Monday, February 9.
Mr Cory, Member for Norwich, where Mr James Percy, (a
Trunk-maker) sometime lived, delivers a Petition in his behalf,
desiring liberty to prefer a Bill in Chancery against some Members, who pleading Privilege, it cannot be done without leave
of the House, and if not done, may be the hazard of his cause,
many of his witnesses being aged, who can make out his descent as heir to Henry, the eighth Earl of Northumberland (fn. 1) ,
and cousin and next heir to Joceline, late Earl of Northumberland, deceased (fn. 2) .
Mr Clarke, Agent to the Northumberland family.]
Knows no person here concerned in this Petition but himself. He will not wave his Privilege, and has at this time
a personal action against this Percy—The rise and proceedings of this man began in 1670. He waited on Lady
Northumberland this summer in the West; she showed
him a letter from my Lord Keeper, in the nature of a
subpæna, from Percy, to answer a Bill against her in
Chancery. He told my Lady, he would take care of it,
and order an appearance. Coming to London, and meeting some Members at Guilford, they told him of a Petition to the King by this Percy, who pretended to be Earl
of Northumberland; which was referred to the Masters
of Request. It was a frivolous Petition, and the King
thought Percy deserved to be whipped. Soon after, an
appearance was given by Lady Northumberland, and a
commission to examine witnesses in Northamptonshire,
who testified that this Percy was son of a shepherd to
Lord Vaux, born in Bedfordshire, and heard he was of
kin to my Lord of Northumberland. The Bill was then
dismissed with costs. Then Percy went into Northumberland, where, by the help of Counsel, he acquainted himself with Gentlemen, and brou ht one Colonel Eyre,
once a fifth-monarchy-man, over to his interest; and
some did caress him, out of favour to the family of the
Percies, for the happy days the tenants had seen under
them. He goes on the Northern Circuit and drops some
declarations, and reports at London that he was acknowledged heir, and that the tenants had attorned to him;
and then would put his claim of the title into the House
of Lords. The elder Countess of Northumberland (fn. 3) put
a Petition into the Lords House that he might be punished as an impostor. The Lords dealt justly, and at
a Committee of Privilege he was to make out his claim,
but did not do any thing suitable to his Petition. This
Petition was in general terms; then he put another Petition, "That he was descended from Henry, the eighth
Earl of Northumberland;" but not being able to make that
but, a report was made; then he and his Counsel insisted
on a day. Lady Northumberland proposed a fortnight.
Percy stood upon a month, and had it, to make out
his claim. He swore about forty witnesses, but not one
to the purpose; only a Coachman and a Groom heard Lady Northumberland say, "I have lost a dear sister," meaning Sir Richard Percy's (fn. 4) wife, which Sir Richard was never married: Sir Thomas Hanmer knew him at Angiers,
where he was buried, who never heard he was married,
and he left his estate to pious uses; had he had children,
they would have been impious uses. The pretended father of this man was shepherd to Lord Vaux—But he
will now come to Privilege, and reserve the rest for another occasion—He never heard that a Bill in Chancery
was preferred against him by this Percy, but only a personal action he brought against him for saying, "He
was no Percy, but a bastard." He had the honour to
be trusted by both the Earls of Northumberland, and
is now seized in fee-simple of some of the Earl's estate.
He stood bound, at the last Earl's death, for forty thousand pounds, and this estate is for his security, and he
is the first man in all the bonds—Now if you will think
fit that the Gentleman, that brought in the Petition,
shall lay him down forty thousand pounds, he will wave
Sir Thomas Lee.] Has often heard Motions here that
Privilege might be waved, but it is not yours to be disposed of. You send for a man in custody for breach
of Privilege. A Member has his writ of Privilege at
Law. Let the person break your Privilege, and then
judge of it.
Sir Thomas Clarges.] Fears that in long Parliaments
Privilege is a Grievance—It is natural for the rich to oppress the poor—The Countess of Northumberland, and
others concerned, could not wave Privilege—Wishes
some short Bill—For a thing so innocent as this, knows
not why the Member should not wave his Privilege
without troubling you—And a Bill that people might
pay their just debts.
The Speaker.] It is not in the power of this House to
take away Privilege settled by Law; but the Question
now is, whether, a Bill depending in Chancery, the Petitioner's desiring examination of witnesses, which will relate to a Member's title, be a breach of Privilege—It is
not for a Member of a greater Court to go to a lesser.
