Saturday, April 12.
Debate on the above Report.
Sir Thomas Meres.] I was at the Conference, and I
observed that the Lords who managed it, did not open
the Bill nor the Amendments, and so I would do by them.
Their reasons were opened only in a general discourse, and
not by particulars.
The Commons adhered to the words of the Bill.
Colonel Birch.] Now you resolve to adhere. I therefore
desire that, when the Bill is carried up to the Lords, they may
know that the alteration of the times, &c. is agreed to. And
then there can be no incoherence nor disunion in the Bill.
Sir Thomas Lee.] I move to send to the Lords for a free
Conference, to convince them, that the Bill is very well as
it is, if you agree not to the Amendments; and if the
Lords should fully agree, &c. then you may send for a
Conference barely for amending "the 15th of April, &c."
Colonel Birch.] After you have voted to adhere, you
never give Reasons why, and I submit it to Lee's second
thoughts. But you may desire the Lords to make the
day consistent with the coherence of the Bill.
Mr Powle.] Your answer must be to the Expedient.
For they say, "Your Reasons are unanswerable." But the
reason they would have you conjecture, you may pass
over, and tell them, you rely upon your Bill.
Sir Thomas Lee.] When you carry up the Bill, you
never bring it back. The use of free Conferences is to convince them that are to put the next Question, and there is
no more to be put.
Sir Robert Carr.] There are several precedents of altering the day, as is moved, the full matter being agreed.
In the last Parliament, it was done in the case of the Tax,
and in Sir John Coventry's Bill. See the Journal.
Resolved, That it be a standing Order of the House, that, upon
any vacancy of the Chair, no Motion be made for chusing a new
Speaker, till after eleven o'clock.
Monday, April 14.
Sir Thomas Stringer, Serjeant, acquainted the House, that the
five Lords in the Tower, upon their desire, have obtained an Order, that they should have Copies of the Records and Examinations in the Lords Journal, being the King's Evidence.
Mr Powle.] I would consider, whether persons impeached cannot have a Copy of what is matter of Record.
It seems strange, that the Lords should enter Evidence into
their Journal. I would have a Committee to examine
where the error is, and how it comes to be entered, for the
matter is but what may be had in every Bookseller's shop.
Sir Thomas Lee.] It is strange that the Lords, being a
Court of Judicature, should enter all the Evidence; and
for the Lords in the Tower to have liberty to transcribe all,
is a thing of a strange nature.
Sir Henry Capel.] The Commons being accusers, I
wonder the Lords should have Copies of the Informations
against them. It is against the nature of all Courts of
Judicature, to have Copies of Informations delivered to
Sir Francis Winnington.] It will not be denied, I am
certain, that such an Order is entered, &c. The Plot is
concerning the whole Government. The Lords, in their
legislative capacity, may enter into their Journal what
relates to it, for general information, and the good of the
Government. But what is entered, as examinations,
they cannot have Copies of, for they cannot so much as
have a Copy of the Indictment in any Court of Law.
The Lords in the Tower desire this, to avoid circumstances of time and place. But take this as done either
way, in a legislative, or judicial way, it is very irregular.
Mr Coventry.] If this should be, it would be a means
to induce perjury, or subornation of Witnesses.
Sir John Trevor.] Information being given of this to
the secret Committee, Mr Clare, their Attorney, was
employed to search the truth of it, and till he makes
his return, you have no assurance of the thing.
Ordered, That the Committee do forthwith withdraw, and
examine what answer the Lords made to the desire of the Lords
On the Militia.
Sir Gilbert Gerrard moved, to take the Militia into consideration; to make it more useful for the safety of the Nation, &c.
Sir William Coventry.] The posture we lie in, is very
deplorable and dangerous. The French King, by his
influence, is Master of all Christendom, and it is the fate
of this Nation to be defended with few alliances, or none
at all that I know of. Where this storm will fall, it concerns every man to provide for himself; the French King
having made Peace with Spain and Holland; and those
who are not parties in it, have little to defend themselves.
What will the French King do with his men? If he disband none, and he consent to lie under this vast expence,
it is not for nothing. The wisest thing for the French
King to do, is to employ them where they will raise him
fewest enemies. And where can he have the fewest but
upon us? Do you think that Germany and Italy will concern
themselves in our quarrel? They will be glad he is employed in another place. Considering the spirit of the French
King, all set upon glory; and nothing will fill his sails
with more glory, and catch him with that point, like the
accession of such a spot of ground as this to the Catholic
Religion. The more the Papists are suppressed here, the
more it will egg them on to get the French King's interposition. The storm probably will be here, but when it
will fall, I know not. Another thing is likely to invite
the French to fall upon us, viz. our want of preparation,
&c. (and that may make an enemy of a thing of a worse
nomination.) Holland is only likely to assist us, but their
jealousies are great among themselves, and the French
King's great power and influence over them is able
to make such an influence, as to retard them, if not
wholly frustrate any assistance from thence. In the last
Parliament, a War with France was the desire of the
whole Nation, and I hope the courage of the Nation is
the same still. The Militia of England is 140 or 160,000
men, and if disciplined, the French would not attempt
them; and a reasonable Fleet may be set out, not to weary you with the charge, before there be occasion to
make use of it. The Papists will not be wanting to expose all the weakness of the Nation they can, &c. Therefore I move, "That a short day may be appointed, to
take into consideration the defence of the Nation."
