Grey's Debates of the House of Commons: Volume 9. Originally published by T. Becket and P. A. De Hondt, London, 1769.
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Saturday, June 1.
Mr Leveson Gower.] I desire that it may be enquired, why the forces sent to relieve Londonderry came back again? If Ireland be lost, England will follow—And why the man that was sent to enquire the Condition of Londonderry, landed not?
Mr Colt.] These delays must lie at somebody's door— A poor parcel of People defended themselves bravely, and gave a stand to the Enemy—I would enquire who were the Authors of the Counsel, when the Commissioners were sent to the Army—That brave Regiment at Stamsord, instead of being sent into Ireland, was to go to Antigua, and the King knew nothing of the matter, but that it was one of the Marine Regiments. I would have this part of the Instructions to your Committee to enquire.
Mr Howe.] I gladly stand up to second this Motion, and I hope, before we part, to second something of the same sort worthy your consideration. They that came back from Ireland perished in the Ships by ill Provision; those who gave this Counsel are greater offenders than they that executed it. I see no Justice done upon them; and I should regard them no more than a footman in the streets. I find stones thrown at my back, and I know not who does it, but if I find Persons in the crowd that are my enemies, I believe they did it. King William came over and delivered us from these Counsels; if we be delivered to these men, who formerly gave the ill Counsel, and were of the Privy-Council to King James, they are not fit to be Counsellors to King William. If you deprive him of these servants, who would draw the King into the same inconvenience they did King James, I hope affairs will go on much better.
Mr Smith (fn. 1).] I heartily join in this Motion, but the Motion is properly "for a Committee to enquire into the miscarriages relating to Ireland, &c."
Sir Robert Howard.] I would willingly do the King present service, but now we are to apply ourselves principally to this Business. I am glad I now stand in a Parliament, where I may speak for the King and Country, and not by interpretation of others, that we speak against the King, if for our Country; but now it is otherwise. Two things are to be done concerning Ireland; one is, what has been done amiss, who should have stayed to have relieved them; the other, the slow assistance that has been sent them. He that will not speak plainly in this, must go against his judgment; I am sure it is against mine. You have made a Bill to punish Mutiny and Desertion. This of Ireland is of so ill consequence, and a Question, whether this matter comes within those two heads. The King will be tender in these things.— My opinion is singular, and therefore I mistrust it. Great minds do great things, by conquest of Countries, but to enslave their Laws and Subjects is the least part of Princes. Edward III knew how to conquer, and had great Aids; Edward II, and Richard II, to enslave us at home— We have a King of that great mind, that, when we came into this Power, he might have quickly exacted it. Therefore it is no fault of his—If there be the least doubt in executing martial Law, he will not do it—But as for the Lords, we have a late Judgment in Oates's Case—I will say no more of that. If you are wanting in this, you send word to Londonderry to give it up. There is a thing called Impeachment; and it is the right of the Commons to do it. Though the King will not come to it, yet I am of opinion that the Act itself is a desertion of Lundy. If we do not our part, and are wanting in our Duty to the King, we are like to have a melancholy Session when we meet again. I move that a Committee may sit strictly to enquire if these men are worthy of an Impeachment. I would have a search, and a speedy search, into these things, that Ireland may see we desert them not.
Mr Harbord.] I hope we shall not only enquire into these, but what has been done in general, and if any person be faulty, to represent that too to the King. As to Ireland, nothing has been more industriously followed in some places, and defective in others. There was sent above 2000l. in Provisions, and not only to bring themselves back, but their Provisions too! Either they are guilty of the greatest Treason, or Cowardice in the world. A CourtMartial will handle these men tenderly, and I do not know whether an Impeachment will reach them; but if you do nothing, all will be lost. One came from Glasgow to Londonderry with Provisions, hearing it was straitened: I sent the person to take away from the Goldsmith what he pleased, and he will be at Glasgow in sixty hours. I have long foreseen such a storm as this, and I have carefully entered all this for your safety.
