The Account of the manner of executing a writ of inquiry of damages between His Royal Highness James Duke of York &c. and Titus O[a]tes which was executed at the bar of the Court of Kings Bench at Westminster on Wednesday the 19th of June, 1684 in the presence of the high sheriff of Middlesex.

THE ACCOUNT Of the manner of EXECUTING A Writ of Inquiry OF DAMAGES: BETWEEN HIS ROYAL HIGHNESS JAMES Duke of York, &c. AND TITVS OTES. Die Mercurii 18. Junii, An. Dom. 1684. B. R. Dux Ebor. versus Otes.

HIS Royal Highness the Duke of York having brought an Action against Titus Otes, ground∣ed upon the Statute de Scandalis Magnatum, for very Slanderous and Opprobrious Words, the Defendant suffered Judgment to go against him by default, and thereupon a Writ of Inquiry was taken out, directed to the Sheriff of the County of

Middlesex to enquire by a Jury of that County, what Damages the Plaintiff had susteined hereby, and upon a Motion made at the Court of Kings Bench, a day was given to the Defendant to shew cause why that Writ of Inquiry should not be executed at the Bar of that Court, which he not doing, it was ordered that it should be executed at the Bar on this day, and that the High Sheriff should appear and attend the execution of the Writ in person. Accordingly this day Sir Peter Daniel Knight, and Samuel Dashwood, Esquire, the present Sheriff of the County of Middlesex, came into this Court, and being placed at the Table at the Judges feet, were during the Execution of the Writ, covered. Mr. Tho. Rous the present Undersheriff managed it, and proceeded in this manner.

Mr. Undersheriff.

Cryer, call Sr. Charles Lee.

Cryer.

Vous avez Sr. Charles Lee.

Who was sworn thus,

Mr. Undersheriff.

You shall well and truly enquire of Da∣mages between the most illustrious Prince JAMES Duke of York and Albany Plaintiff, and Titus Otes De∣fendant, and therein a true Verdict give according to your Evidence. So help you God.

The rest were sworn thus,

Mr. Undersheriff.

Sir William Hill, Sir Richard Downton, and Sir John Berry; the same Oath your Foreman hath for his part taken, you and every of you for your parts shall well and truly keep. So help you God.

Mr. Undersheriff.

Thomas Harriott, Thomas Row, and Walter Brydall; the same Oath, &c. Edward Guise, Thomas Done, and William Wood; the same Oath, &c, John Sharp, and Nehemiah Arnold; the same Oath, &c.

Will you please to have any more than twelve sworn?

L. C. J.

How many do you use to have? Pray swear an odd Number as you used to do.

Mr. Undersheriff.

Then I will swear three more, and that will be just fifteen.

Francis Stephens, Nicolas Bagster, and John Kirk. The same Oath, &c.

The Names of them that were upon the Inquiry.

• Sir Charles Lee, Knight.
• Sir William Hill, Knight.
• Sir Richard Downton, Knight.
• Sir John Berry, Knight.
• Thomas Harryot, Esquire.
• Thomas Rowe, Esquire.
• Walter Brydal, Esquire,
• Edward Guise, Esquire.
• Thomas Done, Esquire.
• William Wood, Esquire.
• John Sharpe, Esquire.
• Nehemiah Arnold, Esquire.
• Francis Stevens, Esquire.
• Nicolas Baxter, Esquire.
• John Kirke, Gentleman.

Mr. Undersheriff.

Gentlemen you that are sworn hear the Kings Writ.

L. C. J.

Ay, road it to them.

Mr. Undersheriff.

CHARLES the Second by the Grace of God, of England, Scotland, France and Ireland King, Defen∣der of the Faith, &c. to the Sheriff of Middlesex Greeting; Whereas the most Illustrious Prince JAMES Duke of York and Albany, one of the Nobles and Peers of England, our most dear and only Brother, who as well &c. lately in our Court before Us at Westminster by Bill with∣out our Writ impleaded Titus Otes, then in the Cu∣stody of the Marshal of our Marshalsea, before us be∣ing: For that whereas in a Statute made in the Par∣liament of Richard the Second, late King of England

after the Conquest, held at Gloucester in the Second Year of his Reign, amongst other things. It is ordained and strictly prohibited, that from thence none should be so hardy to devise, tell or relate of the Prelates, Dukes, Earls, Barons and other Nobles and great Men of England, nor of the Chancellor, Treasurer, or Clerk of the Privy Seal, Steward of the King's Houshold, Justices of the one or of the other Bench, nor of other great Officers of the Kingdom aforesaid, any false News, Lyes, or any such false things, whereby Scandal or Discord within the said Kingdom might arise; and whoso∣ever should do this, should incur and have the Penalty otherwise thereon ordained by the Statute of Westminster the first, as in the Statute aforesaid is more fully con∣tained. And whereas the fourth day of December in the Five and Thirtieth Year of our Reign, and long before the yearly Rents, Issues and Profits arising, or due and payable for or by reason of the General Post Office with∣in this Kingdom of Emgland, for the carriage of Letters, before were erected and yet are established upon the said most Ilustrious Prince JAMES Duke of York and Albany. The aforesaid Titus Otes the Statute afore∣said not considering, but the good Name, State, Credit, Dignity, and Honour of the said JAMES Duke of York and Albany, our Brother, devising and malitiously in∣tending to hurt and detract and Him the said JAMES Duke of York and Albany, our Brother, into the great dis∣pleasure and hatred of Us and of the Peers of this King∣dom of England, and also divers other venerable Persons our Subjects, to bring out his meer Malice and Envy had and forethought the aforesaid fourth day of December, in the Year of our Reign the five and Thirtieth, at the Parish of S. Martin in the Fields in the County of Middlesex afore∣said, upon a certain discourse then had aed moved by and between the aforesaid Titus Otes and divers of our Leige People, of and concerning the aforesaid JAMES Duke of York and Albany, our Brother, and of and concerning a certain Letter in the hand of the aforesaid Titus Otes at that time, being divers false News and horrible Lyes of the aforesaid JAMES Duke of York and Albany, our

