Grey's Debates of the House of Commons: Volume 2. Originally published by T. Becket and P. A. De Hondt, London, 1769.
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Monday, February 9.
Mr Cory, Member for Norwich, where Mr James Percy, (a Trunk-maker) sometime lived, delivers a Petition in his behalf, desiring liberty to prefer a Bill in Chancery against some Members, who pleading Privilege, it cannot be done without leave of the House, and if not done, may be the hazard of his cause, many of his witnesses being aged, who can make out his descent as heir to Henry, the eighth Earl of Northumberland (fn. 1), and cousin and next heir to Joceline, late Earl of Northumberland, deceased (fn. 2).
Mr Clarke, Agent to the Northumberland family.] Knows no person here concerned in this Petition but himself. He will not wave his Privilege, and has at this time a personal action against this Percy—The rise and proceedings of this man began in 1670. He waited on Lady Northumberland this summer in the West; she showed him a letter from my Lord Keeper, in the nature of a subpæna, from Percy, to answer a Bill against her in Chancery. He told my Lady, he would take care of it, and order an appearance. Coming to London, and meeting some Members at Guilford, they told him of a Petition to the King by this Percy, who pretended to be Earl of Northumberland; which was referred to the Masters of Request. It was a frivolous Petition, and the King thought Percy deserved to be whipped. Soon after, an appearance was given by Lady Northumberland, and a commission to examine witnesses in Northamptonshire, who testified that this Percy was son of a shepherd to Lord Vaux, born in Bedfordshire, and heard he was of kin to my Lord of Northumberland. The Bill was then dismissed with costs. Then Percy went into Northumberland, where, by the help of Counsel, he acquainted himself with Gentlemen, and brou ht one Colonel Eyre, once a fifth-monarchy-man, over to his interest; and some did caress him, out of favour to the family of the Percies, for the happy days the tenants had seen under them. He goes on the Northern Circuit and drops some declarations, and reports at London that he was acknowledged heir, and that the tenants had attorned to him; and then would put his claim of the title into the House of Lords. The elder Countess of Northumberland (fn. 3) put a Petition into the Lords House that he might be punished as an impostor. The Lords dealt justly, and at a Committee of Privilege he was to make out his claim, but did not do any thing suitable to his Petition. This Petition was in general terms; then he put another Petition, "That he was descended from Henry, the eighth Earl of Northumberland;" but not being able to make that but, a report was made; then he and his Counsel insisted on a day. Lady Northumberland proposed a fortnight. Percy stood upon a month, and had it, to make out his claim. He swore about forty witnesses, but not one to the purpose; only a Coachman and a Groom heard Lady Northumberland say, "I have lost a dear sister," meaning Sir Richard Percy's (fn. 4) wife, which Sir Richard was never married: Sir Thomas Hanmer knew him at Angiers, where he was buried, who never heard he was married, and he left his estate to pious uses; had he had children, they would have been impious uses. The pretended father of this man was shepherd to Lord Vaux—But he will now come to Privilege, and reserve the rest for another occasion—He never heard that a Bill in Chancery was preferred against him by this Percy, but only a personal action he brought against him for saying, "He was no Percy, but a bastard." He had the honour to be trusted by both the Earls of Northumberland, and is now seized in fee-simple of some of the Earl's estate. He stood bound, at the last Earl's death, for forty thousand pounds, and this estate is for his security, and he is the first man in all the bonds—Now if you will think fit that the Gentleman, that brought in the Petition, shall lay him down forty thousand pounds, he will wave his Privilege.
Sir Thomas Lee.] Has often heard Motions here that Privilege might be waved, but it is not yours to be disposed of. You send for a man in custody for breach of Privilege. A Member has his writ of Privilege at Law. Let the person break your Privilege, and then judge of it.
Sir Thomas Clarges.] Fears that in long Parliaments Privilege is a Grievance—It is natural for the rich to oppress the poor—The Countess of Northumberland, and others concerned, could not wave Privilege—Wishes some short Bill—For a thing so innocent as this, knows not why the Member should not wave his Privilege without troubling you—And a Bill that people might pay their just debts.
The Speaker.] It is not in the power of this House to take away Privilege settled by Law; but the Question now is, whether, a Bill depending in Chancery, the Petitioner's desiring examination of witnesses, which will relate to a Member's title, be a breach of Privilege—It is not for a Member of a greater Court to go to a lesser.
Mr Rigby.] In Chancery a man may have a commission to examine witnesses, in danger of death, de bene esse; if he have a right to examine witnesses, no breach of Privilege.