Mr Powle.] I was ever one of those that did not apprehend an immediate invasion from the French, but yet
would not leave ourselves exposed for want of defence. I
like the Motion well, but I would have it go farther. If
we should trust to the land defence only, I should be
sorry. Our defence is principally the Navy, that the
French may not come at us, but, as I am informed, the
Navy is in a very deplorable condition. Pray think of
that in the first place.
Mr Secretary Coventry.] People may think, and suppose a neglect; but the French ports have been viewed,
and the condition of the French King at sea is such, that
unless you speedily make preparation—He has ships in
Brest, and all things ready to put out to sea; we have
sour ready, and perhaps he has ten. Now he has made
his peace with Germany and Flanders, and his troops are
going from quarter to quarter, it gives us an alarm. I
second Powle's Motion, "That the fleet may be in readiness
to keep the French at a distance." If Ireland, Jersey, and
Guernsey are not provided for, he may surprize you. You
know not which way he goes, nor where his interest lies
to make attempt, which cannot be defended without a fleet.
There are want of fortifications too; I am loth to tell you
where; therefore let there be a day to consider, &c.
Mr Sacheverell.] I wish Gentlemen would a little more
debate this matter, before they come to a resolution, for
the satisfaction of Gentlemen that are of no better judgments than I am. It seems strange to me (and all know
it) that it has been the business of England for some
years to greaten France—We had but one man to get
rid of, and no talk of any body else. Though we gave
Money to be rid of our fears of France, yet I find that,
as long as we give Money, the fears of France will be
suggested. I would have Gentlemen consider, that we
have charged the Nation to what it will bear, and we
shall be walked to death. In the last Parliament we were
told that all things were ready in the Navy, and it seems
strange to me they should be so soon rotten. The Customs pay for fifty men of war, and where are they? The
Navy is to come home from the Turkish country, where we
made War with Algiers, for Passes, &c. to bring our Merchants to subjection. Are you going to support that
Navy that sets all merchandize at will? Will Holland
stand neutral betwixt France and us? It may be a while;
you have not used them well; but will they come in at
all? The War has all this while been but dropping shillings. If you have Holland against you, you are not a
match for France. Will you bring the War from your
seas?—Clearly, when there shall be such about the King,
as will do their parts, there is no danger of France, &c.
Now it is the middle of April, and if the French come out,
can we have a Navy ready to fight them this summer?
And if the Navy be in so good order, as was represented
the last Parliament, it is well. It must still be the same
men that managed before, that manage things still; clear
the decks of them—But to give Money, to be thrown
thus away, and now to be told, "That the Navy is out
of order"—I will never give Money. Ships out of the
Dutch War are brought you to repair. Will you put
your Money into the same mens hands that have supported the French King? It is worth the consideration of
Sir John Lowther.] I find that something is still recriminated to hinder the consideration of our defence and
safety. It is not the interest of Gentlemen now to put a
difference betwixt the King and his people. We have
sat all this while, and done nothing but the proceedings
against the Earl of Danby. Must not we think of our
safety because there are faults? And must we still infer,
that Money is to be given? To say, because there are not
Alliances made with Holland, shall we lay aside all such
considerations? Pray let not this Motion of the Militia
Sir Gilbert Gerrard.] When I made the Motion, &c.
I as little thought of giving Money as Sacheverell, or any
man that moved it. But I would ask, if the French
come with their fleet upon our channel with 14,000 men,
may they not burn all our fleet? Our channel lies open,
and upon that account only I moved to consider the present State of the Nation.
Mr Garroway.] Any man here may consider the danger we are in; and who brought us into this danger?
Must we not consider the hands that brought us into all
this misery? Must not Gentlemen tell you, that Money
was given for ships, and Money given for stores, upon
your books? If your Money be diverted from the uses
it was given for, and a War made with Algiers, for getting Money for Passes, &c. till you clear your hands
of the ill management of affairs, you will do no good.
Nothing can hinder the French from landing to-morrow
—But the French desire to conquer us among ourselves,
as is plain in Coleman's Letters. "Purge yourselves (as
Lord Sandwich said) from the French at Whitehall, and
there is no danger of them out of France." Go sober
steps, and not precipitately to give Money. Let us see
the return of your Bill of Attainder against Lord Danby,
and the Lords in the Tower; you may else, for ought I
know, give Money to bring the French in. When that
day comes, I will speak my mind.
Mr Boscawen.] It is worth your consideration, whether
the Nation be able to support the charge it is already
under. Therefore unless some course be taken to mend the
ill management of affairs, you may do some good; else
you will throw all away. I see we have no offer towards
alliance with Holland. First we made war with Holland
upon the Guinea company's account, and then we thrust
the French King upon a war with them. I would be
glad to understand whether the Money that has been
spent, was applied to make alliances to secure us. If we
have only a fleet at sea, without any other help of alliance,
it will eat us out; and consider, at the same time, how the
Money given for the Navy has been diverted to other
uses; else all you can do, is to no purpose. Consider how
Money arising from the Customs, which ought to go
towards the charge of the Navy, has been diverted, whether by pensions or otherwise; else all is to no purpose.
