:

does not the king make sheriffs? And I know no reason but that the danger is in the one, as in the other. But to answer the precedent of Henry 4. One of the most learned books of the Crown Law, which is Stanford's, says, Magna Charta.' This does show that we are repealing one of the articles of Magna Charta of the laws of the kingdom. In parliament, the lords are the same, and no house of peers without the commons and it is not likely that there will be so much danger, when they are in being, of partiality. It is only those lords that will voluntarily appear; and none but friends will appear, and may be ready to acquit their fellow-malefactor. The ground of the Clause That twelve lords may conspire an unjust verdict.'-I suppose the lords may conspire. It seems to me to provide an impunity to the lords, and this is as near to it as can be. The government may be ruined for want of justice in the intervals of parliament-We must suppose that a lord steward will impannel so many as to take a man away-What is a man the better, if he be hanged for one sort of treason as well as another? It is dangerous to the government if they misbehave themselves. It is altering the ancient law of the land, under which the lords and we have prospered; and I would disagree.

lord, for he is, by his commission, to summon so many as he thinks fit, which may be but thirteen-and may not any innocent man's life be in danger? The greater he is, the more power he has, and may have seven lords of his party and it subjects some lords to the willThis is that judicium parium provided in and pleasure of seven. It has been said, If all the peers be summoned, none will come, but only such as will acquit him, as his allies, &c. But the peers are finable, if they do not come, as any common jury is. The danger is not at present, when we have a wise and good prince upon the throne, but there may be a Henry 6, governed by his lords. I have not heard any objection, that this weakens the government, but that all the peers summoned will not come:' but they forget to tell you that they may be amerced. We do not find that relations were so prevalent in lord Stafford's Trial. But one Howard of six or seven that were his Judges, found him Not Guilty; and will a peer expose himself to contempt for this? There is no reason not to agree with the lords, unless this: that, if we do not agree, the Bill may be lost. Let any man show me any proposition in the bill that renders the government unsafe. There is nothing in it, but to render an innocent man safe, and it does not weaken the government. It makes it more hard to condemn an innocent man, and acquit a guilty. Mr. Attorney Treby. I am against the Clause, though I am fond of the Bill. I hear it challenged, that this Clause does not weaken the government. I think the Clause does weaken the government. It is the removing of an ancient land-mark, and an article of Magna Charta. It is setting up a new court for Trial of peers. We are to redress grievances here, and, as if the lords have not privilege enough, to give them more! We shall not have the thanks of those we represent. The grievance is rather at the bad execution of the law, than the law itself. By 33 Hen. 8, all are to be tried by freeholders, and yet, in spite of that law, the Judges have declared otherwise. As soon as the prisoner has his papers, if the court take them away, (as in College's Case) he will have little benefit of the copy of his Jury, or Indictment. It is a great mistake alleged, That it is in the power of a lord steward to summon as many as he pleases.' By law, no man but must be found by at least twenty, who must proceed on his Trial. It was the earls of Essex's and Southampton's Case. But it is said, A commoner may challenge, but a peer not; but this Bill helps them not, but lets in all that will come. They magnify themselves to give their verdict seriatim. It was once thought a great privilege by the lords, but now a burden-It is objected, That it is in the power of the king to make a lord steward, and he may be an ill man;' but, on the other side,

*Four of the Howards, his kinsmen, condemned him. Lord Arundel, afterwards duke of Norfolk, though in enmity with him, did acquit him." Burnet.

|

Col. Granville. I think the lords tell you right; That this Clause tends to the scope of the Bill, and that it preserves the government to keep each part of it as free and independent as you can.' The lords must upon all occasions, join with the crown, when there is a design to debase the privilege of the people. A lord knows not how to speak his mind freely in parliament, when twelve of the king's servants shall hang him, when he is out of these doors. Consider that the Judges that gave those corrupt judgments were durante bene placito, and did what the king commanded them. I hope, that, by this Bill, the lords may act free when they come to give judgment. All the arguments incline you to this Clause; and, I think, there is only an obstinacy against it. (Excuse the expression.) I find gentlemen that were against the whole Bill are against this Clause, and I would agree with the lords.

