House of Commons Journal Volume 10: 13 January 1692

Mercurii, 13 die Januarii; 3° Gulielmi et Mariæ.

Prayers.

Earl of Salisbury's Estate.

AN ingrossed Bill from the Lords, intituled, An Act for the better securing the Portions, Debts, and Legacies, given and owing by James late Earl of Salisbury, was read a Second time.

Resolved, That the Bill be committed to Sir Wm. Forrester, Mr. Foley, Mr. Dolben, Sir Christopher Musgrave, Mr. Chadwick, Mr. Pollexfen, Mr. Pitt, Mr. Bennett, Sir Jos. Tredenham, Sir Wm. Cooper, Mr. Freeman, Sir Thom. Darcye, Mr. Dyott, Colonel Titus, Mr. Christie, Mr. Burdett, Mr. Onslow, Sir Rob. Edon, Mr. Colt, Mr. Harley, Mr. Mountague, Sir Jonath. Jennings, Sir Edward Abney, Mr. England, Mr. Sherrard, Mr. Bowyer, Mr. Biddolph, Sir Rob. Henley, Mr. Cary, Mr. Hedger, Sir Rob. Cotton, Sir Wm. Cooke, Mr. Bertie, Major Vincent, Mr. Hawtry, Mr. Waller, Mr. Buscawen, Mr. Slater, Sir Fra. Massam, Serjeant Trenchard, Sir Cha, Bloys, Sir Tho. Littleton, Sir Wm. Lemon, Sir Peter Collyton, Sir Jos. Herne, Mr. Howard, Mr. Piggott, Mr. Bockenham, Mr. Speake, Mr. Hutchinson, Mr. Wharton, Sir Tho. Pope Blunt, Mr. Boyle, Sir John Bolles, Mr. Gray: And they are to meet this Afternoon, at Four of the Clock, in the Speaker's Chamber:

Shelton's Estate.

An ingrossed Bill from the Lords, intituled, An Act to enable the Sale of several Lands for the Payment of several Debts and Legacies of Maurice Shelton, and others, and for settling other Lands, instead of them, was read the Third time.

Ordered, That the Bill do pass: And that the Title be agreed to.

Ordered, That Mr. Fenwick do carry the Bill to the Lords; and acquaint them, That this House hath agreed to the same, without any Amendments.

Leave of Absence.

Ordered, That Leave be given to Colonel Francis Pawlett, to go into the Country for a Fortnight, for Recovery of his Health.

Militia.

A Bill for the raising the Militia of this Kingdom, for the Year 1692, although the Month's Pay formerly advanced be not repaid, was read the Second time.

Resolved, That the Bill be committed to Sir John Guise, Mr. Lutterell, Sir John Moreton, Mr. Stowell, Sir Rob. Davers, Sir Tho. Roberts, Mr. Dyott, Colonel Titus, Mr. Hutchinson, Mr. Chadwick, Mr. Slater, Sir Christopher Musgrave, Sir Rob. Henley, Sir Tho. Clarges, Mr. Hunt, Mr. Travers, Mr. Bowyer, Colonel Sackvile, Sir Cha. Bloys, Mr. Biddolph, Mr. Fenwick, Sir John Brownlow, Mr. Blowfeild, Mr. Speke, Sir Cha. Wyndham, Sir Rob. Darcye, Mr. Beddingfeild, Mr. Bulkly, Mr. Archer, Mr. Foley, Mr. Waller, Mr. Christie: And they are to meet this Afternoon, at Four of the Clock, in the Speaker's Chamber.

Ordered, That the said Committee do prepare and bring in a Bill for the better settling the Militia, for the Service of their Majesties and the Kingdom.

Supply Bill; Duty on Low Wines.

A Bill for the better ordering and collecting the Duty upon Low Wines and Strong Waters, and preventing the Abuses therein, was read the First time.

Resolved, That the Bill be read a Second time.

Making Saltpetre.

A Bill for the Encouragement of making Saltpetre here in England, was read the First time.

Resolved, That the Bill be read a Second time.

Conferences on Trials for Treason.

Mr. Mountague, according to the Order of the Day, reported the Two free Conferences with the Lords upon the Bill for Regulating of Tryals, in Cases of Treason; as followeth.

