The History and Proceedings of the House of Commons: Volume 2, 1680-1695. Originally published by Chandler, London, 1742.
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Third Session of K. William's Second Parliament.
The King's Speech to both Houses.
I Appointed this Meeting of the Parliament as soon as ever the Affairs abroad would admit of my return into England, that you might have the more Time to consider of the best and most effectual Ways and Means for the carrying on of the War against France this next Year.
'I am willing to hope, that the good Success with which it hath pleased God to bless my Arms in Ireland this Summer, will not only be a great Encouragement to you to proceed the more chearfully in this Work, but will be look'd upon by you as an Earnest of future Successes, which your timely Assistance to me may, by God's Blessing, procure to us all. And as I do not doubt, but you will take care to pay the Arrears of that Army, which hath been so deserving and so prosperous in the Reducement of Ireland to a peaceable Condition; so I do assure you, there shall no care be wanting on my part, to keep that Kingdom; as far as it is possible, from being burdensome to England for the future.
'I do not doubt but you are all sensible, that it will be necessary we should have a strong Fleet next Year; and as early at Sea as we had this Summer. And I must tell you, that the great Power of France will as necessarily require, that we should maintain a very considerable Army ready upon all Occasions, not only to defend ourselves from any Insult, but also to annoy the Common Enemy, where it may be most sensible to them. And I do not see how it is possible to do this with less than sixty five thousand Men.
'I shall only add, that by the Vigour and Dispatch of your Councils, and Assistance to me in this Session of Parliament, you have now an Opportunity in your Hands, which, if neglected, you can never reasonably hope to see again; not only to establish the future Quiet and Prosperity of these Kingdoms, but the Peace and Security of all Europe.'
Their Address of Congratulation.
Both Houses congratulated his Majesty upon his safe and happy Return after so many Hazards to which he had exposed his Person, and upon the Success of his Arms in the Reduction of Ireland; and at the same time they assur'd him, they would assist him to the utmost of their Power, in carrying on a vigorous War against France, in order to procure an honourable and lasting Peace to his own Dominions, and to secure his Neighbours from the Injuries and Invasions of the Common Oppressor.
On the 28th of October, a Bill was brought into the House of Commons, for Abrogating the former Oaths of Allegience and Supremacy in Ireland; and appointing the Caths to King William and Queen Mary: Which after two or three Conferences between the Lords and Commons about the Lords Amendments, which they dropt, past both Houses and had the Royal Assent.
The Thanks of the Commons given to General Ginkle. ; His Reply.
The House of Commons order'd the Lord Castleton, Sir Henry Goodrick, and five more of their Members to attend General Ginkle, with their Thanks to him and his Officers, for the great Services they had done towards the Reduction of Ireland. To which the Baron reply'd, 'I acknowledge this distinguishing Honour done me by the House of Commons, and value it above a Triumph. The Success of their Majesties Arms in Ireland, was owing chiefly to the Valour of the English; and I will take care to communicate the Vote of the House to the Officers that serv'd in Ireland, and always endeavour the Prosperity of their Majesties and their Government.'
A Supply of 3411677 l. granted. ; Conditions of the East-India Company's Charter.
By the end of the Year, the Commons finish'd the Supplies for the next Year's Service, for the Fleet and Army; amounting in all to Three Millions, Four Hundred and Eleven Thousand, Six Hundred, Seventy-Seven Pounds. But the Affair of the East-India Company took up a great deal of time; and the Conditions on which the Charter of the Company should be confirm'd were finally settled; among which were these.
Accordingly Sir Thomas Cook, Sir Thomas Rawlinson, Sir William Langhorn, and other Committee-Men, deliver'd in Proposals concerning Security to be given; which being disapprov'd, the Committee was order'd to produce the Persons they propos'd to be Security; and an Account of the Sums for which each Person should be Security; which they did to the Satisfaction of the House: upon which they order'd a Bill to be brought in, to establish the East-India Company according to the Regulations and Resolutions they had agreed on; but it came to nothing. On the contrary, several Petitions being presented against that Bill, to which the East-India Company did not give satisfactory Answers; the Commons address'd the King to dissolve it, and grant a Charter to a new Company. His Majesty's Answer was, ' It is a Motion of very great Importance to the Trade of this Kingdom, I will consider of it, and in a short time give the Commons a positive Answer.' However he was pleas'd to confer the Honour of Knighthood on Sir John Goldsborough, who was going to India in quality of the Company's Commissary-General.
Enquiries into the Conduct of the Fleet.
On the 12th of November the Commons were acquainted, that Mr. Bridges a Member of their House, cou'd give an Account of an Information given him by a Captain in their Majesties Fleet; That Sir Ralph Delaval, one of the Admirals, had lately taken a French Boat going for Ireland, with Papers of dangerous Consequence to the Government. The House order'd Mr. Bridges to name the Person, and he named the Lord Danby, Son to the Marquis of Carmarthen. A Conference was then desir'd with the Lords upon Matters relating to the Safety of the Kingdom, but the Business did not turn out as was expected. There was no Copy of a Letter from the Earl of Nottingham to Sir Ralph Delaval, in the intercepted Packet, only a Letter from the Earl to Sir Ralph, desiring him to send up that Packet; so that Storm blew over. The Commons regulated the Payment of the Forces by effective Musters; and enquired into the Miscarriages of the Fleet, the Admiralty Papers being laid before them, by two of the Commissioners, Admiral Russel and the Lord Falkland; but these Regulations and Enquiries rais'd more than answer'd the Expectations of the People, and were afterwards thought to be intended rather to delay Matters than amend them.
