in all Aids given to the king by the commons, the rate or tax ought not to be any way altered by the lords. 2. The Amendments being in point of time, the commons hope your lordships will not now renew a question concerning the method of granting Aids, which formerly occasioned great debates; and which may now beget many conferences, and end in great inconveniences. 3. The said Amendments make the Bill incoherent, for both houses having agreed, that the forfeitures should commence from July 20, it will look strange that the Forfeitures should begin before the duty is made payable. 4. Ships are now arriving daily, with the commodities inentioned in the Bill; and it will therefore be a loss to the king, by putting the commencement of the duty so far off. 5. As to your Proviso, it being an Alteration, the commons assign their first Reason for disagreeing to it and hope your lordships will not revive old disputes."

The two houses had a Conference on the Bill to reverse the two Judgments against Oates, when the lords insisted on their Amend

ments.

The Lords Reasons for insisting on their Proviso to the Bill for an additional Duty on Coffee, &c.] July 28. The Lords, at a Conference, gave their Reasons for insisting on their Proviso to the said Bill; which were in substance as follow: "The lords are much surprized at the assertion of the commons, That, in all Aids, given to the king by the commons, the Rates or Tax ought not to be any ways altered by the lords, since they conceive it hath always been their undoubted right in such case, to lessen the said rate or tax, whereof several precedents might be given, which at present they are willing to forbear, that they might not revive old disputes. But as to their present Proviso, their lordships are of opinion this general point is not to the case now in difference; it being neither an alteration nor lessening of the duty laid upon those commodities; for a drawback on the re-exportation, cannot be said to lessen the rates imposed upon them; it does indeed take away so much from the king's income, but adds much more to the benefit of trade, which the lords conceive they are equal and competent judges of, and therefore may very well insist on their Proviso." To which the duke of Bolton added, "That he hoped a good correspondence would be maintained between the two houses; for that they were Englishmen, as well as the commons.' And the question being put, to agree with the lords, it passed in the negative, and Reasons to be offered at a free Conference were directed to be prepared.

"

Aug. 31. The lords desired a free Conference on the Bill of Rights and Succession, of which Major Wildman gave the following Report. "That the Bishop of Salisbury was chief manager for the lords, who said the lords had considered of what was offered at the last free conference; and as to the two clauses, and all matters depending thereon, touching the DeVOL, V.

claration to be made by the king and queen, and the persons to take the same, the lords insist upon their Amendment; and that they adhere to their Amendment touching the limi tation to the princess Sophia of Hanover. That the managers then proposed to the lords, whether the lords would admit of any farther de-, bate touching the said matters; to which the lords reply, No; they had no such thing in charge from the lords."

Report of the Conference on the Bill for reversing the Judgments against Oates.] The Solicitor General made the Report of the free Conference had with the lords, touching the Amendments proposed by the lords to be made to the Bill for reversing two Judgments given in the Court of King's-bench against Titus Oates, clerk. Which Report is as follows:

"That the Conference was begun by the managers of this house; who did acquaint the lords, That the commons had desired this free conference, in order to a good correspondence with their lordships. That they look upon the Bill for reversing the Judgments against Oates, not to be the business of a particular man, but of every subject in England, with regard to his person and estate: and that the honour of parliaments, public justice, and the Protestant religion, were concerned in it, as well as the integrity of king Charles 2. and his privycouncil: and that the lords Amendments, if agreed to, would make that Bill of great prejudice to the subject, instead of answering the ends which were intended by the com

mons.

"That the lords Amendments were of two sorts; some relating to the Judgments, and others to the Verdicts. As to the Amendments relating to the Judgments, the commons had hoped, that, after the Declaration presented to their majesties upon their accepting the crown (wherein their lordships had joined with the commons in complaining of the cruel and illegal punishments of the last reign; and in asserting it to be the ancient right of the people of England, that they should not be subjected to cruel and unusual punishments; and that no judgments to the prejudice of the people in that kind ought in any-wise to be drawn into consequence, or example); and after this Declaration had been so lately renewed in that part of the Bill of Rights which the lords had agreed to; they should not have seen Judgments of this nature affirmed, and been put under a necessity of sending up a Bill for reversing them; since those Decla rations will not only be useless, but of pernicious consequence to the people, if, so soon after, such Judgments as these stand affirmed, and be not taken to be cruel and illegal within the meaning of those Declarations.That the commons had a particular regard to these Judginents, amongst others, when that Decla ration was first made; and must insist upon it, that they are erroneous, cruel, illegal, and of ill example to future ages; which is the cha racter fixed upon them by the Bill sent up 2 C

