Grey's Debates of the House of Commons: Volume 9. Originally published by T. Becket and P. A. De Hondt, London, 1769.
This free content was digitised by double rekeying. All rights reserved.
Saturday, April 6.
A Bill of Treason, &c. from the Lords, was read the first time (fn. 1).
Sir Joseph Tredenham.] I am against this Bill as unnecessary, and of dangerous consequence. The 25th of Edward III, the declaratory Law of Treason in full Parliament, is in full force. Does not this Bill lay a sort of imputation upon us, and give opportunity to a libeller to say, "that the ancient Laws are not sufficient for the present Constitution of the Government, without making new? (The Title of the Lords Bill was, "for regulating constructions upon the Statutes of Treasons, and Tryals, and proceeding on Writs of Error in cases of Treasons.") When you pass a Bill like this, to make it Treason to aid and assist those that consult against the Government, I may be censurable for other mens Treasons, which, from my heart, I utterly abhor. The matter of fact must be fully proved, to do it "knowingly and maliciously:" These Words are generally taken for granted. I am apt to believe, if any Gentleman should have the misfortune to be tried by this Act, "that knowingly he did aid and assist Conspirators against the Government," he may be answered, as it was on another occasion, "that the words are put as pepper and vinegar, only sauce, &c." I would know the meaning of these words "adhering, &c." more than the declaratory Statute of Edward III. Is it intended by this "adhering, &c. that the Bishops and the Clergy, that have not taken these Oaths, that this obstinacy shall be an argument, if not an evidence, to be "adherents?" If that be the crime, you will make your number of criminals too many, if to correspond with the Bishops be "adhering to the King's enemies." 'Tis taken for granted, that the Judges will be interpreters of your Law; and shall it be judged what "adherence" is "to the King's enemies" by the Judges? This makes Mutiny in the Army, Treason. This is an extraordiny Clause, and I remember not the like. Mutinies have often risen from innocent occasions. How are we certain that, if our Debates here are misrepresented abroad, it may occasion disorder, and, by an Innuendo, destroy freedom of Debates? You have a Bill already passed to quiet disorders in the Army, and the necessity of affairs required Martial Law for some time, though it was ever contrary to the genius of our ancestors. This Bill puts people under greater severities than Martial Law, which makes no Attainder upon offenders executed. The next thing is, that it makes it Treason to withdraw a Mariner or Seaman from his service. If it should happen that a man advise his friend or son, (or be a guardian to a person) to another course of life than the sea-service, he shall be within the Penalty of this Act. We have thought it necessary to impose a Tax upon the people, and I believe we must have more, and commonly some new franchises or privileges were anciently granted with Taxes; but this multiplying of Treasons will prove of fatal consequence. The weight of the people, in the late Revolution, was of great consequence. I desire to be satisfied with the Laws as they are, which are sufficient for the security of the Nation, without new Laws; and I am against this Bill.
Colonel Tipping.] As this Bill is penned, I think no Member in the House will be for it. To declare or proclaim King James is Treason. I have been always against making words Treason; for passion, or a man in drink, or a mistake of a word, may put our lives into our servants hands, who may swear Treason against us. Certainly, you must have a Proviso for the Protestants in Ireland, who have been compelled to own King James. But it is necessary to make promoting King James's title to be Treason, for as the Law now stands, it is not Treason. Therefore I would commit the Bill to mend it.
Mr Pelham.] As I think the present King has as much interest in the Crown in Law as any other King had, therefore I think it is wholly against this King. It is impossible to mend it. We are Representatives of the Commons of England, and must take care of them; therefore I move to throw the Bill out.
Mr Hampden.] This thing of constructive Treason was set on foot in King Charles II's time. If there were not overt Acts, yet it was construed to be Treason. This was not only extrajudicial Treason, but some you have restored in Blood this Parliament, who lost their lives for it (fn. 2), by words from one witness, and a pretended writing found in Mr Sidney's closet, and many other abuses; but this has been the highest offence. That to be judged Treason, which was not so by Law, was wisely provided by the 25th of Edward III, to be judged in Parliament—But then, in some cases, this House thought fit to go farther than the 25th of Edward III, and made it Treason to consult levying War, and nobody complained of it, because it was according to Law. The case of Habeas Corpus—Next to your Lives, nothing is dearer to you than your Liberties; and yet you have thought fit to suspend that Law, and nobody can complain of it, because done by Law. The occasion of that Statute of Charles II was, there was no Rebellion against that King, when that Statute was made, but to show your dearness to that King. If you do not support the Government in a more than extraordinary road, in this extraordinary change, you may ruin it. I believe, the Lords, when they passed this Bill, had that of Charles II in their eye. Perhaps common People may think you will not punish offenders of this kind, if you reject this Bill.