That the Members of this House, who were commanded to manage the free Conference with the Lords on Tuesday the Fifth of this instant January, did attend their Lordships:

And 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 Inclinations which the Commons have to continue that good Correspondence, which has yet been happily maintained between the Two Houses, was sufficiently expressed by their Proceedings in the whole Progress of the Bill.

That this Bill was begun by the Commons, for the equal Advantage of such Lords, or Commons, 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 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 Commons 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 their First Amendment proposed by this House; though they did insist upon this other, for which they delivered their Reasons at the 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 that 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 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 Innocency 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 Custom of the Realm, have committed it.

But that 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 monarchial: And the Monarch has the Power of constituting Courts and Officers for Administration of Justice. Though they are to proceed according to 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 Panel 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 Tryers of their Lordships.

But that this Clause would erect a Judicature independent on 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 Tryals 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 extends are of such a Nature, that, except only in one Instance, that is, the time of the Delivery of the Copy of the Panel (for it was agreed, even in my Lord Russell's Case, That the Subject had the Right to have the Copy of the Panel), the Lords have an equal Benefit with the Commons.

That the Commons do not observe, that the Clause, sent down by the Lords, do 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 . . . present Method of trying Peers.

That the only Two Persons prosecuted came off, though pursued with great Violence; the one, because the Grand Jury could not be prevailed on to find the Bill: The other was acquitted, upon his Tryal, by the Justice of his Peers.

That by all the Circumstances of that Tryal of the Lord Delamere, it is manifest, That if there were any Unfairness in that Method of Tryal, it then would have appeared: The Violence of those Times was such, that the Commons were not protected by that Innocency which has since been declared in Parliament: Yet then the Lord Delamere was acquitted by the Honour and the Justice of his Peers: And it may seem strange to future Ages, That the Commons should be contented, that the Method of Tryals should be continued, which was not sufficient to protect their Innocency; 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 Nature of the Tryal: But the Commons apprehend, That this is done by the Clause.

That 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 the Accomplices, of the Person are to be his Tryers.

But that there is another great Alteration in the Constitution of the Court, as the Clause is penned: This Method, prescribed by the Clause, is for the Tryal of every Peer: And every Peer, who has a Right to sit and vote in Parliament, is to be summoned; and may appear and vote.

Now it is agreed by the most learned Authors, That the Lords Spiritual are Peers:

That 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 Authorities, where this Point is asserted:

The well-known Claim in Parliament of Archbishop Stafford, in the Reign of Edward the Third;

That the famous Protestation 11 Rich. II. when the Bishops thought fit to absent themselves from Parliament, because of Matters of Blood to be agitated there; wherein their Right of Peerage is directly asserted: And this Protestation, being inrolled 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, that if the Law Books may come in for Authorities in such a Point, 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 Tryal of Peers: And the Commons are well enough disposed to let in those noble Prelates to any Privileges, in point of Tryals, which shall be proposed by the House of Peers: But that 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 Tryal 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 Use of Parliaments 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 Twelve Judges, and by a Jury of Twenty-four 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); That if the Lords had thought fit to have used the same Reason, for disagreeing to such a Clause, as the Commons had done in the present Case, "That it was different from the Design of the Bill;" That 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 Commons observed, That the Lords, in the Clause, or in their Reasons, have not stated any Cause of Objection to the present Method of their Tryals: And therefore the Commons wonder, that the Lords (as they expressed themselves in their Reasons) should conceive, that they were distinguished, so as to be more exposed in their Tryals 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 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 to find a Bill, before he can be inindicted: And that Bill cannot be found, but upon the Oaths of Two credible Witnesses.

That the Commons look upon the Method of Tryals which the Lords would alter, to have been as ancient as the Constitution of the Government.

That it appears in the Year Books, to have been practised in the First Year of Henry the Fourth, and to have been well known at that time.

That indeed, it cannot be supposed to have been an Innovation then: The Lords, who had just before deposed King R. II^d, were too great to suffer such an Innovation; and Hen. the IV^th''s Title was not sufficiently established to attempt it.

