Debates in 1679
May 15th-18th

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History of Parliament Trust

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Anchitell Grey

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1769

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'Debates in 1679: May 15th-18th', Grey's Debates of the House of Commons: volume 7 (1769), pp. 278-303. URL: http://british-history.ac.uk/report.aspx?compid=40455 Date accessed: 01 August 2014.


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Thursday, May 15.

Sir John Trevor reports, from the Committee, appointed to join with the Committee of Lords, &c. That the Committee had made two Propositions to the Committee of Lords: [First, That they did desire to see the Commission of the Lord High Steward, and the Commissions to former Lords High Stewards.

Secondly, That they did desire to know, what Resolutions had been taken about the Lords Spiritual being present or absent at the Tryals of the Lords impeached.

To the first Proposition, the Lords of the Committee produced Copies of the Commissions to the Lords Stewards, for the several Tryals of the Lord Morley, and the Lord Cornwallis: But those Tryals were out of Parliament. Next, they produced the Copy of the Commission for the Tryal of the Earl of Pembroke, for Murder; which Tryal was before the Peers in Parliament, and so differed from the two former Commissions.

The Lords did farther produce a Copy of the Commission passed under the Great Seal, for the Tryal of Thomas Earl of Danby, and also a form of the Commission for the Tryal of the five other Lords impeached—And farther declared to the Committee, "That a Lord High Steward was made pro hâ vice only: That notwithstanding the making of a Lord High Steward, the Court remained the same, and was not thereby altered, but still remained the Court of Peers in Parliament: That the Lord High Steward was but as a Speaker, or Chairman, for the more orderly proceedings at the Tryals."

As to the second Proposition, the Lords communicated to the Committee a Resolution of the House of Peers, in hæc verba:

"Die Martis, 13 Maii, 1679.

"Resolved, By the Lords Spiritual and Temporal, in Parliament assembled, That the Lords Spiritual have a Right to stay in Court in capital Cases, till such time as Judgment of Death comes to be pronounced."

The Lords explained themselves, "That the meaning of the above Resolution is, That the Lords Spiritual have a Right to stay and sit in Court, till the Court proceed to the Vote of Guilty, or Not guilty?"

The second Proposition, being a matter of great weight and consideration, the Committee of the Commons had commanded him to report it to the House, in order to receive their directions for their farther Proceedings. Journal of the Day.]

[Debate.]

Sir Thomas Clarges.] It is necessary that you leave something upon your Books of what the Lords have resolved, viz. "That the Lords may proceed to Tryal upon Impeachments without a Lord High Steward."

Sir William Coventry.] I would have the whole settlement of the matter entered into the Journal, under one draught and regulation of it, for posterity to be guided by.

Sir Robert Howard.] I hear that the Lords are going to strike at any method of Proceeding in Impeachments of the House of Commons. Their first Vote is, "That the Bishops shall not stay in Court at any sentence of Guilty, or Not guilty, &c." This is a dark Text, and should have a Commentary. This does nothing to the case of Lord Danby; it seems, they take not voting to the validity, or invalidity of his Pardon, to be life or death. This gives occasion to the Lords Spiritual to judge any Pardon good. If the Pardon be not a good Plea, the charge is confessed, and there remains nothing but execution to be demanded, and the Spiritual Lords call this nothing but matter of Law. Now their Canons are turned upon themselves. I have heard say, that if a Bishop kills a man, he is to have one Tryal in Parliament-time, and another out of Parliament; he is to be tryed by twelve men of the neighbourhood. If this be so, no man shall be tryed, but by his Peers, if Bishops sit. This is taken generally so far for granted, that Mr Selden says, "They sit as Barons in Parliament, as Jure Regis, and they are to withdraw from the Tryals." If they were Peers in Parliament, it would be in their Blood and Generation, and they must sit to appear upon Blood and Generation. This seems, that they who exclude themselves from judging in matters of Blood, by Canons and all Gospel business, have some reservation upon this, to show an object of kindness, rather than Justice. Then see the state of this case. Say they, "It is Guilty, or Not guilty." But in the Plea of his Pardon, it is nothing; it is but only a point of Law. If that be over-ruled, he is left to come over again to Tryal. In short, that they who should avoid Seats of Blood, should press this in particulars that they deny in the universal, is strange. If in a surreptitious Pardon the Bishops come to help men, the Law of England is in the power of one body of men, and the Statute 25 Edw.III. will be wholly voided, if the Party be so well instructed as to plead a Pardon. I would therefore give the Committee instructions, wholly to disagree with the Lords, as an Error of Judgment, if the Bishops sit, and so the Judgment may be reversed.

Sir Thomas Meres, to what Howard says.] The Bishops press not this; they leave it to the Lords. I know not that the Bishops said one word in this matter. Now, when the Lords judge, whether this Pardon be good, or not, there it is you would have it proposed, whether the Bishops shall withdraw then? I conceive, that the Lords take it, as you do, that if the Pardon be good, or bad, it is decisive, whether life or death. The same reason carries it by their Canons. They are not to sit, for it is life or death. I believe you will have the thing explained to-morrow, and carry the point.

Sir William Harbord.] I desire not to be governed by the Canons of the Church, but by the Laws of England, When you sent up your Message to imprison Lord Danby, the Bishops were very instrumental to save him from being committed. I appeal, if they voted not against the Law of England? The thing must be so settled, that posterity may be safe. But suppose the Bishops exclude themselves, as is said; if they judge to Misdemeanor, if that man lose his life by it, or be saved, they judge in matter of fact. If the Lords come to some determination, &c. we may be safe. I would set this matter without dispute.

Mr Sacheverell.] Consider a little the state of the case. It is a great point, and I would settle it so, as never to trouble the House more. It is all one to me whether they proceed in any part, or the whole. They have power to acquit, and not condemn. I say, the Bishops ought not to be present by the Law of England. If the offences of Lord Danby turn to Misdemeanor, it is as dangerous as the Judgment itself. I would turn it thus, "That in Capital Cases the Lords Spiritual have no Vote at all, in Proceedings of Impeachment from the House of Commons."

