Tuesday, April 20.
[A Bill for restraint of building, inmates, and inclosures, near to
the cities of London and Westminster, was read the first time.]
Mr Waller.] The law favours buildings. If you build
with another man's brick or timber, the law gives
you damage for it, but not the brick and timber. Again tis said "that these buildings make poverty."—We are undone in the country, without building—And
yet not build at all. The relief of the poor ruins the nation—By the late Act they are hunted like foxes out of parishes, and whither must they go but where there are
houses? We shall shortly have no lands to live upon,
to relieve them, the charge of many parishes in the country is so great.
Mr Sawyer.] The Act for settlement of the poor, does,
indeed, thrust all people out of the country to London.
This Bill remedies the matter—By this increase of building, in a while the people will come into such disorder as to
destroy the buildings themselves.—Is for retaining any Bill
of public semblance, but is against erecting of offices in the
Bill. That statute against tippling (now the licencing is
set up into a kind of office) without restraint, is of no use.
(fn. 1) ] Sixty years experience has made it evident,
in fact, that rents have increased the more for building
houses. In his memory there are not half the houses in
London that were before. London has more inhabitants
than before the fire—The circumference must be subservient to the center.
Mr Jones.] If increase of buildings makes the houses
in London of better value, 'tis a great paradox. Where's
the demonstration? Is it because rents fall every day?
But if this Bill be so much against law as to give right
away, is against it.
Sir Nicholas Pedley.] 'Tis said that the buildings are
not a nusance at common law. In Q. Elizabeth's time,
they were judged a nusance, and in King James's time.
Not by statute.—But when a thing grows too big and inconvenient, 'tis a nusance. The builders have been pardoned by Act, but for the future would prevent it.
[Resolved, That this Bill be withdrawn, and that a Committee
be appointed to prepare and bring in a new Bill, upon the Debates
of the House, to restrain the farther increase of building near the
cities of London and Westminster, and to remedy the inconveniencies occasioned thereby: And that it be referred to the same Committee to inspect the Statutes relating to the relief of the poor;
and of the Statute of the 5th of Eliz. and all other laws which
relate thereto, and to bring in a Bill to redress such inconveniencies as they find in these matters.]
Sir John Prettyman's case, being a Member, and detained [prisoner in the King's Bench] upon execution [was reported by Sir
(fn. 2) .]
Mr Sawyer.] Whether this case be of the nature of
privilege, or upon being outlawed before his election, is
the question. To the law of Parliament the case of privileging belongs. But as to reason, no prescriptions show
that ever it was done. Prorogations are of the nature of
several Parliaments, and privilege commences as if it
were a new Parliament 13 Hen. VIII. And in Plowden's
Commentaries 79, being of the same nature with those
cases of judgment and execution in time of prorogation.
No injury can, by privilege, be done to an innocent person; your subsequent privilege cannot do wrong to another, a third person. Should it do so, the inconveniencies
were great. In effect, by allowing privilege in this case,
you make "privilege of prorogation" equal to "privilege of adjournment." If you deliver a man in ex
ecution, 'tis against what the law has vested the party
in, and he loses also all the charges he has been at.
There are judgments in the Case—31 Hen. VI.—The
Speaker (fn. 3) was then taken in execution, in time of prorogation. 'Twas debated and referred to the judges, and
reported by them to be according to law of Parliament,
judged in the House of Lords. 'Twas then ruled that
the Speaker should not be discharged; and the Commons
thereupon chose a new Speaker. It may be objected,
That this was a judgment given by the Lords.—But 'tis
answered—The Lords were then the proper judges of it,
but the judgment was confirmed by the Commons. Many
cases that may be instanced, were in the time of privilege,
when wrong was done by the aggressor.—To what purpose
has the House, at any time, debated limitation of time of
privilege, if out of the time you deliver the party?
Martin's case 28 Eliz. There was then a case when a
Member was taken within "14 days" on a prorogation, which was then the time of privilege. But about
"20 days," upon report of Ferrer's case, it divided the
House in opinion, whether a time should be asserted, or
not, for privilege, or defined. The first question was,
Whether the House would assert a time? 'Twas resolved
"No,—but a convenient time." The next question was,
Whether Martin was taken in that convenient time?
"Yea". But whether the party should be punished, because
the case was doubtful, was the great objection. There is
the same reason for the one as the other, that the Member might attend the House without disturbance. Before
any person fits, he has privilege. The true reason why
the person in execution should not be delivered, as the
case is stated, is that the party should not be left remedyless.
1 K. James—Sir Robert Shirley was in execution in the fleet
four days. There was a Habeas Corpus granted to bring
him to the bar. 'Twas then declared there should be a Bill,
for the jailors and sheriff's indemnity. It provides that he
may be taken again, after the session is over, "after
"Parliament." No punishment for procuring such an
arrest as that is.
Sir John Birkenhead.] Would know whether Prettyman is in execution for a debt owing to any of your
members. That may alter something of his case.
Mr Sec. Coventry.] In case of a Peer's eldest son arrested in execution for debt, if his father should die, and he
become a Peer, he shall not come out of prison. And
will you set up your privileges higher than where privilege is born with a man, and yet he cannot be taken out
of execution? Take heed what ye do.