Dr. Welwood reprimanded by the House.
About the same time Dr. Welwood a Physician, noted afterwards for his Memoirs, publish'd a Weekly Paper, entitled, Mercurius Reformatus; but his Zeal having carry'd him farther than was agreeable to the House, on whose Proceedings he seem'd to reflect; he was order'd into Custody of the Serjeant at Arms, and reprimanded by the Speaker when he was discharg'd.
Bill to regulate Elections rejected.
A Bill was brought into the House of Commons, for regulating Abuses in Elections and Returns to Parliament, which was rejected at the third Reading. Several MoneyBills being ready for the Royal Assent, and his Majesty having given it, was pleas'd to speak as follows, the 24th of December.
King's Speech to both Houses.
I must not lose this Occasion of returning you my hearty Thanks, for the great Proofs you continue to give me of your Zeal, and Resolution to support and assist me, in the vigorous Prosecution of the War against France next Year; and I assure you it shall be my greatest Care, that the Assistance you give me may be so apply'd, as to render them more effectual for the Aids you design'd them: But I must take notice to you at the same time, with some Trouble, that the New Year is already come; while our Preparations for it are not only more backward; but those of our Enemies, as we have reason to think, in greater forwardness than they were the last Year. I find myself therefore necessitated from this Consideration, most earnestly to recommend to you, Gentlemen of the House of Commons, the hastening such farther Supplies, as you design for the Prosecution of the War.
'The Season being so far advanc'd, this present Sessions cannot admit of a much longer Continuance, and therefore I must recommend to you the Dispatch of all such other Bills, that you shall judge necessary for the Public Good.'
On New-Year's Day his Majesty was pleased to issue out his Proclamation against vicious, debauch'd and profane Persons. It being necessary for Governors, to put the People sometimes in mind of their Duty, tho' the Governed seldom take so much Notice of it as to read, or hear such Proclamations.
Bill for regulating Trials in Cases of High Treason.
Both Houses were now engag'd in a warm Dispute, raised by the Bill for regulating Trials in Cases of High Treason. This Bill having been laid aside by the Lords in the preceding Session, was now again brought in and passed by the Commons; and on November 18. sent up to the Lords for their Concurrence. The Lords, besides other Amendments, added this Clause to it: 'That upon the Trial of any Peer or Peeress, for any Treason or Misprision of Treason, all the Peers who have a right to sit and vote in Parliament, should be duly summoned, twenty days at least before every such Trial, to appear at every such Trial: And that every Peer so summoned, and appearing on such Trials, should vote in the Trial of such Peer or Peeress so to be tried; he and they first taking the Oaths mentioned in an Act of Parliament, made in the first Year of King William and Queen Mary, entitled, An Act for abrogating the Oaths of Supremacy and Allegiance, and appointing other Oaths; and subscribing and audibly repeating, the Declaration mentioned in an Act of Parliament, made in the thirteenth Year of King Charles the Second, entitled, An Act for the more effectual preserving the King's Person and Government, by disabling Papists from sitting in either House of Parliament.'
Conference on the Matter. ; Charles Montagu. ; Commons Arguments.
