Veneris, 2 die Augusti; 1° Gulielmi et Mariæ.
Leave of Absence.
ORDERED, That Sir John Wyn have Leave to go
into the Country, for Six Weeks.
Preventing Export of Wool.
A Petition of the Eastland Merchants, was presented to
the House, touching the Matter of the Bill for preventing
the Exportation of Wool: But it appearing, that they took
Notice therein of a Clause added, or to be added, to the
Bill, it was conceived to be irregular; and so the Petition
Act 5 H. 4. against multiplying Gold and Silver.
A Message from the Lords, by Sir Miles Cooke, and
Mr. Speaker, We are commanded by the Lords to acquaint this House, That they have agreed to the Bill to
repeal the Statute of 5& H. IVi. against multiplying Gold
and Silver; without any Alteration.
Attainting certain persons.
Also, That they desire a present Conference with this
House, in the Painted Chamber, upon the Bill for Attainting of several Persons now in Rebellion against their
And then the Messengers withdrew.
Resolved, That this House doth agree to a present
Conference with the Lords, as is desired.
And the Messengers were called in again; and Mr.
Speaker acquainted them therewith.
Resolved, That Sir Wm. Williams, Colonel Birch, Sir
Rich. Temple, Lord Commissioner Maynard, Mr. Serjeant
Trenchard, Mr. Christy, Sir Rob. Sawyer, Mr. Hawles,
Mr. Hamden, Sir John Guise, Sir Tho. Littleton, do
manage the said Conference.
And the Managers went to the Conference accordingly.
And being returned,
Mr. Hamden reports That the Managers had been up
at the Conference; which was managed by the Earl of Rochester: That he had not brought back the Bill; for it was
not delivered him: That the Earl of Rochester said, The
Lords had not gone through the Bill for Attainting of the
Persons in Rebellion in Ireland, but only to the Persons
that were named; for that the Lords did not know what
Evidence the House of Commons had of those Persons
being in Ireland: And therefore made it their Motion at
the Conference, That they might be informed from this
House, Who are the Persons that gave the Evidence against
them here: For, upon their best Inquiry, they say they
cannot learn some of them have been there: They instanced in the Lord Hunsden: And they did think, that
if they should proceed without This, they might not have
all the Evidence they have: And therefore they do desire,
that the Commissioners will give a List of the Persons giving Evidence to the Commons, against the several Persons
designed by this Act to be attainted; that the Lords may
be fully satisfied by Evidence, viva voce, to attaint the
several Persons; as they suppose the Commons are: For
that if the Lords should, by themselves, inquire after such
Evidence, they may fail of having all the Evidence the
House of Commons have had.
Ordered, That Mr. Serjeant Trenchard do, To-morrow
Morning, give the House an Account of the Witnesses
who proved the Persons who are named in the Bill for
Attainting of several who are in Rebellion against their
Majesties, to be in Arms in Ireland.
Leave of Absence.
Ordered, That Sir John St. Aublin have Leave to go
into the Country, for Three Weeks.
Ordered, That Mr. Crawford have Leave to go into
the Country, for a Month.
Reversing Judgments against Oates.
Mr. Solicitor General made the Report of the free
Conference had with the Lords, upon Monday last, touching the Amendments proposed by the Lords to be made
to the Bill for reversing Two Judgments given in the
Court of King's Bench against Titus Oates, Clerk.
Ordered, That the said Report be entered in the Journal of this House: And that Mr. Solicitor General be
desired to take care in the Examination thereof.
Which Report is as followeth; viz.
THAT the Members of this House, who were commanded to manage the free Conference with the Lords,
on Monday last, concerning the Amendments made by
the Lords to the Bill, intituled, An Act for reversing
Two Judgments given in the Court of King's Bench
against Titus Oates Clerk, did attend their Lordships.
That the Conference was begun by the Managers of
this House; who did acquaint the Lords, That the
Commons had desired this free Conference, in order to
a good Correspondence with their Lordships.
That they look upon the Bill for reversing the Judgments against Oates, not to be the Business of a particular
Man, but of every Subject in England, with regard to his
Person and Estate: And that the Honour of Parliaments,
publick Justice, and the Protestant Religion, were concerned in it, as well as the Integrity of King Charles the
Second, and his Privy Council: And that the Lords
Amendments, if agreed to, would make that Bill of great
Prejudice to the Subject, instead of answering the Ends
which were intended by the Commons.