Sir Christ. Musgrave. I look upon the reasons, on both sides, to be the lighter, and the best reserved for a free Conference. If gentlemen are inclined to agree with the lords, they may do it upon a free conference with the lords. I see, by one influence from court, one precedent of hardship, I can give more instances of hardship in parliament than out of parliament. In lord Delamere's Trial there were no lords of that Jury, but what were actually in the king's service, and no reason to object hardship. There is but one instance, 15 Edw. 3. The lords obtained an Act, That no lord should be tried out of parliament;' but it was so dangerous that it passed in Easter, and was repealed in October. This law may be proper, but not in this conjuncture. We are

not now to give a greater impunity that formerly. The lords command your words by Scandalum Magnatam, and your estates by judicial authority, and I hope you will not inake them bigger than the crown, by this way of trial.

Sir Thomas Littleton. I was against this Clause before, and so I am still. I observe, that there was a time when the lords might have had this Bill, and at a time when the government laid their hand upon them, and not so much justice then to be expected as now to be depended upon. A thing may be right at one time, and not at another. There is no pretence, or suspicion, under this government, but why should not this Trial be for felony, as well as treason, as if they would shelter themselves against the government in so dangerous a time as we are in?

Sir Francis Drake. Here is a plain mistake. The last Friday we were informed he had such a pass*. I move, that he may have the protection of the house. One person (Crone) was hanged upon this man's evidence, and the ministers of state have let the rest alone. Fuller has done service, and I hope he may have the countenance of this house in an address to the king for his protection, and those to come over.

Sir Ch. Sedley. I would send for this fellow again, to know what he would have to bring these men, whether a yacht, or by messengers.

Sir John Dorrel. Fuller says He had a Passport but for one person to go over to Flanders;' and it is said, He had a Protection as great as could be granted, and a Passport for these two persons.'

Sir Francis Blake. These two contradictions seem to me very odd. I would understand it.

Mr. Arnold. On Friday the house was led into a mistake by that passport. Other members affirmed, That he had a passport;' as you, Mr. Speaker; and I would have them explain themselves.

Sir Christ. Musgrave. I know not what protection this house can give. The protection these gentlemen stand in need of, is no less than a pardon. People will laugh at us without doors. We have no Protection but for ourselves. If he will not be satisfied with the king's protection, he will be satisfied with nothing.

any other place, hither, to give their Evidence: and for their safe Protection, while they are here; and their safe return if desired. And he was called in again, and acquainted therewith t."

In a letter to the Speaker.

"There are two persons, who will not only discover what has been done formerly to betray the government, but what is doing at pre- Resolved, "That an humble Application be sent. I desired six or seven members advice made to his majesty, That he will please to and direction to bring them over in safety; but grant to Mr. Fuller a blank Pass for two pernot having provision, I desired of those gentle-sons, for their safe coming from beyond sea, or men mentioned, that I might have passes for then; and I am assured, those two persons are ready, when care is taken to bring them over speedily and safely. The matter I am sure of, and I doubt not, but all gentlemen here are as willing as I desire it. I received assurance from thein by word of mouth. The messenger that I sent, is not to come over again, I had a blank passport for one gentleman, and that gentleman got off without the passport, and I have it by me. Those now in the Plot against the king are very considerable; and few of them but what are nettled, and they watch these persous, and a single passport is not security for their lives. The protection I would have for these gentlemen, should not be sent in the Packet-Boat: and if they deserve not their pardon, they will not desire it. The passport I have had, is for a person to go over to England. (He reads the passport). I did not send to lord Sidney* for a pass, because I was assured the persons would not come over till this honourable house would protect them. I have exposed my life as much as any man for the king's service, and I have flattered the French king in his closet." [He withdrew.]

Secretary of State, afterwards created earl of Romney. VOL. V.

+ About six weeks after this, (February 20) Fuller was ordered to attend the house, with the persons mentioned by him; but he pretending to be ill, and not able to come abroad, several members were ordered to repair to him, to secure his Papers, and to take his information upon oath. February 23, Fuller's examination was presented to the house, and read; and he mentioning Mr. James Hayes, and col. Thomas Delaval, as the two Witnesses of which he had informed the house, several members, attended by messengers, were ordered to go to the places directed by Fuller, and bring the said persons with them. They went, but found no such persons as had been described to them; whereupon Fuller was ordered to produce them himself, and also one Jones; which he not being able to do, the house unanimously declared, "That Mr. Fuller is a notorious Impostor, a Cheat and a false Accuser; having scandalized their majesties, and their government, abused this house, and falsely accused several persons 2 Y

Debate on a Motion for farther Supply.]| Jan. 11. Sir Robert Cotton. I move for a Subscription of the Members, for a Fund to raise Money.

