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Lord Fanshaw. I have been under a long indisposition; and though I have been about town, in the evenings, yet I was under a course of physic and diet; and since I was absent, an Act has passed; and being not qualified by taking the Oaths, I could not properly appear here. The Speaker. But, my lord, are you willing to take the Oaths now you are here?

Lord Fanshaw. I must give a plain answer to that question: I am not satisfied to take the Oaths. He then withdrew.

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Col. Austen. I believe that, though persons within these walls may be concerned, it will be done with all worth; but let things find out persons.

Sir Tho. Clarges. That Act of Indemnity of the 25th Ch. 2, I hope, may be the better precedent. Consider, first, what Exceptions you will make; and next, what shall be pardoned; and next, consider that of 12th Ch. 2.

Mr. Sacheverell. Crimes of state are never to be forgiven. Name what crimes are not pardonable, and they will find out the persons. Mr. Carter. If I take it right, the king has given us some measures. If offences against the government are so far in the dark, you will never find out persons. There is some discourse, without doors, that if we go about things, we shall set the whole nation on fire. I hope the king's direction will be most accept able to the nation.

Sir Rob. Howard. I would willingly hear

"The king thought nothing would settle the minds of the nation so much as an Act of Indemnity, with proper Exceptions of some criminals that should be left to justice. Jeffreys was in the Tower, (he died there soon after,) Wright, who had been Lord Chief Justice, and some of the Judges, were in Newgate; Graham and Burton, who had been the wicked Solicitors in the former reigns, were in prison; but the hottest of the Whigs would not set this on. They thought it best to keep many under the lash; therefore they proceeded so slowly in the matter, that the Bill could not be brought to a ripeness during this session."


that Act read; and many things in it must be in this but there are new-invented crimes in this age, that this Act cannot reach. We must go by things and men, and then by such things and men as no age ever saw. I know we have a large field of things and men: things of the worst nature are the largest field; therefore consider the nature of things; and if I ever move in favour of thing or man, I will tell you the reason, and unless some merit induce me to it.

Sir Rd. Temple. I agree with Howard in all but his last motion; not that I am an advocate for any person, but for the whole nation, if things involve many you would not. Treasons are always excepted in any general act of parliament. If we go to persons, we shall agree, for we all know them; if to things, we are in a wood, and shall never get out of it; and I despair that the Act will ever come to good. I would put men's minds in peace, and make examples only of notorious


Sir Henry Capel. If it be the sense of the committee, that all shall be forgiven, I am content; but what we do, is for satisfaction of the government, not that any gentleman can be pleased with this. I think to begin with things; and to prevent heats, I take this idea; as if in the country, they complain of hardships from the Judges, men of the robe, who throw dust in the eyes of juries; so if you take consideration of crimes against the laws, and the government, use the rest with what moderation you please, either by fines, or otherwise; and begin with things.

Sir Joseph Tredenham. Consider of what consequence it will be to make a multitude of offenders. There are many offenders, and you know who they are. We know the great men that have offended in the open light. There is no other end in this Bill, but to reconcile men's minds to the government; and those you declare obnoxious, and it is no severity upon them, we know. When France was in combustion, it was the great care of Henry 4 to punish some, and leave the rest in some degree of favour. I desire, therefore, that you will proceed against persons that have been the most notorious offenders.

Sir Robert Cotton. The king has sent a gracious Message to us about an Act of Indemnity. No government can be so secure, as when satisfied that they have a gracious merciful king. I know the consequence of the beginning of the last government. Those in the West did see such a shambles *, as made

*" After Monmouth's Rebellion, Jeffreys was sent the Western Circuit, to try the prisoners. His behaviour was beyond any thing that was ever heard of in a civilized nation. He showed no mercy, and hanged up in several places about 600 persons. And the king took pleasure to relate his proceedings in the drawing room, and at table, calling it Jeffreys's campaign,'" Burnet.

them think they had a Turk, rather than a Christian, to their king. If you proceed that way, of enquiring into things before persons, you will leave such jealousies in people, as that they will not think themselves safe; it will go so large, I fear it will hazard the peace and safety of the nation. The great wheels, the primum mobiles, that have gone so violently, and brought us into this confusion, I move that you will proceed against them, and that the king's gracious intentions may have farther effect, and those only excepted.

Mr. Harbord. I hope you will not pardon any of those crimes condemned by law already: they that changed their religion. You are hard put to it, to find out Money. Great men of 8, er 10,000l. per ann. I hope, may help you. You punish men that do not take the Oaths and the Test, and will you not punish those who have renounced God Almighty? I move they may be excepted.


