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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Tuesday, May 6.
Occasionally, upon the Bill for prohibition of Irish Cattle, which was read the first time, it was said, "That the King's present Revenue of Ireland was 240,000l. a year; and all the charges of that Government defrayed, there comes clear into the King's Purse 70,000l. a year, which all goes away in Pensions.
"In the last Farm of the Irish Customs, Sir William Bucknall, the Farmer of them, got a Clause in his Patent, "That all ships should pay their Customs in England.—In the Dutch War, we lost two hundred fail of ships."
[It was ordered to be read a second time, on a Division, 184 to 133.]
Mr Treby reports, from the Secret Committee, That they were ready with their Evidence against the five Lords in the Tower; that this Parliament may not break up, without either an Act made, or a Judgment of Parliament given.
Sir John Trevor.] I move, that a Replication may be made to the Lords Plea, &c. before we send up to the Lords, "That we are ready, &c."
Mr Foley.] In Lord Strafford's case, the Commons sent up only to the Lords, to let them know, "They were ready to make good their charge against the Earl." And I move, you will proceed so now.
And so it was ordered.
Mr Powle.] Moves, "That Persons may be appointed for Managers, &c." (The Secret Committee were named.) This is a matter of great weight, and requires help from Gentlemen of the Long Robe. I would have Mr Williams added to the Secret Committee for one of the Managers of the Impeachment, Serjeant Ellis being made a Judge.
Colonel Titus.] We want no Persons in the Secret Committee that have zeal for the service; but we want Persons of the Long Robe, and I desire Mr Williams may be added.
Mr Williams.] Those that move me to be added, move to expose me, and nothing else. I have not attended the Committee, and I know nothing of their Proceedings.
Sir Thomas Clarges.] To make excuse is decent, but to persist in it is very extraordinary. The Briefs for the Managers are all ready, and it is no more than to manage a Cause.
Mr Williams.] Though my reputation in the world is very little, yet I would not part with it. If I have a Brief, I must trust to the Papers of another man's drawing, in a matter of so great weight.
Mr Williams and Serjeant Strode were added to the Committee.
On the Address for the Removal of the Duke of Lauderdale.
Sir Richard Graham.] I am loth, when the great affairs of the Kingdom call for your consideration, to interrupt you with any Motion which may seem to relate to a particular Person; but he whom I shall name, has so great and large an influence upon Councils, that I think it a service to the Nation humbly to move you, "That an Address may be made to the King, to remove the Duke of Lauderdale from his Presence and Councils." It was he, who was instrumental to break the Triple League, to advise Toleration, &c. to bring in Popery like a stream, and Tyranny like a torrent; and who gave opprobious and nasty terms to the House of Commons. It is he, who has brought in arbitrary Power on the other side Tweed, the French Ambassador assisting him to raise men in Scotland for the French service; and all that done after a Vote of this House, &c. This from the year 1670: All I have said I will prove to that time. Before that time, things have been ill, but since, fatal. In one Scotch Law, "22,000 men are obliged to march to any part, where the power, interest, and greatness of the King shall be concerned." These words have a great latitude; especially when they are to be expounded by the Duke of Lauderdale. It were a large field, if I tell you of what he has done in Scotland. I am divided in my thoughts what to move you. Though there is ground for an Impeachment, yet I am not such an enemy to his person as to advise that way. Since your last Address for his removal, 1. he has been made an Earl; 2. has had a Pension; and 3. been made Commissioner of Scotland. I shall move you only, "That an Address may be made to the King, to remove the Duke of Lauderdale from his Presence and Councils."
Mr Montagu.] Out of duty to the King, and not from disrespect to the Duke of Lauderdale, I shall second the Motion. When I see the Duke of Lauderdale and others added to the Privy Council, I cannot but think that this last project (the new Council) was to save themselves, and not for the good of the Nation; and what good can we expect from it? It is to put new wine into old bottles, and new cloth to piece up an old garment; and this, I fear, will be the consequence of the new Council. You have been shown how dangerous a person he is, of what a nauseous tongue, &c. His insolence to Lord Cavendish, who deserves it not from any man, but for having the Duke of Lauderdale's ill will. I will not advise to impeach him, there are such delays in Impeachments. Nothing is more ancient nor parliamentary than Addresses, and I second the Motion to address.
Sir Hugh Cholmondeley.] If the design of these Gentlemen, that move for this Address, be to mend affairs, they are in the wrong. Persons have been changed and removed in the Ministry four, five, or six times over, and neither complaints ended, nor affairs mended. Here one man is removed, and another friend put in his place. Unless you mend your maxims you will never mend your Ministers. When, by misfortune, the King and his Court were abroad in the late times, probably they fell in love with the maxims of foreign countries. When the King came home, mens hearts were so full of gladness and their eyes of joy, that it was thought a standing Army was most for the King's safety; but now we think English hearts the safest guard for an English Monarch. When we gave away the people's Money so liberally, the King set the less regard on his own Revenue. In those days of joy, we took into our bosom, and into our Court, the children of Rome, and they, contrary to all hospitality, intruded their Religion, against the hospitality of the Nation; they debauched our youth with Atheism; they had the confidence not only to attempt, but pervert the greatest of our Princes, fatal to him and us. In a few words I will show you, that the Ministers that have misled the King with these principles, are not merely English Ministers—But a Motion forced and unnatural, that great familiarity, in the King's solitude, to foreign Ministers, and especially to the Ambassador of France—They say that standing troops are better for the King, than the Militia of Law—For Religion, there is none so gay and genteel as from Rome; ours is four and morose, and not debonair enough for the Court. If these maxims be removed, I hope we may do well; till then, all we do is to no purpose.
