Journal of the House of Commons: Volume 10, 1688-1693. Originally published by His Majesty's Stationery Office, London, 1802.
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Veneris, 2 die Augusti; 1° Gulielmi et Mariæ.
Leave of Absence.
ORDERED, That Sir John Wyn have Leave to go into the Country, for Six Weeks.
Preventing Export of Wool.
A Petition of the Eastland Merchants, was presented to the House, touching the Matter of the Bill for preventing the Exportation of Wool: But it appearing, that they took Notice therein of a Clause added, or to be added, to the Bill, it was conceived to be irregular; and so the Petition was withdrawn.
Act 5 H. 4. against multiplying Gold and Silver.
A Message from the Lords, by Sir Miles Cooke, and Mr. Meredeth;
Mr. Speaker, We are commanded by the Lords to acquaint this House, That they have agreed to the Bill to repeal the Statute of 5& H. IVi. against multiplying Gold and Silver; without any Alteration.
Attainting certain persons.
Also, That they desire a present Conference with this House, in the Painted Chamber, upon the Bill for Attainting of several Persons now in Rebellion against their Majesties.
And then the Messengers withdrew.
Resolved, That this House doth agree to a present Conference with the Lords, as is desired.
And the Messengers were called in again; and Mr. Speaker acquainted them therewith.
Resolved, That Sir Wm. Williams, Colonel Birch, Sir Rich. Temple, Lord Commissioner Maynard, Mr. Serjeant Trenchard, Mr. Christy, Sir Rob. Sawyer, Mr. Hawles, Mr. Hamden, Sir John Guise, Sir Tho. Littleton, do manage the said Conference.
And the Managers went to the Conference accordingly.
And being returned,
Mr. Hamden reports That the Managers had been up at the Conference; which was managed by the Earl of Rochester: That he had not brought back the Bill; for it was not delivered him: That the Earl of Rochester said, The Lords had not gone through the Bill for Attainting of the Persons in Rebellion in Ireland, but only to the Persons that were named; for that the Lords did not know what Evidence the House of Commons had of those Persons being in Ireland: And therefore made it their Motion at the Conference, That they might be informed from this House, Who are the Persons that gave the Evidence against them here: For, upon their best Inquiry, they say they cannot learn some of them have been there: They instanced in the Lord Hunsden: And they did think, that if they should proceed without This, they might not have all the Evidence they have: And therefore they do desire, that the Commissioners will give a List of the Persons giving Evidence to the Commons, against the several Persons designed by this Act to be attainted; that the Lords may be fully satisfied by Evidence, viva voce, to attaint the several Persons; as they suppose the Commons are: For that if the Lords should, by themselves, inquire after such Evidence, they may fail of having all the Evidence the House of Commons have had.
Ordered, That Mr. Serjeant Trenchard do, To-morrow Morning, give the House an Account of the Witnesses who proved the Persons who are named in the Bill for Attainting of several who are in Rebellion against their Majesties, to be in Arms in Ireland.
Leave of Absence.
Ordered, That Sir John St. Aublin have Leave to go into the Country, for Three Weeks.
Ordered, That Mr. Crawford have Leave to go into the Country, for a Month.
Reversing Judgments against Oates.
Mr. Solicitor General made the Report of the free Conference had with the Lords, upon Monday last, touching the Amendments proposed by the Lords to be made to the Bill for reversing Two Judgments given in the Court of King's Bench against Titus Oates, Clerk.
Ordered, That the said Report be entered in the Journal of this House: And that Mr. Solicitor General be desired to take care in the Examination thereof.
Which Report is as followeth; viz.
THAT the Members of this House, who were commanded to manage the free Conference with the Lords, on Monday last, concerning the Amendments made by the Lords to the Bill, intituled, An Act for reversing Two Judgments given in the Court of King's Bench against Titus Oates Clerk, did attend their Lordships.
That the Conference was begun by the Managers of this House; who did acquaint the Lords, That the Commons had desired this free Conference, in order to a good Correspondence with their Lordships.
That they look upon the Bill for reversing the Judgments against Oates, not to be the Business of a particular Man, but of every Subject in England, with regard to his Person and Estate: And that the Honour of Parliaments, publick Justice, and the Protestant Religion, were concerned in it, as well as the Integrity of King Charles the Second, and his Privy Council: And that the Lords Amendments, if agreed to, would make that Bill of great Prejudice to the Subject, instead of answering the Ends which were intended by the Commons.
