House of Lords exercise any power as an House of Parliament or as a Court for Errors without the House of Commons be in being at the same time Both Houses must be Prorogu'd together and Dissolv'd together like the Twins of Hippocrates they live and die together and the one cannot be in being without the other also at the same time be in being too 2. Inst. 408. Matters of difficulty were heretofore usually Adjourn'd to Parliament but says he 't is now disused And 2. Inst. 599. Courts at variance properly complain to the Parliament 4. Inst. In the Chapter of the Court of the Kings-Bench Errors in the Kings-Bench in matters that concern their Jurisdiction and other Cases there excepted in the Act of 27 Eliz. Cap. 8. cannot be Revers'd but in the High Court of Parliament 4. Inst. Fol. 67. There is a Court Erected by the Statute of 14 E. 3. Cap. 5. Stat. 2. For redress of delays of Judgments in the Kings great Courts consisting of a Prelate Two Earls and Two Barons to be chosen in Parliament by that Statute If the Case before them be so difficult that it may not well be determin'd without assent of the Parliament it does not say by the House of Lords only then shall the tenor of the Record be brought by the said Prelate Earls and Barons into the next Parliament and there a final Judgment shall be given Si obscurum difficile sit Judicium ponantur judicia in respectu usque magnam curiam Rot. Parl. 14. E. 3. Num. ult Sir Jeffery Stanton's Case 25. E. 3. Cap. 2. The Chapter of Treason in the 2. Inst. Fol. 21. The Judge or Court in some Cases is to forbear going to Judgment till the Cause be shewed before the King and his Parliament whether it ought to be judged Treason or not That this Court proceeds by the ordinary Rules of the Common Law but that High Court of Parliament proceeds not by that Law but by a Law peculiar to that High Court which is called Lex Consuetudo Parliamenti and consists in the Customs Usages and Course of Parliament and therefore this Court nor no other inferior Court can for this very Reason judge or determine of what is done in Parliament or by the Parliament If this Court should take upon it to proceed in such cases it would justly be said of it as a thing very irregular Metiri se quemque suo modulo ac pede verum est Sir Rob. Cott. Abr. 20. R. 2. nu 14 15. Sir Tho. Haxey delivered a Bill to the Commons in Parliament for the honour and profit of the King and of all the Realm complaining of the outragious Expences of the Kings House and namely of Bishops and Ladies Here the Camb. Dr. I have before mention'd would take occasion again to complain of the sauciness of this Bill K. R. 2. was offended with the Commons for preferring this Bill to the King for it seems they had entertain'd this Information from a particular hand as was done in our Case from Dangerfield and they proceeded upon it K. R. 2. said it was an offence against his Dignity and Liberty and said he would be free therein And Sir John Bussey the Speaker to the Parliament as that Roll of Parliament calls him is charg'd to declare the Name of him who Exhibited that Bill By this it appears the King could not take notice of what was done in the Commons-House or deliver'd to them but by