Grey's Debates of the House of Commons: Volume 7. Originally published by T. Becket and P. A. De Hondt, London, 1769.
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Saturday, April 12.
Sir Thomas Meres.] I was at the Conference, and I observed that the Lords who managed it, did not open the Bill nor the Amendments, and so I would do by them. Their reasons were opened only in a general discourse, and not by particulars.
Colonel Birch.] Now you resolve to adhere. I therefore desire that, when the Bill is carried up to the Lords, they may know that the alteration of the times, &c. is agreed to. And then there can be no incoherence nor disunion in the Bill.
Sir Thomas Lee.] I move to send to the Lords for a free Conference, to convince them, that the Bill is very well as it is, if you agree not to the Amendments; and if the Lords should fully agree, &c. then you may send for a Conference barely for amending "the 15th of April, &c."
Colonel Birch.] After you have voted to adhere, you never give Reasons why, and I submit it to Lee's second thoughts. But you may desire the Lords to make the day consistent with the coherence of the Bill.
Mr Powle.] Your answer must be to the Expedient. For they say, "Your Reasons are unanswerable." But the reason they would have you conjecture, you may pass over, and tell them, you rely upon your Bill.
Sir Robert Carr.] There are several precedents of altering the day, as is moved, the full matter being agreed. In the last Parliament, it was done in the case of the Tax, and in Sir John Coventry's Bill. See the Journal.
Monday, April 14.
Sir Thomas Stringer, Serjeant, acquainted the House, that the five Lords in the Tower, upon their desire, have obtained an Order, that they should have Copies of the Records and Examinations in the Lords Journal, being the King's Evidence.
Mr Powle.] I would consider, whether persons impeached cannot have a Copy of what is matter of Record. It seems strange, that the Lords should enter Evidence into their Journal. I would have a Committee to examine where the error is, and how it comes to be entered, for the matter is but what may be had in every Bookseller's shop.
Sir Thomas Lee.] It is strange that the Lords, being a Court of Judicature, should enter all the Evidence; and for the Lords in the Tower to have liberty to transcribe all, is a thing of a strange nature.
Sir Henry Capel.] The Commons being accusers, I wonder the Lords should have Copies of the Informations against them. It is against the nature of all Courts of Judicature, to have Copies of Informations delivered to persons accused.
Sir Francis Winnington.] It will not be denied, I am certain, that such an Order is entered, &c. The Plot is concerning the whole Government. The Lords, in their legislative capacity, may enter into their Journal what relates to it, for general information, and the good of the Government. But what is entered, as examinations, they cannot have Copies of, for they cannot so much as have a Copy of the Indictment in any Court of Law. The Lords in the Tower desire this, to avoid circumstances of time and place. But take this as done either way, in a legislative, or judicial way, it is very irregular.
Sir John Trevor.] Information being given of this to the secret Committee, Mr Clare, their Attorney, was employed to search the truth of it, and till he makes his return, you have no assurance of the thing.
On the Militia.
Sir William Coventry.] The posture we lie in, is very deplorable and dangerous. The French King, by his influence, is Master of all Christendom, and it is the fate of this Nation to be defended with few alliances, or none at all that I know of. Where this storm will fall, it concerns every man to provide for himself; the French King having made Peace with Spain and Holland; and those who are not parties in it, have little to defend themselves. What will the French King do with his men? If he disband none, and he consent to lie under this vast expence, it is not for nothing. The wisest thing for the French King to do, is to employ them where they will raise him fewest enemies. And where can he have the fewest but upon us? Do you think that Germany and Italy will concern themselves in our quarrel? They will be glad he is employed in another place. Considering the spirit of the French King, all set upon glory; and nothing will fill his sails with more glory, and catch him with that point, like the accession of such a spot of ground as this to the Catholic Religion. The more the Papists are suppressed here, the more it will egg them on to get the French King's interposition. The storm probably will be here, but when it will fall, I know not. Another thing is likely to invite the French to fall upon us, viz. our want of preparation, &c. (and that may make an enemy of a thing of a worse nomination.) Holland is only likely to assist us, but their jealousies are great among themselves, and the French King's great power and influence over them is able to make such an influence, as to retard them, if not wholly frustrate any assistance from thence. In the last Parliament, a War with France was the desire of the whole Nation, and I hope the courage of the Nation is the same still. The Militia of England is 140 or 160,000 men, and if disciplined, the French would not attempt them; and a reasonable Fleet may be set out, not to weary you with the charge, before there be occasion to make use of it. The Papists will not be wanting to expose all the weakness of the Nation they can, &c. Therefore I move, "That a short day may be appointed, to take into consideration the defence of the Nation."
