House of Commons Journal Volume 1: 05 June 1607 (2nd scribe)

Veneris, 5o die Junii, 1607

Southampton Charter.

Mr. Brock reporteth the Bill for Confirmation of some part of a Charter of theTown of Southampton, &c.

Upon the Question to be ingrossed.

Monday, Counsel to be heard for the City.

Smyth's Nat.

2. Reading: - B. For the Naturalizing of Fabian Smyth: - Mr. Solicitor, Sir Tho. Low, Sir Jerome Horsey, Sir Tho. Smyth, Sir John Bennet, Sir Tho. Crompton, Mr. Gore, Mr. Fuller, Sir Antho. Cope, Mr. Recorder, Mr. Edmonds, Mr. Pory, Sir Wm. Herrick, Sir Rob. Cotton :

- To-morrow, Temple Hall,

Committees.

Bill of Copies, - Monday, Exchequer Chamber.

Inmates; New Buildings: - Tuesday, Temple.

Debts.

2. Reading: - B. For the Assignation of Debts between Merchants: - Mr. James, Sir John Heigham, Sir Tho. Crompton, Sir Henry Poole, Sir Theo. Lowe, Burgesses of Port Towns, Sir John Jeffreyes, Sir Rob. Oxenbridge, Sir Jerome Horsey, Mr. Askwith, Sir John Bennet, Sir Fr. Barrington, Sir Rich. Bulkley, Mr. Gore, Sir Geo. Moore, Mr. D. Steward, Sir Rob. Hitcham, Sir Edwyn Sandys, Sir John Hollice, Sir Tho. Smyth, Mr. Holland, Sir Jo. Hubbard, Sir Edw. Grevill, Mr. Hare, Mr. Recorder, Mr. Fuller, Sir Walter Cope, Sir Hugh Beeston, Sir Roger Wilbram, Sir Tho. Knevett, Mr. Brook, Sir Roger Owen, Mr. D. James, Mr. Upton, Mr. Forcett:- Wednesday, Temple Hall.

Union with Scotland.

Mr. Speaker remembereth the House for the Dispute touching the Point of Trial by Witnesses.

Sir Rob. Hitcham beginneth: - Where plain, manifeste

vera non sunt probanda. In all Cases where Witnesses are allowed there upon Oath. Something referred to Discretion in many Cases. In Scotland no Witnesses at all allowed. -

That the Clause may be put out, touching the Point of Testimony.

Mr. Wentworth : - That the Law is against the Law of God : It taketh away the just Defence of his Life. -

That the Clause may stand.

Mr. Recorder of London : - Now become a Question between Doctor and Student. -

Dangerous to make any Innovation in fundamental Laws. -

To see first, upon what it was grounded. -

Either at the Parties Prosecution, or upon Fame; and that by way of Indictment. -

The King the Party. Fortescue, De laudibus legum, justifies this Proceeding to be merciful. -

Appeal Matter of Revenge; there Witnesses ; but, upon Indictments, tried by 24: That much more just, and no Need of Witnesses.

Witnesses, but not upon Oath; because, by Probability, much Perjury. -

Unfit for the Place ; because with more Ease the People brought there to their. Oath, -

Comites et Barones omnes una voce, " Nolumus mutare leges Angliae, tamdiu usitatas et approbatas,"

Mr Fuller: - Audi alteram partem: Hear indifferently on both Parts, pro et contra.

Life, Liberty, and Dower, especially favoured by the Rules of Law. -

More agreeable to Justice, to have it in the Case of Indictment, than of Appeal. -

Leave little to Discretion: Certainty, and Indifferency, in all Laws, so near as may be.

Mr. Moore: - If the Law were to be made, he would have it,that Witnesses were to be allowed upon Oath; but not safe now to alter the Law, being already established.

Mr. Serjeant Shirley: - To have the Clause out, for Defence of the Law, as it stands.

Sir Tho. Knevett: - That he is against the Bill, as it is ; against the Bill, without the Clause : For both Ways dangerous.

Mr. Martin : - That it may stand in Discretion, if any Man will say, that the accused is wronged.

Mr. Hyde: - Many Malefactors escape, by too much Lenity and Pity in the Jury. - More to the Judge, than to the Jury.

Mr. Tate, - for Maintenance of the Law. Sir Henry Wytherington: - No Change of the Law; but a Necessity, that this new Law, instead of the Border Laws.

Mr. Attorney-general: - A Caution, that theWitnesses may be selected by Discretion of the Judges.

Sir Edwyn Sandys: - The Common Law harder, 1. No Clergy : 2. Fifteen of the Challenge peremptory taken away: 3. Accessary before the Principal, if he be found. -

Agreed, that the Judges shall, if they see Cause in Discretion.

Mr. Yelverton: - His Majesty, in the Penning of this Bill, hath interposed his Honour, and his Reason. Wave the Dispute of Honour, but weigh the Reason, as his Coin. -

If his Majesty will interpose his Reason, let it be inVessels of the same Flesh; that it may be enforced by them, and so be equally balanced; for the King's Voice doth either make Men not speak, or not dare to resolve. -

His Majesty's Honour wreathed about his Crown. In every Man's private Reputation, no Man can know it, or be sensible of it, so well as himself. -

Not to leave it to the Discretion of the Judges. To have it to Question, as it is.

Sir Roger Owen reciteth all the Reasons. That Witnesses shall be examined.

Mr. Brock: - Discretion seldom severed from Affection.

Sir Antho. Cope, Sir Fr. Barrington : - Liberty of Witnesses.

Mr. Solicitor : - Quamvis justitia caeca, aurita est tamen. -

In civil Causes, the Judge learneth secundum allegata, et probata; in criminal Causes, his natural Knowledge may inform him. -

For the mean Course. - Let Witnesses be examined: If the Jury require their Oath - That a mean Course. -

Such Witnesses, as the Jury shall think, upon their Oaths, to be competent and fit.

Quest. Whether this Clause, touching the Allowance of Witnesses, shall be altered : The House divided: Sir John Hollice, Sir Fr. Goodwyn, Yea :

Sir William Harvye, Sir Rob. Oxenbridge, No :

With the Yea, 107.

With the Noe, 139. - The Clause to stand.

Q. Whether the Bill shall be ingrossed: Without One Negative.

Call.

Thursday, the House to be called, the Afternoon.

Committees.

The Bill for Transportation, and Travel without Licence, - this Afternoon.

Inmates: - Tuesday Afternoon.