Sir Richard Temple.] All the ancient precedents, before the Statute of 1 King James, will not be of any great
use in this business. Formerly the House had power of
punishing the prosecutor that put the party in prison, but
had no power to release the party. Thorpe's case was a
distinction between a debt to the King, and one to the
subject, and yet has been over-ruled since. All precedents before 1 King James, are out of the case. The
preamble of the Act is general and universal. Sawyer
mistakes the case, for by this Statute "when privilege
shall cease, the party shall be in execution again, all
proceedings remaining as they were before," and so
persons concerned not be put to any new trouble of process.
Would have one instance, let a Member's taking be when
it will, that ever he was detained, the Parliament sitting.
'Tis said, the party has an interest in the prisoner; so has
the public likewise, and before the party had any, and
you will not send a new writ, to chuse another in his stead.
The case is of great weight, and he would not subject the
keepers of prisons to any action of escape, but believes
that persons taken in prorogation have been delivered out.
The reason is the same whether the party is attached, the
Parliament sitting, or not.
Col. Strangways.] We grant privilege in an adjournment. This case is privilege in prorogation. The privilege continues while he is a Parliament-man. Upon
delivering him, the Parliament sitting, the Sheriff is cleared [by] the Statute of 1 King James. By suffering him to
be detained, you deprive a county, or a borough, of a representative.
Sir Wm. Coventry.] 'Tis a tender argument to speak against the privilege of this House. Parliaments now are of
longer continuance than formerly: and therefore 'tis an argument not to extend them more than formerly. The
Member's (Prettyman) council quoted no precedents in the
case to the committee. But something so applicable from
the bar of the "case of a Peer's son" that he thinks we have
no reason to extend our privileges more than they do. No
man will doubt but that there is such a sleeping of privilege in
prorogation, which, if awaked, must have power, not only
to stop, but to reverse the course of law, or the next step
to it, if it rises. If a Member be enlarged by privilege,
it is restrained to those cases where, by that privilege, he
might be before the Statute. You may say, that he may
serve the execution again, when the Parliament is dismissed
—But can the party catch him? He that took him before was innocent, and he must catch him. It may be he
has nothing responsible for the debt, neither goods, nor
lands, and nothing but his person to be had, and this
privilege is during the whole Parliament. What may be
the consequence of this? You would have often remedied buying of places in elections; this privilege will be a
temptation to do it still, all debts being paid by privilege. This may tend to sending hither the most unfit
men in England, and to put men upon breaking to be
here. Let us not give occasion to people abroad to say
we are rather extending than straitening our privileges,
and never explaining them.—Considering especially, that
men, by death of witnesses, (our privileges being longer
now than formerly) may lose their lands, as well as their
debts, and therefore would not agree with the Committee
to send for Prettyman out of custody.
Mr Swynfin.] Agrees with the latter part of Coventry's
speech, "That titles and estates may be lost by death of
witnesses, when privilege continues long," and "that it
it may be an invitation to bad men to come into Parliment." So that if any act of compassion to the subject
could be made, to suspend privilege in some cases, would
be glad of it.—But in this case of Prettyman's, believes it
a right, and that when a Member is chosen, the town
and the house have a right to that privilege. 'Tis granted that any Member, during sitting, has privilege; but here
is the question, Whether a Member taken in execution
out of privilege has the same right of being released out
of prison, as in privilege? If it be allowed, how will it
be answered upon an original writ out of time? If you
make precedents in one case, you must do it in another.
The objection of "a Peer's son," spoken of, is not this
case; his father living when he was in execution, he had
no title to the Peerage, but this man has. The Lords cannot make him a new title. The reason of privilege is the
public service of the house and place he serves for.—But
one objection.—"Privilege is just such a thing as is found
by precedent, and we have but one precedent that gives
light, and that is Thorpe's case, the Speaker." If this precedent had been since that Statute of 1 King James, no answer could be given to it; but it was before. But how
appears it that there were no more precedents in the case?
The reports are short; it appears not plainly that such as have
been imprisoned were in time of privilege, but clear that they
were delivered, the Parliament sitting, which then sat not long,
and this case before us could not then arise. For as to the
proviso in that Act to save the officers harmless, it may be
out of privilege as well as in.
Mr Sacheverell.] Thinks not this case so different from
Thorpe's case as is imagined, nor that of a Peer's son so
different.—A Peer serves for himself.—If this releasing
the person to attend here were to debar a man of his
debt, would be against it. If his estate be not capable to
make restitution, and he have neither land nor goods,
it seems an Act of malice to keep him from hence.
Sir Thomas Meres.] If a man must be detained upon
execution, tho' not mere process, 10, 20, 30 useful members may be taken out, to the destruction of Parliaments.
Sir Robert Howard.] Finds that we have nothing to resort unto in this business as a clear precedent.
Mr Serjeant Crook.] Did he think that this was lex
et consuetudo Parliamenti, would not speak against it.
He thought this case of Thorpe a settled and quiet case
long. He was Speaker, and taken in execution, and a
new one was chosen, before the Statute of 1 K. James. If
once a Member taken in execution, were let out, or escaped,
he was never to be taken again upon the same execution.
It is urged that the kingdom loses a Member; you will
allow breach of the peace above any privilege of Parliament.—The keeping the peace, the very being of the
kingdom; there is no supersed as against execution,
the very life of the law. Not morando, eundo, redeundo, lex Parliamenti, being the usage of Parliament. In so
great a case as this, he doubts himself, in what he delivers, this place being the best school, and must learn here.
