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, January 3.
A Message from the Lords, "That they have received a Petition from Mr Seymour, wherein he desires a Day may be appointed for his speedy Tryal; that their Lordships, finding no Issue by replication of the Commons, think fit to give this House notice thereof."
Sir Francis Winnington.] This to be proposed in a Message! There is something of art in the reflection upon the House. We have had Adjournments, and have endeavoured, several Days, that this business might come to issue, and now, here is a Message from the Lords, &c. Methinks, it might have been very easy for Mr Seymour to have sent to you hither to hasten his Tryal. I only speak that this matter is something curious, and very fine, yet, for the Honour of the House, pray proceed in it.
[Mr Seymour's Answer to the Articles of Impeachment was read.
Ordered, That a Committee be appointed to prepare Evidence against Mr Seymour, and manage the same at his Tryal.]
Sir Richard Corbet reports the Articles of Impeachment against Lord Chief Justice Scroggs (fn. 1).
Sir Francis Winnington.] I shall not press for security in matter of Life, but if you go not according to Precedents, will you not lose your Authority? But if it be, as Jones says, "That there is no Treason but by 25 Edw. III. &c." we are in a miserable condition. As we, on the one hand, will not go farther than former Parliaments have gone, so I would not go lower in this Impeachment in the matter of Treason.
Sir Thomas Lee.] It will be of dangerous consequence to call things by higher names than you can expect Judgment of from the Lords. There is no necessity to bring this upon constructive Treason. I would have the Debate adjourned to a fuller House.
Mr Hampden.] If the learned Judges of the Land will venture to overturn the Government (it is imputed to some sort of People that they would change the Government to a Republic) the Government may be changed another way by the Judges.
The Debate was adjourned to Wednesday, [in a full House.]
Tuesday, January 4.
The following Message from the King was delivered by Sir William Temple (fn. 2) :
"His Majesty received the Address of this House with all the disposition they could wish, to comply with their reasonable desires: But, upon perusing it, he is sorry to see their thoughts so wholly fixed upon the Bill of Exclusion, as to determine, that all other remedies for the suppressing of Popery will be ineffectual: His Majesty is confirmed in his opinion against that Bill, by the Judgment of the House of Lords, who rejected it: He therefore thinks there remains nothing more for him to say, in Answer to the Address of this House, but to recommend to them the consideration of all other means for the preservation of the Protestant Religion; in which they have no reason to doubt of his concurrence, whenever they shall be presented to him in a Parliamentary way; and that they would consider the present State of the Kingdom, as well as the condition of Christendom, in such a manner as may enable him to preserve Tangier, and secure his Alliances abroad, and the Peace and Settlement at home."
Mr Hampden.] This Day is ordered for calling over the House, which pray proceed to do, and I hope Gentlemen will attend, that we may be a full House.
Sir Francis Winnington.] I second the Motion for calling the House. It is my opinion that all those Gentlemen that have absented themselves all this Session of Parliament, are not true to their Country, and I hope, before this Day go over your head, you will put a Character upon Defaulters, and that you will consider the King's Message, which so much concerns both our Souls and Bodies.
Colonel Titus.] I hope you will consider the absent Members; we want the courage of those absent. I would have none slip their necks out of the collar. I would have them go as far as we do, and on those that are absent I would lay the character they deserve.
Lord Russel.] If the House be inclined to put off the consideration of the King's Message, then pray call the House, and I think you may go on upon it. Now those who have advised the King to this Messagé, I suppose, are making their court to the Duke. I am sorry the King is inclined more to Popish Councils than to us. I would set a brand upon them.
Sir Henry Capel.] It would be best for us to give our opinion of our difference from the Lords in the Bill of Exclusion, &c. in full House. It is strange to me, the Industry, Pains, and Charge Gentlemen have returned hither at in their Elections, and yet to see them not sit, I beseech you, call the House, and if they can give no good account of their absence, and have no reasonable excuse, put a severe censure upon them.
Sir John Hotham.] I am for calling the House. For Gentlemen to be absent now, it is wonderful to me! Not to say any thing of punishment, but when we see how busy Counsellors are to put such Answers upon the best of Princes, we ought to lay hands and heads together. Nothing will secure us but standing to this Bill of Exclusion, which is both for our Bodies and Souls, the Glory of our King, and the King of Kings. Let us, in a full House, stand together, and I hope we shall make an Association.
Sir Thomas Player.] I am for calling the House, and for some intimation, when the House is called, to keep us together. Never any Nation in the World that had a being, was reduced to so miserable a state as we are. We have sat now three months, and by what we have done, we have given new and fresh provocation to our Enemies. We have passed excellent Votes, and gone as far as we can to insure the Protestant Religion, but that has produced rage and revenge from the Papists. We have proceeded in Courts of Justice, where fair Tryals have been of great Conspirators, and one has been lately brought to the Block, and so we have farther exasperated those who lie in wait for our ruin. When you have been suffered to do this for three months, you are left without any security. Those things proposed for your security have been rejected. I have read That one man died for the People, but never that three Kingdoms must die for one man. When you please to enter into Debate of the King's Message, I shall say more.
Mr Boscawen.] I like very well to have a full House to-day; and that Gentlemen, when they are called, and have answered to their names, may not be gone, I would shut the Doors, and let none go out without leave.
Mr Booth.] If you would debate the King's Message, I would then lock the Doors; but I desire rather a farther time to consider of it, for it is saving or losing the Nation; therefore I move you to appoint tomorrow.
