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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Thursday, May 1.
Sir Thomas Exton reports from the Committee, to whom the Consideration of Doctor Nelson's Petition was referred, "That they are of Opinion that the said Doctor Nelson be discharged from his confinement, and be put out of the Commission of the Peace."—He was committed April the tenth, at a Noble a day fees.
Colonel Titus.] We cannot give too great discouragement to the Clergy, who meddle with your Liberties, things they do not understand. It is the business of the Clergy to preach Christ, and him crucified. I do not believe he wrote the Book for an exercitation barely, but in hopes of a good living. I would have him find sureties for his good behaviour, and so be discharged, paying his Fees, since he has lain in the Serjeant's hands. But for his former life, to have that ripped up, it is not for your honour. I would have him put out of the Commission of the Peace—He thinks himself sufficiently punished.
Colonel Birch.] If for but a small offence a man must be brought to the Bar upon his knees, much more for so great an offence as writing such a Book, &c. Yet I am never against your mercy; but I would have his discharge as notorious as his crimes, and brought to the Bar. No person in custody but what must be so discharged.
Sir John Trevor.] If you bring this man upon his knees to the Bar, you have, in effect, all the Clergy of England upon their knees, &c.
Sir Robert Carr.] You were told that, upon Breach of Privilege for arresting a Member's servant, the party is brought upon his knees at the Bar. This is another sort of crime. You punish this Doctor, not for Breach of Privilege, but for a thing of another nature. This is a kind of Judgment, and you may make steps too far in it, and you have dismissed persons in the like case, without coming to the Bar; especially when you let the Printer escape.
Colonel Birch.] One part of this Doctor's Letter is of a Gentleman called Montagu, &c. who is of the House, and I think that is a Breach of Privilege. That fully answers Carr, &c.
Sir Thomas Clarges.] For any Person to arraign your Member, or what you are concerned in here, is a Breach of Privilege. Doctor Maynwaring had a form of words to subscribe at the Bar upon his knees, for the like offence. Doctor Nelson's Letter has marked out several letters of names, and I believe my name is one. Maynwaring was afterwards promoted to a Bishoprick, and it may be this man may be promoted also.
Mr Seymour.] It is not usually known, that a Debate of this nature should take up so much time, when you have given Judgment upon him already, by committing him to the Serjeant. Coming to the Bar upon the knees is never dispensed with on such an occasion, unless the party have some extraordinary merit to recommend him to your favour. It was never well for this House, since you have been so much Courtiers, as to be complimented out of your right; you reproach yourselves in not doing it. This Doctor is not so great, nor you so little, but that you ought to bring him upon his knees.
A Motion was made, "That the Chancellor be desired to turn him out of the Commission of the Peace."
To which one said,] The Chancellor has no power to turn any man out of the Commission of the Peace, nor put in any. He has turned out and put in too many already. He has no authority to do it; it is the King; and I desire the King may be moved to command the Chancellor to turn Doctor Nelson out of the Commission of the Peace.
Colonel Titus.] If the Chancellor have such an extravagant power, I hope the King will have a new Chancellor. We know what sort of men have been turned out and put in. I know not that the Chancellor has any such power, but I would not have the House of Commons own any such power.
Mr Powle.] The Statute of Hen. V. gives the power of nomination of Justices of Peace to the King's Council. In that of Hen. VI, there is power given to the Chancellor, of his own authority, to put out men for insufficiency, or that are not men of Law sufficient to carry on the Justice of the Nation; but by appointment of the King's. Council, they are to be put in. I would therefore address the King about it. I hear the King has thoughts of a review of the Commissions of the Peace of all England, to alter the Commissions, and put in men fit.
Sir John Trevor.] I was one of those that attended the Chancellor about putting Mr Milborn out of Commission; we did not desire him to turn Mr Milborn out, but Mr Arnold was turned out; and we went to enquire who it was turned him out, and then resolved to go another way; for it was in vain to go to the Chancellor, when Arnold was turned out by so high a hand as the Duke of York.
Mr Bennet.] I would not only address the King for this man, but all, that we may have such as will act protestantly, and not popishly.
Sir Trevor Williams.] This Gentleman was turned out without one Article against him, and a Popish Justice put in.
Sir John Trevor.] After a long discourse with the Chancellor, he said, very mildly, "That Mr Milborn should be turned out of Commission."
Ordered, That an humble Address be presented to his Majesty, by the Members of the Privy Council, to desire his Majesty to command the Lord Chancellor to put Doctor John Nelson out of the Commission of the Peace.
Friday, May 2.
Doctor Nelson was brought to the Bar, and there kneeling,
The Speaker said,] You are justly under the displeasure of the House, for meddling out of your sphere, and you are more to blame for meddling out of your calling, in personating a Jesuit in the Book you have written. What you have done was beneath the gravity of your profession, and a desertion of your calling; but the House presuming that this will be a warning not to do the like offence again, and rather desiring your reformation than your ruin, they do discharge you, and you are discharged, paying your Fees.
