having taken the same into consideration, agreed not to proceed on the Trial of the said Earl at the time appointed, but to proceed farther on the said Trial on the 28th at eleven in the forenoon." "To this must be added, that as the Commons only are masters of the evidence, and as upon that account they are best able to determine, what to charge first, and what next; so they are most proper to determine, in what method to proceed for the advantage of the prosecution, in the event of which all the Commons of Great Britain are so highly concerned. June 27. The lord Morpeth was sent from the Commons to desire a Conference with the Lords, which their Lordships having agreed to, and appointed the same presently in the painted chamber, the Managers of the Commons went thither and delivered to the Lords, the Commons' Reasons against their Lordships' Reso-scribe to the Commons those particular Arlutions. "To which they further add, That they see no reason but that your lordships may as well invert the whole order of the Articles, as pre ticles on which they are first to proceed, which Re-in the facts and evidence, as is by no means will necessarily produce such a confusion, both in which the Commons think this affair ought consistent with that clearness and perspicuity, The The Commons' Reasons against the Lords' solution communicated at a Conference.] same day, the duke of Kingston, Lord Privy Seal, reported to the House of Lords, that they had been at the conference, and met Mr. Carter and other Managers for the Commons, who delivered to their Lordships a Paper, as follows: “The Commons having taken into their consideration your lordships' Resolution communicated to their Managers relating to the proceedings on the Trial of Robert earl of Oxford and earl Mortimer, and being desirous, as far as in them lies, to maintain a good correspondence with your lordships, have desired this Conference: and have commanded us to acquaint your lordships, that they conceive it to be the undoubted right of the Commons, to impeach a peer, either for High Treason, or for high crimes and misdemeanors, or, if they see occasion, to mix both the one and the other in the same accusation. "The Impeachment preferred against Robert earl of Oxford and earl Mortimer is one continued accusation, consisting of high crimes and misdemeanors, and also of charges of high treason. The facts on which the Articles preceding those of high treason are grounded, are laid together in in order of time, and follow one another successively, in the manner they were committed. As the Commons thought this the most natural method for exhibiting the several Articles against the said earl, they were of opinion, that they should proceed in the proof of these several facts, after the same method; since it is manifest that in laying open the course of such a wicked administration, the preceding parts of it give light to those which follow; and that the proof of the several Articles of high crimes and misdemeanors, would naturally lead to the proof of those of high treason. "Your lordships received these several Articles of Impeachment, without making any exception against the form in which they were exhibited. The said earl made his Answer to them in the same order, and has no where insisted to be tried in any other method; so that the Commons are surprised to find a stop put to their prosecution by an objection, which has never been started by the said earl, and which your lordships had given them so little reason so expect, to appear. dents, do find divers precedents of Impeach"The Commons, upon examining Precements for high treason, and other high crimes and misdemeanors, in the same accusation; and do not find that the Lords ever objected to such proceeding, or ever gave judgment upon any particular Article of Impeachment, before the Commons had gone through, aud concluded their evidence upon all the Articles, or so many of them as they thought fit; and the Commons are at as great a loss to conceive what arguments, or precedents, can be brought to support the Resolution of your lordships, to give judgment upon one part of the same accusation, reserving the other part for a subsequent trial, as they are to know what your lordships mean, by admitting the Commons to proceed upon the Articles of high crimes and misdemeanors, after the judgment is given upon the articles for high treason, supposing the judgment proper for high treason should be given against the said earl. "For these reasons, the Commons assert it as their undoubted right, to proceed on the Trial of Robert earl of Oxford and earl Mortimer, after the method in which their managers were proceeding, when interrupted by your lordships' Resolution." The Lords resolve to adhere to their former Resolution.] The Lords having, the same afternoon, taken into consideration what was offered to them by the Commons at the said Conference, it was moved, and the question put, "That their lordships do adhere to their Resolution, not to admit the Commons to proceed to make good the Articles for high crimes and misdemeanors, till judgment be first given upon the Articles for high treason;" which was carried in the affirmative. Then another motion was made, and the question put, "That the Lords do give to the Commons the Reasons for their lordships adhering to their former Resolution;" This was also carried in the affirmative and a Committee of lords was appointed to draw up the said Reasons; notwithstanding the opposition made thereto by the lord Harcourt, and other peers; who 2. urged, "That such a condescension was deroagatory to the prerogatives of the peerage." The