This Clause being disagreed to by the Commons, and at two several Conferences insisted on by the Lords, a free Conference was managed between both Houses on January 5. wherein Mr. Charles Montagu, the Chief of those who spoke for the Commons, argued, that this Bill was begun by the Commons, for the equal Advantage of such Lords and Commons, who had the Misfortune to be accused of Treason or Misprision of Treason. That when it was first returned from their Lordships, with very many Amendments, the Commons were so willing to comply with the desire of their Lordships, and to give the Bill a speedy Passage, that they agreed to all those Amendments, except two; tho' some of them were of a very nice Nature, and related to things of which the Commons have ever been most tender. That at the first Conference, the Commons gave their Lordships the Reasons that induced them to make such Amendments; which did so far satisfy their Lordships, that they did agree to the first Amendment proposed by the lower House: though they did insist upon this other, for which they deliver'd their Reasons at the second Conference. That those Reasons had been solemnly and deliberately considered by the Commons, and that they had not found them sufficient to convince them; so that they did still disagree with the Lords in the foremention'd Clause. That it was very unfortunate, that no Bill for the Relief of the Subject, in these Cases, had been tendred for many Years last past, but either this Clause, or something of the like Nature had unhappily clogged it, and been the Occasion of losing it; and as this was never thought reasonable to be admitted formerly, so neither could the Commons consent to so great an alteration of our Constitution as this would introduce; that such an Alteration was far beyond the Intent and Design, which the Commons had in preparing this Bill; that they were desirous that all Men should have a fair and equal way of making their Defence; they wished, that the Guiltless should by all necessary Provisions be protected, and allowed all just means of making their Innocence manifest; but they did not design to subvert the Essence and Constitutions of the Courts, nor intend to disable the Crown in one of its most necessary Prerogatives, or to place a Judicature in other Hands, than those to whom the Laws of England, and the Custom of the Realm had committed it. That the Clause now in Dispute struck at no less than this, and in consequence at the Alteration of the Government of England. That the Government of England is monarchical, and the Monarch has the Power of constituting Courts and Offices for Administration of Justice, though they are to proceed according to the known Rules and Limitations of Law. That the Judges are constituted by his Commission, the Sheriffs are of his Nomination and Appointment, and these are to return the Pannel of Jurors, who are to pass Sentence on the Lives of the Commoners; and that in like manner 'tis the Prerogative of the Crown, to constitute a Lord High Steward, who by his Serjeant at Arms does summon a competent Number of Peers to be Triers of their Lordships. But that this Clause took away these Powers from the High Steward, and therefore it took away so much from the regal Authority; and it would amount to no less, than to render the Subjects independent on the Crown, in the Pleas of the Crown; wherein, above all other things, the Life, Peace and Safety of the Government is concerned. That the Commons had still the same Opinion of the Honour and Integrity of the Lords, which they had received from the Experience of past times; but that their Design in passing that Bill was to prevent those Abuses in Trials for Treason in inferior Courts for the future; by means of which, during the Violence of the late Reign, they had observed many had lost their Lives. That the things to which the Bill extended were of such a Nature, that, except only in one Instance (that is, the Time of the delivery of the Copy of the Pannel; for it was agreed even in my Lord Russel's Case, That the Subject had a Right to have a Copy of the Pannel) the Lords had an equal Benefit with the Commons. That the Commons did not observe, that the Clause sent down by the Lords does relate to the like grounds of Complaint; for no Instance could be given of any Peer who suffered during the late Reign, from whence a just Cause of Objection might arise to the present Method of trying Peers; that the only two Persons prosecuted came off, though pursued with great violence: The one, because the Grand Jury could not be prevailed upon to find the Bill; the other was acquitted upon his Trial, by the Justice of his Peers. That by all the Circumstances of the Trial of the Lord Delamere, it is manifest, that if there was any Unfairness in the Method of Trial, it then would have appeared; that the Violence of those Times was such, that the Commons were not protected by that Innocency which has since been declared in Parliament; yet then the Lord Delamere was acquitted by the Justice and Honour of his Peers; and it might seem strange to future Ages, that the Commons should be contented, that the Method of Trials should be continued, which was not sufficient to protect their Innocency; and their Lordships alter that which had proved a bulwark to their Lives. That the Commons also thought the Clause to be of a different Nature from the Bill, because the Bill did not make any Alteration in the Court, or in the Nature of the Trial, which the Commons apprehended was done by the Clause; for thereby the Court is no longer constituted by the Precept of the Lord High Steward, who receives his Commission from the Crown, but the whole Order of Peers have a Right to make up the Court, and all Friends, Relations, and Accomplices of the Person are to be his Triers. That there was another great Alteration in the Constitution of the Court, as the Clause was penned; for this Method prescribed by the Clause, was for the Trial of every Peer, and according to that Method every Peer, who had a Right to sit and vote in Parliament, was to be summoned, and might appear and vote. Now it was agreed by the most learned Authors, that the Lords spiritual and temporal are Peers; and whosoever would go about to defend the contrary Opinion, would find it very difficult to answer the several Records of Parliaments, and other Authorities, where this point is asserted; particularly the well-known Claim in Parliament of Archbishop Stafford, in the Reign of Edward III. and the famous Protestation in the second of Richard II. (when the Bishops thought sit to absent themselves from Parliament, because matters of Blood were to be agitated there) wherein their Right of Peerage is directly asserted; and this Protestation being enrolled at the Desire of the King, and with the Consent of the Lords and Commons, seemed to be of the Nature of an Act of Parliament. That if the LawBooks might come in for Authorities in such a point, there are Cases, where the Pleas of the Bishops, as Peers, have been judicially allowed; so that this Clause did directly let in the Lords spiritual to try and be tried, as other Peers, who are noble by descent; not that the Commons were dissatisfied with this, if this were the only Matter, for the Lords spiritual, in all probability, by their Learning and Integrity, would greatly assist at the Trials of Peers; and the Commons were well enough disposed to let in these noble Prelates to any Privileges in point of Trial, which should be proposed by the House of Peers: But this was urged to make good the Position laid down before, that by this Clause the Constitution of the Court was quite altered; it having been taken for Law, that the Lords spiritual are to be tried as other Peers, and to be present and vote at the Trial of any other Peer, at least out of Parliament: for as to their Right in Parliament, how far they are restrained by the Canons agitare judicium, how far these Canons have been received in England, and what the Usage of Parliament hath been, was not the present Business. That had this Bill come down from the Lords first, and the Commons had added a Clause, That no Commoner should be tried for Treason, but before all the twelve Judges, and a Jury of twenty-four Persons, and to have taken away all Challenges for Consanguinity, (which, if it was considered, was somewhat of the Nature of the Lords Clause, though it did not go so far) if the Lords had thought fit to have used the same Reason for disagreeing to such a Clause, as the Commons had done in the present Case, that it was different from the Design of the Bill, it would have satisfied the Commons; and that the same Reasons, which the Commons received from the Lords at the last Conference, if they had been delivered by the Commons, would not have been convincing to their Lordships.
