The History and Proceedings of the House of Commons: Volume 2, 1680-1695. Originally published by Chandler, London, 1742.
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The fifth Parliament.
The 21st Day of March being come, the fifth and last Parliament in this Reign, was open'd at the City of Oxford; where the Gallery at the Public Schools was prepared for the Lords, and the Convocation-House for the Commons. Both Houses being met, the King adorn'd with his Royal Robes, and seated on the Throne, made this following Speech to them:
The King's Speech to both Houses.
'My Lords and Gentlemen,
THE unwarrantable Proceedings of the last House of Commons, were the Occasion of my parting with the last Parliament; for I, who will never use Arbitrary Government myself, am resolv'd not to suffer it in others. I am unwilling to mention Particulars, because I am desirous to forget Faults; but whosoever shall calmly consider what Offers I have formerly made, and what Assurances I renew'd to the last Parliament; how I recommended nothing so much to them, as the Assistances I had made for Preservation of the General Peace in Christendom, and the further Examination of the Popish Plot, and how I desir'd their Advice and Assistance concerning the Preservation of Tangier; and shall then reflect upon the strange, unsuitable Returns made to such Propositions, by Men that were call'd together to consult; perhaps, may wonder more, that I had Patience so long, than that at last I grew weary of their Proceedings, I have thought it necessary to say thus much to you, that I may not have any new Occasion given me to remember more of the late Miscarriages: It is much my Interest, and it shall be as much my Care as Yours, to preserve the Liberty of the Subject; because the Crown can never be safe when that is in Danger: And I wou'd have you likewise be convinc'd, that neither your Liberties and Properties can subsist long, when the just Rights and Prerogatives of the Crown are invaded, or the Honour of the Government brought low, and into Disreputation.
'I let you see, by my calling this Parliament so soon, that no Irregulaties in Parliament shall make me out of love with them; and by this Means, offer you another Opportunity of providing for our Security here, by giving that Countenance and Protection to our Neighbours and Allies, which you cannot but know they expect from Us, and extremely stand in need of at this Instant; And at the same time give one Evidence more, that I have not neglected my part, to give that general Satisfaction and Security which, by the Blessing of God, may be attain'd, if You, on your Parts, bring suitable Dispositions towards it: And that the just Care you ought to have of Religion, be not so manag'd and improv'd into unnecessary Fears, as may be made a Pretence for changing the Foundation of the Government. I hope the Example of the ill Success of former Heats, will dispose you to a better Temper; and not so much inveigh against what is past, as to consider what is best to be done in the present Conjuncture. The farther Prosecution of the Plot; the Trial of the Lords in the Tower; the providing a more speedy Conviction of Recusants; and, if it be practicable, the ridding ourselves quite of that Party, that have any considerable Authority or Interest amongst them, are things, tho' of the highest Importance, that hardly need to be recommended to you, they are so obvious to every Man's Consideration, and so necessary for our Security. But I must needs desire you, not to lay so much Weight upon any one Expedient against Popery, as to determine that all others are ineffectual: And, among all your Cares for Religion, remember, that without the Safety and Dignity of the Monarchy, neither Religion nor Property can be preserv'd.
'What I have formerly, and so often declared touching the Succession, I cannot depart from. But to remove all reasonable Fears that may arise from the Possibility of a Popish Successor's coming to the Crown; if means can be found, that in such a Case the Administration of the Government may remain in Protestants Hands, I shall be ready to hearken to any such Expedient, by which the Religion might be preserv'd, and the Monarchy not destroy'd. I must therefore earnestly recommend to you, to provide for the Religion and Government together, with regard to one another, because they support each other: And let us be united at Home, that we may recover the Esteem and Consideration we us'd to have Abroad. I conclude with this one Advice to You, That the Rules and Measures of all your Votes may be the known and establish'd Laws of the Land; which neither can, nor ought to be departed from, nor chang'd, but by Act of Parliament: And I may the more reasonably require, That you make the Laws of the Land your Rule, because I am resolv'd they shall be mine.'
Upon finishing this Speech, the Lord-Chancellor, by his Majesty's Command, directed the Commons to return to their House, and to chuse a Speaker. Which they accordingly did, unanimously electing William Williams of Gray'sInn Esquire, Counsellor at Law, and Recorder of Chester, who had been Speaker in the last Parliament. When the Commons presented him to his Majesty, on Tuesday the 22d of March, he made this Speech to the King:
The Speaker's Speeches to the King.
'May it please your Majesty, The Knights, Citizens and Burgesses in Parliament assembled, with Duty and Loyalty agreeable to themselves and the Persons whom they represent, have in Obedience to your Royal Pleasure, for the Disposing of themselves in that great Assembly for your Majesty's Service, consider'd of a Speaker; and, to manifest to your Majesty, and the World, That they are not inclinable to Changes, have with one Voice elected Me their Speaker, having had the Honour to serve your Majesty and the Commons in that Trust, in the last Parliament. With all Humility I presume again, by their Commands, to stand before your Majesty, to receive your Pleasure, with a Head and Heart full of Loyalty to your Sacred Person; arm'd with a settled Resolution, never to depart from your well-known, ancient and establish'd Government.'
Tho' the King was not pleas'd with the Speech, he thought fit by the Lord Chancellor to approve of the Election, in the usual Form. Upon which the new Speaker made this farther Speech: 'Most gracious Sovereign, Natural Allegiance commands Loyalty to your Majesty from every Subject. Your singular Grace and Favour to Me, in the last Parliament, continu'd by the Honour I have in this, add more than Dutifulness and Obedience to my Loyalty. I am set in the first Station of your Commons for Trust and Quality; an high and slippery Place! It requires a steddy Head, and a well pois'd Body in him that will stand firm there. Uprightness is the safe Posture, and best Policy, and shall be mine in this Place, guarded with this Opinion, That your Majesty's Service in this Trust, is one and the same with the Service of your Commons, and that they are no more to be divided than your Crown and Sceptre. They truly serve the Crown and Country, which shall be my Care and Industry, who make the Safety of your Sacred Person, the Defence and Security of the Protestant Religion, the Support of your Majesty's Government, the Maintenance of the Laws, and Preservation of the ancient Constitutions of Parliament, one and the same undivided Interest, one and the same Safety, one and the same inseparable Security for yourself and People. These are the Desires of all good Men, but must be the Effects of Good Councils. For the Enabling of your Majesty's Great Council now in Parliament assembled, to compleat this blessed Establishment, with all Humility I address to your Majesty, in the Name and on the Behalf of the Commons in Parliament; 1. That We and our Servants may be free in our Persons and Estates, from Arrests, and other Disturbances. 2. That in our Debates, Liberty and Freedom of Speech be allow'd us. 3. That, as Occasion shall require, your Majesty will vouchsafe us Access to your Royal Person. I take leave to join this humble Petition for myself, That nothing by me, in Weakness, or through Inadvertency, said or done, may turn to the Prejudice of the Commons; and that my Behaviour and Proceedings may receive a benign and favourable Interpretation with your Gracious Majesty.'
The Chancellor's Speech to him.
Upon this, the Lord-Chancellor, by Command from his Majesty, made this Return to the Speaker: 'Mr. Speaker, All your Petitions are fully and freely granted by his Majesty, in as large and ample a manner, as ever any House of Commons yet enjoy'd them: The King is very sure, the Wisdom of this House of Commons will make as prudent an Use of them, as any of your Ancestors ever did. Your own particular Petition is grateful to the King too; because he knows you will be as careful to avoid Mistakes, as his Majesty is ready to forgive them. And now, Mr. Speaker, these Preliminaries being thus over, the King desires you would hasten to the rest that are necessary to be dispatch'd, before we can enter into Business; that so we may husband Time, which is now more necessary than ever; and he hopes that this Parliament will come to a very happy and prosperous Conclusion: And that it may do so, God Almighty direct and prosper all your Consultations.'
Tho' the Speaker had not the good Fortune to please the King, on this Occasion; he was order'd the Thanks of the House, and desired to print his Speech.
Debate on printing the Votes. ; Sir J. Hartop.
'Mr. Speaker, What I am about to move, concerns us all. The last Parliament, when you was moved to print our Votes, thought it was for the Security of the Nation, and you found it so. It prevented ill Representations of us to the World, by false Copies of our Votes, and none doubted your Honour in the Care of it. And I am confident that this House will be no more ashamed of their Actions, than the last was. Printing our Votes will be for the Honour of the King, and the Safety of the Nation. I am confident, if it had been necessary, you would have had Petitions from the Parts I come from, that your Actions might be made public. As I came hither, every body almost that I met upon the Road, cried, God bless you in what you are going about. I move therefore, that your Votes may be ordered forthwith to be printed, with the rest of your Proceedings; and I shall only add, that yourself has done so well in taking that. Care upon you the last Parliament, that the House will desire you to continue them in the same Method.'
Sir W. Cowper.
'That which put me upon moving the printing your Votes the last Parliament, was false Copies that went about in former Parliaments, of the Votes and Transactions of the House. Let Men think what they please, the Weight of England is the People; and the more they know, the heavier will it be; and I could wish some would be so wise as to consider, that this weight hath sunk ill Ministers of State (almost) in all Ages; and I do not in the least doubt, but it will do so to those who are the Enemies of our Religion and Liberties. And the World will find the honest Commons of England will sink Popery at last, therefore I second the Motion.'
'I beg pardon if I consent not to the Motion of Printing the Votes, &c. consider the Gravity of this Assembly. 'There is no great Assembly in Christendom does it. 'Tis against the Gravity of this Assembly, and 'tis a sort of Appeal to the People. 'Tis against your Gravity, and I am against it.
'If you had been a Privy-Council, then 'twere fit what you do should be kept secret. Your Journal-Books are open, and Copies of your Votes in every Coffee-House; and if you print them not; half Votes will be dispersed to your prejudice. This printing, &c. is like plain English-men, who are not asham'd of what they do; and the People whom you represent, will have a true account of what you do; you may prevent the publishing what parts of the Transactions you please, and print the rest.'
'I find that those who write out Votes and Transactions, and send them all England over, are favoured; and I believe no Gentleman in the House will be against printing them but the Secretary. I hope you will not have reason to be asham'd of what you do, therefore I am for printing, &c.'
'By experience we have found, that when former Parliaments have been prorogued or dissolved, they have been sent away with a Declaration against their Proceedings. If our Actions be naught, let the World judge of them; if they be good, let them have their Virtue. 'Tis fit that all Christendom should have notice of what you do, and Posterity what you have done, and I hope they will do as you do, therefore I am for printing, &c.'
Sir F. Winnington.
'What has been said by the Secretary, is a single Opinion, (for he says, that printing the Votes is an Appeal to the People) I hope the House will take notice, that printing the Votes is not against Law. But pray who sent us hither? The Privy-Council is constituted by the King, but the House of Commons is by the choice of the People. I think it not natural nor rational, that the People who sent us hither, should not be informed of our Actions. In the long Parliament it was a Trade amongst Clerks to write the Votes and disperse them, and they were questioned for it there; but 'twas then said by a learned Gentleman, that 'twas no Offence to inform the People of the Votes of Parliament, the JournalBooks being open, and the People ought to have notice of them. The long Parliament were wise in their Generation, to conceal many things they did from the People, and yet the Clerk was sent away, (who dispersed the Votes) and had nothing done to him. The Popish Party dread nothing more than Printing what you do; and I dread a man in the Secretary's post, and such an Accusation as was upon him in the last Parliament, that he should hold such a Position, That printing the Votes is an Appeal to the People.'
Resolved, That the Votes and Proceedings of this House be printed.
A Motion was made to enquire why the Bill for Repeal of 35 El. &c. which had passed both Houses, was not presented with the rest for the Royal Assent.
Debate on the Miscarriage of a Bill for Repeal of 35 El. &c. ; E. Hampden.
'I think the Motion, is to enquire after the slipping of that Act the last Parliament, and not presenting it for the Royal Assent. For my own part, I look upon it as a Breach of the Constitution of the Government. We are told, that we are Republicans, and would change the Government: but such as are about to do so, 'tis a natural fear in them to be thought so, and they will cast it upon others. In a croud 'tis frequent for Pickpockets to cry out, Gentlemen, have a care of your Pockets, that they may more securely do it themselves, and have the less suspicion upon them. I will not offer this great thing to the consideration to-day, but move you to adjourn it till to-morrow
Sir F. Winnington.
'I shall humbly put in this word: I doubt this matter will be too big to be debated to-day; 'tis of great importance, and will not be forgotten; be pleased to adjourn the Debate, &c.'
Sir N. Carew.
'I humbly move, that for the preservation of the Protestant Religion, and the King's Person, a Bill be brought in to prevent a Popish Successor, and in particular against James Duke of York, the same Bill which past the last Parliament.'
'You are upon rising, and I shall not detain you long. I must give my Negative to this Motion, and my reason why I do so, is, because the King hath declared in his Speech, that as to the point of altering the Succession, he cannot depart from what he has so often declared. The King has given his Vote against it, and therefore I must do so too.'
'The Duke of York is in Scotland, and I hope the King will come up to what he has said in his Speech. My Liberty and Property is dear to me, and I'll support the King's Prerogative too; and I hope we shall remove those People, Briars and Thorns who scratch you in your intentions against Popery, which I see we cannot prevent without this Bill to exclude the D. &c. And therefore I am for it.'
'I am heartily heartily glad to find that the Zeal of the House still continues for the Preservation of the Protestant Religion. My Opinion is, that we cannot preserve the Protestant Religion with a Popish Successor to the Crown, nomore than Water can be kept cold in the Hot-pot; but I would do it in all the decent Ways to come at in The King recommends to you in his Speech, to look back to what he formerly said as to the Succession, &c. If there be no other way to prevent Popery, but a Bill to exclude the Duke, &c. from the Succession, &c. my Opinion is, that it will be more decent to our Prince, and better for those who sent us hither, that before the Bill be brought in, to give it the Honour of a Day, to consider of Expedients to save Religion under a Popish Successor; for that I shall expect from some honourable Person: But if none come, then you may proceed to this Bill with more Honour. Therefore I move to appoint a Day to consider of it.'
Sir J. Ernley.
'I should not have troubled you, but from what was spoke last. By all Means just and lawful, we are to secure our Religion and Properties: We see the great Attempts made upon us from Rome, and we must do something for our farther security. I will not speak of the former Bill of excluding the Duke, &c. nor of the King's Speech, that gives you Latitude for Expedients; and I would not offer any, if I thought they would not do as well as that Bill, which is but an Expedient. But because the King has declared against that Bill, and invited you to Expedients, I would not put that Bill any more to the hazard of Rejection, but think of some Expedients.
'I can see no Expedient to save Religion, and preserve the King's Person, but the Bill to exclude the Duke, &c. All Gentlemen I believe would be willing as to the Manner, and save the Matter: But when our Prince is encompassed (all) with the Duke's Creatures, the Duke's safety is because of their Dependencies: The Danger is not from Popery, but from the King's being encompassed with the Duke's Creatures. I would proceed in this Matter with all decency; and since a Day is moved for, pray let's have Time to consider.'
Sir C. Musgrave.
'You are invited by the King's Gracious Motion to consider how to preserve Religion, &c. I desire we may not now put a Question for bringing in a Bill to seclude the Duke, &c. else properly we cannot consider any Expedients for preservation of Religion.'
'The consideration of the preservation of the Protestant Religion, is of that weight, that though we have shewed our Zeal to it, yet I would not run upon a thing of this great Nature, without Consideration. They who advised the King's Speech, must answer for it. The Words of the Speech are, If any other way can be found out, &c. I think those about the King have done enough to ruin Him and Us: But I would have the King see we are so far from putting him upon that Stress, that we would help him out. I think that Speech the King read to us, to have nothing of the King's in it: He is a better Man, and a better Protestant than to do it of Himself: Therefore I would not put on a Resolution as flat and as short as that is in the King's Speech. The King has gone as far as this Resolution in his Speech comes to, in his Declaration about Dissenters formerly; and yet from the Reasons from hence, he was persuaded to revoke it. If Persons have been so prevalent as to put the King upon this Speech, let me see those Persons so forward to bring the King into a thing, to help him out; if they do not, I hope the King will lay the Blame at their Door, and not at ours. If they could have told us what Expedients were necessary, they would have put them into the King's Speech, and the Resolution-part of not altering the Succession would have been left out. A little Consideration in this great Matter, can do us no hurt, and will satisfy the People without Doors: But if they about the King can find out no Expedient, I hope he will lay them aside, and take their Council no more. Put not off this Consideration farther than Saturday; and if they can find us out an Expedient betwixt this and then, 'tis very well.'
'I have always observed, that the most deliberate Proceedings have had the best Success here, and the best Reputation abroad. I am as willing as any Man to come to this moved for, but with deliberate Steps. For my share, though I hear of Expedients abroad, yet I cannot conceive that a Title or Name can destroy the Nature of Expedients. But the King in his Speech has held you out a Handle. And I would not give those about the King occasion to say, that this House is running into a Breach with him. I would pay the King all the Respect in the World, and you cannot avoid setting a-part a time to consider Expedients: And I would not mix any thing with the Debate that Day. I think To-morrow is too soon to debate it: I shall propose Saturday for that Consideration, and then let us do what is fit in so weighty a Matter.'
