Journal of the House of Lords: Volume 19, 1709-1714. Originally published by His Majesty's Stationery Office, London, 1767-1830.
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DIE Martis, 14 Martii.
E. Rivers takes the Oaths.
This Day Richard Earl Rivers took the Oaths, and made and subscribed the Declaration, and also took and subscribed the Oath of Abjuration, pursuant to the Statutes; having first delivered a Certificate of his receiving the Sacrament, and his Witnesses sworn and examined to the Truth thereof.
E. of Wemyss et al. Bill:
Hodie 3a vice lecta est Billa, intituled, "An Act to confirm Articles of Partition made between the Earl and Countess of Wemyss of the one Part, and Anne Robinson Spinster of the other Part, of their Estates, in the Counties of Oxon, North'ton, and Kent; and for vesting their respective Moieties in Trustees, to be sold."
Message to H. C. with it.
Hodie 1a vice lecta est Billa, intituled, "An Act to enable the Trustees of the last Will and Testament of Thomas Hobbs Doctor in Physic, deceased, with Abraham Weekes Esquire, to make a Jointure upon the Wife of the said Abraham Weekes."
Upon the First Reading of the Bill, intituled, "An Act to enable the Trustees of the last Will and Testament of Thomas Hobbs Doctor in Physic, deceased, with Abraham Weekes Esquire, to make a Jointure upon the Wife of the said Abraham Weekes:"
It is Ordered, by the Lords Spiritual and Temporal in Parliament assembled, That the Consideration of the said Bill shall be, and is hereby, referred to Mr. Justice Powell and Mr. Justice Gould; who are forthwith to summon all Parties concerned in the Bill; and, after hearing them, and perusing a Copy of the Bill signed by the Clerk of the Parliaments, are to report to the House the State of the Case, with their Opinion thereupon, under their Hands.
Gaming, to prevent, Bill.
Paul & al. versus Sir J. Shaw, in Error.
The House being moved, "That a Day may be appointed for hearing the Errors argued upon a Writ of Error depending in this House, wherein William Paul and Christopher Clitherow Esquires are Plaintiffs, and Sir John Shaw Baronet Defendant:"
It is Ordered, by the Lords Spiritual and Temporal in Parliament assembled, That this House will hear the Errors argued in this Case, by Counsel, at the Bar, on the First free Day after the Causes appointed to come on in Course shall be heard.
Tunbridge to Seven Oaks, &c. Highways, Bill:
Message to H. C. that the Lords have agreed to it.
Hull Poor, Bill.
Act to prohibit the Exportation of Corn, &c. to explain, Bill.
Hodie 1a vice lecta est Billa, intituled, "An Act to explain so much of the Act for prohibiting the Exportation of Corn, Malt, Meal, Flour, Bread, Biscuit, and Starch, and Low Wines, Spirits, Worts, and Wash, drawn from Malted Corn, by which Act the said Commodities are admitted to be carried from the Isle of Wight, from several Markets; and for giving Liberty to export certain Quantities of Oatmeal, for the Uses of the British Hospitals beyond the Seas."
Report of Precedents concerning Impeachments.
The Duke of Bolton reported from the Lords Committees appointed to search and inspect Precedents of Impeachments concerning Crimes and Misdemeanors, and report such of them as they think proper to be laid before the House, in relation to Doctor Sacheverell's Impeachment (fn. 1)
Proposal to adjourn.
Protest against not adjourning.
"Cravin. North & Grey. Weston. (fn. 2)
Resolution, that Crimina Words, &c. need not be expressly specified in Impeachments:
The Question was put, "That, by the Law and Usage of Parliament, in Prosecutions by Impeachments for high Crimes and Misdemeanors, by writing, or speaking, the particular Words supposed to be criminal are not necessary to be expressly specified in such Impeachments?"
Protest against it.
"1. Because, we conceive, the Law of the Land is as much the Rule of Judicature in Parliament, as it is in the Inferior Courts of Justice. And since, by the Opinion of all the Judges, in all Prosecutions by Information or Indictment, for writing or speaking, the particular Words supposed to be criminal, must be expressly specified in such Information or Indictment; and that this is the Law of the Land, confirmed by constant Practice; we conceive, that there is the same Reason and Justice for specifying in Impeachments the particular Words supposed to be criminal; for otherwise a Person, who is innocent and safe by the Law, out of Parliament, may nevertheless be condemned in Parliament.
