Grey's Debates of the House of Commons: Volume 6. Originally published by T. Becket and P. A. De Hondt, London, 1769.
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Monday, December 2.
The former Debate resumed.
Sir Robert Howard.] I find no cause for the opinion, that this Bill was against the King's Prerogative. In one Bill of the Militia it says, "The Militia shall be raised and mustered for so many days;" which appeals to the former Act of the Militia; "So many days the muster shall be, and no longer." Now whether is the King's Prerogative more confined in saying, "Thus long, and no longer," or, "Thus short, and no shorter" a time? Now whether the Prerogative is more confined which says, "I cannot make it less," or, "I cannot make it more," &c. I leave you to judge. If you sit down, and say nothing to this, you tacitly acquiesce, that, by this Bill, you have invaded the King's Prerogative. Did not the King send you a Message, by the Secretary, about Bedlow's Pardon, &c. "that he would think of it; Le Roi s'avisera?" If you have not done amiss, pray assert what you have done; if you have, then refer it to some Gentlemen to enquire what you have done by the former Bill.
Sir Richard Temple.] If "Le Roi s'avisera" be not a negative to a Bill, I know not what is a negative. You have tryed this, both by Bill and Address, and neither has done. The Lords answered you, it was better to be done by a Bill. I hear since, that the Lords have made an Address to the King to improve it for the present, "where the fourteen days have not been up, that the King please to call them together."We were unfortunate in the Bill, not to apprehend the unhappy occasion of the King's rejecting it. We could not find it when we reviewed the Bill. I will not dispute the King's Prerogative in this case. The matter is tender, and it is reason; but the question is, what is to be done. It is taken for granted, that this can be done only by Bill; and the House will not address the King against Law, for any thing. If the King had given his negative to the Bill, without reasons—But the King has differenced it from all other denials of a Bill. It is not without instance, that Bills have been brought in, the same Session, when the manner, and not the matter, has been excepted against. And there may now be such a Bill brought in, and I have precedents for it.
Mr Sacheverell.] I cannot agree that any precedent has been, since 2 Hen. V. that ever a new Bill was brought in of the same matter rejected the same Session of Parliament. That is plain, in the Act made at the Parliament held at Leicester, where they declare "That it is the undoubted right of the King to give his Assent or Negative to Bills." Now I am up, I will tell you my thoughts clear another way; that there are Gentlemen, above this House, near the King. If this Bill has intrenched upon the Prerogative of the Ministers, it is more than I know. You made a Law to keep Papists out of office; and yet they were dispensed with. It is in vain to offer any Bills, unless the King will take the advice of Parliament. Edw. I. It was no invasion, in his time, of the King's Prerogative, to say "his Ministers were nocumenta reipublicæ Angliæ." If you lay it not before the King, that he is advised by Ministers against his own interest and yours,—till you do that, all you do is in vain. Let us once know, whether the King will once more hearken to you, or his Ministers; and that, whilst he hearkens to these men, and not to his Parliament, we must sit down and bewail our misfortunes.
Mr Williams.] The Prerogative is no more incroached upon in this Bill, than in those Acts of the Militia already made. Did not the Act the King passed on Saturday impose upon the Prerogative more than this? Cannot the King call what Lords he pleases into the House of Peers? And yet he passed that Act, to exclude his own power, that they cannot sit without the Oaths and Test. I must submit to the King in it; but from the Councils your Laws are violated, and all from them. This rejected Bill was so much for the security of the King—And for any Minister to advise the King not to pass it!—His head is too little to be a sacrifice for the thing. This Bill was for the safety of the Kingdom; and to tell us of Prerogative, when the Kingdom is in danger! The Counsel that stopped this Bill, will stop all others. And if you do not examine who gave this Counsel, you do nothing.
Sir Thomas Meres.] This being our condition, as has been said, I would state our condition to the King, in which we stand. Neither the King's Council, nor Privy Council, do conceive the thing as we do. I second, therefore, the Motion, "That the House will represent to the King the dangerous condition the Nation is in."
Sir William Hickman.] Either what is proposed from this House, for remedy of our dangers, comes to nothing, or the execution of it is so slow that it comes to nothing. I have not heard of any Directions or Commissions to the Lord-Lieutenants to give the Oaths yet. When the Army, in time of Rebellion, went to prayer, then there was some damnable thing going forward. I hear that, all over Christendom, the Jesuits have a fast at this time, this very day. I move as before.
