Court Decisions and Debates
Godden v. Hales
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Debates in the convention parliament of 1689 over the right of the King to be above the law
June 12, 1689
The Debate went off, and the King’s Letter was read relating to the Indemnity, [dated Jan. 22, 1688.]
Sir Robert Cotton, of Cambridgeshire.] The Advice the King has given in his Letter may contribute to the forwarding the business of the Indemnity, and satisfaction of the Nation. Nothing will more settle the Nation, than a quiet peaceable spirit amongst ourselves; and as the King has expressed great kindness to his Subjects, so I hope we shall proceed with that temper as may quiet the Nation, by as much moderation and unity, in naming the persons to be excepted, as possibly the nature of the thing may bear.
Mr Howe.] Pray lay a foundation: No man that has a falling house will live in it with props. For want of a foundation, a new building can never be strong. As to the King’s Letter about the Indemnity, I wish it may be so for ever; but, as I wish to God we may forget what is past, so likewise that we may punish those who endeavoured to destroy our Liberty and Religion. Some, in the worst of times, did die Martyrs for it. As I would forget, so I would not confirm, all the ill things in time past. I would have as few excepted out of the Indemnity, as may be pardoned, as any man; but I would not give encouragement to exercise the same thing on to posterity. The Guilty are in haste to be forgiven, and the Innocent fear a return of the same ill things. I hope we shall have a temper in what we do.
The Record of Sir Edward Hales‘s Case was read.
Sir John Guise.] If you intend to except any persons out of the Indemnity, you have now an occasion. We hear who the Judges were that gave their opinions in this case. I hear Jones and Wythens were so; pray make them Examples.
Mr Howe.] You are going upon a Company of Judges, like the East India Company; they were the instruments, but those who put them upon it, and advised, are rather to be excepted; but if you name a Committee to bring in the names of the Counsellors, then you may chuse whom you will make Examples of, and distinguish them from honest men. Those who built theirs upon our misfortune, go about still in the World, and make speeches in vindication of what was done. I hope we shall proceed so as no man may have reason to blame us.
Marquess of Winchester.] The Prince’s Declaration turns all upon evil Counsellors: I hope they are gone away with King James; but if they still remain here, those are the persons you aim at, who sat with King James from the first to the last. I move for a Committee to inspect who those were, and then you will see whom to except.
Mr Hawles.] I wish you had gone on in order of time. This is the last, though first read. I think the Judges, and that Attorney and Sollicitor (I know not who they were) I think they ought to be under one head, and Sir Edward Hales another.
Sir Thomas Lee.] I have sometimes sat here when miscarriages have been spoken of, and have heard an ingenious Gentleman say, ” Take them not as a whole faggot, but stick by stick, and you may break them.” Take them man by man, and you may come to your end.
Mr Hawles.] Let the Committee enquire into the Proceedings of Lord Chief Justice Herbert, and Justice Wythens, and you may know all.
Mr Howe.] Before you take out a stick, lay all the faggot before you. Let us know all the Criminals, and then except whom you please. I move for a Committee to bring in the names of them all.
The Speaker.] That of Sir Edward Hales was a fictitious Plea.
Mr Hawles.] You will find it was a real Plea: Send for the Clerks of that Court, and they will inform you, that Hales was at 60l. charge in the Suit.
Mr Foley.] I cannot see how we can proceed, unless by a Committee. Other Judges are more criminal about the Dispensing Power, than those named. Where a Judge’s opinion was for dispensing with one man, he is not so great a Criminal as those who gave their opinions for dispensing with all. Till that be reported, you cannot give an opinion.
Sir William Williams.] I doubt we are going into a wood. You have received the Record of Hales and Godden; the Committee must know the matter by Record, or Witnesses. It was Easter Term, 2 James. Go into the Courts, and you will see who were Judges that Term. If I was a Judge, I would confess the thing immediately. Why should things be concealed? It looks as if we were afraid; as if all were infected.. All know that Herbert was the first, Wythens the second, Holloway the third, and Wright the fourth. Having said this, pray take my memory as you will take other Gentlemens. As for the Common Pleas, (I think Benefield is dead) Streete spoke against it, for his reputation, the only man—(Milton and Alibone are dead)—Lord Chief Baron Montagu left his place upon it; Barons Atkins and Jenner were for it: I speak only on my memory. Certainly, when that accursed Judgment was given, those who concurred with the rest are most to blame. Herbert spoke his own judgment, prompted by the rest. No man can alter his judgment without design. A man that had this byass, and found the rest of the Judges inclined, was confirmed in his opinion. I take them to be equally culpable—Herbert is abroad, and not here to excuse himself. The rest are dead, and have answered it in another place.
