After due consideration had of what was offered by counsel thereupon, it is this day or dered, by the Lords Spiritual and Temporal in parliament assembled, That the said judgment given on his late majesty's hehalf against the said Titus Oates be, and is bereby, affirmed; and that the transcript of the said record, wherein judgment is entered as aforesaid, be remitted.

The Tenor of which Judgment, to be affixed to the Record to be sent back, follows:

6

corrigend. per præfat. Titum Oates in Præmiss. prosecut. Domino Regi et Doming Reginæ, in præsenti Parliamento apud Westm, a præd. Curia diet: Domini Regis et Doming Regine hic transmiss. fuit; prædict. Tytus Oates, in propria persona sua in eadem Cur. Parliamenti comparens, diversas Causas et Materias pro Error. pro Revocatione et Adnullatione Judicii prædict. placit. ad quod dict. Dominus Rex et Domina Regina per Henrie. Polexphen Mil. Attornat. suum General. comparen. placitavit quod nec in Record. et process. præd. nec in redditione Judica præd. in ullo est Errat. ; et postea, scilicet, 1° Die Junii, Anno Regui dict. Domini e 'Dominee Guliel, et Maria Primo supradict. in præd. Cur. Parliament. præd. dictorum 'Domini Regis et Dominæ Reginæ nune,

“Postea, scilicet, 4o Die Aprilis, Anno Reg"ni Domini Gulielmi et Domina Marie, nunc Regis et Regine Anglice, &c. Primo, Transcript. Record. et process. præd. cum omnibus ea tangen. Prætextu cujusdam Brevis de Error. corrigen. per præfat. Titum. Oates in præmiss. prosecut. dicto Domino Regi et Re-visis et per Cur. ibidem diligenter examinat

ginæ, in præsenti Parliamento, a prædicta Curia dicti Domini Regis et Reginæ, hic transmiss. fuit; præd. Titus, in eadem Cur. Parliamenti comparens, diversas Causas et Materias pro Erroribus in Record. et Process.

et plenius intellectis tam Record, et Process. præd. ac Judic. super eisdem reddit. quam præd. causis et Materiis pro Erroribus superins assignat. et allegat. maturaque Deliberatione inde habita, consideratum est per Cur. præd.

their majesties, from this House, that they would be pleased to pardon Titus Oates, and discharge him from the remaining punishments he is liable to undergo, from the two judgments of perjury against him in the court of King'sBench,"

præd. pro Revocatione et Adnullatione Ju-Parliamen. quod Judicium præd. revocetur, dicii præd. assignavit ; et postea, scilicet, 31° adnulletur, et penitus pro nullo habeatur.' Die Maii, Anno dicti Domini Regis et Domi'n Reginæ supradict. in præsenti Curia Par-ed, "That an Address might be presented to On the 6th of June, the House having mor liamenti præd. visis et per Cur. ibidem dili 'genter examinatis et plenius intellectis, tam Record. et Process. præd. ac Judicio super ⚫ eisdem reddit. quam præd. Error. superius assign. pro eo quod videtur Curiæ Parliamenti præd. quod Record. illud in nullo vi⚫tiosum aut defectivum existit, et quod in Record. illo in nullo fuit Errati deo ad tunc et ibidem consideratum est per eandem Curiam Parliamenti præd. quod Judic. præd. in omnibus affirmetur, et in omni suo Robore stet 'et Effectu."

earl of Macclesfield, earl of Nottingham, bishop The Lord President, the earl of Bridgewater, of St. Asaph, bishop of Sarum, lord Wharton, and lord Godolphin, were appointed forthwith to draw an Address to this effect, and report it to the House.

The Lord President reported the form of an Address, which was as follows:

Majesties.

On the 2d of June leave was given for the bringing in a bill to secure persons from the prejudices which may come by the oaths of Titus Oates but of this bill I find nothing fur-To the King and Queen's most excellent ther in the journal. On the same day after hearing counsel at the bar, to argue errors assigned by Titus Oates, upon a Writ of Error brought into this House, from the Court of King'sbench, the 4th day of April last past, to which James duke of Albany, afterwards late king of England, &c. was defendant, upon an action of Scandalum Magnatum :

After due consideration had of what was of fered by counsel thereupon, the Lords Spiritual and Temporal in parliament assembled do order and adjudge, That the said Judgment, given against Titus Oates aforesaid, shall be, and is hereby, reversed.

