Debates in 1681
January 8th-10th

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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 1681: January 8th-10th', Grey's Debates of the House of Commons: volume 8 (1769), pp. 285-290. URL: http://british-history.ac.uk/report.aspx?compid=40477 Date accessed: 31 August 2014.


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Saturday, January 8.

[Debate on the Lords not committing Lord Chief Justice Scroggs, &c.]

Sir William Jones.] The Charge against Lord Chief Justice Scroggs is at Common-Law and Statute-Law both—I take it to be Treason in one person, and not in another, an inferior person—And in one in high Place, where he does obstruct Justice, and change the Law, is Treason at Common-Law. We all know the Plot was carried on, and that is Treason—To defame the Evidence, and hinder the suppression of the Plot, I say, is Treason by the Statutes. I say not Scroggs is guilty; I wish he were not. The Lords, as appears by their Journals, have been pleased to read the Articles we sent up against him, and without hearing us, have given Judgment already. The Prayer of the Impeachment is, "That the Lords would commit him." But instead of a previous Question, they have bailed him; and likewise for suspending him his Place, by their Books it appears they would not put a Question. That is, "he shall continue in his Place notwithstanding your Impeachment." In Lord Danby's case, his Charge was not so plainly Treason as these Articles are, and the Lords, upon your demand, and upon Conference, declared, "That of Right he ought to be committed." How it came to be good Law in Lord Danby's case, and not in this, I am at a stand. I would not have any difference with the Lords, but, out of fear of that, I would not have our Privileges torn from us; so that what was delivered in that Conference relating to Lord Danby, so pleasing to this House, has been, in one instance, blemished by bailing Scroggs, and in another, by not suspending him his Place. I would appoint therefore a Committee to prepare the matter, that by Monday morning you may be able to go to Conference with the Lords about it.

Sir Thomas Lee.] This is not the first time this Question has been in this House. In the case of Lord Clarendon's Impeachment, the Lords would not commit him before the Articles were brought up. The Lords refused it, the Commons insisted upon it, and the consequence was, Lord Clarendon ran away, made his escape, and, to salve up all, the Lords sent down a Bill of Banishment. In the case of Lord Danby, the Commons sent up Articles of Impeachment, which were not so directly Treason within the Statute, as the other, and after several Conferences, an Expedient was found out; which was a Prorogation of the Parliament. Now the Lords tell you, that one Parliament will correct the errors of another; and tell us, that the Commons have got a great point, that an Impeachment shall continue, though the Parliament be prorogued or dissolved—And if Scroggs's own modesty make him not withdraw, they have made a resolution that he must be continued (and some of the Lords differed at the Conference about it, as you have heard.) Now it seems, in this Parliament, the Lords go about to correct an error they think they did in the other. I was loth, the other day, to oppose the Articles passing, &c. But consider that, if this man be little, and therefore you quit it, resolve never to have Impeachment in Parliament more. The late Duke of Buckingham, upon apprehension of his Charge, dissolved two Parliaments, and consider what a condition we were in whilst Lord Danby held the Staff. If we are in such a condition with so little a man as Scroggs, and have so much difficulty, and the Lords will not think it Treason, unless immediately against the King, what condition shall we be in, if we have a Popish Successor, and such Judges? I would appoint some Gentlemen to search Precedents to offer the Lords at a Conference, with Reasons, &c.

Mr Powle.] Since this matter is brought into dispute, I am the more glad that it is upon this person, with so many Crimes upon him. It seems as if, right or wrong, the Lords will have disputes with you. The consequence every body sees. The Lords have acknowleged, that they ought de jure to commit Lord Danby, &c. At the beginning of the Long Parliament, twelve of the Bishops made Protestation against the Proceedings of Parliament, and this was then taken for High-Treason, and if my Notes be true, upon general accusation, the Lords took commiseration on them, and bailed them, and the Commons sent up word to the Lords, "That they were not bailable but by their consent." This was February 16, 1641.

Sir Francis Winnington.] I concur with Powle, "That the management of this business in the Lords House relating to Scroggs looks like an industrious disposition to break us." These Proceedings to me are wonderful. I would not invade the Rights of the Lords in what they do. They are now in their judicial capacity as a Court, and not in their legislative, and so we may search the Record, and take out Copies. The Fact has been stated, and I have been industrious to enquire into the reason. It is wonderful to all I speak with. It is said "Their reasons are, that this Charge is not Treason within the Statute, and so it is discretionary with them, and they may alter their Order." But the Statute is out of their case. We shall show them they are in the wrong, as well as in Danby's case. But as for altering their Order, we have as great right in the process and management of the Impeachment as in the Justice of it. The reason is, that the person is only answerable for the Crimes, and I never heard that the persons that are to judge became Bail for the person to be tried (fn. 1) . We are like to have admirable determinations. Our inheritance is Right of Process of the Law, as well as in the Judgment of the Law. For the King to sequester him from his Place they would not address for it, but leave it to Scroggs's modesty whether he would exercise it, or no; but the Lords will not commit him. What makes me stand up is, that we should not now make a doubt of what was always no doubt. Therefore I would not search for Precedents, whether it be our Right or no, but to strengthen the opinion of the World, now the Nation is upon its last legs, that we may avoid all cause of difference with the Lords; if it be possible, that this thing may not receive the least doubt, nor the least delay. It is strange that Lord Danby, who had so mighty friends, and made so mighty a contest, and held the White Staff against us, should be committed by the Lords, and that such an inferior person as Scroggs should be so supported, as if he must still hold his Place against us. I would not search Precedents as a doubt, but to strengthen our Right at a Conference.