Mr Hampden.] Let a Committee be appointed to enquire into those concerned, in every Head, and then report it, and you may be then ready to go on with the names of the persons. My chief reason is, I would not have you go upon persons without good proof; not upon general fame; else, instead of doing justice in Parliament, you will expose their reputation.
Sir Joseph Tredenham.] This Enquiry implies, that the person so excepted out of the Indemnity shall not have the mercy of this House, nor of the whole Kingdom. Every Gentleman, before he gives his resolution, will satisfy himself in the matter of fact; and any man is capable of seeing the Record. As to Sir Edward Hales‘s case of Dispensation, books have been published, and I shall say the less of that; most Gentlemen, I presume, being satisfied. Herbert has written his own Justification, and it has with me some weight. As to the general Declaration, I could never find any thing in my reading to justify it, it pulling all up by the roots, and the Law of no force; nothing like it but the Case in Charles II. Whoever will follow such a Precedent, so justly decried by all people, deserves to be punished. Where there is just cause, you may proceed to Exception, and let Justice go with Mercy.
Sir Robert Howard.] I suppose you will go farther than the four Judges; to the Advisers and Promoters of the Judgments. But how will you be informed, and bring persons to do it? The only way to do it is to name the persons visible, and who are matter of Record; without a Committee, it is impossible to have names. Therefore I move, that you will go upon the several Heads, and those to be referred to a Committee, to name persons in relation to those Heads. When these are all before you, the Names may be put to the Heads, and you may proceed upon them.
Sir Thomas Lee.] I would understand what it is you are about; whether an Act of Indemnity, or Pains and Penalties? I conceive you are not going by Impeachments, and I suppose you are not setting up an Enquiry, who was of this opinion, or who that; if so you must go all England over. No man can miss the Name of a man, if he please, they have been so notorious. These Heads lead you to every man you will except, and these are obvious.
Mr Brewer.] Whoever the Judges were, they are great Criminals; but I would have the Offence certain. I dare say, no Judgment was ever given in the Declaration, but you may know who were Judges in the King’s-Bench then.
Mr Howe.] I suppose it is not designed that you should except all those Names, and we do it at Committees. We have begun this Head, though one of the last of Grievances—But I would have them distinguished from mankind. I would know those who broke the hedges, and let in the cattle; and then see who you will except, and who you will forget.
Sir Robert Cotton, of Cambridgeshire.] I am against a Committee: I think it will alarm the whole Nation. I think the former Indemnity did quiet the Nation, and I hope this will. I think there needs no Committee to inform you who the Judges were, who the Lord-Lieutenants, and who concerned in Corporations; persons so notorious, and so well known, that the whole Nation can distinguish them; therefore I am against a Committee, &c.
Sir Robert Howard.] I do not apprehend the danger of a Committee. I wonder at this doctrine, “that a Committee should alarm the Nation.” Is it not an Alarm to the Nation to have a Dispensing Power, and Judgments against Corporations? I wonder this should go so high (as is said) to “alarm the Nation.” No such Offences were known before; such Powers were never known before: The very roots of Parliament destroyed. I shall not be zealous in contending, whether you will have a Committee, or no, to enquire into Persons; but you must have a Committee to enquire into the Courts of Justice; and I move, that you will go upon Names; and I think it will be for the content of the People, and not to “alarm” them.
Mr Hawles.] I know not the custom heretofore, in Bills of this nature; but I see no inconvenience in a Committee. The Officers of the Court may give the same Information to a Committee as to the House. ‘Tis the shorter way to examine it before a Committee, only to enquire into Officers and Judges. It may tend to expedite the matter.
Mr Ettrick.] I desire an end of this as much as any man. The Judges are going the Circuits, and the Jails are full: Your Act may come too late into the Country. To enquire into the Advisers and Assisters will take up a great deal of time. Those who were notoriously exemplary I would put a mark upon; and let the others go off without any mark, and clear.