"For we conceive, that some Reasons of Law and Justice, why the Words supposed criminal must be specified in Informations and Indictments, may be, that the Party accused may certainly know his Charge, and be thereby enabled to defend his Innocence; that the Jury may know it too, and be enabled thereby the better to apply the Evidence given by the Witnesses to the Matter of such Charge; and that the Judges themselves may the better judge of the Nature of the Crime, and of a Punishment adequate to it, which, in Cases of Misdemeanors, which are indefinite and innumerable, must extremely vary, according to the Heinousness of the Offence; and finally, that the House of Lords, upon Complaint to them, may also judge whether the Fine, which is usually One of the Punishments for Misdemeanors, do not exceed the Demerit; especially since, by the Bill of Rights, exorbitant Fines are declared to be illegal; which Reasons seem to be fully as strong in the Case of Impeachments as in Indictments and Informations; for the particular Words are as necessary to enable the Lords to determine uprightly and impartially, as the Jury or Judges, and as necessary for the Defence of the Accused here, as in the Courts below: And if there were to be a Difference, it seems more necessary in this High Court; for, the weightier the Prosecution is, the more Need has an unfortunate Man of Indulgence, and all lawful Favour; and surely there cannot be a heavier Load upon Man, than an Accusation by all the Commons of Britain.
"2. We do not remember any Precedent insisted on for the Maintenance of this Resolution, save only the Case of Dr. Manwaring, which, we conceive, could not warrant this Resolution; for 1st, the Words charged upon him by the Commons Declaration were not compared with the Sermons, though it was desired; and consequently, no Lord could say they were not the Words of the Sermon; and therefore, upon such Uncertainty, we conceive, we could not ground a positive Resolution.
"2. The Charge upon him, taken out of his Sermon on the Fourth of May 1628, seems to be the very Words by him spoken; for they were attested by Ear-witnesses, who surely never were, or could be, admitted to attest their own Conjectures of the Scope of a Sermon, and not specify the very Words; for that would be to make the Witnesses to be the Judges.
"Besides, in such a Case as this, where the Party did not insist upon any legal and just Exceptions, of which he might have taken Advantage, if he had made his Defence, which he did not, but submitted and begged Pardon; this ought not to be looked upon as a Precedent or Authority to justify the Illegality of the Form of that Impeachment.
"3. But, although this Precedent were full and express to the Point resolved, we humbly conceive, that One Precedent is not sufficient to support a Law and Custom of Parliament, nor consequently a Resolution declaring it; for surely there is great Difference between a single Instance and a Law and Custom.
"4. Especially since we conceive that, in all the Precedents, at least all that have appeared to us for Four Hundred Years, of the Prosecutions in Parliament, the particular Words charged as criminal have been constantly expressed in the Articles or Declarations of Impeachment.
"28 H. VI. Will'm de la Pool. Sixth Article was, for Words spoken by him sitting in the Council in the Star-chamber; (videlicet,) That he said, "He had a Place in the Council-house of the French King, as he had here; and was as well trusted as he was here; and could remove from the French King the privyest Man of his Council, if he would."
|The Opinions he delivered are set forth, in hæc Verba; as also the Times when he delivered them.|
|That he subscribed an Opinion, in hæc Verba; which are specified.|
|The Words spoken, and the Place, expressly set forth.|
|For subscribing and giving Opinions, set forth in hæc Verba.|
"Upon the Whole, therefore, we humbly conceive, that so great a Number of Precedents is sufficient to outweigh the single Instance of Dr. Manwaring's Case, how apposite soever it may seem to be to the present Case, which, for the Reasons we have mentioned, is far from being plain and clear, or having the full Authority of a Precedent; and the Law and Custom of Parliaments, as we conceive, is, to be determined by constant Course and Practice, and not One Precedent occasioned by so odious Doctrines as those of Doctor Manwaring; nor can the contrary Assertion to the abovesaid Resolution be of any ill Consequence to Impeachments by the Commons, because it is easy for them to specify the Words which offend them, but extremely difficult for the Accused to defend himself without knowing them. And as all who are charged criminally have Leave to make their Defence, so they should also have allowed to them all lawful Means for it.
It is Resolved, by the Lords Spiritual and Temporal in Parliament assembled, That, by the Law and Usage of Parliament, in Prosecutions by Impeachments for high Crimes and Misdemeanors, by writing or speaking, the particular Words supposed to be criminal are not necessary to be expressly specified in such Impeachments.
H. to proceed on Impeachment, Article by Article.
It is Ordered, by the Lords Spiritual and Temporal in Parliament assembled, That on Thursday next, at Eleven a Clock, this House shall proceed upon the Impeachment of Henry Sacheverell Doctor in Divinity, Article by Article.
Judges to proceed on their Circuits.
The House being informed, "That, notwithstanding Her Majesty's Proclamation for altering the Times appointed for holding the Assizes in some Counties, yet there will be Delay in Justice, if some of the Judges do not begin their Circuits on Thursday next:"
Hereupon it is Ordered, by the Lords Spiritual and Temporal in Parliament assembled, That Mr. Justice Powys, Mr. Justice Blencowe, and Mr. Baron Price, have hereby Leave to proceed in their Circuits on Thursday next.