Serjeant Maynard.] What the Law gives a man you cannot take away without Law; examination of witnesses is a far greater Privilege than serving a subpæna; he must attend the office of Examiner: My right in many cases is a time (fn. 5); money owed me, and not by bond, and may be barred in point of claim—That of de bene esse is a farther examination of witnesses, if they live, but if ever it comes of use, as obliging as any other evidence in Chancery, though not in other Courts—This is of more consequence than only a bare Bill by subpæna.
Sir Philip Warwick.] When there is a just reason, would be glad that any Member would wave it of himself; had this come originally before you, another case; but he was condemned as an impostor by the Lords—The same Legislator that said, "the poor must not be oppressed by the rich," said è contra.
Colonel Birch.] Your honour is concerned in this, and much; it was never intended that Law should be contrary to reason; a man to lose his debt for non-claim, and Privilege pleaded seven years, a hard case—Let the man proceed, and the Member will or will not answer, and you may then haply do something to avoid this inconvenience.
Mr Wright, a Lawyer.] If witnesses are examined in town, no great attendance is required; if in the country, any Sollicitor may attend, and no inconvenience.
Sir Charles Harbord.] If no Member of this House; he need not come to you at all; you cannot hinder him.
Sir William Coventry.] Parliaments heretofore sat scarce so many days as they do now years. It has been well told you, "Privilege is right of Law," but thinks every man will concur not to extend it beyond Law; but thinks there is a great deal of difference betwixt a trust and a man's own personal right—Knows not what excess the thing may run into; it may happen, that four or five hundred Members may obstruct the whole course of Law of the nation—Knows not how it can touch the Member, being only in trust. This is so destructive a Privilege, that he knows not the end of it—Moves, that if the examination be only in perpetuam rei memoriam, the House will leave it to Percy.
Mr Sacheverell.] Would have no opinion at all given in the case; a judgment in it is of dangerous consequence —Would let the Petition lie, and if he stirs in it, then to consider it farther.
Sir Thomas Hanmer.] Gives the same account of Sir Richard Percy as before.
Sir Thomas Lee.] Moves to have the Debate of the matter of Privilege adjourned for a fortnight.
Sir Thomas Clarges.] Moves for Saturday next.
Mr Powle.] Your course is to judge of Privilege when broken, but not to make any general rule in this case—Henry VIII. in Ferrers's case, delivered by the Mace. Statute of Limitations thus answered, "any man may file an original, and so preserve his action, though he cannot proceed to action."
The Debate was adjourned for a fortnight (fn. 6).
A Bill was read [the second time] "to prevent illegal exacting money from the subject, on any pretence, without common consent in Parliament; all such impositions declared utterly illegal, and may refuse such payment: Judged a traitor, and to suffer accordingly, for levying of them, &c. Refusing to aid in attaching such persons as shall so levy money, to incur a Præmunire."
Sir Nicholas Pedley.] You have Magna Charta, and de Tallagio non concedendo, and the Petition of Right, but not with penalties. Is not against enforcing this with penalties, but thinks those too high; that of 25 Edw. III. is full for Treasons, and would not multiply Treasons—Is not in love with that Clause of "force upon them, that shall levy it by resistance." 10 Edw. I. that King had occasion to go into France, on a sudden, and there was raised, upon a tax on wool, somewhat more than was granted. Bohun and Bigott resisted the levying it by force. The next Parliament declared it "an illegal tax;" but, by intercession of Parliament, thro' the King's goodness, he pardoned them.
Mr Garroway.] Is for commitment of the Bill; what Pedley says against it makes most for it—Money was raised against the King, in the Rebellion, and hopes we may have power to resist that—He has seen a Book lately (Dr Parker's) that says, "They are notorious Rebels that shall refuse such a levy made by the King before God:" so by these mens mouths, out of the Pulpit, you can never be safe—He thinks the Clause not so bad as represented—Bohun and Bigott were glad to get pardon for resisting an illegal thing—When once our moneys may be illegally taken away, we need not sit here.
Sir Charles Harberd.] When persons in Pulpits tell us, "they must be paid," it is time to look about us—The penalties are too big.
Mr Crooke.] Treason is the highest penalty in our Law, and great caution ought to be in making a new one. There are customs of "levies" at Common Law—Corporations may levy—St Albans's case, when the term was there—Commit the Bill, for due consideration.