Mr Hampden, sen.] I move for Instructions to your Committee to enquire into a fresh pursuit about the Victuals. Some steps have been made towards this. An Officer of Chester has been committed for great abuse; on complaint, the Provisions he made were so bad, that a great many were little better than poisoned, and in a languishing condition. The Prisons in Chester Castle broken— This is so newly done that it may be enquired into, and it is worth your Enquiry what guilt lies upon the Victuals.
Mr Harbord] The Victuallers of the Navy, Haddock and the rest, sent down to the person, and Col. Richards told him, the Seamen had rather drink their own water. The Victualler's name is Anderton.
Col. Birch.] This of these miscarriages is a great Business, and, if well followed, will make the Rabbit bolt. I would have Instructions given to your Committee to enquire into this. Now it is a good season, this month, and they may go in two or three days and come back; all that know those Seas, say, they may tide it half Sea over, and anchor at this time of the year. I would enquire into these things in general.
Sir Joseph Tredenbam.] If there be no other Person to blame than him named, you come not to your end. Therefore I would have it enquired to the bottom.
Mr Boscawen.] I know not why we should be tender in naming Persons. I think they should be particularly named, not only in the matter of fact, but their opinion of the whole.
The Speaker.] The Committee are to report only the matter of fact, and 'tis proper for you to give opinion of the whole.
Sir Robert Clayton.] 'Tis a thing admirable to me, that Col. Richards, who raised the first Regiment to fight against the Protestant Religion under King James, should be sent to maintain it. I would have this for Instruction to the Committee.
Mr Hampden, Sen.] Lord Lisburne's Regiment was thought fit at first to go to Antigua till it was reformed, which is now; but now another Regiment is ordered.
Mr Harbord.] I would have it enquired into; but I have heard Mr Blathwayte, the Secretary of War, say, "that the King would have a proper Person to go, and Sir George Lesley was pitched upon, but he lying near Scotland, the King had changed his mind, and that Regiment was fit to go."
Mr Montagu, Clerk of the Council.] I wonder Gentlemen should twice repeat this of Lord Lisburne. The first Regiment was Lesley's, and that was ordered for Scotlaud, and the Papists were turned out of it; as good a Regiment as his, Lord Roscommon's Regiment, as more proper, was ordered for Ireland.
Mr Howe.] I am glad of this good beginning. But I would have this Committee to examine particulars, why we had not kept the Papists for Hostages, and why Admiral Herbert was sent to sea with but nineteen Ships, when he should have had thirty, and why so many ill men in all Offices. It seems, those Gentlemen want sense to manage, and so put in King James's Officers; one Bucket goes in, and another out. I would enquire into those that give these advices. 'Tis said, in the Country, we are betrayed, and if we address the King to remove those who are under Impeachments for Crimes, and those that managed King James's affairs, we do but what we ought.
Mr Holt.] We are beholden to Londonderry; if that had not made a good resistance, King James had been at Edinburgh before now. I never expect redress of these miscarriages, till we come to the root. If Londonderry miscarriage be not redressed, it will come home to us. The old Army, we see, is continued, and the new one laid aside. Those who were King James's creatures, are now in Office and Employment, and in great ones; and those who have been of the Cabinet-Council with the Queen.
[Resolved, That a Committee be appointed to enquire who has been the Occasion of the Delays in sending Relies over into Ireland, and particularly to Londonderry.]
Monday, June 3 (fn. 2).
On the Heads for the Bill of Indemnity.
Mr Howe.] I move that you proceed upon the Indemnity; and, as for Offenders, I would shake them off gently from my Hand like a Viper, but when it is upon the Ground I would tread upon it, and destroy it, that it may hurt no more.
Mr Garroway.] We find great miscarriages in the Government, but we do not know where to place them; the main of our miscarriage is, that we are not quicker with our Money to supply the present Emergencies of the Government. As for those who have abused their trust, let better men be put in their places. The military misearriage is the source of all. Unless we enable the King, he cannot do it. I am sorry you give the Money at four quarterly Payments: I would have had it at two. I will not presume to make you a Motion, but I would go on this Bill of Supply to-morrow, and on Thursday on this Indemnity.
Tuesday, June 4.
On the Heads for the Bill of Indemnity.
