After two months time, the duchess thought | with submission, after the duchess had been so fit to be a little more private, and it was given accused in the House of Lords of such a famiout she was gone to France: but in truth she liarity, any evidence of a conversation between removed to Vauxhall, to a house that was taken them afterwards, is as much as a thousand by sir John Germaine's brother, and went by witnesses; for no woman that valued her reputhe name of my lady Beckman; and she lived tation, having been accused as she was, would there two years successively; and sir John have had any conversation with sir John GerGermaine came there frequently, once or twice maine afterwards. But we do not want cirin a week, and lay there at nights during that cumstances to support the evidence of faet; we time. We have two witnesses that did attend have as plain evidence in this case, as can be the duchess, as well as at the Cockpit; one of expected' in a case of this nature. We will them is Ellena Vaness, who was hired by sir spend no more of your time, but beg leave to John Germaine's sister, and lived with the call our witnesses. duchess at the Cockpit two months. We have a second witness, one Hosier, who was with sir John Germaine at the Cockpit fifteen days before the duchess went to Vauxhall; and afterwards he went to Vauxhall when she removed there, and staid with her all the two years.

These are both foreigners, and Dutch peo ple, and it was reasonable enough to expect foreign witnesses, when an English duchess had a foreign gallant: they are such as he thought fit to entrust about her.

After she had lived two years at Vauxhall (this brings her to the year 1691) she removed home again to her house at Mill-bank, and there sir John and she were frequently together, and have been seen a-bed together.

This brings us to the time when the duke having an account that she had this conversation with sir John Germaine, brought a bill into the House of Peers for a divorce; but it happened that the duchess and sir John Germaine, to avoid the condemnation, kept the witnesses out of the way, and afterwards caused them to be sent into Holland.

The woman staid abroad till about three months ago, but the man returned before into sir John Germaine's service; and he will give you an account of what observations he made there, for the familiarity continued between them then. He was admitted into the room where they used to be, and he will give you an account how he hath seen them frequently together; and he brings it down to within the year 1695.

We have another witness, one William Bayly, who likewise was a servant to sir John Germaine, and came into his place when Hosier went beyond sea. He is an unwilling witness, because he hath been preferred by sir John Germaine; but when he was upon his oath in the other House, he did give an account, That while he continued in sir John Germaine's service, notwithstanding this public reproach in 1695 and 1696, she frequently came to sir John Germaine's house with one Keemer, whom she had great confidence in, and one Susannah Barrington, I think, yet in the duchess's service.

And this Mr. Bayly will give you an account, that his master was often from home; and when he was so, he used to carry his linen to this Keemer, who was the duchess's servant, or this Keemer would come to him for it and this will bring it down to 1696. There are several witnesses to confirm this; but we think,

Mr. Atwood. Sir Rowland Gwynne, pleas to favour me with a few words on on the same side; I shall not mis-spend the time of the committee in repeating any thing said by Mr. Northey; I shall only observe, that the witnesses, Hosier and Vaness, say, That Susannah Barrington was privy to this adulterous conversation: and this Susannah Barrington has withdrawn herself since the Bill was depending in the House of Lords.

It is further proved, that Mr. Daniel Germaine and Mr. Briane's wife were in England lately, and that these were privy to the same conversation.

Then the witnesses were called in one by one, and interpreters allowed.

The witnesses that were examined before the Committee of the Commons were Ellena Vaness, Nicholas Hosier, William Bayly, and Ann Read.

But all, except Ann Read, were examined in the House of Lords, and their evidence there being at large set forth, the reader is referred to the same. The evidence of Ann Read is as

follows:

Ann Read being asked, whether she had ever seen the duchess go to sir John Germaine's house, and when? says, That about April 1692, (which was soon after the duke's bill had been rejected in the House of Lords) she saw the duchess of Norfolk go in a chair to sir John's house; that the door was immediately opened upon her chair's being set down, and she went into the house with ber mask off.

She being asked, whether she had seen sir John come to the duchess's house, and when? says, She, within a twelve-month last past, or thereabouts, followed him to the duchess's house, about three of the clock in the afternoon, and that she did not see him come out.

