sent in person here. If any speak against this House abroad, we send for him.-No question, but, upon his confession, we might, for the reason aforesaid, punish him; and may do it here, without oath, if the House satisfied

siis et modis.

Sir Geor. Moore. To acknowledge no error in our judgment, nor to contest with the king. To pass a bill.

Upon question, to address ourselves, in this case, to his majesty.

manded him to let the House know his care about Floyde. Thanks to the House, for their love to him, and his children. That the king hath given order, upon Floyd's petition to his learned counsel, to examine Floyd. That the petition was delivered by Richard Floyde, where the king thought it had been Edward Floyd himself. That Floyd now examined by Mr. Attorney and sollicitor denieth it. Will, to morrow, give order, to have this examined by the Lords, upon oath; and, if it shall be proved there, will punish it, according to our desire; conceiving us to have no power of an oath. That for the precedent 1 H. 4. the king (whereto Mr. Speaker replied) was prepared to have given an answer; but did forbear, in respect many there were no niembers of this House.

Master of the Wards. That the Speaker, with the whole House, may present our request to his majesty. So Mr. Wandesford. Sir Nath. Rich. Because nothing crosseth our judgment, but the precedent 1 H. 4, which an excellent record for us, made in that parliament, wherein the most prodigious fact done, that ever in parliament; which this House then Mr. Sollicitor. That the king, as soon as disavowed: "which made the king and Lords, in Mr. Speaker and the House gone, the king indignation, seclude them from judgment in committed the examination of Floyd to the those cases. The fact was upon king Richard attorney and him. Floyd denied it. That the attorney told him, he had denied his scanMr. Caroyle. If any foreigner offend, just-dalizing of sir Francis Evers, till he shewed ly, any member of this House, in words, we him his hand-writing; which he again now may convent and punish him. absolutely denied. That the king, upon this Sir Jo. Chamberlayne, Feareth, this going denial, the more desirous to punish him: And to the king will procure a distaste between the therefore leaveth it to the judgment of the House, whether to insist further upon their right, of judging this business here, or to go to the Lords in this, as we have done in all other business this session.

the 2d.

Lords and us.

Mr. Noye. Well resolved to go to the king. To give him full satisfaction in some things. Have stayed any execution of our judgment. For the queries made; if any man of the House had beaten Floyd, the king would not have been offended: Much less our judgment. Not to contest with the king, of our right. To set down our reasons, moving us, in this particular cause, to proceed as we have done For the general; not to disclaim our right, but to take time to search precedents.

Sir Francis Seymor. To have only ten or twelve to attend the Speaker to the king. No debate with the king. To search precedents

afterwards:

Sir Wm. Strowde. To leave it to the king, whether the whole House, or a select number, to attend the Speaker to the king. Sir Francis Fane. Accordant.

Sir Tho. Jermyn. A committee, to withdraw themselves presently, to set down in writing, what shall be presented to the king by the Speaker.

Sir Edw. Mountagew. Not in our power to appoint, whether the whole House, or fewer, shall come to the king. To leave that to him. Mr. Secretary, Chancellor Exchequer, Master of the Wards, presently to signify to his majesty the desire of the House.

Master of the Wards. To take especial care of sir Nath. Riche's motion, to answer the record of 1 H. 4. Neither to accuse, or excuse ourselves. To shew our judgment to have been hastened by our zeal. To desire, the king will deal with us, as a father.

May 4.

Mr. Secretary. That the king hath com

Sir J. Perrott. To have it considered, whether we be a court of record, and whether we have not power to give an oath.

Sir W. Strowde. This no seasonable motion now. To go to the Lords. That examination will be long, and will defer his punishment. To go about that now, which may best advance the good of our countries.

Sir Ro. Phillippes. In our judgment as much love to the king, and his, as ever from any House of Commons; and as much duty,, in desiring the execution, as ever from any. To sit down, and meddle no more in this business.

Mr. Alford. This House never so shaken in Judgment, as now. Our judgment generally known. That done by us, in one case, for the king's issue.

Sir D. Diggs concordat with sir Robert Phillippes.

Sir Tho. Jermyn, accordant. If any could maintain what we have done, would never sit down. If that true, which we have heard here, this the greatest court of England, and the least power.

Sir Wm. Herberte. We have given our judgment: The king may stay the execution: We cannot help that.

Mr. Mallet. This a court; where law, and discretion. The best discretion, to leave this matter now.

Sir Edw. Sackoyle. While Floid not punished, we all suffer. No loss of privilege, for the Lords do concur with us in the sentence, not to confirm ours.

Sir Geor. Moor. Thinketh yet, they gave

this judgment juste, as well as justum: Forment shall be entered, or not. So sir William done upon good reason. An oath not requisite Spencer. in all causes. The matter not obscure, but plain. Not to go to the Lords. To rest here. For that his majesty may stay the execu

tion.

