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On the next day the Lord President report. ment to the king, requiring that his majesty ed that the Lords had attended the king with would be graciously pleased to grant bim bis the Address, and that his majesty bad given pardon: 2. The king's pardon in consequence order for issuing out his Pardon as desired. of that address: and, 3. A pension of 5l. a

On the 11th of June, the House of Com- week in lieu of the several pensions formerly mons came to this resolution :

granted him by king Charles of 6241. 601. and

2001. per ann. wbich he had been deprived of, “ Resolved, That the prosecution of Titus and which he had now again applied for, and « Oates, upon two indictments for perjury in expected to be restored to.” " the court of King's-bench, was a design to Sir Jobn Reresby, under date December 26, “ stifle the Popish plot, and that the verdicts 1680, says, “ I dined with that excellent man

given thereupon were corrupt; and the Dr. Gunning, bishop of Ely. The famous Dr. “ judgments given thereupon were cruel and Oates was of the company at table, and flushed “illegal.”

with the thoughts of running down the duke On the 2d of July, A bill was brought into of York, expressed himself of his bigbness the House of Commons to reverse the two and his family, in terms that bespoke bim judgments against Oates, it was passed and car- a fool and something worse; nor contented ried up to the Lords on the 6th, on which day it with this, but he must rail at the queen, his was there read a first time, but it was never mother, and her present majesty. In this passed into an act, the Lords having made strain did he hurry on, while no soul dared to some amendments in it which they would not oppose him, for fear of being made a party of relinquish, and to which the Commons would the Plot; till, no longer able to bear with the not agree, notwithstanding different conferences insolence of the man, I took him to task to between the two Houses' respecting them. such purpose, that he flung out of the room For an account of the proceedings in parlia- with some heat. The bishop told ice that such ment, respecting this Bill, See the fifth Vol. was the general drift of his discourse; that he of Cobbeti's Parl. Hist. p. 289, 386.

had sometimes checked him for the indecency

of his talk, but that finding he had done it to “ Upon the whole matter,” says Ralph, no manner of purpose, he had desisted from “Oates, by the dint of the struggle, made a any farther effort to set bounds to his virushift to obtain, 1. An address from the parlia- | lence.”

324. Proceedings in an Action of Scandalum Magnatum, between

CHARLES Earl of MACCLESFIELD and John STARKEY, esq. 36 and 37 CHARLES II. A. D. 1684–1685. [Now first printed from the MSS. of Sir William Williams, in the Possession of his Descendant, C. W. W. Wynn, esq. and the MS. Reports of

Mr. Justice Street, in the Possession of Francis Hargrave, esq.] CHARLES Earl of Macclesfield, tam pro Do- and for thirty years last past was a peer of the

mino Rege quam pro seipso, Plaintiff'; realm, and a gentleman of the bed chamber John STARREY, Esq. Defendant.*

to our sovereign lord the king.

That the Defendant maliciously devising the IN an Action brought by the Plaintiff upon honour of the Plaintiff to lessen and wound ; the Statute, 2 Richard 2, De Scandalis Mag- and to cause him to be reputed and taken for a natum,t against the Defendant : Wherein the person disaffected to the government, and a Plaintiff' declares upon that Statute, That he is disturber of the peace; and to expose him to

* The MS.'of this Article appears to be the court him which was the first author of the hand writing of sir William Williams.

tale.” + The law De Scandalis Magnatum rests And by Stat. 2 Ric. 2, c. 5, “ None shall on three Statutes ; viz. Westminster the First devise or speak false news, lies, or other such (s Edw: 1.) c. 34, (as to which, see lord Coke's false things of the prelates, dukes, earls, barons, Second Inst. p. 225, and Barrington's Obser- and other nobles and great men of the realm, vations on Westm. Primer); 2 Ric. 2, c. 5, and of the chancellor, treasurer, clerk of the (as to which, see Barr. Obs. thereon); and Privy Seal, steward of the King's House, 12 Ric. 2, c. 11.