Sir Francis Russel.] Whenever you appoint a day for it, I would have the Doors shut, and that no man may go out without leave of the House.
[The House, according to Order, proceeded to the calling over the Members thereof, and the Defaulters, to the number of seventeen, were ordered into Custody of the Serjeant at Arms.]
[His Majesty's Message was ordered into Consideration on Friday.]
Wednesday, January 5.
The Articles of Impeachment against Lord Chief Justice Scroggs were read.
Article 1. "That he, then being Chief Justice of the Court of King's-Bench, hath traiterously and wickedly endeavoured to subvert the fundamental Laws, and the established Religion and Government of the Kingdom of England, and, instead thereof, to introduce Popery, and Arbitrary and Tyrannical Government against Law; which he has declared by divers traiterous and wicked Words, Opinions, Judgments, Practices, and Actions."
Sir Francis Winnington.] It is said, by Maynard, "That this Article is general." All I can say is, that it is a substantial Article, "To subvert the fundamental Laws of England, and to introduce Popery and Arbitrary Government by Words, Actions, and Opinions." That Article was a great Crime, when that learned Serjeant was concerned in the Impeachment of Lord Strafford.
Sir John Knight.] That Article was then of great importance. In Lord Clarendon's Impeachment, Lord Strafford's case was cited; but there they proceeded by Act of Parliament, and within two or three days passed it, with a Clause of not being hereafter drawn into example. I would have the Statute 1 Mary read, which declares "That nothing shall be construed Treason but what is already so by 25 Edw. III.—No otherwise declared, but by Act of Parliament." I would not, in behalf of the Subject, make new Treasons.
Serjeant Maynard.] What Knight says of 25 Edw. III. is very true, but by a distinction it must go. The Question moved is, "Whether any punishment of any offence can be by the name of Treason in Parliament?" No man can deny it. But enormous offences may be impeached by the name of Treason, notwithstanding the Statutes. There was a Treason at Common Law before the Statute of 25 Edw. III, and the Judges took upon them to determine Treason. But, by that Statute, the Judgment of Treason, in doubtful cases, is expressly reserved to Parliament, amongst other things. "But because men cannot think what sort of men may be Judges, they shall not proceed in a doubtful case, but shall acquaint the Parliament, which is not to have an Act made, but by Judgment in Parliament to declare it Treason." What Treason is, no man can define, nor describe—In that Statute it is not; but Treasons are enumerated; "only those, and those cases; if any other cases come before them, they shall not proceed upon them, but shall acquaint the Parliament. If an offence be committed, the Parliament shall judge whether it deserves the punishment of Treason." What if, as in our case, in interval of Parliament, there should be a contrivance to destroy all the Lords and Commons; is that comparable to the Treason of coining a shilling? After the Statute 25 Edw. III, many Acts were made Treasons on particular occasions, as in Hen. VI, Hen. VIII, Edw. VI. 1 Mary, "None shall be judged Treason, but what is so by 25 Edw. III, in reference to the Courts below." If an Act of Parliament does not name the King, it does not bind him. And will any man think that the Lords will let their throats lie open to be cut, and not judge such a Conspiracy to be Treason? Whatever offence deserves the punishment of a Traytor, the Parliament may impeach, &c. and the Lords judge accordingly. Before the Statute 25 Edw. III, a Lord did raise eight hundred men, &c. and it was judged but a Riot. Where the offence is a public destruction to the Nation, as all offences to the King, as Coining, &c. it is Treason; but in a Riot, the intention and scope is on particular persons, and was not judged Treason in the levying eight hundred men, &c. To destroy the inclosure of particular Persons, is not Treason; but to go in great numbers to destroy all inclosures in general, is Treason; for it differs in the scope and intention of the Party. In this case before you, here is a design and intention to destroy the Nation, and our Religion, and People combine to form Companies and raise Arms, and intend to destroy the Lords and Commons. Think you, that this cannot be judged Treason? Now comes the Statute, and says, "If such an offence, as men cannot define, should happen, the Judges are to acquaint the Parliament with it." And an Act of Parliament does not bind the Parliament unless the Parliament be named. General words shall never take away the Right of the Nation, in the Judgment of Lords and Commons. The words about Hen. VIII, and the taking his Wife again, &c. were as strange a thing as we can imagine— Since 25 Edw. III, in Rich. II's time, some that betrayed a Castle in France, by Judgment of Parliament, without more ado, were beheaded; and that is a different Judgment from the Law in case of Treason. What the Act 25 Edw. III. does reserve for Parliament, shall not be judged in any inferior Court. 1 Mary—Not to define, but enumerate what the Judges shall judge. In Rich. II's time, a Judgment was declared in Parliament against Tresillian—The Statute does not define beforehand, but when an offence does fall, then to judge it. Sometimes the Parliament have judged hanging and drawing, and not quartering nor embowelling, and sometimes beheading only. In Treason, the forfeiture is to the King; in Felony, to the Lord of the Manor. This case we now debate is no case enumerated in 25 Edw. III. But take that power away of declaring Treason in Parliament, and you may have all your throats cut. (He spoke low, not well to be heard.)
