Saturday, December 21.
On the Lords alteration of the place in the disbanding Bill
from "the Chamber of London," to "the Exchequer."
Sir Tho. Littleton.] It is not now the Question, "Whether the Money shall be placed in the Chamber of London, or the Exchequer," but whether the vital Privilege
of this House, the fundamental Privilege of this House,
shall be given up. It is not now, "Whether the Exchequer, or Chamber of London, &c." but whether you will
give up the right and constitutions of Parliament, the
very vitals of Parliament, viz. "That the House of Commons have power to place the Money they give."
Sir John Ernly.] If it be granted that no circumstance
of place can be in a Money-Bill, upon the Division of
the House, I would not have gone out for placing it in
the Exchequer, and not in the Chamber of London. Suppose you should send up a Bill, &c. to put the Money into
your Serjeant's hands, cannot the Lords dispute it, if it
be a thing that may be disputed?—Suppose you rate the
Lords at 2d. a-piece—They may rate themselves—unless
you would have the Bill fall. (Some cried, "Let it
Sir William Coventry.] You are told by Ernly, "That
a Tax-Bill fell in the Lords House once, upon their
lovering your rates upon foreign commodities, &c." But
that shows that you maintained your rights. In the Bill
for ships, the Lords would have their share in taking the
account of the Money, how laid out. "That the Commons should have the account," was part of the condition
of the Grant, and the Commons would not agree the
Lords any share in it—And you had it.
Mr Waller.] This Debate is not orderly. But all this
may be said at a Conference with the Lords, and that is
Sir William Coventry.] For resolution of Wheeler's
question, the Parliament did, several times, recognize
the Queen, in Queen Elizabeth's time, and King James's
time. It might be reasonably supposed, that no man
would oppose the Queen's or the King's title; but the
form of the thing required a Question to be put.
Sir John Talbot.] Here is a Debate that arraigns all
those that went out upon the Question formerly, of "the
Exchequer and Chamber of London, &c." I am not for
delivering up our power to the Lords—But this kind of
taxing the Lords is but of late, within the memory of
man. It was not in former ages so; the way was by Subsidy; the Lords and the Clergy by themselves, and
they might add, surely. But if we have gained the point
upon the Lords, let us know it, and then we may make
use of it in its season.
Mr Powle.] When Littleton saw there was a mistake,
he endeavoured to rectify it, not to fall into the same
mistake again. The monthly Tax may be new, but the
form of the Commons Grant is old. We may see it in
Lex et Consuetudo Parliamenti, though it is not under any
written Law, and never denied to be the right of the
The Speaker.] When you have given Money, the
condition cannot be altered. If you have the right of
giving Money, shall the Lords tell you how you shall
give the Money? The Lords have right of Judicature,
and shall you tell them how they shall judge?
They disagreed also with the Lords in this Amendment, viz.
"John Birch, Esq;" instead of "Colonel Birch."
Colonel Birch.] I am the weakest and meanest person
in the House; but that the Lords should think me so
weak, as to be degraded and disbanded, from having
assumed that name so long here!—And after being "a
Colonel," not only under due Law and Authority, but by
having a regiment also! When I waited on the King at
Worcester, I saw very few there besides myself. I was
ready to have my Commission there, but I was not satisfied that they would fight, and so I went away. I had
Lambert's regiment given me to command, when General
Monk declared for a free Parliament; and I held it till
the King came in. And in May, when the King came
in, I had a Commission from General Monk, by virtue
of the King's Commission to him as General. Besides
that, I have another Commission out of the Chancery,
and another out of the Exchequer, with the title of
"Colonel," and several other additions—And when all
is done, I am as ready to be disbanded as any of these
new "Colonels," and I am as much "a Colonel," as
any of them.
Few of the Lords Amendments were agreed to.
The Articles of Impeachment against Thomas Earl of Danby,
Lord High Treasurer, &c. were reported, &c. by Mr Sollicitor
(fn. 1) .
Mr Sollicitor Winnington.] By Order, I am to acquaint
you, from the Committee, "That they thought it their
duty, before they delivered the Articles, to look after
proof of them: And the Committee have found proof
sufficient to make them good. They have had but a
short time for drawing them up; and the Committee is
informed, that other Articles will come in, and in Impeachments there is always a saving for farther Articles."
Colonel Titus.] I desire there may be such an addition
as the Sollicitor moved for, because I have it from Members, that you will suddenly be apprized of very considerable matters farther. It is said by Temple, "He would
have you proceed in these Articles, in the same method
as in the last Impeachment against the Treasurer. And
that is, not to call in Witnesses till you had voted out
all the Interrogatories."