Mr Secretary Coventry.] The Bill, without doubt, tends to a good end; but both for the payment and manner of securing the thing, very extraordinary. One time there was a Debate here upon the penning when a Tax should end—It would be a hard matter to make a small Question about the Tax, Treason—"Levying war against the King's commission for raising money;" but suppose the King should be there in person (but believes our King will not) will you establish another Posse Comitatus to resist the Sheriff? Read your Bill of Militia, and let the Long Robe debate it.
Mr Sacheverell.] All these objections, from the Bar, are out of doors, if considered; it is barely declaratory of the Law, not for raising, but for the time longer than granted, by force of arms—If you will leave it for an army to do it, you may throw out the Bill.
Sir Robert Howard.] Wherever High Treason is enacted, it ought to be extremely clear. One comes to the Sheriff, and tells him, "Give me your Power;" how shall the Sheriff be satisfied, whether he ought to go? It may be Patents for Briefs, which raise money.
Sir William Coventry.] Here are doubts proposed, and he may have some. The greatest thing, for recommendation to the Committee, is, that the Sheriff, the Justice, and other officers, are made by the King, as well as the Guards; none ever intended in the Militia, but in case of rebellion, and to be assistants to legal officers; and should they come to be countenanced about "resistance in raising money," hopes it will not be.
Sir Thomas Lee.] The power of the County Militia may suppress Rebellion; in this Bill the Posse is raised for no more than to commit a person to jail, in order to tryal; so the Law remains as before; but the power of the County begins to be out of date: There was a time when the Act for the Customs was out of date, and yet they were levied; some Gentlemen can tell you when.
Mr Attorney Montagu.] The King's officers will be put upon difficulty; "money is levied" sometimes in caution, and, when the King appears to have no right, it is returned—By this Act, the officers of the Exchequer will be so timorous to "levy the money." upon specious records, though by Grants fetched back again, that none will be found to meddle.
Sir John Duncombe.] Would not, for prevention of an evil, make it more severe and intricate than before. Would put the Bill into knowing mens hands of the Law, and have one of them in the Chair at the Committee.
Sir Thomas Meres.] "By force of arms," the Bill says, and "illegally;" if an authority in Law to levy it, the man is safe—Would have every man's help; how often has Magna Charta been confirmed! The Petition of Right never yet; but this Bill will do part of it, and would have a clause for confirmation of the whole.
Mr Swynfin.] For the main points of the Bill there is the concurrence of the whole House; therefore is against going to a Grand Committee; you all agree in the sense —Where tedious objections may be met with at a private Committee, the Lawyers of the House, being of the Committee, may adjust them.
Sir Thomas Lee.] No use of a Grand Committee of the whole House, unless you see no more Bills before you than this—Is weary of sitting here, if so perpetually you have a Committee of the whole House, which takes up all the morning. All that come may have voices, and the Privy Council being Members of the Committee, the King's interest will be taken care of, and those of the Long Robe being there, all concerns will be taken care of.
[The Bill was ordered to be committed.]
At the Committee appointed for the said Bill. In the afternoon.
Mr Sacheverell.] The words, in this Bill, "Loan, Benevolence, Tax, Tallage," are the very words of the Petition of Right.
Mr Attorney Montagu.] Objected; the King's Briefs, by Letters Patent, are "levying money;" was answered, those are voluntary, and "no compulsion or force, in the levying them."
Mr Sawyer.] This Bill is in the nature of the Petition of Right.
Sir Robert Howard.] In making an exception to any particulars, by Proviso, you confirm strongly all not excepted; therefore, not that of "Briefs" to be within the Bill, by exception. Exceptio probat (confirmat) regulam.
The Committee made some few Amendments, and ordered a Report to be made of the Bill.
Tuesday, February 10.
[The House taking into consideration the contested Election for Castlerising,] Mr Pepys [one of the Candidates] was accused by some Members, of being a Papist, and having an altar and crucifix in his closet.
Mr Garroway.] Moves, that those Gentlemen that asserted against Pepys, may charge, in their own words, what they have to say.
Colonel Birch.] You are now in a parliamentary way; Pepys can say nothing, he was accused but by hearsay, unless some Gentlemen will repeat the words, and then Pepys may answer.
Sir William Coventry.] The charge was not told you of the Gentlemens knowledge, but by hearsay; therefore appoint a short day, that proofs may be here, and Pepys may answer.
Sir John Birkenhead.] As the Apostle Paul said, "he was beaten publicly," so let Pepys be charged publicly.
The Speaker.] The thing that was said, was personal accusation against Pepys, and no way relative to his Election. The business is proper to be enquired into after the Election is over.
