I Do appoint Benjamin Tooke to Print these Proceedings and Order that no other Person presume to Print the same Geo. Jefferys THE ACCOUNT Of the manner of EXECUTING A Writ of Inquiry OF DAMAGES BETWEEN HIS ROYAL HIGHNESS JAMES Duke of York c. AND TITVS OTES Which was executed at the Bar of the Court of KINGS BENCH at WESTMINSTER on Wednesday the 19th of June 1684. in the presence of the High Sheriff of Middlesex LONDON Printed for Benj. Tooke at the Ship in S. Paul's Church Yard 1684. THE ACCOUNT Of the manner of EXECUTING A Writ of Inquiry OF DAMAGES BETWEEN HIS ROYAL HIGHNESS JAMES Duke of York c. AND TITVS OTES Die Mercurii 18. Junii An. Dom. 1684. B. R. Dux Ebor. versus Otes HIS Royal Highness the Duke of York having brought an Action against Titus Otes grounded upon the Statute de Scandalis Magnatum for very Slanderous and Opprobrious Words the Defendant suffered Judgment to go against him by default and thereupon a Writ of Inquiry was taken out directed to the Sheriff of the County of Middlesex to enquire by a Jury of that County what Damages the Plaintiff had susteined hereby and upon a Motion made at the Court of Kings Bench a day was given to the Defendant to shew cause why that Writ of Inquiry should not be executed at the Bar of that Court which he not doing it was ordered that it should be executed at the Bar on this day and that the High Sheriff should appear and attend the execution of the Writ in person Accordingly this day Sir Peter Daniel Knight and Samuel Dashwood Esquire the present Sheriff of the County of Middlesex came into this Court and being placed at the Table at the Judges feet were during the Execution of the Writ covered Mr. Tho. Rous the present Undersheriff managed it and proceeded in this manner Mr. Undersheriff Cryer call Sr. Charles Lee. Cryer Vous avez Sr. Charles Lee. Who was sworn thus Mr. Undersheriff You shall well and truly enquire of Damages between the most illustrious Prince JAMES Duke of York and Albany Plaintiff and Titus Otes Defendant and therein a true Verdict give according to your Evidence So help you God The rest were sworn thus Mr. Undersheriff Sir William Hill Sir Richard Downton and Sir John Berry the same Oath your Foreman hath for his part taken you and every of you for your parts shall well and truly keep So help you God Mr. Undersheriff Thomas Harriott Thomas Row and Walter Brydall the same Oath c. Edward Guise Thomas Done and William Wood the same Oath c John Sharp and Nehemiah Arnold the same Oath c. Will you please to have any more than twelve sworn L. C. J. How many do you use to have Pray swear an odd Number as you used to do Mr. Undersheriff Then I will swear three more and that will be just fifteen Francis Stephens Nicolas Bagster and John Kirk The same Oath c. The Names of them that were upon the Inquiry Sir Charles Lee Knight Sir William Hill Knight Sir Richard Downton Knight Sir John Berry Knight Thomas Harryot Esquire Thomas Rowe Esquire Walter Brydal Esquire Edward Guise Esquire Thomas Done Esquire William Wood Esquire John Sharpe Esquire Nehemiah Arnold Esquire Francis Stevens Esquire Nicolas Baxter Esquire John Kirke Gentleman Mr. Undersheriff Gentlemen you that are sworn hear the Kings Writ L. C. J. Ay road it to them Mr. Undersheriff CHARLES the Second by the Grace of God of England Scotland France and Ireland King Defender of the Faith c. to the Sheriff of Middlesex Greeting Whereas the most Illustrious Prince JAMES Duke of York and Albany one of the Nobles and Peers of England our most dear and only Brother who as well c. lately in our Court before Us at Westminster by Bill without our Writ impleaded Titus Otes then in the Custody of the Marshal of our Marshalsea before us being For that whereas in a Statute made in the Parliament of Richard the Second late King of England after the Conquest held at Gloucester in the Second Year of his Reign amongst other things It is ordained and strictly prohibited that from thence none should be so hardy to devise tell or relate of the Prelates Dukes Earls Barons and other Nobles and great Men of England nor of the Chancellor Treasurer or Clerk of the Privy Seal Steward of the King's Houshold Justices of the one or of the other Bench nor of other great Officers of the Kingdom aforesaid any false News Lyes or any such false things whereby Scandal or Discord within the said Kingdom might arise and whosoever should do this should incur and have the Penalty otherwise thereon ordained by the Statute of Westminster the first as in the Statute aforesaid is more fully contained And whereas the fourth day of December in the Five and Thirtieth Year of our Reign and long before the yearly Rents Issues and Profits arising or due and payable for or by reason of the General Post Office within this Kingdom of Emgland for the carriage of Letters before were erected and yet are established upon the said most Ilustrious Prince JAMES Duke of