Monday, December 20.
Mr Hampden reports, from the Committee, an Address in
Answer to the King's Speech. (See it in the Journal.)
Mr Vaughan.] I have always accounted it good manners to acquiesce in the pleasure of this House, and now
much more, having the concurrence of my Conscience.
The Precedent has had good success; and from the like
cause I hope we shall have the same effects; for, without
this Bill, we can have no possibility of quiet. They think
now to puzzle us with our own integrity. Whether this
Address have success or no, you have raised a great Monament of your worth to posterity. As for the Association, I cannot tell what that is; against Popery our
Laws associate us, and our hearts for the King. Though
the Duke of York have ever so great Virtue, and endeavour, should he be King, to permit the Protestant
Religion, yet we know where they are all locked up—
There will be a perpetual division between the Head and
the Members, and the Pope will make us Hewers of
Wood and Drawers of Water, if the Duke be King.
I think, the other things in this Answer to the King's
Speech are not equally matched with this great thing
of the Duke: Better things may be coupled with this
Address, and of infinitely more moment. As for Money, we do expect protection from the King, and he support from us. The same ill Arguments that were used
in the Long Parliament for Money, cannot hurt us now;
we are a new Parliament, that live not upon what we
give, nor our pay arising from our Votes, as in the last
Parliament. It is impossible that this Bill of Exclusion
should pass, this Session—I have heard of a short Prorogation of the Parliament for that purpose, and that
from this Place. But have we sat so long as two months,
with great expectation of the Nation upon us, and now
must we conclude a Session, and be in the same condition we were in before, and far worse? Do we not
place it in those hands who have been habituated to Prorogations? If once there be a Prorogation, you will see the
Duke in Whitehall, before you can get into your Scats at
Westminster. You will lose by it the Bill of Banishment
of the Papists, and that, in the Lords House, of banishing
the Duke, &c; and will you by that show your Duty to
the King? I come not here to speak in Masquerade.
The case is now with the King, as it was betwixt Queen
Elizabeth and Mary Queen of Scots. Her Council saw,
that the Queen of Scots and the Papists conspired the
death of the Queen, and should the Queen have fallen by
a stroke from the Queen of Scots, there was by Law an
assurance of indemnity in defending their Religion, and
therefore an Association. But at last they took off her
head, without which an Association would have been of
little signification. Though the King have confidence
in the innocence of the Duke in the Plot, &c. and fears
him not, yet we ought not to hazard the King's life under
such a temptation. Those of the Court have swallowed
our Lives and Estates in contemplation, and will in the
Succession; all goes through the Duke's hands, as well
matters Ecclesiastical as Civil, and he encroaches upon
Royal Power. When this Answer is given to the King's
Speech, send up to the Lords, and desire their assistance
in the streight we are in, and I hope we shall have good
success. But if you are prorogued without doing any
thing farther, I think that the Nation will be ruined, and
vote "That you will give Money, if your Petitions may
Sir William Jones.] I concur with Vaughan in all the
commendations he has given to the Bill of Exclusion; yet
I am so unhappy as not well to understand why, by what
he has said, viz. "We are to depart from the Bill itself,
and not have it, then, without more dangers by Prorogation than without it:" And not without a Prorogation,
"for that," he says, "would be full of inconvenience for
the loss of Bills depending, and all misfortunes upon
us; and the Duke then will be here again." I lay that
weight upon this Bill, that all time will be lost till we
have it. Some Bills will be ready before a Prorogation,
and some are sent up, &c. but if this should be a Prorogation, I think we may sit longer every day, and take
more pains, and then we shall not lose the Bills depending. I wonder what inconvenience will follow, if the
Bills be lost; they may be soon gone over again, and
if we be so happy as to sit two or three days, only to finish
what is before us, it will be so far from inviting the Duke
to return, that I believe he will not return at all. Vaughan
says, "That of Association, &c. is of little signification."
But I hope he does not intend to sit down with words—But
you have described this Association, to what purpose you
would have it. This is no new thing, for then there was
an Association without a Law, and afterwards it was
confirmed by a Law in Queen Elizabeth's time. You
have been told, and something was mentioned, "That
things of a trivial nature were mingled with this great
matter of the Duke, in the Answer, &c. as Judges and
Justices of the Peace, &c." But I think the Judges so
described is a great thing. Therefore, for security of
our Properties, nothing can be more for our advantage.
As for Justices of the Peace, King James magnified the
Government by it, and took a resolution to have the
like Government in Scotland. Judges go their Circuits
but twice a year, but Justices keep the Peace of the
County every day; and if they be not such men as
give countenance to the Protestant Religion, you may
lose it. I see that Vaughan thought well of the matter, and that may beget a long Prorogation, what he
has moved. He spoke of the Bill of banishing the Papists and the Duke; but such a Bill will cease when the
King dies, and they will return with greater increase,
and it is so much lessening our security. I move, "To
pass the Answer, &c."
Mr Vaughan.] The Gentlemen that penned the Answer have done it to the advantage of their own credit.
But I am misrecited; the Judges and Justices I think
to be of moment, but not equal to that of the Exclusion. Who made that bargain of the Prorogation, we
know, and in whose hand that is. The Bill of Banishment of the Papists and the Duke may have some security in it, but in the Prorogation, none.
The Answer, &c. passed as reported.
[The Articles of Impeachment against Mr Seymour were read,
and sent up to the Lords.]
Tuesday, December 21.
[A Bill for uniting his Majesty's Protestant Subjects to the
Church of England, was read a second time (fn. 1) .]
Serjeant Maynard.] I would not let a man come in
what Habit he will to the Church, that is in Orders,
nor use what Prayer he lists, no Liturgy, and every man
to do what he lists. I would not lay all things down,
when you are about to reform some.
Mr Finch.] In matter of fact, I shall acquaint you
how this Bill stands. I would not suppose things in it,
that are not. The Liturgy is not taken away, but only
the "Assent and Consent, &c." which ceases two years
hence; and the Liturgy remains in the same condition
as it is now, or will be in 1682: That of Ordination
remains as it did before. The Oath of Church-wardens,
&c. is understood "in licitis & honestis," and if you take
that Oath away, which there is no Law for, it is no
hurt to the Church. Every man takes the Oaths of
Allegiance and Supremacy, which is much better than
the Subscription only to the Liturgy. The Act of Uniformity is established by Law, and what necessity is
there of subscribing to it, when it is a Law? The thirtyfive Articles are to be subscribed to; Orders and Homilies are not taken away; only there is not an obligation
to subscribe to the whole thirty-nine Articles. As for
Habits, there is no danger that there should be none, or
indecent, for still Ordination is from the Bishop; however, you may refer that to the consideration of the
Mr Powle.] I have been always of opinion, that
Unity is better than Uniformity; and to have Protestants under one Bond, is worth more than any Ceremony; and therefore I am for it. This Bill of Comprehension supports the Church; for consider the number of Papists and Separatists; the Church is reduced
to so narrow a bottom that it cannot stand long; and
those befriend the Church that would support it as well
as they can, and would fail as well as they can betwixt
two Rocks. Ever since Queen Elizabeth's building
up the Church, restraints have been put upon it; and
now we are going to take them off. I will give you an
account of some things, how they came upon the
Church. In Queen Elizabeth's time there was nothing
subscribed to but the Doctrines. Archbishop Whitgist
brought in three Articles to be subscribed, one, the King's
Supremacy, and the other two about Ceremonies; and
for this there was no authority, but the Archbishop did
it of himself. Then King James proceeded by Canons,
in 1613, but I know no Authority in Law for them.