Mr. Harley. I think the king in his Message bas led us, and showed us how to proceed for satisfaction of justice. There is a crime,' God says, he will not pardon,' innocent blood. A gentleman said, The West was a shambles of their quarters;' and what made that shambles? It began in law. It was the common discourse amongst the ministers, that the king cannot have justice, and, in order to that, began the violation of the City-privileges, in the choice of their sheriffs.


Sir Robert Howard. In those that were perverted and changed their religion, it was treason. Suppose you name the man, there must be an appendix of his crime; and must that man be a sacrifice for that particular thing? So whatever man you name, you must name the thing. If there must be so general a forgiveness of all, you must go equal. You must either take notice of all, or forgive all things, that the invention of times has found out of equal nature. In the Bill for repealing

col. Sidney's Attainder, you repeal the murder, but not a word of the murderers: shall it be excused upon direction of the Judge? We know what we did with lord chief justice Keeling. Try one way first; name any one man, by experiment, upon any one head.

Sir John Lowther. To reduce matters home, without foreign examples; we had often occasions for general pardons, formerly, when families thrust one another out of the throne, and then there was great need of pardons for the subject. When lord Strafford was charged in parliament, and other great exorbitancies, though the crimes and offenders were many, yet it was agreed, that such a number should be named, who should be excepted out of the general Indemnity. We are resolved, that these shall be prosecuted by the Attorney-General, and we need not descend into particulars here; but by general ideas, and so excepted.

Mr. Hawles. I am for excepting persons by particular names; but we are now only upon methods. Certainly, upon things, you intend not to pardon murder, nor robbery, &c. but now if you enquire into things, you will utterly destroy the government, which in king Charles 2's, and all king James's time, was as ill as the French government. Instance in Cornish's Trial, one of the most barbarous trials! Had I been concerned in it, I should have thought I deserved death as much as Vrats, that killed Mr. Thynne. Make it, that the Indemnity shall not extend to such and such persons, or such and such things.

Sir Rd. Temple. If you name the crime, you may involve more than you think of. Do you mean every man that had the least share in it? I mean only the notorious persons. Persons have had pardons, and you must void all those pardons before you can reach them; you must not hunt the herd, you will never single any. I would begin with the Chancellor,† a lawyer, and he to destroy all law! I would except him from pardon in his honour and lands.

* Son of sir Edward Harley, and Speaker in the two last parliaments of king William, and the first of queen Anne. In 1704 he was made Secretary of State, which he resigned in 1707. In 1710, he was appointed a Lord of the Treasury, and Chancellor of the Exchequer. The next year he was created earl of Oxford, and soon after was appointed Lord High-Treasurer, which place he resigned four days before the queen's death. In 1715, he was impeached of High Treason by the house of commous, and was soon after committed by the lords to the Tower; but being tried two years after was unanimously acquitted by his peers. Burnet's character of him at this time is as follows: "Harley was a man of a noble family, and very eminently learned; 'much turned to politics, and of a restless ambition. He was a man of great industry and application; and knew forms and the Records of parliament so well, that he was capable both of lengthening out and of perplexing debates." He died in 1724. VOL. V.

"At the beginning of king James's reign some base men tried to save themselves by accusing others. Goodenough, who had been under-sheriff of London, when Cornish was sheriff, offered to swear against Cornish; and also said, that Rumsey had not discovered all he knew. So Rumsey, to save himself, joined with Goodenough, to swear Cornish guilty of that for which lord Russel had suffered. And this was driven on so fast, that Cornish was seized on, tried, and executed, within the week. If he had got a little time, the falshood of the Evidence would have been proved from Rumsey's former deposition, which appeared so clearly, soon after his death, that his estate was restored to his family, and the witnesses were lodged in remote prisons for their lives. Cornish, at his death, asserted his innocence with great vehemence, and with some acrimony, but a just indignation, complained of the methods taken to destroy him." Burnet. † Jeffreys, then in the Tower.


