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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Saturday, December 21.
On the Lords alteration of the place in the disbanding Bill from "the Chamber of London," to "the Exchequer."
Sir Tho. Littleton.] It is not now the Question, "Whether the Money shall be placed in the Chamber of London, or the Exchequer," but whether the vital Privilege of this House, the fundamental Privilege of this House, shall be given up. It is not now, "Whether the Exchequer, or Chamber of London, &c." but whether you will give up the right and constitutions of Parliament, the very vitals of Parliament, viz. "That the House of Commons have power to place the Money they give."
Sir John Ernly.] If it be granted that no circumstance of place can be in a Money-Bill, upon the Division of the House, I would not have gone out for placing it in the Exchequer, and not in the Chamber of London. Suppose you should send up a Bill, &c. to put the Money into your Serjeant's hands, cannot the Lords dispute it, if it be a thing that may be disputed?—Suppose you rate the Lords at 2d. a-piece—They may rate themselves—unless you would have the Bill fall. (Some cried, "Let it fall.")
Sir William Coventry.] You are told by Ernly, "That a Tax-Bill fell in the Lords House once, upon their lovering your rates upon foreign commodities, &c." But that shows that you maintained your rights. In the Bill for ships, the Lords would have their share in taking the account of the Money, how laid out. "That the Commons should have the account," was part of the condition of the Grant, and the Commons would not agree the Lords any share in it—And you had it.
Mr Waller.] This Debate is not orderly. But all this may be said at a Conference with the Lords, and that is orderly.
Sir William Coventry.] For resolution of Wheeler's question, the Parliament did, several times, recognize the Queen, in Queen Elizabeth's time, and King James's time. It might be reasonably supposed, that no man would oppose the Queen's or the King's title; but the form of the thing required a Question to be put.
Sir John Talbot.] Here is a Debate that arraigns all those that went out upon the Question formerly, of "the Exchequer and Chamber of London, &c." I am not for delivering up our power to the Lords—But this kind of taxing the Lords is but of late, within the memory of man. It was not in former ages so; the way was by Subsidy; the Lords and the Clergy by themselves, and they might add, surely. But if we have gained the point upon the Lords, let us know it, and then we may make use of it in its season.
Mr Powle.] When Littleton saw there was a mistake, he endeavoured to rectify it, not to fall into the same mistake again. The monthly Tax may be new, but the form of the Commons Grant is old. We may see it in Lex et Consuetudo Parliamenti, though it is not under any written Law, and never denied to be the right of the Commons.
The Speaker.] When you have given Money, the condition cannot be altered. If you have the right of giving Money, shall the Lords tell you how you shall give the Money? The Lords have right of Judicature, and shall you tell them how they shall judge?
They disagreed also with the Lords in this Amendment, viz. "John Birch, Esq;" instead of "Colonel Birch."
Colonel Birch.] I am the weakest and meanest person in the House; but that the Lords should think me so weak, as to be degraded and disbanded, from having assumed that name so long here!—And after being "a Colonel," not only under due Law and Authority, but by having a regiment also! When I waited on the King at Worcester, I saw very few there besides myself. I was ready to have my Commission there, but I was not satisfied that they would fight, and so I went away. I had Lambert's regiment given me to command, when General Monk declared for a free Parliament; and I held it till the King came in. And in May, when the King came in, I had a Commission from General Monk, by virtue of the King's Commission to him as General. Besides that, I have another Commission out of the Chancery, and another out of the Exchequer, with the title of "Colonel," and several other additions—And when all is done, I am as ready to be disbanded as any of these new "Colonels," and I am as much "a Colonel," as any of them.
Few of the Lords Amendments were agreed to.
The Articles of Impeachment against Thomas Earl of Danby, Lord High Treasurer, &c. were reported, &c. by Mr Sollicitor Winnington (fn. 1).
Mr Sollicitor Winnington.] By Order, I am to acquaint you, from the Committee, "That they thought it their duty, before they delivered the Articles, to look after proof of them: And the Committee have found proof sufficient to make them good. They have had but a short time for drawing them up; and the Committee is informed, that other Articles will come in, and in Impeachments there is always a saving for farther Articles."
Colonel Titus.] I desire there may be such an addition as the Sollicitor moved for, because I have it from Members, that you will suddenly be apprized of very considerable matters farther. It is said by Temple, "He would have you proceed in these Articles, in the same method as in the last Impeachment against the Treasurer. And that is, not to call in Witnesses till you had voted out all the Interrogatories."