'This is a Matter of great weight, and I would adjourn it to To-morrow. For the Reason of proposing Expedients, I do not move to adjourn for that; for it is as little Reason to me to expect any, as it was the last Parliament. That Parliament gave Reasons why no Expedients could be of any effect, but this Bill of Exclusion; and that Parliament saw enough of Expedients. There are a great many talked of abroad in the Streets, and won't you hear Expedients? What can a Man say less with any Modesty? But no Man can say but we are in danger of losing our Religion, if the Duke should come to the Crown. But the Question before you is, whether you'll put off this Debate? Therefore I move that the House will take into Debate the Security of the Protestant Religion to-morrow.'
Sir F. Winnington.
'All that I shall propose, is, that you would so word the Question as to have no Diminution to the Motion made for the Bill, &c. upon your Books, nor Prejudice, nor Reflection. When this Bill past the last Parliament, it was Nemine Contradicente; and most of this Parliament were of the last. For Expedients, 'tis a word mightily used and talked of, and willingly embraced, but none have been proposed. Let this Matter be reassumed on Saturday Morning, and so taken into Consideration to secure the Protestant Religion; and not to let appear upon your Books any thing relating to Expedients, or preventing a Popish Successor.'
'I was much surprized at the King's Speech, considering your weighty Reasons for the Bill, &c. the last Parliament; and that the Lords found out no Expedients for preservation of Religion, and yet threw out the Bill. But that the King may see, that what we do, is out of a real Sense of the Danger we are in from a Popish Successor, and not in contradiction to him; and when nothing is found out to save us, we may justify our selves in what we do; I am for adjourning the Debate.
Resolved, That this House will To-morrow take into Consideration by what Means the said Bill miscarried.
Friday, March 25. 1681. Thanks moved for free Choice of Members.
'When there has been a general Corruption, and all have not done their Duty, you should distinguish and give Thanks to them that have; as formerly you have done to Officers for doing their Duty in suppression of Popery, when through the Corruption of the Times, some have not done their Duty. Nothing is more Parliamentary than to return Thanks to those who have freely and without Expence chosen you Members; and I desire that the Members so elected, may be ordered to send their Thanks to those who chose them. And the House passed a Vote accordingly.
Debate on the loss of the Bill renewed. ; Sir W. Jones.
The loss of the Bill for Repeal of 35 Eliz. moved.
'This Matter deserves material Consideration, whether in respect of the loss of the Bill, or the shaking of the very Constitution of Parliament. The Bill that is lost is of great Moment, and of great Service to the Country, and perhaps to their Lives in the time of a Popish Successor. Those Men that hindered the passing that Bill, had a Prospect of that; and if it be sent up again, we are like to meet with great Opposition. But be the Bill what it will, the Precedent is of the highest Consequence: The King has his Negative to all Bills; but I never knew that the Clerk of the Parliament had a Negative, if he laid it aside or not. But consider, if we send up many good Bills, if this be not searched into, we may be deprived of them. No Man that knows Law or History, but can tell that to Bills Grateful and Popular, the King gives his Consent to them.—— But if this way be found out, that Bill should be thrown by, it may be hereafter said, they were forgot and laid by, and so we shall never know whether the King would pass them or no. If this be suffered, 'tis in vain to spend time here; and 'twill be a great Matter to find time to redress it. I move therefore, that a Message be sent to the Lords for a Conference, that some way may be found out to give us Satisfaction in this great Matter.
'I do concur with the Gentleman who spoke last, that Parliaments are prorogued and dissolved by the King; and now here is a new Way found out to frustrate Bills. The King cannot take one part of a Bill, and reject another, but gives a direct Answer to the whole. But to avoid that, this Bill was never presented to the King, a thing never done before. I desire we may send to the Lords for a Conference to represent this Innovation, and that a Committee be appointed to draw up Reasons for the Managers.'
'I was a Friend to this Bill, and I agree in all things concerning the weight of it. The laying this Bill aside, is such a Breach of the Constitution of Parliament, that 'tis in vain to pass any Bill, if this Miscarriage be not searched into. By the Constitution of Parliaments, all Bills but Moneybills, after they are past both Houses, are deposited in the Lords Hands; and 'tis below you to look after the Clerks for this Bill. If the Lords give you no Answer for the loss of this Bill, that is satisfactory; I would then send to them to know a Reason why the Bill was not tendered to His Majesty with the other Bills.'
Sir R. How.
'I would have you search the Lords Journals, and if you find no Account of the Bill there, then 'twill be time for us to go to the Lords to require Satisfaction.'
Sir R. Temple.
'I have not much to offer you, but I fully concur in the Weight and Consequence of this Matter, and you are to take all the Care you can to secure it for the future. Never any thing of this Nature was done before, but the Bill for Observation of the Lord's Day in the late long Parliament. 'Twas left upon the Table at a Conference, and stolen away. But 'tis not proper (I conceive) to take notice of this in a Message to the Lords, because the Miscarriage of this Bill was in another Parliament. The Matter must go upon a desire of a Conference with the Lords, concerning the Rights and Privileges of both Houses of Parliament; and then you may appoint a Committee to inform you of the Progress of this Matter.'
'I think the passing over the Enquiry after the Loss of the Bill of the Sabbath, in the late long Parliament, was the great Occasion of the Loss of this. Consider how many Interruptions Parliaments have had of late in the greatest Business, by Prorogations and Dissolutions; and another Way to gratify your Enemies, is to stitle your Laws, when they have a mind the People should have no Benefit of them, though they have passed both Houses. Therefore I move, &c. ut ante.'
Sir H. Capel.
'I differ only as to the Words. I agree to a Conference, but no more to be said, than to know what's become of the Bill; for the Lords are the Depositors of all Bills but Money. Without any other Words, I would send to the Lords for a Conference to know what's become of the Bill. I know but of three Negatives, but by this Proceeding here is a fourth Negative, which may destroy the Government.'
'Tis the best Way in this matter to observe old Methods; and the best Method to know the Lords Minds, is by Conference. I remember in the late long Parliament, the Lords sent to us for a Conference, and, at it, told the Roof of our House was falling on our Heads; but they sent us not a Message of the Danger we were in by the falling of the Roof, but desired a Conference about a Matter of great Consequence. Therefore I would now send to the Lords for a Conference of Matters relating to the Nation.'
'I would say this, We desire a Conference with the Lords concerning the Constitution of Parliaments in Matters relating to passing of Bills.'
Sir T. Littleton.
'This is a thing of as high Weight as we can confer upon. Therefore I would not do less than in a Thing of lesser Moment. Let a Committee meet, and then agree of the Subject Matter; till then you know not what to say at the Conference, and 'twill be Monday at the soonest before you can do it. I shall offer another thing at the Conference; I would offer the Lords the Consequence of this way of Proceeding, and to desire the Lords to put the Thing into a Way of Examination, that the Complices may be fit for Punishment. And at the same Conference, would desire a Committee of both Houses to consider where the Miscarriage lay.'
Danby's Case Reported, &c. The Account of Fitzharris, and the Libel read,&c Treby's Examination, &c.
Debate on Fitzharris's Examination. ; Sir J. Hartop.
'I humbly move, Fitzharris's Examination may be printed, for the World to see the devilish Conspiracies of the Papists.'
Sir W. Jones.
'I like the Motion for printing, nothing is in this Paper but what's fit to be printed. It fully makes out those Informations you have had before. And because we all know that since my Lord Stafford's Trial, People have been prevailed upon to believe the Plot not true, and this confirms Oats and Bedloe's Informations, I would have them printed, but not the libellous Paper which reflects upon the King.'
'I will not trouble you, but with that Part I had in this Affair. The Paper was read over to the King by Sir William Waller. Therefore according to the King's Command, I issued out a Warrant for apprehending Fitzharris, and Sir William Waller was to take care of the Execution of the Warrant.'
Sir F. Winnington.
'This is a Matter of great Importance, and we ought to acquit ourselves in it like wise Men. We that come out of the Country, hear that that Treasonable Paper which has been read by Sir William Waller, was to have been sent to many Gentlemen, they to have been seized thereupon, as Traitors in the Conspiracy; and it may be this was that new Plot. All we have is at Stake, therefore, how long or short our sitting is like to be here (the Trooper Harrison said there would be other Guards at Oxford) let not our Courage lessen. This being our Case, let us go to the bottom of this business of Fitzharris. Therefore I move, he may be sent for, and impeached. We know by Experience, when once an Accusation is in Parliament on Record, and in the greatest Court of the Kingdom made known, Malefactors have not been cleared; and you have had Justice; therefore I would have care taken that this Man be impeached of High-Treason, and it may be, he will relent and tell you all.'
Sir R. Clayton.
'When Fitzharris's Examination was taken at Newgate, he asked whether he had said enough to save his Life? I told him, I thought he had not dealt ingenuously, unless he would tell what Counsel he had for drawing and modelling the Paper; and I bid him be ingenuous in the whole Matter, and I would come and take his farther Examination. But the next Day, after he promised this, he was removed out of our reach into the Tower.' Impeachment Ordered.
'Twas then moved that Secretary Jenkins should carry up the Impeachment to the Lords.
'The sending me upon this Message, &c. reflects upon the King my Master; and do what you will with me, I will not go.' Many called, To the Bar, to the Bar!
Sir T. Littleton.
'I would not have said one Word, but that the very Being of Parliament is in the case; 'Tis to no end to sit here any longer if this be suffered. There can be no Ground, Reason or Thought, to bring the King in question, or Reflection upon him in this Impeachment, or on the Secretary. But for him to say, Do what you will with me, I will not go with the Impeachment, is what I never heard said in Parliament before. Let the Words which fell from him, be written down before he explain them, according to the Order of the House.'
Sir G. Hungerford.
'I never heard such Words before, that the whole House of Commons should reflect upon the King, and that he will not obey your Order; let the Words be written down.'
'The House will be contemptible to the extremest Degree, if this be suffered. Such a thing as never was in Parliament before, that the whole House should reflect on the King, and for him to say, Do what you will, I will not go.'
'I said no such thing, that the House reflected on the King; but that I take it as a Reflection upon the King my Master.'
'His Words were, This had not been put upon me, but for the Character I bear.'
At last the Secretary's Words were thus stated: 'This Message is put upon me for the Character I bear. I value not my Life nor Liberty, do what you will, I will not go.'
'I say this is put upon me, to my Apprehension, for the Character I bear; and do what you will with me, I will not go.'
Sir W. Joned,
'I am sorry to see any Member behave himself at this rate. This Deportment confirms me in the opinion of the Design of some Men, to suppress the Honour of this House. There has been a Book written (which I hope in time will be enquired after) that the House of Commons sprang first out of Rebellion in Henry the Third's time. This goes on this Day in the same method. Let a Man be of what Quality he will, if he be too big to be your Member, he is not to be chosen. To scorn the Commands of the House, and to be too big to be a Messenger of the House of Commons; Secretaries are sent of Messages every day, and is he too big a Messenger to accuse a Person of the Popish Plot? His Words seem to import as if the King would not have the Prosecution of the Plot. If his be so, sit no longer here, but go home. His Character is great, and he may be privy to Things hid from us, by this extraordinary Carriage. Are we come to that pass, to be dealt withal, as none of our Predecessors ever were? If my Brother or Son dealt with the House thus; I would call him to account. For aught I see, he provokes the House more by his Explanation, therefore pray go on.'
'I am as ready, and think myself as much obliged to obey the Commands of the House, as any Man here. The Office I have excludes me not from it; but the thing I stand upon is, that the Motion was carried on in Ridicule. I have an honour for this, and ever had for all Houses of Commons; but in this Message I must and will be excused.'
Sir H. Capel.
'Ridicule is not a Word proper for a House of Commons; and what is appointed by this House, is done with all Gravity, especially where the Life of a Man is concerned. We are in an unfortunate Age, now Things come to more light than before, that it should be said that Impeachments strike at the King, that the Duke's Bill, &c. is aimed at the King; I am sorry to hear it said here, as well as in other Places. This Employment he is put upon, is for the King's Service, and he tells you it reflects upon the King. All is reversed, if what the Commons do, must be as if it reflected upon the King. I have all imaginable Respect to the King: But, Sir, we are in a Ship, and we have to do with the Master, and he with us. If this Gentleman would make any sort of excuse, I would willingly accept it; but he has not taken off his Crime, but rather aggravated it. If he has nothing farther to say, he must withdraw, and then you'll have a Motion made for the Honour of the House.'
Sir T. M. (perhaps Mompesson.)
'I know no other difference in any Person here; if the Secretary said, I thought it reflected on the King, a Man may be mistaken in his Thoughts; and in case it be so, he would suffer any thing under that Reflection. He said it was his Thoughts that the carrying the Message was a Reflection upon the King, and in that case would suffer any thing, rather than a Reflection upon the King and his Character.'
Sir J. Ernley.
'Tis an ill thing to stumble at the Entrance; I hope the Secretary intended no Dis-service to the House, but on a Mistake: I did apprehend it, and some others, that it was in jest. But in jest or carnest, one ought to obey the Commands of the House; but every Man cannot subdue his own Heart. But I would know upon farther Consideration, whether the Secretary will undertake this Service or no. I am the worst Advocate in the World for any obstinate Person. But I humbly offer, whether the Gentleman will serve you or no before he withdraw.'
Ernley removed from his Place, and whispered with the Secretary.
'Since the House is so favourable as to hear me, I shall only say, that I did apprehend sending me with the Message to the Lords, was a Reflection upon the King; if I did apprehend it a Reflection upon my Master, I could not but resent it. I am heartily sorry I have incurred the Displeasure of of the House, and I hope they will pardon the Freedom of the Expression. I apprehend it a Reflection upon the King, and no other Consideration whatsoever induced me to say the Words.'
'I look upon this has come from the Secretary, as so great a Reflection upon the House, that he ought to come to the Bar upon his Knees, and ask Pardon of the House.'
'We are all subject to Infirmities; seeing that the thing is so, the Secretary could not apprehend any Reflection on the King by sending him with a Message, but he might apprehend it on himself; it was a little smilingly moved: but since he has explained himself, I would have this, &c. past by, as I would on the like occasion desire for myself.'
'The Gentleman's Fault is a great one, but that after he has begg'd the Pardon of the House, I am willing to pass it over. Though it be a great fault, yet 'tis too little to give occasion of a Breach at this time.
'I am ready to obey the Order of the House, and I am sorry my Words gave offence.'
So he went on the Message.
'We ought all to give God thanks for this Discovery of Fitzharris, next to the first Discovery of the Plot. It is a great service to the Nation, and 'tis not the first that Sir W. Waller has done. If ever the Thanks of the House was deserved, it is for this Discovery; and I move Sir W. Waller may have the Thanks of the House, which was ordered accordingly.'
Saturday, March 26, 1681.
Debates on the Exclusion. ; Sir R. Clayton.
'I confess I have been full of expectation of some Expedient to secure the Life of the King, and the Protestant Religion, without the Bill for excluding the Duke, &c. My Expectation is from those who opposed the Expedient of the Bill, (for I can call it no otherwise) I have in my weak Judgment weighed all Expedients I have heard of, and they seem all to me to be a Breach of the Constitution of the Government, and to throw us into Disorder and Confusion. I have heard that it has been an ancient Usage that Members have consulted their Cities, Boroughs, and Counties in any thing of Weight, as well as giving Money, before they resolved it. The Practice was good, and I wish it were continued; and we can discharge our Trust no better, than in observing the Direction of those who sent us hither. I received an Address from the City of London (having the Honour to be one of their Representatives) in the Matter of this Bill of excluding the Duke, &c. I heartily wish some Expedient may be found out to save our Religion without it. But I must pursue my Trust, therefore I move a Bill may be brought in to exclude all Popish Successors, and in purticular, James Duke of York.'
I have the same Obligation upon me, as the worthy Person that spoke last, from the County I have the honour to serve for. I have been long of opinion, that nothing but this Bill can secure us from Popery. In the long Parliament, 'twas said, that the Duke was a Papist; and the Danger of his Power will be more now, and every day informs us of the sad Consequences of it. I should be glad if any thing but this Bill could secure us. I know nothing else can, therefore I humbly move for it, &c.'
'The Security of the Protestant Religion, and the Preservation of the King's Person, is of so great weight, that we should not have staid to this Day to exclude the Duke; but I am sorry to hear that Language, that because the King has said in his Speech, he will stick to his former Resolution in not altering the Succession, &c. and proposes a kind of Expedient, &c. but in this we are not used as an English Parliament, but a French, to be told what we are to do, and what not; 'tis the greatest arbitrary Power in England to cow a Parliament, which may be was in design to bring us hither: but be we called to York, or any Part of England, I believe we shall be the same Men we are here, a d were at Westminster. My Lord Danby dissolved the Long Parliament, and said, he had spoiled the old Rooks, and had took away their false Dice; and then started in the new Ministers, and they shuffle and cut again, and dissolve Parliaments, till they can get one for their turn. I have heard much weight laid upon disinheriting the Duke; sure no Father would scruple to disinherit a Son, or a Brother, nor turn away Servants that would ruin him. If Bishops and Counsellors would speak plain, they cannot answer deferring our Security so long. But neither the Ministers of the Gospel have endeavoured the Preservation of our Religion, nor the Ministers of State the Government, both acting against Religion and Safety of the King's Person: And I have no expectation of our Safety, but the Bill to exclude the Duke; and therefore I move for it, &c.'