Mr Rigby.] In Chancery a man may have a commission to examine witnesses, in danger of death, de bene
esse; if he have a right to examine witnesses, no breach
Serjeant Maynard.] What the Law gives a man you
cannot take away without Law; examination of witnesses is a far greater Privilege than serving a subpæna; he
must attend the office of Examiner: My right in many
cases is a time (fn. 5) ; money owed me, and not by bond,
and may be barred in point of claim—That of de bene
esse is a farther examination of witnesses, if they live, but
if ever it comes of use, as obliging as any other evidence
in Chancery, though not in other Courts—This is of
more consequence than only a bare Bill by subpæna.
Sir Philip Warwick.] When there is a just reason,
would be glad that any Member would wave it of himself; had this come originally before you, another case;
but he was condemned as an impostor by the Lords—The same Legislator that said, "the poor must not be
oppressed by the rich," said è contra.
Colonel Birch.] Your honour is concerned in this,
and much; it was never intended that Law should be
contrary to reason; a man to lose his debt for non-claim,
and Privilege pleaded seven years, a hard case—Let the
man proceed, and the Member will or will not answer,
and you may then haply do something to avoid this
Mr Wright, a Lawyer.] If witnesses are examined in
town, no great attendance is required; if in the country,
any Sollicitor may attend, and no inconvenience.
Sir Charles Harbord.] If no Member of this House; he
need not come to you at all; you cannot hinder him.
Sir William Coventry.] Parliaments heretofore sat scarce
so many days as they do now years. It has been well
told you, "Privilege is right of Law," but thinks every
man will concur not to extend it beyond Law; but
thinks there is a great deal of difference betwixt a trust
and a man's own personal right—Knows not what
excess the thing may run into; it may happen, that
four or five hundred Members may obstruct the whole
course of Law of the nation—Knows not how it can
touch the Member, being only in trust. This is so destructive a Privilege, that he knows not the end of it—Moves, that if the examination be only in perpetuam rei
memoriam, the House will leave it to Percy.
Mr Sacheverell.] Would have no opinion at all given
in the case; a judgment in it is of dangerous consequence
—Would let the Petition lie, and if he stirs in it, then to
consider it farther.
Sir Thomas Hanmer.] Gives the same account of Sir
Richard Percy as before.
Sir Thomas Lee.] Moves to have the Debate of the
matter of Privilege adjourned for a fortnight.
Sir Thomas Clarges.] Moves for Saturday next.
Mr Powle.] Your course is to judge of Privilege when
broken, but not to make any general rule in this case—Henry VIII. in Ferrers's case, delivered by the Mace.
Statute of Limitations thus answered, "any man may file
an original, and so preserve his action, though he cannot
proceed to action."
The Debate was adjourned for a fortnight (fn. 6) .
A Bill was read [the second time] "to prevent illegal exacting money from the subject, on any pretence, without common
consent in Parliament; all such impositions declared utterly illegal, and may refuse such payment: Judged a traitor, and to
suffer accordingly, for levying of them, &c. Refusing to aid in
attaching such persons as shall so levy money, to incur a Præmunire."
Sir Nicholas Pedley.] You have Magna Charta, and
de Tallagio non concedendo, and the Petition of Right, but
not with penalties. Is not against enforcing this with
penalties, but thinks those too high; that of 25 Edw. III.
is full for Treasons, and would not multiply Treasons—Is not in love with that Clause of "force upon them,
that shall levy it by resistance." 10 Edw. I. that King
had occasion to go into France, on a sudden, and there
was raised, upon a tax on wool, somewhat more than
was granted. Bohun and Bigott resisted the levying it by
force. The next Parliament declared it "an illegal tax;"
but, by intercession of Parliament, thro' the King's goodness, he pardoned them.
Mr Garroway.] Is for commitment of the Bill; what
Pedley says against it makes most for it—Money was raised against the King, in the Rebellion, and hopes we
may have power to resist that—He has seen a Book lately (Dr Parker's) that says, "They are notorious Rebels
that shall refuse such a levy made by the King before
God:" so by these mens mouths, out of the Pulpit, you
can never be safe—He thinks the Clause not so bad as
represented—Bohun and Bigott were glad to get pardon
for resisting an illegal thing—When once our moneys may
be illegally taken away, we need not sit here.
Sir Charles Harberd.] When persons in Pulpits tell us,
"they must be paid," it is time to look about us—The
penalties are too big.
Mr Crooke.] Treason is the highest penalty in our Law,
and great caution ought to be in making a new one.
There are customs of "levies" at Common Law—Corporations may levy—St Albans's case, when the term was
there—Commit the Bill, for due consideration.
Mr Secretary Coventry.] The Bill, without doubt, tends
to a good end; but both for the payment and manner
of securing the thing, very extraordinary. One time
there was a Debate here upon the penning when a
Tax should end—It would be a hard matter to make a
small Question about the Tax, Treason—"Levying
war against the King's commission for raising money;"
but suppose the King should be there in person (but believes our King will not) will you establish another Posse
Comitatus to resist the Sheriff? Read your Bill of Militia, and let the Long Robe debate it.
