Grey's Debates of the House of Commons: Volume 3. Originally published by T. Becket and P. A. De Hondt, London, 1769.
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Tuesday, April 20.
[A Bill for restraint of building, inmates, and inclosures, near to the cities of London and Westminster, was read the first time.]
Mr Waller.] The law favours buildings. If you build with another man's brick or timber, the law gives you damage for it, but not the brick and timber. Again tis said "that these buildings make poverty."—We are undone in the country, without building—And yet not build at all. The relief of the poor ruins the nation—By the late Act they are hunted like foxes out of parishes, and whither must they go but where there are houses? We shall shortly have no lands to live upon, to relieve them, the charge of many parishes in the country is so great.
Mr Sawyer.] The Act for settlement of the poor, does, indeed, thrust all people out of the country to London. This Bill remedies the matter—By this increase of building, in a while the people will come into such disorder as to destroy the buildings themselves.—Is for retaining any Bill of public semblance, but is against erecting of offices in the Bill. That statute against tippling (now the licencing is set up into a kind of office) without restraint, is of no use.
Mr Child (fn. 1) ] Sixty years experience has made it evident, in fact, that rents have increased the more for building houses. In his memory there are not half the houses in London that were before. London has more inhabitants than before the fire—The circumference must be subservient to the center.
Mr Jones.] If increase of buildings makes the houses in London of better value, 'tis a great paradox. Where's the demonstration? Is it because rents fall every day? But if this Bill be so much against law as to give right away, is against it.
Sir Nicholas Pedley.] 'Tis said that the buildings are not a nusance at common law. In Q. Elizabeth's time, they were judged a nusance, and in King James's time. Not by statute.—But when a thing grows too big and inconvenient, 'tis a nusance. The builders have been pardoned by Act, but for the future would prevent it.
[Resolved, That this Bill be withdrawn, and that a Committee be appointed to prepare and bring in a new Bill, upon the Debates of the House, to restrain the farther increase of building near the cities of London and Westminster, and to remedy the inconveniencies occasioned thereby: And that it be referred to the same Committee to inspect the Statutes relating to the relief of the poor; and of the Statute of the 5th of Eliz. and all other laws which relate thereto, and to bring in a Bill to redress such inconveniencies as they find in these matters.]
Sir John Prettyman's case, being a Member, and detained [prisoner in the King's Bench] upon execution [was reported by Sir Thomas Meres (fn. 2).]
Mr Sawyer.] Whether this case be of the nature of privilege, or upon being outlawed before his election, is the question. To the law of Parliament the case of privileging belongs. But as to reason, no prescriptions show that ever it was done. Prorogations are of the nature of several Parliaments, and privilege commences as if it were a new Parliament 13 Hen. VIII. And in Plowden's Commentaries 79, being of the same nature with those cases of judgment and execution in time of prorogation. No injury can, by privilege, be done to an innocent person; your subsequent privilege cannot do wrong to another, a third person. Should it do so, the inconveniencies were great. In effect, by allowing privilege in this case, you make "privilege of prorogation" equal to "privilege of adjournment." If you deliver a man in ex ecution, 'tis against what the law has vested the party in, and he loses also all the charges he has been at. There are judgments in the Case—31 Hen. VI.—The Speaker (fn. 3) was then taken in execution, in time of prorogation. 'Twas debated and referred to the judges, and reported by them to be according to law of Parliament, judged in the House of Lords. 'Twas then ruled that the Speaker should not be discharged; and the Commons thereupon chose a new Speaker. It may be objected, That this was a judgment given by the Lords.—But 'tis answered—The Lords were then the proper judges of it, but the judgment was confirmed by the Commons. Many cases that may be instanced, were in the time of privilege, when wrong was done by the aggressor.—To what purpose has the House, at any time, debated limitation of time of privilege, if out of the time you deliver the party? Martin's case 28 Eliz. There was then a case when a Member was taken within "14 days" on a prorogation, which was then the time of privilege. But about "20 days," upon report of Ferrer's case, it divided the House in opinion, whether a time should be asserted, or not, for privilege, or defined. The first question was, Whether the House would assert a time? 'Twas resolved "No,—but a convenient time." The next question was, Whether Martin was taken in that convenient time? "Yea". But whether the party should be punished, because the case was doubtful, was the great objection. There is the same reason for the one as the other, that the Member might attend the House without disturbance. Before any person fits, he has privilege. The true reason why the person in execution should not be delivered, as the case is stated, is that the party should not be left remedyless. 1 K. James—Sir Robert Shirley was in execution in the fleet four days. There was a Habeas Corpus granted to bring him to the bar. 'Twas then declared there should be a Bill, for the jailors and sheriff's indemnity. It provides that he may be taken again, after the session is over, "after "Parliament." No punishment for procuring such an arrest as that is.
Sir John Birkenhead.] Would know whether Prettyman is in execution for a debt owing to any of your members. That may alter something of his case.
Mr Sec. Coventry.] In case of a Peer's eldest son arrested in execution for debt, if his father should die, and he become a Peer, he shall not come out of prison. And will you set up your privileges higher than where privilege is born with a man, and yet he cannot be taken out of execution? Take heed what ye do.
