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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Monday, January 20.
Mr Christie reports the Bill recommitted for annulling Sir Thomas Armstrong's Attainder, with some Amendments; [and specially reports the above Information against Sir Robert Sawyer.]
Sir Thomas Clarges.] In punishing persons, you may do a Precedent of dangerous consequence for the future; therefore I would have Burton and Graham heard.
Sir. John Guise.] You have referred this to a private Committee, and now they bring the Report to the House; is there any objection that the Committee have not done their duty? You had it once before you, and referred it to a Committee.
Sir Thomas Littleton.] These persons, Burton and Graham, never made any application to the House to be heard, but the Committee, that had power to send for Persons, Papers, and Records, never sent for these Persons.
Sir William Williams.] All cannot be heard; some are dead, and they cannot be heard, and by that consequence you cannot charge their Estates—The Judges are charged with giving a corrupt and illegal judgment; if these Persons did it corruptly and maliciously, and these Persons are in the Bill, it came naturally before the Committee. Such Persons as could be heard, were heard. I would do justice justly. I would hear them at the Bar; but with what justice can you then hear Jeffreys's and Alibone's Executors afterwards?
Col. Austen.] As to the justness of it, they were summoned by the Committee, and will not appear, and now they would be heard in the House. If, when you committed this Bill, and the Committee named Persons, you thought it not in their power, and these People would not appear there, I hope you will not receive their Petition in the House. I hope you will begin with the special Matter reported.
Sir Christopher Musgrave.] A Petition is offered, and you do not right unless you receive it. Armstrong was condemned without hearing, and will you do the same thing again? If nothing will appear on your Books which was said in their defence, it is a dangerous Precedent. Graham and Burton are in your Custody; let us not go out of the common way of justice, but hear them.
Mr Hampden.] Some Persons were prosecutors of Armstrong. I have observed, that all the arts of delay are used, and it is no strange thing for people to avoid punishment, and to take all legal advantages; but the Question is, What you will do now in administration of your justice? One could not come, but Holloway and Wythens might, and now you are moved to hear them by Counsel. I am of opinion they should be heard ore tenus; there is nothing to be heard upon the matter of fact. I think you will not hear them by Counsel; they ought to answer for themselves. Here is nothing in the Case, but "Guilty, or Not guilty." I would have it brought to issue. If you will hear it, I would have no denial, for your justice will be as well in administration as execution. But if they come to be heard without Counsel, every man answers for himself. You have declared already how the Law stands; let your Summons be short and peremptory, to appear at their peril.
Mr Garroway.] There is no need of Counsel to trouble you. If the Judges, &c. appear, what they can say will do them little good; they will be in your Act of Indemnity; therefore hear them to morrow-morning, before you go on the Bill of Indemnity.
Mr Smith.] I agree to what is proposed, but you are told, "The dead cannot be heard for themselves." They have left Executors, and order them to appear then.
Mr Hampden.] It is an odd thing to think of Pains and Penalties (as is moved) before you have found Persons. If that be done, do you not look upon them as criminals? Suppose you say, "Burton and Graham, &c. shall never act as Attorneys in Westminster-Hall, nor in the Ecclesiastical Courts:" Perhaps they are not guilty; therefore I think the Indemnity needs not stay for this. You need say no more, than that those who acted in Armstrong's Prosecution shall make his family reparation, as well as to public justice.
Sir William Whitlock.] I do as much detest this murder of Sir Thomas Armstrong, as any man here, or in England; but I would give a reasonable time for hearing a man. Hearing a man suddenly is not hearing him. Pray let it be Saturday.
Sir Robert Rich.] I am bound to believe, that every Gentleman means cordially, and I shall be one of those to wipe blood off from this House. I have no malice, nor any relation concerned. I believe, those men are satisfied that they cannot justify themselves, but will be trifling with you. If you will do justice to the fatherless, tell them so; next to that, tell them that their cause is not good. But what consequence is there of hearing them all in a day? I never knew men without a contrivance; they may have the gout, or be sick. I watched your Committee, and, according to Order, your Member, Sawyer, was named. Therefore pray go upon your Member present.
Sir William Williams.] You have ordered the Records of Armstrong's Prosecution to be brought; pray let the Officer be called in (Sir Samuel Astrey,) to attend you, both with the Records of the Outlawry, and the Awards of Execution. It may so fall out, that matter of Law may arise; therefore let it be indefinitely, not forbidding Counsel.
Mr Smith.] The Law says, "A man shall not be executed in twelve months, &c." and Armstrong appeared within that time; will you hear Counsel as to that?
[Ordered, That Sir Richard Holloway, Sir Francis Wythens, the Executors of the late Lord Jeffreys, the Executors of the late Mr Justice Walcott, Mr Richard Graham, and Mr Philip Burton, do attend this House on Saturday morning next; to answer to such Matters as are charged upon them, touching the Proceedings against Sir Thomas Armstrong.
