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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Friday, January 10.
An ingrossed Bill for restoring of Corporations was read the third time.
Mr Sacheverell.] That this Bill is very necessary, no man but thinks. Surrenders of Charters are crimes notorious, but all are not equally guilty of it. I tendered one Clause the other day, "That those that did it either wilfully, maliciously, or for their own lucre, ought to have a mark set upon them," but not to extend to all Persons alike. When I drew the Clause, I considered the times and circumstances they were done in; those that did it either to serve ends of their own, or those of the wicked times; I looked little farther, seeing London did defer their Cause as far as they could: Some men, through fear, surrendered what they could not withstand; therefore, to be liable to that small punishment, the House put out the word "Majority," and made it general. I thought it too large; I have considered it since, that going so large is too far. My opinion is, to look back only on them who came voluntarily, without consent of the Majority, and ought to have marks; and, after the City-Charter was taken away, it might induce the Majority to surrender. I could be content to excuse those from this disability. I cannot suppose they did it maliciously: Therefore, as a friend to the Bill, I proffer a Clause, "For incapacitating, for seven years, all such as had any ways acted in the surrender of Charters of Corporations, from bearing any Office in the said Corporations."
Sir Thomas Clarges.] I am against this Clause. This Bill comes with a good prospect; in a great measure, it is a good Bill; but this Clause is destructive to the peace and quiet of the Kingdom; instead of reconciliation, it lays the foundation of perpetual division. I think, it will become the wisdom of this House to make this a Bill of peace and quietness. In Hackwell's Book, I find, "Where Proviso and Clauses are contrary to the matter of a Bill, and altered, as in a Bill of Clothing, the House disliked a Clause, and threw it out." Upon these grounds and considerations, considering the fatality of it, if some expedients prevent it not, I desire the Clause may not be read, but rejected.
Sir Walter Yonge.] I am for the Clause, for the reason Clarges gave, "For the peace of the Kingdom." Where a Clause is so fair as this, nobody can be against it, but such as approve of all the villainies of the Surrenderers. Those who would have brought in Popery and Slavery if they had power, would do the same thing again. They abhorred Parliaments, and Petitions for their sitting, that only humble remedy. When such a Clause is offered, that Corporations be put into the hands of good and moderate men, I would not have it rejected.
Mr Hampden.] If we get into this way, we shall not have done till to-morrow. One moves, That the Clause shall not be read, and gets into the merits of the Bill: The proper Question is, "Whether this Clause shall be read?"
Mr Roberts.] As this Bill is now, it is a most pernicious Bill. It came a good Bill from the Committee, but the additional Clause has spoiled it. It was brought in in a thin House, and, I hope, you will reject it in a full House.
Sir Christopher Musgrave.] Pray keep us to the Question, Whether you will read the Clause, &c. When in Debate, Gentlemen ought to conform themselves to modest expressions, and not to be told of "Justifying all the villainies that have been done." I think, with submission, you ought, Mr Speaker, to correct such expressions. I think this Proviso not capable of Amendment. In opening the Clause, Sacheverell told you, "It must be proved that the Majority made the surrender," and yet there is a difficulty; for, he knows, whole books have been stolen away by the Town-Clerk; and a man runs the risque of proving himself qualified, without any Record to show.
Lord Falkland.] I think Sacheverel's Clause irregularly brought in, and, indeed, the whole Bill, when you had passed the body of the Bill; and this Clause is a contradiction to the whole Bill. This Clause takes away the rights of those you would save. The Clause takes away the rights that were restored by the Prince of Orange's circulary Letters. It is dangerous, now the King is going out of the Kingdom (fn. 1), to discontent such a body of People. I am more afraid of the consequence of this, now People are generally dissatisfied. This Bill is a restoring of Corporations, and not a Bill of Pains and Penalties. This clause is improper for this Bill, and for the present circumstances of affairs, and I would have it rejected.
