Give me leave, my lord, to follow him a little in this criticism. I believe the word liber doth not denote so many different things as the very learned serjeant would seem to intimate. In the very early ages of the world, before writing was a common accomplishment, before vellum, parchment, or paper were found out, people writ upon the inward rinds or barks of trees, which bark was called 'liber;' and, from thence, when parchment or paper was, in after-ages, writ upon, that was called liber' too: the same practice hath likewise given occasion that codex' signifies both the bark of a tree, and a book: as for liber,' free,' it is always used in an adjective sense, and a noun substantive is always exprest or understood. And as for 'liber' signifying Bacchus,' the serjeant hath been at dinner, he hath eat and drank plentifully, I dined with him, and I find he bath forgot part of the name of Bacchus, for he is called Liber Pater,' and not liber' only, that I remember. bishops and bishops, and to what they do; but, as I take it, their licences are generally signed by their secretaries or chaplains: whether they have any legal authority for the licensing of books, or if it amounts to any thing more than a bare recommendation of the goodness of a book, under the protection of a great name, I cannot tell; and therefore with the utmost deference submit it to your lordship's judgment, whether any weight can be laid on those instances. The universities have certainly, at this time, a right to licence books printed within their re spective jurisdictions, and I believe they gene rally use the word imprimatur,' and it is signed by the chancellor; but this privilege is of a very late date, it being not many years since books were first printed there. I pray God bless the universities, continue to them their present authority, and increase it: but we must not admit that the modern use of a word, though by those learned bodies, can give such a sanction to the sense of it, as to make it a conclusive answer to our objection. Mr. Bootle says, it hath been a word used ever since printing was found out, to signify printing, and that no information hath been brought for printing a libel, where that word hath not been made use of; but he is not pleased to mention any ancient precedent, nor any case where this point hath been judicially determined; indictments for printing libels were very rare in former times, and are scarcely to be met with in the old law books; lately indeed they have been more frequent, but I believe have not always been drawn by But what I insist upon in this matter, my the most skilful hands; and if some mistakes lord, is, if a man were to be charged within them have been past over in silence and stamping of a book or paper; it would be said without an exception taken to them, we hope a that he impressit' the book or paper; and the faulty modern precedent, upon the rolls in the charge against Mr. Dyett for forging the law-crown-office, shall not have more weight with duty-stamp was in those words; and since, by the it than the universities. charge of impressit libellum,' stamping (which is not high treason) may be as well meant as printing, unless explained by an Anglicè;' I humbly hope judgment shall be reversed in this case. Mr. Ketelbey. My lord, I shall be very short in what I am going to say. It hath been insisted on, that the common form of licensing books to be printed, by the judges, archbishops and universities, is by using the words imprimatur liber cui titulus, &c.' If any one instance could have been produced where my Jords the judges had used that word in allowing the printing of any books, such a precedent would have stopped our mouth as to this objection; but I have here in my hand a large volume of trials and other tracts, that have been licensed, some of them by the judges, and others by the secretaries of state, and lord mayors; yet the said 'imprimatur' is not used in any one of them.-All these licences are in English, and I do not remember any one law book that was ever licensed by the judges in Latin, I pay all the respect imaginable to the arch They are pleased to insist, that we have not the liberty now of making this objection, as being out of time; because, in the point of false and improper Latin, it ought to have been of fered before plea pleaded: But, my lord, we must beg leave to put this on a right foot; we do not object it as false and improper Latin; we say there is no offence charged in the indictment: the act of parliament says it must be by printing; if they have used a word that doth not signify printing, the indictment cannot be good, this cannot be high treason; my lord, we submit it to your lordship. jection did not come out of time, because they The Judges were all of opinion, that the obdid not take it for false and improper Latin. But all agreed, the word impressit' was very proper to signify printing, as used in the indictment, and that there was nothing in the objection. Mr. Hungerford. My lord, there is another objection, which I humbly take the liberty to make it is this; the offence made trea son by this act of parliament is, that if any per : son shall maliciously, advisedly and directly, by writing or