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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Tuesday, November 23.
Debate on the Proclamation against Petitioning, &c.
Sir William Jones.] We must come to some Conclusion; here lies such a weight upon us, that we must remove it. We have "Abhorrers of Petitioning for sitting of the Parliament," and here is a Proclamation against Petitioning, &c. and a Declaration of the Law upon it. I am afraid, that as it has been proclaimed in every Markettown in England, it has so possessed the people, that it will be a hard matter to set them right in their minds. And that you might see the Authors of that Proclamation, you have appointed a Committee for that purpose, and I move that you would add some more Members to it, that they may the better go on to know by whose Advice this Law comes to be declared to the people by this Proclamation.
Mr Trenchard.] Whether this Proclamation was set forth under the Great Seal, before the Attorney-General received it, or whether the Attorney drew it, I would have no farther information of this. I would only enquire who advised it, to mislead the Nation by such a Proclamation.
Colonel Birch.] You send for subscribers to abhorring Petitions out of the Country, and punish them, whereas the contrivers of the Proclamation, those deceivers of the people, escape all this while. You ought to give this business the honour of a hearing at the Bar. Send for the Attorney, and charge him with it, for through his hands Proclamations pass. Let him give you an account who did it, if he did not; a thing by which all the people of England have been deceived! I would therefore hear it at the Bar.
Sir Thomas Lee.] I am for hearing it at the Bar. It is moved that Mr Attorney be sent for. I desire we may not run into difficulties. He is an assistant at the Lords House, and what Authority have you to summon him? But you may send for him, to desire him that you may be informed how this Proclamation came to his hand.
The Speaker.] I think Mr Attorney-General has no Writ of Summons to attend at the Lords House.
Sir William Jones.] He is an assistant at the Lords House, and may be summoned. You made no scruple to send for my Lord Chief Justice North, &c. But you may summon him; and if he have a Writ, I believe he will make no advantage of that. It would not look well in him, sure. I would have him summoned to attend.
Mr Hampden.] I suppose you will not direct him to attend by any Order, but you may please to direct some of your Members to attend him, to desire him from the House to be here; and that is no Summons.
Sir Robert Carr.] If you please to send to the AttorneyGeneral, he will (I believe) give you an account how this matter stands. The same Order was sent to your Members from the Lords to inform about putting out Justices of the Peace, and so the Lords cannot take it ill to use him as they have used your Members.
Ordered, That Mr Attorney-General be desired to attend this House to-morrow morning, to give the House an account of the Proclamation, styled, "A Proclamation against tumultuous Petitioning."
Lord Russel.] There are some Persons at the Door, who can give you an account of the illegal Proceedings of my Lord Chief Justice Scroggs, in discharging the Grand Jury of Middlesex.
Whereupon several of the Grand Jury were called in, and some other Persons, who gave an account of the carriage of that matter, as is at large recited in the Articles against the Lord Chief Justice Scroggs.
Sir William Jones.] The matter now before you is of great concernment to the Government, and all our safeties, and it is so complicated, that it is hard to dispose the several parts into order. Still in this, as in other things, there is something of the "Proclamation against Petitioning," to deceive the Country, and this is done in the greatest Court of Law. The Proclamation is tendered, so that I do not wonder that the Country has been deceived, if the Judges are deceived, or brought to be so. They cannot but know that a Proclamation does not create or change the Law, but only requires the Magistrate to do his Duty according to Law. But that (which is of the highest concern) does not only frustrate all the Laws made, but what shall be made. If the Bill which has been rejected in the Lords House, that this House set their hearts upon, had been a Law, it would signify nothing, if this way be taken to discharge Juries. If a Grand Jury be discharged whilst Indictments are depending, (under favour) there can be no Proceedings of