The History and Proceedings of the House of Commons: Volume 2, 1680-1695. Originally published by Chandler, London, 1742.
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Queries relating to the Execution of Lord Stafford.
December 23, 1680. (fn. 1) Some Queries relating to the execution of William late Viscount Stafford, offered to the House by the Sheriffs of London and Middlesex.
1. Whether the King, being neither Judge nor Party, can order the Execution?
2. Whether the Lords can award the Execution?
3. Whether the King can dispense with any part of the Execution?
4. If the King can dispense with some part of the Execution, why not with all?
'Mr. Speaker, Sir, Death is the end of the Law in criminal Matters; the other Particulars of the Sentence are but Ceremonies, used ad terrorem. I never read of any Peer that was quartered, though many have been condemned for Treason, and some in Parliament. The Lady Jane Gray, and many other Women, have been condemned for Treason, and in that Case are always condemned to be burnt; but however, are usually, if Persons of Honour, beheaded. Wherefore it is probable, that the Royal Power hath always dispensed with such Sentences formerly; and if so, this House lieth not under any Obligation to offer at any Opposition, nor concern themselves herein, especially at this Time, when such a Dispute may end in preventing the Execution of the said Lord Stafford. And therefore I humbly conceive you may do well to give your Consent, that the said Writ be executed according to its Tenour.'
Resolved, That this House is content that the Sheriffs of London and Middlesex do execute William late Viscount Stafford, by severing his Head from his Body only.
The same Day Sir Richard Corbet reported, from the Committee appointed to examine the Proceedings of the Judges, as follows.
Sir Richard Corbet's Report relating to the Proceedings of the Judges.
The Committee being inform'd that, in MichaelmasTerm last, the Court of King's-Bench discharg'd the Grand Jury that served for the Hundred of Oswaldston, in the County of Middlesex, in a very unusual manner, proceeded to enquire into the same, and found by the Information of Charles Umfreville Esq; Foreman of the said Jury, Edward Proly, Henry Gerrard, and John Smith, Gentlemen, also of the said Jury, That on the 21st of June last, the Constables attending the said Jury were found defective, in not presenting the Papists as they ought, and, thereupon, were ordered by the said Jury, to make farther Presentments of them, on the 26th following: On which Day the Jury met for that Purpose, when several Peers of this Realm and other Persons of Honour and Quality, brought them a Bill against James Duke of York for not coming to Church: But some Exceptions being taken to that Bill, in that it did not set forth the said Duke to be a Papist, some of the Jury attended the said Persons of Quality, to receive Satisfaction therein. In the mean time, and about an Hour after they had received the said Bill, some of the Jury attended the Court of King's-Bench with a Petition, which they desired the Court to present in their Names unto His Majesty, for the sitting of this Parliament. Upon which the Lord ChiefJustice Scroggs raised many Scruples, and on Pretence that they were not all in Court (though twenty of the Jury had subscribed the Petition) sent for them, saying he would dispatch them presently. The Jury being come, and their Names called over, they renewed their Desire that the Court would present their Petition; but the Chief-Justice asked, if they had any Bills? They answered, they had, but the Clerks were drawing them into Form. Upon which, the Chief-Justice said, they would not make two Works of one Business. And the Petition being read, he said this was no Article of their Charge, nor was there any Act of Parliament, that required the Court to deliver the Grand-Juries Petitions: That there was a Proclamation about them; and that it was not reasonable the Court should be obliged to run on their Errands; and he thought it much, that they should come with a Petition to alter the King's Mind, declared in the News-Book. The Jury said, they did it not to impose on the Court, but (as other Juries had done) with all Submission they desired it; but the Court refused, bidding the Cryer return them their Petition. And Mr. Justice Jones told them, they had meddled with Matters of State, not given them in Charge, but presented no Bills of the Matters given in Charge. They answered as before, that they had many before them, that would be ready in due Time. Notwithstanding which, the said Justice Jones told them, they were discharged from farther Service. But Philip Ward (the Clerk that attended the said Jury) cried out, No, No, they have many Bills before them; for which the Court understanding (as it seems to this Committee) a secret Reason, which the Clerk did not, reproved him, asking if he or they were to give the Rule there? The Cryer then told the Court, they would not receive their Petition; the Chief Justice bid him let it alone, so it was left there, and the Jury returned to the Court-House, and there found several Constables with Presentments of Papists and other Offenders, as the Jury had directed them on the 21st before; but could not now receive the said Presentments, being discharged. Whereby much Business was obstructed, though none of the said Informants ever knew the said Jury discharged, before the last Day of the Term, which was not till four Days after. And it farther appeared to the Committee, by the Evidences of Samuel Astry, Jasper Waterhouse, and Philip Ward, Clerks, that have long served in the said Court, that they were much surprized at the said Discharging of the Jury, in that it was never done in their Memory before; and the rather, because the said Waterhouse as Secondary, constantly enters on that Grand Jury's Paper, that the last Day of the Term is given them to return their Verdict on, as the last Day but one is given to the other two Grand Juries of that County, which Entry is as followeth.
Trinit. 32 Car. II.
Middlesex Ossulston Hundred.
Juratores habent diem ad veredictum suum reddendum usque diem Mercurii proxime post tres septimanas sanctæ Trinitatis. Being the last Day of the Term, and so in all the other Terms the last Day is given; which makes it appear to this Committee, that they were not in Truth discharged for not having their Presentments ready, since the Court had given them a longer Day, but only to obstruct their farther Proceedings; and it appeared by the Evidence aforesaid to this Committee, that the four Judges of that Court were present at the Discharging of the said Jury, and it did not appear that any of them did dissent therein; upon consideration whereof, the Committee came to this Resolution:
Resolved, That it is the Opinion of this Committee, that the Discharging of the Grand Jury of the Hundred of Ossulston, in the County of Middlesex, by the Court of King's-Bench, in Trinity-Term last, before the last Day of Term, and before they had finished their Presentments, was illegal, arbitrary, and a high Misdemeanour.
This Committee proceeded also to enquire into a Rule of the Court of King's-Bench, lately made against the publishing a Book called, The Weekly Packet of Advice from Rome; or, The History of Popery: And Samuel Astry, Gent. examined thereupon, informed this Committee, that the Author of the said Book, Henry Carr, had been informed against for the same, and had pleaded to the Information; but before it was tried, a Rule was made on a Motion, as he supposeth against the said Book: All the Judges of that Court, (as he remembers) being present and none dissenting. The Copy of which Rule he gave into this Committee, and is as followeth:
Dies Mercurii proxime post tres septimanas sanctæ Trinitatis. Anno 32 Car. II. Regis,
Ordinatum est quod liber intitulat' The Weekly Packet of Advice from Rome; or, The History of Popery, non ulterius imprimatur vel publicetur per aliquam personam quamcunque, per Cur.
And this Committee, admiring that Protestant Judges should take Offence against a Book whose chief Design was to expose the Cheats and Foppery of Popery, enquired farther into it, and found by the Evidence of John Curtis, that the said Book had been licensed for several Months, that her Husband paid for the Copy, and entered it in the Hall-Book of the Company. But for all this, she could not prevail, by those Reasons, with the Lord Chief Justice Scroggs, to permit it any longer; who said, 'twas a scandalous Libel, and against the King's Proclamation, and he would ruin her if ever she printed it any more. And soon after she was served with the said Rule, as the Author, and other Printers were; and, by the Author's Evidence it appears that he was taken, and brought before the said Chief Justice by his Warrant, above a Year since; and upon his owning he writ part of that Book, the Chief Justice called him Rogue and other ill Names; saying he would fill all the Goals in England with such Rogues, and pile them up as Men do Faggots: and so committed him to Prison, refusing sufficient Bail, and saying he would Goal him, to put him to Charges; and his Lordship observed his Word punctually therein, forcing him to his Habeas Corpus, and then taking the same Bail he refused before. Upon which this Committee came to this Resolution,
Resolved, That it is the Opinion of the Committee, that the Rule made by the Court of King's-Bench, in TrinityTerm last against printing a Book called, The Weekly Packet of Advice from Rome, is illegal and arbitrary.
And the Committee proceeded farther, and, upon Information, that a very great Latitude had been taken of late by the Judges, in imposing Fines on the Persons found guilty before them, caused a Transcript of all the Fines imposed by the King's-Bench since Easter-Term, in the 28th of his Majesty's Reign, to be brought before them, from the said Court by Samuel Astry Gent. By perusal of which it appeared to this Committee, that the Quality of the Offence, and the Ability of the Person found guilty, have not been the Measures that have determined the Quantity of many of these Fines; which being so very numerous, the Committee refer themselves to those Records as to the general, instancing some Particulars, as follow.
Upon Joseph Brown of London, Gent. on an Information for publishing a printed Book, called, The long Parliament dissolved; in which is set forth these Words:
[Trinit. 29 Car. II.]
'Nor let any Man think it strange, that we account it Treason for you to sit and act contrary to our Laws; for if in the first Parliament of Richard II. Grimes and Weston, for lack of Courage only, were adjudged guilty of HighTreason for surrendering the Places committed to their Trust; how much more you, if you turn Renegadoes to the People that entrusted you; and as much as in you lie, surrender not a little pitiful Castle or two, but all the legal Defence the People of England have for their Lives, Liberties and Properties, at once! Neither let the vain Persuasion delude you, that no Precedent can be found, that one English Parliament hath hanged up another; though peradventure even that may be proved a Mistake: For an unprecedented Crime calls for an unprecedented Punishment; and if you shall be so wicked to do the one, or rather endeavour to do (for now you are no longer a Parliament) what ground of Confidence you can have, that none will be found worthy as to do the other, we cannot understand: And do faithfully promise, if your Unworthiness provoke us to it, that we will use our honest and utmost Endeavours, (whenever a new Parliament shall be called) to chuse such as may convince you of your Mistake: The old and infallible Observation, that Parliaments are the Pulse of the People, shall lose its Esteem; or you will find, that this your Presumption was over-fond; however, it argues but a bad Mind, to sin, because 'tis believed it shall not be punished.'
The Judgment was, that he be fined 1000 Marks, be bound to good Behaviour for seven Years, and his Name struck out of the Roll of the Attornys, without any Offence alledged in his said Vocation. And the publishing this Libel consisted only in subscribing a Pacquet, with this inclosed, to the East-Indies. Which Fine he not being able to pay, (living only upon his Practice) he lay in Prison for three Years, 'till his Majesty graciously pardoned him, and recommended him to be restored to his Place again of Attorney, by his Warrant dated the 15th of December, 1679. Notwithstanding which, he has not yet obtained the said Restoration from the Court of King's-Bench.
[Hill. 29 and 30 Car. II.]
Upon John Harrington, of London, Gent. for speaking these Words, laid in Latin thus: Quod nostra gubernatio de tribus statibus consistebat, & si rebellio eveniret in regno, & non accideret contra omnes tres status, non est rebellio. A Fine of 1000 l. Sureties for good Behaviour for seven Years, and to recant the Words in the open Court; which Fine he was in no Capacity of ever paying.
[Hill. 31 and 32 Car. II.]
Upon Benjamin Harris, of London, Stationer, on an Information for printing a Book called, An Appeal from the Country to the City, setting forth these Words:
'We in the Country have done our Parts, in chusing for the generality good Members to serve in Parliament: But if (as our last two Parliaments were) they must be dissolv'd or prorogued whenever they come to redress the Grievances of the Subject, we may be pitied, not blamed, if the Plot takes effect: And in all Probability it will. Our Parliaments are not then to be condemned, for that their not being suffered to sit occasioned it.'
Judgment to pay 500 l. Fine, to stand on the Pillory an Hour, and give Sureties for good Behaviour for three Years. And the said Benjamin Harris informed this Committee, that the Lord Chief Justice Scroggs pressed the Court then to add to this Judgment, his being publicly whipt; but Mr. Justice Pemberton, holding up his Hands in admiration at their Severity therein, Mr. Justice Jones pronounced the Judgment aforesaid: And he remains yet in Prison, unable to pay the said Fine.
Notwithstanding which Severity in the Cases forementioned, this Committee has observed the said Court has not wanted, in any other Cases, an extraordinary Compassion and Mercy, though there appeared no public Reason judicially in the Trial; as in particular:
[Hill. 31 and 32 Car. II.]
Upon Thomas Knox principal, on an Indictment of Subornation and Conspiracy, against the Testimony and Life of Dr. Oates, for Sodomy; and also against the Testimony of William Bedloe; a Fine of 200 Marks, a Year's Imprisonment, and to find Sureties for good Behaviour for three Years.
Upon John Lane, for the same Offence, a Fine of 100 Marks, to stand in the Pillory for an Hour, and to be imprisoned for one Year.
Upon John Tasborough, Gent. on an Indictment for Subornation of Stephen Dugdale, tending to overthrow the whole Discovery of the Popish Plot; the said Tasborough being affirmed to be a Person of good Quality, a Fine of 100 l. Upon Anne Price for the same Offence, 200 l.
[Trin. 3 Car. II.]
Upon Nathaniel Thompson and William Badcock, on an Information for printing and publishing a weekly Libel, called, The true Domestic Intelligence, or, News both from City and Country, and known to be popishly affected, a Fine of 3 l. 6 s. 8 d. on each of them.
Upon Matthew Turner, Stationer, on an Information for vending and publishing a Book called the Compendium; wherein the Justice of the Nation in the late Trials of the Popish Conspirators, even by some of these Judges themselves, is highly arraigned; and all the Witnesses for the King horribly aspersed: And this being the common notorious Popish Bookseller of the Town, Judgment to pay a Fine of 100 Marks; and is said to be out of Prison already.
[Trin. 32. Car. II.]
Upon— Loveland, on an Indictment for a notorious Conspiracy and Subornation, against the Life and Honour of the Duke of Buckingham, for Sodomy, a Fine of 5 l. and to stand an Hour in the Pillory.
[Mich. 22. Car. II.]
Upon Edward Christian Esq; for the same Offence, a Fine of 100 Marks, and to stand an Hour in the Pillory: And upon Arthur Obrien, for the same Offence, a Fine of 20 Marks, and to stand an Hour in the Pillory.
Upon consideration whereof, this Committee came to this Resolution:
Resolved, That it is the Opinion of this Committee, that the Court of King's-Bench, (in the Imposition of Fines on Offenders of late Years) have acted arbitrarily, illegally and partially, favouring Papists, and Persons popishly affected, and excessively oppressing his Majesty's Protestant Subjects.