Sir Richard Temple.] All the ancient precedents, before the Statute of 1 King James, will not be of any great use in this business. Formerly the House had power of punishing the prosecutor that put the party in prison, but had no power to release the party. Thorpe's case was a distinction between a debt to the King, and one to the subject, and yet has been over-ruled since. All precedents before 1 King James, are out of the case. The preamble of the Act is general and universal. Sawyer mistakes the case, for by this Statute "when privilege shall cease, the party shall be in execution again, all proceedings remaining as they were before," and so persons concerned not be put to any new trouble of process. Would have one instance, let a Member's taking be when it will, that ever he was detained, the Parliament sitting. 'Tis said, the party has an interest in the prisoner; so has the public likewise, and before the party had any, and you will not send a new writ, to chuse another in his stead. The case is of great weight, and he would not subject the keepers of prisons to any action of escape, but believes that persons taken in prorogation have been delivered out. The reason is the same whether the party is attached, the Parliament sitting, or not.
Col. Strangways.] We grant privilege in an adjournment. This case is privilege in prorogation. The privilege continues while he is a Parliament-man. Upon delivering him, the Parliament sitting, the Sheriff is cleared [by] the Statute of 1 King James. By suffering him to be detained, you deprive a county, or a borough, of a representative.
Sir Wm. Coventry.] 'Tis a tender argument to speak against the privilege of this House. Parliaments now are of longer continuance than formerly: and therefore 'tis an argument not to extend them more than formerly. The Member's (Prettyman) council quoted no precedents in the case to the committee. But something so applicable from the bar of the "case of a Peer's son" that he thinks we have no reason to extend our privileges more than they do. No man will doubt but that there is such a sleeping of privilege in prorogation, which, if awaked, must have power, not only to stop, but to reverse the course of law, or the next step to it, if it rises. If a Member be enlarged by privilege, it is restrained to those cases where, by that privilege, he might be before the Statute. You may say, that he may serve the execution again, when the Parliament is dismissed —But can the party catch him? He that took him before was innocent, and he must catch him. It may be he has nothing responsible for the debt, neither goods, nor lands, and nothing but his person to be had, and this privilege is during the whole Parliament. What may be the consequence of this? You would have often remedied buying of places in elections; this privilege will be a temptation to do it still, all debts being paid by privilege. This may tend to sending hither the most unfit men in England, and to put men upon breaking to be here. Let us not give occasion to people abroad to say we are rather extending than straitening our privileges, and never explaining them.—Considering especially, that men, by death of witnesses, (our privileges being longer now than formerly) may lose their lands, as well as their debts, and therefore would not agree with the Committee to send for Prettyman out of custody.
Mr Swynfin.] Agrees with the latter part of Coventry's speech, "That titles and estates may be lost by death of witnesses, when privilege continues long," and "that it it may be an invitation to bad men to come into Parliment." So that if any act of compassion to the subject could be made, to suspend privilege in some cases, would be glad of it.—But in this case of Prettyman's, believes it a right, and that when a Member is chosen, the town and the house have a right to that privilege. 'Tis granted that any Member, during sitting, has privilege; but here is the question, Whether a Member taken in execution out of privilege has the same right of being released out of prison, as in privilege? If it be allowed, how will it be answered upon an original writ out of time? If you make precedents in one case, you must do it in another. The objection of "a Peer's son," spoken of, is not this case; his father living when he was in execution, he had no title to the Peerage, but this man has. The Lords cannot make him a new title. The reason of privilege is the public service of the house and place he serves for.—But one objection.—"Privilege is just such a thing as is found by precedent, and we have but one precedent that gives light, and that is Thorpe's case, the Speaker." If this precedent had been since that Statute of 1 King James, no answer could be given to it; but it was before. But how appears it that there were no more precedents in the case? The reports are short; it appears not plainly that such as have been imprisoned were in time of privilege, but clear that they were delivered, the Parliament sitting, which then sat not long, and this case before us could not then arise. For as to the proviso in that Act to save the officers harmless, it may be out of privilege as well as in.
Mr Sacheverell.] Thinks not this case so different from Thorpe's case as is imagined, nor that of a Peer's son so different.—A Peer serves for himself.—If this releasing the person to attend here were to debar a man of his debt, would be against it. If his estate be not capable to make restitution, and he have neither land nor goods, it seems an Act of malice to keep him from hence.
Sir Thomas Meres.] If a man must be detained upon execution, tho' not mere process, 10, 20, 30 useful members may be taken out, to the destruction of Parliaments.
Sir Robert Howard.] Finds that we have nothing to resort unto in this business as a clear precedent.
Mr Serjeant Crook.] Did he think that this was lex et consuetudo Parliamenti, would not speak against it. He thought this case of Thorpe a settled and quiet case long. He was Speaker, and taken in execution, and a new one was chosen, before the Statute of 1 K. James. If once a Member taken in execution, were let out, or escaped, he was never to be taken again upon the same execution. It is urged that the kingdom loses a Member; you will allow breach of the peace above any privilege of Parliament.—The keeping the peace, the very being of the kingdom; there is no supersed as against execution, the very life of the law. Not morando, eundo, redeundo, lex Parliamenti, being the usage of Parliament. In so great a case as this, he doubts himself, in what he delivers, this place being the best school, and must learn here. Before 1 James, the person in execution being delivered, the sheriff brought his action against the jailor, and it was a crime and incapacity to take him again. Would not agree with the committee.
