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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Wednesday, June 12.
On the Heads for the Bill of Indemnity.
Col. Birch.] I did most heartily bless God, that the Parliaments did what they did, in the last Parliament; if they had done no more than what they did in relation to the Test, and Popish Plot, we should honour them. As to the Popish Plot, do what you will, but pray meddle not with Parliaments: If any ill things were said in that Parliament, let them go, and thank God things were no worse.
Sir Thomas Clarges.] I am sorry you are diverted from the business of this day, upon account of that Parliament. There was a great deal done there for the Protestant Religion; but the great fault of that Parliament was, that it was filled with people depending upon the Court. I cannot say there were Pensions then; that was the great fault of the Long Parliament: I hope we shall see no more such. There was an Address to the King, in that Parliament, about the Test; a worthy Gentleman (Mr Finch) was thrown out of his Place about it: But if the Question be, what things were spoken in that Parliament, (though there were things ill enough) Parliaments may have great discouragements for the future. I hope those who did amiss then, have repented; and pray put no discouragements upon people for what they have said in Parliament.
Serjeant Maynard.] No account is to be given out of the House, for what is done there; the account is only to be given here, else you shut up all our mouths; and I move you to put this off from your hands.
Sir Robert Howard.] 'Tis not at all the Question, what was said in King James's Parliament, but what was done worth taking notice of against the Protestant Religion. One thought it worth their pains to turn over the Journals of the Exclusion-Parliaments; another, spirited with Claret, seconds the Motion. I shall never forget a worthy Member (Clarges) holding two Speeches of King James in his hand, and declaring them contradictory to one another. I shall ever honour him for it. We are ordering a Committee to inspect the Journals relating to the Plot, in order to the matter yesterday relating to Oates; which I think very fit to be done.
Mr Sacheverell.] As for the proceedings of that Parliament of King James, nobody will justify it in many respects. I would have a retrospect, in the Indemnity, of raising Money against the Law; but if this should rake into a great number of persons, I am against it: But if there be one or two of them now about the King, I have no such kindness for my brother, if he stands before me in this matter; but persons that may be of use, I would be tender of; but if he give a jealousy to the Nation, I would part with him, though he was my brother. Pray let nothing put an insecurity upon England's interest.
Mr Howe.] To explain my Motion about Inspection into the last Parliament, they who thought the word "Protestant" not fit to be in an Address to King James, and to leave out the word "Popery," are not fit to sit here; and I would take some notice of it. (He meant Mr Bickerstaff.)
Sir John Trevor.] I desire the Journals of that Parliament may be inspected. Care was taken, both at the Committee, and in the House, then; and you will find the Report was never then made relating to the Popish Plot; but, in relation to the Inspection, the direction was only for "that part of the Journal relating to the Bill of Exclusion, to be expunged."
Mr Godolphin.] I had the honour to be of that Parliament so reflected upon. I was out of England when I was chosen. I cannot justify all that Parliament did; but as for what is said, of their giving what was asked, it did neither give Land-Tax, Poll, nor Subsidy; but that Parliament was for the Protestant Religion, and suppressed two Rebellions in England and Scotland: I wish other Parliaments may do as well. I would not have Enquiry made into mens actions in Parliament, lest afterParliaments may do the same by you.
Sir William Williams.] For that very reason, I would look into what they did amiss. One Parliament may question another; but to offer it as an argument, "because others are questioned, we may be," 'tis an argument of our sincerity. Let this, and all Parliaments, be questioned.
Mr Howe.] As to what Godolphin reproaches us of " Taxes and Poll," I hope we shall never attaint men, and seize their Estates, without Evidence.
The Debate went off, and the King's Letter was read relating to the Indemnity, [dated Jan. 22, 1688.]
Sir Robert Cotton, of Cambridgeshire.] The Advice the King has given in his Letter may contribute to the forwarding the business of the Indemnity, and satisfaction of the Nation. Nothing will more settle the Nation, than a quiet peaceable spirit amongst ourselves; and as the King has expressed great kindness to his Subjects, so I hope we shall proceed with that temper as may quiet the Nation, by as much moderation and unity, in naming the persons to be excepted, as possibly the nature of the thing may bear.