That the Lords Amendments were of two Sorts; some
relating to the Judgments, and others to the Verdicts.
As to the Amendments relating to the Judgments, the
Commons had hoped, That, after the Declaration presented to their Majesties upon their accepting the Crown
(wherein their Lordships had joined with the Commons in
complaining of the cruel and illegal Punishments of the
last Reign; and in asserting it to be the ancient Right of
the People of England, that they should not be subjected
to cruel and unusual Punishments; and that no Judgments
to the Prejudice of the People in that kind ought in
any wise to be drawn into Consequence, or Example); and
after this Declaration had been so lately renewed in that
Part of the Bill of Rights which the Lords have agreed to;
they should not have seen Judgments of this Nature
affirmed, and been put under a Necessity of sending up
a Bill for reversing them; since those Declarations will
not only be useless, but of pernicious Consequence to the
People, if, so soon after, such Judgments as these stand
affirmed, and be not taken to be cruel and illegal within
the Meaning of those Declarations.
That the Commons had a particular Regard to these
Judgments, amongst others, when that Declaration was
first made; and must insist upon it, That they are erroneous, cruel, illegal, and of ill Example to future Ages;
which is the Character fixed upon them by the Bill sent
up to the Lords.
That the Lords having gone so far as to agree the
Judgments to be erroneous, it could not be denied that
they were illegal: For that which makes a Judgment
erroneous is, For that it is against Law.
That it seemed no less plain, That the Judgments were
cruel, and of ill Example to future Ages.
That it was surely of ill Example for a Temporal
Court to give Judgment, "That a Clerk be divested of
his Canonical Habits; and continue so divested during
That it was of ill Example, and illegal, That a Judgment of perpetual Imprisonment should be given in a
Case, where there is no express Law to warrant it.
It was of ill Example, and unusual, That an Englishman should be exposed upon a Pillory, so many times a
Year, during his Life.
That it was illegal, cruel, and of dangerous Example,
That a Freeman should be whipped in such a barbarous
manner, as, in Probability, would determine in Death.
That here were Precedents made, which did not concern this Man only, or only this Offence; but the Judgments pronounced against Oates, were Judgments against
every Englishman, Subject Ecclesiastical as well as Temporal; the Lords as well as Commons.
That this was avowed, when these Judgments was given
by the then Lord Chief Justice of the King's Bench; who
declared; "That all the Judges had met; and unanimously
agreed, That where the Subject was prosecuted at Common Law for a Misdemeanour, it was in the Discretion
of the Court, to inflict what Punishment they pleased,
not extending to Life, or Member."
That as soon as they had set up this Pretence to a discretionary Power, it was observable how they put it in
Practice, not only in this, but in other Cases, and for other
Offences, by inflicting such cruel and ignominious Punishments, as will be agreed to be far worse than Death itself
to any Man who has a Sense of Honour, or Shame: So
that, it was hoped, the Lords would find themselves concerned in Interest to depart from their Amendments, and
not to rest satisfied with a bare saying, That such Practices
ought to be prevented for the future: Much less to insist
upon their additional Clause A; which is so far from declaring those Judgments to have been illegal, that it does
plainly import an Allowance of them: Nor does it go so
far, as to provide a Remedy for the future: For it does
only Enact, That such excessive Punishments ought not
to be inflicted for the future: Which seems rather to refer
to the Severity of the Execution, than to the Judgment
It was agreed by the Lords at the last Conference,
That the Judgments of Affirmance given by the Lords,
cannot nor ought to stand, when the Judgments of the
King's Bench are reversed: And therefore the Commons
think themselves concerned to insist, That the Act may
speak plain; and that it may be understood by all who
have heard the Judgments against Oates were once affirmed by the Lords, that those Judgments of Affirmation
may subsist no longer.
As to the Lords Amendments, which relate to the
It was urged by the Managers for the Commons, That
so severe and extraordinary a Thing, as the making a
Man infamous, and taking away his Testimony by Act
of Parliament, ought not to be done, but upon the greatest
Consideration; especially in such a Case as this, where
the Honour of Parliamentary Proceedings, and of the
English Justice, were more concerned than Oates.
