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 15.
On the Subsidy Bill.
On the Proviso of double Penalty for refusing Payment of the Subsidy.
Mr Hampden, said.] This of refusing Payment must be disowning the Government; which is Treason. It looks like a pleasant saying on another occasion, "Either fine him half a crown, or hang him." If a man be punished by fine for Non-Payment, and by consequence, not owning the Government, he cannot be prosecuted (I believe) by Indictment for disowning the Government upon this offence. Therefore I think it much better to throw out the Clause.
On the Heads for the Bill of Indemnity.
Mr Ettrick.] The House seems inclinable for their Convenience to go into the Country. It has been proposed, for method, to go upon Heads, and to name Persons obvious and notorious, on several Heads. You have been told "that it is necessary to go to the Fountain and Spring head." In Charles II's time we were afraid of a Popish Successor; that was the Spring; and lately we have had a Popish King. You have now a Protestant King, and I hope will destroy Popery and Rome. The prospect of the Duke of York to be King put men upon a compliance with arbitrary Government, and to close with Popery. That now ceases, and so I hope we need not go about to remove Counsellors, Pensioners, and Officers—I thank God, there is no danger of the French King's Influence; he has his hands full. Ireland and Scotland are not yet reduced—Under these Considerations it is necessary that we unite all here, I hope, against the public Enemy, the Papist; but I hear no talk of them, they wipe their Mouths. But then, as Solomon says, it is wisdom to pass by an Offence. Persons that have made an atonement by their present services, I hope you will bury all in Oblivion. The Chancellor was the Tool of Popery. I hear no mention made of Lord Sunderland, though it be Treason to reconcile to the Romish Church (fn. 1); and hearing nothing of Popery, I remind you of it only to look upon the great Instrument of introducing Popery and arbitrary Government.
Sir Robert Cotton.] What does seem visible to us is the Judgment in the King's-Bench in Sir Edward Hales's Case. I would put the Question upon these Judges. I think no way so proper.
Sir John Lowther.] You are hardly ripe for that Question yet; that Judgment has two parts; one was Ecclesiastical, in the Case of the Bishops; the other Civil, in Sir Edward Hales's Case. If you please, let all the Judges be named, and you will be ripe for that matter.
Mr Machell.] That is beginning at the wrong end: Shall we let the Chancellor go off? Pray begin with him.
Mr Hawles.] If a man were beyond sea, there is a Proclamation to render himself by a Day. 'Tis an irregular thing to say, that man that is dead should be excepted, when you may bring an Attainder against him.
Serjeant Wogan.] You may exempt him, as you did Persons in the former Act of Indemnity. He has a Son and a Lady left, and there are Settlements upon them. For the Man I cannot say any thing, but you may except him as formerly.
Mr Sacheverell.] I see, some Gentlemen in the House think nothing can be excepted, but what is at this Time; but they may be in your Bill, and what Exceptions else you please. I stand up, not out of respect to Jeffreys. Never let a Minister of State leave to Posterity what he has raised by his Iniquity—It should be always to the use and benefit of the Public, and his Family be never the better for it; and when you come to the Indemnity, I shall move you to appropriate their Estates to the Public. He that will venture upon the Life of his Sovereign (which is the case)—If not, you will never discourage a man from being a rogue to his Country. Let this, therefore, alone to the Bill of Attainder, and let it be forseited to the Public. I cannot let a man go away with an Estate he has got with ruin to England.
Sir William Williams.] That was a wise Law of Henry VIII, to forfeit Estates for Treason; before that Law, Estates were not forfeitable. By the Provision of that Statute, the Children were to lose their Estate for the Iniquity of their Parents.
Mr Hawles.] Now we are in the right way. 'Tis reasonable to declare that those men that have got Honour by doing ill may be degraded. I would have them refund what they have got by the Charters of Corporations. I believe, if you will go this way, you will do right to the Public. Those whom they have despoiled ought first to be restored. I would go first upon Persons living, for I believe they have done us most Injury.
Mr Howe.] If you go about to degrade those who have new Honour, I know not how you will come by them; some have great Estates and Titles, and nobody knows, why. And Bishops, nobody knows how they came to be so, or how they deserved it. Let us not, like Falstaff, fight with dead men—Let us punish the living; the dead will stay for us.