Sir Edmund Jennings.] This is a matter not to be
jested with. These Articles are of a high nature, and
if made good, and the person guilty of them, he will deserve no little punishment. Now whether you will think
fit to take this Information from the Committee, without
farther grounds? I think it not for your honour. The
Committee could not be found out where they sat, and
all Gentlemen here are on equal reputation, and if the
Committee tell you they have inducements to believe the
Articles, and show you no proof, they may, at this rate,
impeach whom they please. You are told of "the Treasurer's treating with the King of France for six millions
of livres, &c. and the matter not to be communicated
to the Secretaries." But I must observe, that there are
other Letters from Montagu, "That Rouvigny was to
come over to break the War, and to propose Money for
that end—And Montagu did not doubt, by his endeavours,
to get double Money, and desired the Treasurer to acquaint none but the King with it." Now these Letters
of Montagu's preceded those of the Treasurer in time.
If it be a crime to transact affairs without acquainting
the Secretaries, it is no less a crime in Montagu. And
if six millions be a crime, &c. in the Treasurer, it is also
a crime in Montagu to get twelve, and not communicate
it to the Secretaries. If it be a crime in one, it is in
Sir John Knight.] It is regular now to be voted,
"Whether there is ground of Impeachment in these Articles," and now they come to invalidate them.
Mr Sollicitor Winnington.] By your own Order, you
are possessed of the Impeachment, by the Articles the
Committee had Order to draw up, and the subject-matter is in pursuance of your Order to the Committee.
That Letter, mentioned, of the Treasurer's to Montagu is
not an Article of Impeachment; it is only Evidence of
an Article. If you proceed as has been moved, the matter will be infinite, and no man will be brought to judgment.
The Speaker.] Regularly, you are to read the first
Article, and then the Question is to be put, "Whether
you will impeach upon that Article."
Sir Charles Wheeler.] If the fault can be taken off from
the Treasurer, and laid elsewhere, it is a fair way of proceeding—And of that you need not go to King John's
time for Precedents.
Mr Vaughan.] What was said, the other day, of King
(fn. 2) , is no Precedent, but an example. And I hope
if Gentlemen do those actions which were done in King
John's time, they will receive the same punishment those
persons had then.
The Speaker.] No doubt but you will be satisfied of
the Article before you vote it an Article.
Sir Thomas Lee.] Search the Journals, and see the case
of the Duke of Buckingham, and you will find, that his
servants and relations were voted to withdraw, and not
vote in his case. I would have it so now in the Treasurer's case. (Upon Sir John Hanmer's saying, "That
Mr Montagu ought to withdraw.)
Sir Robert Sawyer.] Read the Vote and the Order,
and then you will see whether the Committee has pursued that Order. You must see whether these Articles
are a ground of the Impeachment you resolved, whether
made out by those Letters, or no. The fact must be first
stated; otherwise it is impossible to give a Judgment,
whether it be Treason, or not. To pass a Judgment substantially, I will not trust my conscience with any Committee. When that is done, one or two Gentlemen, at
their perils, are to undertake that there are Witnesses to
prove it. Read the Vote, and the Order to the Com
mittee, and then see whether, out of those Letters, or other matter, the fact is Treason, or not.
Mr Montagu.] Because it was urged that by my Letter I was the occasion of the secresy of the transaction
with France, I will show you an Order from the Treasurer for it, before I wrote that Letter.
Mr Bennet.] Before he shows any Letters, go on upon
the Question, "Whether this Article be Treason, or not."
The Order to the Committee was read.
Serjeant Maynard.] I cannot speak to so many hares
on foot at once. The Committee that brings in the Articles are not obliged to undertake the proof of the Evidence out of the House; that is, to undertake that other
men shall believe it. And therefore that matter must
be in silence; you will else let go the five Lords in the
Sir Edmund Jennings.] There is no design of impeaching Mr Montagu, but only, "That there is no sufficient
ground for the Committee to go upon these Articles."
Sir John Ernly.] I remember the Articles against Lord
Clarendon. The Question was then, at the Committee,
"Whether Papers should be brought in without being
signed, or no." You would not undertake the proof,
but believed that persons would. The Articles were
brought into the House, and undertaken to be proved.
Some of them at the first reading were concluded, by the
Long Robe, not to be Treason; and then it was said,
"Treating with the King's enemies was Treason." My
Lord Chief Justice Vaughan said, "It was not Treason,
unless done contrary to the King's consent;" and then
Lord Vaughan undertook the proof of it (fn. 3) . This Committee calls this treating with the French "traiterous;"
there can be no Treason without a Traytor. This is a
sanguinary thing, and it is every man's soul and conscience that must answer this at the great day. If the nature
of the thing bear it off, I am not against it; but I would
be satisfied in it, as well as the Committee.
Sir Richard Temple.] To Order. You had facts before in Lord Clarendon's case. If the charge be brought
within doors, it is undertaken by some Members to be
proved, if witnesses will stand to it. The Evidence must
either be immediately before you, or Members must undertake the proof of it.
Several complained of "the secret sitting of the Committee,
not being to be found."
Mr Williams, Chair-man of the Committee.] The former day, you sat till ten o'clock at night, and the Committee of Popery fell, and could not sit. But as to the
sitting of this Committee of Impeachment, I will give
you an account where we sat; but it is not to gratify particular persons, but at the command of the House.