as

to the lords. That the lords having gone so far as to agree the Judgments to be erroneous, it could not be denied, that they were illegal: for that which makes a Judgment erroneous is, for that it is against law. That it seemed no less plain, that the Judgments were crucl, and of ill example to future ages. That it was surely of ill example for a temporal court to give judgment, That a clerk be divested of his canonical babits; and continue so divested during his life.' That it was of ill example, and illegal, that a Judgment of perpetual imprisonment should be given in a case, where there is no express law to warrant it. It was of ill example, and unusual, that an Englishman should be exposed upon a pillory, so many times a year, during his life.-That it was illegal, cruel, and of dangerous example, that a freeman should be whipped in such a barbarous manner, as, in probability, would determine in death. That here were precedents made, which did not concern this man only, or only this offence; but the Judgments pronounced against Oates, were judgments against every Englishman, subject ecclesiastical as well as temporal; the lords as well commons. That this was avowed when these Judgments were given by the then lord chief justice of the King's-bench; who declared: That all the Judges had met; and unanimously agreed, that where the subject was prosecuted at common-law for a misdemeanor, it was in the discretion of the court, to inflict what punishment they pleased, not extending to life or member.'-That as soon as they had set up this pretence to a discretionary power, it was observable how they put it in practice, not only in this, but in other cases, and for other offences, by inflicting such cruel and ignominious punishments, as will be agreed to be far worse than death itself to any man who has a sense of honour, or shame: so that, it was hoped, the lords would find themselves concerned in interest to depart from their Amendments, and not to rest satisfied with a bare saying, that such practices ought to be prevented for the future: much less to insist upon their additional Clause A; which is so far from declaring those Judgments to have been illegal, that it does plainly import an allowance of them: nor does it go so far, as to provide a remedy for the future: for it does only enact, That such excessive punishments ought not to be inflicted for the future: which seems rather to refer to the severity of the execution, than to the Judgment itself. It was agreed by the lords at the last Conference, That the Judgments of affirmance given by the lords, cannot nor ought to stand, when the Judgments of the King's-bench are reversed and therefore the commons think themselves concerned to insist, That the Act may speak plain; and that it may be understood by all who have heard the Judgments against Oates were once affirmed by the lords, that those Judgments of Affirmation may subsist no longer.

"As to the lords Ameudments, which relate

:

to the Verdicts; It was urged by the ma nagers for the commons, That so severe and extraordinary a thing, as the making a man infamous, and taking away his testimony by act of parliament, ought not to be done, but upon the greatest consideration; especially in such a case as this, where the honour of parliamentary proceedings, and of the English justice, were more concerned than Oates.The business of the Popish Plot had great examination in several parliaments, and in several courts of justice: in all which Oates stood a good witness and though his testimony did not stand alone, but was confirmed by other witnesses, and by papers and letters (evidence which could not be mistaken); yet it did deserve to be considered, if the declaring him to be an incompetent witness, by act of parliament, would not be interpreted a great step towards disavowing the Popish Plot; it being certain, that what had been done by the lords, in affirming the Judgments against him, had already had such an interpretation beyond sea: it was therefore fit to have it plainly known, whether that was intended; and to have it well weighed, whether the thing will be so much for the honour of our nation, or our religion, that we should go out of the way, and do an extraordinary thing to come at it :--For, by law, when the Judgment is erroneous (which is confessed in this case), the whole record is to be annulled: and therefore, to let

so much of the record stand as relates to the conviction (which is in effect done by the lords Clause B), is to do an extraordinary thing; is plainly to pass a new censure upon Oates; and to make that which was singly the opinion of the jury before to be the act of the whole parliament: which the commons can see no reason to agree to.-And, though it be confessed, That the present proceeding is in the legislative way, and therefore there is no necessity of strictly pursuing the forms of Courts of Justice; yet, when the commons reflect how they came to be driven to use this extraordinary course for reversing these Judg ments, they cannot satisfy themselves, that it is just to take from the party an advantage which he ought to have had in the ordinary methods of law, without stronger Reasons than they have heard in this case.-They observe, The perjuries assigned against Oates were not in the substance of his evidence, but in the circumstance of time; in which there might be an innocent mistake, without contracting the guilt of wilful perjury; and that a colourable counter-evidence might be easily set up to such a point of time; especially when the thing was under the management of Jesuits, whose whole order was wounded by Qates' Evidence, and who are not scrupulous of using indirect acts, to preserve their credit or interest.-It was also to be observed, That the matter in which the perjuries were assigned, were not new discoveries; but the very same things had been objected, and insisted on at former trials, several years before, when matters were