Sir Edmund Jennings.] This is a matter not to be jested with. These Articles are of a high nature, and if made good, and the person guilty of them, he will deserve no little punishment. Now whether you will think fit to take this Information from the Committee, without farther grounds? I think it not for your honour. The Committee could not be found out where they sat, and all Gentlemen here are on equal reputation, and if the Committee tell you they have inducements to believe the Articles, and show you no proof, they may, at this rate, impeach whom they please. You are told of "the Treasurer's treating with the King of France for six millions of livres, &c. and the matter not to be communicated to the Secretaries." But I must observe, that there are other Letters from Montagu, "That Rouvigny was to come over to break the War, and to propose Money for that end—And Montagu did not doubt, by his endeavours, to get double Money, and desired the Treasurer to acquaint none but the King with it." Now these Letters of Montagu's preceded those of the Treasurer in time. If it be a crime to transact affairs without acquainting the Secretaries, it is no less a crime in Montagu. And if six millions be a crime, &c. in the Treasurer, it is also a crime in Montagu to get twelve, and not communicate it to the Secretaries. If it be a crime in one, it is in another.
Sir John Knight.] It is regular now to be voted, "Whether there is ground of Impeachment in these Articles," and now they come to invalidate them.
Mr Sollicitor Winnington.] By your own Order, you are possessed of the Impeachment, by the Articles the Committee had Order to draw up, and the subject-matter is in pursuance of your Order to the Committee. That Letter, mentioned, of the Treasurer's to Montagu is not an Article of Impeachment; it is only Evidence of an Article. If you proceed as has been moved, the matter will be infinite, and no man will be brought to judgment.
The Speaker.] Regularly, you are to read the first Article, and then the Question is to be put, "Whether you will impeach upon that Article."
Sir Charles Wheeler.] If the fault can be taken off from the Treasurer, and laid elsewhere, it is a fair way of proceeding—And of that you need not go to King John's time for Precedents.
Mr Vaughan.] What was said, the other day, of King John (fn. 2), is no Precedent, but an example. And I hope if Gentlemen do those actions which were done in King John's time, they will receive the same punishment those persons had then.
The Speaker.] No doubt but you will be satisfied of the Article before you vote it an Article.
Sir Thomas Lee.] Search the Journals, and see the case of the Duke of Buckingham, and you will find, that his servants and relations were voted to withdraw, and not vote in his case. I would have it so now in the Treasurer's case. (Upon Sir John Hanmer's saying, "That Mr Montagu ought to withdraw.)
Sir Robert Sawyer.] Read the Vote and the Order, and then you will see whether the Committee has pursued that Order. You must see whether these Articles are a ground of the Impeachment you resolved, whether made out by those Letters, or no. The fact must be first stated; otherwise it is impossible to give a Judgment, whether it be Treason, or not. To pass a Judgment substantially, I will not trust my conscience with any Committee. When that is done, one or two Gentlemen, at their perils, are to undertake that there are Witnesses to prove it. Read the Vote, and the Order to the Com mittee, and then see whether, out of those Letters, or other matter, the fact is Treason, or not.
Mr Montagu.] Because it was urged that by my Letter I was the occasion of the secresy of the transaction with France, I will show you an Order from the Treasurer for it, before I wrote that Letter.
Mr Bennet.] Before he shows any Letters, go on upon the Question, "Whether this Article be Treason, or not."
The Order to the Committee was read.
Serjeant Maynard.] I cannot speak to so many hares on foot at once. The Committee that brings in the Articles are not obliged to undertake the proof of the Evidence out of the House; that is, to undertake that other men shall believe it. And therefore that matter must be in silence; you will else let go the five Lords in the Tower.
Sir Edmund Jennings.] There is no design of impeaching Mr Montagu, but only, "That there is no sufficient ground for the Committee to go upon these Articles."
Sir John Ernly.] I remember the Articles against Lord Clarendon. The Question was then, at the Committee, "Whether Papers should be brought in without being signed, or no." You would not undertake the proof, but believed that persons would. The Articles were brought into the House, and undertaken to be proved. Some of them at the first reading were concluded, by the Long Robe, not to be Treason; and then it was said, "Treating with the King's enemies was Treason." My Lord Chief Justice Vaughan said, "It was not Treason, unless done contrary to the King's consent;" and then Lord Vaughan undertook the proof of it (fn. 3). This Committee calls this treating with the French "traiterous;" there can be no Treason without a Traytor. This is a sanguinary thing, and it is every man's soul and conscience that must answer this at the great day. If the nature of the thing bear it off, I am not against it; but I would be satisfied in it, as well as the Committee.
Sir Richard Temple.] To Order. You had facts before in Lord Clarendon's case. If the charge be brought within doors, it is undertaken by some Members to be proved, if witnesses will stand to it. The Evidence must either be immediately before you, or Members must undertake the proof of it.
Several complained of "the secret sitting of the Committee, not being to be found."
Mr Williams, Chair-man of the Committee.] The former day, you sat till ten o'clock at night, and the Committee of Popery fell, and could not sit. But as to the sitting of this Committee of Impeachment, I will give you an account where we sat; but it is not to gratify particular persons, but at the command of the House.
