The History and Proceedings of the House of Commons: Volume 3, 1695-1706. Originally published by Chandler, London, 1742.
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Fifth Parliament. ; Mr. Harley Speaker.
The new Parliament according to the Writs of Summons, met at Westminster on Feb. 6th, and was prorogued to Monday, Feb. 10th when the King came to the House of Peers, and sending for the Commons, signified to them by the Lord Keeper, that they should forthwith proceed to the Choice of a fit Person to be their Speaker, and present him to his Majesty. The next Day the Commons returning to their House, made choice of Robert Harley Esq; who was the next Day presented and approved by the King; after which, his Majesty made this Speech to both Houses.
'My Lords and Gentlemen,
'Our great misfortune in the loss of the Duke of Gloucester, hath made it absolutely necessary, that there should be a further Provision for the Succession to the Crown in the Protestant Line, after me and the Princess. The Happiness of the Nation, and the Security of our Religion, which is our chiefest Concern, seems so much to depend upon this, that I cannot doubt but it will meet with a general concurrence: And I earnestly recommend it to your early and effectual Consideration
'The Death of the late King of Spain, with the Declaration of his Successor to that Monarchy, has made so great an alteration in the Affairs abroad, that I must desire you very maturely to consider their present State; and I make no doubt but your Resolutions thereupon will be such, as shall be most conducing to the Interest and Safety of England, the Preservation of the Protestant Religion in general, and the Peace of all Europe.
'These things are of such Weight, that I have thought them most proper for the Consideration of a new Parliament, to have the more immediate Sense of the Kingdom in so great a Conjuncture.
'I must desire of you Gentlemen of the House of Commons, such Supplies as you shall judge necessary for the Service of the current Year; and I must particularly put you in mind of the Deficiencies and Public Debts occasion'd by the late War, that are yet unprovided for.
'I am obliged further to recommend to you, that you would inspect the Condition of the Fleet, and consider what Repairs or Augmentations may be requisite for the Navy, which is the great Bulwark of the English Nation, and ought at this Conjuncture most especially, to be put into a good Condition; and that you would also consider, what is proper for the better Security of those Places where the Ships are laid up in Winter.
'The Regulation and Improvement of our Trade, is of so Public Concern, that I hope it will ever have your serious Thoughts; and if you can find proper means of setting the Poor at work, you will ease your selves of a very great Burthen; and at the same time add so many useful Hands to be employed in our Manufactures, and other public Occasions.
'My Lords and Gentlemen,
'I hope there will be such an Agreement and Vigour in the Resolutions you shall take, upon the important matters now before you, as may make it appear, we are firmly united among ourselves; and in my Opinion nothing can contribute more to our Safety at home, or to our being considerable abroad.'
The Commons Address.
The Commons spent the two succeeding Days in qualifying themselves; and on the 13th began with the Business of Bribery in Elections, which was a Matter of long Debates and Censures. On the 14th, upon reading his Majesty's Speech, they came to this Resolution; (on a Division, Yeas 181. Noes 160.) 'That they would stand by and support his Majesty and his Government, and take such effectual measures as may best conduce to the Interest and Safety of England, the Preservation of the Protestant Religion, and the Peace of Europe.' This Resolution was presented to his Majesty by the whole House, on February the 17th, and the King gave them this gracious Answer.
'I thank you for this Address, and your ready Concurrence to those great Ends therein mentioned, which I take to be extremely important to the Honour and Safety of England; and I assure you, I shall never propose any thing but what is for our common Advantage and Security. Having this Occasion, I think it proper to acquaint you, that yesterday I received a Memorial from the Envoy Extraordinary of the States-General, a Translation whereof I leave with you: As to the first Part of it, I think it necessary to ask your Advice, as to the latter Part I desire your Assistance.'
A second Address. ; A third Address.
Upon the Report of the King's Answer, to their Address abovemention'd, the Commons farther Resolved, 'That an humble Address be made to his Majesty, by such Members as are of the Privy Council, that he will please to cause the Treaty between England and the States-General of the third of March, 1677, and all the renewals thereof since that time, to be laid before the House.' Which his Majesty commanded to be done by Mr. Secretary Hedges. And the House was so well satisfied, that on February the 20th they resolved, 'That an humble Address be made to his Majesty, that he will please to enter into such Negotiations, in concert with the States-General of the United Provinces, and other Potentates, as may most effectually conduce to the mutual Safety of these Kingdoms, and the States-General, and the Preservation of the Peace of Europe; and giving him Assurances of Support and Assistances, in performance of the Treaty made with the States-General, the third of March, 1677.' This Address was presented by the whole House on Friday the 21st of February. And his Majesty was pleased to return the following Answer.
'I Thank you heartily for the Advice you have given me, and your unanimous Resolution to support and assist me, in making good the Treaty mentioned in your Address; and I will immediately order my Ministers abroad, to enter into Negotiations in concert with the States-General, and other Potentates, for the attaining those great Ends which you desire. Nothing can more effectually conduce to our Security, than the Unanimity and Vigour you have shewed on this Occasion: And I shall always endeavour on my Part, to preserve and increase this mutual Trust and Confidence between us.'
First Vote in relation to the Protestant Succession.
On Consideration of that Part of his Majesty's Speech, which related to the Succession, the Commons resolved, (the 3d of March) That for the preserving the Peace and Happiness of this Kingdom, and the Security of the Protestant Religion by Law established, it is absolutely necessary, a further Declaration be made of the Limitation and Succession of the Crown, in the Protestant Line, after his Majesty, and the Princess, and the Heirs of their Bodies respectively. And that farther Provision be first made, for Security of the Rights and Liberties of the People.
Heads of the Bill of Succession.
On March the 12th, Mr. Conyers reported the further Resolutions of the Committee appointed for that purpose; and the House did then agree and resolve, 1st, That all things relating to the well-governing of this Kingdom, which are properly cognizable in the Privy-Council, shall be transacted there, and all Resolutions, taken thereupon shall be signed by the Privy-Council. 2d, That no Person whatsoever, that is not a Native of England, Scotland or Ireland, or the Dominions thereunto belonging; or who is not born of English Parents beyond the Seas (although such Person be naturalized or made Denison) shall be capable of any Grant of Lands, Tenements or Hereditaments from the Crown, to himself, or any other in Trust for him. 3d, That upon the further Limitation of the Crown, in case the same shall hereafter come to any Person not being a Native of this Kindom of England, this Nation be not obliged to engage in any War for the Defence of any Dominion, or Territories not belonging to the Crown of England, without the Consent of Parliament. 4th, That whosoever shall hereafter come to the Possession of this Crown, shall join in Communion with the Church of England as by the Law established. 5th, That no Pardon be pleadable to any Impeachment in Parliament. 6th, That no Person who shall hereafter come to the Possession of this Crown, shall go out of the Dominions of England, Scotland, or Ireland, without Consent of Parliament. 7th, That no Person who has any Office under the King, or receives a Pension from the Crown, shall be capable of serving as a Member of the House of Commons. 8th, That further Provision be made, for the confirming of all Laws and Statutes for the securing our Religion, and the Rights and Liberties of the People. 9th, That Judges Commissions be made Quam diu se bene gesserint, and their Salaries ascertained and established; but upon the Address of either House of Parliament, it may be lawful to remove them. 10th, That the Princess Sophia Dutchess Dowager of Hanover, be declared the next in Succession to the Crown of England in the Protestant Line, after his Majesty and the Princess, and the Heirs of their Bodies respectively; and that the further Limitation of the Crown be to the said Princess Sophia and the Heirs of her Body, being Protestants. 11th, That a Bill be brought in upon the said Resolutions.
On the 18th of March, the following Message was delivered to the House of Commons by Mr. Secretary Hedges, and read by the Speaker.
King's Message to the Commons.
'His Majesty having directed Mr. Stanhope, his Envoy Extraordinary and Plenipotentiary at the Hague, to enter into Negotiations in concert with the States-General of the United Provinces, and other Potentates, for the mutual Security of England and Holland, and the Preservation of the Peace of Europe, according to an Address of this House to that effect: And the said Mr. Stanhope having transmitted to his Majesty, Copies of the Demands made by himself and the Deputies of the States upon that Subject, to the French Ambassador there; his Majesty hath thought fit to communicate the same to you, it being his Majesty's gracious Intention, to acquaint you from time to time with the State and Progress of those. Negotiations, into which he has entered pursuant to your Address abovementioned. Kensington the 17th of March, 1700.'
Address on the Partition-Treaty.
When this Message was taken into the Consideration of the Commons on the 21st of March, they began with the great Obstruction to it, the Treaty of Partition: And after reading the said Message the Proposals made to the French Ambassador by 'Mr. Stanhope, and the Resolution of the States-General for treating with Monsieur d'Avaux, they resolved, That the Treaty of Partition be read; and after reading of it, they proceeded to this Resolution, 'That an humble Address be presented to his Majesty; to return the Thanks of this House for his gracious Message, wherein he is pleased to communicate his Royal Intentions, to acquaint this House from time to time with the State and Progress of those Negotiations, into which his Majesty had entered pursuant to the Address of this House. And also to lay before his Majesty the ill Consequences of the Treaty of Partition (passed under the Great Seal of England, during the sitting of Parliament, and without the Advice of the same) to the Peace of Europe, whereby such large Territories of the King of Spain's Dominions were to be delivered up to the French King.' When this Address was presented to the King, he did somewhat resent the Unkindness of it; and thought there was much more Reason to complain of the persidious Breach of the Treaty, than of the making of it. However, to decline the entering into any Defence of it, he gave this prudent Answer.
'I am glad you are pleased with my communicating to you the State of the Negotiations I have entered into, pursuant to your Address; I shall continue to inform you of the Progress that shall be made in them; and be always willing to receive your Advice thereupon; being fully persuaded, that nothing can contribute more effectually to the Happiness of this Kingdom, and the Peace of Europe, than the Concurrence of the Parliament in all my Negotiations, and a good Understanding between me and my People.'
Upon the French Ambassador's declining to give a satisfactory Answer to the Memorials presented by Mr. Stanhope and the Dutch, his Majesty sent this Message to the House of Commons.
'His Majesty having received an Account from Mr. Stanhope, his Envoy Extraordinary at the Hague, that the French Ambassador there had declared to the Pensionary, that the King his Master had no other Answer to return to the Demands made by the States-General of the United Provinces, than that he is ready to renew and confirm the Treaty of Ryswick, it being all the Security the States are to expect; and that he has no Orders to give any Answer to his Majesty's said Envoy; but if his Majesty has any thing to demand, it may be done by his Ambassador at Paris, or to the French Minister at London; and that he has no Commission to treat with any but the States. And his Majesty having also received two Resolutions of the States, and a Memorial from their Envoy here, relating to the Ships they are sending to join his Majesty's Fleet, and the Succours they desired may be hastened to them, by virtue of the Treaty made the third of March, one thousand six hundred seventy-seven: His Majesty has thought fit to communicate the whole to this House, that they may be particularly informed of the present State of Affairs abroad, where the Negotiations seem to be at an end, by the positive Answer the French Ambassador has given to the States. Which his Majesty recommends to the serious Consideration of this House, as a Matter of the greatest Weight and Consequence; and desires that they will give his Majesty such Advice thereupon, as may be for our own Security, and that of the States-General, and the Peace of Europe. Kensington, the thirty first day of March, one thousand seven hundred and one.'
Humble Advice of the Commons.
When this Message was taken into the Consideration of the House, they Resolved, nemine contradicente, April 2. 'That the humble Advice of this House be given to his Majesty, to desire, that his Majesty will be pleased to carry on the Negotiations in concert with the States-General, and take such measures therein as may most conduce to their Security; and that his Majesty will pursue the Treaty made with the States-General the third of March, 1677. and to assure his Majesty, that this House will effectually enable him to support the said Treaty of 1677.'
When this Resolution of Advice was presented to his Majesty, Mr. Secretary Hedges reported his Majesty's Answer to this effect: 'That according to the Advice of the House of Commons, his Majesty has given Orders to his Envoy Extraordinary at the Hague, to carry on the Negotiations in concert with the States-General, and to take such measures therein, as may most conduce to their Security. His Majesty thanks you for the assurance you have given, that this House will effectually enable him to support the Treaty of 1677, and will pursue the same as you advise. He does not doubt, but the readiness you have shewn upon this Occasion, will very much contribute to the obtaining such a Security as is desired.'
Resolution to impeach the Earl of Portland.
The Commons of England, not content with their Address to the King against the Treaty of Partition, proceeded to shew their Abhorrence of it, in a manner that seemed to affect our Peace at home, more than to prepare for a War abroad. For, on April the first, they Resolved, That William Earl of Portland by negotiating and concluding the Treaty of Partition, (which was destructive to the Trade of this Kingdom, and dangerous to the Peace of Europe) is guilty, and shall be impeached, of high Crimes and Misdemeanors. And they ordered Sir John Levison Gower to go up to the Lords, and at their Bar to impeach the said Earl, and to acquaint their Lordships, that they will in due time exhibit particular Articles against him. And then desired a Conference with the Lords upon matters relating to the Treaty of Partition; at which Conference the Commons delivered this Paper to the Lords.
Paper delivered to the Lords at a Conference.
It appearing by your Lordships Journal, that your Lordships have received Information of some Transactions between the Earl of Portland, and Mr. Secretary Vernon, relating to the Partition of the Spanish Monarchy, the Commons having the said Matter under their Consideration, desire your Lordships will be pleased to communicate to the Commons, what Informations your Lordships have had, of any Transactions relating to any Negotiations or Treaties of Partition of the Spanish Monarchy, by Letters or otherwise. And the Commons are fully assured, that your Lordships will readily concur in assisting them in this Enquiry, which they conceive absolutely necessary for the Safety and Honour of this Kingdom, and the Preservation of the Peace of Europe.'
The Lords ordered the two Latin Commissions of Powers granted to the Earls of Portland and Jersey, for Negotiating the said Treaties, one dated the 1st of July, 1699, the other on the 2d of January, 1700, as also a private Paper of the Lord Portland's running thus:
A printed Paper of the Earl of Portland's.
'At the beginning of the Summer of the Year 1699, when I was in Holland, at my Country-House, and when the King would have me concerned in the Negotiation of this Treaty with the Emperor, the French King, and the States; being very unwilling to meddle with Business again, from which I was retired, before I would engage myself, I advised with my Friends in Holland, and writ into England to Mr. Secretary Vernon, as my particular Friend, whether it was advisable for me to engage in any Business again? To which Mr. Vernon answered in substance, that this would not engage me but for a little while: That I being upon the Place, and generally acquainted with the Foreign Ministers, it would be easier for the King, and more proper for me to be employed in it, than any body else, that must be otherwise sent for on purpose.'
Impeachment of the Lord Somers.
The next Person whom the Commons intended to call upon, was John Lord Somers, late Lord-Chancellor of England, on whose Judgment and Fidelity the King had very much relied: His Lordship being sensible of the Storm that was coming on, desired the Earl of Portland, with leave of the House, to declare if he pleased, whether the Lord Somers's Name was mentioned in the Letter he received from Mr. Secretary Vernon? The Earl of Portland stood up and declared, 'That if he had remembered any such thing in the Letter, and had not inserted it in the Paper which he had delivered to the House, he should have thought he had deceived the House.'