Sir Charles Sedley. They that have good estates may spare out of their pensions for their offices 500l. per ann. and those that have not, 500l. per ann is enough for them.

Sir Edward Seymour. I observed once, That this was a well-officered parliament.' If the methods of their bounty be brought into example, the next year will be upon land in general. I did hope that gentleman, that brought us into this expence, would belp us out. Nothing can be of worse consequence than to multiply taxes. When the usurer has the advantage of the taxes, and not the public, gentlemen may live long enough to be mistaken. It is your interest to make this tax as equal as you can. I shall make you a proposition to raise this money by a Poll-bill. I see nothing proposed, but what touches some particulars. If you had proceeded in a parliamentary method, you should have considered your abilities before you had engaged the king in a war. There needs no argument better to consider the poverty of the nation, than so many private bills, and the lowering of interest. I propose a Poll-bill, because of the great inequality of the tax, when it falls wholly upon the landed man; a general quarterly bill of 12d. a quarter and all gentlemen 12s. a quarter. I do say, twenty to one in England paid not a farthing tax. This will come in quarterly, and there will be no need of borrowing money. Since we are come into a war, we must get out of it as well as we can. By this you avoid interest, and all other objections.

"The house being wearied" says, Mr. Grey, "with Propositions, this took."

Report of the Free Conference respecting the Bill of Trials.] Jan. 13. Mr. Charles Montagu reported the two free Conferences with the lords, concerning the Clause added by the lords to the Bill for regulating Trials, in cases of Treason, as follows:

"That the Members of this house, who were commanded to manage the free Conference with the lords, on the 5th inst. did attend their lordships: That the Conference was begun by the managers of this house; who did acquaint the lords, That the commons had desired this free Conference, in order to a good correspondence with their lordships. That the inclination which the commons have to continue that good correspondence, which as yet has been happily maintained between the two houses, was sufficiently expressed by their pro

ceedings in the whole progress of the Bill. That this Bill was begun by the commons for the equal advantage of such lords, or commoners, who had the misfortune to be accused of treason, or misprision of treason. That, when it was first returned from their lordships, it came down with very many Amendments; and the commons were so very willing to comply with the desires of their lordships, and to give the Bill a speedy passage, that they agreed to all those Amendments, except the two last; though some of them were of a very nice nature, and related to things of which the com mons have ever been most tender. That, at the first Conference, the commons gave their lordships the Reasons that induced them to make those two Amendments; which did so far satisfy their lordships, that they did agree to the first Amendment proposed by this house, though they did insist on this other, for which they delivered their Reasons at a second Conference. That the Reasons had been solemnly and deliberately considered by the commons; but they had not found them sufficient to convince them; and they did still disagree with the lords in the Clause marked A ; and did insist upon that disagreement.-And your Managers told them, It was very unfortunate, that no Bill for the relief of the subject, in these cases, had been tendered for many years last past; but either this Clause, or something of the like nature, had unhappily clogged it, and been the occasion of losing it; and that, as this was never thought reasonable to be admitted formerly, upon any account, so neither can the commons now consent to so great an alteration of our constitution as this would introduce. That such an alteration is far beyond the intent and design which the commons had in preparing this Bill. They were desirous that all men should have a fair and equal way of making their defence; they wished that the guiltless should, by all necessary provisions, be protected, and be allowed all just means of making their innocence manifest; but they did not design to subvert the essence and constitution of the courts; they did not intend to disable the crown, in one of its most necessary prerogatives, or to place a judicature in other hands than those to whom the laws of England, and the customs of the realm, have committed it. But the Clause, now in dispute, strikes at no less than this, and, in consequence, at the alteration of the government of England.— That the government of England is monarchical; and the monarch has the power of constituting courts, and officers, for administration of justice. Though they are to proceed according to the known rules and limitations of law, the judges are constituted by his commission; the sheriffs are of his nomination and appointment, who are to return the pannel of jurors; who are to pass on the lives of the commoners: And, in like manner, it is the prerogative of the crown to constitute a lord high steward, who, by his serjeant at arms, does summon a competent number of peers