Mr Howe.] I have an eye only to the present faults of the present Government—(I mean no reflection upon the Government.) But I see we have no Fleet gone out, and the French are coming out. I thought all the Wisdom in the World could not have brought us to the pass we are in, much less the Indiscretion. Qui non vetat, prohibet. I suppose it is the duty of every Man in the Council to press forward in these Affairs; for the miscarriage there is no question of. I should be sorry to put the Scandal upon any Man, but we must do something for the safety of ourselves. I look after being delivered from Popery and Slavery, that is all I desire to be delivered from; but I would have those Persons that are obnoxious withdraw themselves, without any farther trouble; but I cannot believe that those who have sat in Council with King James, to the last, are fit now to be in Council.
Sir Henry Winchcomb.] I second the Motion to remove all those Persons, who sat in King James's Council to the last.
Sir Wm Strickland.] I would look for what is to come, and address the King, that those who have been the Authors of our former Miscarriages, may be removed from his Councils.
Sir Ralph Dutton.] It seems, by the silence of the House no body is in fault; therefore pray let us go home.
Sir John Guise.] Every body is satisfied that we are governed by a sort of People who may come within the Indemnity. I know not but our misfortunes are from the same Hands still. When they are at the stern of the Government they may do us hurt in point of Trade. The Dutch have Convoys for their Ships, and we have none.
Sir William Williams.] I see men have a quiet and easy Spirit upon them. I will make bold to rouse them. I move for the Bill to assert our Liberties.
Mr Howe.] 'Tis in vain to assert our Liberties, when men take the freedom to break them; they were always our Liberties.
The Heads were read.
Mr Howe.] There are a great many Heads to speak upon. If Counsel have done ill, and we are merciful without Justice, we shall do as ill. If it be their faults, it may move pity; if their confidence, it may move your anger. Some have been imprisoned, others whipped at a Cart's tail. King James left Pardons to many: I would know therefore, if Pardons are pleadable against an Impeachment? If they are, we had as good except no body; therefore I would know, whether they are pleadable, or no?
Sir John Thompson.] I wonder Gentlemen that carried up the Impeachment should be so silent in this matter. If this be an injury to the whole Nation, I know not why they should still sit in the Lords House under Impeachments. I have discharged my Duty to my Country, do what you please.
Sir William Williams.] It has been said, "That the Laws of England are cobweb Laws, that catch small slies, and let the great ones run through"—Whether a general Indemnity, or with Exceptions,—that sticks in our teeth. You must either pass a round Act, or leave out all. As long as this hangs in the Air, men will be desperate. In the first place, take care for the Crown and the Government; and the next thing to do is the means, either by an universal Indemnity, or with Exceptions. If you go to particulars, then take care how far Impeachments, according to Law of Parliament, may be pleadable. Though I have suffered by Parliaments, I will vindicate them while I live. If you will lie under your own Breaches, I can shift for myself as well as another, but I will never complain of my particular. I have no Pardon. Every man needs it. I had my share—'Tis manifest that the Commons have impeached persons. I cannot forget the Parliament of 1680; what is become of those Impeachments? Not one Message to the Lords yet sent about them. At least we ought to come to some conclusion, how far Pardons are pleadable against an Impeachment. There are Pardons, and, I hope, learned men will not retract their Opinions, that a Pardon is not pleadable to an Impeachment in Parliament. We are in a young Government; you would not have that point lurking; either declare that it is a Bar to an Impeachment, or not; and then the King may know what to do. Shall it be said this is too hot a Question for the Commons to touch, and leave this to the House of Commons a vexatious Question, to say one thing and do another? If Pardons from a Prince be a Bar to Impeachments, farewell to redressing Grievances! It is a vain thing ever to attempt it again; you will be like the Commons in France, to give Money as you are directed. I move this for Posterity, that the safety of the Government may not be lost.
