the Poft-Office, who are brought as Witneffes to the Bar, relating to the flopping and opening of Poft Letters tho' Letters pretended to be ftopp'd and open'd at the Poft-Office, are read as Evidence against the Prifoner. And we conceive, that the preventing any further Enquiry on thefe Heads, muft lay this House under great Difficulties, when they come to form a judgment on thofe Letters, the Validity of which will in a great Meafure, depend on the Proof given of their having been truly fopp'd and open'd, as afferted.

2. We apprehend it to be impoffible for this Houfe to determine, that the Enquiry which is defir'd, is un necellary to the Defence of the Prifoner, 'till he fhall come to make his Application; and we conceive, he fhould have the Liberty of asking what Queftions he or his Counfel think proper of the Clerks of the PoftOffice, relating to the ftopping and opening of Letters, without acquainting the Houfe, what Ufe he intends to make of their Answers: And this appears to us to be highly reafonable, effential to Juftice, and warranted by the Methods which this Houfe hath hitherto allow'd the Counsel for the Support of the Bill to proceed in, who have, during the whole Courfe of this Examination, referv'd the Application of the Evidence they have offer'd, 'till they thould judge convenient to make

it.

The next Morning (Wednesday May 8,) the Bishop of Rochefter being brought again to the Bar of the Lords House, the Counsel for the Bill went on with the rest of their Evidence, with lefs Interruption than the two preceding Days. The most remarkable Paffage in this Day's Proceeding, was, that William Wood, late Coachman to the Bishop, being produc'd as a Witnefs, that Prelate ask'd him, What Reward he had receiv'd, or been prómis'd, to depofe against his Master? Which being

prefented

prefented as a Brow-beating of the King's Evidence, the Lord Chancellor rebuked the Prifoner for it. The Counsel for the Bill having fumm'd up their Evi dence, about Four a-Clock in the Afternoon, the Lords adjourn'd to the next Day.

Accordingly, on Thurfday the 9th of May, the Houfe of Peers being fat, and the Bishop brought to their Bar, his Counfel made Remarks and Obfervations on the Evidence produc'd on the other Side, and open'd the Evidence they had to offer, in Defence of their Client, Their cheif Business being to invalidate Neynoe's Examinations, on which, great Strefs was laid by the Counfel for the Bill, they obferv'd, that what he pretended to know of the Bishop of Rochefter, was only by Hearfay from Mr. George Kelly: But that as Hearfay was never admitted as legal Proof, much lefs ought it to have any Weight in this Cafe, where a dead Man's, Neynoe's, Hearfay, was deny'd, and contradicted by Kelly, now alive. That Neynne's Examinations were neither fworn to, nor fign'd by him: But were he ftill living, and of fer'd to confirm them by Qath, they could hardly be of any Force, fince they were ready to prove, that he was drawn in to fay and unfay, to affirm or deny any thing. To this Purpofe, they offer'd to examine three Witneffes, viz. Mr. Bingley, Mr. Skeene, and Mr. Stewart, who were in the Custody of a State Meffenger, at the fame Time with Neynoe, and had an Opportunity to converfe, or communicate together; but before they enter'd upon that Examination, the Bishop taking Notice, that Mr. Chancellor of the Exchequer was as the Bar, he faid, 'It was not proper he should hear Dee pofitions that affected him. Whereupon Mr. Walpole withdrew.

Mr. Bingley being fworn, related what he knew con cerning Philip Neynoe, with whom he had a great Inti-, macy, and was topp'd with him at Deal, as they en deavour'd to go over into France, particularly, that Neynor having been taken up, fome Time before, upon Account of feveral fcurrilous Libels he had writ a gainst the Government, and publish'd in the Free-ho'der's Journal, and being under an Apprehenfion of being treated with the utmost Severity of the Law, on the one Hand, and tempted with large Promifes of Reward, on the other, he confented to be employ'd by the Minifters, and to accufe the Earl of Qrvery, the Bishop of Roche Her, and several other innocent Perfons, of having form'd

4897

a Con

a Confpiracy against the Government; That the Lord T d had declar'd a Prejudice, upon some private Account to the Bishop, and was refolv'd to pull down the Pride of that haugthy Prelate. That Mr. Walpole inftructed him (Neynoe) in private, what he should say in his Examinations before the Lords of the Council, and at divers Times, gave him great Sums of Money. That Neynoe, who all this while had nothing in View, but to impofe on those who oblig'd him to act fo villainous a Part, and to get out of their Reach, propos'd to the Minifters his going over to France, in order to gain further Intelligence of the Confpiracy, by narrowly obferv. ing the Steps of the Earl of Marr, Lord Lansdown, and other Perfons fufpected of being Agents for the Pretender in France; That Mr. Walpole feem'd at first, to approve this Overture, but whatever was the Reafon, he afterwards chang'd his Opinion, and fufpecting Neynoe's true Intention to cheat him, and give him the Slip, he caus'd him to be watch'd, and ftopp'd at Deal.

1

This Deponent (Mr. Bingley): added, that he himself had been tamper'd with, and offer'd a Reward of 3001. if he would furn Evidence against the Bishop of Rochefter, which he refus❜d to do.

