I am made to be deeply concerned in a conspiracy. How can this be consistent, if I writ and directed that letter, and was engaged in the second part of the conspiracy? Both cannot be true, both may be false; and I hope I have satisfied your lordships, that as I did not dictate the one, so I was no ways concerned in the other. Can any one believe, that under the sad circumstance of being afflicted by the death of my wife, I should be concerned in an affair of this dangerous nature? Was that a time to provide for a stranger? And for a man, unless under the power of prejudice, to believe such an improbability, or that I had such a conjecture. I forbear former instances. I shall now consider the improbability, as well as inconsistency of the charge brought against me without positive proof. You will allow me to answer the indictment in the same mahner as it is laid. Is it probable that if I were engaged in any such design, no footsteps should be seen of any correspondence I had with the late duke of Ormond, to whom, of all persons abroad, I was best known, and to whom I had the greatest regard, and still have all the regard that is consistent with my duty to my king and country? Is it probable that I would chuse rather to engage in such design with Mr. Dillon, a military man I never saw, and with the earl of Mar, whom I never conversed with, except when he was secretary of state? Did I not know, what all the world thinks, that he had left the Pretender several years, and had a pension abroad? Is this a season for me to enter into conferences with him about restoring the Pretender; and to do this, not by messages, but by letters, not sent by messengers but by the common post? That by thus writing to him by the post, I should advise him after the same manner to write to me; and by these means furnish opportunities towards detecting the persons and bringing myself into danger? How doth that consist with the caution and secrecy which are said to belong to me? Must not I have been rash to have laid myself open in such a manner? This is an inconsistent scheme, the other a bold assertion. Is it probable when attending the sick bed of my wife, and expecting her death, not daily but hourly, that I should enter into negociations of this kind? There was no need of dispatching any of those three letters merely to excuse my not writing: The circumstances of my family had been a sufficient apology, and more effectual. Is it probable, that when I was carrying on public buildings of various kinds at Westminster, and Bromley, consulting all the books from the Westminster foundation, engaging in a correspondence with learned men, about settling an important point of divinity; at that very time, I should be carrying on a conspiracy? Those that entertain such thoughts with out reason, may also condemn me without argument. Is it probable, that I should meet, and consult, in order to carry on and forward this correspondence with nobody, and no where? That I, who always lived at home, and except at dinner time never stirred out of my chamber; received all persons that visited me, and was denied to none, should have an opportunity to be so engaged? And if I had, that none of my domestics and friends should ever observe any appearance of any such thing? No evidence among my papers, though they were all seized at both my houses, and confiuing all my servants, but one, for about ten or eleven weeks, searching him twice in the Tower, and searching myself, nothing of consequence appears, nor is there any one living witness that charges me with any thing that is really true. Is it probable, that I should form and direct a conspiracy, and carry it on with any success, that am not used to arms, which I am no more acquainted with, than with the persons employed on those occasions? My way of life hath not led me to converse with such men and such matters, except on the occasion of meeting in Parliament; but in a council of war, I never was. Have I yet in any instance of my life meddled remarkably out of my own sphere, in affairs foreign to my business or character? I might have been thought to have been too active in my proper station and business; but I was never charged with war, nor any ways informed in the art of it. Is it probable, that persons concerned in such military scheme, (if any such be formed by men of the sword that apply to such business) should be punished without any proof? And must I, whose way of life is set at the greatest distance from such persons, and from the very suspicion of being concerned with them, suffer all the pains and penalties short of death, which the Parliament can inflict for a supposed I know not what, and what I do not to this day apprehend. Here is a plot of a year or two standing to subvert the government with an armed force; an invasion from abroad; an insurrection at home; just when ripe for execution it is discovered; and twelve months after the contrivance of this scheme, no consultation appears, no men corresponding together, no provision of money, arms or officers-not a man in armsAnd yet the poor bishop hath done all this. Layer and Plunket carry on a treasonable correspondence, they go to Rome and receive directions from the Pretender himself, to promote his cause.