Saturday, May 3. In the Afternoon.
A Message from the Lords, by Mr Justice Atkins, and Mr Justice Jones, viz. That the Earl of Danby, being this day brought to the Bar, made the Answer following, by word of mouth only, viz. "The Plea, which I have put in, was put in by the advice of my Counsel; and my Counsel tells me, that my Pardon is a good Pardon in Law; and advises me to insist upon my Plea put in: Which I now do; and I desire that my Counsel may be heard, to make out the validity of my Pardon (fn. 1)."
Sir John Knight.] This Pardon of the Earl of Danby, for the Articles he confesses, will have no effect before his Tryal, bringing in Popery, to be an opportunity to subvert the Government of the Nation—The five Lords may have the same Pardons; but I hope God will bless us from this Pardon, which does no less than pardon all those crimes he stands accused of. I know nothing of Law but self-preservation: I would therefore move, seeing there is such a Pardon, to bring in a Bill of Attainder against him. He renders himself, and is no Traytor, for he pleads his Pardon. Lay your hand upon your heart, and consider that Danby is a bucket to the ocean in comparison of the safety of the Nation, and let us do as we ought to do.
Mr Williams.] The Plea of the Earl of Danby is full of equivocation. This is a plain proposition, whether he will be concluded by his Pardon. It is a simple proposition, in opposition to a complex one, not by Ambages to answer; but will he abide by it? Will any man take this to be an Answer?" To speak like a Lawyer, a Schoolman, or a Country Gentleman. Will you be bound by it? A man that has not been truckling with a House of Commons, nor with France, nor the Nation—So long as he has been at the helm, he must know how to give a plain Answer. Danby, as he is a Nobleman, is not skilled in the Law. But when we find by his Answer, that it is by his Counsel; whether they be Jesuits of his Counsel, I know not, but I am sure no Jesuit can give a more equivocal Answer to a plain Question. I am not Parliament-man sufficient to propose what you shall do. Now, whether will you go to the Lords, &c. or lay your hand upon your own handle of Fugam fecit, and go by Bill of Attainder? One or the other you must do.
Sir Francis Winnington.] This great Lord has given you a great deal of trouble. Give me leave to state the case, how Lord Danby stands impeached the last Parliament, and continued in Office after the Prorogation and Dissolution of it; and in the last Parliament as well as this, he craved time to put in his Answer to his Impeachment, and to have recourse to his Papers for his Defence. After a month's time, he produced his Pardon, and pleaded it. This Pardon is of more consequence than an hundred such single Lords. When it was pleaded, the Lords sent it down to you. You perused, read, and debated it, and then sent a Message to the Lords to know, "Whether Lord Danby would rely upon his Pardon for his Plea?" And so you left the case. Danby appears to-day, and says, "This Pardon is good in Law, and he is advised to insist upon it, &c." I humbly conceive, that there are several things in the Message that we must discourse of. Danby says, "that he will insist upon his Pardon, &c." "Insist" is such a parliamentary term as is not absolutely conclusive, but it is a vehement affirmation; but in plain English and common acceptation, he is not bound up by it. The cause is great, and the House is thin. The cause is great, because the Committee can find no Precedent of such a Pardon granted, pending an Impeachment. Next, absolutely, if it be sufferable in the Government of England, that a man impeached of Treason, which he tacitly confesses by pleading his Pardon, [should escape,] (and any man, if such Pardon be allowed, in a high station, may do so,) I put not that value on my birthright that in all my life I ever did. It is the constitution of the Government to have Impeachments against great Lords offenders, &c. and if this be stopped now, by this Pardon, farewell all; and they will still be established in their iniquity without redress. I propose therefore, that if this House be of opinion, that by this Message Lord Danby demurs upon this Plea, let the Commons see what the fate of their interest is. For his Counsel to be heard at the Lords Bar, this is a matter of great moment, if Danby intends to have his Counsel heard, and the Lords will say it is a good Plea—No man can say that the Commons ever pleaded against Counsel, &c. It does not become their grandeur to debate and advocate against any Gentleman of the Long Robe. That is without Precedent. I mention this, &c.—The Commons are concerned, and our Rights to us are as dear as Danby's Life is to him; and I move for Monday to consider of it.
Sir Thomas Lee.] I agree that we should not defer the consideration of this longer than necessity requires; but in the mean time, have the opinion of the Secret Committee. But what will you do, in case he drives you to the necessity of an Act of Parliament? The Pardon, if it be voided, must be judicially, or legislatively; but I would try the first, in the first place. Refer it, &c.
Mr Paul Foley.] I agree that you refer it, &c. till Monday. The Committee were of opinion that the House should join issue, that is, demur; which if you do, Lord Danby must be concluded by it, and he can put in no other Plea, unless cause be shown to the contrary why you should not join in Demurrer with Danby. In Lord Strafford's case, the Commons would not argue with his Counsel; so you refer that and the manner to the Committee, and you need not trouble the House farther.