Sir Henry Capel. Temple says, If you proceed upon things, you will engage those you would not;' but are not you masters of your own methods? To answer Lowther, if we are to except nothing but treason, we are in a parliamentary way, and may declare treasons. As for the scizing Charters, there was nothing like that; that cuts up all your liberties by

the root.

showed, I shall be as forward as any man, but I think justice is necessary. If you go on in this way, you will hardly come ashore. If you enumerate all sorts of crimes, you will go the farther from your end, they are so many, and of so many sorts; one of the greatest crimes that struck at your foundation was that of blood. But the foundation of these things was laid so early, that it will be a great way to look back. How many are concerned in the greater degree, and how many in the less, as particeps criminis? This will be a very long resolution. Now whether the men, or names of crimes, shall be first? To save a friend, that will be impossible to wrest out of human nature, but your end is to terrify men for the future. What is else the end of decimating armies? When the Act of Indemnity passed in 1660, (perhaps in as great a Revolution as ever the nation was under,) you set down 10, or 20, (I will not offer the number now) excepted for life, and so many for pecuniary mulcts, and incapacity of offices, according to degrees of crimes.

Mr. Garroway. I am at a stand what I shall offer for your service. If you go to capital crimes, you will be tender, and go but a little way. I would not dabble in blood; I would, from my heart, forgive them, but from pecuniary penalties I would not exempt them. You turned two out of the house yesterday, for refusing the Oaths. You will not think such a man fit for employment upon the first head, resolve what you will make capital, then for fines, and not to bear office for the future.

Col. Austen. I hear it said, that people guilty of these great crimes, are known; but I lived in a sphere, at such a distance, I could not know them. The work has been done by a spirit in the dark, and unless you conjure down this spirit, you will never attain your end. Here has been something said of a Proclamation, &c. I would set up marks of severity for public justice; this is part of the king's directions. I would distinguish the things, and let the persons be who they will.

Sir Christ. Musgrave. I think there is a necessity to proceed upon persons, and not things, because you are told, from the bar, that possibly the offences may not be Treason, by 25 Edw. 3. but by your legislative power, you may proceed by Attainder.' If so, then proceed as tenderly as you can, because it is a declaration of Treason, and is always made as little use of as possible. For this occasion your Bills of Attainder will be without number; therefore I move that you will proceed upon persons, and not things.

Col. Birch. I think it absolutely necessary that you come to some conclusion before you rise. I would not leave the matter under an alarm, but, before you rise, leave them to what they shall trust to. If things must find out persons, you are in for a great while. Methinks you may go a nearer, and a surer way; for when you come to an Act of Oblivion, I suppose, (I dare not impose) you resolve to name your number capable of suffering life or limb, suppose 20 or 40, or as many as you will, (I am but for a small number for life or limb) and that blank be filled up; and, for all others, though not excepted for life or limb, yet I would except them from bearing any share of the government. The thing I drive at and design, is, to make an end. Put a certain number, and you will put the nation out of fear, and you have done your work.

Sir Rob. Howard. When you name Heads, let it be under death, fine, or incapacity of bearing office; then you will be easier under all the debate.

Mr. Hampden, seu. Where mercy is to be

Sir Henry Capel. Will not you except the bloody Judges, and those who were of opinion for the Dispensing Power? When you have passed the Vote, cannot you except what persons you please.

Sir John Lowther. I believe it impossible to name crimes before persons; the season of the year cannot admit it. If you enquire into circumstances, the first promoter and adviser, if you keep this in suspence, it will be the greater dissatisfaction; therefore I am for naming persons before crimes.

Mr. Garroway. I am still of the same opinion that you will sooner come to your end, by voting Heads on capital offences, and then go to your men. I am not for 40 nor 15, but put it upon that head not exceeding ten ;' you may have guesses at names, and put in, as in the last Indemnity, the greatest number. If named openly, there may be misfortunes and feuds of families hereafter.

The Speaker. Garroway mistakes. There was no such balloting as he mentions. In the Convention, it was only for sending gentlemen to go commissioners to the king into Holland. Then for excepting persons out of the Act, the first Vote was, but 7 for life, and 20 more for other pains and penalties,' and those were nominated in the house.

Mr. Hampden, sen. I rise only to rectify Powle. All the regicides in the Act of Indemnity, 1661, were notified by the crime; the rest, for other offences, were deprived of bearing offices. Many of the house may remember there was a long debate upon the persons upon whom the Proclamation went out; it was a great debate, whether they should be hanged, or not, because the Act said, they should not be pardoned.'


Resolved, "That it is the opinion of this committee, That, in proceeding upon the Bill of Indemnity, the Crimes shall be first declared, for which some persons shall be excepted, for

vindication of public justice." Agreed to by

the house.

Heads for a
The Griev-

May 16. The debate on the Bill of Indemnity was resumed. ances in king James's time being read, Mr. Harbord. The greatest offender of all the peers is turned Papist, lord Salisbury.

Mr. Boscawen. According to this head, the capital offender is dead (lord chancellor Jeffreys) I would therefore have him attainted, and his estate reduced to the same condition as when he began to offend, and his posterity incapable to sit in the lords house.