Mr Bennet.] There are some, that are still insinuating into the King, that he is securer by those about him than the Militia, than English Freeholders. Popery can never come in, but by Protestant hands, such as go to church; as Irishmen, and transplanted kinsmen to Marshals of France. These are your men to secure the King! Some of them have been rebels in Ireland. They say, "That the Militia are boys with feathers in their caps; and they are for a Commonwealth. They must have such as have been abroad in France, or at the siege of Maestricht." But it will never be well, till the Militia, Men of Estates, guard the King's Person, and till the King believes himself safer thus. I speak not of Secretaries signing Commissions to Papists, with Dispensations from the Oaths and Tests (fn. 1); they hold their Places by those things; yet still they are good Protestants! Till we can so lay the case before the King, and till he believes the Militia to be his best guard, and trusts himself in those hands; till the King believes us, we shall do no good: And till we remove Wife, Friend, Brother, and Sister—till then, you'll never do good.
Lord Cavendish.] I desire, "That an Address may be made to the King, to represent the Dangers of the Nation." And then consider, whether you will refer it to a private Committee, or a Committee of the whole House.
Sir Henry Capel.] I cannot differ from those Gentlemen for the Question, "to represent the present Danger of the Nation to the King." But we have made so many Addresses, and have had such Answers, that we have no encouragement to proceed any farther. It is a notable observation, and I desire to enlarge upon it, that in the disbanding the Army, the Parliament and the King agreed it by a Law, and yet they are kept up by some other persons. This is open to every man's eyes. Till this Army be disbanded, we can have no farther hopes. Therefore let us go speedily on for disbanding the Army, and I hope we shall have the concurrence of the King in it.
Sir John Ernly.] I agree "That the Freeholders of England are the safest Guard for the Nation." And I am sorry we have lost the hopes of the Bill for raising them, in this time of danger. But I conceive there was no other hindrance to it, than what the King told you. There was a time when the Scotch Army was to be disbanded, and the Parliament borrowed money of the City to do it, and got the Act of perpetuity of their sitting, for their security. If that be left out of the Bill, that the King objected against, I believe yet the King will pass it. I say this only "for the Representation of the State of the Nation," moved for. I know not how he will be sensible of it farther. He knows it all already. If you go on with the Militia, &c. I doubt not but the King will pass it. As for the Army, the King is as forward to have it disbanded as you are. It is said, "there are several Papists in it," and it may be so; but several ways have been used to purge the Army. Most of the Officers are good Freeholders; and no man can think them fit to go into Flanders. If that Army had not been, no part of Flanders had been left. They did good service there. And now the ratification of the Peace is come, there is no farther use of them. And I concur to their disbanding.
Sir John Birkenhead told a story of the beginning of the Rebellion in 1641, and the Militia Ordinance; and added, "That this Representation of the State of the Nation looked like that time."
Mr Williams.] Either the Gentleman that moved the Representation of the State of the Nation, or Birkenhead, ought to be reprimanded.
Whereupon several called Birkenhead to the Bar.
Sir Nicholas Carew.] Now we are representing the State of the Nation, to tell us of 1641! - I believe that Birkenhead is a favourer of Popery; and I would have him called to the Bar.
Mr Bennet.] Though we are told of 1641, and called Fanatics at Whitehall, I never thought to have heard it here. I would call him to the Bar.
Mr Secretary Coventry.] We are gone beyond Order. Whenever we question any Member's words, they are to be written down. I think he intended no reflection upon the House.
Sir Robert Sawyer.] If there be any blame, it was in the Chair. The Speaker should have done his duty, by interrupting Birkenhead.
The Speaker.] If there was any thing amiss, in what Birkenhead said, and I did not reprimand him for it, pray lay it upon my account.
Sir Thomas Meres.] He compared our apprehension of the present danger to Lunsford and his footman, and Lord Digby's coach and horses, in 1641; and our representing the State of the Nation, to the Remonstrance in 1641, by the Long Parliament. Still to be told thus of 1641 is hot; and it was as high what was said by another Gentleman, "That Birkenhead was a favourer of Popery."