Sir Edw. Cecill. We the sinews of the commonwealth. To regard our loyalty, and the honour of this House. Not to go to the Lords, to move them to patch up our faults.

Sir Tho. Kow. The liberties of this House much shaken now. Thinketh our judgment rightly given and may stand upon record here, as our claim. That this cannot now come to the Lords, either with us, or without us: Not with us, without our disgrace; nor without us, because cannot take notice of any public grievance (as this) without complaint thereof from hence.

Mr. Treasurer. Not moved, or intended, we should not carry this to the Lords, or consent to it; but leave the course thereof to the king, and speak no more of it.

Mr. Secretary, accordant.

Sir H. Withrington. Thinketh not, but we have power to give an oath; And, for precedents; every precedent had a beginning. Sir H. Poole. To proceed in this by way of

bill.

Sir Edw. Gyles. Not to wave our right. Thinketh in his concience, we have done well, and judicially. Not to go to the Lords in this course. To leave it to the king, and with the king.

Master of the Wards. Sorry, we driven to this strait; not much election; Cannot go back from our judgment. We have appealed to the king: Can go no higher. To go no lower. To go once again to the king, and to let him know, what we have done, hath been out of our zeal and love to him, and his children. To desire him, once again, to do with us, as a father; and not to put us over to the Lords, but himself to end.

Mr. Smyth. That the earls marshal, in this case, upon complaint would have punished it; yet examine not upon oath. Knoweth this in his own case.

Sir Tho. Wentworth. That the judgment rightly given execution may be stayed by the king: So hath been, of judgments given by the

Lords.

Sir Edw. Coke. Judgment not to be stayed, for Great Seal, &c. yet where felony or treason, the king may stay the proceeding. This judgment given for the king: For his blood. Any man may stay his own suit. Not to question the judgment. Every man, though absent, involved in the judgment; yea the judgment his, though he of a contrary opinion. Concors discordia. The judgment already entered. The king may stay the execution, where he only party. In appeal, not to stay; in indictment, otherwise.

Sir Tho. Warton. First to read the judgment.

Mr. Sollicitor. Will not go about to dissuade them from this. Not to do fit things unseasonably. That this question grew by a message from the king.

Sir Edw, Coke, Sir Ro. Phillippes, Mr. Noy, Mr. Alford, sir Sam. Sands, Master of the Wards, sir Nath. Rich, sir Edw. Cecill, presently to retire into the committee chamber, and to set down in writing, the judgment.

Sir Edw. Sackoyle. That all our proceedings may be entered here, and kept as Records.

The Report in Grey's Debates of the speeches made in the House of Commons in the progress of the Proceedings against Thompson is as follows:

Upon reading the Report of the Committee appointed to examine the complaint against him (See p. 3. sup.)

Sir Sam. Sands. No member of this House ought after a question, to question the power Sir Robert Markham. I would not send of this House. That the judgment given out him to Rome, for fear that he is their chapof a great zeal and love to his majesty. To lain already, but I would banish him to Geneva let the world know no pique between the king for he says, "They are worse than the devil and his people. Not erroneous, nor coram non that are Presbyterians." Put him into the bu judice. A court of record: Therefore may of banishment of the papists. give an oath. Disuse loseth no privilege. Sir Francis Winnington. I take this bu How long have the Lords disused to give judg-siness to be of great concernment. When ments in parliament? The king, as head, pre-speak against such men as these, I speak for sent here, and in all his courts. We punish the church. Three things this report run here abuses to the members of our House, upon. First, bold and impudent reflections o yea, to their servants; much more to the the king; and it is our duty to take notice king's blood. To enter the judgment. Let such men. Next, I never heard any man so con him bring his Writ of Error. No corruption fidently and rantingly assert popery; and nex in us, but by our love to the king. We judge asserting of arbitrary power. He is a mo many things, without oath. Sheriffs, &c. pass admirable preacher, and takes upon him to as bills. That we were a court before ever swear- sert those things! There were many witness ing upon a book introduced. These did swear, heard-He is restless in and out of the pulp and protest, as deeply, and credibly, here, as in imposing these doctrines, and this magnit could be by swearing upon a book. his offence, that it was done in interval of pa Sir Francis Seymor, and sir Francis Fane. liament, in the boldness of the papists. It To put it to the question, whether the judg-worthy your consideration what to do wit

one of the most capital cities of the kingdom? His punishment cannot be too great. He has not only defamed the king, but spoken reproachfully of the protestant religion, and of queen Elizabeth. No one protestant would do it, and he has cast the plot upon the protestants. Should you pass but a light censure upon this man, he would laugh at you. Therefore bø sure that in your vote you hit upon every thing he is guilty of. Two or three gentlemen may withdraw, and word the question.