Mr Powle.] I was ever one of those that did not apprehend an immediate invasion from the French, but yet would not leave ourselves exposed for want of defence. I like the Motion well, but I would have it go farther. If we should trust to the land defence only, I should be sorry. Our defence is principally the Navy, that the French may not come at us, but, as I am informed, the Navy is in a very deplorable condition. Pray think of that in the first place.
Mr Secretary Coventry.] People may think, and suppose a neglect; but the French ports have been viewed, and the condition of the French King at sea is such, that unless you speedily make preparation—He has ships in Brest, and all things ready to put out to sea; we have sour ready, and perhaps he has ten. Now he has made his peace with Germany and Flanders, and his troops are going from quarter to quarter, it gives us an alarm. I second Powle's Motion, "That the fleet may be in readiness to keep the French at a distance." If Ireland, Jersey, and Guernsey are not provided for, he may surprize you. You know not which way he goes, nor where his interest lies to make attempt, which cannot be defended without a fleet. There are want of fortifications too; I am loth to tell you where; therefore let there be a day to consider, &c.
Mr Sacheverell.] I wish Gentlemen would a little more debate this matter, before they come to a resolution, for the satisfaction of Gentlemen that are of no better judgments than I am. It seems strange to me (and all know it) that it has been the business of England for some years to greaten France—We had but one man to get rid of, and no talk of any body else. Though we gave Money to be rid of our fears of France, yet I find that, as long as we give Money, the fears of France will be suggested. I would have Gentlemen consider, that we have charged the Nation to what it will bear, and we shall be walked to death. In the last Parliament we were told that all things were ready in the Navy, and it seems strange to me they should be so soon rotten. The Customs pay for fifty men of war, and where are they? The Navy is to come home from the Turkish country, where we made War with Algiers, for Passes, &c. to bring our Merchants to subjection. Are you going to support that Navy that sets all merchandize at will? Will Holland stand neutral betwixt France and us? It may be a while; you have not used them well; but will they come in at all? The War has all this while been but dropping shillings. If you have Holland against you, you are not a match for France. Will you bring the War from your seas?—Clearly, when there shall be such about the King, as will do their parts, there is no danger of France, &c. Now it is the middle of April, and if the French come out, can we have a Navy ready to fight them this summer? And if the Navy be in so good order, as was represented the last Parliament, it is well. It must still be the same men that managed before, that manage things still; clear the decks of them—But to give Money, to be thrown thus away, and now to be told, "That the Navy is out of order"—I will never give Money. Ships out of the Dutch War are brought you to repair. Will you put your Money into the same mens hands that have supported the French King? It is worth the consideration of this House.
Sir John Lowther.] I find that something is still recriminated to hinder the consideration of our defence and safety. It is not the interest of Gentlemen now to put a difference betwixt the King and his people. We have sat all this while, and done nothing but the proceedings against the Earl of Danby. Must not we think of our safety because there are faults? And must we still infer, that Money is to be given? To say, because there are not Alliances made with Holland, shall we lay aside all such considerations? Pray let not this Motion of the Militia be stisled.
Sir Gilbert Gerrard.] When I made the Motion, &c. I as little thought of giving Money as Sacheverell, or any man that moved it. But I would ask, if the French come with their fleet upon our channel with 14,000 men, may they not burn all our fleet? Our channel lies open, and upon that account only I moved to consider the present State of the Nation.
Mr Garroway.] Any man here may consider the danger we are in; and who brought us into this danger? Must we not consider the hands that brought us into all this misery? Must not Gentlemen tell you, that Money was given for ships, and Money given for stores, upon your books? If your Money be diverted from the uses it was given for, and a War made with Algiers, for getting Money for Passes, &c. till you clear your hands of the ill management of affairs, you will do no good. Nothing can hinder the French from landing to-morrow —But the French desire to conquer us among ourselves, as is plain in Coleman's Letters. "Purge yourselves (as Lord Sandwich said) from the French at Whitehall, and there is no danger of them out of France." Go sober steps, and not precipitately to give Money. Let us see the return of your Bill of Attainder against Lord Danby, and the Lords in the Tower; you may else, for ought I know, give Money to bring the French in. When that day comes, I will speak my mind.
Mr Boscawen.] It is worth your consideration, whether the Nation be able to support the charge it is already under. Therefore unless some course be taken to mend the ill management of affairs, you may do some good; else you will throw all away. I see we have no offer towards alliance with Holland. First we made war with Holland upon the Guinea company's account, and then we thrust the French King upon a war with them. I would be glad to understand whether the Money that has been spent, was applied to make alliances to secure us. If we have only a fleet at sea, without any other help of alliance, it will eat us out; and consider, at the same time, how the Money given for the Navy has been diverted to other uses; else all you can do, is to no purpose. Consider how Money arising from the Customs, which ought to go towards the charge of the Navy, has been diverted, whether by pensions or otherwise; else all is to no purpose.