Sir Thomas Clarges.] The Committee, not being ordered to time or place, are not obliged to either, and they may meet where they please, and they have no obligation upon them.
Mr Harbord.] I would have Mr Bertie's words written down, viz. "That the Committee has put a slur upon the House;" and "that the Committee did sit in holes."
Lord Cavendish.] Those who except against the Committee, were not of the Committee, who would come only to spy what we did. God forbid that the Treasurer's life and estate should be in danger by what we did at the Committee! But if we are in danger of our lives and estates, by his means, I would have him give an account of his actions to the Public.
Sir Richard Temple.] No Committee can be appointed but must have time and place appointed.
Sir Henry Capel takes him to Order.] No place is appointed. If you read your Order, you will find it so. A Committee ordered to draw up a Bill has no place appointed. And the Committee to draw the Impeachment against the five Lords in the Tower has no place appointed. But as to "sitting in holes," the Committee had their liberty to sit where they would, and they had no Order for place.
Mr Powle.] It is frequent to appoint Committees, without appointing time and place. I came into the Speaker's Chamber, where I saw a great many Gentlemen, who, I believe, came not thither to farther the work. But when I saw they met not there, I went to view the Journal for the Order, and I found the drawing the Impeachment referred to two particular persons (fn. 4). I searched for them, and found a full Committee.
Serjeant Maynard.] There is a Committee for drawing up the Impeachment, and that excludes not others from coming to it. But when you go farther, and say, "two particular persons shall take care of it," they may meet where they please. I would adjourn this Debate now, and appoint the Committee time and place.
Sir Thomas Lee.] Put any one Question, what you will, to proceed and not lose time. If you void this, all the proceedings against the five Lords are void too. That Committee proceeded by the same steps. But consider, the Lords can proceed upon no judgment in this Impeachment, till they have all the Evidence before them: And that will satisfy any Gentleman's conscience, that our proceedings here do not judge the Treasurer.
Sir William Coventry.] I am sorry we spend so much time to so little purpose. Two persons were to take care of drawing this Impeachment, and this is in the nature of drawing a Bill. If twenty are named of the Committee, it is intended that the whole twenty must draw the Bill: But it is not to be brought to the House without the approbation of a convenient number, to avoid confusion; else you will never have any Bill drawn. If this Committee have observed these steps, they are right; if not, they are not right, and regularly to be reproved.
Mr Williams.] I shall speak to matter of fact. The Committee agreed to the place of meeting, seven or eight of us, before you lest the Chair.
The Speaker.] I will state you the right case. You direct your Committee to draw up Articles, and when they report what they have done, it is regular to say, "It is done by the authority of the Committee."
Mr Williams.] Six or seven of the Committee agreed on the place, which was at my Chamber in Gray's-Inn. Fifteen had notice of it, and nine were at the place (fn. 5).
Mr Waller.] They said, "They named the place of meeting," and I doubt whether it be a Committee, if no place be named by the House. This is in vitâ hominis, and upon this occasion there have been such gross mistakes, that you yourselves have rectified what was amiss. I love union, and I could have wished that union against the common enemy. The King and we are agreed about the Popish Lords. When we come to personal things, then come in personal inclinations and aversions. When men appoint their place of meeting, and the House appoints none, then begins the inconvenience.
Sir Charles Harbord.] In the great Bill of Popery there was no time and place named; but in other things there must be. But for their "meeting in holes" they are to blame, and the Chair-man must give you an account of it.
Sir John Talbot.] You now know where the meeting was. I stand up for your Order's sake, not to spend the whole day in this Debate. Exception is taken to the manner of the meeting of the Committee, and that your Order is defective. The Orders, in case of a Bill, are different from this. The House then has debated the heads and resolved them, and then they are put to two or three Gentlemen to make the coherence of what you have agreed. But this Committee has stamped the crimes upon the thing, which they ought not to do. I have seen Williams pass Votes, when in the Chair, when the Committee has rescinded what was done. This Committee being clandestine, it may be they have not done their duty; for they have stamped the crime already upon the Articles, which they had no authority to do. Therefore I move, "That the Articles may be recommitted."
This was seconded by Serjeant Maynard.
The Speaker.] No man, by the ancient Rules of the House, is to be of a Committee of a thing he is against, but yet his presence is not excluded. You are to keep to that point before you, viz. "Whether the Committee has proceeded regularly in what they have done." Another Rule of the House is; when the Reporter stands up, he is to be heard before any man else.
Mr Williams.] Eight of your Committee were present when the Articles were drawn, and they met this morning in a full Committee, in the Speaker's Chamber, and made some alterations, and adjourned to the inner Court of Wards.
The Speaker.] That there may be no misrepeating now, and no misreporting afterwards, let any two agree on a Question, and I will put it.
Mr Bellingham.] I will make you a Motion. Let the best friend the Treasurer has in the House propose a Question, and I am for having that Question put.
