1157] for not Suspending Dr. John Sharp. "So shall your petitioner ever pray, &c." In the Council-Chamber at Whitehall, &c. Mercurii, 4 die Augusti, 1686. Present in Council, Lord Chancellor, Lord Bishop of Durham [Crew,] Lord Treasurer [Earl of Rochester,] Lord Bishop of Rochester, [Sprat; see vol. 9, p. 362] Lord President [Earl of Sunderland], Lord Chief Justice Herbert. UPON my Lord Bishop's appearing before them, according to a summons sent unto him, the Lord Chancellor Jeffereys began, viz. Lord Chancellor. My lord bishop of London, the lords here present have received orders from the king to inspect all ecclesiastical affairs and persons; and he hath commanded us to cite you before us; and I desire you would give a positive and direct answer to it: What was the reason you did not suspend Dr. Sharp, when the king commanded, and sent you express orders so to do, and told you what It was for, viz. for preaching seditiously and against the government? lity of it; but your lordships know it is a thing altogether new to this generation, and, it may be, something may be found in it, whereby I may be instructed and directed in my answer and behaviour in the matter. But, my lord, if I may not have a copy of it, will your lordships please I may either read, or hear it read? Lord Chanc. That is a thing I cannot grant of myself, I must ask my lords commissioners' judgment; and if you will be pleased to withdraw, you shall hear it. The Bishop and all the company withdrew for a quarter of an hour; then returning, the Lord Chancellor said: My lord, all the commissioners are of opiLord Bishop. I have received such an order; and it what was done in that affair was nion, that your request is not to be granted, done amiss, and contrary to my duty, it was and that it is unreasonable. Might every one that appears here challenge the sight of our my ignorance and inadvertency, and not a wilful fault: I have been always ready to express commission, and the reading of it, all our time my duty to his majesty; and if in this particu- will be spent in the reading, and we have somelar I have not complied, it was because, as I thing else to do. The proceedings of courts in was told, I could not. I was not so shallow as this kind are never by libel and articles; 'Sato go on my own head, but took the best ad-pientem succintim ore tenus,' by word of vice I could get: I consulted those whose business it is more perfectly to understand these proceedings; all told me I could not legally do it, but by way of citation and hearing him. Lord Chanc. Ignorantia juris non excusat ;' you ought to have known the law, and it was a wonder you did not the king is to be obeyed, and if you have any reason to shew in this particular, we are ready to hear you. Lord Bishop. I knew not what would be laid to my charge, and therefore was not provided to make such a defence as I might have done; but if your lordships will give me a copy of your commission, and a copy of my charge, and allow me some time, I will endeavour to give your lordships satisfaction. Lord Chanc. My lord, I would not misinterpret your words, but shall desire you to explain their meaning. If by desiring a copy of our commission, you design to quarrel with the jurisdiction and legality of the court, I have another answer for you; but till I know your meaning here, my answer is, that no copy of the commission can be granted, and it is unreasonable to desire it; it is upon record; all the coffee-houses have it for a penny a-piece, and I doubt not but your lordship has seen it. Lord Bishop. I have never seen it, nor have I desired it for such ends, to dispute the lega mouth only; and it is a short question I ask, Why you did not obey the king? Lord Bishop. It is a short question, but requires more words to answer it. I pray your lordships to consider I am a peer, a bishop, and have a public trust, though unworthy, under a public character; and I would behave myself as becomes one in these capacities. Lord Chanc. We know very well your lordship's quality and character, and are willing to shew all due respect to your lordship; but yet we must have a due regard for the king and government too: his majesty must not be neglected. Lord Bishop. My lord, I suppose there is no appeal from the court; and when a man is would to be condemned at one bar, and is in danger of being knocked down at one blow, you think it unreasonable he should not have some time to make his defence. Lord Chanc. My lord, I suppose their lordships will be willing to grant some time: I pray what time does your lordship desire? Lord Bishop. My lord, it is the assize-time, and most of the