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blood-In an universal Act of Oblivion, we confess, that we were the offenders, and needed it. This new doctrine, of having these offenders to Westminster-Hall, is as much as to say, they shall not be punished. These offences cannot be punished unless the parliament punish them. It was the custom of our ancestors to bind the Judges to the letter of the law, and to declare nothing treason, but what is specified, &c. and in a doubt to go to parliament. Our ancestors thought, by that statute, that there were treasons which could not be specified; therefore left it to Parliament to do it. When the ten Judges, and the king's Counsel, answered the questions at Nottingham Castle, proposed them by Rd. 2. had they done any offences against the statute 25 Edw. 3? Nine of them said, they were under fear of their lives-But in the midst of that mercy, they were banished, and a law made that fear must never be the case. I move that these men may be reserved to such penalties as shall be declared in parliament. I am so tender of blood, that I have said nothing to-day to wish any body's finger to be cut; but we are like to be in blood to defend what is begun, it may be with a sea of blood; therefore, those that have been the occasion of all this blood I would have such justice upon, as may procure our safety hereafter.

Sir Tho. Littleton. I am as much against a general Act of Indemnity, as against excepting all. Suppose you declare them in as hard words as you please-but I would do it to reconcile the nation. Make them support the government by setting all mankind at ease, (some must be excepted) and that will do your business.

Sir John Lowther. I am not for a separate question, but for complicating altogether. If you divide the incapacity, there is a legal incapacity that will involve a great many. I am for setting all at ease but Papists.

Mr. Howe. As for excepting all in a lump, I am against it. Many are fit for fines that are not fit to die, nor fit to bear offices.

Resolved, 1. "That no person shall be excepted out of the Bill of Indemnity, as for life, upon this head. 2. That some persons shall be excepted, &c. as to other pains and penalties, not extending to life."

June 17. The debate was resumed. Mr. Garroway. You say in your Vote, 'some persons shall be excepted.' If nobody else will name a person, I will name one who sat in Magdalen College Commission. It is Jenner.

Mr. Brewer. He was not one of the Judges of the King's-bench, and I see not how he can be under this Head of the Dispensing Power.' He was a baron of the exchequer.

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Mr. Hawles. Perhaps he gave his Opinion for it, and I believe it, but it appears not to us; though possibly he may be on some other Head. I have examined, and I know of none, and can find none. There were some fines set, and you enquired of sir Samuel Astrey,

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and he informed you, that a grand jury was discharged-And you have not then any evidence. Whoever made that patent is as much criminal as any body, whether the Attorney or Solicitor General.

Sir Henry Capel. Two things you are to know. One, who gave the Opinion in the Dispensing Power, in sir Edw. Hales's Case. You were well moved to have the patent produced, and then it may appear whether Jenner was one of them.

Sir John Guise. It may happen, they may tell you upon what ground those Patents of Dispensation were drawn.

Sir Wm. Williams. No Judge is to give his Opinion extrajudicially. There is no such patent in nature; but there is a commission with Non obstante, and there were several commissions granted out with Non obstantes.

Sir John Guise. There was, I mean, a Patent of Dispensation for sir Ed. Hales, under the Attorney's or Solicitor's hands; they went upon their own heads, and drew it; and it was pleaded in his case.

The Speaker. I saw a patent of Dispensation for most of the principal Papists about

town.

Mr. Hawles. The docket of the patent will discover from whence it came.