Mr Howe.] Pray lay a foundation: No man that has a falling house will live in it with props. For want of a foundation, a new building can never be strong. As to the King's Letter about the Indemnity, I wish it may be so for ever; but, as I wish to God we may forget what is past, so likewise that we may punish those who endeavoured to destroy our Liberty and Religion. Some, in the worst of times, did die Martyrs for it. As I would forget, so I would not confirm, all the ill things in time past. I would have as few excepted out of the Indemnity, as may be pardoned, as any man; but I would not give encouragement to exercise the same thing on to posterity. The Guilty are in haste to be forgiven, and the Innocent fear a return of the same ill things. I hope we shall have a temper in what we do.
The Record of Sir Edward Hales's Case (fn. 1) was read.
Sir John Guise.] If you intend to except any persons out of the Indemnity, you have now an occasion. We hear who the Judges were that gave their opinions in this case. I hear Jones and Wythens were so; pray make them Examples.
Mr Howe.] You are going upon a Company of Judges, like the East India Company; they were the instruments, but those who put them upon it, and advised, are rather to be excepted; but if you name a Committee to bring in the names of the Counsellors, then you may chuse whom you will make Examples of, and distinguish them from honest men. Those who built theirs upon our misfortune, go about still in the World, and make speeches in vindication of what was done. I hope we shall proceed so as no man may have reason to blame us.
Marquess of Winchester.] The Prince's Declaration turns all upon evil Counsellors: I hope they are gone away with King James; but if they still remain here, those are the persons you aim at, who sat with King James from the first to the last. I move for a Committee to inspect who those were, and then you will see whom to except.
Mr Hawles.] I wish you had gone on in order of time. This is the last, though first read. I think the Judges, and that Attorney and Sollicitor (I know not who they were) I think they ought to be under one head, and Sir Edward Hales another.
Sir Thomas Lee.] I have sometimes sat here when miscarriages have been spoken of, and have heard an ingenious Gentleman say, " Take them not as a whole faggot, but stick by stick, and you may break them." Take them man by man, and you may come to your end.
Mr Hawles.] Let the Committee enquire into the Proceedings of Lord Chief Justice Herbert, and Justice Wythens, and you may know all.
Mr Howe.] Before you take out a stick, lay all the faggot before you. Let us know all the Criminals, and then except whom you please. I move for a Committee to bring in the names of them all.
The Speaker.] That of Sir Edward Hales was a fictitious Plea.
Mr Hawles.] You will find it was a real Plea: Send for the Clerks of that Court, and they will inform you, that Hales was at 60l. charge in the Suit.
Mr Foley.] I cannot see how we can proceed, unless by a Committee. Other Judges are more criminal about the Dispensing Power, than those named. Where a Judge's opinion was for dispensing with one man, he is not so great a Criminal as those who gave their opinions for dispensing with all. Till that be reported, you cannot give an opinion.
Sir William Williams.] I doubt we are going into a wood. You have received the Record of Hales and Godden; the Committee must know the matter by Record, or Witnesses. It was Easter Term, 2 James. Go into the Courts, and you will see who were Judges that Term. If I was a Judge, I would confess the thing immediately. Why should things be concealed? It looks as if we were afraid; as if all were infected.. All know that Herbert was the first, Wythens the second, Holloway the third, and Wright the fourth. Having said this, pray take my memory as you will take other Gentlemens. As for the Common Pleas, (I think Benefield is dead) Streete spoke against it, for his reputation, the only man—(Milton and Alibone are dead)—Lord Chief Baron Montagu left his place upon it; Barons Atkins and Jenner were for it: I speak only on my memory. Certainly, when that accursed Judgment was given, those who concurred with the rest are most to blame. Herbert spoke his own judgment, prompted by the rest. No man can alter his judgment without design. A man that had this byass, and found the rest of the Judges inclined, was confirmed in his opinion. I take them to be equally culpable—Herbert is abroad, and not here to excuse himself. The rest are dead, and have answered it in another place.
Mr Hampden.] Let a Committee be appointed to enquire into those concerned, in every Head, and then report it, and you may be then ready to go on with the names of the persons. My chief reason is, I would not have you go upon persons without good proof; not upon general fame; else, instead of doing justice in Parliament, you will expose their reputation.