counsel, upon some occasion or other (either business or diversion) are in the country I pray you, my lord, I may have till the beginning of the term. Lord Chanc. Hah! That is unreasonable: his majesty's business cannot admit of such delays; methinks a week should be enough: what say your lordships? Is not a week enough? The Commissioners being asked, signified by the Chancellor that a week was enough. Lord Bishop. Since your lordship will grant no more, I will ask no more. Lord Chanc. Adjourn until Monday next, the 9th of August, 1686. Upon the 9th day his lordship came, attended with his nephew, the earl of Northampton, his brother in law, sir John Nicholas, and his brother, sir Francis Compton, &c. There being present in council, the same as before in the same proceedings. Lord Chanc. My lord, we are here to hear your reasons. Lord Bishop. My lord, I have lost no time for preparing my answer, but am not so ready as I might have been, because I could not light of the commission your lordship told me was upon record, and in every coffee-house, but employed a whole week to search for it, and could not have a sight of it until last night: if your lordship doubts the truth of this, I have the person ready to make oath here of it. Lord Chanc. My lord, you are a person of honour, and we will not question the truth of what you say, there needs no oath: but, my lord, I must tell you, that we will not admit of any quarrelling with our commission, we are well assured of the legality of it, otherwise we would not be such fools as to sit here. Lord Bishop. My lord, I have other reasons why I desire a sight of your commission; it may be, it may not reach me, being a peer and a bishop; and it may be, it may not reach this particular case; and therefore I desire a sight of it, in regard I could not see it until the last night. I have not had time to take advice what to answer; if your lordship will not be satisfied, I must give such an answer as I have prepared; but it is my desire to have longer time for it. Lord Chanc. Is this all you have to say? Lord Bishop. This is the first thing: I do not desire to prolong the time, the necessity of the case requiring it, the counsel being out of town in whom I think to confide. Lord Chanc. If your lordship will withdraw, we will give you an answer. [He withdrew for a quarter of an hour.] Lord Chanc. My lord, as I formerly tol you, we will not endure any quarreling at our commission; it will be an odd thing in us to give you time to pick holes in it; but we are willing to pay all due respects to your lordship: what time do you require ? Lord Bishop. I shall submit to your ships; but I hope a fortnight will not be unreasonable. To which my Lord Chancellor added, Lord Chanc. My lord, when I told you our commission was to be seen in every coffeehouse, I did not speak with any design to reflect on your lordship, as if you were a haunter of coffee-houses. I abhorred the thoughts of it, and intended no more by it, but that it was common in the town. [Note, When the bishop spake concerning the commission, sir Thomas Clarges spake with a loud voice, saying Well put, well put ; my lord speaks nothing but truth.' There was also another gentleman, sir John Lowther of Lincolnshire, who as he was coming away in the crowd, said, There are some who have represented me as a Papist, but the contrary shall appear; I will not be afraid, nor ashamed, to vindicate my lord bishop's cause before the commissioners themselves.'] Tuesday, August 23, 1686. There being pre sent in council the same as in the former proceedings: The lord bishop attending, the proceedings were as follow: Lord Chanc. My lord, we are now ready to hear your lordship's answer. Lord Bishop. My lord, notwithstanding the time hath been very short, considering the weightiness of the matter, and the absence of many of the learned counsel, I have taken what advice I could, and have consulted those that are very learned in the laws. I hope there will be no misinterpretation of my words, I do not intend any thing which is derogatory to the king's supremacy, that is undutiful to his majesty, or disrespectful to your lordships. My counsel tells me, that your proceedings in this court are directly contrary to the statute law, and are here to plead it, if your lordships will admit them. Lord Chanc. We will neither hear your lordship nor your counsel in the matter; we are sufficiently satisfied of the legality of our commission, as we often told you. Lord Bishop. My lord, I am a bishop of the church of England, and by all the law in the Christian church in all ages, and by the particular law of this land, I am, in case