-It doth no where appear that the bishop has the least share in, or is any way privy to, their practices. And yet the bishop has done all; he is principally concerned in forming, directing, and carrying on this de• testable conspiracy.' What could tempt me to step thus out of my way? Was it ambition and a desire of climbing into a higher station in the church? There not a man in my office farther removed from this than I am; I have a hundred times said, and sincerely resolved, I would have been nothing more than I was, at a time when I little thought of being any thing before, and I can give an instance of this kind if I thought proper. Was money my aim? I always despised it, too much perhaps, considering what occasion I am now like to have for it; for out of a poor bishopric of 500l. per annuin, I have laid out no less than 2,000l. towards the repairs of the church and episcopal palace; nor did I take one shilling for dilapidations, and the rest of my little income has been spent as is necessary, as I am a bishop. Nor do I repent of these expences now, (though since my long confinement I have not received the least part of the income of my deanry) not doubting in the least, but that God who hath liberally provided for me hitherto, will still do it, and on his good providence I securely rely. Was I influenced by any dislike of the established religion, and secretly inclined towards a church of greater pomp and power? I have, my Lords, ever since I knew what popery was, opposed it, and the better I knew it, the more I disliked it. dren, by the express word of the act: mine are not so much as to write, so much as to be sent to me. What is most particular in my case I will repeat distinctly, that my reverend brethren may hear it. I am rendered incapable of using or exercising any office, function, authority, or power ecclesiastical, not only in his Majesty's dominions, but any where else: very hard! that such spiritual power as is not derived from men, but God himself, should be taken from me. And I am not only deprived of all offices, dignities, and benefices ecclesiastical, and for ever banished the realm, but likewise precluded from the benefit of royal clemency, and made utterly incapable of any pardon by his Majes ty, his heirs and successors. My Lords, I insist on my innocence, that I am not guil ty; and if I am not proved so, your lordships will thus judge; if otherwise, I persuade myself I shall find some degree of mercy. You will not strip a man of his substance, and then send him where he cannot subsist you will not send him among strangers, and then hinder others from performing humanity to him; you will not give him less time to I begun my study in divinity, when the Po-order his affairs and depart the kingdom, than pish controversy grew hot about that immortal the bill hath taken in passing through both book of Tillotson's, when he undertook the de- Houses. fence of the Protestant cause in general, and as such I esteemed him above all. You will pardon me, my Lords, if I mention one thing: Thirty years ago I writ in defence of Martin Luther, and have preached, and writ to that purpose from my infancy, and whatever happens to me, I will suffer any thing, and will, by God's grace, burn at the stake, rather than depart from any material point of the Protestant religion, as professed in the church of England. Once more: Can I be supposed to favour arbitrary power? The whole tenor of my life hath been otherwise: I was always a friend of the liberty of the subject, and, to the best of my power, constantly maintained it: I may have been thought mistaken in the measures I - took to support it. It matters not by what party I was called, so my actions are uniform. To return to the point: The charge brought against me, in the manner it is brought, is improbable; if I could be guilty of it, I must have acted under a spirit of infatuation; yet I have never been thought an idiot or a madman. My Lords, as to the pains and penalties contained in this bill, they are great and grievous, beyond example in their nature and direction. I am here, my Lords, and have been here expecting an immediate trial. I have, my Lords, declined no impeachment. The correspondence with the earl of Clarendon was made treason, but with me it is only felony; yet he was allowed the conversation of his chil The great man I last mentioned, carried a great fortune with him into foreign parts, and had the languages: was well acquainted abroad the reverse of all this is my case: I indeed am like him in nothing but his innocence, and his punishment. It is in no man's power to make us differ in the one, but it is in your lordships' power to make us differ widely in the other, and I hope your lordships will do it. But to sum up the argument: it hath been frequently observed, that the higher the crimes. are, the fuller the proofs ought to be. Here is a charge of High Treason brought against me, with no evidence at all. My Lords, Pardon me, what is not evidence at law, can never be made so by any power on earth; for the law that required the evidence, is as much the law of the land, as that which declares the crime. It is equally unjust to declare any proof legal, because of my prosecution: as extraordinary would it be, to declare acts themselves, ex post facto. Never was there a charge of so high a nature, and so weakly proved. A person dead, so that there is not an opportunity to falsify him by contradicting him; a charge not supported by one evidence, nor by one proof of any thing that hath been writ or received by me, nor even by any one criminal word proved to have been spoken by me, but by intercepted letters and correspondence, in which appears not the least certainty. Some of those letters, shown to persons, with a design to fasten