believe it or do you not Mr. Middleton It is like it that 's all I can say Mr. Sol. Gen. Cannot you tell whether you believe it or not believe it Mr. Middleton I do believe it is his hand Mr. Sol. Gen. Did you ever see him write for I would clear this matter beyond exception Mr. Middleton I have seen his Lordship write but I never stood by him so near as to see him make his Letters Mr. Sol. Gen. Is that his Hand-writing Mr. Middleton It is like it I believe it is his Mr. Sol. Gen. You did not guide his Hand I believe Do you know my Lord of Chichester's Hand-writing Mr. Middleton Sir I am acquainted with none of their Hands but with my Lord of Canterbury's and my Lord of Ely's Mr. Sol. Gen. Do you know my Lord of Peterburgh's Hand-writing Mr. Middleton I had my Lord of Peterburgh's Writing two years ago for some money but I cannot say this is his Mr. Sol. Gen. Do you believe it to be his Mr. Middleton I never took notice of it so much as to say I believe it to be like it I never saw it but once Mr. Sol. Gen. Do you know any other of the Names there What say you to the Bishop of Bristol's Name Mr. Middleton I saw once my Lord of Bristol's Hand-writing Mr. Sol. Gen. What say you to that Writing there Mr. Middleton It is like it Mr. Sol. Gen. Do you believe it to be his or no Mr. Middleton Truly that I cannot say for I never saw it but once Lord Ch. Iust. You never saw him Write did you Mr. Middleton No my Lord I never did Mr. Sol. Gen. Then we will call Sir Thomas Pinfold and Mr. Clavel Sir Thomas Pinfold is there Swear him Sir Thomas Pinfold Sworn Mr. Sol. Gen. Sir Thomas Pinfold do you know my Lord Bishop of Peterburgh's Hand-writing Sir Thomas Pinfold Truly not very well I never saw but one Letter from him in my Life shew me his Hand and I will tell you Which was done Mr. Sol. Gen. Well Sir what say you to it Sir Tho. Pinfold Then upon my Oath I say I cannot well tell upon my own Knowledge that it is his Hand Mr. Sol. Gen. I ask you do you believe it to be his Hand Sir Tho. Pinfold Sir upon the Oath that I have taken I will answer you that upon this account that I have heard there was a Paper delivered by my Lords the Bishops to the King and this Paper that you offer me I suppose to be the same upon that Score I do believe it but upon any other Score I cannot tell what to say Mr. Sol. Gen I ask you upon your Oath Sir do you believe it is his Hand-writing or no Sir Tho. Pinfold Sir I have answered you already that upon my own Knowledge I cannot say it is his Hand-writing but because I have heard of such a Paper I do believe it may be his Lord Ch. Iust. Did you ever see my Lord Bishop write Sir Tho. Pinfold I have been in his Chamber several times when he has been Writing but I had more Manners than to look upon what he Writ Lord Ch. Iust. Did you never see him write his Name Sir Tho. Pinfold I do not know that I ever saw him write his Name but I have seen him Writing I say and so my Lord Bishop may have seen me Writing but I believe he does not know my Hand Mr. Sol. Gen. You have seen him write you say Sir Tho. Pinfold I tell you Mr. Sollicitor I have been in his Chamber when he has been Writing but I had more Manners than to look over him Mr. Iust. Powel Then you did never see any of that Writing Sir Tho. Pinfold I cannot say I did my Lord. Mr. Att. Gen. Pray did you never see any of his Writing but that Letter you speak of Sir Tho. Pinfold No not that I remember Mr. Iust. Powel Mr. Sollicitor you must call other Witnesses for this does not prove any thing Mr. At. Gen. We will go on Swear Mr. Clavel Mr. Clavel Sworn Mr Sol. Gen. Do you know my Lord Bishop of Peterburgh's Hand-writing or no Mr. Clavel I have seen it many times Mr. Sol. Gen. Do you know it when you see it Mr. Clavel I believe I do Sir. Mr. Sol. Gen. Pray look upon that Paper and upon your Oath tell us do you believe that Name to be his Writing or no Mr. Clavel I do believe it is my Lord. Mr. At. Gen. Pray look upon the rest of the Hands there do you know any of the other Names Mr. Clavel No I do not Mr. Att. Gen. Have you ever seen any of their Writing Mr. Clavell It is probable I may have seen some but do not now remember it Mr. Sol. Gen. I think you are a Bookseller Mr. Clavell Mr. Clavell Yes I am so Sir. Mr. Sol. Gen. I suppose you have had some Dealings with them in the way of your Trade Did you never see any of their Writing Mr. Clavell I have seen the Names of some of them but it is so long since that I cannot Remember L. C. I. Did you ever see my Lord of Peterborough Write Mr. Clavell I cannot tell whether ever I saw him Write his Name or no but I have had several Letters from my Lord of Peterborough Mr. Sol. Gen. Is that his Hand-writing Mr. Clavell I cannot say it is I believe it is Mr. Sol. Gen. You have had Letters from him you say Mr. Clavell Yes and it seems to be like his Hand Mr. Pollixfen But you never saw him Write his Hand you say Mr. Clavell I cannot say I ever did Mr. Sol. Gen. These Letters that you have received from my Lord of Peterborough did he own them Do you think they were Counterfeit or of his own Hand-writing Mr. Clavell I suppose he has owned them Sir. Mr. I. Powell But you must Answer directly Sir Did he own them Mr. Sol. Gen. What did those Letters concern were they about Books or what Mr. Clavell They were sometimes about one business sometimes about another Mr. Sol. Gen. Was the subject-matter of any of these Letters about Mony and was it paid you Did you receive or did you give any account of it Mr. Clavell They were about several Businesses L. C. I. Look you Mr. Clavell you must give us as particular account as you can Mr. Sol. Gen. Pray Sir upon those Letters were the things done that those Letters required Mr. Clavell Yes they were Mr. Sol. Gen. Did you do your part Mr. Clavell Yes I did Mr. Sol. Gen. Now I would ask you Do you believe that Name of my Lord Bishop of Peterborough to be the Hand-writing of my Lord Bishop Mr. Clavell I believe it is Mr. I. Powell Do you know that those Letters that you say you received from my Lord were of my Lords own Hand-writing Do you Swear that Mr. Clavell My Lord I cannot Swear that Mr. Finch Do you know whether the Letters
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
mistake he own'd a Letter that he had writ to the Bishop of Oxford to be his Hand-writing and by comparison of this with that says he I take this to be his Hand-writing Mr. Brooks That is my meaning my Lord. Mr. Sol. Gen. Pray speak out and tell us what are the reasons that makes you say you believe this to be the Bishop of Ely's Writing Mr. Brooks Because it resembles a Letter that I have by me of his writing to the Bishop of Oxford Mr. Sol. Gen. And you say he own'd that Letter to be his Mr. Brooks My Lord Bishop of Oxford did answer it and I waited upon the Bishop of Ely with the Answer and he did own it Sir Geo. Treby How did he own it Sir Mr. Brooks I had some Communication with my Lord of Ely about the substance of that Letter and therefore I apprehended he own'd it Mr. Iust. Powell That 's a strange Inference Mr. Sollicitor to prove a man's Hand Mr. Att. Gen. We have more Evidence but let this go as far as it can Mr. Serj. Pemberton Certainly my Lord you will never suffer such a Witness as this L. C. Iust. Brother Pemberton I suppose they can prove it otherwise or else this is not Evidence Mr. Iust. Powell So they had need for it is a strange Inference of Mr. Sollicitor that this is a Proof of my Lord of Ely's Hand-writing Mr. Iust. Holloway The Bishop of Oxon was dead before any of this matter came in agitation Mr. Sol. Gen. My Lord we will bring other Proofs Call Mr. Chetwood Mr. Smith Mr. Chetwood and Mr. Smith sworn Mr. Sol. Gen. Mr. Chetwood we would know of you if you know my Lord Bishop of Ely's Hand-writing Mr. Chetwood I never saw him write Mr. Sol. Gen. That 's not an Answer to my Question Do you know his Hand-writing Mr. Chetwood I do not certainly know it Mr. Sol. Gen. Have you seen any of it Mr. Chetwood I have seen my Lord of Ely's Writing that has been said to be his L. C. Iust. But surely you had better take a Witness that has seen him write Mr. Iust. Powell I think 't is hardly possible for a man to prove his Hand that has not seen him write L. C. Iust. I think 't is better proof indeed to bring some that has seen him write Mr. Chetwood My Lord 't is a long time since I saw my Lord of Ely's Writing L. C. Iust. Pray bring some other Proof if you have it Bp. of Peterburgh My Lord we are here as Criminals before your Lordship and we are prosecuted with great Zeal I beg your Lordship that you will not be of Councel against us to direct 'em what Evidence they shall give L. C. Iust. My Lord of Peterburgh I hope I have not behaved my self any otherwise hitherto than as becomes me I was saying this and I think I said it for your Lordships advantage That this was not sufficient Proof and I think if your Lordship observed what I said it was for you and not against you Bp. of Peterb It was to direct them against us how they should give Evidence Mr. Serj. Pemberton Pray my Lord of Peterburgh sit down you 'll have no wrong done you Sir. Rob. Sawyer We that are of Council will take care of that and pray my Lord will you please to pass it by L. C. Iust. We are not used to be so serv'd and I will not be used so Mr. Sol. Gen. If your Lordship pleases to pass that by for what your Lordship said was in favour of my Lords the Bishops but I see they do not take it so Mr. Att. Gen. Pray Mr. Chetwood do you look upon the Name of my Lord of Ely do you believe that to be his Hand-writing Mr. Chetwood I do believe it is Sir Rob. Sawyer That 's very well when he says he never saw him write Mr. Iust. Powell What is the reason of that belief of his I would feign know Mr. Chetwood I have formerly seen his Hand I think it was his but I never saw Lord of Ely write his Hand Sir Rob. Sawyer Then the Question is Whether this be Evidence Mr. Finch How do you know that that which you saw formerly was my Lord of Ely's Hand Mr. Chetwood I have no such Certainty as positively to swear that that was his Hand Mr. Sol. Gen. We will go on to other Proofs and if we want better Evidence at the end we will argue with them Mr. Chetwood I am not certain that what I saw was my Lord of Ely's Hand-writing because I never saw him write Mr. Sol. Gen. You do very well to shew your good affection Mr. Att. Gen. Mr. Smith I would ask you this Question Do you know my Lord of Ely's Hand-writing Mr. Smith I have seen it often Mr. Att. Gen. Look upon the Name of my Lord of Ely in that Paper Do you believe it to be my Lord's Hand-writing or no Mr. Smith I did not see him write it Sir I can not tell whether it is or no. L. C. Iust. Did you ever see his Name Mr. Smith Yes but it was a great while ago and here are but seven Letters and I cannot judge by that I was better acquainted with his Hand-writing heretofore Mr. Sol. Gen. Pray Sir answer me Do you believe it to be his Writing or do you not Mr. Smith I believe it may for I did not see him write it Mr. Sol. Gen. But my Question is Do you believe it or do you not Mr. Smith I say I was better acquainted with it heretofore than I am now Mr. Sol. Gen. But pray answer my Question Do you believe that to be my Lord of Ely's Hand-writing or do you not Mr. Smith I believe it may Sir. Sir Rob. Sawyer Why do you believe it Mr. Smith I have no other reason to believe it but because I have seen something like it Mr. Iust. Powell How long ago is it since you saw him write Mr. Smith I have not seen him write so as to take notice of it for some years I could better judge of it when he writ his Name Turner than now it is Ely because there was more Letters to judge by Mr. Middleton sworn L. C. Iust. Here 's Mr. Middleton what do you call him for Mr. Sol. Gen. To prove many of their Hands Mr. Att. Gen. Pray shew him that Paper Mr. Sol. Gen. First Mr. Middleton do you know my Lord Archbishop's Hand-writing Mr. Middleton I have seen his Grace's Hand-writing Mr. Sol. Gen. Do you believe it to he his Mr. Middleton It is very like it Mr. Sol. Gen. But do you believe it or do you not Mr. Middleton I do believe it Mr. Sol. Gen. Do you know my Lord Bishop of St. Asaph's Hand-writing Mr. Middleton I never saw it as I know of Mr. Sol. Gen. What do you say to my Lord of Ely his Name is next Mr. Middleton It is like his Lordship's hand Mr. Sol. Gen. Do you
that you received as you say were written by my Lord himself or by his Secretary Mr. Clavell I have received Letters from him and his Secretary too Sir G. Treby But were you present with him when he writ any Letters with his own Hand Mr. Sol. Gen. You do not mean a Letter to your self sure Sir George Sir G. Treby No Sir I say any Letters Mr. Clavell I have been present with my Lord often but I cannot say I have seen my Lord write L. C. I. He has here told you he has had several Letters of my Lords own Hand and from his Secretary too Mr. I. Powell He has said it but you see he says he never saw him write Mr. Sol. Gen. We have given Evidence against my Lord Arch-Bishop Lord Bishop of Ely St. Asaph Peterborough and Bristol Mr. I. Powell Certainly Mr. Sollicitor you mistake But go on Mr. Sol. Gen. We have given Evidence I say against them Sir but whether it be sufficient Evidence we shall Argue by and by Call Mr. Hooper and Mr. Chetwood again Mr. Chetwood appeared Mr. Sol. Gen. Do you know the Hand-writing of my Lord Bishop of Bath and Wells Mr. Chetwood I have seen it Twice or Thrice but it is a considerable time since I did see it Mr. Sol. Gen. Do you believe that is his Hand-writing Mr. Chetwood I never saw him writâ—… his Name in my Life Mr. Sol. Gen. Pray look upon the Name and tell us what you believe of it Mr. Chetwood I believe it may but I do not certainly know it to be his Hand I rather believe it is my Lord Bishop of Bath and Wells his Hand than I believe that other to be my Lord of Peterboroughs Sir G. Treby Do you believe that to be my Lord of Peterborough's Hand or no Mr. Chetwood I say I rather believe that this is the Bishop of Bath and Wells his Writing than that which is above it or below it to be their Writing but truly I do not distinctly know my Lord Bishop of Bath and Wells his Hand Mr. Sol. Gen. Call Mr. Hooper L. C. I. You are very lame in this matter Mr. Sol. Gen. The Witnesses are unwilling and we must find out the Truth as well as we can Mr. Hooper did not appear Mr. Sol. Gen. Call Mr. Iames and Mr. Powell Mr. James appeared and was Sworn Mr Sol. Gen. Do you know my Lord Bishop of Bristol's Writing Mr. Iames Mr. Iames. Yes I believe I do but I am not so certain because my Lord Writes several times several Hands Mr. Sol. Gen. Shew him the Paper Is that my Lord of Bristol's Hand Mr. Iames. I cannot say it is or no. Mr. Sol. Gen. What do you believe Mr. Iames. It looks like his Hand and that 's all I can say Mr. Sol. Gen. But pray hearken and Answer to what I ask you you are prepared for one Question it may be and I shall ask you another upon your Oath Do you believe it to be the Hand-writing of my Lord of Bristol Mr. Iames. Upon my Oath I can only say it looks like it that 's all L. C. I. Did you ever see him Write Mr. Iames. Yes my Lord I have seen his Hand-writing several times and it is like his Hand-writing that is all I can say Mr. Sol. Gen. Sir remember you are upon your Oath and Answer my Question Mr. Iames. Upon my Oath I know no more than that Sir William Williams Mr. Sol. Gen. I ask you Sir whether you believe it to be his Hand or not Mr. Iames. My Lord it looks like his Hand and it may be his Hand Mr. Att. Gen. But you do think and believe one way or other What do you believe Mr. Iames. It may be his Hand for what I know and it may not Mr. Sol. Gen. It may be your Hand Mr. Iames. No Sir it cannot be mine I am sure Mr. Sol. Gen. What do you believe Mr. Iames. I believe it may be his Hand or it may not be his Hand that is all I can say L. C. I. Come Sir you must Answer fairly Do you believe it to be his Hand or do you not Mr. Iames. Yes I do believe it Mr. Att. Gen. You are very hard to believe methinks Mr. Iames. No I am not Mr. Sol. Gen. You do very well now Mr. Iames when you do well we 'll commend you Mr. Att. Gen. Call Mr. Nathaniel Powell Mr. Powell was Sworn Mr. Sol. Gen. Pray Sir let 's know what 's your Name Mr. Powell My Name is Nathaniel Powell Mr. Sol. Gen. Pray do you know the Hand-writing of my Lord Bishop of Chichester Mr. Powell I have not seen the Paper Sir. Mr. Sol. Gen. Do you know his Hand-writing Mr. Powell Yes I believe I do Mr. Sol. Gen. Look upon that Name of his Mr. Powell I did not see my Lord Write that Mr. Sol. Gen. Who says you did no Body asks that of you how you Answer Pray Sir remember your Oath and Answer seriously Do you believe it to be his Writing or no Mr. Powell I believe it is like my Lord's Hand-writing but I did never see him Write it Mr. Sol. Gen. No Body says you did Mr. Powell Therefore I cannot Swear positively it is his Hand Mr. Sol. Gen. We do not ask that neither Mr. Powell I cannot tell whether it be his Hand or no. L. C. I. Sir you must Answer the Question directly and seriously Do you believe it or do you not believe it Mr. Powell I cannot tell what to believe in the Case Mr. Sol. Gen. Then I ask you another Question upon your Oath Do you believe it is not his Hand Mr. Powell I cannot say that neither Mr. Sol. Gen. Once again I ask you upon your Oath Do you believe it to be his Hand I ask you plainly and let Mankind Judge of you Mr. Powell I tell you Sir I cannot tell what to believe Mr. Sol. Gen. My Lord if these things be endured there will be an end of all Testimony if Witnesses do not answer fairly to the Questions that are asked them Mr. I. Powell Truly to me for a Man to Swear his Belief in such a matter is an extraordinary thing Mr. Sol. Gen. He is obliged to answer Questions when they are fairely put to him Mr. Pollixfen I think that is a hard Question not to be Answered Mr. Sol. Gen. Make your Exceptions to the Evidence if you please L. C. I. First he says He knows his Hand then he says He has seen him write and then he says He did not see him write this but he shuffles he won't answer whether he believes it or not Mr. Pollixfen The Question is Whether belief in any case be Evidence Mr. Sol. Gen. If they have a mind to a Bill of Exceptions upon that point let them Seal their Bill and we 'll Argue it with them when they will in the mean time we 'll go on and that which we now pray my Lord is That this Paper
