Grey's Debates of the House of Commons: Volume 8. Originally published by T. Becket and P. A. De Hondt, London, 1769.
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Monday, December 20.
Mr Hampden reports, from the Committee, an Address in Answer to the King's Speech. (See it in the Journal.)
Mr Vaughan.] I have always accounted it good manners to acquiesce in the pleasure of this House, and now much more, having the concurrence of my Conscience. The Precedent has had good success; and from the like cause I hope we shall have the same effects; for, without this Bill, we can have no possibility of quiet. They think now to puzzle us with our own integrity. Whether this Address have success or no, you have raised a great Monament of your worth to posterity. As for the Association, I cannot tell what that is; against Popery our Laws associate us, and our hearts for the King. Though the Duke of York have ever so great Virtue, and endeavour, should he be King, to permit the Protestant Religion, yet we know where they are all locked up— There will be a perpetual division between the Head and the Members, and the Pope will make us Hewers of Wood and Drawers of Water, if the Duke be King. I think, the other things in this Answer to the King's Speech are not equally matched with this great thing of the Duke: Better things may be coupled with this Address, and of infinitely more moment. As for Money, we do expect protection from the King, and he support from us. The same ill Arguments that were used in the Long Parliament for Money, cannot hurt us now; we are a new Parliament, that live not upon what we give, nor our pay arising from our Votes, as in the last Parliament. It is impossible that this Bill of Exclusion should pass, this Session—I have heard of a short Prorogation of the Parliament for that purpose, and that from this Place. But have we sat so long as two months, with great expectation of the Nation upon us, and now must we conclude a Session, and be in the same condition we were in before, and far worse? Do we not place it in those hands who have been habituated to Prorogations? If once there be a Prorogation, you will see the Duke in Whitehall, before you can get into your Scats at Westminster. You will lose by it the Bill of Banishment of the Papists, and that, in the Lords House, of banishing the Duke, &c; and will you by that show your Duty to the King? I come not here to speak in Masquerade. The case is now with the King, as it was betwixt Queen Elizabeth and Mary Queen of Scots. Her Council saw, that the Queen of Scots and the Papists conspired the death of the Queen, and should the Queen have fallen by a stroke from the Queen of Scots, there was by Law an assurance of indemnity in defending their Religion, and therefore an Association. But at last they took off her head, without which an Association would have been of little signification. Though the King have confidence in the innocence of the Duke in the Plot, &c. and fears him not, yet we ought not to hazard the King's life under such a temptation. Those of the Court have swallowed our Lives and Estates in contemplation, and will in the Succession; all goes through the Duke's hands, as well matters Ecclesiastical as Civil, and he encroaches upon Royal Power. When this Answer is given to the King's Speech, send up to the Lords, and desire their assistance in the streight we are in, and I hope we shall have good success. But if you are prorogued without doing any thing farther, I think that the Nation will be ruined, and vote "That you will give Money, if your Petitions may be granted."
Sir William Jones.] I concur with Vaughan in all the commendations he has given to the Bill of Exclusion; yet I am so unhappy as not well to understand why, by what he has said, viz. "We are to depart from the Bill itself, and not have it, then, without more dangers by Prorogation than without it:" And not without a Prorogation, "for that," he says, "would be full of inconvenience for the loss of Bills depending, and all misfortunes upon us; and the Duke then will be here again." I lay that weight upon this Bill, that all time will be lost till we have it. Some Bills will be ready before a Prorogation, and some are sent up, &c. but if this should be a Prorogation, I think we may sit longer every day, and take more pains, and then we shall not lose the Bills depending. I wonder what inconvenience will follow, if the Bills be lost; they may be soon gone over again, and if we be so happy as to sit two or three days, only to finish what is before us, it will be so far from inviting the Duke to return, that I believe he will not return at all. Vaughan says, "That of Association, &c. is of little signification." But I hope he does not intend to sit down with words—But you have described this Association, to what purpose you would have it. This is no new thing, for then there was an Association without a Law, and afterwards it was confirmed by a Law in Queen Elizabeth's time. You have been told, and something was mentioned, "That things of a trivial nature were mingled with this great matter of the Duke, in the Answer, &c. as Judges and Justices of the Peace, &c." But I think the Judges so described is a great thing. Therefore, for security of our Properties, nothing can be more for our advantage. As for Justices of the Peace, King James magnified the Government by it, and took a resolution to have the like Government in Scotland. Judges go their Circuits but twice a year, but Justices keep the Peace of the County every day; and if they be not such men as give countenance to the Protestant Religion, you may lose it. I see that Vaughan thought well of the matter, and that may beget a long Prorogation, what he has moved. He spoke of the Bill of banishing the Papists and the Duke; but such a Bill will cease when the King dies, and they will return with greater increase, and it is so much lessening our security. I move, "To pass the Answer, &c."
Mr Vaughan.] The Gentlemen that penned the Answer have done it to the advantage of their own credit. But I am misrecited; the Judges and Justices I think to be of moment, but not equal to that of the Exclusion. Who made that bargain of the Prorogation, we know, and in whose hand that is. The Bill of Banishment of the Papists and the Duke may have some security in it, but in the Prorogation, none.
The Answer, &c. passed as reported.
[The Articles of Impeachment against Mr Seymour were read, and sent up to the Lords.]
Tuesday, December 21.
[A Bill for uniting his Majesty's Protestant Subjects to the Church of England, was read a second time (fn. 1).]
Serjeant Maynard.] I would not let a man come in what Habit he will to the Church, that is in Orders, nor use what Prayer he lists, no Liturgy, and every man to do what he lists. I would not lay all things down, when you are about to reform some.
Mr Finch.] In matter of fact, I shall acquaint you how this Bill stands. I would not suppose things in it, that are not. The Liturgy is not taken away, but only the "Assent and Consent, &c." which ceases two years hence; and the Liturgy remains in the same condition as it is now, or will be in 1682: That of Ordination remains as it did before. The Oath of Church-wardens, &c. is understood "in licitis & honestis," and if you take that Oath away, which there is no Law for, it is no hurt to the Church. Every man takes the Oaths of Allegiance and Supremacy, which is much better than the Subscription only to the Liturgy. The Act of Uniformity is established by Law, and what necessity is there of subscribing to it, when it is a Law? The thirtyfive Articles are to be subscribed to; Orders and Homilies are not taken away; only there is not an obligation to subscribe to the whole thirty-nine Articles. As for Habits, there is no danger that there should be none, or indecent, for still Ordination is from the Bishop; however, you may refer that to the consideration of the Committee.
