My Lord , I pray that the Writ and Retorn may be read , by which my Lords the Bishops are brought hither .

Read the Retorn .

I Sir Edward Hales Baronet , Lieutenant of the Tower of London , named in the Writ to this Schedule annext , To Our M●… Serene Lord the King do most humbly certifie , That before the coming of the said Writ , to wit , the Eighth day of June , in the Fourth Year of the Reign of our Lord James the Second , King of England , &c. William Lord Arch-bishop of Canterbury , William Lord Bishop of St. Asaph , Francis Lord Bishop of Ely , John Lord Bishop of Chichester , Thomas Lord Bishop of Bath and Wells , Thomas Lord Bishop of Peterborough , and Jonathan Lord Bishop of Bristol , mentioned in the aforesaid Writ , were committed and delivered to , and are retained in my Custody ; by Vertue of a certain Warrant under the Hands and Seals of George Lord Jeffries , Baron of Wem , Lord High Chancellor of England , Robert Earl of Sunderland , Lord President of the Privy Council of our Lord the King , Henry Lord Arundel of Warder , Keeper of the Pivy Seal of our said Lord the King ; William Marquess of Powis , John Earl of Mulgrave , Lord Great Chamberlain of England ; Theophilus Earl of Huntingtou , Henry Earl of Peterborough , William Earl of Craven , Alexander Earl of Moray , Charles Earl of Middleton , John Earl of Melfort , Roger Earl of Castlemain , Richard Viscount Preston , George Lord Dartmouth , Sidney Lord Godolphin , Henry Lord Dover , Sir John Earnly , Knight , Chancellor of the Exchequer of our said Lord the King ; Sir Edward Herbert , Knight , Chief Iustice of the Common Bench of our Lord the King , and Sir Nicholas Butler , Knight , Lords of his Majesties Most Honourable Privy Council , to me directed , the Tenor of which Warrant follows in these Words ; viz.

THESE are in his Majesties Name , and by his Command to require you to take into your Custody the Persons of William Lord Arch-bishop of Canterbury , William Lord Bishop of St. Asaph , Francis Lord Bishop of Ely , Iohn Lord Bishop of Chichester , Thomas Lord Bishop of Bath and Wells , Thomas Lord Bishop of Peterborough , and Ionathan Lord Bishop of Bristol , For Contriving , Making and Publishing a Seditious Libel in Writing against his Majesty and his Government , and them safely to keep in your Custody until they shall be delivered by due Course of Law ; For which this shall be your sufficient Warrant . At the Council Chamber in White-Hall , this Eighth day of Iune , 1688. And this is the Cause of the taking and detaining , &c.

Well , What do you desire , Mr. Attorney ?

We pray for the King , that the Return may be filed .

Let it be filed .

By this Retorn your Lordship observes , what it is my Lords the Bishops were committed to the Tower for ; it is by Warrant from the Council Board , where , when their Lordships appeared , they were not pleased to give their Recognizances to appear here , as they were required by the King to do ; and there upon they were committed to the Tower , and now come before the Court upon this Retorn of the King 's Writ of Habeas Corpus , and by the Retorn it does appear , it was for Contriving , Writing , Framing , and Publishing a Seditious Libell against His Majesty and the Government ; My Lord , it is our Duty , who are the King's Councel , pursuant to our Orders , to prosecute such kind of Offences , and when the proper time shall come for us to open the nature of the Offence , your Lordships will then judge , what reason there is for this Prosecution ; but in the mean time , what we are now to offer to your Lordship is , The Officer of this Court has an Information against his Grace the Archbishop of Canterbury , and the rest of my Lords the Bishops , which we desire may be read to them , and pray that they may plead to it , according to the Course of the Court.

If it please your Lordship , to spare us a word for my Lords the Bishops .

My Lord , We pray for the King the Information may be read .

We define to be heard a word first .

We oppose your speaking any thing , till the Information hath been read .

But what we have to offer is proper before it be read .

Your time is not yet come , Sir Robert.

