ON Friday the 29th day of June (being the Feast of St. Peter and St. Paul) the Bishops then and there made their Appearance.

• Sr. Robert Wright Ld. Ch. Justice. Judges.
• Mr. Justice Holloway. Judges.
• Mr. Justice Powel. Judges.
• Mr. Justice Allybone. Judges.

These Peers being present, viz.

• Ld. Marq. of Hallifax.
• Ld. Marq. of Worcester.
• Earl of Shrewsbury.
• Earl of Kent.
• Earl of Bedford.
• Earl of Pembrook.
• Earl of Dorset.
• Earl of Bullingbrook.
• Earl of Manchester.
• Earl of Rivers.
• Earl of Stamford.
• Earl of Carnarvon.
• Earl ofChesterfield.
• Earl of Scarsdale.
• Earl of Clarendon.
• Earl of Danby.
• Earl of Sussex.
• Earl of Radnor.
• Earl of Nottingham.
• Earl of Abington.
• Ld. Visc. Fauconberge.
• Ld. Newport.
• Ld. Grey of Ruthyn.
• Ld. Paget.
• Ld. Chandoys.
• Ld. Vaughan Carbery.
• Ld. Lumley.
• Ld. Carteret.
• Ld. Ossulston.

'Tis possible more of the Peers might be pre∣sent both days, whose Names by reason of the Croud, could not be taken.

The Bishops Names being called over, the Jury was sworn, whose Names follow, viz.

• Sir Roger Langley, Bar.
• Sir William Hill, Kt.
• Roger Jennings, Esq
• Thomas Harriot, Esq
• Jeoffery Nightingale, Esq
• William Withers, Esq
• William Avery, Esq
• Thomas Austin, Esq
• Nicholas Grice, Esq
• Michael Arnold, Esq
• Thomas Done, Esq
• Richard Shoreditch, Esq

To whom the Information against the Bishops was read: And then Mr. Wright opened the charge: to which Mr. Attorney General spoke, shewing that the Bishops were prosecuted not as Bishops, or for any point of Religion but as Subjects, and for a Temporal Crime. And that also they were prosecuted not for omitting any thing, but for doing something, even cen∣suring of his Majesty and Government. The Heinousness of which Crime he opened; and laid down the Method they would proceed in to prove it. And according to the Method ob∣serv'd in the Information, that every thing might be proved therein, Mr. Solicitor General order'd to be produced in the Court both the Declarations, under the Great Seal, and the Order of Council for reading the latter, was read out of the Council-Book, and the Printer call'd and sworn to prove the printing of the Declaration. Then the Bishops Petition was de∣liver'd in also by Sir John Nicholas, who being sworn, deposed, that he received that Paper from the King in Council the 8th of this Month; that the King had it from him again the 12th; and the 13th he received it again from the King.

Then the Court went on to prove the Bishops hands to it, and for that end Sir Thomas Exton was sworn, who viewing the Paper, deposed that he did believe it was the Lord Arch-Bishops Writing, and that his Name was writ there by himself; but that he did not know any of the other Names.

Then Mr. Brooks being sworn, deposed also, that he knew the Arch-bishop Hand-writing, and (viewing the Paper) did believe that to be written by him. That he knew also the Bishop of St. Asaph's Writing, and did believe this to be his. That he had seen of the Bishop of Ely's Writing, and because this did resemble a Letter that he had by him of his writing to the Bishop of Oxford, therefore he did believe this also to be his.—But this was by the Court adjudged to be but weak Evidence. Therefore▪

Mr. Chetwood was sworn to prove the Bishop of Ely's Hand, but he only deposed, That he had a great while since, seen of what was said to be his Writing, but that he never saw him write, and therefore did not certainly know his Hand. And a little after, being called to evi∣dence to the Bishop of Bath and Wells, and Bishop of Peterborough's Hands, he said, that he had seen of the Bishop of Bath and Wells Wri∣ting, but never saw him write his Name, and (looking on his Name) he said he believed that might be his Writing, but he was not certain; that he rather believed it to be his Hand, than that other to be my Lord of Peterborough's.