Before 1 James, the person in execution being delivered,
the sheriff brought his action against the jailor, and it
was a crime and incapacity to take him again. Would
not agree with the committee.
Col. Titus.] 'Tis no argument that you should take away
this privilege, because it is inconvenient. Are there not
greater conveniencies that balance the inconveniencies?
You may be deprived of many Members of Parliament.
Men may be clapped up that are against a Bill to be presented here. Better far a mischief on particulars, than
an inconvenience in general.
The Committee was agreed with for the discharge of Sir John
Prettyman. [On a division 143 to 67]
Wednesday, April 21.
In a Grand Committeen on the Bill of Popery. The clause for
their discovery. Debate upon registering them at the Sessions.
Sir William Coventry.] The fear of driving Papists out
of England is none at all. In Queen Elizabeth's time
there was as zealous prosecution against them as now, and
yet they were not driven out. As to the matter of easing
them, what you have put upon them, or can, will not rid
the nation of them. And now is an unseasonable time for
registering them at sessions, if you think their numbers may
encourage them. You openly and barefacedly besides encourage them to persist in their religion avowedly;
and 'tis as much encouragement as is given to the Protestants. It lies in the power of our own clergy to detect any Papist whatsoever. In London, indeed, they remove often, and 'tis not so easy to do it; but out of it, in
country parishes, not a minister in a parish, but knows
who is suspected for a Papist, or Fanatic. If my Lords
the Bishops will give it in charge to their Clergy, and the
encouragement of better livings for the minister's being
active in it, or encouragement from preferments in the
King's gift, this will operate not only for suppressing Papists but Fanatics.—Though this discourse be fitter for
the convocation, yet, having no call thither, he says this
here. If the Church of England will promote discipline
according to law, they may exceed even the Fanatics
themselves against Popery.—Does not reflect in this, as if
the Church was not zealous.—He has never been at mass
nor conventicle, and so may speak his mind with the
more candour.—He believes that our Church has preserved
more decency of ceremonies, than any Church whatsoever,
and are so much the nearer the Church of Rome, they carrying some resemblance of theirs; therefore 'tis absolutely
more necessary for our clergy to carry the stronger opposition to Popery.—He has been formerly for the bill to
ease dissenters, the more to strengthen our Church.—He
speaks not this out of ill will to the Papists, but for the
preservation of our Church.—He thinks this register may
have more honourable ways, and be less subject to scandal, looking like toleration.—The composition (fn. 4) formerly
made with Papists "to exempt them from farther prosecution," the next Parliament said, looked like toleration.—It may make them bold-faced.—In Queen Elizabeth's time, many came to church and occasioned compliance, and has reason to believe that a Church Papist may
at last be a Church Protestant. If it be not their interest
it may be ours that they should come amongst us.
Mr Garroway.] Unless you distinguish what you have
now of Papists, and what may be for the future perverted,
the bill will be of little effect, and no way to do it but by
a register. If you make the default of registering their
names, at the quarter-sessions, a forfeiture of their whole
estates, you may save the Clergy the labour of presenting
them. We have fears of Popery, and fears of France,
for they draw on one another and are alike to him.
Would have this registering singly applied to the Romish
religion, and no other dissenters—But of that hereafter.
This registering cannot countenance Papists, for he would
have it "that whoever shall be hereafter perverted, his
"estate shall go to the next a-kin, that is a Protestant;"
which will be penalty sufficient for not registering their
names, and for not being sheriffs and other offices, would
have them pay a fine—And sees no danger in the register.
Sir William Coventry.] Temple desired "to know the
"Papists, to suppress them"—but we know them already,
and all this while suppress them not. He thinks the
matter of ease to them, by registering, is not at this time
seasonable, but what they shall pay for offices is not yet
revealed to us, nor many other things.
Mr Garroway.] All those of the Romish party that have
made estates over in trust, will be upon register, and they,
and their estates, the more easily found.
Mr Sec. Coventry.] You find great jealousies of them,
and therefore "nothing to be done to them" looks like
an encouragement. He would not have laws made,
never to be executed. He would go between the two opinions of severity and remissness in dealing with them.
Though he may have the luck of them that do so. Their
attempts of abolishing the government were the cause of
their severity against them in Queen Elizabeth's time.
Would distinguish between Papists of this world, and
those of the other world. Some are in potentiâ proximâ,
and would distinguish such as will not have any dependence on the Church of Rome as to the government
they live under, and such as will. These sort of men
are in a sad condition; you ease them not here, and they
shall be burnt there—Would have some mark upon
them, but not registering in general.
Sir William Coventry.] Shall always be as ready to make
his apology to any Gentleman, to convince him if he
can. What is the ease spoken of is not yet discovered, and
can say nothing to it—But generally would ease their
persons, and suppress their religion as much as he can.
Sir Edward Dering.] Though he speaks with great deference and respect to the movers of the register, yet he
thinks you not ready for the question to be part of the
bill. For in registering a man's name, as proposed, he
exposes himself to all the laws in being. So the first
step to this register must be to revoke those laws. Some
alleviation of those laws most incline unto, but would
have the thing clearly opened, and not pull down one
house before we have another.
Colonel Titus.] What expect you by registering?