Lords' Reasons for insisting that the Commons shall not proceed on the other Articles till Judgment is given on those for Treason.] June 28. The Lords sent a Message to the Commons, desiring them to continue sitting for some time; with which the Commons having readily complied, another Message. was, soon after, sent to them from the Lords, to desire a present Conference in the Painted Chamber, upon the subject matter of the last *Conference. The Commons agreed also to this Conference, wherein the Lords delivered their Reasons for adhering to their Resolution, to the managers of the Commons ;" viz. "Their Lordships, in order to preserve a good correspondence with the House of Commons, (which they shall always endeavour to de as far as lies in their power) have desired this Conference upon the subject matter of the last Conference: and have directed us acquaint you, that their lordships judge it a right inherent in every court of justice, to order and direct such methods of proceeding, as such court shall think fit to be observed in all causes depending before then, which can have no influence to the prejudice of justice; and where such methods of proceeding are not otherwise settled by any positive rule. The power of judicature on all Impeachments, being a right unquestionably inherent in their lordships, and it not being determined by any positive rule, whether the House of Commons may proceed to make good the several Articles exhibited for misdemeanours, in such order as to they shall think fit, before they price treamake good the Articles exhibited for high treason; and there being no precedent where the Commons, upon the trial of auy such impeachment, attempted to proceed in the first place, to make good any of the Articles contained in such impeachment for high crimes and misdemeanors; their lordships, considering the nature of the impeachment now depending before them, and the method wherein the managers for the House of Commons were beginning to proceed upon the trial, to make good the first Article thereof, which is a charge for high crimes and misd: meanours only; and also considering the very different methods of proceeding on an Impeachment of a peer for high treason, as well before as upon the trial thereof, and the circumstances attending such a trial, thought themselves obliged to come to their resolution communicated to the Commons on the 24th instant, as well for doing justice in the case depending before them, as for the preventing a new precedent to be made on this trial; in consequence whereof, a new and unjustifiable form of proceeding against a peer upon an impeachment for bigh treason and high crimes, might be introduced at his trial upon those Articles in which he is charged for high crimes and misdemeanours only; to the prejudice of the peerage of Great Britain in all times to come, viz. The trying a peer on ATticles for high crimes and misdemeanours without the bar, the detaining in custody a peer so accused, and repeated commitments of him to the Tower, during the time of such trial, and subjecting a peer to as ignominious circum stances on his trial on articles for misdemeanours as if he was then on his trial on articles for high treason; whereas a peer on his trial, on articles for misdemeanours only, ought not to be deprived of his liberty, nor sequestered from parliament, and is intitled to the privilege of sitting within the bar during the whole time of his trial; in all which particulars the known rule of proceedings in such cases may be evaded, should a peer be brought to his trial on several articles exhibited against him for high crimes and misdemeanours and for high treason mixed together, and the Commons be admitted to proceed to make good the Articles for high crimes and misdemeanours, before judgment be given upon the articles for high treason. Their lordships have fully considered the matters offered to them by the House of Commons at the last conference relating to the proceedings against Robert earl of Oxford and earl Mortimer; and their lordships are fully satisfied, that the resolution they have taken and communicated to the Commons on the 24th instant, is just and reasonable : and that the House of Commons are not put under any real inconvenience thereby, in carrying on their present prosecution. Their lord-> ships have commanded us to let you know, that they do insist on their said Resolution, viz. That the Commons be not admitted to proceed in order to make good the Articles against Robert earl of Oxford and earl Mortimer, for high crimes and misdemeanours, till judgment be first given upon the Articles for high treason." Commons, but refused by the Lords.] Mr. CarA Free Conference thereupon desired by the ter having reported the above Reasons to the House of Commons, they resolved to take them immediately into consideration. Then a Message was sent from the Lords, to acquaint the Commons, That they had ordered the earl of Oxford to be brought to the bar of their House in Westminster-Hall, at eleven the next morning, in order to proceed farther on the Trial of the said earl. The Commons there upon sent Mr. Yonge to the Lords to desire that their lordships would continue sitting for agreed to, the Commons took their lordships' some time, which the Lords having readily Reasons into consideration, and then resolved, That a Free Conference be desired with the Lords upon the subject matter of the last Conference." June 29. The Lords took the desire of the Commons, of a Free Conference, into consideration; and, after a long debate, it was resolved, "That as the subject matter of the last Conference, concerned a