Sir Joseph Tredenham.] This Enquiry implies, that the person so excepted out of the Indemnity shall not have the mercy of this House, nor of the whole Kingdom. Every Gentleman, before he gives his resolution, will satisfy himself in the matter of fact; and any man is capable of seeing the Record. As to Sir Edward Hales's case of Dispensation, books have been published, and I shall say the less of that; most Gentlemen, I presume, being satisfied. Herbert has written his own Justification, and it has with me some weight. As to the general Declaration, I could never find any thing in my reading to justify it, it pulling all up by the roots, and the Law of no force; nothing like it but the Case in Charles II. Whoever will follow such a Precedent, so justly decried by all people, deserves to be punished. Where there is just cause, you may proceed to Exception, and let Justice go with Mercy.
Sir Robert Howard.] I suppose you will go farther than the four Judges; to the Advisers and Promoters of the Judgments. But how will you be informed, and bring persons to do it? The only way to do it is to name the persons visible, and who are matter of Record; without a Committee, it is impossible to have names. Therefore I move, that you will go upon the several Heads, and those to be referred to a Committee, to name persons in relation to those Heads. When these are all before you, the Names may be put to the Heads, and you may proceed upon them.
Sir Thomas Lee.] I would understand what it is you are about; whether an Act of Indemnity, or Pains and Penalties? I conceive you are not going by Impeachments, and I suppose you are not setting up an Enquiry, who was of this opinion, or who that; if so you must go all England over. No man can miss the Name of a man, if he please, they have been so notorious. These Heads lead you to every man you will except, and these are obvious.
Mr Brewer.] Whoever the Judges were, they are great Criminals; but I would have the Offence certain. I dare say, no Judgment was ever given in the Declaration, but you may know who were Judges in the King's-Bench then.
Mr Howe.] I suppose it is not designed that you should except all those Names, and we do it at Committees. We have begun this Head, though one of the last of Grievances—But I would have them distinguished from mankind. I would know those who broke the hedges, and let in the cattle; and then see who you will except, and who you will forget.
Sir Robert Cotton, of Cambridgeshire.] I am against a Committee: I think it will alarm the whole Nation. I think the former Indemnity did quiet the Nation, and I hope this will. I think there needs no Committee to inform you who the Judges were, who the Lord-Lieutenants, and who concerned in Corporations; persons so notorious, and so well known, that the whole Nation can distinguish them; therefore I am against a Committee, &c.
Sir Robert Howard.] I do not apprehend the danger of a Committee. I wonder at this doctrine, "that a Committee should alarm the Nation." Is it not an Alarm to the Nation to have a Dispensing Power, and Judgments against Corporations? I wonder this should go so high (as is said) to "alarm the Nation." No such Offences were known before; such Powers were never known before: The very roots of Parliament destroyed. I shall not be zealous in contending, whether you will have a Committee, or no, to enquire into Persons; but you must have a Committee to enquire into the Courts of Justice; and I move, that you will go upon Names; and I think it will be for the content of the People, and not to "alarm" them.
Mr Hawles.] I know not the custom heretofore, in Bills of this nature; but I see no inconvenience in a Committee. The Officers of the Court may give the same Information to a Committee as to the House. 'Tis the shorter way to examine it before a Committee, only to enquire into Officers and Judges. It may tend to expedite the matter.
Mr Ettrick.] I desire an end of this as much as any man. The Judges are going the Circuits, and the Jails are full: Your Act may come too late into the Country. To enquire into the Advisers and Assisters will take up a great deal of time. Those who were notoriously exemplary I would put a mark upon; and let the others go off without any mark, and clear.
Mr Sacheverell.] I have not known, but if Gentlemen are willing to relinquish a Question never put, but that it has been laid aside; and pray put no difficulty upon the House.
The Speaker.] I moved it; and Gentlemen said, "No, no."
Col. Birch.] If I knew the man, the mark you would shoot at, I could speak better. 'Tis a plain Question, " Whether you will refer it to a Committee, or no?" If to a Committee, then you are to give Instructions.
Mr Coningsby.] This Bill of Indemnity has been called "a walking Ghost;" and if you adjourn the Debate, it will always be a Shadow, and not regarded; therefore I am for going on.
The Question for a Committe passed in the Negative.
Sir Thomas Lee.] I hope one day more will bring an end to your Resolutions in this matter of Names. Sir Edward Hales has been named, and if I name a person with King James, I do nobody any harm. I name Lord Chief Justice Herbert (fn. 2) to be one excepted.
