Amendment I (Petition and Assembly)
Trial of the Seven Bishops for Publishing a Libel12 How. St. Tr. 183, 415 1688
[Sol. Gen.] 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 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 were as 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?
L. C. J. 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.
Sol. Gen. 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 allowable 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 any thing 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 made a very good case of it for the king, and that you, gentlemen, will give us a verdict.
Just. Holloway. Mr. Solicitor, there is one thing I would fain be satisfied in: You say the bishops have no power to petition the king.
Sol. Gen. Not out of parliament, Sir.
Just. 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?
Sol. Gen. I'll tell you what they should have done, Sir. If they were commanded to do any thing against their consciences, they should have acquiesced till the meeting of the parliament. [At which some people in the court hissed.]
Att. Gen. This is very fine indeed! I hope the court and the jury will take notice of this carriage.
Sol. Gen. 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 the prince acts against prudence, honour or conscience, and throw dirt in the king's face? Sure that is not permitted; that is libelling with a witness.
L. C. J. Truly, Mr. Solicitor, I am of opinion that the bishops might petition the king; but this is not the right way of bringing it in. 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.
Just. Powell. Mr. Solicitor, it would have been too late to stay for a parliament; for it was to have been distributed by such a time.
Sol. Gen. They might have lain under it and submitted.
Just. Powell. 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 shewn 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.
Serj. 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 kings 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 appear 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 not having been touched here, it is not a point of duty in my lords the bishops, as bishops, that's here inquired into. Whether they should have meddled with this or no, in this manner, 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 and 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 conscience 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 pretty [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 to the preamble, as others before me have spoke 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 that province. Now that all these should join in the petition, is a thing very uncertain. How does it construe here, whether they were all together 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 should not do this in duty to his majesty; more gentle reasons, and other kind of reasons than those that they have given.
L. C. J. Pray, brother, will you come to the matter before us?
Serj. Baldock. I have almost done, my lord.
Just. Powell. The information is not for disobedience, brother, but for a libel.
Serj. 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.
Recorder. Will your lordship please to spare me one word?
L. C. J. I hope we shall have done by and bye.
Recorder. If your lordship don't think fit, I can sit down.
L. C. J. No, no, go on, sir Bartholomew Shower, you'll say I have spoiled a good speech.
Recorder. I have no good one to make, my lord, I have but a very few words to say.
L. C. J. Well, go on, Sir.
Recorder. That which I would urge, my lord, is only this: I think, my lord, we have proved our information, and that they have made no answer to it; for the answer they have made is but argumentative, and taken either from the persons of the defendants, as peers, or from the form of its being a petition. As peers, it is said they have a right to petition to, and advise the king; but that is no excuse at all; for if it contains matter reproachful or scandalous, it is a libel in them as well as in any other subject; and they have no more right to libel the king than his 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--
Just. Holloway. Pray, good Mr. Recorder, don't compare the writing of a book to the making of a petition; for it is the birthright of the subject to petition.
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's petition was reckoned to be libellous, in saying that what the king had done in dissolving the parliament, was an obstruction of justice, what other construction can be made of my lords the bishops saying that the king's declaration is illegal? And if the matter of this petition be of the same nature with that of the city of London, your lordship can make no other judgment of it, but that it ought to have the same condemnation.
Just. Powell. 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.
Serj. Trinder. My lord, I have but one word.
L. C. J. 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.
Serj. Trinder. My lord, if your lordship pleases, that which they seem most to insist upon on the other side, and which has not been much spoken to on our side, is, that this power which his majesty has exerted, in setting forth his declaration, was illegal, and their arguments were hypothetical. If it were illegal, they had not offended; and they offered at some arguments to prove it illegal; but as to that, my lord, we need not go much further than a case which 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 made a frequent and constant practice.--
L. C. J. That is quite out of the case, brother.
Serj. Trinder. I beg your lordship's 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 parliament declarations, there was never a one, unless it be first in Richard the second's time, that can properly be called a parliament declaration, so that of the several parliaments is a matter perfectly mistaken; and if they have mistaken it, it is in the nature of false news, which is a crime for which the law will punish them. More things might be added, but I consider your lordship has had a great deal of patience already, and much time has been spent, and therefore I shall conclude, begging your lordship's pardon for what I have said.
L. C. J. 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 published, 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 the 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 made 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 no body 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 staid 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 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 great 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 shew you some records; one in Richard the second'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 shew 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 and votes, 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 wave 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.
Sol. Gen. My lord, I never gave my vote for money, I assure you.
L. C. J. 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 a 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 any thing to say to it, I suppose they will deliver their opinions.
Just. Holloway. Look you, gentlemen, it is not usual for any person to say any thing 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 every body 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.
L. C. J. 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.
Just. 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 falshood, 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, that 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 command 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 whatsoever. 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.
Just. 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 of proposition.