printing, maintain and affirm that our sovereign lady the queen, that now is, is not the lawful and rightful queen of these realms, or that the pretended prince of Wales, who now stiles himself king of Great Britain, | &c. hath any right or title thereto; the language of the act of parliament is, and now' (that is, at the time of making of the act) stiles himself' so and so: but the indictment doth not pursue the words of the act of parliament, in describing the person of the Pretender; for the words in the indictment are these; "Persona in vita Jacobi secundi nuper regis Augliæ, &c. pretend. esse princip. Wallie, et post dicti nuper Regis decessum pretenden. esse, et suscipien. sup. se stilum et titulum regis Angliæ per nomen Jacobi tertii;" so that who now stiles himself, &c.' is not mentioned in any part of the indictment, and consequently the person described or intended by the act of parliament, and the person described in the indictment, may be two different persons; for if a person doth now, or five or six months ago, stile himself king of Great Britain, it answers the description in the indictment of stiling himself king of Great Britain' post dicti nuper regis decessum,' for it is not said-immediately after his death, and yet that person may not be the person who at the time of the act took upon himself the title of king, &c. and since, by the wording of the indictment, it doth not appear that the person there described is the same person with him in the act of parliament, the indictment ought to be assisted with an averment, that the person described in the indictment is una et eadem persona' with him described by the act of parliament, whereby the identity of the person would appear; and, for want of this averment or following of the exact words of the act of parliament, we hope this offence is not sufficiently laid, whereby to affect the prisoner at the bar. Mr. Ketelbey. If they had said 'immediatè post decessum,' they had taken in a greater length of time, than now they have done; and having only laid it' post decessum,' generally, it may, or it may not, be immediately after the death of the late king James; and then that intermediate space of time is not accounted for or ascertained in the indictment, without such averment as we contend for. The indictment ought to bave been certain, in all respects, and to all intents and purposes whatever; but here, since the late king James died before the passing this act, it doth not necessarily appear, it is no natural consequence, that the person who in the life-time of king James the second pretended to be the prince of Wales, is the same person that after his decease pretended to be and took upon himself the stile and title of king of Great Britain. sufficient. There are two descriptions of this person in the act of parliament; the one is, that the pretended prince of Wales, who now stiles himself king of Great Britain; the one is the pretended prince of Wales, and the other king of Great Britain. If Mr. Hungerford may be allowed to mean there may be many Pretenders, though I believe he would not suppose that there were any before the Pretender himself, that called himself the prince of Wales; so that that is plain who is meant by the Pretender. The second part of the description, "who now stiles himself king of Great Britain," post decessum Jacobi secundi nuper regis Anglie,' is not that semper post decessum;' was not the 'decessum' of king James the second before the making of the act of parliament; and is it not the pretended prince of Wales who, immediately 'post' and 'semper post decessum,' stiles himself king of Great Britain, that brings it down to the time of the act of parliament, and continues it to the time of the indictment laid? The 'post decessum,' as it stands here, over-reaches the act of parliament in point of time, goes along with it, and continues with it till the indictment preferred. in this Indictment says, who in the life-time of Serjeant Cheshire. My lord, the expression king James the second pretended to be the prince of Wales, and after his death pretended to be, and took upon himself the stile and title indictment says it more plain than as they of king of England. The expression in this would have it; the late king James was dead before any of the acts of parliament, and that which they would have us have said, is a much less assertion, and not so proper and pertinent; for when he died before the act of parliament, he assumed now, (he that in the life-time of king James the second pretended to be prince stile and title of king of England; so that we of Wales, he assumed now) and ever hath, the have taken in both the times of these acts of parliament, in the life-time of king James the second, and after his decease. Mr. Hungerford. My lord, I will crave leave to offer a few words by way of reply. The description in the act of parliament, as Mr. Attorney truly observes, consists of two parts, viz. such a person as in the life of the late king James pretended to be prince of Wales, and who, viz. at the time of the act, took upon himself the title of king, &c. The words are in the conjunctive, and therefore, if the description in the indictment takes but one part of the