say it shall be this day fortnight and let there be a Jury according to the usual course Sir Rob. Sawyer We pray it may be in the presence of the Attorneys or Sollicitors on both sides L. C. I. What is the usual coâ—…se Sir Samuel Astry Do you use to return twenty four or forty eight and then strike out twelve a piece which I perceive they desire for the Defendants Sir Sam. Astry My Lord the course is both ways and then it may be as your Lordship and the Court will please to order it L. C. I. Then take forty eight that is the fairest Mr. Att. Gen. We agree to it we desire nothing but a fair Jury Sir Rob. Sawyer Nor we neither try it when you will. L. C. I. Take a Recognizance of his Grace my Lord of Canterbury in 200 l. and the rest of my Lords in 100 l. a piece Mr. Att. Gen. What your Lordship pleases for that we submit to it Clerk. My Lord of Canterbury your Grace acknowledges to owe unto our Soveraign Lord the King the sum of 200 l. upon condition that your Grace shall appear in this Court on this day fortnight and so from day to day till you shall be discharged by the Court and not to depart without leave of the Court. Is your Grace contented A. B. C. I do acknowledge it Clerk. My Lord Bishop of St. Asaph you acknowledge to owe unto our Soveraign Lord the King the sum of 100 l. upon condition that your Lordship shall appear in this Court on this day fortnight and so from day to day until you shall be discharged by the Court and not to depart without leave of the Court. Is your Lordship contented Bish. of St. Asaph I do acknowledge it The like Recognizances were taken of all the rest of the Bishops and then the Court arose De Termino Sanctae Trinitatis Anno Regni Jacobi Secandi Regis Quarto In Banco Regis Die Veneris vicesimo nono die Junii 1688. in eod ' Term. Being the Feast of St. PETER and St. PAUL Dominus Rex versus Archiep. Cantuar. al. Sir Robert Wright Lord Chief Justice Mr. Justice Holloway Mr. Justice Powell Mr. Justice Allybone Judges Clerk. CRyer make Proclamation thrice Cryer Oyes Oyes Oyes Our Sovereign Lord the King streightly charges and commands every one to keep silence upon pain of Imprisonment Cl. of the Cr. Call the Defendents Cryer William Lord Archbishop of Canterbury Archbish. Here. Cryer William Lord Bishop of St. Asaph Bish. St. Asaph Here. And so the rest of the Bishops were called and answered severally Clerk. Gardez votres Challenges Swear Sir Roger Langley Cryer Take the Book Sir Roger. You shall well and truly try this Issue between our Sovereign Lord the King and William Lord Archbishop of Canterbury and others according to your Evidence So help you God. The same Oath was administred to all the Jury whose Names follow viz. Sir Roger Langley Barr. Sir William Hill Knt. Roger Iennings Esq Thomas Harriot Esq Ieoffery Nightingale Esq William Withers Esq William Avery Esq Thomas Austin Esq Nicholas Grice Esq Michael Arnold Esq Thomas Done Esq Richard Shoreditch Esq Clerk. You Gentlemen of the Jury who are sworn hearken to the Record Sir Thomas Powis Knight His Majesty's Attorney-General has exhibited an Information which does set forth as followeth ff MEmorandum That Sir Thomas Powys Knt. Attorney-General of our Lord the King who for our said Lord the King in this behalf prosecutes came here in his own person into the Court of our said Lord the King before the King himself at Westminster on Friday next after the morrow of the Holy Trinity in this Term and on the behalf of our said Lord the King giveth the Court here to understand and be informed That our said Lord the King out of his signal Clemency and gracious intention towards his Subjects of his Kingdom of England by his Royal Prerogative on the fourth day of April in the third year of the Reign of our said Lord the King at Westminster in the Country of Middlesex did publish his Royal Declaration entituled His Majesty's Gracious Declaration to all his Loving Subjects for Liberty of Conscience bearing date the same day and year sealed with the Great Seal of England in which Declaration is contained JAMES R. proâ—…t in the first Declaration before recited And the said Attorney-General of our said Lord the King on behalf of our said Lord the King further giveth the Court here to understand and be informed That afterwards to wit on the twenty-seventh day of April in the fourth year of the Reign of our said Lord the King at Westminster aforesaid in the County of Middlesex aforesaid our-said Lord the King out of his like Clemency and gracious intention towards his Subjects of his Kingdom of England by his Royal Prerogative did publish his other Royal Declaration entituled His Majesty's Gracious Declaration bearing date the same day and year last mentioned sealed with his Great Seal of England in which Declaration is contained JAMES R. Our Conduct has been such c. prout in the second Declaration before recited Which said Royal Declaration of our said Lord the King last mentioned our said Lord the King afterwards to wit on the thirtieth day of April in the fourth year of his Reign aforesaid at Westminster aforesaid in the County of Middlesex aforesaid did cause to be printed and published throughout all England and for the more solemn Declaring Notification and Manifestation of his Royal Grace Favour and Bounty towards all his Leige-people specified in the Declaration last mentioned afterwards to wit on the fourth day of May in the fourth year of his Reign at Westminster aforesaid in the County of Middlesex aforesaid our said Lord the King in due manner did Order as followeth At the Court at Whitehall the Fourth of May 1688. By the King 's most Excellent Majesty and the Lords of His Majesty's most Honourable Privy-Council IT is this day Ordered by His Majesty in Council That His Majesties late Gracious Declaration bearing date the Twenty Seventh of April last be read at the usual time of Divine Service upon the Twentieth and Twenty Seventh of this Month in all Churches and Chappels within the Cities of London and Westminster and Ten Miles thereabout And upon the Third and Tenth of Iune next in all other Churches and Chappels throughout this Kingdom And it is hereby further Ordered That the Right Reverend the Bishops cause the said Declaration to be sent and distributed throughout their several and respective Diocesses to be read accordingly W m. Bridgeman And further the said Attorney-General of our said Lord the King on behalf of our said Lord the King giveth the Court here to understand and be informed That after the making of the said Order to wit on the eighteenth day of May in the fourth year of the Reign of our said Lord the King at Westminster aforesaid in the County of Middlesex
is not Evidence upon this Information Mr. Soll. Gen. We have proved it written and published in Middlesex Mr. Serj. Pemb. The contrivance and writing of a Libell is in itself penal and they may be punished for it if they be found guilty Now if they could give an undeniable Evidence concerning the publishing of it that is nothing to this point but if they should not give such Evidence or any Evidence at all of the publication yet if it be proved that it was written and contrived by them they would be guilty for so much if it be a Libell and this we say is local as well as all the rest and therefore we insist upon it that the writing and contriving must as well be proved to be in Middlesex as the publication for all is local L. C. Iust. There is no publishing yet proved Mr. Serj. Levinz It is true my Lord here is nothing of a Publication yet with your Lordship's favour for their Answer to His Majesty in Council was that they did not publish it all that is said yet is that they owned the Paper to be their hands My Lord does the owning of that own that it was written in the County of Middlesex or that it was contrived or made there No surely upon this Evidence the place is clearly at large My Lord this might have been done in the County of Surrey or Somerset or any other County Their Information is that they did consult and contrive to diminish the King's Prerogative at Westminster in the County of Middlesex and there they did write and cause to be written this Libell and there they did publish it suppose it should be granted that it is proved that this is the Archbishop's Hand-writing and these are their Names to it is there any one Evidence that any thing of this was done in Middlesex and my Lord that is the thing they are to prove Mr. Sommers If your Lordship please all matters of Crime are so local that if it be not proved to be done in the County where it is laid the party accused is as innocent as if he never had done the thing and with submission it is the very point of the Information that it be proved they are guilty of the Fact in the place where it is laid to be done L. C. Iust. This is the same thing over and over again but I am content to hear you Mr. Sommers at any time I have told you my opinion about reading of the Paper already if you 'll have it again you may Mr. Pollixfen Pray good my Lord spare us before it be read Mr. Iust. Holloway Mr. Pollixfen you have not yet had the Directions of the Court for the reading of it Mr. Att. Gen. My Lord when this Paper is read which we pray it may be we will answer their Objections but at present we say they are out of time Mr. Pollixfen Good Lord what a â—…ange thing is this We object against the reading of it and you 'll answer us after it is read Mr. Soll. Gen. Certainly my Lord we have done enough to prove that this is a paper owned by them in the County of Middlesex and we pray it may be read L. Ch. Iust. Truly I am of the same mind I was before that it is too soon to make the Objection and that the Paper ought to be read Mr. Soll. Gen. We submit to your Rule Mr. Pollixfen If it be the Will of the Court I have nothing to say Mr. Iust. Powell My Lord The Contrivance and Publication are both matters of Fact and upon Issue joined the Jurors are Judges of the Fact as it is laid in the Information but how can they be Judges of a matter of Fact done in another County and it must be presumed in favour of Innocence not to be done in this County but in another except they prove it Mr. Att. Gen. We are not yet ripe for arguing that point Mr. Soll. Gen. We are speaking only to the Court now for the reading of this Paper and the Jury are not Judges of that whether the Paper ought to be read or no that is merely a matter of Law and under the direction of the Court and therefore I pray since it is now in your Lordship's Judgment whether that Paper should be read that you would please to order it to be read L. C. Iust. I can only give you my own opinion let my Brothers give theirs Mr. Iust. Holloway There is no body against the reading of it my Lord I suppose my Brother Powell is not against its being read Mr. Iust. Powell But they say the King's Counsel must make it out first that the writing of it and the conspiring about it was in the County of Midds or there can be no judgment so much as to read it Mr. Pollixfen My Lord If the Objection be saved to us we shall not so much oppose the reading it only we would not be surprized in point of time Mr. Iust. Powell Nay if they consent to the reading we have no reason to hinder it L. C. Iust. Brother I believe they know well enough what they have to say for their Clients let the Paper be read Clerk reads The Humble Petition of William Archbishop of Canterbury Sir. R. Sawyer Read the whole Petition Pray my Lord that the whole may read Read the Top first Sir to whom it was directed L. C. Iust. Read the whole Clerk reads To the King 's Most Excellent Majesty The Humble Petition of William Archbishop of Canterbury and of divers of the Suffragan Bishops of that Province now present with him in behalf of themselves and others of their absent Brethren and of the Clergy of their respective Dioceses Humbly sheweth THat the great aversness they find in themselves to the distributing and publishing in all their Churches your Majesties late Declaration for Liberty of Conscience proceedeth neither from any want of Duty and Obedience to your Majesty our holy Mother the Church of England being both in her Principles and in her constant practice unquestionably loyal and having to her great Honour been more than once publickly acknowledged to be so by your Gratious Majesty nor yet from any want of due tenderness to Dissenters in relation to whom they are willing to come to such a Temper as shall be thought fit when that matter shall be considered and settled in Parliament and Convocation but amongst many other considerations from this especially because that Declaration is founded upon such a Dispencing Power as hath been often declared illegal in Parliament and particularly in the Years 1662 and 1672 and in the beginning of your Majesties Reign and is a matter of so great moment and consequence to the whole Nation both in Church and State that your Petitioners cannot in Prudence Honour or Conscience so far make themselves parties to it as the Distribution of it all over the Nation and the solemn Publication of it once and again even in