Mr Powle.] I have been always of opinion, that Unity is better than Uniformity; and to have Protestants under one Bond, is worth more than any Ceremony; and therefore I am for it. This Bill of Comprehension supports the Church; for consider the number of Papists and Separatists; the Church is reduced to so narrow a bottom that it cannot stand long; and those befriend the Church that would support it as well as they can, and would fail as well as they can betwixt two Rocks. Ever since Queen Elizabeth's building up the Church, restraints have been put upon it; and now we are going to take them off. I will give you an account of some things, how they came upon the Church. In Queen Elizabeth's time there was nothing subscribed to but the Doctrines. Archbishop Whitgist brought in three Articles to be subscribed, one, the King's Supremacy, and the other two about Ceremonies; and for this there was no authority, but the Archbishop did it of himself. Then King James proceeded by Canons, in 1613, but I know no Authority in Law for them. The King's Ecclesiastical Authority changed as his Temperal, but that unfortunately changed, and the King came in, and then the temper ran another way, and there were Acts of Uniformity raised to an higher pitch than before, and "Assent and Consent" were enjoined. I may obey what I think in some points may be mended, and therefore cannot give my Assent and Consent; and though I am a friend to our Liturgy, yet, I think, some expressions in it may be mended; and though I join in it, yet I wish it were put under a better explanation. For that of Ceremonies, I am indifferent to give consent; but I fear, if some things established be taken away, that nothing will be put in the room of them. I am for establishing Episcopal Authority, so far as it is consistent with the Government of the State. As for the Oath of Canonical Obedience, I do not know whether taking that Oath away does not take away Canonical Subjection, as far as the Ecclesiastical Laws do make good that Authority. I am afraid we should leave the Government of the Church loose. "The Assent and Consent, &c. ends in two years," it is said; but I take that to be perpetual, though the Renunciation of the Covenants ends in that time. Persons admitted to Dignities and Benefices, I would not have them left at liberty to use, &c. I hope all these things will be provided for in the Bill.
Mr Finch.] I should be loth to say any thing here like artifice. I confess I was in an error as to "Assent and Consent," yet the use of the Liturgy remains in the Church, if this Act does not pass.
Sir Francis Winnington.] Those who have written the sharpest against Diffenters agree, that they are the same in Doctrine with the Church: Now the Question is, Whether we shall unite them to us, who differ not from us in Doctrine? It will be for the benefit of the Papists to destroy us all. I never met with a Parson, whose Living was under a hundred pounds a year, but would let them in; but those of a thousand pounds a year, dignified men, are against it: They think the alms are better distributed. I observe, there are not above two in the House against this Bill. If you take away the Oath of Canonical Obedience, you take not away the Jurisdiction of the Bishop; he may be punished if he obey not in omnibus. But I hope that no man means Archbishop Laud's Canons, which were not established by Law. But as to the point of Pluralities, it is necessary to be thought of; but I fear it will stick so hard with the Lords, that it will clog this Bill. Let the Bill stand upon its own bottom for uniting Protestants. I could make it appear, that, for ten or twelve years last, all has been the product of Popish Councils: Therefore, without particular instructions to the Committee, you see how the thing may be easy. I will tell a story, which was in a Court at Westmimster-Hall. There was a poor man excommunicated for not coming to Church for some time; he was advised to reconcile himself to his Minister, who, the Judge said, was a moderate man. The Counsel challenged the Officer of the Register, how many Papists he had excommunicated? But it seemed, not one.
The Bill was committed (fn. 2).
Sir George Treby.] You have obtained Judgment against Lord Stafford from the Lords; there remains Justice to be done upon him by Execution. There is a Writ come to the hands of the Sheriffs of London, in the nature of an original Writ out of Chancery, signed "Finch, Chancellor," for Execution. (And reads the Writ, which see in Lord Stafford's Tryal.) This Writ does something shock the Sheriffs, and for your sakes as much as the Sheriffs, I move it. There is some Question whether the issuing this Writ out of Chancery can be done in this course of Proceedings. This Writ is, as if it were a common Tryal of the Lords out of Parliament. Part of the Execution of the sentence is "Cutting off his head." Though the Judicature of this be not in this House, yet you are tender, whether, if the King and the Lords should dispense with part of the Execution, it will not be Error, and you as Appellants may claim your Right of the Execution. The Sheriffs leave it to you.
Sir William Jones.] The matter moved is of moment, and your time drawing near, of waiting upon the King, I would not huddle it up, but adjourn it to tomorrow.
[It was adjourned to Thursday.]
[December 22, Fast-day. Dr Burnet preached.]
Thursday, December 23.
[Sir Richard Corbet reports the Resolves of the Committee appointed to examine the Proceedings of the Judges in Westminster-Hall,] touching the Discharge of the Grand Jury in the King's-Bench, (which see in the Journal.)
Sir Francis Winnington.] We demand Justice of the Judges; we are not precarious. It is a standing Rule of the King's-Bench, "That the Grand Jury of Middlesex is not discharged till the last day of the Term." One of the Articles against Archbishop Laud, was for dissolving the Parliament of 1640, and therein is the word "traiterous." I know not what you will call this Crime in the Judges; I leave it to you. And whether you will apply your Vote to this particular. See the Vote.
It was moved to be added, "That this being done by the Judges without Precedent, &c." To which said
Mr Hampden.] That will be a lessening of their Crimes. There are Precedents enough that the Judges have subverted the Laws of England.
Mr Vaughan.] I move that these words may be added to the Question, "Thereby to introduce Popery." It has been long contended, whether Popery comes before Arbitrary Government, or Arbitrary Government before Popery; but now they are pari gradu—This has crept into the bowels of the Judges. To say we shall have no Indictments, is the same thing as to say, we shall have no Law at all; a kind of a Legislative Authority in the Judges. Pray stick to those words in the Question, "That this tends to the subversion of the Protestant Religion, and to introduce Popery."
Sir Francis Winnington.] The Judges of the King's Bench have made this Rule of Court, viz. "Ordinatum est, quod Liber, intitulat "The Weekly Packet of Advice from Rome, or the History of Popery," non ulterius imprimatur vel publicetur per aliquam personam quamoumque. Per Cur." By this Rule, provisionally, the Judges make a Law for the whole Kingdom. Therefore I would have the Words added to the Question, "Assuming to themselves a Legislative Power, &c."
Mr Powle.] If you will put that into the Question, pray put in more. When no Information, Indictment, or other Process was before them, to make such a Rule, is what never was done before.
Sir Francis Winnington.] At the time of making this Rule, there was an Indictment against Benjamin Harris depending in Court (fn. 3). I would not give them that advantage.
Mr Vaughan.] Whether there was an Information depending at that time, or not, it is all one. Shall the Judges make a general Rule? It is an assumption of a Power that they ought not to exercise.
Serjeant Maynard.] The Judges may make such a Rule, whether there be an Information depending, or not.
Mr Hampden.] Sure Gentlemen do not consider what it is for a Judge to assume Arbitrary Power. By that he makes his Will a Law. The Words "illegal and arbitrary" comprehend all the rest you would have.
Sir Thomas Lee.] Subjects have, by Law, liberty to write, speak, or print; he may be indicted if he transgress, and it is at his peril, if he offend. But shall not a man speak unless he be licensed? So somebody might do it, it seems, though unlawful.
Mr Boscawen.] I desire that you will consider whether you will proceed against all the Judges at a time, to make so great a noise; or whether you will begin with the most notorious.
Sir Thomas Lee.] If I were assured you would have time, then you may proceed upon them, one by one; but the same Committee may draw up the Charge against them all, and it may be managed with the same Witnesses, and you may proceed with them as you have done with the Lords.
