Dublin Castle, the 18th of May, 1689, in the fifth year of our reign. God save the King,' Mr. Garroway. You have now some names of persons taken with these Declarations; and when you charge any by Bill, you may add these; and I hope it will strike such a terror upon others, that you will have the effect.

peachment. As for sending to the lords, to order the Attorney-General to prosecute these, have we not a king to command his officers, and judges to try them? For many reasons offered, and many more that may be, I am for impeaching.

Sir Wm. Williams, If you proceed against him in the King's-bench, he cannot be tried till next term. If he be tried in London by a special Commission of Oyer and Terminer,— I like well trial in the King's-bench, solemn in the face of the kingdom; but if he be im

nations to-morrow.

Mr. Hampden. I think we are under some dispute, to vote before we know their Christian names. I would not have imputations upon persons of the same name. You may say, Dr. Grey to be impeached, who spread such a Declaration; and then to-morrow, when you please, send up an Impeachment to the lords; you may pass such a Vote and describe them.

Sir Wm. Williams. A person that draws his sword against the king, by description of the person, is committed. It may fall out that you cannot know his name; therefore you may commit him by description.

Serjeant Maynard. I am against Impeachment of these persons, that they may be punished. These Papers are high treason; an Impeachment may walk long, before it comes to issue. Prosecute them by way of indictment, and then you may punish them severely and legally. Let the Judges lay it as a charge upon the Attorney and Solicitor-General, that they effectually prosecute them at commonlaw.

Mr. Garroway. You see many people abroad in the nation, who refuse to own the government. We cannot give too much assistance to support it. I desire this prosecution may be by Impeachment, and not by indictment, that the world may see you stand by your government.

Sir Tho. Clarges. I was of opinion, that impeachment was the best way for your justice. I am altered since, from what I have heard, viz. That you should bear your testimony of it.' If you send to the lords, to order the Attorney-General to prosecute, you may have speedy justice, the term now in being, three or four days in term time; indictments. may be found by the grand jury, and you may have speedy trial, and speedy execution. I am afraid that these things have gone all over the nation, and I would have prosecution at the assizes all over the nation. Whereas the danger is great, so the resentments should be quick, and the like prosecution all England

over.

Sir Rob. Howard. If any thing be done against the government, I would bring in the old manner of Impeachments; nothing will settle your government better.

Sir Henry Capel. This is a point of safety, and that has led the house into this of ImVOL, V.

England, it gives a dignity and honour to the king. If impeached by the commons, it is not tied to this or that county; 'tis left indefinite and not confined to the formalities of other

courts.

Sir Tho. Littleton. The greatest consideration of all with me is, Whether the house of commons dare take notice of this? and men may take farther encouragement, and say, 'it seems the house of commons dare not meddle, but put it to the inferior courts; therefore I am for Impeachment.

Serj. Maynard. I have as much zeal for the punishment of these men as any man here, and am grieved at the slowness of proceedings; but when you may do it by law→ This act was done in London, in a tavern in London-It may be, he cannot be tried in eight or ten days; but here is a clear offence: when you have brought it up to the lords, the men are in their judgment, not yours. One man tried and condemned at common law, will work more upon the people than ten Impeachments. If once you make that an example, not to try without the lords, I do not know the consequence. I come here with grief of heart, to be here five months, and do nothing at all of this nature. Therefore I would not go before the lords, when the law is clear, and may be tried by juries.

Mr. Hawles. The question is, Whether you will go by impeachment, or indictment? I am for impeachment. I do not think this to be a plain case of treason, by 25 Edw. 3. I do say, no court can judge this offence to be treason; and that statute did plainly not bind the superior court of parliament, but the inferior only. Look but over the statute of 25 Edw. 3, and you will not find any words to reach this Declaration, &c. to be treason. The proper way is, to judge this high treason; and therefore I am for proceeding by Impeachment.

Resolved, "That the persons who dispersed the Declaration, viz. Dr. Elliot, capt. Vaughan, sir Adam Blair, capt. Mole, Dr. Grey, &c. be impeached of High-Treason."

Mr. Howe. Several are now in town who stand charged upon former Impeachments. I think it fit that the house give their opinion, That all such persons withdraw themselves from Court.' Out of my duty to my country, I shall name them, if you please, that they may be secured.

Col. Mildmay. For what they have done X

formerly, lest they should attempt the same again, and it be too late to remedy it, I desire you would remove them from the king and his councils.