Ordered, That Sir Samuel Astrey do, at the same time, attend the House with the Records of the Proceedings, both upon the Outlawry, and the awarding Execution against Sir Thomas Armstrong.]
Then Mrs Matthews, (Sir Thomas Armstrong's Daughter,) was called in, and asked, "What she knew of the Prosecution against her Father; [and, Who were the Prosecutors?"]
Mrs Matthews.] The Judges were Jeffreys, Wythens, Holloway, and Walcott; Sawyer, Burton, and Graham, Prosecutors. I was with Sawyer for a Writ of Error: He said, "Your Father must die, he must die; he is an ill man." My Mother was ready to pay him all his due fees, but he said, "He must die, he must die." When my Father was brought to the Bar, the Chief-Justice asked Sawyer "What he had to say?" Sawyer prayed an Award of Execution; which was done: My Father desired that the Statute of Outlawries might be read. He said, "He thought it was plain that he was come in within a year, &c." Said Sawyer, "Sir Thomas Armstrong will not find any thing in the Statute to his purpose: Possibly he will say, he surrendered himself to your Lordship, but, Sir Thomas, you should have surrendered yourself before you went out of England;" and he alleged Holloway's case. Said the Chief-Justice, "We have enough against him." Said Sawyer, "The King did indulge in Holloway's Case, but Armstrong was active in the fire at New-market, and he has received dangerous Letters," whereas they were no more than a recommendation to the Duke of Brandenbourg.
Sir Robert Sawyer.] Be pleased to ask her, if, when she came to me for a Writ of Error, I told her, "It was not in my power; she must petition the King?" And whether I demanded Execution till the Court had declared their opinion? And whether, after he said "He had surrendered himself," I demanded Execution?
Mrs Matthews.] I believe, Sawyer said, "It was not in his power to grant a Writ of Error," and did say, "You must apply to the King, or Lord-Keeper, by Petition."—The King and the Duke said, "It was an impudent Petition."—I cannot say, Sawyer demanded Execution before the Judges had declared themselves. [She withdrew.]
Sir Robert Rich.] You will hear those in the House, sure, as long as those out of the House. Before you debate, your Member must answer, and then withdraw. If by Law, the Member can justify himself; if the contrary, he may say something in mitigation. If the Warrant of Execution was signed by that demand, let him tell you whether it was by himself, or any body else.—
Sir Robert Sawyer.] I shall only observe, that the Person who informs you of this, is single, and a Person interested, when they might have produced multitudes of Persons; and that will appear. I did no more than my duty. She said, "I told her Sir Thomas Armstrong must die, and that he was an ill man." I call God to witness, I said it not, nor used such language. I said, "I had no power to give a Writ of Error; it must be obtained by Petition to the King." As for my management at the Arraignment, it was according to my Oath and Duty to attend the Court. Every tittle of what passed was printed in three days, and went all over England. It was not only lawful, but my duty, to put Armstrong upon Tryal, to hear what he could say to the Record of the Outlawry, and I prayed Judgment: If he had nothing to say, it was my duty to pray Execution; I went no farther, not a tittle, in this business. Armstrong quoted such a Statute, and it was read in Court. "Has he rendered himself to the Chief-Justice?" "No." Armstrong said, "I now render myself to your Lordship." This is the fact. I never argued to incline the Court one way or another. The King indulged Holloway, but he had that against Armstrong that he could not allow it. It was my duty to demand Judgment of the Outlawry. The Clerk of the Crown will satisfy you fully.—He withdrew.
Sir Robert Clayton.] I observe, Sawyer, before he went out, excused himself by the forms of the Court, "That he asked for Execution but once;" and that, after the Statute was read, and Armstrong said, "He surrendered himself," he sat down and said no more. I take it not for his crime to do his duty, but he ought to have informed the King what was Law; for asking the thing contrary to Law, the crime was charged; he had direction from the King—I think he comes well off to make satisfaction to these poor creatures, his daughters.
Mr Smith.] Sawyer tells the King, "Armstrong ought to have a Tryal;" but does it appear that he offered any thing before the Court had declared? Unless there be farther matter than I see yet, I find him not criminal.
Mr Hawles.] I did persuade this Gentleman (Sawyer) to give these Ladies some Money, and prevent the matter from coming here.
Sir Henry Goodrick.] I hope Sawyer, your Member, may come off; but for a Member to make bargains in point of blood, is a strange thing, and ought to be taken notice of.
Sir John Guise.] We are all about giving them something for the blood of their Father, and it is no strange thing.