Sir William Williams.] You are, by this Bill, creating a new Treason. When the Statute 25 Edward III was made, all new declared Treasons were deemed as pernicious. In the 1st of Mary, you will find as good Laws in her Reign, as any other, which reduces all Treasons to their first standard—The thing left indefinite. Should you enact this Treason, who can be safe in more than one companion? What an earthquake will this make! We are now a divided people. There is a malignity and ferment in the Nation; and now you say, you will make a Law to hang one another, to execute a malicious man's revenge; and let our enemies divide the people by animosities, to ruin them; by this Bill, two ill men may destroy one hundred good. Carry but two witnesses from Berwick to Dover, and you may destroy the Nation. If I may speak with modesty, I think the Lords have not considered it, before they sent it us. I look on it as an indigested thing. Look upon declarations to the King, as principles to proceed upon. You declare, by this, the Statute of Edward III in vain; and shall you, in the beginning of a Reign, destroy that Law? Shall we undermine that great security of the subject? Shall we weaken that security? And can we think ourselves wise? And all this because of an imagination of conspiracies. The Statute 25 Edward III is a manifest Law; "adhering to the King's Enemies, in or out of the Kingdom, is Treason." What need of this? You have declared that King James is an Enemy to the Kingdom, and adhering to him is Treason. You have abdicated him. To say, that King Charles II was a Papist, was Treason, and one James, a Nonconformist Preacher, was tried by that Statute; it was on a Conventicle information by two soldiers. The men were asked, if they could remember any one sentence he said besides?—The man was found guilty. Experimented Laws are best. This is a new one. I move to throw it out.
Sir Thomas Clarges.] I desire the Bill may be rejected. The reason of the Law of Edward III was, because, before, Treason was so loose, there could be no commerce with mankind with safety: Therefore that good King (as Lord Coke calls him) made that Law. There were good Judges then, and in Queen Mery's time, when she came to the Crown; and perhaps there was great reason, if she followed the humour of those about her, to make use of constructive Treason; but she was advised, for the quiet of her Government, to reduce all Treasons to the Standard of 25 Edward III, and to repeal all new Treasons. I would know if any Treason is not provided against already by the Statute of Edward III. To betray Forts and Castles, to be aiding or assisting to the King's enemies, to deliver up his Vessels—By Martial Law, in Charles II's time, it was death to deliver up any Vessels, &c. If you pass this Bill, instead of avoiding constructive Treason, you will put this into the power of the Judges. This Bill has eight constructive Treasons: Mutiny is Treason, by this Bill. If the Officer be sick and weak, and desires to deliver up his Commission, it is Treason, &c. I wonder this Bill should come from the Lords, whilst the Judges are there to advise them. It will not be for their honour to posterity. This is the first experiment of these Judges, to let this Bill pass silently, to the very destruction of our Laws. There are some securities, at the latter end of the Bill, for our Tryals; but there is provision for that already. If I did not think there was sufficient provision already against these Treasons, I would never move against the Bill.
Col. Birch.] Considering our present circumstances, before you throw out the Bill, I would consider them. Go where you will, you see rebellious Pamphlets; and, if you will believe our Letters, the People are so emboldened, that they profess service to King James.—It is said, "Companions cannot go drink together, without danger of their lives, if this Bill pass." When it was informed against me, out of my own buttery, that I said, "The King was a Papist," the Informer had not so much wit as malice; and I came off. Nothing is more mischievous than to throw out this Bill. We are here by the King's Authority, and I would willingly have this Bill, or something else. If you throw out the Bill, they will do their work with impunity. If this were to be a lasting thing, it were another matter. It is said, "The Statute 25 Edward III makes full provision for all things in this Bill, and we need no more."—I have heard it often said here, how dangerous it is to make new Treasons! But if these things, that we are informed of, be true, then make the Bill for two years, or one; but pray throw it not out. If all this be already provided in the Statute of the 25th of Edward III, pray read that Statute.
Mr Sacheverell.] I think there is not one good Clause in this Bill. As for making words Treason, you have had fatal consequences of that. You are told, by Clarges, the use and original of that Statute of Edward III. The case was, the Judges then had done as ours have lately. They have executed it, upon a civil construction, on a Clergyman at Lincoln: To avoid that for the future, you advise the King, (and reads part of the Instrument) inter alia, "That provision may be made, by new Laws, for the safety of the Government." Therefore I think it may be of ill consequence to throw this Bill out, and not bring in another. Therefore I hope you will order another Bill, though this is not for your sense.