The Business of the Popish Plot had great Examination
in several Parliaments, and in several Courts of Justice:
In all which Oates stood a good Witness: And though
his Testimony did not stand alone, but was confirmed
by other Witnesses, and by Papers and Letters (Evidence
which could not be mistaken); yet it did deserve to
be considered, if the Declaring him to be an incompetent
Witness, by Act of Parliament, would not be interpreted
a great Step towards disavowing the Popish Plot; it being certain, That what had been done by the Lords, in
affirming the Judgments against him, had already had such
an Interpretation beyond Sea: It was therefore fit to have
it plainly known, Whether that was intended; and to have
it well weighed, whether the Thing will be so much for
the Honour of our Nation, or our Religion, that we
should go out of the Way, and do an extraordinary thing
to come at it:
For, by Law, when the Judgment is erroneous (which
is confessed in this Case), the whole Record is to be annulled: And therefore, to let so much of the Record stand
as relates to the Conviction (which is in Effect done by
the Lords Clause (B), is to do an extraordinary thing; is
plainly to pass a new Censure upon Oates; and to make
that which was singly the Opinion of the Jury before to
be the Act of the whole Parliament: Which the Commons can see no Reason to agree to.
And, though it be confessed, That the present Proceeding is in the Legislative way, and therefore there is no
Necessity of strictly pursuing the Forms of Courts of Justice; yet, when the Commons reflect how they came to
be driven to use this extraordinary Course for reversing
these Judgments, they cannot satisfy themselves, that it
is just to take from the Party an Advantage which he
ought to have had in the ordinary Methods of Law,
without stronger Reasons than they have heard in this
They observe, The Perjuries assigned against Oates
were not in the Substance of his Evidence, but in the
Circumstance of Time; in which there might be an innocent Mistake, without contracting the Guilt of wilful Perjury; and that a colourable Counter Evidence might be
easily set up to such a Point of Time; especially when
the Thing was under the Management of Jesuits, whose
whole Order was wounded by Oates' Evidence, and who
are not scrupulous of using indirect Acts, to preserve their
Credit or Interest.
It was also to be observed, That the Matter in which
the Perjuries were assigned, were not new Discoveries;
but the very same things had been objected, and insisted
on at former Tryals, several Years before, when Matters
were fresh in Memory, and when most of the same Witnesses were examined against Oates: And yet, after a full
Hearing of them, and of the Witnesses produced on the
Behalf of Oates, his Testimony was supported, to the full
Satisfaction of the Judges and the Juries.
So that, after all Endeavours to the contrary, Oates
stood upright, his Testimony unshaken, till a Papist was
upon the Throne; till irregular Sheriffs were made; till
new Freeholders Books, consisting only of Persons fit to
serve the present Turn, were formed; till Grahme and
Burton were by Experience become perfect in the Mystery of managing Juries; till neither Counsel nor Witnesses could, with Safety, appear for Oates; till those
Times were come, when (as the Lords and Commons
have both affirmed in their Declaration of the Thirteenth
of February) partial, corrupt, and unqualified Persons
were returned, and served on Juries.
That Violation of Law, Partiality, and Corruption,
were the Character of the Times; and were visible in
every thing that moved towards the attaining those Verdicts: And therefore the Commons think themselves well
justified in calling the Verdicts corrupt, though no direct
Giving of Money to Jurors, or Witnesses, could have
been proved: For if nothing else but a direct Proof of
Money given, make a corrupt Verdict, it would be very
difficult to shew, that ever a corrupt Verdict was given:
Nay, it is possible a Jury may have taken Money; and
yet give a true and honest Verdict.
Any Partiality in the Jury, let either Malice or Affection be the Motive, makes the Verdict corrupt: If the
Juror do but declare his Thought before the Tryal, it is
a good Cause of Challenge: So nice is the Law in requiring, that Jurors be indifferent, that if any one of the Jury
be returned at the Denomination of the Party, or to the
end that he should be more favourable to the One Side
than the other, the whole Array out to be quashed.
It appeared to the Committee of the House of Commons, who were appointed to inquire into the Proceedings upon the Indictments against Oates, That so great a
Price was set on the destroying Oates' Credit, That the
Prosecutions were notoriously carried on by express Directions and Commands from the Court; that great
Sums of Money were distributed, in order to it; and
fit Instruments employed in procuring and instructing
Witnesses to swear against Oates, in the same Points,
which had been fully examined before; that, under
colour of paying their Charges, considerable Sums of
Money were given to Witnesses; that, to make sure of
them beforehand, they were required to make Affidavits,
beyond Sea, of what they were to swear at the Tryal;
which were drawn so, that it was proved to the Committee, That one of the intended Witnesses refused to swear
again what they had thought fit to set down for him in
It did appear to the Committee, That Clubs were kept
at Taverns; Where Jurors were named in these State
Tryals (as they were called); and where Burton and
Grahme were assisting, and gave their Directions.
