A Constitution in Making (1660-1714)

by Unknown

THE TRIAL OF THE SEVEN BISHOPS (1688).

Source.—Bishop Kennet's Complete History, vol. iii., pp. 484-486. 1706 edition.

On June 15, came on the Bishop's Tryal, the most Important, perhaps, that was ever known before in Westminster-Hall; not only Seven Prelates Contending for the Rights of the Anglican Church, but Seven Peers of the Realm Standing up for the Liberties of England. The Court of King's-Bench being Sat, His Majesty's Attorney-General mov'd for a Habeas Corpus, directed to Sir Edward Hales Lieutenant of the Tower, to bring up His Grace the Lord Arch-Bishop of Canterbury, and the Six Bishops; which was granted, and the Prisoners were accordingly brought up by Water. At their Landing, they were receiv'd by several Divines, and Persons of Quality, and by a vast Concourse of People, who with repeated acclamations uttered wishes for their Deliverance. On the Bench sate Sir Robert Wright, Lord Chief-Justice, and Mr. Justice Holloway, two of the King's Creatures; Mr. Justice Powell a Protestant of great Integrity, and Mr. Justice Allibone a profess'd Papist. The Councel for the King, was Sir Thomas Powis Attorney-General, Sir William Williams Solicitor-General, Sir Bartholomew Shower Recorder of London, Serjeant Trinder a Papist, etc. And for the Prisoners, Sir Robert Sawyer, Mr. Finch, Mr. Pollexfen, Sir George Treby, Serjeant Pemberton, Serjeant Levinz, and the last and greatest, Mr. Somers. The Court was extremely fill'd, and with Persons of the Highest Quality, as if they interpos'd in the last Tryal for the Liberties of the Church and Nation; The Marquesses of Hallifax and Worcester, the Earls of Shrewsbury, Kent, Bedford, Dorset, Bullingbrooke, Manchester, Burlington, Carlisle, Danby, Radnor and Nottingham; Viscount Falconberg, and the Lords Grey of Ruthyn, Paget, Shandois, Vaughan, and Carberry. The Return and Warrant being read, the Attorney-General mov'd, That the Information might be read to the Prisoners, and that they might immediately Plead to it. This Motion the Bishops' Councel opposed; Objecting, First, that the Prisoners were Committed by the Lord Chancellor, and some other of the Privy Council, without expressing the Warrant, That it was by Order of the Privy-Council; and therefore, That the Commitment was Illegal, and that the Prisoners were not Legally in Court. And, Secondly, That the Fact for which they were Committed was such, as they ought not to have been Imprison'd for; because a Peer ought not to be Committed, in the first Instance, for a Misdemeanor. Judge Powel refused to deliver his Opinion, before he had consulted Books: But the Lord Chief-Justice, Judge Allibone and Judge Holloway Agreed, That the Fact charg'd in the Warrant, was such a Misdemeanor, as was a Breach of the Peace; and therefore, That the Information ought to be read, and the Bishops must Plead to it. After the reading of the Information, the Bishops' Councel desir'd that they might have an Imparlance till the next Term, to consider what they had to Plead. Sir Samuel Astry, Clerk of the Crown, being ask'd what was the Course of the Court? Answer'd, that of late Years, if a Man appear'd upon a Recognizance, or was a Person in Custody, he ought to Plead at the first Instance; but that he had known it to be at the Discretion of the Court to grant what Line they pleas'd. After this Answer, the Lord Chief-Justice declar'd, That the Bishops should now Plead to the Information. Thereupon the Lord Arch-Bishop of Canterbury offer'd a Plea in behalf of himself and his Brethren the other Defendants, alledging, That they were Peers of this Kingdom of England, and Lords of Parliament, and ought not to be compell'd to Answer instantly, for the Misdemeanour mentioned in the Information; but that they ought to be requir'd to Appear by due Process of Law; and upon their Appearance, to have a Copy of the said Information, and reasonable Time given them to Imparle thereupon. The King's Councel labour'd hard to have the Plea rejected. After a long Debate, Judge Powel said, He was for receiving the Plea, and Considering of it; but the rest of the Judges declar'd for Rejecting of it: So the Prisoners at last Pleaded, Not Guilty. The King's Councel pray'd, the Clerk might join Issue on behalf of the King; and desir'd the Defendants to take Notice, That they intended to Try this Cause on that Day Fortnight; adding That they were Bailable, if they pleas'd. Sir Robert Sawyer desir'd, that their own Recognizance might be taken; which was readily granted.