That men should tell you we are liable to all the penal
laws in being, against Popery. 'Tis, confess, and be hanged. Untill you tell them what ease they shall have for
doing so, 'tis too soon for the question.
Sir Thomas Meres.] Moved that the Attorney General
might not enter a Nolle Prosequi.
Which was, together with the Debate, referred to a Committee to draw up a Bill accordingly.
Mr Powle.] Reports Dr Burnet's (fn. 5) examination at the
Committee appointed for the address about the Duke of
On the 27th (fn. 5) last, Dr Burnet was, by Mr Secretary Coventry, ordered, in the King's name, to go 12 miles out of town. The
occasion was from some words Burnet should say to a Peer, which
were by him denied; whereupon Burnet petitioned the King, but
was, by the Secretary, ordered 12 miles (fn. 6) out of town; speaking
with the Secretary again, he told him "that the King's pleasure
"was changed from the 12 miles, to forbid him the Court" Since,
the Duke of Lauderdale, in company of the Arch-Bishop of St.
Andrews, and the Bishop of Salisbury, said "he would push the
"punishment farther."—That, in 1672, he attended the Duke of
Lauderdale, at Holy-rood House, to intercede for some conventiclers,
his kindred, and told him "he feared if the security was great against them now in the Dutch war, there might be rebellion."
The Duke of Lauderdale replied "he could wish that those rogues
would rebell, that he might send for some Irish Papists to suppress
them."—As to the matter of the Scotch army, he is free to speak
of what others were present at, as well as himself; but what passed between the Duke of Lauderdale and himself, desired to be excused till the utmost extremity.
Mr Secretary Coventry.] Told Burnet "That the
King had received some ill impressions of him for medling with affairs which concerned him not, and 'twas convenient for him to go out of town."—Thereupon Burnet desired to speak to the King, but the Secretary answered "he was not his accuser nor condemner, and could
not dispose of the King's audience, but he would present an address from him to the King." Burnet sent
his petition, and Coventry delivered it. Burnet soon after
desired the matter in writing, which Coventry delivered
him from the King (fn. 7) —Coventry told him "he would not
put the King's words in writing he had not from his
mouth" and denies any order he had "to forbid him
the Court." That belongs to the Lord Chamberlain, or
Vice Chamberlain. He only advised him to absent himself.
[The Debate was adjourned to Friday.]
Thursday, April 22.
There having been a motion made at the beginning of the session that certain records relating to the King's passing such petitions (so styled anciently, (now "acts") as should be presented him,
should be searched, and reported, [the translations of several
Rolls brought in from the Tower, were read and delivered in this
day,] which were the following.
>Rotul. Parl. 2 Ric. II. Num. 28.
"Also the Commons supplicate, because petitions and bills put
in (or into) Parliament by divers persons of the Commons cannot
of the same, before this time, any answer have;"
"That of the petitions and bills put in this present Parliament,
and of all other petitions and bills that shall be put into (or in) Parliaments in time to come, that good and gracious answers and remedy
to (or of) them be ordained before the departure of every Parliament,
and on, or of this, due estatute be made in this present parliament, and entailed to remain for all time to come, if you please."
"It pleaseth the King that all such petitions delivered in Parliament, of things which elsewhere cannot be determined, good
and reasonable answer be made and given before departure of Parliament."
Parl. 36 Edw. III. No. 9.
First, "That the great charter, and charter of the forest, and
the other statutes made in this time, and in the time of his progenitors, for the profit of him and his commonalty, be well and firmly kept, and put in due execution, without putting disturbance of
making arrest contrary to them, by special command, or in any other manner."
"Our Lord, the King, by the assent of the Prelates, Earls,
Dukes, and Barons, and the Commonalty, hath ordained and established that the said Charters and Statutes be held and put in execution, according to the said petition."
Rotul. Parl. 4 Hen. IV.
To the thrice excellent, thrice renowned, and thrice gracious
Sovereign our Lord the King. Your poor Commons pray that
the Statute made in the first year of the reign of the Noble K. Edw.
your Grandfather, containing, "That none shall be distrained to
go out of their counties, but only for the cause of necessity, of
sudden coming of strange enemies into the realm;" and the Statute
made in the 18th year of the reign of your said Grandfather,
"That men of arms, hoblers, and archers, chosen to go in the
King's service out of England, shall be at the King's wages from
the days they do depart out of the counties where they were chosen;" and also that the Statute made in the 25th year of the reign
of your said Grandfather, "That none be compelled to find men
of arms, hoblers, nor archers, others than those which hold by
such services, unless it be by common assent, and grant made in
Parliament," shall be firmly holden and kept in all points safe,
without being broken in any manner."
"And that none of your said Commons be distrained to go into Wales, or elsewhere out of the realm, contrary to the form of
the Statutes aforesaid, and that all the convictions and writs made
contrary to the said Statutes, and all the indictments and accusations, obligations, and tyes made by colour of the said Commons,
and writs, with all their dependencies and circumstances thereof, may
be revoked, cancelled, quashed, and annulled for ever, as things
made against the law; and that they may not be drawn into example in time to come. And if any of your liege people be imprisoned, by force of your said indictments, or accusations, that
they be presently delivered, and the said indictments held void."
