may trust with the message. I believe one Impeachments: and it does provide, that Imof the gentlemen is in England, and I did dis-peachments shall not be circumscribed in point cover one of their names to the privy-council; of time, and that he shall have a copy of the and as for the other, I have not discovered him, indictment, witnesses upon oath, counsel, &c. because I had not an opportunity. I desire I But how can this be imagined to repeal any may be taken into the protection of the house, part of the 25th Edw. 3? Will you say, though and that I may have a sum of money to enable this be just in indictments, it is not just in imme to make this discovery." peachments? The proviso of the statute of Edw. 3rd has reserved all doubtful Treasons to judgment in parliament. There is nothing touched of that proviso in the Bill. But says Clarke, In other things there must be two witnesses, but in constructive treason one witness is enough. This is the bottom of the objection, and it is an imagination that Clarke has found in his judgment. Nothing, in this bill, does touch that; but, as he says, 'It is hard to condemn a man for an unknown treason, by one witness, and a known treason by two witnesses.' The Amendment does not take away constructive Treason, and there has been but one instance, since Edw. 3, of con-' structive treason judged; and that was in the case of John Imperial.

Sir John Lowther. You would not have sent for this man without some hopes of fruit. Possibly it had been as fit for a secretary of state to have examined this fellow. When this man convicted a man for his life (Mr. Crone) he was not of light reputation. To betray the king's councils, whosoever they are, they deserve to answer it. If they be too great to be meddled with, I have done little in getting on horseback to bring in king William. I believe one of these men be mentions, is not in Flanders. Perhaps he is a youth of levity or debauchery, but he offered a fair thing, to bring him. If he be your hostage, there is no danger. Sir Charles Sedley. Whatever credit this man is of elsewhere, he has had great trust by queen Mary. This boy having received so much money, without doubt he was trusted. As for taking him into protection, and addressing the king for a sum of money for him, and some reward-If he produces original papers, with hands and seal, I know not how he can deceive us.

Sir John Thompson. Now this is come before you, you must do something in it; the honour of the house is concerned in it. Time will try best whether the thing be true or false. I will say nothing to his integrity, but I find he has played with both hands, here and in France; but in which he is most sincere, I know not. He tells you, That Papers, &c. are at his lodgings. I would secure his Papers, and send to his lodgings.

Mr. Humpden. If the lords be let in upon you, they may undo you. I would treat the lords with all respect imaginable, in my little sphere. The lords are content that there shall be no limitation of Impeachments in parlia ment. I wish to God this law had been sooner, and perhaps you would have had some good commoners alive. It is objected, that this may go farther than you intended: says Clarke, 'I doubt, this will protect men against declaratory Treason.' Pray, with all our haste, give ine leave to propose this caution; that, after the words, No limitation of Impeachments in time,' be pleased to add, 'This law not to extend to repeal any part of the Statute 25 Edw. 3.'

Mr. Finch. As to what has been said, That this Amendment takes away any privileges of the house, ushered in with a graceful concession from the lords,' I know that a commoner may be impeached, as well as a lord; but if a man be impeached for that which is a

Debate on the Lords' Amendments to the Bill for the Regulation of Trials, in Cases of Trea- | son.] Dec. 11. Mr. Clarke. I would not agree to the lords Amendment in Impeachments, and limitation of time. I hope the house will be tender to reserve the right of Im-known treason, it is not to be imagined that the peachments in their hands, and I hope this Bill will not amount to repealing the Statute of 25 Edw. 3, of Treasons reserved to the judgment of parliament. Suppose a person should conspire to burn the Fleet, if it be proved by one witness, he is to die for it. Suppose a person should prevail with the king to raise Money without parliament, and no way to come at such a person but by parliament: by this Act you cannot come at him. Farther, I fear there will be no Treason but by statute; and if there be no indictments, there can be no Impeach-shall be indicted, condemned, and attainted ments. I fear this Bill will repeal the 25 Edw. 3rd, and I am against it.