Mr Powle.] I would not have the determination of the Question upon you, Mr Speaker, lest you be chid for it. I would have it the Question and Opinion of the whole House. (reflecting.)
The Speaker.] I know not what that means, "of being chid for doing my duty here." If any chide me, I will chide them again.
Sir John Bramstone.] What would you recommit? The Paper was never committed; but I would have you name time and place for the Committee appointed.
Sir Courtney Poole seconds Bramstone.
Sir Edmund Jennings.] If the Question be, "Whether the Articles shall be recommitted," let the Question be, "Whether the Impeachment of the Lord Treasurer shall be recommitted."
After divers variations of the Question by the Treasurer's party, for they could not agree amongst themselves what Question they would have put, this was the Question: "Whether the Articles of Impeachment against the Lord Treasurer shall be recommitted;" which passed in the Negative, 179 to 135.
The first Article against the Lord Treasurer was read, and is as follows: "That he has traiterously assumed to himself Regal Power, by treating in matters of Peace and War with foreign Ministers and Ambassadors, and giving Instructions to his Majesty's Ambassadors abroad, without communicating the same to the Secretaries of State, and the rest of his Majesty's Council, against the express Declaration of his Majesty and his Parliament; thereby intending to defeat and overthrow the provisions which had been deliberately made by his Majesty and his Parliament, for the safety and preservation of his Majesty's Kingdoms and Dominions."
Mr Peregrine Bertie.] Before you go to the Question, I would have some of the Long Robe speak to this Question.
Sir Charles Wheeler.] The Question is, "Whether you will apply this Article to the title of "assuming of Regal Power, &c." and "Whether the Treasurer assumed it, or no." If he assumed Regal Power, that is Usurpation, and whoever assumes it is guilty of Treason. In Lord Clarendon's case, every Gentleman that brought in an Article said, "He could prove the thing." The Article says, "He assumed Regal Power." The Letter to Montagu was by the King's command; he does it. Now how can a man say, "that he assumed Regal Power, and obeys Regal Power?" Now having voided constructive Treason by the case of Lord Strafford, our Liberties, Lives, and Estates are at stake in it.
Mr Vaughan.] As nothing can flow from the Crown that is unjust, so nothing that is unsafe. At the same time that you are raising an Army for a French War, here is one treating with the French for Money for a Peace, and contriving to lay aside the Parliament for three years; and this is the present case before you.
Sir Charles Harbord.] The Treasurer is to make good the King's command for what he did, in his defence, when he comes upon his Tryal. But you see plainly that he treats for the Peace, and the Money, and you know nothing of the King's command for him to do it.
Mr Finch.] What I shall speak to is, whether the word "traiterous" shall stand in the Article. Impeachment must be for a crime, but the nature of that crime is the Question. In justice to yourselves and posterity, I would not have you aggravate the matter beyond its due nature, against Law. I know not by what Law in the world that encroachment upon Regal Power is not Treason. I would have the matter of fact made out by the Long Robe.
Mr Powle.] I commend the resolution of Gentlemen in not dipping their hands in blood. And so I hope we shall be all clear of that, when we come to give an account to God, at the last day of judgment. I think, in the Treasurer's Letter, he says, "He does it, &c. by the King's command." No man certainly is so void of shame; but he would entitle the King to it. No man has authority to treat of these matters, &c. but virtute officii, or by Patent from the King to do it. No verbal Order from the King can authorize it—This is no part of the Treasurer's office—Look on his Patent, and you will find that he is only to look after the Treasury; he is not to meddle with foreign affairs, and none are to treat with Ambassadors but by the King's authority under the Seal. If the Treasurer has any such authority, I suppose he will produce his Letters Patent in his defence. At the time that you gave the Poll-Bill to be employed in an actual War against France, the Treasurer stipulates for Peace with the French King. I know not how he can justify it.
Sir John Ernly.] I know not what authority the Treasurer has to treat, &c. But was not the King a Mediator in the Peace? how could you expect it? War was never made for War's sake—I doubt it will appear, that the Spaniards might have had better terms, if there had not been other engines on work; and I doubt not but Mr Montagu can say much to that, and in honour and justice he ought—that the Treasurer was never for France, nor of that sort. If the King was a Mediator, and could not treat with France for Peace, it is strange—But we had actual War with the French in Flanders. The Treasurer has done nothing but what he had authority for, and if it be a crime, Montagu treated for it, and would have had double the Money proposed.
Mr Montagu.] When the time comes I shall say what is true, as to the Lord Treasurer. And if I be to blame for what I have done, I will suffer the sense of the House.
Sir Thomas Higgins.] I never knew but that the King could give authority to treat about Peace. It is the wisdom of the Gospel that bids us seek Peace. The advantages of Peace depend upon circumstances, or changes of our enemies.
