Trial of the Seven Bishops, June 29-30, 1688
On June 29 and June 30, 1688, seven bishops were brought to trial before the Court of King's Bench on a charge of seditious libel. The previous April 18, King James II had re-issued his Declaration of Indulgence, and on May 4 he had published an order that the Declaration be read out in every church in the country. On May 18 the seven bishops had submitted a petition to the King in which they refused to obey the King's order.
The judges on the Court of King's Bench included:
Counsel for the King included:
Counsel for the seven bishops included:
The following text is excerpted from The Proceedings and Tryal in the Case of the Most Reverend Father in God, William, Lord Archbishop of Canterbury, London: Printed for Thomas Basset and Thomas Fox, 1689 (Wing / S564).
Serjeant Levinz (for the defence). Now, my Lord, if your Lordship pleases, the charge is a charge for a libel, and there are two things to be considered.
First, whether the bishops did deliver this paper to the King? But that we leave upon the evidence that has been given; only we say, there has been no direct proof of that.
In the next place, supposing they did deliver this petition to the King, whether this be a libel upon the matter of it, the manner of delivering it, or the persons that did it?
And with submission, my Lord, this cannot be a libel, although it be true that they did so deliver it.
First, my Lord, there is little disingenuity offered to my Lords the bishops, in only setting forth part, and not the whole; in only reciting the body, and not the prayer.
But, my Lord, with your Lordship's favour, taking the petitionary part, and adding it to the other, it quite alters the nature of the thing; for it may be, a complaint without seeking redress might be an ill matter; but here taking the whole together, it appears to be a complaint of a grievance, and a desire to be eased of it.
With your Lordship's favour, the subjects have a right to petition the King in all their grievances, so say all our books of law, and so says the statute of the thirteenth of the late King; they may petition, and come and deliver their petition under the number of ten, as heretofore they might have done, says the statute; so that it were the most lamentable thing in the world, that men must have grievances upon them, and yet they not to be admitted to seek relief in an humble way.
Now, my Lord, this is a petition setting forth a grievance, and praying His Majesty to give relief. And what is this grievance? It is that command of his, by that order made upon my Lords the bishops, to distribute the declaration, and cause it to be read in the churches: and pray, my Lord, let us consider what the effects and consequences of that distribution and reading is: it is to tell the people, that they need not submit to the Act of Uniformity, not to any act of Parliament made about ecclesiastical matters, for they are suspended and dispensed with. This my Lords the bishops must do, if they obey this order; but your Lordship sees, if they do it, they lie under an Anathema by the statute of 1 Eliz., for there they are under a curse if they do not look to the preservation and observation of that act: but this command to distribute and read the declaration, whereby all these laws are dispensed with, is to let the people know, they will not do what the act requires of them.
Now, with your Lordship's favour, my Lords the bishops lying under this pressure, the weight of which was very grievous upon them, they by petition apply to the King to be eased of it, which they might do as subjects: besides, my Lord, they are peers of the realm, and were most of them sitting as such in the last Parliament, where, as you have heard, it was declared, such a dispensation could not be; and then in what a case should they have been, if they should have distributed this declaration, which was so contrary to their actings in Parliament? What could they have answered for themselves, had they thus contributed to this declaration, when they had themselves before declared, that the King could not dispense?
And that this was no new thing, for it had been so declared in a Parliament before, in two sessions of it, in the late King's reign within a very little time one of another; and such a Parliament that were so liberal in their aids to the crown, that a man would not think they should go about to deprive the crown of any of its rights. It was a Parliament that did do as great services for the crown as ever any did, and therefore there is no reason to suspect, that if the King had had such a power, they would have appeared so earnest against it.
But, my Lord, if your Lordship pleases, these are not the beginnings of this matter; for we have shown you from the fifteenth of Richard II, that there was a power granted by the Parliament to the King to dispense with a particular act of Parliament, which argues, that it could not be without an act of Parliament: and in 1662, it is said expressly, that they could not be dispensed with but by an act of Parliament. It is said so again in 1672. The King was then pleased to assume to himself such a power as is pretended to in this Declaration; yet upon information from his houses of Parliament, the King declared himself satisfied that he had no such power, cancelled his declaration, and promised that it should not be drawn into consequence or example. And so the commons, by their protestation, said in Richard II's time, that it was a novelty, and should not be drawn into consequence or example.
Now, my Lord, if your Lordship pleases, if this matter that was commanded the bishops to do, were something which the law did not allow of, surely then my Lords the bishops had all the reason in the world to apply themselves to the king, in an humble manner to acquaint him why they could not obey his commands: and to seek relief against that which lay so heavy upon them.
Truly, my lord, Mr. Attorney was very right in the opening of the cause at first, that is, That the government ought not to receive affronts, no, nor the inferior officers are not to be affronted; a justice of the peace, so low a man in office, is not. For a man to say to a justice of the peace, when he is executing his office, that he does not right in it, is a great crime, and Mr. Attorney said right in it: but suppose a justice of the peace were making of a warrant to a constable, to do something that was not legal for him to do, if the constable should petition this justice of the peace, and therein set forth, Sir, you are about to command me to do a thing which, I conceive, is not legal; surely that would not be a crime that he was to be punished for: for he does but seek relief, and shew his grievance in a proper way, and the distress he is under.
My Lord, this is the bishops' case with submission; they are under a distress being commanded to do a thing which they take not to be legal, and they with all humility, by way of petition acquaint the king with this distress of theirs, and pray him, that he will please to give relief.
My lord, there is no law but is either an act of parliament or the common law; for an act of parliament there is none for such a power; all that we have of it in parliamentary proceedings is against it; and for the common law, so far as I have read it, I never did meet with anything of such a nature, as a grant or dispensation that pretended to dispense with any one whole act of parliament; I have not so much as heard of any such thing mentioned that dispenses with a great many laws at once, truly I cannot take upon me to tell how many, there may be forty of above, for aught I know.
Therefore, my lord, the bishops lying under such a grievance as this, and under such a pressure, being ordered to distribute this declaration in all their churches, which was to tell the people they ought to be under no law in this case, which surely was a very great pressure, both in point of law and conscience too, they lying under such obligations to the contrary as they did; with submission to your lordship, and you gentlemen of the jury, if they did deliver this petition (publishing of it I will not talk of, for there has been no proof of a publication, but a delivering of a petition to His Majesty in the most secret and decent manner that could be imagined), my lords the bishops are not guilty of the matter charged upon them in this information; it has been expressly proved, that they did not go to dispense it abroad, but only delivered it tot he King himself, and, in short, my Lord, if this should be a libel, I know not how sad the condition of us all would be if we may not petition when we suffer.
Mr. Finch. My Lord, I challenge them to show us any one instance of such a Declaration, such a general dispensation of laws from the Conquest, till 1672. The first umbrage of such a thing is that of Car. II, 1662, but your Lordship hears the Declaration of the Parliament upon it. Before that, as there was no such thing, so your Lordship sees what the Parliament did to enable the King (not to do this thing, but something like it) in Richard II's time, where you see the Parliament did give the King a power to dispense with the Statute of Provisors for a time, but at the same time declared that very grant of their own to be a novelty, and that it should not be drawn into consequence or example.