Mr. Hawles. It was the opinion of lord chief justice Hale, That if the government must be subverted, it must come from Westminster-Hall.'-Fitzharris's Case and lord Russel's Upon the business of the Charters, some went out, and others came in; but only when it came to the Dispensing Power, they could not swallow that. Whilst there are lawyers, they will be tools to do as they are bidden. The Trial of Fitzharris was one of the wickedest things, and that about lord Russel's Jury you know, and the giving new Charters to have voted a parliament after their mind. You have been well moved to know who were the privy-council at that time.

Sir Wm. Williams. It is not the cards, nor the dice, they are but the tools; it is the hand that cheats you. I have gone post often, and have found a good horse under me, but he would go no farther than his stage. You ought to go to the fountain, the great Council, in the Declaration, and they will betray one another: we must go to the visible Council; the committee of Trade, the Cabinet-Council. The first thing done was the Trial of Fitzharris, but they would not destroy the City-Charter then; the post-horse failed them-He did afterwards destroy the Charter, and break that, but was not so profligate as to break all the laws. Charge them, and they will accuse one another.

Mr. Garroway. I think, we are not going the right way. When the Judges shall be here, ask them any question you think fit. I have seen lord chief justice Keeling sent for hither, about calling Magna Charta,' Magna Farta.' They will tell you who did it.

·

The Speaker. Such as have been Judges you may send for by warrant ? but to such as are attendants on the lords you send only an intimation, lest exceptions should be taken by the lords.

Mr. Hampden, jun. These Judges laid it down for doctrine, That there was no Treason but against the person of the king; the king therefore might pardon him.' But there is a treason against the realm, which the king cannot pardon; the king cannot be without a realm. You have it in parliament declared, That an Impeachment continues from parliament to parliament' will you suffer the Popish Lords to go about under your impeachment, and not be prosecuted? I move, that you will appoint a Committee, to enquire by whose authority those lords were delivered out of the Tower, illegally; and send to the lords to commit thein.

Sir Christ. Musgrave. The question is, for sending for the Judges. Garroway has put you in the way. For method's sake, divide the question; one by way of Order to appear, and the other by way of Desire to appear.

Mr. Garroway. One formerly informed

against one of your members (sir Rd. Temple) for being an undertaker to carry on a business with lord Bristol. The house sent to lord Bristol, by Mr. Vaughan, to know whether his lordship said any such words to the king. Lord Bristol prayed, that he might come into the house to give an account of it, because he might speak his own words.' He came, and gave others little satisfaction abroad, and us as little here; and I do not doubt but the Judges will give you the same satisfaction.

Mr. Leveson Gower names Mr. Justice Dolben, Mr. Justice Gregory, Mr. Baron Neville, and Mr. Justice Powell, to be sent for to come to the house.

Sir Wm. Williams, names sir Francis Pemberton, sir Creswell Levens, sir Thomas Jones, Mr. Serjeant Montagu, sir Francis Wythens, also, sir Rd. Holloway, to know who gave the Instructions to the Judges, &c.

Mr. Howe. I know not how to take notice of the Cabinet-Council, nor what it means; I know not whether it be a lawful council; I know not whether it be a crime to be a cabinet-counsellor: but I would desire the king to deliver us from those that were Counsellors then, that we may be troubled with them no more.

The above Judges, and others, were then ordered, or desired, to attend the house tomorrow.

The Judges examined touching the Dispensing Power, &c.] June 14. The Judges, &c. as above-mentioned attended, according to order. Lord Chief Baron Atkins, Mr. Justice Dolben, Mr. Baron Neville, Mr. Justice Powell, and Mr. Justice Gregory, were severally called in.

The Speaker. My Lord Chief Baron, the occasion of the intimation the house gave you of their desire, &c. is to be informed of some things. They would know, why, in Ch. 2's time, you were turned out of your Judge's place?

"I suppose There was a great

Lord Chief Baron Atkins. there were several reasons. Cause depending betwixt sir Samuel Barnardiston and Mr. Soames. The cause was of great expectation and consequence in the King'sbench. Judgment was given for the plaintiff, Barnardiston. After that, Soames brought a writ of error. Eight Judges argued, (there was a great appearance) and Ellis and myself argued to affirm the Judgment; others, to reverse it; which, I suppose, was not acceptable to some great persons then. There were other things objected against us. In the circuit, I declared against Pensions to parliamentmen, and there was great complaint against me. I went the Oxford circuit with Scroggs, where Scroggs called Bedlowa perjured person. I told him, he had passed Judgment upon his Evidence. There was a Petition from my lord mayor, &c. for the sitting of Parliament. I was willing to avoid all occasion of discoursing with Scroggs. He said,

See vol. iv. p. 269.