Mr Williams.] When we first came, &c. there was a Debate whether you would prefer this Lord's Tryal before the five Lords. If you stay till you have a return from the Committee, Danby may be postponed to the five Lords. Danby has declared, "That he will be concluded by this Plea." But says the Party to the Demurrer, "I will not be bound by it." Says Justice Atkins, "The Plea was delivered by Danby by word of mouth, ore tenus, only, and no writing." First, you ought to be satisfied whether Danby will be bound by it, and be concluded by it; if not, you do a vain thing; else Danby will walk in a circle, and he will conjure still. Therefore I would make application to the Lords, &c.
Sir Robert Howard.] There is nothing before you applicable to any Debate, but the validity, or invalidity, of the Pardon; and I believe that may be now, without referring it to the Committee. In this case I would not lose a minute, and I would let the Lords know, that this Answer seems to be ore tenus, and may be denied again by the same mouth that said it. What advantages men propose to themselves by delay, may be great; therefore I would proceed upon what is clearly before you. He desires his Counsel may have leave to make it good; and it is as natural that his Counsel may desert the Plea again. Therefore I would send to the Lords, to know whether this be his Plea, and that it may come under his hand, (and it is a favour to him to know whether he will stand upon his Pardon, or any other Plea,) and know whether he will make a categorical Answer. If Danby will stand by his Tryal, I would know no more, and ask no more, but whether Danly will plead guilty, or not guilty?
Mr Seymour.] The Question is not now, "Whether the Pardon be good, or the Plea," but the Question is, "Whether this be a positive Answer, which he will rely upon?" I would not trouble you now, but that the Honour of the Nation and our Privileges are concerned when this is delayed, and he may have time to turn three Kingdoms into Aceldama—A little alteration of the words may alter the sense. But as we have his Answer, it is evasive and uncertain, and makes it part Plea, and part Pardon. This is so fallacious that we cannot join issue upon it. He asks of the Lords, "That he may have Counsel, &c." and that, as to matter of Law, is a just demand. But in what manner is he to have it, not to join with the Commons, but to inform the Lords in matter of Law, as to the Pardon, &c.? But you come not there to capitulate with the Counsel at the Lords Bar, who plead for their Fees. A Jesuit was asked, whether he was a Jesuit, or no? He said, "That is not a question to be answered, because it is not to be asked;" and it is not to be asked, because not to be answered. You are well advised to ask, "Whether directly he will rely upon his Plea, or his Pardon?
Mr Vaughan.] Matter of Record must be your guide. If the Lords have recorded his Plea, then it is fit for you to go upon it. But if he insists upon his Pardon, and the Court says, "He does insist upon his Pardon," then he positively relies upon it, and insists. We shall never know what we have to do, till you send to the Lords.
Sir Francis Winnington.] I propose that he may be asked whether he will either stand by it, or wave it, for you see Danby will go no farther than he is driven. If we carry our Demurrer to the Lords, then you will send to know whether he will join in Demurrer; so, if you please, the Gentlemen of the Long Robe, in a quarter of an hour, will draw it up. We have his Plea, and so may draw up the Demurrer, and send it up to the Lords, and stand to it.
Mr Williams.] If the Commons had a certain Rule, &c. your sense might go by it; but this is such an Ignis fatuus to follow—There is some cunning man in his practice, that has advised this, and he is laying a trap for you. It is the ordinary course in Westminster-Hall, upon a Pardon being pleaded, the Question is asked, "Whether he will insist upon it?" But now you are upon an Impeachment, and Danby has pleaded, and the Lords are Judges of all this. Therefore, I beseech you, walk warily; let him deal plainly with you, what he will do; if you are satisfied that he rests upon this Plea, I would say no farther. The Lords are Judges of their own methods; what is recording and not recording they judge and we cannot well examine, and must be bound by what they will say. The Lords were in doubt whether this Plea concluded him. The Lords tell you not whether he is concluded or not, by it, but only what he says ore tenus. Take the matter so before you, and you are in a safe way: Whether he is categorically concluded, and whether the Lords take this to be conclusive, if you take it that he is bound by it, then the Lords will tell you no such thing, and they will say hereafter that it is not conclusive; therefore send to the Lords to be satisfied. If the Lords say he is concluded, then you may safely proceed.
Sir Thomas Meres.] I take his Pardon to be his Plea, and his Plea to be his Pardon, and that you are at an end, and that he insists upon his Pardon.
