Debates in 1681
March 26th

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History of Parliament Trust

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Anchitell Grey

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1769

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'Debates in 1681: March 26th', Grey's Debates of the House of Commons: volume 8 (1769), pp. 309-338. URL: http://www.british-history.ac.uk/report.aspx?compid=40479 Date accessed: 19 April 2014. Add to my bookshelf


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Saturday, March 26.

[Debate on the means for the Security of the Protestant Religion, and for the Safety of the King's Person.]

Sir Robert Clayton.] I must confess, I have been full of expectation for an Expedient, in some measure to secure the Protestant Religion, and the King's Person, in case of a Popish Successor, and my expectation has been from those Gentlemen who opposed the Bill for excluding the Duke of York from the Succession of the Crown, and I can call that no otherwise than "an Expedient." I have, in my weak judgment, weighed all the Expedients I have heard of, both in the Lords House, here, and abroad, but they seem all to be a breach of the Constitution of the Government, and will throw us all into confusion and disorder. I have heard, that it has been an ancient usage for the Members to consult their Counties, Cities, and Boroughs, in any other matter of weight, as well as in giving Money; and the practice was good, and we can discharge our trust no better, than to observe the directions of those that sent us hither. We, who represent the City of London, have received an Address from the body of that City in the matter of the Bill for excluding the Duke of York. I could heartily wish that some Expedient may be found out rather than that Bill; but if there be none, I must pursue my trust, and humbly move, "That a Bill may be brought in to disable James Duke of York from inheriting the Imperial Crown of this Realm."

Lord Russel.] I have the same obligation upon me, from the County I serve for, as the Gentleman who spoke before me. I have been long of opinion that nothing but excluding the Duke, &c. can secure us. In the last Parliament, we were of opinion, "That the Duke's being a Papist gave all this encouragement to the Plot." Should he come to the Crown, his power will be more, and every day we see the sad consequences of his power. I should be glad if any thing else but this Bill would secure us from Popery, &c. but I know of nothing else that will; therefore I move for it.

Mr Montagu] The Security of the Protestant Religion, and the Safety of the King's Person, are things of so great weight, that we should not have stayed so long as this day, to take into consideration the Exclusion of the Duke of York from inheriting the Crown, &c. I am sorry to hear of the King's giving us Expedients to secure the Protestant Religion: I am sorry to hear that language. This is not to be used as an English Parliament, but a French, to be told in the King's Speech what we are to do, and what not. The greatest Arbitrary Power that can be used in England, is to cow a Parliament, and, it may be, that was the design in bringing us hither. But be we called to York, or all England over, we shall, I believe, be the same men, both as we are here and were at Westminster, in our opinions. When Lord Danby dissolved the Long Parliament, he said, "He had spoiled the old Rooks, and had taken away their false dice." Soon after him, started in new Ministers of State, and they shuffle and cut the cards again, and will dissolve and prorogue Parliaments, till they can get one for their turn; and in this condition we are—As for the Bill of disinheriting the Duke of York, were my Brother or my Son like to ruin my Family, I would disinherit them, and turn away servants that would ruin me. If the Bishops and the Counsellors had spoken plain English to the King, things would not have been in this condition, and they cannot answer deferring our security so long. But neither these Ministers of the Gospel have endeavoured the preservation of the Protestant Religion, nor the Ministers of State the Government, both acting against Religion, and the Preservation of the King's Person. And seeing no Expedient can serve us, but the Bill for excluding the Duke, &c. therefore I move for it.