Mr Harbord.] I have heard it said, that Punishment is much better than Laws, of which we have enough. Here are Papists now in Town; they will not stir. 'Tis said by some, 'tis because of foreign Alliances; but we must think of home dangers, else they will affront you to your face. As for the Judges, it is said eleven consented—For present Example, confine them to a little Number. The head Justice was hanged at Tyburn in Richard II's time. I wonder not they are so ill Men, for no others would serve them. I move that two of them may be hanged at Westminster-Hall Gate.
Mr Brewer.] I believe, it is not for the Honour of the House to proceed upon the Judges. Have you any Witnesses out of the King's-Bench, or any thing under their Hands, any Judgment in Westminster-Hall? Common Fame is a good Interpreter, but no good Judge—I would proceed upon the Judges who gave Judgment in the Dispensing Power.
Serjeant Wogan.] I was with that Judge (Holloway) who is said to have come over to the Opinion of the rest, on the Dispensing Power, He declared against it, and was going to print his Vindication, and denied that he gave any such Opinion. I have known him these twenty-five years. I dissuaded him from printing, &c. for it would be looked upon as a Libel, and he and his Family be undone. But he declared he would take the first Opportunity to do it, and immediately he did at the Tryal of the Bishops. I do not know that he was ever of that Opinion, but there were ten of the Judges of that Opinion.
Sir Thomas Littleton.] I would be tender in reflecting upon any man, but that Judge sat two years and a half under that Imputation of Opinion. Powell delivered his Opinion for him, and to this day he never acknowleged it. He will take the Sacrament upon it, that he never gave his Opinion for it; he hath solemnly declared that he had his Quietus upon it, and offers it still. Streete, who gave his Opinion, did declare that Holloway had wrong done him.
Mr Hawles.] When a Judge of a Court delivers an Opinion of a Judge absent, the next time he sits, if he does not disown it, he confirms the Report. It is an usual thing to deliver an absent Judge's Opinion, but very improper. I have known when a Judge has been misrepresented in his Judgment, he has denied it in Court.
Sir William Williams.] Here was the Case. The Opinion was delivered in the King's-Bench. Powell was not a Judge of that Court, but of the Common-Pleas. He had no Opportunity then to contradict this, but did it at his first Opportunity.
Sir John Lowther.] I am very indifferent whether this be true or false, but what I look into is, who were most notorious, those who gave the Opinion in the King's-Bench, and then sat in the Ecclesiastical Court, or those Bishops who sat—and all concerned in Magdalen College. You must exempt the most notorious out of the Indemnity, who persevered to the last.
Mr Ettrick.] Powell was not then a Justice of the King'sBench. The Question is, whether he was there, and whether he gave any Opinion. They were at Lord Chief Justice Herbert's Chamber, and Powell said, "It was a new thing, and he could not suddenly give his Judgment"—They would give Judgment on Monday, [and not] upon surprize. Holloway resolved to vindicate himself in print, but as soon as he was removed into the King's-Bench, and had an opportunity, he gave his Judgment; and Wright said, "You always, Brother, have been of that Opinion." Powell is a man of too much learning and honesty to be of that Opinion.
Sir Thomas Littleton.] I would know why, to this day, he would never say to his Brother Holloway, he had done him wrong.
Sir Robert Howard.] I think we are not at all travelling towards the Indemnity. We are told hearsays of Powell and Holloway. Pray put the Question upon those who gave the Opinion in Sir Edward Hales's Case. I cannot but be a little surprized when the use was for the King to dispense these Laws, and by consequence all Laws; and that in the Case of the Bishops they should bind—I hope these extrajudiciary Opinions may be condemned. The fault was, saying what Opinion they were of. If Holloway had been a Judge for Life, possibly he would not have been of that Opinion. I hope this may be prevented for the future.
Mr Howe.] Which is the greater Crime; they that went a fishing for a Knave to do it, or the poor Knave that did it? Was there no property in England till Magdalen College? Nor any Liberty till the Bishops were sent to the Tower? It will be impossible to find them out—Rather adjourn the Debate, or give a general Act of Oblivion to all, for the greatest part of England were criminal.
