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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Tuesday, June 18.
An Address from the Lords to the King relating to securing the Forts and Islands (fn. 1), &c. was sent to the House for their Concurrence.
Mr Garroway.] This Address is as if the King were in Holland, and Stadtholder, to teach him his duty, and not King of England. I am against it.
Sir Joseph Tredenham.] If this Address be publishing our weak Condition, I am against it. 'Tis certain, these Places are in no good condition, and since it is not mended, it is our duty to represent it to the King, and we cannot else do right to our Country; especially this coming from the Lords, makes me for it.
Sir Henry Goodrick.] Guernsey is in ill condition, though the best harbour in the World. It lies opposite to France. There are no guns, nor ammunition. The consequence of the place is great. As for the Isle of Wight, it is a place of infinite consequence, and so ill-fortified, that the Governor, Sir Robert Holmes, at his own charge, has done something. Yarmouth and the Castles are much out of order. I hope it may for the present be done without much charge. I would concur with the Lords.
Sir Thomas Lee.] I find we are now upon the Debate of Address to the King about the Isle of Wight, &c. and therefore it is not fit to pass at the Table in a moment. I could have wished the King had sent to you before, or you to him. I hear of Garrisons making, and we may draw more Garrisons upon ourselves, and at another time it might be suspected. For Jersey you may do something, and I am sorry to hear from Goodrick, "that Guernsey cannot be kept." The Lords, I believe, have had informations before them, and I would have you do so too, and consider as they have done.
Sir Christopher Musgrave.] I take this Address to be of great Weight. This has been examined by a Committee of Lords, and it is not usual for us to take things upon trust. Inform yourselves, as the Lords have done, and then, upon committing it, you may take the same steps, that the Lords have done, and then you are ripe for Judgment.
Sir Henry Goodrick.] The Fleet is now drawing towards Brest. I see no manner of Summer-Guards, and we have nothing to send men into these Islands. I suppose they may land men out of France with flat-bottomed Boats; have we any Frigates to hinder a descent from France? Unless we send out some Ships presently, we may run an irreparable hazard. This is the purport of the Address from the Lords, and I hope it may be effectual.
Mr Harbord.] I am willing to commit this Address. The Lords have had this before them three or four days, and I would go the most decent way to the King: I would examine the thing and the charge of it; it will cost the King Money; therefore, upon the whole matter, I would commit it.
Sir John Thompson,] It seems, the King has not been put in mind of this by his Counsellors, and therefore we must do it; but I will not see it with other mens eyes, when I can see with my own. I question whether this Address will not bring on the Consideration of Money; and since this is for our defence, I would have the Committee take some care of the Navy, and see what present state the Navy is in.
Sir Thomas Clarges.] This Motion of Garroway's, of computing the charge, is letting the Lords in to raising Money. I do not know but the Commissioners of the Admiralty and Ordnance have done their duty; but this is too great a presumption that they have not. We have given two Millions already, besides the Revenue. I would have the Commissioners of the Admiralty and Ordnance give you an Account of their Proceedings.
Sir Henry Goodrick.] The Office of Ordnance has not wanted Application to the Treasury for Money, which it wants. The Duke of Schomberg has made Application. Nor has Wharton, the Engineer, been wanting; he has viewed all these places, and has orders to make them in as good defence as possible.
Sir Thomas Lee.] You may enquire as much as you please into these things; but I think Clarges has minded you well of letting the Lords in to giving Money, though I know not how he can make out "two Millions" given. I think it for your service to enquire if it will cost you Money by an Aid, and you may see if the Revenue can pay it, and not do it without that, lest you let the Lords into giving Money.
Mr Howe.] To address the King to do what he has done already is a reflection. As for the Islands, I hope they may be speedily done; and for Londonderry, I would see what forwardness we are in for Ireland, and would know how many Dutch Ships are to join us; and if, upon Enquiry, you find the Dutch Ships out, and Ireland in good condition, there will be no occasion for this Address.
Mr Boscawen.] An Engineer was sent to Jersey, and Guernsey, and Scilly, to compute the charge. I desire you to take notice, that, before you make this Address, you should inform yourselves what care has been taken. I have this Morning spoken to Duke Schomberg about it.
Mr Ellwell.] Are we only to fight and have no trade? To be neglected, and no Convoys for Merchants? They make Fortifications in France, and shall we have no fear of Invasion? There is no Militia, and Pendennis-Castle is in ill Condition, and lies open to the French and Irish too. I would have particular Instructions to the Committee to enquire into the Navy.
Col. Birch.] This Address comes in a most unusual way, but when any thing is before you, I would know the Bottom of it. I would have the Committee examine what is done, and what is not done. One Part of the Address relates to Shipping; our safety is, in the first place, to be looked for. I desire, a Paper may be laid before us of the number of Ships in the whole Kingdom, how many fit, and not fit, and where they lie. Some talk of 30, 40, and 50— ('tis none of my trade) I would know what you have for reserves, with the several particulars of Guns and Burdens.
Serjeant Maynard.] I would have the Committee enquire into the Captains of the Navy. I hear there are young men put into Ships, that never were at sea before. The Question was formerly, "Was he a godly man." And he was put in. I asked then, "Whether a godly man could make a Watch, or a pair of Boots?"