Serjeant Maynard.] I look upon the whole matter to be upon the old string, viz. to keep the five Lords from Tryal. A great man may be pardoned toties quoties as he can get a Pardon, let the offences be ever so great, if this Pardon be good. The matter is now the Bishops, &c. If their meaning be to deliver their Opinion, "That this is a good Pardon, or no," it is all one, whether "Guilty, or Not guilty," of the charge. Now, was it ever seen that a Judge has power of one part of the Law, and not the other? To do Justice on one side, and not on the other? To save, and not to condemn? The main end of all these things looks to another purpose. They may say, he shall be acquitted, but not condemned, and so all the Justice of the Lords is shut up against offenders. I would therefore have an express Declaration from the Lords, "Whether the Bishops shall judge in Lord Danby's Pardon?" Be pleased therefore to appoint your Committee to offer their Reasons for a farther explanation of this Vote, to the Lords, and aboveboard. I did hear that one Lord should say, "That he was for the Bishops voting, &c. because they would acquit Lord Danby."

Sir Robert Carr.] I will speak to matter of fact only. Your Committee finding only, that the Bishops should stay in Court till the Temporal Lords voted, Guilty, or Not guilty, desired to know, "Whether their Judgment upon Lord Danby's Pardon was taken for Guilty, or Not guilty?" One of the Lords said, "He was for the Bishops voting in the Pardon because they were for Lord Danby."

Sir Thomas Clarges.] For aught we know, the five Lords have five Pardons. The Law says, "That the King can do no ministerial Act." But the King took the Seal from the Chancellor and sealed Danby's Pardon. The five Lords may, at the Bar, produce such Pardons as this. It is plain, that this Judgment of the Bishops is a Judgment in part, to acquit and not condemn, so that all this Proceeding upon the Pardon will be coram non judice. So that if the Bishops will take all this upon their shoulders to obstruct the Justice of the Nation, let them bear it themselves.

Sir Thomas Lee.] Two or three things have startled me much. I find this is a novel thing. In Lord Strafford's case, there was no Question of the Right of the Bishops, and this matter never came in question. The Lords did commit Danby early in this Parliament, and said, "It was fit a new Parliament should correct the Error of the last." This may prove an Error in the proceeding, if the Bishops judge the Pardon, and the next Parliament may restore Danby. As long as we keep old methods of proceedings, there is no harm. The Lords say, "the Bishops may be in Court," but say not, so long, and no longer— In all cases, as they call themselves "the Great Court," they will make what Rules they please, to be observed. But those that are Judges of methods, by the same reason may be Judges of life and death, and dispense with their own Canons. I would have this matter stay, till the Kingdom is at better leisure to dispute it. If the Lords had said, "That the Bishops shall withdraw, or stay so long, and no longer," yet I cannot be satisfied, if they shall say, "The Bishops shall withdraw for this time, and may resume it in another." I would not make one step till this matter be adjusted, and go on with no Tryals.

Sir William Coventry.] You have been told what has been done in the case of Lord Strafford. There was a Committee then to consider, whether to try him in the Lords House; for said the Lords, "The Bishops will be absent, and the Barons may sit upon their Benches." For this that is the proper Question before you was, "this stay," stirred by your Committee. One or two of the Lords said, "They would move their House in it." I see no fruit of voting any thing, till you see how the Lords will proceed upon it, and possibly you may have satisfaction from the Lords, and you may avoid doing it. It is necessary only to have your Committee at liberty to urge this to the Lords to-morrow.

Sir Francis Winnington.] The Debate now is the Jurisdiction of the Lords in Proceeding, &c. I am unwilling to give offence to the Lords, or to let them have a Jurisdiction unusual. When the Question was proposed, "Whether the Bishops should withdraw," it was Answered, "They should, at the Vote of Guilty, or Not guilty." But now, so far as the thing stands, we must look to our Rights in Proceedings. If that be a reason for their stay, that the Bishops may countenance the Pardon, it is in vain to proceed in any matters of Parliament, till that be settled. I will not enter into the Debate, how far the Bishops may be present in point of Blood. I propose this as to matter of Jurisdiction. If we see the Lords Proceedings not coherent to Law, we are as interested in that as the Lords are in the Judgment. When we think of the Chancellor's Speech, that this is the cogent time, that all is at stake, I did not think these difficulties would arise. Those who raise them will do it for the five Lords in the Tower, as well as this Lord. This, to my understanding, extends to all Pleas, Guilty or Not guilty, to life and death, "No:" But to pardon or not pardon, "Yes." But surely the Bishops are better versed in the Art of Disputing, than to stick to that. They will not judge what the life of a man depends upon, but to save him. If I knew their meaning, whether they would do this in all cases—Whether in a Pardon only, or where life and death is immediately judged. If we meet with this, it is our inheritance we have in the methods of the Court in their Proceedings, as this is of Judgment, and we may interest ourselves in it.

Mr Vaughan.] This thing is of that consequence, and one of the fatalest and most absurd things I ever saw. From Edw. III's time to the Tryal of Lord Pembroke (fn. 1) , the Bishops never sat in Capital Judgments, and they have formerly made a Declaration of Parliament, that they ought not to sit. The novelty of the thing makes me jealous, that it is for some particular end of their own. They are Judges for themselves in this matter, in the Lords House, and vote. If they were absent, you would have another account of it. They pretend to sit upon this Pardon of Lord Danby, and I pray God they sit not to pass Judgment upon their whole Function!

Mr Powle.] The House is possessed of the matter only, I will speak to the manner. If you dispute with the Lords about Rights and Privileges of their House, it will be dilatory, and I would not enter upon it now. This day this proposal was made to the Lords, and they seemed to intimate that they would move it. If it prove contrary to-morrow to your desire, then I would confer with the Lords about it. But if they tell you, "The Bishops will not meddle with it," you may then decline it. You may instruct your Committee to insist upon having a resolution from the Lords to-morrow. But for to-day, I would lay it aside.

