Grey's Debates of the House of Commons: Volume 10. Originally published by T. Becket and P. A. De Hondt, London, 1769.
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Thursday, December 17.
Mr Montagu reported Reasons to be offered at a Conference, for disagreeing with the Lords in their Amendments to the Clause marked A (fn. 1), in the Bill of Tryals.
Reasons for disagreeing.
"This Clause, added by the Lords, is of a different nature from the intent and purport of the Bill; which is designed to extend no farther than to allow the Subject a more equal way of making their Defence, in Tryals of Treason and Misprision of Treason, but not to alter the Court, or the method of constituting it."
To which the Lords, at a Conference, returned the following Answer:
"The Lords observe, That, in the Reasons offered by the Commons, for disagreeing with them in the Clause marked A, in the Bill entitled, "An Act for the better regulating of Tryals, in cases of Treason," they do not object against it as unreasonable in itself, but as it is of a different nature from the intent and purport of the Bill.
"The Lords look upon it quite otherwise, and cannot conceive how any thing should be thought foreign to the Bill, that doth so naturally agree with the scope of it, which is the protection of all innocent men, who shall at any time hereafter be accused of any of the crimes therein mentioned.
"The ground of this Bill is, that every man, who shall be prosecuted for Treason, or Misprision of Treason, shall have a fair and equal Tryal for his Life; so that, in what respect, or by what circumstances soever, as the course of proceedings now is, an innocent man's Life, Estate, or Liberty, may be unduly exposed by his being prosecuted for the Crimes above expressed, it is very fit there should be a remedy; and therefore, if the present method of trying Peers giveth just cause of objection to it, in relation to the true and natural meaning of this Bill, it is either to be showed, that the objection is of no force, and that, in the present method, there is no such defect or inconvenience, or it must be acknowleged there ought to be a remedy; and then it cannot be denied, but that such a remedy cometh properly in this Bill, since it agreeth both with the Title and Intent of it.
"The Lords are of opinion, That the interest of the People of England is at least equally concerned with that which they may be to have in passing this Clause.
"In their judicial capacity it can never be thought convenient for those, to whom they are to administer Justice, that the Lords, when they are to receive it, are to lie under greater hardships and disadvantages than others, in cases where their Lives are to be defended.
"And, as they have a part in the Legislature, it seems to be yet less reasonable, that they should, in the method of their Tryals, be so distinguished, as to be more exposed than the meanest Subject in the Kingdom.
"The Lords conceive that nothing is more conducing to preserve the whole Constitution, than a mutual care of one another in all the parts of it. It is that most especially, which must cherish and promote the good correspondence betwixt both Houses, which is so indispensibly necessary for the maintaining the safety and greatness of the Nation; of which they are so fully persuaded, that they will never fail to support and improve, to the utmost of their power, the true interest of the House of Commons, and therefore cannot doubt but that the House of Commons will be as ready to comply with the Lords in this, or any other instance, where they shall be well founded, as they take themselves to be in the matter now in question (fn. 2).
[December 18, 19, 21, 22, 23, 24, 29, 30, Omitted.]
Thursday, December 31.
Debate on the Conference with the Lords on their Amendments to the Bill of Tryals.
Sir Charles Sedley.] The Lords desire a little shed to shelter them, in their Tryals out of Parliament, by a Lord Steward. They would have the same Tryals out of Parliament as in Parliament; which is the same thing as if on Wednesday or Thursday. Whilst we are destroying our Enemies, I would not lose our best Friends. I would have something in the Government good, besides the King and Queen. I would have something for our money. I hope every body will contribute to the safety of both the Lords and us, and now we see strangers made Lords, and some have Pensions from the King. The House of Peers is a new thing now. I would therefore agree with the Lords in their Amendments.