"The King consenteth to this law, with this, That always, by
force or colour of the said supplication, or of any Statute thereupon to be made, the Lords or others, that have lands or possessions in the country of Wales, or in the marches thereof, shall in
no wise be excused of their services and devoirs due of their said
lands and possessions; nor of any other devoirs or things to which
they, or any of them, be especially bound to our said Lord the
King; though that the said Lords and others have other lands and
possessions within the realm of England. Nor that the Lords and
others, of what estate and condition soever they be, that hold by
escuage, or other services due the King, any lands or possessions
within the said realm, be in no wise excused to do their services
and devoirs due of the said lands or possessions. Nor that the
Lords, Knights, Esquires, nor any other persons, nor any of them,
of what estate or condition that they be, which hold, or have of
the grant, or confirmation of our said Lord the King, lands,
possessions, sees, annuities, pensions, or other yearly profits, be not
excused to do their services to our said Lord the King, in such
manner as they are bound, because of the lands, possessions, fees,
annuities, pensions, or profits aforesaid."
These records were first moved to be inspected by Mr Sacheverell, and also that they might be printed, but that, by some, was not
Mr Sacheverell.] If it give offence I will not press
the printing them. But thinks the gentlemen near the
King concerned in the advising the last prorogation, and
therefore moved that of 2 Richard II. to be printed. Some
of the other records are printed, and some not. In Rushworth's Collection, the arguments 5 Caroli one of them
made use of in print. The King's Counsel, in the conference, then made exceptions, but admitted them to be law.
In the construction they differed, but agreed them to be
as they stand.
Mr Serjeant Maynard.] Is certain that some of these are
printed, and some left out. The printed: "No man
shall be compelled to bear arms; the commissions for so
doing void (not printed) when enacted that none
shall go out of his country but on the Kings wages."
If this passed as it is printed, what should become of all the
tenures? The omission of the printing these is of more
advantage to the subject than the King.
Colonel Titus.] Thinks the record of no moment, and
no reason to spend time on it, now so many things of consequence are upon your hands. There is something of
more consideration than either grievances, religion, or property; your safety, to be considered before all things—
He takes the Kingdom to be in a dangerous condition, both
as to friends, enemies, and allies. Were we ever in such
a condition of potency of our enemies abroad? Suppose
a man's house in an ill condition, and he calls his friends to
advise about the repair of the breaches of it. One finds
fault with the wainscot, another that the panes in the windows are broken, the other is for ordering the cushions in
the chapel right, but says another, "Your timber is rotten,
and the house ready to fall down." And says one, "Your
house is beset with thieves and robbers. "In the mean
time the servants are drinking in a room, and the soberest
in the house are falling out about religion. If this be the
condition of the house, how many years purchase would
you give for it? Would resolve the House into a Grand
Committee to consider of the safety of the nation in
the condition we are in.
Sir Nicholas Carew.] Titus has omitted one thing;—servants together by the ears, who should cheat their master
Colonel Titus.] Moves that aspersions may not be in
debates. He is the King's servant, and, if there be any such
cheats, begin with him, or where you please else. But his
motion, if observed, brings all cheats into consideration.
Sir Thomas Lee.] One way to secure the nation is to
quiet peoples minds, and that is to keep men at home from
service beyond the sea—And would have the state of the
navy considered on Saturday. If the stores be full, 'tis
very well; if empty, it will be no secret here, our neighbours may take notice of it.
Colonel Titus.] Neglect this, whilst your neighbours
make such preparation, where will you be four months
Sir Edward Dering.] Decay of seamen is not to be remedied; ships may be built in few months, and stores
Mr Sec. Coventry.] How hospitals have been managed,
and what money has been spent which ought to be to
maintain the lame soldiers and widows, is worth your enquiry.
[Resolved, That the farther consideration of the matter upon
the translations of the Parliament-Rolls, be adjourned untill the
Committee have perused and made their report upon the Statute
Debate on the Militia.
Sir Samuel Barnardiston.] Complains of money raised
in the county he serves for (Suffolk) by order of the Deputy Lieutenants, for the Militia, and no account given
Sir Thomas Meres.] Supposes that the Law for the Militia
provides against this. They that do so may be indicted
at the sessions. They are to be at muster fourteen days,
at several times; but we are fonder of another sort of soldiers. He would have no more of them at Black-Heath.
Sir Thomas Clarges.] There are two defects in that Act.
The one "the weeks tax, (which in Berkshire they have levied of the year passed) in arrear", and, in another clause,
in Corporations and Cities the levies ought to be as
formerly"; which is ambiguous.
Mr Powle.] Reminds you of an army upon the same
continent that may invade you at home, meaning the
Scotch army, (which is "to obey the orders of the Privy
Council there.") They may order that army hither. Accounts for his county are duly delivered in at the quarter
sessions, and yet money is lost and embezled, notwithstanding all the care that can be taken. But would not have
the consideration of it go to the Committee, as is moved.
The Trained bands else may soon degenerate into a
standing army. Always, till this Parliament declared it,
the Trained bands were kept as a secret how to be imployed. Would have only limited instructions to the
[A Committee was ordered to inspect the former laws relating to
the Militia, and to report the defects, abuses, and grievances to
Friday, April 23.
The Address concerning the Duke of Lauderdale debated.
Mr Dalmaboy.] The Duke was not present at that Parliament in Scotland that made the Militia Act; he, in the
next Parliament, settles the pay to 6d. a day for a foot soldier, and 18d. for horse. The officers all named by the King.
