Grey's Debates of the House of Commons: Volume 9. Originally published by T. Becket and P. A. De Hondt, London, 1769.
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Wednesday, May 15.
A Bill, from the Lords, for exempting their Majesties Protestant Dissenting Subjects from the penalties of certain Laws, and the Commons Bill for Liberty and Indulgence to Protestant Dissenters, were both read the second time.
Mr Hampden, jun.] You have read two Bills, that from the Lords, and that of ours; you always respect a Bill from the Lords, the Judges and Bishops being there present; you usually take that from the Lords. As for Indulgence to Dissenters, it is every man's sense, and little needs to be said to that. The Empire of Religion belongs to God; men may be forced and constrained, without other effect than to destroy the Country where it is done, and dip people in Blood. In what Country soever that is done, it has prospered accordingly. Look into Hungary, the divisions of that Country being desperate by persecutions; Tekely called in the Turk: I hear now the Emperor is willing to give some Indulgence to the Protestants there, which will preserve that Country. You see the number of Refugees that come hither out of France for Protection. The Dutch, our Allies, were at first ruined by severity in Religion, and the Spaniards lost Holland by it, but since they have had Indulgence, they have prospered, and so will they ever where the people live uneasy. In Charles II's time, the persecution of Dissenters made them leave the Land. I hope those that have need of it, have served this Government well, and may do so still. As to the Lords Proviso, of "none to have the benefit of this Indulgence, who deny the doctrine of the Trinity," I hope we shall never give encouragement to Atheism, and Infidelity. In the beginning of the Bill, there is a good orthodox representation of Faith; but, I am afraid, by obliging people to declare the abstruse points of coequality and consubstantiality, we may awaken what is asleep, the Socinian and Arian Controversy: I fear, if a Creed be brought in, though ever so orthodox, by such a Precedent, of making Creeds, in after-ages they may add new to disturb the World. In framing the Nicene Creed, there was great animosity; the Arian party got it, and then the orthodox, which disturbed the World; and then the Nicene Creed was made, and when it would not be received, the secular Arm was called in to defend it, and the burning them upon it gave the Precedent to all the Christian World, of burning Hereticks afterwards. Never was there such a thing, for a Parliament of Lay-men to make a Creed for subscribing of these persons. Never was a Precedent of such a thing before. I am against it.
Sir Thomas Clarges.] The Lords Bill is full of nonsense and tautology; possibly, vitium scriptoris; there are penalties in it not to the King, to nobody, John-a-Styles. Hampden is much mistaken in the Doctrines of the Creed; they are the very words taken out of the System of Cromwell's Parliament. This Creed is in express terms the second Article of the Church of England; Presbyterians, Independents, Quakers, all agree in it; only instead of the word of "God written," they would have "written by Divine Revelation." In the Lords Bill, "to subscribe to the Doctrine, &c. take the Oaths, subscribe the Test, &c."— Let the mistakes in sense be corrected, and I agree to have it passed entirely. But I observe this is a setting up Altar against Altar, therefore I would have it but a temporary Bill, that by persuasion they may come over to us; but we must pray and preach them down, as in my Parish there were four Conventicles, and now they all come to Church. I would have both the Bills committed.
Mr Sacheverell.] For committing both these Bills you have been moved well. In amending the Lords Bill, take out of yours what will be for your use, which will make that a good Bill.
[The last Bill was ordered to be committed.]
On Mr Papillon's Report from the Committee, upon the 300l. penalty, &c. for forfeitures.
Mr Boscawen.] 'Tis uncertain whether men have qualified themselves, or not; and some have not the Money to pay. You cannot be certain without an Account from the Clerk of the Peace.
Sir Christopher Musgrave.] At the Committee you did not impower them to be Chancellors of mens abilities. It cannot be that London, Middlesex, and Westminster, will not amount to above 200,000l. I know not else where you will find the Money, and the King will want it. 'Tis so palpable and gross, that no man can believe it.
Sir William Pulteney.] The House ordered the Committee to bring in names, to the intent the persons might be found to pay it. We, of the Committee, had no information of mens abilities; some are dead, and in others regulations are put in.
Mr Garroway.] The present necessity, and easing the Counties, put you upon this, as one way for the service of the King's present occasions. When you bring in a Bill, and put the proof upon them, that they have taken the Test, &c. then you will hit them off, and find them. You have made provision for half a year, and hereafter you may provide for the other six months; we may satisfy ourselves that we are out of danger for the present, and I hope a good Account will be brought in.
Mr Hampden.] I doubt we are too wide in the Account of these things, that you will have a good Account of from the Officers of the Excise. And it will be hard you will not let them plead the benefit of a Law.
[Resolved, That is the opinion of the Committee, That the forfeitures in the several Counties be estimated, and may produce 348,000l. wherein Bedford, Devon, Lincoln, and Cardigan, are not included, their Lists not being brought in.]
Thursday, May 16.
Debate on the Heads for a Bill of Indemnity resumed.
Grievances in King James's time were read.
Mr Harbord.] The greatest offender of all the Peers is turned Papist, Lord Salisbury.