Mr Hawles.] I have heard that Judges Patents were formerly, Quamdiu se bene gesserint, and if you do not punish the Bene placito Men, you will confirm those of Quamdiu, &c. to do as those before them. The last Grievance was that of Magdalen College, and those turned out got by it. If I were to begin, I would at the first Head; that is, the Oxford Parliament. We know that Sir Edward Hales's Case was a moot, a feigned Case. Wright is dead, and Herbert fled; some were frighted, and some cared not what they did a rush; but the Attorney-General and Sollicitor-General are Men of Estates; let us know who was the Attorney and Sollicitor-General then; let us know at that time who passed that Patent, and then you have a Criminal before you.
Sir Joseph Tredenham.] When you will exercise your Justice, I would not do it till the greatest Criminals are named. You have been told of taking away Charters of Corporations; consider what a great Number will be involved on that Head, and how safe the Government will be when so many are unsafe under it. The Regulators, which happened after the surrenders, that comes under that Head. When offences come to be general, there is no way but to cover them all by a general Act of Parliament; for these Reasons, when you look into the Revolution, all sorts of Persons have contributed to it; and People will rather upon severity cover past faults with greater, than be reformed.
Sir John Lowther.] In conversation, through frailty we both give and take Offence. No man here but may have his revenges, and some upon me: I am willing to forgive, I desire to be forgiven by all the World. We have got the Government settled: I would punish for the future, and pardon all that is past.
Mr Smith.] I should heartily concur to the Motion, if it would give content to the People. If we name not some Persons, we must allow their Offences. I speak for the Justice of the Nation. Those who have got Estates by our Misfortunes, will get into the Government, and you go about to qualify them for it. I must say, if you respect not the King's Declaration, nor the Justice of the Nation, I cannot agree.
Mr Hawles.] I never heard of a general Act of Indemnity. Will you except Robberies, Murders, and let these Men run away? If you go about to please those who have offended, you will anger twenty more that are injured; though I am not for Blood. Was not the Attainder of Cornish illegal, by the express Evidence of Rumsey, who was not there, when he swore he was? And the whole Tryal of Lord Russel was illegal, and as bad; and Col. Sidney's as bad as that. I have had no Injury done to me, nor any of my Relations have suffered; but if you do not Justice to them without doors, we shall not sit long here.
Mr Papillon.] I think you have read but one Head, and then, certainly, it is very improper to go upon a general Indemnity. I am not for revenge, but to vindicate the Nation. We are to vindicate the Protestant Religion. The Papists would turn all upon you, and you have an Opportunity to vindicate England. The Parliament has been abused, and Papers pinned at our Backs, upon a Dissolution; and now we are told, "you do nothing to vindicate yourselves by punishing some Offenders." When you come to particular Persons, let every man do what he pleases, but I see men justify what they have done. The Popish Plot was laid aside, and laid on the Protestants. Pray vindicate the Justice of the Nation.
Sir Robert Cotton.] If Crimes have been epidemical, and you cannot distinguish men, it may be of ill consequence. Those who acted in Westminster-Hall, were set on by greater Persons, and those are fitter for our Justice. Mercy becomes this House, and I never knew but Persons must be eminently distinguished, and you will find some have their Crimes alleviated, and so all are equally criminal; but if you cannot distinguish, and it is so general and epidemical, let us be impartial, and pardon all.
Mr Boscawen.] If you do not condemn others, you condemn yourselves, and take all upon yourselves. I have met with an Act of the Irish Parliament, on the other side the Water, that has attainted many. You ought to be careful, now the present Government is called in question. If you pardon before and after, what will the World say? The Papists will be confirmed in all they have done. If you make a general Sweep-stakes, you make all the World believe you are wrong.
Sir Robert Howard.] I have seen great Revolutions (at least seemingly) in Opinion, in this House. In your Vote some Persons were to be excepted by Name. I see some are inclined to a general Indemnity, and this is one Revolution of Opinion that has been here. As the nature of the thing stands, when I had seen an Act of Indemnity, I did suppose that the Ecclesiastical Commissioners, and those concerned in Charters, would have been named. If you would not have thought them Crimes, you would sure have put a Clause of Indemnity for yourselves, and you were punishable, if you had not thought that you had not done very well. When you have enumerated all Offences, to excuse yourselves, you must have excused yourselves.—And let all the World see they are not so great as you have believed them—I am sure our Judgments are shaken, and pray God send nothing else be shaken amongst the People! They may say, the good House of Commons have seen something too great, something too deep for them. Had this been said at first, it might have gone some way with me; but now you have gone thus far, and on the sudden changed your Minds. You have excepted a Lord that changed his Religion (Sunderland,) and went an Embassy to Rome (Castlemain) and all that Jeffreys has done. The time of the day wastes, and, it seems, our thoughts waste, therefore I would adjourn the Debate.