Col. Titus.] 'Tis no argument that you should take away this privilege, because it is inconvenient. Are there not greater conveniencies that balance the inconveniencies? You may be deprived of many Members of Parliament. Men may be clapped up that are against a Bill to be presented here. Better far a mischief on particulars, than an inconvenience in general.
The Committee was agreed with for the discharge of Sir John Prettyman. [On a division 143 to 67]
Wednesday, April 21.
In a Grand Committeen on the Bill of Popery. The clause for their discovery. Debate upon registering them at the Sessions.
Sir William Coventry.] The fear of driving Papists out of England is none at all. In Queen Elizabeth's time there was as zealous prosecution against them as now, and yet they were not driven out. As to the matter of easing them, what you have put upon them, or can, will not rid the nation of them. And now is an unseasonable time for registering them at sessions, if you think their numbers may encourage them. You openly and barefacedly besides encourage them to persist in their religion avowedly; and 'tis as much encouragement as is given to the Protestants. It lies in the power of our own clergy to detect any Papist whatsoever. In London, indeed, they remove often, and 'tis not so easy to do it; but out of it, in country parishes, not a minister in a parish, but knows who is suspected for a Papist, or Fanatic. If my Lords the Bishops will give it in charge to their Clergy, and the encouragement of better livings for the minister's being active in it, or encouragement from preferments in the King's gift, this will operate not only for suppressing Papists but Fanatics.—Though this discourse be fitter for the convocation, yet, having no call thither, he says this here. If the Church of England will promote discipline according to law, they may exceed even the Fanatics themselves against Popery.—Does not reflect in this, as if the Church was not zealous.—He has never been at mass nor conventicle, and so may speak his mind with the more candour.—He believes that our Church has preserved more decency of ceremonies, than any Church whatsoever, and are so much the nearer the Church of Rome, they carrying some resemblance of theirs; therefore 'tis absolutely more necessary for our clergy to carry the stronger opposition to Popery.—He has been formerly for the bill to ease dissenters, the more to strengthen our Church.—He speaks not this out of ill will to the Papists, but for the preservation of our Church.—He thinks this register may have more honourable ways, and be less subject to scandal, looking like toleration.—The composition (fn. 4) formerly made with Papists "to exempt them from farther prosecution," the next Parliament said, looked like toleration.—It may make them bold-faced.—In Queen Elizabeth's time, many came to church and occasioned compliance, and has reason to believe that a Church Papist may at last be a Church Protestant. If it be not their interest it may be ours that they should come amongst us.
Mr Garroway.] Unless you distinguish what you have now of Papists, and what may be for the future perverted, the bill will be of little effect, and no way to do it but by a register. If you make the default of registering their names, at the quarter-sessions, a forfeiture of their whole estates, you may save the Clergy the labour of presenting them. We have fears of Popery, and fears of France, for they draw on one another and are alike to him. Would have this registering singly applied to the Romish religion, and no other dissenters—But of that hereafter. This registering cannot countenance Papists, for he would have it "that whoever shall be hereafter perverted, his "estate shall go to the next a-kin, that is a Protestant;" which will be penalty sufficient for not registering their names, and for not being sheriffs and other offices, would have them pay a fine—And sees no danger in the register.
Sir William Coventry.] Temple desired "to know the "Papists, to suppress them"—but we know them already, and all this while suppress them not. He thinks the matter of ease to them, by registering, is not at this time seasonable, but what they shall pay for offices is not yet revealed to us, nor many other things.
Mr Garroway.] All those of the Romish party that have made estates over in trust, will be upon register, and they, and their estates, the more easily found.
Mr Sec. Coventry.] You find great jealousies of them, and therefore "nothing to be done to them" looks like an encouragement. He would not have laws made, never to be executed. He would go between the two opinions of severity and remissness in dealing with them. Though he may have the luck of them that do so. Their attempts of abolishing the government were the cause of their severity against them in Queen Elizabeth's time. Would distinguish between Papists of this world, and those of the other world. Some are in potentiâ proximâ, and would distinguish such as will not have any dependence on the Church of Rome as to the government they live under, and such as will. These sort of men are in a sad condition; you ease them not here, and they shall be burnt there—Would have some mark upon them, but not registering in general.
Sir William Coventry.] Shall always be as ready to make his apology to any Gentleman, to convince him if he can. What is the ease spoken of is not yet discovered, and can say nothing to it—But generally would ease their persons, and suppress their religion as much as he can.
Sir Edward Dering.] Though he speaks with great deference and respect to the movers of the register, yet he thinks you not ready for the question to be part of the bill. For in registering a man's name, as proposed, he exposes himself to all the laws in being. So the first step to this register must be to revoke those laws. Some alleviation of those laws most incline unto, but would have the thing clearly opened, and not pull down one house before we have another.
Colonel Titus.] What expect you by registering? That men should tell you we are liable to all the penal laws in being, against Popery. 'Tis, confess, and be hanged. Untill you tell them what ease they shall have for doing so, 'tis too soon for the question.
