| the House, in suffering of Mr. Dolben to explain himself, when the Lords required it: in which case, he should not have complied, with out consulting the House, and taking their directions. And one gentleman spoke to this effect, just before the question; That though he was against giving them the Thanks of the House, yet he could not forbear mentioning one reason for it, that had been omitted by others, but was, in his opinion, stronger than any they offered; and that was, because he was sure they would have thanks no where else. March 22. by some encomiums on the Managers' performances. This matter was opposed by several gentlemen, who shewed a wide difference betwixt this case and that of my lord chancellor Nottingham, who had the Thanks of the House for maintaining their rights and privileges at a conference between the two Houses, in 1671, concerning the Commons' sole right of giving money; which was the more remarkable, because he was at first of opinion, that, in the particular point then in controversy, the Commons were in the wrong. But the House having determined against his opinion, and appointed him to be a Manager at the conferences, There was a division of the House, the Yeas he applied himself to the searching the re- were 175, Noes 116; and it was observable, cords; and with indefatigable labour and study, that in this question, all the Managers present discovered such precedents, and so strenuously in the House (except Mr. Dolben, whose sinsupported the Commons' right, that the Com-gular modesty was the more remarkable) voted mons thought it proper to make him that ho- for their having thanks. nourable acknowledgment. It was also urged, that there were Managers upon former trials, that had not the Thanks of the House: and though these gentlemen might have done their best in the discharge of the service the House required from them, yet they deserved not such distinction. Many declared, the Managers did not speak their sense, and that they could not approve what they had advanced, particularly, in justifying Resistance, and declaring against Passive Obedience and NonResistance, which was the doctrine of the Gos-cheverell. pel, and of the Church of England, and unalterably established by the Union of the two Kingdoms; and some of them denied the queen's hereditary right, affirming that she had only a parliamentary right; and that, as to the hereditary right, the Pretender had a much better title to the throne. That in these instances, they exceeded their commission, which could not be understood to allow them in any thing more, than speaking in defence of the Resistance at the Revolution, much less to meddle with the queen's title, which gave offence to many that heard them. Another reason against giving them Thanks, was, because of their railing and reviling language to the Doctor, unbecoming any counsel in a criminal prosecution, and much unbecoming Managers of the House of Commons. In which it was hard to say, whether they shewed more bitterness or inconsistency. ! A Message from the Lords by Mr. Rogers and Mr. Hiccocks, That the Lords had commanded them to acquaint this House, that their Lordships are now ready to give Judgment against Dr. Henry Sacheverell, if this House, with their Speaker, will come and demand the same. Resolved, That this House will demand Judgment of the Lords against Dr. Henry Sa. Some gentlemen spoke against demanding Judgment, laying down these positions: That the Lords could not give Judgment, unless the Commons demanded it: and that the Commons were at liberty, whether they would demand it or not, according to the reason given by the Commons, when they insisted to be present at the Trial of the earl of Strafford, as a committee of the whole House, That they held it fit and necessary, that all the members should be present at the Trial, to the end, every one might satisfy his own conscience, in the giving his vote to demand Judgment: and when that Trial was over, no Judgment was demanded. In the present case, they were against demanding Judgment, because of the precedent of this proceeding, which might be very dangerous to innocent men hereafter; for none could be safe, if mere innuendos, the most forced and strained constructions, and passages misapplied, should be admitted for evidence. They thought the Lords had made dangerous Ship-money, [see the Case, vol. 3, p. 826.] precedents, in taking upon them to declare the and the other matters concerning the liberty law and usage of parliament, without one pre and property of the subject, and the articles cedent for it, and directly contrary to many; ' against the lord keeper Finch,' [see his Case, for the case of Dr. Manwaring could not be a volume 4, p. 1.] See, also, in Grey's De- precedent, he submitting, and pleading guilty. bates, vol. 3, p. 283, the Thanks of the House The Lords also put the question of Guilty upon given by the Speaker, on the 8th of June, 1675, all the Articles together, which is such a com to sir John Robinson, a member for the city of plicated question, they could not give their votes London and lieutenant of the Tower, for hav-freely; and it was said to be a reason, why ing, like a worthy person and trusty commoner, done his duty in obeying the orders of 'the House.'" 