Monday, December 2.
The former Debate resumed.
Sir Robert Howard.] I find no cause for the opinion,
that this Bill was against the King's Prerogative. In
one Bill of the Militia it says, "The Militia shall be
raised and mustered for so many days;" which appeals to
the former Act of the Militia; "So many days the
muster shall be, and no longer." Now whether is the
King's Prerogative more confined in saying, "Thus
long, and no longer," or, "Thus short, and no shorter"
a time? Now whether the Prerogative is more confined
which says, "I cannot make it less," or, "I cannot
make it more," &c. I leave you to judge. If you sit
down, and say nothing to this, you tacitly acquiesce,
that, by this Bill, you have invaded the King's Prerogative. Did not the King send you a Message, by the Secretary, about Bedlow's Pardon, &c. "that he would
think of it; Le Roi s'avisera?" If you have not done
amiss, pray assert what you have done; if you have,
then refer it to some Gentlemen to enquire what you
have done by the former Bill.
Sir Richard Temple.] If "Le Roi s'avisera" be not a
negative to a Bill, I know not what is a negative. You
have tryed this, both by Bill and Address, and neither
has done. The Lords answered you, it was better to be
done by a Bill. I hear since, that the Lords have made
an Address to the King to improve it for the present,
"where the fourteen days have not been up, that the
King please to call them together."We were unfortunate in the Bill, not to apprehend the unhappy occasion
of the King's rejecting it. We could not find it when
we reviewed the Bill. I will not dispute the King's Prerogative in this case. The matter is tender, and it is
reason; but the question is, what is to be done. It is
taken for granted, that this can be done only by Bill;
and the House will not address the King against Law,
for any thing. If the King had given his negative to
the Bill, without reasons—But the King has differenced
it from all other denials of a Bill. It is not without
instance, that Bills have been brought in, the same Session, when the manner, and not the matter, has been excepted against. And there may now be such a Bill
brought in, and I have precedents for it.
Mr Sacheverell.] I cannot agree that any precedent has
been, since 2 Hen. V. that ever a new Bill was brought
in of the same matter rejected the same Session of Parliament. That is plain, in the Act made at the Parliament held at Leicester, where they declare "That it is
the undoubted right of the King to give his Assent or
Negative to Bills." Now I am up, I will tell you my
thoughts clear another way; that there are Gentlemen,
above this House, near the King. If this Bill has intrenched upon the Prerogative of the Ministers, it is
more than I know. You made a Law to keep Papists
out of office; and yet they were dispensed with. It is
in vain to offer any Bills, unless the King will take the
advice of Parliament. Edw. I. It was no invasion, in
his time, of the King's Prerogative, to say "his Ministers were nocumenta reipublicæ Angliæ." If you lay it
not before the King, that he is advised by Ministers
against his own interest and yours,—till you do that, all
you do is in vain. Let us once know, whether the King
will once more hearken to you, or his Ministers;
and that, whilst he hearkens to these men, and not to
his Parliament, we must sit down and bewail our misfortunes.
Mr Williams.] The Prerogative is no more incroached upon in this Bill, than in those Acts of the Militia
already made. Did not the Act the King passed on Saturday impose upon the Prerogative more than this?
Cannot the King call what Lords he pleases into the
House of Peers? And yet he passed that Act, to exclude
his own power, that they cannot sit without the Oaths
and Test. I must submit to the King in it; but from
the Councils your Laws are violated, and all from them.
This rejected Bill was so much for the security of the
King—And for any Minister to advise the King not to
pass it!—His head is too little to be a sacrifice for the
thing. This Bill was for the safety of the Kingdom;
and to tell us of Prerogative, when the Kingdom is in
danger! The Counsel that stopped this Bill, will stop all
others. And if you do not examine who gave this Counsel, you do nothing.
Sir Thomas Meres.] This being our condition, as has
been said, I would state our condition to the King, in
which we stand. Neither the King's Council, nor Privy
Council, do conceive the thing as we do. I second,
therefore, the Motion, "That the House will represent
to the King the dangerous condition the Nation is in."
Sir William Hickman.] Either what is proposed from
this House, for remedy of our dangers, comes to nothing, or the execution of it is so slow that it comes to
nothing. I have not heard of any Directions or Commissions to the Lord-Lieutenants to give the Oaths yet.
When the Army, in time of Rebellion, went to prayer,
then there was some damnable thing going forward. I
hear that, all over Christendom, the Jesuits have a fast at
this time, this very day. I move as before.
