Grey's Debates of the House of Commons: Volume 4. Originally published by T. Becket and P. A. De Hondt, London, 1769.
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Saturday, March 17.
The King's Answer to the Address was reported by the Speaker, to this effect:
My Lords and Gentlemen,
"I am of the opinion of my two Houses of Parliament, that the conservation of Flanders is of great importance to England; and therefore, I assure you, I will use all means for the preservation of Flanders, that can possibly consist with the peace and safety of the kingdom."
Debate on Mr Harrington's Commitment resumed.
Sir Francis Winnington.] He humbly conceives the jurisdiction of the Council to be this: The case may happen, that they may commit a person to custody— If he be not bailable, he may be committed till delivered by due course of Law—The Magistrate cannot force Bail. 17Cha. I. Reports it not as to this man, but to all—The Council cannot punish the estate, or the person, in giving Bail. He is to have an indictment, or information, preferred against him, and he pleads to it.
Sir Thomas Lee.] Winnington tells you plainly, "That the Lords of the Council may commit a man;" but it must be in order to Tryal, not Punishment. The matter stands now avowed by the Deputy Constable of the Tower, that Harrington stands committed close prisoner in the Tower: What greater hardship can he have? It takes away preparation for his defence, if on suggestion only; and that 'tis so close, no man can come to him. He may be sent beyond the sea, or put to torture, and if the Warder of the Tower keeps Counsel, the man can have no remedy. He moves, therefore, that complaint may be made to the King, for keeping this person a close prisoner, and desire redress.
Mr Secretary Williamson.] The King (and for weighty considerations) commanded verbally the Constable of the Tower to keep Harrington close prisoner. This young fellow, for many months, and some years, has held correspondence with persons, (and there's reason to commit him to the Tower) and goes deep to subvert the whole Government. The thing is laid on this side the sea, and beyond Foreign Ministers are concerned. This is one of their Instruments who meddled with public matters. He questions, "Whether this be a Parliament, or no Parliament?" He holds, "That Rebellion must be against the three States, and not against any one of them." This has been said by this man, and good witness of it. He said, "That those hanged at Charing-Cross were hanged by the opinion of twelve men only." The servants of these Lords, now in the Tower, enquired for this man, and whether they might have access to him? He leaves you to judge, if that be our interest and concern, when he meddled with foreign Ministers, which every man abominates—The King has warned them not to intermeddle between him and his people. To show you the danger of one of their practices (Fonseça the Spanish Ambassador's Secretary) on this House, he has told it openly and maliciously (upon the business of the last Address from this House to the King) that the King should say, "That none but rogues and rascals had their hands in it." The King is doing himself right in this, and he hopes you will do so too—This practice of sending men over! He addressed a public Minister, about it, and all that he could obtain in the thing was, that the Minister said, "He was not concerned in the thing." This he reports. This lies hard on his heart, and hopes it does so on yours—The justice and honour of the House are concerned in it.
Lord Cavendish.] The Question now before you is, whether the imprisonment of this person be legal, or no? What his crime is, is not before you—Nor that of Scotland. We cannot suppose, that the King will do any thing contrary to Law; therefore he would have you address the King to complain of Lord Northampton (fn. 1), for detaining this person close prisoner, &c.
Sir Charles Wheeler.] He knows not, but by hearsay, this man—The most dangerous person to our body and concern, and the honour of the House! Williamson tells you not of this man's wild discourse— "This Parliament to be none"—He assaulted him at last—And so he cannot but keep it in mind— Should he not say it now, he could not acquit himself as he ought—He is one of the violentest men he ever heard in his life—And that is so close upon him when he looks about him—He called us "a pack of rogues," and, for ought he knows, made faces at the King— When you know this, he hopes it will make impression.
Mr Stockdale.] The thing in question now is, Whether this man should be kept close prisoner, being committed only for Subornation of Perjury, and Contempt of the Lords of the Council?
Sir Thomas Lee.] He never saw the man, nor knows any relation of his. But he moves not for his sake, but for those we represent—He shall go as far as any man to impeach him, if accused; but would not punish the worst of men (that may concern the innocentest most) without accusation. Let not the nature of the man take you off from that which may concern any man.
Sir John Ernly.] If the King cannot do this, (imprison, &c.) his Government is a straw. Every man then may talk, or preach any thing—He would be a King of clouts, if this cannot be. As for the man, examine him, but deny not the King that right, in the mean time, which belongs to him.
Mr Garroway.] Would not examine here what is the King's right. But if these crimes of Harrington's were so enormous, he is sorry we knew it not yesterday. Then we were told he was committed only for Contempt of the King in Council; and if this be done since, why was he committed before, and we heard nothing of this yesterday but Contempt, &c. And whether that be sufficient matter to commit a man close prisoner for? The Warrant of Commitment yet signifying nothing else, he would have Lord Northampton give you an account why he keeps him so.
The Speaker.] He stands committed for Contempt, &c. and by the King's verbal Order to the Constable, he is kept close prisoner. The Warrant runs thus: "To take into your custody Mr Harrington for Subornation of Perjury, and stirring Sedition in the Government, and Contempt of the King in Council."
Sir Robert Carr.] Harrington's corresponding with foreign Ministers, when they shall say such things of the King, and then carrying himself so at the Counciltable, is a just cause of Commitment.
Sir William Coventry.] Nothing occurs to him yet against the Warrant of Commitment, "for Subornation of Perjury, and carrying himself contemptuously to the King"; and so he has no cause of objection to that; but "being made close prisoner" sticks with him. If the King has just cause to suspect any man of contriving seditious matters against the Government, he may be restrained some time, a moderate one at least, left others sift out the matter from the prisoner: But that ought not to be "by verbal Order." But as for them that keep him by a verbal Order, the Law provides that the prisoner may know where to trace the Warrant of Commitment, and have remedy; and he thinks it against Law to restrain the person "close prisoner," without Warrant for so doing; and he thinks the Constable to blame in it, and not the King—Else how shall he come to have his Habeas Corpus? He desires you would declare that it ought not to be so now, nor for the future. Certainly the observation of our Law deserves a sheet of Paper for a Warrant; if it be not worth that, it is very little worth. If the Constable had desired it, the King would not have denied it; and it is his fault. For the future, if such Commitments be, in God's name, let them be in writing; and he hopes you will discountenance this.