Mr. Finch. I did not expect this objection against the Bill, but I think it is so remote, as not to come into a man's thoughts. Whereas, before the lords Amendment, the Bill was for the prisoner's evidence to be upon oath, and to have counsel, and nothing of that to extend to

commons would impeach a person without two witnesses to that treason. You may as well propose a proviso for that Statute de bonis conditionalibus, as for that statute 25 Edw. 3, ' In doubtful Treasons, the Judges shall tarry, and not proceed till the parliament have declared the treason;' but I ask, if a man be indicted for that, may that be a question, and the jury find a man guilty without two witnesses? No man can be proceeded against without two witnesses, by the Statute of Edw. 3. No man

without two witnesses-Such a case cannot be supposed-But for the reasonableness of the proceedings of this house, God forbid but that a man should have the same method of procecding as in other places! A man must have two witnesses against him (by this Bill) and his own witnesses sworn: which is reasonable in Impeachments, as in Indictments; as in

other cases, so in this of Impeachments, a man shall have his counsel. No man can say, nor suppose, there will ever be such a case, that a man shall not have this time limited in the Bill; but learned men have objected, (as Mr. St. John, and others,) and very much doubted, whether the Statute of Henry 4 had not taken away Impeachments in parliament; but this Bill does declare Impeachments in parliament, and that no time takes it away. Here is no law taken away, but the right of Impeachments is established,

and lessen themselves. The power of Impeachment ought to be, like Goliath's sword, kept in the temple, and not used but on great occasions. The security of your constitution is lost, when you lose this power. The statute of 25 Edw. 3, did foresee that men would be above the law; and, I believe, did not take away those that were treasons at common law. Seductio Regis can be punished no otherwise than in parliament. In the lords Amendments it is, 'He shall have like means of defence in Impeachment, as the subject in inferior courts is allowed.' This is not Treason by 25 Edw. 3. But do not these words give him the same defence? If that be so, then that branch of the statute of Edw. 3 is directly taken away. It is said, 'The commons may be impeached;' but we know, the lords have refused an Impeachment, in the case of Fitzharris * at Oxford. I am against the Amendment.

Mr. Attorney Treby. I do not wonder at the

Sir Tho. Littleton. Finch says, 'Impeachments in parliament have been a question, but this law fixes them, and no time barrs them.' I know not if some have been of opinion, that Impeachments in parliament are taken awayI do not blame Finch, who thinks the lords thought to fix what was doubtful before. I dare be bold to say, if the Clause had been proposed here, before it would have passed this house, you would have taken care that no-zeal of the house, when so great a matter is bething should affect Impeachments in parliament, and the lords say it shall-A commoner may be impeached as well as a lord; and, I hope, that care is taken. And, after all, the terror of an Impeachment is not so great, as it is thought. We see persons have not valued them. Here you shall have cunning lawyers defending an Impeachment, and I hope I shall not degrade your members to argue against lawyers. But when an Impeachment is by gentlemen of his own quality, I think a cause is as well tried without counsel, and I would disagree with the lords.

fore you as stating Trials for Treason; and the honour of the house is a great thing in Impeachments. When the parliament had a great opinion of Charles 2, when the safety of the king's person was considered, the statute of 25 Edw. 3 was thought the safest and best that ever was made: before, there was a latitude of construction; and as treason was in the highest degree of penalty, (lands were forfeited to the crown, and not to the lord) it was wisely done to constrain that construction. That part said, 'Because it could not enter into the mind of man to excogitate the offence of Treason, &c.' The Speaker. I take leave, without arguing, Men may invent Treasons of a higher degree to open the Clause, (and reads the Clause of than any mentioned, &c.—and referred to judgImpeachments) viz. Not confined to point of ment in parliament, and called another offence. time in Impeachment, and Witnesses for the Your value is giving Money, and bringing men prisoner to be sworn.' There are two things to account for great crimes. If you only give in which the words admit of doubtful construc- money, you may lie under the hardships of tion: one against the honour of the lords, and great offenders-You have had instances lately the other of the privilege of this house. As the of corresponding with the king's enemies. But Amendment stands, can a person be allowed what I mightily wonder at is, that Impeachto challenge, &c? Then that person may chal-ments should be taken away by the Statute of lenge a lord. In ordinary prosecution, the person must have two juries, upon oath, to find the bill, and your Impeachment is not upon oath. The commons are general inquisitors, and not upon oath; it may admit disputes, and have variety of opinions, and the laws are to be taken in the most favourable construction for the life of the prisoner.