Mr Howe.] If the Lords are not Subjects, I would have no regard to them. If Gentlemen were better reconciled to the Bill, they would be the more for this Clause. I have been grumbling for this Clause these dozen years. A great many honest Gentlemen have lost their lives for want of this Bill. If it be Law already, that a Prisoner should have a copy of the Pannel and Indictment, why is it refused them now? If we do it not in the time we have a King that will secure your Liberties, [we never shall]—I hope we shall take this advantage for Posterity by this Bill. We lose nothing by this advantage that we give the Lords. I cannot but call to mind that all great Officers, in Henry IV's time, were chosen per communitatem Regni, that the Lords might be out of danger of their Lives, which I call so for doing their Duty; and that was the Design of that Petition. What Lord dares stand for his Country, when they have Halters about their Necks, and seven Lords may hang them? When Ruffians shall be sent abroad to kill a Lord, by the power of the Court, if the Lord kill the Ruffian, he will die for it—If the Lords stand for your Liberties, and our Lives are in danger, I hope you will agree with the Lords.
Mr Dolben.] Notwithstanding all the compliments in the Paper, that dignify the Lords Reasons, you put a greater compliment upon the Lords in calling them so—We may suppose, as well as the Lords. They put it upon you, "That the Objection is of no force;" which is proving a negative. They seem to make their Rhetoric come in aid of their Logic. 'Tis a good rule to judge future intentions by past performances. What have the Lords done at any time for promoting the Interest of this House? I will give an Instance: This House passed a Bill for regulating Elections; the Lords thought it for the Interest of this House, and would not pass it; and that was their good intention to this House then. If this Amendment of the Lords be agreed to, from that moment we may date ourselves precarious. This will give the Lords such power to endanger the Government, that I cannot agree to it. They have a power of over-ruling the Courts of Westminster; and you, by this Clause, will complete the work, to overthrow the King's Prerogative, and establish their own.
Mr Finch.] I am not for insisting, if that be the Question, but rather for agreeing with the Lords, and think that the Lords Reasons have both the form and essence of Reasons. The Lords tell you, "'Tis a proper Clause they offer you, for the Bill says it." If the case be, where innocent mens Lives may be in danger, the argument is no more than, if there be inconveniences in the Tryals of Peers, as there are, they therefore ought to be remedied; and I submit, whether an innocent man's Life may not be in danger? The Copy of the Pannel is only applicable to the Commons—That asked you is only for the Lords to have the same Tryal, out of the Parliament, as in Parliament. It seems, by Dolben's argument, that the Government is not safe in Parliament, but out of Parliament very safe. In case of Commoners the Sheriff nominates the Jury, and by any person the Pannel may be quashed; but the Lord Steward summons the Lords, and no exception can be taken against any Lord. 'Tis in the power of any great man to destroy a Lord, for he is, by his Commission, to summon so many as he thinks fit, which may be but thirteen—and may not any innocent man's Life be in danger? The greater he is, the more Power he has, and may have seven Lords of his party; and it subjects some Lords to the will and pleasure of seven. It has been said, "If all the Peers be summoned, none will come, but only such as will acquit him, as his Allies, &c." But the Peers are finable, if they do not come, as any common Jury is. The danger is not at present, when we have a wife and good Prince upon the Throne, but there may be a Henry VI, governed by his Lords. I have not heard any Objection, that this weakens the Government, but "that all the Peers summoned will not come;" but they forget to tell you that they may be amerced. We do not find that Relations were so prevalent in Lord Stafford's Tryal. But one Howard, of six or seven that were his Judges, found him Not guilty (fn. 3); and will a Peer expose himself to contempt for this? There is no reason not to agree with the Lords, unless this; that, if we do not agree, the Bill may be lost. Let any man show me any proposition in the Bill that renders the Government unsafe. There is nothing in it, but to render an innocent man safe, and it does not weaken the Government. It makes it more hard to condemn an innocent man, and acquit a guilty.