Mr Bennet.] There are some, that are still insinuating
into the King, that he is securer by those about him
than the Militia, than English Freeholders. Popery can
never come in, but by Protestant hands, such as go to
church; as Irishmen, and transplanted kinsmen to Marshals of France. These are your men to secure the King!
Some of them have been rebels in Ireland. They say,
"That the Militia are boys with feathers in their caps;
and they are for a Commonwealth. They must have such
as have been abroad in France, or at the siege of Maestricht." But it will never be well, till the Militia, Men
of Estates, guard the King's Person, and till the King
believes himself safer thus. I speak not of Secretaries
signing Commissions to Papists, with Dispensations from
the Oaths and Tests (fn. 1) ; they hold their Places by those
things; yet still they are good Protestants! Till we can
so lay the case before the King, and till he believes the
Militia to be his best guard, and trusts himself in those
hands; till the King believes us, we shall do no good:
And till we remove Wife, Friend, Brother, and Sister—till then, you'll never do good.
Lord Cavendish.] I desire, "That an Address may be
made to the King, to represent the Dangers of the Nation." And then consider, whether you will refer it to
a private Committee, or a Committee of the whole
Sir Henry Capel.] I cannot differ from those Gentlemen for the Question, "to represent the present Danger
of the Nation to the King." But we have made so many
Addresses, and have had such Answers, that we have
no encouragement to proceed any farther. It is a notable observation, and I desire to enlarge upon it, that in
the disbanding the Army, the Parliament and the King
agreed it by a Law, and yet they are kept up by some
other persons. This is open to every man's eyes. Till
this Army be disbanded, we can have no farther hopes.
Therefore let us go speedily on for disbanding the Army, and I hope we shall have the concurrence of the
King in it.
Sir John Ernly.] I agree "That the Freeholders of
England are the safest Guard for the Nation." And I
am sorry we have lost the hopes of the Bill for raising
them, in this time of danger. But I conceive there was
no other hindrance to it, than what the King told you.
There was a time when the Scotch Army was to be disbanded, and the Parliament borrowed money of the
City to do it, and got the Act of perpetuity of their sitting, for their security. If that be left out of the Bill,
that the King objected against, I believe yet the King
will pass it. I say this only "for the Representation of
the State of the Nation," moved for. I know not how
he will be sensible of it farther. He knows it all already. If you go on with the Militia, &c. I doubt not
but the King will pass it. As for the Army, the King
is as forward to have it disbanded as you are. It is said,
"there are several Papists in it," and it may be so; but
several ways have been used to purge the Army. Most
of the Officers are good Freeholders; and no man can
think them fit to go into Flanders. If that Army had
not been, no part of Flanders had been left. They did
good service there. And now the ratification of the
Peace is come, there is no farther use of them. And I
concur to their disbanding.
Sir John Birkenhead told a story of the beginning of the
Rebellion in 1641, and the Militia Ordinance; and added,
"That this Representation of the State of the Nation
looked like that time."
Mr Williams.] Either the Gentleman that moved the
Representation of the State of the Nation, or Birkenhead,
ought to be reprimanded.
Whereupon several called Birkenhead to the Bar.
Sir Nicholas Carew.] Now we are representing the
State of the Nation, to tell us of 1641! - I believe that
Birkenhead is a favourer of Popery; and I would have
him called to the Bar.
Mr Bennet.] Though we are told of 1641, and called
Fanatics at Whitehall, I never thought to have heard
it here. I would call him to the Bar.
Mr Secretary Coventry.] We are gone beyond Order.
Whenever we question any Member's words, they are to
be written down. I think he intended no reflection upon the House.
Sir Robert Sawyer.] If there be any blame, it was in
the Chair. The Speaker should have done his duty, by
The Speaker.] If there was any thing amiss, in what
Birkenhead said, and I did not reprimand him for it, pray
lay it upon my account.
Sir Thomas Meres.] He compared our apprehension of
the present danger to Lunsford and his footman, and
Lord Digby's coach and horses, in 1641; and our representing the State of the Nation, to the Remonstrance
in 1641, by the Long Parliament. Still to be told
thus of 1641 is hot; and it was as high what was said
by another Gentleman, "That Birkenhead was a favourer
Sir Thomas Clarges.] I will only say, I was one of
those happy or unhappy men, engaged in the King's
Army, as long as any Army was. We then said, "they
were aspersions of Popery that were cast upon the Ministry, &c." But now Popery is plainly coming in, more
than in 1641; since we have a person so near the Crown,
that has been perverted. These things are still from the
unhappy Representations betwixt the King and Parliament. If the King be not happy and confident in this
Parliament, he will never be in any. Those that make
a difference, in this matter, are no friends to the Crown.