Besides, there lay an Exception of Partiality to the
Witnesses, being all of them, in a manner, Novices at St.
Omers, a College of Jesuits; against which College, Oates
had given particular Testimony: Besides (as Jesuits) they
could not esteem it of little Consequence to their Order,
to discredit the Evidence of the Popish Plot; and disparage those Parliaments who had prosecuted it with so
much Vigour: And how far the Principles of the Jesuits
would allow them to instruct their Novices, that an Oath,
administered by Heretick Magistrates, was to be little
regarded, might deserve to be thought upon.
It appeared to the Committee, That in this Case no
less than Nine of the most considerable Counsel were
employed against Oates, and had frequent Meetings, and
great Fees; which seemed extraordinary, when nothing
was in Question but a Point of Time.
It appeared, That great Treats were given several times
to the Jurors; which the Law does not allow.
It appeared also, by the Accounts upon Record in the
Exchequer, That above Three thousand Pounds was
expended about convicting Oates: Which the Commons could not but think was too great a Sum to be
fairly spent, upon Occasion of Two Tryals by London
The Commons saw no Cause to add any Authority or
Reputation to such Verdicts, upon a bare Possibility that
new Matters might arise between the former Tryals, and
those for the Perjuries (which was a thing insisted on by
the Lords at the last Conference); since it was, at least,
alike possible, that no such new Matter did arise: For, on
the one side, it was owned by the Lords, that they had
not examined the Fact; and on the other side, the Indictments shewed, that the Points, in which the Perjuries
were assigned, were not new Matters, but the same which
had been drawn in Question at the former Tryals, and
upon the Credit of the same Witnesses: So that the Presumption lay stronger on the Commons Side.
As to what was mentioned by the Lords at the last
Conference, "That the Corruption of the Verdicts did
not appear to them;" it was said, That was not the Fault
of the Commons; the Lords having the same Means of
being informed as the Commons had, if they had thought
fit to use them.
It was agreed to the Lords, That there was a Respect to
be had to legal Proceedings; but then that Respect ought
to be equal: And the Examination of the same Facts, in
the several Tryals in King Charles' Reign, did deserve,
at least as much Regard as the Examination of the very
same Facts in King James' Time; especially when the
former Tryals stood confirmed by the concurring Opinions
of King Charles himself, and so many successive Parliaments: Besides, it was scarce credible, that the Judges,
who could be guilty of giving such an extravagant Judgment, could be indifferent in their Directions at the
The Managers did further urge, That the Lords Clause
(B) did make it impossible for Oates to clear his Innocence,
though that was said to be the End for which it was intended: For if the Conviction stand, there is no legal
Course left for hearing and determining the Matters for
which he was convicted: And were it supposed the Lords
should think fit to give themselves the Trouble to enter
into the Examination of the whole Matter, and could find
out a Means of doing it; yet, if the Lords Proviso was
agreed to, Oates could have no manner of Advantage,
though his Innocency was fully cleared, by any Judgment
the Lords could give; but he must still remain an infamous Person, unless a new Law were made to restore him:
And how far it is consistent with the Rules of Justice, to
leave a Man in such Circumstances, seemed very easy to
determine; especially since, by pursuing the known Methods of Law, and entirely reversing the Judgments by
Act of Parliament now, as it ought to have been done
before by the Lords in their Judicial Capacity, Oates
may be again indicted, and brought to an indifferent
Tryal; according to the Success of which, his Credit will
stand or fall: And that is the only regular way which
does remain, to have these Matters re-examined.
The Managers for the Lords, who spoke at the Conference, were the Earls of Rochester, Berkly, and Nottingham, the Lord Bishop of London, and Lord Bishop
The Substance of what was said by the Managers for
the Lords, as to their Amendments, with relation
to the Verdicts was,
That, if it were proved to them, that the Verdicts
were corrupt, it would incline them to agree; That being
the Issue between the Two Houses: If That was not
made out, the Lords did not think it fit, that Oates should
take Advantage of an erroneous Judgment, to destroy
That, in order to let them into the Examination of the
Matter they had added the Clause B: That the only proper time for the Examination of that Matter was, after
the Commons had agreed to that Clause: For the Lords
could not enter into the Examination of it in their Judicial Capacity, because they were then only to take the
Records as they stood before them.