Sir Thomas Clarges.] I will only say, I was one of those happy or unhappy men, engaged in the King's Army, as long as any Army was. We then said, "they were aspersions of Popery that were cast upon the Ministry, &c." But now Popery is plainly coming in, more than in 1641; since we have a person so near the Crown, that has been perverted. These things are still from the unhappy Representations betwixt the King and Parliament. If the King be not happy and confident in this Parliament, he will never be in any. Those that make a difference, in this matter, are no friends to the Crown. Those who intercept the King's Graces to his People, will still improve them upon us behind our backs, now they do so before our faces. I know not how they come to be thus illuminated. Was not the Act of the Militia the King's Authority, and the Lord-Lieutenants and Deputies approved by the King? It is necessary to clear ourselves, and make some Representation of our actions to the King. I know not what testimony of your loyalty you can give to the King, more than you have done. Therefore I am for such a Representation to the King, and leave the success of it to God.
Sir Edward Dering.] The Representation you are about to make, concerning disbanding the Army, and the Danger of Popery, I am for. "For Popery," that is done already; but "for a Representation of the State of the Nation" is a large field, and a way not much trodden; and it must go up to the Lords, and take up time. The present Danger is not so much from Principles of Government, as from Popery and the Army. It is a wonderful thing that the disbanding of the Army should not be done, when an Act was solemnly passed for that purpose; but more a wonder now, when the King has invited us to do it, and we desire it: And yet to be let fall! I would therefore go directly to these two things, the Army and Popery. You have two Bills of Popery before you, and you are gone forward in that of disbanding the Army, which, by former precedents, may be effectual. I move that the method of disbanding the Army may be reported.
Resolved, That an humble Address be made to his Majesty, containing a Representation of the present State and Dangers of the Nation.
Mr Powle.] Since you have resolved to go upon the Representation, I would do it with all solemnity. It is too great a charge for a private Committee to draw up. I move that we may go into a Committee of the whole House, and I offer one Head of it, viz. "To represent the Misrepresentation of our Proceedings to the King." Let us look back upon the sharp Messages we have had, &c. contrary to the King's nature, by those Misrepresentations. If you take these things, and swallow them down, you will be contemptible in the eyes of the world. Submitting to these things, is a confession, that the King is in the right, and you in the wrong. I move, therefore, that that may be the first Head of the Address.
Mr Bennet.] I would have it part of the Representation, how the King's Ministers have dealt with him; and then the King will either take good ones, or we shall have power to turn the bad ones out.
Mr Pepys of Cambridge.] That which is proposed is no new thing; it is beyond 1641. Undermining the Great Council of Lords and Commons, retaining Forces up contrary to Law, you'll read it against Magna Charta. The Spencers, father and son, &c. Empson and Dudley, &c.
Colonel Birch.] How this comes to pass, I know not, that men should hint at 1641 and 1642. Coleman's Letters give us clear hints for our apprehensions. And for the clearness of the proceeding, I would go into a Committee of the whole House; and I hope the King will have clearly satisfaction from us.
Lord Cavendish.] If we reflect on what has been done for seven years last past, when the Ministers could not impose upon the House for Money, have not they represented to the King, that we were going into 1641, and a Commonwealth? From whence else come all these Prorogations, but from these Counsellors? And as long as it is the interest of those about the King to keep things off, it will always be so.
Sir Philip Warwick.] If you have no persons to accuse, the King is in his own choice to reply to you. Therefore consider how you will proceed. Could I fix the Miscarriages upon any person, I would; but if I cannot distinguish persons from things, I know not how to give my Vote.
Mr Finch.] When we parted on Saturday, the Debate was of great importance. If we go on at this rate, we cannot believe ourselves. We are unfortunate not to go on in that Debate. If we do believe there is a Plot, and that it is still carrying on, and men serve in arms in several counties, I see nothing that can be of greater importance, than securing ourselves from Popery. And nothing can more prevent the dangers we apprehend, than the establishment of the Militia. It seems, by the Debate, that the Dangers are not so great to-day, as they were on Saturday. And now we are arraigning the Government for those Dangers, before we prevent them. The King told you, "he is sensible of your care of him and our Danger, &c." and thanked us. Whether the Government be good, or bad, is not now a proper time to determine; our present Danger is Popery, and proceed to particular instances, how those Dangers are. Value your Religion, without which you cannot be safe.
Sir Thomas Clarges.] I except against what Finch said, viz. "That, instead of proceeding upon what you were about on Saturday, you now go about to arraign the Government."
Mr Finch.] No man but takes that for a part of the Government, that the King is pleased to make use of. The King's Justices of the Peace are a part of the Government. I am for naming particular persons that are faulty. That is for the safety of the Government.