'If this Debate must be proceeded in with the Regularity and Circumspection it ought to be, you have transgressed the Order of the Day already. Several Gentlemen tell us that there is no Expedient, but none tell us what is. All Men believe the Religion of the Duke is as fatal a thing to the Nation as can be, should he come to be King; and what do they deserve that perverted the Duke? But let us consider what depends upon this House, and let us proceed like Men. If we are of opinion, that the Exclusionof the Duke is the best way to preserve Religion, this House cannot do it alone; if we cannot have that best way, we are guilty to our own Country, if we take none. If a Man be sick, and so ordered that nothing must be taken but by Direction of three Physicians, and two are for giving him the Jesuits Powder, and one against it, he thinks he does the Duty of his Profession; but they all three not agreeing it, must the Patient take nothing? And we are but one part of the Legislative Power. But for Expedients, I remember in the Dutch War, the House went into a grand Committee, to consider Expedients for raising Money, to save a Land-Tax. A Man, whoever he be, that proposes an Expedient, will desire leave to make good that Expedient, and must speak, it may be, often to it; but if it prove to be none, that Man will be trampled upon. A Committee of the whole House will be most proper for this purpose. If there be a Dispute which Question shall take place, if the first be denied, the other may take its place; but not one to exclude all the rest; as this Bill will do. Let it be Exclusion or Limitation, or what it will, your Order is general, to find out means against Popery, and Preservation of the King's Life. When Men press on so fast, they may come late into their Inn by tiring their Horses. Let a Grand Committee try Expedients, else 'tis not consultare, but dicere. I am of a contrary opinion of having this great Matter debated in the House, and for the Reason I have told you; and if, Gentlemen, you will do reasonably, a Grand Committee is your way to proceed in.'
J. S. (perhaps Smith).
'You have had Motions proposed for Expedients, but there is not a word of Expedients in the Order, and that answers it. (The Order was read) Those who were here present when the Order was made, have left it free for a Bill, or any other thing, and therefore they are not tied to have Bills, or offer Expedients against Bills. To the Simile of the three Physicians, that two could do nothing without the third, though one was for one thing, and another for another; if the case be such, that the two, in the Judgment of the third, did offer nothing to the sick Man but what was mortal, he ventures upon his own Disreputation to join with them. However, the three Physicians do not agree; we never yet saw any thing from the Lords in answer to this Bill; all Expedients have hitherto been to increase our Fears of the King, and to hasten our undoing; and when all was at stake, to have Parliaments dissolved, that was an ill Expedient. Those who were near the King, and altered their own Judgments, and are come over to this Bill, &c. they are all put away, and those about the King now are for Expedients. The Council of the Jesuits, they have their End, by disappointing the Kingdom, and by raising the Fears of the People, either to take up with a false Security, as good as none, and so to impose Popery upon them that Way; or to bring the Kingdom into disorder. When Religion, and Laws, and all are at the dispose of a Popish Successor, the Kingdom will be in so great disorder, that the Protestants will not be able to enjoy them quietly: the Papists have no surer way to effect their End. For the House to go into a Grand Committee, 'tis a Motion of great weight. If you deny it, it looks as if you would precipitate and deny free Debate: If you accept it, you will lie under the Inconveniency of Delay; and who knows how long we have to sit? If we were sure of our Time, to fit two or three Months, I would be willing to go into a Grand Committee. But as to the ill Umbrage of refusing a Committee, 'tis not like other cases. I would have an Instance, if ever in a thing of this weight, the House went into a Grand Committee. This Matter of excluding the Duke, has been depending two Parliaments, and any other way for our Security would have been accepted. Nothing else could be found out the last Parliament, the whole Kingdom was satisfied with nothing else. And now what reason is there to go into a Grand Committee, for a thing so often debated to the bottom? No Man can deny, but a Grand Committee is proper, when something of an Expedient is offer'd; but to offer it generally, is as if the thing was never consulted nor debated before. I never saw any Expedient but this Bill, nor any Reason offer'd against the Bill, but set it aside, and think of Expedients. Therefore pray proceed according to the Order.'
'If any Gentleman have Expedients, I desire he would propose them; if they be of any weight, they will deserve well of the House; if it seems to them they will give us Security, I would be glad to hear them.'
Sir J. Ernley.
'When the Motion was first made for going into a Grand Committee to hear Expedients, &c. I did then second it for this Reason; because of the Honour of the Place I serve in. I did understand by the King's Speech, there were Expedients. I am unwilling to determine the Sense of any Man, who am of the weakest: But a Motion was firsted and seconded for a Committee of the whole House; and when this is done, I shall offer something.'
T. B. (perhaps Bennet.)
'I must speak again to that Question of a Grand Committee, pray keep to the Order of the Day. Expedients that have been moved for already, as the Jesuits Powder for an Ague, &c. but our Disease is a Pleurisy, and we must let Blood. Let us go to what will do our business, and it may be we must have other Expedients to fortify the Bill. I would have the House rightly understand, that those who are against going into a Grand Committee, are for excluding the Duke from the Succession; and those who are for a Grand Committee, are for him to succeed; and put the Question, if you please.'
Sir F. Rolle.
'To exclude the Duke from the Succession, &c. that is a good Expedient to prevent Popery; pray let that, or others that shall be presented be considered.'
Sir T. M. (perhaps Mompesson.)
'If there be but one Expedient offer'd, I do not think, that Ground sufficient to go into a Grand Committee to consider it; but possibly there may be several. This Bill is agreed to be an Expedient; and I have known, that in a Business of less weight than this, you have gone into a Committee, &c. If an Expedient must be offered in the House, you cannot but allow Gentlemen to make Replies in a fair Debate, or answer Objections. And if you in the House will depart from that Form, the House or Committee are equal to me. But our Debate is broke; one Gentleman said, he would be content with a Committee, if not intended for Delay. I do not doubt but this Day will have its full Effect. When 'twas moved on Thursday last, for this Day to take into Consideration the Preservation of Religion, without naming Bill or Expedients, it gave a great Credit to your Work. I would have no Discouragements upon People that have Expedients, by not going into a Grand Committeee.'
'We are perplexed in having several Questions on foot. I shall put you in mind, That this Bill now proposed, is no new nor strange Thing. Our Business, I suppose, is to find out Expedients to preserve the Protestant Religion, and the King's Person; here is a Way has past two Parliaments already; a Way, no reasonable Objection has ever been made against it; and a Way rejected by the Lords in gross, without offering any other. But I doubt, if other Expedients be tried, if they prove false, we shall endanger the Protestant Religion. Some have said, that Gentlemen apprehend they have Expedients; why then may they not be propounded, that the House may judge whether it will be worth going into a grand Committee to consider them? But if Gentlemen will have it their own Way, or not at all, I'll tell you how this looks, as if they were something one way, and nothing another: But he does not discharge his Duty to his Country, that does so; therefore if Gentlemen have any Expedients, pray let them offer them.'
Sir J. Ernley.
'If the House be of a mind to enter into a Grand Committee, I shall offer my little Mite, as 'tis every Man's Duty to offer Expedients that has any. I doubt not but other Men have, and better than me; but if we go not into a Grand Committee, I shall offer what I have. I do apprehend by the Bill proposed, that 'tis a Bar to the Succession of the Duke, and places the Succession in the next Heir I shall propose, if you please, not tho Name of King, but the Power, as a Regency, in the next Heir (fn. 1) 'Tis no new thing in Spain and France, and (God knows) we have seen it done in our Kingdom. If the Administration be placed safe in the Person, that may have no Power to resign to the Duke, and may have full Power and Authority at the Death of the King to call that Parliament which sat last, who shall have Time to sit to confirm this by Act of Parliament: I hope this may be done, and may be done safely, if you can contrive such a Way.'
Sir N. Carew.
'As I understand, 'tis propos'd, that the Government shall be in Regency during the Duke's Life; I would be satisfied, if the Duke will not submit to that, whether those that fight against it, are not Traitors in Law.'
Sir W. Pulteney.
'I think what you are upon, to be a Matter of great Weight; some Expedient has been offered you, I believe as yet but a crude one, and I cannot imagine will ever be an effectual one. He that moved it, tells you, he hopes, when drawn into better Form, it may do what you desire. It excludes the Duke, and in his Place, the next in the Succession shall have the Regency in him. — But our last Act left it in the Law. Consider what is a Regency; I never heard of it, but of a Prince in Possession, in Minority, or Lunacy; and it has generally been very unfortunate. But to talk of a Regency in futuro, in Condition and Limitation of time, I never heard of. This Expedient does not answer the King's Speech, nor your former Bill; it makes the King but a Shadow, and divides Person from Power; our Law will not endure it. The Person divided from the Power, both will be courted; and who that next Heir will be, we know not. The King leads you to consider Expedients, but such as will consist with the Safety and Dignity of Monarchy. This supposes two Kings at the same time, one by Law, and another by Right. Portugal gives us some instance of Regency, where the King was put into Prison for Miscarriages in the Government, and his next Heir made Regent; but there is a vast Difference in these two Cases. 'The King of Portugal was set aside for personal Miscarriages, not for being a Papist: and which is another thing, that was present, this is to come. If this Question be to let the Duke in, and then make a Question whether Allegiance be due to him; but I am afraid, that unless we be true to those we represent, from whom by express Direction, most of us are to pursue the Bill, &c. we shall not be avowed in what we do. The Bill, &c. has been under Consideration of all the People of England, and perhaps all the Protestants of Europe; all the Wits of Learned Men, have made their Objections against it, yet notwithstanding all People are still of the same Mind.— And now we run upon the most misshapen thing, which it may be two or three Years before we understand it, and we may expect to have an Operation of it, no body knows when, I see very little weight in it, unless improved by some other Person, therefore I am for the Bill.'
Sir T. Littleton.
'We are flying at a great matter. To fight against the D. if he should be King—God forbid.——We have been told three or four times of Directions Gentlemen have had from their Principals, to be against all those things of Expedients, and to insist upon the Bill of Exclusion, &c. I would not have that way much cherished, 'tis an uncertain thing; and no Footsteps remain of any Papers from their Country. I take the meaning of that going down, is to consult their Neighbours for Direction what to do. I hear talk to-day of Parliaments of France, but this way is as dangerous; like the States of Holland, to consult with their Principals before they resolve, is most unusual and of very dangerous Consequence. A Regency has been proposed to secure the Administration of the Government in Protestant Hands, so as not to alter the Constitution of the Monarchy; and this alters the Constitution of the Monarchy the least imaginable. A Regency in room of a King, and the Monarchy goes on. We have had Regent Protectors, call it what you please, Primus Consiliarius, in case of a Minor Prince; but I propose not this. If you alter the Government, I am against it; but here is offer'd a Regent in place of the King, or transferring the Government. But it may be said, where shall the Duke be all this while? That Point I think is pretty well over, there is no design of Seclusion—The Lords would have banished him 600 Miles from England—The Duke has an Estate, and he, as all Men besides, loves it, and will not part with it, and will do nothing to forfeit it. But your Bill of Exclusion secludes the Duke, and the Crown then is to fall as it does fall. What is then the Case? You must imagine, either his own Daughter will take up Arms, if the Duke attempt the Crown, or some body else will, to keep him out; and that will raise such an Anger in the Duke's mind, whither will they shelter themselves? Not under his Daughter: they must naturally shelter themselves and run into Arms. Cromwel's way was to keep up an Army of Sixty Thousand Men for his Security, especially an Army flesh'd with Victory— And they that have it, will keep it. We are not in the Condition we were formerly; when the Lords cherished their Tenants by good Leases, they could raise an Army, and send them home to their Houses when they had done what they were raised for: But we are now in another way; raise an Army, and they will think of their own Interest to be kept up. But if it fall out thus, your Bill leaves it very loose.— As soon as this Bill is pass'd, suppose the Regency established in the Princess of Orange, or the Lady Anne, and in the same Law a Commission be sent over to take an Oath from her strictly to execute this Law, you are then not left in that loose manner you will be by the Bill, &c. 'Twill be a far less matter for her to save a Family, before Misfortune come upon it, than to take the Government upon her afterwards, in the trouble of an Opposition. But it may be said, what needs all this, 'tis just nothing but retaining the Name of K. in an exiled Man?—But 'tis less violation in her to govern in her Father's Name, than to take the Kingdom from him. It may be wondred, why in Portugal, upon deposing that King, there was a great Debate of the three Estates (though they hold not the Proportion as they do here.) In this great Debate, the Commons were for Don Pedro to be King, the Nobility to have him Regent, the Ecclesiastics demurr'd; but at last both came over to the Nobility. But Don Pedro stuck here, and would still leave his Brother the Title of King, and would leave nothing of shelter to force Nature too far. There are Reserves in the King's Speech, I cannot but take notice of by the way. There is another thing to be considered. Some will be paying a deference to the Sacredness of a Crown, for Government's sake. This Objection looks like something; He is like to be five hundred Miles off, &c. and' a Law to take up Arms against him.—How was that Law, that the King and Parliament have power to dispose of the Crown? It was then an Opinion amongst Lawyers, that the Crown was unalienable; but when that Law was made, that Opinion was damn'd under a Penalty, though 'twas a standing Maxim before that Statute was made. If so, this new Act will be a Warrant for what is proposed, as that was for the other. For my part, I have had the ill Fortune to have the Wind in my Face, and to be against the general Opinion and Stream of the World; and having had for some time no share in the Government, I may speak possibly more freely than they that have. 'Tis a great Crime to spy things too soon, which makes men apt to run from one Extreme to another. I have proposed the best Expedient I can, and most safe; but I am afraid, if you do nothing in this great Affair now it is started (I'll grapple with neither of the Expedients) but if you do nothing but let the thing lie loose, you'll gratify the Jesuits by our confusion, and the Commonwealths-men to shuffle the Cards again: but if you go into some Medium, both these fort of men will be undone.
Sir W. Jones.
'I have heard with great Attention this very learned and able Gentleman. I am really of Opinion, if any better Expedient could have been found out, than what has been proposed, that he, as soon as any Gentleman, would have proposed it. But I am amazed, that so learned a Gentleman should not see through this Expedient. That which I take for the Expedient, is, the Duke to retain the Name of King, and the next Heir to be under the Title of Regent or Protector. What does he mean by next Heir? For any thing I know and believe, it is the Duke's Daughter; but it may be the Duke may have a Son. Either I have a great Cloud upon my Understanding, or this follows, that if the Duke have a Son, he shall at a Day, a Month, or a year old be Regent. Suppose the Princess of Orange come over, and she die, (the Prince of Orange has no Right to the Regency) and she leave a Child, and that Child be Regent, that Child must have a Protector, and so there will be a Protector of a Protector. But, Sir, we are told, that nothing but to keep up the Greatness of the Government makes them go from the Bill of Exclusion to this Expedient. But is it so great and pleasing a thing to wear a Crown, and be called King, and have no Authority? It is much worse then to lose an actual Crown, and the Possession of it. If the Bill pass, and the Duke be banished 500 Miles off, it must be out of England—if the Name will please him, in Civility beyond the Sea he shall be King, and it will be as much to his purpose beyond the Sea to be called King only, as here.——But for the Security of his Estate being here; he that would venture the loss of a Kingdom for Religion, will his Estate too, that's but a weak tie. It is less injustice to take away the Crown and Power from him, than to have of both but the Name. If you allow the Duke the Name, it will imply a Right, therefore for that to be used as an Argument is strange. But why is this Contention, and all this ado, I wonder, for an empty Name? But I am afraid this Expedient is a kind of Jesuits Powder, (I do not think the Gentleman's Intent or Opinion is for the Jesuits) but a wise Man may over-do sometimes.——If you do not exclude the Duke's Title, the Duke is King still, and then will learned Lawyers tell you, that by 1 H. 7. all Incapacity is taken away by the Possession of the Crown. If you take not away the Descent of the Crown, and that the Duke has a Title to be King, then without doubt all Incapacities fail;—but if the thing may be effectually done, I am willing to exclude him the Name, as well as the Power; but Lawyers know no distinction.—— When the Lady Anne comes to be Regent, not only Nature, but Conscience will put her upon giving Cæsar his due; and perhaps that Text some of our Divines will preach upon. They'll say that the Parliament by what they have done, acknowledge a good Title in the Duke. But if he be King; as the Parliament allows him to be in Name, he has Right of Descent, and so will be restored to all the Rights of King.—An Argument upon Queen Mary like this, restored the Firsts fruits and Tenths.—Another thing perhaps may come from them that proposed this Expedient, (I do not beI eve it came from that Gent. &c.) if you had pass'd the other Bill, a great many would not submit to it; but if you pass this, if the Duke have Right to be King, and be kept from the Administration of it, I doubt whether I shall fight against him. And the Papists will say, you have got a Law to separate that which is inseparable. I would, if I were as the Duke, have this Bill to perplex my Opposers, rather than clear one. He has told you of an Army to maintain the Bill, &c.—which will not soon be laid down. But why an Army? —If there must be an Army for your Bill, there will be four Armies requisite to maintain the Expedient.——A Protector has been proposed, not like that of E. 6. who was little more than the now Lord President of the Council ——But certainly they who proposed the Expedient, would have by it the same Power of letting in the Duke, as of keeping him out. Therefore I move to lay aside this Consideration, and take up the Bill as has been moved for.'