the state they found him.-That this was a matter of great expectation that the eyes of all Europe were upon it: and that it would be the occasion of great censures, if he should be set up for a witness again, without a full examination of the whole affair; especially in the case of a conviction for perjury; which had something in it more peculiar than other crimes; for every one had a particular concern to be covered from it.-That they would not enter into the question of what was the difference between an erroneous, and illegal judgment; though, perhaps, a judgment that was erroneous in point of form, might not be said to be illegal. As to the Affirmance of the Judgments; and the amendments relating to the Judgments; The Judges had owned to the lords, that there was a latitude left to the court in Judgments, in case of perjury; which was one thing that moved them to affirm the Judgments; but that they had never done it, had it not been attended with the Verdicts; which the lords thought of fatal consequence to take away. That, when the case came to be debated in the house of lords upon the writs of error, there was not one lord, but thought the judginents erroneous, and was fully satisfied, that such an extravagant judgment ought not to have been given, or a punishment so exorbitant inflicted upon an English subject: but, considering his accusing the queen so impertinently, and several other instances; rather than leave so ill a man as Oates capable of being a witness, they, in that streight, chose to affirm the judgments, though they were satisfied of their being erroneous; and, to shew that they were sensible of this, at the same time when they affirmed the judgments, they thought fit, that a bill should be brought in to the house of peers, to prevent the inconveniences of the like Judgments for the future.And therefore, when the lords had gone so far in their judicial capacity, as to affirm the Judgments, rather than the Verdicts should be set aside, the commons were not to expect, that they would recede now, and set up Oates for a witness again, without unquestionable proof of corruption in the jury. That the principal matters, insisted on by the lords, were, 1. To leave out what concerned the corruption of the Verdicts: 2. That their proviso against Oates's being received for a witness, do pass: 3. That so great an hardship should not be put upon the house of peers, as that they should, in express terms, reverse their own Judgments, since there was no necessity of it."

Judgments as these, the lords had, in a manner, taken the law into their hands. That this ar bitrary power, in the lords judicature, is a new discovery; and, if it had been understood in former times, would have been a very expeditious way of altering the law, upon several occasions. The lords, as a court of judicature, are as strictly tied to give judgment upon a writ of error, according to law, as any inferior court whatsoever: They must not proceed upon considerations of convenience; but this judgment of the lords is agreed to be given, not according to law, but according to an opinion which their lordships had conceived of the party; and that also, without any judicial examination: instead of correcting the acknowledged errors of the judgments in the King's-bench, they affirm them; and so change the law, which ought to be the certain and steady rule of government, into the arbitrary resolutions of that house.-That nothing was aimed at by the commons in this bill, but to set that matter right: if this bill be lost, the lords have settled it for law, that every subject may be used in this ignominious and barbarous manner. Oates is the least part of the question, how much soever he seem concerned in it: the grievance is, that the whole kingdom, for Oates's sake, must be made liable to these whippings.-The commons hoped, the lords will take this opportunity of redeeming this error, by passing the bill as it was sent up by the commons; and not expect, because they have given a wrong judgment, that therefore the commons must join to support it by an act of parliament: for their lordships clause did really countenance the Judgment against Oates; enacting only, That such punishment shall not be inflicted for the future.-That it was of great importance to the kingdom to have this matter settled; judgments of this kind having been extended to several persons, and to very different cases; as in that of Mr. Johnson: it was thought (with reason enough, perhaps) by the ministers of those times, that such punishments would awe the people, and fit them for slavery, worse than death itself; according to sir Thomas Smith's observation,

That no nation is less fearful of death, or more afraid of torments, than the English.'That the commons could not think the nation safe without an express and plain declaration, not only, that the Judgments of the King'sbench were illegal, cruel, and of evil example to future ages, but also, that the affirmation of those Judgments was contrary to law."

To what was said, by the lords, to maintain the Amendments which concerned the Verdiets, the Managers for the commons replied to this effect: