Grey's Debates of the House of Commons: Volume 1. Originally published by T. Becket and P. A. De Hondt, London, 1769.
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Wednesday, March 16.
[On the] Bill for the [repair of] Highways.
Sir Courtney Poole.] Near him, several towns have put this Act in execution for carriages; but then the Carrier informs against them for their highways, in the Exchequer, which terrifies them from doing it; and in the Exchequer, upon the certificate of two Justices of the Peace, process is taken of paying their fees; therefore it is but reasonable that the enquiry should be in the country, and there determined.
Colonel Birch.] Meddle not with the weight they are to carry, for it will be impracticable. It is two wheels that spoil the ways, more than four. Stint the number of horses, for they can but draw such a weight; the Carrier must be well befriended by the Constables, not to have his corn measured, and goods weighed.
Sir Courtney Poole.] Waggons are a great damage to our breed of horses; for by them fewer horses serve than when we had none. It discourages navigation; for before we had waggons, we sent most of our goods to London, and fairs, by sea.
Mr Garroway.] In Sussex it is impossible to go double with horses or beasts; the ruts are so deep, and the hills so steep, that they are constrained to go sometimes single in their coaches.
Mr Swynfin.] Waggons have been in use these thirty years. The stinting the carriage any way hinders trade much; for before, they could not bring it for a third cheaper than now, and the good of that doth abundantly recompence the hurt it does the highways. Weak teams cannot stride the rutts, and strong ones can. The poor people that carry Birmingham ware cheap, will be discouraged, and so trade fail; they carry now for threeshillings the hundred-weight in winter.
[Resolved, to allow five horses in length, 113 to 67.]
Thursday, March 17.
[On the Consideration of the public Accounts.
The Commissioners of Accounts were called in about the Prizes. Twenty-one ships not cleared in the port of Dover.]
Mr Henry Coventry.] The Commissioners of Accounts have not yet passed judgment; and suppose you find the Commissioners of the Prizes guilty of a crime, and the Commissioners of Accounts, after the recess, not guilty, will it either way be for the honour of this House?
Sir Richard Temple.] The Commissioners of Accounts, like Juries, find the special matter of the fact to be true, but return all the judgment to you to proceed upon.
Mr Henry Coventry explains himself.] Shall you, by a vote, say, "The Commissioners of the Prizes have not cleared the ships," and the Commissioners of Accounts, "They have?" Here will be judgment against judgment.
Col. Titus (fn. 1).] Could wish that the Commissioners came prepared in their charges; in the mean time the gentlemen concerned suffer in their reputation—Would have the matter of fact heard that is ready.
Sir Winston Churchill.] Conceives that we can do nothing in the business, the Commissioners bringing in an account without a charge. 'Till they give judgment in matter of accounts, we can give none in matter of crime. The King was tender in making himself more enemies than he had, which occasioned the discharge of many ships. These Commissioners were but substitutes, and if they have given the Lords Commissioners false accounts of their actions, they are to answer it to them. But if the Lords Commissioners of Prizes have approved of what they have done, the question is then, whether the Lords have done their duty, and are accountable to you?
Mr Edward Seymour.] Does not blame the Long Robe to be always for the use of Counsel. Truth lies in a narrow room, and is always naked. If the case be only, who, and what, you need no Counsel. The jurisdiction is a distinct one for account for the Exchequer; Crime and Misdemeanor is your judgment. If the Lords Commissioners must authorise their actions, and you to make no farther progress, you needed not have made this Act. Because you cannot charge all persons, will not you proceed upon a particular person? Because you cannot do all, will you do none? It is complete for you to judge, though not for the Commissioners to return judgment into the Exchequer. The Commissioners are ready so far, as to charge, and the Prize Commissioners, to answer; so the issue is joined. Possibly the Commissioners of the Prizes may have a long recess of Parliament in their prospect, and may hope to weather it out.
Sir Robert Howard.] The thing before you is not capable of return to the Exchequer; if you are not now ready to hear, it is not your reason hinders you, but your temper. The Act exempts condign punishment from the Exchequer of that.
Sir Job Charlton.] A post confirmation is as good as a præ order. Read all the papers, and then judge whether Counsel is fit to be heard upon the whole; and you may judge whether the proceedings are just and legal.
Mr Sollicitor Finch.] Though he respects the Commissioners of Accounts, yet would not have any man totally concluded by them; consider what steps are fit for you to take. He concerns himself as mankind, not as Long Robe-man. The Emperor that took away Sanctuary was lost, for want of the horns of the Altar to fly unto—Would not have these dangerous precedents upon ourselves. Twenty-five ships discharged without order, and seventeen with order precedent, but not without account, from time to time, of the product of them. If this in civil cases, much more in criminal, when the matter of fact is reported, why, and wherefore; if that shall not keep a man from being criminal, there is no rule of conversation in this world. No man can be twice indicted; he that has once given an account to the Law, and his Superior, cannot be called again to account; this is the Law of the whole world. Now, whether this discharge does not amount to a legal one, is the question —He would have Counsel allowed. (Which was agreed to.)
Mr Ayliffe, a Counsel for Sir Thomas Peyton, Sir Fra. Clarke, and Col. John Strode, Commissioners for the Prizes of Dover port,] Confesses that they have not punctually followed the instructions, but upon the circumstances much will depend. These twenty-five ships were dismissed when the Plague was as hot at Dover as at London, and the Lords Commissioners were remote, either at Oxford or Salisbury. The nature of the ships was, either ships formerly discharged in other ports, and did esteem it as a crime in them to have detained them till they could have power from the Lords Commissioners, all which they did immediately give notice of. But Quis constituit judicem? Ships brought in probationarily: they have no negative words that forbid them discharging such ships; but had they staid for particular directions, it may be the plague would have left them no men to man them. Though they may not in stricto jure be justified, yet the worst of the charge, he hopes, will be double diligence. By a letter from the Lords Commissioners, it appears, that the whole management was left to the Sub-Commissioners; and the same in all other cases. Appeals to the Commissioners of Accounts, whether the Lords Commissioners ever gave them any check in their proceedings. Not speaking derogatory to any, the Lords Commissioners were the sole judges of the matter, and thought the Sub-Commissioners care and integrity deserved an acknowlegement, in giving them 100 l. a-piece over and above all charges. This being so, hopes no farther animadversion, or observation, may be made upon them. Qui non vetat, jubet.
Lord Brereton.] Hopes that the House will not blame them; though they are unacceptable to others; and that though the Lords Commissioners have approved of the actions of the Sub-Commissioners, yet they are not to be blamed for not approving.
[The Matter was fully heard at the Bar.]
Friday, March 18.
The Bill against transporting English subjects [prisoners into parts beyond the seas, was read the second time, and a Proviso offered.]
Mr Sollicitor Finch.] If this be a good Bill (for ex malis moribus bonæ leges) it has the best luck that ever Bill had. Relegati ad insulas, and no foot of liberty left the subject. This Bill does not distinguish between imprisonment ad custodiam, and that that may be ad pænam. As you have declared the Law, he shall have an action at Law, for his being "detained for any contriving or acting." It is an unfathomable Clause, without depth; had you stopped at "damages from the party," &c. Every verdict from the party disables the defendant from bearing any office. This is a severity not meant by the Bill, and yet expressed. You have not left the King any power, and it is in the power of any man to fly in the King's face, and turn out any of his officers; and this is the goodmanners of this Bill.
Sir Thomas Lee.] He that is sent to Jersey or Guernsey, may be sent to Tangier, and so never know what his crimes are, and no Habeas Corpus can reach him. All conviction must be by a Plebeian Jury, which now they cannot have—Thinks no danger in it; it does not take away the King's power at all, but secures the subject.
Sir Robert Atkins.] It is said by the Sollicitor "that the King has the power already to send a man out of the kingdom convicted of felony." It is the first time he has heard it for Law. This Bill takes away the danger we were under in these times of transportation to Jamaica, &c.
Serjeant Maynard.] Law and Prerogative must stand together. Suppose a man be kept three years at Tangier, he cannot help himself, but could wish that the Clause of "aiding and assisting" was put out.
Sir Thomas Meres.] Prerogative is but a pretence the Lawyers differ about; it is but a poor request to have this granted, if it be a retrenching the Prerogative, after such great aids given by this House.
Sir Anthony Cope.] Would have no man out of the reach of Westminster-hall.
[The Bill passed, 100 to 99.]
Saturday, March 19.
Counsel upon the Petition of the Company of Wine Merchants, &c. [concerning Brandy] against the Farmers of Excise.] No company of men have abused the King more than this company of Excise-farmers. They pretend great service by bringing in the company of Brewers. The nature of the farm is like a covenant with a tenant; if it be an ill year, the landlord will abate rent; so that they are certain gainers. They have got a grant from three years to three years, and the Law is only determinately, three years. Thus they cheat the King.
The Law provided that no Farmer should be a Commissioner, nor contra. They get the King to covenant, that he shall commissionate such persons, some of their brothers, relations, or friends, and so elude the Law; and if these serve not, they covenant that, from time to time, the King shall nominate such as they shall agree to, and so elude the Law. The King may, by Law, bring his action in any of his Courts of Westminster, but for seizures, no where but in the Exchequer. They are Jury and Judges; and if you plead that the thing depends in the Exchequer, then they over-rule it, and judge it themselves. 5000 l. a year defaulted in their rent upon their several pretences. If Brandy is to be entered, you must do it as strong water, perfectly made; you shall not land it else, and a lighter was sunk, and lost upon it. They will have it their own way. Whilst Mr Papillon's Cause was depending in the Exchequer, yet nothing would serve them but to appear before their Commissioners, though judgment and verdict in the case. They give little or no warning for people to defend themselves.
Mr Offley.] Such as they nominate shall be Commissioners, and if they die, such as they shall appoint in their stead shall fill up the Commission; it may be persons not born, their heirs and executors.
Evidence for the Merchants.] The Farmer ordered him to receive four pence per gallon, and afterwards caused him to take eight pence per gallon; and not to pass entry, unless the Merchant entered, "Brandy, alias strong water."
Alderman Bucknall.] Would have the Merchants instance any thing that they have done unjustly, in their second Commission.
Evidence.] Mr Hall, Remembrancer in the Exchequer, had a counterpart of the Patent of the Farmers of the Excise brought to him to be inrolled; he finding it interlined, and razed in some places, and a seal defaced, and the label torn off, did not finish the inrollment, but left off at "In witness whereof," as appears by the roll, untill he had compared it with the Patent, which Bucknall pretended to be in an infectious house; so he never filed the roll to make it a record.
Mr Sollicitor's examination, returned to the Lords of the Council, of his servant Hannes, That he did interline "Brandy and Mum." It was pretended that the King and Council did give order for it, but he had no reward for it. Mr Bredon was present, and made no proffer of oath to the contrary. The Farmers, accusing Mr Sellwood for negligence in his place, Mr Sellwood affirmed, That the Clerks intended to make use of the interlineation. The party was sick, and had swellings, tho' not of the plague. Mr Sollicitor turned out Hannes with exemplary disgrace.
One St. John said,] That the interlineations were false orthography, and false English, and a seal broken, and another put to it.
Mr Ayliffe, a Counsel for the Farmers.] The King appointed the Commissioners of his own grace and favour, and they are Commissioners all England over. No case but Mr Papillon's, and the opinion of the Exchequer only delays, at Mr Papillon's request, to keep the argument alive for this time. They cannot say that any execution of this judgment by the Commissioners was taken in any case but Mr Papillon's. The allowance of 5000l. was by the Lords of the Treasury granted; former Farmers had 1000l. Suit is not causeless where there is probabilis causa litigandi. The Farmers were but five, and the actions were eighty. They thought it impossible to do any thing by a London jury, so they proposed six counties; they take three, and the same for the Commissioners. They might reasonably have confidence in a London Jury, to avoid the unindifferency of the place.
Sellwood corresponded with the persons against whom informations were, and took things from the file, being the Farmers Register; so no wonder the Farmers were attacked then; and if they could have got the Farmers out, Sellwood should have had 9000l. and besides, to go a considerable share with those that would be Farmers. The interlining, and all the practices, will appear to be from Sellwood, who was particeps criminis. Mr Sellwood had nothing to lose. Alderman Bredon, a man of an estate. Leaves the judgment of the probability of it, for he must lose his ears.
Alderman Bucknall.] The 21,000l. was abated, in consideration of their losses and attendance in the plague-time. Sellwood was the man that sowed difference between him and his partners. The counterpart was in Hannes's hand, but Sellwood and he were often drunk together; and in Hannes's hand the interlineations were made, and the seals broken. Several other particulars of Sellwood's practices against him.
