though by several originals. But it may be said, That in a Writ of Error in this kind, the foundation is destroyed, and no such record is

3. In all the precedents shewed in the Common Pleas, or in any that can be shewed in the King's Bench, upon discharging the prisoner by Habeas Corpus, nothing can be shew-left. ed of quashing the orders or decrees of that Court, that made the wrong commitment.

But as to that in Drury's case, 8 Rep. an outlawry issued, and process of Capias upon 4. It is manifest, where the King's Bench the outlawry, the sheriff returned, non est inbath, upon Habeas Corpus, discharged a pri- ventus; and the same day the party came into soner committed by the Chancery, the person Court and demanded Oyer of the exigent which hath been again re-committed for the same was the warrant of the outlawry; and shewed cause by the Chancery, and re-delivered by the the exigent to be altogether uncertain and inKing's Bench; but no quashing of the Chan-sufficient, and consequently the outlawry decery order for commitment ever heard of. pending upon it to be null. And the Court [Glanvill's C. Moore f. 836.] gave judgment accordingly, though the record of the outlawry were never reversed by error; which differs not from this case, where the order of commitment is judicially declared illegal, though not quashed or reversed by error, 6. It is known, That if a man recover in and consequently whatever depends upon it, assise, and after in a re-disseisin, if the first as the fine and commitment doth, and the judgment be reversed in the assise, the judg-outlawry in the former case was more the king's ment in the redisseisin is also reversed. So if a man recover in waste, and damages given, for which debt is brought (especially if the first judgment be reversed before execution) it destroys the process for the damages in debt,

5. In such cases of re-commitment, the party hath other and proper remedy besides a new Habeas Corpus; of which I shall not speak

now.

interest, than the fine in this.

1

The Chief Justice delivered the Opinion of the Court, and accordingly the Prisoners were discharged.

232. Proceedings in the House of Commons against the Duke of LAUDERDALE*, 25 CHARLES II. A. D. 1674.

THE Commons' House of King Charles the no sooner out of his mouth but the usher of the second's Long Parliament had in their 11th

session manifested much discontent. They some years in the Tower of London, in Porthad devoted much attention to the considera-land Castle, and in other prisons, till he was tion of Grievances. On the 31st of October, 1673, they resolved: "That this house, considering the present condition of the nation, will not take into any farther debate, or consideration, any Aid, or Supply, or Charge upon the subject, before the times of payment of the eighteen months Assessment, &c. granted last session, be expired: unless it shall appear, that the obstinacy of the Dutch shall render it necessary; nor before this kingdom be effectually secured from the dangers of Popery, and popish counsels and counsellors, and the other present Grievances be redressed."

set at liberty by those who called bone the king. He was very learned, not only in Latin, in which he was a master, but in Greek and Hebrew. He was a man, (as the duke of Buckingham called him to me) of a blundering understanding. He was haughty beyond expression, abject to those he saw he must stoop to, but imperious to all others. He had a violence of passion, which carried him often to fits like madness, in which he had no temper. He was the coldest friend, and the violentest enemy I ever knew. He at first seemed to despise wealth; but he delivered himself up afOn the 4th of November, after the Speaker terwards to luxury and sensuality. He was in (Seymour, against whom in the preceding week his principles much against Popery and arbi several objections and reproaches had been al- trary government; and yet, by a fatal train of leged in the house by different members) who passions and interests, he made way for the came not to the house till 10 o'clock, though the former, and had almost established the latter; house was the day before adjourned to eight, and whereas some, by a smooth deportment, had been called to the Chair by a great voice, made the first beginnings of tyranny less dishe at last took the chair; and then sir Robert cernible and unacceptable; he, by the fury of Thomas moved to take into his consideration his behaviour, heightened the severity of his mithe business of evil counsellors,' as a griev-nistry, which was more like the cruelty of an inance,' hinted the other day, and would name one, 'the duke of Lauderdale.' The word was

"The duke of Lauderdale had been for many years a zealous Covenanter: but in 1647 he turned to the king's interest; and had continued a prisoner all the while after Worcester fight, where he was taken. He was kept for

VOL. VI.

quisition than the legality of justice. With all this, he was a Presbyterian, and retained his aversion to king Charles 1, and his party, to his death [which happened in 1682."] Burnet. Many years after his death there was published a translation by him of Virgil's Eneid, which had been shewn in MS. to Dryden, and from which he has borrowed many lines.