Sir William Coventry.] If I had an intention to save the Lords in the Tower, I would contest with the Lords upon their Jurisdiction in this matter; but if you put it as it is moved, it will put an end to all things.

Sir Thomas Lee.] I do say, that, next to my fears of the Pope's Jurisdiction, I apprehend heightening the Lords Jurisdiction.

Mr Sacheverell.] If in this case Gentlemen take a little more liberty than ordinary, you may pardon them. If the Bishops tell you, "They will be absent," does that settle the Jurisdiction? Settle the point so that their voluntary withdrawing now does not entail their Jurisdiction upon you for ever.

Resolved, That it be given as an instruction to the Committee, &c. That they insist upon it, that the Lords Spiritual ought not to have any Vote in any Proceeding upon the Impeachments against the Lords in the Tower (fn. 2) .

The Bill to disable the Duke of York to inherit the Imperial Crown of this Realm, was called for, and read the first time (fn. 3) .

[Debate.]

Sir John Trevor.] First, consider, whether the Bill be drawn according to your Order, before you give it a second reading. You now are going to dispose of the most valuable thing in the World, the Crown of England. But I cannot consent to this Bill; it is not drawn according to your Order. This does not only disable the Duke from inheriting the Crown of England, but banishes him. The Parliament may dispose of the Crown, but cannot, without cause, banish him. I cannot consent to this Bill, but I would not throw it out, but let it lie upon the Table. Let Gentlemen consider well of it at this time; but I cannot consent to reading it a second time.

Sir Robert Peyton.] I move, that it may have a second reading in a full House on Saturday.

Mr Colt.] If you lay it aside without a day, you will give as great encouragement to Popery, as you have given discouragement on Sunday last; therefore I am for a second reading on Saturday.

Mr Powle.] This Bill is of great consideration, and Saturday is too soon for a second reading. If ever this Bill be put in execution, it will cause great disturbance in the Kingdom. If we be too hasty in it, both we and our posterity may repent it.

Sir Thomas Meres.] If you do any thing in this matter, put it off your hands. If you will not do this, do another thing. Something must be done.

The Bill was ordered to be read a second time, on Monday.

In the Afternoon

Counsel was heard to the affirming or annulling the Judgment given by the Judges in the Case of Sir Samuel Barnardiston, and the Sheriff of Suffolk, upon a false Return (fn. 4) .

Mr Pollexfen, Counsel for the Reversal of the Judgment (fn. 5) .] An Action upon the Case was brought upon a Writ directed to Mr Soames, High Sheriff of Suffolk, to elect a Knight of the Shire in the room of Sir Henry North, deceased. The Sheriff returned Sir Samuel Barnardiston duly elected, but caused a false Return also to be made of Lord Huntingtower and Barnardiston; which put Barnardiston to great charges. An Action upon the Case was brought against the Sheriff, &c. and Barnardiston had a Verdict and Damages, and a Judgment in the King's-Bench for the Plaintiff. A Writ of Error is brought to the Exchequer-Chamber, where, upon divers Arguments, the Judgments were reversed. Upon the whole matter, five Judges were for the Plaintiff, and six for the Defendant; Rainsford gave no opinion; so that against this Reversal is the complaint. What I am to show is the wrongful Reversal. I take it, by Rules of Law, that any man voluntarily, unjustly, maliciously, and without cause, being injured in a false Return, the party may have remedy by an Action upon the Case. It is impossible that two persons can be rightfully elected. For a man to be kept from the execution of an Office of the greatest Dignity, by a miscarriage of the Sheriff, and put to the trouble and charge of petitioning the House, surely this is a wrong sufficient: And this false Return was the Cause. Words, though otherwise not actionable, yet where they are to the reproach of a man in his Honour and Dignity, are so. This in the Case of a Parliament-man is much more a Cause of Action. If it be in the power of a Sheriff to make such false and undue Returns, it may be such a mischief and inconvenience as strikes at the being of Parliament. No sober man will venture that service, when he must try over his Election. This, if permitted, will deter all sober men from standing. This may take away the very being of Parliaments; if Sheriffs throughout England shall combine, there may be no Parliament, and their numbers are not so many, but they may possibly combine (and we know who makes Sheriffs.) Suppose popish Sheriffs, and they would return so many to make the House of their Religion, and Double Returns of the rest. Thus you may have a Parliament, and a legal Parliament too. This is a Judgment of so great consequence, that it deserves your consideration.