Mr Sacheverell.] I have not known, but if Gentlemen are willing to relinquish a Question never put, but that it has been laid aside; and pray put no difficulty upon the House.
The Speaker.] I moved it; and Gentlemen said, “No, no.”
Col. Birch.] If I knew the man, the mark you would shoot at, I could speak better. ‘Tis a plain Question, ” Whether you will refer it to a Committee, or no?” If to a Committee, then you are to give Instructions.
Mr Coningsby.] This Bill of Indemnity has been called “a walking Ghost;” and if you adjourn the Debate, it will always be a Shadow, and not regarded; therefore I am for going on.
The Question for a Committe passed in the Negative.
Sir Thomas Lee.] I hope one day more will bring an end to your Resolutions in this matter of Names. Sir Edward Hales has been named, and if I name a person with King James, I do nobody any harm. I name Lord Chief Justice Herbert (fn. 2) to be one excepted.
Mr Howe.] I am against naming Herbert; it was his opinion, and he was guilty of no other fault; he has modestly retired, and left our company. I would leave him out.
Ordered, That the Officers of the King’s-Bench bring in who were the Judges in Sir Edward Hales‘s Case, &c.
Tuesday, June 18.
. . .
The Speaker said] The House has sent for you to desire you to inform them, whether the Judges were sent to to meet together in Sir Edward Hales‘s Case?
Mr Justice Powell.] The Judges were sent to to meet my Lord Chancellor at Serjeant’s Inn, in Fleet-Street; all the twelve Judges were present, and there it was proposed, Whether the King could dispense, &c. in Sir Edward Hales‘s Case? I beg the Favour to be excused from making answer as to Persons. ‘Tis improper for me to accuse any. I humbly beg the Favour that I may be exempted. And withdrew.
Col. Birch.] It seems, he is tender in revealing what passed, on private considerations; but what was done upon that Occasion was on a public Account. I conceive it not the Intention of the House that this Gentleman give Evidence; but I think it necessary that you know what Opinion was given, because you were told that eleven Judges were of that Opinion.
Mr Leveson Gower.] I am of Opinion, that no Imputation can lie upon him to tell you the Opinion they gave; but I would not ask him what Opinion he was of; but how many signed their Opinion at that time.
Sir Thomas Littleton.] If you go through with this Question, he may live uneasy in his Judge’s place. I doubt not, Powell gave his Opinion for it, and Streete was the only man against it. I think he has given a very particular Account to the Lords, and it is fit he should do it to you likewise.
Mr Garroway.] I wonder what you sent to this Judge for. Now he comes, he makes you a great Compliment, whether you will ask him the Question, or not? If the Crime be such as that all is at stake upon it; ask him plainly, what Opinion these Judges gave, but not himself. I hear he has frankly and freely given an Account in the Lords House.
Sir Henry Capel.] Was this Judge in any public Court on oath, he ought to tell what he knows. For once, let us not part with our Laws, without some struggle for it. I stand amazed that Powell is tender in it here. He is not to be excused for his Modesty, though a good thing. When that compliment and excuse is over, for the good of the Nation, he ought to give you a clear Account. I hope, you will tell him that this House requires it of him to inform you, and I believe he will obey you.
[He was called in.]
The Speaker.] Mr Justice Powell, the House has considered your Answer, and have commanded me to acquaint you, that for what concerns your self they will not question you, nor require an Answer; but for what you please of the other Judges, there can be no tye of Secrecy; you are under a duty to tell your Knowlege. This is not properly an Accusation of the Judges, but your testimony is required to deliver your Knowledge.