Those who intercept the King's Graces to his People,
will still improve them upon us behind our backs, now
they do so before our faces. I know not how they
come to be thus illuminated. Was not the Act of the
Militia the King's Authority, and the Lord-Lieutenants and Deputies approved by the King? It is necessary to clear ourselves, and make some Representation of our actions to the King. I know not what testimony of your loyalty you can give to the King, more
than you have done. Therefore I am for such a Representation to the King, and leave the success of it to
Sir Edward Dering.] The Representation you are
about to make, concerning disbanding the Army, and
the Danger of Popery, I am for. "For Popery," that
is done already; but "for a Representation of the State
of the Nation" is a large field, and a way not much
trodden; and it must go up to the Lords, and take up
time. The present Danger is not so much from Principles of Government, as from Popery and the Army.
It is a wonderful thing that the disbanding of the Army
should not be done, when an Act was solemnly passed
for that purpose; but more a wonder now, when the
King has invited us to do it, and we desire it: And yet
to be let fall! I would therefore go directly to these two
things, the Army and Popery. You have two Bills of
Popery before you, and you are gone forward in that of
disbanding the Army, which, by former precedents, may
be effectual. I move that the method of disbanding the
Army may be reported.
Resolved, That an humble Address be made to his Majesty,
containing a Representation of the present State and Dangers of
Mr Powle.] Since you have resolved to go upon the
Representation, I would do it with all solemnity. It is
too great a charge for a private Committee to draw up.
I move that we may go into a Committee of the whole
House, and I offer one Head of it, viz. "To represent
the Misrepresentation of our Proceedings to the King."
Let us look back upon the sharp Messages we have had,
&c. contrary to the King's nature, by those Misrepresentations. If you take these things, and swallow them
down, you will be contemptible in the eyes of the
world. Submitting to these things, is a confession, that
the King is in the right, and you in the wrong. I move,
therefore, that that may be the first Head of the Address.
Mr Bennet.] I would have it part of the Representation, how the King's Ministers have dealt with him; and
then the King will either take good ones, or we shall
have power to turn the bad ones out.
Mr Pepys of Cambridge.] That which is proposed is
no new thing; it is beyond 1641. Undermining the
Great Council of Lords and Commons, retaining Forces
up contrary to Law, you'll read it against Magna Charta.
The Spencers, father and son, &c. Empson and Dudley,
Colonel Birch.] How this comes to pass, I know not,
that men should hint at 1641 and 1642. Coleman's Letters give us clear hints for our apprehensions. And for
the clearness of the proceeding, I would go into a Committee of the whole House; and I hope the King will
have clearly satisfaction from us.
Lord Cavendish.] If we reflect on what has been done
for seven years last past, when the Ministers could not impose upon the House for Money, have not they represented to the King, that we were going into 1641, and a
Commonwealth? From whence else come all these Prorogations, but from these Counsellors? And as long as
it is the interest of those about the King to keep things
off, it will always be so.
Sir Philip Warwick.] If you have no persons to accuse, the King is in his own choice to reply to you.
Therefore consider how you will proceed. Could I fix
the Miscarriages upon any person, I would; but if I
cannot distinguish persons from things, I know not how
to give my Vote.
Mr Finch.] When we parted on Saturday, the Debate
was of great importance. If we go on at this rate, we
cannot believe ourselves. We are unfortunate not to go
on in that Debate. If we do believe there is a Plot, and
that it is still carrying on, and men serve in arms in several counties, I see nothing that can be of greater importance, than securing ourselves from Popery. And
nothing can more prevent the dangers we apprehend,
than the establishment of the Militia. It seems, by the
Debate, that the Dangers are not so great to-day, as
they were on Saturday. And now we are arraigning
the Government for those Dangers, before we prevent
them. The King told you, "he is sensible of your care
of him and our Danger, &c." and thanked us. Whether
the Government be good, or bad, is not now a proper
time to determine; our present Danger is Popery, and
proceed to particular instances, how those Dangers are.
Value your Religion, without which you cannot be safe.
Sir Thomas Clarges.] I except against what Finch said,
viz. "That, instead of proceeding upon what you were
about on Saturday, you now go about to arraign the
Mr Finch.] No man but takes that for a part of the
Government, that the King is pleased to make use of.
The King's Justices of the Peace are a part of the Government. I am for naming particular persons that are
faulty. That is for the safety of the Government.