Mr Pepys.] It is easy to foresee a great deal of work cut
out for me for another time, and I would not do it in general, but to full satisfaction; that when you enquire into
the present condition of the Navy, every one of these Motions may be added. It is natural for you to enquire,
what is become of the Money you gave for the Fleet
and for the Stores, and what Religion the Commanders
are of. I move, therefore, that you will order Thursday
for consideration, &c. and that these be the heads of
your enquiry, for your satisfaction.
Mr Bennet.] I do intend to give Money, &c. and so I
shall save that Motion; but not only that, but I would
see what Protestant Ally we have. We have forsaken all
but the Popish and the French side. The necessity of the
Fleet will make you all beggars, when you pay twelve
pence for six pence value, as they manage it. The Hollanders could say, "All their Money is gone, and the way
to bring England into subjection, is to make England
poor." And as they have managed it, they make you
so. As to favouring Popery in the Navy, a Captain was
turned out for calling his Lieutenant "Papist," that was
so, and I will prove Popery in your Fleet, at the Bar.
There is not a man in the Fleet, that has served in the Fleet
since the King came in, but was made by the Duke of York.
Prince Rupert had not the power to make a Boatswain.
Bring us once upon a Protestant fund, but let us never
give Supply to be cozened of it by these villains.
Mr Pepys.] This point of Religion in the Fleet, that
this Gentleman seems with so much vehemence to assert,
and will justify, on my conscience is a mistake. I never
heard of it, and it was not in my time, to my knowledge.
Pray order it to be heard at the Bar. But that a general
reproach should be cast upon the Navy, because the
Duke of York named Officers! —The Duke is unfortunate, and with my life I would rescue him. But I offer it
to your consideration, whether any Prince was ever fitter
to name Officers for the Fleet, than he. From the moment I have been in employment, I never knew that the
Duke gave countenance to any one Catholic, as a Catholic. I do affirm, that, by all the care and inspection
that could be taken in the Navy, there was not one Catholic in it from top to bottom, as far as it was possible
for me to know. There was one only suspected, and he
not in the Navy: Since that he is come in, and will submit
to any inspection—For myself, possibly Bennet may speak
with some reflection. I am the man of England that have
passed the most solemn inspection of my Religion. In the
devotion and whole tenor of my whole life, I have been
as good a son of the Church of England as any man. In
the name of God, go on in your inspection, &c. I am so
far from suspicion of Popery, that I am sure I shall merit quite otherwise.
Mr Bennet.] Give me your Warrant, and I will fetch
the Captain that shall make good, that he was turned
out, &c. for calling his Lieutenant "Papist;" and moreover, Sir Roger Strickland is about the Court, &c. And I
can tell you of another Captain that has never taken the
Oaths, &c. What testimony Pepys has given you of his
Religion, was this Parliament.
Colonel Birch.] I am glad to see things change, that
we may debate things without the consequence of Money.
I take it, that the House will not let the King want Money for public occasions, but they will see how it will be
employed, before they part with it. I think we are not
disputing now, who are Protestants, and who are Papists:
I do not know, for Papists take the Oaths apace, in most
parts. You were told, the last Parliament, of ninety ships,
and that they were all in good estate, except five or six.
I would know whether that be so, when you consider the
Navy; and their War Stores sufficient; also at that time,
the best of the Fleet was out upon service; where they
are, and what they need, that they may be drawn together for your service. It has been observed to you, "That
when the Fleet went out, from the Boatswain to the
Admiral, they went under the consent and test of the
Duke of York." Your business is to enquire whether
the course of the Navy is not turned. He that will live in
a known sin for nothing, will do any thing for Money.
Those who are bred betwixt London and Blackwall, will
bring home the Fleet to their wives and children. But
tarpaulins are now laid aside, and Gentlemen are taken in
(I like them in another employment, but not in this.) As
to the charge, and misapplication of the Money, and other
particulars of taking tarpaulins, for want of skill themselves that have command, &c. and so increase the charge
of the Navy, I would consider that.
Colonel Titus.] Whoever speaks against the management of affairs, has as easy a subject, as he would have a
hard one that speaks for it. A Physician that should talk
very learnedly of my disease, and tell me of my extravagances which brought me into it, and assure me that I
must die, would be very uncomfortable. Suppose I build
me a house, and I give my Steward money to buy bolts
and bars, and he go away with my money, and buy none;
shall I therefore take a resolution to have none, and expose my throat to be cut? Because I am angry with my
servants, shall I be angry with my security? I move
you for a day to consider the general State of the
Mr Love.] I would be informed what number of the
thirty ships you gave Money to build, the last Parliament, are built and launched, and of what dimensions they
are? In April last, they were in great haste for the Money
to buy timber, else the bark would not run. I would
know what Merchants are unpaid for hemp, and whether the Merchant-ships, that were added to the Navy
the last year, are paid, and in what Treasury the Money
that is not paid lies?
Mr Garroway.] I could have wished, that this present
State of the Nation had been done privately to our hands;
but I would have the Gentlemen know, that they are to
give satisfaction to all Questions debated; and no particulars, but the general State of the Nation, to be considered
Mr Seymour.] I take notice, that something particularly has been said which concerns me, in the employment I am in, as to Money. I have received 470,000l.
whereof 70,000 is in my hand, and the rest is actually laid
out upon the ships. If you had sooner begun your enquiry, you had been better satisfied. There has been
100,000l. for the Ordnance, &c. and some remains unpaid in the Exchequer.
