Mr Garroway. Bedingfield is dead, and it is said of him that his Advice was extrajudicial. If once Judges shall be summoned to court to give private advice, there is an end of your laws. You cannot disable a dead man from office, but you may set a mark of displeasure upon him, though he be dead.

Mr. Christy. If the king demands his opinion, and he gives a dangerous opinion, and no case drawn, it remains a doubt whether he was for the Dispensing Powers, or not.

Mr. Hawles. To what purpose shall we name a man that is dead? For except all opinions, and crimes may be more than in court. If there be a doubt in the case, he cannot answer for himself. I would have no question upon him.

The Speaker. I must take notice that, in the last Vote, you excepted a dead person; lord chief justice Wright.

Sir Robert Rich. It is known how late he came into his place; he could not get much money. He was the worse for his place; his estate is very small, that descends to his posterity, and I would not except him.

Sir Joseph Tredenham. He is dead, and the question is, Whether the sour grapes he has eaten have set his son's teeth on edge? He was dead before you made the Resolution, and I question whether properly you can name him.

Mr. Smith. I believe, this gentleman had a small estate, and so would the rest have bad, if honestly got. You will do the living justice in sparing the dead.

Sir Henry Goodrick. This man gave his Opinion at a private conference. His Opinion was not a Judgment in public; let it be affirmed by any gentleman, that he was so far from Countenancing the law as to take the Test. I would restrain it to this point, and no more upon this Head.

Mr. Foley. All the country know that the Judges gave the Dispensing Power in charge; but because the house is inclined to spare, put the question in general.

Mr. Hawles. Before you put a general question, think of another person who told you, He had his defence in his pocket.' (Sir R. Sawyer.)

Mr. Garroway. You have had a touch by Hawles of the Attorney-General. He cau satisfy you positively, whether he had not order to advise, and have the consent of the Judges, to draw Hales's Patent; if not, he is in the

case.

to the Popish bookseller to print Popish books, not to exceed 5000 in a year, and in that Patent there are the same Clauses, as in Hales's Case. If Bedingfield be exempted, I am contented; but I would not let the less guilty be exempted, and the more innocent go free.

Sir Tho. Littleton. Four are a reasonable number to except: I would not make too many desperate. What are the Solicitor and Attorney? They are but ministerial; the Draught is sent to them in hæc verba, and they do but sign it; and where they are but barely ministerial; I would leave them out.

Mr. Palmes. When you intended to except but a few, it was that you would make them capital. If you do not lay your hand upon those alive, they may do the same thing again. Will you part with cight Judges in a breath?

Sir Rob. Cotton. We are upon the Judges, and I am surprized we should fall from the question upon the Attorney-General, who was but ministerial. He left his place of AttorneyGeneral about prosecuting the Bishops. This will alarm many less criminal, and I am against it.

Sir Tho. Lee. There is a collateral question on a member, who seems to be justified or excused, because he was but barely ministerial. I would ask one question for all, but I would not have it hereafter go for a rule, that a ministerial officer may do any thing (indeed all are ministerial.) But, suppose the chancellor is so, who sets the seal to an illegal PatentFamilies depending, it may raise many enemies, which is not the end of the Indemnity, but to punish some, and bring others heartily to embrace the government for the grace they receive. Great numbers of incapacities are so many marks of ignominy upon so many families.

Sir John Guise. Upon this maxim of policy, I cannot agree to employ those I cannot trust, or put them in a capacity to do more mischief. What will all the people ruined by these men say to us? Pray what have they deserved your favour for? For breaking all your laws? I believe, you will not exclude one of that number from justifying himself. Pray propose every man in particular, and not a general question.

Mr. Hampden, jun. I think you cannot take the Indemnity too far. It is our business to heal the nation; so far as is consistent with our safety, pardon all you can; only in one case, you cannot pardon, and that is, not to bring blood upon your posterity. But as for ministerial officers, they are all so. Posterity is innocent, whoever is guilty, and put the general question.

Head."

Debate on a Petition being presented from the City of London, unsigned.] June 25. The Coinmons received a Petition from the Common Council of London, by the Sheriffs.

Sir Robert Howard. I never heard of this Petition till now. To one thing I can speak ;

certainly there is no question of the loyalty of the city of London, and their full adherence to the government. They got a Common Hall, and went in entirely to the Change, and defeuded it with their hands. You have had petitions here without names. You are told the Sheriffs are the proper officers, &c. and that they will sign it, and pray let them sign it.