Sir Thomas Lee.] If being of a party makes men fit, I have heard that young men are fittest to fight. Those that know, and have fought, are thought the fittest to judge. Lord Torrington (fn. 2) is fitter to recommend a Captain than I am, that live in Buckinghamshire. The charge is computed at 100,000l. a month, the Estimate, and when I have said that, it will not bear the Charge of this Summer's Expedition (and gives an Account of the Shipping) But do what you can, there will be leakages. As many Ships as are appointed, are near ready, to a ship. The King has ordered twenty to cruise betwixt Scotland and Ireland. Those who are experienced were thought best to recommend Officers; and to my Observation, those who were never in the King's service are not so forward with their Ships as those who were in the King's service before.
Col. Tipping.] I was lately at Portsmouth, where I saw one of the greatest Ships given in upon Account fitted, and weeds grew on her sides, three times as long as the Table; which, Lord Torrington said, must have been, at least, three years laid up.
[The Address was ordered to be committed.]
Mr Justice Powell attended, according to Order, and being called in,
The Speaker said] The House has sent for you to desire you to inform them, whether the Judges were sent to to meet together in Sir Edward Hales's Case?
Mr Justice Powell.] The Judges were sent to to meet my Lord Chancellor at Serjeant's Inn, in Fleet-Street; all the twelve Judges were present, and there it was proposed, Whether the King could dispense, &c. in Sir Edward Hales's Case? I beg the Favour to be excused from making answer as to Persons. 'Tis improper for me to accuse any. I humbly beg the Favour that I may be exempted. And withdrew.
Col. Birch.] It seems, he is tender in revealing what passed, on private considerations; but what was done upon that Occasion was on a public Account. I conceive it not the Intention of the House that this Gentleman give Evidence; but I think it necessary that you know what Opinion was given, because you were told that eleven Judges were of that Opinion.
Mr Leveson Gower.] I am of Opinion, that no Imputation can lie upon him to tell you the Opinion they gave; but I would not ask him what Opinion he was of; but how many signed their Opinion at that time.
Sir Thomas Littleton.] If you go through with this Question, he may live uneasy in his Judge's place. I doubt not, Powell gave his Opinion for it, and Streete was the only man against it. I think he has given a very particular Account to the Lords, and it is fit he should do it to you likewise.
Mr Garroway.] I wonder what you sent to this Judge for. Now he comes, he makes you a great Compliment, whether you will ask him the Question, or not? If the Crime be such as that all is at stake upon it; ask him plainly, what Opinion these Judges gave, but not himself. I hear he has frankly and freely given an Account in the Lords House.
Sir Henry Capel.] Was this Judge in any public Court on oath, he ought to tell what he knows. For once, let us not part with our Laws, without some struggle for it. I stand amazed that Powell is tender in it here. He is not to be excused for his Modesty, though a good thing. When that compliment and excuse is over, for the good of the Nation, he ought to give you a clear Account. I hope, you will tell him that this House requires it of him to inform you, and I believe he will obey you.
[He was called in.]
The Speaker.] Mr Justice Powell, the House has considered your Answer, and have commanded me to acquaint you, that for what concerns your self they will not question you, nor require an Answer; but for what you please of the other Judges, there can be no tye of Secrecy; you are under a duty to tell your Knowlege. This is not properly an Accusation of the Judges, but your testimony is required to deliver your Knowledge.
Mr Justice Powell.] I am very free to declare any thing relating to myself, but to others, unless you command me, I desire your excuse. 'Tis at a great distance, a great while since, but I shall declare what I remember. I am unwilling to incur the Displeasure of this honourable House—Going on Wednesday or Thursday in Trinity Term, [2 James II,] to dine at Serjeants Inn, in ChanceryLane, I was desired to attend at the other Serjeants Inn, in Fleetstreet, at four o'clock; where being met, my Lord Chief Justice Herbert told us what the business was. He desired my Opinion, with the rest of the Judges, in Sir Edward Hales's Case. He cited some Cases to make out the King's Dispensing Power. He cited Coke's 12th Report. After he had done, it was my turn, as Puisne Judge, to speak. I answered, "The Case was of great Importance, and, for the present, I was not able to do it, till I had consulted Books against Michaelmas Term." He said, "He would have it on Tuesday." I said, "The time was short, but I would wait on him." Milton, who was then Baron, gave his Opinion, "That he might dispense."The next was Lutwich, who said, "He restrained it to this Case, and thought the King could dispense [in this Case, but not (fn. 3) ] in Ecclesiastical Cases." He restrained it to that Case before us not relating to Religion." Jenner was next, who said, "The King might dispense." Wright was for dispensing. Holloway, I believe, was for dispensing; I cannot say it positively; I was at a distance. Streete was against it. Lord Chief Baron Atkins was at a greater distance; I could not well understand him; he cited several Cases. Lord Chief Justice Bedingfield's Opinion was, "That the King could dispense." This is all I can say in the matter transacted so long ago. Nothing was put in writing, nor notes taken of what was then spoken. As for what concerns myself, I attended my Lord Chief Justice, at his Chamber. I called on Mr Justice Lutwich, who went with me, and there I heard first of the Judgment given on Monday morning. 'Twas given on Monday, because there was a Grand Jury of Persons of Quality that day, and it was thought the next would not have had such an Audience, and therefore they hasted giving Judgment that day; so I did not deliver my Opinion. I beg pardon, it was my forgetfulness not to name Wythens and Heath—(Upon the Speaker's asking of them, &c.) They were with the majority for the Dispensing Power. I think no persons were present but the twelve Judges, and I am pretty confident of it. The Question was delivered by word of mouth, by Lord Chief Justice Herbert, "Whether the King could dispense with the Statute of 25 Charles II, and the accepting a Commission by that Dispensation?" He withdrew.
