House of Lords Journal Volume 14: 12 July 1689

DIE Veneris, 12 die Julii.

Domini tam Spirituales quam Temporales præsentes fuerunt:

PRAYERS.

Marq. de Halyfax Speaker pro Tempore.

Bp. of Bangor takes the Oaths.

This Day Humphrey Bishop of Bangor took the Oaths, and made and subscribed the Declaration, in Pursuance of the Statutes in that Case provided.

Vaughan, Mole, and Elliot, at the Bar.

This Day being appointed for Captain Henry Vaughan, Captain Fredericke Mole, John Elliott Doctor in Physic, to put in their Answers to the Impeachment of the House of Commons, of High Treason, and other high Crimes and Offences; they were brought to the Bar, by the Gentleman Usher and the Keeper of Newgate.

And, kneeling, the Speaker asked them, "Whether they had their Answers ready?"

Then they presented their several Answers, which were read:

"The humble Answer of Captain Henry Vaughan, now Prisoner in Newgate, to the Articles of Impeachment of High Treason, and other high Crimes and Offences, exhibited to the Lords Spiritual and Temporal in Parliament assembled against the said Captain Henry Vaughan, and others therein named, whereof he stands impeached by the Knights, Citizens, and Burgesses, in Parliament assembled, in the Name of themselves and of all the Commons of England.

Captain Vaughan's Answer to his Impeachment.

"The said Henry Vaughan, in the First Place, protesting his Innocency of and from all the Treasons and other Crimes and Offences whatsoever in the said Articles contained, and no Way acknowledging, granting, or admitting, all or any the Clauses, Articles, or Matters in the said Articles of Impeachment contained or specified (so far as the same any Way concerns him) to be true, as in and by the same Articles of Impeachment is supposed; and humbly craving, that all Benefit and Advantage may be saved to him of excepting to the Generality, Uncertainty, and Deficiency of the said Charge, as likewise the Benefit of having and relying upon your Lordships great Judgement, whether the Crimes and Offences so imposed upon him by the said Impeachment do, by the certain and known Laws of this Realm, so renowned for Right and Justice, amount to the high Crime of Treason: Which being prayed, and, as he hopeth, being granted; for Answer thereunto he faith, That he is not, nor ever was, guilty of the said Treasons, Crimes, and Offences, or of any or either of them, of which he stands charged by the said Impeachment; and for his Trial thereof putteth himself upon, and humbly submitteth to, the Judgement of your Lordships; whose Justice he doth, and always shall, rely upon, and therein acquiesce.

"Henry Vaughan."

"The humble Answer of Captain Frederick Mole, now Prisoner in Newgate, to the Articles of Impeachment of High Treason, and other high Crimes and Offences, exhibited to the Lords Spiritual and Temporal in Parliament assembled, against the said Captain Frederick Mole, and others therein named, whereof he stands impeached by the Knights, Citizens, and Burgesses in Parliament assembled, in the Name of themselves and of all the Commons of England.

Capt. Mole's;

"The said Frederick Mole, in the First Place, protesting his Innocency of and from all the Treasons, and other Crimes and Offences whatsoever, in the said Articles contained, and no Way acknowledging, granting, or admitting, all or any the Clauses, Articles, or Matters, in the said Articles of Impeachment contained or specified (so far as the same any Way concerns him) to be true, as in and by the same Articles of Impeachment is supposed; and humbly craving, that all Benefit and Advantage may be saved to him, of excepting to the Generality, Uncertainty, and Deficiency of the said Charge, as likewise the Benefit of having and relying upon your Lordships great Judgement, whether the Crimes and Offences so imposed upon him by the said Impeachment do, by the certain and known Laws of this Realm, so renowned for Right and Justice, amount to the high Crime of Treason: Which being prayed; and, as he hopeth, being granted; for Answer thereunto, he saith, That he is not, nor ever was, guilty of the said Treasons, Crimes, and Offences, or of any or either of them, of which he stands charged by the said Impeachment; and for his Trial thereof putteth himself upon, and humbly submitteth to, the Judgement of your Lordships; whose Justice he doth, and always shall, rely upon, and therein acquiesce.

"Fredrick Mole."

"The humble Answer of John Elliott Doctor in Physic, now Prisoner in Newgate, to the Articles of Impeachment of High Treason, and other high Crimes and Offences, exhibited to the Lords Spiritual and Temporal in Parliament assembled against the said John Elliott, and others therein named, whereof he stands impeached by the Knights, Citizens, and Burgesses in Parliament assembled, in the Name of themselves and of all the Commons of England.

and Dr. Elliot's.