Mr Sacheverell.] All these objections, from the Bar,
are out of doors, if considered; it is barely declaratory
of the Law, not for raising, but for the time longer
than granted, by force of arms—If you will leave it for
an army to do it, you may throw out the Bill.
Sir Robert Howard.] Wherever High Treason is enacted, it ought to be extremely clear. One comes to the
Sheriff, and tells him, "Give me your Power;" how
shall the Sheriff be satisfied, whether he ought to go? It
may be Patents for Briefs, which raise money.
Sir William Coventry.] Here are doubts proposed, and
he may have some. The greatest thing, for recommendation to the Committee, is, that the Sheriff, the
Justice, and other officers, are made by the King, as
well as the Guards; none ever intended in the Militia,
but in case of rebellion, and to be assistants to legal officers; and should they come to be countenanced about
"resistance in raising money," hopes it will not be.
Sir Thomas Lee.] The power of the County Militia
may suppress Rebellion; in this Bill the Posse is raised for
no more than to commit a person to jail, in order to
tryal; so the Law remains as before; but the power of
the County begins to be out of date: There was a time
when the Act for the Customs was out of date, and yet
they were levied; some Gentlemen can tell you when.
Mr Attorney Montagu.] The King's officers will be
put upon difficulty; "money is levied" sometimes in
caution, and, when the King appears to have no right,
it is returned—By this Act, the officers of the Exchequer will be so timorous to "levy the money." upon specious records, though by Grants fetched back again, that
none will be found to meddle.
Sir John Duncombe.] Would not, for prevention of an
evil, make it more severe and intricate than before.
Would put the Bill into knowing mens hands of the
Law, and have one of them in the Chair at the Committee.
Sir Thomas Meres.] "By force of arms," the Bill
says, and "illegally;" if an authority in Law to levy
it, the man is safe—Would have every man's help;
how often has Magna Charta been confirmed! The Petition of Right never yet; but this Bill will do part of it,
and would have a clause for confirmation of the whole.
Mr Swynfin.] For the main points of the Bill there is
the concurrence of the whole House; therefore is against
going to a Grand Committee; you all agree in the sense
—Where tedious objections may be met with at a private
Committee, the Lawyers of the House, being of the
Committee, may adjust them.
Sir Thomas Lee.] No use of a Grand Committee of the
whole House, unless you see no more Bills before you
than this—Is weary of sitting here, if so perpetually you
have a Committee of the whole House, which takes up
all the morning. All that come may have voices, and the
Privy Council being Members of the Committee, the
King's interest will be taken care of, and those of the
Long Robe being there, all concerns will be taken care of.
[The Bill was ordered to be committed.]
At the Committee appointed for the said Bill. In the afternoon.
Mr Sacheverell.] The words, in this Bill, "Loan,
Benevolence, Tax, Tallage," are the very words of the
Petition of Right.
Mr Attorney Montagu.] Objected; the King's Briefs,
by Letters Patent, are "levying money;" was answered,
those are voluntary, and "no compulsion or force, in the
Mr Sawyer.] This Bill is in the nature of the Petition
Sir Robert Howard.] In making an exception to any
particulars, by Proviso, you confirm strongly all not excepted; therefore, not that of "Briefs" to be within the
Bill, by exception. Exceptio probat (confirmat) regulam.
The Committee made some few Amendments, and ordered a
Report to be made of the Bill.
Tuesday, February 10.
[The House taking into consideration the contested Election
for Castlerising,] Mr Pepys [one of the Candidates] was accused
by some Members, of being a Papist, and having an altar and
crucifix in his closet.
Mr Garroway.] Moves, that those Gentlemen that
asserted against Pepys, may charge, in their own words,
what they have to say.
Colonel Birch.] You are now in a parliamentary way;
Pepys can say nothing, he was accused but by hearsay,
unless some Gentlemen will repeat the words, and then
Pepys may answer.
Sir William Coventry.] The charge was not told you of
the Gentlemens knowledge, but by hearsay; therefore
appoint a short day, that proofs may be here, and Pepys
Sir John Birkenhead.] As the Apostle Paul said, "he
was beaten publicly," so let Pepys be charged publicly.
The Speaker.] The thing that was said, was personal
accusation against Pepys, and no way relative to his
Election. The business is proper to be enquired into after
the Election is over.
