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THE

CASE

OF

WILLIAM

EARL of Devonshire.

Ο

N Sunday the 24th. of April, 1687. the faid Earl meeting on Collonel Culpepper in the Drawing Room in White-ball,

who had formerly affronted the faid Earl in the faid King's Palace, for which he had not received any fatisfaction, he spake to the said Collonel to go with him into the next Room, who went with him accordingly; and when they were there, the faid Earl required of him to go down Stairs, that he might have Satisfaction for the Affront done him, as aforefaid; which the Collonel refufing to do, the faid Earl ftruck him with his Stick, as is fuppos'd. This being made known to the King, the faid Earl was required by the. Lord Chief Juftice Wright, by Bbbb 4 War

Warrant to appear before him with Sureties: accordingly April 27. he did appear, and gave Bail in 30000 l. to appear the next day at the King's Bench, himself in 10000 /. and his four Sureties in 5000 . a piece, who were the Duke of Somerset, Lord Clifford the Earl of Burlington's Son, Lord De-la-mere, and Tho. Wharton, Elq; eldeft Son to Lord Wharton. The Earl appeared accordingly next morning, and then the Court told him, that bis Appearance was recorded, and fo he had Leave to depart for that time; but upon the fixth of May he appear'd there again, and being then requir'd to plead to an Information of Misdemeanour for ftriking the faid Collonel in the King's Palace, he infifted upon his Priviledge, That as he was a Peer of England, he could not be tryed for any Mifdemeanour during the Priviledge of Parliament: and it being then within time of Priviledge, be refufed to plead; the Court took time to confider of it till Monday, which was the last day of the Term, and the Earl then appeared, and delivered in his former Plea in Parchment; the Judgment given by the Houfe of Lords, in the Cafe of the Earl of Arundale, 3 Car, was urged on the behalf of the Earl, viz. That no Lord of Parliament, the Parlia ment then fitting, or within the ufual times of priviledge of Parliament, is to be imprison'd or restrain'd without fentence or order of the House, unleßit be for Treafon or Felony, or for refusing to give Surety for the Peace And alfo, that the like Priviledge was, about two years before, allow'd in the Cafe of my Lord Lovelace. The Court over-rul'd the Earl's Plea, and requir'd him to plead to the Information the first day of the next Term, and to be a Plea as of this Term; and fo he had Leave to depart,

but

but his Sureties were not called, for to fee if they would continue as his Bail. The next Term he appeared, and pleaded guilty to the Information, and fo the laft day of the Term the Court did award, That he should pay a Fine of 300001. be committed to the King's Bench till it be paid, and to find Sureties for the Peace for a year.

To all which Proceeding and Judgment three notorious Errors may be affign'd.

I. The over-ruling of the Earl's plea of Priviledge.

II. The Exceffiveness of the Fine.

III. The Commitment till it be paid.

1. The over-ruling the Earl's plea of Priviledge is a thing of that valt confequence, that it requires a great deal of time to comprehend it aright,and is of fo great an extent, that more may be faid of it than any one man can fay. The Judgment feems to be very unnatural, because an inferiour Court has taken upon it to reverfe a Judgment given in a fuperiour, of which no fuch Prefident is to be found in regular times, fcarcely in the most confufed and diforderly.

2. Because it is in Cafe of Priviledge, which is the most tender part of every Court; for if the Rights and Priviledges of any Court are made light of, the Gourt itfelf will foon come to nothing, because they are as it were the most effential part of it, if not the very Effence of the Court, for what fignifies a Court, if its Orders cannot be executed? It is better that a Court were not, than that its Priviledges fhould not be duly obferv'd, for without that it becomes a Snare and

Mif

Mischief to the People, rather than an Advantage.

3. Becaufe by this they have fet the Feet above the Head; for as they have by this declared themfelves to be fuperior to the Lords, fo it will naturally follow, that a Quarter-feffions may reverfe their Orders, or fufpend their Priviledges, and a more inferior Court hall fuperfede what the Quarterfeffions does: And thus it muft go on till the courfe of Nature is inverted.

4. Because they may as well deny a Lord, or over-rule any other Priviledge, as well as this, and fo confequently, when the House of Lords is not actually fitting, every Peer must be bebolden to the Judges for every Priviledge that he enjoys.

5. If this Judgment be according to Law, then may the King's Bench try a Peer for Misdemeanor, at the very time when the Houfe of Lords is fitting and confequently the Houfe must want Member, if the King's Bench fees it good to have it fo; and what a confufion would it make, and the confequence of it would be, is eafily difcern'd; the want of one Member makes that Houfe think itfelf to be lame as was feen in the Cafe of the Earl of Arundale, 3 Car. How many Petitions did the Lords make, and how many Meffages paffed to and fro, between the King and them, who would not proceed to any bufinefs till he was restored to his place in that Houfe? for they told the King, That no Lord of Parliament, the Parliament fitting, or within the ufual times of priviledge of Parliament, is to be imprison'd or refrain'd with out Sentence or Order of the Houfe, unleß it be for Treafon or Felony, or for refusing to give Security for the Peace. Surely the Judges did not give that Judg

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