Brother at that time, and yet being of the Peers and Nobles of this Kingdom, in the presence and hearing of divers venerable Persons, publickly, falsly, ma∣liciously, and scandalously said and related, and with a loud voice published in these English words following, viz. This Letter (the Letter aforesaid, so in the hands of the afore-said Titus Otes as is beforesaid being, mean∣ing) cost me (the said Titus Otes meaning) ninepence, and might have been brought for a peny, I (himself the a∣foresaid Titus Otes meaning) know no body is the better for it, but that Traitor JAMES Duke of York (the afore∣said JAMES Duke of York and Albany our only Bro∣ther meaning) And the aforesaid Titus further devising and maliciously intending the aforesaid JAMES Duke of York and Albany our Brother into the hatred of us, and of the Peers of this Kingdom of England, and also of divers other venerable Persons, and our Sub∣jects to bring; out of his meer malice and envy, had and forethought, the fourth day of December the year abovesaid, at the Parish of S. Martin in the Fields a∣foresaid, in the County of Middlesex aforesaid, upon a certain other discourse then had and moved by and between the aforesaid Titus Otes and several of our Liege People, of and concerning the aforesaid JAMES Duke of York and Albany, our Brother, and of and concerning a certain Letter in the hands of the afore∣said Titus Otes at that time being, divers other false News and horrible Lies of the aforesaid JAMES Duke of York and Albany, our Brother at that time, and yet being one of the Nobles and Peers of this Kingdom of England, and our only Brother, in the presence and hearing of several venerable Persons, pub∣lickly, falsly, maliciously and scandalously said, related and with a loud voice published, viz. This Letter (the aforesaid Letter so in the hands of the aforesaid Titus Otes, as is before said being meaning) cost me (the a∣foresaid Titus Otes meaning) nine pence, and might have been afforded for a Penny, I (himself the aforesaid Titus Otes meaning) know no body is the better for it, but that

Traitor JAMES Duke of York (the aforesaid JAMES Duke of York our only Brother meaning) And after∣wards, to wit, the fifth day of December in the thirty fifth Year abovesaid; the aforesaid Titus Otes further devising and maliciously intending the said JAMES Duke of York and Albany our Brother to scandalize, and into the further displeasure and hatred of us, and of the Great Men of this Kingdom of England, out of his meer malice and envy, had and forethought, at the Parish of S. Martin in the Fields aforesaid, in the County of Middlesex aforesaid, the said fifth day of December, in the Year abovesaid, upon certain other Discourse of the said JAMES Duke of York and Albany, divers false News and horrible Lyes of the a∣foresaid JAMES Duke of York and Albany, publick∣ly, falsly, and maliciously said, related, and with a loud voice published, to wit, that the Letter in the hands of the aforesaid Titus at that time being, cost him the aforesaid Titus nine pence, but might have been brought for one penny, and that he knew no body to be the better for it but that Traitor JAMES Duke of York. And the aforesaid Titus Otes further contriving and maliciously intending the aforesaid JAMES Duke of York and Albany, our only Brother, into the further displeasure and hatred of us, and of the Great Men of this Kingdom of England, and al∣so of divers other venerable Persons, and our Sub∣jects, to bring out of his meer malice and envy, had and forethought the sixth day of December, in the five and Thirtieth Year above said, at the Parish of S. Martin in the Fields aforesaid, in the County of Middlesex a∣foresaid, upon a certain discourse at that time had and moved by and between the aforesaid Titus Otes and se∣veral of our leige People, of and concerning the a∣foresaid JAMES Duke of York and Albany, our Bro∣ther, divers other false News and horrible Lyes of the aforesaid JAMES Duke our only Brother, at that time, and yet being one of the Nobles and Peers of this Kingdom of England, in the presence and hear∣ing

of divers venerable Persons, publickly, falsly, ma∣liciously and scandalously said, related, and with a loud voice published in these english words follow∣ing, to wit, The Duke of York (the aforesaid JAMES Duke of York and Albany our only Brother meaning) is a Traitor. And the aforesaid Titus Otes further con∣triving, and maliciously intending the said JAMES Duke of York our Brother, into the hatred of us, and of the great Men of this Kingdom of England, and also of divers other venerable Persons, and our Sub∣jects, to bring out of his meer malice and envy, had and forethought the aforesaid Sixth day of December the Year abovesaid, at the Parish of S. Martin in the Fields, in the County of Middlesex aforesaid, upon cer∣tain other discourse at that time had and moved by and between the aforesaid Titus Otes and divers of our liege People, of and concerning the aforesaid JAMES Duke of York and Albany our only Brother, divers other false News and horrible Lyes of the afore∣said JAMES Duke of York and Albany our only Bro∣ther, and at that time and yet being one of the Nobles and Peers of this Kingdom of England, in the presence and hearing of divers venerable Persons, publickly, falsly, and maliciously said, related, and with a loud voice published; to wit, That the said Duke of York was a Traitor. By reason whereof the said JAMES Duke of York and Albany our only Brother, in his Re∣putation, Honor and Dignity is very much hurt and scandalized. And the said JAMES Duke of York and Albany, the Grace, good Opinion and Esteem which we and others the great Men of this Kingdom of En∣gland before towards him JAMES Duke of York and Albany did bear, utterly lost, and divers Rumors and Scandals between very many Nobles and Peers of this Kingdom of England, and other our Subjects, by the occasions aforesaid, within this Kingdom of En∣gland, are arisen and divulged, and great Scandals and Discords by occasion of the Premises between him the aforesaid JAMES Duke of York and Albany, and

divers Nobles and great Men, and other Subjects of this Kingdom of England are arisen; and daily more and more in the like may arise, to the great distur∣bance of the Peace and publick Tranquillity of this Kingdom of England, and in contempt of us and our Government of this Kingdom of England, and to the great Scandal and Grievance of him JAMES Duke of York and Albany, to the Damage of him the said JAMES Duke of York and Albany, our most dear Bro∣ther, a hundred Thousand pounds: As he then said, and thereupon in our Court before us it was so proceeded, That the aforesaid JAMES Duke of York and Albany our only Brother his damages against the said Titus Otes by occasion of the Premisses ought to recover: but because it is not known to our Court before us, what damages the aforesaid JAMES Duke of York and Albany our Brother hath susteined, as well by oc∣casion of the Premisses, as for his costs and charges by him about his Suit in this behalf expended. There∣fore We command you, that by the Oaths of good and lawful Men of your Bailiwick, you diligently en∣quire what Damages the aforesaid JAMES Duke of York and Albany hath susteined, as well by occasion of the Premisses, as for his costs and charges, by him about his Suit in this behalf expended, and the Inqui∣sition which thereupon you shall take, you shall have before Us at Westminster on Wednesday next after three Weeks of the Holy Trinity, under your Seal and the Seals of them by whose Oath you take that Inquisition, distinctly and openly you send, and this Writ. Teste Sr. George Jefferys, Knight and Baronet, at Westminster the Thirtieth day of May, in the Year of our Reign the Six and Thirtieth. Ri. Swift. Henley.