The Commons likewise observed, 'That the Lords in the Clause, or in their Reasons, had not stated any Cause of Objection to the present Method of their Trials, and therefore the Commons wondered, that the Lords, (as they expressed themselves in their Reasons) should conceive that they were distinguished, so as to be more exposed in their Trials, than the meanest Subject; since the Commons did not find, but that they enjoyed this great and high Privilege (upon which so great a value has been justly put) as fully as ever any of their noble Ancestors did. That it is by this Privilege the Body of the Peers has been preserved so long, that if any Lord at any time should be disposed to expose himself in defence of the common Liberties of the People, the Commons are security to him from being oppressed by false Accusations; twelve of them must agree to find a Bill before he can be indicted, and that Bill cannot be found, but upon Oaths of two credible Witnesses. That the Commons looked upon the Methods of Trials, which the Lords would alter, to have been practised in the first Year of Henry IV. and to have been well known at that time. That indeed it could not be supposed to have been an Innovation then; the Lords, who had just before deposed King Richard II. being too great to suffer such an Innovation, and Henry IV th's Title not sufficiently established to attempt it. That the Reason, why no older Instances of Proceedings before the Lord HighSteward are to be found, is this, That this very Henry IV th, when Duke of Lancaster, was the last High-Steward who ever had any fixed Interest in the Office; so that the Office being so long since ceased, all the Records are lost, and the very Nature and Power of the Office, except in this Instance of trying Peers, and determining Claims at Coronations, is likewise lost: But since that time the High-Steward being only pro hac vice, the Proceedings are commonly transmitted into other Courts, and so come to be found.
The Commons urged, 'That if there be any Objection to that Method of trying of Peers, it must be founded on a Supposition of Partiality and Unfairness in constituting a HighSteward, or in the High-Steward himself, and the Peers summoned by him, and that the Commons were unwilling to enter into such kind of Supposals. As to the partial constituting of the High-Steward, if that might be supposed, it was an Objection to the Constitution which entrusts the Crown with the Administration of Justice. That that supposal might as well extend to the Constitution of the Judges and Sheriffs, and every other part of the Administration. And if upon such a supposal or distrust, the remedy must be to take away that part of the Administration out of the Crown (as was done in this Clause) the Reason must carry the thing so far, that the Nature of the Government would be altered. As to the Partiality of the Lord High-Steward and the Peers; the Commons were unwilling to suppose that it is possible, that twelve Peers should be ever found, (for that Number must agree, or the Person accused is safe) who can so far forget their Honour, and the noble Order they are of, as for Revenge or Interest to sacrifice an innocent Person. But if the Lords would suppose that such a Number of Peers might be capable of being engaged in so ill and so dishonourable things, then the Commons thought themselves excused, if they supposed, that other Pussions and Motives might also prevail on the Peers: such as Pity in Friends, Partiality in Relations, and the Consideration of their Safety, in the case of Accomplices. The Commons farther alledged, that most Men, and especially Englishmen, enter unwillingly into matters of Blood: That the most indifferent Peers would be most likely to absent themselves, either from a Consideration of dissatisfying the Crown on the one hand, or drawing on themselves the Mischiefs of a Breach with the Family of the Person accused on the other, (for it is to be observed, that a Restitution of the Family follows generally in a short time;) or at least the Love of Security, and Care of not engaging too far (for those Trials for the most part happen in unquiet and troublesome Times) would keep different Men away. But the Care of a Friend must not fail to bring Friends to the Trials; the Concern to preserve the Family from that stain would bring Relations; and if there be any Accomplices, they must be ready for their own sakes to acquit the accused: And probably their Number must be considerable in these Cases; for it is not to be imagined, that a Lord can enter into those base and detestable Actions, which may be performed by single Persons; such as poisoning or assassinating the Prince. That the Treasons, which it can be imagined that Lords might be engaged in, must be such as arise from Faction in the State, which many must be engaged in; and if some Accident discover sufficient matter for a Charge against one of the parties, the rest, who are concealed still, would have as good Right to try their Confederate, as any indifferent Lord: And no doubt but it is their Interest to acquit him. And how far sometimes this alone might go towards turning the Scale of Justice, might deserve to be consider'd; especially in Times which might happen hereafter, because they happened heretofore, when there might be several Titles set up to the Crown, and great Parties formed. That this was a Law that was to have a perpetual continuance. And that the same Loyalty, Wisdom, and Zeal, which appeared now in their Lordships, should be derived down to all their Posterity, was a thing rather to be wished than depended upon: If therefore the Clause had a tendency towards letting in an Impunity for Treason, the Commons looked upon themselves as justified in disagreeing to it: For they thought it obvious to every one, of what consequence it would be to the Constitution, if such a Body as the Peers, who have already such Privileges of all forts, should have Impunity of Treason added, and what that must naturally end in.