Sir Christopher Musgrave.] I think, by the Vote you have made, it does not hinder a general Indemnity. I think it for your service to pass that Act, as great a satisfaction as any thing that has been done since the settling the Crown. I would rather err in Mercy than on the other Hand.
Mr Sacheverell.] For my part, I wonder at this Debate, and more at Musgrave to put it so largely. I am as much inclinable to Mercy as any body; but as for the Judges that have so violated your Laws, what will that come to in time to come? What sit you here for? I cannot sit patiently at this. I am for equal Justice to all; but he that gives his Opinion that the Laws may be suspended, I give my Opinion against him. Are we to pass by all these, to be established in Corporations, and capacitating these Judges to do the same thing again, the same Crimes? The King has given his sanction—He is inclined to Mercy; but for Fines, I would never forgive them; I would not except one Judge, but as they have offended singly, as they merit, one by one. When the Law has been perverted, and Religion violated, I would never forgive them.
Sir Henry Goodrick.] I am unfortunate that it is my right to speak, and I cannot obtain your eye. I stand up only for the service of the House. When I considered the Motion, the Charity, the Safety, when I considered the Authority of so considerable a Person as Lowther, so far from the intention of the Inferences made, I ought to suspect no Person, much less that honourable Person. It was far from his intention to invade any thing by interfering— For these Crimes I wish Examples were made, and am so far from palliating them, that I would stamp a mark of your Indignation upon those who advised King James. I confess, I am for a general Pardon; it has a charm in it to me. All England hopes for it, or else farewell all safety of Liberty or Religion! I do intend nothing to be pardoned of Crimes since you sat. I here spoke of an Ambassador sent to Rome by King James; could Lowther, or I, be thought to justify that, or to pardon the Popish Party, who have been the first spring and motion of all this? The Jesuits set on the Papists, and I will go farther in this than your Heads. I am still for a general Pardon, but still for Protestants only. I go not about to pardon, nor justify, the Chancellor, who was worse than a Papist, that professed himself a Protestant. I beg, Persons may be excepted, but very few; the King has recommended it to you; follow his steps, in his Wisdom and Charity. There is not a spirit of Revenge in Protestants, like Papists. I move you for an Indemnity, with all ordinary Limitations, and extraordinary Limitations—Papists excepted.
Mr Hampden, jun.] I suppose this place gives Liberty of Speech; it is the Honour of the House, and the Liberty of the Nation. Will you lay aside all these Heads at once, and sit all this while, and say that nothing shall be done upon them? Is not this to seem light and unadvised? I have expressed my tenderness; I have suffered, yet I can forget and forgive as much as may be, for the safety of the Nation. Blood no mortal man can forgive; nobody but God can forgive; you only leave a latitude to judge whether it is wilful. I will wash my Hands of the innocent Blood that has been shed in the Nation. We take off Attainders from those that suffered by these ill men: Were they guilty or innocent? If guilty, you have done ill to pass it; if innocent, you cannot pass it by. If the Nation will take that Blood upon them—If I forgive this, God will not forgive me. The whole Nation was of Opinion, that the not punishing the Baseness of Ship-Money was the Occasion of the great Mischiefs that followed.
Mr Hawles.] The first Question was, Whether you will name Persons, and now I hear of a general Indemnity. When others break your Laws, they may hope for Indemnity for what they shall do for the future. I am not concerned with friendship, or anger, of any man, but I am not for crudelis clementia. Charles I had as learned Lawyers as ever sat, and yet they did as irregular things. For the Ship-Money, had those Judges been punished, they durst not now have done it. The Case of Magdalen College is but a trifle to what they have done in other things.
Sir John Lowther.] I hope nobody thinks I would excuse shedding innocent Blood; but I believe there is a sort of skill that, when a thing is not liked, it may be easily clogged with what was not intended. I would have the Exceptions read, and because iniquity grows with times and ages, I would have some added.