Sir John Otway.] No doubt nor question but an offence shall be Treason, if King, Lords, and Commons declare it so, since that Statute 25 Edw. III. This Article against Scroggs is very uncertain. Has he broken the fundamental Laws of the Nation? Wherein?. It is a hard thing for a man to fall under the displeasure of the House of Commons. No Subject is too big for them. It had been a great satisfaction for Scroggs to have acknowleged the offence here, and explained himself; and it has been frequently done here by some Lords; as the Duke of Buckingham, and Lord Arlington, who explained their actions, &c. (fn. 3) and upon satisfaction, the House has forborne to impeach. Mr Thompson of Bristol was heard at the Committee; so was Sir John Davis of Ireland. Lord Chief Justice Keeling was heard in the House, upon complaints against him, and the matter went no farther (fn. 4). I would have Scroggs sent for, to know what Answer he can make for himself. Let him have the same Justice others have had.
Sir Thomas Lee.] I am one of those who think that by that Statute the Parliament is not so bound up, that, when such enormous offences are committed, by Judgment of Parliament they may be made Treason, and no doubt of it for the safety of the Government. But now as to this particular person, in what degree will the Commons make their complaint to expect Judgment from the Lords? As the Articles are framed, you must change your Title; but whether it is prudence to dress your Articles in these terms, is the Question. It was an odd sort of practice of the Judges in the case of Sir Samuel Barnardiston, &c. to construe "maliciously, &c." but pepper and vinegar-sauce. They told the Jury, "Find you but the Fact, and we shall lay the Crime in Law." I often have taken this for a great mischief in the City Juries, where great Fines have been imposed. There can be no higher Crimes than Scroggs is accused of; but as to the word "traiterous," that he did traiterously discharge the Grand Jury, &c. Still I take before me what the proof will be; for the Court will judge according to that, and not your Title of the Impeachment. It may be, the Judges did this to aggrandize themselves. I would consider, whether to say "an universal subversion of the Laws," to that one particular action of discharging the Jury. If you expect no bigger Judgment from the Lords than the Misdemeanor, consider of it. The rest of the Judges are equally guilty in this matter; it was the intention of all the four Judges—Call it by a lower name of offence; you cannot have a higher Judgment from the Lords than you complain of. If the Parliament happen to rise before the matter be judged, the Impeachment remains upon Record, and may be proceeded in, the next Parliament. I have stated the matter, in every part, plainly, not in favour of Scroggs; that, if any thing should fall out, you may not be unprepared. Another thing may fall out; if the charge be Treason, the Bishops are not to be Judges of it, and so you may have the better effect of it. In the body of the Articles is the very Evidence, and it may be of great inconvenience to show the Lords the nature of the Crimes from the Evidence itself. If the Lords happen to say, This is but a single Act; they may make a question whether to commit him for Treason?—And whether the Lords be free to make this a declaratory Treàson? Let us take care, not to put the Lords too often to renew their Orders, as in Lord Danby's case. If you intend to print this, I suppose you intend it not a Censure by Act of Parliament. If the Charge must be as you lay it, all Acts, for the future, of the Judges, will be the same in what may follow hereafter. I would be better informed by learned men, if this should fall out, to consider what difficulties you will be upon. In Lord Strafford's case, because such Judgments should not for the future be given by the Judges, therefore the Commons proceeded by Bill of Attainder, and not by Judgment.
Sir Francis Winnington.] To the first Point, "Whether the declaratory Power of Treason be in the Parliament?" Although doubted the other day by Jones, yet if you consider the Arguments in Lord Danby's case, the House was delivered of that difficulty. Taking that Point for granted, if this Article be true, now we are come to a mature Debate, read the Articles one by one. As to the fairness of the thing, when enormous Crimes are committed, it is our duty to take care to question them.
Sir Thomas Meres.] When I heard this Article read, I did think it was an Article by itself; and now I perceive that the other Articles must explain this. But if the Treasons be in the following Articles, I would see them. It is not for the interest of the Commons to multiply Treasons; but still to consider whether this be Treason at Common Law; for when we have declared it Treason, the Judges at Westminster-Hall must judge so. In the case of Lord Clarendon's Impeachment, the Lords did object, "That our Charge was general Treason;" therefore I desire to express particular matter in this Charge. Pray be wary in that Point of too many declaratory Treasons.
Mr Finch.] What I shall say in this case shall be in discharge of my duty to my Country, and I should be sorry any man should think me an Advocate for Scroggs, for I think him not fit for his Place, nor ever was, and I think much less now. This Crime he stands accused of, in its own nature, is not capital, yet when he committed it, he knew it to be a fault, but not capital; so that I would not have Blood, for a Crime ex post facto. This being said by way of Preliminary, I shall say something to the declaratory Power in the Parliament. Suppose you had such a Power, yet no Crime can be declared Treason, but by King, Lords, and Commons; you go on a little too fast, first to declare it before you impeach him. But what I shall chiefly insist upon is, the declaratory Power in Parliament itself. What is said by Maynard is a doctrine so mischievous, that this age, or the next, may rueit. When you have once declared the Fact Treason, the Judges may judge that Fact as Treason for the future, unless it be with a Ne trahatur in exemplum—Put the case of a forcible entry, a much greater crime than a robbery on the highway; for that puts a man in fright, and takes away his Land as well as his Money. Before the Statute 25 Edw. III, there were great factions in the Kingdom, and there usually followed revenge; and as the Parliament became more on one side than the other, they were made instruments of their rage; it may be, such times may come again; and then the Judges must punish upon the like occasion. Men cannot suppose Parliaments in being, nor good Judges, and what a miserable case will it be, when upon such Judgments no remedy can be had! By the Statute 25 Edw. III, in High-Treason the Forfeiture is to the King, as well of Lands held of other Lords, as of the King—Another fort; in Petty Treasons the Forfeiture of those Crimes is to the Lord of the Fee— And because there may be many such like Treasons, the Proceedings shall be stopped, till the Parliament declare whether the Crime be Treason or Felony. The intent of that Act was, that the mean Lords should not lose their Rights and Forfeiture, and should be given to the King, and Proceedings should be stopped till the Treason was declared. I would have a Precedent showed me, when ever any offence was declared Treason in Parliament, that was not Felony before; whether ever they did declare or enact a man out of his life? By Bill you have mature deliberation; the Lords and the King consider of it; but here by a Declaration of Treason, you read it but once, and in a hasty Proceeding declare a man a Traytor, which is worse than enacting a man out of his life. I do think this man (Scroggs) is not fit for his Place, and has done Crimes fit for great punishing. Consider that all the ill Precedents have been the result of mens prejudices in odious cases. When we suffer ourselves to be transported, we may proceed well in this case, but ill for ourselves and our posterity.