Sir William Pulteney.] I attended this Bill the last Session, and this, which, I must say, he brought in irregularly to take away free-holds, and disfranchise men, and this without leave of the House; a very extraordinary proceeding! As to the form, very angry and very naught! 'Tis too general. You may punish thousands; dangerous at this time. The Bill says, "They shall be restored, &c." and the Proviso says, "They shall not be restored;" a contradictory Clause! Whole shoals of men will be put out by this, many terrified, and no reason to punish this sort of men. Suppose an armed force come to my house, and say, "Give us quarters, or else we will plunder and burn your house:" The terror upon these men justifies the thing. Twelve red coats in Westminster-Hall are as great a terror as an armed force. I am not fond of falling upon Addressers and Abhorrers—This is not the way to make friends for the King nor the Government. You have several Precedents (though one cannot speak against the body of the Bill) yet if a Clause be not according to the intention of the Bill, it may be thrown out; and I would reject this.
Mr Hampden.] I have heard of one Parliament that has arraigned another, but never heard of one Parliament that has complained of itself to its own face. Your Bill says, "All such and such shall be restored, except such and such;" and it is no contradiction certainly. Do you intend to restore all those to act the same thing again? You are told, "It may be taken care of in the Bill of Pains and Penalties;" but will you restore them to Corporations that have betrayed them, and let them do it again? The Proviso cannot be rejected. Now you are told of Precedents; if they are examined, they are not to this point. I do not remember a whole Clause cut off in a whole Bill. What you have to mend in an ingrossed Bill must be mended at the Table. It is a strange sort of mending a garment to cut off a sleeve. It is said, "This may be reserved for the Bill of Pains and Penalties," and there will be none. Pray pass the Bill.
Serjeant Maynard.] I have heard that to-day which makes my ears to tingle. The case is, here is a Bill brought in to restore Corporations, and it is moved, to cast out this Proviso. It has been committed, and ordered to be ingrossed, and a Gentleman comes and prays that it may be thrown out; certainly he is but a young Parliamentman. To move to cast out the whole Clause, you put it on an everlasting Debate; if there be no Penalties, you had better like what King Charles and King James did. If those Surrenders stand, they may make what Parliament they will at Court; and, formerly, he that should have named such a thing, should not have come to the Bar, but gone to the Tower. Why may they not as well move to cast out another and another Clause, till they have left none in the Bill?
Sir Henry Goodrick.] You are told of "Making ears tingle," and of "The Court making a Parliament;" and by another, "To justify all the villainies, &c." It is a Bill not good in itself to let in all mankind into Corporations; Fanatics, &c. If all these must be left out of Corporations, whom avarice, force, and easiness have induced to surrender their Charters, if all these must be left out, whom will you leave to act; whom will you leave to chuse Parliament-men? None. Harmony must save us; when this is a Bill of heat, a Bill of Attainder, where will this end? No man knows. Till you let us debate freely in this House, I desire to withdraw from my attendance. I would have Yonge explain, or be called to the Bar.
Mr Garroway.] It is moved, "That Yonge should explain." If the Gentleman would have made exceptions, he should have done it immediately. The House has been divided since, and it is against all Order.
Sir Thomas Clarges.] Yonge is a young Gentleman, and, I believe, what he reflected on me was passion; and I would desire you to pass it by. I have been told by Hampden, "That I talked like a young Parliament-man;" I could wish he could make his words good. I wonder at this from a Gentleman conversant in Records, for Hampden to say, "It has not been done in his time," when it has been done. In great emergencies it may be done. We sat from nine till four in the morning about Skinner's case, and I remember what Mr Vaughan said, "That Precedents cited without Records were so many nothings." I have not yet spoken to this Clause. What I said was only as to Precedents. I know a Corporation of 600l. per ann. advised by this Lord Chief Justice to surrender, or else, if judged against them, the lands would go to the next heir of the granter, &c. Hundreds of innocent persons would have been involved. In the third Session of the first Parliament of King James I, Page 64, &c. you will find the Precedent I spoke of. I will make this use of it; if it appears that a whole Proviso is taken out of a Bill, it may be done again.