Mr Ettrick.] There is no danger in throwing out this Bill. I am as willing as any man, that they should suffer as Traytors, who offend against this Bill; but if we leave things open thus, it may be of dangerous consequence; it looks like a conveying away a man's life with his estate. In heats of the Government, Treasons have been made. In Henry IV's time, things were well settled; a man could not know, in Henry VIII's time, what to say, there were so many Treasons, and in Edward VI's time; but those were repealed by Queen Mary. It caused compassion in Englishmen, when they saw so many mens quarters hanged up upon the Western roads; and it was so far from quieting the Government, that it inflamed mens minds. That this Bill should pass the Lords, no wonder; but to come from the Commons, who are to take particular care to make no constructive Treasons!— We have been free with the Commons for their Liberties, in parting with the Habeas Corpus, &c. But to hazard their lives, and put them into hands of malicious people, to take away their lives, we cannot answer it.
Serjeant Maynard.] We were told, in the Parliament of the late King James, of the words of our Saviour, that were testified against him, about destroying the Temple, and raising it in three days—People are so uncertain in their memories, that where men make a set of words to swear by, they are not easily disproved. This will prove rather a Bill of Exile, or Banishment, than a security to the Government. They will go beyond sea for security, rather than be here: There will be such a distrust amongst men, that they will rather live in caves and deserts, than converse with one another— (The rest the Compiler could not hear.)
Mr Hales.] I remember what work was made before the Statute 25 Edward III. It is an improper time now; though we have very good Judges, yet some have got upon the Bench that have been perverse interpreters of that Statute; and Counsel, who have advised and prosecuted, have crept within the Bar. I do dislike that Clause, of "Freeholders to be of the Jury," and "the Party indicted to have a Copy of the Pannel;" as if it were not the right of the prisoner before. Something of poison lies concealed in this Bill, and I would reject it.
Sir William Williams.] If this Bill be rejected, you cannot bring in another of the same nature this Session; but you may have a Bill "for the more effectual Explanation of the Statute 25 Edward III." This is a Bill, from the Crown, to enlarge Treason. We are here for the security of the Subject; and this is no security for neither Crown nor Subject; and I would reject it.
Sir Christopher Musgrave.] This Bill puts the construction of Treason into the Judges; and therefore you may bring in a Bill, pursuant to your Vote of February last.
The Bill was rejected.
[April 8, 9, (fn. 3) 12, 13, 15, 16, 17, and 18 omitted.]
Friday, April 19.
Debate on the Lords Amendments of the Bill for abrogating the Oaths of Supremacy and Allegiance, and appointing other Oaths.
On the Clause for exempting the Bishops, &c.
Sir John Thompson.] This Amendment of the King's tendering the Bishops the Oaths, &c. brings all the odium upon the King, as if the King suspected their loyalty to whom he causes it to be tendered.
Sir Thomas Dyke.] The odium will be on the Council, and not on the King. All Acts of Grace are from the King, and he must be advised by his Council; and they must suspect the persons, and not the King.
Mr Ettrick.] If the King see them dangerous, he may immediately offer the Oath, &c. to them; and that is the effect of the Lords Amendment.
Sir Thomas Lee.] Pray make us well understand this Amendment. The consequence does not differ from the Lords, "That it may be tendered before the first of August." But I would know how these stand together; whether agreeing with one Amendment does not draw the consequence of asserting the future Clauses?
The Speaker.] If the King issues out a special Order, before the first of August, for taking the Oath, &c. they are obliged to take it before that time.
Mr Sacheverell.] This seems to me to be a snare. If any sort of Gentlemen, be they who they will, may pay no Allegiance to the King, I am against it. (Reads that part.) Your Bill, as it is penned, is to enjoin all persons to take the Oaths; and this Amendment provides, "That if an Order of the Council, by Commission from the King, &c."— This cannot be a riding Commission, all England over, to give the Oaths; then if it be not a separate Commission, which must have time of return— and then these persons go out of the County, and so are free from taking the Oaths for ever—"By Order of Council"—They will have time to shelter themselves, under the King's name, which ought not to be countenanced. No person shall be concerned in it, but so far as the Council shall advise; and then it is in their power, whether to execute your Act, or not. So, unless some reason be assigned, why the King should suspect, all cannot be thought so; and if for particular persons only, your Act is illusory.
Mr Carter.] All the subjects of England are under one King; and there is but one Allegiance, according to our Law. It was suggested here, "That the Bishops had taken an Oath to King James, and therefore their consciences would not bear it to swear to King William;" and I think that the strongest reason why it should be tendered them. We must not set two Heads on one Church, and divide the Bishops. Some have taken it, and some not; and as to the Government, we have taken it; how can we be true to the King, if all do not! We have done it, and they ought to do it. Some are to leave their Offices on refusal—These men have six months time given them by the Lords Amendments—The consequence will be, we throw dirt in our own faces, by doing it; as we are obliged to it, so I hope all else shall be obliged. A Popish Head was thought not safe for the Government; it will be a greater monster to set up two Heads of the Government. Consider how unkind this will be to the King. He swears to us, in his CoronationOath; and shall they not pay their Allegiance to the King? I would retain what we did before in the Bill.