Sir Samuel Astrey, being interrogated by the Speaker, said,] Lord Chief Justice Herbert, Wright, and Holloway, were present at pronouncing the Judgment in the Case of Sir Edward Hales and Godwyn. The Opinion, in the Dispensing Power, was pronounced by Lord Chief Justice Herbert, who said, "It was not only the Opinion of the Judges in the Court, but he had consulted the rest of the Judges, and it was the Opinion of ten of them." He said, "There was another Judge did hesitate when they did meet." I beg pardon if I mistake in words, but in substance he said) "Ten were for it." Justice Streete was against it, and another Judge did hesitate, but that he was informed, by Holloway, that Justice Powell had declared his Opinion for it." He withdrew.
Sir Robert Henley, being interrogated in like manner, said;] I was present in Court 2 James II, when the Case of Hales and Godwyn was argued. There were present in Court Lord Chief Justice Herbert, Wythens, Holloway, and Wright. The Case was argued but once, by a young Gentleman, Mr Northey, against the Dispensing, for Godwyn against Hales, upon an Action of Debt on the Statute, Tam quam, &c. The King's Counsel argued for the Defendant on the other side. I am certain these were the Judges. I looked on my Book. The Case was argued but once, not seriatim, but by Herbert only: He said, "He had consulted the Judges, and they did all concur; but that Streete, and another Judge doubted"
Mr Garroway.] I have something to ask more. I would know who were the King's Counsel, who argued against the King? That was a very pleasant thing.
Sir Robert Henley, being asked, &c.] Sir Thomas Powis, the Sollicitor-General, argued for Hales, and Mr Northey for the King.
Sir Samuel Astrey.] I cannot charge my memory with Lord Chief Justice Herbert's Argument.
Sir Robert Henley.] I remember, the Precedents cited were for "the necessity of it, and that the King was judge of that necessity." The Rule-Book will exactly tell the day.
The Oath of the Attorney-General was read.
The Ecclesiastical Commission was read.
The Speaker to Mr Bridgeman.] The House have read the Ecclesiastical Commission, and they find your name in it as a Register. They would know whether you attended as Register?
Mr Bridgeman.] I was generally there and attended, but, in my absence, Mr Smith of Doctors Commons attended. In the Business of Magdalen College, one Tucker, my Clerk, then attended. I was sent for to Westminster, being in the Secretary's Office, and the Commissioners gave me a draught of a Warrant to ingross: I heard nothing of it before. Lord Sunderland brought it, but I remember not who carried it to seal. I entered all down in a Book, who were present. Smith and Tucker were my Clerks that entered them in the Book. We had loose Papers as Minutes, which were entered after the rising of the Court, and the Book was the Register I kept.
Sir Thomas Clarges.] I hear of a Committee of Lords and others, called "Regulators for all England;" I would know whether there was such a Committee, and who sat in it?
Mr Bridgeman, being interrogated, &c.] I attended the Commission, at the Judgment given upon the Bishop of London. I cannot charge my memory with the Names of the Commissioners in the Books, but I remember there was a difference of Opinion, at two meetings; they did not agree both times. The Lord Chancellor, Lord Powis, Lord Castlemaine, Sir Nicholas Butler, and Father Petre, were of the Committee for Corporations. I cannot say, they sent Instructions into the Country, for I attended only in the Secretary's Office. That Business was managed by Mr Brent for me. I was frequently sent for to attend the Committee. I have seen the Names of Persons in the Country, that consented or refused taking the Penal Laws and Test, &c. but I never saw any but loose Papers, all in one Hand-writing, and in the Secretary's Office, and, I believe, some of these Papers are in my Custody still. I was not employed in the surrender of Charters, only in the Secretary's Office. I was present when the Warrants were signed for the Commitment of the Bishops to the Tower, and I remember not who signed; only two or three Lords went out, and did not sign. I remember the Earl of Berkeley only. I was indisposed in my health, and remember no more.
A Copy of the Commitment of the Bishops to the Tower was delivered, in and read.
Mr Smith.] I observe that Bridgeman was sick, when he had no mind to tell who they are; pray ask him very strictly, whether there were any more, and who they were?
Sir Robert Clayton.] I would know, whether Penn and Lobb were of that Commission?
Mr Garroway] I would have Mr Bridgeman recollect himself of the Names, from his Notes.
The Speaker.] Mr Bridgeman, the House takes notice that the Persons you name are either dead or absent; can you name any others present?