The Speaker read the Declaratory Clause in 25 Edw. III.
Sir Francis Winnington.] The Gentleman who spoke last, calls me up. I did think that point of Declaratory Treason inherent in Parliament. What I say shall not relate to the Person of Scroggs, but I shall go upon the warrantable steps of our Ancestors, in what they have done to lay the foundation of Right.—His Argument (to my understanding) though the Power of declaratory Treason, &c. be agreed by the House, yet his Argument does go directly against declaratory Treason. To be better understood, I shall state the Law how it stands upon that Statute 25 Edw. III, and the Precedents. By the Statute there is no necessity that the Offence, before you declare it Treason, should be Felony before. 1 Hen. IV. Chap. 20. 1 Edw. VI. Chap. 3. 1 Mary, Chap. 1. By reason of the disorders of the Kingdom in the Barons Wars, the Parliament did reduce all Treasons to the Statute 25 Edw. III. I observe that, since that time, there should be no other Treasons but what should be adjudged and agreed in Parliament; by which I do plainly observe, that, to that time, there were other Treasons than in that Statute are enumerated; and that Statute takes them not away, but forbids the Judges to meddle with them in Judgment, As this case is, by search of Precedents, there was never, or very rarely, any Judgment in Parliament which the Judges in Westminster-Hall, or Commissioners of Oyer and Terminer, could try below; all was upon declaratory Treason—But says Finch, "By 25 Edw. III, the Parliament did not declare a Treason, unless it was Felony at Common-Law." But to deflower the Queen, and several other instances, as the bringing six-pence false money into England, was declared Treason by that Statute, and was not Felony before. In the case of Richard Weston, who delivered a Castle at Berwick, and Commines at Arles, both were judged Treason. Parliam. Roll. Numb. 5. I would know whether that was Felony at Common-Law? It was only Breach of Trust against the Government. The Offence of Tresilian and Belknap was no Felony before. But as Maynard said, "That what is committed to the destruction of the Government, deserves as much Punishment as those Treasons in the Statute;" but to subvert the Government, that is a Parliament Treason. But 11 Rich. II, there was a distinction of Treasons, which were not by that Statute. For that Question put to the Judges (Tresilian and Belknap) belonged to the Parliament, and not to them, to decide— And they are not made but declared Treasons at Common-Law, which were not Felonies before. The main objection is agreed, as to the declaratory Power of Treason in Parliament. But it is urged by Finch, "If you come and call this Treason, the Judges will call it Treason; and will you give them that Power?" But the declaratory Power is to be argued for every special Case; and if so, it is not an Argument to support declaratory Power in the Judges, but to prevent it. In the case of Empson and Dudley, the Judges could not proceed upon those Indictments 1 Hen VIII. They came to Parliament, and the History says, they were attainted in Parliament; Lord Herbert, in his History, says, "For adhering to the King's Enemies." But the Journal of the Lords happened to be inspected in King James's time, when the Lords intended to give a Judgment, but they found it only Misdemeanor—The Attorney-General brought in the Indictment of Empson and Dudley, and the Lords took notice of it, and called it "Proditoriè," though it was but a bare encroachment. In the forty Articles against Sir John Finch, and the Articles against Justice Berkeley, they were indicted of Treason, in the General Articles, as in this case; they refused a Lawyer to plead before them in the case of Ship-money, and they refused a Jury to enquire into the Misdemeanor of the spiritual Courts; and all the Articles said "Proditoriè:" For here is a thing we must consider: The Chancellor is Keeper of the King's Conscience, and the Judges of the King's Oath, to do equal Justice, secundum Legem Terræ, and when they impose Arbitrary Power, it is not as in the case of Trespass or Felony, but that is to subvert the Government. The Case of Justice Thorpe, 23 Edw. I. Sacramentum Domini Regis et suum maliciose, falso, et rebelliter falsificavit. So we must judge things according to reason. This man was supposed to be learned and virtuous. He has the keeping of the King's Oath, and he has betrayed it; Thorpe did so, and was hanged. I am not now to make a Declamation against Scroggs, but for my Country. In the Mirror of Justice, Fo. 135. three of a Jury acquitted a man, and nine found him guilty; a Judge put out three, and put in three who found it; and the man was hanged, and the Judge was hanged for it. If not checked in the career, a man will tell us when we shall have Justice, and when we shall have none; and he certainly deserves the censure of Treason. "Great Officers have much to lose, and it is an awe upon them," Finch said; but I am more afraid of an arbitrary Judge, than of the Lords and five hundred Commons Judgment. A man will be content to be hanged when the. Parliament says he is