He is heard by the House. ; Vote against him.
On April the 14th, the Lord Somers sent in an Information to the House of Commons, That having heard the House was upon a Debate concerning him, he desired that he might be admitted in and heard: This was granted, and a Chair was set by the Serjeant, a little within the Bar on the left Hand; then the Serjeant had Directions to acquaint the Lord Somers, that he might come in; and the Door being opened, his Lordship came in, and Mr. Speaker acquainted his Lordship, that he might repose himself in the Chair provided for him; and his Lordship was heard what he had to offer to the House, which he did with great plainness and presence of mind. But when his Lordship withdrew, the House came to this Resolution, 'That John Lord Somers, by advising his Majesty in the Year 1698, to the Treaty for Partition of the Spanish Monarchy, whereby large Territories of the King of Spain's Dominions, were to be delivered up to France, is guilty of a high Crime and Misdemeanour: And they ordered Mr. Harcourt to go up to the Lords, and at their Bar to impeach him, and to acquaint their Lordships, that the House will in due time exhibit particular Articles against him.' And immediately after, they Resolved, That Edward Earl of Orford, and Charles Lord Hallifax be for the same Reasons impeached of high Crimes and Misdemeanours.
And the Earl of Orford, and Lord Hallifax.
The Lord Somers had delivered to the House of Commons a Copy of the Letter which he had sent to his Majesty, in Answer to one from his Majesty, upon Occasion of that Treaty: Both which are fit to be inserted.
At Loo, 15/25 of August, 1698.
King's Letter to Lord Somers.
'I Imparted to you before I left England, that in France there was expressed to my Lord Portland some Inclination to come to an Agreement with us, concerning the Succession of the King of Spain; since which, Count Tallard has mentioned it to me, and has made Propositions, the Particulars of which my Lord Portland will write to Vernon, to whom I have given Orders not to communicate them to any other besides yourself, and to leave all to your Judgment, and to whom else you would think proper to impart them; to the end that I might know your Opinion upon so important an Affair, and which requires the greatest Secrecy. If it be fit this Negotiation should be carried on, there is no time to be lost, and you will send me the full Powers under the Great Seal, with the Names in blank, to treat with Count Tallard. I believe that this may be be done secretly, that none but you and Vernon, and those to whom you shall communicate it, may have knowledge of it; so that the Clerks who are to write the Warrant and the full Powers, may not know what it is. According to all Intelligence, the King of Spain cannot out-live the Month of October, and the least Accident may carry him off every Day. I received Yesterday your Letter of the 9th. Since my Lord Wharton cannot at this time leave England, I must think of some other to send Ambassador into Spain; if you can think of any one proper, let me know it, and be always assured of my Friendship.'
The Lord Somers's Answer.
Tunbridge Wells, 28th August, 1698. O.S.
Lord Somers's Answer.
Having your Majesty's permission to try if the Waters would contribute to the re-establishment of my Health, I was just got to this Place, when I had the Honour of your Commands; I thought the best way of executing them would be to communicate to my Lord Orford, Mr. Montagu, and the Duke of Shrewsbury (who, before I left London, had agreed upon a meeting about that time) the Subject of my Lord Portland's Letter; at the same time letting them know, how strictly your Majesty required that it should remain an absolute Secret.
'Since that time, Mr. Montagu, and Mr. Secretary are come down hither; and upon the whole discourse, three things have principally occurred, to be humbly suggested to your Majesty.
'First, That the entertaining a Proposal of this Nature, seems to be attended with very many ill Consequences, if the French did not act a sincere Part; but we were soon at ease, as to any Apprehension of this sort, being fully assured your Majesty would not act but with the utmost nicety, in an Affair wherein the Glory and Safety of Europe were so highly concerned.
'The second thing considered, was the very ill Prospect of what was like to happen upon the Death of the King of Spain, in case nothing was done previously towards the providing against that Accident, which seemed probably to be very near: The King of France having so great a Force in such a readiness, that he was in a Condition to take Possession of Spain, before any other Prince could be able to make a stand. Your Majesty is the best Judge whether this be the Case, who are so perfectly informed of the Circumstances of Parts abroad.
'But so far as relates to England, it would be want of Duty not to give your Majesty this clear Account, That there is a deadness and want of Spirit in the Nation universally, so as not at all to be disposed to the thought of entering into a new War; and that they seem to be tired out with Taxes to a degree beyond what was discerned, till it appeared upon the Occasion of the late Elections. This is the Truth of the Fact, upon which your Majesty will determine what Resolutions are proper to be taken.
'That which remained, was the Consideration what would be the Condition of Europe, if the Proposal took place: Of this we thought ourselves little capable of judging; but it seemed that if Sicily was in the French Hands, they will be entirely Masters of the Levant-Trade; that if they were possessed of Final, and those other Sea-Ports on that side, whereby Milan would be entirely shut out from Relief by Sea, or any other Commerce, that Dutchy would be of little signification in the Hands of any Prince; and that if the King of France had Possession of that Part of Guipuscoa, which is mentioned in the Proposal, besides the Ports he would have in the Ocean, it does seem he would have as easy a way of invading Spain on that side, as he now has on the side of Catalonia.
'But it is not to be hoped that France will quit its pretences, to so great a Succession, without considerable advantages; and we are all assured, your Majesty will reduce the Terms as low as can be done, and make them, as far as is possible in the present. Circumstances of things, such as may be some Foundation for the future Quiet of Christendom; which all your Subjects cannot but be convinced is your true aim. If it could be brought to pass that England might be some way a gainer by this Transaction, whether it was by the Elector of Bavaria (who is the gainer by your Majesty's interposition in this Treaty) his coming to an agreement to let us into some Trade to the Spanish Plantations, or in any other manner, it would wonderfully endear your Majesty to your English Subjects.
'It does not appear, in case this Negotiation should proceed, what is to be done on your part in order to make it take place, whether any more be required than the English and Dutch should sit still, and France itself to see it executed. If that be so, what security ought to be expected, that if, by our being neuters, the French be successful, they will confine themselves to the Terms of the Treaty, and not attempt to make further Advantages of their Success?
'I humbly beg your Majesty's Pardon that these Thoughts are so ill put together: These Waters are known to discompose and disturb the Head, so as almost totally to disable one from writing: I should be extremely troubled if my absence from London has delayed the Dispatch of the Commission one Day. You will be pleased to observe that two Persons (as the Commission is drawn) must be named in it, but the Powers may be executed by either of them. I suppose your Majesty will not think it proper to name Commissioners that are not English, or naturalized, in an Affair of this nature.
'I pray God give your Majesty Honour and Success in all your Undertakings. I am with the utmost Duty and Respect,
Sir, your Majesty's most Dutiful and most-Obedient Subject and Servant.
P. S. The Commission is wrote by Mr. Secretary, and I have had it sealed in such a manner, that no Creature has the least knowledge of the thing, besides the Persons named.
The Commons in pursuance of Resolutions taken the 15th of April, did on the 23d, present this Address to the King.
The Commons Address to the King.
'Most gracious Sovereign, We your Majesty's most dutiful and loyal Subjects, the Commons in Parliament assembled, do humbly crave leave to represent to your Majesty, the great Satisfaction we have from our late Enquiry concerning the Treaty of Partition, made in the Year 1698, (on which the Treaty of 1699 was founded) to see your Majesty's great Care of your People and this Nation, in not entering into that Negotiation without the Advice of your English Counsellors; and finding that John Lord Somers, on whose Judgment your Majesty did chiefly rely in that so important Affair, did, in concert with Edward Earl of Orford, and Charles Lord Hallifax, advise your Majesty to enter into that Treaty of so dangerous Consequence to the Trade and Welfare of this Nation; and who, to avoid the Censure which might justly be apprehended to fall on those who advised the same, endeavoured to insinuate, that your Majesty, without the Advice of your Council, entered into that Treaty, and under your sacred Name to seek Protection for what themselves had so advised: Of which Treatment of your Majesty we cannot but have a just Resentment: And that they may be no longer able to deceive your Majesty and abuse your People, we do humbly beseech your Majesty, that you will be pleased to remove John Lord Somers, Edward Earl of Orford, and Charles Lord Hallifax, from your Council and Presence for ever; as also William Earl of Portland, who transacted these Treaties, so unjust in their own Nature, and so fatal in their Consequences to this Nation, and the Peace of Europe. And we humbly crave leave upon this Occasion, to repeat our Assurances to your Majesty, that we will always stand by and support your Majesty, to the utmost of our Power, against all your Enemies both at home and abroad.'
His Majesty could not but be very uneasy at this severe dealing with his Councils and his Ministers; when he knew the Error, if any, was a Mistake of Judgment only, and that rather of his own, than of any employed by him. However, he kept his Temper, and gave this gracious Answer:
'I am willing to take all Occasions of thanking you very heartily, for the Assurances you have frequently given me, and now repeat, of standing by and supporting me against all our Enemies both at home and abroad: towards which, nothing, in my Opinion, can contribute so much as a good Correspondence between me and my People. And therefore you may depend upon it, that I will employ none in my Service, but such as shall be thought most likely to improve that mutual Trust and Confidence between us, which is so necessary in this Conjuncture, both for our own Security, and the Defence and Preservation of our Allies.'
The House of Lords was alarmed at the Address of the Commons, and did apprehend it to be an ill Precedent for Persons to be censured, before they were tried. And therefore they interposed with this counter Address to his Majesty.
The Lords Address against these Proceedings.
'We your Majesty's most loyal and dutiful Subjects, the Lords Spiritual and Temporal, in Parliament assembled, beg leave to represent to your Majesty, that the House of Commons have severally impeached at the Bar of our House, William Earl of Portland, John Lord Somers, Edward Earl of Orford, and Charles Lord Hallifax, of high Crimes and Misdemeanors, and they having acquainted us, that they will in due time exhibit particular Articles against the said Lords, and make good the same; we do most humbly beseech your Majesty, that your Majesty will be pleased not to pass any Censure upon them, until they are tried upon the said Impeachments, and Judgment be given according to the Usage of Parliament, and the Laws of the Land.'
In the mean time, his Majesty, on the 8th of May, sent this Message to the House of Commons by Mr. Secretary Hedges.
A Message from the King to the Commons.
'His Majesty having lately received an Account from Mr. Stanhope, of the present Posture of Affairs in Holland, and likewise a Letter from the States-General, which is of the greatest Importance; And his Majesty, who has so perfect a Knowledge of their Country, being entirely convinced of the Hardships of their present Condition, and the great Pressures they now lie under, which are particularly expressed in the above-mentioned Letter, has thought it absolutely necessary to communicte the same to this House; that the Expectations the States have of present Assistance from his Majesty, may more fully appear. And his Majesty does not doubt, but this House will be so justly sensible of those immediate Dangers to which they stand exposed, as to take the same into their most serious and effectual Consideration; it being most evident, that the Safety of England, as well as the very Being of Holland, does very much depend upon your Resolutions in this Matter.'
This Message was the next Day taken into the Consideration of the Commons; and they unanimosly Resolved, That this House will effectually assist his Majesty to support his Allies, in maintaining the Liberty of Europe; and will immediately provide Succours for the States-General, according to the Treaty of the 3d of March, 1677.
The Nation now began to be in a high Ferment, and the People generally disliked the Proceedings of the Commons. A bold Testimony of it was given in the County of Kent, where a Petition was drawn up in this Form.
The humble Petition of the Gentlemen, Justices of the Peace, GrandJury, and other Freeholders at the General Quarter-Sessions of the Peace holden at Maidstone, the 29th of April, in the thirteenth Year of the Reign of Our Sovereign Lord William III. over England, &c.
The Kentish Petition.
'We the Gentlemen, Justices of the Peace, Grand-Jury, and other Freeholders, at the General Quarter-Sessions at Maidstone, in Kent, deeply concerned at the dangerous Estate of this Kingdom, and of all Europe; and considering that the Fate of us and our Posterity depends upon the Wisdom of our Representatives in Parliament, think ourselves bound in Duty, humbly to lay before this Honourable House the Consequence, in this Conjuncture, of your speedy Resolution, and most sincere Endeavour to answer the great Trust reposed in you by your Country. And in regard, that from the Experience of all Ages it is manifest, no Nation can be great or happy without Union, we hope, that no Pretence whatsoever shall be able to create a Misunderstanding among ourselves, or the least Distrust of his most sacred Majesty; whose great Actions for this Nation are writ in the Hearts of his Subjects, and can never, without the blackest Ingratitude, be forgot. We most humbly implore this honourable House to have regard to the Voice of the People, that our Religion and Safety may be effectually provided for, that your loyal Addresses may be turned into Bills of Supply, and that his most sacred Majesty (whose propitious and unblemished Reign over us we pray God long to continue) may be enabled powerfully to assist his Allies before it is too late.
And your Petitioners shall ever pray, &c.
Signed by the Deputy-Lieutenants there present, above 20 Justices of the Peace, all the Grand-Jury, and other Freeholders then there.
The Gentlemen who deliver'd it, are committed.
This Petition was boldly delivered to the House on May the 8th, and Mr. William Colepepper, Mr. Tho. Colepepper, Mr. David Polehill, Mr. Justinian Campney, and Mr. Will. Hamilton, being called in, owned the Petition at the Bar, and their Hands to the same: Then they withdrew, and the Petition being read, the House Resolved, That the said Petition was scandalous, insolent, and seditious, tending to destroy the Constitution of Parliaments, and to subvert the established Government of these Realms. And then Ordered, 'That all those Gentlemen should be taken into Custody, as guilty of promoting the said Petition.' And on May the 14th, the House being informed, that Mr. Thomas Colepepper had made his Escape, and that the rest of the Persons committed, did behave themselves disorderly; the Serjeant was called in, who acquainted the House, that the said Mr. Colepepper had on Saturday last made his Escape, and that some of the others had threatned, and he was apprehensive of Force to rescue them; and prayed the Direction of the House concerning them: Whereupon, the House; ordered them to be delivered Prisoners to the Gate-House; and agreed to address his Majesty, to issue his Proclamation for apprehending Mr. Colepepper, and for puttting out of the Commissions of the Peace and Lieutenancy, such of the others as were in any of the said Commissions. But Mr. Colepepper made a voluntary Surrender of himself, and was confined with his Neighbours.
Not long after this, another Dart was shot, and supposed from the same Quiver, at the House; for the following Pamphlet, entitled by most People, The (fn. 1) Legion Letter, was sent to the Speaker.
The enclosed Memorial you are charged with in the Behalf of many thousands of the good People of England.
The Legion Letter.
'There is neither Popish, Jacobite, Seditious, Court or Party-Interest concerned in it: but Honesty and Truth. You are commanded by two hundred thousand Englishmen, to deliver it to the House of Commons, and to inform them that it is no Banter, but serious Truth; and a serious Regard to it is expected; nothing but Justice and their Duty is required; and it is required by them, who have both a Right to require, and Power to compel, viz. the People of England.
'We could have come to the House strong enough to oblige them to hear us, but we have avoided any Tumults, not desiring to embroil, but to save our native Country.
'If you refuse to communicate it to them, you will find cause in a short time to repent it.'
To Robert Harley, Esq;
Speaker to the House of Commons,
To the Knights, Citizens, and Burgesses in Parliament assembled.
