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
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
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
it also provided and enacted That if any person shall hereafter be Committed Restrained of his Liberty or suffer Imprisonment by the Order and Decree of any such Court of Star-Chamber or other Court aforesaid now or at any time hereafter having or pretending to have the same or like Iurisdiction Power or Authority to commit or imprison as aforesaid or by the Command or Warrant of the King's Majesty his heirs or Successors in their own Persons or by the Command or Warrant of the Council-Board or of any of the Lords or others of his Majesties Privy-Council that in every such Case every person so Committed Restrained of his Liberty or suffering Imprisonment upon demand Mr. Soll. Gen. That is all Your Lordship sees these several Distiâ—…ctions of the Style of Commitment Mr. Att. Gen. Now pray favour us a little My Lord I think these Gentlemen will not deny but that the Lords of the Council can commit I must confess they ask that which was pretty reasonable if the Case was as they would make it They would have my Lords the Bishops discharged because there is not a Return of a good Commitment and that stands upon this presumption that what is here said to be done by all these Lords at the end of whose Names this is added Lords of the Privy-Council was done by them out of Council which I suppose your Lordship will not presume but will take it that they did this as Lords of the Council in Council And no man can say but the Lords in Council can commit Mr. Soll. Gen. You may as well presume upon a Warrant made by my Lord Chief Iustice because it is not said where he did it and therefore he did it in Scotland Mr. Att. Gen. I say again unless your Lordship will presume that which is not to be presumed this must needs be a very good Return Mr. I. Allyb. Truly as Mr. Sollicitor says you may as well desire us to presume that my Lord Chief Iustice would commit a man in Ireland or Scotland I can see no imaginable difference Mr. Finch My Lord That which we pray is not that your Lordship would presume but that you would not presume but take the Return as 't is before you and then see whether it can be thought to be a Commitment by the Lords in Council Mr. S. Pemberton Pray my Lord spare us a little in this matter Here has been the Clause of a Statute read to you from whence Mr. Sollicitor would conclude that all Commitments by several sorts of persons there named are legal or else the Enumeration of the several sorts of Commitments signifies nothing to this purpose But I pray your Lordship would consider this that the very scope and end of that Act of Parliament is to relieve against illegal Commitments and Oppressions then the several Commitments therein named can never all be called legal so that that signifies nothing to our purpose My Lord they tell us we stand upon Presumption no we do not so we say your Lordship ought not to presume the One or the other but to judge upon what is before you but here is nothing before you but this Return of a Commitment of these Noble Persons my Lord the Arch-Bishop of Canterbury and the rest of the Bishops which is said to be by these particular Lords Now if your Lordship will please to give us time to look into it for this is an Exception we take at the Bar upon hearing the Return read we would shew the constant way has been quite otherwise than this Return makes it therefore we desire leave to satisfie your Lordship concerning the usual Form of Precedents and thereby it will appear that it ought to have been that they were committed by Order of the Privy Council and then he should have set forth the Warrant it self which would have shewn the Names of the Privy Councellors and he needed not to have put their Names in the Return as the particular Persons that committed them but now my Lord this does not appear to be an Order made in Council as it ought to be and the Return is that which is before you and you are to judge only upon what is before you L. C. Iust. So we do Mr. Iustice Allybone Pray Sir Robert Sawyer would the Saying of a Governour of the Tower in his Return to a Writ of Habeas Corpus alter the Nature of the Commitment Mr. Att. Gen. My Lord We are in your Lordships Judgment Mr. Iust. Allybone I say Brother Pemberton would any collateral Saying of the Lieutenant of the Tower alter the Nature of the thing his Return in this Case is onely an Inducement to the Warrant of Commitment and his Saying one way or t'other would neither vitiate nor mend the Commitment Mr Soll. Gen. Your Lordship cannot take notice of the Commitment but from the Warrant Mr. Pollexfen The Return is the Fact upon which you are to judge Mr. Iust. Powel Certainly we must judge of the Record and nothing else and the Return is the Record now being filed L. Ch. Iust. The Return is as certain I think as can be Mr. Soll. Gen. By the Return it appears the Bishops were committed by the Warrant of such and such Lords of the Council and that which is before you now is whether you will not intend it to be done by them in Council Mr. Iust. Powel We can intend nothing but must take the Return as ' t is Lord Chief Iust. The Warrant is good enough I think truly and so is the Return Mr. Pollexfen I think in all the Habeas Corpus's that have been since the King's return of Persons committed by the Council the Returns have been quite otherwise than this Return is We do all pretty well agree for ought I can perceive in these two things We do not deny but the Council Board has Power to commit they on the other side do not affirm that the Lords of the Council can commit out of Council Mr. Att. Gen. Yes they may as Justices of the Peace Mr. Pollexfen That is not pretended to be so here L. Ch. Iust. No no that is not the Case Mr. Pollexfen Then my Lord with submission I will compare it to any thing else of this nature I deny not but that the Council may commit but the Question is whether this Return of their Commitment be right Suppose there should be a Return to a Habeas Corpus that such a one was committed by Sir Robert Wright and three others by Name Justices of this Court for a Contempt without saying that it was done in Court this would be an ill Return although they had power in Court to commit for a Contempt yet it must appear that it was done in Court or it cannot be a good Return If I had thought or foreseen that such a Return would have been made I could easily have made out our Objection but we could not foretell what they would return and therefore
the Realm and ought to have the priviledge of their Peerage which is not to be Committed for a Misdemeanour that the Council ought not to have done For the Peers of England ought no more to be Committed for a Misdemeanour and to be Imprisoned especially upon the first Process than they may be in a case of Debt It is true in the case of Treason Felony or the Breach of the Peace the Peers have not such a Priviledge they may be Committed but for a bare Misdemeanour as this does appear to be in the Warrant of Commitment they ought not to be Committed but they were Committed by the Lords of the Council and we now complain of this to your Lordship as Illegal and therefore pray my Lords may be discharged Sir Robert Sawyer Will your Lordship be pleased to favour me a Word on the same side for my Lords the Bishops It must be agreed to me that if a Peer be brought into Court as taken by a Capias he cannot be charged with a Declaration and the reason is because the Process is Illegal Then my Lord with submission When a Peer comes upon a Foreign Commitment and is brought in Custody upon a Habeas Corpus this is either in the nature of a Process or a final Commitment as a Judgment they will not say that this is a good Commitment so as to amount to a Judgment for the Council-Board could not give a Judgment in the case besides the Commitment is Illegal because it is not a Commitment till they find security to answer an Information here but 't is a Warrant to keep them for a Misdemeanour besides there is another thing we have to say to this Warrant for I am making Objections against the Validity of this Commitment it does not appear that there was any Oath made and therefore the Court must adjudge that there was no Oath made and then no man ought without an Oath to be Committed much less a Peer but that which we chiefly rely upon is That my Lords ought not to have been Committed for this which is but a Misdemeanour at most And if they use it as Process to bring my Lords the Bishops to answer an Information we say By Law no such Process can be taken out against the Persons of Peers for bare misdemeanours I do agree that for Fellony Treason or Surety of the Peace the Persons of Peers may be Committed and that which is called Surety of the Peace in our Books Mr. Sollicitor knows very well in some of the Rolls of Parliament is called Breach of the Peace but it is all one and the meaning in short is That it is such a Breach of the Peace as for which a Man by Law may be obliged to find Sureties for the Peace If it should mean a Breach of the Peace by implication as all Trespasses and Misdemeanours are said to be Contra Pacem in the Indictment or Information then it were a simple thing to enumerate the Cases wherein Priviledges did not lie for there could be no Information whatsoever but must be Contra Pacem and so there could be no such thing as Priviledge at all And besides we say the very Course of this Court is contrary to what they would have for in the Case of a Peer for a Misdeameanour you go first by Summons and then you do not take out a Capias as against a common Person but the next Process is a Distringas and so ad Infinitum And I do appeal to them on the other side and Challenge them to shew any one Precedent when a Peer was brought thus into Court to be charged with an Information without it were in the Case of an apparent Breach of the Peace for he must be Charged in Custody and there must be a Committitur to the Marshal to intitle the Court to proceed your Lordship will find very few Precedents of Cases of this Nature about common Persons for till within these 14 or 15 years there was no such thing ever done against a common Person But this was the Rule first there went out a Subpoena and then an Attachment and when the Party was taken upon the Attachment he is taken to come in