Mr Pepys.] It is easy to foresee a great deal of work cut out for me for another time, and I would not do it in general, but to full satisfaction; that when you enquire into the present condition of the Navy, every one of these Motions may be added. It is natural for you to enquire, what is become of the Money you gave for the Fleet and for the Stores, and what Religion the Commanders are of. I move, therefore, that you will order Thursday for consideration, &c. and that these be the heads of your enquiry, for your satisfaction.
Mr Bennet.] I do intend to give Money, &c. and so I shall save that Motion; but not only that, but I would see what Protestant Ally we have. We have forsaken all but the Popish and the French side. The necessity of the Fleet will make you all beggars, when you pay twelve pence for six pence value, as they manage it. The Hollanders could say, "All their Money is gone, and the way to bring England into subjection, is to make England poor." And as they have managed it, they make you so. As to favouring Popery in the Navy, a Captain was turned out for calling his Lieutenant "Papist," that was so, and I will prove Popery in your Fleet, at the Bar. There is not a man in the Fleet, that has served in the Fleet since the King came in, but was made by the Duke of York. Prince Rupert had not the power to make a Boatswain. Bring us once upon a Protestant fund, but let us never give Supply to be cozened of it by these villains.
Mr Pepys.] This point of Religion in the Fleet, that this Gentleman seems with so much vehemence to assert, and will justify, on my conscience is a mistake. I never heard of it, and it was not in my time, to my knowledge. Pray order it to be heard at the Bar. But that a general reproach should be cast upon the Navy, because the Duke of York named Officers! —The Duke is unfortunate, and with my life I would rescue him. But I offer it to your consideration, whether any Prince was ever fitter to name Officers for the Fleet, than he. From the moment I have been in employment, I never knew that the Duke gave countenance to any one Catholic, as a Catholic. I do affirm, that, by all the care and inspection that could be taken in the Navy, there was not one Catholic in it from top to bottom, as far as it was possible for me to know. There was one only suspected, and he not in the Navy: Since that he is come in, and will submit to any inspection—For myself, possibly Bennet may speak with some reflection. I am the man of England that have passed the most solemn inspection of my Religion. In the devotion and whole tenor of my whole life, I have been as good a son of the Church of England as any man. In the name of God, go on in your inspection, &c. I am so far from suspicion of Popery, that I am sure I shall merit quite otherwise.
Mr Bennet.] Give me your Warrant, and I will fetch the Captain that shall make good, that he was turned out, &c. for calling his Lieutenant "Papist;" and moreover, Sir Roger Strickland is about the Court, &c. And I can tell you of another Captain that has never taken the Oaths, &c. What testimony Pepys has given you of his Religion, was this Parliament.
Colonel Birch.] I am glad to see things change, that we may debate things without the consequence of Money. I take it, that the House will not let the King want Money for public occasions, but they will see how it will be employed, before they part with it. I think we are not disputing now, who are Protestants, and who are Papists: I do not know, for Papists take the Oaths apace, in most parts. You were told, the last Parliament, of ninety ships, and that they were all in good estate, except five or six. I would know whether that be so, when you consider the Navy; and their War Stores sufficient; also at that time, the best of the Fleet was out upon service; where they are, and what they need, that they may be drawn together for your service. It has been observed to you, "That when the Fleet went out, from the Boatswain to the Admiral, they went under the consent and test of the Duke of York." Your business is to enquire whether the course of the Navy is not turned. He that will live in a known sin for nothing, will do any thing for Money. Those who are bred betwixt London and Blackwall, will bring home the Fleet to their wives and children. But tarpaulins are now laid aside, and Gentlemen are taken in (I like them in another employment, but not in this.) As to the charge, and misapplication of the Money, and other particulars of taking tarpaulins, for want of skill themselves that have command, &c. and so increase the charge of the Navy, I would consider that.
Colonel Titus.] Whoever speaks against the management of affairs, has as easy a subject, as he would have a hard one that speaks for it. A Physician that should talk very learnedly of my disease, and tell me of my extravagances which brought me into it, and assure me that I must die, would be very uncomfortable. Suppose I build me a house, and I give my Steward money to buy bolts and bars, and he go away with my money, and buy none; shall I therefore take a resolution to have none, and expose my throat to be cut? Because I am angry with my servants, shall I be angry with my security? I move you for a day to consider the general State of the Kingdom, &c.
Mr Love.] I would be informed what number of the thirty ships you gave Money to build, the last Parliament, are built and launched, and of what dimensions they are? In April last, they were in great haste for the Money to buy timber, else the bark would not run. I would know what Merchants are unpaid for hemp, and whether the Merchant-ships, that were added to the Navy the last year, are paid, and in what Treasury the Money that is not paid lies?
Mr Garroway.] I could have wished, that this present State of the Nation had been done privately to our hands; but I would have the Gentlemen know, that they are to give satisfaction to all Questions debated; and no particulars, but the general State of the Nation, to be considered on Thursday.