And this Committee being informed, that several of his Majesty's Subjects had been committed for Crimes bailable by Law, although they then tendered sufficient Sureties, which were refused, only to put them to Vexation and Charge; proceeded to enquire into the same, and found, that not only the forementioned Henry Carr had been so refused the common Right of a Subject, as is above said, but that George Broome, being a Constable last Year in London, and committing some of the Lord Chief Justice Scroggs's Servants, for great Disorders, according to his Duty, he was in a few Days arrested by a Tipstaff, without any London Constable, and carried before the said Chief Justice, by his Warrant to answer for the committing of the Persons above said: but being there, was accused of having spoken irreverently of the said Chief Justice, and an Affidavit read to him to that Purpose; and was falsly (as the said George Broome affirms) sworn against, by two Persons that use to be common Bail in that Court, and of very ill Reputation: Upon which he was committed to the King's-Bench, though he then tendred two able Citizens and Common-Council-men of London to be his Bail: And he was forced to bring his Habeas Corpus, to his great Charge, before he came out, when the Marshal, Mr. Cooling, exacted 5 l. of him, of which he complained to the Chief Justice, but had no other Answer, than he might take his Remedy at Law. but the said Marshal fearing he should be questioned, restored him two Guineas of it.
'And farther, this Committee was informed by Francis Smith, Bookseller, That about Michaelmas was twelve-month he was brought before the said Chief-Justice, by his Warrant, and charg'd by the Messenger Robert Stephens, that he had seen some Parcels of a Pamphlet called, Observations on Sir George Wakeman's Trial in his Shop: Upon which the Chief-Justice told him, he would make him an Example, use him like a Boor in France, and pile him and all the Booksellers and Printers up in Prison, like Faggots; and so committed him to the King's-Bench, swearing and cursing at him in great Fury. And when he tendered three sufficient Citizens of London for his Bail, alledging, Imprisonment in his Circumstances would be his utter Ruin, the Chief-Justice replied, the Citizens looked like sufficient Persons, but he would take no Bail: And so he was forced to come out by a Habeas Corpus, and was afterwards informed against for the said Matter, to his great Charge and Vexation. And a while after Francis, (the Son of the said Francis Smith) was committed by the said Chief Justice, and Bail refused, for selling a Pamphlet called, A New-Year's Gift for the said Chief-Justice, to a Coffee-House; and he declared to them he would take no Bail, for he would ruin them all.
'And farther it appeared to this Committee, that the said Chief-Justice, (about October was twelve Month) committed in the like manner Jane Curtis, she having a Husband and Children, for selling a Book called, A Satyr against Injustice; which his Lordship called a Libel against him: And her Friends tendering sufficient Bail, and desiring him to have mercy upon her Poverty and Condition, he swore by the Name of God she should go to Prison; and he would shew no more mercy than they could expect from a Wolf that came to devour them; and she might bring her Habeas Corpus and come out so; which she was forced to do, and was informed against, and prosecuted to her utter Ruin, four or five Terms after.
'In like manner it appeared to this Committee, that about that Time also, Edward Berry, Stationer of Gray's-Inn, was committed by the said Chief-Justice, being accused of selling, The Observations on Sir George Wakeman's Trial; and though he tendered 1000 l. Bail, yet the Chief-Justice said, he would take no Bail, he should go to Prison, and come out according to Law. And after he with much Trouble and Charge got out by a Habeas Corpus, he was forced by himself, or his Attorney, to attend five Terms before he could be discharged, though no Information was exhibited against him in all that Time. In consideration whereof, and of others of the like Nature (too tedious here to relate) this Committee came to this Resolution:
Resolved, That it is the Opinion of this Committee, that the refusing sufficient Bail in these Cases, wherein the Persons committed were bailable by Law, was illegal, and a high Breach of the Liberty of the Subject.
'And this Committee being informed of an extraordinary kind of a Charge, given at the last Assizes at Kingston, in the County of Surry, by Mr. Baron Weston, and proceeding to examine several Persons then and there present; it was made appear to this Committee, by the Testimony of John Cole, Richard Mayo, and John Pierce, Gentlemen, and others; some of whom put down the said Baron's Words in Writing immediately; That Part of the said Charge was to this Effect: He inveighed very much against Farel, Luther, Calvin, and Zuinglius, condemning them as Authors of the Reformation, which was against their Princes Minds: And then adding to this purpose, 'Zuinglius set up his Fanaticism, and Calvin built on that blessed Foundation; and to speak truth, all his Disciples are seasoned with such a sharpness of Spirit, that it much concerns Magistrates to keep a strait Hand over them; and now they are restless, amusing us with Fears, and nothing will serve them but a Parliament. For my part, I know no Representative of the Nation but the King, all Power centers in him; 'tis true, he does entrust it with his Ministers, but he is the sole Representative; and i' faith, he has Wisdom enough to entrust it no more in these Men, who have given us such late Examples of their Wisdom and Faithfulness. And this Committee taking the said Matter into their Consideration, came to this Resolution;
Resolved, That it is the Opinion of this Committee, that the said Expressions in the Charge given by the said Baron Weston, were a Scandal to the Reformation, in derogation of the Rights and Privileges of Parliaments, and tending to raise discord between his Majesty and his Subjects.
And this Committee being informed by several Printers and Booksellers, of great Trouble and Vexation given them unjustly, by one Robert Stephens, called a Messenger of the Press: The said Stephens being examined by this Committee, by what Authority he had proceeded in that manner, produced two Warrants under the Hand and Seal of the ChiefJustice Scroggs, which were in hæc verba:
Whereas there are divers ill-disposed Persons, who do daily print and publish many seditious and treasonable Books and Pamphlets, endeavouring thereby to dispose the Minds of his Majesty's Subjects to Sedition and Rebellion: And also infamous Libels, reflecting upon particular Persons, to the great Scandal of his Majesty's Government. For suppressing whereof, his Majesty hath lately issued out his royal Proclamation: And for the more speedy suppressing the said seditious Books, Libels and Pamphlets, and to the end that the Authors and Publishers thereof may be brought to their Punishment.;
'These are to will and require you, and in his Majesty's Name to charge, and command you, and every of you, upon fight hereof, to be aiding and assisting to Robert Stephens, Messenger of the Press, in the Seizing on all such Books and Pamphlets as aforesaid, as he shall be informed of, in any Booksellers or Printers Shops or Warehouses, or elsewhere whatsoever, to the end they may be disposed as to Law shall appertain. Also if you shall be informed of the Authors, Printers or Publishers of such Books or Pamphlets, as are above-mentioned, you are to apprehend them, and have them before one of his Majesty's Justices of the Peace, to be proceeded against according to Law. Dated this 29th of November, 1679.
To Robert Stephens, Messenger of the Press; and to all Mayors, Sheriffs, Bailiffs, Constables, and all other Officers and Ministers whom these may concern.
Whereas the King's Majesty hath lately issued out his Proclamation, for suppressing the printing and publishing unlicensed News, Books and Pamphlets of News; notwithstanding which, there are divers Persons who do daily print and publish such unlicensed Books and Pamphlets:
'These are therefore to will and require you, and in his Majesty's Name to charge and command you, and every of you, from time to time, and at all times so often as you shall be thereunto required, to be aiding and assisting to Robert Stephens, Messenger of the Press, in the seizing of all such Books and Pamphlets as aforesaid, as he shall be informed of, in any Bookseller's-Shop, or Printer's Shop or Warehouse, or elsewhere whatsoever, to the end they may be disposed of, as to Law shall appertain. Likewise if you shall be informed of the Authors, Printers or Publishers of such Books and Pamphlets, you are to apprehend them, and have them before me, or one of his Majesty's Justices of the Peace, to be proceeded against as to Law shall appertain. Dated this 28th day of May, Anno Dom. 1680.
To all Mayors, Sheriffs, Bailiffs, Constables and all other Officers and Ministers whom these may concern.
To Robert Stephens, Messenger of the Press.
Upon view whereof, this Committee came to this Resolution:
'Resolved, That it is the Opinion of this Committee, that the said Warrants are arbitrary and illegal.
'And this Committee being informed of certain scandalous Discourses, said to be uttered in public Places by the Lord Chief-Justice Scroggs, proceeded to examine Sir Robert Atkins, late one of the Justices of the Common-Pleas concerning the same; by whom it appears, That at a SessionDinner at the Old-Bailey, in the Mayoralty of Sir Robert Clayton, who was then present, the said Chief-Justice took occasion to speak very much against Petitioning, condemning it as resembling 41, as factious and tending to Rebellion, or to that Effect; to which the said Sir Robert Atkins made no Reply, suspecting he waited for some Advantage over him. But, the Chief-Justice continuing and pressing him with the said Discourse, be began to justify Petitioning as the Right of the People; especially for the sitting of a Parliament, which the Law requires, if it be done with Modesty and Respect. Upon which the Chief-Justice fell into a great Passion: And there is some reason to believe, that soon after he made an ill Representation of what the said Sir Robert had then spoke, unto his Majesty: And this Committee was farther informed, that the said Sir Robert Atkins being in Circuit with the said Chief-Justice, at Summer-Assizes was twelve-month, at Monmouth (Mr. Arnold, Mr. Price and Mr. Bedloe being then in Company) the Chief-Justice fell severely, in public, upon Mr. Bedloe, taking off the Credit of his Evidence, and alledging he had over-shot himself in it, or to that Effect; very much to the Disparagement of his Testimony. And the said Sir Robert defending Mr. Bedloe's Evidence and Credit, he grew extreme angry and loud, saying, That he verily believed Langhorn died innocently. To which the said Sir Robert replied, he wondered how he could think so, when he had condemned him, himself, and had not moved the King for a Reprieve for him. All which matters of Discourse, this Committee humbly submit to the Wisdom and Consideration of this House, without taking upon them to give any Opinion therein.
'And this Committee proceeded farther, to enquire into some Passages that happened at Lent-Assizes last for the County of Somerset, at the Trial of Thomas Dare, Gent. there, upon an Indictment, for saying falsly and seditiously, 'That the Subjects had but two Means to redress their Grievances, one by Petitioning, the other by Rebellion:' And found that, though by his other Discourse, when he said so, it appeared plainly he had no rebellious Intent, in that he said, then God forbid there should be a Rebellion, he would be the first-Man would draw his Sword against a Rebel: yet he was prosecuted with great violence. And having pleaded, not guilty, he moved Mr. Justice Jones (who then sat Judge there) that he might try it next Assizes; for that Mr. Searle (who was by at the speaking of the Words, and a material Witness for his Defence) was not then to be had, and an Affidavit to that purpose was made and received. But the said Justice Jones told him, that was a Favour of the Court only, and he had not deserved any Favour, and so forced him to try it presently. But the Jury appearing to be an extraordinary one, provided on purpose, being all of Persons that had highly opposed Petitioning for the sitting of this Parliament, he was advised to withdraw his Plea; and the said Justice Jones encouraging him so to do, he confess'd the Words, denying any evil Intention, and gave the said Justice an Account in writing, of the Truth of the whole Matter, and made a Submission in Court, as he was directed by the said Justice, who promised to recommend him to his Majesty; but imposed a Fine of 500 l. on him, and to be bound to good Behaviour for three Yerrs: Declaring also, that he was turned out from being a Common-Counsellor of the Corporation of Taunton, in the said County, on pretence of a Clause in their Charter, giving such a Power to a Judge of Assize. And that the said Thomas Dare remains yet in Prison for the said Fine; in which matter of the Trial aforesaid, this Committee desireth to refer itself to the Judgment of this House.'
Resolutions on the Reports.
The Resolutions of the House of Commons, Nem. Con. upon the said Report:
1. 'That it is the Opinion of this House, that the discharging of the Grand Jury of the hundred of Oswaldston, in the County of Middlesex, by the Court of King's-Bench, in Trinity Term last, before the last Day of the Term, and before they had finished their Presentments, was arbitrary and illegal, destructive of public Justice, a manifest Violation of the Oaths of the Judges of that Court, and a means to subvert the fundamental Laws of this Kingdom, and to introduce Popery.
2. 'That it is the Opinion of this House, that the Rule made by the Court of King's Bench in Trinity Term last, against printing of a Book called, The weekly Pacquet of Advice from Rome, is illegal and arbitrary, thereby usurping to themselves legislative Power, to the great Discouragement of the Protestants, and for the countenancing of Popery.
3. 'That it is the Opinion of this House, that the Court of King's-Bench, in the Imposition of Fines on Offenders of late Years, have acted arbitrarily, illegally, and partially, favouring Papists, and Persons Popishly affected, and execssively oppressing his Majesty's Protestant Subjects.
4. 'That it is the Opinion of this House, that the refusing sufficient Bail in these Cases, wherein the Persons committed were bailable by Law, was illegal, and a high Breach of the Liberties of the Subject.
5. 'That it is the Opinion of this House, that the said Expressions in the Charge given by the said Baron Weston, were a Scandal to the Reformation, and tending to raise Discord between his Majesty and his Subjects, and to the Subversion of the ancient Constitution of Parliaments, and of the Government of this Kingdom.
6. 'That it is the Opinion of this House, that the said Warrants are arbitrary and illegal.'
The Resolutions of the Commons for the Impeachment of the said Judges:
Resolved, That Sir William Scroggs Knight, Chief Justice of the Court of King's-Bench, be impeached upon the said Report, and the Resolutions of the House thereupon.
Resolved, That Sir Thomas Jones, one of the Justices of the said Court of King's-Bench, be impeached upon the said Report, and Resolutions of the House thereupon.
Resolved, That Sir Richard Weston, one of the Barons of the Court of Exchequer, be impeached upon the said Report, and Resolutions of the House thereupon.
Ordered, That the Committee appointed to prepare an Impeachment against Sir Francis North, Chief Justice of the Court of Common-Pleas, do prepare Impeachments against the said Sir William Scroggs, Sir Thomas Jones, and Sir Richard Weston, upon the said Report and Resolutions.
Ordered, That the said Report, and the several Resolutions of this House thereupon, be printed; and that Mr. Speaker take care in the printing thereof, apart from this Day's other Votes.
(fn. 2) December 30, 1680. A Motion being made in the Behalf of Judge Raymond, that one Sherredan, in the Custody. of the Serjeant at Arms, by Order of the House, had moved for his Habeas Corpus; which he had denied, because he was committed by Order of the House, desiring the Opinion of the House:
Sir William Jones, on a Motion for admitting to Bail one committed by order of this House.