Sellwood contrived the turning the Farmers out. This Sellwell, or Sellwood, that betrayed his former masters, would now betray his new ones.
Sellwell answers] He never had a farthing, or premium, if he did betray them; but being a sworn register, he thought it his duty to give out copies. The reflections upon him, so long concealed, why not produced all this while? Wishes Mr Bucknall might be criminally examined in this business.
Contra.] 'Twas said, by the Counsel, to be for Brandy, Coffee, Mum, &c. the very liquors they were allowed a defalcation for.
[To proceed on the 21st.]
Monday, March 21.
The Bill for prohibiting foreign Brandy, &c. [was read the second time.]
Colonel Birch.] This is a Bill rather to bring in Brandy by dispensation. The King of France has laid 80 per cent. upon our commodities, but has forbidden none of them; let us not provoke him then—He would have such a charge upon it, without prohibition, at seven or eight shillings per gallon, which no man can think will hinder ours, which may be sold for 2s 6d.
Sir Richard Temple.] This is a portable commodity, and the Custom easily stolen, by putting in Wine at each end of the cask. This is contrary to Birch's former arguments. Talk of what imposition you please, it will be stolen if you will make it prohibited—He would have it in the ordinary course of Law, and not to be decided, as in the Bill, by Justices of the Peace—Would also have prohibition of clover, and such foreign seed of grass, which will destroy all our home seed, and carry away much of our money.
Colonel John Stroude.] No man can be assured of the honesty of the Master of the ship; by forfeiting it, it forfeits another man's ship, for the fault of the master— Would have the penalty only upon the Master; the owner at London knows not what the Master will do in France. Let any penalty be upon the Master.
Mr Seymour.] He welcomes any thing that comes to improve your land; but cannot understand how, in the infancy of a manufacture, we can encourage it by an imposition, to make good that of the customs—Knows not how to reconcile Birch's arguments, only in point of interest.
Sir Thomas Lee.] Does not find any Acts of retaliation upon France, for the fame only of burning our commodities. If you lay any sum upon the commodity, by way of imposition, and forbid the commodity, you are uncertain of a recompence. The disputes upon the whole matter will be useless; if you prohibit it, who will adventure to undergo the penalty of the Act? And his gain will not be great, we affording it at ten groats, or 3s. per gallon—Likes not the conviction by Justices; we have too much of that already—Likes not the imposition, but would have a prohibition, and the Bill but temporary.
Sir William Thompson.] Every town that has Brewers in it, will have Stillers, and what a numerous company of officers will you employ, and so create a LandExcise. Most of the ships are not built for trade, but for hire. The seamen may bring, and unknown to the Merchant.
Sir Thomas Clifford.] You have left Brandy out of your Bill, and now would prohibit it quite. It is taken for granted at the Custom-house, that great imposition is next to prohibition; and amongst Ambassadors, prohibition of a commodity amounts to an embargo, and they afterwards make it the ground of a quarrel. Imposition amounting to a prohibition, what will that do but make the King's Impost as broad as long, if it comes in any way?
Sir William Coventry.] Here is a popular action in the case; no restraint to any officer. A troublesome fellow, the ship being just upon her voyage, may rummage the ship, and spoil her voyage, and find no Brandy. With imposition you have a prohibition; if he pays it, it is so dear, that your home manufacture outsells it. If he sells without entry, his goods are forfeited; if only by prohibition, you bring the foreign trade out of the Merchant's hand into the Distiller's. He will say, it is Brandy not made in France, but made of Wine in England; so no remedy by distinction—Would have it by imposition.
Sir George Downing.] Never knew a Bill brought in by a corporation, as this seems to be; never good for the nation. For the report only of a doctor or two, will you spoil your own Plantations? Make it as penal as you will, but do not prohibit it. This looks like an invention to send your seamen to the Dutch, who will be destroyed without foreign Brandy. The Custom of half the Brandy is the King's for life, and half for ever; for two or three years imposition on this, you will take the King's revenue away for ever.
Sir Robert Howard.] Has no other end in this Bill but to help our rents. If we drink no Brandy, we shall drink the more Beer and Ale, if we can wholly keep it out, though we cannot make it here. For the King's revenue, blanks are left in the Bill, which, with other things, at the Committee, may be supplied.
Mr Love.] Would have an imposition upon foreign Brandy, and none upon home; it may in some measure reach your end.
[The Bill was ordered to be committed.]
Tuesday, March 22.
[The House proceeded to reading of the rest of the Clauses and Provisos, reported, delivered, and tendered, to be added to the Bill for rebuilding the city of London.]
Debate about allowance of something out of the imposition on Coals for rebuilding St Paul's.
Sir John Birkenhead.] Has the particulars in his hand, and there was not above 8000l. in bank of the money belonging to St Paul's, whereof 7100l. is spent.
Sir Thomas Clarges.] Affirmed there was 100,000l.
Colonel Titus.] As villages were before cities, so were Parish-Churches before Cathedrals; therefore your care should be accordingly.
Lord Cornbury.] Affirms that there is not 700l. left; there was above 8000l. in bank.
[The Bill, with the several Provisos, &c. was ordered to be ingrossed.]
[March 23 and 24 omitted. March 25 the House did not sit.]
Saturday, March 26, 1670.
[Serjeant Charlton reports, from the Committee of Elections, the state of the case, touching the Election for the Borough of Tamworth, between Lord Clifford (fn. 2) and Mr Ferrers; and the evidence on both sides, and precedents as to former usage.
The question was, Whether the right of Election was in the Bailiffs, and four and twenty capital Burgesses; or in the Populacy and Burgesses at large.
The opinion of the Committee was, That the right of Election was in the Bailiffs, &c. and that Lord Clifford had the majority of voices.]
It was said,] In dark and doubtful things, usage is the best interpreter. When Mr Ferrers saw the Election lost by the capital Burgesses, he then, and not till then, admitted of the Popularity.
Sir Thomas Clifford.] All returns must be by charter, or prescription; there can be no prescription since Queen Elizabeth.
Mr Swynfin.] Prescription is only where grants are lost; a prescription is not from the beginning of the world, but presumes a grant, though lost.
Sir Thomas Clifford.] Argues against the inconvenience of popular Elections. He would ask any man what is more popular than the Election of the Knights of the Shire? If the Law was to be altered, much might be said both for and against it.
