Whitsuntide last, discoursing with him the second of these libels was mentioned: and soon after he sent him a box with some reams of them in it, to be dispersed, and gave him notice that he had a second paper in the press; and withal, a caution not to publish those he had sent before, till he had received that which proved to be the former libel before-mentioned. root them out of the confines of this kingdom. 7. All the judges of England are bound by their oath, and by the duty of their place, to disobey all writs, letters, or commands which are brought to them, either under the little seal, or under the great seal, to hinder or delay common right. Are the judges all bound in an oath, and by their places, to break the 13 of the Romans? "8 The engagement of the lords attending upon the king at York, June 13, 1642, which was subscribed by the lord keeper, and thirty nine peers, besides the lord chief-justice Banks, and several others of the privy-council, was in these words: "We do engage ourselves not to obey any orders or commands whatsoever, not warranted by the known laws of the land. Was this likewise an association against the 13 of the Romans? 9. A constable represents the king's person, and in the execution of his office is within the purview of the 13 of the Romans, as all men grant; but in case he so far pervert his office, as to break the peace, and commit murder, burglary, or robbery on the highway, he may, and ought to be resisted. [See what arch deacon Paley says of Divine Right.] 10. The law of the land is the best expositor of the 13 of the Romans, here, and in Poland, the law of the land there. "11. The 13 of the Romans, is received for scripture in Poland, and yet this is expressed in the coronation oath in that country; Quod 'si sacramentum meum violavero, incolo ' regni nullam nobis obedientiam præstare tenebuntur.' And if I shall violate my oath, the inhabitants of the realm shall not be bound to yield me any obedience. "12. The law of the land, according to Bracton, is the highest of all the higher powers mentioned in this text; for it is superior to the king, and made him king, (Lib. 3, cap. 26, Rex habet superiorum Deum, item legem, per quam factus est rex, item curiam suam, viz. comites et barones) and therefore by this text we ought to be subject to it in the first place. And according to Melancthon, it is the ordinance of God, to which the higher powers themselves ought to be subject. Vol. 3, in his commentary on the fifth verse, (Wherefore ye must needs be subject, not only for wrath, but also for conscience sake.) He hath these words, "Neque vero hæc tantum pertinent ad subditos, sed etiam ad magistratum, qui cum fiunt tyranni, non minus dissipant ordinationem Dei, quam seditiosi, ideo & ipsorum conscientia And further, that about six or eight months before that, the prisoner had sent him other libels to disperse and being shewed the libels mentioned in the information, he deposed, they were the same that had been sent him. His man likewise gave evidence, That he had received a box nailed up, but could give no account of what was in it, as to particulars. fit rea, quia non obediunt ordinationi Dei, id est legibus, quibus debent parere. Ideo comminationes hic posita etiam ad ipsos pertinent. Itaque hujus mandati severitas moveat omnes, ne violationem politici status putent esse leve peccatum." Neither doth this place concern subjects only, but also the magistrates themselves, who when they turn tyrants, do no less overthrow the ordinance of God than the seditious; and therefore their consciences too are guilty; for not obeying the ordinance of God, that is, the laws which they ought to obey; so that the threatenings in this place do also belong to them; wherefore let the severity of this command deter all men from thinking the violation of the political constitution to be a light sin. constitutions, which is the ordinance of God, "Corollary. To destroy the law and legal by false and arbitrary expositions of this text, is a greater sin than to destroy it by any other means; for it is seething the kid in his me ther's milk. CHAP. IV.-Of Laws. "1. There is no natural obligation, whereby one man is bound to yield obedience to another, but what is founded in paternal or patriarchal authority. "2. All the subjects of a patriarchal monarch are princes of the blood. "S. All the people of England are not princes of the blood. 