upon Process and then the Court would Charge him presently but if he did appear upon the Summons they would not Charge him but he had time to take a Copy of the Information and an Imparlance of Course till the next â—…erm before he could be compelled to Plead But in the Case of a Peer there never was any such Precedent as the Attaching his Person but only a Summons and Distress and I would be glad the KING's Council would shew that ever there was any such process taken out against the Person of a Peer for a meer Misdemeanour My Lord 't is plain what Breach of the Peace means in every Information and I only speak this to acquaint the Court how the constant Proceedings in all these cases have been These Informations were anciently more frequent in the Star-Chamber and what was the Process there Not the common Process of a Subpoena that was not the course there but the Process was a Letter from the Chancellor that if the Party upon that Letter did not appear in a Common Case there went out an Attachment but in a Peers Case never and so it appears by Cromptons Iurisdiction of Courts Tit. Star-Chamber 33. This appears likewise by the Proceedings in Chancery against the Peers till the Queens time they did not so much as take out an Attachment after default upon a Subpoena but they would then in the Queens time be so bold as to take out an Attachment against a Lord for not appearing but that Course was condemned as illegal so we find in my Lord Dyer Mr. Attor Gen. That was at a common Persons Suit. Sir Robert Sawyer But the proceedings in the Star-Chamber were at the King's Suit and I am sure Mr. Sollicitor knows that the Peers priviledges reach to Informations but as I was saying it was so adjudged as to the Chancery in my Lord Cromwel's Case xiiii Eliz. Dyer 315. Ld. Ch. Iust. You take a great compass Sir Robert Sawyer but pray remember what you laid down at first for the Ground of your discourse That there was never any Commitment of a Peer for a bare Misdemeanour you must keep to that that is the Point you are to look after Sir Robert. Sawyer My Lord I will so I do not Cite these Cases but for this purpose to shew that in all Courts the Peers have particular Priviledges and I am sure they can produce you no Precedents for any such proceedings against a Peer in my experience of these matters I never knew any such nay I knew it always to be otherwise That in Informations for Misdemeanours there did never issue out a Capias against a Peer and Mr. Attorney knows very well it was so in the late Case of my Lord Lovelace for that Case of my
Lord Devonshire that was an express Breach of the Peace tho' it was debated and disputed then so that I take it these Noble Lords cannot be charged with this Information because they do not come in by Legal Process and unless they can shew me any Case where a Peer did ever come in upon such a Commitment and answered to an Information upon that Commitment it must certainly be allowed not to be the Legal Course though if such a Precedent could be shewn that past sub Silentio without debate or solemn determination that would not do nor could bind the rest of the Peers If one man would lose a particular Benefit he has all the whole Body must not lose it and the benefit is not small of Time to make his Defence of Imparling of taking a Copy of the Indictment and preparing himself to plead as his Case will bear and indeed a common person has used to have these priviledges tho in some Cases of late they have taken the other Course and if a Capias went out which We say cannot go against a Lord and the Party were brought in he was to answer immediately Now my Lord I take it That the Priviledges of Peers is in all times the same with the Parliamentary Priviledge in Parliament time which reacheth to Informations as well as other Actions My Lord Cooke is express in this point in the 4. Instit. 25. If that Objection should hold good that every Information being Contra Pacem that should be a Breach of the Peace then as I said before priviledge will hold in no Information which is contrary to that and all our other Books 't is only such a Breach of the Peace as for which security of the Peace may be required But further that this is a Priviledge enjoyed by the Peers Spiritual as well as Temporal I suppose will not be denied for I think they will not question but that the Bishops and Abbots that were Lords of Parliament were Peers and we find in our Books when the Court has been moved for a Capias against an Abbot if he were a Mitred Abbot and sat in the Lords House it was always said that no such Process ought to go and so it is in the case of Bishops but indeed for other Noble Men the difference is this Where it does not appear upon Record that they are Lords of Parliament there the Courts have put them to bring their Writs of priviledge but where it does appear upon Record that they are Peers the Court is to allow and take notice of their priviledge and there needs no such Writ Now that the Parliament priviledge and the priviledge of Peers as to their persons is the same appears by the form of the Writ in the Register fol. 287. Fitz Herb. Nat. Brev. 247. The Words of the Writ are these That if such a one be Sued at the Suit of another the Writ commands that a Peer out of Parliament time should have the same priviledge with those summoned by the KING to the Parliament and I know not any difference that can be put between them and it cannot be denied that all Informations whatsoever unless such as are for Breaches of the Peace for which Surety of the Peace may be required are under the Controul of the Parliament priviledge so that upon these grounds I do press that my Lords the Bishops may be discharged If there be any Information against us we are ready to enter our Appearance to answer it according to the course of the Court but if the Information be for no other thing than what is contained in the Warrant of Commitment then their persons ought to be priviledged from Commitment Mr. Pollixfen If your Lordship please to take it all together you will find it a case very well worth your consideration it being the case of all the Peerage of England Mr. Attor Gen. My Lord these Gentlemen have taken a great deal of Liberty and spent much of your time in making long Arguments and after all truly I do not know where to have them nor can understand what they would be at it seems they agree that for Treason Felony and Breach of the Peace a Peer may be Committed Ld. Ch. Iust. That is say they such a Breach of the Peace as for which Surety of the Peace may be required Mr. Attor Gen. Then all the Learning they have been pleased to favour us with is at an end for if here be any thing charged upon the Bishops for which Sureties of the Peace may be required then this is a good Commitment Ld. Ch. Iust. That they must agree upon their own Arguments Mr. Attor Gen. Can then any man in the world say that a Libel does not require Sureties of the Peace for we must now take it as it is here upon this Return How my Lords the Bishops will clear themselves of it is a Question for another time but the Warrant says they were Commited for Contriving Framing and Publishing a Seditious Libel against His Majesty and His Government Is there a greater Misdemeanour Or is there any thing on this side a Capital Crime that is a greater Offence Is there any thing that does so tread upon the Heels of a Capital Offence and comes so near the greatest of Crimes that can be Committed against the Government Not to enlarge at this time upon what the Consequences of such things may be Is there a greater Breach of the Peace than such Seditious Practices No doubt any man may be Committed for it and may be bound to find sureties for his good Behaviour Sir Robert Sawyer I say Sureties of the Peace not of the good Behaviour Mr. Soll. Gen. Pray my Lord would you consider where we are we are going towards France I think or some farther Country they have set us out to Sea and I do not see after this rate when we shall come to Land certainly these Gentlemen are mightily out of the way and would fain have us so too we are here upon a single Question as this Case stands before your Lordship upon the Return here is a Libel a Seditious Libel said to be contrived made and published against the KING and His Government by these Noble Lords the Prisoners this is the Accusation suppose this be true that is to be proved hereafter I hope they are innocent and will prove themselves so but suppose it to be true that they have made a seditious Libel against the King and His Government will any man say that this is not done Vi Armis This is a Libel with a witness nay two or three degrees more may carry it to High Treason and all the Informations that were exhibited by Sir Robert Sawyer when he was Attorney General and he exhibited a great many for Libels constantly these Words were in Vi Armis contra Pacem Bishop of Peterborough Was it so in your own Case Mr. Sollicitor Mr. Soll. Gen. Yes it was so