That the Reason, Why no elder Instances of Proceedings before the Lord High Steward are to be found, is this; That this very Henry the IV^th, when Duke of Lancaster, was the last High Steward who ever had any fixed Interest in the Office: So that the Office being so long since ceased, all the Records are lost; and the very Nature and Power of the Office, except in this Instance of Trying of Peers, and determining Claims at Coronations, is lost: But, since that Time, the High Steward being only pro unica vice, the Proceedings are commonly transmitted into other Courts; and so come to be found.

That the Commons observed, That, if there be any Objection to that Method of Trying of Peers, it must be founded on a Supposition of Partiality and Unfairness in constituting of a High Steward, or in the High Steward himself, and the Peers summoned by him: And the Commons are unwilling to enter into such kind of Supposals.

That, as to the partial Constituting of a High Steward, if that may be supposed, it is an Objection to the Constitution, which intrusts the Crown with the Administration of Justice: That Supposal may as well extend to the constituting the Judges, and the Sheriffs, and every other Part of the Administration: And that if, upon such a Supposal, or Distrust, the Remedy must be, to take that Part of the Administration out of the Crown (as is done in this Case); the same Reason must carry the thing so far, that the Nature of the Government will be altered.

As to the Partiality of the Lord High Steward, and the Peers; the Commons are unwilling to suppose, that it is possible, that Twelve Peers should be ever found (for that Number must agree, or the Person accused is safe) who can so far forget their Honour, and the noble Order they are of, as, for Revenge or Interest, to sacrifice an innocent Person:

But, that if the Lords will suppose, that such a Number of Peers may be capable of being engaged in so ill and so dishonourable Things; then the Commons think themselves excused, if they suppose, that other Passions and Motives may also prevail upon the Peers; that such as Pity in Friends, Partiality in Relations, and the Consideration of their own Safety in the Case of Accomplices: That most Men, and especially Englishmen, enter unwilling into Matters of Blood.

That the most indifferent Peers will be most likely to absent themselves, either from a Consideration of dissatisfying the Crown, on the one hand, or drawing on themselves the Mischiefs of a Breach with the Family of the Person accused, on the other (for it is to be observed, That a Restitution of the Family follows generally in a short time); or, at least, the Love of Security, and Care of not engaging too far: For these Tryals (which, for the most part, happen in unquiet and troublesome Times) will keep indifferent Men away:

But that the Care for a Friend will not fail to bring Friends to the Tryal: The Concern to preserve their Family from that Stain, will bring Relations: And, if there be any Accomplices, they must be ready, for their own sakes, to acquit the Accused: And that probably their Number must be considerable in these Cases: For it is not to be imagined, that a Lord can enter into those base and detestable Actions, which may be performed by single Persons; such as poisoning or assassinating the Prince.

That the Treasons, which it can be imagined that Lords may be engaged, may be such as arise from Factions in the State; in which many must be engaged: And, if some Accident discover sufficient Matter for a Charge against one of the Party, the rest who are concealed still, will have as good Right to try their Confederate, as any indifferent Lord; and no doubt but it is their Interest to acquit him: And how far, at some times, this alone may go towards turning the Scale of Justice, may deserve to be considered; especially in Times which may happen hereafter, because they have happened heretofore) when there may be several Titles set up to the Crown, and great Parties formed.

That this is a Law which is to have a perpetual Continuance: And that the same Loyalty, Wisdom, and Zeal, which appears now in their Lordships, should be derived down to all their Posterity, is a thing rather to be wished than depended upon.

That if therefore the Clause has a Tendency towards letting in an Impunity for Treason, the Commons look upon themselves as justified in disagreeing to it:

For that they think it obvious to every one, of what Consequence it will be to the Constitution, if such a Body as the Peers, who have already such high Privileges of all Sorts, should have Impunity for Treason added; and what that must naturally end in.

That the Commons agreed with the Lords, That a good Correspondence between the Two Houses is of Necessity, for the Safety, Honour, and Greatness of the Nation; and can never think, that it is to be interrupted by their refusing any thing which may endanger the Constitution; assuring them, the Commons will never fail in improving the true Interest of the Lords: But they persuade themselves, that the Lords will be of Opinion, That, to introduce any thing which tends to an Impunity for Treason, is neither the true Interest of the Crown, the Lords, or the Commons.

That the Managers for the Lords, who spoke at this Conference, were the Duke of Bolton, the Marquis of Hallifax, the Earls of Pembrooke, Mulgrave, Stamford, Nottingham, Rochester, and Monmouth.