Mr Vaughan.] To imprison a man after another manner than the Warrant imports—The people will not know how to be safe. Certainly you ought to brand this Commitment, and to blemish the private Order as contrary to Law, and so the Commitment from the Lords of the Council.
Lord Obrien.] He finds Harrington committed "for Contempt of the Council"—That this has pursued the course formerly practised, is certain, without which the Government cannot subsist; and if it had been done 30 years since, possibly there would not have been those unfortunate consequences—If it do not appear that the Constable has such a Warrant from the King of keeping him "close prisoner," possibly that other may have followed. He is for the Privilege of the subject, but would not wound ourselves when we go about to right Harrington.
Mr Williams.] From E. III's time till the late King's, he finds constant complaints of such Warrants from the King's Council; all declared, by several Acts of Parliament, contrary to Law. "No man can be committed, but by legal Warrant, or matter of Record—" 3 Char. I. In the Petition of Right, that Warrant is expressly complained against. This Commitment is "for Subornation of Perjury, and Sedition against the Government." No man can say any thing, by that Warrant, that he is not bailable. It is bailable in its own nature. But now, no officer, judge, or justice, can come at him to bail him. This Commitment is for an offence bailable by Law, and he is in consequence a close prisoner not bailable. How can this possibly be justified? It is said "there was some Order from the King to keep him close;" but that is directly against the Petition of Right. 3 Char. I. "The King can do no wrong." The Commitment above is a nullity. This is void in Law, and the Constable cannot justify detaining him.
Mr Sawyer.] All Commitments are in salvâ et arctâ custodiâ; and if a person be committed for Debt, and the prisoner be unruly, the Keeper may lay irons on him. Or a highwayman may be hindered from his accomplices coming to him. He says that, if the Constable be informed that dangerous people come to him, without express Warrant, either by parole or authority of his Warrant, he may do it. Such a thing as the Jailor denying his prisoner comforts of life, is punishable in the Jailor; but he may refuse persons coming to him. It is not time to pass any thing that is moved to you relating to the Constable. Harrington is bailable by the Commitment. For Contempts, and things properly within the examination of the Council-table, it is lawful for them to commit; and this Commitment is only in order to bring him to his Tryal—He would have him called in, and examined to particulars.
Sir Harbottle Grimstone.] Has known it in all his time, that the Courts of Westminster have made Orders to commit prisoners to their chambers; and that is arcta custodia, confined to their chambers; but neither he, nor any Lawyer, can say that persons were denied to come to them. He sees nothing in the Warrant, but justifiable Apprehension and Commitment. For matters of State, it is convenient that the person committed should be restrained; but if so, he is not to be buried alive, to have no man come at him. How then can he get his Habeas Corpus, or prepare for his defence? He is not against bringing in the party that petitions, to hear what he can say. He is not brought as a delinquent, but the House would be informed what he has to say. The King neither judges nor commits any man in person; but if now a man should be committed by a verbal command, see the consequence: By Habeas Corpus he is brought to the Bar, but the Constable has another verbal command not to bring him; but the Judges, you will think, will take notice of verbal command. He will farther show you the danger of this: Suppose a man be indicted for Felony, and is to be hanged by the neck, upon his conviction, &c. and the Sheriff will cut off his head; surely it is Murder in the Sheriff. He is committed prisoner, and the Constable will keep him close. Will Westminster-Hall justify it? If a man be ever so innocent, this is the way to make a man nocent: He would agree to the Question "about the illegality of the Constable's keeping him close upon verbal Commitment."
Serj. Maynard.] That Argument of "the Constable" is not at all before us. A verbal Warrant is not justifiable, to detain a man close prisoner by, when he comes to a judicial way. Debtors cannot be kept in chains; and Felons, if they die in prison, the Coroner sits upon, to enquire whether they died by duresse: Judgment is according to the nature of the crime. Suppose this man be committed close prisoner, by a verbal Warrant—That does not appear yet: You may ask, for it concerns you to enquire; therefore moves to call in the man, to hear him.
Sir Thomas Clarges.] Heard not the Warrant read; it seems, Maynard has—And that close restraint was by the King's verbal direction. All the Long Robe have said, "All Commitments, by verbal Command, are not legal." There is an expression in my Lord Chancellor's Speech, at the opening this Session, spoken in the King's presence, and therefore may be taken to be by the King's approbation; "That there is a general diffidence abroad in the nation, which, like an infection, begins to spread itself into almost all the corners of the land." These Commitments are some of the causes of that diffidence. It was said of the felicity of Trajan's time, "That there was such an exact Administration of Justice, that no man could find fault: A man might think what he would, and write what he thought." He hears not that Harriot, the Scotchman, is bound over to prosecute Harrington. Williamson said, "he knew not where he was"—When the Master in Chancery read the deposition to the Scotchman, he was not surprized at it; and there is no ground for Harrington's Commitment for Subornation, &c."—and moves that we may complain of the Lord Constable, for detaining him close prisoner.
Mr Secretary Williamson.] Harriot, who deposed before the Master in Chancery, he is informed, is without, at the door.
The Speaker.] Would know to what points to ask Harrington, when called in?
Mr Garroway.] Moves to adjourn the Debate.
Mr Vaughan.] If you adjourn this Debate, the people never will put it out of their thoughts, and he would have a day special to debate the great matter of Commitment, &c.
