this kingdom; and be proceeded against accordingly. S. That the humble Thanks of this house be given to his majesty, for his gracious communicating of divers Letters, and other Papers, which were intercepted coming from Ireland; and this day sent to, and read in this house."

Farther Debate on the Lords Amendments to the Bill of Rights and Succession.] Serjeant Wogan. I think the lord mayor and nobility in town should be joined with the lords of the council to tender the Declaration and Subscription. I think it not safe in the hands of the lords of the council of the last demised king only.

Mr. Foley. Here is a power in the Bill vested in the privy-council, to declare that the next heir shall inherit the crown. I would

commit it.

Mr. Howe. I think this Bill will not give satisfaction to the nation; it excludes all commoners from tendering this Declaration, if none but the lord mayor be admitted. If the last house of commons were to be summoned, it would content the people.

Sir Tho. Clarges. To have the last house of commons sent for would have great inconvenience in it. The custom is, upon demise of the king, that the nobility meet, and declare the Successor, as it was done in the case of queen Elizabeth. I think it very well, for such of the nobility as are at hand, and the lord mayor, to declare, &c. and then that commissioners be sent to the king.

Sir John Guise. I am not for the lord mayor to represent the commons of England. I think this king came to the crown as well and as rightfully as any of his predecessors, and he did send for all the lords and commons to consult them, and so you will approve what is done yourselves. If not absolutely necessary, I would not have commissioners sent to the king: I think the crown of England is worth coming hither for. I would not put the crown into the hands of a few.

Mr. Howe. I think it no great matter if the Clause were cast out, rather than to have commissioners to bring in what king they please.

Mr. Sacheverell. This is a matter of great importance; here are more things than one, and this Clause will not do. In the same clause they are kinged and unkinged again; and an intermission of Interregnum during the time of swearing. I think it fit for a committee.

Mr. Hampden, sen. I am for committing the clause, by reason I would make as few differences with the lords as I can. This Bill I take as a confirmation of what we have done, when the crown was presented to the king and queen. What would be the consequence, if the lords should not agree with you? (As I hear, the Bill for settling the Crown escaped narrowly, for a Clause in it was carried but by

* See vol. i. p. 631.

not agree.

Mr. Ettrick. You heard, the other day, that in Hales's Case, the Judges did agree, That the law was the king's law, and he might dispense with it;' and seeing you can find no qualifying clause in this, I see no other way but by Bill. In the mean time I would disagree with the lords.

The Speaker. You cannot now amend your own Bill, but you may qualify the lords Amendments.

Serj. Wogan.

In the 28th Hen. 8. the lord chief justice, &c. were excepted from the circuit in the place of their birth and residence; and it is hard, on the other hand, that the king cannot dispense in any case. Perhaps the sheriffs attend the king, or this house, so that if the king could not dispense with their resi dence, they would be in an ill case; if the Star Chamber were up, they might be fined. Sometimes a Jury may be headstrong, and find it murder in the person whom he killed defendendo; you will, by it, restrain the king from all mercy, and especially in the case of Mercy, it is against the nature of all government.

Sir W. Williams. I am for agreeing with the lords. If that stands for law, that the king can have no power to dispense in any case that can happen, then perhaps you will find that the subjects shall suffer more in this than in the Dispensing Power. Because Pardons have been abused in Impeachments, shall the crown have no power to pardon? "Tis as necessary for the people as cating and drinking. People will necessarily stand in need of Pardons. would not clog this Bill for Limitation of the Crown with this. It will be more natural in a Bill by itself. No man in the house, nor in the world, but will think this necessary in a Bill. It will have free agitation in this house, and before the lords. I would agree with the lords.

I

Sir Tho. Clarges. 'Tis now six weeks ago since this Proviso was tendered, and the gentleman told you it was necessary in five or six cases. It seemed, at the Committee, the king had that Power, and, in all debates, that that might have been done. For the king's Power of Pardoning there is no doubt; but I say, by the law the king has no Power of Dispensing. He

has none by statute law, that we know, nor by common law. In Non obstante s, they say, why may not the king dispense as well as the Pope? This is of vast consequence, and, I believe, the lords have advised with the Judges about it: but at a conference, we shall show, how convenient it is for the king to dispense in case of a misnomer for murder. The Judges are going the circuits, and the Attorney General may easily consider of it, to part with this Clause, so dismal to our liberties; and, I hope, you will agree with the lords.