That the Substance of what was said by the Managers for the Lords was, That the Lords were sorry to be of any Opinion different from the Commons, especially in a Clause of so great Importance, which did concern not only their Well-being, but their very Being: That they had not differed from us in any thing propounded for our Security; and hoped we would have the same Consideration for theirs: That nothing was so proper for a Parliament as to provide Defences for Innocency in ill Times. Necessity, in good Prudence, puts us upon it. And though there were good times, in respect of the present Government, they may say, they are unquiet and unsafe: And What but a good Prince will ever pass such Laws as these are? This is the most proper Time to provide for the Subject. For a good King would be willing, not only to protect them while he lives, but to provide for their Security after his Death.

That this concerned not only themselves; and therefore they would speak the more freely: It is too narrow a Consideration for a Parliament to seek only our present Ends: Our Ancestors had further thoughts: And they did not doubt but we should have so too. This Clause is not for the Lords sake alone: There can no good be done in Times of Trouble, and Invasion of Rights, but by Agreement of both Houses: There must be a Concurrence of the greatest Part of the Lords, and the greatest Part of the Commons to maintain the Government of England: There may come a Prince, when we are dead and gone, that may endeavour to invade the Liberties of the People: And then the Commons would be glad to have the Concurrence of the Lords: And desired we would consider, in such a Case, Whether it would not be a great Discouragement for the Lords to act; unless they might be as secure, at least, as the Commons: And there may be such Princes. Is it fitting, That Part of the Government, which is so necessary in their Concurrence, should be under such Terms for their Lives, that they dare not oppose them with Vigour; nor act; because they lie under Shackles?

That the Lords would do what was just, though this Clause should not pass: But they would be loth, that those Lords, that are eminent for their publick Service, should be eminent for their Sufferings for it.

That, in the Case of Impeachments, which are the Groans of the People, and for the highest Crimes, and carry with them a greater Supposition of Guilt than any other Accusation, There all the Lords must judge: But when there comes a private Prosecution, which may proceed from the Influence of particular Men; Then a Lord lies under the Hardship of being tryed by a few Peers, chosen to try him; when all the People may sigh and wish for him: But such a Clause would do him more good.

That, suppose an ill Minister should apprehend an Impeachment in Parliament, What manner of way could that man hope better to come off by, than by being tried before a Parliament sits; where his Judges may be chosen so partially, as he shall come off; and it shall be said, no Man can legally undergo two Tryals for the same Offence?

That this way of Tryal was not ancienter than Hen. the VIII^th. That it was brought in then to take off those that he did not like: That in his Time, the Duke of Buckingham was taken off, in this manner, by Cardinal Woolsey: That Anna Bullein was condemned by her own Father: And afterwards, a Party was chosen to condemn the Duke of Somersett, and the Duke of Northumberland. That the Case of the Earl of H. I. H. IV. is no good Case, nor truly reported; for the Parliament Rolls, 2 H. IV. mention his being beheaded by the Rabble in Essex.

That this does not alter the Constitution any more than as, in some Sense, every new Law may be said to alter the Constitution: And the Commons say it is altered; because, formerly, it was by a set Number; and now all must appear: That does not seem to alter the Constitution; for the High Steward Now may summon them all: The Lord High Steward formerly summoned the Court; he summons it still: The Nature of the Court is not altered by the Majus or Minus, any more than the King's Bench ceases to be the same Court, when there are Three or Four Judges in it.

That though this Clause did not, as was said, pursue the End of the Bill; yet either House has a Power of adding what they think may make it better: And though this is not of a different Nature, there have been Instances of Additions of different Natures: But this is so far from it, that it agrees entirely with it, and is as suitable and neccessary as any Part of it.

That the Commons were not well satisfied, when the Commissions of the Judges run durante bene placito: And could it be thought reasonable, that the Lords who are the supreme Judicature, should not stay in their Lives, quamdiu se bene gesserint?

And, that though the King does now appoint the Sheriffs, it was not always so: And, since the Crown has made them, the Commons have this for their Security, That they may challenge Thirty-five of the Panel, peremptorily; and all the rest, for Cause.