Mr Howe.] I am against naming Herbert; it was his opinion, and he was guilty of no other fault; he has modestly retired, and left our company. I would leave him out.
Ordered, That the Officers of the King's-Bench bring in who were the Judges in Sir Edward Hales's Case, &c.
Thursday, June 13.
On King James's Declaration.
Mr Hampden.] Before you read the Declaration, I would not have it pass for doctrine, that there is no Treason but what is declared by 25 Edw. III. If you take not that for granted, we shall never be safe, nor any Government, if you cannot declare Treason. There are other ways of destroying the Government than by raising Armies. But it would be strange if you should not call that Treason, which is tantamount to Treason. Read the Declaration, but let not that pass for doctrine.
Col. Birch.] I did expect this, and ten times more, when a Bill from the Lords lies by us about Treason. I desire one of those Declarations may be read, found upon the persons taken.
Sir Robert Clayton.] I found my Lord Mayor, at his house, examining those persons; and the people that took them took these Declarations upon them.
The Declaration was read.
Mr Garroway.] You have now some names of persons taken with these Declarations; and when you charge any by Bill, you may add these; and I hope it will strike such a terror upon others, that you will have the effect.
Sir Thomas Clarges.] You have but two Christian names. I am not of opinion to impeach men by other names than their Christian names; it may be reflection upon families of the same name, who are innocent. Order my Lord Mayor to send their Names and Examinations tomorrow.
Mr Hampden.] I think we are under some dispute, to vote before we know their Christian names. I would not have imputations upon persons of the same name. You may say, "Doctor Grey to be impeached, who spread such a Declaration;" and then to-morrow, when you please, send up an Impeachment to the Lords; you may pass such a Vote, and describe them.
Sir William Williams.] A person that draws his sword against the King, by description of the person; is committed. It may fall out that you cannot know his name; therefore you may commit him by description.
Serjeant Maynard.] I am against Impeachment of these persons, that they may be punished. These Papers are High Treason; an Impeachment may walk long, before it comes to issue. Prosecute them by way of Indictment, and then you may punish them severely and legally. Let the Judges lay it as a Charge upon the Attorney and Sollicitor-General, that they effectually prosecute them at Common-Law.
Mr Garroway.] You see many people abroad in the Nation, who refuse to own the Government. We cannot give too much assistance to support it. I desire this Prosecution may be by Impeachment, and not by Indictment, that the World may see you stand by your Government.
Sir Thomas Clarges.] I was of opinion, that Impeachment was the best way for your Justice. I am altered since, from what I have heard, viz. "That you should bear your Testimony of it." If you send to the Lords, to order the Attorney-General to prosecute, you may have speedy justice, the Term now in being, three or four days in Term-time; Indictments may be found by the Grand Jury, and you may have speedy Tryal, and speedy Execution. I am afraid that these things have gone all over the Nation, and I would have Prosecution at the Assizes all over the Nation. Whereas the danger is great, so the resentments should be quick, and the like Prosecution all England over.
Sir Robert Howard.] If any thing be done against the Government, I would bring in the old manner of Impeachments; nothing will settle your Government better.
Sir Henry Capel.] This is a point of safety, and that has led the House into this of Impeachment. As for sending to the Lords, to order the Attorney-General to prosecute these, have we not a King to command his Officers, and Judges to try them? For many Reasons offered, and many more that may be, I am for impeaching.
Sir William Williams.] If you proceed against him in the King's-Bench, he cannot be tried till next Term, (Michaelmas). If he be tried in London by a special Commission of Oyer and Terminer,—I like well Tryal in the King's-Bench, solemn in the face of the Kingdom; but if he be impeached in the name of all the Commons of England, it gives a dignity and honour to the King. If impeached by the Commons, it is not tied to this or that County; 'tis left indefinite, and not confined to the formalities of other Courts.
Sir Thomas Littleton.] The greatest consideration of all with me is, Whether the House of Commons dare take notice of this; and men may take farther encouragement, and say, "it seems the House of Commons dare not meddle, but put it to the inferior Courts;" therefore I am for Impeachment.