'I think it is fit we should present Reasons to the King for passing this Bill of excluding the Duke, &c. I do think that the Administration of the Government has been in such Hands since the King came in, that tho' the Ministers have been changed, yet the same Principles remain to this day, though some have been removed.——The breaking of the Triple League, the taking of the Dutch Smyrna-Fleet, &c. The King of France makes War for his Glory, and we for nothing but to get Riches to make the King absolute. Such a Violation was done upon the Rights of the People as has been done.'——He was called down to Order——
'A Question so extreamly well spoken unto, to be interrupted with any angry Question, is not very decent at this time; what is spoken of, is Matter to be enquired into another time, though the Gentleman does it with a worthy Intent. If the Gentleman have any thing élse to propose, pray hear him.'
L. Gower goes on.
'I intended to move you for Reasons to induce the King to pass this Bill. The strange and dishonourable Retrenchments made in the King's Family.——He is surrounded by the Duke's Creatures. — 'Tis not safe for the King to part with any one Minister, unless he part with all; and when these Men have got a Bank of Money for a Popish Successor, then will be the time to take away the King.'
Sir F. Winnington.
'This we are upon is a Matter of great weight and difficulty. Let any Man that can, maintain this Expedient, or give you a new one.'
Sir T. M. (perhaps Mompesson.)
'I have heard with Patience this Expedient, which has been well offered, and I believe mistaken by the Gentleman who answered it. I must say this, your Question and your Business is Religion, and I have given as good Proof of my Zeal for the Protestant Religion this twenty Years as any Man has; and I have been for this Bill of excluding the Duke, &c. I am of Opinion something must be done to secure Religion. For the Point of Law mentioned, if the Law be such, That Dominion must run with the Name of King, that single Reason is to carry the Debate. But if I answer not that, I am at an end. But sure those Words that can disinherit a King, may make this Expedient Law. I would not rise now, if I thought the Bill to exclude the Duke, &c. could pass; my Grounds are but Conjectures. The last Parliament, I did think this Bill would pass without greasing the Wheels. The Condition of England is thus: We do need one another, both King and People, and we have need to make use of a Parliament to assist one another, to relieve us in the Difficulties we are in. If the Duke should be King, he will need a Parliament, and so will the People. In order to this, if another Expedient can be found out as like this, though not the same, which no Objection of Law could destroy, he would do the King and Kingdom great Service and Advantage who would produce it. In this Necessity we are like two great Armies encamped upon two Hills, and neither dare remove, not for want of Valour, but from their Reason: He that has the last Loaf stays longest, Necessity compels the other to decamp. At last it must be one side or other, or else England will have the worst of it. But if none will venture to clear the Matter in point of Law, I am answered. If any could alter that Bill, that it should not be the same we have had twice before, I should like it. I like this Expedient offered you, for 'tis a Bill of Exclusion, and so strong a one, that the Duke may chuse the first rather. I am for the Nail that will drive to do our Business. If Gentlemen have other Thoughts, pray so contrive it, that we have one Bill or t'other.'
'All the Expedients I have heard yet, are like a Cucumber, when you have well dress'd it, throw it away. These Gentlemen tell you, they will bring in a Bill of Excluding the Duke from the Regency, &c. This Proposition is either honest or not; if it be honest and without Design, then all the Dispute betwixt the King and Us, will be, Whether the Duke shall have a Title to the Crown. But I hope the King will rather gratify the Nation than the Duke. If this be nor honest, and People about the King circumvent him, they will find Means from Day to Day to divert him. Why was England so fond of Calais, but to have some Footstep into France? And so this Bill, let the Bill pass, and all those Gentlemen who have Dependency upon the Duke, if he come to the Crown, will change Matters'
Sir F. Winnington.
'A worthy Member not being satisfied with Arguments of Law against the Expedient, that calls me up, as in my Profession. The Question about this Bill of Exclusion, that 'tis lawful in Conscience, no Man will oppose: The great Opposers of it in the Lords House, agreed it lawful when they threw it out.— Not Jure Divino unlawful concurrentibus iis qui concurrere debent. Some Gentlemen told you, their Country gave them Instructions to press this Bill of Exclusion, &c. Sir T. Littleton said, it was dangerous to take Instructions from the Country; but I say, 'tis much more to take it from Court. Parliaments formerly upon any extraordinary Matter, staid, and sent their Members to consult with those who sent them. I am not subjugated (when I am here) to what the Country does propose. I am as much against a Republic as he that fears it; but I am a Protestant. I say, I know Sir T. Littleton to be of that Experience and Reason, that if he go away satisfied in this Matter, he will do all the good he can in the Post he is in. But to keep close to this Question; it being allowed by Law, That an Exclusion of the Duke from the Crown may be; the next Thing is to consider the Expedient of the Regency proposed. The same Authority that can make a Descent of the Crown, may modify it. He argued to shew that the Regency would make the Duke insignificant in the Administration of the Government. Now the Question is, which is the most practicable. We Lawyers are aptest to go on the strongest side, and to call every thing Prerogative. I'll put you a Case; . . . . being in King James's time, the Sheriff of —— there was an exception in his Commission, that he should not keep the County-Court of —— but should have all other Exercises of his Office. But the Judges resolved he was Sheriff to all Intents and Purposes, and that he could not be hindred keeping the County-Court. An Act: of Parliament against common Sense is void. To make a Man King, and not suffer him to exercise Kingly Power, is a Contradiction. Some Clauses formerly in Acts of Parliament, were flattering Clauses to satisfy the People, and not let them have the thing. Should this of the Expedient be an Act, 'tis Nonsense, and may be said hereafter, the House of Commons were outwitted. I owe the Duke Obedience if he be King; but if he be King, and have no Power to govern, he is the King and no King. I have urged this to shew, that this is no Expedient, it blears only Peoples Eyes, and is no solid Security. To say the Duke values his Estate, which he may forfeit, &c. He loves a Crown too very well, therefore you are not to arm your self in Point of Conscience, but in Point of Reason. The last Parliament I did see dissolv'd, by the Management of the Papists and the Ministers; so that without this Bill of Exclusion, our Ruin is irresistible. If the Duke come to the Crown, he brings with his Religion Merum Impérium, and that made me fond of the Bill; but if by Law the Duke never was King, there is no Case of Conscience lies upon us in his Exclusion. I will only make this Observation of the King's Speech, in relation to this Question—And if it be practicable, the ridding of ourselves quite of that Party, &c. and not to lay so much weight upon one Expedient, as to determine all others, are ineffectual. The two main points (it seems) the King doubts himself, and all this, delivered by the King in great Wisdom, is clipt off to this Expedient of the Regency. You see now we come to Expedients; the Ministers have had two Parliaments to consider it, and now we are come to this Expedient of the Regency. I find no security in Law by this Expedient; you take away nothing by this Expedient, and therefore I hope the Bill of Exclusion will pass. I hope that Reason, and not great Offices, will take Men off from their nemine contradicente. I speak this as if I were a dying man, and humbly move for the Bill, &c.'
'I have it in command from my Country, That they apprehend no Expedient to secure us from Popery, but that the Remedy will be worse than the Disease, unless this Bill. I have heard as yet no Reason given against it. But there is an aliquid latet. If the Duke be not set aside, I am sure the Government will be; and therefore I am for the Bill of Exclusion, &c.
Sir T. M. (perhaps Mompesson.)
'I know not how far Sir Francis Winnington's Argument may be prest, what Bill soever we may have. Pray let us have the Law on our sides, that if the King should die, we may know whither we are to go. I think the King's Speech is penned as it ought to be penned; and should a King speak positively to what Laws he would have, we are an Irish Parliament, and not an English; but the King's Words are tender Words. The thing lies fairly before you, if any Expedient can be thought of, not to destroy the Monarchy; and if the next presented be not the best, not to refuse the next.'
'You have had an Expedient offered you of a Regency, &c. instead of the Bill of Exclusion, &c. Pray consider what this Regency is. 'Tis the whole Office of a King, to appoint Judges call Parliaments,' &c. This Power they would take away from the Duke. But if by Law they will reserve the name of King to the Duke, 'tis to bring a War upon us, and to bring the Duke in by force. This Regency must be supported by War, as well as the Bill of Exclusion. By the 13 Eliz. the Crown is not alienable by the King, but may be alienated by King, Lords, and Commons. And when that Statute was made, no Successor was named, to keep King James in awe; which I conceive was the Reason why none was named in the last Bill of Exclusion. Though we have been frighted out from that Bill by Prorogations and Dissolutions, yet 'twill not frighten them whose Reasons go along with it. And I am for that Bill, because all men are for it, and have sent up the same Parliament again that past it. But if you lead people into uncertainties in the Government (as this Project of Regency undoubtedly will do) the Court and the Country will be of a mind to lay aside Parliaments, because they are useless.'
Sir H. Capel.
'Peoples Eyes are now enlightned, and all the World are an informed People. The Papists care not who is King, if he be a Papist.' And so he proceeded, much to the same purpose as several Speeches in the last Parliament.
Col. G. Legg.
'I would not have spoken so much out of Duty to my Master, but for the Duty I owe to my Country. I owe a new Obligation to the King, for I am the Duke's Servant from the King. My Father was a Servant to the late King and this; and I have my Protection under him. I was bred in England, and for his Service at Sea. I know my own weakness, not being bred to the Law; but by inquiry I find, that the Doctrine of disposing a Kingdom from the Right Heir is damnable: and 'tis the Doctrine of the Church of Rome. I have heard, that in the 24 E. 3. the King demanded Advice of the Parliament, in matters relating to the Crown. The Answer was by the whole Parliament, they could not advise in any thing relating to the Crown, nor of Disinheriting him to whom they were sworn. The Fundamental and Common Law of England has made the Duke Heir to the Crown, if the King have no Sons. The Title of Hen. 4. was confirmed by Parliament, but he laid his Claim of Descent from H. 3. and it continued in that Descent till H. 6. and then the Parliament declared that those Acts were not binding, but unjust; and declared the Oaths of Allegiance to those Kings infamous and wicked; and so the Right Heir came in. H. 8. had Power to dispose of the Crown, by his last Will and Testament, to place and displace the Crown at his pleasure; yet all his right Heirs came to the Crown, though Jane Gray claimed it by virtue of that Will, and baited her Title with Religion. Queen Elizabeth made a Law, that whoever did maintain, that the Crown could not be disposed of by Parliament, should be guilty of Treason, &c. and for ever after of Præmunire. But since that, there is a Restitution of King James, which acknowledged him lawfully, rightly, and justly the next Heir to the Crown, and did beseech the King to accept of their Allegiance to him and his Posterity. And I think our Ancestors swore to the King and his Posterity, as well as we. 'Tis a great Happiness to this Nation that both the Lines are united, and that we are rid of the Misfortunes of the Barons Wars. We have had Attempts to turn the Government into a Republic: And who knows but that if you put by the Right of the Duke, the Revenue of the Crown being much upon the People, but that there may be Attempts to turn the Government into a Republic again? When my Father was in Prison in the late Troubles, an eminent Man then in Power, in Discourse with him, said, I have obliged you, and if the King come in, as I believe he will, then think of me; Look to yourselves when you are in the Saddle again: If once you divide, adieu to Monarchy for ever. If you keep out the Duke, what must follow? An Act of Association; I speak now for England, and for my Posterity, (I have seven Children.) How will this look? The King's Father murder'd, and his Brother taken from him? Will this take no Effect with the King? I wish the Duke many happy Days, but the King more from my Heart than the Duke. The King is a healthful Man, and the Duke is not. I am not barely the Duke's Servant, which makes me concern myself, nor out of pique of Honour would I do any thing to destroy my Posterity. Therefore I am against the Bill, &c.'
Sir W. Courtesay.
'That which calls me up, is to answer something that was said by the worthy Member that spoke last; I am for the Bill of Exclusion, (and was so the last Parliament;) because I am clearly satisfied there can be no Security without it: But I must so far agree with him, that this Bill (if it should pass) will not be a full and compleat Security, But, — Here being an Interruption by a Noise in the House, this Gentleman proceeded no further.
'This is the Day of England's Distress, and not only England, but upon this day's Debate depends the good Fate of the Protestant Religion all the World over. Except you expect a Miracle from Heaven, nothing else can save the Protestant Religion, but this Bill of Exclusion. I think I have said this many Years ago, That Popish Matches would bring in Popery at last. As to the Point of Law (spoken of) that will be interpreted according to the Strength of the Party—— But I doubt not, if we do our Endeavours, God will help us, if we have nothing left us but Prayers and Tears. We are in condition of Conquest or Compact, and so is all Government. Interest must defend this Bill, and not an Army; we are the Army. I have a Family as well as others, and where Idolatry must be set up, rather than my Children should breathe in such an Air, I had rather they were buried, or had all the Mischiefs in the World. Colonel L. ingenuously offered some things; but without this Bill you may sit down, take a Popish Successor, and renounce the Protestant Religion. I would break this Popish Interest, and then Interest will maintain this Bill. If once this Bill pass, and as in Queen Elizabeth's time Protestants are put in Places of Trust, you need not fear the Disturbance spoken of. Where ten were of this Mind, an hundred are now that will bleed for this Bill. In plain nglish, let the World see that the Protestant Religion is dear to us, and we shall have the Law on our sides.
Sir T. Littleton.
'I was mistaken by some Gentlemen in what I said: I shall be very short and tender of the time, because 'tis late. That of the Lady Mary's Regency obviated an Absurdity in the former Bill. If the Duke should have a Son, where are you then? The Lady cannot descend from the Throne, having possess'd it. But my Meaning was, that the two Princesses respectively should succeed in the Regency during the Minority of that Son. The Bill of Exclusion is so weak a thing, that 'twill need all the Props to support it: And a Train of Consequences will follow it. What is told you of Scotland, is worth your considering; if Scotland be not consenting to it, I know not how you'll obviate that. It unites the Papists of England and France, which we ought above all things to prevent.'
'He may be convinced by his own Argument. For by so much the easier 'tis for the Princess of Orange to descend from her Authority of Regent, so much the less is our Security. And for Scotland, the same Interest that passes this Bill here, will do it in Scotland, and in Ireland there is no need of it. By this Proposition of the Regency, all Commissions Military by Sea and Land, Church and Law, are to go on in the Duke's Name. And if all Dispatches under the Great Seal must go under his Name, we can have no Security. The Oaths of Allegiance and Supremacy can be taken to none but him; and if that be granted, That 'tis unlawful to take up Arms against the King or those commissioned by him — If that be not a true Proposition, I know not why that Declaration was made: It lies loose to me, I must confess this Expedient seems to me, as if a Man that scorched his Shins at the Fire, instead of removing himself farther off, should send for a Mason to remove the Chimney back. I have heard from Lawyers, That if a Man do make a Free hold Lease, to begin from the Date thereof, 'tis void. It would be more ingenuous for the Gentlemen to say, If you do pass the Bill to exclude the Duke, they will not be bound by it, they will have the Duke to succeed; and then I wish they would tell us what will save the Protestant Religion. If the Duke come to the Crown, will Gentlemen chuse either to be Papists, or burnt, or hang'd? I have no Disrespect to the Duke, if this Proposal could keep out Popery: But if I am to leap over a River, I had rather have no Staff, than a broken one, This can be no Security. If you leave it in the Power of the Council to make War and Peace, and dispose of Money, pray then where is the Government? Either they will be faithful, and keep the Law of Regency, or the King must be King but in Name, and they the Soul of the Government. I have heard the Expedients with Patience, and have not been over-hasty to put the Question. But I see no Remedy to save Religion, unless excluding the Duke: Therefore pray put the Question for the Bill, &c.'
The Question was stated.
'You have been moved to add to the Duke's Exclusion, all other Popish Successors. This is a Bill on purpose to exclude the Duke only. You may exclude all other Papists from succeeding, &c. in another Bill by itself. But I observe, that the Way to lose a Bill, is to clog it.'
'I shall only observe, that by the last Bill of Exclusion, if the Duke should turn Protestant, he will be excluded; and if the Princess of Orange turn Papist, she is not excluded'
Debate on the Lords throwing out the Impeachment of Fitzharris.
Resolved. That a Bill be brought in, to exclude James Duke of York, &c.'
In the Afternoon; an Account given of the Lords throwing out the Impeachment of Fitzharris.
Sir T. Littleton.
'I see by the Lords refusing this Impeachment, no farther Use of a Parliament. They will be a Court, or not a Court, to serve a present Purpose.'—
Sir W. Jones.