'That Petition was high-treason.' At last, 1| affirmed, That the people might petition the king; so that it was done without tumult, it was lawful;' and of this he sent word to the court. But what filled up the measure was about the king's Power, Whether he might not prevent printing and publishing, &c. by Proclamation.' I said, 'It was most proper for a parliament-If the king would do the work of a parliament, we were like to be without a parliament.' I said, 'In case the people do represent things by false news, they may be met with, and punished.' I advised against the opinion. There was another lay heavy upon me (lord chief justice North) and it was about selling Offices. I found they were discontented at me, and I impute it to the two Chief Justices."-He then withdrew,

Mr. Garroway. I would not travel now into the business of Pensions; that may be hereafter; but I would principally drive at the discovery of those who advised the Dispensing Power. This, he has told you, was as to other

cases.

Mr. Howe. All these Pensions were for the advantage and interest of France; if they had not been supported by France, they could never have brought us to this. It was the beginning of our woes; and now especially, when we have a war with France, I would have those who corresponded with France excepted.

Sir John Lowther. Such a question is irregular; the Dispensing with the laws' is the proper question.

Mr. Hawles. We are not tied up to one head, to enquire of a Witness. The lord chief baron can give you no account of the Dispensing Power; he was turned out long before that came in question. It is proper to ask him any Question before you.

He was called in again.

The Speaker. The matter of the Petitions was objected against your lordship. The house would know who said it to you?

Lord Chief Baron Atkins. "I did drop that word to give you occasion for your question. Lord Clifford took occasion to tell me what favour the king had conferred upon me; that I had attended diligently in parliament, and was taken from my profession, therefore the king bad thought fit to send me 500/.' I replied, I thank you; I will not accept any thing for my attendance in parliament.' Sir Stephen Fox asked me, why I would not send for my money? I have a good sum lies by me for you.' I did take occasion upon this, to advise my countrymen, that those who took Pensions were not fit to be sent up to parliament again;' and I never went farther in it than I have told του.”

Mr. For. I find a reflection upon sir

Son of sir Stephen Fox, and Paymaster General of the forces in the reigns of king Charles, king James, and queen Anne. In the reign of king William he was Vice-Treasurer, and Receiver General, and Paymaster of the

Stephen Fox. I would know what time this was?

Mr. Smith. I think there is no reflection upon sir Stephen. I remember there were members sent for sir Stephen Fox's Books, to know who had Pensions † He was so ingenuous as to tell you upon his memory who they were, and there is no need to send for him.

The Speaker. Mr. Justice Dolben, the house has sent for you to enquire why you was discharged so suddenly from your place in the King's-bench.

Mr. Justice Dolben. "It is now seven years since, and I cannot certainly tell; but I think it was for giving my Judgment for the king in the Quo Warranto, brought against the City of London. Several came to me, I know not from whom sent, or whether they came out of curiosity, to discourse with me, as I thought, about the Quo Warranto, &c. I must confess, one came to me (he was my friend) I think he said, Mr. Secretary Jenkinson was the occasion of his coming; he asked my opinion about it. He found me at my house at Hampstead, my Papers were before me considering the case. He told me, it was far from him to persuade me, but, whatever comes of it, to follow my conscience. If you are for the king, you must stay in. If not, you must be turned out.' I gave my opinion, and was discharged the next day. The docket was sealed on Friday, and I was discharged the Tuesday after."

Sir Wm. Williams. It is a common thing, not to come to a man to corrupt him plainly, but to bid him use a conscience. I am not afraid of the dead, but of the living; I am afraid of those alive. When that man is named, I shall know how near the king he was and what office and place he bore in the ministry.

Mr. Garroway. I would not have you go farther than what he declared to you, but you see plainly a practice upon them that would not do their business.

Sir Robert Howard. I am against asking him any more questions. I see we shall find none but dead men. I wish they would tell us no more stories of the dead: I see they must bear all.

The Speaker. Mr. Baron Neville, the house would know how you were placed in the Exchequer, and how you came to be discharged?