Sir Tho. Clarges. I have known formerly strange Petitions from the City of London. In 1641, to alter your laws on several heads till they took off our heads; but the City is in much better temper. I know not, by what appears, whether the Petition be from the body of the City, and I would not have it read. Mr. Howe. I would keep out that filthy trimming trick, to disoblige our friends, and oblige our enemies. I wonder we should go back to 1641, and not remember three years ago. A great many members have suffered in 1641, as much as Clarges, and I would not do any thing that may seem to disoblige the City.

Čol. Birch. The time I have sat here, I never knew when a Petition came from public persons, that ever it was signed; but as for the motious to return the Petition back, for the City to call a Common Council to have it signed, I believe it is true, that the country is in many places disaffected to the government; therefore I would not disoblige them: that safety we sit under, by God's blessing, is from them. There wants but one thing; if they could get us loose from the city of London, their work is done, that are disaffected. I would rather receive the petition in the usual manner, but rather than not receive it, I would send it out to be signed.

The Petition was sent out, and signed by the Sheriffs.

Sir Tho. Lee. When a member brings a Petition to you from any body, he must open it, with his desire to present it. The person who petitions must come to the bar, and own it. Sir Wm. Williams. If your member was the messenger to receive the paper only, it is no great matter; but if he present it in his place, the matter is, whether you will send it out to be signed, or receive it from the member. If be will, let him move for them to come in. He has taken it out of their hands; he ought to open and move it.

Sir Christ. Musgrave. It was the Resolution of the house that this Petition should be signed. I appeal to you, whether it be signed; they only tell you they are directed from the Common Council to present the Petition to you.

Sir Robert Clayton. If that gentleman did understand the constitution of that body, he would know that the common seal is never set, but only signed Wagstaffe.' You have the Petition from the bands of the Sheriffs, as good vouchers as you can have from that court.

Sir Patience Ward. The practice of courts makes the best interpretation of things. The

city is a great body, and cannot sign the Petitition, but you have the Sheriffs who will sign it. I do avow it, and so will other members, if required.

Mr. Huwles. I understood, that, when you sent it out to be signed by the Sheriffs, it should be in no other manner than it is, That they delivered it by command of the CommonHall. Perhaps they were told it would be a criminal matter to come with a multitude of hands. I think it ought to be read.

Sir Tho. Clarges. By the rules of the house you ought not to read the Petition. Forms preserve essences, and they must be observed. Any Order of Court must be signed, and approved by the court sitting, and the order registered. But they say,No, not that; but in a tumultuary way'-when it comes to be an act of theirs, they will not do it. This is not such a signing as the gravity of this house expects. It does not shew that the Sheriffs and Common Serjeant approve it, and for these reasons I must give my negative.

Sir Tho. Lee. I hope reading the Petition depends upon the nature of the Petition, and not the form of delivering it. The use of signing the Petition is, that there be no scandalous matter in it, and that they do avow it, and are accountable to you for their discretion in the matter of it. I would read it.

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Sir Wm. Williams. I do agree with Lee, if we could pass to the matter without the form. If it have not that form requisite, you never look into the matter. We are upon the outside of the Petition, on the face of it; the matter you cannot look into. If it be universally true that a petition ought to have hands, or seals, to it, you cannot receive it, and you have done wrong to so many persons and corporations you have received petitions from, without hands, or seals. Why do you require hands to petitions? It is that the petitioners may be answerable for the contents. Those say, They have order from the Common Council to deliver it to you.' You must have the Petition owned, not for form sake, but a necessary rule. Suppose there is Treason in it, and no person to answer for that Treason, that libel. In the name of the Speaker is in the name of the house; I know it by experience in my prosecution. They are a body without a head, a body without a hand, when, not signed. To read it without a hand,-I am against it. Let it be signed as it is usual. is the sanction of the Petition, and without a hand to it, I shall never give my consent for it to be read.

It

Mr. Boscawen. I appeal to gentlemen, in times past, whether a Petition from the City, signed by a public officer, was not taken to be from the city? The sheriffs and common serjeant (who is the proper officer) who are members of the Common Hall, are included as part of that body. You must put it upon that question, and valeat quantum valere potest. If you refuse that, you refuse what was never done to the city.

Mr. Hampden, sen. The only question now is, Whether they have so signed the Petition as to prepare you for reading it; and they have not signed it as petitioners, but avow it from the Common Hall. They were present at the framing the Petition, and when it was agreed. If gentlemen have no mind to hear reason, (Upon some noise made) you may put the question presently. What farther confirmation would you have? Does it not answer the end of all signing petitions? but,' says the gentleman, the Sheriffs, &c. will not sign it as petitioners, but as ministers of the Comnon Hall; and, suppose the case should be that they do not consent, you are obliged to receive it; it is no fiction, no piece of poetry, but authentic. If because the Sheriffs do not

agree to sign it, and therefore you will not receive it, you put the negative upon the hall by the sheriffs.