Sir Joseph Tredenham.] Carter is much mistaken in the Question; it not being, whether the Clergy shall take the Oath, or not: If it were so, I should be of Carter's opinion; it is only, whether you will agree with the Lords Amendments? It is only, whether there shall be a Trust in the Royal Dignity, or no? And a Question only, that the King shall have power to require the Clergy to give a testimony of their Loyalty. If any of the Clergy own any other Power, that it may be in the King's power to make Tryal of them. You are told, "This will put a hardship upon the King." If Trust be a hardship, the Crown is a hardship. The severity is not in the Crown, but in you. Perhaps, in another Reign, it may not be safe to lodge this Power in the Crown; it is safe now: And I would agree to the Lords Amendment.
Mr Howe.] By what I find, by his Motion, the stress lies in the Commission: That Clause is not to impower the King to dispense totally with the Oath, but to tender it before the time. The bait seems to be, putting power into the King; but I am not for either giving the King new Power, or taking any from him. I cannot think but all should take the Oath; and how can they offer Oaths to others, which they will not take themselves! And they so tender, that none but themselves shall be dispensed with. It is no hardship for a man to be put out of an Office, if he be not capable of it. If they will not swear Allegiance to this King, they owe it to another; therefore I would have no power left to bring in King James.
Sir Thomas Littleton.] I differ from Tredenham: It is not such a great Trust—It might, by his argument, have as well been inferred, that the King should give it to all his subjects, if the Bishops, in this case, were not tenderly used—In nine months, King James will either be here, or never; and therefore I am against the Amendment.
Mr Finch.] Notwithstanding the reasons I have heard against the Amendment, some of them ought not to have regard here. Now you make a new Law, the Question is, how you will extend that new Law?. All persons in Office must take these Oaths; the Amendment is not to excuse them from the Oaths, but a Commission from the King to give these Oaths sooner, if he please, Disagreeing with the Lords is to oblige all men, within that time, without distinction, to take them. In the year 1649, when the Engagement was enacted, none were obliged to take it but those of the Clergy, who were hereafter to come into Livings. You are told, "In that time, King James will be here, or not expected." I hope you will not imagine, that these persons have any expectation of King James, or that they have any worldly consideration; they are not fond of it, and have sufficiently suffered for it. If you are not secure without this, consider whether the punishment's falling upon some persons will make you more secure.
Sir Thomas Lee.] I am surprized that Gentlemen are so much for the Prerogative of the King—You are making a new Law; and it is but compounding for a new one; and before this change, I know, no subject was exempted from the Oath of Allegiance. This instance given you (by Finch) was of the Engagement in 1649. I remember the Dean of Christ-Church was in it, and was turned out for refusal of the Engagement; and those times did not think themselves secure—And now, if you think the Laity are only obliged to Allegiance, it is strange. I am sorry that Subjects should have more consideration for their Fellow-subjects than for the King. It is not so long since some would have King William's name only in the Regency, and King James to stand King. The Bishops may say, this is for the good of the Church, that they should have liberty to sit in the Lords House, but not take the Oaths, thinking themselvesobliged, by their Oath, to King James. Therefore I would not agree to the Amendments.
Sir William Williams.] How can you make this Law equal? You put it in the power of the King; if he order it not, they shall not take it; and if all persons may by under the same qualifications, your Law then is equal. The consequence must proceed from Principle, or Humour; if from Principle, it must proceed from other Oaths that they have taken; and it is part of your security, that the old Oaths be abolished; and what can resist an Act of Parliament? Shadows follow bodies; can you absolve me of my Oath of Allegiance and Supremacy? The same Power that created those, has abolished them. But the Bishops say otherwise; they are so strait-laced, and straitly bound, by their Allegiance to King James, that this Act cannot absolve them. By this dispensation of the Clergy, instead of uniting the People, you separate them. I am for all persons to take the Oaths, and no encouragement given to any to separate from the rest of the Nation.
Sir Robert Cotton.] The Question is now, in a new Government, whether we shall make Distinctions? I could wish all sorts of Clergy would take the Oaths. By this Commission, &c. the King may have such effectual security as may prevent any mischief that may ensue. I hear talked of a Regency, in King William, mentioned in favour of King James; but I cannot think that, when you have done all things that have made you irreconcileable to King James, you will think of calling him back again. But, at this time, to have any disagreement with the Lords would be fatal in the consequence. Therefore I would agree to the Amendments.