Mr Sacheverell.] Seconds the Adjournment of the matter of Commitment till Tuesday, ten o'clock; and would have Harrington called in now, and heard what he can say to his Petition. If he says any thing from the purpose, you may silence him. In his Petition, he suggested, that "he was a close prisoner." He would hear what he has to say.
The Speaker.] When the Petition was signed by him, he was a prisoner to the Messenger of the Council (not in the Tower) who had orders to keep him close, as he was informed by the said Messenger who kept him.
Mr Harrington at the Bar.] I am sensible of the honour the House has done me on this occasion, in receiving my Petition, and permitting me to come to make it out. It is my opinion, and I hope I am not in an error, that the liberty of being tryed per judicium parium suorum is the undoubted Right of the subjects of England. Parliaments are called for urgent and weighty affairs, concerning the King and defence of the State, and against the mischiefs which daily happen. These are the proper subjects of Debate; and it is proper for the Members of this House to apply themselves to subjects, and they to you, on occasions of this nature. I am come to fling myself upon the Protection of this House, and I hope for it. I met with some Scotchmen, who came from Ostend, taken by the Spaniards, pressed out of Scotland, &c. and I did what I thought was my Duty. I acquainted several Members of the House, that they could make it appear, how they were pressed for the French service in Scotland, after the King's Proclamation, &c. They did agree that I had Reason and Justice in such an application.—One of them, Redcastle, a preacher, and a favourite of the Duke of Lauderdale, was offered 20l. (it was an inconsiderable sum for a man of his quality) to forbear giving in Evidence, &c. I took in writing what the Scotchman informed me, and carried it to Sir John Coell, a Master in Chancery, where the Scotchman made Affidavit of what I had written. The next day, I was committed to a Messenger, for dangerous and seditious practices, where I was kept in durance, with one Lemmon, and Mr Murray. When I was brought before the King and Council, the Lord Treasurer acquainted the King, "That this was a Whipster, and a dangerous fellow to the King and Government." The Chancellor asked me several Questions, "Whether I knew Harriot?" The Treasurer said, "I told you what he was; he will give you no direct Answer." I was asked, "Whether I went with Harriot to a Master in Chancery, and who that Master was?" I said, "Possibly his name might be Coell." The Chancellor was studying more Questions—But I desired him "to think of no more Questions, for I was resolved to give no Answer; but, being come thither accused, I would answer according to Law." But this was construed a Contempt, and, though for nothing else, I suffered Imprisonment. My father and grandfather were particular servants to the King, and I owe Obedience to the King, and hope, for the particular actions I am accused of, to be justified by the Parliament, and submit myself to his Majesty. I have given you as just an account of the matter as I can. From the Council I was sent close prisoner to the Tower, and forbid pen, ink, and paper. I was locked up, and no person admitted to me, but the person of the house where I was kept was civil to me. I had what meat I would, but was not suffered to walk upon the leads. I do not desire Bail, but the benefit of the Law. He withdrew.
Col. Birch.] Harrington tells you, "That for doing his duty as a Commoner of England, and for Privilege of this House, going to a Master in Chancery, &c. he was clapped up close prisoner." He would have the Affidavit made before the Master in Chancery, annexed to the Petition, read.
The Speaker.] There was no Affidavit annexed to the Petition, and you (Birch) cannot make Affidavit of it.
Col. Birch.] He would not make Affidavit, lest he mistake, as the Speaker did in Declaration of the Law about Petitions.
The Speaker.] He mistook only the fore part of the Law for the latter; and he hopes his mistake will never cost the House so much as Birch's has done (in something relating to a Tax-bill.)
Col. Birch.] Whatever his mistake has cost the House, he is sure the marks were not upon the bags— (meaning that the Speaker had lost money at play, and the King's marks were upon the bags he sent the money in, being the Navy-bags.)
The Speaker.] Hàrrington's crime is Confederacypractice, and Subornation of the Scotchmen who were brought by him before a Master in Chancery.
Mr Swynfin.] The Speaker should have reported the heads of what Harrington said, and Gentlemen should not rest upon one another's hearing.
Harriot, the Scotchman, at the Bar.] I am a Scotchman, and eight weeks since I came out of Scotland, and was Capt. Reeves's man, in Lord Douglas's regiment, who levied men in Scotland for the King of France's service. He has levied 1000 men since the first day of January. We went on ship-board, and some were willing to go, and some were taken and put into prison that would not go, when they had intelligence that men had not such things in France as they were promised. Our officers only put us in prison; afterwards we were put on ship-board, taken by the Spaniards, and carried to Ostend, where I was a fortnight in prison. They desired me to go into the Spanish service. There were about sixty of us that would not take service, who were all put close prisoners. About twenty or thirty of them took service in Holland. Those who remained, petitioned the Governor of Ostend, in a Latin Petition, to go home, and we had a Pass the morrow after to go home. Accidentally as we passed to Newport, to go to Dover in the King's packet-boat, we met with Capt. Douglas, and Capt. Innis, who pretended great friendship to us, and came to our lodgings, and gave us a letter to the Spanish Ambassador at Wildhouse, and directed us to call for Mr Fontseça, who speaks good English. When we had found out Fontseça, he gave us a crown, and ordered us to come again to him the next day, and desired us to take a lodging. I went to his chamber, where was Mr Harrington, whom I knew not; and he bid us go along with him, and he would have good care of us. He sent for us to his own chamber, where was one Mr Robert Murray, a Scotch Laird. Harrington desired to know of affairs in Scotland. He gave us a bottle of wine and sack, and came the next Tuesday to our chamber at eight o'clock; and afterwards took us (Lemmon and Harriot) to Lord Cavendish, to tell him what we had said to Murray, who took a Copy of our Speech. Mr Murray persuaded us to give Evidence to the Master in Chancery, where I declared what I knew — Fontseça sent for me to his own chamber. I gave Harrington a Paper I had writ, wherein were many things "of tying us together like slaves," and other things done to us in Scotland.—But I would not sign that Paper for all the world — Murray told me, "That I must keep out of sight of the Duke of Lauderdale, or his servants"— Mr Redcastle offered me nothing, not to sign—He is brother to my master. Murray and Harrington told us, "That we should want neither money nor friends, and he would get me to be Lord Shaftsbury's Taylor." Murray said, "That he had sent news to Duke Hamilton of all this"—We were put into the common jail. Some came volunteer-soldiers, others were pressed; and those who found they could not have conditions offered, would not go, but were put into another ship, and shipped in the Port of Leith. I never saw any Proclamation against going into the French service, nor heard of any—One of us was in the Jailor's custody, on account of borrowing money and running away with it. He withdrew.