The Tenor of which Judgment, to be affixed to the Record, follows:

Parliament assembled, do make it our humble "We, the Lords Spiritual and Temporal in request to your Majesties, That whereas Titus Oates, clerk, hath already received a severe punishment for the perjury whereof he hath been formerly convicted, and that some of the said punishments will be still continued upon him, unless they shall be remitted by your Majesties gracious pardon :

to grant your pardon to the said Titus Oates, to "Your majesties will be graciously pleased discharge him from the remaining part of those punishments, which he will otherwise be liable to undergo,"

This Address was read, and agreed to.

Et Postea, scilicet, Quarto Die Aprilis, Ordered, by the Lords Spiritual and TemAnno Regni Domini Guil'mi et Domine poral in Parliament assembled, That the Lord Mariæ Regis et Reginæ Angl. &c. Primo, President, the Lord Great Chamberlain, and Transcript. Record. et Process. præd. cum the earl of Nottingham, do attend their Ma'omnibus ea tangen. Prætextu cujusdam Bre-jesties, with the Address of this House cor'vis dict. Domini Regis et Regina, de Error cerning Titus Oates.

On the next day the Lord President reported that the Lords had attended the king with the Address, and that his majesty had given order for issuing out his Pardon as desired.

ment to the king, requiring that his majesty would be graciously pleased to grant him his pardon: 2. The king's pardon in consequence of that address; and, 3. A pension of 57. a On the 11th of June, the House of Com-granted him by king Charles of 6244. 60l. and week in lieu of the several pensions formerly

mons came to this resolution:

"Resolved, That the prosecution of Titus "Oates, upon two indictments for perjury in "the court of King's-bench, was a design to "stifle the Popish plot, and that the verdicts given thereupon were corrupt; and the "judgments given thereupon were cruel and "illegal."

On the 2d of July, A bill was brought into the House of Commons to reverse the two judgments against Oates, it was passed and carried up to the Lords on the 6th, on which day it was there read a first time, but it was never passed into an act, the Lords having made some amendments in it which they would not relinquish, and to which the Commons would not agree, notwithstanding different conferences between the two Houses respecting them. For an account of the proceedings in parliament, respecting this Bill, See the fifth Vol. of Cobbett's Parl. Hist. p. 289, 386.

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tr

2001. per ann. which he had been deprived of, and which he had now again applied for, and expected to be restored to."

Sir John Reresby, under date December 26, 1680, says, "I dined with that excellent man Dr. Gunning, bishop of Ely. The famous Dr. Oates was of the company at table, and flushed with the thoughts of running down the duke of York, expressed himself of his highness and his family, in terms that bespoke him a fool and something worse; nor contented with this, but he must rail at the queen, his mother, and her present majesty. In this strain did he hurry on, while no soul dared to oppose him, for fear of being made a party of the Plot; till, no longer able to bear with the insolence of the man, I took him to task to such purpose, that he flung out of the room with some heat. The bishop told me that such was the general drift of his discourse; that he had sometimes checked him for the indecency of his talk, but tbat finding he had done it to no manner of purpose, he had desisted from any farther effort to set bounds to his viru

Upon the whole matter," says Ralph, "Oates, by the dint of the struggle, made a shift 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 STARKEY, Esq. Defendant.* to our sovereign lord the king. IN an Action brought by the Plaintiff upon the Statute, 2 Richard 2, De Scandalis Magnatum,† against the Defendant: Wherein the Plaintiff declares upon that Statute, That he is

*The MS. of this Article appears to be the hand writing of sir William Williams.

The law De Scandalis Magnatum rests on three Statutes; viz. Westminster the First (S Edw. 1.) c. 34, (as to which, see lord Coke's Second Inst. p. 225, and Barrington's Observations on Westm. Primer); 2 Ric. 2, c. 5, (as to which, see Barr. Obs. thereon); and 12 Ric. 2, c. 11.

The Stat. Westm. 1, c. 34, commands, "That none be so hardy to tell or publish any false news or tales whereby discord or occasion of discord, or slander, may grow between the king and his people or the great men of the realm, and he that doth so shall be taken and kept in prison until he hath brought into the

VOL. X.

That the Defendant maliciously devising the honour of the Plaintiff to lessen and wound; and to cause him to be reputed and taken for a person disaffected to the government, and a disturber of the peace; and to expose him to

court him which was the first author of the tale."

And by Stat. 2 Ric. 2, c. 5, "None shall devise or speak false news, lies, or other such false things of the prelates, dukes, earls, barons, and other nobles and great men of the realm, and of the chancellor, treasurer, clerk of the Privy Seal, steward of the King's House, justices of the one bench or the other, and other great officers of the realm, and he that doth shall incur the pain of the stat. Westm. 1, c. 34."