[Resolved, That the Misrepresentations of the Proceedings of
this House to his Majesty be one Head for the Address.]
Mr Sacheverell.] I move for another Head, not to
name Ministers of State; but "to represent to the King
the Dangers of his adhering to private Counsel, and not
taking the Counsel of the Parliament."
Mr Secretary Coventry.] I am willing that all the
Counsels I gave the King were told in this House. This
next thing offered is as much as to say, that the King
should lay down his negative Voice, and that he must
not refuse any Law offered him by the Parliament.
Mr Sacheverell.] I hope hereafter, that those Gentlemen
will allow that the King does it by his Council.
Mr Secretary Coventry.] Then the King must advise
with no body; and when a Bill has passed the two
Houses, the King must have no Advice upon it, but
Mr Sacheverell.] I put it not upon the Privy Council,
but upon "private Advice," and things not come to
the Council Board. It seems, then, there is something
single and separate from the Parliament and CouncilBoard.
Mr Williams.] If Coventry will aver, that the Advice
of the King's rejecting the Bill for the Militia was given
by the Privy Council, he says something. But Gentlemen put it particularly upon the Advice of particular
men, and not the Privy Council; that they have swayed
the King against the Advice of Parliament. I know no
such Council, nor Law of England. I know none as a
Council for foreign Affairs. It is not known in Law.
This is a jesuitical argument, a non concessus, or an universality, out of a particular thing.
In answer to Dering, he farther said,] That the King's
Counsel learned are advised in matter of Law. But as to
what he says of the King's advising with the Judges,
they are not to give Advice, but when a thing comes
immediately before them in Court.
Mr Powle.] A Cabinet Council, that takes things out
of the hands of the Privy Council, is the complaint.
Not many days since I asked, "Whether the matter of
not disbanding the Army, when a Law had passed for it,
was brought to the Privy Council?" It was answered,
"No." Surely you are not against removing such as
Sir Nicholas Carew.] This hellish Plot was discovered six weeks before it was brought to the Privy
Sir Thomas Clarges.] The Plot was concealed six
weeks, &c. and those about the King called him "that
rascal Oates." And will you now deliberate this, "of
the Ministers, &c." to be one Head of the Representation?
Sir John Knight.] I believe that Coleman had more
communication and interest with the Ministers, than the
Parliament had. In one of Coleman's Letters, "We
cannot trust Rouvigny. If Courtin please you not, we'll
send you another." See the Letters in the Journal.
[The previous Question being carried, 138 to 114,] from
these Heads, a Committee was ordered to draw up an Address,
&c. viz. That a Representation be therein made to his Majesty, of the dangers that have and may arise from private Advices contrary to the Advice of Parliament—And of the danger
that may arise to the King and Kingdom by the non-observance
of the late Laws, &c. against Popery, &c.
Colonel Birch.] I desire that one Head may be added
to the Address, viz. "That this House did not intend
to take the Militia out of the King's hand, by the last
Bill which the King rejected."
Sir Thomas Littleton.] That you may not multiply
Heads in the Representation, I conceive that will come
naturally in the first Head.
Mr Oates was called in.
The Speaker.] When you was last here, you desired
the House to intercede to the King for your Pardon, &c.
The House has addressed the King accordingly, and the
King has been pleased to grant you a Pardon from the
beginning of the World till the last of November; and
that you shall have the liberty of Whitehall and the
Park. But your Guards are to be continued for the
safety of your person (fn. 2) .
Mr Oates.] The Guards that I have, annoy me. They do
not use to lie in Gentlemen's chambers. I desire they should
not follow me. I desire there may be a chamber for the King's
Guards to lie in. They annoy me. It is my humble request,
that the two Yeomen of the Guard may be taken from me. I
cannot be free with my friends, when they are with me. I
leave it to the discretion of the House. If they must follow me,
when I go abroad, I desire there may be a chamber for them
apart from me. As for the liberty of the Park, I care not for
it. I would have the privilege of an English-man, to go into
the city. I fear nothing. (Some Gentlemen whispered to the
Compiler, as if Oates had an intent to run away.) I desire that
I may have a copy of what I shall now deliver, which was that
Paper I gave in to the Clerks of the Council. I have no time
to write, when two Guards are in my chamber.
The Speaker.] You cannot be ignorant that you have
drawn great malice upon yourself, by your discovery of
the Plot; and this Guard is only for your safety.
Mr Oates.] I never had these Guards before November. I say
that it is against Law, that I should have Guards upon me. I
humbly thank the House and the King, for their care of me,
and shall rest satisfied in what the House shall determine.