Mr Sacheverell.] This person now denies the very thing he told him, "of their being tied, &c. and that officers went on shore after the Proclamation;" (the same he told Sir John Morton and Sir John Coventry) and "that since 1675, above 2000 men came in, some of their own accord, but most were pressed out of their beds;" and "that a certain officer carries the King's Badge, and puts it in his pocket, to put it on as he sees occasion"—And this fellow was positively sent away against his will, tied; and one of them being unwiliing to march, his ears were cut off; the soldiers were not suffered to come on shore, nor their friends suffered to come to them.
Lord Cavendish.] Murray, one morning, told him, "that these two men were sent into the French service; they were taken by an Ostender, and stopped there"— Most spoke to this purpose: "They were taken on the highways, tied together, forced to go, and their ears cut off." One fellow, endeavouring to escape, was tied to the mast of the ship: This fellow said, "That after the Proclamation, he came ashore."
Sir John Holman.] Give him a private Warrant, and he will undertake to bring the persons that shall make all this good.
Mr Murray at the Bar.] I am a prisoner, taken on Tuesday last—I have been five years out of Scotland—I have no estate, office, business, nor law-suit here—I cannot go into Scotland till I have some assurance of the Duke of Lauderdale's favour; for I was five years ago in irons, by the Duke of Lauderdale's means — I was accidentally in Mr Harrington's chamber, and went with Harriot to a Master in Chancery; who desired me, as he was in a low condition, to help him. He told me, the first time I saw him, "That he was carried with a thousand men out of Scotland, against his Will." The other man told me, "He was carried by the King's Messenger." Harriot desired that he might have his Oath given him; (a Master in Chancery is an unknown thing in Scotland) He is a close prisoner (not allowed pen, ink, or paper) in the Tower. A fortnight ago, I made a visit in the Tower, before he was prisoner.
The Speaker.] What Members were with you in the Tower ?
Upon which he was ordered to withdraw, and he did; some Members saying, (though not to the Chair,) "That that Question was not proper to be asked him."
Sir Thomas Clarges.] One great Conspiracy you have found out against the Government, viz. levying men, contrary to the King's Proclamation.
Mr Murray again.] I went to the Tower above a fortnight ago, to wait upon a very worthy, noble Friend, Lord Shaftsbury. I went with Lord Ashley, his Son. I never saw Fontseça, nor was ever in his company. After Harriot had given Affidavit, he was undone for it, and dared not go into Scotland. He was offered 20l. and to be in the King's Taylor's service, if he would not make Affidavit; Sir Francis Rutbven offered it to him. I asked him, "Why he would be so unkind to his Countryman?" The Duke of Lauderdale was to get Ruthven to be Mayor of Edinburgh. He informed me of taking men from Scotland to the French service, &c. About 200 of them were shut up in prison after the King's Proclamation—I never promised Harriot to be a servant to Lord Shaftsbury, nor ever named the Name to him. I gave Harriot my coat to carry—He returned not my coat, but changed his quarters, and ran away. The Paper Affidavit was read to him above twenty times over; and I advised Harriot, "Be sure you swear nothing but what you can justify." This Harriot came several times to my chamber, but never after he got my coat from me. The whole Kingdom of Scotland can witness, that men were levied for the French service, and put into Jails, &c. I named none related to Duke Hamilton to Harriot, nor ever told him, "that the news would be acceptable in Scotland."
Then Harriot and Murray were confronted.
The Speaker to Harriot.] You took an Oath, and would not stand to it.
Harriot.] I would not swear to what my comrade said—I will not swear conjunctively, but severally. They withdrew.
The Speaker.] Remembers the Precedent of Withers, for libelling the House and Government, who made Hymns and Psalms on the Murder of the King, 30th of Jan. for Thanksgiving—"The King committed him close prisoner for libelling the House of Commons." (Out of the Journal) "Withers was brought to the Bar, and was showed the Writing; who said, "he thought it his, but it was not so full as he intended." He was found writing them, and examined by the Attorney General: Whereupon the House Resolved, "That Withers be kept close prisoner in the Tower, without pen, ink, or paper; and none to come to him." And it was referred to a Committee to draw up a Charge against him, and to take farther information. In the 15th of Char. II. his wife desired leave to go to him, in order to his recantation, and submission for his Offence. Ordered, "That he be discharged, giving surety Pro bono gestu."
Sir Henry Goodrick.] The Arguments of this day are on two heads: The King's Prerogative, and the Privilege of the people. The Prerogative is confessed so far, as to confining persons obnoxious to the Government. Harrington and Murray are under that head: They are accused of holding correspondence and practices with foreign Ministers. There can be no security to the King, unless there are such powers of confinement in the King. The next is the people's Privilege; and for that we are particularly assembled, which is dear to us all, and to him. He moves therefore, "That since Harrington is committed close prisoner, by a verbal Order, we may humbly address the King to signify such a verbal Order, &c. and desire it may be avoided for the future," and that this Debate may cease, and no more be heard of.
Col. Birch.] We have been whipped soundly, by that Precedent of Withers, with our own cords. The account of Withers is abominable, and so is the Precedent; we were then but a very young Parliament. This proceeding is against Law; if so, it becomes us to go all healing ways; therefore he seconds Goodrick's Motion, "That the King be intreated that thing; of this nature be avoided for the future, and that Commitments may be according to the Law of the Land."