never published for the Question was before the Court whether this Sealing of it up and not delivering it to any other body were a Publication the Court was of Opinion that the very Writing of it was a Publication they did not value the delivery of it to the Prince but it was proved he Writ it and that made it Treason My Lord we have Cases enough in my Lord Hobart for this Matter Sir Baptist Hick's Case and my Lady Hattâ—…n's Case there was only a Letter sealed up and delivered to the Party L. C. I. You need not trouble your self about that Mr. Solicitor Mr. Sol. Gen. If the Case then be thus I take it it will turn upon this Fact they have given your Lordship no Proof where this Paper was Signed by them here are seven Persons that had a hand in it and here is only one Person whom they have insisted to be infirm and kept his House for a great while together We say the Publishing follows the Libel where-ever it goes the Libel is in the County of Middlesex they have confessed it in the County of Middlesex and they did not distinguish where it was done Then if they will not distinguish upon the Evidence no Man ought to distinguish but ought to presume it was done in that place where they owned it Mr. Attor Gen. I did not apprehend we were got so far that they Opposed us in the Publication Sir Rob. Sawyer Yes we did for you have given no Evidence of it Mr. Attor Gen. Surely my Lord for that we have give a sufficient Evidence and they have given some Proof of it as to my Lord Archbishop that because he had not been from Lambeth therefore he did not publish nor could cause it to be published for your Lordship sees by this Information they are not only to answer the Publicavit but also the Publicari causavit for do you doubt Gentlemen of the Law in this Case that if I compose a Libel in Surrey for Example and send a Person over into Middlesex I am not Guilty of the Publishing Sir Rob. Sawyer That is not your Case Mr. Attorney Mr. Finch That were clear if it were so but it is not so Mr. Attor Gen. My Lord Archbishop's Case signifies nothing if we shew it was published in Middlesex and you give no Evidence to the contrary but it might be there and I am sure as to the rest of my Lords the Bishops there is no Evidence at all given Here is a Petition that we say is a Libel they it may be will make that a Question this is delivered to the King 's own Hand in the County of Middlesex and there are as many Cases as any one Man can name that this amounts to a Publication by the Party for if I send a Letter by the Post sealed that no body can see but the Party himself and he that writ it it is adjudged over and over again it is a Libel Mr. Justice Powel That you need not labour Mr. Attorney for that 's the Case of Williams of Essex but how do you apply it to the Case now before us Mr. Attor Gen. That 's an Answer to their Objection as to the Publication Mr. Justice Powel But what say you to the first part you have not proved that it was written in Middlesex Mr. Attor Gen. There is the Case of Barrow and Lewellin in Hobart and likewise the Case of Sir Baptist Hicks which is reported both in Hobart and in Popham and in Popham towards the end of the Case there is a remarkable Passage Says that Case If it should not be punishable at the Suit of the King there would be no Remedy for the Party cannot bring an Action because he can be no Witness for himself and it is only known betwixt them two but a Witness for the King he may be to prove his own Receipt of the Letter and the Party's Hand Mr. Justice Powel You need not labour that Point I 'll tell you Mr. Attorney for the Law is very clear in that Point I think if you bring it home to your Case Mr. Attor Gen. Then here 's the Case in short my Lord That my Lords the Bishops have caused to be made and written this Petition they are made Parties to it by setting their Names and this is a continued Act whatsoever is written there is my Lord Archbishop's Writing where-ever it goes as I 'll put you a Case that 's very well known If I take away Goods from a Man in the County of Cumberland and I am found with them in the County of Middlesex it is a continued Act and makes all but one Felony and I shall be Tried here in Middlesex for it If a Man write a thing in one County and it is sent and dispersed in another County that still continues to be his Fact though it may be the first part was not in the same County with the other but suppose all this while that part should not affect my Lord of Canterbury the causing it to be Published does Mr. Justice Powel Do you think Mr. Attorney that writing in one County is such a continued Act that he may be said to write it in another County Mr. Attor Gen. Sir I take it where there is a complicated Crime of Writing and Publishing a Libel and the beginning of it is in one County and the carrying it on is in another that is a continued Act and may be Tried in either County L. C. I. It is all one Act of Libelling as they say Mr. Iust. Holloway In Cases of Felony 't is so taking in one County and being found with the Goods in another it is Felony in either County Mr. Iust. Powel But in that Case they are two Felonies for it is Robbery in the one County and but bare Felony in the other Mr. Sol. Gen. Suppose that my Lords the Bishops Signed this Paper in another County and my Lord Archbishop consents to have it sent into Middlesex is not this a causing it to be published in another County Mr. Iust. Powel Yes it may be if you prove his Consent Mr. Sol. Gen. Then suppose further which may very well consiâ—…t with my Lord Archbishop's Evidence of his not being out of Lambeth in so long time the rest of the Bishops might sign it in Middlesex or it may be in that Place and then they carry it by my Lords consent over hither into this County is not this a causing it to be published the Delivery with his Consent certainly is a Proof of that for our Information goes two ways For Making Contriving Writing and Publishing that 's one And then For causing it to be Made Contrived and Published that 's the other And if I prove that he caused it to be published he may be found Guilty as to that part and not Guilty as to the other for the Information is not so intire but that the King has his choice if the Archbishop had
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
in my Case and you were one of them that prosecuted me for ought I know or if you did not prosecute me you preached against me or if you did not some of your Tribe did But so my Lord it was in many other Cases within time of Memory Sir Robert Sawyer has past a Complement upon me of my great Skill in Parliament matters but truly there needs no great Skill in matters where the Law is so plain a Peer they agree may be in Prison for Treason Felony or Breach of the Peace but that Breach of the Peace I say they is where the Law requires Sureties of the Peace but is there any Certainty where Sureties of the Peace shall be required and where not Then I would put this Cafe These Lords have contrived and published a Seditious Libel against the King and His Government and whether this be not such a Breach of the Peace as will require Sureties of the peace is the Question before you And it plainly appears to be so in Sir Baptist Hick's Case in Hobbart If a man write a private Letter provoking another to fight although there be no fighting this is a Breach of the peace now a Letter can do no Wrong in that kind but as it incites and stirs up to fighting which may occasion Blood-shed and I think there cannot be a greater Breach of the peace than for a man to come to the King's Face and publish a Libel against Him and yet according to their Doctrine this man shall go away and you shall not take him up but take a Subpoena against him and wait for the delay of all the ordinary process and they tell you another thing that a Capias does not lie upon an Information against the person of a Peer and that there is no precedent of any such thing but I would pray them to remember the Case of my Lord Lovelace about some three years ago for breaking a Foot-mans Head. It seems if a man libels the King in His own presence that is not so great a matter as a little Correction to an insolent Foot-man but there he was bound in a Recognizance to appear here in this Court and accordingly he did appear and was Charged with an information and as to that precedent I do believe Sir Robert Sawyer and Mr. Finch won't contradict me this was in the first year of this King There was likewise my Lord of Pembrooke's Case who went to a disorderly House and there frighted some people and we moved the Court and had an Attachment against him for a misdemeanour and he was glad to Compound the thing or it had not ended so soon as it did and yet if a Lord comes to the King's Person and affronts Him to his very Face will not an Attachment lie against him for it Certainly it will. My Lord we have gone out of the way too much already and these Gentlemen will lead us farther but we hope your Lordships will reduce us to the methods of the Law Here is an Information which we desire may be read if they have any thing to plead to it their time for that will come after it is read if they think they have been illegally imprison'd it appears plainly upon this Return who they were that did Commit them here are a great many Noble Lords to Answer an Action of false imprisonment if these Lords think fit and may have these Learned Gentlemen that are very well able to advise them what they should do in it Sir Robert Sawyer We pray your Lordships Judgment whether the Cases put by Mr. Sollicitor are like our Case Mr. Soll. Gen. They are as like as Sir Robert Sawyer is to Mr. Attorney that was Sir Robert Sawyer Those Cases are of apparent Breaches of the peace so likewise was my Lord of Devonshire's Case but certainly that was not at all like this Mr. Finch With your Lordships Favour I would add but one Word and I would repeat nothing of what has been said all that I shall say is this There is a great deal of Difference between an Actual Breach of the Peace and that which in the bare Form of an Information is a Breach of the Peace by Construction of Law it being contra pacem Suppose it be laid that a man did vi armis speak Words will that make the Words a Breach of the peace Mr. Soll. Gen. It must be vi armis and certainly is a Breach of the peace Mr. Finch If a man write a Petition are the pen and ink that he uses the Arms Mr. Soll. Gen. My Lord I hope Mr. Finch remembers what I heard him say in Algernoon Sidney's Case scribere est agere Mr. Finch I think it is so Mr. Sollicitor but every Action is not a Breach of the peace Ld. Ch. Iust. We let my Brothers deliver their Opinions I will give you mine Mr. Iust. Allyb. The single Question now is Whether or no that which Mr. Sollicitor was pleased to name as the Crime and lay it to the Charge of my Lords the Bishops that is a seditious Libel be a Breach of the peace I do confess that there is little of Argument to be drawn from Forms of Indictments and I shall put no great stress upon the words vi â—…mit where the Fact will not come near it but if a Commitment may ensue as they seem to agree wherever surety of the peace may be required nothing seems more important to me than that surety of the peace should be required where there is any thing of Sedition in the Case and wherever there is a Seditions Act I cannot tell how to make any other Construction of it but that it is an Actual Breach of the peace that is my Opinion Mr. Iust. Powell I am of the same opinion in this point too as I was in the other point before It was a matter of great consequence I thought upon the former point but now it appears to me to be of far greater consequence than it did at first for here all the Great High and Noble Peers of England are concerned in it as to theâ—… priviledge Our Predecessors in this Court heretofore would not determine the priviledges of the Peers but left them to themselves to make what Judgment they pleased of them I think truly 't is a thing of that weight that it may be very fit for the Court to take time to consider of it and I declare for my own part I will not take upon me to deliver â—…y Opinion in a matter of this Consequence before I have Consulted all the Books that can give me any Light in the Case Mr. Iust. Allybone Brother Powell I am not determining limitting or cramping the priviledge of Peers but I am only considering whether or no a seditious Libel be a breach of the Peace 'T is agreed to be on all hands a breach of the Peace Is there any thing that will require Sureties of the Peace to be