Sir Richard Temple.] By Order, always a reflection upon a Member must be cleared, before you proceed; for the thing will have an influence upon your judgments, which may be used the better, when all objections are cleared—Your Books are full of it—Adjourn it to a short day, and when Pepys stands rectus in curiâ, then judge of it, in God's name—If the Member be absent, and reflections pass upon him, it is your duty, Mr Speaker, to stop the Debate till the Member be present, and the things set down in writing.
Sir William Coventry.] Such an aspersion upon a man, as to "be a Papist," and yet "to take the Communion," is such a thing as no man can defend his cause, let it light as it will, and would, if proved, give his vote to turn him out.
The Speaker told Sir Robert Thomas, by Order of the House] It is expected that you shall make that appear which you charged Pepys with.
Sir Robert Thomas.] Is ready to make good what he said the other day.
Sir Thomas Lee.] Would not have any words read, that were not collected at that time; it may be an ill precedent—The Speaker proffering the matter said by Thomas.
Sir Richard Temple.] The course of Parliament is, that you call upon the persons who made the information in your Member's absence, to do it now in his presence.
Sir Robert Thomas.] Appeals, that it is not fair for the Speaker to collect his words, without Order, and requires reparation—Was credibly informed, that Pepys had an altar, and crucifix, in his house, and should say, "our Religion came out of Henry the eighth's codpiece" —He made a ridicule of Lord Brereton, and the rest of the Commissioners of Accounts, at the Council-Table, and of your Act of Accounts.
The Speaker replied.] It is his duty, when information is given against a person, upon an adjourned Debate, to state it.
Sir Thomas Meres.] No man is charged, but words are written down and agreed. Now you have heard Thomas, proceed.
The Speaker.] If any thing falls from a Member, it is as Meres says; but upon an adjourned Debate, his duty is to acquaint the House with the matter.
Sir Robert Thomas] Is ready to produce persons, who informed him, that they did see "an altar, and a crucifix" upon it, in Pepys's House.
Sir Trevor Williams.] He affronted Lord Brereton at the Council Table, who spoke for the Commissioners of Accounts.
Mr Garroway.] If your Member said any thing about "breaking his wife's heart, because she would not turn Papist," it is upon report; but the "subsigning Warrants for the delivery away of anchors and cables to the French," is an abuse to the King, when the Commissioners of the Admiralty never were acquainted with it—If he be an accomptant for four or five hundred thousand pounds, and may have that put off, he may well turn your Commissioners to ridicule.
Sir John Ernly.] Hears it said, "that Pepys signed an order to deliver stores to the French." Knows that such an order did come to us, subscribed by him, "that none should be delivered that were useful for the King's service;" though, notwithstanding his letter, they were delivered.
Mr Waller.] If the Gentleman that accused Pepys will quit it, then go on with his Election—Would make a difference betwixt "Common Fame" and "Reproach;" or if any persons would stand up here, and say, "persons would make it good;"—but does not hear any man say so in this House, or can produce them that can—In all States, as accusations are allowed, reproaches are discountenanced; "a man said it, a bird sings it." The Florentine history tells us, that that Commonwealth was ruined for want of accusations, where persons might justify themselves; (audacter criminare, aliquid adhærebit) otherwise they are reproaches, the people reviling them as they went abroad. For reproaches, a screwed gun ends the matter. Formerly there were duels in France to the destruction of families; now they are destroyed: all differences are ended by the Marshals of France, who sit at the Marble Table at Paris, in the Palais.
Sir Robert Thomas.] Can prove the "crucifix and altar" in Pepys's house. They who prove the rest are great persons, and out of his power, without your assistance—several persons in this House have been informed the same, as well as himself.
Sir William Coventry.] Thomas tells you, "he desires the assistance of the House to bring these persons to prove the accusation, being else out of his power. If a general accusation, "that once in Pepys's life-time he said, that of Henry the eighth's codpiece," it is hard for him to get evidence to clear himself—If Pepys's denial be not taken for a full answer, is then for Pepys to answer it.
Mr Pepys.] Does flatly deny " a crucifix in his house," from top to bottom, and would have persons produced that will prove it.
Mr Secretary Coventry.] There is great reason for the assistance of the House, to get evidence; Colonel Langford had the command of the Tower, who, not complying with the Long Parliament, was removed for Sir John Byron, who was accused of being a Papist; two women offering to take their oaths, they saw him upon his knees, praying to an image. Sir John Byron was at his devotion, and his perriwig upon a block, standing upon the table, not then so frequently worn as now; and this was all the ground of his accusation.
Sir Thomas Littleton.] Thinks the comparison very unequal, and it might have been spared, betwixt two silly women, and persons of great quality.