The Speaker. They that are against receiving a Petition from the Commons ought to go out, because it is their right to petition.

Sir Christ. Musgrave. Till the Petition is opened, the house is not possessed of the matter, and those for it ought to go out.

The Speaker. I am satisfied in my judg ment that the Noes ought to go out.

So they did and the Petition was ordered to be read, 174 to 147.

Petition from the Common Council of London for taking off the Tests.] The petition was then read, setting forth, "That the body representative of the city of London, in the Common Hall assembled for the choice of sheriffs, cannot but with all thankfulness acknowledge, upon this occasion, the infinite mercy of Almighty God in his gifts of heroic courage and excellent conduct to his now majesty, and wisdom and counsel to your honours; whereby the petitioners right to elect their chief magistrates freely and quietly hath been wonderfully preserved, all their liberties, and the very being of justice, peace, and prosperity, in the city, depending thereupon. That, by the gracious influence of Divine Providence, this city is become very powerful, and a strong bulwark for the defence of the Protestant Interest and the security and quiet of his majesty and the kingdom, if an universal amity and unity be preserved amongst the protestant citizens, who do equally and perfectly renounce and detest all communion whatsoever with the Papacy and the Roman Church, and do adhere only to the authority of the Holy Scriptures of the Old and New Testament: the principal danger, impending over our English Church and State, being, from the politic popish designs, to divide the protestants, as they did heretofore in the beginning of the Reformation; whereby they first subdued and destroyed the Calvinists; and then, with the like bloodthirsty cruelty, suppressed the Lutherans, whom they had deluded to help them in the destruction of their Protestant brethren: and praying the ancient right of the city, freely to elect their Sheriff's and other magistrates, may be vindicated from

all invasions and questions concerning it: and for that purpose, that the Bill for restoring Corporations to their rights and privileges may be perfected, as the weighty affairs of the house will permit. And, in regard of the present dangerous Conspiracy of the Papists and their accomplices against the Protestant Religion, our king, and government; and the Invasion threatened by the French king, whereby the united force of all the Protestants is apparently necessary; they pray, that our most gracious king may be freed from all restraints of using his Protestant subjects indifferently, in his military or civil services, according to their several qualities and abilities, wherewith God Almighty, nature, education, and experience, have endowed them, to that very end, that they might be useful to their king and country, and therein serve God in their generation."

Debate on the Impeachment of Sir Adam Blair, &c. June 26. The Impeachment of sir Adam Blair, &c. was read.

Sir Tho. Clarges. This Impeachment being matter of blood, I would have it debated, Whether the matter contained in it be Treason? In lord Clarendon's Case, it was said, there was never any precedent from Henry 4; nor by the words of the statute 25 Edw. 3, and I believe no precedent since that time. Fitzharris was impeached, and that was for conspiring the death of the king. We are the grand inquest of England, and I hope I shall never be wanting in my duty. I would know, whether, if an indictment be brought to a grand jury, the question ever was, Agree, agree,' [some calling out so] enquire whether the Indictment be according to law. I desire so much satisfaction as a jury would have. consultation held, and no war levied, as in lord Russel's case, is no Treason. If the king's counsel will declare it to be Treason, I shall agree; if not, I doubt it.

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Mr. Howe. Though we have no power to make treason, I hope we shall not have power to connive at it.

Sir Tho. Clarges. This is an extraordinary thing for a gentleman to say, that when a man speaks his mind here, he connives at treason.'

Lord St. John, in his Argument against lord Strafford, says, that judgment cannot be exercised but by Bill.'

Sir Tho. Lee. I confess, that I have not read that Argument this long time, therefore I will not controvert it, but I never heard that a parliament could not judge; but it is a power to be kept solely in parliament, lest it should be an example to Westminster-hall; and therefore judged by Bill of Attainder. Before Edw. 3rd's time, Treason was dressed up as in the late Informations. If men act such things, it is destructive to the whole, and this was put into the statute of Edw. 3, by way of caution, like firing of a beacon. You send not up the Impeachment till the house dares venture their credit upon making it good, and the commons ought to be satisfied that the evidence will hold out with the lords as well as here; else

the evidence should be punished. It is a mischievous practice, when the courts of justice have been exorbitant, and would be safe in so doing. This Declaration that sir Adam Blair - has published, declares another king, and dethrones this. If this be a general opinion, I think we ought not to carry up this Impeachment; if it he a crime (which every budy thinks) it ought to be carried up to the lords, that it may be judged treason.