6

Mr. Solicitor Somers. You have done justice to the house in stating the question. The more dark the lords Amendments are, the more they are to be suspected. You are told, by a learned gentleman, That the lords grant every one of these things to the person impeached;' and why then a new provision? But that which weighs most with me is, that, in the last parliament, every word was left out that related to Impeachments, it was of such mo. ment; and the lords have now made a direct contrary Clause. Whatever is from the lords, nothing shall be offered to mend your case. The house of commons go from their dignity,

Henry 4; but that statute is not meant of Impeachments, but of Appeals of one lord against another in their fury: it never intended taking away Impeachments; but in Mr. St. John's Arguments against lord Strafford, I find no such thing. Treasons at common law were known within the proportion and reason of common law. I fear, this Clause of the lords weakens your constitution. Impeachments are seldom used, as not fit on common occasions; but I would keep it as it is established by 25 Edw. 3. If but a doubt in it, plainly say that you will keep it, and that you will take as much care in this as your ancestors have done.

Sir Edw. Seymour. I have observed, that those gentlemen who are for disagreeing with the lords in this Amendment, are against the Bill. The arguments have gone as if the Clause relates only to the person impeached. Some reasons have been given against counsel for the

See vol. iv. p. 1332.

prisoner. I have had the honour, or misfor- | Declaration mentioned in an act of parliament

made in the 30th of Charles 2, entitled, An Act for the more effectual preserving the king's Person and Government, by disabling persons from sitting in either house of parliament.'

tune, to have been impeached *; but they that brought it in were ashamed of it, and that consideration makes me desire to have it easy to such as shall come under it.-Before the Statute of 25th Edw. 3, Treason was individuum Sir Tho. Littleton. This Clause is not well vagum; but that declares it. No man doubts timed, now the crown is in more danger than but that the king and parliament can declare the peerage. Were I a peer, I would so cle Treason-Treason or any other Felony' the trial of peerage, that all the peers must be That was the thing complained of in that sta-summoned. My reason against this is, that tute-How can Impeachments have relation to all the peers of England are of kindred, which that statute? When all is done, I am as little is an exception for a commoner. If all the forward for Impeachments as any man, nor peers should come, they may have the majowould I give the lords new jurisdiction; but if rity of kindred, and the commons have no there be any doubt, I would have it explained, benefit by it. I am against it. that it may be understood; but do not make it harder in Impeachments than in any other trial, when the whole weight of the kingdom is upon the prisoner.

Sir Christ. Musgrave. This has been a long debate, and deserves the consideration of the house, it is of so great importance. If I thought that it would lessen the power of Impeachments, I should be against it. Your power is not lessened by the prisoner's having counsel in impeachment, as when tried in an inferior court But the construction of the words (as the Speaker said) extends not to challenge of their Judges in Impeachments, any more than in the common way of trials.' What is it the lords have offered? In cases of Impeachment, that witnesses may be upon oath, to make them more cautious. Those who lay the greatest stress upon this Clause were most against the bill at first; and I hear not of any Clause from those gentlemen to mend it. I can never suppose that the commons impeach upon one witness, nor the lords condemn.

Mr. Bertie. This Clause is only for trial of peers out of parliament; in parliament they are safe. This will make peers more ready to stand up for their country.