Mr Seymour.] I take notice, that something particularly has been said which concerns me, in the employment I am in, as to Money. I have received 470,000l. whereof 70,000 is in my hand, and the rest is actually laid out upon the ships. If you had sooner begun your enquiry, you had been better satisfied. There has been 100,000l. for the Ordnance, &c. and some remains unpaid in the Exchequer.
Tuesday, April 15.
Serjeant Ellis.] "Copies of the Evidence, &c." is a thing that was never done by authority of the Lords; and I do the more wonder at it, the Judges being there present, that they were not advised with, &c. We ought, in this case, to go to the Lords for a Conference, to acquaint them, that all your Evidence is discovered; a thing of extraordinary ill consequence!
"The Lord Chancellor let their Lordships know, that the House had ordered, that the several Indictments found against them by the Grand Jury, should be brought into the Lords House by Certiorari; and that their Lordships may take Copies of the Articles of Impeachment against them; and that they shall have liberty to search and take out Copies of Records and Journals, in order to their defence."]
Mr Seymour.] You are moved, but I would have you do nothing in it, as the case stands. In the last Parliament, there was art used to make a difference betwixt you and the Lords, to frustrate the fruits of both your good designs; and those that gave the occasion must have a great deal to answer for. You have no title to the Evidence the Lords have received—But as to what is consequential, I would have no man refused taking just means of defence, and the Lords have ordered no more. Those that are Judges, never know the Evidence till the parties are before them, and that they know. Is that Evidence in their Journal? Is it Justice, that the Lords can deny their Members a title to their Journal, till they are convicted? Neither is your Evidence concerned; your concern in it is but consequential and remote. I see not how you can take exceptions at it. They have authority "to search the Journals for their defence," and it is a method of Justice you will not deny any of your Members for their justification. I would therefore take no notice of it.
Sir Francis Winnington.] As for the Justice of the thing, there are some crimes and punishments, as to other persons—The Committee have prepared Articles against the Lords; and they represent to you what is for your service. There is hardly such a precedent to be found, that such as are accused of High Treason, should have a copy of the Evidence against them—Orders for Certiorari's and that the Lords should have copies of the Impeachment, &c. and have resort to the Journal! I would know, whether a man indicted for Treason can have a copy of his Indictment? It is always denied, and not to be justified, for a man must plead not guilty; there is no justification of Treason. If any thing arises in point of Law, they may have Counsel. But for the Court to take care of the defence of the prisoner, I never heard of it before. The five Lords may as well have copies of our Evidence, if they desire it, by the same reason. In civil causes, they may have recourse to the Record; but to have a copy of Evidence is without any Precedent. Such an indulgence to these Lords is the greatest conspiracy that ever was, never used in common causes. For them to produce an authentic copy of the Evidence against them, and have the sanction of that Court for this; it was never heard of before, and is very irregular.
Colonel Birch.] In this I would do as wise men use to do; that is, when we cannot help a thing, to let it alone. I would prevent this for the future, for the Lords have fully the matter before them. But enter it upon your Books, to prevent it for the future.
Sir Thomas Lee.] If you enter it upon your Books, and do nothing upon it, as in the Duke of Buckingham's case, the Lords will lay that upon you. I would therefore enter the thing, and your Proceedings upon it, and it may prevent the Lords doing it for the future.
Wednesday, April 16.
Another Message, "That the five Lords in the Tower, have all, in person, brought their Answers to the Articles of Impeachment, [except Lord Bellasis (fn. 1);] and their Lordships have sent the originals to this House, &c."
Mr Garroway.] I think this is well moved, to refer this to the secret Committee. I have heard, that if Lord Bellasis be not arraigned, he can never come to Tryal. I would have the Committee search the Lords Books, to see how the matter stands, and then you may advise farther.
Sir Thomas Lee.] I would not refer it barely to the Committee of Secrecy, where most are not Lawyers: I would rather adjourn the Debate till to-morrow, and give notice, by your Serjeant, to the Lawyers, &c. to attend. I think that will be more for your service, and in the mean time you may have the Journal searched. The Committee of Secrecy have a great deal upon their hands.
Sir William Coventry.] The Committee of Secrecy have been your principal guides in this matter; having prepared the Impeachment, they may take it out of the Lords Books, as an account of the Impeachment, &c. and when that is done, it will be proper for your Debate. Without fitting materials for the Debate, you may take resolutions which may have mistakes in them.
Mr Trenchard.] This being matter of secrecy, and not matter of Law, you may refer it to the Committee, &c. It is but barely the Question, whether five Lords being impeached, and but four arraigned, you should accept Lord Bellasis's Answer, without his Arraignment?