Asserts that it was Lord Rothes who was Commissioner
when that Act passed, and desires the Acts may be read.
Mr Sec. Coventry.] You give your opinions with reasons, which you strengthen by matter of fact. If the King
should ask you, Whether the D. of Lauderdale was heard,
or no, before you made the address to him? We are in
the nature of accusers, and the King the judge. Will
you accustom the King to this way of proceeding,
to condemn a man without hearing him? Would hear
Sir Nicholas Carew.] Coventry says "we accuse and
the King judges." When we accuse the King may hear
him. We are in the nature of a Grand Jury.
Sir Thomas Lee.] This is no accusation, but a pure petition, that the King would deliver you from your fears,
and you give him your reasons for it—Knows no occasion of hearing the Duke of Lauderdale in this business.
Sir Thomas Meres.] You deny his removal for these
reasons, and those that are for common same have it.
The very words in the address are taken out of the ancient record itself.
Mr Dalmaboy.] Gives an account of the manner of passing laws in Scotland, to show that Lauderdale could not
be the sole contriver of this Militia Act.
Sir Joseph Tredenham.] If any other persons have done
ill, let them be named (Mallet making general reflections)
The first head of the address is upon what Lauderdale
should say in the Council, witnessed by four of your Members. Different in some circumstances, though they agree in the main—The other relating to matters in Scotland. You are told "that 'tis the custom of Parliament
to give the party accused notice of his accusation;" and
this you have not done.
Sir Thomas Lee.] Takes him down to Orders. This is
against your vote, to hear Lauderdale now. It may cause
the withdrawing your address.
Sir Joseph Tredenham.] Are you accountable for all the
Acts you move for here, and by the concurrence of all
parties concerned?—If so, great men are the most unfortunate—All we complain of are Acts made in Lord
Sir Edmund Jennings.] To the Edicts. Remembers, at
the last session, this person and others were before you—You heard them, and found them not guilty of promoting
Popery—You are speaking as things now stand—It is notoriously known what labour the Council has had to establish
religion—Never were greater endeavours, wherein this
Duke has been notoriously industrious (laughed at) and has
had his share therein—Then it may be reasonably asked,
how this accusation will be consistent with the present affair? If you accuse him, it must be with retrospection—
But for the present state of things, he knows this Duke has
been instrumental to suppress Popery.
Mr Garroway.] You are now making an address which
you have had no answer of—It may be Lauderdale has
been a month of the opinion mentioned—Pray God he
may be a month longer so!—This justifies what you did
the last session—Now you give reasons for what you then
Sir Nicholas Carew.] Thinks Lauderdale more culpable now, than he was before the Declaration—He found
it lately not for his turn and then he's against Popery.—Would have neither the Church of Rome, nor the Church
of Scotland, near the King.
Mr Sawyer.] On this head your address is already voted; for the matter of it was the first and only ground for
your address—A prior reason—But as to the form you
may alter it—" Amongst those who have advised your
"Majesty, we find none more, &c."
Mr Sacheverell.] Would have it altered thus "We
find just reason to accuse" instead of "more reason to
Sir Richard Temple.] Would leave out the general
words, and restrain it to the Duke of Lauderdale only.
Sir Thomas Lee.] Would have "the Declaration, in
terror to your Majesty's good people."
The Scotch law of the Militia was read.
Sir Lancelot Lake.] The Scots engaged against the
King formerly by their oaths, and they are, he thinks,
Scotchmen still, and would not believe them, though they
take the oaths in the Act.
Mr Powle.] Now that the two crowns of England and
Scotland are united, here's an Act whereby they may invade England—It may be justly thought that the chief officers in Scotland are the promoters of this—And Lauderdale is the sole manager there, Principal Secretary—Is
the more induced to believe by that clause in the Act, of
the power the Privy Council there have upon the soldiers—Especially considering that several of the Privy Council there have been turned out, that opposed this Act—
He likes neither an army of Irish Papists nor Scotch Protestants—And thinks this a good ground of an address
for removal of the Duke.
Mr Sawyer.] If there be any thing in the Scotch Act
for invading England, he is against it—But observes that
if we assign an ill reason for a thing, though it be so,
we teach to deny. Let us consider if there be any thing
in these acts that are of terror to England; and then, if
so, who had a hand in them. The Acts seem to him to
be pure Acts of Militia, and no constituting an army to
invade England, but regulated as your Militias are here,
and therefore necessary and legal—But if they differ from
our Acts and way of Militia, 'tis no crime—They differ,
it seems to him, only thus: Our soldiers, though removed
out of one county into another, yet they are not to go
out of England—If your Acts had given liberty for the
soldiers to be drawn out of England, they had been as
these Acts in terminis.—At the common law, tenures
were bound to go with the King into Scotland—The power of contracting for soldiers to go with the King out of
England is still legal. Hen. VII. If the King go beyond
sea in person, those who are bound by Patent to attend
him, are obliged to go with him, and those powers you
have not taken away—These Scotch Acts are but a pure
licence to carry these soldiers out of the kingdom to repress rebellion and insurrection—'Tis true, there are some
clauses which impower the drawing them out "where
the King's honour, &c. shall be concerned".—But still
'tis true they are but Acts of licence.