Sir Thomas Meres.] Moved that the Attorney General might not enter a Nolle Prosequi.
Which was, together with the Debate, referred to a Committee to draw up a Bill accordingly.
Mr Powle.] Reports Dr Burnet's (fn. 5) examination at the Committee appointed for the address about the Duke of Lauderdale's removal.
On the 27th (fn. 5) last, Dr Burnet was, by Mr Secretary Coventry, ordered, in the King's name, to go 12 miles out of town. The occasion was from some words Burnet should say to a Peer, which were by him denied; whereupon Burnet petitioned the King, but was, by the Secretary, ordered 12 miles (fn. 6) out of town; speaking with the Secretary again, he told him "that the King's pleasure "was changed from the 12 miles, to forbid him the Court" Since, the Duke of Lauderdale, in company of the Arch-Bishop of St. Andrews, and the Bishop of Salisbury, said "he would push the "punishment farther."—That, in 1672, he attended the Duke of Lauderdale, at Holy-rood House, to intercede for some conventiclers, his kindred, and told him "he feared if the security was great against them now in the Dutch war, there might be rebellion." The Duke of Lauderdale replied "he could wish that those rogues would rebell, that he might send for some Irish Papists to suppress them."—As to the matter of the Scotch army, he is free to speak of what others were present at, as well as himself; but what passed between the Duke of Lauderdale and himself, desired to be excused till the utmost extremity.
Mr Secretary Coventry.] Told Burnet "That the King had received some ill impressions of him for medling with affairs which concerned him not, and 'twas convenient for him to go out of town."—Thereupon Burnet desired to speak to the King, but the Secretary answered "he was not his accuser nor condemner, and could not dispose of the King's audience, but he would present an address from him to the King." Burnet sent his petition, and Coventry delivered it. Burnet soon after desired the matter in writing, which Coventry delivered him from the King (fn. 7) —Coventry told him "he would not put the King's words in writing he had not from his mouth" and denies any order he had "to forbid him the Court." That belongs to the Lord Chamberlain, or Vice Chamberlain. He only advised him to absent himself.
[The Debate was adjourned to Friday.]
Thursday, April 22.
There having been a motion made at the beginning of the session that certain records relating to the King's passing such petitions (so styled anciently, (now "acts") as should be presented him, should be searched, and reported, [the translations of several Rolls brought in from the Tower, were read and delivered in this day,] which were the following.
>Rotul. Parl. 2 Ric. II. Num. 28.
"Also the Commons supplicate, because petitions and bills put in (or into) Parliament by divers persons of the Commons cannot of the same, before this time, any answer have;"
"That of the petitions and bills put in this present Parliament, and of all other petitions and bills that shall be put into (or in) Parliaments in time to come, that good and gracious answers and remedy to (or of) them be ordained before the departure of every Parliament, and on, or of this, due estatute be made in this present parliament, and entailed to remain for all time to come, if you please."
"It pleaseth the King that all such petitions delivered in Parliament, of things which elsewhere cannot be determined, good and reasonable answer be made and given before departure of Parliament."
Parl. 36 Edw. III. No. 9.
First, "That the great charter, and charter of the forest, and the other statutes made in this time, and in the time of his progenitors, for the profit of him and his commonalty, be well and firmly kept, and put in due execution, without putting disturbance of making arrest contrary to them, by special command, or in any other manner."
"Our Lord, the King, by the assent of the Prelates, Earls, Dukes, and Barons, and the Commonalty, hath ordained and established that the said Charters and Statutes be held and put in execution, according to the said petition."
Rotul. Parl. 4 Hen. IV.
To the thrice excellent, thrice renowned, and thrice gracious Sovereign our Lord the King. Your poor Commons pray that the Statute made in the first year of the reign of the Noble K. Edw. your Grandfather, containing, "That none shall be distrained to go out of their counties, but only for the cause of necessity, of sudden coming of strange enemies into the realm;" and the Statute made in the 18th year of the reign of your said Grandfather, "That men of arms, hoblers, and archers, chosen to go in the King's service out of England, shall be at the King's wages from the days they do depart out of the counties where they were chosen;" and also that the Statute made in the 25th year of the reign of your said Grandfather, "That none be compelled to find men of arms, hoblers, nor archers, others than those which hold by such services, unless it be by common assent, and grant made in Parliament," shall be firmly holden and kept in all points safe, without being broken in any manner."
"And that none of your said Commons be distrained to go into Wales, or elsewhere out of the realm, contrary to the form of the Statutes aforesaid, and that all the convictions and writs made contrary to the said Statutes, and all the indictments and accusations, obligations, and tyes made by colour of the said Commons, and writs, with all their dependencies and circumstances thereof, may be revoked, cancelled, quashed, and annulled for ever, as things made against the law; and that they may not be drawn into example in time to come. And if any of your liege people be imprisoned, by force of your said indictments, or accusations, that they be presently delivered, and the said indictments held void."