Resolved, That this House will, on Thursday next, take into
consideration the State of the Kingdom, and how the Navy may
be made more useful for the defence thereof.
[In the Afternoon the Lords, at a Conference, agreed to the
Bill of Attainder against the Earl of Danby, with two Amendments only, to which the Commons agreed.]
Tuesday, April 15.
[Sir Thomas Stringer reports the search of the Lords Journal, in regard to the giving Copies of the Evidence against
them to the Lords in the Tower.]
Serjeant Ellis.] "Copies of the Evidence, &c." is
a thing that was never done by authority of the Lords;
and I do the more wonder at it, the Judges being there
present, that they were not advised with, &c. We ought,
in this case, to go to the Lords for a Conference, to acquaint them, that all your Evidence is discovered; a
thing of extraordinary ill consequence!
The Order was read out of the Lords Journal, [as follows:
"The Lord Chancellor let their Lordships know, that the
House had ordered, that the several Indictments found against
them by the Grand Jury, should be brought into the Lords
House by Certiorari; and that their Lordships may take Copies
of the Articles of Impeachment against them; and that they shall
have liberty to search and take out Copies of Records and Journals, in order to their defence."]
Mr Seymour.] You are moved, but I would have you
do nothing in it, as the case stands. In the last Parliament, there was art used to make a difference betwixt
you and the Lords, to frustrate the fruits of both your
good designs; and those that gave the occasion must
have a great deal to answer for. You have no title to
the Evidence the Lords have received—But as to what is
consequential, I would have no man refused taking just
means of defence, and the Lords have ordered no more.
Those that are Judges, never know the Evidence till the
parties are before them, and that they know. Is that
Evidence in their Journal? Is it Justice, that the Lords
can deny their Members a title to their Journal, till they
are convicted? Neither is your Evidence concerned;
your concern in it is but consequential and remote. I
see not how you can take exceptions at it. They have
authority "to search the Journals for their defence,"
and it is a method of Justice you will not deny any of
your Members for their justification. I would therefore
take no notice of it.
Sir Francis Winnington.] As for the Justice of the thing,
there are some crimes and punishments, as to other persons—The Committee have prepared Articles against the
Lords; and they represent to you what is for your service. There is hardly such a precedent to be found,
that such as are accused of High Treason, should have a
copy of the Evidence against them—Orders for Certiorari's
and that the Lords should have copies of the Impeachment,
&c. and have resort to the Journal! I would know, whether a man indicted for Treason can have a copy of his
Indictment? It is always denied, and not to be justified,
for a man must plead not guilty; there is no justification
of Treason. If any thing arises in point of Law, they
may have Counsel. But for the Court to take care of
the defence of the prisoner, I never heard of it before.
The five Lords may as well have copies of our Evidence,
if they desire it, by the same reason. In civil causes, they
may have recourse to the Record; but to have a copy of
Evidence is without any Precedent. Such an indulgence
to these Lords is the greatest conspiracy that ever was,
never used in common causes. For them to produce an
authentic copy of the Evidence against them, and have
the sanction of that Court for this; it was never heard of
before, and is very irregular.
Colonel Birch.] In this I would do as wise men use
to do; that is, when we cannot help a thing, to let it alone. I would prevent this for the future, for the Lords
have fully the matter before them. But enter it upon
your Books, to prevent it for the future.
Sir Thomas Lee.] If you enter it upon your Books,
and do nothing upon it, as in the Duke of Buckingham's
case, the Lords will lay that upon you. I would therefore enter the thing, and your Proceedings upon it, and
it may prevent the Lords doing it for the future.
The farther Debate was adjourned to this day sevennight.
Wednesday, April 16.
A Message from the Lords, "That the Earl of Danby having
[last night] rendered himself to the Gentleman-Usher of the
Black Rod, their Lordships have sent him to the Tower."
Another Message, "That the five Lords in the Tower, have all,
in person, brought their Answers to the Articles of Impeachment,
[except Lord Bellasis
(fn. 1) ;] and their Lordships have sent the originals to this House, &c."
Mr Sacheverell.] I doubt whether Lord Bellasis having
not been arraigned as the rest of the Lords, this can be
properly an Answer, &c.
Mr Garroway.] I think this is well moved, to refer this
to the secret Committee. I have heard, that if Lord
Bellasis be not arraigned, he can never come to Tryal. I
would have the Committee search the Lords Books, to see
how the matter stands, and then you may advise farther.
Sir Thomas Lee.] I would not refer it barely to the
Committee of Secrecy, where most are not Lawyers:
I would rather adjourn the Debate till to-morrow, and
give notice, by your Serjeant, to the Lawyers, &c. to attend. I think that will be more for your service, and in
the mean time you may have the Journal searched. The
Committee of Secrecy have a great deal upon their hands.
Sir William Coventry.] The Committee of Secrecy have
been your principal guides in this matter; having prepared the Impeachment, they may take it out of the
Lords Books, as an account of the Impeachment, &c.
and when that is done, it will be proper for your Debate.
