See Roger North's character of him, ante, And did cause the said Carr, and divers P-166. Baron Weston seems to have been a printers and other persons to be served with the man of much boldness; for, notwithstanding same; which said rule and other proceedings these proceedings against him, he afterwards were most apparently contrary to all justice, in braved the power of the House by liberating, condemning not only what had been written upon an Habeas Corpus, Sheridan, who was without hearing the parties, but also all that in custody under a commitment of the House. might for the future be written on that subAs to the right of the Lords to try a Com-ject; a manifest countenancing of popery and moter upon an Impeachment of High Treason, see a Note to the Case of Fitzharris, A. D. 1681, See the Case, vol. 7, p. 1111, of this Colin this Collection. lection.

discouragement of protestants, an open invasion | commit and detain in prison, in such unlawful upon the right of the subject, and an encroaching and assuming to themselves a legislative power and authority.

manner, among others, Henry Carr, George Broome, Edward Berry, Benjamin Harris, Francis Smith, sen. Francis Smith, jun. and Jane Curtis, citizens of London: Which proceedings of the said sir William Scroggs, are a high breach of the liberty of the subject, destructive to the fundamental laws of this realm, contrary to the Petition of Right, and other statutes; and do manifestly tend to the introducing of arbitrary power.

IV. That he the said sir William Scroggs, since he was made Chief Justice of the King's Bench, hath, together with the other judges of the said court, most notoriously departed from all rules of justice and equality, in the imposition of fines upon persons convicted of misdemeanors in the said court; and particularly in the Term of Easter last past, did openly de- VI. That he the said sir William Scroggs, clare in the said court, in the case of one Jes- in further oppression of his majesty's liege sop, who was convicted of publishing false people, hath, since his being made Chief Jus news, and was then to be fined, That he would tice of the said court of King's-bench, in an arbihave regard to persons and their principles in trary manner, granted divers general warrants imposing of fines, and would set a fine of 500l. for attaching the persons and seizing the goods on one person for the same offence, for the of his majesty's subjects, not named or des which he would not fine another 100l. And cribed particularly in the said warrants: By according to his said unjust and arbitrary de- means whereof, many of his majesty's subclaration, he the said sir William Scroggs, to-jects have been vexed, their houses entered into, gether with the said other justices, did then and they themselves grievously oppressed, impose a fine of 100l. upon the said Jessop; contrary to law. ́although the said Jessop had before that time proved one Hewit to be convicted as author of the said false news; and afterwards, in the same Term, did fine the said Hewit upon his said conviction, only five marks: Nor hath the said sir William Scroggs, together with the other judges of the said court, had any regard to the nature of the offences, or the ability of the persons, in the imposing of fines; but have been manifestly partial and favourable to papists, and persons affected to, and promoting the popish interest, in this time of imminent danger from them: And at the same time have most severely and grievously oppressed his majesty's protestant subjects, as will appear upon view of the several records of fines set in the said court. By which arbitrary, unjust, and partial proceedings, many of his majesty's liegepeople have been ruined, and popery countenanced under colour of justice; and all the mischiefs and excesses of the court of Star-Chamber, by act of parliament suppressed, have been again, in direct opposition of the said law, introduced.

V. That he the said sir William Scroggs, for the further accomplishing of his said traitorous and wicked purposes, and designing to subject the persons, as well as the estates of his majesty's liege people, to his lawless will and pleasure, hath frequently refused to accept of bail, though the same were sufficient, and legally tendered to him by many persons accused before him only of such crimes for which by law bail ought to have been taken, and divers of the said persons being only accused of offences against himself; declaring at the same time, that he refused bail, and committed them to gaol only to put them to charges; and using such furious threats as were to the terror of his majesty's subjects, and such scandalous expressions as were a dishonour to the government, and to the dignity of his office. And, particularly, that he the said air William Scroggs did, in the year 1679,

