AN ACCOUNT OF What past on Monday the 28 th'. of October, 1689. In the HOUSE of COMMONS, And since at the King's-Bench-Bar at WESTMINSTER, In Relation to the Earl of CASTLEMAINE.  
LONDON, Printed for Matthew Granger, 1690.   

AN ACCOUNT OF What past on Monday the 28th. of October, 1689. in relation to the Earl of Castlemaine, etc.  
THE Attorney General being (on Saturday the 26 th' of October 1689.) informed, that the Earl of Castlemaine, Sr. Edward Hales and other Prisoners of the Tower, were brought by their Habeas Corpus to the Hall to be bailed, desired to know the Pleasure of the House in that Affair; who ordered that they should presently be all sent for to their Bar; which was done accordingly; Only the said Earl was not there; for he remained still in the Tower, having (it seems) made use of no such Writ; However the House directed the Governor to bring him up (as he did) the Monday following; And then the Speaker said to this Effect.  

Mr. Speaker to my Lord.  
MY Lord, the House having understood, That You went Ambassador to Rome; and also took your place at the Board as a Privy Councillor without taking the Oaths (which are great Crimes, and against Law.) They have sent for you to know what you have to say for yourself.   

His Lordship's Answer.  
IT cannot (Mr. Speaker) but put me into more than an ordinary Confusion, when I find myself in this place as a Criminal; especially, seeing (through the whole course of my Life) the Glory and Welfare of England has been my chief Aim and Endeavour. You are pleased Sir to lay so great a Charge upon me, that (without shuffling or impertinence) I might ask time to consider it; Yet since I well know how much you value your time, and since time also may make what I say suspected more of Artifice than Candour, I shall now (without further delay) let you and this great Assembly see (where so many of Birth and Quality are met) how far I am from deserving either censure or reproach. But (Mr. Speaker) before I go further, I must humbly beg these few Favours of you. First, that you would Pardon all Tautologies or want of Method, as beginning perchance in the middle, and ending again where I should have begun. Secondly, That you would not take any advantage at my Answers, for I shall be Ingenuous to the utmost, and hesitate at nothing you shall ask. And Lastly, if (through inadvertency or haste) I should say what might shock you, that you would not stand upon the rigour of the Words, but upon the sincerity and clearness of my Explanation.  
Be pleased then to know, Sir, I was so far from seeking this Employment, that I did not so much as dream it was designed me; And when I knew it, I used my utmost endeavour to avoid it. My ignorance of the King's Intentions appears by this, that (in the Year I went to Rome) returning out of the Country (according to my usual custom) after Michaelmas, I found a Protestant, a Person of Note at my House, who told me, that before I spoke with any Man, he was to bring me to my Lord Sunderland, and from thence I was to go to his Majesty; Nor would he (scarce) afford me time to put myself in a tolerable order to attend them. My Lord Sunderland soon hinted to me, what the King's intentions were; And when I recurred to his Friendship, I had this Answer, or Words to this purpose; That if Subjects should refuse their King's Service in every thing that was troublesome or Contre-Coeur, all Kings would be in an ill Condition; that my request was beyond his Power; and that he believed I should find his Majesty very positive; and so I did Mr. Speaker, I'll assure you. Nay to satisfy you yet more fully of my backwardness to this Journey; can you think, Sir, that I, that had been at Rome more than once; that had seen the Grandeur of so many Roman Embassies; and knew they exceeded in Splendour and Expense three times those to any Crowned Head whatsoever, should not be extraordinarily concerned at an Employment, which had for its Subsistance (as the Lords of the Treasury well known) no other Establishment then that to Spain or France, which (being 100 l. a week) amounts only to 5200 pounds' per. annum?  
