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1, Because we are of Opinion, that the Judgments given Anno 1 Will. in the Court of King's-Bench against Titus Oates are altoge- III. 1689. ther illegal and cruel, and not capable of being qualified in

Juftice or Law, by the Words (unprecedented and fo cruel Proteft thereon. and illegal, that the Practice thereof ought to be prevented for the time to come) but ought plainly to be declared pofitively against Law, Juftice, and the undoubted Right of the Subject.

2dly, Because we are of Opinion, that no Merit or Demerit of any Perfon appealing to the House of Lords, or bringing thither a Writ of Error, ought to have any weight with the Lords in giving Judgment; and therefore no Reafon why the faid Judgments ought not to be reversed by the Legislative Power, fince the fupreme Court of Judicature (the Lords in Parliament) is the utmost Resort any Person can have for Juftice, except the Legislative Power.

3dly, Because we are of Opinion, that barely faying (it fhall not be lawful at any Time hereafter to inflict the like exceffive Punishments again) is not ftrong enough to deter a corrupt or partial Judge from practifing the fame, becaufe it is without a Penalty upon fuch Judge; and barely the Tranfgreffion of Law not made penal, can amount to no more for Punishment than a moderate Fine; and there is no doubt but all Judges will be hereafter cautious of fetting great Fines, fince of late the Subject, in that Point, has been grievously oppreffed, as does appear by feveral exorbitant Fines annulled in this prefent Parliament.

We also enter our Diffent to the Provifo for thefe Reasons : 1A, Because no Man ought, by the Law of England, to be punished unheard; though the Parliament has Power in all Things poffible in its Legislative Capacity, yet by all Rules. of Law and Justice, no Man ought to be oppreffed merely arbitrarily; and in this Cafe it feems to us to be fo, for the other Part of the Bill reverfes two illegal and unjuft Judgments against Titus Oates in the Court of King's-Bench, affirmed upon Writs of Error brought to reverse the same; and this Provifo, without hearing him in his Defence, enacts, Titus Oates to be a Man incapable of being a Witness, which, we conceive, is more Infamy than being a Slave.

2dly, The Provifo, as it is penn'd, that it may have a Shew of Justice, feems to give him, the faid Titus Oates, a Liberty to clear himself, but in reality it is impoffible for him so to do; for, if it be meant, that the Matter for which the faid Titus Oates was convicted of Perjury must be heard and determined in Parliament in a Legislative way, there is no need of this Provifo ; but if it be meant that the faid Matters for which he was convicted of Perjury must be heard and deter1689. A a a

mined

Anno 1 Will.
III. 1689.

mined by the House of Lords in Parliament, then (befides that it may feem to caft a Reflection upon the Proceeding of the Houfe of Lords in affirming the Judgments given in the Kings-Bench against him, without hearing him) there will be two infuperable Difficulties; one is, that by the Rules and Practice of the Houfe of Lords, as a Court of Judicature, the Lords cannot call for the Matters and Evidence concerning the two Verdicts, nor can Titus Oates bring that before. the Lords in Judicature; the other is in cafe the Lords in Judicature fhall call for the fame, or Titus Oates fhould bring them before the Lords in Judicature; the other is in Cafe the Lords in Judicature, and the Lords proceed thereon to give Judgment, it is by us conceived, that it would be an original Cause, and therefore not to be proceeded upon.

3dly, If Titus Oates cannot acquit himself of Perjury, as this Provifo seems to give him Liberty to do, in the House of Lords, he can never bring it into any inferior Court.

4thly, Laft of all, we conceive, that the refufing to condemn the Verdicts brought against Titus Oates in the King's Bench does condemn, at the fame time, the Credit of the popish Plot, which was affirmed by fo many Witnesses in feveral Parliaments, and caufed fo many Addreffes to the King concerning it, fince the firft Discovery of it was upon this very Evidence, for which he was convicted (tho' by a pack'd corrupt Jury) by the highest Oppreffion, and by a former Jury in the fame Cafe acquitted of Perjury.

Bedford, Charles de Berkeley, Maclesfield, Paget, Vaughan, * Montagu, Suffex, Cornwallis, Newport, Stamford, Suffolk.