THE PROCEEDINGS AND TRYAL IN THE CASE OF The Most Reverend Father in GOD WILLIAM Lord Archbishop of CANTERBURY And the Right Reverend Fathers in God WILLIAM Lord Bishop of St. Asaph FRANCIS Lord Bishop of Ely IOHN Lord Bishop of Chichester THOMAS Lord Bishop of Bath and Wells THOMAS Lord Bishop of Peterborough And IONATHAN Lord Bishop of Bristol In the Court of Kings-Bench at Westminster in Trinity-Term in the Fourth Year of the Reign of King Iames the Second Annoque Dom. 1688. Licensed and Entred according to Act of Parliament LONDON Printed for Thomas Basset at the George in Fleet street and Thomas Fox at the Angel in Westminster-Hall 1689. TO HIS Most Illustrious HIGHNESS WILLIAM HENRY Prince of Orange May it please Your Highness HOW deeply the Design was laid and with what Violence carry'd on by those who lately Steer'd the Helm of this State for the Subversion of the Establish'd Religion and Government of these Three Kingdoms is already sufficiently well known to Your Highness Among the rest one of their Chiefest Contrivances was by a Malicious and Illegal Prosecution to have extinguish'd the Brigthest Luminaries of the English Church to the end that the benighted People might the more easily after that have been misled into the Pitfals of Superstition and Slavery But as Heaven began their Disappointment in eluding both at once there Subtilty and Malice by the speedy Deliverance of the Seven Renowned Sufferers from the Jaws of their Oppressors So the utter Dissolution of their Arbitrary Command and Domineering Power under the Conduct of the same Providence was fully Compleated Great SIR by Your Deliberative Prudence and Undaunted Courage To Your Illustrious Highness therefore the Oblation of these Sheets containing an exact Accompt of the Prosecution and Tryal of those Heroick Prelates is most justly due as being That wherein Your Higness may in part discern the Justice of the Cause You have so Generously undertaken and that it was not without Reason that the English Nation so loudly Implor'd Your timely Assistance A clear convincement that it was not Ambition nor the desire of spacious Rule but a Noble and Ardent Zeal for the most Sacred Worship of God which rows'd Your Courage to rescue a Distressed Land whose Religion Laws and Liberties were just ready to have been overwhelm'd with French Tyranny and Romish Idolatry Therefore that the Nation may long continue under the Protection of Your Glorious Administration is the Prayer of Great SIR Your Highnesses most Humble Most Faithful and most Obedient Servants Tho. Basset Tho. Fox December 13. 1688. NOT long after the Tryal of his Grace the Lord Archbishop of Canterbury and the other Six Bishops and while the Passages thereof were fresh in my Memory I perused that Copy of this Proceeding and Tryal which Mr. Ince their Lordships Attorney had caused to be taken for their Use And I have also lately read over the same again as intended to be printed by Mr. Basset and Mr. Fox And I do think it to be a very Exact and True Copy of the said Proceeding and Tryal according to the best of my Judgment having been very careful in perusing thereof Ioh. Powel These Peers were present on the 15th Day of Iune 1688. when the Lords the Archbishop and Bishops were brought into Court from the Tower upon the Habeas Corpus VIZ. Lord Marquis of Hallifax Lord Marquis of Worcester Earl of Shrewsbury Earl of Kent Earl of Bedford Earl of Dorset Earl of Bullingbrook Earl of Manchester Earl of Burlington Earl of Carlisle Earl of Danby Earl of Radnor Earl of Nottingham Lord Viscount Fauconberge Lord Grey of Ruthyn Lord Paget Lord Chandoys Lord Vaughan Carbery These Peers were present on the Day of the Tryal being the 29th of Iune 1688. and the Feast of St. Peter and St. Paul. VIZ. Lord Marquis of Hallifax Lord Marquis of Worcester Earl of Shrewsbury Earl of Kent Earl of Bedford Earl of Pembrook Earl of Dorset Earl of Bullingbrook Earl of Manchester Earl of Rivers Earl of Stamford Earl of Carnarvon Earl of Chesterfield Earl of Scarsdale Earl of Clarendon Earl of Danby Earl of Sussex Earl of Radnor Earl of Nottingham Earl of Abington Lord Viscount Fauconberge Lord Newport Lord Grey of Ruthyn Lord Paget Lord Chandoys Lord Vaughan Carbery Lord Lumley Lord Carteret Lord Ossulston 'T is possible more of the Peers might be present both Days whose Names by reason of the Croud could not be taken De Termino Sanctae Trinitatis Anno Regni Jacobi Secundi Regis Quarto In Banco Regis Die Veneris Decimo Quinto Die Junii 1688. Dominus Rex versus Archiep. Cantuar. al. Sir Robert Wright Lord Chief Justice Mr. Justice Holloway Mr. Justice Powell Mr. Justice Allybone Judges THIS being the first day of the Term His Majesties Attorney General as soon as the Court of Kings Bench was sat moved on the behalf of the King for a Habeas Corpus returnable immediate directed to the Lieutenant of the Tower to bring up his Grace the Lord Arch-Bishop of Canterbury and the Bishops of St. Asaph Ely Chichester Bath and Wells Peterborough and Bristol which was granted And with great dispatch about eleven a Clock the very same day the Lieutenant returned his Writ and brought the said Lord Arch-Bishop and Bishops into Court where being set down in Chairs set for that purpose Mr. Attorney-General moved the Court. Viz. Mr. Att. Gen. My Lord I pray that the Writ and Retorn may be read by which my Lords the Bishops are brought hither Lo. Ch. Iust. Read the Retorn Clerk reads the Retorn which in English is as follows viz. I Sir Edward Hales Baronet Lieutenant of the Tower of London named in the Writ to this Schedule annext To Our Mâ—… Serene Lord the King do most humbly certifie That before the coming of the said Writ to wit the Eighth day of June in the Fourth Year of the Reign of our Lord James the Second King of England c. William Lord Arch-bishop of Canterbury William Lord Bishop of St. Asaph Francis Lord Bishop of Ely John Lord Bishop of Chichester Thomas Lord Bishop of Bath and Wells Thomas Lord Bishop of Peterborough and Jonathan Lord Bishop of Bristol mentioned in the aforesaid Writ were committed and delivered to and are retained in my Custody by Vertue of a certain Warrant under the Hands and Seals of George Lord Jeffries Baron of Wem Lord High Chancellor of England Robert Earl of Sunderland Lord President of the Privy Council of our Lord the King Henry Lord Arundel of Warder Keeper of the Pivy Seal of our said Lord the King William Marquess of Powis John Earl of Mulgrave Lord Great Chamberlain of England Theophilus Earl of Huntingtou Henry Earl of Peterborough William Earl of Craven Alexander Earl of Moray Charles Earl of Middleton John Earl of Melfort Roger Earl of Castlemain Richard Viscount Preston George Lord Dartmouth Sidney Lord Godolphin Henry Lord Dover Sir John Earnly Knight Chancellor of the
Exchequer of our said Lord the King Sir Edward Herbert Knight Chief Iustice of the Common Bench of our Lord the King and Sir Nicholas Butler Knight Lords of his Majesties Most Honourable Privy Council to me directed the Tenor of which Warrant follows in these Words viz. THESE are in his Majesties Name and by his Command to require you to take into your Custody the Persons of William Lord Arch-bishop of Canterbury William Lord Bishop of St. Asaph Francis Lord Bishop of Ely Iohn Lord Bishop of Chichester Thomas Lord Bishop of Bath and Wells Thomas Lord Bishop of Peterborough and Ionathan Lord Bishop of Bristol For Contriving Making and Publishing a Seditious Libel in Writing against his Majesty and his Government and them safely to keep in your Custody until they shall be delivered by due Course of Law For which this shall be your sufficient Warrant At the Council Chamber in White-Hall this Eighth day of Iune 1688. And this is the Cause of the taking and detaining c. Lord Ch. Iust. Well What do you desire Mr. Attorney Mr. Att. Gen. We pray for the King that the Return may be filed L. Ch. Iust. Let it be filed Mr. Att. Gen. By this Retorn your Lordship observes what it is my Lords the Bishops were committed to the Tower for it is by Warrant from the Council Board where when their Lordships appeared they were not pleased to give their Recognizances to appear here as they were required by the King to do and there upon they were committed to the Tower and now come before the Court upon this Retorn of the King 's Writ of Habeas Corpus and by the Retorn it does appear it was for Contriving Writing Framing and Publishing a Seditious Libell against His Majesty and the Government My Lord it is our Duty who are the King's Councel pursuant to our Orders to prosecute such kind of Offences and when the proper time shall come for us to open the nature of the Offence your Lordships will then judge what reason there is for this Prosecution but in the mean time what we are now to offer to your Lordship is The Officer of this Court has an Information against his Grace the Archbishop of Canterbury and the rest of my Lords the Bishops which we desire may be read to them and pray that they may plead to it according to the Course of the Court. Sir Rob. Sawyer If it please your Lordship to spare us a word for my Lords the Bishops Mr. Att. Gen. My Lord We pray for the King the Information may be read Sir Rob. Sawyer We define to be heard a word first Mr. Soll. Gen. We oppose your speaking any thing till the Information hath been read Sir Rob. Sawyer But what we have to offer is proper before it be read Mr. Att. Gen. Your time is not yet come Sir Robert. Sir Rob. Sawyer Yes this is our proper time for what we have to say and therefore we move it now before there be any other proceedings in this matter Mr. Soll. Gen. It is irregular to move any thing yet pray let the Information be read first Mr. S. Pemberton If your Lordship please to spare us we will offer nothing but what is fit for us to do Sir Rob. Sawyer And now is our proper time for it Mr. Soll. Gen. Gentlemen You do know the way of Proceeding in such Cases better than so I am sure as for you Sir Robert Sawyer you have often oppos'd any such Motion as irregular and I hope the Case is not alter'd however you may be the course of the Court is the same Sir Rob. Sawyer With submission if your Lordship please to spare me a word that which I would move is to discharge my Lords the Bishops upon this Return and from their Commitment upon this Warrant Mr. Att. Gen. Surely these Gentlemen think to have a Liberty above all other People here is an Information which we pray my Lords the Bishops may hear read and plead to Mr. Soll. Gen. Certainly Sir Rob. Sawyer you would not have done thus half a year ago Sir Rob. Sawyer What would not I have done I move regularly with Submission to discharge my Lords the Bishops from their Commitment If they are not here legally Imprisoned now they are before your Lordships upon this Writ then you will give us leave to move for their Discharge before any thing else be said to them and that is it we have to say to demand the Judgment of the Court upon this Return whether we are legally Imprisoned Mr. Att. Gen. Under Favour my Lord neither the Court nor they are ripe for any Motion of this Nature yet Mr. S. Pemberton If we do not move it now it will afterwards I fear be too late Mr. Soll. Gen. These Gentlemen are very forward but certainly they mistake their time this is a Habeas Corpus that 's brought by the King and not by the Prisoners and therefore they are too soon till they see what the King has to say to them Mr. Att. Gen. Your Lordship cannot as yet be moved for your Judgment about the Legality of this Commitment because this Writ was granted upon our Motion who are of Councel for the King and upon this Writ they are brought here and what is it we desire for the King Certainly nothing but what is Regular we have here an Information for the King against my Lords and we desire they may plead to it Mr. S. Pemberton Good my Lord will you please to hear us a little to this Matter L. C. Iust. Brother Pemberton we will not refuse to hear you by no means when you speak in your proper time but it is not so now for the King is pleased by his Attorney and Sollicitor to Charge these Noble Persons my Lords the Bishops with an Information and the Kings Councel call to have that Information read but you will not permit it to be read Mr. S. Pemberton Pray my Lord spare us a word if we are not here as Prisoners regularly before your Lordship and are not brought in by the due Proâ—… of the Court then certainly the Kings Councel or the Court have no Power to charge us with an Information therefore we beg that you will hear us to that in the first place whether we are Legally here before you Mr. Soll. Gen. These Gentlemen will have their proper time for such a Motion hereafter Mr. Pollexfen No Mr. Soll. this is without all Question our only time for it we shall have no time afterwards Mr. Att. Gen. Yes you will for what do we who are of Councel for the King now ask of the Court but that this Information may be read when that is done if we move to have my Lords the Bishops plead then they may move what they will but before we make that Motion they cannot break in upon us with their Motion and with Submission to your Lordship whether my Lords the Bishops were duely Committed
aforesaid William Archbishop of Canterbury of Lambeth in the County of Surrey William Bishop of St. Asaph of St. Asaph in the County of Flynt Francis Bishop of Ely of the Parish of St. Andrew Holbourn in the County of Middlesex Iohn Bishop of Chichester of Chichester in the County of Sussex Thomas Bishop of Bath and Wells of the City of Wells in the County of Somerset Thomas Bishop of Peterburgh of the Parish of St. Andrew Holbourn in the County of Middlesex and Ionathan Bishop of Bristol of the City of Bristol did consult and conspire among themselves to diminish the Regal Authority Royal Prerogative Power and Government of our said Lord the King in the premises and to infringe and clude the said Order and in prosecution and execution of the Conspiracy aforesaid They the said William Archbishop of Canterbury William Bishop of St. Asaph Francis Bishop of Ely Iohn Bishop of Chichester Thomas Bishop of Bath and Wells Thomas Bishop of Peterburgh and Ionathan Bishop of Bristol on the said eighteenth day of May in the fourth year of the Reign of our said Lord the King aforesaid with Force and Arms c. at Westminster aforesaid in the County of Middlesex aforesaid falsly unlawfully maliciously seditiously and scandalously did frame compose and write and caused to be framed composed and written a certain false feigned malicious pernicious and seditious Libel in writing concerning our said Lord the King and his Royal Declaration and Order aforesaid under pretence of a Petition and the same false feigned malicious pernicious and seditious Libel by them the aforesaid William Archbishop of Canterbury William Bishop of St. Asaph Franois Bishop of Ely Iohn Bishop of Chichester Thomas Bishop of Bath and Wells Thomas Bishop of Peterburgh and Ionathan Bishop of Bristol with their own hands respectively being subscribed on the day and year and in the place last mentioned in the presence of our said Lord the King with Force and Arms c. did publish and cause to be published in which said false feigned malicious pernicious and seditious Libel is contained The humble Petition c. prout before in the Petition to these words reasonable construction in manifest contempt of our said Lord the King and of the Laws of this Kingdom to the evil example of all others in the like case offending and against the Peace of our said Lord the King his Crown Dignity c. Whereupon the said