Sir Thomas Meres.] The beginning of this affair did arise from discharging of the Grand Jury. Sir Thomas Jones did it; it is his care, and his province. As to Judge Dolben, his name was never used by any of the Witnesses. If he suffer, it is for his silence. I know not how you can avoid putting the Question, but pray let it not be upon him; but hear a Report that is ready for you.
The Speaker.] It is a vain thing for one Judge to speak in the King's-Bench, when two are against a thing. In the Ship-Money case, Hutton and Crooke, though it was against their opinion, yet for conformity they subscribed it, and were not impeached.
Mr Colt.] He gave his consent, in every degree, to discharge the Grand Jury. He might have argued it, if he would.
Sir Robert Clayton.] Whilst Judge Dolben was Recorder of London, in the Common-Council, when the Plot broke first out; he carried himself very well; and I have loved him ever since for it. The worst thing I hear of him, is, that he had a hand in the whole matter. The Court of King's-Bench was at Scroggs's direction, and I think Scroggs had his Preferment, to be useful on such occasions.
Sir John Hotham.] If the same things be against this Judge as against the others, I will not say any thing for him; but at York, upon the Tryal of a Priest, he did behave himself very well.
Sir Christopher Musgrave.] In the Northern Circuit, though I was not at York, I heard that his carriage was so good at the Tryal of those who were guilty of the Plot, that I hope he deserves your encouragement.
Sir Patience Ward, Lord Mayor.] At our Sessions at the Old Bailey, another Judge did screw himself into the Commission officiously, and came into the Court; where Judge Dolben was against bailing Mr Christian. And truly he has deported himself so well, that he deserves your favour.
Sir William Pulteney.] The Justices of the King's-Bench gave the Directions, and it belonged to Jones to discharge the Grand Jury. I have heard Justice Dolben say, that this was the only thing that troubled him in his Life.
Sir Gilbert Gerrard.] Greater Zeal and Honour I never saw than from this Judge at York; and he gave discountenance to the Jury that behaved itself ill there.
No Question passed upon Mr Justice Dolben.
[Resolved, Nemine contradicente, That this House doth agree with the Committee,
1. That the Discharging of the Grand Jury of the Hundred of Oswaldston, in the County of Middlesex, by the Court of King'sBench, in Trinity Term last, before the last day of the Term, and before they had finished their Presentments, was arbitrary and illegal, destructive to public Justice, a manifest violation of the Oaths of the Judges of that Court, and a means to subvert the fundamental Laws of this Kingdom, and to introduce Popery.
2. That the Rule made by the Court of King's-Bench in Trinity Term last, against the printing of a Book, called, "The Weekly Packet of Advice from Rome," is illegal and arbitrary; thereby usurping to themselves Legislative Power, to the great discouragement of the Protestants, and for the countenancing of Popery.
3. That the Court of King's-Bench, in the Imposition of Fines on Offenders, of late years, hath acted arbitrarily, illegally, and partially; favouring Papists, and persons Popishly affected, and excessively oppressing his Majesty's Protestant Subjects.
4. That the refusing sufficient Bail, in those cases wherein the Persons committed were bailable by Law, was illegal, and a high Breach of the Liberties of the Subject.
5. That the expression in the Charge given by Baron Weston, (See p. 59.) were a scandal to the Reformation (fn. 4), and tending to raise Discord between his Majesty and his Subjects, and to the sub version of the ancient Constitution of Parliaments, and of the Government of this Kingdom.
6. That several Warrants issued by the King's Bench are arbitrary and illegal.
Resolved, Nemine contradicente, That Lord Chief Justice Scroggs, Mr Justice Jones, and Mr Baron Weston, be impeached upon the said Report, and the Resolutions of the House thereupon.
Ordered, That the Committee appointed to prepare an Impeachment against Lord Chief Justice North, do prepare Impeachments against the said Lord Chief Justice Scroggs, Mr Justice Jones, and Mr Baron Weston.]
Debate on the Warrant of Execution of Lord Stafford.
Serjeant Maynard.] I cannot find fault with the King's Mercy in remitting part of the sentence against this Lord; but this Question has arisen, I believe, that the Lords and we may be at difference upon it. Either the Papists hope that, by it, this Lord may be acquitted, or that we may so differ, that all business may be at a stand.
Sir William Jones.] I differ from what has been said. I think that the proposal of this matter from the Sheriffs does not deserve blame, but thanks, and that they did well to apply themselves to this House. I have considered of it, and I think there is no reason to go to the Lords about it; it will not prejudice us so much as some apprehend. The Impeachment is at our prosecution, and the Judgment at our suit. Death is the substance of the Judgment; the manner of it is but a circumstance. If a Nobleman be judged to be hanged for Felony, that he may be beheaded by the King's Warrant Lord Coke doubts; though the Judges argued that, in the case of Lord Castlehaven, who was condemned to be hanged for Buggery, and his Judgment was changed into beheading. The Judgment against a Woman, for HighTreason, is to be burnt, but we know frequently that they have been beheaded, as was Anne Bullen. I take it easy to show, that, if the substance be preserved, which is Death, the circumstances may be varied. No man can show me an example of a Nobleman that has been quartered for High-Treason: They have been only beheaded. But now, what shall we do in this case? Shall we desire the Lords to do what was never done before? By nature, Englishmen are not so severe; as if the substance could not be performed without the circumstances. What is then to be done? Either Execution will be done by this Writ, or by Conference you will complain to the Lords, that Execution is not ordered according to Judgment, or that they have not done, in the Upper House, what was never done before. To satisfy the Sheriffs, I would pass a Vote, "That this House is content that Execution be done upon Lord Stafford, by severing his Head from his Body."
Sir Thomas Player.] I desire that the Sheriffs, for respect to them, may be called in.
Resolved, That this House is content that the Sheriffs of London and Middlesex do execute William late Viscount Stafford, by severing his Head from his Body only.
The Lords sent down Mr Seymour's Answer to his Impeachment.
The Speaker.] I think this ought to have been delivered at a Conference; as the Amendments to the Bill of trying the Peerage ought to have been. I hope you will consider of it.
Sir Francis Winnington.] I do not know how long we are to sit, for no steps are made towards setting us right. I believe we are not to sit long. In the condition we are in, I would have the Committee public, that draws the Impeachment against the Judges; that the World may see our Reasons for what we do, as well as our Votes, and that we have Reason for what we do.
Colonel Titus.] There can be nothing secret at a Committee. The Room is generally full of Strangers. And are we afraid it should be imparted to the People? I would have the World see what excellent Judges we have, and what fort of hands the People are in. They talk of our flying at all Great Men, as common traducers of the whole Government. Some may think that this is not to punish Malefactors, but to put ourselves in their Places; therefore, to prevent such reflections, pray justify your Votes.
Mr Colt.] I am against printing. I would not print, till you impeach the Judges; they will, else, turn the Evidence against them that have informed you.
Mr Love.] I desire that the Names of the Witnesses may be printed, for their Honour, that those poor men may be known to assert the Right of the Commons of England. Judge Pemberton held up his hands with admiration at the Proceedings at the King's-Bench (fn. 5); and what became of him afterwards, you all know.