Without fitting materials for the Debate, you may take
resolutions which may have mistakes in them.
Mr Trenchard.] This being matter of secrecy, and not
matter of Law, you may refer it to the Committee, &c.
It is but barely the Question, whether five Lords being
impeached, and but four arraigned, you should accept
Lord Bellasis's Answer, without his Arraignment?
Mr Sacheverell.] The matter is bigger than it seems to
be at the present; for no man can show, where any person has been accused capitally, that he has been admitted
to answer by Attorney. In your Articles, you set out,
"That all the Lords are in custody, &c."And this
Lord does not appear to be arraigned. This very error
may vitiate the whole matter. I would have the thing
debated in the House; therefore I am against reading
the Pleas of the five Lords now sent you from the
Lords House; for if you read them, they must be entered into the Journal, and so the Plea by consequence will
be admitted with all its errors.
The Debate was adjourned till to-morrow.
Thursday, April 17.
[On disbanding the Army.]
Sir William Coventry.] I am for placing the Money
[for disbanding the Army,] in the Exchequer. The
failure, when you placed the Money there before, was
not the miscarriage of the Exchequer, but it was for want
of Commissioners of your own to receive the Money out
of the Exchequer; it could not else have miscarried before. What moves me to this is, because we had a distrust of the Earl of Danby before; now he is lodged in
another place, to your satisfaction; and for this reason,
now the King removes from employment those you have
a jealousy of, that we may return our confidence in him
again. Therefore I am for the Exchequer.
Mr Secretary Coventry.] I have often heard, that the
Government of London was made in conformity to the
Kingdom of England, but not the Kingdom of England
conformable to the Government of London; the Lord
Mayor representing the King, the Court of Aldermen,
the House of Lords, and the Common Council the
House of Commons. And there is the same reason that
the Chamber of London should not give patterns nor examples to the Kingdom, in having this Money deposited
there. The last Parliament would not place the disbanding Money, &c. in the Exchequer, for no other reason, than because they could not confide in the Lord
Treasurer—You had a diffidence in him that did govern
the Exchequer. Suppose you apprehended that the Benches of Judges were ill furnished, would you not go to
Law again if they were well filled? Consider the importance to the Kingdom, that the Army should be disbanded, and the reputation of it, and at whose door it lies.
Now you broke upon this very point, the last Parliament.
Let it not lie at your door, the not disbanding the Army
now. Let us put off this fear of the Army, and put the
Money into unblemished hands. Let it not lie at our
Sir Francis Russel.] How can we answer it to the
Country, if you put this Money into the Chamberlain of
London's hands, and he break? You can have no such security for it, as the Exchequer.
Sir John Hotham.] I was against placing it in the Exchequer, but now I am much more; because we have
been cheated there. And though the jealousy of Lord
Danby be removed, yet think you there are not more about the King, to give you jealousy, &c.? Have they
not rode all upon one horse? When an Act of State has
been opposed to an Act of Parliament, men dare still offer at it. Yesterday you passed over those who broke
your Act, in keeping themselves in arms after the Act
had passed for disbanding the Army, without any punishment or brand upon them. I cannot believe, but that
those who advised the keeping up that Army will yet
fetch the Money out of the Exchequer, and may be made
useful to force it out of the Exchequer. When you
are made so poor that you cannot creep, then the Army
will pay itself. I hope it will never be said we shall be
cheated again, as if both the young Members, and the
old, had a right to be cheated. Therefore I am against
placing the Money in the Exchequer.
Sir Herbert Croft.] This Debate is as warm, as if
there was a design to raise a difference betwixt the King
and his people.—(Taken down to Order by Sir Harbottle
Grimstone, who took offence at his words.) He goes on and
says, I am very sorry that I have made so ill a step as to
give offence to the House, or any particular person here.
I supposed that the sense of Hotham's words was a reflection upon the young Members. I say, it is the only
interest of the King and the Nation to have the same concerns. I said, "That this Debate was warmly carried
on," and putting this Money into the Chamber of
London, is setting the King's Exchequer different from
our Exchequer, as if his concerns and ours had no coherence. The interest of the nation is not maintained without a mutual correspondence and concurrence of King
Sir John Hotham.] To Order. I suppose Croft did
not hear me, or did not mind me. I said, "There were
idle rumours, from idle persons, of the young Gentlemen
of the House, &c." but as for the heat, &c. whoever
meddles with as much gunpowder as will serve an Army,
may be warm.
Mr Sacheverell.] I blame no Gentleman that differs
from me in opinion. I hope he will give me the same
freedom that I shall give him. It is urged, as a thing
desired both by the King and people, that the Army
should be disbanded. If so, why should any Gentleman
be against it for the same end? In the Exchequer
the Money has not been employed, &c. in the Chamber of London it has. It is said by Secretary Coventry,
"That the City is a representation of the Government,
&c. and that the Chamber of London should not give
patterns and examples to the Kingdom." But that is a
great mistake. I hope it is no fault in the State to imitate
the credit and trust of the City of London. There is a
difference betwixt giving the King other Money, and
this, to free ourselves from a cheat. We have had this
done in Edw. IV's time, and no exception taken at it
then; and every County of England had their own Treasurer, in the nature of the Chamber of London. In King
James's time there were Commissioners, &c. but what
effect had it? No more than we had in the Exchequer
now; the Money came into their hands. But what works
with me, is, that if the chief Minister should advise this
Money for other uses, what Commissioners of the Treasury dare do the contrary? The Exchequer, you see,
has done its duty, but other Officers have not; and it is
no reflection upon the Exchequer to place it in other
hands, having been done in all Kings ages; therefore I
am for the Chamber of London.