Mr Bridgeman.] There were my Lord Chancellor, Lord President, Marquess of Powis, Earl of Castlemaine, Mr Petre; these met at Lord Sunderland's Office. Brent and Trinder, to my best remembrance, managed. Robinson attended. I never saw Penn nor Lobb there. In the Case of the Bishop of London, Lord Chief Justice Herbert dissented. In Magdalen-College, and all public matters, he dissented to every one. I know not particularly as to the Bishop of London's Plea, but he dissented to all publick matters.
Mr Kendall.] I hope you will consider Lord Chief Justice Herbert, for the sake of a noble Person, his Brother (Lord Torrington) who lately had your thanks for his good service (fn. 4), &c. and show him favour for his sake: Though he is of a different Opinion from his Brother (fn. 5), yet he has a natural Affection for him, and I hope you will consider him for his sake.
Mr Holt.] I had my education in Winchester-College with Lord Chief Justice Herbert. I have discoursed this Point of Dispensation with him. He aimed at nothing of Preferment; it was his Opinion and Judgment; but he went not so far as King James would have had him, and, in the Proceedings of the Ecclesiastical Court, he did dissent from the rest.
Sir William Williams] When he gave Judgment, &c. he did say this that did allay me: "He would not serve purposes to destroy Parliaments, and he would not give his Opinion to dispense the Lords and Commons from taking the Oaths, &c."
Sir Robert Cotton.] If Herbert did not come up to the others, and order soldiers to be hanged up for deserting their Colours in time of Peace—I would except those who had their Hands in Blood. You have heard how he carried himself in the Ecclesiastical Commission.
Sir John Thompson.] I think we are out of the way. We were for naming men to be excepted, and why should one man be excepted, and not another? If you will excuse them all, with all my heart. If they partake of the same Crime, it is fit they should have the same Punishment. Consider in the lump, whether they shall be excepted on this Head, or not?
Mr Boscawen.] I would not have all Oblivion and Indemnity. I would have some punished for Example. God forbid all Offenders should be excepted! I took the Sense of the House to be, that some should be excepted, &c. and that implies you will excuse others, and I am at liberty to pardon Herbert.
Sir Joseph Tredenham.] By what I have heard said, Herbert is not one of those notorious Offenders you aim at. He tied up his Opinion to one particular Case, and gave not a general Opinion.
Mr Papillon.] You have excepted none yet for Life; this Head is only for Pains and Penalties. I see not how you can excuse this Person, if you take any other Person in. All have been upon this foundation. If you excuse this man totally, he may be Chief Justice again, and then maintain this Opinion. He has been the Head of this Opinion; so you must do something on him, but as little as you will.
Mr Hawles.] If I would consult my affections, this is the Gentleman I would have pardoned. I know him an honest Gentleman. If you excuse him because a man of learning, strike off all that Head. Milton is not a man of learning, and Wythens, I think, very little so. If he judged well in other things, except him now: He went out upon the City-Charter; he was not for a total Dispensing Power; he was for a man to be hanged in his own Country, and not at Plymouth, for deserting. If you will admit these excuses, lay all aside. If I would plead for any of them, it should be for him. But since the Penalty of Death is passed over, yet I would have a Punishment, though a mild one, and except him.
Mr Leveson Gower.] If he must be excepted out of the Act, I would have your Advice, whether you will not make a conditional Proviso that the King may pardon him. I hope it will be in the Consideration of the House, that then he may be left to the King's Mercy, when you come to the Pains and Penalties.
Sir Robert Howard.] I am willing this Person receive favour and mercy, but not for the Reasons proposed, "That his Opinion was his Conscience and Judgment." But the matter is, now we are against the Dispensing Power, that we should be the great Dispensers of the Law. They held an Opinion, "That the King was supreme, and might dispense;" shall we dispense with this? We may become censured in this Place. As he was the first mover of this Dispensation, so his Brother, the Admiral, was the first who gave his Opinion against it, and frankly gave up all he had. I think the Judgment must be, he must be excepted, and then that you will petition the King (for his Brother's sake, who deserves as much as any man) that it may be upon his merit he is pardoned.
[Resolved, That Sir Edward Herbert be excepted out of the Bill of Indemnity on the first Head.]
On Mr Justice Wythens.
Sir John Lowther.] I am afraid that Excuses will be unwelcome to this House. I say, in behalf of this man, that no sooner was he promoted, but to all sorts of men he denied Patents of Dispensation from the Oaths. He did it only as to Officers in the Army: But he has said before good Witnesses, "That he wished his Tongue had cleaved to the roof of his Mouth, when he gave Judgment, &c. and if the Parliament should consent to the Dispensing Power, he should never think them men of Honour more." He lost his place for his Opinion about hanging the Soldier, who run from his Colours. He was never corrupt; he never took a Shilling. I perceive I am ill heard upon this Subject, (there was a great noise) but I leave him to your mercy.
Sir Francis Blake.] This man was in the Blood of Sir Thomas Armstrong; he was one that condemned him.
Mr Harbord] This Gentleman was brought on his Knees in this House, about the abhorring Petitions to address the King for the sitting of the Parliament (fn. 6).
Sir Christopher Musgrave.] I suppose you intend an Indemnity, and your Exceptions not to be many. I know this Gentleman, and must do him right; his Opinion was only to that particular matter before him. (Hales's) Herbert wrote a Book in Defence of the Dispensing Power; but this man did not: No man can think me a favourer of this Dispensing Power. I beg your Mercy for him.