4. No man who is naturally free can be bound, but by his own act and deed. 5. Public laws are made by public consent, and they therefore bind every man, because every man's consent is involved in them. "6. Nothing but the same authority and consent which made the laws, can repeal, alter, or explain them. "7. To judge and determine causes against law, without law, or where the law is obscure and uncertain, is to assume legislative power. 66 8. Power assumed, without a man's con sent, cannot bind him as his own act and deed. 9. The law of the land is all of a piece, and the same authority which made one law, made all the rest, and intended to have them all impartially executed. "10. Law on one side, is the back-sword of justice. "11. The best things, when corrupted, are the worst; and the wild justice of a state of nature, is much more desirable than law perverted, and over-ruled, into hemlock and oppression." ought to consider it only as to the matter of fact, whether he was guilty of writing or publishing them, &c.? and that the rest lay in the breast of the court to consider. Thereupon he urged, that though they might be sent, yet it was no publication, as it was laid in the indictment, because the box was nailed. But being fully answered in that point, and loose papers appearing likewise to be sent, the counsel for the king summed up their evidence to the jury, none appearing on the behalf of the prisoner. Ann Whitney, sometime servant to the pri- | soner, being sworn, gave evidence, That by her master's or mistress's direction, she was not certain which, she took a porter, and caused him to carry a box, wherein one of the libels mentioned, viz. the second, was inclosed to Mr. Belamy and that she had, by the like order, carried other papers loose some of which were the Address, &c. Aud being asked by the prisoner, how she knew that? Her reply was, That she knew it, insomuch that she had read the title, and very well remembered it. The porter that carried the box gave evidence, That the maid had hired him to carry a box to the Three Brushes, and that she went with him, and paid him according to agreement, and that he took it up in Spitalfields. After this, the messenger, who searched the prisoner's lodging with the right honourable the earl of Sunderland's warrant, being sworn, gave evidence, that he found a paper in writing, upon a table or shelf, which appeared in court to be part of the copy, or the same with the paper, entitled The Opinion, &c. he swearing, upon sight thereof, that it was the same he found in the prisoner's lodging. Then was the book of the vestry, or parish affairs of St. Paul's, Covent-garden, produced; wherein the prisoner, sometime past, had given an acquittance for money received, as an assistant curate, &c. which being compared with the paper, seemed not to differ in the hand. But no other evidence appeared in that case, than that the book had been always kept in the vestry, and for the most part under lock and key, and it being put to the prisoner, he did not greatly deny it. When for a further confirmation, John Darby, a printer, and his wife, were sworn the former deposing, That he had printed a book for the prisoner from a manuscript, and that hand was very like that of the libel produced in court: but he had never seen bim write, and therefore could not be positive that that manuscript was his own hand. As for his wife, hen evidence was, that the prisoner paying her some money, she had given him an acquittance; but that, as she conceived, he wrote all but her name; for going up stairs, he soon returned with an acquittance, which she subscribed. This being what materially was given in evidence for the king, the prisoner had leave to make his defence; who after some discourse, alledged, That he had been confined, and had not had opportunity to prepare for his defence, as not having leave to go to his counsel. To which the court replied, That he had leave upon the motion made on his behalf, to send for counsel; and that they ought not to be refused coming to him. Then he urged several other matters, which being over-ruled by the court, he proceeded to intimate, that he hoped, that seeing he was indicted for a seditious and scandalous libel, &c. the jury would consider whether those papers, they had heard read, were so or no but was told, that the jury After which, the court gave the charge, putting the prisoner, as well as the jury, in mind of the great mischief that such libels might occasion: And minded him likewise, that it was within a small matter of high-treason; and might have been raised to that degree, were not the laws, and those who managed them, tender of life, &c. After the charge was given, the jury withdrew; and returning within a quarter of an hour, brought in the prisoner guilty of the high misdemeanour. Nov. 16, following, Mr. Johnson's sentence was pronounced by sir Francis Withins, as follows; To pay 500 marks to the king, and to lie in prison till it was paid; to stand three in the Palace-yard, Westminster; on Wednestimes in the pillory; on the Monday following, day, at Charing Cross; and the Monday after at the Royal-Exchange; and to be whipt by the common hangman from Newgate to Tyburn.