Having thus Sir, showed you how little fond I was of the thing, let me now (with Submission) ask you, what could I otherwise do in my Circumstances? For first I call all that's Good to witness, I never heard of Law against it, nor know of any to this very day; And yet (on the other side) I was not only Commanded by the King, but knew his Royal and Legal Power of Commanding the Service of his Subjects, and most particularly in Embassies, as appears by many old Examples; Nay, by a fatal one in this very Century; I mean the Case of Overbury, to which no body here (I'm sure) is a stranger. In the next place, Sir, what did I go to Rome for? Why only with a Letter; with a Compliment from a professed and open Catholic King to his Holiness, as all Princes of that Communion do in the beginning of their Respective Reigns. Besides Mr. Speaker, as I know no Law, that forbade my Obedience, so I must needs say (and this without cramping or putting any Bounds to the Legislative Power) that no such Law can be made; For Sir, the Pope is a very considerable Temporal Prince, whose Territories border on two Great Seas, the Miditerranean and Adriatic; If then our Merchants should be by storm or other necessities, driven into his Ports; if Englishmen should be surprised by any Roman Party as they travel in a Neighbouring Country, shall our Government (not to mention a hundred other greater accidents) want Power to send a Messenger to Ransom and Compound for them? What Law therefore was there ever yet framed, or can be enacted (let the Commerce or Intercourse between Nations be never so much broken and prohibited) but that a Commander in Chief, a General, and much more a King, may beat a Parley, dispatch a Trumpet, nay, send and receive Letters as often as occasion does require?  
Now (Mr. Speaker) for Religion, I neither had any Commission concerning it, nor Transacted with his Holiness about it; And as no body ever did, or could lay any thing of that nature to my charge, so for some confirmation of it, I will appeal even to the Aqua fresca Houses of Rome, and to all the Protestant Gentlemen of our Nation there during my Embassy; for though what I tell you, Sir, be a Wonder, yet the Honourable Persons, who have resided in those parts, know it to be true, that for a Dish of Chocolate or a Dish of Limonade, one may know the measures and particulars of an Embassy in that City, as well as we do what passes within these Walls at our Coffeehouses. I am sure my under Servants have often smiled at the Grimaces and Mysteries which my Secretaires used in the beginning to make before my Audiences; for they have told them (within few hours after my return) almost Word by Word what had passed. Give me also leave, Sir, to add one truth more, which will assure you that I had no dangerous intrigue in hand; and this is, that notwithstanding his Holiness never had the least imagination or thought, but that I was as real and sincere a Catholic as any Man living; and the same thing also I can say of all the Cardinals; and in fine, of the whole Court in general; Yet none of them (and every Englishman in Town knew it) but looked upon me as one, that if any Immunity of the Crown were in question, or any Temporal Concern of the Kingdom touched, would stand as much in the Gap, and be in as Diametrical an opposition, as any Person of the Reformed Religion whatsoever.  
You see then Sir, both how, and why I went; nor have I done any thing certainly to merit any Man's unkindness or ill-will; nay, to lay yet further before you the hardship I am under, I shall state you a Case, not fetch't out of old forgotten Records, or Transacted in an Age disparate from ours, but of a Man attainted in this very House, in the memory of several now sitting, and even whilst I myself had the Honour to be a Member of it. The Case Mr. Speaker is Axtels the Regicide; one whose Crime (I dare say) my greatest Enemies think I abhor in the highest manner; nor do I mention the thing in favour of the Criminal, but in Honour of his grave and worthy Judges. Axtell you know (Mr. Speaker) was Indicted for the Murder of Charles the First; And to show that he maliciously contrived and abetted it, the King's Counsel urged his Commanding in the Hall at the Trial; his placing the Sentinels all about; And in short, his performing there the whole Office of Captain of the Guard. The Prisoner answered; but pray, Mr. Speaker, let me beg Pardon, if the Interval of almost Thirty Years has made me forget his Words, I am sure the sense of them I have not; I say, Sir, the Prisoner answered; My Lords I am under great oppression, I am hardly dealt with. Has Charles the Second been so Gracious as to pass over the ordinary transgressions of his strayed Subjects, and to look upon the Obedience of Soldiers to their then Superiors, as if the Authority had been more Legal? And shall I now die (who was under Military Discipline) for that, which I must have presently died for, had I not done it; to wit, had I not drawn up my Regiment, kept the Post ordered me, and performed the other duties, the Concourse being great and troublesome? Upon this the Judge replied; I confess (considering the King's merciful Resolutions) that your Argument is strong; it has great weight in it; But Mr. Axtell, did you do no more? Did you only perform the Duty of a Commanded Soldier? Who was it (I pray) that animated the Rabble? Who beat the Soldiers for not crying Justice? Who encouraged spitting in the King's Face? And who barbarously reviled and threatened a Noble Lady, that in the transports of her zeal (when she saw her Sovereign abused, when she heard such Blasphemy against him, and all this Fathered upon the Nation) made a noise or stir in the Court? These things therefore Sir, being proved against him; He was convicted, condemned, and so paid a Debt to Justice, and to the Sacred Ashes of that great and just Man.  