Mr Hawles.] This man was deep in almost every thing: Except as to the Soldier, you will find him involved in all things.
Sir John Lowther.] I have no Obligation to this Gentleman, and therefore can only testify what I have said. He stayed but one entire Term in his place, after he gave the Judgment of the Dispensing Power. There is Mercy before you as well as Judgment, and I hope he will find Mercy.
Sir Joseph Tredenham.] I was with him in the Western Circuit, and I must bear him witness, that he was against the Dispensing Power.
Resolved, That Sir Francis Wythens, and Sir Richard Holloway, be excepted.
On Lord Chief Justice Wright.
Sir Thomas Clarges.] If any fact he hath done be Felony, or Treason, make his Estate forfeitable, and I am for it. But where there is no Offence in Law that he has committed, I would not have him excepted.
Sir Thomas Littleton.] It would be an ill thing for such a man to be upon your Books, to stand there with no mark upon him.
[Resolved, That Sir Robert Wright be excepted.]
On Lord Chief Justice Bedingfield.
Sir Thomas Clarges.] This is an extraordinary Precedent. I would have the Committee search Precedents. I have not known, when a man has had no capital crimes against him, that, when he is dead, you have proceeded against him.
Col. Tipping.] If you will not except him out of the Indemnity, why have you excepted Herbert, and the rest? Lord Keeper Coventry was fined 10,000l. when he was dead, for the Judgment he gave upon Lilburn in the Star-Chamber.
Sir Christopher Musgrave.] This Case is quite different from the rest. This Gentleman gave no Judgment in Court, any more than in private Discourse and Conference, and I cannot give the same Judgment against him as if he gave it in Court.
Sir Joseph Tredenham.] Before you pass Judgment upon this Gentleman, to attaint him, since he is laid in the Dust, pray consider his innocent Posterity, and punish not them as if they were really guilty.
[No Vote passed upon him.]
Wednesday, June 19.
Debate on the Lords Amendments to the Bill of Succession; "the Princess Sophia" being named in the Succession.
Sir John Lowther.] This looks like a kind of Perpetuity. There may be Revolutions and Changes; this Princess of Hanover may turn Catholic. Queen Elizabeth would not determine the Succession, and she was a wise Princess. Till I am better convinced, I cannot agree to it.
Sir Rowland Gwynn.] In the Instrument, you have limited the Succession of the Crown, and I would do nothing contrary to it.
Mr Sacheverell.] I desire you to consider what you do, before you agree to this addition. Is it your Intention that those bred abroad Calvinists or Lutherans, that may come to the Crown, and receive not the Sacrament according to the Church of England, shall be taken for Papists? Will you exclude that King that should marry a Papist, and know her not to be so? To exclude a Papist barely, so far I can agree. The other Clause is putting it into the Power of the Privy-Council to name you a King. He shall be no King, till he shall take such an Oath as is tendered him by the Privy-Council, and it lies in the Power of the Council to tender it. Had it been left to the Parliament, I should not have been against it, but I would not leave it in the Power of the Privy-Council to tender the Oath, or not.
Sir Thomas Clarges.] When Queen Elizabeth died, King James was in Scotland, and he had no invitation to come hither, but by the Privy Council. Cardinal Rishlieu used to say, "Two words often spoiled things, faisons mieux." There has rarely been this occasion. When Queen Elizabeth was declared Queen, the Privy-Council invited her to accept of the Crown.
Sir Thomas Lee.] The Privy-Council did it not alone, and there was no such Power in the Council alone; but it was done by the Lords, the Lord Mayor, the Noblemen, Gentlemen, and Citizens.
Mr Boscawen.] Though he be a Papist in his Heart, yet if he takes the Oaths, he may be King. The Prince of Wales beyond sea, by this Amendment, may be called in.
Sir Robert Sawyer.] The Privy-Council summon all the Lords in and about the Town. The Lord Mayor is not summoned; but when they proclaim the King, the Lord Mayor is sent for to proclaim him. A short Amendment may do this; some Power must be lodged somewhere. 'Tis of dangerous consequence, if on the sudden, and no Parliament sitting; and he that comes in may be a Papist.
Sir Robert Clayton.] I have not looked into the matter much. I have seen the original Proclamation of King James. The Lord Mayor of London signed the Proclamation first; his Power was not determined by the King's death; his Power was in being when all other Commissions ceased, for he has it by Charter, and not by Commission.
Col. Birch.] Consider well, before you throw out this Clause; but make it larger, "That the Lord Mayor, and the Lords about Town, may proclaim, &c." You may mend it at the Table.
Mr Garroway.] I think it not so easy to mend it. I hope Gentlemen will not exclude themselves from this right of being a Party in proclaiming the King.
Mr Hampden.] Whatever the Clause is, be pleased to remember "That the Lords desire you to sit, and have something to communicate to you of great Importance." All I know of it is, if you delay this Bill, it may be of little use to you.
Sir Thomas Lee.] I desire Gentlemen to consider, that, if you adjourn this till to-morrow, no Debates can intervene between it. I think the Bill has lain too long already, and shamefully too long upon the Table. Therefore I propose Friday (fn. 7).