* After sentence was past upon him, in order to load him with the greater ignominy, the courtiers, on pretence of respect to the church, moved, That before the execution of the sen tence, he should be degraded from the order of priesthood. This ought to have been done, according to the canons, by his own diocesan, the bishop of London; but that prelate was then under a suspension himself, because he would not obey the king's orders to suspend Dr. Sharp, now archbishop of York, for preaching against Popery, in his own parish church of St. Giles's in the Fields. Dr. Crew, bishop of Durham, Dr. Sprat, bishop of Rochester, and Dr. White, bishop of Peterborough, being then commissioners for the diocese of London, in the place of the suspended bishop, were ap pointed to degrade Mr. Johnson; which they “Mr. Johnson, 1683, was tried on an Information, in the King's Bench, for writing Julian the Apostate," and fined 500 marks, and committed prisoner to the King's Beuch till he should pay it; which they knew was the same with perpetual imprisonment, since he was not able to pay that sum. Thus he was condemned and committed, to the great joy of the Papists; when in him they saw the laws of England condemned by the judges, who studied more to oblige the court than to do their duty." See London Gazette of Nov. 20, 1683. See, too, 3 Kennett, 411. 450, 2d edition. This Case is also reported, Comb. 36. 2 Shower, 488. tion was exhibited against Mr. Johnson, in the name of sir Robert Sawyer, Attorney-general, for writing and publishing a scandalous and seditious libel, intitled, An humble and hearty Address, &c. That the same term they forced him to plead, got a jury to find him guilty, and sir Francis Withins pronounced the following sentence upon him: To pay 500 marks to the king, and to lie in prison till it was paid: To stand thrice in the pillory, in the Palaceyard, at Charing-cross, and at the Old-Exchange: and to be whipt by the common hangman from Newgate to Tyburn. That the judges then in court, were the lord-chiefjustice Herbert, sir Francis Withins, sir Robert Wright, and sir Richard Holloway. That When they came to the formality of putting a bible in his hand, and taking it from him again, he was much affected, and parted with it with difficulty, kissing it, and saying with tears, that they could not however deprive him of the use and benefit of that sacred depositum. It happened that they were guilty of an omission, in not stripping him of his cassock; which, as slight a particular as it might seem, rendered his degradation imperfect, and afterwards saved him his beneûce. On the 1st of December, 1686, the sentence was put in execution; which Mr. Johnson en-apprehending it would be a scandal to the clergy dured with as firm a courage, and as christian behaviour as ever was discovered on any such occasion: though at the same time he had a quick sense of every stripe which was given him, with a whip of nine cords knotted, to the number of 517. In the first parliament after the revolution, when the House of Commons was preparing an act of indemnity, Mr. Johnson was advised by his friends to get a clause put into it, that he might have his remedy at law against such as had been his illegal oppressors. They seemed to be sensible that they were obnoxious, and could not justify what they had done. About that time the lord bishop of Durham gave Mr. Johnson and his lawyer a meeting, and made his peace with him, to their mutual satis. faction. Sir Francis Withins, who pronounced the sentence against him, sent a relation of Mrs. Johnson's to tell him a feigned story, that sir Francis lay dangerously ill, and could not die in peace, unless Mr. Johnson would forgive him: to which he reply'd, that he heartily forgave him what injury he had done to him. Some few days after, the same person brought sir Francis to Mr. Johnson, as he