Sir William Williams.] The Motion made is for rejecting the whole Clause. It is one thing to reject, and another to correct a Clause, to be mended by the Clerk at the Table. But if the whole Clause ought to be recommitted you consider whether any thing be good in it before you wholly reject it. This Clause is an Exception of some before 1685, and not to be restored. Do you restore them to their Franchises? What are these Franchises? Will you restore these men, who have been the worst of men, and betrayed their trust, into the plight of an innocent man, and restore them to their places again? Is there not a middle way? I agree to the wilful and malicious man— Will you put it again into the power of the greater? I would make them the lesser men, and take off the greater. By this day's work the World will see we are a divided People. This Proviso sets only a mark upon such men. In some Corporations, of 600, who had a right to give consent to a Surrender, not above thirty-four were for it; and they prevailed: And how came this about? This was a packed Common-Council by Lord Jeffreys. There are 500 still in being at Chester against the Surrender, but because a few in Corporations are concerned, must you let the whole be lost for the sake of a few? Can we forget the Law for regulating Corporations? Can any thing be said for this, that cannot for that? Because Dissenters, in the first regulation, were put out, and the Church of England came in, can any man argue for that Act of Parliament that does not argue for this Proviso? That Act did good in Charles I's time, and this may do good in King William's, to put out those that would go back again. I would recommit the Proviso.
The Clerk read some Precedents of 1607. "Ordered, That a Clause be erased out of the ingrossed Bill for Cloathing. In the Bill for repealing the Clause of the Statute about Ferry-men, and Water-men, it was agreed, by the Counsel on both sides, to be struck out; which was presently done at the Table."
Mr Howe.] I am almost afraid to speak; it is almost as hard to say what is talked, as to be of every man's opinion in this House. I hope all here speak their opinions candidly. I did hear a reflection that I wondered at, and that I would not have made, (Goodrick on Maynard.) I would have the Church of England settled, without their passive obedience. I would never willingly part with any thing established by Law in that Church. But these men have delivered up their Charters, depriving of their right children unborn. The Question is, Whether you will let them in to all they have pretence to, or take away all we have pretence to. Corporations did chuse such as were for Court purposes; I would secure it on that side, though I hope it will never be attempted there. Those who are sure to be subject to those passions, I would not trust to chuse Parliament-men. How safe can we be, when such men are the originals of our misery? It was that party that the Prince of Orange's Declaration principally made at. The point is not, Whether it is fit to do it, but whether now. I am sorry the Expedients are refused, but if you put it to the Question, "Whether this Clause, or this Bill pass," I cannot let so useful a Clause be lost. I think this is no punishment; it takes off a great trouble from these men, and frees honest men from fears. The properest thing you can do, is to put them out of power. You may moderate this Clause by punishing the Principals.
Mr Sollicitor Somers.] As for the Precedents produced, they are not to this case; the case of the Ferries relating to a particular person where Counsel was heard, and both parties agreed to leave the Clause out. This Proviso was offered in the House, received Amendments, and the Question was put, and it was voted part of the Bill. If the Question be, "Whether this Proviso shall be part of the Question," it is undoing what you have done, and I dare boldly say, there never was a Precedent of such a thing. The House are obliged to answer the objection (and not I) to the irregularity, for they admitted it. To destroy Corporations, and to make Parliaments at the pleasure of the Crown, this is the thing, and these persons are complained of for it. This is the worst means to arrive at the worst ends imaginable; they have broken their oaths and trust to subvert the Government. Is there any thing more just and natural than that these offenders should be laid aside? And to put these men out of condition to play the same trick again! All you restore were the old Members of the Church of England, but not that corrupt part of the Church of England who endeavoured to destroy the Government. Honest men are now Electors, to supply the place of those ill men. If they have a mind to betray you; they cannot, they must be qualified by the Test-Act. Are not these the ways you distinguish them from the Church of England? None others can come in. I am sorry it should be said, "No body is fit to be trusted but such as are branded with this reproach." And they will be as just to the Government as they will be to the Church, true Church of England-men. All those men that were in the first part of this matter, were either for private ends, or worse ends; though I hope it was not for that end that this Clause was refused. I doubt not but Corporations will be supplied by Church of England-men; they can have no others. It is said, "This is a Bill of Pains and Penalties;" but you are not doing that; you are only laying them aside, that, you have had experience, would have betrayed the Government. There is no possible inconvenience in this Proviso; you will have better men and unspotted men in their stead; therefore I would not reject the Clause.
Mr Foley.] The Question is, "Whether this Clause shall be rejected, or not?" It was endeavoured, the two last Reigns, to pack a Parliament to subvert all our Constitutions. There was a design for a Clause in a Bill "That all Corporations should surrender their Charters by such a time, or else they should be void, and Justices of the Country should act in all towns, &c." Had that design succeeded, there had been no need of Quo Warranto's. Your Books will tell you, it was not in the power of that House to make such an alteration. It was part of this King's Declaration to restore all Corporations to the condition they were in before the Quo Warranto's and Surrenders. We have ill Ministers, and they are concerned that the same thing may be done again. Men have done all they can to annihilate their Corporations, and we must not annihilate, but restore these men. If there be any in Corporations who are sorry for what they have done, they will take this for a very merciful Proviso, that they may do no more mischief to Corporations and to the King; therefore retain the Proviso.