Mr Godolphin.] The Question is not, Whether the Oaths shall be taken, or no; but, Whether the King shall have Power, by Commission, to tender them, &c?—— We are running into Divisions here, to prevent Divisions in the Clergy. In Henry VIII's time, there were several Limitations of the Crown, and the Oaths were forward and backward. I would agree.
Mr Paul Foley.] The Lords have not only differed from us, but from themselves. This point has been twice settled in the House already; and I hope the Nobility of the Kingdom deserve favour and consideration, who have been turned out of their Places, as well as the Bishops. We ought to take care, that there be no persons in the Kingdom, but such as will submit to the Government.
Mr Boscawen.] I am suspecting my own understanding in Law, when Sawyer asserts a thing. I desire that the Statute of the Oath of Allegiance may be read.
Col. Birch.] The Statute ought to be read, when a Gentleman desires it; and it must, for it is part of his Speech. (It was read.)
Mr Boscawen.] It is apparent, by this Law, that there is no distinction betwixt Ecclesiastical persons and others. King James I came new from Scotland, and this Law was to make a Recognition of his Government. It is certain that some Scruples they make, either that they are obliged to the former King, or that this person is an Usurper; and, by consequence, you are no Parliament, he is no King. These are the plain consequences; and then, whether you will give this indulgence, or not? The Leaven will run through the whole Clergy. Upon consideration of the whole, I make this to be tripping up the heels of the whole Government. If the Clergy have obligation to King James, they are bound to assist him when opportunity shall serve; and when no opportunity, they are content to sit still, and when there is, they will tell you more. This is the effect of the Lords Amendment; and I would not agree.
A Committee was appointed to draw up Reasons, &c. to be offered at a Conference.
Saturday, April 20.
Sir George Treby reports, from the Committee, the Reasons for the Commons not agreeing with the Lords Amendments, which were agreed to by the House, and are as follows:
"1. Because it has been the policy of the Common Law, and Statute Law, to oblige men to swear to the King.
"2. Allegiance is the common and necessary duty of all Subjects, and is most strictly to be required of Archbishops, Bishops, and those who have Ecclesiastical Dignities, Benefices, or Promotions, in regard they are highly intrusted in the Administration of the Government, draw great dependencies, and are exemplary to the rest of the people; and several of them are, by Law, to administer the Oaths of Allegiance to other persons. Allegiance is also strictly to be required of all Governors, Professors, and Fellows in Universities, and School-masters, because to them the education of the youth of the Kingdom is committed; and therefore they ought to be Persons of known Loyalty and Affection to the Government.
"3. The taking the Oaths publickly, in open Court, will better manifest Allegiance, than the taking them privately, before persons appointed by Order in Council; and will be much more safe for the persons who are obliged to take the Oaths.
"4. The best and most certain means to have the Oaths taken, is to impose it upon the persons concerned to tender themselves to take the said Oaths under penalties; but if the Oaths are not to be required, unless tendered, the said persons might by absence, and otherwise, avoid the taking them with impunity.
"5. The Clause which the Commons sent to your Lordships, allows more favour to the Archbishops, or Bishops, and those that have Ecclesiastical Dignities, Benefices, or Promotions, than to any Lay Peers, or other persons having offices and employments; and is more gentle in the penalty than the Statutes heretofore made in like case.
"6. It is unreasonable and unsafe to distinguish the Archbishops, Bishops, and persons having Ecclesiastical Dignities, Benefices, or Promotions, and such as are intrusted with the education of youth, from the rest of the Subjects, in the Declaration of their Allegiance; and may tend to make a division in the Kingdom; and may raise and countenance Faction, both in Church and State.
"7. It may tend to expose the King's Person and Government to hatred and danger, and occasion a general discontent."
[A Conference was desired, where the above Reasons were delivered.]
Monday, April 22.
[A Conference was desired by the Lords.]
Sir Thomas Lee reports, from the Conference, the Lords Answer to the Commons Reasons; as follows:
"In Answer to the first and second Reasons alledged to the House of Commons, it is agreed, that the policy of the Law requires men to swear Allegiance, and that it is the common and necessary duty of all Subjects, and especially of the Clergy; but the Lords do not exempt them from taking these Oaths, but only differ with the House of Commons about the method by which they should be tendered.
"To the third Reason: If the Lords should agree, that it is better to tender the Oaths in open Court than privately, yet that is not a sufficient reason against the tendering them by persons appointed by the King in Council; because the Officers and Judges of the Court may be so appointed, by virtue of the Clause offered by the Lords; or if it be not clearly enough expressed, it may be inserted more explicitly.
"To the fourth: The Clergy will be required to take the Oaths, by such Order in Council as is proposed by the Lords, and their not appearing, when so summoned, will amount to a refusal; or if it should not, the Lords would agree to any such addition as would make it so.
