Gentlemen choose either to be Papists or burnt or hang'd I have no disrespect to the Duke if this Proposal could keep out Popery But if I am to leap over a River I had rather have no Staff than a broken one This can be no Security If you leave it in the power of the Councel to make War and Peace and dispose of Money Pray then where is the Government Either they will be faithful and keep the Law of Regency or the King must be King but in the name and they the Soul of the Government I have heard the Expedients with patience and have not been over-hasty to put the Question But I see no Remedy to save Religion unless excluding the Duke Therefore pray put the Question for the Bill c. The Question was stated R. H. You have been moved to adde to the Duke's Exclusion all other Popish Successours This is a Bill on purpose to Exclude the Duke only You may Exclude all other Papists from Succeding c. in another Bill by it self But I observe that the way to loose a Bill is to flog it H C. I shall only observe that by the last Bill of Exclusion if the Duke should turn Protestant He will be Excluded and if the Princess of Orange turn Papist she is not Excluded Vid. the Vote for the Bill in Print In the AFTERNOON An Account given of the Lords throwing out the IMPEACHMENT of Fitzharris Sir T. L. I See by the Lords refusing this Impeachment no farther use of a Parliament They will be a Court or not a Court to serve a present purpose Sir W. J. In a matter so plain and which concerns the very being of Parliaments I am unwilling to make unnecessary doubts If an Action be brought in the Lower Courts it does not hinder the Action being brought in Westminster-hall if no Judgment upon it and it holds the like in this case Indictments were brought against the Lords in the Tower at Common Law and yet was no Impediment to their Impeachment in the Lords House but here is no Indictment or prosecution brought against Fitzharris We have an Instance fresh in Memory The Lord cheif-Cheif-Justice Scroggs a Commoner and not Indicted at Common-Law yet the Lords without any scruple accepted his Impeachment so that we need not spend our time to search Presidents Perhaps the Lords Journals were not made up but our Members have taken Notes out of the Minut-Book by them we find the Lords have determined a great point The Lords Spiritual as well as the Lords Temporal have Voted it which we own not in this Judicature nor I hope never shall and we are denied Justice by the Lords Spiritual who have no Right to Vote This is doing a double act of Injustice And since the Lords have taken upon them to throw out the Impeachment of Fitzharris let us Vote That the Commons have a Right to Impeach in Capital Cases and that the Lords have denied us Justice in refusing the Impeachment And after you have asserted your Priviledges then draw up Reasons for maintaining them And if the Dissolution of the Parliament follows it 's the fault of those Men who will not hear our Reasons and in a Parliamentary way at a Conference shew how unwarrantable the Lords Actions have been in their way of proceeding Sir F. W. If this Impeachment of Fitzharris was of so ordinary a nature as a Monopoly c. I should not press upon this matter But this is not an ordinary Accusation but that which relates to our Religion and Property and how the Bishops come to stifle this let God and the world judge I would know if a man be Impeached by the Commons and no Indictment against him only the Atturney-General told the Lords that the King gave Directions he should be prosecuted and no Record against him whether this is a ground to deny our Impeachment If the Lords will Vote that the Commons shall not Impeach him they may as well Vote they shall not be Prosecutors But yet we will be so This is a New Plot against the Protestants of which Fitzharris is accused and we must not Impeach him in this the Lords fairly say We must not hear it If this be the Case I desire you'ill come to some Vote You are willing to discover the Plot if you could If the Attourny-General had prepared a Prosecution in an Inferior Court and they had proceeded to Judgment then it is pleaded in Bar to the Judgment of a Superior Court If our Time be short as I believe it is pray do not delay to come to some Resolution if the House be satisfied in it pray make a Vote to assert your Right A little while ago when the Duke was presented for a Papist the Grand Jury you know was dismiss'd by chief-Chief-Justice c. This seems as if the Lords were bound in Honour to justifie the Judges Proceedings by their own 'T is a reflection of weakness in a man who doubts in a plain matter and if no man doubts our Right pray Vote it so Sir R. H. I am glad we are off from the great thing yesterday I cannot believe but that the Lords have Judgment enough to have cause for what they do and in this cause of Fitzharris Impeachment In this matter Presidents you need not search This of Fitzharris seemeth to me to be a more dangerous breath than usual a breath fit to be stifled there is something in this more than ordinary If there be so sacred a respect to the comman Tryalls of England in Inferiour Courts 't is strange that the House of Commons should be below a common Jury If in the cases of Skinner and the fact done beyond the Sea the Lords contended with the Commons about Judging it though it was an original cause this was no great value of the Law of England But it seems they value Fitzharris to keep him from us When I have heard in all the Speeches to day that the Duke does not go single and have heard so excellent discourses to day of that matter I am loath to mingle my weakness But such Councel as this the King hereafter will have no cause to thank them for involving him in the fatality of those Councels as if they would make the Libel of Fitzharris the Copy of their Councels Dangerfield was reputed a most infamous person yet if he would speak what he knew nothing of mercy was to big for him But Fitzharris is a man of no infamy and yet they hurry him away to the Tower when he began to confess in Newgat Are you so lost that you have no mercy left for the Protestant Religion This is strange if the terror of his condition make him confess the whole Plot he be taken out of our hands We hear of other things as that the French Ambassador had a hand in this Plot which a Jury will not inquire into their business is only whether Fitzharris be guilty or not guilty