naught. (The House laughed.) He would be ashamed to live; he would have little comfort to live, especially in his own Country, where the Parliament shall think him a Traytor. In Husband's Collections of the Transactions of 1641, &c. the Attorney-General exhibits Articles of Treason against the five Members, for doing their duty in Parliament, viz. "That they had endeavoured to alienate the affections of the People against the King." It is not said, "To alienate the affections of the King from the People, when they cannot have Justice"—Those who were for Ship-money, were for that to be Treason, "To alienate the affections of the People, &c." "Subverting the fundamental Laws" was as general an Article then, as this is now. Now the Question is, if any thing be unanswered—But it may be said, "But will you let the Judges declare it Treason in their Judgments, when the Parliament has declared it Treason?" Certainly there is no danger at all in that. In Lord Strafford's Case, by the Ne trahatur in exemplum, people thought it was never to be done again—The Judges may take the Indictment in a doubtful Treason, but must bring it to the Parliament—All the mischief is a Bill of Attainder, and a Ne trahatur, &c. If great offences as these escape without such Judgment, how shall we come at other great Men that shall offend, &c.? If this comes to the Lords, in their Court, to judge, they will give a Judgment suitable to the Fact; our calling it Treason will not make it so—An Englishman ought to be content with that Judgment—But the Question is, Whether the Lords will commit Scroggs upon this Impeachment? I had rather such a man was tied up, than let loose. The Commitment of Lord Danby was by solemn Entry in the Lords Journal; and why should we suppose a difference with the Lords about his Commitment? When a Rule is settled in their Journal, when the Lords shall, upon examining all due circumstances, find the Charge not to be Treason, we must be content. The Judges, by thus discharging Juries, take upon them a Legislative Authority, and power to muzzle men, and sew up their mouths against the Laws; and shall not the Parliament deal with them? The Juries were discharged before they made their Presentments. Shall they tell us we shall have no Law? I would know, whether all the former offences men have been judged upon in Parliament do come up to this? Having said this of the Power in Parliament of declaratory Treason, the Point is well settled, not to be shaken. Less Crimes than these were formerly called Treason. Let us not shrink nor be afraid in this; we have Precedents on our sides. I have no prejudice against the Gentleman, but pray let the Articles pass.
Serjeant Maynard.] What you have been told by a Gentleman of 11 Rich. II, is very particular, and very observable. "The Commons pray, that those who surrendered the Castles, &c. may be put to answer to the Articles thereupon." Richard Weston delivered the Castle at Berwiok to the King's Enemies, when he had Victual enough and Munition to have held it out. He had Judgment in Parliament, to be hanged and drawn for delivering that Castle, but embowelling was no part of the Sentence. Commines, for delivering the Castle at Arles; without leave of the King, he went away from keeping the Castle: Ogle defended the place—He was judged to death because he left the Castle. One was beheaded, the other was drawn and hanged, and yet the Charge is not "Proditoriè," but by his default they left the Castles, and were to answer it in Parliament; and they were punished as by award of the Seignors and Barons, and had Judgment of Treason; so that here is Judgment of Treason in one case of Felony. In the other, 25 Edw. III, we had much from the Civil Law of Crimen læsæ majestatis, et Crimen perduellionis; the one was an ordinary Judgment, the other in Campo Martio, to be judged by Senate. So that when a particular Case comes before the Parliament, then it is fit to be judged. But in our time, when men come to destroy Religion and the whole Law!—I only speak this now, that we may not be deprived of this Judgment upon a greater occasion.
Mr Finch.] I would know, Whether the delivery of a Castle was not Felony before that Judgment against Weston, &c.? It must have been tryed by the Lord Constable, or Lord Marshal, or in Parliament. I would know, Whether the Lords can alter the Judgment of High-Treason into another Punishment? As for Rich. II, I would not have Precedents urged of that unquiet time. If the Offence was Treason before at CommonLaw, it is not necessary to be Felony before—The Indictment of Empson and Dudley was not "Proditoriè," but by an additional Article in Parliament it was, "For the adhering to the King's Enemies," and that was Treason. Lord Keeper Finch's Crimes were not greater than Lord Strafford's, and yet an Act of Parliament was made for that—I think it a hard case to enact a man out of his Life. If every erroneous Judgment given by a Chancellor should make a Capital Offence, and every erroneous Rule in the other Courts of Westminster (that never was, nor ever ought to be High-Treason,) they sit there at the peril of their ignorance.