Sir Thomas Meres.] The Treasury is better managed
by Commissioners, than by a Lord Treasurer, especially
when the Lord Treasurer is the sole manager of affairs of
State. When these Commissioners have committed a
fault, we will trust them no more; but consider where
you were deceived; mend the error where it went. It
went amiss that the Commissioners were not to take the
Money out of the Exchequer, who were not to part with
it for any other end than the Act designed it for. Pass
your Bill so, with power to the Commissioners, and I
cannot believe they will part with the Money till the
thing be well done.
Resolved, That the Supply, granted to his Majesty, for disbanding the Army, shall be paid into the Exchequer, [191 to 131.]
Mr Hampden reports from the Committee, appointed to inspect
the Lords Journal, the Proceedings as to the Appearance and Arraignment of the five Lords, &c. which sec at large in the Journal.
Mr Seymour.] Whether these Impeachments of the
Lords may be voided by Writs of Error, one Lord having answered by Attorney, is the subject of your Debate.
Matters of Impeachment criminal, and for Misdemeanor
only, are very different. In Misdemeanor the Lords are
Tryers and Judges. In Criminal they are not, till the
Lord Steward is chosen. The parties are not arraigned,
till they are brought before the Lord Steward, and hold
up their hands, &c. Suppose any of these Lords should
die, could you not then proceed? Is it not the same case,
if there be a disability of appearing? If upon the Arraignment Lord Bellasis comes in, it is sufficient, and
there is no Error in the Proceedings.
Mr Sacheverell.] I think this case is like one that had
an effect you would not have. It was that of Roger
Mortimer, who was not brought to the Bar, and charged;
and he had his whole Attainder reversed (for Error) and
all his family restored, and he acquitted (fn. 2) . If you will
make another Precedent, you may.
Serjeant Maynard.] Clearly, if a man be so sick, that
he cannot come to the Bar to be arraigned, he can never
have judgment of death if he be indicted, and if he be
not arraigned where the Common Law implies him in
person, he must appear in person. It is strange for
Lord Bellasis to think his life in question, and he not
come to answer his charge. But sometimes the Court
swears Physicians, to give the Court an account of the
person, whether he be in condition to appear. It is true,
as is said, "That they are always tried by a Lord Steward." But their Charge, their Answer, and their Arraignment are before the Lord Steward comes, &c. Lord
Bellasis is not yet arraigned. I have known, that, when
a person could not come, he has been brought in a chair
to the Bar, to answer. It is clearly erroneous in the
proceeding, and an acquittal of the person, though guilty, if he come not to the Bar, &c.
Sir Francis Winnington.] I know it is the rule of Law,
that when a man is capitally accused, nay, where the crime
will amount to corporal punishment, he must appear in
propriâ personâ, &c. He cannot get an Attorney to be
hanged for him, or punished for him. Lord Bellasis, because he cannot come in person, has sent his Plea in writing, and the Lords are careful to send all the Lords Pleas
to you. In Law, there are several offences. The Treason
of one man is not the Treason of another. In the case of
the five Lords impeached, if this pass, that one is sick, and
not arraigned, they will never come to judgment. There
are Precedents, that men have been brought in their beds
to the Bar, in propriâ personâ. I take the Proceedings, &c.
to be altogether erroneous, to take this Lord's Plea by
Attorney; and a Writ of Error may void the Attainder.
As to the matter of Arraignment, it is always in Court,
before the Lord Steward has his Commission. If he
have a Pardon, the Lord Steward sits not. The Lord
Steward never sits till issue be joined. The Report from
the Lords Journal is, "That there is an Order to assign
them Counsel." I would know, when ever there was an
Indictment for a capital offence, that ever the Court assigned Counsel before matter of Law did arise? It may be
they may have Counsel by connivance; but not by Order of Court. This proceeding being irregular, the
Question is, what is to be done upon it? If all appear
personally but Lord Bellasis, then you divulge all your
Evidence, and so must try Lord Bellasis over again.
Therefore it is proper, either by Message, or what other
way you please, to acquaint the Lords with it, that we
may come clearly to the fact, and have Justice.
Serjeant Maynard.] Counsel is never assigned, but at
the allegation of the party indicted, that there is matter
of Law in his case, and the Counsel, at the peril of his
head, cannot advise upon matter of fact; for then he is an
adviser of Treason. Advice is only for "matter of
form," but the Counsel cannot give instruction "in point
of fact," for their defence of their Treason.
Mr Hampden.] It is my duty to inform you, that the
Lords, upon their Book, &c. have assigned Counsel to
matter of Law, and not of Fact. But there is no assignation made to what point of Law; and so Lord Bellasis is
assigned Sir Thomas Skipwith and Mr Saunders, as the
other Lords had theirs upon the same request.