Mr Secretary Coventry.] The Motion made, "for an Address, &c. for removing the Duke of Lauderdale," is diverted in an extraordinary way by Cholmondeley, by laying all the faults of the Government upon the King. If the Duke of Lauderdale has been an instrument of what he has said, he is not only fit to be banished the Nation, but the World too. By what he has said, the Parliament is in fault, the Nation in fault, and the King in fault; all in fault. It is not well to make reflections upon the King, on any occasion, and I hope the House will not take it well. He would have the French Ambassador set aside, and hopes the King's stomach will the better retain our advice. He is angry with the last Parliament for an Army and Garrisons, and with the King for sending Forces beyond Sea, &c. I would know, whether the Militia and the Army's being in wrong hands did not send the King beyond Sea? I move that no reflection may be upon the King; and to put reflections on so noble a Lord, without saying what you would have, is very odd.
Sir Hugh Cholmondeley.] Secretary Coventry is mistaken, if he thinks I intended to reflect on the King. My own duty and family put me upon better things. I said, "If maxims, &c. are not changed, it is to no purpose to remove Ministers." Our sufferings are the punishments of our own transgressions. I humbly beg the King's and the House's Pardon, if I spoke any thing hotly or intemperately.
Mr Dalmahoy.] I had rather the Duke of Lauderdale, or twenty such, were made a sacrifice, than that there should be reflections on the King. As for the Scotch Army of 22,000 men, this has been formerly discoursed of here, and it was made appear that Lauderdale was not in Scotland, when that Law was made: Lord Middleton was Commissioner. The Militia is great in Scotland, and they appear not above once or twice in a year. I never heard that the narrative of the Plot was printed in Scotland, and forbid to be published. I shall only take notice, that I suppose what is alleged is only said by information. No man in his station has defeated the designs of the Papists more than the Duke. When ten or twelve thousand were up in rebellion in Scotland, all at a time, did not the Duke show himself a good subject? As to the affront which, it is said, he gave to Lord Cavendish, he never put any affront, or shadow of affront, upon him like it. It was said, "That he should point at Lord Cavendish, for coming into a Play-house in the King's presence, when the King had forbidden him." And other things have been said, which the Duke knows nothing of. But if I know any particular actions of his in Scotland, contrary to his duty, I would say nothing for him. I never saw the French Ambassador with him, and I frequent his house. I am ready to condemn him if guilty, and excuse him if innocent—And the King has declared, "That he is not satisfied of any ill thing he has done."
Lord Cavendish.] The honourable Person named me, as having received an injury from the Duke of Lauderdale. I had a mark formerly of the King's displeasure upon me, and it was my misfortune. If the Duke of Lauderdale has injured me, I have forgiven him long since. I wish I could as easily forgive him the injury he has done the Public.
Sir Thomas Clarges.] I expected not this Motion, else I should have been provided to give you information, &c. Four years ago, you were alarmed with something of the Proceedings of this Lord. I was Chairman then of the Committee for Affairs relating to Scotland, &c. and, that morning, the Parliament was prorogued. It appeared then, that this Scotch Army might march into England, &c. It is true, that, when Lord Rothes was Commissioner, the Parliament of Scotland made a general Law for the Militia, but this Duke modeled them into Troops, and made the Army useful. But it is as if this man intended to dethrone the King by it; for in the last Clause of that Act, it is wholly in the hands of the Privy Council of Scotland to raise and dispose of that Army. In the Scotch Rebellion, 1640, the Privy Council there had no authority by Law, out now they have the authority of an Act, to come into England to back them. By their Act of Supremacy, and the King's perpetual Power in all things concerning Religion, he may set up Popery there, or any Religion, when he will, and have an Act ready cut and dried for him. Another Act makes Field Conventicles death, but the Papists may appear how they will. This Act is only for Protestant Dissenters, and if a Popish Prince come to that Crown, he may do what he will; and we then thought that these Laws were dangerous to the Kingdom. Another thing occurs to me. Rigour of death is not enough for keeping Field Conventicles, but whole Armies quarter upon them, and consume their whole Country, for the offence of some particular men— Only by an arbitrary Power, sweep all away—ClubLaw, and Sword-Law. The Civilians say, "Protection follows subjection, and subjection and protection are reciprocal." When chief Governors let themselves loose from Laws, their conditions of obedience are absolved. If they interpret the marching of that Army "where the King's greatness shall be concerned, &c." they may overrun you when they please. The chief Article against Lord Strafford was not only for pressing, by his Counsel, to subvert the fundamental Laws of England, but in Ireland for quartering soldiers to execute Royal Commands, and, as much as in him lay, to make a division betwixt England and Scotland. This Law of the Militia of Scotland is a hostile Law against us. Ireland is a Kingdom under the same Law with us, but Scotland is under another, and Lauderdale cannot be tryed here for offences done there—It is time to look about us, that such persons be not near the King. If any man be under oppression in Turkey, he may have his grievance heard— Some of the Nobility came out of Scotland to complain of Lauderdale, but the King was so beleaguered, that they were here month after month, before they could be heard, and, by the arbitrary influence of this man, they could not come to the King to deliver a Petition. There occurs to me something more remarkable; that at the beginning of the unhappy Civil War, though Lauderdale was but a young man, yet he was stirring to suppress arbitrary Government. He led the dance in Scotland, and we followed in England; and it is remarkable, that he who brought us into a War against arbitrary Government then, should be for arbitrary Government now.
Mr Harbord.] I hear it said, "That we cannot take notice here of things done in Scotland, so as to punish them." I would fain know, why the subjects are not so happy now, as at the King's Restoration. When the Marquess of Argyle was in the Tower here, he was transmitted into Scotland to be tryed there. I would have the Duke of Lauderdale sent thither, to be tryed there.