After him Mr. Smith deposed (viewing the Bishop of Ely's Name) that he had, a good while since, seen of his Writing, which this did Page  441resemble, and therefore he believed it might be his Writing; though he could better judg of it when he writ his Name Turner, than now it is Ely, because there was more Letter to judg by.

Then Mr. Middleton deposed to the Arch-Bishop, and the Bishop of Ely, That he had seen their Writing, and (upon viewing the Pa∣per) did believe that this was theirs. That also he had my Lord of Peterborough's Writing for some Money two Years ago, and he believed this to be like it, but he never saw of his Wri∣ting but once. That once he saw of the Bishop of Bristol's Writing also, and did think this like it, but could not say more.

Then Sir Thomas Pinfold deposed to the Bishop of Peterborough's Writing, that he never saw but one Letter from him, and (viewing the Pa∣per) that he could not tell upon his own Know∣ledg that that was his Hand▪ but upon this ac∣count, that he had heard there was a Paper de∣livered by my Lords the Bishops to the King, and this Paper, he supposing to be the same, upon that score he did believe it his Hand, but upon any other score he could not tell what to say.

Then Mr. Clavel was sworn, who deposed that he had many times seen of the Bishop of Peterborough's Writing, and believ'd he knew it, and (viewing the Paper) believ'd that to be his Hand; but he could not say that ever he had seen him write.

Next Mr. James was sworn, who deposed to the Bishop of Bristol's Writing, that he believ'd he knew his Hand, but was not certain, because my Lord writ several times, several Hands; but Page  442viewing the Paper, he at last acknowledg'd that he believ'd this to be his.

Then Mr. Nathaniel Powel being sworn, de∣posed to the Bishop of Chichester's writing, that he believed he knew his Hand, but looking upon his Name, said that he did not see his Lordship write that, but believ'd it to be like his Hand; but would not say positively that he believ'd it was so, because for a Man to swear his belief in such a matter, seemed to him an ex∣traordinary thing.

Then the Counsel for the King prayed that the Paper might be read; but the Bishops Coun∣sel opposed it.

First Mr. Serj. Levinz pleaded, That a Proof by Comparison of Hands (which was the only Proof they had in this case) ought not to be re∣ceived in a Criminal Case; and because moreover that Comparison had been proved in such an un∣certain manner.

Then Mr. Serj. Pemberton pleaded, that this Evi∣dence did not amount to so much as a Compari∣son of Hands, because none of them had ever seen the Persons write; and if it did, that was no Evidence in Criminal Cases.

Then Mr. Pollexfen pleaded, that it ought to be consider'd whether Comparison of Hands be Evidence in a Case of Misdemeanour, (instancing in my Lady Carr's Case, in Syderfin's Reports, where this Court had adjudg'd it otherwise;) Or if it be Evidence, whether the Belief of a Man that brings nothing to compare with it, or ever saw the Party write, be good Evidence as a Comparison of Hands?

Then Mr. Attorney General reply'd, that this Page  443was Evidence, though not so strong, as if they had brought those that had seen then write; yet Evidence it was, and whether it were suffi∣cient, that they submitted to the Jury.

Then Mr. Attorney General prov'd it to be Evidence from Sydney's Case, where Evidence upon Comparison of Hands caste him. And for the same purpose Mr. Recorder instanced in Sir Samuel Barnardiston's Case, but was presently fi∣lenc'd by Sir Robert Sawyer, who told him that Sir Samuel there owned his Hand.