Mr Palmes.] I am afraid of the Precedent, if you publish your Evidence before you have drawn the Impeachment.
Sir John Hotham.] By printing it, you intend to disperse it through the Nation. It must be paid for by the Post, and will be chargeable, therefore I hope you will take care it be printed in as little paper as may be.
Colonel Birch reports the Examination of the Complaint against Richard Thompson, Clerk, Minister in Bristol.
[Ordered, That the Report be read to-morrow morning.]
Friday, December 24.
Sir Richard Corbet reports the merits of the Election for the Borough of Bury St. Edmunds.
Serjeant Maynard.] If this was an ancient Borough, and had power to send Burgesses to Parliament, it cannot be restrained in it's Privileges by a subsequent Charter. Then the Question is this: Suppose they have not sent Burgesses for a hundred or two hundred years— There is mention of four Precepts in Edw. III's time, &c. Melcombe Regis, Dorchester, Amersham in Buckinghamshire, and other Places, sent no Burgesses to Parliament for some time. The intermission of sending was above fifty years. If you deny this, you will unburgess many Towns that now send, though formerly disused.
Mr Harbord.] I have searched Records how this Borough came to be discontinued. The King formerly thought himself too weak for the Barons and Churchmen; and that occasioned the increase of the number. Waltham and Glastonbury Abbeys had none, because sometimes they could not govern them. Several Abbeys have had Executio Brevium, but did not return Parliament-men. This Borough is of sixty years possession, and if you destroy this, you destroy your own Rights.
[Resolved, That Sir Thomas Hervey, Knight, and Thomas Jermyn, Esquire, are duly elected for the said Borough.]
[The Report from the Committee, appointed to examine the Complaint against Mr Thompson, was read (fn. 6).]
Sir Robert Markham.] I would not send him to Rome, for fear that he is their Chaplain already, but I would banish him to Geneva; for he says, "They are worse than the Devil that are Presbyterians." Put him into the Bill of Banishment of the Papists.
Sir Francis Winnington.] I take this business to be of great concernment. When I speak against such men as these, I speak for the Church. Three things this Report runs upon. First, bold and impudent Reflections on the King; and it is our Duty to take notice of such men. Next, I never heard any man so confidently and rantingly assert Popery; and next, asserting of Arbitrary Power. He is a most admirable Preacher, and takes upon him to assert those things! There were many Witnesses heard—He is restless in and out of the Pulpit in imposing these Doctrines, and this magnifies his offence, that it was done in interval of Parliament, in the boldness of the Papists. It is worthy your consideration what to do with this man. I have heard of a Precedent of sentencing such a Person to ride through the City with his face to the horse's tail. If you banish him, it is the way to make him a Cardinal; such Company as you intend in your Bill is a Preferment to him—Some men, we see, will struggle hard to keep the Protestants from being united, and I must believe that, at the bottom, they love Popery better than the Protestant Religion. We may raise a dispute amongst the Lords—Though the man seem too little to impeach, yet his Crimes are great enough for the Commons of England to charge him upon; and let the Bishops see what kind of Cattle these are, that scandalize the Church. Therefore I would resolve upon some Questions, viz. "That he has impudently scandalized his Majesty and the Protestant Religion;" and when you have put these to the Vote upon him, the best way is to make him exemplary. I was thinking of a short Bill, to put a Character of Disability upon him, for really there are such a multitude of people in the Plot (and that borders upon it) that you cannot well impeach him. Such sort of People as these absolutely endeavour to destroy the Doctrine of the Church, and to bring in Popery, and such as those that foment Dissentions amongst Protestants.
Serjeant Maynard.] This Thompson is as naughty a man as can be; he has scandalized Religion, fallen upon the dead, that most excellent Princess Queen Elizabeth (fn. 7), and scandalized the Protestants in the Pulpit, besides prosecuting men for not coming to Church when the Churchdoors were shut. I wish you could punish him as he deserves. I think he that scandalized the Queen of Bohemia had Sentence, by Impeachment, to ride with his face to the horse's tail (fn. 8). But I would not send him beyond sea, for there he will be favoured. I would fain see how the Fathers of our Church will look upon this man. I wonder that he has been suffered in the Church so long. I would impeach him to the Lords, and then see whether you may mend their Judgment against him, in a Bill, which will be much more terrible.
Sir Thomas Lee.] It is necessary that you take notice of this matter. This spiritual Sword, which they all complain of, does the mischief. If the Bishop of the proper Diocese had done his Duty, he had saved you this Labour. Therefore I would pass a Vote, "That he is a scandal to his own Function, and that he has dishonoured the King;" and add what you will else to it.
Colonel Birch.] The great tendency of the Evidence was, "That he defamed and cried down the Reformation." Pray put that in its proper place.
Colonel Titus.] When one considers what monstrous Conspiracies are against our Liberties, and to change the Government both of Church and State! There are a sort of Protestants, who make use of the Profession of the Protestant Religion, to injure the Protestant Religion. And where did this Mr Thompson do this, but in one of the most Capital Cities of the Kingdom? His punishment cannot be too great. He has not only defamed the King, but spoken reproachfully of the Protestant Religion, and of Queen Elizabeth. No one Protestant would do it, and he has cast the Plot upon the Protestants. Should you pass but a light Censure upon this man, he would laugh at you. Therefore be sure that in your Vote you hit upon every thing he is guilty of. Two or three Gentlemen may withdraw, and word the Question.
[A Bill for exempting his Majesty's Protestant Subjects, dissenting from the Church of England, from the Penalties of certain Laws, was read a second time.]
Sir Thomas Meres.] This Bill repeals, or alters, a great many Laws; but as to the effect of the Bill, my inclination has gone along with the Bill many years. There was a Bill brought in formerly to this purpose, but not so full as this; but for that time it gave a great deal of satisfaction. Some of this Bill is good and beneficial to be done. I desire to go on in the worship of God as I like. If you change Ceremonies as to Habit and Gesture, they are things indifferent; but if a Person be of invincible ignorance, though of Conscience, I would not hurt that man. The Oath of Allegiance and Supremacy I would have taken by such as come in to the Church, and the Test against Popery—I would not have it give offence in the way, when the end is good. There are a moderate Party of the Church of England, and not a lordly. They that do exceed the Liturgy are Non-conformists, as well as they that come short. I do not doubt but, when this Bill is passed, most of the Dissenters will come in to the Church with that moderate Party, especially seeing that it is their interest: They will gain them by preaching and moderation.
Colonel Birch.] I would have something amended in this Bill. As this Bill is penned, the Quakers must bring two persons to swear that they are not Papists (when they refuse the Oaths) but Dissenting Protestants. I cannot, for my part, believe they are so, and they cannot bring people to swear it; therefore I would have them named "Quakers" in the Bill, and not "Dissenting Protestants."
