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, February 6.
Sir William Waller attended the House, and gave this account of Mr Brent, viz. "That, by common same, Mr Brent was a very obnoxious person. He went to Sir James Smith, and informed him, that he was a great criminal, and desired his Warrant to apprehend him. Accordingly he was apprehended, and he desired Monsieur Bentinck to acquaint the Prince of Orange with it. Mr Harbord brought him word, that the Prince would have him proceed against him as the Law would bear. He took Major Wildman's advice: He could not charge him but upon common fame, and, in general, that he was an obnoxious person, and corresponded with Priests and Jesuits, and was busy in regulating Corporations; the truth of which was notorious, and doubted not but to produce evidence of it. He said, he could not commit him to Newgate, but would to the Marshalsea. He told him, Mr Bradon might probably make something out against him. He asked Smith what was become of the Prisoner? He told him he had great friends of some Lords, who would appear for him, and he could not refuse him Bail. Those Lords he had done some kindness to, and they had sent to him."
Sir James Smith brought a copy of the Bail, and the Mittimus, viz. "To receive Brent into custody for High Treason, in corresponding with Priests and Jesuits, and subverting the Government, in advising Quo Warrantos against Corporations." There was no proof made of any particular thing against him, more than what was brought in by Waller.
Sir James Smith.] I took 1500l. Bail in all, which I did by the advice of the Recorder, who said, 1000l. Bail for Brent, and 500l. for the Sureties, was sufficient. At present, I do not remember the person who came to me from the Lords, but had seen him several times. I did not ask his name.
Sir Robert Cotton.] Lord Delamere was accused of Treason in the King's-Bench. I was one of his Sureties in 10,000l. Bond. He was afterwards committed to the Tower, and brought his Habeas Corpus, and then was bailed in 20,000l. Bond, with Sureties; and Smith has bailed Brent in this small sum. This rising and falling of Bail is remarkable.
Sir George Treby. (fn. 1)] I was in hopes you would have called me to rise, because my name has been used by Smith. I will give you a true account of this matter. Coming out of the Court of Aldermen, Smith asked me "what he should do with Brent, whether he should bail him? There was a great complaint against him, but no Evidence: Whether he should bail him, or no, and what Bail he should take?" I told him, I wondered there should be no Evidence. I advised him to keep him in prison for a reasonable time, and give notice to the Prosecutor to bring Evidence. "You may apprehend him, and keep him in custody till the Prosecutor produce his Evidence, and Examination had; but longer than that you must not detain him. And this not being pursued, he must be bailed, and, in strictness, he ought to be discharged. In all Bail, the Condition of the person is to be proportioned. If there be no Charge upon Oath, the Bail may be the less. If he be kept a reasonable time, and no Prosecutor appears, it is reasonable to bail him." The case appears thus to be: A man charged or chargeable with Treason, the Prosecutor brings no Evidence, nor can have any. If I had said more, I had not exceeded the Law.
The Speaker.] You find absolutely, that the Commitment was for Treason. If a Felony be committed; and common same be upon a person, it is justifiable to commit him. Whether Smith hath done what he should do in this matter, I leave it to the House to determine. I question whether, if he bail where it is not justifiable, he is not fineable in the King's-Bench.
* * * * * * *] Smith aggravates his crime by his Warrant, which specifies Treason expressly. And he did Brent wrong, unless he had ground sufficient for it, I desire a course may be taken with him by this House.