Mr Bennet.] Send the Duke of Lauderdale home; send him home, with Cleveland's two verses on his back, viz.
"Had Cain been Scot, God would have chang'd his doom, "Not forc'd him wander, but confin'd him home."
Lord Russel.] If I change my opinion, I ought to give you a reason for it; but not knowing any one thing that the Duke of Lauderdale has done, to cause me to change my opinion, since the last Address by the last Parliament to remove him, I am of the same mind still.
Sir Thomas Meres.] Here are no more of the Duke of Lauderdale's Nation than Mr Dalmaboy, and though of right he ought not to speak again, yet pray let him.
Colonel Birch.] I was one of those that sat here, when this Duke had the like desire before, from the other Parliament, which I hope he will have now. It is said by Dalmaboy, "That Jesuits were amongst the Field Conventiclers in Scotland." If so, they were very safe; but the Conventiclers were executed, and one hears not a word of them. It is said, "That what we charge Lauderdale with, was done before the Act of Grace." I spoke against that Act then, for it was to serve another turn; it was not prayed by the Commons of England, but for the sake of three or four Persons to begin the game again, in hopes to have better luck. If there be any arbitrary power in the World, it is in Scotland; and I fear this Duke may go through with it here, he, and three or four more: It may be the French Ambassador. We, in this lower World, think he carried on things then. They had surely a farther design in Scotland: When they brought the Highlandors down, a people hardly civilized; I feared it was to provoke them to raise Rebellion. The great assistance to the Crown of France, sent out of Scotland, was it not proved at the Bar ? And those who refused to go, were sent bound board a ship, and after the King's Proclamation too, that note should be sent over, &c. The Person that informed you of it was Mr Murray; he was clapped up close Prisoner, and appears not yet (fn. 1). Next, this Duke had a Pension out of your devoted Money to the Navy, the Customs. I think, the King is in the way of ruin, if such persons be about him; and I move as before.
Sir Francis Winnington.] This Debate is naturally before you. I hoped this Lord had been dissolved upon the last change of the Privy Council. There are Honourable Persons, of both Houses, of this new Council; but seeing this Lord stands still a Privy Counsellor, and has still the same Ensigns of Honour, I would address for his removal. Since the King has called a new Parliament, and we have hopes of putting all things to right, it is very natural to put all things to right. Therefore I defire you would address. Arbitrary power is the more ready to be exercised here, for being begun in Scotland. What has been said in this Lord's excuse, makes him still a Criminal. It is said, "That he has the King's general Pardon, &c. and may be tryed in Scotland." But if he be Commissioner there, it is almost Treason to do any thing against him. But I say, the subjects of Scotland are subjects of England. If any Scotchman comes into England, and offends, he is to be tryed by English Laws, and he may purchase lands here. They participate of the benesit of the Laws as we do, and ought to be careful of offending them (as in Calvin's case.) I would know of Dalmaboy, when Lauderdale wrote to the King of strange apprehensions they had in Scotland, and was raising an Army, and said, "I have made the King absolute in Scotland," and the Bishops are at his devotion, and all the fensible men in the Kingdom are under his command, and an Act of Grace has been since, Is he fit to come near the King?—His principles do not consist with the Protestant cause. I have so much love for my Prince, that I think it a dangerous station for him to be near the King. The last Parliament could not prevail with the King to have him removed. There was a complaint then of the Counsellors of France, and a shame that we helped not the Protestants; but by secret advice we helped the French, and the Protestants will fare the worse for it for ever— Some went to the Dutch, for the sake of the Protestant Religion, but were forced to run away and hide themselves. If we cannot tell the King who are these bad men, we are lost, we are gone, and reprobate; and I hope the King will make this Duke an example for bringing his fellow-subjects into servitude and slavery; and therefore I move for an Address, &c.
Colonel Titus.] I am much surprized at this matter, and much mistaken in some particulars. I did not think that any man that would not pass in the last Parliament would be in much danger of passing in this. Next, I would have Gentlemen consider in what state the Kingdom is, and what this Duke has committed; he has been the great cause of what was, or is, of our misfortunes. Those that have sat in Council so many years (as some have done) let them tell you, whether ever the Duke of Lauderdale was on the merciful side. I know not how some of us may have occasion for the King's mercy; and therefore I would not have him about the King. When the last Parliament made an Address to the King for his removal, &c. they were denied and neglected; and it appears that he is out of the reach of all Justice. Some persons have made a justification of his actions—The next day after the last Parliament made their Address for his removal, he was in the very Chariot with the King—He never arrived to the Dignity of an English Peer, till he was under the indignation of the English Commons. It may be, that an accusation of the House of Commons is one of the felicities of man. The Sheriff of Northamptonshire was committed to the Serjeant for a false Return (fn. 2), and soon after he was knighted. We have impeached an Earl, (Danby,) and he will presently be made a Marquess; and we may reckon from a Baron how to rate a Marquess. Some may say, "What have we to do with the affairs of Scotland?" But we meddle not with the Scotch Council; it is because he is an English Counsellor, that we address, &c. It is said, "You may impeach him." But when you cannot remove a Counsellor by Address, you lose the Privilege you ever had. 50 Edward III, ill advisers of the King were removed, and nobody will doubt but there are such now. In Hen. IV's time they were removed for mewing up the King, that he did not take advice from his proper Council. 5 Hen. IV, the Abbot of Glastonbury, his Confessor, and one of his bed-chamber; he had no objection against them, but dismissed them, because distasteful to his people. For that very reason, because we have Bills of great consequence before us, he that has put all obstructions to them formerly, I would have him removed. Till that be, we have no hopes they will pass. Therefore, &c.