Sir Christopher Musgrave.] This Bill interferes with your Bill "for uniting Protestant Diffenters." This Bill seems as if every one might do what seems good in his own eyes, and does not agree with the Title nor Design of it. The words "Dissenting from the Protestant Religion" seem to license Quakers, who are no Protestants, and give Toleration of a Religion that we do not know. Will you associate these men that are not Protestants? Will they assist you against the Papists? They will not fight, nor swear as Evidence, nor be of Juries. They will be of no advantage to the public Defence, and are a sort of People that will subvert the very foundation of Government. You have great security in Juries, and these are a sort of men that will not be of them. There ought to be three Witnesses to a Will, and should one of them happen to be a Quaker, good-bye to your Will! I would have no Instruction to the Committee about Quakers.
Sir William Jones.] I desire to answer some things that fell from Musgrave. I take it, this Bill does not interfere with the former. That opens the door to spiritual Promotions to Dissenters, as well as others, under such and such qualifications. This goes not so high. Such as are moderate in their desires, only, to be quiet. When we consider that it is impossible to deal with them by force, but by civil treatment they may be wrought upon; and no doubt but the Papists have offered them larger Terms than this; and if they are refused some liberty now, the Papists hopes will be more upon this sort of People, though I believe always they were groundless. But do they desire to be admitted to be qualified, either for the Church or Cathedral?—They are to pay Tythes, and, during their meetings, the doors are not to be shut. If they say any thing against the Government, they forfeit the favour of this Act. But it is said, "That the Quakers are not Christians, they will not take Oaths"—I will not speak in their justification, but I hope, in time, they will see their error. But do you put them at ease fully. If they will not serve on Juries, they will be amerced, and if they will not swear, they will be fined by the Court. I think there have been some Votes already, "That the Laws against the Popish Recusants ought not to touch them." If you have security, their doors being open, and these men think themselves better used, than if they were under the Papists, it cannot hurt the Protestant Religion. But it is said, "They will not fight." But they may fight with their purses, and they believe they may fight against the Papists. In Josephus's History, the Jews would not fight against the Romans on the Sabbath-day, but they soon found their fault, and did. Other things the Committee may take care of.
Mr Love.] I did speak with some of the Quakers at the Door. I said to them, "How can you expect, when you will not engage to assist the King in your Persons, to have Benefits from the King?" Says one, "We had like not long since to be robbed, and we fought stoutly, and so we will do against the Papists." A Friend of mine abroad had the curiosity to see the Convents beyond sea of the English Jesuits; where they fell into discourse, and the Fathers fell foul upon Archbishop Laud, "That he was the greatest Enemy they had in the World, for he had done more in a few years to bring in Popery than they could do in an age. Our Principle (said they) is to divide you, and to make Protestants fall upon one another." I had the Honour to sit here in the Long Parliament, and it was then the Wisdom of the House to see whether we were all Protestants, by ordering all to receive the Sacrament. I could not (fn. 9), and disobeyed the Order, and they named me for one that did not; but there were many pieces of bread thrown under the Table not received. Said a Gentleman, "I am afraid he has some Popish Principles; he has been long beyond sea." Sir Thomas Clifford fell upon me then. Who made the long Declaration against the Bill of Conventicles, but Clifford, Strickland, and Swale (fn. 10) ? (I speak this knowingly.) Said they, "Do you not see yourselves undone? You are torn in pieces by the Church of England; you can be no worse amongst the Papists." In Coleman's Letters, you may remember the Project, when the Papists got the upper hand, of letting loose all the Laws against the Protestant Dissenters, and repealing those against the Papists, &c. and you know, it was brought into the Long Parliament, "That all the Estraits against the Papists were not above three pounds, and those against Protestant Dissenters ten thousand pounds." I had then such an apprehension, that, if the House gave up those Laws against the Papists, and if we should have a Popish King, the Plague of Plagues would be upon this Nation. I hope we shall now take all Dissenters in, to save the Nation, with heart, hand, and shoulder, to unite against Popery. Let the House make it their Interest to bring all men in. If the Ship sinks, who will take care of his Cabbin? I desire you will instruct your Committee, that, if the Law passes at all, it may answer your end, and that no man, under pretence of Religion, may be exempted from chargeable Offices, &c.
[The Bill was ordered to be committed.]
The Vote against Mr Thompson was then brought in, [and agreed to, as follows:
Resolved, Nemine contradicente, That Richard Thompson, Clerk, hath publickly defamed his sacred Majesty, preached Sedition, vilified the Reformation, promoted Popery, by asserting Popish Principles, decrying the Popish Plot, and turning the same upon the Protestants, and endeavoured to subvert the Liberty and Property of the Subject, and the Rights and Privileges of Parliament, and that he is a scandal and reproach to his Function.]
Sir William Jones.] You have made a just Vote, but if you do no more, he will come off too lightly. You may trust him now with this Vote in any Judicature; but I would stop the mouths of his fellows, and in the face of all the World, I would publish the Evidence against him, and let the Church-men see what sort of sons they have. They who think him too little for Impeachment, think him too big for a Bill; but, to prepare the Lords and all men for his Sentence, I would impeach him.
Colonel Titus.] No man thinks that this Thompson deserves punishment, and a severe one, more than I do, but I am at a stand what that shall be. You are moved for "Banishment with the most considerable Papists." I do think him a Papist, and much more because he calls himself a Protestant. I do remember several Persons you have impeached, an Earl into a Duke (fn. 11), and an Earl almost into a Marquess (fn. 12), and some into being public Ministers. The Effects have been like Thunder upon Mushrooms; it does but make them grow, not blast them. Dr Maynwaring was impeached by the Commons, and was brought to the Bar on his Knees in the Lords House, and he there recanted what he had written and preached. He was Dr Maynwaring before you impeached him, and was Lord Bishop of St. David's after. Some have moved, "That this Thompson should ride with his face to the horse's tail;" but that would be something severe to one of his Coat; but seeing he has forgot his Coat all his life, the Commons may forget it for one day. I would impeach him, that the Bishops may see what their sons have done: Hœc est doctrina filii vestri. They have so countenanced this Doctrine, and have been so far from punishing him, that they have preferred him; and therefore they are thought, by ill People, great favourers of this man. Therefore I would impeach him before the Lords.
Sir William Jones.] I cannot tell when his Impeachment will have an end, whether ever, or no; therefore I would publish what is against him, as a warning to other Church-men, and in Justification of yourselves.
Sir Francis Winnington.] I look upon this Charge against Thompson as a national business, and to be part of the Plot; and such things as these are fit to be known to the World, that they may see what is libelled upon the King.
Mr Harbord.] Some of the Clergy are so afraid that we should unite, that they are almost Papists themselves; and as for the Church of England that have endeavoured to asperse us, let the World see what sort of Cattle they breed up.
[Resolved, That the said Richard Thompson be Impeached, upon the said Report and Resolutions of the House: And a Committee was appointed to prepare the Impeachment (fn. 13).
Ordered, That the said Report, and Resolve of the House thereupon, be forthwith printed. The House then adjourned to]
Thursday, December 30.
On Mr Sheridan's Habeas Corpus (fn. 14).