in my Case and you were one of them that prosecuted me for ought I know or if you did not prosecute me you preached against me or if you did not some of your Tribe did But so my Lord it was in many other Cases within time of Memory Sir Robert Sawyer has past a Complement upon me of my great Skill in Parliament matters but truly there needs no great Skill in matters where the Law is so plain a Peer they agree may be in Prison for Treason Felony or Breach of the Peace but that Breach of the Peace I say they is where the Law requires Sureties of the Peace but is there any Certainty where Sureties of the Peace shall be required and where not Then I would put this Cafe These Lords have contrived and published a Seditious Libel against the King and His Government and whether this be not such a Breach of the Peace as will require Sureties of the peace is the Question before you And it plainly appears to be so in Sir Baptist Hick's Case in Hobbart If a man write a private Letter provoking another to fight although there be no fighting this is a Breach of the peace now a Letter can do no Wrong in that kind but as it incites and stirs up to fighting which may occasion Blood-shed and I think there cannot be a greater Breach of the peace than for a man to come to the King's Face and publish a Libel against Him and yet according to their Doctrine this man shall go away and you shall not take him up but take a Subpoena against him and wait for the delay of all the ordinary process and they tell you another thing that a Capias does not lie upon an Information against the person of a Peer and that there is no precedent of any such thing but I would pray them to remember the Case of my Lord Lovelace about some three years ago for breaking a Foot-mans Head. It seems if a man libels the King in His own presence that is not so great a matter as a little Correction to an insolent Foot-man but there he was bound in a Recognizance to appear here in this Court and accordingly he did appear and was Charged with an information and as to that precedent I do believe Sir Robert Sawyer and Mr. Finch won't contradict me this was in the first year of this King There was likewise my Lord of Pembrooke's Case who went to a disorderly House and there frighted some people and we moved the Court and had an Attachment against him for a misdemeanour and he was glad to Compound the thing or it had not ended so soon as it did and yet if a Lord comes to the King's Person and affronts Him to his very Face will not an Attachment lie against him for it Certainly it will. My Lord we have gone out of the way too much already and these Gentlemen will lead us farther but we hope your Lordships will reduce us to the methods of the Law Here is an Information which we desire may be read if they have any thing to plead to it their time for that will come after it is read if they think they have been illegally imprison'd it appears plainly upon this Return who they were that did Commit them here are a great many Noble Lords to Answer an Action of false imprisonment if these Lords think fit and may have these Learned Gentlemen that are very well able to advise them what they should do in it Sir Robert Sawyer We pray your Lordships Judgment whether the Cases put by Mr. Sollicitor are like our Case Mr. Soll. Gen. They are as like as Sir Robert Sawyer is to Mr. Attorney that was Sir Robert Sawyer Those Cases are of apparent Breaches of the peace so likewise was my Lord of Devonshire's Case but certainly that was not at all like this Mr. Finch With your Lordships Favour I would add but one Word and I would repeat nothing of what has been said all that I shall say is this There is a great deal of Difference between an Actual Breach of the Peace and that which in the bare Form of an Information is a Breach of the Peace by Construction of Law it being contra pacem Suppose it be laid that a man did vi armis speak Words will that make the Words a Breach of the peace Mr. Soll. Gen. It must be vi armis and certainly is a Breach of the peace Mr. Finch If a man write a Petition are the pen and ink that he uses the Arms Mr. Soll. Gen. My Lord I hope Mr. Finch remembers what I heard him say in Algernoon Sidney's Case scribere est agere Mr. Finch I think it is so Mr. Sollicitor but every Action is not a Breach of the peace Ld. Ch. Iust. We let my Brothers deliver their Opinions I will give you mine Mr. Iust. Allyb. The single Question now is Whether or no that which Mr. Sollicitor was pleased to name as the Crime and lay it to the Charge of my Lords the Bishops that is a seditious Libel be a Breach of the peace I do confess that there is little of Argument to be drawn from Forms of Indictments and I shall put no great stress upon the words vi â—…mit where the Fact will not come near it but if a Commitment may ensue as they seem to agree wherever surety of the peace may be required nothing seems more important to me than that surety of the peace should be required where there is any thing of Sedition in the Case and wherever there is a Seditions Act I cannot tell how to make any other Construction of it but that it is an Actual Breach of the peace that is my Opinion Mr. Iust. Powell I am of the same opinion in this point too as I was in the other point before It was a matter of great consequence I thought upon the former point but now it appears to me to be of far greater consequence than it did at first for here all the Great High and Noble Peers of England are concerned in it as to theâ—… priviledge Our Predecessors in this Court heretofore would not determine the priviledges of the Peers but left them to themselves to make what Judgment they pleased of them I think truly 't is a thing of that weight that it may be very fit for the Court to take time to consider of it and I declare for my own part I will not take upon me to deliver â—…y Opinion in a matter of this Consequence before I have Consulted all the Books that can give me any Light in the Case Mr. Iust. Allybone Brother Powell I am not determining limitting or cramping the priviledge of Peers but I am only considering whether or no a seditious Libel be a breach of the Peace 'T is agreed to be on all hands a breach of the Peace Is there any thing that will require Sureties of the Peace to be
have it not ready 't is not telling the Court of it without shewing of it that will do and it may be a man that is taken up and brought hither in Custody cannot have it ready to shew but yet then by this Rule a man shall lose the benefit of his Plea by being compelled to answer immediately But they say the Court will do right I suppose they will and my Lords the Bishops in this case I believe do not distrust but that the Court will do right but I never thought the Law was brought to that pass that such things as these were left wholly in the discretion of the Court certainly Imparlances time to plead and just Preparations for a man's defence are things that the Law has setled and not left in the discretion of the Court and truly to me it seems all one utterly to take away a man's Defence as to hinder him of the means to prepare for it My Lord here is an Information before you against these Noble Lords it is a matter of great moment and tho' I hope in God there is no great cause for it yet however since such Persons are concerned and 't is a matter of such great weight I hope you will give us such an Imparlance as if we had this day appeared upon the ordinary Process which is an Imparlance until the next Term. L. Ch. Iust. There is a difference between this and that other Case if my Lords the Bishops had appeared upon the Summons they would have had an Imparlance of Course but when they are brought up hither in Custody that mightily alters the Case but that we may not be too hasty in a thing of this nature let the Clerk of the Court be consulted with that we may know what the true Course is Mr. Att. Gen. My Lord we pray Sir Samuel Astry may be examined a little about it Mr. Iust. Allybone Mr. Pollixfen I believe the Court is unanimous in their Resolutions of making nothing new in this Case but pray give me leave to tell you this is not the first time that this Question has come to be agitated in this Court since I came hither Now from whence can the Court take their measures to be rightly informed what the Practice of the Court is but from the Information of the Officers of the Court who by their constant Imployment are most capable of knowing what the Course is Now if you come to offer any thing that may be matter of doubt to the Court concerning the Practice of the Court you having known that this thing was controverted before for so it has been should have provided your self with something that must be a reasonable motive for us to doubt for this has not been only once but often moved and our Officers have been consulted with concerning this Question which took its rise from such Objections as you have made now Now for you to tell us That you desire that we would look into Precedents is methinks pretty odd if you had brought us any Precedents it had been something And withall I must tell you that you must not reckon the favour of the Court in any particular Case to be the standing Rules for the Practice and Course of the Court but instead of bringing Precedents you only offer your own Thoughts and those would create no doubt in us but what has been before satisfied upon Examination of the Officers of the Court. Mr. Pollixfen Pray Sir will you give me leave to answer you one word Mr. Iust. Powell Truly I have not observed that ever this Point was started so as to beget a Question since I came hither but only in the Cases of the Quo Warranto's and truly in that Case I thought it hard they should be denied time to plead especially the Consequence being so fatal L. Ch. Iust. Yes yes Brother it has been several times Mr. Iust. Powell Truly my Lord I have not observed it nor do I remember it Sir Rob. Sawyer My Lord I have always taken the distinction as to these Matters to be this Mr. Iust. Powell But my Lord if the ancient Course of the Court hath been to grant an Imparlance and a Copy of the Information before they plead I see no reason why my Lords the Bishops should not have the benefit of that ancient Course for if a man that is sued at Law for a Two-penny Trespass shall have that advantage as to receive a Declaration and have time to plead what he can to it why should not my Lords the Bishops in a matter of so great weight have the same advantage too But indeed if the Course of the Court had been anciently otherwise I can say nothing to it for the Course of the Court is certainly the Law of the Court. Mr. Iust. Allybone Brother Powell you say well if they did produce any one Precedent to give us occasion to doubt in the matter Sir Rob. Sawyer Pray good my Lord will you give me leave Mr. Attorn Gen. Why Sir Robert Sawyer will you never have done Mr. Soll. Gen. No they are all so zealous and eager in this Case that they wont permit either the Court or any body else to speak a word but themselves Mr. Serj. Pemberton Good Mr. Sollicitor give us leave to answer the Objection that the Court hath made to us we would satisfie your Lordship where the Distinction really lieth where there has been an Opportunity for the party to come in as by Summons or Subpaena or the like and he has slipped that opportunity and so the King is delayed in that Case they always used to put the Party upon Pleading presently when he was taken up upon a Capias and brought in Custody but when there was never any Subpoena taken out as the Case is here so that the Party never had an opportunity to come in and render himself and appear to Answer it according to the due Course of Law an Imparlance was never yet denyed nor time to Plead and that is the Case here Sir Robert Sawyer My Lord Mr. Serjant has given you the true distinction where Process has gone out to summon any one to appear to an Information and he hath failed to appear according to the Summons and the Prosecutor for the King takes out a Capias if he be brought in upon that Capias the Ancient Course has been so as they say But for that other matter where a Man comes in upon a Commitment at the first Instance and an Information is put in just as this is the same Morning and not before if they can shew any one Precedent of this kind Fifteen years ago I would be contented to yield that they are in the right but I am sure they are not able to do it In Sir Mathew Hales's time when this was moved it was refused and he was clear of another Opinion Mr. Attor Gen. I hope now my Lord we shall be heard a little for the King and I