Sir George Treby.] I see myself reflected on. I shall answer for myself: I had no Fee in this case; and if I had, I should be satisfied, when I die, that it was well taken. It has been my custom, if I could not serve a Cause, to return that Fee. I have had the honour to be a Member in this place these twelve years. I have had offers of preferment to the best Office of the Law, coloured over with telling me I was a man of Parts and Law, and steered to the Protestant Religion; but I would then take no Place, and no Bribe. They pressed me farther, "Will you truly preserve the King in his Prerogative?" I not only lost all advantages for my non-compliance, but was in danger of my life too—'Twas the Question, "What said the Recorder in the Popish Plot?"—I defended the Charter of London, and the case of the Sheriffs of London. They told me, "If you will be easy, no Place shall be too good for you. You shall be Chief Justice of Chester, Master of the Rolls, &c." This shows at what rate they would have purchased Betrayers of the Liberties of their Country. I was not only exposed to the frowns of the Court, but purchased their indignation, that I was an enemy to the King and Government. I was always against a Popish King, to get a Popish Parliament; and thought all would be destroyed, unless a Popish King was destroyed. This I have done, and thus I have suffered; and would not have Perjury in my pocket for the Empire of the World. After all I have done and suffered, now to say, "I have advised to take Fee-Bail for a Malefactor," what a little perfidious thing would this have been? I am concerned not to be reproached nor exposed for my faithfulness to the Government.
Sir Robert Clayton.] If there has been any corruption in this matter, it lies in another place. The Recorder is not so weak as to do it. I would have Smith committed, not by us, but by a Justice of the Peace.
Sir William Williams.] I hear it said, "We cannot commit a Delinquent." If we do not lay hands on Smith, it may be of pernicious consequence. I would commit him to the Tower, and the Commons may justify it.
Sir John Guise.] I would not do too much, nor too little, in this case. Smith was to blame not to commit Brent for so great crimes; and he might have called another Justice of the Peace to his assistance. I would have him left in the Serjeant's hands, and I hope you will not let him slip, without putting him into the Serjeant's hands.
Sir Thomas Lee.] You are making a question, what Power the House has, and what to do with this man— I shall inform you of the practice in former times— In order to Impeachments, you have committed men, and when they have broken your Privilege, and in order to bring a man to the House of Lords to be tried, &c.
Sir Thomas Lee.] I would remind Clarges, that, at the Tryal of Lord Stafford, Members withdrew to take Informations upon Oath. The consequence fell out to be, Sir William Pulteney took the Examinations, the Lords pretended Jurisdiction in it, and the House lost a point.
Thursday, February 7.
Earl of Wiltshire (fn. 2).] Now that the Lords have agreed "the Throne vacant," I hope you will proceed to fill the Throne. The persons formerly named are the most proper that can be thought of, the Prince and Princess of Orange. I have not parts able to set out their merits, and what we owe this great Prince for delivering us from Popery and Slavery; and there is no way to secure us from the return of it, but by placing them on the Throne, and to preserve the ancient Government. You have been told here of going about to make this an elective Government; but I believe nobody here is of any other opinion, but that the Government is in King, Lords, and Commons.
Mr Palmes.] I rise not to oppose the Motion, but to hear what the Committee will report of the Preliminary Heads. I know not whether you will preclude the Committee, by going so soon to this Vote. They are preparing the Heads, and will be ready with them presently.
Mr Wogan.] Before you proceed to the Article of Investure, let the present nomination of the Prince and Princess of Orange be for life, &c. and the Heirs of her body, not as it was in Philip and Mary.
Mr Boscawen.] We are upon as great an affair as ever was before a House of Commons; and I hope we shall be unanimous. It concerns us for the dignity of the House. It is worthy your consideration, whether you will call the Committee down, or stay till they have done.
Mr Hampden.] Do not any thing in haste. I would let the Committee consider well what must be for the benefit of all posterity, when you are dead and gone; and I hope your Resolutions and Rules will be orderly. I believe all the Gentlemen are agreed what to do; but things of this nature cannot be done as with Counsel in a Chamber, and a Clerk only to write. In so great a business, pray let us do orderly things. You may call to the Committee, to see what they have done; or you may order them to go on, if they have not finished.
"Resolved, by the Lords Spiritual and Temporal, and assembled at Westminster, That the Prince and Princess of Orange shall be declared King and Queen of England, and all the dominions thereunto belonging."