Sir Henry Ford.] I make no question but this first Article, if proved, is very applicable to the title. But I presume there is some farther proof of it than this Letter. It is said, "If the person that so treats, &c. be qualified by his Place or by Patent, that it is not Treason." But till I know whether he has or no, I cannot give my Vote. I should be bold to ask the Committee a Question, "What proof they have had?" It is the same Question you asked the King, in your Address, when Montagu's Cabinets were seized, &c. "Whether upon Oath?" They have no power, as a Committee, to examine upon Oath; but some of them are Justices of Peace, and may examine, &c. I move to know the proof of this Article, and so I shall in every one.
Mr Bennet.] Ford has come near the matter. He agrees the Article to be Treason. And if the Treasurer has a Patent to treat, he may in due time plead it; but we are not condemning him.
Sir George Downing.] As to the office of the Lord Treasurer, if you take it for a thing you can maintain, that the Lord Treasurer is not to give instructions to Ambassadors but by virtue of a Patent, you will be mistaken. It was very ordinary, when I was abroad, for other Ministers to send instructions from Lord Clarendon, and other Ministers to signify the King's pleasure.
Mr Sacheverell.] In this I will appeal to the Gentlemen of the Long Robe. Great stress is laid upon the words "assuming, encroaching, or usurping Regal authority." I would know, whether treating Peace and War without the King's consent is Treason? For that making Peace and War is in the King, no man will deny. I presume, that to treat of Peace and War against the King's declared sense in Parliament, is Treason, especially as expressed in the latter end of the Article, when it is in danger of the King and Kingdom. I would have any of the Long Robe answer that.
Serjeant Pedley.] The Question is not of matter of fact, whether this Article be true or false, but what you will denominate the thing. 25 Edw. III. enumerates Treasons (fn. 6) —And what is made by this Parliament for preservation of the King's Person—All other Treasons are out of doors. Those made in Queen Elizabeth's time were temporary, and now all is comprized in 25 Edw. III.— Those words in the Article of "encroached to himself Regal Power," are not within that Statute. "Regal Powers" are often assigned to particular jurisdictions. Some Courts have power of naming Justices of the Peace, and misdemeanors of those Courts are not only punished by Quo Warranto, but in the Exchequer also. Raising of War is depriving the King of his Imperial Crown and Dignity. Where it concerns a person's blood, we ought to be tender; but, without doubt, this Article is a high Misdemeanor, and we can punish for no more than the crime is. I am very doubtful whether these crimes be within the Statute of 25 Edw. III. I would have the Statute read. Treason at Common Law this offence might be, but that was endless, and so the Statute of 25 Edw. III. was made.
Mr Vaughan.] We have, at the best, but a sad and melancholy business before us. No man's greatness and authority, but, if great and unjust, aggravated the ill he did, being in power to do good. I am not of opinion that this Article is Treason, either by the Statute of 25 Edw. III. or Judgments, which is called Common Law; but the Parliament may declare it Treason. Those that are equal inconveniences to King and State are to be made Treason. Delivering up towns to the King's enemies, without being driven to the utmost distress, was not Treason, but judged in Parliament to be Treason. John Imperial's case, who was Ambassador of Genoa—The killing him was not Treason, but because it was a high dishonour to the King to have a foreign Ambassador killed in his Kingdom, it was in Parliament judged Treason. Now the Question is, whether this Article be equivalent to that case? It is the greatest thing that can be done in dishonour of the King, to sow sedition in the Kingdom—When a War was declared in Parliament, and Money given for it, and at that time to stipulate Peace with the King's enemies;—it was enough to set the Kingdom on fire. There is no measure to know the King's meaning, but by his revealed will—The King, by his Act of Parliament, declared War against France, and this man then treated for Peace, and no greater disparagement could be to the King than to become a Pensioner to the French King, and so great a sum to come into England from the French must balance on the French side. I have delivered my opinion.
Mr Williams.] By Pedley's opinion, he agrees that this is Treason at Common Law. The Stat. of 25 Edw. III. alters not the Common Law, only as to the judgment of Treason in the inferior Courts, but alters not the authority of Parliament. The Parliament is not bound up, but may declare Treason. 25 Edw. III. touches not this matter at all; but you cannot create this Treason, that was not so at Common Law. This being so, you may declare it by this Impeachment, and the Statute of 25 Edw. III. has no influence at all. Now I will come to the nature of the thing—Compare Treason with Treason—Take the case in fact as it is before you: A Treaty with a foreign Prince against an Act of Parliament! Can any thing be more heinous, or touch the King's Crown and Dignity more? To imagine any thing against the King's Crown and Dignity with overt act, is Theason. I am of that opinion, till I am convinced by better judgments.
Sir Richard Temple.] All Common-Law-Treasons are taken away by the Statute of 1 Mary. Declaratory power in Parliament could extend no farther than to what was Treason at Common Law, &c.
