Sir Henry Winchcomb. I second the motion to remove all those persons, who sat in king James's council to the last.

Sir Wm. Strickland. I would look for what is to come, and address the king, that those who have been the authors of our former Miscarriages, may be removed from his councils. Sir Ralph Dutton. It seems, by the silence of the house, nobody is in fault; therefore pray let us go home.

Sir John Guise. Every body is satisfied that we are governed by a sort of people who may come within the Indemnity. I know not but our misfortunes are from the same hands still. When they are at the stern of the government they may do us hurt in point of trade. The Dutch have convoys for their ships, and we have none.

Sir Wm. Williams. I see men have a quiet and easy spirit upon them. I will make bold to rouse them. I move for the Bill to assert our Liberties.

Mr. Howe. It is in vain to assert our Libcrties, when men take the freedom to break them; they were always our liberties.

The Heads were then read.

Mr. Howe. There are a great many Heads to speak upon. If counsel have done ill, and we are merciful without justice, we shall do as ill. If it be their faults, it may move pity; if their confidence, it may move your anger. Some have been imprisoned, others whipped at a cart's tail. King James left Pardons to many: I would know therefore, if Pardons are pleadable against an Impeachment? If they are, we had as good except nobody; therefore I would know, whether they are pleadable, or no?

Sir John Thompson. I wonder gentlemen that carried up the Impeachment should be so silent in this matter. If this be an injury to the whole nation, I know not why they should still sit in the lords house under impeachments. I have discharged my duty to my country, do what you please.

Sir Wm. Williams. It has been said, that the laws of England are cobweb laws, that

catch small flies, and let the great ones rum through.' Whether a general Indemnity, or with exceptions,--that sticks in our teeth. You must either pass a round act, or leave out all. desperate. In the first place, take care for the crown and the government; and the next thing to do is the means, either by an universal Indemnity, or with Exceptions. If you go to particulars, then take care how far Impeachments, according to law of parliament, may be pleadable. Though I have suffered by parliaments, I will vindicate them while I live. If you will lie under your own breaches, I can shift for myself as well as another, but I will never complain of my particular. I have no Pardon. Every man needs it. I had my share-It is manifest that the commons have impeached persons. I cannot forget the parliament of 1680; what is become of those Impeachments? Not one message to the lords yet sent about them. At least we ought to come to some conclusion, how far Pardons are pleadable against an Impeachment. There are Pardons, and, I hope, learned men will not retract their opinions, that a pardon is not pleadable to an Impeachment in parliament. We are in a young government; you would not have that point lurking; cither declare that it is a bar to an Impeachment, or not; and then the king may know what to do. Shall it be said this is too hot a question for the commons to touch, and leave this to the house of commons a vexatious question, to say one thing and do another? If Pardons from a prince be a bar to Impeachments, farewell to redressing Grievances! It is a vain thing ever to attempt it again; you will be like the commons in France, to give money as you are directed. I move this for posterity, that the safety of the government may not be lost.

Mr. Hawles. It is necessary to state this matter controverted; how a Pardon can be allowed to be a bar to Impeachment: It is necessary to determine it, if persons you except have pardons in their pockets; if so, you had better pass the Indemnity without any Exception. When the duke of Northumber land, in Edw. 6th's time, had a design to bring the crown into a protestant family, the Judges were prevailed upon, by him, to give their Opinion; who said, if they might have their Pardons, after they gave, they would give them.' They gave their Opinions in one hand, and had their Pardons in the other; the whole eleven Judges. If the law of parliament in Impeachments be doubtful, it is necessary to declare it. Do it now, and declare what the law is.

Col. Birch. I think this point was debated in the Parliament of 1679,* and I thought this would not have lost your time, being to be found fully in your Journals, without a negative. By the Pardon that great lord then pleaded, he confessed himself guilty of the

*Sce vol. iv. p. 1115.

Resolved, "That it is the opinion of this house, that a Pardon is not pleadable in Bar of an Impeachment in Parliament."