VII. Whereas there hath been a horrid and damnable plot contrived and carried on by the papists, for the murdering the king, the subver sion of the laws and government of this king. dom, and for the destruction of the protestant religion in the same; all which the said sir William Scroggs well knew, having himself not only tried, but given judgment against several of the offenders: Nevertheless, the said sir William Scroggs did, at divers times and places, as well sitting in court, as otherwise, openly defame and scandalize several of the witnesses, who had proved the said treasons against divers of the conspirators, and had given evidence against divers other persons, who were then untried, and did endeavour to disparage their evidence, and take off their credit; whereby, as much as in him lay, he did traitorously and wickedly suppress and stifle the discovery of the said Popish Plot, and encourage the conspirators to proceed in the same, to the great and apparent danger of his majesty's sacred life, and of the well established government, and religion of this realm of England.

VIII. Whereas the said sir William Scroggs, being advanced to be Chief Justice of the Court of King's Bench, ought, by a sober, grave and virtuous conversation, to have given a good example to the king's liege people, and to demean himself answerable to the dignity of so eminent a station; yet he the said sir Wil liam Scroggs, on the contrary, by his frequent and notorious excesses and debaucheries, and his profane and atheistical discourses, doth daily affront Almighty God, dishonour his majesty, give conntenance and encouragement to all manner of vice and wickedness, and bring the highest scandal on the public justice of the kingdom.

* See this Case referred to by Mr. Dunning in his Argument in the Case of Leach 7. Money and others, a. D. 1765, in this Collection.

All which words, opinions and actions of the said sir William Scroggs, were by him spoken and done, traiterously, wickedly, falsly, and maliciously, to alienate the hearts of the king's subjects from his majesty, and to set a division で between him and them; and to subvert the fundamental laws, and the established religion and government of this kingdom, and to introduce popery, and an arbitrary and tyrannical government, contrary to his own knowledge, and the known laws of the realm of England. And thereby he the said sir William Scroggs hath not only broken his own oath, but also, as far as in him lay, hath broken the king's oath to his people; whereof he the said sir Willliam Scroggs, representing his majesty in so high office of justice, had the custody; for which the said Commons do impeach him the seid sir William Scroggs, of the High-Treason against our sovereign lord the king, and his crown and dignity, and other the high crimes and misdemeanors aforesaid.

would have the statute 1: Mary read which declares "That nothing shall be construed treason but what is already so by 25 Edw. 3. No otherwise declared, but by act of parliament.” I would not, in behalf of the subject, make new treasons. Serjeant Maynard. What Knight says of 25 Edw. 3. is very true, but by a distinction it must go. The question moved is, "Whether any punishment of any offence can be by the name of treason in parliament ?" No man can deny it. But enormous offences may be im-. peached by the name of treason, notwithstanding the statutes. There was a treason at common law before the statute of 25 Edw. 3, and the judges took upon them to determine treason. But, by that statute, the judgment of treason, in doubtful cases, is expressly reserved to parliament, amongst other things." But because men cannot think what sort of men may be judges, they shall not proceed in a doubtful case, but shall acquaint the parliament, which And the said Commons, by protestation sav- is not to have an act made, but by judgment in ing to themselves the liberty of exhibiting at parliament to declare it treason." What treaany time hereafter, any other accusation or im- son is, no man can define, nor describe. In that peachment against the said sir William Scroggs statute it is not; but treasons are enumerated;" and also of replying to the answer that he shall" only those, and those cases; if any other make thereunto, and of offering proofs of the premises or of any other impeachments or accusations that shall be by them exhibited against him, as the case shall (according to the course of parliament) require; do pray that the said sir William Scroggs, chief justice of the court of King's-bench, may be put to answer to all and every the premises, and may be committed to safe custody; and that such proceedings, examinations, trials and judgments may be upon him had and used, as is agreeable to law and justice, and the course of parliaments. *

Upon the above Articles the following Debate took place.