Mr Justice Powell.] I am very free to declare any thing relating to myself, but to others, unless you command me, I desire your excuse. ‘Tis at a great distance, a great while since, but I shall declare what I remember. I am unwilling to incur the Displeasure of this honourable House—Going on Wednesday or Thursday in Trinity Term, [2 James II,] to dine at Serjeants Inn, in ChanceryLane, I was desired to attend at the other Serjeants Inn, in Fleetstreet, at four o’clock; where being met, my Lord Chief Justice Herbert told us what the business was. He desired my Opinion, with the rest of the Judges, in Sir Edward Hales‘s Case. He cited some Cases to make out the King’s Dispensing Power. He cited Coke’s 12th Report. After he had done, it was my turn, as Puisne Judge, to speak. I answered, “The Case was of great Importance, and, for the present, I was not able to do it, till I had consulted Books against Michaelmas Term.” He said, “He would have it on Tuesday.” I said, “The time was short, but I would wait on him.” Milton, who was then Baron, gave his Opinion, “That he might dispense.”The next was Lutwich, who said, “He restrained it to this Case, and thought the King could dispense [in this Case, but not (fn. 3) ] in Ecclesiastical Cases.” He restrained it to that Case before us not relating to Religion.” Jenner was next, who said, “The King might dispense.” Wright was for dispensing. Holloway, I believe, was for dispensing; I cannot say it positively; I was at a distance. Streete was against it. Lord Chief Baron Atkins was at a greater distance; I could not well understand him; he cited several Cases. Lord Chief Justice Bedingfield‘s Opinion was, “That the King could dispense.” This is all I can say in the matter transacted so long ago. Nothing was put in writing, nor notes taken of what was then spoken. As for what concerns myself, I attended my Lord Chief Justice, at his Chamber. I called on Mr Justice Lutwich, who went with me, and there I heard first of the Judgment given on Monday morning. ‘Twas given on Monday, because there was a Grand Jury of Persons of Quality that day, and it was thought the next would not have had such an Audience, and therefore they hasted giving Judgment that day; so I did not deliver my Opinion. I beg pardon, it was my forgetfulness not to name Wythens and Heath—(Upon the Speaker’s asking of them, &c.) They were with the majority for the Dispensing Power. I think no persons were present but the twelve Judges, and I am pretty confident of it. The Question was delivered by word of mouth, by Lord Chief Justice Herbert, “Whether the King could dispense with the Statute of 25 Charles II, and the accepting a Commission by that Dispensation?” He withdrew.
Sir Samuel Astrey, being interrogated by the Speaker, said,] Lord Chief Justice Herbert, Wright, and Holloway, were present at pronouncing the Judgment in the Case of Sir Edward Hales and Godwyn. The Opinion, in the Dispensing Power, was pronounced by Lord Chief Justice Herbert, who said, “It was not only the Opinion of the Judges in the Court, but he had consulted the rest of the Judges, and it was the Opinion of ten of them.” He said, “There was another Judge did hesitate when they did meet.” I beg pardon if I mistake in words, but in substance he said) “Ten were for it.” Justice Streete was against it, and another Judge did hesitate, but that he was informed, by Holloway, that Justice Powell had declared his Opinion for it.” He withdrew.
Sir Robert Henley, being interrogated in like manner, said;] I was present in Court 2 James II, when the Case of Hales and Godwyn was argued. There were present in Court Lord Chief Justice Herbert, Wythens, Holloway, and Wright. The Case was argued but once, by a young Gentleman, Mr Northey, against the Dispensing, for Godwyn against Hales, upon an Action of Debt on the Statute, Tam quam, &c. The King’s Counsel argued for the Defendant on the other side. I am certain these were the Judges. I looked on my Book. The Case was argued but once, not seriatim, but by Herbert only: He said, “He had consulted the Judges, and they did all concur; but that Streete, and another Judge doubted”
Mr Garroway.] I have something to ask more. I would know who were the King’s Counsel, who argued against the King? That was a very pleasant thing.
Sir Robert Henley, being asked, &c.] Sir Thomas Powis, the Sollicitor-General, argued for Hales, and Mr Northey for the King.
Sir Samuel Astrey.] I cannot charge my memory with Lord Chief Justice Herbert‘s Argument.
Sir Robert Henley.] I remember, the Precedents cited were for “the necessity of it, and that the King was judge of that necessity.” The Rule-Book will exactly tell the day.
The Oath of the Attorney-General was read.
House of Commons Journal, volume 10, accessed via IHR, British History Online
Martis, 18 die Junii; 1° Willielmi et Mariæ, Anno Domini 1689.
Justice Powell examined as to the dispensing Power.
The House being informed, that Mr. Justice Powell attended, according to their Order Yesterday;
Resolved, That he be called in; and examined, in relation to the Case of Godwyn and Hales; and what Questions had been proposed to the Judges concerning the King’s Power of Dispensing with the Laws; and what Resolutions the Judges gave thereupon.
And a Chair was ordered to be set for him within the Bar, on the Left Hand.
And he, being called in, came and stood behind the Chair, the Serjeant with his Mace standing by him on his Right Hand.