something on them; others writ in cyphers, and fictitious names, throwing out dark and abstruse hints of what persons went by those names, sometimes true and sometimes doubtful, and often false, who continue all the while strangers to the whole transaction, and never make the discovery, till they feel and find it advancing itself towards them: My Lords, this is my case in short. I have a hard task to prove my innocence: shall I stand convicted before your lordships on such an evidence as this? The hearsay of an hearsay; a party dead, and that denied what he said; by strange and obscure passages, and fictitious names in letters; by the conjecture of decypherers, without any opportunity given me of examining and looking into the decyphering; by the depositions of post-office clerks about the similitude of hands; their depositions made at distant times, and without comparing any one of the originals, and by a strange interpretation of them; for nothing more, I am persuaded, can be made of the arguments, than what is called the intercepted correspondence. Shall I, my Lords, be deprived of all that is dear to me, and, in the circumstances I am in, scarce able to bear up, and by such an evidence as would not be admitted in any other cause or any other court; and would hardly affect a Jew in the inquisition of Spain? And shall it be received against a bishop of this Church, and a member of this House? God forbid. Give me leave to make mention of a text in holy writ; Against an elder receive not an accusation, but before two or three wit'nesses.' It is not said, condemn him not upon an accusation, &c. hut receive it not; I am something more than an elder, and shall an accusation against me be countenanced, without any one instance of a proof to support it? This is not directly matter of ecclesiastical constitution: there you read, one witness should not rise up against an elder; but here, at the mouth of two witnesses, or three witnesses, shall the matter be established. And as this rule was translated in the state of the Church, people always thought fit to follow it. Shall I be the first bishop in this Church condemned upon conjecture, on fictitious names and obscure passages in letters, instead of two or three witnesses? never did, nor never will, I hope, because tarture, though used in other countries, is not known here. Is it not torturing to inflict pains and penalties on persons not suspected of guilt, nor plainly proved guilty? It is not much unlike it. The Parliament may, if they please, as well upon a bill of perpetual imprisonments, as upon a bill of perpetual exile, reserve to the crown a power to determine the one as well as the other. They have so enacted it in the one case, but they have not enacted it in the other. The law knows nothing of such absolute perpetual imprisonments. The law may, in like manner, condemn a man on a charge of accumulated and construc tive treason. They did so in the case of the great lord Strafford, and that by accumulated and constructive proof of such treason, that is, by such proofs so well interpreted, as plainly to communicate light and strength to each other, and so to have all force, without the formality of evidence. Was such proof ever admitted by any one to deprive his fellow-subject of his fortune, of his estate, his friends, and country, and send him in his old age, without language or hope, without employment to get the ne cessaries of life, to starve? I say again, God forbid. My ruin is not of that moment to any number of men, to make it worth their while to violate, or even to seem to violate the constitution in any degree, which they ought to preserve against any attempts whatsoever. But where once such extraordinary steps as these are taken, and we depart from the fixed rules and forms of justice, and try untrodden paths, no man knows where this shall stop." Though I am worthy of no regard, though whatsoever is done to mine may, for that reason, be looked upon to be just, yet your lordships will have some regard to your own lasting interest, and that of posterity. This is a proceeding with which the constitution is not acquainted, which, uuder the pretence of supporting it, will at last effectually destroy it. For God's sake, lay aside these extraordinary proceedings, set not up these new and dange rous precedents; I, for my part, will volunta Will not others endeavour to make the same rily and chearfully go into perpetual banishprecedent, and desire the same influence of itment, and please myself that I am, in some to succeeding ages, and even concur in such an act, in order to render me incapable of using or exercising any power or authority, &c. Is this good divinity, or good policy? measure, the occasion of putting a stop to such As to the justice of the legislature, in some The Parliament may order a criminal to be stortured, who can say they cannot? But they I have, my Lords, taken up much of your lordships' time, yet I must beg your attention a little longer. Some part of my charge bath been disproved by direct and full evidence, particularly, that of writing the letters of the 20th of April, or that I knew who wrote them, which I utterly deny that I ever did or as yet do know. Other parts of the charge there are, which are not capable of such disproof, nor indeed require it; there I rest. But, my Lords, there is a way allowed of vindicating myself; it is generally negative; that is by protesting and declaring my innocence to your lordships, in the most deliberate, serious and