3 U

black rod knocked at the door, and the | have advised these things, and, when that is serjeant gave notice of it to the Speaker, done, he perhaps will name one. who forbade sir Robert proceeding any farther.*

The next session commenced on the 7th of January 1674, and on the 12th the House of Commous resolved, "That this house will proceed, in the first place, to have Grievances effectually redressed, the Protestant Religion, Liberties, and Properties, effectually secured, to suppress Popery, and to remove persons and Counsellors, popishly affected, or otherwise obnoxious, or dangerous to the government." 2. "That the humble and hearty Thanks of this house be returned to his majesty for his gracious Promises and Assurances in his last Speech, and for those Acts which he has done since the last prorogation, towards the suppressing and discountenancing of Popery; and that he would please to give order for the Militia of London, Westminster, and Middlesex, to be ready at an hour's warning, and the other Militia of the kingdom at a day's warning, for the suppressing any tumultuous meeting of Papists, or other malcontent persons whatsoever; and that the house will go with this Address to his majesty in a body."

On the next day the following Proceedings took place.

Mr. Stockdale. Many Grievances have been represented; the way is now, how you will redress your grievances; the last session produced many good votes as to that, but we were prorogued; and to the intent that that may not happen again, consider that the same Counsellors are interposing, and interpreting our intentions may procure the same prorogation; therefore moves to begin with the last part of the vote first, viz. Evil Counsellors.' You cannot have Grievances effectually redressed, without removing those that

Sir Robert Thomas. We have a great many Grievances; hazard of Religion, Counsellors advising the king to take away religion and properties; must name one; (by the bye, the Black Rod being called in by you, Mr. Speaker, the last session, before he knocked, he could not do it then) a person that has contributed as much to our misfortunes as any man; the duke of Lauderdale. -You will have proofs of his advice by four of your members; viz. * Your majesty is bound in honour to justify your Edicts; I wonder at the confidence of any person to deny your majesty's Edicts, and those persons that do, I think, deserve ta be most severely punished t.' The act of the Militia in Scotland, which forces are to be in a readiness to be called to march into England or Ireland, upon any service where the honour, authority, or greatness of the king shall be concerned.' Other gentlemen know more: he has great forces in readiness and pay, and for no other end, he believes, than to awe us.

Sir Nich. Carew. We should never have Grievances, but by such Counsellors:' the duke is at the head of a great army in Scot land; desires that we may move the king, that he may keep there and return no more inte England.

Sir T. Littleton. The words are ready, and desires you will order the gentlemen that heard them, to declare them.

Sir R. Thomas names sir Scroope Howe, Mr. Man, and Mr. Robert Pierpoint, who heard the words, and lord St. John."

Lord St. John. The last session, February he was called to do it, but then refused, because there was a dispute then betwixt the duke of Lauderdale and himself; Mr. Howe, then sick, being concerned for Mr. Whalley, desired him to go hear the business at the Council, where Mr. Whalley (a justice of peace in Notting hamshire) was summoned, who had committed a preacher contrary to the Declaration, Whalley was to answer the contempt, the parson had no licence to preach, but entry was made of it in the Secretary's Book; a law bound Whalley, and a Declaration did not bind him. Lauderdale then spoke the words mentioned by sir Robert Thomas, that be wondered at the words and said, 'Lauderdale may be questioned in parliament.' Some members

"The Address (agreed to the day before) was to have been presented this afternoon; but the king disappointed all by coming unexpectedly to the House of Lords, and ordering the Commons to attend him. It happened that the Speaker and the usher both met at the door of the House of Commons, and the Speaker being got within the house, some of the members suddenly shut the door, and cried out To the Chair! To the Chair!' while others eried, The Black Rod is at the door. The Speaker was immediately hurried to the chair, and then it was moved, 1. That our Alliance with France was a Grievance. 2. That the Evil Counsellors about the king were a Grier-first place." And 3. That the duke of Lauderdale was a Grievance, and not fit to be trusted or employed in any office or place of trust.' Upon which there was a general cry, To the Question! To the Question! But the Black Rod knocking earnestly at the door, the Speaker leaped out of the chair, and the house rose in great confusion." Echard.

ance.

The expressions mentioned in the Journal are, "Your majesty's Edicts ought to be obeyed; for your majesty's Edicts are equal with the laws, and ought to be observed in the

A gentleman, there present, informed me, that the king should say to Mr. Penyston Whalley (the person then before the council) I wonder that you should withstand my Declaration. I would have you know, that I will be obeyed according to my interpretation of the law, and not yours; and if you will not I shall put in those that will.'" Grey.

being present, Lauderdale spoke as before, none else of the Council spoke, and all were bid to withdraw.

Sir Scroope Howe averred the words as before; Mr. Pierpoint, and Mr. Man likewise.

