were but a few Perfons to be entrufted with it, and those were generally Servants who attended on the Dutchefs's Perfon, and on Sir John Germaine. He hop'd it would be no Objection that they were Servants, for that were to fay they fhould prove the Fact, but fhould have no Witneffes, for these were Facts that could not be prov'd but by fuch as were concern'd with the Dutchefs: That the two principal Witneffes were Foreigners and Dutch People, and it was reafonable enough to expect Foreign Witnesses, when an English Dutchefs had a Foreign Gallant. They were fuch as he thought fit to entrust about her.

That Mr. Bayley was a Servant of Sir John Page 603. Germain's and came into Hoficr's Place when he was gone beyond Sea. He was an unwilling Witnefs because he had been preferr'd by Sir John Germain; and yet when he was upon his Oath in the Houfe of Lords, he gave an Account that while he was in Sir John Germain's Service, notwithstanding that publick Reproach in 1695, and 1696, the Dutchefs frequently came to Sir John Germain's Houfe with one Keemer, whom fhe had great Confidence in, and that when his Mafter lay from Home, he carried his Linnen to Keemer who was in the Dutchefs's Service, or Keemer came to him for it; and after the Dutchefs had been accus'd in the Houfe of Lords with such a Familiarity, any Evidence of a Converfation between them afterwards was as much as a Thoufand Witneffes; for no Woman that had valued her Reputation, having been accufed as fhe was, would have had any Converfation with Sir John Germaine afterwards.

Mr. Atwood's

Mr. Atwood, Council for the Duke, obferv'd Remarks on farther, that the two Witneffes Hofier and Vanesse the Evidence. did depofe that Susannah Barrington was privy to this adulterous Converfation, and that the was withdrawn fince this Bill was depending in the Houfe of Lords: It was prov'd alfo, that Mr. Daniel Germaine and Mr. Brian's Wife, who were privy to the fame Converfation, were in England lately.

Then

Then the Witneffes were called in, but their Depofitions are not given, as in the Folio, because it is faid to be the fame with that already taken before the Lords, except that of Anne Read's, which was new.

Anne Read depos'd, that in April 1692, foon Anne Read's after the Duke's Bill had been rejected in the Evidence. Houfe of Lords, fhe faw the Dutchefs of Norfolk go in a Chair to Sir John's Houfe; and that the Door being open'd, the went into the House with her Mask off: That within a Twelve Month laft past, or thereabouts, fhe followed him to the Dutchefs's Houfe about three of the Clock in the Afternoon, and that fhe did not fee him come

out.

The Witneffes being examined on the Behalf of the Duke of Norfolk, the Dutchefs's Council were call'd upon to proceed in her Defence.

Sir Thomas Powis faid, he was at a Lofs, and Sir T. Powis under fome kind of Surprize, to be call'd upon fo moves for fuddenly to make their Defence. He hop'd fince Time to they were pleafed to take that Cafe out of the make their ufual Way of Trials, and to try it in the first In- Defence. ftance, that they fhould have time to make their Defence. That fix Hours had already been spent in the Examination of the Witneffes, and they had given fuch a variety of Answers, that it afforded a great deal to be faid to it. That they had alfo a great many Witneffes to examine. They had a Week's Time allow'd them in the Houfe of Lords, but they did not expect that here; that was no Rule. But while they were at the Bar, a Perfon had given them Intelligence on fight of that Cook-Maid, that fhe was turn'd away for being a common Thief in Holland, and therefore they faw how neceffary it was that Time fhould be allow'd, and they could not make their Defence then.

The Committee infifling however that they fhould make their Defence immediately, Sir Tho. Powis obferv'd, That the Evidence given before the Committee, was very different from that given before the Lords, and offer'd to produce the Examinations of Witneffes before that Houfe: But

they

The Council they were not fuffered to be read; but the Counfor the cil were acquainted, That if they had any WitDutchefs not neffes Viva voca to encounter their Evidence, fuffered to they might produce them.

Read the Examinations in the H. of Lords.

Whereupon

enter upon Defence.

Whereupon Sir Tho. Powis faid, By this Refolution they were depriv'd of that Defence which he thought they would have made for her Grace.

Mr. Atwood anfwer'd, That the Examinations in the House of Lords were fo lately, that it was an eafy Thing for the Sollicitors who were by to give an Account of the Contrariety in the Evidence, if there were any.

A Member. Have you any other Evidence to offer as to this Point?