"The King consenteth to this law, with this, That always, by force or colour of the said supplication, or of any Statute thereupon to be made, the Lords or others, that have lands or possessions in the country of Wales, or in the marches thereof, shall in no wise be excused of their services and devoirs due of their said lands and possessions; nor of any other devoirs or things to which they, or any of them, be especially bound to our said Lord the King; though that the said Lords and others have other lands and possessions within the realm of England. Nor that the Lords and others, of what estate and condition soever they be, that hold by escuage, or other services due the King, any lands or possessions within the said realm, be in no wise excused to do their services and devoirs due of the said lands or possessions. Nor that the Lords, Knights, Esquires, nor any other persons, nor any of them, of what estate or condition that they be, which hold, or have of the grant, or confirmation of our said Lord the King, lands, possessions, sees, annuities, pensions, or other yearly profits, be not excused to do their services to our said Lord the King, in such manner as they are bound, because of the lands, possessions, fees, annuities, pensions, or profits aforesaid."
These records were first moved to be inspected by Mr Sacheverell, and also that they might be printed, but that, by some, was not approved of.
Mr Sacheverell.] If it give offence I will not press the printing them. But thinks the gentlemen near the King concerned in the advising the last prorogation, and therefore moved that of 2 Richard II. to be printed. Some of the other records are printed, and some not. In Rushworth's Collection, the arguments 5 Caroli one of them made use of in print. The King's Counsel, in the conference, then made exceptions, but admitted them to be law. In the construction they differed, but agreed them to be as they stand.
Mr Serjeant Maynard.] Is certain that some of these are printed, and some left out. The printed: "No man shall be compelled to bear arms; the commissions for so doing void (not printed) when enacted that none shall go out of his country but on the Kings wages." If this passed as it is printed, what should become of all the tenures? The omission of the printing these is of more advantage to the subject than the King.
Colonel Titus.] Thinks the record of no moment, and no reason to spend time on it, now so many things of consequence are upon your hands. There is something of more consideration than either grievances, religion, or property; your safety, to be considered before all things— He takes the Kingdom to be in a dangerous condition, both as to friends, enemies, and allies. Were we ever in such a condition of potency of our enemies abroad? Suppose a man's house in an ill condition, and he calls his friends to advise about the repair of the breaches of it. One finds fault with the wainscot, another that the panes in the windows are broken, the other is for ordering the cushions in the chapel right, but says another, "Your timber is rotten, and the house ready to fall down." And says one, "Your house is beset with thieves and robbers. "In the mean time the servants are drinking in a room, and the soberest in the house are falling out about religion. If this be the condition of the house, how many years purchase would you give for it? Would resolve the House into a Grand Committee to consider of the safety of the nation in the condition we are in.
Sir Nicholas Carew.] Titus has omitted one thing;—servants together by the ears, who should cheat their master most.
Colonel Titus.] Moves that aspersions may not be in debates. He is the King's servant, and, if there be any such cheats, begin with him, or where you please else. But his motion, if observed, brings all cheats into consideration.
Sir Thomas Lee.] One way to secure the nation is to quiet peoples minds, and that is to keep men at home from service beyond the sea—And would have the state of the navy considered on Saturday. If the stores be full, 'tis very well; if empty, it will be no secret here, our neighbours may take notice of it.
Colonel Titus.] Neglect this, whilst your neighbours make such preparation, where will you be four months hence?
Sir Edward Dering.] Decay of seamen is not to be remedied; ships may be built in few months, and stores got.
Mr Sec. Coventry.] How hospitals have been managed, and what money has been spent which ought to be to maintain the lame soldiers and widows, is worth your enquiry.
[Resolved, That the farther consideration of the matter upon the translations of the Parliament-Rolls, be adjourned untill the Committee have perused and made their report upon the Statute Rolls.]
Debate on the Militia.
Sir Samuel Barnardiston.] Complains of money raised in the county he serves for (Suffolk) by order of the Deputy Lieutenants, for the Militia, and no account given for it.
Sir Thomas Meres.] Supposes that the Law for the Militia provides against this. They that do so may be indicted at the sessions. They are to be at muster fourteen days, at several times; but we are fonder of another sort of soldiers. He would have no more of them at Black-Heath.
Sir Thomas Clarges.] There are two defects in that Act. The one "the weeks tax, (which in Berkshire they have levied of the year passed) in arrear", and, in another clause, in Corporations and Cities the levies ought to be as formerly"; which is ambiguous.
Mr Powle.] Reminds you of an army upon the same continent that may invade you at home, meaning the Scotch army, (which is "to obey the orders of the Privy Council there.") They may order that army hither. Accounts for his county are duly delivered in at the quarter sessions, and yet money is lost and embezled, notwithstanding all the care that can be taken. But would not have the consideration of it go to the Committee, as is moved. The Trained bands else may soon degenerate into a standing army. Always, till this Parliament declared it, the Trained bands were kept as a secret how to be imployed. Would have only limited instructions to the Committee.
[A Committee was ordered to inspect the former laws relating to the Militia, and to report the defects, abuses, and grievances to the House.]
Friday, April 23.
The Address concerning the Duke of Lauderdale debated.
