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Tið el modis.
Lords and us.
sent in person bere. If any speak against this mapded him to let the House know his care House abroad, we send for him.-No ques- about Floyde. Thanks to the House, for their hon, bat, opon his confession, we might, for love to him, and his children. That the king the reason aforesaid, punish him ; and may bath given order, upon Floyd's petition to his do it bere, without oath, if the House satisfied learned counsel, to examine Floyd. That the
petition was delivered by Richard Floyde, & Geor, Moore. To acknowledge no'error where the king thought it had been Edward in our judgraent, nor to contest with the king. Floyd himself. That Floyd now examined To pass a bill.
by Mr. Attorney and sollicitor denieth it. Upon question, to address ourselves, in this Will
, to morrow, give order, to liave this exacase, to his majesty.
mined by the Lords, upon oath; and, if it shall Muler of the Wards. That the Speaker, be proved there, will punish it, according to with the whole House, may present our re- our desire; conceiving us to have no power of quest to bis majesty. So Dir. Wandesford. an oath. That for the precedent 1 H. 4. the
Sir Nath. Rich. Because nothing crosseth king (whereto Mr. Speaker replied) was preeur judgment, but the precedent 1 H. 4, which pared to have given an answer; but did for. u excellent record for us, made in that parlia- bear, in respect many there were no niembers ment, wherein the most prodigious fact done, of this House. 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 d.
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 content and punishi bim.
absolutely denied. That the king, upon this &r Jo. Chamberlayne,
Feareth, this going denial, the more desirous to pumsh 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 Mr. Noye. Well resolved-to go to the king right, of judging this business here, or to go to To give him full satisfaction in some things. the Lords in this, as we have done in all other Have stayed any execution of our judgment. business this session. For the queries made; if any man of the House Sir J. Perroio. To have it considered, whe.' had beaten Floyd, the king would not have ther we be a court of record, and whether we been offended Much less our judgment. have not power to give an oath. Not to contest with the king, of our right. To Sir W. Strowde. This no seasonable motion Set down our reasons, moving us, in this parti- now. To go to the Lords. That examination cular cause, to proceed as we have done : will be long, and will defer his punishment. Por the general ; not to disclaim our right, but To go about that now, which may best advance to take time to search precedents.
the good of our countries. Sir Francis Seymor. To have only ten or Sir Ro. Phillippes. In our judgment as much twelre to attend the Speaker to the king. No love to the king, and his, as ever from any debate with the king. To search precedents House of Commons; and as much duty, in
desiring the execution, as ever from any. To Sir Wm. Strowde. To leave it to the king, sit down, and meddle no more in this business. whether the whole House, or a select number, Mr. Alford. This House never so shaken to attend the Speaker to the king.
in Judgment, as now. Our judgment geneSir Francis Fane. Accordant.
rally known. That done by us, in one case, Sir Tho
. Jermyn. A committee, to with for the king's issue. draw themselves presently, to set down in Sir D. Diggs concordat with sir Robert Philwriting, what shall be presented to the king lippes.
Sir Tho. Jermyn, accordant. If any could Sir Edw. Mountagew. Not in our power to maintain what we have done, would never sit appoint
, whether the whole House, or fewer, down. If that true, which we have heard shall come to the king. To leave that to himhere, this the greatest court of England, and Mr. Secretary, Chancellor Exchequer; Máster the least power. of the Wards, presently to signify to his ma- Sir Wm. Herberte. We have given our jesty the desire of the House.
judgment: The king may stay the execution : Master of the Wurds. To take especial We cannot help that. care of sir Nath. Riche's motion, to answer the Mr. Mallet. This a court; where law, and record of 1 H. 4. Neither to accuse, or ex- discretion. The best discretion, to leave this euse ourselves. To shew our judgment to matter now. have been hastened by our zeal. To desire, Sir Edw. Sackvyle. While Floid not punishthe king will deal with us, as a father. ed, we all suffer. No loss of privilege, for the
Lords do concur with us in the sentence, not to May 4.
confirm ours. Mr. Secretary. That the king hath come Sir Geor. Moor. Thinketh yet, they gave
by the Speaker
this judgment juste, as well as justum: For ment 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 Mr. Smyth. That the earls marshal, in this plain. Not to go to the Lords. To rest here. case, upon complaint would have punished it; For that his majesty may stay the execu- yet examine not upon oath. Knoweth this in tion.
his own case. Sir Edw. Cecill. We the sinews of the com- Sir Tho. Wentworth. That the judgment monwealth. To regard our loyalty, and the rightly given execution may be stayed by the honour of this House. Not to go to the Lords, king: So hath been, of judgments given by the to move them to patch up our faults.