York and Albany The aforesaid Titus Otes the Statute aforesaid not considering but the good Name State Credit Dignity and Honour of the said JAMES Duke of York and Albany our Brother devising and malitiously intending to hurt and detract and Him the said JAMES Duke of York and Albany our Brother into the great displeasure and hatred of Us and of the Peers of this Kingdom of England and also divers other venerable Persons our Subjects to bring out his meer Malice and Envy had and forethought the aforesaid fourth day of December in the Year of our Reign the five and Thirtieth at the Parish of S. Martin in the Fields in the County of Middlesex aforesaid upon a certain discourse then had aed moved by and between the aforesaid Titus Otes and divers of our Leige People of and concerning the aforesaid JAMES Duke of York and Albany our Brother and of and concerning a certain Letter in the hand of the aforesaid Titus Otes at that time being divers false News and horrible Lyes of the aforesaid JAMES Duke of York and Albany our Brother at that time and yet being of the Peers and Nobles of this Kingdom in the presence and hearing of divers venerable Persons publickly falsly maliciously and scandalously said and related and with a loud voice published in these English words following viz. This Letter the Letter aforesaid so in the hands of the afore-said Titus Otes as is beforesaid being meaning cost me the said Titus Otes meaning ninepence and might have been brought for a peny I himself the aforesaid Titus Otes meaning know no body is the better for it but that Traitor JAMES Duke of York the aforesaid JAMES Duke of York and Albany our only Brother meaning And the aforesaid Titus further devising and maliciously intending the
distinctly and openly you send and this Writ Teste Sr. George Jefferys Knight and Baronet at Westminster the Thirtieth day of May in the Year of our Reign the Six and Thirtieth Ri. Swift Henley You are to enquire what Damages his ROYAL HIGHNESS the Plaintiff has sustain'd by means of the Premisses As also what Costs he has been at in this Suit Mr. Hanses May it please your Lordship you Mr. Sheriffs and Gentlemen of the Jury His Royal Highness the Duke of YORK is Plaintiff and Litus Otes is the Defendant And this is in an Action of Trespass and Contempt grounded upon the Statute of SCANDALUM MAGNATUM wherein his Royal Highness sets forth That whereas such a Statute was made prohibiting the Slandering the Great Men and Peers of the Kingdom and the Plaintiff being the KING 's Onely Brother and a Peer the Defendant upon a Discourse between him the Defendant and some other Persons about a Letter that the Defendant had then in his Hands Publickly Falsly and with an intent to scandalize the Plaintiff spoke these English words This Letter meaning the Letter then in the Defendant's Hands cost Me meaning the Defendant Nine-pence and might have been brought for a Penny I meaning the Defendant know no Body is the better for it but that Traytor JAMES Duke of YORK meaning the Plaintiff Gentlemen This is not all the Declaration goes on further and says That the Defendant intending further to scandalize the Plaintiff the Sixth of December in the Thirty fifth Year of this King upon a Discourse had and moved by and between him the Defendant and some other Persons in the presence of divers venerable Persons said these words of the Plaintiff The Duke of YORK meaning the Plaintiff is a Traytor And this is laid to the Plaintiff's damage of One hundred thousand Pounds The Defendant has not pleaded and the Plaintiff has signed his Judgment and now you Gentlemen are to enquire of the Damages Mr. Att. Gen. You observe Gentlemen the Words are acknowledged by the Defendant's default and not pleading so that they were spoken is owned by him and you are to enquire only of the Damages And I think there will need nothing to be said for the Aggravation of them they are Words of the highest Nature in respect of Slander and Scandal that can be spoken or thought of Accusing Him of Treason We shall only call you some Witnesses to prove this way of Discourse to be his constant habit in all places and among all persons and Company inveighing against the Government and particularly against his Royal Highness the Plaintiff and then you will I know give such Damages as may be fit to repair the Plaintiff's Honour Mr. Sol. Gen. We will call some Witnesses to give you an Account how he uses to treat the Plaintiff in all Companies and we shall begin with Mr. Smith And the truth is the proving of the Words will demonstrate the Malice of them and the Manner and Circumstances of speaking will make them appear to be such as need nothing to be said for their Aggravation at all Swear Mr. James Smith Mr. Under-Sheriff The Evidence that you shall give to the Sheriffs and the Jury sworn about the Matter in Question shall be the Truth the whole Truth and nothing but the Truth