That the Lords Amendments were of two Sorts; some relating to the Judgments, and others to the Verdicts.
As to the Amendments relating to the Judgments, the Commons had hoped, That, after the Declaration presented to their Majesties upon their accepting the Crown (wherein their Lordships had joined with the Commons in complaining of the cruel and illegal Punishments of the last Reign; and in asserting it to be the ancient Right of the People of England, that they should not be subjected to cruel and unusual Punishments; and that no Judgments to the Prejudice of the People in that kind ought in any wise to be drawn into Consequence, or Example); and after this Declaration had been so lately renewed in that Part of the Bill of Rights which the Lords have agreed to; they should not have seen Judgments of this Nature affirmed, and been put under a Necessity of sending up a Bill for reversing them; since those Declarations will not only be useless, but of pernicious Consequence to the People, if, so soon after, such Judgments as these stand affirmed, and be not taken to be cruel and illegal within the Meaning of those Declarations.
That the Commons had a particular Regard to these Judgments, amongst others, when that Declaration was first made; and must insist upon it, That they are erroneous, cruel, illegal, and of ill Example to future Ages; which is the Character fixed upon them by the Bill sent up to the Lords.
That the Lords having gone so far as to agree the Judgments to be erroneous, it could not be denied that they were illegal: For that which makes a Judgment erroneous is, For that it is against Law.
That it seemed no less plain, That the Judgments were cruel, and of ill Example to future Ages.
That it was surely of ill Example for a Temporal Court to give Judgment, "That a Clerk be divested of his Canonical Habits; and continue so divested during his Life."
That it was of ill Example, and illegal, That a Judgment of perpetual Imprisonment should be given in a Case, where there is no express Law to warrant it.
It was of ill Example, and unusual, That an Englishman should be exposed upon a Pillory, so many times a Year, during his Life.
That it was illegal, cruel, and of dangerous Example, That a Freeman should be whipped in such a barbarous manner, as, in Probability, would determine in Death.
That here were Precedents made, which did not concern this Man only, or only this Offence; but the Judgments pronounced against Oates, were Judgments against every Englishman, Subject Ecclesiastical as well as Temporal; the Lords as well as Commons.
That this was avowed, when these Judgments was given by the then Lord Chief Justice of the King's Bench; who declared; "That all the Judges had met; and unanimously agreed, That where the Subject was prosecuted at Common Law for a Misdemeanour, it was in the Discretion of the Court, to inflict what Punishment they pleased, not extending to Life, or Member."
That as soon as they had set up this Pretence to a discretionary Power, it was observable how they put it in Practice, not only in this, but in other Cases, and for other Offences, by inflicting such cruel and ignominious Punishments, as will be agreed to be far worse than Death itself to any Man who has a Sense of Honour, or Shame: So that, it was hoped, the Lords would find themselves concerned in Interest to depart from their Amendments, and not to rest satisfied with a bare saying, That such Practices ought to be prevented for the future: Much less to insist upon their additional Clause A; which is so far from declaring those Judgments to have been illegal, that it does plainly import an Allowance of them: Nor does it go so far, as to provide a Remedy for the future: For it does only Enact, That such excessive Punishments ought not to be inflicted for the future: Which seems rather to refer to the Severity of the Execution, than to the Judgment itself.
It was agreed by the Lords at the last Conference, That the Judgments of Affirmance given by the Lords, cannot nor ought to stand, when the Judgments of the King's Bench are reversed: And therefore the Commons think themselves concerned to insist, That the Act may speak plain; and that it may be understood by all who have heard the Judgments against Oates were once affirmed by the Lords, that those Judgments of Affirmation may subsist no longer.
As to the Lords Amendments, which relate to the Verdicts;
It was urged by the Managers for the Commons, That so severe and extraordinary a Thing, as the making a Man infamous, and taking away his Testimony by Act of Parliament, ought not to be done, but upon the greatest Consideration; especially in such a Case as this, where the Honour of Parliamentary Proceedings, and of the English Justice, were more concerned than Oates.