That to make the Verdicts corrupt, there must be some
Corruptions made out between the Time of the former
Tryals, and the Time of the subsequent Tryals for the
That they agreed there might be other Methods of
Corruption than by Money; but that it was hard to
That the Persons who served upon the Juries at Oates's
Tryals, were Men of great Consideration in London, some
of the first Form of Merchants; and to dispute their
Verdicts was, in Effect, to attaint them: That few Men
but would have been pleased to have had such a Jury in
a Case of their own.
That the Lords would rather believe Oates guilty of
Perjury and Knavery, than look upon the Grand Jury
and Petty Jury to be perjured.
That there was no Proof before the Lords, That there
was any Favour in the Return of the Jury; or, that they
were nominated by a Club.
That there was no Incompetency in the Witnesses
against Oates; for though he had sworn against Many,
he had not sworn against All the Jesuits.
That the Treating of Jurors was acknowledged to be
scandalous; but there was no Proof of That before the
Lords: And if it were true, yet it had not been sufficient
to set aside the Verdicts, without other Proofs of Corruption, and Those fit for a Court of Record to receive.
That they did not think it sufficient Evidence, That
Grahme and Burton had charged great Sums in their
Books as paid upon the Account of those Tryals; for,
That might be false: Or, suppose it were expended on
the Witnesses, did That make the Verdict corrupt? so
that the Lords might legally, judicially, and honestly, give
their Vote upon the Question.
That it was a Matter of great Importance, and concerned every Man in his Life and Estate, if it were taken
for granted, that, because a Man had, at a Tryal, passed
for a good Witness, he was not to be prosecuted afterwards for Perjury: That a Man accused was then in a
very unfortunate Condition; for the Grand Jury was to
keep the King's Secrets: The Prisoner in such a Case
was for the most part kept close, and his Witnesses were
not sworn; so that he could not be ready for his Defence
for the present: And if the Witnesses might not afterwards be prosecuted for Perjury, by him or his, then there
was an End of all Prosecutions for Perjury.
That the Point of Time was material: And that a
Person accused of Treason had hardly any thing else
whereby to make his Innocence appear; since there was
no Proving of a Negative.
That Counsel was assigned to Oates: And that Witnesses were summoned, and did appear for him; as they
That there was no Way to reverse a Verdict but by
Act of Parliament: And, before That was done Justice
did require, that the Party should clear his Innocence.
That the Lords had Reason to expect the Commons
should make out to them the Corruption of the Verdicts;
and shew that they had unquestionable Evidence to
prove, that several thousand Pounds were expended.
That they had looked upon Oates as perjured in other
Matters: That he had accused the Queen Dowager of
High Treason, in conspiring the Death of her Husband,
at the Bar of the House of Commons; which nobody
could believe of her:
That he had sworn at the Council Board, He had no
other Person to accuse: and yet, after, had accused the
That Oates at first might come in with a fair Intention,
and for Discovery of the Truth; but that appearing in
the Presence of so many great Persons, and finding so
much Ear given to what he said, it was natural that it
should either damp and terrify him, or create too great a
Confidence: That it had the latter Effect upon him; and
made him fancy himself to have a Right of creating Evidence, rather than delivering it: That it was not fit to
encourage such Witnesses: That his Brain seemed to be
turned: And that, when he was lately brought before the
House of Lords, he seemed to hang his Rod over them.
That Now the Parliament, acting as Legislators, were
not tied down to Form: That they did not inflict any new
Censure on him, but left him in the State they found him.
That this was a Matter of great Expectation: That
the Eyes of all Europe were upon it: And that it would
be the Occasion of great Censures, if he should be set up
for a Witness again, without a full Examination of the
whole Affair; especially in the Case of a Conviction for
Perjury; which had something in it more peculiar than
other Crimes; for every one had a particular Concern to
be covered from it.
That they would not enter into the Question of What
was the Difference between an erroneous and an illegal
Judgment; though, perhaps, a Judgment that was erroneous in point of Form, might not be said to be illegal.