And I think, in the first place, that no man can take upon him to write against the actual 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 interest, 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 propositions; 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 any body 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 the 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's time, when by a solemn resolution it was declared to be a high misdemeanor, and next to treason, the king to put the penal laws in execution.
Just. Powell. Brother, I think you do mistake a little.
Just. Allybone. Brother I dare rely upon it that I am right: it was so declared by all the judges.
Sol. Gen. 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.
Just. Powell. Aye, there it is.
Just. Allybone. I tell you, Mr. Solicitor, the resolution of the judges is, That such a petition is next door to treason, a very great misdemeanor.
Just. Powell. They accompanying it with threats of the people's being discontented.
Just. 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.
Serj. Pemberton. That was a petition against the penal laws.
Just. Allybone. Then I am quite mistaken indeed, in case it be so.
Serj. 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.
Just. Powell. That is the reason of that judgment, I affirm it.
Just. 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 great 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 & 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 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.
L. C. J. Gentlemen of the jury, have you a mind to drink before you go?
Jury. Yes, my lord, if you please. [Wine was sent for for the jury.]
Juryman. My lord, we humbly pray that your lordship will be pleased to let us have the papers that have been given in evidence.
L. C. J. What is that you would have, Sir?
Sol. Gen. He desires this, my lord, that you would be pleased to direct that the jury may have the use of such writings and statute-books as may be necessary for them to make use of.
L. C. J. The statute-book they shall have.
Sol. Gen. But they can have no papers but what are under seal.
Serj. Levinz. They may have them by consent, and they may have a copy of the information.
L. C. J. They shall have a copy of the information, and the declarations under seal.
Mr. Pollexfen. If they have those, and the libel, as they call it, they will not need a copy of the information.
Att. Gen. My lord, we pray that your lordship would be pleased to ascertain what it is they shall have.
L. C. J. They shall have a copy of the information, the libel, and the declarations under the great seal.
Sol. Gen. But not the Votes of the House of Commons, nor the Journals, for they are not evidence.
L. C. J. No, I don't intend they shall.
Sir R. Sawyer. My lord, we pray they may have the whole petition.
Just. Holloway. That is, with the direction and prayer, you mean.
Att. Gen. Yes, with all our hearts.
[Then the court arose, and the jury went together, to consider of their verdict, and stayed together all night, without fire or candle.]
On Saturday the 30th day of June, 1688, about ten o'clock in the morning, the archbishop, and the rest of the bishops, came again into the court, and immediately after the jury were brought to the bar.
Sir S. Astry. Crier, take the appearance of the jury. Sir Roger Langley.
Sir Roger Langley. Here.
Crier. Vous avez, &c. And so all the rest were called, and answered. Then proclamation for silence was made.
Sir S. Astry. Gentlemen, are you agreed on your verdict? Jury. Yes.
Sir S. Astry. Who shall say for you?
Sir S. Astry. Do you find the defendants, or any of them, guilty of the misdemeanor whereof they are impeached, or not guilty?
Foreman. Not guilty.
Sir S. Astry. Then hearken to your verdict, as the court hath recorded it.--You say, the defendants, and every of them, are not guilty of the misdemeanor whereof they are impeached; and so you say all?--Jury. Yes.
[At which there were several great shouts in court, and throughout the hall.]
Mr. Solicitor General taking notice of some persons in court that shouted, moved very earnestly that they might be committed: whereupon a gentleman of Gray's-Inn was laid hold of, but was soon after discharged. And after the shouting was over, the Lord Chief Justice reproving the gentleman, said;
L. C. J. I am as glad as you can be that my lords the bishops are acquitted; but your manner of rejoicing here in court is indecent, you might rejoice in your chamber, or elsewhere, and not here. [Then speaking to Mr. Attorney, he said:]
Have you any thing more to say to my lords the bishops, Mr. Attorney?
Att. Gen. No, my lord. [Then the Court arose, and the bishops went away.]
After the revolution, complaint was made against the proceedings in this case, as in others.
I find in the Lords' Journal, that on May 1st, 1689, "The earl of Huntingdon made report from the committee of privileges, 'That the duke of Grafton, the lord Lovelace, the archbishop of Canterbury, the bishops of St. Asaph, Bristol, Peterborough, Ely, Bath and Wells, and Chichester, having been desired by the lords of the committee to cause to be brought this day before their lordships, a relation in writing of the proceedings against their lordships, in the court of King's Bench, in prejudice to the privileges of the peers in general, as well as to their persons in particular; which having not been done by any of the said lords, that it is the opinion of the committee, that the House be moved to take some effectual order therein.'
"Upon report from the lords committees for privileges, it is ordered, by the lords spiritual and temporal in parliament assembled, That Mr. Ince do attend their lordships, with an account, in writing, of the proceedings that were had, in the court of King's Bench, against the archbishop of Canterbury, the bishop of Bath and Wells, the bishop of St. Asaph, the bishop of Bristol, bishop of Ely, bishop of Chichester, and bishop of Peterborough, in Trinity term last."