Sir Richard Temple.] By Order, always a reflection
upon a Member must be cleared, before you proceed;
for the thing will have an influence upon your judgments,
which may be used the better, when all objections are
cleared—Your Books are full of it—Adjourn it to a short
day, and when Pepys stands rectus in curiâ, then judge of
it, in God's name—If the Member be absent, and reflections pass upon him, it is your duty, Mr Speaker, to
stop the Debate till the Member be present, and the
things set down in writing.
Sir William Coventry.] Such an aspersion upon a man,
as to "be a Papist," and yet "to take the Communion,"
is such a thing as no man can defend his cause, let it light
as it will, and would, if proved, give his vote to turn
The Speaker told Sir Robert Thomas, by Order of
the House] It is expected that you shall make that appear
which you charged Pepys with.
Sir Robert Thomas.] Is ready to make good what he
said the other day.
Sir Thomas Lee.] Would not have any words read,
that were not collected at that time; it may be an ill
precedent—The Speaker proffering the matter said by Thomas.
Sir Richard Temple.] The course of Parliament is,
that you call upon the persons who made the information
in your Member's absence, to do it now in his presence.
Sir Robert Thomas.] Appeals, that it is not fair for
the Speaker to collect his words, without Order, and requires reparation—Was credibly informed, that Pepys
had an altar, and crucifix, in his house, and should say,
"our Religion came out of Henry the eighth's codpiece"
—He made a ridicule of Lord Brereton, and the rest of
the Commissioners of Accounts, at the Council-Table,
and of your Act of Accounts.
The Speaker replied.] It is his duty, when information
is given against a person, upon an adjourned Debate, to
Sir Thomas Meres.] No man is charged, but words are
written down and agreed. Now you have heard Thomas,
The Speaker.] If any thing falls from a Member, it
is as Meres says; but upon an adjourned Debate, his
duty is to acquaint the House with the matter.
Sir Robert Thomas] Is ready to produce persons, who
informed him, that they did see "an altar, and a
crucifix" upon it, in Pepys's House.
Sir Trevor Williams.] He affronted Lord Brereton at
the Council Table, who spoke for the Commissioners of
Mr Garroway.] If your Member said any thing about
"breaking his wife's heart, because she would not turn
Papist," it is upon report; but the "subsigning Warrants for the delivery away of anchors and cables to the
French," is an abuse to the King, when the Commissioners
of the Admiralty never were acquainted with it—If he
be an accomptant for four or five hundred thousand
pounds, and may have that put off, he may well turn
your Commissioners to ridicule.
Sir John Ernly.] Hears it said, "that Pepys signed an
order to deliver stores to the French." Knows that such
an order did come to us, subscribed by him, "that none
should be delivered that were useful for the King's service;" though, notwithstanding his letter, they were delivered.
Mr Waller.] If the Gentleman that accused Pepys will
quit it, then go on with his Election—Would make a
difference betwixt "Common Fame" and "Reproach;"
or if any persons would stand up here, and say, "persons
would make it good;"—but does not hear any man say
so in this House, or can produce them that can—In all
States, as accusations are allowed, reproaches are discountenanced; "a man said it, a bird sings it." The
Florentine history tells us, that that Commonwealth
was ruined for want of accusations, where persons might
justify themselves; (audacter criminare, aliquid adhærebit) otherwise they are reproaches, the people reviling them as they went abroad. For reproaches, a screwed
gun ends the matter. Formerly there were duels in
France to the destruction of families; now they are
destroyed: all differences are ended by the Marshals of
France, who sit at the Marble Table at Paris, in the
Sir Robert Thomas.] Can prove the "crucifix and altar"
in Pepys's house. They who prove the rest are great persons, and out of his power, without your assistance—several persons in this House have been informed the
same, as well as himself.
Sir William Coventry.] Thomas tells you, "he desires
the assistance of the House to bring these persons to prove
the accusation, being else out of his power. If a general
accusation, "that once in Pepys's life-time he said, that
of Henry the eighth's codpiece," it is hard for him to get
evidence to clear himself—If Pepys's denial be not taken
for a full answer, is then for Pepys to answer it.
Mr Pepys.] Does flatly deny " a crucifix in his house,"
from top to bottom, and would have persons produced
that will prove it.
Mr Secretary Coventry.] There is great reason for the assistance of the House, to get evidence; Colonel Langford
had the command of the Tower, who, not complying with
the Long Parliament, was removed for Sir John Byron,
who was accused of being a Papist; two women offering
to take their oaths, they saw him upon his knees, praying to an image. Sir John Byron was at his devotion,
and his perriwig upon a block, standing upon the table,
not then so frequently worn as now; and this was all the
ground of his accusation.
Sir Thomas Littleton.] Thinks the comparison very unequal, and it might have been spared, betwixt two silly
women, and persons of great quality.