Col. Birch. That which lies heaviest upon the nation, is blood; you have several Bills to reverse Attainders. I would have some blood, though little, rather than be stained with what they have shed.

Sir John Lowther. I know not how far you will proceed, whether with all equally criminal. I suppose you will make distinction of those who gave opinion for the Dispensing Power, and other offences; how far you will proceed upon it I do not know, seeing you were tender in not taking away all Dispensing Power. They cannot all be punished, therefore say how many persons you will exempt.

Mr. Harbord. Begin with the Lord Chancelor, attaint him first. I will say something to induce you to it. Sir Thomas Armstrong's was a most barbarous case *, and his proceedings in the Westf.


Mr. Palmes. The last day, the Committee had order, that crimes should precede persons.' Determine what crimes shall be capital and what mulctuary, before you begin.

Mr. Boscawen. It is a harder matter to say what this man was not guilty of, than what he was. Lord Russel's Trial before-and after be came into the West.

Sir Robert Howard. I think you have a particular engagement to go upon this man first. In sir T. Armstrong's case he committed murder, and without the help of a jury. By the statute of Edw. 6, outlawries were confined to 12 months. He came in within that time and surrendered himself in court:


"When Jeffreys came to the king (Charles) at Windsor soon after Armstrong's Trial, the king took a ring of good value from his finger, and gave it him for these services: the ring, upon that, was called his Blood-stone.'" BurThis was in 1684. Sir T. Armstrong had met the duke of Monmouth and lord Russel, &c. at Shepherds, and afterwards made his escape to Leyden, where he was betrayed and sent over by Chudleigh, the king's envoy. + See note, p. 244.



"This being a point of law, he desired counsel might be heard to argue it. Jeffreys rejected all this. He said, the king might either after a trial, or not, as he saw cause;' and he refused to hear counsel. Which being demanded upon a point of law, the denying it was thought a very impudent piece of injustice. And when Armstrong insisted, that

though they alleged he was forced to it; therefore this is a particular case.

Mr. Hawles. Suppose you except a man that is dead, a dead man cannot be tried, nor pardoned. I think it proper to say, what persons ought to be excepted, and when you enquire, you will find the Chancellor very little more guilty, than those who lately passed the Proclamation, little less than the Dispensing Power.

Sir R. Temple. In the Ecclesiastical Commission he was the sine quá non, and in all the business of the West. If you go on upon the thirty Heads, you will involve more than you intend. I move, That the late Chancellor and his heirs may be excepted out of the Indemnity, in order to Attainder." Major Wildman. When I consider that the house spent four hours on crimes and persons, if you keep your own Order, you are not to meddle with persons now.

Mr. Harbord. I would except out of the pardon all who gave opinions with my lord chancellor, for the Dispensing Power.

Mr. Garroway. I think the Head of the Dispensing Power is what you can best make out. That is a breach of their oath, and a great one, and of that you have the judginent of the lords and commons, for breaking their oaths. In this I care not bow narrow; but as for mulcts upon them, I would not destroy families, but leave them a livelihood, and no more. For other offences, something may be said in law, but not for this.

Sir Joseph Tredenham. I cannot be persuaded that giving the king advice in the Dispensing Power be made capital. If we make the words general in the question, that of so many persons equally guilty, some few should be given up for a sacrifice-I believe it first an invasion of our rights, but the exercise of it long became a common error, and, I think, if they are not guilty of some other offences, this is not sufficient. I move that the Question may be a little more distinct, and say, as the Dispensing Power was of late executed.'



Sir Henry Capel. I never thought to have heard an argument within these walls for an universal Dispensing Power. We are slaves if it be so, and no freer than in Turkey. We know the king has prerogatives, but to say, 'he has a Dispensing Power,' is to say, there is no law.' He says, this Dispensing Power grew in upon us by time;' and is it therefore good because practised? The foundation of all our misfortunes is, That the Judges gave their Opinion for the Dispensing Power, and I would have them excepted in the Act of Indemnity.