"To the other Reasons: The Clergy and the Members of the University were not distinguished from the Laity, because, upon all promotions to any Degree or Preferment, they will be, equally with others, obliged to take the Oaths; and even those that are already in such stations, will be obliged to take the Oaths when required by Order in Council: And it seems to conduce more to the settlement and safety of the Government, that the King should be impowered to put the fidelity of the Clergy to a tryal immediately, than to leave any who are ill-affected to the Government so much time as to the first of August, to be all that while undermining it.
"The Clergy are obliged, by the Prayers which they must read, in the daily service, but most particularly in the Communion service (fn. 4), to make such express and solemn Declarations of their fidelity to the King and Queen by name, that the putting them to take the Oaths is not so necessary to the public safety as in other persons, who are not bound to make such frequent declarations of their sidelity.
"In so critical a time as the present is, it is not to be doubted, but, upon any case of apprehending their ill affections to the Government, the tendering the Oaths, by Order of Council, will not only take off all imputation of hardship from his Majesty, but justify, and even require a more rigorous way of proceeding against those that shall give any cause of offence:
"Since, during Queen Elizabeth's long and glorious reign, in which she had both the pretended Title of the Queen of Scots, and the deposing power assumed by the Popes, to apprehend, this was found to be the safest way for the public quiet; and the ill effects of leaving the tendering the Oaths to the Queen's discretion not having appeared in all that time of so much danger, and so many Conspiracies against her person, the following a pattern taken from the best part of our History seems more suitable to the present times, than the falling on other methods; which the Lords think a convenient Answer to the last Reason given by the House of Commons."
Debate on the above Answer.
Sir Henry Goodrick.] I see it evidently here, by the Lords Paper, that a dispensing Power is asserted; a Power in the King and Council to exempt a part of the People from their Allegiance; no doubt, any thing shall be granted, if you will give this Power of dispensing with this Law. What have these men done to merit this exemption? If your Clergy had not Curates, and if there were no Pluralities; if obliged to keep conformable Curate, the Curate will pray for King William, but the Parson is gone, and you cannot punish him; and there is your dispensing Power. Consider the difference of times; in Queen Elizabeth's time, there was but just a new settlement of the Protestant Religion; half her Kingdom then were Papists; things (God be thanked!) are now so changed, that we are entirely Protestants, if we can keep ourselves so. All this is no more than granting a Power to the King and Council, to dispense with all the Statutes.
Mr Howe.] I have heard nothing to the contrary from the Lords Answer; and I think that all are obliged to take the Oaths. I believe this Power is asked by the Lords, without consent of the King. The Council is not infallible, nor, I believe, ever will, unless you put a Penalty upon the Council for not executing this Law. They agree to the necessity of the Oaths; yet, it seems, they give a Reason why not; as if Prayers for the King and Queen, in the Litany, was as much as taking the Oath of Allegiance. They pray "for all Christian Kings and Queens." I cannot, with a safe conscience, pray for King James; and if they will pray for them that they owe no Allegiance to, I desire not their Prayers. That of a shorter day, I believe, is a Reason out of the strong Box. The Precedent of Queen Elizabeth is not for us to follow. They who will side with those who will not pay Allegiance to King William, will not stick to promote the Title of King James. We have Reports of Conspiracies, and they are from those that are Enemies; and those that will not swear, will help to bring in King James.
Sir Robert Howard.] The Lords sent a Bill first—Be pleased to observe one thing; the Lords sent down great instructions in it, and one thing of extraordinary use. Those that take not these Oaths, are underminers of the Government; and then, by their Amendments of our Bill, to countenance the not taking them, is to me a contradiction. A Penalty on the King, for not tendering the Oaths, would be too high a thing for us to impose; but to put the King to believe he has some that are not good Subjects, (as the Lords put the King upon that opinion) and that, upon their Leaders scruple, they are not free to the Allegiance, is a kind of Sermon from them against the Allegiance, and a Doctrine practised by us. They are underminers of the Allegiance, that make it less sure to oblige them. An Oath (which they scruple) is an end of all Controversy; this is as if some would be in that Controversy, and not take the Oath. The instance the Lords give of Queen Elizabeth, is a very wild Precedent. The Lords have given you no manner of Reason why you should comply with their Amendments—And, to put the King to believe, that his Subjects are not part of his Subjects.
Col. Birch.] I believe there is more in these Reasons, that we see not, than we see. If we are not exceedingly well armed for a Conference, which will go about the Nation, we shall be injured.
[The Lords Answer was disagreed to, and a free Conference was desired.]
At the free Conference. The Earl of Nottingham managed for the Lords.