A Memorial, from the Gentlemen, Freeholders and Inhabitants of the Counties of— in Behalf of themselves, and many thousands of the good People of England.
'It were to be wished you were Men of that Temper, and possessed of so much Honour, as to bear with the Truth, though it be against you; especially from us, who have so much right to tell it you: But since, even Petitions to you from your Masters,— (for such are the People who chose you) are so haughtily received, as with the committing the Authors to illegal Custody, You must give us leave, to give you this fair notice of your Misbehaviour.
'If you think fit to rectify your Errors, you will do well, and possibly may hear no more of us; but if not, assure yourselves, the Nation will not long hide their Resentments. And though there are no stated Proceedings to bring you to your Duty, yet the great Law of Reason says, and all Nations allow, that whatever Power is above Law, is burdensome and tyrannical, and may be reduced by extrajudicial Methods. You are not above the People's Resentments, they that made you Members, may reduce you to the same Rank from whence they chose you; and may give you a Taste of their abused Kindness, in Terms you may not be pleased with. When the People of England assembled in Convention, presented the Crown to his present Majesty, they annexed a Declaration of the Rights of the People, in which was expressed what was illegal and arbitrary in the former Reign, and what was claimed as of Right to be done by succeeding Kings of England.'
'In like manner, here follows, Gentlemen, a short Abridgment of the Nation's Grievances, and of your illegal and unwarrantable Practices; and a Claim of Right, which we make in the Name of ourselves, and such of the good People of England, as are justly alarmed at your Proceedings.
'1. To raise Funds for Money, and declare, by borrowing Clauses, that whosoever advances Money on those Funds, shall be reimbursed out of the next Aids, if the Funds fall short; and then give subsequent Funds, without transferring the Deficiency of the former, is a horrible Cheat on the Subject who lent the Money, a Breach of public Faith, and destructive to the Honour and Credit of Parliaments.
'2. To imprison Men who are not your own Members, by no Proceedings, but a Vote of your House, and to continue them in Custody, sine die, is illegal, a notorious Breach of the Liberty of the People, setting up a dispensing Power in the House of Commons, which your Fathers never pretended to; bidding Defiance to the Habeas Corpus Act, which is the Bulwark of Personal Liberty; destructive of the Laws, and betraying the Trust reposed in you. The King, at the same time, being obliged to ask you leave, to continue in Custody the horrid Assassinators of his Person.
'3. Committing to Custody those Gentlemen, who, at the Command of the People (whose Servants you are) came in a peaceable Way to put you in mind of your Duty, is illegal and injurious; destructive of the Subjects Liberty of Petitioning for Redress of Grievances, which has, by all Parliaments before you, been acknowledged to be their undoubted Right.
'4. Voting a Petition from the Gentlemen of Kent insolent, is ridiculous, and impertinent; because the Freeholders of England are your Superiors; and is a Contradiction in itself, and a Contempt of the English Freedom, and contrary to the Nature of Parliamentary Power.
'5. Voting People guilty of Bribery and ill Practices, and committing them as aforesaid, without Bail, and then, upon, Submission and Kneeling to your House, discharging them, after exacting exorbitant Fees by your Officers, is illegal, betraying the Justice of the Nation, selling the Liberty of the Subjects, encouraging the Extortion and Villainy of Goalers and Officers, and discountenancing the legal Prosecution of Offenders in the ordinary Course of Law.
'6. Prosecuting the Crime of Bribery in some, to serve a Party, and then proceeding no further, though Proof lay before you, is partial, and unjust, and a Scandal upon the Honour of Parliaments.
'7. Voting the Treaty of Partition fatal to Europe, because it gave so much of the Spanish Dominions to the French, and not concerning yourselves to prevent their taking possession of it all: deserting the Dutch, when the French are at their doors, till it be almost too late to help them; is unjust to our Treaties, and unkind to our Confederates, dishonourable to the English Nation, and shews you very negligent of the Safety of England, and of our Protestant Neighbours.
'8. Ordering immediate Hearings to trifling Petitions, to please Parties in Elections; and postponing the Petition of a Widow, for the Blood of her murdered Daughter, without giving it a reading, is an illegal Delay of Justice, dishonourable to the public Justice of the Nation.
'9. Addressing the King to displace his Friends, upon bare Surmises, before the legal Trial, or any Article proved, is illegal, and inverting the Law, and making Execution go before Judgment; contrary to the true Sense of the Law, which esteems every Man a good Man, till something appears to the contrary.
'10. Delaying Proceedings upon capital Impeachments, to blast the Reputation of the Persons, without proving the Fact, is illegal and oppressive, destructive to the Liberty of Englishmen, a Delay of Justice, and a Reproach of Parliaments.
'11. Suffering saucy, indecent Reproaches upon his Majesty's Person, to be publicly made in your House, particularly that impudent Scandal of Parliaments John How, without shewing such Resentments as you ought to do; the said John How saying openly, That his Majesty had made a felonious Treaty to rob his Neighbours; insinuating that the Partition Treaty (which was every way as just as blowing up one Man's House to save another's) was a Combination of the King to rob the Crown of Spain of its due: This is making a Billingsgate of the House, and setting up to bully your Sovereign, contrary to the Intent and Meaning of the Freedom of Speech, which you claim as a Right; is scandalous to Parliaments, undutiful and unmannerly, and a Reproach to the whole Nation.
'12. Your Speaker exacting the exorbitant Rate of 10 l. per diem for the Votes, and giving the Printer Encouragement to raise it on the People, by selling them at 4 d. per Sheet, is an illegal and arbitrary Exaction, dishonourable to the House, and burdensome to the People.
'13. Neglecting to pay the Nation's Debts, compounding for Interest, and postponing Petitions, is illegal, dishonourable, and destructive of the public Faith.
'14. Publicly neglecting the great Work of Reformation of Manners, though often pressed to it by the King, to the great Dishonour of God and Encouragement of Vice, is a neglect of your Duty, and an Abuse of the Trust reposed in you by God, his Majesty, and the People.
'15. Being scandalously vicious yourselves, both in your Minds and Religion, lewd in Life, and erroneous in Doctrine, having public Blasphemers, and impudent Denyers of our Saviour's Divinity among you, and suffering them unreproved and unpunished, to the infinite regret of all good Christians, and the just Abhorrence of the whole Nation.
'Wherefore, in a sad Prospect of the impending Ruin of our native Country, while Parliaments (which ought to be the Security and Defence of our Laws and Constitution) betray their Trust, and abuse the People whom they should protect: And no other Way being left us, but the Force which we are very loth to make use of, that Posterity may know we did not insensibly fall under the Tyranny of a prevailing Party, we do hereby claim and declare,
'1. That it is the undoubted Right of the People of England, in case their Representatives in Parliament do not proceed according to their Duty, and the People's Interest, to inform them of their dislike, disown their Actions, and to direct them to such things as they think fit, either by Petition, Address, Proposal, Memorial, or any other peaceable Way.
'2. That the House of Commons, separately, and otherwise than by Bill legally passed into an Act, have no legal Power to suspend, or dispense with, the Laws of the Land, any more than the King has by his Prerogative.
'3. That the House of Commons have no legal Power to imprison any Person, or commit them to the Custody of Serjeants, or otherwise, (their own Members excepted) but ought to address the King to cause any Person, on good Grounds, to be apprehended; which Person so apprehended ought to have the Benefit of the Habeas Corpus Act, and be fairly brought to a Trial by due Course of Law.
'4. That, if the House of Commons, in Breach of the Laws and Liberties of the People, do betray the Trust reposed in them, and act negligently, arbitrarily and illegally; it is the undoubted Right of the People of England to call them to an Account for the same; and by Convention, Assembly, or Force, may proceed against them as Traitors and Betrayers of their Country.
'These things we think proper to declare, as the undoubted Right of the People of England, whom you serve. And in pursuance of that Right avoiding the Ceremony of Petitioning our Inferiors, for such you are by your present Circumstances, (as the Person sent is less than the Sender) we do publicly protest against all your aforesaid Actions; and, in the Name of ourselves, and all the good People of England, do require and demand,
'1. That all the public just Debts of the Nation be forthwith paid and discharged.
'2. That all Persons illegally imprisoned, as aforesaid, be either immediately discharged, or admitted to Bail, as by Law they ought to be; and the Liberty of the Subject recognized and restored.
'3. That John How aforesaid, be obliged to ask his Majesty pardon for his vile Reflections, or be immediately expelled the House.
'4. That the growing Power of France be taken into Consideration, the Succession of the Emperor to the Crown of Spain supported, and our Protestant Neighbours protected as the true Interest of England and the Protestant Religion requires.
'5. That the French King be obliged to quit Flanders, or that his Majesty be addressed to declare War against him.
'6. That suitable Supplies be granted to his Majesty, for the putting all those necessary things in execution; and that care be taken, that such Taxes as are raised, be more equally assessed and collected, and scandalous Deficiencies prevented.
'7. That the Thanks of the House may be given to those Gentlemen, who so gallantly appeared in the Behalf of their Country with the Kentish Petition, and have been so scandalously used for it.
'Thus, Gentlemen, you have your Duty laid before you, which 'tis hoped you will think of: but if you continue to neglect it, you may expect to be treated according to the Resentments of an injured Nation; for Englishmen are no more to be Slaves to Parliaments, than to Kings.
Our Name is Legion:
And we are Many.
'P.S. If you require to have this Memorial signed with our Names, it shall be done on your first Orders, and personally presented.'
The Consequence of this was, that a Complaint was made to the House, of Endeavours to raise Tumults and Seditions, in order to disturb the Public Affairs, and a Committee was appointed to draw up an Address to the King humbly to lay before him the Endeavours of several ill-dispos'd Persons to raise Tumults and Seditions in the Kingdom, and humbly to beseech his Majesty that he will provide for the public Peace and Safety.
If Mens Tongues began to be loose before, they were much more now, upon the Imprisonment of the Kentish Gentlemen: Some would have this to be the greatest Outrage upon the People's Liberty imaginable, alledging it was their undoubted Right to petition; and at this Rate we had better fall under the Oppressions of one, than so many. What did the Habeas Corpus Act signify ? That it looked as if the Nation were betrayed, and England bought and sold: Nay, somebody was so audacious, as to fix a Bill on the House of Commons Door, importing, That this Nation is to be sold, enquire within: While others, on their part said, the House of Commons was a Branch of the Government; that all Governments were absolute, in their Nature and Constitution, and so must the Commons in their respective Share of it.
Difference between the two Houses upon the Matter of Impeachment.
To return to the unhappy Difference between the two Houses, in the Case of the impeached Lords; the House of Peers seemed to think, that their Members had been impeached by the Commons, without a serious Intention to prosecute the Charge against them. And therefore on May the 5th, their Lordships sent this quickening Message to the Commons, by Sir Robert Legard, and Sir Richard Holford.
'Mr. Speaker, The Lords have commanded us to acquaint this House, that they having on the first day of April last, sent up to their Lordships an Impeachment against William Earl of Portland, of high Crimes and Misdemeanors; and having also on the fifteenth day of the same Month, severally impeached John Lord Somers, Edward Earl of Orford, and Charles Lord Hallifax, of high Crimes and Misdemeanors: Their Lordships think themselves obliged to put this House in mind, that as yet no particular Articles have been exhibited against the said Lords; which, after Impeachments, have been so long depending, is due in justice to the Persons concerned, and agreeable to the Methods of a Parliament in such Cases.'
The Commons ashamed to be upbraided with Delay, in a Matter wherein they had appeared so forward, sent answer, that Articles against the Lords impeached were preparing, and in a short time should be sent up to the House of Lords. So on May the 9th, to begin their own way, the Commons, by Colonel Bierly, sent up Articles against Edward Earl of Orford, in Maintenance of their Impeachment.
Articles of Impeachment against the Earl of Orford, together with his Replies.
'1. That in a long and expensive War, the said Earl always preferring his private Interest to the Good of the Public, in Violation of his Duty and Trust, had procured from his Majesty one or more Grant or Grants of several Manors, Messuages, &c. and also exorbitant Sums of Money.'— To which the Earl answered, ' That he having for several Years rendered to his Majesty his utmost Service and Duty as a good and loyal Subject, his Majesty was graciously pleased, upon several Occasions, to take notice of the same: and out of his wonted Bounty, and his free Will, was pleased to give to the Earl two Grants, one a Reversionary Grant for Years, of some Houses; the other Grant of the Remainder of a gross Sum, amounting to about 2000 l. a Year for five Years.'
'2. That in breach of the Trust reposed in him, whilst he was Commander-in-Chief of the Navy Royal of England, in, or near the Streights of Gibraltar, he did receive great Sums of the public Money, which he converted to his own private Use, and unlawfully procured a Privy-Seal, to discharge him from accounting to the Public for the same.—To which he answered, by denying the said Facts, and saying, 'That he did make up, and upon Oath pass his Accounts for the Moneys imprest to him, and hath his quietus est in due Course of Law upon the same.'
'3. That he did receive from the King of Spain and others, considerable Sums of Money, and great Quantities of Wine, Oil, and other Provisions for the Fleet, which he ought to have accounted for, but he converted the same to his own Use: And for securing himself from rendering any Account, he possess'd divers great Offices inconsistent, and designed as Checks one upon the other.'—To which the Earl answered, ' That whatever he received from the King of Spain, or any other for the Fleet, was duly delivered and distributed amongst the Officers and Seamen; and he denies, that he did enjoy any Offices inconsistent, or which ought to be Checks one upon the other.'
'4. That he hath clandestinely, contrary to the Law of Nations, sold and disposed of several Vessels, taken under Pretence of Prize, without Condemnation or judicial Proceedings, and converted the Money to his own Use.'— To which he answered, by denying the Fact, and saying, 'That he did from time to time give Orders that the Prizes taken should be carefully preserved, without Embezzlement, and duly proceeded against, and the Product answered as the Law directs.'
'5. That he, presiding in the Commission for Executing the Office of Lord High-Admiral of England, had discouraged and rejected the Request and Proposal of the Company trading to the East-Indies, for suppressing Piracies in the South-Seas; and had procured a Commission for one William Kidd, who had committed divers Piracies and Depredations on the High-Seas, being thereto encouraged thro the Hopes of being protected by the high Station and Interest of the said Earl.'—To which he answered, ' That he did never discourage or reject the Company's Request, unless it were by telling them, that the Admiralty, by Law, could not grant the same: And as to the Matter of Kidd, his Commission was according to Law, and his Expedition intended for the public Good and Service; and if he hath committed any Piracies, is answerable for the same; he never being ordered or encouraged by the said Earl so to do.'
'6. That while the Kingdom was under an Apprehension of an immediate Invasion from France, he, preferring his hopes of Gain to himself, to the Safety of the Public, did order Capt. Stewart, Commander of the Ship Dutchess, to deliver over, and put on board the said Kidd, a great Number of able Seamen, to the prejudice of the public Security, and to the endangering the said Ship the Dutchess, if it had been attacked by the Enemy.'—To which he answered, 'That the Men taken from on board the Dutchess, were but some of the very Persons that were just before taken from on board of Captain Kidd, and returned by their own Consent again, not being above twenty in number; and that, when all Fears of an Invasion were over and at an end.'