The Business of the Popish Plot had great Examination in several Parliaments, and in several Courts of Justice: In all which Oates stood a good Witness: And though his Testimony did not stand alone, but was confirmed by other Witnesses, and by Papers and Letters (Evidence which could not be mistaken); yet it did deserve to be considered, if the Declaring him to be an incompetent Witness, by Act of Parliament, would not be interpreted a great Step towards disavowing the Popish Plot; it being certain, That what had been done by the Lords, in affirming the Judgments against him, had already had such an Interpretation beyond Sea: It was therefore fit to have it plainly known, Whether that was intended; and to have it well weighed, whether the Thing will be so much for the Honour of our Nation, or our Religion, that we should go out of the Way, and do an extraordinary thing to come at it:
For, by Law, when the Judgment is erroneous (which is confessed in this Case), the whole Record is to be annulled: And therefore, to let so much of the Record stand as relates to the Conviction (which is in Effect done by the Lords Clause (B), is to do an extraordinary thing; is plainly to pass a new Censure upon Oates; and to make that which was singly the Opinion of the Jury before to be the Act of the whole Parliament: Which the Commons can see no Reason to agree to.
And, though it be confessed, That the present Proceeding is in the Legislative way, and therefore there is no Necessity of strictly pursuing the Forms of Courts of Justice; yet, when the Commons reflect how they came to be driven to use this extraordinary Course for reversing these Judgments, they cannot satisfy themselves, that it is just to take from the Party an Advantage which he ought to have had in the ordinary Methods of Law, without stronger Reasons than they have heard in this Case.
They observe, The Perjuries assigned against Oates were not in the Substance of his Evidence, but in the Circumstance of Time; in which there might be an innocent Mistake, without contracting the Guilt of wilful Perjury; and that a colourable Counter Evidence might be easily set up to such a Point of Time; especially when the Thing was under the Management of Jesuits, whose whole Order was wounded by Oates' Evidence, and who are not scrupulous of using indirect Acts, to preserve their Credit or Interest.
It was also to be observed, That the Matter in which the Perjuries were assigned, were not new Discoveries; but the very same things had been objected, and insisted on at former Tryals, several Years before, when Matters were fresh in Memory, and when most of the same Witnesses were examined against Oates: And yet, after a full Hearing of them, and of the Witnesses produced on the Behalf of Oates, his Testimony was supported, to the full Satisfaction of the Judges and the Juries.
So that, after all Endeavours to the contrary, Oates stood upright, his Testimony unshaken, till a Papist was upon the Throne; till irregular Sheriffs were made; till new Freeholders Books, consisting only of Persons fit to serve the present Turn, were formed; till Grahme and Burton were by Experience become perfect in the Mystery of managing Juries; till neither Counsel nor Witnesses could, with Safety, appear for Oates; till those Times were come, when (as the Lords and Commons have both affirmed in their Declaration of the Thirteenth of February) partial, corrupt, and unqualified Persons were returned, and served on Juries.
That Violation of Law, Partiality, and Corruption, were the Character of the Times; and were visible in every thing that moved towards the attaining those Verdicts: And therefore the Commons think themselves well justified in calling the Verdicts corrupt, though no direct Giving of Money to Jurors, or Witnesses, could have been proved: For if nothing else but a direct Proof of Money given, make a corrupt Verdict, it would be very difficult to shew, that ever a corrupt Verdict was given: Nay, it is possible a Jury may have taken Money; and yet give a true and honest Verdict.
Any Partiality in the Jury, let either Malice or Affection be the Motive, makes the Verdict corrupt: If the Juror do but declare his Thought before the Tryal, it is a good Cause of Challenge: So nice is the Law in requiring, that Jurors be indifferent, that if any one of the Jury be returned at the Denomination of the Party, or to the end that he should be more favourable to the One Side than the other, the whole Array out to be quashed.
It appeared to the Committee of the House of Commons, who were appointed to inquire into the Proceedings upon the Indictments against Oates, That so great a Price was set on the destroying Oates' Credit, That the Prosecutions were notoriously carried on by express Directions and Commands from the Court; that great Sums of Money were distributed, in order to it; and fit Instruments employed in procuring and instructing Witnesses to swear against Oates, in the same Points, which had been fully examined before; that, under colour of paying their Charges, considerable Sums of Money were given to Witnesses; that, to make sure of them beforehand, they were required to make Affidavits, beyond Sea, of what they were to swear at the Tryal; which were drawn so, that it was proved to the Committee, That one of the intended Witnesses refused to swear again what they had thought fit to set down for him in his Affidavit.