The King's Ecclesiastical Authority changed as his
Temperal, but that unfortunately changed, and the
King came in, and then the temper ran another way, and
there were Acts of Uniformity raised to an higher pitch
than before, and "Assent and Consent" were enjoined.
I may obey what I think in some points may be mended,
and therefore cannot give my Assent and Consent; and
though I am a friend to our Liturgy, yet, I think, some
expressions in it may be mended; and though I join in it,
yet I wish it were put under a better explanation. For
that of Ceremonies, I am indifferent to give consent;
but I fear, if some things established be taken away, that
nothing will be put in the room of them. I am for
establishing Episcopal Authority, so far as it is consistent
with the Government of the State. As for the Oath of
Canonical Obedience, I do not know whether taking
that Oath away does not take away Canonical Subjection, as far as the Ecclesiastical Laws do make good
that Authority. I am afraid we should leave the Government of the Church loose. "The Assent and Consent, &c. ends in two years," it is said; but I take that
to be perpetual, though the Renunciation of the Covenants ends in that time. Persons admitted to Dignities
and Benefices, I would not have them left at liberty
to use, &c. I hope all these things will be provided
for in the Bill.
Mr Finch.] I should be loth to say any thing here like
artifice. I confess I was in an error as to "Assent and
Consent," yet the use of the Liturgy remains in the
Church, if this Act does not pass.
Sir Francis Winnington.] Those who have written the
sharpest against Diffenters agree, that they are the same
in Doctrine with the Church: Now the Question is,
Whether we shall unite them to us, who differ not
from us in Doctrine? It will be for the benefit of the
Papists to destroy us all. I never met with a Parson,
whose Living was under a hundred pounds a year, but
would let them in; but those of a thousand pounds a
year, dignified men, are against it: They think the
alms are better distributed. I observe, there are not
above two in the House against this Bill. If you take
away the Oath of Canonical Obedience, you take not
away the Jurisdiction of the Bishop; he may be punished if he obey not in omnibus. But I hope that no man
means Archbishop Laud's Canons, which were not established by Law. But as to the point of Pluralities, it is
necessary to be thought of; but I fear it will stick so
hard with the Lords, that it will clog this Bill. Let
the Bill stand upon its own bottom for uniting Protestants. I could make it appear, that, for ten or twelve
years last, all has been the product of Popish Councils:
Therefore, without particular instructions to the Committee, you see how the thing may be easy. I will tell a
story, which was in a Court at Westmimster-Hall. There
was a poor man excommunicated for not coming to
Church for some time; he was advised to reconcile himself to his Minister, who, the Judge said, was a moderate man. The Counsel challenged the Officer of the
Register, how many Papists he had excommunicated?
But it seemed, not one.
The Bill was committed (fn. 2) .
Sir George Treby.] You have obtained Judgment against
Lord Stafford from the Lords; there remains Justice to
be done upon him by Execution. There is a Writ come
to the hands of the Sheriffs of London, in the nature of an
original Writ out of Chancery, signed "Finch, Chancellor," for Execution. (And reads the Writ, which see in
Lord Stafford's Tryal.) This Writ does something shock
the Sheriffs, and for your sakes as much as the Sheriffs, I
move it. There is some Question whether the issuing
this Writ out of Chancery can be done in this course of
Proceedings. This Writ is, as if it were a common
Tryal of the Lords out of Parliament. Part of the Execution of the sentence is "Cutting off his head." Though
the Judicature of this be not in this House, yet you are
tender, whether, if the King and the Lords should dispense with part of the Execution, it will not be Error,
and you as Appellants may claim your Right of the Execution. The Sheriffs leave it to you.
Sir William Jones.] The matter moved is of moment, and your time drawing near, of waiting upon the
King, I would not huddle it up, but adjourn it to tomorrow.
[It was adjourned to Thursday.]
[December 22, Fast-day. Dr Burnet preached.]
Thursday, December 23.
[Sir Richard Corbet reports the Resolves of the Committee
appointed to examine the Proceedings of the Judges in Westminster-Hall,] touching the Discharge of the Grand Jury in the
King's-Bench, (which see in the Journal.)
Sir Francis Winnington.] We demand Justice of the
Judges; we are not precarious. It is a standing Rule of
the King's-Bench, "That the Grand Jury of Middlesex
is not discharged till the last day of the Term." One
of the Articles against Archbishop Laud, was for dissolving the Parliament of 1640, and therein is the
word "traiterous." I know not what you will call this
Crime in the Judges; I leave it to you. And whether
you will apply your Vote to this particular. See the
It was moved to be added, "That this being done by the
Judges without Precedent, &c." To which said
Mr Hampden.] That will be a lessening of their
Crimes. There are Precedents enough that the Judges
have subverted the Laws of England.
Mr Vaughan.] I move that these words may be added
to the Question, "Thereby to introduce Popery." It
has been long contended, whether Popery comes before
Arbitrary Government, or Arbitrary Government before
Popery; but now they are pari gradu—This has crept into
the bowels of the Judges. To say we shall have no Indictments, is the same thing as to say, we shall have no
Law at all; a kind of a Legislative Authority in the
Judges. Pray stick to those words in the Question,
"That this tends to the subversion of the Protestant Religion, and to introduce Popery."
Sir Francis Winnington.] The Judges of the King's
Bench have made this Rule of Court, viz. "Ordinatum est,
quod Liber, intitulat "The Weekly Packet of Advice
from Rome, or the History of Popery," non ulterius imprimatur vel publicetur per aliquam personam quamoumque.
Per Cur." By this Rule, provisionally, the Judges
make a Law for the whole Kingdom. Therefore I would
have the Words added to the Question, "Assuming to
themselves a Legislative Power, &c."
Mr Powle.] If you will put that into the Question,
pray put in more. When no Information, Indictment,
or other Process was before them, to make such a Rule,
is what never was done before.
Sir Francis Winnington.] At the time of making this
Rule, there was an Indictment against Benjamin Harris
depending in Court (fn. 3) . I would not give them that advantage.
Mr Vaughan.] Whether there was an Information depending at that time, or not, it is all one. Shall the
Judges make a general Rule? It is an assumption of a
Power that they ought not to exercise.
Serjeant Maynard.] The Judges may make such a Rule,
whether there be an Information depending, or not.
Mr Hampden.] Sure Gentlemen do not consider what
it is for a Judge to assume Arbitrary Power. By that he
makes his Will a Law. The Words "illegal and arbitrary" comprehend all the rest you would have.
Sir Thomas Lee.] Subjects have, by Law, liberty to
write, speak, or print; he may be indicted if he transgress, and it is at his peril, if he offend. But shall not a
man speak unless he be licensed? So somebody might
do it, it seems, though unlawful.
Mr Boscawen.] I desire that you will consider whether
you will proceed against all the Judges at a time, to make
so great a noise; or whether you will begin with the most
Sir Thomas Lee.] If I were assured you would have
time, then you may proceed upon them, one by one;
but the same Committee may draw up the Charge against
them all, and it may be managed with the same Witnesses, and you may proceed with them as you have done
with the Lords.