Sir Thomas Littleton.] I am persuaded, that, in the complection things now stand, they are far worse with us, &c. yet I am sorry that those who were against this Duke in the last Parliament are fencing and distinguishing in this (He meant Capel, whose Argument the Compiler did not bear.) I am for this Address, to come to a short issue. The King told you, in his Speech, "He would take the advice of his Parliament, and next to them, that of his new Council." I would now fain try what issue this first impression will have. If Capel, and the rest of the Privy Counsellors, be of another opinion in the Address against this Duke, we shall be little the better for the change. Try it now.
Mr Garroway.] I have one Argument, and but a short one. I fear this change of the Council has done us no great good; the old leaven is there still. We were told a tale, that the Jesuits, for whose execution we addressed, were sent for to the Lords, &c. (fn. 3) Let us try whether these Jesuits will be executed, or not; and this experiment upon the new Council for removal of the Duke of Lauderdale, &c.
Sir Robert Peyton.] This Duke has hindered the printing of Coleman's Tryal in Scotland.
Lord Huntingtower (fn. 4).] Those men spoken of, &c. were raised to suppress the Rebellion, &c. and Mr Oates informed that there were Jesuits amongst them. They were in actual Rebellion, and the King may quarter upon his subjects by the Law of Scotland. I know not why this Lord should be singled out, when many more were of the Council at the time when those Advices (spoken of) were given. He has done that in Scotland, which was never done before in many ages, viz. he caused the Act to be printed for the Money given here for a War against France, and a Proclamation. (This made many laugh.) If you remove this Person, you will bring Scotland into Rebellion. None are against him there but factious persons, and I fear it will not be long from hence. I know that the Duke of Lauderdale denied those forces to go into France, &c. And when you put the Vote for the Address, I will be against it.
Lord Cavendish.] What calls me up is what is said by Lord Huntingtower, "That the enemies of this Duke in Scotland are factious persons." I know many of them, and that they are of as great loyalty, honour, and estates, as any an in that country.
Sir Richard Graham.] I will answer that they were in no Rebellion, and those whom Huntingtower accuses are as good Protestants, and of as great loyalty and estates, as himself. Such as the Marquess of Athol, and Lord Roxburgh, &c.
Mr Herbord.] In the last Parliament, there were Motions for Addresses to remove the Queen, the Duke of York, the Treasurer, and Lauderdale, and you will see what influence this Lord had. Several Gentlemen, that voted for the removal of the Queen and the Duke of York, were not put out of their Places, but when they voted against this great Duke, they were removed. Judge you then what interest he had with the King.
Sir Thomas Lee.] For some few Apprentices, that pulled down bawdy-houses, it was construed Rebellion in them all; so has the Duke of Lauderdale declared them Rebels in Scotland.
Mr Sacheverell.] You have been told of an instance of this Duke's zeal for War with France by his Proclamation, &c. in Scotland—and that was all. I have observed all along, that Lauderdale began these arbitrary things in Scotland, which he did afterwards attempt in England; as the Declaration, &c. He began to send men for France from Scotland, and then here. What one action has been done by him but arbitrary? I hope you will refer it to the Committee, over and above the Address, to inspect the Laws of Scotland, and you will find the Duke is no friend to England, nor Scotland.
Resolved, That an humble Address be made to his Majesty, to desire his Majesty to remove the Duke of Lauderdale from all Offices, Employments, and Places of Trust, and from his Majesty's Councils in England and Scotland, and from his Presence for ever.
Wednesday, May 7.
A Message from the Lords, by Mr Justice Atkins and Mr Justice Dolben, to acquaint the House, "That the Lords have appointed Saturday next for hearing the Earl of Danby make good his Plea; that the Lords have resolved, that the five Lords in the Tower shall be brought to their Tryals, upon the Impeachment against them, on this day sevennight; and that the Lords have appointed an Address to his Majesty, for naming a Lord HighSteward, in the case of the Earl of Danby, and the other five Lords; and that the same shall be in Westminster-Hall."
Sir Thomas Lee.] How your Committee should behave themselves, at Lord Danby's Plea, and what is to be done, I would have the Committee consider; and that to-morrow you would rise timely, that the Committee of Secrecy may have five or six hours to prepare for the Tryal. They will have time little enough.
Mr Swynfin.] Consider, this business cannot admit any delay. To-day is Wednesday, and you have but a short time to prepare for Lord Danby, &c. The Gentlemen of the Robe are not here: I would send the Mace for them to the Bars, and when they are come, fall upon the consideration of Lord Danby's Plea, upon what the Lords have sent you, and consider what you are to do.
The Serjeant was sent to all the four Bars to command the attendance of the Members of the Long Robe (fn. 5).
Mr Powle.] This case will govern itself by the Precedents of former times. It is said, "The Precedent of Lord Strafford's Attainder is abolished, and what relates to it, &c." But in that case, after the proofs were heard at the Bar, he desired that Counsel might be heard as to matter of Treason. The Commons were only present, not as pleaders, and all the House was there. I think they made a step too far in it. I would have the Long Robe heard.
Sir Thomas Clarges.] In Lord Strafford's case, you had Managers of the Impeachment, and he had Counsel at the end of his Tryal, not at the beginning. The whole House went up to demand Judgment against the Earl of Danby, and if Counsel come to justify the validity of this Pardon, I would advise you to send nobody at all to hear it: I would take no notice of it; and pray hear the opinion of the Robe.
Colonel Birch.] I know that Proviso in the Bill of Attainder of Lord Strafford, "That it shall not be brought into example, &c." is that the Judges shall have no power in declaratory Treason, &c. And it is generally mistaken, as if the Power of Parliament, in declaratory Treason, was taken away by that Proviso. I desire, if that be declaratory, as to the Judges only, that that Precedent may be cleared up to you.