Mr Sacheverell.] The matter is bigger than it seems to be at the present; for no man can show, where any person has been accused capitally, that he has been admitted to answer by Attorney. In your Articles, you set out, "That all the Lords are in custody, &c."And this Lord does not appear to be arraigned. This very error may vitiate the whole matter. I would have the thing debated in the House; therefore I am against reading the Pleas of the five Lords now sent you from the Lords House; for if you read them, they must be entered into the Journal, and so the Plea by consequence will be admitted with all its errors.
Thursday, April 17.
[On disbanding the Army.]
Sir William Coventry.] I am for placing the Money [for disbanding the Army,] in the Exchequer. The failure, when you placed the Money there before, was not the miscarriage of the Exchequer, but it was for want of Commissioners of your own to receive the Money out of the Exchequer; it could not else have miscarried before. What moves me to this is, because we had a distrust of the Earl of Danby before; now he is lodged in another place, to your satisfaction; and for this reason, now the King removes from employment those you have a jealousy of, that we may return our confidence in him again. Therefore I am for the Exchequer.
Mr Secretary Coventry.] I have often heard, that the Government of London was made in conformity to the Kingdom of England, but not the Kingdom of England conformable to the Government of London; the Lord Mayor representing the King, the Court of Aldermen, the House of Lords, and the Common Council the House of Commons. And there is the same reason that the Chamber of London should not give patterns nor examples to the Kingdom, in having this Money deposited there. The last Parliament would not place the disbanding Money, &c. in the Exchequer, for no other reason, than because they could not confide in the Lord Treasurer—You had a diffidence in him that did govern the Exchequer. Suppose you apprehended that the Benches of Judges were ill furnished, would you not go to Law again if they were well filled? Consider the importance to the Kingdom, that the Army should be disbanded, and the reputation of it, and at whose door it lies. Now you broke upon this very point, the last Parliament. Let it not lie at your door, the not disbanding the Army now. Let us put off this fear of the Army, and put the Money into unblemished hands. Let it not lie at our doors.
Sir John Hotham.] I was against placing it in the Exchequer, but now I am much more; because we have been cheated there. And though the jealousy of Lord Danby be removed, yet think you there are not more about the King, to give you jealousy, &c.? Have they not rode all upon one horse? When an Act of State has been opposed to an Act of Parliament, men dare still offer at it. Yesterday you passed over those who broke your Act, in keeping themselves in arms after the Act had passed for disbanding the Army, without any punishment or brand upon them. I cannot believe, but that those who advised the keeping up that Army will yet fetch the Money out of the Exchequer, and may be made useful to force it out of the Exchequer. When you are made so poor that you cannot creep, then the Army will pay itself. I hope it will never be said we shall be cheated again, as if both the young Members, and the old, had a right to be cheated. Therefore I am against placing the Money in the Exchequer.
Sir Herbert Croft.] This Debate is as warm, as if there was a design to raise a difference betwixt the King and his people.—(Taken down to Order by Sir Harbottle Grimstone, who took offence at his words.) He goes on and says, I am very sorry that I have made so ill a step as to give offence to the House, or any particular person here. I supposed that the sense of Hotham's words was a reflection upon the young Members. I say, it is the only interest of the King and the Nation to have the same concerns. I said, "That this Debate was warmly carried on," and putting this Money into the Chamber of London, is setting the King's Exchequer different from our Exchequer, as if his concerns and ours had no coherence. The interest of the nation is not maintained without a mutual correspondence and concurrence of King and people.
Sir John Hotham.] To Order. I suppose Croft did not hear me, or did not mind me. I said, "There were idle rumours, from idle persons, of the young Gentlemen of the House, &c." but as for the heat, &c. whoever meddles with as much gunpowder as will serve an Army, may be warm.
Mr Sacheverell.] I blame no Gentleman that differs from me in opinion. I hope he will give me the same freedom that I shall give him. It is urged, as a thing desired both by the King and people, that the Army should be disbanded. If so, why should any Gentleman be against it for the same end? In the Exchequer the Money has not been employed, &c. in the Chamber of London it has. It is said by Secretary Coventry, "That the City is a representation of the Government, &c. and that the Chamber of London should not give patterns and examples to the Kingdom." But that is a great mistake. I hope it is no fault in the State to imitate the credit and trust of the City of London. There is a difference betwixt giving the King other Money, and this, to free ourselves from a cheat. We have had this done in Edw. IV's time, and no exception taken at it then; and every County of England had their own Treasurer, in the nature of the Chamber of London. In King James's time there were Commissioners, &c. but what effect had it? No more than we had in the Exchequer now; the Money came into their hands. But what works with me, is, that if the chief Minister should advise this Money for other uses, what Commissioners of the Treasury dare do the contrary? The Exchequer, you see, has done its duty, but other Officers have not; and it is no reflection upon the Exchequer to place it in other hands, having been done in all Kings ages; therefore I am for the Chamber of London.
