the Noise of them in your several Countries and God be thanked they were but Noise without any worse Effects To cure the Distempers and compose the differing Minds that are yet amongst us I set forth my Declaration of the 26th of December In which you may see I am willing to set Bounds to the Hopes of some and to the Fears of others of which when you shall have examined well the Grounds I doubt not but I shall have your Concurrence therein The truth is I am in my Nature an Enemy to all Severity for Religion and Conscience how mistaken soever it be when it extends to Capital and Sanguinary Punishments which I am told were began in Popish Times Therefore when I say this I hope I â—…hall not need to warn any here not to inferr from thence that I mean to favour Popery I must confess to you there are many of that Profession who having served my Father and my self very well may fairly hope for some part in that Indulgence I would willingly afford to others who dissent from us But let me explain my self lest some mistake me herein as I heard they did in my Declaration I am far from meaning by this a Toleration or Qualifying them thereby to hold any Offices or Places of Trust in the Government Nay further I desire some Laws may be made to hinder the Growth and Progress of their Doctrine I hope you have all so good an Opinion of my Zeal for the Protestant Religion as I need not tell you I will not yield to any therein not to the Bishops themselves nor in my liking the Uniformity of it as it is now established which being the Standard of our Religion must be kept pure and uncorrupted free from all other Mixtures And yet if the Dissenters will demcan themselves peaceably and modestly under the Government I could heartily wish I had such a Power of Indulgence to use upon Occasion Sir Geo. Treby Pray Sir read that out distinctly Clerk reads I could heartily wish I had such a Power of indulgence to use upon Occasion as might not needlesly force them out of the Kingdom or staying here give them Cause to conspire against the peace of it My Lords and Gentlemen It would look like Flattering in me to tell you in what degree I am confident of your Wisdom and Affection in all things that relate to the Greatness and Prosperity of the Kingdom If you consider well what is best for us all I dare say we shall not disagree I have no more to say to you at present but once again to bid you heartily welcome Mr. Finch The next thing we shall shew you is that after the King had made this Speech and wished he had such a Power of Indulgence to use upon Occasion there was a Bill in the House of Lords brought in to enable the King to dispense with several Laws We shall shew you the Journal where it was Read and Committed but further than that it went not L. C. I. What Use do you make of this Mr. Finch Sir Rob. Sawyer You may easily apprehend the Use we shall make of it The King in his Speech says He wish'd he had such a Power the House of Lords thought he had not and therefore they order'd a Bill to be brought in to enable him Read the Journal of the Lords of the 13th of March 1662. Clerk reads Die Veneris XIII o die Martii 1662. After some Debate whether the House should be put into a Grand Committee for the further Debate of the Bill concerning His Majesty's Power in Ecclesiastical Affairs it was put to the Question viz. As many of your Lordships as would have this House adjourned and put into a Committee to consider of the said Bill say Content others Not Content Passed in the Affirmative And then the Lord Chamberlain of the Houshold was directed to take the Chair as formerly which he did accordingly And after Debate the House was resumed after the Grand Committee had appointed a Sub-Committee touching the said Bill Sir Rob. Sawyer This is all in the Journal of the House of Lords about this Matter We will now shew you the Bill it self Clerk reads An Act concerning His Majesty's Power in Ecclesiastical Affairs WHereas divers of His Majesty's Subjects through Error of Judgment and mis-guided Consciences whereunto the Licentiousness of these late unhappy Times have much contributed do not conform themselves to the Order of Divine Worship and Service established by Law and although His Majesty and both Houses of Parliament are fully satisfied that those Scruples of Conscience from whence this Nonconformity ariseth are ill grounded and that the Government of the Church with the Service thereof as now established is the best that is any where extant and most effectual to the Preservation of the Protestant Religion Yet hoping that Clemency and Indulgence may in time wear out those Prejudices and reduce the Dissenters to the Unity of the Church and considering that this Indulgence how necessary soevever cannot be dispensed by any certain Rule but must vary according to the Circumstances of Time and the Temper and Principles of those to whom it is to be granted and His Majesty being the best Judge when and to whom this Indulgence is to be dispensed or as may be most consistent with the publick Peace and without just Cause of Offence to others and to the end His Majesty may be enabled to exercise it with universal Satisfaction Be it Enacted by the King 's Most Excellent Majesty by Advice and with the Consent of the Lords Spiritual and Temporal and Commons in this present Parliament assembled and by the Authority thereof That the King's Majesty may by Letters Patents under the Great Seal or by such other Ways as to His Majesty shall seem meet dispense with one Act or Law made the last Session of this present Parliament Intituled An Act for the Uniformity of Publick Prayers and Administration of the Sacraments and other Rites and Ceremonies and for Establishing the Form of Making and Ordaining and Consecrating Bishops Priests and Deueotis in the Church of England and with any other Laws or Statutes concerning the same or requiring Oaths or Subscriptions or which do enjoin Conformity to the Order Discipline and Worship established in this Church and the Penalties in the said Laws imposed or any of them And may grant â—…fences to such of His Majesty's Subjects of the Protestant-Religion of whose inoffensive and peaceable Disposition His Majesty shall be perswaded to enjoy and use the Exercise of their Religion and Worship though differing from the publick Rule the said Laws and Statutes or any Disabilities Incapacities or Penalties in them or any of them contained or any Matter or Thing to the contrary thereof notwithstanding Provided always and be it Enacted That no such Indulgence Licence or Dispensation hereby to be granted shall extend or be construed to extend to the Tolerating or Permitting the Use or
Ordered that upon Monday morning next this House will debate the whole Matter of his Majesties Speech and these Papers and to consider the Points of Priviledg and what else may arise thereupon The Lords that were appointed to attend his Majesty return with this Answer That his Majesty has appointed this Afternoon at five of the Clock for this House to wait upon him in the Banquetting-house at Whitehall Ordered that all the Judges now in Town shall attend this House on Monday morning next Sir Rob. Sawyer The 3d of March 1672. is the next Clerk reads Die Laine 3. die Marcil 1672. The Lord Chancellor reported That the whole House on Saturday last waited upon his Majesty at Whitehall and presented the humble Address of this House and his Majesty was pleased to return this Answer My Lords It ake this Address of yours very kindly I will always be very affectionate to you â—…nd expect you should stand by me as I will always by you Then the House took into Consideration the whole Matter of his Majesties Speech on Saturday and the three Papers which his Majesty acquainted this House withal and all the said Papers in their order were read and after a long debate the Question being put Whether this House shall in the first place enter into Consideration of giving Advice to his Majesty It was resolved in the Affirmative It is ordered that this Business shall be taken into Consideration to morrow Morning at nine of the Clock the first Business Ordered that the Judges now in Town shall attend to morrow Morning Sir Rob. Sawyer The 4th of March 1672. Clerk reads Next The House took into Consideration the Advice to be given to his Majesty concerning the Addresses made to him from the House of Commons The Addresses of the House of Commons and his Majesties Answer were read and after a long debate the Question being put Whether the King's Answer to the House of Commons in referring the Points now controverted to a Parliamentary way by Bill is good and gracious that being a proper and natural Course for Satisfaction therein It was resolved in the Affirmative Sir Rob. Saywer The 8th of March 1672. Clerk reads Die Sabbati 80 die Marcii 1672. His Majesty in his Royal Throne adorned with his Crown and Regal Ornaments commanded the Gentleman Usher of the Black Rod to give notice to the House of Commons that they attend his Majesty presently The Commons being come with their Speaker his Majesty made this short Speech following My Lords and Gentlemen Yesterday you presented me an Address as the best means for the satisfying and composing the Minds of my Subjects to which I freely and readily agreed and I shall take care to see it performed accordingly I hope on the other side you Gentlemen of the House of Commons will do your part for I must put you in mind it is near five Weeks since I demanded a Supply and what you Voted unanimously upon it did both give Life to my Affairs at Home and dishearten mine Enemies abroad but the seeming delay it hath met withal since hath made them to take new Courage and they are now preparing for this next Summer a greater Fleet as they say than ever they have had yet so that if the Supply be not very speedily dispatcht it will be altogether ineffectual and the Safety Honour and Interest of England must of necessity be exposed Pray lay this to heart and let not the Fears and Jealousies of some draw an inevitable Ruin upon us all My Lords and Gentlemen If there be any Scruple remaining with you concerning the Suspension of Penal Laws I here faithfully Promise you That what has been done in that particular shall not for the future be drawn either into Consequence or Example And as I daily expect from you a Bill for my Supply so I assure you I shall as willingly receive and pass any other you shall offer me that may tend to the giving you satisfaction in all your just Grievances Next my Lord Chancellor reported That both Houses waited upon the King yesterday and presented him with the Address against the growth of Popery and his Majesty has been pleased to return this Answer My Lords and Gentlemen I do heartily agree with you in your Address and shall give speedy Order to have it put in Execution there is one part to which I believe it is not your Intention that it should extend for I can scarce say those are in my pay that are presently to be imployed abroad but as for all other parts I shall take care it shall be done as you desire After which the Lord Chancellor said he had somewhat more to impart to the House by the Kings Command which was That his Majesty last night having spoken with several Members of both Houses found some dissatisfaction remaining concerning his Answer to their Address in the particular of the Officers to be employed abroad of which number he had five or six that were of the best Officers of France and Flanders and being his â—…wn Subjects he had been very sollicitous to get but if that bred any umbrage the King commanded him to let them know that he resolves to give both his Houses full satisfaction to their desires There was another particular that the Lord Chancellor said he thought fit to acquaint them with which though it was by his Majesty's leave yet it was not by his Command however he thought it his duty to acquaint the House with it Mr. Secretary Coventry intending to acquaint the House of Commons with the same That his Majesty had the last night in pursuance of what he then intended and declared this morning concerning the suspension of Penal Laws not being for the future drawn either into Consequence or Example caused the Original Declaration under the Great Seal to be cancelled in his presence whereof himself and several other Lords of the Council were Witnesses Sir Rob. Sawyer Turn to the 10th of March 1672. Clerk reads Die Lune decimo die Marcil 1672. Ordered That what my Lord Chancellor said on Saturday last concerning his Majesty's causing the vacating his Indulgence under the Great Seal of Enggland shall be entred into the Journal-Book of this House as on Saturday last Sir Rob. Sawyer We shall now come to that which past in the Parliament in 1685. Read the 9th of November 1685. The Journal of the Lords 1685. put in Clerk Reads His Majesty being on his Royal Throne adorned with his Regal Robes and Crown the Lords being in their Robes also commanded the Gentleman Usher to give notice to the House of Commons that they immediately attend his Majesty who being come his Majesty made the following Speech My Lords and Gentlemen After the Storm that seemed to be coming upon us when we parted last I am glad to meet you all again in so great peace and quietness God Almighty be praised by whose blessing that Rebellion was suppressed but