Mr Sollicitor Finch.] State what is clear first, and then the doubts may be considered the better. All do agree, that if a charter could be produced that mentions only the capital Burgesses; if such a charter be, it is void, because it cannot invade a right of prescription. Utile per inutile non vitiatur. As if "coram justitiarios Domini regis & alios præsentes," should entitle the people that stand by to levy fines. If they have right, by prescription, from the Conquest to the first of the Queen, you have no return; if any be, they must be on the record upon the file, and extant. He has seen returns in the Tower from Edward the first's time; and the returns of Tamworth must be, unless all the records are burnt. Every franchise is a ray from the fountain of all Privileges, the King; the merit of this cause lies wholly in prescription, and lies not in grant; it would else be extant.
Serjeant Maynard.] Is prescription good only from Queen Elizabeth? If a Quo Warranto was brought, they cannot plead by charter, for that mentions no Burgesses of Parliament. Common right of Election is not in the corporation, but in the commonalty. In Dims and Quinzes, viz. Tenths and Fifteenths, granted; Quinzes paid by the Freeholders, and Dims on the corporations, because they pay there for their wares. If ten men have power to send Burgesses to Parliament, shall all be at the charge? It is said that the charter is burnt. Can any man say, that the twenty-four Burgesses have sole power of Election by charter? What needs prescription? Would they have left out of their charter so considerable a thing as capital Burgesses, had they it of ancient right?
Mr Waller.] We are not, in this case, arguing the prudence, but the justice of the thing. If they sent before the charter, it is but conjectural at the best. The words of the charter, Aliis chartis progenitorum nostrum. The Bailiffs presume their right by other charters.
Sir Richard Temple.] If he could not reconcile his affections to his judgment, he would not trouble you in this business. You have many Burgesses sit here, who, 'till the Long Parliament, sat not till that time, from Edward I. Many sent up Petitions, by reason of their poverty, to be exempted, and were excused. This Borough was revived in a very regular time, in Queen Elizabeth's; any custom from Queen Elizabeth, or an hundred years ago, is good. He that will shake a common right by prescription, must show you a charter to the contrary. Of a thousand that chuse Knights of the Shire, it may be, not forty seal to the indenture. Since 9 Henry III. no record of any thing. The great men and the small men are the favourers of the Monarchy; the quatre trois men (fn. 3) not.
[The House, on a division, agreed with the Committee, and Lord Clifford was voted duly elected, 90 to 84.]
Monday, March 28.
[Consideration of the Lords Amendments, Provisos, and Clauses, to be added to the Bill for suppressing Conventicles.]
" Provided that no Peer of the realm shall have his house searched, but by immediate warrant from his Majesty, under his Sign Manual, or in the presence of the Lord Lieutenant of the county."
Sir John Birkenhead.] " Default in form, or other defect whatsoever." The Law against Recusants, 3 Jam. has these very words in it, they finding so many ways to elude the Law.
Sir Richard Temple.] No Law ever said " lack of form," but " default in form" often. The Justice of Peace else may convict Robert for Thomas.
Serjeant Maynard.] A man must lie under a conviction, and no appeal at all; most unreasonable!
Sir Walter Yonge.] That of the Papists was tryal by Juries, outlawries, &c. but to subject a man to the Judicature of a Justice is hard.
Mr Sollicitor Finch.] This offence is contra pacem; but by this Proviso he shall neither be attached nor convicted, and you exempt him wholly from the Law by this Proviso.
[This Proviso was rejected.]
"Provided always, and be it farther enacted, by the authority aforesaid, that neither this Act, nor anything therein contained, shall extend to invalidate or avoid his Majesty's Supremacy in ecclesiastical affairs, or to destroy any of his Majesty's Rights, Powers, or Prerogatives, belonging to the imperial Crown of this realm, or at any time exercised or enjoyed by himself, or any of his Majesty's royal predecessors, Kings or Queens of England; but that his Majesty, his heirs and successors, may, from time to time, and at all times hereafter, exercise and enjoy all such powers, and authorities aforesaid, as fully and as amply as himself, or any of his predecessors, have or might have done the same; any thing in this Act, or any other Law, Statute, or Usage to the contrary notwithstanding (fn. 4).
[The words printed in Italics, were rejected by the Commons, 122 to 68.]
Mr Sollicitor Finch.] This Proviso is not fit to pass, as it is tendered. It is a reassumption of all Laws since the Conquest; it revives the Court of Wards, and the Tenures, &c. Cannot think that when this Proviso was made, it was so intended. He is not against the King's Supremacy in ecclesiastical affairs, but would not have it part of this Bill—It needs it not; this being only to keep people quiet—Believes that the Lords, in a Conference, will be in pain to hear your reasons against it.
Serjeant Maynard.] That there is no occasion for this Proviso at all in this Bill, you will all think that made the Bill. Can any man tell what tryal any had before Magna Charta? The King could afforest any man's lands, &c. This, at one clap, takes away all the graces and favours we ever have had by Law.
Sir Richard Temple.] Here being no Proviso for the foreign Churches in this Bill, you send away all foreigners from us—Would have the King to have power there by a Proviso for his Royal Prerogative.
Sir Thomas Clifford.] Amendment of the Lords amendments of our Bill—Nothing so frequent.—He suspects his own understanding, when he is against a thing of this nature, and which comes from the Lords, the Judges present. This Proviso is a giving away all that has ever been given us; he stands astonished at it; knows not what to call it (it is Bell and the Dragon) nor what it is. He would have the Supremacy kept in, and us as far to recognize the Supremacy as any body; he that has taken the oath of Supremacy ought to be as forward as any. Say some, has the King this power? He has it, if not abridged by any Statute. Never heard any man say he was against religious meetings; the Bill is not at all ecclesiastical, it is purely a civil Bill to keep all in quiet.
Sir John Birkenhead.] The French and Dutch Churches are provided for in this Act; "no person of the age of sixteen, being no foreigner," so they are not included in this Bill.