solemn manner; and appealing to God, the searcher of hearts, as to the truth of what I say, as I do it in what follows: I am charged in the Report with directing a correspondence to Mr. Kelly; but I solemnly deny that I ever directly or indirectly, saw a single line of any of their letters until I met with them in print. Nor was the contents of any of them communicated to me. I do in the next place deny, that I was ever privy to any memorial to be drawn up to be delivered to the regent. Nor was I ever acquainted with any attempt to be made on the King's going to Hanover, or at the time of the election. Nor did I hear the least rumour of the plot to take place after the breaking up of the camp, till some time after Mr. Layer's commitment. I do with the same solemnity declare, that I never collected, remitted, received, or asked any money of any man, to facilitate these designs; nor was I ever acquainted with, or had any remittauces whatsoever from any of those perI never drew any declaration, minutes, or paper, in the name of the Pretender, as is expressly charged upon me. And that I never knew of any commission'issued, preparation of arms, officers, or soldiers, or the methods taken to procure any, in order to raise an insurrection in these kingdoms. All this I declare to be true, and will so declare to the last gasp of my breath. sons. And I am sure, the farther your lordships examine into this affair, the more you will be convinced of my innocency. These contain all the capital articles of which I am accused, in the report of the House of Commons. Had the charge been as fully proved as ascertained, it had been vain to make protestations of innocence though never so solemn. But as the charge is only supported by the slightest probabilities, and which cannot be disproved in any instance, without proving a negative; allow the solemn asseverations of a man in behalf of his own innocence to have their due weight, and I ask no more, than that they may have as much influence with your lordships, as they have truth. If on any account there shall still be thought by your lordships to be any seeming strength in the proofs against me: If by your lordships judgments, springing from unknown motives I shall be thought to be guilty: If for any reasons, or necessity of state, of the wisdom and justice of which I am. no competent judge your lordships shall proceed to pass this bill against me: God's will be done: Naked came I out of my mother's womb, and naked VOL. VIII. mined at the Bar, relating to the Bill against Lord Lechmere moves, That Kelly be exadone speaking, and being, with his counsel, the Bishop of Rochester.] The Bishop having withdrawn, the lord Lechmere took notice, That the most material part of the charge against that prelate was his dictating the treasonable letter to Mr. Kelly; and since the letter was the only legal witness they could have in this doubtful case, be therefore moved, "That George Kelly alias Johnson, now a prithe bar of this House on Monday morning next, soner in the Tower of London, be brought to to be examined upon oath, on the bill, intituled, An Act to inflict pains and penalties on Francis lord bishop of Rochester."" by several Lords; and the question being put seconded by the earl of Carlisle; but opposed this motion, it was resolved in the nega tive by 80 voices against 40. upon He was Protest on the said Motion's passing in the Negative.] Dissentient' 1. "Because we think it unquestionable that the said Kelly is a competent legal witness to the matters charged by the bill against the bishop, and could not be legally refused to be sworn as such, if the bishop were on his trial for the same in the ordinary course of justice; and that, whether the said Kelly were produced either for or against the bishop; and, we conceive, if the counsel for the bill had thought fit to have produced him in support of the bill, that even no legal objection could have been made by the bishop's counsel against his being so produced and sworn, the bill passed this House against the said Kelly not having received the royal assent; and there not being in the said hill, in our opinions, any thing that can destroy even his legal testimony, when the same is passed into a law. 2. Because the three letters, dated the 20th of April 1722, supposed to contain treasonable correspondences with the Pretender and some of his agents, have been made the principal charge against the bishop, and have been endeavoured to be proved to have been dictated to the said Kelly by the bishop, at or about the time of their date; but this not being as yet done, as we think, by direct or positive proof by any living witness of the fact, but by circumstances only, we think it most proper, and most safe and just, to endeavour to discover the truth of that material fact, by the best evidence the nature of the thing can admit of; and that this House should not be left under the difficulties of judg-ing on this extraordinary occasion from doubtful circumstances, if the fact may be cleared by certain positive proof, and the examination of a competent and a living witness upon oath at the bar of this House. 