Mr Henry Coventry.] If you intend to proceed with that regularity and circumspection as ought to be, you have transgressed the Order of the Day already. Several Gentlemen tell us, there is no Expedient, but none tell us what is. All men believe, that the Religion of the Duke is as fatal a thing as can be to the Nation. What does he deserve, then, who perverted him? Let us consider, then, in what depends upon this House, to proceed like men. If it be our opinion that excluding the Duke, &c. be the best way, this House cannot do it alone. If we cannot have that best way, we are guilty to our Country of the consequences, if we take none. Suppose a man be sick, and nothing must be taken by him but by the order of three Physicians; the Jesuits Powder is by two of them thought fit to be given him, but one is against it, and does the duty of his opinion; but because the other two do not agree to it, must the sick man take nothing? We are but one of the Legislative Power. I remember, in the Dutch War, several Expedients were proposed to raise Money, and the House, for the more freedom of Debate, went into a Grand Committee: A man, whoever he be, that proposes an Expedient, will desire leave to make good that Expedient in a Grand Committee; but when it comes to that, if that man have no Expedient, and loses your time, he will be trampled upon. A Grand Committee is most proper for this Debate, and if it should happen which Question should take place, if one be denied, the other may take place, but not any one to be put to exclude the rest, which, if you put a Question for bringing in a Bill to exclude the Duke, it will do—Let it be Exclusion, Limitation, or what it will, your Order is general. Find out a way to secure us from Popery, and preserve the King's Life, be it what it will. When men press on too fast, many times they tire their horses, and come late into their Inn. Let a Committee try Expedients, &c. else it is not consultare, but dicere. I am of a contrary opinion, of debating this matter in the House, for this reason, and if Gentlemen will do reasonably, the House should go into a Grand Committee.

Mr Swynfin.] You have had Motions proposed for Expedients, but there is not a word of Expedients in the Order of the Day, and that answers it. The Order is only, "To consider of Means for the Security of the Protestant Religion, and for the Safety of the King's Person." Those who were here present when the Order was made, have left it free for a Bill, or any other thing, and therefore we are not tied to have Bills, or to offer Expedients against Bills. As for the simile of "the three Physicians," made by the Honourable Gentleman, that two were to administer nothing without the third, though one be for one thing, and another for another, yet if the case be such, that the two offer nothing but what is mortal to the Patient, he ventures to his own disreputation, if he joins with them. However, in our case, the three Physicians do not agree. We never saw any thing from the Lords in answer to the Bill for excluding the Duke, which they threw out, the last Parliament. All the Expedients have been to increase the fears of the Kingdom, and to hasten our undoing; and when all was at stake, the Parliament was dissolved, and that was an ill Expedient. And those about the King who have come over to our opinion of the Bill, &c. are all put away, and those about the King now are for Expedients. The Council of the Jesuits and all the Popish Party have their end, by thus disappointing the Kingdom; and the fears of the people are either that they must take up with a false security for their Religion, as good as none, and so to impose Popery upon us that way, or to bring the Kingdom into disorder; and when Religion and the Laws are at the Duke's disposal, the Kingdom will be in so great disorder, that the Protestants will not be able to enjoy themselves quietly; and no surer way for the Papists to effect their end—For the House to go into a Grand Committee, it is a Motion of great weight; if you deny it, it will look as if you intended to precipitate, and deny free Debate; if you accept it, you lie under delay, and who knows how long time we have to be together? If you were sure of your time to sit two, three, or four months, I would be willing to go into a Grand Committee; but as to the ill umbrage of refusing a Committee, it is not like other cases. I would have an instance given me, if ever it was done in a thing of this weight. This matter in consideration to-day has been in two Parliaments, and the whole Kingdom is satisfied, that nothing but the Bill to exclude the Duke can save us, and it was the opinion of the last Parliament; what reason, therefore, is there to go into a Grand Committee for a thing so often debated? No man can deny, but that a Grand Committee, when there is something offered of an Expedient, is proper, to debate it with the more freedom; but to offer Expedients generally, is as if the thing had never been consulted nor debated before. I never saw any Expedient offered, but this of excluding the Duke, and I never heard of any Reason against the Bill, but "Set it aside, and think of Expedients." Therefore I am for the Bill, &c.

Mr Leveson Gower.] If any Gentlemen have Expedients to preserve the Protestant Religion, without this Bill of Exclusion, they would do well to propose them, and they will deserve well of the House; and if they seem to them to give security, &c. I should be glad to hear them.

Sir John Ernly.] When the Motion was first made for considering Expedients, &c. I did then second it, because of the honour of the Place I serve in. I did understand by the King's Speech, that there were Expedients, &c. I am unwilling to determine the sense of any Gentleman, who am myself of the weakest; but the Motion was seconded, to go into a Grand Committee to consider Expedients; and if you please to do so, I then shall offer you something.

Mr Bennet.] I rise to speak against the Question of going into a Grand Committee. Pray keep to the Order of the Day. Expedients that have been moved, already, are Jesuits Powder for an Ague; but our disease is a Pleuresy, and we must let blood—Let the Expedient go to what will do our business; and, it may be, you must have other Expedients to fortify your Bill of Exclusion. I would have the House rightly understand, that those who are for going into a Grand Committee to consider Expedients, are not for excluding the Duke, and they who are not, are for it; and now put the Question, if you please.