'The Commons agreed with the Lords, that a good Correspondence between the two Houses was necessary for the Safety, Honour, and Greatness of the Nation; and could never think, that it was to be interrupted by their refusing any thing, which might endanger the Constitution; assuring them, the Commons would never fail in improving all true Interest of the Lords; but they persuaded themselves that the Lords would be of opinion, that to introduce any thing which tended to an Impunity for Treason, was neither the true Interest of the Crown, the Lords, nor the Commons.'
The Managers for the Lords, who spake at the Conference, were the Duke of Bolton, the Marquiss of Halifax, the Earls of Pembroke, Rochester, Mulgrave, Nottingham, Monmouth and Stamford; and the Substance of what they alledged, was,
Arguments of the Lords.
'That the Lords were sorry to be of opinion different from the Commons, especially in a Clause of so great Importance, which did concern not only their well-being, but their being. That they had not differed from the Commons in any thing propounded for their Security; and hoped the Commons would have the same Consideration for theirs. That nothing was so proper for a Parliament, as to provide Defences for Innocency; that, in ill Times, Necessity, in good, Prudence puts them upon it; and though these were good Times, in respect of the present Government, yet they might say, they were unquiet and unsafe: and since none but a good Prince would ever pass such Laws as these are, this was the most proper time to provide for the Subjects; for a good King would not only be willing to protect them while he lives, but to provide for their Security after his Death. That this concerned not only themselves, and therefore they would speak the more freely; that 'tis too narrow a Consideration for a Parliament to seek only their present Ends; that their Ancestors had farther Thoughts, and the Lords did not doubt but the Commons would have so too. That there can be no good done in the times of Trouble and Invasion of Right, but by Agreement of both Houses; That there might come a Prince that might endeavour to invade the Liberties of the People, and then the Commons would be glad to have the Concurrence of the Lords: And they desired the Commons would consider in such a case, whether it would not be a great Discouragement for the Lords to act, unless they might be as secure, at least, as the Commons. That if there might be such Princes, was it sitting that part of the Government, which is so necessary to their Concurrence, should be under such Terms for their Lives, that they dare not oppose them with Vigour, nor act, because they lie under Shackles. That the Lords would do what is just, though this Clause should not pass, but they would be loth that these Lords that are eminent for their public Service, should be eminent for their Suffering for it.
'That in the case of Impeachments, which are the Groans of the People, and for the highest Crimes, and carry with them a greater Supposition of Guilt than any other Accusation, there all Lords must judge; but when there comes a private Prosecution, which may proceed from the Influence of particular Men, then the Lord lies under the Hardship of being tried by a few Peers, chosen to try him, when all the People may sigh and wish for him, but such a Clause would do him more good. That suppose an ill Minister should apprehend an Impeachment in Parliament, what manner of way could that Man hope better to come off by, than by being tried before a Parliament sits, where his Judges may be chosen so partially, as that he shall come off; and it shall be said no Man can legally undergo two Trials for the same Offence.
'That this way of Trial was not ancienter than Henry VIII. and that it was introduced then to take off those that he did not like. That in his time the Duke of Bucks was taken off in this manner by Cardinal Woolsey; and Anne of Bullen was condemned by her own Father. And afterwards a Party was chosen to condemn the Duke of Somerset, and the Duke of Northumberland. That the Case of the E. of H— is no good Case; nor truly reported. For the Parliament Rolls, 2 Richard IV. mention his being beheaded by the Rabble in Essex.
'That this Clause did not alter the Constitution any more, than as, in some sense, every new Law may be said to alter the Constitution. And if the Commons say it is altered, because formerly it was by a select Number, and now all must appear; that did not seem to alter the Constitution, for the High-Steward might summon them all. That the Lord High-Steward formerly summoned the Court; and he summons it still. That the Nature of the Court was not altered by the Magis or Minus, any more than the King's Bench ceases to be the same Court, when there are three or four Judges in it.