Justice. A great man cannot want so much intelligence, that a Presentment is against him, to observe Witnesses, and one of the Jury his friend, to know what opinion the Jury are like to be of; and if the Judges discharge that Jury before they have brought in their Presentments, a man can never be presented, or what Law can take place? You have been told (by Sir William Roberts) that the Grand Jury of Middlesex has never been discharged, till the last day of the Term, for these fourteen years that he has served; and I have attended the King's-Bench Bar these twenty years, and have observed that not only in Trinity Term, but the rest of the Terms, the Grand Jury has never been discharged till the last day of the Term, and the latter end of that day. The Grand Jury of Middlesex is not like that of other Counties; there is occasioned by the Term a great conflux of people, and therefore it has been the wisdom of the Law to arm the Judges with a Jury to attend them, that before the end of the Term, Offenders should not escape prosecution. Observe the method: The Grand Jury come to present a Petition; they had presented many Bills, and one was ready against Popish Recusants, and it was objected, "That, by that Bill, it was not their intention to present the Dissenters;" and so intended to amend the Bill; but this Bill was attended by some Lords and Persons of Honour, and it was that which gave the alarm. The Jury was blamed by the Chief Justice, and told, "That they meddled with matters which concerned them not," (when they tendered the Petition for sitting of the Parliament) "that the Bench were too good men to go of their errands." But I observe, that the Petition of Abhorring, &c. for Essex and Kent, the Judges brought very willingly to the King. But these are so good Judges, they will not go of the Jury's errands. It is not for the Dignity of a Judge to present a Petition; but they disliked the Petition, and they put contempt and scorn upon the Jury, and one of them a Member of Parliament (Sir John Hartop.) You have been told, "That the Grand Jury are never ready with their Presentments till the last day of the Term;" they were ready upon the File, and because they came with a Petition, and were not ready with the Presentments, though the Bills might be drawn time enough, judge whether this was a reasonable cause to discharge the Jury. I do not deny that the Bench does often discharge the Grand Jury before the last day of Term, but it is at their own desire, when they have no farther expectation of business; but was it ever known, when they have had matters of moment before them, and Bills upon the File, that they have been discharged; and when the Clerk gave the Court notice that they had Bills upon the File, to tell the Clerk, "He is not to give Rules to the Court?" Whatever you do with Persons, pray take Things into consideration; for if subversion of the Law be a great offence, what a greater is it when a matter of such moment as Popery, &c. is depending, to discharge them before their time! Any Law made, or that can be made, will be of no moment. Consider that right be done us in this matter; without it we can have no security.
Sir Henry Capel.] This matter is of the greatest moment. We are under the security of Parliaments for redressing our Grievances, and another, out of Parliament, that the Law have it's course, that the Judges obstruct not the Law. I observe that these Judges are grown omnipotent. They have done those things which they should have left undone. This is very fine, that Judges, who must be upon the Bench, must be dropped at Whitehall, before they come to Westminster-Hall; and I know what Law we must have, if they take instructions from those that advised the "Proclamation against Petitioning." See the consequence: Is it not as much as to say, that the Judges know all the Grievances of the Country, and the Judges must redress them, and we sit here but for form-sake? All Misdemeanors, and what is amiss in the Nation, the Judges must rectify. This is such a presumption, that they must answer it. If this be done in Westminster-Hall, how dare Grand Juries in the Country represent any thing that is amiss? Suppose there should be an Indictment of murdering a man's father or brother, &c. and the Judges take upon them to discharge the Jury; this stops all Justice, and the consequence will be, men will murder us, and we kill them again. I move, therefore, that you will proceed to punish the Offender in this great matter, and remedy the miscarriage for the time to come.