Mr Garroway.] He is for an expedient to keep us safe in our Liberty, and to end the Debate, that this Gentleman's Case be not brought into Precedent; and that a man, bailable at Common Law, may not be committed close prisoner. The precedent of Withers is in relation to Impeachment; but if he had a hand in it, he is ashamed of it. Harrington's crimes are not justifiable—But he would pray the King, "That no Commitment of persons, for the future, may be without Bail, for things bailable at Common Law."
Lord Cavendish.] He is yet more alarmed, when the Speaker finds Precedents to justify such Commitments. You did not tell us, that we found Withers a close prisoner, and then he confessed what was laid to his Charge; but this person, who was at the Bar, is innocent. His Case comes not up to Withers's, and Precedents may be found for the worst of things.
Sir Thomas Clarges.] When Lord Clarendon's Case was before us, it was declared, "That Law of Parliament was the Law of the Land." Withers's Crime was pen, ink, and paper; and therefore it was forbidden him.
Sir Thomas Lee replied to Downing, who said, "Withers's Precedent was when things were fresh in memory of the late murder of the King and the rebellion,"] Yes, the matter of 1652, of renouncing the family of the Stuarts, and abjuring Monarchy, was fresh in memory; and then Downing was Ambassador to the States of Holland. "As to Monarchy, the Government of England must be by a Commonwealth; they could not be safe without it."
Mr Sollicitor Winnington.] With what diligence he could, he has observed this day's Debate; for if nothing be in the Case before you, but the written Commitment, the more it is seen, the more Gentlemen are satisfied. 13 Char. II. Crime of defaming the Government—Though the Warrant runs, "to be kept in salvâ et arctâ custodiâ," yet the person is bailable. He denies any parole Commitment of this person. The King's parole is an Advice and Direction, an Admonition, viz. "You must keep him close, according to Law." He cannot say that a parole Commitment is justifiable, but this is not. Is it not an ordinary thing for a Justice of Peace to order the Jailor to keep a man close, when the thing is in fresh pursuit? When in Courts a man is accused of Treason, that more of the gang may be catched, the person is kept close, but not for any length of time. This is an instantaneous direction, and justifiable. This Gentleman was committed two or three days ago for seditious words, a good cause of Commitment, and so judged in the Petition of Right; and Mr Selden's Case, not for seditious practices generally, but for answering what he said in the House: That will import, as if something was illegally done abroad: That of "close prisoner" must have a charitable construction; and when the bottom is considered, no man intended to go beyond the tether of Law in this Commitment.
Mr Harrington was dismissed, and the farther Debate of the thing was left, sine die (fn. 2).
Monday, March 19.
Lord Cavendish and Sir John Coventry moved to enquire about moneys levied upon Wine-Licences, against Law; and named Mr Powle, who gave them the first Information of it. Mr Powle was out of the House, aad the Motion went off.
Tuesday, March 20.
A Bill from the Lords, entitled, An Act for farther securing the Protestant Religion, by educating the Children of the Royal Family therein, and providing for the Continuance of a Protestant Clergy, was read the first time (fn. 3).
Sir Harbottle Grimstone.] He has heard of this Bill, and liked the report of it well, but never read it. He finds, that it intends "securing the Protestant Religion, &c." but he would not, under pretence of providing against Popery, do things against the legal and monarchical power of the Kings of England. He wonders that it passed the Lords House, and made no more noise than it has done. He thinks there is a vizard upon the face of this Bill; and he hopes every Gentleman here will give his helping hand to pull it off; and then we shall see the spots on the face of this fair Bill. In the last Session, the Lords were very busy in framing a Test for people to take, to secure the Government, &c. which miscarried; now here is a Test provided for the King, and no man has less cause to be suspected. Religion was delivered by Christ and his Apostles, and when there is cause, we are to assert it like Christians. It is not unknown with what care and courage the King educated the Duke of Gloucester, (perhaps not without the displeasure of his Mother) which God, he believes, gave such a blessing to, as made way for his happy Restoration. (But this by the bye.) He will come a little closer. He finds in this Bill, that there is an engrossing and appropriating "the administration of this Test to be given the King by the Bishops," exclusive to the Commons and Peers of the Realm— Are we not all Christians, and as free to burn when they may chance to turn? This is such a design, if looked through, as possibly never was in any Parliament before. Suppose the King shall refuse the Test— Then here is provision in the Bill, "That the Bishops shall supply the office of the King, and are to present to the King three persons to fill up vacancies in the Church promotions, for the King to chuse one." And suppose the King will not chuse one of the three, and will nominate another; and then the Question will be, "Whether of the two shall we stand for?" He is sure, that, before the Conquest, the King made Bishops per traductionem annuli et baculi; but now, it is true, it is done by Congè d'elire, but yet the King has the making of them; and if he does not make them, he is sure they are all in a præmunire—For his own part, he will defend the Crown of England, and the right of it—He is an old man, and hopes his opinion will descend upon them that shall succeed him—We must deny the Bishops this Precedency in Ecclesiastical matters. If this be, this is a design to pull off the Crown from the King's head at one pull. He is not of the Bishops half crown authority in this patriarchal power they would get —Consider the vast changes this would produce in the Government; it will call for another Oath from the King, besides his Coronation Oath. The main thing is, to maintain the Doctrine of the Church of England. What think you of the Oath of Supremacy? If the King be a Papist, it consists not with that: Is it for the safety of the Nation to have that taken off, and put into other hands? The Test from the Lords came not down to us the last Meeting; and he hopes that Allegiance is where it was, and ever will be. The King is sacro oleo unctus—He hopes that Religion, Duty, and Allegiance will ever give duty to the Crown, when the Church did most suppress it—This power, in the Bill, to the Bishops, is not in our power to give. It has been said "that Parliaments are omnipotent;" but as great as that power is, there are things not in the power of Parliaments to give away. Monarchical Government cannot be put into a Commonwealth; it is an Authority we have not in our Custody—Suppose we present the King with a Law to cancel Magna Charta, and to be all slaves;—if so, all would be void in itself. There are things not in our power to do; and he thinks this is one of those things, and would throw out the Bill.