[Resolved, That the Misrepresentations of the Proceedings of this House to his Majesty be one Head for the Address.]
Mr Sacheverell.] I move for another Head, not to name Ministers of State; but "to represent to the King the Dangers of his adhering to private Counsel, and not taking the Counsel of the Parliament."
Mr Secretary Coventry.] I am willing that all the Counsels I gave the King were told in this House. This next thing offered is as much as to say, that the King should lay down his negative Voice, and that he must not refuse any Law offered him by the Parliament.
Mr Sacheverell.] I hope hereafter, that those Gentlemen will allow that the King does it by his Council.
Mr Secretary Coventry.] Then the King must advise with no body; and when a Bill has passed the two Houses, the King must have no Advice upon it, but pass it.
Mr Sacheverell.] I put it not upon the Privy Council, but upon "private Advice," and things not come to the Council Board. It seems, then, there is something single and separate from the Parliament and CouncilBoard.
Mr Williams.] If Coventry will aver, that the Advice of the King's rejecting the Bill for the Militia was given by the Privy Council, he says something. But Gentlemen put it particularly upon the Advice of particular men, and not the Privy Council; that they have swayed the King against the Advice of Parliament. I know no such Council, nor Law of England. I know none as a Council for foreign Affairs. It is not known in Law. This is a jesuitical argument, a non concessus, or an universality, out of a particular thing.
In answer to Dering, he farther said,] That the King's Counsel learned are advised in matter of Law. But as to what he says of the King's advising with the Judges, they are not to give Advice, but when a thing comes immediately before them in Court.
Mr Powle.] A Cabinet Council, that takes things out of the hands of the Privy Council, is the complaint. Not many days since I asked, "Whether the matter of not disbanding the Army, when a Law had passed for it, was brought to the Privy Council?" It was answered, "No." Surely you are not against removing such as advised it.
Sir Nicholas Carew.] This hellish Plot was discovered six weeks before it was brought to the Privy Council.
Sir Thomas Clarges.] The Plot was concealed six weeks, &c. and those about the King called him "that rascal Oates." And will you now deliberate this, "of the Ministers, &c." to be one Head of the Representation?
Sir John Knight.] I believe that Coleman had more communication and interest with the Ministers, than the Parliament had. In one of Coleman's Letters, "We cannot trust Rouvigny. If Courtin please you not, we'll send you another." See the Letters in the Journal.
[The previous Question being carried, 138 to 114,] from these Heads, a Committee was ordered to draw up an Address, &c. viz. That a Representation be therein made to his Majesty, of the dangers that have and may arise from private Advices contrary to the Advice of Parliament—And of the danger that may arise to the King and Kingdom by the non-observance of the late Laws, &c. against Popery, &c.
Colonel Birch.] I desire that one Head may be added to the Address, viz. "That this House did not intend to take the Militia out of the King's hand, by the last Bill which the King rejected."
Sir Thomas Littleton.] That you may not multiply Heads in the Representation, I conceive that will come naturally in the first Head.
Mr Oates was called in.
The Speaker.] When you was last here, you desired the House to intercede to the King for your Pardon, &c. The House has addressed the King accordingly, and the King has been pleased to grant you a Pardon from the beginning of the World till the last of November; and that you shall have the liberty of Whitehall and the Park. But your Guards are to be continued for the safety of your person (fn. 2).
Mr Oates.] The Guards that I have, annoy me. They do not use to lie in Gentlemen's chambers. I desire they should not follow me. I desire there may be a chamber for the King's Guards to lie in. They annoy me. It is my humble request, that the two Yeomen of the Guard may be taken from me. I cannot be free with my friends, when they are with me. I leave it to the discretion of the House. If they must follow me, when I go abroad, I desire there may be a chamber for them apart from me. As for the liberty of the Park, I care not for it. I would have the privilege of an English-man, to go into the city. I fear nothing. (Some Gentlemen whispered to the Compiler, as if Oates had an intent to run away.) I desire that I may have a copy of what I shall now deliver, which was that Paper I gave in to the Clerks of the Council. I have no time to write, when two Guards are in my chamber.
The Speaker.] You cannot be ignorant that you have drawn great malice upon yourself, by your discovery of the Plot; and this Guard is only for your safety.
Mr Oates.] I never had these Guards before November. I say that it is against Law, that I should have Guards upon me. I humbly thank the House and the King, for their care of me, and shall rest satisfied in what the House shall determine.