Mr Swynfin.] It is not that Proviso that is supposed, which takes away that power from Parliament, &c but that Statute you made in reference to restoring the Earl of Strafford, in repealing the Attainder, &c. that is considerable. In that there is a recital of the whole Proceeding against him, by Articles of Impeachment; how far that proceeded; and when that was left, how the Parliament went by Bill of Attainder; and the revoking Clause takes away all those Proceedings. The Record taken out of the Lords Journal, and that way never to be used in Parliament. It was so far urged in another case, (that of the Earl of Clarendon,) that it became a Question, whether a Peer, accused of Treason, should be imprisoned without special matter. That being the case, that Statute of the Repeal, &c. ought to be read.
Mr Wogan.] On the conclusion of Lord Strafford's Tryal, a point of Law did arise about accumulative Treason, and the Lords would not judge him upon it; and so the Commons withdrew, &c. and then they brought up a Bill of Attainder. It is below the Dignity of the House, for their Members to argue with Lord Danby's Counsel; but it is convenient that some Members do go down to inform themselves what the Counsel will say, as to the Pardon, &c. The Statute of R. II. was made, that the King should not be deceived in any Grant; that all Pardons, and other Grants, should pass such hands and Offices, &c. I suppose that Lord Danby's Counsel will justify the Non obstante in the Pardon, &c. Next, whether a Pardon subsequent to an Impeachment is pleadable, and the King by a Pardon can prevent the matter, &c. and whether there be such an interest in the Commons, that the King cannot pardon, pendente lite?
Mr Swynfin.] First, take the Lords Message into consideration; but if, upon that Debate, any thing arises, then it is needful to read the Act of Repeal of Lord Strafford's Attainder.
Mr Powle.] I would have that Act read, to clear Gentlemens minds. I see nothing in that Act but that you may go by Bill of Attainder.
The Act was read, 13 Char. II. Chap. 29.
Serjeant Maynard.] The Lord High Steward is not only in Danby's Case, but the five Lords, &c. I understand not what the Lords mean by a High Steward (fn. 6). He may have a name, but not office. There are but two ways of Tryal in Treason or Felony; either the person is indicted, and tryed by a Jury, or, if he be too high for the ordinary course of Law, by Impeachment. But in the ordinary course of Tryal of a Peer, the Lord High Steward appoints what Lords shall be Tryers, as many as he pleases above the number of twelve; but this quite differs when a Lord is tryed by the whole body of Peers in Parliament. The High Steward is not then Judge in matters of Law, but every Peer particularly. In Præmunire the Lords are tryed by themselves, and they can have no challenge, and though three or four of his enemies were named of the Jury, if that could be supposed, he can have no challenge. A Commoner may challenge thirty-five at Common Law, because he likes not the men peremptorily, but the High Steward can admit no challenge, if the Lord to be tryed have ever so good a cause to shew. But what I drive at, is, that, in the ordinary proceedings of the Lords, the High Steward is in the nature of a Judge. A man indicted at the King's Bench cannot plead not guilty, if he have a Pardon, but may plead his Pardon. The Lords can have no challenge, because the Baronage and Peerage of the Realm are their Tryers. I have observed, that when Lords have been tryed, the Steward of the King's Houshold has been Lord High Steward—Now the Lords have a High Steward. The case of Lord Danby and the five Lords is very different; the case of the five Lords is fact to be tryed, but in that of Lord Danby there is no fact to be tryed, for he pleads his Pardon. Call him a High Steward, or what you please, but the Lords try Lord Danby. Now the Question is, what you shall do in this case? It is a case that never happened before. A man questioned for such high crimes never pleaded a Pardon; the thing was never done, and therefore I cannot tell you what has been done. In Lord Strafford's Impeachment, twelve persons were named of the Secret Committee; they examined the whole business; it is now thirty nine years ago. They desired some of the Long Robe to be added; thereupon I was added to prepare the charge, and make good the Evidence. There is a worthy Gentleman now of the House, (Sir Charles Harbord,) who was one of the twelve; he may inform you whether a High Steward was named; be pleased to hear him. Sir Anthony Irby was of the House then also.
Sir Charles Harbord.] He was not then High Steward as in other cases, for here all the Peers must give their Judgments; there was "Guilty, or not guilty?" But here, in Lord Danby's case, is no such thing; he puts all upon the King. This whole thing is in point of Pardon. I will serve the House with the best information I can.
Sir Henry Ford.] I was present at Lord Strafford's Tryal; the Earl of Arundel was Steward of the Houshold, and Lord High Steward then.
Serjeant Maynard.] I know not what he was, whether High Steward or not, but he was a necessary person to hear the Evidence.
Sir Charles Harbord.] Maynard has told you true; he was not High Steward to name twelve Peers, but only to hold the Court of Peers below in Westminster-Hall. The Lord High Steward, in Lord Strafford's case, was quasi a Chairman, to put Questions. My opinion is, that it is best for you to appoint Members to be present; else you will never be informed what the Counsel say, as to the Pardon; but not to bandy there with Counsel.