'Mr. Speaker, Sir, the Privileges of both Houses of Parliament are concerned in this Business, and in that the very Being of Parliaments: and therefore we must be careful what we do in it. I have perused the Habeas Corpus Bill, and do find, that there is not any thing in it that doth reach, or can be intended to reach to any Commitment made by either House of Parliament during Session. The Preamble of the Act, and all the Parts of it, do confine the Extent of the Act to Cases bailable, and directs such Courses for the Execution of the Act, as cannot be understood should relate to any Commitment made by either House. This House is a Court of itself, and part of the highest Court in the Nation, superior to those in Westminster-hall; and what Laws this House joins in making, are to blnd inferior Courts, but cannot be understood to bind themselves as a Court; that would prove not only dangerous, but destructive to the Dignity of Parliaments, and level them with the Courts in Westminster-hall. Great care ought to be taken how you allow of Restraints and Limitations to the Proceedings of both Houses of Parliament, being so great a Part of the Legislative Power of the Nation, lest thereby you should by degrees render them useless. A Commitment of this House is always in nature of a Judgment; and the Act is only for Cases bailable, which Commitments upon Judgments are not; at least Commitments by this House were never yet allowed to be bailable; and I suppose you will never grant them so to be. Can it be imagined that this House, who represent all the Commons of England, should not be entrusted with as much Power for the Preservation of their Constitution, upon which the Support of the Government so much depends, as ordinary Courts and Officers are entrusted with, which are only designed for the Welfare of particular Persons. I am of Opinion, that no Act can deprive this House of that Power which they have always exercised, of committing Persons without Bail, unless in express Words it be so declared: Nor of discharging upon Bail, after committed. The same Reasons which may be given for discharging such as are not committed for Breach of Privilege, if it be grounded on the Act for the Habeas Corpus, will hold as strong for the discharging of Persons committed for Breach of Privilege; and so consequently deprive this House of all its Power and Dignity, and make it insignificant. This is so plain and obvious, that all Judges ought to know it; and I think it below you to make any Resolve therein, but rather leave the Judges to do otherwise at their Peril, and let the Debate fall without any Question.'
What followed the same Day, related to Pensioners and Placemen sitting in Parliament; on which Occasion Sir F. Winnington expressed himself thus:
Sir F. Winnington, on Pensioners in Parliament.
'Mr. Speaker, Sir, the last House of Commons being sensible how narrowly this Nation escaped being ruined by a Sort of Monsters called Pensioners, which sate in the late long Parliament, had entered into a Consideration how to prevent the like from coming into fututre Parliaments; and in order thereto resolved, that they would severely chastise some of those that had been guilty, and make the best Laws they could to prevent the like for the future: And for that Purpose a Committee was appointed, of which Mr. Serjeant Gregory, now Judge Gregory, was Chairman: by which, many Papers relating to that Affair came to his Hands. Sir, I think it a Business of so great Importance, that it never ought to be forgotten, nor the Prosecution of it deferred. I have often heard, that England can never be destroyed but by itself: To have such Parliaments was the most likely way that ever yet was invented. I remember a great Lawyer said in this House, when it was debated in the last Parliament, that it was Treason; and he gave many learned Arguments to make it out. Whether it be so or no, I will not now offer to debate; but I think, that for those that are the Legislators of the Nation to take Bribes to undermine the Laws and Government of this Nation, that they ought to be chastised as Traitors. It was my fortune to sit here a little while in the long Parliament; I did observe that all those that had Pensions, and most of those that had Offices, voted all of a side, as they were directed by some great Officer, as exactly as if their Business in this House had been to preserve their Pensions and Offices, and not to make Laws for the good of them that sent them here. How such Persons could any way be useful for the support of the Government, by preserving a fair Understanding between the King and his People, but on the contrary how dangerous to bring in arbitrary Power and Popery, I leave to every Man's Judgment. They were so far from being the true Representatives of the People, that they were a distinct middle Interest between the King and the People; and their chief Business was to serve the End of some great Minister of State, though never so opposite to the true Interest of the Nation. Sir, this Business ought never to fall, though there should be never so many Prorogations and Dissolutions of Parliaments, before any thing be done in it; I think it is the Interest of the Nation, that it should be prosecuted from Parliament to Parliament, as if there were an Impeachment against them. And therefore, Sir, I would humbly move you to send some Members of this House to Judge Gregory, for the Papers he hath taken in his Custody relating to this Affair, that so you may in convenient time proceed farther herein, as you shall think good. And, Sir, being there is a Report that some of this House have now made a Bargain at Court for great Offices, in order to vitiate and corrupt their Votes in this House; which though but a Project to cast a Reflection on such Members, however to satisfy the World, I pray, Sir, let there be a Vote past, That no Member of this House shall accept of any Office under the Crown, during such time as he continues a Member of this House.
(fn. 3) Silas Titus.
'Mr. Speaker, Sir, I am so over-loaden with Melancholy, as that I can hardly speak in this Matter: For I have received so many Compliments as to my being constituted a great Minister of State, that I begun to flatter myself, as others flattered me, that I was really so. But now I do discover, that I have been but in a kind of a Dream; and to fear that I shall never in reality have any such Office. But whatever Vote you make to punish us Officers, I pray, Sir, let it not be so severe as that it may prejudice the Public. Suppose His Majesty should have occasion to send some Persons to Nimeguen for Plenipotentiaries, and there should not be any Men in England fit for it, but some that should be Members of this House, would you have the public Affairs of the Nation injured, rather than such Members should accept of such an Employment? Or suppose some Invasion should happen, and there were no Couragious, expert Admirals to be had, but such as were Members of this House, should they not accept thereof because of your Vote? To prevent these Inconveniencies, to leave us all some Hopes, I pray, Sir, add to your Votes, not without leave of the House.' After some farther Debate,
Resolved, That the several Writings, Papers, and Proceedings, relating to such Members of the late long Parliament, who received Allowances out of the Money appointed for secret Services, be produced to this House.
Resolved, That no Member of this House shall accept of any Office or Place of Profit from the Crown, without the Leave of this House; nor any Promise of any such Office or Place of Profit, during such Time as he shall continue a Member of this House.
That all Offenders herein shall be expelled the House.
January 5, 1680-1. Sir Richard Corbet reported the Articles appointed to be drawn up against Sir William Scroggs, Lord Chief Justice of the King's-Bench, which were as follows.
Articles of Impeachment against Lord Chief Justice Scroggs.
Articles of Impeachment of High-Treason and other great Crimes and Misdemeanors against Sir William Scroggs, Chief Justice of the Court of King's-Bench, by the Commons in Parliament assembled, in their own Name, and in the Name of all the Commons of England.
1. That he the said Sir William Scroggs, being then Chief Justice of the Court of King's Bench, hath traitorously and wickedly endeavoured to subvert the Fundamental Laws, and the established Religion and Government of this Kingdom of England; and, instead thereof, to introduce Popery, and an arbitrary and tyrannical Government against Law: which he hath declared by divers traitorous and wicked Words, Opinions, Judgments, Practices and Actions.
2. That the said Sir William Scroggs, in Trinity-Term last, being then Chief Justice of the said Court, and having taken an Oath duly to administer Justice, according to the Laws and Statutes of this Realm; in pursuance of his said traitorous Purposes, did, together with the rest of the said Justices of the said Court, several Days before the end of the said Term, in an arbitrary manner discharge the Grand Jury, which then served for the Hundred of Oswaldston, in the County of Middlesex, before they had made their Presentments, or had found several Bills of Indictment which were then before them; whereof the said Sir William Scroggs was then fully informed, and that the same would be tendered to the Court upon the last Day of the said Term; which Day then was, and, by the known Course of the said Court, hath always heretofore been given unto the said Jury, for the delivering in of their Bills and Presentments: By which sudden and illegal Discharge of the said Jury, the Course of Justice was stopped maliciously and designedly, the Presentments of many Papists and other Offenders were obstracted, and in particular a Bill of Indictment against James Duke of York, for absenting himself from Church, which was then before them, was prevented from being proceeded upon.
3. That whereas one Henry Carr had, for some Time before, published every Week a certain Book, intituled, The Weekly Pacquet of Advice from Rome; or, The History of Popery; wherein the Superstitions and Cheats of the Church of Rome were from Time to Time exposed; he the said Sir William Scroggs, then Chief Justice of the Court of King's-Bench, together with the other Judges of the said Court, before any legal Conviction of the said Carr of any Crime, did, in the same Trinity-Term, in a most illegal and arbitrary manner, make, and cause to be entred a certain Rule of that Court, against the printing of the said Book, in hæc verba:
Dies Mercurii proxime post tres septimanas sanctæ Trinitatis, Anno 32 Car. II. Regis.
Ordinatum est quod liber intitulat' The Weekly Packet of Advice from Rome; or, The History of Popery, non ulterius imprimatur vel publicetur per aliquam personam quamcunqu. Per. Cu
And did cause the said Carr, and divers Printers and other Persons, to be served with the same; which said Rule and other Proceedings were most apparently contrary to all Justice, in condemning not only what had been written, without hearing the Parties, but also all that might for the future be written on that Subject; a manifest Countenancing of Popery, and Discouragement of Protestants, and open Invasion upon the Right of the Subject, and an encroaching and assuming to themselves a legislative Power and Authority.
4. That the said Sir William Scroggs, since he was made Chief Justice of the King's-Bench, hath, together with the other Judges of the said Court, most notoriously departed from all Rules of Justice and Equality, in the imposition of Fines upon Persons convicted of Misdemeanours in the said Court; and particularly in the Term of Easter last past, did openly declare in the said Court, in the Case of one Jessop, who was convicted of publishing false News, and was then to be fined, that he would have regard to Persons and their Principles in imposing of Fines, and would set a Fine of 500 l on one Person for the same Offence, for the which he would not fine another: 100 l. And according to his said unjust and arbitrary Declaration, he the said Sir William Scroggs, together with the said other Justices, did then impose a Fine of 100 l. upon the said Jessop; although the said Jessop had, before that Time, proved one Hewit to be convicted as Author of the said false News. And afterwards in the same Term did fine the said Hewit, upon his said Conviction, only five Marks. Nor hath the said Sir William Scroggs, together with the other Judges of the said Court, had any Regard to the Nature of the Offences, or the Ability of the Persons, in the imposing of Fines; but have been manifestly partial and favourable to Papists, and Persons affected to, and promoting the Popish Interest, in this time of imminent Danger from them: And at the same time have most severely and grievously oppressed His Majesty's Protestant Subjects, as will appear upon View of the several Records of Fines, set in the said Court; by which arbitrary, unjust, and partial Proceedings, many of His Majesty's Liege People have been ruined, and Popery countenanced under Colour of Justice; and all the Mischiefs and Excesses of the Court of Star-Chamber, by Act of Parliament suppressed, have been again, in direct Opposition to the said Law, introduced.
5. That he, the said Sir William Scroggs, for the farther accomplishing of his said traitorous and wicked Purposes, and designing to subject the Persons, as well as the Estates of His Majesty's liege People, to his lawless Will and Pleasure, hath frequently refused to accept of Bail, though the same were sufficient, and legally tendered to him by many Persons, accused before him only of such Crimes, for which by Law, Bail ought to have been taken; and divers of the said Persons being only accused of Offences against himself; declaring at the same time, that he refused Bail, and committed them to Goal, only to put them to Charges; and using such furious Threats as were to the Terror of his Majesty's Subjects, and such scandalous Expressions as were a dishonour to the Government, and to the Dignity of his Office. And particularly, that he, the said Sir William Scroggs, did, in the Year 1679, commit and detain in Prison, in such unlawful manner, among others, Henry Carr, George Broome, Edward Berry, Benjamin Harris, Francis Smith, sen. Francis Smith, jun. and Jane Curtis, Citizens of London: Which Proceedings of the said Sir William Scroggs are a high Breach of the Liberty of the Subject, destructive to the Fundamental Laws of this Realm, contrary to the Petition of Right, and other Statutes, and do manifestly tend to the introducing of Arbitrary Power
6. That the said Sir William Scroggs, in farther Oppression of His Majesty's liege People, hath, since his being made Chief Justice of the said Court of King's-Bench, in an arbitrary Manner, granted divers general Warrants for attaching the Persons, and seizing the Goods of His Majesty's Subjects, not named or described particularly in the said Warrants; by means whereof many of His Majesty's Subjects have been vexed, their Houses entered into, and they themselves grievously oppressed contrary to Law.
7. Whereas there hath been a horrid and damnable Plot contrived and carried on by the Papists, for the Murthering the King, the Subversion of the Laws and Government of this Kingdom, and for the Destruction of the Protestant Religion in the same; all which the said Sir William Scroggs well knew, having himself not only tried, but given Judgment against several of the Offenders; nevertheless, the said Sir William Scroggs did, at divers Times and Places, as well sitting in Court as otherwise, openly defame and scandalize several of the Witnesses, who had proved the said Treasons against divers of the Conspirators, and had given Evidence against divers other Persons, who were then untried, and did endeavour to disparage their Evidence, and take off their Credit. Whereby, as much as in him lay, he did traitorously and wickedly suppress and stifle the Discovery of the said Popish Plot, and encourage the Conspirators to proceed in the same, to the great and apparent Danger of His Majesty's sacred Life, and of the well-established Government, and Religion of this Realm of England.
8. Whereas the said Sir William Scroggs, being advanced to be Chief Justice of the Court of King's-Bench, ought, by a sober, grave and virtuous Conversation, to have given a good Example to the King's Liege People, and to demean himself answerable to the Dignity of so eminent a Station; yet he the said Sir William Scroggs, on the contrary, by his frequent and notorious Excesses and Debaucheries, and his prophane and atheistical Discourses, doth daily affront Almighty God, dishonour His Majesty, give Countenance and Encouragement to all manner of Vice and Wickedness, and bring the highest Scandal on the public Justice of the Kingdom.
All which Words, Opinions and Actions of the said Sir William Scroggs, were by him spoken and done, traitorously, wickedly, falsely and maliciously, to alienate the Hearts of the King's Subjects from His Majesty, and to set a Division between him and them; and to subvert the Fundamental Laws, and the established Religion and Government of this Kingdom, and to introduce Popery, and an arbitrary and tyrannical Government, contrary to his own Knowledge, and the known Laws of the Realm of England. And thereby he, the said Sir William Scroggs, hath not only broken his own Oath, but also, as far as in him lay, hath broken the King's Oath to his People; whereof he, the said Sir William Scroggs, representing His Majesty in so High an Office of Justice, had the Custody: For which the said Commons do impeach him the said Sir William Scroggs, of High-Treason against our Sovereign Lord the King, and his Crown and Dignity, and other the High Crimes and Misdemeanours aforesaid.
And the said Commons, by Protestation saving to themselves the Liberty of exhibiting, at any time hereafter, any other Accusation or Impeachment against the said Sir William Scroggs, and also of replying to the Answer that he shall make thereunto, and of offering Proofs of the Premisses, or of any other Impeachments or Accusations that shall be by them exhibited against him, as the Case shall (according to the Course of Parliament) require; do pray, that the said Sir William Scroggs, Chief Justice of the Court of King'sBench, may be put to answer to all and every the Premisses, and may be committed to safe Custody; and that such Proceedings, Examinations, Trials and Judgments, may be upon him had and used, as is agreeable to Law and Justice, and the Course of Parliaments.' Upon which the following Speeches were made:
Sir Thomas Lee.