Mr Secretary Coventry.] Whoever is a Commoner,
and a witness, is as good testimony as a great man.
Sir Thomas Lee.] Applying matters of Religion to
"perriwigs," is a kind of ridicule on Religion.
Sir William Coventry.] Thanks God, we are not yet
so well acquainted with "crucifixes," and so might be
easily mistaken—It is time now to require Thomas to
name those persons, that the House may assist him to
reach their evidence.
Sir Robert Thomas.] Some Members have told you the
same that he has done, and he would not be put upon
naming his authors, till things come to proof.
The Speaker.] If witnesses must be sent for, by authority of the House, they must be named.
Sir Robert Howard.] If there be an impediment, that
he cannot get his evidence, then he must have assistance
Sir Thomas Lee.] When you know who they are, then
take your way to bring them to evidence.
Sir Thomas Meres.] Would have them named by Order.
Ordered, by a Question, That all such Members as have given
in the information against Mr Pepys, do name their authors.
Sir Robert Thomas.] He cannot avoid it now, because
he has your commands for it. Lord Shaftesbury informed
him, and he is informed Sir John Banks saw it also.
Mr James Herbert.] Lord Shaftesbury did say, "He
saw an altar and crucifix in Mr Pepys's closet."
Sir William Coventry.] If no testimony be offered by
Lord Shaftesbury, Banks you may send for, being a Commoner; but Lord Shaftesbury must have leave, and, in
this case, you order a Committee to attend Lord Shaftesbury's attestation, as in the case of Lord Bristol.
Lord St John.] Had his information also from Lord
Shaftesbury, who told it likewise to Sir Thomas Littleton,
Sir Thomas Littleton.] Is not named in your Order, and
not obliged to answer.
Sir William Coventry.] If Lord Shaftesbury will avow
the thing, he believes Mr Pepys's Session not very long
in this House.
Sir Thomas Littleton.] Being required by many to declare his knowledge, (forty men are more than one in
evidence, being of the same honesty, and that no man
can be compelled,) answered, Sir Robert Thomas was Ordered to do it, before he informed the House—Would be
treated by that rule every Gentleman ought to be; such
an Order would be very indecent, and would not be put
upon it without your Order, as Sir Robert Thomas was—Would rather suffer any censure.
Mr James Herbert.] Littleton put him upon it, and
would now slip his neck out of the collar.
Mr. Garroway.] Does commend, and would preserve
the modesty of any Gentleman; but what can be added
by Littleton? You have three witnesses in the case against
Pepys, enough to take any man's life away—To put a
man upon such a violence upon himself, where neither
treason nor any great crime is concerned, is very hard,
and would not have Littleton farther pressed.
Mr Powle.] It is an obligation upon a man, when the
Commonwealth is concerned; but as to private discourses that pass under an obligation, hopes you will
not put this violence and force upon him, having sufficient light in the business already.
Sir Thomas Meres.] It is not desired because need of
more evidence, but to be on an equal foot with other
Gentlemen that have informed you; but he, it may be, is
"under an obligation," that other Gentlemen are not.
Sir Robert Howard.] Littleton said not what he would
do, but what he would suffer, rather than inform the
thing without contempt of the House.
A Committee was ordered to attend Lord Shaftesbury, to be
informed whether his Lordship has ever seen an altar and a crucifix in Mr Pepys's house.
Ordered, That Sir John Banks's evidence be taken at the Bar,
and that he have notice to appear.
Sir William Coventry.] Because Lord Shaftesbury is a
Peer, his evidence, reported by a Committee, is the
same with evidence at the Bar. Would have Pepys go
along with the Committee to hear Lord Shaftesbury's evidence, as we shall at the Bar.
Mr Garroway.] If the Question should be asked by
the Committee, "My Lord, what is a crucifix and an
altar, whether consecrated or not?" differences may arise
in the Committee, and so you will have no Report—As
for Mr Pepys's going, would not have spies upon the
Committee who may misrepresent things—Would have
this Order in writing.
Sir William Coventry.] Would not have it lie upon
your Committee that they have not asked Questions, for
you are to vindicate, as well as accuse, your Member;
and if he goes not, you will not have all means proper
by asking Questions, to give you light.
Wednesday, February 11.
[His Majesty in a Speech, which was reported by the Speaker,
acquainted the two Houses, "That he had pursued their advice,
and had made a speedy, honourable, and, he hoped, lasting
Peace, which was already signed." (fn. 7)
He assured the House of Commons, "That, before they had
addressed him about disbanding the forces, he had given orders
for doing of it, as soon as he should be sure of the Peace; and
would reduce them to a less number than they were in 1663."
He added, "That he would give directions for the forces that
came out of Ireland to march thither; but as the forces were
lessened at land, desired their assistance to enable him to build
more great ships."]