Mr Secretary Coventry.] Whoever is a Commoner, and a witness, is as good testimony as a great man.
Sir Thomas Lee.] Applying matters of Religion to "perriwigs," is a kind of ridicule on Religion.
Sir William Coventry.] Thanks God, we are not yet so well acquainted with "crucifixes," and so might be easily mistaken—It is time now to require Thomas to name those persons, that the House may assist him to reach their evidence.
Sir Robert Thomas.] Some Members have told you the same that he has done, and he would not be put upon naming his authors, till things come to proof.
The Speaker.] If witnesses must be sent for, by authority of the House, they must be named.
Sir Robert Howard.] If there be an impediment, that he cannot get his evidence, then he must have assistance from you.
Sir Thomas Lee.] When you know who they are, then take your way to bring them to evidence.
Sir Thomas Meres.] Would have them named by Order.
Ordered, by a Question, That all such Members as have given in the information against Mr Pepys, do name their authors.
Sir Robert Thomas.] He cannot avoid it now, because he has your commands for it. Lord Shaftesbury informed him, and he is informed Sir John Banks saw it also.
Mr James Herbert.] Lord Shaftesbury did say, "He saw an altar and crucifix in Mr Pepys's closet."
Sir William Coventry.] If no testimony be offered by Lord Shaftesbury, Banks you may send for, being a Commoner; but Lord Shaftesbury must have leave, and, in this case, you order a Committee to attend Lord Shaftesbury's attestation, as in the case of Lord Bristol.
Lord St John.] Had his information also from Lord Shaftesbury, who told it likewise to Sir Thomas Littleton, then present.
Sir Thomas Littleton.] Is not named in your Order, and not obliged to answer.
Sir William Coventry.] If Lord Shaftesbury will avow the thing, he believes Mr Pepys's Session not very long in this House.
Sir Thomas Littleton.] Being required by many to declare his knowledge, (forty men are more than one in evidence, being of the same honesty, and that no man can be compelled,) answered, Sir Robert Thomas was Ordered to do it, before he informed the House—Would be treated by that rule every Gentleman ought to be; such an Order would be very indecent, and would not be put upon it without your Order, as Sir Robert Thomas was—Would rather suffer any censure.
Mr James Herbert.] Littleton put him upon it, and would now slip his neck out of the collar.
Mr. Garroway.] Does commend, and would preserve the modesty of any Gentleman; but what can be added by Littleton? You have three witnesses in the case against Pepys, enough to take any man's life away—To put a man upon such a violence upon himself, where neither treason nor any great crime is concerned, is very hard, and would not have Littleton farther pressed.
Mr Powle.] It is an obligation upon a man, when the Commonwealth is concerned; but as to private discourses that pass under an obligation, hopes you will not put this violence and force upon him, having sufficient light in the business already.
Sir Thomas Meres.] It is not desired because need of more evidence, but to be on an equal foot with other Gentlemen that have informed you; but he, it may be, is "under an obligation," that other Gentlemen are not.
Sir Robert Howard.] Littleton said not what he would do, but what he would suffer, rather than inform the thing without contempt of the House.
A Committee was ordered to attend Lord Shaftesbury, to be informed whether his Lordship has ever seen an altar and a crucifix in Mr Pepys's house.
Ordered, That Sir John Banks's evidence be taken at the Bar, and that he have notice to appear.
Sir William Coventry.] Because Lord Shaftesbury is a Peer, his evidence, reported by a Committee, is the same with evidence at the Bar. Would have Pepys go along with the Committee to hear Lord Shaftesbury's evidence, as we shall at the Bar.
Mr Garroway.] If the Question should be asked by the Committee, "My Lord, what is a crucifix and an altar, whether consecrated or not?" differences may arise in the Committee, and so you will have no Report—As for Mr Pepys's going, would not have spies upon the Committee who may misrepresent things—Would have this Order in writing.
Sir William Coventry.] Would not have it lie upon your Committee that they have not asked Questions, for you are to vindicate, as well as accuse, your Member; and if he goes not, you will not have all means proper by asking Questions, to give you light.
Wednesday, February 11.
[His Majesty in a Speech, which was reported by the Speaker, acquainted the two Houses, "That he had pursued their advice, and had made a speedy, honourable, and, he hoped, lasting Peace, which was already signed." (fn. 7)
He assured the House of Commons, "That, before they had addressed him about disbanding the forces, he had given orders for doing of it, as soon as he should be sure of the Peace; and would reduce them to a less number than they were in 1663."