After the witnesses were examined on the part of the duke of Norfolk for the bill, sir Thomas Powys, of counsel with the duchess of Norfolk, being called upon to make defence, spake to this effect:

Sir Thomas Powys. I am at a loss, Sir, and under some kind of a surprize, because, as far as I apprehend, you call upon us to make our defence. I hope in a case of such moment as this is (and it may be there cannot be greater), and since you are pleased to take this case out of the usual way of trials, and to try it in the first instance, you will be pleased, that we should be fairly and regularly heard. And since it was

not allowed us, upon our being heard against
the bill, that we should have a time to make our
defence; now we have heard what the witnesses
swear, we shall desire but a short time, no more
than what is absolutely necessary, to make
our defence.
This hath spent us six hours al-
ready; and I am sure the witnesses that have
been examined have given such variety of an-
swers, that it doth afford a great deal to be said
to it. We have likewise a good many witnesses
to be examined, but I am far from proposing
any thing to delay it. We had a week's time
allowed us in the House of Lords, but that is no
rule for you, and we do not expect it here:
But, even while we are at this bar, a person
from a very worthy member gives us intelli-
gence, upon sight of this cook-maid, of a mat-
ter that will defame her; and he will be ready
to make it out, that she was turned away for
being a common thief in Holland; and there-
fore, Sir, you see how time is necessary in
point of accidents that do happen; and I can.
not make our defence now.

Thereupon the counsel withdrew; and the committee having considered of the desire of the counsel for the duchess to have time allowed them to make their defence, were of opinion, that the counsel should proceed then to make their defence; and candles were ordered to be brought in.

And the counsel being called in again, sir Rowland Gwynne being in the chair of the committee, acquainted them with the determination of the committee.

Then sir Thomas Powys observed upon the evidence that had been given, and insisted, that the evidence given before the Committee of Commons did differ from the evidence given by them upon oath in the House of Lords; and offered to produce the examination of the said witnesses upon oath in the House of Lords. And an objection being made, that such examination ought not to be read in that case, as evidence before this committee; the counsel withdrew, and the committee considered of the said objection, and were of opinion, that the said depositions should not be read.

And the counsel being called in again, were acquainted with it, and that if they had any witnesses, viva voce, to encounter their evidence, they might produce them.

Sir Thomas Powys Sir, by this resolution my client is deprived of that defence I thought 1 could have made for her; but I submit to the pleasure of the Committee.

Mr. Atwood The examinations in the House of Lords were so lately, that it is an easy thing for the solicitors, who were by, to give an account of a contrariety in the evidence, if there

were any.

A Member. Whether you have any other evidence to offer, but as to this point?

Sir Tho. Powys. All our evidence would tend to contradict these witnesses; and if the reading of those depositions will not be allowed, we must abide your pleasure, and submit it to you.

Mr. Dodd. We must submit it to you; our witnesses were in concurrence with that sort of evidence. :

Sir Rowland Gwynne. There are several persons named, who are persons of credit and good reputation, Mr. Briane and his lady, Mr. Daniel Germaine and his sister; these would be witnesses of credit, against those that are, you say, not of credit.

Counsel. We have summoned them and Mrs. Pitts, and done all that we could on our side to get them here; and I hope you will not prejudge our case, to say they are in our interest; that is to determine the question. We have likewise summoned Mrs. Pitts and ber two maids; and whether they will appear, or not, that we cannot tell; but this we are ready to make out to you.

Mr. Atwood. Susannah Barrington, the duchess's woman, privy to the whole conversation, is proved to have been with her since the bill was brought into the House of Lords.

A Member. Whether he has one living witness to produce, that he can make good his defence by?

Sir Tho. Powys, Sir, if you expect an answer by me, I am assured that we have witnesses; but if I cannot bring those people against themselves, if I cannot bring Nichola against Nichola, I despair of doing any good, if I bring a thousand other witnesses against him: and therefore I pray this favour of you, that since it is your pleasure that this evidence be not allowed, you will not make a bad construction of it, that I do not proceed to make a defence to this bill; for I cannot truly do it, unless I had some other instructions from my client, but shall defeat her expectation to proceed upon the other part of the case, since what we built upon with good authority, as we thought, is not thought fit, to be admitted.

Sir R. Gwynne. Sir, you are at liberty to go on, if you have any thing more to say, than that you cannot proceed without further directions from your client.

A Member. Whether they have any thing to offer in the defence of the duchess, upon the crime she is charged with; for, I believe, it is a new thing for the counsel, when their client is charged with a crime, to say, they cannot defend her unless they go and ask, whether they shall defend her, or no? If they have any thing to say in her defence, we shall be ready to hear it.

Sir R. Gwynne. Sir Thomas Powys, have you any thing more to say?

Sir Tho. Powys, I cannot but repeat what I have already said, that I would be glad to make the best defence this case may bear; and I may say, I have defended it twice with very good success, and this is a third time; and I would make the best defence this case would bear now. And I must own to you, that the course of our evidence, we did propose to ourselves, is so far broke, by the first determination you were pleased to make, that I cannot venture upon the rest of the defence, if so be your pleasure be not to admit of this matter.