Debate on the Judgments against Titus Outes.] Sir Robert Howard moving in favour of Dr. Oates's Judgment, some gentlemen hissed. He said, Such gentlemen as did it I shall not be reconciled to, unless they love whipping and perpetual imprisonment, and no confirmation of the Popish Plot. I do acknowledge the lords the supreme judicature in parliament; but I know the legislative power may repeal a Judgment they have given. The lords have affirmed the Judgment in the King's Bench against Dr. Oates, and that a minister of the Church of England may be degraded of his priestly and canonical habit there: I hope gentlemen of the Church of England are not of this opinion. This was a temporal Judgment, and lord chief justice Jeffreys gave it. The lords have worded the Judgment in one place barbarous,' and an Algerine Judgment for an English crime. With all my heart let Oates be brought to trial for perjury, but nothing can be more fatal to the English nation, than that bis testimony should be sufficient against lord Stafford, and yet he be convicted of perjury. This may confirm such Judgment for the future. The Judges all present in the lords house gave their Opinions, That the Judgment against Oates was contrary to law, and erroneous, and ought to be reversed.' Now I have said all this, I would not have Oates exempted from trial of Perjury, but not the Judgment of the King's Bench confirmed, to bave these fatal effects; imprisonment for life, pillory, whipping, and to confirm the Popish Plot, to suppress all that, and it may be to reverse the Attainder of lord Stafford, and void that trial. The lords have found no

"Oates was convicted of Perjury (in 1685,) on the Evidence of the witnesses from St. Omers, who had been brought over before to discredit his testimony: and he was condemned to have his Priestly habit taken from him, to be a prisoner for life, to be set on the pillory in all the public places of the city, and ever after that to be set on the pillory four times a year, and to be whipped by the common hangman from Aldgate to Newgate one day, and the next from Newgate to Tyburn; which was executed with so much rigour that his back seemed to be all over flead. This was thought too little if he was guilty, and too much if innocent, and it was illegal in all the parts of it." Burnet.

VOL, V.

error in the Record, and therefore have adjudged the Judgment, and affirmed all the parts of it; and now I leave you to judge, whether a Bill be not fit to be brought in to reverse all this.

Mr. Howe. It is strange that Oates, who has saved the nation-and if now there must be a question of the Popish Plot-I am for forgiving faults-The Romans had a respect for the geese that saved the Capitol, and would not let them be killed. At this rate, Johnson must be whipped again. I am so much for the Church of England that I abhor all these proceedings, and so much against the two last reigns-Possibly it is the interest of some persons that no witnesses may be believed. I second Howard's motion.

Sir Wm. Williams. If Perjury be excepted out of the general Pardon, Oates will be excepted, and you cannot remedy it but by a Bill. I speak not for the sake of Oates, but for the lords and commons. By this great example, the little dogs will bark after the great curs. The lords have affirmed this Judgment, and there is no way to void it, but by an act of reversal. It is not fit that it be mingled with the indemnity, but be by itself a reversal, that such villainous Judgment may not be executed upon any commoner to be thus treated for the future. You have no way to void it but by act of parliament.

June 11. Sir Robert Howard reported, That he, with other members, had according to the order of the house, inspected the Journals of the house of lords, relating to the Judginents against Mr. Oates: and that the Entry therein is as followeth :

"Die Veneris, 31 Die Maii, 1689. Whereas, by virtue of their majesties writ of error, returnable into the house of peers in parliament assembled, a Record of the Court of King'sbench was brought into this court on the 4th of April 1689, with the transcript thereof, wherein Judgment is entered for and on the behalf of the late king James 2. against Titus Oates, clerk, upon a Judgment for Perjury: upon which writ, errors being assigned by the said Titus Oates, and issue joined by sir Henry Pollexfen, their majesties attorney-general; and, after hearing counsel for the said Titus Oates, no counsel appearing for their majesties, on the 26th of April last past, after due consideration had of what was offered by counsel thereupon; it is this day ordered, by the lords spiritual and temporal, in parliament assembled, That the said Judgment given, on his late majesty's behalf, against the said Titus Oates, be and is hereby affirmed; and that the Transcript of the said Record, wherein Judgment is entered as aforesaid, be remitted."

"The tenor of which Judgment, to be affixed to the Record to be sent back, followeth:

Postea, scilicet 4to Die Aprilis, Anno

* Lord Russel's chaplain, most cruelly whipped, fined, pilloried, &c. for his writings,

in 1686.

U

freys's Judgment, which condemns all we have done. I move for a Bill to repeal this Judgment.

Serjeant Maynard. We do not know yet what Judgment this is, affirmed by the lords. I desire the Judgment may be read.

Sir Wm. Williums. Read the Judgment, and then you may have recourse to the Record,

on occasion.