Sir George Treby.] The Difference of the House of Commons, &c. is great; but not so great, when the matter is understood. The Commons tender an Amendment, &c. requiring the Bishops to take the Oaths, &c. Your Lordships, instead of that Clause, appoint the Oaths to be taken before persons, by Order of the Council; to which the Commons cannot agree, and have sent to your Lordships for this Conference, to make their Reasons more intelligible. Your Lordships admit the Oaths to be taken, &c. and sooner than the time, &c. No Question is, or can be, but our Allegiance is due to the King and Queen. At the last great free Con ference, your Lordships alleged, the Throne was filled, and no Allegiance—But the Throne being now filled, we have now to think how to oblige those persons, by sacred ties, to the King and Queen. It falls out, that the persons chiefly concerned in this are the Clergy. The strength of all Government is unity and uniformity in Allegiance; and he is no farther a Subject but as he owes Allegiance to his Prince. The wisdom of the Common Law requires early Allegiance in Court-Leets. Afterwards, when affections were aliened from the Prince to foreign Powers, there was something to strengthen that by a Statute. This Allegiance has been oppugned by some persons, and we hope it will be confirmed by your Lordships Concurrence. We follow all the methods of that Statute—Your Lordships answer, "It is better the Oaths be tendered openly than privately."—To which we answer, That the Judges cannot, by Order of Council, authorise giving the Oaths by authority of Council judicially—Your Lordships say, "the not taking them, within the time limited, shall amount to a refusal."— Whether a man have reasonable cause to be absent, is a matter of contest——To the other Amendments: The Commons desire present Security for the Government; a present Security is necessary against undermining the Government; and if the Oaths are to be administered by Order of Council, persons may conceal themselves. If the time limited be too short, the Commons will close with your Lordships for longer. Your Lordships say, "If the person be thought ill-affected, the Oath may be tendered sooner;" but those ill-affected persons may be infecting the rest: And the Council ought to secure all men from malevolence of the Crown—We answer to that of the Statute of Queen Elizabeth; What your Lordships refer to is the Oath of Supremacy. There was a distinction between those that owned the Supremacy, and those that did not; and that can be no parallel to our case. To live religiously and happily, is well; but we must first live. This Oath is our being.
Earl of Nottingham.] We agree the necessity of all Duty and Allegiance, by all persons, to be paid to the King; the difference is in a very narrow compass; we only differ in the method. I shall not repeat the Lords Reasons, only in answer to Treby, there is no other method left to oblige them to take the Oaths sooner than this proposed by the Lords, before the first of August. —I differ from Treby about the Oath of Allegiance and Supremacy; they that would deny Queen Elizabeth's Supremacy, did assert the powers of deposing and excommunicating her to be exercised as much as the Pope could do; and the Oaths of Allegiance and Supremacy were as necessary to be taken then, as this is now. And therefore the Lords take so good a pattern now, as that, which was so successful and happy then.
Sir George Treby.] The comparison was made only in respect of the Places they should forfeit. I did say, "yet the Judges could not do it judicially," which makes it part of the Authority of the Judges; they must give the Oath privately; not as Judges, but as persons nominated by the King in an afternoon, or in any other place than the Court. There is a distinction between the two Oaths made by the Books—
Sir William Williams.] The Question will be no more than, Whether the Oaths shall be administered in public, or in private. In Court it will be a Record; it rests from whence this distinction must proceed. The conscientious men, in this case, are the dangerous men; these handsare but the tools which are set on work, and there are no means to discover these but by Oaths. There is more reason to impose them on the Clergy than on other men, because they have a greater tenderness in taking them, from some secret reason. The Oaths, in Queen Elizabeth's time, were more to distinguish Protestant from Papist; that Law was made for the illness of those times. If in King James's time there had been one method for the Commons, and another for the Clergy, there were some ground for this now; but there was one method for both then; one form both for Allegiance and Supremacy, of the same nature. I agree, your Lordships method is the soonest way, but it is more certain and plain when it is known. It looks to us, as if there was a little tenderness to the Bishops, and as if a power in the King to order the taking or not taking the Oaths. I deny not but a Parliament may do any thing; but this looks like a case of binding the Laity one way, and the Clergy another.