Mr Garroway.] Perhaps something in the Letters sent you from the Lords may occasion new thoughts; therefore read them first (fn. 8).
The Letters were read. They were in a disguised Style, upon merchandize, and other things, with affairs relating to Ireland, and one in a Quaker's Style.
A Letter directed to the Lords Spiritual and Temporal to this Effect: "That the Prince of Orange taxes the King with force to subvert the Protestant Religion, when his Forces were not of that strength. He speaks, in his Declaration, of the French League, but when got into the Throne, nothing more was said of it—The Treatment he has given to the Protestant Religion in Scotland—Murder, Bloodshed, and Treason, the Effects of the Reformation. He declares he will secure Liberty of Conscience, and provide for the national Church established by Law, with Indemnity for what is past." This Letter from King James was intercepted in Lancashire.
In the same Packet was intercepted a Proclamation [of King James II, dated Dublin-Castle, April 1, 1689] importing "Liberty of Conscience in general, and not King James's own Religion in particular, though the Prince of Orange impudently asserted the contrary—Asserts the Prince of Wales—Commands all his Subjects to declare for us—Will pardon all crimes, but such as voted against our right, and those who came over with the Prince of Orange, for a Terror to all that have committed such crimes, &c."
Another Letter, "of the French Fleet coming for England, &c."
Another "giving an account of the Siege of Londonderry, and that Kirk will be warmly received. That the Act of Settlement is taken off—with Blank Commissions for England—If any body writes in the Name of C. Powell, he may be trusted."
Mr Garroway.] It has been some wonder to me that the relief of Ireland has been so slow. I hope this will quicken those it concerns. Let them look to it whom it concerns, and if they give not a good Account of it, you may call them to question.
Mr Howe.] It seems, the Committee is fallen that was to draw up the Impeachments; 'tis time to call those Persons to question before they do more mischief; if we lose Ireland, and Scotland be lost, we are never like to give an account of England. A great many of King James's former Servants are still in employment; they are too many to name them. Some in the Lords House have protested under their Hands, "that we cannot impeach Commoners"— I think all these Persons ought to be proceeded against.
Sit John Guise.] What you have before you is of the greatest Importance.
Mr Hampden.] This was thought, by the King, of great weight and consideration. Two things in these Letters are clear; the intended Invasion, and a Conspiracy in England. They are no fictions, nor Plots forged upon you; but has there been more Money given than is needful? You have given great Sums, and great Sums, I find, have been employed. In the Civil Government, not half has been applied to it, but to the public Charges. The King, I may say, has robbed himself to supply the Public. You say yourselves, the Fleet cost you 1,300,000l.—The Civil Government, the Money for the Dutch, and that borrowed of the City. This is but head Arithmetick, but I say this in general, that there is not so much mismanagement, nor miscarriage of the Sums you have given, (and gives a large Account of the Revenue.)
Mr Leveson Gower.] The honourable Gentleman has proposed nothing. I should be glad to hear of something of what is wanting, and where it may be had.
Mr Hampden.] I have told you the danger, and the King has sent a Letter to have your assistance. Pray tell the King how the French shall be kept out. One thing I will propose; put the Militia in good Order, and what the King wants supply him with.
Mr Smith.] No doubt the King desires your advice to extricate him out of his danger, but I think the Accounts proffered to be showed us are not so proper at this time. The Army is upon the Roll 60,000 men, and I can make it appear, that there are not 40,000 men; so there is something struck off in the charge. I know no way to secure you, but to secure the most considerable Papists in England. I would know why Persons have stopped the Lieutenancy of Middlesex from seizing Papists, and taking away their Horses? I should be glad to give Money—King James takes Estates in Ireland; I know no better way than to seize their Estates, like him, for your use, and I doubt not but those will supply you for the present.
Mr Howe] I hear it said, "there is no Money misplaced." I would hear how it is applied. I shall give it more heartily though not so discreetly as those who were of King James's Council, and now in Council and Employment. I would know the retarding of the Fleet, and the relief of Ireland. I believe those about the King do tell him. We see miscarriages; they cannot be at our doors, nor the King's. There are several in Council, not our Friends. He that was against abdicating King James, and "the throne not vacant," is not fit to be trusted in King William's Council.
Sir Thomas Clarges.] By what we find from these Letters, we ought to provide for our security; but to have a sad tale told us, and Money at the end of it, is very extraordinary. Let us have the state of the monthly Revenue— All you have given will come in neat Money at St John come twelvemonth. I am not given to farming, but, I believe, the Money in the Poll-Bill may be rated at 600,000l. You are told by Hampden there is need of four Million; is that for four Months charge? Let us see our fair monthly charge; it seems so great; and yet the poor Irishmen are not relieved. We have had War with France and Holland, and not still "Money, Money, Money." I have those Accounts, and could have produced them, if I had thought of this. The Revenue this year is 17, or 1800,000l. I hope, the Customs and the Excise will answer the Expence in the largest extent. I do not desire the Crown should be straitened, but all we have given is not to be spent in three Months, and more Money for that which is given already, to set things on the wheels till we meet next. Let the Country breathe a little, I pray; though all the Money is not paid out of our Lands; yet the Farmers have paid their Polls. We are trusted by the People with their Estates, and their Lands; let leave be asked, according to Order, for a Motion for Money, and not be brought in by surprize.