I agree with them it is not For if we had brought three or four Men that had seen them Write this very Paper and put their Names to it that had been a stronger Evidence than this that we have given but whether we do not give such a sort of Evidence as may induce the Jury to belive that this is their Paper and their Hands to it we submit they say This is such a method as never was taken but I admire that that should be said by Men of their Experience and Knowledge in the Law for is there any thing more usual or any other course taken for the proof of Hands than for a Wittness to say He knows the Hand of the Party very well for he has often seen his Hand-writing or received Lettters from him and if you shew him the thing that you would prove to be his Hand and he says I do believe this to be his Hand for this Reason Because I have had other things of his Writing Certainly in the Experience of any Man that has practised this is an Evidence that is given every day and allowed for Evidence For the Case of Mr. Sidney which your Lordship has heard mentioned it is certainly very opposite to this purpose it is insisted upon and pretended That that was Evidence because it was found in his Study but without all doubt that would not be the reason for may not a Book of another Man 's Writing be found in my Study and he insisted upon it in his own Defence but the Answer was That it should be left as the Question Whether the Jury would believe it upon the Evidence that was given of its being his own Hand-writing And so in this Case though it be not so strong Evidence as if we had brought those that had seen them Write it yet Evidence it is and whether it be sufficient to satisfie the Jury may be a Question but no Question it is good Evidence in Law. Mr. Sol. Gen. It is a wonderful thing they say That such Evidence should be offered but truly my Lord it is a much stranger thing to hear Mr. Serj. Pemberton say It was never done before and then to make that Remark to your Lordship upon the Case of Sidney which I 'le put to your Lordship and the Court as a Case and let him contradict me if he can and then we shall see how far it goes Sidney was Indicted for High Treason and the Treason insisted upon was A Writing supposed to be his it being found in his Study the Question was Whether it was his Hand-writing or no there was no positive Evidence that is was his Hand-writing there was no Evidence produced that proved it to be his Hand-writing for there was no one that Swore That they they saw him Write it there was nothing proved but the similitude of Hands Ay but says Mr. Serj. Pemberton It was found in his Study will Mr. Serj. Pemberton be content that all the Libels that are found in his Study shall for that reason be adjudged to be Libels to be his Hand-writing and he to be a Libeller for them I think he will make a severe Declamation against that and he would have very good reason for it Certainly that which was Evidence in one Man's Case will be Evidence in another God forbid there should be any such distinction in Law and therefore I conclude that this is good Evidence Mr. Serj. Pemberton The Court went upon this That it was found in his Study and compared with Letters and Bills of Exchange produced in Court which were Sworn to be of his Hand-writing Mr. Sol. Gen. My Lord I was by all the time for I was ordered to attend him in the Tower and therefore I can tell what passed as well as any Body My Lord they proved no more as to that Libel but only by Comparison of Hands they had no other proof in that Case but by comparing the Hand-writing and that was insisted upon to be a mighty fallible thing That which they would have for us to compare Paper with Paper it is true would make the proof somewhat stronger if we could in such a Case as this be able to produce such Evidence but I appeal to your Lordship and shall leave it to the Jury to consider which is better Evidence these Men that have been produced that have been Conversant with these Lords and acquainted with their Hand-writing and who as your Lordship sees are not willing Men to give Evidence they avoid it as much as they can and they Swear it all to be the Hand-writing of the Archbishop of Canterbury as they believe which is as far as any Man can Swear One says the whole Body of the Paper is my Lord of Canterbury's Hand and he knows it very well so that we are not upon a single Name but a whole Paper that contains many Lines and this is as much as can be proved by any one that did not see the thing Written Then my Lord for the rest of the Company the Evidence is not so strong against every one of them as it is against my Lord Archbishop but is strong enough certainly to Convict them of what we accuse them of and pray my Lord what was the Objection in Sidney's Case but what has been mentioned here That any Man's Hand might be Counterfeited I remember in that Case there was one Mr. Wharton a young Gentleman then in the Court that undertook to the Court That he would Counterfeit that Hand presently and he that was to Swear the Comparison should not know which was the one and which was the other which certainly was a stronger Case than this And I see some of the Learned Gentlemen that are now standing at the Bar who pressed this matter very hard against Mr. Sidney and Mr. Sidney lost his Life upon that Comparison of Hands though Mr. Wharton did Testifie how easie a matter it was to have a Man's Hand Counterfeited and we all know was a Man of Value and Quality so there is a President for Mr. Serj. Pemberton that never heard of this Law before They say the proving of similitude of Hands is no Evidence unless you prove the actual Writing what a condition then will England be in when Witnesses are Dead Is it not the most common practice that can be to produce Witnesses to prove such Men are Dead whose Names are set as Witnesses to Deeds and they Swear They believe it to be the Hand-Writing of those Witnesses Can there be any greater Evidence of such a Case unless it be the confession of the Party himself My Lord we are now only upon reading this Paper We have been heard and they have been heard now we pray the Paper may be Read. Mr. Recorder We pray it may be Read. Mr. Serj. Levinz If your Lordship please Mr. Sol. Gen. We are not to be replied upon Mr. Serjeant L. C. I. You have spoke Brother Levinz and you have
intrusted in him to the Peace and Establishment of the Church of England and the ease of all his Subjects in general Neither does he pretend to the Right of Suspending any Laws wherein the Properties Rights or Liberties of any of his Subjects are concerned nor to alter any thing in the established Doctrine or Discipline of the Church of England But his only design in this was to take off the Penalties the Statutes inflicted upon Dissenters which he believes when well considered of you your selves would not wish executed according to the Rigour and Letter of the Law neither hath he done this with any thought of avoiding or precluding the Advice of his Parliament and if any Bill shall be offered which shall appear more proper to attain the aforesaid Ends and secure the Peace of the Church and Kingdom when tendred in due manner to him he will shew how readily he will Concur in all ways that shall appear good for the Kingdom Sir Rob. Sawyer Turn to the 26th of February 1672. Clerk read Die Mercurii xxij February 1672. Mr. Powle Reports from the Committee appointed to consider of an Answer to return to his Majesties last Message upon the debate of the House an Answer agreed by the Committee and drawn up and put into Writing which he read in his place and then delivered the same in at the Clerks Table where it was twice read and is as followeth viz. Most Gracious Sovereign WE your Majesties most Humble and Loyal Subjects the Knights Citizens and Burgesses in this present Parliament Assembled do render to your most Sacred Majesty our most dutiful Thanks for that to our unspeakable Comfort your Majesty has been pleased so often to reiterate unto us those gracious Promises and Assurances of maintaining the Religion now Established and the Liberties and Properties of your People and we do not in the least Measure doubt but that your Majesty had the same gracious Intention in giving Satisfaction to your Subjects by your Answer to our last Petition and Address Yet upon a serious Consideration thereof We find that the said Answer is not sufficient to clear the Apprehensions that may justly remain in the minds of your People by your Majesties having claimed a Power to suspend Penal Statutes in Matters Ecclesiastical and which your Majesty does still seem to assert in the said Answer to be intrusted in the Crown and never questioned in the Reigns of any of your Ancestors Wherein we humbly conceive your Majesty has been very much Misinformed Since no such Power ever was claimed or exercised by any of your Majesties Predâ—…ssors and if it should be admitted might tend to the interrupting the free Course of the Laws and altering the Legislative Power which hath always been acknowledged to reside in your Majesty and your two Houses of Parliament We therefore with an unanimous Consent become again most humble Suiters unto your Sacred Majesty That you would be pleased to give us a full and satisfactory Answer to our said Petition and Address and that your Majesty would take such effectual order that the Proceedings in this Matter may not for the future be drawn into Consequence or Example The Answer to his Majesties Message was again read by Paragraphs and the several Paragraphs to the last were upon the question severally agreed The last Paragraph being read and the Question being put that the Word unanimous should stand in the Paragraph The House divided The Noes go out Tellers Lord St. Iohn Mr. Vaughan for the Yeas 180. Sir Richard Temple Sir Philip Howard for the Noes 77. And so it was resolved in the Affirmative The Question being put to agree to the Paragraph it was resolved in the Affirmative Resolved c. That the whole Address be agreed to as it was brought in by the Committee Sir Rob. Sawyer Now turn to the Lords Journal and there your Lordship will see that the King does Communicate this Address to the Lords and desires their Advice Read the 1st of March 1672. Clerk reads Die Sabbati primo die Marcii 1672. His Majesty this Day made a short Speech as follows My Lords You know that at the Opening of this Session I spoke here to your Satisfaction it has notwithstanding begotten a greater disquiet in the House of Commons than I could have imagined I received an Address from them which I looked not for and I made them an Answer that ought to have contented them but on the contrary they have made me a Reply of such a nature that I cannot think fit to proceed any further in this Matter without your Advice I have commanded the Chancellor to acquaint you with all the Transactions wherein you will find both me and your selves highly concerned I am sensible for what relates to me and I assure you my Lords I am not less so for the Priviledg and the Honour of this House Afterwards the Lord Chancellor read the several Papers of Addresses of the House of Commons and his Majesties Answer thereunto and opened his Majesties proceedings upon them The Address of the House of Commons was read Sir Rob. Sawyer Pass over that you have read it already Clerk reads The next his Majesties Answer to the Address of the House of Commons was read as follows Sir Rob. Sawyer That hath been read too Clerk reads Then was read the Reply of the House of Commons to his Majesties Answer as followeth Mr. Finch You have read that likewise Clerk reads Upon this it is ordered that the Lord Treasurer Duke of Buckingham Earl of Bridgwater Earl of Northampton Earl of Bristol Earl of Berks Earl of Bullingbrook and the Earl of Anglesy do forthwith withdraw and consider what humble Thanks is fit to be given to his Majesty for his great Favour in communicating this Business to this House and report the same And accordingly the said Lords Committees did withdraw themselves for that purpose The Lords being returned the Duke of Buckingham reported what the Committee had prepared to present to his Majesty by way of Thanks which was read as followeth We the Lords Spiritual and Temporal in Parliament assembled do unanimously present to your Sacred Majesty Our most humble Thanks for having been pleased to Communicate to us what has passed between your Majesty and the House of Commons whereby you have graciously offered us the means of shewing our Duty to your Majesty and of asserting the Ancient Just Rights and Priviledges of the House of Peers The Question being put whether to agree with the Committee It was resolved in the Affirmative Ordered that his Majesty be desired that his Speech and the Papers read this day may be entred into the Journal Book of this House The Lord Treasurer the Duke of Buckingham and the Lord Chamberlain are appointed to attend his Majesty presently to know his pleasure what time and place this whole House shall wait upon him to present the humble Thanks of this House for his great Favour shewed this day