Mr Boscawen.] According to this head, the capital offender is dead [Lord Chancellor Jeffreys] I would therefore have him attainted, and his Estate reduced to the same condition as when he began to offend, and his posterity incapable to sit in the Lords House.
Col. Birch.] That which lies heaviest upon the Nation, is Blood; you have several Bills to reverse Attainders. I would have some Blood, though little, rather than be stained with what they have shed.
Sir John Lowther.] I know not how far you will proceed, whether with all equally criminal. I suppose you will make distinction of those who gave opinion for the Dispensing Power, and other offences; how far you will proceed upon it I do not know, seeing you were tender in not taking away all Dispensing Power. They cannot all be punished, therefore say how many persons you will exempt.
Mr Harbord.] Begin with the Lord Chancellor. Attaint him first. I will say something to induce you to it. Sir Thomas Armstrong's was a most barbarous case (fn. 1), and his proceedings in the West (fn. 2).
Mr Palmes.] The last day, the Committee had order, "that crimes should precede persons." Determine what crimes shall be capital, and what mulctuary, before you begin.
Mr Boscawen.] 'Tis a harder matter to say what this man was not guilty of, than what he was. Lord Russel's Tryal before—and after he came into the West.—
Sir Robert Howard.] I think you have a particular engagement to go upon this man first. In Sir Thomas Armstrong's case he committed Murder, and without the help of a Jury. By the Statute of Edward VI. Outlawries were consined to twelve Months. He came in within that time, and surrendered himself in Court (fn. 3); though they alleged he was forced to it; therefore this is a particular case.
Mr Hawles.] Suppose you except a man that is dead, a dead man cannot be tried, nor pardoned. I think it proper to say, what persons ought to be excepted, and when you enquire, you will find the Chancellor very little more guilty, than those who lately passed the Proclamation, little less than the Dispensing Power.
Sir Richard Temple.] In the Ecclesiastical Commission he was the sine quâ non, and in all the business of the West. If you go on upon the thirty Heads, you will involve more than you intend. I move, "That the late Chancellor and his heirs may be excepted out of the Indemnity, in order to Attainder."
Major Wildman.] When I consider that the House spent four hours on crimes and persons, if you keep your own Order, you are not to meddle with persons now.
Mr Harbord.] I would except out of the pardon all who gave opinions with my Lord Chancellor, for the Dispensing Power.
Mr Garroway.] I think the Head of the Dispensing Power is what you can best make out. That is a Breach of their Oath, and a great one, and of that you have the judgment of the Lords and Commons, for breaking their Oaths. In this I care not how narrow; but as for mulcts upon them, I would not destroy families, but leave them a livelihood, and no more. For other offences, something may be said in Law, but not for this.
Sir Joseph Tredenham.] I cannot be persuaded that giving the King advice in the Dispensing Power be made capital. If we make the words general in the Question, that of so many persons equally guilty, some few should be given up for a sacrifice—I believe it first an invasion of our rights, but the exercise of it long became a common error; and; I think, if they are not guilty of some other offences, this is not sufficient. I move that the Question may be a little more distinct, and say, "as the Dispensing Power was of late executed."
Sir Henry Capel.] I never thought to have heard an argument within these walls for an universal Dispensing Power. We are slaves if it be so, and no freer than in Turky; We know the King has Prerogatives, but to say, "he has a Dispensing Power," is to say, "there is no Law." He says, "this Dispensing Power grew in upon us by time;" and is it therefore good because practised? The foundation of all our misfortunes is; That the Judges gave their Opinion for the Dispensing Power; and I would have them excepted in the Act of Indemnity.
Mr Hawles.] The Dispensing Power was the last Grievance, and a bloody sacrifice to the Prince's pleasure, to the subversion of the whole Government. The King might dispense with some obsolete Laws, but no Statute since two hundred and fifty years ago was dispensed with till these three or four years. If this must pass for doctrine, we may go home, and the King may raise what money he pleases, and he may dispense with the Statute de Tallagio non concedendo, and raise what Taxes he pleases. King Charles I would have been at it, and had Judges for this turn, who would have exercised this dispensing Power as well as the Ship-money. Some People King James put out of office, though qualified, and some were put in unqualified. They began with Dispensing with the Act for Hackney-coaches, and by degrees would have done so with all the Laws. I am for declaring this very illegal, though not all to be punished alike; for some did it out of weakness, others out of fear, and not out of the dictates of their judgment. As for the King's Counsel, if the Attorneys and Sollicitors, with tusted gowns, impose upon illiterate men, pardon the illiterate, and punish the learned Counsel: Just so do it; if other wise, you throw up all your Laws and Statutes.
Sir Robert Howard.] I would serve you with a Question, if I could. The Gentleman who spoke over the way, ever gives instruction; I am sure he does to me. This is the doctrine; because a Non obstante may be given man by man particularly, it should be used judicially. Forbidding Protestant books to be printed, and dispensing with Popish books, asserted and allowed. Here is a general execution armed against us; first by books, and then by public power. The Papists are armed against us.—When the Goths and Vandals over-ran Rome by an illiterate sort of men, Machiavel consesses there was a secret Providence. When these men over-ran us, comes the Prince of Orange and over-runs all accidents by his prudence, and saves us with deliverance from the Dispensing Power. But to wind up the Question of Dispensing Power, they have done all these things to destroy, and we must look upon those who have given this opinion in judicial places, as fit to be excepted in the Act of Indemnity.