My Lord, we shall leave it upon this point, to suspend laws is all one as to abrogate laws, for so long as a law is suspended, whether the suspension be temporary or whether it be forever, whether it be at once or at several times, the law is abrogated to all intents and purposes. But the abrogation of laws is part of the Legislature, that legislative power is lodged (as I said before) and I could never find it otherwise in all our law, in King, Lords, and Commons.
Lord Chief Justice. You did open that before, Mr. Finch.
Mr. Finch. With this my Lord, that my Lords the bishops, finding this order made upon them to publish this Declaration, did what in duty they were bound to do, and unless the jury do find that they have done that which is contrary to law, and to the duty of their places, and that this petition is a libel, and a seditious libel, with an intent to stir up sedition among the people, (we rely upon it) my Lords, the bishops, can never be found guilty upon this information.
Lord Chief Justice. Have you now done, Gentlemen?
Mr. Finch. Yes, my Lord, till they give us further occasion, if they have any other evidence to offer, we must answer it; if not, this is the answer we give to that they have said.
Mr. Solicitor General. We make no bargain with you. If you have done, say so.
Lord Chief Justice. You must know that you are not to have the last word.
Mr. Solicitor General. You have been three hours already. If you have any more to say, pray, conclude.
Mr. Finch. If they say they have no more evidence, then we know what we have to do.
Lord Chief Justice. If you do say anything more, pray let me advise you one thing: don't say the same thing over and over again, for after so much time spent, it is irksome to all company as well as to me.
Mr. Finch. My Lord, we have no more evidence to offer your Lordship at present, unless they, by offering new evidence, give us occasion to reply upon them.
Lord Chief Justice. Gentlemen, you shall have all the legal favour and advantage that can be; but, pray, let us keep to an orderly, decent method of proceeding.
Sir Robert Sawyer. Pray, my Lord, favour me with a word before we conclude. My Lord, I do find a very few attempts of this nature in any king's reign.
In the reign of Henry IV, there was an Act of Parliament that foreigners should have a free trade in the City of London, notwithstanding the franchises of London. After the Parliament rose, the King issued out his Proclamation forbidding the execution of that law, and commanding that it should be in suspence usque ad proximum Parliamentum, yet that was held to be against law.
Lord Chief Justice. Sir Robert Sawyer, that which you are to look to, is the publishing of this paper, and whether it be a libel or no. And as to the business of the Parliaments you mentioned, they are not to the purpose.
Sir Robert Sawyer. My Lord, I say I would put it where the question truly lies, if they don't dispute the point, then we need not labour it. But I don't know whether they will or no, and therefore I beg your Lordship's favour to mention one case more, and that is upon the Statute of 31 Hen. 8., cap. 8, which enables the King by proclamation in many cases to create the law, which Statute was repealed by 1 Edw. 6., cap. 12. That very act does recite that the law is not to be altered or restrained but by Act of Parliament, and therefore the Parliament enables the King to do so and so. But that was such a power that the Parliament thought not fit to continue, and it was afterwards repealed, but it shows that at that time the Parliament was of the same opinion as to this matter that other Parliaments have been since.
Mr. Somers. My lord, I would only mention the great case of Thomas and Sorrel in the Exchequer-chamber, upon the validity of a dispensation of the statute of Edward the 6th, touching selling of wine. There it was the opinion of every one of the judges, and they did lay it down as a settled position, that there never could be an abrogation, or a suspension (which is a temporary abrogation) of an act of parliament, but by the legislative power. That was a foundation laid down quite through the debate of that case. Indeed it was disputed how far the king might dispense with the penalties in such a particular law, as to particular persons; but it was agreed by all, that the king had no power to suspend any law: and, my lord, I dare appeal to Mr. Attorney General himself, whether, in the case of Godden and Hales, which was lately in this court, to make good that dispensation, he did not use it as an argument then, that it could not be expounded into a suspension: he admitted it not to be in the king's power to suspend a law, but that he might give a dispensation to a particular person, was all that he took upon to justify him at that time.
My lord, by the law of all civilised nations, if the prince does require something to be done, which the person who is to do it takes it to be unlawful, it is not only lawful, but his duty, rescribere principi. This is all that is done here, and that in the most humble manner that could be thought of. Your lordship will please to observe how far it went, how careful they were that they might not any way justly offend the king; they did not interpose by giving advice, as peers; they never stirred 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 matters of fact alleged in the said petition, that they are perfectly true, we have shown 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 has 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 could 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 aggrieved.
Mr. Attorney General. Have you done, gentlemen?
Mr. Finch. We have done, Sir.
Mr. Attorney General. 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 Council to read His Majesty's 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 justify the using such a course for never so good an end.
My Lord, for the thing itself, I do admire that they, in so long a time and search that they have made, should not (which I expected) produce more precedents of such a paper as this. They challenge us to show that ever there was any such Declaration as this; I'l; turn the same challenge upon them. Show 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 Justice. 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 anybody 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 II, yet they have nothing between that and the late King's reign, to which at last they have descended down.
But, my Lord, I say, that all the talk of Richard II's time is wholly out of the case. Truly, I do not doubt but that in Richard II's 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 40,000 men in arms against the King, and we know the troubles that were in that King's 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 II's time, do they any ways justify 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 show anything 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 of 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, that these gentlemen have spent all this time to no purpose.
Lord Chief Justice. Yes, Mr. Attorney, I'll tell you what they offer, which it will lie upon you to give an answer to: They would have you show how this has disturbed the Government or diminished the King's authority?
Mr. Attorney General. Whether a libel be true or not as to matter of fact, was it ever yet in any court of justice permitted to be made a question whether it be a libel or not? Or whether the party be punichsable for it; and therefore I wonder to hear these gentlemen to say, that because it is not a false one, therefore it is not a libel. Suppose a man should speak scandalous matter or any noble lord here, or of any of my Lords the bishops, and a scandalum magnatum be brought for it, though that which is spoken has been true, yet it has been the opinion of the courts of law that the party cannot justify it, by reason it tends to the disturbing of the peace, to publish anything that is matter of scandal. The only thing that is to be looked into is whether there be anything in this paper that is reflecting and scandalous, and not whether it be true or no, for if any man shall extra-judicially and out of a legal course and way reflect upon any of the Great Officers of the Kingdom, nay, if it be but upon any inferior magistrate, he is to be punished, and is not to make his complaint against them, unless he do it in a proper way. A man may petition a judge, but if any man in that petition shall come and tell the judge, "Sir, you have given an illegal judgement against me, and I cannot in honour, prudence or conscience obey it," I do not doubt, now will any man, but that he that should so say would be laid by the heels, though the judgement perhaps might be illegal.
If a man shall come to petition the King, as (we all know) the Council doors are thronged with petitioners everyday, and access to the King by petition is open to everybody, the most inferior person is allowed to petition the King, but because he may do so, may he therefore suggest what he pleases in his petition, shall he come and tell the King to his face, what he does is illegal? I only speak this because they say in this case, His Majesty gave them leave to come to him to devlier their petition; but the King did not understand the nature of their petition, I suppose, when he said he gave them leave to come to him.