of offence, to be tried by my metropolitan and suffragans: I hope your lordship will not deny the right and privilege of Christian bishops. Lord Chune. My lord, you know our proceedings are according to what has been done formerly, and that we have an original jurisdiction: this is still questioning our court. Lord Bishop. It is partly. Lord Chanc. Nay, it is absolutely so. Lord Bishop. My lord, I hope you will interpret every thing in your commission in falord.vour of the person that is brought before you : I humbly conceive that your commission doth not extend to the crimes laid to my charge, for you are to censure faults which shall be com mitted this that I am accused of, was before the date of your commission. Lord Chanc. Agreed: You shall have it until to morrow fortnight in the morning. It is apparent by the letter, that the king did not take cognizance of the cause, for the words are, being informed that Dr. Sharp, &c.' So that it could not be an absolute suspension; for that supposeth a proof of the crime charged | upon him: then let us consider the words themselves : Lord Chanc. I confess there is such a clause, but there are general clauses, that take in things that are past, as well as those that are to come. Hath your lordship any thing more? Lord Bishop. My lords, protesting in my own right to the laws of the realm as a subject, and the rights and privileges of the church as a bishop, I shall, with your lordships' leave, give you my Answer. Which was accepted; and the bishop withdrew, and left Dr. Sharp's Petition, which the king had refused to accept. Lord Chanc. My lord, we have read the paper. Lord Bishop. My lord, it is Dr. Sharp's petition to the king. Lord Chanc. My lord, be pleased to take it again, we are not concerned in it; will you please that your lordship's Answer be read? Lord Bishop. Yes, if your lordship please. My lord, I have this to say further, what I did in this matter was Jurisperitorum Concilio. I consulted my counsel, who is the judge of my courts, as well as others; and the law says, That what is done by the advice of counsel, shall not be interpreted to be done maliciously, or obstinately. The law, in this case, requires, that if a prince require a judge to execute an order, which is not agreeable to the law, he shall Rescribere et Reclamare Principi.' Now, my lord, I conceived I acted in this according to my duty, for I wrote back to my lord president, in as becoming words as I could; and acquainted him, that an order to suspend before citation and hearing the person, is against law, and expected his majesty's further pleasure. In the next place, my lords, I did in effect what the king commanded to be done; for I advised Dr. Sharp to forbear preaching till his majesty had received satisfaction concerning him; and accordingly he hath forborn in my diocese. Lord Chan. My lord, will you have your paper read? Lord Bishop. Yes, if your lordship please. Which contained the King's Letter, and the Bishop's Answer thereto. That you suspend him from preaching. Now, my lords, we have no such thing in our laws; so that the meaning must be silencing of him. Where there is an absolute suspension, there ought to be citation, form of proceeding, judgment and decree; to act otherwise is contrary to the law of God, of nature, of all nations in all ages, and was never known in the world. Lord Chanc. I am loth to interrupt you; but I must tell you, this is an unnecessary harangue; we know that it was not an absolute suspension: but the question is, whether the bishop could suspend him from preaching? Dr. Oldish. Then, my lords, I have gained another point; if it were only silencing him, the question is, whether the bishop did not execute the king's commands? I think he did, and in such a method as is observed in our courts. When any eminent person is accused, the judges send to him by a letter; and if he appears and complies with the judges order, the | law is satisfied. Judicium redditur in invitum non in volentem: The bishop did send for Dr. Sharp, shewed him the king's letter, adviseth him not to preach till the king had received satisfaction; in which he promised to observe his lordship's command, and hath not preached to this day; so that his majesty's command was, in effect, fulfilled. My lord, there is the like proceedings in the common law; for if an attorney takes a man's word for his appearance, there lies no action against the attorney. Lord Chanc. Cujus contrarium:' There lies an action of escape against the attorney. Dr. Hodges. My lords, the matter of fact hath been stated, and the question is, whether the bishop hath been disobedient to the