in Parliament and particularly in the Years 1662 and 1672. and the beginning of Your Majesties Reign and is a matter of so great Moment and Consequence to the whole Nation both in Church and State that your Petitioners cannot in Prudence Honour or Conscience so far make themselves Parties to it as the Distribution of it all over the Nation and the solemn Publication of it once and again even in God's House and in the time of his Divine Service must amount to in common and reasonable Construction In contemptum dicti Domini Regis nunc Legum hujus regni Angliae manifestum in malum exemplum omnium aliorum in tali casu delinquentium ac contra pacem dicti Domini Regis nunc Coronam Dignitatem suas c. Unde idem Atornatus dicti Domini Regis nunc generalis pro eodem Domino Rege petit advisamentum Curiae hic in praemissis debitum legis processum versus praefatos Willielmum Archiepiscopum Cantuariensem Willielmum Episcopum Asaphensem Franciscum Episcopum Eliensem Iohannem Episcopum Cicestrensem Thomam Episcopum Bathonensem Wellensem Thomam Episcopum Petriburgensem Ionathanum Episcopum Britollensem fieri ad respondendum dicto Domino Regi de in praemissis c. T. Powys W. Williams Mr. Attor Gen. My Lord we humbly pray that according to the Rules of the Court in such Cases my Lord Archbishop of Canterbury and my Lords the Bishops may Plead to the Information Mr. Solli Gen. My Lords the Bishops are here in Custody in Court upon the highest Commitment that can be in this Kingdom to wit That of the King in Council and we pray that according to the Course of the Court they may Plead to the Information presently L. Ch. Just. What does his Grace and my Lords the Bishops say to it Mr. Serj. Pemberton Will your Lordship give us leave who are of Council for his Grace my Lord of Canterbury and the rest of my Lords the Bishops to speak a word in this Matter L. Ch. Just. Ay Brother go on Mr. Serj. Pemberton That which we have to desire of your Lordship and the Court is this We have now heard this Information Read and 't is plain we could know nothing of this before the Warrant of Commitment being only in general for a Libel and this being a Case of the greatest Consequence peradventure that ever was in Westminster Hall that I think I may boldly say it is a Case of the greatest Consequence that ever was in this Court and it being a matter of this Nature that these Great and Noble Persons my Lords the Bishops are here taxed with that is for making a Seditious Libel contained in such a Petition as though it was a Libel to Petition the King We do beg this of your Lordship that it being of this great Importance to the end we may come prepared to say what we have against it We may have an Imparlance till the next Term. Mr. Finch Pray my Lord favour me with a Word on the same side for my Lords the Bishops You Lordship sees now how necessary the trouble we gave you before in making our Objections against the reading of the Information was and what the drift and aim of the Kings Councel was in the desiring the Information to be read first for now it is read What is it that they desire of your Lordships They desire that my Lord Arch Bishop and my Lords the Bishops being in Custody and brought here in Custody they may be now so Charged with this Information as to Plead presently This my Lord we oppose and with humble Submission we ought to have time to Imparle and a Copy of the Information that we may consider what we have to Plead to it for however we come here into Court whether legally or not legally yet ought we in the one and in the other Case to have time to Consider of our Defence And my Lord till of later time this Practice which the Kings Counsel now calls the Course of the Court was never used nor was any Man required to Plead immediately and my Lord if the Practice of the Court has not been anciently so as I do believe they will scarce shew it to be Ancienter than a few years last past then with humble submission though the Course of the Court have been so for some little time past yet it is not in the power of the Couâ—… as we humbly Conceive to make a Course in prejudice of all the Priviledges that the Kings Subjects are by the Antient Rules of Law intituled to they cannot make a new Law in prejudice of any Right or Priviledge which the Subject hath and call it the Course of the Court Now that this which we desire for my Lords the Bishops is the Right and Priviledge of the Subject is most manifest for there might be many Defences that a Man may have to make to an Accusation of this Nature which it is impossible for him to know at the first hearing of an Information read and yet which would be necessary for him to make use of or at least it would be impossible for him to make use of in such a manner as the Law doth allow of and require It may be the Pleas which he has to Plead may be such as that he has not time to put into form there may be Matters upon the hearing the Information read that it would be necessary for him to give answer to which he knew not of before and therefore may neither have Materials ready nor be capable of putting them if he had them ready into such Form as the Law requires They tell you on the other side that if a Man be brought into Court by Legal Process he may be Charged with any Information whatsoever that they are not tied to the Fact alleadged in the Commitment but finding the Party under a Legal Imprisonment they can exhibit an Information against him for any other Offence Then my Lord would I fain know which way any Man alive can be prepared to make his Just and Legal Defence for he knows not his Accusation for tho' he think it may be for that for which he was Committed yet it may prove otherwise and then he can be no way provided with Materials for his Defence but he must lose all Advantages which the Law gives him for his Defence My Lord if this be the course of latter times yet you will not take that to be such a Law as is binding to all future times and we are sure the King's Counsel cannot shew that this was the Ancient Practice for that was quite otherwise L. C. Iust. Mr. Finch you were not here I suppose when this Question came in debate in this Court lately in the Case of a very great Person 't was urged very earnestly and very learnedly by one that stands by you we upon that Debate asked Sir Samuel Astry what the Course of the
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
better look another way and look towards the Court for there your business lies L. Ch. Iust. Well Mr. Sollicitor What say you Mr. Soll. Gen. My Lord it appears plainly that the King is in possession of this Priviledge and has been so for these dozen Years for so long the Justice of the Kingdom towards all the Subjects hath run in all the instances of it in this Channel and tho' it has been contested as often as Mr. Pollixfen has been of Counsel for the Defendant in such Cases it has always been ruled against him he indeed has made his continual Claims Sir Samuel Astry saies he has raised the Dust and made a Hue and Cry but it has always gone against him And I would ask the rest of you Gentlemen that are of Council for my Lords the Bishops for some or one of you I am sure has been concerned in every Information that has been exhibited in this Court for this nine or ten Years last past I would ask you whether in any Information that you have been concerned in if the Party being brought in by Process insisted to have time and an Imparlance it was ever granted him I know you will not say it ever was why then should there be more done in this Case than has been done in all other Cases this ten Years 'T is not sufficient to make Declarations against the unreasonableness of the Practice for it is but what you have done your selves and insisted upon for Law and all those men that upon Informations have been compelled to plead have had Injury done them or else these Lords will have no Injury by the Court 's taking the same Course It is true my Lords the Bishops are Peers and here are Seven of them and Seven Lords go a great way they make a Committee I think in the House of Peers and a mighty matter is made of it that this is the Case of so many Lords But will you alter the Course of the Court because Seven of my Lords the Bishops are concerned in it and they make a mighty stir about the Reasonableness of the thing How can it be believed that the Law will not give a man time to make his Defence They agree themselves that if it were in the Case of Life and Death they must plead presently and doth not the same Reason hold and may not an Argument be drawn à fortiori in the Case of a Misdemeanour If I am not to have time when I plead for my Life there is less Reason I should have time to answer a Trespass But my Lord 't is not Reason that weighs in the Case 't is the Course of the Court which is the Law of the Court that we are contending for and what is there in the Case that should require so much time for my Lords the Bishops to plead to it It is charged in the Information that these Noble Prelates did make a Libel which was produced by them and published in the Kings presence they can easily tell whether thâ—… have done this or not done it what can they plead but the general Issue They talk of special matter to be pleaded but can they shew any more that they can say than what any poor ordinary Countryman if he were here to plead to an Information could say that is whether he was Guilty or not Guilty These Lords can tell whether it be true that they did publish the Paper laid in the Information and then your Lordship will tell them what will be the Consequences of that Publication in point of Law. We say all this was done at Westminster there the Scene is laid and it is not an Information for an old stale thing done a great while ago but a thing that was done yesterday and a thing notorious enough their contesting with the King about his Declaration of Indulgence And as to what Mr. Finch has said That this is a Novel Invention and a Trick to rob a man of his just Defence sure he forgets who it is that taught us the Trick if it be a Trick we have learnt it from those that trick'd before us and what is it that these Lords do desire they would have an Impaâ—… till Michaelmas Term does or can your Lordship think they ask than which is reasonable to have six Months time to plead not Guilty to an Information for a Libel and when so many men have been denyed it formerly upon the instigation of those very Gentlemen that now press so very hard to have it granted sure they must expect to be denyed it too and all this while these Lords lye under this accusation which is not so trivial a matter as some would make it I believe my Lords the Bishops have a desire to be cleared I suppose it is only their Council that desire to delay it upon what ground I know not I believe they themselves would be glad to remove the imputation which would be best done by a Tryal and the sooner the better If they have a mind to justifie themselves this is the readiest course for it and they may do it presently by Pleading Not Guilty My Lord I know I am in a great Auditory and abundance of your Lordships time has been taken up already I press it therefore for the sake of the King and for the sake of my Lords the Bishops we shall else have all â—…ang in suspence and hang in the Air for six Months longer therefore let the matter be put upon a fair Issue so as it may come to a speedy Determination I am sure is these Lords be innocent to day they will be innocent to morrow and if it were my own case I would desire to have it Tryed as speedily as I could and therefore I pray they may plead immediately Mr. I. Powel Mr. Soll. What do you say to the Difference that was taken between a person that was brought in Custody at the first instance where there is no contempt to the Process of the Court and one that comes in here by Capias upon default of appearing at the Summons Mr. Finch My Lord If I apprehend them aright they give us more than we did ask for Mr. Sollicitor has laid it down as a Rule that if a Man is taken upon a Capias in a Mean Process he shall have no Imparlance Mr. Soll. Gen. No you are greatly mistaken Sir and I pray don't lay down Rules for me Mr. Finch If I am Sir I beg your pardon but this I am sure of if a Venire Fac. goes out which is in the nature of a Subpoena and the party appear to it that being the first time he could come into Court you cannot force him to plead to an Information but he has an Imparlance of Course Mr. I. Powell Methinks it seems very reasonable that this forcing a Man to plead presently should be only a punishment for a Contempt of the Court and pray were my Lords the Bishops in contempt to
the Court when they came here to day Certainly they were not for no man is in contempt but he that being served with Process disobeys that Process and if my Lords the Bishops had been served with a Subpoena and had not appeared then there would have gone out a Capias to bring them in and so they would have come in upon a Contempt and then they would have come within the Rule Mr. Soll. Gen. If you have a mind to it you may ask Sir Samuel Astry again Mr. Att. Gen. If they come in upon Bail they ought to plead presently Mr. I. Allybone Mr. Finch I 'le tell you what sticks with me truly you could not but be aware that this would be required of you for this very thing was in debate last Term and you know what Rules the Officer said was the Course of the Court why did you not therefore come prepared with some Presidents to shew us what the course of the Court is Mr. Att. Gen. Truly my Lord at this rate we shall keep your Lordship here all this Afternoon if these Gentlemen will not be satisfyed with the Rule of the Court and for an Answer to what Mr. Justice Powel says if any Ryotbâ—… committed in the Countrey and the Parties are bound by Recognizance to appear here that is no process of this Court and so consequently there can be no contempt and yet they must Plead presently Mr. I. Powell There is a particular reason for that because they are bound by Recognizance Sir Samuel Astry and others say that if they come in by Recognizance they must plead presently Mr. Soll. Gen. But for the thing it self that the people that hear us may not imagine that this Court puts a hardship upon my Lords the Bishops more than is done in other Cases it is best to keep the same Rule as is in all other Cases for when all is done when Justice goes with an Equal Current without any regard to one person or other then every body is safe and all persons concerned do their duty so in this case here be no Presidents produced wherein it has been otherwise then can no person complain but that things go in this Case as they do in all other Cases perhaps such a Case as to the Fact of it never hapned before but for the Law of it that is plain and the same as in all other Cases for that there may be an Information against my Lords the Bishops as well as other people If they make Libels sure it is no doubt at all and if an Information lies against them for it they are under the same Rules as others are but these Gentlemen talk of being surprized and that this is the first time they have heard of this Information but have we told any news in this Information Was not all that is contained in it notoriously enough known before Was not the Kings first Declaration very well known Was not his second Declaration very well known Was not his Order of Councel for the Reading of the Declaration very well known Is not your own Petition a thing very well known to yourselves and all the world Then these being the particular Facts of which this Information is made up and we only say you did do this Fact and we ask you did you do it or did you not Can there be any great surprize in this My Lord I cannot see any thing that alters this from the common Case but only their being Peers and since this question has been heretofore under contest these Gentlemen have had time enough to have prepared Precedents to differ this from the common Rule if they could but since they cannot we desire they may have the same Rule that is in all other Cases and then to be sure all will go right L. C. I. Sir Samuel Astry pray will you tell us whether ever the Court used to grant an Imparlance where a person comes in in Custody or did you ever know when a person comes in upon a Commitment time was given him to Plead Mr. Ser. Pemberton Have you ever known it disputed and denyed Sir S. Astry My Lord I have known that 't is in the discretion of the Court to grant what time they please L. C. I. Is it the course of the Court to give an Imparlance Sir S. Astry No 't is the favour of the Court and if the Defendants have at any time shewed a reasonable Cause that they have special Matter to plead or any other cause allowed by the Court the Court has sometimes Indulged them so far as to give them time L. C. I. But how is the ordinary course Sir Samuel Astry Mr. I. Allybone Ay for as I said before things done in particular Cases in favour are not Precedents Sir S. Astry I have told your Lordship the Course is this that any person that appears upon a Recognizance or is taken up by your Lordships Warrant or by a Warrant from a Justice of Peace or any other way in Custody or any Officer of the Court that is a Priviledged person and that must appear in propria personâ must plead presently if the Court upon particular Reasons do not give him time and this I received Information of as the practice of the Court from Mr. Waterhouse who had been a Clerk in the Office sixty years Mr. Soll. Gen. He said so before but these Gentlemen will never be contented unless they have a new Law made for them Mr. Pollixfen My Lord I would not unnecessarily trouble your Lordship but truly this is a case of great Concern And first of all I think we shall all agree that what has been used for ten or twelve years past will not make the Course of the Court and next I perceive they do not bring any one Instance for any proceeding of this sort above ten or twelve years old but then say they on the other side Why do not you bring Presidents that it has gone otherwise hretofore My Lord that cannot be done for it is a Negative on our side that this which they desire is not the Course of the Court but then as it is impossible to prove a Negative so the Proofs should come on the other side that this has been done they ought to shew it if there has been any such thing as a standing Rule or else it shall be presumed an Innovation as being contrary to all Reason But My Lord because they put it upon us there is this Proof on our side as much as a Negative can afford In those proceedings that were in the great Case of the Habeas Corpus there was an Information against Elliot and others they had time given them to Plead over and over so that there is one Precedent And as many as these Cases in former times as can be found will show that this was always the Course but pray say they produce us one Instance that ever there was a man that came in upon a