My Lord, for this matter we have authority enough in our books, particularly there is the case of Wrenham in my Lord Hobart; the Lord Chancellor had made a decree against him, and he petitioned the King, that the cause might be reheard, and in that petition he complains of injustice done him by my Lord Chancellor, and he put into his petition many reflecting things; this, my Lord, was punished as a libel in the Star Chamber. And in that book it was said, that though it be lawful for the subject to petition the King against any proceedings by the judges, yet it must not be done with reflections, not with words that turn to the accusation of scandal of any of the King's magistrates or officers, and the justice of the decree is not to be questioned in the case; for there Wrenham in his defence would have opened the particulars, wherein he thought the decree was unjust, but that the Court would not meddle with, nor would allow him to justify for such illegality in the decree; so in this case, you are not to draw in question the truth or falsehood of the matter complained against, for you must take the way the Law has prescribed, and prosecute your right in a legal course, and not by scandal and libelling.
My Lord, there is a great deal of difference between not doing a thing that is commanded, if one be of opinion that it is unlawful, and coming to the King with a petition highly reflecting upon the Government, and with scandalous expressions, telling him, "Sir, you act illegally;, you require of us that which is against prudence, honour, or conscience," as my Lords the Bishops are pleased to do in this petition of theirs. I appeal to any Lord here, that if any man should give him such language, either by word of mouth or petition, whether he would bear it, without seeking satisfaction and reparation by the Law?
My Lord, there is no greater proof of the influence of this matter than the crowd of this day, and the harangue that has been made; is it not apparent that the taking this liberty to canvas and dispute the King's power and authority, and to censure his actions, possess the people with strange opinions, and raises discontents and jealousies, as if the free course of Law were restrained, and arbitrary will and pleasure set up instead of it?
My Lord, there is one thing that appears upon the face of the information, which shows this not to be the right course, and if my Lords the bishops had given themselves the opportunity of reading the Declaration seriously, they would have found in the end of the Declaration, that the King was resolved to call a Parliament in November; might not my Lords the bishops have acquiesced under their passive obedience till the Parliament met? But nothing would serve them, but this; and this must be done out of Parliament, for which there is no precedent can be shown, and this must be done in such a manner, as your Lordship sees the consequence of, by your trouble of this day.
There is one thing I forgot to speak to, they tell us, that it is laid malicious and seditious, and there is no malice or sedition found, we know very well, that that follows the fact, those things arise by construction of Law, out of the fact. If the thing be illegal, the Law says it is seditious; a man shall not come and say, he meant no harm in it. That was the case of Williams in his treasonable book, (says he) "I only intended to warn the King of the danger approaching" and concludes his book with "God save the King". But no man will say, that a good preface at the beginning, or a good prayer at the end, should excuse treason or sedition in the body of the book; if I meet another man in the street and kill him, though I never saw him in my life, the indictment is, that is was ex malitia precogitata, as it often happens, that a person kills one he never had acquaintance with before, and in favorem vitae, if the nature of the fact be so, the jury are permitted to find according to the nature of the case, but in strictness of Law, there is malice implied. But my Lord, I think these matters are so common, and that is a point that has been so often settled, that the form of the indictment and information must follow the nature of the fact, that I need not insist upon it; if the act be unlawful, the Law supplies the malice and evil intentions.
Mr. Solicitor-General. My Lord and gentlemen of the Jury, I am of counsel in this case for the King, and I shall take leave to proceed in this method: first, I shall put the case of my Lords the bishops, and then consider the arguments that have been used in their defence, and answer them as much as is material to be answered, and then leave it to your Lordship and the Jury's consideration whether what has been said by these gentlemen weigh anything in this case?
First, my Lord, I take it for granted, and I think the matter is pretty plain by this time, by my Lord President's evidence, and their own confession, that it is not to be disputed but that this paper was presented by these Lords to the King. I think that there is no great difficulty in that matter at all, but I just touch upon it, because I would follow them in their own method.
Then, my lord, let us take this case as it is, upon the nature of the petition, and the evidence that they have given, and then consider whether it will justify all that is done: for the business of petitioning, I would distinguish and inquire, whether my lords the bishops out of parliament can present any petition to the king? I do agree, that in parliament the lords and commons may make addresses to the king, and signify their desires, and make known their grievances there; and there is no doubt but that is a natural and proper way of application: for in the beginning of the parliament, there are receivers of petitions appointed, and upon debates, there are committees appointed to draw up petitions and addresses; but to come and deduce an argument, that because the lords in parliament have done thus (there being such methods of proceedings usual in parliament) therefore my lords the bishops may do it out of parliament, that is certainly a non sequitur, no such conclusion can be drawn, from those premises.
My lord, I shall endeavour to lay the fact before you as it really is, and then consider what is proper for the court to take notice of as legal proof or evidence: and I take it, all those precedents that they have produced of what the lords did, and what the commons did in parliament, is no warrant for them to shelter themselves under, against the information here in question.
[Here Mr. Justice Powell spake aside to the Lord Chief Justice thus.]
Mr. Justice Powell. My Lord, this is strange doctrine! Shall not the subject have liberty to petition the king but in parliament? If that be law, the subject is in a miserable case.
Lord Chief Justice. Brother, let him go on, we will hear him out, though I approve not of his position.
Solicitor-General. The Lords may address to the king in parliament, and the commons may do it, but therefore that the bishops may do it out of parliament, does not follow. I heard nothing said that could have given colour to such a thing, but the curse that has been read in 1 Elizabeth.
But pray, my Lord, let us consider that evidence they have given, they have begun with that record in Richard II's time, and what is that? That the King may dispense with the Statute of Provisors till the meeting of the next Parliament, and a protestation of the Commons at the end of it, whether that be an Act of Parliament, that is declaratory of the Common Law, or introductory of a new law, non constat, and for ought appears, it might be a declaratory act. And if so, it is a proof of the King's prerogative of dispensing. It might be an act in affirmance of the King's prerogative, as there are a great many such we very well know; and generally most of the laws in that kind are in affirmance of the King's power, so that the Law turns as an argument for the King['s] prerogative, and they have given him that which will turn upon themselves, so it stood in Richard II's time, but whether that be an argument one way or other conclusive is left to your Lordship and the Jury.
Ay, but say they, there is no execution of such a power till very lately, and the first instance that they produce is that in the year 1662. But your Lordship knows that before the reign of Henry IV there was great jurisdiction assumed by the Lords in original causes, then comes the Statute of Appeals, 1 Hen. 4, which takes notice that before that time the Lords has assumed an original jurisdiction in all causes, and would proceed and determine them in Parliament and out of Parliament, and it fell out to be so great a grievance that it was thought necessary to make a law against it, that appeals in Parliament should be abolished and destroyed, and then comes that law in favour of the subject of England, and that settles the bounds between the King and the Lords in a great measure; before that time the Lords were grown very powerful and where there is a power, there always will be applications, and what is the effect of that stature 1 Hen. 4, for all that we endeavour, is, to make things as plain can be, that no further applications, no accusations, no proceedings in any case whatsoever be before the Lords in Parliament, unless it be by impeachment of the Commons, so that there is the Salvo, and the use that I make of it is this: The Commons by that very statute did abolish the power that the Lords had arrogated to themselves, and ordered that they should not meddle with any cause, but upon the impeachment of the House of Commons, and establish the impeachment of the Commons, which is as ancient as the Parliament, for that was never yet spoken against; the power of the Commons impeaching any person under the degree of the Prince, and that is the regular legal way, and so the Commons asserted their ancient right, and whatsoever the Lords took notice of, must come by application of the Commons, then conferences were to pass between the Houses, and both Houses by address apply to the King, this is the proper way and course of Parliament, of which my Lord Cook says, "It is known to few, and practised by fewer, but it is a venerable, honourable way," and this is the course that should have been taken by my Lords here, and they should have stayed till the complaint had come from the Commons in Parliament, and then it had been regular for them to address to the King; but they were too quick, too nimble.