Lords. Sir Tho. Kow. The liberties of this House Sir Edw. Coke. Judgment not to be stayed, much shaken now. Thinketh our judgment for Great Seal, sc, yet where felony or trearightly given and may stand upon record here, son, the king may stay the proceeding. This as our claim. That this cannot now come to judgment given to the king : For his blood. the Lords, either with us, or without us: Not Any man may stay his own suit. Not to queswith us, without our disgrace; nor without us, tion the judgment. Every man, though abbecause cannot take notice of any public grie- sent, involved in the judgment; yea the judgvance (as this) without complaint thereof from nient his, though he of a contrary opinion. hence.
Concors discordia. The judgment already enMr. Treasurer. Not moved, or intended, we tered. The king may stay the execution, should not carry this to the Lords, or consent to where he only party. In appeal, not to stay ; it; but leave the course thereof to the king, in indictment, otherwise. and speak no more of it.
Sir Tho. Warton. Pirst to read the judgment. Mr. Secretary, accordant.
Mr. Sullicitor. Will not go about to dissuade Sir H. Withrington. Thinketh not, but we them from this. Not to do fit things unseahave power to give an oath ; And, for prece- sonably. That this question grew by a mesdents; every precedent had a beginning: sage from the king.
Sir H. Poole. To proceed in this by way of Sir Edw. Coke, Sir Ro. Phillippes, Mr. Noy, bill.
Mr. Alford, sir Sam. Sands, Master of the Sir Edw. Gyles. Not to wave our right. Wards, sir Nath. Rich, sir Edw. Cecill
, preThinketh in his concience, we have done well, sently to retire into the committee chamber, and judicially. Not to go to the Lords in this and to set down in writing, the judgment.
To leave it to the king, and with the Sir Edw. Suckoyle. That all our proceedings king.
may be entered here, and kept as Records. 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. The Report in Grey's Debates of the speeches To go once again to the king, and to let him made in the House of Commons in the progress know, what we have done, hath been out of of the Proceedings against 'Thompson is as our zeal and love to him, and fris children. To follows : desire him, once again, to do with us, as a father; and not to put us over to the Lords, but
Upon realing the Report of the Committee bimself to end.
appointed to examine the complaint against him Sir Sam. Sands. No member of this House
3. sup.) 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 corum non that are Presbyterians.” Put him into the hill judice. A court of record: Therefore may of banishment of the papists. give an oath.
Disuse loseth no privilege. Sir Francis Winningion. I take this buflow long have the Lords disused to give judg-siness to be of great concernment. When I 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 runs here abuses to the members of our House, upon. First, bold and impudent reflections on 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 conhim bring his Writ of Error. No corruption fidently and rantingly assert popery; and next in us, bui by our love to the king. We judge asserting of arbitrary power. He is a most many things, wilhvui vath. Sheriffs, &c. pass admirable preacher, and takes upon him to a 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 palp ail protest, as deeply, and credibly, here, as in imposing these doctrines, and this magnifir could be by swearing upon a book.