justices of the one bench or the other, and other The Stat. Westm. 1, c. 34, commands, great officers of the realm, and he that doth “ That none be so hardy to tell or publish any shall incur the pain of the stat. Westm. 1, false news or tales wbereby discord or occasion of discord, or slander, may grow between the And by Stat. 12 Ric. 2, c. 11, “When any king and bis people or the great men of the such” (person as is described in the foregoing realm, and he that doth so shall be taken and statutes] “ is taken and imprisoned, and cannot kept in prison until he batli brought into the find bim by whom the speech be moved, be VOL. X,

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his majesty's displeasure and distrust, 17 Sep. | Grosvenor with seven more named in the De35 Car. 2. at Wantage in the county of Berks, claration, did falsely, and maliciously, without by conspiracy between bini and sir Thomas any lawful or reasonable cause, publish a scan. may be punished by the advice of the council, [S«e sir Jillian Williams's Case in this notwithstanding the statutes of Westm. 1, c. Collection, a. D. 1686.] 34; and 2 Ric. 2, c. 5."

I have not been able to meet with a report of Though the foregoing Statutes do not expressly give an action, yet it has been hilden, which occur in the Commons' Journals shortly

any of these Trials, but the following Entries ihat the party injured may maintain an action after the Revolution relate to some of them. on stat. 2 Ric. 2, c. 5, upon the principle of “ Veveris, 22 die Novembris 1 Gulielmi et law that an action lies on a statute which pro- Mariæ. Ordered, That leave be given to bring hibits the doing an act to the prejudice of ano- in a Bill to reverse tuo Judgments obtained by ther. Though the dignity of Viscount was

the duke of Beaufort in two actions of Scanda not enacted is hen these siatutes were piade, lum Magnatum, one in the Common Pleas yet it has been holden that such dignity is against sir Trevor Williams, bart, for 10,080!. within the statutes, and since the Union a peer damages, and the other in the King's-bench of Scotland also inay take advantage of these against John Arnold, esq. for 10,0001.damages.” statutes. See Selayn's Abridgment of the Law of Nisi Prius, title, “ Slander," sec. 1, the aforesaid Bill, to discharge an action for

“ Ordered, That there be also a clause in Emlyn in his learned Preface to the Second Scandalum Magnatum now depending between Edition of the State Trials slightly mentions the quke of Beaufort, and John Dutton Colt, ca«es of Scandalum Maguatum, (See in this Collection, vol. 1, p. xxxi) and Mr. Christian, in a Note to 3 Blackst. Comm. 124, (150b

It appears that the Bill was read a first time edition) makes some observations upon them. on the 29th of the same mouth, and a second He enters somewhat into the distinctions be time on the 3rd of January following. It was tween Scandalum Magnatum and slander of then referred to a select committee, and, on the ordinary persons, and he notices that the ac. | 24th, Mr. Christy reports from the Committee tion for Scand. Mag. is now seldom or never to whom the Bill for reversing of two Judg. resorted to. Under the title “Scandalum Mag- ments in two actions brought by the Duke of patum,” some learning on the subject is col- Beaufort, upon the statute of Scandalis Mag. lected in the Law Dictionary, edition 1809. vatum ; one against sir Trevor Williams, bart. See in this Collection some proceedings in an

and the other against John Arnold, esq. and action de Scand. Magn. the duke of York also to discharge an Action depending between against Titus Oates, June 18th, 1681, p. 195, the said Duke and John Dutton Colt, esq. of this volume.

upon the said statute, was relerred; “That the These actions which lord Macclesfield Duke had given sir Trevor Williams a release, brought against the Cheshire Grand-Jurynen under bis hand and seal, of the Judgment obfor presenting him as a seditious Addresser, tained against him; and that Mr. Colt was &c. were part of that system of mutual legal contented to withdraw his order, and refer the persecution by which the Whigs and Tories matter to the Duke's honour : And that theretormented each other, and distracted their fore the Comunittee had agreed to leave out of country during the latter years of the reign of the Bill all matters relating to sir Trevor Wilking Charles the Second.