It did appear to the Committee, That Clubs were kept at Taverns; Where Jurors were named in these State Tryals (as they were called); and where Burton and Grahme were assisting, and gave their Directions.
Besides, there lay an Exception of Partiality to the Witnesses, being all of them, in a manner, Novices at St. Omers, a College of Jesuits; against which College, Oates had given particular Testimony: Besides (as Jesuits) they could not esteem it of little Consequence to their Order, to discredit the Evidence of the Popish Plot; and disparage those Parliaments who had prosecuted it with so much Vigour: And how far the Principles of the Jesuits would allow them to instruct their Novices, that an Oath, administered by Heretick Magistrates, was to be little regarded, might deserve to be thought upon.
It appeared to the Committee, That in this Case no less than Nine of the most considerable Counsel were employed against Oates, and had frequent Meetings, and great Fees; which seemed extraordinary, when nothing was in Question but a Point of Time.
It appeared, That great Treats were given several times to the Jurors; which the Law does not allow.
It appeared also, by the Accounts upon Record in the Exchequer, That above Three thousand Pounds was expended about convicting Oates: Which the Commons could not but think was too great a Sum to be fairly spent, upon Occasion of Two Tryals by London Juries.
The Commons saw no Cause to add any Authority or Reputation to such Verdicts, upon a bare Possibility that new Matters might arise between the former Tryals, and those for the Perjuries (which was a thing insisted on by the Lords at the last Conference); since it was, at least, alike possible, that no such new Matter did arise: For, on the one side, it was owned by the Lords, that they had not examined the Fact; and on the other side, the Indictments shewed, that the Points, in which the Perjuries were assigned, were not new Matters, but the same which had been drawn in Question at the former Tryals, and upon the Credit of the same Witnesses: So that the Presumption lay stronger on the Commons Side.
As to what was mentioned by the Lords at the last Conference, "That the Corruption of the Verdicts did not appear to them;" it was said, That was not the Fault of the Commons; the Lords having the same Means of being informed as the Commons had, if they had thought fit to use them.
It was agreed to the Lords, That there was a Respect to be had to legal Proceedings; but then that Respect ought to be equal: And the Examination of the same Facts, in the several Tryals in King Charles' Reign, did deserve, at least as much Regard as the Examination of the very same Facts in King James' Time; especially when the former Tryals stood confirmed by the concurring Opinions of King Charles himself, and so many successive Parliaments: Besides, it was scarce credible, that the Judges, who could be guilty of giving such an extravagant Judgment, could be indifferent in their Directions at the Tryal.
The Managers did further urge, That the Lords Clause (B) did make it impossible for Oates to clear his Innocence, though that was said to be the End for which it was intended: For if the Conviction stand, there is no legal Course left for hearing and determining the Matters for which he was convicted: And were it supposed the Lords should think fit to give themselves the Trouble to enter into the Examination of the whole Matter, and could find out a Means of doing it; yet, if the Lords Proviso was agreed to, Oates could have no manner of Advantage, though his Innocency was fully cleared, by any Judgment the Lords could give; but he must still remain an infamous Person, unless a new Law were made to restore him: And how far it is consistent with the Rules of Justice, to leave a Man in such Circumstances, seemed very easy to determine; especially since, by pursuing the known Methods of Law, and entirely reversing the Judgments by Act of Parliament now, as it ought to have been done before by the Lords in their Judicial Capacity, Oates may be again indicted, and brought to an indifferent Tryal; according to the Success of which, his Credit will stand or fall: And that is the only regular way which does remain, to have these Matters re-examined.
The Managers for the Lords, who spoke at the Conference, were the Earls of Rochester, Berkly, and Nottingham, the Lord Bishop of London, and Lord Bishop of Salisbury.
The Substance of what was said by the Managers for the Lords, as to their Amendments, with relation to the Verdicts was,
That, if it were proved to them, that the Verdicts were corrupt, it would incline them to agree; That being the Issue between the Two Houses: If That was not made out, the Lords did not think it fit, that Oates should take Advantage of an erroneous Judgment, to destroy the Verdict.