Sir William Williams.] There are two parts of the Law, the constitutive part in King, Lords, and Commons, and the executive part, lex loquens, in the Judges. The other is a tacit Law, and a silent Law; they make the Law speak, and men feel it. Is any thing more pernicious than the Dispensing Power? There is an end of all the Legislative Power, gone and lost. Right your Legislative Power, and your Judicial Law, and all will be set right.
[To proceed on Saturday.]
Friday, May 17.
Mr Hampden, reports from the Committee, several Amendments made to the Bill of Indulgence.
Sir Henry Goodrick.] I move you to give no Indulgence to them, who will give no Oath in evidence, but their Yea and Nay, Quakers; now you are about to defend the Kingdom, and these men not to assist you, they may introduce Popery. Have we not known them in Jesuits habits, and were told it by Oates and Bedlowe? Under this mask, "according to the Holy Scripture," the (words in the Bill) you hazard the Government both of Church and State.
Mr Paul Foley.] This is much mistaken, that the Bill gives liberty to all persons. They are not at liberty. They must subscribe, and there is a Law in force already to tie them up from preaching against the Church of England; you are only tying them from teaching contrary to their Subscription.
Sir Tho. Littleton.] I am sorry to see some in the House differ from what they were at the Committee: In an incomprehensible part of Religion, we thought the Scriptures the best guide.
Mr Hampden, jun.] The Test is against the doctrine of Popery, which the Quakers take as you do, but to declare Allegiance to their Majesties is not named, because they own no titles. In France there was a Toleration to Protestant preachers, and they were not to preach against Popery, but they wrote against it, and so came within the penalty;
Sir Thomas Clarges.] The Gentleman Reporter forgets to tell you, that the Quakers said nothing of this at the Committee. "According to the Holy Scriptures," is a large field. They must not write nor speak against the doctrine of the Scripture; which will be full of controversy.
Col. Birch.] I will offer a few words, and beseech every Gentleman to consider that those ways are commonly the best, that are most trodden. These sort of people have been in the shambles these twenty years, and I never thought they would come so near us as in this Declaration, and now under a doubtful word, to throw out all that has been done! I am glad these Articles of Religion are so far agreed to by the Non-conformists. I like the Articles of the Church of England very well, but the Scriptures much better; the Apostles still tried all things by the Holy Scriptures. Having brought the Quakers in so far, I hope, in time, we may do it farther.
Mr Ettrick.] I am as much for Indulgence to tender consciences as any body. If I apprehend right, they are not to preach against the Doctrine of the Church, as it is in the Articles. As to belief, believing it is as they please; the only thing to be restrained is, not to write against it, and that only to be remedied. They say, "The Doctrine of the Trinity is no more to be proved, than Transubstantiation." Restrain them, that by writing they may not fill the World with endless controversies and disputes.
Sir Robert Howard.] I am rather of opinion with the Committee, than of the Lords Bill. I have for seven years desired such a Bill without success. In this point, you will give occasion for dispute and controversy.—To tell a man, " he shall forbear to write against a thing," is no hardship; but "that he shall not believe it," is. The Articles are turned to the Scripture; this is the way to ask which Manuscript they are out of; and as for the Holy Ghost, they will say, 'tis not in Scripture, and so they will raise endless disputes. I am glad we are so large in Indulgence. I am for supporting the Doctrine of the Church of England, and would have the Proviso so penned, as is taught by the Doctrine of the Church of England.
Sir Robert Sawyer.] This Bill declares the Profession of Faith in other words; "you shall not preach nor write against the Church of England;" this is only a saving to the words; they will say, "if we can prove that these Articles are not according to the Holy Scriptures, we do not write against them." They may insinuate this. They are at liberty to write or preach, if they can prove they are not according to Scripture—Else you will set up a new controversy.
Sir Thomas Clarges.] This Bill establishes a sort of Bill contrary to the Church of England. I would therefore have it temporary and probational. I cannot foresee what it may reach to, therefore I would have it for seven years only, and to the end of the Session of next Parliament.
Sir Robert Howard.] I hope this will bring more to the Church of England, than ever were found in seven years before. This tenderness will bring more than all the persecution. This is no new thing; it has been upon the anvil these seven years without success. It was brought forward in King James's time, but they could not and durst not perform it; their Church would never suffer it: And now, in the midst of all this expectation, to dash it with a temporary Clause! You had as good grant them nothing at all; thus to deceive them into an Indulgence, and cramp it with time. Let us throw no cold water upon this warm thing; and pray do not disturb it with Limitation.
Sir Thomas Clarges.] For Gentlemen to say, "That the necessity of affairs induces this,"—'tis not worthy of a Parliament to say so. I do not restrain it to seven years, to diminish it; but if we do it, is it not fit for us to limit it? If I thought it not for the Church, and for their benefit too—I desire the Clause may be read.