And whereas the statute of Hen. 4 says, "That no Lord whatsoever shall intermeddle with any cause, but by the impeachment of the Commons," they interpose and give their advice before their time; if there be any irregularity in Parliament or out of Parliament, the Commons are to make their complaint of it, and a man must not be his own judge, nor his own carver, nor must every man create difficulties of his own, nor set upon petitioning in this sort. But there I lay my foundation, that in such a matter as this there ought to have been the impeachment of the Commons in Parliament before these Lords could do anything; and I know nothing can be said for the bishops more than this, that they were under an anathema, under the curse that Sir Robert Sawyer speaks of, and for fear of that they took this irregular course. Bon some would say, "Better fall into the hands of God than of men"; some would say so, (I say) I know not what they would say; but these being the methods that these Lords should have taken, they should have pursued that method, the Law should have carved out their relief and remedy for them, but they were for going by a new fancy of their own.
My Lord, the Law continued thus, and was practised so till the 3. Hen. 7. where the grievance was found that offences in the intervals of Parliament could not be well punished, and then comes the statute that sets up the Court of Star-Chamber, and there men were often brought to judgement and punishment for their sins; and though very great power was given them, yet they arrogated to themselves a greater; and therefore that Court is abolished by the statute of the 15th. Car. 1. and what is the reason of abolishing that statute? Because the Star-Chamber did not keep within their bounds that the Law set them, but assumed to themselves a larger power than the Law would allow; and grew very exorbitant and very grievous to the subject. And another reason was, which the statute of 15th. Car. 1. founded itself upon, because there was nothing that was brought in judgement before that Court, but might be relieved and remedied in the ordinary methods of justice in the Courts of Westminster Hall. So that upon those two considerations, because that course was exorbitant, and because all the sins and misdemeanours that were punished there, might be punished in an ordinary way of Law in another Court, and therefore thaere no need of that Court, and so it was abolished, and the subject was pretty safe. If there was a crime committed here, a man might come properly before your Lordship into this Court, and have it punished.
My Lord, they find fault with the words in the information, and they say, Why are these words put in, seditious, malicious? If the matter be libellous and seditious we may lawfully say it, and it is no more than the Law speaks, it results out of the matter itself; and, if it be a libellous paper, the Law says it is maliciously and seditiously done, and these gentlemen need not quarrel with us; for so are all the informations in all times past, and it is no more than the vi et armis, which is common form. It may be said, How can the publishing of a libel be said to be done vi et armis? That is only a supposition of Law; and they may as well object to the conclusion of the information, that it was contra coronam et dignitatem domini regis; if it be an illegal thing, or a libel, these are necessary consequences, it is no more than the speaking of the Law upon the fact.
But, my Lord, let us little consider, whether this matter were warrantable, and whether they had any warrant to do what was done; they pretend it was done upon this account, That the King had set forth a Declaration, and had ordered them to read it; which to excuse themselves from, they make this petition, or this libel, (call it what you will) and they use this as the main argument, That they say the King has done illegally, and they tell the King plainly so, that it is illegal; for they take notice of this Declaration, and say it is illegal; because it is contrary to the declarations of Parliament in 1662, 1672, and 1685.
Pray, my Lord, let us consider a little, whether there be any declaration in Parliament that they have given evidence of. Have they read any declaration of the Parliament in 1662? What is a declaration in Parliament but a bill that is passed by the King, Lords, and Commons? That we know to be the meaning, and no other; if it pass the Commons it is no declaration in Parliament; nay, if it pass the Lords and Commons, it is not a declaration in Parliament, except it also pass the King; all these things are nullities, and the Law takes no notice of them; we have it in our books over and over, and no court ought to suffer such evidence to be given. I know these gentlemen are very well acquainted with the authority in Fitz-Herbert's, Title, Parliament, there was an act that was said to be by the King and the Lords, but because the Commons did not agree to it, it is declared and adjudged to be a nullity, and the Court would take no notice of it; and how can any man call that a declaration in Parliament, which is only a vote of the House of Commons, or of the Lords? No sure; that is one of the heads I go upon: it is not a declaration in Parliament unless it be by Act of Parliament.
Indeed, my Lord, there is another sort of a declaration in Parliament before the Lords, as they are a Court of Judicature, and that is a fair declaration too; for if anything comes judicially before the Lords, either by writ of error or by natural appeal from any of the other courts or by adjournment, and there be any judgement given, that is a declaration in Parliament and may be fairly so called. So likewise there is another judicial declaration which is when anything comes before the Lords judicially upon an impeachment of the Commons and they give judgement upon that impeachment, that is a declaration in Parliament. But to say that there is any other declaration in Parliament is to say more than these gentlemen can make out; if they will show me any such I will submit to them, and not speak a word against my Lords the bishops, but, if these learned gentlemen cannot show me any such, then they have not said that was true in this petition that it was so and so declared in Parliament.
For let us consider what there is in this case upon this evidence, for that in 1662 is only a vote and an opinion of the House of Commons; and I always understood, and have been told so by some of the gentlemen of the other side, that such a vote signifies nothing. But besides, it seems to be a mistaken address; for they say in it that the declaration in 1662 which they address against was the first declaration of that sort to suspend laws without Act of Parliament; and yet, in the same breath, they do take notice of the King's Declaration from Breda. But here is a mighty argument used from the King's speech, that because he wished he had such a power, this must be declared in Parliament that he had no such power. Is the speech of the Prince a declaration in Parliament? All the speeches that were made upon the opening of the Parliament, will you say they are declarations in Parliament? Then the Chancellor, or the Keeper's speech, or the Lord Privy Seal's must be a declaration in Parliament. Whoever speaks the sense of the King, if he does not speak that which is law and right, is questionable for it, and several have been impeached for so doing; for they look not upon it as the King's speech, except it be according to Law. Nothing can turn upon the Prince but what is legal; if it be otherwise, it turns upon him that speaks it. I never did hear that a speech made by the Chancellor (and I will appeal to all the Lords that hear me in it) was a declaration in Parliament.
Then, my Lord, we come to the business in 1672, which with that in 1662 and that in Breda, shows that this of the King's is not such a novelty, but has been done often before. In 1672 the King was in distress for money, being entangled in a Dutch war, and wanted supply. He capitulates with his Commons, you have heard it read, and, upon the Commons' address, he asserts it to be his right, and makes his complaint to the Lords how the Commons had used him; for when he gives them a fair answer, they reply, and there are conferences with the Lords about it; but at length it all ends in a speech by the King, who comes and tells them of his present necessities, and so he was minded to remit a little at the instigation of the Commons, and he has a good lump of money for it. Would this amount to a declaration in Parliament? Can my Lords the bishops fancy or imagine that this is to be imposed upon the King, or upon the Court, for a declaration in Parliament?
Then, last of all, for that in 1685, in this King's time. What is it? The Commons make an address to the King, and complain to His Majesty of some of his officers in his Army, * that might pretend to have a dispensation, something of that nature, contrary to the Test Act. And what is done about it? They make their application to the King, and the King answers them, and that is all. But since it is spoken of in the Court I would take notice that it is very well known by the case of Godding and Hales, the judgement of the Court was against the opinion of that address.