Mr Powle.] I do not wonder that Lord Danby has taken this way, having so great a charge against him, and so little to answer in his own justification, that he has so proceeded. His Plea was put in five or six days ago. I was then of opinion that it was a good Plea. His Pardon being put into the Court, in Parchment, before which he is to be judged, is a good Record, and the Lords only transmitted it to us. Say we, "we will not surprize him in it, and will not conclude him immediately." Only we, as an act of favour of Prosecutors, show the fairness of our Proceedings. He takes four or five days to advise, and now he says, he insists on his Pardon. I take it, that a Parliament is not tied up to those formalities, modo et formâ, that the other Courts of Westminster are. "To rely upon his Pardon," or "insist," there is no disference; they are of the same signification. I think this Plea is as far to conclude him as possible. If you send to the Lords, as is moved, he may give you one or two more evasive Answers. I would therefore send to the Lords to give a Rule of Court in it, and so proceed as if he were concluded by it.
Mr Williams.] See what a noose you are drawn in by Demurrer. You must be bound up by it, by the Judgment of the Lords, and it must be conclusive to the Commons of England. I lay the danger before you. If the Lords give Judgment against you upon Demurrer, you can proceed no farther. The Demurrer is plainly a confession of the fact, and as Danby must be tied up, so must you.
Sir Thomas Littleton.] I speak to Order. You have sent to the Lords to sit: I suppose about the Amendments of the Habeas Corpus Bill, and the Committee have perused the Clause that the Lords added, and passed it with some alteration, &c. and accordingly Sir William Pulteney reported it. See the Journal.
Mr William Harbord.] Before you have any conclusion from the Lords, I would bring in a Bill of Attainder against Lord Danby; for if you bring in a Bill, &c. after the Lords have over-ruled the Demurrer, they give themselves the lie if they pass it. The Lords, we know by experience, kept some Lords in the Tower the last year, for no more than disobedience to their Order, so close, that they were almost killed, and these Lords that are in for High Treason have their liberty to walk about. Therefore I would not trust to the Justice of the Lords too much.
Mr Williams.] If Lord Danby be acquitted by Plea of Demurrer, it would be a saucy thing in us to bring in a Bill of Attainder. A man must be tryed for his life but one way, for the same offence, else it would be unjust.
Mr Powle.] It is a mistake, that if the Lords pass Judgment, Lord Danby is immediately acquitted. But we have an interest in that Judgment, modestly speaking. The Commons required farther Judgment from the Lords than that which they pronounced against Lord Latimer (the Precedent before recited.) When you argued that the Lords cannot give Judgment till the Commons come up to demand Judgment, in the case of Lord Strafford, the Commons, before they demanded Judgment of the Impeachment, brought up a Bill of Attainder against him, when the Lords had the whole matter before them—And that is much more liable to censure than what has been proposed.
Mr Vaughan.] A Pardon is Liberatio a pænâ. But a man may have an action against him that calls him criminal, &c.
The farther consideration of this Debate was adjourned till Monday, the first business.
Monday, May 5. The adjourned Debate resumed.
Sir Thomas Player.] The Law is too hard for me to speak to. I had not the honour to be bred to that Profession, but, with your leave, I shall offer what I have to say, and I hope the effect will be to raise our spirits. I remember that the Parliament has been always called, "A great, wise, and powerful Council." But if by Pleas and Demurrers, Over-rulings and Attainders, the Earl of Danby be let slip through your fingers, and he become a great and a free man, then I am apt to believe we shall be thought, "a weak, a childish, and a foolish Council." If Danby put himself upon a fair Tryal, I wish he may escape. I do not thirst after blood; but if this Pardon be good, what will become of the safety of the whole Nation? If one, another may escape again by the same method. I shall be scarce able to show my face in London; they begin to laugh at me already, out of apprehension that a Pardon, stamped by creation, will set him free. I am concerned for the honour of the House. I do think, that, in the management of this affair, Danby has done what was never done by any man in the world. I think Danby has betrayed his friend the Chancellor—Upon his advice, he gets this Pardon, and says, "He will not make use of it, unless false witnesses rise up against him"—Now after long waiting and expectation, Danby waves all legal means of Tryal, and stands upon his Pardon—But it is "If the House of Commons will raise up false witnesses against him"—I would seriously consider whether there be any way to void this Pardon. I am no Lawyer, but I will offer my opinion. If we cannot get off from this rock, I would rather vote to sit still than go any farther.
Sir John Hewley.] "He is now advised to insist upon his Pardon, &c." I hear it said, that the word "Insist" is not so positive a word, &c. But there is no other signification of the word "Insist," than "to stand and rely upon, &c." Though it be doubtful, it must be taken in the strongest sense against him, and it can have no other legal construction than "That he will rely upon it." It has been said, by a learned Gentleman, "That it may afterwards be voided by Bill." Therefore I would join in the Demurrer, and proceed to Tryal.