And being asked concerning the Matter aforesaid;
He said, That Sir Robert Wright being then Puisne Judge of the King’s Bench, being of Serjeants Inn in Chancery Lane, told him upon Wednesday or Thursday in Trinity Term, 2 Jac. II. before the Judgment given in Godwyn and Hales, that he was ordered by Sir Edward Herbert, the then Chief Justice of the King’s Bench, to acquaint the Judges of that Inn, that he was commanded by the King to assemble all the Judges upon the Friday then next following, at the Hall of Serjeants Inn in Fleetstreet, at Four of the Clock in the Afternoon of that Day, to consult with them upon a certain Matter: And that accordingly all the Judges met there: Where, after the Judges were sat, the Lord Chief Justice Herbert related the Matter they were met about; and put the Case of Goodwyn and Hales to this Effect; viz. “That an Information was exhibited against the Defendant, upon the Statute of 25 Car. IIdi, for exercising the Office of a Colonel of a Regiment of Foot, without taking the Oaths of Allegiance and Supremacy, and the Test, as by the said Act is prescribed; to which Information the Defendant pleaded a Patent from the King under the Great Seal; whereby he dispensed with him taking the said Oaths and Test, with a Non obstante to the said Statute;” and desired their Opinions, Whether the King had Power to dispense with the said Statute?
And, being then asked, What were the Opinions then delivered by the Judges? he desired the House would excuse him from answering to that Question.
Whereupon he was ordered to withdraw.
And the House entering upon the Debate of his said Answer;
Resolved, That he be called in again; and required, in the Name of the House, to declare what Opinions the several Judges then gave, except, as to himself, they left him to his own Liberty, whether he would acquaint the House therewith or not.
Exceptions in Bill of Indemity.
And a Debate arising upon the First Head of Exceptions concerning the Dispensing Power, and the Case of Goodwyn and Hales;
Resolved, That Sir Edward Herbert be excepted out of the Bill of Indemnity, upon this Head.
Resolved, That Sir Francis Withens be excepted out of the Bill of Indemnity, on this Head.
Resolved, That Sir Richard Holloway be excepted out of the Bill of Indemnity, on this Head.
Resolved, That Sir Robert Wright be excepted out of the Bill of Indemnity, upon this Head.
And then the House adjourned till To-morrow Morning, Nine of the Clock.
The House was informed, that Sir Robert Henley and Sir Samuel Astrey attended, according to their Order Yesterday.
And they were called in to the Bar; and gave an Account of the Judges in the King’s Bench, when Judgment was given in the Case of Goodwyn and Hales; viz. The Lord Chief Justice Sir Edward Herbert, Sir Francis Withens, Sir Rich. Holloway, and Sir Robert Wright; and they all concurred in their Opinion: And that Sir Edward Herbert pronounced the Judgment; and said, He had consulted the other Judges: And that it was the Opinion of Ten of them; and that One dissented, and One hesitated upon it: But that he had been informed, that Morning by Sir Richard Holloway, that the latter of them was of the same Opinion: And that the Case was argued but once by Mr. Northey against the Dispensing Power, and by the King’s Counsel (Sir Thomas Powis) for it: And that the Judgment was pronounced by the Lord Chief Justice alone, without the other Judges doing it seriatim, as is usual: And that there were some Positions or Theses laid down by the Lord Chief Justice; some of which were, That the Laws were the King’s Laws; that the King might dispense with his Laws in case of Necessity; and that the King was Judge of that Necessity.
[On forfeiting 500 Pounds for their role in the decision:]
May 15, 1689
Another ingrossed Clause was offered to be added, as a Rider, That whereas a Judgment was given in Easter or Trinity Term 1686, in a Suit between Godden and Hales, contrary to Law; it enacts, That every Judge of the Court who consented thereto; and also every Judge and Baron, who delivered any Opinion for the Giving of the said Judgment, or for the Dispensing with the Statute, shall forfeit
: And that every Person who passed any Patent dispensing with the same, shall be for ever disabled from holding any Employment or Trust: And that every Judge or Baron, that were so in the said Easter or Trinity Term, who shall not appear before the Commissioners for that Purpose appointed, and prove that he did deliver his Opinion against the said Judgment; such Judge or Baron shall be adjudged to be convicted, and to incur the said Forfeitures and Disabilities: Which Clause was twice read.