Sir John Thompson.] I do not wonder that Gentlemen of the Treasury move for Money. 'Tis an odd way this, to ask Money for Holland, when the danger is in Ireland. Pray let us know what is in the Treasury. In Monmouth's Business, there was 400,000l. given to suppress it, and the Money is scarce paid in to this Day—If you will have an account from Persons in Office, how fit it is for your serviee, pray consider of it.
Sir Christopher Musgrave.] I will not take upon me to say how Money has been employed; of that I know not; but we are past Money, sure, now. The whole Scheme of it has been before you. The Revenue has been paid, and that is considerable. You compute for the Navy but from March, and in Winter, when all comes in, then it is time to think farther of Money. I hope such an Army, with the Militia we have, and the Fleet, may hinder all Invasion, if we are so great in force; and we hear nothing of the Holland Fleet, nor our Alliance with them—There can be no occasion for Money till winter.
Mr Smith.] We are told, in the Letters, of a Conspiracy, and I wonder all should be strangely ended in Money. The Papists are all Conspirators, and ill Protestants join with them. As has been moved, I would have the Papists seized, and I would address the King for a Proclamation limiting a time for those with King James: Recall them by a day limited; if they surrender not themselves, seize their Estates. Let us know why orders to seize the Horses and Arms of Papists have had counter-orders. If that was done, I doubt not but the King may appear at the Head of the Militia, as well as at the Head of a standing Army.
Sir William Williams.] You have had it proposed, by Hampden, "Advice and Assistance;" Advice what to lay before the King—'Tis no time to form a Law for the Militia; let us make use of it as it is; you ought to execute the Laws as they are, and let them form the Militia as well as they can; there are men enough in England to defend themselves, and Money enough. If we must send abroad for men, we are in a miserable condition. If there be men and Money enough, nothing remains but management. I have heard very little to-day but what I heard a week ago; there wants nothing but management. I would have a Committee of Lords and Commons to sit in the interval of Parliament, to manage affairs.
Mr Garroway.] I never heard of such a Proposal as this is for Lords and Commons, &c. to take the Government out of the King's hand. We have heard little to-day but what we heard a week ago, and it weighs little with me. Let us know who returned the Horses and Arms taken from the Papists—And now we talk of the Militia. I would address the King to know who ordered these Horses to be delivered back again to the Papists.
Col. Birch.] When I speak for Money, I would lay the fault where it is. I will not talk of Account of Money now. 'Tis pity these brave Fellows in Ireland should be deserted; we are likely to lose those 10,000 brave men, to our shame all the World over. It is said there is a boom cross the River to Londonderry (fn. 9); a new fashioned thing! We are told by the Letters, "That about the time King James should come to it, it would be delivered up." This I say, 'tis a sad Case they should be eaten up in the North, when, at the Narrow Sea, they may go over into Ireland twice a Day. I wonder, notwithstanding this boom, we land no where else. Let them waft over, and cut this boom in pieces; there is no great force with King James. This may be done, and this is advice; and if with our men we cannot go ashore near, in eighteen or nineteen miles going they may go ashore; and if you do not land men, never think to regain Ireland.
Mr Hampden.] Gentlemen seem to be displeased that Persons are not removed. As for myself, I would willingly resign my place, but I would have such Persons named as Gentlemen would have removed. The City, upon these Letters (it may be) will seize the Papists and all suspected Persons that may disturb the Government.
[An Address was ordered to his Majesty, desiring that the most considerable Papists, with their Arms and Horses, may be seized.]
Thursday, June 20.
Debate on the Lords Amendments to the Bill of Succession resumed.
Serjeant Wogan.] I think the Lord Mayor and Nobility in Town should be joined with the Lords of the Council to tender the Declaration and Subscription. I think it not safe in the hands of the Lords of the Council of the last demised King only.
Mr Foley.] Here is a Power in the Bill vested in the Privy-Council, to declare that the next Heir shall inherit, &c. the Crown. I would commit it.
Mr Howe.] I think, this Bill will not give satisfaction to the Nation; it excludes all Commoners from tendering this Declaration, if none but the Lord Mayor be admitted. If the last House of Commons were to be summoned, it would content the People.
Sir Thomas Clarges.] To have the last House of Commons sent for, would have great inconvenience in it. The Custom is, upon demise of the King, that the Nobility meet, and declare the Successor, as it was done in the Case of Queen Elizabeth. I think it very well, for such of the Nobility as are at hand, and the Lord Mayor, to declare, &c. and then that Commissioners be sent to the King.
Sir John Guise.] I am not for the Lord Mayor to represent the Commons of England. I think this King came to the Crown as well and as rightfully as any of his Predecessors, and he did send for all the Lords and Commons to consult them, and so you will approve what is done yourselves. If not absolutely necessary, I would not have Commissioners sent to the King: I think the Crown of England is worth coming hither for. I would not put the Crown into the hands of a few.
Mr Howe.] I think it no great matter if the Clause were cast out, rather than to have Commissioners to bring in what King they please.
Mr Sacheverell.] This is a matter of great Importance; here are more things than one, and this Clause will not do. In the same Clause they are kinged and unkinged again; and an intermission of Interregnum during the time of swearing. I think it fit for a Committee.