'In a Matter so plain, and which concerns the very Being of Parliaments, I am unwilling to make unnecessary Doubts. If an Action be brought in the lower Courts, it does not hinder that Action being brought in Westminsterhall, if no Judgment upon it; and it holds the like in this Case. Indictments were brought against the Lords in the Tower at Common-Law, and yet were no Impediment to their Impeachment in the Lords House; but here is no Indictment or Prosecution brought against Fitzharris. We have an Instance fresh in memory; The Lord Chief-Justice Scroggs, a Commoner, and not indicted at Common-Law, yet the Lords without any Scruple accepted his Impeachment, so that we need not spend our Time to search Precedents. Perhaps the Lords Journals were not made up, but our Members have taken Notes out of the MinuteBook—— by them we find the Lords have determined a great Point. The Lords Spiritual as well as the Lords Temporal have voted it, which we own not in this Judicature, nor I hope ever shall; and we are denied Justice by the Lords Spiritual, who have no Right to vote. This is doing a double Act of Injustice. And since the Lords have taken upon them to throw out the Impeachment of Fitzharris, let us vote, That the Commons have a Right to impeach in Capital Cases; and that the Lords have denied us Justice, in refusing the Impeachment. And after you have asserted your Privileges, then draw up Reasons for maintaining them. And if the Dissolution of the Parliament follows. it's the Fault of those Men who will not hear our Reasons, and in a Parliamentary way at a Conference shew how unwarrantable the Lords Actions have been in their Way of Proceeding.'
Sir Francis Winnington.
'If this Impeachment of Fitzharris was of so ordinary a nature as a Monopoly, &c. I should not press upon this Matter: But this is not an ordinary Accusation, but that which relates to our Religion and Property; and how the Bishops come to stifle this, let God and the World judge. I would know, if a Man be impeached by the Commons, and no Indictment against him, (only the Attorney-General told the Lords, that the King gave Directions he should be prosecuted, and no Record against him) whether this is a ground to deny our Impeachment? If the Lords will vote that the Commons shall not impeach him, they may as well vote they shall not be Prosecutors; but yet we will be so. This is a new Plot against the Protestants, of which Fitzharris is accused, and we must not impeach him; in this the Lords fairly say, We must not hear it. If this be the case, I desire you'll come to some Vote. You are willing to discover the Plot if you could. If the Attorney-General had prepared a Prosecution in an Inferiour Court, and they had proceeded to Judgment, then it is pleaded in Bar to the Judgment of a Superiour Court. If our time be short, (as I believe it is) pray do not delay to come to some Resolution; if the House be satisfied in it, pray make a Vote to assert your Right. A little while ago, when the Duke was presented for a Papist, the Grand-Jury you know was dismiss'd by Chief-Justice, &c. This seems as if the Lords were bound in Honour to justify the Judges Proceedings by their own. 'Tis a Reflection of Weakness in a Man, who doubts in a plain Matter, and if no Man doubts our Right, pray vote it so.'
Sir R. Howard.
'I am glad we are off from the great thing yesterday; I cannot believe but that the Lords have Judgment enough to have cause for what they do, and in this Case of Fitzharris's Impeachment; in this Matter, Precedents you need not search. This of Fitzharris seems to me to be a more dangerous Breath than usual, a Breath fit to be stifled; there is something in this more than ordinary. If there be so sacred a Respect to the common Trials of England in inferiour Courts, 'tis strange that the House of Commons should be below a common Jury. If in the case of Skinner, and the Fact done beyond the Sea, the Lords contended with the Commons about judging it, though it was an original Cause, this was no great Value of the Law of England. But it seems they value Fitzharris, to keep him from us. When I have heard in all the Speeches to-day, that the Duke does not go single,—— and have heard so excellent Discourses today of that Matter, I am loth to mingle my Weakness.—— But for such Council as this, the King hereafter will have no cause to thank them, for involving him in the Fatality of those Councils; as if they would make the Libel of Fitzharris the Copy of their Councils. Dangerfield was reputed a most infamous Person; yet if he would speak what he knew, nothing of Mercy was too big for him: But Fitzharris is a Man of no Infamy, and yet they hurry him away to the Tower, when he began to confess in Newgate. Are you so lost, that you have no Mercy left for the Protestant Religion? This is strange, if the Terror of his Condition make him confess the whole Plot, and he be taken out of our hands. We hear of other things, as that the French Ambassador had a hand in this Plot, which a Jury will not enquire into; their Business is only, whether Fitzharris be guilty or not guilty of the Indictment. I must confess, that with the Carriage of this, I have enlarged my Suspicion, for I cannot but suspect unusual Ways. The worst of Mankind, with all his Villainies about him, has been pardoned.— Is there in this any Provocation given by us? But something depends upon this Man, as well as upon the Bill to-day. When you was told by Secretary Jenkins, he would not carry the Impeachment, &c. and the House would make no Breach, by taking any severe Course against him, but past it over with Temper—— sure we must not lay down all Prosecution of the Plot, and say, that the Protestant Religion shall have no Mercy. Fitzharris may merit mercy by Consession; and if his Breath be stopt by the Lords, I am sorry that People will say, If it were not for the Lords, Fitzharris might have discovered all the Conspiracy; and the Protestant Religion might have been saved. I move therefore, that in your Vote you will not only say, That denying this Impeachment, &c. tends to the subverting the Constitution of Parliament, but of the Protestant Religion also. And I hope we shall proceed in this with the same Calmness of Mind that every Man does wish, who would not lose his Religion.'
'A Plot we all know has been on foot in England, and I am sure in Ireland too, and what Arts and Crafts have been used to hide the Plot? It began with Murder and Perjury, and false Subornation, and this of Fitzharris is a second Part of that. We have sent up an Impeachment against Fitzharris, and the Lords deny to receive it. In effect, they make us no Parliament if we are the Prosecutors, and they will not hear our Accusation; 'tis strange, when their own Lives as well as ours are concerned in the Plot. The same day we impeach Fitzharris the Lords vote, we shall not prosecute him.— Now when all is at stake, we must not prosecute. If this be so, Holland and Flanders must submit to the French, and they run over all. This is a strange Breach of Privilege, and tends to the Danger of the King's Person, and Destruction of the Protestant Religion.'
Sir T. P. (perhaps Proby.)
'This of Fitzharris is a considerable Confirmation of the former Plot; I call it the old Plot, but 'tis still new upon us. This is a Confirmation of the Design to murder the King, and the Duke consenting to destroy his own Brother and our King. I have often heard it whisper'd, that this Plot was Madame's Design at Dover. 'Tis plain that Justice Godfrey was murdered, and that the Army at Blackheath was to destroy the Protestants in Holland, and to awe the City of London. When Fitzharris was in an Inclination to discover what he knew, and two or three honourable Members went to examine him, this Man was fetch'd the next Day to Whitehall, and sent to the Tower, and so we were deprived of all farther Hopes of Discovery. We have received the Information he gave, and now that the Man may be in no capacity to discover farther, they stop his Mouth. I move therefore, that you will declare, That if any Judge, Justice, or Jury proceed upon him, and he be found guilty, that you will declare them guilty of his Murder, and Betrayers of the Rights of the Commons of England.'
Resolutions in the Case of Fitzharris.
Resolved, That it is the undoubted Right of the Commons in Parliament assembled, to impeach before the Lords in Parliament any Peer, or Commoner, for Treason, or any other Crime or Misdemeanour; and that the Refusal of the Lords to proceed in Parliament upon such Impeachments, is a Denial of Justice, and a Violation of the Constitution of Parliaments.
Resolved, That in the case of Edward Fitzharris (who by the Commons had been impeach'd for High-Treason before the Lords, with a Declaration that in convenient time they would bring up the Articles against him) for the Lords to resolve that the said Edward Fitzharris should be proceeded with according to the Course of Common Law, and not by any Impeachment in Parliament at this time, is a Denial of Justice, and a Violation of the Constitution of Parliament, and an Obstruction to the farther Discovery of the Popish Plot, and of great Danger to his Majesty's Person and Government.
Sir W. Jones.
'Now the House has done as much as is fit for the Lords, but we do not know how Inferiour Courts will proceed; therefore I'll propose a Vote, That for any Inferiour Court to proceed against Edward Fitzharris, or any other Person lying under an Impeachment in Parliament, for the same Crimes for which he or they stand impeached, is an high Breach of the Privilege of Parliament, &c. [which past, I would not give occasion to People to say, we do things in an extraordinary manner. 'Tis late, and pray let's adjourn.'
Monday, March 28. 1681.
The Bill for excluding the Duke, &c. read.
Farther Debates on the Exclusion. ; Sec. Jenkins.
'No Bill was ever offered in Parliament of the like Nature, so much against the Justice of the Nation; it condemns a Man never heard, and then 'tis a Law made ex post facto.—— Very extraordinary——against the Fundamental Justice of the Nation; and not only that, but against the Wisdom of the Nation, and will introduce a change of the Government. If the Duke will try to cut this Law with his Sword, if he overcome, he will have the same Power to set aside all Laws, both for Religion and Property: the Power will be in the Hands of the Conqueror, and certainly he will change the Government. 'Tis against the Religion of the Nation, which teaches us to pay Obedience to our Governors, whether good or bad, never so faulty or criminal. In Primitive Christianity, Obedience was paid to Heathen Princes, in licitis & honestis; and we are not to do Evil, that Good may come of it, nor on the Prospect of any good. I shall say one word more, 'tis against the Oaths of the Nation, of Allegiance and Supremacy. The Duke is the King's lawful Heir, if he have no Son, and in the Eye of the Law I am sworn to him, and every Oath is in the Sense of the Law-giver. If this Disinherison pass now into a new Law, who dispenses me from that Oath to the King? Possibly I am too tedious, and not willingly heard.—— If the Bill be against the Religion of the Nation, being obliged by Oaths, against the Government and the Wisdom of the Nation, I hope you will throw it out.'
'Sec. J. has moved to throw out the Bill, and desired to be heard patiently; I find no body second him, pray let him go on and second himself.' Ordered a second Reading.
Sir W. Jones.
'Because there has been much Discourse in the Town of the Votes that past on Saturday, upon the Lords Spiritual and Temporal rejecting the Impeachment, &c. though I believe what is done will be made good, yet I would for the present, give the Nation all the Satisfaction we can, that we are in the right. Amongst our Misfortunes in being called to this Place, we are far remote from Records and Books; but yet I think it may be easy to prepare our selves to mainrain what we have done. According to the little Light I have, I find it the undoubted Right of the Commons, not only to bring Impeachments against Lords, but against Commoners too. Magna Charta does not only say, Per judicium Parium, &c. but per Legem Terræ, &c. Trial by Parliament is Lex Terræ. I have heard of a Record, 4E. 3. where when the Earl of March' ——
The Black-Rod came to command their Attendance in the House of Lords, whither they immediately went, and the Lord Chancellor by Command of the King dissolved the Parliament.
Certain Speeches of Henry Booth, afterwards Earl of Warrington.
The following Speeches of Henry Booth, afterwards Earl of Warrington, spoken in several Parliaments, and on various important Occasions, in the Reign of King Charles II. are thought proper to be inserted here together.
For the Bill of Exclusion.
'I wish I could have been silent, and I wish there had not been an occasion for this day's Debate: But since we are brought into this Condition, it behoves every Man to put to his Shoulder to support this tottering Nation: And in this Matter that is now before us, we ought to consider very well, for a great deal depends upon it, and therefore I hope that every Gentleman will speak and vote as God shall put it into his Heart, without any Prejudice or Prepossession.
'A Bill to exclude all Papists from the Crown will produce a great many Inconveniencies on both Hands, because his R. H. being a Papist, it will set him aside: Therefore we are to consider which is the lesser Evil, and to chuse that.
'If the Duke be excluded, you are told how unjust it is to take away his Right from him: That the Crown is his Inheritance if he survive the King, and besides you provoke him and all the Papists in England to rise and cut our Throats.
'On the other hand, tis plain, that when we shall have a Popish King, our Religion and Laws are not secure one Moment, but are in continual Danger.
'So that the Case in short is this: Whether we shall sit still and put it to the venture of having a Popish Successor, then we must either submit our Heads to the Block, or fight and be Rebels: Or else to have a Law that will justify us in the defending our Religion and Laws: In plain English, whether we would fight for or against the Law. I think I have put it right; and now let every Man make his choice, that loves either his God or his Country.
'As to the Duke's Right to the Crown, I wish it were clearly known what sort of Right it is he claims, and whence he derives it: He is not Heir apparent, neither do I think that our Law knows any such thing as an Heir to the Crown, but only as a Successor: And therefore the Duke nor any other whatever, can pretend the same Title to the Crown, as the Son of a Subject can to his Father's Estate after his decease; for with Subjects they do not succeed but inherit. It is not so as to the Crown, for there they succeed: And it is from a not rightly considering the word Heir, as it is a synonymous Term with that of Successor, that has made so many to be deceived in the Duke's Title to the Crown: For this word Heir to the Crown was not heard of till Arbitrary Power began to put forth. Before William the Conqueror's time it would have been a senseless word, when the People set up and pulled down as they saw Cause: And till Queen Elizabeth it was not much in fashion, when the Crown was so frequently settled by Act of Parliament, and the next of Blood so often set aside; when the Son seldom followed his Father into the Throne, but either by Election in the life-time of his Father, or else by Act of Parliament. So that to make the Duke either Heir apparent or presumptive to the Crown, it must be proved either by the Constitution of the Government, or by some Law or Act of Parliament. If therefore he has a Title to the Crown, it's necessary to know what it is, and whence he has it; but if he has none, it's not unjust to pass the Bill, or any other where he shall be particularly named: But I will say no more of this, left I may seem to be against kingly Government, which I am not.
'If the Duke be excluded because he is a Papist, yet it is no justice: Why will he be of that Religion that the Law endeavours to suppress? The Subjects who are of that Religion forfeit two parts in three of their Estates, and shall any Subject by reason of his Quality be exempted from the Law? I hope not; besides, if a Subject forfeit two parts, it's reasonable that the next of Blood, or any that is of that Religion, should be excluded from the Crown: Because the Law has prohibited all Papists from having any Office civil or military, because their Principles are inconsistent with the Government; and then how preposterous would it be to make him the Head of the Church, and the Preserver of our Laws and Liberties, whose Religion obliges him to ruin and destroy both? So that if the Duke had not by his Practices given us just Causes to except against him, yet barely as he is a Papist he ought to be excluded: But when it is considered that he has held a Correspondency with the Pope and the French King, to subvert our Religion and Laws, what Protection can we expect from him if he be King? It is a senseless thing to imagine, that he will not disturb us in our Religion and Laws, seeing whilst he is a Subject he is practising to destroy us and them: Therefore for my part, I think we betray both our Religion and Laws if we do not pass this Bill.
There is one Opinion which prevails much in the World, which as it is false, so it does a great deal of hurt, and that is this; that every Government in the World was constituted by God himself: But that cannot be so; for it would follow, that God is unjust, which he cannot be. There neither is nor was any Government of that sort but only that of the Jews; the rest of the World were left to themselves, to frame such a Government as suited best their Inclinations, and to make such Rules and Laws as they could best obey and be governed by.
'Ours is compounded of an absolute Monarchy and a Commonwealth, and the Original of it we have from the Saxons: But be it what it will, or whence it will, it is without question that the first Original of our Kings was, that the People found it for their Advantage to set one over them, because of his Wisdom, Valour, and Justice, and therefore they gave him several Prerogatives above the rest of the People, that he might be the better able to govern and desend them: For there is none of the King's Prerogatives, but are for the good of the Nation if rightly employed. But it will be a strange Conclusion to suppose, that the People obliged themselves to submit to the Posterity of that Man whom they first chose for their King because of his extraordinary Endowments, let them be what they would, and never so unfit for the Government; For the next of Blood may be incapable of governing in several respects; suppose a Fool or Lunatic; by his Principles, if he aim at Arbitrary Power; by his Religion, if he be a Papist or a Heathen; or by his Practices, before he comes to the Crown, to destroy the Religion and Government by Law establish'd.
'Now this I do not say, to argue that the Election of the King is in the People, though, I think, much might be said in that Case, neither is it now the Question; but that which I speak for is, to prove that the next of Blood has not so absolute an inherent Right to the Crown, but that he may for the good of the Nation be set aside.
'There is yet another Inconvenience to allow the next of Blood to have so absolute a Right to the Crown, because the Possession of the Crown takes away all Disabilities, but only such as are by Act of Parliament; which being so, every King must thank his Successor for every Moment that he lives; if he kill him himself, he cannot be questioned for it, because as soon as the one is dead the other is King, for here the King never dies.
'If therefore the next of Blood has so absolute a Right, the King is very unsafe: For though the Duke be not inclined to shorten his Brother's days, nay though he be averse to it, yet in Obedience to the Pope and his Priests, it must be done either by himself or some other Hand, and then how long may we expect his Majesty's Life?
'If Kings were good Men, an absolute Monarchy were the best Government; but we see that they are subject to the same Infirmities with other Men, and therefore it is necessary to bound their Power: And by reason that they are Flesh and Blood, and the Nation is so apt to be bad by their Example, I believe was that wherefore God was averse to let the Jews have a King; till they had Kings, they never revolted so wholly from him: when their Kings were good, they were obedient to him; but when they were idolarrous, then the People went mad of Idols. I hope it is no regis ad exemplum that makes our Nation so lewd and wicked at this day.'