Sir Henry Ford] Does not remember any unwarrantable Act done by the Duke of Lauderdale in procuring
this Militia Act. In the late times, in the several accusations against persons, no man was accused for procuring
an Act of Parliament—'Tis like an accusation of poisoning the sea—But where is the ill consequence of this Act?
—Titus told you his mind in a parable—Many men without doors are of his mind—Some are of opinion to build
your walls, and it may be higher and bigger than your
enemies—But suppose you should think it necessary to
form an army, what has Scotland to do with that?—You
will make Lauderdale have more friends than enemies by
Sir Thomas Meres.] These words relating to "the
King's honour" in the Scotch Acts, are to be interpreted by the Council of Scotland, and they have authority to
send these men into England, which gives the exception.
Sir John Talbot.] There is a third Act which explains
the other two Scotch Acts of the Militia.—Desires it may
Sir Thomas Meres.] This was moved at the Committee,—and then they would have prevented any Act if it
had been produced.
Sir Nicholas Carew.] This Act that Talbot mentions
confirms and relates to the other Acts, and therefore
Sir John Coventry. Our whole business is to remove
this person from the King—We are not so much looking
into Scotland, but to our own safety—He sits counsellor
here, and must eight counsellors of Scotland have power
to send an army hither?—Hopes that neither Scots nor Irish Papists shall be sent hither—And moves for the address to be voted for his removal.
Which was voted accordingly, and is as follows.
"We your Majesty's most dutiful and loyal subjects, the Commons in this present Parliament assembled, do, with humble thankfulness, acknowledge your Majesty's care for the safety of your
people, in calling us together at this time to consult of the best
means for the preservation of our religion and properties; and tho'
we have great cause to rest assured of the continuance of your
Majesty's gracious disposition towards us, yet we find, upon a serious examination of the state of this kingdom, that there are great
jealousies risen from some late proceedings, in the hearts of your
subjects, that some persons, in great employment under your
Majesty, have somented designs contrary to the interest both of
your Majesty and your people, intending to deprive us of our ancient rights and liberties, that thereby they might the more easily
introduce the Popish religion, and an arbitrary form of government
over us, to the ruin and destruction of the whole Kingdom."
"Amongst those who are at present employed under your Majesty, we have just reason to accuse, for a promoter of such designs, the Duke of Lauderdale, lately created Earl of Guilford;
because we have had it testified in our House, by several of our
Members, that in the hearing before the Council, of the case of Mr
Penystone Whalley, who had committed Mr John James, contrary to
your Majesty's Declaration of the 15th of March, 1671, he, the
said Duke of Lauderdale, did openly affirm, in the presence of
your Majesty sitting in Council, and before divers of your subjects then attending there, "That your Majesty's edicts ought to
be obeyed, for your Majesty's edicts are equal with laws, and
ought to be observed in the first place", thereby, as much as in
him lay, justifying the said Declaration, and the proceedings thereupon, and declaring his inclination to arbitrary counsels in terror
of your good people."
"And we are farther confirmed in this opinion by two late Acts
of Parliament, of a very strange and dangerous nature, which we
have observed amongst the printed Statutes of the Kingdom of
Scotland; the first whereof was in the third Session of the first
Parliament, held there under your Majesty, Chap. 25. And the
other in your Majesty's second Parliament, Chap. 2. The like
whereof have never passed since the union of the crowns, and are
directly contrary to the intention of an Act passed here in the
fourth year of the reign of King James, for the better abolition of
all memory of hostility, and the dependences between England
and Scotland, and for the repressing of occasions of discords and
disorders in time to come; and of a like Act, passed about the
same time in the Kingdom of Scotland, by force of which said
late Acts there is a Militia settled in that Kingdom of 20,000
foot, and 2000 horse, who are obliged to be in readiness to march
into any part of this Kingdom for any service "wherein your
Majesty's honour, authority, and greatness, may be concerned,
and are to obey such orders and directions as they shall from
time to time receive from the Privy Council there." By colour
of which general words we conceive this realm may be liable to
be invaded, under any pretence whatsoever. And this hath been
done, as we apprehend, principally by the procurement of the said
Duke of Lauderdale, he having, all the time of those transactions, been principal Secretary of the said Kingdom, and chiefly entrusted with the administration of affairs of State there; and himself Commissioner for holding the Parliament at the time of passing
the latter of the said Acts, whereby the providing of the said horse
and foot is effectually imposed upon the said Kingdom, and this
extraordinary power vested in the Privy Council there: And we
conceive we have just reason to apprehend the ill consequences of
so great and unusual a power, especially while the affairs of that
Kingdom are managed by the said Duke, who hath manifested
himself a person of such pernicious principles."
"We do therefore, in all humility, implore your sacred Majesty,
considering how universal a same and clamour of the said misdemeanours runneth openly through all your realm, That for the
ease of the hearts of your people, who are possessed with extreme
grief and sorrow to see your Majesty thus abused, and the Kingdom endangered, that your Majesty would graciously be pleased
to remove the said Duke of Lauderdale from all his employments, and from your Majesty's presence and councils for ever;
as being a person obnoxious and dangerous to the Government."
Lord Cavendish.] Informed the House of one Hamilton
who held a Thesis at Leyden, of a strange nature, against
the present government, De Ærario publicæ necessitatis,
for which the Duke of Lauderdale procured him to be
knighted, and he was presented with 500l. for it; and
an office given him of Secretary of the inspections in Ireland—Would have Dr. Burnet called in, who is at the
door, and interrogated about it.