Mr Powle.] It is resolved, on all hands, that the declaratory Power of Treason remains in Parliament; but it is objected, "That it was never declared Treason but what was Felony at Common-Law." The word "Felony" there imports no more than a great and enormous Crime. In a Judgment of Maim, it is expressed felonicè mayemavit. A great and enormous Crime is Felony. But I shall speak to what Finch objected, "That it must be Felony before it can be judged Treason in Parliament." The case of Thorpe's Indictment was upon the Statute 25 Edw. III. I shall not much rely upon that, nor upon that Precedent of Weston and Commines. I take it, to deliver up the King's Castles or Fortresses, whilst they are tenable, is aiding and adhering to the King's Enemies. In that of 11 Rich. II, four or five Judges were impeached for signing an extrajudicial Opinion against the Parliament. No man could say that was Felony. As for the objection against "the unquiet times of Rich. II, and Precedents not to be taken, &c." we must take Precedents where we can have them, and I take them always to be unfortunate times when there is occasion of such Precedents. I take all those Precedents of 11 Rich. II. to be legal Precedents, and not to be excepted against. In 17 or 18 Rich. II, Sir Thomas Talbot conspired against the Life of the King's two Uncles, and that was not Felony, and yet in that Parliament it was adjudged Treason, and not Felony. Sir Thomas Hacksy, a Priest, proffered to the Commons a restraint of the excess of the King's House; the King took it as derogatory, &c. judged—The case of the Earl of Northumberland, 5 Hen. IV. He had given Liveries, and had great Retainers in the North; the Parliament judged it only Trespass, and not Treason; it came to a Dispute whether it was Treason or Felony, and it was judged Trespass. The several Judgments against Empson and Dudley, &c. —The oppressive Proceedings of the Court of Wards— and the word "Proditorie" is so—and the Lords did judge it - But if we may believe Lord Herbert, in his History of Henry VIII, the Charge of Empson and Dudley was brought into Parliament by Bill against them, and it was rejected, as not being well formed, but when mended it never passed. The Bill is extant of their restoration in blood, and it makes no mention of their being judged in Parliament, but they were attainted by course of Common-Law, at Guild-hall in London, and at Northampton, Dudley. As to the business now before you, I never heard but that the subverting the fundamental Laws was "Proditorie" in an Impeachment. This is spoken of Scroggs as a small offence, and a single Act, and therefore a hard Case; but we are beholden to the shortness of his Reign in the King's-Bench, for no more. The offence of Tresilian was but a single Act, and Ship-money but a single Act, and Riots, as Maynard said. But to destroy the whole Government—The discharge of the Grand Jury, as if with intention to save all the Papists from Conviction, is not this, for Judges to make Laws, as in the Case of forbidding Printing, &c? And a general Warrant to seize Persons and Goods by Messengers, is not this a subversion of the Government? I believe it was done with that intent. If Scroggs be not a good Lawyer, he ought to be, and must answer for his fault of ignorance of the Law, as well as the rest of his Charge. You cannot in this go less than the word "traiterous;" else it is casting dirt upon former Impeachments.
Mr Finch.] I am no Advocate for Scroggs, much less for his Crimes. I only said "We ought to be cautious how we construe Treason in Parliament." If every illegal act be Treason, we are in an ill case. As for the Case cited of the Earl of Northumberland, it was plain Treason, and the Lords interposed for mercy to the King. As for Hacksy's Case, it was repealed; and for Telbot's Case, that was declared Treason by the Lords alone, if you will allow that for a Precedent.
[Resolved, Nem. con. That Lord Chief Justice Scroggs be impeached upon all the Articles, and that Lord Cavendish do carry up the said Articles to the Lords.]
Thursday, January 6.
[Colonel Birch reports the following Message from the Lords, on the Informations relating to the Popish Plot in Ireland:]
"Resolved, by the Lords Spiritual and Temporal, &c. That they do declare, that they are fully satisfied that there now is, and for divers years last past there hath been, a horrid and treasonable Plot and Conspiracy, contrived and carried on by those of the Popish Religion in Ireland, for massacring the English, and subverting the Protestant Religion, and the ancient established Government of that Kingdom;" [to which their Lordships desire the concurrence of this House.]
Sir William Jones.] Here are two Witnesses against a Lord who sits in the King's Council (Anglesea.) Dr Oates's Evidence is confirmed, and that passage of the "Black Bills out of Spain" explained. Peace was made with France in 1678; we Country Gentlemen understood not the reason. At that time the King of France was to come over into Ireland, according to Dr Oates's Testimony— Peace was to be made with the Emperor, if a Popish Successor—Had he been a Protestant, you had not heard of the Plot, nor had you heard of a Plot formerly in Ireland, nor a Massacre, had there not been a Popish Queen. But in what condition should we have been, if the French had landed, and the Papists risen here? For satisfaction of the Nation, pray let this Information be printed, that the Nation may consider to defend themselves; if we be so secure as not to do it! I would have Lord Tyrone impeached to-morrow, and the rather, should this Lord get out of the Gate-house, and go into Ireland; you see how he has been favoured there; and it is strange that a Great Lord (Anglesea) should be about the King, in Parliament and in Council, when you have two Witnesses against him. As I would agree with the Lords in their Vote as to the Plot and Massacre in Ireland; so I would move the Lords to agree with you, "That all this is occasioned from the hopes of the Papists from a Popish Successor."
Sir Henry Capel.] I close with this Motion. In the Long Parliament we heard a great noise of 1641, if any Enquiries were made into Miscarriages. I have reason to know 1641: (His father, Lord Capel, suffered.) A Parliament met in 1640, and the Massacre was in 41, countenanced by Papists in the Court; and now you have 41 out and explained. It is far from me to justify the Miscarriages of that time to the King's Death; there were provocations on each side; hot things were done then, and those now about the King would be very glad we should do hot things to be sent home, or to set us upon little things to divert us from doing greater; and I hope we shall avoid heats amongst ourselves to discredit us. I am glad to find that it is not the persons, but things, that are of weight in this House. But I stand amazed that a Privy Counsellor holds the Seal, and is still a Privy Counsellor, who has such Informations against him. I hope, (as it has been moved) you will take that matter into consideration, and that you will consider of an Impeachment against Lord Tyrone too. I will not mention the Plot in England; that is smiled at by some still, but it is plain there was a Plot in Ireland, and in this Information, here is a Priest and a Peer, a Privy Counsellor, a Peer, and the Duke (with that expression) fully consenting. I am in amaze at this! I move that you will pass a Vote, "That you do agree with the Lords in adding the words, "the hopes of a Popish Successor to be the Grounds of all this."