Sir Thomas Clarges.] The Committee, not being ordered to time or place, are not obliged to either, and
they may meet where they please, and they have no obligation upon them.
Mr Harbord.] I would have Mr Bertie's words written
down, viz. "That the Committee has put a slur upon
the House;" and "that the Committee did sit in holes."
Lord Cavendish.] Those who except against the Committee, were not of the Committee, who would come only
to spy what we did. God forbid that the Treasurer's
life and estate should be in danger by what we did at the
Committee! But if we are in danger of our lives and estates, by his means, I would have him give an account
of his actions to the Public.
Sir Richard Temple.] No Committee can be appointed
but must have time and place appointed.
Sir Henry Capel takes him to Order.] No place is appointed. If you read your Order, you will find it so.
A Committee ordered to draw up a Bill has no place appointed. And the Committee to draw the Impeachment
against the five Lords in the Tower has no place appointed. But as to "sitting in holes," the Committee had
their liberty to sit where they would, and they had no
Order for place.
Mr Powle.] It is frequent to appoint Committees,
without appointing time and place. I came into the
Speaker's Chamber, where I saw a great many Gentlemen, who, I believe, came not thither to farther the
work. But when I saw they met not there, I went to
view the Journal for the Order, and I found the drawing
the Impeachment referred to two particular persons (fn. 4) .
I searched for them, and found a full Committee.
Serjeant Maynard.] There is a Committee for drawing
up the Impeachment, and that excludes not others from
coming to it. But when you go farther, and say, "two
particular persons shall take care of it," they may meet
where they please. I would adjourn this Debate now,
and appoint the Committee time and place.
Sir Thomas Lee.] Put any one Question, what you will,
to proceed and not lose time. If you void this, all the
proceedings against the five Lords are void too. That
Committee proceeded by the same steps. But consider,
the Lords can proceed upon no judgment in this Impeachment, till they have all the Evidence before them:
And that will satisfy any Gentleman's conscience, that
our proceedings here do not judge the Treasurer.
Sir William Coventry.] I am sorry we spend so much
time to so little purpose. Two persons were to take care
of drawing this Impeachment, and this is in the nature
of drawing a Bill. If twenty are named of the Committee, it is intended that the whole twenty must draw the
Bill: But it is not to be brought to the House without
the approbation of a convenient number, to avoid confusion; else you will never have any Bill drawn. If this
Committee have observed these steps, they are right; if
not, they are not right, and regularly to be reproved.
Mr Williams.] I shall speak to matter of fact. The
Committee agreed to the place of meeting, seven or
eight of us, before you lest the Chair.
The Speaker.] I will state you the right case. You
direct your Committee to draw up Articles, and when
they report what they have done, it is regular to say,
"It is done by the authority of the Committee."
Mr Williams.] Six or seven of the Committee agreed
on the place, which was at my Chamber in Gray's-Inn.
Fifteen had notice of it, and nine were at the place (fn. 5) .
Mr Waller.] They said, "They named the place of
meeting," and I doubt whether it be a Committee, if no
place be named by the House. This is in vitâ hominis,
and upon this occasion there have been such gross mistakes,
that you yourselves have rectified what was amiss. I
love union, and I could have wished that union against
the common enemy. The King and we are agreed about the Popish Lords. When we come to personal
things, then come in personal inclinations and aversions.
When men appoint their place of meeting, and the
House appoints none, then begins the inconvenience.
Sir Charles Harbord.] In the great Bill of Popery there
was no time and place named; but in other things there
must be. But for their "meeting in holes" they are to
blame, and the Chair-man must give you an account
Sir John Talbot.] You now know where the meeting
was. I stand up for your Order's sake, not to spend the
whole day in this Debate. Exception is taken to the
manner of the meeting of the Committee, and that your
Order is defective. The Orders, in case of a Bill, are different from this. The House then has debated the heads
and resolved them, and then they are put to two or three
Gentlemen to make the coherence of what you have agreed. But this Committee has stamped the crimes
upon the thing, which they ought not to do. I have
seen Williams pass Votes, when in the Chair, when the
Committee has rescinded what was done. This Committee being clandestine, it may be they have not done
their duty; for they have stamped the crime already
upon the Articles, which they had no authority to do.
Therefore I move, "That the Articles may be recommitted."
This was seconded by Serjeant Maynard.
The Speaker.] No man, by the ancient Rules of the
House, is to be of a Committee of a thing he is against,
but yet his presence is not excluded. You are to keep
to that point before you, viz. "Whether the Committee
has proceeded regularly in what they have done." Another Rule of the House is; when the Reporter stands up,
he is to be heard before any man else.
Mr Williams.] Eight of your Committee were present
when the Articles were drawn, and they met this morning in a full Committee, in the Speaker's Chamber, and
made some alterations, and adjourned to the inner Court
The Speaker.] That there may be no misrepeating
now, and no misreporting afterwards, let any two agree
on a Question, and I will put it.
Mr Bellingham.] I will make you a Motion. Let
the best friend the Treasurer has in the House propose a
Question, and I am for having that Question put.