You are to enquire what Damages his ROYAL HIGHNESS the Plaintiff has sustain'd, by means of the Premisses; As also, what Costs he has been at in this Suit.

Mr. Hanses.

May it please your Lordship, you Mr. Sheriffs, and Gentlemen of the Jury, His Royal High∣ness the Duke of YORK is Plaintiff, and Litus Otes is the Defendant; And this is in an Action of Trespass and Contempt, grounded upon the Statute of SCANDALUM MAGNATUM, wherein his Royal Highness sets forth, That whereas such a Statute was made, prohibiting the Slandering the Great Men and Peers of the Kingdom, and the Plaintiff being the KING's Onely Brother, and a Peer, the Defendant upon a Discourse between him the Defendant and some other Persons, about a Letter that the Defendant had then in his Hands, Publickly, Falsly, and with an intent to scandalize the Plaintiff, spoke these English words:

This Letter (meaning the Letter then in the Defendant's Hands) cost Me (meaning the Defendant) Nine-pence, and might have been brought for a Penny; I (meaning the Defen∣dant) know no Body is the better for it, but that Traytor JAMES Duke of YORK, meaning the Plaintiff.

Gentlemen, This is not all, the Declaration goes on further, and says, That the Defendant intending further to scandalize the Plaintiff, the Sixth of December in the Thirty fifth Year of this King, upon a Discourse had and moved by and between him the Defendant and some other Persons, in the presence of divers venerable Per∣sons, said these words of the Plaintiff:

The Duke of YORK (meaning the Plaintiff) is a Traytor; And this is laid to the Plaintiff's damage of One hundred thousand Pounds: The Defendant has not pleaded, and the Plaintiff has signed his Judgment; and now you, Gentle∣men, are to enquire of the Damages.

Mr. Att. Gen.

You observe, Gentlemen, the Words are acknowledged by the Defendant's default, and not pleading; so that they were spoken, is owned by him, and you are to enquire only of the Damages: And, I think, there will need nothing to be said for the Aggrava∣tion of them, they are Words of the highest Nature, in re∣spect of Slander and Scandal, that can be spoken or thought of, Accusing Him of Treason. We shall only call you some Witnesses to prove this way of Discourse to be his constant habit in all places, and among all persons and Company, inveighing against the Government, and particularly against his Royal Highness the Plaintiff; and then you will, I know, give such Damages, as may be fit to repair the Plaintiff's Honour.

Mr. Sol. Gen.

We will call some Witnesses, to give you an Account how he uses to treat the Plaintiff in all Companies, and we shall begin with Mr. Smith. And the truth is, the proving of the Words, will demonstrate the Malice of them; and the Manner and Circumstances of speaking, will make them appear to be such, as need no∣thing to be said for their Aggravation at all: Swear Mr. James Smith.

Mr. Under∣Sheriff.

The Evidence that you shall give to the Sheriffs and the Jury sworn about the Matter in Question, shall be the Truth, the whole Truth, and nothing but the Truth.

Mr. Sol. Gen.

Mr. Smith, pray will you tell the Court and the Jury, what you have heard the Defendant Otes say of his Royal Highness.

Mr. Smith.

At the last Westminster Parliament, as I was sitting in a Coffee-house, I saw Mr. Otes, he had a Letter in his hand, and he said, This Letter cost me Nine-pence, it might have been brought for a Penny; I know no Body that is the better for it but a Traytor, to the best of my remem∣brance he said, the Duke of York.

Mr. Att. Gen.

Swear Mr. Penniston Whaley

(which was done)

what Words did you hear Mr. Otes say of his Royal Highness?

Mr. Whaley.

The time was either the Easter or Whitson∣tide after Sir Thomas Gascoigne's Tryal.

Mr. Sol. Gen.

What were the Words you then heard him say?

Mr. Whaley.

It was at the Bishop of Ely's Table at Ely House. I had received the Sacrament at the Chappel there that day, and so had the Doctor too; it was upon Easter-day or Whitsunday, I suppose, because I never used to receive the Sacrament here in Town but one of those two times; and Dr. Otes and I were sitting there, and some Discourse hap∣pened about Sir Thomas Gascoigne's Tryal, and he fell very foul upon the Jury, and said, They were a Company of profli∣gate Villains (or some such expression as he was wont to use) and said, He would have them Attainted. Then said I to him, Doctor, you are a good Man at a matter of Fact, but, I doubt, you are not so at a matter of Law. Upon that, we came to some high Words about that and other things, and, among the rest of the Discourse, he said, The Duke of YORK was a Traytor. Upon that, I said to him, Doctor, you lie under a great Error in that, I suppose, by mistaking a Statute made against Popery; says he, No mat∣ter for that, I say he is a Traytor. Then there were some other Discourses happened afterwards, and I began to re∣ply, and growing both of us pretty warm, the Doctor cal∣led to his two Men, his Mirmydons, that used to be always with him, and follow him up and down: said I to him, Nay, Doctor, you need not call your Men to your As∣sistance, there is no Body here will hurt you: Do you think the Bishop of Ely's Table is not a Protection good enough for any Body that comes here?

Lord Chief Justice.

Where was this Sir, pray do you say.

Mr. Whaley.

At the Bishop of Ely's Table.

Lord Chief Justice.

Was the Bishop there then?

Mr. Whaley.

He was at the Table, but at a great di∣stance from us, the Doctor and I sate at the lower end of the Table. Afterwards I begg'd the Bishop of Ely's par∣don, for being so hot and loud at his Table; says the Bi∣shop to me, I thank you kindly for it, none of us dare talk with him.

Lord Chief Justice.

And this you say was at Dinner, af∣ter the Sacrament was over.

Mr. Whaley.

Yes, it was so.

Mr. North.

Then swear Edward Johnson

(which was done.)

Mr. Att. Gen.

Mr. Johnson, pray will you give the Court and Jury an account what Discourse you have heard from the Defendant, Mr. Otes, against the Plain∣tiff.

Mr. Johnson.