The Lord Viscount Townshend, who, as well as the Chancellor of the Exchequer, was charg'd by this Depofition, in his own Vindication observ'd, that no Regard ought to be had to the Evidence of a notorious and zealous Jacobite, who had been convicted, whipt, pillory'd, and imprifon'd at Dublin, upon two Indictments, one for publishing a treasonable Book call'd Nero, the other for fpeaking treafonable Words, and this, after having taken the Oaths to the Government; all which make him a lefs credible Witnefs in the present Cafe, than if he had, in a common Tryal, been prov'd a perjur'd Witness.

Whatever Weight was laid on this Objection, Mr. Skeene confirm'd upon Oath, a great Part of Mr. Bing ley's Depofition, adding, That Neynoe, purfuant to his Inftructions from the Minifter who employ'd him, had propos'd to him to be Evidence against the Lord Orrery, and the Bishop of Rochester: But that having rejected his Propofal, he confefs'd to him, and to Mr. Stewart, that all he had done was only to amufe the Ministers 'till he could get out of their Power; but that he had rather be torn to Pieces by wild Horfes, than be an Evidence, and confirm by Oath, before a Court of Judi

cature,

cature, what he had been oblig'd to fay before the Lords of the Council; that being one Day in private with the Minifter abovemention'd, he was ftruck with fuch Remorfe and Indignation at the infamous Part he forc'd him to act, that he was upon the Point of feizing on a Sword that lay on the Table, and running him through, in order to put an End to the Confpiracy. And that this Deponent having ask'd Neynoe, Whether he knew any thing of a Plot? He anfwer'd, he knew of Two, one of Mr. Walpole's against fome great Men, the other of his own, which was only to get eighteen or twenty thoufand Pounds from Mr. Walpole; and whatever became of the first, he doubted not, but he would have. brought the other to bear, had he but once set Foot on the French Shore, and had not Bingley's Blundering marr'd all. Moreover, Mr. Skeene endeavour'd wholly to deftroy Capt. Pancier's Depofition, by saying, that he never told him any thing, but what he had himself out of the publick News-Papers.

Mr. Stewart being alfo examin'd upon Oath, confirm'd what had been depos'd by Mr. Bingley, and Mr. Skeene, adding, That Neynoe had endeavour'd to engage him to turn Evidence against the Earl of Orrery; which he refus'd to do, having never spoke but once with his Lordship, to whom he was introduc'd by a Gentleman, upon Occafion of fome Books which he was to get for him.

Most of these Particulars were confirm'd by Corbet Kynafton, Efq; who depos'd, that he had them from Mr. Bingley, Mr. Skeene, or Mr. Stewart, before Mr. Neynoe was drown'd: But little Strefs was laid by the Majority of the House of Peers, on thefe Depofitions, the three firft Witneffes being known to have been deeply engag'd in the Pretender's Caufe.

This being over, the Counfel for the Bishop labour'd to clear him from the most material Part of the Charge against him, viz. That he did dictate to Mr. George Kelly, the three Letters dated April 20, 1722, to General Dillon the late Earl of Marr, and the Pretender; fuggefting, that it could not be poffible he fhould at that Time, dictate thofe Letters being difabled in his Chamber, and conftantly attended by fome of his Servants, who were examin'd, and depos'd, That no Stranger came near him about that Time, and for fome Time before and after; and that they never knew of Mr. Kelly's being the Bifhop's Secretary, or being intimate with him, which

had he been fo, could not have efcap'd their Knowledge. The Counfel for the Bishop read alfo an Affidavit from Mr. Gordon, Banker at Boulogne, importing, That_he never receiv'd, nor forwarded any Packets from Mr. George Kelly, nor ever had any Dealings or Correfpondence with him; and they likewife examin'd Witnesses and among the reft, Erafmus Lewis, Efq; to prove how eafily Hand-Writing may be counterfeited.

Then Sir Conftantine Phipps, one of the Bishop's Counfel, fpoke in his Defence, as follows:

My Lords,

B

Y the Appointment of this Honourable Houfe, I have the Honour to attend your Lordships, as Counsel for the Reverend Prelate, the unfortunate Prifoner at the Bar; and perfwade myfelf, it will not be difficult to defend his Lordfhip from the heavy Pains and Penalties of this Bill; fince the Counfel for it confefs, that it is fupported only by circumstantial Evidence.

Con

Bills paffing into Laws for taking away Mens Liberties and Eftates by Circumftances only, are new. victions by Circumstances, were never heard of in Ages paft; and I hope, will never be known in this, or any which is to come: And though one of the Gentlemen faid that circumftantial Evidence is fufficient at this Time of Day; I hope, the Law is the fame at this Time of Day, as ever; and that the Lives and Fortunes of English Subjects will be as well protected and defended by your Lordships, as they were by your Predeceffors.

The Securities which the Laws have provided for qur Liberties and Eftates, and the Happiness, that we cannot be depriv'd of them, but by full and legal Proof, are Advantages which were obtain'd at great Expence of Blood and Treafure, by your Lordfhips Noble Ancestors; and we doubt not but you will tranfmit them to Pofterity, as entire, as they have been continu down to your Lordships.

The Law is the Rule of Mens Actions; and Perfons accus'd as Criminals for Facts committed by them, ought to be try'd by the Laws that were in Force at the Time of the Facts committed, fecundum Allegata & Probata. But Laws made ex poft facto, to punish Men for Facts which were not Offences when they were committed,

render