Sir Francis Winnington.] If this be not represented, all your Laws will signify nothing. The Judges are but the great Trustees betwixt the King and his People. In short, I will speak only to the Question. In former times, I cannot but remember that the Judges had one Rule of Justice to go by, and another of Policy; it was then thought convenient and politic; but when Judges once undertake that, there is an end of all Law. Nulli negebimus Justitiam, and they take an Oath to do Justice. If they have not read that Text, they are not fit to be Judges; if they have, they are fit to be hanged. When Judges, against plain fundamental Rules of Law, shall thus deport themselves—For my part, when I heard of it, I made this reflection: I put my hand upon my heart, and did never think to see a Parliament as long as these men were Judges. Was ever such a thing done in England? I will present you but with a few words. I will suppose it in a quiet time of Government, no Grievances, and no Popish Plot. Should a Grand Jury present, &c. and shall the Judges say, they shall not present? And when the Clerk of the Court, upon their discharge, said, "Hold, they have more Presentments upon the File," the Chief Justice replied, "Will you give a Rule to the Court?" If we were in quiet times, would not this be a monstrous Grievance? Shall we have Law when they please to let us, and when they do not please, shall we have none? Do as you have done already in this Parliament; make a Vote upon them. If you do not deeply resent this, all your Laws will signify nothing to Posterity. Propose a Vote, of what nature the Offence is, and see who are the Offenders against it; for all is at stake, if men take upon them to proceed so arbitrarily. After you have formed a Question, and a Vote, then you go into a method how to enquire and punish the Offenders. I am afraid to name the Offence, lest I should do it too little. I have heard that the Jury has sometimes petitioned on a Saturday to be discharged, that they might go home, and the Judges have answered, "You must attend; we are but dead Letters without Juries." But here is an arbitrary Proceeding which I know no Precedent of. I know not but if Mr Arnold's (fn. 1) throat had been cut, it might, at this rate, have slept from enquiry. You see, from the Lords House, our Bill is rejected; they have a prospect of a Popish Successor; and if they will do such things now, what will they do if we have a Popish Successor; when we have Judges, and shall not now have Law to protect us; when they are so servile as to violate Laws for self ends? I will not define the Offence, but I think these proceedings do subvert the fundamental Laws, and so I would go to the utmost severity of Judgment. I shall therefore propose the Question thus, "That the discharging the Grand Jury was illegal, and tended to the subversion of the Law and bringing in of Popery."
Mr Trenchard.] The first violation of Magna Charta was from the two Chief Justices Tresillian and Belknap; and these Judges have now taken upon them to subvert the Rights and Privileges of the Subject, and have taken upon them to discharge Juries, &c. when they petition for sitting of the Parliament, and suggested that they had received instructions to do so—Therefore I move as before.
Colonel Titus.] If this Plot goes not on, it has the worst luck that ever Plot had. Would the Parliament enquire into the actions of a Privy-Counsellor, they are checked by a Prorogation, and then they advise to dissolve the Parliament. We are told by the Proclamation, "That petitioning for the sitting of the Parliament is against Law." And would a Jury enquire after Popish Recusants, before they had made their Presentments they are sent home; and the Justices do all they can to prevent the prosecution of the Plot. Now we see why some Justices are put in, and others put out. These Judges are persons from whom we expect our Antidote, and from these comes our Poison. But I would say something in their commendation: I think them very grateful in hindering the Presentment of Persons that put them into their Places—Suppose no man will pursue a Thief, what signify all your Laws against Robbery? I would be as favourable and good-natured as possible, but it must be to such as are so to me, not to such as would destroy my Wife, my Children, my Religion and Property. As long as Judges hold their Places durante bene placito, they will do what will please, and there is an end of your Justice. Therefore I humbly move as before. Express the Crime in as significant terms as you can, and the most significant will hardly express it.
Mr Sacheverell.] My opinion is to make this Question general, for he that cannot preserve his Right in our Laws and Liberties cannot preserve his Religion. In Scotland they have what Laws their Governors please to impose upon them; let us take care that our condition be not brought to that. I would gladly know what way there is to bring a great Criminal to punishment but in Parliament, (and we have little hopes there, by what I have seen,) if ever you admit Judges to let Juries, or not, enquire into Offences as they please. I think I can remember a Precedent, when the Judges took upon them to violate the Laws, and so did violate the King's Oath and their own, and were hanged for their pains; and I shall make no great scruple to do it again, when they take the Legislative Power out of your hands. I would talk with those Gentlemen. If the Lords will do you justice in any case (and I will believe they will, till I see the contrary,) surely it will be in this. If the Judges take upon them to make Laws, and declare that riots are no breach of the Peace, for the service of the King (as they have done)—I would therefore put the Question at large, "As illegal, and arbitrary, and a violation of their Oaths, and breach of their Trusts." And when a thorough examination of the matter has been before a Committee, I hope other Gentlemen will go as high as I.
