are assured of evidence. One reason why | manded the said Articles to be read. (See p. Mompesson was secured, was, because nobody 428.) would answer for his forth-coming. If his commitment was a punishment, yet if Seymour was charged in Westminster-Hall, as the first and second articles are, they would take security for his appearance. Why will you then confine him? And it may be the Lords will set him at liberty. You will punish that judge, I believe, that will not bail a person that is bailable by law. Seymour may be forthcoming upon security for his appearance, and therefore I would not commit him.

The House being acquainted, “ That Edward Seymour, esq. was attending at the door, to receive their lordships' pleasure;" he was called in; and being brought to the bar, and kneeling, the Lord Chancellor told him, “That there are Articles of Impeachment, for high Crimes and Misdemeanors, brought from the House of Commons against him, which he should hear read." Which being read; he desired he might have a copy of the Articles, and a short time given him to put in his Answer thereunto; which he is ready to do.

Ordered, by the Lords spiritual and tempo

Mr. Garroway. Methinks you are irregular, and a little aforehand with it. You must vote, "That the Articles must go to the Lords;"ral in parliament assembled, That Edward Seyelse Seymour will stand committed, and nothing mour, esq. may have a copy of the Articles of will appear against him. Sir John Bennet Impeachment brought up by the House of was bailed by the sheriff of London; and if Commons against him. 80, Seymour may be bailed to be forth-coming, and there is no danger of his escape, in this case of misdemeanor; therefore put the question first for ingrossing his Articles.

December 23.

This day being appointed for Edward Seymour, esq. to put in his Answer to the Articles Commons against him; he was called for. And of Impeachment brought from the House of being at the bar, the Lord Chancellor asked him, If his Answer was ready? He acknow

Sir William Poulteney reports from the Committee appointed to put the Articles against Mr. Seymour into the form of an impeachment, That the said Committee had agreed upon a form: which he read in his place; and after-ledged it to be a high and great favour to him from this most honourable House, that he was wards, delivered the same in at the clerk's commanded to answer so soon as this day. He table: where the same being twice read, was, said, His Answer was short, plain, and true; upon the question, agreed to. and so delivered in his Answer, which was read while he was at the bar, as followeth ·

Ordered, "That the said Articles, so agreed upon, be ingrossed.

"Ordered, "That Mr. Seymour be taken into custody of the Serjeant at Arms attending this House, for securing his forthcoming, to answer to the Impeachment of this House against him, until he shall have given sufficient security to this House, to answer to the said impeachment.

Ordered, "That the Serjeant at Arms attending this House, be impowered to receive security for the forth-coming of the said Mr. Seymour, to answer to the impeachment of this House."

Then sir William Portman, Mr. Ash, and others, proffered their security, &c.

Sir Thomas Lee. It is not an ordinary case for a member accused to have so many acquaintance to proffer security for him. You know therefore that you have made an offer to impower the serjeant to take his security.*

"To the first Article: That this Respondent, being Treasurer of the Navy, did receive of the monies raised by the act of parliament mentioned in the said first Article, for building 30 ships, the sum of 498,241/. 1s. 10d. and no more; all which this Respondent did apply to the uses mentioned in the said act, as by this Respondent's accounts, ready to be produced to this honourable House, doth more at large appear. And this Respondent saith, he did not lend 90,000l. or any other sum, parcel of the monies raised by the said act, to any person whatsoever.

HOUSE OF LORDS, December 21, 1680. A Message was brought from the House of Commons, by sir Gilbert Gerrard, knight, and others; who did, in the name of the Commons assembled in parliament, and in the name of all "To the second Article: This Respondent the Commons of England, impeach Edward saith, That he had 40,000l. parcel of the moSeymour, esq. for several high Crimes and Mis-nies raised by the act mentioned in the second demeanors and Offences; and was commanded to exhibit Articles against him for the said high Crimes and Misdemeanors. The House com

* See the Case of Warren Hastings, A. D. 1788, in this Collection,

Article, in his hands, at the time of the treaty between the commissioners of the navy, and the Eastland merchants, mentioned in the se cond Article. But this Respondent dénieth that he ever promised the said merchants to pay them the said 40,000l. or any part of it. And

276. Proceedings against Lord Chief Justice SCROGGS before the Privy Council; and against the said Lord Chief Justice and other Judges in Parliament.* 32 CHARLES II. A. D. 1680.