'7. That during the War, he did, by Misrepresentations, procure a Grant or Order for his Majesty's Ship the Dolphin, then fitted out, manned and equipped for the Service of the Public, to be employed in a private Voyage and Undertaking, for the Advantage of himself and others concerned with him.'— To which he answered, ' That what was done therein was done after the Peace concluded, and by his Majesty's Command, at the Instance and Request of other Persons, and not of the said Earl, but contrary to his Opinion.'
'8. That, during the time of his commanding the Navy Royal, he did, through Neglect, and in Contempt of Orders, unnecessarily hazard and expose the Navy, and lose the Opportunities of taking or destroying the French Ships, and suffer them to return safe into their own Harbours.'—To which he answered, ' That he is not guilty of any Neglect or Omission of his Duty herein, nor did expect, in this Particular, to be charg'd therewith, considering his faithful Services rendered against the French Fleet.'
'9. That he did, in Concert with other false and evil Counsellors, advise our sovereign Lord the King, in the Year 1698, to enter into one Treaty for dividing the Monarchy and Dominions of Spain; in pursuance whereof, in 1699, another Treaty was entered into to the like Purpose: both which Treaties were prejudicial to the Interest of the Protestant Religion, &c'—To which he answered, ' He does deny that he did advise his Majesty to enter into the Treaty of Partition; but so far as he was any ways acquainted therewith, he objected to, and gave his Opinion against the same.'
'10. That he was one of the Lords Justices, first Commissioner in the Admiralty, Commander in Chief of the Navy, one of his Majesty's Privy-Council, and Treasurer of his Majesty's Navy; or in some, or one of these Stations, during the time that all and every the Crimes before set forth were done and committed.'—To which he answered, ' That his Majesty was pleased to entrust him in the several Offices and Stations, which he had discharged with Loyalty, Faithfulness and Zeal to his Majesty and his People.'
On May the 19th, the Commons, by Mr. Harcourt, sent up Articles of Impeachment against John Lord Somers.
Articles against the Lord Somers, with his Replies.
'1st. That well knowing the most apparent evil Consequences, as well as the Injustice of the Partition of the Spanish Monarchy, he did advise his Majesty to enter into a Treaty for it; and did so far encourage and promote the same, that the said Treaty was concluded and ratified in 1698, under the Great-Seal of England, then in Custody of the said Lord Somers.—To which his Lordship answered, in a full and plain Account of all the Steps of that Treaty, referring himself to the Letters on that Subject between his Majesty and him (before-recited) ' wherein, as he conceived, he had fully and faithfully discharged his Trust, and the Duty incumbent on him.'
'2d, That for the more effectual carrying on the said Treaty, Commissions were prepared, amended, enlarged or altered by the said Lord Somers, without any lawful Warrant for his so doing; whereunto, without communicating the same to the rest of the then Lords Justices of England, or advising with the Privy-Council, he did presume to affix the Great-Seal of England, with a Blank for Commissioners Names to be afterwards inserted.'
'3d, That having affixed the Great-Seal without lawful Warrant, in hopes of concealing that evil and most dangerous Practice, after he had settled the said Commissions, he used his Endeavour to procure a Warrant to be transmitted to him, for affixing the Great-Seal, that it might not be known, but that he had it in due time'—To which second and third Articles he answered, ' That having received his Majesty's express Commands, to send to his Majesty full Power under the Great Seal for negociating the said Treaty, with Blanks for his Majesty's Commissioners Names, he thought it sufficient Warrant for him so to do. And that he did afterwards desire his Majesty that a particular Warrant for signing the said Commission might be signed and returned; not that he doubted his Majesty's said Letter to be a sufficient Warrant, but for that such Warrant would be more proper to be produced, if Occasion should require.'
'4th, That, contrary to his Duty, he affixed the Great-Seal of England to the Ratification of the said Treaty in 1698, not having communicated the same to the rest of the then Lords Justices, or advised with the Privy-Council, leaving one entire blank Sheet, and many other Blanks in the said Ratification, with an Intent to be afterwards filled up by other Persons beyond the Seas.'—To which he answered, 'That Mr. Secretary Vernon having prepared, by his Majesty's Commands, the Instruments for Ratification, with Blanks therein, he did affix the Great-Seal; which he conceives and is advised he might lawfully do, not communicating the same, because he had his Majesty's Command that the said Treaty should be kept secret.'
'5th, That in the Year 1699, another Treaty of Partition was concluded and ratified under the Great Seal, then in the Custody of the said Lord Somers, dishonourable to his Majesty, highly injurious to the Interest of the Protestant Religion, &c.—To which he answered, 'That a Draught of the said Treaty being read over in the Presence of divers of the Lords of the Privy-Council, he, the said Lord Somers, as well as others then present, did make several Objections; but they were informed by his Majesty's Plenipotentiaries for transacting this Treaty, who were also then present, that the said Treaty was so far perfected, that nothing could be altered therein; and his Majesty afterwards, by Warrant so requiring, he did affix the GreatSeal, being, as he conceives, obliged to do it.'
'6th, That whereas by the Laws and Usages of this Realm, all Commissions under the Great-Seal, for the making any Treaty or Alliance, ought to be enrolled, and entred on Record in the Court of Chancery; he, the said Lord Somers, not minding the Duty of his Office, did not in any manner enroll, or enter on Record, any of the said Commissions or Ratifications.'—To which he answered, 'He conceives it was not incumbent upon him as Lord Chancellor, to see the Commissions or Ratifications enrolled; but the Care of enrolling the same, if necessary, doth belong to the Prothonotary of the Court of Chancery.'
7th, That the said Lord Somers, contrary to his Oath as Lord Chancellor of England, did pass many great, unreasonable and exorbitant Grants, under the Great-Seal, of divers Manors, Lordships, &c. belonging to the Crown of England; and did advise, promote and procure divers like Grants of the late Forfeited Estates in Ireland, in Contempt of the Advice of the Commons of England.—To which he answered, 'He doth acknowledge, he did pass several Grants, &c. but the same were regularly passed through the proper Offices, and brought with sufficient Warrants for the Great-Seal; and believes more considerable Grants have passed in like Number of Years, in most of his Predecessors times.
8th, That he did not only receive and enjoy the Fees, Profits and Perquisites, belonging to the Great Seal, but had received an annual Pension from the Crown of 4000 l. and had further begged and procured for his own Benefit, many great, unreasonable, and exorbitant Grants of Revenues belonging to the Crown of England.'—To which he answered, 'That the annual Pension or Allowance of 4000 l. had been allowed to several of his Predecessors; but denies, he did ever beg, or use any Means or procure any Grant whatsoever for his own Benefit; but what his Majesty pleased to give him, proceeded from his Majesty's own Motion, and of his mere Bounty; and, as his Majesty was pleased to declare upon that Occasion, as an Evidence of the gracious Acceptation of the said Lord Somer's zealous Endeavours for his Service.'
'9th, That in order to procure a Grant of the said Fee-farm Rents, he did enter into several Treaties, and had many Communications with the Auditor of the Rates, and with the Clerk of the Trustees for the Sale of the said Rents, and contracted and agreed with them, as a Reward for their Discovery, one full fourth Part of all such Rents so discovered.'
'10th, That, notwithstanding the said pretended Contracts, there was not any Sum of Money really paid, but the Contracts and Payments colourably and fraudulently contrived, in Deceit of his Majesty, and Elusion of the Acts of Parliament.'—To which 9th and 10th Articles he answered, 'That after his Majesty had given Directions to the Lords of the Treasury, for granting Fee-farm Rents to the Benefit of him and his Heirs; his Majesty's intended Bounty would have been lost, without Information could be gained of such particular Rents: And therefore Application was made to the said Auditor and Clerk, as the most likely to give Information therein; but they did refuse to give any Account of such Rents, unless they might have near a fourth Part for so doing; which the said Lord Somers did, as he conceives he lawfully might, comply with. And there was not any Sum of Money paid, as the Consideration of the Grants of the said Rents, but the Contracts were made, and the Payment discharged, without any Deceit of his Majesty, or Elusion of Acts of Parliament.'
'11th, That many Rents standing in Charge for Payment of Pensions, Stipends, Salaries, Annuities, Alms, and Allowances for Schools, Churches, Bridges, &c. and many QuitRents of Mannors united and annexed to the Castle of Windsor, for Support of the same, and Maintenance of the Officers, Servants, and Attendants in the said Castle, were conveyed by the said Trustees, through the Direction and Power of the said Lord Somers, contrary to the true Intent and Meaning of the said Acts of Parliament, to the great Vexation and Oppression of many of his Majesty's good Subjects, and creating many new and unreasonable Charges on other Revenues of the Crown.' —To which he answered, 'That some things might be inserted by mistaken Informations, and not out of any Design; he denies that as to his Knowledge or Belief, any of the said Rents were ever united or annexed to the Castle of Windsor, for any purpose whatsoever; or that any Oppression or Vexation hath happened; and little or no new Charge to the Crown.'
'12th, That by the Direction of the said Lord Somers, the Persons in whose Names the Purchases were made, did furrender several of the said Rents to them granted, amounting to the Yearly value of 347 l. 11s. 5d. on Suggestion of wrong Conveyance; and procured other Rents of the Yearly Value of 391 l. 11s. 3d. to be allowed by way of reprize, as if the said Rents so surrendered had been really and bona fide purchased.'—To which he answered, 'That the Trustees for Sale of the Fee-Farm Rents, by Warrant of the Commissioners of the Treasury, did grant divers other Rents, amounting to 391l. in lieu and reprize of the 347 l. having appeared to be granted before, or not grantable by the said Trustees, or not leviable on Surrenders of such Rents; which he conceives might be and was lawfully done.'
'13th, That in the Year 1695, the said Lord Somers, being then Lord-Keeper, procured a Commission to be granted to one William Kidd, a Person of evil Fame and Reputation, and since that time convicted of Piracy; and in a Grant from his Majesty, of Ships, Vessels and Goods to be taken by the said William Kidd, unto Richard Earl Bellamont, Edmund Harrison, Merchant, Samuel Newton, Gent. and others, the Name of the said Samuel Newton was used in Trust, and for the only Benefit and Advantage of the said Lord Somers.'— To which he answered, 'That the said William Kidd had from his Majesty a Commission for preventing the Piracy of others, and to apprehend certain Pirates, and bring them to a legal Trial; the granting of which Commission was then apprehended to be necessary for the Preservation of Trade and Navigation. He does admit there was a Grant to the Earl of Bellamont, Edmund Harrison, and Samuel Newton, who was named by and in Trust for the said Lord Somers, of Ships and Goods, taken by the said William Kidd, with Account to be duly made to the Use of his Majesty, of a clear tenth Part, whereby the Public might have received Benefit, had the said Kidd faithfully discharged the Trust; which he failing to do, the Owners of the said Ship have lost all their Expences.'
14th, that as Lord Chancellor, he had, in several Causes depending before him, by many extraordinary Methods, and unwarrantable Practices, for several Years, delayed Proceedings in the said Causes; and, by colour of his Office, had made divers arbitrary and illegal Orders, and had, of his own Authority, reversed Judgments given in the Court of Exchequer, without calling the Barons before him: And had declared and affirmed in public Places of Judicature, that particular Subjects might have Rights, and Interests, without any Remedy for Recovery of the same, unless by Petition to the Person of the King only, or to that effect: Which Position was highly dangerous to the legal Constitution of this Kingdom, and absolutely destructive to the Property of the Subject.' To which he answer'd, 'That he did not delay any Proceedings longer, or otherwise than as the Circumstances and Justice of each Cause required; nor did he ever make any arbitary or illegal Order, or ever reverse any Judgment given in the Court of Exchequer, otherwise than it is warranted and allowed by the Law: Nor did ever deliver any Position whatsoever, dangerous to the legal Constitution, or destructive to the Property of the Subjects.'
A Copy of the Lord Somers's Answer was with great Dispatch delivered to the Commons on May the 24th. In the mean time, on the 21st, the Lords had sent down this second Message.
Second Message from the Lords
Mr. Speaker, the Lords command us to acquaint this House, that their Lordships having been desired by the Earl of Orford, that a Day might be appointed for his speedy Trial, their Lordships finding no issue joined by Replication of this House, think fit to give Notice thereof to this House:
'They also commanded us to acquaint this House, that they having, on the first of April last, sent up an Impeachment to their Lordships, against William Earl of Portland, for high Crimes and Misdemeanours; and having also, on the 15th of the same Month, impeached Charles Lord Hallifax, for high Crimes and Misdemeanours; and there being as yet no particular Articles exhibited against the said Lords, their Lordships think themselves obliged to put this House in mind thereof; which, after Impeachments have so long depended, is not agreeable to the usual Methods and Proceedings of Parliaments in such Cases.'
The Commons then prepared this Replication to my Lord of Orford's Answer.
Replication of the Commons to the Earl of Orford.
'The Commons have considered the Answer of Edward Earl of Orford, to the Articles of Impeachment exhibited against him by the Knights, Citizens and Burgesses assembled in Parliament, and do aver their Charge of high Crimes and Misdemeanours against him to be true, and that the said Earl is guilty in such manner as he stands accused and impeached; and that the Commons will be ready to prove their Charge against him, at such convenient Time as shall be appointed for that purpose.'
And, on the 31st, they sent this Answer to the Lords:
Their Answer to the Lords.
'In Answer to your Lordships Message of the 21st Instant, the Commons have prepared a Replication to the Earl of Orford's Answer to the Articles of Impeachment of high Crimes and Misdemeanours, exhibited against him; and at present defer bringing it up to your Lordships, because, in the Trial of the several Impeachments now depending, the Commons think it most proper, from the nature of the Evidence that will be given at the said Trials, to begin with the Trial of the Impeachment of John Lord Somers, of high Crimes and Misdemeanours.
'And as to your Lordships other Message, the Commons take it to be without Precedent and unparliamentary: They, as Prosecutors, having a liberty to exhibit their Articles of Impeachment in due time, of which they, who are to prepare them, are the proper Judges; and therefore, for your Lordships to assert, that having not yet exhibited particular Articles against William Earl of Portland, and Charles Lord Hallifax, is a hardship to them, and not agreeable to the usual Methods and Proceedings in Parliament in such Cases; does, as they conceive, tend to the Breach of that good Correspondence betwixt the two Houses, which ought to be mutually preserved.'
On the same Day, 31st May, Sir John Hoskyns, and Sir Robert Legard brought this Message to the Commons.
Third Message from the Lords.
'Mr. Speaker, the Lords have commanded us to acquaint this House, that their Lordships have appointed Monday the 9th Day of June next, for the Trial of Edward Earl of Orford, upon the Articles brought up against him by this House in Westminster-Hall; and that this House may reply, if they think fit.
'They have also commanded us to acquaint this House, that this House having, on the first Day of April last, sent up to their Lordships an Impeachment against William Earl of Portland, for high Crimes and Misdemeanours; and having also, on the 15th Day of the same Month, impeached Charles Lord Hallifax for high Crimes and Misdemeanours; and there being as yet no particular Articles exhibited against the said Lords, their Lordships think themselves obliged to put this House in mind thereof; which, after Impeachments have so long depended, is a hardship to the Persons concerned, and not agreeable to the usual Methods of Parliament in such Cases.'