And by Stat. 12 Ric. 2, c. 11, "When any such" [person as is described in the foregoing statutes] "is taken and imprisoned, and cannot find him by whom the speech be moved, he 4 Q

his majesty's displeasure and distrust, 17 Sep. 35 Car. 2. at Wantage in the county of Berks, by conspiracy between him and sir Thomas may be punished by the advice of the council, notwithstanding the statutes of Westm. 1, c. 34; and 2 Ric. 2, c. 5."

44

Grosvenor with seven more named in the Declaration, did falsely, and maliciously, without any lawful or reasonable cause, publish a scan

[See sir William Williams's Case in this Collection, a. D. 1686.]

I have not been able to meet with a report of any of these Trials, but the following Entries which occur in the Commons' Journals shortly after the Revolution relate to some of them.

"Veneris, 22 die Novembris 1 Gulielmi et Marine. Ordered, That leave be given to bring in a Bill to reverse two Judgments obtained by the duke of Beaufort in two actions of Scandalum Magnatum, one in the Common Pleas against sir Trevor Williams, bart. for 10,0801. damages, and the other in the King's-bench against John Arnold, esq. for 10,000l. damages."

"Ordered, That there be also a clause in the aforesaid Bill, to discharge an action for Scandalum Magnatum now depending between the duke of Beaufort, and John Dutton Colt, esq."

Though the foregoing Statutes do not expressly give an action, yet it has been helden, that the party injured may maintain an action on stat. 2 Ric. 2, c. 5, upon the principle of law that an action lies on a statute which prohibits the doing an act to the prejudice of another. Though the dignity of Viscount was not enacted when these statutes were made, yet it has been holden that such dignity is within the statutes, and since the Union a peer of Scotland also may take advantage of these statutes. See Selwyn's Abridgment of the Law of Nisi Prius, title, Slander," sec. 1. Emlyn in his learned Preface to the Second Edition of the State Trials slightly mentions cases of Scandalum Maguatum, (See in this Collection, vol. 1, p. xxxi) and Mr. Christian, in a Note to 3 Blackst. Comm. 124, (15th edition) makes some observations upon them. He enters somewhat into the distinctions between Scandalum Magnatum and slander of ordinary persons, and he notices that the ac. tion for Scand. Mag. is now seldom or never resorted to. Under the title "Scandalum Mag-ments in two actions brought by the Duke of natum," some learning on the subject is collected in the Law Dictionary, edition 1809. See in this Collection some proceedings in an action de Scand. Magn. the duke of York against Titus Oates, June 18th, 1684, p. 125,

of this volume.

These actions which lord Macclesfield brought against the Cheshire Grand-Jurymen for presenting him as a seditious Addresser, &c. were part of that system of mutual legal persecution by which the Whigs and Tories tormented each other, and distracted their country during the latter years of the reign of king Charles the Second.

Bishop Burnet tells us that,

"The duke of Beaufort, lord Peterborough and some others, brought actions of Scandalum Magnatum against those who in the time of our great heat had spoke foul things of them: and great damages were given by obsequious and zealous juries. An information of a higher nature was brought against Williams, who, though he was a worthless man, yet was for his zeal chosen Speaker of the House of Commons in the two last parliaments. He had licensed the printing the votes, which had in them matters of scandal relating to some Lords. So an information was brought against him and he upon it demurred to the jurisdiction of the Court. This was driven on purpose by the duke's party, to cut off the thoughts of another parliament; since it was not to be supposed, that any House of Commons could bear the punishing the Speaker for obeying hoir orders." 1 Burnet, 591.

It appears that the Bill was read a first time on the 29th of the same mouth, and a second time on the 3rd of January following. It was then referred to a select committee, and, on the 24th, Mr. Christy reports from the Committee to whom the Bill for reversing of two Judg

Beaufort, upon the statute of Scandalis Magnatum; one against sir Trevor Williams, bart. and the other against John Arnold, esq. and also to discharge an Action depending between the said Duke and John Dutton Colt, esq. upon the said statute, was referred; "That the Duke had given sir Trevor Williams a release, under his hand and seal, of the Judgment obtained against him; and that Mr. Colt was contented to withdraw his order, and refer the matter to the Duke's honour: And that therefore the Committee had agreed to leave out of the Bill all matters relating to sir Trevor Williams and Mr. Colt: and had agreed to amend the same accordingly; and made it to relate to Mr. Arnold only: which Amendments he read in his place, with the coherence, and then delivered the same in at the Clerk's Table: where the same were once read throughout; and afterwards a second time, one by one; and, upon the question severally put thereupon, agreed unto by the House.”

"Ordered, That the Bill be ingrossed."

