Page images

" If you come and call this treason, the judges | Those who were for ship-money, were for that will call it treason; and will you give them to be treason, " To alienate the affections of the that power ?” But the declaratory power is to people, &c.” “ Subverting the fundamental be argued for every special case ; and if so, it is laws” was as general an article then, as this not an argument to support declaratory power is now. Now the question is, if any thing be in the judges, but to prevent it. In the case of unanswered-But it may be said, “ But will Empson and Dudley, the judges could not pro- you let the judges declare it treason in their ceed upon those indictments i Hen. 8. They judgments, when the parliament has declared came to parliament, and the history says, they it treason ?” Certainly there is no danger at all were attainted in parliament; lord Herbert, in in that. In lord Strafford's case, by the Ne his history, says, “ For adhering to the king's trahatur in exemplum,' people thought it was enemies. But the journal of the Lords bap- never to be done again-The judges may take pened to be inspected in king James's time, the indictment in a doubtful treason, but must when the Lords intended to give a judgment, bring it to the parliament. All the mischief is but they found it only misdemeanor–The at- a bill of attainder, and a Ne trahatur, &c.' torney-general brought in the indictment of If great offences as these escape without such Empson and Dudley, and the Lords took no- judgment, how shall we come at other great tice of it, and called it “ Proditorie," though men that shall offend, &c.? If this comes to it was but a bare encroachment. In the forty the Lords, in their court, to judge, they will articles agaiust sir John Finch, and the articles give a judgment suitable to the fact ; our call. against justice Berkeley, they were indicted of ing it treason will not make it so-An Englishtreason, in the general articles, as in this case; man ought to be content with that judgmentthey refused a lawyer to plead before them in But the question is, Whether the Lords will the case of Ship-money, and they refused a jury commit Scroggs upon this impeacliment?! to enquire into the misdemeanor of the spiritual had rather such a man was tied up, than let courts; and all the articles said, “ Prodiioriè :" loose. The commitment of lord Danby was by For here is a thing we must consider: The solemn entry in the Lords' Journal ; and why Chancellor is keeper of the king's conscience, should we suppose a difference with the Lords and the judges of the king's oath, to do equal about his commitment? when a rule is settled justice, “ secundum legein terra,” and when in their journal, when the Lords sball, upon they impose arbitrary power, it is not as in the examining all due circumstances, find the case of trespass or felony, but that is to subvert charge not to be treason, we must be content, the government. The case of justice Thorpe, The judges, by thus discharging juries, take 23 Edw. 1. ' Sacramentum Domini Regis et upon them a legislative authority, and power to * suum maliciosè, falsò, et rebellitèr falsifica- inuzzle men, and sew up their mouths against • cavit.' So we must judge things according to the laws; and shall not the parliament deal with reason. This man was supposed to be learned them? The juries were discharged before they and virtuous. He has the keeping of the made their presentments. Shall they tell us king's oath, and he has betrayed it; Thorpe we shall bave no law? I would know, whether

did so, and was hanged. I am not now to all the former offences men have been judged :: make a declamation against Scroggs, but for upon in parliament do come up to this?" Har

my country. In the Mirror of Justice, Fo. ing said this of the power in parliament of de185. three of a jury acquitted a man, and nine claratory treason, the point is well settled, not found him guilty ; a judge put out three, and to be shaken. Less crimes than these were put in three who found it; and the man was formerly called treason. Let us not shrink nok hanged, and the judge was hanged for it. If be afraid in this; we have precedents on our not checked in the career, a man will sides. I have no prejudice against the gentletell us when we shall have justice, and when man, but pray let the articles pass. we shall have none; and he certainly de- Serjeant Maynard. What you have been serves the censure of treason. “ Great offi- told by a gentleman of 11 Rich. 2, is very parcers have much to lose, and it is an awe upon ticular, and very observable, “The Commons them," Finch said; but I am more afraid of pray, that those who surrendered the castles, an arbitrary judge, than of the Lords and five &c. may be put to answer to the articles there hundred Commons judgment. A man will be upon." Richard Weston delivered the castle content to be hanged when the parliament says at Berwick to the king's enemies, when he had he is naught. (The House laughed.) He victual enough and munition to have held it would be ashamed to live ; he would bave little out. He had judgment in parliament, to be comfort to live, especially in his own country hanged and drawn for delivering that castle, but where the parliament shall think him a traitor. embowelling was no part of the sentence. Com In Husband's Collections of the Transactions of mines, for delivering the castle at Arles; vith1641, &c. the attorney-general exhibits articles out leave of the king, he went away from keepof treason against the tive members, for doing ing the castle: Ogle defended the place-He their duty in parliament, viz. " That they had was judged to death because he left the castle, endeavoured to alienate the affections of the One was beheaded, the other was drawn and people against the king.” It is not said, “ To hanged, and yet the charge is not “ Proditealienate the affections of the king from the rie," but by his default they left the castkes, people, when they cannot have justice”- and were to answer it in parlament; and they