Mr Love.] What I shall tell the House, I hope, will induce them to enlarge the Question, with respect to another Judge upon the Bench (fn. 2). His name I shall leave to one in the Lobby to tell you. In his Charge at Kingston Affizes, he made reflections upon the late times. He spoke against the Act of Indemnity, "That the people were abused with fears, and that nothing now would serve their turn but a Parliament; but that he knows no Representative of the people but the King, and, in faith, the King has more wisdom than to trust those people any more, who have lately given such Testimony of their wisdom in public affairs the last Parliament." The person who can inform you of this was afraid to come without summons, lest he should be undone, being a poor man. (The words were testified at the Bar by Richard Mayo, a Student in Oxford, and others.)
Colonel Birch.] I remember, about forty years ago, about the year 1636, or 38, that some things a Lord had done were afterwards questioned. Says he, "But who the Devil could have thought of a Parliament?" I am so weak as to think that nothing of this had been done if they had had expectation of a Parliament. I would have some more of these Witnesses sent for.
Mr Powle.] I shall acquaint you with something farther in relation to the Judges. Printing I take now to be free; after the Dissolution of the last Parliament, the Act for regulating the Press expired, and the old Law remained. This was referred to the Judges to consider, and they did agree, "That there was no remedy against the Liberty of the Press, without a new Law." A few days after, some of the Judges were removed, and the rest were of another opinion, and an extrajudicial Judgment passed, by which Pamphlets were suppressed. There are two Reasons for calling Parliaments; one for raising of Money, the other for making Laws, as the Legislative Power, upon any new emergencies. But if Judges can be found, to make new Laws, by their interpretation of old ones, and if Treasurers can be found, to make such retrenchments in the King's Family, you will never have a Parliament. By this, and turning out Justices of the Peace, you may see how necessary it is that the Judges have their Places quamdiu se bene gesserint.
Resolved, Nemine contradicente, That the discharging of a Grand Jury, by any Judge, before the end of the Term, Assizes, or Sessions, whilst Matters are under their consideration, and not presented, is arbitrary, illegal, destructive to public Justice, a manifest Violation of his Oath, and is a means to subvert the fundamental Laws of this Kingdom.
[And a Committee was appointed to examine the Proceedings of the Judges in Westminister-Hall, and to report the same, with their opinions therein, to the House.]
Wednesday, November 24.
[Debate on the Attorney-General's being called in.]
Mr Sacheverell.] I conceive it regular, and according to your usual method of Proceedings, when you call the Attorney-General in, to ask him Questions that you have first agreed upon. I move that you will ask him, whether he drew the Proclamation against Petitioning, &c. and from whom he had the Warrant? If he did not draw it, that he declare to you who did?
Mr Garroway.] You send not for Mr Attorney as a Criminal, or Delinquent. Therefore resolve how you will receive him.
Ordered, That Mr Attorney-General do stand within the Bar, the Mace standing by him without the Bar.
Sir William Jones.] I cannot blame Gentlemen that are mistaken, because they do not understand the course of things. The Attorney-General sets not his hand to the Proclamation. Pray ask him, whether the Proclamation was drawn by his direction; or, if not, who did draw it, and from whom he had direction?
Mr Attorney-General (fn. 3) was called in. The Speaker interrogated him. He answered thus:
There was an Order of Council that came to me the 10th of December last; that day was Wednesday. I attended the Council that day, and usually the rest of the Term in the morning; in the afternoon I did not attend, and was sent for the next morning, and had Order to prepare a Proclamation for suppressing Petitioning, &c. I did deliver a Draught of a Proclamation according to Order, but crave leave to say, that which I drew, was not the same in the print. The Council directed me to take the Opinion of the Judges, relying upon that case in King James's time, in Crooke's Reports, I, according to my duty, did only, when I had an Order, prepare a Draught; it was considered of, and ordered to the Press, and I saw it no more. So far I did in this case. As to "Petitions tending to Sedition and Rebellion," what these Petitions were, I know not, nor that the King and Council were informed, "That such Petitions had no legal import." But if such words had been in the Order, as the Pro clamation implied, I should have considered of it. But the Order was general, "For seditious Petitions, &c." What the King and Council take those to be, I know not. Had the Order been, "For suppressing Petitions against the sitting of the Parliament," I should have very well considered of it. The Draught and the Proclamation do vary. That of 2 King James was declared unlawful by the Resolution of all the Judges. I think the words "Contrary to the known Laws of the Nation" are not within the Proclamation. I do remember that that case was in the Draught. I am very willing to give this Honourable House satisfaction, but for any thing done at Council, I hope the House will not require it of me. I am upon my Oath, and may be punished in another place, if I reveal any thing done at Council. My business is to bring the Proclamation to the Council, but how it was altered I cannot give an account. I know not whether it be lawful for me to say what was altered in Council.