Sir Francis Russel.] A Bill for excluding the Duke is a good Expedient; let both that and others, as they are proffered, be considered.

Sir Thomas Meres.] If but one Expedient be offered, I think it not proper to go into a Grand Committee to consider it; and although this Bill of Exclusion is agreed to be an Expedient, I have known the House, in a business of less weight, go into a Grand Committee. Surely, if it be offered as an Expedient in the House, you cannot but allow that we may make reply, as in a Grand Committee, in fair Debate to answer one another, and if you in the House will depart from that form, the House and the Committee are equal. But our Debate is broken; for one Gentleman said, "He will be content to go into a Grand Committee, if it be not intended for delay." But I do not doubt, but that this day will have its full effect. When on Thursday last it was moved for this day to take into consideration the preservation of the Protestant Religion, &c. it gave a great credit to your work. I would have no discouragements put upon people that have Expedients to produce, by not going into a Grand Committee.

Mr Hampden.] We are perplexed in having several Questions on foot. I must put you in mind that this Bill is no new nor strange thing; and now it is proposed to find out Expedients to preserve the Protestant Religion, &c. Here is a way, by this Bill of Exclusion, that has passed two Parliaments already; a way, that had no reasonable objection against it; and a way rejected in gross by the Lords, in the last Parliament; but I doubt, if other Expedients be tryed, and they prove false, the Protestant Religion will be endangered by it—Some have said, that Gentlemen apprehend they have Expedients; why then, if any be propounded, may not the House judge whether they are worth going into a Grand Committee to consider them? But it is strange that, if Gentlemen may not have it their own way, they will not have it at all. I tell you how this looks; as if a Gentleman has Expedients and will offer them his own way, or nothing any other; he does not discharge his duty to his Country in that. Therefore, if there be any Expedient, pray, without losing time, let it be offered.

Sir John Ernly.] If the House be of the mind not to go into a Grand Committee, I shall offer my little mite; and it is every man's duty to offer you his help. I doubt not but other men have Expedients, and better than I have; but if you go not into a Grand Committee, I shall offer what I have. I do apprehend, that the Bill spoken of is a bar to the Succession of the Duke of York, and to place the Succession in the next Heir. I humbly conceive, that, if you place the Power of the Government in a Regency, and let the Duke of York retain the name of King, it is no new thing. It has been done in Spain, France, and lately in Portugal, and God knows how soon it may be our case. If the Administration be placed in a safe hand, that shall have no power to resign it, and shall have full power and authority, from the death of the King, to call again the last Parliament that sat, and that that Parliament shall have time to sit, to confirm this by Parliament; if such a way can be contrived, I hope it may be done with safety.

Sir Nicholas Carew.] This Proposition is, "That the Government, after the death of the King, may be in the hands of a Regency." I would be satisfied, if the Duke will not submit to that, whether those who fight against him are not Traytors by Law?

Sir William Pulteney.] I think this, that has been proposed, is a matter of weight, and some Expedient has been offered you, but I think as yet but a crude one. I can never imagine an effectual one. Ernly has told you, "That this Expedient, when drawn into better form, he hopes will satisfy." It excludes the Duke of York from the exercise of the Government, and places the Regency in the next Successor, but the Bill for excluding the Duke, &c. in the last Parliament, left the Succession in the Law. But pray consider what is a Regency. A thing never heard of but in a Prince in possession of the Crown, in a Minor, or a Lunatic, but generally very unfortunate. But to talk of a Regency in futuro, in Condition and Limitation of time, I never heard of before. This is an Expedient that does not answer the King's Speech, nor your former Bill—By this Expedient they make the King but a shadow, and divide the Person from the Power. Our Law will not endure it to divide the Person of the King from the Power. Both the Person and the Power will be courted, and who that next Heir will be, I know not. The King, in his Speech, leads you to consider Expedients, but such as will consist with the safety and dignity of the Monarchy. This Expedient must be, to have two Kings at the same time, one by Law, and another by Right. In Portugal there has been some instance of this. That King was put into prison for some personal miscarriages, and his Brother, the next heir, was made Regent: But there is a vast difference betwixt these two cases; the King of Portugal was set aside for personal miscarriages, and not for being a Papist, and that was present, this to be. This Expedient seems to me, to let the Duke in, and then to make a question, Whether Allegiance be due to him, or not? But I am afraid, that, unless we be true to those we serve, we shall deserve a just reproach; and by express directions of those I represent (Westminster) I am enjoined to adhere to the Bill of Exclusion. That Bill has been under the consideration of all the People of England, and perhaps of all the Protestants of Europe. All the wits of learned men have made their objections against it, and yet, notwithstanding, all the people are still of the same mind, that nothing but that Bill can save the Protestant Religion; and now we run upon the most mishapen Expedient, and, it may be, two or three years before we understand it: An Expedient to have an operation no man knows when; of very little weight, unless it be improved by somebody! Therefore I am for the Bill of Exclusion, &c.