Sir Thomas Powis. All our Evidence tend to. they refuse to contradict thefe Witneffes; and if the Reading thefe Depofitions won't be allow'd, you will not put a bad Conftruction of it. I do not proceed to make a Defence; for I cannot do it, unlefs I had fome other Inftructions from my Client, so we must submit.

The Bill paffes the Commons,

A Member. Whether they have any thing to offer in Defence of the Dutchefs upon the Crime he is charg'd with; for, I believe 'tis a new Thing for Council when their Client is charg'd with a Crime, to fay, they cannot defend her, unless they go and afk whether they fhall defend her or No. If they have any thing to say in her Defence, we fhall be ready to hear it.

Sir Thomas Powis. I would be glad to make the best Defence this Cafe may bear; I have defended it twice with good Succefs, and this is a third time; and I must own to you, That the Courfe of our Evidence we did propofe to ourfelves, is fo far broke by the first Determination you were pleas'd to make, that I cannot venture upon the rest of the Defence. If fo be your Pleafure, be not not to admit this Matter.

The Council being withdrawn, the Committee proceeded upon the Bill Claufe by Claufe, and went through it, and ordered the fame to be reported. Whereupon the Bill was pass'd.

PRO

PROCEEDINGS between the KING, THOMAS KENDAL, and RICHARD ROE, in the KING'S-BENCH, on an Habeas-Corpus upon a Commitment for HIGH-TREASON, Mich. 7 Guil. 3. O&ob. 31.

1695.

T

HE Prifoners being brought to the Bar on Thursday the 31st of October, 1695, on an Habeas Corpus directed to the Keeper of Newgate, return'd the Caufe of their Detainer to be a Warrant under the Hand and Seal of Sir William Trumball, one of his Majefty's Privy Council, and Principal Secretary of State, as follows: Thefe are in his Majefty's Name, to authorize and require you to receive into your Cuftody, the Bodies of Thomas Kendall and Richard Roe, herewith fent you, they being charg'd with High Treafon, in being Privy to, and affifting the Escape of Sir James Montgomery, out of the Cuftody of William Sutton, one of his Majesty's Meffengers in Ordinary, and charg'd with High Treafon. You are to keep them in fafe and clofe Custody until they shall be deliver'd by due Courfe of Law. And for fo doing this fhall be your Warrant. Given at the Court at Whitehall the 24th of October, 1695.

Page 605. The Prifoners committed by the Secretary of State.

not commit.

Sir B.Shower's Sir Bartholomew Shower being Council for the Argument Prifoner, took Exceptions to this Return; for that that a Secre the Perfon Committing had no Authority for that tary could Purpose: He faid his Clients thought themselves hardly dealt withal, the Information against them being only for affifting the Escape of the Centinels. who were Privy to Sir James Montgomery's Escape; but this being a Fact of which the Court would not take Notice, he confin'd himfelf to the Return, and infifted, that a Secretary of State, quatenus Secretary, could not Commit for Treafon or Felony; he was not a Privy Counsellor, quatenus a Secretary, or a Juftice of Peace; for tho' in Fact he might be in the Commiffion, yet, unless he had taken the Oath of Office on a Dedimus, he could not Act as fuch.

Privy CounThe Law took Notice of Conftables, Sheriffs, fellor muft Coroners, Efcheators, and the like; but the Books take the Oath which treat of the Jurifdiction of Courts, the of Office be- Pleas of the Crown, or the Officers of Justice, forehecan act made no mention of a Secretary of State; his as a Juftice. Office rather related to Foreign Negotiations, than

Page 606. A Secretary cannot adAminifter an Oath, &c.

to Criminals, Prifoners, or Goalers. In all the Debates about the Liberty of the Subject, and wrongful Commitments in Parliament, in 4 Car. 1. 1628; and among all the Precedents there mention'd, there were none by a Secretary, tho' there were feveral per Mandatum Dom. Regis by Warrant from the Lords of the Council: And it feems ftrange, if fuch a Power was lodg'd in this State Officer, there fhould be no Precedent for it in thofe Times, when Extrajudicial and general Warrants were fo frequent, that they became a Grievance to the People, and fuch a one as laid the Foundation of the Petition of Rights.

A Secretary cannot Adminifter an Oath; and the Law requires, that no Man fhall be committed on an Extrajudicial Warrant, unless upon Oath : If there be but a Sufpicion, there ought to be Oath of the Caufe of fuch Sufpicion: For the Perfon Committing cannot Commit on another Sufpicion, unless there be Oath of fome reasonable Caufe for it; neither can a Secretary take Bail of the Per

fon