Now Mr. Speaker to application; And first (after a little glance on the tenderness of these Judges, when any necessity could be pretended) let me with your Pardon ask you, shall I suffer as a Transgressor of the Law, were there any, when I must have suffered by the Law, had I refused his Majesty's Orders and Commands? But Sir, if you demand, did I do no more than carry a Letter, or go with a Ceremonious how d'ye from the King? I must answer yes, and a great deal more too. For my House was an Asylum, a Place of Refuge to all distressed or oppress't fellow Subjects. If Seamen mutinyed or had any contest with their Captains, here a Reconciliation was made, and here they returned to their Obedience, if the Captains themselves (fraughted for the Camera) were delayed their Money, or misused by under Officers, they quickly found Redress, and often (by my interest) received more than they themselves expected; And if the question happened about quantity, or how Goods were conditioned at delivery, the Verdict I am sure went still on their side. Nor was my care confined to Rome only, but reached to all the Factories of Italy: For the Consuls themselves, nay every private Person found both an easy access to me, and an indefatigable Zeal in their concerns; so that the Merchants in General that had to do in those Parts, were far from being behind hand in their thankful acknowledgements. Nay one of the greatest Companies of our Nation, I mean that for Turkey, not only returned me their thanks very heartily by Letter, but did it again by Word of Mouth after my Arrival home.  
I am sure (Mr. Speaker) if the Employment I submitted to were a fault, I have already not a little suffered for it; for I never put bounds (as our Travellers, as well as my own Officers fully know) to any Expense that could be imagined for the Dignity of the Nation; And give me leave to tell you also Sir, that though the Name of Rome may be harsh and ungreatful to your Ears, yet what I did, was with a good intention, and like a true and faithful Englishman. For had I been sent with a Character to Constantinople, where they are Mahometans; or to China, where Gentiles; the Eclat or Figure which I should have endeavoured to make, would never be considered by you as an Honour to their Religion, but our Country; therefore since it is a Disparagement and great Reflection to a Kingdom, to come below or short of others in any thing that is public and of note, I cannot but have (at least) faint hopes, that you will have some consideration, some opinion of an Ambassador (though at Rome) that kept up (to his Power) the Glory and Grandeur of England.  
But Mr. Speaker, not to trouble you longer on the present Head, I'll end when I have told you this; That if I have done amiss in obeying the King's Commands, no Consul that has pursued Pirate or Bandit to Rome; No private Factor that has followed a Debtor thither; Nor in short any Man that has Written so much as one Letter to that City, though it were to demand his own, but is a far greater Criminal than myself, and lies at the mercy of every Enemy to be Indicted as a Contemner and Breaker of the Laws.  
Your second Charge Mr. Speaker, is my being a Privy Counsellor, without taking the appointed Oaths; To which I can truly say, they were never offered me; though I must also confess (for I shall be sincere with you in every thing) that I believe, nay that I am certain, I should not have taken them, had they been offered; So that I do acknowledge the Omission a fault against Law—  
Here the Speaker thinking that his Lordship had made an End, desired him to withdraw; but being informed that he had not done; He excused the Interruption, and then his Lordship went on.  
I say (Mr. Speaker) I acknowledge this a fault against Law, were there not several things of weight, that will (I hope) justify me to you; And here, Sir, I must entreat you, not to conceive that I come now to defend or make good the Dispensing Power, but only to show you how necessarily I was driven and induced to the aforesaid Omission; for (Mr. Speaker) in controversies and disputes, what can one do, but recur either to his own Observation, or to the opinion of learned Men, and Professors in the Science?  
In the first place then, when I began to examine myself as to the Right the King claimed and asserted; I saw Non obstantes deemed Legal, which signified to me Dispensing; I found the Power of continuing Sheriff's owned for many Ages to be undoubted Law, and yet I knew there was a positive Statute against it; Nay I remembered an Act, which I myself had in this House given my Vote and Consent to, viz. That about the Regulation of Carriages and Wagons; Or if this be not the exact Title, I must beseech you to Pardon my Treacherous Memory, and 'tis I'll assure you the only Traitor I ever yet succoured or supported; I say Sir, I remembered this very Act (almost as soon as made) suspended by Charles the 2 ds. Proclamation without the least Question or Murmur; and I took so much notice of it, as to make even then this Reflection (and I do assure you upon my Honour 'tis true) That though our Monarches could not impose and abrogate Laws o themselves, yet they had the Power (I perceived) to respite them.  