Mr Hawles.] I formerly cited the case of Blackwell and Sacheverell. Some say, "I encouraged this matter;" and I have had hard words given me for it. As for Burton and Graham, they only brought Armstrong up, &c. but for an Attorney-General, when he has that office, how comes it to pass that he must leave all rules of common honesty?— I wish this Gentleman had been as nice in spilling blood, as we are in punishing it. This was error in fact, and when so, the Attorney-General ought to consent to reversing the Outlawry, or to the Demurrer. The Statute says that to him, "If he comes in in a year and a day."—The Attorney-General ought to consider whether the fact was true, or not; if not, it ought to be reversed. If you believe Mrs Matthews, Armstrong was condemned before he came into Court; he said, "He is an ill man, and must die." Suppose the King tells the Attorney-General, "That is an ill man, let him be hanged, right or wrong;" he is bound to pursue the interest of his Client, and it was for the interest of the King to preserve his Subjects. He ought to have retracted, and told the Court, there was Error, and he might have had his Writ. If it goes upon the justice of the House, it goes hard with Sawyer, not only as to satisfaction, but something farther.
Sir Robert Cotton.] As Sawyer did his duty to the King, so he did to the prisoner. He asked the Court, "Whether he did surrender himself?" which put both the Court and the Prisoner in mind of it. He pressed not Execution —If that was his duty, he was not to blame for it. He put the Court in mind that there was something in this Surrender. What he said and what he did in Court is only before you; and he did his duty to God, the King, and the Prisoner.
Sir John Guise.] Sawyer has confessed a worse thing than he has been charged with. He told Armstrong, "He had more Evidence against him than against Holloway." If Cotton takes the Evidence right from the Bar, it is of another fort than he mentions it. Sawyer is not accused for prosecuting as Attorney-General, but he might have advised the contrary—Are not Prisoners condemned upon the whole, and not upon the half? The most abominable part of an Attorney-General he has acted. It is a small recompence to the family to have a fine for the loss of a man that might have been considerable in the War. Pray let him be brought into the Bill of Indemnity.
Sir Joseph Tredenham.] The demand of Judgment was not Sawyer's crime. He opposed not the reading of the Statute. I would put no hardships upon persons who serve you in the Courts of Justice.
Mr Foley.] If your Member was not a Prosecutor, I wonder how Burton and Graham came to be so. Did he demand Execution before the twelve months were expired? That is his crime, and you are to judge Sawyer upon that. Armstrong desired the Statute might be read; your Member said, "That will do you no good," for Sawyer pressed Execution; and that is his crime; and things will never be well, till some of that profession be made examples.
Mr Hampden, jun.] I wonder it should be insisted upon "That demanding Judgment should be no Crime." I would demand, whether the Jews were criminal for demanding Judgment against our Saviour? When King Charles I was tried, Sollicitor-General Cooke demanded Judgment against him—(I make no comparison.) But I ask, "Whether nobody can be murdered but a King?" We have a new fort of Monsters in the world, haranguing a man to death; these I call Blood-hounds, that make speeches as long as my stick. Sawyer is very criminal, and guilty of this murder, in my opinion.
Mr Garroway.] I speak to discharge my conscience: I will not have the blood of this man at my door. This Gentleman fled, and was outlawed, and abroad was trepanned by one Everis, who decoyed and brought him off. They had designed his death before he ever came in. There was a year and a day for him to appear, and plead, to reverse the Outlawry. Sawyer demanded Judgment against him, and Execution. I believe Sawyer not so ignorant a man as not to know all this. I believe him guilty of the death of this man; do what you will with him.
Mr Boscawen.] When Armstrong demanded the reading of the Statute, Sawyer said, "That will do you no good." Was not that a perverting Judgment? To have an eloquent Attorney-General tell what is Law! Whoever perverts Judgment, I shall never excuse him.
Mr Smith.] This Gentleman takes a thing for granted that was not so. Sawyer said, "The Statute would do Armstrong no good." I suppose, you will take it for granted, the Gentleman may be mistaken, and understand not Law. Suppose I draw a sword to defend a man, and he be killed, must I be hanged for him? If Sawyer, after the Statute was read, did demand Judgment, I shall pronounce him guilty.
Mr Boscawen.] I appeal to the Long-Robe, whether, on a murder, the wise and children are not good witnesses against a man?
Marquess of Winchester.] As to the mistake, Sawyer said, "He refers himself to the Prints." Pray let them be seen. Sawyer said, "The Statute would do him no good;" and made a long Speech after. This Person is not sit for the King's mercy.
Sir William Williams reads all the Passages in the Print, after reading the Statute in the Court upon the Tryal.
Sir William Whitlock.] I am against all manner of tyrannical proceedings. No man detests this murder more than myself. When he heard the Statute read, not to be convinced!—Would the Judges have been so headstrong to do it unless he had demanded Judgment? I believe Lord Lovelace had been destroyed if Sawyer had not been Attorney-General. You cannot distinguish this without the Judges, face to face.