Recognizance that had time to Plead truly My Lord I cannot just now tell whether any such Instance can be produced but I verily believe there may be a great many but I turn it upon them and that with great Reason with Submission to your Lordship Shew me any man if you can above a dozen years ago that had not time allowed him to Plead Ay but say they Mr. Waterhouse an Ancient Clerk of the Crown Office that has been there these sixty years hath certified that this hath been the practice of all his time My Lord we that have been Conversant in the business of this Court did all very well know Mr. Waterhouse when he was here and sat in Court in the place of Sir Samuel Astry Sir S. Astry No Sir It was in Mr. Harcourt's place Mr. Pollixfen Well he executed a place here and 't is no matter whether he were Master of the Office or no but I think we all knew him very well he was a man as lame in his business as could be for there are some men that will never do business well let them be never so long at it and he was as weak in the practice of the Court and every thing else as 't is possible for one that has been bred in an Office can be and at this time he is grown so decreppit and superannuated that you may as well depend upon the Certificate of an old Woman as any thing that he shall say in such a Matter as this he is now almost fourscore years of Age and has lost that little Memory and Understanding he had but if his Certificate must be depended upon because of his standing in the Office pray My Lord let him come hither and do you ask him what he has to say in this Matter Mr. Soll. Gen. Aye that is very well indeed Mr. Pollixfen Good Mr. Sollicitor spare us certainly there needs not such great hast in this Matter we are upon a business of very great Weight and Concernment for you are now making a Law for the whole Kingdom in point of Practice in Cases of this Nature We do say indeed that by the Reason of the Heat and Zeal of these last ten years such a Usage has been introduced but Sir Samuel Astry tells you it was opposed and I hope that neither I nor thâ—… thing will be the worse thought of because I opposed what I thought an unreasonable and new Invention My Lord I know in the Case of the City of London we had time to plead a whole Vacation after an Imparlance and were not at all hurried on as the King's Counsel would do in this Case My Lord if they can produce any Ancient President for it I will say no more but there is no Case in Print in any of our Books that ever I read or can remember that countenances such an Opinion a man by this means may loose his just Defence and he has no Remedy nor will it over be in his Power to retrieve it for he may be brought on a suddain into Court upon a Warrant and when he is here he shall be charged with an Information and presently he must Plead not Guilty because he has not time to prepare a Plea of any other Nature let him have never so much other special Matter or occasion for it if you please to let this Matter be examined what the Presidents are and what Age those Precedents are then perhaps your Lordship will get some satisfaction but otherwise if the bare Certificate of the Master of the Office is to be a Guide to the Court what is Law and what is not we shall be in a very uncertain Condition especially when the Matter comes in the very face of it a great deal of Unreasonableness and Injustice They on the other side will argue that is not more unreasonable then the practice in the Case of Treason and Fellony where Persons are compelled to Plead instantly But under favour My Lord there is no Comparison between this Case and that though I know it was always thought a hardship and defect in our Law that a person should be denied time to plead in case of Life and Death except he can shew some special Matter of Law that he has to Plead and then he has always time allowed him to put it into Form And I could never think there was any Reason to be given for it but because the common Defence of Fellons would be little Shifts and Arts which would destroy proceedings and make them tedious and that would be an Encouragement to People to commit Fellony and beside there is a Trust which the Law reposes in the Court in Capital Cases to take care that these Men should not suffer upon any little Tricks in Law but if you come below Treason and Fellony the Law puts no such hardship upon the Defendant nor reposes such aspecial Trust in the Court but a man may plead any thing he has to plead And can any man plead before he sees what he is â—…o plead to and shall the Law allow him Council to prepare his Plea and not allow him time to consult with that Council about it These are thingâ—… My Lord that truly to me seems unreasonable But as to the Practice and course of the Court I pray your Lordship to give Order that the Precedents may be searched that you may know what the ancient Practice was Mr. Finch Whether you will grant an Impâ—…ance now or no yet I hope however you will think â—…it to give My Lords the Bishops time to plead Lord Chief Iustice. But Mr. Finch we have had a Certificate from Sir Samuel Astry which truly weighs a great deal with me he tells you the Practice has been so ever since he came here and â—…t Mr. Waterhouse â—…old him that it had been so all his time which is sixty years Mr. Pollixfen My Lord there are Persons here that will upon their Oaths declare That Mr. Waterhouse has often told them the Practice was otherwise even in his time and afterwards a long time before this new waâ—… of Proceeding came in Mr. Ince My Lord if I might have liberty to speak I can say Mr. Waterhouse has told me Lord Chief Iustice. Pray be quiet Mr. Ince Mr. Iustice Allybone But pray Mr. Pollixfen give me leave to mind you how the Evidence stands against you the Objections are that this has been a Practice but for twelve years last past if that be true I think it goes a great way for the practice of twelve years is President enough Prima Facie that such is the practice For how shall we come to the knowledge of the practice but from our Officer Sir Samuel Astry who has been here Examined and he tells you that upon his coming into the Office when it could not be so doubtful as now it seems it is he took Instructions from Mr. Waterhouse I allow you 't is but his Certificate but that must
go a great way with the Court. Sir Ro. Sawyer Such a practice as this has been always very rare in Informations for Misdemeanours and they bring you nothing of any President older then Sir Samuel Astry's time Mr. Finch Pray My Lord give me leave to very the Question I do not now make it a Question whether your Lordships should grant My Lords the Bishops an Imparlance but whether you would think fit to look into the Course of the Court before that time that Sir Samuel Astry speakâ—… of and take time to consider and search into Presidents Mr. I. Allybone Do you Mr. Finch give us any one Reason or President that may make us doubt whether this be the Course of the Court or no à And you could not but be aware of this before and therefore should have come prepared to make out your Objection Mr. Finch Mr. Pollixfen and the rest of the Practicers in My Lord Hales's time will tell you that the Course was otherwise in his time Sir Samuel Astry indeed tells you it has been so since his time but this was one of the Points it seems that he was ignorant of which made him inquire of Mr. Waterhouse so doubtful was this Practice Sir Samuel Astry I was an Attender upon this Court before I came into this Office but it was in another place on the other side of the Court and therefore was not concerned so much to know what was the Course on this side till I came into this Office. Mr. Sol. Gen. These Gentlemen differ among themselves one would have an Imparlance the other only time to plead I believe truly they cannot tell well what they would have I pray the Rules of the Court may be kept to Sir Sam. Astry Here are two Clerks that sit by me that have been a long time in the Office Mr. Harcourt my Secondary and the Clerk of the Rules I pray they may be asked their knowledge of this matter Mr. Soll. Gen. Certainly these Gentlemen think they have a Priviledge above all other people that they must not be subject to the same Rules as others are we on our 〈◊〉 have taken all the Methods that we could to make this matter manifest and what is it that these Gentlemen now propose They pray you to take time to consider but have they used the right means of creating a jealousie or suspicion in the Court that the Course is otherwise they can give no instance of it and all they say is 't is a Negative that this is not the Course of the Court but the Imparlance that they beg is in the Affirmative surely that they can find proof of if it be so As for my Lord Holly's Case that is with us and not against us let Mr. Pollixfen shew that ever any one of the Men that were brought into Court in Custody either had time to Plead or an Imparlance L. C. I. Sir Samuel Astry says he has given you his Opinion and here are two other Clerks of the Office that he refers himself to are you willing that they should be asked Mr. Ser. Pemberton Yes my Lord with all our hearts L. C. I. Mr. Harcourt How long have you been a Clerk in the Crown-Office Mr. Harcourt About seventeen or eighteen years my Lord. L. C. I. How long have you known the practice of the Court in this matter and what is it Mr. Harcourt I cannot charge my self so with Particulars from the time of my coming into the Office but for these ten or twelve years past I remember it has been as the King's Council pressed and as Sir Samuel Astry has declared L. C. I. What say you Mr. Sillyard How long have you known the Crown-Office Mr. Sillyard I have been a Clerk here about thirty years L. C. I. Well and how has the practice been all your time Mr. Sillyard I have not sat here as Clerk of the Rules but a little while but since I have sat here I have always observed it to be the Practice that one that comes in Custody should Plead immediately it was a thing heretofore that did not so often happen asit hath done here of late therefore I cannot so well speak to it but it hath fallen out frequently within some years last past and that hath been the constant Course Sir. Samuel Astry When you first came to be Attorney General Sir Robert Sawyer I am sure it was so Mr. Att. Gen. Pray let me ask you Mr. Sillyard you say you have known the Office thirty years When you first came to the Office were Informatitions as frequent as they are now and have been of late Mr. Sol. Gen. It was so in the Case of Mr. Hampden when you were Attorney General Sir Robert Sawyer he was forced to Plead immediately to an Indictment for a Crime that perhaps you will say was near upon Treason Sir Rob. Sawyer Yes truly it wanted but one Witness that was all Mr. Sol. Gen. But yet the Indictment was only for a Misdemeanour and there we strugled and debated the Matter but were forced to give it over because the course of the Court was against us so it has been by the unquestionable Testimony of Sir Samuel Astry for these twelve years last past and in those twelve years we have had many changes perhaps there may have been twelve Chief Justices and they have all affirmed it and if I then make it out that in all these Judges times that are within our Remembrance it has gone thus then there are enough of Precedents in the Matter Sir Rob. Sawyer But my Lord I desire to know whether that were the Ancient Course Mr. Sollicitor Mr. Sol. Gen. They that make the Objection ought to prove it but I will name Sir Robert Sawyer another Case and that is the Case of Sir Samuel Barnardiston which was the Case of a Libel too he was forced to plead immediately and it cost him 10000 l. Fine L. C. I. Well Gentlemen have you done on either side Mr. S. Pemberton If your Lordship will please to give us time till to morrow Morning we will come hither by Rule of Court and bring you some Certificates and Assidavits or else some Precedents that we hope will satisfie your Lordship in this Matter L. C. I. No Brother we cannot do that the Question is what the Course of the Court is we have had an Account of that from Sir Samuel Astry for twelve years of his own Knowledge and from Mr. Waterhouse by him for sixty years but for Mr. Waterhouse they except against him and say he was a person that was always Lazy and did not foâ—…well understand his business and now is superannuated that is said but is but â—…is dictum perhaps it may be so perhaps not and they have offered to Examine Mr. Ince about some Opinion that he has had from this Mr. Waterhouse it may be he may have asked him some Question that may lead to it and he may have given
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
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
may be Read. Mr. Att. Gen. We have given sufficient Evidence sure to have it Read therefore we desire it may be Read. Mr. Serj. Levinz My Lord before this Paper be Read we hope you will let us be heard to it we think that what they desire to have this Paper Read ought not to be for what is all the proof that they have given of this Paper they have a proof by Comparison of Hands which in a Criminal Case ought not to be received and besides my Lord what is that Comparison of Hands that they have offered Some persons come here and say They cannot tell whether it be their Hands they believe it may or it may not for ought they know How shall we Convict any Man upon such a Testimony as this can we have our Remedy against him for Perjury for saying He believes it to be our Hand therefore here is not any Evidence to Charge us For first It is only a Comparison of Hands And secondly That Comparison is proved in such an uncertain manner Some of them tell you They do not know what to believe another tells you I believe 't is rather such a Lord's Hand then the others are such a Lord's Hands I believe 't is rather his Hand than that above it or that below it what sort of proof is all this Therefore we pray it may not be Read till they prove it better Mr. Serj. Pamberton Pray my Lord spare me a word or two in this matter for Evidence sake there is a great deal of reason we should take Exceptions to the Evidence that has been given for truly I think I never heard such a sort of Evidence given before It is a Case of as great Concernment as ever was in Westminster â—…all and for them to come to prove Hands only by those that saw Letters but never saw the persons Write this I hope will not amount to so much as a Comparison of Hands Your Lordship knows that in every petty Cause where it depends upon the Comparison of Hands they use to bring some of the Parties Hand writing which may be Sworn to to be the Parties own Hand and then it is to be compared in Court with what is endeavoured to be proved and upon comparing them together in Court the Jury may look upon it and see if it be right and never was there any such a thing as this admitted in any poor petty Cause that is but of the value of Forty Shillings And therefore as to this Evidence First We say Comparison of Hands ought not to be given at all in the Cases of Criminals And I believe it was never heard of that it should In the next place if it be admitted to be Evidence yet it is not such an Evidence as that by Comparison of Hands the Jury can take notice of it for in such manner of proofs by Comparison of Hands the usage is That the Witness is first asked concerning the Writing he produces Did you see this Writ by the Defendant whose Hand they would prove If he answers yes I did then should the Jury upon Comparison of what the Witness Swears to with the Paper that is to be proved judge whether those Hands be so like as to induce them to believe that the sames person Writ both and not that the Witness should say I had a Letter from such a person and this is like the Hand of that Letter therefore I believe it to be his Hand My Lord I hope this shall never be admitted for Evidence in this Court. L. C. I. I do take it that the Witness himself is Judge of the Comparison for if he does know the Parties Hand and a Paper be offered him to prove the Parties Hand he is to compare it in his own mind Mr. Serj. Pemberton It never was admitted to be so that I know of my Lord or ever Read of Mr. Sol. Gen. You may remember several Cases about that particularly Sidney's Case Mr. Pollixfen Pray my Lord hear me a little as to that it is a Point of very great moment whether in the Case of a Misdemeanour either in an Indictment or Information it be good Evidence to offer Comparison of Hands and that this