cannot forbear observing in the first Place somewhat that these Gentlemen have offered at who are now inveighing against the heat of the Times when a great part of that heat we know who were the Inflamers of but what is all this to the purpose The Question is barely this Whether when a Man is brought in Custody into this Court and Charged with an Information he shall not by the Course of the Court be compelled to Plead presently Sir Robert Sawyer To Indictments for Treason and Felony he shall be Compelled to Plead presently but not to an Information for Misdemeanours Mr. Just. Powel It seems to me very hard he should Mr. Attor Gen. Sir there are many things that seem hard in Law but yet when all is done the Judges cannot alter the Law 't is a hard Case that a Man that is tryed for his Life for Treason or Felony cannot have a Copy of his Indictment cannot have Council cannot have his Witnesses sworn but this has been long practiced and the usage is grown to a Law and from time to time it hath been so taken for Law it cannot be altered without a new Law made as it hath been heretofore so it must be now till a greater Authority alter it and so as to the Case here at present if it were a new Case and it was the first Instance I must Confess I think I should not press it but if this be the Constant Practice of the Court and if these Gentlemen that now oppose it some of them Ministerially some of them Judicially have themselves Established this Practice they have no reason to wonder that we follow them in it we do not blame them for what they do now for Men when they are of Council may be permitted to argue for their Client contrary to their former Opinions but if these things by their procurement have done thus before surely without Offence we may pray the like may be gone now 'T is our duty on behalf of the King to desire that he may have Right done him as well as they on the behalf of my Lords the Bishops and for the usage to Cite Precedents were endless especially of late times and these Gentlemen know them all very well for they were some of them Parties to them themselves and we can do no more nor need than to put them in mind of their own doings whether it was so before their time or not it concerns them to make out and retract their own Errors but in our observation if ever this was pressed or insisted upon on the Kings behalf this Course has always been persued Sir Robert Sawyer For a Precedent my Lord there is the Case of my Lord Hollis where there was given time after time Mr. Soll. Gen. That was only time to argue the Plea to the Jurisdiction of the Court. Mr. Just. Powel Mr. Solli have you ever known it contested and upon Debate so Ruled in an Information for a Misdemeanour as this Case is Mr. Sol. Gen. If you please to ask Sir Samuel Astry he will inform you how the Course has been L. C. Iust. What say you Sir Samuel Astry Sir Sam. Astry My Lord when I came into this Place there was an Ancient Gentleman that had been long a Clerk in the Office. L. C. Iust. How many years is it since you came into this Office Sir Sam. Astry About a dozen years I think my Lord and he sat in this place where Mr. Harcourt does now he was always accounted a Loyal Honest and Intelligent Man that is Mr. Waterhouse who is now alive and when I came into my Office I took my Instructions in a great measure from him and asked him what the Course of the Court was in such Cases which I my self did not understand for tho' I had been an Attorney Twenty years yet it was on the other side the Civil side and tho' I knew some things of my own knowledge yet I did not so well know the whole practice of the Court and particularly I asked him what was the Course of the Court in this Case that is now in Question and he told me that in all his time and experience if a Man appears upon a Recognizance or was a Person in Custody or appeared in propria persona as a person Priviledged he ought to Plead at the first instance and according to that practice when Sir Robert Sawyer was Attorney-General it was the constant practice and I am sure he knows it is no new thing Sir Rob. Saw. But upon what Informations Sir Samuel Astry were they Informations upon Misdemeanors Sir Sam. Astry Yes several Sir Rob. Saw. But was there not Process taken out first to call the Party in Sir Sam. Astry Yes where Process was never taken out Mr. Att. Gen. For how long time is this that you speak of your own knowledge Sir Samuel Sir Sam. Astry About a dozen years Mr. Serj. Pemb. It was never done till very lately but after the Party was in Contempt for not appearing Mr. Sol. Gen. I would ask you Sir Samuel Astry one Question Was the usual Process of Subpoena first taken out for Mr. Serjeant Pemberton says it was do you find any Warrant for such a difference as that Mr. Serj. Pemb. Do you find any such Case as this is Mr. Sol. Gen. Nay pray Mr. Serjeant give us your favour and let us ask our Questions according to your own Doctrine How do you find the Practice to have been as to that distinction they have made Sir Sam. Astry Sir I would be very loath to inlarge the Precedents of the Crown Office furthar than the truth is I tell you whence I took my Instructions from Mr. Waterhouse who was an Ancient Clerk in the Office he has been in that Office Sixty years and the Instructions I took from him were that this was the Practice all his time and it has been asserted all my time it has been often contested I confess and Mr. Pollixfen has always opposed it and moved against it but it has been always ruled against him I know it was against his Judgment but the Court always over-ruled it Sir Rob. Saw. Sir Samuel Astry can you give any one Precedent before you came into this Office Sir Sam. Astry Sir I can go no farther than this that I have told you what Information I received from him Sir Rob. Saw. What is all this but a Certificate from Mr. Waterhouse L. C. Iust. We can be informed no otherways than by Certificate from the old Clerks of the Office. Mr. Serj. Pemb. Alas he is a Child and not fit to do any thing Mr. Pollixf We all know Mr. Waterhouse very well he is a very weak Man and always was so and there is no depending upon any thing that he says Mr. Sol. Gen. Pray my Lord will you hear us a little for the King. The Bishop of Peterborough whispering with Sir Rob. Sawyer Mr. Sollicitor said to him My Lord you had
of May the King's Order of Council for the Reading the Declaration Mr. Gantlâ—… There it is Sir. The Book delivered into Court. Mr. Sol. Gen. Read it I Pray Clerk Reads At the Court at Whitehall the fourth of May 1688. and so reads the Order of Council Mr. Sol. Gen. My Lord we have one thing that is mentioned in the Information that this Declaration was Printed if that be denied we will call Henry Hills his Majesties Printer because we would prove all our Information as it is laid Lord Ch. Iust. You must do so Mr. Sollicitor you must prove the whole Declaration Mr. Sol. Gen. Cryer call Henry Hills He was called but did not presently appear Mr. Sol. Gen. Call Mr. Bridgman though these Declarations prove themselves we have them here Printed but Swear Mr. Bridgeman Mr. Bridgeman Sworn Mr. Sol. Gen. Shew Mr. Bridgeman the two Declarations Lord Ch. Iust. What do you ask him Mr. Sol. Gen. We ask you Sir if the two Declarations were Printed Mr. Bridgeman What Declarations do you mean Mr. Solliitor Mr. Sol. Gen. You know what Declarations I mean well enough but weâ—…l ask you particularly you know the Declaration that was made the 4th of April in the third Year of the King. was it Printed Mr. Bridgeman Yes it was Printed by the King's Order Mr. Sol. Gen. Was that of the 27th of April in the 4th Year of the King Printed Mr. Bridgman Yes they were both Printed by the King's Order Mr. At. Gen. Then the next thing in course is the Bishops Paper Sir Rob. Sawyer Mr. Bridgeman pray let me ask you one Question Did you ever compare the Print with that under Seal Mr. Bridgeman I did not compare them Sir Robert Sawyer Mr. Sol. Gen. He does Swear they were Printed by the King's Order Sir Robert Sawyer Good Mr. Sollicitor give me leave to ask him a Question Can you Swear then that they are the same Mr. Bridgman I was not asked that Question Sir. Mr. Sol. Gen. Come then Mr. Bridgeman I 'le ask you Do you believe they are the same Sir Rob. Sawyer Is that an Answer to my Question Mr. Sol. Gen. We must ask him Questions as well as you Sir Robert what say you Do you believe it to be the same Lord Ch. Iust. You hear Mr. Sollicitors Question answer it Mr. Bridgeman Mr. Bridgeman Yes my Lord I do believe it Lord Ch. Iust. Well that 's enough Mr. At. Gen. If there were occasion we have them here Compared and they are the same Sir Rob. Sawyer With Submission my Lord in all these Cases if they will prove any Fact that is laid in an Information they must prove it by those that know it of their own Knowledge Do you know it to be the same Mr. Sol. Gen. That 's very well Sir. Sir Rob. Sâ—…yer Ay so it is Mr. Sollicitor It is a wonderful thing my Lord that we cannot be permitted to ask a Question Do you know it to be the same Mr. Bridgeman I ask you again Mr. Bridgeman I have not compared them I tell you Sir Robert Sawyer Sir Rob. Sawyer Then that is no Proof Lord Ch. Iust. Would you have a Man Swear above his Belief he tells you he believes it is the same Sir Rob. Sawyer Is that Proof of an Information Lord Ch. Iust. Well you 'l have your time to make your Objections by and by Mr. At. Gen. Then Swear Sir Iohn Nicholas Sir Iohn Nicholas I am Sworn already Mr. At. Gen. I see you have a Paper in your Hand Sir Iohn Nicholas pray who had you that Paper from Sir Iohn Nicholas I will give you an Account of it as well as I can Mr. Pollixfen Before they go to another thing my Lord we think they have failed in their Proof of their Information about the Printing this Declaration Mr. At. Gen. Where is Mr. Hills Mr. Iust. Allyb. They have laid That it was printed by the King's Order and it is such a matter Mr. Sollicitor as you may clear if you will sure Mr. Sol. Gen. There is Mr. Hills now I see him L. C. Iust. I was going to give Order that you should send to the Printing-house for him Mr. Iust. Allyb. They may put this matter out of doubt too if they will on the other side for I see they have a Copy in Print and there 's the Original they may compare them if they please Mr. Sol. Gen. I am very glad to hear such a strong Objection Sir Rob. Sawyer We would clear the way for you Mr. Sollicitor Mr. Sol. Gen. No you put Straws in our way we shall be able enough to clear it without your help Swear Mr. Hills and young Mr. Graham here Hills and Graham sworn Mr. Sol. Gen. Mr. Graham did you compare any of these Printed Declarations with the Original Graham Yes I did compare some of them and did make Amendments as I went along Mr. Sol. Gen. 