Mr. Solicitor Somers. I observe it an objection, That speaking against the last Clause was speaking against the Bill.' It is not the intention of any man to establish an aristocracy; and this Clause is, in a great manner, to give impunity to peers, by this bill. If all the peers are to be his judges, a great many may be his friends and relations. Here is a lord the most abandoned creature in the world, it would be strange he had neither friends nor relations to stand by him. I am against it; for, by this method, you will never have a good bill, but it will be thus clogged. There is no one advantage that the commons can have in this bill, but the lords have it without clogging it with this Clause. Your ancestors have placed great power in the lords, on account of their great possessions; a third part of the nation was amongst the clergy and the lords, and the other two in the king and the commons; To this Amendment of the lords the com- but since the suppression of religious houses, mons answered, "That the course of Impeach- and abolishing tenures, the commons have been ment is a constitution so necessary for pre-greatened. But the lords have a controul serving the government, that the commons cannot consent to admit any thing relating thereto in general words; because they may be liable to divers constructions, whereby proceedings in such cases may be rendered ineffectual."

The following Clause, marked A, was added by the lords: "And be it farther enacted, by the authority aforesaid, That upon the Trial of any peer or peeress, for any such Treason, or misprision of Treason, as aforesaid, that all the peers that have a right to sit, and vote, in parliament, shall be duly summoned 20 days at least before every such trial, to appear at every such trial; and that every peer so summoned, and appearing on such trial, shall vote in the trial of such peer or peeress so to be tried; he and they first taking the oaths mentioned in an act of parliament made in the first year of king William and queen Mary, entitled, 'An Act for abrogating the Oaths of Supremacy and Allegiance, and appointing other Oaths; and also subscribing, and audibly repeating, the

* See vol. iv. p. 1222.

upon you in law-making, and this is great power. Suppose a great faction in the lords house to hinder any thing from moving to you from the king, what controul have you upon them? What you do now in the lords privileges, you take so much from the crown and yourselves. Whatever you do of this kind can never be remedied; for the house of peers will not part with any thing they bave got; the crown may, for it must use you. If the lords are weary of this privilege of trial, let them take the common justice of the nation, and abide by their privileges as they stand. When this Clause was sent down, and rejected, the lords ordered a committee to enquire into precedents, and have judged it their privilege; and as they are content with it thus, pray do

you so too.

Mr. Finch. I hear an objection made, That when all the peers are summoned, those of kin will be sure to appear, and there is no compelling them.' And that balance of the greatness of the peers is changed. The peers were so great men formerly.' As the law stands now, when the king erects a court of trial for a

who shall have privilege, and who not, I am against that. I would, at present, wave both these questions, and not lose the fruit of this debate: But if you will lay your hands upon offices of great profit in this house, and if you will make distribution of it to the public use, I am for it.

Admiral Russel. I move, That the moiety of all Profits of Offices above 500l. per ann. should go to the use of the War.'

peer, the lord steward summons them; and if they do not appear, they are finable for not appearing, it is such a contempt. Now turn the tables; what alteration are you making in the law? If they be impeached, they are tried by all the peers; if indicted, all the peers are to try him; and it is but the same in parliament as out of parliament. The great care of all this is the rod of Impeachment, where you have all the peers; but it is not to be supposed that one of the states will be in conspiracy to overthrow the rest. Where is the mighty mischief of this trial of peers, out of parliament, as well as in parliament? It is said,This has been attempted before, and rejected;' but then justly, when it was tacked to matters not relative to it; but here it comes naturally. But it is said, 'This is for the benefit of the peers, and not of the commons.' But if it be a reasonable thing, I hope you will agree. Though no man is accountable for what is said in parliament, yet there are unlucky memories out of parliament. There is no hurt in this Clause, unless a man will say, that, the parlia-Lowther is worthy observation: they do lose ment sitting, the government is less weak than by their employments, and I would have them exempted.

when it sits not.