Sir Robert Sawyer. There was such a patent, and it passed my hand, and I will give a true account of it. The first warrant came to me the 21st of Nov. that did include both the Pardon and the Dispensation for the future. I said, I could not pass it.' I told Mr. Burton, that the Dispensation would spoil the pardon.' I will show you the whole: I have almost worn out the papers in my pocket. After I had told him my Judgment, he brought me a warrant for a Pardon of what belonged to the king. On Dec. 31st, they brought this patent in question. I told them then, I could not pass it;' and I told the king,' that in point of law, the power was not in the king. The king referred me to my lord chancellor and lord Sunderland; they told me, I was but a ministerial officer, and might do it.' I did not conceive the king had that power, and I could not do it. The king desired my reasons under my hand. I consulted an honourable person, Mr. Finch, and then gave it under my hand. The king said,' He had a respect for me; but will you agree to it, if it be the Opinion of the rest of the Judges?' I said, ' I was but a ministerial officer; but if it was the Opinion of the Judges, I must obey.' I heard nothing farther till three weeks after; when the king sent for me again; where were present the Chancellor and Chief Justice. The king said,

I am advised by the Judges that I have that power;' and then it was brought, and I, as a ministerial officer, did pass it. Soon after, six of the Judges were turned out. Then they brought Walker's patent. I had the greatest veneration for the Judges not concurring. If they come to be of that opinion for fear or expectation of preferment, the nation can never

be safe. I begged, on my knees, that the king would put me out of my place. I desired to know, why I was not turned out? I was told, 'because the king would not gratify another to come in my place.' Then I was brought the duke of Berwick's patent of lieutenant and Custos of the forest. I told them, I would not pass it with a Non obstante.' I was sent to by the Chancellor that the king would remove me.' Nobody then about the king, but knows I stood stiff upon it. I was Attorney in all these transactions, and you will find my integrity the greater, that I could hold it in those times. I knew, all things were set up to introduce Popery. I gave my opinion, that the Lease of the Excise, on the death of king Ch. 2, was a void lease,' though there was an overbalance of Judgment that the lease was good. There was another project of Brent's to set a new valuation of First-Fruits; they were then undermining the whole clergy of England. The commissioners of the treasury were glad there was an obstacle put to it. I will show you all my papers that I have to justify me. I never had a Pardon, nor ever desired it.

Mr. Hawles. Upon what has been opened by Sawyer, I think him the greatest criminal upon this head. This gentleman was not satisfied that this patent was legal; why did he give it out then? I am sorry to say, that a certain learned member had a hand in passing these patents, (there were many patents passed to persons that did incur the 500l. penalty) and was earnest for the 5007. men.

Sir Robert Sawyer. Mine was but a private Opinion, not a judicial opinion. The Judges are the king's counsel, and they are advised with; but the great hurt is when Judges are corrupted in opinion. I submit whether any officer must not do as I did.

Mr. Howe. Sawyer has endeavoured to vindicate himself. I am not a judge of the law, but when he comes to vindicate himself, then is the time to speak to that. That horse which carries the first stage, and that which carries the last, are all post-horses alike. It may be, some would be content to be hanged to leave 1000l. a year to their families. I hope these Judges and others, &c. may be reduced to their former estates that they had, before these crimes were committed. They would be willing to sit down with 2 or 300l. a year, and laugh at us. I would move something, to know the names of the persons you would enquire into for acting and promoting this. I will give my opinion as freely as any body, to provide for the future against the infamy of such persons to be in office, who have very lately been in arins against us.

Mr. Hawles The way to know is from the officers of the court in the Case of Goudwyn and Hales. Let us not give occasion to think we do injustice, but inform ourselves.

Mr. Boscawen. I would know what oaths the Judges and great officers of the law take. If their oaths, and the fear of breaking them,

will not keep them to their duty, you may proceed farther.

Sir Tho. Lee. If I thought you would not proceed without proof, then there must be a committee to enquire. I suppose, when you come to apply punishments, you will hear every mau what he has to say in his own defence. One tells you, he knows not who was there;' another, he knows not how Opinions were given.' It is apparent that the Judges gave no Opinions; but their practice gave the example, and it was an opinion that put on the Chimney-money upon the paupers, which Sawyer gave. Archer and others, who had their patents Quamdiu,' &c. though they retained the ordinary fees of court, yet not their salary of 1000l. per ann. If the matter be apparent, then you may proceed, and not lose time.

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Col. Austen. If the justice of the house can go no farther, it is in vain to proceed. If you will not come to a justification of what you have done, let us go home.