Mr Hawles.] 'Tis necessary to state this matter controverted; how a Pardon can be allowed to be a Bar to Impeachment: 'Tis necessary to determine it, if persons you except have Pardons in their pockets; if so, you had better pass the Indemnity without any Exception. When the Duke of Northumber land, in Edward VI's time, had a design to bring the Crown into a Protestant Family, the Judges were prevailed upon, by him, to give their Opinion; who said, "If they might have their Pardons after they gave, they would give them." They gave their Opinions in one hand, and had their Pardons in the other; the whole eleven Judges. If the Law of Parliament in Impeachments be doubtful, 'tis necessary to declare it. Do it now, and declare what the Law is.
Col. Birch.] I think this point was debated in the Parliament of 1678, and I thought this would not have lost your time, being to be found fully in your Journals, without a Negative. By the Pardon that great Lord then pleaded, he confessed himself guilty of the charge; that case we all know, and, when it is farther debated, I will tell you my thoughts. 'Twill be necessary that the King should know, that no Pardon is pleadable in Bar against an Impeachment of the House of Commons.
Sir Joseph Tredenham.] Though the Pardon mentioned was pleaded to an Impeachment, yet it never came to an Act of Attainder. I remember, in the Debates then you had some Precedents of Edward III, of some that pleaded Pardons. The Spencers in Edward II, in Richard II's were pardoned Impeachments in Parliament. Not that I stand in Justification of Persons accused, but certainly 'tis for the advantage of the Crown, and its Prerogative is to its own Benefit. I would have a matter of this dangerous consequence remedied by a Bill, but I believe it is not Law already.
Sir Henry Capel.] I have observed, that of late years great Attempts have been made against the Government to pluck it feather by feather. If we have nothing to do here but give Money, is it a Parliament, or a Senate of New Rome, to set rates upon Fruits and Chesnuts? 'Tis of the greatest consequence in the world that saying, "that the King does no wrong;" but who must be answerable for the Miscarriages in the Government, but the Ministers? In Germany, though he be a Sovereign Prince, he is accountable to the Assembly of Princes for his actions, where all things may be redressed. If the King's Ministers, after ill Administration in their places, may plead their Pardons, you have not one King but twenty. I would have but one King, and the Ministers, who are our Fellow-Subjects, are questionable as ourselves. You are told of a Bill of Attainder, and that is a summary way of Proceeding, you may read it; but if not by Impeachment, it is a good way to prevent all prosecution of Offenders. Pray put the Question, "That an Impeachment of the House of Commons is a Bar to all Pardons."
Sir Richard Temple.] If it be so, I would declare it, but if not, make no reflection on it. Formerly there were Appeals of Treason, and those the King could not pardon; but by Henry IV all Appeals of Treason were taken away; as well as in Murder and Felony, the King could not pardon. I would gladly hear the Long Robe declare that this is a Law. I should be glad if we could come at it, and I should have no tenderness for those who have violated the Laws and Liberties. You may make void Pardons, by Act of Parliament, as in the Case of the Archbishop of York, which was voided. I profess, I am doubtful, when no man has asserted this to be the Law of Parliament. 'Tis not in the House of Commons to declare Law but in a Christian Way, and an Act may be made, for the future, to settle the matter. I would not assert a thing we cannot make good elsewhere.
Sir William Williams.] I am called up by Temple; he has refreshed my memory. If a Subject be murdered, the next of kin may bring an Appeal, and for that reason an Impeachment is not pardonable, because it is at the suit of the Subject, and an Impeachment is an Appeal of all the Commons of England. He mentioned an Address in Edward III's time, "that no Pardons should be to Persons impeached," and it was resolved in the Negative, and the Commons sat down by it; but God forbid, all Addresses should be objected, which are done in modesty! Can he give one Instance; that ever a Pardon of an Impeachment was allowed in Parliament? The Law of Reason is for it.
Sir Robert Howard] I have no mind to speak for this case, that the Commons should have this turned into a Law; we should be so fatal a People that all your Petition of Right would be damned by it, and must that have a blemish upon it, because you desired it? And you confess it is not Law, because you desire it to be made Law. If that argument be so, whatever you desire to be a Law, is not lawful till confirmed.