Sir Christopher Musgrave.] I would know, whether a printed Tryal be Evidence? If you read it, you will make a judgment. I think it not for the honour of the House to read it. If it be no Evidence, why will you read it? You cannot ground a judgment upon what Westminster-Hall will not allow to be Evidence. The Person, Mrs Matthews, who is Evidence, is to have benefit by it. You may have Persons of that Court that can give you legal Evidence. It is said, "That Sawyer refers himself to the Paper;" but the Question is, Whether we can give judgment on it?
Sir Henry Capel.] I desire that Westminster-Hall may not be a rule of Evidence for this House. They are an inferior Court; we, the great Inquest of the Nation. I will not appeal to the Gentlemen of the Long-Robe; every man here has equally his judgment. I think, Sawyer referred himself to the Print; if he himself appeals to it, read it.
Sir William Williams.] The Question is, "Whether the woman is in the right, or the Print? It is said by Trevor, "He was by, and heard it not." A hundred were by; that passes for nothing. The Print is against Sawyer, the Woman against him, and the fact against him; therefore put the Question.
Sir Thomas Littleton.] I am satisfied that every one of these Prints is true, for they are like parts in a play; every body pauses upon his own part, and they sign it. The main thing that affects your Member is not yet touched. Mrs Matthews came with her Father's case to Sawyer, who said, "He must die." If that be really so, and if the Witness speak true, it looks like a designed thing by his answer. The Statute was perverted, and the Court so indiscreet as to say, "Holloway had the benefit of it, for there was Evidence against him." Armstrong was tried in a Cabinet before-hand. The proper Question is, "Whether Sawyer shall be put into the Indemnity, or not?"
Resolved, That Sir Robert Sawyer's name be put into the Bill of Indemnity, as one of the Prosecutors of Sir Thomas Armstrong. And the Question being put, That he be expelled the House; it passed in the Affirmative, [131 to 71.]
Tuesday, January 21.
On the Bills of Indemnity, &c. Instructions to the Committee.
Mr Sacheverell.] I move, that there may be particular names, and not descriptions, for that will be setting them free that are dead, for all the ills they have done, be they dead or alive; and having raised their own fortunes, if they can go off so in that manner, and leave children so great as to be Noblemen, I desire not such families to be great in England. You have given your judgment upon a Member yesterday, and if there be any more-you shall think sit to name in this House, first either declare that none here shall be named, or if there be, that he shall withdraw; for else it is not equal justice—In all Acts of Indemnity there are general Heads, and under them except all that shall be excepted. To bind up your Committee, that their shall be no general Heads, is to bind up your own hands. But if any thing appear before you have done your Bill, I would not be bound up by any binding rule.
Mr Ettrick.] I think you have been well moved to name Persons. Of those that are offenders against the Government you are at liberty to name a hundred, man by man. You spent a great deal of time, the last Session, when you went upon Heads. There were no ill effects in Charles II's time. How many men were there whose bloods cried for vengeance? There was a temper of reconciliation and union; now it is otherwise; we have a War in Ireland and Scotland, and are not satisfied with one another. There is nothing better than a reconciliation.
Mr Dolben.] I am for an experiment, to try now whether we shall have better success in naming Persons. I would name Persons, but I had rather that things found out Persons, but those things are so far from finding out Persons, that you have been forced to seek for Persons without doors, Records and Offices, and with much ado you have found out one of ten Persons concerned. You are desired now to try another way more likely to effect your end than to name Persons. Some, like Cain, bear their brands about them. You will find enough to satisfy the justice of the Nation. I think, the honour of the House is concerned—Here has been a mighty Revolution, an Abdication of the Crown, &c. and still you find not out the Persons who were the occasion of all this. Instances of the late malversations are numerous. If you go the same way, you will have no more success this Session than you had last. The way proposed will be more successful, because more expeditious: I believe it, and move it.
Mr Peregrine Bertie.] I move, That Sir William Williams may be excepted in the Indemnity.
Sir Edward Hussey.] I second it.
Sir John Lowther.] It is well moved, to proceed upon Persons, and not Crimes; the objection against it is material; it may be thought by it to excuse the dead; the greatest criminals you have are dead. There may be Persons found hereafter not yet found. Sure you will set Persons at ease at last! I hope you will put the Question, and every Gentleman will agree to it.
Mr Howe.] There is great expectation from abroad of what we shall do in the Indemnity. I hope you will not put revenge beyond your justice. If it appears that, in the last Reign, there was nothing done illegal, and that men were not driven out of their places that would not comply with Popery, &c. and by taking away Charters, to pack Parliaments and Juries to murder Lord Russel, and acquit Count Coningsmark (fn. 1); from whence comes the choice of such men, to return Juries and Votes in chusing Parliament-men, and from whence have proceeded all the Murders and Imprisonments? I know no man in the House that has occasion of an Indemnity, but I hope not to see as formerly that vitia in Senatum veniunt.