〈◊〉 one that you have compar'd with the Original Mr. Att. Gen. Hills is here himself we 'll ask him Are you sworn Sir Cryer He is sworn Mr. Att. Gen. Pray were the King's Declarations for Liberty of Conscience printed both of them Hills Ay an 't please you Sir. Mr. Att. Gen. You printed them I think Hills Yes I did print them Sir Rob. Sawyer Mr. Hills you say they were printed Upon your Oath after they were printed did you examin them with the Original under Seal Hills They were examined before they were printed Sir Rob. Sawyer Did You examin them Hills I did not here 's one that did Mr. Sol. Gen. Who is that Hills It is Mr. Williams here Mr. Sol. Gen. Swear him Williams sworn Mr. Sol. Gen. Do you hear Williams Do you know that the King's Declaration for Liberty of Conscience two of them one of the 4th of April and the other of the 27th of April were printed Williams Yes my Lord. Mr. Sol. Gen. Did you examin them after they were printed by the Copy they were printed by Williams Yes I did Mr. Sol. Gen. Where had you the Copy who had you it from Williams I had it from Mr. Hills Sir Rob. Sawyer Mr. Williams did you examin them with the Original under the Great Seal Williams The First Declaration I did Sir Rob. Sawyer The Second Declaration is the main Williams The Second was Compos'd by the First Sir Rob. Sawyer Why is there no more in the Second Declaration than there was in the First Williams Yes there is Sir. Sir Rob. Sawyer Did you examin That with the Original under the Great Seal Williams No I did not Mr. Sol. Gen. Can any one tell who did examin it under the Great Seal Mr. Finch Pray what did you examin it by Mr. Williams Williams By a Copy that I receiv'd from Mr. Hills Mr. Att. Gen. Then we will go on and we desire Sir Iohn Nicholas to give an account where he had that Paper that he has in his hand Mr. Finch My Lord it does not appear that
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
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
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
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
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
and an Affront put upon the Bishops they ought to make it out for their own Vindication and to prove themselves Innocent If they do that they do well and they ought to have Satisfaction â—…de them by those that have so highly injured them and the King cannot be better pleased I am sure than to find them so But if Men will look one way and act another they must expect to be dealt with accordingly Will any Man that has heard this Evidence and sees that these Gentlemen will not go the right way to work to prove their own Innocence believe them to be not Guilty 'T is plain they contrived it and signed it for can any one imagine that they set their Hands to a Paper that was not formed and contrived by themselves then let it go That this was done in another County and we cannot punish the Writing of it in this County yet still they are Guilty of causing it to be published in this County and for that we may punish them here We will be content with having that found that we have proved which certainly is an Offence Sir Rob. Sawyer We oppose that Sir. Mr. Sol. Gen. You oppose it I know you 'l oppose common Sense we don't speak to you we speak to the Court we are content with what is plain and do not desire to insist upon any strained Construction we say this is Natural Evidence for us If this thing be a Libel as we say it is then the causing it to be published is an Offence The Publication we â—…ay was here in Middlesex and of that there is Clear Evidence because it was found there and came from the King's Hand to whom it was directed and it could not come to the King's Hand out of their Custody without their Consent This we say is a clear Evidence of causing it to be published let the rest go as it will because we will take the easiest part of the Case and not go upon Strains Mr. Serj. Trinder The greatest Question is I think now come to the Publishing L. Ch. Iust. The Court is of Opinion that its coming to the King is a publishing Mr. Justice Powel Ay my Lord if it be proved to be done by them Mr. Serjeant Pemberton Before the Court deliver their Opinion we desire to be heard L. Ch. Iust. Brother you shall be heard in good time but let them make an end on the other side and when the King's Counsel have done we 'l hear you Mr. Serjeant Trinder My Lord upon the Question of Publishing it has been insisted upon and the Court seems to be very much of the same Opinion That the Writing of it is a Publishing That it is without Controversie if the Writing of it fell out to be in Middlesex where the Information is laid but that they would not have to be so by Argument because the Archbishop had kept in at Lambeth so long But suppose that it were so as they would have it that is only as to the Archbishop he being the Writer of it but yet notwithstanding that the other six might subscribe it in Middlesex taking it that there is such a Face in their Argument as they would have it Mr. Sol. Gen. We will lay no greater load on the other six than we do upon my Lord Archbishop and we say they are all Guilty of the Publication in Middlesex Mr. Serjeant Trinder Pray Sir spare me this Paper was in the Archbishops Custody and Power he making of it himself and regularly it could not have come out of his Custody in common Supposition but it must come with his Consent It was afterwards in the Power of the other six they had it to subscribe where the Subscription was non constâ—… they it may â—…e can prove it themselves but I will only deduce this Argument That if it after comes into Middlesex it must be taken by presumption to be subscribed by them there and published it must taken by Presumption so to be Lord Ch. Iust. No Brother we ought not to do any thing by presumption here Mr. Just. Powel No no by no means we must not go upon Presumptions but Proofs L. Ch. Iust. I will not presume it to be made in Middlesex Mr. Serj. Trinder But it is proved to be published in Middlesex Sir Robert Sawyer My Lord with submission there is no Evidence of the Publication Mr. Attor Gen. That the Court is to judge of Sir Rob. Sawyer Pray good my Lord what Instance of a Publication have they given Mr. Sol. Gen. The Court has heard â—…he Evidence we leave it there Sir Rob. Sawyer Was it their owning and acknowledging it was their Hands when the King asked them the Question at the Council-Table Surely the King's Counsel won't pretend that was a Publication when it was done at the King's Command it was certainly the King that published it then and not my Lords the Bishops Mr. Attor Gen. Well said Sir Rob. Sawyer Don't you remember that when Sir Blathwayt said the King gave it to be read and it was shewed to the Bishops L. Ch. Iust. I remember what Evidence Mr. Blathwayt gave of the Passages at the Council-Board very well and I know what Mr. Attorney did press about the Kings promising to take no advantage Mr. Attor Gen. My Lord Mr. Attorney is on the other side he did not press it L. Ch. Iust. Sir Robert Sawyer I mean I beg both your Pardons Gentlemen I think I have done Injury to you both Sir Rob. Sawyer My Lord we say there is no Evidence at all that ever this was sent to the King by the Archbishop or any of my Lords the Bishops And as for the Cases that they have put they might have put five hundred Cases and all nothing to the purpose Mr. Sol. Gen. So they might and done just as others had done before them Sir Rob. Sawyer And so are these for here is the Question We are in a Case where the Publication is that which makes it a Crime Now I would have them if they can put me any such Case and then apply it to this in William's Case the Question is quite otherwise and so in any Case of Treason it must be where-ever there is an Overt Act proved it is the Treasonable Intention and the ill Mind of the Traytor that is the Crime and the Treason the Overt Act is only to be the Evidence of it In that Case of Williams with submission my Lord the Publication was not at all necessary but the very secretest Act that could be done by him if it were an Act is an evidence of the Mind and so the sending of the Book to the King himself though no body else did see it was an Evidence of the Crime of Treason yet it could not be called a Pâ—…blication But in the other Case of Sir Baptist Hicks which was in the Star-Chamber about sending a Letter of Challenge it was plainly resolved that it was no Publication