He had

no more.

were punished as by award of the seignors and son, and not felony. Sir Thomas Hacksy, barons, and had judgment of treason ; so that priest, proffered to the Commons a restraint of here is judgment of treason in one case of fe. the excess of the king's house; the king took lony. In the other, 25 Edw. 3, we had much it as derogatory, &c. judged—The case of the from the civil law of Crimen læsæ majestatis, earl of Northumberland, 5 Hen. 4.

et crimen perduellionis ;' the one was an or- given liveries, and had great retainers in the dinary judgment, the other in campo martio,' north ; the parliament judged it only trespass, to be judged by senate. So that when a parti- and not treason; it came to a dispute whether calar case comes before the parliament, then it it was treason or felony, and it was judged tresis fit to be judged. But in our time, when men pass. The several judgments against Empson come to destroy religion and the whole law!-- and Dudley, &c. The oppressive proceedings of I only speak this now, that we may not be de- the Court of Wards and the word “ Prodiprised of this judgment upon a greater occasion. torie” is so: and the Lords did judge it. But

Mr. Finch. I would know, whether the de- if we may believe lord Herbert, in his History livery of a castle was not felony before that of Henry 8, the charge of Empson and Dudley judgment against Weston, &c. ? 'It must have was brought into parliament by bill against been tried by the lord constable, or lord mar- them, and it was rejected, as not being well shal

, or in parliament. I would know, whether formed, but when mended it never passed. The the Lords can alter the judgment of bigh trea- bill is extant of their restoration in blood, and it son into another punishment ? As for Rich. 2, makes no mention of their being judged in parI would not have precedents urged of that un- liament, but they were attainted by course of quiet time. If the offence was treason before common-law, at Guild-hall in London, and at at common law, it is not necessary to be felony | Northampton, Dudley. As to the business before. The Indictment of Empson and Dud- now before you, I never heard but that the subley was not " Proditorie,” but by an additional verting the fundamental laws was “ Proditori?" artice in parliament it was, “ For the adhering in an impeachment. This is spoken of Scroggs to the king's enemies," and that was treason. as a small offence, and a single act, and thereLord Keeper Finch's crimes were not greater fore a hard case; but we are beholden to the than lord Strafford's, and yet an act of parlia- shortness of his reign in the King's-Bench, for ment was made for that: I think it a hard case

The offence of Tresilian was but å to enact a man out of his life. If every erro- single act, and ship-money but a single act, neous judgment given by a chancellor should and riots, as Maynard said. But to destroy make a capital offence, and every erroneous the whole government. The discharge of the rule in the other courts of Westminster (that grand jury, as if with intention to save all the never was, nor ever ought to be high treason,) | Papists from conviction, is not this, for judges, they sit there at the peril of their ignorance. to make laws, as in the case of forbidding

Mr. Poale. It is resolved, on all hands, that printing, &c. ?' And a general warrant to seize the declaratory power of treason remains in par- persons and goods by messengers, is not this a Liament