description in the act, it is an imperfect description, and consequently the high-treason not perfectly laid. If it had been, as Mr. Attorney seems to hint, that the person described did semper post decessum' of king James, or immediately post' his decessum,' take upon Att. Gen. My lord, we are not bound, with himself the title of king, &c. it would have submission, to pursue the very terms of the act been well enough, because it would have of parliament. If, upon the face of the indict-amounted to an averment, that the person in ment, it appears the same person is described in the act, and the person in the indictment, was the indictment as in the act of parliament, it is the same individual person; and for want of 6 such a certainty, we humbly insist, they have failed in a material part of this accusation. L. C. J. This act of parliament makes it high-treason only with respect to this individual person, who is here called the pretended prince of Wales: Now, if the person hath no where any christian name, or sirname, must we not take notice of the description of him, and how he is called in almost all the acts of parliament? In one act of parliament he is called the pretended prince of Wales: In the act on which this Indictment is founded, he is called the pretended prince of Wales, and that now takes upon himself the stile and title of king of England: In the Abjuration Act, he is called by the name in the indictment; if it be the same person, must not we take notice, this is one and the same person? and if so, no matter which of the names he is described by. Mr. Ketelbey. My lord, I beg leave to mention one word more. The act of parliament says (any right to the crown of these realms,) and so it goes through in the plural number (hath any right or title to the crown of these realms ;) it relates to the Union of the two realms of England and Scotland, and from one end to the other mentions them plurally; they have expressed it in the indictment only in the singular number hujus regni,' and afterwards, innuendo, coronam hujus regni.' Att. Gen. The words are Magne Britanniæ.' Mr. Ketelbey. With submission, the words are, innuendo, jus hereditarium ad coronam hujus regni,' without Magna Britanniæ.' Att. Gen. The words in the beginning of the indictment are, de et concernen. coron. Magus Britanniæ;' you have got upon innuendoes again. Mr. Ketelbey. Why, if you do not like the innuendoes, you may leave them out of the case, and see how it will stand then; if the last innuendo (jus hereditarium ad coronam hujus regni') be laid aside, the words of the indictment will be barely, " he hath that to plead in his favour," without any thing more, and then it doth not appear, if you go through without the innuendoes, that it is any offence against the statute. Mr. Hungerford. My lord, the objection is this, the act of parliament makes it high-treason to affirm, &c. that any person hath a right to the crown of these realms; which expres sion comprehends Great Britain and Ireland; in the indictment they have not mentioned Ireland, it is only ad coronam hujus regni ;' it is indeed Magnæ Britannia' in the beginning; though England and Scotland make one united kingdom, Ireland is not included. Att. Gen. My lord, we have done, and pray your lordship's Judgment. Then the Recorder passed sentence, as usual in cases of high-treason; and he was executed at Tyburn, November 6th, 1720, aged nineteen. I don't find he made any Speech, or left any Paper behind him. [The following Case of a conviction of Treason for publishing a treasonable Paper, I have extracted from the Harleian MSS. in the Brit. Mus. N° 6846, art. 104, fol. 335. I know not exactly the date of the Trial; but it seems likely that sir John Trenchard was Secretary of State when the parties were carried before him. According to Beatson, Trenchard was Secretary of State from 1692 to 1695.] THE TRIAL OF WILLIAM NEWBOLT AND EDWARD BUTTLER, Printers, FOR HIGH TREASON, IN COMPASSING AND IMAGIN ING THE DEATH OF THEIR MOST SACRED MAJESTIES KING WILLIAM AND QUEEN MARY. [NOW FIRST PUBLISHED FROM the Harleian MSS. IN THe British MUSEUM.] ON Friday, the 8th of this instant September, being the 3rd day of this sessions, the prisoners were brought to the bar, and were arraigned upon an indictment of high-treason, for composing, printing, and publishing the late king James's Declaration,* &c. To which Indictment they both pleaded Not Guilty; and for their trial they put themselves upon God and their country. Then the jury was called over, and the prisoners having made their law. ful challenge to the number of 26, the Court proceeded to their trial, and the gentlemen sworn to try the issue were those whose names follow: JURY. Then the prisoners desired they might have pen, ink, and paper allowed them, which was granted; and then the Indictment was read again, which set forth, that the prisoners stood indicted by the names of William Newbolt and Edward Buttler, of the parish of St. Margaret's, Westminster, gents. for that they not having God before their eyes, but being moved and instigated by the power of the devil, and being enemies of our sovereign lord and lady the king and queen, and minding and intending to raise war and