point of judicature determined by their lordships after the trial began, their lordships did not think fit to give a free Conference on the subject matter them on such occasions, which at this time, is of the said Conference, as was desired by the House of Commons." of the highest importance, because a misunder standing on this account would tend to defeat the Trial of the Impeachment of the Commons: That the Commons conceive clearly, that the subject matter of the last Conference is not a point of judicature, but a point relating only to the prosecution of the Commons, it having arisen before any matter of judgment had come before your lordships upon the Trial; for which Reasons the Commons conceive, that your lordships ought not to have denied them a Free Conference upon the subject matter of the last Conference." The Lords would have sent that evening a Message to the Commons, to acquaint them with this Resolution; but the Commons having timely notice of it, immediately adjourned till the 1st of July. The Lords having on that day sent a message to the Commons, to acquaint them with the said Resolution, and withal, That their lordships had ordered Robert earl of Oxford and earl Mortimer, to be brought to the bar of their House in Westminster-hall that very Monday at eleven in the forenoon, in order to proceed farther on the Which the Lords insist upon refusing.] Then Trial of the said earl; the Commons therea Message was sent to the Commons from the upon ordered the Serjeant at Arms to summon Lords, That their lordships desired the Comtheir members, which done, it was resolved, mons to continue sitting for some time; which nem. con. That a Conference be desired with being readily granted, another Message was the Lords upon the subject matter of their sent soon after from the Lords, to desire a prelordships' message, relating to the Free Consent Conference with the Commons in the ference desired by this House; and it was orPainted Chamber, upon the subject matter of dered that the Managers immediately to draw the last Conference. Accordingly_the_ Manaup Reasons to be offered to the Lords at the said Conference. At the same time a Mes-mittees, who informed them, "That the Lords gers of the Commons came to the Lords com. sage was sent from the Commons to the Lords, by Mr. Gibbon, to desire their lordships to defer their going into Westminster-hall for some time; and Mr. Carter having, from the managers, reported the Reasons by them drawn up, the same were agreed to, and Mr. Craggs was sent to the Lords to desire the said Conference. Some time after Mr. Gibbon reported, That the Lords would defer going into Westminster-hall for a while, as was desired by the Commons; and Mr. Craggs reMr. Tuffnell rose up, and spoke as follows: ported also, That their lordships agreed to a "Mr. Speaker; I cannot but think the proConference, and had appointed the same pre-ceeding of the Lords very extraordinary upon sently in the Painted Chamber. The Commons' Reasons for desiring a Free Conference.] Hereupon the Managers of the Commons went to the said Conference, and being returned, Mr. Carter reported, that they had delivered the Reasons directed by the House to the Lords, as follows: "The Commons having taken into conside ration your lordships' Message, viz. That your lordships did not think fit to give a Free Conference on the subject matter of the last Conference, as was desired by the Commons; and they being still desirous, to the utmost of their power, to preserve a good correspondence with your lordships, have asked this Conference; and have commanded us to acquaint your lordships, that they are very much surprised to find your lordships deny a Free Conference, after your lordships have already agreed to a Conference desired by the Commons on the same subject matter; and after your lordships have on your parts also desired a Conference upon the same subject: That Free Conferences are the most antient and established methods, for adjusting the differences that have at any time arisen between the two Houses, and as the Commons conceive, is the only method to preserve a good correspondence between did insist upon denying a Free Conference." Debate thereon in the Commons.] July 1. Mr. Carter reported, That the Lords insisted upon denying a free Conference. This put the House into a flame; and it being thereupon ordered, That the said Report be now taken into consideration, several warm Speeches were made on that occasion, by Mr. Secretary Stanhope and Mr. Craggs, immediately after whom this occasion, that, after having received the should now come to a resolution, That the Articles as delivered in by this House, they 'Commons be not admitted to proceed upon 'the high crimes and misdemeanours, till judg'ment be first given upon the Articles for high treason.' And here, though unwillingly, I must observe, that the expression made use of in their lordships' Message to the Commons, to me seems very unsuitable to that candour which they have so remarkably shewn upon all occasions, and from whence this House might reasonably expect a more becoming treatment. There is another thing which I cannot but take notice of, which is, that after having had Copferences with the Commons on this subject, they should now refuse a Free Conference, which I should have thought, must have been the natural result of the former, as being the most probable way to accommodate matters in cases of difficulty. The reason they give for this their adhering to their Resolution is, That this is a point of judicature which solely belongs to their lordships; whereas the Commons say, It is only a matter of