to

be triers of their lordships. But this Clause
would erect a judicature independent of the
crown. That the experience of past times has
not contradicted that opinion of the honour
and integrity of the lords, which the commons
have received. That their design, in passing
this Bill, was, to prevent those abuses in Trials
for Treason, in inferior courts, for the future;
by means of which, during the violence of late
reigns, they had observed divers had lost their
lives. That the things to which the Bill ex-
tends are of such a nature, that, except only
in one instance, that is the time of the delivery,
of the copy of the pannel, (for it was agreed,
even in lord Russell's Case, that the subject
had a right to the copy of the pannel) the lords
have an equal benefit with the commons.
That the commons did not observe, that the
Clause sent down by the lords docs relate to
the like grounds of complaint. No instance
can be given of any peer who suffered during
the late reigns, from whence a just cause of
objection might arise to the present method of
trying peers. The only two persons prosecut-
ed came off, though pursued with great vio-
lence; the one, because the grand jury could
not be prevailed on to find the Bill; the other
was acquitted upon his trial by the justice of
the peers. By all the circumstances of that
Trial of lord Delamere it is manifest, that if
there were any unfairness in that method of
trial, it then would have appeared. The vio-
lence of those times was such, that the com-
mons were not protected by that innocence
which has since been declared in parliament;
yet then lord Delamere was acquitted, by the
justice and honour of his peers; and it may
seem strange to future ages, that the commons
should be contented that the method of trials
should be continued, which was not sufficient
to protect their innocence, and their lordships
alter that which has proved a bulwark to their |
lives. That the commons also think the
Clause to be of a different nature from the Bill;
because the bill does not make any alteration
in the constituting of the court, or in the natu
of the trial; but the commons apprehend, nat
this is done by the Clause. The court is no
longer constituted by the precept of the lord
high steward, who receives his commission
from the crown; but the whole order of peers
have a right to make up the court · and all
the friends, the relations, and th accom-
plices of the person are to be his triers.-
That there is another great alteration in the con-
stitution of the court, as the clarse is penned.
This method, prescribed by the Clause, is for
the Trial of every peer; and ev. v peer, who
has a right to sit and vote in parlament, is to
be summoned, and may appear and vote. Now,
it is agreed, by the most learned authors, that
the lords spiritual are peers: this is certain;
whoever would go about to defend the contrary
opinion, would find it difficult to answer the
several Records of Parliament, and other au-
thorities, where this point is asserted: The well
known claim in parliament of archbishop Staf-

ford, in the reign of Edw. 3: The famous Protestation 11 Richard 2, when the Bishops thought fit to absent themselves from parliament, because of matters of blood to be argued there; wherein their right of peerage is directly asserted: and this Protestation, being enrolled at the desire of the king, and with the consent of the lords and commons, seems to be of the nature of an act of parliament: and if the Law Books may come in for authority in such points, there are Cases where the pleas of bishops, as peers, have been judicially allowed.—So that this Clause does directly let in the lords spiritual to try, and be tried, as other peers, who are noble by descent. Not that the commons are dissatisfied with this, if this were the only matter. The lords spiritual, in all probability, by their learning and integrity, would greatly assist at the Trial of peers; and the commons are well enough disposed to let in those noble prelates to any privileges, in point of Trials, which shall be proposed by the house of peers. But this is urged to make good the position laid down before; that, by this Clause, the constitution of the court is quite altered; it having been taken for law, that the lords spiritual are not to be tried as other peers, or to be present, or vote, at the Trial of any other peers, at least out of parliament: for, as to their right in parliament, how far they are restrained by their Canons agitare Judicium, how far those Canons have been received in England, and what the usage of parliament has been, is not the present business.-That, had this Bill come first down from the lords, and the commons had added a Clause, That no commoner should be tried for Treason, but before all the 12 Judges, and by a Jury of 24 persons, and to have taken away all challenges for consanguinity (which, if it be considered, is somewhat of the nature of the lords Clause, though it does not go so far;) if the lords had thought fit to have used the same reason for disagreeing to such a Clause as the commons have done in the present case, That it was far different from the design of the Bill;' the same Reasons which the commons received from the lords, at the last Conference, if they had been delivered by the commons, would not have been convincing to their lordships.-That the com mons observed, that the lords, in this Clause, or in their Reasons, have not stated any cause of objection to the present method of their Trials, and therefore the commons wonder that the lords (as they express themselves in their Reasons) should conceive that they were distinguished so as to be more exposed in their Trials than the meanest subject;' since the commons do not find but that they enjoy this great and high privilege (upon which so great a value has been justly put) as fully as ever any of their noble ancestors did.-That it is by this privilege that the body of the peers has been preserved so long. If any lord, at any time, should be disposed to expose himself in defence of the common liberties of the people, the commons are a security to him against being oppressed by false accusations: twelve of them must agree