Mr Attorney Treby.] I am against the Clause, though I am fond of the Bill. I hear it challenged, that this Clause does not weaken the Government. I think the Clause does weaken the Goverment. 'Tis the removing an ancient Land-mark, and an Article of Magna Charta. It is setting up a new Court for Tryal of Peers. We are to redress grievances here, and, as if the Lords have not privilege enough, to give them more!—We shall not have the thanks of those we represent. The grievance is rather at the bad execution of the Law, than the Law itself. By 33 of Henry VIII, all are to be tried by Freeholders, and yet, in spite of that Law, the Judges have declared otherwise. As soon as the Prisoner has his papers, if the Court take them away, (as in College's Case) he will have little benefit of the Copy of his Jury, or Indictment. 'Tis a great mistake alleged, "That it is in the power of a Lord Steward to summon as many as he pleases." By Law, no man but must be found by at least twenty, who must proceed on his Tral. 'Twas the Earls of Essex's and Southampton's Case. But 'tis said, "A Commoner may challenge, but a Peer not;" but this Bill helps them not, but lets in all that will come. They magnify themselves to give their Verdict seriatim. 'Twas once thought a great Privilege by the Lords, but now a Burden—'Tis objected, "That 'tis in the power of the King to make a Lord Steward, and he may be an ill man;" but, on the other side, does not the King make Sheriffs? And I know no reason but that the danger is in the one, as in the other. But to answer the Precedent of Henry IV— One of the most learned books of the Crown Law, which is Stanford's, says, "This is that judicium parium provided in Magna Charta"—This does show, that we are repealing one of the Articles of Magna Charta of the Laws of the Kingdom. In Parliament, the Lords are the same, and no House of Peers without the Commons; and 'tis not likely that there will be so much danger, when they are in being, of partiality—'Tis only those Lords that will voluntarily appear; and none but friends will appear, and may be ready to acquit their fellow-malefactor. The ground of the Clause—"That twelve Lords may conspire an unjust Verdict"—I suppose the Lords may conspire. It seems to me to provide an impunity to the Lords, and this is as near to it as can be. The Government may be ruined for want of Justice in the intervals of Parliament—We must suppose that a Lord Steward will impannel so many as to take a man away—What is a man the better, if he be hanged for one fort of Treason as well as another? 'Tis dangerous to the Government if they misbehave themselves. 'Tis altering the ancient Law of the Land, under which the Lords and we have prospered; and I would disagree.
Col. Granville.] I think the Lords tell you right; "That this Clause tends to the scope of the Bill, and that it preserves the Government to keep each part of it as free and independent as you can." The Lords must, upon all occasions, join with the Crown, when there is a design to debase the Privilege of the People. A Lord knows not how to speak his mind freely in Parliament, when twelve of the King's servants shall hang him, when he is out of these doors. Consider that the Judges that gave those corrupt Judgments were Durante bene placito, and did what the King commanded them. I hope, that, by this Bill, the Lords may act free when they come to give Judgment. All the Arguments incline you to this Clause; and, I think, there is only an obstinacy against it. (Excuse the expression.) I find Gentlemen that were against the whole Bill are against this Clause, and I would agree with the Lords.
Sir Christopher Musgrave.] I look upon the Reasons, on both sides, to be the lighter, and the best reserved for a free Conference. If Gentlemen are inclined to agree with the Lords, they may do it upon a free Conference with the Lords. I see, by one influence from Court, one Precedent of hardship. I can give more instances of hardship in Parliament than out of Parliament. In Lord Delamere's Tryal there were no Lords of that Jury, but what were actually in the King's service, and no reason to object hardship. There is but one Instance, 15 Edward III—The Lords obtained an Act, "That no Lord should be tried out of Parliament;" but it was so dangerous that it passed in Easter, and was repealed in October. This Law may be proper, but not in this conjuncture. We are not now to give a greater impunity than formerly. The Lords command your Words by Scandalum Magnatum, and your Estates by judicial authority, and I hope you will not make them bigger than the Crown, by this way of Tryal.
Sir Thomas Littleton.] I was against this Clause before, and so I am still. I observe, that there was a time when the Lords might have had this Bill, and at a time when the Government laid their hand upon them, and not so much justice then to be expected as now to be depended upon. A thing may be right at one time, and not at another. There is no pretence, or suspicion, under this Government; but why should not this Tryal be for Felony, as well as for Treason, as if they would shelter themselves against the Government in so dangerous a time as we are in?
Serjeant Montagu.] Littleton says, "Why not this for Felony, as well as Treason?" Appeals lie in Felony, but not in Treason, and therefore the Clause from the Lords is only relating to Treason.
[The Question being put, That this House doth insist upon disagreeing with the Lords in the Clause marked A, it passed in the Affirmative, 186 to 120; and a free Conference was desired.]