Sir Creswell Levens, against the Reversal.] We say, this Judgment was well reversed in the Exchequer Chamber, and it was ill given in the King's Bench; because never such a one was given before. We know we walk safely, when in the same steps that others have gone in before us. In Mr Neville's case, in 1655, he brought an Action that could not be maintained. He was elected, and omitted out of the Return, and that was removed into Parliament as an Action never brought before. This Action, when brought, the Judges were not capable to proceed in, as being to be tryed in Parliament only, and the Judges ought not to meddle with it, and would not presume to give such advice as should not be binding. In 3 Edw. III. Records, Fo. 18. & 19. an Information was against the Bishop of Winchester for absenting himself from the Lords House; the King's Bench was hasty in their Judgment—by original Action—Say the Judges, "How can the King maintain this Action?"—It is an injury to the whole Kingdom, and every man must sue him for his non-attendance, for he is not the King's Member. 1 Char. a Judgment was given in the King's Bench, and reversed by Writ of Error, because they had nothing to do with matters relating to the House of Commons. In the Statute of Hen. VI. if a Sheriff misbehave himself, there is a Penalty upon him, so much to the Party, and the King, &c. How unreasonable would it be, to desire an Act of Parliament for an Action of Debt, for goods sold ! If the King's Bench meddle with one Parliament-matter, they may bring in all. Suppose an Action be brought in the King's Bench, that the Person was unjustly cited to the Parlaiment for Breach of Privilege against a Member; or suppose an Action be brought against a Member for giving a Protection, whereby I have lost my debt; surely the determination of this is in Parliament, and not there. This Action cannot lie in this case, because the Sheriff has no other way, but by a Double Return, to excuse himself. They say, "That the Sheriff has power to give an Oath, and therefore has discrimination of who are Freeholders." But the Statute says not, "Whoever swears that he has 40s. a year, is a Freeholder," but "he who really has so." Suppose one swears "that he has 40s. a year," and another "that he has not 40s. year," or "that the Party has got it fraudulently," and the Sheriff has not time to make his Returns in this case, as in other Writs, for want of time to examine it—Should this be, there would be great disorder in Elections, and the Sheriff has not time of deliberation: Therefore, where the matter is doubtful, the Parliament is the proper place to decide it in. It did appear in this Election, that there was great sctutiny, and it was not carried by many voices. And must the Sheriff therefore hastily judge it? Here not a Return made to the House of Commons, and was it not the business, and is it not the business, of the House of Commons to decide it? The House of Commons has judged this Return, and given Judgment upon it, and the House found no fault with it. They determined the Election, and found not the Sheriff culpable nor blameable, and punished him not. This cannot be said to be an unlawful thing, when they had judged it lawful; and what is the Judgment of the House of Commons, is the Law of Elections. But what is said, "this Return was made falsly and maliciously," will not bear an Action —But there must be another ingredient—Suppose a tree shelters a man's house, and I cut it down, and his House is blown down, and he charges me with maliciously cutting it down— The last reason is in the manner of the Action: "He is kept out from sitting in the House, and put to charges, &c." I answer, he came not to sit here for his own benefit, but for the Kingdom's. At the same rate, every one of the Electors might bring an Action against the Sheriff. He has brought his Action against the Sheriff for keeping him out of the House, and for charges to get into the House. For this reason, I conceive that the Judgment was ill given in the King's Bench, and well reversed in the Exchequer Chamber.

Mr Holt, against the Reversal.] The Law gives no Action of the Case against a Judge; you cannot have an Action of the Case against a Grand Jury-man, for making or causing his neighbour to be indicted. This is done in a public, and not clandestine manner, in conspectu omnium, and the Law suffers no averment against his honesty and integrity. There is no profit in being a Member of Parliament; it is an Office of burden and attendance; there is no profit, and therefore no loss. A Justice of the Peace was called "an ass, a coxcomb, a buffle-headed Justice, &c." an Action of the Case was brought in the King's Bench, and it was a great Debate, &c. that an Action could not lie, because a Justice of the Peace has no profit by it, and therefore no loss. Lord Coke speaks of damnum sine injuriâ. Barnardiston might have chosen whether he would be a Member of Parliament, or no. It was his own inclination, and therefore there was no necessity. The Sheriff doubts the Election, and therefore makes a Double Return; and it cannot be said, "That the Sheriff does it falsly and maliciously," when he doubts, and no Action of the Case can be brought against him; it is not an Office, or Tally, or Profit, but voluntary, &c. I doubt, that the Return at Common Law is no Return. The Judges therefore must not take cognizance of the thing, of a Double Return, because the Parliament does it only. Suppose, as has been alleged, a Popish Parliament should be returned, (which God forbid !) Westminster-Hall cannot judge of that. In Elliot's Case, &c. because it touched or concerned the Parliament, though it was a Battery, the Judgment was reversed in the House of Lords; and better a cause of this nature should be utterly lost, than the Privilege of Parliament invaded.

Mr Pollexfen.] The first Objection is, "That no such Action was ever brought." But we find such new contrivances, that there must be new Actions for remedy; as often as new Cases arise. There were always Writs framed for Actions of the Case, that the people might not say, that the Law was defective. In Jones's and Bulstrode's Reports, there is an Action of the Case for accusing a man wrongfully of Treason. There was lately an Action of the Case brought for seducing a girl to get her hair to make perriwigs, which is no Felony. The Case of buying and selling Negroes. New Actions must be brought for new cheats and tricks. I cannot say how old Double Returns in Parliament are; but I have heard a Parliament-man say, "That there have been more, in twenty years last past, than in all the world before." Suppose, in the Ecclesiastical Court, an Apparitor, or Summoner, returns a Person summoned, that he has not summoned, the Law judges it, though it be in another Court, and if the Party be damaged, he has an Action upon the Case. As for Sir John Elliot's case, &c. that was for matters in Parliament; that was for words against the King, and laying hands upon the Speaker. But admitting that was in Parliament, is this case of Barnardiston a matter of Right in Parliament, of liberty of Speech? —The Return is not into Parliament: I take it, that gives a difference (Dyer 168.) Colonel King exhibited a Petition against Sir Edward Lake at the Committee of Grievances, which set forth Misdemeanors, &c. Afterwards, an Action was brought against King, for a scandalous Petition, &c. Though this was in Parliament, yet it concerning not Members of Parliament, it was judged for the Plaintiff, because he could not justify the printing of his Petition. As for that of 3 Edw. III, it makes not one way nor other. As to the Statute of Hen. VI. objected, &c. it is frequent, that where there is remedy by Statute Law, there is remedy at Common Law too, as in a multitude of Cases.

Sir Creswell Levens.] In Smith's and Crashaw's Case there was an Action upon the Case brought for indicting a man for High Treason, and Felony, both Capital. It cost three years time before Judgment was got. But I challenge any man to show me a Case of an Action brought for any matter depending in Parliament. In the Case of Sir Edward Lake, and Colonel King, an Action was brought for Papers delivered to Parliament-men at the door, which were Libels, &c. But what relates that Case to this, which was a false Return in the Parliament House? This Petition was but a Paper of information of his Case delivered to Parliament-men. It may as well be objected, that 40s. a year for a Freehold, is too little to make him an Elector, as that the Penalty of the Statute is too little for a false Return. The Courts of Westminster-Hall cannot alter the Law. It is for the Parliament to do it; and shall Privilege of Parliament be controuled by Westminster-Hall? If there be inconvenience in it, you are the judges of it. In the case of Lake and King, Lake had printed the Petition before he presented it to Parliament, but King could not have brought his Action after it had been depending. Another Action was brought by Lake against King, for printing a Petition, &c. Said King, "I presented my Petition before I printed it, and then I printed it." And so no Action did lie in the case.