prosecu tion. And yet, if this objection were good, why was it not equally so against their agreeing to the first Conference? "Notwithstanding these considerations, if I could be of opinion with those gentlemen who think, either that the honour of this House is so much concerned, or that it is so essential to the rights of the Commons of Great Britain, I should be as unwilling as any one here, to contribute the least towards the betraying of them. But since I do not hear it is pretended that there are any precedents on either side; and I can, by no means, think it of that consequence which some gentlemen seem to imagine, especially if there be a saving to the rights and privileges of this House;' I should be inclined to be of opinion, that it would be better to acquiesce in the method proposed by the Lords, than to let a prosecution entirely drop, which has so universally raised the expectations of mankind. Then we should see, 6 what that living and legal evidence is, which we have been so often promised from those, in whom the House reposed the greatest confidence; and if there should be any failure in the proof of the high treason, the blame might lie in its proper place. "Sir, I am sorry to find there should be such remissness in a prosecution, which was formerly carried on with so much warmth and vigour. And I could wish to see that spirit of patriotism, which has hitherto animated this House; that just resentment for our injured country, once more revived. Where is now that public-spirited, disinterested zeal, which then warmed the patriot's breast? are all those glorious thoughts and heroic sentiments quite evaporated? how comes it that those who then felt, and made others to feel, such an intenseness of heat, such a lively emotion of spirit, are now so calm and undisturbed? that those who were then so full of heat and flame, are now so cold and lifeless? is the nature of things so far altered, that what was then the most flagrant high treason, is now nothing at all? lamented the unhappy dilemma, as he called it, to which they were brought, either to see so great an offender as the earl of Oxford escape unpunished, or to acquiesce in proceeding on his Trial in the manner prescribed by the Lords, he said, That he thought the latter the more eligible of the two, with a saving to the rights and privileges of the Commons; and therefore made a motion for it. He was seconded and backed by Mr. Hampden: but the question being put thereupon, it was carried in the negative. Earl.] Then a Message was brought from the Motion for a Bill of Attainder against the Lords, to acquaint the Commons, That their lordships intended presently to proceed farther on the Trial of the earl of Oxford in Westminster-hall, of which the Commons took no notice; but being sensible that the Lords Strickland moved, That leave be given to would discharge the prisoner, sir William bring in a Bill to inflict such Pains and Penalties upon Robert earl of Oxford and earl Mortimer, as his traitorous practices and other high crimes and misdemeanours do deserve, and as shall be thought reasonable. Hereupon Mr. Tuffnell rose up again, and said, That he could by no means come into that motion; for that how necessary and reasonable soever such a Bill might be at another juncture, he could not but think it unreasonable now; when, as yet, it was uncertain what the Lords would do. But that, however, he would freely declare his mind on this occasion, viz. That notwithstanding he was convinced, the earl of Oxford was guilty of the crimes wherewith he was charged, and that no man had ever contributed more to the ruin of his country than he had done: yet, since there was a legal prosecution begun; since that noble lord had submitted himself to public justice; and considering that it is the peculiar glory and happiness of a free-born people to be governed by known laws; he would never give his consent to a Bill, which, in his opinion, must make the lives, the fortunes, and liberties of the subjects of Great Britain, stand upon so unsettled and precarious a foundation. Upon which the debate was adjourned to the 3rd of July. "Mr. Speaker; my concern is for the honour of this House, which has been so far engaged by assurances of Evidence to support the Charge. I must therefore take the liberty to call upon those gentlemen who gave them, to extricate us from our present difficulties: and, I am sure, we shall not want their assistance in an affair where their honour is so #early concerned. I call upon them the rather, The Lords proceed upon the Earl of Oxbecause it is a justice which they owe to them-ford's Trial, and the Commons not appearing, selves, it is a justice which they owe to this House of Commons, it is a justice which they owe their country, their poor, unhappy country, which they have so often described, as involved in the greatest difficulties, as labouring under the most ruinous circumstances, oecasioned by the ill conduct, the pernicious counsels, and traitorous practices of the noble person now under your prosecution." In the middle of this debate, another Message was brought from the Lords, to desire that the Commons would continue sitting some time, which the House agreed to. After this, Mr. Lechmers made a speech, wherein having he is acquitted unanimously.] About seven in minster-hall, where three several proclamations the evening, the Lords went down to West were made for the accusers of the earl of Oxford to appear, and make good the Articles of The Commons Impeachment against him. not appearing, their Lordships went back to their own House, where the Lord High Steward said, and other