Serjeant Maynard.] I have as much zeal for the punishment of these men as any man here, and am grieved at the slowness of proceedings; but when you may do it by Law—This Act was done in London, in a Tavern in London—It may be, he cannot be tried in eight or ten days; but here is a clear offence: When you have brought it up to the Lords, the men are in their Judgment, not yours. One man tried and condemned at Common Law, will work more upon the People than ten Impeachments. If once you make that an Example, not to try without the Lords, I do not know the consequence. I come here with grief of heart, to be here five months, and do nothing at all of this nature. Therefore I would not go before the Lords, when the Law is clear, and may be tried by Juries.
Mr Hawles.] The Question is, Whether you will go by Impeachment, or Indictment? I am for Impeachment. I do not think this to be a plain Case of Treason, by 25 Edward III. I do say, no Court can judge this offence to be Treason; and that Statute did plainly not bind the superior Court of Parliament, but the inferior only. Look but over the Statute of 25 Edward III, and you will not find any words to reach this Declaration, &c. to be Treason. The proper way is, to judge this HighTreason; and therefore I am for proceeding by Impeachment.
Resolved, That the persons who dispersed the Declaration, viz. Dr Elliot, Capt. Vaughan, Sir Adam Blair, Capt. Mole, Dr Gray, &c. be impeached of High-Treason.
Mr Howe.] Several are now in town who stand charged upon former Impeachments. I think it fit that the House give their Opinion, "That all such persons withdraw themselves from Court." Out of my duty to my Country, I shall name them; if you please, that they may be secured.
Col. Mildmay.] For what they have done formerly, lest they should attempt the same again, and it be too late to remedy it, I desire you would remove them from the King and his Councils.
Mr Hawles.] It was the Opinion of Lord Chief Justice Hale, "That if the Government must be subverted, it must come from Westminster-Hall."—Fitzharris's Case, and Lord Russel's—Upon the business of the Charters, some went out, and others came in; but only when it came to the Dispensing Power, they could not swallow that. Whilst there are Lawyers, they will be tools to do as they are bidden. The Tryal of Fitzharris was one of the wickedest things, and that about Lord Russel's Jury you know, and the giving new Charters to have voted a Parliament after their mind. You have been well moved to know who were the Privy-Council at that time.
Sir William Williams.] 'Tis not the cards, nor the dice, they are but the tools; it is the hand that cheats you. I have gone post often, and have found a good horse under me, but he would go no farther than his stage. You ought to go to the Fountain, the great Council, in the Declaration, and they will betray one another: We must go to the visible Council; the Committee of Trade, the Cabinet-Council. The first thing done was the Tryal of Fitzharris, but they would not destroy the City-Charter then; the Post-horse failed them—He did afterwards destroy the Charter, and break that, but was not so profligate as to break all the Laws—Charge them, and they will accuse one another.
Mr Garroway.] I think, we are not going the right way. When the Judges shall be here, ask them any Question you think fit. I have seen Lord Chief Justice Keeling sent for hither, about calling Magna Charta, Megna Farta (fn. 3) —They will tell you who did it.
The Speaker.] Such as have been Judges you may send for by Warrant; but to such as are Attendants on the Lords you send only an Intimation, lest Exceptions should be taken by the Lords.
Mr Hampden, jun.] These Judges laid it down for doctrine, "That there was no Treason but against the person of the King; the King therefore might pardon him." But there is a Treason against the Realm, which the King cannot pardon; the King cannot be without a Realm. You have it in Parliament declared, "That an Impeachment continues from Parliament to Parliament:" Will you suffer the Popish Lords to go about under your Impeachment, and not be prosecuted? I move, that you will appoint a Committee, to enquire by whose Authority those Lords were delivered out of the Tower, illegally; and send to the Lords to commit them.
Sir Christopher Musgrave.] The Question is, for sending for the Judges. Garroway has put you in the way. For Method's sake, divide the Question; one by way of Order to appear, and the other by way of Desire to appear.
Mr Garroway.] One formerly informed against one of your Members (Sir Richard Temple) for being an undertaker to carry on a business with Lord Bristol. The House sent to Lord Bristol, by Mr Vaughan, to know whether his Lordship said any such words to the King. Lord Bristol prayed, "that he might come into the House to give an account of it, because he might speak his own words." He came, and gave others little satisfaction abroad, and us as little here; and I do not doubt but the Judges will give you the same satisfaction.
Mr Leveson Gower names, Mr Justice Dolben, Mr Justice Gregory, Mr Baron Neville, and Mr Justice Powell, to be sent for to come to the House.