PROCEEDINGS BEFORE THE PRIVY COUNCIL. ARTICLES OF HIGH MISDEMEANORS, humbly of fered and presented to the consideration of his most sacred Majesty, and his most honourable Privy Council, against Sir WILLIAM SCROGGS, Lord Chief Justice of the King's Bench; exhibited by Dr. Oates, and Capt. Bedlow, 31 Car. 2. I. THAT the said Lord Chief Justice, contrary to his oath, the duty of his place, in con - |

* Roger North, whose representations, however, are always to be received with caution, has interwoven his character of Scroggs, Jones and Weston into the account which he gives of these proceedings against them:

"Mr. Justice Jones was a very reverend and learned judge, a gentleman, and impartial; but, being of Welsh extraction, was apt to warm, and, when much offended, often shewed his heats in a rubor of his countenance, set off by his grey hairs, but appeared in no other disorder; for he refrained himself in due bounds and temper, and seldom or never broke the laws of his gravity. There are, in the Report of | the committee, certain relations tending to accuse divers of the judges; and we know how such matters came ready cooked and dressed up by party men to serve turns, and are presented, with the worst sides forwards, to an assembly then willing to take every thing in the worst sense, and who, from superficial colorus, conclude deep in substances; which matters, passing without bearing, but of one side only, are not much to be regarded. Of this sort was a story from Taunton Dean of the punishment of one Dare, the very person that affronted the king with a petition, as I touched before. [A peti- | tion from Taunton Dean was brought up by a man whose sirname was Dare: He, with his fellows waited upon the stairs of the House of Lords, and, as the king cane down, put the roll into his hand; the king asked, How he dared do that? Sir, said he, my name is Dare. But he had better been asleep elsewhere; for he was af terwards caught speaking seditious words, and was punished by the judge of Assize; and the judge, who was then Mr. Justice, Jones, being pressed to intercede to the king for him, answered, He knew no favour he deserved; which was afterwards put among the sins of the judges, p. 543.] This judge, it seems, upon a legal conviction for seditious words spoken, inflicted such punishment as he thought the crime deserved; and, being pressed to intercede with the king for his majesty's favour to him, answered he knew no favour he deserved. There was one of the sins of that judge. There was nothing more in particular; but he was taken in, with the other judges of the

tempt of the king, his crown and dignity, did set at liberty several persons accused upon oath before him of High Treason, without their being ever tried, or otherwise acquitted; as namely, the lord Brudenell, &c.

II. That at the Trial of sir George Wakeman and others, [See vol. 7, p. 589, of this Collection], at the Sessions-house in the Old Bailey, for High Treason, the said Lord Chief Justice (according to the dignity of his place) managing the said trial, did brow-beat and King's Bench, for two or three matters that passed there while he sat as judge in that court. One was the refusing to present to the king a petition of the Grand Jury of Middlesex about sitting of the parliament. If that was a crime, it was a very slight one; nor do I think any man of law will say that the judges are bound to carry all the crudities of jury-men to the king, but are to use their discretion. Their address, of that sort, is no part of their office; nor do they, in any respect, represent the county; they are taken ، de Corpore Comi tatus,' and not pro, nor have any authority to bind the country in any thing ; but, as to all matters, out of the crown law, they are as single persons and not a jury, nor is any magistrate, or other person, bound to go on their errand. Another great sin of that court was the discharging the Grand Jury three days before the end of the term, while they had divers bills before them to present; among which was an indictment of recusancy against the king's brother the Duke of York. This discharge, they said, was precipitous and unusual, and done on purpose to stop that indictment, which was an obstruction of the justice of the nation. . The jury here, it seems, were not ignoramus, though from the same shop we shall soon hear of a total obstruction of justice, and no crime at all to be found. But now, to examine this affair of the judges, first it is absolutely in the judges discretion when to determine a session, and when to detain or discharge Grand Juries; and de officio judicis non datur exceptio.' But what did it hinder? an Indictment, that is the cause of the crown ; and who else is concerned in it? But for what end? Not for any real effect, for such a bill may be Non Pros. or pardoned the next moment. What then? To be a public affront to the king and his brother; and that if the king had stopped such an Indictment, they might have it to say, in order to rebellion, that there was no justice to be had against papists, and so they must right themselves. Now was it not a very careful provision of the court, by using a discretion the law undoubtedly entrusts them with, to stop such an inconvenience, and so as as it went off silently and without noise? But

curb Dr. Titus Oates and Mr. William Bedlow, two of the principal witnesses for the king in faction are the only masters of discretion, and will not allow the liberty of any to their superiors.