Sir Wm. Strickland. Those who were the great darlings of king James, not to turn them out! Those are the persons to be excepted. I mean Sawyer.

Mr. Harbord. What is the reason for taking away chimney-money ? Was it not, because it was barbarously collected against law? The king's counsel gave their opinion, to shelter the privy counsellors, that ovens and cottages should all pay. These have grown up by the advice of Sawyer; and if you fall not upon them that did this, you are defective in justice. I would always have it a maxim here,

that to levy money against law is treason.' If privately, cunningly, and traiterously they give an opinion in law, those you must lay hands on. I am tender of blood, and cannot give my consent where no blood has been shed. The blood I mean is that of sir Thomas Armstrong, a most barbarous thing! And all foreign nations where I have been cry out upon you, and say, there is no living amongst you. I would except them even for their lives.

Sir Robt. Howard. This is not your business now, but what you will do on the Judgment given in Hales's case. Sawyer has told you, why he did do it, and has papers in his pocket. He tells you,

He had the opinion of the Judges, but the king and my lord chancellor told him so. All must be seen before you, and perhaps you may make these things clear; and let sir S. Astrey and Henley bring you the Judges names. But this now looks a little short, that Sawyer did this upon bearsay; but I would not condemn him upon hearsay; send for Astrey and Henley, and adjourn it to to

morrow.

Sir Wm. Williams. It is true that this extrajudicial Opinion was given, but how shall the house be satisfied? I was present in court when Judgment was pronounced. It was by lord chief justice Herbert. He had consulted all the Judges, and there was but one dissenter: on that Opinion, judgment was given. But that they should be quiet under that law,

and not be contradicted, is strange to me, who gave and persisted in this Opinion. But whether you will refer it to a committee, or send for the officers, I submit.

Sir Robert Sawyer. I will bring my papers to-morrow, and you may have all the matter before you.

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effectual order, that the Act for confining Pa pists within 5 miles of their own houses, and the law lately made for disarming Papists and reputed Papists, and for taking away their horses, may be forthwith executed; and, in order thereunto, that the Judges may be directed to give these Acts in charge to the justices of the peace in their several circuits; and particularly that they examine whether any Protestants have, contrary to that Act, owned such horses as in truth belong to Papists.We humbly lay these things before your majesty, as conceiving them to be of great importance to the safety of your majesty's person and government and dominions."

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Sir John Lowther. I think it not possible to come to a Resolution of this question, till you have the state of this Head before you. The words of the Head are, advising and acting in pursuance of the Dispensing Power, &c.' So you must make no distinctions; they are all equal crimes, and when you come to the Case of Hales, you will not think that so great as the lord-lieutenant's, who came down to urge persons to declare for the taking away the penal laws, and the Test, and to act without it. This is levying war openly. The Judges, who have given their opinion in WestminsterHall, I cannot think more criminal than those that contrived it. I presume, the wisdom of the house will weigh the advising and asserting' it. I presume, you will find acting' one ¦ of the least crimes. Consider the quality and greatness of these men; you will not lay the load upon some men only, and let those equally concerned escape.

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Mr. Garroway. I rise up to second the motion, That serjeant Streete and justice Powell may be here to-morrow.'

Mr. Ettrick. When you sent for the Judges last, you sent some of your members to attend them. Powell is a sitting Judge in the lords house, and I think it fit you do it to him.

Resolved, 'That Mr. Justice Powell, sir Tho. Streete, and the Prothonotary, Secondary, and Remembrancer, be sent for."