Records in Parliament mentioned in their Petition and produce several Ancient Records of former Parliaments that prove this Point and particularly in the Time of Richard the Second concerning the Statute of Provisors where there were particular Dispensations for that Statute the King was enabled to do it by Act of Parliamentâ—… and could not do it without L. C. Iust. Pray Sir Robert Sawyer go to your Proofs and reserve your Arguments till afterwards Sir Rob. Sawyer My Lord I do but shortly mention these things so that my Lord as to the Matter of this Petition we shall shew you that it is true and agreeable to the Laws of the Land. Then my Lord as to the manner of delivering it I need say no more but that it is plain from their Evidence that it was in the most private and humble manner And as my Lord President said Leave was asked of the King for them to be admitted to present it Leave was given and accordingly they did it We come then my Lord to the third thing the Persons these noble Lords and we shall shew they are not Busie-Bodies but in this Matter have done their Duty and medled with their own Affairs That my Lord will appear First By the general Care that is reposed in them by the Law of the Land They are frequently in our Books called the King's Spiritual Judges they are intrusted with the Care of Souls and the Superintendency over all the Clergy is their principal Care. But besides this my Lord there is another special Care put upon them by the express Words of an Act of Parliament for over and above the general Care of the Church by virtue of their Offices as Bishops the Act of 1 Eliz. cap. 2. makes them special Guardians of the Law of Uniformity and of that other Law in His Late Majesty's Reign where all the Clauses of that Statute of 1 Eliz. are revived and made applicable to the present State of the Church of England Now in that Statute of 1 Eliz. there is this Clause And for the due Execution hereof the Queen 's Most Excellent Majesty the Lords Spiritual and Temporal and all the Commons in this present Parliament assembled do in God's Name earnestly require and charge all the Archbishops and Bishops and other Ordinaries that they do endeavour themselves to the utmost of their Knowledges that the due and true Execution hereof may be had throughout their Diocesses and Charges as they will answer before God for such Evils and Plagues wherewith Almighty God may justly punish his People for neglecting this good and wholsome Law. This is the Charge that lies upon the Bishops to take care of the Execution of that Law and I shall pray by and by that it may be read to the Jury Mr. Soll. Gen. That is very well indeed To what purpose Sir Rob. Sawyer So that my Lord by this Law it is plain that my Lords the Bishops upon pain of bringing upon themselves the Imprecation of this Act of Parliament are obliged to see it executed and then my Lord when any thing comes under their Knowledge especially if they are to be Actors in it that has such a tendency to destroy the very Foundations of the Church as the Suspension of all the Laws that relate to the Church must do it concerns them that have no other Remedy to address the King by Petition about it For that Mr. Attorney my Lord has agreed That if a proper Remedy be pursued in a proper Court for a Grievance complained of though there may be many hard Words that else would be scandalous yet being in a regular Course they are no Scandal And so it is said in Lake's Case in my Lord Hobbart My Lord we must appeal to the King or we can appeal to no body to be relieved against an Order of Council with which we are aggrieved and it is our Duty so to do according to the Care that the Law hath placed in us Besides my Lord the Bishops were commanded by this Order to do an Acâ—… relating to their Ecclesiastical Function to distribute it to be read by their Clergy And how could they in Conscience do it when they thought part of the Declaration was not according to Law Pray my Lord What has been the reason of His Majesty's consulting of his Judges And if His Majesty or any the great Officers by his Command are about to do any thing that is contrary to Law was it ever yet an Offence to tell the King so I always look'd upon it as the Duty of an Officer or Magistrate to tell the King what is Law and what is not Law. In Cavendish's Case in the Queen's time there was an Office granted of the Retorn of the Writs of Supersedeas in the Court of Common Pleas and he comes to the Court and desires to be put into the possession of the Office The Court told him They could do nothing in it but he must bring his Assize He applies to the Queen and she sends under the Privy Seal a Command to sequester the Profits and to take Security to answer thâ—… Profits as the Judgment of the Law should go But the Judges there return an Answer That it was against Law and they could not do it Then there comes a second Letter reciting the former and commanding their Obedience The Judges returned for Answer They were upon their Oaths and were sworn to keep the Laws and would not do it My Lord The like was done in the time of my Lord Hobbart We have it reported in Anderson in a Case where a Prohibition had gone There came a Message from Court that a Consultation should be granted and that was a Matter wherein there were various Opinions whether it was Ex Necessitate or Discretionary but there they return'd That it was against Law for any such Message to he sent Now here my Lord is a Case full as strong My Lords the Bishops were commanded to do an Act which they conceived to be against Law and they decline it and tell the King the reason and they have done it in the most humble manner that could be by way of Petition If they had done as the Civil Law terms it Rescribere generally that had been lawful but here they have done it in a more respectful manner by an humble Petition If they had said the Law was otherwise that sure had been no Fault but they do not so much as that but they only say it was so declared in Parliament and they declare it with all Humility and Dutifulness So that my Lord if we consider the Persons of the Defendants they have not acted as Busie-Bodies and therefore as this Case is when we have given our Evidence here will be an Answer to all the Implications of Law that are contained in this Information For they would have this Petition work by Implication of Law to make a Libel of it but by what I have said it will appear
it to be Law. Now we say This Declaration under the Great Seal is not agreeable to the Laws of the Land and that for this Reason Because it does at one Blow set aside all the Law we have in England My Lord If this be denied we must a little debate this matter for they are almost all Penal Laws not only those before the Reformation but since upon which the whole Government both in Church and State does in a great measure depend Especially my Lord in Matters of Religion they are all Penal Laws For by the Act of Uniformity which my Lords the Bishops are sworn to observe and adjured by an express Clause in the Act No Man is to preach unless he be Episcopally ordained no Man is to preach without a Licence If all this be set aside I confess then it will go very far into the whole Ecclesiastical Government If this be denied we are ready to argue that too L. C. I. They are to do so still Mr. Pollixfen My Lord I am sure the Consequence is otherwise if this Declaration signifie any thing And if it be the Will of the King my Lord the Will of the King is what the Law is If so be the King 's Will be not consonant to the Law it is not obliging My Lord The Cases that we have had of Dispensations are all so many strong Authorities against a general or particular Abrogation My Lord that is a Matter of Law which if it fall out to be any way doubtful it will be fit to have it debated and setled If they will say that the Penal Laws in Matters Ecclesiastical can be abrogated or nulled or made void pro tempore or for Life without the meeting of the King and People in Parliament I must confess they say a great thing as it is a Point of great Concern but I think that will not be said And all that has been ever said in any Case touching Dispensations proves quite the contrary and asserts what I affirm For Why should any Man go about to argue that the King may dispense with this or that particular Law if at once he can dispense with all the Law by an undoubted Prerogative This is a Point of Law which we insist upon and are ready to argue with them but we will go on with the rest of those things that we have offer'd And first we will read the Act of Uniformity made 1 Eliz. that Clause of it where they are so strictly charged to see to the Execution of that Law. This Act my Lord by the Act of Uniformity made in the Beginning of the late King's Reign is revived with all the Clauses in it relating to this Matter If then this be a Duty incumbent upon them and their Oaths require it of them and if they find that the Pleasure of the King in his Declaration is that which is not consonant to this Law what can they do Can any thing be more humble or done with a more Christian Mind than by way of Petition to inform the King in the Matter For I never thought it nor hath it ever sure been thought by any body else to be a Crime to petition the King For the King may be mistaken in the Law so our Books say and we every Day in Westminster-Hall argue against the King's Grants and say He is deceived in his Grants It is the great Benefit and Liberty which the King gives to his Subjects to argue the Legality or Illegality of his Grants My Lord When all this is done to make this to be a Libel by putting in the Words Malicious Seditious Scandalous and with an Intent to raise Sedition would be pretty hard My Lord We pray that Clause of the Statute may be read Mr. Soll. Gen. What for Mr. Pollixfen It is a general Law and therefore the Court will take notice of it and we pray the Jury may hear it read Mr. Soll. Gen. I agree it to be as Mr. Pollixfen has opened and I agree it to be as Sir Robert Sawyer has opened it Mr. S. Pemberton My Lord We shall put it upon a short Point My Lords the Bishops are here accused of a Crime of a very heinous nature as can be they are here branded and stigmatized by this Information as if they were seditious Libellers when my Lord it will in truth fall out that they have done no more than their Duty their Duty to God their Duty to the King and their Duty to the Church For in this Case that which we humbly offer to your Lordship and insist upon it as very plain is this That the Kings of England have no power to suspend or dispense with the Laws and Statutes of the Kingdom that establish our Religion That is it which we stand upon for our Defence And we say That such a Dispensing Power with Laws and Statutes is a thing that strikes at the very Foundation of all the Rights Liberties and Properties of the King's Subjects whatsoever If the King may suspend the Laws of the Land which concern our Religion I am sure there is no other Law but he may suspend And if the King may suspend all the Laws of the Kingdom what a Condition are all the Subjects in for their Lives Liberties and Properties All at Mercy My Lord The King 's Legal Prerogatives are as much for the Advantage of his Subjects as of himself and no Man goes about to speak against them But under pretence of Legal Prerogatives to extend the Power of the King to support a Prerogative that tends to the Destruction of all his Subjects their Religion and Liberties in that I think they do the King no Service who go about to do it But now we say with your Lordship's Favour that these Laws are the great Bulwark of the Reformed Religion they are in truth that which fenceth the Religion and Church of England and we have no other Humane Fence besides They were made upon a Fore-sight of the Mischief that had and might come by false Religions in this Kingdom and they were intended to defend the Nation against them and to keep them out particularly to keep out the Romish Religion which is the very worst of all Religions from prevailing among us and that is the very Design of the Act for the Tests which is intituled An Act to prevent Dangers that may happen from Popish Recusants My Lord If this Declaration should take effect what would be the End of it All Religions are let in let them be what they will Ranters Quakers and the like nay even the Roman Catholick Religion as they call it which was intended by these Acts of Parliament and by the Act of Uniformity and several other Acts to be kept out of this Nation as a Religion no way tolerable nor to be endured here If this Declaration take effect that Religion will stand upon the same Terms with the Protestant Religion Suspend those Laws and that Romish