Then Mr Oates read what he informed the House of last, with
this addition, "That as he stood in the anti-chamber at SomersetHouse, when the Queen came out from the Consultation, she
took as much notice of him as usually she does of those of his
rank, and gave him a gracious smile."
Tuesday, December 3.
On the Disbanding Bill (fn. 3) .
Mr Swynfin.] Those men that were taken in to fill up
the companies, since the Act for disbanding the Army,
had neither Order nor Warrant for it, but were prohibited, by the Act, to take in any more. That was to
raise men against Law. It may be, you will have no
more accounts for those men. I would leave them, till
you see the Muster-master's Rolls.
[Resolved, That a Bill be prepared according to the Instructions to the Committee.]
Wednesday, December 4.
Mr Secretary Coventry delivered the following Message from
"C. R. His Majesty, to prevent all misunderstandings that
may arise from his not passing the [late] Bill of the Militia, is
pleased to declare, that he will readily assent to any Bill of that
kind, which shall be tendered to him, for the public security of the
Kingdom by the Militia, so as the whole power of calling, continuing, or not continuing [of them] together, during the time
limited, be left to his Majesty, to do therein as he shall find it
[to be] most expedient for the public safety."
A Gentleman saying, "That it was against the Orders
of the House to bring in another Bill of the same nature
with that the King had rejected"—
Mr Secretary Coventry replied,] I would not have a
standing Order of the House broken, but on extreme necessity, to save the Nation. If the French King invade us,
surely we must not stay for an Act of Parliament, and
then scruple an Order of the House. I am one of those
that think we are in great danger; and will you let the
safety of the Kingdom be gone over, by pretence of
breach of an Order? You cannot answer it to God and
Sir Nicholas Carew.] This is a matter of great concern. I wish the same opinion had been in persons formerly, as now they seem to be of, in relation to dangers
from France. Formerly they were of another opinion.
It may be, this is only designed to break that ancient
Order, of bringing in the same thing rejected in the
same Session. I would well consider of it.
Colonel Titus.] Many things seem small at first, that
are not small in the consequence. We are now but a
small House; and I believe it is not a day or two will
make us in more danger than we are already. If the
Sheriffs be careful of their duty, they may do much
with the Posse Comitatus. Catesby and Percy, in the Powder-Plot, were taken by the Sheriff. If you consider this
great matter in a thin House, a full House will scarce
give you thanks for your haste.
Sir Gilbert Gerrard.] I am sorry you are put upon this
after-game. I propose this to any man that is a soldier, for such a little county as Durham, four hundred
horse may cut all their throats. Sir Francis Ratcliffe,
the Papists General, may embody ten thousand men in
Lancashire and Northumberland. I would consider of it,
to be in some posture.
Sir Thomas Littleton.] This is no slight innovation,
to bring in a new Bill, &c. I will consider it to salve
objections. The King has his negative Voice. He refuses, or passes, Bills, in gross. Now the King proposes you an emendation of your Bill; so in time it may
creep upon you, that the King may propose whole Bills
to us, as he does to the Parliament of Ireland; and we
know not how far this innovation may go. If this be
not worth considering one whole night, nothing is. I
pray consider it.
Mr Williams.] If form will stop a Bill from passing
that is for the safety of the King's Person and the Government, I hope it will not be ill taken, if we bring
not in a new Bill, and break an essential Order of the
House. I hear of no precedent for two Bills of the
same thing, in the same Session. It may be, hereafter,
we shall be brought to the method of an Irish Parliament.
By the Stat. of Carlisle, the King must take the whole
of a Bill, or refuse the whole. The King says, "That
something in the Bill intrenches upon his Prerogative;"
and says the King, "Leave out such a part, and I'll
pass the Bill." Do you not truckle, by this, to those
Counsels you are going about to represent to the King?
I see it is no incroachment upon Prerogative. We repeat Bills and Addresses, and trifle away our time. Look
into Precedents. If once you come to break forms of
Proceedings, you will come to break Laws themselves.
I am against it.
Colonel Birch.] The thing moved for is another Bill,
&c. and the ground of it is your danger. Look back into
former times, and you will find ill things have come in
so. I have heard the reason, why not the same Bill in
the same Session; "the King takes all the Bill, or none."
Admit this once, and if some Council like not part of
a Bill, it may be turned back upon you, and the House
of Commons must make another Bill. Pray lay this
Mr Powle.] The argument, it seems, for another Bill,
is necessity; by reason of our danger, &c. we must
break forms. If there be such a necessity, why was it
not broken on the other side? And let us address the
King to pass the Bill. If you bring in another Bill, you
own, and you have acknowledged, that you have invaded
the Prerogative. I would rely upon the King's care,
and God's providence, for our safety. And seeing we
cannot raise these "legal" Forces, let us go about disbanding those that are "illegal."