Sir Henry Capel.] I do not think that Lowther has any intention to countenance Blood, or the Destruction of Government; but a general Act of Indemnity surprizes me; and yet some Persons should be under Exceptions. For two or three Reigns have we not had warning that the Government would be destroyed in Westminster-Hall? We have had learned Judges and ignorant, and yet all have conspired our ruin. Punishment is hard, and I am tender, yet if the Government requires it, it is incumbent upon us. The Government is executive in the King, when we are gone; he is a good King, yet we may have one with corrupt Judges. Westminster-Hall has been the undoing of us all, and those two things must rest upon them. We are told, "the Jesuits have infused mischievous designs into the Papists;" but it has been our misfortune, that Protestants have joined hand in hand against us. Upon the whole, I would not adjourn the Debate; it is against the Honour of the House to do nothing before you rise. I would name them all four.
Sir Richard Temple.] The Question this morning was about these four Judges, but the Exception was but to two of them. If I can be instrumental to serve the House, I would willingly. You say in your Vote, "that some may be excepted from Pardon," but if you previously resolve how many for Life, or other Exception, this is your only Method, to what degree for Lives, or other disabilities of bearing office; propose some Resolution to limit this, so as not to give too much latitude, nor too great alarm.
Sir Thomas Lee.] You began with two of the Judges, and then you came to all; at last, to an universal proposition; but I suppose it was intended to all common crimes, as rapes, &c. usually excepted. But as to the universal offence of subverting the Government, the consequence is, number enough is security enough—All these Judges will become practisers, and their party will be their Clients, and so get more money than they did before. I have heard of Persons, who for being of the King's Counsel have lost Money by it. It would be a pretty sight for the Bishop of Durham [Lord Crewe] to come to his Diocese. When you have named a Person, the Law tells you his punishment. Here lies the difficulty with me, a necessity that so many Offenders should be at ease, and not necessary that a great many should be punished, though necessary that some should. If limited to four or five, say those are the Persons fit to be marked and punished. If it be a general Indemnity, with few to be excepted, 'tis the happiest Question that ever was put.
Sir John Lowther.] It has been moved with great caution. If you please to nominate a small Number to be excepted, it is a prudent, good, and honest Motion.
Sir Robert Howard.] Of all the Questions I have heard to-day, this last proposed is the strongest. It is impossible to lump this at a venture. So many for Blood; how if you take too many! If you judge a man for estate, you are bound up, and I find you would not involve it. The most indeterminable thing in the world! Judge the Man, and proportion his Crimes. I do not speak to chill the charity of any body. The proper Question is, Whether you will proceed upon the Judges of the King's-Bench? King James has abdicated the Crown, and if we lump them in, who have helped to lump him out, you say King William has done all the wrong, and they none.
Sir Charles Raleigh.] If this must pass off so, for God's sake let us send for King James again.
Exception was taken at Raleigh's words.
Sir John Lowther.] I cannot see how any such imputation can be upon what he has said.
Sir Thomas Lee.] You are right in order of explaining. I would not have words written down; it is a great injury to the Gentleman if written down. I hope the Gentleman will so explain himself, that it needs not.
Sir Charles Raleigh.] What I spoke was ironical only, if we proceed to punish the lesser, and let the greater pass.
Sir Robert Rich.] I never apprehended the Gentleman willing to bring in King James; but to pass by all Bloodshed and Violation of our Laws, is the way to bring in King James.
Sir Walter Yonge.] If you are sure there has been no innocent Blood shed, I would not concern myself. This may perhaps fall upon few, whether five or seven, I care not how few, but Blood has been spilt. I move for a general Question for Life; for some have been concerned out of the King's-Bench as well as there.
Sir John Thompson.] I would ask one Question, Is any man guilty of Blood? And will you exempt them? Will you think it honourable to stand upon your Book, that you except any man for Blood; but let that take the last place?
Sir Robert Rich.] I bear malice to no man; none of these offended me. The crime of Dispensing with the Laws is great. Nothing washes away Blood but Blood; but when you have restored Blood, I would have them excepted, as for Life; the rest not excepted for Life.
Mr Ettrick.] I see not that, by any Law, you can take away a Man's Life; for Blood, and for Murder, you will except that, but else I cannot give my consent to take away Life.
Sir Thomas Lee.] I would have the Long Robe declare, whether these Offences extend to any Man's Life. Therefore I lay the consideration when the Person you would except—If at the King's suit, he is answerable, the King may prosecute him, and he has not the Act of Indemnity to plead for him—If the Crime is not so, you need not put in that word of "Exception for Life."