to distribute this Declaration in all their Churches which was to tell the People they ought to be under no Law in this Case which surely was a very great Pressure both in point of Law and Conscience too they lying under such Obligations to the contrary as they did With submission to your Lordship and you Gentlemen of the Jury If they did deliver this Petition Publishing of it I will not talk of or there has been no proof of a Publication but a delivering of a Petition to his Majesty in the most secret and decent manner that could be imagined My Lords the Bishops are not guilty of the Matter Charged upon them in this Information it has been expresly proved that they did not go to disperse it abroad but only deliver'd it to the King himself And in short my Lord if this should be a Libel I know not how sad the Condition of us all would be it we may not Petition when we suffer Mr. Finch My Lord I Challenge them to shew us any one Instance of such a Declaration such a General Dispensation of Laws from the Conquest till 1672. The first Umbrage of such a thing is that of 〈◊〉 1662 but your Lordship heâ—…s the Declaration of the Parliament upon it Before that as there was no such thing so your Lordship sees what the Parliament did to enable the King not to do this thing but something like it in Richard the Seconds Time where you see the Parliament did give the King a Power to Dispense with the Statute of Provisors for a time but at the same time declared that very Grant of their own to be a Novelty and that it should not be drawn into Consequence or Example My Lord we shall leave it upon this Point to suspend Laws is all one as to abrogate Laws for so long as a Law is suspended whether the Suspension be Temporary or whether it be for ever whether it be at once or at several times the Law is abrogated to all Intents and Purposes But the Abrogation of Laws is part of the Legislature that Legislative Power is lodged as I said before and I could never find it otherwise in all our Law in King Lords and Commons Ld. Ch. Iust. You did open that before Mr. Finch Mr. Finch With this my Lord That my Lords the Bishops finding this Order made upon them to publish this Declaration did what in Duty they were bound to do and unless the Jury do find that they have done that which is contrary to Law and to the Duty of their places and that this Petition is a Libel and a seditious Libel with an intent to stir up Sedition among the People We rely upon it My Lords the Bishops can never be found Guilty upon this Information Ld. Ch. Iust. Have you now done Gentlemen Mr. Finch Yes my Lord till they give us further occasion if they have any other Evidence to offer we must Answer it if not this is the Answer we give to what they have said Mr. Solicit Gen. We make no Bargain with you If you have done say so Ld. Ch. Iust. You must know that you are not to have the last word Mr. Solicit Gen. You have been three hours already if you have any more to say pray conclude Mr. Finch If they say they have no more Evidence then we know what we have to do Ld. Ch. Iust. If you do say any thing more pray let me advise you one thing don't say the same thing over and over again for after so much time spent it is â—…irksome to all Company as well as to me Mr. Finch My Lord we have no more Evidence to offer to your Lordship at present unless they by offering new Evidence give us occasion to Reply upon them Ld. Ch. Iust. Gentlemen you shall have all the Legal favour and advantage that can be but pray let us keep to an orderly decent Method of proceeding Sr. Rob. Sawyer Pray my Lord favour me a word before we conclude My Lord I do find very few Attempts of this Nature in any Kings Reign In the Reign of Henry the Fourth there was an Act of Parliament that Foreigners should have a Free Trade in the City of London notwithstanding the Franchises of London after the Parliament rose the King issued out his Proclamation forbidding the Execution of that Law and Commanding that it should be in Suspence Usque ad Proximum Parliamentum yet that was held to be against Law. Ld. Ch. Iust. Sir Robert Sawyer that which you are to look to is the publishing of this Paper and whether it be a Libel or no. And as to the business of the Parliaments you mentioned they are not to the purpose Sir Rob. Sawyer My Lord I say I would put it where the Question truly lyes if they don't dispute the Point then we need not labour it but I dont know whether they will or no and therefore I beg your Lordships favour to mention one Case more and that is upon the Statute of 31 Hen. 8. cap. 8. Which enables the King by Proclamation in many Cases to create the Law which Statute was repealed by 1. Edw. 6. cap. 12. That very Act does recite that the Law is not to be altered or restrained but by Act of Parliament and therefore the Parliament enables the King to do so and so But that was such a Power that the Parliament thought not fit to continue and it was afterwards Repealed but it shews that at that time the Parliament was of the same Opinion as to this Matter that other Parliaments have been since Mr. Sommers My Lord I would only mention the great Case of Thomas and Sorrel in the Exchequer Chamber upon the validity of a Dispensation of the Statute of Edward the Sixth touching Selling of Wine There it was the Opinion of every one of the Judges and they did lay it down as a setled Position that there never could be an Abrogation or a Suspension which is a Temporary Abrogation of an Act of Parliament but by the Legislative Power That was a Foundation laid down quite thorough the debate of that Case Indeed it was disputed how far the King might dispense with the Penalties in such a particular Law as to particular Persons but it was agreed by all that the King had no power to suspend any Law And my Lord I dare Appeal to Mr. Attorney General himself whether in the Case of Godden and Hales which was lately in this Court to make good that Dispensation he did not use it as an Argument then that it could not be expounded into a Suspension He admitted it not to be in Kings power to suspend a Law but that he might give a Dispensation to a particular Person was all that he took upon him to justifie at that time My Lord by the Law of all civilized Nations if the Prince does require something to be done which the Person who is to do it takes to be unlawful
it is not only lawful but his Duty Rescribere Principi this is all that is done here and that in the most humble manner that could be thought of your Lordship will please to observe how far it went how careful they were that they might not any way justly offend the King. They did not interpose by giving advice as Peers they never stirr'd till it was brought home to themselves when they made their Petition all they beg is that it may not so far be insisted upon by his Majesty as to oblige them to read it whatever they thought of it they do not take upon them to desire the Declaration to be revoked My Lord as to Mattters of Fact alledged in the said Petition that they are perfectly true we have shewn by the Journals of both Houses In every one of those Years which are mentioned in the Petition this Power of Dispensation was considered in Parliament and upon debate Declared to be contrary to Law there could be no Design to diminish the Prerogative because the King hath no such Prerogative Seditious my Lord it could not be nor could possibly stir up Sedition in the minds of the People because it was presented to the King in private and alone false it could not be because the Matter of it is true There would be nothing of Malice for the occasion was not sought the thing was pressed upon them and a Libel it could not be because the intent was innocent and they kept within the bounds set by the Act of Parliament that gives the Subject leave to apply to his Prince by Petition when he is agrieved Mr. Att. Gen. Have you done Gentlemen Mr. Finch We have done Sir. Mr. Att. Gen. My Lord I shall be a great deal more merciful to your Lordship and the Jury than they have been who have spent these four hours in that which I think is not pertinent to the Case in Question They have let themselves into large Discourses making great Complaints of the Hardships put upon my Lords the Bishops by the Order of Councel to read his Majesties Declaration and putting these words into the Information of Seditious Malicious and Scandalous But my Lord I admire that Sir Robert Sawyer should make such Reflections and Observations upon these words when I am sure he will scarce find any one of his own exhibiting that has so few of those aggravating words as this has and therefore that might have been very well spared especially by him In the next place my Lord we are told what great Danger our Religion is in by this Declaration I hope we have an equal concern for that with them or any Person else whatsoever But however I am sure our Religion teaches us not to preserve our