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 dispeâ—…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 Râ—…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
and a Man must not be his own Judg nor his own Carver nor must every Man create Difficulties of his own nor set upon Petitioning in this sort But there I lay my Foundation That in such a matter as this there ought to have been the Impeachment of the Commons in Parliament before these Lords could do any thing and I know nothing can be said for the Bishops more than this That they were under an Anathema under the Curse that Sir Robert Sawyer speaks of and for fear of that they took this Irregular Course But some would say Better fall into the hands of God than of Men some would say so I say I know not what they would say but these being the Methods that these Lords should have taken they should have pursued that Method the Law should have carved out their Relief and Remedy for them but they were for going by a new Fancy of their Own. My Lord the Law continued thus and was practised so till the 3. Hen. 7. where the Grievance was found that Offences in the Intervals of Parliament could not be well punished and then comes the Statute that sets up the Court of Star-Chamber and there Men were often brought to Judgment and Punishment for their Sins and though very great Power was given them yet they arrogated to themselves a greater and therefore that Court is abolished by the Statute of the 15th Car. 1. and what is the reason of abolishing that Statute Because the Star-Chamber did not keep within their bounds that the Law set them but assumed to themselves a larger Power than the Law would allow and grew very Exorbitant and very Grievous to the Subject And another reason was which the Statute of 15th Car. 1. founded it self upon because there was nothing that was brought in Judgment before that Court but might be relieved and remedied in the oridinary methods of Justice in the Courts of Westminster Hall So that upon those two Considerations because that Course was exorbitant and because all the Sins and Misdemeanours that were punished there might be punished in an ordinary way of Law in another Court and therefore there was no need of that Court and so it was abolished and the Subject was pretty safe If there was a Crime committed here a Man might come properly before your Lordship into this Court and have it punished My Lord they find fault with the Words in the Information and they say why are these Words put in Seditious Malicious If the matter be Libellous and Seditious we may Lawfully say it and it is no more than the Law speaks it results out of the Matter it self and if it be a Libellous Paper the Law says it is Maliciously and Seditiously done and these Gentlemen need not quarrel with us for so are all the Informations in all times past and 't is no more than the Vi Armis which is Common Form. It may be said How can the publishing of a Libel be said to be done Vi Armis That is only a Supposition of Law and they may as well Object to the conclusion of the Information that it was Contra Coronam Dignitatem Domini Regis if it be an Illegal thing or a Libel these are necessary Consequences it is no more than the speaking of the Law upon the Fact. But my Lord let us a little consider whether this Matter were Warrantable and whether they had any Warrant to do what was done they pretend it was done upon this Account That the King had set forth a Declaration and had Ordered them to Read it which to excuse themselves from they make this Petition or this Libel call it what you will and they use this as the main Argument That they say the King has done Illegally and they tell the King plainly so that it is Illegal for they take notice of this Declaration and say it is Illegal because it is contrary to the Declarations of Parliament in 1662 1672 and 1685. Pray my Lord let us consider a little whether there be any Declaration in Parliament that they have given Evidence of Have they read any Declaration of the Parliament in 1662 What is a Declaration in Parliament but a Bill that is passed by the King Lords and Commons That we know to be the meaning and no other if it pass the Commons it is no Declaration in Parliament nay if it pass the Lords and Commons it is not a Declaration in Parliament except it also pass the King all these things are Nullities and the Law takes no notice of them we have it in our Books over and over and no Court ought to suffer such Evidence to be given I know these Gentlemen are very well acquainted with the Authority in Fitz-Herbert's Title Parliament there was an Act that was said to be by the King and the Lords but because the Commons did not agree to it it is declared and adjudged to be a Nullity and the Court would take no notice of it and how can any Man call that a Declaration in Parliament which is only a Vote of the House of Commons or of the Lords No sure that is one of the Heads I go upon It 's not a Declaration in Parliament unless it be by Act of Parliament Indeed my Lord there is another sort of a Declaration in Parliament before the Lords as they are a Court of Judicature and that is a fair Declaration too for if any thing comes Judicially before the Lords either by Writ of Error or by natural Appeal from any of the other Courts or by Adjournment and there be any Judgment given That is a Declaration in Parliament and may be fairly so called So likewise there is another Judicial Declaration which is when any thing comes before the Lords Judicially upon an Impeachment of the Commons and they give Judgment upon that Impeachment That is a Declaration in Parliament But to say that there is any other Declaration in Parliament is to say more than these Gentlemen can make out if they will shew me any such I will submit to them and not speak a Word against my Lords the Bishops but if these Learned Gentlemen cannot shew me any such then they have not said that was true in this Petition that it was so and so declared in Parliament For let us consider what there is in this Case upon this Evidence for that in 1662. is only a Vote and an Opinion of the House of Commons and I always understood and have been told so by some of the Gentlemen of the other side that such a Vote signifies nothing But besides it seems to be a mistaken Address for they say in it That the Declaration in 1662. which they Address against was the first Declaration of that sort to suspend Laws without Act of Parliament and yet in the same breath they do take notice of the King's Declaration from Breda But here is a mighty Argument used from the King's Speech That
because he wished he had such a Power this must be declared in Parliament that he had no such Power Is the Speech of the Prince a Declaration in Parliament All the Speeches that were made upon the opening of the Parliament will you say they are Declarations in Parliament Then the Chancellor or the Keeper's Speech or the Lord Privy Seals must be a Declaration in Parliament Whoever speaks the Sense of the King if he does not speak that which is Law and Right is questionable for it and several have been Impeached for so doing for they look not upon it as the King's Speech except it be according to Law Nothing can turn upon the Prince but what is Legal if it be otherwise it turns upon him that speaks it I never did hear that a Speech made by the Chancellor and I will appeal to all the Lords that hear me in it was a Declaration in Parliament Then my Lord we come to the business in 1672. which with that in 1662. and that in Breda shews That this of the King 's is not such a Novelty but has been done often before In 1672. the King was in Distress for Money being intangled in a Dutch War and wanted Supply He Capitulates with his Commons you have heard it read and upon the Commons Address he asserts it to be his Right and makes his Complaint to the Lords how the Commons had used him for when he gives them a fair Answer they Reply and there are Conferences with the Lords about it but at length it all ends in a Speech by the King who comes and tells them of his present Necessitieâ—… and so he was minded to reâ—… a little at the Instigation of the Commons and he has a good Lump of Money for it Would this amount to a Declaration in Parliament Can my Lords the Bishopâ—… fancy or imagine that this is to be imposed upon the King or upon the Court for a Declaration in Parliament Then last of all for that in 1685. in this King's time What is it The Commons make an Address to the King and Complain to his Majesty of some of his Officers in his Army that might pretend to have a Dispensation something of that Nature contrary to the Test Act And what is done upon it They make their Application to the King and the King Answers them and that is all But since it is spoken of in the Court I would take notice That it is very well known by the Case of Godding and Hales the Judgment of this Court was against the Opinion of that Address But what sort of Evidence is all this Would you allow all the Addresses of the House of Commons to be Evidence Give me leave to say it my Lord If you suffer these Votes these Copies of Imperfect Bills these Addresses and Applications of one or both Houses to the King to be Evidence and Declarations in Parliament then what will become of the Bill of Exclusion Shall any Body mention that Bill of Exclusion to be a Declaration in Parliament If so then there is Declaration against Declaration the Declaration of the Commons against the Declaration of the Lords I know not what Judgment my Lords the Bishops may be of now concerning those things of Votes and Addresses being Declarations in Parliament but I am sure they have spoken against it heretofore nay I am sure some of them have Preached against it And if my Lords the Bishops have said These are Declarations in Parliament and they are not Declarations in Parliament and if they accuse the King of having done an Illegal thing because he has done that which has been declared in Parliament to be Illegal when it was never so declared then the Consequence is very plain That they are Mistaken sometimes and I suppose by this time they believe it I dare say it will not be denied me That the King may by his Prerogative Royal issue forth his Proclamation it is as essential a Prerogative as it is to give his assent to an Act of Parliament to make it a Law. And it is another Principle which I think cannot be denied That the King may make Constitutions and Orders in Matters Ecclesiastical and that these he may make out of Parliament and without the Parliament If the King may do so and these are his Prerogatives then suppose the King does issue forth his Royal Proclamation and such in effect is this Declaration under the Great Seal in a Matter Ecclesiastical by Virtue of his Prerogative Royal and this Declaration is read in the Council and published to the World and then the Bishops come and tell the King Sir you have issued out an Illegal Declaration being contrary to what has been declared in Parliament when there is no Declaration in Parliament Is not this a Diminishing the King's Power and Prerogative in issuing forth his Declaration And making Constitutions in Matters Ecclesiastical Is not this a questioning of his Prerogative Do not my Lords the Bishops in this Case raise a question between the King and the People Do not they as much as in them lyes stir up the People to Sedition For who shall be Judg between the King and the Bishops Says the King I have such a Power and Prerogative to issue forth my Royal Proclamation and to make Orders and Constitutions in Matters Ecclesiastical and that without the Parliament and out of Parliament Say my Lords the Bishops You have done so but you have no Warrant for it Says the King Every Prince has done it and I have done no more than what is my Prerogative to do But this say the Bishops is against Law. How shall this be tryed Should not the Bishops have had the Patience to have waited till a Parliament came When the King himself tells them he would have a Parliament in November at furthest L. Ch. Iust. Pray Mr. Sollicitor come close to the business for it is very late Mr. Sol. Gen. My Lord I beg your Patience you have had a great deal of Patience with them pray spare me a little I am saying when the King himself tells them that he would have a Parliament in November at furthest yet they have no Patience to stay till November but make this Application to him Is not this raising a Question upon the King's Prerogative in issuing forth Declarations and upon the King's Power and Right in Matters Ecclesiastical And when I have said this that my Lords the Bishops have so done If they have raised a Question upon the Right of the King and the Power of the King in Matters Ecclesiastical then they have stirred up Sedition That they have so done is pretty plain and for the Consequence of it I shall appeal to the Case in the 2 Cro. 2. Iac. 1. That is a plain direct Authority for me Mr. Iust. Powel Nay Mr. Sollicitor we all very well know to deny the King's Authority in Temporals and Spirituals as by Act of