Then Mr Oates read what he informed the House of last, with this addition, "That as he stood in the anti-chamber at SomersetHouse, when the Queen came out from the Consultation, she took as much notice of him as usually she does of those of his rank, and gave him a gracious smile."
Tuesday, December 3.
On the Disbanding Bill (fn. 3).
Mr Swynfin.] Those men that were taken in to fill up the companies, since the Act for disbanding the Army, had neither Order nor Warrant for it, but were prohibited, by the Act, to take in any more. That was to raise men against Law. It may be, you will have no more accounts for those men. I would leave them, till you see the Muster-master's Rolls.
[Resolved, That a Bill be prepared according to the Instructions to the Committee.]
Wednesday, December 4.
Mr Secretary Coventry delivered the following Message from his Majesty:
"C. R. His Majesty, to prevent all misunderstandings that may arise from his not passing the [late] Bill of the Militia, is pleased to declare, that he will readily assent to any Bill of that kind, which shall be tendered to him, for the public security of the Kingdom by the Militia, so as the whole power of calling, continuing, or not continuing [of them] together, during the time limited, be left to his Majesty, to do therein as he shall find it [to be] most expedient for the public safety."
A Gentleman saying, "That it was against the Orders of the House to bring in another Bill of the same nature with that the King had rejected"—
Mr Secretary Coventry replied,] I would not have a standing Order of the House broken, but on extreme necessity, to save the Nation. If the French King invade us, surely we must not stay for an Act of Parliament, and then scruple an Order of the House. I am one of those that think we are in great danger; and will you let the safety of the Kingdom be gone over, by pretence of breach of an Order? You cannot answer it to God and the Kingdom.
Sir Nicholas Carew.] This is a matter of great concern. I wish the same opinion had been in persons formerly, as now they seem to be of, in relation to dangers from France. Formerly they were of another opinion. It may be, this is only designed to break that ancient Order, of bringing in the same thing rejected in the same Session. I would well consider of it.
Colonel Titus.] Many things seem small at first, that are not small in the consequence. We are now but a small House; and I believe it is not a day or two will make us in more danger than we are already. If the Sheriffs be careful of their duty, they may do much with the Posse Comitatus. Catesby and Percy, in the Powder-Plot, were taken by the Sheriff. If you consider this great matter in a thin House, a full House will scarce give you thanks for your haste.
Sir Gilbert Gerrard.] I am sorry you are put upon this after-game. I propose this to any man that is a soldier, for such a little county as Durham, four hundred horse may cut all their throats. Sir Francis Ratcliffe, the Papists General, may embody ten thousand men in Lancashire and Northumberland. I would consider of it, to be in some posture.
Sir Thomas Littleton.] This is no slight innovation, to bring in a new Bill, &c. I will consider it to salve objections. The King has his negative Voice. He refuses, or passes, Bills, in gross. Now the King proposes you an emendation of your Bill; so in time it may creep upon you, that the King may propose whole Bills to us, as he does to the Parliament of Ireland; and we know not how far this innovation may go. If this be not worth considering one whole night, nothing is. I pray consider it.
Mr Williams.] If form will stop a Bill from passing that is for the safety of the King's Person and the Government, I hope it will not be ill taken, if we bring not in a new Bill, and break an essential Order of the House. I hear of no precedent for two Bills of the same thing, in the same Session. It may be, hereafter, we shall be brought to the method of an Irish Parliament. By the Stat. of Carlisle, the King must take the whole of a Bill, or refuse the whole. The King says, "That something in the Bill intrenches upon his Prerogative;" and says the King, "Leave out such a part, and I'll pass the Bill." Do you not truckle, by this, to those Counsels you are going about to represent to the King? I see it is no incroachment upon Prerogative. We repeat Bills and Addresses, and trifle away our time. Look into Precedents. If once you come to break forms of Proceedings, you will come to break Laws themselves. I am against it.
Colonel Birch.] The thing moved for is another Bill, &c. and the ground of it is your danger. Look back into former times, and you will find ill things have come in so. I have heard the reason, why not the same Bill in the same Session; "the King takes all the Bill, or none." Admit this once, and if some Council like not part of a Bill, it may be turned back upon you, and the House of Commons must make another Bill. Pray lay this aside.