Resolved, That the Blank be filled with Five hundred Pounds and no more.
An Amendment was proposed to be made in the said Clause, by leaving out that Part thereof which related to Disabilities of Persons as aforesaid: And upon the Question put thereupon, the same was agreed unto by the House.
Then the Question being put, That the Clause be read the Third time;
It passed in the Negative.
Another ingrossed Proviso was offered to be added, as a Rider; That this Act shall not extend to charge any Person who, after the Eighth of October, and before the Thirteenth of February 1688, accepted of any Office or Commission, and executed the same, without Qualifying himself, if such Person do, before the First of August next, receive the Sacrament, and take the Oaths in the Statute for abrogating the Oaths of Supremacy and Allegiance, and appointing other Oaths, and make the Declaration in the Statute of 25° Car. II.: Which Proviso was twice read.
And the Question being put, That it be read the Third time;
The House divided.
The Yeas go forth.
23 May 1689
Charges against Lord Jeffryes.
The Committee had considered the Case of the late Lord Chancellor Jeffryes, whose Commitment to the Tower is as followeth; viz.
WE the Peers of this Realm, being assembled with some of the Privy Council, do hereby Will and Require you to take into your Custody the Body of George Lord Jeffryes (herewith sent unto you); and him to keep safe Prisoner, until further Order: For which this shall be sufficient Warrant. Council Chamber in Whitehall, the 12th of December 1688.
Halifax, Vaughan, Carbery, Kent, Aylesbury, North and Grey, Anglesey, Rochester, Mulgrave, Carlisle, Berkley, Nottingham, Sussex, Crewe, P. Winchester.
To the Right honourable Lord Lucas, Chief Governor of the Tower of London.
And, in regard, there is no Crime expressed in the said Commitment, they first had Recourse to the Notoriety of his Crimes, known almost to the whole Kingdom, and the Evidence of them by Records and Commissions, or Patents extant under the Great Seal of England.
That they find it to be notorious, That he was instrumental in the undue and illegal Prosecution, Condemuation, and Death of William late Lord Russell, Algernoon Sidney, Esquire, Mr. Fitzharris, Mr. Stephen Colledge; and that, contrary to the Law, he awarded and procured the Execution of Sir Thomas Armstrong, as a Traitor, without Trial for any Crime whatsoever, though a legal Trial was demanded of him: And it is expressly declared, by the Accounts of Mr. Graham and Mr. Burton, before-mentioned in this Report, That the said late Lord Jeffryes undertook the Management of the Prosecutions in the West for High Treason, after the late Duke of Monmouth‘s Invasion; and that he received One thousand Four hundred and Sixteen Pounds Ten Shillings of the said Graham and Burton, for that Affair; and took out a special Commission of Oyer and Terminer for that Purpose: Yet it appears, that the said Graham and Burton paid, unto other Commissioners, about finding the Estates of Persons then attainted, the Sum of One thousand One hundred and Seventeen Pounds Eighteen Shillings and Ten-pence.
That it was further evidenced, That the said late Lord Chancellor passed several Grants under the Great Seal, to many Lords, and others, to dispense with their Obedience to many of the known Laws of the Realm; and to authorize them expressly to transgress the same; and to hold and execute divers Offices and Powers, Military and Civil; which they were disallowed, by the known Laws of the Realm, to exercise, hold, and enjoy.
There is come to the Hands of the Committee, amongst Patents, Papers, One Patent under the Great Seal, dated the 15th of July, in the Third Year of the late King James the Second, for dispensing, in that manner, with William Marquis of Powis, Henry Lord Arundell of Warder, Henry Jarmine Baron of Dover, John Lord Bellosis, Lord Walgrave, Lord Thomas Howard, Sir Robert Wright Lord Chief Justice of the King’s Bench, Sir Rich. Alibone One of the Judges of the same Court, Sir Christopher Milton Baron of the Exchequer, Sir Edw. Hales, Knight, . . . of the Castle of Dover, and One of the Judges of the Admiralty; and Sixteen others of lesser Quality.