of the indictment I must confess that with the carriage of this I have enlarged my suspition for I cannot but suspect unusual ways The worst of Mankind with all his Villanies about him has been pardoned Is there in this any provocation given by us but something depends upon this Man as well as upon the Bill to day When you was told by Sec J. He would not carry the Impeachment c. and the House would make no breach by taking any severe course against him but past it over with temper sure we must not lay down all prosecution of the Plot and say that the Protestant Religion shall have no mercy Fitzharris may merit mercy by confession and if his breath be stopt by the Lords I am sorry that people will say if it were not for the Lords Fitzharris might have discovered all the Conspiracy and the Protestant Religion might have been saved I Move therefore that in your Vote you will not only say That denying this Impeachment c. tends to the subverting the Constitution of Parliament but of the Protestant Religion also I hope we shall proceed in this with the same calmnesse of mind that every man does wish who would not lose his Religion Serg. M. A Plot we all know has been on foot in England and I am sure in Ireland too and what Arts and Crafts have been used to hide the Plot It began with Murder and Perjury and false Subornation this of Fitzharis is a second part of that We have sent up an Impeachment against Fizharris and the Lords deny to receive it In effect they make us no Parliament if we are the prosecutors and they will not heare our Accusation t is strange when their own Lives as well as ours are concerned in the Plot. The same day we Impeach Fitzharris the Lords Vote we shall not prosecute him Now when all is at stake we must not prosecute if this be so Holland and Flanders must submit to the French and they run over all This is a strange Breach of priviledge and tends to the Danger of the King's Person and Destruction of the Protestant Religion Sir T. P. This of Fitzharris is a considerable Confirmation of the Former Plot I call it the Old Plot but 't is still new upon us This is a confirmation of the designe to Murder the King and the Duke consenting to destroy his own Brother and our King I have often heard it wisper'd that this Plot was Madames Designe at Dover 'T is plain that Justice Godfrey was Murdered and that the Army at Black heath was to destroy the Protestants in Holland and to awe the City of London When Fitzharris was in an Inclination to discover what he knew and two or three Honourable Members went to Examine him this man was fetch'd the next day to Whitehal and sent to the Tower and so we were deprived of all farther hopes of discovery We have received the Information he gave and now that the man may be in no capacity to discover farther they stop his mouth I move therefore that you will declare That if any Judge Justice or Jury proceed upon him and be found Guilty that you will declare them Guilty of his murder and betrayers of the rights of the Commons of England Vid. the Printed Vote Sir W. J. Now the House has done as much as is fit for the Lords but we do not know how Inferiour Courts will proceed therefore I 'll propose a Vote That if any Inferiour Court shall proceed c. which past Vid. the Print I would not give occasion to people to say we do things in an extraordinary manner 'T is late and pray let 's Adjourn Munday March 28. 1681. The Bill for Excluding the Duke c. read Sec. J. NO Bill was ever offred in Parliament of the like nature so much against the Justice of the Nation it condemns a Man never heard and then 't is a Law made ex post facto Very extraordinary against the Fundamental Justice of the Nation and not only that but against the wisdom of the Nation and will introduce a change of the Government If the Duke will try to cut this Law with his Sword if he overcome he will have the same power to set aside all Laws both for Religion and Property the power will be in the hands of the Conqueror and certainly he will change the Government 'T is against the Religion of the Nation which teaches to pay Obedience to our Governours whether good or bad never so faulty or criminal In primitive Christianity Obedience was paid to Heathen Princes in licitis honestis and we are not to do evil that good may come of it nor on the prospect of any good I shall say one word more 't is against the Oaths of the Nation of Allegiance and Supremacy The Duke is the Kings lawful Heir if he have no Son and in the Eye of the Law I am sworn to him and every Oath is in the sense of the Law-giver If this Disinherison pass now into a new Law who dispenses me from that Oath to the King possibly I am too tedious and not willingly heard If the Bill be against the Religion of the Nation being obliged by Oaths against the Government and the wisdom of the Nation I hope you will throw it out T. B. Sec. J. has moved to throw out the Bill and desired to be heard patiently I find no body second him pray let him go on and second himself Ordered a second Reading Sir W. J. Because there has been much discourse in the Town of the Votes that past on Saturday upon the Lords Spiritual and Temporal rejecting the Impeachment c. though I believe what is done will be made good yet I would for the present give the Nation all the satisfaction we can that we are in the right Amongst our misfortunes in being called to this place we are far remote from Records and Books but yet I think it may be easy to prepare our selves to maintain what we have done According to the little light I have I find it the undoubted right of the Commons not only to bring Impeachments against Lords but against Commons too Magna Charta does not only say Per judicium parium c. but per Legem Terrae c. Tryal by Parliament is Lex Terrae I have heard of a Record 4. E. 3. where when the E. of March The Black Rod came to command their Attendance in the House of Lords whither they immediately went and the Lord Chancellour by Command of the King Dissolved the Parliament FINIS