Sir Robert Howard.] Craves leave to be against the learned men, though he much suspects his judgment in it. What do the French and Dutch Churches sit quiet by? It is a Dispensation, and no other way. Now he would ask any learned man, should the King's hands be tied in this case? Lord Coke calls Dispensation from the King, Propter impossibilitatem. Are we sure the thing will need no ease nor relaxation? The King lets the Acts be executed. Here are, it may be, forty or fifty considerable men, that may bring all the rest off. We must argue either as Gods or men. Et propter impossibilitatem videntem. There may be such a case, and so we may argue upon it. "Usage, or Law, to the contrary"—If any other Law has been to the contrary, it is fit he had the power again. The Jews allowed it; witness their Proselytes. Queen Elizabeth allowed Laymen to preach, (the Sheriff of Oxford's Sermon) propter impossibilitatem, &c. We restore the King to what he had before, and no more.
Mr Steward.] Why should not this ingredient be put into all Acts of Parliament? For the foreign Churches he would have a Proviso by itself, and that in foreign language alone.
Sir John Duncombe.] If the King has a power of Dispensation, he has it without this Proviso—He agrees to the first Clause of it, and as for the second, we may debate it.
Sir Winston Churchill.] Thinks it necessary to recognize the King's Supremacy now. It is not whether his ecclesiastical right be infringed, but whether the King thinks so or no. Any gentleman may prefer a Proviso in this House to any Bill for himself. The Lords, the two States, have thought this requisite; the Lords think the Supremacy in question, and they advise it. He cannot give his Negative 'till he hears the Lords reasons.
Sir William Coventry.] Readily assents to the first part of the Clause; but as for "have or might have exercised," if you pass this latter part, you repeal more acts than any man can repeal. It concerns the Church in all respects that you can imagine. Either there is no use of it, or it restrains those Laws you have in use. Erasmus said of England, in Hen. VIII's time, "That it was a strange country, where the Protestants were burnt, and the Papists were hanged." Should we come in succession to the government of a foreigner, out of our line of Kings, shall we put this power into his hands? Were the particulars set down in the Act, we knew what we had to do. Let the King's Supremacy be set down in the very words of the oath; let those words be set down and recognized in an Act, and not do things in the dark. The foreign Churches are provided for in the Act of Uniformity.
Mr Waller.] Thinks this a horrible Proviso; like a precipice, it makes his head run round. It is a strange way to make a new Law by a Proviso. The Lords usually, when they send us any extraordinary thing, do it at a Conference; and is sorry to see all this Session pass without one.
Mr Seymour.] Thinks that this Proviso has that in its consequence, that was not intended by the Lords— All Laws take either from the King, or the people— Thinks that nothing is more requisite, as the nation now stands, than the first and last part of this Proviso. If one man make Canons, and another Laws, it will destroy the Government.
Mr Secretary Trevor.] The King has power in greater matters than this, as in felony, &c.—Would not have you disarm him in this thing, less in the comparison, but very great in the consequence.
Sir Philip Warwick.] King James used to say, "That Moses and Aaron were brethren, and we were happy that the ecclesiastical Law and the temporal Law were both in a hand"—Would have the word "notwithstanding" left out.
Sir Thomas Lee.] By 24 Henry VIII. the King stands in the same Supremacy in both ecclesiastical and temporal affairs. What this Proviso may reach, he knows not. If you intend this Proviso for no longer than till the Statutes may be perused, which no man yet tells you what they are, it is an immense power you give, no man knows what. The King never knew the want of this before. Could he foresee the bottom of it, if it might be for a short time—But for perpetuity, the precedent is of such dangerous consequence, that you may shake Magna Charta in this Breath.
Sir Robert Howard.] As for letting it be for two or three years, it is putting the King upon his good behaviour for that time in his Regency.
Serjeant Maynard.] This Proviso coming in so heterogeneal and inconsistent to the Bill, it must be read three times before passed. We come here to act nothing new; we are all sworn; we are bound to the Laws as long as they are so, and when altered, released. 1 Eliz. puts fines upon ecclesiastical persons; for us to do this without a necessity, is the question. Restrain it to the first and last clause.
Sir Richard Temple.] Every one of us takes the oath of Allegiance and Supremacy, which implies that we must make no Laws to the contrary.
Sir Thomas Clifford.] Thinks we shall be puzzled when we come to the Lords at a Conference, if they should ask us why we will not recognize the King's Supremacy.
Sir William Coventry.] The Managers may readily say, that this Proviso is a new Law in effect, and no part of our Bill; but we retain the Supremacy as before in other Acts. It is said that the Bishops have not agreed; but should we take that for doctrine, that would in a few days be made use of in Lord Roos's business (fn. 5).
Mr Vaughan.] The Law that by this Proviso cannot be executed, is in effect repealed. The Kings had a Supremacy before Christianity was in England. Will you have the King to have power to put the Christian Religion out of England, and take away right of Patronage from his subjects?
Sir Thomas Osborne.] Should have been satisfied if any man could tell him, what Laws we repeal in any ecclesiastical affair—Would have the Debate postponed.
[It was referred to a Committee, to consider of the Amendments, &c. and to bring in such Amendments to be made thereto, as they should see necessary.]
[March 29, omitted.]
Wednesday, March 30.
[An ingrossed Bill sent from the Lords, entitled, "An Act for Lord Manners, called Lord Roos, to marry again," was read the second time (fn. 6).]
Lord Roos.] Desired the House to take his case into consideration, That he might, by this Bill, be enabled to marry, that his family might be kept up by his posterity, which otherwise would extinguish. And withdrew.
Mr Crouch.] This Bill is of the highest nature that any Law can be. How if it be against divine Law? It is disputable amongst Divines—Would have you send to the Convocation, to know their judgment.
Sir Richard Barham.] Seconded the motion, the Lords having the Bishops to consult with, and we have no Divines amongst us.
Sir Charles Harbord.] Never heard that any Members were to attend the Convocation, as was moved—Would have it committed, and then argued.
Dr Burwell.] It is expressly against the Law of God. In the spiritual Courts they judge according to the opinion of Divines. The Scripture says, that whosoever shall put away his wife, &c. Now this was in answer to the Jews. Man and wife shall be one flesh. Asserts that they cannot marry. Some are Eunuchs born, and some make themselves so—Moves to have the opinion of Divines.
Sir Courtney Poole.] At this day, it is no time to send to Divines. Are not you obliged, if they send you word they are not of this opinion? If we pass it they must be of our opinion, therefore would not have them sent unto.
The Canon was read at Sir Thomas Allen's Motion.
Sir Fretchville Holles.] You have bastardised all his children had by her, or [that he] may hereafter have by her. [In a former Bill.]