Sir Harbottle Grimstone.] Whether this of Lord Donby's be a good Plea, or no, is that which calls me up. I am of the Long Robe, and my opinion is, I think this Pardon is void in several respects, and therefore needs no Bill for revocation of it. If you go to void it by Bill, before you have the Royal Assent, it will take up a great deal of time, and it rests upon us to prove it ineffectual. Now whether it be void, or no? I conceive it is void by the irregularity in obtaining it. We all know, that is clear. there was no Warrant, &c. Signet, Privy Seal, nor Great Seal. Those were thought no compliments, but essential things, and those, we all know, are the legal Warrants for passing all Pardons. But there is another irregularity in this Pardon, &c. past all cure. By the Statute, there is a Recipe, &c. and the Pardon must bear the same date with the Recipe entered now, and therefore it is void, having no date, and so it can take no measure right. As for the illegality of it, I have not yet heard any thing to alter my opinion. It has been sufficiently cleared to the House. There are things which the King cannot do, and that is what is not consistent with the end of Majesty and Government. A common Nusance the King cannot pardon. The Suit of the party in an Appeal of Murder the King cannot pardon. But this is of a higher nature than that which we call "Nusance." This Pardon is "an universal Grievance." Nocumentum totius populi. If a great Favourite, an overgrown Favourite, be too great for Westminster-Hall, and such a Favourite gets the ear of his Prince, by flattery and insinuation; and shall, upon the confidence of that liberty with the King, be emboldened, and made so daring, that he cares not what Counsel he gives the King, to please his humour for the present—And who will reflect on him? for, says he, "Here is my Pardon." If this be admitted, that the King can grant Pardons thus, it is to no purpose to complain; our mouths are stopped with a Pardon. I am of opinion, that if this Pardon had passed with the regularities, yet it signifies nothing, though it had all the formalities. This is to the detriment and prejudice of the whole Nation, which is not in the King's power to pardon. There are things out of the King's power to command, as things against the Law of God, (and we ought to obey God rather than man,) as to do violence to nature, to throw myself down a precipice, I am not obliged to do it. Commands, not warranted by Law, are not to be obeyed. The King is a man, and may be misled by Counsel; but let them look to it that execute such commands. When Counsel give the King such honest advice as is fit, all will go well; but when, by surrendering up a place, all is well, with a Pardon— I say, it is not in the power of the King to pardon an universal Grievance. Whoever gets such a Pardon, I hope, will be hanged, with the Pardon about his neck.
Mr Garroway.] I beg pardon, if I speak now. I am not able to speak to point of Law, though I am satisfied that, take the formalities of the Pardon away, and I look upon it as nothing. It is the first of this nature, and without Precedent, that ever, an Impeachment impending from the House of Commons, a Pardon was granted, &c. If the Lords over-rule the Demurrer, Lord Danby is quit; and this is your short story. If you put all your stress upon this Demurrer, you take a weak course. I am of opinion that this is no Answer from Danby, but an evasion of your Prosecution. His Protestation and Declaration of his innocence is not his Plea. I would therefore send to the Lords, that Danby may put in a Plea that he will abide by, and upon it I would charge him with "imputing the scandal upon the King of the contents of the two Letters to Mr Montagu," for one Article; and for another Article, "the obtaining his Pardon surreptitiously." As for the Pardon, the Arguments against it are pleadable when he is tryed. I would prosecute this business immediately, that Danby may answer what he will abide by.
Sir Thomas Clarges.] This matter is of great moment. Lord Danby's Plea is entered upon Record in the Lords Book. When he came to his Plea, he said, "He would insist upon his Pardon." I would be satisfied, whether, in your Demurrer, you may save to yourselves the irregularity of this Pardon. For ought I know, all the Lords in the Tower may plead Pardons. The King can do no ministerial act. The King could not seal this Pardon himself. The Chancellor should have told the King, when this Pardon was sealed, "Sir, I cannot be present; do what you will with the Seal; I cannot be by to see an illegal act done by a ministerial Person." I am weak in the Law, but am convinced, by Grimstone's Arguments, &c. If this be granted, then the King may do a ministerial act; but it is for that reason void. That which never has been done, cannot be legally done. If it be on Record that no such Pardon has been granted, none such can be. I submit what I have said about the Demurrer, &c. saving the Illegality of the Pardon, &c. But if not that way, then I would go by Bill, and so damn all such Pardons for the future.
Sir Harbottle Grimstone.] I will only speak to the manner and way of your Proceeding. I will tell you my opinion. We need none of these savings, as is moved: Why should we abridge ourselves any way? But go up to the Lords with the whole matter, with the best authority you have for your Reasons, in regard both to King and People, and you must take it for granted, that all those crimes Lord Danby stands charged with, are confessed by his pleading his Pardon; as his raising an Army, and truckling with the French King for Money to maintain this Plot, &c. and then you may allege the want of date of the Recipe. And then, if the Lords adhere to the opinion, that the Pardon is a good Pardon, the last resort is, by Bill to void it. But I do not believe the Lords will be of opinion that it is a good Pardon, and it is not advisable for Danby to put his life upon it. I would have the Lords desired to appoint a day, &c. and Gentlemen of the Long Robe will provide themselves against that time.