Sir George Downing.] I would not have a new argument to keep the Army on foot for defect of the Militia. It is more than ordinarily necessary, that there be a
perfect understanding betwixt the King and us. I move
not for a Bill, but that you would consider of it. The
Lords agreed not with you formerly, about the Bill for
disbanding the Army. It was left upon the Lords table, at the Conference; and the news went to coffeehouses. You remedied the thing then, by patching
up that Bill with another.
Mr Boscawen.] That Bill was not rejected by the King;
it was only lost between both Houses. And that is no
precedent. I am far from voting that we will have no
such Bill; but only I would have a Committee to examine the rejected Bill, and Precedents, &c. I propose
it only to consideration, to raise the month's pay in general on the whole county, or on particular persons,
charged by the Militia Act only. In Scotland, there are
Lords Committees of Articles, and nothing else can be
proposed to Parliament but from them. I have heard
that some, near the helm of the Government, have much
commended that way of Parliament. I would refer this
to a Committee.
Sir Edward Dering.] It is a wonderful thing, that,
when a great danger threatens us, and that we have lawful force to defend ourselves, yet we cannot come at it.
It seems there is no precedent to the contrary (of the
same Bill brought in again in the same Session) but only
there is a want of one for it. Though this Bill be rejected, yet, if there be any material alteration in it, it
may be offered again. I move you, therefore, that you
will go that way for a Bill, or Bills; and to inspect the
Acts of the Militia.
Mr Sacheverell.] I think still we have the same Counsels, and are put upon the same difficulty in this, as in
other things. If you bring in another Bill, you must
own you are in the wrong. Any time these ten years,
we have been put upon these difficulties. They put you
in the condition of the meanest Court in Westminster-Hall;
upon a bare Motion, to alter a Bill. Surely you should
have had some reasons of precedent offered you. Is this
a proposition fit to be accepted in Parliament? It is a
skreen to the Counsellors: And now you are making a
Representation to the King, they come to wheedle you.
But I would scorn to be tricked by any Minister whatsoever. I would rather let them see the shame of what
they have done, than patch up their defect in another
Bill. In 1666 and 1667 there was a large Poll-Bill,
and Supply for ships; and that year we had the shameful dishonour at Chatham. Then followed the Triple
League—Arguments, at the same time, to break it—Supported by France—And they say still, "Give the
King Money, and he'll raise the Militia." Will you now
support these Counsellors? You support Papists in doing
it. If they have prevailed with the King to offer you
this, let them not prevail with you to do it; and lay
Mr Bennet.] This looks like the way of proceeding
of the Lords of Articles in Scotland; and we have a
good Scotch Lord (fn. 4) near the King. This, offered you,
is Poynings's Law (fn. 5) , and we know who heads the Irish
Sir John Ernly.] I know not who gave this Advice to
the King; but I am sure, when such a Bill was passed in
the Long Parliament, the King could not take the Militia down.
[Resolved, That a Committee be appointed, to inspect Precedents touching the Methods and Proceedings of Parliament in passing of Bills; and to enquire, Whether, according to the Methods
of Parliament, a Bill may be brought in, for making the Militia
more useful; and to report their Opinion to the House.]
Thursday, December 5.
Sir John Knight moved the Impeachment of the five Lords in
the Tower, now that the Grand Jury had found the Bills of
High Treason against them.
Sir John Hotham.] The Grand Jury have done their
duty in finding the Bills against the Lords; and I hope
this House will do so too. Things may be baffled; and
I hear there is Evidence, that may come home to them,
not yet examined. The Committee has not, all this
while, been taking Evidence, to signify nothing. I cannot doubt, nor will, of the Justice of the Lords upon
their own Members; but there is a great deal of difference between an ordinary Tryal of a Peer, and upon the
Commons Impeachment, who will lay the finger upon
the sore. I move that you will impeach all the Lords,
&c. or as many of them as you will think fit.
Sir Thomas Clarges.] You have already voted an Impeachment against Lord Arundel; now the Question is,
whether that, or any Court, can take that matter, being
before you, into their cognizance, as to that one Lord.
A Proceeding against any Lord, or Person, whom you
take upon you to impeach, is very extraordinary. I do
not hear of any Indictment yet found against the Priests.