Sir Robert Cotton.] I am for coming to an end, and that you cannot do till you have named Persons you will except. But by this way of debating crimes at large, you will sit to little purpose to arrive at your end.
Sir Robert Napier.] Some do not like the taking away Charters; that came malum ab aquilone; nor Regulators— But if you take particular Persons that carry the mark of Cain upon them, name them. There were men that sailed with every wind; one has been named, (Williams,) and I desire he may withdraw.
Sir John Guise.] Things are Evidence. You have before you a Motion for Williams to withdraw. I wonder that you name one, when there are more as well as he.
Sir Henry Goodrick.] If I have a mind to name them, I have courage and heart to do it, but I am not compelled to name them.
Sir John Guise.] I hear of quieting mens minds, and that this punishment will quiet the minds of some people. You owe it to justice to punish great offenders. Here is that High Commission Court; let that enquiry be Instructions to the Committee; you will see who they are, and there you may select such as are fit to make examples. That of Corporations too, both prosecuting and betraying Charters. The thing has been thrown from one to another; let the things speak themselves. The Lords have sent you Evidence; I believe, it is in your hands, it is an Evidence, a Record, and I desire it may be read.
The Speaker.] By Order of the Lords, their Clerk delivered some Papers to your Clerk; there was a Message expected with it, and therefore I acquainted not the House with it.
Sir Henry Goodrick.] When Papists, nay a Jesuit, sat in Council, and since, by form of Law, they have cut mens throats, I cannot come to a determination till we have purged our own House. Where there is a full proof, and full Evidence, I will spare no man. But if you go generally, it may raise such consternations, that possibly there may be no safety for us to sit here, and, if settled, it will make men easy.
Sir Thomas Lee.] I would forget and forgive. But seducing and exposing all England to the rapine of the Jesuits, they cannot sit here who have betrayed the Nation— The late King sat safely when his Council told him it was Law. I move, that that may be taken first into consideration. I do recommend heartily not to proceed in general terms. Where there are faults, and those evidently proved, I would have them punished, but not to involve all England.
Col. Birch.] As to the work before you, if you will not let things find out Persons, you will not have done in a year; but the thing is to purge your own House. I am against it, and I desire you will proceed according to the Orders of the House. It is said, "Every body knows whom he means;" but I do not. There was a Member expelled yesterday, though but glanced at, and no proof— I have heard Members charged, but then the Person that charges, stands up and declares he will make it good; that being done, the accused stands up and makes his defence; but before proof he is not to withdraw. This is the ancient usage of Parliament, and I am ready that any body take up the first stone, and throw it at me.
Mr Foley.] What moved this Instruction to the Committee of the whole House, I understand not, nor to what end this Motion was made. Are you resolved that men should escape, because you know not their names? I am against the Question, and I would have the Committee proceed as they think fit.
Mr Sollicitor Somers.] It is absolutely necessary that some should be punished, for vindicating the King's honour, and to justify without doors what we have done. The Motion was made to except no other general crimes than what are already excepted; the reason was, because there is the same exception in this, as in other Pardons; but this turns quite another way. In the Bill of Rights, you did consider offences there enumerated, &c. Men will find out crimes to undo Kingdoms by new ways; therefore, unless you make new Punishments, how will they be met with? Murders and Rapes are easily done, but it requires learning and invention to subvert Laws and Government? Is it only Murders, Felonies, Rapes, &c. you are to prevent? You will make sorry work else with them that occasioned the Abdication of King James. Whenever you name Persons, must not you name offences at last? You will spend as much time one way as the other but it is of infinite consequence that the crimes be stated, else the next age will not know why you have punished Persons. Upon the whole, if you will have the World see the Crimes you have punished, you ought to leave it entirely to the Committee. State the Heads, and leave it to them to adapt Persons to it.
Mr Hawles.] I have a great value for the Common-Law, which never enquires into Murder till you find it a Murder, nor a Robbery, till it be found so. I am clearly of opinion, that else you will run into great absurdities; as in the Bill of Corporations, &c. the Judges ran up fines from 1000l. to 40,000l. Then you took other methods; as in R. II's time, there were Judgments against Judgments, and for some hundreds of years you heard no more of them. Go to that which is the most crying sin, the delivering up of every man. Persons have been irregularly executed. When a man is put into power, they make him do what they list. A Person was kept out a good while that sat in your Chair, (Williams;) at last they brought him in; he sat in your Chair, and acted for you, and afterwards was fined 10,000l. for it, and was afraid that his life would have been taken away; if he owns that, I hope you will pass him by. Except as few as you can in the Bill, but it is the readiest way. Charters, and the Dispensing Power, were but the consequence of the former.