Sir R. Gwynne. You may by any solicitors or agents, that were present when these witnesses were examined in the House of Lords, prove what they swore there.

evidence of that matter, but in a little time they will be able to give an account of what was then sworn.

Mr. Atwood. It seems they want to be taught their lesson.

Mr. Dodd. We apprehend you have already determined the matter, and we cannot now meddle with it; but if I apprehend it aright And then the Counsel withdrew, and the from the chair, it is your opinion, that we may Committee proceeded upon the Bill clause by produce the solicitors and agents, to give an clause, and went through it, and ordered the account of what was sworn in the House of same to be reported; which was done accordLords. Now we are under this disability byingly; upon which the Bill passed.* your determination, that we, relying upon what you have determined against us, are not

"The duchess afterwards married sir prepared with our solicitors, or others, to give | John Germaine, bart." Former Edition.

410. Proceedings against Sir WILLIAM WILLIAMS, bart, for the Publication of Dangerfield's Narrative: 36 CHARLES II.*7 WILLIAM III. A. D. 1684-1695.

An INFORMATION against Sir WILLIAM WIL-
LIAMS, for Printing and Publishing a sedi-
tious Libel, reflecting upon the Duke of
York, the King's Brother.

REX v. WILLIAMS. Trin. 36 Car. 2.

Midd. ss. QUOD Willielmus Williams nuper de Westin' in Com' Midd'Ar' existens homo pernitiosus et seditiosus ac machinans et false malitiose et seditiose intendens pacem et comm'

6

6

tranquillitat' bujus Regn' Angl' inquietare molestare et perturbare ac seditionem discord' et malevolentiam int' dict' Dom' Regem nunc et subdit' suos hujus Regn' Angl' facere movere excitare et procurare necnon serennissim' et excellentissim' principem Jacobum ducem Ebor' et Alban' unicum fratrem dict' Dom' Regis in maximum odiu' contempt' et vilipendin' cum dicto Dom' Rege et ligeis et fidel' subdit' ipsius Dom' Regis inducere ac inferre

On the second of February, sir George Treby reported, That the committee had agreed upon several Heads, which he read in his place and delivered in: after some amendments made to some of them they were agreed to by the House. The twenty-second head is " Informations in the court of King's-bench to be taken away."

* Mr. Wynn, in his learned " Argument upon the Jurisdiction of the House of Commons," p. 31, notices, that the "Bill of Rights, after enumerating among the invasions of the constitution, the prosecutions in the court of King's-bench, for matters and causes cognizable only in parliament,' declares, that the freedom of speech and debates, or proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament.'' And he says, "That this declaration applies specifically to the cases of the prosecutions of the Speaker and Sergeant [Topham] will be evident, when it is observed, that no other cases had occurred in the reigns of Charles 2, or James 2, where it had been attempted to question, in any other court or place," utterly and directly contrary to the known the freedom of proceedings in parliament."

It is observable (though I recollect not to have met with the observation) that the House of Commons appears to have been desirous that the Bill of Rights should abolish all informations in the court of King's-bench.

On January 29, 1688-9, that House appointed a committee (of which Mr. Pollexfen, sir George Treby, sir Edward Seymour, Mr. Finch, sir William Williams, sir Robert Sawyer, Mr. Sommers, Mr. Eyres, and other eminent persons were members) " to bring in ge neral Heads of such things as are absolutely necessary to be considered for the better securing our Religion, Laws, and Liberties,”.

On the fourth of February, it was, among other things, referred to the same committee "to distinguish such of the general heads as are introductory of new laws from those which arc declaratory of ancient rights." In the afternoon of the 7th of February, sir George Treby accordingly made a report, in which, among the practices which are declared to be

laws and statutes and freedom of this realm," be brought and prosecuted in the court of is enumerated the "causing Informations to King's-bench, for matters and causes cognizable only in parliament:" and among the new laws by which it was proposed and advised to provide for making a more firm and perfect settlement of their religion, laws, and liberties, and for remedy of several defects and inconveniences, one was "for taking away Informa tions in the court of King's-bench;" and to this report the House agreed.