Sir Harbottle Grimstone.] The little I have to say, is in answer to the great deal said by Temple. As to the business of Treason, I agree with Pedley, but more with the Statute of 25 E. III. There are certain Treasons not mentioned within that Statute—It must be agreed, that they were Treasons before then—What does that Statute confine? It does only the inferior Courts. The omnipotent power of Parliament takes cognizance notoriously of circumstances, for the terror of others, and we have precedents of men dead and rotten, and yet the Parliament has made their memory rot to posterity; they have been taken up and buried under the gallows. When Judgment of Parliament was for a War with France, and the people were possessed of it; when the King and the Parliament declared a necessity of a War with France, and the Parliament was raising money for an actual War; for any man then to treat for Peace! When once confidence is broken betwixt the King and his people, nothing tends more to the destruction of both, and they are the worst of men that have brought us to this pass, that we have no trust at home—We are then a fit prey for the French. I do not condemn this great Person before-hand, but it will rest upon the House to make this Article good. I say, it was Treason at Common Law before the Statute of 25 E. III, and this is a power reserved in Parliament by 25 E. III, to declare it Treason now. If he has a Pardon, you may go on with the Impeachment, notwithstanding. If he has a Pardon, let him plead it. I would not have him hanged with his Pardon about his neck. Compare this Article with the particulars enumerated in that Statute, and you will find this offence as dangerous as any enumerated there.
Sir John Bramstone.] You have matter of fact before you, and out of that arises matter of Law. Will you take the part of the Letter against the Lord Treasurer, and not the part of the Letter for him? The Letter says, "He was commanded by the King to signify so much to Montagu;" and never was there any War by Act of Parliament to last for ever; the King must treat for Peace in time of War. I see no crime at all in the Treasurer, in this matter. If it be a crime, I will be bold to say, that the crime must be Felony before you can declare it Treason. If Impeachment only be sufficient, what need was there of an Act of Parliament to attaint in Lord Strafford's case? I believe you have no power to declare that Treason which was not Felony before.
Sir Thomas Meres.] The Gentleman makes a mistake in the point. I agree that nothing can be Treason, but what was Felony before. But this is Judgment of Parliament. It is put upon the difficulty of retrospect Laws; but this is no retrospect. He may be guilty of that Treason at Common Law, but not tryable at WestminsterHall: It must be declared by Parliament—If these be Treasons at Common Law, they are asleep, and none can awake them but Parliament. In Lord Strafford's case, the "ne trahetur in exemplum" was inserted, that the Judges should not take example, by that Judgment of Parliament, to judge Treason. Lord Chief Justice Vaughan's argument, when he sat here, in Lord Clarendon's case, was so; I affirm it.
Serjeant Maynard.] Whatever Vaughan understood it, I know not. I hear now great discourse of Treason, but I would have any man of the Long Robe, or not of the Robe, desine Treason—Only it is the punishment of a traytor. Coining of Money, corrupting the Queen's chastity, &c. Now under what common Genus's do these come? It is a dreadful judgment. It must be a crime, else you cannot make it Treason. Men must foresee what will be done; it must be referred to Parliament if doubtful. I hear it said, "That it must be Felony before it can be declared Treason." 1 H. IV, in case of Appeals—one Lord challenged another to combat, and the King might grant it. H. VIII. Statute cuts out a case, but takes not the authority from Parliament. In 1397, John Hall was sent over to Calais, by R. II. and they stifled the Duke of Gloucester with a feather-bed, and the Lords gave Judgment of Treason, 1 H. IV. and that was but a Felony, and done beyond the sea. To subvert Religion, and coin a shilling is Treason; to kill one Judge, &c. is not a greater Treason than to kill all the Judges. In every Nation one power is supreme. In England the King, Lords, and Commons. 1 H. IV. the Commons are petitioners to the King for matter of right, they are demanders for Justice. I will not enter into the question how far the Lords can go. Such a case may come as deserves as heinous Judgment as any of the Treasons of 25 E. III. If any man take Money to betray his country, or take Money here for his Vote, I would have him have Judgment before the Lords and you of Treason. If this be the case, and the Treasurer has done it by command of the King—the Law denominates Patricide (fn. 7); no Law for it. When men exceed the Laws in wickedness, Laws must be made to meet with their crimes. This case of War with the French King, &c. and Money given by the Parliament for it, and a private Council treats with the French King for Money for a Peace; there may be circumstances that may mitigate it— But for a particular Minister to divert the King's intentions by Law—It is but a monstrous opinion that great crimes should go unpunished As to Lord Strofford's case, in divers things he had exceeded; Sir Henry Vane took notes under his hat, at a private Council, of what Lord Strafford said, viz. "That the Parliament had denied the King Money, and that the King stood loose and absolved, &c. and might send for the Army out of Ireland to reduce his rebellious subjects in England." This and other things mixed together were declared Treason in the Long Parliament, 1641. The House of Lords went upon another way. I drew that Proviso, "That this Judgment upon Lord Strafford should not be drawn into example;" else liberty had been given to the Judges to have judged Treason accumulative. Therefore this should not be drawn into example, but the Judges should hold to the Statute of 25 E. III. But I am not satisfied in this Article, to be declared Treason.