Against arbitrary and illegal Commitments by the Privy Council.
'There is not any thing that an Englishman can claim as his Right, that we value more than Freedom and Liberty, I mean that of the Body; because Imprisonment is a sort of death, and less tolerable to some than death itself: For by it we are deprived of all our earthly Comforts. What is a Man the better for having never so great an Estate, never so great Honour, or what else is desirable in this World, if he is restrained of his Liberty? Now there are several sorts of Restraints and Imprisonments, and they are all forbidden by our Law, unless the Cause be very just and reasonable; it is not for bare Surmises or vain Stories that a Man shall be imprisoned and hurried from his Abode; but only for such Cause as shall prove that it is for the Good of the Government, and the Support of it, that this or that Man is imprisoned or restrained. Although the Law has taken very good care, yet the Subject is often abused in his Liberty, sometimes by the Courts in Westminster-Hall, sometimes by other Courts and particular Magistrates: But the greatest cause of Complaint proceeds from the PrivyCouncil.
'The Privy-Council that is, though they have been much to blame in this Particular, yet it is not a new thing that they practise; but this itch of sending for and imprisoning the Subject upon vain Pretences, has descended from one Privy-Council to another, like an Infirmity that runs in a Blood; for no sooner is a Man made a Privy-Counsellor, but this Spirit rests upon him. This Mischief was early espied, even in Henry III's time, and several Laws have been made to restrain the Privy-Council.
By the 9 Henry III. Chap. 29. it is declared that no Freeman shall be taken or imprisoned, or be disseised of his Free-hold or Liberties, or Free-customs, or be Out-lawed, or any other way destroyed, nor we will not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land.
'By the 5 Edw. III. 9. it is enacted, That no Man from thenceforth shall be attach'd by any Accusation, nor forejudged of Life or Limb; nor his Lands, Tenements, Goods nor Chattels seized into the King's Hands, against the Form of the Great Charter, and the Law of the Land.
'By 25 Edw. III. Chap. 4. it is declared, That from thenceforth none shall be taken by Petition or Suggestion made to our Lord the King, or to his Council, unless it be by Indictment or Presentment of his good and lawful People of the same Neighbourhood, where such Deeds be done, in due manner, or by process made by Writ original at the common Law, nor that none be out of his Franchises, nor of his Freeholds, unless he be duly brought in answer, and fore-judged of the same by the Course of the Law. And if any thing be done against the same, it shall be redressed and holden for none.
'By 28 Edw. III. Chap. 3. it is established, That no Man, of whatever Estate or Condition he be, shall be put out of Land or Tenement, nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought in answer by due process of Law.
'And by 37 Edw. III. Chap. 18. it says, Tho' it be contained in the Great Charter, that no Man be taken or imprisoned, nor put out of his Freehold, without process of Law, nevertheless divers People make false Suggestions to the King himself, as well for Malice as otherwise, whereof the King is often grieved, and divers of the Realm put in Damage, against the Form of the same Charter: Wherefore it is ordained, That all they which make Suggestion, shall be sent with the same Suggestions before the Chancellor, Treasurer and his Grand Council, and that they there find Surety to pursue their Suggestions, and incur the same Pain that the other should have had if he were attainted, in case that his Suggestions be found evil: And that then Process of the Law be made against them, without being taken and imprisoned against the Form of the said Charter, and other Statutes.
In the 38 Edw. III. Chap. 9. is contained the Informers punishment, in these Words; it is assented, That if he that maketh the Complaint, cannot prove his Intent against the Defendant by the Process limited in the same Article, he shall be commanded to Prison, there to abide till he hath made gree to the Party of his Damages, and of the slander that he hath suffered by such occasion, and after shall make fine and ransom to the King. And the Point contained in the same Article, that the Plaintiff shall incur the same Pain, which the other should have if he were attainted, shall be but in case that his Suggestion be found untrue.
'And still there is another Law made 42 Edw. III. Chap. 3. in these Words: At the request of the Commons, by their Petitions put forth in this Parliament, to eschew the Mischiefs and Damage done to divers of his Commons by false Accusers, which oftentimes have made their Accusations more for Revenge, and singular Benefit, than for the Profit of the King or his People; which accused Persons, some have been taken, and sometime caused to come before the King's Council by Writ, and otherwise upon grievous Pain against the Law: It is assented and accorded for the good Governance of the Commons, That no Man be put to answer without Presentment before Justices, or Matter of Record, or by due Process, and Writ original, according to the old Law of the Land And if any thing from henceforth be done to the contrary, it shall be void in the Law, and holden for Error.
'These are Laws that are as much in force as any Statutes whatever, and ought to be as duly observed: But I beseech you consider to what a Degree they have been violated by the Privy Council: How have they sent for Gentlemen from all Parts of the Nation, upon meer Flamms and Stories? No Man could be quiet, but upon any groundless Pretence away went a Messenger, to bring up that Man, not considering the great Charge and Trouble they put the Gentleman upon by it. I will mention only that of Sir Giles Gerrard; he was sent for up by a Messenger, to answer to I know not what Business about a Black-Box, and who charged him with it: But when he came to be examined it proved nothing but Town-talk, and what a pother did they make? In our Country when a Man makes a great stir about a Matter, and it ends in nothing that is significant, we say, Billy has found a Pin: So I pray what did this Hurly-burly of the Black-Box end in, but nothing that was worth a Straw? And to this mighty purpose Sir Giles was fetched from his House in the Country: And several other Gentlemen have been thus used against Law and Reason. It is strange the Privy-Council should not remember the Bill of Habeas Corpus, which passed in the last Parliament, that might have brought to their Remembrance these Laws that I have mentioned, and might farther convince them how precious a thing we esteem our Liberty: It puts me in mind of the Petition of Right, and what I have heard and read after it was passed, how soon it was violated and broken.
'The Privy Council has been very unjust to these Gentlemen whom they have molested by their Messengers, in that they have not made their Accusers to find Sureties to make good their Accusations as the Law requires, 37 Edw. III. 18. for then idle Stories would not be so current, by reason of the Punishment inflicted on those false Accusers by 37 Edw. III. 18. and 38 Edw. III. 9. which Laws are grounded upon the Word of God, Deut. xix chap. 18, and 19. ver. But now such Fellows as are mentioned in the 37 Edw. III. 18. and in 42 Edw. III. 3. who make their Accusation for Malice, or for Revenge, or singular Benefit, more than for the Profit of the King, or his People; these, I say, shall be allowed to accuse honest Men, though they cannot prove a Word of what they say: And for these Devices are we to be forced from our Habitations to appear before the King and his Council? Methinks it's hard Play, and yet what Remedy have we left but to sit down and be quiet? But without doubt the Land intended a Redress in these Cases, for 25 Edw. III. 4. says, that whatever is done contrary to that Law shall be redressed and holden for none; but it does not tell us how Satisfaction is to be had. But since it is left uncertain, I hope for the future we shall so order it, that every Man may have Relief against this great Oppression, and that I humbly move; for if we let this alone, we leave an arbitrary uncontroulable Power in the Privy-Council, which will never stop till it has made the Law subject to them.
'But I have heard it objected, that if this Power of sending for People be not allowed to the Privy Council, then you put them in a worse Condition than any Justice of Peace, because by his Warrant he can send for any body in the County where he lives. I must in the first place deny this altogether; for the Consequence is not true: In the next place, I say, that the Law is the best Judge of this, whether the Privy-Council ought to have such an unlimited Power, and what the Law has determined over and over again ought not to be disputed by us; besides, it is a thing of dangerous Consequence, to put Discretion into the Balance with so many written Laws, which conserve so dear a thing as our Liberty.
'But the Power of the Privy-Council is not hereby made less than that of a Justice of Peace; for a Justice of Peace, it is to be supposed, will not send out his Warrant but upon a just and reasonable Ground: What Justice of Peace ever sent out a Warrant of the good Behaviour against any Person, but he either first heard the Party accused, (which is the juster Way) or else the Matter was proved upon Oath? Or when was any Warrant of the Peace issued out, but it was grounded upon the Oath of him that demanded the Surety of Peace? And whatever Warrants or Precepts are granted by a Justice of Peace, they ought to be for just Causes, or else he violates his Trust: So the Privy-Council may, upon a just Accusation, send for any Person, but without that they cannot; and therefore I do not see wherein a Justice of Peace has a greater Power than the Privy-Council; or if he had, yet it would not be so great a Mischief, for he can only send for any Person that is in the County; but the Privy-Council are not limited to this or that County, but their Power extends all over England.
'But besides, it is unjust to be punished without a Cause, and Restraint or being debarred of Liberty is a Punishment; and whoever he be that would have the Privy-Council to exercise this Power, when he has known what it is to be brought up by a Messenger upon an idle Story, let him then tell me how he likes it, and answer me if he can.'
Against the Votes of Bishops in Cases of Blood.
'Of all the things that were started, to hinder the Success of the last Parliament, and is like to be so great a Stumbling-block in the next, that of the Bishops voting in Case of Blood, was and will be the chief. Now they that deny that the Bishops have Right to vote in Case of Blood, do labour under two great Difficulties: First, because this is a new Thing, at least it is very long since the like Case has come into debate: And next, because they are put to prove a Negative, which is a great Disadvantage. But Truth will appear from under all the false Glosses and Umbrages that Men may draw over it: And I doubt not to make it evident, that the Bishops have no Right to vote in Case of Blood; at least I hope I shall not be guilty of Obstinacy, if I do not alter my Opinion till what I have to say be answered.
'It is strange the Bishops are so jealous of their Cause, as not to adventure it on their great Diana the Canon-Law; by which they are expresly forbidden to meddle in Case of Blood. Perhaps they would do by the Canon-Law, as it is said by the Idolaters in the Old Testament, that of part of the Timber they made a God and fell down and worshipped it, the rest of it they either burnt in the Fire, or cast it to the Dunghil: For they tell you that the Canon-Law was abolished by the Reformation, and that none but Papists yield Obedience to it; and therefore now they are not tied up by the Canon-Law, but may fit and vote in Case of Blood if they please. I should be very glad if they were as averse to Popery in every thing else, and particularly that they would leave Ceremonies indifferent, and not contend so highly for them, whereby they make the Breach wider, and heighten the Differences among Protestants; in the doing of which they do the Pope's Work most effectually. I wish they would consent to have a new Book of Canons; for those that are now extant are the old Popish Canons. I like Bishops very well; but I wish that Bishops were reduced to their primitive Institution; for I fear whilst there is in England a Lord Bishop, the Church will not stand very steadily. But I will leave this (though I need say no more) and proceed to other Things that are very clear, as I conceive.
'My Lord Coke in the second Part of his Institutes, the first Chapter, treating of Magna Charta, when he reckons up the Privileges of the Church, he tells us, that Clergymen shall not be elected or have to do in secular Office; and therefore he tells us, that they are discharged of such and such Burdens that Lay-Persons were subject to; and good reason it should be so, that they might with greater Ease and Security attend the Business of their Function, that is, to govern and instruct the Church: But whether they had these Immunities granted them, that they might study the Pleas of the Crown and Law-Cases, or else that they might apply themselves to the Work of the Ministry, let any Man judge; for, faith he, Nemo militans Deo, implicet se negotiis secularibus: And if to sit and judge in Case of Blood be not a secular Matter, I have no more to say; and I hope my Lord Coke's Authority will be allowed
'And because as, I conceive, that my Lord Coke's Authority may pass muster in this Point; I will offer some Things out of him, that will make it evident that the Bishops are only Lords of Parliament, and not Peers; and if so, it is against the Law of England for them to sit and judge upon any Peer for his Life; for the Law says, that every Man shall be tried by his Peers.
'In the second Part of his Institutes, the first Chapter, he tells us, that every Archbishop that holds of the King per Baroniam, and called by Writ to Parliament, is a Lord of Parliament: But in the 14th Chapter, when he reckons up who are Pares in the Lords House, he says not a word of the Bishops, but repeats all the other Degrees of Lords, as Dukes, &c. And without doubt he would not have made so great an Omission, if the Bishops ought to have been taken into the Number.
'Besides this, if the Bishops be Pares, how comes it to pass that an Act of Parliament shall be good to which their Consent is not had, passed by the King, Lords Temporal, and Commons? But it was never allowed for an Act of Parliament where the Lords Temporal had not given their Vote: And for Proof hereof see my Lord Coke, in his chap. De Asportatis Religiosorum, where he gives you several Instances of Acts of Parliament that passed and the Bishops absent.
'But then in the third Part of his Institutes he there puts the Matter out of all Controversy, and shews that Bishops are to be tried by Commoners; for, says he, in the second Chap. treating of Petty-Treason, None shall be tried by his Peers, but only such as sit there ratione Nobilitatis, as Dukes, &c. and reckons the several Degrees; and not such as are Lords of Parliament ratione Baroniarum, quas tenent in jure ecclesie, as Archbishops, and Bishops, and formerly Abbots and Priors: But they (saith he) shall be tried by the Country, that is, by the Free-holders, for that they are not of the Degree of Nobility. So that with submission this is as clear as any thing in the world.
'If the Point be so clear that the Bishops may vote in Case of Blood, it would do well that some Precedents were produced, by which it might appear that they have ever done it, at least that they have made use of it in such Times when the Nation was in quiet, and Matters were carried fairly; for Instances from times of Confusion or Rebellion, help rather to pull down than support a Cause: But my Lord Coke, in his chap. (that I mentioned even now) De Asportatis Religiosorum, gives you several Precedents where the Bishops when capital Matters were to be debated in the Lords House withdrew themselves, particularly 2 of Rich. II. the Archbishop of Canterbury made a solemn Protestation in the Parliament for himself and the Clergy of his Province, for that Matters of Treason were to be entreated of, whereat by the Canonical-Law they ought not to be present, they therefore absented themselves.
'But in regard I have hitherto vouch'd my Lord Coke for what I have said, I desire that it may be observed, that he wrote since the Reformation, and what was Law when he wrote is Law at this Day, unless it be changed by some Act of Parliament made since; and therefore he that denies my Lord Coke to have written Law, must produce some Act of Parliament, whereby it does appear that the Law is altered since his Time. Besides this, the Bishops and other Clergy were called to Parliament very uncertainly, sometimes more, sometimes fewer, and sometimes none at all, as it was in Edw. I's Time.
'Therefore seeing the Case to be thus, That the Bishops are not Peers, but only Lords of Parliament; That an Act of Parliament is good though they be absent; That they are to be tried by Commoners; and that when capital Matters were to be debated, they have withdrawn themselves, declaring at the same time, that they ought not to have to do in such things; and also that they have not so absolute a Right to sit and vote in the House as the Temporal Lords have, because they are called to Parliament so uncertainly; I shall be glad to hear what can be said to make their Right unquestionable: But if all this were set aside, yet it remains on, their part to prove that they have sat in Judgment upon the Peers. I am apt to believe, they will be hardly put to it to produce any Precedent out of good Times, when the Nation was in quiet, and the Law had its Course; nay, I think they can scarcely find any, that the Proceedings of that Parliament when it was done, were not repealed by Act of Parliament, and stand so at this Day: And I should also be glad to see, that when a Peer has been tried out of Parliament, that any Bishop was ever nominated to sit upon that Lord accused; for out of Parliament, if a Peer be tried for his Life, it is by a select number named by the King; and if the Bishops have Right to sit and vote upon the Peers, it is strange methinks that there is not any instance to be found, where the Bishops or any of them have been named to judge a Lord out of Parliament. Now the Reason (as I conceive) how this comes to pass is, because it was never known that a Bishop was tried by the Lords out of Parliament, and therefore they cannot try a Lord out of Parliament, because they are not Peers; for the Lords have never tried any Bishop but in Parliament, and that was always upon Impeachments, and not otherwise: And upon an Impeachment they may try other Commoners as well as Bishops.
'Besides this it is plain, that the Clergy, even in the time of Popery, would not have to do with blood in any case whatsoever: For when they engrossed all Offices and Places of Honour or Profit, you shall not find any Bishop that was Lord Chief Justice of the King's-Bench, or Judge of any Court where mens Lives were to be meddled with; and the Clergy were not so ignorant or backward in their interest, as to let slip such profitable places, had it suited with their function.'
'I have often considered with myself, what it is that has induced so many of the temporal Lords to contend for the Bishops in this case: I cannot perceive but that it is against themselves that they strive; for without doubt, the fewer the temporal Lords are, the more considerable they are; and why they should strive to make themselves less, I cannot comprehend; neither can any reason be assigned, but that which is obvious to every man's thoughts, That there is some secret power that governs their Lordships in this affair: But without doubt this powerful hand would not be able to turn the scales so very much, if Nobility had been bestowed only on such as deserved honour. But when Interest prevails above Merit, no wonder that a word or a look do command so absolutely; and yet there is this to be said for the Lords House, that there are a great many Lords who retain the worth and honour of their Ancestors: That notwithstanding being frowned upon, displaced, and all possible discouragements, yet have they shewed themselves to be men of English principles; that they will serve the King as English men, but will not give up any of their just Rights to please him.