"I A. B. do swear, that I do from my heart abhor, detest, and abjure, as impious and heretical, this damnable Doctrine and Position, that Princes excommunicated or deprived by the Pope, or any authority of the See of Rome, may be deposed or murdered by their subjects, or any other whatsoever: And I do declare, that no foreign Prince, Prelate, State, or Potentate, hath, or ought to have, any Jurisdiction, Power, Superiority, Preheminence, or Authority, Ecclesiastical or Spiritual, within this Realm. So help me God.
"That these Oaths be taken by all persons, when tendered to them, of whom the Oaths of Allegiance and Supremacy —— (fn. 3) be abrogated."]
Sir George Treby reports Heads from the Committee (fn. 4), &c. The Committee were divided in opinion, whether you should declare "That no Pardons should be pleadable to an Impeachment in Parliament," nor would countenance Pardons to persons who may not have deserved them, nor for recording the Heads in Chancery, till you resolve what use to make of them.
Sir Robert Sawyer.] Now you are providing new Laws for your future safety, 'tis proper to mention a new one, viz. "That no Popish Successor shall be capable to inherit the Crown of England, and no Papist capable of succeeding to the Crown."
Col. Tipping.] If the Prince and Princess of Orange and Princess Anne die without issue, the Crown will descend to the Queen of Spain, and the Pope may dispense with Religion, and the Dutchess of Savoy. Therefore I move, "That none that have been Papists shall be capable to inherit the Crown."
Lord Dumblaine.] King James has had the misfortune to go out of the Throne. I have been always against electing a Monarch, and against coming into a Commonwealth; therefore I would first fill the Throne. It cannot be filled unless vacant. I ask pardon for my mistake the other day, in my Vote, "that the Throne was not vacant." I have great obligation to [the Prince] and have showed my duty to him—You cannot do too much for him.
Sir Robert Howard.] I would leave out the word "shall, &c." There is a great deal of difference between one that turns when the ground is falling under him, and one that longer since has given good testimony of his Religion. I would not have you so penned up as to exclude all possibility of conversion.
Mr Sacheverell.] I would go farther than to declare the Prince and Princess of Orange King and Queen: I would declare who shall have the Administration of the Government, if they divide; and then, whither the Government shall go after. I would never leave it precarious.
Mr Paul Foley.] I second the last Motion. If the Prince and Princess of Orange be declared King and Queen, in the nature of joint tenants and survivorship, and not in intention to put by the Lady Anne, I agree to it. I would have them declared for their lives, and the longer liver of them; and declare the Entail afterwards.
Sir Richard Temple.] I am ready to agree to fill up the Throne, as the Lords have proposed. If you declare any body King, the question is, whether you will not come too late. I thought it your intention, when you filled the Throne to do these things, which will be too late afterwards. You are told, when once the King is in the Throne, without Limitation, it is to him and his Heirs. If you declare them King and Queen, either the Prince is in right of the Queen— How will this be understood? If he be King de facto, it is more than you intend. Such Limitation as to preserve the Right to the Princess and her Heirs—I would stay there, but let the Committee add, "We know none so fit as the Prince and Princess, and therefore we take the Crown to be fitter to be trusted with nobody than him who has delivered us." If they be declared King and Queen jointly, no Dispatch nor Letter can be sent but must be jointly by the Prince and Princess.
Mr Sacheverell.] I do not suppose this Instrument of Government to be a new Limitation of the Crown, but what of right is ours by Law. Settle us in such a state that we may desire the Prince of Orange. We should make no Conclusion before the Premises are agreed.
Sir Thomas Lee.] The matter singly before you is, the Report from the Committee. It proposes a method of Declaration of the Rights of the Subject to go along with the Declaration of filling up the Throne, and there it will fall naturally. I would adjourn till to-morrow, and postpone the Clause of the Crown. As to what fell from Sawyer, if you adjourn the Debate, then the next thing will be to fill the Vacancy; and then how far this nomination of two persons who shall have the Administration of the Government, that there be no stand in the Government, shall extend, whether in his own right, or in right of his wife. 'Tis absolutely necessary, when you agree with the Lords, to explain yourselves in the Limitations.