Upon the Three and twentieth of August, 1680. I met Dr. Otes, and said, Good morrow Doctor, all things will go well now—

Lord Chief Justice.

You mean him they call Dr. Otes, I suppose.

Mr. Johnson.

Yes, they used to call him so; said I, Good morrow Doctor, all things will go well now, for there is a Parliament to meet in a little time. No, said he, not till YORK is either Banished or Hanged; but of the two, Hanging is the fittest for him. Said I, do not talk so Doctor: Says he, I speak nothing but what is true; he has a good Bro∣ther, but he takes all the courses in the world to undo Him: And then the Doctor and my Lord Howard went away to∣gether.

Mr. Sol. Gen.

Swear Randall Bowring

(which was done.)

What have you heard Mr. Otes say of the Duke of YORK?

Mr. Bowring.

About the middle of October, 1679. there were several persons at Dinner with the Doctor.

Lord Chief Justice.

What Doctor, prithee?

Mr. Bowring.

Mr. Otes.

Lord Chief Justice.

Mr. Otes we know very well, but we do not so well know who this Doctor is.

Mr. Bowring.

They used to call him Doctor, or I should not have taken upon me to give him the Title.

Lord Chief Justice.

Well, go on: There were several persons at Dinner with him, and what then?

Mr. Bowring.

There happened some discourse concern∣ing his Royal Highness.

Lord Chief Justice.

Where was this?

Mr. Bowring.

At his Lodgings at Whitehall: And a Gentleman that was there, said, In case his Royal Highness were a Papist, how should we be secured that in case he come to the Succession of the Crown, he would not bring in Popery among us? Then the Doctor replied, I would not have you trouble your self about that, for he shall be hanged before that time.

Mr. Att. Gen.

What have you heard him say any where else, at Foster-lane, or any other place?

Mr. Bowring.

After the Sermon he had preached there at Foster-lane Church, the Church-wardens, and some of the Parish, invited him into the Vestry to drink a Glass of Wine.

Lord Chief Justice.

What? he made as if he would preach there?

Mr. Bowring.

He did preach there, and then the Church-wardens invited him to Dinner; but then he asked them, If ever any of them had dined with JAMES Duke of YORK at any of the Feasts of the City where the Duke used to come some∣times? To which they none of them answering a word, he replied, He would not dine with any Man that had eat with the Devil: And so would not go to dine with them, but went and dined at a private Brasiers by London-wall.

Lord Chief Justice.

An excellent Gospel-Preacher upon my word.

Mr. Att. Gen.

What Brasier was that?

Mr. Bowring.

Truly I do not well know his Name.

Mr. Att. Gen.

Where did he live?

Mr. Bowring.

By London-wall.

Mr. Sol. Gen.

Then swear Mr. Fairfax.

(Which was done.)

Pray, Sir, tell my Lord and the Jury, what Words you have heard this Man speak of his ROYAL HIGH∣NESS.

Mr. Fairfax.

May it please your Lordship, in August 1679. I happened to come into the Company of Otes the Defendant, upon the account of an Election that was to be of Parliament-men for Grinstead in Sussex, by the means of one Aukland; Otes was to go down thither in my Lord Wharton's Coach, and then we came first to be acquainted, and afterwards we frequently did eat together, and became very well acquainted. And in my Lord Scrogg's time, when he was Chief Justice, there was some Presentment intended to be brought in by the Grand Jury here at the Term, against his Royal Highness for being a Papist, and not coming to Church, and this Otes was the main Prosecu∣tor of it. He was used often to come up to me, and speak to me when he met me; and I was about that time walking in the Court that was built up here for the Tryal of the Lords in the Tower, it was after that Grand Jury were dismissed, which was done a day or two before they used to be dismist in the ordinary course, and walking there I met Otes, and said I to him, Doctor, Now you are Non∣suited, what will you do now? Oh says he, we will do well enough; there will be a Sessions after the Term, and there we will at him again; and we will have no more regard for him, than if he were a Scavenger of Kent-street: And upon that he was called away from me, and he went away.

Mr. Sol. Gen.

Swear Mr. Philips.

(Which was done.)

Mr. Att. Gen.

Come, Mr. Philips, will you acquaint my Lord and the Jury, what you have heard Otes say of the Duke of YORK?

Mr. Philips.

In or about January (78.) may it please your Lordship, I was in the company of one Deacon at Otes's Lodgings at Whitehall, where Mr. Otes said, He hoped to see your or our Master JAMES (meaning the Duke of YORK his Royal Highness I suppose) at the Bar of the

House of Commons; and it would be no disparagement to him to appear there, for there were better men Members of that House than he was.

Lord Chief Justice.

Pray what was the occasion of this Discourse?

Mr. Philips.

Truly it was a Discourse of his own; he ran it on, we talked but little to him.

Lord Chief Justice.

Who did he apply himself to in that Discourse?

Mr. Philips.

To us two, Mr. Deacon and I.

Lord Chief Justice.

How came he to mention your Ma∣ster JAMES, had you any relation to the Service of his Royal Highness?

Mr. Philips.

No, my Lord, we had not; but he said either our Master, or your Master: he run on in such kind of Discourse as he used to do.

Lord Chief Justice.

But do you think he intended his Royal Highness, when he named your Master JAMES?

Mr. Philips.

I could not imagine he did mean any Body else.

Mr. Att. Gen.

Then swear William Ashlock.

(Which was done.)

Pray will you acquaint my Lord and the Jury, what words you have heard him speak of his ROYAL HIGH∣NESS.

Mr. Ashlock.

May it please your Lordship, in Easter Term, 1682. Dr. Otes.

Mr. Att. Gen.

Mr. Otes you mean.

Mr. Ashlock.