'If the Bishops had never so clear a Right in this matter, yet it is to be considered, whatever Right they have, that it was gained in the times of Superstition and Blindness, when the Clergy usurped and lorded it over the Nation; and therefore in regard that England has now recovered its eyesight and understanding, they are very unthankful if they do not reduce every thing to its proper station: And if the Bishops are prohibited by a Law not to vote in case of Blood, or are abridged in any other matter where the interest of the King and People require; yet the Church is not prejudiced, for my Lord Coke tells us in the second part of his Institutes; Nec debet dici in prejudicium ecclesie libertatis, quod pro rege, & reipublicæ necessarium invenitur: And whether it be not for the interest of the King and People, that the Bishops shall not vote in case of Blood, I subm't to any man that wishes well to England.
'Now I would fain be satisfied why our Bishops are more forward to have to do in case of Blood, than the Bishops and Clergy in the time of popery; it's plain they always declined it; but ours will adventure a Kingdom upon it: It's true they will withdraw upon the trial of the five popish Lords, but they will not upon trial of my Lord Danby's pardon; yet thus far they condescend, that when Judgment is to be pronounced, they will withdraw: very well. First, it is confessed on all hands, that if my Lord Danby's pardon do not hold good, he dies for it: And next, I would willingly understand the difference in this case, when a Man is tried for his life before several Judges, and all of them, though he is innocent, resolve that he shall be pronounced guilty, but they withdraw themselves, and leave one of their Brethren to pass the sentence: Now the question is, whether the rest that were absent are not as guilty of shedding innocent Blood, as he who pronounced the sentence: And so on the contrary, for any other thing whatever: And whether this does not reach the case in hand I humbly submit. But the truth of the matter is, the Bishops do know, that if my Lord Danby's Pardon be allowed, then arbitrary Power comes in: And then will be, their harvest, and here's the short and long of the Case: And therefore the Parliament must never yield that the Bishops shall vote in case of Blood; for the consequence of it will be to alter the very Frame of our Government, and cursed be he that removes his neighbour's Landmark.'
Against Pensioners in Parliament.
'Without doubt the last Parliament had great matters in agitation, and the Enquiry they made about the Pensioners of the preceding Parliament was no small one, but rather one of the chief things they had in hand; for had they been permitted to have perfected that, it had been a good recompence for the disappointment which the Nation sustained in their other expectations, by the sudden prorogation: And without all question, nothing is fitter for the thoughts of a Parliament, than to take into Consideration how to punish them that had proved the pest, and had almost (if not altogether) ruined the Nation; and how to prevent the like mischief for the future.
'The Name of a Pensioner is very distasteful to every English Spirit; and all those who were Pensioners I think are sufficiently despised by their Countrymen: And therefore I will mention only two or three things that will lie at their doors, before I offer my advice what is to be done.
'Breach of Trust is accounted the most infamous thing in the World, and this these Men were guilty of to the highest degree; robbery and stealing our Law punishes with Death, and what deserve they who beggar and take away all that the Nation has, under the pretence of disposing of the People's Money for the honour and good of the King and Kingdom? And if there were nothing more than this to be said, without doubt they deserve a high censure.
'Besides the giving away such vast sums, without any colour or reasonable pretence; there is this great mischief will follow upon it: Every Man very well knows that it has put the King into an extraordinary way of expence: And therefore when he has not such great Supplies, it must of necessity bring the King into great want and need: And shall not only give him an ill opinion of all Parliaments, that do not supply him so extravagantly, but perhaps put him to think of ways to get Money that otherwise would never have entered into his thoughts; so that whatever ill may happen of this sort, these Pensioners are answerable for it.
'Farthermore, they have said us open to all our Enemies; whoever will invade, may not doubt to subdue us: For they have taken from us the Sinews of War, that is Money and Courage; all our Money is gone, and they have exhausted the Treasure of the Nation, and when People are poor, their Spirits are low, so that we are left without a Defence; and who must we thank for bringing us into this despicable Condition, but these Gentlemen, who notwithstanding this had the face to stile themselves the King's friends, and all those who opposed their practices were factious and seditious. They had brought it to that pass, that Debates could not be free; if a Gentleman's Tongue happen to lie a little awry in his Mouth, presently he must be called to the Bar; or if that would not do, whensoever any Gentleman that had a true English Spirit happened to say any thing that was bold, presently away to seek the King and tell him of it; and oftentimes more than the truth: And thus they endeavoured to beget an ill opinion in the King of his best Subjects: And their practice was the more abominable, because their words and actions gave the occasion to force those smart expressions from the Gentlemen that spoke them; for their honest Hearts were fired with true zeal to their King and Country, when they beheld the impudence and falseness of those Pensioners.
'It is true we find that in or about the 10th Year of Richard II. it was endeavoured to get a corrupt Parliament; for our English Story says, that the King sent for the Justices and Sheriffs, and enjoined them to do their best, that none should be chosen Knights and Burgesses, but such as the King and his Council should name; but we find it could not be effected.
'The next that occurs to my Thoughts is that in the 4th Year of Henry IV. the Parliament that was called at Coventry, named the Lay-Men's Parliament; for the Sheriffs were appointed that none should be chosen Knights or Burgesses, that had any Skill in the Laws of the Land.
'The next that I remember is that in Henry VI's time, in the Year 1449, or 50, when the Duke of Suffolk was accused by the Commons, and committed to the Tower; the King dissolved that Parliament not far unlike our Case of my Lord D——, but it differs in this, that Suffolk was committed to the Tower as of right he ought, but we were denied that Justice against D ——; only Henry VI. made the Cases thus far even, that he set Suffolk at liberty after he had dissolved that Parliament: Soon after a Parliament was called, wherein great Care was taken in chusing of Parliament Men that should favour Suffolk; but they so far failed of their purpose, that his Appearance at the Parliament gave great distaste to the House of Commons, and they were so far incensed, that they began the Parliament with a fresh Accusation against him and others: So that you may see that it was not in the power of the Court to corrupt the House of Commons.
'In the time of Henry VIII about the 20th Year of his Reign, when the Parliament was active against Pluralities and Non-residence, there was an Act passed to release to the King all such Sums of Money as he had borrowed at the Loan, in the 15th Year of his Reign; it is said that it was much opposed, but the Reason that is given why it passed, is, because the House was mostly the King's Servants; but it gave great Disturbance to the Nation: And this is the only Case that I can remember that comes any thing near to our Pensioners; but we cannot find that they or any Parliament took Money to vote: So that we must conclude that there were never any Pensioners in Parliament till this Pack of Blades were got together.
Therefore, Sir, what will you do? Shall these Men escape, shall they go free with their Booty? Shall not the Nation have Vengeance on them, who had almost given up the Government? It was they who had perverted the Ends of Parliaments: Parliaments have been and are the great Refuge of the Nation, that which cures all its Diseases, and heals its Sores: But these Men had made it a Snare to the Nation, and at best had brought it to be an Engine to give Money; if therefore these go away unpunish'd, we countenance what they have done, and make way to have Pensioners in every Parliament; but far be any such Thought from any Man that sits within these Walls: And having said this, I will in the next place humbly offer my Thoughts what is to be done.
'In the first place I do propose, that every Man of them shall on their Knees confess their fault to all the Commons, and that to be done at this Bar one by one.
'Next, that as far as they are able, they refund all the Money they have received for secret Service. Our Law will not allow a Thief to keep what he has got by stealth, but of course orders Restitution, and shall these proud Robbers of the Nation, not restore their ill-gotten Goods?
'And lastly, I do propose that they be voted incapable of serving in Parliament for the future, or of enjoying any Office civil or military; and order a Bill to be brought in to that purpose: For it is not fit, that they who were so false and unjust in that Trust, should ever be trusted again: This Sir is my Opinion, but if the House shall incline to any other way, I shall readily comply, provided a sufficient Mark of Infamy be set on them, that the People may know who bought and who sold them.'
For Parliaments, and against Favourites.
'A King of England at the Head of his Parliament is in his full Strength and Power, and in his greatest Splendor and Glory: It is then that he can do great things, and without a Parliament he is not very formidable. Therefore when Kings leave off the use of Parliaments, and rely upon the Advice of particular Favourites, they forsake their chiefest Interest, they lay aside the Staff that supports them, to lean upon a broken Reed that will run into their Hands; and this is proved by the Example of former Kings: What Kings performed such Enterprizes, and did such wonderful Things, as those who still consulted their Parliaments? And who had more the command of the People's Purses than those Kings who met the Natives frequently in Parliament? As witness Henry I. Edward I. Edward III. Henry V. Henry VIII. Q. Elizabeth, and what Kings were so mean and obscure, despised by their Neighbours, and abhorred by their Subjects, as those who left off the use of Parliaments and doted upon their Favourites: As witness Will. II. John, Henry III. Edward II. Richard II. Henry VI. And I think it is undeniable that when the King leaves off Parliaments, he forsakes his Interest, he refuses the Good and chuses the Bad.
'I wish it could not be said that for two Years last past, the use of Parliaments has almost been laid aside: It is too true that Parliaments have been delayed, and there is but a little between delaying and denying, and the first Step to a denial is to delay: Every Man knows the great need we have had of a Parliament these seventeen Months, and why it has not met till now: It is very well known how earnestly it was desired by all good Protestants and true Englishmen, and what Applications have been made to His Majesty that it might fit; and it could not be obtained till now: And it is not to be forgotten how often it has been prorogued, and the notice that has been given to the Nation of the several Prorogations; the first time that we have heard of them was by the Gazette, in which is seldom any thing of truth, and then out comes a Proclamation for a prorogation about a day or two before the Day of meeting: When Gentlemen have disposed their Affairs that they may attend at the Parliament, and possibly were on their Journey towards London, upon the Road they meet the News of the Prorogation, (very good Usage!) and there is nothing to be said in justification of such short notice, but that when His Majesty by his Proclamation had appointed a farther time for the meeting of the Parliament, that in plain English no Man must believe it would meet: For if Gentlemen did believe it, they would prepare for it; and if they are prepared, it is but reasonable that sufficient notice should be given to prevent them: Certainly they who advised the King in this Matter, intended that none of His Majesty's Proclamations should have any Credit: For His Majesty put out several Proclamations against Papists, and we see how they are regarded, not the least Obedience yielded to them: And this giving of such short notice, was certainly done on purpose that those Proclamations should neither be obeyed nor believed. Thus is the King abused, thus does he lose the Hearts of the People, and thus is the Nation abused: What will become of us when we cannot believe what His Majesty says. Out of Parliament the King cannot speak to his People in a more notable way than by Proclamation, and as the Matter is ordered, these are not regarded: In a Subject nothing is more infamous, than to say of him, that his Word is not to be relied on, he does not regard what he says: And therefore what Villains are they, who by their Advice, do bring the King but into the suspicion of it.
'This delaying of Parliaments seems to portend the laying of Parliaments aside; and if so, an Army will follow: for the King must govern either by a Parliament or an Army, for one of them he must have; now the way to get rid of Parliaments is this: First, although they meet sometimes, yet something must be started to hinder their Success; or if that won't do, prorogue or dissolve them before any thing be finished: and thus Parliaments will be made useless; and this being done, it will not be long before they become burdensome, and then away with them for good and all.
'Kings only then grow out of Concéit with Parliaments, when their Favourites are so overgrown, and their Actions are so exorbitant, that they will not endure to be scanned by a Parliament: And therefore to save themselves, they persuade the King to keep off the Parliament, though it be to his great hurt: For the last Trump at the Day of Judgment will not be more terrible to the World, than the Sound of an approaching Parliament is to unjust Ministers and Favourites.
'That State is sick of a grievous Distemper, when Kings neglect their Parliaments, and adhere to Favourites, and certainly that Woe is then fallen upon the Nation, which Solomon denounces; for says he, Whe to that Nation whose King is a Child; and without question he meant a Child in Understanding, and not in Years. We have had in England Kings who when they were Children, by the help of a wise Council, have governed very well: But after that they took Matters into their own Hands, it went very ill with England; as Richard II. Henry VI. who whilst they were Children, the Government was steered aright; but their Understanding not growing as fast as their Years, they assumed the Government before they were ready for it; and so managed Matters, that it is better not to name them, than to reckon them in the Catalogue of the Kings.
'And there is yet another Reason why great Favourites should advise against Parliaments: Kings that dote too much upon their Favourites, do for the most part pick up mean Men, People of no Fortunes or Estates, upon whom it is that they place their Favour to so high a degree: And therefore it is for their Interest to advise the King to govern by an Army, for if he prevails, then they are sure to have what Heart can wish; or if he fail, yet they are but where they were, they had nothing, and they can lose nothing.
'There is no Man but very plainly sees, that there are People about His Majesty who advise him to shake off the Fetters of the Laws, and to govern arbitrarily; and I wish that their Advice has not prevailed for the most part; yet I think His Majesty's own Inclinations do not bend that way, for he seems to love quiet and ease, which no Prince can have that rules by an Army: Therefore, before we can expect that His Majesty will come in to us, these People of arbitrary Principles must be removed from his Throne; for, whilst there are the same Advisers, we must expect the same Advice; whilst there are the same Counsellors, we must expect the same Results: And this alone will not do it, 'tis but the first Step to our Happiness; the Principles or Maxims of State must be removed, it's not taking away this or the other Man, and putting in another to act by the same Rules, that will cure our Disease; but it's the change of Principles that must do it.
'You may remember in the last Parliament the change that was made in the Privy Council, and Ministers, and upon the first News of it, I met with a Gentleman that had a great service for White Hall; says he, I hope now you are pleased, what can you expect more from His Majesty? I replied, I like it well; yet not so very well, for said I, all is well that ends well, for all is not Gold that glisters: I am not sure, that these Men that are put out, have not left their Principles behind them; when those are gone, I shall like it very well. The Man was angry, and flung away, saying, you are hard to please; and says I, you are easy, and so we parted.
'And I pray you, how much Wool have we had after all this cry, what Benefit have we reaped by that change? Do not we see, that unless they would act by the Maxims of their Predecessors, they must do nothing; and therefore several did desire leave to go off? Some of these worthy Lords and Gentlemen that did so are now in my Eye, and I shall ever honour them for it: I cannot forget the Promises made to the Parliament at the same time, and how well they have been kept.
'Therefore I think it's very plain, that till these Principles are removed from White-Hall, that all our Labour and Pains will end in nothing: The way then as I conceive to do this, is to lay before His Majesty the state of the Case; let us shew him how unable these Men are to serve him, and how destructive to his Interest it is to follow their Advices; and that he can be safe and great only by closing with his Parliament.
'Would His Majesty be safe, alas, what can his Creatures do? Just nothing, they have no Power, nor have they Will farther than it serves for their own Advantage: But His Majesty is safe in his Parliament, for it is the Interest of every Man in England to preserve and defend His Majesty's governing by his Parliament.
'Does he want Money to make him easy? I pray what can he expect from the Caterpillars his Favourites? Their care is not how to serve him, but to make their own fortunes: But from his Parliament he need not want very plentiful Supplies, to preserve the honour of himself and the Kingdom. Would he maintain his Dominions and Rights, what can his Creatures do? But when he closes with his Parliament, he can neither want the Heads, Hearts, nor Purses of his People to serve him: So that whatever his Majesty would have, it is only to be had by his Parliament: For his Favourites cannot in the least contribute to make him safe or honourable; or whatever else a King may want or desire: All the use a King can have from his Favourites, is to have stories and lyes to set him at variance with his People. I hope when the case is laid before his Majesty, that he will close with us; but if his Judgment is so prepossessed, that it will not convince him of his Interest, then we must conclude, that it is with him as it was with Rehoboam, who forsook the council of the old Men, and inclined to that of the young Men, who counselled him to tell the People that his little finger should be thicker than his father's loins: And I pray what was the effect of that huffing Speech? Why ten Tribes were taken from him, and it was not his young Men that could recover them for him again; neither was it without a Parliament that his Majesty was brought into England; I hope his Majesty has not forgot it.
'Let them advise what they will, but I am confident they will think on't a good while, before they will adventure to put those arbitrary Councils into execution; it will prove a hot matter to handle: For though I hope no Man here will lift up his hand against his Majesty, yet we may oppose any Man that does seek to invade our Properties: And for my own part, I will pistol any Subject, be he the greatest in England, that shall endeavour to deprive me of my just Right: Let us do what we can to effect an Union between the King and his People, and leave the success to God Almighty, and his Will be done.'
On putting certain Justices out of Commission.
'I was in hopes that some Gentlemen would have prevented me in what I have to say, for I fear the House is under a great mistake, as to those Gentlemen of the House who are put out of the Commission of the Peace: For it is to speak to that chiefly I stand up: I acknowledge that it is an unanswerable thing, that other Gentlemen were put out; but no doubt it was upon very weighty and warrantable grounds, that the Gentlemen of the House were put out.
'For without doubt his Majesty, or whoever he be that advised him to it, did think it reasonable, and were sensible, that we who attend the Service of our Country in this place, do spend our Time and Money, and neglect our own Affairs, and therefore when we come home, it's fit that we have a Time of Rest, and that we be cased both in our Bodies and Purses, and be at leisure to settle our own Concerns; and no that we should be tossed from one chargeable and troublesome Employment to another: So that we have great cause to be thankful for the care that is taken of us.