Sir William Jones.] I did take particular notice of what Mr Attorney said. He said, "He had an Order to draw a Proclamation, and he presented a Draught to the Council accordingly." I would have it asked him, 1. "Whether he prepared the Draught, or whether it was brought to him?" I would have this Question expressly asked him? 2. "Whether he had not any private Advice from any of the Council to do this thing?" I take notice (by the way) that there is a great deal of difference betwixt the Oath of an Attorney-General and that of a Privy-Counsellor. It is but of late that the Attorney-General came into the Council. He usually, in the late King's time, sat without in a room, and when any thing of secrecy was debated, he withdrew himself. I would know, 3. "Whether the Draught was drawn by him, or ready-drawn and given him?" And 4. "What private Advice he had from any Privy-Counsellor in drawing it?"
Mr Speaker asked Mr Attorney accordingly.
Mr Attorney answered.] I believe it went to the Press immediately from the Council, having received the alterations after I delivered it. What transcribings afterwards, I never knew any thing of. I cannot tell whether any Draught was brought to me ready-drawn. I had nothing brought to me ready-drawn, but what I received from my own Clerk; and who delivered it to my Clerk, I cannot tell. I believe my Clerk might have assistance from somebody, but who I cannot tell. "But whether from a Privy-Counsellor?" I believe I had assistance, having been but a short time in my Place. If I be commanded by the King, I will acquaint you, who that Privy-Counsellor was, but I hope the House will not command me to discover the King's affairs, when I am under an Oath to the contrary. If I had advice from a Privy-Counsellor, it was by Letter from the King. But whereas I am the King's sworn servant, I cannot answer whether a Privy-Counsellor did assist me, but by the King's leave; and when I have that, I shall tell you.
Sir Nicholas Carew.] This Gentleman does not answer clear. It was the word "Privy-Counsellor" stuck in his stomach. You should ask him only, who it was?
Sir Henry Capel.] I see, when men are pinched in matters of proceeding against Law, they throw it upon the King, in this and the last Parliament.
Mr Sacheverell.] I would know what that Letter was, and who brought that Letter? It seems, it is taken for Doctrine amongst us, that though Privy-Counsellors advise to destroy the Government, they must not reveal it; though but one, two, or three be of the secret Cabal, their Oath is pretended. How shall you ever know what is against the King's interest? All the rest of the PrivyCouncil, their mouths are stopped, and the Cabal must rule England. I would consider that, when time comes. Before King James's time, that Doctrine was never allowed. I would ask the Attorney, "Whether he gave directions to his Clerk to draw the Proclamation, or who delivered it to him?"
Sir William Jones.] When the Attorney receives an Order, he directs his Clerk what to draw. I have heard "That the Clerk makes the Justice," but never that the Clerk made the Attorney. It is possible that the Attorney coming early to his Office, was willing to take a better opinion than his own; but, I suppose, that was not his Clerk's opinion. I would ask him, "By whose direction this was drawn, and who sent it him?"
Colonel Birch.] I think you would have the truth of this matter before you. The Attorney has given you such hints of his Clerk, that betwixt them both you may have the whole truth out.
Sir William Temple.] I will speak one word to Order, and another to the Question. It is natural, that one speak and all the rest hear; and it is your duty, Mr Speaker, to keep us to Order. Next, when a stranger is brought into the House, we ought to be quiet and silent, like the face of Authority, and you only are to ask the Questions. A stranger comes into the House, and you are to resolve upon all the material Questions before he comes in; and then to ask the Questions, and what else occurs to you. (This was said to give time to the Attorney.)
Sir Francis Winnington.] I speak to the Orders. I may venture to say, that Temple spoke irregularly; but he ought to be pardoned, having been so little time in Parliament, and so much abroad. I never heard a Paraphrase and a Lecture made to teach you your duty. When a person is to be called in, if he has any Question to ask him, he may move it, but he is not to interrupt the Debate.