Mr Ettrick.] This Proviso is a new Law tacked to the Bill. This Bill is a substantive Bill, and will stand without this Clause. I think, this Clause draws in the good and the bad together. What could any man advise in such a case, when Westminster-Hall had voided the Charter of the City of London? And, therefore, a great man, for the benefit of his Country, advised Surrenders. As to the matter of prudence, if all have been guilty, I would not mingle the nocent and innocent together.
Mr Finch.] I conceive, you are to consider, whether, first, you can, and next, whether you ought to receive this Proviso. It is said, "It came by Report from the Committee upon the Precedent spoken of;" but upon the Journal it appears, that the Proviso was rejected, and the Bill passed. The Committee sent it back, and could do nothing, and the Parliament leave it out, and pass the Bill. It is not what the Counsel at the Bar agree, but what the Parliament think fit, not because they agreed it, and no Council at the Bar can touch upon the power of this House. It is natural to make a slight Amendment at the Table. I will not say any thing to the method of bringing in this Proviso; the House did receive this, and voted it to stand part of the Bill. I could wish the House had been fuller then, but the House may reject it now, and I hope they will. I doubt it is not capable of Amendment. It leaves men under the terror of the 500l. penalty, if they do not incapacitate themselves. It was a fault, but it was general. It is said, in the Preamble of the Bill, "The design was to pack Parliaments," and it is said, "This Clause is to incapacitate persons that they should not be guilty of the like again." Most Gentlemen are sensible that the multitude of Surrenders were after the Quo Warranto's; "upon this," says the Bill, "there was a design to pack Parliaments." It was not this that put them upon taking away the Penal Laws and the Test; it required another regulation. It was after all the regulations, that these men stood in the gap. It puts Corporations as they were in 1675. See if this Clause stands part of the Bill. If these men be put out of the Bill, you put out the men of estates, and the ancient Corporations are put into the hands of men of little or no fortune, and some call them the Mobile. There is a Clause in the Bill that declares all Surrenders void; where is the danger of these men doing the same thing again? The former are in their offices and employment again. Leave this Clause out, and you put in the rich men of the Corporations, and if this stands part of the Bill, you put those in of no estates, and that have given no testimony of their affections to the Government.
Sir Robert Howard.] Instead of punishing men that have done ill, we are here making eulogiums on them. I am not for the Church of England with that famous doctrine some maintain. In Queen Elizabeth's time, when she protected those in arms in Holland for their religion, the Church of England contributed their opinion as well as their money, and thanked the Queen when she acted according to the steps and method of Popery. Then the divine right of passive obedience without limitation—If ever so many tyrants were complicated in a King, he must be obeyed—It was then they began with Corporations; I say, these were given out for Doctrines of the Church of England, and delivered over to the Civil Execution. This was setting up that false Doctrine of the Church of England.
Sir Francis Winnington.] To the Orders of the House. This is foreign to the Debate.
Sir Robert Howard.] I arraign those that arraign the Church of England of such Doctrines; these men prepared Corporations to deliver up their Charters. The false representations of the Church of England's Doctrine, made way for those misfortunes that followed. This was the first cause; whatever they did to sacrifice lives, and for the times, was sanctified by this Doctrine of Non-resistance. The Question is now, Whether you will do any thing to these people, or no? What think you the Nation will say to all this? In the beginning of the Bill such a thunder, and so hard characters put upon men, and to close the Bill with nothing! And now to fix not only an obligation, but a character, that they are all fit for these employments! I have abhorred what was done in the late times, but rather than no mark of incapacity shall be put upon these men, I would part with the whole Bill.
Sir Thomas Littleton.] I would have this incapacity extend to none but such as forcibly delivered up the Charters, without consent of the majority.