Sir John Trevor.] I had occasion to look upon the Precedent of 50 Edw. III, and it appears upon the Rolls, that Lord Latimer, upon the Impeachment of the Commons, was committed to the Marshalsea, and he was bailed by five Bishops, three Earls, fifteen Barons, and thirteen Commons. Here appears a Right in the Commons to his Bailment, because the thirteen Commons became his Bail by consent of the House. 4 Rich. II, Lord Ferrers was bailed, but it is not certain whether the Commons bailed him, but the Commons always had a part in consenting to it. But there is a difference when the Charge is not from the Commons. In King James's time, in the Impeachment against Lord Bacon and Sir John Bennet, &c. there were never any Articles against them from the Commons; but Complaint was made at a Conference against them, and the Lords formed the Articles; but when any Articles bordered upon Treason, as these against Scroggs do, the Lords have always sequestered the Person.

[Ordered, That a Committee be appointed to inspect the Journals of this House, and of the House of Lords, and Precedents, to justify and maintain, That the Lords ought to commit persons to safe custody, when impeached for High-Treason by the Commons in Parliament.]

Monday, January 10.

Sir William Jones.] On Friday last, you made a good Vote in relation to the Bankers lending Money upon any part of the King's Revenue (fn. 2) . It is notoriously known, that the Officers who manage the Customs, notwithstanding the Act prohibiting the importation of French Goods, (and some of them are Members of Parliament) have let all sorts of French wines come in, paying the duty of Spanish wines; so that an Act made for so good a purpose is broken by Members of your House. I would therefore make a Vote, "That if, for the future, the Commissioners shall knowingly break that Law, they betray the Rights and Liberties of the Nation, and are Pensioners to the French King."

Sir Francis Winnington.] We know how much that Act cost us; therefore I would set a brand upon them that have broken it.

[A Vote passed accordingly.

Resolved, That whosoever advised his Majesty to prorogue this Parliament, to any other purpose than in order to the passing of a Bill for the Exclusion of James Duke of York, is a Betrayer of the King, the Protestant Religion, and of the Kingdom of England, a Promoter of the French interest, and a Pensioner to France.

Resolved, That it is the Opinion of this House, That the City of London was burnt, in the year 1666, by the Papists; designing thereby to introduce arbitrary Power and Popery into this Kingdom.

Resolved, That it is the Opinion of this House, That James Duke of Monmouth hath been removed from his Offices and Commands by the influence of the Duke of York.

Ordered, That an humble Application be made to his Majesty, from this House, to desire him to restore the said James Duke of Monmouth to his said Offices and Commands.

Resolved, That it is the Opinion of this House, That the Prosecution of Protestant Dissenters upon the Penal Laws, is, at this time, grievous to the Subject, a weakening of the Protestant Interest, an Encouragement to Popery, and dangerous to the Peace of the Kingdom (fn. 3) .

The Parliament was then prorogued by his Majesty to January 20, and soon after was dissolved by Proclamation, and a new Parliament was summoned to meet at Oxford (fn. 4) , March 21.]

Footnotes

1 The Earl of Dorset was one of hio Bail.
2 This was, "That whosoever shall lend, or cause to be lent, by way of advance, any Money, upon the branches of the King's Revenue arising by Customs, Excise, or Hearth-Money, shall be judged to hinder the sitting of Parliaments, and shall be responsible for the same in Parliament."
3 Though the King came privately to the House this Day, the Commons had a quarter of an hour's previous notice. In which short interval, in a loose and disorderly manner, they made a shift to pass the above extraordinary Resolves. They had not time to proceed any farther, if they had any farther matter to proceed upon. While the last Vote was yet passing, the Usher of the Black-Rod came to the door, and ordered their attendance on his Majesty above: They obeyed. The King passed such Bills as he thought proper, and the Lord Chancellor prorogued the Parliament, &c. The Bill to repeal the persecuting Law, 35 Elizabeth, by a Court-Juggle, or, as some say, by the express command of his Majesty to the Clerk of the House, was not presented for the Royal Assent. So the Non-conformists had no more than the bare Opinion of the Commons to shelter them from the indignation of the Crown.
These who are pleased to assume the venerable Title of Patriots, have given large scope to their resentments against the King for this anti-constitutional Proceeding; and those who value themselves as much on the Glory of being Loyalists, have shed their gall as freely on the Commons for their licentious Votes; and it may serve as a general key to the modern History of England, "That Parties have never so good a Title to be believed as when they expose each other." Ralph.
4 However triumphant the Exclusionists were like to carry their Elections in most parts of England, the appointing Oxford for the place of meeting was a most mortifying blow to them; as became sufficiently apparent by the many artifices they tryed to divert the King from his purpose. The Proclamation was but a week old, when sixteen Peers, the Duke of Monmouth at their head, waited on his Majesty, with a solemn Dissuasive, called by them their. "Humble Petition and Advice." But the King frowned on the Petitioners, and gave them no Answer.