Serjeant Maynard.] Shall we be led like an Ox to the Slaughter, and a Fool to the Stocks, and not apprehend our danger? All the discoveries of the Plot in England and Ireland have been from the hand of God, from persons that were of that Conspiracy, and the same persons in the same way were used in Ireland as in England. To intimidate the Witnesses, one was murdered, another assassinated, I know not how; we see where they go for assistance, into France; and Oates tells us, in their Army, when they had the Victory over the Emperor's, what Joy there was. Can we believe but they who have so embrued their hands formerly in Blood, have still the same design? It is a strange thing for the Duke to think that the coming in of the French would establish him. I fear that there is an infatuation upon us. God has discovered this Conspiracy, and we shut our Eyes, and the blind lead the blind, and both will fall into the Ditch. I agree with what has been moved, to agree with the Lords with that Addition.
Mr Hampden.] You have had many Motions made from this Bar. The Question is, how far we shall concur with the Lords in their Vote? The Lords are well satisfied that there is a Plot both in England and Ireland, and I am glad they are; and a great many Clergy, who, out of the Excess of Charity, could not believe the Popish Plot, I hope will now the learned Prelates do so. Concur with the Temporal Lords, and, as Dr Burnet said, in his Sermon (fn. 5), "We may prosecute this Plot with that decency and humanity it requires." You see what it is; all has arisen from the hopes and encouragement of a Person I am unwilling to name (the Duke.) Dr Oates's Information is all of a piece. You may remember a Letter from Richard Talbot to Coleman in 1678: It was wondered it had no answer in four days; at last the mystery came out Talbot was in Cheshire all that time, and Coleman understood all those mysteries. The Blank which the Lords have left in their Vote, to be filled up by the Commons, will make it entire. As for what may be added about Lord Tyrone, you may try him here. Now the Question is, Whether you will make England and Ireland all of a piece in the same Vote? And, if you please, you may add, "That the Duke's being a Papist, and the hopes of his coming such to the Crown, has been the occasion of the Plot."
Sir Francis Winnington.] I shall only put you in mind of the words of a dying man in Ireland. The Priest told him, "If he confessed any thing, he was damned." The Plot is now spread into Great Britain. I was attending in Council, when Dr Oates told them, "That the Plot was laid in England, Scotland, and Ireland, &c." and all his Information has been very well confirmed since, and some Lords then present, no friends to Magna Charta, believed it, and held up their hands at it. The Lives of men are precious, and Religion is dear to them; and if there be such Counsellors, who would destroy the King and the Government, and advise the King to break his word at Breda, they will be French Slaves rather than English Subjects. I remember the War with the Dutch, and the taking of the Smyrna Fleet. Lord Clifford then had good friends in this House, and was heard to say, "If we take the Smyrna Fleet, and God stand neutral, he hoped to establish the Catholic Cause in England." Then came the shutting up the Exchequer, and the Declaration for Liberty of Conscience, and God did stand neuter—That gave occasion to the Test against Popery; and what he died, you have heard. Though we believe the Plot, and all is proved as plain as the Sun, yet we are thus supine. I am, as old Mordecai said, persuaded, that deliverance will come, notwithstanding the hardships that have been put upon the Witnesses; nay, in Parliament-time. For God's sake, let us attend the House, that the fault may not be ours. When once the Power of France shall get Ireland or Flanders (which is now almost lost) then it will be too late for the King to join with his People. Let us bring the case to Ireland, in this Message. If the Lords had sooner been of this opinion, it may be, we had not lost our Bill. Let us see whether the Lords will come up to this Message preparatory to that Bill; at least let us endeavour to bring the Lords to be of opinion, that they are in as great danger as we, and then I hope the Lords will come up to us.
Sir Thomas Lee.] The House needs no persuasion to be of the Lords opinion, both as to the Plot in England and Ireland. We are all of a mind, we need not lose time in Debate of that; but your Debate is to bring the Lords to your mind, and then the plainer you speak, the better. You may therefore put in "Exclusion of the Duke from the Succession, &c."
Sir Thomas Meres.] As you put it, it seems those Additions are a condition; it is plain we shall agree with the Lords. Make your Additions to the Question, but not Conditions.
Lord Russel.] At the end of the Lords Vote, I would add, "And that the Duke's being a Papist, and the expectation of his coming such to the Crown, has been the greatest encouragement to the Plot."
Colonel Birch.] You have been moved to desire a Conference with the Lords, and there to deliver your Additions, with your Reasons. I see a great deal of difference betwixt Reasons at a Conference upon Bills, and this of Additions to their Vote. In the last Long Parliament, the House came to a Resolution upon Lord Holles's case in the King's-Bench, formerly, about Freedom of Speech in Parliament (fn. 6). To my best remembrance, they went to the Lords by Conference, and gave the Reasons of the House of Commons for that Resolve. By that means the Reasons will be entered in the Lords Journal to Posterity.
Mr Hampden.] It has been very frequent anciently, that things of right have been delivered to the Lords at a Conference. In 3 Charles I, Impeachments were delivered at a Conference, of which old Parliament-men can give you a better account. Bring it to a Dispute, and reason it afterwards. It is no Breach of Correspondence with the Lords to give Reasons at a Conference for our Addition to the Lords Vote. Ours may persuade and induce the Lords to agree, and I think it not unparliamentary at all.