But what sort of evidence is all this? Would you allow all the addresses of the House of Commons to be evidence? Give me leave to say it, my Lord. If you suffer these votes, these copies of imperfect bills, these addresses, and applications of one or both Houses to the King to be evidence and declarations in Parliament, then what will become of the Bill of Exclusion? [Here there was a great hissing.] Shall anybody mention that Bill of Exclusion to be a declaration in Parliament? If so, then there is declaration against declaration, the declaration of the Commons against the declaration of the Lords. I know not what judgement my Lords the bishops may be of now, concerning those things of votes and addresses being declarations in Parliament, but I am sure they have spoken against it heretofore; nay, I am sure, some of them have preached against it.
And if my Lords the bishops have said, These are declarations in Parliament, and they are not declarations in Parliament, and if they accuse the King of having done an illegal thing, because he has done that which has been declared in Parliament to be illegal, when it was never so declared, then the consequence is plain: that they are mistaken sometimes; and I suppose by this time they believe it.
I dare say it will not be denied me, that the king may, by his prerogative royal, issue forth his proclamation; it is as essential a prerogative as it is to give his assent to an act of parliament to make it a law. And it is another principle, which I think cannot be denied, that the king may make constitutions and orders in matters ecclesiastical; and that these he may make out of parliament, and without the parliament. If the king may do so, and these are his prerogatives, then suppose the king do issue forth his royal proclamation (and such in effect is this declaration under the great seal) in a matter ecclesiastical, by virtue of his prerogative royal; and this declaration is read in the council, and published to the world, and then the bishops come and tell the king, Sir, you have issued out an illegal proclamation or declaration, being contrary to what has been declared in parliament, when there is no declaration in parliament; is not this a diminishing the king's power and prerogative in issuing forth his proclamation or declaration, and making constitutions in matters ecclesiastical? Is not this a questioning his prerogative? Do not my lords the bishops in this case raise a question between the king and the people? Do not they, as much as in them lies, stir up the people to sedition? For who shall be judge between the king and the bishops? Says the king, I have such a power and prerogative to issue forth my royal proclamation, and to make orders and constitutions in matters ecclesiastical, and that without the parliament, and out of parliament. Say my lords the bishops, you have done so, but you have no warrant for it. Says the king, every prince has done it, and I have done no more than what is my prerogative to do. But this, say the bishops, is against the law. How shall this be tried? Should not the bishops have had the patience to have waited until a parliament came? When the King himself tells them, he would have a Parliament in November at furthest.
Lord Chief Justice. Pray, Mr. Solicitor, come close to the business, for it is very late.
Mr. Solicitor General. My Lord, I beg your patience; you have had a great deal of patience with them; pray spare me a little. I am saying, when the King himself tells them that he would have a Parliament in November at furthest, yet they have no patience to stay till November, but make this application to him. Is not this raising a question upon the King's prerogative in issuing forth declarations? And upon the King's power and right in matters ecclesiastical? And when I have said this, that my Lords the bishops have so done, if they have raised a question upon the right of the King, and the power of the King in matters ecclesiastical, then they have stirred up sedition. That they have so done is pretty plain; and for the consequence of it, I shall appeal to the case in the 2 Cro. 2. Jac 1. That is a plain direct authority for me.
Mr. Justice Powell. Nay, Mr. Solicitor, we all very well know to deny the King's authority in temporals and spirituals as by Act of Parliament is high treason.
Mr. Solicitor General. I carry it not so far, Sir; we have a gracious Prince, and my Lords the bishops find it so by this prosecution. But what says that case? It is printed in three books, in Noy 100, in Moor 375, and in Mr. Just. Cro. 371, says that case: the King may make orders and constitutions in matters ecclesiastical.
Mr. Justice Powell. But how will you apply that case to this in hand, Mr. Solicitor?
Mr. Solicitor General. I will apply it by and by, Sir. I would first show what it is; there is a convention of the greatest men in the Kingdom.
Mr. Justice Powell. Indeed, Mr. Solicitor, you shoot at rovers.
Mr. Solicitor General. There is the Lord Privy Seal, the Archbishop of Canterbury, and a grat many others; it is the greatest assembly we meet with in our books, and all of them are of this opinion: that the King may make orders and constitutions in matters ecclesiastical.
My Lord, there is another authority, and that is, from the statute 1 Eliz. which erected the High Commission Court, and that statute was not introductory of a new law, but declaratory of the old law. The King by his proclamation declares his sense to do such and such a thing; the Court, and all persons there, give their judgement and opinion upon that statute, that they looked upon it as the grossest thing, and the foulest affront to the Prince, for any man to bring into question that power of the King in matters ecclesiastical; it is said to be a very high crime. Why then, my Lord, what is done in this case?
Mr. Justice Powell. Mr. Solicitor, pray, when you are applying, apply that other part of the case too, which says that it was a heinous offence to raise a rumour that the King did intend to grant a general toleration; and is there any law since that has changed it, Mr. Solicitor?
Mr. Solicitor General. In the main, judgement goes another way; as for that part, it was personal to the Prince that then was, of whom they had scandalously reported, that he intended to do such a thing; they looked upon it as a scandal to King James, that it was a sowing sedition, and stirrying people against the Government, and that will come up to our case; for as some men do it on the right side, others do it on the left; and whoever he be that endeavours to bring a dislike of the King in the people, that is moving sedition against the Prince, but that is personal to the Prince himself, and does not go to his successors.
Now, my lord, I come to that which is very plain from the case of De Libellis Famosis, in Lord Coke's Reports: if any person have slandered the government in writing, you are not to examine the truth of that fact in such writing, but the slander which it imports to the king or government; and be it never so true, yet if slanderous to the king or the government, it is a libel, and to be punished: in that case, the right or wrong is not to be examined, or if what was done by the government be legal or no; but whether the party have done such an act. If the king have a power (for still I keep to that) to issue forth proclamations to his subjects, and to make orders and constitutions in matters ecclesiastical, if he do issue forth his proclamation, and make an order upon the matters within his power and prerogative; and if any one would come and bring that power in question otherwise than in parliament, that the matter of that proclamation be not legal, I say that is sedition, and you are not to examine the legality or illegality of the order or proclamation, but the slander and reflexion upon the government, and that, I think, is very plain upon that case, in the fifth Report De Libellis Famosis: for it says, If a person do a thing that is libellous, you shall not examine the fact, but the consequence of it; whether it tended to stir up sedition against the public, or to stir up strife between man and man, in the case of private persons: as if a man should say of a judge, he has taken a bribe, and I will prove it; this is not to be sent in a letter, but they must take a regular way to prosecute it according to law.
If it be so in the case of an inferior magistrate, what must it be in the case of a king? To come to the king's face, and tell him, as they do here, that he has acted illegally, doth certainly sufficiently prove the matter to be libellous. What do they say to the king? They say and admit, that they have an averseness for the declaration, and they tell him from whence that averseness doth proceed: and yet they insinuate that they had an inclination to gratify the king, and embrace the dissenters, that they were averse to them as could be, with due tenderness, when it should be settled by parliament and convocation. Pray what hath their convocation to do in this matter?
