might come in with a fair Intention, and for Discovery of the Truth, but that appearing in the Presence of so many great Perfons, and finding fo much Ear given to what he said, it was natural that it fhould either damp and terrify him, or create too great a Confidence: That it had the latter Effect upon him, and made him fancy himself to have a Right of creating Evidence, rather than delivering it; that it was not fit to encourage fuch Witneffes; that his Brain feem'd to be turn'd, and that when he was lately brought before the House of Lords, he feem'd to hang his Rod over them. That now the Parliament, acting as Legiflators, were not ty'd down to Forms, and that they did not inflict any new Censure on him, but left him in the State they found him. This was a Matter of great Expectation; that the Eyes of all Europe. were upon it, and that it would be the Occasion of great Cenfures, if he should be fet up for a Witness again, without a full Examination of the whole Affair, especially in the Cafe of a Conviction for Perjury, which had fomething in it more particular than other Crimes, for every one had a particular Concern to be cover'd from it. That they would not enter into the Question of what was the Difference between an erroneous and an illegal Judgment, though perhaps a Judgment that was erroneous in point of Form, might not be said to be illegal. That as to the Affirmance of the Judgments, and the Amendments relating to the Judgments, the Judges had own'd to the Lords that there was a Latitude left to the Court in Judgments in cafe of Perjury, which was one thing that moved them to affirm the Judgments; but that they had never done it, had it not been attended with the Verdict, which the Lords thought of fatal Confequence to take away. That when the Cafe came to be debated in the Houfe of Lords, upon the Writs of Error, there was not one Lord but thought the Judgments erroneous, and was fully fatisfied, that fuch an extravagant Judgment ought not to have been given, or a Punishment fo exorbitant inflicted upon an English Sub ject: But confidering his accufing the Queen fo impertinently, and several other Inftances, rather than leave fo ill a Man as Oates, capable of being a Witness, they, in that freight, chole to affirm the Judgments, though they were fatisfied of their being erroneous; and to fhew that they were fenfible of this, at the fame time when they affirm'd the Judgments, they thought fit that a Bill fhould be brought into the House of Peers to prevent the inconveniences of the like Judgments for the future. And therefore, when the Lords had gone fo far in their Judicial Capacity, as to affirm the Judgments rather than the Verdicts fhould be fet afide, the Commons were not to expect that they would recede now, and fet up Oates B b b 2 for Anno 1 Will. Anno 1 Will. for a Witnefs again, without unquestionable Proof of Corrup III. 1689. tion in the Jury. Upon the whole matter, the Lords infifted, If, To leave out what concerned the Corruption of the Verdicts. zdly, That their Provifo against Oates being received for a Witness should pafs: And 3dly, that fo great a Hardship fhoud not be put upon the House of Peers, as that they fhould in exprefs Terms reverse their own Judgments, fince there was no neceffity of it.' The Managers of the Commons, by way of Reply, gave a fummary Account of the whole Proceedings of the Popish Plot; feveral Subornations and other fuch Practices which had been used to ftifle the Evidence and difcredit the Witneffes, particularly Oates. As to the Lords Amendments, which concerned the Judgments, it was argued by the Managers, That there were Precedents made which afflicted every Englishman. That by taking upon them to affirm fuch Judg. ments as thefe, the Lords had, in a manner, taken the Law into their Hands. That this Arbitrary Power in the Lords Judicature was a new Discovery, and if it had been understood in former Times, would have been a very expeditious way of altering the Law upon feveral Occafions. That the Lords, as a Court of Judicature, are as ftrictly ty'd to give Judg ment upon a Writ of Error according to Law, as any inferior Court whatsoever; that they must not proceed upon Convenience; that this Judgment of the Lords was agreed to be given not according to Law, but according to an Opinion which their Lordships had conceiv'd of the Party, and that alfo without any Judicial Examination; that instead of correcting the acknowledg'd Errors of the Judgments in the King's-Bench, they affirmed them, and fo changed the Law, which ought to be the certain