Sir Henry Capel.] It is said, "That something of Fanaticism is in this Bill, by taking away of that Clause of the unlawfulness of taking up arms, or resistance, &c." I said then, "If Marshal Turenne should come out of France to invade us, should we not resist him?" Why did they not do their duty before the Prince of Orange came over? Did these Gentlemen ever think to find Justices of Peace, and Judges, Papists? Lewis XI had liberty to raise Money till he called a Parliament, and he never called one, and Money has been arbitrarily raised without Parliament in France ever since. You should have had Parliaments, your bellies full, as Florence and Rome now have, the one to set the rates on chesnuts, and the other to regulate sick people.
Mr Coningsby.] Surrenderers were the scassolds, and Regulators were the builders; will you leave them out?
The Proviso was rejected, and the Bill passed.
[January 11, 13, 14, and 15, Omitted.]
Thursday, January 16.
On a Motion for a Committee of the whole House on the Bill of Indemnity.
Mr Sacheverell.] I am always of the same opinion, that this Bill is necessary, but I would have it set a day, that Gentlemen may the better prepare their thoughts.
Mr Hawles.] When men have overturned the Government, it is no wonder they press an Indemnity. If we are too hasty in it, the matter will not be acceptable to the People.
Col. Austen.] If the present Reign had begun with examples of justice—But since the King has no inclination to such examples upon great offenders, it is not to be feared that the delay of that Bill will put the people in apprehension—Let the Pains and Penalties go on upon an equal foot.
Sir William Pulteney.] This cannot go on an equal foot with Pains and Penalties. This has more exceptions than ever any Bill of Indemnity had. It is almost the transcript of that of 1673, to serve turns at Court. I would go on now upon it.
Mr Hampden.] If Pulteney will go into the Bill immediately, his conclusion contradicts his premises, and putting Indemnity, and Pains and Penalties into one Act, what will it then be? It is said, "There are bad men in this Reign;" I believe it, very bad. Suppose it be said abroad, when you have pardoned all except such persons, if Pains and Penalties never pass they are pardoned. Let us go to work like men with their understandings about them, which is easily done; for if you think fit to lay Pains and Penalties on notorious offenders, when you come to Indemnity you pardon all but such and such; so the Pains and Penalties are as natural, and more than the Indemnity first; the next best is to put both into one Bill, and both committed to the same Committee, and the Committee to have order to join them.
Sir Thomas Clarges.] I think, Hampden was in Parliament in 1660. There an Indemnity was granted upon a Revolution. The proceeding then was, you excepted persons to farther Pains and Penalties, some for life, and some fined a year's Revenue of their estates.
Mr Foley.] No longer ago than Sunday last, the Minister in Friday-street left out prayers for the King, and his sermon was a libel against the King and the Government, and a design to bring in King James. When you have agreed, a Committee will require several Questions, which will take you up till night; therefore I am not for a Committee now.
Sir Henry Capel.] If we go so fast on with the Indemnity, and leave the Pains and Penalties asleep, it will go slowly on. I am the more surprized that the Indemnity is so pressed, when it was said the other day, the Bill of Pains and Penalties was forgot, and the Indemnity carried on. You may incorporate them into the same Bill, and, I hope, we shall be unanimous. I am sorry we should be divided.
Lord Falkland.] It is absolutely necessary to express whom you will except, before you inflict Pains and Penalties. If you design such a Bill, to ease the minds of the subjects, the sooner you do it the sooner you will ease them. If any thing makes people against the Government, it is the uncertainty of passing this Bill.
Sir Christopher Musgrave.] An honourable person was pleased to put us in mind "That we forget Pains and Penalties;" I think not, we read it yesterday. A Gentleman said, "The Minister in Friday-street left out prayers for the King;" and I am as confident the Magistrates of the City will take care to punish him. You are told, "You must pass an Act of Pains and Penalties;" but, if so, I know not whether we shall have an Act, or no, and we shall have work enough to pass them singly—Your Indemnity to be nominated singly. But, I think, for saving your time, that you nominate them in the Indemnity. But it is said, "Why in such haste?"—But I have been here two months, and the Bill was read but yesterday. I move, That it may go to a Committee now.
Sir Thomas Littleton.] Suppose this Act pass, and the other, and you name not the persons, they stand as scarecrows in the Bill, and are let alone. If that be the opinion, why such a contest for priority? But will they give us the reading of the other Bill, at the same time?