Sir Tho. Clarges. Lee was of opinion, in lord Clarendon's Impeachment, That there was no common law treason;' upon debate, that Impeachment was not carried up till it was clear, that the Article was Treason. Before the statute 25 Edw. 3, Treason was so ubiquitary, that it was treason, to assert treason, with the proviso relating to the judges in doubtful cases, &c. After that act, Treason was bandied more than before. In R. 2nd's time, sir Thomas Hawksley was adjudged for making a motion in parliament, insomuch that Hen. 4 was petitioned by the lords and commous, That Treason might not be so hackneyed about;' | and in queen Mary's time it was repealed. 1 dare put my credit upon it, there has been no Judgment of Treason from H. 3rd's time; and lord Coke is express, in his chapter of Treason, That the statute Edw. 3. was taken away by the statute of queen Mary.' Lord chief justice Vaughan used this argument, That there was no common law treason, no constructive treason.' Lord Vaughan, (now lord Carberry,) brought in an Article in Clarendon's Impeachment of his corresponding with the king's enemies, and betraying his secret counsels *,' which was special matter; and then the Article was voted Treason.

Sir Tho. Lee. My friendship to lord Clarendon induced me no farther, than that I was against the Address for removal of him from the king; but I concurred with the house, and went through every vote to make impeachments easy here. At that time the king was angry with Clarendon, and took the seal from him, that he might go out of town into the country. The duke of York did support Clarendon, who at that time went to church, and was reputed a Protestant; at the same time, all the lawyers, raised by Clarendon, followed him, and a gentleman then said (Waller) Touch a lawyer, and all the lawyers will squeak.' Vaughan (who was quickly after made Chief Justice) argued as strongly against the Impeachment, as he had done before for it, but told you he had changed his opinion. There are two ways of delivering in an Impeachment; one at the lords bar, another at a conference. The Impeachment of lord Mordaunt was delivered at a conference, by Mr. Seymourt. I leave the house to consider, whether you will deliver this Impeachment at a conference.

Col. Birch. I have sat here long, and seen many things done. It is usual that the most

See vol. iv. p. 385. + Vol. iv. p. 347.

able lawyers go up with an Impeachment to inforce it. I see in my eye a person of great worth, thougo aged (serjeant Maynard) I would have him go up with it.

Serjeant Maynard. Pray put not that upon me, who know nothing of the business. Pray let Birch go, who knows the whole business.

Col. Birch. I never refused the service of the house. The reason why I moved for serjeant Maynard was, because never any man did argue better in the Impeachment of lord Strafford. Clipping a shilling is treason, and is not subverting the government? I would have the person to carry it up, who is the fittest to carry it on.-The Impeachment was ordered to be carried up to the lords by col. Birch.

When the above Articles were carried up to the lords, they appointed a Committee, to inspect the Journals, what hath been the method and proceedings upon Impeachments from the house of commons. This committee reported on the 27th, "That they have considered the Journals as far as the Impeachment of the first duke of Bucks in 1626; and did not examine further off, because they found the entries still shorter the further they went. Their lordships do not find, as far as they went, any particular account touching the method of receiving Impeachments. They find, sometimes, Impeachments have been delivered at conferences, and sometimes with and sometimes without Articles; but when they have been delivered at the bar of the house, it hath always been by way of message from the house of commons: but it does not appear whether the lords on the woolsack were sitting while the Articles were reading; nor doth it appear that any difference hath been made between the receiving a Message where an Impeachment hath been brought up, and any other Message."-On the 29th of June, the house of lords appointed a committee to inspect the Journals, as to precedents of Impeachments, and the grounds and reasons of those precedents. On the 2d of July, the earl of Rochester reported what precedents the committee had found in the Journals, and amongst the Records of the Tower. After considering this report, and much debate, the question being put, "Whether this house will proceed upon the Impeachment brought from the house of commons against these persons?" it was resolved in the affirmative.-The persons impeached were then ordered to be brought to the bar, in safe custody, by the keeper of Newgate, or such of them as are in his custody, on the 4th of July, to hear the Articles read. On the 4th of July, some of them are brought; the Articles are read; they are allowed copies and counsel; and then are ordered to stand committed to Newgate, in order to take their trials. On the 12th of July they put in their Answers in person at the bar; which were carried down to the commons on the 13th and 23d of July.