Sir John Birkenhead.] In the Long Parliament, there were Bishops that turned, &c.—
Mr Mallet.] No wonder the Lords send you down such a Bill as this, whilst they keep such wise and understanding Lords in the Tower, &c.
Sir Thomas Clarges.] Remembers a story of the Countess of Shrewsbury, and Mary Queen of Scots: The Queen of Scots desired "That Queen Elizabeth would take no ill impression of her, for she wished much prosperity to the Queen." The Countess of Shrewsbury replied, "She believed the Queen loved Queen Elizabeth as much as she did; but when Popery takes her away, you will be Queen, and all that Affection vanishes." He would not suppose that Popery may be, but should we be sounfortunate as to have a Popish King, and the Pope make Bishops, must not these be allowed of? In the Gallican Church, some Bishops the King nominates, and some are of the Pope's nomination. If the Pope makes the Bishops de facto, he is Bishop, though the King separates the temporalities. But should a Popish King be, where is our security? He would have this seriously considered—But would rather have an Act of Association, for securing so terrible and dreadful a consequence; and desires that the Bill may be read here no more.
Mr Sec. Williamson.] This is the first time of reading this Bill, and it is of an extraordinary nature; and because the case is extraordinary, therefore it is an argument for a second reading. The purport of it is this: "That should the misfortune befall the kingdom of a Prince of the Romish Religion, that then you may endeavour to preserve the Protestant Religion as one man. By that means, to have a Protestant Clergy, three are to be presented to the King, by the Bishops, to fill up Vacancies; and the King is to take one." If that objection be valid, "That this is out of our power to do," it is no purpose to make any Laws. Though this Bill comes not up to the whole of the cure, yet this House and the Lords may make it up—Though the Church of England be in a body of Professors of the Protestant Religion, yet to be taught they must be sent; and whilst we have Protestant teachers, he hopes we shall be so ourselves. It is said, "this Bill is to raise a Faction between the Laity and the Clergy." He thinks this Test proper to be given by such persons as may be supposed uncorrupt and untainted in Religion—The Church of Rome, corrupt as it is, sees a great part of the world differ from them in administration—The Church of France has its own pragmatica sanctio; and the Confessor does not contend that with his Prince. This Bill is a weighty matter, and for that consideration moves for a second reading.
Sir Thomas Lee.] This Bill looks strange; he knows not what to call it, unless an Essay—If nothing will attain that end but this, all other ways are free to you this Session. The first part of the Bill is, "That the Bishops shall give the King the Test;" and the second is, "for the education of the King's children to be under the Bishop's care from the age of seven to fourteen." It is to a good end for children, when fit for little but play, to be taught the Protestant Religion. Huddleston, the Priest, is exempted from this Act, and may appear in all his habits (fn. 4). Next, he observes, that, as the King can do no wrong, so, by this Bill, he may be guilty of a crime; he shall not have such and such powers—It is a disability for something not done, and implies a crime—He knows not how you will put the Supremacy into the hands of the Church—Hears a disputation of the King's Supremacy—If it seems your opinion, that sometimes he shall not do it, he would be sorry to see that time; it frights him, when he thinks we must be made use of to try our temper how far we will bear—As in case the King have not power in Ecclesiasticals, it may be in Civils also. He knows not what these things may grow up to in time. He is concerned in not putting the Crown of England into disputes, when it is said there may be such a crime as the Crown may be disabled thereby. Is not this in the nature of convicting a Popish Recusant? He has heard (he was not old enough to remember it) that at the beginning of these times there was a noise of Papists and Popery; but what did provoke the people more than fears of change of the Government? This Bill may be an umbrage of inducement to a standing Army—The King cannot, by this Bill, present to Bishoprics and Prebendaries—It leaves the Lord Chancellor free to present, and the person presented is capable of preferment. He may, though the King shall not—Here is good care taken of every body but the King, in this Bill. He sees not the use of this. What you have already before you of a Bill of Popery, may be of use. You will, by this Bill, disinherit the Crown; and this has nothing of the loyalty of this House of Commons, that yet did never any thing like it. He would reject it.
Sir Job Charlton.] This arguing is proper for the second reading of the Bill. The Question is now, "Whether the Royal Issue shall be bred Papists, or not;" and this Bill may be made a good one. H. VII. came to the Crown by a title from his wife—His attainder was purged by coming to the Crown, and whatever you do to the Crown, the possession purges all that away—He may be of what religion he will, be he Mahometan, Jew, &c. Allegiance is not tyed to his religion, but to his title to the Crown. The Bill intends "supplying vacant Bishopricks by three presented to the King." What can you do more mannerly to a Prince, than to tender him three, and he to chuse one? The same as chusing Sheriffs by Act of Parliament—Pray God other folks of different principles use the King so mannerly! If to speak against the Bill at the second reading, he should not think this unmannerly—'Tis objected, "that, by this Bill, the Popish Bishops may come in"—Read it the second time to see—But 'tis improbable. For in times of Popery there was præmunire, E. III. to take any Ecclesiastical Jurisdiction of Bishoprick from Rome—"Forfeited lands, and goods, and imprifonment during life, and to be out of the King's protection." The Church of England oppose Rome all along in this matter—He is a strange, weak King that would ever admit it again. The Bill being in design "That the Royal Family should be bred Protestants, and to prevent Popery," show so much respect to the Protestant Religion, as to give it a second reading.