Mr. Attorney Treby. I shall endeavour to rectify a mistake; you are told, the Bill was drawn by the king's counsel.' If you can show such an order, I will draw a Bill extempore. If the lords have made an order for the Judges to inspect the Bill, much more is it incumbent upon you. As for drawing the Impeachments, I can never do it till the committee will meet; and as for the king's Power of Dispensing, it is said, He can neither do it by common nor statute law;' for common law there is nothing above Henry 3. 'Tis said, though that be convenient, yet it was before-For statute law it is plain, that by many kings this Power has been executed, and without reproof of parliament; I believe it. Judge Hale gave Judgment of Dispensation in the Case of Thomas and Sorrel; but if enquiry be made, and you find it founded originally upon no solid bottom, nothing but a parliament can say, that is not a law convenient to be used. A stone ill placed in a wall at first may be mended, but you would not undermine the inheritance of persons. In Hanson's Case, a man was supposed to be murdered, and was not; therefore there was a reason why the king should pardon him; and it must be taken for law, because a continuance of practice. You say,The late king did use that Power of late, and dispensed in a case not dispensible;' not to John and Thomas, but all the people at once. 'Tis said, That, if we do not something in this, we acquit all the Judges of what they have done, and condemn ourselves.' There is not one word of retrospect in the Bill; but it says, 'From the first of June no Non obstante, but as formerly;' all the proceedings of the Judges are in the same state as before. When reading will satisfy, I need not speak; pray read the Clause.

Mr. Sacheverell. I hope Treby will justify me, that I attended the committee. As to this other, I would know how came the Clause of Non obstante, if the king could dispense without it? For the time past, I am glad to put up with a great many injuries done us, only to prevent for the future.

The Clause was ordered to be committed. Petition of John Bearecroft, Esq.] June 21. A Petition of John Bearecroft, esq. serjeant at arms to Charles 2, was read; setting forth, "That the petitioner, being always zealous for the Protestant interest, was made choice of by the late earl of Manchester, then lord chamberlain, and by the then secretary Morris, to arrest and take into his custody several Popish

Priests and Jesuits, who kept a mass-house and school in Holborn, and perverted many Protestants to the Popish religion: which the petitioner faithfully performed accordingly, took them from the very altar, and brought them prisoners to Whitehall; for which he hath, ever since, gone in danger of his life; and was forced to dispose of his place at Whitehall, and to abscond himself; and, having but one only son, did settle what he had on him, that thereby he might receive a competent maintenance from him during his life: but, the petitioner escaping the rage and fury of those times, his said only son was murdered in the street by one Narrative Smith, a Popish priest; and the petitioner thereupon immediately thrown into the King's-bench prison, to his utter ruin, and remained there prisoner till this most happy Revolution; not doubting then but to have found suffering men to have been rewarded: but, finding the contrary, and his petitions being rejected, for any place above-stairs in the king's household, by those that had the disposing of most there, that both knew the petitioner, and his former services and sufferings; and that they openly sold the places to those that would give most for them; and the petitioner wanting bread at this time; notwithstanding which he was forbid to trouble them any more and praying, that the house would be pleased to call before them Fleet Sheppard, Simon Smith, and Rich. Cooling, esqrs. that they may give an account of the many thousand guincas they have unjustly got from those now put in his majesty's service; and that the petitioner may be impowered to bring forth his witnesses to prove the same."

Resolved, "That the Petition be referred to the committee appointed to inquire into the abuses in the Selling of Offices, and to prepare a bill or bills to prevent the abuses in selling Offices for the future."

Debate on Irish Miscarriages.] June 22. Sir Edw. Seymour. I do not apprehend how 400 men can keep England safe, if those who manage Ireland play fast and loose with you. It is time to enquire after these Miscarriages, and to repair to the Council-Books, for your information and satisfaction. If you do not what has not been done before, you will be what you were before. I was not for the abdicating Vote, but I am for preserving the govern

ment.

Sir Christ. Musgrave. If you appoint some to inspect the Council-Books, unless they may have copies, I know not what use you will make of them. You must take the whole matter, and gentlemen will not undertake to say what is fit to report, and what not.

Mr. Howe. I second the motion. The hearts of the people are upon Ireland, and there is a fault somewhere. Some lay it on the house of commons, others somewhere else: for the satisfaction of all persons, I desire the Committee may have Copies of the Books of all the Orders, &c. and the transactions relating thereunto.-Which was ordered.

Case of Mr. Samuel Johnson] June 24. Mr. Christy reported, from the Committee, to whom it was referred, to examine how and by what authority Mr. Samuel Johnson came to be degraded, That the committee find the Case to be as followeth; viz.