As to the Affirmance of the Judgments; and the
Amendments relating to the Judgments;
The Judges had owned to the Lords, That there was
a Latitude left to the Court in Judgments, in case of Perjury; which was one thing that moved them to affirm
the Judgments: But that they had never done it, had it
not been attended with the Verdict; which the Lords
thought of fatal Consequence to take away.
That, when the Case came to be debated in the House
of Lords upon the Writs of Error, there was not one
Lord but thought the Judgments erroneous, and was
fully satisfied, That such an extravagant Judgment ought
not to have been given, or a Punishment so exorbitant
inflicted upon an English Subject: But, considering his
accusing the Queen so impertinently, and several other
Instances; rather than leave so ill a Man as Oates capable
of being a Witness, they, in that Streight, chose to affirm
the Judgments, though they were satisfied of their being
erroneous: And, to shew they were sensible of this, at
the same time when they affirmed the Judgments, they
thought fit, that a Bill should be brought in to the House
of Peers to prevent the Inconveniencies of the like Judgments for the future.
And therefore, when the Lords had gone so far in their
Judicial Capacity, as to affirm the Judgments, rather than
the Verdicts should be set aside, the Commons were not
to expect that they would recede now, and set up Oates
for a Witness again, without unquestionable Proof of
Corruption in the Jury.
That the principal Matters, insisted on by the Lords, were,
1. To leave out what concerned the Corruption of the
2. That their Proviso against Oates's being received for
a Witness do pass:
3. That so great an Hardship should not be put upon
the House of Peers, as that they should, in express
Terms, reverse their own Judgments, since there
was no Necessity of it.
The Managers for the Commons, by way of Reply,
gave a summary Account of the whole Proceedings in
relation to the Popish Plot; and of the several Subornations, and other foul Practices, which had been used to
stifle the Evidence, and discredit the Witnesses, particularly Oates.
As to the Lords Amendments, which concerned the
Judgments, It was said by the Managers,
That there were Precedents made, which affected
That, by taking upon them to affirm such Judgments
as These, the Lords had, in a manner, taken the Law
into their Hands.
That this arbitrary Power, in the Lords Judicature, is
a new Discovery; and if it had been understood in former
Times, would have been a very expeditious Way of altering the Law, upon several Occasions.
The Lords, as a Court of Judicature, are as strictly tied
to give Judgment upon a Writ of Error, according to
Law, as any inferior Court whatsoever: They must not
proceed upon Considerations of Convenience: But this
Judgment of the Lords is agreed to be given, not according to Law, but according to an Opinion which their
Lordships had conceived of the Party; and that also,
without any Judicial Examination: Instead of correcting
the acknowledged Errors of their Judgments in the King's
Bench, they affirm them; and so change the Law, which
ought to be the certain and steady Rule of Government,
into the arbitrary Resolutions of That House.
That nothing was aimed at by the Commons in this
Bill, but to set that Matter right: If this Bill be lost, the
Lords have settled it for Law, That every Subject may
be used in this ignominious and barbarous manner.
Oates is the least Part of the Question, how much soever
he seems concerned in it: The Grievance is, That the
whole Kingdom, for Oates's . . . . ., must be made
liable to these Whippings.
The Commons hoped the Lords will take this Opportunity of redeeming this Error, by passing the Bill as it
was sent up by the Commons; and not expect, because
they have given a wrong Judgment, that therefore the
Commons must join to support it by an Act of Parliament: For their Lordships Clause did really countenance
the Judgment against Oates; enacting only, That such
Punishment shall not be inflicted for the future.
That it was of great Importance to the Kingdom to
have this Matter settled; Judgments of this Kind having
been extended to several Persons, and to very different
Cases; as in That of Mr. Johnson: It was thought (with
Reason enough perhaps) by the Ministers of those Times,
That such Punishments would awe the People, and fit
them for Slavery, worse than Death itself; according to
Sir Thomas Smith's Observation, "That no Nation is less
fearful of Death, or more afraid of Torments, than the
That the Commons could not think the Nation safe
without an express and plain Declaration, not only, That
the Judgments of the King's Bench were illegal, cruel,
and of evil Example to future Ages, but also, that the
Affirmation of those Judgments was contrary to Law.