Mr Powle.] I would not have the determination of
the Question upon you, Mr Speaker, lest you be chid
for it. I would have it the Question and Opinion of the
whole House. (reflecting.)
The Speaker.] I know not what that means, "of being chid for doing my duty here." If any chide me, I
will chide them again.
Sir John Bramstone.] What would you recommit?
The Paper was never committed; but I would have you
name time and place for the Committee appointed.
Sir Courtney Poole seconds Bramstone.
Sir Edmund Jennings.] If the Question be, "Whether
the Articles shall be recommitted," let the Question be,
"Whether the Impeachment of the Lord Treasurer shall
After divers variations of the Question by the Treasurer's
party, for they could not agree amongst themselves what Question they would have put, this was the Question: "Whether
the Articles of Impeachment against the Lord Treasurer shall be
recommitted;" which passed in the Negative, 179 to 135.
The first Article against the Lord Treasurer was read, and is
as follows: "That he has traiterously assumed to himself Regal
Power, by treating in matters of Peace and War with foreign
Ministers and Ambassadors, and giving Instructions to his Majesty's Ambassadors abroad, without communicating the same to
the Secretaries of State, and the rest of his Majesty's Council,
against the express Declaration of his Majesty and his Parliament;
thereby intending to defeat and overthrow the provisions which
had been deliberately made by his Majesty and his Parliament,
for the safety and preservation of his Majesty's Kingdoms and
Mr Peregrine Bertie.] Before you go to the Question,
I would have some of the Long Robe speak to this
Sir Charles Wheeler.] The Question is, "Whether you
will apply this Article to the title of "assuming of Regal Power, &c." and "Whether the Treasurer assumed
it, or no." If he assumed Regal Power, that is Usurpation, and whoever assumes it is guilty of Treason. In
Lord Clarendon's case, every Gentleman that brought in
an Article said, "He could prove the thing." The Article says, "He assumed Regal Power." The Letter to
Montagu was by the King's command; he does it. Now
how can a man say, "that he assumed Regal Power, and
obeys Regal Power?" Now having voided constructive
Treason by the case of Lord Strafford, our Liberties,
Lives, and Estates are at stake in it.
Mr Vaughan.] As nothing can flow from the Crown
that is unjust, so nothing that is unsafe. At the same time
that you are raising an Army for a French War, here is
one treating with the French for Money for a Peace, and
contriving to lay aside the Parliament for three years; and
this is the present case before you.
Sir Charles Harbord.] The Treasurer is to make good
the King's command for what he did, in his defence,
when he comes upon his Tryal. But you see plainly that
he treats for the Peace, and the Money, and you know
nothing of the King's command for him to do it.
Mr Finch.] What I shall speak to is, whether the
word "traiterous" shall stand in the Article. Impeachment must be for a crime, but the nature of that crime
is the Question. In justice to yourselves and posterity,
I would not have you aggravate the matter beyond its
due nature, against Law. I know not by what Law in
the world that encroachment upon Regal Power is not
Treason. I would have the matter of fact made out by
the Long Robe.
Mr Powle.] I commend the resolution of Gentlemen
in not dipping their hands in blood. And so I hope we
shall be all clear of that, when we come to give an account to God, at the last day of judgment. I think, in
the Treasurer's Letter, he says, "He does it, &c. by the
King's command." No man certainly is so void of shame;
but he would entitle the King to it. No man has authority to treat of these matters, &c. but virtute officii, or by
Patent from the King to do it. No verbal Order from
the King can authorize it—This is no part of the Treasurer's office—Look on his Patent, and you will find that
he is only to look after the Treasury; he is not to meddle
with foreign affairs, and none are to treat with Ambassadors but by the King's authority under the Seal. If the
Treasurer has any such authority, I suppose he will produce his Letters Patent in his defence. At the time
that you gave the Poll-Bill to be employed in an actual
War against France, the Treasurer stipulates for Peace
with the French King. I know not how he can justify it.
Sir John Ernly.] I know not what authority the Treasurer has to treat, &c. But was not the King a Mediator
in the Peace? how could you expect it? War was never
made for War's sake—I doubt it will appear, that the
Spaniards might have had better terms, if there had not
been other engines on work; and I doubt not but Mr
Montagu can say much to that, and in honour and justice
he ought—that the Treasurer was never for France, nor
of that sort. If the King was a Mediator, and could not
treat with France for Peace, it is strange—But we had
actual War with the French in Flanders. The Treasurer
has done nothing but what he had authority for, and if
it be a crime, Montagu treated for it, and would have had
double the Money proposed.
Mr Montagu.] When the time comes I shall say what is
true, as to the Lord Treasurer. And if I be to blame for
what I have done, I will suffer the sense of the House.
Sir Thomas Higgins.] I never knew but that the King
could give authority to treat about Peace. It is the
wisdom of the Gospel that bids us seek Peace. The advantages of Peace depend upon circumstances, or changes
of our enemies.
Sir Henry Ford.] I make no question but this first Article, if proved, is very applicable to the title. But I
presume there is some farther proof of it than this Letter.