Mr Hampden, sen.] I am for committing the Clause, by reason I would make as few differences with the Lords as I can. This Bill I take as a confirmation of what we have done, when the Crown was presented to the King and Queen What would be the Consequence, if the Lords should not agree with you? (As I hear, the Bill for settling the Crown escaped narrowly, for a Clause in it was carried but by two votes) But this is in majorem cautelam, or confirmation of what you have done; it would weaken it all, and much hazard it; unless absolutely necessary to differ, I would not, but pray commit the Clause.
Mr Sacheverell.] As to the other Amendment, should you agree with the Lords in this, the Dispensing Power is confirmed, for the future. If thought necessary, there may be a Bill to dispense in some Cases, &c. but of those but a few. If any can be so dispensed, it is not fit a Judge should chuse what Laws are fit to be executed, and what not. If you say in a Bill what Laws are fit to be dispensed, and what not, then it is for the safety of all England.
Mr Garroway.] If you agree with the Lords for what they have done already, and exclude the Judges, you cannot punish them. I would not agree.
Mr Ettrick.] You heard, the other day, that in Hales's Case, the Judges did agree, "That the Law was the King's Law, and he might dispense with it;" and seeing you can find no qualifying Clause in this, I see no other way but by Bill. In the mean time I would disagree with the Lords.
The Speaker.] You cannot now amend your own Bill, but you may qualify the Lords Amendments.
Serjeant Wogan.] In the 28th of Henry VIII, the Lord Chief Justice, &c. were excepted from the Circuit in the Place of their Birth and Residence; and it is hard, on the other hand, that the King cannot dispense in any Case. Perhaps the Sheriffs attend the King, or this House, so that if the King could not dispense with their residence, they would be in an ill Case; if the Star-Chamber were up, they might be fined. Sometimes a Jury may be head-strong, and find it Murder in the Person whom he killed se defendendo; you will, by it, restrain the King from all Mercy, and especially in the Case of Mercy, it is against the nature of all Government.
Sir William Williams.] I am for agreeing with the Lords. If that stands for Law, that the King can have no Power to dispense in any Case that can happen, then perhaps you will find that the Subjects shall suffer more in this than in the Dispensing Power. Because Pardons have been abused in Impeachments, shall the Crown have no Power to pardon? 'Tis as necessary for the People as eating and drinking. People will necessarily stand in need of Pardons. I would not clog this Bill for Limitation of the Crown with this. It will be more natural in a Bill by itself. No man in the House, nor in the World, but will think this necessary in a Bill. It will have free agitation in this House, and before the Lords. I would agree with the Lords.
Sir Thomas Clarges.] 'Tis now six weeks ago since this Proviso was tendered, and the Gentleman told you it was necessary in five or six Cases. It seemed, at the Committee, the King had that Power, and, in all Debates, that that might have been done. For the King's Power of Pardoning there is no doubt; but I say, by the Law the King has no Power of Dispensing. He has none by Statute-Law, that we know, nor by Common-Law. In Non obstante's, they say, why may not the King dispense as well as the Pope? This is of vast consequence, and, I believe, the Lords have advised with the Judges about it; but at a Conference, we shall show, how convenient it is for the King to dispense in case of a Misnomer for Murder—The Judges are going the Circuits, and the Attorney-General may easily consider of it, to part with this Clause, so dismal to our Liberties; and, I hope, you will agree with the Lords.
Mr Attorney Treby.] I shall endeavour to rectify a mistake; you are told, "the Bill was drawn by the King's Counsel." If you can show such an Order, I will draw a Bill extempore. If the Lords have made an Order for the Judges to inspect the Bill, much more is it incumbent upon you. As for drawing the Impeachments, I can never do it till the Committee will meet; and as for the King's Power of Dispensing, it is said, "He can neither do it by Common nor Statute-Law;" for Common-Law there is nothing above Henry III.—'Tis said, though that be convenient, yet it was before—For Statute-Law it is plain, that by many [Kings] this Power has been executed, and without reproof of Parliament; I believe it. Judge Hale gave Judgment of Dispensation in the Case of Thomas and Sorrel; but if enquiry be made, and you find it founded originally upon no solid bottom, nothing but a Parliament can say, that is not a Law convenient to be used. A stone ill placed in a wall at first may be mended, but you would not undermine the Inheritance of Persons. In Hanson's Case, a man was supposed to be murdered, and was not; therefore there was a reason why the King should pardon him; and it must be taken for Law, because a continuance of practice. You say, "The late King did use that Power of late, and dispensed in a Case not dispensible;" not to John and Thomas, but all the people at once. 'Tis said, "That, if we do not something in this, we acquit all the Judges of what they have done, and condemn ourselves"—There is not one word of retrospect in the Bill; but it says, "From the first of June no Non obstante, but as formerly;" all the proceedings of the Judges are in the same state as before. When reading will satisfy, I need not speak; pray read the Clause.
Mr Sacheverell.] I hope Treby will justify me, that I attended the Committee. As to this other, I would know how came the Clause of Non obstante, if the King could dispense without it? For the time past, I am glad to put up with a great many Injuries done us, only to prevent for the future.
[The Clause was ordered to be committed.]
[June 21, Omitted.]