Answer of the Commons.
The Commons, on the 5th of June, returned this Answer.
'The Commons, on Consideration of your Lordships Message to them of the 31st of May, concerning the Earl of Orford, think it their undoubted Right, when several Persons stand impeached before your Lordships, to bring to Trial such of them in the first place, as the Commons apprehend, from the Nature of the Evidence, ought first to be proceeded against, to the intent all such Offenders may in due time be brought to Justice; and that no Day ought to be appointed by your Lordships for the Trial of any Impeachment by the Commons, without some previous signification to your Lordships from the Commons, of their being ready to proceed thereon.
'The Commons could not receive this Message from your Lordships, without the greatest surprize; your Lordships Proceedings in this Case, being neither warranted by Proceedings, nor (as the Commons conceive) consistent with the Methods of Justice, or with Reason: Wherefore the Commons cannot agree to the Day appointed by your Lordships, for the Trial of the Earl of Orford.
'As to your Lordships Message at the same time, relating to the Earl of Portland, and Charles Lord Hallifax, the Commons take the same to be without Precedent, and unparliamentary; and conceive your Lordships frequent Repetition thereof, in a short time, after the Commons had transmitted to your Lordships their Articles against two of the impeached Lords, and were daily preparing their Articles against the others, manifestly tends to the Delay of Justice in obstructing the Trials of the impeached Lords, by introducing Disputes, in Breach of that good Correspondence between the two Houses, which ought inviolably to be preserved.'
In the mean time, the Lords, on the fourth, accosted them with another Message to this purpose.
Fourth Message from the Lords.
'Mr Speaker, The Lords do think fit, upon Occasion of the Message from this House of the 21st of May, to acquaint this House, that having been desired by the Lord Somers, that a Day may be appointed for his speedy Trial, and their Lordships, finding no issue joined by Replication of the House of Commons, judge it proper to give them notice thereof, that the Commons may reply if they think fit. And at the same time, their Lordships let the Commons know, that they will proceed to the Trial of any of the Impeached Lords whom the Commons shall be first ready to begin with, so as there may be no Occasion taken from thence, for any unreasonable Delay in the Prosecution of any of them: And further to acquaint them, having searched their own Journals, they do not find, that, after a general Impeachment, there has ever been so long a Delay of bringing up the particular Articles of Impeachment, sitting the Parliament: And therefore the Lords do think, they had reason to assert, that it was a hardship to the two Lords concerned (especially when their Lordships had put the House of Commons in mind of exhibiting such Articles) and not agreeable to the usual Proceedings in Parliament. And as the Lords do not controvert what Right the Commons may have, of impeaching in general terms, if they please; so the Lords, in whom the Judicature does entirely reside, think themselves obliged to assert, that the Right of limiting a convenient Time for bringing the particular Charge before them, for the avoiding Delay in Justice, is lodged in them.
'The Lords hope, the Commons, on their part, will be as careful not to do any thing, that may tend to the Interruption of the good Correspondence between the two Houses, as the Lords shall ever be on their part; and the best way to preserve that, is, for neither of the two Houses to exceed those Limits, which the Law and Custom of Parliament have already established.'
Conference between the two Houses open'd by Mr. Harcourt.
The Commons hereupon, June the sixth, desired a Conference with the Lords, upon the Subject-Matter of the said Message; at which Mr. Harcourt delivered himself in this manner:
'The Commons have desired this Conference, upon your Lordships Message of the fourth of June, in order to preserve a good Correspondence with your Lordships, which will always be the Endeavour of the Commons, and is at this time particularly necessary, in order to bring the impeached Lords to a speedy Trial. And because the Messages which your Lordships have thought fit to send to the Commons, and the Answers thereunto, seem not to tend towards expediting the Trials, which the Commons so much desire, but may rather furnish matter of dispute between the two Houses; the Commons therefore chuse to follow the Methods formerly used with good Success upon the like Occasion; and for the more speedy and easy adjusting and preventing any differences which have already happened, or may arise, previous to, or upon those Trials, the Commons do propose to your Lordships, that a Committee of both Houses be nominated, to consider of the most proper Ways and Methods of proceeding on Impeachments, according to the usage in Parliaments in such Cases.'
The Conference being ended, the Lords, on the ninth, sent the following Message to the Commons.
Fifth Message from the Lords.
'In Answer to the Message of the House of Commons of the fourth Instant, the Lords say, by their Message sent on the third, wherein they declare themselves ready to proceed to the Trial of any of the impeached Lords, whom the Commons shall be first ready to begin with; they have given a full Proof of their willingness to comply with the Commons, in any thing which may appear reasonable, in order to the speedy determining of the Impeachments now depending; and therefore, as the Lords conceive, the Commons had no Occasion to begin the Dispute on that head, so their Lordships decline entering into a Controversy, which seems to them to be of no Use at present.
The Lords think themselves obliged to assert their undoubted Right, to appoint a Day for the Trial of any Impeachment depending before them, if they see good Cause for it, without any previous signification from the Commons of their being ready to proceed; which Right is warranted by many Precedents, as well as consonant to Justice and Reason. And their Lordships, according to the Example of their Ancestors, will always use that Right, with a Regard to the equal and impartial Administration of Justice, and with a due care to prevent unreasonable Delays.
This being the Case, the Lords cannot but wonder, that the Commons, without any Foundation for it, should make use of Expressions, which, as their Lordships conceive, have never been used before by one House of Parliament to another; and which, if the like were returned, must necessarily destroy all good Correspondence between the two Houses.
'The last Part of the Commons Message, being in effect a repetition only of their former of the 21st of May, to which the Lords already have returned a full Answer, their Lordships think it not requisite to say any more, than that they cannot apprehend with what Colour their calling upon the House of Commons, to send up Articles against two Lords, whom the Commons have so long impeached in general Terms, can be said to tend to the delay of Justice. And therefore, as the Lords think, the Commons ought to have forborn that Reflection, so their Lordships, in saying no more upon the Occasion of this Message of the Commons, think they have given a convincing Proof of their Moderation, and of their sincere Desire of preserving a good Correspondence between the two Houses; which is so necessary for the public Security, as well as doing right upon the Impeachment.'
The Commons answered them next Day to this effect:
Answer of the Commons.
The Commons, in hopes of avoiding all Interruptions and Delays, in proceeding against the impeached Lords, and the many Inconveniencies which might arise thereby, having proposed to your Lordships, at a Conference, that a Committee of both Houses might be nominated, to consider of the most proper Ways and Methods of proceeding on Impeachments, think, they might justly have expected your Lordships Compliance with their said Proposition, instead of your Lordships Answer to their Message of the fourth Instant, which they Yesterday received. In which Answer of your Lordships, though many Matters of great exception are contained, a suitable Reply whereunto would inevitably destroy all good Correspondence between the two Houses; yet the Commons, from an earnest desire to preserve the same, as well as to give the most convincing Proof of their Moderation, and to shew their readiness to bring the impeached Lords to speedy Justice, at present insist only on their Proposition, of both Houses to settle and adjust the necessary Preliminaries to the Trials; particularly, whether the impeached Lords shall appear at their Trials at your Lordships Bar as Criminals? Whether, being under Accusations for the same Crimes, they are to sit as Judges on each other's Trials for those Crimes, or can Vote in their own Cases, as we find by your Lordships Journal, since their being impeached, they have been, admitted to do? Which Matters, and some others, being necessary to be adjusted, the Commons cannot but insist on a Committee of both Houses to be appointed for that purpose: The departing from which, would be giving up the Rights of the Commons of England, known by unquestionable Precedents, and the Usage of Parliament, and making all Impeachments, (the greatest Bulwark of the Laws and Liberties of England) impracticable for the future.'
The Lords hereupon entered into a Debate, whether they should appoint a Committee, in pursuance of the Commons desire; and having carried it in the Negative, yet desired a present Conference with them, which was managed by the Duke of Devonshire, who acquainted them:
That the Lords have desired this Conference, upon Occasion of the last Conference; in order to preserve a good Correspondence with the House of Commons, which they shall always endeavour.
As to the late Messages between the two Houses, their Lordships are well assured, that on their Part nothing has passed, but what was agreeable to the Methods of Parliament, and proper to preserve that good Understanding between both Houses, which is necessary for the carrying on of the Public Business.
As to the Proposal of the Commons, that a Committee of both Houses should be appointed, to consider of the Ways and Methods of Proceedings on Impeachments, their Lordships cannot agree to it.
Reasons for not appointing a Committee.
1. Because they do not find that ever such a Committee was appointed, on Occasion of Impeachments for Misdemeanors; and their Lordships think themselves obliged to be extremely cautious in admitting any thing new in Matters relating to Judicature.
2. That although a Committee of this nature was agreed to upon the Impeachments of the Earl of Danby, and the five Popish Lords for High Treason, yet it was upon Occasion of several considerable Questions and Difficulties, which did then arise. And their Lordships do not find that the Success in that Instance was such, as should encourage the pursuing the same Methods again, tho' in the like Case: The Lords observing, that after much time spent at that Committee, the Disputes were so far from being there adjusted, that they occasioned an abrupt Conclusion of a Session of Parliament.
3. Their Lordships are of Opinion, that the Methods of Proceedings on Impeachments for Misdemeanors, are so well settled by the Usage of Parliaments, that they do not foresee any Difficulties likely to happen; at least none have been yet started to them: And all the Preliminaries in the Case of Stephen Gaudett, and others (which was the last Instance of Impeachments for Misdemeanours) were easily settled and agreed to, without any such Committeee.
4. The Lords cannot but observe, that this Proposal of the Commons comes so very late, that their Lordships can expect no other Fruit of such a Committee, but the preventing the Trials during this Session.
'The Lords assure the Commons, that, in case any Difficulties shall arise in the Progress of these Trials, (which their Lordships do not foresee) they will be ready to comply with the Commons in removing them, as far as Justice, and the Usage of Parliament will admit.'
The Commons on the 11th, desired a free Conference on the subject Matter of the last; and at the same time, drew up an Answer to their Lordships other Message, on Monday, about their appointing Friday the 13th, for the Trial of the Lord Somers; which was to this Effect.
'The Commons on Monday last (which was the 9th,) received a Message from your Lordships, that your Lordships had appointed the Trial of John Lord Somers, upon Friday next, on their Impeachment against him; in which they observe, your Lordships have not nominated any Place for his Trial, though your Lordships thought fit to make that Matter, on the last Impeachment for a Misdemeanour, the Subject of a long Debate.
And they cannot but take notice, that your Lordships have taken as long a time, to give your Answer, to the Commons Desire of a Committee of both Houses, delivered at a Conference on Friday last, as you are pleased to allow the Commons to have, of the Day appointed by your Lordships for the said Trial.
Your Lordships appointing so short a day, especially whilst the Proposition made to your Lordships for a Committee of both Houses was undetermined, the Commons take to be such a Hardship to them, and such an Indulgence to the Person accused, as is not to be parallel'd in any Parliamentary Proceedings.
The Commons must likewise acquaint your Lordships, that their Experience of the Interruption of a former Trial on an Impeachment for Misdemeanours, for want of settling the Preliminaries between the two Houses, obliges them to insist on a Committee of both Houses, for preventing the like Interruption.
'And they conceive it would be very preposterous for them to enter upon the Trial of any of those Lords, till your Lordships discover some Inclination to make the Proceedings thereupon practicable; and therefore, they think they have reason to insist upon another Day to be appointed, for the Trial of the Lord Somers. And the Commons doubt not but to satisfy your Lordships at a free Conference, of the necessity of having a Committee of both Houses, before they can proceed upon the said Trial.'
Royal Assent given to several Bills.
On Thursday June the 12th, His Majesty came to the House of Peers, and gave the Royal Assent to an Act for the farther Limitation of the Crown, and better securing the Rights and Liberties of the Subject: An Act for preventing the Inconveniences that may happen by Privilege of Parliament: An Act for appointing Wardens and Assay-Masters, for Assaying wrought Plate in the Cities of York, Bristol, Exeter, Chester and Norwich: An Act for Preserving the Cotton-Library: An Act for Separating James Earl of Anglesey, from Kitharine, Countess of Anglesey, his Wife, for the Cruelty of the said Earl: An Act to dissolve the Marriage of Ralph Bere with Elizabeth Eyre: An Act for a Court of Conscience at Norwich: An Act for Dissolving the Marriage of Sir John Dillon and Mary Boyle; and many other Private Bills: After which he made the following Speech:
'My Lords and Gentlemen;
I Return you my hearty Thanks for the Care you have taken to establish the Succession to the Crown in the Protestant Line: And I must not lose this Occasion of acquainting you, that I am likewise extremely sonsible of your repeated Assurances of supporting me in such Alliances, as shall be most proper for the Preservation of the Liberty of Europe, and for the Security of England and Holland. Your ready Compliance with my Desires, as to the Succours for the States-General, is also a great Satisfaction to me, as well as a great Advantage to the common. Cause. And as I have nothing so much at heart, as the Preservation of the Liberty of Europe, and the Honour and Interest of England, so I make no doubt of attaining those great Ends, by the Blessing of God, and the Continuance of your chearful Concurrence.
'My Lords and Gentlemen,
'The Season of the Year makes it necessary to have a speedy Recess; and the Posture of Affairs abroad does absolutely require my Presence, for the Encouragement of our Allies, and for the perfecting of such Alliances as may be most effectual for the Common Interest: And therefore I must recommend a Dispatch of the public Business, especially of those Matters which are of the greatest Importance.'
The Commons were willing to interpret this Speech, as an Approbation of their Proceedings in respect of their Contest with the Lords; and therefore agreed upon this Address to his Majesty:
Address of the Commons.
Most gracious Sovereign, We your Majesty's most dutiful and loyal Subjects, the Commons in Parliament assembled, do, with all imaginable Chearfulness, return your Majesty our most humble Thanks for your most gracious Speech from the Throne, in which your Majesty is pleased to express your royal Approbation of the Proceedings of your Commons. And we do further unanimously assure your Majesty, that we will be ready on all Occasions to assist your Majesty, in supporting such Alliances as your Majesty shall think fit to make, in conjunction with the Emperor and the States-General, for the Preservation of the Liberties of Europe, the Prosperity and Peace of England, and for reducing the exorbitant Power of France.'
When this Address was presented on Friday June the 13th, the King gave this Answer to mollify and to oblige in the wisest Manner.
'Gentlemen, I thank you heartily for the unanimous Assurances you have given me of your Readiness to assist me, in supporting such Alliances as I shall make in conjunction with the Emperor and the States-General. It will be a good Encouragement to them, to find the Sense of this Kingdom so fully expressed on this Occasion, and will likewise contribute most effectually, to the obtaining those great Ends you have now mentioned, on which the Happiness of Europe does so much depend.'
But to return again to the Contests between the two Houses: The Lords on the same day the King made this Speech, had sent this Message to the Commons by Dr. Newton and Mr. Gery.
Farther Contests between the two Houses.
In answer to the Message from the House of Commons of the tenth Instant, the Lords say, that although they take it to be unparliamentary in many Particulars, yet to shew their real Desire of avoiding Disputes, and removing all Pretence of delaying the Trials of the impeached Lords, they will only take notice of that Part of their Message, wherein the Commons propose some things as Difficulties in respect of the Trials; which Matters relating wholly to their Judicature, and to their Rights and Privileges, as Peers, they think fit to acquaint the Commons with the following Resolutions of the House of Lords.