Sir William Williams.] There were Judges who did act, by virtue of that Dispensation, as Judges. For those to sit and try men for their Lives, that were not Judges, I should make no difficulty in them. Wright and Alibone are dead. It is a case worthy consideration, when a man has no power, and ceases to be a Judge—Let that be your rule, as to this Exception.
Mr Hampden, sen.] I speak to your Question, not the Debate. I am sorry the Question is brought to this. I am not of Opinion only to leave them out of the Indemnity, and as to Westminster-Hall, if they have art and cunning enough, they may escape. This is a Crime the Law does not suppose, and if you cannot use the Legislative Power to punish such Offences, it is strange. Is it not Treason to subvert the Government as [well as] to clip a Shilling? What Government are we under? The Law is on their side then, and there is no remedy for these Offences; he must say Amen to what he is bidden to say is Law. If you say, so many shall be excepted out of the Act, and reserve yourselves for penalties afterwards, I agree.
Sir Henry Capel.] I think, what is said is of the last consequence. The Statute 25 Edward III names Treasons for Westminster-Hall to judge, and, at the same time, there is a declaratory Clause for the Parliament, in doubtful cases, to judge Treason. Are there not Offences that no denomination can be given to? To subvert the Government, and subvert Parliaments, by taking away the Charters of Corporations, is certainly the greatest of Treasons. I take it for granted, that such Offenders cannot be tried by the Laws, as they stand, and must they not be punished? I hope that sort of Doctrine will not be here. Such Treasons are to be punished by Parliament. I hope we shall never depart from that Doctrine. I will not.
Major Wildman.] I had not been called up now, if this Doctrine did not only pardon what is past, but endanger the Government for the future. 'Tis of dangerous consequence, when we took up arms, and we were involved in Blood—In an universal Act of Oblivion, we confess, that we were the Offenders, and needed it. This new Doctrine, of having these Offenders to Westminster-Hall, is as much as to say, they shall not be punished. These Offences cannot be punished unless the Parliament punish them. It was the custom of our Ancestors to bind the Judges to the Letter of the Law, and to declare nothing Treason, but what is specified, &c. and in a doubt to go to Parliament. Our Ancestors thought, by that Statute, that there were Treasons which could not be specified; therefore left it to Parliament to do it. When the ten Judges, and the King's Counsel, answered the Questions at Nottingham Castle, proposed them by Richard II, had they done any Offences against the Statute 25 Edward III? Nine of them said, they were under fear of their lives— But in the midst of that Mercy, they were banished, and a Law made that fear must never be the Case—I move that these men may be reserved to such Penalties as shall be declared in Parliament. I am so tender of Blood, that I have said nothing to-day to wish any body's finger to be cut; but we are like to be in Blood to defend what is begun, it may be, with a Sea of Blood; therefore, those that have been the occasion of all this Blood I would have such justice upon, as may procure our safety hereafter.
Sir Thomas Littleton.] I am as much against a general Act of Indemnity, as against excepting all. Suppose you declare them in as hard words as you please—but I would do it to reconcile the Nation. Make them support the Government by setting all mankind at ease, (some must be excepted) and that will do your Business.
Sir John Lowther.] I am not for a separate Question, but for complicating all together. If you divide the Incapacity, there is a legal Incapacity that will involve a great many. I am for setting all at ease but Papists.
Mr Howe.] As for excepting all in a lump, I am against it. Many are fit for Fines that are not fit to die, nor fit to bear Offices.
Resolved, That no Person shall be excepted out of the Bill of Indemnity, as for Life, upon this Head.
Resolved, That some Persons shall be excepted, &c. as to other Pains and Penalties, not extending to Life.
Monday, June 17.
On the Heads for the Bill of Indemnity.
Mr Garroway.] You say in your Vote, "Some Persons shall be excepted." If no body else will name a Person, I will name one who sat in Magdalen College Commission. It is Jenner.
Mr Brewer.] He was not one of the Judges of the King's-Bench, and I see not how he can be under this Head of the "Dispensing Power." He was a Baron of the Exchequer.
Mr Hawles.] Perhaps he gave his Opinion for it, and I believe it, but it appears not to us; though possibly he may be on some other Head. I have examined, and I know of none, and can find none—There were some Fines set, and you enquired of Sir Samuel Astrey, and he informed you, that a Grand Jury was discharged—And you have not then any Evidence. Whoever made that Patent is as much criminal as any body, whether the Attorney or Sollicitor General.