Address to the King to secure the Garrisons, &c.] June 18. The following Address from the Lords to the King was sent down to the Commons for their concurrence:

"We your majesty's most loyal and dutiful subjects, the lords spiritual and temporal, and commons, assembled in parliament, having taken into our consideration the great importance the Isles of Wight, Guernsey, and Jersey are to your majesty's dominions, and the great danger to which they are exposed during this war with France, do, in most humble manner, represent to your majesty, That we are informed, that that Isle of Wight may be put into a good posture of defence in a small time and with a small charge: and we do humbly desire your majesty would be pleased to send, with all expedition, a supply of troops, provi- | sions and stores, to all these places, and particularly to order some men of war to Guernsey and Jersey, that may constantly attend there for the better defence of these Islands; and likewise to give such further orders for the security of the Isles of Man, Scilly, Anglesey, and of the Cinque Ports, Milford, Pendennis, and Falmouth, and all other places that lye opposite to France and Ireland, as your majesty in your princely wisdom shall think fit.And we further desire your majesty to give

Debate thereon.] Mr. Garroway. This Address is as if the king were in Holland, and Stadtholder, to teach him his duty, and not king of England. I am against it.

Sir Joseph Tredenham. If this Address be publishing our weak condition, I am against it. It is certain, these places are in no good condition, and since it is not mended, it is our duty to represent it to the king, and we cannot else do right to our country; especially this coming from the lords, makes me for it.

Sir Henry Goodrick. Guernsey is in ill condition, though the best harbour in the world. It lies opposite to France. There are no guns, nor ammunition. The consequence of the place is great. As for the Isle of Wight, it is a place of infinite consequence, and so illfortified, that the governor, sir Robert Holmes, at his own charge, has done something. Yarmouth and the Castles are much out of order.

I hope it may for the present be done without much charge. I would concur with the lords.

Sir Tho. Lee. I find we are now upon the debate of Address to the king about the Isle of Wight, &c. and therefore it is not fit to pass at the table in a moment. I could have wished the king had sent to you before, or you to him. I hear of garrisons making, and we may draw more garrisons upon ourselves, and at another time it might be suspected. For Jersey you may do something, and I am sorry to hear from Goodrick, that Guernsey cannot be kept.' The lords, I believe, have had informations before them, and I would have you do so too, and consider as they have done.

Sir Christ. Musgrave. I take this Address to be of great weight. This has been examined by a committee of lords, and it is not usual for us to take things upon trust. Inform yourselves, as the lords have done, and then, upon committing it, you may take the same steps, that the lords have done, and then you are ripe for judgment.

Sir Hen. Goodrick. The Flect is now drawing towards Brest. I see no manner of summer guards, and we have nothing to send men into these islands. I suppose they may land men out of France with flat-bottomed boats; have we any frigates to hinder a descent from France? Unless we send out some ships presently, we may run an irreparable hazard,

This is the purport of the Address from the lords, and I hope it may be effectual.

Mr. Harbord. I am willing to commit this Address. The lords have bad this before them three or four days, and I would go the most decent way to the king: I would examine the thing and the charge of it; it will cost the king money; therefore, upon the whole matter, I would commit it.

and Irish too. I would have particular instructions to the committee to enquire into the Navy.

Col. Birch. This address comes in a most unusual way, but when any thing is before you, I would know the bottom of it. I would have the Committee examine what is done, and what is not done. One part of the Address relates to shipping; our safety is, in the first place, to be looked for. I desire, a paper may be laid before us of the number of ships in the whole kingdom, how many fit, and not fit, and where they lie. Some talk of 30, 40, and 50—('tis none of my trade) I would know what you have for reserves, with the several particulars of guns and burdens.

Sir John Thompson. It seems, the king has not been put in mind of this by his counsellors, and therefore we must do it; but I will not see it with other men's eyes, when I can see with my own. I question whether this Address will not bring on the consideration of Money; and since this is for our defence, I would have the committee take some care of the Navy, and see what present state the navy|mittee enquire into the captains of the navy. is in.

Sir Tho. Clarges. This motion of Garroway's, of computing the Charge, is letting the lords in to raising Money. I do not know but the Commissioners of the Admiralty and Ordnance have done their duty; but this is too great a presumption that they have not. We have given two millions already, besides the Revenue. I would have the Commissioners of the Admiralty and Ordnance give you an account of their proceedings.