Lord Chief Justice. Mr. Solicitor-General, I will not interrupt you; but pray come to the business before us. Shew us that this is in diminution of the king's prerogative, or that the king ever had such a prerogative.
Solicitor-General. I will, my lord, I am observing what it is they say in this petition - They tell the king it is inconsistent with their honour, prudence and conscience, to do what he would have them to do: And if these things be not reflective upon the king and government, I know not what is. This is not in a way of judicature; possibly it might have been allowed to petition the king to put it into a course of justice, whereby it may be tried; but alas! there is no such thing in this matter.
It is not their desire to put it into any method for trial, and so it comes in the case de Libellis Famosis; for by this way they make themselves judges, which no man by law is permitted to do. My lords the bishops have gone out of the way, and all that they have offered does not come home to justify them; and therefore I take it, under favour, that we have made it a good case for the king: We have proved what they have done, and whether this be warrantable or not, is the question, gentlemen, that you are to try. The whole case appears upon record; the declaration and petition are set forth, and the order of the king and council. When the verdict is brought in, they may move anything what they please in arrest of judgment. They have had a great deal of latitude, and taken a great deal of liberty; but truly, I apprehend, not so very pertinently. But I hope we have a very good case of it for the king, and that you, gentlemen, will give us a verdict.
Justice Holloway. Mr. Solicitor, there is one thing I would fain be satisfied in: You say the bishops have no power to petition the king.
Solicitor-General. Not out of parliament, Sir.
Justice Holloway. Pray give me leave, Sir: Then the king having made such a declaration of a general toleration and liberty of conscience, and afterwards he comes and requires the bishops to disperse this declaration; this, they say, out of a tenderness of conscience, they cannot do, because they apprehend it is contrary to law, and contrary to their function: What can they do, if they may not petition?
Solicitor-General. I'll tell you what they should have done, Sir. If they were commanded to do anything against their consciences, they should have acquiesced till the meeting of the parliament. [At which some people in the court hissed.]
Mr. Attorney General. This is very fine, indeed; I hope the Court, and the Jury, will take notice of this carriage.
Mr. Solicitor General. My Lord, it is one thing for a man to submit to his prince, if the King lay a command upon him that he cannot obey, and another thing to affront him. If the King will impose upon a man what he cannot do, he must acquiesce; but shall he come and fly in the face of his prince? shall he say it is illegal? And that the prince acts against prudence, honour, or conscience? And throw dirt in the King's face? Sure that is not to be permitted; that is libelling with a witness.
Lord Chief Justice. Truly, Mr. Solicitor, I am of opinion that the bishops might petition the King, but this is not the right way of bringing it; I am not of that mind that they cannot petition the King out of Parliament, but if they may petition, yet they ought to have done it after another manner. For if they may in this reflective way petition the King, I am sure it will make the Government very precarious.
Mr. Justice Powel. Mr. Solicitor, it would have been too late to stay for a Parliament, for it was to have been distributed by such a time.
Mr. Solicitor General. They might have lain under it, and submitted.
Mr. Justice Powel. No, they would have run into contempt of the King's command, without petitioning the King not to insist upon it; and if they had petitioned, and not have shown the reason why they could not obey, it would have been looked upon as a piece of sullenness, and that they would have been blamed for, as much on the other side.
Mr. Serjeant Baldock. After so long a debate I shall not trouble you long, most things that are to be said have been said, but I shall only say this in short: I cannot deny, nor shall not, but that the subject has a right to petition, but I shall affirm it also, he has a duty to obey; and, that in this case, the power of the King to dispense with penal laws in matters ecclesiastical is not a thing that is now in question, nor need we here have had these long debates on both sides. It may be perceived plainly by the proofs that have been read that the King and princes have thought themselves that they had such a power, though, it may be, the Parliament thought they had not; and therefore the declarations of the one or the other, I shall not meddle with in this case. That power itself which the King has, as King of this realm, in matters rather ecclesiastical and criminal than matters of property, may somewhat appar by what has been read before your Lordship; but all this will be nothing in our case, neither has His Majesty now depended so much upon this thing; the declaration has been read to you; and what's there said? The King there says, That for those reasons he was ready to suspend those laws. And be they suspended? Yet, my Lord, with this too, that he refers it to, and hopes to make it secure by a Parliament. So that there being this, it has not gone, I think very far; and, it is not having been touched here, it is not a point of duty in my Lords the bishops, as bishops, that is here inquired into; whether they should have meddled with this, or no, in this matter, is the question. That the King is supreme over all of us, and has a particular supremacy over them, as supreme ordinary, and governor, and moderator of the Church, is very plain; and, my Lord, it is as plain that in such things as concern the Church, he has a particular power to command them; this is not unknown, but very frequent common in matters ecclesiastical, and matters of state. It is not here a question now, whether these declarations which they were commanded to take care of getting read were legal or not legal; what prudence there was, what honour there was, what consceince there was, for their not reading it, is not the question neither. But the point was, the King as Supreme Ordinary of his Kingdom, to whom the bishops are subject, does in Council order. And what is it he orders? Their sending out and distributing his declaration; they were concerned in no more than that, and it had been a very petty thing, a small thing, to send out the King's declaration to be read by the clergy. All the clergy were ordered to read it, but my Lords the bishops were only commanded to distribute it; this he might do by virtue of his power ecclesiastical. And if this be not an evil in itself, and if it be not against the Word of God, certainly obedience was due from my Lords the bishops; active obedience was due from them to do so much as this; it was no consent of theirs, it was no approbation of theirs, of what they read, that was required. So that if they had read it, or another had read it, by the King's order, especially if that order be legal, they are bound to do it by virtue of their obedience, and not to examine more.
And, my Lord, in this petition, here they come to relieve, not only themselves that were present (for I speak of the preamble, as others before me have spoken to the conclusion), but they do involve the rest of the bishops that were absent; for it is in behalf of themselves and their brethren and all the clergy of the Province. Now that all these should join in the petition is a thing very uncertain; how does it construe here, whether they were altogether and consented to it, or how all their minds could be so fully known, that they would be all involved in the disobedience to this order of the King, Then, my Lord, what is the thing they are greatly averse to? There are two things required in the order: the bishops required to distribute the declaration to the inferior clergy, and the inferior clergy are required to read it. Then their averseness must be to distribute it, and the others to read it, and so they will be involved; none of whom did ever appear to have joined in it. And then they give reasons for their averseness; and it is true, reasons might have been given, and good reasons should be given, why they would not do this in duty to His Majesty; more gentle reasons, and other kind of reasons, than those that they have given.
Lord Chief Justice. Pray, Brother, will you come to the matter before us?
Mr. Serjeant Baldock. I have almost done, my Lord.
Mr. Justice Powel. The information is not for disobedience, Brother, but for a libel.
Mr. Serjeant Baldock. No, Sir, it is not for disobedience, but it is for 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 honour, 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?
Lord Chief Justice. I hope we shall have done by and by.
Mr. Recorder. If your Lordship doesn't think fit, I can sit down.
Lord Chief Justice. No, no, go on, Sir Bartholomew 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.
Lord Chief Justice. 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 it is 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 Majesty's other subjects have; nor will the privilege 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 Julian the Apostate, because he was a clergyman 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. Justice Holloway. Pray, good Mr. Recorder, don't compair the writing of a book to the making of a petition; for it is the birthright 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 London 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 judgement of it, but that it ought to have the same condemnation.