"The said John Elliott, in the First Place, protesting his Innocency of and from all the Treasons, and other Crimes and Offences whatsoever, in the said Articles contained, and no Way acknowledging, granting, or admitting, all or any the Clauses, Articles, or Matters, in the said Articles of Impeachment contained or specified (so far as the same any Way concerns him) to be true, as in and by the same Articles of Impeachment is supposed; and humbly craving, that all Benefit and Advantage may be saved to him, of excepting to the Generality, Uncertainty, and Deficiency of the said Charge, as likewise the Benefit of having and relying upon your Lordships great Judgement, whether the Crimes and Offences so imposed upon him by the said Impeachment do, by the certain and known Laws of this Realm, so renowned for Right and Justice, amount to the high Crime of Treason: Which being prayed; and, as he hopeth, being granted; for Answer thereunto, he saith, That he is not, nor ever was, guilty of the said Treasons, Crimes, and Offences, or of any or either of them, of which he stands charged by the said Impeachment; and for his Trial thereof putteth himself upon, and humbly submitteth to the Judgement of your Lordships; whose Justice he doth, and always shall, rely upon, and therein acquiesce.

"John Elliott."

Vaughan, Mole, and Elliot, remanded to Newgate.

The Articles being read, the Lord Privy Seal asked Captain Henry Vaughan, John Elliott Doctor in Physic, and Captain Freder'ek Mole, "If they had any Thing further to offer?"

They answered, "No."

And were bid withdraw.

Which they did; and were remanded to Newgate.

Bill for reversing Judgements against Oates.

The Lord President reported from the Sub-committee the Bill, intituled, "An Act for reversing Two Judgements given in the Court of King's Bench, against Tytus Otes Clerk; wherein they have made several Amendments, and added a Proviso drawn by the Judges."

Which Amendments and Proviso were read, and then read one after the other, as follow:

"3 Press, 29 Line, After the Word ["erroneous"], read ["unprecedented, and so"]; and after ["illegal, and are of ill Example to future Ages"], read ["that the Practice thereof ought to be prevented for the Time to come"]."

The Question was put, "Whether to agree to this Amendment?"

It was Resolved in the Affirmative.

"34 Line, After ["King's Bench"], leave out these Words ["and the Judgements given on the said Writs of Error"]."

The Question was put, "Whether to agree to this Amendment?"

It was Resolved in the Affirmative.

"37 Line, After the Word ["Judgements"], add ["in the Court of King's Bench"]."

The Question was put, "Whether to agree to this Amendment?"

It was Resolved in the Affirmative.

"37 Line, And after the Word ["defaced"], leave out ["any Thing to the contrary thereof in any Wife notwithstanding"]; and read, ["And it is hereby further Enacted, by the Authority aforesaid, That it shall not be lawful, at any Time hereafter, to inflict the like excessive Punishments again on any Person whatsoever"]."

The Question was put, "Whether to agree to this Amendment?"

It was Resolved in the Affirmative.

Then the following Proviso was read:

"Provided always, and be it hereby Enacted and Declared, by the Authority aforesaid, That until the said Matters for which the said Tytus Otes was convicted, as aforesaid, for Perjury, be heard and determined in Parliament, that the said Tytus Otes shall not be received, in any Court, Matter, or Cause whatsoever, to be a Witness, or give any Evidence; any Thing in this Act in my Wise contained to the contrary notwithstanding."

The Question was put, "Whether to agree to this Proviso?"

It was Resolved in the Affirmative.

Protests against Amendments and Proviso to it.

Leave was given to any Lords, to enter their Dissents; and these Lords following do enter their Dissents, for these Reasons following:

"We, whose Names are subscribed, do dissent to these several foregoing Questions, for these Reasons:

"To the First:

"Because we are of Opinion, That the Judgements given in the Court of King's Bench against Titus Oates are altogether illegal and cruel, and not capable of being qualified in Justice or Law (by the Words "unprecedented, and so cruel and illegal that the Practice thereof ought to be prevented for the Time to come"); but ought plainly to be declared positively against Law, Justice, and the undoubted Right of the Subject.

"To the Second:

"Because we are of Opinion, That no Merit or Demerit of any Person appealing to the House of Lords, or bringing thither a Writ of Error, ought to have any Weight with the Lords in giving Judgement; and therefore no Reason why the said Judgements ought not to be reversed by the Legislative Power, since the Supreme Court of Judicature (the Lords in Parliament) is the utmost Resort any Person can have for Justice, except the Legislative Power.