'Mr. Speaker, Sir, in my Opinion the Matter contained in the last seven Articles, doth not answer the first Article nor the Title: For therein you accuse Sir William Scroggs, in general Words of High-Treason, the Highest of Crimes; and when you come to Particulars, you instance the dismissing of Grand-Juries, prohibiting printing of Pamphlets; Inequality in levying of Fines, and the like. Sir, I would not be understood to be an Advocate for the Lord Chief Justice Scroggs; but I hope that as long as I sit here, you will always give me Leave to be an Advocate for this House; which I cannot more signally demonstrate, than by offering my Opinion against every thing, which I think will reflect upon the Justice or Prudence of the House, or prove any Hindrance to the finishing of those great Affairs you have under Debate.
'Sir, I am of Opinion, that though all these things contained in these Articles should be fully proved, they will not amount to Treason; and although it be true that you do but impeach, and that the Lords are to judge, yet it is not agreeable to the Justice of this House, that the Articles should be for Treason, unless you are well satisfied, that you can make out that the Matter contained in the Articles is so: Which I very much doubt; and therefore I am of Opinion, that the Articles ought only to be for High Crimes and Mis demeanours; which I am the more forward to press you earnestly to, because I am afraid if these Articles should go for High-Treason, it may occasion some Dispute with the Lords, who haply, if they do not conclude that the Matter contained in the Articles amounts to Treason, will not commit him, notwithstanding their Order made in the Earl of Danby's Case: And that may occasion such Misunderstandings, as may hinder all other Business. And also if you send it up for High-Treason, it may occasion another Dispute with the Bishops, whether they shall withdraw or no, when the Case comes to be tried. Upon the whole Matter, I think it will be much safer that you make the Impeachment for High Crimes and Misdemeanours only.'
'Mr. Speaker, Sir, my Obligation to serve my Country calls me to give you my Opinion in this Matter, and not any Kindness to my Lord Chief Justice: For I can safely declare, that I do not think him fit for that eminent Place now, because indeed I never thought he was fit: So that what I shall say proceeds from my Kindness to the Public, and particular Obligations to this House. I think we ought to be cautious how we increase Laws to take away our Lives; our Forefathers were very careful in it, as may appear by the Statute of 25 Edw. III. which was made to prevent the Judges from taking on them any Power, to declare any thing Treason, but what was express'd within that Statute; reserving all obvious Crimes of that Nature to the Judgment of the Nation in Parliament, who no doubt may declare other things Treason which are not within that Statute. But it is a Question with me, whether it can be done any other way than by Bill, that so it may be an Act of King, Lords and Commons, and not for the House of Lords only, the Commons only Prosecutors, and the King not concerned. That the Lords alone are proper Judges in many Cases, when Persons are prosecuted upon some known Law, is not to be doubted; but I much question if they ought to be so in Cases of declarative Treason, though upon an Impeachment from the House of Commons: For that were to allow the Lords alone, a power of making a Law in the Cases of the highest Nature, even of Life and Death. Sir, our Forefathers thought not good to entrust their Lives or Liberties with any one Estate alone, they thought with a Multitude of Counsellors there was most safety; and therefore I hope we shall be very cautious how we make a Precedent in the Case. And I am the more earnest in moving you herein, because I am very confident that no Precedent can be offered to make good, that there was ever any thing declared Treason in Parliament, which was not Felony by some express known Law before. And I hope we shall be so careful of Ourselves and our Posterity, as not to go about to make a Breach upon the Constitution of the Government, in this particular; but rather make the Impeachment only for High Crimes and Misdemeanours.'
Sir F. Winnington.
'Mr. Speaker, Sir, I cannot agree with that honourable Member that spoke last, as to his Notion, that the Parliament cannot declare any thing to be Treason, which was not before Felony by some known Law; the Statute of 25 Edw. III. leaves the Power at large to Parliaments, without any such Restriction. And I am of Opinion, that any thing that tends to the Destruction or Alteration of the Government, hath always been, and ought to be declared in Parliament, Treason, if brought there to be judged. The Parliament doth not in this make new Crimes, and then condemn them; but only declares that to be a Crime which was so before, and wanted nothing but condemnation. And it may consist with the Prudence of this House, as well to be careful not to weaken those Laws and Customs, which tend so much to the Preservation of the Government, as how to increase any that may tend to the Destruction of any one Man, by multiplying Precedents for chastising of Treason. The Crimes, for which Tresilian and the rest at that time were impeached, were not Felony by any known Law, and yet they were condemned in Parliament. Empson and Dudley were accused in general, for endeavouring to subvert the Government, which being in general Words was not Felony by any known Law, yet the Judges having recourse to Parliament, they were condemned. The Articles against Finch, Berkley, and the rest, were all for High-Treason, and the Matter contained in their Articles amounted to no more than what is now contained in this. And there is so little weight in the Cases that have been offered against this, that, I think, they are offered rather for Ornament than Argument. The Chancellor is the Keeper of the King's Conscience, and the Judges of his Coronation Oath. As they are in great Places, and have a great Power, so they ought to be the more careful how they behave themselves. And as they have greater Encouragement, so to be subject to more severe Chastisement than others, the Public being more concerned in their Actions; and therefore the Custom of Parliaments hath made that Treason in them, which is not so in other Persons. The Words of Judges and Privy Counsellors in some Cases are overt Acts of themselves. I think it will become the Wisdom of the Nation, to make all the Defence and Provision they can, against the corrupt Doings of Men in such Places. And I do not see what Danger can arise to our Posterities by such Proceedings. Is it not with the Parliament we entrust this Power? Who can imagine that a Parliament can ever be so constituted, as not to be carefully concerned in their Proceedings as to Life and Death; and only to concern themselves therein, when some extraordinary Exigencies, in which the Government is much concerned, requires it? What Man would desire to live after he was thought worthy of Death by such an Assembly? And notwithstanding what hath been said to extenuate the Crimes mentioned in these Articles, I think, the Order that was made in the King's-Bench about printing, by the Judges, was taking on them a Legislative Power, which hath formerly been judged Treason: And I think we live now in as dangerous Times as ever, and under as great a Necessity, to have a care of the Mischiefs that may happen to the Nation by ill Judges as ever. And I see no Reason to doubt our being able to make good these Articles; and therefore I pray that the Articles may be ingrossed as they are.'
'Mr. Speaker, Sir, I agree that it will become this House very well, to be very cautious how they make Precedents in Cases of Treason, which are the Sheet-Anchors of Life and Death: As also how they weaken parliamentary Proceedings, that are necessary to preserve the Government. And I hope that nothing but the true Merits of the Cause will lead us in a Matter of so great Importance, and neither Wit nor Oratory, nor any forced Explanation of the Laws. I see it agreed by all, that Parliaments have a Power of declaring Treason; the Question is, which is most Customary and Securest, to have it done by Bill, that so King, Lords and Commons may join therein; or whether by an Impeachment from the Commons, the Lords being only the Judges; or whether any thing ought or can be declared Treason by Parliament, which was not Felony by some known Law before.
'Sir, I am of Opinion that it is the safest and most agreeable to the Policy of this Government, that the declaring of any thing Treason in Parliament should be by Bill; that King, Lords and Commons may join therein, that such a precious thing as the Life of the Subject should have the greatest Security imaginable. However, it is not to be doubted, but it hath been practised otherways, and that many Persons have been condemned in Parliament, upon Impeachments from the Commons, for Facts which were not Treason by any known Law. And the Reason may be, thereby to prevent the Dangers that might arise, from some Ministers of State growing so great with the King, as that they should be able to secure him from ever giving his Consent to a Bill. In such a Case, by giving ill Counsel and other secret Courses, (haply as far as Treason, yet not known by any Law) they would be secure from Punishment, if this way of Proceeding against such a Person, where the King's Concurrence is not necessary, were not allowed of. And the preserving of this Right is so far from being contrary to the Wisdom of our Ancestors, that it is very agreeable to all their Proceedings in the Constitution of this Government, in order to balance it the better, and preserve it against the Designs of great ill Men. And as to the other Objection, that the Parliament cannot declare any thing Treason that was not Felony before by some known Law, I am quite of another Opinion, and do believe the Practice hath been otherways: The Judges in Richard the IId's Time were condemned for giving extrajudical Opinions, which, I think, were not Felony by any Statute-Law. A Knight of Cheshire was condemned in Parliament, for conspiring the Death of the King's Uncle. An Earl of Northumberland, for giving Liveries to so many Persons as were judged a little Army. And many other Cases I have read of, in which Persons have been condemned in Parliament, when their Crimes were not Felony by any known Law. But I do not take delight in ripping up of old Statutes or Precedents about Treasons. I am sorry the Misfortunes of our Times should make it now necessary. But if the Parliament, as I conclude, have often declared such things as these Treason, and the Commons have impeached Persons guilty of such Crimes for High-Treason; I see no just Objection why these Articles should not go up as they are drawn: For notwithstanding what hath been said to mitigate the Crimes contained in these Articles, I am of Opinion, that the Order made in the King's-Bench, about, printing their Warrants for seizing of Books, their dismissing of Grand-Juries, do tend to the Subversion of the Government, and hath been and ever ought to be, in Judges, judged Treason. And therefore, that it cannot consist with the Prudence of this House, nor the Security of the Nation, that this Person should be impeached of less than HighTreason. And therefore I move you, that the Articles may be engrossed.
'Mr. Speaker, Sir, we are not going about to declare any thing Treason, but to offer our Articles, and leave it to the Lords; therefore most of these Arguments would be more proper there: For we only impeach, they are to be the Judges, whether the Matter be Treason or no. It is true, we ought to be cautious what we do in it, because it is not proper that this House should impeach a Man for Treason without having good Grounds for it. But is not the Order about Printing a kind of an Act of State, to serve instead of a Law? Is not the Use of Grand-Juries a very essential Part of this Government? And is not the dismissing of them, as this Judge did, a Way to render them useless? Are not his Warrants to seize Books and Papers arbitrary, and doth not all tend to the Subversion of the Government? And what better Grounds should we have for our Proceedings? I think the Articles are well drawn, and ought to be ingrossed as they are.'
Sir Richard Temple.
'Mr. Speaker, Sir, I cannot admit that Parliaments, by Impeachments before the Lords, can make any thing Treason, but only such Matters as were Treason by CommonLaw, before the Statute of Edward the Third. And, I think, we ought to be so cautious of our Posterities, as not to press for such Precedents, lest you put into the Hands of the Lords a Power, for which we may have Cause to repent hereafter, but never get back again: For the Lords do not use to part with those Powers they once get. There are Precedents by which it appears, that the Lords have attempted to make declarative Treasons alone, without any Impeachment from the Commons. Have a care how you give them Encouragement to proceed therein; better keep to the other Way of making no declarative Treasons but by Bill.'
The Articles were read, and Question put:
Resolved, That the said Sir William Scroggs be impeached upon the said Articles, and that the said Articles, be ingrossed, and carried up to the Lords, by my Lord Cavendish.
Several other Judges order'd to be impeached.
Ordered, That the Committee appointed to examine the Proceedings of the Judges in Westminster-hall, and to prepare Impeachments against Sir Francis North, Chief-Justice of the Common-Pleas; Sir Thomas Jones, one of the Justices of the Court of King's-Bench; and Sir Richard Weston, one of the Barons of the Court of Exchequer, do bring in such Impeachments with all convenient Speed.
After the Articles were brought into the House of Lords, the Lord Chief-Justice put in the following Answer, viz.
The Answer of Sir William Scroggs, Knt. Chief-Justice of his Majesty's Court of King's-Bench; to the Articles of Impeachment exhibited against him by the Commons of England, in the late Parliament assembled.
'The said Sir William Scroggs, by and under Protestation, that there is no manner of High-Treason, or any Overt-Act of High-Treason, particularly alledged or expressed in the said Articles of Impeachment, to which the said Sir William Scroggs can, or is bound by Law, to make any Answer unto; and saving to himself, (and which he prayeth may be saved to him) both now and at all Times hereafter, all, and all manner of Benefit and Advantage of Exception to the Insufficiency of the said Articles, in point of Law; as well for that there is no Overt Act of Treason expressed therein, as for all other the Defects therein appearing, for Plea thereto; he saith, That he is in no wise guilty of all, or any the Crimes, Offences, or Misdemeanors, of what nature, kind, or quality soever, by the said Articles of Impeachment charged upon him, in Manner and Form as in and by the said Articles is supposed; which he is ready to aver and prove, as this honourable House shall award: And humbly submitteth himself, and the Justice of his Cause, to this most honourable House, and prayeth to be discharged of the Premisses, and to be hence dismissed and acquitted of all the Matters, Crimes, Misdemeanours, and Offences, in and by the said Articles of Impeachment charged upon him.' &c.
After this, a Petition of Sir William Scroggs was read.
To the Right Honourable the Lords spiritual and temporal in this present Parliament assembled; The humble Petition of Sir William Scroggs, Knt. Chief-Justice of his Majesty's Court of King's-Bench:
'That your Petitioner, the last Parliament, was impeached before your Lordships, by the House of Commons, of several Articles stiled High-Treason, and other great Crimes and Misdemeanors.
'To which your Petitioner hath now, with the first Opportunity, put in his Answer to this honourable House.
'Your Petitioner humbly prays, that your Lordships would be pleased to appoint the House of Commons to reply, that so a convenient Day may be appointed for the Hearing of the Cause; that your Petitioner may no longer lie under the Reproach of the Word High-Treason.'
And your Petitioner, as in Duty bound, shall ever pray, &c.
Ordered, That the Copy of this Answer and Petition shall be sent to the House of Commons.
But the Parliament being soon after prorogued, this Affair was dropped. However, the Lord Chief-Justice was removed from his high Station, and allowed a Pension for Life.
January 6, 1681. Colonel Birch made a Report of the Informations relating to the Irish Plot, and several Irish Witnesses were examined. And a Message from the Lords about the Irish Plot read.
Resolution concerning the Irish Plot.
Resolved, By the Lords Spiritual and Temporal in Parliament assembled, That they do declare, that they are fully satisfied that there now is, and, for divers Years last past, hath been a horrid and treasonable Plot contrived and carried on, by those of the Popish Religion in Ireland, for massacring the English, and subverting the Protestant Religion, and the ancient Established Government of that Kingdom, to which their Lordships desire the Concurrence of this House.
Speeches thereon. ; Sir W. Jones.