* * * * *.] To make the thing temporary, will look like design. I would have it as large as the Church of England, that we may be one in affection, and one in interest. All that is said against it is, "That an ill use may be made of this." I hope the Church of England will increase daily by it. If they make an ill use of it, there will be always enough in this House to take it away. The late King James offered them Indulgence, and, like unwise men, they ran into it to be deluded: And I look upon Penn's Quakers, who were so forward then, to be Papists.
Sir Henry Capel.] Rather than the Bill should not be effectual, it were better they had none at all. As for what is said of "making it temporary, to see how they will behave themselves," 'tis the only way in the world to make them a dangerous party, and against you, to throw this out. In King James's time, they, through necessity, did comply; and God knows, in seven years, what change there may be; and men, to ease their consciences, what may they do? I would not give them occasion to throw themselves out of the Protestant interest. We hear of a general Indulgence in Ireland, and here we are cutting up ourselves. Let After-Parliaments alter it, if they see cause; let us pass it.
Sir Thomas Littleton.] There was great reason why the Committee refused the Proviso. The Committee, though they were for Indulgence, were for no Toleration. The Committee thought not fit to make it temporary, because then they had a time certain, and might do mischief. They may possibly send the King Money.
Mr Godolphin.] I have a great deference for the other side I beg pardon, if I am not convinced by their arguments. The liberty you give them may be abused, and you may have experience, in seven years, of their deportment.
Mr Hampden, sen.] I am against the Proviso, and therefore against reading it. The same reason may be, to make every Bill a Probationer as for this: I hope the Dissenters will deserve it, and you do it upon a presumption that they will be true to the Government. This will go with you, though perhaps not with the common people in Westminster-Hall. At this time, they are leading a considerable sum for uses you will approve of, I am sure. I cannot answer the argument, why you should limit this Act, and use these people gently for a while, to persecute them afterwards. You have not repealed the Laws they are punished by, but only that they shall not be prosecuted by them. The Repeal of the 35th of Elizabeth passed the Lords House, but what became of it, I am not willing to remember; That Act is the only Law left that the Papists might ruin the Church of England by. They say, their Religion is the Church of England; by which, if they meet in private houses, they must abjure, or be hanged. These Laws with fresh vigour may be executed against them. Let no interruption be to the joy of these people, and lay aside the Proviso.
The Proviso was rejected, and the Bill passed.
[May 18, 20, and 21 (fn. 4) Omitted.]
Wednesday, May 22.
Mr Hampden, Sen.] What I shall move you, is for the King and the Nation, "That the Act for Habeas Corpus, &c. may be suspended for a time." The Lords shortened the time of the last Bill, not you. Dangers usually come not in a day; growing dangers, and the consequences, are in the dark, when it is too late to prevent. What is the meaning of all the intelligence that comes out of the Country, of ill-affections to the Go vernment? And have we not a body here that are mutinying against the Government? In Lancashire, since the Irish were disbanded, they meet in parties, and you have no way to obviate this danger but by this Bill. You are willing to go home; what will the King do? Dangerous persons will be delivered out of prison of course, if this Bill prevent it not; and they may act to the Subversion of the Government. If you will leave Impeachments behind you, when you are dismissed, that will be a tedious way, and they may else come out. The same common danger with you induces me to move this.— And if people conspire, the King cannot keep them in prison; since they must come out by Habeas Corpus, if you prevent it not by this Bill. We are in War, and if we make only use of that remedy as if we were in full Peace, you may be destroyed without remedy. This Bill is for present occasion, and for a short time only I move it.
Sir Francis Russel.] If this were taken away, possibly I might be for it; for a Habeas Corpus is the Law already, without the new Act; and when we shall see better Judges, that Law will have its course. This seems as if there was a defect in the Government; and I hope you will rather take away the late Act quite, than prolong the last Act that suspends it.
Sir Robert Napier.] This Mistress of ours, the Habeas Corpus Act, if we part with it twice, it will become quite a common Whore. Let us not remove this Land-mark of the Nation, for a curse attends it.
Mr Boscawen.] The Gentleman is rather for taking away the Habeas Corpus, than this Bill: That, I think, is a great extreme. Let the danger be ever so great, I would not dispense with that Law but by Parliament. If dispensed with by the Executive Power, 'tis fatal always; by the Legislative Power, there is no danger. I am informed, from the North, of persons having been taken upon the borders, going to side with those risen in Scotland; therefore it is best to prevent the dangers: And is it not worthy the consideration of Parliament, that the Soldiers be prevented going into that country? There is no Law against that; but you have ground to suspect, when they talk lavishly, that a little drill of a dam may make a breach in the bank. Will those Gentlemen, that are not for the Bill, take upon them the danger that may ensue upon not passing it?
Sir John Lowther.] I can add nothing to what has been said: I shall only say, that, as for those in the North, I shall acquaint you with matter of fact, Persons were taken, who confessed they were going to King James; though some are in custody, yet some have entered Col. Langston's quarters— They refuse to take the Oaths to the King and Queen; and, if there be no remedy, these persons will pursue their intentions.