Mr Powle.] The argument, it seems, for another Bill, is necessity; by reason of our danger, &c. we must break forms. If there be such a necessity, why was it not broken on the other side? And let us address the King to pass the Bill. If you bring in another Bill, you own, and you have acknowledged, that you have invaded the Prerogative. I would rely upon the King's care, and God's providence, for our safety. And seeing we cannot raise these "legal" Forces, let us go about disbanding those that are "illegal."
Sir George Downing.] I would not have a new argument to keep the Army on foot for defect of the Militia. It is more than ordinarily necessary, that there be a perfect understanding betwixt the King and us. I move not for a Bill, but that you would consider of it. The Lords agreed not with you formerly, about the Bill for disbanding the Army. It was left upon the Lords table, at the Conference; and the news went to coffeehouses. You remedied the thing then, by patching up that Bill with another.
Mr Boscawen.] That Bill was not rejected by the King; it was only lost between both Houses. And that is no precedent. I am far from voting that we will have no such Bill; but only I would have a Committee to examine the rejected Bill, and Precedents, &c. I propose it only to consideration, to raise the month's pay in general on the whole county, or on particular persons, charged by the Militia Act only. In Scotland, there are Lords Committees of Articles, and nothing else can be proposed to Parliament but from them. I have heard that some, near the helm of the Government, have much commended that way of Parliament. I would refer this to a Committee.
Sir Edward Dering.] It is a wonderful thing, that, when a great danger threatens us, and that we have lawful force to defend ourselves, yet we cannot come at it. It seems there is no precedent to the contrary (of the same Bill brought in again in the same Session) but only there is a want of one for it. Though this Bill be rejected, yet, if there be any material alteration in it, it may be offered again. I move you, therefore, that you will go that way for a Bill, or Bills; and to inspect the Acts of the Militia.
Mr Sacheverell.] I think still we have the same Counsels, and are put upon the same difficulty in this, as in other things. If you bring in another Bill, you must own you are in the wrong. Any time these ten years, we have been put upon these difficulties. They put you in the condition of the meanest Court in Westminster-Hall; upon a bare Motion, to alter a Bill. Surely you should have had some reasons of precedent offered you. Is this a proposition fit to be accepted in Parliament? It is a skreen to the Counsellors: And now you are making a Representation to the King, they come to wheedle you. But I would scorn to be tricked by any Minister whatsoever. I would rather let them see the shame of what they have done, than patch up their defect in another Bill. In 1666 and 1667 there was a large Poll-Bill, and Supply for ships; and that year we had the shameful dishonour at Chatham. Then followed the Triple League—Arguments, at the same time, to break it—Supported by France—And they say still, "Give the King Money, and he'll raise the Militia." Will you now support these Counsellors? You support Papists in doing it. If they have prevailed with the King to offer you this, let them not prevail with you to do it; and lay this aside.
Mr Bennet.] This looks like the way of proceeding of the Lords of Articles in Scotland; and we have a good Scotch Lord (fn. 4) near the King. This, offered you, is Poynings's Law (fn. 5), and we know who heads the Irish Army.
Sir John Ernly.] I know not who gave this Advice to the King; but I am sure, when such a Bill was passed in the Long Parliament, the King could not take the Militia down.
[Resolved, That a Committee be appointed, to inspect Precedents touching the Methods and Proceedings of Parliament in passing of Bills; and to enquire, Whether, according to the Methods of Parliament, a Bill may be brought in, for making the Militia more useful; and to report their Opinion to the House.]
Thursday, December 5.
Sir John Knight moved the Impeachment of the five Lords in the Tower, now that the Grand Jury had found the Bills of High Treason against them.
Sir John Hotham.] The Grand Jury have done their duty in finding the Bills against the Lords; and I hope this House will do so too. Things may be baffled; and I hear there is Evidence, that may come home to them, not yet examined. The Committee has not, all this while, been taking Evidence, to signify nothing. I cannot doubt, nor will, of the Justice of the Lords upon their own Members; but there is a great deal of difference between an ordinary Tryal of a Peer, and upon the Commons Impeachment, who will lay the finger upon the sore. I move that you will impeach all the Lords, &c. or as many of them as you will think fit.
Sir Thomas Clarges.] You have already voted an Impeachment against Lord Arundel; now the Question is, whether that, or any Court, can take that matter, being before you, into their cognizance, as to that one Lord. A Proceeding against any Lord, or Person, whom you take upon you to impeach, is very extraordinary. I do not hear of any Indictment yet found against the Priests. I would have impartial Justice done, as to all concerned in the Plot; but I would have the Judgment of the House in this Indictment, you having drawn an Impeachment against Lord Arundel, and being still in the exercise of it, whether any Court can take it out of your hands?