Mr. Justice Powel and Mr. Holloway then de∣clared that they thought the Proof too slender in this Case, for that it ought to be stronger in Criminal Matters than in Civil. Therefore the Court being divided, the Ld. Ch. Justice told Mr. Sollicitor he must go on to some other Proof. And then Mr. Blathwayt was sworn, who looking on the Paper, deposed that he did believe that to be the Paper which the Ld. Arch-Bishop and the other six owned at the Council-Table the 8th of this Month, where when they appeared the first time, they were asked if they did own that Paper? they immediately answered, that they humbly hoped, as they stood there Crimi∣nals, his Majesty would not take Advantage against them, but however they would obey his Majesty's Command. Thereupon they were commanded to withdraw, which they did. That when they came in the second time, they seemed unwilling to own the Paper, saying, as they did before, and denying the publishing of it. That the third time they attended, they did all own it, and the Arch-Bishop said it was all written with his own Hand, and that he had not made Page  444use of his Clerk; the King not making any Promise to them, that no Advantage should be taken, or use made of it.—Upon which the Kings Counsel again urged that the Paper might be now read; but the Bishops Counsel still op∣posed it, pleading, that first it ought to be proved that this Libel (as they call'd it) was written and published in Middlesex; for that all Matters of Crime were so local, that if it be not proved to be done in the County where it is layed, the Party accused is as innocent as if he never had done the thing.—But this the Ld. Ch. Justice over-ruled, that it was not proper to urge this until the Paper had been read; then Mr. Justice Powel at first opposed it. The Bishops Petition then was read and shewn to the Jury: The King's Counsel leaving it here, till they had seen what should be said to it. The Bishops Counsel therefore urged their former Objection, that nothing had been proved to be done in Mid∣dlesex, and that the Bishops owning the Paper in that County, would not amount to a Publication of it there; besides that the Information and Petition did not agree, the Direction and Peti∣tionary Part being left out.—To which the King's Counsel reply'd, That the Fact being own'd in Middlesex, it is to be supposed to be done there, until they had proved it to be done elsewhere. Which therefore the Bishops Counsel did by Mr. Francis Nichols, who being sworn, de∣posed, that he had served the Arch-Bishop in his Bed-Chamber this seven Years, and he was sure that he never stirred out of the Gate of Lambeth-house, since Michaelmas last, till the Page  445time he was summoned before the Council.

Yet Mr. Finch insisted on it, that the King's Counsel ought to prove the place in which it was writ; for that the Locality of it being part of the Crime as laid in the Information, they had not proved the Charge unless they did that; — Which because the King's Counsel could not do, they yielded in that Point; and insisted upon the Publication of it in that County, because there it was own'd; instancing in several cases, wherein the writing of a Libel was adjudged a Publication: To which the Bishops Counsel reply'd, that in those Cases it was proved that the Libel was sent by the Persons, which here it is not; and till that is proved, it cannot be said to be published by them, an owning of it to the King and Council, not being criminal; because then an Answer to a Question, put by Authority, would be a Crime, and then it would be as if Authority were employed to do wrong. — The King's Counsel therefore insisted upon it, that it was their parts to prove it did not come from them to the King, for that the King had it, and they own'd it, and till they proved it otherwise, they must presume it was deliver'd by them. — But Presumption being looked upon as no Evi∣dence, the Court would not accept of this. — And therefore the King's Counsel called Mr. Blathwayt again, who deposed (as before) that he was present when this Paper was delivered by the King, at the Council-Board, and being asked by Mr. Sollicitor General if there was any men∣tion of what it was done for, upon the account of Religion, or how? he answered, he did hot remember any thing of that [At which there was Page  446a great Laughter] — But that he received it from the King's hands, and he knew it was pre∣sented to him by the Bishops, for that he had heard the King say so several times. That to the best of his remembrance the Bishops were question'd whether this was the Paper presented by them to the King; and that he did always think it a plain Case that it was so, nor did they deny it; but as to that Question, he did not remember what the Words were [At which there was a great Shout]

Then Mr. Bridgman was asked the same Que∣stion; Whether there was any question at the Council-Board, whether this was the Paper pre∣sented by the Bishops to the King? To which he, in answer, deposed that there was some∣thing about it, but he did not remember whe∣ther the question was directly asked or answer∣ed; — But he Believed there was no Body doubt∣ed that that was not the Paper; — And that he saw it, soon after it was delivered, and heard the King say it was the Petition the Bishops had delivered, and on Sunday the King commanded him to copy it, and there was no Copy made of it but that one, notwithstanding that he saw a Copy, within a day or two after it was present∣ed, about the Town.

Then Sir John Nicholas being asked to the same Question, answered, that (though he was then present at the Council-Board) he did not remember that. [Then there was a great Shout.]