Sir T. Littleton. Now you are possessed of this, he shall offer his sense; the last session, we were cut off in the beginning; in Scotland, an army is raised by this great duke; though by act of parliament, yet his power is great, and the army under his power: it is in vain to act here, without converting our thoughts to Scotland. Pray God! this be not elsewhere: a man, so principled and arbitrary! You had need look about you; needs say nothing to aggravate, the bare thing aggravates itself; a cloud hangs over us, and it is high time it was scattered; it has made Counsellors in England so much the bolder; moves 'to address the king to exclude the duke of Lauderdale from his Councils in England;' keep him from councils here, and you may shake his authority in Scotland: he is in all respects a commoner, and so we cannot clash with the Lords in point of trial; there are 20,000 foot, and 2,000 horse, ready in Scotland, and no colour for it; a man of such principles is not fit to be trusted with such an army, nor with our councils, and, without any more ceremony, would address the king, as he is a commoner.

is raised to march into England, &c. or for any other cause wherein the king's honour or greatness may be concerned;' but the greatness of the king consists in governing a free people ; the parliament supplied and brought him from banishment, and, because the king would hearken to their advice, they must be prorogued, the juncture of their time not being fit for the fleet against Holland; they suppose we would give, and, if not, the necessity must justify raising of money: what benefit had we but fruitless battles at sea, and engaging us, by the French, with his allies? The king was persuaded that the parliament would not assist his interest, but doubts not but time will demonstrate the contrary: when we would have reached these men, we were prorogued, and now there is a necessity of giving money; the king's credit lost, the people poor, jealousies great, and all might have been remedied by our meeting.-Lauderdale asserted Edicts superior to law,' and it was spoken in the presence of the king and council; no greater argument, though some, he doubts not, have done it privately, but he publicly: Hamilton's book asserts the king's authority of raising Money without Parliament, and it was countenanced by Lauderdale in 1667. When lord Rothes was commissioner, then was the foundation of this army, but it came not to maturity till 1669, when Lauderdale was commissioner; it was then kept on foot, and boasted of; it is not unknown at what vast greatness this person has lived, Mr. Dalmahoy has heard the duke of Lau- thereby bringing the king into necessity, and derdale deny the words; he was not in Scot-disobliging the house, that we should not supland when the Act about the Militia was made; he knows not who was then commissioner.

Sir C. Harbord has a double charge against him, that of the army in Scotland, and his words at the Council here. You may miss of trial, but an Act may reach him.

ply: Lauderdale sued out the king's pardon; a new trick our great men have gotten, fearing Mr. Powle supposes that every man is sensi- our enquiry, and would arm themselves against ble of a pernicious design to alter the govern- us with the king's pardon; let this be consiment, and these Counsellors have brought us dered and weighed well: less crimes than these to the brink of destruction; we have a gra- have brought men to the scaffold, but the cious prince, but the great design was, first to temper of this house is not desirous of blood. abuse the king, and then to oppress the people, The 5th R. 2. counsellors were removed with fearing his good disposition to us; the Triple out cause: the people only spoke ill of them. League was made to check a great prince; 11 R. 2. the duke of Ireland, and sir John to ruin the Protestant religion was the design, Crosby were impeached; the people spoke and, without Money, that was not to be car- ill of them, 20 Hen. 6. the lord Dudley for ried on, which money was given for the main- the same cause: It may be the case of peers taining the Triple Alliance; and then more of England, and this upon no other article money was got, by stopping the Exchequer, to but merely the people speaking ill of them. 3d the undoing of many hundreds of persons.-C. 1. remonstrance against the duke of Bucks, Then a Declaration for the ease of tender consciences, and, under pretence of Toleration, suspending by it all ecclesiastical laws, and, in consequence, laying all laws aside; upon the declaration of war against Holland, armies were raised, and popish officers at the head of them, and in places of civil authorities, honours, and dignities; then Popish officers are sent over into Ireland, Papists put into trust and office there; then in Scotland, an army

The Duke was at this time only a Peer of Scotland. But in June following he was created an English peer, by the title of earl of Guilford.

bishop Neale, arch-bishop Laud, to be removed as evil counsellors: moves, "That this great person, the duke of Lauderdale, may for ever be removed from the king's presence."

Mr. Secretary Coventry. To condemn a man, without hearing, he never knew the precedent before in this house.

Mr. Stockdale. If for taking away blood, witnesses must be sworn; but to remove this man you have testimony sufficient to ground an Address to the king; so notorious a man! Sir Rob. Carr. A person was accused, and you gave a day : moves to consider of it.

Col. Birch. It is true, there was a person had a day, but he had no pardon, and he would

have Lauderdale sent where 'Edicts' are in fashion.