He added, "That he would give directions for the forces that came out of Ireland to march thither; but as the forces were lessened at land, desired their assistance to enable him to build more great ships."]
Sir Henry Ford.] This House has great obligation from the King's Speech, and moves, "that our humble Thanks may be sent to his Majesty."
[Which was agreed to by the House.]
A Message from the Lords, "desiring the concurrence of the House, in returning his Majesty humble Thanks for his gracious Speech, and concluding a Peace, according to their advice and desire."
It was answered, at a Conference, "That this House cannot concur with their Lordships, as part of the King's Speech relates to a particular Address of their own about "disbanding."
In a Grand Committee on Grievances.
Mr Sacheverell.] Finds in the Laws of the Union, that this late Act of the Militia of Scotland subverts all those Laws, and may be a terror to the subject here, and would have it removed.
Sir Thomas Lee.] Reads the Clause in the Act of the Union of the two kingdoms, 4 James,—"all men be ready in arms against England;" that Law is expressly repealed; and is not the making a new Law to the same effect, and stronger, a just cause of exception?
Sir Thomas Clarges.] This is matter of as great weight as can come before you. This Law is of strange consequence; "two thousand horse, and twenty thousand foot, to march where the King's honour and interest is concerned"—Contrary to the course of the Militia of that kingdom; all betwixt sixty and sixteen were to be in arms "for defence of the kingdom"—They have in Scotland a great many followers, who, by tenure, are implicitly bound to go wherever their Lords command them; this new Law appoints "how to be raised, by what rates of estates, and to march either into England, Scotland, or Ireland."—Moves for a Committee to consider of the Scotch Laws in this case, and to make you a Report how they stand.
[A Committee was appointed accordingly.]
On some Amendments being proposed to the Habeas Corpus Bill, and which were farther debated Feb. 17. (fn. 8)
Mr Cheney.] Though the Statute of Suggestions be obsolete, yet it is still in force. 33 Edward III. chap. 18. "No man imprisoned, &c."
Mr Sacheverell.] A man cannot be arrested immediately by the King's warrant, because the subject can have no remedy against the King.
Mr Secretary Coventry.] Suppose war here, and a correspondency; and suppose the King receives a letter, "that he is betrayed by his Secretary," and he imprisons him; if he must have a deliverance, you can never have any intelligence.
Sir Thomas Lee.] If he be commanded to commit him, let him do it, without the King's hand, but not make use of it.
Sir Thomas Clarges.] The Long Robe told you, "many things were unlawful, yet justified by the necessity." Making a man's house a castle; the Lord Chief Justice to give an oath what ground and reason there is for it. A man may be kept up till evidence does come, if it be beyond sea.
[Feb. 12, omitted.]
Friday, February 13.
[A Bill for settling the Fees and Powers in the Patents of Judges, was read the second time.] The Judges to have their Grants quam diu se bene gesserint, and not durante bene placito.
Mr Secretary Coventry.] This Bill is of great consequence. We all acknowledge but one King in England, and we are going to make Judges greater than the King, whom he cannot punish—We have had Ship-money by the Judges opinion; let us take heed of their judgment—It is not for the King's service, nor for your honour.
Sir Thomas Lee.] Upon suggestions, Judges are easily sent for, and turned out, for doing right (being not near the King's person.) When the Judge is safe for doing right, he will do the better; no danger of not giving a right judgment—If all the Judges be corrupt, the Parliament will judge them.
Mr Attorney North.] This Law is of as great moment as can be; there was never less interposition in the Courts at Westminster than at this time; since they are durante bene placito, and no suspicion of influence upon them. Consider how fearful to go before a Judge —They will consider their honour; here is no appeal to the Lords in matter of fact, upon a verdict, that he has heard of—Suppose, in the Circuits, Judges should carry themselves with a high hand, and with distaste to the Gentlemen, no Address to the King can remedy it, as this Bill is; the King might else remove them.
Sir John Monson.] Believes that Judges may be bad. you are told of tryal by other Judges. Is sorry to hear, that, if one be bad, all the rest may be so. By the same reason, if Judges may be so, other things may be so.
Colonel Birch.] Is glad he hears of no more objections than from the Attorney; if more, you should have heard of them, sure—If the Judges judge their own misdeameanor, as the Bill is, and the Jury the fact, no Judge, against his own interest, will carry himself ill to the Gentlemen of the country—Though we have no reason to misdoubt the King, yet we tremble to think what we may come under (fn. 9). Will say no more.