It is said, "If the person that so treats, &c. be qualified
by his Place or by Patent, that it is not Treason." But
till I know whether he has or no, I cannot give my Vote.
I should be bold to ask the Committee a Question,
"What proof they have had?" It is the same Question
you asked the King, in your Address, when Montagu's
Cabinets were seized, &c. "Whether upon Oath?"
They have no power, as a Committee, to examine upon
Oath; but some of them are Justices of Peace, and may
examine, &c. I move to know the proof of this Article,
and so I shall in every one.
Mr Bennet.] Ford has come near the matter. He agrees the Article to be Treason. And if the Treasurer
has a Patent to treat, he may in due time plead it; but
we are not condemning him.
Sir George Downing.] As to the office of the Lord
Treasurer, if you take it for a thing you can maintain,
that the Lord Treasurer is not to give instructions to
Ambassadors but by virtue of a Patent, you will be mistaken. It was very ordinary, when I was abroad, for other Ministers to send instructions from Lord Clarendon,
and other Ministers to signify the King's pleasure.
Mr Sacheverell.] In this I will appeal to the Gentlemen
of the Long Robe. Great stress is laid upon the words
"assuming, encroaching, or usurping Regal authority."
I would know, whether treating Peace and War without
the King's consent is Treason? For that making Peace
and War is in the King, no man will deny. I presume,
that to treat of Peace and War against the King's declared sense in Parliament, is Treason, especially as expressed in the latter end of the Article, when it is in
danger of the King and Kingdom. I would have any
of the Long Robe answer that.
Serjeant Pedley.] The Question is not of matter of fact,
whether this Article be true or false, but what you will
denominate the thing. 25 Edw. III. enumerates Treasons (fn. 6) —And what is made by this Parliament for preservation of the King's Person—All other Treasons are out
of doors. Those made in Queen Elizabeth's time were
temporary, and now all is comprized in 25 Edw. III.—
Those words in the Article of "encroached to himself
Regal Power," are not within that Statute. "Regal
Powers" are often assigned to particular jurisdictions.
Some Courts have power of naming Justices of the Peace,
and misdemeanors of those Courts are not only punished
by Quo Warranto, but in the Exchequer also. Raising
of War is depriving the King of his Imperial Crown and
Dignity. Where it concerns a person's blood, we ought
to be tender; but, without doubt, this Article is a high
Misdemeanor, and we can punish for no more than the
crime is. I am very doubtful whether these crimes be
within the Statute of 25 Edw. III. I would have the Statute read. Treason at Common Law this offence might
be, but that was endless, and so the Statute of 25 Edw.
III. was made.
Mr Vaughan.] We have, at the best, but a sad and
melancholy business before us. No man's greatness and
authority, but, if great and unjust, aggravated the ill he
did, being in power to do good. I am not of opinion
that this Article is Treason, either by the Statute of 25
Edw. III. or Judgments, which is called Common Law;
but the Parliament may declare it Treason. Those that
are equal inconveniences to King and State are to be
made Treason. Delivering up towns to the King's enemies, without being driven to the utmost distress, was
not Treason, but judged in Parliament to be Treason.
John Imperial's case, who was Ambassador of Genoa—The
killing him was not Treason, but because it was a high
dishonour to the King to have a foreign Ambassador
killed in his Kingdom, it was in Parliament judged Treason. Now the Question is, whether this Article be equivalent to that case? It is the greatest thing that can
be done in dishonour of the King, to sow sedition in the
Kingdom—When a War was declared in Parliament,
and Money given for it, and at that time to stipulate
Peace with the King's enemies;—it was enough to set the
Kingdom on fire. There is no measure to know the King's
meaning, but by his revealed will—The King, by his
Act of Parliament, declared War against France, and
this man then treated for Peace, and no greater disparagement could be to the King than to become a Pensioner
to the French King, and so great a sum to come into
England from the French must balance on the French
side. I have delivered my opinion.
Mr Williams.] By Pedley's opinion, he agrees that this
is Treason at Common Law. The Stat. of 25 Edw. III.
alters not the Common Law, only as to the judgment of
Treason in the inferior Courts, but alters not the authority of Parliament. The Parliament is not bound up,
but may declare Treason. 25 Edw. III. touches not
this matter at all; but you cannot create this Treason,
that was not so at Common Law. This being so, you
may declare it by this Impeachment, and the Statute of
25 Edw. III. has no influence at all. Now I will come
to the nature of the thing—Compare Treason with Treason—Take the case in fact as it is before you: A Treaty
with a foreign Prince against an Act of Parliament!
Can any thing be more heinous, or touch the King's
Crown and Dignity more? To imagine any thing against
the King's Crown and Dignity with overt act, is Theason. I am of that opinion, till I am convinced by better judgments.
Sir Richard Temple.] All Common-Law-Treasons are
taken away by the Statute of 1 Mary. Declaratory power
in Parliament could extend no farther than to what was
Treason at Common Law, &c.