to say at the Conference and 't will be Munday at the soonest before you can do it I shall offer another thing at the Conference I would offer the Lords the consequence of this way of proceeding and to desire the Lords to put the thing into a way of Examination that the Complices may be fit for punishment And at the same Conference would desire a Committee of both Houses to consider where the Miscarraige lay Danby's Case Reported c. The Account of Fitzharris and the Libel read c. Treby's Examination c. Sir J. H I humbly move Fitzharris's Examination may be printed for the world to see the Devilish Conspiracies of the Papists Sir W. J. I like the motion for Printing nothing is in this paper but what 's fit to be printed It fully makes out those Informations you have had before And because we all know that since my Lord Staffords Tryal people have been prevailed upon to believe the Plot not true and this confirms Oates and Bedloes Informations I would have them Printed but not the Libellous paper which reflects upon the King Sec J. I will not trouble you but with that part I had in this affair The Paper was read over to the King by Sir William Waller Therefore according to the Kings Command I issued out a Warrant for apprehending Fitzharris and Sir W. Waller was to take care of the execution of the Warrant Sir E. W. This is a matter of great Importance and we ought to acquit our selves in it like wise men We that come out of the Countrey hear that that Treasonable Paper which has been read by Sir W. Waller was to have been sent to many Gentlemen they to have been seized thereupon as Traytors in the Conspiracy it may be this was that new Plot. All we have is at the stake therefore how long or short our sitting is like to be here the Trooper Harrison said there would be other Guards at Oxford let not our courage lessen This being our case let us go to the bottom of this business of Fitzharris Therefore I Move he may be sent for and Impeached We know by experience when once an Accusation is in Parliament on Record and in the greatest Court of the Kingdom made known Malefactors have not been cleared and you have had Justice therefore I would have care taken that this Man be Impeached of High-Treason and it may be he will relent and tell you all Sir R. C. When Fitzharris Examination was taken at Newgate he asked whether he had said enough to save his life I told him I thought he had not dealt ingeniously unless he would tell what Councel he had for Drawing and Modelling the paper and I bid him be ingenuous in the whole matter and I would come and take his farther Examination But the next day after he promised this he was removed out of our reach into the Tower Impeachment Ordered vide in the Print 'T was moved that Secretary Jen. should carry up the Impeachment to the Lords Sec J. The sending me upon this Message c reflects upon the King my Master and do what you will with me I will not go Many called to the Bar to the Bar. See T. L. I would not have said one word but that the very being of Parliament is in the case 'T is to no end to sit here any longer if this be suffered There can be no ground reason or thought to bring the King in question or reflection upon him in this Impeachment or on the Secretary But for him to say do what you will with me I will not go with the Impeachment is what I never heard said in Parliament before Let the words fell from him be written down before he explain them according to the Order of the House Sir G. H. I never heard such words before that the whole House of Commons should reflect upon the King and that he will not obey your Order let the words be written down J. T. The House will be contemptible to the extreamest degree if this be suffered Such a thing as never was in Parliament before that the whole House should reflect on the King and for him to say do what you will I will not go Moves ut ante Sec J. I said no such thing that the House reflected on the King but that I take it as a reflection upon the King my Master J. T. His words were This had not been put upon me but for the Character I bear At last the Secretaries words were thus stated This Message is put upon me for the Character I bear I value not my Life nor Liberty do what you will I will not go Sec J. I say this is put upon me to my apprehension for the Character I bear and do what you will with me I will not go Sir W. J. I am sorry to see any Member behave himself at this rate This Deportment confirms me in the opinion of the design of some men to suppress the Honour of this house There has been a Book written which I hope in time it will be inquired after That the House of Commons sprang first out of Rebellion in H. 3. time This goes on this day in the same method Let a man be of what quality he will if he be too big to be your Member he is not to be chosen To scorn the Commands of the House and to be too big to be a Messenger of the House of Commons Secretaries are sent of Messages every day and is he too big a Messenger to accuse a person of the Popish Plot His words seem to import as if the King would not have the prosecution of the Plot. If this be so sit no longer here but go home His Character is great and he may be privy to things hid from us by this extraordinary carriage Are we come to that pass to be dealt withal as none of our Predecessours ever were If my Brother or Son dealt with the House thus I would call him to account For ought I see he provokes the House more by his Explanation therefore pray go on Sec J. I am as ready and think my self as much obliged to obey the Commands of the House as any man here The Office I have excludes me not from it but the thing I stand upon is that the Motion was carried on in Ridicule I have an Honour for this and ever had for all Houses of Commons but in this Message I must and will be excused Sir H. C. Ridicule is not a word proper for a House of Commons and what is appointed by this House is done with all gravity especially where the life of a man is concerned We are in an unfortunate Age now things come to more light than before that it should be said that Impeachments strike at the King that the Dukes Bill c. is aimed at the King I am sorry to hear it said here as well as in other places This