Sir Thomas Meres.] The Treasury is better managed by Commissioners, than by a Lord Treasurer, especially when the Lord Treasurer is the sole manager of affairs of State. When these Commissioners have committed a fault, we will trust them no more; but consider where you were deceived; mend the error where it went. It went amiss that the Commissioners were not to take the Money out of the Exchequer, who were not to part with it for any other end than the Act designed it for. Pass your Bill so, with power to the Commissioners, and I cannot believe they will part with the Money till the thing be well done.
Mr Seymour.] Whether these Impeachments of the Lords may be voided by Writs of Error, one Lord having answered by Attorney, is the subject of your Debate. Matters of Impeachment criminal, and for Misdemeanor only, are very different. In Misdemeanor the Lords are Tryers and Judges. In Criminal they are not, till the Lord Steward is chosen. The parties are not arraigned, till they are brought before the Lord Steward, and hold up their hands, &c. Suppose any of these Lords should die, could you not then proceed? Is it not the same case, if there be a disability of appearing? If upon the Arraignment Lord Bellasis comes in, it is sufficient, and there is no Error in the Proceedings.
Mr Sacheverell.] I think this case is like one that had an effect you would not have. It was that of Roger Mortimer, who was not brought to the Bar, and charged; and he had his whole Attainder reversed (for Error) and all his family restored, and he acquitted (fn. 2). If you will make another Precedent, you may.
Serjeant Maynard.] Clearly, if a man be so sick, that he cannot come to the Bar to be arraigned, he can never have judgment of death if he be indicted, and if he be not arraigned where the Common Law implies him in person, he must appear in person. It is strange for Lord Bellasis to think his life in question, and he not come to answer his charge. But sometimes the Court swears Physicians, to give the Court an account of the person, whether he be in condition to appear. It is true, as is said, "That they are always tried by a Lord Steward." But their Charge, their Answer, and their Arraignment are before the Lord Steward comes, &c. Lord Bellasis is not yet arraigned. I have known, that, when a person could not come, he has been brought in a chair to the Bar, to answer. It is clearly erroneous in the proceeding, and an acquittal of the person, though guilty, if he come not to the Bar, &c.
Sir Francis Winnington.] I know it is the rule of Law, that when a man is capitally accused, nay, where the crime will amount to corporal punishment, he must appear in propriâ personâ, &c. He cannot get an Attorney to be hanged for him, or punished for him. Lord Bellasis, because he cannot come in person, has sent his Plea in writing, and the Lords are careful to send all the Lords Pleas to you. In Law, there are several offences. The Treason of one man is not the Treason of another. In the case of the five Lords impeached, if this pass, that one is sick, and not arraigned, they will never come to judgment. There are Precedents, that men have been brought in their beds to the Bar, in propriâ personâ. I take the Proceedings, &c. to be altogether erroneous, to take this Lord's Plea by Attorney; and a Writ of Error may void the Attainder. As to the matter of Arraignment, it is always in Court, before the Lord Steward has his Commission. If he have a Pardon, the Lord Steward sits not. The Lord Steward never sits till issue be joined. The Report from the Lords Journal is, "That there is an Order to assign them Counsel." I would know, when ever there was an Indictment for a capital offence, that ever the Court assigned Counsel before matter of Law did arise? It may be they may have Counsel by connivance; but not by Order of Court. This proceeding being irregular, the Question is, what is to be done upon it? If all appear personally but Lord Bellasis, then you divulge all your Evidence, and so must try Lord Bellasis over again. Therefore it is proper, either by Message, or what other way you please, to acquaint the Lords with it, that we may come clearly to the fact, and have Justice.
Serjeant Maynard.] Counsel is never assigned, but at the allegation of the party indicted, that there is matter of Law in his case, and the Counsel, at the peril of his head, cannot advise upon matter of fact; for then he is an adviser of Treason. Advice is only for "matter of form," but the Counsel cannot give instruction "in point of fact," for their defence of their Treason.
Mr Hampden.] It is my duty to inform you, that the Lords, upon their Book, &c. have assigned Counsel to matter of Law, and not of Fact. But there is no assignation made to what point of Law; and so Lord Bellasis is assigned Sir Thomas Skipwith and Mr Saunders, as the other Lords had theirs upon the same request.
Sir Francis Winnington.] Some Quæstio juris must arise upon the defence of the prisoner; upon assignment of Counsel, but not before Tryal; and, I think, the Lords, in assigning them Counsel, have done irregularly.