Sir John Duncombe. It is hard to condemn a man without being heard; removed from the king's presence' is as hard a judgment as a man can have: thinks it worthy consideration to give him a day.

Sir John Trevor. If you proceed merely to suspend him from the king's Councils,' you may do it, but if from the king's presence,' where no manner of proof is taken, you ought to give him a day; by way of confiscation, or attainder, you give time, but as to removal from counsels,' you need give none.

Mr. Howe. He was the most active person to bring the late king to his murder: he was solicitor from Scotland to bring the late king to the block, and to destroy this king by giving ill advice to him.

:

the Scotch Act of Militia plainly shows it: It puts the king in power plainly to alter any thing in Church or State, and so, by this army, popery may be set up: not content to keep their law in Scotland, but printed here by authority; it was done this time twelvemonth, when the question was, whether all your laws must be set aside; and therefore is for secluding him for ever from the king's presence, and an Act of banishment.

Col. Strangways would have̟ the words obnoxious and dangerous' retained in the vote: our Saviour pardoned them that persecuted him, but where a man, by after-actions, has done ill, his righteousness shall be forgotten, when transgressing de novo: he abhors the crime; but consider your case; ⚫ sequestering him from the king's presence and the kingdom :' common fame from this house is a greater ground for accusation than thought to be.

Mr. Garroway has often heard that this man brought the declaration from Scotland to Sir R. Temple does not remember that, by bring the late king to the block, and those peo- | any of the precedents, men were sent for, and ple had a horror for the fact would have him time given them to answer; this vote is with come and answer it here, and all that are con- that moderation, to remove' only: would add cerned with him he has heard of one Murray something, that it may have more strength, kept in the Tower, by the instigation of Lau- viz. as a man found by this house to be danderdale, for complaining against him; these are gerous.' Has heard of his being no less arbiviolences, when no writs of Habeas Corpus cantary in Scotland than here; to have made himbe had; and would send to the Gatehouse, self a perpetual commissioner there. where he nows stands committed, for the Mittimus: you will find it of his own making, and illegal agrees to the Address for removing him;' and would have a Bill to make it treason if ever he return bither again.

Mr. Sec. Coventry. If he be guilty of this horrid crime alledged, will not defend him; neither will he condemn him without proof.

Sir John Birkenhead. The duke of Ireland, Oxford, and Somerset, had a day assigned them -No inan has been banished the king's presence on this formality, though you cannot have greater evidence; it may be he may confess it; many things are law in Scotland, and not so here; would not have a precedent to reach every body: assign him a day, and you will tread more safely, and do him right, and no man wrong.

Sir Thomas Littleton has heard a great man in the Rump, and a counsellor then, say, • That Lauderdale did solicit that bloody KirkDeclaration against the king;' does not name the person, because desired not to do it: would bave him removed from the king's person and counsels for ever. This thing is not so hard, he at a great distance, and great affairs in Scotland to attend, and so he may excuse himself from coming, and perhaps when come we may not be sitting, and if he will come, at any time, he may be tried by parliament.

Sir John Monson hears it said, that every subject has a right to come into the king's presence;' therefore to prevent that, when we are up, would have a Bill, as well as an Address now.

Sir Eliab Harvey would have a Bill_ordered to make it treason for him to return to England.

Mr. Waller thinks as bad of this case as any man here; If so much had been against lord Strafford, would not have theu been against his Impeachment.

Sir W. Coventry. The bill as proposed, is contradictory to what you have spoken of removing him from the king's presence.' The king may remove him, by his own power, from his presence,' at the request of any private man, and when it is done, it is well done: every subject has a right of petitioning the king, though he be not of his bed-chamber of council; but it is not so easy a thing to exclude any man out of the kingdom.' To make a precedent to exclude a man the kingdom,' without hearing him, cannot agree to it.

Mr. Boscawen desires that lord Clarendon's Bill of Banishinent may not be a precedent : that was done somewhat hastily.

Sir T. Clarges would have a Bill, to forbid him coming within 12 miles of the court, wher ever the king shall be: will consent to that and no farther.

Resolved nem. con. "That an Address be

Col. Sandys. Since he has heard that Lauderdale had some part in the king's murder,« presented to his majesty to remove the duke that has raised him; and would have him as much sequestered from the world, as from the king, and would have a Bill of Attainder against him.'

Mr. Sacheverell fears that this lord has not lost his old evil principles, but improved them ;

"of Lauderdale from all his employments, and "from his presence and councils, for ever; be"ing a person obnoxious and dangerous to the government."

"

233. Proceedings in the House of Commons against the Duke of BUCKINGHAM: 25 CHARLES II. A. D. 1674.