Sir Francis Winnington.] There are several matters under your consideration as to the five Lords: I would not clog this Debate relating to the Earl of Danby with them. There is nothing that the Lords have done, as to the five Lords, but what is regular and customary. There is a difference; when an accusation is in full Parliament, a Lord Steward then is but in the nature of a Prolocutor. In vacancy of Parliament, upon the Tryal of a Peer, a Lord Steward is appointed by the King; but in both those cases, they are no more Judges than the rest of the Peers; and methinks it is not worth your curiosity to debate it. On the contending it, as to Danby, I will offer you my thoughts. As I have been always sensible of this Pardon, I shall never have any comfort to come to Parliament again, if that be a good Pardon. Now the Question is, what method you will take, that you may not be prejudiced in your cause. Danby puts his life upon his Pardon. For his Counsel to appear for him to justify his Pardon, that is not irregular at all; that is a right due to the prisoner; but the Question is, how the Commons must demean themselves, whilst the Counsel is to be heard? I apprehend that Danby will come to the Lords Bar, and have his Pardon argued, and the Commons not be present at all. And upon Debate of Counsel, either the Lords will allow it, or if they conceive it doubtful, they will send you word; but you are not to advocate it with the Counsel. The Lords Message tells you, "That they have appointed Westminster-Hall, &c." But the Lords sitting, being not local, they may go from one room to another, &c. but I am utterly against the House being there. In Lord Strafford's case, the Commons were present, because they were to make good their charge; but in Danby's case, here is nothing but a Question of Law about the Pardon. You may go and hear the Counsel's Arguments as private Gentlemen. If their Arguments stick not with the Lords, you will hear no more of them; if otherwise, they will send them you down—It is not for us to debate their Proceedings, but where it is prejudicial to our cause. If they doubt, the Lords will give no Judgment, and they will communicate the Arguments to you, and here it comes naturally for you to argue against the Pardon.
Mr Sacheverell.] I desire the case may be a little opened. I fear you will find some difference with the Lords about the Lord Steward, &c. I would have satisfaction, whether, before Lord Strafford's Tryal, there was ever a Lord Steward in case of an Impeachment from the House of Commons? Then let any man show me how, if there be a Lord Steward, you can confer with the Lord Steward's Court, and the Lords no House; and there is an end of your conferring, they not being a House. I would know, whether there was ever a Lord Steward to try matter of Law? I fear the Lords will undo one point of Impeachment that they have already admitted. If they get that point of a Lord Steward (appointed by the King) in time of Parliament, they will get it out of Parliament too.
Mr Powle.] I agree that, before Lord Strafford's Tryal, there was never any Lord Steward appointed for Impeachments, but out of Parliament only, upon Tryals in Appeals in Parliament. A Lord Steward was not appointed, but was hereditary in the Duke of Lancaster. 1 R. II, an Archbishop of Canterbury was tryed, and there was no Lord Steward. But in Impeachments the only case is in Lord Strafford; but the ill consequences were not then objected, for he was not properly as a Lord Steward, but they sat as a House of Lords, and they spoke "My Lords," when our Managers, gave it their appellation; whereas the Lord Steward is called "his Grace," when applied to. That shows plainly, that they sit as a House of Lords, and not as a Court. But be he Steward, or what he will, if the Lords be under the notion of a House of Peers, there is no encouragement by it to try an Impeachment out of Parliament. Now the proper Question is, what Message is proper for you to return to the Lords? I think it may be, "That you will attend the Lords, to make good your charge against the five Lords." But you ought not, as a House, by your appointment, to be there, to hear the Counsel for Lord Danby's Pardon. Having once passed your Judgment, it would be too precipitate to go to argue. I would signify to the Lords, "That you would not be present by a Committee, nor the House." It is an improper course in the Lords, to go to Westminster-Hall to hear a Pardon argued. Whenever we go there, we treat with them, and speak to them, as a House of Lords, and not as a Court of Judicature. The Lords have appointed a day for the Tryal of the five Lords, which you may prepare for, but as to Lord Danby, &c. it is not fit that you should be present by yourselves or others.
Mr Vaughan.] I am against your going, when Lord Danby appears, for another reason. You go to hear your own Vote arraigned before your faces, and I would not be he that should be a Counsel for Lord Danby to do it.
Mr Paul Foley.] In the case of Weston, there was no Chancellor in R. II. If he was a Bishop, he could not be present; but it appears by the Rolls, that there was no Lord Steward appointed by the King, but by the Lords. Now whether we be present, or not, I challenge any man to show me any Impeachment tryed, and not in full Parliament. That being so, how can any man have a Pardon pleaded, and we not there?
Sir Francis Winmington.] With your leave, I will speak one word more. The Impeachment is in the name of all the Commons of England, and they are all parties to it. The Lords, by assigning Danby Counsel, are Counsel against themselves. Lane, the Attorney General, was allowed to be at Lord Strafford's elbow; but I would have a Precedent showed me, when ever, a charge being confessed, any Commoner came to argue us out of the case. I desire to know, whether, if the Lords do assign Commoners of Counsel for the prisoner (Danby) those Commoners are not parties? The Judges are indifferently to declare the Law; so are the Lords; and I look upon it as a high matter, for Commoners to be of Counsel in this case. If the Judges opinions are asked, there it is necessary for you to be in full Parliament, that the whole Commons may see Right done by them.
Sir William Coventry.] I shall not meddle with points of Law. I heard it said, "That Counsel ought not to appear, because they are Commoners, but that the Judges may argue this Pardon, &c." But they are Commoners, as well as all the rest of the Counsel. A Commoner may be impeached by Commoners, and therefore in favour of life, I would not have things restrained. If the Judges be in Purgatory, a middle state betwixt Lords and Commons, I never heard that before. In the Lords House the Judges cannot open their mouths, but by command of the Lords; and it is but just, that Danby should have somebody also to plead for him. It is fit to consider what part you will take in this matter, if we are sent there, neither as a House, nor Committee, nor Managers, and if Law be argued there, and only on Danby's side, where shall the Commons be heard to argue? When we took exceptions only at the place that Lord Mordaunt sat in, when we impeached him (which was upon a stool within the Lords Bar,) about that nicety the Lords would not admit so much as Conference. If you have Law to maintain the invalidity of the Pardon, come with it; for in this, you come not so near a co-ordinacy with the Lords as in Bills. This is Judicature. If you put this too forward, the Lords will say, "It is your fault that you appear not;" and so I know not where your Arguments will ever be heard. I speak with great tenderness in a thing out of my way; and the matter is so obliterated, and hard to find in ancient Precedents. Now I would move you to have the Committee consider, whether Danby's Counsel shall deliver their Plea in writing, and then you will make no scruple in answering that.