Serjeant Ellis.] As to the Tryal of Commoners, they cannot have Counsel, &c. but to matter of Law, and they are to tell the Court to what Point of Law, &c. When that is told in general, the Court gives them that part of the Indictment, and with the Copy of it assigns them Counsel to argue it. I doubt you will find precedents that the Lords have allowed Counsel to draw an Answer to an Impeachment, as in Lord Strafford's case; and Counsel to be by, at the very Tryal. Counsel was heard to the point of multiplying Treasons, &c. As to Lord Bellasis's case, if you admit this Answer by Attorney to be an Answer, it may so fall out, as to be none at all. If it fall out that a man be in so much danger of death, &c. you must put off his Tryal. The first step to Tryal is to arraign, and he cannot plead, but in person, in both criminal and capital causes. A man must receive an outlawry in person. Sir Timothy Reed was ninety years of age, and he was outlawed upon the default of repairing a highway; and he was brought in person to reverse the outlawry. This was but an ordinary case, and he was brought into Court in a litter, upon mens shoulders. In the case of Roger Mortimer, who neither appeared to answer nor had Arraignment, the Attainder was repealed— but he never appeared at all—If you proceed against the four Lords, and not against Lord Bellasis, that will be no Error at all; but see where the case is; your Evidence is joint, and so interwoven with that against the rest of the Lords, that, if it be against the four, it is against him also. If Lord Bellasis appears, then you must go over all again, and your Evidence will be divulged before he be tryed. I would therefore go to the Lords, to represent to them, that their Court should be a precedent to all Courts, and desire their Lordships that Lord Bellesis may appear in person, &c. and make Answer.
Mr Sollicitor Finch.] I propose it to you, whether a Conference with the Lords in this matter will not retard the Tryals, &c. and not expedite them. I agree that a person arraigned must plead in proper person, and suffer in person; but whether this be Arraignment, is another Question. Every man must be arraigned in the Court he is tryed in. He does not here hold up his hand at the Bar. He has only given in his Answer, what he will insist upon. Lord Bellasis cannot be tryed without personal appearance; and when the Lord Steward is appointed, then he must hold up his hand at the Bar. In point of Error, you may proceed against the other four Lords without Lord Bellasis. An Indictment of twenty for one fact, is of several men, and they may have twenty Juries, a several Record against every one of them, and several Pleas. In point of prudence, I can say nothing to that, how far the Evidence against the other four will be divulged to your prejudice, who are prosecutors. But why should you not prepare your Evidence to proceed upon them all? The Court will not force you to hasty proceedings; but by that time your Evidence is ready, the Lords may force him to appear. I move, therefore, that you will cause Evidence to be ready for Tryal, &c.
Serjeant Mayuard.] I would not have the House misled in matter of Law. I would have Finch answer me, whether Lord Bellasis must not plead before he comes to be tryed by the Lord Steward? The Process is not to be tryed, but to plead guilty, or not guilty, and issue must be joined, before he comes to the Lord Steward. Arraignment is only his being brought to the Bar, to confess or deny, &c. If you try Lord Bellasis alone, all your Evidence will be divulged before, in the Tryal of the four Lords. If you give liberty to persons that are to be tryed to know what is proved against them, and then to give answer, they will have more privilege to destroy Religion and the Government, than they have in the Tryal for a two-penny trifle.
Mr Hampden.] I pretend not to the knowlege of the Law, but I may judge a little of things, by reason. If you consider what the Arraignment is in the Lords, &c. you may easily know the manner of Process. You are as a Grand Jury; and the Lords are in the nature of a Jury and Judges. The Indictment is read to the Lords, the prisoners, and they are to say guilty, or not guilty. But instead of that, the Lords have given them time to put in their Plea. But when the prisoners come again, they come in the nature of being before a Jury: The Indictment is then repeated; here is your charge, and there is your Answer. Then comes the Question, Whether it be a good Plea or not? And so you are past the Arraignment. Now the Question before you is, "Whether in Parliament they ought to appear in proper persons, &c." The objection is great. Those that have not been called to answer —Whether that is not a sufficient process, being called to answer? In the case of Cromwell Earl of Essex (in Hen. VIII.) he sent to advise with the Judges, "Whether an Attainder could not be in Parliament, and the person not called to answer his charge?" The Judges said, "That the Parliament was an high and honourable Court, and would do justly, and that it was a Parliament-case, and they could give no Answer to it."
Serjeant Ellis.] I would gladly know what to do in this case. If you say that Lord Bellasis's is no Answer, then you ask whether he must not answer in person; and then you cannot reply to it. If the Lords take it for an Answer, and you take it for none, then the Lords and we differ in the matter: Cromwell's case, in Hen. VIII. was of an Attainder by way of Bill. The Question was upon an Act of Parliament, against a man never called to answer his charge. The Judges said, "They hoped the Parliament would never do it;" and Cromwell was the first man that suffered by Act of Attainder who was never brought to answer. I think this of Lord Bellasis is no Answer.
