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
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
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
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.
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,
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
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
Sir John Guise.] We are all about giving them something for the blood of their Father, and it is no strange
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
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,
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
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
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
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
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
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
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
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) .]