Sir John Earnly.] He that married the Queen of Scots (fn. 7) got himself convicted of Adultery, that he might marry her. This is a business of great weight, and would have it referred to the Convocation.
Sir Philip Warwick.] Moves to have the Bill committed to the whole House.
Sir Thomas Meres.] There is an upper and lower House of Convocation; the upper House is above us, and knows not the method of sending to them.
Sir Edward Thurland.] The whole Western Church is of the opinion of our Law, that causa adulterii does not dissolve vinculum matrimonii; though the Eastern differs. Knows that the Western and Eastern Church have had great controversy between themselves in it. Mr Selden has taken much pains in this. We that have made the four œcumenical or general Councils part of the Law of England, shall we suddenly leap into this business, which is of so great weight? You will do Lord Roos the greater right in deliberation. It is for your honour, and the good of his cause.
Sir Robert Howard.] Believes that much satisfaction, as is said, will not be found. Mr Selden says, "it is a Canon of the Council of Nice."
Sir William Coventry.] It may be, at a Committee, this may be proposed general for all persons.
Mr. Seymour.] The same reason for a Bill of general Naturalization, from one Bill for naturalizing one, or a few persons.
Sir Thomas Littleton.] Would not have it made a jocular dispute on any side.
Mr Henry Coventry.] Wishes it may be general, if for the ease of the people.
Sir William Coventry.] Believes it to be no jocular motion—Would be glad to be furnished with an argument, why it should not be in any man's case as well as Lord Roos's, and if it be not possible but that the same case will not vary, and subjects come to you, one by one, at great charges? Knows no reason but that a poor man may have a wife as well as a rich man; and therefore if the thing be made an Act, would have it general (fn. 8).
Sir Robert Howard.] Thinks that nothing can possibly be a public case like this. He has that charity for women, that he believes none so bad. To make this a public case, you must convict a woman of all these adulteries; Lady Roos stands convicted upon known and proved adulteries—Believes no such case; but he that may have it, let him have such a Bill.
Sir Charles Harbord.] The worst of whores is a wife-whore.
Sir Philip Warwick.] Finds it against the Law of God and man; but proceed which way you will, either in a grand Committee, or select.
Sir Richard Temple.] Every private Bill is from without, and public from within. This being private, every person may have liberty to come to you, which in a Committee of the whole House cannot be admitted of.
Mr Hampden.] You cannot suffer the Committee, either select or not, to debate the subject-matter, whether a Bill, or no Bill. That is only for the House.
[The Bill was committed to the whole House, 141 to 65.]
[In the Afternoon.]
Mr Sollicitor Finch's Reasons prepared for Conference, about the Bill of Conventicles (fn. 9).] Every man has more suo prosequendi. The vast change this Proviso makes, without any reasons by Conference to dispose us to it, with the nonecessity of it in the Bill; and so much as we agree to is only out of respect to his Majesty, without any conviction upon us, that it is any way relating to the Bill. In all Laws no mention of it, and why in this it should, is strange. Also to put the Lords in mind that the words are a reassumption of all Laws. This takes away de tallagio non concedendo, afforesting all lands. It exposes the Peers to relief of noblemen, to be finable at the King's pleasure. It sets up all tenures again. The King has, by Law, a Supremacy; that of 21 Henry VIII. was but a restoration of what the King had before. No ecclesiastical power to meet, or make Canons, or promulgate them, without the King's Leave. No Canons ever bound us from Rome in the blindest times, unless assented to by the King. We hope that no obscure thing may be revived by this Proviso; as the six Articles in Henry VIII. several Acts of burning, and forfeiture of estate, for offences ecclesiastical, as dissenting to Articles, &c. which by this Proviso we restore to the King, and revive.
[They were approved of by the House, and a Conference desired.]
[Debate on Lord Roos's Bill resumed.]
Sir William Coventry.] As Lord Roos has a great misfortune in the business, so have we in having the business before us. States the case thus: The best way is to compare inconveniencies, and to take the least. This Bill is to dissolve it a parte ante. As different from the printed case, as the King's pardoning murder when done, and of giving a licence to do it before. Henry VIII. was not very mealy mouthed in asking things of this nature. He dissolved his marriages in no such way. He that has read deepest is in doubt, therefore it is the wisest way to take the safest side, which is, the opinion of the Church. We urge against the Sectaries that say, "Your Surplice, "and other ceremonies of the Church are idolatrous," that the Church says no such thing—Thinks Lord Roos not within the Statute of King James of Polygamy. The inconvenience is civil effects. Henry VIII. had a surer way of divorce than by Parliament, which was by death.
Sir William Coventry again.] Would have it general, that persons may not be put upon new inconveniencies. "The continuance of the noble family, &c." The Bill that we shall pass, does not in any whit give more satisfaction in conscience—He wishes Lord Roos may have better fortune than those that have trod in these steps before him. Here is somewhat national in it; for it is a thing primæ impressionis, and would not have the honour of the House exposed in it. Proposes that the Committee may be thus instructed; to leave it to Lord Roos's conscience, and let the thing be put entirely into Lord Roos's hand, to convey his lands, honours, or any civil effects, to whom he pleases, before his death, at any time. That he may have children, or by adoption may have them, at any time before his death.
Mr Coleman.] In all Laws of Divorce, the woman is not deprived of her estate; you are now passing a Law ad omnem juris effectum; you take away the estate—Would not have the Bill pass upon the bare saying of some Lords, that Lady Roos shall have a maintenance.
Sir Thomas Clifford.] If your consciences were not weak in the former Bill of illegitimating the children, it is not reasonable they should be in this. The Gospel expressly says, except for Adultery. If it be doubtful, as Coventry alleges, it is not plain. The Canons of Edward VI. are positive in this case; we are backed by both. It is the practice of all the reformed Churches. The Roman Church would make it null for the consanguinity. That Act of the Marquiss of Northampton expressly says, "By "the Law of God he might marry," and so the thing is by Law declared already—To Coventry's expedient— Was ever any such thing offered, as to give leave to a man to make any one his heir against Law; or that any man should make an Earl but the King? To the avoiding of sin—We that are married men are more sensible and seeling in the case than those that are not. At first, he compared it to murder, &c. and next makes it indifferent, and would have him do that doubtful thing which you may determine.
Sir John Earnly.] Believes not that divine things can be enacted in this place—Moves to have the Canon read.