Sir Nicholas Carew.] An arbitrary Duke may cause Dr
Burnet to be hanged, drawn, and quartered, when we are up,
for informing us—Therefore as we may punish Dr Burnet,
if he refuses to speak his knowledge of what we shall ask
him, so desires the house may protect him, if he rightly
Mr Vaughan.] Dr. Burnet comes under as high an obligation before us, next an oath, that can be—You cannot
indeed extort a question from him, but you may punish
him for refusing to answer what you shall interrogate him.
Sir Nicholas Carew.] Would have him told the power
Sir Thomas Lee.] Moves that you mention the
words that fell from him at the Committee who drew the
address, for removal of the Duke of Lauderdale, which
are the occasion of his being sent for hither.
Dr Burnet was brought to the Bar.
Then the Speaker admonished him, That he was sent for
to speak his knowledge to what he should be interrogated. He then was asked about the words which fell from
him at the Committee, and told the power the House had
to punish him, if he refused to answer, or prevaricated.
Dr Burnet then said "That when he was sent for to the
Committee he told them, "what others knew as well as himself he would declare, but humbly begged pardon if he did
not inform the Committee what passed in private discourse betwixt himself and the Duke; there having been
some difference between him and the Duke, it might
be thought done in revenge"—Would willingly prevent ill
things—but, with all humbleness in the world, begs pardon of the House for his silence, and submits it to the
sense of the House."
Then the Speaker asked his knowledge about Sir Robert
Hamilton's Thesis at Leyden, De Ærario publicæ necessitatis.
Burnet said, "He had not read it till within these eight
"days." And withdrew.
Sir Nicholas Carew.] You have heard Burnet's answer,
and desires the opinion of the House to his declaring the
discourse betwixt him and the Duke of Lauderdale—He
believes it to be something of a high nature—Would call
him in to declare what he knows, which, if he refuses,
would send him to the Tower.
Sir John Hanmer.] It is an ill precedent for a man to
be put upon declaring private discourse—Would not
have him sent for in.
Sir William Hickman.] This is not a private matter—It
concerns the Public, and would have him sent for in.
Mr Sacheverell.] Fears that Burnet comes a fishing to
know whether you will have any from him. If the matter
he knows be dangerous, he ought to reveal it; if not, he
is in no danger, and of which you are to judge.
Mr Vaughan.] The common safety is the cause. Counsellors reveal their secrets in their closets, not in the streets.
"That it is not for Burnet's honour to say what he
knows" is no argument, when he seemed to insinuate
something more he had to say—For the danger of the
discourse betwixt him and the Duke he is no judge of.
Dr Burnet then was again called in.
And the Speaker told him, "That the House was not
at all satisfied with his answer, but believes he knows
something important that fell from this Lord, which, if
he concealed, he must expect to be proceeded against accordingly."
Dr Burnet then said, "He shall always pay obedience
to the authority of this House, as becomes him. He never
heard the Duke of Lauderdale say " That he intended
to bring the Scotch army into England," but the
Duke once asked him, "Whether he thought Scotland
would assist the King, if he needed them, about supporting the Declaration?" To which he indefinitely answered, "He thought they would not." The Duke replied,
He thought they would, and that they would bring a
great many with them." This discourse passed betwixt
them the first Saturday in September, 1673, in the
Duke's dressing room, at the Gatehouse, in Whitehall.
Sir Thomas Littleton.] Burnet tells us, this was the substance of his discourse with the Duke; but would have
him called in to inform them the circumstances likewise,
which will much enlighten the thing.
Mr Vaughan.] Would know whether he came casually
to the Duke, or was sent for by him.
Colonel Strangways.] Would have him asked what Declaration he means?
Sir Eliab Harvey.] Would have him asked, what he
does know as to other matters?
Mr Garroway.] About that time he came over out of
Scotland, you were about the Declaration—If you
have a mind to the thread of all the counsellors that
advised this Declaration, possibly he may give you some
light—Would know of him whether he was sent for, or
whether this was an accidental discourse.
Sir Rob. Howard.] Would have repeated to him what
he has already said, that he may explain himself farther.
The Clerk, who was ordered to form what Dr Burnet had given
an account of at the Bar, did read it to him, which Burnet did avow, and is as follows:
"That coming into England, out of Scotland, the first Saturday in September 1673, he went to visit the Duke of Lauderdale,
at his lodgings over the Gatehouse in Whitehall, where the Duke
and he discoursed of the affairs of this nation, and of Scotland, and
particularly concerning the proceedings of Parliament touching
the Declaration for suspending penal laws, in matters ecclesiastical,
and being afterwards asked, "Whether if Scotland being called in
to assist the King in supporting the said declaration, they would
assist him or not?" he answered "He thought they would not."
But the Duke replied, "He believed that they would, and that
their coming into England would bring a great many."
"That the Duke asking him of the affairs of Scotland, he answered, "The people of Scotland, that were at such a distance,
could not imagine what to think of the King's Speech, and what
was afterwards done concerning the Declaration." Whereto
the Duke replied "They have all forsaken the King except myself and Lord Clifford
(fn. 8) .
[The Debate was adjourned to Thursday.]