Mr Garroway.] I am against naming Persons till you have agreed to things. I never heard of a Person accused here, but he found somebody to excuse him. They that do not like the thing to be punished, let them go upon another Head. But since your last sitting, there has been such management, that if it be not punished upon another Head, I see a melancholy prospect of our safety; since the King does not know the Persons that have abused him. Find out things, else you will never find out the Persons, nor come at them as long as you live. If you will go upon Prosecutors, go upon all, and find them out by what they have done.
Col. Austen.] It seems to me a natural way to go upon things. Suppose I find who was most obnoxious, and has led you out of the way of the Government, is there any difficulty then to name Persons? Therefore, for the ease of the Committee, give directions to come to Persons by things, and then I am for as few as you please; and not from things to Persons.
Sir Robert Howard.] I think an Act of Indemnity is expected, and I acknowlege that all Revolutions, (though this is one of the strangest) have been followed with an Indemnity. To propose a censure on Persons, and not tell you why, is very strange.
Major Wildman.] To me it seems strange, that any Member should name a Person that ought to be excepted, before crimes are stated. The matter is worthy of great consideration, what sorts of crimes you will make examples to all futurity, by naming a man for some sort of crimes where he may be involved in the usual way of mercy— But some are involved in one thing, some in another, that cannot be proved till we see crimes. It is not our business to consider an Act of Indemnity for crimes punished by ordinary course of justice, but of murders in form of Law; to tell the King who must die, this crime the common Courts of Justice cannot punish. For subverting the Law, &c. the Gentlemen of the Long-Robe of this House would be hard put to it to form an Indictment against such a Person. A Parliament may judge Common-LawTreason; and an intention to subvert the Government, endeavours to subvert the Laws and Liberties of England; the Parliament declares what that crime is, and then you find out the Persons that committed them. How can a man find out the occasion of the Prince of Orange's coming hither to deliver us from arbitrary Government and Popery? No man can take upon him to destroy the Liberties of this House, and judge it in Westminster-Hall. Let every one agree a crime to be excepted, and then you will easily bring Persons under that Head. I do not intend (upon explanation of myself) that I would have you declare what crimes you will not except, for the Heads of offences are numerous.
Serjeant Maynard.] I think, the less Instructions you give the Committee, the better you will proceed. Those that would have perverted our Souls and Estates, have been against our Religion, Laws, and Liberties. As for those that anciently did go to subvert and overthrow a Government, a common Judge had nothing to do with it, but it was referred to the Senate of the People. The Archbishop and the Bishops were brought to Tryal by a Jury, at the King's-Bench Bar, for a modest and dutiful Petition to the King, to be made a Libel. Some have made a matter of excuse for the Judges, "That they were convened to tell the King what might be done by Law, and made excuse, as in H. IV's time, that it was for fear of death;" but a man ought not to save his life by subverting the Laws, who is sworn to maintain them. But that served not their turns then for an excuse. As for the Chatters, &c. no man can doubt but they are highly guilty that would have subverted Law and Parliament. There was a call of Serjeants and Judges for that purpose. Whenever this comes to a Committee, I would not give general Instructions, for you will bring in a multitude of Persons. I concur to name Persons with their Crimes. The Tryal-Book is no Evidence: God forbid any man should be hanged by a Book!
Mr Harley.] Upon the Instructions I confess my ignorance, therefore I desire to be informed, whether you will except Persons without Crimes? Will not you adjudge Crimes for Persons to be excepted out of the Indemnity? If you take Persons at random, possibly you may not take them that are most guilty.
Mr Attorney Treby.] You are upon a strange Motion, to my understanding, Instructions to a Committee. I remember not that ever done to a Committee of the whole House—I am not an advocate for the times of Usurpation. The family I come of adhered to the Crown —As I have suffered in Charles I's time, I abhor those on the scassold with vizards, and those that sat in the Court of Justice. The more latitude you give your Committee, the better you will do your work—I would rather except Persons by name, but then you must do it by that way that some would preclude your Committee from. You except them from pardon, and reserve them for hearing. Those who would establish Popery I would not name, because they are in the dark. Those urged the Prosecution of the Bishops, and the dispensing with the Oaths and Test; they were great enormities, but destroying Corporations was the Mother-Treason that brought forth all these. If the Judges had not so much Law, they had so much wit as would have told them the thing you fear; viz. "Your judgment will destroy Parliaments: You dispense with thirty or forty Statutes."— The most mercenary Judge in Westminster-Hall would not have had the courage to do this, they would never have done it, but they thought themselves Parliamentproof.—"It is but nominal, [they said,] not real—only a number of packed malefactors, like yourselves, and no danger from them." I can no more endure that these should be pardoned, than to set all the jails in England open, to let loose rogues and malefactors. He that would have these pardoned, let that Gentleman stand up next after me, and say so. There have been ill things in Court, but much worse out of Court. They tried Holloway, because they had Evidence; against Armstrong they had none. It is confessed, that we granted Holloway Tryal, there was enough against him: There was the virtue of that good man Sawyer. Against Armstrong we had nothing; therefore try him upon the Outlawry; and he was hanged without Tryal. Some are in the dark, no man knows their names; but except them upon that—It is reasonable that there should be no cramping a Committee; let them go into it, without farther Instructions.