Mr. Attorney Treby. The consequence of this Clause is, that when a lord commits a ca pital matter, 'tis said, It is but like Trial in parliament;' but 'tis of another force in parliament, than out of parliament. If a man be so great as to keep off a parliament, and to make peers, the man to be tried will be nearer impunity. I would not place them in that degree of impunity that our ancestors never knew, nor ever would give them.

The question for agreeing with the lords in their last Amendment, in adding the Clause marked A, passed in the negative; and a Committee was appointed to draw up Reasons to be offered at a conference.

Debate on the Observations delivered in by the Commissioners of Accounts.] Dec. 12. Sir John Thompson. I could wish we had a self-denying Ordinance, "That no persons should sit here that have Places, or Offices of profit.' I am justified by good authority; for, before Henry 8's time, no person that belonged to the court was permitted to sit within these walls. Tis wonderful to consider, that, when the commons were poorer than now, they should remove great men, and favourites, from the crown: the reason then was, there was no dependency upon the court; they brought more of the country, and less of the court, with them in after times. I speak my mind truly, and have no reserves; but I believe we shall not carry this, because there were never more dependencies on the court than now.

6

Sir Christ. Musgrave. I moved the question, and I'll tell you the meaning of it; That no member shall be a receiver of money granted by the excise, or taxes.' I think it more proper that they should not be receivers, than give away the privilege of the house.

Mr. Palmes. We ought all to stand here on an equal foot. If we make discrimination of

Sir Robert Rich. Russel spoke to me of this motion long ago, before I had a place; but now I rejoice that I have an opportunity to shew my respect to the government, and show myself willing to work hard to ease the people. Sir John Lowther. I am as ready, as any body, for this motion: I will only say, if I found my service acceptable, I would serve for nothing. I am for the question entirely but there must be exceptions; as of the Judges; they lose by their practice in being made Judges; and the Commissioners of the Great Seal.

:

Sir Christ. Musgrave. What is said by

Mr. Howe. I am sorry that we that have no offices, have no power to vindicate ourselves; but some things are to be considered in the question. There is great difference in employments. A man has greater loss in the country by attending them, and some are obliged to keep tables.

Mr. Dutton Colt. If offices of 500l. per ann. shall not be rated, I shall have no share in it; but if keeping no tables, I am willing to pay my share.

Col. Granville. I move, That all Salaries exceeding 500l. per ann, shall pay one half to the government, during the French war.'

Sir Stephen For. The necessities of the government are so great, that they make the valiantest man tremble at the consequences of delay.

Sir Robert Rich. The plainest way is to begin at home. The gentlemen of the Admiralty have 1000l. per ann. paid them. My plain intention is, that they should have 500%. per ann. but to cut off two parts of three, is the way to work them to nothing.

Resolved, nem. com. "That the Salaries, Fees, and Perquisites of all officers under the crown (excepting the Speaker of the house of commons, the Judges, the Lords Commissioners of the Great Seal, Foreign Ministers and Commission-Officers, serving in the Flect and Army) exceeding 500l. per ann. shall be applied to the use of the War."

Report of a Conference respecting the Bill of Trials.] Dec. 17. Mr. Montagu reported

"The detection of extravagance, and of abuses in the army and public offices, were not only animadverted upon in the course of the debates upon the Supplies; but induced the commons, with great propriety, to introduce several Bills for retrenching the Salaries

Reasons to be offered at a Conference, for dis- | nister justice, that the lords, when they are to agreeing with the lords in their Amendments to the Clause marked A, (p. 681), in the Bill of Trials; viz. "This Clause, added by the lords, is of a different nature from the intent | and purport of the Bill; which is designed to extend no farther than to allow the subject a more equal way of making their defence, in Trials of treason and misprision of treason, but not to alter the court, or the method of constituting it."

receive it, are to lie under greater hardships and disadvantages than others, in cases where their lives are to be defended.-And, as they have a part in the legislature, it seems to be yet less reasonable, that they should, in the method of their Trials, be so distinguished, as to be more exposed than the meanest subject in the kingdom -The lords conceive that nothing is more conducing to preserve the whole constitution, than a mutual care of one another in all the parts of it. It is that most espe cially, which must cherish and promote the good correspondence betwixt both houses, which is so indispensibly necessary for the maintaining the safety and greatness of the nation; of which they are so fully persuaded, that they will never fail to support and improve, to the utmost of their power, the true interest of the house of commons, and therefore cannot doubt but that the house of commons will be as ready to comply with the lords in this, or any other instance, where they shall be well founded, as they take themselves to be in the matter now in question."