liams and Mr. Colt: and had agreed to amend Bishop Burnet tells us that,

the same accordingly; and made it to relate

to Mr. Arnold only: wbich Amendments be “ The duke of Beaufort, lord Peterborough read in his place, with the coberence, and then and some others, brought actions of Scandaluin delivered the same in at the Clerk's Table : Magnatum against those who in the time of where the same were once read throug bout ; our great heat had spoke foul things of them : and afterwards a second time, one by one; and great damages were given by obsequious and, upon the question severally put thereupon, and zealous juries. An information of a bigher agreed unto by the House.” nature was brought against Williams, who,

« Ordered, "That the Bill be ingrossed.” though he was a worthless man, yet was for Three days afterwards that parliament was his zeal chosen Speaker of the House of Com- prorogued, and it was never again convoked. mons in the two last parliaments. He had li- | On the 20th of March following a new parcensed the printing the votes, which had in liament met, and, on the third of the next them marters of scandal relating to some month; leave was given to bring into the Lords. So an information was brought against House of Commons " A Bill for reversing him : and he upon it demurred to the juris- / a Judgınent obtained against John Arnold, diction of the Court. This was driven on pur- esq." and the Bill was presented to the House pose by the duke's party, to cut off the thoughts and received. On the 4th, it was ordered to of another parliament; since it was not to be be read on the morrow moruing ; at which supposed, that any House of Commons could time, however, I do not find that any thing bear the punishing the Speaker for obeying was done upon it. On the 7th the Bill was Ahoir orders.” i Burnet, 591.

read a first time, and the House resolved,

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dalous defamatory and malicious Libell, by comitat', pred 17 die Sep’ris 35 Car. 2. them falsely and maliciously devised, trained, coram Georgio Jefferys milite et baronetto and written against the Plaintiff.

uno servient' dicti domini regis ad legem The tenor whereof follows in English in the justiciar' dict' dom' regis Cestro et Jobanne Declaration :

Warren, armiger, altero justiciar' dicti dom' • We the Grand Jury sworn to enquire for

Regis comitat predict,

The Defendant and sir Thomas Grosvenor the body of the county of Chester at the as. sizes held in the Common Hall of Pleas in the and the rest named in the Declaration with castle of Chester, upon Monday the 17th day others; debito modo secundum leges bujus of September, Anno Domini 1683, having to be Jurors of the great Joquest at the said

regni Angliæ,' were impannelled and returned • heard his Majesty's Declaration, &c.' The Plaintiff avers he never was disaffected charged to inquire for the king, and for the

sessions, and were then and there sworn and to the government nor a disturber of the peace; body of the county of Chester, of certain ar, nor guilty of any of the matters contained in ticles to them there delivered by the said that libell against him :

justices. Whereby the Plaintiff is much wounded in his honour, hath lost the grace and good said inquest, secundum juramenti sui debitum,

And that they with the rest who were of the opinion of his majesty; And by reason thereof

et secundum evidenciam et testimonium eis divers false rumours and scandalls are stirred and divulged among the nobles and commons

• exhibitum,' of the Plaintiff, and according to of the Plaintiff, and many discords may thereby the said county,

their consciences, and to preserve the peace in arise :

Presentaverunt (did duly present) in the EngContra formam stat. ad damn. 10,000l. lish words in the declaration mentioned as was

The Defendant pleads the plaintiff ought lawful for them to do; Absque hoc, that the Denot to have or maintain his action, 'quia dicit fendant is guilty.de premissis, &c.in narratione • quád ad sessionem Cestr' tent. apud Cestri predict superius specificat, et ei imposit' in . in comitat Cestr'in Communi Aula placit' predict Comitat' Berks seu alibi extra predict', That it should be read a second time on the There is in 3 Mod. Rep. 41, a short Note morrow morning. I have not found in the concerning a collateral point which arose out Journals any further mention of the Bill until of an action brought by lord Macclesfield Thursday the first of May, when it is entered, against sir Thomas Grosvenor, foreman of the that “Mr. Arnold desiring leave to withdraw Cheshire Grand-jury, by which ihe present. his Bill for reversing the Judgment given ment of the earl bad been made. The word against him in the King's Bench ; Ordered, * tedious' appears to be twice printed instead That he be at liberty to withdraw the same of the word seditious' in this Note, wbich is accordingly."