Yes , this is our proper time , for what we have to say , and therefore we move it now , before there be any other proceedings in this matter .

It is irregular to move any thing yet , pray let the Information be read first .

If your Lordship please to spare us , we will offer nothing but what is fit for us to do .

And now is our proper time for it .

Gentlemen , You do know the way of Proceeding in such Cases better than so , I am sure , as for you , Sir Robert Sawyer , you have often oppos'd any such Motion as irregular , and I hope the Case is not alter'd , however you may be ; the course of the Court is the same .

With submission , if your Lordship please to spare me a word , that which I would move , is , to discharge my Lords the Bishops upon this Return , and from their Commitment upon this Warrant .

Surely these Gentlemen think to have a Liberty above all other People ; here is an Information , which we pray my Lords the Bishops may hear read , and plead to .

Certainly , Sir Rob. Sawyer , you would not have done thus half a year ago .

What would not I have done ? I move regularly ( with Submission ) to discharge my Lords the Bishops from their Commitment ; If they are not here legally Imprisoned , now they are before your Lordships upon this Writ , then you will give us leave to move for their Discharge , before any thing else be said to them ; and that is it we have to say , to demand the Judgment of the Court upon this Return , whether we are legally Imprisoned ?

Under Favour , my Lord , neither the Court , nor they , are ripe for any Motion of this Nature yet .

If we do not move it now , it will afterwards ( I fear ) be too late .

These Gentlemen are very forward , but certainly they mistake their time ; this is a Habeas Corpus that 's brought by the King , and not by the Prisoners ; and therefore they are too soon , till they see what the King has to say to them .

Your Lordship cannot as yet be moved for your Judgment about the Legality of this Commitment , because this Writ was granted upon our Motion , who are of Councel for the King , and upon this Writ they are brought here : and what is it we desire for the King ? Certainly nothing but what is Regular ; we have here an Information for the King against my Lords , and we desire they may plead to it .

Good my Lord , will you please to hear us a little to this Matter .

Brother Pemberton , we will not refuse to hear you by no means , when you speak in your proper time , but it is not so now ; for the King is pleased , by his Attorney and Sollicitor , to Charge these Noble Persons , my Lords the Bishops , with an Information , and the Kings Councel call to have that Information read , but you will not permit it to be read .

Pray my Lord spare us a word : if we are not here as Prisoners regularly before your Lordship , and are not brought in by the due Pro●… of the Court , then certainly the Kings Councel , or the Court have no Power to charge us with an Information ; therefore we beg that you will hear us to that , in the first place , whether we are Legally here before you ?

These Gentlemen will have their proper time for such a Motion hereafter .

No , Mr. Soll. this is , without all Question , our only time for it , we shall have no time afterwards .

Yes , you will , for what do we who are of Councel for the King now ask of the Court , but that this Information may be read ? when that is done , if we move to have my Lords the Bishops plead , then they may move what they will ; but before we make that Motion , they cannot break in upon us with their Motion : and with Submission to your Lordship , whether my Lords the Bishops were duely Committed , is not yet a Question .

But it is , and this the fittest time for it .

Pray will you hear us quietly what we have to say , and then answer us with Reason , if you can ; I think we are in a proper way , but they are not my Lord ; for ( as I said , ) my Lords the Bishops are brought by the Kings Writ upon our Motion for the King , not upon theirs , and now we have them here before the Court , We for the King would charge them with an Information ; which Information , that they and the Court may know what it is they are charged with , we pray it may be read to them by the Clerk ; and when it is read , let these Gentlemen say what they will for them , they shall have their time to speak ; but certainly they ought not to obstruct the Kings Proceedings , nor oppose the Reading of the Information to these noble Lords , who are brought here in Custody into Court , to this very purpose , that they may be charged with this Information .

But we have somewhat to say , before you can come to that , Mr. Sollicitor .

You ought not to be heard as yet .

Under favour we ought to be heard .