in my Case and you were one of them that prosecuted me for ought I know or if you did not prosecute me you preached against me or if you did not some of your Tribe did But so my Lord it was in many other Cases within time of Memory Sir Robert Sawyer has past a Complement upon me of my great Skill in Parliament matters but truly there needs no great Skill in matters where the Law is so plain a Peer they agree may be in Prison for Treason Felony or Breach of the Peace but that Breach of the Peace I say they is where the Law requires Sureties of the Peace but is there any Certainty where Sureties of the Peace shall be required and where not Then I would put this Cafe These Lords have contrived and published a Seditious Libel against the King and His Government and whether this be not such a Breach of the Peace as will require Sureties of the peace is the Question before you And it plainly appears to be so in Sir Baptist Hick's Case in Hobbart If a man write a private Letter provoking another to fight although there be no fighting this is a Breach of the peace now a Letter can do no Wrong in that kind but as it incites and stirs up to fighting which may occasion Blood-shed and I think there cannot be a greater Breach of the peace than for a man to come to the King's Face and publish a Libel against Him and yet according to their Doctrine this man shall go away and you shall not take him up but take a Subpoena against him and wait for the delay of all the ordinary process and they tell you another thing that a Capias does not lie upon an Information against the person of a Peer and that there is no precedent of any such thing but I would pray them to remember the Case of my Lord Lovelace about some three years ago for breaking a Foot-mans Head. It seems if a man libels the King in His own presence that is not so great a matter as a little Correction to an insolent Foot-man but there he was bound in a Recognizance to appear here in this Court and accordingly he did appear and was Charged with an information and as to that precedent I do believe Sir Robert Sawyer and Mr. Finch won't contradict me this was in the first year of this King There was likewise my Lord of Pembrooke's Case who went to a disorderly House and there frighted some people and we moved the Court and had an Attachment against him for a misdemeanour and he was glad to Compound the thing or it had not ended so soon as it did and yet if a Lord comes to the King's Person and affronts Him to his very Face will not an Attachment lie against him for it Certainly it will. My Lord we have gone out of the way too much already and these Gentlemen will lead us farther but we hope your Lordships will reduce us to the methods of the Law Here is an Information which we desire may be read if they have any thing to plead to it their time for that will come after it is read if they think they have been illegally imprison'd it appears plainly upon this Return who they were that did Commit them here are a great many Noble Lords to Answer an Action of false imprisonment if these Lords think fit and may have these Learned Gentlemen that are very well able to advise them what they should do in it Sir Robert Sawyer We pray your Lordships Judgment whether the Cases put by Mr. Sollicitor are like our Case Mr. Soll. Gen. They are as like as Sir Robert Sawyer is to Mr. Attorney that was Sir Robert Sawyer Those Cases are of apparent Breaches of the peace so likewise was my Lord of Devonshire's Case but certainly that was not at all like this Mr. Finch With your Lordships Favour I would add but one Word and I would repeat nothing of what has been said all that I shall say is this There is a great deal of Difference between an Actual Breach of the Peace and that which in the bare Form of an Information is a Breach of the Peace by Construction of Law it being contra pacem Suppose it be laid that a man did vi armis speak Words will that make the Words a Breach of the peace Mr. Soll. Gen. It must be vi armis and certainly is a Breach of the peace Mr. Finch If a man write a Petition are the pen and ink that he uses the Arms Mr. Soll. Gen. My Lord I hope Mr. Finch remembers what I heard him say in Algernoon Sidney's Case scribere est agere Mr. Finch I think it is so Mr. Sollicitor but every Action is not a Breach of the peace Ld. Ch. Iust. We let my Brothers deliver their Opinions I will give you mine Mr. Iust. Allyb. The single Question now is Whether or no that which Mr. Sollicitor was pleased to name as the Crime and lay it to the Charge of my Lords the Bishops that is a seditious Libel be a Breach of the peace I do confess that there is little of Argument to be drawn from Forms of Indictments and I shall put no great stress upon the words vi â—…mit where the Fact will not come near it but if a Commitment may ensue as they seem to agree wherever surety of the peace may be required nothing seems more important to me than that surety of the peace should be required where there is any thing of Sedition in the Case and wherever there is a Seditions Act I cannot tell how to make any other Construction of it but that it is an Actual Breach of the peace that is my Opinion Mr. Iust. Powell I am of the same opinion in this point too as I was in the other point before It was a matter of great consequence I thought upon the former point but now it appears to me to be of far greater consequence than it did at first for here all the Great High and Noble Peers of England are concerned in it as to theâ—… priviledge Our Predecessors in this Court heretofore would not determine the priviledges of the Peers but left them to themselves to make what Judgment they pleased of them I think truly 't is a thing of that weight that it may be very fit for the Court to take time to consider of it and I declare for my own part I will not take upon me to deliver â—…y Opinion in a matter of this Consequence before I have Consulted all the Books that can give me any Light in the Case Mr. Iust. Allybone Brother Powell I am not determining limitting or cramping the priviledge of Peers but I am only considering whether or no a seditious Libel be a breach of the Peace 'T is agreed to be on all hands a breach of the Peace Is there any thing that will require Sureties of the Peace to be
in Parliament and particularly in the Years 1662 and 1672. and 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 God's House and in the time of his Divine Service must amount to in common and reasonable Construction In contemptum dicti Domini Regis nunc Legum hujus regni Angliae manifestum in malum exemplum omnium aliorum in tali casu delinquentium ac contra pacem dicti Domini Regis nunc Coronam Dignitatem suas c. Unde idem Atornatus dicti Domini Regis nunc generalis pro eodem Domino Rege petit advisamentum Curiae hic in praemissis debitum legis processum versus praefatos Willielmum Archiepiscopum Cantuariensem Willielmum Episcopum Asaphensem Franciscum Episcopum Eliensem Iohannem Episcopum Cicestrensem Thomam Episcopum Bathonensem Wellensem Thomam Episcopum Petriburgensem Ionathanum Episcopum Britollensem fieri ad respondendum dicto Domino Regi de in praemissis c. T. Powys W. Williams Mr. Attor Gen. My Lord we humbly pray that according to the Rules of the Court in such Cases my Lord Archbishop of Canterbury and my Lords the Bishops may Plead to the Information Mr. Solli Gen. My Lords the Bishops are here in Custody in Court upon the highest Commitment that can be in this Kingdom to wit That of the King in Council and we pray that according to the Course of the Court they may Plead to the Information presently L. Ch. Just. What does his Grace and my Lords the Bishops say to it Mr. Serj. Pemberton Will your Lordship give us leave who are of Council for his Grace my Lord of Canterbury and the rest of my Lords the Bishops to speak a word in this Matter L. Ch. Just. Ay Brother go on Mr. Serj. Pemberton That which we have to desire of your Lordship and the Court is this We have now heard this Information Read and 't is plain we could know nothing of this before the Warrant of Commitment being only in general for a Libel and this being a Case of the greatest Consequence peradventure that ever was in Westminster Hall that I think I may boldly say it is a Case of the greatest Consequence that ever was in this Court and it being a matter of this Nature that these Great and Noble Persons my Lords the Bishops are here taxed with that is for making a Seditious Libel contained in such a Petition as though it was a Libel to Petition the King We do beg this of your Lordship that it being of this great Importance to the end we may come prepared to say what we have against it We may have an Imparlance till the next Term. Mr. Finch Pray my Lord favour me with a Word on the same side for my Lords the Bishops You Lordship sees now how necessary the trouble we gave you before in making our Objections against the reading of the Information was and what the drift and aim of the Kings Councel was in the desiring the Information to be read first for now it is read What is it that they desire of your Lordships They desire that my Lord Arch Bishop and my Lords the Bishops being in Custody and brought here in Custody they may be now so Charged with this Information as to Plead presently This my Lord we oppose and with humble Submission we ought to have time to Imparle and a Copy of the Information that we may consider what we have to Plead to it for however we come here into Court whether legally or not legally yet ought we in the one and in the other Case to have time to Consider of our Defence And my Lord till of later time this Practice which the Kings Counsel now calls the Course of the Court was never used nor was any Man required to Plead immediately and my Lord if the Practice of the Court has not been anciently so as I do believe they will scarce shew it to be Ancienter than a few years last past then with humble submission though the Course of the Court have been so for some little time past yet it is not in the power of the Couâ—… as we humbly Conceive to make a Course in prejudice of all the Priviledges that the Kings Subjects are by the Antient Rules of Law intituled to they cannot make a new Law in prejudice of any Right or Priviledge which the Subject hath and call it the Course of the Court Now that this which we desire for my Lords the Bishops is the Right and Priviledge of the Subject is most manifest for there might be many Defences that a Man may have to make to an Accusation of this Nature which it is impossible for him to know at the first hearing of an Information read and yet which would be necessary for him to make use of or at least it would be impossible for him to make use of in such a manner as the Law doth allow of and require It may be the Pleas which he has to Plead may be such as that he has not time to put into form there may be Matters upon the hearing the Information read that it would be necessary for him to give answer to which he knew not of before and therefore may neither have Materials ready nor be capable of putting them if he had them ready into such Form as the Law requires They tell you on the other side that if a Man be brought into Court by Legal Process he may be Charged with any Information whatsoever that they are not tied to the Fact alleadged in the Commitment but finding the Party under a Legal Imprisonment they can exhibit an Information against him for any other Offence Then my Lord would I fain know which way any Man alive can be prepared to make his Just and Legal Defence for he knows not his Accusation for tho' he think it may be for that for which he was Committed yet it may prove otherwise and then he can be no way provided with Materials for his Defence but he must lose all Advantages which the Law gives him for his Defence My Lord if this be the course of latter times yet you will not take that to be such a Law as is binding to all future times and we are sure the King's Counsel cannot shew that this was the Ancient Practice for that was quite otherwise L. C. Iust. Mr. Finch you were not here I suppose when this Question came in debate in this Court lately in the Case of a very great Person 't was urged very earnestly and very learnedly by one that stands by you we upon that Debate asked Sir Samuel Astry what the Course of the