Mr Boscawen.] Mr Sheridan stands committed, as a Judgment of the House, for Breach of Privilege. It seems to me, that his Commitment does run on the hinge of an Act of Court in a Criminal Cause, which we may suppose in Execution, where a Habeas Corpus does not lie, and he is not bailable, and they will not discharge him in a Court of Criminal Causes. I think his Commitment stands good, and you are to consider the Privilege of the House of Commons.
The Speaker.] Give me leave to state the matter. The thing, in fact, stands thus. Sheridan and Day were committed by your Order the ninth of December; they were brought to the Bar the same day (fn. 15), and ordered to continue in Custody during the pleasure of the House, and no Person to be admitted to come to him unless it were with necessaries. Then that Order was mitigated, and you ordered him to be taken into Custody. Then, you ordered a Committee to examine him and Wilson. The Act directs, "That the Judges, within such a time, grant a Habeas Corpus, when desired, and they are required to bail where the Act gives that liberty." Now the Question is, Whether a Habeas Corpus lies in case of any of your Commitments, the Parliament sitting? (And he reads the Act.) In the Act here is nothing relates to Parliament-Commitments. The "Head-Court" is the King's-Bench, and this seems not to relate to the Parliament. This is a Commitment of Parliament, and if so, the Judges cannot grant a Habeas Corpus.
Serjeant Maynard.] You are going upon a sudden to give an Opinion in a thing not thought of before. As I take it, his Habeas Corpus is granted: Now what is to be done in this case? I desire not to be concluded in any thing I shall now say, but I will tell you my apprehension; Where shall he go to be bailed, but to this House? Your remedy for Breach of your Privilege is Commitment, and no Action can be brought against either the Lords or Commons. When you commit a man, you do not always express the Cause; if the Judges bail him, he is gone, and there is an end of him. I would have this matter let alone till to-morrow.
Serjeant Stringer.] This is a matter of great concern. I would consider whether a Judge can deny a Habeas Corpus. By the Act, the Jailor is to pay the Penalty of five hundred pounds upon Affidavit "That he is refused the Copy of his Commitment."—So far a Judge may safely go. But the great Point is, Whether the Judge can discharge him. If so, farewell all the Privileges of the Commons! When the matter comes to a Habeas Corpus, the Judges may be informed how he stands committed. It is said, "That this Sheridan is a second Còleman," and, if so, let him be hanged as he was. I would take time to consider this, and I believe the Opinion of this House will go a great way with the Judges.
Sir William Jones.] This matter is of great concernment; it concerns the Privileges of both Houses, and next, the liberty of the Subject; and I would not have you do any thing in it hastily; but to appoint a Committee to consider it, will seem to make the thing too difficult; but yet you are not ready to come to a Resolution now. I must deny "that the Judge must grant a Habeas Corpus to this man." This is not a case at Common-Law, but you see that sometimes in discretion formerly they required a Copy of the Commitment. But by this Act, the Judges grant a Habeas Corpus upon a Copy of the Commitment. In this case, the Judge is in no danger upon refusing the Habeas Corpus. The Serjeant says, "Sheridan sent to him for a Copy of his Commitment," and the Serjeant has not granted it to him; so the Habeas Corpus is not yet granted. If you please, I would not commit this, but adjourn the consideration of it.
Sir Francis Winnington.] All I move for is this, "That no Memorial nor Entry be made upon your Books for the present;" but upon the whole frame of the Act, I see no Habeas Corpus lies upon a Commitment of Parliament.
[No Entry was made in the Journal, and] it was adjourned to to-morrow.
Sir Francis Winnington.] You have been moved for "a Bill against Popish Pensioners," and I desire you would punish the old Pensioners, and prevent new ones; especially since the Report has been, that men are to have Places; which is a scandal in time of Parliament. I would have no man have a Place, whilst he is a Member of Parliament, without acquainting the House before of it.
Mr Harbord.] So many artifices are used to asperse your Members, against the public good, that I move that no person may have any Place during the Parliament without leave of the House, or else that he be incapable of being a Parliament-man if he accept of it.
Colonel Titus.] As I came to the House this morning, I heard myself to be a great man, and that I had a Place at Court, and had so many Compliments upon being a great Minister, that I began to flatter myself that I was really so; but now I plainly discover that I have no such Place at all. After you have so proceeded against Sir Robert Peyton for his truckling for a Place, should I accept of a Pension, or a Place, it would be no wonder if I should be brought upon my knees, as he was. I never heard that man said to have kept a Fort, for it was never assaulted. A woman with an ill face is seldom tempted. I protest, I never heard of any Place till I came hither this morning. I met with another Report, "That I had been with the Dutchess of Portsmouth." If any man can prove, whilst I was of the Bed-Chamber to his Majesty, that ever I spoke a word to her, I will lie under all your Accusations. I know not a better design, nor more dextrous, to carry on Popery, than this of raising jealousies. Let me repeat that part of the Litany, "From envy, hatred, and malice, Good Lord, deliver us." If my own actions will not justify me, my words never will. I think you have been regularly moved, "That the Papers about the Pensioners in Sir Stephen Fox's hands may be reviewed." If any man have no impediment for Preferment, let him take it, but not be a Parliament-man. If a man think himself qualified for a Place, let him leave the Parliament, and accept of the Place. Lead us not into temptation, we pray daily. The House will always have power over their Members, and I move that they may have no employment during Parliament.
Mr Vaughan.] There was something of this nature offered at in the Long Parliament, but it fell. Now I think this Parliament consists of good men, able to maintain themselves. Prevent such Ulcers in your own Bowels. That Bill then offered, "That upon acceptation of any such Office, a new Writ should issue out, to chuse another Person." I am not for Gentlemen purging themselves. I believe them honest men.
Colonel Titus.] I have been congratulated for a great Place, and I humbly desire Vaughan's leave to clear myself. I say that some of us were accused of Places, but not that Vaughan did.
Colonel Birch.] I have a Place, and I had it before the Long Parliament was called, (I was one of the secluded Members) and so I am before-hand. Though Vaughan has not gone much abroad, yet it is the talk of the Town. I have sat in that Corner amongst those Gentlemen who have been talked of for Places, and had there been provender amongst them, I should have been crumping with them. But now there are no such Places or bargain made, to the shame of them that reported it. Some corrupt Judges formerly had their skins stuffed with hay, for an example; I desire those Gentlemen-Pensioners, if there be any, may be stuffed with straw, and I am content. If they received Pensions in the Long Parliament, I have heard that all done in such a Parliament is null and void; that it has been so formerly.
Mr Garroway.] I think, a Vote in this case will not do your business, nor answer your end. Therefore I am for a Bill.
Mr Hampden.] I am for doing this Bill effectually. Perhaps I wished it some years ago. I am now for a Bill, but I would have a Vote first, and thus far a Vote will be obligatory to men of worth and honour: If any man will say that he is not obliged by that Vote, let him. Pass such a Vote first, "That during Parliament we may have no Places nor Pensions to the scandal of the House."