1. That no Lord of Parliament, impeached for high Crimes and Misdemeanours, and coming to his Trial, shall, upon this Trial, be without the Bar.
2. That no Lord of Parliament, impeached for high Crimes and Misdemeanours, can be precluded from Voting on any Occasion, except in his own Trial.
Their Lordships further take notice of a Mistake in Point of Fact, alledged in the Message of the Commons; it no way appearing upon their Journal, that the Lords impeached have voted in their own Case.
'The Lords being well assured, that all the Steps that have been taken by them in relation to these Impeachments, are warranted by the Practice of their Ancestors, and the Usage of Parliament, have reason to expect the Trials should proceed without Delay.'
Also that they are commanded by the Lords to acquaint this House, that,
In answer to the Message of the House of Commons yesterday, the Lords say, that they cannot give a greater Evidence of their sincere and hearty Desires, of avoiding all Differences with the House of Commons, and of Proceeding on the Trials of the Impeachments, than by not taking notice of the several just Exceptions, to which that Message is liable, both as to the Matter and the Expressions.
The Lords have nothing farther from their thoughts, than the going about to do any thing, which might have the least Appearance of Hardship with relation to the Commons.
But the Answer of the Lord Somers to the Articles exhibited against him, having been sent down to the Commons on the 24th of May last, and they having, by their Message of the 21st of May, signified to their Lordships, their Intention of beginning with the Trial of his Impeachment in the first place:
The Lords, considering how far the Session is advanced, thought it reasonable to appoint the 13th Instant for the said Trial, their Lordships finding several Precedents of appointing Trials on Impeachments within a shorter time.
The Lords also think it incumbent upon them to dispatch the Trials of all the impeached Lords, before the rising of the Parliament. This is what Justice requires, and cannot be looked upon as a Matter of Indulgence: Nevertheless, that the Commons may see how desirous their Lordships are to comply with them in any thing which may be consistent with Justice, they have appointed the Trial of the Impeachment against John Lord Somers, on Tuesday the 17th of this Instant June, at ten of the Clock in the Forenoon, in the House of Lords, which will be then sitting in Westminster-Hall.
'That they were commanded by the Lords to acquaint this House, that the Lords do agree to a free Conference with the Commons, as desired; and do appoint to-morrow at one o'Clock in the Painted-Chamber.'
Answer of the Commons.
The Commons, on the 13th, made this Answer to them.
The House of Commons find greater Reason to insist upon their Proposal of a Committee of both Houses, from the two Messages received yesterday from your Lordships; for their Ambiguity and Uncertainty do show the Methods of former Parliaments to be the most proper Way for Dispatch of Business.
'The Commons have been obliged to employ that time in considering how to answer your Lordships Messages, which otherwise would have been spent in preparing for the Lord Somers's Trial; so that the Delay must be charged, where the Occasion ariseth. And the Commons, having desired a Committee of both Houses, to adjust the Preliminaries of the Trials, cannot but think it strange your Lordships should come into Resolutions upon two of those Points, while the Proposal of the House of Commons is under Debate, at Conferences between the two Houses; the Commons having other Difficulties to propose, which concern them as Prosecutors, and all future Impeachments.
And though the Commons have the Subject of your Lordships Resolutions, with other things, to be debated at a Committee of both Houses; yet they cannot but observe, that your Lordships second Resolution is no direct Answer to the Commons Proposal; which was, whether Peers impeached of the same Crimes shall vote for each other upon their Trial for the same Crimes. And the Commons cannot believe, that any such Rule can be laid down in plain Words, where there is a due Regard to Justice.
'And as to what your Lordships observe, that there is a Mistake in Point of Fact alledged by the Commons; the House may take notice of the Caution used by your Lordships, in wording that Part of your Message; for they know your Lordships are too well acquainted with the Truth of the Fact to affirm that the impeached Lords did not vote in their own Cases; and though the appearing or not appearing upon your Lordship's Journal does not make it more or less agreeable to the Rules of Justice, yet the Commons cannot but add this further Observation from your Lordships Journal, that the impeached Lords Presence is not only recorded when those Votes passed, but they also find some of them appointed of Committees, for preparing and drawing up the Messages and Answers to the House of Commons; which they do not think has been the best Expedient for preserving a good Correspondence between the two Houses, or adjusting what will be necessary upon these Trials: And therefore the Commons cannot think it agreeable to the Rules of Parliament for them to appear at the Trial, till all necessary Preliminaries are first settled with your Lordships.'
Report of the Conference.
Then the Commons went to the Conference with the Lords, and Mr. Harcourt reported the Matter thereof, and the Words which the Lord Haversham had spoke thereat; which he read in his Place, and afterwards delivered in the said Report at the Clerks Table, where the same was read, and is as followeth, viz.
That the Managers appointed by this House met the Lords at the free Conference, the Subject Matter whereof was opened by Mr. Harcourt, and immediately afterwards further argued by Sir Bartholomew Shower.
It was insisted on by each of them, that the Reasons offered by their Lordships at the last Conference were not sufficient for their Lordships disagreeing to a Committee of both Houses, desired by the Commons at the first Conference.
That, notwithstanding those Reasons, the Commons still thought a Committee of both Houses absolutely necessary, for adjusting and preventing such Differences as had happened, or might arise previous to, or upon the Trials; and therefore insisted, that such a Committee should be appointed before the Commons could proceed on any Trial.
'Twas urged as one Reason for such a Committee, that many Difficulties might happen, whereby the Trials might be obstructed, if the Preliminaries should not be first adjusted: As one Instance, that Point of several Lords being under Impeachments of the same Crimes, voting on each other's Trial, was mentioned.
'The (fn. 2) Lord Steward first replied, and nothing was offered by his Grace, but what was material and pertinent to the Matter in question, and agreeable to the Method of Parliament in free Conferences, That John Lord Haversham spoke immediately after; and in his Lordship's Discourse, used these or the like Expressions.'
Speech of the Lord Haversham.
One thing there is, though I cannot speak it, because I am bound up by the Orders of the House, yet I must have some Answer; this is, as to the Lords voting in their own Case; it requires an Answer, though I cannot go into the Debate of it. The Commons themselves have made this Precedent; for, in these Impeachments, they have allowed Men guilty of the same Crimes to vote in their own House; and therefore we have not made any Distinction in our House, that some should vote and some not. The Lords have so high an Opinion of the Justice of the House of Commons, that they hope Justice shall never be made use of as a Mask for any Design. And therefore give me leave to say (though I am not to argue it) 'tis a plain Demonstration that the Commons think these Lords innocent; and I think the Proposition is undeniable; for there are several Lords in the same Crimes, in the same Facts, there is no Distinction. And the Commons leave some of these Men at the Head of Affairs, near the King's Person, to do any Mischief if they were inclined to it; and impeach others, when they are both alike guilty, and concerned in the same Facts. This is a Thing I was in hopes I should never have heard asserted, when the Beginning of it was from the House of Commons.
'These Expressions were instantly objected to by Sir Christopher Musgrave; and the Managers took them to be so great an Aspersion on the Honour of this House, that they thought themselves obliged in Duty immediately to withdraw from the Free Conference.'
'As the Managers were withdrawing, his Grace my Lord Steward spoke to the Effect following; That he hoped they would not think that that Lord had any Authority from the House of Lords to use any such Expression towards the Commons.'
Resolved, That John Lord Haversham hath, at the free Conference this Day, uttered most scandalous Reproaches, and false Expressions, highly reflecting upon the Honour and Justice of the House of Commons, and tending to the making a Breach in the good Correspondence between the Lords and Commons, and to the interrupting the public Justice of the Nation, by delaying the Proceedings on Impeachments.
Resolved, That John Lord Haversham be charged before the Lords, for the Words spoken by the said Lord this Day at the free Conference: And that the Lords be desired to proceed in Justice against the said Lord Haversham, and to inflict such Punishment upon the said Lord, as so high an Offence against the House of Commons does deserve.
Ordered, That Sir Christopher Musgrave do carry the said Charge and Resolutions to the Lords.
A Message from the Lords.
A Message from the Lords by Doctor Newton and Mr. Gery:
'Mr. Speaker, The Lords having been informed by their Managers, that some Interruption happened at the free Conference, which their Lordships are concerned at; because they wish that nothing should interrupt the public Business, do desire the Commons would come again presently to the said free Conference; which they do not doubt will prove the best Expedient to prevent the Inconvenience of a Misunderstanding upon what has past.'
Next Day, which was Saturday the 14th, came another Message from the Lords, importing,
'That upon Occasion of their last Message yesterday, in order to continue a good Correspondence between the two Houses, their Lordships did immediately appoint a Committee to state the Matter of the Free-Conference, and also to inspect Precedents of what has happened of the like Nature; and that the public Business may receive no Interruption, the Time desired by their Lordships for renewing the Free Conference being elapsed, their Lordships desire a present Free Conference in the Painted-Chamber, upon the SubjectMatter of the last Free-Conference.'
Upon which the Commons came to the following Resolution:
'That an Answer be returned to the Lords, that the Commons are extremely desirous to preserve a good Correspondence between the two Houses, and expedite the Trials of the impeached Lords; but do conceive tis not consistent with the Honour of the Commons to renew the free Conference, until they have received Reparation, by their Lordship's doing justice upon John Lord Haversham, for the Indignity he yesterday offered to the House of Commons.'
Articles against the Lord Hallifax and his Replies.
On the same Day, Saturday the 14th of June, Mr. Bruges reported, that he had carried the Articles of Impeachment against Charles Lord Hallifax to the Lords; which were,
1st, That, whereas it was the continued Sense of the Commons of England, that it was highly reasonable that the forfeited Estates of Rebels and Traitors in Ireland should be applied in Ease of his Majesty's faithful Subjects of the Kingdom of England, the said Lord Hallifax presumed to advise, pass, or direct the passing a Grant to Thomas Railton Esq; in trust for himself, of several Debts, Interests, &c. amounting. to 13000 l. or thereabouts, accruing to his Majesty from Attainders, Outlawries, or other Forfeitures in Ireland.'— To which he answered, 'That he did accept the said Grant, as it was lawful for him to do, without Breach of his Duty, and the Trust reposed in him; which Grant hath since been taken away by Act of Parliament, and he hath not made clear thereof, as yet, above 400 l.'
'2dly, That he has not repaid into the Receipt of his Majesty's Exchequer in Ireland the Sum of 1000 l. which he had actually received to his own Use, out of the Prosits of the forementioned Grant, which he ought to have so repaid, by virtue of the Act of granting an Aid to his Majesty by Sale of the Forfeited Estates in Ireland.'— To which he answered, 'That he gave direction, after the said Act passed, to his Agents in Ireland, to do, in relation to the Money received, as should be advised by Council there; by whom his Agents were advised, that the said Monies being received out of the mean Profits, which were remitted by that Act, were not within the first mentioned Clause in the said Act.
3dly, That in the time of a tedious and expensive War, he did advise, procure and assent, not only to the passing divers Grants to others, but did obtain and accept of several beneficial ones for himself; which Practices were a most notorious Abuse of his Majesty's Goodness, &c.'—To which he answered, 'That he served his Majesty faithfully in his Stations, and his Majesty graciously accepted of his Service; and as a Mark of his royal Favour, did make, for his Benefit, such Grants as are mentioned in the precedent and subsequent Articles, and none other. And as to other Persons, he only, in conjunction with the other Commissioners, did sign several Warrants and Dockets for such Grants, as his Majesty was pleased to direct.'
4thly, Whereas by common Law, and other Statutes, the King's Forests should be preserved, the said Lord Hallifax, not regarding the Laws and Ordinances of this Realm, nor his Duty to his Majesty and the Public, has procured a Grant to Henry Segar, Gent. in trust for himself, of the Sum of 14,000 l. of Scrubbed-Beech, Birch, Holly &c. under Colour whereof, Sapling-Oaks, and many Tuns of well-grown Timber had been cut and fallen, and disposed of for his Benefit.'—To which he answered, 'That his Majesty, out of his Grace and Favour, did grant in trust for him the Sum of 2000 l.Ann. to be raised by the Fall of Scrubbed-Beech, Birch, &c. for the Space of seven Years, which Grant was not prejudicial to any Timber growing in the said Forest. And if any Abuse were in cutting the Wood, he conceives he is not answerable for the same, it being done by the Direction of his Majesty's Surveyor-General, and other his Majesty's Officers.'
'5thly, That he, the said Lord Hallifax did grant, or procured to be granted, to his Brother Christopher Montague Esq; the Place and Office of Auditor of the Receipts, and Writer of the Tallies, in trust for himself; so that he, the said Lord was, in Effect, at the same time, one of the Commissioners of the Treasury, Chancellor of the Exchequer and Auditor of the Receipts and Writer of the Tallies; and enjoyed the Profits of the said several Offices, which were manifestly inconsistent, and ought to have been a Check to each other. To which he answered, 'That the Grant of the said Office was done at his Desire and Request, because he intended, in a short time after, to leave his own Employment and Places in the Treasury, and to obtain a Surrender from his said Brother of the said Office, and procure a Grant thereof to himself, which has been since done, and he conceives was lawful for him to do.'
6thly, That the said Lord Hallifax, well knowing the most apparent evil Consequences, as well as the Injustice of the Partition of the Spanish Monarchy, did yet advise his Majesty to enter into a Treaty for it, and did encourage and promote the same.' To which he answered, 'That he never did advise his Majesty to enter into or make the said Treaty, or was ever consulted upon any Clause or Article thereof: But when the said Matter was discoursed at TunbridgeWells, he made several Objections to the same.'
Rules for Trial of the impeached Lords.
On Monday, June the 16th, the Lords sent a Message to acquaint the House of Commons, 'That the Lords, taking into their Care the ordering of the Trial of John Lord Somers, on Tuesday the 17th of June Instant, at ten of the Clock in Westminster-Hall, have prepared some Notes and Rules to be observed at the said Trial, which the Lords have thought fit to communicate to this House, viz.
That the whole Impeachment is to be read, and then the Answer; which being done, the Lord-Keeper is to tell the Commons, that now they may go on with their Evidence.
Then the Lord-Keeper is to declare, That now the Court is proceeding to hear the Evidence, and desire the Peers to give attention.
If any of the Peers, or the Members of the House of Commons, that manage the Evidence, or the Lords impeached, do desire to have any Question asked, they must desire the Lord-Keeper to ask the same.
If any Doubt doth arise at the Trial, no Debate is to be in the Court, but the Question suspended to be debated in this House.
The Members of the House of Commons to be there before the Peers come.
None to be covered at the Trial but the Peers.
That such Peers at the Trial of the impeached Lords, who at the Instance of the said Lord, or of the Commons, shall be admitted Winesses, are to be sworn at the Clerk's Table, and the Lord-Keeper to administer the Oath, and are to deliver their Evidence in their own Places.
Those Witnesses that are Commoners are to be sworn at the Bar by the Clerk, and are to deliver Evidence there.
'The impeached Lords may cross-examine Witnesses, viva voce.'