'Mr. Speaker, Sir, the Evidence which you have heard at the Bar, and the Report which hath been read, as to the Popish Plot in Ireland, is not only a plain Discovery, of the dangerous and deplorable Condition of the Protestants in Ireland, but a great Confirmation of what Dr. Oates and the rest of the Witnesses have said as to the Plot here. So that now, no Man can have any Excuse for not believing it, but such as are misled by others who know it too well, because they are in it. I cannot but observe what a Coherence and Agreement there is in the carrying of these two Plots. Fitz-Gerard tells you, that in 1662, several Officers were sent into France to get Money for carrying on of the Plot. And was it not in 1662, that we begun here with the Toleration, which gave the first Appearance of Popery to the Parliament? In 1672, we broke the Triple League, and entered into a strange Correspondence with France; then they actually listed and armed a great Number of Soldiers, which were first to go into France, and then to come back to carry on the Plot. In 75, and 76, all the Clergy in Ireland said the Duke of York should be King in 78. And Fitz-Gerard deposeth, that he then told the same to several Persons, who had since proved it before Sir John Davis, Secretary of State in Ireland. And doth it not appear by the Witnesses here, that they intended about that Time to cut off the King? It appears, that they intended to massacre most of the Protestants, and to conquer others, and that this they hoped to do by Assistance expected from France, of Men and Arms, as soon as that King should be disengaged of the War he was engaged in with the Confederates. And doth not this agree, not only with Dr. Oates's Discovery, but Prance's too? And did we not, after we had assisted the French with about 12000 Men, most Irish, and helped them in the carrying on of that War, send Plenipotentiaries to Nimeguen, in order to make up a general Peace, that so he might be at leisure about that time, that the said Party expected his Assistance, and that the Clergy had told FitzGerard, that the Duke should be King? Upon the Discovery of the English Plot, the King, Lords, and Commons, declared it a horrid, damnable, and execrable Plot: Now upon the Discovery of this Irish-Plot, the Lords Spiritual and Temporal have declared the same of it. But to what Purpose I know not, unless it be to discover the Strength of the Popish Party, in that after you know your Danger, and have declared it in Parliament, yet that their Interest is strong enough to baffle ours, and to prevent all manner of Remedies or future Security; nay, and to make you eat your own Declarations up again, and be ashamed (if possible) that ever you made such. This hath been the Effect of the Declarations so often made in Parliament as to the English Plot: And I am afraid, that this Declaration that hath been read, is all that will be done for the Security of the Protestants in Ireland. For notwithstanding all these Discoveries, which are the greatest that ever were, in a Case of so great a Conspiracy, such is their Influence and Authority, that they have not only saved their own Party from being any way weakened, (unless by those few that have been hanged) but have gained a great Number of the Protestants, to join and contribute as much to the carrying on of their Design as they can desire. The truth is, Sir, England can never be destroyed but by itself; and the Papists well know, this must be done by dividing us. If ever there were a Popish Miracle, it is in this, that seeing the Knife is so near our Throats, they should be able so to infatuate us, that, instead of making any Preparation to prevent them, we court all manner of Divisions and Animosities amongst ourselves, and cherish every Project of that Party that tends to our Ruin, with as much Earnestness as if it tended to our Safety. But, though this Witchcraft of theirs hath had a strange Power with People without Doors, yet I hope it will never have any Operation here, to prevent us from doing our Endeavours. And therefore seeing by this Discovery we find again, that all the Plot centers in the Duke of York, let us, after we have agreed to that the Lords have sent down, make a Declaration to this Purpose, that the Duke of York's being a Papist, and the Expectation which that Party have of his coming such to the Crown, hath given the greatest Encouragement to the Popish Plot in Ireland, as well as here.
Sir H. Capel.
'Mr. Speaker, Sir, as the Irish Plot doth agree with the English Plot in several Circumstances before it broke out, so afterwards in the Prosecution of it. Were not the Witnesses intimidated and discouraged, or their Evidence consumed or turned into Ridicule? And was not the same done here? Were not some of them, to prevent their Evidence, ship'd off and never heard of more; and others strangely tormented? And doth not that in some measure answer with the Death of Sir Edmundbury Godfrey? Did not Sir John Davis and others in great Offices there, do all that they could to stifle the discovery of the Plot? And have not many of our Ministers done the same here? Were there not strange Endeavours used, to put off the Trials of such as were accused about the Plot, or to acquit them when they came to a Trial? And have not the same Endeavours been used here as to the Lords in the Tower, and the Trial of Wakeman, and many others? And, after all these Discoveries what have we done, or what are we doing to secure ourselves against this Party? Truly, Sir, I know not of any thing: But on the other hand can tell you, that great Things are doing to carry on the Plot. I see, that in order to discover the mighty Power of that Party, two Parliaments have already been dissolved without doing any thing against Popery, and I am afraid that this will have no better success. And in the Intervals of Parliaments, I observe, that all Heads are at work to persuade the People out of all the Particulars of the Plot, and allow them only a general Notion, that the Papists would bring in their Religion if they could, but withal endeavour to persuade them that it is impossible: that so they need not be afraid of it; and that the Fears and Jealousies of Popery are created by ill Men, that have a Design upon the Government, or Fanatics that have a Design upon the Church, and that all will end in Forty-one. I observe also, that the Witnesses that have come in to discover the Plot, are more and more defamed and discouraged; and all others in favour of Popery, very much cherished: And will not such Proceedings, and such Opinions as these, if well infused into the People, be serviceable to that Party, not only by dividing thereby, the Protestant Interest, but by securing to themselves this Party so misled, to give them Assistance in the Disguise they will assume; until they have conquered any Party that may oppose them, and be able to stand on their own Bottom? And may they not go a great way to mislead a great many credulous Persons, especially if Parliaments be kept off, and the Press and the Puspit too (though I hope better) should be directed that way? And as these Opinions will give a greater Encouragement and Strengthening to that Party, for the carrying on of their Plot, and for all manner of new Contrivances; so will the Entertainment the Discoveries of the last Plot have met with, secure the Papists from ever having more Discoveries made of what they are transacting And will not the Course that is taken of putting into all Offices, either of Trust or Profit, no Persons but such who they find will thus be misled, either by their Ambition, because they see it is the only way to Preferment, or because they have not Understanding to see these Designs at a distance, be a great help to them also? I think, Sir, the carrying on of these things thus, by such great Authority, after the discovery of such a Plot, and the contrary Endeavours of three Parliaments, are great things to encourage the going on of the Plot, after they have first reduced the State of Popery to the same Condition it was in before the Plot broke out; that so it may creep on upon us again, as they shall think may be most for their Advantage. And although I will not undertake to fathom the Depth of divine Providence, yet I am afraid, if we should grow careless, to secure our selves after such supernatural Helps, we may therein provoke God Almighty to be angry with us. And because amongst the Inventions that are afoot, there is much Noise made about the Time of Forty-one, I cannot but observe, that there is something in the Evidence of the Irish Plot that agrees with Forty-one. Then there was a great Massacre in Ireland, as now intended: I have some reason to remember, with Sorrow and Indignation, the Miseries of Forty one; but am afraid the Discourse of those Times is, in this Conjuncture, made use of to bring on the like Miseries again upon us, and not in order to prevent them; because I find, that those that talk most of preventing the Effect, carry on the Cause as much as they can; which to me is a Contradiction. I am of Opinion, that the Endeavours that were used before Forty-one, to possess the People against Parliaments, and of the King's Power to raise Money without Parliaments, was the great Cause of our Miseries in Forty-one. And I know no good Reason, why we should not suspect those who carry on the same Designs now (tho' with some little Variation) should not endeavour to bring about some alteration in the Government again, as well as those, that shew it in nothing but opposing of Popery; tho' the great Power that Party have, in representing Matters, have made it to be dangerous to the State. But I see we are like to have little Assistance, to prevent the carrying on of these Designs in these shapes; they must have their Course. I do agree, that we may do well to add to this Resolution of the Lords, That the Duke's being a Papist, and their Hopes of his coming such to the Crown, hath given the greatest Hopes and Encouragement to the Popish Plot in Ireland, as well as in this Kingdom. And if the Lords Spiritual and Temporal should agree to it, I hope we may in time do something against Popery: For it would be very hard, if after they have agreed in the Cause, they should deny to join with us in the Remedy. And seeing the Bishops have agreed there is a Popish Plot in Ireland, I hope the Clergy will believe there hath been one in England, and consider the Danger of a Popish Successor and Popish King, and preach and pray against it: And then I shall conclude they are in good earnest against Popery, and that we should soon be able to vanquish this common Enemy. And then I think it would be the Interest of the Nation, to settle Matters relating to the Church, not only so as to stand against all Opposers, but to be more beautiful and triumphant than ever.
'Mr. Speaker, Sir, Solomon faith, there is no new thing under the Sun; but whoever will but consider, what great Endeavours have been used to stifle these Plots, and how few to prevent the like for the future, or the Danger arising from them, must conclude, that the like was never done in such a Case before. All the Plots center in the Duke: What is done with him? He is sent into Scotland to make an Interest there, that so the Government of that Kingdom, with an Army of 22,000 Men already settled, and what more may be got, may be as ready at his Command as the Strength of this Nation is here. A strange way of weakening an Enemy! And doth the Duke's Interest go backward here in his Absence? No, all those about the King are of his placing: And though we think him in Scotland, yet he is here too, as if there were Transubstantiation in the Case. I do not understand how the great Noise of Forty-one, that is now made, can tend to the securing us against Popery; but the Fear of that (which I am sure I have a great deal of reason to remember) may several Ways be used for the bringing in of Popery; and I have the more reason to fear so, because I am informed, that the Justice of Peace, who hath writ so many Books to fill the People's Heads with Notions about Fortyone, is now fled, because of Evidence given before the Lords of his being a Papist. I wish we could do something against the common Enemy, whose Power is so great as bids defiance to us; and then I shall be ready to contribute my poor Endeavours, as earnestly against Forty-one Men, if they be not so high as the Moon: For, I must confess, as yet I cannot find them out here below. And if these Churchmen would but join with us in ridding us of Popery, I would also join in preventing their Fears of Fanatics. Sir, I think you have a very good Motion made for a good Addition to the Lords Vote, as to the Duke of York's being the Cause of the Irish Plot also: I pray, let it be added, that so we may see whether the Bishops will do any thing against the Duke or no; for if they should, haply the Clergy may come in time to consider the Danger of a Popish Successor and Popish King, and preach and pray against it, as much as against Fanatics. If not, and the Doctrine be true which I have often heard, that there is no Distinction between the Duke's Interest and the Popish Interest, I am afraid we are in a bad Condition.'
Resolved, That this House doth agree with the Lords in the said Vote, with the Addition of these Words, That the Duke of York's being a Papist, and the Expectation of his coming to the Crown, hath given the greatest Countenance and Encouragment thereto, as well as to the horrid Popish Plot in this Kingdom of England.
A Motion being made and seconded, for the impeaching of the Earl of Tyrone,
Earl of Tyrone impeached.
Resolved, That Richard Poure, Earl of Tyrone in the Kingdom of Ireland, be impeached of High-Treason.
Ordered, That the Lord Dursly go up to the Bar of the Lords, and impeach him of High-Treason in the Name of this House, and of all the Commons of England, and do pray that he may be committed to safe Custody.
January 7, 1681. His Majesty's Message, sent on Tuesday last, was read.
His Majesty's Message read.
His Majesty's most gracious Message to the Commons in Parliament, January 4, 1680-1.
His Majesty received the Address of this House, with all the Disposition they could wish, to comply with their reasonable Desires; but upon perusing it, he is sorry to see their Thoughts so wholly fixed upon the Bill of Exclusion, as to determine that all other Remedies for the suppressing of Popery will be ineffectual: His Majesty is confirmed in his Opinion against that Bill, by the Judgment of the House of Lords, who rejected it. He therefore thinks, there remains nothing more for him to say, in Answer to the Address of this House, but to recommend to them, the Consideration of all other Means for the Preservation of the Protestant Religion, in which they have no Reason to doubt of his Concurrence, whenever they shall be presented to him in a Parliamentary way: And that they would consider the present State of the Kingdom, as well as the Condition of Christendom, in such a Manner as may enable him to preserve Tangier, and secure his Alliances abroad, and the Peace and Settlement at home.'
Speeches thereon. ; H. B. perhaps Boscawen, it appearing by the Journals that he was that Day in the House.
'Mr. Speaker, Sir, his Majesty is pleased to say in his Message, that he is confirmed in his Opinion against the Exclusion-bill, by the Judgment of the House of Lords; and that he is sorry to see that this House hath such an Opinion of it, as to conclude all other Ways and Means insufficient. He is also pleased to say, that we have no Reason to doubt his Concurrence, in any other Means that shall tend to the Preservation of the Protestant Religion, when presented to him in a parliamentary Way, which I do not doubt but he will comply with, whenever he shall be pleased to follow the Dictates of his own Judgment. But so long as there are so many Persons about him, who have publickly declared for the Duke's Interest, we have good reason to doubt, that we shall hardly obtain any thing for the Security of the Protestant Religion. We well know how many in the House of Lords came to their Honours, and by whose Interest; and it is not strange, that those that are as Servants should obey their Master; but it is strange, that those who have prevailed with the King to reject this Bill, if Protestants should be so unconcerned in the Welfare of the Protestant Religion, as not to offer what Expedients they have, to secure it any other way; especially seeing the last Parliament, as well as this, found it a Task too hard for them. But to reject the Bill which we propose, and to offer no other to serve instead thereof, though they have had two Years Time for Consideration, is to me plain Demonstration, that nothing must be had against Popery. That these Difficulties should be put upon us, and our Dangers thus prolonged in favour of the Duke, after such full Evidence that the Plot centers all in him, and that the Original of our Miseries is from him, when the immediate Safety of the King, and our Lives and Religion is concerned on the other hand, is a plain Discovery of the great Power of the Popish Interest, and of the low Ebb of the Protestants, and that it is impossible that any thing can be granted us in favour of the Protestant Religion, as long as those that are so much for the Duke's Interest, are about the King. And therefore seeing we are not like to do any thing by Bill, that those that sent us here may see we have done what we can, let us make such Votes as may be serviceable to our Country, viz. 1. That neither the King's Person nor Protestant Religion, can be secured any way without the Exclusion-Bill. 2. That we can give no Money, without endangering the King's Person and Protestant Religon, until we have that Bill. And, 3. That seeing Supplies for all public Money ought to come from this House, there being no other way to supply the King with the Love of his People, as well as with Money, let us pass a Vote to prevent Anticipations on the Revenue and other Supplies. And because I believe Things are come to a Point, and that there are those that have advised the Dissolution of this Parliament, and the Nation can never be happy as long as we have such Counsellors, let us, while we may, pass our Censures on such Persons; for only God knows when we shall be permitted to sit here again.'