My Lord , Mr. Sollicitor has opposed our being heard , but we now desire he would hear our answer to it , and that which we have to say , is this , That my Lords the Bishops are not here Regularly in the Court to be charged with an Information ; and if the Law be not with us in this point , as we doubt not to make appear it is , no question but when your Lordship has heard what we have to say , you will give a Right Rule in it : My Lord , we say , that by the Rules of Law , no man ought to be Charged with an Information or Indictment , by the Express Statute of Edward the Third , unless he come into Court by Legal process ; that is a standing Rule , and the practice of this and all other Courts is pursuant to it ; Now in this Court you have several processes that go out of this Court , and he that comes as taken by vertue of a Capias , or an Attachment after a Summons , or by Venire in the nature of a Subpoena ; I say , he that comes in upon these processes , may be Charged with an Information ; but where a person is in Prison , Committed by another Jurisdiction , and another Authority , then that of this Court ; when the ●…risoner is brought here by Habeas Corpus , the first thing the Court has to do , is to enquire whether he be Legally Committed ; to that end the Return is filed , and the party has leave to make his Exceptions to it , as we do in this Case . My Lords are brought here upon a Habeas Corpus , the Return of which has been read , and now the Return is filed , we are proper to move , that my Lords may be discharged ; for you now see what they are Committed for ; it is for a Misdemeanour in making and publishing a Libel , that 's the matter for which they are Committed ; and it appears by the Return likewise , that they who are thus Committed are Peers of the Realm , for so my Lords the Bishops all are , and for a Misdemeanour they ought not by Law to have been Committed .

You go too far now , Sir Robert Sanyer , I would willingly hear you whatsoever you have to say ; but then it must be in its due time .

This very discourse ( indeed I have heard ) has pass'd up and down the Town for Law ; We may see now whence they had it .

I know it has heretofore been urged by me , but denyed by them who now urge it , and I am glad that they now learn of me to tack about .

Look you Gentlemen , do not fall upon one another , but keep to the matter before you .

So we would , my Lord , if the Kings Councel would let us ; First , we say , we being brought here upon a Return of a Habeas Corpus , there was neither at the time of the Commitment Cause to Imprison us , nor was there by the Warrant any Cause to detain us in Prison ; and for that , besides what has been hinted at , we say further , that here it is returned , that we were Committed by such and such Persons , Lords of the Privy Council ; but the Return doth not say , that it was done by them , as Lords of the Privy Council , which must be in Council ; for if it be not in Council , they have not power to make such a Warrant for the Commitment of any Person , and that we stand upon ; here is a Return that is not a good Return of a Legal Commitment , and therefore we pray my Lords may be discharged .

Pray , my Lord , spare me a word , that is the thing we humbly offer to your Lordships Consideration ; and under Favour , I think we are proper both as to the Matter , and as to the Time ; the Return is now filed before you : if by this Return there appears to have been such a Cause to Commit these Lords to Prison , as is Legal , then we acknowledge they may in a Legal Course be brought to answer for their Offence ; but , with Submission , it appears not by any thing that is in this Return , that my Lords the Bishops were Committed by the Order of the Privy Council . All that is said , is , That they were Committed by my Lord Chancellor , and those other Persons , named Lords of the Privy Council ; which we conceive is not a good Return , for they can do nothing as Lords of the Privy Council , except only as they are in Council , and by Order made in Council , except that do appear , they have no Power to Commit ; then take the Case to be so ; here is a man Committed by one that has no Authority to Commit him , and he is brought by Habeas Corpus into this Court , what shall the Court do with him ? Shall they charge him with an Information ? No , it does appear that he was never in Custody , but under a Commitment , by those who had no Legal Power to Commit him ; and therefore he must be discharged ; and that we pray for my Lords the Bishops . What the Kings Councel may have to say to them afterwards , by way of Information or otherwise , they must take the Regular Methods of the Law to bring my Lords the Bishops to answer ; but as the Case stands here before you , upon this Return , it does appear , they had no Authority to Commit them , by whose Warrant they were Committed ; and therefore this Court has nothing to do but to discharge them .