Sir Harbottle Grimstone.] The little I have to say, is
in answer to the great deal said by Temple. As to the
business of Treason, I agree with Pedley, but more with
the Statute of 25 E. III. There are certain Treasons not
mentioned within that Statute—It must be agreed, that
they were Treasons before then—What does that Statute confine? It does only the inferior Courts. The
omnipotent power of Parliament takes cognizance notoriously of circumstances, for the terror of others, and we
have precedents of men dead and rotten, and yet the Parliament has made their memory rot to posterity; they
have been taken up and buried under the gallows.
When Judgment of Parliament was for a War with
France, and the people were possessed of it; when the King
and the Parliament declared a necessity of a War with
France, and the Parliament was raising money for an actual War; for any man then to treat for Peace! When
once confidence is broken betwixt the King and his people, nothing tends more to the destruction of both, and
they are the worst of men that have brought us to this
pass, that we have no trust at home—We are then a fit
prey for the French. I do not condemn this great Person before-hand, but it will rest upon the House to make
this Article good. I say, it was Treason at Common
Law before the Statute of 25 E. III, and this is a power
reserved in Parliament by 25 E. III, to declare it Treason now. If he has a Pardon, you may go on with the
Impeachment, notwithstanding. If he has a Pardon,
let him plead it. I would not have him hanged with his
Pardon about his neck. Compare this Article with the
particulars enumerated in that Statute, and you will find
this offence as dangerous as any enumerated there.
Sir John Bramstone.] You have matter of fact before
you, and out of that arises matter of Law. Will you
take the part of the Letter against the Lord Treasurer,
and not the part of the Letter for him? The Letter
says, "He was commanded by the King to signify so
much to Montagu;" and never was there any War by
Act of Parliament to last for ever; the King must treat
for Peace in time of War. I see no crime at all in the
Treasurer, in this matter. If it be a crime, I will be
bold to say, that the crime must be Felony before you
can declare it Treason. If Impeachment only be sufficient, what need was there of an Act of Parliament to
attaint in Lord Strafford's case? I believe you have no
power to declare that Treason which was not Felony
Sir Thomas Meres.] The Gentleman makes a mistake
in the point. I agree that nothing can be Treason, but
what was Felony before. But this is Judgment of Parliament. It is put upon the difficulty of retrospect Laws;
but this is no retrospect. He may be guilty of that
Treason at Common Law, but not tryable at WestminsterHall: It must be declared by Parliament—If these
be Treasons at Common Law, they are asleep, and none
can awake them but Parliament. In Lord Strafford's
case, the "ne trahetur in exemplum" was inserted, that the
Judges should not take example, by that Judgment of
Parliament, to judge Treason. Lord Chief Justice
Vaughan's argument, when he sat here, in Lord Clarendon's
case, was so; I affirm it.
Serjeant Maynard.] Whatever Vaughan understood
it, I know not. I hear now great discourse of Treason,
but I would have any man of the Long Robe, or not of
the Robe, desine Treason—Only it is the punishment of
a traytor. Coining of Money, corrupting the Queen's
chastity, &c. Now under what common Genus's do
these come? It is a dreadful judgment. It must be a
crime, else you cannot make it Treason. Men must
foresee what will be done; it must be referred to Parliament if doubtful. I hear it said, "That it must be Felony before it can be declared Treason." 1 H. IV, in
case of Appeals—one Lord challenged another to combat,
and the King might grant it. H. VIII. Statute cuts out a
case, but takes not the authority from Parliament. In
1397, John Hall was sent over to Calais, by R. II. and
they stifled the Duke of Gloucester with a feather-bed, and
the Lords gave Judgment of Treason, 1 H. IV. and that
was but a Felony, and done beyond the sea. To subvert Religion, and coin a shilling is Treason; to kill one
Judge, &c. is not a greater Treason than to kill all the
Judges. In every Nation one power is supreme. In
England the King, Lords, and Commons. 1 H. IV. the
Commons are petitioners to the King for matter of right,
they are demanders for Justice. I will not enter into the
question how far the Lords can go. Such a case may
come as deserves as heinous Judgment as any of the Treasons of 25 E. III. If any man take Money to betray
his country, or take Money here for his Vote, I would
have him have Judgment before the Lords and you of
Treason. If this be the case, and the Treasurer has done
it by command of the King—the Law denominates Patricide
(fn. 7) ; no Law for it. When men exceed the Laws
in wickedness, Laws must be made to meet with their
crimes. This case of War with the French King, &c.
and Money given by the Parliament for it, and a private
Council treats with the French King for Money for a
Peace; there may be circumstances that may mitigate it—
But for a particular Minister to divert the King's intentions
by Law—It is but a monstrous opinion that great crimes
should go unpunished As to Lord Strofford's case, in
divers things he had exceeded; Sir Henry Vane took notes
under his hat, at a private Council, of what Lord Strafford said, viz. "That the Parliament had denied the
King Money, and that the King stood loose and absolved, &c. and might send for the Army out of Ireland to
reduce his rebellious subjects in England." This and
other things mixed together were declared Treason in the
Long Parliament, 1641. The House of Lords went
upon another way. I drew that Proviso, "That this
Judgment upon Lord Strafford should not be drawn into
example;" else liberty had been given to the Judges to
have judged Treason accumulative. Therefore this should
not be drawn into example, but the Judges should hold
to the Statute of 25 E. III. But I am not satisfied in this
Article, to be declared Treason.