Upon proposing the Vote against him, (see P. 7. sup.)

Sir William Jones. You have made a just Vote, but if you do no more, he will come off too lightly. You may trust him now with this Vote in any judicature; but I would stop the mouths of his fellows, and in the face of all the world, I would publish the evidence against him, and let the church-men see what sort of sons they have. They who think him too little for impeachment, think him too big for a bill; but, to prepare the Lords and all men for his sentence, I would impeach him.

this man. I have heard of a precedent of sentencing such a person to ride through the city with his face to the horse's tail. If you banish him, it is the way to make him a cardinal; such company as you intend in your bill is preferment to him: Some men we see will struggle hard to keep the protestants from being united, and I must believe that, at the bottom, they love popery better than the protestant religion. We may raise a dispute amongst the Lords; though the man seem too little to impeach, yet his crimes are great enough for the Commons of England to charge him upon; and let the bishops see what kind of cattle these are that scandalize the church. Therefore I would resolve upon some questions, viz. "That he has impudently scandalized his majesty and the protestant religion ;" and when you have put these to the vote upon him, the best way is to make him exemplary. I was thinking of a short bill, to put a character of disability upon him, for really there are such a multitude of people in the plot (and that borders upon it) that you cannot well impeach him. Such sort of people as these absolutely endeavour to destroy the doctrine of the church, and to bring in Colonel Titus. No man thinks that this popery, and such as those that foment dis- Thompson deserves punishment, and a severe sentions amongst protestants. one, more than I do, but I am at a stand what Serjeant Maynard. This Thompson is as that shall be. You are moved for "Banishnaughty a man as can be; he has scandalized ment with the most considerable papists." I religion, fallen upon the dead, that most excel- do think him a papist, and much more because lent princess queen Elizabeth, and scandalized he calls himself a Protestant. I do remember the protestants in the pulpit, besides prosecuting several persons you have impeached, an earl men for not coming to church when the church into a duke [Lauderdale,] and an earl, almost doors were shut. I wish you could punish him into a marquis [Halifax. He was soon after as he deserves. I think he that scandalized so created.] And some into being public mithe queen of Bohemia had sentence, by im-nisters. The effects have been like thunder

peachment, to ride with his face to the horse's upon mushrooms; it does but make them grow, tail. But I would not send him beyond sea, not blast them. Dr. Mainwaring was impeachfor there he will be favoured. I would fained by the Commons, and was brought to the see how the fathers of our church will look bar on his knees in the Lords House, and upon this man. I wonder that he has been he there recanted what he had written and suffered in the church so long. I would im- preached. He was Dr. Mainwaring before peach him to the Lords, and then see whether you impeached him, and was lord bishop of you may mend their judgment against him, in a bill, which will be much more terrible.

*The like happened here. See the note at the beginning of this case, p. 1.

Sir Tho. Lee. It is necessary that you take notice of this matter. This spiritual sword, † See his Case, vol. 3, p. 335, of this Colwhich they all complain of, does the mischief. lection, where it may be noticed that one part If the bishop of the proper diocese had done his of the judgment pronounced against him was, duty, he had saved you this labour. Therefore "That he should be for ever disabled to have I would pass a vote, "That he is a scandal to any ecclesiastical dignity, or secular office." his own function, and that he has dishonoured On the 18th of April, 1640, in the next parliathe king ;" and add what you will else to it. ment that met after this transaction, the Lords Col. Birch. The great tendency of the evi- took up this business again; and, having read dence was, "That he defamed and cried down the declaration of the Commons against the the reformation." Pray put that in its proper now bishop of St. David's, and the sentence of place. the Lords, they refer the whole to their ComCol. Titus. When one considers what mon-mittee of Privileges, with leave to the bishop strous conspiracies are against our liberties, and to change the government both of church and state! There are a sort of protestants, who make use of the profession of the protestant religion, to injure the protestant religion. And where did this Mr. Thompson do this, but in

* See Floyde's Case.

to allege any thing before the said Committee, on his part, either by pardon, licence, or otherwise. On the 21st of April, they order the records to be brought, that the House may determine this cause. But on the 28th of April, the king sends a message by the Lord Keeper, "That his majesty, understanding there was some question concerning Dr. Mainwaring,

St. David's after. Some have moved, "That | far from punishing him, that they have prethis Thompson should ride with his face to the ferred him; and therefore they are thought horse's tail;" but that would be something se- by ill people, great favourers of this man. vere to one of his coat; but seeing he has for- Therefore I would impeach him before the got his coat all his life, the Commons may for- Lords. get it for one day. I would impeach him, that the bishops may see what their sons have done: Hæc est doctrina filii vestri.' They have so countenanced this doctrine, and have been so

273. Case of JAMES SKENE, for treasonable Opinions and Declarations* 32 CHARLES II. A. D. 1680. [Arnot's Collection and Abridgement of celebrated Criminal Trials in Scotland.]