Sir William Coventry.] Does not wish, as he is accused of, that Lord Roos would take another woman; but had rather he took one than he gave him one.
This Debate was in order to instruct the Committee, [and is not mentioned in the Journal.]
Thursday, March 31.
[In a grand Committee on Lord Roos's Bill.]
Mr Swynfin.] The husband is the complainant and innocent, and shall he be sentenced? It is improper that he should be part of the sentence. The security of the bonds is not part of the punishment; for the wife, the offending party, gives none. It is an advice and monition, because the divorce of the ecclesiastical Court goes no farther than a mensa & toro. Their divorce being a limited one, they make a direction in it.
Sir Thomas Littleton.] Birkenhead has told you his knowledge of divorce, but it is singular.
Sir John Bramstone.] Committees examine the fact, and then postpone the preamble—Would have the divorce proved.
Sir Charles Harbord.] That is against all proceedings, for the divorce is supposed by a former Act.
Mr Steward.] Acknowleges it to be the usual method to postpone the preamble, but to do it here in this case, you make the inferences before you allow the Proposition.
Sir John Birkenhead.] No Court, except Parliament, can dissolve marriages, by the Statute Edward III. The ecclesiastical Court only judges the causes a parte ante, and to be judged in Court Christian, and no where else.
Mr Seymour.] A Member (Birkenhead) may speak twice at a Committee, but not one speech twice.
Sir Richard Temple.] The doubting the divorce in the former Act is more dilatory than reasonable.
Mr Secretary Trevor.] You have no power to throw out the Bill, as a Committee; you may mend it. The divorce is supposed, therefore postpone the preamble.
Sir Robert Howard.] Shall we, that have illegitimated the children, now enquire whether there was a sentence of divorce, or not? It is either to prove the divorce, which is already done, or to know whether we have more power than a spiritual Court—Would have it postponed.
Sir William Coventry.] The whole Bill is built upon the preamble. He has heard the sentence of divorce wished for in this House—Would have our own Act rather than the sentence. He would have an authentic copy from the record, for the Act passing after the divorce, the Act confirms it. In the sentence it is Injungentes & inhibentes. The spiritual Court says, "it is not lawful to marry," and you have confirmed that sentence by Act. So that this Bill must be a repealing that Act. This argument had most weight.
Sir Robert Atkins.] No man is bound to remember all the suggestions in a Bill—Would not have us marry Lord Roos in spite of his teeth—Would hear it from himself.
Sir Rob. Howard.] Sir Robert Atkins was not in the House, he supposes, when Ld. Roos twice declared his mind—Moves to adjourn, and to have the record brought after dinner.
[The House adjourned accordingly.]
In the Afternoon. [The same Debate resumed.]
Sir Richard Temple.] There was a mistake in the morning about the penalty, which he declares plainly to be sub pœnâ juris, and left to the Law.
Sir Winston Churchill.] The censure is according to the Canon; for, it may be, a reconciliation may follow; therefore it is a separation only a mensâ & toro.
Dr Burwell.] The bond is, that he shall not marry— 1 Cor. ii. Let her remain unmarried, or be reconciled again.
Sir Robert Howard:] The separation a mensa & toro was learned only from the Council of Trent.
Sir Charles Wheeler.] Burwell said, "There was a Canon that did expressly say, that the separation was not a vinculo;" but would have any Canon produced, that the bond of matrimony cannot be dissolved, before or since the Reformation. If so, he wonders why they proceeded no farther in the sentence.
Sir William Coventry.] Was answered, in the morning, by Clifford, "that it was strange any man should make "an Earl but the King." If this Act pass, it does make a new Earl of Rutland, as much as what he offered. He meant no incroaching upon the Royal Authority, and would be so understood. He does believe Authors that quote these Canons. Dr Hammond quotes the Canon of 1597—Would go the safest way, especially when the Church leads him. If you are going a dangerous way, and the Church would lead you a safer, sure that is to be followed—He thinks the House would consent to repeal the Act of Bastardy, as soon as pass this Bill. "It is enjoined and inhibited, deterimus & declaramus, that all those second marriages are nefandum matrimonium, and are expressly void."
Sir Thomas Clifford.] The King making an Earl, and the subject getting an Earl, are two things. The Dukes of Norfolk and Somerset were restored, but you would not give them power to make Dukes. He is much satisfied with Dr Hammond, who allowed the Canon, and yet was of another opinion, and therefore does not lay that weight and stress upon a Canon, the Doctor not doing it, but shall lay more upon an Act of Parliament.
Sir William Coventry.] The proposition that he formerly proposed was not extracted from him, but with thoughts that an expedient might be found out—Presumes Clifford as well versed in the matter, being a married man, as himself.—Would not be behind hand wich him in his civility.
Sir Thomas Littleton.] The divorce in the ecclesiastical Court was as far as they could go, and because they cannot, let us go farther.
Mr Coleman.] We must be satisfied somewhat farther in matter of fact—Sees no legal proof of the accusation —Knows not that Lady Roos was ever summoned, and if so, and in foreign parts, where she could not attend the sentence, it does not dissolve the marriage, nor [does] the Act of Bastardy [dissolve it.] He is informed she was not then heard—Would have her now summoned.
Sir Richard Temple.] It is now a strange thing to call for proof of an Act of Parliament. Had the gentleman attended, he would have known that she was heard by her Counsel and witnesses. He wonders to hear a Lawyer call for an averment against matter of record. All the Preamble is proved; but if you will do that over again, it was never done in Parliament. No man denies the premises, therefore it is fit to proceed upon the inferences.
Sir Robert Atkins.] If you find the suggestions in the Bill not true, you must inform the House. The Bill says only, "justly divorced for adultery;" it is reasonable to think, that the House did take it to be a vinculo matrimonii; it supposes that to be done, and so gives him liberty to marry. The question is not, what it ought to have been, but what it is. It is not intended that we should do any ecclesiastical Act by our legislative power. The House ought to be rightly informed, that as yet there is no other divorce than a mensâ, and then refer it to the ecclesiastical power to proceed farther, if they think fit.
Mr Swynfin.] What need we enquire what kind of divorce this was, whether the one or the other? The House saw that it was a divorce for Adultery.
Mr Coleman.] To answer Temple—Matter of record may be vacated by matter of record.
Sir Robert Howard.] Never heard an Act of Parliament so arraigned as in this Debate. The preamble speaks of an "Adultery," but "Dissolution" is the genuine matter of the Debate.