Mr Dalmaboy.] The Duke was not present at that Parliament in Scotland that made the Militia Act; he, in the next Parliament, settles the pay to 6d. a day for a foot soldier, and 18d. for horse. The officers all named by the King. Asserts that it was Lord Rothes who was Commissioner when that Act passed, and desires the Acts may be read.
Mr Sec. Coventry.] You give your opinions with reasons, which you strengthen by matter of fact. If the King should ask you, Whether the D. of Lauderdale was heard, or no, before you made the address to him? We are in the nature of accusers, and the King the judge. Will you accustom the King to this way of proceeding, to condemn a man without hearing him? Would hear Lauderdale first.
Sir Nicholas Carew.] Coventry says "we accuse and the King judges." When we accuse the King may hear him. We are in the nature of a Grand Jury.
Sir Thomas Lee.] This is no accusation, but a pure petition, that the King would deliver you from your fears, and you give him your reasons for it—Knows no occasion of hearing the Duke of Lauderdale in this business.
Sir Thomas Meres.] You deny his removal for these reasons, and those that are for common same have it. The very words in the address are taken out of the ancient record itself.
Mr Dalmaboy.] Gives an account of the manner of passing laws in Scotland, to show that Lauderdale could not be the sole contriver of this Militia Act.
Sir Joseph Tredenham.] If any other persons have done ill, let them be named (Mallet making general reflections) The first head of the address is upon what Lauderdale should say in the Council, witnessed by four of your Members. Different in some circumstances, though they agree in the main—The other relating to matters in Scotland. You are told "that 'tis the custom of Parliament to give the party accused notice of his accusation;" and this you have not done.
Sir Thomas Lee.] Takes him down to Orders. This is against your vote, to hear Lauderdale now. It may cause the withdrawing your address.
Sir Joseph Tredenham.] Are you accountable for all the Acts you move for here, and by the concurrence of all parties concerned?—If so, great men are the most unfortunate—All we complain of are Acts made in Lord Rothes's time.
Sir Edmund Jennings.] To the Edicts. Remembers, at the last session, this person and others were before you—You heard them, and found them not guilty of promoting Popery—You are speaking as things now stand—It is notoriously known what labour the Council has had to establish religion—Never were greater endeavours, wherein this Duke has been notoriously industrious (laughed at) and has had his share therein—Then it may be reasonably asked, how this accusation will be consistent with the present affair? If you accuse him, it must be with retrospection— But for the present state of things, he knows this Duke has been instrumental to suppress Popery.
Mr Garroway.] You are now making an address which you have had no answer of—It may be Lauderdale has been a month of the opinion mentioned—Pray God he may be a month longer so!—This justifies what you did the last session—Now you give reasons for what you then did.
Sir Nicholas Carew.] Thinks Lauderdale more culpable now, than he was before the Declaration—He found it lately not for his turn and then he's against Popery.—Would have neither the Church of Rome, nor the Church of Scotland, near the King.
Mr Sawyer.] On this head your address is already voted; for the matter of it was the first and only ground for your address—A prior reason—But as to the form you may alter it—" Amongst those who have advised your "Majesty, we find none more, &c."
Mr Sacheverell.] Would have it altered thus "We find just reason to accuse" instead of "more reason to accuse."
Sir Richard Temple.] Would leave out the general words, and restrain it to the Duke of Lauderdale only.
Sir Thomas Lee.] Would have "the Declaration, in terror to your Majesty's good people."
The Scotch law of the Militia was read.
Sir Lancelot Lake.] The Scots engaged against the King formerly by their oaths, and they are, he thinks, Scotchmen still, and would not believe them, though they take the oaths in the Act.
Mr Powle.] Now that the two crowns of England and Scotland are united, here's an Act whereby they may invade England—It may be justly thought that the chief officers in Scotland are the promoters of this—And Lauderdale is the sole manager there, Principal Secretary—Is the more induced to believe by that clause in the Act, of the power the Privy Council there have upon the soldiers—Especially considering that several of the Privy Council there have been turned out, that opposed this Act— He likes neither an army of Irish Papists nor Scotch Protestants—And thinks this a good ground of an address for removal of the Duke.
Mr Sawyer.] If there be any thing in the Scotch Act for invading England, he is against it—But observes that if we assign an ill reason for a thing, though it be so, we teach to deny. Let us consider if there be any thing in these acts that are of terror to England; and then, if so, who had a hand in them. The Acts seem to him to be pure Acts of Militia, and no constituting an army to invade England, but regulated as your Militias are here, and therefore necessary and legal—But if they differ from our Acts and way of Militia, 'tis no crime—They differ, it seems to him, only thus: Our soldiers, though removed out of one county into another, yet they are not to go out of England—If your Acts had given liberty for the soldiers to be drawn out of England, they had been as these Acts in terminis.—At the common law, tenures were bound to go with the King into Scotland—The power of contracting for soldiers to go with the King out of England is still legal. Hen. VII. If the King go beyond sea in person, those who are bound by Patent to attend him, are obliged to go with him, and those powers you have not taken away—These Scotch Acts are but a pure licence to carry these soldiers out of the kingdom to repress rebellion and insurrection—'Tis true, there are some clauses which impower the drawing them out "where the King's honour, &c. shall be concerned".—But still 'tis true they are but Acts of licence.