But I have not discovered that any farther proceedings were had on the matter.
All the historians of this period relate the expressions of joy which this acquittal of the bishops called forth. Kennett writes as follows:
"There were immediately very loud acclamations through Westminster-hall, and the words 'Not guilty,' 'Not guilty,' went round with such shouts and huzzas, that the king's Solicitor moved very earnestly that such as had shouted in the court might be committed. But the shouts were carried on through the cities of Westminster and London, and flew presently to Hounslow-heath, where the soldiers in the camp echoed them so loud that it startled the king, who was that day entertained in the earl of Feversham's tent: insomuch that his majesty sent him out to know what was the matter. The earl came back and told the king, 'It was nothing but the soldiers shouting upon the news of the bishops being acquitted.' The king replied, 'And do you call that nothing? but so much the worse for them.' What his majesty meant by the last words he had not much time to interpret: he could only shew some indignation, that the bishops had escaped a legal penalty, and he threatened to deliver them up to the ecclesiastical commissioners. And for the two judges, Holloway and Powell, he immediately turned them out, and would have meditated some farther severity, if his following reign would have allowed it.
"This acquitment of the bishops encouraged the clergy in their honest resolutions of not reading the Declaration; but the ecclesiastical commissioners were instructed to call them to an account for it, for which purpose, on July 12, they met in the council-chamber and made an order, 'That whereas they had received information that divers rectors, vicars and curates, had omitted or neglected to read the said Declaration, to the manifest contempt of his majesty's authority-royal, they do hereby command and require all chancellors, archdeacons, commissaries and officials, to inquire strictly within their respective jurisdictions, in what churches and chapels his majesty's said Declaration was read, and in what churches and chapels the same was omitted, and to transmit an account thereof upon the 16th of August next.' The commissioners met again on that day, and finding that little or no inquiry had been made, they were much divided what to do in the matter. After a long consultation they were content to give longer time, and therefore published another order, 'Commanding all chancellors, archdeacons, commissaries, officials, and others having ecclesiastical jurisdiction, strictly to inquire of the church-wardens, as one of their articles of inquiry, at their respective visitations, (which visitations they were required to hold and keep before the 15th day of November next) in what churches and chapels his majesty's said Declaration was read, and in what the same was omitted, and to transmit an account thereof to them on the 6th day of December next.' But Providence prevented a return to this inquiry. The bishop of Rochester finding by this time the drift of the ecclesiastical commission, thought it inconsistent with his profession and character to act any longer in it, and therefore he wrote a letter to his colleagues, desiring to be excused from sitting amongst them."
It appears, that the "Declaration" was not read in more than seven churches in London, and two hundred throughout England. See Kennett, Rapin, Burnet, and Hume.
May 20th, 1688, being the day appointed for reading the King's Declaration in London, it was only read in some few places, as at Westminster-abbey," [Sprat being Dean. See the Introduction to the Trials for the Rye-House Plot, vol. 9, p. 362], "at Serjeants'-Inn, in Fleet-street," [a chapel, I apprehend, belonging to the Judges and other Serjeants at Law], "Mr. Hall's in Wood-street, Mr. Elliott's at Duke's-place," and some few others.
"The bishops that were for reading the King's Declaration, and dispersed it into their bishoprics, were the bishops of Durham," [Crew: he absconded for some time, but returned and took the oaths to King William.1 He was excepted out of the "Bill of Indemnity and Free Pardon," passed in 1690, but made his peace and retained his bishopric many years]. "Lincoln," [Barlow. He took the oaths to King William]. "Hereford," [Croft. He wrote "The Naked Truth." He was deprived for not taking the oaths to King William]. "Rochester," [Sprat, who was one of King James's privy councillors. See some account of him as above. He took the oaths to King William]. "Chester," [Cartwright. See some account of him, p. 27, of this Volume], and "St. David's," [Watson. He took the oaths to King William; but, in 1699, was deprived for simony. See his Case in this Collection]. Narcissus Luttrell's MS. "Brief Historical Relation," &c.
"It generally happened wherever it was read, that the congregation immediately left the church. One minister, before he began to read it, told his flock, 'that he could not refuse the order sent him to read the Declaration, but that he knew no order which obliged them to hear it.'" Rapin.
After the acquittal of the bishops on the prosecution for their petition, it appears that James entertained the design of proceeding before the ecclesiastical commissioners against them for not causing his "Declaration" to be read. No such proceedings, however, were instituted; but the ecclesiastical commissioners endeavoured to enforce the reading of the Declaration by the compelled instrumentality of the archdeacons and chancellors, of whom some undisguisedly resisted the attempt, and some less resolutely excused their non-compliance. Narcissus Luttrell relates, that on October the 5th, the king declared in council that the ecclesiastical commission was dissolved.
The Founders' Constitution
Volume 5, Amendment I (Petition and Assembly), Document 6
The University of Chicago Press
Easy to print version.