[Debate.]

Serjeant Maynard.] I would put it upon the learned Gentlemen to show you any Action upon the Case brought before Hen. VIII's time. As for that Case cited, of a Writ in a Sheriff's pocket, and not executed, an Action upon the Case was brought. That which is proper before you to consider, is the Grievance—He hath his proper remedy at the Lords House, by Writ of Error. The Action was not brought upon the Double Return, but for the Sheriff's maliciously being a Party. This is proper to be remedied. You may redress it by Act of Parliament, but not judge whether it be right, or no.

Serjeant Stroude.] This is the first cause of this nature, that ever came hither, in matter of Law. Here is not a word of Corruption or Bribery in it, &c.

Friday, May 16.

Some of the Amendments made by the Lords to the Bill of Habeas Corpus, (which see in the Journal,) were this day rejected, and others agreed to by the Commons.

Saturday, May 17.

Sir John Trevor reports, from the Committee of Lords and Commons, [That the Lords had communicated to the Committee certain Proceedings of the House of Lords, which he read in his place, in these words:

May 16, 1679.

"Resolved, &c. That Thursday next be appointed to begin the Tryal of the five Lords in the Tower, &c.

"After which Resolution passed, The Lords Spiritual asked the leave of the House, "That they might withdraw themselves from the Tryals of the said Lords, with the liberty of entering their usual Protestation." And that the Committee of the House did desire the direction of the House, how they should proceed therein.]

[Debate.]

Mr Sacheverell.] If I understand the Report right, this is clearly in contradiction to what both you and the Lords have agreed upon your Books already. The point of time of Tryals was the last thing to be adjusted. I farther observe, that the Lords have not in any sort agreed that the Bishops have no Votes in the Tryal of the five Lords. The Lords Spiritual are so far from it, that they ask leave to be absent. As to that point, which the Committee did insist upon, I think the Lords have made no Answer. I conclude, that the Lords apprehend, very rightly, that, should the Lords make a difference between the five Lords and Lord Danby, that would look too broad in the eyes of the Nation, that you should not argue the Pardon; which I value more than any ten Lords Tryals. If these five Lords only are taken out of the way, and you confirm this Pardon to Lord Danby, you make the King absolute. Any man may then embezzle the King's Revenue, ships, and stores, and may produce a Pardon. And what difference is there between that, and Arbitrary Government without Law? I would show this to the Lords, as the great concern of the Nation, and that the Commons will never give that Power away; if they do, they are undone. If once you admit this Pardon, in bar of Justice, against the Commons, who shall call them to account, when they have a Pardon to help them?—And new Judges will be taken to assist to make it good, and there is an end of all. You have demanded Judgment of the Lords about the Pardon, &c. and have had no Answer; and when the Tryal of the five Lords is over, they will settle the Pardon (by the strength of Danby's friends in the Lords House) and there is a Precedent upon you eternally. No; I would let the Lords know, that we value settling this Pardon, more than any five Lords, and that the Commons will not give them such a handle to undo themselves; and let it lie at the Lords door. And I would let the Lords know, "That it is contrary to their Agreement, and that, till the nature of the Pardon be tryed, we cannot proceed."

Sir Robert Howard.] What has been said, is so well, that I shall repeat no Arguments; but I will come closer to the distinction that is made, and by that distinction it will appear closer to you, what the thing is. But here is a recedency in the Bishops; but the receding is to such and such Lords, but not to Lord Danby. When you sent up the Impeachments, the rest of the Lords pleaded guilty, or not guilty. Danby takes the choice of another advantage, viz. "That of his Pardon, which he will rely upon." You say then, "That his Plea was guilty, for he confesses the Charge by pleading his Pardon." Upon which you demand Judgment. If his Pardon be good, he has the benefit of it; if not good, nothing remains but sentence. Now this is, by the recedency of the Lords Spiritual, a kind of tryal of skill. When the Pardon is good, or not good, there is a reservation of Guilty, or Not guilty. This shall only in the consequence be to stay Judgment. This is a good way to tie up all declaratory Treason. I only add, if this is taken here, that this is a Plea of Pardon, and by which Danby must stand, then the Lords Spiritual ought not to be present. It is plain that the Bishops will sit upon this of the Pardon, and not on the other five Lords, &c. You ought to be clear first in this case. We take Danby's Plea to be his Issue; and if so, you ought not to proceed till this is determined.

Sir Thomas Meres.] I agree that the Bishops ought as equally to withdraw in one Tryal as the other. I agree that it is the interest of this House and England that the Pardon should not stand good. There are six Lords concerned in the Tryal, in the Lords House, and the Bishops have complied with five of the six to withdraw; and I see nothing but that the Lords House may comply with five of the six—I do not say, but that there is a shorter way to be rid of Danby and his Pardon. If fairly and regularly the five Lords may be tryed, we may, for discountenancing of Popery, go on with them and finish something.

Mr Montagu.] I have been silent in this matter of Lord Danby, out of respect to the House, left it should look like private pique against him, &c. But since, by his Pardon, I have made observation that the Justice of the Nation will be stopped, and that by his ambition he may be on the same foot still, to the ruin of the Nation, I would not proceed to the Tryal of the other Lords till this be over.

Sir William Pulteney.] Till this Pardon be judged, you can have no fruit of the Tryal of the five Lords, &c. If they get Pardons, all your Proceedings are to no purpose; though there is some difference between Pardons, impending Impeachments, and not impending. If the King can pardon, &c. there is an end of all your lives and liberties, till you settle that.