Sir Thomas Meres.] The beginning of this affair did arise
from discharging of the Grand Jury. Sir Thomas Jones
did it; it is his care, and his province. As to Judge
Dolben, his name was never used by any of the Witnesses. If he suffer, it is for his silence. I know not
how you can avoid putting the Question, but pray let
it not be upon him; but hear a Report that is ready for
The Speaker.] It is a vain thing for one Judge to
speak in the King's-Bench, when two are against a thing.
In the Ship-Money case, Hutton and Crooke, though it
was against their opinion, yet for conformity they subscribed it, and were not impeached.
Mr Colt.] He gave his consent, in every degree, to
discharge the Grand Jury. He might have argued it, if
Sir Robert Clayton.] Whilst Judge Dolben was Recorder
of London, in the Common-Council, when the Plot
broke first out; he carried himself very well; and I have
loved him ever since for it. The worst thing I hear of
him, is, that he had a hand in the whole matter. The
Court of King's-Bench was at Scroggs's direction, and I
think Scroggs had his Preferment, to be useful on such
Sir John Hotham.] If the same things be against this
Judge as against the others, I will not say any thing
for him; but at York, upon the Tryal of a Priest, he did
behave himself very well.
Sir Christopher Musgrave.] In the Northern Circuit,
though I was not at York, I heard that his carriage
was so good at the Tryal of those who were guilty of
the Plot, that I hope he deserves your encouragement.
Sir Patience Ward, Lord Mayor.] At our Sessions at
the Old Bailey, another Judge did screw himself into the
Commission officiously, and came into the Court; where
Judge Dolben was against bailing Mr Christian. And
truly he has deported himself so well, that he deserves
Sir William Pulteney.] The Justices of the King's-Bench
gave the Directions, and it belonged to Jones to discharge the Grand Jury. I have heard Justice Dolben
say, that this was the only thing that troubled him in his
Sir Gilbert Gerrard.] Greater Zeal and Honour I never
saw than from this Judge at York; and he gave discountenance to the Jury that behaved itself ill there.
No Question passed upon Mr Justice Dolben.
[Resolved, Nemine contradicente, That this House doth agree
with the Committee,
1. That the Discharging of the Grand Jury of the Hundred of
Oswaldston, in the County of Middlesex, by the Court of King'sBench, in Trinity Term last, before the last day of the Term, and
before they had finished their Presentments, was arbitrary and
illegal, destructive to public Justice, a manifest violation of
the Oaths of the Judges of that Court, and a means to subvert
the fundamental Laws of this Kingdom, and to introduce Popery.
2. That the Rule made by the Court of King's-Bench in
Trinity Term last, against the printing of a Book, called,
"The Weekly Packet of Advice from Rome," is illegal and
arbitrary; thereby usurping to themselves Legislative Power, to
the great discouragement of the Protestants, and for the countenancing of Popery.
3. That the Court of King's-Bench, in the Imposition of
Fines on Offenders, of late years, hath acted arbitrarily, illegally,
and partially; favouring Papists, and persons Popishly affected,
and excessively oppressing his Majesty's Protestant Subjects.
4. That the refusing sufficient Bail, in those cases wherein the Persons committed were bailable by Law, was illegal, and
a high Breach of the Liberties of the Subject.
5. That the expression in the Charge given by Baron Weston,
(See p. 59.) were a scandal to the Reformation (fn. 4) , and tending to
raise Discord between his Majesty and his Subjects, and to the sub
version of the ancient Constitution of Parliaments, and of the
Government of this Kingdom.
6. That several Warrants issued by the King's Bench are arbitrary and illegal.
Resolved, Nemine contradicente, That Lord Chief Justice
Scroggs, Mr Justice Jones, and Mr Baron Weston, be impeached
upon the said Report, and the Resolutions of the House thereupon.
Ordered, That the Committee appointed to prepare an Impeachment against Lord Chief Justice North, do prepare Impeachments against the said Lord Chief Justice Scroggs, Mr
Justice Jones, and Mr Baron Weston.]
Debate on the Warrant of Execution of Lord Stafford.
Serjeant Maynard.] I cannot find fault with the King's
Mercy in remitting part of the sentence against this Lord;
but this Question has arisen, I believe, that the Lords
and we may be at difference upon it. Either the Papists
hope that, by it, this Lord may be acquitted, or that we
may so differ, that all business may be at a stand.
Sir William Jones.] I differ from what has been said.
I think that the proposal of this matter from the Sheriffs
does not deserve blame, but thanks, and that they did
well to apply themselves to this House. I have considered of it, and I think there is no reason to go to
the Lords about it; it will not prejudice us so much
as some apprehend. The Impeachment is at our prosecution, and the Judgment at our suit. Death is the substance of the Judgment; the manner of it is but a circumstance. If a Nobleman be judged to be hanged for Felony, that he may be beheaded by the King's Warrant
Lord Coke doubts; though the Judges argued that, in
the case of Lord Castlehaven, who was condemned to be
hanged for Buggery, and his Judgment was changed into beheading. The Judgment against a Woman, for HighTreason, is to be burnt, but we know frequently that they
have been beheaded, as was Anne Bullen. I take it easy
to show, that, if the substance be preserved, which is
Death, the circumstances may be varied. No man can
show me an example of a Nobleman that has been
quartered for High-Treason: They have been only beheaded. But now, what shall we do in this case? Shall
we desire the Lords to do what was never done before?
By nature, Englishmen are not so severe; as if the substance could not be performed without the circumstances. What is then to be done? Either Execution will be
done by this Writ, or by Conference you will complain
to the Lords, that Execution is not ordered according to
Judgment, or that they have not done, in the Upper
House, what was never done before. To satisfy the Sheriffs, I would pass a Vote, "That this House is content
that Execution be done upon Lord Stafford, by severing
his Head from his Body."
Sir Thomas Player.] I desire that the Sheriffs, for respect to them, may be called in.
Resolved, That this House is content that the Sheriffs of London and Middlesex do execute William late Viscount Stafford, by
severing his Head from his Body only.
The Lords sent down Mr Seymour's Answer to his Impeachment.
The Speaker.] I think this ought to have been delivered at a Conference; as the Amendments to the Bill of
trying the Peerage ought to have been. I hope you will
consider of it.
Sir Francis Winnington.] I do not know how long we
are to sit, for no steps are made towards setting us right.
I believe we are not to sit long. In the condition we are
in, I would have the Committee public, that draws the
Impeachment against the Judges; that the World may
see our Reasons for what we do, as well as our Votes, and
that we have Reason for what we do.
Colonel Titus.] There can be nothing secret at a Committee. The Room is generally full of Strangers. And
are we afraid it should be imparted to the People? I
would have the World see what excellent Judges we
have, and what fort of hands the People are in. They
talk of our flying at all Great Men, as common traducers of the whole Government. Some may think that
this is not to punish Malefactors, but to put ourselves in
their Places; therefore, to prevent such reflections, pray
justify your Votes.
Mr Colt.] I am against printing. I would not print,
till you impeach the Judges; they will, else, turn the
Evidence against them that have informed you.
Mr Love.] I desire that the Names of the Witnesses
may be printed, for their Honour, that those poor men
may be known to assert the Right of the Commons of
England. Judge Pemberton held up his hands with admiration at the Proceedings at the King's-Bench
(fn. 5) ; and
what became of him afterwards, you all know.