Sir William Jones.] I like both the Questions, both for a Vote, and a Bill, but I am sorry that you have no means to bring things to light about the Pensioners. Mr Bertie is gone abroad, and I am afraid will not return till this Parliament be up. When men do not act for such Places, in time the World will be undeceived, and let that pass. "Places of Profit" will be a word too general in your Question; they may have Places in Corporations; but I would add to the Vote, "Not to exclude your Members from the Magistracy, as Lord Mayor or Sheriff of London, &c." It may be convenient to have them Members of Parliament. I would have them only excluded Offices from Court, and Places from his Majesty.
Colonel Titus.] Suppose his Majesty should have occasion to send Ambassadors, or Admirals, it may be those are the ablest men for it. Suppose we should have a War, will you not let your Members fight for you? The way to hinder a thing, is to clog it. Therefore pray pass the Vote as it is moved.
Sir Thomas Lee.] I had an Office conferred upon me in Parliament (Commissioner-Admiral) and got out of it out of Parliament: My Country habitation was of more satisfaction to me. No man knows what a man will be, but himself. I think you may leave out the words, "Without leave of the House." You will have no advantage by it.
Sir Francis Winnington.] What I moved this day, was not to vindicate the Reputation of your Members, but to prevent Reflections without. I believe the People will be satisfied with any of your Members having Places whom the House thinks well of.
Sir William Jones.] I would not have a Question pass that cannot be well defended without doors. Shall the World say, "You will make a Vote (be the occasion ever so great, or the man ever so fit) that he must not accept of an Office?" You will hardly find arguments against the unreasonableness of it. If you leave it in the power of your Member to put himself out of Office, then it is another thing. This Parliament is not like to sit so long as to send Members Ambassadors out of it; besides, it would seem a very strange thing, that the House should ever mistrust itself so far, or has any Gentleman so much authority as to persuade the House to it? I have put myself, and will, out of the possibility of it, and I desire the words may stand in the Question.
Resolved, Nemine contradicente, That no Member of this House shall accept of any Office, or Place of Profit, from the Crown, without the leave of this House; or any promise of any such Office, or Place of Profit, during such time as he shall continue a Member of this House; [and that all Offenders herein shall be expelled this House.]
Friday, December 31.
On the General Naturalization of all Alien Protestants, and allowing them liberty to exercise their Trades in all Corporations.
Mr Powle.] There is Jus Suffragii, and Jus Civitatis. The Bellum sociale came by such a Naturalization. The Crown may fall to the Distaff, and England may be filled with Foreigners, to our destruction. In King James's time, an unica of Scotland of the same nature was opposed.
Sir George Downing.] Spain is the richest Country, and the poorest Country; they have all the Money, and no Money; we and Holland have it all in Manufactures, and they have only the honour of being the Carriers. France draws more thither by Linnen-cloth, than we in all our Trade. It was the care of our Ancestors to encourage Manufactures, for before we had only the honour of shipping off the Wool; the Manufacture was in Foreigners, and the Manufacture was double the price of the Wool; and your Drapery was brought in by Foreigners, and Silk Manufacture. Invite Foreigners in, and do that with them that is sober and moderate, and you will have effect, if you give them liberty to work out of Corporations: But if they shall have equal liberty with those within, (a Gentleman may give three or four hundred pounds with a son,) and they to have the same liberty with natives, I am against that, and that they shall not be, nor chuse Officers. I would only have the Bill enable them to buy land and exercise their trades.
Mr Boscawen.] I think it is not for the advantage of London that they should come into Westminster, and the same to other Corporations. But in answer to Powle, the Question is, Whether this Bill is good for England? Therefore a limitation for France for bringing in Protestants, and I suppose the French live under such persecution, that they will endeavour to keep out that Government they have so smarted under, should the Crown fall to a Distaff. I would make the Bill temporary, for seven years only.
Sir John Knight.] There are several Laws, that an Englishman shall not trade, unless he has served seven years. Take care that this Bill of Naturalization give them not more Privilege than the King's Subjects.
[A Bill was ordered to be brought in.]
[A Bill for the relief of the Subject against arbitrary Fines was read a second time.]
Serjeant Maynard.] The Fines imposed by Magna Charte, and at Common Law, are with a salvo contenemento. Ransom is another thing—If the Judges exceed, you may call them to account. A Person that suborned Witnesses was fined four hundred pounds, and the value of the Estate forsworn was thirty thousand pounds. Are all offences alike? There must be a difference in the Fines. For Trespass, &c. a man was fined forty shillings. To assault a man, that is another manner of Crime. I would not have all manner of Crimes fined alike; still there is a consideration of all circumstances. Next thing in the Bill, "That a Jury shall enquire into the Fine;" and a Jury that never heard the Fine, when the Judges that hear the circumstances of the Offence, and the Jury that never heard of the Evidence with the circumstances—And here, the Judges that never were present at the hearing the Cause, must assert the Fine (it being "all the Judges.") But this is not all; a Writ must come out to enquire what the Estate is of the Person fined, and they must assess a Fine, and undo all that the Court has done, and this enquiry is to be by a Jury, such as the Under-Sheriff shall think fit—Yorkshire, or Devonshire—and a Jury must enquire, that knows nothing of the ability of the man. I think this Bill amounts to an indemnity of all villainies. There are great complaints of the Judges not doing their Duties to fine—I have seen the Judges mightily affected with a Crime, but it has died off; it may be, the Offender has been turned over the Bar (as Reading)—and a Country Jury must enquire—and so you will never have any punishment of Offenders.
Mr Boscawen.] I hoped, that as Maynard found fault with the Bill, so he would have showed you some remedy. A Countryman of mine, an Attorney, [Mr Browne] but for sending a Book to Bombay (in the East-Indies) was fined a thousand Marks, and was not worth a thousand Shillings. When the Judges become as great Malefactors as other men, there must be some remedy. If it be referred to a Jury, the Evidence may be heard on both sides. If the Judges had fined men according to Magna Charta, with salvo contenemento, there had been no need of this Bill. I hope that Maynard will attend the House, and help mend this Bill.
Mr Foley.] Men have been fined, not according to their Crimes, but their Principles: Sometimes because they have been Protestants. This Bill does say; "That it is in the power of the Judges to fine still, but not to fine what they please." The rest of the Judges of the King's-Bench may inform themselves of the Fine by the Lord Chief Justice, and the other Judges may inform themselves as they do. If you can help excessive Fines any other way than by this Bill, I am content.
Sir William Jones.] Maynard has objected against this Bill, "That Fines for all Offences will be equal;" but no Fine is to be above an hundred pounds till all the Judges meet, and so there will be no danger of equality of Fines; for either the Offender has ability to pay the Fine, or he has not. But he says, "What! shall the Judges fine; who heard not the Cause?" Suppose the Cause be tryed in the Circuit, and there may be but one Judge that has heard the Cause—It is not often that Fines exceed a hundred pounds, and the Judges may meet—Scarce three Causes in a Term require it. But after all this folemnity, the Jury examine the actions of the Judges—The Fine may be unequal, and they may moderate the Fine more than they ought to do; that may be mended; but pray take care, upon the Commitment of the Bill, that the Jury be of better Quality, and may know the ability of the Person. We have had excessive Fines imposed by the Judges. I would commit the Bill.