Sir Joseph Tredenham.] I hope the Laws and the Government are not so loose, as to do any thing extraordinary upon this occasion, which is now Law, and the ordinary course. I appeal to you, if going armed be not punishable by Law; if in Arms, in terror of the people? In these countries, if these things happen, the Magistrates may remedy them by Law. If every thing in Parliament is well done, nothing I fear so much as establishing any thing against English Liberty by Act of Parliament. If such a Bill be necessary, no man is more for it than myself; but if not, I hope the House will be against it— I would, therefore, farther consider the nature of this Law; and, so far as consists with your safety, it may be abolished. The unsettledness of the Nation, at present, is the only argument for it; but, I hope, now you will be settled, so as to have no need of it. In Rich. II's time, the Law of Provisors was made, which that King suspended; and afterwards an Act with a Salvo to the King's Prerogative. If once you declare, that so tender a thing as this, for support of the Government, may be suspended, it may make Westminster-Hall think so too, and follow your Precedents. We have Enemies abroad, and at home; and it is but a short time that this Bill is to continue; and it may be supposed that short time may not mend our condition. If people apprehend the Government not firm, it will make them have a less heart to support it. If we will not trust it in little matters, surely we shall not in greater. Content yourselves with the Laws you have already, and make no violation of them. Farther consider it.
Col. Birch.] It is beyond my time to court "this Mistress" spoken of; but I will stick to this as much as any body. You are moved for a farther day to consider this, and this is your day. 'Tis said, "now the Government is settled, no need of this;" but we all know that it is not settled yet; and before it will be better, it will be worse, We are in a state of War, and worse than War. There is a great man on one side the water, and King James on the other, and a Popish party, and another, in the midst of us; and this is a state of War, sure. If this be our condition, and disaffected persons in every corner, I would know of any man how this Habeas Corpus Act is now practicable, These men that disturb the Government have been picked up, but not tried, in two or three months—And you must deal sharply with them now. I think you cannot make it for a shorter time than November, at least; for we must go home, and then it will be worse. The Lord-Lieutenants and Justices of the Peace being in disorder, I hope this will keep us in safety at present,
Sir Robert Sawyer.] Give me leave to put you in mind of a thing put into my hands. Your Bill does not take care for Proof of a Charge against a man. Upon a bare Suspicion, Information was given by a woman, "That she was, with another gossip, in a house, where she heard declared, that there was a Conspiracy against the present King, and that one Sir Robert Sawyer did confederate with others to this purpose." But I must declare, I never had that in my heart; and I believe that King James's return would be the destruction of England. At this rate, myself, or any man, may be clapped up in prison.
Mr Hampden, sen.] If such an aspersion be upon a man, he has reason to resent it; but he may remember, 'tis not the first time that men have, upon suspicion, been clapped up, and that gossips have given Evidence, and Judgment has been upon it. I cannot blame him for resenting it; but he is safe, being a Parliament-man; and, I believe, no body takes him to be in a Conspiracy. Was the Act of Habeas Corpus made to shackle a good Prince? You have heard of forty thousand to bail; and would you have the King do this to save the Government? All this Sawyer knows.
Col. Mildmay.] This Act will shackle the King you have considence in. You must know that WestminsterHall Judges did that which Sawyer complains of; yet he is here. All that dare show themselves, do it now; practising, and yet they are so cunning, they do not come within danger of the Law, 'Twill not be for your service, to deny this Bill now. We desire to be at home, and 'tis fit we see these Laws put in execution that we have made; and we may, in the interim, be in danger. Therefore let us first pass this Bill, not for a long time, but a necessary time; for six months.
Mr Ettrick.] I am against this Bill, because it grows still worse and worse than the first; which was, for six Privy Counsellors, or two Secretaries of State, to commit. How far this may be, I know not. The security of all Governments is the good-will of the People; and I fear this may take their good-will from you. Magna Charta was confirmed thirty-two times. I know not whether going by this, by degrees, may not tend to repeal Magna Charta. Upon what Suspicions they will commit, whose they are, and on whom, we know not. 'Tis said, "Sawyer sits here:" You are going into the Country, and I know not how soon some of us may be sent for again, and committed, perhaps till November, to a close prison all this summer. I look upon the Habeas Corpus Act as the greatest defence against oppression; and WestminsterHall may say, "it is inconsistent, against the safety of the Nation," and a good ground for the Judges in WestminsterHall to suspend it.
Sir Rob. Cotton, of Cambridgesh.] As an Englishman, I am jealous of our Liberties, and will not give my Vote to betray them. The difference betwixt a Subject and a Slave is, that one has the benefit of Law, the other is used at pleasure. Never since the Barons Wars did any thing come from the Parliament to infringe that Liberty. You are told, "This Bill is necessary as long as the Government is unsettled." Lewis XI of France desired only liberty to raise Money till the next Parliament did fit; and he never called a Parliament, and they have raised Money without Parliaments ever since. I am jealous of a thing of so high importance to preserve our Liberties, not to put the Subjects in such a condition as to suspend their Liberty for an hour.
Mr Roberts (fn. 5).] This is not only to suspend the Habeas Corpus Act, but all the Liberties of the Nation. The person is committed without Oath, and may live in prison. This is putting Arbitrary Power in the Government. I am against it.