was walking in Westminster-hall; where sir Francis saluted him, and told him, That his Christian and kind answer had proved a reviving cordial to him. To which Mr. Johnson replied, That he heartily forgave the injury done to himself; but as he had been an enemy to his country, he hoped he would be made accountable for it: it being a common saying with him, That he was obliged to forgive his own enemies, but not the enemies of his country. The parliament taking Mr. Johnson's case into consideration, resolved, June 11, 1689, That the judgment given against him in the king's bench, upon an information for a misdeincanor, was eruel and illegal. A committee was at the same time appointed to bring in a bill for reversing that judgment: and being also ordered to enquire how Mr. Johnson came to be degraded, and by what authority it was done; Mr. Christy, the chairman, some days after, reported his case to this purpose: That in Trinity-term, 1686, an informa to have so infamous a punishment inflicted on a minister, they desired Mr. Johnson might be first degraded in order to which, being a prisoner in the King's-bench, in the diocese of the bishop of Winchester, he was summoned to appear the 20th of November, in the convocationhouse of St. Paul's, in the diocese of London, his living being within that diocese, and brought thither by Habeas Corpus: where he found the bishops of Durham, Rochester, and Peterborough, commissioners to exercise the jurisdiction of the bishop of London, during his suspension; with some clergymen, and many spectators. A libel was exhibited against him, charging him with great misbehaviours, though none were specified or proved. That Mr. Johnson demanded a copy of the libel, and an advocate, both which the bishops denied, and immediately proceeded to sentence, That be should be declared an infamous person, that he should be deprived of his rectory, that he should be a mere layman, and no clerk, and be deprived of all right and privilege of priesthood; that he should be degraded thereof, and of all vestiments and habits of priesthood. Against which proceedings Mr. Johnson protested, as being against law, and the 182d canon; not being done by his own diocesan. But his pretestation was refused, as was also his appeal to the king in chancery. "After which, they proceeded to degrade him, by putting a square cap on his head, and then taking it off: by pulling off his gown and girdle, which he demanded as his proper goods, bought with his money, which they promised to send him, but he could not get them till he paid twenty shillings. Then they put a bible into his hands, which he not parting with readily, they took it from him by force.* That on the 22d of November, the judgment in the king's-bench began to be executed with great rigour and cruelty: that Mr. Ronse, the undersheriff, tore off his cassock on the pillory, and put a frize coat upon him: that he was whipped with a whip of nine cords, knotted, which was shewed to the committee. Mrs. Johnson had also an information exhibited That * As to the forms of Degradation, see in this Collection, Vol. 1, p. 841, et seq. against her, for the like matter as that against | preferments, suitable to his services and sufher husband. ferings." "On all which, the Committee came to the following resolutions; which, on the report, were all agreed to by the House; That the judgment against Mr. Johnson was illegal and cruel: That the ecclesiastical commission was illegal, and consequently the suspension of the bishop of London, and the authority committed to the three bishops null and illegal. That Mr. Johnson not being degraded by his own diocesan, if he had deserved it, was illegal: That a bill be hrought in, to reverse the judgment, and to declare all the proceedings before the three bishops null and illegal. And that an Address be made to his Majesty, to recommend Mr. Johnson to some ecclesiastical The House likewise ordered, That in the said bill the proceedings upon the Ecclesiastical Commission should be declared void. The House presented two Addresses to the king in behalf of Mr. Johnson: but though his majesty was inclinable enough to have complied with their request, Mr. Johnson could not obtain any church preferment. Mr. Johnson, however, being a man of such merit, did not pass altogether without a reward; for the king gave him 300! a-year out of the Postoffice, for his and his son's life; besides 1,000l. in money, and likewise bestowed a place of about 100l. a year on