Sir William Coventry.] I differ, &c. because the safety of the Nation depends upon a good correspondence between the two Houses. I am afraid, if this dispute is inextricable, we shall have all the disadvantage in the world abroad, who do not see the matter so plain as we do, and so will lay the blame on us. The power in Judicature is always in the Lords, and in Bills we have an equal power with the Lords; but even in that, time and place are in the Lords nomination. If in a thing wherein we are co-ordinate with the Lords, they have that power, it will be dangerous to pass this Vote, &c. Gentlemen would have this matter of the Bishops clear—Thrust the needle through, and the thread will follow; you will have it in all. Divers Bishops have said, and do say, "That if the Pardon do determine Danby's life and death, they will withdraw." If the Lords determine not that point, I am not sure that Danby has not a second post to pass, to pretend his innocence. What is the prudential Reason of Danby's first expectation?—The five Lords have been seven or eight months imprisoned, and we assert the Habeas Corpus, &c. "That the subject shall not be without Tryal." Shall we assume that to ourselves, and stand in that gap which the King has no power to do? Will the Proceeding against the five Lords make Danby's Pardon better or worse, when it comes to be judged? But have not the five Lords Pardons? some may say. But that thing would be so odious, that it will bear down Danby's Pardon, and twenty more on the back of it, so that the thing weighs down on that side of the argument. If the Bishops shall not withdraw, then it will follow, that the Bishops are partial to Danby, and the weight and odium will lie on the Bishops. Whoever wishes the Bishops well, would have them do neither. This will plain the way for Danby's Tryal, &c. If we do not agree with the Lords, we know not how the Lords will insist upon the constituent power of their House; so that if you would secure your passage to all the rest, instruct your Committee to agree to the Tryal of the five Lords first.

Lord Cavendish.] I agree with Coventry, "That the Nation expects Justice against the five Lords," and against Lord Danby also: (By the way, I think him as great a Criminal.) We are not to consider what the Nation expects, but what the Constitution of the Government is. Why was this Committee appointed? The five Lords Tryals may be long, and I know not what there may be of Prorogation. I move, "That you will not agree to the Tryal of the five Lords till the validity of the Pardon be decided."

Mr Bennet.] The meaning of what is done in the Lords House is to cozen and cheat us of the Rights of our House, and in this it is more than the Tryal of twenty Lords. They will put the Pardon by, till the five Lords are tryed, and so they shall never be impeached, &c. My meaning is to impeach any Lord that shall play the rogue with us; you must supply the King, when you have Lords picked out, fit to be hanged for the ill they have done—Your fault is, that you did not proceed upon that Lord's stamped Pardon by creation. When the Lords feel the Commons of England, then they will be honest.

Mr Vaughan.] The Question is, "Whether all crimes shall be legitimated and pardoned?" Which will be so, if this Pardon stand good. Some things are Laws, and as obligatory as Statute Law. For instance, the Powers of Parliament are Laws, but the effect of those Laws is Right of Impeachment, and that is your Right, and if this Pardon stand betwixt you and home, Law and all is gone. This is equal to any thing whatsoever; if there be no punishment to these crimes, that tears you up root and branch, and farewell all!

Sir Joseph Williamson.] I speak to Order. Some of these points are not now in question before you. If you go upon the Pardon, or the priority of the Tryal of the Lords, that is not properly the Question. The matter plainly before you is, "That the Bishops ought not to have a Vote in this Pardon." The Lords say, "They will sit on Thursday to try the five Lords;" and the Bishops have prayed leave of the Lords not to be present there— My Motion is, That you will insist upon your own assertion, "That the Bishops ought not to be present, &c." And it must be cleared before you can proceed to the Tryal of any of the Lords. The Question is no circumstantial Question, but a fundamental Right of Judicature, the fourth, fifth, or sixth part of the whole Judges. The Question is, Who judges? Till that be decided, the Tryal will be nothing; for all may be void by error of Proceeding, of which there have been several Precedents. By that leave that is asked by the Lords Spiritual to withdraw, it implies, if not amounts to a proof, that the Spiritual Lords may sit if they please. Get this matter clear, and the other will follow; but I am far from doing any thing whereby you may lose your Right, by implication; it is affirming the point against you for ever hereafter. In fundamental points who shall be Judges? —Contrary to that, the point is settled against you; therefore I would give instructions to your Committee, to insist upon your last Vote, "That the Bishops ought not to sit upon the Pardon, &c." and to desire the Lords minds in that.

Sir Edmund Jennings.] By the Arguments I have heard, it may be as well said, that the other Lords shall not come to Tryal, as Danby, &c. and that Danby shall be a sacrifice of expiation for the rest. It is said, "That the Bishops have no right to sit." And who shall be the Judges of that? If Coleman himself were now alive, he could not more promote the designs of Popery than this discourse I have heard. I move, "That you would let the Lords know, that this House will proceed to manage the Charge against the five Lords, the day appointed."

Mr Bennet.] He speaks of "making Lord Danby a sacrifice, &c." Nobody said that. The Question is now, "Whether Pardons for crimes shall take away all Impeachments."

Sir Robert Carr.] The words "sacrificing Lord Danby" are a little too hard. If the Articles be true against him, and the Pardon not good, his pleading his Pardon is a confession of the Charge. If he is condemned for confessing his Charge, he is not made "a sacrifice to save others." The Question is, "Whether you have had satisfaction from the Lords, &c." Now the Lords tell you, "That, as to the Tryal of the five Lords, the Bishops are content to withdraw," and your Committee was to adjust the Right of the thing. And whereas it is said, "it is easier to get the point of the Bishops not judging the Pardon, after the five Lords are tryed, than before," now you see plainly, that the Lords insist upon their old Vote of the Right of the Lords Spiritual to sit till Judgment be given; so that upon your Vote the Lords say nothing, and the Bishops insist upon it. I think this is a new Judicature, to take Spiritual Lords to judge in capital causes and crimes. The Lords themselves settled the point, so that this should be the last thing to be adjusted, and they have made it the first. Those without doors think Danby as deep in the Plot as any of the five Lords. But what cannot be pardoned if these crimes pass? How appears it, but that the five Lords have Pardons? And then neither you nor posterity can be safe. If you settle not the point now, I believe you will scarce have time to do it a second time.