better look another way and look towards the Court for there your business lies L. Ch. Iust. Well Mr. Sollicitor What say you Mr. Soll. Gen. My Lord it appears plainly that the King is in possession of this Priviledge and has been so for these dozen Years for so long the Justice of the Kingdom towards all the Subjects hath run in all the instances of it in this Channel and tho' it has been contested as often as Mr. Pollixfen has been of Counsel for the Defendant in such Cases it has always been ruled against him he indeed has made his continual Claims Sir Samuel Astry saies he has raised the Dust and made a Hue and Cry but it has always gone against him And I would ask the rest of you Gentlemen that are of Council for my Lords the Bishops for some or one of you I am sure has been concerned in every Information that has been exhibited in this Court for this nine or ten Years last past I would ask you whether in any Information that you have been concerned in if the Party being brought in by Process insisted to have time and an Imparlance it was ever granted him I know you will not say it ever was why then should there be more done in this Case than has been done in all other Cases this ten Years 'T is not sufficient to make Declarations against the unreasonableness of the Practice for it is but what you have done your selves and insisted upon for Law and all those men that upon Informations have been compelled to plead have had Injury done them or else these Lords will have no Injury by the Court 's taking the same Course It is true my Lords the Bishops are Peers and here are Seven of them and Seven Lords go a great way they make a Committee I think in the House of Peers and a mighty matter is made of it that this is the Case of so many Lords But will you alter the Course of the Court because Seven of my Lords the Bishops are concerned in it and they make a mighty stir about the Reasonableness of the thing How can it be believed that the Law will not give a man time to make his Defence They agree themselves that if it were in the Case of Life and Death they must plead presently and doth not the same Reason hold and may not an Argument be drawn à fortiori in the Case of a Misdemeanour If I am not to have time when I plead for my Life there is less Reason I should have time to answer a Trespass But my Lord 't is not Reason that weighs in the Case 't is the Course of the Court which is the Law of the Court that we are contending for and what is there in the Case that should require so much time for my Lords the Bishops to plead to it It is charged in the Information that these Noble Prelates did make a Libel which was produced by them and published in the Kings presence they can easily tell whether thâ—… have done this or not done it what can they plead but the general Issue They talk of special matter to be pleaded but can they shew any more that they can say than what any poor ordinary Countryman if he were here to plead to an Information could say that is whether he was Guilty or not Guilty These Lords can tell whether it be true that they did publish the Paper laid in the Information and then your Lordship will tell them what will be the Consequences of that Publication in point of Law. We say all this was done at Westminster there the Scene is laid and it is not an Information for an old stale thing done a great while ago but a thing that was done yesterday and a thing notorious enough their contesting with the King about his Declaration of Indulgence And as to what Mr. Finch has said That this is a Novel Invention and a Trick to rob a man of his just Defence sure he forgets who it is that taught us the Trick if it be a Trick we have learnt it from those that trick'd before us and what is it that these Lords do desire they would have an Impaâ—… till Michaelmas Term does or can your Lordship think they ask than which is reasonable to have six Months time to plead not Guilty to an Information for a Libel and when so many men have been denyed it formerly upon the instigation of those very Gentlemen that now press so very hard to have it granted sure they must expect to be denyed it too and all this while these Lords lye under this accusation which is not so trivial a matter as some would make it I believe my Lords the Bishops have a desire to be cleared I suppose it is only their Council that desire to delay it upon what ground I know not I believe they themselves would be glad to remove the imputation which would be best done by a Tryal and the sooner the better If they have a mind to justifie themselves this is the readiest course for it and they may do it presently by Pleading Not Guilty My Lord I know I am in a great Auditory and abundance of your Lordships time has been taken up already I press it therefore for the sake of the King and for the sake of my Lords the Bishops we shall else have all â—…ang in suspence and hang in the Air for six Months longer therefore let the matter be put upon a fair Issue so as it may come to a speedy Determination I am sure is these Lords be innocent to day they will be innocent to morrow and if it were my own case I would desire to have it Tryed as speedily as I could and therefore I pray they may plead immediately Mr. I. Powel Mr. Soll. What do you say to the Difference that was taken between a person that was brought in Custody at the first instance where there is no contempt to the Process of the Court and one that comes in here by Capias upon default of appearing at the Summons Mr. Finch My Lord If I apprehend them aright they give us more than we did ask for Mr. Sollicitor has laid it down as a Rule that if a Man is taken upon a Capias in a Mean Process he shall have no Imparlance Mr. Soll. Gen. No you are greatly mistaken Sir and I pray don't lay down Rules for me Mr. Finch If I am Sir I beg your pardon but this I am sure of if a Venire Fac. goes out which is in the nature of a Subpoena and the party appear to it that being the first time he could come into Court you cannot force him to plead to an Information but he has an Imparlance of Course Mr. I. Powell Methinks it seems very reasonable that this forcing a Man to plead presently should be only a punishment for a Contempt of the Court and pray were my Lords the Bishops in contempt to
Recognizance that had time to Plead truly My Lord I cannot just now tell whether any such Instance can be produced but I verily believe there may be a great many but I turn it upon them and that with great Reason with Submission to your Lordship Shew me any man if you can above a dozen years ago that had not time allowed him to Plead Ay but say they Mr. Waterhouse an Ancient Clerk of the Crown Office that has been there these sixty years hath certified that this hath been the practice of all his time My Lord we that have been Conversant in the business of this Court did all very well know Mr. Waterhouse when he was here and sat in Court in the place of Sir Samuel Astry Sir S. Astry No Sir It was in Mr. Harcourt's place Mr. Pollixfen Well he executed a place here and 't is no matter whether he were Master of the Office or no but I think we all knew him very well he was a man as lame in his business as could be for there are some men that will never do business well let them be never so long at it and he was as weak in the practice of the Court and every thing else as 't is possible for one that has been bred in an Office can be and at this time he is grown so decreppit and superannuated that you may as well depend upon the Certificate of an old Woman as any thing that he shall say in such a Matter as this he is now almost fourscore years of Age and has lost that little Memory and Understanding he had but if his Certificate must be depended upon because of his standing in the Office pray My Lord let him come hither and do you ask him what he has to say in this Matter Mr. Soll. Gen. Aye that is very well indeed Mr. Pollixfen Good Mr. Sollicitor spare us certainly there needs not such great hast in this Matter we are upon a business of very great Weight and Concernment for you are now making a Law for the whole Kingdom in point of Practice in Cases of this Nature We do say indeed that by the Reason of the Heat and Zeal of these last ten years such a Usage has been introduced but Sir Samuel Astry tells you it was opposed and I hope that neither I nor thâ—… thing will be the worse thought of because I opposed what I thought an unreasonable and new Invention My Lord I know in the Case of the City of London we had time to plead a whole Vacation after an Imparlance and were not at all hurried on as the King's Counsel would do in this Case My Lord if they can produce any Ancient President for it I will say no more but there is no Case in Print in any of our Books that ever I read or can remember that countenances such an Opinion a man by this means may loose his just Defence and he has no Remedy nor will it over be in his Power to retrieve it for he may be brought on a suddain into Court upon a Warrant and when he is here he shall be charged with an Information and presently he must Plead not Guilty because he has not time to prepare a Plea of any other Nature let him have never so much other special Matter or occasion for it if you please to let this Matter be examined what the Presidents are and what Age those Precedents are then perhaps your Lordship will get some satisfaction but otherwise if the bare Certificate of the Master of the Office is to be a Guide to the Court what is Law and what is not we shall be in a very uncertain Condition especially when the Matter comes in the very face of it a great deal of Unreasonableness and Injustice They on the other side will argue that is not more unreasonable then the practice in the Case of Treason and Fellony where Persons are compelled to Plead instantly But under favour My Lord there is no Comparison between this Case and that though I know it was always thought a hardship and defect in our Law that a person should be denied time to plead in case of Life and Death except he can shew some special Matter of Law that he has to Plead and then he has always time allowed him to put it into Form And I could never think there was any Reason to be given for it but because the common Defence of Fellons would be little Shifts and Arts which would destroy proceedings and make them tedious and that would be an Encouragement to People to commit Fellony and beside there is a Trust which the Law reposes in the Court in Capital Cases to take care that these Men should not suffer upon any little Tricks in Law but if you come below Treason and Fellony the Law puts no such hardship upon the Defendant nor reposes such aspecial Trust in the Court but a man may plead any thing he has to plead And can any man plead before he sees what he is â—…o plead to and shall the Law allow him Council to prepare his Plea and not allow him time to consult with that Council about it These are thingâ—… My Lord that truly to me seems unreasonable But as to the Practice and course of the Court I pray your Lordship to give Order that the Precedents may be searched that you may know what the ancient Practice was Mr. Finch Whether you will grant an Impâ—…ance now or no yet I hope however you will think â—…it to give My Lords the Bishops time to plead Lord Chief Iustice. But Mr. Finch we have had a Certificate from Sir Samuel Astry which truly weighs a great deal with me he tells you the Practice has been so ever since he came here and â—…t Mr. Waterhouse â—…old him that it had been so all his time which is sixty years Mr. Pollixfen My Lord there are Persons here that will upon their Oaths declare That Mr. Waterhouse has often told them the Practice was otherwise even in his time and afterwards a long time before this new waâ—… of Proceeding came in Mr. Ince My Lord if I might have liberty to speak I can say Mr. Waterhouse has told me Lord Chief Iustice. Pray be quiet Mr. Ince Mr. Iustice Allybone But pray Mr. Pollixfen give me leave to mind you how the Evidence stands against you the Objections are that this has been a Practice but for twelve years last past if that be true I think it goes a great way for the practice of twelve years is President enough Prima Facie that such is the practice For how shall we come to the knowledge of the practice but from our Officer Sir Samuel Astry who has been here Examined and he tells you that upon his coming into the Office when it could not be so doubtful as now it seems it is he took Instructions from Mr. Waterhouse I allow you 't is but his Certificate but that must