Mr Sacheverell.] Now it is manifest, that, if you go upon Persons, and not things, you may as well say you will neither go upon Persons nor things. If you put the Question for general Instructions, that may be something, but if you put it as now, the whole House sees the meaning of it.
Mr Hampden.] We all mean very well. You had a Question proposed. I never saw such an one go abroad before. If one questions for Persons, and not things, then those Persons are put to the Question, Whether they shall be punished? For what? For nothing. Another desires it may be proved upon Persons; for what? For Crimes, sure. These kind of Questions are strange, Were it not more clear to name your Crimes? And then we may the more impartially give judgment. In all Courts, in all Judicatures, they say, "Here is the Law, and here is the fact, and then try if the Persons be guilty of this fact." A man to be tried, and to be guilty of a crime which is not defined! No Question that has been proposed is sit to stand upon your Books, Every body means well, but not well expressed.
Mr Smith.] I take every Gentleman's Intentions to be sincere; but whether shall there be a general exemption, or not? I believe there are People in the dark that deserve Exceptions. You have not yet found out the Persons who advised these Ecclesiastical Commissions. You see only the Actors. These things were done, and People never knew the Authors, and, unless you prevent these private Orders, you may have them for the future; and as long as Persons fit in the Lords House that are accused of these things done in the dark, (Lord Halifax) I shall never think we are safe.
Upon Exceptions taken at some words,
Lord Falkland.] I did say, that Arnold said, "That from the Abdication of King James, to the pardoning those rogues that gave up the Charters, they had always given ill Votes." I should not have taken notice of this, if I had not too much reason to believe there has been too much notice taken of what has been said in this House abroad.
Mr Arnold.] If the Gentleman had taken all I said, I applied it to those out of this House, perhaps to those of the Devil-Tavern Club, but I applied it not to Members of the House.
Sir John Trevor.] I am not for this; it is not the way, to be in heat; this is not Indemnity; at this rate, we shall want Indemnity here. Some things carry Pardons in themselves. I desire Pardon and Pity. In H. VI's time, some great Peers contended for Precedency without doors, because it was so in the Lords House. They were ordered to shake hands, and be friends, and go on with the business of the Kingdom I would do so now
[The previous Question for proceeding on the Bills, by nominating of particular Persons, passed in the Negative, 190 to 173.
Wednesday, January 22.
On a Petition from Sir Thomas Pilkington, Lord Mayor of London, and others, who were fined on pretence of a riot at the Election of Sheriffs for the City of London in the year 1682 (fn. 2).
Sir Thomas Clarges.] I advise, that this judgment against my Lord Mayor, and others, may be reversed by Writ of Error. Where will this end, to bring these things into Parliament, which may have remedy elsewhere? What a flood will you bring upon yourselves in these things? The troubles began not in the times of these Gentlemen. I doubt, whether there have been any lawful Sheriffs of London these seven years, ever since the Charter was taken away. We have had great Revolutions, a King abdicated, great Wars upon us, and why should these things be brought upon us to trouble the People? I cannot enumerate the consequences. This will be an occasion of great inconveniences upon us. In the late Usurpation, Lord Capel, Lord Holland, Col, Penruddock, and others, were murdered, and yet those who sat upon them were pardoned; only some few examples were made, of the most execrable, for quieting the minds of the People. At this rate, we shall be a Court to give damages out of one man's estate to another. I would reject the Bill.
Sir Henry Capel.] I observe, that arguments are used against this Bill from the Indemnity in 12 Charles II, which was occasioned by a time of great misery; but that was not this Case; it was then a Civil War, brother was against brother. That Case is out of doors. It is said, these Gentlemen may find remedy in Westminster-Hall. If that was the Case, (as it is not) I think this House has the liberty, in such a case of importance, to take notice of it. You have been told what was done in the time of Lord Shaftsbury, and in Mr Bethel's, but it was Lord Russel's Case then, and now it is time to make an example.