Mr Hampden.] I have heard a hundred times (I may say) a certain for an uncertain time. You have declared, "That if the Speaker declares it, they must go out." To the Order of the Day; read the Bill, and those against it must go out.
[The Question for resolving into a Grand Committee on the Bill of Indemnity, passed in the Negative, 193 to 156; and the Bill for inflicting Pains and Penalties was read a second time, and ordered to be committed.]
[January 17, Omitted.]
Saturday, January 18.
Debate on Sir Robert Sawyer's Prosecution of Sir Thomas Armstrong, being then Attorney-General.
Mr Hawles.] A Writ of Error is a Writ of Right; and I am sorry it was left out in the Bill of Rights. How scandalous is it, when a man guilty of the murder of Sir Thomas Armstrong should be protected within these walls! Warrants were directed out of this House for attaching Lord Stafford, and he complained of it in the Lords House as a Breach of Privilege, but the Lords would not hinder the proceeding. They said, "They had no Privilege in those Cases." If you say, "You cannot name a Member without Order at a Committee," you must recommit this Bill for repeal of Sir Thomas Armstrong's Attainder, to do right: I do not understand it to be satisfaction for the estate of this Person, but for the blood of this Person. I would have the Money for those that suffered, and those that suffered not. Why is it enquired, what this Gentleman is worth? An Appeal may be brought by an infant, and he had 1500l. for the blood of his ancestor. In the case of Sacheverell and Blackwell, a Writ of Error was brought, and there was damage given for the blood of the Ancestor. They who destroy the King's subjects, act against the King. He that preserves most of his subjects does him most service. In his natural capacity, he may destroy whom he pleases— In his politic capacity, those who are most guilty only. Armstrong offered a Plea, and it was not allowed, and you have voted it "Wilful Murder." When the thing is so plain, (though I would not punish for mere error) and you have voted it "Murder," sure it must be in somebody. Armstrong did not murder himself, and afterwards quarter himself; indeed Sir Edmundbury Godfrey hanged himself, and afterwards stabbed himself! Were the Judges and Prosecutors guilty? They were all guilty. I am not for rigour, though blood cries for blood. Let them that require satisfaction have the Money, and let all be reported to you.
Sir Robert Sawyer.] Let all persons guilty suffer; but the Question is, "Whether I have been dealt withal by the Committee as a Member?" When the Bill was committed, a Charge was brought against me, "That I had proceeded against Sir Thomas Armstrong arbitrarily and illegally." It was said, "It was ever the duty of an Attorney-General to grant a Writ of Error;" but it was never done in any book of Law. Application must be made to the King by Petition, and he gives a Warrant to the Attorney-General to consent to it. The Statute that gives the Writ of Error runs thus, "Except in cases where the King is a Party." Ed. III. The parties petitioned for Error tam quam. It is a received opinion, that a Writ of Error lies not in those cases. Before the Statute of Hen. VIII, there was no Writ of Error but in the King's-Bench, and all was by Petition to the King. I did forbear to attend the Committee because I opposed the Bill; they have waved that Clause, but I am not exempted; you may hear it at the Bar, and I am not exempted from it. It is the duty of every Attorney-General upon an Outlawry brought, and of course it is his duty to pray judgment of the Court; which asks what he has to say. If he produces a Plea, then the Attorney replies. But that is an extraordinary thing to allege what Hawles says, &c. I desire there may be the strictest examination of my actions. No man can serve the Crown, if he is an honest man, if he must be blamed for all the Miscarriages of the Judges.
Mr Hawles.] Pray let it go back to the Committee, with the directions of the House to find these men out, and spare me not if I be one. Upon the Plea, the Outlawry ought to be laid aside. It is the duty of the Attorney to inform the Court, if running into an Error.
Sir William Williams.] I shall speak to the Recommitment. If you recommit this upon Breach of Privilege, for naming Sawyer at the Committee, without acquainting the House, we go in a wheel; you only send it back to the Committee to do nothing upon it. If it be your opinion, that it is a Breach of Privilege upon Sawyer, he may be heard at the Bar. It is fit that you put yourselves into some course. You cannot regularly send your Member to a Committee without Instructions. Pray let us have plain dealing; will you recommit the Bill with Instructions? Else your Member must be heard at the Bar. You are told, "There can be no Writ of Error in criminal cases where the King is a Party, but by a Warrant from the King;" but I take the Law to be quite otherwise. He goes farther, and tells you, "When the Party brought either Error, or a Plea, he ought to have a Warrant from the King, &c." I drew the Plea, though I was told, "It was a snare for me," and your Vote calls it, "Murder, &c." so you have justified that matter. When the Plea was tendered, did any body move, that the Plea should not be received? This is the answer of the Attorney-General; all is put upon the dead (Lord Chief-Justice Jeffreys) and the dead must answer for the dead, and the dead bury the dead. If they had executed the part of an Executioner, they had done all—I was asleep in the Court. I heard not of it. Pray let us have it heard at the Bar tomorrow.