High Crimes and Misdemeanours, and of all things therein contained, and that the said Impeachment be dismissed."" And then the Lord High Steward put the question to the lords present, beginning at the youngest baron, in manner following, My lord, your lordship has heard the Question stated, what says your lordship, is your lordship Content, or Not Content?"" The Lords present were all Content. Then the Lord High-Steward said, "My Lords, upon the question stated, I am content. My Lords, Robert earl of Oxford and earl Mortimer is Acquitted of High-Treason and other high crimes and misdemeanours where with he stands charged, by the unanimous vote of your lordships here present." And the Earl being called to the bar, the Lord High-Steward told him," Robert earl of Oxford and earl Mortimer, I am to acquaint your lordship, that your lordship is acquitted of the Articles of Impeachment exhibited against you for High-Treason, and other high crimes and misdemeanours, by the House of Coin mons, and all things therein contained; and thereupon I am to pronounce this Judgment, which I pronounce accordingly:"It is con6 sidered, ordered, and adjudged by the Lords 'Spiritual and Temporal in Parliament assem bled, that Robert earl of Oxford and earl 'Mortimer, shall be, and is hereby acquitted of the Articles of Impeachment exhibited against him by the House of Commons for High Treason and other High Crimes and • Misdemeanours, and of all things therein contained, and that the said Impeachment shall be, and is hereby, dismissed.' Then the Lord High-Steward commanded the Lieutenant of the Tower of London to discharge his prisoner; and said, "My Lords, this is all that remains to be done by virtue of his majesty's commission, I do therefore declare the same to be dissolved." Upon which the Lord High-Steward broke his staff.* "Thus ended this affair: and it is plain, the earl owed his discharge not only to the disputes between the two Houses, but also to the late changes in the ministry; without which the earl of Nottingham, the duke of Argyle, the earl of Ilay, the duke of Devonshire, and the lord Townshend, would certainly not have been in the number of his friends. However the Commons did not rest here. For though sir William Strickland's bill for inflicting pains and penalties on the earl was not seconded, yet, to shew their resentment at this proceeding, they resolved that the king should be addressed, to except him out of the Act of Grace, which was intended to be brought into the House. The king had likewise, two days before, upon information that the earl of Oxford designed to come to court, thought fit to forbid him.' Tindal. "I have the pleasure to inform you, that lord Oxford's Impeachment was discharged last night, by the unanimous consent of all the The Motion for a Bill of Attainder against the Earl of Oxford renewed.] July 3. The Cominons resumed the adjourned debate, upon the motion made two days before, by sir Wm. Strickland, who again insisting on that motion, had the mortification of seeing, that not one member would second him: On the contrary | Mr. Hungerford said upon that matter, That for his own part, he had ever been against violent proceedings; that, in his opinion, where the life, fortune, or reputation of any man is concerned, the parliament ought to go upon evidence as strong and as full as is required in Westminster-hall: and that he had observed, that al! Bills of Attainder proceeded from party-piques. Sir William Strickland being offended at this speech, made some severe reflections upon it; and added, That for his own part he had no personal pique against the earl of Oxford: but looked upon him as an enemy to his country; and since the Commons could not bring him to justice in the ordinary way, they ought, in his opinion, to have recourse to an extraordinary method; for which, however, they did not want precedents. Mr. Hunger ford turned the reflections made upon him into raillery; and after some other speeches, The Commons' Address to the King to except the Earl of Oxford out of the Act of Grace.] Lords present: and, as nearly as I could count, their number was 106, the duke of Mark borough, my lord Cadogan, lord Coningsby, and a few others of the most violent, having withdrawn themselves before the Lords came into Westminster-hall. The acclamations were as great as upon any occasion: and our friend, who seems more formed for adversity than prosperity, has, at present, many more friends than ever he had before in any part of his life. I believe he will not have the fewer, from a message he received this morning from the King, by my lord chamberlain, to forbid him the court. You know the prosecution was at first the resentment of a party; but it be came at last a ridiculous business, weakly carried on by the impotent rage of a woman, (I mean of my lady Marlborough) who is ahnost distracted that she could not obtain her revenge." Erasmus Lewis to Dr. Swift. Swift's Works, vol. 16, p. 169, edit. 1803. "It is an anecdote, now generally believed, That though this dispute between the two Houses, (which Articles should be first proceeded on) was the ostensible cause for dis missing the Impeachment against lord Oxford; the real cause was, a letter or paper, signed by the duke of Marlborough jost before queen Anne's death, which shewed his connection, at that time, with the abdicated family; and which letter lord Oxford had in las possession. In the notes to the article Churchill, in the new Biographia Britannica, vol. 3, p. 562, this anecdote is very well authenticated from the late James West, esq." Hatsell's Precedents, vol. 4, p. 288, edit. 1796. |