Mr. Otes went out one morning with Dol∣ben and Robin Nichols, two of his men, from his Lodgings at Whitehall, and while he was dressing, he said he went out in order to draw up a Bill of Indictment against the Duke of YORK; but he did not do it, because he was otherwise advised by some persons, as I heard. Then at Michaelmas, 1682. when he was going to dress him, I held the Bason to him to wash, as he commonly had two or three every day to wait upon him to dress him, there came

in a Gentleman that came newly out of Sussex, I cannot remember his Name: He asked him how all Friends did in Sussex, and then fell a talking about the Election of She∣riffs, and abusing them that were then chosen, and reflected very much upon Sir John Moor, and called him Rogue, and said he deserved to be hang'd up as an Example. And af∣terwards, he said the City of London was fired by the Duke of YORK's Order, and Sir Thomas Bludworth had a hand in it; and the Forces at Black-Heath were to have plunder'd the City, and killed all the honest Protestant Dissenters in London: And this he would prove▪ if ever they had a Par∣liament to their mind that should sit. At another time there was one Starkey, Henry Starkey that was concerned in Colledge's business at Oxford, and one Mr. Paschall, and, I think, Capt. Clare, and some others that used to keep him Company, and Mr. Otes step'd up on a sudden, and said, The Duke of YORK was a Son of a Whore, and he should live to see him hanged; and if they could but get a Parliament to their mind, they would soon send the Duke and all his Gang out of England, for he must never expect to succeed to the Crown.

Mr. Sol. Gen.

Pray who did he say was to head the For∣ces at Black-Heath that you talk of were to plunder the City?

Mr. Ashlock.

The Duke of YORK, and London was fired by his Order; and this he would prove, if they could but get a Parliament to their mind: And he said, They should take away the Post-Office from the Duke of YORK, and give it to the Duke of Monmouth.

Mr. Sol. Gen.

Then call Capt. Cresset, and swear him.

(Which was done.)

Mr. Att. Gen.

Capt. Cresset, Pray do you remember what Discourse you had with Otes, when the Duke went into Flanders, what he said of his Royal Highness?

Capt. Cresset.

It was the last time the Duke went into Scotland with her Royal Highness, I think it was in October 1680. I was commanded over Night to wait at the Duke's Lodgings, till a Paper should be delivered me by my Lord Rochester; I stay'd there till Twelve a Clock at Night, and not seeing my Lord come out, I went away, and came early the next Morning. And when the Duke and Dutchess went to take water at the Privy-Stairs, I came down through the Guard-Chamber, and Dr. Otes was in the Gallery that leads betwixt that and the Gate; when he saw me, I bid him, Good Morrow Doctor, or he bid me, Good Morrow; one of the two, I cannot exactly tell which: Says he to me, You will never leave, till you have lost your Repu∣tation. Why, what is the matter now, Doctor, said I, I hope my Reputation is not hung upon so slender a Thread, as to be lost for my going any where? Says he, You have been with JAMES: Who do you mean by JAMES, said I? YORK, says he. Surely, said I, it might have been the Duke of YORK, or his Royal Highness: No, said he, he is a Rascal, a Papist, and a Traytor, and I hope to live to see him hanged. Truly Doctor, said I, now let me give you a little advice to govern your Tongue and your Passions, I assure you they will do neither you nor your Cause good; it may do you a great deal of hurt in time, if you do not take care.

Mr. Sol. Gen.

Call Sir William Jennings.

Mr. Att. Gen.

Truly, my Lord, I think we need call no more, though we have multitudes of them, it is his daily Discourse.

Lord Chief Justice.

Call whom you will Mr. Attorney; for though it be the last day of the Term, and it is an unu∣sual thing to have a Jury at the Bar on that day, and more unusual to have them to execute a Writ of Enquiry here, yet in regard of the Greatness of the Person that is con∣cerned, and the extraordinary Nature of the Cause, We have ordered it thus, That all the World may see how his ROYAL HIGHNESS has been abused and scandalized by this Person.

Mr. Att. Gen.

The Defendant, my Lord, has been a person pretty much talk'd of too.

Lord Chief Justice.

Yes, truly it is done with regard to him too; for he has been an eminent Man in his Way.

Mr. Sol. Gen.

Then swear Sir William Jennings.

(Which was done.)

Mr. Att. Gen.

Now, Sir William Jennings, speak out, you hear the Question, What have you heard Otes say of the Duke of YORK?

Sir William Jennings.

My Lord, at the time of the Sit∣ting of the Parliament at Oxford, I was in a Tavern there with Mr. Cranfeild, one of the King's Gentlemen-Ushers, who seeing Mr. Otes going along by the Room, invites him to drink a Glass of Wine, there were a matter of some Eight or Nine at the Table; there was a little partition Curtain, it being a long Room, and there was some Com∣pany beyond that Curtain, and some Body in that Compa∣ny named JAMES Duke of YORK, and the KING's Health being drunk at our Table, Mr. Cranfeild began a Health to the DUKE: Says Mr. Otes, Do not you drink YORK's Health. Why should we not, says Mr. Cranfield, and a Gentleman or two more in the Company: Why, says he, he has ruined the Nation; and if the Devil has a place in Hell more hot than others, I hope he will bestow it upon him. Seve∣ral words past between Mr. Cranfeild and him upon it, and the KING was told of it presently.

Mr. Att. Gen.

Swear Justice Warcup.

(Which was done.)

Pray tell what you know of this Man's discoursing con∣cerning the Duke.

Mr. Warcup.

My Lord, I went into the Company where Sir William Jennings was that he spoke last of, and being de∣sired to drink a Glass of Wine with them, I did so, and they told me what Dr. Otes had said there.

Lord Chief Justice.

Mr. Otes, Titus Otes you mean.

Mr. Warcup.

Yes, my Lord, the Room had a Partition by a Hanging or Curtain, and I was first in the other Com∣pany beyond the Partition, and there some Body began a Health to his Royal Highness the Duke of YORK; this Health went round, and Otes was, it seems, in the next Room, and heard this Health I suppose: when I came into Sir William Jennings Company, Otes was gone; the Compa∣ny there told me what Otes had said, as Sir William Jennings has declared, they all agreed those to be the words, That he had ruined or betray'd the Nation; and if the Devil had a hot∣ter place in Hell than other, he hoped he would bestow it upon him. I met Otes afterwards, and asked him why he would speak such irreverent words of the DUKE? His Answer was, He was a Traytor, and was in the Plot; and he told me, I was a Yorkist, and he would remember me for it.

Mr. Att. Gen.

Did not that afright you, Mr. Warcup, to have him threaten you so?

Mr. Warcup.

I had then an Impeachment against me, and truly I think I might well be afraid.

Lord Chief Justice.

You say he owned the Words they told you of.

Mr. Warcup.

They did all agree those to be the Words; and I met him afterwards, and asked him why he would speak so Irreverently of the Duke, considering he was the King's Brother, and as virtuous a Prince as trod upon the Earth: Says he, He is a Traytor, and in the Plot; and you are a Yorkist, and I will remember you for it.

Mr. Sol. Gen.