But that the Judges and Sheriffs are made before the Crime committed; so that it is impossible for the Judges or Sheriffs to have a Prejudice against any Man: But the Lord High Steward is appointed after they know the Prisoner; and he shall be tried according to the Humour of the Times they are in. There may be Lords inclined one way and the other: But, in this Case, there is a strong thing joined with this Passion; which is, their making their own Fortunes by serving the present Times.

That, since the Tryal of Peers, in Time of Parliament, must be by the whole House, Where is the Inconvenience, that at all times they should be tried as in Parliament? It is a little Favour the Lords ask in this Clause, considering the Privilege of Parliament, for Three Years last past, has been always subsisting, and is like to continue so during this War: So that the Objection is taken away as to the present Government: For they will have the Advantage of a Parliamentary Tryal: And possibly, in Times to come, there may be an Inquisition for what is done now: And it will be well to have the fairest way of Proceeding in that Matter.

That, in the Case of the Lord Delamere, several Lords were then in Town; and there were a great many of those Lords not chosen: And it is a great Question, Whether that noble Lord had come off as he did, if he had not received such Notice from the Grand Jury, and every thing had not been made out so plain.

That the Argument used by your Managers, "That they could not allow any thing that tends to any Impunity," is a very large Assertion; and may be an Argument against the Bill; because it may happen, that, by giving a Copy of the Indictment, and Witnesses being upon their Oaths, a guilty Man may escape; and then he has an Impunity. This is not intended: All that can be done in these Cases is, to put in such reasonable Caution, and so far, as a Bill can provide for.

That this Clause could not extend to the Bishops; for it relates only to Tryals out of Parliament; and they are only Peers in Parliament, where they take their Privilege to hear, and then go out again, and do not vote in Blood: And, by the Word Peeress, it must be understood of such Peers only, as are Peers in respect of their Blood.

That the Lords were of Opinion, That Peers were sufficient to condemn a Peer: But this makes no Alteration in the Argument; for there is not much more Difficulty in getting Twelve than Seven: Indeed, there might be a great Difference, where a Crown or Government was not concerned.

That the Excellency of a Jury is, That they are taken ex vicinato: What is the Reason of this? Why, in case of false Witnesses, it is his Neighbour that is to save the Man: But what Security have the Lords, when Lords are picked out to try them, who are not of their Acquaintance; and the Lords who know the whole Course of their Lives to be contrary to what is sworn against them shall not be chosen?

That it is implied by the Commission of the Lord High Steward, That all the Peers should be summoned; for, by his Commission, all the Peers of the Realm are commanded to attend upon him, and be obedient to him: So that the King does not only give Liberty, but seems to command it.

That the Managers for the Commons, by way of Reply, said;

That this Clause would alter the Constitution of this Court, and thereby a very considerable Part of the Constitution of the Government; and that for the worse.

That it is not to be granted, that any new Law does alter the Constitution.

That a new Law may be made to strengthen or restore the Constitution against the Abuses, it may be declaratory, it may ascertain things that before were left to reasonable Discretion; which are but Circumstances and Accidents; and, notwithstanding such new Laws, the Substance of the Constitution remains the same:

So, that by this Bill, the Person indicted is to have a Copy of his Indictment Ten Days before he shall plead: Whereas now, by the Common Law, he is to have the Indictment read to him as oft as he needs and desires; and to have Copies of so much of it as he has Occasion to use; and reasonable time to plead:

That by this Bill, he is to have his Witnesses sworn; which, in some learned Mens Opinions was the Law before: However, it is but a Circumstance added to the Testimony:

That by this Bill, he is to have a Copy of the Panel before the Tryal; whereas by the Course used now, he hath a Copy a reasonable time before:

And, that by the Law now, he is to have a reasonable Time to prepare for his Tryal; which Time this Bill ascertains, by a Number of Days.

But that the Alteration, by the Clause in Question, is in a most substantial Part; and which highly affects the Constitution of the Government.

That our Government is a Monarchy: And it is a main Part of the King's Authority to administer Justice by Officers of his own appointing.

That the King makes Sheriffs; who, for the Tryal of a Commoner, returns so many Freeholders as are competent.

That the King makes the High Steward; who, for the Tryal of a Peer, summons so many Peers as are sufficient.