Sir Thomas Littleton.] We are flying at a great matter. All conclude, to fight against the Duke, if he be King. God forbid! We have been told by three or four Gentlemen, of directions they have from their principals to adhere to the Bill of Exclusion, &c. and to be against all those things of Expedients. I would not have that way much cherished here. Those Addresses of the Country are uncertain things, and no footsteps remain of any of those Papers from the Countries. I take the meaning of that to be, to go down and consult their neighbours for direction what they shall do. I hear talk to-day of the Parliaments of France, but this way is as dangerous; like the States of Holland, who are to consult with their principals before they resolve. It is a most unusual thing here, and of dangerous consequence—A Regency has been proposed, to secure the administration of the Government in Protestant hands, so as not to alter the Constitution of the Monarchy; and this alters the Constitution of the Monarchy the least imaginable, to have a Regency in room of the King, and the Monarchy goes on. We have had formerly a Regent-Protector, call it what you please, in the nature of a Protector, primus Consiliarius in the case of a minor King; but I propose not this. If you alter the Government, I am against it; but here is offered a Regent in place of a King, or a transferring the Government. But it may be said, "Where shall the Duke be all this while?" That point is pretty well over. The Lords, in the last Parliament, proposed the banishing him six hundred miles from England. The Duke has an Estate in England; he, as all men else do, loves it, and will not part with it by coming into England, against this Law. But your Bill of Exclusion secludes the Duke, and the Crown then is to fall, as it does fall. What then will be the case? You must imagine either that his own Daughter will take up arms against him, if he attempts to regain the Crown, or somebody else will; and this will raise such an anger in the Duke's mind, that where will the People shelter themselves? Not under the Duke's Daughter; they must naturally shelter themselves by running into arms. Cromwell's way to support himself in his usurpation was an Army of 60,000 men. And he did do it, especially when his Army was flushed with victory. And an Army that has got power will keep it—The Nation is not in the condition it was formerly, when great Lords cherished their Tenants, and by good Leases could presently raise an Army, and when they had accomplished what they designed, send them home again—But we are now in another way; raise an Army, and they will think of their own interest how to keep themselves up. But if it fall out to be thus, your Bill will leave this very loose. As soon as this Bill of Regency shall pass, suppose the Regency be established in the Princess of Orange, and in case of her decease without issue, or issue in minority, then the Lady Anne, the Duke's other Daughter, to be Regent, and in the same Law, Commissioners to be forthwith sent to the Prince and Princess of Orange to take their Oaths, that they will take upon them the execution of this Act, and that their Oaths be recorded; you then are not left in that loose manner you will be by the Bill of Exclusion; and it is a far less matter for the Princess to save a Family, before misfortune come upon it, than to take the Government upon her afterwards, in the height of trouble and disorder which may ensue upon the Bill of Exclusion—But it may be said, "What needs all this? It is just nothing but retaining the name of a King, in an exiled man." But it is less violation for her, to govern in her Father's name, than to have the Kingdom given her, from him—It may be wondered why, in Portugal, when the King was to be removed from the Government, there was a great Debate amongst the three Estates of that Kingdom, (though they hold not proportion as they do here,) the Commons were for Don Pedro to be King; the Nobility were for having him Regent only; the Ecclesiastics demurred: But at last both the Ecclesiastics and the Commons came over to the Nobility: But Don Pedro stuck here, and would still leave his Brother the Title of King: He would leave nothing of shelter to force nature too far. I find that there are reserves in the King's Speech, if it be well observed. Another thing may be objected, which is, paying a deference to the Crown for the sacredness of it, for the Government's sake; and that looks like something; and how can we be secure, when it is Treason to take up Arms against the King? But the Duke is like to be five hundred miles off; and how came that Law to be made, that the King and Parliament may dispose of the Succession of the Crown? It was then an opinion amongst Lawyers, that the Crown was unalienable: But when that Law was made, for the King and Parliament to dispose of the Succession of the Crown, that Opinion was damned under a Penalty, though a standing maxim amongst Lawyers. If so, this new Act of Regency will be a warrant to what is proposed, as that was for the other. For my part, I have had the ill fortune to have the wind in my face; to be against the general opinion and stream of the World; and having had no share, for some time, in the Government, I may speak my mind, possibly, more freely than they that have—It is a great Crime to spy things too soon, which makes us apt to run from one extreme into another—I have proposed the best Expedient I can to preserve Religion, and quiet the minds of the people; but I am afraid, if we do nothing at all in this matter (I will grapple with neither of the Expedients) but if we do nothing, but let the thing lie loose, we shall gratify the Jesuits, on the one hand, by our confusion, and the Common-wealth's men to shuffle again, on the other hand; and if you go into some medium, both these men will be undone.