Sir Henry Ford.] This House has great obligation from
the King's Speech, and moves, "that our humble
Thanks may be sent to his Majesty."
[Which was agreed to by the House.]
A Message from the Lords, "desiring the concurrence of the
House, in returning his Majesty humble Thanks for his gracious
Speech, and concluding a Peace, according to their advice and
It was answered, at a Conference, "That this House cannot
concur with their Lordships, as part of the King's Speech relates
to a particular Address of their own about "disbanding."
In a Grand Committee on Grievances.
Mr Sacheverell.] Finds in the Laws of the Union,
that this late Act of the Militia of Scotland subverts all
those Laws, and may be a terror to the subject here, and
would have it removed.
Sir Thomas Lee.] Reads the Clause in the Act of the
Union of the two kingdoms, 4 James,—"all men be
ready in arms against England;" that Law is expressly
repealed; and is not the making a new Law to the same
effect, and stronger, a just cause of exception?
Sir Thomas Clarges.] This is matter of as great weight
as can come before you. This Law is of strange consequence; "two thousand horse, and twenty thousand foot,
to march where the King's honour and interest is concerned"—Contrary to the course of the Militia of that
kingdom; all betwixt sixty and sixteen were to be in
arms "for defence of the kingdom"—They have in
Scotland a great many followers, who, by tenure, are
implicitly bound to go wherever their Lords command
them; this new Law appoints "how to be raised, by
what rates of estates, and to march either into England,
Scotland, or Ireland."—Moves for a Committee to consider of the Scotch Laws in this case, and to make you a
Report how they stand.
[A Committee was appointed accordingly.]
On some Amendments being proposed to the Habeas Corpus
Bill, and which were farther debated Feb. 17. (fn. 8)
Mr Cheney.] Though the Statute of Suggestions be
obsolete, yet it is still in force. 33 Edward III. chap. 18.
"No man imprisoned, &c."
Mr Sacheverell.] A man cannot be arrested immediately by the King's warrant, because the subject can have
no remedy against the King.
Mr Secretary Coventry.] Suppose war here, and a correspondency; and suppose the King receives a letter,
"that he is betrayed by his Secretary," and he imprisons
him; if he must have a deliverance, you can never have
Sir Thomas Lee.] If he be commanded to commit
him, let him do it, without the King's hand, but not
make use of it.
Sir Thomas Clarges.] The Long Robe told you, "many
things were unlawful, yet justified by the necessity."
Making a man's house a castle; the Lord Chief Justice
to give an oath what ground and reason there is for it.
A man may be kept up till evidence does come, if it be
[Feb. 12, omitted.]
Friday, February 13.
[A Bill for settling the Fees and Powers in the Patents of
Judges, was read the second time.] The Judges to have their
Grants quam diu se bene gesserint, and not durante bene placito.
Mr Secretary Coventry.] This Bill is of great consequence. We all acknowledge but one King in England,
and we are going to make Judges greater than the King,
whom he cannot punish—We have had Ship-money by
the Judges opinion; let us take heed of their judgment—It is not for the King's service, nor for your honour.
Sir Thomas Lee.] Upon suggestions, Judges are easily
sent for, and turned out, for doing right (being not near
the King's person.) When the Judge is safe for doing
right, he will do the better; no danger of not giving a
right judgment—If all the Judges be corrupt, the Parliament will judge them.
Mr Attorney North.] This Law is of as great moment as can be; there was never less interposition in
the Courts at Westminster than at this time; since they
are durante bene placito, and no suspicion of influence
upon them. Consider how fearful to go before a Judge
—They will consider their honour; here is no appeal to
the Lords in matter of fact, upon a verdict, that he has
heard of—Suppose, in the Circuits, Judges should carry
themselves with a high hand, and with distaste to the
Gentlemen, no Address to the King can remedy it, as
this Bill is; the King might else remove them.
Sir John Monson.] Believes that Judges may be bad.
you are told of tryal by other Judges. Is sorry to
hear, that, if one be bad, all the rest may be so. By
the same reason, if Judges may be so, other things may
Colonel Birch.] Is glad he hears of no more objections
than from the Attorney; if more, you should have heard
of them, sure—If the Judges judge their own misdeameanor, as the Bill is, and the Jury the fact, no Judge,
against his own interest, will carry himself ill to the
Gentlemen of the country—Though we have no reason
to misdoubt the King, yet we tremble to think what we
may come under (fn. 9) . Will say no more.