That, taking away these Powers from the High Steward, and Sheriff; it takes so much from the Regal Authority; and it will amount to no less than to render the Subjects independent on the Crown, in the Pleas of the Crown; wherein, above all other things, the Life, Peace, and Safety of the Government is concerned.

That, if a like Clause were brought in, that every Commoner should be tried by all the Freeholders of the County that would appear, or such of them as they should depute; it could not well be denied, that this were a Change in the Constitution of the Government.

That it may as well be said, That it is not any Altering of the Constitution to divest the Crown of the Power of making Judges in Courts of Law and Equity, and other Courts, or making Justices of Peace, and other Officers.

That it was granted, in Parliament, by 28 Edward I. That the People of any County should chuse the Sheriffs: But thereupon ensued such factious Confusions and Mischiefs in the Country, that, by the Desire of the People, in Parliament, 9 Edward II. the Power of making Sheriffs was settled in the Crown.

That, though the High Steward be said to be the Court; yet the Peers Tryals are so necessary a Part of the Court, that the Conviction, or Acquittal, depends entirely on them: And therefore, not only the Number of Tryers, but the Nature of the Court, may properly be affirmed to be altered by this Clause.

That the Commons were surprized, when they heard it alledged, That this Court, and Course of Tryal, was first introduced in Henry the Eighth's Time, by Cardinal Wolsey, in the Case of the Duke of Bucks; and that all Tryals of Peers before were in Parliament:

That the Statute made the 15th Ed. III. manifestly proves the contrary. It ordained, That Peers should be tried by their Peers in Parliament; but provides, That if any Peer would chuse to be tried elsewhere than in Parliament, he might.

That indeed, the Statute was repealed 17 Edw. III. because it was so injurious to the Prerogative. But yet it shews there was then such a Court and Course of Tryals as This, out of Parliament: For they could not, in Edward the Third's time, divine, that there would be such a new Court and Manner of Tryal erected in Henry the Eighth's Time.

That the Trial of the Earl in H.I, H.IV. reported in the Year Books, is no more to be questioned than any other Case there: And it is cited, as authentick, by Stamford, in his learned Treatise of the Pleas of the Crown: And his Opinion also is, That this Way of Tryal was meant in the Judicium Parium, mentioned in Magna Charta: And Stamford is of great Authority in this Behalf; for that he was Cotemporary to the Reign of H. VIII.; and could not have been unacquainted with this Innovation, if such there had been made in that Time.

And that the very Clause of their Lordships now in Question, doth affirm the Legality of this Way of Tryal: For it distinguishes Treasons which corrupt the Blood, from others; and leaves all other Treasons, and all Felonies, to be tried by Peers summoned by the High Steward, as it is now used: Which shews too, that there is no great Danger apprehended to the Peers by this kind of Tryal.

That the Commons do not admit, that a Peer can be convicted by Seven Peers: There must be Twelve, at least, to concur in the Verdict: It is not only said by my Lord Coke, but the Law is, That no Man shall suffer capitally at the King's Suit, unless his Offence be found by Twenty-four at least, that is, Twelve to find the Indictment, and Twelve to find the Verdict:

And that there must be Twelve Peers agree in the Verdict, was resolved in the Lord Dacres' Case, 26 H. VIII. Which is remembered in Moore's Reports.

And the Case of every Peer that has been convicted, is a Proof of this: For it cannot be shewn, That ever any Peer was convicted by fewer than Twelve.

The Duodecemvirale Judicium, some time in Use in foreign Countries, was always approved, and established by the Law of England; and understood to be That Authority, to which the Determination of contested Facts is intrusted: And therefore, in all other Commissions and Precepts, as well as those of the High Steward, wherein the Command is in general Words; viz. to return or summon tot et tales, such and so many Persons by whom the Truth of the Matter may be tried; it is to be answered and performed by the bringing of Twelve Persons, who are to agree in the Determination of the Matter inquired of.

And as to that Clause that requires all Peers to be attending; it is but a Clause of the same Form and Nature, as is in Commissions of Oyer and Terminer, and other Commissions; and imports no more, than that all Persons should attend, who are required to do so by Law: And it can no more be inferred from those Words, That the High Steward is to summon all the Peers; than, from the like Words in other Commissions, all the Freeholders are to be summoned.