274. Case of JOHN NIVEN, Captain of the Ship Fortune of London, for Leasing-making against James Duke of Albany and York: 32 CHARLES II. A. D. 1680. [Arnot's Collection and Abridgement of celebrated Criminal Trials in Scotland.]

THE prisoner was served with a criminal in-replied, there was not one of ten thousand in dictment at the instance of his majesty's ad- England who would say so. He added, that vocate, setting forth, that, by the statutory the duke of York was in a plot to take the law, and the practice of this realm, Leasing- king's life, and had combined with the French making, the engendering of discord between king to invade England; but the deponent canthe king and his people, and the uttering slan- not say whether the prisoner expressed these derous speeches to the disturbance of govern- words as his own opinion, or that of the people ment, are crimes of a capital nature, yet the of England. The prisoner at the same time prisoner had been guilty of them, by railing said, no man had a greater regard than him against the duke of Albany and York, the for the duke; that, under his royal highness's king's brother; by charging him with being in conduct, he had lost part of his blood in his a plot to take the king's life; with combining majesty's cause; and that he would be ready with the French king to invade England; and to hazard his life in the duke's service. with coming to Scotland on purpose to make a party to introduce Popery.-Frivolous objections to the relevancy of the indictment were urged for the prisoner, and repelled by the court +.

William Eccles, writer in Edinburgh, deposed, that, being in Dysart on the day libelled in company with the prisoner, and some others, the prisoner inquired at the deponent, and the rest of the company, what stile of reception the duke of York had met in Scotland? To this the deponent answered, he had been received according to his great quality and merit, and that he was a fine Prince;' and the prisoner

*Records of Justiciary, July 15th, 1680. +A very unjust account of this Trial is given by lord Fountainhall, in his Decisions, vol. 1. p. 108. The prisoner indisputably fell within the tyrannical statutes against Leasing-making, and there seems no doubt of his having been guilty of the fact. Fountainhall is deemed a writer of authority. He was upon the side of law and liberty; but any one who is conversant in the affairs of that period, and who compares the result of his knowledge with the cases in Fountainhall, must be sensible of the extreme partiality of that writer; a propensity which, in times such as those, it was very difficult to resist.-His partiality is the less surprising, as he appears not to have been untinged with fanaticism; and those who have occasion to compare his Journals with the original records of Justiciary, will see little reason to compliment him upon his accuracy.

Fountainhall's account is as follows: Cr. Court. July 16, 1680.-Niven, the master of a ship, was pannelled for using some rash expressions against the duke of York, viz. That he was on the Popish plot of taking away the king's life, and overturning our religion and government; and that he was to consent to the bringing over the French king with an army into Britain; and that he had come himself to Scotland to make a popish faction there, This was spoken in cups, and with some qua

The prisoner objected to William Tarbett, a waiter, being received as a witness; but his objections were repelled. Tarbett deposed, that he was accidentally in Burntisland, in the house of captain Seaton, where he fell in company with the prisoner, and two Englishmen, a shipmaster and his mate, and frequently overheard discourses between them relating to government; and heard the prisoner say, that the duke had come into Scotland to make a party for introducing popery, but our good old English hearts would not suffer that.'

Michael Seaton, against whom also the prisoner urged objections which were over-ruled, lifications; yet he was conveened on the acts of parliament against leasing-makers betwixt the king and his people, though it was objected these acts did not meet this case, he neither having lied to the king of his people, nor to the people of their king; and at the most, it was but scandalum magnatum, and in England such a process would be laughed at. Yet his defences were all repelled and the dittay found relevant, and the libel sustained, and admitted to probation, and he put to an assize, whereof 7 cleansed him, and 7 found him guilty; and the balance thus standing equal, provost Binny, chancellor of the assize found him guilty; albeit the dittay in itself was neither relevant to infer the pain of death, nor was it proven against him; but this was done to fright England and gratify his royal highness. But the moderation of lex unic. Cod. si quis Imperat. maledix is more commendable, and such a practice should not be standing on record.-It is true he deserved a severe punishment, but law cannot stretch it to death. The pronounc ing of sentence was delayed till the 4th of August, on which day they ordained him to be hanged on the 18th of August thereafter; But the judges knew the king, by the duke of York's mediation, was sending a remission, at least a letter converting the sentence to banishment, and confiscating his ship and all his goods, but preferring his creditors therein to the fisk.