6

that case; and encourage the jury impannelled and sworn to try the malefactors, against the proceeding, viz. the King's Bench by indictment or information, having no ground by law or precedent to proceed for offences, extra to "The next matter, which was highly aggra- the court, otherwise. And when a book is convated against the judges of the King's Bench, vict of crime, it may be part of the judgment as such an illegal invasion of property as had quod non ulterius imprimatur,' which will not been heard of since William the Conqueror, bind the person defendant. But how inept this was a rule made by that court, that a certain method is to stop such a Protean mischief, after book-Liber intitulatus, The Weekly Pacquet a little time, may become sensible. But admit of Advice from Rome, non ulterius imprima- it not to be a clear case on the court-side, there 'tur.' The case of that book was this. The was ground enough for the court, as they say whole labour of the faction at that time was good judges do, to resolve it for their own jubent to make popery as odious and dreadful in risdiction; and errors in judgment of courts of the minds of the common people, as was pos- justice are not criminal, but corrigible by susible; for then the inference of course was, perior authorities. Therefore, in quiet times, All this you are to expect from the Duke of this question had been carried into the House York, and that the king and the duke are all of Lords by a petition of the printer, if he had one, ergo, &c. Upon this design a weekly thought himself grieved; and then there had libel came forth entitled as above, which, under been a due consideration of the law, and the the mask of telling all the extravagant legends king's counsel had been heard upon it, and the of popery in a buffoon style, continually re- determination authentic, as upon a writ of error; flected on the government of that time; and or occasion might have been taken by a short so that collection went on and was pub-clause in an act of parliament, to have declared lished in pieces, which the zealous gathered together most religiously, and now would exchange for any softer sort of paper; for nothing grows so insipid, as old state libels. The printer I think was one Langley Curtis, or one Janeway, and had been informed against, and, I think, convict and punished for some of them. But it was an abuse not easily corrected; for, the outward pretence being against popery, to be accused for that, was to be accused for taking the Protestant side against popery; and every week they varied, so that a conviction of one did not extend to the next, and no ordinary judicial order could reach it. Thus it was very hard to meet with this inconvenience, which may happen at any time, when popularity runs very hard against any government. At length the experiment of this rule was made, but, I think, it went no farther, nor was the printer taken up for any contempt of it; but it was enough; the rule itself was shewed, and, as I said, made a great noise. I do not remember much agitation about the reason upon which the court of King's-Bench took this authority of making a provisional order upon them; but it seems grounded on that law which takes away the Star-Chamber; for it is therein declared, or the judges have resolved, that all jurisdiction which the Star-Chamber might lawfully exercise, rested by law in the court of King's Bench. And it is well known that the StarChamber made provisionary orders, as well as punitive decrees, to obviate great offences; and that some, as Hales (in a posthumous piece) allows, though the originals are not extant, may be ingrafted into the usage of the common law; especially in matters of public nusances. Without doubt the point was controvertible; for it might be said on the other side, true, but then each court must follow the nature of their

the law one way or other. There should be always a distinction between corruption and error; the latter, if Westminster Hall may be heard in the case, is no crime, nor is it, with any aggravation, to be actionable at law. And, upon the reason of these instances, it seems that to proceed by impeachment, for error in judgment, as for crime, is contrary to the policy of the English constitution; in which the authority of courts of justice is sacred, and the exorbitances of them, when they happen, should be set right without exposing to contempt either the persons of judges, or the reverence due to their stations, lest what is got in the shire, is lost in the hundred. But it is seldom found that, when persons are fallen upon in an heat, as upon the vindicative turns of parties, any decorum is observed, or due steps taken; for they will always be too long or too short. Thus far concerning the King's Bench, as a court, and its legal jurisdiction; which, in this instance also (but in nothing more) touched Mr. Justice Jones.

"The case of Mr. Baron Weston was very extraordinary indeed; he was a learned man, not only in the common law, wherein he had a refined and speculative skill, but in the civil and imperial law, as also in history and humanity in general. But, being insupportably tortured with the gout, became of so touchy a temper, and susceptible of anger and passion, that any affected or unreasonable opposition to his opi nion would inflame him so as to make him appear as if he were mad; but, when treated reasonably, no man ever was more a gentleman, obliging, condescensive, and communicative than he was. Therefore, while a practiser, he was observed always to succeed better in arguing solemnly, than in managing of evidence; for the adversary knew how to touch his pas sions, and make them disorder him, and then