; but it is objected, “ That it was never subversion of the government? 'I believe it declared treason but what was felony at com

was done with that intent. If Scrogʻgs be not mon law." The word “ felony” there imports a good lawyer, he ought to be, and must anno more than a great and enormous crime. In swer for his fault of ignorance of the law, as a judgment of maim, it is expressed felonice well as the rest of his charge. You cannot nayemavit. A great and enormous crime is in this go less than the word “ traiterous ;" felony

. But I shall speak to what Finch ob- else it is casting dirt upon former impeachjected, " That it must be felony before it can ments. be judged treason in parliament. The case of Mr. Finch. I am no advocate for Scroggs, Thorpe's indictment was upon the statute 25 much less for bis crimes. I only said "We Edw. 3, I shall not much rely upon that, nor ought to be cautious how we coustrue treason upon that precedent of Weston and Commines. in parliament.” Ifevery illegal act be treason, Itake it, to deliver up the king's castles or for- we are in an ill case. Ås for the case cited of dresses, whilst they are tenable , is aiding and earl of Northurs

berland, it was plain treason, athering to the king's enemies. In that of 11 and the Lords interposed for mercy to the Rich. 2, four or five judges were impeached King. As for Hacksy's case, it was repealed ; for signing an extrajudicial opinion against the and for Talbot's case, that was declared treason parliandeni

. No man could say that was fe- by the Lords alone, if you will allow that for lany. As for the objection against “ the un- a precedent. quiet times of Rich. 2, and precedents not to be Mr. Paul Foley. Sir, we are not going about taken, ke." we must take precedents where we to declare any thing treason, but to offer our can have them, and I take them always to be articles, and leave it to the Lords ; therefore most munfortunate times when there is occasion of of these arguments would be more proper auch precedents. I take all those precedents for we only impeach, they are to be the judges of 11 Rich. 2, to be legal precedents, and not whether the matter be treason or no. li is bhe excepted against. In 17 or 18 Rich. 2, true, we ought to be cautious what we do in it

, See Tunas Talbot conspired against the life of because it is not pleper that this House should the king's two uncles, and that was not felony, impeach a man for treason, without having well yet in that parliament it was adjudged tre good grounds for it. But is not the order


tbere ;

[ocr errors]

about printing a kind of an act of state to serve rather for bail than to let him go altogether instead of a law? Is not the use of grand-juries free. a very essential part of this government ? And “ 2dly, We are of opinion, that this matter is not the dismissing of them, as this judge hath been twice adjusted betwixt both Houses, did, a way to render them useless? Are not his viz. in the case of the earl of Clarendon, and warrants to seize books and papers arbitrary? the case of the earl of Danby. and doth not all tend to the subversion of the Besides, we did think it very unsafe, and not government ? and what better grounds should agreeable to justice, that he should be at large we have for our proceedings ? I think the ar- and execute his place of Lord Chief Justice, ticles are well drawn, and ought to be engrossed whilst he lies under the charge of an Impeachas they are.

ment of high treason. Sir Richard Temple. Sir, I cannot admit that “ Lastly, It may deter the witnesses, when parliaments, by impeachments before the Lords they shall see him in such great power and place can make any thing treason, but only such whom they are to accuse. matters as were treason by common law, before “ Kent, Salisbury, Macclesfield, Huntington, the Statute of Edward the third. And I think Shaftsbury, F. Herbert, Monmouth, Esser

, we ought to be so cautious of our posterities, as P. Wharton, Clare, Bedford, Manchester, not to press for such precedents, lest you put Rockingham, Stamford, Cornwallis, Suffolk, into the hands of the Lords a power, for which Howard, Grey, Paget, Rivers, Crewe.” we may have cause to repent hereafter, but Ordered, That sir William Scroggs, Chief never get back again : for the Lords do not use Justice of the King's Bench, do in this House) to part with those powers they once get. There enter into a recognizance to our sovereign lord are precedents by which it appears, that the the king, of 10,000l. with two sufficient sureties Lords have attempted to make declarative trea- to be bound with him in 5,0001. a piece ; upot sons alone, without any impeachment from the condition, that he shall attend upon this court Commons. Have a care how you give them from time to time, till he be discharged of his encouragement to proceed therein; betier keep to Impeachment brought up from the House of the other way of making

no declarative treasons Commons. but by bill.