Sir William Temple.] I shall speak now to a Question. The Attorney told you, "That he had his Clerk's assistance to draw this Order." Since he has told you that, you ought to ask him farther.
The Speaker interrogates him.
Mr Attorney.] The Clerk is at the Door who fetched the Draught from the other Clerk. The other Clerk is not here. I am sure, my Clerk did not draw it without his instructions. I cannot tell whether any person gave instructions. I have acknowleged that the Clerk had advice and assistance; but I cannot tell what advice and assistance the Clerk had from other persons—But one Clerk was employed in drawing it, and he that fetched it from him is at the Door. If the King thinks me not sufficient to draw it myself, the King sends somebody to assist me —There was but one person that assisted—I cannot discover that Letter without the King's leave; the Letter is at home—The Letter came from Sir Thomas Dolman, signed only by him; what command he had, I know not, but the Letter was directions relating to this matter—This Letter inclosed the Order, and another Order with it. I delivered one Order to the Clerk; the other was for proroguing the Parliament, and I was not so much startled at the Order for the "Proclamation against Petitioning" as at that for proroguing the Parliament. The Order that I had, imported nothing but "a Proclamation against illegal Petitioning;" had it been otherwise, I should have desired to have been excused.
Sir William Jones.] We were talking here about a Letter that brought that Order, and the Attorney says, "We cannot see that Letter without the King's leave," and that Letter ends in a kind of cover to that Order. I do suspect that something in that Letter may give you light. But because that Letter is not to be seen without the King's leave, I suspect it was with advice and directions, who Mr Attorney should advise with. But "that the Attorney cannot produce that Letter without the King's leave," implies something. If the King had ordered him to draw it, he had said little to the purpose, unless the King had required him secrecy. Certainly a man may tell that which is no prejudice to the King's service, when it is told. I would have the Letter produced, and the Attorney to tell you who he advised with.
Mr Attorney.] I believe that, in that Letter, Sir Thomas Dolman gave directions as to the Order, or something relating to it, and for the King's directions who I was to advise with, I must have the King's leave. Since that Letter came to me by the King's command, be pleased to give me leave to attend the King to ask him leave to produce it, that I may, whilst I am his servant, appear an honest man here, and not break my Oath to my Master.
Mr Garroway.] I observe that this Gentleman's Replies are Evasions, as in Lord Danby's case; you may remember, the King bore all the burden of the song. Put it plainly upon him. Charge him that he is the person that penned the Proclamation, and let him be discharged, how he can, by the King's Order.
Sir Francis Winnington.] I would have a certain Answer from Mr Attorney, "Whether he will answer you, or no?" He is upon difficulties; but no man's difficulties must hide things from Enquiry of Parliament. The Question is, "Whether the Draught of the Proclamation was ready-drawn sent to him?" When I was in the Post of Sollicitor-General, I was never guided by a Letter, but by the King's Warrant. It is a wonderful thing that in such a thing as a Proclamation, communicated to all the World, there must be such a secrecy in the Advice of it. Put it upon Mr Attorney to answer, or not; and then I will reserve myself for Debate.
Colonel Titus.] The Attorney has answered those Questions already. He tells you, "he must have the King's leave," and, it may be, some others besides the King. He has told you, "he had Advice and Assistance from a Privy Counsellor;" so it is to no end to ask him again what he has already answered. I would only send for him, and make him the Author of the Proclamation.
Sir William Jones.] I would plainly see the truth come out; and I do not know, but truth must come out. Let the Attorney know, that this discovery you require of him, is no breach of secrecy. If Sir Thomas Dolman do signify the King's pleasure to the Attorney, it is impossible the Clerk should inform you, who does only subsign the Order of Council. The signification of the King's pleasure is by the Secretaries. The Attorney does not pretend an Order from the King to keep this matter secret, only this Letter from Sir Thomas Dolman. Then tell him, that this Letter is no signification of the King's Pleasure, but of the Order of Council only.
The Speaker.] Mr Attorney, you seem to evade, in your Answer. A Letter is no secret matter; in itself it is no secret. The House expects that you should discover the Letter, and the Person in the Letter named, whom you were to advise with.