his son. 353. The Case of WILLIAM Earl of DEVONSHIRE, on an Information in the King's Bench, for assaulting Colonel CULPEPPER in the King's Palace: 3 JAMES II. a. D. 1687. ["The following statement of this remarkable Case, and of the arguments against the Proceedings of the King's-bench, is from a volume of miscellaneous pieces by the lord Delamer, who was acquitted of a charge of High Treason in the reign of James the second, and after the Revolution was created earl of Warrington. See his Trial at p. 509, of this Volume. The book, from which we extract the case, was published as the Works of the earl of Warrington in 1694; and though the publication appears to have been posthumous, yet there is not the least reason to suspect the authenticity of the contents, as the book was dedicated to lord Warrington's son and heir by Mr. De la Heuse the gen tleman entrusted with his education. The case in question, from the stile of it, is evidently addressed to the House of Lords; but whether it was by way of speech, or how otherwise, is not explained. After the earl of Devonshire's Case we give the proceedings of the House of Lords upon it. In the article of duke of Devonshire in Collins's Peerage there are some anecdotes relative to this Case, which deserve to be remembered, though they are not noticed in the account we shall lay before the reader."] Hargrave. ON Sunday the 24th of April, 1687,* the said Earl meeting with colonel Culpepper in * See Comp. Rep. 49. The following re- Midd' ss- the drawing room in White-hall, who had formerly affronted the said earl in the said king's palace, for which he had not received any satisfaction, he spake to the said colonel to go with him into the next room, who went with him accordingly: and when they were there, the said earl required of him to go down stairs, that he might have satisfaction for the affront done him, as aforesaid; which the colonel refusing to do, the said earl struck him with bis stick, as is supposed. This being made known to the king, the said earl was required by the lord chief justice Wright, by warrant, to appear before him with sureties. Accordingly April 27, he did appear, and gave bail in 30,000l. to self in 10,000l. and his four sureties in 5,000l. appear the next day at the King's bench, hima piece, who were the duke of Somerset, lord Clifford the earl of Burlington's son, lord Dela-mere, and Tho. Wharton, esq. eldest son to lord Wharton. The earl appeared accordingly next morning, and then the court told him, that his appearance was recorded, and so he had leave to depart for that time. But upon the sixth of May he appeared there again, and being then required to plead to an information of misdemeanour for striking the said colonel in the that as he was a peer of England, he could not king's palace, he insisted upon his privilege, be tired for any misdemeanour during the privilege of parliament; and it being then within et Hibernie Regis fidei Defens', &c. 3. Vi et Armis, &c. apud Civit' Westm' in Com' Midd' infra Palat' dicti Domini Regis ibidem videlicet infra aulam dicti Domini Regis communit' vocat' Whitehall (eodem Domino Rege adtunc et ibidem in eodem Palatio suo in Regali p'sona sua existen' commoran' et manente Anglice abiding) quendam Thomam Colepepper Ar' in pace Dei et dicti Domini Regis adtune time of privilege, he refused to plead. The court took time to consider of it till Monday, et ibidem existen' ad pugnand' cum eodem Willielino Comite Devon' provocavit et caJumpniavit Anglice challenged ea intentione ad prefat' Thoma' Colepepper interficiend' et murdrand' quodq; pred' Willielmus Comes Devon' postea scilicet eisdem die et Anno apud Civit' Westm' pred' in Com' pred' infra pred' palatiu' dicti Domini Regis nunc videlicet infra pred' aulam dicti Domini Regis communit' vocat' Whitehall (eodem Domini Rege adtunc et ibid' in eodem Palatio in Regali persona sua ut prefertur existen' commoran' et' manente Anglice abiding) Vi et Armis, &c. in et sup' pred' Thoma' Colepepper in pace Dei et dicti Domini Regis nunc adtunc in eodem Palatio existen' insult' fecit et ipsum Thoma' Colepepper adtunc et ibidem Vi et Armis, &c. malitiose percussit verberavit et maletractavit ita quod de vita ejus maxime desperabatur Et all'enormia eidem Thome Colepepper adtunc et ibidem Vi et Armis, &c. intulit ad grave dampn' ipsius Thome Colepepper in manifest contempt' dicti Domini Regis nunc legumq; suar' ac contra pacem dicti Domini Regis nunc Coron' et Dignitat' suas, &c. Et modo