Mr Sawyer.] Quam diu se bene gesserint, &c. "Whether the thing done or not done," is tried by the Jury, but
"whether it amounts to a forfeiture," is tried before the
Judges. A man that has arbitrary power may do ill, but
this is a mere deliberative argument. Grants of their
places have been practised both ways, and which is best,
it is hard to determine; but a regard to justice, and the
good of the whole kingdom, is the best way to attain your
end. If you will go upon the best way of grant,—more
certainty. "Overawing the Gentlemen in the country"
is no argument, for it must be all according to Law, or
else complainable above—It is a deliberative argument,
and he would commit it.
Mr Boscawen.] You are not only in this to consider
times present, but times past; we have known they have
been arbitrary: Tho' Judges, yet they are but men, and
it concerns the Parliament to remove them from temptations—If removed again when once a Judge, he loses his
practice, and it puts him upon hardships—As for their
fines upon Justices would have them with Appeals, and
not so arbitrary as they are now.
Serjeant Seys.] The Bill imports "Judges to have
their Patents quam diu se bene gesserint, that is, so long
as they are honest men. Judgments are reverted from
one bench to another; then, by Writ of Error, to the
House of Lords—Thinks us not under any danger; the
King brings his scire facias, and the Judge meets with
his match, and those Judges will appoint Juries indifferent—Has known Judges removed to higher Courts,
and lesser profits, and some removed quite. If a man
denies to be a Judge, knows not how answerable. Some
have been turned out of employment and lost all their
practice—Would commit it.
Sir John Duncombe.] Both by the Long Robe and
others, hears no remedy proposed; for recourse to Parlia
ment the thing lies bleak and open; greater numbers
than twelve men may be corrupted, and I must stay till
a Parliament comes; in the interim, I complain to the
King. In a scire facias the Judge must have the privilege of his own Court for tryal; had the Jury the courage to do justice, yet you are not secure of the Judges;
never was an age happier than we; no body complains of
the Judges: Would you not have easier remedy than out
of Parliament for this? How by this are men invited to
complaints by this Act! You yourselves will be the first
men that will suffer by this. Again, they must have the
King's allowance for life, suppose they be insufficient;
that is male se gerere as well as the other—When you suffer nothing, you are well till you complain.
Sir Thomas Clarges.] Duncombe ends his discourse in
praising the condition we are under; but this is the time
to take care against our coming under a bad Prince. For
the first eight or nine years after the King came in, the
Judges grants were quam diu bene, &c. but after the raising a standing army, their Patents ran durante bene placito. Still he apprehends the Marian days, but the demise of the King is the danger. Another remedy may be
[to have] Gentlemen added to the commission of Oyer and
Terminer. Judges have been sued in civil causes, and
remedies for that; the Law is plain in it—Would farther
add to this Bill, "that all offices might continue for
three months after the demise of the King"—Commitment of the Bill may obviate all the inconveniences objected.
Sir Thomas Meres.] It has been objected, "that the
Judges may not prove so discreet, for magistratus indicat
virum, and not fit"—Answers, special regard ought to be
who are made Judges next—If the Judge loses his parts,
or proves lunatic, such power in the Law that he may
Sir John Trevor.] Would commit the Bill upon the
Sir Nicholas Pedley.] If, by the act of God, he have
lunacy, or be superannuated, he may have a Writ of Ease,
and another Judge be made, and he enjoy his salary nevertheless; the King may grant a special commission of
Oyer and Terminer to such of greatest esteem in the
Sir Robert Howard.] Will propose some things, which,
if not taken care of, will be the greatest injustice; naturally judged, if the Judge be "at pleasure," durante bene
placito, his oath will oblige him more than awe—Has
seen Gentlemen in the country of great worth checked
and chid, and threatened to be fined, and has been one
of those at dinner, and the Judge dined not; and he came
sooner to the Court than expected, and fined every man
for non-attendance—The Sheriff was fined for no cause—Would you encourage this arbitrary peevishness when
they are old? Would you encourage them in this, and
punish us too? If the Grants be durante bene placito,
there is not so much occasion of complaint as by quam
diu, &c. It is taken for Law, that the Judge's tryal is
proper in the Court where the misdemeanor was committed—Makes this use of it, that, as you will fortify justice,
so fortify places of justice, who get nothing by the employment, and are fined at the pleasure of the Judge.
Lord Cornbury.] Howard instances Lord Chief Justice
Keeling's case, which, he says, was quam diu, &c.
Lord St. John.] Better for a Justice to abide a reprimand, than to have the other inconveniences mentioned.
Mr Waller.] Fifty years ago this came in question;
the House of Commons ever favoured quam diu, &c. At
that time there was a Star-chamber, when the Judges
were punished not among themselves, as Middlesex, &c.