king's command? It appears that he has not; because, upon the receipt of his majesty's letter, he required the doctor not to preach, and he Lord Bishop. My lord, I desire your lord-hath obeyed him in that which the king ship would hear my counsel, by whom you may have more clear and full satisfaction concerning what I have said. Lord Chanc. Hath your lordship any more to say? Whereupon the Bishop was desired to withdraw, and after half an hour, he and his counsel were called in; who were Drs. Oldish, | Hodges, Price, and Newton. A brief account of what they pleaded. Dr. Oldish. My lord, the question before your lordship is, whether the bishop of London hath been disobedient to the king's command? Concerning which, it must be considered? First, What was commanded to be done? Secondly, What he did in obedience to it? Thirdly, What judgment ought to have been given by him?” | commanded. To suspend him the bishop could not do, the act of suspension is a judicial act: the king writes to him as to a bishop, to suspend as a bishop and as a judge, which could not be done without the hearing of the cause. If the prince sends to a person that is not a judge, that is only in a ministerial office, that officer is to execute his commands: but when the king commands a judge, he commands him to act as a judge. This is no light matter the doctor is accused of; it is for preaching sedition and rebellion, which requires a severe censure. And if the bishop, as a judge, had suspended him, he had begun at the wrong end, for this had been judgment before process: in this cause there ought to have The bishop withdrew for half an hour and was then called in. L. Chanc. We will be here again on Wednesday next, and I desire your lordship to be here again about ten in the forenoon. Lord Bishop. My Lord, I desire that care may be taken concerning the minutes, which are taken by the clerks, of what hath passed, and that I may not be misrepresented to the king by the mistake of the penman. been a citation, our books giving many in- Dr. Price. The question is ut supra: A citation is jure gentium, and can never be taken away by any positive command or law whatsoever: the bishop hath obeyed the king so far as he could, and did rescribe, expecting his majesty's further pleasure. If the bishop could have suspended him, it must have been done in aulá; but in regard it was only silencing him, which was required, it might be done in a private room: the advice of a bishop is in some sense an admonition, which is a judicial act, and this was given by a bishop, and obeyed by the doctor. Dr. Newton. My lord, the question is ut supra, the bishop hath not been disobedient. As in nature no man can be desired to do that which is impossible, so no man can be obliged to do an unlawful act. (Id non fit quod non legitime fit.') This rule obliges all men, at all places, and at all times. The charge against Dr. Sharp is of a very high nature; and he desired to be heard before he was condemned. Lord Chan. My lord, you need not fear it ; I hope you have a better opinion of us; there shall be no advantage taken by them or us. Bishop Roch. There shall be no advantage taken, but all imaginable care taken concern Note, When the counsellors were pleading, Dr. Pinfold, the king's advocate, stood at the chancellor's elbow, and took notes; by which it was expected that he should make a reply, but he said nothing: and it is supposed that he staid with the council, when the bishop withdrew, and gave them reasons for his silence. Die Luna, 6 September, 1686. There being present in council the same as in the former Proceedings. Lord Chanc. My lord, pray sit down. You were desired to appear this day to hear your sentence, which (to prevent mistake) we have ordered to be put in writing. Lord Bishop. My lord, may I have leave to speak before sentence is read? L. Chanc. My lord, we have heard you and your counsel already. Then the following Instrument, whereby the 'siastical Affairs.' My Lords, the bishops are Custodes Canonum, and therefore must not break them them- 'Whereas Henry, lord bishop of London, selves. I affirm, the bishop was so far from hath been convened before us for his disobebeing disobedient, that he was obedient to the 'dience, and other his contempts mentioned king; For where he did rescribere, and heard in the proceedings of this cause; and the not the further pleasure of the king returned, 'said bishop being fully heard thereupon, We. he ought to conclude, the king was satisfied 'have thought fit, upon mature consideration with what he had written, according to his of the matter, to proceed to this our definitive duty, and