The King's Speech on passing the Money Bills.] Dec. 24. The royal assent was given to two Money-bills; upon which occasion his majesty expressed himself as follows:

To which the lords, at a Conference, returned the following Answer: "The lords observe, That, in the Reasons offered by the commons, for disagreeing with them in the Clause marked A, in the Bill entitled, An Act for the better regulating of Trials, in cases of Treason,' they do not object against it as unreasonable in itself, but as it is of a different nature from the intent and purport of the Bill. -The lords look upon it quite otherwise, and cannot conceive how any thing should be thought foreign to the Bill, that doth so naturally agree with the scope of it, which is the protection of all innocent men, who shall at any time hereafter be accused of any of the crimes therein mentioned.-The ground of this Bill is, that every man, who shall be prosecuted for Treason, or mispriston of treason, shall have a fair and equal trial for his life; so that, in what respect, or by what circumstances soever, as the course of proceedings now is, an innocent man's life, estate, or liberty, may be unduly exposed by his being prosecuted for the crimes above expressed, it is very fit there should be a remedy; and therefore, if the present method of trying peers giveth just cause of objection to it, in relation to the true and natural meaning of this bill, it is either to be showed, that the objection is of no force, and that, in the present method, there is no such defect or in-new year is already come; while our preparaconvenience, or it must be acknowledged there ought to be a remedy; and then it cannot be denied, but that such a remedy cometh properly in this Bill, since it agreeth both with the title and intent of it.-The lords are of opinion, That the interest of the people of England is at least equally concerned with that which they may be to have in passing this clause. In their judicial capacity it can never be thought convenient for those, to whom they are to admi

of office, and for preventing future abuses of the Revenue. These bills, however, were either rejected by the lords, or clogged with such amendments as tended to defeat their very purpose. A bill for ascertaining the Commissions and Salaries of Judges, and rendering them independent, began in the commons, and passed both houses; but the king refused his assent to it. The declining influence of the crown, unequal to the vigorous prosecution of measures of the highest national concern, as well as the dread of conspiracies which broke out at this time, were apologies for withholding the royal assent from a Bill essential to the pure dispensation of justice." Somerville.

My lords and gentlemen; I must not lose this occasion of returning you my hearty thanks for the great proofs you continue to give me, of your zeal and resolution to support and assist me in the vigorous prosecution of the War against France next year: and I assure you it shall be my greatest care that the assistance you give me, may be so applied, as to render them more effectual for the Aids you designed them: but I must take notice to you at the same time, with some trouble, that the

tions for it are not only more backward, but those of our enemies, as we have reason to think, in greater forwardness, than they were the last year. I find myself therefore necessitated from this consideration, most earnestly to recommend to you, gentlemen of the house of commons, the hastening such farther Supplies as you design for the prosecution of the war;-My lords and gentlemen; The season being so far advanced, this present sessions cannot admit of a much longer continuance, and therefore I must recommend to you the dispatch of all such other Bills, that you shall judge necessary for the public good."

Debate on the Conference with the Lords on their Amendments to the Bill of Trials.] Dec. 31. Sir Charles Sedley. Mr. Speaker, the Trial by their peers could never be meant peers of the king's appointment; I take the Clause in question to be very agreeable to the title of your Bill; for it is entitled, 'A Bill for the more equal Trial of persons accused of Treason, or Misprision of Treason.' Upon which the lords. have grafted a provision for themselves in that

Sedley's Works, vol. ii.