In the second place (Mr. Speaker) if I went abroad; I mean if I consulted the Thoughts and Sentiments of others, I found not only Great Men of the long Robe, but the Judges also themselves declaring in favour of this Prerogative; And the interpretation or determination of these Sages was always told me to be Law, till a new Law or a new Explanation should be enacted. What would you then (Mr. Speaker) have me to do, who was called to the Board by the King; who could not in Conscience take the Oaths; and yet had no reason to think I committed (in not taking them) a Crime; seeing the Law was thus openly expounded and published?  
And now Sir, since I have been forced to mention my Religion, which I know is a legal Fault, and of a high Nature; I must not forget also to celebrate the Goodness of this House, which has pardoned the Fault, even in the solemnest Way, and by the solemnest Act that ever past since Magna Charta; to wit, The great Act of Oblivion. Give me leave Sir, to say this too, for I can justly do it; That being so faithful and so true an Englishman, I neither should nor could (I am sure) have ever, during my Life, offended my Country, but in my Religion. Pardon also I humbly beseech you this digression, and together with it the Incoherences and Disjunctions all along; Nor shall I any ways doubt of it, since you so well know how uneasy and troublesome a long discourse (which my Circumstances have now required) must needs be to one, that wants both Eloquence and Practice.  
But (Mr. Speaker) to return where I left, and so conclude; How Sir, I pray you (and I demand it again of you with great respect) could I think the Omission (as I said) of the Oaths a breach of the Laws, when our Guides, who had the Laws in their keeping, told us explicitly, and without reserve the said Oaths were not necessary? Shall I then suffer that had neither Buoy nor Mark to direct me? certainly no; for if there were a fault, 'tis not I must suffer, but the Judges, and those knowing and deputed Pilots, that hung out (it seems) the wrong Flag and Signal. I have Sir, but one Word more to trouble you with, and this I speak in behalf of all here; Nay in behalf of all the People of England; That if I now undergo your Severity, and that single Persons (notwithstanding the Determinations and Judgements of our Courts of Justice) must be still responsible; No Man can be safe, no Man can be rest; for no body that acts can know (as accidents will often happen) whether he be Innocent or Guilty.  
Mr. Speaker, I am in great disorder for imposing thus on your Patience; and especially seeing I must yet presume to do it, one thing more occurring to me (as I hope) for your further Service, or at least Satisfaction; And 'tis to let you know how I came to be a Prisoner, and why I continued so thus long. Be pleased then Sir, that I tell you, that as soon as the King first left White-Hall, I thought it decency to go out of Town; and therefore three days after I took Coach for Montgomery-shire, where of late I used to reside in the Summer time. On the Borders of that Country, at a small Corporation called Oswestree, I was first stopped by the Rabble, and afterwards detained (with a strong Guard) at my Inn by the Major; though no body (as he confessed) made any Oath against me; and though he had no orders (as he said) from London for it; Nay (after a Month's restraint) he denied me my Liberty upon Bail notwithstanding two Neighbouring Lawyers (whom I sent for) assured him he could not justify the refusal by Law. I do not Sir, complain of any Incivility, either from him or the People; for I was used with respect enough; But I judge it extremely fit to let you see how the Liberty of a Subject was wilfully invaded by a Magistrate, and how little conscious I was of any Gild, since instead of flying, I went to a place where I was known by every body.  
In fine Mr. Speaker, after a confinement of Seven Weeks, I was sent for up, and brought hither by a Party of Horse; Nor was I ever questioned or examined by any body, but kept (upon the suspension of the Habeas Corpus Act) at a Messenger's House for Three Months; And when the said Act was suspended the last time, I was Committed (by my Lord Shrewsberry's Warrant) to the Tower, for Suspicion of treasonable Practices.  
His Lordship having ended, retired with the Sergeant at Arms to his Room, where after a little stay, he was sent for in again; And then the Speaker told him; That since he said his Journey to Rome was with a Letter of Civility to a Temporal Prince, and not about Religion, The House (to be more fully satisfied of it) desired to see his Instructions. To which his Lordship thus answered.  