Court did adjudge quite contrary upon an Indictment of Forgery against my Lady Carr appears in Syderfin's Reports they went to prove her Letters Written by her to Cox the Court rejected it and gave their judgement here That it was no Evidence and that for this Reason Because of the evil consequences of it For said they It is an easie matter for any Man's Hand to be Counterfeited that they sure will agree for frequent daily experience shews how easily that may be done is it not easie then to cut any Man down in the World by proving it is like his Hand and proving that likenss by comparing it with something that he hath formerly seen this strikes mighty deep the honestest Man in the World and the most Innocent may be destroyed and yet no fault to be found in the Jury or in the Judges if the Law were so it would be an unreasonable Law. Next my Lord for the Case of Sidney that was a Case of Treason Now in the Case of Treason there is always other Evidence brought and this Evidence comes in but as a Collateral Evidence to strengthen the other but in this Case it is the single Evidence for ought that appears for there is nothing more for ought I can see in the Case but whether this were their Hands and proved only by what another believes Now shall any be condemned by anothers belief without proof surely my Lord that was never Evidence yet to Convict any one so that their proof failes in both Points For first It ought to be considered whether Comparison of Hands be Evidence in a Case of Misdemeanour And next if it be Evidence whether you will take it that the belief of a Man that brings nothing to compare with it or never saw the Party Write but has received Letters and says This is like it and therefore he believes it to be his Hand be good Evidence as a Comparison of Hands Mr. Serj. Pemberton My Lord they are pleased to mention Mr. Sol. Gen. Mr. Serj. you have been heard already and you are not to reply upon us or if you would we must be heard first Mr. Serj. Pemberton I would only speak to that Case of Sidney my Lord that Case differs from this toto Caelo the Writing was found in his possession in his Study there was the proof that nailed him Mr. Sol. Gen. You shall see how we 'll apply it by and by Mr. Att. Gen. Pray my Lord favour me a word in this matter that there is stronger and weaker Evidence no Man doubts but that which these Gentlemen say that in this Case there is no Evidence must needs be a mistake if they mean that it is not so strong an Evidence as is possible to be given
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
upon all Occasions chopp'd in upon and I do not know how they come to take this Liberty I am sure other people had it not in former times when these Gentlemen stood where we do as soon as ever we offer to speak presently there are two or three upon us L. Ch. Iust. Let me hear them Mr. Attorney make their Objection and let the Record be read and that will answer that Objection Mr. Att. Gen. My Lord as for that other thing they come and tell us we have set forth a Petition we say no such thing in the Information we say you composed a certain Libell pretensâ—… Petitionis in which are contained such and such things and now I pray let it be read Mr. Sol. Gen. Pray my Lord hear me a little first Take the Information as we have laid it and I believe there are twenty Presidents that I could give you in an instant of late days practice so was the Information against Mr. Baxter so was the Information against Mr. Iohnson so was the Information against Doctor Eades and so was the Information against Sir Samuel Barnardiston They are all in this form sic continetur so that as for that matter we are well enough But here 's another thing say they You do not set out the Petition we say it is a Libell and it is not the Name we rely on but there is such a Libell so we in our Information call it if it be not a Libell then are they very innocent and whether it be or no is now in Judgment before your Lordship but if it be as we say then it is not the speaking ill things in the body of a Petition and then giving it a good Title and in concluding it with a good Prayer at the end of it 't is not I say any of these that will sweeten this Crime nor alter nor alleviate it at all if there be that which is Seditious and Libellous in the Body of it call the Paper what you will and smooth it with a Preamble or a Conclusion that will not make it any thing less a Libell these things are plain and manifest We say there is such a thing done a Libell made pretensâ—… Petitionis do you call it what you will but we say these and these things are a Libell upon the King and the Government We have proved our Case we have proved there was such a Paper under their Hands we have proved it was owned in Middlesex and then we are in your Judgment whether this be not Evidence sufficient to convict the Defendents L. Ch. Iust. But they do make an Objection about the Writing and Contriving of it that it is not proved to be in Middlesex Mr. Serj. Trinder My Lord our Information does not go with a continued Clause that they framed a Libell ut sequitur in haec verba but we only say they made a Libell pretensu Petitionis and then we say In quo quidem Libello continetur so and so we do not tie our selves up to a particular Recital of all that 's in the Paper L. Ch. Iust. Read the Record Clerk Reads Ipsi iidem Willielmus Archiepiscopus Cantuariensis and the rest dicta decimo octavo die Maii Anno Regni dicti Domini Regis nunc quarto supradicto vi armis c. apud Westmonasterium praedictum in Comitatu Middlesexiae praedicto ilioite malitiose seditiose scandalose quoddam falsum fictum pernitiosum seditiosum Libellum in scriptis de eodem Domino Rege Regall Declaratione Ordine predictis pretensu Petitionis fabricaverunt composuerunt scripserunt fabricari componi scribi causaverunt eundem fâ—…lfum fictum malitiosum pernitiosum seditiosum Libellum per ipsos praedictos Willielmum Archiepiscopum Cantuariensem and the rest manibus suis propriis respective subscriptum die anno loco ultimo mentionatis in proesentia dicti Domini Regis nunc vi armis c. publicaverunt publicari causaverunt In quo quidem falso ficto malitioso pernitioso seditioso Libello continetur The humble Petition of c. Mr. Serj. Levinz It is quite another thing that which is produced from that which is in the Information by this leaving out a part for here is the Prayer omitted and the Direction Mr. Sol. Gen. Then my Lord I think there is nothing in the Case but this mighty Objection of the County and says Mr. Serj. Levinz if my Country-man Confesses in this County that he stole a Horse in Yorkshire you shall not try him in London but in Yorkshire because by his own Confession the Fact is in another County Mr. Serj. Levinz I did not put the Case so Mr. Sol. Gen. But take the Fact of the Case as it is here my Lord the Bishops come in Middlesex and own this Paper my Lord Archbishop owns it to be his Writing and the rest of the Bishops own their Hands if they had done as Mr. Serjeant's Yorkshire-man did and said we own we did this but it was in the County of York then it would have been like the Case that these Gentlemen put but here we are in a plain Case of another nature my Lord Archbishop comes here in Middlesex and owns that he writ the Paper the other Bishops they signed it now it does lie certainly in their knowledge where this was done and they should have declared then but they have owned it as their Paper and the signing and writing of it which is enough for us Mr. Finch I own this to be my Paper therefore I writ it in the County of Middlesex Is that a Consequence I am very glad they are no better at their Inferences Mr. Sol. Gen. They have owned the thing in Middlesex that we insist upon and they have not owned it with any qualification if they had said it was done in another County then you must have taken it to be as they said it then if they do not distinguish the place of the Fact your Lordship can only take it to be where they owned it it would be supposed to be done in that place for when they owned the Fact it will be supposed if they do not say where it was done that it was done where they owned it because the King cannot tell where it was done but the Evidence comes out of their own mouths they may give satisfaction where it was done for they know it and till that be done the Supposition is against them that it was done in the place where they owned it and that is a plain Case wheresoever a man is to speak of his own Fact. Indeed if I publish the Writing of another person which is Libellous then there must be a particular proof of the place because it is flot my own Fact but if those Lords publish a Libell that they make themselves it is in their own knowledge and in their own power to tell where it was done because it is their
own Act and Dead It is true if my Lords had published a Paper that was contrived by some of their Council it had been some Excuse and they must have only suffered for that Publication in the place where it was done but they are here for Writing this they have owned in this County and therefore iâ—…â—…es upon them to prove it done elsewhere There is another Objection my Lord made That here is no Evidence of a Publicationâ—… my Lord I take it to be a Publication in it self Is it possible for a man to write a Libell to set his Name and part with it and it coming to the hands of the King that this is not a Publication It is not their saying we did not publish it that will excuse them for can there be a greater Publication in it self than this when men have set their Hands to it and owned their Names what makes the Fact in this Case If a Deed he denied to be factum of such a one what is the proof of it but setting the Hand and Seal and the Delivery There is owning the Paper and setting their Hands is a Publication in it self and therefore they cannot make any such Objection My Lord if there were occasion we have Authorities enough to this purpose and we will give them scope enough if they will argue this matter and if they have any Evidence we desire to hear what they can say to it Mr. Att. Gen. As for this matter of Fact my Lord if I take it right they do not Controvert the Publishing but say they pray make it out where it was written or composed I confess this would be a business worth the while for all persons that act in this manner and are concerned in making of Libels to understand for their advantage no man doubts in the matter of Treason but it is local then put the Case a man is found in Middlesex with a treasonable Paper in his Pocket I do not make a Comparison as if this was such a Paper I hope I am not so understood but I only put it as a Case and that the Law is so is beyond all Controversie then the man is indicted here in Midds for framing and composing such a Treasonable Libell and he comes to be tryed and says he Pray prove where I made and composed it for though you found it in my Pocket in the County of Midds yet I might doe it in the County of York upon my word this had been a very good Defence for Mr. Sidney who was indicted convicted and attainted for making a Treasonable Paper which was found in his Study might not he have put the same Objection might not Mr. Sidney have said it was great pity he did not understand it pray prove where I did it for I did it elsewhere than in this County Mr. Sol. Gen. He did say it I remember Mr. Att. Gen. Truly my Lord I would not hear any Answer given to this for it would make the King in a very woful Case Here is a Paper that is found in the County of Midds and this is there owned by you to be written and subscribed by you pray do you prove it that it was written elsewhere Mr. Serj. Pemb. My Lord we will doe it we will be governed by Mr. Attorney for once Mr. Serj. Levinz We will prove that my Lord Archbishop was not in Middlesex in seven Months before and truly I think Mr. Attorney's Case of a Paper found about a man or in his Custody will not come up to our Case for was this Paper found about us surely that is not pretended Mr. Serj. Pemb. Your Lordship sees by the very frame of the Petition that this Petition which they call a Libell was made after the King's Order concerning reading this Declaration Now we shall prove that my Lord Archbishop whose hand-writing they prove this to be was not out from Lambeth-House in two Months before nor till he was before the Council Sr. Rob. Sawyer Which was long after that time when it was made Mr. Serj. Pemb. So that this cannot be written in the County of Middlesex Call Francis Nicholls Mr. Nicholls was sworn Sir R. Sawyer Do you remember the 18th of May last Mr. Nicholls Yes Sir. Sir. R. Sawyer Pray how was it with my Lord Archbishop of Canterbury at that time and before that did he go abroad Mr. Nicholls My Lord I am very sure that my Lord his Grace of Cant. whom I have served in his Bed Chamber this seven years never stirred out of the Gate of Lambeth House since Michaelmas last Sir R. Sawyer Till when Mr. Nicholls Mr. Nicholls Not till the time he was summoned before the Councill Mr. Serj. Pemb. Now I hope we have given them a full proof that it could not be in Middles Call Thomas Smith Mr. Smith was not examined Mr. Finch Truly my Lord I think that what we have proved or what Proof we further offer of my Lord of Canterburies not being in Middlesex for so long a time is ex abundanti and we need it not for with humble submission in point of Law it is incumbent upon them that are to prove the Charge in the Information to prove where it was done because the Locality of it is part of the thing they ought to prove it in it's nature it is local there is a Place assigned in the Informâ—…ion and unless they prove it was done in the Place that they have laid they have not proved the Charge in the Information Now my Lord they have not made any Proof of that and for proof of Publication I think they have offered none to your Lordship they never did call it so yet and truly I never did hear or know that the owning of their Hands at the Council-Table was a Publication of a Libel it is owning the Writing but it is not an owning where the Writing was made but where it was written and where it was made is of necessity to be proved before the Charge upon a Record in a Court of Justice can be said to be made out it is a Local Charge and in Justice the locality must be proved or the Information fails my Lord they have offered no Proof to it and they have not yet gone to the second part of the Information for as to the Publication of it there is not a tittle of Proof offered but only the owning of their Hands upon their Examination at the Council and no Man did ever yet think that the answering a Question and owning a Paper at the Council-Table upon a Question put by the King himself was a Publication of a Libel Mr. Serjeant Baldock Pray my Lord hear me a Word to that Though the thing be never so local yet there must be some place where a thing that was done was done Then if nothing else appears but what was done in Westminster in the County of Middlesex unless they shew the contrary that must be the very