Mr Coleman.] If a record recites matter of fact, no traverse can be; but in many collateral matters it may, as in case of a Sheriff's making a false return.
[The Preamble was postponed.]
Mr Buller.] Would have the weighty considerations in the Bill enquired into, what they are. The Lords, it seems, know them; we do not.
Sir Robert Holt.] Would see the Earl of Rutland's Petition.
Sir Philip Warwick.] If the enacting Clause be no more than a civil sanction, and that Lord Roos had married, he should not be against it; but he has that reverence for the ecclesiastical Body, that in things dubious, as this is, he would not take a thorn out of Lord Roos's side, and put it into his own foot. Our Saviour's responses were not always full to the question. It is a charitable thing to save one person, but if the cock-boat he is in can hold no more, he must think of himself, and those with him. He thinks that many talk of antiquity that have read little in it—Robin Hood's Bow—When it is considered how many men and women may run into adultery to void their marriages, we had better have a mischief than an inconvenience. If it be a civil sanction, be is for it; if an ecclesiastical, against it.
Sir Charles Harbord.] It is not in our power to make it any thing but a civil sanction; the conscience part lies at Lord Roos's door. The Milesian Council, and St Augustine's Recantations for it.
Mr Secretary Trevor.] The sentence has made it adultery in him to come to his wife again. The practice of all the reformed Churches makes it lawful. The Roman Church, by dispensation, makes almost all things lawful. The Lords, by this Bill, make this only a civil sanction; but the Marquiss of Northampton's case says, "it is by the Law of God." But this Bill not; it makes it only a civil sanction.
Mr Steward.] Grotius, Erasmus, Hammond, and Reynolds, make it lawful; yet the Text of Scripture was a captious question: Except in case of Adultery. The answer is according to the question; but in Mark and Luke, it is positive that he may. We have all the Evangelists; but in the time they were written, (they were not all at a time) no supplement could be from one to another. An infallible interpreter makes Scripture a nose of wax, but an authentic interpreter must be, which is the Church. We have different opinions, Council against Council. The Council of Miliberis, and the Churches under the Turk, do admit of it. St Augustine and St Ambrose different. Where the thing is controvertible, it is the safest way not to do it. If you are mistaken in your judgments, you put him, and engage the nation, in an adultery. You have the least reason to do it in this of any case, because here can be no failure of justice in him, you having delivered him from a spurious issue. If the wife be barren, or diseased, you may call for such an Act, for want of posterity, by this precedent.
Sir Charles Wheeler.] The ill consequences are either subornation or collusion. If suborning, he may bring witnesses that she has smothered her child, and so may be rid of her. If by collusion, proving adultery—Scarce such a thing happens in an hundred years. It is a hard case to prove adultery. The Jews had tryal by water of innocence, and we formerly by fire. If this Act should not pass, how many troubles should we have for alimony! What made us abolish that of death, and introduce a more mild Law? Either our charity, not to take away a woman in sin, or out of hopes that she may mend; but not out of your charity to the woman to do the highest injustice to the man. He will yield the question, if any man can make out the doctrine of divorce [a mensâ & toro] introduced by unanimous consent [before the Council of Trent.] The Council of Trent did not anathematise (Temperamentum perquom subtile—Never heard it said) any thing but such as contradicted any doctrine dissonant from the Church of Rome (fn. 10). Hillaleus and Sammaeus (fn. 11), famous Jewish disputants in our Saviour's time. Any manner of uncleanness and adultery different in the old Law. There never was a divorce made for frigidity, either from the Law of God or man, but by civil sanction only.—Mr Selden. "What if Matthew had said nothing, where would the argument have been?" Answers, The same as if we dispute about light, if there was no light.
Mr Buller.] Understands that the word was new till the Council of Trent, and before that time nothing used but a vinculo; if that appears by books, he assents to the Bill.
Sir Richard Temple.] He believes, and therefore speaks. They tell you that Mark and Luke leave it out, but that St Matthew mentions it. There is no particular directions of any of the Evangelists to one part of the world more than another. They may as well say, that For thine is the kingdom, &c. is not part of the Scripture, because all the Evangelists mention not that conclusion. Swear not at all, &c. By this, taken only literally, we shall be all Quakers. Cannot find, that any Council did absolutely forbid second marriage. Some have encouraged it. The Fathers opinions various; because they would not allow it to Priests, they would allow it to none else. In our Church we find it a constant controversy, and we branding the Church of Rome for it. Dr Willet, Hammond, Hall, and Reynolds, all do write expressly against —Bellarmine for it. Only one of our Divines, Dr—, out of scholastical wit, against it in a disputation. Bellarmine brands our Church with it. He says, "that marriages are made by light of Nature, and so with a Heathen may be dissolved, but not with a Christian, because it is a Sacrament." In divorce, you are divorred from all conjugal duty; Can there be a relation without a duty? Dispensation for Lent allows us to eat what the Law forbids, which has respect to the brood of cattle. Cranmer and Ridley, who suffered, were for it, and so were all the reformed Clergy. Do not condemn our Church for being tender in this point; the Canons are allowed that are not directly against Law; the King allows them from the Convocation. There is only caution in the Canon, to make the people careful.
Sir John Bramstone.] After divorce, the husband makes title to the wife's land and goods; how could that be, if the marriage was void and null?
Sir Edward Thurland.] 28 Ed. I. Camois and Paganel's case (fn. 12).—The Orators of the Venetians sent to the Council of Trent, that they had some places of their territory that were of a contrary opinion. They were anathematised for contradicting the Council, and not assenting. Amongst the Jews, they needed no dissolving nor separation, as we do, for it was punished by death. The divorce a mensâ was asserted by several higher than the Council of Trent.
Sir John Birkenhead.] Who durst dispute Lord Parr's divorce by Bill, who had taken off the Duke of Somerset's head, was Captain of the Guard, and a great man? No man durst contradict him. How soon he turned Rebel afterwards, and set up the Lady Jane, you know. The Commons prepared a Bill then, that the thing should never be brought into example; but Lord Parr dissolved them before it could pass.
After a long dispute, Whether candles or none (for upon that the fate of the Bill would depend) it was carried for candles by a few voices; the rest of the Debate was soon over, and at ten of the clock at night the Bill passed [and was ordered back to the Lords.]
[April 2, omitted.]