Mr Attorney.] The Letter is not here, and I have it not. I desire that time may be given me, and I will produce the Lecter in an hour's time. I am not willing to break the Laws in any thing, nor to conceal the breach of Laws. If it be your pleasure that I must declare his name, I was directed to advise with, I must. It was my Lord Chief Justice North (fn. 4). I acknowlege that the Assistance I had was from him.
Then the Vote was read concerning Petitioning, &c.
Lord Russel.] I see, here is a silence in the House, and therefore I shall trouble you with a few words. I wonder to hear it moved, to adjourn this Debate till to-morrow. We ought to do our duty in questioning Excesses and arbitrary Proceedings in Recesses of Parliament, when we see such running down the Protestant Interest, and promoting the Popish. But this is no news. Pray let us do our part. And I hope the King will be convinced, in time, and rely upon our Counsels more than upon any arbitrary Person's whatsoever.
Mr Paul Foley.] I believe that my Lord Chief Justice North has been a great instrument of Injustice. I have heard that he is fitter to be the Duke of York's Chief Justice than for the Crown. It is high time to take notice of him; and it is fit you appoint a Committee to draw up Articles against him.
Sir Samuel Barnardiston.] I second the Motion, and I think no man deserves it more.
Sir Francis Winnington.] At the opening of the Parliament, you made a Vote of the Subjects Right of Petitioning, &c. Now the first thing you will do, is to consider whether my Lord Chief Justice North has been a breaker of those Rights and Privileges.
Sir William Hickman.] Now you have plain proof, I am for impeaching him.
Sir Leoline Jenkins.] I move, that you will read the Proclamation before you resolve any thing in this point. (It was read.) I never read the Proclamation since it was set out. I find nothing in it that declares it "against Law to petition for the sitting of the Parliament," nor how far my Lord Chief Justice North, who is a great Sage of the Law, is accountable for this to the King, or you. This was debated in Council. The Attorney-General has his recourse to the Council for his Authority, from whom he received the Order; and withal he was to consult my Lord Chief Justice North, who drew the Proclamation. But though North be a great Lawyer, yet he is no more answerable for it than other men. When the Draught was made, it was laid before the King, and the sanction the King in Council lays on it gives it the Authority; and, I think, this cannot be charged on North as Lord Chief Justice, but as a Privy-Counsellor, and one versed in the Law.
Sir William Temple.] You are told by Mr Attorney, "That he drew the Proclamation according to the Order of the Council," and, you see, the Proclamation seems to be grounded upon known Laws. I have heard nothing against it, but the Decree of the Star-Chamber, as if it made that to be Law. This the Attorney laid upon North. In these things the King is informed by his servants of the Long Robe, and, it may be, North has informed the King against the Law of the Land. That men who know better should inform the King ill, to the destruction of the Government! I move, that the House would send for North, to give you an account upon what known common Laws he grounded his opinion; this way you may come to inform the King who should inform him better.
Sir William Jones.] I perceive now, by what the Attorney has said, and the Privy Counsellors, that the matter is clearly out; what is against Law is told the King for Law. North, you may be sure, will not come here to deny his being consulted in this Proclamation, but to make it good. If he offers good Reasons for it, I may be of his opinion; therefore I second the Motion, "That he may come, if he please, to make good the Proclamation."
Colonel Birch.] I think what is moved is according to Scripture, and right Reason; if North please to signify so much, he may be heard, before you condemn him.
Colonel Titus.] I speak to method of Proceeding. That the person accused be heard, is very fit, but it is upon his desire that he be heard. When the Duke of Buckingham, in the last King's time, was impeached, he sent the Commons word, "That he heard there were Articles against him, and desired he might be heard."
Sir Thomas Clarges.] If you had voted an Impeachment against North, this way is very well, but you gave notice to Lord Chief Justice Keeling, &c. and Lord Chief Justice Scroggs you sent for upon occasion of taking examinations. He is no Peer, and he comes by your Order. "Ordered that he be sent for, &c." If your Vote stand, Impeachment will follow, and is before you; but let North have intimation that it is the desire of the House that he attend you.
Colonel Titus.] Pray let that Gentleman show one Precedent, that you have ever sent to a man in this manner.