dence, and the misrepeating and omitting material parts of their evidence; whereby the be certain to every intent, or else it is void and will be quashed. For which reason, if words may be taken in any harmless sense, though the same words will also bear a criminal sense, they shall be taken in the mildest sense. But however, was it reasonable to bring such a charge as this against an, otherwise, unexceptionable judge? It was much wondered,at the time, that, in all this noise about the judges, none were sent for to the House; the cause was thought to be, that they were stout men, and would have justified all they had done, and that was not thought seasonable. The baron for his part, was so far from being concerned at the terrible sound of an impeachment, that, when the other judges looked grave and solemn, he was as gay and debonair as at a wedding; and was only sorry that he had not an opportunity of talking in the House of Commons, and would have compounded, for a moderate punishment, to have had his full scope of arguing his own case before them. And, as for impeachment, he longed to be at it with them, he cared not where, or before whom, provided he might have his talk out. He was prepared to set up Magna Charta, and to demand the Judicium parium, and his lawful challenges, and to shew that Ler Terra was referred to the court, and not to the country, and was nothing to the purpose against his right of trial; and, upon that law he would have died at a stake, and not have quitted one iota of his judgment to all the world. It is pity such a stout combatant had not had a clear stage and a fair enemy; but, as things fell out, they were not so hard pressed.

said witnesses, by his publicly speaking slightly and abusively against them and their evi. take advantage of it. But, at the bottom, he was as just as the driven snow, and, being a judge, for which office he was fit, because he had neither fear, favour nor affection besides his judgment, he would often, in his charges, shine with his learning and wit; and a little too much of that brought this accusation over him. He was one of a clear conduct, and by principle, honest and just, and, as we find in the best of that character, so was he intrepid, and feared not the face of all human kind. He made no ceremony of flying in the face of faction at all turns, and, being one of those they call prerogative men, inaccessible and unalterable, he was hated bittterly by the party. And to do him and the rest of those gentlemen right, I must needs say that the prerogative of the crown is a doctrine so constantly recommended in the law books, that a man cannot be an honest learned lawyer, but must be in the popular sense, a prerogative man, and, in every sense, a hater of what they call a republic. This learned judge was so steady in his administration, that no advantage could be taken against him for what he did; so they watched his circuit charges, to find somewhat he might say to accuse him of. And the only passage, I find charged upon him, was at Kingston assizes, where he ranted against Zuinglius and Calvin, and their disciples, for their fanatical restless spirit. For now, said he, they are amusing us with fears, and nothing would serve them but a parliament. He knew no representative of the nation but the king (which in an actual sense, is true, for, in parliament, such, as do not choose, have no actual repre"No articles were ever prepared against any sentative; but, in a legal sense, as to the being of the judges, except sir William Scroggs, the bound all are represented) all power, says he, chief justice of the King's-bench, against centers in him. (That is all coercive power.) And whom articles were brought to the House, and then the judge, in the towering of his fancy, says ordered to stand; but I do not find by the print, i'faith he (the king) has wisdom enough to that any members were appointed by the entrust it no more with these men, who have House to carry them up. He was a man that given us such late examples of their wisdom lay too open; his course of life was scandalous, ' and faithfulness,' It would be hard to prove and his discourses violent and intemperate. His here whom he spoke of, so as to frame, out of talent was wit; and he was master of sagathese words, an accusation; but it seems there city and boldness enough, for the setting off of was no better, and so it came before the House which, his person was large, and his visage of Commons; would any one have thought it? broad. He had a fluent expression, and many "It is to be noted that, during this heat, as if good turns of thought and language. But he the common law of justice had been abroga- could not avoid extremities; if he did ill, it was ted, none of these reverend men were either extremely so, and if well, in extreme also. In called to be heard, or had any time given them the plot, he was violent to insanity; and then, to answer; but the censure of the House, past, receiving intelligence of a truer interest at and, for punishment, they were to be impeach-court, he was converted, and became, all at ed. The crime against baron Weston, was that the words, in his charge, were scandalous to the reformation, and tending to raise dis'cord,' &c. A new sort of offence. It hath been the usage of the common law, to charge men with fact done, or words, of a direct sense spoken. Matter of aggravation never makes an accusation where the subject, of itself, doth not bear it. And so careful is the law of criminal matters, that it requires an indictment to

once, no less violent the other way; which made the plot-drivers and witnesses hate him. And Oates and Bedloe did him the honour to prefer articles to the king in council against him, charging various immoralities; and there was an hearing, but, they failing of proof, he was justified. The occasion of his conversion, as I was told by the person that administered the means to him, was this. The lord chief justice came once from Windsor with a lord of the