Mr. Justice Powel. Mr. Recorder, you will as soon bring the two poles together, as make this petition to agree with Johnson's book; they are no more alike than the most different things you can name.
Mr. Serjeant Trinder. My Lord, I have but one word.
Lord Chief Justice. 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. Serjeant 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 powere which His Majesty has exerted, in settting forth his Declaration, was illegal, and their arguments were hypocritical. 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 ---
Lord Chief Justice. That is quite out of the case, Brother.
Mr. Serjeant Trinder. I beg your Lordships 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 looked 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 Parliaments declarations, there was never a one, unless it be first in Richard II's time, that can properly be called a Parliament declaration; so that that of the seveal 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, beggin your Lordship's pardon for what I have said.
Lord Chief Justice. 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. It is not to be expected that I should repeat all the speeches or the particular facts, but I will put the jury in mind of the most material things, as well as my memory will give me leave; but I have been interrupted by so many long and learned speeches, and by the length of the evidence which has been brought in, in a very broken, unmethodical way, that I shall not be able to do so well as I would.
Gentlemen, thus stands the case: it is an information against my Lords the bishops, His Grace my Lord of Canterbury, and the other six noble lords; and it is for preferring, composing, making, and publishing, and causing to be publihsed, a seditious libel: the way that the information goes is special, and it sets forth, that the king was graciously pleased, by his royal power and prerogative, to set forth a declaration of indulgence for liberty of conscience, in the third year of his reign; and afterwards upon the 27th of April, in the fourth year he comes and makes another declaration; and afterwards in May, orders in council that this declaration should be published by my lords the bishops in their several dioceses; and after this was done, my lords the bishops come and present a petition to the king in which were contained the words which you have seen.
Now, gentlemen, the proofs that have been upon this, you will see what they are. The two declarations are proved by the clerks of the council, and they are brought here under the great seal; a question did arise, whether the prints were the same with the original declarations, and that is proved by Hills, or his man, that they were examined, and are the same; then the Order of Council was produced by Sir John Nicholas, and has likewise been read to you; then they come to prove the fact against the bishops, and first they fall to proving their hands; they begun indeed a great way off, and did not come so close to it as they afterwards did; for some of their hands they could hardly prove, but my Lord Archbishop's hand was only proved, and some others, but there might have been some question about that proof; but afterwards it came to be proved, that my Lords the bishops owned their hands, which, if they had produced at first, would have mad the cause something shorter than it was.
The next question that did arise was about the publishing of it, whether my Lords the bishops had published it, and it was insisted upon, that nobody could prove the delivery of it to the King; it was proved, the King gave it to the Council, and my Lords the bishops were called in, and there they acknowledged their hands; but nobody could prove how it came to the King's hands. Upon which, we were all of opinion, that it was not such a publishing as was within the information; and I was going to have directed you to find my lords the bishops not guilty. But it happened that, being interrupted in my directions by an honest, worthy, learned gentleman, the King's counsel took the advantage, and informing the Court that they had further evidence for the King, we stayed till my Lord President came, who told us how the bishops came to him to his office at Whitehall, and after they had told him their design, that they had a mind to petition the King, they asked him the method they were to take for it, and desired him to help them to the speech of the King. And he tells them he will acquaint the King with their desire, which he does; and the King giving leave, he comes down and tells the bishops that they might go and speak with the King when they would; and (says he) I have given direction that the door shall be opened for you as soon as you come. With that the two bishops went away, and said they would go and fetch their other brethren, and so they did bring the other four, but my Lord Archbishop was not there; and immediately when they came back, they went up into the chamber, and there a petition was delivered to the King. He cannot speak to that particular petition, because he did not read it, and that is all that he knew of the matter; only it was all done the same day, and that was before my Lords the bishops appeared at the Council.
Gentlemen, after this was proved, then the defendants came to their part; and these gentlemen that were of counsel for my lords, let themselves into their defence, by notable learned speeches, by telling you that my lords the bishops are guardians to the church, and geat peers of the realm, and were bound in conscience to take care of the church. They have read you a clause of a statute made in Queen Elizabeth's time, by which they say, my lords the bishops were under a curse, if they did not take care of that law. Then they show you some records: one in Richard II's time, which they could make little of, by reason their witness could not read it; but it was in short a liberty given to the King to dispense with the Statute of Provisors. Then they show you some journals of parliament; first in the year 1662, where the king had granted an indulgence, and the House of Commons declared it was not fit to be done, unless it were by act of parliament. And they read the King's speech, wherein he says he wished he had such a power, and so likewise that in 1672, which is all nothing but addresses, or orders of the house, or discourses, either the King's speech, or the subjects' addresses; but these are not declarations in Parliament that is insisted upon by the counsel for the King, that what is a declaration in Parliament is a law, and that must be by the King, Lords, and Commons; the other is but common discourse, but a vote of the House, or a signification of their opinion, and cannot be said to be a declaration in Parliament. Then they come to that in 1685, where the Commons take notice of something about the soldiers in the army that had not taken the Test, and make an address to the King about it: but in all these things (as far as I can observe) nothing can be gathered out of them one way or the other; it is nothing but discourses. Sometimes this dispensing power has been allowed, as in Richard the 2nd's time, and sometimes it has been denied, and the king did once waive it; Mr. Solicitor tells you the reason, there was a lump of money in the case; but I wonder indeed to hear it come from him.
Solicitor-General. My lord, I never gave my vote for money, I assure you.
Lord Chief Justice. But those concessions which the king sometimes makes for the good of the people, and sometimes for the profit of the prince himself (but I would not be thought to distinguish between the profit of the prince and the good of the people, for they are both one; and what is the profit of the prince is always for the good of the people), but I say, those concessions must not be made law, for that is reserved in the king's breast, to do what he pleases in it at any time.
The truth of it is, the dispensing power is out of the case, it is only a word used in the petition; but truly, I will not take upon me to give my opinion in the question, to determine that now, for it is not before me: the only question before me is, and so it is before you, gentlemen, it being a question of fact, whether here be a certain proof of publication? And then the next question is a question of law indeed, whether, if there be a publication proved, it be a libel?
Gentlemen, upon the point of the publication, I have summed up all the evidence to you; and if you believe that the petition which these lords presented to the king was this petition, truly, I think, that is a publication sufficient: if you do not believe it was this petition, then my lords the bishops are not guilty of what is laid to their charge in this information, and consequently there needs no inquiry whether they are guilty of a libel? but if you do believe that this was the petition they presented to the king, then we must come to inquire whether this be a libel.
Now, gentlemen, any thing that shall disturb the government, or make mischief and a stir among the people, is certainly within the case of "Libellis Famosis"; and I must in short give you my opinion, I do take it to be a libel. Now, this being a point of law, if my brothers have anything to say to it, I suppose they will deliver their opinions.