Sir William Jones.] I have heard with great attention this very able and learned Gentleman, and am really of opinion that, if any better Expedient could have been proposed, he, as soon as any Gentleman, would have proposed it; but I am amazed that so learned a Gentleman should not see through this Expedient. That which I take for the Expedient is, "That, should the Duke of York come to the Crown, he should retain the name only of King, and that the next Heir, under the title of Regent, or Protector, should have the administration of the Government." Who does he mean by "next Heir?" For any thing I know, or believe, it may be the Duke's Daughter, but, it may be, the Duke may have a Son. Either I have a great cloud on my understanding, or this is very strange; if the Duke shall have a Son, and shall he at a day, a month, or a year old, be Regent? Suppose the Princess of Orange come over to be Protector to this young Regent, and she die, and leave a child (the Prince of Orange has no right) that child must have a Protector, and so there will be a Protector of a Protector. But we are told, "That it is for nothing, but to keep up the greatness of the Government, that makes them go from the Bill of excluding the Duke to this Expedient." But pray, is it so great and pleasing a thing to wear a Crown, and have no authority nor power? Is it not much worse than to lose the actual Crown and Possession? But if this Expedient pass into a Bill, and the Duke be banished five hundred miles off, it must be out of England, and if the name of King will please him in civility, beyond sea he shall be King, and it is as much to his purpose beyond sea to be called King only, as here: And to tell us, "That the forfeiture of his Estate upon his return will keep him there;"—he that will venture the loss of a Kingdom for his Religion, will his Estate too, and that is but a weak tye. It is less evil or injustice to take away from him both the Crown and Power than to leave him of both but the name. If you allow the Duke the name of King, it will imply a right; therefore that to be used as an argument, is strange. But why is this contention, and all this ado, I wonder, for an empty name? But I am afraid this kind of Expedient is a kind of Jesuits Powder. I do not think that Littleton's opinion or interest is for the Jesuits; but wise men may overdo things sometimes. But if you do not exclude the Duke's title by Law, the Duke is King still, and then learned Lawyers will tell you, that, by the 1st Hen. VII, all incapacity is done away by his being King. If you take not away the descent of the Crown upon the Duke, and the Duke has a title to be King, then, without doubt, all incapacities fail. But if this can be made effectual, I am as willing to exclude the Duke's power as name; but Lawyers will tell you it cannot be done. But there is a great difference betwixt the one and the other. When the Lady comes to be Regent, not only nature, but conscience, will bid her give unto Cæsar his due, being not incapacitated to succeed, and perhaps that Text some of our Divines will preach upon. They will say, "That the Parliament, by what they have done, do acknowlege the Duke to have a good title." But if he be King, as the Parliament allows him to be, in Name and Right of Descent, an Argument like this in Queen Mary's time had like to have restored to her the First-fruits and Tenths. Another thing, perhaps, came from those men who first proposed the Expedient (I will not believe that it originally came from Littleton,) "That if we had passed the Bill of Exclusion in the last Parliament, it would not have been submitted to;" but if this Expedient pass into Law, and the Duke have a Right to be King, and be kept from the Administration of the Government, I doubt whether I shall fight against him. The Papists will say, we have got a Law to separate what is inseparable; and I would, were I as the Duke, have such a Bill to perplex my opposers, rather than a clear one. Littleton tells us of "an Army to maintain the Exclusion, and that that Army will not soon be laid down." But why an Army? People will be sure that the Lady will let her Father in, if he have title; but will the People be sure of their Religion, if he have title and power too? If there must be an Army to maintain the Bill of Exclusion, there must be four Armies to maintain the Expedient. There has been a Protector proposed, &c. not like that of Edw. VI, who was little more than our Lord President of the Council: But certainly they who proposed this Expedient, intended the same power in the Regent to let the Duke in as to keep him out. Therefore pray lay aside this Consideration, and take up that of the Bill, as has been moved.