Mr Waller.] Pray look into the Act of Repeal of
Lord Strafford's Attainder. I differed from them then
in the Attainder, and I do a little now—You will not
make a Treason of imprudence—But there is the matter,
whether the King commanded this. Mens regis is mens
legis. That which you are to go upon is de jure. First,
determine that this man treated without the King's Order. And next, how if he did it with his Order.
Mr Sollicitor Winnington.] I will not show the strength
of my voice in what I say, but, as well as I can, of my
reason. By 25 E. III, when the Nation was well settled after the Conquest, then they considered where that
great trust should lie in point of administration of Justice
against extraordinary offenders. That of the 12, 14, or 20
E. III. were Treasons; but because many other Treasons
which the Judges shall not judge, are not there declared,
yet it takes not away Treason at Common Law, to be
judged in Parliament. That Statute of 1 E. VI. and 1
Mary takes care that no Treason shall be for the Judges
to declare, but only such as is made Treason by 25 E.
III. but not Treasons at Common Law. But because great
men are too hard for the Common Courts of Law, and
are apt to forget their duty in their Places, they incroach
sometimes upon Royal Power, and take the Prerogatives
inseparable from Regal Power to themselves. It is said,
"That what this Lord did was by the King's command." Let him plead that in his defence, upon his
Tryal. But it is not imaginable he should, when a few
days before the Act was passed for the Poll-money for the
French War, &c. when we had the greatest assurance,
Royal Assent to an Act, that the King should give private Instructions in contradiction of that Act, is not a
thing to be imagined of the King. In the Bill of Attainder of Lord Strafford, "ne trahetur in exemplum," was,
that the Judges, by that Bill, should not learn from
thence a new Treason, to judge in their Courts by it.
"Not to draw it into example," is to be understood cum
grano salis. As no man living is more tender of blood
than I am, so I would do as I would be done by. And
if that had been practised by the Treasurer, this Impeachment had never been—Taking it for granted that this
is dubitable, whether he had the King's Command or
not, it is our duty to impeach him; in one way you may
miss the offender, in the other way he may have justice.
If the Lords judge it Misdemeanor only, you have a just
ground to take the help of the Law, when enormities
arise from great men. I hope they were never too great
for Parliament, and I hope never will.
Mr Finch.] The Question is, Whether the word
"traiterous" shall stand in this Article. I would not
have Gentlemen aggravate this matter. I say positively,
that, without using your declaratory Power in Parlialiament, this Article is not Treason. We are little obliged to those learned Gentlemen to put us upon those
explanations of Treason, to be snares to ourselves. Without such a ne trahetur, &c. all the Judges must, for the
future, judge so. And you have opened a gap to all the
Judges, &c. if you declare this Treason. There are no
accessaries in Treason, all are principals, and you may involve the noble Gentleman, Mr Montagu, in it. It is
said, "Several Gentlemen have known this some months
before," and if this Article be declared Treason, that must
be declared Misprision of Treason. I cannot agree with
the learned Gentlemen about Treason at Common Law.
They know how many snares there are in that CommonLaw-Treason, which does not only limit the Judges, but
Parliament itself. That Statute says, "Treason, or other Felony;" so it must be "Felony" at least before it
can be declared "Treason." 1 H. IV. Hall killed the
Duke of Gloucester, &c. and the killing John Imperial
were declared Treason, but the offences were Felony first.
I would have any man tell me whether ever any thing
was declared. Treason that was not Felony before. The
Statute 1 E. VI. and 1 Mary plainly repeals that power
declared and expressed in 25 E. III.
Sir Harbottle Grimstone.] This Gentleman is altogether
in a mistake. What he says is not applicable to the case
before you. He says, "it is dangerous to declare that
Treason which was not Felony before."—Taken down to
Sir Henry Goodrick.] "Traiterous design" in the Article, is the brand for doing the thing. It will require
great time to reduce this thing that the Treasurer is
charged with—From the time of the Prince of Orange's
Marriage there were great hopes of that Marriage. But
the States grew to a distrust of the Prince from the Lovestein party (that came from France.)—In Montagu's
Letters some of the Parliament are called, "Malecontents" (and in French they are called "Rebels in Hungary") to carry on the old design. It is our duty to
support Monarchy—I move "That the word "traiterous" may be expunged out of the Article; and that
"Misdemeanor" may only stand."
Mr Powle.] No man denies, that the declaratory
power of Treason by 25 E. III. is in Parliament; but it is
objected, "that it was taken away by 1 E. VI. and 1 Mary
&c." Those Statutes took away only all such Treasons
as were made since 25 E. III; but not the declaratory
power in Parliament. The Statute of banishing the
Spencers is printed under the name of Exilium Hugonis;
"1. They encroached to themselves Royal Power, taking the management of all affairs upon them." "2.