Sir Francis Winnington.] There is a mystery in the matter, how these Fines, imposed by the Judges, come to be so exorbitant. The Courtiers have begged these Fines, and then they are set high by the Judges; a shrewd instance in a Fine lately set upon a man for words at the Election at Eye in Suffolk, and Sir Charles Gaudy begged the Fine. If you commit the Bill, you may alter all but the ti le and purport (so I have heard.) I would have it considered, that a good Bill in general may be framed to check these exorbitances in the Fines imposed by the Judges.
Mr Powle.] The scope of this Bill is, that a man shall not be fined, by the Judges, more than he is worth. Mr Arnold had his throat cut, and was desperately wounded in other places (fn. 16). The Assassinant was fined forty pounds, and the man not worth thirty-five. These things usually come from great men, who hire such villains to do the act, and will pay their Fine for them. It was said anciently, "It were better to live in a City where nothing was lawful, than where every thing was lawful." I take it to be the wisdom of our Government to have some fining discretional. If you take away that power to punish such enormous Crimes, there will be no safety in the streets. Amerciaments are with salvo contenemento, but Fine is sometimes Ransom, and must be high.
[The Bill was ordered to be committed.]
On Mr Sheridan's Habeas Corpus (fn. 17).
Serjeant Maynard.] I am clearly of opinion that this is a Cause out of the Statute of Habeas Corpus. That Law was never intended otherwise than for Commitment from inferior Courts, and not Parliament. All Bail is in order to Tryal; when an Act of Parliament says "A lower Court," it never intends a higher. A Commitment is not only a Judgment of this House, but an Execution; and though the Statute does not mention the Parliament, other Courts shall not grant it in Judgment and Execution—There can be no Tryal of one committed from this House, but in this Place, and this Act is not intended for Commitments from hence.
Sir Francis Winnington.] It is plain the Parliament is not to be included by this Act; for the Parliament was informed, that there was a Habeas Corpus to remove a man from the Tower, and they sent him to Jersey or Guernsey. So it plainly shows that it was for the growing evils of removing men out of the reach of Habeas Corpus, that this Bill was formerly brought in; and that it was never intended against Commitments of the House of Commons. A man is committed here in Execution, and it was never intended that injustice should flow from this House. As Mr Sheridan has repented himself of bringing this, I could wish he would of his other crimes also.
Sir Thomas Lee.] Consider the advantage of putting this Question, moved from the Bar by Jones, viz. "That no Habeas Corpus does lie during the fitting of this House." This Court is a superior Court, and no inferior Jurisdiction. I do not see why you should make any Vote in this case. The Judge has the Law before him, and your Vote cannot alter it. You may be prejudiced by subjecting your Vote to the interpretation and scanning of the Judges.
Sir William Pulteney.] In this case, a Vote is necessary, else the Judges will not know what they ought to do, and what not. You have voted, "That the Judges cannot grant a Habeas Corpus against the common Privileges of this House." I would have the Judges take notice of it, and therefore I am for a Vote. I do not know that this House has power to commit, but in case of Breach of Privilege, and I would so restrain it in the Vote.
Mr Paul Foley.] I have looked over the Act, and am of opinion that a Habeas Corpus does not lie in this case, and may be refused in case it should be required by this Act. A Habeas Corpus was never granted upon a Commitment by Parliament formerly; no Precedent can be shown of it. You commit for contempt, and it must be in such cases where the party is bailable. If you put a Question, I would be loth to have our Privileges (which is our only power) to be lodged in Commitments upon Impeachments, whereas we have power to send for all people, Commoners.
The Speaker.] This case is particular as to Mr Sheridan, and is out of the power of the Act of Habeas Corpus; and why will you make any Question upon it, upon general Commitments of the House?
Colonel Birch made a Motion, "That Mr Thompson, the Minister, of Bristol, might have his liberty upon bail, &c."
The Speaker.] The Articles of Impeachment against Mr Seymour were formed and brought in, and then you ordered the Commitment of him; you keep this man in custody, till the Articles are completed and reduced to certainty, and then will be the proper time to let him loose to make his defence. But what can he defend against, till he knows the Articles against him?
Colonel Titus.] I wonder at Birch, who made this Motion for Thompson, whereas he knows it must not arise from the House as a voluntary Act, till he desires it; therefore I would have him remain in Custody, till he petitions.
Serjeant Maynard.] If any man should be committed, and you should give bail, and the Party does not desire it, it would be strange. Suppose Sheridan should bring an Action against the Judge, if your Commitment be for Breach of Privilege, no inferior Court will judge of it; but if the Commitment be not for Breach of Privilege, you may mend it.
Mr Harbord.] I appeal to you, if ever you discharge a man that does not acknowlege the Jurisdiction of the House, and acknowlege his fault? Till he has done so, let him remain in custody.
The Speaker.] If you should do as Maynard moves, your Order for Breach of Privilege is, as if after Commitment they should mend the Record in Westminster-Hall, Sheridan was in custody before the Paper that reflected upon your Members, and broke your Privileges, was found. So the first Order for Commitment was upon another occasion.
Mr Paul Foley.] Though Sheridan was sent for in custody to the Bar, yet the continuation of him in custody was for Breach of Privilege.
Sir Thomas Lee.] I would have it considered how you will mend a Commitment afterwards; if he has a Copy of his Commitment, general, and now comes an Amendment of the Commitment, for Breach of Privilege, a month after? The general Debate ran, "That he held a dangerous correspondence with the Duke of York, and was a second Coleman." Gentlemen were sent to search his Papers, and found a Paper in his closet not printed nor published. Pray let the thing stand upon its own foundation, without mending it.
Sir Francis Winnington.] The famous case of Lord Shastsbury, when upon a Commitment by the Lords he was brought by Habeas Corpus to the King's-Bench Bar, there was no Return made, and he was discharged sedente Parliamento. If a Rule of Court be ill-entered, I appeal to you, if it be not mended every day in an inferior Court?
Mr Powle.] Whoever, in this Place, speaks for limiting your Power is not so favourably heard, as he that speaks to enlarge it. State super vias antiquas. I am afraid we are about removing the ancient Land-marks, which may return to their old bounds again. Your Power is part of the Judicial, and part of the Legislative Authority, and it is but part only. Anciently the Judicial Power of Parliament was exercised by King, Lords, and Commons; but for some ages past, we, and the Lords, by tacit consent, have had a separate Jurisdiction in that point, and they punish for their Breaches of Privilege, and we for ours. This case of Sheridan, I confess, goes beyond your ancient Privilege; they took no Jurisdiction upon themselves, but either did send to the Lords if the thing deserved an Impeachment, or dismissed it to the Law in the lower Courts at Westminster. I do not take the words in the Paper, found in Sheridan's study, to be a Breach of Privilege against your Members, he having not published the Paper. Here is neither actual force against your Members, nor Suits of Law. If the Courts below cannot reform your Error, it is fit you should do it yourselves. If this man be not in Custody for Breach of Privilege, I would release him, and all that are so committed, and reform your own Error.
No Vote passed in it, and the Debate dropped.