4 Hatsell's Precedents, 292, note. See the more recent cases of impeach And because of their giving up the honour of ments. some of them did not vote: and the Lords, who are both jury and judges, were not under the obligation of an oath, or upon their honour. To these reasons, one other was added, That it would be a great reflection on this parliament, to have, in the same session, one of the ministers of the Church of England suffered to lie in prison without relief, upon his complaint, for reading her prayers; and to have another punished for preaching her doctrines. These arguments were urged against demanding Judgment, by those gentlemen that opposed the prosecution in every step of it; but some of those that had been forward in it, were now against demanding Judgment, out of great displeasure and indignation at the Judgment they heard was to be given; which they called a scandalous, ridiculous Judgment, and a reflection upon the proceeding; and therefore they were against demanding Judgment. And it is said, several of those gentlemen withdrew, and would not vote in this question. The House divided upon it; the Yeas were 165, Noes 117. March 23. Then the Commons, with their Speaker, went up to the bar of the House of Lords, and, by their Speaker, demanded Judgment against Dr. Henry Sacheverell: and being returned, Mr. Speaker reported, that he had, in the name of the knights, citizens, and burgesses, in parliament assembled, and of all the Commons of Great-Britain, demanded Judgment of the Lords against Dr. Henry Sacheverell, for High Crimes and Misdemeanors, for which he was impeached. It was resolved in the affirmative. 1. Because we conceive the law of the land is as much the rule of judicature in Parliament, as it is in the inferior courts of justice; and since, by the opinion of all the judges in all prosecutions, by information, or indictment, for writing or speaking, the particular words supposed to be criminal must be expressly specified in such information or indictment; and that this is the law of the land, confirmed by constant practice; we conceive that there is the same reason and justice for specifying in impeachments, the particular words supposed to be criminal; for otherwise, ont of Parliament, may, nevertheless, be cona person who is innocent and safe by the law, demned in Parliament: for we conceive, that words supposed criminal must be specified in some reasons of law and justice, why the informations and indictments, may be, that the party accused may certainly know his charge, and be thereby enabled to defend his innocence; that the jury may know it too, and be enabled thereby the better to apply the evidence given by the witnesses to the matter The Judgment was, That Henry Sache- selves may the better judge of the nature of of such charge; and that the judges themverell, Doctor in Divinity, shall be, and is the crime, and of a punishment adequate to hereby enjoined not to preach during the it, which, in cases of misdemeanor, which term of three years next ensuing. That Dr. Henry Sacheverell's two printed Ser-tremely vary, according to the heinousness of are indefinite and innumerable, must exmons, referred to by the Impeachment of the the offence; and finally, that the House of House of Commons, shall be burnt before Lords, upon complaint to them, may also the Royal-Exchange, in London, between judge whether the fine, which is usually one the hours of one and two of the clock, on the of the punishments for misdemeanors, does not 27th of this instant March, by the hands of exceed the demerit, especially since by the the common hanginan, in the presence of Bill of Rights, exorbitant fines are declared to the lord-mayor, and the two sheriffs of Lon- be illegal; which reasons seem to be fully as strong in the case of impeachments, as in inwords are as necessary to enable the Lords to dictments and informations; for the particular determine uprightly, and impartially, as the fence of the accused here, as in the courts jury or judges, and as necessary for the debelow; and if there was to be a difference, it seems more necessary in this high court; for the weightier the prosecution is, the more need has an unfortunate man of indulgence, and all lawful favour; and surely, there cannot be a heavier load upon any man, than an accusation of all the Commons of GreatBritain. 'don and Middlesex.' A LIST of the LORDS, who protested against some Proceedings, in relation to the Case of Dr. Henry Sacheverell, in the House of Peers; with their Lordships' Reasons for entering their Protestations. Die Martis, 14 Martii, 1709. The question was put, That by the law and usage of Parliament in prosecutions, by Impeachments for High Crimes and Misdemeanors, by writing or speaking, the particular words supposed to be criminal are not necessary to be expressly specified in such impeachments.