Mr. Hawles. The Dispensing Power was the last grievance, and a bloody sacrifice to


he asked nothing but the law,' Jeffreys, in his brutal way, said, he should have it to the full;' and so ordered his execution within six days. And the law was exec ted on him with the utmost rigour." Burnet,


the prince's pleasure, to the subversion of the whole government. The king might dispense with some obsolete laws, but no statute since 250 years ago was dispensed with till these three or four years. If this must pass for doctrine, we may go home, and the king may raise what money he pleases, and he may dispense with the Statute de Tallagio non concedendo,' and raise what taxes he pleases. King Ch. 1. would have been at it, and had Judges for his turn, who would have exercised this dispensing power as well as the Ship-money. Some people king James put out of office, though qualified,| and some were put in unqualified. They began with Dispensing with the Act for Hackneycoaches, and by degrees would have done so with all the laws. I am for declaring this very illegal, though not all to be punished alike; for some did it out of weakness, others out of fear, and not out of the dictates of their judgment. As for the King's Counsel, if the Attorneys and Solicitors, with tufted gowns, impose upon illiterate men, pardon the illiterate, and punish the learned counsel. Just so do it; if otherwise, you throw up all your laws and statutes.

now you are about to defend the kingdom, and these men not to assist you, they may introduce Popery. Have we not known them in Jesuits habits, and were told it by Oates and Bedlowe? Under this mask, according to the Holy Scripture,' (the words in the Bill) you hazard the government both of Church and State.

Sir R. Howard. I would serve you with a question, if I could. The gentleman who spoke over the way, ever gives instruction; I am sure he does to me. This is the doctrine; because a Non obstante may be given man by man particularly, it should be used judicially, Forbidding protestant books to be printed, and dispensing with popish books, asserted and allowed. Here is a general execution armed against us; first by books, and then by public power. The Papists are armed against us. When the Goths and Vandals over-ran Rome by an illiterate sort of men, Machiavel confesses there was a secret providence. When these men over-ran us, comes the prince of Orange and over-runs all accidents by his prudence, and saves us with deliverance from the Dispensing Power. But to wind up the question of Dispensing Power, they have done all these things to destroy, and we must look upon those who have given this opinion in judicial places, as fit to be excepted in the Act of Indemnity.

Sir Wm. Williams. There are two parts of the law, the constitutive part in the king, lords, and commons, and the executive part, lex loquens, in the judges. The other is a tacit law, and a silent law; they make the law speak, and men feel it. Is any thing more pernicious than the Dispensing Power? There is an end of all the legislative power, gone and lost. Right your legislative power, and your judicial law, and all will be set right.-[To proceed on the 18th.]

Debate on the Bill of Indulgence to Dissenters.] May 17. Mr. Hampden reports from the Committee, several Amendments made to the Bill of Indulgence.

Sir Henry Goodrick. I move you to give no Indulgence to them, who will give no Oath in evidence, but their Yea and Nay, Quakers:

Mr. Paul Foley. This is much mistaken, that the Bill gives liberty to all persons. They are not at liberty. They must subscribe, and there is a law in force already to tie them up from preaching against the Church of England; you are only tying them from teaching contrary to their subscription.

Sir Tho. Littleton. I am sorry to see some in the house differ from what they were at the committee: in an incomprehensible part of religion, we thought the Scriptures the best guide.

Mr. Hampden, jun. The Test is against the doctrine of Popery, which the Quakers take as you do, but to declare Allegiance to their majesties is not named, because they own no titles. In France there was a toleration to Protestant preachers, and they were not to preach against Popery, but they wrote against it, and so came within the penalty.

Sir Tho Clarges. The gentleman reporter forgets to tell you, that the Quakers said nothing of this at the committee. According to the Holy Scriptures,' is a large field. They must not write nor speak against the doctrine of the Scripture; which will be full of contro


Col. Birch. I beseech every gentleman to consider that those ways are commonly the best, that are most trodden. These sort of people have been in the shambles these 20 years, and I never thought they would come so near us as in this Declaration, and now under a doubtful word, to throw out all that has been done! I am glad these Articles of Religion are so far agreed to by the Non-conformists. I like the Articles of the Church of England very well, but the Scriptures much better; the Apostles still tried all things by the Holy Scriptures. Having brought the Quakers in so far, I hope, in time, we may do it farther.

Mr. Ettrick. I am as much for Indulgence to tender consciences as any body. If I apprehend right, they are not to preach against the Doctrine of the Church, as it is in the Articles. As to belief, believing it is as they please; the only thing to be restrained is, not to write against it, and that only to be remedied. They say, The Doctrine of the Trinity is no more to be proved, than Transubstantiation.' Restrain them, that by writing they may not fill the world with endless controversies and disputes.

Sir Rob. Howard. I am rather of opinion with the committee, than of the lords Bill. I have for 7 years desired such a bill without success. In this point, you will give occasion for dispute and controversy. To tell a man, ' he shall forbear to write against a thing,' is

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