Sir Francis Winnington.] Some Quæstio juris must arise
upon the defence of the prisoner; upon assignment of
Counsel, but not before Tryal; and, I think, the Lords,
in assigning them Counsel, have done irregularly.
Serjeant Ellis.] As to the Tryal of Commoners, they
cannot have Counsel, &c. but to matter of Law, and
they are to tell the Court to what Point of Law, &c.
When that is told in general, the Court gives them that
part of the Indictment, and with the Copy of it assigns
them Counsel to argue it. I doubt you will find precedents that the Lords have allowed Counsel to draw an Answer to an Impeachment, as in Lord Strafford's case; and
Counsel to be by, at the very Tryal. Counsel was heard to
the point of multiplying Treasons, &c. As to Lord Bellasis's case, if you admit this Answer by Attorney to be an
Answer, it may so fall out, as to be none at all. If it fall
out that a man be in so much danger of death, &c. you
must put off his Tryal. The first step to Tryal is to arraign, and he cannot plead, but in person, in both
criminal and capital causes. A man must receive an
outlawry in person. Sir Timothy Reed was ninety years of
age, and he was outlawed upon the default of repairing
a highway; and he was brought in person to reverse the
outlawry. This was but an ordinary case, and he was
brought into Court in a litter, upon mens shoulders. In
the case of Roger Mortimer, who neither appeared to answer nor had Arraignment, the Attainder was repealed—
but he never appeared at all—If you proceed against the
four Lords, and not against Lord Bellasis, that will be no
Error at all; but see where the case is; your Evidence is
joint, and so interwoven with that against the rest of the
Lords, that, if it be against the four, it is against him
also. If Lord Bellasis appears, then you must go over
all again, and your Evidence will be divulged before he
be tryed. I would therefore go to the Lords, to represent to them, that their Court should be a precedent to
all Courts, and desire their Lordships that Lord Bellesis may appear in person, &c. and make Answer.
Mr Sollicitor Finch.] I propose it to you, whether a
Conference with the Lords in this matter will not retard
the Tryals, &c. and not expedite them. I agree that a person arraigned must plead in proper person, and suffer in
person; but whether this be Arraignment, is another
Question. Every man must be arraigned in the Court
he is tryed in. He does not here hold up his hand at the
Bar. He has only given in his Answer, what he will insist upon. Lord Bellasis cannot be tryed without personal
appearance; and when the Lord Steward is appointed,
then he must hold up his hand at the Bar. In point of
Error, you may proceed against the other four Lords without Lord Bellasis. An Indictment of twenty for one fact,
is of several men, and they may have twenty Juries, a
several Record against every one of them, and several
Pleas. In point of prudence, I can say nothing to that,
how far the Evidence against the other four will be divulged to your prejudice, who are prosecutors. But why
should you not prepare your Evidence to proceed upon
them all? The Court will not force you to hasty proceedings; but by that time your Evidence is ready, the
Lords may force him to appear. I move, therefore,
that you will cause Evidence to be ready for Tryal, &c.
Serjeant Mayuard.] I would not have the House misled in matter of Law. I would have Finch answer me,
whether Lord Bellasis must not plead before he comes to be
tryed by the Lord Steward? The Process is not to be tryed, but to plead guilty, or not guilty, and issue must be
joined, before he comes to the Lord Steward. Arraignment is only his being brought to the Bar, to confess or
deny, &c. If you try Lord Bellasis alone, all your Evidence will be divulged before, in the Tryal of the four
Lords. If you give liberty to persons that are to be tryed to know what is proved against them, and then to
give answer, they will have more privilege to destroy Religion and the Government, than they have in the Tryal
for a two-penny trifle.
Mr Hampden.] I pretend not to the knowlege of the
Law, but I may judge a little of things, by reason. If
you consider what the Arraignment is in the Lords, &c.
you may easily know the manner of Process. You are
as a Grand Jury; and the Lords are in the nature of a
Jury and Judges. The Indictment is read to the Lords,
the prisoners, and they are to say guilty, or not guilty.
But instead of that, the Lords have given them time to
put in their Plea. But when the prisoners come again,
they come in the nature of being before a Jury: The Indictment is then repeated; here is your charge, and there
is your Answer. Then comes the Question, Whether it be
a good Plea or not? And so you are past the Arraignment.
Now the Question before you is, "Whether in Parliament
they ought to appear in proper persons, &c." The objection is great. Those that have not been called to answer
—Whether that is not a sufficient process, being called to
answer? In the case of Cromwell Earl of Essex (in Hen.
VIII.) he sent to advise with the Judges, "Whether an
Attainder could not be in Parliament, and the person not
called to answer his charge?" The Judges said, "That
the Parliament was an high and honourable Court, and
would do justly, and that it was a Parliament-case, and
they could give no Answer to it."
Serjeant Ellis.] I would gladly know what to do in
this case. If you say that Lord Bellasis's is no Answer,
then you ask whether he must not answer in person;
and then you cannot reply to it. If the Lords take it for
an Answer, and you take it for none, then the Lords and
we differ in the matter: Cromwell's case, in Hen. VIII. was
of an Attainder by way of Bill. The Question was upon
an Act of Parliament, against a man never called to
answer his charge. The Judges said, "They hoped the
Parliament would never do it;" and Cromwell was the
first man that suffered by Act of Attainder who was never
brought to answer. I think this of Lord Bellasis is no
Sir William Pulteney.] The Question is, "Whether an
Answer upon such a disability, &c. be sufficient? &c."