I would have impartial Justice done, as to all concerned
in the Plot; but I would have the Judgment of the
House in this Indictment, you having drawn an Impeachment against Lord Arundel, and being still in the exercise of it, whether any Court can take it out of your
Sir Richard Temple.] I see not how your Vote of Impeachment against Lord Arundel, &c. can be taken notice of without doors. But if you neglect it here, it
must not be neglected without doors. The Prosecution
without doors has not at all clashed with your Proceedings.
Sir William Hickman.] As to Lord Arundel, we are
concerned already. And if we have been so long too
slow, let us now send up to the Lords, to impeach the
rest of the Lords.
Colonel Birch.] You are told by Serjeant Streete, "that
this Prosecution is in the old channel, by way of Indictment and a Grand Jury." But Impeachment is as old,
sure, as any way of Prosecution. I appeal, whether you
were yet ready for any such thing, Evidence not being
yet come in. If you impeach the Lords, you do it "of
Treason, and other High Crimes and Misdemeanors."
And we are not so hasty, because we know not yet
what our Evidence will come to. Because I see preparations in Westminster-Hall for the Lords Tryal, I doubt
not of the Justice of the Lords. But the matter is not
yet ready, and I would have their Tryal stopped, and
the Impeachment drawn, &c.
Mr Williams.] The more time you take for the Evidence to come in, the better it is for the King, and the
Kingdom, and the Lords too. It is but a little inconvenience to let them be somewhat longer in the Tower.
New discovery, and new Evidence, improve daily; some
grow stronger, and some weaker; and had not you concerned yourselves in the Examination of the Plot, it had
come to nothing. But if you leave the Prosecution of
it to the ordinary course of Justice, though it be ancient, yet Impeachment is as ancient. The Peace of the
Government is a good argument used sometimes: but I
would not accelerate these Tryals. I am not satisfied
that we have full light yet, and full Discovery, though
there has been a fair time for Discovery and Examinations. If the Lords are guilty of the Plot to-day, they
will be another day; and if innocent, they will be so
Serjeant Maynard.] The Debate is, whether you will
go by Impeachment, or the ordinary way? The Attorney General, in the ordinary way, goes by way of
Indictment; but we are not to trust to that, if we can
trust our own Evidence. The Lords and Commons
have agreed, that there is such a Plot. If it had been
only to murder the King, then the Prosecution might
have gone on in the ordinary course of Justice; but this
Plot is to destroy Religion and the Government. I do
not know but these things, if questioned in Parliament,
may be made and declared Treason. 25 E. III. There
may be such exorbitant crimes, fit for Parliament to
consider, that no ordinary Judge nor Jury can take notice of; but in Parliament they may. It clearly appears,
that there was a design to overthrow Law, Religion, and
the Government; and that, in Parliament, would be declared Treason. Therefore it is better that way, than in
the ordinary way of Justice. It is not an ordinary Treason,
and therefore not fit for ordinary Prosecution. Many
lesser things than this have been made Treason; as to
kill a Judge in his Place, exercising his Office, or to counterfeit the King's coin: But this crime must have
been an universal destruction to Religion and Government. Misdemeanors there may be, which, by ordinary
way of Tryal, are lost, and not punished; and you may
meet with them in Impeachments. In the ordinary way
the Lords are tryed by twelve Peers, and they can have
no challenge. This concerns all the Nation, and so is
more proper for an Impeachment.
Serjeant Stringer.] If ever, in any age, there was matter for an Impeachment from the Commons, there is at
this time. Else we cannot give the world a just account
of our actions. It is by the Commons of England that
this Plot was discovered; and till they took the matter
into their hands, little was done. No Lord, nor Commoner, accused of the Plot, but was taken by their
care; and the rest had not been taken to this day. The
Commons having done this thus far, they now show the
world that they persevere in their Prosecution, for the
good of the Nation; and they will see the King's Evidence managed to advantage. If this of impeaching the
Lords had not been moved, I intended to have moved
it. Possibly we may have more Evidence than the Attorney General or the King's Counsel. As they manage
the Prosecution for the King, so the Commons manage it
for the King and themselves too, and are therefore more
likely to prosecute with effect. I move as before.
Mr Sollicitor Winnington.] The Motion goes not to
alter the way of Tryal of the Lords. It must be in full
Parliament, where the Lords are Judges of Fact, and
Judges of Law. The Lords accused lose neither way.
But if you go not by way of Impeachment, the King
and the People will lose their right by the 25th Edw. III.