'Mr. Speaker, Sir, the truth is, we committed a great Error in the Beginning of this Session; when we went about to look into the Popish Plot, we went into the Tower, whereas we should have gone to the Court; for it is plain, that the Duke's Friends which are there, do still carry on the Plot against the Protestant Religion, as much as ever the Lord Bellasis, Powis, or any of those Lords in the Tower did. And we may reasonably conclude by the little Success we have had against Popery this Session, that until we can remove that Interest from about the King, we take pains to no purpose.'
Sir H. Capel.
'Mr. Speaker, Sir, I am ready to agree in those Votes that were moved: For it appears plain to me, that we are not like to have any Laws against Popery: for the truth is, the Popish Interest is too strong for us. If there were any intent that we should have the Protestant Religion secured any other way, it is strange that those who advise the King to oppose our way, should not at the same time prevail with him to propose his. I am afraid that this Advice proceeds from those that think the King or Kingdom are not in danger of Popery, because they are of opinion, that Popery cannot hurt the King nor Kingdom; for otherwise they might plainly see it is like to have a Contest with us: And that it would be convenient it should be prevented, and be induced thereby to offer some Expedient, if there be any And as we may conclude ourselves an unhappy People upon these Accounts, so also in that the House of Lords, after they had spent so much time about Expedients, and found them insufficient, should afterwards reject this Bill, without any farther Care how to preserve the Protestant Religion; at least, not by sending any thing to this House, though we have heard from them of Mr. Seymour's Articles, and some trivial Matters. And also in that some worthy Members, who have the Honour to serve in great Places about his Majesty, and have opposed this Bill, seeing this House in this great Dilemma, should not offer to do the Nation and this House that Kindness as to propose them. If there be any such worthy Member that has any such Expedient, I hope he will stand up, and then I will presently sit down.'
After a little pause, and no body offering to stand up;
'The truth is, Sir, every Day doth more and more discover our Danger, and demonstrate, that this of Expedients is put upon us, in hopes that we should have offered at some Bill; of which Advantage might be taken, to represent us as Persons not well affected to the Government, that so, if possible, even the People, as well as the King, might be brought out of Love with Parliaments. I do remember, that after the great Endeavours which some Ministers of State had used to bribe the late long Parliament, and had come so near to Perfection, as that the Nation was in a manner saved but by two or three Votes, this Dissolution was much admired at; and it was most Men's Business to cast about to find out the reason of it: Amongst other things it was concluded, That if the Popish Interest had any hand in it (as believed) that it was out of hopes, that they should thereby have an opportunity to make the King out of love with all Parliaments, and so occasion some Difference between him and his People. The little Success which the last Parliament had, the Improbability of this, and the Stumbling-blocks that are laid for the next, make me afraid that the long Parliament was dissolved for this reason: I have heard that the Jesuits have at this time a great Stroke in the Management of all the Affairs of Europe, and that it is by their Advice and Assistance, that the King of France goeth on so triumphantly, because they design to make him Universal Monarch, and in order thereto are true to him, though false to all the World besides. How far we have contributed already to the King of France his Greatness, and how this breaking off Parliaments, and keeping this Nation in this unsettled Condition, may conduce to his taking of Flanders and Holland, and his other Designs, all here may judge: And how it agrees with the Report of the Jesuits having the Management of all the Affairs of Europe: And how this can be prevented, without the Exclusion-Bill, is a Paradox to me. For I do still conclude, that so long as there is a Popish Successor, there will be a Popish Interest; and that as long as there is a Popish Interest, and Fears of a Popish King, the Nation will be divided, and there will be constant Fears and Jealousies, not only here at home, but with our Allies abroad; which will frustrate all Endeavours to oppose the French Designs, because there can be no Confidence between the King and his People. And this makes me conclude, we are under great Difficulties; if we give Money, we have reason to fear it may be employed to our Destruction; if we do not, if Flanders or Holland should be lost, great Endeavours will be used to lay it at our Doors, though we have given such hearty Assurances to his Majesty, of our Readiness to supply him with Money for the Support of it. And how we shall extricate ourselves out of these Difficulties, I know not.
'Sir, I have troubled you the longer, and with the more Earnestness, because I am doubtful whether I may ever have another opportunity to speak in this Place. Things are so out of order, and such prevalent Endeavours are used to unsettle them the more, that I am afraid, not only of our Religion, but of the very Government and being of the English Nation: For if these things should occasion Blood, while the French King is so powerful, he may easily have the casting Voice; and without that, only God knows what may be the End of such Confusions as some Men endeavour to occasion. All Projects of settling the Affairs of this Nation without Parliaments, have hitherto proved unsuccessful, and been attended with ill Consequences. I have a great deal of reason to be sensible of the Miseries of 41, and therefore am sorry to see such Dissolutions of Parliaments without Success. I am afraid there are Projectors again a-foot, that are for altering the Government, as to the Use of Parliaments: I judge so by their Proceedings, because I am of opinion, that Popery must destroy the Use of Parliaments, before it can be settled in this Nation. Seeing we are not like to have any Act pass this Session that may do the Nation any good, I think you have been well moved to do what service you can by your Votes.'
'Mr. Speaker, Sir, it is not only very strange, but, if I be not mistaken, contrary to the custom of Parliaments, that after the Lords have passed a Negative upon a Bill, we should still press for it, and declare ourselves resolved not to be satisfied without it, though it be well known that the King doth also intend to pass his Negative upon it; and that it cannot be had this Session, unless his Majesty be pleased to prorogue the House, of purpose to give an opportunity to go on with it again, which is very unlikely, if the Contents of his Speeches and Messages be considered, seeing the Lords have confirmed him in his Opinion of it. And therefore I should think it were much better to follow his Majesty's Directions in his Message, and to try some other way, which would be a great Confirmation of our Readiness to obey his Majesty, in following his Advice, which, I believe, is the best way to prevent any farther Disagreement, that so this Parliament may have a happy Conclusion.'
'Mr. Speaker, Sir, I am fully persuaded, that we cannot be secure neither of our Religion nor Peace and Quietness, without this Bill; yet seeing we are not like to have it at this time, I am for going on with those other Bills that are afoot, that we may try if we can get them. Seeing we cannot do all the good we would, let us endeavour to do all the good we can. But I am ready to agree in the Vote that was proposed, That it is the opinion of this House, that neither the King's Person, nor Protestant Religion can be secured any other way, provided it be not intended to bind the House from trying what may be done by other Laws, lest Advantage should be taken thereof to break this Parliament, which I tremble to think of, because it will be attended with a great Ruin to our Affairs both abroad and at home.'
Sir R. Markham.
'Mr. Speaker, Sir, being the House is inclinable to hear of Expedients, I will crave leave to offer you one. In case the Duke should outlive the King, I think, if by an Act of Parliament, the Prince of Orange were appointed to administer the Government jointly with him, with such Powers and Limitations as might be thought convenient upon a serious Debate, it might give great Satisfaction, and probably secure the Protestant Religion.'
Sir William Jones.
'Mr. Speaker, Sir, you have had several Propositions made you, and the way to come to some speedy Resolution, is not to debate too many together, but to keep close to that to which most have spoken; which, if I be not mistaken, is that which relates to the Duke's Bill, which some have opposed, because of the Difficulties arising from the Bill, and would rather have you go into a Committee, and treat of Expedients. But I think it below the Gravity of the House to be put out of their Method, unless some Expedients were proposed. But notwithstanding all the Provocations that have been given, we cannot hear of any Expedients, only one, which hardly deserves any farther Consideration in a Committee; because crowned Heads or Lovers, do not willingly allow of Rivals, but will be uneasy till they be rid of them. And I am afraid all other Expedients will be liable to as strong Objections; and that therefore it is that they are not proposed, though they have been so often discoursed of. If any Person would offer any, that had any appearance of giving Satisfaction, I should be ready to give my Voice for going into a Committee to debate them. But I know not why the House should lose that time, without some Expedient be first offered; and if there could be any Expedients found out, which were likely, really and effectually to prejudice the Duke's Interest, why should not the same Argument arise against them, as against the Exclusion-Bill? Why would not any such Bill be also against natural Justice, the Oath of Allegiance, be a severe Condemnation, and not good in Law, but liable to occasion a Civil War? For I am not apt to think this great Contest is all about an empty Name; and if not, then the same Arguments will hold against any other Bill, that will be sufficient to keep him from the Government, if some such Bill or Bills could be contrived, as against the Bill of Exclusion: But the truth is, there can be no other Bill that can serve us in this case, because all other Bills will leave us in that miserable condition of opposing our lawful King, and all Opposition in such a case, would be liable to be construed a Rebellion. All other Bills in this case would be no more for the Security of our Religion, than a great many Leases, Releases, and other Writings, are in many Cases of Estates; without Fines and Recoveries. However, I am against the Vote that was proposed, That the Duke's being a Papist hath rendred him uncapable of the Crown: For that were to take on us a legislative Power; but let your Question be, That it is the opinion of this House, that the King's Person, and Protestant Religion, cannot be secure without that Bill: That so the Proceedings of the House may be justified, in demanding that Bill hereafter, though we should in the mean time go on with any other Bills.'
'Mr. Speaker, Sir, I shall not trouble you with any Argument, whether the Protestant Religion can be preserved under a Popish King; or whether an Act of Exclusion will be a good Act or no, or whether the Exclusion-Bill alone, if it should be granted, would be sufficient, or what others we should need; but the Question is at present, whether, seeing we cannot have this Bill, we shall not aim at something else, that so, if possible, we may prevent the Breaking up of this Parliament, without any effect, as to the great things they were fummoned for, on which I cannot reflect without being much concerned; and I am afraid that it will be the consequence of persisting for this Bill. I cannot be persuaded, notwithstanding all that hath been said, but that there are other Bills that may attain our End, or at least do us some good. And we have no certain demonstration that this Bill, if we should obtain it, will infallibly do what is desired. The Acts made in Queen Elizabeth's Days did not suppress that Party totally: Though the Queen of Scots was cut off, yet that Interest continued, and even to this Day remains, and so it may probably though we should get this Bill; and therefore why should we stand so much in our own Light, as not to take what we can get? The Bill of Banishment may be of great Use, and some Bills to limit the Power of such a Prince, by putting the Power in Parliaments and Privy Counsellors; why should we lose all by being so eager for that we are never like to get? And therefore, I humbly conceive, we may do better to go on with such other Bills as may be thought convenient, and not struggle nor persist for the obtaining of this.'
J. B. (perhaps Resset.)
'Mr. Speaker, Sir, I am not for adventuring my Life upon Rhetoric, which is all I can find there is in the Discourses that are made for Expedients. We all know that a little Thing altered the Government in France, and reduced the People of that Kingdom to Slavery: Pray let us have a care that, for want of a little short Act, we be not reduced to Slavery and Popery too. Will not all the Expedients that have been talked of, or can be imagined, leave us to contest with our lawful Prince, and that Assistance which he is well assured of, not only from the Papists here, but in Ireland, and from France and Scotland, I am afraid, enough to make it a measuring Cast? And is the Protestant Interest so low, that though our Dangers be so great, instead of a Sword to defend ourselves, we must be content with a Sheath? I am not for cheating those that sent me here: I think it much more for the Interest of the Nation, that we should have no Laws, than such as will out trepan us, by failing us like rotten Crutches when we have Occasion to depend on them; I had rather lose my Life and my Religion, because I were not able to defend them, than be fooled out of them by depending on such Laws. I take it for granted, that seeing the Exclusion-Bill is thought too much for us, and such great Endeavours are used to preserve the Strength and Interest of that Party, that we must either submit, or defend our Religion by a sharp Contest; and therefore I hope we shall not depend on Laws that will tend to weaken us. I am confident, that if some Ministers of State did not stand as Clouds between the King and us, we should have Redress. For how can it consist with his Goodness or CoronationOath, that for the Interest of one Man, the Bodies and Souls of the rest of his Subjects should be in such Danger of perishing, as they are in case of his Death, if a Popish King should succeed, and such Popish Counsellors, Judges, Justices, and Bishops too, as we had in Queen Mary's days? For it cannot be doubted, but that those that will be so loyal as to bring him in, will be so loyal, at it will be called, to obey him in all things which may be for his Interest. And the same Argument, which Queen Mary used, will supply the Defect of all Laws, that the Execution of all Ecclesiastical Laws may be suspended by force, but could never be repealed by the Power of Parliaments; and therefore commanded, that notwithstanding all Laws to the contrary, they should be executed as in the beginning of her Father's Reign. The great Endeavours that are used to ridicule the Plot, arraign Parliaments, and divide the Protestant Interest, is a full Confirmation to me, that the Plot goeth on as much as ever. And how can it be otherwise, unless we can get the King of our Side, that so he may be more for us than he is for the Duke, without which it is impossible that the Protestant Interest can stand long. In order to do something, I am ready to agree in the Votes that have been made.'
'Mr. Speaker, Sir, it is clear to me, that all Expedients without this Bill cannot signify any thing for our defence against Popery. All our Difficulty will be, to satisfy his Majesty, that nothing else can save his People from the Popish Bondage. And if we could do that, I do not doubt but he will rather pass the Bill, than let three Nations perish. The King doth now rely on the Judgment of the Lords in the Matter, yet haply will find upon an Information, that he hath no good Ground so to do. For, I believe, if he would ask the Lords why they were of that Opinion, many of them would tell him, because he was of that Opinion, and because they were awed by his Presence. And seeing the Lords are changed from the Time of the throwing out of that Bill, from 33 to 55; so they may probably change more against the Bill comes to them again. And I am confident will do so when they have consulted their Interest, and have found that all other Ways to secure the Protestant Religion are either impossible or impracticable. At least, I am confident they will not throw it out again, without a Conference. And it is my Opinion, there wants nothing but a Conference to have an Agreement with the Lords: in the mean time, that they may have Occasion to consider better of it, let us by a Vote declare our Resolution to stick to the Bill.'
Sir William Pulteney.