Ordered, That a Committee be appointed to consider of the Lords Message, and to search Precedents, touching the Methods of Proceedings, &c.
Thursday, May 8.
Sir John Trevor reports the Address, &c. for Removal of the Duke of Lauderdale. See it at large in the Journal.
Resolved, That the House will present it in a body (fn. 7).
Sir Thomas Clarges reports from the Committee, &c. the Methods and Circumstances of Lords Tryals: That they looked over Lord Strafford's Tryal—Forty Commoners and twenty Lords were appointed, who did assert and agree what Methods were to be observed in the Proceedings. The Committee ordered him to report no Opinion, but barely Matter of Fact.
Sir Thomas Clarges.] In the Precedent of Lord Strafford's Tryal, I find that he had his Counsel, but they did not interrupt the Evidence, but when all was done they spoke to matter of Law; but here in Lord Danby's case, the Lords begin with Counsel. The Committee did think it the safest way to send for a Conference with the Lords to agree to methods, &c.
Mr Hampden.] I know not what reason has induced the Committee to this opinion. So far as concerns the five Lords in the Tower, they have done well; but what is this to your business of Lord Danby? Will you go and adjust it with the Lords, whether you shall be there, when Danby is there with his Counsel? Or will you treat with Danby's Counsel? It concerns not your service to go, and less your dignity to go—It may be, another Question will be, Whether he shall have his Counsel, or not? However, do not this. When you manage, &c. that is another case. Take your own Resolution in it.
Colonel Titus.] It will be absolutely necessary for you to go and examine the circumstances. We have passed our Judgments, "That the Pardon is not legal," and the Lords have given us notice, "That they will hear Danby by his Counsel, to the validity of his Pardon." Suppose we are not there, and the Lords hear his Counsel, and there be no objection against them, and the Lords are convinced, or not convinced, and Danby has many friends amongst them, and they say it is a legal Pardon, then we have brought our business to a fine pass: Danby is acquitted, and we know not how he is acquitted. To hear, at least, how Counsel acquit themselves, I would appoint a Committee, and move the Lords, &c. to appoint another, to adjust this matter, as was done in the case of Lord Strafford.
Sir Thomas Lee.] I think it hard for you to delegate your Power to a Committee in so great a difficulty as you are upon. The Lords having told you they would try Danby, &c. in Westminster-Hall, and you not present, I know not what you will do after it. I am not versed in these matters of a Lord Steward, to declare in matter of Law, &c. and many difficulties will arise upon you, should you desire a Committee of Lords, &c. without informing them of the grounds and reasons, and make objections against the method they are in.
Sir Thomas Clarges.] All the Committee agreed that this method should be taken, but left it to you, without any Opinion given. In the Extract of Lord Strafford's Tryal, &c. the Lords sent down Lord Strafford's Answer to the Articles, &c. to the Commons, by Mr Whitlock: "They send to this House to prove the Charge, and manage the Evidence, by Members of their own." For hearing, in Westminster-Hall, &c. implies the Commons present. They might else hear the Counsel at their own Bar in the Lords House. It was agreed by the Committee, in Serjeant Maynard's Chamber, to be the safest way, and the best method, to follow the Precedent of Proceeding in Lord Strafford's case.
Mr Boscawen.] The Gentleman (Talbot) wholly mistakes the thing; for the Attainder of the Earl of Strafford is repealed, but not the Impeachment. They are two distinct things. The accumulative part only is repealed.
Colonel Titus.] Can any man think that the method of Tryal is altered? Can any man think that, because an axe was carried before Lord Strafford, that formality is repealed? Or that the Lord Steward's Office is repealed?
Mr Vaughan.] I do not think it for our Dignity to be present in Westminster-Hall, when Danby is there, &c. When an Accusation is made in Parliament, it is not by a particular Member qua such, but it is the Accusation of all the Commons of England. Every Commoner of England is here present, and the Counsel are Commoners, and you cannot be present; but this you may do, you may punish the Counsel; for they affirm by their Arguments, against a Resolution you have taken. You ought, at a Conference, to tell the Lords, that you cannot be there present, but desire Danby's Reasons to be given you in Paper, as the five Lords Reasons, &c. And then you may show the unreasonableness of your being present to hear the Counsel argue.
Mr Paul Foley.] At the Committee, all were of opinion, that no Lord High Steward had ever been appointed by the King, unless in Lord Strafford's Tryal; and he was but in the nature of a Speaker, and he can do no harm. As there was no Precedent of it before, so, I believe, the Lords were led into a mistake. If we can show a Judgment given upon an Impeachment, without a Lord High Steward, then the Lords may wave it. I am of opinion to prevent the prejudice that may come by the Precedent. I have informed myself of the Commission the Earl of Arundel had for High Steward at Lord Strafford's Tryal: If there be no Commission but that, the Lords may make their Speaker; the King may make one when he pleases. The Chancellor is Speaker by Commission. But if there must be a Commission to try Peers in Parliament, I know not but that it may be Error, as much as if the Chancellor should give Judgment in a case of the King's Bench. Another thing was discoursed at the Committee, whether the House should be there in person? But there was no case found of the Pardon, &c. Many of the Impeachments in Parliament, and all the steps to condemn or acquit, are to be in full Parliament, and that is a reason why we ought to be there. The Lords, it seems, expect our company to hear the Counsel for Danby's Pardon. In Lord Strafford's case, when the Counsel argued, the Commons were all there, and the Counsel were as private Gentlemen assigned him, and the Lords resolved in their own House. This morning, at the Lords House, I looked over the Order. Their Order is restrictive, "to hear what Lord Danby's Counsel has to say, in justification of his Pardon." If the Lords think it not reasonable to condemn him, unless his Counsel be heard to matter of I aw, we may be present, and return again to our own House.