rebellion in this kingdom, and the government of this kingdom wholly to subvert, alter and change, and a miserable slaughter amongst their majesties' subjects to make, and to depose and put to death their most sacred majesties, on the 20th day of May last past, * See this Declaration, vol. 12, p. 1209. and divers other times, as well before as after, they did compose, print and publish, or cause to be composed, printed and published, a most false, scandalous, malicious and traitorous libel, entitled," His Majesty's most gracious Declaration to all his loving Subjects," signed J. R. and beginning to this effect: "When we reflect upon the calamities of our kingdom, we are not willing to leave any thing unattempted that may be for the good of our subjects, and to regain our own rites, "* &c. reciting the Declaration at large. Then the counsel for their majesties opened the nature of the offence contained in the indictment against the prisoners; how that they stood accused for high-treason, which indeed was a crime of the highest nature against any person or government whatsoever, and the offence alleged in the indictment was printing of a treasonable libel, entitled, "The late king James's Declaration," which tended only to the deposing of the king and queen, and to the bringing of them to final death and destruction, and that whosoever does go about to depose the king and queen, this was a compassing, imagining, and contriving the death and destruction of the king and queen, and in the libel there was contained the most rank and basest treason that could possibly be imagined, in that it did set up the title of the late king James against the present king and queen, and the government; and this did tend to incite and stir up all their majesties' subjects to take part with their enemies against them, and that the prisoners having printed the said treasonable Declaration, this was an overt act of hightreason in law; therefore if it was proved to them, the Court* did not doubt but that they would find the prisoners guilty of high-treason. And the Court hoped that the gentlemen of the jury were men so conscientious and so judicious, that they would value the welfare of the government so much, as to find a just and true verdict against the prisoners, &c. Then the evidence for the king and queen were called and sworn, the first of which stood up and gave account, that about the 20th of May last past, he was in company of the prisoners, at the Ship, in Charles-street, in Covent-garden, where they had an haggas to dinner; and after dinner the man of the house brought up word, that one captain Griffiths was below and wanted to speak with Mr. Newbolt; he went down, and when he came up again he told the company, that captain Griffiths wanted 10,000 of the Declarations for the use of the country, and that he would give 15l. for them. About four or five days afterwards, he being there again, Mr. Buttler pulled out a Declaration out of his pocket, and one Mr. Farr was there at the same time, and looked upon it, and said, that it wanted the king's-arms to it, and the letters God save the King; so Farr said at last, Come, we will go to my lord's and do it, (meaning at Douglass's, where the printing * So in the MS. press stood), and that was to set the Declaration; and after this, on the 1st of June following, he met Buttler in Charles-street again, and he had some Declarations about him, and his heart failed him, and he gave them to this evidence; and then the messenger went and took them, and they were carried before sir John Trenchard, and there they confessed the matter; and there were thirty of them found upon Buttler, and that they were to have 151. for printing 10,000 of them. Another evidence swore, that the prisoners had a printing press, and this was kept at one Douglass's, at Westminster, and there they printed the Declarations, and that both of them were concerned equally in the matter; and that that were seen to compose and set the letters in the press, and the frame so set by their hands was brought into Court, on which the Declaration had been printed, and sworn to be set by the prisoners; and all this was fully and clearly sworn against them by the king's evidence. The prisoners did not deny the fact, nor that they did not print this Declaration, but alleged that it could not be treason to print; for nothing could be accounted treason but what was contained in the 25th of Edw. the 3rd, now printing was not in that statute; therefore printing could not be made an overt act of high treason, and they were but servants and worked for their livelihood; the press was not their's, and what they did was through mere necessity, &c. therefore they hoped that they could not be found guilty of treason, for that it was never known that servants did suffer for their master's fault. They were answered by the Court, that the matter contained in the Declaration was treasonable; and the question was, whether the intention of their minds were not to destroy the king by printing such treasonable libels and by sending of them abroad; for they would not print 10,000 of them to put them in their pockets, and printing treasonable books had always been accounted treason; yea, bare