Sir John Trevor.] There are Precedents of Impeachments of Lord Bacon, Mitchell, and Mompesson, delivered at a Conference; but the methods of Proceedings for these twenty years have been, that if you return the Lords their Message with Additions made, you send it up to the Lords; but if you do not agree, then you desire a Conference, and give your Reasons.
Sir Thomas Meres.] The Impeachment of Lord Mordaunt was delivered at a Conference; and no doubt but you may deliver Reasons there. But I rise for this: If you agree with the Lords, you add only the words, "the Commons," to the Paper; but the Addition you intend is one entire Resolution, and must be delivered in a Paper apart by itself. This I am sure, that Resolutions of one House and the other have been amended, and Intimations and Reasons have been given for the Additions. I can produce four or five Instances.
Mr Boscawen.] This will be a strange kind of Conference, and nothing said at it. When you go to Conference with the Lords, it is to have a good understanding with one another, and Reasons to agree. The Lords, when they sent you down the first Examination, delivered it at a Conference; to know the nature and method of the thing, and the best way to give Reasons to induce their concurrence.
Sir Christopher Musgrave.] The Lords have sent you down barely their Vote, without Reasons. No question but you may deliver your Concurrence and Addition at a Conference; but I would fain hear if ever there was one instance that you are obliged to make Amendments. It is the liberty of each House to make what Amendment they will. If the Lords do not agree, then it is Parliamentary, at a Conference, to give your Reasons.
The Commons added to the Lords Vote, "That the Duke of York's being a Papist, and the expectation of his coming to the Crown, hath given the greatest countenance and encouragement thereto, as well as to the horrid Popish Plot in this Kingdom of England."
Mr Harbord.] Lord Macguire, who was one of the great promoters of the Massacre in Ireland, was brought over hither, tryed, and executed at Tyburn, and was tryed by a Common Jury.
Sir William Jones.] There is no question, but a Peer of Ireland is but a Commoner in England, and no question but he may be proceeded against by Impeachment as well as by Common Tryal; and I shall offer my reasons why to proceed against Lord Tyrone by Impeachment. We are not yet so hopeful of our Judges as we may be, and I would have this Tryal in as solemn a manner as may be; you cannot mistrust your Managers, nor a Common Jury, but the accusation of Lord Tyrone arising in Parliament, it is properest he be tryed in Parliament.
Mr Harbord.] I should be sorry that Tyrone should be tryed by the Lords: I would have the most known way rather, by a Common Jury. I suppose this Gentleman is a Commoner of England, and I am verily persuaded, a Jury will try him truly. I know not how this matter is settled of the Tryal of him as a Commoner. I think he may as well be tryed by a Jury of Middlesex; I dare trust them as well as somebody.
It was answered by another,] That Lord Chief Justice Scroggs was impeached by the Commons, and, though a Commoner, yet to be tryed by the Lords.
Mr Boscawen.] No Commoner can be tryed by the Lords but by Impeachment of the Commons, and so there is no danger. You would not send him home to be tryed by an Irish Jury of Peers. There is no fear but, in the good inclination the Lords are in, upon good Evidence they will find him guilty.
Mr Harbord.] I would not have that doctrine pass for current "That he will have a safe Tryal by the Lords." In the Long Parliament we sat it out sometimes to a man, and so I fear Impeachments may not be so safe always in Parliaments.
Sir John Trevor.] "A Cause that concerns a whole Kingdom, the Lives and Fortunes of all Ireland"—33 H. VIII: The King appoints the Judges, though the Sheriffs may return good Juries, and give encouragement to those poor People that are come over to prosecute—That they may probably have good effect of their Prosecution, I would impeach him.
Mr Hampden.] If you intend to charge Lord Tyrone, it is fit you desire the Lords that he may be in safe Custody, and the Lords are obliged to commit him. My Lord Privy Seal said, at a Conference, "The Lords would commit upon special matter charged," but was disowned in it by three or four Lords, viz. "That the Lords had made a special Order to commit upon special matter charged by the Commons." Although Tyrone be committed to the Gate-house, yet it is not so safe a Commitment as upon an Impeachment.
Sir Thomas Lee.] I concur to carry up the Impeachment with special matter. In some cases, you have carried up special matter, and in some not. I am of opinion that you should require Imprisonment of the Lords, for you cannot take notice that he is in the Gate-house. If you send this Impeachment up without special matter, you have a good opportunity for the Lords to agree to it, and settle that point.
Sir Francis Winnington.] In carrying up the Impeachments of the five Lords, I do not remember you sent up special matter. In Lord Strafford's case in print, and so in Sir George Ratcliffe's case, who was committed to the Gate-house, and Lord Strafford to the Black-Rod, yet it was prayed by the Commons that they might be in safe custody. You cannot take notice of the Lords Commitments.
Serjeant Maynard.] To be the more regular, when you desire the Lords to commit him, you may say we have Articles of High-Treason against him.
Mr Hampden.] Two of the Witnesses are in Ireland. It is worthy your consideration to have those safely sent for that are to give Evidence.
Mr Boscawen.] I would have the Clerks of the Council asked, what Depositions have been taken out of Ireland, and how those may be sent for?
Colonel Birch.] I speak to inform you, that though some of the Witnesses are in Ireland, yet three are in England that speak point-blank to this Conspiracy wherein this Lord is concerned.
Sir William Jones.] Appoint the Committee to search into Proofs, and they will acquaint you how the Proofs stand.
[Resolved, Nem. con. That Richard Poore, Esq; Earl of Tyrone in the Kingdom of Ireland, be impeached of High-Treason.]