Mr Sawyer.] Quam diu se bene gesserint, &c. "Whether the thing done or not done," is tried by the Jury, but "whether it amounts to a forfeiture," is tried before the Judges. A man that has arbitrary power may do ill, but this is a mere deliberative argument. Grants of their places have been practised both ways, and which is best, it is hard to determine; but a regard to justice, and the good of the whole kingdom, is the best way to attain your end. If you will go upon the best way of grant,—more certainty. "Overawing the Gentlemen in the country" is no argument, for it must be all according to Law, or else complainable above—It is a deliberative argument, and he would commit it.
Mr Boscawen.] You are not only in this to consider times present, but times past; we have known they have been arbitrary: Tho' Judges, yet they are but men, and it concerns the Parliament to remove them from temptations—If removed again when once a Judge, he loses his practice, and it puts him upon hardships—As for their fines upon Justices would have them with Appeals, and not so arbitrary as they are now.
Serjeant Seys.] The Bill imports "Judges to have their Patents quam diu se bene gesserint, that is, so long as they are honest men. Judgments are reverted from one bench to another; then, by Writ of Error, to the House of Lords—Thinks us not under any danger; the King brings his scire facias, and the Judge meets with his match, and those Judges will appoint Juries indifferent—Has known Judges removed to higher Courts, and lesser profits, and some removed quite. If a man denies to be a Judge, knows not how answerable. Some have been turned out of employment and lost all their practice—Would commit it.
Sir John Duncombe.] Both by the Long Robe and others, hears no remedy proposed; for recourse to Parlia ment the thing lies bleak and open; greater numbers than twelve men may be corrupted, and I must stay till a Parliament comes; in the interim, I complain to the King. In a scire facias the Judge must have the privilege of his own Court for tryal; had the Jury the courage to do justice, yet you are not secure of the Judges; never was an age happier than we; no body complains of the Judges: Would you not have easier remedy than out of Parliament for this? How by this are men invited to complaints by this Act! You yourselves will be the first men that will suffer by this. Again, they must have the King's allowance for life, suppose they be insufficient; that is male se gerere as well as the other—When you suffer nothing, you are well till you complain.
Sir Thomas Clarges.] Duncombe ends his discourse in praising the condition we are under; but this is the time to take care against our coming under a bad Prince. For the first eight or nine years after the King came in, the Judges grants were quam diu bene, &c. but after the raising a standing army, their Patents ran durante bene placito. Still he apprehends the Marian days, but the demise of the King is the danger. Another remedy may be [to have] Gentlemen added to the commission of Oyer and Terminer. Judges have been sued in civil causes, and remedies for that; the Law is plain in it—Would farther add to this Bill, "that all offices might continue for three months after the demise of the King"—Commitment of the Bill may obviate all the inconveniences objected.
Sir Thomas Meres.] It has been objected, "that the Judges may not prove so discreet, for magistratus indicat virum, and not fit"—Answers, special regard ought to be who are made Judges next—If the Judge loses his parts, or proves lunatic, such power in the Law that he may be suspended.
Sir John Trevor.] Would commit the Bill upon the Debate.
Sir Nicholas Pedley.] If, by the act of God, he have lunacy, or be superannuated, he may have a Writ of Ease, and another Judge be made, and he enjoy his salary nevertheless; the King may grant a special commission of Oyer and Terminer to such of greatest esteem in the country.
Sir Robert Howard.] Will propose some things, which, if not taken care of, will be the greatest injustice; naturally judged, if the Judge be "at pleasure," durante bene placito, his oath will oblige him more than awe—Has seen Gentlemen in the country of great worth checked and chid, and threatened to be fined, and has been one of those at dinner, and the Judge dined not; and he came sooner to the Court than expected, and fined every man for non-attendance—The Sheriff was fined for no cause—Would you encourage this arbitrary peevishness when they are old? Would you encourage them in this, and punish us too? If the Grants be durante bene placito, there is not so much occasion of complaint as by quam diu, &c. It is taken for Law, that the Judge's tryal is proper in the Court where the misdemeanor was committed—Makes this use of it, that, as you will fortify justice, so fortify places of justice, who get nothing by the employment, and are fined at the pleasure of the Judge.
Lord Cornbury.] Howard instances Lord Chief Justice Keeling's case, which, he says, was quam diu, &c.
Lord St. John.] Better for a Justice to abide a reprimand, than to have the other inconveniences mentioned.
