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pones also the pannel's quality, life and conversation, which is in such a far distance from the crimes libeiled, that it excludes all presumption and probability thereof against the pannel.

To that point of the Dittay aggravating the pannel's not apprehending Mr. Haig, by the pannel's shewing to him the warrant of his citation before the committee and thereby giving him occasion to escape; oppones the pannel's deposition of the 16th of June, which bears that the pannel knew nothing of Mr. Haig his going off the country before the third day after Mr. Haig's escape.

That part of the Dittay bearing the pannel to be guilty of divulging and dispersing of the alledged infamous libel, is not proven. 1st, The pannel his causing Mr. Robert Dalgleish his servant copy the same, proves not the pannel's dispersing thereof in public; Mr. Robert Dalgleish being the pannel's houshold servant, and he having copied the same info privatos parietes, which proves not dispersing in public. 2dly, The delivery of the writ quarrelled to the earl of Rothes of purpose to be presented to his majesty, proves no ways divulging of a scandalous libel: But the delivery thereof, qualified as said is, and followed with ane real offer thereof made to his majesty, cuts away its being offered as a scandalous libel, and divulging thereof; both because of his majesty's sacred person, which is far transcendent above all presumed injuries, and also, quia calumnia est adversus absentem.' Farder, since in law and reason, intention of law and reason differences crimes by the purpose of the party, let the purpose of the pannel difference now this his act, which does make the same to be presentation of a supplication, and not divulging of an infamous libel. Sdly, The delivery of the writ by the pannel to Mr. Dunmure proves not divulging; and oppones thereto the pannel's deposition of the 9th of June, which bears that the pannel gave the wiit to Dunmure to look upon to himself alone, and to shew it to no other, and that he never knew that Dunmure had copied the same, till Dunmure was called in question for it. Oppones likewise Mr. Dunmure's deposition, which bears in this same manner. Oppones also the law quod in maleficiis voluntas spectatur, non exitus; and that the pannel's purpose is declared by his deposition foresaid.

It is answered by my Lord Advocat, That the interlining is not found relevant per se, but with the remanent circumstances; and so far as interlining is libelled, which is indefinitely, without respect of time, (whether before or after shewing of it to Dunmure) it is clearly proven by the pannel's own deposition, and by ocular inspection of the scandalous libel produced by the pannel, which is interlined with his own hand in two divers places. And for proving the pannel to be author, adviser, &c. his receiving it immediately from Haig, delivering it to the earl of Rothes, interlining of it quot un que tempore, dispersing of it to Duumure, and

giving the power of it to Dalgleish his own man, is sutficient to verify that part of the dittay. To the whilk is added Haig his confession in his letter, which in two passages thereof bears, that it was allowed by them in whose name the same was framed, of the which number the pannel was one. Where it is alledged that the not apprehending is not verified, or concealing of Haig, &c. because it is not proven that the pannel had knowledge that it was a scandalous libel; it is auswered, That the pannel knew Haig to be author, which is proven by his depositions: and the justice by interloquitor has found it to be a scandalous libel, and there is no necessity to prove his knowledge. And as to divulging it is not found relevant solo, but being conjoined with any part of the Dittay; and it is proven in terminis as it is libelled by the pannel's depositions. And as to the pannel's intention, it is not a part of the dittay, the pannel being verified to have been author or deviser, not apprehender of Haig, or concealer of him, or divulger of the scandalous libel; which is clearly proven by the writs produced. And therefore alledges that the assize, notwithstanding of their objections proponed, ought to find the dittay clearly proven otherwise, protests for wilful error and remeid of law.

It is duplyed by Mr. John Nisbet for the pannel, Whereas it is replyed by my Lord Advocat, that the receipt of the piece from the author immediately after compiling of it, joined with interlineation, and the author's testimony of the pannel's approving of it, verifies the pannel's concourse with the author in framing the piece found scandalous; we oppone the pannel's reiterat depositions, bearing that he had no accession in the framing, and gave no previous warrant to the framer, and disclaiming knowledge of the framing of it, which must elide all the presumptions adduced by my Lord Advocat; seeing it is incontraverted in law, that a qualified confession cannot be disjoined, as is clearly proven in my dispute, chiefly since the pannel has deponed so ingenuously, without any obligation in law, and upon assurance foresaid.