'Mr. Speaker, Sir, by the Debate which you have had about Expedients, it plainly appears, that the Popish Interest is so well fix'd, that we are not like to obtain any thing against it, that will do us any Good. And it is not strange, that we should meet with great Opposition. For we may reasonably conclude, that those, who had the Power to instil those Principles into the Royal Family, have not been negligent to improve their Interest, to secure those Advantages they have long hoped for, and expected, from such a Proselyte. And therefore those Arguments which some worthy Members have used, as to the Improbability that ever a Popish King should attempt to change our Religion, as not consisting with his Interest, are to me very preposterous, and a great Demonstration of the Influence of that Party, in being able to broach such Opinions, as are so useful to bring in that Religion. For my part, I am of a different Judgment, and do believe, that a Popish Head on a Protestant Body, would be such a Monster in Nature, as would neither be fit to preserve, or be preserved; and that therefore it would as naturally follow, as Night follows Day, that either the Head will change the Body, or the Body the Head. Have we not already had sufficient Experience, what a miserable thing it is for the King to be jealous of his People, or the People of their Prince? Can it be imagined that there can be a Popish King in this Nation, without occasioning a constant Noise of Plots and Popery, and that such Reports, grounded on the King's Inclinations, will not occasion such a Fermentation in the People, as will end in Misery? Or, if it should prove otherwise, that by such Arts as may probably then be set on foot, the People should be lulled into a Security? Can we think that the Papists, who have been so many Ages at work for the Opportunity, should not take Advantage of that Security, to fetter us with their Popish Bondage? We may as well think that they will all then turn Protestants, or be true to the Protestant Interest. No, Sir, their great Design of having a Popish Successor was in order to bring in Popery. And we may conclude, they will heartily and earnestly pursue it, whenever they shall have a Popish King. And therefore, I think, it will never become the Prudence of this House, to desist from endeavouring to get the Exclusion-Bill, which is the only Remedy that can be in this Case, that we may have a Right to defend ourselves and our Religion against a Popish Successor, without which, this Nation will be in Time ruined. And therefore I humbly move you, that we pass those Votes that have been proposed.'
Sir Francis Winnington.
'Mr. Speaker, Sir, I have considered this Message with that Duty and Respect I ought; it doth so agree with all others which his Majesty hath been pleased to send to this Parliament, that I do believe that all proceed from the same Council, and that our Endeavours to prevail with his Majesty, in that Particular of changing Councils, hath hitherto had no Effect. The King is pleased to say, that he is confirmed in his Opinion as to the Bill, by the House of Lords having rejected it; I admire how the King should know it in a Parliamentary way, so as to intimate so much to this House. Probably he might be present, as he hath generally been, ever since my Lord Clifford had so great a Share in the Management of the Affairs of this Kingdom. And how Things have gone there since, we all know. I do not doubt but his Majesty takes that unparallel'd Trouble of attending there daily, chiefly for the Good of the Protestant Religion; but I cannot but observe, that it hath had little Success. For Things, however, have gone with so much Difficulty against the Popish Party, that it may be a Question, whether his Royal Presence, or the Influence of a Popish Successor were strongest. The Bill for Papists taking the Test, tho' accompanied with a great Sum of Money, pass'd with much Difficulty, and so that for excluding the Lords, and not without an Exception as to his Royal Highness: And therefore we have no great Reason to admire, that this about the Succession should be thrown out: And how can we expect it should be otherwise, as long as so many who sit there are in the possession of great Places by the Duke's means; and so many others who would come into great Places, which cannot be had but by his means? And how all this together makes an Interest, may easily be imagined. Sir, I do not mention these Things without regret; for I know my Distance, and have a great Veneration for the Nobility of this Land; and I know the Lords have their Freedom of Voting, and that there are many sit in the Lords House, who have all the Qualifications necessary for that great Station. But to see a Bill of this Importance treated so contrary to the usual Course of Parliaments, it is necessary that we should a little consider what may be the Cause, in order to regulate our Proceedings for the future: For if nothing must go in that House against the Duke, I think the Protestant Religion is like to have little Security from Acts. If the Duke had ever consulted the Books writ by his Grandfather or Father, or their Declarations in Matters of Religion, he would never have brought these Difficulties upon his King and Country. It is strange he should aim to get Heaven, by Proceedings so contrary to what his Father attested with his Blood. But though he hath neglected to consult his Interest; I hope we shall not neglect to consult ours, in pursuing this Bill, seeing there is no other Remedy: Though I am afraid it is a great Work, and may break many Parliaments, because it is so like to destroy all the Papists Hopes of establishing their Religion. However, I will not fear but, God granting the King Life, it may be obtained at last; unless the Project now a-foot, of representing Parliaments as dangerous and useless, should prevent the meeting of any more: For even the old Band of Pensioners could slip their Collars, when Popery came bare-faced before them. It is not to be admired, that, seeing the Jesuits have been a hundred Years at work to rivet their Interest, by getting a Prince of their Religion, they should struggle hard to preserve it, that so they may have those blessed Effects they expect from it, which the Succession-Bill only can prevent. But it is strange, that, after such Discoveries of the Plot here and in Ireland and the Certainty of our irrecoverable Danger upon the King's Death, that so many Protestants should be deluded by that Party, and rather be led by artificial Falshoods, to their own Destruction, than by naked Truth, to join in that which only can save them. For Protestants to ridicule the Plot, and disparage the Witnesses, though their Evidence is so confirmed, that a Man may as well believe that Bread may be made Flesh by Transubstantiation, as that the Danger of our Religion is not true, is as strange as to believe, that let the Papists carry on what Plots they will for the future, there will be ever any more Discoveries made: But if there should, I am sure the Witnesses will deserve the Censure of being mad (as was pass'd on him that owned the burning of London) considering how those have been rewarded. It is plain to me, that, as the King was under great Difficulties, arising from the Solicitations and Advices of private Cabals, when he put out his Declaration in April 1679, so he is now, and that it will never be otherwise, until he take up the same Resolution again of following the Advice of his Privy Council, and great Council the Parliament: Till when, I expect no alteration in our Affairs. The King, being a Protestant, must be for the Protestant Interest; the Duke, being a Papist, as much for the Papist Interest How can it be imagined, that there can be any Union in out Councils, as long as the Interest of the Counsellors are so opposite; or that any thing should pass in favour of the Protestant Religion, as long as the major part are for the Duke's Interest. Such a Contradiction hath for many Years had strange Effects already, and must have worse, until all the King's Council be such as can be free to join, in settling the Affairs of the Nation upon the old Protestant Foundation; which will never be, until we have this Exclusion Bill. And therefore I think you are well moved, to signify so much by a Vote. And I am glad to see so many Lords Sons join therein: For I hope it may be a means to get a fair Understanding with the House of Lords, either now or hereafter.'
Sir L. Jenkins.
'Mr. Speaker, Sir, I have hearkened with great attention to the Debates you have had about this Matter; and it is plain to me, that there can be no such thing as Demonstration in this Case, because this Exclusion Act, if obtained, may be liable to many Objections, and probably not secure us Why then should we be so bent upon it, seeing the great Difficulties of obtaining it are so visible? For my part, I think if it should pass, it would be void of it self, and be of no Force at all: For which Reason, and because we are not like to get it, it is strange to me, that no Arguments will prevail to aim at some other thing, that so we may get something, which must be better than to have this Parliament be broken, for want of our taking what we may get. For supposing the worst, that we should not get any thing, that should be sufficient to prevent the Duke's coming to the Crown, yet we may get such Laws as may be sufficient to secure our Religion, though he should come to it. And would it not be much better, to spend our time in making Laws which may tend to that purpose, which we have Reason to believe will be granted, than to spend our Time in pursuing that we are not like to get? Some good Laws added to what we have, and the Number of People which we have in this Nation Protestants, would in my Opinion be an impregnable Fence against Popery. And it is no such strange Thing to have a Prince of one Religion, and People of another. The late Duke of Hanover was a Papist, yet lived in Peace with his People, though Lutherans. The King of France, notwithstanding his Greatness, permits a great Proportion of his People to be Huguenots, and lives in Peace with them. And seeing there is a great Probability that we may do so too, and that we may have what Laws we will, to secure our Religion to us in such a Case, why should we engage our selves farther for the getting of an Act, which the King and Lords have both declared against, and will never be consented to by the King, as we may reasonably believe, because he hath often declared, that he thinks it an unlawful Act, and that it is against his Conscience?'
'Mr. Speaker, Sir, The great Character this Honourable Member bears, the great Employments he hath been in under His Majesty abroad, as well as his Education in the Laws of this Nation, do justly challenge, that what he saith, should be well weighed and considered, before any Man should offer to contradict it. He is pleased to say, that this Act would be unlawful and invalid, if it should be obtained: And therefore, because we are not like to obtain it, and because the Duke of Hanover, though a Papist, lived in Peace with Lutherans, and the King of France with Huguenots, that we had better spend our Time in contriving Laws for the security of our Religion, if a Papist should come to the Crown, which we may get; and not in contriving Laws to keep him from the Crown, which we are not like to have If this be not in plain English, the Sense of his Discourse, I am willing to be corrected. But, Sir, if it be, I do admire upon what Foundation the first Argument is grounded; I mean, that relating to the unlawfulness and invalidity of the Exclusion Bill. Was there ever any Government in this World, that had not an unlimited Power lodged somewhere? Or can it be possible that any Government should stand, without such a Power? And why such a Power should not be allowed here, which is so essential for the Support of the Government, I think can only be in order (if I may say it without Reflection) to have this Government fall; and I am afraid even at this time, by this very Business we are now debating. For it must be the Consequence, of denying that the Legislative Power of the Nation, King, Lords and Commons, are not able to make Laws to prevent it. But as this Opinion is strange, so are the Politics drawn from the Duke of Hanover, and King of France, to induce us to be willing to have a Popish King come to reign over us; when neither of the said Examples come home to our Case: But if they should, why must we be so willing to have a Popish King to govern us, as that we should be rather led by Examples fetch'd so far from abroad, than by the miserable Examples we had here in Queen Mary's Days; and by the undeniable Arguments and Reasons that have been offered to make out, that a Popish King will endeavour to bring in a Popish Religion? And notwithstanding the Example brought from France, I am afraid the French King is bound to assist the Duke's Interest therein; or otherways may be said of us, what the Devil could not say of Job, that we have served him for nought, contrary to the true Interest of England, these many Years. But by these Arguments, and all the King's Speeches and Messages, I plainly see, that this Honourable Member is in the right in one Thing; that we struggle in vain to get any Act, that shall signify any thing to prevent the Duke's coming to the Crown: But that if you will aim at Laws to secure your Religion after his coming to the Crown, you may probably obtain them. If this be not plainly said, I think it is plainly inferred; for are not all his Majesty's Speeches and Messages with an absolute Prohibition as to any thing against the Succession? And I suppose will be as much understood against your Association Bill, or any other that tends to that purpose: And you may be sure, that when you come with any such, if so contrived as to signify any thing, that the same Opposition shall be made to them as to the Exclusion Bill. For it is plain to me, that the King's offering to concur in any Laws you shall propose for the securing of your Religion, compared with the other Limitations, can only be so understood; which is a fair denial of all Laws against Popery, at least those that advise it I believe do so intend it: For all Laws against Popery, if once you have a Popish King, will signify nothing; the strongest that can be made would easily be defeated, so as to be of no use to us. Suppose we should propose a Law to put a great Power in Parliaments, I mean in both Houses, that so we may have the Lords Spiritual. and jure divino of our side; yet it is to me very plain, that a Popish King would be able, either to prevent the Meeting of such Parliaments, or by awing or influencing of them when met, or by setting up a stronger Power than the Parliament, or a better jure divino, by means of the Popish Clergy, than ours, easily make all such Acts signify nothing. I have heard, that a wise King hath oftentimes made wise Counsellors, and that wise Counsellors sometimes make wise Kings, but it must be when their Interest may bind them to take their Advice; which in this Case would happen otherwise: For the Parliaments, in such a Case, must have some such Power reposed in them, as would render them suspected of being Competitors for the Sovereignty; and that would make the Prince justly jealous of them, and soon end in such a Breach as would endanger the Government. Or to prevent this, the Power must be settled so strong in the Parliament, as to over-balance the King's; which ought not to be, because it would endanger Monarchy. If a Man were desperately sick of some Disease only curable by one Remedy, and that should be denied him, what should he do, but send for his Confessor, and prepare for Death? And so I think must we. And yet I cannot admire at this Message of His Majesty, but rather, considering whose Advice he takes, should have admired if he had sent any other. I hope we shall be as wise as the Frogs, who when Jupiter gave them a Stork for their King, did not appear well pleased therewith: To accept of Expedients to secure the Protestant Religion, after such a King hath mounted the Throne, would be as strange as if there were a Lion in the Lobby, and we should vote, that we would rather secure ourselves by letting him in and chaining him, than by keeping him out. This Nation hath formerly had some Repute for Wisdom and Prudence, and done much, as well in making of good Laws, as in keeping 'em. Pray, Sir, let us not at one Blow, or by one Omission, destroy all those Laws, which our Forefathers obtained with so much Industry: I hope the King will in time see who are his best Counsellors, we that aim at the Preservation of the present Government in Church and State, or those private Cabals which aim at Alterations; and that he will hearken to us ere long: That so he may live with more Content and Glory, and his People, without such Fears and Jealousies as now disturb them. Which cannot be, without the Exclusion Bill; and therefore I agree in the Votes that have been moved.'
'Mr. Speaker, Sir, I cannot but observe, that most of the Arguments used against this Bill are the same which Coleman made the Grounds of his Declaration, that so, if possible, he might have pre-possess'd the People against the fear of Popery or a Popish Successor. First, He saith, that the Pretences which that Parliament made of the Protestant Religion being in Danger of Popery was without Cause, because there was no Disturbance given by any of that Community. Secondly, That the Parliament's bold Endeavours, to have restrained the Succession of the Crown to certain Qualifications, would have made the Crown elective. Thirdly, That therein they would have out done the Popish Doctrine, that Heresy incapacitates Kings to reign; which was a new Way of securing Religion by destroying it. Fourthly, That the good Church of England had taught their People to be obedient to their Prince, let his Religion or Deportment be what it will. Also I find, that the same Endeavours which are now used to foment Fears and Jealousies in the People, as to Forty-one, the Danger of the Church and Government, and of Parliaments, are but copied out of that Declaration. He there declares, that the Parliament was dissolved, because they had Designs to blemish the good Protestant Church, and to prevent the sowing mischievous Tares in the wholesome Field of the Church of England, and to preserve the unspotted Spouse of our Blessed Saviour, from the ill effect of some Designs that were like to be introduced by Parliament. I will not make any Annotations upon this which I have repeated, but by it I conclude, that the Papists are very willing we should imbibe these Opinions, and that therefore they may probably conduce to the carrying on of their Designs. I could wish His Majesty would order that Declaration to be read in Churches once a Year, that so all the People, but especially the Clergy, may know what excellent Pretences the Papists can make of taking care of the Protestant Church, and how vigilant they are for that end, especially to prevent that it may not be injured by the Parliament, nor by altering the Succession. That Declaration is to me a great Confirmation of what hath been said of the Influence of that Party in the Management of Affairs; for it is not likely that Coleman would have drawn it, but that he knew how to have juggled it into the Council, as if it had been drawn by some good Protestant, that so it might have been made public, if that Parliament had been then dissolved.