It is the common Notion of our Law, That no Man shall be convicted of a Crime, but by the unanimous Judgment of Twelve unexceptionable Persons summoned by the King's Officer.

The Commons have Liberty of Challenging; because that Fear, or Corruption, or other Cause of Partiality, may be supposed among them.

The Lords have no Challenges: But all Peers are esteemed unexceptionable, because nothing so mean and dishonourable is to be presumed among them.

Their Lordships Ancestors chose to distinguish themselves from their Inferiors; and always claimed and enjoyed a Privilege to be intrusted otherwise than the Commons are; viz.

They are upon Honour, not Oath;

Are not challengeable;

Give their Verdict seriatim;

May have more than Twelve on a Tryal;

And have claimed a Liberty to eat or drink before their Verdict:

And they used to value themselves upon these Things, as Dignities and Privileges.

Now the Commons, that are forbid to speak otherwise of the present Peers, than of their Ancestors, are to be excused, if they think no otherwise of them.

That the Commons observed, what their Lordships had alleged, concerning the Inconveniencies or Abuses that had been or might be in this Way of Tryal, was grounded upon undue Suppositions concerning the Peers, or upon Mistakes, and not warranted by Experience.

That they thought it a strange and foreign Supposition, That a great and guilty Minister, finding himself liable to an Impeachment next Session of Parliament, should, by his Power, procure himself to be tried and acquitted by an Inquest of Persons on Purpose, by a Plea of Auterfoits acquit, to prevent a second and true Examination of his Crimes; for he must be first indicted of his Treason; and then run a Hazard, whether his Power will be and continue sufficient to oblige so many Peers to acquit him by an untrue Verdict:

That there is no Example of this Kind: And, if such an unheard-of Proceeding should ever happen, it is left to Consideration, Whether a Parliament would not vindicate the Kingdom against so gross and fraudulent a Contrivance:

That besides That, the Court, as it is to be ordered by this Clause, would be no less liable to such Abuse.

That their Lordships did not assign any sufficient Instances of Injustice in this Court: And perhaps this Court hath continued the most unblemished, in point of Justice, of any Court whatsoever.

That, in the few Tryals which have been there for Treason, there have been Two Acquittals; viz. the Lord Dacres, and Duke of Somerset, besides That of the Lord Delamere.

That the Duke of Northumberland's Crime was notorious, he having been in open Rebellion against Queen Mary.

That, if the Earl of Wiltshire had been forced to sit on the Tryal of his Daughter Ann Boleyn; it seems to shew a great Fairness: And, if the Court had been constituted according to this Clause, he must have been summoned; and, if the Tryal had been in Parliament, he, as well as other Peers, had been obliged to come: But the Tradition about that Matter is rectified, by the Discovery made by a Reverend Prelate, in his History of the Reformation (a Book approved by their Lordships); where it is made appear, the Earl did not sit upon the Tryal of the Queen.

But, that if all Power must be abolished, which is possible to be abused, there must be no Power left to the King, or Lords, or Commons: And perhaps there are not harder Cases to be found, than those wherein all Three have been concurred: Of which the Attainting Cromwell Earl of Essex, without suffering him to come from the Tower to be heard, is an Instance.

That, if any Inquisition may be made into what is now doing, it were better to lay aside the Clause, that nobody may have any Dependance but upon the Safety of the present Government.

That the High Steward is made pro hac vice, or after the Crime, is no singular Thing.

The Justices of Oyer and Terminer, and of Gaol Delivery, are generally made so twice a Year, or oftener; and Sheriffs are appointed in every Year, or oftener: And all hold their Places during the King's Pleasure.

And, notwithstanding this Clause, the High Steward is still to be appointed by the King, in the same Manner as before: And in all Treasons, but those mentioned, and in all Felonies, he continues to have the same Power of trying a Peer by an Inquest of Peers, summoned by his Precept as is now used: By which alone the Lives and Fortunes of Peers will remain exposed to as much Danger as they were, if any there were, before this Bill.

That the Commons acknowledge they have known, That when a Peer hath stood indicted, Sitting a Parliament, the Indictment has been, by the King's Writ of Certiorari, removed into the House of Peers, there to be tried by all the Peers: But they do not know that of Necessity that must be done, or that such Peer may not be tried in the ordinary Court; and it would be highly inconvenient, in case of long Adjournments, if it might not so be.