Attorney-General of our said Lord the King on behalf of our said Lord the King prays the Advice of the Court here in the premises and due Process of Law to be made out against the aforesaid William Archbishop of Canterbury William Bishop of St. Asaph Francis Bishop of Ely Iohn Bishop of Chichester Thomas Bishop of Bath and Wells Thomas Bishop of Peterburgh and Ionathan Bishop of Bristol in this behalf to answer our said Lord the King in and concerning the premises c. T. Powys W. Williams To this Information the Defendents have pleaded Not Guilty and for their Trial have put themselves upon their Country and his Majesty's Attorney-General likewise which Country you are Your Charge is to enquire whether the Defendents or any of them are guilty of the matter contained in this Information that hath been read unto you or Not Guilty If you find them or any of them Guilty you are to say so and if you find them or any of them Not Guilty you are to say so and hear your Evidence Cryer make Proclamation Cryer O yes If any one will give Evidence on behalf of our Sovereign Lord the King against the Defendents of the matters whereof they are impeached let them come forth and they shall be heard Mr. Wright May it please your Lordship and you Gentlemen of the Jury this is an Information exhibited by his Majesty's Attorney-General against the most Reverend my Lord Archbishop of Canterbury and Six other Honourable and Noble Bishops in the Information mentioned And the Information sets forth That the King out of his Clemency and benign intention towards his Subjects of this Kingdom did put forth his Royal Declaration bearing date the fourth day of April in the third year of his Reign entituled His Majesty's Gracious Declaration to all his Loving Subjects for Liberty of Conscience and that afterwards the twenty-seventh of April in the fourth year of his Reign he published another Declaration both which have been read to you and for the further Manifestation and Notification of his Grace in the said Declaration bearing date the twenty-seventh of April last his Majesty did order That the said Declaration should be read on the twentieth and twenty-seventh of the same month in the Cities of London and Westminster and ten miles about and on the third and tenth of Iune throughout the whole Kingdom and that the Right Reverend the Bishops should send the said Declaration to be distributed throughout their respective Diocesses to be read accordingly But that the said Archbishop and Bishops the eighteenth of May in the said fourth year of his said Majesty's Reign having conspired and consulted among themselves to diminish the King's Power and Prerogative did falsly unlawfully maliciously and scandalously make compose and write a false scandalous malicious and seditious Libel under pretence of a Petition which Libel they did publish in the presence of the said King the Contents of which Libel you have likewise heard read To this they have pleaded Not Guilty You Gentlemen are Judges of the Fact if we prove this Fact you are to find them Guilty Mr. At. Gen. May it please your Lordship and you Gentlemen of the Jury your have heard this Information read by the Clerk and it has been likewise opened to you at the Barr but before we go to our Evidence perhaps it may not be amiss for us that are of Council for the King now in the beginning of this Cause to settle the Question right before you as well to tell you what my Lords the Bishops are not prosecuted for as what they are First I am to tell you and I believe you cannot your selves but observe that my Lords are not prosecuted as Bishops not much less are they Prosecuted for any point or matter of Religion but they are Prosecuted as Subjects of this Kingdom and only for a temporal Crime as those that have injured and affronted the King to his very Face for it is 〈◊〉 to be done in his own Presence In the next place they are not Prosecuted for any Noâ—…easance or not doing or omitting to do any thing but as they are Actors for ceâ—…ring of his Majesty and his Government and for giving their Opinion in Matters wholly relating to Law and Government and I cannot omit here to take notice that there is not any one thing which the Law is more iealous of or does more carefully provide for the prevention and punishment of than all accusations and arraâ—…ents of the Government no Man is allowed to
the Copy that was printed is the true Copy of the Declaration Mr. Att. Gen. He says he had it from Mr. Hills Mr. Finch Pray Mr. Hills what did you examin that Copy by which you gave to Mr. Williams Hills I had the Copy from Mr. Bridgeman Mr. Finch Did you examin it with the Original under the Great Seal Hills I did not examin it I had it from Mr. Bridgeman Mr. Finch What was it under Seal Mr. Bridgeman It was the Original signed by the King. Mr. Finch But I ask you was it under Seal Mr. Bridgeman Not under the Great Seal it was not it was the very Declaration the King signed Sir Rob. Sawyer But it ought to be compar'd with the Original or it is no good proof that it is the same Mr. Sol. Gen. Sir Robert Sawyer you understand Collation better sure you should be asham'd of such a weak Objection as this Williams We never bring our Proof to the Great Seal Sir Rob. Sawyer But if you will have it Proof at Law you must have it compared with the Original Mr. Sol. Gen. Do you think there is any great stress to be laid upon that we only say it was printed Sir Rob. Sawyer But you have made it part of your Information and therefore you must prove it L. C. Iust. I think there 's proof enough of that there need no such nicety Mr. Pollixfen Well my Lord we must submit let them go on we won't stand upon this Mr. Att. Gen. Then pray let me go on Where had you that Paper Sir Iohn Nicholas Sir Iohn Nicholas I had this Paper from the King's Hand L. C. Iust. Put it in Mr. Sol. Gen. Who had you it from do you say Sir I. Nich. From the King. Mr. Sol. Gen. About what time had you it from the King Sir Sir I. Nich. I had it twice from the King. Mr. Sol. Gen. When was the first time Sir Sir I. Nich. The first time was in Council the 8th of this month Mr. Sol. Gen. What became of it afterwards Sir I. Nich. The King had it from me the 12th and the 13th I had it from the King again Mr. Sol. Gen. Pray deliver it this way into the Court We will now go on and prove the Bishops hands to it This is the Paper upon which we bring this Information Gentlemen it is all the Hand-writing of my Lord Archbishop and signed by Him and the rest of the Bishops Mr. Att. Gen. I suppose my Lords the Bishops will not put us to prove it they will own their Hands L. C. Iust. Yes Mr. Attorney their Council will put you to prove it I perceive your best way is to ask nothing of them Mr. Att. Gen. My Lord we will desire nothing of them we will go on to our Proofs Call Sir Thomas Exton Sir Richard Raynes Mr. Brooks Mr. Recorder and Mr. William Middleton Sir Thomas Exton appeared and was sworn L. C. Iust. What do you ask Sir Thomas Exton Mr. Att. Gen. Pray convey that Paper to Sir Thomas Exton Mr. Sol. Gen. Shew that Paper to Sir Thomas Exton Sir Thomas I would ask you one question Do you know the Hand-writing of my Lord Archbishop of Canterbury Sir Thomas Exton I 'll give your Lordship what account I can Mr. Sol. Gen. Pray Sir answer my question Do you know his Hand-writing Sir Tho. Exton I never saw him write five times in my life Mr. Sol. Gen. But I ask you upon your Oath do you believe that to be his Hand-writing Sir Tho. Exton I do believe this may be of his Hand-writing Mr. Sol. Gen. Do you believe all the Body of it to be of his Hand-writing or only part of it Sir Tho. Exton I must believe it to be so for I have seen some of his Hand-writing and this is very like it Mr. Sol. Gen. What say you to the Name do you believe it to be his Hand-writing Sir Tho. Exton Yes I do Mr. Sol. Gen. Do you know any of the rest of the Names that are upon that Paper Sir Tho. Exton No I do not L. C. Iust. Do you for the Defendants ask Sir Tho. Exton any Question Sir Rob. Sawyer No my Lord. Mr. Att. Gen. Then call Sir Richard Raynes Sir Tho. Exton My Lord Sir Richard Raynes has been sick this month and has not been at the Commons Mr. Sol. Gen. We have no need of him Call Mr. Brooks Mr. Brooks sworn Mr. Att. Gen. Pray shew Mr. Brooks that Paper Mr. Sol. Gen. Mr. Brooks I ask you this Question Do you know my Lord Archbishop's Hand-writing Mr. Brooks Yes my Lord. Mr. Att. Gen. Pray look upon that Paper do you take that to be my Lord Archbishop's Hand Mr. Brooks Yes my Lord I do believe it to be my Lord Archbishop's Hand Mr. Att. Gen. What say you to the whole Body of the Paper Mr. Brooks I do believe it to be his Hand Mr. Att. Gen. What do you say to his Name there Mr. Brooks I do believe this Name is his Hand-writing Mr. Sol. Gen. Call Mr. William Middleton Mr. Att. Gen. Pray Mr. Brooks don't go away but look upon the Names of the Bishop of St. Asaph and my Lord of Ely. Mr. Sol. Gen. Do you know my Lord Bishop of St. Asaph's Hand-writing Mr. Brooks I have seen my Lord Archbishop of Canterbury and the Bishop of St. Asaph's Hand-writing and I do believe this is his hand Mr. Sol. Gen. Look you upon the Name of my Lord of Ely do you know his Hand-writing Mr. Brooks My Lord I am not so well acquainted with my Lord of Ely's Writing Mr. Sol. Gen. But have you seen his Writing Mr. Brooks Yes I have Mr. Sol. Gen. Is that his Writing do you think Mr. Brooks It is like it Mr. Sol. Gen. Do you believe it to be his Hand Mr. Brooks Truly I do believe it Sir Geo. Treby Did you ever see him write Mr. Brooks No Sir. Mr. Sol. Gen. But he has seen his Writing Sir Geo. Treby How do you know that it was his Hand-writing that you saw Mr. Brooks Because he own'd it L. C. Iust. How do you know it do you say Mr. Brooks I know it I say because I have seen a Letter that he writ to another person which he afterwards own'd L. C. Iust. What did he own Mr. Brooks Mr. Brooks That he wrote a Letter to another person which I saw Sir Geo. Treby To whom Sir Sir Rob. Sawyer Have you the Letter here Sir Mr. Brooks No Sir the Letter was writ to my Lord Bishop of Oxford Sir Geo. Treby Can you tell what was in that Letter Mr. Att. Gen. What is that to this Question You ask him how he knows his Hand-writing and says he I did not see him write but I have seen a Letter of his to the Lord Bishop of Oxford L. C. Iust. And he does say my Lord of Ely own'd it to be his Hand that is there Mr. Sol. Gen. No my Lord that 's a
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
own Act and Dead It is true if my Lords had published a Paper that was contrived by some of their Council it had been some Excuse and they must have only suffered for that Publication in the place where it was done but they are here for Writing this they have owned in this County and therefore iâ—…â—…es upon them to prove it done elsewhere There is another Objection my Lord made That here is no Evidence of a Publicationâ—… my Lord I take it to be a Publication in it self Is it possible for a man to write a Libell to set his Name and part with it and it coming to the hands of the King that this is not a Publication It is not their saying we did not publish it that will excuse them for can there be a greater Publication in it self than this when men have set their Hands to it and owned their Names what makes the Fact in this Case If a Deed he denied to be factum of such a one what is the proof of it but setting the Hand and Seal and the Delivery There is owning the Paper and setting their Hands is a Publication in it self and therefore they cannot make any such Objection My Lord if there were occasion we have Authorities enough to this purpose and we will give them scope enough if they will argue this matter and if they have any Evidence we desire to hear what they can say to it Mr. Att. Gen. As for this matter of Fact my Lord if I take it right they do not Controvert the Publishing but say they pray make it out where it was written or composed I confess this would be a business worth the while for all persons that act in this manner and are concerned in making of Libels to understand for their advantage no man doubts in the matter of Treason but it is local then put the Case a man is found in Middlesex with a treasonable Paper in his Pocket I do not make a Comparison as if this was such a Paper I hope I am not so understood but I only put it as a Case and that the Law is so is beyond all Controversie then the man is indicted here in Midds for framing and composing such a Treasonable Libell and he comes to be tryed and says he Pray prove where I made and composed it for though you found it in my Pocket in the County of Midds yet I might doe it in the County of York upon my word this had been a very good Defence for Mr. Sidney who was indicted convicted and attainted for making a Treasonable Paper which was found in his Study might not he have put the same Objection might not Mr. Sidney have said it was great pity he did not understand it pray prove where I did it for I did it elsewhere than in this County Mr. Sol. Gen. He did say it I remember Mr. Att. Gen. Truly my Lord I would not hear any Answer given to this for it would make the King in a very woful Case Here is a Paper that is found in the County of Midds and this is there owned by you to be written and subscribed by you pray do you prove it that it was written elsewhere Mr. Serj. Pemb. My Lord we will doe it we will be governed by Mr. Attorney for once Mr. Serj. Levinz We will prove that my Lord Archbishop was not in Middlesex in seven Months before and truly I think Mr. Attorney's Case of a Paper found about a man or in his Custody will not come up to our Case for was this Paper found about us surely that is not pretended Mr. Serj. Pemb. Your Lordship sees by the very frame of the Petition that this Petition which they call a Libell was made after the King's Order concerning reading this Declaration Now we shall prove that my Lord Archbishop whose hand-writing they prove this to be was not out from Lambeth-House in two Months before nor till he was before the Council Sr. Rob. Sawyer Which was long after that time when it was made Mr. Serj. Pemb. So that this cannot be written in the County of Middlesex Call Francis Nicholls Mr. Nicholls was sworn Sir R. Sawyer Do you remember the 18th of May last Mr. Nicholls Yes