go a great way with the Court. Sir Ro. Sawyer Such a practice as this has been always very rare in Informations for Misdemeanours and they bring you nothing of any President older then Sir Samuel Astry's time Mr. Finch Pray My Lord give me leave to very the Question I do not now make it a Question whether your Lordships should grant My Lords the Bishops an Imparlance but whether you would think fit to look into the Course of the Court before that time that Sir Samuel Astry speakâ—… of and take time to consider and search into Presidents Mr. I. Allybone Do you Mr. Finch give us any one Reason or President that may make us doubt whether this be the Course of the Court or no à And you could not but be aware of this before and therefore should have come prepared to make out your Objection Mr. Finch Mr. Pollixfen and the rest of the Practicers in My Lord Hales's time will tell you that the Course was otherwise in his time Sir Samuel Astry indeed tells you it has been so since his time but this was one of the Points it seems that he was ignorant of which made him inquire of Mr. Waterhouse so doubtful was this Practice Sir Samuel Astry I was an Attender upon this Court before I came into this Office but it was in another place on the other side of the Court and therefore was not concerned so much to know what was the Course on this side till I came into this Office. Mr. Sol. Gen. These Gentlemen differ among themselves one would have an Imparlance the other only time to plead I believe truly they cannot tell well what they would have I pray the Rules of the Court may be kept to Sir Sam. Astry Here are two Clerks that sit by me that have been a long time in the Office Mr. Harcourt my Secondary and the Clerk of the Rules I pray they may be asked their knowledge of this matter Mr. Soll. Gen. Certainly these Gentlemen think they have a Priviledge above all other people that they must not be subject to the same Rules as others are we on our 〈◊〉 have taken all the Methods that we could to make this matter manifest and what is it that these Gentlemen now propose They pray you to take time to consider but have they used the right means of creating a jealousie or suspicion in the Court that the Course is otherwise they can give no instance of it and all they say is 't is a Negative that this is not the Course of the Court but the Imparlance that they beg is in the Affirmative surely that they can find proof of if it be so As for my Lord Holly's Case that is with us and not against us let Mr. Pollixfen shew that ever any one of the Men that were brought into Court in Custody either had time to Plead or an Imparlance L. C. I. Sir Samuel Astry says he has given you his Opinion and here are two other Clerks of the Office that he refers himself to are you willing that they should be asked Mr. Ser. Pemberton Yes my Lord with all our hearts L. C. I. Mr. Harcourt How long have you been a Clerk in the Crown-Office Mr. Harcourt About seventeen or eighteen years my Lord. L. C. I. How long have you known the practice of the Court in this matter and what is it Mr. Harcourt I cannot charge my self so with Particulars from the time of my coming into the Office but for these ten or twelve years past I remember it has been as the King's Council pressed and as Sir Samuel Astry has declared L. C. I. What say you Mr. Sillyard How long have you known the Crown-Office Mr. Sillyard I have been a Clerk here about thirty years L. C. I. Well and how has the practice been all your time Mr. Sillyard I have not sat here as Clerk of the Rules but a little while but since I have sat here I have always observed it to be the Practice that one that comes in Custody should Plead immediately it was a thing heretofore that did not so often happen asit hath done here of late therefore I cannot so well speak to it but it hath fallen out frequently within some years last past and that hath been the constant Course Sir. Samuel Astry When you first came to be Attorney General Sir Robert Sawyer I am sure it was so Mr. Att. Gen. Pray let me ask you Mr. Sillyard you say you have known the Office thirty years When you first came to the Office were Informatitions as frequent as they are now and have been of late Mr. Sol. Gen. It was so in the Case of Mr. Hampden when you were Attorney General Sir Robert Sawyer he was forced to Plead immediately to an Indictment for a Crime that perhaps you will say was near upon Treason Sir Rob. Sawyer Yes truly it wanted but one Witness that was all Mr. Sol. Gen. But yet the Indictment was only for a Misdemeanour and there we strugled and debated the Matter but were forced to give it over because the course of the Court was against us so it has been by the unquestionable Testimony of Sir Samuel Astry for these twelve years last past and in those twelve years we have had many changes perhaps there may have been twelve Chief Justices and they have all affirmed it and if I then make it out that in all these Judges times that are within our Remembrance it has gone thus then there are enough of Precedents in the Matter Sir Rob. Sawyer But my Lord I desire to know whether that were the Ancient Course Mr. Sollicitor Mr. Sol. Gen. They that make the Objection ought to prove it but I will name Sir Robert Sawyer another Case and that is the Case of Sir Samuel Barnardiston which was the Case of a Libel too he was forced to plead immediately and it cost him 10000 l. Fine L. C. I. Well Gentlemen have you done on either side Mr. S. Pemberton If your Lordship will please to give us time till to morrow Morning we will come hither by Rule of Court and bring you some Certificates and Assidavits or else some Precedents that we hope will satisfie your Lordship in this Matter L. C. I. No Brother we cannot do that the Question is what the Course of the Court is we have had an Account of that from Sir Samuel Astry for twelve years of his own Knowledge and from Mr. Waterhouse by him for sixty years but for Mr. Waterhouse they except against him and say he was a person that was always Lazy and did not foâ—…well understand his business and now is superannuated that is said but is but â—…is dictum perhaps it may be so perhaps not and they have offered to Examine Mr. Ince about some Opinion that he has had from this Mr. Waterhouse it may be he may have asked him some Question that may lead to it and he may have given
mistake he own'd a Letter that he had writ to the Bishop of Oxford to be his Hand-writing and by comparison of this with that says he I take this to be his Hand-writing Mr. Brooks That is my meaning my Lord. Mr. Sol. Gen. Pray speak out and tell us what are the reasons that makes you say you believe this to be the Bishop of Ely's Writing Mr. Brooks Because it resembles a Letter that I have by me of his writing to the Bishop of Oxford Mr. Sol. Gen. And you say he own'd that Letter to be his Mr. Brooks My Lord Bishop of Oxford did answer it and I waited upon the Bishop of Ely with the Answer and he did own it Sir Geo. Treby How did he own it Sir Mr. Brooks I had some Communication with my Lord of Ely about the substance of that Letter and therefore I apprehended he own'd it Mr. Iust. Powell That 's a strange Inference Mr. Sollicitor to prove a man's Hand Mr. Att. Gen. We have more Evidence but let this go as far as it can Mr. Serj. Pemberton Certainly my Lord you will never suffer such a Witness as this L. C. Iust. Brother Pemberton I suppose they can prove it otherwise or else this is not Evidence Mr. Iust. Powell So they had need for it is a strange Inference of Mr. Sollicitor that this is a Proof of my Lord of Ely's Hand-writing Mr. Iust. Holloway The Bishop of Oxon was dead before any of this matter came in agitation Mr. Sol. Gen. My Lord we will bring other Proofs Call Mr. Chetwood Mr. Smith Mr. Chetwood and Mr. Smith sworn Mr. Sol. Gen. Mr. Chetwood we would know of you if you know my Lord Bishop of Ely's Hand-writing Mr. Chetwood I never saw him write Mr. Sol. Gen. That 's not an Answer to my Question Do you know his Hand-writing Mr. Chetwood I do not certainly know it Mr. Sol. Gen. Have you seen any of it Mr. Chetwood I have seen my Lord of Ely's Writing that has been said to be his L. C. Iust. But surely you had better take a Witness that has seen him write Mr. Iust. Powell I think 't is hardly possible for a man to prove his Hand that has not seen him write L. C. Iust. I think 't is better proof indeed to bring some that has seen him write Mr. Chetwood My Lord 't is a long time since I saw my Lord of Ely's Writing L. C. Iust. Pray bring some other Proof if you have it Bp. of Peterburgh My Lord we are here as Criminals before your Lordship and we are prosecuted with great Zeal I beg your Lordship that you will not be of Councel against us to direct 'em what Evidence they shall give L. C. Iust. My Lord of Peterburgh I hope I have not behaved my self any otherwise hitherto than as becomes me I was saying this and I think I said it for your Lordships advantage That this was not sufficient Proof and I think if your Lordship observed what I said it was for you and not against you Bp. of Peterb It was to direct them against us how they should give Evidence Mr. Serj. Pemberton Pray my Lord of Peterburgh sit down you 'll have no wrong done you Sir. Rob. Sawyer We that are of Council will take care of that and pray my Lord will you please to pass it by L. C. Iust. We are not used to be so serv'd and I will not be used so Mr. Sol. Gen. If your Lordship pleases to pass that by for what your Lordship said was in favour of my Lords the Bishops but I see they do not take it so Mr. Att. Gen. Pray Mr. Chetwood do you look upon the Name of my Lord of Ely do you believe that to be his Hand-writing Mr. Chetwood I do believe it is Sir Rob. Sawyer That 's very well when he says he never saw him write Mr. Iust. Powell What is the reason of that belief of his I would feign know Mr. Chetwood I have formerly seen his Hand I think it was his but I never saw Lord of Ely write his Hand Sir Rob. Sawyer Then the Question is Whether this be Evidence Mr. Finch How do you know that that which you saw formerly was my Lord of Ely's Hand Mr. Chetwood I have no such Certainty as positively to swear that that was his Hand Mr. Sol. Gen. We will go on to other Proofs and if we want better Evidence at the end we will argue with them Mr. Chetwood I am not certain that what I saw was my Lord of Ely's Hand-writing because I never saw him write Mr. Sol. Gen. You do very well to shew your good affection Mr. Att. Gen. Mr. Smith I would ask you this Question Do you know my Lord of Ely's Hand-writing Mr. Smith I have seen it often Mr. Att. Gen. Look upon the Name of my Lord of Ely in that Paper Do you believe it to be my Lord's Hand-writing or no Mr. Smith I did not see him write it Sir I can not tell whether it is or no. L. C. Iust. Did you ever see his Name Mr. Smith Yes but it was a great while ago and here are but seven Letters and I cannot judge by that I was better acquainted with his Hand-writing heretofore Mr. Sol. Gen. Pray Sir answer me Do you believe it to be his Writing or do you not Mr. Smith I believe it may for I did not see him write it Mr. Sol. Gen. But my Question is Do you believe it or do you not Mr. Smith I say I was better acquainted with it heretofore than I am now Mr. Sol. Gen. But pray answer my Question Do you believe that to be my Lord of Ely's Hand-writing or do you not Mr. Smith I believe it may Sir. Sir Rob. Sawyer Why do you believe it Mr. Smith I have no other reason to believe it but because I have seen something like it Mr. Iust. Powell How long ago is it since you saw him write Mr. Smith I have not seen him write so as to take notice of it for some years I could better judge of it when he writ his Name Turner than now it is Ely because there was more Letters to judge by Mr. Middleton sworn L. C. Iust. Here 's Mr. Middleton what do you call him for Mr. Sol. Gen. To prove many of their Hands Mr. Att. Gen. Pray shew him that Paper Mr. Sol. Gen. First Mr. Middleton do you know my Lord Archbishop's Hand-writing Mr. Middleton I have seen his Grace's Hand-writing Mr. Sol. Gen. Do you believe it to he his Mr. Middleton It is very like it Mr. Sol. Gen. But do you believe it or do you not Mr. Middleton I do believe it Mr. Sol. Gen. Do you know my Lord Bishop of St. Asaph's Hand-writing Mr. Middleton I never saw it as I know of Mr. Sol. Gen. What do you say to my Lord of Ely his Name is next Mr. Middleton It is like his Lordship's hand Mr. Sol. Gen. Do you