Mr Palmes.] I am afraid of the Precedent, if you
publish your Evidence before you have drawn the Impeachment.
Sir John Hotham.] By printing it, you intend to disperse it through the Nation. It must be paid for by the
Post, and will be chargeable, therefore I hope you will
take care it be printed in as little paper as may be.
Colonel Birch reports the Examination of the Complaint
against Richard Thompson, Clerk, Minister in Bristol.
[Ordered, That the Report be read to-morrow morning.]
Friday, December 24.
Sir Richard Corbet reports the merits of the Election for the
Borough of Bury St. Edmunds.
Serjeant Maynard.] If this was an ancient Borough,
and had power to send Burgesses to Parliament, it cannot be restrained in it's Privileges by a subsequent
Charter. Then the Question is this: Suppose they have
not sent Burgesses for a hundred or two hundred years—
There is mention of four Precepts in Edw. III's time, &c.
Melcombe Regis, Dorchester, Amersham in Buckinghamshire,
and other Places, sent no Burgesses to Parliament for some
time. The intermission of sending was above fifty years.
If you deny this, you will unburgess many Towns that
now send, though formerly disused.
Mr Harbord.] I have searched Records how this Borough came to be discontinued. The King formerly
thought himself too weak for the Barons and Churchmen; and that occasioned the increase of the number.
Waltham and Glastonbury Abbeys had none, because sometimes they could not govern them. Several Abbeys
have had Executio Brevium, but did not return Parliament-men. This Borough is of sixty years possession,
and if you destroy this, you destroy your own Rights.
[Resolved, That Sir Thomas Hervey, Knight, and Thomas Jermyn, Esquire, are duly elected for the said Borough.]
[The Report from the Committee, appointed to examine the
Complaint against Mr Thompson, was read (fn. 6) .]
Sir Robert Markham.] I would not send him to Rome,
for fear that he is their Chaplain already, but I would
banish him to Geneva; for he says, "They are worse
than the Devil that are Presbyterians." Put him into
the Bill of Banishment of the Papists.
Sir Francis Winnington.] I take this business to be of
great concernment. When I speak against such men as
these, I speak for the Church. Three things this Report
runs upon. First, bold and impudent Reflections on the
King; and it is our Duty to take notice of such men.
Next, I never heard any man so confidently and rantingly assert Popery; and next, asserting of Arbitrary Power.
He is a most admirable Preacher, and takes upon him
to assert those things! There were many Witnesses
heard—He is restless in and out of the Pulpit in imposing these Doctrines, and this magnifies his offence,
that it was done in interval of Parliament, in the boldness
of the Papists. It is worthy your consideration what to
do with this man. I have heard of a Precedent of sentencing such a Person to ride through the City with his
face to the horse's tail. If you banish him, it is the way
to make him a Cardinal; such Company as you intend in
your Bill is a Preferment to him—Some men, we see, will
struggle hard to keep the Protestants from being united,
and I must believe that, at the bottom, they love Popery
better than the Protestant Religion. We may raise a
dispute amongst the Lords—Though the man seem too
little to impeach, yet his Crimes are great enough for
the Commons of England to charge him upon; and let
the Bishops see what kind of Cattle these are, that scandalize the Church. Therefore I would resolve upon
some Questions, viz. "That he has impudently scandalized his Majesty and the Protestant Religion;" and
when you have put these to the Vote upon him, the
best way is to make him exemplary. I was thinking
of a short Bill, to put a Character of Disability upon him,
for really there are such a multitude of people in the Plot
(and that borders upon it) that you cannot well impeach
him. Such sort of People as these absolutely endeavour to destroy the Doctrine of the Church, and to bring
in Popery, and such as those that foment Dissentions
Serjeant Maynard.] This Thompson is as naughty a man
as can be; he has scandalized Religion, fallen upon the
dead, that most excellent Princess Queen Elizabeth
(fn. 7) , and
scandalized the Protestants in the Pulpit, besides prosecuting men for not coming to Church when the Churchdoors were shut. I wish you could punish him as he deserves. I think he that scandalized the Queen of Bohemia had Sentence, by Impeachment, to ride with his
face to the horse's tail (fn. 8) . But I would not send him beyond sea, for there he will be favoured. I would fain see
how the Fathers of our Church will look upon this man.
I wonder that he has been suffered in the Church so long.
I would impeach him to the Lords, and then see whether
you may mend their Judgment against him, in a Bill,
which will be much more terrible.
Sir Thomas Lee.] It is necessary that you take notice of
this matter. This spiritual Sword, which they all complain
of, does the mischief. If the Bishop of the proper Diocese had done his Duty, he had saved you this Labour.
Therefore I would pass a Vote, "That he is a scandal
to his own Function, and that he has dishonoured the
King;" and add what you will else to it.
Colonel Birch.] The great tendency of the Evidence
was, "That he defamed and cried down the Reformation." Pray put that in its proper place.
Colonel Titus.] When one considers what monstrous
Conspiracies are against our Liberties, and to change the
Government both of Church and State! There are a sort
of Protestants, who make use of the Profession of the Protestant Religion, to injure the Protestant Religion. And
where did this Mr Thompson do this, but in one of the
most Capital Cities of the Kingdom? His punishment
cannot be too great. He has not only defamed the King,
but spoken reproachfully of the Protestant Religion,
and of Queen Elizabeth. No one Protestant would do
it, and he has cast the Plot upon the Protestants. Should
you pass but a light Censure upon this man, he would
laugh at you. Therefore be sure that in your Vote you
hit upon every thing he is guilty of. Two or three Gentlemen may withdraw, and word the Question.
[A Bill for exempting his Majesty's Protestant Subjects, dissenting from the Church of England, from the Penalties of certain
Laws, was read a second time.]
Sir Thomas Meres.] This Bill repeals, or alters, a great
many Laws; but as to the effect of the Bill, my inclination has gone along with the Bill many years. There
was a Bill brought in formerly to this purpose, but not
so full as this; but for that time it gave a great deal of
satisfaction. Some of this Bill is good and beneficial to
be done. I desire to go on in the worship of God as I
like. If you change Ceremonies as to Habit and Gesture,
they are things indifferent; but if a Person be of invincible ignorance, though of Conscience, I would not hurt
that man. The Oath of Allegiance and Supremacy I
would have taken by such as come in to the Church, and
the Test against Popery—I would not have it give offence
in the way, when the end is good. There are a moderate
Party of the Church of England, and not a lordly. They
that do exceed the Liturgy are Non-conformists, as well
as they that come short. I do not doubt but, when this
Bill is passed, most of the Dissenters will come in to the
Church with that moderate Party, especially seeing that
it is their interest: They will gain them by preaching and
Colonel Birch.] I would have something amended in
this Bill. As this Bill is penned, the Quakers must
bring two persons to swear that they are not Papists (when
they refuse the Oaths) but Dissenting Protestants. I cannot, for my part, believe they are so, and they cannot bring people to swear it; therefore I would have
them named "Quakers" in the Bill, and not "Dissenting
Sir Christopher Musgrave.] This Bill interferes with
your Bill "for uniting Protestant Diffenters." This
Bill seems as if every one might do what seems good in
his own eyes, and does not agree with the Title nor Design of it. The words "Dissenting from the Protestant
Religion" seem to license Quakers, who are no Protestants, and give Toleration of a Religion that we do
not know. Will you associate these men that are not
Protestants? Will they assist you against the Papists?
