THE Grave and Learned Speech OF SERJEANT-WILDE, (Journeyman-Judge to the House of Commons) made at a Conference with the Lords, the twelv'th of Aug. 1648. concerning the bailing of Major ROLPHE, who endeavoured to murder the KING.   printer's or publisher's device 
Imprinted, 1648.   

The Speech itself.  
I Am commanded by the House of Commons to desire your Lordship's concurrence with them for the bailing of Major Rolphe, now prisoner in the Gatehouse, which they conceive (and would have your Lordships believe) is an act not more of favour than of justice: Whether you consider (as we do) the quality of his person, or the Crime whereof he is accused: For by his imprisonment, not only his body is in great danger to be poisoned with the hellish smoke of Tobacco (wherein only deboished drunkards delight) but his righteous-Soule also (like Lots in Sodom) is vexed with the horrid blasphemous oaths, and drinking of healths of the damn-me. Cavalieres, who for their Rebellion and Treason against the State, are there justly imprisoned. And surely, my Lords, in reason he ought to be bailed; whether you look upon him as a man, and a Soldier, whose life ought not to be neglected, or as a new-Christian, of whose precious Soul there ought to be a due regard; both which (to say truth he hath ventured for the good of the Republic and the preservation of all us who have the honour to sit here this day, for the good of our Utopia: And who can tell, if he should come to a legall-tryall, how many of us he might accuse as abettors of the intended Act? But it may be objected, That the world takes notice of the Crime, and that therefore (though we know that some of your Lordships are of our mind even in this particular) it would be scandalous to bail a man for Treason against the person of the King: But (my Lords) I will as quickly remove that objection, as I did that of counterfeiting the great-Seale of England, and that briefly and in few words. If no King, than no Treason: And no doubt if those Principles be true which we have borrowed of the infallible chair (as the children of Israel did the Egyptians jewels.) It is evident, that the person whom this worthy Gentleman is supposed would have murdered by poison or pistol (it is no matter whether) is no King; especially being contrived while our votes for no Addresses to him were in force. Divers of the learned beyond the Sea (and some on this side too though not book learned) hold; That if a King be Excommunicate, he is no longer a King, and that it is lawful (at least it is not Treason) to take him away. And if so (the validity of such Excommunication being from a forreigne-power, and less inspired) Then a fortiori; if by us, and our Assembly, that have undoubted (though till now unknown) power and right: he that was an unprofitable King, be for just causes (of which we are the sole Judges) devested of all power, (by the sense of the two Houses) Then, I say, he is no King: But We conjunctly are King of England; (as Master Prynne and Master Parker by many learned, polite, and prolix Treatises (seen and allowed by Master Saint-John our Solicitor) have been more then sufficiently proved: How else could we have hanged yeoman's and Bourcher, who would have delivered up our City of Bristol: Or beheaded the two hotham's, who (upon second foolish conscientious Considerations) would have restored the Town of Hull to the pretended owner: Or Carew, who would have delivered up Plymouth to the enemy: Or executed Tomkins and chaloner, who would have set on foot the Commission of Array, in London: Or to truss up Burleigh (not the least of my services) who would have rescued the King from Carisbrook-prison: Or (to pass by many others) Kniveton, who came with the Kings-Writt to adjourn the Term: all whose Designs were only intentional, none acted: The least of which we neither could nor durst have perpetrated had not the regall-Power resided in Us; and if in Us, then certainly in none other: It being as mcuh against common reason to think, that in regality; the King and Parliament both have power, as to say that Monarchy and Anarchy are, or can be, simul & semel in one Kingdom. And this I speak as a Lawyer, being so by inheritance, my Father (though not of so public a Spirit) being so before me. Yet he never was a Judge, as I have been both at Winchester and Canterbury as your Lordships, well know. And why may not I be heir to my father's Law, as well as the Citizen's sons of London (though they have no skill in their father's trade or Profession) be made free by their father's Copy.  
Besides (My Lords) against this Gentleman there is a bare accusation, or impeachment, and that only by two prisoners, whose testimonies in all circumstances agree not; for I am sure there is great difference in their hand writings (a point worthy your Lordship's consideration) But suppose they agreed both in circumstance and substance; shall the testimony of two such men condemn so well deserving a man for a few foolish supposed Treasonable words, or intentions, and but against a titular King? for we are King in effect; we Judges of the Law, he our prisoner.  