that you received as you say were written by my Lord himself or by his Secretary Mr. Clavell I have received Letters from him and his Secretary too Sir G. Treby But were you present with him when he writ any Letters with his own Hand Mr. Sol. Gen. You do not mean a Letter to your self sure Sir George Sir G. Treby No Sir I say any Letters Mr. Clavell I have been present with my Lord often but I cannot say I have seen my Lord write L. C. I. He has here told you he has had several Letters of my Lords own Hand and from his Secretary too Mr. I. Powell He has said it but you see he says he never saw him write Mr. Sol. Gen. We have given Evidence against my Lord Arch-Bishop Lord Bishop of Ely St. Asaph Peterborough and Bristol Mr. I. Powell Certainly Mr. Sollicitor you mistake But go on Mr. Sol. Gen. We have given Evidence I say against them Sir but whether it be sufficient Evidence we shall Argue by and by Call Mr. Hooper and Mr. Chetwood again Mr. Chetwood appeared Mr. Sol. Gen. Do you know the Hand-writing of my Lord Bishop of Bath and Wells Mr. Chetwood I have seen it Twice or Thrice but it is a considerable time since I did see it Mr. Sol. Gen. Do you believe that is his Hand-writing Mr. Chetwood I never saw him writâ—… his Name in my Life Mr. Sol. Gen. Pray look upon the Name and tell us what you believe of it Mr. Chetwood I believe it may but I do not certainly know it to be his Hand I rather believe it is my Lord Bishop of Bath and Wells his Hand than I believe that other to be my Lord of Peterboroughs Sir G. Treby Do you believe that to be my Lord of Peterborough's Hand or no Mr. Chetwood I say I rather believe that this is the Bishop of Bath and Wells his Writing than that which is above it or below it to be their Writing but truly I do not distinctly know my Lord Bishop of Bath and Wells his Hand Mr. Sol. Gen. Call Mr. Hooper L. C. I. You are very lame in this matter Mr. Sol. Gen. The Witnesses are unwilling and we must find out the Truth as well as we can Mr. Hooper did not appear Mr. Sol. Gen. Call Mr. Iames and Mr. Powell Mr. James appeared and was Sworn Mr Sol. Gen. Do you know my Lord Bishop of Bristol's Writing Mr. Iames Mr. Iames. Yes I believe I do but I am not so certain because my Lord Writes several times several Hands Mr. Sol. Gen. Shew him the Paper Is that my Lord of Bristol's Hand Mr. Iames. I cannot say it is or no. Mr. Sol. Gen. What do you believe Mr. Iames. It looks like his Hand and that 's all I can say Mr. Sol. Gen. But pray hearken and Answer to what I ask you you are prepared for one Question it may be and I shall ask you another upon your Oath Do you believe it to be the Hand-writing of my Lord of Bristol Mr. Iames. Upon my Oath I can only say it looks like it that 's all L. C. I. Did you ever see him Write Mr. Iames. Yes my Lord I have seen his Hand-writing several times and it is like his Hand-writing that is all I can say Mr. Sol. Gen. Sir remember you are upon your Oath and Answer my Question Mr. Iames. Upon my Oath I know no more than that Sir William Williams Mr. Sol. Gen. I ask you Sir whether you believe it to be his Hand or not Mr. Iames. My Lord it looks like his Hand and it may be his Hand Mr. Att. Gen. But you do think and believe one way or other What do you believe Mr. Iames. It may be his Hand for what I know and it may not Mr. Sol. Gen. It may be your Hand Mr. Iames. No Sir it cannot be mine I am sure Mr. Sol. Gen. What do you believe Mr. Iames. I believe it may be his Hand or it may not be his Hand that is all I can say L. C. I. Come Sir you must Answer fairly Do you believe it to be his Hand or do you not Mr. Iames. Yes I do believe it Mr. Att. Gen. You are very hard to believe methinks Mr. Iames. No I am not Mr. Sol. Gen. You do very well now Mr. Iames when you do well we 'll commend you Mr. Att. Gen. Call Mr. Nathaniel Powell Mr. Powell was Sworn Mr. Sol. Gen. Pray Sir let 's know what 's your Name Mr. Powell My Name is Nathaniel Powell Mr. Sol. Gen. Pray do you know the Hand-writing of my Lord Bishop of Chichester Mr. Powell I have not seen the Paper Sir. Mr. Sol. Gen. Do you know his Hand-writing Mr. Powell Yes I believe I do Mr. Sol. Gen. Look upon that Name of his Mr. Powell I did not see my Lord Write that Mr. Sol. Gen. Who says you did no Body asks that of you how you Answer Pray Sir remember your Oath and Answer seriously Do you believe it to be his Writing or no Mr. Powell I believe it is like my Lord's Hand-writing but I did never see him Write it Mr. Sol. Gen. No Body says you did Mr. Powell Therefore I cannot Swear positively it is his Hand Mr. Sol. Gen. We do not ask that neither Mr. Powell I cannot tell whether it be his Hand or no. L. C. I. Sir you must Answer the Question directly and seriously Do you believe it or do you not believe it Mr. Powell I cannot tell what to believe in the Case Mr. Sol. Gen. Then I ask you another Question upon your Oath Do you believe it is not his Hand Mr. Powell I cannot say that neither Mr. Sol. Gen. Once again I ask you upon your Oath Do you believe it to be his Hand I ask you plainly and let Mankind Judge of you Mr. Powell I tell you Sir I cannot tell what to believe Mr. Sol. Gen. My Lord if these things be endured there will be an end of all Testimony if Witnesses do not answer fairly to the Questions that are asked them Mr. I. Powell Truly to me for a Man to Swear his Belief in such a matter is an extraordinary thing Mr. Sol. Gen. He is obliged to answer Questions when they are fairely put to him Mr. Pollixfen I think that is a hard Question not to be Answered Mr. Sol. Gen. Make your Exceptions to the Evidence if you please L. C. I. First he says He knows his Hand then he says He has seen him write and then he says He did not see him write this but he shuffles he won't answer whether he believes it or not Mr. Pollixfen The Question is Whether belief in any case be Evidence Mr. Sol. Gen. If they have a mind to a Bill of Exceptions upon that point let them Seal their Bill and we 'll Argue it with them when they will in the mean time we 'll go on and that which we now pray my Lord is That this Paper
Whitehall Mr. Soll. Gen. What say you to the Bishop of St. Asaph Did he own it Mr. Blathwayt Yes All my Lords the Bishops did own it Mr. Soll. Gen. Name them particularly what say you the Bishop of Ely Mr. Blathwayt In the same manner my Lord. Mr. Soll. Gen. The Bishop of Chichester Mr. Blathwayt In the same manner Mr. Soll. Gen. The Bishop of Bath and Wells Mr. Blathwayt Yes my Lord. Mr. Soll. Gen. The Bishop of Peterborough Mr. Blathwayt Yes my Lord. Mr. Soll. Gen. And the Bishop of Bristol Mr. Blathwayt Yes my Lord. Mr. Soll. Gen. So We have proved they all owned it Mr. Iust. Holloway Could not this have been done at first and saved all this trouble Sir Rob. Sawyer Have you done with Mr. Blathwayt Mr. Attorney that we may ask him some questions Mr. Att. Gen. Ask him what you will. Mr. Ser. Pemb. Pray Mr. Blathwayt upon what occasion did they own it you are Sworn to tell the whole truth pray tell all your Knowledge and the whole Confession that they made Mr. Blathwayt My Lord I am called here by a Subpoena to answer on behalf of the King my Lord I am ready to doe my duty and I beg of your Lordship that you would please to tell me what is my duty for whatsoever I shall answer I shall speak the truth in Mr. Ser. Pemb. There is nothing desired but that you would speak the truth Mr. Blathwayt My Lord I am easily guided by your Lordship what I ought to answer to L. C. Iust. What is it you ask him Brother Pemberton Mr. Ser. Pemb. We desire Mr. Blathwayt to tell the whole discourse that passed at the Council when he says my Lords the Bishops owned this Paper Mr. Soll. Gen. That 's a very pretty thing indeed L. C. Iust. Look you Mr. Blathwayt you must answer them what they ask you unless it be an ensnaring Question and that the Court will take care of Mr. Blathwayt If your Lordship please to ask me any Question I shall readily answer it L. C. Iust. You must answer them Mr. Ser. Pemb. We ask you upon what occasion they came to own their Hands What discourse was made to them and what they answered Mr. Blathwayt My Lord I beg your Lordship's directions L. C. Iust. Come tell it Sir. Mr. Blathwayt My Lord the occasion was this This Paper was read in Council and I had the honour to read it before the King and it having been read before his Grace the Arch-Bishop and my Lords the Bishops they were asked whethey did own that Paper and my Lord they did own it Sir Rob. Sawyer Mr. Blathwayt was that the first time that my Lords the Bishops came in Mr. Blathwayt Sir I was not asked that Question L. C. Iust. What would you have Sir Robert Sawyer Sir Robert Sawyer We would have an account what passed at the Council L. C. Iust. Would you have all the Discourse betwixt the Council and my Lords the Bishops Mr. Ser. Pemb. All that relates to their Accusation my Lord their whole Confession and what was said to them Mr. Att. Gen. Do you think Mr. Serjcant that when we call a Witness you are at liberty to examine him to every impertinent thing Mr. Soll. Gen. My Lord we desire that they may only ask reasonable and proper Questions Mr. Ser. Pemb. Mr. Sollicitour he is sworn to answer and tell the whole truth and that 's all we ask of him Sir Rob. Sawyer Sir I will ask you a plain Question upon your Oath did not my Lord Arch-Bishop and the rest of my Lords the Bishops at first resuse to own it or to answer whether it were their Hands or not Mr. Soll. Gen. That is not a fair Question Sir Robert Sawyer 't is a leading Question Mr. Ser. Pemb. Then I ask you in short what did they refuse I am sure that is a fair Question for God forbid that any should hinder the King's Evidence from telling truth Sir Rob. Sawyer And God forbid that half Evidence should condemn any man. L. C. Iust. God forbid the Truth should be concealed any way Mr. Ser. Pemb. Pray Sir when they were first asked whether that was their Hands or not what answer did they give Mr. Blathwayt Sir I have begged the favour of my Lords the Judges to tell me what I am to answer and what Questions are proper for me to answer to L. Ch. Iust. You must answer any Questions that are not ensnaring Questions Sir Robert Sawyer Mr. Blathwayt you are upon your Oath to testifie the Truth Mr. Blathwayt Sir I am not acquainted with the Methods of Law I desire my Lords the Judges would instruct me Mr. Iust. Ailibone Answer to the Question that they ask you Ld. Ch. Iust. We observe what they ask you we 'll take care that they ask you nothing but what they should Mr. Blathwayt I desire the Question may be repeated Mr. S. Pemberton When they were first asked if it were their Hands what answer did they give the King Mr. Blathwayt His Grace the Archbishop and my Lords the Bishops at first did not immediately answer whether the Paper were theirs or no. Mr. S. Peinberton What did they say Mr. Blathwayt They said they did humbly hope if they were put to answer no advantage should be taken against them Mr. S. Pemberton What did they say farther at that time concerning His Majesties pleasure Mr. Soll. Gen. That 's a leading Question Mr. S. Pemberton you cannot leave your way of leading Witnesses Mr. S. Pemberton It is a very strange thing if we ask a question that 's general that 's excepted to if we ask any question in particular then they find fault with us that it is a leading Question so that we can never ask a question that will please them Pray Mr. Blathwayt what did they say concerning the King's pleasure whether they would answer if the King commanded them Mr. S. Trinder How can it be material what they said L. Cn. Iust. It is material that it should be asked and that it should be answered Mr. S. Levinz You are to tell the whole Truth Sir Pray tell us what did my Lords the Bishops say about submitting to the King's pleasure Mr. Soll. Gen. What is that to the purpose Mr. Pollixfen Mr. Sollicitour his Oath is to tell the truth and the whole truth and therefore he must answer my question Mr. S. Pemberton You are mighty loth Mr. Sollicitour to let us hear the truth I would not willingly lead him in any thing and I cannot see that this is any leading question unless his Oath be against Law which says he is to tell the whole truth Mr. At. Gen. My Lord I do beg your Lordship's favour of a word in this thing It is certain if they ask any thing that shall take off the Evidence that was first given that it is not true I cannot oppose it but if they ask questions onely to conflame and to possess people