* On the 11th of March the Lords resolve, "That they will proceed to the determination of the Impeachment according to the law of the land, and the law and usage of Parliament ;" and direct the clerks. On the 13th they appoint a committee, to search precedents upon this subject, and on the 14th the report was made. 2. We do not remember any precedent insisted on for the maintenance of this resolution, save only the Case of Dr. Manwaring, which we conceive could not warrant this resolution. For, 1. The words charged upon bim by the Commons' Declaration, were not compared with the Sermons, though it was desired; and consequently, no lord could say, they were not the words of the Sermon; and therefore, upon such uncertainty, we conceive, we could not ground a positive resolution. 2. The Charge upon him, taken out of his Sermon, on the 4th of May, 1628, seems to be the very words by him spoke; for they were attested by ear witnesses, who surely never were, or could be admitted to attest their own conjectures of the scope of a Sermon, and not specify the very words, for that would be to make the witnesses to be the judges. 3. Besides, in such a case as this, where the party did not insist on any legal and just exceptions, of which he might have taken advantage, if he had made his defence, which he did not, but submitted and begged pardon; this ought not to be looked upon as a precedent, or authority, to justify the illegality of the form of that impeachment. 3. But although this precedent was full and express to the point resolved, we humbly con ceive, that one precedent is not sufficient to support a law and custom of parliament; nor consequently, a resolution declaring it; for surely there is a great difference between a single instance, and a law and custom; espe cially, 4. Since we conceive, that in all the precedents, at least all that have appeared to us, for four hundred years, of the prosecutions in parliament, the particular words charged as criminal, have been constantly expressed in the Articles, or Declarations of Impeachment. Exilium Hugonis le de Spencer Patris et Filii. (Ed. 2.) The 1st Article was for making Bill in writing, the tenor whereof was particularly set forth. William de la Pool, (26 H. 8) 6 Art. was for words spoken by him, sitting in the council in the Star-Chamber, viz. That he said, he had a place in the council-house of the French king, as he had here; and was as well trusted as he was here, and could remove from the French king the privyest man of his council, if he would. Lord Finch. The opinions he delivered are set forth in hac verba, as also the times when he delivered them. (1640. Art. 4, 5.) Another opinion delivered by him in the Exchequer-Chamber, and western circuit, is set down in his express words. (Art. 7.) Dr. Cosens. He is charged with words, delivered in a Sermon at Durham. The words were these, the reformers, &c. (1640. Art. 11.) Charges him with words in like manner. The words were these, The King, &c. (Art. 19.) Judge Berkley. The words charged upon him are expressly mentioned. (1641. Art. 1.) That he subscribed an opinion, in hæc verba. (Art. 4.) Which are specified. (Art. 5.) The matter therein charged, though of record, was copied and delivered with the Aricles. (Art. 6.) The words spoken, and the place, expressly set forth. (Art. 7, 8.) Judge Crawley. For subscribing and giving opinions, set forth in hæc verby. (1641. Art. 1, 2, 3.) Herbert. For exhibiting Articles against the Five Members; (1641,) which Articles follow, in these words, &c. Thirteen Bishops impeached (1641) for making and promulging, in 1640. several Constitutions and Canons, contrary to the king's prerogative, &c. They demurred, because the charge was general; but receded from this demur, because it appeared to be particular. Earl Strafford. (1641. Art. 2.) Expresses the words spoken by him, and the time. (Art. 4, 20, 21, 22.) Express the very words spoken by him. (Art. 23, 24, 25, 26, 27.) Is in like manner, with an innuendo of his meaning. Archbishop Laud. (1642.) Express the words spoken by him. (Art. 1, 4, 10, 2) Expresses the words spoken by him, and the time and place. So necessary did the Long Parliament itself think it to pursue the forms of law in all their prosecutions.* Upon the whole, therefore, we conceive, that so great a number of precedents is sufficient to out-weigh the single instance of Dr. Manwaring's case, how apposite soever it might seem to be to the present case, which, for the reasons which we have mentioned, is far from being plain and clear, or having the full authority of a precedent: and the law and custom of parliament, as we conceive, is to be determined by constant course and practice, and not one precedent, occasioned by such odious doctrines as those of Dr. Manwaring's: nor can the contrary assertion to the abovesaid resolution be of any ill consequence to impeachments by the Commons; because it is easy for them to specify the words which offend them, but extremely difficult for the accused to defend himself, without knowing them: and