Sir Henry Goodrick. The Office of Ordnance has not wanted application to the Treasury for Money, which it wants. The duke of Schomberg has made application. Nor has Wharton, the engineer, been wanting; he has viewed all these places, and has orders to make them in as good defence as possible.

Sir Thomas Lee. You may enquire as much as you please into these things; but I think Clarges has minded you well of letting the lords in to giving money, though I know not how he can make out "two Millions" given. I think it for your service to, enquire if it will cost you money by an Aid, and you may see if the revenue can pay it, and not do it without that, lest you let the lords into giving money.

Mr. Howe. To address the king to do what he has done already is a reflection. As for the islands, I hope they may be speedily done; and for Londonderry, I would see what forwardness we are in for Ireland, and would know how many Dutch ships are to join us; and if, upon enquiry, you find the Dutch ships out, and Ireland in good condition, there will be no occasion for this address.

Mr. Boscawen. An engineer was sent to Jersey, and Guernsey, and Scilly, to compute the charge. I desire you to take notice, that, before you make this address, you should inform yourselves what care has been taken. I have this morning spoken to duke Schomberg

about it.

Mr. Ellwell. Are we only to fight and have no trade? To be neglected, and no convoys for merchants? They make fortifications in France, and shall we have no fear of invasion? There is no Militia, and Pendennis-Castle is in ill condition, aud lies open to the French

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Serjeant Maynard. I would have the Com

I hear there are young men put into ships, that never were at sea before. The question was formerly, Was he a godly man? And he was put in. I asked then, Whether a godly man could make a watch, or a pair of boots ?

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Sir Tho. Lee. If being of a party makes men fit, I have heard that young men are fittest to fight. Those that know and have fought, are thought the fittest to judge. Lord Torrington is fitter to recommend a captain than I am, that live in Buckinghamshire. The charge is computed at 100,000l. a month, the Estimate, and when I have said that, it will not bear the Charge of this summer's expedition, (and gives an account of the Shipping) but do what you can, there will be leakages. As many ships as are appointed, are nearly ready to a ship. The king has ordered 20 to cruise betwixt Scotland and Ireland. Those who are experienced were thought best to recommend officers; and to my observation, those who were never in the king's service are not so forward with their ships as those who were in the king's service before.

Col. Tipping. I was lately at Portsmouth, where I saw one of the greatest ships given in upon account fitted, and weeds grew on her sides, three times as long as the table; which, lord Torrington said, must have been, at least, three years laid up.

The Address was ordered to be committed.

Mr. Justice Powell and others examined touching the Dispensing Power.] This day Mr. Justice Powell attended, according to order, and being called in,

The Speaker said, The house has sent for you to desire you to inform them, whether the Judges were sent to, to meet together in sir Edward Hales's Case ?

Mr. Justice Powell. "The Judges were sent to, to meet my lord chancellor at Serjeant's Inn, in Fleet-street; all the twelve Judges were present, and there it was proposed, Whether the king could dispense, &c. in sir Edw. Hales's Case? I beg the favour to be excused from making answer as to persons. It is im

* Admiral Herbert, so created a little before this debate.

proper for me to accuse any. I humbly beg | Case. He cited some Cases to make out the the favour that I may be exempted." And withdrew.

king's Dispensing Power. He cited Coke's 12th Report. After he had done, it was my turn, as puisne judge, to speak. I answered, the Case was of great importance, and, for the present, I was not able to do it, till I had con

Col. Birch. It seems, he is tender in revealing what passed, on private considerations; but what was done upon that occasion was on a public account. I conceive it not the insulted Books against Michaelmas Term.' He tention of the house that this gentleman give evidence; but I think it necessary that you know what Opinion was given, because you were told that 11 Judges were of that opinion. Mr. Leveson Gower. I am of opinion, that no imputation can lie upon him to tell you the opinion they gave; but I would not ask him what opinion he was of; but how many signed their Opinion at that time.

Sir Tho. Littleton. If you go through with this question, he may live uneasy in his Judge's place. I doubt not, Powell gave his Opinion for it, and Streete was the only man against it. I think he has given a very particular account to the lords, and it is fit he should do it to you likewise.