'That tho' this Clause did not (as was said) pursue the Ends of the Bill, yet either House has a power of adding what they think may make it better. And tho' this was of a different nature, there had been Instances of Additions of different natures: But this was so far from it, that it agreed entirely with it, and was as suitable and necessary as any part of it. That the Commons were not well satisfied when the Commissions of the Judges ran dur ante bene-placito: And could it be thought reasonable, tha the Lords, who are the supreme Judicature, should not stay in their Lives, Quamdie se bene gesserint? That tho the King did now appoint the Sheriffs, it was not always so: And since the Crown has made them, the Commons have this Security, that they may challenge thirty five of the Pannel peremptorily, and all the rest for Cause. But that the Judges and Sheriffs are made before the Crime committed; so that it is impossible for the Judges or Sheriffs to have prejudice against any Man; but the Lord High Steward is appointed after they know the Prisoner, and he shall be tried according to the Humour of the Times they are in. There may be Lords inclined one way or other: But in this case there is a strong thing joined with this Passion; which is making their own Fortunes by serving the present Times. That since the Trial of the Peers in the time of Parliament must be by the whole House; where is the Inconveniency, that at all times they should be tried as in Parliament? That it was a little favour the Lords asked in this Clause, considering the Privilege of Parliament, for three Years last past, had always been subsisting, and was likely to continue so during this War: So that the Objection was taken away, as to the present Government. For they would have the Advantage of a Parliamentary Trial, and possibly in time to come, there might be an Inquisition for what was done now; and it would be well to have the fairest way of Proceeding in that Matter. That in the case of the Lord Delamere, there were several Lords then in Town, and there were a great many of these Lords not chosen; and 'tis a great Question whether that noble Lord had come off as he did, if he had not receiv'd such notice from the Grand Jury, and every thing had been made out so plain. That the Argument used by the Managers, that they would not allow any thing that tends to Impunity, was a large Assertion, and ought to be an Argument against the Bill: Because it might happen, that by giving a Copy of the Indictment, and Witnesses being upon their Oaths, a guilty Man might escape, and then he had an Impunity, tho this was not intended. That all that could be done in these cases, was to put in such reasonable caution, and as far as the Bill could provide for. That this Clause could not extend to the Bishops; for it related only to Trials out of Parliament, and they are only Peers in Parliament, where they may take their Privilege to hear, and then go out again, and do not vote in Blood: And by the Word (Peers) it must be understood of such Peers only, as are Peers in respect of their Blood. That the Lords were of opinion, seven Peers were sufficient to condemn a Peer; but this made no Alteration in the Argument; for there is not much more difficulty in getting twelve than seven. Indeed there might be a greater difference, where a Crown or Government was not concerned. That the Excellency of a Jury is that they are taken ex /?/ What is the reason of this? Why, in case of false Witnesses, it is his Neighbour that is to save the Man. But what Security have the Lords, when the Lords are picked out to try them who are not of their Acquaintance? and the Lords, that know the whole Course of their Lives to be contrary to what is sworn against them, shall not be chosen. That it is implied in the Commission of the Lord High-Steward, that all the Peers should be summoned; for by the Commission, all the Peers of the Realm are commanded to attend him, and be obedient to him: So that the King does not only give Liberty, but seems to command it.'
The Commons Reply.
The Managers of the Commons, by way of Reply, said, 'That this Clause would alter the Constitution of this Court, and thereby a very considerable Part of the Constitution of the Government, and that for the worse. That it is not to be granted, that every new Law does alter the Constitution. That a new Law may be made to strengthen or restore the Constitution against Abuses; it may be declaratory, it may ascertain things that were left to reasonable Discretion, which are the Circumstances and Accidents; and notwithstanding such new Laws, the Substance of the Constitution remains the same. That so by this Bill, the Person indicted was to have a Copy of his Indictment ten Days before he should plead; whereas now by the Common Law he was to have the Indictment read to him as often as he needs, and to have Copies of so much of it, as he hath occasion to use, and reasonable Time to plead. That by this Bill he was to have his Witnesses sworn, which in some learned Men's Opinion was the Law before; however it was but a Circumstance added to the Testimony: That likewise by this Bill, he was to have a Copy of the Pannel before the Trial, whereas by the Course used now, he hath a Copy a reasonable time before; and that by the Law now he is to have a reasonable time to prepare for his Trial, which Time this Bill ascertained to a Number of Days. But the Commons urged, that the Alteration by the Clause in question, was in a most substantial part, and which highly affected the Constitution of the Government.