Whereas it is replied by my Lord Advocat, That the pannel intrusting of his man Mr. Robert Dalgleish with the piece, his imparting of it to Dunmure, and to my lord of Rothes, verifies divulging, oppones our dispute, and the authorities of the laws cited by us, requiring a public exposing, and a fraudulent intention to defame. And we oppone the condition of the pannel's delivery of it to Dunmure, that it should be illi soli; Dunmure's copying of it without the pannel's knowledge: then of the pannel's delivery of it to Dunmure, to found his opinion in judgment; all clearly verified by Dunnure's deposition.

Where it is replied by my Lord Advocat, That Haig's evasion, the pannel's knowledge that he was author of the piece now found scandalous, verifies the point of not apprehending the uuthor; and that it is not necessary to prove the pannel's knowledge of the piece: It is duplyed, That we oppone the uncontraverted practick of

all countries where apprehending of parties is enjoined, and resetting is prohibit; that decla- | rotor should precede, as in authors of heretical books, forbidden to be received by the law; because every man is not able to discern those pieces, which are debated and contraverted amongst the learnedest. And we oppone the pannel's own depositions, bearing that he knew not assuredly Haig to be author thereof, but thought only he was author; and therefore not obliged to apprehend summarly and abruptly. | In respect hereof the assize can no ways find the pannel guilty of the Dittay, and alledged crime specified therein.

Balmerino to be cleared and acquit of the first part of the said Dittay, wherein he is indicted as author, deviser, consulter, adviser, airt and part of the forming and peuning of the infamous or scandalous libel mentioned thereintil: As also of not apprehending of Mr. William Haig, whom he affirms in his deposition to have been author of the said libel: And likewise to be cleared, assoilzed, and acquit of the divulging and dispersing of the said scandalous libel amongst our sovereign lord's subjects, in manner specified in the said Dittay. And last, found, pronounced, and declared the said John lord of Balmerino to be allenarly filed and convict of the hearing of the said infamous libel, conceal

The Assize by plurality of votes, elects and choises Jobu earl of Traquair Chancellor, (Fore-ing and not revealing of the said Mr. William man.)

Haig, affirmed by him to be the author thereof.

Whilks persons of assize being received, The Justice General upon consideration of sworn, and admitted, after accusation of the the said John lord Balmerino his conviction by said John lord Balmerino by dittay of the crimes the fore-named persons of assize of the foresaid foresaids, mentioned and set down therein, and point of Dittay, anent the hearing of the infaproduction, and reading judicially of the writs, mous libel therein contained, concealing and and probation used and produced by his ma- revealing of Mr. William Haig, author and penjesty's Advocat for verifying thereof, they re- ner thereof, found and declared, by advice of moved all together, furth of court to the his lordship's assessors, That the said John lord council house of Edinburgh, where first, by plu- of Balmerino has there-through incurred the rality of votes, they elected and chused the said pain of death contained in the acts of parlia John earl of Traquair Chancellor. Thereafter inent; suspending always the execution thereof, received and voted upon the hail points of the until the time his majesty's gracious will and said Dittay; and being riply and at length ad- pleasure be shown and declared thereanent: to vised therewith, and with the writs and proba-whose sacred majesty the manner, time, and tion used and produced by his majesty's Advoeat for instructing of the same, and with the objections made by the pannel and his procurators there against, and answers made by his majesty's Advocat to the said objections, all read in their presence and audience, re-entered again in court; where they by report and judicial declaration of the said John earl of Traquair, Chancellor of the said Assize, found, pronounced, and declared the said John lord of

place of the execution of the said sentence is remitted by the justice: and the said John lord of Balmerino ordained in the mean time to be returned to ward within the castle of Edinburgh, to remain therein while his majesty's pleasure be signified.*

The King being informed hereof, was pleased to grant him a Pardon.

* 2 Rush. Col. 281.