Then sir William Scroggs was brought to the The Articles were read, and question put: bar; and after he had kneeled, the Lord Chan

Resolved, “ That the said sir William cellor told him, “ That the House had ordered, Scroggs be impeached upon the said Articles; That he should enter into a recognizance of and that the said Articles be ingrossed, and car- 10,000l. with two sureties to be bound with him sied up to the Lords by my lord Cavendish.” in 5,000l. a piece, to attend to this House from

Ordered, “ That the committee appointed to time to time, until he was discharged of his Imexamine the proceedings of the judges in West- peachment.” And asked him, “Whether he minster-ball, and to prepare impeachments could offer two sureties as were sufficient per: against sir Francis North, Chief-Justice of the sons?” And he propounded the earl of Dorset Common-Pleas; sir Thomas Jones, one of the and Midd. and the lord Hatton. Which the justices of the court of King's-Bench; and sir House accepted of; and accordingly, in opeu Richard Weston, one of the barons of the court court, entered into a recognizance. of Exchequer, do bring in such impeachments The question was propounded, “ Whether with all convenient speed."

there shall be now an address to the king, to House of Lords, January 7, 1681.

suspend sir William Scroggs from the execution

of his place, until his trial be over?” The preA message was brought from the House of vious question being put, “ Whether this ques. Commons, by the lord Cavendish and others : tion shall be now put?" It was resolved in the who brought up Articles of Impeachment, negative. against sir William Scroggs, kt. Chief Justice of

Dissentientibus, the court of King's Bench, for High-Treason " Kent, Salisbury, Shaftsbury, Huntingdon and other high crimes and misdemeanors. Clare, Rivers, Essex, Stamford, Macclesfield

, Which said Articles were commanded to be Grey, Manchester, Herbert, Howard, Suffolk read.

Pagett, P. Wharton, Carlisle, Rocking bata After these Articles were read, it was debated Crewe.” (the said sir William Scroggs being withdrawn)

House of COMMONS, January 8. " Whether, upon this Impeachment from the Honse of Commons, he shall be committed or Debate in the Commons on the Lords no not ?"

committing Lord Chief Justice Scroggs, &c. The question was propounded, “ Whether si

Sir William Jones. The charge against lor William Scroggs shall be committed or not ?" chief justice Scroggs is at common-law am Then this previous question was put, “ Whe- statute-law both. I take it to be treason in on ther this question shall be now put ?" It was person, and not in another; an inferior person tesolved in the negative.

And in one in high place, where he does ob“ Dissentiente.

struct justice, and change the law, is treason 3“ 1st, Wethat are of opinion, that he ought to common-law. We all know the plot was car be committed, are deprived of giving our votes, ried on, and that is treason. To defame the by putting only the question of bail, we being evidence, and hinder the suppression of the


plot, I say, is treason by the statutes. I say | such judges ? I would appoint some gentlemen bot Scroggs is guilty I wish he were not. to search precedents to offer the Lords a Con

The Lords, as appears by their Journals, have ference, with reasons, &c. s been pleased to read the Articles we sent up Mr. Poule. Since this matter is brought into

against him, and without hearing us, have dispute, I am the more glad that it is upon given judgment already. The prayer of the this person, with so many crimes upon him. It impeachment is, “ That the Lords would com- seems as if, right or wrong, the Lords will have mit him.” But instead of a previous question, disputes with you. The consequence every they have bailed him ; and likewise for sus- body sees. The Lords have acknowledged. pending him his place, by their books it appears that they ought de jure to commit lord Danby, they would not put a question. That is," he &c. At the beginning of the long parliament, shall continue in his place notwithstanding twelve of the bishops made protestation against your Impeachment.” In lord Danby's case, his the proceedings of parliament, and this was

change was not so plainly treason as these ar- then taken for High-Treason, and if my.notes be - ticles are, and the Lords, upon your demand, true upon general accusation the Lords took

and upon conference, declared, “That of right commiseration on them, and bailed them, and the be ought to be committed.” How it came to Commons sent up word to the Lords, “ That be good law in lord Danby's case, and not in they were not bailable but by their consent.” this, I am at a stand. I would not have any This was February 16, 1641. difference with the Lords, but out of fear of that Sir Fr. Winnington. I concur with Powle, I would not have our.privileges torn from us ; “That the management of this business in the

so that what was delivered in that conference re- Lords House relating to Scroggs looks like Eres lating to lord Danby, so pleasing to this House, an industrious disposition to break us." These

has been, in one instance, blemished by bailing proceedings to me are wonderful. I would not Seroges