Bishop of Salisbury (fn. 5), Dr Burnet.] The whole danger of the Government may lie upon this—If some say the King is an Usurper, he is within the Statute of Treason—All the Clergy, in the Common Prayer, pray for King William and Queen Mary. In the Communion service there is a protestation of fidelity; if they omit that Prayer, they are punishable; by the Act of Uniformity they are tied to it. Can it be imagined, that the Clergy will so solemnly pray thus, and not obey the King and Queen? This is more than an Oath, which is but one single Act; this is done every day; they themselves pronounce the words in the Sacrament service.—As for the objection of taking it in open Court, a few words may provide against that—The Act of Supremacy was in Henry VIII's time. The first invention of it was not in Queen Elizabeth's, but qualifying it for Sir Thomas More, and Bishop Fisher—Then they sell under that Oath upon refusal. Though some of the Church of Rome have renounced the conspiracy of Mary Queen of Scots against Queen Elizabeth. We never should extend that power, when we consider, that men have speculations they cannot be rid of—This proceeds from such a supposition that may be speedily punished in attempting to overthrow the Government. Now, whether you will not leave this to the King? And there is no reason to suspect the Crown in its own safety. The eyes of all England are upon this matter— The Lords are of opinion they have made so much a better security to the Government than what you have made, that they hope you will agree with them.
Sir Henry Goodrick.] Since this makes a distinction to a few, it will be so much discouragement to this Law that it may weaken it. There are a sort of men that either will not pray for King William and Queen Mary, or [talk so] in common conversation, that their Parishes apprehend something ill for the Government lies hid in it. Discrimination in our Church is highly pernicious—Now when we comprehend Dissenters, and we leave so great latitude to the great lights, the Bishops, it may prove fatal. It is said, "the Clergy acknowlege the King and Queen, &c. in the Common Prayer." I answer, if it was not already scrupled—so few Dissenters from us—Therefore I hope you will not encourage them against the Lords and Commons of England. In Queen Elizabeth's time, the Nation was half Protestants and half Papists, and a prospect of a Popish Successor in Mary Queen of Scots—This will do no good unless to contribute to farther difference—Your Lordships may well accept this difference the Commons have made—Papists, for the most part, will take the Oaths of Allegiance, but not of Supremacy— Shall it be said that any of our great Bishops make use of Arguments of the Papists? In ancient time, there were such accounts of the Bishops foreign Allegiance, that there is a vast apprehension of such a precedent tye to King James, as the Court of Rome had formerly on the Bishops. I hope you will make this refusal Præmunire in the Clergy.
Sir Thomas Lee.] If your Lordships had so mended the Bill as to the case of Offices, as you have done in that of the Clergy, the Commons might have less objected. The great thing insisted on is Queen Elizabeth's time—The Clergy upon refusal of the Oaths, &c. were deprived immediately. The Commons have rather followed the Precedent of King James's time. It may fall out, that persons may be surprized, and it will be a great hardship that the Oath should be tendered to some, and not all, and no suspicion on particular persons. Were more noble Prelates in here with your Lordships, we should have less suspicion of any apprehending Allegiance to King James.—The height of danger to the Kingdom is in the highest station to the Kingdom.
Earl of Pembroke (fn. 6).] The sense of the giver is no more than obedience according to Law. Why may it not be expressed, "obedience according to Law? And they take it in the giver's sense, and leave it to the King.
Mr Somers.] Since all loyalty ought to be without distinction, if you will make that Law effectual, those who execute it themselves are the most effectual; they are obliged in interest to take it, or forfeit all. But if lest to others to tender it, many ways may be found to evade it, instead of having this Law take its full effect. It concerns the Government to know who the persons are, that doubt the owning the Government. This Oath was so framed by your Lordships with that great moderation, wherein there is nothing but plain promise of obedience.
Bishop of London, Dr Compton (fn. 7).] The Question seems, why it should not be in the power of the King, for the quiet of the Government, to tender these Oaths, &c. Forcing these Oaths will rather disturb mens passions, and make mens minds more uneasy.
Sir Henry Goodrick.] We find this is only a promissory Oath, and in the same form as that of Allegiance was formerly.
Bishop of Salisbury.] This makes no discrimination of persons designed. It is a notion in the world, that there is a great difference betwixt subjecting to a Government, and solemnly recognizing a Government, the design being only to secure the Government from danger.
Earl of Pembroke.] Nothing is so hard to judge of as Conscience, why he can do it, or not do it. The Clergy are men of Conscience, and have suffered, and persons may follow their example; you would not willingly see them starve. They are put under the power and care of the King, and do not turn them begging, for their Consciences, by Deprivation.
Sir Thomas Lee.] The King has opportunity to take care of the Clergy; but exempting them will be an encouragement to the Lay-men. There is no way to bring all England of a mind, but this.
Sir Henry Goodrich.] The Commons propose nothing but what was in the 7th of King James. Seeing your Lordships will exempt the Clergy from the Laity, it deserves farther consideration in the House of Commons.
Earl of Nottingham.] 'Tis not now, that the Lords make disstinction of persons. The Lords, in Queen Elizabeth's time, were exempted, &c. so considerable it was, for the quiet of the Nation, from the formality of the Oath they scrupled. If it be left to the King, the danger is not so great as represented.
[April 23, Omitted.]