« ПредыдущаяПродолжить »
June 4. Mr. Howe. I have an eye only to the present faults of the present government(I mean no reflection upon the government.) But I see we have no Fleet gone out, and the French are coming out. I thought all the wisdom in the world could not have brought us to the pass we are in, much less the indiscretion. Qui non vetat, prohibet. I suppose it is the duty of every man in the Council to press forward in these affairs: for the miscarriage there is no question of. I should be sorry to put the scandal upon any man, but we must do something for the safety of ourselves. I look after being delivered from popery and slavery, that is all I desire to be delivered from; but I would have those persons that are obnoxious withdraw themselves, without any farther trouble; but I cannot believe that those who have sat in council with king James to the last, are fit now to be in council.
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
through. Whether a general Indemnity, or catch small flies, and let the great ones run with exceptions,--that sticks in our teeth. You must either pass a round act, or leave out all. As long as this hangs in the air, men will be 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. 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 bave 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, 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.
charge; that case we all know, and, when it is farther debated, I will tell you my thoughts. It will be necessary that the king should know, that no Pardon is pleadable in bar against an Impeachment of the house of commons.
Sir Joseph Tredenham. Though the Pardon mentioned was pleaded to an Impeachment, yet it never came to an Act of Attainder. I remember, in the debates then you had some precedents of Edw. 3, of some that pleaded Pardons. The Spencers in Edw. 2. In Rd. 2 were pardoned Impeachments in parliament. Not that I stand in justification of persons accused, but certainly it is for the advantage of the crown, and its prerogative is to its own benefit. I would have a matter of this dangerous consequence remedied by a Bill, but I Lelieve it is not law already.
is not pardonable, because it is at the suit of the subject, and an Impeachment is an Appeal of all the commons of England. He mentioned an address in Edw. 3.'s time, that no Pardons should be to persons impeached,' and it was resolved in the negative, and the commons sat down by it; but God forbid, all Addresses should be objected, which are done in modesty! Can he give one instance; that ever a pardon of an impeachment was allowed in parliament? The law of reason is for it.
Sir Rob. Howard. I have no mind to speak for this case, that the commons should have this turned into a law; we should be so fatal a people that all your Petition of Right would be damned by it, and must that have a blemish upon it, because you desired it? And you confess it is not law, because you desire it to be made law. If that argument be so, whatever you desire to be a law, is not lawful till confirmed.
Mr. Ettrick. The lawyers of WestminsterHall know little of this matter. It is of great consequence one way as the other, either to the king's prerogative, or the right of this house. As to the inconvenience, it seems extremely wrong on one side, if one way, he must have a pardon; and in pleading that pardon, if the lords should hold the law to be otherwise than you do, you will have a foil in the matter. The king's prerogative will have a great consideration here, as well as in the lords house. I move that you will go on with the Heads of the Indemnity.
Sir Henry Capel. I have observed, that of late years great attempts have been made against the government to pluck it feather by feather. If we have nothing to do here but give Money, is it a parliament, or a senate of New Rome, to set rates upon fruits and chesnuts? It is of the greatest consequence in the world that saying, That the king does no wrong; but who must be answerable for the Miscarriages in the government, but the ministers? In Germany, though he be a sovereign prince, he is accountable to the Assembly of Princes for his actions, where all things may be redressed. If the king's ministers, after ill administration in their places, may plead their Pardons, you have not one king but twenty. I would have but one king, and the ministers, who are our fellow-subjects, are questionable as ourselves. You are told of a Bill of Attainder, and that is a summary way of proceeding, you may read it; but if not by Im-peal to an Impeachment, and then a parallel peachment, it is a good way to prevent all procase will carry it. The king cannot pardon, in secution of offenders. Pray put the question, a private case of an Appeal, much less what is "That an Impeachment of the house of com- against the public. As to what is said of mons is a bar to all Pardons." the statute which takes away appeals of treason, it was from private persons to appeal one For-another in parliament, as in the case of lord Mowbray, and the earl of Hereford, they were private animosities. If you allow Pardons, there is an end of the case, and they need not plead a pardon in bar, but in abatement only. In that mentioned of Edw. 3, &c. there is a little weight in that.
Mr. Hawles. Something of the king's prerogative I hear offered, but if we go to the precedent or judgment upon pardons pleaded, we must go to a parallel case. This is an Ap
Mr. Brockman. I wonder this should be sɔ debated now. I remember a stamped pardon by creation. I appeal whether this did not formerly occasion conferences? Lord Anglesea managed for the lords, and as great a debate was upon it then as now, and the lords agreed, that it was no bar to an Impeachment;' and in the next parliament was the same thing debated, and another debate did arise of the continuance of Impeachments in intermission of parliament; and it was concluded, That in intermission of parliament there was no discontinuance of Impeach
Sir Wm. Williams. I am called up by Temple: he has refreshed my memory. If a sub-ments.' You may see the Journals, that all ject be murdered, the next of kin may bring an Appeal, and for that reason an Impeachment
this is true in fact.
Sir Christ. Musgrave. If that be already
Sir Rd. Temple. If it be so, I would declare it, but if not, make no reflection on it. merly there were Appeals of Treason, and those the king could not pardon; but by Hen. 4, all appeals of treason were taken away; as well as in murder and felony, the king could not pardon. I would gladly hear the Long Robe declare that this is a law. I should be glad if we could come at it, and I should have no tenderness for those who have violated the laws and liberties. You may make void Pardons, by act of parliament, as in the case of the archbishop of York, which was voided. I profess, I am doubtful, when no man has acserted this to be the law of parliament. It is not in the house of commons to declare law but in a christian way, and an Act may be made, for the future, to settle the matter. I would not assert a thing we cannot make good elsewhere.