Mr Ettrick.] The Lawyers of Westminster-Hall know little of this matter. It is of great consequence one way as the other, either to the King's Prerogative, or the Right of this House. As to the inconvenience, it seems extremely wrong on one side, if one way, he must have a Pardon; and in pleading that Pardon, if the Lords should hold the Law to be otherwise than you do, you will have a foil in the matter. The King's Prerogative will have a great consideration here, as well as in the Lords House. I move that you will go on with the Heads of the Indemnity.
Mr Hawles.] Something of the King's Prerogative I hear offered, but if we go to the Precedent or Judgment upon Pardons pleaded, we must go to a parallel Case. This is an Appeal to an Impeachment, and then a parallel Case will carry it. The King cannot pardon, in a private Case of an Appeal, much less what is against the Public. As to what is said of the Statute which takes away Appeals of Treason, it was from private Persons to appeal one another in Parliament, as in the Case of Lord Mowbray, and the Earl of Hereford, they were private Animosities. If you allow Pardons, there is an end of the Case, and they need not plead a Pardon in Bar, but in Abatement only. In that mentioned of Edward III, &c. there is a little weight in that.
Mr Brockman.] I wonder this should be so debated now. I remember a stamped Pardon by Creation. I appeal whether this did not formerly occasion Conferences? Lord Anglesea managed for the Lords, and as great a Debate was upon it then as now, and the Lords agreed, "that it was no Bar to an Impeachment;" and in the next Parliament was the same thing debated, and another Debate did arise of the continuance of Impeachments in intermission of Parliament; and it was concluded, "that in intermission of Parliament there was no discontinuance of Impeachments." You may see the Journals, that all this is true in fact.
Sir Christopher Musgrave.] If that be already settled, then the Point is well declared already. I doubt the Lords did not declare it.
The Speaker.] This House did declare it, and demanded Judgment of the Lords, upon Lord Danby's pleading; therefore before you give your Judgment, see how the method stands upon your Books.
Sir William Williams.] Lord Stafford was impeached in one Parliament, and attainted in another.
Resolved, That it is the Opinion of this House, that a Pardon is not pleadable in Bar of an Impeachment in Parliament.
Sir Robert Howard moving in favour of Dr Oates's Judgment (fn. 3), some Gentlemen hissed. He said] Such Gentlemen as did it I shall not be reconciled to, unless they love Whipping and perpetual Imprisonment, and no confirmation of the Popish Plot. I do acknowlege the Lords the Supreme Judicature in Parliament; but I know the Legislative Power may repeal a Judgment they have given. The Lords have affirmed the Judgment in the King's Bench against Dr Oates, and that a Minister of the Church of England may be degraded of his Priestly and Canonical Habit there: I hope Gentlemen of the Church of England are not of this Opinion. This was a temporal Judgment, and Lord Chief Justice Jeffreys gave it. The Lords have worded the Judgment in one place "barbarous," and an Algerine Judgment for an English crime. With all my Heart let Oates be brought to Tryal for Perjury, but nothing can be more fatal to the English Nation, than that his testimony should be sufficient against Lord Stafford, and yet he be convicted of Perjury. This may confirm such Judgment for the future. The Judges all present in the Lords House gave their Opinions, "That the Judgment against Oates was contrary to Law, and erroneous, and ought to be reversed." Now I have said all this, I would not have Oates exempted from Tryal of Perjury, but not the Judgment of the King's Bench confirmed, to have these fatal effects; Imprisonment for Life, Pillory, Whipping, and to confirm the Popish Plot, to suppress all that, and it may be to reverse the Attainder of Lord Stafford. and void that Tryal. The Lords have found no Error in the Record, and therefore have adjudged the Judgment, and affirmed all the Parts of it; and now I leave you to judge, whether a Bill be not fit to be brought in to reverse all this.
Mr Howe.] 'Tis strange that Oates, who has saved the Nation—and if now there must be a Question of the Popish Plot—I am for forgiving faults—The Romans had a respect for the Geese that saved the Capitol, and would not let them be killed. At this rate, Johnson (fn. 4) must be whipped again. I am so much for the Church of England that I abhor all these Proceedings, and so much against the two last Reigns—Possibly it is the Interest of some Persons that no Witnesses may be believed. I second Howard's Motion.