Mr. Sol. Gen. Mr. Smith pray will you tell the Court and the Jury what you have heard the Defendant Otes say of his Royal Highness Mr. Smith At the last Westminster Parliament as I was sitting in a Coffee-house I saw Mr. Otes he had a Letter in his hand and he said This Letter cost me Nine-pence it might have been brought for a Penny I know no Body that is the better for it but a Traytor to the best of my remembrance he said the Duke of York Mr. Att. Gen. Swear Mr. Penniston Whaley which was done what Words did you hear Mr. Otes say of his Royal Highness Mr. Whaley The time was either the Easter or Whitsontide after Sir Thomas Gascoigne's Tryal Mr. Sol. Gen. What were the Words you then heard him say Mr. Whaley It was at the Bishop of Ely's Table at Ely House I had received the Sacrament at the Chappel there that day and so had the Doctor too it was upon Easter-day or Whitsunday I suppose because I never used to receive the Sacrament here in Town but one of those two times and Dr. Otes and I were sitting there and some Discourse happened about Sir Thomas Gascoigne's Tryal and he fell very foul upon the Jury and said They were a Company of profligate Villains or some such expression as he was wont to use and said He would have them Attainted Then said I to him Doctor you are a good Man at a matter of Fact but I doubt you are not so at a matter of Law Upon that we came to some high Words about that and other things and among the rest of the Discourse he said The Duke of YORK was a Traytor Upon that I said to him Doctor you lie under a great Error in that I suppose by mistaking a Statute made against Popery says he No matter for that I say he is a Traytor Then there were some other Discourses happened afterwards and I began to reply and growing both of us pretty warm the Doctor called to his two Men his Mirmydons that used to be always with him and follow him up and down said I to him Nay Doctor you need not call your Men to your Assistance there is no Body here will hurt you Do you think the Bishop of Ely's Table is not a Protection good enough for any Body that comes here Lord Chief Justice Where was this Sir pray do you say Mr. Whaley At the Bishop of Ely's Table Lord Chief Justice Was the Bishop there then Mr. Whaley He was at the Table but at a great distance from us the Doctor and I sate at the lower end of the Table Afterwards I begg'd the Bishop of Ely's pardon for being so hot and loud at his Table says the Bishop to me I thank you kindly for it none of us dare talk with him Lord Chief Justice And this you say was at Dinner after the Sacrament was over Mr. Whaley Yes it was so Mr. North. Then swear Edward Johnson which was done Mr. Att. Gen. Mr. Johnson pray will you give the Court and Jury an account what Discourse you have heard from the Defendant Mr. Otes against the Plaintiff Mr. Johnson Upon the Three and twentieth of August 1680. I met Dr. Otes and said Good morrow Doctor all things will go well now Lord Chief Justice You mean him they call Dr. Otes I suppose Mr. Johnson Yes they used to call him so said I Good morrow Doctor all things will go well now for there is a Parliament to meet in a little time No said he not till YORK is either Banished or Hanged but of the two Hanging is the fittest for him Said I do not talk so Doctor Says he
out and desired to know what he intended to do whether he would plead or no. Otes asked him If he were the Duke's Attorney He answered him Yes Says he I do not value the Duke nor his Attorney neither I will plead as I shall see cause according to Law I declare I neither love the Duke nor fear him And so turned his back and was going away and comes up again and says to him It may be I may be in for One hundred thousand Pounds here but if ever a Parliament sit I do not question but to have some Body else in my place Mr. Swift asked him to explain himself who he meant says he Do you come to Trapan me and away he went Mr. Att. Gen. My Lord we have now done if the Jury please to consider of it Lord Chief Justice Is there any Body here for Mr. Otes to offer any thing to lessen the Damages To which No Body answered Then Gentlemen of the Jury your Business now is to enquire what Damages you think fit to assess to his ROYAL HIIGHNESS by reason of the speaking of the Words mentioned in the Declaration there being in this Action Judgment by Default obtained by his ROYAL HIGHNESS and you have nothing now to do but only to assess to the Plaintiff such Damages as you shall think fit Now Gentlemen though the acknowledgment of this Judgment for so it is in effect it being by Default be a sufficient Confession of the Words being spoken as they are laid in the Declaration yet they have given you Proof of the very Words The Declaration is in an Action grounded upon the Statute De SCANDALIS MAGNATUM taking notice that His Royal Highness is a great Peer of this Kingdom and His Majestie 's only Brother and that Oates the