not signed it or written it but had caused it to be published he may be found guilty of so much But if he be Guilty of any one of these things it is enough and if he be Guilty of none of the other things laid in the Information yet if he be Guilty of causing it to be published by his consenting that the rest of the Bishops should do it that will be enough to maintain this Information Then my Lord is there any Evidence brought against what we have proved That he did not consent Mr. Just. Powel But where was this Consent of his given Mr. Solicitor Mr. Sol. Gen. Pray good Sir give me your Favour I think I am in a plain Case Mr. Serj. Pemberton So you are truly Mr. Sol. Gen. Why good Sir you ought to make out the Locality if you 'l take advantage of it Mr. Serj. Pemberton That 's very well indeed this is the first time I ever heard that Doctrine Mr. Sol. Gen. I cannot help that but certainly the Law is plain we have proved there was such a Fact as this done and they do not go about to prove that it was done elswhere than where we have laid it for if they did their Witnesses would be cross-examined by us and then we know what would become of them then the Truth of the matter would come out Therefore I would make all this constare The Archbishop might be at Lambeth and yet Guilty in Middlesex by his Concurrence with what was done in Middlesex And I say my Lord this is natural upon the Evidence that has been given because when they were interrogated at the Council and confessed the Paper to be theirs they made no such Explanation of their Confession of which they can make any Advantage in their Defence Here has been no Body produced that proves any thing to be done out of Middlesex so that still if he 's Guilty of the Fact proved he must be Guilty in Middlesex Serjeant Baldock And it does not appear in this Case but that my Lord Archbishop might write the same thing in Middlesex tho' he was at Lambeth so long as the Witness speaks of Mr. Just. Powel How do you make out that Brother Serj. Baldock He might do it when he câ—…me over to the Council Sir Rob. Sawyer He must do it after it was presented Serj. Baldock Might he not be so long here on this side the Water as to make such a short thing as this before it was delivered half a quarter of an Hour would have done it L. Ch. Iust. That 's a thing not to be presumed Brother especially since he is proved not to have been in Middlesex for so long together Sir Rob. Sawyer Mr. Serjeant is mightily mistaken for it is not pretended That it was delivered at the time when the Archbishop and my Lords the Bishops were before the Council Mr. Recorder Either the Making and Contriving or the Publishing of this Libel will do upon this Information for they shall be taken to be one continued complicated Act and then the Party may be tryed in either of the Counties as the King will as in the case of Treason it has been over and over again adjudged That if a Man does one Act of Treason in one County and afterwards goes into another County and does another Act of Treason the Jury of either of the Counties may enquire of the Fact done in the other If they then should take those two as several Acts they were several Offences and they may be found Guilty of the one and acquitted of the other but if they are taken as one continued Act they are but one Offence and the Jury of either County may try it If then in this Case the Jury of this County may take notice of the Publication which was here as certainly they may if they will agree as the Law certainly is That the Writing of a Letter will be a sufficient Publication if the matter be Libellous And there are multitudes of Precedents for that and that the bare setting of a Man's Hand has been adjudged to be a Publication Then give me leave my Lord to bring it to a similar Case Suppose a Man write a scandalous Letter from London to a Judge or Magistrate in Exeter and sends it by the Post and the Letter is received from the Post at Exeter and there opened would any Man make a Question whether the Gentleman that sent the Letter may not be indicted and prosecuted for a Libel at Exeter where the Libel was received Mr. Just. Powel There 's no question of that Mr. Recorder that comes not home to the Fact in our Case undoubtedly in the Case that you put the Law is as you said but it is far different from this Case L. Ch. Iust. There 's no Body opposes the Publication but the framing of it where it was made Mr. Recorder Supposing then the Party were at Exeter and he were interrogated before the Magistrate Whether that were his Hand or no and he should own it to be his Hand can any body doubt whether his owning that to be his Hand would be a sufficient Evidence to prove a Publication Mr. Just. Powel But is that any Evidence where it was written Or if it be not proved that it was received at Exeter would that be a Proof of a Publication at Exeter L. Ch. Iust. They do not deny the Publication Sir Rob. Sawyer We do deny that there was any Publication and they have proved no place where it was made Mr. Sol. Gen. My Lord we are not for turning my Lords the Bishops out of the way of Proof that is usual in such Cases let them take it if they will That this was contrived and made in Surrey But can they publish it in Middlesex without committing an Offence and that is it we stand upon We are not for laying a greater Load upon my Lords the Bishops than our Proof will answer Sir Rob. Sawyer We thank you for your Complement Mr. Solicitor Mr. Sol. Gen. Is this a fare way of interrupting us when we are speaking Durst any one have served you so when you were in the Kings Service We would make our Duty as easie as we can to my Lords the Bishops and it may be easier than other Men would have made it But my Lord let it be a doubtful case that we cannot tell which County it was made and contrived in if it were made and contrived in another County yet when they brought it into Middlesex there was a Publication in Middlesex and if my Lord of Canterbury consented to it and if he caused it to be published how can any Body ever get him off from that causing of it to be published Here is a Paper that must be supposed to be my Lord Archbishops Paper Now either the World must look upon it to be an Imposture put upon my Lords the Bishops or a real Paper made by them If it were an Imposture
day L. President Yes they were Mr. Soll. Gen. Was this before they appeared in Council L. President Yes it was several days before Mr. Soll. Gen. Then I think now my Lord the matter is very plain Mr. Iust. Allibone Did they acquaint your Lordship that their business was to deliver a Petition to the King. L. President Yes they did Mr. Soll. Gen. And they would have had my Lord read it he says Mr. Attorn Gen. And this was the same day that they did go in to the King. L. President The very same day and I think the same hour for it could not be much longer L. Ch. Iust. Now it is upon you truly it will be presumed to be the same unless that you prove that you delivered another Pray my Lord did you look into the Petition L. President No I refused it I thought it did not concern me Mr. Iust. Powel Did you see them deliver it to the King my Lord L. President I was not in the Room when it was delivered Mr. Iust. Powel They did open their Petition to your Lordship did they L. President They offered me to read it but I did refuse L. Ch. Iust. Will you ask my Lord President any Question you that are for the Defendants Sir Rob. Sawyer No my Lord. Mr. Sol. Gen. Then my Lord we must beg one thing for the sake of the Jury if your Lordship can turn your self a little this way and deliver the Evidence you have given over again that they may hear it L. President My Lord I will repeat it as near as I can I think I shall not vary the Sense The Bishops of St. Asaph and Chichester came to my Office I do not know just the day when but it was to let me know that they came in the Name of the Archbishop and four other of their Brethren Is it necessary I should name them L. Ch. Iust. Do it my Lord if you can L. President They were the Bishops of Ely Bath and Wells Bristol and Peterborough they came to let me know in the Name of the Arch-bishop those four and themselves that they had a Petition to deliver to the King if he would give them leave and desired to know of me which was the best way to do it I told them I would know the King's Pleasure and bring them word again they offered me their Petition to read but I did not think it fit for me to do it and therefore I refused and would not read it but I went immediately to the King and acquainted his Majesty with it and he commanded me to let them know they might come when they would which I immediately did they said they would go and speak with some of their Brethren that were not far off in the mean time I gave order that they should be admitted when they came and they did in a little time return and went first into the Bed-Chamber and then into the Room where the King was Mr. Sol. Gen. And this was before they came and appeared at the Council L. President Yes it was Mr. Pollixfen Your Lordship did not read any thing of the Petition L. President No Sir I did not I refused it Mr. Pollixfen Nor does your Lordship know what Petition they did deliver to the King. L. President I did not know any thing of it from them then L. Ch. Iust. Now you may make your Observations upon this two hours hen now we shall hear what Mr. Finch had â—…her to offer I suppose Then my Lord President went 〈◊〉 Mr. Sol. Gen. I think now it is very plain L. Ch. Iust. Truly I 〈◊〉 〈◊〉 tell you there was a great presumption before but there is a greater now and I think I shall leave it with some effect to the Jury I cannot see but that here is enough to put the Proof upon you they came to the Lord President and asked him how they might deliver a Petition to the King he told them he would go and see what the King said to it they would have had him read their Petition but he refused it he comes and tells them the King said they might come when they would then those two that came to my Lord President went and gathered up the other four the Arch-bishop indeed was not there but they six came and my Lord President gave Direction they should be let in and they did go into the Room where the King was now this with the King 's producing the Paper and their owning it at the Council iâ—… such a Proof to me as I think will be Evidence to the Jury of the Publication Mr. Pollixfen Then my Lord thus far they only can go the Arch-bishop was not there and so there is no Evidence against him Mr. Sol. Gen. As to the Writing we have given Proof against him for it is all his Hand Mr. Pollixfen That still is in another County and there is nothing proved to be done by my Lord Arch-Bishop in Middlesex and next for the other six Lords my Lord President does not say that this is the Petition that they said they had to deliver to the King nor did he see them deliver any thing to the King but that is left still doubtful and under your Judgment so that it stands upon Presumption not upon Proof that this is the same and left under Consideration Mr. Attor Gen. Then we will leave it fairly to the Jury upon this Fact. Mr. Pollixfen If so then we desire to be heard in our Defence Sir Rob. Sawyer May it please your Lordship and you Gentlemen of the Jury you have heard this Charge which Mr. Attorny has been pleased to make against my Lords the Bishops and that is this That they did conspire to diminish the Royal Authority and Regal Prerogative Power and Government of the King and to avoid the Order of Council and in prosecution of this they did falsely maliciously and seditiously make a Libel against the King under pretence of a Petition and did publish the same in the King's presence This Gentlemen is a very heinous and heavy Charge but you see how short their Evidence is The Evidence they bring forth is only that my Lords the Bishops presented the Paper to the King in the most private and humble manner they could that which they have been so many hours a proving and which they cry up to be as strong an Evidence as ever was given proves it to be the farthest from Sedition in the doing of it that can be and you see what it is it is a Petition to be relieved against an Order of Council which they conceive they were aggrieved by they indeed do not deal fairly with the Court nor with us in that they do not set it forth that it was a Petition L. Ch. Iust. That was over-ruled before Sir Rob. Sawyer I do not insist upon it now so much an Exception to the Information as I do to the Evidence they set this forth to be
considered the nature of your Majesty's Declaration from Bredah and are humbly of opinion That your Majesty ought not to be pressed any further Because it is not a Promise in it self but only a Gracious Declaration of your Majesty's Intentions to do what in you lay and what a Parliament should advise your Majesty to do and no such Advice was ever given or thought fit to be offered nor could it be otherwise understood because there were Laws of Uniformity then in being which could not be dispenced with but by Act of Parliament Sir Rob. Sawyer This is all that we read this for your Lordship and the Jury see what is here declared by the Parliament That the Act of Uniformity could not be dispensed with without an Act of Parliament Next My Lord we shall shew you what was done in the Year 1672. Read the King's Speech the 5th of February 1672. The Journals of the Lords House were delivered in Clerk reads Die Mercurii 5. Febr. 1672. My Lords and Gentlemen I am glad to see you here this day I would have called you sooner together but that I was willing to ease you and the Country till there were an absolute necessity Since you were last here I have been forced to a most important necessary and expensive War and I make no doubt but you will give me suitable and effectual assistance to go through with it I refer you to my Declaration for the causes and indeed the necessity of this War and shall now only tell you That I might have digested the Indignities to my own Person rather than have brought it to this Extremity if the Interest as well as the Honour of the whole Kingdom had not been at stake and if I had omitted this Conjuncture perhaps I had not again ever met with the like advantage You will find that the last Supply that you gave me did not answer Expectation for the ends you gave it the payment of my Debts therefore I must in the next place recommend them again to your special Care. Some few days before I declared the War I put forth my Declaration for Indulgence to Dissenters and have hitherto found a good effect of it by securing my peace at home when I had war abroad There is one part in it that has been subject to Misconstructions which is that concerning the Papists as if more liberty was granted to them than to other Recusants when 't is plain there is less for the others have publick Places allowed them and I never intended that they should have any but only have the freedom of their Religion in their own Houses without any concourse of others and I could not grant them less than this when I had extended so much more Grace to others most of them having been loyal and in the service of me and the King my Father And in the whole course of this Indulgence I do not intend that it shall any way prejudice the Church but I will support its Rights and It in its full power Having said this I shall take it very ill to receive contradiction in what I have done and I will deal plainly with you I am resolved to stick to my Declaration There is one Jealousie more which is maliciously spread abroad and yet so weak and frivolous that I once thought it not of moment enough to mention but it may have gotten some ground with some well-minded people and that is That the Forces which I have raised in this War were designed to controul Law and Property I wish I had had more Forces the last Sommer the want of them then convinces me I must raise more against this next Spring and I do not doubt but you will consider the charge of them in your Supplies I will conclude with this assurance to you That I will preserve the true Reformed Protestant Religion and the Church as it is now Established in this Kingdom and that no Mans Property or Liberty shall ever be invaded I leave the rest to the Chancellor Mr. S. Pomb Now go to the Journal of the Commons of the 14th of February 1672. The Journal put in Clerk Reads Veneris xiiij die Februarii 1672. Mr. Powle Reports from the Committee appointed to prepare and draw up a Petition and Address to his Majesty The said Petition and Address which he read in his place and afterwards delivered the same in at the Clerks Table and the same being again twice read is as followeth viz. Most Gracious Sovereign We your Majesties most Loyal and Faithful Subjects the Commons Assembled in Parliament do in the first place as in all Duty bound return your Majesty our most humble and hearty Thanks for the many Gracious Promises and Assurances which your Majesty has several times during this Present Parliament given to us That your Majesty would Secure and Maintain unto us the true Reformed Protestant Religion our Liberties and Properties which most gracious Assurances your Majesty out of your great Goodness has been pleased to renew unto us more particularly at the Opening of this present Session of Parliament And further we crave leave humbly to represent That we have with all Duty and Expedition taken into our Consideration the several parts of your Majesties last Speech to us and withal the Declaration therein mentioned for Indulgence to Dissenters dated the 15th of March last And we find our selves bound in Duty to inform your Majesty That Penal Statutes in Matters Ecclesiastical cannot be Suspended but by Act of Parliament We therefore the Knights Cittizens and Burgesses of your Majesties House of Commons do most humbly beseech your Majesty That the said Laws may have their free Course until it shall be otherwise provided for by Act of Parliament And that your Majesty would graciously be pleased to give such Directions herein that no Apprehensions or Jealousies may remain in the Hearts of your Majesties good and faithful Subjects Resolved c. That this House doth agree with the Committee in the Petition and Address by them drawn up to be presented to his Majesty Sir Rob. Sawyer Now turn to the 24th of February 1672. in the same Book Clerk Reads Lunae 24th of February 1672. Mr. Secretary Coventry Reports and Presents in Writing from his Majesty his Answer to the humble Petition and Address of this House which was thrice read and the Matter debated and is as followeth viz. CHARLES R. HIS Majesty hath received an Address from you and he hath seriously considered of it and returns you this Answer That he is very much troubled that that Declaration which he put out for ends so necessary for the quiet of his Kingdom and especially in that Conjuncture should have proved the Cause of disquiet in his House of Commons and give occasion to the questioning of his Power in Ecclesiasticks which he finds not done in the Reigns of any of his Ancestors He is sure he never had thoughts of using it otherwise than as it hath been