That, in order to let them into the Examination of the Matter they had added the Clause B: That the only proper time for the Examination of that Matter was, after the Commons had agreed to that Clause: For the Lords could not enter into the Examination of it in their Judicial Capacity, because they were then only to take the Records as they stood before them.
That to make the Verdicts corrupt, there must be some Corruptions made out between the Time of the former Tryals, and the Time of the subsequent Tryals for the Perjuries.
That they agreed there might be other Methods of Corruption than by Money; but that it was hard to assign them.
That the Persons who served upon the Juries at Oates's Tryals, were Men of great Consideration in London, some of the first Form of Merchants; and to dispute their Verdicts was, in Effect, to attaint them: That few Men but would have been pleased to have had such a Jury in a Case of their own.
That the Lords would rather believe Oates guilty of Perjury and Knavery, than look upon the Grand Jury and Petty Jury to be perjured.
That there was no Proof before the Lords, That there was any Favour in the Return of the Jury; or, that they were nominated by a Club.
That there was no Incompetency in the Witnesses against Oates; for though he had sworn against Many, he had not sworn against All the Jesuits.
That the Treating of Jurors was acknowledged to be scandalous; but there was no Proof of That before the Lords: And if it were true, yet it had not been sufficient to set aside the Verdicts, without other Proofs of Corruption, and Those fit for a Court of Record to receive.
That they did not think it sufficient Evidence, That Grahme and Burton had charged great Sums in their Books as paid upon the Account of those Tryals; for, That might be false: Or, suppose it were expended on the Witnesses, did That make the Verdict corrupt? so that the Lords might legally, judicially, and honestly, give their Vote upon the Question.
That it was a Matter of great Importance, and concerned every Man in his Life and Estate, if it were taken for granted, that, because a Man had, at a Tryal, passed for a good Witness, he was not to be prosecuted afterwards for Perjury: That a Man accused was then in a very unfortunate Condition; for the Grand Jury was to keep the King's Secrets: The Prisoner in such a Case was for the most part kept close, and his Witnesses were not sworn; so that he could not be ready for his Defence for the present: And if the Witnesses might not afterwards be prosecuted for Perjury, by him or his, then there was an End of all Prosecutions for Perjury.
That the Point of Time was material: And that a Person accused of Treason had hardly any thing else whereby to make his Innocence appear; since there was no Proving of a Negative.
That Counsel was assigned to Oates: And that Witnesses were summoned, and did appear for him; as they had heard.
That there was no Way to reverse a Verdict but by Act of Parliament: And, before That was done Justice did require, that the Party should clear his Innocence.
That the Lords had Reason to expect the Commons should make out to them the Corruption of the Verdicts; and shew that they had unquestionable Evidence to prove, that several thousand Pounds were expended.
That they had looked upon Oates as perjured in other Matters: That he had accused the Queen Dowager of High Treason, in conspiring the Death of her Husband, at the Bar of the House of Commons; which nobody could believe of her:
That he had sworn at the Council Board, He had no other Person to accuse: and yet, after, had accused the Queen Dowager.
That Oates at first might come in with a fair Intention, and for Discovery of the Truth; but that appearing in the Presence of so many great Persons, and finding so much Ear given to what he said, it was natural that it should either damp and terrify him, or create too great a Confidence: That it had the latter Effect upon him; and made him fancy himself to have a Right of creating Evidence, rather than delivering it: That it was not fit to encourage such Witnesses: That his Brain seemed to be turned: And that, when he was lately brought before the House of Lords, he seemed to hang his Rod over them.
That Now the Parliament, acting as Legislators, were not tied down to Form: That they did not inflict any new Censure on him, but left him in the State they found him.
That this was a Matter of great Expectation: That the Eyes of all Europe were upon it: And that it would be the Occasion of great Censures, if he should be set up for a Witness again, without a full Examination of the whole Affair; especially in the Case of a Conviction for Perjury; which had something in it more peculiar than other Crimes; for every one had a particular Concern to be covered from it.
That they would not enter into the Question of What was the Difference between an erroneous and an illegal Judgment; though, perhaps, a Judgment that was erroneous in point of Form, might not be said to be illegal.