"To the Third:

"Because we are of Opinion, That barely saying ["it shall not be lawful at any Time hereafter to inflict the like excessive Punishments again"] is not strong enough to deter a corrupt or partial Judge from practising the same, because it is without a Penalty upon such Judge; and barely the Transgression of a Law, not made penal, can amount to no more, for Punishment, than a moderate Fine; and there is no Doubt but all Judges will be hereafter cautious of setting great Fines, since, of late, the Subject in that Point has been so grievously oppressed, as does appear by several exorbitant Fines annulled in this present Parliament.

"We also enter our Dissent to the Proviso, for these Reasons:

"1. Because no Man ought, by the Laws of England, to be punished unheard; and though the Parliament has Power, in all Things possible, in its Legislative Capacity, yet, by all Rules of Law and Justice, no Man ought to be oppressed merely arbitrarily; and in this Case it seems to us to be so, for the other Part of the Bill reverses Two illegal and unjust Judgements against Titus Oates in the Court of King's Bench, affirmed upon Writs of Error brought to reverse the same; and this Proviso, without hearing him in his own Defence, enacts. Titus Oates to be a Man uncapable of being a Witness, which, we conceive, is more Infamy than being a Slave.

"2. The Proviso, as it is penned, that it may have a Shew of Justice, seems to give him, the said Titus Oates, a Liberty to clear himself; but, in Reality, it is impossible for him ever so to do; for if it be meant that the Matters for which the said Titus Oates was convicted of Perjury must be heard and determined in Parliament, in a Legislative Way, there is no Need of this Proviso; but if it be meant that the said Matters for which he was convicted of Perjury must be heard and determined by the House of Lords in Parliament, then (besides that it may seem to cast a Reflection upon the Proceedings of the House of Lords, in affirming the Judgements given in the King's Bench against him without hearing him) there will be Two insuperable Difficulties; one is, that by the Rules and Practice of the House of Lords, as a Court of Judicature, the Lords cannot call for the Matters and Evidence concerning the Two Verdicts, nor can Tytus Oates bring that before the Lords in Judicature; the other is, in case the Lords in Judicature should call for the same, or Titus Oates should bring them before the Lords in Judicature, and the Lords proceed thereon to give Judgement, it is by us conceived that it would be an original Cause, and therefore not to be proceeded upon.

"3. If Tytus Oates cannot acquit himself of Perjury, as this Proviso seems to give him Liberty to do in the House of Lords, he can never bring it into any inferior Court.

"4. Last of all, we conceive that the refusing to condemn the Verdicts brought against Tytus Oates in the King's Bench, does condemn at the same Time the Credit of the Popish Plot, which was affirmed by so many Votes in several Parliaments, and caused so many Addresses to the King concerning it, since the First Discovery of it was upon this very Evidence for which he was convicted (though by a packed corrupt Jury, by the highest Oppression, and by a former Jury in the same Case acquitted) of Perjury.

"Bedford.
Sussex.
Vaughan.
Newport.
Stamford.
Charles De Berkeley.
Suffolke.
Montagu.
Maclesfeld.
C. Cornwallis.
Pagett."

"Against the Amendment, Line the 34, After ["the King's Bench"] leave out ["and the Judgements on the said Writs of Error"]. 37 Line, After the Word ["Judgements"], add ["in the Court of King's Bench"]:

"Because it is altogether unintelligible to us, how we can reverse the Judgements in the King's Bench as erroneous and illegal, and yet so industriously pass by the Judgements given in this House that affirm those illegal and erroneous Judgements, by rejecting that Clause in the Bill brought up from the House of Commons that reverses that Judgement also.

"Against the Proviso:

"Because the Title and Intention of the Bill is to reverse the Judgements against Titus Oates; but this Proviso makes it firmer and heavier than ever, as much as an Act of Parliament is of more Weight than the Sentence of any Judicial Court, and the Infamy of Perjury a greater Punishment than any Thing barely Corporal.

"Because we think we cannot justify to the World, or our own Consciences, such a Compliance for the Judgements of prosligate Wretches set up for Judges in Westm. Hall, as that in the same Act wherein we are forced (upon undeniable Reasons, manifest to the whole World) to annual their Judgements as illegal and erroneous, we should yet retain and fix upon him, who hath already suffered by it, undue and unheard of Punishments, the severest Part of a confessed illegal Sentence.