Serjeant Maynard.* I was in court when Oates was tried: he was indicted on two points; such a thing, such a time such a day, but he was not there at that time, and pleaded Not guilty. There were 18 or 19 Jesuits sworn against him from St. Omers college. I never saw evidence delivered with more vigour than that was. He would have begun with the latter, but the Chief Justice told him, that was his worst way-Truly if he was not at St. Omers at the time, all would fall.' I was present when he gave his Evidence in this place; he said it once, and twice, and varied it not, but some would have it a third time. I was against it. He was asked particularly here of a person of quality; he could not say it was the duke of York. His evidence was affirmed by several trials. It cannot be imagined who should suborn him. Two of his servants were suborned to swear things against him of a filthy nature. These two witnesses were examined, and it fell out, one crossed the other in the evidence. Says one, It is true.' Says another, It is not true.' Why should these two servants swear voluntarily against Oates, unless suborned? There is a man called sir Roger [L'Estrange], who, under the pretence of maintaining Church, publishes, That Oates alone was a single evidence against the duke of York; and, that every magistrate, or chief governor, may forbid any religion, and to do this, the king has two advantages, he has law, and arms.' This sir Roger published before Oates's trial. Whether true or false, Oates was an enemy to the Popish religion. I speak this but to the purpose, eight or nine swore positively he was at St. Omers, and he had evidence to prove that he was not. He was convicted of perjury only in matter of time, which he had four or five witnesses to prove, bot could not be beard.

Mr. Hawles. You have heard of some people that disown the government, and disperse pamphlets; and no wonder, when the worst Judgment that was ever given in law is affirmed by the lords. There is no such Judgment in law against any man, nor ever so exacted, and this gives occasion for people to talk, that one house was for it, and another house against it.' This verdict cost the king two thousand odd hundred pounds. I have known, that when a jury have had a guinea more given than or dinary, that verdict has been set aside as if given amongst them. If a jury goes against the humours of the court, as in Willmore's Case,

"The Compiler heard him imperfectly." Grey.

and others, they are browbeaten, and as the jury are used, so are the witnesses. I would have this Judgment against Oates called a cruel and illegal Judgment,' and so to vote it.

Serj. Maynard. To vote this Judgment so here, will not do your work, for here is the Judgment of the lords against your vote; you must do more; for when there is a Record in the King's-bench, there it remains. I would not meddle with the Judgment that the lords have given, but you may complain of it as a Grievance, and may so take notice of it as a stab to our liberties. Vote this illegal, and you have the Opinion of the Judges in the lords house with you; vote it a Grievance and you may have this Judgment cancelled.

Sir W. Williams. I think this will be too little. The lords are a court, and have recorded their Affirmation, and it is past their power to reverse it, and it is not safe for the Judges to give another Opinion in the King's-bench; but if they have the countenance of this in the King's-bench the lords themselves may feel it. This man is a clergyman, and to be unrobed, and divested of his orders in the King's-bench, and so to continue during his life-how a court of law can do this, I am unsatisfied. But what we are to consider of is this, whether a subject should rest under that judgment. There may be a precedent for whipping, but for all these parts in one Judgment, let any man give us a precedent to square with that Judgment. It makes the Judges arbitrary, and hereafter the Judges may be most injurious in punishing, this Judgment having bad this sanction in the house of peers. This is the case; and what is there fit for us to do? but one thing; and that is to reverse the Judgment, by act of parliament. Go in the ordinary way of the legislative power, and not by the declaring this or that, but a reversal of that Judgment, as illegal. If we vacate the Judgment only, that will not do; the consequence will be that we must admit it for the future. But if, by law, you declare it illegal and erroneous, there is an obvious objection, 'that the lords will not agree to the Bill;' but that is no answer to me, for the lords will do it, and have reason for it, for the Judges gave their Opinion against it, (but that is not upon record). I do not deliver it as history, but it confirms my opinion, that you have opportunity to reverse it by Bill, as illegal, and that is worth a thousand votes. The writs of error that Oates brought are upon two records, and they are both entered affirmed in the King's-bench, so that it cannot be vacated but by Bill of Reversal.

Col. Birch. We are now a great many gentlemen met here, who were not here in the examination of the Plot. According to my place and ability, I had in the chair much of the Examination that went through my fingers, which was so clearly proved, that all England was satisfied, as well as the lords and commons. I know no blow can be given like this to the

lords and commons. We well know who they were that did what they could to make this