As to the Affirmance of the Judgments; and the Amendments relating to the Judgments;
The Judges had owned to the Lords, That there was a Latitude left to the Court in Judgments, in case of Perjury; which was one thing that moved them to affirm the Judgments: But that they had never done it, had it not been attended with the Verdict; which the Lords thought of fatal Consequence to take away.
That, when the Case came to be debated in the House of Lords upon the Writs of Error, there was not one Lord but thought the Judgments erroneous, and was fully satisfied, That such an extravagant Judgment ought not to have been given, or a Punishment so exorbitant inflicted upon an English Subject: But, considering his accusing the Queen so impertinently, and several other Instances; rather than leave so ill a Man as Oates capable of being a Witness, they, in that Streight, chose to affirm the Judgments, though they were satisfied of their being erroneous: And, to shew they were sensible of this, at the same time when they affirmed the Judgments, they thought fit, that a Bill should be brought in to the House of Peers to prevent the Inconveniencies of the like Judgments for the future.
And therefore, when the Lords had gone so far in their Judicial Capacity, as to affirm the Judgments, rather than the Verdicts should be set aside, the Commons were not to expect that they would recede now, and set up Oates for a Witness again, without unquestionable Proof of Corruption in the Jury.
That the principal Matters, insisted on by the Lords, were,
1. To leave out what concerned the Corruption of the Verdicts.
2. That their Proviso against Oates's being received for a Witness do pass:
3. That so great an Hardship should not be put upon the House of Peers, as that they should, in express Terms, reverse their own Judgments, since there was no Necessity of it.
The Managers for the Commons, by way of Reply, gave a summary Account of the whole Proceedings in relation to the Popish Plot; and of the several Subornations, and other foul Practices, which had been used to stifle the Evidence, and discredit the Witnesses, particularly Oates.
As to the Lords Amendments, which concerned the Judgments, It was said by the Managers,
That there were Precedents made, which affected every Englishman.
That, by taking upon them to affirm such Judgments as These, the Lords had, in a manner, taken the Law into their Hands.
That this arbitrary Power, in the Lords Judicature, is a new Discovery; and if it had been understood in former Times, would have been a very expeditious Way of altering the Law, upon several Occasions.
The Lords, as a Court of Judicature, are as strictly tied to give Judgment upon a Writ of Error, according to Law, as any inferior Court whatsoever: They must not proceed upon Considerations of Convenience: But this Judgment of the Lords is agreed to be given, not according to Law, but according to an Opinion which their Lordships had conceived of the Party; and that also, without any Judicial Examination: Instead of correcting the acknowledged Errors of their Judgments in the King's Bench, they affirm them; and so change the Law, which ought to be the certain and steady Rule of Government, into the arbitrary Resolutions of That House.
That nothing was aimed at by the Commons in this Bill, but to set that Matter right: If this Bill be lost, the Lords have settled it for Law, That every Subject may be used in this ignominious and barbarous manner. Oates is the least Part of the Question, how much soever he seems concerned in it: The Grievance is, That the whole Kingdom, for Oates's . . . . ., must be made liable to these Whippings.
The Commons hoped the Lords will take this Opportunity of redeeming this Error, by passing the Bill as it was sent up by the Commons; and not expect, because they have given a wrong Judgment, that therefore the Commons must join to support it by an Act of Parliament: For their Lordships Clause did really countenance the Judgment against Oates; enacting only, That such Punishment shall not be inflicted for the future.
That it was of great Importance to the Kingdom to have this Matter settled; Judgments of this Kind having been extended to several Persons, and to very different Cases; as in That of Mr. Johnson: It was thought (with Reason enough perhaps) by the Ministers of those Times, That such Punishments would awe the People, and fit them for Slavery, worse than Death itself; according to Sir Thomas Smith's Observation, "That no Nation is less fearful of Death, or more afraid of Torments, than the English."
That the Commons could not think the Nation safe without an express and plain Declaration, not only, That the Judgments of the King's Bench were illegal, cruel, and of evil Example to future Ages, but also, that the Affirmation of those Judgments was contrary to Law.