his offence, that it was done in interval of parSir 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 will
this man. I have heard of a precedent of sen- one of the most capital cities of the kingdom? tencing such a person to ride through the city His punishment cannot be too great. He has with his face to the horse's tail. If you banish not only defamed the king, but spoken rehim, it is the way to make him a cardinal; proachfully of the protestant religion, and of such company as you intend in your bill is pre- queen Elizabeth. No one protestant would do ferment to him: Some men we see will strug- it, and he has cast the plot upon the protestants. gile hard to keep the protestants from being Should you pass but a light censure upon this united, and I must believe that, at the bottom, man, he would laugh at you. Therefore bo they love popery better than the protestant re- sure that in your vote you hit upon every ligion. We may raise a dispute amongst the thing he is guilty of. Two or three gentlemen Lords; though the man seem too little to im- may withdraw, and word the question. peach, yet his crimes are great enough for the Cannons of England to charge him upon;
Upon proposing the Vote against him, (see and let the bishops see what kind of cattle these p. 7. sup.) are that scandalize the church. Therefore I Sir William Jones. You have made a just would resolve upon some questions, viz. “ That Vote, but if you do no more, he will come off he has impudently scandalized his majesty and too lightly. You may trust him now with this the protestant religion ;” and when you have Vote in any judicature; but I would stop the put these to the vote upon him, the best way is mouths of his fellows, and in the face of all the to make him exemplary. I was thinking of a world, I would publish the evidence against short bill, to pat a character of disability upon him, and let the church-men see what sort of him, for really there are such a multitude of sons they have. They who think him too little people in the plot (and that borders upon it) that for impeachment, think him too big for a bill ; you cannot well impeach him. Such sort of but, to prepare the Lords and all men for his people as these absolutely endeavour to destroy sentence, I would impeach him. ile doctrine of the church, and to bring in
Colonel Titus. No man thinks that this popers, 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 mi
of Bohemia had sentence, by im- nisters. 'T'he 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. Mainwaringt 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 Sir Tho
. Lee. It is necessary that you take the beginning of this case, p. 1. notice of this matter. This spiritual sword, + See his Case, vol. 3, p. 335, of this Colwhich they all complain of, does the mischiet 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 i 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." bis 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. Biroh. 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
the Lords, they refer the whole to their ComCol. Titus. When one considers what mon- mittee of Privileges, with leave to the bishop strons conspiracies are against our liberties, and to allege any thing before the said Committee, se change the government both of church and on his part
, either by pardon, licence, or otherstate
! There are a sort of protestants, who wise. On the 21st of April, they order the remake use of the profession of the protestant cords to be brought, that the House may de
But on the 28th of April, where did this Mr. Thompson do this, but in the king sends a message by the Lord Keeper,
“ That his majesty, understanding there was * See Floyde's Case.
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 Sir W. Jones. I cannot tell when his imthe bishops may see what their sons have done: peachment will have an end, whether ever or • Hæc est doctrina filii vestri.' They have so no; therefore I would publish what is against countenanced this doctrine, and have been so him, as a warning to other church-men, and in
justification of yourselves. now bishop of St. David's, had given command Sir Fr. Winnington. I look upon this charge that the said Dr. Mainwaring shall not come against Thompson as a national business, and and sit in parliament, nor send any proxy to to be part of the plot; and such things as these the parliament.” Thereupon, it was ordered are fit to be known to the world, that they may to be entered so. Lords Journal. “ I do not see what is libelled upon the king: recollect,” says Mr. Hatsell, “ to have seen Mr. Harbord. Some of the clergy are 50 this last very extraordinary and illegal) exer- afraid that we should unite, that they are almost cise of the king's authority taken notice of in papists themselves; and as for the church of any history." See further, Commons Journal, England that have endeavoured to asperse us, the 23d of Feb. 1640.–See, too, Sheridan's let the world see what sort of cattle they breed Case, A. D. 1680, 1681.
273. Case of JAMES SKENE, for treasonable Opinions and Decla
rations :* 32 CHARLES II. A. D. 1680. (Arnot's Collection
and Abridgement of celebrated Criminal Trials in Scotland.] The prisoner, who was brother to the laird ledged the burning the acts of parliament, beof Skene, was prosecuted at the instance of his cause they were against the Covenant; and majesty's advocatent for high treason. He was would not admit the authority of the king or charged in the indictment with being accessary parliament in things that were against the Coto the rebellion headed by Balfour of Kinloch, venant. He did not know if any new insurrecand Hackston of Rathillet, at Air's Moss and tion was plotted; but he believed that God's Bothwellbridge; with having maintained the people were always ready to take arms in delawfulness of that rebellion, even in presence of fence of themselves and of the gospel ; that he the duke of York, and of the lords of privy was one of God's people, and had resolved to council, and those of justiciary; with having give a testimony for the cause.- He thought justified the excommunication of the king, and the killing of the archbishop of St. Andrews having maintained it was lawful to kill him, &c. was not murder; That there is a declared war
The proof adduced against the prisoner was between those who serve the Lord, and those his own confession, emitted before the duke of who serve the king against the Covenant; and York and privy council on the 13th November that it is lawful to kill such in defence of the 1680, of which the tenor follows:
gospel ; That the king being excommunicated, He said, he did not know who were rebels, and there being now a lawful declared war but denied that he was present at the battles of against him on account of the breach of the CoBothwellbridge and of Air's Moss. He thought venant, it is lawful to kill him, and all those who the persons engaged in those insurrections were are in opposition to the Covenant. not rebels, for they were in defence of God's He renewed his confession before the Court cause. He was not at the Torwood conventicle and Jury. He was desired to deliberate before when the king was excommunicated, nor did he he should sign it: He answered, he had reknow who contrived it, but he thought the rea-solved to sign it; he thought it his honour to sons of the excommunication just. He acknow- do so; and he did it accordingly,
The Jury unanimously found the prisoner * Records of Justiciary, Nov. 22, 1680. “ guilty of the treasonable crimes and expres
+ Fountainhall merely makes mention of this sions mentioned in his dittay, and that by his Case with that of two other persons, thus: own confession.” The Court sentenced him to “ November 22, 1680, James Skeen condemned be taken to the Cross of Edinburgh on the 24th to be hanged for disowning the king ; and on of November instant, to be hanged on a gibbet the 29th of November thereafter Potter and till he be dead, his head to be separated from his Stewart are condemned for the same." Deci- body, and fixed on the Netherbow, and his whole sions, vol. 1, p. 117.