That it further appeared, That the said late Lord Chancellor Jeffryes passed under the Great Seal, a Commission dated the 15th of July, in the Second Year of the late King James the Second, to William Lord Archbishop of Canterbury, George Lord Jeffryes Lord Chancellor of England, Lawrence Earl of Rochester Lord High Treasurer of England, Robert Earl of Sunderland, Nathanael Lord Bishop of Durham, Thomas Lord Bishop of Rochester, Sir Edward Herbert, Knight, and Chief Justice of the Common Pleas, and, by the Inscription of the Seal, appointed for the said Commissioners, it was stiled, a Commission for Ecclesiastical Causes; and therein it is expressed, That the late King James, by Virtue and Force of his supreme Authority, and Prerogative Royal, he grants unto the said Commissioners full Power and Authority over all the Subjects, to inquire of, and punish all their Offences, Transgressions, and Misdemeanors, whatsoever, done, or to be done, that can lawfully be * by the Spiritual or Ecclesiastical Laws of this Realm: Which comprehends all their Sins whatsoever against God or Man.
That there is further, a special Grant, to inquire and search out the Offences and Misdemeanors of all Ecclesiastical Persons, of whatsoever Dignity; and suspend or deprive them of their Freeholds, and of all their Ecclesiastical Functions, at their Will.
That there is a further Grant, of absolute Power over all the Marriages of all the Subjects; whereupon depends the Descent of all the Inheritances of the Kingdom.
There is also granted to them Power to call before them all that shall seem, by themselves, to be suspected of any Misdemeanors whatsoever; and to examine them, against themselves, about their whole Lives, if they please; and to censure them, as they shall judge of it: And all the several Powers granted to them were to be so absolute, that they were authorized to excommunicate, and thereby expose to perpetual Imprisonment, at their Wills, all that should not obey any of their Commandments, or Orders, in any Part of their Commission; if it were only for refusing to answer their Questions, when they examined them against themselves; or for neglecting to assist in the Execution of any of their Commands.
And, as to Ecclesiastical Persons, their Power was, to deprive them of their Freeholds, and their Functions too, if they should disobey, or neglect to accomplish, the least of their Commands or Orders.
That further Power is also granted to them over the Estates of all the Subjects, to give, at their Discretion, unto all Informers and Prosecutors against them, for any pretended Misdemeanors or Offences, whatsoever Expence and Costs of Suit they should think fit.
That there is further granted to the said Commissioners, an absolute Power over the Universities of Oxford and Cambridge, and Cathedral and Collegiate Churches, Colleges, and Grammar Schools, and other Ecclesiastical Incorporations as to all their Lands, Rents, and Revenues; and as to all their Statutes, Rules and Ordinances, made by their Founders, or any otherwise, though settled or confirmed by Acts of Parliament, or any Grants of former Kings.
That there is a Second Commission, passed by the Lord Jeffryes, of the same Nature, to the same Persons, excepting only Wm. Lord Archbishop of Canterbury; and, with the Addition of John Earl of Mulgrave, dated the 22th Day of November, in the Second Year of the late King James the Second.
That there is a Third Commission granted by the said late Lord Chancellor Jefferyes, of the same Nature, to the same Persons in the Second, except the Earl of Rochester; with the Addition of Theophilus Earl of Huntington, dated the 12th of January, in the Second Year of the said late King James the Second.
That there is a Fourth Commission, to the same Persons in the Third, and to the same Effect, dated the 5th of May, in the Third Year of the said late King James.
That there is a Fifth Commission passed by the said late Lord Chancellor Jefferyes, of the same Nature, to the same Persons in the said Fourth Commission, excepting Sir Edward Herbert, Knight; and with the Addition of Thomas Lord Bishop of Chester, Sir Robert Wright, Lord Chief Justice, and Sir Thomas Jenner, Knight, one of the Barons of the Exchequer.
Charges against Lord Jefferies.
And it appearing to the Committee, That the Powers granted by all these Commissions were an open and avowed Oppression and Contradiction to the Laws and Government of England; and intended for the utter Subversion of the Protestant Religion, and the Subjects Property and Liberty; they inquired whether the said Commissions were executed by the said Commissioners: And caused the Book of the Register of the said Commissioners to be brought before them; whereby it is manifest, that all the said Commissioners, named in the said Commission, save only Wm. Lord Archbishop of Canterbury, actually sat in Execution of the same, and assumed these Powers over the Subjects, pretended to be given them.