Mr Leveson Gower.] I think it fit that you should present Reasons to the King for passing this Bill for excluding the Duke, &c. I do think that the Administration of the Government has been in such hands, since the King came in, that, though the Ministers have been shifted, yet the same Principles of Government remain to this day. The Triple League has been broken, and the Smyrna Fleet seized, before we had open War with Holland. The King of France made War with Holland for his glory, and our Ministers, to get Taxes from us to make the King absolute: Such violations, as never were done, upon the Rights of the People!—

He was called to Order by

Mr Vaughan.] A Question so extremely well spoken to as was the last, to be interrupted with any angry Question, is not decent at this time. What the Gentleman urges is a matter to be enquired into another time, though the Gentleman, I believe, does it with a worthy intent. If any Gentleman have any thing else to propose, of the matter now in Debate, pray hear him.

Mr Leveson Gower goes on.] I intended, from what I said, to move you to present the King with Reasons to pass the Bill of Exclusion. The shameful Retrenchments in the King's Family arise from the Duke's Creatures; and it is not safe for the King to part with any one of his Ministers, unless he parts with them all. These that retrench the King's Family, do it to get together a Bank of Money for a Popish Successor, and then will be their time to take away the King.

Sir Francis Winnington.] This we are upon is a thing of great weight, though not of difficulty. Pray let any man maintain that this Expedient has been proposed, or give you a new one.

Sir Thomas Meres.] I have heard this Expedient debated with patience. This Expedient has been well offered, and, I believe, mistaken by the Gentleman that answered it. I must say, this is your Question; your business is Religion, and I have given as good testimony of sincerity to the Protestant Religion, these twenty years, as any man has; and I have been for this Bill of Exclusion, and I am of opinion, that something must be done for the People, to quiet their fears of Popery. But for the Point of Law mentioned; if the Law be such, that Dominion must run with the name of King, that single Reason is to carry the Debate; but if they answer not to that, I am at an end. But, sure, those words that can disinherit a King may make this Expedient Law. I would not rise now to speak, if I thought that this Bill of Exclusion would pass the Lords and the King. My grounds are but conjectures. The last Parliament, I did believe that the Bill would pass, with greasing the wheels. Our condition of England is thus: We do need one another; the King and the People had need make use of Parliaments to assist one another, to relieve us in the difficulties we are in. If the Duke be King, he will need a Parliament, and so will his People. In order to this, if there be any other Expedient like this, though not the same, which no objection of Law could destroy, if any Gentleman would produce such a one, he would do the King and Kingdom great service and advantage. In this necessity, we are like two great Armies encamped upon two hills; and neither dares remove, not for their valour, but their reason: He that has the last loaf stays longest, and necessity compells the other to go off. At last, it must be one side or other, or England will have the worst of it. But if none will venture, in point of Law, to maintain the Expedient, I am answered. If any Gentleman could alter that Bill of Exclusion, that it may not be just the same it was last Parliament, but have something of this Expedient, I should like it; for this Expedient is a Bill of Exclusion, &c. and a strong one: If the Duke were to chuse, he had rather have the first. I am for that nail that will drive, to do our business; and if Gentlemen have other thoughts, pray so contrive it, that we may have one Bill or the other.