On June 29 the Bishops Appear'd before the Court of King's Bench, according to their Recognizance, the Appearance being still greater than a Fortnight before; for there were now present the Marquesses of Halifax, and Worcester, the Earls of Shrewsbury, Kent, Bedford, Pembroke, Dorset, Bullenbrooke, Manchester, Rivers, Stamford, Carnarven, Chesterfield, Scarsdale, Clarendon, Danby, Sussex, Radnor, Nottingham and Abington, Viscount Falconberg, and the Lords Newport, Grey of Ruthyn, Paget, Shandois, Vaughan, Carberry, Lumley, Carteret and Ossulston. This splendid Appearance was chiefly owing to the indefatigable Care and Solicitation of the Clergy, and especially of the Reverend Dr. Tennison. And indeed, the making such a Figure in the Court, had possibly some good Effect upon the Jury, if not upon the Bench: And it was afterwards observ'd by way of Jesting upon Words That the Bishops were Deliver'd by the Nobilee before, and the Mobilee behind. The Information being Read, and Open'd to the Jury; the Attorney-General, to take off the Odium of this Prosecution, and in some measure to pacify the People, who could not forbear showing their Resentments, even in the face of the Court, began with Observing, First, That the Bishops were not Prosecuted as Bishops, much less for any Point or Matter of Religion, but as Subjects of this Kingdom, and only for a Temporal Crime, as having censur'd and Affronted the King to his very Face. Secondly, That they were not Prosecuted for Omitting to do any thing; but as they were Actors in Accusing, and, in effect, of Arraigning His Majesty, and his Government &c. A great deal of Time was spent in Proving, that the Petition produc'd in Court, was the Hand writing of the Arch-Bishop of Canterbury; That it was Signed by him and the Six Bishops; And that it was the same which was Presented to His Majesty. After an Elaborate Proof of these Particulars, by the Depositions of Sir John Nicholas ... and by the Earl of Sunderland, who in Court affirm'd, That he Introduced the Bishops, and was in the Room when they deliver'd the said Petition to His Majesty. The Fact being Prov'd, the Bishop's Councel were very Learned and Eloquent in Defence of their Clients: Mr. Somers spoke last, and mention'd the great Case of Thomas and Sorrel in the Exchequer-Chamber, upon the Validity of a Dispensation; urging, That there it was the Opinion of every one of the Judges, That there never could be an Abrogation, or a Suspension (which is a Temporary Abrogation) of an Act of Parliament, but by the Legislative Power: That indeed it was Disputed, how far the King might Dispense with the Penalties in such a particular Law, as to particular Persons; but it was Agreed by all, That the King had no Power to Suspend any Law: That by the Law of all Civiliz'd Nations, If the Prince does require something to be done, which the Person who is to do it takes to be Unlawful; it is not only Lawful, but his Duty, Rescribere Principi; which is all the Bishops had done here, and that in the most humble manner: That as to Matters of Fact alleg'd in the said Petition, there cou'd be no Design to Diminish the Prerogative, because the King had no such Prerogative: That the Petition cou'd not be Seditious, because it was Presented to the King in Private, and Alone; Nor False, because the Matter of it was True; Nor Malicious, for the Occasion was not sought, the Thing was press'd upon them; Nor, in short, a Libel, because the Intent was Innocent, and they kept within the Bounds set by the Act of Parliament, that gives the Subject leave to apply to his Prince by Petition, when he is aggriev'd.

When the Councel on both sides had done, Chief-Justice Wright summ'd up the Evidence, and told the Jury, That Sometimes the Dispensing Power had been allow'd, as in Richard IId's time, and sometimes deny'd; but that it was a Question out of the present Case; If they believ'd the Petition to be the same that was Presented by the Bishops to the King, then the Publication was sufficiently Prov'd: And whatever tended to Disturb the Government, or make a Stir among the People, was certainly within the Name of Libellus Famosus; and his opinion, in short, was, That the Bishops Petition was a Libel.

Mr. Justice Holloway declar'd, That the End and Intention of every Action was to be Consider'd: That the Bishops were Charg'd with Delivering a Petition which, according to their Defence, was done with all the Humility and Decency imaginable: That the Delivering of a Petition could be no fault, it being the right of every Subject to Petition: Therefore, if the Jury were satisfy'd, They did it with no Ill Intention, but only to shew the Reasons for their Disobedience to the King's Command, he cou'd not think it to be a Libel.

Mr. Justice Powel more plainly declar'd, That He could discern no Sedition or any other Crime fixed upon the Bishops, since there was nothing offer'd by the King's Councel to render the Petition False, Seditious or Malicious. He admonish'd the Jury to Consider that the Contents of the Petition were, That the Bishops Apprehended the Declaration to be Illegal, as being founded upon a Dispensing Power claim'd by the King; and that for his Part he did not remember in any Case in all the Law, that there was any such Power in the King, and if not, the Petition could not be a Libel. He concluded with telling them, That he could see no Difference between the King's Power to Dispense with the Laws Ecclesiastical, and his Power to Dispense with any Laws whatsoever: That if this was once allow'd of, there would be no need of Parliaments, and all the Legislature would be in the King, and so he left the Issue to God and their Consciences.

Mr. Justice Allibone was prepossess'd against Protestant Bishops, and to deliver his Opinion of their Guilt, he laid down Two odd Positions; 1. 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 by what he Writes, whether True or False. 2. That no private Man can take upon him to Write concerning the Government; and therefore if he intrudes himself into the Affairs of the Publick, he is a Libeller for so doing. These Positions he back'd by a Resolution of the Judges of King James 1st's Time; That to frame a Petition to the King to put the Penal Laws in Execution, was next Door to Treason; which is a gross Misquotation, instead of a Petition against the Penal Laws, and for which, being taken up by Justice Powel and Serjeant Pemberton, little Heed was given to any thing he said afterwards. Whereupon the Jury withdrew, sat up all Night, and next Morning brought in the Reverend Prelates, Not Guilty.

There were immediately very Loud Acclamations thro' Westminster-Hall, and the Words Not Guilty, Not Guilty, went round with such Shouts and Huzza's, that the King's Sollicitor mov'd very earnestly that such as had shouted in the Court might be Committed; whereupon a Gentleman of Grey's-Inn was laid hold on, but soon discharged with this short Reproof from the Chief-Justice; "Sir, I am as glad as you can be that Lords the Bishops are Acquitted but ... you might Rejoice in your Chamber ... and not here."