"That in Trinity Term, 2 Jac. Reg. 2, an Information was exhibited against the said Samuel Johnson, in the King's-bench, in the name of sir Robert Sawyer, the king's attorney general, for making, printing, and publishing, a scandalous and seditious Libel, intituled, An humble' ****. That, the same term, they forced him to plead; procured a jury to find him guilty; convicted him; and gave the Judgment following, which was pronounced by sir Francis Withens; 1. To pay 500 marks to the king, and to lie in the prison of the King'sbench, till it was paid. 2. To stand in the pillory three days, in three several places; viz. the Palace-yard, Charing-cross, and the Old Exchange. 3. To be whipped by the common hangman from Newgate to Tyburn.-That the Judges of the King's-bench, who sat then in court, were the lord chief justice Herbert, sir Francis Withens, sir Robert Wright, and sir Richard Holloway. That the Sentence was to be executed in Nov. in the next Michaelmas Term; but they desired, that Mr. Johnson might be first degraded; for that it would be a scandal to the clergy, to have so infamous a punishment inflicted upon a minister.-Whereupon he, being a prisoner in the King's-bench, was summoned the 19th Nov. 1686, to appear the next day, in the Convocation-house of St. Paul's, in the diocese of the bishop of London; he being rector of Curringham in Essex, within that diocese. Upon the 20th, a Habeas Corpus was brought to carry him from the King'sbench prison to the Convocation; where he found the bishops of Durham, Rochester, and Peterborough, commissioners to exercise the authority and jurisdiction of the bishop of London, during his suspension, with some clergymen, and many spectators; and a libel exhibited against him by one Godfrey Lee, a proctor, dated that day, charging him of being guilty of great misbehaviours; but specified none, nor proved any; and only referred to a record before the king's temporal judges. That Mr. Johnson demanded a copy of the Libel, and an advocate; both which the bishops denied him; but proceeded immediately to sentence him: which was, 1. That he should be declared an infamous person. 2. That he should be deprived of his rectory of Curringham in Essex. 3. That he should be a mere layman, and no clerk; and deprived of all right and privilege of priesthood. 4. That he should be degraded thereof, and of all vestments and babits of priesthood. 5. That he should undergo the punishments aforesaid. Against which proceedings Mr. Johnson protested, as being against law, and the 132 Canon, not being done by the bishop of London, his own diocesan; but they refused his protestation. That then he appealed to the king in

chancery; but they refused to admit his appeal. And immediately they proceeded to execute the said Sentence, and to degrade lim by putting on his head a square cap, and then taking it off again; then they pulled off his gown, then his girdle, which he demanded as his proper goods, bought with his money, which they promised to send; but they cost him 20s. to have them again. After all, they put a Bible into his hand; which he would not part with, but they took it from him by force. All this was done, viz. the Libel, Sentence, and execution of it, in three hours space, on Saturday the 20th of November, having decreed summarily, as they did.-That, on Monday after, the Judgment in the King's-bench were executed with great rigour and cruelty, the whipping being with a whip of nine cords, knotted, shewed to the committee; and that Mr. Rouse the under sheriff tore off his cassock upon the pillory, and put a frize coat upon him. That Mr. Johnson's wife had also an Information exhibited against her in the King'sbench, for the like matter as that against her husband."

Resolved, "1. That the Judgment against Mr. Johnson in the King's-bench was illegal and cruel. 2. That the Ecclesiastical Commission was illegal; and that, consequently, the Suspension of the bishop of London, and the authority committed to the aforesaid three bishops, was null and illegal. 3. That Mr. Johnson not being sentenced, deprived, and degraded, by the bishop of London (if he had deserved the same), was illegal. 4. That a Bill be brought in to reverse the Judgment in the King's-bench; and to declare all the proceedings before the three bishops to be illegal, null, and void. 5. That an Address may be made to his majesty, to recommend Mr. Johnson to his majesty's favour, for some ecclesiastical preferment suitable to his services and sufferings."

Articles of Impeachment against sir Adam Blair and others, for dispersing king James's Declaration.] Mr. Attorney-General reported from the committee, to whom it was referred to prepare Impeachments against sir Adam Blair, captain Vaughan, captain Mole, Dr. Elliot, and Dr. Grey, That they had prepared and agreed upon an Impeachment, accordingly: which he read in his place; as followeth :

ARTICLES OF IMPEACHMENT OF HIGH Trea SON, and other high crimes and offences, against sir Adam Blair, captain Henry Vaughan, captain Frederick Mole, John Elliot doctor in physic, and Robert Grey doctor in physic;

"Whereas king James 2 having abdicated the government; and their majesties king William and queen Mary having, on the 13th day of Feb. 1688, accepted the crown and royal dignity of this kingdom, according to the Resolution and Desire of the lords spiritual and temporal, and commons, now assembled in parlia

Debate on the Breach of Privilege upon the Earl of Danby.] Sir W. Strickland. I would know how this Breach of Privilege came? I would not have this lord affronted.