Mr Powle.] As to my own particular, I think the Pardon is not good; but the Question is not that now, but what way you will proceed to vacate it. The Reasons are so strong to make the Pardon void, that they need not be farther laboured. Gentlemen seem to be against loss of time, and this of sending to the Lords will lose more. I say, that Danby will "Insist." "Rely" upon his Pardon is all one. It remains only to consider whether you will join in Demurrer, or proceed by Bill of Attainder. As for the Question before you, you have heard all that can be said in defence of the Pardon, and then it is time to make some Resolution. I am as much of opinion as any man, that little can be said for it; but it does not consist with your honour to come to any determination, till you have heard all against it. The Commons will not undervalue themselves, to come and plead with Counsel at the Lords Bar, &c. In Lord Strafford's case, the Commons did not argue pro and con with his Counsel, &c. but they were heard what they had to say; which will be proper, when you come with your Mace to the Lords Bar, to demand Judgment against Lord Danby.
Serjeant Maynard.] The Earl of Danby has both wronged the King and this House; he has put in a Protestation; which, in effect, is a justification of himself, and a diversion of his crime upon the King. He has charged it on the King, and it was unnecessary for him to do it— But to come and tell a story, upon which no issue can be taken, is but a flourish, and no Plea at all. For putting the blame thus upon the King, he deserves as much punishment as he can do. Part of the Report from the Lord Chancellor, about obtaining the Pardon, &c. was, "That he would not make use of it, but in case of subornation against him, &c." By that, he lays an imputation upon you—To get a Pardon, under pretence that he will not make use of it, but in case of subornation, &c. and yet he does for his Plea! As for what is alleged, "that a Pardon, for want of a Recipe, is void;" in Plowden's Commentaries there is a case of no Recipe, and yet the Pardon was good—The Law sets the degrees of Pardons to be obtained by, that it may not be had clandestinely, and the King deceived in it. A man that is to make defence, &c. will do it at several wards. Lord Danby has leaped over all formalities; and this is as a flaw To the main of it, certainly it is a strange Pardon, that in so many hundred years was never yet done before—When not only the safety of the King, but the Commons Lives, and Religion, and all, may be in danger by it! The five Lords in the Tower may have such Pardons, by the same reason, and what then becomes of all your Liberties, &c.? Danby misleads the King, in doing all the ills he is charged with, and gets a Pardon for them, when he has done— He thinks, surely, the thing is so. Great Persons, too great for the Law, and who have done ills by virtue of an exorbitant power, from time to time, toties quoties, by such a Pardon, may defeat all calling them to account. There is no Obstante to the Impeachment of the House of Commons in this Pardon, and it would be worth your considering, whether general words shall extend to a particular and extraordinary case; where the King is not informed of an Impeachment, &c. and goes not in words to it in the Non obstante. But what course will you take? I am a little unready in giving my Judgment. I do not deny that, in those cases, no issue can be joined, when the matter is laid upon the King, and it remains without contradiction. I make but an essay, and am a little doubtful in the matter. To proceed by Demurrer is a little dangerous. And who shall give Judgment in the Demurrer? I think you were well moved to make a Replication to this Plea; the Pardon being got against a known Law, and by false information to the King, and of great consequence, not only to Danby, but to all great Counsellors—And withall, I would allege the things, not by formal way of Demurrer. What is charged against him, amongst other things, is, "getting a vast Estate." You give Money to relieve the Kingdom, and if it falls out that he has diverted the Money to himself, or his friends, it is another Article, and if you proceed singly by Demurrer, you may prejudice yourselves. But if this be a good Pardon, Parliaments are to little purpose. They will get power to do mischief, and heal it by a Pardon, when it is done. Again, I say he has bestowed the Money that the Parliament has given, and we must, by this Pardon, give more Money for him to devour. Some things the King cannot pardon; as a Nusance, whilst actually complained of. The man is indicted; there is not only a fine to the King (Distringatur ad respondendum) but reparation to the people. The King cannot pardon a Recognizance for the Peace; it is the subjects interest to be preserved. How far this is applicable to the case before you, I have humbly offered my opinion.