145. Proceedings in the Star-Chamber against Dr. JOHN BASTWICK, Mr. HENRY BURTON, and WILLIAM PRYNN,* esq. for several Libels: 13 CHARLES I. A. D. 1637. Written by their Friends. AN Information was exhibited in the Star-ter at law, Defendants, for writing and publish Chamber by the Attorney General, against John Bastwick doctor in physic, Henry Burton batchelor of divinity, and William Prynn barris

* 1 Clar. Hist. p. 73. 158. 2 Rushw. p. 380. +Kennet, after mentioning the opinion which the judges had given on the legality of Ship Money, proceeds: "It was a less invidious opiBion which the same Judges had delivered in the case of Borton and Bastwicke, who had been so fierce in their Libels against the government, that it was considered by the king's counsel how to draw them into an arraignment of High-Treason. For which purpose there was a meeting of the Judges at Serjeant's-Inn, before whom the king's counsel laboured to prove, that divers passages in the Books of the

ing seditious, schismatical and libellous Books against the Hierarchy. They prepared their Answers, but the counsel being backward for

said authors did amount to High-Treason. Bat when the council withdrew, the Judges in debate among themselves, came to these resolutions. 1. That if there were any thing in the Books that amounted to treason, no In'dictment could be found good for treason, unless it was grounded upon the statute of 25 Ed. 3. either for compassing the king's death, or imagining the same, or else for levying of war. 2. That if any man seditiously, maliciously and of purpose to raise rebellion, ' and to incite rebellion, did take arms to reduce 'the course of government of the state, either

fear of offending the court, they petitioned they might sign their Answers themselves, which was denied; and the 28th of April the court ordered them to put in their Answers by Monday sevennight under their counsel's bands, or else the matters of the Information to be taken pro confesso. Mr. Prynn, May 5, again petitioned them, that having been for above a week debarred access to his counsel, and his servant who should solicit for him being detained close prisoner in a messenger's hands, and it being difficult to get his counsel to repair to him during the term; he having been a barrister at law, prayed he might (according to former precedents in that court) have liberty to put in his Answer by the day prefixed, under his own hand, and not under his counsel's, who refused it out of fear and cowardice; for which he alledged these Reasons :

several times before Felix, Festus, and king Agrippa (three heathen magistrates) was suffered to speak for himself without any counsel assigned.-The Defendant therefore hopes, he being accused in this court, by the English prelates and high priests instigations, of sedition and other such like crimes, as St. Paul was, shall enjoy the same privilege and freedom before Christian Judges, as St. Paul had among Pagans; which his adversaries will not be against, unless they. will be deemed more unreasonable than Ananias himself: especially the Defendant having been a barrister and counsellor at law formerly, and admitted in this court to put in Answers under his hand in other men's cases.

Upon reading this and a Petition from Dr. Bastwick to the same purpose, alledging his counsel refused to sign his Answer, the court adhered to their former order, that they should by Monday put in their Answers under counsels hands, or else to be taken pro confesso. Prynnand Bastwick thereupon left their Answers under their own hands at the office, and tendered another draught thereof to the court,

1. Close, Dr. Layton, and others, had been. allowed this, and there is but one precedent against it; where, upon a special reason, and in case of a woman, not of a man, much less of a lawyer, it was denied. 2. Upon an ore tenus in this court, in many cases at the Council-Table, in parliament, and in the King's- Before this petition of Mr. Prynn, he and Bench upon Indictments and Informations the two other Defendants put in a Cross-Bill (especially in cases of felony or treason) the under all their hands, against the archbishop of Defendants make their defence without counsel. Canterbury and others of the prelates, wherein 3. Counsel is allowed not of necessity but fa- they charged them with usurping upon his ma vour, as a help to the Defendants; but when jesty's prerogative royal, with Innovations, they find them no help, but that they advise licensing popish and Arminian Books, &e. and them to their prejudice, why may they not an- set forth the substance of their Answers. The swer without them? 4. Every Answer, in the Bill being ingrossed and signed by them, Mr. eye of the law, is the Defendant's, not the Prynn tendered it to my Lord-Keeper, praying counsel's. 5. Shall an innocent man suffer it might be accepted without counsel's hands, without conviction, through the want, fear, neg-who durst not sign it: The Lord-Keeper upon lect, ignorance, diversity of opinions, or treachery of counsel? 6. The law of nature teacheth every creature, man especially, to defend himself, and in the present case the Defendant's Answer resteth upon Books, matters of divinity, and other points, wherein counsel have little skill: how can they defend him in a cause they understand not? 7. At the general Day of Judgment, every man shall be allowed to make Answer for himself, much more should earthly Judges allow the same, where others will not or dare not. 8. By the judicial law among the Jews, and by the civil law among the Pagan Romans, every one might answer for themselves: Naboth, Susannah, Christ, and others, though unjustly condemned, yet were not condemned as guilty for not answering by counsel. 9. St. Paul, when he was slandered and accused by Ananias the high-priest, and Tertullus, and