Reasons of the Commons against proceeding to the Trial of the Lord Somers.
But the Commons appointed a Committee to consider of the Reasons why they cannot proceed to the Trial of the Lord Somers. Which Reasons were the next day reported by Mr Harcourt, and were as follow:
The Commons, in this whole Proceeding against the impeached Lords, have acted with all imaginable Zeal to bring them to a speedy Trial; and they doubt not but it will appear, by comparing their Proceedings with all others upon the like Occasion, that the House of Commons have nothing to blam themselves for, but that they have not expressed the Resentment their Ancestors have justly shewed, upon much less Attempts which have been made upon their Power of Impeachments.
The Commons, on the 31st of May, acquainted your Lordships, that they thought it proper, from the Nature of the Evidence, to proceed in the first place upon the Trial of the Lord Somers. Upon the first intimation from your Lordships, some days afterwards, that you would proceed to the Trial of the impeached Lords, whom the Commons should be first ready to begin with, notwithstanding your Lordships had before thought fit to appoint which Impeachment should be first tried, and affix a Day for such Trial, without consulting the Commons who are the Prosecutors:
The Commons determine to expedite the Trials to the utmost of their power, in hopes of attaining that end: And for the more speedy and easy adjusting and preventing any differences, which had happened, or might arise previous to, or upon these Trials, proposed to your Lordships at a Conference, as the most parliamentary and effectual Method for that purpose, and that which in no manner intrenched upon your Lordships Judicature, that a Committee of both Houses should be nominated, to consider of the most proper Ways and Methods of proceeding upon Impeachments, according to the Usage of Parliament.
In the next Message to the Commons, upon Monday the 9th of June, your Lordships thought fit, without taking the least notice of this Proposition, to appoint the Friday then following for the Trial of the said Lord Somers; whereunto, as well as to many other Messages and Proceedings of your Lordships upon this Occasion, the House of Commons might have justly taken very great exceptions; yet, as an Evidence of their moderation, and to shew their readiness to bring the impeached Lords to speedy Justice, the Commons insisted only on their Proposition for a Committee of both Houses, to settle and adjust the necessary Preliminaries to the Trial; particularly, whether the impeached Lords should appear on their Trial at your Lordships Bar as Criminals? whether, being under Accusations of the same Crimes, they should sit as Judges on each other's Trial for those Crimes, or should vote in their own Cases, as 'tis notorious they have been permitted by your Lordships to do, in many Instances which might be given; to which particulars, your Lordships have not yet given a direct Answer, though put in mind thereof by the Commons.
'Your Lordships at a Conference, having offered some Reasons why you could not agree to a Committee of both Houses, to adjust the necessary Preliminaries, the Commons thereupon desired a free Conference, and your Lordships agreed thereunto; at which, 'tis well known to many of your Lordships, who were then present, what most scandalous Reproaches, and false Expressions, highly reflecting upon the Honour and Justice of the House of Commons, were uttered by John Lord Haversham, whereby the Commons were under a necessity of withdrawing from the said free Conference; for which Offence, the Commons have, with all due Regard to your Lordships, prayed your Lordships Justice against the Lord Haversham; but have as yet received no manner of Satisfaction.
The Commons restrain themselves from enumerating your Lordships very many irregular and unparliamentary Proceedings upon this Occasion; but think it is what they owe to public Justice, and all the Commons of England whom they represent, to declare some few of those Reasons, why they peremptorily refuse to proceed to the Trial of the Lord Somers on the 17th of June.
1st, Because your Lordships have not yet agreed that a Committee of both Houses should be appointed, for settling the necessary Preliminaries; a Method never until this time denied by the House of Lords, whensoever the Commons have thought it necessary to desire the same.
2dly, Should the Commons (which they never will do) be contented to give up those Rights, which have been transmitted to them from their Ancestors, and are of absolute necessity to their Proceedings on Impeachments; yet, whilst they have any Regard to public Justice, they never can appear as Prosecutors before your Lordships, till your Lordships have first given them Satisfaction, that the Lords impeached of the said Crimes, shall not sit as Judges on each other's Trial for those Crimes.
3dly, Because the Commons have as yet received no Reparation, for the great Indignity offered to them at the free Conference by the Lord Haversham: The Commons are far from any Inclination, and cannot be supposed to be under any necessity of delaying the Trial of the Lord Somers: There is not any Article exhibited by them, in maintenance of their Impeachment against the Lord Somers, for the Proof whereof they have not full and undeniable Evidence; which they will be ready to produce, as soon as your Lordships shall have done Justice upon the Lord Haversham; and the necessary Preliminaries in order to the said Trial, shall be settled by a Committee of both Houses.
'The Commons think it unnecessary to observe to your Lordships, that most of the Articles whereof the Lord Somers stands impeached, will appear to your Lordships to be undoubtedly true, from Matters of Record, as well as by the Confession of the said Lord Somers, in his Answer to the said Articles; to which the Commons doubt not but your Lordships will have a due regard, when his Trial shall regularly proceed.
The Lords sent their Answer to this Message, on Friday, June the 20th in these Words:
Answer of the Lords.
The Lords, in answer to the Message of the Commons of the 17th instant, say, the only true way of determining, which of the two Houses has acted with the greatest Sincerity, in order to bring the impeached Lords to their Trials, is to look back upon their respective Proceedings.
The Lords do not well understand what the Commons mean by that Resentment which they speak of in their Message: Their Lordships own the House of Commons have a Right of Impeaching: And the Lords have undoubted Power of doing Justice upon those Impeachments, by bringing them to Trial, and condemning or acquitting the Parties in a reasonable time. This Power is derived to them from their Ancestors, which they will not suffer to be wrested from them by any Pretences whatsoever.
Their Lordships cannot but wonder, that the Commons should not have proposed a Committee of both Houses much sooner, if they thought it so necessary for the bringing on the Trials; no mention being of such a Committee, from the first of April to the sixth of June, although, during that interval, their Delays were frequently complained of by the House of Lords.
The manner in which the Commons demand this Committee, the Lords look upon as a direct invading of their Judicature; and therefore, as there rever was a Committee of both Houses yielded to by the Lords, in case of any Impeachment for high Crimes and Misdemeanours; so their Lordships do insist, that they will make no new Precedent upon this Occasion. Many Impeachments for Misdemeanours have in all times been determined without such a Committee: And if now the Commons think fit, by any unprecedented Demand, to form an excuse for not prosecuting their Impeachments, it is demonstrable where the Obstruction lies.
As to the Preliminaries which the Commons mention in particular, as proper to be settled at such a Committee, they have received the Resolutions of the House of Lords therein, by their Message of the 12th instant, from which (being matters entirely relating to their Judicature) their Lordships cannot depart.
As to the last Pretence the Commons would make to shelter the delaying the Trials, from some Expressions which fell from the Lord Haversham at the free Conference, at which Offence was taken, their Lordships will only observe,
First, That they have omined nothing which might give the Commons all reasonable Satisfaction of their purpose to do them Justice in that matter, so far as is consistent with doing Justice to that Lord; and also to preserve all good Correspondence with them; as appears by the several steps they have taken.
'Secondly, That this Business has no relation to the Trial of the impeached Lords; and therefore their Lordships cannot imagine, why the Commons should make Satisfaction and Reparation against the Lord Haversham, a necessary Condition for the going on with the Trials, and at the same time, find no Difficulties in proceeding on other Business.'
His Lordship honourably acquitted.
In the mean time, on Tuesday June the 17th, the Lords proceeded to the Trial of John Lord Somers, in Westminster-Hall; where this Proclamation first was made: 'Whereas a Charge of high Crimes and Misdemeanours has been exhibited by the House of Commons, in the Name of themselves and all the Commons of England, against John Lord Somers; all Persons concerned are to take notice that he now stands upon his Trial, and they may now come forth, in order to make good the said Charge.' Then the House adjourned to the said Hall; and being seated, after Proclamation for silence, the Articles against John Lord Somers were read, and also his Lordship's Answer to them. Then the Lord Keeper declared the House was ready to hear the Evidence against him. The Lord Somers moved to have his Council heard. After long Debate, and hearing the Judges to several Questions asked them by the Lords, this Question was proposed; That John Lord Somers be acquitted of the Articles of Impeachment against him, exhibited by the House of Commons, and all things therein contained, and that the said Impeachment be dismissed. When the Lord-Keeper had asked every Lord, whether content or not? he declared the Majority was for acquitting. Then the Lords adjourned to the House above, and made the following Order:
'It was considered, ordered, and adjudged by the Lords Spiritual and Temporal in Parliament assembled, that John Lord Somers shall be, and is hereby acquitted of the Articles of Impeachment against him, exhibited by the House of Commons, and all things therein contained, and that the said Impeachment shall be, and is hereby dismissed.'
Remonstrance of the Commons.
The Commons, to justify their refusal of appearing at the said Trial, did resolve, on June the 20th, 'That the Lords have refused Justice to the Commons upon the Impeachment against the Lord Somers, by denying them a Committee of both Houses, which was desired by the Commons as the proper and only Method of settling the necessary Preliminaries, in order to the proceeding to the Trial of the said Lord Somers with effect; and afterwards by proceeding to a pretended Trial of the said Lord, which could tend only to protect him from Justice, by colour of an illegal Acquittal. Against which Proceedings of the Lords, the Commons do solemnly protest, as being repugnant to the Rules of Justice, and therefore null and void That the House of Lords, by the pretended Trial of John Lord Somers, have endeavoured to overturn the Right of Impeachments, lodged in the House of Commons by the ancient Constitution of this Kingdom, for the Safety and Protection of the Commons against the Power of great Men; and have made an Invasion upon the Liberties of the Subject, by laying a Foundation of Impunity for the greatest Offenders. That all the ill Conseuences, which may at this time attend the Delay of the Supplies given by the Commons, for preserving the public Peace, and maintaining the Balance of Europe, by supporting our Allies against the Power of France, are to be imputed to those, who, to procure an Indemnity for their own enormous Crimes, have used their utmost endeavours to make a Breach between the two Houses.'
The Lords the same day sent this Answer to that Message:
Answer of the Lords.
The Lords do acquaint the Commons, that they might have known by the Records of the House of Lords, that the Lords had proceeded to the Trial of the Lord Somers on Tuesday last, being the Day appointed; and the Commons not appearing to maintain their Articles against the said Lord, the Lords had by judgment of their House acquitted him of the Articles of Impeachment against him, exhibited by the House of Commons, and all things therein contained, and had dismissed the said Impeachment.
And the Lords had appointed Monday next for the Trial of the Earl of Orford, on which Day they would proceed on the said Trial.
The Commons still pressing for a Committee of both Houses, which their Lordships could never consent to for the Reasons already given, their Lordships could infer nothing from their persisting in this Demand, but that they never designed to bring any of their Impeachments to a Trial.
'As to the Lord Haversham, his Answer was now before the House of Commons, and the Lords resolved to do justice in that matter.'
The same day, the Commons had a Copy given them of the Lord Haversham's Answer to the Charge against him; which being extraordinary, deserves to be inserted in this place.
Answer of the Lord Haversham to a Complaint of the Commons.
The said Lord Haversham, saving to himself all Advantages of Exception to the said Charge, and of not being prejudiced by any want of Form in this Answer; and also saving to himself all Rights and Privileges belonging to him as one of the Peers of this Realm; for Answer to the said Charge, saith, That on the sixth Day of June 1701, the Commons by a Message sent to the Lords, desired a Conference upon their Message to the Commons of the fourth of June: In which Conference they proposed to the Lords, That a Committee of both Houses might be nominated, to consider of the most proper Ways and Methods of Proceeding in the Impeachments of the Lords according to the Usage of Parliaments. That on the 10th of June, The Lords desired another. Conference with the Commons, in which they delivered them their Reasons why they could not agree to the appointing of such a Committee; (viz) First, That they could not find, that ever such a Committee was appointed on Occasion of Impeachments for Misdemeanours, and their Obligation to be curious in admitting any thing new relating to Judicature. Secondly, That although a Committee of this nature was agreed to, upon the Impeachments of the Earl of Danby, and the five Popish Lords for HighTreason; yet the Success in that Instance, was not such as should encourage the pursuing of the same Method, though in the like Case; and that, after so much time spent in the Committee, the Disputes were so far from being there adjusted, that they occasioned the abrupt Conclusion of a Session of Parliament. Thirdly, That the Methods of Proceedings for Misdemeanours are so well settled by the Usage of Parliament, that no Difficulties were likely to happen, nor none had been stated to them; and that all the Preliminaries in the Case of Stephen Gaudett, and others, (which was the last Instance of Impeachments for Misdemeanours) were easily settled and agreed to, without any such Committee. Fourthly, That the Proposal of the Commons came so very late, that no other Fruit could be expected of such a Committee, but the preventing of the Trials during the Session. Whereupon the Commons, on the 12th of June, desired of the Lords a Free Conference, on the Subject Matter of the last Conference. That the Lords, on the 12th of June, came to two Resolutions in relation to the Lords impeached: 'First, That no Lord of Parliament, impeached for high Crimes and Misdemeanours, and coming to his Trial, shall upon his Trial, be without the Bar. Secondly, That no Lord of Parliament, impeached for high Crimes and Misdeameanours, can be precluded from Voting on any Occasion, except in his own Trial.' And by Messengers of their own, the Lords acquainted the Commons with the said two Resolutions; and also that they agreed to a Free Conference with the Commons, and appointed the next day. That upon the 30th of June, Mr. Harcourt, one of the Managers, began the Free Conference on the part of the Commons, and argued upon the four Reasons given by the Lords, why they could not agree to the appointing a Committee of both Houses; and principally relied upon the Instance in the Case of the Popish. Lords, and insisted upon the Delay that the not agreeing to the Nomination of such a Committee would necessarily occasion, whereby the Lords Trials, and the Justice due to the Nation, would be retarded. And departing from the SubjectMatter of the said Conference (which was, whether it were requisite to appoint, or not appoint such a Committee) the said Manager discoursed upon the latter of the Resolutions of the Lords, communicated to the Commons, and said, 'That he wished the Lords had sent down their Reasons, as well as their Resolutions; which words seemed to the said Lord Haversham, to carry therein an Implication, as if the said Resolution could have no Reason to justify it. That Sir Bartholomew Shower, another Manager for the Commons, observed the same Method of Discourse; and having argued on the Lords Reasons, departed from the Subject-Matter of the Free Conference, and inveighing against the Manner of the Lords Judicature, asserred by their Resolutions, said, That it was abhorrent to Justice: which Expressions being foreign (as the said Lord Haversham apprehended) to the Subject-Matter of the said Free Conference, which was, whether such Committee of both Houses should be appointed or not; the said Lord, being appointed by the Lords for one of the Managers of the said Free-Conference on their Behalf, in Vindication of the Honour and Justice of the House of Peers, and their Judicature and Resolutions, in answer to what had been said by the Managers for the Commons, he spoke to the Effect following:
Gentlemen, I shall begin what I have to say, as that worthy Member who opened this Conference, that there is nothing the Lords more desire than to keep a good Correspondence, which is so necessary to the Safety of the Nation, and the Dispatch of public Business; and nothing they have more carefully avoided, than what might create a Misunderstanding between the two Houses. A greater Instance of which could not be given, than the Messages my Lords returned to some the Commons had sent them up; in which they took care to express themselves so cautiously, that no Heat might arise from any Expression of theirs. And as to what the worthy Members mentioned, in relation to delay; the repeated Remembrances sent the Commons, with relation to the sending up the Articles against the impeached Lords, are a sufficient Instance how desirous they are that these Matters should proceed. And the Lords have this Satisfaction, that it is not on their part that the Trials are not in a greater Forwardness; they cannot but look on it as a great Hardship, that they should lie under long Delays on Impeachments. Persons may be incapable; Facts may be forgotten; Evidences may be laid out of the way; Witnesses may die; and many other like Accidents may happen. The Instance the worthy Members give of the Popish Lords, as it is a Crime of another Nature, and not fully to the point, so it seems to make against what it was brought for: For the worthy Members say, there was but one of the Lords brought to justice, though four more (as I take it) were accused. And can any Man believe, that the Commons have a mind to bring only one of these Lords to Trial? It is inconsistent with the Opinion that every body must have of their Justice. And as to the point of Judicature, it were very hard upon the Lords, that no Person should be brought to Trial, till the Judicature of the House be so first. The Judicature of the Lords is their Peculiar, and hath in former Ages been sacred with the Commons themselves. And this House, perhaps, hath as much reason to be jealous, and careful of it, as any other House ever had; especially when one single Precedent is so urged and insisted upon. One thing there is which a worthy Member mentioned, tho' I cannot speak to it at large, because I think myself bound up by the Resolutions of the House; yet it must have some Answer; that is, as to the Lords Voting in their own Case; it requires an Answer, though I cannot enter into the Debate of it. The Commons themselves have made this Precedent; for in these Impeachments they have allowed Men, equally concerned in the same Facts, to vote in their own House; and we have not made the Distinction in ours, that some should vote and some not. The Lords have so high an Opinion of the House of Commons, that they believe Justice shall never be made use of as a Mask for any Design.' And therefore give me leave to say, though I am not to argue it, 'tis to me a plain Demonstration, that the Commons think those Lords innocent; and I think the Proposition is undeniable: For when there are several Lords in the same Circumstances, in the same Facts, there is no Distinction; and the Commons leave some of these Men at the Head of Affairs, near the King's Person, to do any Mischief if they were inclined to it; it looks as if they thought them all innocent. This was a thing I was in hopes I should never have heard asserted, when the Beginning of it was from the House of Commons.
