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
obliged to pay him and which all that know any thing cannot but observe to have always been extraordinary but also touches that which is much dearer to him than his Life his Honor by charging him with the foulest of Crimes Treason and breach of his Allegiance which as a Subject he owes to his Soveraign And thus besides the Defendant's Confession by this Judgment you have the very words proved that are in the Declaration The next Witness is one Mr. Whaley and he gives you an Account of another Passage which I cannot but take notice of by the way to shew you what a wonderful Christian Temper this Man is endued with Mr. Whaley says That being at the Bishop of Ely's House upon a Publick Festival either of Easter or Whitsontide and he is sure it was one of those two Because says he I never use to receive the Sacrament in London but upon one of those two days and therefore I take it upon me to say it was one of those two days that I heard these words Oates having it seems received the Holy Sacrament at the Bishop of Ely's Chappel with Mr. Whaley that day When a Body would have thought that if Mr. Oates would have been believed to be so Hearty and Pious a Protestant as he pretends to be he should have remember'd that he ought according to the Protestant Doctrine to have left behind him at his approach to the Altar all Malice and Rancour and ill Will and Hatred to every Body But you see what kind of Deportment his was For after such time as he had been at the Sacrament he takes occasion without any Provocation to fall foul immediately upon his Royal Highness giving him the Name of a Profligate Wretch and then particularly he comes to say The Duke of YORK was a Traitor This Gentleman being concerned as every Honest and Loyal Man ought to be and I hope every good Subject is and ever will be to hear so great a Prince the King 's onely Brother so traduced and vilified reproved him for it but so far was he from taking the Correction due to his Extravagant Tongue in a becoming manner that he presently as the Gentleman Phraseth it calls for his Myrmidons two Fellows that he had along with him to come to him upon which the Gentleman was pleased to say to him Nay Good Mr. Oates you need not be in so very much fear of your self as to call for your Men no Body here intends you any harm Nay certainly Mr. Oates did apprehend himself to be secure from all manner of Correction or he would never have been so Impudent to speak such words But you will no doubt take notice as all Men cannot but do of what an excellent Gospel Spirit what a delicate Christian temper the Man is of after the receiving the Sacrament that very Morning to come and belch out such extravagant words of Calumny and Reproach And it seems this Person had obtained to make such a wonderful Figure in the World that every Body was afraid to speak to him for you hear what the Witness says when he came to beg the Bishop of Ely's Pardon for being so loud and hot at his Table the Bishop gave him Thanks for it and told him None of us dare speak to him Such a Considerable Man hath he been that he might rail against the King and the Duke the Government without Controul He was got into such a Post that no body durst meddle with him but he must have liberty to say any thing of any Body To what an height of Corruption were we grown that we could suffer such a Fellow's Insolence at which no man living that has any spark of Modesty or Loyalty left in him but must Blush and Tremble Then they produce to you one Mr. Johnson who gives you an Account that after some Discourse between him and the Defendant Oates about the Duke of YORK he immediately told Johnson That the DUKE was either to be Hanged or Banished it seems he was so Ill a Man in his Eye but of the two Hanging was the fitter for him So the Dr. sheweth what a wonderful Kindness and Affection he has for the Duke and what thoughts he has of his great Deserâ—s Mr. Bowring is the next Witness and he comes and tells you That the Dr. could not be prevailed with to Dine with the Gentlemen of the Parish of Foster Lane because some of them had dined with the Duke which he calls Dining with the Devil It seems he made as though he would Preach there to them he got up into the Pulpit and took a Text and pretended to Preach and if he would have Preached according to the Duty of a Church of England Divine he was by that to have Preached not only Obedience and Submission to Authority but Respect to Superiors and Charity among all Subjects towards one another and if he did Preach it it was worse in him not to Practice it But you see after he had performed his painful laborious Preachment after he had taken such a wonderful deal of Pains as no doubt he did in instructing his Auditors what his Language is in answer to a Civil Invitation to Dinner by the Church-Wardens Have any of you Dined with YORK at the City Feasts as they not answering but being silently amazed at the impertinent Impudence of the Question why truly he would not Dine with those that had dined with the Devil It seems his Royal Highness had been pleased to Honor some Societies of Loyal Men in the City of London with his Company at some Entertainments they made and that is a great Offence to the Defendant and as for those that had received that Royal Favour from His Highness he takes notice of them as such whom he would neither Eat nor Drink with for truly they had eaten and drunk with the Devil but immediately the Doctor in his great Zeal and wonderful concern for the Protestant Reliligion broke up from the Company would neither Eat nor Drink with them but chose rather to Dine at a private Brasier's by London-Wall a properer place in good truth for him than any such Conversation they offer'd him Then further to shew what mean Thoughts he had of the Plaintiff Mr. Fairfax he comes and testifies That there being some talk of a Presentment or Indictment against the Duke of YORK by the Grand Jury here but that meeting with a Disappointment he met Oates and asked him What he would do for says he now you are Non-suited that is you have happened not to obtain the End that you designed Oh says Oates No matter for that that is all one we will at him next Sessions and for my part I will have no more regard to him than I would to a Scavenger Nay and because they should see the very utmost of his Malice and the low Thoughts he had of his Royal Highness as if it had not been Malicious enough to have compared him