Earl of Dunby. Had I thought this a breach of Privilege, I would have complained, nor was it of that kind. You have so many weighty affairs upon your hands, that this is not worth your consideration.

Mr. Smith. I stand up only to tell that noble lord, that, if he will say he was not taken up by a messenger, I am satisfied; if he was, it must be Breach of Privilege; but if there was no such warrant sent, the noble lord will tell you, and you may proceed to other business.

Sir Walter Yonge. I would have that lord tell you plainly, whether he was taken into custody? If he will not, you must go another way. Cominou fame says, a messenger served a warrant upon him; and I desire the messenger may be sent for in custody.

Mr. Smith. I am always for the rights of my country, and of this house, and if he will not tell you, an honourable person will tell you, that he saw the warrant; and that is sir John Guise. I would know of him, whether the messenger had not a warrant, signed, Nottingham,' to take lord Danby into custody?

Sir Edw. Seymour. I do not see any extraordinary method you need take in making enquiry into this matter. The privilege of the house is not to a member only; it is to the house. The highest Breach of Privilege is the imprisonment of a member. If that be not, I know not what is. Where are the debates of this house, if this shall be? Nobody can sit here with safety. Have your predecessors had so much caation in these cases, and will you be indifferent? Shall you suffer your member to be taken out of a supreme court into custody by a Subpoena? That the Speaker, a privy counsellor, should know of an order of council, that breaks your privilege to sit in council, and he not hinder it! This is a catching age for precedents, not only of making, but imposing precedents, when I consider how you parted with the Habeas Corpus act, when you sit here obnoxious to a great man.-Lord Danby says, 'He does not know that his privilege was broken; but he can tell, if he will, all the matter. Put a buoy upon the anchor, that men may debate freely, and not have that a doubt when we are gone away.

The Speaker. Complaint was made to the council of a ship seized at Exeter-Notice

Eldest son of the marquis of Carmarthen, and called up to the house of lords a few months after, by the title of lord Kiveton. Being brought up to the sea service, in 1702, he was appointed vice-admiral of the red, and in 1712, he succeeded his father as duke of Leeds. He died in 1729, and was great-greatgrandfather to the present duke.

VOL. V.

Sir Edw. Seymour. I shall be tender of representing a thing not as it is. I was served with two Orders, and I said I would not appear to the summons of a lesser council, when I was a member of a greater.' I told the king, 'I came in obedience to his commands, but not to the Order of Council, but persons that sat in council should know I was a member.' The king said, He knew nothing of it.' When I had the honour to sit in that Chair, and in Council, no member can say that ever his privilege was broken.

Sir Henry Goodrick. If we must believe this lord, &c. he tells you, It was no Breach of Privilege; but what if I, or any man, say, no warrant was produced; I heard him say, A man came from lord Nottingham, and desired to speak with him;' if this be made out, he has dealt candidly with you, and all mankind.

The Speaker. We are gone off from the matter. Persons of honour are shy, and think it hard in what concerns themselves: they look upon it as a point of honour. If a warrant was ordered, it was a Breach of Privilege. I cannot blame Westminster-hall, if these things be suffered when you are gone, if, when you are here, you may be served as lord Danby was. He tells you,' He took it not for a Breach of Privilege! But that there was a warrant, and served, is another breach of privilege. But if this be a breach of privilege, it is proper to send for the messenger.

Mr. Smith. What I insist upon is, that Guise may inform you what he knows of the warrant.

Sir John Guise. All I know is this: I was in the Gallery at Whitehall on Saturday, where I met the messenger, Evans (whom I had the honour to know, having been in his custody,) I told him, He would be brought before the house for seizing lord Danby.' He replied, He had his justification in his pocket,' and produced the warrant for seizing lord Danby for treasonable practices, signed Nottingham'.

Sir Edw. Seymour. I hope lord Danby will have a better opinion of me, than that I did reflect upon him. Pray order the messenger to attend you, seeing the noble lord is tender in telling you.

Sir Henry Goodrick. If it be treason, your member has no privilege. I would not stifle the thing, but send for the messenger.

Mr. Garroway. I would nip this in the bud. The Clause in the last Act of Habeas Corpus excepts members from being attached without acquainting the house. I would not only send for the messenger, but the warrant.

Evans, the Messenger, was ordered to attend the next day with the Warrant.

Debate on Mr. Justice Bedingfield, touching the Dispensing Power.] The house proceeded in the consideration of the first Head of the Bill of Indemnity.

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