To what was said by the Lords, to maintain the Amendments which concerned the Verdicts, the Managers for the Commons replied to this Effect;
That the Lords, by insisting not to agree to the Clause in the Bill which calls the Verdicts corrupt, unless the Commons could bring positive Proof of an express Contract for Money, to be paid directly to hire the Jurors to give the Verdicts, did seem to have inverted the several Methods of Proceedings in their distinct Capacities.
In their Judicature, where they ought to act by the strict Rules of Law, they proceed according . . a supposed Convenience: In their Legislative Capacity, where there is a Latitude of Proceeding according to a moral Certainty and Convenience, a single Expression, "of a corrupt Verdict," though inserted upon such just Grounds, will not be allowed; unless a precise Proof be made in the strictest Forms of Courts.
That it was not the Business of the Commons to furnish the Lords with Evidence, or to inform them otherwise than by reasoning at Conferences: The Lords have proper Methods whereby they may inform themselves, when they think Evidence requisite.
That it was notorious, That the whole Administration of the Government, especially with relation to Religion, was at That time corrupt.
The Design was to overthrow the Reformation, and restore Popery to be the National Religion: And this could not be effected otherwise, than by totally perverting and corrupting the Laws, and the whole Course of Justice.
A Popish King they had; the House of Peers was to have been filled with Papists, by Dispensation with the Act of Thirtieth of King Charles the Second; and a Popish House of Commons was to be packed, by means of Quo Warrantos, Surrenders, and Making and Regulating of Corporations.
In the Courts of Judicature they did run upon every Man who durst assert the Rights of an English Subject; resolving by partial and corrupt Means, to bow, or break them.
For this Purpose they provided and packed Judges, Sheriffs, Jurors, and Witnesses: And those in Authority, who ought to hold the Balance indifferently, were indeed a Party; a corrupt Party.
This is proved by the Declaration of the Thirteenth of February; wherein the Lords and Commons did agree, "There were evil Counsellors, Judges, and Ministers, that assisted the late King to subvert and extirpate the Protestant Religion and the Laws and Liberties of this Kingdom: That the Laws were suspended and dispensed with; an Ecclesiastical Commission executed, and Bishops committed and prosecuted for an humble, honest Petition; Protestants disarmed, whilst Papists were armed and employed; partial and corrupt Persons returned, and served on Juries; excessive Bail required; excessive Fines imposed; and illegal and cruel Punishments inflicted."
When the Commons sent up this Declaration, the Lords acknowledged and agreed to the Truth of these Particulars upon the Notoriety of the Fact, without asking the Commons to prove any of the Articles.
If there were such foul and corrupt Proceedings, as the Lords have agreed there were, can it be thought, that, in this particular Case of Oates (who had so highly provoked them, and upon the Ruin of whose Credit the Reputation of the whole Party did depend) they departed from Themselves; and for once, proceeded indifferently equally, and uncorruptly?
The Lords might as well, if not better, put the Commons to prove any or every the Proceedings in the late Reign to be corrupt or unequal; which would be to deny or doubt, in every Particular, what they had expressly owned in general.
That the Matter in Oates's Tryal was self-evident: They tried Points that had been examined in Parliament; and were proper to be re-examined only there; the Witnesses were provoked Enemies; and though his Evidence was not against all the Jesuits, it reflected upon the whole Order; and was directly against the College at St. Omers: The Jurors were such, whose Affections and Prejudices were well known; and they were returned by Sheriffs not legally constituted: And the Judges were Chief Justice Jeffryes, and his Companions.
To render a Verdict corrupt, it is not absolutely necessary that the Jury should bargain and sell it for Money: If there were a false Bias, if they were swayed by Prepossession, Prejudice, Hope of Preferment, or Gain, or Fear of Displeasure, it is enough: Or, suppose the Judges were corrupt; and directed false Law, or false Fact, or overawed the Jury; or admitted a Party to be a Witness, or Juror (as in Effect it was); That was enough to render the Verdict corrupt: But, which is worse Here, the Jury was returned at the Denomination of a Party: It was the Fashion of the Times, That every one who was accused was to be convicted at the Peril of the Judges and the Jury.
If Oates's Brain was turned, as was said by the Lords, the more wrong was done, by convicting him of Perjury; which a Madman cannot be guilty of: And, after such cruel Usage (which would make a wiser Man mad) it may with more Reason be believed his Brain is turned; and then there is little Danger of his being used in Evidence for the future.