I hope (Mr. Speaker) though I shall readily acknowledge my own natural Weakness, you will not yet think me so imprudent, as that (in a time of such troubles and distraction) I would keep Papers by me, and especially about Rome, to render myself liable to every malicious Man's Extravagancy and Comment. This therefore caused me Sir (the Night before I went towards Wales) to burn all Papers that came to hand; and truly some amongst the rest, that I have since wanted; Nay this I can also justly aver, that I remember not now one Word of those Instructions, having (I'm confident) never read them twice; only this I remember, they were Things of Course; Words of Form; and needed no further consideration. Yet Sir, that you may plainly see my Sincerity, and how far I am from any design of illuding and deceiving you, I shall show you how you mayretrieve them, when I tell you, that Mr. Monstevens brought them me, and that they were drawn (as I take it) by Mr. Bridgman; For I'm certain they came from my Lord Sunderland's Office.  
But my Lord (replied the Speaker) had you no private Instructions? None; Answered his Lordship. What none at all, said Mr. Speaker again. None I'll assure you Sir, replied his Lordship; unless the King's Orders, to demand a Cardinal's Cap for Prince Reinaldo of Este, were private instructions; Nor do I certainly know, whether those Commands were in my foremention'd Instructions, or whether I had them by Word of Mouth.  
My Lord, said the Speaker, I have another question to ask you; to wit, who of the long Robe told you of the King's Power of Dispensing, and that there was no necessity of taking the Oaths?  
I am Sir (answered his Lordship) infinitely troubled, if I have through want of Care, or by any improper Expression given you occasion to misapprehend me; For I never asked any particular Man of that Profession about this Affair; But my meaning was (and I hope my words are not contrary to my meaning) that the said Power was manifestly and openly declared to be Law by Judges and Lawyers; So that I deemed it no Solecism in Discourse to mention it as if they themselves had told it me.  
Then his Lordship retired again, and after a long Debate, the House past this Order. That the Earl of Castlemaine stand committed to the Tower by a Warrant from this House for High Treason, for endeavouring to reconcile this Kingdom to the See of Rome, and for other High Crimes and Misdemeanours.  
As soon as his Lordship was informed of this Vote, he entreated a Member to let the House know, that he had a Word or two more to trouble them with; So that being brought in, the Speaker told him, that the House having notice (he had something further to acquaint them with) was very willing to hear him.  
Mr. Speaker (replied his Lordship) I have nothing more to say about the former Matters; but understanding your Pleasure, I thought it my Duty to let you know, how the custom of the Tower as to Prisoners is changed; for in course heretofore (unless there were a particular Order of State to the contrary) they had the Liberty of the Tower; that is to say, they could walk about at seasonable hours with a Warder; But now as soon as one is committed (though it be upon bare suspicion, as I was) he is confined to his Lodging, and hindered from the Consolation of seeing his Friends, till (after much solicitation and trouble) leave be granted by the Secretaries. Therefore Sir, being morally certain that I shall be confined again assoon as I return, I humbly desire the Favour of this Freedom; It being also what I hitherto enjoyed after I had been restrained for some days in the aforementioned Manner.  
This said, his Lordship went out, and then was carried to the Tower, where he was made a close Prisoner, as he foretold, though what he moved, occasioned the following Vote.  
That a Committee be appointed to bring in a Bill for the better regulating the Imprisonment of the Subjects of this Kingdom, and to settle the Fees of Gaolers; And it was likewise referred to them, to examine into the abuses of Gaolers towards their Prisoners which have been heretofore Committed.  
On Wednesday the 5 th' of the following February, His Lordship moved for his Habeas Corpus, and was brought by the Lord Lucas, (the present Governor of the Tower) to Westminster, on the 10 th'; So that appearing at the King's-Bench, his Commitments were read, and Mr. Attorney having nothing to object against his being Bailed, the Court awarded it upon the Security of Thirty Thousand Pounds; that is to say, a Recognisance of Ten Thousand from himself, and Five Thousand a piece from his four Sureties; which were, John Earl of Bath, Thomas Earl of Aylisbury, Thomas Earl of Sussex, and Charles Lord Landsdown.   
FINIS.