Mr Powle.] There passed an opinion current in the House, &c. which I gave into, but since I have thought of it. In 21 R. II, in the case of Lord Cobham, Judgment was pronounced by the Duke of Lancaster, Lord High Steward. In the Archbishop of Canterbury's Tryal there is nothing of a High Steward; but in Lord Cobham's case, it does expressly appear, that at his Tryal there was a Lord High Steward, by express direction: For the High Steward is rather the Lords servant, or Speaker, than a Judge, or Director of the Court. There is another Note in Placita Coronæ Parliamenti. There is particularly a High Steward appointed, &c. And that probably is the reason, why the Lords admitted a High Steward in Lord Strafford's case; and since it has been admitted, I see no great injury in it. Counsel was assigned Lord Strafford to a particular point, as to the Pardon of Lord Danby. In the same Parliament of R. II, was the case of Arundel, Archbishop of Canterbury. (Then five Lords appellants did appeal a certain number of Lords of High Treason in pleno Parliamento, for obtaining and exercising a Commission.) In 11 R. II, he pleaded his Pardon. All was done for the public good. Another he pleaded, 17 R. II. They did, by Act of Parliament, reverse that Act, 11 R. II.—1 Hen. IV, though the things were condemned, yet the manner of Proceeding was not condemned. The Commons requested the Lords Judgment as to that particular Pardon; who judged it to be a blemishment to the King's Royal Crown and Dignity, and surreptitiously got, and voided it by Act, &c. Then the Lord Steward, the Duke of Lancaster, acquainted Archbishop Arundel, "That his Pardon was repealed by Act of Parliament, and if he had nothing else to say for himself, he must pass Judgment upon him." And he was banished. Now I desire you to consider, whether this Record I have mentioned is not fit to be translated. Now whether the King can pardon is a Declaration of the Law, and, in points of declaring Treason, the Commons joined with the Lords. It is worthy your consideration, whether, if the Lords declare that the King has this power of pardoning, all the Commons are not concluded by it. I am clearly of opinion, that, whether you go in a body, or in a Committee, to Westminster-Hall, it is against the Dignity of the House. Now by solemn Vote you have declared this Pardon to be illegal, you to sit and hear Counsel arraign your Vote, is very indecent. You may let your Members go as spectators—Else you will go to try a man, after you have given Judgment—You hear that yourselves are precipitate. Therefore I would send a Message to the Lords to take what course they please, to inform themselves of the Pardon, but that you will not hear it argued. If the Lords please to confer with you on the Reasons why they cannot judge the Pardon void, it may be for your honour.
Colonel Birch.] You have heard from the Lords, that they have set a day for Tryal of Lord Danby; that is, his Pardon. In the case of Lord Strafford, there was a Committee appointed, &c. If you will put things together, I would desire a Conference with the Lords, that a Committee of Lords may join with us, to consider of the ways, not only of having Counsel in Lord Danby's case, but that what relates to the five Lords may be put into method.
Mr Sacheverell.] I think this is a weighty point, and that it ought to be considered of. As for that of Danby's Counsel, I would only put the Lords to declare how far they will make use of it. Next, "That we hope the Lords will not introduce any new method of Proceedings. That as you have searched Precedents, so they may likewise." And I hope the Lords will not go any unusual way of Tryal, but the usual. Next, I cannot apprehend what should induce the Lords to address the King for a Lord High Steward, since the Proceedings in Parliament, of like nature, have been in full Parliament. Next," That the Commons do not doubt to give the Lords such satisfaction, concerning the Pardon, as shall convince their Lordships, &c." And I doubt not but the Lords will give you such satisfaction as that the matter will be settled.
Sir Thomas Clarges.] I like the matter well, but not the manner; for this will beget Conference upon Conference without end. I would rather secure the thing by a Committee of both Houses, and then the Question about the Lord Steward, and the Question about the Precedents, will all be settled. Conference will be tedious, and the time will not bear it.
Sir Richard Cust.] That way last proposed will be longer. It must be by Debate, and since that end cannot be foreseen, I rather close with Sacheverell's Motion, and would leave your Reasons with the Lords. In the 17th of Rich. II. Chap. 6. no Pardon for Treason or Felony, &c. unless it pass the Privy Seal, &c. except when the Chancellor may grant a Pardon of course without speaking with the King.
A Conference was ordered, where the Commons acquainted the Lords, "That they could not apprehend, why their Lordships should address his Majesty for a Lord High-Steward, in order to the determining the validity of the Earl of Danby's Pardon, as also for the Tryal of the other five Lords, because they conceive the constituting of a High-Steward is not necessary; but that, upon Impeachment, Judgments may be given in Parliament without a High-Steward: They therefore propose a Committee of Lords and Commons, to consider of the most proper ways and methods of Proceedings upon Impeachments of the House of Commons, according to the usage of Parliament, that all inconveniences may be avoided."
Sir Robert Howard.] I know not what to call this bringing Lord Danby to Westminster-Hall. It looks like a pageant. I know not what to call it. There was never such a thing brought before the World. A criminal to be brought to the Bar, &c. and nobody against him; all for him, and you must go to hear Counsel argue against your Vote. In my opinion, I would clear that matter first.
On the Bill against any Member of Parliament accepting an Office of Profit during Parliament (fn. 8), [which was read the second time,] one said, "Accepit beneficium, amisit libertatem."