Against the Amendment.

Line the 34th, after (the Kings-Bench) leave out (and the Judgments on the said Writs of Error) 37th Line, after the Word (Judgments) add (in the Court of Kings-Bench.)

Because it is altogether unintelligible to us, how we can reverse the Judgments in the King's-Bench as erroneous and illegal, and yet fo induftriously paffed by the Judgments given in this House, that affirm thofe illegal and erroneous Judgments, by rejecting that Claufe in the Bill brought up from the Houfe of Commons that reverfes that Judgment also.

Against the Provifo.

Because the Title and Intention of the Bill is to reverfe the Judgments against Titus Oates, but this Provifo makes it firmer and heavier than ever, as much as an Act of Parlia ment is of more Weight than the Sentence of any judicial Court,

Ralph, Lord Montagu of Boughton, created Viscount Mounther mer, and Earl of Montagu, April the 9th, 1689, by King William.

Court, and the Infamy of Perjury a greater Punishment than any thing barely corporal.

Because, we think, we cannot justify to the World, or our own Confciences, fuch a Compliance for the Judgments of profligate Wretches, fet up for Judges in Westminster-Hall, as that in the fame Act, wherein we are forced (upon undeniable Reasons, manifeft to the whole World) to annul their Judgments as illegal and erroneous, we should yet retain and fix upon him, who hath already fuffered by it, undue and unheard-of Punishments, the fevereft Part of a confeffed illegal Sentence.

Because we cannot consent that this Houfe, which hath been always looked on as the Seat of Juftice and Honour, fhould come under the Obloquy of a Place, where Men are condemned first and tried afterwards, which we cannot fee how to avoid, if, according to this Provifo, we lay Dr. Oates presently under the Condemnation of Perjury, until the Matters of that Perjury fhall be heard and determined hereafter.

Because, fuppofing him guilty, we being, by no Forms of Juftice, obliged to condemn him, we think it Prudence not to give an Occafion to be thought apprehenfive of his Teftimony, by taking this new and unheard of way of depriving him of it.

The Cafe of any Man living, the Condemnation of Perjury ought not to be laid on Titus Oates, before a fair and = full Hearing, for that it was fo much the Labour of the Enemies of our Religion and Liberties (who in this Matter knew well what they did) to advance their Designs by inva lidating his Testimony, the Credit of which was in vain attempted by folemn Trial, till the Irregularities of the last Reign, and the way to corrupt Judges and Juries to their Purposes; we therefore fear, we may be accused of out-doing the whipping Precedents of Westminster-Hall, in confenting to condemn without Hearing or Trial.

Because we cannot confent, that this Hardship be put on his Majefty, either to reject a Bill offered to him by both Houses, which hitherto he hath not done; or else, in a most folemn way, to lay a Man under the Condemnation of the most deteftable Crime, without any Knowledge of it; an Injustice no body can advise him to, to advance his own Intereft, much lefs for the promoting that of his Enemies, who always did and do think themfeives concerned to difcredit the Opinion of the popish Plot, to which this feems to have a great Tendency.

Because we cannot confent to fix on any one the Condemnation of Perjury, by Act of Parliament, upon bare Surmife before a Hearing, were it for no other Reafon but that those

Aaa 2

who

Anno 1 Will,
III. 1689.

Anno 1 Will, who have Proofs may, by an orderly Courfe of Law, con III. 1689. vict him; to condemn Oates of Perjury, until it fhall be heard and determined in Parliament, is to condemn him for ever and unheard; for how, after this, can it come judicially before us, there lies no Indictment in the Houfe of Lords, nor Writ of Error, when the Record is vacated; fo that it is utterly impoffible for Titus Oates to receive any Benefit by a Remedy feemingly provided for him by Act of Parliament. Montagu, Suffolk, Monmouth, Macclesfield, Oxford, Herbert.

Conference between the two

Houses on

Oates's Affair.