'That if a like Clause were brought in, That every Commoner should be tried by all the Freeholders of the County that would appear (or such of them as they should depute) it could not be well denied, that this were a Change in the Constitution of the Government. That it might as well be said, that it is not any altering of the Constitution, to divest the Crown of the Power of making Judges in Courts of Law and Equity, and other Courts; or making Justices of the Peace, or other Officers. That it was granted in Parliament, 28 Edw. I. that the People of any County should chuse the Sheriffs; but thereupon ensued such Factions, Confusions and Mischiefs in the County, that by the Desire of the People in Parliament, Edw. II. the Power of making Sheriffs was settled in the Crown. That though the High-Steward be said to be the Court, yet the Peer's Tryers are so necessary a Part of the Court, that the Conviction or Acquittal depends entirely on them; and therefore not only the Number of Triers, but the Nature of the Court might be properly affirmed to be altered by this Clause. That the Commons were surprized when they heard it alledged, that this Court and Course of Trial was first introduced in Henry VIIIth's Time, by Cardinal Woolsey, in the case of the Duke of Bucks; and that all Trials of Peers before were in Parliament. That the Statute made 15 Edw. III. manifestly proves the contrary; it ordained that Peers should be tried by the Peers in Parliament; but provides, that if any Peer should chuse to be tried elsewhere than in Parliament, he might. That indeed, the Statute was repealed, 17 Edw. III (because it was so injurious to the Prerogative) but yet it shews there was then such a Court and Course of Trial as this, out of Parliament; for they could not in Edw. III's time divine, that there should be such a new Court and Manner of Trial erected in Henry VIIth's time. That the Trial of the Earl of H—, Henry IV. reported in the Year-Books, is no more to be questioned, than any other Case there: And it is cited as authentic, by Stampford, in his learned Treatise of the Pleas of the Crown: And his opinion also is, that this way of Trial was meant in the Judicium Parium, mentioned in Magna Charta; and Stampford is of greater Authority in this behalf, for that he was cotemporary to the Reign of Henry VIII. and could not have been unacquainted with this Innovation, if such there had been made in that time. That the very Clause now in question did affirm the Legality of this way of Trial; for it distinguishes Treasons, which corrupt the Blood, from others, and left all other Treasons and all Felony to be tried by Peers summoned by the High-Steward, as was now used; which shewed too, that there was no great danger apprehended to the Peers from this kind of Trial. That the Commons did not admit that a Peer can be convicted by seven Peers; that there must be twelve at least to concur in the Verdict; That it is not only said by my Lord Coke, but the Law is, That no Man shall suffer capitally at the King's Suit, unless his Offence be formed by twenty four at least; that is, twelve to find the Indictment, and twelve to give the Verdict. That twelve Peers must agree in the Verdict, was resolved in the Lord Dacre's Case, 26 Hen. VIII. which is remembered in Moor's Reports And that the Case of every Peer that has been convicted is a Proof of this; for it cannot be shewn that ever any Peer was convicted by fewer than twelve. That this Duodecim Vir. Judicium (some time in use in foreign Countries) was always approved and established by the Law of England, and understood to be that Authority to which the Determination of contested Facts is entrusted.
'And therefore in all other Commissions and Precepts, as well as these of the High-Steward, wherein the Commission is in general Words, viz. To return or summon tot & tales, such and so many Persons, by whom the Truth of the Matter may be tried; it is to be answered and performed by the bringing of twelve Persons, who are to agree in the determining of the matter enquired of And as to that Clause which requires all Peers to be attending, it is but a Clause of the same Form and Nature, as in the Commissions of Oyer and Terminer, and other Commissions; and imports no more than that all Persons should attend, that are required to do so by Law; and it can be no more inferred from these Words, that the High-Steward is to summon all the Peers, than from the like Words in other Commissions, that all Freeholders are to be summoned.
'That it is the common Nation of our Law, that no Man shall be convicted of a Crime, but by the unanimous Judgment of twelve unexceptionable Persons, summoned by the King's Officers; that the Commons have liberty of challenging, because that Fear and Corruption, or other Cause of Partiality may be supposed among them. That the Lords have no Challenge, but all Peers are esteemed unexceptionable, because nothing so mean and dishonourable is to be presumed among them. That their Lordships Ancestors chose to distinguish themselves from their Inferiors, and always claimed and enjoyed a Privilege, to be entrusted otherwise than the Commons are, viz. they are upon Honour, not upon Oath; are not changeable; give their Verdict seriatim; may have more than twelve on a Trial, and have claimed a liberty to eat and drink before their Verdict; and they used to value themselves upon these things, as Dignities and Privileges. That now the Commons that are forbid to speak otherwise of the present Peers, than of their Ancestors, are to be excused, if they think no otherwise of them.
'Moreover, the Commons observed, that what their Lordships had alledged, concerning the Inconveniences or Abuses that had been, or might be in this way of Trial, was grounded upon undue Suppositions concerning the Peers, or upon Mistakes, and not warranted by Experience. They said they thought it a strange and foreign Supposition, that a great and guilty Minister finding himself liable to an Impeachment next Session of Parliament, should by his Power procure himself to be tried and acquitted by an Inquest of Peers, on purpose by a Plea of autre faits to prevent a second, and true Examination of his Crimes; for he must first be indicted of the Treason, and then run a hazard whether his Power will be, and continue sufficient to oblige so many Peers to acquit him by an untrue Verdict. That there is no Example in this kind, and if such an unheard of Proceeding should ever happen, it is left to Consideration, whether a Parliament could not vindicate a Kingdom, against so gross and fraudulent a Contrivance. Besides, that the Court, as it was ordered by this Clause, would be no less liable to such Abuse. That their Lordships did not assign any sufficient Instances of any Injustice in this Court, and perhaps this Court has continued the most unblemished in point of Justice of any Court whatsoever. That in the few Trials which have been there for Treason, there have been two Acquittals, viz. of the Lord Dacres, and the Duke of Somerset, besides that of the Lord Delamere. That the Duke of Northumberland's Crime was notorious, he having been in open Rebellion against Queen Mary. That if the Earl of Wiltshire had been forced to fit on the Trial of his Daughter Anne Bullen, it seems to shew a greater fairness; and if the Court had been constituted according to this Clause, he must have been summoned; and if the Trial had been in Parliament, he (as well as all other Peers) had been obliged to come. But that the Tradition about that Matter was rectified, by the Discovery made by a Reverend Prelate, in his History of the Reformation (a Book approved of by their Lordships) where it is made appear that that Earl did not sit upon the Trial of the Queen. That if all Power must be abolished, which is possible to be abused, there must be no Power left to the King, or Lords, or Commons, and perhaps there were no harder Cases to be found, than those wherein all three have concurred, of which the attainting Cromwel Earl of Essex, without the suffering him to come from the Tower to be heard, is an instance. That if any Inquisition might be made into what is now doing, twere better to lay aside the Clause, that nobody might have any dependance, but upon the Safety of the present Government.