Sir William Pulteney.] The Question is, "Whether an Answer upon such a disability, &c. be sufficient? &c." Certainly it is no legal binding Answer, and certainly no Judgment can be upon it but by Bill, &c. in case he come not to answer, &c. As for this Answer, it is impossible it can be an Answer. When this Lord is brought to the Bar, he may plead what he pleases; he may vary from this, and put in another Plea, and this will be but a piece of waste Parchment. I would desire a Conference with the Lords, and let them know, that this is no legal nor binding Plea, and they can give no judgment upon it, but by Bill.
Mr Powle.] I acknowlege I am unprepared to speak to this Question; but what occurs to me, I shall present you. I agree, that no man can be tryed, but in proper person, and so this is Arraignment at Law, &c. But in Parliament, the Plea being by writing, there may be a difference, &c. When the Plea is drawn, and the Party's hand to it, it may stand; but when he pleads by word of mouth, and in proper person; there is so great a distinction between parliamentary proceedings, and those of inferior Courts, that it will much difference the case. Why this Plea will not do, with his hand put to it, I am yet to seek. No man absent can be tryed for his life. In the precedent, now cited, of Lord Cromwell, &c. there was a particular Bill of Attainder that condemned him, and he was never brought to Tryal. In the case of Roger Mortimer, in Edw. III. he was judged and condemned by the Lords, and never brought to say any thing in his defence (fn. 3). This was so much against natural Justice, as well as course of Parliament, that it was a sufficient ground to reverse that Judgment. There are but these two precedents of persons condemned unheard, and I hope there will never be more. I make a great distinction betwixt an Answer subscribed, that they will stick by, in writing, and a bare verbal Answer.
Sir Thomas Meres.] The Order of the Lords is, "That the five Lords shall send in their Answer." I speak it, to show that their Answer may come by another hand. I desire you will see farther, whether Lord Strafford was not arraigned before the Lord Steward.
Mr Hampden.] The four Lords Answers being called for in the Lords House, and not come, they were sent for in person; but Lord Bellasis's Answer being in writing, he was not sent for, but his writing accepted by the Lords.
Mr Seymour.] I shall offer something as to method. This relating to the Lords judicature, I would be tender, if the nature of the thing would bear it. Usage of Parliament is Law of Parliament, and what is right, is right to each House. You cannot be too cautious in taking away power from them that will never want will to disturb the public Peace. I would have one instance given, that ever any man was arraigned before the Peers sitting in Parliament; (which is no proper Court to judge them.) The Chancellor says, "The Impeachment is brought up, and they are ordered a Copy of it, and they require time to give in their Answer, &c." As long as the Chancellor is in the Chair, the Lords are in their Court of Parliament. In criminal matters, &c. the Lords are in the nature of a Jury, not of a House of Lords, and they are Judges of matters of fact, and possibly of matters of Law. I would refer this to a Committee, to enquire into the manner of proceeding in these cases; and, if it appear that the Lords have committed Errors in their proceedings, they will go in another method; and till then, you are not ripe to take notice it to the Lords.
Mr Garroway.] What would you name a Committee for, when Gentlemen have all declared their opinions, "That if this way of proceeding be admitted, &c. the Lords may have Writs of Error to destroy all your proceedings against them?" As I am informed, when Lords are tried in full Parliament, there is no Lord Steward.
Serjeant Ellis.] Whether the Lords are arraigned again, or whether there is to be a High Steward or not, is not the Question. But this is already their Arraignment, and this is their Plea. If they are arraigned again, they are asked, what they have to say? And they may put in a new Answer, and so all your time may be lost —But they proceed upon this Answer, from which they cannot vary.
Sir Francis Winnington.] The Reporter said, "That, as soon as the Answers were read in the Lords House, they sent them to you." The Lords have not yet entered their Pleas to be recorded in their Court, and so they are not conclusive. If they be entered, then they are sent down to you, to know whether you will reply, or demur. I doubt that Lord Bellasis will not agree that to be his final Plea; for he has in effect answered nothing; so that the Lords have not sent them to you to reply. In Tryals in interval of Parliament, and in pleno Parliamento, the Clerk of the Crown says, "You have pleaded so, and been indicted so, and you put yourself upon your Peers." If any of the Lords should say, "I wave my Plea," what a condition are the Commons then in, for they cannot come provided to prosecute? But since the Lords have not entered these Pleas as final Pleas, you may consider of it, and if the Lords have been irregular in their proceedings, you may desire a Conference, and say, "That Lord Bellasis has not appeared, and that the matter will be erroneous if we proceed." It may be the five Lords have perplexed this matter, and may say, "Lord Bellasis is sick, and we will plead, and so the Evidence will be piece-meal." First, Lord Bellasis does not legally appear, and next, as our Charge is intire, so the Lords may not answer it by piece-meal.
Ordered, That it be referred to the Committee of Secrecy to examine the manner and ways of proceedings in Parliament, about Lords being arraigned, and whether a Lord can be arraigned without coming in person, &c.