Then Mr. Pepy's, being sworn, was examin'd to the same; and depos'd that he did not re∣member any thing was spoken about the deli∣vering, but he believed it was understood by e∣very Page  447Body at the Table, that that was the Paper the Bishops had delivered.

Then Mr. Musgrave, being sworn and exa∣min'd to the same, deposed, that he did not re∣member that ever any such direct Question was asked.

Upon this Evidence then the King's Counsel (when they had opened it) submitted to the Ju∣ry; And the Ld. Ch. Justice began to direct the Jury; but was interrupted by Mr. Finch, who questioned whether it were Evidence or no; be∣cause if it were, they had other matter to offer in Answer to this Evidence, and in their own Defence. Whereupon the Ld. Ch. Justice re∣solved to hear them, though the rest of the Bishops Counsel pray'd him to go on with his Lordships Direction; But just as he was begin∣ning to go on, the King's Counsel then pray'd his Patience; Mr. Solicitor General, saying, There was a Fatality in some Causes, and so there was in this; for that they had notice that a Person of very great Quality was coming, that would make it appear, that the Bishops made their Addresses to him, that they might deliver this Paper to the King. — [Then there was 3 or 4 long Pauses for above half an Hour;] And no one coming, the Criar made Oath that Mr. Gra∣bam coming into the Hall when his Lordship was directing the Jury, said, my Lord Sunderland was a coming, but he would go and prevent him; And afterwards returning, and finding his Lord∣ship did not go on, he said he would go again for the Lord Sunderland whom he had sent away, and he was now gone for him, and said he would bring him with him presently. — At length the Page  448Lord President came, and being sworn, depo∣sed, That the Bishops of Saint Asaph and Chi∣chester came to his Office, and told him that they came in the Name of the Archbishop and 4 other of their Brethren, viz. the Bishops of Ely, Bath and Wells, Bristol, and Peterborough, to let him know that they had a Petition to deliver to the King▪ if he would give them leaver; and de∣sired to know of him, which was the best way to do it. That he told them, he would know the King's Pleasure, and bring them Word again: That they offered him their Petition to read, but he did not think it fit for him to do it, and there∣fore he refused and would not read it; but that he went immediately to the King, and acquaint∣ed his Majesty with it, and he commanded him to let them know they might come when they would, which he immediately did; they said they would go and speak with some of their Bre∣thren that were not far off; in the mean time he gave order that they should be admitted when they came; and they did in a little time return, and went first into the Bed-Chamber, and then into the Room where the King was. And all this was before they appeared at the Council.

This was no Evidence, Mr. Pollexfen said, a∣gainst the Archbishop, because he was not there, and nothing had been proved against him as done in Middlesex; and for the other 6 Lords, the Lord President did not say, that this is the Petiti∣on that they said they had to deliver to the King; Nor did he see them deliver any thing, but that is still lest doubtful, so that it stands up∣on Presumption, and not upon Proof.—Howe∣ver the Kings Counsel desired to leave it fairly to Page  449the Jury upon this Fact; and then therefore the Bishops Counsel desired to be heard in their De∣fence. And,

First Sir Robert Sawyer, in a long and learned Speech, told the Jury that the Charge against the Bishops; was, That they did conspire to di∣minish the Royal Authority, and to this end make a Libel against the King: but that the E∣vidence fell far short of this, which only proved that the Bishops in as private and humble a man∣ner as they could, presented the Paper to the King, which was a Petition to be relieved against an Order of Council, which they conceived they were aggrieved by: and herein was no Sedition either in the matter, or manner of delivering it. That it was not to be question'd but that any Subject commanded by the King to do an unlaw∣ful Thing, or what was against his Conscience, might humbly tell the King why he could not o∣bey him. And that whereas Mr Attorn. Gen. had at first said that the Bishops were not sued as Bishops, nor prosecuted for their Religion; he could not conceive what they were sued for else, the Information being against them for an Act they did as Bishops, and no otherwise; it being what was their Duty, and properly within their Sphere and Jurisdiction. — That whether there∣fore they consider'd the Matter of this Petition, or Manner of delivering it, or the Persons that deliver'd it, there can appear no Reason for such an Information against them.