Mr Hawles.] I think it fit that such a Bill be brought in, in time of danger from abroad, and within the realm; and 'tis only to confine them from doing mischief. I am glad to see that the King and Government will not do it without an Act. In 1683, several were clapped up in July, and not bailed till November the 8th, and had not been then, but to bring the Popish Lords out of the Tower, Lord Powis, and the rest; and if a distinction could have been found out in their cases, they had not been then released. I think this Power fit to be lodged for the safety of the Government, and I am for enlarging the time.
Sir Christopher Musgrave.] I am against such a Bill; it suspends not only the Habeas Corpus, but the Law that was before it; (the fault of that Law was, there was no punishment for the Judges) I am sorry the Government is such, that men may be clapped up without Oath, and detained in prison. We hear of several clapped up, and no prosecution against them, at the pleasure of those that confine them. We are told of some going to King James; if that be so, you have a Law to punish them; and if any break in upon your Army, 'tis Rebellion, and you may punish them. I am not for confining men to prison, the greatest punishment next to death. I speak by experience: I have lain in prison. I hope you will not give leave to bring in such a Bill.
Sir Henry Capel.] I am glad to see the sense of the House so concerned for that Law of Habeas Corpus; but it is the wisdom of all Governments not to be strait-laced upon any emergency. This Bill was obtained with great difficulty, to stop the hands of persons from violence: But, in such a conjuncture as we are in, to be tied up not to do for the common safety, that people cannot be preserved by the Government, that will lose the people's hearts. To do this by Parliament, there is no danger; but that will be when Charters are voided, and no free Elections; and there is no danger in this Parliament, freely elected. But shall those in Westminster-Hall be compared to the legislative Authority?—But if they transgress, I hope they will be made an Example. The time named in the Bill, &c. is Michaelmas, or November—The Commissions of Peace are not gone out, and many will not act; the Deputy-Lieutenants have not had their Commissions. In the Justices there is a failure, and it may be amongst the Deputy-Lieutenants; those are the life of the Government; and if they will not act, nor the Army is secure, what shall the Government do to keep us in safety? I think, upon these circumstances, this Bill may be for our safety.
Mr Ettrick.] Had Capel known Westminster-Hall as long as I have, nothing has been more ordinary there than to judge your Laws void.
Mr Foley.] I know, Westminster-Hall Judges have judged Necessity in case of Ship-Money, and no inference that they may do it again; but that certainly we are in danger from Ireland and France, and some amongst us. If I am informed right, there were never so many Louisd'ors in payment: A third part of great payments is made in Louis-d'ors.
Sir Thomas Clarges.] This Bill is the most unreasonable and destructive that ever was made in Parliament. We have had a struggle for it these fourteen years; and now, upon suggested Necessities, to dispense with this Law! I am sorry we should take example of this thing from corrupt times. I hear it said, "We should not shackle our Prince." In Oliver's time, in 1656, one Coney was committed by his Order, and Judge Rolle delivered him—But Cromwell said, "Princes must not be shackled." Felony and Treason are not bailable by that Act—But what other offence can it be unless that? It grieves me to hear this; would you have a man committed to prison because he wears his hat on one side? 'Tis said, "Persons will not acknowlege the King, and take away horses; is not this Treason?" If Justices of Peace are not yet named, the Secretaries of State may send all over England—And where shall we lay the consequence of the loss of Ireland, but upon the Ministers of State? You are told, "That, in Monmoutb's Rebellion, men were denied Copies of their Mittimus."—They had a good Action, and might have had remedy. I am afraid of this. I tremble at the Question, and desire no such Motion.
Sir Rob. Howard.] I hear divers arguments against this Bill; but I think it gives great veneration to the Habeas Corpus Act, that it cannot be suspended but by Act of Parliament. By the Judges it cannot be suspended, to make this Bill an Example, unless they will make an Act of Parliament in their bosoms. I wonder, in the last Act, that the Lords should reduce the time so short as to make the Act useless; but, I apprehend, it was the modesty of the style the Lords used, and you see little use was made of it in that time; but I do not wonder that you provide against new accidents from the unsettlement of the whole Nation. I observe, when the Prince of Orange was upon his design, if this Dispensation had been made use of, many might have been clapped up (and the happy change prevented) and myself one. This is a strange distrust, in that which all mankind called then their safety. In the condition we are in, I think the Bill necessary, and I am sorry the condition of affairs makes it necessary. Other than this (the long Vacation we are like to have) I know no safety; therefore I move for this.
Mr Harbord.] We are told, "If 3000 men had been sent into Ireland, it might have been saved." I would ask that Gentleman, what 3000 men he would have had sent over? To send our own was not safe, and not fit to part with the Dutch. Those sent over have betrayed Londonderry, and those sent since have mutinied. I know not how Clarges can answer, that the King, persuaded by Col. Lundy, betrayed Londonderry (fn. 6). There are ways for the King to punish men—'Tis no easy matter to impeach in Parliament, and there he must lie till you meet again—and the Nation lost.
Sir Thomas Clarges.] I called upon two Hands, one for the Miscarriage of Ireland, and they have made the consequence upon the Ministers, not I. Deputy-Lieutenants may secure Persons, and that is another remedy.