and steady Rule of Government, into the Arbitrary Resolutions of that House. That nothing was aim'd at by the Commons in this Bill, but to set that Matter right; that if this Bi was loft, the Lords had fettled it for Law, that every Subject might be used in this ignomipious and barbarous manner; that Oates was the leaft part of the Question, how much foever he feem'd concern'd in it; and that the Grievance was, that the whole Kingdom, for Oates's Sake, must be made liable to thefe Whippings. That the Commons hoped the Lords would take this Opportunity of redeeming this Error by paffing the Bill, as it was fent up by the Commons, and not expect, because they had given a wrong Judgment, that therefore the Commons must join to fupport it as an A&t of Parliament, for their Lordships Claufe did really countenance the Judgment against Oates; enacting only that fuch Punishment should not be inflicted for the future. That it was of great Importance to the Kingdom to have III. 1689. this Matter fettled : That Judgments of this kind having Anno 1 Will. been extended to several Perfons, and to very different Cafes, as in that of Mr. Johnson, it was thought, with Reason enough perhaps, by the Minifters of thofe Times, that fuch Punishments would awe the People, and fit them for Slavery, worfe than Death itself; according to Sir Thomas Smith's Observation: That no Nation is lefs afraid of Death, or more afraid of Torments than the English. That the Commons could not think the Nation fafe without an exprefs and plain Declaration, not only that the Judgments of the King's Bench were illegal, cruel, and of evil Example to future Ages; but also that the Affirmation of thofe Judgments was contrary to Law. As to what was faid by the Lords to maintain the Amendments which concern'd the Verdicts, the Managers for the Commons replied, That the Lords by infifting not to agree to the Clause in the Bill which calls the Verdicts corrupt, unless the Commons could bring pofitive Proof of an express Contract for Money to be paid directly to hire the Jurors to give their Virdiets, did feem to have inverted the feveral Methods of Proceedings in their diftin&t Capacities: That in their Judicature, where they ought to act by the ftrict Rules of Law, they proceeded according to a fuppofed Convenience; and in this legislative Capacity, where there is a Latitude of Proceedings according to a moral Certainty and Convenience, a fingle Expreffion of a corrupt Verdict, tho' afferted upon fuch Grounds, would not be allowed, unless a precife Proof was made in the flricteft Forms of Courts. That it was not the Business of the Commons to furnish the Lords with Evidence, or to inform them otherwife than by reasoning at Conferences, the Lords having proper Methods whereby they may inform themfelves, when they think Evidence requifite. That it was notorious that the whole Administration of the Government, efpecially with relation to Religion, was at that time corrupt; that the Defign was to overthrow the Reformation, and reftore Popery to be the national Religion, which could not be effected otherwife than by totally perverting and corrupting the Laws, or the whole Course of Juftice; that they had a Popish King, the House of Peers was to have been filled with Papifts by Difpenfation with the A&t 30 Car. II and a Popish House of Commons was to have been pack'd by means of Quo Warrantos, Surrenders, and making and regulating of Corporations; that in the Courts of Judicature they did run upon every Man who durft affirm the lawful Rights of an English Subject, refolving by partial and corrupt Means to bow or break them; that for this purpose they provided and pack'd Judges, Sheriffs, Ju rors, Anno 1 Will. rors, and Witnefles, and those in Authority, who ought to hold the Ballance indifferently, were indeed a Party, a corrupt Party; that this was prov'd by the Declaration of the 13th of February, wherein the Lords and Commons did agree that there were evil Counsellors, Judges and Minifters that affifted the late King to fubvert and extirpate the Proteftant Religion, and the Laws and Liberties of this Kingdom; that the Laws were fufpended and difpens'd with, an ecclefiaftical Commiffion executed, Bifhops committed and profecuted for an humble, honeft Petition, Proteftants difarm'd; whilst Papifts were arm'd and employ'd, partial and corrupt Perfons return'd and ferved on Juries, exceffive Bail requir'd, exceffive Fines impos'd, and illegal and cruel Punishments inflicted; that when the Commons fent up this Declaration, the Lords acknowledg'd and agreed