Mr Vaughan.] We owe a natural Allegiance to the King, as well as a political. He thinks this Bill will be an unfortunate stain upon the Nation. The King was once deprived of this Kingdom by Arms, and that was by the power of some few persons. But now this Bill will do it by Law, which is the sense of the whole Nation. The Laws since H. VIII. contended to settle the Supremacy on the Crown, that you would now take away. Shall the King give this power away, and lodge it in the Ecclesiastics? When the King once passes this into a Law, he divests himself of his right, and puts it into the Bishops.
Mr Sawyer.] He is sorry for the passage of "taking away the King's power once by Arms, and now by Law," which fell from Vaughan. All Laws you can make are a taking some rights from the Crown. 'Tis so far from a possibility, that 'tis an easy probability, that this suggested in the Bill may happen, and this House is always for suppression of Popery—And this supposes the consent of the King—'Tis said, "That the King's Children's Education, from the age of seven to fourteen, in the Bishops hands, is ineffectual"— They may, at that age, learn their catechism, and it is not a time for play only, but education and learning, and at that age every private man may chuse his guardian, and they are careless of their education if not rooted by that time in the principles of Religion. He would be glad to see a Bill for the Education of the Children of all men. In securing a new Clergy upon such a change, we have gone a great way to secure Religion. This is no imposition of an Oath upon the King. All alteration of Laws is altering the Coronation-Oath as much as this Bill—But this, it seems, is the fault that this power comes to the Bishops, and that it may come to the lay hand. He challenges any man to show him that Protestant Bishops and Clergy ever invaded the Crown of England. They have been great props to it. He is for a second reading.
Sir Robert Howard.] You were certainly well told by Vaughan, "That this Bill implied little less than the thing once done by Rebellion, and how by Law," and much less to be done by Rebellion, than by Act of Parliament at one stroke. You were told by another, of "the noise abroad the rejection of this Bill would make;" and must you level your Acts of Parliament by that? It must be by arguments in the House, and the nature of the thing solemnly abstracted, the reason of the thing. He shall not touch upon that of the Education of the Children—The main scope of the Bill is for the Bishops. If the Act for Sheriffs was penned as this Act, it would be stark naught; the Country to chuse the Sheriffs, and there in Sheriffs as this is in Ecclesiastics. If then we are told that there is no proper way to secure the Religion but by Ecclesiastics, if a Test had been proposed to be taken by all that have Patents of places, and the Long Robe that are in offices of Judicature, then you would go thro' with it. He has been told, that the Clergy have been tampering in their prayers already (fn. 5). This Bill will make a perpetual quarrel with the Clergy; and when we were under one faith with Rome, we were still complaining of their encroachments. Secure us that a Protestant Clergy are not flesh and blood, and it is but a charitable opinion, and no more, that the Bishops will not make an ill use of this power. He believes that no Clergyman will be Popish; but suppose they be, if the King and they be both inclined to Popery, who shall give the Test then? There are 25 Bishops in the Lords House, and though the Bishops desire not this power, yet it is here in this Bill—And if the King refuses this Test, here are so many Kings in his stead— An Act may take from the King, and yet be good Law —A Popish King will take care that no Judges shall be made by him for maintaining our property. Why should not there be a Test for the Judges, and the Bishops to make them too? After all this, if the King will chuse the Bishops, what opposition can be made? Shall we fight for these Bishops against the King? An Act of this great nature he sees not one good effect from —Only he hopes, spirituals being rectified, properties, and all that, will not be left without notice. He believes the Lawyers will not tell you—All under-preachers are left free. He is against a second reading.
Sir Thomas Meres.] He is sorry to differ from Gentlemen that he has not differed from this Session—He sees not the whole turn of Laws, and scheme of matters of Popery point now (fn. 6) and a new remedy must be appli ed. It is said, "In some parts the Bill is too big, and in other parts too little." But you may enlarge and streighten them. Throw not out the Bill, and you may be in a lethargy, lying on your backs, and giving yourselves no help unless some comes from Heaven.
Mr Finch.] This Bill is for the security of the Protestant Religion, and though this will not totally do it, yet it will go a good way towards it. The Popish Lords and Papists abroad are against it, and therefore he is for it. He thinks it strange, that so many Gentlemen, eminent for the profession of the Protestant Religion, should concur with the Papists against this Bill; but they apprehend encroachments on Royal Prerogative. This is not a total deprivation of the King's disposing of Ecclesiastical Promotions; but what he may take off when he pleases. It exercises his Prerogative still, though not in his person, yet in his Ministers, the Clergy—Non dominus rex nisi per judiciarios suos —Not in the Crown. If a Lay Patron present a Clerk to a benefice, he is to be instituted and inducted by the Bishop, and if the Bishop does refuse, the LayPatron may bring his quare impedit, and this takes not away property. But 'tis said, "Why is not this power given to the Judges as well as the Bishops?" Transire a genere ad genus is the first time he heard was good logick—But you are safe, for the Lord Chancellor may present, and the Bishops and he, by the last Law, are under a Test, and you are secure of them. The safety of the Protestant Religion depends on the fountain—That that is pure, you are told. "Suppose the King be a Papist, &c." that is an argument for the Bill, that the King may not take those Bishops imposed on him by the Pope.
Serjeant Maynard.] Some things in the Bill may be mended, but the general end of the Bill is, to keep us a Protestant Clergy. No man can withstand that. But, to throw out the Bill for what he has heard, amazes him to hear it. We must not think ourselves secured against all accidents of Popery, if we may not suppose a change. There is no mention in scripture, but where a true King, true Religion. It is said, "This changes the King's Prerogative." If it should fall out to manacle the King's Prerogative, we shall not, and the King may not, be short-sighted in that, before he passes it. Whence comes this fear now, not thought of before? Mention is made of "this being like pricking of Sheriffs." That is a great mistake; for Sheriffs were formerly chosen by the Counties and Coroner; and the Counties must pay for his default: But now, to ease the Counties of that charge, the King nominates him. In most Bills the King's Prerogative is shortened in some measure or other. This Bill may be corrected if it does. Formerly, whenever there was a weak Pope, we were strong—One King of England wrote to the Pope, "That if he did it, the Lords and Commons would not obey nor agree to it." The King may make Bishops, and take off these ceremonial ways of doing it from Rome. As for rejecting the Bill, if there be a general fear in the Nation, you must not despise these fears—He is confident there are these fears. He confesses, he does not understand entirely what the Bill is; but he believes it done in the Lords House upon great reason. When so much is said, for the generality, for the safety of Religion, let us show ourselves zealous to preserve the Protestant Clergy amongst us. Let it never be said, that a Protestant Parliament threw out this Bill.