cases come before them, they shall not proceed upon them, but shall acquaint the parliament. If an offence be committed, the parliament shall judge whether it deserves the punishment of treason," What if, as in our case, in interval of parliament, there should be a contrivance to destroy all the Lords and Commons; is that comparable to the treason of coining a shilling? After the statute 25 Edw. 3. many acts were made Treasons on particular occasions, as in Hen. 6. Hen. 8. Edw. 6, 1 Mary, "None shall be judged treason, but what is so by 25 Edw. 3. in reference to the courts below." If an not bind him. And will any man think that act of parliament does not name the king, it does the Lords will let their throats lie open to be cut, and not judge such a conspiracy to be treason? Whatever offence deserves the punishment of a traitor, the parliament may impeach, &c. and the Lords judge accordingly. Before the statute 25 Edw. 3. a lord did raise eight hundred men, &c. and it was judged but a riot. Where the offence is a public destruction to the nation, as all offences to the king, as coining, &c. it is treason; but in a riot, the intention and scope is on particular persons, and was not judged treason in the levying eight hundred men, &c. To destroy the inclosure of particular persons, is not treason; but to go in great numbers to destroy all inclosures in general, is treason; for it differs in the scope and intention of the party. In this case before you, here is a design and I appoint John Wright, and Richard intention to destroy the nation, and our reliChiswell, to print these Articles of impeach-gion, and people combine to form companies ment, with the Resolution of the House of and raise arms, and intend to destroy the *Commons relating to the same, upon Wed- Lords and Commons. Think you, that this nesday the 5th of Jan. 1680. Perused by me cannot be judged treason? Now comes the staaccording to the order of the House of Com-tute, and says "Ifsuch an offence, as men cannot mons; And that no other person presume to define, should happen, the judges are to acquaint print them. WI. WILLIAMS, Speaker.' the parliament with it." And an act of par

Sir Francis Winnington. It is said, by Maysard, That the first article is general. All I can say is, that it is a substantial article, "To subvert the fundamental laws of England, and to introduce popery and arbitrary government by words, actions, and opinions." That article was a great crime, when that learned serjeant was concerned in the impeachment of lord Strafford.

Sir John Knight. That article was then of great importance. In lord Clarendon's impeachment lord Strafford's case was cited; but there they proceeded by act of parliament, and within two or three days passed it, with a clause of not being hereafter drawn into example. I

fiament does not bind the parliament unless the the city juries, where great fines have been parliament be named. General words shall imposed. There can be no higher crimes than never take away the right of the nation, in the Scroggs is accused of; but as to the word judgment of Lords and Commons, The words traiterous," "that he did traiterously discharge about Hen. 8. and the taking his wife again, the grand jury, &c. Still I take before.me &c. were as strange a thing as we can imagine. what the proof will be; for the Court will judge Since 25 Edw. 3. in Rich. 2.'s time, some that according to that, and not your title of the betrayed a castle in France, by judgment of impeachment. It may be, the judges did this parliament, without more ado, were beheaded; to aggrandize themselves. I would consider, and that is a different judgment from the law whether to say "an universal subversion of in case of treason. What the act 25 Edw. the laws," to that one particular action of dis3. does reserve for parliament, shall not be judg- charging the jury. If you expect no bigger ed in any inferior court. 1 Mary-Not to define judgment from the Lords than the misdebut enumerate what the judges shall judge. In meanor, consider of it. The rest of the judges Rich. 2.'s time a judgment was declared in par- are equally guilty in this matter; it was the in liament against Tresilian. The statute does tention of all the four judges. Call it by a not define before-hand; but when an offence lower name of offence; you cannot have a does fall, then to judge it. Sometimes the par- higher judgment from the Lords than you com liament have judged hanging and drawing, and plain of. If the parliament happen to rise benot quartering nor embowelling, and sometimes fore the matter be judged, the impeachment beheading only. In treason, the forfeiture is remains upon record, and may be proceeded to the king; in felony, to the lord of the manor. in, the next parliament. I have stated the This case we now debate is no case enumera-matter, in every part, plainly, not in favour of ted in 25 Edw. 3. But take that power away of declaring treason in parliament, and you may have all your throats cut. (He spoke low, not well to be heard.)