Sir. Sir. R. Sawyer Pray how was it with my Lord Archbishop of Canterbury at that time and before that did he go abroad Mr. Nicholls My Lord I am very sure that my Lord his Grace of Cant. whom I have served in his Bed Chamber this seven years never stirred out of the Gate of Lambeth House since Michaelmas last Sir R. Sawyer Till when Mr. Nicholls Mr. Nicholls Not till the time he was summoned before the Councill Mr. Serj. Pemb. Now I hope we have given them a full proof that it could not be in Middles Call Thomas Smith Mr. Smith was not examined Mr. Finch Truly my Lord I think that what we have proved or what Proof we further offer of my Lord of Canterburies not being in Middlesex for so long a time is ex abundanti and we need it not for with humble submission in point of Law it is incumbent upon them that are to prove the Charge in the Information to prove where it was done because the Locality of it is part of the thing they ought to prove it in it's nature it is local there is a Place assigned in the Informâ—…ion and unless they prove it was done in the Place that they have laid they have not proved the Charge in the Information Now my Lord they have not made any Proof of that and for proof of Publication I think they have offered none to your Lordship they never did call it so yet and truly I never did hear or know that the owning of their Hands at the Council-Table was a Publication of a Libel it is owning the Writing but it is not an owning where the Writing was made but where it was written and where it was made is of necessity to be proved before the Charge upon a Record in a Court of Justice can be said to be made out it is a Local Charge and in Justice the locality must be proved or the Information fails my Lord they have offered no Proof to it and they have not yet gone to the second part of the Information for as to the Publication of it there is not a tittle of Proof offered but only the owning of their Hands upon their Examination at the Council and no Man did ever yet think that the answering a Question and owning a Paper at the Council-Table upon a Question put by the King himself was a Publication of a Libel Mr. Serjeant Baldock Pray my Lord hear me a Word to that Though the thing be never so local yet there must be some place where a thing that was done was done Then if nothing else appears but what was done in Westminster in the County of Middlesex unless they shew the contrary that must be the very
have been in Surrey or otherwise they must hold that the Answer to the King's Question this is my Hand is a Publication But truly my Lord I think neither of these will do But my Lord to me this is a great Evidence in it self against the Proof of a Publication the Care and Wariness that has been used that there should be nothing at all of this Matter known from the time that it was written to the time that they came to be examined and summoned to appear as Offenders My Lord the Nature of Libels is to publish and proclaim Scandal and Defamation or else it loses its End and consequently its Name This as it stands upon their Evidence is a monstrous Proof for my Lords the Bishops against the King's Council for it seems 't is a very private Matter so cautiously and warily carried that there is not any Evidence of the Fact but only the Names of the persons that writ it till they come to be examined by the greatest Authority Is this your Hand and then they own it so to be how can this be taken to be a Publication and it will be a thing of wonderful Consequence if an Answer to a Question put by Authority should amount to a Crime as it would in this Case that would be as if Authority that should be employed to do Right would be turned to do the greatest Wrong for it is the Duty of all men to answer when examined by a lawful Authority and it would never be offered at sure in any other Case If a Man comes before a Magistrate and confesses any thing that indeed is Evidence but is not a Crime for there is a great deal of difference between Evidence and the Crime but that this should be both an Evidence and a Crime too is I think a very strange Construction and for the other part the writing of it I suppose the Court is satisfied that it was in another County Sir Geo. Treby I desire your Lordship to spare me a Word which I think has not been observed by the Council that have spoke before The Question that remains is Whether my Lords the Bishops did Publish this Paper This is a matter of Fact that lies upon the Prosecutors to prove Now I think they are so far from having proved that the Bishops did publish it that on the contrary they have proved that their Lordships did not Publish it The Evidence they have offered for this matter is a Confession This Confession is testified by Mr. Blathwayt and he says the Bishops were ask'd at the Council whether they did subscribe and publish this paper and that their answer was that they did subscribe but not publish it Now a Confession must be taken together and must be admitted to be intirely true by them that produce it they shall never be allowed to take out and use one piece and wave the rest Why then by this Evidence of Confession taken as it ought it appears that the Bishops though they did subscribe did not publish the paper So that I say the King's Counsel have hereby plainly proved that the Bishops did not publish this paper and yet this is the onely Evidence upon which they would infer that they did publish it Mr. Att. Gen. Look you it does lie upon you Gentlemen to prove it was done elsewhere than in Middlesex Mr. Finch Sure Mr. Attorney is in jest Mr. Att. Gen. No I am in good earnest all the proof that we have given has been in Middlesex and you can best tell whether you did it in Middlesex or no. Mr. Finch My Lord we have done as to this Objection for we say they have not proved their Case L. Ch. Iust. Mr. Finch you may observe and I am sure you do observe as well as any body in all Cases but I say you may observe that they are off of every thing but causing it to be published now that does lie upon the King's Counsel to prove that my Lords the Bishops did cause it to be published for their owning of their hands does not amount to a Publication Mr. S. Pemberton My Lord We are upon this point with them whether here be any Evidence of a Publication at all Mr. Iust. Powell Pray let us clear this first for if there be no publication there can be no causing of it to be published Mr. Att. Gen. My Lord if you think fit we shall go on and reserve this point till afterwards Mr. Sol. Gen. They may make Objections if they think fit L 〈◊〉 Iust. So they may and they say if these Objections are with us we need go no farther Mr. S. Pemberton But my Lord if they be not with us we have a reserve to give a farther Answer to it and to offer Evidence against the Evidence they have offered Mr. Sol. Gen. With all our hearts give in Evidence what you can Mr. Att. Gen. Then pray my Lord let us go on to answer this Objection L. Ch. Iust. Pray do Mr. Attorney Mr. Att. Gen. My Lord and Gentlemen of the Jury I would first observe how far we have gone That there was such a paper written is clear beyond all question and written by my Lord Archbishop of Canterbury and that it was signed by the rest of the Bishops but not in the County of Middlesex and that this paper was published is agreed on all hands Mr. Iust. Holloway No they do not agree that Mr. Att. Gen. Do I say it was published by them but there was such a paper published Mr. S. Pemberton No we say it was never published at all L. Ch. Iust. Pray Brother Pemberton be quiet if Mr. Attorney in opening does say any thing that he ought not to say I will correct him as I would do any body that does not open things right as they are proved but pray don 't you that are at the Bar interrupt one another it is unbecoming men of your Profession to be chopping in and snapping at one another Go on Mr. Attorney Mr. Att. Gen. I say that the Paper is proved to be written and signed by my Lords the Bishops that I take for granted and that the Paper so signed and written is now published to the world is also evident but the question is who it was done by or who caused it to be done we are reduced to that question Now first it is agreed on all hands that if I send a Letter to a private Man containing Scandalous things in it though there is no proof more but that it was sent sealed and received by the party in that Case it was a fault punishable in the Star-Chamber as a Crime but now that this was received by the King and written by them there is no room for doubt for you hear it was produced by the King at the Council-Board and they asked upon it if it were their hands that the King did receive it there is no room for question or that they did write it but
spoke Brother Pemberton and I would willingly hear you what you have to say but we must not have vying and revying for then we shall have no end Mr. Serj. Levinz I would offer your Lordship some new matter which has not been touched upon yet why it is not to be Read. L. C. I. What 's that Brother Mr. Serj. Levinz All the proof that has been given whatsoever it amounts to has been only of its being Written but no proof has been given of its being Written in the County of Middlesex where the Information is laid and the matter is Local Mr. Sol. Gen. First Read it and then make your Objection Mr. Recorder My Lord as to the Evidence that has been given I would only put your Lordship in mind of one Case and that was the Case of Sir Samuel Barnardiston and the great Evidence there was the proof of its being his Hand-writing and that being proved was sufficient to Convict him of a Libel for they could not believe Sir Samuel Barnardiston was Guilty of making Libels unless they were proved to be his Hand-writing Sir Robert Sawyer He owned them to be his Hand-writing L. C. I. If you do expect my Opinion in it whether this be good Evidence and whether this Paper be proved or no I am ready to give it Mr. Finch My Lord I desire to be heard before the Opinion of the Court be given Mr. Sol. Gen. If there be not proof enough to induce the Jury to believe this is their Paper yet sure there is enough to Read it Sir Robert Sawyer My Lord we have not been heard to this yet Mr. Sol. Gen. Why is this fit to be suffered L. C. I. Mr. Sol. I am always willing to hear Mr. Finch Mr. Sol. Gen. But I hope your Lordship and the Court are not to be Complemented into an unusual thing Mr. Serj. Pemberton It is not a Complement but Right and Justice Mr. Sol. Gen. Certainly it is Right and Justice that there should be some limits put to Men's speaking that we may know when to have an end Sir Robert Sawyer Mr. Sollicitor does mistake the right my Lord for we desire to be heard to this Point as not having spoke to it yet Mr. Sol. Gen. Pray Sir let me make my Objection to your being heard for I believe you and I have been chid several times for speaking over and over the same thing Sir R. Sawyer This that we now offer iâ—… not to the same Point that we have spoken to already Mr. Sol. Gen. We are now speaking to the Reading of the Paper and you have spoken to it already Sir R. Sawyer If the Court will please to hear us we have that to offer against the Reading of that Paper which has not been offered yet L. C. I. Sir Robert Sawyer I take it it is in the Breast of the Court â—…o heâ—… when they will and as much as they will and whom they will for if Three or Four have been heard of a side to speak what they will the Court may very well depend upon the Learning of those Three or Four that they say what can be said upon the Point and that 's enough but if Six or Seven desire to be heard over and over to the same thing certainly the Court may stop at Three or Four if they will. Sir R. Sawyer This is a new Objection that none of us have been heard to yet Mr. Finch My Lord that which I offer is not contrary to the Rules of Law nor contrary to the Practice of the Court nor was I going any way to invade that Priviledge which Mr. Sollicitor claims of making Objections and not receiving an Answer Mr. Sol. Gen. What a fine Declamation you have now made I never claimed any such right but I oppose your being heard over and over to the same thing Mr. Att. Gen. Pray my Lord let 's come to some Issue in this matter L. C. I. I will hear you but I would not have you introduce it with a reflection upon the King's Council Mr. Sol. Gen. My Lord if you impose that upon him you stop his Mouth for some Men cannot speak without reflection L. C. I. On the other side pray Mr. Sollicitor give us leave to hear fairly what they have to say for I perceive he cannot offer to speak but you presently stop his Mouth Mr. Finch My Lord that which I was going to say is another matter than any thing that has been yet offered We say that this Paper ought not to be Read for that they are obliged by Law to prove their Information and consequently having laid a particular place where the thing was done in the Information they ought to prove that this was done in that place The Evidence that they have given is of my Lords the Bishops Writing this Paper and they have laid it to be done in Middlesex and this with submission to your Lordship is local and they must prove it to be Written in Middlesex where they have laid it or else they fail in their proof This is another Objection which as yet hath not been spoken to That if there be a proof of their Hand-writing yet there is no proof where that Hand was Written and therefore they are not yet got so far as to have it Read against my Lords Mr. Att. Gen. For that Point my Lord we say This would have been as properly said after the Paper had been Read when they come to make Objections against our Proof by way of Defence and with submission it had been more proper then than it is now For what are we now doing My Lord we are Proving that such a Paper was Subscribed by my Lords the Bishops and Sir Iohn Nicholas gives you an Account that he had it from his Majesty at the Council and that certainly is in the County of Middlesex and iâ—… will concern you to Prove that it was Written elsewhere Mr. Serj. Pemberton That 's very well Mr. Attorney sure you do not think as you speak Mr. Att. Gen. Here is a Paper Composed and Written by you that Sir Iohn Nicholas says he had from his Majesty how he came by it I suppose you will tell us by and by this is your Hand-writing that I think we have proved sufficiently this is found in the County of Middlesex and you come and tell us that we must Prove that it was Written in the County of Middlesex and it is taken to be Written where it was found unless you Prove the contrary Mr. Serj. Pemberton That 's pretty Doctrine indeed and very new Mr. Sol. Gen. My Lord here 's an Objection made too timely we are now upon Reading of this Paper and the Question is Whether it shall be Read or not be Read. Surely we have given Evidence enough to induce the Court to Read it and it is another Question that will come time enough afterwards Where it was Writen L. C. I. Truly I do not think it