To what was said by the Lords, to maintain the
Amendments which concerned the Verdicts, the
Managers for the Commons replied to this Effect;
That the Lords, by insisting not to agree to the Clause
in the Bill which calls the Verdicts corrupt, unless the
Commons could bring positive Proof of an express Contract for Money, to be paid directly to hire the Jurors to
give the Verdicts, did seem to have inverted the several
Methods of Proceedings in their distinct Capacities.
In their Judicature, where they ought to act by the
strict Rules of Law, they proceed according . . a supposed
Convenience: In their Legislative Capacity, where there
is a Latitude of Proceeding according to a moral Certainty and Convenience, a single Expression, "of a corrupt Verdict," though inserted upon such just Grounds,
will not be allowed; unless a precise Proof be made in
the strictest Forms of Courts.
That it was not the Business of the Commons to furnish the Lords with Evidence, or to inform them otherwise than by reasoning at Conferences: The Lords have
proper Methods whereby they may inform themselves,
when they think Evidence requisite.
That it was notorious, That the whole Administration
of the Government, especially with relation to Religion,
was at That time corrupt.
The Design was to overthrow the Reformation, and restore Popery to be the National Religion: And this could
not be effected otherwise, than by totally perverting and
corrupting the Laws, and the whole Course of Justice.
A Popish King they had; the House of Peers was to
have been filled with Papists, by Dispensation with the
Act of Thirtieth of King Charles the Second; and a Popish House of Commons was to be packed, by means of
Quo Warrantos, Surrenders, and Making and Regulating
In the Courts of Judicature they did run upon every
Man who durst assert the Rights of an English Subject;
resolving by partial and corrupt Means, to bow, or break
For this Purpose they provided and packed Judges,
Sheriffs, Jurors, and Witnesses: And those in Authority,
who ought to hold the Balance indifferently, were indeed
a Party; a corrupt Party.
This is proved by the Declaration of the Thirteenth of
February; wherein the Lords and Commons did agree,
"There were evil Counsellors, Judges, and Ministers,
that assisted the late King to subvert and extirpate the
Protestant Religion and the Laws and Liberties of this
Kingdom: That the Laws were suspended and dispensed
with; an Ecclesiastical Commission executed, and Bishops
committed and prosecuted for an humble, honest Petition;
Protestants disarmed, whilst Papists were armed and employed; partial and corrupt Persons returned, and served
on Juries; excessive Bail required; excessive Fines imposed; and illegal and cruel Punishments inflicted."
When the Commons sent up this Declaration, the Lords
acknowledged and agreed to the Truth of these Particulars upon the Notoriety of the Fact, without asking the
Commons to prove any of the Articles.
If there were such foul and corrupt Proceedings, as the
Lords have agreed there were, can it be thought, that,
in this particular Case of Oates (who had so highly provoked them, and upon the Ruin of whose Credit the
Reputation of the whole Party did depend) they departed
from Themselves; and for once, proceeded indifferently
equally, and uncorruptly?
The Lords might as well, if not better, put the Commons to prove any or every the Proceedings in the late
Reign to be corrupt or unequal; which would be to deny or doubt, in every Particular, what they had expressly
owned in general.
That the Matter in Oates's Tryal was self-evident:
They tried Points that had been examined in Parliament;
and were proper to be re-examined only there; the Witnesses were provoked Enemies; and though his Evidence
was not against all the Jesuits, it reflected upon the whole
Order; and was directly against the College at St. Omers:
The Jurors were such, whose Affections and Prejudices
were well known; and they were returned by Sheriffs not
legally constituted: And the Judges were Chief Justice
Jeffryes, and his Companions.
To render a Verdict corrupt, it is not absolutely necessary that the Jury should bargain and sell it for Money:
If there were a false Bias, if they were swayed by Prepossession, Prejudice, Hope of Preferment, or Gain, or Fear
of Displeasure, it is enough: Or, suppose the Judges were
corrupt; and directed false Law, or false Fact, or overawed
the Jury; or admitted a Party to be a Witness, or Juror
(as in Effect it was); That was enough to render the
Verdict corrupt: But, which is worse Here, the Jury was
returned at the Denomination of a Party: It was the Fashion of the Times, That every one who was accused was
to be convicted at the Peril of the Judges and the Jury.
If Oates's Brain was turned, as was said by the Lords,
the more wrong was done, by convicting him of Perjury;
which a Madman cannot be guilty of: And, after such
cruel Usage (which would make a wiser Man mad) it may
with more Reason be believed his Brain is turned; and
then there is little Danger of his being used in Evidence
for the future.