That it was observable, that Oates was sentenced to be whipped from Aldgate to Newgate on the Wednesday; and from thence to Tyburne on Friday following: Which could be intended no otherwise, but in the Nature of a Rack; that, by the Smart of the First Sufferings, and the approaching Terror of the next, he might be brought to make such a Recantation as was desired: And it is hard to think, that any thing, but a full Persuasion in himself; that what he swore was true, could support a Man under such Torture.
If Oates had been guilty of Perjury about the Queen Dowager, or any other Matter, which has not hitherto been brought in Question, it did not relate to the present Case: He is liable to be indicted, and punished for it, whatsoever becomes of this Bill.
That the Commons did not argue, That, because a Man had been once believed at a Tryal, he was not to be prosecuted for Perjury after: But they observed, that the very same Objections had been made to Oates's Testimony at former Tryals, and proved by the same Witnesses; and yet the Juries gave Credit to Oates: So that, according to the Lords Way of reasoning, to suppose Oates to be perjured in those Points, was to attaint those former Juries; and the Lords ought to be as careful of charging such a Guilt upon one Jury, as another.
Upon the whole Matter, the Commons did not think it reasonable it should be required of them to concur to support any Part of this erroneous Record.
It is the Right of the Subject, that all that is done before or after an illegal Judgment, should fall with it; and though, in Proceedings in the Legislative Way, the Commons are sensible they are not tied up to Forms, yet they are certainly bound to the Rules of natural Justice, and are not to deprive the Subject of his legal Advantage.
The Managers for the Commons concluded the Conference, by stating the Case in short to the Lords:
A Writ of Error is brought in the House of Peers: The Lords do all avow the Judgments to be erroneous; yet, as Judges, do, for collateral Reasons, assume an arbitrary Power to affirm it.
The Nature of the Judgment being such, as that every Subject was concerned in the highest Degree, that so dangerous a Precedent should not stand, the Commons find themselves under a Necessity of sending a Bill to the Lords to set the Matter right by reversing the Judgment.
The Lords refuse to pass the Bill but upon Terms:
1st. That Part of the Record must stand:
2. That there must be no Notice taken of the Judgments of Affirmation given by the Peers:
As these are the Terms now stood upon, so in any other like Case they might impose whatever other Terms and Conditions they had a mind to.
The Consequence must be, That the Lords, as Judges, make what they think fit to be Law; and the Matter shall never be set right in the Legislative Way, but upon such Conditions as the Lords shall be pleased to impose:
And how far this concerned the King, and the Commons, as to their Right in the Legislature, was obvious.
A Debate arising in the House, touching the said Amendments proposed by the Lords to be made to the Bill;
And the Question being put thereunto severally, That the House do agree with the Lords in the said Amendments;
It passed in the Negative.
Ordered, That the Committee appointed to inspect the Journals, touching Precedents in Cases of Conferences and free Conferences, do make their Report To-morrow Morning.
Ordered, That the Committee who managed the free Conference with the Lords, touching the Amendments to the Bill for reversing Two Judgments given in the Court of King's Bench against Titus Oates, Clerk, do inspect the Journals of both Houses, and examine, Whether there be any Precedents of free Conferences desired; and yet there hath not been thereat a Liberty of Debate of the Matters for which such free Conferences have been desired.
The Warrant for the Pardon to Titus Oates was read; and is as followeth; viz.
OUR Will and Pleasure is, That you prepare a Bill for Our Royal Signature to pass Our Great Seal, containing Our gracious Pardon to Titus Oates, Clerk, to discharge him from all such Punishments as he is liable unto, by virtue of any Sentence pronounced against him for Perjury, whereof he hath been formerly convicted; for which this shall be your Warrant.
Given at Our Court at Whitehall, the Three-andtwentieth Day of July 1689, in the First Year of Our Reign.
Resolved, That the said Managers do inspect the Journals of the House of Lords, and examine, Whether there be any Address therein for a Pardon to Mr. Oates.
State of the Nation.
Resolved, That the House do, To-morrow Morning, at Ten of the Clock, resolve itself into a Committee of the whole House, to consider of the State of the Nation, in order to represent it to his Majesty.
And then the House adjourned till To-morrow Morning, Nine of the Clock.