, and in another by not suspending him invade the rights of the Lords in what they do., habis place. I would appoint therefore a com- They are now in their judicial capacity as a

mittee to prepare the matter, that by Monday court, and not in their legislative, and so wo morning you may be able to go to Conference may search the record, and take out copies. with the Lords about it.

The fact has ben stated, and I have been indus. &r Thomas Lee. This is not the first time this trious to enquire into the reason. It is wonderguestion has been in this House: in the case of fulto all I speak with. It is said “ Their reabord Clarendon's impeachment, the Lords would sons are, that this charge is not treason within

Dot commit him before the Articles were brought the statute, and so it is discretionary with them, skup.

The Lords refused it, the Commons insist- and they may alter their order." But the staEsed upon it, and the consequence was, lord Cla- tute is out of their case. We shall show them - Frendon ran away, made his escape, and to salve they are in the wrong, as well as in Danby's sistpall, the Lords sent down a bill of banish- case. But as for altering their order, we have

ment. In the case of lord Danby, the Com- as great right in the process and management mons sent up articles of impeachment, which of the impeachment as in the justice of it. were not so directly treason within the statute, The reason is, that the person is only answerthe other, and after several Conferences, able for the crimes

, and I never heard that the - Wexpedient was found out ; which

was a pro- persons that are to judge became bail for the z poration of the parliament. Now the Lords person to be tried. We are like to have admira

tell you, that one parliament will correct the ble determinations. Our inheritance is right errors of another; and tell us, that the Com- of process of the law, as well as in the judge mons have got a great point, that an impeachment of the law. For the king to sequester. bent shall continue, though the parliament be lim from his place they would not address Morogued or dissolved. And if Scroggs's own for it, but leave it to Scroggs's modesty whemodesty make him not withdraw, they have ther he would exercise it, or no; but the made a resolution that he must be continued Lords will not commit him.' What makes me (aved some of the Lords differed at the Confer- stand up is, that we should not now make a

rence about it, as you have heard.) Now it doubt of what was always no doubt. ThereBystems, in this parliament, the Lords go about fore I would not search for precedents, whether

be correct an error they think they did in the it be our right or no, but to strengthen the opithe articles passing, &c. But consider that, if last legs, that we may avoid all cause of diffethis man be litle, and therefore you quit it, re- rence with the Lords ; if it be possible, that Selve never to have impeachment in parliament thing may not receive the least doubt, nor the more. The late duke of Buckingham, upon least delay. It is strange that lord Danby, who apprehension of his charge, dissolved two par- had so mighty friends, and made so mighty a kaments, and consider what a condition we contest, and held the white staff against us, were in whilst lord Danby held the staff. If we should be committed by the Lords,

and that wat in such a condition with so little a man as such an inferior person as Scroggs should be Bergggo, and have so much difficulty, and the so supported,

as it he must still hold his place

I would not search precedents as diately against the king, what condition shall a doubt, but to strengthen our right at a ConfeNe be in, if we have a popish sucsessor, and rence.