In the Matter of the Petition he consider'd two Things; First, the Prayer; wherein he shewed there could be nothing of Falsity, nor any thing contrary to Law, for which reason he said, pos∣sibly, Page  450it was left out of the Information, as being thought no part of a Libel, and so made a de∣form'd story of it, without Head or Tail; a Peti∣tion directed to no Body, and for nothing, it being without both Title and Prayer. Secondly, he considered the Reasons of the Bishops for not complying, expressed in it. The first whereof is the Declarations of Parliament against the Dispensing Power; and the next, because it is a Matter of so great Moment and Consequence to the whole Nation, that they could not make themselves so far Parties in it. For if it be of any effect; then by it, not only the Laws of the Reformation, but of all Religion are suspended: and what a mischief that would be to the Church, which is under the Care of my Lords the Bi∣shops, any one might easily apprehend.— [While Sir Robert was speaking to these things, the Ld. Ch. Justice said aside, that he must not suffer this. They intended to dispute the King's Power in suspending Laws. Mr. Justice Powel reply'd to him, that they could not avoid that Point; because if the King had no such Power, (which was his Judgment) then this Petition could not be Libellous. The Lord Chief Justice told him he knew he was full of that Doctrine; and because the Bishops should have no occasion to say, that he denied to hear their Counsel, he would let them talk on till they were weary.]

Then for the Manner of delivering the Petiti∣on, Sir Robert Sawyer proceeded to shew, that from their Evidence it appeared to be in the most private and humble manner; Leave being first asked, and then given.

Then for the Persons, he shewed that they did no more than what was their Duty, and belong∣ed to them; the Act of 1 Eliz. cap. 2. making them special Guardians of the Law of Uniformi∣ty, and of that other Law in his late Majesties Reign, where all the Clauses of 1 Eliz. are revi∣ved. Now in that Statute of 1 Eliz. there is this Clause:

By this he shewed that it was plain, that the Bishops, upon pain of bringing upon themselves the Imprecation of this Act of Parliament, were obliged to see it executed; and then when any thing comes under their Knowledg, especially if they are to be Actors in it, that has such a ten∣dency to destroy the very Foundations of the Church, as the Suspending of Laws has, it con∣cerns them that have no other Remedy, to ad∣dress the King, by Petition, about it; and 'tis the Duty of an Officer or Magistrate to tell the King what is Law, and what is not; [he in∣stancing in Cavendish's Case, and another in the Page  452time of the Lord Hobbart.]

Next to him Mr. Finch spoke, briefly recapitu∣lating the King's Evidence, and then shewing that this Petition, as well for the Matter of it, as Manner of delivering it, and the Persons by whom it was delivered, was no Libel. Particularly that the King's Regal Authority, and Royal Pre∣rogative was no way diminished thereby; for that the Declaration was founded upon a Dispen∣sing Power, which the King could not have; — Because a Power to abrogate Laws, is as much a part of the Legislature (which is only in the King and his two Houses of Parliament) as to make Laws: and a Power to suspend, is equal to a Power of abrogating Laws, because they are no longer in being, as Laws, while they are suspen∣ded. — That this was never attempted, but in the last King's time, which was took notice of, and declared against in Parliament, in the Years 1662 and 1672; the effect of which was, that His Majesty cancell'd the Declaration, and de∣clared that it should never be drawn into Exam∣ple or Consequence. — That the Bishops here, had done but what became them, as Peers and Bishops, in the most decent Manner. And that unless this humble Petition, so presented, may be said to be a malicious and seditious Libel, with an intent to stir up the People to Sedition, the Jury ought not to find my Lords the Bishops guilty upon that Information.

Mr. Pollexfen next spoke, insisting upon the Illegality of the King's Declaration, as setting a∣side all the Law we have in England, almost all being Penal Laws, not only those before the Re∣formation, but since; especially in matters of Page  453Religion. — And therefore the King's Will, not being consonant to Law, and not obliging, no∣thing can be done with a more Christian Mind than to inform him of it, by way of Petition, as the Bishops had done.