'Besides, there is a farther regard had to us; for this is a dangerous time to put the Laws in execution against the Papists, because there are examples where Magistrates, some have been murthered, others attempted to be assassinated for putting the Laws in execution against the Papists, and because we appeared to be zealous in it, therefore this care is taken of us: I suppose that might be the chief Reason why I was put out, because I have help'd to convict above five thousand Papists in Lancashire.
'And farthermore it was necessary to know how we stand in the thoughts of our Countrymen, whether they have a good Opinion of us now we are turned out of Office, because it looked like a designed Disgrace: For my part it has gained me ground, and I believe every Gentleman else finds his Countrymen not to esteem the worse of him, I rather think, better; therefore seeing our Countries believe us to be honest Men, there's no great question but we shall be in great esteem at Whitehall, now they have had this trial of us: For Whitehall is very apt to incline to the Opinion of the Country: And that Cart is not well upon the wheels, when it is otherwise.
'Therefore for my part I am very thankful that I am put out. I will assure you I find my Purse the fuller for it, and I find my Country to pay me altogether as much respect, if not more than formerly: There is but one thing that I grudged to part with, and that was the Office of Custos Rotulorum, which had been in my Family for several generations, and for that I hoped a particular Reason might have been assigned why they took it from me, but from that Day to this I cannot learn what was the cause: It is gone, and farewell it: And that's all the loss I had, by being put out of the Commission of the Peace. I have done with ourselves, and now give me leave to speak a little concerning other Gentlemen who are put out, and no Reason given for it.
'When any Gentleman is made a Justice of Peace, it is out of respect to him, and for the good of the Country, because he is supposed to be honest and able; and without dispute no Man ought to be put out, but either that he is unfaithful, unwilling to do his Part, or else that he does not understand it: And it is a great Injustice to any Gentleman to put him out without hearing him; for to judge a Man unheard is not allowed by the Law. And what is it, but to judge a Man's Reputation, a Thing most dear to every honest Man? For in any Age but this, it would be a great Reflection upon a Gentleman to be turned out of the Commission of the Peace: But God be thanked, the Nation sees very plainly who and what sort of Persons rule the roast. By all the Enquiry I can make, I do not find that any Man is put out, but such as were very active against the Papists, such as are against Arbitrary Power, and such as approved of the Bill against the Duke: I wish they would give the Reason why one Gentleman was put out in my County, for besides myself there are but two put out; the one was newly put in, and had not acted; the other is an ancient Justice of Peace, and a Man that cannot be reprehended in relation to the Discharge of his Trust; without Reflection or Diminution to any Man, I think he knows the Work of a Justice of Peace as well as any Man in England, I except no Man: And for his Integrity, he may set all Men at defiance to accuse him of the least Partiality in the discharge of his Trust; and I do know that no Man made it more his Business than he did, that he might ease and serve the Country: For as his Ability was not inferior to that of any other Man, so did he most duly put the Laws in execution, especially those against the Papists. And therefore, Sir, on the Behalf of my Country I must complain, and demand to know the Reason why he was put out; we are greatly hurt, we are deprived of a great Assistance and Relief, and we cannot be quiet till we are satisfied in that Particular: And my Lord Chancellor or the Privy-Council (whichsoever of them it is that put him out) will they not tell us why? Are they ashamed to own the Cause? What will it not bear Water? I hate this as I do Arbitrary Power and Popery. Brave World! that we must be debarred of the Benefit of our Laws; for if they are not executed, they signify nothing: It is that which gives Life to our Laws; and they that do execute them are put out of Office; this is a fair Step to arbitrary Power, to deprive us of the Benefit of Law. It is the same thing not to have Laws, as to have Laws and not executed: I say no more, lest I may seem to speak in my own Case, for I do not desire to have any thing done as to my own Particular, but as to the Gentleman, whose Character I have given you, and his Name I will acquaint you with, it is Sir Thomas Manwaring, you must give me leave to be importunate, and press it again and again, that he may be again put into the Commission of the Peace.'
For the Banishment of Papists.
'I would be as backward to commit Oppression, as I will be to do any thing that God has forbidden me: For in all our Actions betwixt Man and Man, both public and private, if we observe that golden Rule, to do as we would be done by, we cannot err: And if my Conscience should tell me that I transgressed that Law, when I give my Vote to banish the Papists, I will assure you I would not violate either that Rule or my Conscience; I would now be silent, and give my Vote the other way.
'But that Rule does not so strictly tie us up, as that we must forget ourselves, our Posterity, our Laws, or our Religion; it does not oblige any Man to hurt himself to save another; neither does it require that a whole Kingdom shall be lost to save particular Men: For Charity begins at home; but when the Papists are considered in their Principles and Practices, then let any Man deny if he can, that the Papists themselves are the Cause of whatever happens to them.
'I will mention but one or two of their Principles, because I doubt not but every Gentleman here is very well informed of them.
'The first that I will speak to, is this, that Faith is not to be kept with Heretics: And this Liberty extends to every Thing, both as to Religion, and worldly Affairs: It is the same thing to them whether they speak Truth or no, when they have to do with a Heretic, as they esteem every Man that is not of their Faith, so that you cannot tell when to believe them, nay, though they swear it, for to equivocate is a great Part of their Religion.
'The next is this, That it is meritorious to promote their Religion, without Regard had to the Way or Means of effecting it; though it be by butchering their King, murdering Father or Children, prostituting their Wives, or overthrowing the Government: Be it never so unnatural or repugnant to God's Commands; and agreeable to these two, are all the rest of their Principles. So that I would fain see how it is possible, to live in quiet with a People, whose Religion obliges them to destroy all Converse or human Society, to murder their Neighbours, assassinate their King, and subvert the Government when it is in their power; for my part I cannot see how they can or are fit to live, but with People of their own Faith and Belief: Brutes and Christians can never live and converse together; for none but Men of their Principles can live in Safety with them.
'And agreeable to their Principles has been their Practice all along: What Rebellion, or to use their own Word, Commotions have we had, but their Hand has been chiefly in it? I know they would cast the Odium of the late Wars upon the Presbyterians; they may well be afforded to lye for their Cause, who will do every Thing else for it, though never so inhumane or unnatural; they may well deny that Plot, when they have the Impudence to deny this, and to cast this also upon the Presbyterians: but why should they not lye in these Cases, whose Religion is a Lye? But it's very well known who began the late War, there is no Man but is sensible that the Papists carried on the Business again the Scots: It is too notorious that a great Woman employed her Agents to the Papists, to encourage them to contribute to that Work: I'll not name her, because of the Act of Oblivion, and besides she is dead: I believe every one knows who I mean.
'The Papists have renounced the Government, they have forfeited the Benefit they might have by the Laws, in that they will not take the Oaths of Allegiance and Supremacy, or when they do swallow them, it is with such mental Evasions, that they don't think themselves to be obliged or bound by them, which in effect is a denying them; and what are these two Oaths, but a reasonable Security, that the Government requires them and all others to give? And he that denies to assure the Government, that he will to the best of his Power maintain it, does in plain English acknowledge another Power, and that when he has an Opportunity he will do his best to destroy this, and bring in that: Is that Government obliged to preserve them, who will destroy it? Are they to have any Benefit of the Laws, who will not obey them? They have renounced the Government, they have denied the King's Authority, and therefore they are to be used as Enemies to both; and then what Severity is it to banish such People?
'For what must we do? It's plain, that whilst they are here we shall never be in quiet; there is something in their Religion that obliges them to be unquiet; for what Reason had they at this Time to plot or disturb us, had not they all Things at Heart's-ease? They cannot expect to be in so good a Condition if they had a Prince of their own chusing; they were free from all chargeable and troublesome Employments and Offices; their Estates were not burdened with the Forfeitures due by Law, an easy Hand was laid upon them, and the Way to Preferment was by being of their Religion, they had got into almost all the profitable Employments, they were above, and we below; they had what they desired, and yet all th's would not do.
'But if this be too much, then let us do with them as the Children of Israel did with the Gibeonites; they had made a League with them, that they should live amongst them, but lest they might do them harm, they made them Hewers of Wood, and Drawers of Water, (Joshua ix.) notwithstanding the League. And if the Papists must live amongst us, let us give their Estates to the King to ease our own, and reduce them to such a condition, that since thiey will not live at peace with us, let us put it out of their power to hurt us.
'If they must live amongst us, and have their Estates, I shall humbly propose that we may know them; let them wear a particular Habit, or carry some Mark whereby they may be distinguished from the rest of the Nation: In Rome the Whores wear a peculiar Garb: In the time of a Plague we set a Mark upon the House that is infected; and shall these People have none, who are the pest of the Land? It is to them that we owe all our Disquiet; and let us know how to avoid them: I cannot think of any other way how to be secure against them; we have no great Benefit by convicting of them; Kissing goes so much by favour, and they are so tender a place, that this Man and the other is picked out to be exempted from the Penalty of the Law; there is such picking, that few are left: These are my Thoughts, and if any thing I have proposed may be of use, I am very glad of it; if not, I hope I shall have your Pardon for troubling of you.'
Of the Corruption of Judges.
'There is not under the Sun a better, if so good a Government as ours: But the best-constituted Government in the World is subject to one great Fatality, and that is, whatever Benefit we have by the Law, at least most of the Privileges we enjoy by it, depend upon the Will and Pleasure of those who are to see to the Execution of the Laws: For Laws that are not put in execution are vain and empty things, signifying nothing; for Execution is the Life of the Law, and without that they are a dead Letter: Laws unexecuted are not far unlike to a Gun, which if rightly used is a Weapon of great Defence, but otherwise of no great use; and if it be charged, it may do much mischief, unless it be levelled at the right Mark: So our Laws, if they are not executed, what Advantage arises to us more than from waste Paper? And if they are made use of, yet if they are not directed to their proper End, they may hurt those they ought not: So that it is out of doubt that they who are entrusted with the Execution of the Laws, it is an indispensable Duty incumbent on them, that they take care not only that the Laws be duly put in execution, but also that they pursue their proper End and Design; in short, that neither the Innocent be condemned, nor the Guilty acquitted; therefore the Execution of the Law is so clear and undoubted a Right of every Subject, that no Power whatever can dispense with it: And they whose duty it is to see it done, if they either pervert or hinder the Law from having its course, are highly criminal, and ought to be called to a strict account about it.
'Having said this, I will in the first place tell you something of the Law in this case, and next give you some account of the Practice of our Judges and other Officers of Justice, and then let any Man say if he can, whether the Nation at this day has not great cause to complain.
'Currat Lex, Fiat Justitia, is the Life and End of our Government, and when the Law has not its course, and Justice is not done, then there is a Dissolution of it: And he that will peruse my Lord Coke's Exposition upon Magna Charta, shall find that it is a fundamental and ancient Right of the Subject, that Justice is not to be delayed or denied.
'In the second Part of my Lord Coke's Institutes, the 11th Chap. on Magna Charta, he tells us, lest any Party that hath Right should be without Remedy, or that there should be a Failure of Justice, therefore Statutes are always so to be expounded, that there should be no Failure of Justice, but rather than that should fall out, that Case (by Construction) should be excepted out of the Statute.
'In the 29th Chap. on Magna Charta, nulli negabimus aut differemus justitiam vel rectum, and that by no means Common Right or Common Law should be disturbed, or delayed, no, though it be commanded under the Great Seal, or by any Command whatsoever, either from the King, or any other, and this is backed or seconded by a Statute made the second of Edw. III. Chap. 8. which says thus, That it shall not be commanded by the Great Seal, nor the Little Seal, to disturb or delay Common Right: And though such Commandments do come, the Justices shall not therefore leave to do right in any point.
'In his 2d Chap. on the Statute of Gloucester, he calls Delay the great Enemy to Justice: In his 24th Chap. on Westminster 2d. Ne querentes recederent a curia sine remedio: And that is supported by a Statute made the 13th of Edward I. Chap. 50. where it tells us, that no Man shall depart from the King's Court without Remedy.
'In the 25th Chap. on Westm. 2d. Dominus rex volunt atem habens ut celeris fiat justitia: And the Reason hereof is given, for expedit reipublicæ ut sit finis litium.
'And by a Statute made the 9th of Hen. III. Chap. 29. It is enacted that Justice shall not be denied or deferred: Therefore having said this, I think I need say no more to prove that Justice or Right is not to be sold, denied, or delayed; and let any Man deny if he can, whether our Judges have not transgressed in all these? Has not Justice been sold and perverted; Witness the Acquittal of Sir George Wakeman, Sir Thomas Gascoines, and Mrs. Cellier? Has not Justice been denied? Witness the abrupt dismissing of the Grand-Jury, when an Indictment was to have been given in to have proved the Duke of York a Papist; and to prevent that great Service to the Nation, the Jury was dismissed, notwithstanding they had several other Bills of Indictment in their hands; by which Justice was not only delayed, but denied: And how many Instances more are there of this kind; nay, the Contagion has spread so far, that it is more difficult to find a Case without these, or some of them, than to produce Multitudes of Cases where Justice has been sold, denied, or delayed: So that our Judges have been very corrupt and iordly, taking Bribes, and threatning Juries and Evidence; perverting the Law to the highest degree, turning the Law upside down, that arbitrary Power may come in upon their Shoulders: The Cry of their unjust Dealings is great, for every Man has felt their Hand, and therefore I hope their Punishment will be such as their Crimes deserve, that every Man may receive satisfaction.
'Its so long since King Alfred's time, that possibly what was then done is out of their thoughts; for my Lord Coke in the third Part of his Institutes, Chap. 101, makes mention of a great many Judges who were hanged in one Year for false Judgment in King Alfred's time; and if we look into the Punishment of a corrupt Judge, which is recited by him in the 224th Page, it may be sufficient to deter any Judge (who has either any Christianity or Morality) from offending in the Discharge of his Trust; but it may be some wonder that they have forgotten what happened in the 24th of Edward III. concerning William Thorp Chief Justice, what a severe Punishment he underwent for Bribery; all which may be seen at large in Page 223, 3d Part. And also that of Tresilian and Belknap, with others their Fellows who were all attainted by Act of Parliament, 2d of Richard II. which was afterward confirmed by 1st of Henry IV. A Man would think that these cannot be forgotten; but as the case stands, their Memories are to be refreshed by condign Punishment, and they very well deserve it; for my Lord Coke in the fourth Part of his Institutes, says, Chap. 13. That when particular Courts fail of Justice, the general Courts shall give Remedy: Ne curiæ regis deficerent in justitia exhibenda: So that what a condition are we in, when those Judges that are to relieve against the Injustice or Delay of inferior Courts, do turn Merchants of the Law, and will not do right; for when they are corrupt, how shall we escape, but all inferior Courts will follow their Example; therefore in my opinion this Matter ought to be searched into; and if there prove such Faults as are complained of, we can do no less than punish the Offenders, and prevent the like for the future, lest we otherwise seem to countenance their Actions; for if we do not punish them, we approve of them: From which, good Lord, deliver us.
'And now I am speaking of Judges and their Misbehahaviour, give me leave to acquaint you with the Grievance of the County for which I serve, in relation to our Judge or Chief Justice.
'The County for which I serve is Cheshire, which is a County Palatine, and we have two Judges peculiarly assigned us by his Majesty: Our puisne Judge I have nothing to say against, for he is a very honest Man for ought I know.
'But I cannot be silent as to our Chief Judge, and I will name him, because what I have to say will appear more proable: His Name is Sir George Jefferies, who, I must say, behaved himself more like a Jack-Pudding, than with that Gravity that beseems a Judge; he was mighty witty upon the Prisoners at the Bar, he was very full of his Jokes upon People that came to give Evidence; not suffering them to declare what they had to say in their own way and method, but would interrupt them, because they behaved themselves with more Gravity than he; and in truth the People were strangely perplexed when they were to give in their Evidence; but I do not insist upon this, nor upon the late Hours he kept up and down our City; it's said he was every Night drinking till two a clock, or beyond that time, and that he went to his Chamber drunk; but this I have only by common Fame, for I was not in his Company; I bless God I am not a Man of his Principles or Behaviour; but in the Mornings he appeared with the Symptoms of a Man that over Night had taken a large Cup.
'But that which I have to say is the Complaint of every Man, especially of them who had any Law-Suits. Our Chief-Justice has a very arbitrary Power, in appointing the Assize when he pleases; and this Man has strained it to the highest point; for whereas we were accustomed to have two Assizes, the first about April or May, the latter about September; it was this Year, the middle (as I remember) of August before we had any Assize; and then he dispatched Business so well, that he left half the Causes untried; and to help the Matter, has resolved that we shall have no more Assizes this Year.
'These things I hope are just cause of Complaint: It cannot be supposed that People can with ease or delight be in expectation, so long as from May till August, to have their Causes determined; for the notice he gave was very short and uncertain.
'And I beg you, is it not hard for them that had any Trials, to see Counsel, be at the Charge of bringing Witnesses, and keep them there five or six Days; to spend these Time and Money, and neglect their Affairs at home; and when all is done, go back and not have their Causes heard? This was the case of most People the last Assize.'