I beg your Lordships leave to say one word farther on the same side , I think with humble Submission , this is the most proper time for us to make this Motion , for here is a Habeas Corpus Returned , this Return is filed , and then the Kings Councel move to Charge my Lords the Bishops with an Information , that Motion of theirs ( we say ) is too soon , unless my Lords are here in Court , I mean Legally in Court ; for no man is in Court so as to be liable to be charged with an Indictment , or Information , that is not brought into Court by Legal process , or as a prisoner upon a Legal Commitment ; then , my Lord , with humble submission , we say , that it doth appear by this Return , that my Lords the Bishops are not here Legally in Court , because this Commitment of theirs was not a Legal Commitment ; and two Objections we have to it , The one is , that the Persons Committing had no Authority to commit , for the Return says , that it was by Vertue of a Warrant under the Hands of such and such , being Lords of the Council , and they ( we say ) have no Authority to do this ; The other Objection is , that the Fact for which they were committed , they ought not to have been Imprisoned for : the Fact charged upon them is in the nature of it a bare Misdemeanour , and for such a Fact it is the Right of my Lords the Bishops ( as Peers of the Realm ) that they ought to be served with the usual Process of Subpoena , and not to be committed to prison . These are the two Objections that we have to this Return , and this is ( under favour ) the proper time for us to make this Objection , before the Kings Councel can charge my Lords the Bishops with an Information .

What say you to it , Mr. Attorney ?

With submission , my Lord , these Gentlemen have out of course and preposterously let themselves in to this Discourse , and when all is done , we must Recurr to that which we moved to your Lordship before , to desire that your Lordship would order the Information to be read , and when we call my Lords to plead to the Information , then will be their proper time to make this Objection ; for 't is a strange thing certainly for men to make Objections before they know what it is that they are charged with ; They say , the ground of their Motion is , because my Lords the Bishops are here in Court upon the Return of an Habeas Corpus , and therefore they come in upon a Commitment ( as they say ) for that which they ought not to be committed for at all , and we cannot charge them unless they be properly in Court. Now for that it is true , if that Commitment of theirs were the only thing that was here before the Court , then the Court would , if that Commitment were Illegal , discharge them of that ; but when a man is present here in Court , brought into Court , let him come how he will , he is not to have any longer time then that Instant to appear to , and be charged with the Information ; 'T is true , upon a Subpoena , which is in the Nature of a Summons , there a man hath ( as it were ) an Essoyn , and may make his Excuse , and he shall have time ; but when he is present in Court , either as a Person priviledged , as an Officer , or as a Prisoner , he shall be charged presently ; and these Gentlemen are not to let themselves into Invectives against the Commitment , thereby to keep off their being charged with the Information . Besides that , it is strange these Gentlemen should know the Priviledge of my Lords the Bishops as Peers , better then all the Lords of the Council , who are most of them themselves Peers , and they that make the Objection should have considered , whether these Lords that made the Commitment , did not think themselves concerned in all the Priviledges of Peerage , as well as these seven Noble Lords ?

Is that an Answer to our Objection , Mr. Attorney ?

I say , it is a strange Objection , and I answer , 't is out of due time ; for this we say , that my Lords the Bishops being now here in Court as Prisoners upon a Commitment , and we desiring to charge them with an Information , you are not to examine the matter of their Commitment , and therefore I do insist upon it , that the Information should be read , and then you will consider , whether they are not bound to plead to it .

My Lord , I hope Mr. Attorney General will not think Legal Objections to be Invectives .

Truly I know not what you call Legal Objections , I do not think yours are so , nor do I think Legal Objections are Invectives , but I used that Expression , as very proper for what you urged against the Commitment .

Nay , Gentlemen , don't quarrel about words .

My Lord , we would not willingly have Words given us to quarrel at .

My Lord , the Question is , whether we are in the right Method of Practice , as to the Course of the Court , or they ? It may be these Gentlemen think to make us angry , and take Advantage of our being in a Passion .

Mr. Sollicitor , we desire to have our Objections answered .