Sir Francis Winnington.] The validity of the Pardon, and what is the best way for you to proceed in, is the subject of the present Debate. I am one of those that will not reduce the Law and Rights of Parliament to School Divinity, by Arguments of subtlety, and conclude nothing. If we come not clearly to it, but diversify in the point, we may hazard the Nation as much as Lord Danby has done. Without all controversy the Pardon is void. I shall sum up former Arguments only. I shall take it for granted that Danby relies upon his Pardon (and so be repeats his Plea.) Some things have been said, as to the formality of this Pardon, and some Gentlemen would disclaim that, in case of a man's life—" Impetitus, vel non impetitus" in his Pardon, &c. and a Gentleman said, "It may be, the King knows not of the Impeachment of the House of Commons." But I know of none else. But I will wave that, and go upon the validity of the Pardon. In Appeals, &c. where the King has an interest and share in the suit, there the King may bar an Indictment. Where a man informs tam pro domino Rege quam pro seipso, there the King's share of the forfeiture is pardoned only. But where the King has no share, and the King's Serjeant or Attorney General prosecute not, and the King's name is not so much as mentioned, and only by the Commons of England, which the Courts of Westminster cannot punish; it is you that have the interest in the Suit, and all the Commons of England. If what is grievous to the people be pardoned, it is to no end that the Parliament should ever meet. The same Power that made Danby venture on this offence, the same has pardoned him, and I know no farther use of Parliaments, than to give Money when it is asked. If the King has no interest in the Suit, and be no Party to it, and grants a Pardon, &c. there is an end of your Constitution. I dare not offer that violence to my own reason, as to say, that this is a good Pardon. Serjeant Maynard did not make a conclusive Argument, but I will conclude, whether the Serjeant will, or no. In Littleton, &c. it is an Argument, "That the thing is not lawful, because it was never practised"—In Law, not sufferable. But to distinguish it—It is good in way of Plea, but to void it by Bill—But that is a reason why illegal; and never found in a former age, but is so. I will take the boldness to make conclusions from the Serjeant's Reasons—To say that this is no Demurrer, &c. that seems advisable; there is no occasion to plead this, for it was never done before—Now, whether the House of Commons shall go up to the Lords, and say, not as in the common form of way of demurring to a Bond, but all the Commons to say, this Pardon is a monstrous thing, and ought not to be? I cannot say there was ever any Precedent for Demurrer, because there was never any occasion for it—What will you reply upon all Danby's Protestation?—He will say, that is not traversable—But should it fall out, this Pardon ought not to be allowed— It looks bigger than a Demurrer—But if the Lords say, that the Pardon is good in Law, what have you to do? Then you have recourse to a Legislative Bill. Because he has so confessed it, there is no occasion for us to prove it. I cannot blame that Lord, if his life be at stake, for making as good a shift as he can. Life is sweet, and a man will fence as long as he can for it—In the preface of a Bill, may be put, "If such a Pardon be allowed, the Government of England will be destroyed, and the Commons of England cannot be relieved from the exorbitances of great men."—And we shall have Arguments enough to put into the face of that Bill; and if the Lords have a mind to save the Kingdom, as well as we, they will pass it. Pray let us go roundly to work, and have to more tricks put upon us, as have been for these six weeks.
Serjeant Maynard.] I told you, "I could not deliver my opinion positively, without farther consideration, &c." Winnington has concluded for me, but one of his Arguments is weak, viz. "That there is no Precedent that it was ever done before."
Sir Francis Winnington.] I have learned more from the learned Serjeant than any man. We both agree, though in different ways, and I agree with him, &c.
Mr Williams.] It is incidental to our profession, that we love to spare a little. I perfectly agree with Winnington in his Argument. One Question is, "Whether the Pardon be illegal?" And another, "How the Pardon was obtained?" There may be reason to void it by Scire facias. I think it is not safe to let the Pardon continue. Danby has committed a greater crime in procuring this Pardon, and he is as guilty of procuring it, as of all the rest of his other great crimes. But to make the Lords sensible of it, as well as the people, I would go up to them in a body, &c.
Mr Hampden.] You have been well showed the consequences of such a Pardon, and by going away with such crimes unpunished, two great things will be lost, accusing great Men, and accounting for Money. I am not well versed in Records, but in the last King's time (I crave leave to read the words out of the print) in his Answer to the Parliament's nineteen Propositions, the state of the Nation, &c. the Government is there stated, as to Peace and War, and Pardons, &c. After the enumerating his Power of pardoning, and other Prerogatives, "That a Prince may not make use of his high and perpetual power to the hurt of those for whose good he hath it, and make use of the name of public necessity, for the gain of his private favourites and followers, to the detriment of his people," (See the Print) If after all this, a Pardon may come, &c. to what purpose is all this stated by the last King?
Mr Vaughan.] This Pardon is against common Reason, the Government, and the safety of the Crown. I say, it is against common Reason, for the support of the Government is from rewards and punishments. The power of Pardon from the King proceeds not from any positive Law, but from the reason of the Government. If once it can be made use of to interpose betwixt the greatest crimes and punishments, no man can say but the Crown must expect the greatest ruin imaginable. Suppose the King pardons all crimes for ten years—They will fly not then to Laws, but to Nature, to defend themselves, and so the Government will fall. By the Statute of R. II, the King could not pardon any thing against his Coronation Oath. Treason was not enumerated in that Oath, because it was not supposed that the King would pardon it. It is the subjects interest that the King cannot pardon a Recognizance of the Peace, but the party may renounce it. If therefore you consider, of what use can the Laws be, if such Pardons be good, &c.? How odious are they to the Government, the safety of the King, and against Law! And therefore I am against it, &c. We may go up to the Lords, and show the invalidity of this Pardon, and the way of procuring it. In the late Duke of Buckingham's Impeachment, the King might as well have obviated it by a Pardon; but he got that Parliament dissolved, and put himself into the Star-Chamber, to be rather in the force of justice.