But that it is no concluding Argument, That, because there is this extraordinary way of Tryal by all the Peers, therefore the Ordinary by a Number of Peers should be taken away; no more than that, because there is such an Ordinary therefore the Extraordinary should be taken away.

That there is also another way of Tryal, which, in Capital Offences, concerns the Peers too; that is, by a Jury of Freeholders, which their Lordships in this Debate did commend, because those Freeholders were of the Vicinage, and the Prisoner might challenge Thirtyfive without Cause, and any of the rest of the Panel for Cause: And by this the Peers, as well as Commons, are to be tried, in an Appeal of Murder, Rape, or other Felony: But it is supposed their Lordships will not allow it a good Argument, that therefore they should be ordered to be tried so in Treason, and Indictments of Felony: But they hold it a Privilege to be tried, in such case, by their Peers, in the Manner now used.

But that the Method of Tryal, appointed by this Clause, is worse than any of those now in being: And it has nothing of the Nature or Virtue of a Tryal in Parliament: For the Lords House hath Power to send for, and cause all Peers to come, as they did upon the Tryal of the late Lord Stafford: But, to this intended Court, none are to come but such as voluntarily will: Nor is it required, that there should be Twelve, or any certain Number: If but Two or Three appear it is enough: And probably none will come but the Accomplices and Abettors, and Favourites, Friends and Relations of the Party: Nor is it possible to bring together all the Peers there, as in Parliament: For, in Parliament, the House of Peers may appoint or adjourn the Proceedings at or to any Time or Times, and as often as they think fit, till the House be full: But the Proceedings of this Court before the High Steward is the Work but of One Day.

That, in the last Place, the Commons replied, That they did not find Reason to pass this Clause, from what was so much pressed by their Lordships; viz. That the Clause did provide for such Defence for the Peers, as would encourage them to venture to join boldly with the Commons in asserting the publick Liberties:

For the Commons do not find, that, by the present Constitution, the Lives and Fortunes of innocent Peers are, as there Lordships intimated, exposed to the Will of a great and malicious Minister: And, if they were, they do not see that they would be protected by this Provision, since it extends but to some Treasons, and to no Felonies: And they may say, it does not deserve the Name of Adventure, for their Lordships to act only upon Terms of perfect Safety.

And, that on the other hand, the Commons apprehend it would afford too great a Prospect of Safety to guilty Peers; and might embolden them to attempt against the Crown, or the publick Liberties.

That the Commons acknowledge, That these are good Times; and, if they are unquiet or unsafe, it is in relation to the Crown, and not to the Peers; The Peerage is in no Danger; the Peers have Power enough; and the Crown hath not too much, nor ought to be rendered less safe.

That therefore the Commons would insist upon the old Ways; keep the Balance of the Government as they found it; and not change the Laws of England, which have been hitherto used and approved.

Which Report the House took into Consideration.

And afterwards Clause A was read: And several Amendments were proposed to be made therein; which, upon the Question severally put thereupon, were agreed unto by the House; and are as followeth; viz.

Line 2, after "any," insert "Temporal."

Line 4, after "that," leave out "all;" and, instead thereof, insert "not less than Thirty-six of."

Line 4, after "the," insert "Temporal."

Line 7, after "the Second Tryal," insert "upon the Pain of Forfeiture of One thousand Pounds for every such Peer's not appearing, after due Proof made of such Summons, and no reasonable Excuse shewed and allowed by the Court for such his Default."

Line 8, after "that," leave out, "every Peer so summoned, and appearing on such Trial;" and, instead thereof, insert "at least Twenty-three of the Peers so summoned, and not under that Number."

Line 12, after "Year," leave out "King William and Queen Mary;" and instead thereof, insert "their Majesties Reign."

Resolved, That this House doth agree to the said Clause, so amended.

Ordered, That a free Conference be desired with the Lords, upon the Subject Matter of the last free Conference.

Ordered, That Mr. Mountague do, To-morrow Morning, go to the Lords; and desire the said free Conference.

Committees.

Ordered, That all Committees be revived.

And then the House adjourned till To-morrow Morning, Eight of the Clock.