Nay , if you begin to be angry , Gentlemen , we can be angry too .

I would have neither of you be Angry .

It seems they would have an Answer to their Objections , but will not suffer us to give it ; they would first examine whether my Lords the Bishops have been duly Committed , that ( we say ) is not to be done by the Court as yet ; your Lordship sees they are actually in Custody , by a Commitment of the Lords of the Council , that appears by the Return before your Lordship , and for what they were Committed , what do we now pray for the King ? First , we move for a Habeas Corpus , then that this Information may be read , and all is in Order to bring this Fact , ( for which they were Committed ) to a Trial ; 't is said upon the Return , they were sent to the Tower , for Contriving , Writing , and Publishing a Seditious Libel against the Kings Person and Government , which ( I think ) is Crime enough for a man to deserve to be Committed for ; they would have you to discharge these Lords from this Commitment , ( the Return , as they say , being not Legal ) before the Information be read : But we think their Motion is Irregular , for here is a Crime charged in the Commitment , and upon that Commitment they are here now as Criminals before your Lordship ; and Mr. Attorney has exhibited an Information for the King , which is in the Nature of a Declaration at the Kings Suit ; and that in this Court , which is the Supreme Court now in being for the Trial of Matters of this Nature . We will come to that Question , whether they were legally Committed , when there is a proper time for it ; but now we find my Lords the Bishops in Court , upon a Commitment for a great Crime ; I repeat it again , It is for Contriving , Writing , and Publishing a Seditious Libel against the Kings Person , and against the Kings Government ; and whether the Kings Counsel shall not have leave to make out this Charge by an Information , sure can be no Question at all in this Court ; I hear them mention the Statute of Edward the Third . But that is not at all to the purpose , That is but what was offered in another Case that may be remembred , and offered by way of Plea , and pressed with a great deal of Earnestness , but Rejected by the Court ; and now what could not be receiv'd then by way of Plea , these Gentlemen would by their Importunity , have you receive by way of Parole at the Bar ; I suppose the Design is to entertain this great Auditory with an Hara●…gue , and think to perswade the weak men of the World , ( for the wise are not to be imposed upon ) that they are in the Right , and we in the wrong ; under Favour my Lord , we are in the Right for the King , we desire this Information may be read , and let them plead what by Law they can to it , according to the Course of the Court ; but that which they now urge , is untimely , and out of Course .

My Lord , we offer this to your Lordship —

Why Gentlemen , you have been heard before your time already .

Pray , my Lord , give us leave to answer what the Kings Counsel have objected .

The Kings Counsel have answered your Objections , and we must not permit Vying and Re-vying upon one another ; if you have no more to say , but only as to the Matters that have been urged , you have been heard to it on both sides already .

I would , if you please , answer what has been objected by the Kings Counsel , and state the Case aright .

Brother Pemberton , I do not apprehend that the Objection you make against this Commitment has any weight in it . The Objection ( as I take it ) is this , that these Lords were not legally committed , because they were committed ( says the Return ) by such and such Lords of the Council particularly named , and it does not specifie them to be united in the Privy Council ; now truly , with me that seems to have no weight at all ; and I will tell you why . If my Lord Chief Iustice do commit any Person , and set his Name to the Warrant , he does not use to add to his Name , Lord Chief Iustice , but he is known to be so , without that Addition ; and would you have a different Return from the Lieutenant of the Tower to a Habeas Corpus , than the Warrant it self will justifie ; the Lords do not use to write themselves . Privy Counsellors , they are known to be so ; as well as a Judge , who only writes his Name , and does not use to make the addition of his Office.