Mr Waller.] Fifty years ago this came in question; the House of Commons ever favoured quam diu, &c. At that time there was a Star-chamber, when the Judges were punished not among themselves, as Middlesex, &c. If Judges have favoured themselves for one thousand years, they ever did, and ever will—Upon an attaint on a Jury there is villainous judgment, but never found by another Jury; therefore recommends to the Committee some other way of tryal than by themselves—Lord St. John said, it was no great matter their fining Justices; the only arbitrary power was fining one hundred pounds, it may be, for a wry look, and no remedy; this makes them Judges of Israel for life. Aristotle, in his Politics, defines several Powers; true Sovereign Power is of "War and Peace, calling the Estates, making Magistrates," &c. Would know what Magistrates go out at the King's coming in; he hears the Lord Mayor does not—Would consider these things at a Committee.
Sir John Hanmer.] Would have a Clause against "buying their places."
Sir Richard Temple.] Finds an exception against the Bill, "that the Judges may arbitrarily fine, their grants being, &c." but the party may traverse the fine, if immoderate. This Court of Parliament is the proper Court to keep them, and all officers, in order—The Judges declared an act treason, as said, but the Duke of Norfolk so awed them they durst do no other; their places being durante bene placito, &c.—Would have these sorts of men have all the encouragements to do their duty faithfully.
Sir Robert Carr.] Has attended to hear complaints, and finds but two cases instanced.
Sir Charles Harbord.] Has had contests with the Judges formerly—Is against making their places for life.
Mr Waller.] Would have a coalition of that Bill of Sheriffs with this. Dying Judges have told him of corruption in under-officers; the Judges sell those offices, which is the ruin of the Common Law. They say, they cannot be angry with the Clerks of the Assizes, because they pay for their places—Moves to have these things recommended to the Committee—The Clerk of Assizes is a ministerial office, and dangerous to be sold.
Sir Thomas Lee.] As for "selling of places," believes some are afraid; this Bill does that, being already restrained in it, and they are therefore against it.
Sir Richard Temple.] Part of the instructions is, "that the Judges shall not fine above forty shillings, unless the offence be found by indictment."
Sir Winston Churchill.] Fears, that instead of one King, by this Bill, we shall be under thirteen; prays, that in consideration of abuses, the instructions may be for special remedies—As the Bill runs, every little Attorney will be a tyrant, and a man may be tossed from Court to Court, till it comes into the Judges Court, and if officers and Judges be not very upright, the privilege of that Court may be abused—It is unequal that the Judge should have the privilege in his own Court, and a man have none—He has seen and felt the experience.
Colonel Birch.] What is offered is against the Bill, as much as can be, under Heaven—If not to knock it down, it puts as much weight upon it as will pull it down—Desires to have these great and good things in Bills by themselves, and this without clogs.
[The Bill was committed.]
Sir William Coventry reports from the Committee ordered to attend Lord Shaftesbury in Mr Pepys's accusation, "That, according to command, they attended Lord Shaftesbury, to know of his Lordship what he could say about an "altar and crucifix" in Mr Pepys's house: He was unwilling to go without his Collegues with him. They went to the Earl's house to desire to know the time of their attendance upon him at his own house, but my Lord would then dispatch them; which he did, without much premeditation in the thing. My Lord showed so much his inclination to satisfy them, that they could not decline it then; and because they had not an opportunity to set down in writing what my Lord said, they came into the house, and did it upon the table, and set it thus down in substance: "The Earl of Shaftesbury denies he ever saw "an altar" in Mr Pepys's house or lodgings. "As to the crucifix," he says, he had some imperfect memory, before the Navy Office was burnt, of seeing somewhat, which he conceived to be a crucifix, but does not remember whether it was painted or carved, and, that [his memory is so very imperfect in it, that if he were] upon his oath, he could give no farther testimony."
Mr Garroway.] Agrees to the Report, only "imperfect memory, and could give no farther testimony to a Jury." The Committee had great labour to collect it. He said they were interlocutory things, and thought that no account would be called of them—"Whether carved or painted?" The posture of the room to be an inducement to recollect his memory, was not urged.
Lord Obrien.] Since they were with Lord Shaftesbury, he has met with a letter to a Member of the House, Sir Thomas Meres.
Sir Thomas Meres.] The next morning Lord Shaftesbury's Gentleman came with a letter, "That his memory was lost in the matter, being long since, and was sorry he could not give an evidence so clear as might be expected."
The letter was to this effect: "He never designed to be a witness against any thing he heard, or saw, at Mr Pepys's—He saw no altar." There is nothing in the letter to contradict the Report.
Mr Secretary Coventry.] Believes there are a great many more Catholics than think themselves so, if having a crucifix will make one.
The business was then no farther proceeded in, Sir John Banks being not heard, who was ordered to attend on Monday next.