That Statute, having great regard to the safety of men,
does declare what shall be Treason for the future; which
is only a Declaration of the Common Law what was
Treason before that Statute. It does not alter the Common Law, but enumerates many particular cases; and
leaves the Declaration of more Treasons than are particularly expressed in that Statute, to Parliament. The
accused Lords may say, they have reason to thank the
King for the Indictments, who are all found guilty; but
that is but an accusation. What would the consequence
be, if we proceed not by Impeachment? If we try not
the Lords thus, they may say, "the King has declared,
by Acts of State, that there is a Plot. And so have the
Lords and Commons by Vote; and so have all the Evidence, &c. We are likely to do well, when the Commons
have Evidence against us, and they have thought fit not
to impeach us." Were I of counsel for the Lords, I
would advise them to say so. Whether Tryal, or Impeachment, be the elder brother (as Streete says) I cannot
tell; but I believe, Tryal of a Peer in Parliament is
more ancient than by Indictment, &c. I am as tender
of blood as any man, but I hope, if the Lords are
guilty, there will no defect be shown by the Commons
of England. When the Commons come to impeach, &c.
Treason may melt into Felony, and Felony into Misdemeanor. But you have it at large to construe. The
other way of Tryal is streightly tied up, in comparison
of the Commons Proceedings; and I would not streighten the King's Proceedings. The Attorney General may
say, upon the prosecution of a person at the Assizes,
"that the King's Evidence is not ready," and the Court
must stay Tryal till next Assizes. It will be a blot upon
you and posterity, if you proceed not with the rest of
the Lords. Having already voted an Impeachment against
Lord Arundel, I hope you will not fail in the prosecution of the rest, nor flatten in the interest of the Protestant cause.
Serjeant Maynard.] There was a noble Lord once impeached here; first, the charge was general, and then
the particular charge was carried up to the Lords, in order to Tryal.
The Speaker.] The first step you make in this matter, is to determine your resolution to impeach. The
next is, the persons whom you will impeach. Then
you are actually to go to the Lords Bar, and accuse the
persons, and acquaint the Lords, that you will take time
to make your charge out; and if the persons accused be
at large, to desire that they may be in custody. But these
Lords being in custody already, that is out of doors.
But you send not to other Courts to stop proceedings;
but all Courts do stop, of course. The Lords cannot
proceed originally to Tryal, &c. unless the without-doors
matter be certified to them from the Court where the
Indictment was found. But if an Impeachment be
brought up from hence, all proceedings below cease.
Mr Powle.] When a Bill is found against a Peer, at
Law, the King gives Commission, under the Great Seal,
the Parliament sitting to try, &c. This being so, you
are to address the King to stop any such Commission,
you intending to impeach the Lords, &c.
The Speaker.] You have already voted an Impeachment against Lord Arundel. There remain the Lords
Powis, Bellasis, Stafford, and Petre, to vote a Charge of
Treason against, and other High Crimes and Misdemeanors. So that the first Question must be, "that they
be impeached;" and the next, "of Treason, and other
High Crimes and Misdemeanors."
Mr Sollicitor Winnington.] The next matter is, what
is to be done with these Lords. In the Tryal of Lord
Pembroke, the Parliament sitting, whether the Lord
Steward had a Commission under the Great Seal, or whether by delivering a White Staff only, I cannot say.
The Speaker.] In matters criminal, the Lord Chancellor keeps his Place. In matters capital, the Lord
Steward has the Badge of his Office, by the delivery of
a White Staff. When the Tryal is over, he breaks the
Staff. You are first to send up Articles in general, and
say, "That in due time you will send special Articles."
The Form at large, thus:
"My Lords, The Commons of England, in Parliament assembled, having received Information of divers traiterous Practices of a great Peer of this House, Henry Lord Arundel of Wardour, have commanded me (and so of the rest) to impeach the
said Henry Lord Arundel of Wardour of Treason, and other
High Crimes and Misdemeanors: And I do here, in their
Names, and in the Names of all the Commons of England,
impeach the said Henry Lord Arundel of Wardour of Treason,
and other High Crimes and Misdemeanors.
"They have farther commanded me to acquaint your Lordships, that they will, within a convenient time, exhibit to your
Lordships particular Articles of the Charge against him."
Mr Thynne carried the Impeachment up against Lord Bellasis.
Sir Scroope Howe against Lord Viscount Stafford.
Mr Michael Wharton against Lord Arundel of Wardour.
Sir Philip Warwick against Lord Petre.
And Mr Maynard, son of Lord Maynard, against the Earl of
[And a Committee was appointed to prepare and draw up
Articles against them.]