Die Veneris 12° Julii, 1689. The Lord Prefident reported, from the Sub-committee, the Bill entitled, An Ad for reverfing two Judgments given in the Court of King's-Bench againft Titus Oates, Clerk, wherein they have made feveral Amendments and added a Provifo drawn by the Judges; which Amendments and Provifo were read, and then read one after the other as follows: Third Prefs 29 Line, after the Word (erroneous (read (unprecedented and fo) and after (illegal, and are of ill Example to future Ages) read (that the Practice thereof ought to be prevented for the time to come.) Contents 312 Proxies ڈ و Not Cont. 27? Proxies 40 5532 The Question was put, whether to Thirty-fourth Line, after (King's-Bench) leave out thefe Words (and the Judgments given on the faid Writs of Error.) The Question was put whether to agree to this Amend ment? It was refolved in the Affirmative ? Thirty-feventh Line, after the Word (Judgments) add (in the Court of King's-Bench.) The Question was put, whether to agree to this Amendment? It was refolved in the Affirmative. Thirty-feventh Line, after the Word (defaced) leave out (any Thing to the contrary thereof in any wife notwithstanding) and read (and it is hereby further enacted by the Authority aforefaid, that it fhall not be lawful at any Time hereafter to inflict the like exceffive Punishments again on any Perfon whatsoever.) The Queftion was put, whether to agree to this Amendment? It was refolved in the Affirmative. Then the following Provifo was read. Provided always, and be it hereby enacted and declared by the Authority aforefaid, that until the said Matters for which the faid Titus Oates was convicted as aforefaid for Perjury, be heard and determined in Par liament, liament, that the faid Titus Oates fhall not be received in any Court, Matter or Cause whatsoever, to be a Witnefs or give any Evidence; any thing in this Act in any wife contained to the contrary notwithstanding. The Question was put, whether to agree to this Provifo. It was refolved in the Affirmative. Leave was given to any Lords to enter their Diffents, and thefe Lords following do enter their Diffents to the feveral forgoing Queftions for thefe Reasons : To the Firft. Because we are of Opinion, that the Judgments given in the Court of King's-Bench againft Titus Oates are altogether illegal and cruel, and not capable of being qualified in Juftice or Law, by the Words (unprecedented and fo cruel and illegal, that the Practice thereof ought to be prevented for the time to come) but ought plainly to be declared pofitively againft Law, Juftice, and the undoubted Right of the Subject. To the Second. Because we are of Opinion, that no Merit or Demerit of any Perfon appealing to the Houfe of Lords, or bringing thither a Writ of Error, ought to have any Weight with the Lords in giving Judgment; and therefore no Reason why the faid Judgments ought not to be reversed by the Legislative Power, fince the fupreme Court of Judicature (the Lords in Parliament) is the utmoft Refort any Perfon can have for Jufticc, except the Legislative Power. To the Third. Because we are of Opinion, that barely faying (it shall not be lawful at any Time hereafter to inflict the like exceffive Punishments again) is not strong enough to deter a corrupt or partial Judge from practifing the fame, because it's without a Penalty upon fuch Judge; and barely the Tranfgreffion of Law, not made penal, can amount to no more for Punishment than a moderate Fine; and there is no doubt but all Judges will be hereafter cautious of fetting great Fines, fince of late the Subject, in that Point, has been greviously oppreffed, as does appear by several exorbitant Fines annulled in this prefent Parliament. We also enter our Diffent to the Provifo for these Reasons: t, Because no Man ought, by the Laws of England, to be punished unheard; though the Parliament has Power in all Things poffible in its Legislative Capaci ty, yet by all Rules of Law and Juftice, no Man ought to be oppreffed merely arbitrarily; and in this Cafe it feems to us to be fo, for the other Part of the Bill reverfes two illegal and unjuft Judgments against Titas Oates in the King's-Bench, affirmed upon Writs of Error brought to reverse the fame; and this Provifo, without hearing him in his Defence, enacts Titus Oates to be a Man incapable of being a Witnefs, which, we conceive, is more Infamy than being a Slave. 2dly, The Provifo, as it is penn'd, that it may have a Shew of Justice, feems to give him the faid Titus Oates a Liberty to clear himself, but in reality it is impoffible for him fo to do; for if it be meant, that the Matter for which the faid Titus Oates was convicted of Perjury muft be heard and determined in Parliament in a Legiflative Way, there is no need of this Provifo; but if it be meant that the faid Matters for which he was convicted of Perjury must be heard and determined by the House of Lords in Parliament, then (befides that it may seem to caft a Reflection upon the Proceeding of the House of Lords in affirming the Judgments given in the King'sBench against him, without hearing him) there will be two infuperable Difficulties; one is, that by the Rules and Practice of the House of Lords, as a Court of Judicature, the Lords cannot call for the Matters and Evidence concerning the two Verdicts, nor can Titus Oates bring that before the Lords in Judicature; the other is in Cafe the Lords in Judicature fhall call for the same, or Titus Oates fhould bring them before the Lords in Judicature, and the Lords proceed thereon to give Judgment, it is by us conceived, that it would be an original Caufe, and therefore not to be proceeded upon. 3dly, If Titus Oates cannot acquit himself of Perjury, as this Provifo feems to give him Liberty to do in the Houfe of Lords, he can never bring it into any inferior Court. 