We shall only call one more, to shew in what mind he continues to be, even since this Action brought. Swear Mr. Charles Chapman.

(Which was done.)

Pray, Sir, Tell what you know.

Mr. Chapman.

My Lord, I met Mr. Swift, the Duke of YORK's Attorney, when he was going over, as he told me, to demand a Plea of the Defendant Mr. Otes, and he desired me to go along with him, I did so; and when we came to him, Mr. Swift told Otes the Rules were out, and desired to know what he intended to do, whether he would plead or no. Otes asked him, If he were the Duke's Attor∣ney? He answered him, Yes: Says he, I do not value the Duke, nor his Attorney neither, I will plead as I shall see cause according to Law; I declare I neither love the Duke, nor fear him: And so turned his back, and was going away, and comes up again, and says to him, It may be I may be in for One hundred thousand Pounds here, but if ever a Parliament sit, I do not question but to have some Body else in my place. Mr. Swift asked him to explain himself who he meant, says he, Do you come to Trapan me? and away he went.

Mr. Att. Gen.

My Lord, we have now done, if the Ju∣ry please to consider of it.

Lord Chief Justice.

Is there any Body here for Mr. Otes, to offer any thing to lessen the Damages?

(To which No Body answered.)

Then, Gentlemen of the Jury, your Business now is to enquire what Damages you think fit to assess to his ROYAL HIIGHNESS, by reason of the speaking of the Words mentioned in the Declaration, there being in this Action Judgment by Default obtained by his ROYAL HIGH∣NESS; and you have nothing now to do, but only to assess to the Plaintiff such Damages as you shall think fit.

Now, Gentlemen, though the acknowledgment of this Judgment (for so it is in effect, it being by Default) be a sufficient Confession of the Words being spoken as they are laid in the Declaration, yet they have given you Proof of the very Words.

The Declaration is in an Action grounded upon the Sta∣tute De SCANDALIS MAGNATUM, taking notice that His Royal Highness is a great Peer of this Kingdom, and His Majestie's only Brother; and that Oates the Defendant knowing him to be so, to bring him under Reproach and Calumny, and to cause Discord to arise between the King and him, and between him and other Great Men, did speak the words laid in the Declaration which you have heard read, and which are these.

The first are, This Letter (Oates having a Letter in his Hand) cost Me Nine-pence, and might have been brought for a Penny; I know no Body is the better for it, but that Traitor JAMES Duke of YORK. This is laid over again with a very little variation, This Letter cost Me Nine-pence, and might have been afforded for a Penny; I know no Body is the better for it, but that Traitor JAMES Duke of YORK: which are words of the same Sound, and to the same purpose with the former; they differ only in some minute Circumstances a word or so, but import the same thing.

The next words are these, The Duke of YORK is a Traitor; and these words too are laid two several ways, differing but in very small Circumstances (Is a Traitor, and Was a Traitor) the Substance of the words is the same.

Now I say, Gentlemen, Though it is not your Business to enquire whether or no Oates spoke these words, for by letting Judgment go against him by Default, he doth in Law confess the words, but you are to enquire what Da∣mages may be fit to be given to the Plaintiff by reason of these words; yet in as much as this Case is a Case of an extraordinary Nature, Weight and Moment, having rela∣tion to so great a Prince, His Royal Highness the King's only Brother, requires this extraordinary Solemnity, it ha∣ving not been usual heretofore, that is to have Writs of Enquiry executed at the Bar. But the Occasion is extra∣ordinary, such as has not happened before this Age, this Corrupt Age, this Profligate Age wherein we live, and wherein common ordinary Fellows, the meer Scum and

Scoundrels of the Factious Party, have taken a Liberty to reproach and calumniate Magistracy and Government, and the greatest Personages concerned in it, not sparing even Majesty it self, nor Him, who is next in Degree to His Sacred Person, His onely Dear and Royal Brother. And therefore as the Case is extraordinary in its Nature, so ought the Example of it to be made as Publick as can be in order to satisfie all People what a sort of Fellow this Defendant is, who has been so much adored and looked upon with an Eye of Admiration, courted with so won∣derful an Affection, and so, I had almost said, Hosanna'd among People that have been Factious and Tumultuous to the Government.

Such as he, ought to be made Publick Examples of; and therefore the King's Counsel have desired that this Cause might be canvased here at the Bar, and the Defen∣dant as he has made himself Eminent for some particular Qualifications, might be made a Publick Example for this Offence.

Thus this Writ comes to be executed here. Now though the Words laid in this Declaration are words that do import in themselves so much Scandal and Reproach, so much Malice and Venom, that they need no Aggrava∣tion besides themselves, and his suffering it to go by Default shews they are no way to be extenuated, but are thereby acknowledged. Yet however to satisfie all People that desire or have any inclination to be satisfied, that this Prosecution is highly reasonable, nay absolutely Necessary; they come here and give you an Account that these in the Declaration are but a small Part of the Scandalous and Malicious words that the Defendant useth concerning the Plaintiff. And indeed it doth plainly appear, that the Malice of the Defendant is attended with all the most Un∣christian and Uncharitable as well as Disloyal and Dis∣obedient Circumstances that any thing can be, with de∣sign to Traduce and Disparage a Subject so Loyal, and a Person so Great and Illustrious as His Royal High∣ness.

As to the first words, you have the first Witness Mr. Smith, and he gives you this Account, He was in a Coffee-House where he met the Defendant Oates; and the Defendant in a Vain-glorious huffing sort of manner, takes occasion though none was offer'd him by any thing spoken to him by any Body, but only on set purpose to express his Malice and Venom against the Plaintiff. He takes up a Letter that it seems came to him by the Post, and to gratifie his own malicious Inclination, and to give it vent, he Proclaims, This Letter cost Me Nine-pence, it might have been brought or afforded for a Penny; and I know no Body is the better for it, but that Traitor JAMES Duke of YORK.

So you see, Gentlemen, he takes hold of every little Oc∣casion, if he can but happen upon an Opportunity, such as this was in an open Coffee-House, to reek his Malice upon His Royal Highness. And sure there can be no greater imputation of Scandal brought upon any Man than this upon the Plaintiff. That the first and greatest Subject of the King of England's should be taxed with the greatest Crime in the Law, Disloyalty and Treason to his Sove∣raign. And so at once not only chargeth him with being Perfidious to his only Brother, against that Affection which by Nature he is obliged to pay him, and which all that know any thing, cannot but observe to have always been extraordinary; but also touches that which is much dearer to him than his Life, his Honor, by charging him with the foulest of Crimes, Treason and breach of his Allegiance, which as a Subject he owes to his Soveraign. And thus besides the Defendant's Confession by this Judg∣ment you have the very words proved that are in the Declaration.