'But, Sir, though by God's Providence we had all these Discoveries, yet I see no Probability of obtaining any Security against this Party. I am of Opinion with that worthy Member that spoke last, that the King's Speeches and Messages are plain against making of any Laws to prevent the Duke's coming to the Crown, and can only be understood in favour of Laws that may tend to securing the Protestant Religion under a Popish King; which, I think, none can do, unless such Laws, as will endanger Monarchy itself; which will not be fit for this House to propose, or the King to grant. For without securing the Militia, and Commands of Fleets and Armies, the Nomination of Privy Counsellors, great Officers of State, Judges, Justices, Sheriffs, as well as the Nomination of Bishops, and Preferments of the Clergy, in the Power of some Society of Men, it will be impossible to secure our Religion against that Omnipotency which accompanies a Crown, if the Prince that wears it be resolved to assist this powerful Faction. Therefore, Sir, we must either give up our Religion as lost, or obtain this Bill in order to it. I am for the Vote that hath been proposed.'
Sir R. H.
'Mr. Speaker, Sir, it is impossible we should remove the imminent Dangers impendent on this Nation, unless we can prevail with the King to forbear taking Advice with private Cabals; and instead thereof, to be advised by his Privy Council, and Parliaments. This indeed is the great Dispute that is now afoot; and unless we can prevail herein, all that we are about signifies nothing. And therefore, I think, we may do well to be plain in this with the King; and as we must not be afraid of giving him such Advice as is for his Advantage, so neither of giving him Assurances of our readiness to supply him with Money, and what else he may need, that so he may know we are as willing to trust him, as we are desirous he should be to trust us. For unless there can be a mutual Confidence created between the King and his People, that so they may freely, heartily, and without any Suspicion trust one the other, it is impossible that this Nation can ever be happy, but must either languish, as if it were in a Consumption, or strike into a Fever. The King being a Protestant, and for the Protestant Religion, the Duke being a Papist, and for the Popish Religion, are Interests irreconcileable, and have already given a great deal of Care and Trouble to the King. And I am afraid, that those who promote the Duke's Interest, are more for the Advantage of a Popish Successor, than of the present Protestant King. Which Mischiefs can never be removed as long as there is such a Successor. And therefore I am for the Votes that have been proposed.'
Resolutions against the D. of York.
Resolved, That it is the Opinion of this House, that there is no security nor safety for the Protestant Religion, the King's Life, or Government of this Nation, without passing a Bill, for disabling James Duke of York to inherit the Imperial Crown of this Realm, and Dominions, and Territories thereunto belonging; and to rely upon any other Means and Remedies without such a Bill, is not only insufficient, but dangerous.
Resolved, That His Majesty, in his last Message, having assured this House of his readiness to concur in all other Means for the Preservation of the Protestant Religion, this House doth declare, that until a Bill be likewise passed for excluding the Duke of York, this House cannot give any Supply to His Majesty, without Danger to His Majesty's Person, extreme Hazard of the Protestant Religion, and Unfaithfulness to those by whom this House is entrusted.
Resolved, That all Persons who advis'd His Majesty, in his last Message to this House, to persist in his Opinion against the Bill for excluding the Duke of York, have given pernicious Counsels to His Majesty, and are Promoters of Popery, and Enemies to the King and Kingdom.
And several others.
After this, several Persons being named for giving ill Advice to His Majesty, and Motions seconded with Arguments, that Addresses might be made, grounded on common Fame, for their removal; the House entred into a long Debate, touching the meaning of common Fame, the Usage, Custom, and Consequences of such Addresses in reference to the Government; and it did appear, that it was an ancient Right, and constant Practice of the Commons assembled in Parliament; to make Addresses to the King, grounded on commonFame, or moral Certainty, for removal of such Counsellors or Officers, as they thought were pernicious to the Government. And that it was the only way to reach great Ministers of State that gave evil Counsel, and to secure the Government against the Dangers arising from such, who would otherways, by giving Advice to the King in private, be secure against all manner of Proceedings against them, and so the Government might be ruined without any Remedy; that there was now as great occasion as ever in former Times, of making use of this only Remedy, the Influence of Popish Counsels having reduced the Nation, not only to the Mercy of the Popish Party at home, but of a foreign Nation; the Dangers whereof could never be prevented, but by establishing such a mutual Confidence between the King and his People, as might give Encouragement for the raising of a considerable Sum of Money to be employed for that End; which was never like to be done, until there were about the King's Person, and in Place of Trust and Power, Persons more inclined to the Interest of the King and Protestant Religion, and less to that of the Duke and Popery. Because the same Jealousies which this Parliament had, (unless the Cause were removed) would probably be also an Impediment with the next; that there could be no Security, it would be employed for that End, as long as the Duke's Party were so powerful: And that the giving of Money, as long as Things stand thus, would be a great Encouragement to that Party to go on with their Plot against the King's Life. But this Debate being after Candle-light, could not be taken: The Result was, that several Addresses were voted against George Earl of Hallifax, Laurence Hyde Esq; Henry Marquiss of Worcester, Henry Earl of Clarendon, and Lewis Earl of Feversham.
After which, the House entered into a Debate of the great Charge the Kingdom was at, by Interest and advance Money paid to Goldsmiths and others. And after many Arguments, making out, that by Parliaments the King might be supplied, as well with the Love of his People, as with Money for the necessary Support of the Government, and other Occasions; and that this Parliament had by several Addresses declar'd themselves ready to do it, upon passing of such Bills as were precisely necessary for the Security of the Protestant Religion, and that all other ways of supplying the King's Occasions, but what were granted in Parliament, did not only tend to the keeping off Parliaments, and to the exhausting of the public Treasury, by contracting Debts, but were of dangerous Consequence to the King and Kingdom, because the Government might be undermined thereby.
Resolutions against such as shall lend Money to the Crown.
Resolved, That whoever shall hereafter lend or cause to be lent, by way of Advance, any Money upon the Branches of the King's Revenue arising by Custom, Excise, or HearthMoney, shall be judged a Hinderer of the sitting of Parliaments, and be responsible for the same in Parliament.
Resolved, That whosoever shall accept or buy any Tally, or Anticipation upon any part of the King's Revenue; or whoever shall pay such Tally hereafter to be struck, shall be adjudged to hinder the sitting of Parliaments, and be responsible therefore in Parliament.
Jan. 10. Resolved, That whoever advis'd His Majesty to prorogue this Parliament, to no other purpose than to prevent the passing a Bill for the Exclusion of James Duke of York, is a Betrayer of the King, the Protestant Religion, and of the Kingdom of England; a Promoter of the French Interest, and a Pensioner to France.
That the Thanks of this House be given to the City of London, for their manifest Loyalty to the King, their late Charge of Vigilancy for the Preservation of His Majesty's Person, and of the Protestant Religion.
That the Commissioners of the Customs and other Officers of the Custom-House, have wilfully broken the Law prohibiting the Importation of French Wines, and other Commodities: And that if they shall hereafter, wilfully or negligently break that Law, they shall be question'd therefore in Parliament.
That it is the Opinion of this House, that James Duke of Monmouth hath been removed from his Offices and Commands, by the Influence of the Duke of York.
That an humble Application be made to His Majesty by this House, by such Members thereof, as are of His Majesty's most Honourable Privy Council, to restore the said James Duke of Monmouth to his Offices and Commands.
That it is the opinion of this House, that the Presentation of the Protestant Dissenters upon the Penal Laws is at this time grievous to the Subject, and a weakening to the Protestant Interest, and an Encouragement to Popery, and dangerous to the Peace of this Kingdom.
The same day the King came to the House of Peers, and sign'd two Acts, for the burying in Woollen, and prohibiting the Importation of Irish Cattle, and prorogu'd the Parliament to the 20th of January; but dissolv'd it on the 18th, leaving 22 Bills depending, and 8 more that were ordered to be brought in, but never came to be debated.
London Petition. ; The Dissolution of the Fourth Parliament. ; New Writs.
The Prorogation of the last Parliament being attended with some very extraordinary Consequences, we cannot avoid laying some of the principal before our Readers, as the most proper Introduction to the Meeting of the next; viz. January the 13th, the Lord-Mayor of London Sir Patience Ward, with a Court of Common-Council, order'd a Petition to be drawn up, and presented to the King, setting forth, 'That whereas the Parliament had convicted one of the five Popish Lords in the Tower, and were about to convict the other four of High-Treason; that they had impeach'd the ChiefJustice Scroggs, and were about to impeach other Judges; and all this in order to the Preservation of his Majesty's Life, the Protestant Religion, and the Government of England: That they were extreamly surpriz'd to see the Parliament prorogu'd in the Height of their Business: That their only Hopes were, that this was done only in order to bring such Affairs about again as were necessary to the settling the Nation. They therefore pray'd, that his Majesty would be pleas'd to let the Parliament sit at the Day appointed, and so continue till they had effected all the great Affairs before them.' To this effect was the Petition, which was further order'd to be deliver'd that Night, or as soon as might be, by the Lord-Mayor, attended by the new Recorder George Treby, Esquire, and certain Members of the Court of Aldermen, and Common-Council. But this farther provok'd the King, and hastened his Resolution of finally parting with his Parliament. Accordingly, two Days before the Time of their Meeting, he by Proclamation dissolv'd the present Parliament: And in the same Proclamation, he declared his Intentions of calling another Parliament to meet on the 21st Day of March next. But being offended at the City of London, and hoping to meet with better Success by a Removal, he appointed Oxford to be the Place of their Meeting, where he had formerly, in the Year 1665, found the most imaginable Harmony in and between both Houses.
London Instructions to their Members.
When the Elections came on, the Temper of the Nation was soon discover'd by their Choice; both Parties were extremely busy; and the City of London set the first Example to the rest of the Kingdom by returning their old Members Clayton, Player, Pilkington and Love; to whom, as soon as the Election was over, an extraordinary Paper was presented in the Name of the Citizens of London then assembled in Common-Hall, containing, 'A Return of their most hearty Thanks for their faithful and unwearied Endeavours, in the two last Parliaments, to search into and discover the Depth of the Popish Plot, to preserve his Majesty's Royal Person, the Protestant Religion, and the well-establish'd Government of this Realm, to secure the Meeting and Sitting of frequent Parliaments, to assert our undoubted Rights of petitioning, and to punish such as have betray'd those Rights, to promote the long wish'd-for Union of his Majesty's Protestant Subjects, to repeal the thirty-fifth of Elizabeth, and the Corporation-Act; and more especially for their assiduous Endeavours in promoting the Bill of Exclusion of James Duke of York.' In fine, they concluded, 'That being confidently assur'd, that they, the said Members for the City, will never consent to the Granting any Money-Supply, till they have effectually secured them against Popery and Arbitrary Power, they resolv'd, by God's Assistance, to stand by their said Members, with their Lives and Fortunes.' In the like manner were the former Members of Parliament again chosen, in most Places in the Kingdom; and in many, such like Papers of Addresses presented were to them, in their respective Countries, as had been done to their Members by the Commonality of London. And the Zeal was slow so great, that, contrary to the Custom of the Members treating the Country, now the Country in most Places treated them, or at least every Man bore his own Charges.
The Earl of Essex's Speech to the King.
The greatest Uneasiness and Disappointment to the prevailing Party in the Elections, was the Place of their Meeting, Oxford, the Distance of which might naturally cause a Diminution of their Power and Influence. Therefore it was resolv'd by several of the Nobility to draw up a formal Petition against that Place; which was early deliver'd to the King by the Earl of Essex himself, who introduc'd it by this following Speech: 'May it please your Majesty, The Lords here present, together with divers other Peers of the Realm, taking notice that by your late Proclamation, your Majesty had declar'd an Intention of calling a Parliament at Oxford; and observing from History and Records, how unfortunate many Assemblies have been, when call'd at a Place remote from the Capital City; as particularly the Congress in Henry the Second's Time at Clarendon; Three several Parliaments at Oxford in Henry the Third's, and at Coventry in Henry the Sixth's Time; with divers others which have prov'd very fatal to those Kings, and have been follow'd with great Mischief on the whole Kingdom: And considering the present Posture of Affairs, the many Jealousies and Discontents which are amongst the People, we have great cause to apprehend, that the Consequences of a Parliament now at Oxford may be as fatal to your Majesty and the Nation, as those others mention'd have been to the then reigning Kings. And therefore we do conceive, that we cannot answer it to God, to your Majesty, or to the People, if we, being Peers of the Realm, should not on so important an occasion humbly offer our Advice to your Majesty; that, if possible, your Majesty may be prevail'd with to alter this (as we apprehend) unseasonable Resolution. The Grounds and Reasons of our Opinion are contain'd to this our Petition, which we humbly present to your Majesty.'
The Petition against sitting at Oxford.
The Petition itself consisted very much of a Recapitulation of the Misfortunes attending the untimely Prorogations, Dissolutions, and Discontinuations of Parliaments of late, at a time when his Majesty's Person, and the whole Nation was in imminent Danger from the Papists: 'And now at last his Majesty had been prevail'd to call another Parliament at Oxford, where neither Lords nor Commons could be in Safety, but would be daily expos'd to the Sword of the Papists, and their Adherenes, of whom too many had crept into his Majesty's Guards: The Liberty of speaking according to their Consciences would be thereby destroy'd, and the validity of their Acts and Proceedings left disputable. The Straitness of the Place no ways admitted of such a Concourse of Persons, as now follow'd every Parliament; and the Witnesses which were necessary to give Evidence upon the Commons Impeachment, were unable to bear the Charges of such a Journey, and unwilling to trust themselves under the Protection of a Parliament, that was itself evidently under the Power of Guards and Soldiers. In conclusion, they pray'd that the Parliament might, as usually, sit at Westminster, where they might consult and act with Safety and Freedom.' This Petition was subscrib'd by sixteen Lords, viz. Monmouth, Kent, Huntington, Bedford, Salisbury, Clare, Stamford, Essex, Shaftsbury, Mordant, Evers, Pager, Grey, Herbert, Howard and Delamer. The King gave no Answer that we find, but frown'd upon the Deliverers of this Petition, and persisted in his Resolution of holding the Parliament at Oxford: Whither the King repair'd with a great Train, March 14, as likewise the Members to attend him.
Those for the City of London came with a numerous Body of well arm'd Horse, having Ribbands in their Hats, with these Words woven in them, No Popery, No Slavery! And many others of the Members were attended in the like Manner, as apprehending some extraordinary Designs of the Papists against them; so that at length, the Manner of their Assembling (says Mr. Echard) look'd more like the Rendezvous of a Country-Militia, than the regular Meeting of a Parliament.