Religion or our Lives by any illegal Courses and the Question is whether the Course that my Lords the Bishops have taken to preserve as they say our Religion be Legal or not if it be not Legal then I am sure our Religion will not justifie the using such a Course for never so good an End. My Lord for the thing it self I do admire that they in so long a time and search that they have made should not which I expected produce more Presidents of such a Paper as this is They challenge us to shew that ever there was any such Declaration as this I 'le turn the same Challenge upon them Shew me any one instance that ever so many Bishops did come under pretence of a Petition to reflect upon the King out of Parliament Sir Robert Sawyer Is that your way of Answering Mr. Attorney Mr. Attorney General Pray Sir Robert Sawyer you have had your time don't interrupt us sure we have as much right to be heard as you Lord Chief Iustice. You have been heard over and over again Sir Robert Sawyer already Sir Robert Sawyer My Lord I don't intend to interrupt him Mr. Solicitor General We cannot make them be quiet they will still be chopping in upon us Mr. Attorney General That is an Art that some People have always practised not to permit any body to speak but themselves But my Lord I say that those few Instances that they have produced are nothing at all to this Matter that is now upon Trial before your Lordship and this Jury nay they are Evidences against them for they are only matters transacted in Parliament which are no more to be applied to this thing that is in Controversy now than any the most remote matter that could be thought of and though they have gone so high in point of time as to the Reign of Richard the Second yet they have nothing between that and the late Kings Reign to which at last they have descended down But my Lord I say that all the talk of Richard the Seconds time is wholly out of the Case truly I do not doubt but that in Richard the Seconds time they might find a great many Instances of some such sort of Petitioning as this for our Histories tell us that at that time they had 40000 Men in Arms against the King and we know the troubles that were in that Kings Reign and how at length he was deposed but certainly there may be found Instances more applicable to the Case than those they produce as for those in King Charles the Seconds time do they any ways justifie this Petition for now they are upon justifying the words of their Petition that this power has been declared to be illegal in 1662 1672 and 1685. For what was done in 1662 do they shew any thing more than some Debates in the House of Commons And at last an Address an Answer by the King a Reply of the Commons and then the thing dies Pray my Lord is a Transaction in the House of Commons a Declaration of Parliament Sure I think no one will affirm that any thing can be a Declaration of Parliament unless he that is the Principal part Concurs who is the King for if you speak of the Court of Parliament in a Legal sense you must speak of the whole Body King Lords and Commons and a Declaration in Parliament must be by all the whole Body and that is properly an Act of Parliament Why then they come to the year 1672 where your Lordship observes that the late King did insist upon his Right for after the Dispute which was in 1662 his Majesty did issue out another Declaration and when it comes to be debated in Parliament he insists upon his Right in Ecclesiastical Matters and though his Declaration was Cancelled yet there is no formal Disclaimer of the Right My Lord after all how far these things that they have offered may work as to the point that they have debated I shall not now meddle with it nor give your Lordship any trouble about it because it is not at all pertinent to the Case in question for I do after all this time and pains that they have spent take leave to say
and a Man must not be his own Judg nor his own Carver nor must every Man create Difficulties of his own nor set upon Petitioning in this sort But there I lay my Foundation That in such a matter as this there ought to have been the Impeachment of the Commons in Parliament before these Lords could do any thing and I know nothing can be said for the Bishops more than this That they were under an Anathema under the Curse that Sir Robert Sawyer speaks of and for fear of that they took this Irregular Course But some would say Better fall into the hands of God than of Men some would say so I say I know not what they would say but these being the Methods that these Lords should have taken they should have pursued that Method the Law should have carved out their Relief and Remedy for them but they were for going by a new Fancy of their Own. My Lord the Law continued thus and was practised so till the 3. Hen. 7. where the Grievance was found that Offences in the Intervals of Parliament could not be well punished and then comes the Statute that sets up the Court of Star-Chamber and there Men were often brought to Judgment and Punishment for their Sins and though very great Power was given them yet they arrogated to themselves a greater and therefore that Court is abolished by the Statute of the 15th Car. 1. and what is the reason of abolishing that Statute Because the Star-Chamber did not keep within their bounds that the Law set them but assumed to themselves a larger Power than the Law would allow and grew very Exorbitant and very Grievous to the Subject And another reason was which the Statute of 15th Car. 1. founded it self upon because there was nothing that was brought in Judgment before that Court but might be relieved and remedied in the oridinary methods of Justice in the Courts of Westminster Hall So that upon those two Considerations because that Course was exorbitant and because all the Sins and Misdemeanours that were punished there might be punished in an ordinary way of Law in another Court and therefore there was no need of that Court and so it was abolished and the Subject was pretty safe If there was a Crime committed here a Man might come properly before your Lordship into this Court and have it punished My Lord they find fault with the Words in the Information and they say why are these Words put in Seditious Malicious If the matter be Libellous and Seditious we may Lawfully say it and it is no more than the Law speaks it results out of the Matter it self and if it be a Libellous Paper the Law says it is Maliciously and Seditiously done and these Gentlemen need not quarrel with us for so are all the Informations in all times past and 't is no more than the Vi Armis which is Common Form. It may be said How can the publishing of a Libel be said to be done Vi Armis That is only a Supposition of Law and they may as well Object to the conclusion of the Information that it was Contra Coronam Dignitatem Domini Regis if it be an Illegal thing or a Libel these are necessary Consequences it is no more than the speaking of the Law upon the Fact. But my Lord let us a little consider whether this Matter were Warrantable and whether they had any Warrant to do what was done they pretend it was done upon this Account That the King had set forth a Declaration and had Ordered them to Read it which to excuse themselves from they make this Petition or this Libel call it what you will and they use this as the main Argument That they say the King has done Illegally and they tell the King plainly so that it is Illegal for they take notice of this Declaration and say it is Illegal because it is contrary to the Declarations of Parliament in 1662 1672 and 1685. Pray my Lord let us consider a little whether there be any Declaration in Parliament that they have given Evidence of Have they read any Declaration of the Parliament in 1662 What is a Declaration in Parliament but a Bill that is passed by the King Lords and Commons That we know to be the meaning and no other if it pass the Commons it is no Declaration in Parliament nay if it pass the Lords and Commons it is not a Declaration in Parliament except it also pass the King all these things are Nullities and the Law takes no notice of them we have it in our Books over and over and no Court ought to suffer such Evidence to be given I know these Gentlemen are very well acquainted with the Authority in Fitz-Herbert's Title Parliament there was an Act that was said to be by the King and the Lords but because the Commons did not agree to it it is declared and adjudged to be a Nullity and the Court would take no notice of it and how can any Man call that a Declaration in Parliament which is only a Vote of the House of Commons or of the Lords No sure that is one of the Heads I go upon It 's not a Declaration in Parliament unless it be by Act of Parliament Indeed my Lord there is another sort of a Declaration in Parliament before the Lords as they are a Court of Judicature and that is a fair Declaration too for if any thing comes Judicially before the Lords either by Writ of Error or by natural Appeal from any of the other Courts or by Adjournment and there be any Judgment given That is a Declaration in Parliament and may be fairly so called So likewise there is another Judicial Declaration which is when any thing comes before the Lords Judicially upon an Impeachment of the Commons and they give Judgment upon that Impeachment That is a Declaration in Parliament But to say that there is any other Declaration in Parliament is to say more than these Gentlemen can make out if they will shew me any such I will submit to them and not speak a Word against my Lords the Bishops but if these Learned Gentlemen cannot shew me any such then they have not said that was true in this Petition that it was so and so declared in Parliament For let us consider what there is in this Case upon this Evidence for that in 1662. is only a Vote and an Opinion of the House of Commons and I always understood and have been told so by some of the Gentlemen of the other side that such a Vote signifies nothing But besides it seems to be a mistaken Address for they say in it That the Declaration in 1662. which they Address against was the first Declaration of that sort to suspend Laws without Act of Parliament and yet in the same breath they do take notice of the King's Declaration from Breda But here is a mighty Argument used from the King's Speech That
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 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