[ocr errors]


Sir John Trevor. I had occasion to look upon | House; and prayeth to be discharged of the the precedent of 50 Edw. 3, and it appears premises, and to be hence dismissed, and acupon the rolls, that lord Latimer upon the im- quitted of all the matters, crimes, misdemeanpeachment of the Commons, was committed to ors, and offences, in and by the said Articles of the Marshalsea, and he was bailed by five bi- Impeachment charged upon him, &c. shops, three earls, fifteen barons, and thirteen

« WILL. SCROGGS." Commons. . Here appears a right in the Com

After this, a Petition of sir Wm. Seroggs mons to his bailment, because the thirteen

was read. Commons became his bail by consent of the House. 4 Rich, 2, lord Ferrers was bailed,

“ To the Right Honourable the Lords Spiritual but it is not certain whether the Commons bailed

and Temporal in this present Pacliament him, but the Commons a ways bad a part in assembled. . The humble PETITION of sir consenting to it. But there is a difference when

William Scroggs, knight, Lord Chief Justhe charge is not from the Commons. In king

tice of his Majesty's Court of King's James's time, in the impeachment agninst lord

Bench. Bacon and sir John Bennet, &e, there were never any articles against them from the Com- “ Sheweth ; That your petitioner, the last mons; but complaint was made at a Conference parliament,t was impeached before your lordagainst them, and the Lords formed the arti- ships, by the House of Commons, of several

but when any articles bordered upon trea- Articles, stiled High Treason, and other great son, as these against Scroggs do, the Lords crimes and misdemeanors. To which your pehave always sequestered the person.

titioner hath now, with the first opportunity, Ordered, “ That a Committee be appointed put in his Answer into this honourable House. to inspect the Journals of this House, and of Your petitioner humbly prays, that your lordthe House of Lords, and precedents to justify ships would be pleased to appoint some short and maintain, That the Lords ought to commit day, for this present House of Commons to persons to safe custody, when impeached for reply ; that so a convenient day may be aphigh treason by the Commons in parliament.” pointed for the hearing of the cause, that your

in two days after the parliament was pro- petitioner may no longer lie under the reproach rogued to January 20, and soon after was dis- of the word high treason... And your petisolved by proclamation, and a new parliament tioner, as in duty bound, shall ever pray, &c. was summoned to meet at Oxford on March 21.


Ordered, That the copies of this Answer and

Petition shall be sent to the House of ComThe Answer of sir William Scroggs, knight, mons. was read, as followeth :

But the parliament being soon after pro

rogued, this affair was dropped; bowever, it “The ANSWER of Sir WM. SCROGGS, knt. was thought proper to remove Scroggs from

Chief Justice of his Majesty's Court of being Chief Justice; which was done with all King's-bench, to the Articles of Impeach- the marks of favour and respect, being allowed ment exhibited against him, by the Com- a pension for life. But a parliamentary cenmons of Eugland in the late Parliament as- sure did not hinder the court from preferring sembled.

others, who had been censured a little before; "The said sir William Scroggs, by and as may appear by these Votes of the House of

Commons. ander protestation, that there is no manner of

October 29, 1680. high treason, por any overt act of high treason, particularly alleged or expressed in the said Resolved, “That sir Francis Withens, by Articles of Impeachment, to which the said promoting and presenting to his majesty an William Scroggs can or is bound by law to address, expressing an abhorrence to petition make any Answer unto ; and saving to him his majesty for the calling and sitting of parself (and which he prayeth may be saved to liaments, hath betrayed the undoubted rights of him), both now and at all times hereafter, all the subjects of England." and all manner of benefit and advantage of ex- Ordered, " That sir Francis Withens be ex. ception to the insufficiency of the said Articles pelled this House for this high orime ; and that in point of law, as well for that there is no overt he receive his Sentence at the bar of this House act of treason expressed therein, as for all other the defects therein appearing: for plea thereto,

* Mr. Hatsell (Kutes to 4 Precedents, 117, he saith, That he is in no wise guilty of all or 144, 145, 156, 199,) relies very much upon any the crimes, offences, or misdemeanors, of this case in refutation of Blackstone's position what nature, kind, or quality soever, by the that a commoner cannot be impeached before said Articles of Impeachment charged upon the Lords for any capital offence. As to which, him, in manner and form as in and by the said see the Case of Edward Fitz-harris, A.D. 1681, Articles is supposed ; which he is ready to aver infra. and prove, as this honourable House shall + As to the continuance of parliamentary award: and humbly submitteth himself and impeachments notwithstanding prorogation, seo the justice of his cause to this most honourable the Case of the earl of Danby, infra.

« PreviousContinue »