"Because we cannot consent that this House, which hath been always looked on as the Seat of Justice and Honour, should come under the Obloquy of a Place where Men are condemned first, and tried afterwards; which we cannot see how to avoid, if, according to this Proviso, we lay Doctor Oates presently under the Condemnation of Perjury, until the Matters of that Perjury shall be heard and determined hereafter.

"Because, supposing him guilty, we being by no Forms of Justice obliged to condemn him, we think it Prudence not to give an Occasion to be thought apprehensive of his Testimony, by taking this new and unheard-of Way of depriving him of it.

"The Case of any Man living: The Condemnation of Perjury ought not to be laid on Titus Oates before a fair and full Hearing; for that it was so much the Labour of the Enemies of our Religion and Liberties (who in this Matter knew well what they did) to advance their Designs by invalidating his Testimony, the Credit of which was in vain attempted by solemn Trial, till the Irregularities of the last Reign, and the Way to corrupt Judges and Juries to their Purposes; we therefore fear, we may be accused of outdoing the whipping Precedents of Westminster Hall, in consenting to condemn without Hearing or Trial.

"Because we cannot consent this Hardship be put on His Majesty, either to reject a Bill offered Him by both Houses, which hitherto He hath not done, or else in a most solemn Way to lay a Man under the Condemnation of the most detestable Crime, without any Knowledge of it; an Injustice nobody can advise Him to, to advance His own Interest, much less for the promoting that of His Enemies, who always did and do think themselves concerned to discredit the Opinion of the Popish Plot, to which this seems to have a great Tendency.

"Because we cannot consent to fix on any one the Condemnation of Perjury, by Act of Parliament, upon bare Surmise, before a Hearing, were it for no other Reason but that those who have Proofs may, by an orderly Course of Law, convict him. To condemn Oates of Perjury, until it shall be heard and determined in Parliament, is to condemn him for ever, and unheard. For how, after this, can it come judicially before us? There lies no Indictment in the House of Lords, nor Writ of Error, when the Record is vacated; so that it is utterly impossible for Titus Oates to receive any Benefit by a Remedy, seemingly provided for him, by Act of Parliament.

"Monmouth.
Montagu.
Oxford.
Suffolke.
Maclesfeld.
Herebert."

Bill for reversing Judgements against Otes.

Hodie 3^a vice lecta est Billa, "An Act for reversing Two Judgements given in the Court of King's Bench against Titus Otes Clerk."

The Question was put, "Whether this Bill, with the Amendments and Proviso now read, shall pass for a Law?"

It was Resolved in the Affirmative.

Duty on Tea, Coffee, &c. Bill.

Hodie 1^a vice lecta est Billa, "An Act for collecting the Duties upon Coffee, Tea, and Chocolate, at the Custom-house."

Attainting Persons, Bill.

Hodie 1^a vice lecta est Billa, "An Act for attainting several Persons now in Rebellion against Their Majesties."

Conference on the Bill concerning the Succession to the Crown, &c.

The Managers of the House of Commons being come into the Painted Chamber, ready for the Conference; this House named these Lords, to report the Conference:

The Lords went to the Conference, the House being adjourned during Pleasure.

The Conference being ended, the House was resumed.

Report of it.

Then the Duke de Bolton reported the Effect of the Conference; which was, "Concerning the Amendments which their Lordships made in the Bill about the Succession to the Crown, the Commons do agree to some of those Amendments, and to others they agree with some Amendments; and other Amendments to be left out."

The Amendments were read Once.

Message to H. C. with the Bill to reverse Judgements against Otes; and to communicate the Answers of Capt. Vaughan, &c.

A Message was sent to the House of Commons, by Sir Miles Cooke and Sir Adam Oately:

To deliver to them the Bill for reversing Two Judgements given in the Court of King's Bench, against Tytus Otes Clerk; to which the Lords agree, with some Amendments; and have added a Proviso, to which their Concurrence is desired.

2. To communicate the Answers of Captain Henry Vaughan, Captain Frederick Mole, and John Elliott Doctor in Physic, to the Impeachment of High Treason, and other high Crimes and Offences, brought up from the House of Commons against them.

Adjourn.

Marquis de Halyfax, Orator Procerum pro Tempore, declaravit præsens Parliamentum continuandum esse usque in diem Sabbati, videlicet, 13^um diem instantis Julii, hora decima Aurora, Dominis sic decernentibus.