estate, real and personal, to be forfeited.
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 Abridge
ment 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 Focate, 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 bad 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 The prisoner objected to William Tarbett, a party to introduce Popery:-Frivolous objec- waiter, being received as a witness ; but his tions to the relevancy of the indictment were objections were repelled.
Tarbett deposed, urged for the prisoner, and repelled by the that he was accidentally in Burntisland, in the court
house of captain Seaton, where he fell in comWilliam Eccles, writer in Edinburgh, de- pany with the prisoner, and two Englishmen, a posed, that, being in Dysart on the day libelled shipmaster and his mate, and frequently overin company with the prisoner, and some others, heard discourses between them relating to the prisoner inquired at the deponent, and the Fernment; and heard the prisoner say, that rest of the company, what stile of reception the duke had come into Scotland to make a the duke of York had met in Scotland ? To this party for introducing popery, but our good the deponent answered,' he had been received old English hearts would not suffer that.' according to his great quality and merit, and Michael Seaton, against whom also the prithat he was a fine Prince;' and the prisoner soner urged objections which were over-ruled,
• Records of Justiciary, July 15th, 1680. lifications ; yet he was conveened on the acts
+ A very unjust account of this Trial is given of parliament against leasing-makers betwixt by lord Fountainhall, in his Decisions, vol. 1. p. the king and his people, though it was objected 108. The prisoner indisputably fell within the these acts did not meet this case, he neither tyrannical statutes against Leasing-making, having lied to the king of his people, nor to the and there seems no doubt of his having been people of their king; and at the most, it was guilty of the fact. Fountainhall is deemed a but scandalum magnatum, and in England such writer of authority. He was upon the side of a process would be laughed at. Yet bis delaw and liberty; but any one who is conversant fences were all repelled and the dittay found in the affairs of that period, and who compares relevant, and the libel sustained, and admitted the result of his knowledge with the cases in to probation, and he put to an assize, whereof Fountainhall, must be sensible of the extreme 7 Cleansed him, and 7 found him guilty ; and partiality of that writer ; a propensity wbich, the balance thus standing equal, provost Binny, in times such as those, it was very difficult to chancellor of the assize found him guilty; resist.-His partiality is the less surprising, as albeit the dittay in itself was neither relevant be appears not to have been untinged with to infer the pain of death, nor was it proven fanaticism; and those who have occasion to against him; but this was done to fright Eng. compare his Journals with the original records land and gratify his royal highness. But the of Justiciary, will see little reason to compli- moderation of lex unic. Cod. si quis Imperat. ment him upon bis accuracy.
maledix is more commendable, and such a Fountainhall's account is as follows: practice should not be standing on record. It
Cr. Court. July 16, 1680.-Niven, the is true he deserved a severe punishment, but master of a ship, was pannelled for using some law cannot stretch it to death. The pronounce rash expressions against the duke of York, viz. ing of sentence was delayed till the 4th of Aų. That he was on the Popish plot of taking away gust, on which day they ordained him to be the king's life, and overturning our religion hanged on the 18th of August thereafter': But and government ; and that he was to consent the judges knew the king, by the duke of York's to the bringing over the French king with an mediation, was sending a remission, at least army into Britain ; and that he had come him- a letter converting the sentence to banishment, self to Scotland to make a popish faction there, and confiscating his ship and all his goods, but This was spoken in cups, and with some qua- preferring his creditors therein to the tisk.