4thly, Laft of all, we conceive, that the refufing to condemn the Verdicts brought against Titus Oates in the King's-Bench does condemn, at the fame time, the Credit of the Popish Plot, which was affirmed by fo many Witneffes Witneffes in feveral Parliaments, and caufed fo many Addreffes to the King concerning it, fince the first Difcovery of it was upon this very Evidence, for which he was convicted (though by a pack'd corrupt Jury) by the higheft Oppreffion, and by a former Jury in the fame Cafe acquitted of Perjury. Charles de Berkeley, Montague, Bedford, Vaughan, Suffex, Cornwallis, Maclesfield, Paget, Against the Amendment. Newport, Stamford, Suffolke. Line the 34th after (the King's-Bench) leave out (and the Judgments on the faid Writs of Error) 37th Line, after the Word (Judgment) add (in the Court of King's-Bench.) Because it is altogether unintelligible to us, how we can reverse the Judgments in the King's-Bench as erroneous and illegal, and yet fo induftriously pafs by the Judgments given in this House, that affirm thofe illegal and erroneous Judgments, by rejecting that Claufe in the Bill brought up from the House of Commons that reverses that Judgment alfo. Against the Provifo, Because the Title and Intention of the Bill is to reverse the Judgments against Titus Oates, but this Provifo makes it firmer and heavier than ever, as much as an A& of Parliament is of more Weight than the Sentence of any judicial Court, and the Infamy of Perjury a greater Punishment than any Thing barely corporal. Because, we think, we cannot juftify to the World, or our own Confciences, fuch a Compliance for the Judgments of profligate Wretches, fet up for Judges in Westminster-Hall, as that in the fame Act, wherein we are forced (upon undeniable Reasons, manifeft to the whole World) to annul their Judgments as illegal and erroneous, we fhould yet retain and fix upon him, who hath already suffered by it, undue and unheard-of Punishments, the fevereft Part of a confeffed illegal Sentence. Because we cannot confent that this Houfe, which hath been always looked on as the Seat of Justice and Honour, fhould come under the Obloquy of a Place, where Men are condemned first, and tried afterwards, which we cannot fee how to avoid, if according to this Provifo, we lay Dr. Oates prefently under the Condemnation of Perjury, until the Matters of that Perjury, fhall be heard and determined hereafter. Because, fuppofing him guilty, we being, by no Forms of Justice, obliged to condemn him, we think it Prudence not to give an Occafion to be thought apprehenfive of his Testimony, by taking this new and unheardof Way of depriving him of it. The Cafe of any Man living, the Condemnation of Perjury ought not to be laid on Titus Oates, before a fair and full Hearing, for that it was fo much the Labour of the Enemies of our Religion and Liberties (who in this Matter knew well what they did) to advance their Defigns by invalidating his Teftimony, the Credit of which was in vain attempted by folemn Trial, 'till the Irregularities of the laft Reign, and the Way to corrupt Judges and Juries to that Purpofe; we therefore fear, we may be accused of out-doing the whipping Precedents of Westminster-Hall, in confenting to condemn without Hearing or Trial. Because we cannot confent, that this Hardship be put on his Majefty, either to reject a Bill offered to him by both Houses, which hitherto he hath not done, or else, in a most folemn Way to lay a Man under the Condemnation of the most detestable Crime, without any Knowledge of it; an Injuftice No-body can advife him to, to advance his own Intereft, much lefs for the promoting that of his Enemies, who always did and do think themfelves concerned to difcredit the Opinion of the Popish Plot, to which this feems to have a great Tendency. Because we cannot confent to fix on any one the Condemnation of Perjury, by Act of Parliament, upon bare Surmife before a Hearing, were it for no other Reason but that thofe who have Proofs may, by an orderly Course of Law, convict him; to condemn Oates of Perjury, until it fhall be heard and determined in Parliament, is to condemn him for ever and unheard; for how after this can it come judicially before us, there lies no Indictment in the House of Lords, nor Writ of Error, when the Record is vacated; fo that it is utterly impoffible for Titus Oates to receive any Benefit by a Remedy feemingly provided for him by Act of Parliament. Montague, |