* It does not appear that the Commons

Report of the Warrant against the Earl of Danby.] June 23. Sir Thomas Clarges reported, from the earl of Nottingham, an account of the Warrant issued out against the earl of Danby, viz. That on Friday last, the earl of Nottingham was informed, that lord Danby had fitted out a small vessel with arms, with some design unknown to his relations, and a wherry to carry him away; that he had this information from the lord president; that he had not time to put it in writing, nor was it given upon oath, but he wrote it, upon memory, for his own satisfaction. Upon enquiry of the reasons, &c. from lord Danby, he said, That the vessel was his own yacht, that he had fitted it with the same arms it had, and no more than before, to make use of for his diversion; n; and that he had no design in the least criminal.' This,' lord Nottingham said, he found so ingenuous an Answer, that, considering his behaviour in the change, in contributing to the present establishment, he released my lord without bail, but with promise, upon his word and honour, to appear upon summons.' Debate thereon.] Mr. Howe. I am willing to go on in the Act of Oblivion, but I am concerned that this proceeding sticks not only on the people, but that their representatives may be in danger. But if, by intreaty, a man may be taken up in this manner, every mother's son may be taken up. I hope you will order the matter so, that you may justify your proceedings.

Mr. Bickerstaffe. This was in the afternoon, and the house not sitting; upon complaint to the president of the council, he could uot do less.

Sir Robert Kich. I suppose that gentleman was not here, when the me-senger gave an account of it. He said, 'He had served the warrant, and whispered lord Danby in the ear.' Sir John Thompson. You may remember, Evans, the messenger, acquainted the house, That lord Nottingham granted the warrant without oath.' I have nothing to say to lord Carmarthen, but one member is injured, and I know not how to justify the thing. If this warrant was granted as a privy-counsellor, or a justice of peace, I know no law for it; for if six privy-counsellors do it, and here is but one, it is worthy your consideration. If as a justice of peace, he cannot take up a man without oath. If one counsellor shall whisper to another, and imprison a man, I know not who can be safe. If we take up this now, at the rate elections go at, and the determination in sir Samuel Barnardiston's Case, they may have a parliament as they please. I know not but that it may be in the power of one great man to make a parliament. I hope the house will be jealous of their right.

ever made any replication to these Answers. On the 31st of March 1690, in a subsequent parliament, sir Adam Blair petitioned the lords that he might be bailed, which was consented to.

Sir Robert Cotton. I take it, any member of the house may be arrested for treason, or felony, without leave of the house, but he cannot be detained without leave of the house. But the question is then, Whether there was an oath given? In this case, I think it was necessary. I think the power of the Habeas Corpus late Act lays that aside. But whether one privy-counsellor, without six, can take up a man, without oath, in matters of felony, or treason, that is the question.

Sir Francis Blake. I should be loth to go into Northumberland without this being decided; there would be no safety for me when I am at home.

Sir John Guise. I am much concerned that this, by a general silence, should be passed over. The Breach of Privilege seems plain; is it not a thing to be mended? If this be prejudicial, and made only a jest, to pass it thus over, if this be done to one, it may to another. Whether if you complain to the other house, of this breach of privilege, it may not be prejudicial? I would pass it over rather than give interruption to the great business, but so that neither I nor any man else be taken up.

Mr. Garroway. I cannot see but that this is a breach of privilege. I would not drive it high, but declare my mind. What you will do in it is another thing, but I hope you will vote it a breach of privilege, though it be no commitment, the only taking the member up without oath. I would go as softly as we can, but I know not how to proceed upon lord Nottingham, without coming to the lords. I would vote it only a Breach of Privilege, and address the king to take order that the like be not done for the future.

Mr. Howe. I cannot agree to this motion. Have we not declared our right? What are we the better? In two months, this man may go round the house, thus. I hope, as Englishmen, we shall not forget our rights; and any man that will do this is not fit to be enployed in the government.

Sir Christ. Musgrave. I think this is a breach of privilege. I suppose it is not the intention of the house (since the Act of Habeas Corpus requires six privy-counsellors to sign the warrant,) to approve it in one only. If that be not our privilege, I know of none that we have. I would not have it go off, that he could warrant the thing. I think we ought to vote it a breach of privilege, and address the king that nothing of this kind be done for the future.

Col. Birch. If this had been done by a person that had not very well understood privilege of parliament, I would be for it as proposed; but the thing apparent in the warrant is called treasonable practices,' and it was evident to him before he signed the warrant. If there be any thing you do not see, pray let us feel it, if you will examine it to the bottom. I am not so much lawyer as to distinguish treason,' and treasonable practices.' See