as follows: The second session of that parliament commenced on the 2nd of October following, and statute De Scandalis Magnatum against sir

“ The Plaintiff brought an Action u;pon the on the 18th of November, the House of Coinmons Ordered, That no more private Bills be Thomas Grosvenor, for that he being foreman brought in to this House this session until such of the Grand-jury in Cheshire, spoke these as are already brought in or ordered to be words of the plaintiff

, “ He is a tedious man, brought in be dispatched, except a Bill for re

and a promoter of sedition and tedious ad

dresses.” versing a Judgment against John Arnold, esq. in the King's-bench.” On the next day,

" The Plaintiff desired that the Defendant À Bill for reversing a Judgment against John might put in special bail; but the Court would Arnold, esq. in the Court of King's-bench” was not grant it, and said it was a discretionary thing, presented to the House and received. On the and not to be demanded of right : it was de 21st it was read the first time, and ordered to nied to the Duke of Norfolk, unless oath made be read a second time.

of the words spoken. On Saturday the 29th it was ordered to be « The Court therefore ordered common bail read on the Monday following, which was ac- to be filed." cordingly done ; and, upon a division, the bill was ordered to be ingrossed. On the fifth of Narcissus Luttrell, in the All Souls' Library,

In the MS. “ Historical Account,” &c. by December the Bill passed the Commons, and was ordered to be carried to the Lords for their is the following Entry : concurrence; which was done. In the House “ 1683. Oct. 4th. The Grand-juries at the of Lords the Bill was read a first time on Sa- Quarter Sessions for the county of Sussex, turday the 6th of December, upon which occa- held at Midhurst, and for the county of Chession a debate arose whether the Bill should be ter, have presented the most considerable of rejected. This debate was adjourned to the the Whig Party as disloyal and disaffected ; following Tuesday, and it was ordered, That amongst whom are some noblemen, divers all the Lords be then summoned to attend. On knights and esquires, and many gentlemen, that day the debate was resumed, and the Bill who any ways favor the Whig Party." was rejected.

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comitat. Cestr’modo et forma prout the Plaine | duke of Monmouth ;* that he is no favourer af "tiff declares, vel aliter vel alio modo quam Fanatics, and non conformist-preachers; that be • the Defendant hath alledged, et hoc, etc.'

* The motives, circumstances, and conse. The Plaintiff demurrs specially: For that, quences of Monmouth's progress (4. D. 1679),

1. This Plea amounts to the general issue in quest of popularity, are related by different only.

authors with different degrees of minuteness, 4. That the Defendant ought to have plead- Dryden thus speaks of it in the Absalom and ed the general issile.

Achitophel : 3. That the traverse is immaterial, repug- • Surrounded thus with friends of ev'ry sort, pant in itself, and argumentative, etc.

4. That the Plea doth not answer the De. Deluded Absalom torsakes the Court; claration.

Impatient of high hopes, urg'd with renowe, 5. That it doth not appear that the matters Th’admiring crowd are dazzled with surprise,

And fr'd with near possession of a crown. pleaded were recorded, nor doth the Plea con- And on his goodly person feed their eyes, clude' prout patet per recordum.'

His joy conceal'd, he sets himself to show The Defendant hath joined in Demurrer. On each side bowing popularly low:

The law hath conceived such an opinion of the His locks, bis gestures, and his words he frame, peaceable disposition of noblemen, that it hath And with familiar ease repeats their names. been thought enough if one of them promises Thus forin'dby Nature, turnisb’d out with arts, upou his honour, that he would not break the He glides unfelt into their secret hearts: peace against a man. Brooko, Tit. Contempts. Then with a kind compassionating look, 6.24 Ed. 3. 33. 17 Ed. 4. 4. Dalton Surety of And sighs, bespeaking pity ere be spoke, the Peace, cap. 117*.