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
giving Reasons for the Disobedience in a Libellous Petition and I am going on to that The Declaration is said in the Petition to be Illegal which is a Charge upon the King That he has done an Illegal Act. They say they cannot in Honor Conscience or Prudence do it which is a Reflection upon the Prudence Justice and Honour of the King in Commanding them to do such a thing And this appearing to have been delivered to the King by my Lords the Bishops Persons to whom certainly we all owe a Deference as our Spiritual Masters to believe what things they say as most likely to be true and therefore it having an Universal Influence upon all the People I shall leave it here to your Lordship and the Jury whether they ought not to Answer for it Mr. Recorder Will your Lordship please to spare me one Word L. Ch. Iust. I hope we shall have done by and by Mr. Recorder If your Lordship don't think fit I can sit down L. Ch. Iust. No no go on Sir Barth Shore you 'll say I have spoiled a good Speech Mr. Recorder I have no good one to make my Lord I have but a very few Words to say L. Ch. Iust. Well go on Sir. Mr. Recorder That which I would urge my Lord is only this I think my Lord we have Proved one Information and that they have made no Answer to it for the Answer they have made is but Argumentative and taken either from the Persons of the Defendants as Peers or from the Form of its being a Petition As Peers it is said they have a Right to Petition to and Advise the King but that is no Excuse at all for if it contains Matter Reproachful or Scandalous it is a Libel in Them as well as in any other Subject and they have no more Right to Libel the King than His Majesties other Subjects have nor will the Priviledge of their Peerage exempt them from being Punished And for the Form of this Paper as being a Petition there is no more Excuse in that neither For every Man has as much Right to Publish a Book or Pamphlet as they had to Present their Petition And as it would be Punishable in that Man to Write a Scandalous Book so it would be Punishable in them to make a Scandalous and a Libellous Petition And the Author of Iulian the Apostate because he was a Clergy Man and a Learned Man too had as much Right to Publish his Book as my Lords the Bishops had to Deliver this Libel to the King. And if the City of London were so severely Punished as to lose their Charter for Petitioning for the Sitting of a Parliament in which there were Reflecting Words but more Soft Mr. Iust. Holloway Pray good Mr. Recorder don't compair the Writing of a Book to the Making of a Petition for it 's the Birth-right of the Subject to Petition Mr. Recorder My Lord it was as Lawful for the City of London to Petition for the Sitting of a Parliament as it was for my Lords the Bishops to give Reasons for their Disobedience to the King's Command And if the Matter of the City of Londons Petition was reckoned to be Libellous in saying that what the King had done in Dissolving the Parliament was an Obstruction of Justice what other Construction can be made of my Lords the Bishops saying that the King's Declaration is Illegal And if the Matter of this Petition be of the same Nature with that of the City of London your Lordship can make no other Judgment of it but that it ought to have the same Condemnation Mr. Iust. Powel Mr. Recorder you will as soon bring the Two Poles together as make this Petition to agree with Iohnson's Book they are no more alike than the most different things you can name Mr. Serj. Trinder My Lord I have but one Word L. Ch. Iust. How unreasonable is this now that we must have so many Speeches at this time of Day But we must hear it go on Brother Mr. Serj. Trinder My Lord if your Lordship pleases That which they seem most to insist upon on the other side and which has not been much spoken to on our side is That this Power which His Majesty has Exerted in setting forth His Declaration was Illegal and their Arguments were Hypothetical If it were Illegal they had not Offended and they offered at some Arguments to prove it Illegal But as to that my Lord we need not go much further than a Case that is very well known here which I crave leave to mention only because the Jury perhaps have not heard of it and that was the Case of Sir Edward Hales where after a long Debate it was Resolved That the King had a Power to Dispense with Penal Laws But my Lord if I should go higher into our Books of Law that which they seem to make so strange of might easily be made appear to have been a frequent and constant practice L. Ch. Iust. That is quite out of the Case Brother Mr. Serj. Trinder I beg your Lorships Favour for a Word or two if your Lordship please to Consider the Power the King has as Supreme Ordinary we say he has a Power to Dispense with these Statutes as he is King and to give Ease to his Subjects as Supreme Ordinary of the whole Kingdom and as having Supreme Ecclesiastical Authority throughout the Kingdom There might be abundance of Cases cited for this if there were need the Statute of primo Eliz. doubtless is in Force at this time and a great many of the Statutes that have been made since that time have express Savings of the King's Supremacy so that the King's Power is Unquestionable And if they have come and Questioned this Power in this manner by referring themselves to the Declarations in Parliament they have done that which of late Days has been always look'd upon as an Ill thing as if the King's Authority was under the Suffrages of a Parliament But when they come to make out their Parliament Declarations there was never a one unless it be first in Richard the Seconds time that can properly be called a Parliament Declaration so that that of the several Parliaments is a Matter perfectly mistaken and if they have mistaken it it is in the Nature of false News which is a Crime for which the Law will Punish them More things might be added but I consider your Lordship has had a great deal of Patience already and much time has been spent and therefore I shall conclude begging your Lordships Pardon for what I have said L. Ch. Iust. I do assure you if it had not been a Case of great Concern I would not have heard you so long It is a Case of very great Concern to the King and the Government on the one side and to my Lords the Bishops on the other and I have taken all the Care I can to observe what has been said on both sides 'T
of the Letter and that was not the ground of the Judgment given against him there that it was the Publication of a Libel but the very Fact was a particular offence for said the Court there if you will send a Letter to a private Man and that is a Letter that will provoke him to break the Peace that is an Offence punishable in the Star-Chamber but that is not the Reason which was alledged because no Action will lie for want of Proof but quite the contrary because they may produce the Porter or Party that brought it and prove it that it came from this man's hands and I do not question but that in the King's Bench at this day if a man will write a Letter privately to provoke another man to fight there will lie an Information but not for a Libel for there it will be necessary for to make it an Offence that there be a Publication for that is the very form of the Crime and upon that ground were all those Judgments against Libels in the Star-Chamber My Lord I agree to write a Letter to the King of another Person or to make a Petition to the King concerning another Person as of my Lord Chancellor or the Judges or the like to complain to the King of them scandalously with provoking and reviling Language that is a Publication and so if I write a Letter to one man of another if there be Scandal in a Letter that is a Pubâ—…cation of a Libel and that is the difference that has been always taken where it is essential to make it a Libel that there be a Publication such a Publication must be proved and the delivery of a Letter to a man that concerns himself is no Publication but in this case they have not so much as proved that it was delivered to the King. Mr. Serj. Pemberton My Lord with your Lordship's leave I take it that they have given no manner of Evidence of a Publication to say the writing and subscribing of their Names to a Paper is a Publication of that Paper is such a Doctrine truly as I never heard before supposing this Paper had lain in my Study subscribed by me but never went further would this have been a Publication They never said any such thing As to Algernoon Sidney's Case there was no colour for it that it should be a Publication but it was an Overt Act of Treason to compose such a Book They have proved by our Confession here that we have subscribed this Paper they would take it now that therefore it must be presumed we sent this to the King and so surmise us into an Information for making and publishing a Libel which we sent to the King but they do not prove it at all My Lord there are a thousand ways that it might come into Middlesex and perhaps come to the King's Hands too without our knowledge of Delivery and sure you will not presume these Noble Persons without Evidence to be guilty of such an Offence as this is suggested to be so that My Lord and Gentlemen of the Jury 't is impossible for you to find this a Publication in Middlesex and for the other thing the writing this Paper they that would make it an Offence must prove where it was done Mr. Ser. Levinz My Lord The Answer that I shall give to what has been said on the other side is very short the Cases that have been cited are all Law but not one tittle to this purpose In Sir Baptist Hicks's Case and Williams's Case it was proved they all sent them to the Places whither they were directed but is there a tittle of Proof that these Bishops sent it here In all those Cases they must send it either by a Porter or a Carrier and they send it as their own Act and when it comes there by their sending that is sufficient Proof of their Act in the place whither it is sent And for Sidney's Case there was Treason in the very Libel and Book that he made and he was not indicted for Publishing but for Treason in the place where it was found because it was found in his possession But was this ever in my Lord Archbishops possession in Middlesex or the rest of the Bishops and were they publishing of it if it had then it had been their Act clearly But that is the thing wherein they are defective that they do not prove that my Lords the Bishops sent or brought it here but upon the Question asked them by the King they acknowledged it to be their Hands So that my Lord there is no proof of any Fact done here but an Acknowledgment of a Fact done no Body knows where upon the King's Question here in Middlesex Is that any Proof of this Information Mr. Finch Pray my Lord spare me a Word on the same side let us see what the Evidence is The Evidence is this That the King brought the Paper to the Council-Table and the Bishops owned their Hands to it This is the Effect of the Evidence and all that is to prove the Forming and Making a Libel in Middlesex and the Publication of that Libel And what is therefore inferred from thence why having proved that the King brought the Paper to the Council-Table and the Bishops owned their Hands Therefore first the Bishops made this Libel in Middlesex Secondly they brought it to the Council-Table and published it at the Council-Table or else there is no proof at all For here is nothing of Evidence given of any Fact but because they acknowledged it therefore they made it therefore they gave it to the King in Middlesex This were good Evidence if they had had the Help of a Supposition to make it good but they want that nor must any such thing be admitted but I think they are such gross false Consequences that I doubt not you 'l be of Opinion Here 's no proof of a Publication in Middlesex and then there is no proof at all against my Lords the Bishops Mr. Pollixfen I must confess I hear them say two Acts prove a Publication in this Case the one is the Writing of the Libel and the Subscribing If so then I think upon the Evidence that has been given the Court must needs be satisfied that the Writing of it was in Surrey The next is their owning their Hands for there is no Act done that appears or any Evidence against them of any Act done from the time of the Writing to the time that they were asked is this your Hand Surely no Man would ever think this to be a Publication where one is asked by Authority whether such a Paper be his Hand and he acknowledges 〈◊〉 in Answer to that Question to turn this to be a Crime I think it can never be done nor never was done before Then there is nothing in the Case that they can hold to for Evidence and Proof against my Lords the Bishops but the Writing and that is apparent to
have been in Surrey or otherwise they must hold that the Answer to the King's Question this is my Hand is a Publication But truly my Lord I think neither of these will do But my Lord to me this is a great Evidence in it self against the Proof of a Publication the Care and Wariness that has been used that there should be nothing at all of this Matter known from the time that it was written to the time that they came to be examined and summoned to appear as Offenders My Lord the Nature of Libels is to publish and proclaim Scandal and Defamation or else it loses its End and consequently its Name This as it stands upon their Evidence is a monstrous Proof for my Lords the Bishops against the King's Council for it seems 't is a very private Matter so cautiously and warily carried that there is not any Evidence of the Fact but only the Names of the persons that writ it till they come to be examined by the greatest Authority Is this your Hand and then they own it so to be how can this be taken to be a Publication and it will be a thing of wonderful Consequence if an Answer to a Question put by Authority should amount to a Crime as it would in this Case that would be as if Authority that should be employed to do Right would be turned to do the greatest Wrong for it is the Duty of all men to answer when examined by a lawful Authority and it would never be offered at sure in any other Case If a Man comes before a Magistrate and confesses any thing that indeed is Evidence but is not a Crime for there is a great deal of difference between Evidence and the Crime but that this should be both an Evidence and a Crime too is I think a very strange Construction and for the other part the writing of it I suppose the Court is satisfied that it was in another County Sir Geo. Treby I desire your Lordship to spare me a Word which I think has not been observed by the Council that have spoke before The Question that remains is Whether my Lords the Bishops did Publish this Paper This is a matter of Fact that lies upon the Prosecutors to prove Now I think they are so far from having proved that the Bishops did publish it that on the contrary they have proved that their Lordships did not Publish it The Evidence they have offered for this matter is a Confession This Confession is testified by Mr. Blathwayt and he says the Bishops were ask'd at the Council whether they did subscribe and publish this paper and that their answer was that they did subscribe but not publish it Now a Confession must be taken together and must be admitted to be intirely true by them that produce it they shall never be allowed to take out and use one piece and wave the rest Why then by this Evidence of Confession taken as it ought it appears that the Bishops though they did subscribe did not publish the paper So that I say the King's Counsel have hereby