God's House and in the time of his Divine Service must amount to in common and reasonable Construction Your Petitioners therefore most humbly and earnestly beseech your Majesty that You will be gratiously pleased not to insist upon their Distributing and Reading your Majesties said Declaration And Your Petitioners as in duty bound shall ever pray c. Mr. Att. Gen. My Lord we shall leave our Evidence here and hear what they can object to it Mr. Finch Have you no farther Evidence Mr. Attorney Mr. Att. Gen. We leave it here for the present Mr. Sol. Gen. The Gentlemen of the Jury desire to see the Petition L. Ch. Iust. Shew it them The Petition was shewn to the Iury. Mr. Finch But will you give no farther Evidence Mr. Attorney Mr. Att. Gen. I tell you we 'll leave it here till we see what you say to it Mr. Finch There is nothing that we should say any thing to Mr. Att. Gen. Make your Advantage of it if it be nothing we can have nothing L. C. Iust. What say you for the Defendents Gentlemen Mr. Finch My Lord in short we say that hitherto they have totally failed for they have not proved any Fact done by us in Middlesex nor have they proved any Publication at all Sir Robert Sawyer They have given no Evidence of any thing L. C. Iust. Pray Gentlemen speak One at once and then we shall understand the better what we hear Sir R. Sawyer My Lord We say they have given no Evidence of the Conspiring Writing or Pulibshing in Middlesex Nay as to the Publication there is none at all proved Mr. Finch Here is no proof of any Publication nor of the writing or making in Middlesex so that there is no proof at all against my Lords the Bishops L. C. Iust. You heard what Mr. Blathwayt said they owned it in Middlesex Mr. Finch That is not a Publication sure or any Evidence where it was done Mr. Serj. Levinz Suppose my Lord that I own in Middlesex that I robb'd a man in Yorkshire will that make me guilty in Middlesex Mr. Sol. Gen. But if you had stole a Horse in Yorkshire and had that Horse in Middlesex and owned it I doubt it would go hard with you in Middlesex Mr. Sol. Gen. Mr. Serjeant thinks he has put a very home Comparison but we shall shew how little significant it is by and by Mr. Serj. Levinz My Lord in the first place we insist upon it here is no proof in this Case at all as to the doing of any Fact at all in the County of Middlesex In the next place this Information and Petition do not agree for they have brought an Information and set forth That my Lords the Bishops under pretence of a Petition did make a Libel and they have set forth no Petition at all all the Petitionary part is omitted If I will take part of a man's words and not the whole and make a Libel of that part certainly that is very disingenuous and injurious For that part that I omit may alter the Sense of the whole They here ought to set forth the Petition with the Direction to the King and the Prayer at the end whereby it will appear what the whole is and what was desired by their Petition But my Lord to make this matter a little more clear whatsoever they say of its being my Lord Archbishop's Hand we shall prove that if it were so it could not be done in Middlesex for we shall prove that my Lord of Canterbury had not been in Middlesex for three or four Months before Sir Robere Sawyer Pray let the Information be read then you will the see variance Mr. Att. Gen. There is not the latter part we acknowledge in the Information Mr. Sol. Gen. There may be and is a sic Continetur and there is no Objection in that at all L. C. Iust. It is sic Continetur and that 's Sir Rob. Sawyer The truth of it is this Information has made a very deformed thing of it has left it neither Head nor Tail they style it a Petition but it is without any Direction to any body and without any Prayer for any thing and without those two it cannot be told what it is Mr. Iust. Allybone Sir Rob. Sawyer if I mistake not it is said only under pretence of a Petition Sir Rob. Sawyer There may be more in the Paper than in the Information and if all were in one part might explain another Mr. Sol. Gen. So there may be more and I wonder to hear that Objection from Sir Robert Sawyer who has exhibited so many Informations for Libells in piâ—…es taken out of Books Mr. Recorder All that we alledge in the Information is contained in the Paper and that 's enough for our purpose we are not bound to recite the whole L. Ch. Iust. Indeed I think it is no material Objection at all Mr. Serj. Pemberton Truly I think it is very material in this Case here 's a Petition that is preferred to his Majesty take the whole Petition together and say they it is a reasonable Petition chop off the Direction and the Prayer and then here 's nothing but the body of a Petition without beginning or ending or if a man will say any thing concerning the King and doe it by way of Petition to himself that will alter the Case mightily from a Paper spread about that should contain only the body of a Petition and nothing else Sir Rob. Sawyer Pray read that part of the Information Mr. Pollixfen If so be there be an Information and that Information charges a man with a pretended Petition and the Evidence comes and proves a Petition both top and bottom that is not the Petition in the Information for that lacking the proper parts of a Petition is called a pretended Petition but that which is proved is a real one Serj. Baldock My Lord there is nothing in this Objection as this Record hath it Mr. Att. Gen. Pray my Lord give us leave to state it on our side as they have done on theirs and it will be the better understood upon the reading I hope it is not come to that pass that they would have it sure these Gentlemen have not forgot altogether the practice that has been so frequent in this Court if there be an Information for a Libell Is there any thing more frequent than only to recite the material part Sure they may say in such a Libell is contained so and so without setting forth the whole Book Mr. Sol. Gen. How many Tryalls have we had here wherein there has been only a Clause taken out of a Book as particularly Baxter's Bible and Iohnson's Book and all by virtue of a sic continetur Mr. Finch That comes not up to our Objection here Mr. Iust. Powell Let us hear the Record read and then we can judge of it Sir Rob. Sawyer We pray Sir the Information may be read Mr. Att. Gen. We are here
upon all Occasions chopp'd in upon and I do not know how they come to take this Liberty I am sure other people had it not in former times when these Gentlemen stood where we do as soon as ever we offer to speak presently there are two or three upon us L. Ch. Iust. Let me hear them Mr. Attorney make their Objection and let the Record be read and that will answer that Objection Mr. Att. Gen. My Lord as for that other thing they come and tell us we have set forth a Petition we say no such thing in the Information we say you composed a certain Libell pretensâ—… Petitionis in which are contained such and such things and now I pray let it be read Mr. Sol. Gen. Pray my Lord hear me a little first Take the Information as we have laid it and I believe there are twenty Presidents that I could give you in an instant of late days practice so was the Information against Mr. Baxter so was the Information against Mr. Iohnson so was the Information against Doctor Eades and so was the Information against Sir Samuel Barnardiston They are all in this form sic continetur so that as for that matter we are well enough But here 's another thing say they You do not set out the Petition we say it is a Libell and it is not the Name we rely on but there is such a Libell so we in our Information call it if it be not a Libell then are they very innocent and whether it be or no is now in Judgment before your Lordship but if it be as we say then it is not the speaking ill things in the body of a Petition and then giving it a good Title and in concluding it with a good Prayer at the end of it 't is not I say any of these that will sweeten this Crime nor alter nor alleviate it at all if there be that which is Seditious and Libellous in the Body of it call the Paper what you will and smooth it with a Preamble or a Conclusion that will not make it any thing less a Libell these things are plain and manifest We say there is such a thing done a Libell made pretensâ—… Petitionis do you call it what you will but we say these and these things are a Libell upon the King and the Government We have proved our Case we have proved there was such a Paper under their Hands we have proved it was owned in Middlesex and then we are in your Judgment whether this be not Evidence sufficient to convict the Defendents L. Ch. Iust. But they do make an Objection about the Writing and Contriving of it that it is not proved to be in Middlesex Mr. Serj. Trinder My Lord our Information does not go with a continued Clause that they framed a Libell ut sequitur in haec verba but we only say they made a Libell pretensu Petitionis and then we say In quo quidem Libello continetur so and so we do not tie our selves up to a particular Recital of all that 's in the Paper L. Ch. Iust. Read the Record Clerk Reads Ipsi iidem Willielmus Archiepiscopus Cantuariensis and the rest dicta decimo octavo die Maii Anno Regni dicti Domini Regis nunc quarto supradicto vi armis c. apud Westmonasterium praedictum in Comitatu Middlesexiae praedicto ilioite malitiose seditiose scandalose quoddam falsum fictum pernitiosum seditiosum Libellum in scriptis de eodem Domino Rege Regall Declaratione Ordine predictis pretensu Petitionis fabricaverunt composuerunt scripserunt fabricari componi scribi causaverunt eundem fâ—…lfum fictum malitiosum pernitiosum seditiosum Libellum per ipsos praedictos Willielmum Archiepiscopum Cantuariensem and the rest manibus suis propriis respective subscriptum die anno loco ultimo mentionatis in proesentia dicti Domini Regis nunc vi armis c. publicaverunt publicari causaverunt In quo quidem falso ficto malitioso pernitioso seditioso Libello continetur The humble Petition of c. Mr. Serj. Levinz It is quite another thing that which is produced from that which is in the Information by this leaving out a part for here is the Prayer omitted and the Direction Mr. Sol. Gen. Then my Lord I think there is nothing in the Case but this mighty Objection of the County and says Mr. Serj. Levinz if my Country-man Confesses in this County that he stole a Horse in Yorkshire you shall not try him in London but in Yorkshire because by his own Confession the Fact is in another County Mr. Serj. Levinz I did not put the Case so Mr. Sol. Gen. But take the Fact of the Case as it is here my Lord the Bishops come in Middlesex and own this Paper my Lord Archbishop owns it to be his Writing and the rest of the Bishops own their Hands if they had done as Mr. Serjeant's Yorkshire-man did and said we own we did this but it was in the County of York then it would have been like the Case that these Gentlemen put but here we are in a plain Case of another nature my Lord Archbishop comes here in Middlesex and owns that he writ the Paper the other Bishops they signed it now it does lie certainly in their knowledge where this was done and they should have declared then but they have owned it as their Paper and the signing and writing of it which is enough for us Mr. Finch I own this to be my Paper therefore I writ it in the County of Middlesex Is that a Consequence I am very glad they are no better at their Inferences Mr. Sol. Gen. They have owned the thing in Middlesex that we insist upon and they have not owned it with any qualification if they had said it was done in another County then you must have taken it to be as they said it then if they do not distinguish the place of the Fact your Lordship can only take it to be where they owned it it would be supposed to be done in that place for when they owned the Fact it will be supposed if they do not say where it was done that it was done where they owned it because the King cannot tell where it was done but the Evidence comes out of their own mouths they may give satisfaction where it was done for they know it and till that be done the Supposition is against them that it was done in the place where they owned it and that is a plain Case wheresoever a man is to speak of his own Fact. Indeed if I publish the Writing of another person which is Libellous then there must be a particular proof of the place because it is flot my own Fact but if those Lords publish a Libell that they make themselves it is in their own knowledge and in their own power to tell where it was done because it is their