Defendant knowing him to be so to bring him under Reproach and Calumny and to cause Discord to arise between the King and him and between him and other Great Men did speak the words laid in the Declaration which you have heard read and which are these The first are This Letter Oates having a Letter in his Hand cost Me Nine-pence and might have been brought for a Penny I know no Body is the better for it but that Traitor JAMES Duke of YORK This is laid over again with a very little variation This Letter cost Me Nine-pence and might have been afforded for a Penny I know no Body is the better for it but that Traitor JAMES Duke of YORK which are words of the same Sound and to the same purpose with the former they differ only in some minute Circumstances a word or so but import the same thing The next words are these The Duke of YORK is a Traitor and these words too are laid two several ways differing but in very small Circumstances Is a Traitor and Was a Traitor the Substance of the words is the same Now I say Gentlemen Though it is not your Business to enquire whether or no Oates spoke these words for by letting Judgment go against him by Default he doth in Law confess the words but you are to enquire what Damages may be fit to be given to the Plaintiff by reason of these words yet in as much as this Case is a Case of an extraordinary Nature Weight and Moment having relation to so great a Prince His Royal Highness the King 's only Brother requires this extraordinary Solemnity it having not been usual heretofore that is to have Writs of Enquiry executed at the Bar. But the Occasion is extraordinary such as has not happened before this Age this Corrupt Age this Profligate Age wherein we live and wherein common ordinary Fellows the meer Scum and Scoundrels of the Factious Party have taken a Liberty to reproach and calumniate Magistracy and Government and the greatest Personages concerned in it not sparing even Majesty it self nor Him who is next in Degree to His Sacred Person His onely Dear and Royal Brother And therefore as the Case is extraordinary in its Nature so ought the Example of it to be made as Publick as can be in order to satisfie all People what a sort of Fellow this Defendant is who has been so much adored and looked upon with an Eye of Admiration courted with so wonderful an Affection and so I had almost said Hosanna'd among People that have been Factious and Tumultuous to the Government Such as he ought to be made Publick Examples of and therefore the King's Counsel have desired that this Cause might be canvased here at the Bar and the Defendant as he has made himself Eminent for some particular Qualifications might be made a Publick Example for this Offence Thus this Writ comes to be executed here Now though the Words laid in this Declaration are words that do import in themselves so much Scandal and Reproach so much Malice and Venom that they need no Aggravation besides themselves and his suffering it to go by Default shews they are no way to be extenuated but are thereby acknowledged Yet however to satisfie all People that desire or have any inclination to be satisfied that this Prosecution is highly reasonable nay absolutely Necessary they come here and give you an Account that these in the Declaration are but a small Part of the Scandalous and Malicious words that the Defendant useth concerning the Plaintiff And indeed it doth plainly appear that the Malice of the Defendant is attended with all the most Unchristian and Uncharitable as well as Disloyal and Disobedient Circumstances that any thing can be with design to Traduce and Disparage a Subject so Loyal and a Person so Great and Illustrious as His Royal Highness As to the first words you have the first Witness Mr. Smith and he gives you this Account He was in a Coffee-House where he met the Defendant Oates and the Defendant in a Vain-glorious huffing sort of manner takes occasion though none was offer'd him by any thing spoken to him by any Body but only on set purpose to express his Malice and Venom against the Plaintiff He takes up a Letter that it seems came to him by the Post and to gratifie his own malicious Inclination and to give it vent he Proclaims This Letter cost Me Nine-pence it might have been brought or afforded for a Penny and I know no Body is the better for it but that Traitor JAMES Duke of YORK So you see Gentlemen he takes hold of every little Occasion if he can but happen upon an Opportunity such as this was in an open Coffee-House to reek his Malice upon His Royal Highness And sure there can be no greater imputation of Scandal brought upon any Man than this upon the Plaintiff That the first and greatest Subject of the King of England's should be taxed with the greatest Crime in the Law Disloyalty and Treason to his Soveraign And so at once not only chargeth him with being Perfidious to his only Brother against that Affection which by Nature he is