Sir Francis Winnington.] I desire to answer some objections. It may be, some things are not fit to be expressed, but I will speak plain. If we consider what the Lords have done, as to the matter of the Bishops, there are two great things before us. Lord Danby, the last Parliament, desired time to answer. He renders himself, and pleads his Pardon. You would then know, whether he would stand to it; and he adhered to it. When we declared, that we were ready to try the five Lords, the last Parliament, Jennings says, "Danby is to be a sacrifice." I do believe Danby one of the Plot; to separate him from the Plot, I cannot. He took his advantage to rise, by his interest with the Papists, and hath stifled the Evidence of the Plot. He hath pleaded his Pardon, in bar of his Charge, and confesses all the Charge to be true. Now the Question is, "Whether you will do any business, if such a thing hang over your heads, as a Pardon in bar to an Impeachment of the Commons of England? Now, as for the priority in proceeding against him, the Court always asks the Prosecutor, "Which Indictment are you ready with?" Who knows the Evidence best to assign a time. It appears, that to one Impeachment a Pardon is pleaded in bar. You have voted that it is not good. If the Lords do think it good, to what purpose should we impeach any man else? So that this is a bigger point than the Tryal of Danby: Here will be no Impeachment for ever hereafter; it fell out first, how the Bishops were concerned. It looks like a nice distinction, as if the Popish Lords should be found not guilty, if Danby's Pardon be good. Then, as to the Tryals of the five Lords, there is a day appointed, and the Bishops say, "They will withdraw at their Tryals," and, to be sure, Danby is not one of them. They name the five Lords. Your Committee answered, "That this is an Answer to part, &c. but not to the whole." And had they put Danby's Tryal sine die, they said, "they had no Order to answer that." So that Danby's Tryal is postponed. It is to no purpose to proceed to any Impeachment, till this preliminary matter be removed, that stops all things for the future. After all Proceedings are over, he will plead his Pardon in bar. But, says a Gentleman, "If the five Lords have Pardons, it is the worse for Danby." Can we believe, that Pardons will not be granted, when we see it has been granted? It is to no purpose to spend out time and estates, when a Pardon be thrown in your teeth, and there is an end. "It is to no purpose to try the five Lords" (the people will say) "till we have asserted their liberties." And I believe we shall have Logic enough to make the people understand us that sent us. I propose, that you will give your Committee Instructions, "That you have had an Answer in part, as to the Lords Spiritual trying the five Lords, but you find no Answer to that of Lord Danby." The great matter, which concerns the Government, is the Pardon of Danby. I desire that the Pardon may be cleared, that we may have satisfaction in that point. It may be, the Bishops have as much kindness for the Popish Lords, as for Danby, and e contra; for they do not (it seems) stand much to their Votes. Let us stand upon the Pardon, and then I hope the Lords will do you Right as to the five Lords.

Sir Thomas Lee.] The Bishops will withdraw, with Protestation to their Right, as they did in the case of Lord Strafford. I am sure, the Pardon is illegal, or ought to be so, and I am sure England is undone, that day this is a good Pardon. But, says a Gentleman, "there may be Pardons granted to the five Lords, betwixt Judgment and Execution;" but the Lords Spiritual tell you, they will go away. How shall we satisfy Gentlemen in the country that sent us hither? I agree, that, if the Government had depended, this Plot must have been, else you could not have asserted this—Oates and Bedlow die, and there is an end of your Prosecution. It is of the most dangerous consequence in the world that this Pardon stand good. If Danby be not the Creator of the Plot, but the Supporter, let us be constant in our opinion.

Mr Swynfin.] I take not what is moved to be the most convenient way with the Lords. If you make that your ground to insist upon, consider how this communication of the Lords has been with you. The Lords say, "They have appointed such a day for the Tryal of Danby and the other Lords." A day after, you appoint a Committee to adjust the manner, &c. You considered then the Bishops presence, &c. and the Lords Vote, "That they have a Right to stay in Court untill sentence of Guilty or Not guilty, &c." Then the Lords appoint the five Lords to be tryed first, and settle no point as to Danby. But to the Tryal of the five Lords, they tell you that the Bishops have asked leave to withdraw; they will not be present. I would say, "That we have had satisfaction as to the Bishops, in the Tryal of the five Lords, but not as to Danby."

Mr Paul Foley.] The Bishops have voted, as to this Tryal of the five Lords on Thursday next. I doubt, the Lords in Judicature will stand stiffly upon their points, which they always do. I think you have not yet made an Order for the Committee to insist upon your former Vote, as to the Bishops presence at the Tryal of the Pardon.

Sir Henry Capel.] I think it not the Question, "Whether the five Lords be tryed first," but "Whether the validity of the Pardon, to prevent the ill consequences of it for the time to come." Parliaments sit upon two great things, giving Money, and questioning great men for offences, &c. and you had better part with your power of giving Money, than that. You will be of no use at all, if your power be taken away of questioning exorbitances in the Government. This is the great point, and I move it for Instructions to the Committee, "That, till this point be settled, you cannot proceed to any other matter."

Mr Powle.] I cannot agree, that this Answer of the Lords is satisfactory to your propositions. The Lords have asserted their Right to be present, and then tell us, "That the Bishops have asked leave to withdraw;" both voluntary things; and the Lords may tell you, "That their leave to withdraw is not accepted," and so they may sit; and if the Spiritual Lords do not ask it, the Temporal Lords will not give it; and so you are where you were before. At Lord Strafford's Tryal, the Spiritual Lords sent you word, that they would withdraw; now, they will ask leave to withdraw. The Lords have not dealt with you according to intercourse of Parliament. They tell you, "They will not proceed to Tryal, &c. till all matters are adjusted," and now they set down a peremptory day for Tryal of the five Lords. I move, "That the Lords may be desired not to appoint a day, till all matters are adjusted." If the Lords will force a dispute upon us, and cram it down upon us, they may, but let us not give them occasion. I would only desire their Vote to be explained, as to the Lords Spiritual, &c. and that they would not proceed to Tryal, till matters are adjusted.