Sir John Guise.] You are told, "We must be guided by the Indemnity in Charles II's time." I hope we shall ever be at liberty of judging whether things are well or ill done. There has been something said by a Member that a little surprizes me, "That if you bring a Bill to do right in this Case, a Court may be erected to give damages out of one man's estate to another." There are crimes that excell others; do you know any thing of a greater degree than this? Where was there more violation of the Laws, than in taking away Charters? And where more of Charters than London? If you will go upon Matters, and not Persons, must not this of Charters be one? There are mixed Cases in these things upon the Public, and upon Persons. This is an extraordinary Case, and there must be such remedies applied, that no such thing shall be dared to be attempted for the future.
Mr Hawles.] I have some reason to understand this Case. I had leave from this House to attend the Lords in this Case, to reverse this judgment by Writ of Error, If the King must give this damage, (at whose fuit it was) you must give it him again. Will you make satisfaction in the Bishops Case? I am for that too, to every Person concerned. There is no remedy but here, and I am for retaining the Bill. A Parliament was anciently called every year, or oftener. The Parliament then was a Court of Justice, to relieve on extraordinary occasions. There were Juries over-awed by Judges; Bethel and Cornish took another course, to find honest men; this was complained of, and they must have new Juries and Officers, and Lord Russel suffered upon it. You have the Indemnity of Charles II mentioned—This is not a Bill of punishment, but a Bill of satisfaction, to value wrongs they have done; and you may pardon them for the crimes. If you ask the value of the affection of father and children, they cannot tell what they are; go as far as you can, if these are faulty, and the Petitioners may come for satisfaction. It is a reasonable Bill, and I hope you will accept it. Would you have a return to what you are delivered from? It is a just Bill.
Mr Hampden.] We have a great matter before us in Debate, because it is so extraordinary. This matter, it is true, does relate to a common indemnity; but, I think, it is not promoted by justifying every thing that has been done, nor punishing, but to prevent, for the future, the same thing again; and that, if there be not this Bill to deter men, they may fall into the same offences. Some men call this "A punishment," and some, "A reparation," but it is in a sense both. Some satisfaction and reparation ought to be made these Persons according to natural justice, but it is one thing what a man in conscience ought to do, and what you compell him to do; it is one thing what a man in strict justice is bound to—To make men pay a sum by such a Law, I cannot readily consent to it; I have heard nothing fully to satisfy me. This, truly, is an injury done, and, in conscience, they are bound to make reparation. That of Armstrong was a just judgment of reparation. Corruption is not taken in that limited sense of "Taking Money": Corruption is taking a place of 1500l. per ann.—In a common case, brave men, soldiers, condemn a man for delivering up a castle, or fort, because he is afraid to keep it; and they should have known that before he undertook to keep it. There needs not Common-Law, nor Statute-Law, in the matter; it is against common sense—If you say there is no other Law, you will quickly be distinguished out of all your Liberties. I am of opinion, therefore, "That the Petition for leave to bring in a Bill to make reparation to my Lord Mayor, and the rest of the Petitioners, from Sir Peter Rich, and others, do lie upon the Table;" but not to go barely off so, for they have done notoriously, and I cannot believe that men, able to make a common bargain, should give up their sense and reason in that manner. This was not done only against the City of London, but against the whole Kingdom, and if you are not bound to give particular reparation to the Persons injured, you are to the Public, and, in the mean time, to remove the Person, Sir Peter Rich, from your company.
Sir Christopher Musgrave.] When a Bill is brought in for satisfaction of injury done, it is strange that a Gentleman should start another Question. If you talk of removing People, it is a strange thing. Keep us to a Question. This Petition sets out "that the Petitioners can have no remedy in the Exchequer," and you are told of the prudence of it. Will it be an act of prudence to give reparation, when they may have it out of the Exchequer? The Question is, Whether they shall have a Bill, or not a Bill?
The Petition was read, and Musgrave was mistaken in the contents.
Sir Robert Rich.] I see nothing in the Petition as is alleged. I see, Virtue is Virtue still, though it wants encouragement. It is plain, the Petitioners can have no remedy but here, but by an innuendo; therefore pray put the Question.
Serjeant Maynard.] If these Gentlemen will thrust themselves into the Office of Sheriffs, and have made returns, they have meddled with what they had nothing to do— Whether rightfully Sheriffs, or de facto only, that alters the case. Whenever you will have justice against the King, you must go to the Exchequer for it—Never so much injury, and no remedy there!—When they come there, the Barons are bound to give judgment in restitution—Their only way is to send out a Writ to the Tally-Office to pay the Money. Upon the whole matter, leave them to have their liberty to have an Action at Law.
[The Question for bringing in a Bill to make reparation to the Lord Mayor, and the rest of the Petitioners, out of the Estates of the Persons mentioned in the Petition, was carried in the Negative, 169 to 152.]
The Compiler was absent the rest of the Session, [which ended January 27 (fn. 3), when his Majesty, after passing several Bills, pro rogued the Parliament to April 2, 1690, but, on February 6, it was dissolved by Proclamation (fn. 4).]