reading the Cross-Bill refused to admit it, but delivered it to the king's Attorney. The Archbishop nettled thereat, demanded the Opinion of the Judges, whether they could not be punished as Libellers; who all but one answer ed negatively; for it was tendered in a legal way, and the king's courts are open to all men. The Archbishop then applyed to the court of Star-Chamber, and informed them, That in some Books and pamphlets lately published, his grace and the other bishops are said to have usurped upon the king's prerogative, and proceeded in their courts contrary to law. He prayed the court would require the Judges to give their Opinions therein; and the court accordingly desired their Opinions in the points following:

1. Whether process may not issue out of the ecclesiastical courts in the names of the bishops? The Judges answered affirmatively.

⚫ ecclesiastical or civil, and thereby to compass 2. Whether a Patent under the Great Seal be the king's destruction, this was treason. 3. necessary for keeping Ecclesiastical Courts, That such Indictment was to be framed upon and for citations, suspensions, excommunica'the said statute of 25 Ed. 3.' This Resolutions and other censures? Whether citations tion being delivered by the Lord Chief Justice to the king and council, had this regular effect, that the said offenders were not indicted of High-Treason, but prosecuted in a softer manner, though afterward thought severe and arbitrary."

must be in the king's name, and under his seal of arms? The like for institutions, inductions, and corrections of ecclesiastical offences? They answered, that a Patent under the Great Seal is not necessary in any of these cases; nor is it necessary that summons, citations, or other

process ecclesiastical, or institutions, inductions, or corrections of ecclesiastical offences should be in the king's name, or with his stile, or under his seal, or that their seals of office have in them the king's arms, the statute of 1 Edw. 6. ch. 2. being not now in force.

3. Whether Bishops, Arch-deacons, &c. may keep any Visitation, without commission under the Great Seal? They answered they may. Which Opinion of the Judges being certified into the Star-Chamber under the hands of 11 of the 12, the court, at the prayer of the Attorney-General, ordered the said Certificate to be recorded there, and in the other courts at Westminster, the high commission and other ecclesiastical courts; and afterwards the original certificate to be delivered to the archbishop of Canterbury, to be preserved among the records of bis court.