the king had altered his commands. sentence, declaring, decreeing, and proA citation, as your lordships have heard, is nouncing, that the said Henry, lord bishop according to all laws, in all places, in all judi- of London, shall for his said disobedience and cial acts; there is something to be done ac- contempt, be suspended during his majesty's cording to law, and somewhat according to 'pleasure; and accordingly we do, by these the discretion of the judges, and for that rea-presents, suspend him the said lord bishop son, as well as these, the offenders ought to of London, peremptorily admonishing and rebe cited before him; that which was in the bishop's power to do, he hath done, and ittion and execution of his episcopal office, and was in effect what the king commanded to be done. Lord Bishop. If through mistake I have erred in any circumstance, I am ready to beg his majesty's pardon, and shall be ready to make any reparation I am capable. quiring him hereby, to abstain from the func from all episcopal and other ecclesiastical 'jurisdiction, during the said suspension, upon 'pain of deprivation and removal from his bishopric. Given under our hand and seal the 6th day ' of September, 1686. Sealed with the seal day of September, ' under our seal this Dr. Sharp was also suspended about the same time, but he was soon after restored to the exercise of his function; and when the king received advice of the prince of Orange's intended expedition, the bishop's suspension was taken off.* * Crew and Sprat [two of Bishop Compton's judges] together with White, Bishop of Peterborough (see the Case of the Seven Bishops A. D. 1688) were appointed commissioners to exercise all manner of ecclesiastical jurisdiction within the diocese of London during the sus pension of the bishop. "Dr. Sharp was likewise judicially suspended, but in pretended mercy was soon after restored to the exercise of his function." Kennett, who in a note adds, that he, by means of Mr. Pepys, obtained this restoration for Sharp, 3 Complete History, 483, 2d Edition. 350. The Trial of Sir EDWARD HALES, bart.* for neglecting to take the Oaths of Supremacy and Allegiance, with his Plea thereto, upon the King's dispensing with the Stat. 25 Car. 2, and the Opinion of the Judges thereupon. 2JAMES II. A. D. 1686.† Pasche, 2 Jac. 2. In the King's-Bench. Arthur Godden Plaintiff, in an Action of Debt of 5001. grounded upon the Act of 25 Car. 2, for preventing Dangers from Popish Recu sants. Sir Edward Hales, bart. Defendant. Nov. 1 Jac. 2, at Hackington in Kent, was admitted to the office of a colonel of a foot-regiment. That being a military office, and a place of trust under the king, and by authority from the king. And the defendant held that office by the space of three months, next after the 28 Nov. THE plaintiff declares, That the defendant, 1Jac. 2. after the first day of Easter term 1673, sc. 28 It appears by the Case of the Seven Bishops that he was at that time lieutenant of the Tower, and when king James, on the 10th (Hume says the 12th) of December, 1688, departed from London, Hales accompanied him. The king was disguised as Hales's servant. And from thence, till the time of this action et seq. of this Collection. Farther particulars are related in the following detached passages in Fountainhall's Decisions: "May 22, 1685. A commission from his majesty is read to the earl of Dumbarton, to command our forces. Nota, He is Roman Catholic, and takes not the test. His hazard is only his lifeThis was one of the early steps taken by rent escheat, which if any attempted to seek, king James for the advancement of Popery. would be gifted to himself. If the penalty of the Whether he had at the commencement of his act had been made treason, and declared irremisreign, a fixed design to establish that religion,sible, it would have been more certain: but it was has lately been much discussed in Mr. Fox's Historical Work, Mr. Rose's Observations upon it, and Mr. Serj. Heywood's Vindication. As to the measures which James the Second adopted in Scotland in favor of the Papists, See the King's Letter and Proclamation of February the 12th, 1687, the Council's Answer of February the 24th, and the King's Letter of March 31st, in the same year, vol. 10, pp. 735, alledged, that encroached on the king's prerogative; and when a country is in combustion, Papists or any may quench it." "October 20. The Synod of Edinburgh met, where Mr. Monro the first minister of Stirling preached. There was a report made from the Presbytery of Haddington, that sir John Seton of Garmilton had some servants who had been debauched to apostatize and make defection |