Scroggs; that, if any thing should fall out, you may not be unprepared. Another thing may fall out; if the charge be treason the bishops are not to be judges of it, and so you Sir John Otway. No doubt nor question but may have the better effect of it. In the body an offence shall be treason, if King, Lords, and of the articles is the very evidence, and it may Commons declare it so, since that statute 25 be of great inconvenience to show the Lords Edw. 3. This article against Scroggs is very the nature of the crimes from the evidence uncertain. Has he broken the fundamental itself. If the Lords happen to say, This is laws of the nation ?h Wherein ? It is a hard but a single act; they may make a question thing for a man to fall under the displeasure of whether to commit him for treason? And whethe House of Commons. No subject is too big ther the Lords be free to make this a declafor them. It had been a great satisfaction for ratory treason? Let us take care, not to put the Seroggs to have acknowledged the offence here Lords too often to renew their orders, as in lord and explained himself; and it has been fre- Danby's case. If you intend to print this, I quently done here by some Lords; as the duke suppose you intend it not a censure by act of of Buckingham, and lord Arlington, who ex-parliament. If the charge must be as you lay plained their actions, &c. and upon satisfaction, it, all acts, for the future, of the judges, will the House has forborne to impeach. Mr. Thomp-be the same in what may follow hereafter. I son of Bristol was heard at the committee; so would be better informed by learned men, if was sir John Davis of Ireland. Lord chief this should fall out, to consider what difficulties justice Keeling was heard in the House, upon you will be upon. In Lord Strafford's case, complaints against him, and the matter went no because such judgments should not for the farther. I would have Scroggs sent for, to future be given by the judges, therefore the know what answer he can make for himself. Commons proceeded by bill of attainder, and Let him have the same justice others have had. not by judgment. Sir Thomas Lee. I am one of those who think that by that statute the parliament is not so bound up, that, when such enormous of fences are committed, by judgment of parliament they may be made treason, and no doubt of it for the safety of the government. But now as to this particular person, in what degree will the Commons make their complaint to expect judgment from the Lords? As the Articles are framed, you must change your title; but whether it is prudence to dress your arti cles in these terms, is the question. It was an odd sort of practice of the judges in the case of sir Samuel Barnardiston, &c. to construe "maliciously, &c." but pepper and vinegarsauce. They told the jury, "Find you but the fact, and we shall lay the crime in law." I often have taken this for a great mischief in

Sir Francis Winnington. To the first point, "Whether the declaratory power of treason be in the parliament ?" Although doubted the other day by Jones, yet if you consider the arguments in lord Danby's case, the House was delivered of that difficulty. Taking that point for granted, if this article be true, now we are come to a mature debate, read the articles one by one. As to the fairness of the thing, when enormous crimes are committed, it is our duty to take care to question them.

Sir Thomas Meres. When I heard this ar ticle read, I did think it was an article by itself; and now I perceive that the other arti cles must explain this. But if the treasons be in the following articles, I would see them. It is not for the interest of the Commons to mul tiply treasons; but still to consider whether

this be treason at common law; for when we do think this man (Scroggs) is not fit for his have declared it treason, the judges at West-place, and has done crimes fit for great punish minster Hall must judge so. In the case of ing. Consider that all the ill precedents have lord Clarendon's impeachment the Lords did been the result of mens prejudices in odious object, "That our charge was general trea- cases. When we suffer ourselves to be transson;" therefore I desire to express particular ported, we may proceed well in this case, but matter in this charge. Pray be wary in that ill for ourselves and our posterity. point of too many declaratory treasons.