That the High-Steward is made pro hac vice, or after the Crime, is no singular thing; for the Justices of Oyer and Terminer, and of Goal-delivery, are made so twice a Year or oftener, and all hold their Places during the King's Pleasure. That notwithstanding this Clause, the High-Steward is still to be appointed by the King in the same manner as before; and in all Treasons, (but those mentioned) and in all Felonies he continues to have the same Power of trying a Peer, by an Inquest of Peers, summoned by his Precept, as is now used; by which alone the Lives and Fortunes of the Peers will remain exposed to as much Danger, as they were (if any there were) before this Bill. The Commons acknowledged they had known, that when a Peer hath stood indicted, a Parliament sitting, the Indictment hath been by the King's Writ of Certiorari removed into the House of Peers, there to be tried by all Peers, but they did not know that of Necessity that must be done, or that such Peers might not then be tried in the ordinary Court; and it would be highly inconvenient in case of long Parliaments, if it might not be so. But that is no concluding Argument, that because there is this extraordinary Way of Trial, therefore the ordinary should be taken away.
'That there is also another Way of Trial, which in other capital Offences concerns the Peers too, that is, by a Jury of Free-holders, which their Lordships in this Debate commend, because those Free-holders were of the Vicinage, and the Prisoner might challenge thirty five without Cause; and by this the Peers, as well as Commons, are to be tried in an Appeal of Rape, Murder, or other Felony; but it was supposed, that their Lordships would not allow it to be a good Argument, that therefore they should be ordered to be tried so in Treason and Indictments of Treason; but they held it a Privilege to be tried in such Cases by their Peers, in the Manner now used.
'That the Method of Trial appointed by this Clause was worse than this now in being, and it had nothing of the Nature and Virtue of a Trial in Parliament; for the Lords House hath Power to send for, and cause all the Peers to come (as they did upon the Trial of the late Lord Stafford) but to this intended Court none are to come, but such as voluntarily will, nor is it required, that there should be twelve, or any certain Number; if but two or three appear it is enough, and probably none would come but the Complices, and Abettors, and Favourers, and Friends, and Relations of the Party. Nor is it possible to bring together all the Peers there, as in Parliament; for in Parliament, the House of Peers may appoint or adjourn the Proceedings at or to any time or times, and as often as they think fit, till the House be full: But the Proceeding in this Court before the High Steward is the Work but of one Day.
'In the last place the Commons replied; That they did not find reason to pass this Clause from what was so much pressed by their Lordships, viz. That the Clause did provide such Defence for the Peers, as would encourage them to adventure to join boldly with the Commons, in asserting the public Liberties. For the Commons did not find, by the present Constitution, the Lives and Fortunes of innocent Peers were (as their Lordships intimated) exposed to the Will of a great and malicious Minister; and if they were, they did not see, that they would be protected by this Provision, since it extended but to some Treason, and to no Felonies; and might say, it did not deserve the Name of Adventure, for their Lordships to act only upon Terms of perfect Safety. And on the other hand, the Commons apprehended it would afford too great a Prospect of Safety to guilty Peers, and might embolden them to attempt against the Crown or public Liberties.
'The Commons acknowledged, that these were good, Times, and if they were unquiet or unsafe, 'twas in relation to the Crown, and not to the Peers, the Peerage was in no danger; the Peers had Power enough, and the Crown had not too much, nor ought to be rendered less safe; therefore the Commons would insist upon the old Ways, keep the Balance of the Government as they found it, and not change the Laws of England, which had hitherto' been used and approved'
The Lords and Commons persist in their Disagreement.
This Conference occasioned great Debates in both Houses, and was followed by three other free Conferences; the Result of all which was, that the Lords insisted upon their Clause, and that the Commons adhered to their Disagreement to it.
On the 24th of February, the King came to the House of Peers, and pass'd The Poll-Bill: The Militia-Bill: That against corresponding with their Majesties Enemies: Against Deer-stealing: That for the Settlement of the Poor: Those about Benefit of Clergy: Feeding Cattle, &c. And then clos'd this Session with the following Speech:
The King's Speech.
'And I must thank you; Gentlemen of the House of Commons, in particular, for the great Supplies you have granted for the Prosecution of the War. I assure you, I shall take care so to dispose of the Money you have given me for the public Occasions, as that the whole Nation may be entirely satisfied with the Application of it.
I think it proper to acquaint you with my Intentions of going beyond Sea very speedily, which, I am afraid, has been retarded more than is convenient for the present Posture of Affairs; and upon that Account, I think it necessary to put an end to this present Meeting; the Season of the Year being now so very far advanc'd, that it may prove of the last ill Consequence to continue it any longer.'