Sir Henry Ford] Does not remember any unwarrantable Act done by the Duke of Lauderdale in procuring this Militia Act. In the late times, in the several accusations against persons, no man was accused for procuring an Act of Parliament—'Tis like an accusation of poisoning the sea—But where is the ill consequence of this Act? —Titus told you his mind in a parable—Many men without doors are of his mind—Some are of opinion to build your walls, and it may be higher and bigger than your enemies—But suppose you should think it necessary to form an army, what has Scotland to do with that?—You will make Lauderdale have more friends than enemies by this address.
Sir Thomas Meres.] These words relating to "the King's honour" in the Scotch Acts, are to be interpreted by the Council of Scotland, and they have authority to send these men into England, which gives the exception.
Sir John Talbot.] There is a third Act which explains the other two Scotch Acts of the Militia.—Desires it may be read.
Sir Thomas Meres.] This was moved at the Committee,—and then they would have prevented any Act if it had been produced.
Sir Nicholas Carew.] This Act that Talbot mentions confirms and relates to the other Acts, and therefore strengthens them.
Sir John Coventry. Our whole business is to remove this person from the King—We are not so much looking into Scotland, but to our own safety—He sits counsellor here, and must eight counsellors of Scotland have power to send an army hither?—Hopes that neither Scots nor Irish Papists shall be sent hither—And moves for the address to be voted for his removal.
Which was voted accordingly, and is as follows.
"We your Majesty's most dutiful and loyal subjects, the Commons in this present Parliament assembled, do, with humble thankfulness, acknowledge your Majesty's care for the safety of your people, in calling us together at this time to consult of the best means for the preservation of our religion and properties; and tho' we have great cause to rest assured of the continuance of your Majesty's gracious disposition towards us, yet we find, upon a serious examination of the state of this kingdom, that there are great jealousies risen from some late proceedings, in the hearts of your subjects, that some persons, in great employment under your Majesty, have somented designs contrary to the interest both of your Majesty and your people, intending to deprive us of our ancient rights and liberties, that thereby they might the more easily introduce the Popish religion, and an arbitrary form of government over us, to the ruin and destruction of the whole Kingdom."
"Amongst those who are at present employed under your Majesty, we have just reason to accuse, for a promoter of such designs, the Duke of Lauderdale, lately created Earl of Guilford; because we have had it testified in our House, by several of our Members, that in the hearing before the Council, of the case of Mr Penystone Whalley, who had committed Mr John James, contrary to your Majesty's Declaration of the 15th of March, 1671, he, the said Duke of Lauderdale, did openly affirm, in the presence of your Majesty sitting in Council, and before divers of your subjects then attending there, "That your Majesty's edicts ought to be obeyed, for your Majesty's edicts are equal with laws, and ought to be observed in the first place", thereby, as much as in him lay, justifying the said Declaration, and the proceedings thereupon, and declaring his inclination to arbitrary counsels in terror of your good people."
"And we are farther confirmed in this opinion by two late Acts of Parliament, of a very strange and dangerous nature, which we have observed amongst the printed Statutes of the Kingdom of Scotland; the first whereof was in the third Session of the first Parliament, held there under your Majesty, Chap. 25. And the other in your Majesty's second Parliament, Chap. 2. The like whereof have never passed since the union of the crowns, and are directly contrary to the intention of an Act passed here in the fourth year of the reign of King James, for the better abolition of all memory of hostility, and the dependences between England and Scotland, and for the repressing of occasions of discords and disorders in time to come; and of a like Act, passed about the same time in the Kingdom of Scotland, by force of which said late Acts there is a Militia settled in that Kingdom of 20,000 foot, and 2000 horse, who are obliged to be in readiness to march into any part of this Kingdom for any service "wherein your Majesty's honour, authority, and greatness, may be concerned, and are to obey such orders and directions as they shall from time to time receive from the Privy Council there." By colour of which general words we conceive this realm may be liable to be invaded, under any pretence whatsoever. And this hath been done, as we apprehend, principally by the procurement of the said Duke of Lauderdale, he having, all the time of those transactions, been principal Secretary of the said Kingdom, and chiefly entrusted with the administration of affairs of State there; and himself Commissioner for holding the Parliament at the time of passing the latter of the said Acts, whereby the providing of the said horse and foot is effectually imposed upon the said Kingdom, and this extraordinary power vested in the Privy Council there: And we conceive we have just reason to apprehend the ill consequences of so great and unusual a power, especially while the affairs of that Kingdom are managed by the said Duke, who hath manifested himself a person of such pernicious principles."
"We do therefore, in all humility, implore your sacred Majesty, considering how universal a same and clamour of the said misdemeanours runneth openly through all your realm, That for the ease of the hearts of your people, who are possessed with extreme grief and sorrow to see your Majesty thus abused, and the Kingdom endangered, that your Majesty would graciously be pleased to remove the said Duke of Lauderdale from all his employments, and from your Majesty's presence and councils for ever; as being a person obnoxious and dangerous to the Government."
Lord Cavendish.] Informed the House of one Hamilton who held a Thesis at Leyden, of a strange nature, against the present government, De Ærario publicæ necessitatis, for which the Duke of Lauderdale procured him to be knighted, and he was presented with 500l. for it; and an office given him of Secretary of the inspections in Ireland—Would have Dr. Burnet called in, who is at the door, and interrogated about it.