That they took upon them to judge Causes, and to tax and give Costs and Charges at their Discretion; and had actually excommunicated Sir Henry Hudson, Baronet, Mr. Charles Stepkins, and others, for Non-payment of Costs and Charges by them given; and decreed his Grace the Duke of Norfolke to pay such Monies as they pleased, or to be excommunicated.
And that they assumed and exercised, in Part, an absolute Power over the Universities; commanded to be brought to them all Writings whatsoever, that concern the Execution and Foundation of their Colleges, and all their Statutes, Rules and Ordinances, as they did to University College in Oxford, Sidny Sussex College in Cambridge, and Christ-church in Oxford: And the said Commissioners took upon them to charge the Foundations, * * Statutes of Sidney Sussex College aforesaid; and decreed to be absolute, and annihilated, that Part of the Chapter of their Statutes, about the Quality of a new Master to be chosen, which appointed, That he should detest and abhor Popery, Heresies, and Superstitions; and that Part of the Eleventh Chapter, that requires the Master to be contrary to Popery, and to prefer the Authority of the Scriptures before the Judgment even of the best of Men.
That the said Commissioners also decreed to be abolished, that Part of the Seventeenth Chapter, concerning the Quality of the Fellows of the said College, which required, that they should be opposite to Popery; and that Part of the Nineteenth Chapter, that forbid all Mandamus’s, and Letters, and Messengers, to be accepted in Favour of any to be chosen Fellows of that College; and made all Elections by such Means, to be void: So that the Committee observed these to be overt avowed Acts, to subvert the Protestant Religion, that Right and Freedom of Election established by the Founders of the said College, which is a Subversion of Property.
That the Committee also observes, That, in all these Commissions, the said late Lord Chancellor Jeffryes was appointed to be of the Quorum, and sat accordingly in the Execution of the same.
Charges against Sir R. Wright.
That the Committee proceeded to inquire into the Case of Sir Robert Wright, late Lord Chief Justice: And the Cause of his Commitment not being expressed in the Mittimus, they had Recourse to such Matters as are manifest by Record, and publick Writings, and to such of his Actions, as are notoriously known beyond Contradiction.
It appeared to them, That the said Sir Robert Wright was One of the Judges in the Execution of all the Cruelties done there, after the Invasion made by the late Duke of Monmouth: And, that he was one of the Judges that gave Judgment in the Case of Sir Edward Hales, that the King might legally dispense with the Statutes made for the Security of the Kingdom. And the said Sir Robert Wright was a Commissioner in the Fifth Commission for Ecclesiastical Causes; and acted notoriously in the Execution of the same, as well jointly with all the other Commissioners at London, as well particularly with Sir Thomas Jenner, and the Bishop of Chester, at Oxford, by colour of a Clause in the said Fifth Commission, that gave Power to any Two of them to visit St. Mary Magdalene College in the University of Oxford: And the said Sir Robert committed therein great Enormities, expelling the President and Fellows of the said College from their Freehold, and entering upon their Possessions by open Force; and afterwards at London, joined with the other Commissioners aforesaid, to decree the said President, and Fellows of the said College, to be for ever incapable of enjoying or holding any Spiritual Preferment, and using any Spiritual Function: All which Doings, in the Committee’s Opinion, are such manifest Overt Acts, as subvert the Laws and Civil Government of this Kingdom.
Charges against Sir T. Jenner.
That the Committee also inquired into the Case of Sir Thomas Jenner, Knight, late One of the Justices of the Common Pleas: And, having, as yet, no other Evidence before them of any of his Offences, saving of such as is before set forth in the Case of Sir Robert Wright; they can only acquaint this House that it is manifest, that the said Sir Thomas Jenner joined with the other Judges, in declaring the King’s Power to dispense with the Laws made for the Kingdom’s Security: And that he was a Commissioner in the Fifth Commission for Causes Ecclesiastical, and sat and acted in Execution of those Powers; and took upon him to be One of those Three that were authorized by the said Fifth Commission to visit St. Mary Magdalene College in Oxford; and in Contempt of the known Laws of the Realm, committed most notorious Offences, in expelling the President and Fellows of the said College from their Benefits, and entering upon their Professions by open and notorious Force and Violences; and afterwards, joined in a Decree, at London, to make them for ever incapable of having any Preferments or Benefices Spiritual, and of using their function: All which, the Committee humbly conceive, do apparently involve the said Sir Thomas Jenner in the Subversion of the Laws and Government of this Kingdom.”
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