The said Lord being here interrupted, he desired to be heard out, and that his Words might be taken down in writing. But the Managers for the Commons broke up, and departed, refusing to hear any Explanation. Now the said Lord, as to any implicit Charge of a Design to reflect on, or dishonour the House of Commons, desires any such Design or Intention; having, for many Years, had the Honour to sit in the House of Commons, and having ever had an honourable and respectful Sense thereof: But the said Lord was led to express himself in the Manner aforesaid, for the Reasons aforesaid, and takes himself to be justify'd therein, by the Facts and Reasons following:
'That the nature of that Conference was, that it should be free; the Occasion of it, because either House apprehended the other to be in an Error; and the End of it, that each side might urge such Facts as are true, and such Reasons as are forcible to convince. That one Article of the Impeachment against John Lord Somers, was, That the Treaty of Partition 1699, was ratify'd under the GreatSeal, which then was in the Custody of the same Lord, then Lord-Chancellor of England; That the Commons on the first of April 1701, Resolved, That the Earl of Portland by negotiating and concluding the Treaty of Partition, was guilty of a high Crime and Misdemeanour; and pursuant thereto, lodged an Impeachment against him in the House of Peers; which Vote and Impeachment could not have Reference to any Treaty, other than the Treaty of Partition of 1699, the Treaty of 1698, not being before the House of Commons, till after the time of that Vote and Impeachment: and yet the Earl of Jersey, who then was Secretary of State and a Privy-Counsellor, and actually signed the said Treaty of 1699, as a Plenipotentiary with the Lord Portland, stands unimpeached, and continues at the Head of Affairs, being Lord-Chamberlain, near his Majesty's Person, and his Presence and Councils, (without complaint:) That the Earl of Orford, and the Lords Somers and Hallifax, are severally impeached for advising the Treaty of Partition of 1698, and yet Mr. Secretary Vernon, who then was Secretary of State, and a Privy-Counsellor, and acted in the promoting of the Treaty of Partition of 1698, stands unimpeached, and still continues one of the principal Secretaries of State; and Sir Joseph Williamson, who then was a Privy-Counsellor, and transacted and signed the Treaty of Partition of 1698, as a Plenipotentiary, stands unimpeached. That the Lord Hallifax is impeached, for that he, being a Commissioner of the Treasury, assented to the passing of divers Grants from the Crown to several Persons, of Lands in Ireland; and yet Sir Edward Seymour, Sir Stephen Fox, and Mr. Pelham, who being severally Lords Commissioners of the Treasury, did severally assent to the passing of divers like Grants from his Majesty, of Lands in Ireland, stand unimpeached. That in the Impeachments against the Earl of Orford and Lord Somers, one of the Articles against them is for procuring a Commission to Captain Kidd, and likewise a Grant under the Great-Seal, of the Ships and Goods of certain Persons therein named, to certain Persons in trust for them; and yet other Lords, equally concerned in procuring the said Commission and Grant, stand unimpeached. That the said Mr. Secretary Vernon, Sir Edward Seymour, Sir Stephen Fox, and Mr. Pelham, notwithstanding their being Parties in the same Facts, charged in the said respective Impeachments, have been permitted to sit and vote in the House of Commons, touching the Impeachments and the Matters thereof: That these Facts being true and publicly known, the Consequences resulting therefrom (as the said Lord Haversham apprehended) are undeniable, viz. That the doing of the same thing, by two Persons in equal Circumstances, cannot be a Crime in one, and not in another. That the Commons had no reason to insist, that the Lords should not permit that in their Members, which the Commons had first permitted, and continued to permit, and so begun the first Precedent, in their own Members. That it must be thought, that the impeached Lords (notwithstanding the Facts alledged in the Impeachment) are innocent of Danger to the King, when the Lord Jersey and Mr Secretary Vernon, who were respectively concerned in the Partition-Treaties, are permitted without Complaint, to be at the Head of Affairs, and in the King's Presence, and of his Councils, as not dangerous: That the Word innocent, used in the Words spoken by the said Lord Haversham, can extend no further than to such Matters as were done by the impeached Lords, of the same nature with what was done by those unimpeached. All which Facts being true, and the Consequences obvious, the said Lord being ready to prove the same, he insists that the Words spoken by him at the said Free Conference, were not scandalous or reproachful, nor false, nor reflecting on the Honour or Justice of the House of Commons; but were spoken upon a just Occasion, given in Answer to several Expressions that fell from the Managers for the Commons, remote, as he conceives, from the Matter in question, and reflecting on the Honour and Justice of the House of Peers; and in Maintenance and Defence of the Lords Resolution and Judicature, and conformable to the Duty he owes to the said House. And the said Lord humbly demands the Judgment of this honourable House therein. And the said Lord Haversham denies that he spoke the Words specified in the said Charge, in such Manner and Form, as the same are therein set down. And having thus given a true Account of this Matter, and it being true and indisputable, that some Lords in this House, equally concerned in Facts, for which other Lords are impeached by the House of Commons, are still near the King's Person, in the greatest Places of Trust and Honour, and unimpeached; and also, that several Members of the House of Commons equally concerned in the same Facts, for which some of the Lords are impeached, do however remain unimpeached; the said Lord thinks, such a Truth could never have been more properly spoken, in the Maintenance and Defence of your Lordships Judicature, and Resolutions; and insisteth, that what he said at the Free Conference, was not any scandalous Reproach, or false Expression, or any ways tending to make a Breach in the good Correspondence between the Lords and Commons, or to the Interrupting the Public Justice of the Nation, by Delaying the Proceedings on the Impeachments, as in the said Charge alledged; but agreeable to Truth, in Discharge of his Duty, and in the Defence of the undoubted Right and Judicature of this House.
Farther Contests betwixt the two Houses.
The Commons on Friday the 20th, after the sending and receiving the fore-mentioned Messages, Ordered, That no Member should presume to appear on Monday next, at the pretended Trial of the Earl of Orford, upon pain of incurring the utmost Displeasure of the House; and then adjourned to Tuesday Morning. But the Lords continued sitting, and on the 21st, Resolved, 'That unless the Commons Charge against the Lord Haversham, were presented by them with Effect before the End of that Session, the Lords would declare and adjudge him wholly innocent of the Charge.'
On Monday, June the 23d, it was Resolved by the Lords spiritual and temporal in Parliament assembled, That the Resolutions of the House of Commons, in their Votes of the 20th Instant, contained most unjust Reflections on the Honour and Justice of the House of Peers, and were contrived to cover their affected and unreasonable Delays in prosecuting the impeached Lords; and did manifestly tend to the Destruction of the Judicature of the Lords, to the rendering Trials and Impeachments impracticable for the future, and to the subverting the Constitution of the English Government; and therefore, whatever ill Consequences might arise, from the so long deferring the Supplies of this Year's Service, were to be attributed to the fatal Council of the putting off the Meeting of a Parliament so long, and to the unnecessary Delays of the House of Commons.
Trial of the Earl of Orford. ; His Lordship honourably acquitted.
Then the Lords adjourned to Westminster-hall, and after two Proclamations made for Silence and Prosecution, the Articles of Impeachment against Edward Earl of Orford were read, and also his Lordship's Answer to the said Articles; and after taking the same Methods as in the Trial of the Lord Somers, his Lordship, by unanimous Votes, was acquitted of the Articles, and the Impeachment was dismissed.
On Tuesday June the 24th, being the last day of the Session of this Parliament, this Order was made by the Lords.
Impeachments dismiss'd by the Lords.
'The House of Commons not having presented their Charge, which they brought up against John Lord Haversham, for Words spoken by him at a Free Conference the 13th Instant, the said Charge is hereby dismissed. The Earl of Portland being impeached by the House of Commons of high Crimes and Misdemeanours, the first day of April last, the Impeachment is hereby dismissed, there being no Articles exhibited against him. The House of Commons having impeached Charles Lord Hallifax of high Crimes and Misdemeanours, on the 15th day of April last, and on the 14th day of this Instant June exhibited Articles against him, to which he having answered, and no further Prosecution thereupon, the said Impeachment and Articles are hereby dismissed. At the same time, their Lordships dismissed an old Impeachment against the Duke of Leeds.'
Bill for stating the public Accounts, amended by the Lords.
The Affair of the impeached Lords, had so much divided both Houses, that the Correspondence was almost broken off or interrupted with continual Disagreements. Hence the Commons having passed a Bill for appointing Commissioners to take, state, and examine the public Accounts, the Lords made some Amendments to it, which the Commons would by no means allow; and drew up these Reasons for their Disagreement, to be offered to the Lords at a Conference.
The Commons disagree.
'The Commons do disagree to the first Amendment made by the Lords, because it is notorious, that many Millions of Money have been given to his Majesty by the Commons, for the Service of the Public, which remain yet unaccounted for, to the great dissatisfaction of the good People of England, who chearfully contributed to those Supplies. And their Lordships first Amendment prevents any account being taken of those Moneys, by the Commissioners appointed by the Commons for that purpose.
'The Commons do disagree to the second Amendment made by the Lords, because John Parkhurst and John Pascall, Esqs; have for several Years been Commissioners of the Prizes taken during the late War, and accountable for great Sums of Money arising thereby, which ought to be applied to the Use of the Public. That the said John Parkhurst and John Pascall were frequently pressed to account for the same, by the late Commissioners appointed by Act of Parliament; but by many Artifices and Evasions, delayed and avoided giving any such Account as was required by the said Commissioners. That the Clause to which their Lordships have disagreed by their second Amendment, requires them to account before the first of September next, but by their Lordships Amendment they are exempted from giving any such account, which is highly unreasonable.
'The Commons do disagree to the third Amendment, because their Lordships have, in a Clause, directed the Commons to allow and certify a pretended Debt to Colonel Baldwin Layton; whereas the Disposition as well as granting of Money by Act of Parliament, hath ever been in the House of Commons; and this Amendment relating to the disposal of Money, does intrench upon that Right.
'The Commons do disagree to the fourth Amendment, because it is notorious, that Edward Whitaker, mentioned in the Rider left out by their Lordships, hath by colour of his Impeachment, as Solicitor to the Admiralty, received the Sum of five and twenty thousand Pounds and upwards of Public Monies, without producing any just or reasonable Vouchers for the Expence thereof; and therefore ought to be accountable for the same.
'And that by reason of their Lordships disagreeing to the several parts of this Bill, the Supplies provided by the Commons for paying the Arrears of the Army, must of necessity be ineffectual till another Session of Parliament.'
To interrupt these fatal Disputes between the two Houses, it was the greatest Wisdom of his Majesty, first to take no notice of them, and then to put a more speedy end to this Session; and therefore on the said Tuesday, June 24th, the King came to the House of Peers, and sent for the Commons to attend him; when Mr. Speaker upon presenting the MoneyBills, delivered himself to his Majesty in this Speech.
The Speaker's Speech to the King.
'Sir, it is with great Joy and Satisfaction that I attend your Majesty at this time, since your Commons have complied with all your Majesty was pleased to desire at their meeting. They have passed the Bill of Succession, which hath settled the Crown in a Protestant Line, and continued the Liberty of England, which your Majesty hath restored and preserved. They have passed a Bill for taking away those Privileges, which might have proved Burthensome and Oppressive to your Subjects. They have given your Majesty those Supplies which are more than ever were given in a time of Peace, to enable your Majesty when you are abroad, to support your Allies, procure either a lasting Peace, or to preserve the Liberties of Europe by a necessary War.'
His Majesty then gave the Royal Assent to the following Bills.
An Aid for the Expence of the Navy, Guards and Garrisons for one Year. An Act for several Duties upon Low Wines, Coffee, Tea, Chocolate, Spices and Pictures, and Impositions on Hawkers, Pedlars and Petty Chapmen, &c. An Act for 3700 l. Weekly, act of the Excise for the Service of his Majesty's Honshold, &c.
His Majesty then express'd himself as follows:
My Lords and Gentlemen,
The Session being now come to a Conclusion, I must return you my hearty Thanks for the great Zeal you have expressed for the Public Service, and your ready Compliance with those things which I recommended to you at the opening of this Parliament. And I must thank you, Gentlemen of the House of Commons in particular, both for your Dispatch of those necessary Supplies, which you have granted for the Public Occasions, and for the Encouragements you have given me, to enter into Alliances for the Preservation of the Liberty of Europe, and the Support of the Confederacy; in which, as it shall be my Care, not to put the Nation to any unnecessary Expence, so I make no doubt, that whatsoever shall be done during your Recess, for the Advantage of the common Cause in this matter, will have your Approbation at our meeting again in the Winter.
'My Lords and Gentlemen, I shall conclude with recommending to you all, the Discharge of your Duties in your respective Counties; that the Peace of the Kingdom may be secured, by your Vigilance and Care in your several Stations.'
Then the Lord-Keeper (by his Majesty's Command) prorogued the Parliament until Thursday the 7th day of August next; which was soon afterwards dissolved.