Sir Henry Capel.] Two things you are to know. One, who gave the Opinion in the Dispensing Power, in Sir Edward Hales's Case. You were well moved to have the Patent produced, and then it may appear whether Jenner was one of them.
Sir John Guise.] It may happen, they may tell you upon what ground those Patents of Dispensation were drawn.
Sir William Williams.] No Judge is to give his Opinion extrajudicially. There is no such Patent in nature; but there is a Commission with Non obstante, and there were several Commissions granted out with Non obstantes.
Sir John Guise.] There was, I mean, a Patent of Dispensation for Sir Edward Hales, under the Attorney's or Sollicitor's hands; they went upon their own heads, and drew it; and it was pleaded in his Case.
The Speaker.] I saw a Patent of Dispensation for most of the principal Papists about Town.
Mr Hawles.] The Docket of the Patent will discover from whence it came.
Sir Robert Sawyer.] There was such a Patent, and it passed my Hand, and I will give a true Account of it. The first Warrant came to me the 21st of November, that did include both the Pardon and the Dispensation for the future. I said, "I could not pass it." I told Mr Burton, "that the Dispensation would spoil the Pardon." I will show you the whole: I have almost worn out the Papers in my Pocket. After I had told him my Judgment, he brought me a Warrant for a Pardon of what belonged to the King. On December the 31st, they brought this Patent in question. I told them then, "I could not pass it;" and I told the King, "that in Point of Law, the Power was not in the King." The King referred me to my Lord Chancellor and Lord Sunderland; they told me, "I was but a ministerial Officer, and might do it." I did not conceive the King had that power, and I could not do it. The King desired my reasons under my Hand. I consulted an honourable Person, Mr Finch, and then gave it under my Hand. The King said, "He had a respect for me; but will you agree to it, if it be the Opinion of the rest of the Judges?" I said, "I was but a ministerial Officer; but if it was the Opinion of the Judges, I must obey." I heard nothing farther till three weeks after; when the King sent for me again; where were present the Chancellor and Chief Justice. The King said, "I am advised by the Judges that I have that Power;" and then it was brought, and I, as a ministerial Officer, did pass it. Soon after, six of the Judges were turned out— Then they brought Walker's Patent—I had the greatest veneration for the Judges not concurring—If they come to be of that Opinion for fear or expectation of Preferment, the Nation can never be safe. I begged, on my Knees, that the King would put me out of my Place. I desired to know, why I was not turned out? I was told, "Because the King would not gratify another to come in my Place." Then I was brought the Duke of Berwick's Patent of Lieutenant and Custos of the Forest. I told them, "I would not pass it with a Non obstante." I was sent to by the Chancellor "that the King would remove me." Nobody then about the King, but knows I stood stiff upon it. I was Attorney in all these transactions, and you will find my Integrity the greater, that I could hold it in those times. I knew, all things were set up to introduce Popery. I gave my Opinion, "that the Lease of the Excise, on the Death of King Charles II, was a void Lease," though there was an overbalance of Judgment that the Lease was good. There was another project of Brent's to set a new valuation of First-Fruits; they were then undermining the whole Clergy of England. The Commissioners of the Treasury were glad there was an obstacle put to it. I will show you all my Papers that I have to justify me. I never had a Pardon, nor ever desired it.
Mr Hawles.] Upon what has been opened by Sawyer, upon this Head, I think him the greatest Criminal upon this Head. This Gentleman was not satisfied that this Patent was legal; why did he give it out then? I am sorry to say, that a certain learned Member had a Hand in passing these Patents, (there were many Patents passed to Persons that did incur the 500l. Penalty) and was earnest for the 500l. men.
Sir Robert Sawyer.] Mine was but a private Opinion, not a judicial Opinion. The Judges are the King's Counsel, and they are advised with; but the great hurt is when Judges are corrupted in Opinion. I submit whether any Officer must not do as I did.
Mr Howe.] Sawyer has endeavoured to vindicate himself. I am not a Judge of the Law, but when he comes to vindicate himself, then is the time to speak to that. That Horse which carries the first stage, and that which carries the last, are all Post-Horses alike. It may be, some would be content to be hanged to leave 1000l. a year to their families. I hope these Judges and others, &c. may be reduced to their former Estates that they had, before these Crimes were committed. They would be willing to sit down with two or three hundred pound a year, and laugh at us. I would move something, to know the names of the Persons you would enquire into for acting and promoting this. I will give my Opinion as freely as any body, to provide for the future against the Infamy of such Persons to be in Office, who have very lately been in arms against us.