Mr Hampden.] I agree with Lee to come to a resolution, before you send to the Lords, after filling the Throne, and the Oaths being considered. 'Tis not only honourable but safe, and no dreadful consideration in it; it may be soon done: But do not pass it first, and explain it after.
Friday, February 8.
Serjeant Holt.] As far as I understand the Question, I would concur with the Lords; but the Vote stands in need of an Addition, or Explanation, as to the Administration of the Government. Suppose only the Prince of Orange as Husband to the Queen; he would have the Administration, as the power of the Husband over the Queen, as Queen Mary, notwithstanding these Articles. Then if the case be so of the King only as Consort, it will be much more when the King is joint tenant. But to prevent all doubts, I would have the sole Administration of the Government in the Prince of Orange, otherwise there will be confusion in the Government; one may command one thing, the other another; and who shall be obeyed? And the Government may be lost. I move, therefore, that the Prince of Orange may have the sole Administration of the Government during the Coverture. 'Tis necessary that you come to express the Limitation; unless you do so, some may make construction that she is Heir to her Ancestor, and the Crown descends to her; therefore it is necessary to declare that the King and Queen, and the Survivor of them, have the Administration of the Government. What Estate then has the Prince in the Crown? He will have an Estate of Inheritance without Limitation. If one sits in the Lords House by Writ of Parliament, if it be without Limitation, his Heirs shall sit after him. I presume it is not your intention, that the Limitation shall be to the Prince's Heirs by another wife. 'Tis your design to secure the Nation against Popery, and the ill consequences of it. Therefore I would express the Limitation mentioned, and so shall you show your regard and kindness to the Royal Family, and you will be vindicated from all aspersions abroad of destroying the Royal Family. The Prince has hazarded all for us; and if you make him Consort only to the Queen, you will reduce him, upon her death, to a private condition. And this will be no gratitude to him that has redeemed us from our misfortunes. Therefore I would limit the Crown to him for life, (as above;) and thereby you will lay a foundation of security to the Nation.
Sir Thomas Littleton.] If the Administration of the Government should only be in the Prince, the great design of the Kingdom will be frustrated. The power of the Parliament of England being once asserted, it will establish our foreign affairs. If it be not a time now to strengthen our Interest against France, we shall never be preserved, but fall into the same misfortune we were in, in the late King's time: And I would have Ireland inserted into the Lords Vote.
Mr Boscawen.] I am not against inserting Ireland; but observe that the Debate be whole. But why will you leave out France, Jersey, Guernsey, and Sark? I would put it into the former style, France to precede Ireland; let it be drawn into form by the Long Robe, as to Entail of the Crown, and all the rest that follows.
Mr Hampden.] If you go on thus from word to word, you will lose all your time, and change often. I would debate it first, and then, upon the inclination of the House, draw it up according to your Amendment. I would not leave out France, valeat quantum valere potest, and the Limitation of the Crown, as has been proposed. Gentlemen may debate upon it as long as they please, and then you may draw up one entire Vote.
Sir Richard Temple.] If after Debate you shall have such Amendments as cannot be made at the Table, then some Gentlemen may withdraw to form it. None of the Motions are opposed, to continue the Regal Style and Title still to all the Dominions mentioned. If all are agreed in the main, some Gentlemen may withdraw to put it into form.
Mr Garroway.] This must be commited at last, but let the Debate go on, to give the Committee a handle to proceed upon your direction, and it will go current. The Lords have voted' "That the Prince and Princess shall be declared King and Queen of England."