Sir Nicholas Carew.] An arbitrary Duke may cause Dr Burnet to be hanged, drawn, and quartered, when we are up, for informing us—Therefore as we may punish Dr Burnet, if he refuses to speak his knowledge of what we shall ask him, so desires the house may protect him, if he rightly informs them.
Mr Vaughan.] Dr. Burnet comes under as high an obligation before us, next an oath, that can be—You cannot indeed extort a question from him, but you may punish him for refusing to answer what you shall interrogate him.
Sir Nicholas Carew.] Would have him told the power you have.
Sir Thomas Lee.] Moves that you mention the words that fell from him at the Committee who drew the address, for removal of the Duke of Lauderdale, which are the occasion of his being sent for hither.
Dr Burnet was brought to the Bar.
Then the Speaker admonished him, That he was sent for to speak his knowledge to what he should be interrogated. He then was asked about the words which fell from him at the Committee, and told the power the House had to punish him, if he refused to answer, or prevaricated.
Dr Burnet then said "That when he was sent for to the Committee he told them, "what others knew as well as himself he would declare, but humbly begged pardon if he did not inform the Committee what passed in private discourse betwixt himself and the Duke; there having been some difference between him and the Duke, it might be thought done in revenge"—Would willingly prevent ill things—but, with all humbleness in the world, begs pardon of the House for his silence, and submits it to the sense of the House."
Then the Speaker asked his knowledge about Sir Robert Hamilton's Thesis at Leyden, De Ærario publicæ necessitatis.
Burnet said, "He had not read it till within these eight "days." And withdrew.
Sir Nicholas Carew.] You have heard Burnet's answer, and desires the opinion of the House to his declaring the discourse betwixt him and the Duke of Lauderdale—He believes it to be something of a high nature—Would call him in to declare what he knows, which, if he refuses, would send him to the Tower.
Sir John Hanmer.] It is an ill precedent for a man to be put upon declaring private discourse—Would not have him sent for in.
Sir William Hickman.] This is not a private matter—It concerns the Public, and would have him sent for in.
Mr Sacheverell.] Fears that Burnet comes a fishing to know whether you will have any from him. If the matter he knows be dangerous, he ought to reveal it; if not, he is in no danger, and of which you are to judge.
Mr Vaughan.] The common safety is the cause. Counsellors reveal their secrets in their closets, not in the streets. "That it is not for Burnet's honour to say what he knows" is no argument, when he seemed to insinuate something more he had to say—For the danger of the discourse betwixt him and the Duke he is no judge of.
Dr Burnet then was again called in.
And the Speaker told him, "That the House was not at all satisfied with his answer, but believes he knows something important that fell from this Lord, which, if he concealed, he must expect to be proceeded against accordingly."
Dr Burnet then said, "He shall always pay obedience to the authority of this House, as becomes him. He never heard the Duke of Lauderdale say " That he intended to bring the Scotch army into England," but the Duke once asked him, "Whether he thought Scotland would assist the King, if he needed them, about supporting the Declaration?" To which he indefinitely answered, "He thought they would not." The Duke replied, He thought they would, and that they would bring a great many with them." This discourse passed betwixt them the first Saturday in September, 1673, in the Duke's dressing room, at the Gatehouse, in Whitehall. He withdrew.
Sir Thomas Littleton.] Burnet tells us, this was the substance of his discourse with the Duke; but would have him called in to inform them the circumstances likewise, which will much enlighten the thing.
Mr Vaughan.] Would know whether he came casually to the Duke, or was sent for by him.
Colonel Strangways.] Would have him asked what Declaration he means?
Sir Eliab Harvey.] Would have him asked, what he does know as to other matters?
Mr Garroway.] About that time he came over out of Scotland, you were about the Declaration—If you have a mind to the thread of all the counsellors that advised this Declaration, possibly he may give you some light—Would know of him whether he was sent for, or whether this was an accidental discourse.
Sir Rob. Howard.] Would have repeated to him what he has already said, that he may explain himself farther.
The Clerk, who was ordered to form what Dr Burnet had given an account of at the Bar, did read it to him, which Burnet did avow, and is as follows:
"That coming into England, out of Scotland, the first Saturday in September 1673, he went to visit the Duke of Lauderdale, at his lodgings over the Gatehouse in Whitehall, where the Duke and he discoursed of the affairs of this nation, and of Scotland, and particularly concerning the proceedings of Parliament touching the Declaration for suspending penal laws, in matters ecclesiastical, and being afterwards asked, "Whether if Scotland being called in to assist the King in supporting the said declaration, they would assist him or not?" he answered "He thought they would not." But the Duke replied, "He believed that they would, and that their coming into England would bring a great many."
"That the Duke asking him of the affairs of Scotland, he answered, "The people of Scotland, that were at such a distance, could not imagine what to think of the King's Speech, and what was afterwards done concerning the Declaration." Whereto the Duke replied "They have all forsaken the King except myself and Lord Clifford (fn. 8).
[The Debate was adjourned to Thursday.]