Sir William Williams.] Sir Francis Pemberton, Sir Creswell Levens, Sir Thomas Jones, Mr Serjeant Montagu, Sir Francis Wythens, Sir Richard Holloway, to know who gave the Instructions to the Judges, &c.
Mr Howe.] I know not how to take notice of the Cabinet-Council, nor what it means; I know not whether it be a lawful Council; I know not whether it be a crime to be a Cabinet-Counsellor: But I would desire the King to deliver us from those that were Counsellors then, that we may be troubled with them no more.
[The above Judges, and others, were ordered, or desired, to attend the House to-morrow.]
Friday, June 14.
The Judges, &c. above-mentioned attended according to Order.
[Lord Chief Baron Atkins, Mr Justice Dolben, Mr Baron Neville, Mr Justice Powell, and Mr Justice Gregory, were severally called in.]
The Speaker.] My Lord Chief Baron, the occasion of the Intimation the House gave you of their desire, &c. is to be informed of some things. They would know, why, in Charles II's time, you were turned out of your Judge's place?
Lord Chief Baron Atkins (fn. 4).] I suppose there were several reasons. There was a great Cause depending betwixt Sir Samuel Barnardiston and Mr Soames. The Cause was of great expectation and consequence in the King's-Bench. Judgment was given for the Plaintiff, Barnardiston. After that, Soames brought a Writ of Error. Eight Judges argued, (there was a great appearance) and Ellis and myself argued to affirm the Judgment; others, to reverse it; which, I suppose, was not acceptable to some great persons then. There were other things objected against us. In the Circuit, I declared against Pensions to Parliament-men, and there was great complaint against me. I went the Oxford Circuit with Scroggs, where Scroggs called Bedlow "a perjured person." I told him, "he had passed Judgment upon his Evidence."—— There was a Petition from my Lord Mayor, &c. for the sitting of Parliament, I was willing to avoid all occasion of discoursing with Seroggs. He said, "That Petition was High-Treason." At last, I affirmed, "That the People might petition the King; so that it was done without tumult, it was lawful;" and of this he sent word to the Court. But what filled up the measure was about the King's Power, "Whether he might not prevent printing and publishing, &c. by Proclamation." I said, "It was most proper for a Parliament—If the King would do the work of a Parliament, we were like to be without a Parliament." I said, "In case the People do represent things by false news, they may be met with, and punished." I advised against the opinion. There was another lay heavy upon me (Lord Chief Justice North) and it was about selling Offices. I found they were discontented at me, and I impute it to the two Chief Justices. He withdrew.
Mr Garroway.] I would not ravel now into the Business of Pensions; that may be hereafter; but I would principally drive at the discovery of those who advised the Dispensing Power. This, he has told you, was as to other cases.
Mr Howe.] All these Pensions were for the advantage and interest of France; if they had not been supported by France, they could never have brought us to this. It was the beginning of our woes; and now especially, when we have a War with France, I would have those who corresponded with France excepted.
Sir John Lowther.] Such a Question is irregular; "the Dispensing with the Laws" is the proper Question.
Mr Hawles.] We are not tied up to one Head, to enquire of a Witness. The Lord Chief Baron can give you no account of the Dispensing Power; he was turned out ong before that came in question. 'Tis proper to ask him any Question before you.
He was called in again.
The Speaker.] The matter of the Petitions was objected against your Lordship. The House would know who said it to you?
Lord Chief Baron Atkins.] I did drop that word to give you occasion for your Question. Lord Clifford took occasion to tell me what favour the King had conferred upon me; "that I had attended diligently in Parliament, and was taken from my Profession, therefore the King had thought fit to send me 500l. "I replied, "I thank you; I will not accept any thing for my attendance in Parliament." Sir Stephen Fox asked me, "why I would not send for my Money? I have a good Sum lies by me for you." I did take occasion, upon this, to advise my Countrymen, "that those who took Pensions were not fit to be sent up to Parliament again;" and I never went farther in it than I have told you.
Mr Fox (fn. 5).] I find a reflection upon Sir Stephen Fox. I would know what time this was?
Mr Smith.] I think there is no reflection upon Sir Stephen Fox. I remember there were Members sent for Sir Stephen Fox's Books, to know who had Pensions (fn. 6). He was so ingenuous as to tell you upon his Memory who they were, and there is no need to send for him.