Sir Thomas Clarges.] The Question is agreed; but I would debate the Qualifications. 'Tis moved, "that the Administration of the Government shall be for the Prince's life." Suppose, upon any military occasion, the Prince should be out of the Kingdom, shall not the Administration, &c. then be in the Princess, during that time? The Act of Parliament of the 1st of Philip and Mary is worth your consideration. I would look over that Statute; and I think what I offer is fit to be received.
Sir Henry Capel.] I am glad the House is so unanimous in this great affair. Says Clarges, "In the absence of the Prince, the Administration of the Government should be in the Princess, &c." We have seen that case, and it is no extraordinary thing at all. 'Tis necessary that the Administration be in one man, and no person in Europe more fit than the Prince. I offer only, because several Entails are mentioned, "that after the Prince and Princess, to the Heirs of the Princess; and for default of her Heirs, to Princess Anne, &c; then, after her Heirs, to the Heirs of the Prince of Orange; and after them to be left indefinite."
Sir George Treby.] As to Clarges's Motion of "the Prince going out of the Kingdom," there is no great need to provide for that, for the Law has done it already. The King may constitute a Locum tenens, and 'tis most probable he will constitute his Consort. In the Limitation of the Entail of King Philip and Queen Mary, it was to the Heirs of her body, the Remainder to the Heirs at Law; and now with this special Proviso, excluding all Popish Successors.
Sir Christopher Musgrave.] To the Motions, after the Entail mentioned, I do entirely concur, and then to be left indefinite. As for the other Motions, you may pass them over in silence. I am for the Gentlemen of the Long Robe to withdraw, and pen the thing most to your sense: But it will much expedite the work, if, before they withdraw, you set down the particular Amendments you make to the Lords Vote in your Paper, that they may concur with the sense of the House.
Serjeant Maynard.] Sometimes the persons constituted to manage the Government in the King's absence are called "the King's Lieutenants;" sometimes "Guardians of the Kingdom." Though the King go abroad, yet the Government may go on. I have often seen, when there has been an unanimous consent of the Members in a thing, that Gentlemen need not withdraw, but it may be mended at the Table.
Sir Thomas Clarges.] I know, by the Law of the Land, the King in his absence may constitute a Custos Regni, and in 1 Philip and Mary it was limited by that Act. Consider then, whether it may not be enacted, that the Queen be Custos, &c. in her own right, and not at the pleasure of the King.
Mr Pollexfen.] I know that the Law of the Land has sufficiently provided for the Government, in case of the King's going beyond sea. Here you go about to make an Alteration of the Law, in appointing a Custos, &c. Suppose the King and Queen have a mind to go beyond sea, which may probably happen; or if the Queen cannot, by sickness, undertake the Regency; if the King cannot provide against this, you break into the Laws; the King being actually King, and the Queen actually Queen: Will you alter your Law already made? We are all of one mind; therefore spend no time, but appoint the Committee to draw up Amendments to the Lords Vote — (Which was done accordingly.)
Sir Robert Howard.] I am not for entangling the matter. Though we are in haste to settle the Rights of the people, yet the next best thing is to support them. I would make a declarative part of your known Rights, and cause the Committee to make a Connexion of your Rights.
Sir Richard Temple.] I am for saving time, and explaining what is designed to do, viz. your declaratory Rights you have passed, and those are connected with your Vote; and the Prince has set them out in his Declaration; but where you desire new Laws to be made, it must be done by itself. You will not go up with your Vote to the Lords, to declare the Prince and Princess King and Queen, and nothing with it. If you will give the Committee leave, they will connect it all at once.
Major Wildman.] No man is more zealous to assert our Rights than I am; but consider, if there be such a necessity to send them to the Lords, and they must examine them paragraph by paragraph, and perhaps they may say they have Rights of their own Peerage that are not provided for, in what manner can we concur with the Lords in declaring the Succession? Whether is it not expedient, that this House carry to the Prince our fundamental Rights—And the Lords no way consent—and we never part with one punctum of them—Whether necessary at this time to wave the Lords, and send them to the Prince?