plainly proved that the Bishops did not publish this paper and yet this is the onely Evidence upon which they would infer that they did publish it Mr. Att. Gen. Look you it does lie upon you Gentlemen to prove it was done elsewhere than in Middlesex Mr. Finch Sure Mr. Attorney is in jest Mr. Att. Gen. No I am in good earnest all the proof that we have given has been in Middlesex and you can best tell whether you did it in Middlesex or no. Mr. Finch My Lord we have done as to this Objection for we say they have not proved their Case L. Ch. Iust. Mr. Finch you may observe and I am sure you do observe as well as any body in all Cases but I say you may observe that they are off of every thing but causing it to be published now that does lie upon the King's Counsel to prove that my Lords the Bishops did cause it to be published for their owning of their hands does not amount to a Publication Mr. S. Pemberton My Lord We are upon this point with them whether here be any Evidence of a Publication at all Mr. Iust. Powell Pray let us clear this first for if there be no publication there can be no causing of it to be published Mr. Att. Gen. My Lord if you think fit we shall go on and reserve this point till afterwards Mr. Sol. Gen. They may make Objections if they think fit L 〈◊〉 Iust. So they may and they say if these Objections are with us we need go no farther Mr. S. Pemberton But my Lord if they be not with us we have a reserve to give a farther Answer to it and to offer Evidence against the Evidence they have offered Mr. Sol. Gen. With all our hearts give in Evidence what you can Mr. Att. Gen. Then pray my Lord let us go on to answer this Objection L. Ch. Iust. Pray do Mr. Attorney Mr. Att. Gen. My Lord and Gentlemen of the Jury I would first observe how far we have gone That there was such a paper written is clear beyond all question and written by my Lord Archbishop of Canterbury and that it was signed by the rest of the Bishops but not in the County of Middlesex and that this paper was published is agreed on all hands Mr. Iust. Holloway No they do not agree that Mr. Att. Gen. Do I say it was published by them but there was such a paper published Mr. S. Pemberton No we say it was never published at all L. Ch. Iust. Pray Brother Pemberton be quiet if Mr. Attorney in opening does say any thing that he ought not to say I will correct him as I would do any body that does not open things right as they are proved but pray don 't you that are at the Bar interrupt one another it is unbecoming men of your Profession to be chopping in and snapping at one another Go on Mr. Attorney Mr. Att. Gen. I say that the Paper is proved to be written and signed by my Lords the Bishops that I take for granted and that the Paper so signed and written is now published to the world is also evident but the question is who it was done by or who caused it to be done we are reduced to that question Now first it is agreed on all hands that if I send a Letter to a private Man containing Scandalous things in it though there is no proof more but that it was sent sealed and received by the party in that Case it was a fault punishable in the Star-Chamber as a Crime but now that this was received by the King and written by them there is no room for doubt for you hear it was produced by the King at the Council-Board and they asked upon it if it were their hands that the King did receive it there is no room for question or that they did write it but
there was nothing of Sedition nothing of Malice nothing of Scandal in it nothing of the Salt and Vinegar and Pepper that they have put into the Case We shall prove the Matters that I have open'd for our Defence and then I dare say your Lordship and the Jury will be of Opinion we have done nothing but our Duty Mr. Finch May it please your Lordship and you Gentlemen of the Jury This Information sets forth as you may observe upon opening it that the King having by his Royal Prerogative set forth his Declarations that have been read and made an Order of Council for the Reading the said Declarations in the Churches and that the Archbishop and Bishops should severally send them into their Diocesses to be read my Lords the Bishops that are the Defendants did consult and conspire together to diminish the Kingly Authority and Royal Prerogative of the King and his Power and Government in his Regal Prerogative in setting forth his Declaration and that in prosecution of that Conspiracy they did contrive as it was laid in the Information a malicious seditious scandalous false and feigned Libel under pretence of a Petition and so set forth the Petition and that they published the Petition in the presence of the King. To this Charge in the Information Not Guilty being pleaded the Evidence that hath been given for the King I know hath been observed by the Court and the Jury and I know will be taken into Consideration how far it does come up to the Proof of the Delivery of this Petition by my Lords the Bishops for all that was said till my Lord President was pleas'd to come was no Evidence of any Delivery at all and my Lord Preâ—…dent's Evidence is that they were going to deliver a Petition but whether they did deliver it or did it not or what they did deliver he does not know This is all the Evidence that has been given for the King. But supposing now my Lord that there were room to presume that they had delivered this Petition set forth in the Information let us consider what the Question is between the King and my Lords the Bishops The Question is Whether they are guilty of Contriving to diminish the King's Regal Authority and Royal Prerogative in his Power and Government in setting forth this Declaration Whether they are guilty of the making and presenting a malicious seditious and scandalous Libel and whether they have published it as it is said in the Information in the King's Presence So that the Question is not now reduced to this Whether this Paper that is set forth in the Information was delivered to the King by my Lords the Bishops but whether they have made a malicious seditious and scandalous Libel with an Intent to diminish the King's Royal Prerogative and Kingly Authority And then if you Gentlemen should think that thâ—… is Evidence given sufficient to prove that my Lords the Bishops have delivered to the King that Paper which is set forth in the Information yet unless they have delivered a false malicious seditious and scandalous Libel unless they have published it to stir up Sedition in the Kingdom and unless they have contrived this by Conspiracy to diminish the King 's Royal Prerogative and Authority and that Power that is said to be iâ—… the King my Lords the Bishops are not guilty of this Accusation There are in this Declaration several Clauses which upon reading of the Information I am sure cannot but have been observed by you Gentlemen of the Jury and one special Clause hath been by the Council already opened to you and I shall not enlarge upon it My Lord This Petition that is thus delivered to the King if it be a Libel a scandalous and seditious Libel as the Information calls it it must be so either for the Matter of the Petition or for the Persons that deliver'd the Petition or for the manner of their presenting and delivering it But neither for the Matter nor for the Persons nor for the manner of presenting it is there any Endeavour to dimâ—…nish the King 's Royal Prerogative nor to stir up Sedition nor Reflection upon the King 's true Royal and Kingly Authority The Petition does humbly set forth to His Majesty that there having been such a Declaration and such an Order of Council they did humbly represent to His Majesty that they were not averse to any thing commanded them in that Order in respect to the just and due Obedience that they owed to the King nor in respect of their want of a due Tenderness to those Persons to whom the King had been pleased to shew his Tenderness but the Declaration being founded upon a Power of Dispensing which had been declared illegal in Parliament several times and particularly in the Years 1662 72 and 85. they did humbly beseech His Majesty they not being able to comply with his Command in that matter that he would not insist upon it Now my Lord Where is the Contrivance to diminish the King's Regal Authority and Royal Prerogative This is a Declaration founded upon a Power of Dispensing which undertakes to suspend all Laws Ecclesiastical whatsoever for not Coming to Church or not Receiving the Sacrament or any other Nonconformity to the Religion established or for or by reason of the Exercise of Religion in any manner whatsoever Ordering that the Execution of all those Laws be immediately suspended and they are thereby declared to be suspended as if the King had a Power to suspend at once all the Laws relating to the establish'd Religion and all the Laws that were made for the Security of our Reformation These are all suspended by His Majesty's Declaration as it is said in the Information by virtue of his Royal Prerogative and Power so to do Now my Lord I have always taken it with Submission that a Power to abrogate Laws is as much a part of the Legislature as a Power to make Laws A Power to lay Laws asleep and to suspend Laws is equal to a Power of Abrogating them for they are no longer in Being as Laws while they are so laid asleep or suspended And to abrogate all at once or to do it time after time is the same thing and both are equally parts of the Legislature My Lord In all the Education that I have had in all the small Knowledge of the Laws that I could attain to I could never yet hear of or learn that the Constitution of this Government in England was otherwise than thus That the whole Legislative Power is in the King Lords and Commons the King and his two Houses of Parliament But then If this Declaration be founded upon a part of the Legislature which must be by all Men acknowledged not to reside in the King alone but in the King Lords and Commons it cannot be a legal and true Power or Prerogative This my Lord has been attempted but in the last King's time it never was pretended till
then and in that first Attempt it was so far from being acknowledged that it was taken notice of in Parliament and declared against So it was in the Years 1662. and 1672. In the Year 62. where there was but the least Umbrage given of such a Dispensing Power although the King had declared in his Speech to the Parliament that he wished he had such a Power which his Declaration before seemed to assume the Parliament was so jealous of this that they immediately made their Application to His Majesty by an Address against the Declaration and they give Reasons against it in their Address One in particular was That the King could not dispense with those Laws without an Act of Parliament There was another Attempt in 1672. and then after His Majesty had in his Speech mentioned his Declaration to them the Parliament there again particularly the House of Commons did humbly address to His Majesty setting forth that this could not be done by Law without an Act of Parliament And your Lordship by and by upon reading the Record will be satisfied what was the Event of all this His Majesty himself was so far pleased to concurr with them in that Opinion that he cancell'd his Declaration tore off the Seal and caused it to be made known to the House of Lords by the Lord Chancellor who by His Majesty's Command satisfied the House of it that His Majesty had broken the Seal and cancell'd the Declaration with this further Declaration which is enter'd in the Records of the House That it should never be drawn into Example or Consequence My Lord The Matter standing thus in respect to the King's Prerogative and the Declarations that had been made in Parliament consider next I beseech you how far my Lords the Bishops were concerned in this Question humbly to make their Application to the King. My Lords the Bishops lying under a Command to publish this Declaration it was their Duty as Peers of the Realm and Bishops of the Church of England humbly to apply themselves to His Majesty to make known their Reasons why they could not obey that Command and they do it with all Submission and all Humility representing to His Majesty what had been declared in Parliament and it having been so declared they could not comply with his Order as apprehending that this Declaration was founded upon that which the Parliament declared to be illegal and so His Majesty's Command to publish this Declaration would not warrant them so to do This they did as Peers and this they had a Right to do as Bishops humbly to advise the King. For suppose my Lord which is not to be supposed in every Case nor do I suppose it in this but suppose that there might be a King of England that should be mis-led I do not suppose that to be the Case now I say but I know it hath been the Case formerly that the King should be environed with Counsellors that had given him evil Advice it has been objected as a Crime against such evil Counsellors that they would not permit and suffer the Great Men of the Kingdom to offer the King their Advice How often do we say in Westminster-Hall That the King is deceived in his Grant There is scarce a Day in the Term but it is said in one Court or other but it was never yet thought an Offence to say so And what more is there in this Case My Lord If the King was mis-informed or under a Mis-apprehension of the Law my Lords as they are Peers and as they are Bishops are concerned in it and if they humbly apply themselves to the King and offer him their Advice where is the Crime My Lord These noble Lords the Defendants had more than an ordinary Call to this for besides the Duty of their Office and the Care of the Church that was incumbent on them as Bishops they were here to become Actors for they were by that Order of Council commanded themselves to publish it and to distribute it to the several Ministers in their several Diocesses with their Commands to read it Therefore they had more than ordinary Reason to concern themselves in the Matter Next We are to consider my Lord in what manner this was done They make their Application to the King by an humble Petition with all the Decency and Respect that could be shewn asking leave first to approach his Person and having leave they offer'd my Lord President the Matter of their Petition that nothing might seem hard or disrespectful or as if they intended any thing that was unfit to be avowed When they had taken all this Care in their Approach and begging leave for it they come secretly to the King in private when he was all alone and there they humbly present this Petition to His Majesty Now how this can be called the Publication of a malicious and seditious Libel when it was but the Presenting of a Petition to the King alone And how it can be said to be with an Intent to stir up Sedition in the People against His Majesty and to alienate the Hearts of his People from him when it was in this private manner delivered to him himself only truly I cannot apprehend My Lord I hope nothing of this can be thought an Offence If the Jury should think that there has been Evidence sufficient given to prove that my Lords the Bishops did deliver this Paper to the King yet that is not enough to make them guilty of this Information unless this Paper be likewise found to be in Diminution of the King 's Royal Prerogative and Regal Authority in dispensing with and suspending of all Laws without Act of Parliament Unless it be found to be a Libel against the King to tell him That in Parliament it was so and so declared And unless the presenting this by way of Petition which is the Right of all People that apprehend themselves aggrieved to approach His Majesty by Petition be a Libelling of the King And unless this humble Petition in this manner presented to the King in private may be said to be a malicious and seditious Libel with an Intent to stir up the People to Sedition Unless all this can be found there is no Man living can ever find my Lords the Bishops guilty upon this Information Therefore my Lord we will go on and make out this Matter that we have opened to your Lordship if Mr. Attorney and Mr. Sollicitor think fit to argue the Points that we have opened Mr. Pollixfen Pray my Lord spare me a Word on the same Side For the first Point It is a Point of Law whether the Matter contained in this Petition be a Libel The King's Council pretend it is so because it says the Declaration is founded upon a Power the Parliament has declared to be illegal But we say that whatsoever the King is pleased to say in any Declaration of his it is not the King 's saying of it that makes