The Bill, with the Amendments and Provifo, having been read a third time, past, and fent to the Commons, that House difagreed to the faid Amendments, particularly to the firft; (viz. To leave out, the faid Verdicts brought in against the faid Oates were corrupt) Because the Points in which the Perjuries were affign'd in the Informations were folemnly examin'd and try'd at former Trials, wherein the Proceedings were regular, and when things were fresh in Memory; and at thofe Trials the Teftimony of Oates was fupported by concurrent Evidence, to the full Satisfaction of the Courts and Juries: Because it appear'd, by unquestionable Evidence, that feveral thousand Pounds were beftow'd and expended upon the Jurors and Witneffes about the Trials for the fuppos'd Perjuries, which Sums were much greater than could be expended in a fair and uncorrupt Profecution. Because the Juries who pafs'd upon the Trials were return'd by Officers unduly chofen, after the unjuft Seizure of the Liberties of the City of London, and in the Reign of a Popish King, and at fuch a time when neither Council nor Witneffes durft appear for the faid Titus Oates, when Perjury was countenanced by fuborning Witneffes; by Judges not daring to take notice how Witneffes in later Trials had contradicted what they had fworn in former Trials, but fuffer'd by Mr. Cornish, in particular, to be attainted upon fuch contrary Evidence, tho' the faid contrary Evidence had been twice printed before by Authority.' The Lords infisted on their Amendments, chiefly upon the following Reafons, which were reported by the Earl of Rochester. First, Because new Matter might have arifen between the first and the fubfequent Trials; but nothing of this now lay before them, nor had the Evidence, upon which the Verdicts were given, been yet examin'd. 2dly, Because there did not appear to the Lords any Evidence, much lefs any that was unquestionable, of any fuch Sums of Money, expended upon the Jurors and Witneffes, as might render the Profecution unfair or corrupt. And 3dly, Becaufe the reverfing fo many Judgments as were given in a course of many Years, was attended with very

ill Confequences. As for the Provifo, the Lords alledg'd, That they did not lay any new Cenfure on Titus Oates, but left him in the State in which they found him, as to his being a Witnefs, till the Particulars were examin'd; and that they did not intend to bring in queftion the Popish Plot, but thought it both for the Honour of the Nation and Religion, that the Validity of Titus Oates's Evidence, for the future, fhould not be allow'd, nor a Conviction paft in the Forms of Law, be fet afide till the whole Matter of Fact were duly examin'd.'

Anno i Will.
III. 1689.

Ón the 29th of July there was a free Conference, which Free Conference was begun by the Managers of the Houfe of Commons, who faid, • That they look'd upon that Bill not to be the Bufinefs of a particular Man, but of every Subject in England, with regard to his Perfon and Estate, and that the Honour of Parliaments, public Juftice, and the Protestant Religion, were concern'd in it, as well as the Integrity of King Charles II. and his Privy Council; and that the Lords Amendments, if agreed to, would make that Bill of great Prejudice to the Subject, instead of anfwering the Ends which were intended by the Commons. That the Lords Amendments were of two Sorts, fome relating to the Judgments, and others to the Verdicts: That as to the first, the Commons had hop'd, that, after the Declaration prefented to their Majefties, upon accepting the Crown, wherein their Lordfhips had join'd with the Commons, in complaining of the cruel and illegal Punishments of the late Reign, and after this Declaration had been fo lately renew'd in that Part of the Bill of Rights, which the Lords had agreed to, they fhould not have feen Judgments of this Nature affirm'd, and been put under a neceffity of fending up a Bill for reverfing them. That these Declarations would not only be ufelefs, but of pernicious Confequence to the People, if, fo foon after, fuch Judgments as these flood affirm'd, and were not. taken to be cruel and illegal, within the Meaning of these Declarations That the Commons had a particular Regard to these Judgments, amongst others, when that Declaration was made; and muft infilt upon it that they are erroneous, cruel, illegal, and of ill Example to future Ages, which was the Character fix'd upon them by the Bill fent up to the Lords. That the Lords having gone fo far as to agree the Judgments to be erroneous, it could not be denied that they were illegal, for that which makes a Judgment fo, is, that it is against Law. That it was of ill Example for a temporal Court to divest a Clerk of his canonical Habit: That it was both of ill Example, illegal and cruel, that a Judgment of perpetual Imprisonment fhould be given in a Cafe where

there

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