Justice Holloway. Look you, gentlemen, it is not usual for any person to say anything after the Chief Justice has summed up the evidence; it is not according to the course of the court: but this is a case of an extraordinary nature, and there being a point of law in it, it is very fit that everybody should deliver their own opinion. The question is, Whether this petition of my lords the bishops be a libel or no. Gentlemen, the end and intention of every action is to be considered; and likewise, in this case, we are to consider the nature of the offence that these noble persons are charged with; it is for delivering a petition, which, according as they have made their defence, was with all the humility and decency that could be: so that if there was no ill intent, and they were not (as it is not, nor can be pretended they were) men of evil lives, or the like, to deliver a petition cannot be a fault, it being the right of every subject to petition. If you are satisfied there was an ill intention of sedition, or the like, you ought to find them guilty: but if there be nothing in the case that you find, but only that they did deliver a petition to save themselves harmless, and to free themselves from blame, by shewing the reason of their disobedience to the king's command, which they apprehended to be a grievance to them, and which they could not in conscience give obedience to, I cannot think it is a libel: it is left to you, gentlemen, but that is my opinion.
Lord Chief Justice. Look you, by the way, brother, I did not ask you to sum up the evidence (for that is not usual) but only to deliver your opinion, whether it be a libel or no.
Justice Powell. Truly I cannot see, for my part, any thing of sedition, or any other crime, fixed upon these reverend fathers, my lords the bishops.
For, gentlemen, to make it a libel, it must be false, it must be malicious, and it must tend to sedition. As to the falsehood, I see nothing that is offered by the king's counsel, nor any thing as to the malice: It was presented with all the humility and decency that became the king's subjects to approach their prince with.
Now, gentlemen, the matter of it is before you; you are to consider of it, and it is worth your consideration. They tell His Majesty, it is not out of averseness to pay all due obedience to the king, nor out of a want of tenderness to their dissenting fellow subjects, that made them not perform the command imposed upon them; but they say, because they do conceive that the thing that was commanded them was against the law of the land, therefore they do desire His Majesty, that he would be pleased to forbear to insist upon it, that they should perform that which they take to be illegal.
Gentlemen, we must consider what they say is illegal in it. They say, they apprehend the declaration is illegal, because it is founded upon a dispensing power, which the king claims, to dispense with the laws concerning ecclesiastical affairs.
Gentlemen, I do not remember, in any case in all our law (and I have taken some pains upon this occasion to look into it), that there is any such power in the king, and the case must turn upon that. In short, if there be no such dispensing power in the king, then that can be no libel which they presented to the king, which says, that the declaration, being founded upon such a pretended power, is illegal.
Now, gentlemen, this is a dispensation with a witness: it amounts to an abrogation and utter repeal of all the laws; for I can see no difference, nor know of none in law, between the king's power to dispense with laws ecclesiastical, and his power to dispense with any other laws whatever. If this be once allowed of, there will need no parliament; all the legislature will be in the king, which is a thing worth considering, and I leave the issue to God and your consciences.
Justice Allybone. The single question that falls to my share is, to give my sense of this petition, whether it shall be in construction of law a libel in itself, or a thing of great innocence. I shall endeavour to express myself in as plain terms as I can, and as much as I can, by way or proposition.
And I think, in the first place, that no man can take upon him to write against exercise of the government, unless he have leave from the government, but he makes a libel, be what he writes true or false; for if once we come to impeach the government by way of argument, it is the argument that makes it the government or not the government. So that I lay down that, in the first place, the government ought not to be impeached by argument, nor the exercise of the government shaken by argument; because I can manage a proposition in itself doubtful, with a better pen than another man: this, say I, is a libel.
Then I lay down this for my next position, that no private man can take upon him to write concerning the government at all; for what has any private man to do with the government, if his interest be not stirred or shaken? It is the business of the government to manage matters relating to the government; it is the business of subjects to mind only their own properties and interests. If my interest is not shaken, what have I to do with matters of government? They are not within my sphere. If the government does come to shake my particular interst, the law is open for me, and I may redress myself by law: and when I intrude myself into other men's business that does not concern my particular interest, I am a libeller.
These I have laid down for plain proposition; now then, let us consider further, whether, if I will take upon me to contradict the government, any specious pretence that I shall put upon it shall dress it up in another form, and give it a better denomination? And truly I think it is the worse, because it comes in a better dress; for by that rule, every man that can put on a good vizard, may be as mischievous as he will to the government at the bottom: so that whether it be in the form of a supplication, or an address, or a petition, if it be what it ought not to be, let us call it by its true name, and give it its right denomination - it is a libel.
Then, gentlemen, consider what this petition is: this is a petition relating to something that was done and ordered by the government. Whether the reasons of the petition be true or false, I will not examine that now, nor will I examine the prerogative of the crown, but only take notice that this relates to the act of the government. The government here has published such a declaration as this that has been read, relating to matters of government; and shall, or ought anybody to come and impeach that as illegal, which the government has done? Truly, in my opinion, I do not think he should, or ought: for by this rule may every act of the government be shaken, when there is not a parliament de facto sitting.
I do agree, that every man may petition the government, or the king, in a matter that relates to his own private interest, but to meddle with a matter that relates to the government, I do not think my lords the bishops had any power to do more than any others. When the house of lords and commons are in being, it is a proper way of applying to the king: there is all that openness in the world for those that are members of parliament, to make what addresses they please to the government, for the rectifying, altering, regulating, and making of what law they please; but if every private man shall come and interpose his advice, I think there can never be an end of advising the government. I think there was an instance of this in King James' time, when by a solemn resolution it was declared to be a high misdemeanour, and next to treason, [to petition] the king to put the penal laws in execution.
Justice Powell. Brother, I think you do mistake a little.
Justice Allybone. Brother, I dare rely upon it that I am right: it was so declared by all the judges.
Solicitor-General. The Puritans presented a petition to that purpose, and in it they said, if it would not be granted, they would come with a great number.
Justice Powell. Aye, there it is.
Justice Allybone. I tell you, Mr. Solicitor, the resolution of the judges is, That such a petition is next door to treason, a very great misdemeanour.
Justice Powell. They accompanying it with threats of the people's being discontented.
Justice Allybone. As I remember, it is in the second part of the Folio 35, or 37, where the resolution of the judges is, That to frame a petition to the king, to put the penal laws in execution, is next to treason; for, say they, no man ought to intermeddle with matters of government without leave of the government.
Serjeant Pemberton. That was a petition against the penal laws.
Justice Allybone. Then I am quite mistaken indeed, in case it be so.
Serjeant Trinder. That is not material at all which it was.
Mr. Pollexfen. They there threatened, unless their request were granted, several thousands of the king's subjects would be discontented.
Justice Powell. That is the reason of that judgment, I affirm it.
Justice Allybone. But then I'll tell you, brother, again, what is said in that case that you hinted at, and put Mr. Solicitor in mind of; for any man to raise a report that the king will or will not permit a toleration, if either of these be disagreeable to the people, whether he may or may not, it is against law; for we are not to measure things from any truth they have in themselves, but from that aspect they have upon the government; for there may be every tittle of a libel true, and yet it may be a libel still: so that I put no stress upon that objection, that the matter of it is not false; and for sedition, it is that which every libel carries in itself; and as every trespass implies vi et armis, so every libel against the government carries in it sedition, and all the other epithets that are in the information. This is my opinion as to the law in general. I will not debate the prerogatives of the king, nor the privileges of the subject; but as this fact is, I think these venerable bishops did meddle with that which did not belong to them: they took upon them in a petitionary, to contradict the actual exercise of the government, which I think no particular persons, or singular body, may do.
[Verdict of the jury: Not Guilty, June 30, 1688.]
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