as all who are charged criminally bave leave to make their defence, so they should also have allowed them all lawful means for it. Jo. Ebor, Scarsdale, Anglesey, Abingdon, Wey mouth, Conway, Willoughby, Br. Guil ford, H. London, Leeds, Sussex, Nottingham, N. Duresme, Rochester, Scarborough, W. Cestriens. Osborne, Guernsey, Lempster, Thanet, Denbigh, Plymouth, Northampton, North and Grey, Craven, R. Ferrers, Beaufort, Yarmouth, Berkshire, Jersey, Stawell, Howard. Die Jovis, 16 Martii, 1709. The order of the 14th instant being read, for taking into consideration the Impeachment of Dr. Henry Sacheverell, Article by Article: and it being moved to declare, that the Commons had made good the first Article against Dr. Henry Sacheverell; after a long debate thereupon, this question was proposed; That the Commons have made good their first Article of Impeachment against Henry Sacheverell, Doc See these Cases in this Collection. tor in Divinity. And a further debate thereupon, This question was put; Whether this question shall be now put? It was resolved in the affirmative. Dissentient, Because we humbly conceive, there are no reflections therein contained on the memory of the late king William, nor the Revolution; and that there is no offence charged therein upon Dr. Sacheverell, against any known law of the land. —Jo. Ebor, Wemys, Suffolk, Shrewsbury, Poulett, Beaufort, Denbigh, Stawell, Yarmouth, R. Ferrers, N. Duresme, Scarsdale, Howard, Berkley, Str., Say and Sele, W. Cestriens. Willoughby, Br., Ormond, Anglesea, Rochester, Buckingham, Craven, Weymouth, Sussex, Lexington, Osborne, Nortbesk, Tho. Roffen., Northampton, Mar, Leigh, Weston, Chandos, Guernsey, Hamilton, Berkshire, Thanet, Scarborough, Nottingham, North and Grey, Conway, Leominster, Abingdon, Geo. Bath and Wells, Plymouth, Guilford, H. London, Dartmouth, Haversham, Leeds. Then the main question was put; That the Commons have made good their first Article of Impeachment against Henry Sacheverell, Doctor in Divinity. It was resolved in the affirmative. Leigh, Anglesea, Craven, Dartmouth, Die Sabbati, 18 Martii, 1710. It is ordered by the Lords Spiritual and Temporal in Parliament assembled, that the question to be put to each lord in Westminster-hall shall be, Is Henry Sacheverell, Doctor in Divinity, guilty of High Crimes and Misdemeanors, charged on him by the Impeachment of the House of Commons? And the Answer thereunto shall be, Guilty, or Not Guilty, only. Dissentient, Buckingham, Hamilton, Mar, Lexington, Dartmouth, Northesk, Jo. 1. Because we do humbly conceive, that the obliging every lord to answer generally, Guilty, or Not Guilty, to a question containing all the Articles of this Impeachment, is a kind of tacking upon ourselves,* by an unnecessary joining of matters of a different nature, and subjecting them to one and the same determination; and consequently may prejudice the right every peer has to give a free affirmative, or negative; since whoever thinks Dr. Sacheverell guilty of one part, and innocent of the other, will be obliged either to approve what he condemns, or condemn what he approves. 2. We do humbly conceive, there is at least a possibility, that though a majority of the House, if admitted to vote to the Articles seDissentient, Buckingham, Shrewsbury, parately, may think him innocent upon each Dartmouth, Guilford, N. Duresme, Wil-Article; yet, by this method of a general loughby, Br., Haversham, Northesk, Answer, he may be condemned of all; which seems not to be consistent with the usual method of justice in this House. Mar. Because by the laws of the land, the laws of 3. We do humbly conceive, that since the parliament, and the inherent right of peerage, Judgment of the House in this case ought to every peer is to judge for himself, both of the be a declaration of the law, the condition of the fact, as well as of the law, and cannot be pre-people will be most miserable, to have punishcluded by any majority; which indeed must determine the case in respect of the criminal; but never did nor can preclude any lord from voting the party accused Guilty or Not Guilty of the fact, as well as of the crime of such fact. Sussex, Northampton, Yarmouth, Scarborough, W. Cestriens. North and Grey, Thanet, Denbigh, Weymouth, Stawell, Conway, Howard, Geo. Bath and Wells, Guernsey, Craven, Leeds, Beaufort, Scarsdale, Rochester, Jersey, R. Ferrers, Plymouth, Osborne, Leigh, Abingdon, Ashburnham. To the questions upon the second, third, and fourth Articles, we dissent, for the same reason as is given against the question upon the first. Buckingham, Berkshire, Nottingham, Rochester, Weymouth, Howard, H. London, Haversham, Ormond, Willoughby, Br., Guernsey, Jo. Ebor, N. Duresme, Hamilton, Sussex, Scarsdale, Stawell, Poulett, Abingdon, Conway, Osborne, Weston, Guilford, Lexington, W. Cestriens. Geo. Bath and Wells, Beaufort, Denbigh, Yarmouth, Jersey, Thanet, Plymouth, Northampton, VOL. XV. ment inflicted for High Crimes and Misdemeanors, and not to have a possibility of inMisdemeanors thereby punished are; for the forming themselves