con

Mr. Prynn, upon Mr. Holt's repairing to him, gave him his fee, and Instructions for drawing his Answer; and the same being agreed on and settled by Mr. Holt, and Tomlins his other counsel, Mr. Holt's clerk ingrossed it; but Holt then refused to sign it, saying he had express order to the contrary, and would not do it for 100l. and in the mean time Tomlins went into the country. Mr. Prynn thus deluded, requested the Lord Keeper, the Chief Judge of that court, to command Mr. Holt, who had drawn it, to sign it; but the Lord Keeper answered, he had no power to command counsel to sign an Answer. And the court, May 19, positively ordered that for their contempt in not putting in their Answers, the matters against Bastwick and Prynn should be taken pro fesso, and the Cause against them should be heard the first sitting of the next term. As for Dr. Bastwick having left his Answer at the Mr. Burton's Answer, it was signed by Mr. office as aforesaid, the court taking notice that Holt; but after it had been near three weeks in it was five skins and a half of parchment close court, upon Mr. Attorney's suggestion that it written, and (as was alledged) contained much was scandalous, the court referred it to the two Chief Justices Bramston and Finch. The latscandalous defamatory matter, ordered, That all the matters of the Information, wherewith ter reviled Holt exceedingly, and told him he he was charged, should be taken pro confesso. for drawing it: Holt replyed, it was only a deserved to have his gown pulled over his ears Dr. Bastwick notwithstanding petitioned again, Confession or explanation of the charge in the that his Answer might be accepted under his own hand, but to no purpose: And Mr. Prynu how that could be scandalous or impertinent Bill, and a recital of acts of parliament, and in a second Petition desiring of the court not to require impossibilities of him, his counsel's he could not conceive. But the two Justices hands not being at his command (for thus the certified it to be all scandalous and impertimost innocent man may be betrayed and connent, except the usual words in the beginning, demned, through the unfaithfulness, wilfulness, 'The said Defendant by Protestation not con fear, corruption, or default of counsel), he fessing,' &c. and the words in the latter end, prayed them to deal with him as they would be containing his plea of Not Guilty, the common dealt with themselves, were they, which God averment that he was ready to prove the matforbid, in his condition, and as they would have terpretation, and to be dismissed. So all the ters of Answer, his Prayer of a favourable inChrist proceed with them at the Day of Judg-body of his Answer, containing about 40 sheets He craved only so much favour and jus

ment.

tice as Christ found before Pilate, and Paul before Felix, Festus, and Agrippa, or as every traitor or felon enjoys in the court of justice, to answer for himself, when his counsel will not, cannot, or dare not; especially in this weighty cause highly concerning his majesty's Royal Prerogative, the safety of Religion, and the good of the whole realm. He prayed the Cross-Bill and Answers of him and the other Defendants against the prelates late dangerous encroachments, innovations, practices and oppressions, may be accepted under the defendants own hands; and the petitioner, upon granting his Petition, should ever pray for their lordships, &c.-The Court hereupon commanded Mr. Holt, one of Mr. Prynn's counsel, to repair to him in the Tower, and take instructions for his Answer: and the Lieutenant of the Tower was

sent for and checked by the lords for suffering Mr. Prynn to dictate such a Petition; and one Gardener who writ it from his mouth by the Lieutenant's license, was the same evening, by a warrant from the Archbishop and others, apprehended by a pursuivant, detained about 14 days, and not released till he had given bond to appear when called.

of paper, was expunged, and nothing but the Not Guilty to all, he was made to deny what head and feet remained: And by his Plea of he had confessed, and justified in his Answer: And the Examiner coming to him afterwards his Answer, he refused to be examined unless to the Fleet, with Interrogatories grounded on bis Answer might be admitted as it was put in, or he permitted to put in a new one. The Court ordered the Examiner to repair to him sisting in his refusal to be examined, for that the second time with the Interogatories; but he perAnswer now in court was none of his, the court ordered the matter of the Information and Interrogatories to be taken against him pro confesso; and on the 13th of June the Court or dered the cause against all the three Defendants to be heard the next day, and that in the mean time they should have liberty with their keepers to attend their counsel. This was looked upon as a short warning by some, who affirmed, that by the course of the court, a subpana ad audiendum judicium should have been served upon them 15 days at least before the day of hearing, which was not done. However Mr. Prynn made use of his liberty, and repaired to Mr. Tomlins (then newly returned) with bis Answer

newly drawn up and ingrossed as aforesaid, who sigued it, but Mr. Holt said he durst not; then Mr. Prynn tendered it thus signed to Mr. Goade at the office, but he utterly refused to take it. Mr. Burton in his Answer, ser forth the substance of his Sermon which he preached the 5th of November in his parish church in Fridaystreet, touching the innovations brought into the church.

Dr. Bastwick in his Answer termed the Prelates Invaders of the king's Prerogative, Contemners of the Scriptures, advancers of Popery, superstition, idolatry, profaneness, oppression of the king's subjects, in the impious perform ance whereof they shewed neither wit nor honesty; Enemies of God and the king, and servants of the Devil..

Mr. Prynn's Answer was much against the Hierarchy, but in more moderate and cautious expressions.