The next Witness is one Mr. Whaley, and he gives you an Account of another Passage which I cannot but take notice of by the way, to shew you what a wonderful Christian Temper this Man is endued with. Mr. Whaley says, That being at the Bishop of Ely's House upon a Pub∣lick Festival either of Easter or Whitsontide (and he is sure it was one of those two, Because, says he, I never use to re∣ceive

the Sacrament in London, but upon one of those two days; and therefore I take it upon me to say it was one of those two days that I heard these words) Oates having it seems received the Holy Sacrament at the Bishop of Ely's Chappel with Mr. Whaley that day. When a Body would have thought that if Mr. Oates would have been believed to be so Hearty and Pious a Protestant as he pretends to be, he should have remember'd that he ought, according to the Protestant Do∣ctrine, to have left behind him at his approach to the Altar, all Malice and Rancour, and ill Will and Hatred to every Body: But you see what kind of Deportment his was.

For after such time as he had been at the Sacrament, he takes occasion without any Provocation to fall foul imme∣diately upon his Royal Highness, giving him the Name of a Profligate Wretch; and then particularly he comes to say, The Duke of YORK was a Traitor. This Gentleman being concerned, as every Honest and Loyal Man ought to be, and I hope every good Subject is, and ever will be, to hear so great a Prince, the King's onely Brother, so tra∣duced and vilified, reproved him for it; but so far was he from taking the Correction due to his Extravagant Tongue in a becoming manner, that he presently (as the Gentleman Phraseth it) calls for his Myrmidons, two Fellows that he had along with him to come to him, upon which the Gen∣tleman was pleased to say to him, Nay, Good Mr. Oates, you need not be in so very much fear of your self as to call for your Men, no Body here intends you any harm. Nay certainly, Mr. Oates did apprehend himself to be secure from all manner of Correction, or he would never have been so Im∣pudent to speak such words.

But you will no doubt take notice, as all Men cannot but do, of what an excellent Gospel Spirit, what a delicate Christian temper the Man is of, after the receiving the Sa∣crament, that very Morning to come and belch out such extravagant words of Calumny and Reproach.

And it seems this Person had obtained to make such a wonderful Figure in the World, that every Body was afraid

to speak to him; for you hear what the Witness says when he came to beg the Bishop of Ely's Pardon for being so loud and hot at his Table, the Bishop gave him Thanks for it, and told him, None of us dare speak to him. Such a Considerable Man hath he been that he might rail against the King, and the Duke, & the Government without Controul. He was got into such a Post that no body durst meddle with him, but he must have liberty to say any thing of any Body. To what an height of Corruption were we grown, that we could suffer such a Fellow's Insolence, at which no man living that has any spark of Modesty or Loyalty left in him, but must Blush and Tremble.

Then they produce to you one Mr. Johnson, who gives you an Account, that after some Discourse between him and the Defendant Oates, about the Duke of YORK, he immediately told Johnson, That the DUKE was either to be Hanged or Banished; it seems he was so Ill a Man in his Eye, but of the two, Hanging was the fitter for him. So the Dr. shew∣eth what a wonderful Kindness and Affection he has for the Duke, and what thoughts he has of his great Deser••s.

Mr. Bowring is the next Witness, and he comes and tells you, That the Dr. could not be prevailed with to Dine with the Gentlemen of the Parish of Foster Lane, because some of them had dined with the Duke, which he calls Dining with the Devil. It seems he made as though he would Preach there to them, he got up into the Pulpit and took a Text, and pretended to Preach, and if he would have Preached according to the Duty of a Church of England Divine, he was by that to have Preached not only Obe∣dience and Submission to Authority, but Respect to Supe∣riors, and Charity among all Subjects towards one ano∣ther; and if he did Preach it, it was worse in him not to Practice it. But you see after he had performed his painful laborious Preachment, after he had taken such a won∣derful deal of Pains, as no doubt he did in instructing his Auditors, what his Language is in answer to a Civil Invi∣tation to Dinner by the Church-Wardens. Have any of you Dined with YORK at the City Feasts? as they not answering,

but being silently amazed at the impertinent Impudence of the Question, why truly he would not Dine with those that had dined with the Devil. It seems his Royal Highness had been pleased to Honor some Societies of Loyal Men in the City of London with his Company at some Entertainments they made, and that is a great Offence to the Defendant; and as for those that had received that Royal Favour from His Highness, he takes notice of them as such whom he would neither Eat nor Drink with, for truly they had eaten and drunk with the Devil; but immediately the Doctor in his great Zeal and wonderful concern for the Protestant Reli∣ligion, broke up from the Company, would neither Eat nor Drink with them, but chose rather to Dine at a private Brasier's by London-Wall; a properer place in good truth for him, than any such Conversation they offer'd him.

Then further to shew what mean Thoughts he had of the Plaintiff, Mr. Fairfax he comes and testifies, That there being some talk of a Presentment or Indictment against the Duke of YORK by the Grand Jury here, but that meeting with a Disappointment, he met Oates, and asked him, What he would do, for, says he, now you are Non∣suited? that is, you have happened not to obtain the End that you designed, Oh, says Oates, No matter for that, that is all one, we will at him next Sessions; and for my part, I will have no more regard to him than I would to a Scavenger. Nay, and because they should see the very utmost of his Malice, and the low Thoughts he had of his Royal Highness, as if it had not been Malicious enough to have compared him to a Scavenger of London or Westminster, no, that was a Station too honorable for him in his Thoughts, but he must necessarily be compared to a Scavenger of Kent-street; which we all know to be one of the meanest, filthiest, and most beggerly parts of the Town.

The next piece of Evidence is, that which is given by one Mr. Philips, and when he came to him, he began to have some Reflexions about the House of Commons and the Duke; and truly he did not doubt but he should see him at the

Bar of the House of Commons; and it would be no Disparagement to him to come there, for there were a great many Members there that were as good Men or better than he. And even by this Fancy of his he would fain degrade His Royal Highness; for in Case he had him in no other Consideration but as a Peer, he should know that no Peer of this Realm can be forced by any Vote or Order of the House of Com∣mons to come to their Bar. But he had a mind to take off his very Privilege of Peerage, and it would be no lessening of his Greatness, since that House had in it many Members better Men than the Duke himself. I presume he meant some particular Friends of his own in that House.