to the Truth of the Particulars upon the Notoriety of the Fact, without afking the Commons to prove any of the Articles; that if there were fuch foul and corrupt Proceedings as the Lords had agreed there were, could it be thought that in this particular Cafe of Oates, who had highly provoked them, and upon the Ruin of whofe Credit the Reputation of the whole Party did depend, they departed from themselves, and for once proceeded indifferently, equally, and uncorruptly? That the Lords might as well, if not better, put the Commons to prove any or every the Proceedings in the late Reign to be corrupt or unequal, which would be to deny or doubt in every Particular, what they had exprefly own'd in general. That the Matter in Oates's Trial was felf-evident: They tried Points that had been examined in Parliament, and were proper to be re-examined only there; the Witneffes were provoked Enemies; and tho' his Evidence was not against all Jefuits, it reflected upon the whole Order, and was directly against the whole College at St. Omer's; the Jurors were fuch whofe Affections and Prejudices were well known, and they were return'd by Sheriffs not equally conftituted; and the Judges were Chief Justice Jefferies and his Companions. That to render a Verdict corrupt, it is not abfolutely neceffary that the Jury should bargain and fell it for Money; if there were a falfe Byafs by Prepoffeffion, Prejudice, Hope of Preferment or Gain, a Fear of Difpleasure, 'tis enough: Or fuppofe the Judges were corrupt, and directed falfe Law, or falfe Facts, or overawed the Jury, or admitted any Party to be a Witness or Juror, (as in effect it was) that was enough to render the Verdict corrupt; but, which is worse, here the Jury was return'd at the Denomination of a Party; and it was the Fashion of the Times that every one who was accused was to be convicted at the Peril of the Judges and the Jury. III. 1689. Jury. That if Oates's Brain was turn'd, as was faid by the Anno 1 Will. Lords, the more wrong was done by convicting him for Perjury, which a Madman could not be guilty of. That after fuch cruel Ufage, which would make a wifer Man mad, it might with more Reason be believ'd his Brain was turn'd, and then there was little Danger of his being used in Evidence for the future. That it was obfervable that Oates was fentenced to be whipt from Aldgate to Newgate on the Wednesday, and from thence to Tyburn on Friday following, which could be intended no otherwife than in the nature of a Rack, by the Smart of the firft Suffering, and the approaching Terror of the next, he might be brought to make fuch a Recantation as was defir'd; and it was hard to think, that any thing but a full Perfuafion in himself, that what he fwore was true, could fupport a Man under fuch a Torture. That if Oates had been guilty of Perjury about the Queen Dowager, or any other Matter, (which had not hitherto been brought in queftion) it did not relate to the prefent Cafe, and he was liable to be indicted and punish'd for it, whatsoever became of this Bill. That the Commons did not argue, that because a Man had been once believ'd at Ca Trial, he was not to be profecuted for Perjury alfo : But they observed that the very fame Objections had been made to Oates's Teftimony at former Trials, and proved by the fame Witneffes, and yet the Juries gave credit to Oates: So that, according to the Lords way of reafoning, to suppose Oates to be perjur'd in these Points, was to attaint these former Juries, and the Lords ought to be careful of charging fuch a Guilt upon one Jury or another. That, upon the whole, the Commons did not think it reasonable, it should be required of them, to concur to fupport any part of his erroneous Record: That 'tis the Right of the Subject, that all that is done before or after an illegal Judgment fhould fall with it; and tho' in Proceedings in the legislative way, the Commons were fenfible, they were not tied up to the Forms, yet they were certainly bound to the Rules of natural Juftice, and were not to deprive the Subject of his legal Advantage.' * The Refult of this memorable Conference was, that the Both Houses Commons ftiffly rejected the Amendments and Provifo, and adhere. that the Lords firmly adhered to both, of which they acquainted the Lower Houfe. The Commons being offended at this Meffage, demanded a Conference with the Lords for fettling the Method of Proceedings between the two Houfes upon Conferences and free Conferences, and appointed a Com On the Report, Contents 34, Proxies 14; in all 48, Not content 32, Proxies 6: in all 38. |