Sir Thomas Clarges.] I would recommit the Bill upon the point of satisfaction and reparation. You are told, "A great part of the Money (Armstrong's) remains to his heirs, and settled before the Attainder;" and if any satisfaction is to be paid by any of your Members, recommit it upon that point.
Sir Robert Rich.] Before you put any Question, I move, that the Order by which your Committee sat, may be read.
It was read.
Mr Smith.] I move, to recommit the Bill upon that point of reparation. I am satisfied that Armstrong suffered illegally, and I am willing there should be consideration had of his family, which might have been proper in the Indemnity. I think it not reason that there should be reparation out of Sawyer's estate, nor is he concerned.
Sir John Lowther.] As for reparation, &c. it will be found a thing not precedented, and as for the Writ of Error, we are not clear in it, therefore I would have it committed again. Though several Precedents have been quoted by Hawles, yet no Precedents of Parliament, but all of Westminster-Hall; if those should be Precedents, they may misguide Westminster-Hall to do the same thing again. I would willingly have Precedents of Bills of Repeal of Attainder signed by the King, and sent down from the Lords. Lord Russel's was so. To take an estate, descended to the right heirs, to be forfeited, I never heard of that before. Should this make a difference with the Lords, the Bill is not worth that. When the thing is a novelty— Let it have its proper passage from the Lords.
Sir Christopher Musgrave.] I know not what it means to recommit the Bill upon the Debate. The Committee had brought in persons not in the Order. Next, it gave reparation, where it did not appear the estate was lost. It is said, "The estate in Ireland was lost;" but it appeared still to be in his Executors and heirs; and Sir Thomas Armstrong's bonds, if they be good bonds, they may have them. If there is any thing arises at the Committee in relation to your Member, they are to make a special Report of it, and then he has opportunity to make his defence. I would recommit the Report upon that point of reparation, and leave out those names they had no Order for. The Order tells you of the Judges, and the two Prosecutors, and no more.
Sir John Guise.] It surprizes me that the House is not of the same opinion they were formerly of. You may have a Member in the case, and, it seems, to-day a Member is not to be named, but if a Member comes in the same circumstances as others, did I think I sat in the House with a murderer, I would not sit till I had thrown him out. It is said, "Armstrong was denied a Writ of Error;" I hope that that is the right of the subject to have that Writ, of right, without Petition. It has been told you, "He has 300l. per ann. in Ireland, and several debts in England;" and it is said, "They are in the hands of the Executors of Armstrong;" but I suppose they are worse, since Lord Kingston is in Ireland. I would recommit it upon the Debate of the House. You ought to do justice to yourselves, that a man, guilty of murder, should not fit with you: Let it be heard at the Bar.
Mr Hampden.] I saw a learned Plea drawn in that business; but pray let not reflections go amongst us upon the profession of the Law. Great persons are descended from the Law, and it is a very honourable profession. Our Common Law is founded upon reason. What Law may do in meum et tuum, and conscience is very much enlarged—Formerly, at least, what a Lawyer said, must be probable for his Client, but let it be how it will in this. But will you allow a Lawyer in point of argument betwixt the Crown and the Subject? Is he not plainly to say what the Law is in that case? It is true, in a doubtful case, the Counsel ought not to do it; but, as to restitution, suppose a man killed a very poor man, do you think he owes nothing to the wife and children? nothing to reparation? If not, I have mistaken all the rules of justice. I say this, because I see those things have not their true value; they are under-valued; therefore I would lay it aside.