Mr Waller.] Pray look into the Act of Repeal of Lord Strafford's Attainder. I differed from them then in the Attainder, and I do a little now—You will not make a Treason of imprudence—But there is the matter, whether the King commanded this. Mens regis is mens legis. That which you are to go upon is de jure. First, determine that this man treated without the King's Order. And next, how if he did it with his Order.
Mr Sollicitor Winnington.] I will not show the strength of my voice in what I say, but, as well as I can, of my reason. By 25 E. III, when the Nation was well settled after the Conquest, then they considered where that great trust should lie in point of administration of Justice against extraordinary offenders. That of the 12, 14, or 20 E. III. were Treasons; but because many other Treasons which the Judges shall not judge, are not there declared, yet it takes not away Treason at Common Law, to be judged in Parliament. That Statute of 1 E. VI. and 1 Mary takes care that no Treason shall be for the Judges to declare, but only such as is made Treason by 25 E. III. but not Treasons at Common Law. But because great men are too hard for the Common Courts of Law, and are apt to forget their duty in their Places, they incroach sometimes upon Royal Power, and take the Prerogatives inseparable from Regal Power to themselves. It is said, "That what this Lord did was by the King's command." Let him plead that in his defence, upon his Tryal. But it is not imaginable he should, when a few days before the Act was passed for the Poll-money for the French War, &c. when we had the greatest assurance, Royal Assent to an Act, that the King should give private Instructions in contradiction of that Act, is not a thing to be imagined of the King. In the Bill of Attainder of Lord Strafford, "ne trahetur in exemplum," was, that the Judges, by that Bill, should not learn from thence a new Treason, to judge in their Courts by it. "Not to draw it into example," is to be understood cum grano salis. As no man living is more tender of blood than I am, so I would do as I would be done by. And if that had been practised by the Treasurer, this Impeachment had never been—Taking it for granted that this is dubitable, whether he had the King's Command or not, it is our duty to impeach him; in one way you may miss the offender, in the other way he may have justice. If the Lords judge it Misdemeanor only, you have a just ground to take the help of the Law, when enormities arise from great men. I hope they were never too great for Parliament, and I hope never will.
Mr Finch.] The Question is, Whether the word "traiterous" shall stand in this Article. I would not have Gentlemen aggravate this matter. I say positively, that, without using your declaratory Power in Parlialiament, this Article is not Treason. We are little obliged to those learned Gentlemen to put us upon those explanations of Treason, to be snares to ourselves. Without such a ne trahetur, &c. all the Judges must, for the future, judge so. And you have opened a gap to all the Judges, &c. if you declare this Treason. There are no accessaries in Treason, all are principals, and you may involve the noble Gentleman, Mr Montagu, in it. It is said, "Several Gentlemen have known this some months before," and if this Article be declared Treason, that must be declared Misprision of Treason. I cannot agree with the learned Gentlemen about Treason at Common Law. They know how many snares there are in that CommonLaw-Treason, which does not only limit the Judges, but Parliament itself. That Statute says, "Treason, or other Felony;" so it must be "Felony" at least before it can be declared "Treason." 1 H. IV. Hall killed the Duke of Gloucester, &c. and the killing John Imperial were declared Treason, but the offences were Felony first. I would have any man tell me whether ever any thing was declared. Treason that was not Felony before. The Statute 1 E. VI. and 1 Mary plainly repeals that power declared and expressed in 25 E. III.
Sir Harbottle Grimstone.] This Gentleman is altogether in a mistake. What he says is not applicable to the case before you. He says, "it is dangerous to declare that Treason which was not Felony before."—Taken down to Order by
Sir Henry Goodrick.] "Traiterous design" in the Article, is the brand for doing the thing. It will require great time to reduce this thing that the Treasurer is charged with—From the time of the Prince of Orange's Marriage there were great hopes of that Marriage. But the States grew to a distrust of the Prince from the Lovestein party (that came from France.)—In Montagu's Letters some of the Parliament are called, "Malecontents" (and in French they are called "Rebels in Hungary") to carry on the old design. It is our duty to support Monarchy—I move "That the word "traiterous" may be expunged out of the Article; and that "Misdemeanor" may only stand."