If Judges have favoured themselves for one thousand
years, they ever did, and ever will—Upon an attaint on
a Jury there is villainous judgment, but never found by
another Jury; therefore recommends to the Committee
some other way of tryal than by themselves—Lord St.
John said, it was no great matter their fining Justices;
the only arbitrary power was fining one hundred pounds,
it may be, for a wry look, and no remedy; this makes
them Judges of Israel for life. Aristotle, in his Politics,
defines several Powers; true Sovereign Power is of "War
and Peace, calling the Estates, making Magistrates," &c.
Would know what Magistrates go out at the King's
coming in; he hears the Lord Mayor does not—Would
consider these things at a Committee.
Sir John Hanmer.] Would have a Clause against
"buying their places."
Sir Richard Temple.] Finds an exception against the
Bill, "that the Judges may arbitrarily fine, their grants
being, &c." but the party may traverse the fine, if immoderate. This Court of Parliament is the proper Court
to keep them, and all officers, in order—The Judges
declared an act treason, as said, but the Duke of Norfolk
so awed them they durst do no other; their places being
durante bene placito, &c.—Would have these sorts of men
have all the encouragements to do their duty faithfully.
Sir Robert Carr.] Has attended to hear complaints,
and finds but two cases instanced.
Sir Charles Harbord.] Has had contests with the
Judges formerly—Is against making their places for
Mr Waller.] Would have a coalition of that Bill of
Sheriffs with this. Dying Judges have told him of corruption in under-officers; the Judges sell those offices,
which is the ruin of the Common Law. They say, they
cannot be angry with the Clerks of the Assizes, because
they pay for their places—Moves to have these things
recommended to the Committee—The Clerk of Assizes is
a ministerial office, and dangerous to be sold.
Sir Thomas Lee.] As for "selling of places," believes
some are afraid; this Bill does that, being already restrained in it, and they are therefore against it.
Sir Richard Temple.] Part of the instructions is, "that
the Judges shall not fine above forty shillings, unless the
offence be found by indictment."
Sir Winston Churchill.] Fears, that instead of one King,
by this Bill, we shall be under thirteen; prays, that in
consideration of abuses, the instructions may be for
special remedies—As the Bill runs, every little Attorney
will be a tyrant, and a man may be tossed from Court to
Court, till it comes into the Judges Court, and if officers
and Judges be not very upright, the privilege of that
Court may be abused—It is unequal that the Judge should
have the privilege in his own Court, and a man have
none—He has seen and felt the experience.
Colonel Birch.] What is offered is against the Bill, as
much as can be, under Heaven—If not to knock it down,
it puts as much weight upon it as will pull it down—Desires to have these great and good things in Bills by themselves, and this without clogs.
[The Bill was committed.]
Sir William Coventry reports from the Committee ordered to
attend Lord Shaftesbury in Mr Pepys's accusation, "That, according to command, they attended Lord Shaftesbury, to know of
his Lordship what he could say about an "altar and crucifix"
in Mr Pepys's house: He was unwilling to go without his Collegues with him. They went to the Earl's house to desire to know
the time of their attendance upon him at his own house, but my
Lord would then dispatch them; which he did, without much
premeditation in the thing. My Lord showed so much his inclination to satisfy them, that they could not decline it then; and
because they had not an opportunity to set down in writing what
my Lord said, they came into the house, and did it upon the
table, and set it thus down in substance: "The Earl of
Shaftesbury denies he ever saw "an altar" in Mr Pepys's house or
lodgings. "As to the crucifix," he says, he had some imperfect
memory, before the Navy Office was burnt, of seeing somewhat,
which he conceived to be a crucifix, but does not remember
whether it was painted or carved, and, that [his memory is so
very imperfect in it, that if he were] upon his oath, he could
give no farther testimony."
Mr Garroway.] Agrees to the Report, only "imperfect
memory, and could give no farther testimony to a Jury."
The Committee had great labour to collect it. He said
they were interlocutory things, and thought that no account would be called of them—"Whether carved or
painted?" The posture of the room to be an inducement
to recollect his memory, was not urged.
Lord Obrien.] Since they were with Lord Shaftesbury,
he has met with a letter to a Member of the House, Sir
Sir Thomas Meres.] The next morning Lord Shaftesbury's Gentleman came with a letter, "That his memory
was lost in the matter, being long since, and was sorry
he could not give an evidence so clear as might be expected."
The letter was to this effect: "He never designed to be a witness against any thing he heard, or saw, at Mr Pepys's—He saw
no altar." There is nothing in the letter to contradict the Report.
Mr Secretary Coventry.] Believes there are a great
many more Catholics than think themselves so, if having a crucifix will make one.
The business was then no farther proceeded in, Sir John
Banks being not heard, who was ordered to attend on Monday