scilicet die Lune prox' post Crastinum Ascension' Domini isto eodem termino coram Domino Rege apud Westm' ven' tam Thomas Powis Mil' Sollicitor' Domini Regis nunc general' qui pro eodem Domino Rege in hac parte sequitur in propr' p'sona sua quam pred' Willielmus Comes Devon' in propr' persona sua Et idem Willielmus Comes Devon' dicit quod ipse 19 die Maii Anno Regni Domini Regis nunc primo et diu antea et continue extunc hucusq; postea fuit et adbuc existit Comes Devon' un' proceru' magnat' et pariu' hujus Regni Angl' Quodq; ad presens Parliament' dicti Domini Regis nunc inchoat' et tent' apud Westm' in Com' Midd' dicto 19 die Maii Anno Regni dicti Domini Regis nunc primo suprad' et ibidem per seperal' p'rogationes continuat' usq; ad 28 diem April' Anno Regni dicti Domini Regis nunc tertio et tunc apud Westm' pred' Assemblat' et eod' die ulterius p'rogat' usq; ad 22 diem Novembr' prox' futur' idem Comes de Summonition' ejusdem Domini Regis nunc veniebat attendebat et moram suam fecit ut un' pariu' hujus Regni Et idem Comes ulterius dicit quod secundum Legem et consuetud' Parliament' a tempore cujus contrar' memor' homin' non existit' usitat' et approbat' omnes pares hujus Regni Angl' ad Parliament' Domini Regis de Summonition' ejusdem Regis venien' per aliquam Cur' eidem Cur' Parliament' inferior durante tempore hujusmodi Parliament' seden' vel infra usual' tempus privileg' hujusmodi Parliament' prox' ante vel prox' post aliquam prorogationem hujusmodi Parliament' fact' ratione vel p'textu alicujus transgr' contempt' malegestur' sive al' cause vel materia cujuscunq; (p'dition' Felon' vel recusation' ad inveiend' securitat' de se bene gerend' erga Dom' which was the last day of the term, and the earl then appeared, and delivered in his former Regem et cunctum populu' suu' tantummodo except') arrestari imprisonari vexari seu inquietari seu ad aliquod bujusmodi transgr' contempt' malegestur sive al' causam vel materiam quamcunq: (except' precept') respond' compelli non debeant nec a toto tempore suprad' consuever' Et hoc parat' est verificare unde ex quo pred' informatio versus ipsum comitem exhibit' fuit infra usual' tempus privileg' ejusdem Parliament' scilicet infra quadraginta dies prox' post pred' ult' p'rogation' ejusdem present' Parliament' qui nondu' preterier' idem Comes pet' Judic' si Cur' hic placitum p'd modo infra usual' tempus privileg' ejusdem Parliament' cognoscere velit aut debeat, &c. Et pred' Thomas Powis Mil' Solicitor' Domini Regis nunc general' qui pro eodem Dom' Rege in hac parte sequitur p' eodem Dom' Rege dicit quod placitum p'd p' p'dict Willielmum Comitem Devon' modo et forma p'd' superius placitat' materiaq; in eodem content' minus sufficien' in lege existunt ad precludend' Cur' Dom' Regis nunc hic a procedend' sub' information' pred' et hoc parat' est verificare prout Cur' hic cons' unde pet' judic' et quod idem Willielmus Comes Devon' ad inforination' pred' respondeat, &c. Et pred' Willielmus Comes Devon' dicit quod placitum pred' per ipsum Willielmum Comit' Devon' modo et forma pred' superius placitat' materiaque in eodem content' bon' et suflicien' in lege exstunt ad precludend' Cur' dicti Domini Regis hic a procedend' sup' information' p'd' Quod quidem placitum materiamq; in eodem content' idem Willielmus Comes Devon' parat' est verificare et probare prout Cur' hic Cons' Unde ut prius pet' Judic' si Cur' Domini Regis hic super informationem pred' ulterius procedere vult', &c. Et sup' hoc lect' et audit' omnibus et singulis premiss' pro eo quod videtur Cur' hic quod placitum pred' p'tat' Comit' Devon' modo et forma pred' superius placitat' materiaque in eodem placito content' minus sufficien' in lege existunt ad precludend' Cur' dicti Domini Regis nune hic a procedend' super information' pred' ideo dict' est' eidem Willielmo Comit' Devon' quod ipse idem Willielmus Comes Devon' ad information' pred' respondeat, &c. As to striking in the King's Courts and Palaces, See in this Collection the Cases of sir Edmond Knevet, A. D. 1541, vol. 1, p. 443, and of lord Thanet and Mr. Ferguson, A. D. 1799. "John Davy had his hand stricken off at the standard in Cheape, because he had smitten a man before the king's judges at Westminster, wherefore the king commanded him to have the law in example to others." Stow's Annales, 416. In the year 1575 one Birchet or Burchet was executed for a murder committed in the Tower of London. It appears, that before he was hanged his right hand was cut off and nailed to the gallows. |