They will not fight, nor swear as Evidence, nor be of
Juries. They will be of no advantage to the public Defence, and are a sort of People that will subvert the very
foundation of Government. You have great security in
Juries, and these are a sort of men that will not be of
them. There ought to be three Witnesses to a Will, and
should one of them happen to be a Quaker, good-bye to
your Will! I would have no Instruction to the Committee
Sir William Jones.] I desire to answer some things that
fell from Musgrave. I take it, this Bill does not interfere with the former. That opens the door to spiritual
Promotions to Dissenters, as well as others, under such
and such qualifications. This goes not so high. Such
as are moderate in their desires, only, to be quiet. When
we consider that it is impossible to deal with them by
force, but by civil treatment they may be wrought upon;
and no doubt but the Papists have offered them larger
Terms than this; and if they are refused some liberty
now, the Papists hopes will be more upon this sort of
People, though I believe always they were groundless.
But do they desire to be admitted to be qualified, either
for the Church or Cathedral?—They are to pay Tythes,
and, during their meetings, the doors are not to be shut.
If they say any thing against the Government, they forfeit the favour of this Act. But it is said, "That the Quakers are not Christians, they will not take Oaths"—I will
not speak in their justification, but I hope, in time, they
will see their error. But do you put them at ease fully.
If they will not serve on Juries, they will be amerced, and
if they will not swear, they will be fined by the Court. I
think there have been some Votes already, "That the
Laws against the Popish Recusants ought not to touch
them." If you have security, their doors being open,
and these men think themselves better used, than if they
were under the Papists, it cannot hurt the Protestant
Religion. But it is said, "They will not fight." But
they may fight with their purses, and they believe they
may fight against the Papists. In Josephus's History, the
Jews would not fight against the Romans on the Sabbath-day, but they soon found their fault, and did.
Other things the Committee may take care of.
Mr Love.] I did speak with some of the Quakers at
the Door. I said to them, "How can you expect,
when you will not engage to assist the King in your Persons, to have Benefits from the King?" Says one,
"We had like not long since to be robbed, and we
fought stoutly, and so we will do against the Papists." A
Friend of mine abroad had the curiosity to see the Convents beyond sea of the English Jesuits; where they fell
into discourse, and the Fathers fell foul upon Archbishop
Laud, "That he was the greatest Enemy they had in
the World, for he had done more in a few years to bring
in Popery than they could do in an age. Our Principle (said they) is to divide you, and to make Protestants
fall upon one another." I had the Honour to sit here in
the Long Parliament, and it was then the Wisdom of
the House to see whether we were all Protestants, by ordering all to receive the Sacrament. I could not (fn. 9) , and
disobeyed the Order, and they named me for one that did
not; but there were many pieces of bread thrown under
the Table not received. Said a Gentleman, "I am
afraid he has some Popish Principles; he has been long
beyond sea." Sir Thomas Clifford fell upon me then. Who
made the long Declaration against the Bill of Conventicles, but Clifford, Strickland, and Swale
? (I speak this
knowingly.) Said they, "Do you not see yourselves undone? You are torn in pieces by the Church of England;
you can be no worse amongst the Papists." In Coleman's
Letters, you may remember the Project, when the Papists got the upper hand, of letting loose all the Laws
against the Protestant Dissenters, and repealing those
against the Papists, &c. and you know, it was brought
into the Long Parliament, "That all the Estraits against
the Papists were not above three pounds, and those
against Protestant Dissenters ten thousand pounds." I
had then such an apprehension, that, if the House gave
up those Laws against the Papists, and if we should have a
Popish King, the Plague of Plagues would be upon this
Nation. I hope we shall now take all Dissenters in, to
save the Nation, with heart, hand, and shoulder, to unite
against Popery. Let the House make it their Interest to
bring all men in. If the Ship sinks, who will take care of
his Cabbin? I desire you will instruct your Committee,
that, if the Law passes at all, it may answer your end,
and that no man, under pretence of Religion, may be
exempted from chargeable Offices, &c.
[The Bill was ordered to be committed.]
The Vote against Mr Thompson was then brought in, [and
agreed to, as follows:
Resolved, Nemine contradicente, That Richard Thompson,
Clerk, hath publickly defamed his sacred Majesty, preached Sedition, vilified the Reformation, promoted Popery, by asserting
Popish Principles, decrying the Popish Plot, and turning the
same upon the Protestants, and endeavoured to subvert the Liberty and Property of the Subject, and the Rights and Privileges of Parliament, and that he is a scandal and reproach to his
Sir William Jones.] You have made a just Vote, but
if you do no more, he will come off too lightly. You
may trust him now with this Vote in any Judicature;
but I would stop the mouths of his fellows, and in the
face of all the World, I would publish the Evidence
against him, and let the Church-men see what sort of
sons they have. They who think him too little for Impeachment, think him too big for a Bill; but, to prepare
the Lords and all men for his Sentence, I would impeach
Colonel Titus.] No man thinks that this Thompson deserves punishment, and a severe one, more than I do,
but I am at a stand what that shall be. You are moved
for "Banishment with the most considerable Papists." I
do think him a Papist, and much more because he calls
himself a Protestant. I do remember several Persons
you have impeached, an Earl into a Duke (fn. 11) , and an Earl
almost into a Marquess (fn. 12) , and some into being public Ministers. The Effects have been like Thunder upon
Mushrooms; it does but make them grow, not blast
them. Dr Maynwaring was impeached by the Commons,
and was brought to the Bar on his Knees in the Lords
House, and he there recanted what he had written and
preached. He was Dr Maynwaring before you impeached him, and was Lord Bishop of St. David's after.
Some have moved, "That this Thompson should ride with
his face to the horse's tail;" but that would be something severe to one of his Coat; but seeing he has forgot
his Coat all his life, the Commons may forget it for
one day. I would impeach him, that the Bishops may
see what their sons have done: Hœc est doctrina filii vestri.
They have so countenanced this Doctrine, and have been
so far from punishing him, that they have preferred him;
and therefore they are thought, by ill People, great favourers of this man. Therefore I would impeach him
before the Lords.
Sir William Jones.] I cannot tell when his Impeachment will have an end, whether ever, or no; therefore I
would publish what is against him, as a warning to other
Church-men, and in Justification of yourselves.
Sir Francis Winnington.] I look upon this Charge
against Thompson as a national business, and to be part of
the Plot; and such things as these are fit to be known to
the World, that they may see what is libelled upon the
Mr Harbord.] Some of the Clergy are so afraid that
we should unite, that they are almost Papists themselves;
and as for the Church of England that have endeavoured
to asperse us, let the World see what sort of Cattle they
[Resolved, That the said Richard Thompson be Impeached, upon
the said Report and Resolutions of the House: And a Committee
was appointed to prepare the Impeachment (fn. 13) .
Ordered, That the said Report, and Resolve of the House thereupon, be forthwith printed. The House then adjourned to]
Thursday, December 30.
On Mr Sheridan's Habeas Corpus
(fn. 14) .