Sir William Williams.] If Perjury be excepted out of the general Pardon, Oates will be excepted, and you cannot remedy it but by a Bill. I speak not for the sake of Oates, but for the Lords and Commons. By this great Example, the little Dogs will bark after the great Curs. The Lords have affirmed this Judgment, and there is no way to void it, but by an Act of Reversal. 'Tis not fit that it be mingled with the Indemnity, but be by itself a Reversal, that such villainous Judgment may not be executed upon any Commoner to be thus treated for the future—And you have no way to void it but by Act of Parliament.
[June 5, Fast-Day; June 6, 7, 8, and 10, Omitted.]
Tuesday, June 11.
On the Heads for the Bill of Indemnity.
On the Judgment against Oates, reported out of the Lords Journal.
Sir Robert Howard.] By your Order, we have inspected the Lords Journal, and have examined the Business of Oates's Judgment affirmed by the Lords, viz. "The Lords find no viciousness nor defect in the Judgment; therefore 'tis here averred, and shall stand in full force and virtue;" and so entered upon the respective Roll. Having said thus much, I should not have troubled you with it, had I not thought it as great a thing as could come in Parliament. I am zealous in one thing, not to blacken all things relating to Protestants, and whiten Papists. The rise of this began upon the cendemnation and censure of two Parliaments, in the Business of the Exclusion of the Duke of York, &c. Then it was when a Popish Successor was thought no ill thing by the Lords, and then it was that a Popish Successor was excluded by you; when the strenuous assertion of that became a merit at Court, then the Attributes of a Popish Successor were asserted; to secure this great Business, to secure a Popish Successor, came on the surrendering Charters of Corporations; when Judgments of Law came to be given on the Person, not the Cause considered, there grew the rise of a Popish Successor, the violation of the choice of Sheriffs, Corruption of Judges, and their extraordinary Censures, which produced this Judgment on Oates and Johnson, one of the greatest Persons of the Nation: He suffered under this, and was stripped of his Ministry. I am heartily sorry this is come before us, but I am afraid that the affirming that Judgment condemns all we have done, and whatever the Papists have done is justified, and the Protestants condemned. Oates is the least of my thoughts, but to have Oates's Judgment confirmed, and we all reproached for it, that sticks with me. Unless we are grown fond of Jeffreye's Judgment, which condemns all we have done. I move for a Bill to repeal this Judgment.
Serjeant Maynard.] We do not know yet what Judgment this is, affirmed by the Lords. I desire the Judgment may be read.
Sir William Williams] Read the Judgment, and then you may have recourse to the Record, on Occasion.
Serjeant Maynard (fn. 5).] I was in Court when Oates was tried: He was indicted on two Points; such a thing, such a time such a day, but he was not there at that Time, and pleaded Not guilty. There were eighteen or nineteen Jesuits sworn against him from St Omers College. I never saw Evidence delivered with more vigour than that was. He would have begun with the latter, but the Chief Justice told him, "that was his worst way—Truly if he was not at St Omers at the time, all would fall." I was present when he gave his Evidence in this place; he said it once, and twice, and varied it not, but some would have it a third time, I was against it. He was asked particularly here of a Person of Quality; he could not say it was the Duke of York—His Evidence was affirmed by several Tryals—It cannot be imagined who should suborn him. Two of his servants were suborned to swear things against him of a filthy nature. These two Witnesses were examined, and it fell out, one crossed the other in the Evidence. Says one, " 'Tis true." Says another, " 'Tis not true." Why should these two servants swear voluntarily against Oates, unless suborned? There is a Man called Sir Roger, who, under the pretence of maintaining Church, publishes, "that Oates alone was a single Evidence against the Duke of York;" and, "that every Magistrate, or chief Governor, may forbid any Religion, and to do this, the King has two advantages, he has Law, and Arms." This Sir Roger published before Oates's Tryal—Whether true or false, Oates was an Enemy to the Popish Religion—I speak this but to the purpose, eight or nine swore possitively he was at St Omers, and he had Evidence to prove that he was not. He was convicted of Perjury only in matter of time, which he had four or five Witnesses to prove, but could not be heard.