Several then moved, "not to put in the Irregularity of obtaining the Pardon, but to insist upon the Illegality of the Pardon."
Colonel Titus.] I would not have you say, "The Pardon is irregular," for this short reason; it will be some implication that it is legal.
Mr Sacheverell.] If you go up to the Lords, &c. as is proposed, I fear you will fail of your ends. I would know, whether, before issue be joined, you can ask Judgment; next, whether you will go up before you pass Judgment that the Pardon is illegal; and next, whether you will go up before you show the Lords your Reasons why it is illegal? And if the Lords differ from you, how will you then argue it? I offer then that the Question may be, "That the Pardon, &c. is illegal;" and then I shall propose something farther. But I cannot agree to your going up, till you pass your Judgment that it is illegal.
Sir Richard Corbet] Moves, that the Question may be, "That it is illegal, and void in Law." To which Colonel Titus replied,] That is as much as to say, "It is legal and illegal."
Mr Seymour.] I have sat still all this day, and have heard very many good Arguments. I do not question your Power or Authority, but will speak as to your Method. I fully agree to go to the Lords Bar to demand Judgment in those words, &c. but I know not the meaning of the Speaker's going with the Mace to the Lords Bar. You say, "you come to demand Judgment of that which you think is no good Pardon in Law." If they agree not, &c. then you will come to tell them what your Reasons are that it is not a good Pardon.
Mr Garroway.] You are put in a good method. Put a Question only, "That the Pardon is illegal," for a resolution to your own satisfaction.
Sir Thomas Clarges.] The Speaker came into the Lords House with the Mace declined, and asked Judgment against the Earl of Middlesex, 21 James.
Mr Powle.] In the 18th of James, in the case of Lord St Albans, the Lords sent to the Commons to acquaint them, "That they were ready to give Judgment, if they came up to demand it;" and they came with their Mace to demand it, but it was declined, held down.
Sir Francis Winnington.] If you go to the Lords House in a body of the whole House, you must not leave your Mace behind you.
Sir William Coventry.] It is for your honour, not only to see the next step, but to foresee what may fall out; therefore be well acquainted with your strength. You say, Danby's Pardon is not good, and you are not prepared with Reasons to satisfy yourselves, much less the Lords; and the Lords declare Danby innocent upon it. Let your Reasons therefore be drawn up first, before you go to the Lords, and see what it is you have to maintain.
Sir Francis Winnington.] I am glad we did not take the Bill of Banishment of the Earl of Danby, when it was offered us by the Lords; it looked like compounding for Treason. Coventry desires, "That we should prepare Reasons for our Vote, &c." I would know, what was the Debate all this day, but your Reasons? If, upon every punctilio, a Committee must draw Reasons, we may sit all the summer. When you carry up the Vote, the Lords will see the Reasons of it, as soon as we have, &c.
Sir Thomas Lee.] At a Conference, if the Lords require your Reasons, it will be more for your advantage to give them then, and that Danby's Counsel be first heard, &c. that they may have no advantage of your Reasons, and reserve your Reasons till the Lords shall deny you Judgment, &c. Let us have the very words written down, that you, Mr Speaker, are to deliver at the Lords Bar, every word, that it may comport with our Debate.
The Vote was read, &c.
Sir William Coventry.] If these are the individual words that you intend to deliver at the Lords Bar, in order to that, I shall offer one thing, that the Gentlemen of the Long Robe may give their Judgments upon. I conceive, it is to demand Justice against the Earl of Danby; but the last thing to demand is Judgment. I would not have you put to bring proofs against Danby, for an aftergame.
Sir Harbottle Grimstone.] It is more proper to demand "Judgment" than "Justice," against Danby. We have voted the Pardon illegal and void; I would therefore put the Vote into form, as you will deliver it.
Sir Francis Winnington.] We are to demand Judgment, &c. because the Lords should not expect us to come and show that this is a void Pardon, and demand Justice upon the Impeachment.
Sir John Trevor.] "Justice" and "Judgment are two things; they are not terms convertible. Justice convertitur in Judicium—To demand Judgment, &c. He pleading his Pardon, you must demand Judgment upon his own confession of his charge, for now he is past his Tryal.
A Committee drew up a form of words, for the Speaker to deliver at the Lords Bar, as follows:
"The Knights, Citizens, and Burgesses, in Parliament assembled, are come up to demand Judgment, in their own names, and the names of all the Commons of England, against Thomas Earl of Danby, who stands impeached by them, before your Lordships, of High Treason and divers high Crimes and Misdemeanours, to which he has pleaded a Pardon; which Pardon the Commons conceive to be illegal and void; and therefore they do demand Judgment of your Lordships accordingly."
The Speaker, with the House, went up, and demanded Judgment accordingly (fn. 2).