Mr Boscawen.] Mr Sheridan stands committed, as a
Judgment of the House, for Breach of Privilege. It
seems to me, that his Commitment does run on the
hinge of an Act of Court in a Criminal Cause, which we
may suppose in Execution, where a Habeas Corpus does
not lie, and he is not bailable, and they will not discharge him in a Court of Criminal Causes. I think his
Commitment stands good, and you are to consider the
Privilege of the House of Commons.
The Speaker.] Give me leave to state the matter.
The thing, in fact, stands thus. Sheridan and Day were
committed by your Order the ninth of December; they
were brought to the Bar the same day (fn. 15) , and ordered to
continue in Custody during the pleasure of the House,
and no Person to be admitted to come to him unless it
were with necessaries. Then that Order was mitigated,
and you ordered him to be taken into Custody. Then,
you ordered a Committee to examine him and Wilson.
The Act directs, "That the Judges, within such a time,
grant a Habeas Corpus, when desired, and they are required to bail where the Act gives that liberty." Now the
Question is, Whether a Habeas Corpus lies in case of any
of your Commitments, the Parliament sitting? (And he
reads the Act.) In the Act here is nothing relates to
Parliament-Commitments. The "Head-Court" is the
King's-Bench, and this seems not to relate to the Parliament. This is a Commitment of Parliament, and if so,
the Judges cannot grant a Habeas Corpus.
Serjeant Maynard.] You are going upon a sudden to
give an Opinion in a thing not thought of before. As I
take it, his Habeas Corpus is granted: Now what is to be
done in this case? I desire not to be concluded in any
thing I shall now say, but I will tell you my apprehension; Where shall he go to be bailed, but to this House?
Your remedy for Breach of your Privilege is Commitment,
and no Action can be brought against either the Lords or
Commons. When you commit a man, you do not always express the Cause; if the Judges bail him, he is
gone, and there is an end of him. I would have this
matter let alone till to-morrow.
Serjeant Stringer.] This is a matter of great concern.
I would consider whether a Judge can deny a Habeas
Corpus. By the Act, the Jailor is to pay the Penalty of
five hundred pounds upon Affidavit "That he is refused
the Copy of his Commitment."—So far a Judge may
safely go. But the great Point is, Whether the Judge can
discharge him. If so, farewell all the Privileges of the
Commons! When the matter comes to a Habeas Corpus,
the Judges may be informed how he stands committed.
It is said, "That this Sheridan is a second Còleman," and,
if so, let him be hanged as he was. I would take time
to consider this, and I believe the Opinion of this House
will go a great way with the Judges.
Sir William Jones.] This matter is of great concernment; it concerns the Privileges of both Houses, and
next, the liberty of the Subject; and I would not have
you do any thing in it hastily; but to appoint a Committee to consider it, will seem to make the thing too difficult; but yet you are not ready to come to a Resolution
now. I must deny "that the Judge must grant a Habeas Corpus to this man." This is not a case at Common-Law, but you see that sometimes in discretion formerly they required a Copy of the Commitment. But
by this Act, the Judges grant a Habeas Corpus upon a
Copy of the Commitment. In this case, the Judge is in
no danger upon refusing the Habeas Corpus. The Serjeant says, "Sheridan sent to him for a Copy of his
Commitment," and the Serjeant has not granted it to
him; so the Habeas Corpus is not yet granted. If you
please, I would not commit this, but adjourn the consideration of it.
Sir Francis Winnington.] All I move for is this,
"That no Memorial nor Entry be made upon your Books
for the present;" but upon the whole frame of the Act, I
see no Habeas Corpus lies upon a Commitment of Parliament.
[No Entry was made in the Journal, and] it was adjourned to
Sir Francis Winnington.] You have been moved for
"a Bill against Popish Pensioners," and I desire you
would punish the old Pensioners, and prevent new ones;
especially since the Report has been, that men are to
have Places; which is a scandal in time of Parliament. I
would have no man have a Place, whilst he is a Member
of Parliament, without acquainting the House before
Mr Harbord.] So many artifices are used to asperse your
Members, against the public good, that I move that no
person may have any Place during the Parliament without
leave of the House, or else that he be incapable of being
a Parliament-man if he accept of it.
Colonel Titus.] As I came to the House this morning,
I heard myself to be a great man, and that I had a Place at
Court, and had so many Compliments upon being a great
Minister, that I began to flatter myself that I was really
so; but now I plainly discover that I have no such Place at
all. After you have so proceeded against Sir Robert Peyton
for his truckling for a Place, should I accept of a Pension,
or a Place, it would be no wonder if I should be brought
upon my knees, as he was. I never heard that man said
to have kept a Fort, for it was never assaulted. A woman with an ill face is seldom tempted. I protest, I never
heard of any Place till I came hither this morning. I met
with another Report, "That I had been with the
Dutchess of Portsmouth." If any man can prove, whilst
I was of the Bed-Chamber to his Majesty, that ever I
spoke a word to her, I will lie under all your Accusations.
I know not a better design, nor more dextrous, to carry
on Popery, than this of raising jealousies. Let me repeat
that part of the Litany, "From envy, hatred, and malice,
Good Lord, deliver us." If my own actions will not justify
me, my words never will. I think you have been regularly moved, "That the Papers about the Pensioners in
Sir Stephen Fox's hands may be reviewed." If any man
have no impediment for Preferment, let him take it, but
not be a Parliament-man. If a man think himself qualified for a Place, let him leave the Parliament, and accept of the Place. Lead us not into temptation, we pray
daily. The House will always have power over their
Members, and I move that they may have no employment during Parliament.
Mr Vaughan.] There was something of this nature
offered at in the Long Parliament, but it fell. Now I
think this Parliament consists of good men, able to maintain themselves. Prevent such Ulcers in your own
Bowels. That Bill then offered, "That upon acceptation of any such Office, a new Writ should issue out, to
chuse another Person." I am not for Gentlemen purging themselves. I believe them honest men.
Colonel Titus.] I have been congratulated for a great
Place, and I humbly desire Vaughan's leave to clear myself. I say that some of us were accused of Places, but
not that Vaughan did.
Colonel Birch.] I have a Place, and I had it before the
Long Parliament was called, (I was one of the secluded
Members) and so I am before-hand. Though Vaughan
has not gone much abroad, yet it is the talk of the
Town. I have sat in that Corner amongst those Gentlemen who have been talked of for Places, and had there
been provender amongst them, I should have been crumping with them. But now there are no such Places or bargain made, to the shame of them that reported it. Some
corrupt Judges formerly had their skins stuffed with hay,
for an example; I desire those Gentlemen-Pensioners, if
there be any, may be stuffed with straw, and I am content. If they received Pensions in the Long Parliament,
I have heard that all done in such a Parliament is null
and void; that it has been so formerly.
Mr Garroway.] I think, a Vote in this case will not do
your business, nor answer your end. Therefore I am for
Mr Hampden.] I am for doing this Bill effectually.
Perhaps I wished it some years ago. I am now for a Bill,
but I would have a Vote first, and thus far a Vote will be
obligatory to men of worth and honour: If any man will
say that he is not obliged by that Vote, let him. Pass such
a Vote first, "That during Parliament we may have no
Places nor Pensions to the scandal of the House."