Sir William Williams.] I am for enlarging your Instructions to the Committee. I am for naming persons, but whatever persons come by description, within your Order, I would have examined, besides the three Judges; for I believe more were guilty than Burton and Graham. What was their crime? They went only from Whitehall to Newgate, and so to Westminster, like Porters of the business; these are Solicitors, these are Attorneys, the Prosecutors are the most guilty. Let the Committee have general Instructions. Your Committee will make no reflections, but according to the right and custom of Parliament, and the Laws of England. No cause can be just on both sides. As the Law stands, the prisoner can have no Counsel, and when he has none, he that does prosecute without Law against him, is a betrayer of the Law.
Lord Falkland.] I crave leave to add one case to Williams's, that of the prosecution of the Bishops, wherein our Laws and Liberties were concerned, which he prosecuted.
Sir William Williams.] Where there was Counsel on both sides, I might be Counsel.
Sir Robert Cotton.] What concerns your Member, you ought to put to the Question, Whether the Committee shall have Instructions to enquire into that; and now you leave them to general enquiry!—(It was said privately, "That all this fencing was not to save Sawyer, but Finch.")
Col. Birch.] I am never more afraid of Miscarriages than when it is our own concern. I know not what recommitment you mean, unless you tumble it to a Committee to do nothing again. You named three or four, and your Committee named a Member, and you say, "That is a fault." This Prosecution of Armstrong was more criminal in the Sollicitor and Attorney-General than in Burton and Graham to fetch and carry. But here is murder in the case, and you are going out of the way, unless you give leave, nay order, to read it at the Bar. Solomon says, "There is nothing new under the Sun." This may come again before you, for ought I know, therefore settle it now.
Sir Christopher Musgrave.] You have already committed the Bill, and upon the Report your Member is concerned; then it is your proper time to order it to be heard at the Bar.
Mr Boscawen.] The Committee ought to have made a special Report. As to your Member, you cannot do yourselves, nor your Member, right, unless you give a day at the Bar to hear it: And it is as necessary that the House justify themselves in their Vote as your Member himself.
Sir John Trevor.] This Gentleman (Armstrong) was my particular friend, and I am willing to do any thing for the satisfaction of his family. What will you do with it at the Committee? Specially examine it? If your Member be injured at the Committee, then is your proper time to hear him at the Bar; as it is just that the family should have reparation for their loss, particularly made out. It is true, you cannot make particular satisfaction for blood, but for his estate, if you recommit to enquire specially, and let them make a special Report, then your Member may justify himself.
Sir Henry Goodrick.] I speak to your Order; and what becomes of your Committee's Report? I see, you cannot appoint a Charge against your Member, without a Report, and the Committee has given you none; therefore, I move, that, if any Charge arises at the Committee, they may make a special Report.
Mr Hampden.] I wonder at the Debate of this Question. When your Member desires to be heard, I am ignorant why it should be denied. I must expect something singular, either that Armstrong was not murdered, or something to the ministerial matter, as he was a Lawyer. Privately to give opinion that Charters could not be delivered up without perjury, and yet to plead and use all the eloquence against the thing!—If the profession of the Law gives a man authority to murder a man, at this rate it is the interest of all men to rise and exterminate that profession. I would know what Sawyer can say.
Col. Tipping.] The Committee had no power to send for Burton and Graham, who are in custody of this House; therefore I desire they may have power to send for them.
Mr Dolben.] I find there is great stress laid upon Sawyer's being heard at the Bar; but I cannot see how it can be, before the Committee have reported special matter against him, without accusation of himself. It is plain, that Sawyer did not prosecute the whole Indictment. He was indicted in Middlesex. If he that demanded Execution be to be prosecuted, he that did the execution may be prosecuted too.
Mr Hampden.] Whether you will go to a Committee for examination, and whether you will hear it at the Bar, how your Member is concerned, 'tis a Question without a Question. Nobody will be willing to be judged at a Committee of seven or eight persons in a chamber to examine a Member; or, in general, when a Member has been concerned, it was never done, but if that arise, let it be reported specially. It is strange a Committee should examine a Member whether Guilty, or Not guilty. If you command the Committee, before the Bill comes to perfection, you may hear your Member answer in his place, and appoint a day for it. You yourselves cannot impower a Committee to examine a Member; it is the Privilege of the House, and the Privilege of every Person in it. If a Member falls in collaterally, if ever they hear a Member named, they stand up and go no farther, but report it to the House. If they have done irregularly, will you do so too? Let it be recommitted, and your Member may answer in his place.