June 14. The Lords being set in their places in the Star-Chamber, and the three Defendants brought to the bar, to receive their Sentences, the Lord Chief Justice Finch looking earnestly on Mr. Prynn, said, I had thought Mr. Prynn | had no cars, but methinks he hath ears; which caused many of the lords to take the stricter view of him, and for their better satisfaction, the usher of the court was commanded to tarn up his hair, and shew his ears: upon the sight whereof the lords were displeased they had been formerly no more cut off, and cast out some disgraceful words of him. To which Mr. Prynn replyed, My lords, there is never a one of your honours, but would be sorry to have your ears as mine are.'

6

L. Keeper. In good faith he is somewhat saucy.

Mr. Prynn. I hope your honours will not be offended, pray God give you ears to hear.

L. Keeper. The business of the day is to proceed on the Prisoners at the bar.

Mr. Prynn then humbly desired of the court to give him leave to make a motion or two, which being granted, he moved, First, That their honours would be pleased to accept of a Cross-Bill against the Prelates, signed with their own hands, being that which stands with the justice of the court, which he humbly craves; and so tendered it.

L. Keeper. As for your Cross-Bill, it is not the business of the day; hereafter if the court shall see just cause, and that it favours not of libelling, we may accept of it: for my part I have not seen it, but have heard somewhat of it. Mr. Prynn. I hope your honours will not refuse it, being it is on his majesty's behalf. We are his majesty's subjects, and therefore require the justice of the court.

L. Keeper. But this is not the business of the day.

Mr. Prynn. Why then, my lords, I have a second motion, which I humbly pray your honours to grant; which is, that your lordships will be pleased to dismiss the Prelates here now sitting, from having any voice in the censure of this cause (being generally known to

be adversaries) as being no way agreeable with equity or reason, that they who are our adversaries, should be our judges. Therefore we humbly crave they may be expunged out of the court.

L. Keeper. In good faith, it is a sweet motion, is it not? Herein you are become libellous. And if you should thus libel all the lords and reverend Judges, as you do the most reverend Prelates, by this your plea, you would have none to pass Sentence upon you for your libelling, because they are parties.

Mr. Prynn. Under correction, my lord, this doth not hold, the case is not alike, for here are only one or two members of the court, who are said to be libelled against, and your lordship yourself in your case against Norton absented yourself from the hearing, because a party, which is usually done by the lords in like cases. But this prevailed nothing.

Mr. Prynn. Then I have a third motion, which is, that your lordships will receive my Auswer to the Information signed with one counsel's hand, which as soon as I could get signed, I tendered at the office, but it was refused.

L. Keeper. Your Answer comes now too late, proceed to the business of the day. Read the Information, which was read being very large, and having these five Books thereto annexed, Dr. Bastwick's Latin Apology,' his Litany, Mr. Burton's book entitled, ‹ An Apology for an Appeal to the king's most excel'lent majesty, with two Sermons for God and the King,' preached on the 5th of November last: The News from Ipswich, and the Divine Tragedy, recording God's fearful Judgments against Sabbath-Breakers.-The king's counsel being five, took each of them a several Book.

Mr. Attorney began with Dr. Bastwick's Latin Apology; next unto the Attorney, serjeant Whitfield falls upon Mr. Burton's book, saying, In good faith, my lords, there is never a page in this Book, but deserves a heavier and deeper Censure than this court can put upon him,

Next followed the Archbishop, who in like manner descanted on The News from Ipswich, charging it to be full of pernicious lyes; and especially vindicating the honour of Matthew Wren, bishop of Norwich, as being a learned, pious, and reverend father of the Church.

Next followed the king's Solicitor, (Mr. Littleton) who descanted upon the Divine Tragedy; to which part of it concerning God's judgments on Sabbath-Breakers, he said, That they sat in the Seat of God, who judged these accidents which fell out upon persons suddenly struck, to be the judgments of God for Sabbath-breaking. He enlarged himself upon that passage which reflected upon his majesty's late Attorney-General, Mr. William Noy, who, (he said) was most shamefully abused by a slander laid upon him, as if God's Judgment fell upon him, for so eagerly prosecuting Mr. Prynn for his Histrio-mastix, which judgment was this;

* See No. 142.