Few words be said; but easy those and fit, 17 Ed. 4. 4. If a person will demand sureties More slow than Hybla drops, and far mere for the peace against a person for vo other

sweet. cause, but that he is in doubt, that that other I mourn, my countrymen, your lost estate, person will take him and imprison him, the Though tar unable to prevent your fate: peace ought not to be granted by the court. Behold a banish'd man, for your dear cause

Br. Contempts 6. Whereas other persons are Expos’d a prey to arbitrary laws! imprisoned or bound to the peace in the same Yet, oh! that I alone could be undone, case, the peer's word passeth, that he will not Cut off from empire, and no more a son! medule with the party, though he had menaced Now all your liberties a spoil are made; to beat him.

Egypt and Tyrus intercept your trade; 1. This way of presenting is a new course, And Jebusites your sacred rites invade. and will alter the old methods of justice, in a My father, whom with rev'rence yet l name, matter so bighly necessary to the administra- Charni'd into ease, is careless of his fame; liou of justice, especially by grand juries. And, brib'd with petty sums of foreigo gold,

2. This way alters the nature of presentments Is grown in Bathsheba's embraces old; ‘and their forms, and may enable juries to write Exalts his enemies, his friends destroys, ang false and malicious thing, and they are And all his pow'r against himself employs. exempt from actions be it never so false, never He gives, and let him give, my right away; so malicious.

But why should be his own, and yours betray? 3. The injured hath no other way to acquit He, only he, can make the nation bleed, himself of such imputation but by action : be And he alone from my revenge is freed. (eyes

) cannot traverse such presentment, shall he Take then my tears, (with that he wip'd bis traverse their apprehensions or their fears? 'Tis all the aid my present pow'r supplies: they attirm nothing positively, shall be traverse No court-informer can these arms accuse ; their judgment that be ought not to be bound These arms may sons against their fathers use: to the peace ? Don't this presentment conclude And 'tis my wish the next successor's reign him, that he must be bound to the peace upon May make no other Israelite complain. these surmises ? Is the court bound by this Youth, beauty, graceful action, seldom fail; presentment? can he try [qu. traverse] that he But common int’rest always will prevail : was not an addresser to Mr. Booth and Sir Ro. And pity never ceases to be shown bert Cotton ; [that he] was not of the Ignoramus Tobim who makes the people's wrongs his own. Jury ;t that he was not at the receipt of the The crowd that still believe their kings oppress,

With lifted hands their young Messiah bless : * See, too, Lambard, 81, 82.

Wbo now begins his progress to ordain + See the Case of lord Shaftesbury, vol. 8, With chariots, horsemen, and a num'rous train: p. 759, of this Collection. Of the reception From east to west bis glories he displays, given by juries to legal doctrines which are dis. And, like the sun, the Promis'd land survey. agreeable to them, Dryden, in the Medal, Fame runs before him as the morning-star, thus writes :

And shouts of joy salute him from afar: The man, who laugh'd but once to see an ass Each house receives him as a guardian god, Mumbling to make the cross-grain’d thistles And consecrates the place of his abode. Might laugh again to see a jury chaw (pass, But hospitable treats did most commend The prickles of unpalatable law.

Wise Issachar, his wealthy westery friend

had bot been at any riotous assembly ? these are

The MS, of the Answer has no title or other not affirmed so as they are traversable in this account of itself. Some passages in it might presentment.

excite a conjecture that it was a speech of 4. There is a difference between an action upon the case for a false and malicious prose

the Plaintiff. It appears to me, that there cution of a person by indictment, and a con- is not any resemblance between the handpiracy.

writing of the • Report,' Observations, or In a conspiracy many things are required to

• Answer,' here printed, and those of other support it, which are not necessary to maintain an action upon the case. As that the party is

Manuscripts belonging to Mr. Wyon, which • legitimo modo acquietat.' inde, that the indict. bear satisfactory internal evidence of having ment be found, that the indictment be sufficient been written by sir William Williams.] in law: these are not necessary in case.