Mr Hampden.] For Instructions to the Committee, I would have satisfaction, as to the Bishops, &c. before we proceed upon Danby's Tryal. You were some time before you had the honour done you to have a Committee of Lords and Commons for adjusting matters, &c. The matter of the Lord Steward is well adjusted. The next thing is, that of the Bishops being present, which is more in relation to Lord Danby's Pardon than any thing else. The Lords said, "The Bishops should not be present at the Judgment of Death;" but when the Committee urged that of their presence in the Judgment of the Pardon, the Lords say, "They had no power to debate that." Then you proceeded to vote, "That no Bishops ought to be present at the Tryal of the Pardon," and the Lords go quite out of the way of that, and tell you, "That the five Lords are to be tried on Thursday, and that the Bishops shall ask leave to withdraw." The Lords distinguish the Cases, and naturally have brought you to this, and had appointed the time for Danby, &c. before. This is not expressed, that the Tryal of Danby is postponed, but plainly implied. I respect not Danby in the matter, &c. but the business of the Pardon. If it be so heavy a thing that nobody can bear it, yet if the Pardon be good, what can the Nation bear? This matter of the Lords Spiritual, &c. is less understood, because it is less explained. What if there should come a Prorogation, how will you dispute the Pardon then, and Mr Bertie's Book, &c.? I can see no hurt in pressing the Lords to go upon the Pardon first. I would therefore plainly know the Bishops mind as to this of Lord Danby's Pardon, &c. and then proceed to that of their withdrawing at the Tryal of the other Lords.

Mr Garroway.] By the last proposition, there is no danger of meddling with the Lords Judicature. The Lords cannot be angry with it. All England is too heavy a weight for them to bear.

Sir Nicholas Carew.] The five Lords would destroy the Nation one way by Popery, and Lord Danby another, by a standing Army, and Pensions to Parliamentmen, and would deliver us up to France that way. He that takes away our Money, takes all, and he is as culpable as the five Lords. If you decide not this matter of the Pardon first, you may be sent home before you decide the other.

Mr Sachevereli.] I would not give occasion of difference betwixt the two Houses, but I would preserve our Right. I like what is proposed. I would know whether the Lords will proceed upon the Pardon, and would have the Bishops explain themselves. You have demanded Right against Danby, and the Lords cannot give Judgment, till you demand it, and so you cannot proceed upon the other Lords, till then.

Resolved, That it be given as an Instruction to the Committee, To insist upon the former Vote of this House, That the Lords Spiritual ought not to have any Vote in any Proceedings against the Lords in the Tower; and when that matter shall be settled, and the Method of Proceedings adjusted, this House shall then be ready to proceed upon the Tryal of the Pardon of the Earl of Danby, against whom this House hath already demanded Judgment; and afterwards, to the Tryal of the other five Lords in the Tower.

[May 19, omitted.]

Footnotes

1 For Manslaughter.
2 It is easy to see, that all this contest about the Bishops Vote arose from a presumption, that their weight would turn the scale, and that both Parties were equally certain into which it would be thrown. Ralph.
The truth was, the Bishops desired to have withdrawn, but the King would not suffer it. He was so set on maintaining the Pardon, that he would not venture such a point on the Votes of the Temporal Lords; and he told the Bishops, "They must stick to him, and to his Prerogative, as they would expect that he should stick to them, if they came to be pushed at." By this means they were exposed to the popular fury. Burnet.
3 The substance of this Bill, since so famous in the World by the name of the Exclusion-Bill, was as follows:
"First, That James Duke of York, Albany, and Ulster, should be incapable of inheriting the Crowns of England, Scotland, and Ireland, with their dependences, and of enjoying any of the Titles, Rights, Prerogatives, and Revenues belonging to the said Crowns.
"Secondly, That in case his Majesty should happen to die, or resign his Dominions, they should devolve to the person next in Succession, in the same manner as if the Duke was dead.
"Thirdly, That all Acts of Sovereignty and Royalty which that Prince might then happen to perform, were not only declared void, but to be High Treason, and punishable as such.
"Fourthly, That if any one, at any time whatsoever, should endeavour to bring the said Duke into any of the forementioned Dominions, or correspond with him in order to make him inherit, he should be guilty of High Treason.
"Fifthly, That if the Duke himself ever returned into any of these Dominions, considering the mischiefs that must ensue, he should be looked upon as guilty of the same offence, and all persons were authorized, and required to seize upon, and imprison him, and in case of resistance made by him or his adherents, to subdue them by force of Arms."
It is remarkable, that even Mr Algernoon Sidney calls this "A severe Bill." Had it taken place, it is easy to see, that it would have been attended with difficulties scarce surmountable. For, first, we may observe, that by this limitation, the Crown would have devolved, at King Charles's death, in 1685, on the Duke of York's eldest daughter, the Princess of Orange. But, secondly, when the Duke had a son, as he had three years after, the Crown must then have reverted to that son, as Heir male; and, not to mention the improbability of the House of Orange quitting the Authority with which they had been invested (at least without all the miseries of Civil War) yet Papists in general were not excluded, as they have been since: And if the son had succeeded to the Title, the father would probably have retained the Power. Happy, therefore, was it for the People of this Land, that neither the Exclusion nor the Limitations took effect, and that King James was no less able than willing to act in such a violent and arbitrary manner, as obliged the Nation to take the most effectual means of preventing it for the future, by calling to their assistance the Prince of Orange, and afterwards giving, by Act of Parliament, an hereditary Right to the House of Hanover, as long as it continues Protestant. So much real Good did Providence produce from apparent Evil; and so were these disappointments of our Patriot Ancestors most abundantly recompensed (as we trust) to their latest Posterity.
4 This being in the Committee of Privileges and Elections, no Notice is taken of it in the Journal.
5 Lord Chief Justice, in 1688.