Then Mr. Serjeant Pemberton spoke; Affirm∣ing that the Bishops had done no more than their Duty, to God, the King, and the Church. — De∣nying the Dispensing Power, as a thing that strikes at the very Foundation of all the Rights, Liberties and Properties of the Kings Subjects whatsoever. — That the King's Legal Prerogatives are as much for the Advantage of his Subjects, as of him∣self. — That these Laws he would by his Declara∣tion suspend, are the great Bulwark of the Re∣formed Religion. — Intended to defend the Nati∣on against false Religions, — Particularly the Ro∣mish Religion, (which is the very worst of all Re∣ligions) a Religion no way tolerable, nor to be endured here. — And yet if this Declaration should take effect, all Religions would be let in, and even that Religion would stand upon the same terms with the Protestant Religion; and all the Care and Statutes that had been against it, go for nothing. — That the Bishops have the Care of the Church, by their very Function and Office; and are bound to take care to keep out all those false Religions that are prohibited, and designed to be kept out by Law, and therefore could do no less than they did. — That our Law did allow the King no such Dispensing Power; — Instancing in that Check the Parliament had given to it in 1662. — But here the Ld. Ch. Justice interrupted him, as being what had been spoken to already.

Then Mr. Serjeant Levinz offered to shew, that it has been taken all along, as the ancient Law of England, that such Dispensations ought to be by the King and Parliament, and not by the King alone: but he was stop'd, enough having been offer'd already.

Therefore the Bishops Counsel proceeded to prove what had been said; and to that end was produced, and read in Court, the Record of Richard the Second, wherein the Parliament gave the King a Power to dispense with the Statute of Provisors (which was a Penal Law, concern∣ing collating and presenting to Dignities and Benefices of the Church) only till the next Par∣liament; declaring withal that it was a Novelty, and that it should not be drawn into Example.

Then the Journal of the House of Lords was produced, and his Majesty's Speech to both Houses, in 1662, read, wherein is this Clause;

Then the Journal of the House of Commons was produced, and a Vote read, which passed, Feb. 25. 1662. That no Indulgence be granted to the Dissenters from the Act of Ʋniformity: With the Commons Address, and Reasons for this Vote; wherein was declared, That the Act Page  455of Ʋniformity could not be dispensed with, with∣out an Act of Parliament.

The Journal of the House of Lords was again produced, and the King's Speech to both Houses, on Feb. 5. 1672, read, wherein he mentions his Declaration for Indulgence.

The Journal then of the House of Commons was again produced; and the Commons Petition and Address to the King, Feb. 14. 1672, was read; Wherein they thank him for his Speech, — And tell him,

Then his Majesty's Answer to that Reply was read, wherein he expresses his trouble, that his Declaration has disquieted them; —

To which the Commons replied, (which was then read out of the same Journal)

With an unanimous Consent, they therefore again besought him,

Then the Lords Journal was turned to, where∣in it wa• read, how that the King communica∣ted this Address to the Lords, and desired their Advice. And that on March the 8th, 1672, He made a Speech to both Houses; wherein he tells them,

Then his present Majesty's Speech, on No∣vemb. 9. 1685, to both Houses, was read, where∣in, declaring the Necessity of his Standing Army, and requiring a Supply for their Maintenance, he says, —

The Commons Journal being then turned to, their Address to the King was then read; Wherein, after they had thanked him for his Care in the suppressing the late Rebellion, they acquaint him, that they had considered his Speech, and,

After this, that forecited Clause of the Sta∣tute 1. Eliz. was read, and then Mr. Serj. Le∣vinz spoke to this effect; That the Charge be∣ing for a Libel, it ought to be consider'd, Whe∣ther the Bishops did deliver this Paper to the King? of which there has been no direct Proof; (Publishing he would not talk of, because there has been no proof of a Publication); or sup∣posing they did deliver it, Whether this be a Li∣bel upon the Matter of it, the Manner de∣livering it, or the Persons that did it? — He said it was no Libel,—taking notice of the disinge∣nuity offered the Bishops, in only setting forth part, and not the whole.— Affirming, that the Subjects have a Right to Petitioning in all their Grievances; — That this was a Grievance the Bishops petitioned against, it being what the Law, neither Common, nor Act of Parlia∣ment, allowed of; — And therefore the Bi∣shops could not be guilty of the Charge.