Sir William Jones.] I like both the Questions, both
for a Vote, and a Bill, but I am sorry that you have no
means to bring things to light about the Pensioners. Mr
Bertie is gone abroad, and I am afraid will not return till
this Parliament be up. When men do not act for such
Places, in time the World will be undeceived, and let
that pass. "Places of Profit" will be a word too general
in your Question; they may have Places in Corporations;
but I would add to the Vote, "Not to exclude your
Members from the Magistracy, as Lord Mayor or Sheriff of London, &c." It may be convenient to have them
Members of Parliament. I would have them only excluded Offices from Court, and Places from his Majesty.
Colonel Titus.] Suppose his Majesty should have occasion to send Ambassadors, or Admirals, it may be those
are the ablest men for it. Suppose we should have a
War, will you not let your Members fight for you? The
way to hinder a thing, is to clog it. Therefore pray
pass the Vote as it is moved.
Sir Thomas Lee.] I had an Office conferred upon me in
Parliament (Commissioner-Admiral) and got out of it
out of Parliament: My Country habitation was of more
satisfaction to me. No man knows what a man will be,
but himself. I think you may leave out the words,
"Without leave of the House." You will have no advantage by it.
Sir Francis Winnington.] What I moved this day, was
not to vindicate the Reputation of your Members, but to
prevent Reflections without. I believe the People will be
satisfied with any of your Members having Places whom
the House thinks well of.
Sir William Jones.] I would not have a Question pass
that cannot be well defended without doors. Shall the
World say, "You will make a Vote (be the occasion ever so great, or the man ever so fit) that he must not accept of an Office?" You will hardly find arguments
against the unreasonableness of it. If you leave it in
the power of your Member to put himself out of Office,
then it is another thing. This Parliament is not like
to sit so long as to send Members Ambassadors out of
it; besides, it would seem a very strange thing, that
the House should ever mistrust itself so far, or has
any Gentleman so much authority as to persuade the
House to it? I have put myself, and will, out of the
possibility of it, and I desire the words may stand in the
Resolved, Nemine contradicente, That no Member of this
House shall accept of any Office, or Place of Profit, from the
Crown, without the leave of this House; or any promise of
any such Office, or Place of Profit, during such time as he shall
continue a Member of this House; [and that all Offenders herein
shall be expelled this House.]
Friday, December 31.
On the General Naturalization of all Alien Protestants, and
allowing them liberty to exercise their Trades in all Corporations.
Mr Powle.] There is Jus Suffragii, and Jus Civitatis.
The Bellum sociale came by such a Naturalization. The
Crown may fall to the Distaff, and England may be filled
with Foreigners, to our destruction. In King James's
time, an unica of Scotland of the same nature was opposed.
Sir George Downing.] Spain is the richest Country,
and the poorest Country; they have all the Money, and
no Money; we and Holland have it all in Manufactures,
and they have only the honour of being the Carriers.
France draws more thither by Linnen-cloth, than we in
all our Trade. It was the care of our Ancestors to encourage Manufactures, for before we had only the honour of shipping off the Wool; the Manufacture was
in Foreigners, and the Manufacture was double the
price of the Wool; and your Drapery was brought in
by Foreigners, and Silk Manufacture. Invite Foreigners in, and do that with them that is sober and moderate, and you will have effect, if you give them liberty to work out of Corporations: But if they shall have
equal liberty with those within, (a Gentleman may give
three or four hundred pounds with a son,) and they to
have the same liberty with natives, I am against that,
and that they shall not be, nor chuse Officers. I
would only have the Bill enable them to buy land and
exercise their trades.
Mr Boscawen.] I think it is not for the advantage of
London that they should come into Westminster, and the
same to other Corporations. But in answer to Powle,
the Question is, Whether this Bill is good for England?
Therefore a limitation for France for bringing in Protestants, and I suppose the French live under such persecution, that they will endeavour to keep out that Government they have so smarted under, should the Crown
fall to a Distaff. I would make the Bill temporary, for
seven years only.
Sir John Knight.] There are several Laws, that an
Englishman shall not trade, unless he has served seven
years. Take care that this Bill of Naturalization give
them not more Privilege than the King's Subjects.
[A Bill was ordered to be brought in.]
[A Bill for the relief of the Subject against arbitrary Fines
was read a second time.]
Serjeant Maynard.] The Fines imposed by Magna
Charte, and at Common Law, are with a salvo contenemento. Ransom is another thing—If the Judges exceed, you may call them to account. A Person that
suborned Witnesses was fined four hundred pounds, and
the value of the Estate forsworn was thirty thousand
pounds. Are all offences alike? There must be a difference in the Fines. For Trespass, &c. a man was fined
forty shillings. To assault a man, that is another manner
of Crime. I would not have all manner of Crimes fined
alike; still there is a consideration of all circumstances.
Next thing in the Bill, "That a Jury shall enquire into
the Fine;" and a Jury that never heard the Fine, when
the Judges that hear the circumstances of the Offence,
and the Jury that never heard of the Evidence with the
circumstances—And here, the Judges that never were
present at the hearing the Cause, must assert the Fine
(it being "all the Judges.") But this is not all; a Writ
must come out to enquire what the Estate is of the Person
fined, and they must assess a Fine, and undo all that the
Court has done, and this enquiry is to be by a Jury, such
as the Under-Sheriff shall think fit—Yorkshire, or Devonshire—and a Jury must enquire, that knows nothing of
the ability of the man. I think this Bill amounts to an
indemnity of all villainies. There are great complaints
of the Judges not doing their Duties to fine—I have seen
the Judges mightily affected with a Crime, but it has
died off; it may be, the Offender has been turned
over the Bar (as Reading)—and a Country Jury must
enquire—and so you will never have any punishment of
Mr Boscawen.] I hoped, that as Maynard found fault
with the Bill, so he would have showed you some remedy.
A Countryman of mine, an Attorney, [Mr Browne] but for
sending a Book to Bombay (in the East-Indies) was fined a
thousand Marks, and was not worth a thousand Shillings.
When the Judges become as great Malefactors as other
men, there must be some remedy. If it be referred to a
Jury, the Evidence may be heard on both sides. If the
Judges had fined men according to Magna Charta, with
salvo contenemento, there had been no need of this Bill. I
hope that Maynard will attend the House, and help mend
Mr Foley.] Men have been fined, not according to
their Crimes, but their Principles: Sometimes because
they have been Protestants. This Bill does say; "That
it is in the power of the Judges to fine still, but not to
fine what they please." The rest of the Judges of the
King's-Bench may inform themselves of the Fine by the
Lord Chief Justice, and the other Judges may inform
themselves as they do. If you can help excessive Fines
any other way than by this Bill, I am content.
Sir William Jones.] Maynard has objected against this
Bill, "That Fines for all Offences will be equal;" but
no Fine is to be above an hundred pounds till all the Judges
meet, and so there will be no danger of equality of Fines;
for either the Offender has ability to pay the Fine, or he
has not. But he says, "What! shall the Judges fine;
who heard not the Cause?" Suppose the Cause be tryed
in the Circuit, and there may be but one Judge that has
heard the Cause—It is not often that Fines exceed a
hundred pounds, and the Judges may meet—Scarce three
Causes in a Term require it. But after all this folemnity,
the Jury examine the actions of the Judges—The Fine
may be unequal, and they may moderate the Fine more
than they ought to do; that may be mended; but pray
take care, upon the Commitment of the Bill, that the Jury
be of better Quality, and may know the ability of the
Person. We have had excessive Fines imposed by the
Judges. I would commit the Bill.