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 his 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 have 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 Judgments 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,
• Regni Domini Gulielmi, & Domina Mariæ, | the points objected against Mr. Titus Oates his testimony in several of the Trials; which he was allowed to be good and credible witness, though testified against him by most of the same persons, who witnessed against him upon those Indictments. 4. For that this will be an encouragement, and an allowance, for giving the like cruel, barbarous, and illegal Judgments hereafter, unless this Judgment be reversed. 5. Because sir John Holt, sir Henry Pollexfen, the two Chief Justices, and sir Robert Atkins chief baron, with six Judges more (being all that were then present), for these and many other Reasons, did, before us, solemnly deliver their Opinions; and unanimously declare, That the said Judgments were contrary to law, and ancient practice; and therefore erroneous, and ought to be reversed. 6. Because it was contrary to the Declaration on the 12th of Feb. last, which was ordered by the lords spiritual and temporal, and commons, then assembled; and by their Declaration, ingrossed in parchment, and inrolled among the Records of parliament, and recorded in Chancery; whereby it doth appear, that excessive Bail ought not to be required, nor excessive Fines imposed, nor cruel nor unusual punishments inflicted. (Signed.) Bolton, Bridgwater, Stamford, Bolingbrook, Herbert, Vaughan, Macklesfield, Oxford, Bath, Grey, Cornwallis, R. Eure, Wharton."
nunc Regis & Reginæ Angliæ, &c. Primo Transcript' Record' & Process' predict' cum omnibus ea tangen', prætextu cujusdam brevis de Error' corrigend' pro præfat' Titu' Oates in Premiss' prosecut' predicti Domini Regis & Reginæ in præsen' Parliament' à predicta Curia dicti Domini Regis & Reginæ hic transmiss' fuit, prædict' Titus in eadem Curia Parliament' comparens diversas Causas & Materias pro Erroribus in Record' & Process' prædict & Revocatione & Adnulla⚫tione Judicii prædict' assignavit; et postea, scilicet 31 Die Maii, Anno dicti Domini Regis & Reginæ supradict, in præsent' Curia Parliament' predict' Visis & per Curiam ibidem diligent', examinat' & plenius intellect' tam Record' & Process' prædict' ad Judicio super eisdem reddit' qu' predict' Error superius assignat, pro eo quod videtur Cur' Parliament' predict', quod Record' ill' in nullo vitiosum aut defectivum existit, & quod in Record' illo in nallo fuit errat', ideo ad tunc & 'ibidem Cons' est per eandem Curiam Parliament' prædict, quod Judic' prædict' in omnibus affirmetur, & in omni suo robore stet & ' effectu.'"
The two Judgments in Hilary Term, 36 et 37 Car. 2. against Mr. Oates, for Perjury, were also read. After which,
Sir Robert Howard also reported, That the affirmations of Judgments are entered upon the respective Rolls, upon the writs of error returned before the lords in parliament. And that there is entered, in the Journal of the lords, the Protestation following:
"The lords having heard the Opinion of all the Judges, concerning the illegality of the two Judgments against Titus Oates, upon the point of Perjury, for which he hath his writs of error into this house, to have them reversed. The house upon consideration, and after long debate, had this main question proposed, Whe-pists. ther to reverse the two Judgments given below against Titus Oates, in relation to the two Perjuries. The previous question was put, Whether this question shall be now put; it was resolved in the affirmative. Then the main question was put, Whether to reverse the two Judgments given below against Titus Oates, in relation to the two Perjuries. It was resolved in the negative.-Leave is given to such lords as will, to enter their Dissents: and, accordingly, these lords following do enter their Dissents in these Reasons ensuing:
1. "For that the King's-bench, being a temporal court, made it part of the Judgment, That Titus Oates, being a clerk, should, for his said perjuries, be divested of his canonical and priestly habit, and to continue divested all his life which is a matter wholly out of their power, belonging to the ecclesiastical courts only. 2. For that the said Judgments are barbarous, inhuman, and unchristian. And there is no precedents to warrant the punistiments of whipping, and committing to prison for life, for the crime of perjury; which yet were but part of the punishments inflicted upon him. S. For that the particular matters, pon which the Indictments were found, were
Sir Robert Howard said, I should not have troubled you with this matter had I not thought it as great a thing as could come in parliament. I am zealous in one thing, not to blacken all things relating to Protestants, and whiten PaThe rise of this began upon the condemnation and censure of two parliaments, in the business of the Exclusion of the duke of York, &c. Then it was when a Popish successor was thought no ill thing by the lords, and then it was that a Popish successor was excluded by you; when the strenuous assertion of that became a merit at court, then the attributes of a Popish successor were asserted; to secure this great business, to secure a Popish successor, came on the surrendering charters of corporations; when Judgments of law came to be given on the person, not the cause considered, there grew the rise of a Popish successor, the violation of the choice of sheriffs, corruption of judges, and their extraordinary censures, which produced this Judg ment on Oates and Johnson, one of the greatest persons of the nation: he suffered under this, and was stripped of his ministry. I am heartily sorry this is come before us, but I am afraid that the affirming that Judgment condemans all we have done, and whatever the Papists have done is justified, and the Protestants condemned. Oates is the least of my thoughts, but to have Oates's Judgment confirmed, and we all reproached for it, that sticks with me. Unless we are grown fond of Jef
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. Williams. 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, but could not be heard.
Mr. Howles. 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."
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 had 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 Rever sal.
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