Lord Cavendish.] Prerogative is the greatest in France, and H. IV. of France was forced to fight for his Crown ten years: And at the end, had he not been a Catholic, he had never had it. And after he changed his Religion, he struggled for it some time. He sees no reason why the nomination of Bishops should be in Bishops only, nor sufficient for Education of the King's Children. He would sooner lay aside this Bill, and make one for prevention of Popish Clergy, and securing the Protestant; and the House to go into a Grand Committee for that purpose.
Mr Hale.] Though H. IV. of France was opposed, yet it was by none but Rebels. He will not foresee what may happen to England. But if ever we shall be so unhappy as to have a Popish Prince, we must have recourse to our prayers, and not contend with the Crown for Religion's sake. He hears it said, and he wonders at it, "That Gentlemen that are against Popery, should be against this Bill." But he is against Popery because he is against this Bill, which is like empty casks for whales to play with, and rattles for children to keep them quiet. If any thing could be done by this Bill for preventing what is feared, he should not be against it; but no effect can be of it— He sees nothing in it to keep the Bishops from being Papists, and every Lay-patron may present to a benefice not withstanding, for all this Bill, and they that preach, will make the people dance after their pipe. The children must be brought up under the Arch-Bishops of Canterbury and York, and the Bishop of Durham, from ten years to fourteen, from the time they speak, to the time they begin to think. An empty thing! And he would throw the Bill out.
Sir Thomas Littleton.] He fears that in this business we shall rather promote than hinder Popery. We have had a sort of Clergy, ever since Arch-Bishop Laud's time, too much addicted to Popery. ArchBishop Laud professed, "That it was the best way for us to unite with the Papists;" and this was his whole endeavour—And men of that leaven are still in the Church, and he thinks them very dangerous that byass that way, There is a Book lately printed, (said to be Dr Floyd's) which grants you not "That all downright Papists should have toleration," but leans that way—If we establish this power in the Bishops, that this Bill imports, the Crown and they may make a bargain. They love dominion, and if they may have it, they may gratify their Prince another way. If he establishes them in power, they have something in this Bill to give him. He is apt to fear, that the Protestant Religion will not be maintained by these sort of men. He is for the Church of England more than these sort of men. 'Tis said, "The Popish Lords were all against this Bill," which is but a report. But he is informed, there was no appearing against it by them, till the last reading of it to pass it, and that is not a way to hinder a Bill; it was only to make a show, and not in earnest. He would not have you deceive the Nation and the Crown too; and is not for this Bill.
Sir Edward Dering.] He hears it said, "That many Bishops now, ever since Arch-Bishop Laud's time, are addicted to Popery." The Clergy are as orthodox now, as at any time before—It is said, "The Bill invades the Prerogative." No Bill but either takes from the Prerogative or the Privilege of the subject—If the King pass not this Bill now, 'tis a Question whether we shall ever have a Bill of this nature again—This does not contradict nor slacken any Bills of Popery we have already before us—When we find so much sense of Popery in the upper House, we should the rather concur; especially when we would worship the God of our fathers; and he would have a second reading of the Bill.
Sir Thomas Littleton.] He wonders what ground the Speaker had for confirming Dering, that he said, "The generality of the Clergy were addicted to Popery." There is a book in print, in King James's time, that of Laud against Vossius, that can testify what he says; and King James and Queen Elizabeth were for keeping a good correspondence with the foreign reformed Churches. But in his time, there has been another way practised, which Dr Heylin sets out in print— Whoever are upon that leaven, he dares not trust the conservation of Religion in those mens hands—What he said was not generally of the Bishops—God forbid! —He hopes they are not. But some there are. That this has been the method in the Church, he would not have said, but for Dr Floyd's last book (he is said to be the author) and this has been the general method of late times.
Col. Birch.] He will make no addition to what has been said, but an observation. As this Bill is now penned, he has not heard one man show any safety in it. But as to putting things in it, if of the same nature, he is against it. He would have any man find five Presbyterian Ministers that signed any engagement in the late usurpation, and he will show fifty, on the other side, that did—This is presented for safety of Religion; but if he had a mind to bring in a new thing, he would lay the people asleep, and say, "Our Church is secure, trouble not yourselves;" and this is an easy way for Popery to come in upon us. His opinion is, that when this Bill is passed, the King is not safe. Nothing can stand against a Popish design when ripe. All disorders are in this Bill, and it lays us asleep till exercised. But if to secure yourselves, he will tell you how—Be secure of a free House of Commons to come here, and never fear Popery—And are half of the Excise and Customs, grant them but from six months to six months, and your work is done for Popery. If we should have a Popish Prince It may be toleration for himself; but, in this way, never fear Popery.
Sir John Ernly.] Birch tells you, "If any will show five Presbyterian Ministers that took any engagement, &c. he will show fifty, on the other side, that did." But he would have Birch consider, when General Monk came up to London, how many of them signed for the Government by a single person. If the Lords had sent you down but a blank to secure you from Popery, would you have rejected it? He is for a second reading.
Col. Birch.] As to that point of "The King, when General Monk came in,"—where you find one of them that will submit to the Government with out a King, he will find fifty that did; and for a free chosen Parliament, if the King should die.
[The Bill was ordered to be read a second time.]