The Speaker.] Mr Justice Dolben, the House has sent for you to enquire why you was discharged so suddenly from your place in the King's-Bench.
Mr Justice Dolben.] 'Tis now seven years since, and I cannot certainly tell; but I think it was for giving my Judgment for the King in the Quo Warranto brought against the City of London. Several came to me, I know not from whom sent, or whether they came out of curiosity to discourse with me, as I thought, about the Quo Warranto, &c. I must confess, one came to me (he was my friend) I think he said, Mr Secretary Jenkinson was the occasion of his coming; he asked my opinion about it. He found me at my House at Hampsted; my Papers were before me considering the Case. He told me, "it was far from him to persuade me, but, whatever comes of it, to follow my Conscience. If you are for the King, you must stay in. If not, you must be turned out." I gave my Opinion, and was discharged the next day. The Docket was sealed on Friday, and I was discharged the Tuesday after.
Sir William Williams.] 'Tis a common thing, not to come to a man to corrupt him plainly, but to bid him use a Conscience. I am not afraid of the dead, but of the living; I am afraid of those alive. When that man is named, I shall know how near the King he was, and what Office and Place he bore in the Ministry.
Mr Garroway.] I would not have you go farther than what he declared to you, but you see plainly a practice upon them that would not do their Business.
Sir Robert Howard.] I am against asking him any more Questions. I see we shall find none but dead men. I wish they would tell us no more stories of the dead: I see they must bear all.
The Speaker.] Mr Baron Neville, the House would know how you were placed in the Exchequer, and how you came to be discharged?
Mr Baron Neville.] I shall acquaint you with what I think was the reason. I was sent for by King James to Whitehall the last Michaelmas Term. I attended at Mr Chiffins's Chambers. After I stayed a while, King James came to me for my Opinion in some Points, in a Paper he had in his hand; it was about the Dispensing Power of the Penal Laws. I said, "I doubted his Majesty could not dispense with those Laws; but I could not give my Opinion suddenly; upon reading the Paper I would consider farther." A little while after, Chancellor Jeffreys was sent by the King to know my Opinion. I said, "I gave the King my sudden thoughts, but I would farther consider of it." A week after, when I had considered more of it, I waited again, &c. and gave my positive Opinion, "that the King could not dispense, &c." I sat quiet after this, for some time; and before the Circuit I was sent for to the same Place; where was Mr Justice Streete. He was the senior Judge; he gave his Opinion, and I mine. The Chancellor made a long Discourse, and disapproved our Reasons, as the King had done. So I was dismissed, and my Commission not sealed till two days before the Circuit. I took my leave of the King, and had my Direction after the usual manner—I went with Mr Justice Holloway, where were the King, the Chancellor, Lords Sunderland, Rochester, and Godolphin. The King asked Opinions: Holloway gave the same Opinion with me. The Chancellor disapproved the Opinion—I was dismissed again. Monday before the Term, I was sent for to the Chancellor's House, who told me, "If I persisted in my Opinion, I must expect to be discharged." I said, "I must persist, for I had no reason to alter it, and would submit to the King's Pleasure." About seven or eight days after, I had my Quietus; and was told, that Mr Harris brought it.
Mr Smith.] You have had a fair Account from this Gentleman. I would have one Question asked him, "Whether any body else was with the King the first time?"
Mr Howe.] I desire you would ask him, "Who more were there the first time, and whether they concerned themselves in this matter?"
Mr Foley.] I desire that he and all the others may be asked, "Whether the King did not ask him, whether he might grant out Commissions of Martial Law, or raise Money without Parliament?"
The Speaker.] Was any other Question asked you than that of the Dispensing Power?
Mr Baron Neville.] There were more Questions asked, but all tending to the Test-Act. There was no signing at all of a Paper proffered me to sign, and I know not who drew it. I read it, and returned it. The first time I came, there was no body but the King himself. The second time there was the Chancellor, &c. (as before) If the Lords then present said any thing, they discoursed with one another The Chancellor managed the whole thing.
The Speaker then addressed himself to Mr Justice Powell, as before.