Mr Comptroller Wharton.] If Clarges says, "The Ministers were the Cause of the Miscarriage of Ireland," it may be he was one; but many were of opinion, that King James had not abdicated the Crown, and that Gentleman was one of those Ministers.
Sir Thomas Clarges.] I desire I may be vindicated. I am arraigned for Debates; we ought to be free here; to say "that was the Occasion of the Miscarriage of Ireland!" I desire to have right done me. I except against the Words of that Gentleman, which were, "Those that were of opinion that King James had not abdicated the Crown, nor that the Throne was vacant, were the Ministers."
Mr Comptroller Wharton.] I did not say any thing of "Debates of the House." I said, "Those that held that opinion were the Occasion."
Sir William Williams.] The Question is plain, "Whether this Law shall be suspended for any farther Time;" which is so much for the safety and preservation of the Kingdom. Liberty of Persons is the Question. Whoever is for the safety of the Kingdom must be for dispensing. We were under danger when we made that Act first; now we are in a more imminent danger, in worse condition, and Scotland in no good condition; and I appre hend it more dangerous, when the Town is naked, and the King naked, and the Parliament gone. I think this Bill may be qualified with, "not to be committed without Oath."
[Leave was given to bring in a Bill, &c.]
[May 23 Omitted.]
Friday, May 24.
A Bill to impower his Majesty to apprehend and detain such persons as he shall find just cause to suspect are conspiring against the Government, was read the second time.
Sir Thomas Clarges.] I cannot but be troubled at this Bill, and the more for the Reasons given for it. I am not convinced of the necessity of the Bill, and more concerned for the King, who has delivered us from arbitrary Practices, to have this King informed, that the Laws of the Nation are such, that the Kingdom cannot be kept in peace with them. 'Tis so much against the privilege of the subject that any man may be imprisoned upon a bare suggestion, and not have benefit of Habeas Corpus. Upon commitment for Treason, or Felony, a man cannot be bailed. If he refuse the Oaths, he may be imprisoned, and the next refusal is Præmunire. I would not have any man committed, by this Bill, but by Oath, and that the accuser do give security to prosecute.
Sir Thomas Littleton.] I think there is a necessity of such a Bill; the peace of the Government depends upon it, now there are a sort of people disturbing the Government. I observe how tender the Government is now; in the last Reign, every thing was "conspiring the Death of the King," and that was the Tenour of all their Warrants; and since the King has done so modestly in the use of the two last Bills, not as formerly—
Mr Garroway.] I would to God, the King had not been put to it to get this Bill—But abroad in the World there are strange discontents, and such language as is not fit to repeat. The French King and King James are against us, we are now near a recess, and when we are gone, I know not what combustion may be; and for us to do nothing, and not trust the King!—I know not what combustion we may fall into; we are not now barely infears and jealousies— I hope the same hand that protected you will do it still, and I move you to commit the Bill.
Mr Boscawen.] I am against Sacheverell's Proviso; this Bill is for the security of the Nation. It has been opened, but you are at liberty to receive it or not. I have lately received a Letter: I will open it, and then you may judge whether you will read it, or not. 'Tis not from a fiction of my own, but it is really truth. A Member delivered me a Letter from Lord Shrewsbury's correspondence, "that persons about the Court corresponded with one in the PostOffice, and he with King James." You must know that what is done in Council the Clerks know—If you receive this Proviso, cast out the Bill. That there are such as wish not well to the Government [is certain.] By the Proviso, you must enter every Information, or nothing at all. A Gentleman comes, and upon his reputation gives in Information—Taken down to Order by Mr William Forster abruptly.
Mr Garroway.] You have spent a great deal of Time in this Debate of matter of Order. I am sorry the Question should be put, "Whether the Proviso should be brought to the Table, or no?" I never saw it denied. If he open his Proviso false, you will have satisfaction of the Gentleman. Let him bring it to the Table, and judge of it.
[The Bill was ordered to be committed.]
Saturday, May 25.
The above Bill was read a third time.
Mr Gedolphin.] I have some reasons to speak against this Bill. 'Tis the inherent right of every Member to speak his mind upon Bills in Parliament, though he is sometimes attacked for it. I think this Bill to be against the King's service; nothing is more for the disservice of the King, than to create prejudice against him, and nothing more than to think he will govern by arbitrary Power in the Members of the Privy Council, as in France. The King makes an Edict, Car tel est notre plaisir. This may subject your Bill to some Questions hereafter. Some time ago we did arraign the Government of arbitrary Power, exercised against Law. We go about now to establish arbitrary Government by Law.