what the High Crimes and people's only guide is the law; and they can never be guided by what they can never be informed of: And we do humbly conceive, that this uncertainty being in the case of a clergyman, for preaching, it may possibly create some fear in good men, when they preach some doctrines of the Church of England, particu larly that of Non-resistance; and may be made use of by ill ones, as an excuse for the Leeds, Nottingham, Stawell, Wey- * This I suppose was designed as a sneer upon the opposition which the Lords of what was called the Low Church Party, had in the case of the Bill against Occasional Conformity, made to the practice of tacking. D minster, H. London, R. Ferrers, Pou- Die Lunæ, 20 Martii, 1710. Then his lordship put the question, begin ning at the junior baron first, as follows: Is Dr. Henry Sacheverell guilty of High Crimes, and Misdemeanors, charged upon him by the Impeachment of the House of Commons? And having asked every lord present, and they having declared, Guilty, or, Not Guilty, his lordship having cast up the Votes, declared him Guilty. THE TRIAL. FIRST DAY.-February 27. ABOUT eleven of the clock the Lords came from their own House into the Court erected in Westminster-hall, for the Trial of Henry Sacheverell, Doctor of Divinity, in the manner following: The Lord Chancellor's gentlemen-attendants, two and two.-The Clerks of the House of Lords, with the two Clerks of the Crown in the Courts of Chancery and King's Bench.the Judges.-The Peers eldest Sons, and Peers The Masters in Chancery, two and two.-Then Minors, two and two.-The yeoman-usher of the House. The gentleman-usher of the black rod.-Then the Peers two and two, beginning with the youngest barons.-The Serjeant at Arms, with his mace. Then one of the heralds.Then the Lord Chancellor alone. The Lords being seated in the place for that Dissentient, Sussex, Thanet, Nottingham, Commons in a committee of the whole House purpose prepared in Westminster-hall, and the Craven, Northesk, North and Grey, being in the seats prepared for them, and the Leigh, Jersey, Hamilton, Beaufort, Managers for the House being at their lordWeston, Ormond, Berkshire, N. Du-ships' bar, the serjeant at arms made proclamaresme, Shrewsbury, Scarborough, tions as follow: Leeds, Yarmouth, Jo. Ebor, Leominster, Northampton, Willoughby, Br., Abingdon, Poulett, H. London, Guernsey, Geo. Bath and Wells, Say and Sele, Osborne, Plymouth, Chandos, W. Cestriens. Buckingham, Rochester, Mar, Weymouth, Guilford, Conway, Anglesea, Scarsdale, Dartmouth, Denbigh, Howard, Tho. Roffen, Berkeley, Str., Stawell, Lexington. Die Martis, 21 Martii, 1710. Ordered, That the Judgment to be passed in the Case of Dr. Henry Sacheverell shall be, That he be enjoined not to preach during the term of three years next ensuing: That his two printed Sermons, referred to by the Impeachment of the House of Commons, shall be burnt before the Royal Exchange in London, between the hours of aud on the day of by the hands of the common hangman, in the presence of the lord mayor, and the two sheriffs of London and Middlesex. Dissentient, Jo. Ebor, Scarsdale, Northampton, Craven, Howard, North and Grey, Scarborough, N. Duresme, Weymouth, Geo. Bath and Wells, Guilford, Buck ingham, Berkshire, Abingdon, Conway, Yarmouth, H. London, Plymouth, Tho. Roffen, Guernsey, Leominster, Denbigh, Nottingham, Thanet, Osborne, Beaufort, Anglesea, Sussex, R. Fer rers, Leigh, Poulett, Ashburnham. lady the queen doth strictly charge and comSerjeant at Arms. O yes! Our sovereign mand all manner of persons to keep silence, upon pain of imprisonment. rell, Doctor in Divinity, come forth, save thee Serjeant at Arms. O yes! Henry Sacheveand thy bail, or thou forfeitest thy recognizance. Then Dr. Henry Sacheverell came to the bar and kneeled; his Counsel, viz. sir Simon Harcourt, Mr. Dodd, Mr. Phipps, Mr. Dee, and Dr. Henchman, standing near him at the bar; and rising again by direction of the Lord Chancellor, the serjeant at arms again made proclamation as follows: Serjeant at Arms. O yes! Whereas a Charge of High Crimes and Misdemeanors has been exhibited by the House of Commons, in the name of themselves and all the Commons of Great Britain, against Henry Sacheverell Doctor in Divinity; all persons concerned are to take notice that he now stands upon his Trial, and they may come forth, in order to make good the said Charge. Lord Chancellor. (Lord Cowper.) Dr. Sacheverell, it is needless to give you any direc tions concerning your behaviour during the time of your Trial, or the ordering your Defence, because the Lords have not only allowed, but assigned you the Counsel you desired, some both of the civil and common law, who will be able to direct and advise you, not only in the substance, but form of your Defence. The Lords have also made an Order for summoning all such Witnesses as you have propounded to appear for you. And that you might be the better able to provide for your Defence, you have had your liberty on the first application for it, and giving security for your appearance; |