Then Mr. Finch spoke briefly again, making a Page  459Challenge to shew any one Instance of such a Declaration, such a general Dispensation of Laws from the Conquest, till 1672. — Leaving their Cause upon this Point; That to suspend Laws, is to abrogate them; and that to abro∣gate Laws is part of the Legislature, which Power is lodged in King, Lords, and Commons.

To which Sir Robert Sawyer added, That he found few Attempts of this Nature in any Kings Reign. In the Reign of Henry the 4th, there was an Act of Parliament that Foreigners should have a free Trade in London, notwithstanding the Franchises of the City. After the Parlia∣ment rose, the King issued out his Proclamation, forbidding the execution of that Law, and com∣manding that it should be in suspense till the next Parliament; yet that was held to be against Law. Then he mentioned another Case, 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 reciting, that the Law is not to be altered, or restrained, but by Act of Parliament.—

Then Mr. Sommers (of Counsel also for the Bishops) mentioned the Case of Thomas and Sorrel upon the Validity of a Dispensation of the Statute of Edward the 6th, touching selling of Wine. Where 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 a Suspension of an Act of Parliament, but by the Legislative Power. — Affirming, that the Mat∣ters of Fact alledged in the Bishops Petition, had been proved perfectly true by the Journals Page  460of both Houses. That there could be no De∣sign thereby to diminish the King's Prerogative, because he had none such; That the Petition could not be Seditious, nor stir up Sedition, be∣cause 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, because 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 petition his Prince, when he is grieved.

Here the Bishops Counsel saying they had done, Mr. Attorn. Gen. spoke for the King; Alledging that the Records produced were no∣thing to the purpose, because they were only Matters transacted in Parliament, and not Acts of Parliament.—That be their Libel never so true, yet still it was Libellous.—That though the Subject may petition the King, yet not in such reflecting Terms. And though Religion was concerned, yet ought not illegal Means he made use of;—That therefore the Bishops ought rather to have acquiesced under their Pas∣sive Obedience till the Parliament met, which the King had promised in his Declaration should be in November.

Then Mr. Sol. Gen. in along Speech added, That the Bishops had no right of Petitioning out of Parliament; and therefore the Proceed∣ings in Parliament which had been produced were not to the purpose. [Here Mr. Justice Powel expressed his dislike of this Doctrine aside to the Ld. Ch. Justice, who concurred with him.] Going Page  461on to prove from the Statute 1 Hen. 4. that there ought to have been no Complaint made till it had come from the Commons in Parlia∣ment; that the Law continued 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 Sta∣tute that sets up the Court of Star-Chamber; which yet was abolished by the Statute of the 15 Car. 1.—That the Proceedings of Parliament produced were no Declarations of Parliament, (because never passed into an Act) and there∣fore they are Nullities, and cannot be accepted of as any Evidence. [Here again the Ld. Ch. Justice, and Mr. Justice Powel discours'd aside, saying, he thought to impose upon them, but they believed not one word he said.] Then he appealed to the Case in the 2 Cro. 2. Jac. 1. Where it is asserted, That the King may make Orders and Constitutions in Matters Ecclesiastical.—And the Case of De Libellis Famosis, which says, in the 5th Report, If a Person does a thing that is Libellous, you shall not examin the Fact, but the Consequence.—And therefore if the King hath a Power to make Orders in matters Eccle∣siastical, and do so; if any bring that Power into Question, that is Sedition; and the Le∣gality or Illegality of the Order ought not to be examined.—Whence he doubted not but they had here a good Case for the King, and that the Jury would give them a Verdict.

Then Mr. Justice Holloway asking him, What the Bishops could have done in this Case, if they might not Petition?, he answered, That they should have acquiesced till the meeting of Page  462the Parliament [At which some People in the Court hissed.] Adding, that it was one thing for a Man to submit to his Prince, where he cannot obey him, and another thing to affront him; this being Libelling with a Witness.