Pray , my Lord , give me leave to be heard to this , I think truly it is a weighty Objection , for , under Favour , we say , it must upon the Return here appear , that they were legally committed , before you can charge them with an Information ; I do not take Exceptions to the Warrant , because it is subscribed by such Lords , and they do not write themselves Lords of the Council , they need not do that ; and the Return has averred that they are so ; But the Return ought to have been , that it was by Order of the Privy Council , and so it must be , if they would shew my Lords to be legally committed , that they were committed by Order of the Privy Council , and not by such and such particular Persons , Lords of the Privy Council ; so in the Case put by Mr. Iustice Allybone , of a Commitment by your Lordship , or any of the Judges ; it must be returned to be by such a Warrant , by such a One Chief Iustice , for that shews the Authority of the Person committing , and then your Lordships Name to it indeed is enough , without the Addition ; But if it does not appear by the Return that there was sufficient Authority in the Person to commit , your Lordship cannot take it to be a Legal Commitment ; But now in this Case , they could have no Authority to commit but in Council ; and this Return seems to make it done by them as particular Persons , and that 's not a good Return ( with your Lordships favour ) upon which these Reverend and Noble Lords can be detained in Prison ; But what do they on the other side say to this ? Why , we shall be heard to it anon : but , my Lord , they very well know , it would be too late for that Effect which we desire of our Motion , and therefore we lay the Objections before you now in its proper time ( say we ) you ought not to read any Information against us , because we are not legally here before the Court ; and sure , that which was said by the Kings Councel , that your Lordship may charge any One that you find here in Court , which way soever he comes in , cannot be legal .

Who ever said so ?

I apprehended you said so , Mr. Attorney , or else you said nothing .

Sir Robert Sawyer , You of that side have a way of letting your selves in , to say the same things over and over again , and of making us to say what you please .

Truly I did apprehend you laid down that for Doctrine , which I thought a very strange One ; for we say , with your Lordships favour , he that is in Court without a Legal process , is not in Court so as to be charged with an Information .

My Lord , It is not the Body being found here that intitles the Court to proceed upon it , but the person accused is to be brought in by Legal Process : Then if we be not here by Legal Process , the Information cannot be charged upon us ; and if we suffer it to be read , it will be too late for us to make this Objection .

That you have all said over and over , and they have given it an Answer .

Pray , Mr. Serjeant , will you make an end ; you have repeated your Objection over and over , I know not how often , and will never be contented with our Answer .

Sir Rob. Sawyer , That which you said in Answer to the Case I put , methinks does not answer it : For if the Return be as good , that it was by a Warrant from such an one , Lord Chief Iustice ; as if my Lord Chief Iustice had added the Title of his Office to his own Name , when he subscribed the Warrant : Then this Return , That this was done by such and such Lords of the Council , must be as good , as if they had added that to their own Names .

That is not our Objection .

Your Objection has been heard , and answered ; we pray the Information may be read .

No , we are not come to that yet .

Pray , would you have an Averment by the Lieutenant of the Tower , in his Return to an Habeas Corpus , that it was done by them in the Council-Chamber .

My Lord , The Difference is this , with Submission ; a Commitment by Sir Rob. Wright , Ch Justice , is a good Commitment , and a Return of that Nature , were a good Return , because he is Chief Justice all over England , and hath Authority to commit wherever he is ; but a Commitment by such an one , or such and such Lords of the Privy-Council , cannot be a good Return of a Commitment ; because , though they be Lords of the Council , yet neither single , or apart , nor all together , have Authority to do such an Act , unless they be assembled in the Privy-Council ; there their Authority is circumscribed ; so that that must needs be a great difference between a Commitment made by a Judge , who is always so , and a Commitment by a Lord , or so many Lords , by the Name of Lords of the Privy-Council , who carry not their Authority about with them , but are limited to their Assembly in Council .

Mr. Finch , Indeed your Objection is worth something , if my Lord Chief Justice could not act but as under the character of Chief Justice ; for you are now arguing , that these Lords could not do this Act ; but as Lords of the Council , in Council ; the same ( say I ) may be said of a Commitment by the Lord Chief Justice ; he cannot do it but under the formality of his Authority , as he is Chief Justice , unless you will make it impossible for him to do any thing , but as Chief Justice , or unless you make it impossible to separate his Person from his Authority

But , Sir , the difference lies here ; the Authority of the one is general and universal , and goeth with him wherever he goes ; the other's Authority is limited to a particular sphere