Sir Christopher Musgrave.] The occasion of bringing in this Bill was because it was thought necessary for the preservation of the Government. At present, there are divers disorders, but when I consider we have a good Fleet, and have had Experience of our Officers, it may secure us from foreigners, though we do not hear much of assistance from others; (but that by the by) What then must we be afraid of? It must be home Papists, not yet clapped up. It must be from some people within us. If more considerable than they are, we have an Army of forty thousand men to protect us, which may prove as fatal to those that shall attempt against the Government as formerly. If we have such an Army, there can be no need of such a Bill, to commit men to prison without Oath, made upon suspicion only, which may be grounded upon malice, and be so construed as to bring misfortune to deprive Gentlemen of their Liberty, and, to their great charge, to be committed to the Tower; so I hope you will not part with such a Law so useful to us, and so valued. 'Twas one of the conditions of the neighbouring Kingdom (Scotland) with the King, to have an Act of Habeas Corpus, as in England. They are in a State of War, and are not desirous of such a Bill as this.
Mr Boscawen.] If this Bill deserves such a character as has been given of it, throw it out. I think it does not, and there is no invasion of the Liberty of the Subject; it is far from reducing us to the Government of France; that King does all for his Will and Pleasure, we do all by the Legislative Power for preservation of ourselves. There is a sort of men that think of returning to King James, drinking his health, renouncing obedience to the King; the same spirit is working now as formerly. Were the days quiet, without apprehensions, to have this Bill would be the greatest Blemish to the Government. They, in the last Reign, came not to the Parliament for Liberty to suspend the penal Laws, or this Bill. This is for a time only, and far from the Practice of the last Government, or France.
Sir Robert Cotton.] I am as much for the settlement of the Government as any man, and will do as much towards it. I know, as circumstances alter, things must alter, and if only circumstances were altered, and a man to be committed without Bail, but to alter the reason of the Law is hard. Laws are made that a man may be safe, that a man may know his crime before he be committed to prison, and may recover his Liberty in a legal manner, as the Law appoints. If this was for suspicion of fact by words, or any ground of reasonable suspicion; but when the suspicion has no ground, but upon private resentments, and that not so open, and not know why suspected, this alters the very reason of the Law of Habeas Corpus. I know not how to distinguish the Liberties and Privileges of the House, as was offered yesterday for a Proviso in this Bill; but if nothing be offered upon Record, who will know that it is not for words here? And the Liberty of Parliament will be destroyed. We have had a Proclamation about French Goods spoken of here; and the Seal; and that could not be done without advice; and how far may the advisers resentment extend to those who complained of it here, and they touched with it? This is the greatest Breach of the Subjects Liberty without, and the Liberty of the House within, I hope you will throw out the Bill.
Mr Hampden.] I find Gentlemen tender in this Bill, and I cannot blame them. All the Arguments I have heard were good, if we were about to take away the Law, but if Gentlemen think themselves safe, what need is there of a Militia, for security of the Kingdom? These Acts are like Buckets for Water, to stand by till you have use for them. I know, the Romans gave up all their Laws for a Time to the Dictators, for the preservation of the Government.
Sir Joseph Tredenham.] I cannot consent to pass this Bill. When the first Motion was made for this Bill, it was for this end to keep persons from imprisoning by arbitrary Power, and now that persons may not claim their Habeas Corpus, when imprisoned, till the Government were entirely settled; and now that it is in good forwardness, that case ceases. The Privy-Council, by this Bill, may imprison upon all suspicions, and the Power of the Bill last till October next. How agreeable is this to the Laws of the Kingdom, to make so great an Invasion upon our Liberties, I must declare my dissent when the Question is put; and since I have this occasion, I must make use of my Liberty. I have a great Respect for those that are to have this Power, but such an extraordinary Authority has always been found fatal to those that have executed it, and been entrusted with it, as lately was the Ecclesiastical Commission. There is a trust implied in those Grants, and they are answerable to the Legislative Power for their Actions, and it is a Question whether they will approve of what they have done. The Laws are not at all defective. The Habeas Corpus enacts only a declaratory Law of what was the Common Law before the Great Charter; and the Habeas Corpus was a Law to be tried in convenient time, and not to lie in prison, when committed for suspicion of Treason and Felony; and if this Bill make it not bailable in Felony, surely not in Treason, and the offence must be expressed in the Body of the Commitments. There has been ('tis true) extraordinary Bail demanded by the Judges, but whether is it more grievous to have extraordinaay Bail, or no Bail at all, as by this Bill, &c.?
Sir William Williams.] I differ from that Gentleman; for the very Reasons he has alleged, I desire the Bill should pass. Were it such a Bill as to lodge an arbitrary Power in the Prince, I would agree to my own Execution first; should a Bill be brought in to place an absolute Power in the Prince, I would call that Man to the Bar who should bring it in. I take the Privy-Counsellor, to act in execution of this Bill as Trustees for the Kingdom of England. Had it been for my Life, I would have had that Clause in, that was rejected, about entering Informations into the Council-Book, &c. yesterday. Privy-Counsellors are not all Lawyers, and I would have that Clause for their safety. Privy-Counsellors, by this Bill, may commit for suspicion of Treason; if they have no reason for what they do, I tell them to their faces, they must answer for it in Parliament. They are not to suspect a man because he wears a white perriwig, or a mask, but upon a just cause; else he must not be questioned. This cannot secure them from answering in Parliament; if they commit a Person without cause, they must answer it to the Law, and the Kingdom. Therefore pass the Bill.
[The Bill passed, 126 to 83.]
[May 27, 28, 29, 30, and 31 Omitted.]