To which the Ld. Ch. Justice said, That he was of Opinion that the Bishops might Petition the King, though out of Parliament, but not in such a Reflective manner, because that would make the Government very Precarious.—But Mr. Justice Powel told Mr. Sol. Gen. it would have been too late to stay for a Parliament; and if the Bishops had disobeyed without Petitioning, it would have looked like a piece of Sullenness, and they would have been blamed for it as much on the other side.

Mr. Serj. Baldock then spoke also for the King; insisting on the Disobedience of the Bishops to the King, who is their Supreme Or∣dinary, they being not commanded to read it themselves, but only to distribute them to be read; and their giving Reasons for their Diso∣bedience in a Libellous Petition, charging the King with an illegal Act, reflecting upon his Prudence, Justice, and Honour, in laying his Commands upon them; which being done by Bishops, and having an Universal influence upon all the People, he left it to his Lordship and Jury, whether they ought not to answer for it.

Then Sir Barth. Shore (the Recorder) spoke on the same Side, saying, He thought the In∣formation proved, for that no Answer had been made to it; The Answer made being but Ar∣gumentative, and taken either from the Persons of the Defendants, as Peers, (who could have Page  463no right to Petition libellously) or from the Form of it's being a Petition, which could no more excuse them, if it were scandellous, than any other. The Author of Julian the Apo∣state having as much right to publish his Book, as the Bishops had to deliver this Libel to the King. [For which comparison he was checked by Mr. Justice Powel, who told him, it was the Birth∣right of the Subject to Petition.] And that it was as lawful for the City of London to Petition for the Sitting of a Parliament, as it was for the Bishops to give Reasons for their Disobedience to the King's Command. And if their Petition was reckoned Libellous, in saying that what the King had done in Dissolving the Parliament, was an Obstruction of Justice; what other Con∣struction can be made of the Bishops saying, that the King's Declaration is illegal? And if they were so severely punished as to lose their Charter for what they did, the Bishops ought to have the like Condemnation.

Then Mr. Serj. Trinder spoke in defence of the King's Dispensing Power; alledging Sir Ed∣ward Hales Case, (which the Ld. Ch. Justice told him was beside the Matter); Then he condem∣ned the questioning of the Bishops Counsel of the King's Power, by referring themselves to the Declarations in Parliament, as if the King's Au∣thority was under the Suffrages of a Parliament; that yet no such Declaration was produced, they being mistaken, and therefore it is in the nature of false News, which is a Crime for which the Law will punish them.

Then the Ld. Ch. Justice summ'd up the Evi∣dence; and in conclusion gave his own Opinion, that the Bishops Petition was a Libel.

Then Mr. Justice Powel gave his Reasons why he thought it no Libel, and that the King had no Dispensing Power.

Next Mr. Justice Allybone endeavoured to make out, and declared his Opinion that it was a Libel. [He refused to speak to the Prerogatives of the King, as the Ld. Ch. Justice had done before him.] —Then Wine was sent for, for the Jury.—And upon request, they were allowed to have along with them a Copy of the Information, the Ori∣ginal Petition, and the Declarations under the Great Seal. But the Journals were not allowed them, Mr. Sollicitor saying, they were no Evi∣dence.

[Then the Court arose, and the Jury went together to consider of their Verdict, and staid together all Night, without Fire or Candle.]

On Saturday, June 30. 1688. about Ten of the Clock in the Morning, the Bishops came a∣gain into the Court, and immediately after the Jury were brought to the Bar. And their Ap∣pearance being taken, they delivered in their Verdict, Not Guilty. [At which there were se∣veral great Shouts in the Court, and throughout the Hall.]

Mr. Sol. Gen. taking notice of some Persons in the Court that shouted, moved very earnestly that they might be com∣mitted: Whereupon a Gentleman of Grays-Inn was laid hold on, but was soon after discharged. And after the shouting was over, the Ld. Ch. Justice reproved the Gentleman, saying, he was as glad as he could be that the Bishops were acquitted; but his manner of rejoicing here in Court was indecent; he might rejoice in his Chamber, or elsewhere, and not here.

Then asking Mr. Attorny if he had any thing more to say to the Bishops? He said, No.

[Then the Court arose, and the Bishops went away.]