They defeated good Laws that were made." "3. They
took upon them putting persons out and into Offices;
particularly putting in Judges not conversant in the Laws
of the Realm." (Some called out "So was Baron Bertie,
the Treasurer's brother-in-law.") The King and the
Realm are named distinct in that Statute; and for these
offences they were banished. In the 11th of R. II, the
Duke of Ireland and the Archbishop of York—Lords appellants, &c. and the Commons joined in the Judgment:
They were judged upon Impeachments, relating to the
King's house, &c. and the Kingdom; sending Letters to
the King of France under the King's Seal. The Duke of
Ireland raised the Cheshire men, &c. and this was judged
"levying War against the King." These are the special Articles which were judged Treason. But there is
one case beyond all dispute—17 R. II. Sir John Talbot
conspired the death of the Duke of Lancaster; which was
judged Treason—But that offence, unless judged Treason in Parliament, was not so much as Felony before.
22 Hen. VIII, Richard Rose, Cook to the Bishop of
Rochester, put poison into the pot of pottage which his
Lord should have eaten. It took no effect upon his Lord,
but upon the poor people that were served with it at the
gate; which was judged Treason. The Holy Maid of
Kent, Elizabeth Barton, said, "If the King took' not
Queen Catherine again, he should die, &c." which was
declared Treason in her and all her accomplices—But I
would be tender in not letting Treason loose too frequently, lest we know not whom it may devour. Here
is no determination of the thing. Every man has his
Vote and Reason. I wish it may be otherwise. But now
I have told you my Reason how I shall give my Vote in
Serjeant Crooke.] The times of R. II. were troubled
times, but all those Judgments were repealed. Before
that excellent Statute of 25 E. III. there were varieties of
Treasons, as they were judged; but all Judgments, after
that Statute, were in Parliament, but generally offences
declared Treason were Felony before. The offence of
the Bishop of Rochester's Cook, in poisoning the poor
people, was Felony before. The great forty Articles
against Cardinal Wolsey were not proditoriè but ended all
in Præmunire, and mostly they were for causes ecclesiastical. But as for binding supreme Power in future Parliaments, without doubt, King, Lords, and Commons,
may do it. But whether proditoriè—That makes the
Judgment Treason. The case of Lord Strafford was
levying of War, &c. and that was alleged then, and
Lord Clarendon's case—When there are other crimes that
do strengthen the offences. There is not one declaratory
exercise of that power in Parliament, since 1 Mary. And
if I cannot be shown any, I move that the word "traiterous" may be left out of the Article.
Mr Leveson Gower.] I would not provoke the King,
by this way of proceeding, to govern by arbitrary Power
and an Army. I would know why the Committee have
not dispatched the Articles against the five Lords in the
Tower, that they may be tryed. (He was called, by many,
to the Bar.)
Sir Thomas Lee.] I will give Gower satisfaction why the
Committee has not dispatched the Articles against the
five Lords. The fright of an Army not to be disbanded,
when there was an Act of Parliament and Money given
for it, has hastened this Impeachment against the Treasurer. The leaving the word "proditoric" out of this
Article, is like leaving "felonicè" cut of an Indictment
of Felony. If you leave out the word "traiterously,"
the rest of the Article will prove but pepper and vinegar
sauce for roast beef: As was declared in the case of Sir
Samuel Barnardiston, for the malfesance of the Sheriff in
making a false Return.
The Question being put, Whether the word "traiterous"
should stand in the first Article, Sir John Lowther and the Compiler (fn. 8) were Tellers for the Yea's, 179; Lord Latimer and Mr
Coke for the No's, 144.
Little was said to the second and third Articles (fn. 9) .
Article 4. "That he is popishly affected; and hath traiterously concealed (after he had notice) the late horrid and
bloody Plot and Conspiracy contrived by the Papists, &c."
Mr Bennet.] This is only the difference between Coleman and the Treasurer, that Coleman dealt with the King
of France's Confessor about Money to bring in Popery,
and the Treasurer dealt with the French King's Ministers
for Money. The consequence whereof was a standing
Army and Popery.
(The Speaker said privätely to some of us, "That the
Treasurer was no more popishly affected than he was;
on his conscience.")
Lord Cavendish.] There is ground for this Article, by
what you have heard from Dr Tongue at the Bar.
Sir John Ernly.] From the 14th of August to September the Plot was not concealed, but was under the more
privacy for better finding it out, by the King's command
and the advice of Dr Tongue.
Mr Harbord.] That Gentleman, Ernly, knows that he
has signed several Pensions to Papists, by the Treasurer's
Order, and you yourselves shall see the Records of vast
sums paid in Pensions to Papists.
[Resolved, That the Lord Treasurer be impeached upon this
Article, 143 to 119.]
The rest of the Articles were not much contended (fn. 10) . [And
Sir Henry Capel was ordered to carry them up to the Lords on