The next Man is one Mr. Ashlock, and he tells you, That because he would engage all People into an hatred of the Duke's Person, he must as a thing of the greatest Conse∣quence in order to it, make it be believed, that the Duke had a great hand and concern in the Dismal Fire of London in Sixty Six, that thereby he might make him obnoxi∣ous to the Rancour and Malice of all that suffered in that dreadful Calamity. And with what handsom Expression he cloaths it? He fired the City of London, he is the Son of a Whore, and we will have him hanged or sent out of England for it, whenever a Parliament meets.

So that here is not only a Personal Reflexion, and Ma∣licious Indignity done to His Royal Highness, but carries in it a great Reflexion upon His Sacred Majesty himself in his Relations, and he is not contented only to belch out his Venom and Malice against those that are alive, but even against those that are Dead too. For you see it is a most foul Imputation and Slander against Her late Majesty the Queen Mother to our Soveraign and His Brother, by calling him the Son of a Whore; which is an Expression of that Impudent and Insolent Na∣ture, as is not fit to be mentioned in a Civil Go∣vernment.

These things I think my self obliged to take Notice of for Example's sake, and to induce all People to con∣sider to what a height of Corruption we were grown when such Scoundrel Fellows as this dare to take such base words into his Mouth, of the Royal Family.

Then comes Captain Cressett, and he gives you an Account, That when His Royal Highness and the Dut∣chess were going last to Scotland, as the Captain re∣turn'd from the Duke's Lodgings, he met with the Defendant, who fell upon him, What, you have been with JAMES? it seems he was one of his intimate Ac∣quaintance, and very Familiar he was with his Name. Indeed a Man would have thought, if in Case he had spoke as one man ought to speak of another, that he had been speaking of one of his Myrmidons, and it would have been a very hard matter to have known who else he meant by that familiar Appellation. Says the Captain, What James? Why YORK; and he was very kind that he gave him that Addition to let him know what JAMES he meant; But when the Captain chid him, and told him, Sure you might either say the Duke of York, or His Royal Highness, then immedi∣ately instead of that, he flies out, He is a Papist, he is a Traitor, and I hope to live to see him Hanged, and you will go near to lose your Reputation if you go so often thither.

So that I perceive, if he will not be advised by this Gentleman, he should lose all his Credit; and yet I presume it is wonderfully for the Advantage of Mr. Cressett to lose the Credit he could get by any Characters or Commendations such an one as he could give him.

Then Captain Cressett kindly advised him to take Care of injuring his Party by his Passion, and his In∣decent Behaviour, and told him, it would turn to his Prejudice at last. And truly now I think, if all his

Party were in his Condition, and made to smart for the Lavishness of their Tongues, I think it were a good Accomplishment of his Prophecy, and if we were rid of them, we should be more at Peace. And we may with∣out offence hope to see that sooner, than what the De∣fendant says he hoped to see.

The next is Sir William Jennings, who tells you of a Passage at the Parliament at Oxford, which shews his wonderful Gospel and Christian temper. When a Com∣pany of Gentlemen were met together to Drink a Glass of Wine, and were wishing Health and Long Life to His Sacred Majesty, His Royal Highness, and the Royal Family, he would not be contented to refuse the Glass, but to shew how wonderful a Christian Spirit he was of, and to evidence his true Protestant Charity (and by his Carriage who was one of the Heads of the Fa∣ction, we may guess at the Temper of all the Party) he cries out, He has ruined the Nation, and if there be any hotter place in Hell than other, I hope the Devil will preserve it for him.

I presume his great Conversation with him he spoke of, hath given him some Intelligence there is in Hell some hotter places than others, and who they are re∣served for. But Gentlemen, I speak not this that I think any thing that is thus proved by the by, doth in the least aggravate the Damages, for the Words in the Declaration are as bad as bad can be; but to let you see the disposition of this Man that has been so much ad∣mired and courted.

After him comes Mr. Warcup, who tells you, he was not in the Room with Oates when the last words were spoken, but coming in immediately after, they all told him the same words, and he afterwards meeting with Oates, and reproving him for his indecent Behaviour and Expression, instead of any remorse concern that he had upon him, by reason of his having spoken such

words, he doth still add to it, The DUKE of YORK is a Traitor, he is in the Plot; and because you take his part you are a Yorkist, and we will be even with you for it at one time or another. So he threatens him only for asking him why he behaved himself in such an in∣decent manner towards His Royal Highness.

The last Witness Mr. Chapman, is produced to shew what Mind he continues in. After all this is past, and a body would have thought he might by this time have been brought to some Consideration and Sub∣mission to Authority; yet you see how the Man is. The Witness tells you since the beginning of this Term, the Declaration being delivered and by the Course of the Court he ought to Plead within such a time, the Attorney goeth to him for a Plea in order to make his Defence if he could in the Action now before you, but he lets Judgment go by Default; and so far is he from repenting of what he had formerly done, that he persists in it, and tells him, Are you the DUKE's Attorney? Yes. Well, I care not a farthing for the DUKE nor his Attorney neither; it may be I may be in here for 100000 l. (and that I believe is one of the truest things he ever spoke in his Life) but suppose I be, I do not doubt but when a Parliament meets a time will come when some other People may come in my place. But tru∣ly since he has declared his Hopes, I think it may not be amiss for us to declare ours too; and for my part, to say I hope I shall never see such a Par∣liament.

Mr. Under-Sheriff.

Lay your Heads together Gentlemen, and consider of your Verdict.

They did so standing at the Bar.

Mr. Under-Sheriff.

Are you all agreed of your Ver∣dict?

Omnes.

Yes.

Mr. Under-Sheriff.

Who shall say for you?

Omnes.

Foreman.

Mr. Under-Sheriff.

What Damages do you find?

Sir Charles Lee.

Full Damages, an Hundred Thousand Pounds.

Mr. Under-Sheriff.

What Costs?

Sir Charles Lee.

Twenty Shillings.

Which Verdict being Recorded in an Inquisition in∣dented, taken under the Hands of all the Jury, was afterwards annexed as the Return to the Writ of In∣quiry.

FINIS.