with foolish notions and strange conceits that is not to the fact that we are now trying Sr. Rob. Sawyer 'T is onely to have the truth out that we doe it Mr. S. Pemberton There is no body here that will be enflamed Mr. Attorney I have asked a fair question the Court has ruled it so Mr. Blathwayt I shall readily answer any question that the Court thinks fit Mr. S. Pemberton Sir by the Oath you have taken you are to tell the whole truth L. Ch. Iust. Is he to tell you all that was done at the Council board that day Mr. S. Pemberton No my Lord onely what passed there about my Lords the Bishops Confession the whole of that matter Mr. Blathwayt There has been so much said between the asking of the question and this time that I desire it may be repeated that I may know what to answer to Mr. S. Pemberton I ask you in short Sir What did my Lords the Bishops say at the time of their appearing in Council concerning the King's pleasure whether they should answer or not Mr. Blathwayt The first time my Lords the Bishops came into the Council they were asked the question whether they did own that Paper they did immediately answer They humbly hoped as they stood there Criminals His Majesty would not take advantage against them but however they would obey His Majesties Command Sir Rob. Sawyer Were they commanded to withdraw Mr. Blathwayt Yes thereupon they were commanded to withdraw which they did Mr. S. Pemberton When they came in again what questions were asked them Mr. Blathwayt They came in several times more than twice I have reason to remark this that they did so Do you mean the second time Sir Mr. S. Pemberton Yes Sir. Mr. Blathwayt The second time they seemed unwilling to own the Paper Sir Rob. Sawyer And what did they doe the third time Mr. S. Pemberton But first let us know what more was done the second time Sir Geo. Treby How was that unwillingness of theirs overcome Mr. S. Pemberton When they exprest their unwillingness what did they say farther Mr. Blathwayt If I remember right they said as they did the first time they humbly hoped His Majesty would not take advantâ—…ge against them Mr. S. Pemberton Then what did they say the third time Sr. Rob. Sawyer Pray were they asked whether they published it Mr. Blathwayt As to the publishing it it was laid before them and I think they were asked the question whether they published it Sir Rob. Sawyer And what answer did they make Mr. Blathwayt I remember His Grace and my Lords the Bishops did not own they had published it but they denied it Sir Geo. Treby After they discovered their unwillingness the second time what followed next Mr. Blathwayt They did withdraw after the second Attendence Mr. S. Levins But what was said to them Was that all that was said to them the second time Mr. Blathwayt I have said two things already that they were unwilling to answer and that they denied the publishing L. Ch. Iust. This is strange usage of a Witness to put him to tell every thing that was said Mr. S. Pemberton I would ask you this question Sir When they came in the second time whether they did desire to know if it were His Majesties Command that they should own it L. Ch. Iust. That I must not permit you to ask Brother that is to lead the Witness Mr. S. Pemberton My Lord he will not answer general questions I have asked him all along general questions and I cannot get an answer from him to them Mr. Blathwayt I am ready to answer any questions that the Court thinks I should answer I am not backward to answer according to my duty L. Ch. Iust. Let one of you ask a question at a time and not chop in one upon another Mr. Soll. Gen. In all the Tryalls that ever I have been in in all the Cases of Criminals the King's Witnesses used to be treated with respect and not to be fallen upon in this manner L. Ch. Iust. He shall be sure to have all respect paid him Mr. Soll. Gen. He is in Office under the King. Mr. S. Pemberton I do not think Mr. Blathwayt does believe I would shew him any disrespect more than he would shew me Mr. Att. Gen. I beg one word my Lord. L. Ch. Iust. Mr. Attorney What do you say Mr. Att. Gen. My Lord I say I do oppose the asking of this question not but that every man has a right to cross examine a Witness but if they ask such a question let them tell us what use they would make of it L. Ch. Iust. Mr. Attorney General for that matter Mr. S. Pemberton My Lord if you please I 'll give Mr. Attorney an answer L. Ch. Iust. Brother Pemberton I was speaking to Mr. Attorney and pray hear me I will not ask you what use you 'll make of the question you ask but do you ask fair and regular questions and I 'll take care you shall have an answer to them Mr. Serj. Pemberton I will deal plainly with the Court and tell you what use we intend to make of our question if they answered under a Promise from His Majesty that it should not be given in Evidence against them I hope they shall not take advantage of it Mr. Soll. Gen. I say that is a very unmannerly question but however it shall be answered Mr. Serj. Pemberton Why so Mr. Sollicitour Mr. Soll. Gen. My Lord it is to put something upon the King which I dare hardly name L. C. Iust. We do not know what Answer will be made to it yet but it does look like an odd kind of question Mr. Soll. Gen. If men will be so pressing I for the King desire the question may be entred Sir R. Sawyer What do you mean Mr. Sollicitour Mr. Soll. Gen. I know very well what I mean Sir I desire the question may be recorded in Court. Mr. Serj. Pemberton Record what you will I am not afraid of you Mr. Sollicitour Mr. Soll. Gen. Are you afraid of the Law Mr. Serj. Pemberton No nor of you neither L. C. Iust. Pray be quiet Gentlemen Mr. Att. Gen. Pray Mr. Blathwayt answer whether there was any promise made to my Lords the Bishops from the King. Mr. Blathwayt My Lord I take the question to be whether the King was pleased to make my Lords the Bishops any promise of not taking advantage of what answer they made Mr. Att. Gen. That is the question Mr. Blathwayt As that question is stated there was no such made L. C. Iust. Look you he tells you there was no such promise made there is an Answer to your Question Brother Mr. Serj. Levinz We made no such question but the question I would ask is this Mr. Soll. Gen. For the satisfaction of the Court repeat what you said just now Mr. Blathwayt Mr. Blathwayt I take the question to be whether the King made any promise
to my Lords the Bishops that no advantage should be taken of what they said and I say the King made no such promise Mr. Serj. Pemberton We did not ask you the question but we only told you what use we would have made of another question Mr. Pollixfen Mr. Blathwayt I see you can very well distinguish what questions are to be answered I ask you in short upon your Oath When they were first called in what was said to them and what was answered by them L. C. Iust. Here has been a great deal of wrangling but this is a fair question and may reduce us to order again tell us oâ—…er again from the beginning what passed when my Noble Lords the Bishops came in the first second and third time when they were examined about this Paper Mr. Blathwayt My Lord I shall comply with your Lordship's Directions I apprehend I am to answer together concerning the first second and third comings in of my Lords the Bishops into the Council The first time as I said before my Lords the Bishops were unwilling to own the Paper and did say they humbly hoped His Majesty would not take advantage against them but that they were ready to obey his Command The second time they were called in they did repeat it again that they hoped His Majesty would not take advantage against them after that there was mention made of the Paper being published I remember my Lords the Bishops said they had not published it Sir R. Sawyer Is that all Mr. Att. Gen. You have no mind to hear all I think L. C. Iust. How do you expect to be answered your questions if you interrupt them Go on Mr. Blathwayt Mr. Blathwayt Sir I said last that they having prayed the King that no advantage might be taken against them for what they should say there was mention made of the Paper its being published and my Lords the Bishops did say they had not published it and His Grace my Lord Archbishop said it was written with his own Hand and that he had not made use of his Clerk. Sir. R. Sawyer Is that all you can remember that passed at that time Mr. Blathwayt This is the substance of what I remember L. C. Iust. Was this the third time Mr. Blathwayt No that was the second time my Lord. Mr. Pollixfen If there be not some order in this Evidence my Lord we shall not be able to observe any thing upon it Pray what was done afterwards Mr. Blathwayt My Lord Chancellour upon their coming in did require them to answer whether they did own that Paper or not my Lords the Bishops did own the Paper Mr. Pollixfen Do you remember in what words or expressions as near as you can they did own it Mr. Soll. Gen. Is this a practice to be endured Mr. Finch Why he may apprehend and take that to be an owning of it which was not Mr. Soll. Gen. Has not he sworn the manner of it and almost the very words Mr. Serj. Levinz We desire nothing of him but that he will tell us what words they said when they owned it Mr. Blathwayt It was the third time that they came in that they owned it Mr. Serj. Pemberton Why what did they say Mr. Blathwayt My Lord Chancellour required them to answer whether they owned the Paper or no. Mr. Serj. Pemberton What did they say then Mr. Blathwayt As near as I can remember His Grace and my Lords the Bishops did own the Paper Mr. Serj. Pemberton What words did they own it in tell the manner of it Mr. Soll. Gen. What 's this to the purpose Mr. Finch Mr. Blathwayt Did you take notes of what passed there Mr. Blathwayt I answer Sir I did not take notes for I attended the King at his Elbow and did not take notes Mr. Finch you know the manner of the Council in such cases very well Mr. Att. Gen. Then we ask you for the King because they shall not enflame People by such an expression In what words did they own it if you can remember Mr. Blathwayt Sir I have declared my memory as well as I can when the other Clerks come to be examined if they can tell any more let them Mr. Soll. Gen. But we will have no Discourse to enflame the World Did the King promise or declare that no advantage should be taken of their confession L. Ch. Iust. I would ask him that question What was the manner that my Lord Chancellour exprest himself in to them when they came in the third time Mr. Blathwayt Assoon as my Lord Chancellour had required them to declare whether they owned that Paper as well as I remember His Grace took the Paper in his hand and it was handed over or shewed to my Lords the Holding it forth to the Court. Bishops and they owned and declared so just as if they should lay it before the Court just so I do not recollect my self of all the circumstances that passed I only can tell you the substance Mr. Soll. Gen. He does not remember what they said particularly Mr. Att. Gen. Mr. Sollicitour I know well enough what they mean by the question I know they would fain possess the World with a belief that there was such a promise made them and yet they are prosecuted notwithstanding that promise therefore I do ask you Mr. Blaithwayt and for the King's Honour I must ask it Did the King make any Promise or Declaration that no advantage should be taken or use made of it Mr. Blathwayt The King did not make any Promise or Declaration that no advantage should be taken or use made of it Mr. Soll. Gen. He only put them upon it whether they did own it or not Mr. Att. Gen. I ask you upon your Oath Did my Lord Archbishop own it to be his Head-writing Mr. Blathwayt Yes he did and said he writ it with his own Hand and would not let his Clerk write it Mr. Att. Gen. Did he own the whole to be his Hand-writing or not Mr. Blathwayt Yes he did Mr. Att. Gen. Did every one of the Bishops own their names subscribed to it Mr. Blathwayt Yes Mr. Soll. Gen. Then my Lord we pray now that it may be read L. C. Iust. I suppose now they will be content it should be read Mr. Finch If your Lordship please to favour me one word I think it cannot yet be read and my Objection is this L. C. Iust. I thought you had made all your Objections before as to the reading of it Mr. Finch Pray my Lord spare us Here are two parts of this Information the one is for consulting and conspiring to diminish the King's Royal Prerogative and for that end they did make and write a seditious Libell the other part is that they did publish this seditious Libell We are hitherto upon the first part the making and writing of it both parts are local untill they have proved the making and writing of it to have been in Middlesex it
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