Ultimately the suppression of Informations in the King's-bench was not specifically introduced into the Bill of Rights, but it seems probable that it was one of the articles concern

et ad nequissimas nefandissimas et diabolicas | gend' idem W. W. nono die Novemb. Anno intencon' machinacon' et practicacon' suas Regn' Dom' Caroli Secundi nunc Regis Ang!' pred' perimplend' perficiend' ét ad effect' redi- &c. 34, apud Paroch' Sancti Martini in Campis ing which the two Houses disagreed, and paid, and security given to appear the next ses which were discussed in the conferences be- sions; which per curium is illegal, and such tween them, respecting that most important order cannot be executed afterwards. But by statute during its progress. The House of Hyde chief justice, the chancellor of course Lords, it seems, indeed objected altogether to may cause their orders to be executed. But by the clause reciting the prosecution of Informa- Twisden, he must have a special order from the tions in the King's-bench, for matters cog- House to execute their orders. But by Keeling nizable only in parliament, &c.: they alledged and Windham, the House of Lords is not like that they did not fully apprehend what was other courts, but is wholly determined by promeant by it, nor what instances there had been rogation, and ceaseth till the next session. And of it, which therefore they desired might be so was Streater's Case, [See it as above referred explained if the Commons should think fit to to] on Habeas Corpus 1654: he was delivered, insist farther on it. The Commons answered, the parliament being determined, against which that they thought it a very high grievance and a he spake those words, for which he was com matter of the greatest consequence to the mitted. Adjornatur. Lords, and to themselves, that matters and causes cognizable only in parliament, should be drawn into examination in inferior courts. See Commons Journals, February 8, 11, 12. On the last of which days sir William Williams was added to the managers of the conference, and he reported the proceedings upon the free conference which was had on that day, although Mr. Sommers had reported the proceedings of the ordinary conference which had taken place on the same day. It appears as if the two Houses had adjusted by a compromise their disagreements upon the subject.

According to Mr. Barrington "the attorney general's power of filing Informations ex officio, seems to be borrowed from the civil law, where there is always a parti publique, or public prosecutor." Obs. on West. primer.

"The return of the Habeas Corpus was, that he was committed March 27 to the Fleet, till fees paid, being taken into custody by Lee, Serjeant at Arms of the House of Lords, (not saying when but only) by their order dated 11 Feb. Coleman excepted for the incertainty; it doth not appear what the fees are, nor who should be judge of them.

Also the commitment is not only for fees, but till security given to appear the next sessions. Adjornatur.

ended: and were the prisoner committed for a "The parliament by prorogation is quasi contempt, the court might in convenient time have bailed him. But here the want of the day of the taking is material, being in the knowledge of the Serjeant at Arms; therefore it shall be presumed the taking was after the rising of the parliament, which court consists of In a recent Case (Rex v. Mary Jones and King, Lords, and Commons; at which time another, Mich. Term, 52 G. 3,) that most up- all the privileges of each particular House right and learned magistrate, Mr. Justice Bay- cease, and each prorogation is a new parlialey, seemed to be of opinion that Mr. Attor-ment; and the bill twice read before must now ney's power of filing Informations ex officio was sometimes exercised vexatiously.

The question, Whether commitments by a house of parliament may be examined by a court of law? has been frequently agitated. See the Cases of captain Streater, vol. 5, p. 365, of Richard Thompson, vol. 8, p. 1, of Benjamin Flower, A. D. 1799, the recent Case of sir Francis Burdett, and the other cases and authorities, particularly the learned investigations of Mr. Hargrave, therein referred to. In vol. 5 of this Collection, p. 948, upon a motion for a Habeas Corpus, it was held by Newdigate, a Commonwealth judge of B. R. that a prisoner committed by the parliament could not be discharged by an inferior court. The following Report of Pritchard's Case, 17 Car. 2. B. R. I have extracted from 1 Keble 871, 884, 887. The same case is shortly and ill reported in sir Thomas Raymond 120, 1 Lev. 125, Siderf. 265.

"The House of Lords ordered him to be committed, and delivered the order to the Serjeant at Arms to take him, and after the House prorogued he was taken, and detained till fees

be begun anew; and therefore we cannot bail him till the next parliament, but the party ought to be discharged. Parliament, Br. 86, and 4 Inst. 1 H. 7. 20, in Flowerdieu's Case. By Windham, recognizance taken by parlia ment is fruitless by their session, but judgment given there is delegated to the chancellor, being as a thing finished; but this is but process. And by Twisden, its all one whether he were taken sitting the parliament, or after, for that is but a contempt to them, which this court may discharge: and in Chenye's Case, in this very parliament, I heard it declared, that whatever is done, must at the next prorogation be begun anew, except in error, where scire facias may be retornable at the next sessions, being grounded on judicial record. But this is but matter of contempt, which is discharged by the session of parliament. Hyde chief justice, 22 Ed. 3. 23, determines this Case: and omnes in omnibus concurred clearly that he ought to be discharged."

See the Trial of Robert Frances, gent. for the murder of Thomas Dangerfield, and the Note thereto, vol. 11, p. 503, of this Collection.