Sir Richard Temple.] I see not how your Vote of Impeachment against Lord Arundel, &c. can be taken notice of without doors. But if you neglect it here, it must not be neglected without doors. The Prosecution without doors has not at all clashed with your Proceedings.
Sir William Hickman.] As to Lord Arundel, we are concerned already. And if we have been so long too slow, let us now send up to the Lords, to impeach the rest of the Lords.
Colonel Birch.] You are told by Serjeant Streete, "that this Prosecution is in the old channel, by way of Indictment and a Grand Jury." But Impeachment is as old, sure, as any way of Prosecution. I appeal, whether you were yet ready for any such thing, Evidence not being yet come in. If you impeach the Lords, you do it "of Treason, and other High Crimes and Misdemeanors." And we are not so hasty, because we know not yet what our Evidence will come to. Because I see preparations in Westminster-Hall for the Lords Tryal, I doubt not of the Justice of the Lords. But the matter is not yet ready, and I would have their Tryal stopped, and the Impeachment drawn, &c.
Mr Williams.] The more time you take for the Evidence to come in, the better it is for the King, and the Kingdom, and the Lords too. It is but a little inconvenience to let them be somewhat longer in the Tower. New discovery, and new Evidence, improve daily; some grow stronger, and some weaker; and had not you concerned yourselves in the Examination of the Plot, it had come to nothing. But if you leave the Prosecution of it to the ordinary course of Justice, though it be ancient, yet Impeachment is as ancient. The Peace of the Government is a good argument used sometimes: but I would not accelerate these Tryals. I am not satisfied that we have full light yet, and full Discovery, though there has been a fair time for Discovery and Examinations. If the Lords are guilty of the Plot to-day, they will be another day; and if innocent, they will be so too.
Serjeant Maynard.] The Debate is, whether you will go by Impeachment, or the ordinary way? The Attorney General, in the ordinary way, goes by way of Indictment; but we are not to trust to that, if we can trust our own Evidence. The Lords and Commons have agreed, that there is such a Plot. If it had been only to murder the King, then the Prosecution might have gone on in the ordinary course of Justice; but this Plot is to destroy Religion and the Government. I do not know but these things, if questioned in Parliament, may be made and declared Treason. 25 E. III. There may be such exorbitant crimes, fit for Parliament to consider, that no ordinary Judge nor Jury can take notice of; but in Parliament they may. It clearly appears, that there was a design to overthrow Law, Religion, and the Government; and that, in Parliament, would be declared Treason. Therefore it is better that way, than in the ordinary way of Justice. It is not an ordinary Treason, and therefore not fit for ordinary Prosecution. Many lesser things than this have been made Treason; as to kill a Judge in his Place, exercising his Office, or to counterfeit the King's coin: But this crime must have been an universal destruction to Religion and Government. Misdemeanors there may be, which, by ordinary way of Tryal, are lost, and not punished; and you may meet with them in Impeachments. In the ordinary way the Lords are tryed by twelve Peers, and they can have no challenge. This concerns all the Nation, and so is more proper for an Impeachment.
Serjeant Stringer.] If ever, in any age, there was matter for an Impeachment from the Commons, there is at this time. Else we cannot give the world a just account of our actions. It is by the Commons of England that this Plot was discovered; and till they took the matter into their hands, little was done. No Lord, nor Commoner, accused of the Plot, but was taken by their care; and the rest had not been taken to this day. The Commons having done this thus far, they now show the world that they persevere in their Prosecution, for the good of the Nation; and they will see the King's Evidence managed to advantage. If this of impeaching the Lords had not been moved, I intended to have moved it. Possibly we may have more Evidence than the Attorney General or the King's Counsel. As they manage the Prosecution for the King, so the Commons manage it for the King and themselves too, and are therefore more likely to prosecute with effect. I move as before.