place where it was done Mr. Sollicitor General Here is a great deal of Prevarication in this matter and I would observe to your Lordship how they do use the Court ill in it pray my Lord What is it we are upon we are proving that these seven Lords the Bishops signed this Paper and I think we have proved it sufficiently out of their own Mouths But say they it was not signed in the County of Middlesex but in the County of Surrey All this is but Imagination and they would have the Court to imagine it too For how do they prove it They would have your Lordship and the Jury believe That it was signed elsewhere because my Lord Archbishop has not been out of his House in some Months before it is all but Inference and Argument and Imagination But still Gentlemen do you answer what I objected to you Does it not lie in their Power to shew where it was signed Here are six more besides the Archbishop where was it signed by them Here are six of the Bishops that it does not appear where they signed it but they confess at White-Hall in Middlesex that they did set their Hands Mr. Serjeant Levinz Ay they did so and what then Mr. Solicitor General Ay and ay too if they did so the Presumption and Common Intendment upon such Evidence is That is was done in the Place where it was owned and the rather for that Reason that I said before That it lies in their Knowledge and therefore it is incumbent upon them to prove That it was not in the County of Middlesex So that this Objection I take rather to be an Invention of the Counsel than the Truth of the Fact because they that can make this out do not And as to what they say of my Lord Archbishop That he has not been out of Doors for so long who can prove such a thing Certainly my Lord was able to come for any thing that appears he has been here twice and he was able to come to the Council-Board But when all is done my Lord Archbishop is certainly able to put this matter out of doubt for he may easily prove it if the Fact be so and that will satisfie the Court and every Body That it was signed by him at Lambeth if he designs to deal sincerely with your Lordship and the Court and the Jury but certainly it is not to be proved by a Circumstance such a one as this is but he ought to give your Lordship and the Jury Satisfaction about this Fact He ought to say 'T is true I did sign it but it was at Lambeth-House that indeed would be a down-right Stroke to us But to go upon a Supposition That because my Lord Archbishop was not out of his House for so long together therefore they are all not Guilty is a very hard and foreign Inference My Lord there 's another Matter that they insist upon and that is about the Publication that is as plain as any thing can be that here is a full Proof of a Publication for if the Paper be Libellous where-ever that Paper is that is a Publishing where-ever the Paper travels how far soever it goes it is a Publication of it by these Persons that signed it I believe no body thinks that this should fly into the King's hand but some body brought it to him and certainly my Lord if your Opinion should be that this Paper is Libellous then where ever it is it is a Publishing which is our offence where-ever it is found it is a Publâ—…tion for there is the mistake of these Gentlemen they fancy that unless there was a Publick Delivery of this Paper abroad nothing can be a Publication but I rely upon it they setting their Names to it made it their Paper and where-ever it was afterwards found that did follow the Paper where-ever it went and was a Publication of it it was in their Power being their own Contrivance it was made and formed by themselves and no body will believe when it was their own Hands that they put to it that any body else could have any power over it for ought appears no body else was at work about it and when there were so many Learned Prelates that had signed such a Paper no one can believe they would let it go out of their Hands but by their Consent and Direction Is not this a Proof of the Publishing Do they give your Lordships any Evidence that they had stifled this Paper If they had so done they had said something but will any body believe that this thing was done in vain Can any body assign a Reason why so solemn a thing as this should be done to no end and purpose Why a Paper should be framed that rails at the Kings two Declarations Why a Paper that gives Reasons why they could not read it in their Churches and signed with such Solemnity by all these Noble Lords we submit this to you in point of Law and the Law is plain in it that if this Paper be Libellous and it is found in the County of Middlesex there is a Publication of that Libel I shall mention to your Lordship that Case of Williams which is reported in the Second Part of Roll's Reports Mr. Finch made use of it in the Case of Sidney it was the great Case relied upon and that guided and governed that Case as I apprehend from the Verdict and Judgment that was given in it This Case was 15 Iacobi It seems Williams was a Barrister of the Inner-Temple and it seems being an high Catholick for Opinion and Judgment he was expelled the House and he being so expelled being a sort of a Vertuoso wâ—…ote a Book called Baalam's Ass and therein he makes use of the Prophecy of the Prophet Daniel and he makes Application of it according to his own particular fancy He writes there That this World was near at an end and he said Those ill days were come that that Prophecy had spoken of and because of the Impurity of Prince and Priest and People and other things that happened those were the worst of days and therefore the last and that certainly we had the worst Prince that ever was in the World when he wrote this Book what does he do He was a little more close than my Lords the Bishops and pins it up or seals it up and it was brought to the King and what is this more than the Case before your Lordship They indeed say I do this by way of Advice to the King so said he I do this by way of Advice to the King for God forbid that any of this should happen to the King and so what he does was by way of Advice and he prayed God to avert it from him here was as good a Prayer as there is in this Paper and there was a good design he made use of the Prophet Daniel and applied his words Well what was done upon it This was
never published for the Question was before the Court whether this Sealing of it up and not delivering it to any other body were a Publication the Court was of Opinion that the very Writing of it was a Publication they did not value the delivery of it to the Prince but it was proved he Writ it and that made it Treason My Lord we have Cases enough in my Lord Hobart for this Matter Sir Baptist Hick's Case and my Lady Hattâ—…n's Case there was only a Letter sealed up and delivered to the Party L. C. I. You need not trouble your self about that Mr. Solicitor Mr. Sol. Gen. If the Case then be thus I take it it will turn upon this Fact they have given your Lordship no Proof where this Paper was Signed by them here are seven Persons that had a hand in it and here is only one Person whom they have insisted to be infirm and kept his House for a great while together We say the Publishing follows the Libel where-ever it goes the Libel is in the County of Middlesex they have confessed it in the County of Middlesex and they did not distinguish where it was done Then if they will not distinguish upon the Evidence no Man ought to distinguish but ought to presume it was done in that place where they owned it Mr. Attor Gen. I did not apprehend we were got so far that they Opposed us in the Publication Sir Rob. Sawyer Yes we did for you have given no Evidence of it Mr. Attor Gen. Surely my Lord for that we have give a sufficient Evidence and they have given some Proof of it as to my Lord Archbishop that because he had not been from Lambeth therefore he did not publish nor could cause it to be published for your Lordship sees by this Information they are not only to answer the Publicavit but also the Publicari causavit for do you doubt Gentlemen of the Law in this Case that if I compose a Libel in Surrey for Example and send a Person over into Middlesex I am not Guilty of the Publishing Sir Rob. Sawyer That is not your Case Mr. Attorney Mr. Finch That were clear if it were so but it is not so Mr. Attor Gen. My Lord Archbishop's Case signifies nothing if we shew it was published in Middlesex and you give no Evidence to the contrary but it might be there and I am sure as to the rest of my Lords the Bishops there is no Evidence at all given Here is a Petition that we say is a Libel they it may be will make that a Question this is delivered to the King 's own Hand in the County of Middlesex and there are as many Cases as any one Man can name that this amounts to a Publication by the Party for if I send a Letter by the Post sealed that no body can see but the Party himself and he that writ it it is adjudged over and over again it is a Libel Mr. Justice Powel That you need not labour Mr. Attorney for that 's the Case of Williams of Essex but how do you apply it to the Case now before us Mr. Attor Gen. That 's an Answer to their Objection as to the Publication Mr. Justice Powel But what say you to the first part you have not proved that it was written in Middlesex Mr. Attor Gen. There is the Case of Barrow and Lewellin in Hobart and likewise the Case of Sir Baptist Hicks which is reported both in Hobart and in Popham and in Popham towards the end of the Case there is a remarkable Passage Says that Case If it should not be punishable at the Suit of the King there would be no Remedy for the Party cannot bring an Action because he can be no Witness for himself and it is only known betwixt them two but a Witness for the King he may be to prove his own Receipt of the Letter and the Party's Hand Mr. Justice Powel You need not labour that Point I 'll tell you Mr. Attorney for the Law is very clear in that Point I think if you bring it home to your Case Mr. Attor Gen. Then here 's the Case in short my Lord That my Lords the Bishops have caused to be made and written this Petition they are made Parties to it by setting their Names and this is a continued Act whatsoever is written there is my Lord Archbishop's Writing where-ever it goes as I 'll put you a Case that 's very well known If I take away Goods from a Man in the County of Cumberland and I am found with them in the County of Middlesex it is a continued Act and makes all but one Felony and I shall be Tried here in Middlesex for it If a Man write a thing in one County and it is sent and dispersed in another County that still continues to be his Fact though it may be the first part was not in the same County with the other but suppose all this while that part should not affect my Lord of Canterbury the causing it to be Published does Mr. Justice Powel Do you think Mr. Attorney that writing in one County is such a continued Act that he may be said to write it in another County Mr. Attor Gen. Sir I take it where there is a complicated Crime of Writing and Publishing a Libel and the beginning of it is in one County and the carrying it on is in another that is a continued Act and may be Tried in either County L. C. I. It is all one Act of Libelling as they say Mr. Iust. Holloway In Cases of Felony 't is so taking in one County and being found with the Goods in another it is Felony in either County Mr. Iust. Powel But in that Case they are two Felonies for it is Robbery in the one County and but bare Felony in the other Mr. Sol. Gen. Suppose that my Lords the Bishops Signed this Paper in another County and my Lord Archbishop consents to have it sent into Middlesex is not this a causing it to be published in another County Mr. Iust. Powel Yes it may be if you prove his Consent Mr. Sol. Gen. Then suppose further which may very well consiâ—…t with my Lord Archbishop's Evidence of his not being out of Lambeth in so long time the rest of the Bishops might sign it in Middlesex or it may be in that Place and then they carry it by my Lords consent over hither into this County is not this a causing it to be published the Delivery with his Consent certainly is a Proof of that for our Information goes two ways For Making Contriving Writing and Publishing that 's one And then For causing it to be Made Contrived and Published that 's the other And if I prove that he caused it to be published he may be found Guilty as to that part and not Guilty as to the other for the Information is not so intire but that the King has his choice if the Archbishop had
not signed it or written it but had caused it to be published he may be found guilty of so much But if he be Guilty of any one of these things it is enough and if he be Guilty of none of the other things laid in the Information yet if he be Guilty of causing it to be published by his consenting that the rest of the Bishops should do it that will be enough to maintain this Information Then my Lord is there any Evidence brought against what we have proved That he did not consent Mr. Just. Powel But where was this Consent of his given Mr. Solicitor Mr. Sol. Gen. Pray good Sir give me your Favour I think I am in a plain Case Mr. Serj. Pemberton So you are truly Mr. Sol. Gen. Why good Sir you ought to make out the Locality if you 'l take advantage of it Mr. Serj. Pemberton That 's very well indeed this is the first time I ever heard that Doctrine Mr. Sol. Gen. I cannot help that but certainly the Law is plain we have proved there was such a Fact as this done and they do not go about to prove that it was done elswhere than where we have laid it for if they did their Witnesses would be cross-examined by us and then we know what would become of them then the Truth of the matter would come out Therefore I would make all this constare The Archbishop might be at Lambeth and yet Guilty in Middlesex by his Concurrence with what was done in Middlesex And I say my Lord this is natural upon the Evidence that has been given because when they were interrogated at the Council and confessed the Paper to be theirs they made no such Explanation of their Confession of which they can make any Advantage in their Defence Here has been no Body produced that proves any thing to be done out of Middlesex so that still if he 's Guilty of the Fact proved he must be Guilty in Middlesex Serjeant Baldock And it does not appear in this Case but that my Lord Archbishop might write the same thing in Middlesex tho' he was at Lambeth so long as the Witness speaks of Mr. Just. Powel How do you make out that Brother Serj. Baldock He might do it when he câ—…me over to the Council Sir Rob. Sawyer He must do it after it was presented Serj. Baldock Might he not be so long here on this side the Water as to make such a short thing as this before it was delivered half a quarter of an Hour would have done it L. Ch. Iust. That 's a thing not to be presumed Brother especially since he is proved not to have been in Middlesex for so long together Sir Rob. Sawyer Mr. Serjeant is mightily mistaken for it is not pretended That it was delivered at the time when the Archbishop and my Lords the Bishops were before the Council Mr. Recorder Either the Making and Contriving or the Publishing of this Libel will do upon this Information for they shall be taken to be one continued complicated Act and then the Party may be tryed in either of the Counties as the King will as in