Mr Powle.] No man denies, that the declaratory power of Treason by 25 E. III. is in Parliament; but it is objected, "that it was taken away by 1 E. VI. and 1 Mary &c." Those Statutes took away only all such Treasons as were made since 25 E. III; but not the declaratory power in Parliament. The Statute of banishing the Spencers is printed under the name of Exilium Hugonis; "1. They encroached to themselves Royal Power, taking the management of all affairs upon them." "2. They defeated good Laws that were made." "3. They took upon them putting persons out and into Offices; particularly putting in Judges not conversant in the Laws of the Realm." (Some called out "So was Baron Bertie, the Treasurer's brother-in-law.") The King and the Realm are named distinct in that Statute; and for these offences they were banished. In the 11th of R. II, the Duke of Ireland and the Archbishop of York—Lords appellants, &c. and the Commons joined in the Judgment: They were judged upon Impeachments, relating to the King's house, &c. and the Kingdom; sending Letters to the King of France under the King's Seal. The Duke of Ireland raised the Cheshire men, &c. and this was judged "levying War against the King." These are the special Articles which were judged Treason. But there is one case beyond all dispute—17 R. II. Sir John Talbot conspired the death of the Duke of Lancaster; which was judged Treason—But that offence, unless judged Treason in Parliament, was not so much as Felony before. 22 Hen. VIII, Richard Rose, Cook to the Bishop of Rochester, put poison into the pot of pottage which his Lord should have eaten. It took no effect upon his Lord, but upon the poor people that were served with it at the gate; which was judged Treason. The Holy Maid of Kent, Elizabeth Barton, said, "If the King took' not Queen Catherine again, he should die, &c." which was declared Treason in her and all her accomplices—But I would be tender in not letting Treason loose too frequently, lest we know not whom it may devour. Here is no determination of the thing. Every man has his Vote and Reason. I wish it may be otherwise. But now I have told you my Reason how I shall give my Vote in the House.
Serjeant Crooke.] The times of R. II. were troubled times, but all those Judgments were repealed. Before that excellent Statute of 25 E. III. there were varieties of Treasons, as they were judged; but all Judgments, after that Statute, were in Parliament, but generally offences declared Treason were Felony before. The offence of the Bishop of Rochester's Cook, in poisoning the poor people, was Felony before. The great forty Articles against Cardinal Wolsey were not proditoriè but ended all in Præmunire, and mostly they were for causes ecclesiastical. But as for binding supreme Power in future Parliaments, without doubt, King, Lords, and Commons, may do it. But whether proditoriè—That makes the Judgment Treason. The case of Lord Strafford was levying of War, &c. and that was alleged then, and Lord Clarendon's case—When there are other crimes that do strengthen the offences. There is not one declaratory exercise of that power in Parliament, since 1 Mary. And if I cannot be shown any, I move that the word "traiterous" may be left out of the Article.
Mr Leveson Gower.] I would not provoke the King, by this way of proceeding, to govern by arbitrary Power and an Army. I would know why the Committee have not dispatched the Articles against the five Lords in the Tower, that they may be tryed. (He was called, by many, to the Bar.)
Sir Thomas Lee.] I will give Gower satisfaction why the Committee has not dispatched the Articles against the five Lords. The fright of an Army not to be disbanded, when there was an Act of Parliament and Money given for it, has hastened this Impeachment against the Treasurer. The leaving the word "proditoric" out of this Article, is like leaving "felonicè" cut of an Indictment of Felony. If you leave out the word "traiterously," the rest of the Article will prove but pepper and vinegar sauce for roast beef: As was declared in the case of Sir Samuel Barnardiston, for the malfesance of the Sheriff in making a false Return.
The Question being put, Whether the word "traiterous" should stand in the first Article, Sir John Lowther and the Compiler (fn. 8) were Tellers for the Yea's, 179; Lord Latimer and Mr Coke for the No's, 144.
Little was said to the second and third Articles (fn. 9).
Article 4. "That he is popishly affected; and hath traiterously concealed (after he had notice) the late horrid and bloody Plot and Conspiracy contrived by the Papists, &c."
Mr Bennet.] This is only the difference between Coleman and the Treasurer, that Coleman dealt with the King of France's Confessor about Money to bring in Popery, and the Treasurer dealt with the French King's Ministers for Money. The consequence whereof was a standing Army and Popery.
(The Speaker said privätely to some of us, "That the Treasurer was no more popishly affected than he was; on his conscience.")
Lord Cavendish.] There is ground for this Article, by what you have heard from Dr Tongue at the Bar.
Sir John Ernly.] From the 14th of August to September the Plot was not concealed, but was under the more privacy for better finding it out, by the King's command and the advice of Dr Tongue.
Mr Harbord.] That Gentleman, Ernly, knows that he has signed several Pensions to Papists, by the Treasurer's Order, and you yourselves shall see the Records of vast sums paid in Pensions to Papists.
[Resolved, That the Lord Treasurer be impeached upon this Article, 143 to 119.]
The rest of the Articles were not much contended (fn. 10). [And Sir Henry Capel was ordered to carry them up to the Lords on Monday.]