Smyth and Crashaw's Case, 2 Roll, 258. 2 Bulstr. 271. Palm. 315. Cro. Car. 15. Latch. 79. W. Jones 93.

Term, Mich. Anno xxxvi. Car. 2. Reg. Martis,

Nov. 25, A. D. 1684 in Scacc'. [This following Report of the Argument of Earl of MACCLESFIELD V. STARKEY, Mr. Ward (probably the same wbo was

This day was argued the Cause, before the afterwards Lord Chief Baron) for the Earl Barons of the Court of Exchequer; by Mr. of Macclesfield, and of Mr. Holt (probably Edward Ward of the Inner Temple, for the the same who was afterwards the admirable Earl, Plaintiff; and by John Holt of Grays Ina

for the Defendant. Chief Justice of England) for Mr. Starkey, and the Article by way of Answer to some

MR. WARD'S ARGUMENT. Argument by Holt, which, I apprehend, re

Mr. Ward. May it please your Jordship, lates to this Case, are among the Mss. Charles earl of Macclesfield, viscount, and which formerly belonged to sir Wm. Wil baron of Brandon, is Plaintiff, and John Starkey

esquire, is the Defendant. This comes before liams, and which have been very obligingly your lordship upon the Plaintiff's Demurrer to imparted by his descendant Mr. Charles the Defendant's Plea. Watkin Williams Wynn, for the improve

The Plaintiff hath in this case declared, “tam:

Domino Rege quam pro Seipso,' and sets ment of this work. In the margins of se- forth, That by the statute made at Gloucester veral of the pages containing the report of in the second year of king Richard the 2d, It Holt's Argument, are Observations in a dif. is ordered, and strictly prohibited, That from ferent and much worse hand-writing. These henceforth no one should be so hardy, as to Observations are here printed by way of earls, barovs, and other noble and great men of

devise, speak, or relate, of the prelates, dukes, Notes, with the designation of “ MS.' Some the kingdom of England, nor of the chancellor, resemblance may be noticed between the treasurer, clerk of the privy seal, steward of contents of these marginal Observations and the king's household, justices of the one bench the contents of the Answer to Holt. The kingdom any false news, lyes, or any such like

or other, or of any other great officers of the title of the MS. Report is here retained. falscboods, whereby scandall or discord might

arise within the realm, and that he that should This moving court, that caught the people's do the same should incùr the pain ordained in eyes,

the statute of Westminster the first. Then the And seem'd but pomp, did other ends disguise: Plaintiffsheweih, That for thirty years last past Achithophel had forin'd it with intent

he hath been and is one of the nobles and peers To sound the depths, and fathom (where it of this realm, and has for that space been one went).

[foes, of the gentlemen of bis majesty's bed-chamber, The people's hearts, distinguish friends from and in all that time hath demeaned himself And try their strength before they came to in those places and bonours with all faithfulblows.

ness and integrity, and justly and faithfully Yet all was colour'd with a smooth pretence served the king : Yet the Defendant the aforeOf specious love, and duty to their prince. said statute little weighing, nor fearing the pain Religion, and redress of grievances, (please, ordained in the stałute of Westminster the first, Two names that always cheat and always but maliciously contriving the good name, state, Are often urg'd; and good king David's life credit, dignity and honour of the plaintiff to Endanger'd by a brother and a wife.

burt and blacken, and the plaintiff as a person Thus in a pageant shew a plot is made: disaffected to the government of this kingdom, And peace itself is war in masquerade." and a disturber of the peace, and public tran

quillity, and state of the kingdom, to cause to See, too, vol. 9, p. 395, of this Collection. be esteemed, and reputed, and to cause the

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