Let us not (My Lords) give way to such a credulity. It may concern both your Lordships and us very much to be well advised before we resolve any thing to be Treason▪ acted against his person. If what, not only two but two thousand (and I may say twenty thousand more) do daily and hourly say (and would swear) concerning us, should be believed: Lord what should become of us? many thousands men and women, now being bold to say: That all we of this righteous, blessed, and reforming Parliament are Rebels, and Traitors: Nay that we are no Parliament, but a Junto of Factious, ambitious, self-seeking, and covetous men; whereof more than the one half sit there illegally, and keep honester men out of their places. That all our Votes, Orders, and Ordinances (which are an unreasonable number) are against reason, and the known Laws of the Realm: And shall we therefore believe them? if we do, than our own Consciences (which we have extended as far as may be would condemn us.  
And now (My Lords) if we neither do, nor may with safety believe so many witnesses against ourselves (though we know the matter true) why should we believe only two against a man who, for aught I know, is as honest as any of us? Nay (My Lords) I will go further yet and affirm; That if a Jury of 12. men should condemn him; yet in point of discretion, & reason of state, we may and ought not only to bail this virtuous Gentleman, but also to release and set him free.  
And for this we have a precedent within the memory of man, and it was of an honourable Gentleman, and a true Nathaniel (whose father sits among you) who was by a Council of War condemned to die as a Coward, for surrendering up of a Town which was thought tenable, and yet he was set at liberty and liveth; Vivit, imò vivit, & in Senatum venit, as it was very eloquently urged in as honest a man's case by Tully, who (though no bencher of the inner Temple) understood the Laws of England as well as myself. And I dare be bold to say, that there were more than two witnesses, to prove his guilt of the fact; and those of better quality than these, and that they which found him culpable, were men of as much honesty, and more judgement, than our ordinary Jurors, who for the most part (except some such as I found at Canterbury, where they would find me nothing but an Ignoramus) will give their verdict, as we the Judges in our wisdoms (Whatsoever the Law is) shall direct them. And lastly that those Judges were as honest men as any which we shall (now) send to judge this Gentleman; if we should (which were injurious) suffer him to be tried.  
Moreover, if that noble gentleman before mentioned, were justly condemned, than his setting at liberty and pardon was unjust (Unless by us having potestatem vitae & necis) but de facto he was set at liberty, pardoned, and lives in as much honour and reputation as ever he did. And it must be presumed that the two houses (who are infallible in their judgements) did not err in so doing. And if the King, when a King, and as a King by the judgement of the Law can do no wrong, much less can we being 500 Kings, and have all the power he had, and more.  
But may some say, (and no doubt but some will be so malicious) why should Major Rolfe be so much troubled at the smell of Tobacco having all other good accommodations, he being a man of so mean an education and occupation till within these few years that we employed men of all sorts, Trades and opinions in the forming of our Armies, and for reformation of Religion; and since bred up in the Wars which might have enured him to so much hardness as that the smell of Tobacco should no more have offended him now, then that of Shoemaker's wax, or Leather new come from the Curriers did then.  
My Lords; It is true he was by his profession a Shoemaker's Apprentice, and so was his master Philpit too, who was a while a Captain, but for his lives security went away at the first battle, which had he not done he might by this time have been a Colonel, as well as his man a Major. But my Lords what's that to the purpose? we know that Tobacco is nought, though the King never take any; His foot must not be now measured by the old last. And as the old proverb tells us; honours change manners. Was not Cato taken from the plough to the Senate? and yet it was never objected to him as any point worthy reproach, and some of us (who are not of the greatest rank of gentry, nor very great Clerks) have read (or at least heard) of a King, whose father was a Potter for which cause he did all his life time after, eat his meat in earthen dishes, and is no more dishonour to him, then to some pure seraphical Members of our house to have been Weavers, and Vinegar-men. And therefore we hope, and desire, notwithstanding these objections, or any thing else that is, or can, or shall be said, or proved against him. That (if your Lordships will not think fit to reward him for his meritorious intententions) yet that you will concur with the house of Commons to bail him; which if your Lordships shall not assent to, we doubt not but we know where to have a Justice of peace, & Quor. that will. And for the time to come we hope that the same providence which hath hitherto beyond all humane expectation kept us in our several stations, will so unite our hearts that we shall sit all together in a blessed Union, in our house, and save much of that Labour which hath hitherto been spent in Conference.   
FINIS.