the case of Treason it has been over and over again adjudged That if a Man does one Act of Treason in one County and afterwards goes into another County and does another Act of Treason the Jury of either of the Counties may enquire of the Fact done in the other If they then should take those two as several Acts they were several Offences and they may be found Guilty of the one and acquitted of the other but if they are taken as one continued Act they are but one Offence and the Jury of either County may try it If then in this Case the Jury of this County may take notice of the Publication which was here as certainly they may if they will agree as the Law certainly is That the Writing of a Letter will be a sufficient Publication if the matter be Libellous And there are multitudes of Precedents for that and that the bare setting of a Man's Hand has been adjudged to be a Publication Then give me leave my Lord to bring it to a similar Case Suppose a Man write a scandalous Letter from London to a Judge or Magistrate in Exeter and sends it by the Post and the Letter is received from the Post at Exeter and there opened would any Man make a Question whether the Gentleman that sent the Letter may not be indicted and prosecuted for a Libel at Exeter where the Libel was received Mr. Just. Powel There 's no question of that Mr. Recorder that comes not home to the Fact in our Case undoubtedly in the Case that you put the Law is as you said but it is far different from this Case L. Ch. Iust. There 's no Body opposes the Publication but the framing of it where it was made Mr. Recorder Supposing then the Party were at Exeter and he were interrogated before the Magistrate Whether that were his Hand or no and he should own it to be his Hand can any body doubt whether his owning that to be his Hand would be a sufficient Evidence to prove a Publication Mr. Just. Powel But is that any Evidence where it was written Or if it be not proved that it was received at Exeter would that be a Proof of a Publication at Exeter L. Ch. Iust. They do not deny the Publication Sir Rob. Sawyer We do deny that there was any Publication and they have proved no place where it was made Mr. Sol. Gen. My Lord we are not for turning my Lords the Bishops out of the way of Proof that is usual in such Cases let them take it if they will That this was contrived and made in Surrey But can they publish it in Middlesex without committing an Offence and that is it we stand upon We are not for laying a greater Load upon my Lords the Bishops than our Proof will answer Sir Rob. Sawyer We thank you for your Complement Mr. Solicitor Mr. Sol. Gen. Is this a fare way of interrupting us when we are speaking Durst any one have served you so when you were in the Kings Service We would make our Duty as easie as we can to my Lords the Bishops and it may be easier than other Men would have made it But my Lord let it be a doubtful case that we cannot tell which County it was made and contrived in if it were made and contrived in another County yet when they brought it into Middlesex there was a Publication in Middlesex and if my Lord of Canterbury consented to it and if he caused it to be published how can any Body ever get him off from that causing of it to be published Here is a Paper that must be supposed to be my Lord Archbishops Paper Now either the World must look upon it to be an Imposture put upon my Lords the Bishops or a real Paper made by them If it were an Imposture
the question is from whom the King had it I am sure they must shew that some body else did it and unless they doe show that I hope there is no manner of question but it came from them and they did it though no man Living knew any thing of this matter but whom they thought fit to communicate it to yet still they putting the King upon the necessity of shewing this Power in order to his obtaining satisfaction for it or else he must remain under the indignity without reparation it ought to be put upon them to clear the Fact for if he does not produce it then must the King put up the highest injury and affront that perhaps a Man can give the King to his face by delivering a Libel into his own hands and if he does produce it then say they that is not our publication we prove it to be your writing and signing and we prove it to come from the hand of the King against whom it was composed for we say it is a Libel against his Majesty his Government and Prerogative if then all those cases that have been cited be Law then sure there never was a stronger case in the World than this and I hope the Law goes a little farther in the case of the King than it does in the case of a private Man no Man must think by policy to give private wounds to the Government and disparage the Administration of it and then when he is called in question about it says he pray prove that I published it or else you shall not punish me for it we prove you framed it and writ it and signed it and we prove it came to the King's hand of whom it was composed must we produce two Witnesses of the delivery of it to the King surely there will be no need of any thing of that Mr. Sol. Gen. My Lord we have reduced it now to a very narrow question for as Mr. Attorney has said my Lord there is no doubt but that my Lords the Bishops are the Authours of this Paper there is no doubt but they signed it and there is no doubt but that their signing of it though it were at Lambeth as they say is a publishing of it but however this is plain and manifest that this Paper was published and that this Paper was publiâ—…d in Middlesex that is as plain too now then there is nothing left but this question whether my Lords the Bishops who framed the thing who wrote the thing who signed the thing were not the occasion or cause of its publication or privy or consenting to it my Lord I will reduce it to a very plain point for we are upon a rational question before a rational Court and a rational Jury whether these Lords did all of them in the County of Surry consent to the publishing of this Paper in Middlesex for it is published in Middlesex that we see and if they are guilty of that part of the Information of causing it to be published now what do they say to it say they it is agreed that it is published in Middlesex but it is not proved to be published by us Lord Ch. Iust. No they do not say so they agree it was in Middlesex but not published Mr. Iust. Powel Mr. Solicitor they do agree it was in Middlesex but not published to be sure not by them Lord Ch. Iust. Mr. Solicitor I 'll tell you what they stand upon they say you ought to prove it to be delivered to the King by the Bishops or some body employed by them for upon that went the Resolution that was in William's case that he sent it to the King but here is no body that proves that it was delivered to the King in this case so that how it came to the King Non constat Mr. Sol. Gen. There will be the question between us whether this be not a publication Sir Rob. Sawyer Pray Mr. Solicitor prove your case before you argue it Lord Ch. Iust. First settle what the case is before it be either proved or argued Mr. Sol. Gen. My Lord I 'll put you the case here does appear in Middlesex a Paper that is a Libel in it self and this Libel is proved to be written and formed by these persons this Libel coming into Middlesex the question is whether they are privy to it I say in point of presumption it must come from them Lord Ch. Iust. I cannot suppose it I cannot presume any thing Mr. Sol. Gen. My Lord I speak of that which is a common presumption a natural presumption what we commonly call a violent presumption which is a legal presumption and has always been allowed for Evidence now whether there be not such a presumption in our Case as to induce your Lordship and the Jury to believe that it cannot be otherwise or at least to put the labour upon them to shew how it came out of their Studies and how it came to the King's hands for it is in their power to shew the truth of this matter how it was if they do not the presumption will lie upon them that the Paper came to the King that is plain enough and its coming to the King's hands is a plain proof of a publication in Middlesex and who should bring it to the King but these Gentlemen in whose power it was there is no Man undertakes to say he lost it then what else is to be believed but that it came from them I speak of common supposition and belief they may very well shew it if it were not so all that we can say in it is here is a Paper in Middlesex this you agreed was once your Paper and in your power pray shew what became of it it lies upon you to clear this doubt Mr. Recorder My Lord there is but this question in the case the question is not whether the owning it be a publication but whether here be any Evidence that they did deliver it to the King now if they did deliver it to the King that will be agreed to me to be a publication Mr. Ius Holloway No doubt of it if you can prove it Mr. Recorder Pray Sir spare me that they did it you have this Evidence first that they were the Authours of this Paper by their own Confession that this was in the County of Middlesex and that when they were asked concerning it they owned it to be their hand Writing now whether you can in the least question after all this their delivering of it to the King or that it came to the King's hands without their knowledge or consent is that which lies before your Lordship for your Judgment Lord Chief Iustice. I will ask my Brothers their Opinion but I must deal truly with you I think it is not Evidence against my Lords the Bishops Mr. Iust. Holloway Truly I think you have failed in your Information you have not proved any thing against my Lords the Bishops in
the County of Middlesex and therefore the Jury must find them not guilty Mr. Attor Gen. I 'le put you but one case my Lord a Man has an opportunity secretly to deliver a Libel into the King's hands when no Body is by and so there can be no proof of the delivery Mr. Iust. Powel 'T is a dangerous thing Mr. Attorney on the other side to convict People of Crimes without proof Mr. Attorney General But shall a Man be permitted thus to affront the King and there be no way to punish it Lord Chief Iustice. Yes there will sure but it will be a very strange thing if we should go and presume that these Lords did it when there is no sort of Evidence of it 't is that which I do assure you I cannot do we must proceed according to Evidence and forms and methods of Law they may think what they will of me but I always declare my mind according to my Conscience Mr. S. Trinder But as to that other point whether their owning of it be a publication has not been particularly spoke to Lord Chief Iustice. Mr. Attorney and Mr. Solicitor if there were enough to raise doubt in the Court so as to leave it to the Jury I would summ up the Evidence Mr. Solicit Gen. My Lord we know it is with the Court these Lords insisted upon it that it was a great while in their hands but it seems as far as our Evidence has gone hitherto their Confession went no farther than that it was their Paper and we must not extend their Confession further than it was but I think we shall offer a fair Evidence that they did deliver it in the County of Middlesex Lord Ch. Iust. Indeed indeed you ought to have gone to this Mr. Solicitor before the Court gave their Opinions Mr. Solicit Gen. Pray call Mr. Blathwayt again Mr. Blathwayt called Lord Ch. Iust. Mr. Solicitor unless you are sure that Mr. Blathwait is a Witness to the publication 't is but spending the Courts time to no purposâ—… to call him Mr. Solicit Gen. We are sure of nothing my Lord but we must make use of our Witnesses according to our Instructions in our Briefs Then Mr. Blathwait appeared Mr. Attor Gen. Mr. Blathwait you were sworn before Mr. Blathwait Yes Sir. Mr. Attor Gen. Your were present when this Paper or Petition was dell vered by the King at the Council-Board Mr. Blathwait Yes I was so Sir. Mr. Attor Gen. Do you remember any thing of the Bishops acknowledging their delivery of it to the King. Mr. Sol. Gen. Mr. Blathwait I would ask you was there any mention or discourse with my Lords the Bishops how that Paper came into the King's hands was there any mention of what it was done for upon the account of Religion or how Mr. Blathwait I don't remember any thing of that Mr. Solicitor at which there was a great Laughter Lord Ch. Iust. Pray let us have no laughing it is not decent can't all this be done quietly without noise pray Mr. Blathwait let me ask you do you remember there was any discourse how that writing came into the Kings hands Mr. Blathwait I received it from the Kings hands and I know it was presented to him by my Lords the Bishops Lord Ch. Iust. How do you know it was presented to the King. Mr. Blathwait I heard the King say so several times Mr. Sol. Gen. Pray mind my question Sir first I ask you who produced the Paper at the Council-Table Mr. Blathwait The King. Mr. Sol. Gen. What said the Bishops when that Paper was shewed them Mr. Blathwait Then as I remember they were asked whether that was the Paper that they delivered to the King Mr. Sol. Gen. Then what said the Bishops Mr. Blathwait They at first scrupled to answer and they said it might be made use of to their prejudice if they owned it Mr. Att. Gen. Pray Mr. Blathwait consider again was that the question put to my Lords the Bishops whether that was the Paper that was presented by them to the King Mr. Blathwait I do think to the best of my remembrance that my Lord Chancellor did ask them to that purpose I cannot speak to the very words Mr. Sol. Gen. And upon this what answer did they make Mr. Blathwait My Lords the Bishops scrupled to answer the first and second time as I told you before but they did own it was the Petition that they presented to the King to the best of my remembrance Mr. Sol. Gen. Did the Archbishop do any thing to own it Mr. Blathwait Yes both my Lord Archbishop of Canterbury and the rest of the Bishops did own all the same thing Mr. Sol. Gen. Was this done at Whitehall Mr. Blathwait Yes at the Council-Table L. Ch. Iust. Pray recollect your self and consider what you say did they own that that was the Paper they delivered to the King Mr. Serj. Pemb. Pray my Lord give us leave to ask a question to clear this matter was the question put to them Whether it was the Paper that they delivered or whether it were their hands that were to it Mr. Blathwait My Lord I do not so exactly recollect the words L. Ch. Iust. But pray tell us if you can what the question was Mr. Blathwait My Lord I do not remember the very words but I think if Mr. Serjeant Pemberton be pleased to repeat his question I shall give him a satisfactory answer as well as I can Mr. Serj. Pemberton Sir that which I ask you is this Whether the question that was put to my Lords the Bishops at that time was Whether this was the Paper that they deliver'd to the King or whether those were their hands that was to it Mr. Blathwait My Lord I did always think that it was a plain Case that that was the Paper that they delivered to the King and my Lords the Bishops did never deny but that they gave it to the King and I had it from the King's hands L. Ch. Iust. But we must know from you if you can tell us what the question was that was put to my Lords the Bishops were they asked Whether those were their hands that were to that paper or was it Whether they delivered that paper to the King Mr. Blathwait As to the first part that they owned 't was their hands that I am sure of but as to the other I do not remember what the words were At which there was a great shout Mr. Att. Gen. Pray Mr. Blathwait recollect your self you say the King produced it Mr. Blathwait Yes Sir. Mr. Att. Gen. Do you remember that the King asked them any question upon the producing of it Mr. Blathwait My Lord Chancellor asked them if those were not their hands to the Petition Mr. Sol. Gen. Was there any other matter in discourse whether that was the paper that was delivered by them to the King Mr. Blathwait I cannot so positively say what were the words that my Lord