That it was observable, that Oates was sentenced to be
whipped from Aldgate to Newgate on the Wednesday;
and from thence to Tyburne on Friday following: Which
could be intended no otherwise, but in the Nature of a
Rack; that, by the Smart of the First Sufferings, and the
approaching Terror of the next, he might be brought to
make such a Recantation as was desired: And it is hard
to think, that any thing, but a full Persuasion in himself;
that what he swore was true, could support a Man under
If Oates had been guilty of Perjury about the Queen
Dowager, or any other Matter, which has not hitherto
been brought in Question, it did not relate to the present
Case: He is liable to be indicted, and punished for it,
whatsoever becomes of this Bill.
That the Commons did not argue, That, because a
Man had been once believed at a Tryal, he was not to be
prosecuted for Perjury after: But they observed, that the
very same Objections had been made to Oates's Testimony at former Tryals, and proved by the same Witnesses; and yet the Juries gave Credit to Oates: So that,
according to the Lords Way of reasoning, to suppose
Oates to be perjured in those Points, was to attaint those
former Juries; and the Lords ought to be as careful of
charging such a Guilt upon one Jury, as another.
Upon the whole Matter, the Commons did not think
it reasonable it should be required of them to concur to
support any Part of this erroneous Record.
It is the Right of the Subject, that all that is done
before or after an illegal Judgment, should fall with it;
and though, in Proceedings in the Legislative Way, the
Commons are sensible they are not tied up to Forms,
yet they are certainly bound to the Rules of natural
Justice, and are not to deprive the Subject of his legal
The Managers for the Commons concluded the Conference, by stating the Case in short to the Lords:
A Writ of Error is brought in the House of Peers:
The Lords do all avow the Judgments to be erroneous;
yet, as Judges, do, for collateral Reasons, assume an
arbitrary Power to affirm it.
The Nature of the Judgment being such, as that every
Subject was concerned in the highest Degree, that so dangerous a Precedent should not stand, the Commons find
themselves under a Necessity of sending a Bill to the Lords
to set the Matter right by reversing the Judgment.
The Lords refuse to pass the Bill but upon Terms:
1st. That Part of the Record must stand:
2. That there must be no Notice taken of the Judgments of Affirmation given by the Peers:
As these are the Terms now stood upon, so in any
other like Case they might impose whatever other Terms
and Conditions they had a mind to.
The Consequence must be, That the Lords, as Judges,
make what they think fit to be Law; and the Matter
shall never be set right in the Legislative Way, but upon
such Conditions as the Lords shall be pleased to impose:
And how far this concerned the King, and the Commons, as to their Right in the Legislature, was obvious.
A Debate arising in the House, touching the said
Amendments proposed by the Lords to be made to the
And the Question being put thereunto severally, That
the House do agree with the Lords in the said Amendments;
It passed in the Negative.
Ordered, That the Committee appointed to inspect the
Journals, touching Precedents in Cases of Conferences
and free Conferences, do make their Report To-morrow
Ordered, That the Committee who managed the free
Conference with the Lords, touching the Amendments
to the Bill for reversing Two Judgments given in the
Court of King's Bench against Titus Oates, Clerk, do
inspect the Journals of both Houses, and examine, Whether there be any Precedents of free Conferences desired;
and yet there hath not been thereat a Liberty of Debate
of the Matters for which such free Conferences have
The Warrant for the Pardon to Titus Oates was read;
and is as followeth; viz.
OUR Will and Pleasure is, That you prepare a Bill
for Our Royal Signature to pass Our Great Seal, containing Our gracious Pardon to Titus Oates, Clerk, to
discharge him from all such Punishments as he is liable
unto, by virtue of any Sentence pronounced against him
for Perjury, whereof he hath been formerly convicted;
for which this shall be your Warrant.
Given at Our Court at Whitehall, the Three-andtwentieth Day of July 1689, in the First Year of
Resolved, That the said Managers do inspect the Journals of the House of Lords, and examine, Whether there
be any Address therein for a Pardon to Mr. Oates.
State of the Nation.
Resolved, That the House do, To-morrow Morning,
at Ten of the Clock, resolve itself into a Committee of
the whole House, to consider of the State of the Nation,
in order to represent it to his Majesty.
And then the House adjourned till To-morrow
Morning, Nine of the Clock.