Mr Hawles.] The way to know is from the Officers of the Court in the Case of Godwyn and Hales. Let us not give occasion to think we do injustice, but inform ourselves.
Mr Boscawen.] I would know what Oaths the Judges and great Officers of the Law take. If their Oaths, and the fear of braking them, will not keep them to their Duty, you may proceed farther.
Sir Thomas Lee.] If I thought you would not proceed without proof, then there must be a Committee to enquire. I suppose, when you come to apply punishments, you will hear every man what he has to say in his own defence. One tells you, "he knows not who was there;" another, "he knows not how Opinions were given." 'Tis apparent that the Judges gave no Opinions; but their Practice gave the Example, and it was an Opinion that put on the Chimney-money upon the Paupers, which Sawyer gave. Archer and others, who had their Patents Quomdiu, &c. though they retained the ordinary Fees of Court, yet not their Salary of 1000l. per Ann. If the matter be apparent, then you may proceed, and not lose time.
Col. Austen.] If the Justice of the House can go no farther, it is in vain to proceed. If you will not come to a Justification of what you have done, let us go home.
Sir William Strickland.] Those who were the great darlings of King James, not to turn them out! Those are the Persons to be excepted. I mean Sawyer.
Mr Harbord.] What is the Reason for taking away Chimney-money? Was it not, because it was barbarously collected against Law? The King's Counsel gave their Opinion, to shelter the Privy Counsellors, that Ovens and Cottages should all pay. These have grown up by the advice of Sawyer; and if you fall not upon them that did this, you are defective in Justice. I would always have it a maxim here, "that to levy Money against Law is Treason. "If privately, cunningly, and traiterously they give an Opinion in Law, those you must lay hands on. I am tender of Blood, and cannot give my consent where no Blood has been shed. The Blood I mean is that of Sir Thomas Armstrong, a most barbarous thing! And all foreign Nations where I have been cry out upon you, and say, there is no living amongst you. I would except them even for their Lives.
Sir Robert Howard.] This is not your Business now, but what you will do on the Judgment given in Hales's Case. Sawyer has told you, why he did do it, and has Papers in his Pocket. He tells you, "He had the Opinion of the Judges, but the King and my Lord Chancellor told him so." All must be seen before you, and perhaps you may make these things clear; and let Sir Samuel Astrey and Henley bring you the Judges names. But this now looks a little short, that Sawyer did this upon hearsay; but I would not condemn him upon hearsay; send for Astrey and Henley, and adjourn it to to-morrow.
Sir William Williams.] 'Tis true that this extrajudicial Opinion was given, but how shall the House be satisfied? I was present in Court when Judgment was pronounced. It was by Lord Chief Justice Herbert. He had consulted all the Judges, and there was but one Dissenter; on that Opinion, Judgment was given. But that they should be quiet under that Law, and not be contradicted, is strange to me, who gave and persisted in this Opinion. But whether you will refer it to a Committee, or send for the Officers, I submit.
Sir Robert Sawyer.] I will bring my Papers to-morrow, and you may have all the matter before you.
Sir John Lowther.] I think it not possible to come to a Resolution of this Question, till you have the State of this Head before you. The words of the Head are, "advising and acting in pursuance of the Dispensing Power, &c." So you must make no distinctions; they are all equal crimes, and when you come to the Case of Hales, you will not think that so great as the Lord-Lieutenant's, who came down to urge Persons to declare for the taking away the penal Laws, and the Test, and to act without it. This is levying War openly. The Judges, who have given their Opinion in Westminster-Hall, I cannot think more criminal than those that contrived it. I presume, the Wisdom of the House will weigh the "advising and asserting" it. I presume, you will find "acting" one of the least Crimes. Consider the quality and greatness of these men; you will not lay the load upon some men only, and let those equally concerned escape.
Mr Garroway.] I rise up to second the Motion, "That Serjeant Streete and Justice Powell may be here to-morrow."
Mr Ettrick.] When you sent for the Judges last, you sent some of your Members to attend them. Powell is a sitting Judge in the Lords House, and I think it fit you do it to him.
Mr Justice Powell, Sir Thomas Streete, and the Prothonotary, Secondary, and Remembrancer, were sent for.