Sir John Trevor.] When the Duke of Buckingham had an accusation against him, in the Long Parliament, he sent a Letter to the Speaker to desire he might be heard (fn. 5). Lord Arlington the same (fn. 6). If it be the sense of the House, any Gentleman may give the Chief Justice notice that he may be heard, as from himself, but I would have no Order for it to remain upon your Books.
Mr Hampden.] I doubt you cannot send for an assistant in the Lords House by Order. Lord Arlington and the Duke of Buckingham desired to be heard, and some Honourable Persons have desired it. You may enter it upon your Books, "That leave being moved for, that my Lord Chief Justice North might appear, and be heard, in the House, that if he appear he may be heard."
Mr Sacheverell.] What you are moved, under favour, is irregular. If you think that the Attorney-General has not told you true, you may send for North. I know, you will put it to the Question, "That, upon the Evidence you have heard, there is ground to impeach Lord Chief Justice North."
Sir Henry Capel.] This is no Sentence you are about to pass upon him; but the Question is, "Whether there be matter in what the Attorney has informed you to charge North." First pass a Vote, "That the Judge has violated the Law;" till that Vote be, you cannot proceed to Impeachment.
Mr Trenchard.] Will you call North hither to matter of Law, or matter of Fact? When both are proved, bring in the Impeachment, and then let him be heard.
Colonel Birch.] Formerly, when the House of Commons impeached a man, he never grew sat; but now it is quite the contrary, he never grows lean. The Attorney denies the drawing the Proclamation as it was published. The Authority you go upon is, that the Attorney was to be assisted by the Chief Justice to draw the Proclamation, but that the Draught he drew, was not the Draught printed.
Sir Thomas Meres.] The Attorney seemed to infer, that what assistance he had was from North, but his Draught of the Proclamation was changed; but by whom he knows not. The regular Parliamentary way is, to put the Question, "Whether there be matter or ground for Impeachment, by what you have heard here." He is not condemned by the Question.
Sir William Jones.] I was for North's being heard, as for his advantage, but it was upon what fell from a Member. But to what should he be heard? To make the Proclamation good by Law? I am now for saving his labour of coming hither, for it is to lessen our own Evidence. All the Attorney affirms is, "That the Proclamation was drawn by himself, but altered at the Council-Table." From whence you will infer, that the Proclamation was drawn legally, but that the Council spoiled it after it came out of the Attorney's hand; where they inserted it, "to be against Law to petition for the sitting of the Parliament," and so ground it upon an extrajudicial Judgment given in the StarChamber. That learned Book, of Crooke's Reports, though apocryphal, in two days time comes to be Law. I do not speak against a man's putting in, or leaving out a word—But in that Proclamation, there is a declaring Law, "That Petitioning for the Parliament was illegal." The thing is, the matter of the Proclamation, with the Reason inserted; but if North deny it, you will not be satisfied, nor with his justification. You are the Grand Jury of England, and as a Grand Jury, you may hear a man indicted, or not; but it is rarely done at a Grand Jury. There is no necessity to send for North before he be impeached. Sometimes persons desire to be heard after they are impeached.
Sir William Temple.] I have seen a Parliament abroad, in Ireland, but never was, before this, of any in England. It is not moved that North should be heard to justify what he had done, but that the King might know, he could not justify what he had done.
Sir Francis Winnington.] I lay great weight upon Jenkins's terming him "a Sage of the Law (fn. 7)." He tells you, "The thing was done in Council, and North is no farther answerable for the Proclamation than other men;" but it is no Argument, if ten be guilty, that therefore one man is not guilty. You have voted the illegality of the Proclamation; you have a great deal upon your hands, and may thank the many Offenders for it. No Bill of Indictment, found Billa vera, convicts a man; it is but an Accusation; and you may vote what you have heard a sufficient ground of Impeachment, &c. I was not willing to hear North, but I should be glad that so great "a Sage of the Law" could make that great point good.
Resolved, Nemine contradicente, That the Evidence this day given to this House against Sir Francis North, Lord Chief Justice of the Court of Common Pleas, is a sufficient ground for this House to proceed upon an Impeachment against him for High Crimes and Misdemeanors.
[And a Committee was appointed to examine the Proceedings of the Judges in Westminster-Hall, and to prepare Heads of an Impeachment against him.]