Mr Hawles.] You have heard of some People that disown the Government, and disperse Pamphlets; and no wonder, when the worst Judgment that was ever given in Law is affirmed by the Lords. There is no such Judgment in Law against any man, nor ever so exacted, and this gives occasion for People to talk, "that one House was for it, and another House against it." This Verdict cost the King two thousand odd hundred Pounds. I have known, that when a Jury have had a Guinea more given than ordinary, that Verdict has been set aside as if given amongst them. If a Jury goes against the Humours of the Court, as in Willmore's Case, and others, they are browbeaten, and as the Jury are used, so are the Witnesses— And this very morning a Gentleman, who did undertake to prove Ireland in London, was checked for it.—Sir Patience Ward and Sir Thomas Pilkington's Information of Perjury—I would have this Judgment against Oates called "a cruel and illegal Judgment," and so to vote it.
Serjeant Maynard.] To vote this Judgment so here, will not do your work, for here is the Judgment of the Lords against your Vote; you must do more; for when there is a Record in the King's-Bench, there it remains. I would not meddle with the Judgment that the Lords have given, but you may complain of it as a Grievance, and may so take notice of it as a stab to our Liberties. Vote this illegal, and you have the Opinion of the Judges in the Lords House with you; vote it a Grievance, and you may have this Judgment cancelled.
Sir William Williams.] I think this will be too little. The Lords are a Court, and have recorded their Affirmation, and it is past their power to reverse it, and it is not safe for the Judges to give another Opinion in the King's-Bench; but if they have the Countenance of this in the King's-Bench, the Lords themselves may feel it. This Man is a Clergyman, and to be unrobed, and divested of his Orders in the King's-Bench, and so to continue during his Life—How a Court of Law can do this, I am unsatisfied. But what we are to consider of is this, whether a Subject should rest under that Judgment. There may be a Precedent for whipping, but for all these parts in one Judgment, let any man give us a Precedent to square with that Judgment. It makes the Judges arbitrary, and hereafter the Judges may be most injurious in punishing, this Judgment having had this Sanction in the House of Peers. This is the Case; and what is there fit for us to do? But one thing; and that is to reverse the Judgment, by Act of Parliament. Go in the ordinary way of the Legislative Power, and not by the declaring this or that, but a reversal of that Judgment, as illegal. If we vacate the Judgment only, that will not do; the consequence will be that we must admit it for the future. But if, by Law, you declare it illegal and erroneous, there is an obvious objection, "that the Lords will not agree to the Bill;" but that is no answer to me, for the Lords will do it, and have reason for it, for the Judges gave their Opinion against it, (but that is not upon Record) I do not deliver it as History, but it confirms my Opinion, that you have opportunity to reverse it by Bill, as illegal, and that is worth a thousand Votes. The Writs of Error that Oates brought are upon two Records, and they are both entered affirmed in the King's Bench, so that it cannot be vacated but by Bill of Reversal.
Col. Birch.] We are now a great many Gentlemen met here, who were not here in the Examination of the Plot. According to my Place and Ability, I had in the Chair much of the Examination that went through my fingers, which was so clearly proved, that all England was satisfied, as well as the Lords and Commons. I know no blow can be given like this to the Lords and Commons. We well know who they were that did what they could to make this Plot a ridicule, bur when a jesting business could not do, they took all the ways they could to suppress it. Under a Popish Prince, I expected much more than from Omers; I dare not call it St Omers; and now that any Body should be so bold as to pin this at our Breeches, let them answer it. The House was dissolved, or else I had made a warm Report on the Monday. But as the Commons are made black by this Judgment, so I would have a Bill to make somebody black too, and if we are denied it, to go home with Honour, and they with Shame. As they made us black, so the Bill will wash us, and lay the black where it should be.
Mr Howe.] I am sorry we are under sufferings; still the same hands are upon us. If we have a Bill to vindicate ourselves, we are sure the People will vindicate us against them. I would vote this Judgment "illegal, cruel, and a Grievance."