day L. President Yes they were Mr. Soll. Gen. Was this before they appeared in Council L. President Yes it was several days before Mr. Soll. Gen. Then I think now my Lord the matter is very plain Mr. Iust. Allibone Did they acquaint your Lordship that their business was to deliver a Petition to the King. L. President Yes they did Mr. Soll. Gen. And they would have had my Lord read it he says Mr. Attorn Gen. And this was the same day that they did go in to the King. L. President The very same day and I think the same hour for it could not be much longer L. Ch. Iust. Now it is upon you truly it will be presumed to be the same unless that you prove that you delivered another Pray my Lord did you look into the Petition L. President No I refused it I thought it did not concern me Mr. Iust. Powel Did you see them deliver it to the King my Lord L. President I was not in the Room when it was delivered Mr. Iust. Powel They did open their Petition to your Lordship did they L. President They offered me to read it but I did refuse L. Ch. Iust. Will you ask my Lord President any Question you that are for the Defendants Sir Rob. Sawyer No my Lord. Mr. Sol. Gen. Then my Lord we must beg one thing for the sake of the Jury if your Lordship can turn your self a little this way and deliver the Evidence you have given over again that they may hear it L. President My Lord I will repeat it as near as I can I think I shall not vary the Sense The Bishops of St. Asaph and Chichester came to my Office I do not know just the day when but it was to let me know that they came in the Name of the Archbishop and four other of their Brethren Is it necessary I should name them L. Ch. Iust. Do it my Lord if you can L. President They were the Bishops of Ely Bath and Wells Bristol and Peterborough they came to let me know in the Name of the Arch-bishop those four and themselves that they had a Petition to deliver to the King if he would give them leave and desired to know of me which was the best way to do it I told them I would know the King's Pleasure and bring them word again they offered me their Petition to read but I did not think it fit for me to do it and therefore I refused and would not read it but I went immediately to the King and acquainted his Majesty with it and he commanded me to let them know they might come when they would which I immediately did they said they would go and speak with some of their Brethren that were not far off in the mean time I gave order that they should be admitted when they came and they did in a little time return and went first into the Bed-Chamber and then into the Room where the King was Mr. Sol. Gen. And this was before they came and appeared at the Council L. President Yes it was Mr. Pollixfen Your Lordship did not read any thing of the Petition L. President No Sir I did not I refused it Mr. Pollixfen Nor does your Lordship know what Petition they did deliver to the King. L. President I did not know any thing of it from them then L. Ch. Iust. Now you may make your Observations upon this two hours hen now we shall hear what Mr. Finch had â—…her to offer I suppose Then my Lord President went 〈◊〉 Mr. Sol. Gen. I think now it is very plain L. Ch. Iust. Truly I 〈◊〉 〈◊〉 tell you there was a great presumption before but there is a greater now and I think I shall leave it with some effect to the Jury I cannot see but that here is enough to put the Proof upon you they came to the Lord President and asked him how they might deliver a Petition to the King he told them he would go and see what the King said to it they would have had him read their Petition but he refused it he comes and tells them the King said they might come when they would then those two that came to my Lord President went and gathered up the other four the Arch-bishop indeed was not there but they six came and my Lord President gave Direction they should be let in and they did go into the Room where the King was now this with the King 's producing the Paper and their owning it at the Council iâ—… such a Proof to me as I think will be Evidence to the Jury of the Publication Mr. Pollixfen Then my Lord thus far they only can go the Arch-bishop was not there and so there is no Evidence against him Mr. Sol. Gen. As to the Writing we have given Proof against him for it is all his Hand Mr. Pollixfen That still is in another County and there is nothing proved to be done by my Lord Arch-Bishop in Middlesex and next for the other six Lords my Lord President does not say that this is the Petition that they said they had to deliver to the King nor did he see them deliver any thing to the King but that is left still doubtful and under your Judgment so that it stands upon Presumption not upon Proof that this is the same and left under Consideration Mr. Attor Gen. Then we will leave it fairly to the Jury upon this Fact. Mr. Pollixfen If so then we desire to be heard in our Defence Sir Rob. Sawyer May it please your Lordship and you Gentlemen of the Jury you have heard this Charge which Mr. Attorny has been pleased to make against my Lords the Bishops and that is this That they did conspire to diminish the Royal Authority and Regal Prerogative Power and Government of the King and to avoid the Order of Council and in prosecution of this they did falsely maliciously and seditiously make a Libel against the King under pretence of a Petition and did publish the same in the King's presence This Gentlemen is a very heinous and heavy Charge but you see how short their Evidence is The Evidence they bring forth is only that my Lords the Bishops presented the Paper to the King in the most private and humble manner they could that which they have been so many hours a proving and which they cry up to be as strong an Evidence as ever was given proves it to be the farthest from Sedition in the doing of it that can be and you see what it is it is a Petition to be relieved against an Order of Council which they conceive they were aggrieved by they indeed do not deal fairly with the Court nor with us in that they do not set it forth that it was a Petition L. Ch. Iust. That was over-ruled before Sir Rob. Sawyer I do not insist upon it now so much an Exception to the Information as I do to the Evidence they set this forth to be
was proper for you to stand upon the Place where it was Written as yet Mr. Serj. Levinz When we are upon an Information of a Fact in Middlesex will you hear them give Evidence of a Fact in Yorkshire Mr. Sol. Gen. We are not to be driven by these Gentlemen we are to be directed by the Court. L. C. I. I think truly it is yet too early to make this Objection Mr. Serj. Pemberton Surely my Lord this is our time to oppose the Reading of it as not proved Mr. I. Powell Mr. Sollicitor I think you have not sufficiently proved this Paper to be Subscribed by my Lords the Bishops Mr. Sol. Gen. Not to Read it Sir Mr. I. Powell No not to Read it it is too slender a Proof for such a Case I grant you in Civil Actions a slender proof is sufficient to make out a Man's Hand by a Letter to a Tradesman or a Correspondent or the like but in Criminal Causes such as this if such a proof be allowed where is the safety of your Life or any Man's Life here Mr. Sol. Gen. We tell you a Case where it was allowed and that is Mr. Sidney's Case a Case of Treason and Printed by Authority We tell you nothing but what was done to'ther day L. C. I. I tell you what I say to it I think truly there is proof enough to have it Read and I am not ashamed nor afraid to say it for I know I speak with the Law say what you will of Criminal Cases and the danger of Peoples Lives there were more danger to the Government if such proof were not allowed to be good Mr. I. Powel I think there is no danger to the Government at all in requiring good proof against Offenders L. C. I. Here 's my Lord Archbishop and the Bishop of St. Asaph and my Lord of Ely their Hands are proved it is proved to be my Lord Archbishop's Writing by Mr. Brookes and he proves my Lord of Ely's Hand by Comparison and so my Lord of St. Asaph's Now Brother Pemberton there 's an Answer to your Objection it being proved that it is all my Lord Archbishop's Hand then they come and say We 'll prove the Hands of the others by comparison and for that they bring you Witnesses that say They have received Letters from them and seen their Hand-writing several times and comparing what they have seen with this very Paper says the Witness I do believe it to be his Hand Can there be a greater Evidence or a fuller Mr. Serj. Pemberton Admit it be a full Evidence against my Lord Arch-Bishop What 's that to the rest There 's no Evidence against them Mr. I. Allybone Brother Pemberton as to the Objection you make of Comparing of Hands it is an Objection indeed I do agree but then consider the inconvenience which you and Mr. Pollixfen do so much insist upon If a Man should be accused by Comparison of Hands Where is he He is in a lamentable Case for his Hand may be so Counterseited that he himself may not be able to distinguish it But then you do not consider where you are on the other side that may be an Objection in matters of Fact that will have very little weight if compared and set altogether For on the other side where shall the Government be if I will make Libels and traduce the Government with Prudence and Discretion and all the secrecy imaginable I 'll Write my Libel by my self prove it as you can that 's a fatal blot to the Government and therefore the Case is not the same nor is your Doctrine to pass for current here because every Case depends upon its own Fact. If I take upon me to Swear I know your Hand the inducements are to my self how I came to know it so as to Swear it Knowledge depends on Circumstances I swear that I know you but yet I may be under a mistake for I can have my knowledge of you no other way but from the visibility of you and another Man may be so like you that there is a possibility of my being mistaken but certainly that is Evidence and good Evidence Now here are several Gentlemen that swear as to my Lord Archbishop's Hand-writing I do agree as to some of the others that the Evidence is not so strong for what that Man said that he did believe it was rather such a Lord's Hand than that which went before or that which came after it is of no weight at all and so some of the others but it is positively proved against my Lord Archbishop and one or two more so that that 's enough to induce the reading of this writing Mr. Iust. Holloway Good my Lord let me give my opinion L. C. Iust. Ay withall my heart Brother Mr. Iust. Holloway My Lord I think as this Case is there ought to be a more strong proof for certainly the proof ought to be stronger and more certain in Criminal matters than in Civil matters in Civil matters we do go upon slight proof such as the comparison of Hands for proving a Deed or a Witnesses Name and a very small proof will induce us to read it but in Criminal matters we ought to be more strict and require positive and substantial proof that is fitting for us to have in such a Case and without better proof I think it ought not to be read L. C. Iust. You must go on to some other proof Mr. Sollicitour for the Court is divided in their Opinions about this proof Mr. Soll. Gen. Then my Lord we will come to the Confessions of my Lords the Bishops and I hope that will be believed by all Man-kind Mr. Att. Gen. Truly my Lord we did forbear that Evidence and would not have proceeded this way if we had had fair play on the other side Sir Ro. Sawyer Mr. Attorney give us leave to defend our Clients all the ways we can I think we doe nothing but what is fair the Court you see is divided therefore we did not without reason insist upon it L. C. Iust. You must go on as you can for they will put you upon it Mr. Att. Gen. Swear Mr. Blathwayt Mr. Blathwayt Sworn Mr. Soll. Gen. Pray hand the writing to him The writing shown to him Mr. Soll. Gen. Have you seen that writing formerly Sir Mr. Blathwayt Yes Sir. Mr. Soll. Gen. What did you hear my Lord Arch-Bishop say about that Paper Mr. Att. Gen. And the rest of my Lords the Bishops Mr. Soll. Gen. First we 'll ask as to my Lord Arch-Bishop did he own it to be his Hand-writing Mr. Blathwayt My Lord I believe this to be the Paper that my Lord Arch-bishop did own to be subscribed by him Mr. Soll. Gen. When was it owned by him Mr. Blathwayt On the Council day the Eighth of this Month. Mr. Soll. Gen. Where was it owned because we would obviate that Objection of the County Mr. Blathwayt It was at the Council Table at
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