Certainly it is no legal binding Answer, and certainly
no Judgment can be upon it but by Bill, &c. in case he
come not to answer, &c. As for this Answer, it is impossible it can be an Answer. When this Lord is brought
to the Bar, he may plead what he pleases; he may vary
from this, and put in another Plea, and this will be but
a piece of waste Parchment. I would desire a Conference
with the Lords, and let them know, that this is no legal
nor binding Plea, and they can give no judgment upon
it, but by Bill.
Mr Powle.] I acknowlege I am unprepared to speak to
this Question; but what occurs to me, I shall present
you. I agree, that no man can be tryed, but in proper
person, and so this is Arraignment at Law, &c. But in
Parliament, the Plea being by writing, there may be a
difference, &c. When the Plea is drawn, and the Party's
hand to it, it may stand; but when he pleads by word of
mouth, and in proper person; there is so great a distinction between parliamentary proceedings, and those of inferior Courts, that it will much difference the case. Why
this Plea will not do, with his hand put to it, I am yet to
seek. No man absent can be tryed for his life. In the
precedent, now cited, of Lord Cromwell, &c. there was a
particular Bill of Attainder that condemned him, and he
was never brought to Tryal. In the case of Roger Mortimer, in Edw. III. he was judged and condemned by the
Lords, and never brought to say any thing in his defence (fn. 3) .
This was so much against natural Justice, as well as
course of Parliament, that it was a sufficient ground to
reverse that Judgment. There are but these two precedents
of persons condemned unheard, and I hope there will never be more. I make a great distinction betwixt an Answer subscribed, that they will stick by, in writing, and a
bare verbal Answer.
Sir Thomas Meres.] The Order of the Lords is, "That
the five Lords shall send in their Answer." I speak it, to
show that their Answer may come by another hand. I
desire you will see farther, whether Lord Strafford was
not arraigned before the Lord Steward.
Mr Hampden.] The four Lords Answers being called for
in the Lords House, and not come, they were sent for
in person; but Lord Bellasis's Answer being in writing,
he was not sent for, but his writing accepted by the
Mr Seymour.] I shall offer something as to method.
This relating to the Lords judicature, I would be tender,
if the nature of the thing would bear it. Usage of Parliament is Law of Parliament, and what is right, is right to
each House. You cannot be too cautious in taking away
power from them that will never want will to disturb the
public Peace. I would have one instance given, that ever
any man was arraigned before the Peers sitting in Parliament; (which is no proper Court to judge them.) The
Chancellor says, "The Impeachment is brought up, and
they are ordered a Copy of it, and they require time to
give in their Answer, &c." As long as the Chancellor is in
the Chair, the Lords are in their Court of Parliament. In
criminal matters, &c. the Lords are in the nature of a Jury, not of a House of Lords, and they are Judges of matters of fact, and possibly of matters of Law. I would refer
this to a Committee, to enquire into the manner of proceeding in these cases; and, if it appear that the Lords
have committed Errors in their proceedings, they will go
in another method; and till then, you are not ripe to take
notice it to the Lords.
Mr Garroway.] What would you name a Committee
for, when Gentlemen have all declared their opinions,
"That if this way of proceeding be admitted, &c. the
Lords may have Writs of Error to destroy all your proceedings against them?" As I am informed, when Lords
are tried in full Parliament, there is no Lord Steward.
Serjeant Ellis.] Whether the Lords are arraigned again,
or whether there is to be a High Steward or not, is not
the Question. But this is already their Arraignment,
and this is their Plea. If they are arraigned again,
they are asked, what they have to say? And they may
put in a new Answer, and so all your time may be lost
—But they proceed upon this Answer, from which they
Sir Francis Winnington.] The Reporter said, "That, as
soon as the Answers were read in the Lords House, they
sent them to you." The Lords have not yet entered
their Pleas to be recorded in their Court, and so they are
not conclusive. If they be entered, then they are sent
down to you, to know whether you will reply, or demur. I doubt that Lord Bellasis will not agree that to
be his final Plea; for he has in effect answered nothing;
so that the Lords have not sent them to you to reply. In
Tryals in interval of Parliament, and in pleno Parliamento,
the Clerk of the Crown says, "You have pleaded so,
and been indicted so, and you put yourself upon your
Peers." If any of the Lords should say, "I wave my
Plea," what a condition are the Commons then in, for
they cannot come provided to prosecute? But since the
Lords have not entered these Pleas as final Pleas, you
may consider of it, and if the Lords have been irregular
in their proceedings, you may desire a Conference, and
say, "That Lord Bellasis has not appeared, and that the
matter will be erroneous if we proceed." It may be the
five Lords have perplexed this matter, and may say, "Lord
Bellasis is sick, and we will plead, and so the Evidence
will be piece-meal." First, Lord Bellasis does not legally
appear, and next, as our Charge is intire, so the Lords
may not answer it by piece-meal.
Ordered, That it be referred to the Committee of Secrecy to
examine the manner and ways of proceedings in Parliament, about Lords being arraigned, and whether a Lord can be arraigned
without coming in person, &c.
[Adjourned till Monday.]