Mr Boscawen.] The affirming this Judgment is not for Oates's sake, but for the sake of the Popish Plot. I think there was so much art used to get that Judgment, that, for that reason, I would lay it to heart. I wish, the same spirits have not the influence to do the same things again. I think it not amiss to add to the Question, "That it is your Opinion that this Judgment against Oates was a design to stifle the Popish Plot, and by such arts as 3000l. spent upon the Tryal." I would have something of that in the Question.
Sir Henry Capel.] This Judgment has a bottom deeper than I can well express it; it cost dissolving three Parliaments. I remember when the Crown and Robes were carried in haste in a Chair at Oxford, to dissolve that Parliament, when we were upon the Point of discovering Fitzharris's Plot. If we pass this Judgment by, we approve all this. If you add to your Vote, "upon suppressing the Popish Plot," the World will then see the reason of your Vote, and the occasion of this Man's Tryal, and the World will know it was upon the Popish Plot.
Mr Foley.] We have the Judgment before us, and what it cost, but, besides that, many have had continual Pensions since. Sir Thomas Whitgrave of Staffordshire has had one, and no waiter. Therefore I move as before.
Sir Thomas Lee.] Every body has agreed in the end; we differ only in the means. The consequence of this Judgment affirmed will affect every body, and, perhaps, if to do again, would not be done; the consequences were not foreseen as observed. 'Tis to establish a Rule of Punishment hereafter. But consider, Oates was not the sole Evidence that convicted Lord Stafford; therefore restrain your Vote to that Question.
Sir William Williams.] One Record of Oates's Conviction relates to Ireland, the Jesuit; we have all that Tryal, and Whitebread, all founded on Popery; do but deem the Judgment to be "cruel and illegal," it will do the Business.
Mr Hawles.] I like the Question relating to the Plot. I have as ill an Opinion of those that gave the Money as the Clergyman that swore. I move that you will declare the Verdict "corrupt."
Sir Robert Cotton, of Cambridgeshire.] I am for the Question to go single, "illegal;" as it concerns every particular person, should you clog it with the "Corruption," People will think it arises from Corruption, and not from the nature of the thing.
Sir William Williams.] The affirming of the Judgment by the Lords is the main Judgment; if you reverse only that in the King's-Bench, we have not our end
Mr Garroway.] If ever we obtain this Bill, you have your end; therefore avoid all words that may gain a dispute betwixt the Lords and us.
Sir Thomas Lee.] The Judgment against Johnson was but a bare Misdemeanor for a Libel; therefore take that within your Bill.
Sir William Williams.] Pass a Vote upon that Judgment only, for in that you may go in the ordinary way, and I believe the Lords will reverse it.
The Speaker.] That against Johnson is but barely Information for Misdemeanor. As for the degrading, that is no part of the Record.
Sir Thomas Lee.] I observe one thing, in the reversal by the Lords. I would have the Business of the Ship-Money looked into. They did not leave that Judgment; and to that particular Judgment the thing was at an end; but they did it by a Bill. 'Tis not your part, as the Commons of England, to bring a Writ of Error, Pray let one Bill serve for all.
Sir William Williams.] I would not have recourse to the last remedy, but in the last case: I would not do it by Bill. In the case of Lord Holles and Valentine, the Judgment was against the Privilege of the House. The Record was read in the House, and voted "an illegal and a pernicious Judgment," given in 5 Charles. It was voted 1667 (fn. 6). 'Twas a long time before that Judgment was taken notice of; and, at a Conference, the Commons brought the Vote to the Lords, and they agreed the Judgment "illegal and pernicious;" and voided the Judgment.
Sir Thomas Lee.] I am not willing to run into controversy with the Lords unnecessarily. I remember that Judgment in Lord Holles's Case delivered at a Conference (fn. 6). I have observed, that, in several things, the Long Parliament made Votes, and no more, and did not know the consequence. At the Conference, the Commons carried up the Vote; and when the Lords agreed it, they began to reflect, "We have let the Commons into Judicature;" therefore they put Lord Holles upon reversing it, by Writ of Error, thereby never to let the Commons into Judicature.
Resolved, That Bills be brought in to reverse the Judgments against Mr Oates and Mr Johnson, as cruel and illegal.