Three days afterwards that parliament was prorogued, and it was never again convoked. On the 20th of March following a new parliament met, and, on the third of the next month; leave was given to bring into the House of Commons "A Bill for reversing a Judgment obtained against John Arnold, esq." and the Bill was presented to the House and received. On the 4th, it was ordered to be read on the morrow morning; at which time, however, I do not find that any thing was done upon it. On the 7th the Bill was read a first time, and the House resolved,

dalous defamatory and malicious Libell, by them falsely and maliciously devised, framed, and written against the Plaintiff.

The tenor whereof follows in English in the Declaration:

We the Grand Jury sworn to enquire for 'the body of the county of Chester at the assizes held in the Common Hall of Pleas in the 'castle of Chester, upon Monday the 17th day of September, Anno Domini 1683, having 'heard his Majesty's Declaration, &c.'

The Plaintiff avers he never was disaffected to the government nor a disturber of the peace; nor guilty of any of the matters contained in that libell against him :

Whereby the Plaintiff is much wounded in his honour, hath lost the grace and good opinion of his majesty; And by reason thereof divers false rumours and scandalls are stirred and divulged among the nobles and commons of the Plaintiff, and many discords may thereby

arise:

Contra formam stat. ad damn. 10,000l. The Defendant pleads the Plaintiff ought not to have or maintain his action, quia dicit quad ad sessionem Cestr' tent. apud Cestr', in comitat' Cestr' in Communi Aula placit'

That it should be read a second time on the morrow morning. I have not found in the Journals any further mention of the Bill until Thursday the first of May, when it is entered, that "Mr. Arnold desiring leave to withdraw his Bill for reversing the Judgment given against him in the King's Bench; Ordered, That he be at liberty to withdraw the same accordingly."

The second session of that parliament commenced on the 2nd of October following, and on the 18th of November, the House of Commons Ordered, That no more private Bills be brought in to this House this session until such as are already brought in or ordered to be brought in be dispatched, except a Bill for reversing a Judgment against John Arnold, esq. in the King's-bench." On the next day, "A Bill for reversing a Judgment against John Arnold, esq. in the Court of King's-bench" was presented to the House and received. On the 21st it was read the first time, and ordered to be read a second time.

On Saturday the 29th it was ordered to be read on the Monday following, which was accordingly done; and, upon a division, the bill was ordered to be ingrossed. On the fifth of December the Bill passed the Commons, and was ordered to be carried to the Lords for their concurrence; which was done. In the House of Lords the Bill was read a first time on Saturday the 6th of December, upon which occasion a debate arose whether the Bill should be rejected. This debate was adjourned to the following Tuesday, and it was ordered, That all the Lords be then summoned to attend. On that day the debate was resumed, and the Bill was rejected.

'et secundum evidenciam et testimonium eis
'exhibitum,' of the Plaintiff, and according to
the said county,
their consciences, and to preserve the peace in

Presentaverunt (did duly present) in the English words in the declaration mentioned as was lawful for them to do; Absque boc, that the Defendant is guilty 'de premissis, &c. in narratione predict' superius specificat, et ei imposit' in predict' Comitat' Berks seu alibi extra predict',

There is in 3 Mod. Rep. 41, a short Note concerning a collateral point which arose out of an action brought by lord Macclesfield against sir Thomas Grosvenor, foreman of the Cheshire Grand-jury, by which the presentment of the earl had been made. The word 'tedious' appears to be twice printed instead of the word seditious' in this Note, which is as follows:

"The Plaintiff brought an Action upon the statute De Scandalis Magnatum against sir Thomas Grosvenor, for that he being foreman of the Grand-jury in Cheshire, spoke these words of the plaintiff, "He is a tedious man, and a promoter of sedition and tedious addresses."

“The Plaintiff desired that the Defendant might put in special bail; but the Court would not grant it, and said it was a discretionary thing, and not to be demanded of right: it was denied to the Duke of Norfolk, unless oath made of the words spoken.

"The Court therefore ordered common bail to be filed."

Narcissus Luttrell, in the All Souls' Library, In the MS." Historical Account," &c. by is the following Entry;

"1683. Oct. 4th. The Grand-juries at the Quarter Sessions for the county of Sussex, held at Midhurst, and for the county of Chester, have presented the most considerable of the Whig Party as disloyal and disaffected; amongst whom are some noblemen, divers knights and esquires, and many gentlemen, who any ways favor the Whig Party."

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

* The motives, circumstances, and consequences of Monmouth's progress (A. D. 1679), in quest of popularity, are related by different authors with different degrees of minuteness. Dryden thus speaks of it in the Absalom and Achitophel:

"Surrounded thus with friends of ev'ry sort, Deluded Absalom forsakes the Court;

4. That the Plea doth not answer the De-Impatient of high hopes, urg'd with renown,