writing was treason too, and though printing in itself simply considered is no offence, yet printing of treason is an overt act, and it must be left to the jury to consider, whether their minds were not concerned when they went about to print those treasonable libels; and as for their being servants, that was not proved, but if it had, that would no ways excuse them, for they were to be told that there were no accessaries in treason. Then the Jury having considered of the evidence; after about an hour's time they brought this verdict, that they were both Guilty of high treason. When they received sentence, they desired Mr. Recorder to make a favourable report of their circumstances to the queen, how that they were poor men, and only worked for a living, So in the MS. † See East's Pl. Cr. c. 2, § 56. and that they were tricked and trepanned into this matter, acknowledging themselves to be true Protestants, &c. They desired that their friends might have leave to come to them, which was granted by the Court. 460. The Trial of the Rev. Mr. WILLIAM HENDLEY, for preaching a Charity Sermon at Chislehurst, in Kent, for the Charity Children of St. Ann's, Aldersgate, London; and of GEORGE CAMPMAN, ROBERT HICKS, FILIAR HARDING, and WALTER PRATT, the Schoolmaster, and Trustees for the Charity Children, for collecting Money for the same; at Rochester Assizes in Kent, before sir Littleton Powys, knt. one of his Majesty's Justices of the Court of King's-Bench: 4 GEORGE I. a. d. 1719. July 15, 1719. THE CASE.* ON Saturday, August 23, 1718, upon leave obtained, first, from the bishop of Rochester, (Atterbury, then bishop of the diocese) and secondly, from the reverend Mr. Wilson, rector of Chislehurst, to preach two Charity Sermons for the children of St. Ann's, Aldersgate; the schoolmaster, with four or five more, carried down some of the children to Chislehurst. Campman and Mr. Prat, two of the trustees for the children, to collect for them from pew to pew. The people gave liberally, till they came to Mr. Farrington, who not only refused giving, but seized the collector, asserting it was illegal, and no collection should be made; that the children were vagrants, and sent about begging for the Pretender. Mr. Hendley called out from the pulpit, and commanded them to proceed; Mr. Wilson (from the altar) did the like; but the collectors answered they could not. Mr. Wilson came down and said he would col. lect in person, and Mr. Hendley called for a common prayer book, and read the several rubrics which authorised these proceedings, and told the justices, they could not answer disturbing divine service, and must expect a complaint to the bishop of Rochester. The justices said they cared not for the bishop, or them either, and were charged by sir Edward Bettison and captain Farrington to desist from Immediately after they arrived, they were taken up, and carried before sir Edward Bettison, bart. Thomas Farrington, esq. justices of the peace, and major Stephens, high sheriff of the county; by whom they were asked, how they dared to come strolling and begging about the country, without licence or authority first obtained? To which they answered, that if archbishops and bishops thought it a good work to preach for such children, they imagined it to be a good work to collect for them: To which the justices replied, they cared not for arch-collecting. bishops or bishops, and were resolved the thing should not be pursued. In the mean time, the rector had good success in collecting, many people crowding up to On Sunday August 24, a Sermon was give before their turn: and others, kept back preached by the reverend Mr. Hendley, suitable by mere force, threw their money into the plate. to the occasion: The Sermon being ended, the Mr. Farrington made a snatch at the plate to reverend Mr. Wilson (whose curate read take the money; when Mr. Wilson ordering prayers) put on a surplice, and repaired to the the money to be brought to the altar, Mr. altar to read the offertory sentences before the Wilson took one paten and Mr. Hendley the prayer for the church militant; when Mr.ther, and decently placed them thereon. Mr. Wilson made his offering in one of the communion patens, and then gave them to Mr. *Taken from a pamphlet, intituled, Charity still a Christian Virtue; or, an Impartial Account of the Trial of the reverend Mr. Hendley, &c. for preaching a Charity Sermon at Chilsehurst in Kent. Former Edition. It appears, that this frivolous squabble was employed as a test of party zeal, and an instrument of party malignity; for which purposes perhaps it was provoked. Different pamphlets were written concerning it. Farrington pressed to come within the rails; Mr. Hendley held the door, and told him, his place was not there, and forbid him touching the money. Then sir Edward Bettison came up to captain Farrington, who called for a constable, who came up with a long staff; upon this they were ordered to disperse, upen pain of being guilty of a riot, being seconded by sir Edward Bettison; when Mr. Wilson and Mr. Hendley told them, that the service of the church was not finished, for the prayer for the church militant was not read, nor the blessing given; and if any riot, it was occasioned by |