Mr Hampden.] I differ in this of asserting your Rights; I would do it in the best manner. But to object "that time will be lost in sending them to the Lords:"—Can a House of Commons do things as a Warrant from a Justice of Peace is done? Consider the progress of the Prince of Orange's second Declaration—No Remedy but a full Declaration of our Grievances in Parliament: But to go to the Prince alone, without the Lords! I remember, upon all occasions, when your Rights have been asserted, that you have gone to the Lords. King James has done this and this, in violation of them; and you, therefore, present the Prince of Orange with the Crown. Is it not natural to present the Prince with what you are aggrieved with, and suffer, under all these Infringements of your Rights? Yet you delay sending them, because the Commons fear the Lords will not agree to them. When do you think the Lords will agree? Are not the Lords concerned as well as you? And with this prejudice to the Lords, you will send them no Acts of Parliament: You would do it, and have no time to do it. Can it be better done, than when you present the Crown connected with this, because the Prince has protected you, and you have an entire confidence in him? It may be said, you have no great mind to your Rights, for they can stay for them, you see: As you desire the reputation of a grave and wise Council, that represent the Kingdom, let the Committee connect the Heads of the Articles, and represent them all together.
Mr Eyre. (fn. 5)] I would not prevent going to the Lords with the Heads of your Articles. If you divide these Papers, the Lords may agree to us in one, and not in another; and may you not be told, that these things are ancient Flowers of the Crown, and cannot be parted with? I would not have our purchase, like the Indians, to give Gold for Rattles. I would have the King and Queen rule in the hearts of their subjects, and the Harmony betwixt the Crown and the People tune together. Had you given the Committee that power to connect both together, all this Debate had been ended.
Monday, February 11.
Sir George Treby.] I would consent to explain it, but not to leave it out. This Article was put in for the sake of one, once in your place, Sir William Williams, who was punished out of Parliament for what he had done in Parliament; and by divers other arbitrary and illegal Courses. I hope you will not leave out "closeting the Members of Parliament."
Serjeant Holt.] "Informations" cannot stand in the plural, prosecuted in King Charles the IId's time. As for that Prosecution of Lord Peterborough of the Scandalum Magnatum quam tam, &c. 'twas a private Action, and not an Information, whereby the King had no Damage.
Sir William Williams.] All that matter did arise in Parliament, and the Prosecution in King James's time, and I was fined 10,000l. and damage to the Party. There is the case of Lord Lovelace, and the case of Lord Devonshire. The case of Lord Lovelace was upon a recognizance, and he pleaded privilege of a Peer, &c.
Mr Eyre.] I am for asserting our Liberties, but unnecessary delay will wound the Nation we come hither to heal. All we provide for is against Informations for what is done in Parliament. I would agree with the Lords.
Mr Howe.] The door was opened in King Charles II's time, and the goods were stolen in James II's time. As great a door, nay greater, was opened to Popery in Charles II's time than in James II's. And if we may judge greater things by small, under the Popish Kings there was less partiality than those that came in, in their stead. Not to be tedious as well as impertinent, I would leave that clause out.
Serjeant Holt.] I conceive you cannot agree to omit the word "Dispense," which was the great and crying Grievance of the Nation. Especially in the case of Sir Edward Hales, to let in Papists to Employments against an Act of Parliament. From a Dispensation to a particular Person, it would come to a general Suspension. The Lords take no notice of Hales's Dispensation. Dispensation in any case has no solid foundation in Law; it may vacate all Grants. I agree to have the word qualified, but not totally left out.
Mr Finch.] I cannot agree with the Lords in leaving out "Dispensation (fn. 6)." Dispensation was to the Act of Uniformity before Suspension, which was actually done in the Declaration. Suspension had an ill beginning in Error, and therefore had no foundation. 'Tis dangerous to say that all power of Dispensing is illegal; you may undo many persons. 'Tis not a proper way of remedy to say that all power of Dispensing is illegal.