Mr. Garroway. I wonder what you sent to this Judge for. Now he comes, he makes you a great compliment, whether you will ask him the question, or not? If the crime be such as that all is at stake upon it: ask him plainly, what Opinion these Judges gave, but not himself. I hear he has frankly and freely given an account in the Lords' house.

Sir Henry Capel. Was this Judge in any public court on oath, he ought to tell what he knows. For once, let us not part with our laws, without some struggle for it. I stand amazed that Powell is tender in it here. He is not to be excused for his modesty, though a good thing. When that compliment and excuse is over, for the good of the nation, he ought to give you a clear account. I hope, you will tell him that this house requires it of him to inform you, and I believe he will obey you.

The Speaker. Mr. Justice Powell, the house has considered your answer, and have commanded me to acquaint you, that for what concerns yourself they will not question you nor require an answer; but for what you please of the other Judges, there can be no tye of secrecy; you are under a duty to tell your knowledge. This is not properly an accusation of the Judges, but your testimony is required to deliver your knowledge.

Mr. Justice Powell, "I am very free to declare any thing relating to myself, but to others, unless you command me, I desire your excuse. 'Tis at a great distance, a great while since, but I shall declare what I remember. I am unwilling to incur the displeasure of this honourable house. Going on Wednesday or Thursday in Trinity Term [2 James 2.] to dine at Serjeants Inn in Chancery-lane, I was desired to attend at the other Serjeants Inn, in Fleetstreet, at four o'clock; where being met, my lord chief justice Herbert told us what the business was. He desired my Opinion, with the rest of the Judges, in sir Edward Hales's

said, he would have it on Tuesday.' I said, 'The time was short, but I would wait on him. Milton, who was then baron, gave his Opinion, That he might dispense.' The next was Lutwich, who said, He restrained it to this Case, and thought the king could dispense in this Case, but not in ecclesiastical cases. He restrained it to that Case before us not relating to Religion.' Jenner was next, who said, The king might dispense.' Wright was for dispensing. Holloway, I believe, was for dispensing; I cannot say it positively; I was at a distance. Streete was against it. Lord chief baron Atkins was at a greater distance; I could not well understand him; he cited several Cases. Lord chief justice Bedingfield's Opinion was, That the king could dispense.' This is all I can say in the matter transacted so long ago, Nothing was put in writing, nor notes taken of what was then spoken. As for what concerns myself, I attended my lord chief justice, at his chamber. I called on Mr. Justice Lutwich, who went with me, and there I heard first of the Judgment given on the Monday morning. 'Twas given on Monday, because there was a grand jury of persons of quality that day, and it was thought the next would not have had such an audience, and therefore they hasted giving Judgment that day; so I did not deliver my Opinion. I beg pardon, it was my forgetfulness not to name Wythens and Heath [Upon the Speaker's asking of them, &c.] They were with the majority for the Dispensing Power. I think no persons were present but the twelve Judges, and I am pretty confident of it. The question was delivered by word of mouth, by lord chief justice Herbert,

Whether the king could dispense with the statute of 25 Ch. 2. and the accepting a Commission by that Dispensation?""-He then withdrew.

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Sir Samuel Astrey, being interrogated by the Speaker, said, "Lord chief justice Herbert, Wright, and Holloway, were present at pronouncing the Judgment in the Case of sir E. Hales and Godwyn. The Opinion, in the Dispensing Power, was pronounced by lord chief justice Herbert, who said, It was not only the Opinion of the Judges in the Court, but he had consulted the rest of the Judges, and it was the Opinion of ten of them.' He said, 'There was another Judge did hesitate when they did meet.' I beg pardon if I mistake in words, but in substance he said Ten were for it.' Justice Streete was against it, and another Judge did hesitate, but that he was informed, by Holloway, that Justice Powell had declared his Opinion for it."-He withdrew.

Sir Robert Henley, being interrogated in like manner, said, " I was present in Court 2 James

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