Mr. Baron Neville. "I shall acquaint you with what I think was the reason, I was sent for by king James to Whitehall the last Michaelmas term. I attended at Mr. Chiffins's chambers. After I stayed awhile, king James came to me for my Opinion in some points, in a Paper he had in his hand; it was about the Dispensing Power of the penal laws. I said, I doubted, his majesty could not dispense with those laws; but I could not give my opi

Revenue in Ireland, and was likewise Treasurer to Catherine Queen Dowager. He died in 1713, See vol. iv. p. 1111,

nion suddenly; upon reading the paper, I would consider farther.' A little while after, chancellor Jeffreys was sent by the king to know my opinion. I said, 'I gave the king my sudden thoughts, but I would farther consider of it.' A week after, when I had considered more of it, I waited again, &c. and gave my positive Opinion, that the king could not dispense, &c.' I sat quiet after this, for some time; and before the circuit I was sent for to the same place; where was Mr. Justice Streete. He was the senior Judge; he gave his opinion, and I nine. The chancellor made a long discourse, and disapproved our reasons, as the king had done. So I was dismissed, and my commission not sealed till two days before the circuit. I took my leave of the king, and had my direction after the usual manner. I went with Mr. Justice Holloway, where were the king, the chancellor, lords Sunderland, Rochester, and Godolphin. The king asked Opitions: Holloway gave the same opinion with me. The chancellor disapproved the opinion -I was dismissed again. Monday before the term, I was sent for to the chancellor's house, who told me, If I persisted in my opinion, I must expect to be discharged.' I said, I, must persist, for I had no reason to alter it, and would submit to the king's pleasure.' About seven or eight days after, I had my Quietus; and was told, that Mr. Harris brought it."

Mr. Smith. You have had a fair account from this gentleman. I would have one question asked him, Whether any body else was with the king the first time?'

Mr. Howe. I desire you would ask him, Who more were there the first time, and whether they concerned themselves in this matter?'

Mr. Foley. I desire that he and all the others may be asked, Whether the king did not ask him, whether he might grant out commissions of martial law, or raise money without parliament ?'

The Speaker. Was any other question asked you than that of the Dispensing Power? Mr. Baron Neville. "There were more questions asked, but all tending to the TestAct. There was no signing at all of a Paper proffered me to sign, and I know not who drew it. I read it, and returned it. The first time I came, there was no body but the king himself. The second time there was the chancellor, &c. (as before.) If the lords then present said any thing, they discoursed with one another. The chancellor managed the whole thing."

The Speaker then addressed himself to Mr. Justice Powell, as before.

Mr. Justice Powell. "I was turned out suddenly. I know not perfectly, the reason, but I suppose it was about my Opinion of the Dispensing Power. Another, I suppose, was upon giving my Judgment about several Quo Warranto's, where the borough chose members of parliament by prescription; but I know not certainly. I remember not any person

that discoursed with me. I was sent for to the king, (as before) I asked the messenger, who else was sent for? He told me several others of the King's-bench.' The king said, 'he hoped all the Judges would be of the same opinion.' (A Quo Warranto was brought especially against Marlborough.) I happened to be of a contrary opinion, and that I take to be the occasion of sending for me. There was lord chief justice Wright, Alibone, Holloway, and myself there. My opinion at the King'sbench was not pleasant. And, I guess, these were the reasons why I was removed. I cannot recollect any time I was sent to before. There were present chancellor Jeffreys, the Attorney-General Powis, the Solicitor-General Williams, and sir Samuel Astrey. I think no lord was present but Jeffreys. The late king spoke to induce the Opinion. The Chancellor enlarged upon it, and after he had commented upon it, some ordinary matters were discoursed. I remember nothing relating to the law. A quarter of a year before, I was sent for by the chancellor to take my Opinion, whether a borough, for a misdemeanor, did not forfeit their right of election of parliament-men? And whether such as had no residence in the borough, and were foreign burgesses, had right of election? The Chancellor would know the Judges Opinion. I delivered my opinion,

That there was no such power in Westminsterhall to question any such thing. I thought that power was only in the honourable house of commons.' At which the king seemed satisfied. When I came home, I searched my books, and some authorities. Justice Lutwich was abroad then, but did seem to be of the same opinion,That it was not proper for Westminster-hall.' I conceived that the misdemeanors of corporations, &c. were pardoned by the Act of Indemnity. I cannot call to mind that I had discourse with any man, but the late chief justice, who asked me, what my Opinion was? I answered, When the matter came before me, I should give it on the bench.' The first news I heard of my discharge was from my lord chancellor, who (at his house) very kindly told me, he was sorry for it, but would not send my patent of revocation till the last day of the term.' And I sat out the whole term.'

Mr. Justice Gregory. "I did continue baron of the exchequer till Michaelmas term, 1685. The king came with a Paper in his hand (as before,) &c. I gave my Opinion against the Dispensing Power."

Sir Thomas Jones. "I was removed for my Opinion of the Dispensing Power, &c."

Sir Francis Pemberton. "I was removed out of my place, without visible reason, the first time; neither do I know the reason of my being removed from the King's-bench to the Common Pleas. I was never sent for to Whitehall, nor to my lord chancellor's. I was willing to remove. The night before, my lord said nothing to me, but the next morning I had a Supersedeas."