3. "Because several living witnesses having been examined on oath at the bar of the U cape; and which declaration appears to us to have been made by him under the strongest influences of guilt and terror. House, on behalf of the bishop, in order to prove by their positive testimony and other circumstances, that the bishop did not dictate or direct, or was any way privy to the writing of 6. "We think the crimes charged in the the said letters, or any of them, which has, in Bill against the said Kelly, are in their nature our judgments, rendered it of yet greater impor- distinct and independent on those charged upon tance, that the supposed writer of those let-the bishop, Kelly's guilt in writing the said ters should be brought under the most strict and solemn examination, before the Bill has passed this House. treasonable letters proved upon him being the same, though the bishop be altogether innocent in relation thereto; for which reasons, as we conceive, this House did refuse to permit Kelly on his bill to give evidence, that the bishop did not dictate the said letters; for which reason we are of opinion, that the evidence which Kelly might have given touching the bishop's dictating the said letters, or not, would have produced no consequence at all, with regard to the Bill passed against himself, though it must necessarily have contributed to the proof of the guilt or innocence of the bishop. 4. "Because the said Kelly, though examined before committees of both Houses of Parliament, and elsewhere, hath not, to our knowledge, been yet examined upon oath to the matters contained in this Bill; and it having appeared to us, in other instances on this occasion, particularly of Mrs. Barnes, examined for the Bill, and of Bingley against it, who have materially varied their examinations at the bar of this House from their former examinations, at the same time declaring their former examinations were not taken and sworn to by them, we think it may be both dangerous and derogatory to the honour and justice of the House, not to examine upon oath, a person capable of discovering the matters of fact, on which the justice of the Bill against the bishop must depend; and especially after the said Kelly hath declared in the most solemn manner, next to that of his being upon oath, that the bishop did not dictate, or was privy to the writing the said letters, or any of them; and the bishop himself, in his defence, having also, in the most solemn manner of assevera-been construed as forced from him by the aution, declared his innocence in this particular, and expressly referring to the former asseverations of the said Kelly, as we conceive as a testimony in confirmation of his own asseverations. 5. "Because, we conceive, that the said Kelly was not only a legal witness for or against the bishop, in the strictest construction of courts of judicature; but the examination of him upon oath, on this Bill, is in every respect whatsoever, in our judgments, less liable to objection than in any or most other evidences, which on this occasion have been allowed; because the Bill passed by this House against the said Kelly, if it obtains the royal assent, as is most probable, doth (in judgment of law, as hath been declared by the judges) acquit him of any further prosecution for the said treasons therein charged upon him, and there is no judgment or punishment inflicted upon him in the said Bill, which can, when passed, destroy his capacity of giving evidence on any occasion; and the same being passed by this House, and not passed the royal assent, leaves the said Kelly, in our opinions, under less influence either of hopes or fears, than such witnesses which have been examined on this occasion under commitments and charge of high-treason; and, as we conceive, less liable to that objection than the declaration of Philip Neynoe, which has been read against the bishop, though never signed or sworn to by him, and the said Neynoe, some mouths since, drowned in endeavouring his es 7." This House having with great honour and justice, declared to several persons produced as witnesses on this occasion, that it was not required from them to depose any thing which did or might tend to their own accusation, the testimony of the said Kelly, if he had been examined on oath, we doubt not, would have been taken under the same just indulgence; and if he had submitted to have been examined on oath to the matters of this bill, such his examination being in that respect' voluntary, could not, in our opinions, have thority of this House; and such testimony as he might have given would have remained under the consideration and judgment of this House,· as to its credit and influence, on all circumstances, in the same manner as the other evie dence for and against the bill still does. (Signed,) Cowper, Lechmere, Pomfret, Bathurst, Bingley, Fr. Cestriens', Compton, Wil loughby de Broke, Weston, Bruce, Aylesford, Hereford, Gower, Brooke, Middleton, Denbigh, Scarsdale, Dartmouth, Salisbury, Foley, Masham, Cardigan, Exeter, Wharton, Litchfield, Uxbridge, Hay, Strafford, Northampton, Anglesea, Berkeley de Stratton, Poalett, Ashburnham, Guilford, Craven." Farther Proceedings on the Bill against the Bishop of Rochester.] May 13. The bishop of Rochester being, for the last time, brought to the bar, Mr. Reeves, one of the counsel for the bill, made a reply to the bishop's Defence, and, in particular, justified what he had said before about the Letter the bishop wrote in the Tower, and was found about one of his servants. And as the bishop had closed his speech with a passage out of the Holy Scripture, so Mr. Reeves concluded with these words out of Ecclesiastes, chap. 10. v. 20. "Curse not the king, no not in thy thought, and curse not the rich in thy bed-chamber: For a bird of the air shall carry the voice, and that which has wings shall tell the matter,” |