Sir Francis Winnington.] There is a mystery in the
matter, how these Fines, imposed by the Judges, come to
be so exorbitant. The Courtiers have begged these Fines,
and then they are set high by the Judges; a shrewd
instance in a Fine lately set upon a man for words at the
Election at Eye in Suffolk, and Sir Charles Gaudy begged the
Fine. If you commit the Bill, you may alter all but the
ti le and purport (so I have heard.) I would have it considered, that a good Bill in general may be framed to
check these exorbitances in the Fines imposed by the
Mr Powle.] The scope of this Bill is, that a man shall
not be fined, by the Judges, more than he is worth. Mr
Arnold had his throat cut, and was desperately wounded
in other places (fn. 16) . The Assassinant was fined forty pounds,
and the man not worth thirty-five. These things usually
come from great men, who hire such villains to do the act,
and will pay their Fine for them. It was said anciently,
"It were better to live in a City where nothing was lawful, than where every thing was lawful." I take it to be
the wisdom of our Government to have some fining discretional. If you take away that power to punish such
enormous Crimes, there will be no safety in the streets.
Amerciaments are with salvo contenemento, but Fine is sometimes Ransom, and must be high.
[The Bill was ordered to be committed.]
On Mr Sheridan's Habeas Corpus
(fn. 17) .
Serjeant Maynard.] I am clearly of opinion that this is
a Cause out of the Statute of Habeas Corpus. That Law
was never intended otherwise than for Commitment from
inferior Courts, and not Parliament. All Bail is in order to Tryal; when an Act of Parliament says "A lower
Court," it never intends a higher. A Commitment is
not only a Judgment of this House, but an Execution;
and though the Statute does not mention the Parliament,
other Courts shall not grant it in Judgment and Execution—There can be no Tryal of one committed from this
House, but in this Place, and this Act is not intended for
Commitments from hence.
Sir Francis Winnington.] It is plain the Parliament is
not to be included by this Act; for the Parliament
was informed, that there was a Habeas Corpus to remove a man from the Tower, and they sent him to
Jersey or Guernsey. So it plainly shows that it was for
the growing evils of removing men out of the reach of
Habeas Corpus, that this Bill was formerly brought in;
and that it was never intended against Commitments of
the House of Commons. A man is committed here in
Execution, and it was never intended that injustice should
flow from this House. As Mr Sheridan has repented
himself of bringing this, I could wish he would of his
other crimes also.
Sir Thomas Lee.] Consider the advantage of putting
this Question, moved from the Bar by Jones, viz. "That
no Habeas Corpus does lie during the fitting of this House."
This Court is a superior Court, and no inferior Jurisdiction. I do not see why you should make any Vote
in this case. The Judge has the Law before him, and
your Vote cannot alter it. You may be prejudiced by
subjecting your Vote to the interpretation and scanning of
Sir William Pulteney.] In this case, a Vote is necessary,
else the Judges will not know what they ought to do,
and what not. You have voted, "That the Judges
cannot grant a Habeas Corpus against the common Privileges of this House." I would have the Judges take notice of it, and therefore I am for a Vote. I do not know
that this House has power to commit, but in case of
Breach of Privilege, and I would so restrain it in the
Mr Paul Foley.] I have looked over the Act, and am of
opinion that a Habeas Corpus does not lie in this case, and
may be refused in case it should be required by this Act.
A Habeas Corpus was never granted upon a Commitment by Parliament formerly; no Precedent can be shown
of it. You commit for contempt, and it must be in such
cases where the party is bailable. If you put a Question,
I would be loth to have our Privileges (which is our only
power) to be lodged in Commitments upon Impeachments, whereas we have power to send for all people,
The Speaker.] This case is particular as to Mr Sheridan,
and is out of the power of the Act of Habeas Corpus; and
why will you make any Question upon it, upon general
Commitments of the House?
Colonel Birch made a Motion, "That Mr Thompson, the Minister, of Bristol, might have his liberty upon bail, &c."
The Speaker.] The Articles of Impeachment against
Mr Seymour were formed and brought in, and then you
ordered the Commitment of him; you keep this man
in custody, till the Articles are completed and reduced to
certainty, and then will be the proper time to let him loose
to make his defence. But what can he defend against,
till he knows the Articles against him?
Colonel Titus.] I wonder at Birch, who made this
Motion for Thompson, whereas he knows it must not arise
from the House as a voluntary Act, till he desires it;
therefore I would have him remain in Custody, till he
Serjeant Maynard.] If any man should be committed,
and you should give bail, and the Party does not desire it,
it would be strange. Suppose Sheridan should bring an
Action against the Judge, if your Commitment be for
Breach of Privilege, no inferior Court will judge of it;
but if the Commitment be not for Breach of Privilege,
you may mend it.
Mr Harbord.] I appeal to you, if ever you discharge a
man that does not acknowlege the Jurisdiction of the
House, and acknowlege his fault? Till he has done so,
let him remain in custody.
The Speaker.] If you should do as Maynard moves,
your Order for Breach of Privilege is, as if after Commitment they should mend the Record in Westminster-Hall,
Sheridan was in custody before the Paper that reflected
upon your Members, and broke your Privileges, was
found. So the first Order for Commitment was upon
Mr Paul Foley.] Though Sheridan was sent for in
custody to the Bar, yet the continuation of him in custody
was for Breach of Privilege.
Sir Thomas Lee.] I would have it considered how you
will mend a Commitment afterwards; if he has a Copy
of his Commitment, general, and now comes an Amendment of the Commitment, for Breach of Privilege, a
month after? The general Debate ran, "That he held a
dangerous correspondence with the Duke of York, and was
a second Coleman." Gentlemen were sent to search his
Papers, and found a Paper in his closet not printed nor
published. Pray let the thing stand upon its own foundation, without mending it.
Sir Francis Winnington.] The famous case of Lord
Shastsbury, when upon a Commitment by the Lords he
was brought by Habeas Corpus to the King's-Bench Bar,
there was no Return made, and he was discharged sedente
Parliamento. If a Rule of Court be ill-entered, I appeal
to you, if it be not mended every day in an inferior
Mr Powle.] Whoever, in this Place, speaks for limiting
your Power is not so favourably heard, as he that speaks
to enlarge it. State super vias antiquas. I am afraid we
are about removing the ancient Land-marks, which may
return to their old bounds again. Your Power is part
of the Judicial, and part of the Legislative Authority,
and it is but part only. Anciently the Judicial Power of
Parliament was exercised by King, Lords, and Commons;
but for some ages past, we, and the Lords, by tacit consent, have had a separate Jurisdiction in that point, and
they punish for their Breaches of Privilege, and we for
ours. This case of Sheridan, I confess, goes beyond your
ancient Privilege; they took no Jurisdiction upon themselves, but either did send to the Lords if the thing deserved an Impeachment, or dismissed it to the Law in
the lower Courts at Westminster. I do not take the
words in the Paper, found in Sheridan's study, to be a
Breach of Privilege against your Members, he having not published the Paper. Here is neither actual
force against your Members, nor Suits of Law. If
the Courts below cannot reform your Error, it is fit
you should do it yourselves. If this man be not in
Custody for Breach of Privilege, I would release him,
and all that are so committed, and reform your own
No Vote passed in it, and the Debate dropped.