Mr Justice Powell.] I was turned out suddenly. I know not perfectly, the reason, but I suppose it was about my Opinion of the Dispensing Power. Another, I suppose, was upon giving my Judgment about several Quo Warranto's, where the Borough chose Members of Parliament by Prescription; but I know not certainly. I remember not any Person that discoursed with me. I was sent for to the King, (as before) I asked the Messenger, who else was sent for? He told me "Several others of the King's-Bench."— The King said, "he hoped all the Judges would be of the same Opinion. (A Quo Warranto was brought especially against Marlborough) I happened to be of a contrary Opinion, and that I take to be the Occasion of sending for me. There was Lord Chief Justice Wright, Alibone, Holloway, and myself, there. My Opinion at the King's Bench was not pleasant—And, I guess, these were the reasons why I was removed. I cannot recollect any time I was sent to before. There were present Chancellor Jeffreys, the Attorney-General Powis, the Sollicitor-General Williams, and Sir Samuel Astrey. I think no Lord was present but Jeffreys. The late King spoke to induce the Opinion. The Chancellor enlarged upon it, and after he had commented upon it, some ordinary matters were discoursed. I remember nothing relating to the Law—A quarter of a year before, I was sent for by the Chancellor to take my Opinion, whether a Borough, for a Misdemeanor, did not forfeit their Right of Election of Parliament-men? And whether such as had no residence in the Borough, and were foreign Burgesses, had Right of Election? The Chancellor would know the Judges Opinion. I delivered my Opinion, "That there was no such Power in Westminster-Hall to question any such thing. I thought that Power was only in the Honourable House of Commons." At which the King seemed satisfied. When I came home, I searched my Books, and some Authorities. Justice Lutwich was abroad then, but did seem to be of the same Opinion, "That it was not proper for Westminister-Hall."—I conceived that the Misdemeanors of Corporations, &c. were pardoned by the Act of Indemnity. I cannot call to mind that I had discourse with any man, but the late Chief Justice, who asked me, what my Opinion was? I answered, "When the matter came before me, I should give it on the Bench." The first news I heard of my discharge was from my Lord Chancellor, who (at his House) very kindly told me, "He was sorry for it, but would not send my Patent of Revocation till the last day of the Term." And I sat out the whole Term.
Mr Justice Gregory.] I did continue Baron of the Exchequer till Michaelmas Term, 1685. The King came with a Paper in his Hand (as before) &c. I gave my Opinion against the Dispensing Power.
Sir Thomas Jones.] I was removed for my Opinion of the Dispensing Power, &c.
Sir Francis Pemberton.] I was removed out of my place, without visible Reason, the first time; neither do I know the reason of my being removed from the King's-Bench to the Common Pleas. I was never sent for to Whitehall, nor to my Lord Chancellor's. I was willing to remove. The night before, my Lord said nothing to me, but the next morning I had a Supersedeas.
Mr Serjeant Montagu.] I was removed for giving my Opinion against the Dispensing Power, &c. (as before.)
Mr Serjeant Levens.] I thought my discharge was because I would not give Judgment upon the Soldier who deserted his Colours, and for being against the Dispensing Power.
Mr Serjeant Wythens.] I suppose the reason of my discharge was for refusing to give sentence on the Soldier (as before.)
Mr Serjeant Holloway.] I suppose my removal to be because I did declare "That the Bishops Petition was not a seditious Libel;" and "that the Dispensation was illegal."
Sir Thomas Littleton.] Having heard all this from the Judges, I desire we may not rise without some Opinion of the whole of this strange dealing.
Mr Garroway.] That will not do your work. Jones told you, &c. "he must give his Opinion; the King must have all the Judges of a mind." When the whole thing is before you, then you will see who came in their places that were turned out, and make use of their Evidence to punish the rest who were of another Opinion.
Col. Birch.] This will be odd to Posterity, if it appear not upon your Books for what you sent for these Persons. I would know who were of the Council at dissolving the Oxford Parliament, (and who of the Cabinet, if possible) when Papers were to have been put into Protestant Pockets, to have them knocked on the Head. I would have them particularly examined, what they know of the Declaration that was pinned at our Backs after the Oxford Parliament.
Sir John Lowther.] What a multitude of Persons will this of delivering up Charters involve the Nation in! We have now a War with France, and King James is in Ireland. I wish you would forbear this, or adjourn it, till the House be in better Temper. If the Clerks of the Council give you imperfect Answers, you will alarm those who are under the shelter of the Government, when they expect an Indemnity. I therefore move you to adjourn the Debate.