Mr Sollicitor Winnington.] The Motion goes not to alter the way of Tryal of the Lords. It must be in full Parliament, where the Lords are Judges of Fact, and Judges of Law. The Lords accused lose neither way. But if you go not by way of Impeachment, the King and the People will lose their right by the 25th Edw. III. That Statute, having great regard to the safety of men, does declare what shall be Treason for the future; which is only a Declaration of the Common Law what was Treason before that Statute. It does not alter the Common Law, but enumerates many particular cases; and leaves the Declaration of more Treasons than are particularly expressed in that Statute, to Parliament. The accused Lords may say, they have reason to thank the King for the Indictments, who are all found guilty; but that is but an accusation. What would the consequence be, if we proceed not by Impeachment? If we try not the Lords thus, they may say, "the King has declared, by Acts of State, that there is a Plot. And so have the Lords and Commons by Vote; and so have all the Evidence, &c. We are likely to do well, when the Commons have Evidence against us, and they have thought fit not to impeach us." Were I of counsel for the Lords, I would advise them to say so. Whether Tryal, or Impeachment, be the elder brother (as Streete says) I cannot tell; but I believe, Tryal of a Peer in Parliament is more ancient than by Indictment, &c. I am as tender of blood as any man, but I hope, if the Lords are guilty, there will no defect be shown by the Commons of England. When the Commons come to impeach, &c. Treason may melt into Felony, and Felony into Misdemeanor. But you have it at large to construe. The other way of Tryal is streightly tied up, in comparison of the Commons Proceedings; and I would not streighten the King's Proceedings. The Attorney General may say, upon the prosecution of a person at the Assizes, "that the King's Evidence is not ready," and the Court must stay Tryal till next Assizes. It will be a blot upon you and posterity, if you proceed not with the rest of the Lords. Having already voted an Impeachment against Lord Arundel, I hope you will not fail in the prosecution of the rest, nor flatten in the interest of the Protestant cause.
Serjeant Maynard.] There was a noble Lord once impeached here; first, the charge was general, and then the particular charge was carried up to the Lords, in order to Tryal.
The Speaker.] The first step you make in this matter, is to determine your resolution to impeach. The next is, the persons whom you will impeach. Then you are actually to go to the Lords Bar, and accuse the persons, and acquaint the Lords, that you will take time to make your charge out; and if the persons accused be at large, to desire that they may be in custody. But these Lords being in custody already, that is out of doors. But you send not to other Courts to stop proceedings; but all Courts do stop, of course. The Lords cannot proceed originally to Tryal, &c. unless the without-doors matter be certified to them from the Court where the Indictment was found. But if an Impeachment be brought up from hence, all proceedings below cease.
Mr Powle.] When a Bill is found against a Peer, at Law, the King gives Commission, under the Great Seal, the Parliament sitting to try, &c. This being so, you are to address the King to stop any such Commission, you intending to impeach the Lords, &c.
The Speaker.] You have already voted an Impeachment against Lord Arundel. There remain the Lords Powis, Bellasis, Stafford, and Petre, to vote a Charge of Treason against, and other High Crimes and Misdemeanors. So that the first Question must be, "that they be impeached;" and the next, "of Treason, and other High Crimes and Misdemeanors."
Mr Sollicitor Winnington.] The next matter is, what is to be done with these Lords. In the Tryal of Lord Pembroke, the Parliament sitting, whether the Lord Steward had a Commission under the Great Seal, or whether by delivering a White Staff only, I cannot say.
The Speaker.] In matters criminal, the Lord Chancellor keeps his Place. In matters capital, the Lord Steward has the Badge of his Office, by the delivery of a White Staff. When the Tryal is over, he breaks the Staff. You are first to send up Articles in general, and say, "That in due time you will send special Articles."
The Form at large, thus:
"My Lords, The Commons of England, in Parliament assembled, having received Information of divers traiterous Practices of a great Peer of this House, Henry Lord Arundel of Wardour, have commanded me (and so of the rest) to impeach the said Henry Lord Arundel of Wardour of Treason, and other High Crimes and Misdemeanors: And I do here, in their Names, and in the Names of all the Commons of England, impeach the said Henry Lord Arundel of Wardour of Treason, and other High Crimes and Misdemeanors.
"They have farther commanded me to acquaint your Lordships, that they will, within a convenient time, exhibit to your Lordships particular Articles of the Charge against him."
Mr Thynne carried the Impeachment up against Lord Bellasis.
Sir Scroope Howe against Lord Viscount Stafford.
Mr Michael Wharton against Lord Arundel of Wardour.
Sir Philip Warwick against Lord Petre.
And Mr Maynard, son of Lord Maynard, against the Earl of Powis.
[And a Committee was appointed to prepare and draw up Articles against them.]