Mr Harbord.] All the Expedients that I have yet heard have been like a cucumber; dress it, and then throw it away. This Proposition of the Expedient is either honest, or not. If it be honest, and without design, then all the dispute betwixt the King and us is, Whether the Duke of York shall have a Title to the Crown? and I hope the King will rather gratify the Nation than his Brother, who has attempted the ruin both of it and him. If it be not honest, people about the King have done it to circumvent him, and will find ways, from day to day, to divert him from the advice of his People. Why was England so fond of Calais, but to have some footsteps in France? And so the Duke's creatures are [fond] of this Expedient, that the Duke may still have a Title to the Crown, though the Government be placed in a Regency; and then all those Gentlemen who depend upon the Duke, if he comes to the Crown, will change their measures, and show you of what Religion they are.

Sir Francis Winnington.] Meres not being satisfied with Arguments of Law, that calls me up, as in my Profession. As to the Question, concerning the Bill of excluding the Duke of York; that that Bill is lawful in conscience, no man will oppose, and after the great opposition it met with in the Lords House, yet they agreed it lawful. So that we are not doing what wise men think unjust, and what Jure divino is not unlawful, concurrentibus iis qui concurrere debent. Some Gentlemen have told you, "That their Countries have given them intimations to press this Bill of Exclusion;" and Littleton has told you, "It is dangerous to take instructions from the Country." But I say it is more so to take it from the Court. Parliaments formerly, upon any weighty affair, stayed, and sent their Members down to consult their Countries. I am not subjected to what my Country does propose. I have my Trust to serve them here as well as I can. It is alleged, "That consulting our Country is like the States of Holland." I am as much against a Republic as he that fears it most, and I say, I know Littleton to be a man of that great Reason, that, if he go away satisfied with this Day's Debate, he will do all he can to satisfy the King in the Post he is in. But to keep close to the Question: It being allowed by Law, that there may be an Excision of the Duke from the Government, the next thing is, to consider the Expedient proposed of the Regency. The same Authority that makes a Descent from the Crown may modify it, and this was argued, to show that the Regency would signify nothing in taking away the dignity of Monarchy. Now the Question is, Which is most practicable, the Regency or the Exclusion? We Lawyers are aptest to go on the strongest side, and to call every thing "Prerogative." But I will put you a case that happened in King James's time; a Sheriff had an Exception in his Commission, "That he should not keep his CountyCourt, but should have all other Powers of his Office;" but the Judges resolved, "That when once he had received his Commission, and taken his Oath, he was Sheriff to all intents and purposes, and could not be deprived of keeping the County-Courts." Acts of Parliament against Common-sense are void in themselves; to make a man King, and not suffer him to exercise kingly power, is a contradiction. Some Clauses in Acts of Parliament have been flattering Clauses, to satisfy the People, that they might not have the thing. This Act of Regency would be nonsense, and it would be said hereafter, "That the House of Commons were outwitted." If the Duke be King, I owe him my obedience, and if he be King, and have no power to govern, he is King and no King. This I have urged the rather, to show that this of the Regency is no Expedient to save Religion; it blears the eyes of the People only, and is no solid security. To say, "That the Duke values his Estate, and will not venture to come into England after the Act has banished him, for fear of forfeiting it," as he loves his Estate, so he loves a Crown too, very well; therefore you need no farther to arm yourselves in point of conscience (that being yielded on all hands) but in point of reason. In the last Parliament I did see, by the Arguments of the Papists and the Ministers, that without this Bill our ruin was irresistible. If the Duke comes to the Crown a Papist, he brings merum Imperium along with him, and that made me fond of the Bill of Exclusion from the beginning. If by Law the Duke never was King, no case of conscience lies upon us in the matter. I shall only make this observation upon the King's Speech, where in he says, "If it be practicable to rid ourselves of the Popish Party;" and next, "If means can be found that, in case of a Popish Successor, the Administration of the Government may remain in Protestant hands;" so that we see the King doubts himself, and this, delivered by the King in great wisdom, is clipped off into this Expedient of Regency—You see, now we are come to Expedients, which the Ministers have had two Parliaments to consider of, what they are come to, and the proposition of the danger of a Popish Successor not at all lessened. We have no security in Law by this Expedient. You take away no authority from the Duke, should he be King. Therefore I hope the Bill of Exclusion will pass, and that Reason, and not great Offices, will take men off from a Nemine contradicente—I speak this as a dying man.

Mr Booth.] I have it in command from the County I have the honour to serve for (fn. 1) , that they apprehend that no Expedient to preserve Religion, in case of a Popish Successor, but makes the remedy worse than the disease, unless the Bill to exclude the Duke from the Succession of the Crown; and I have, as yet, heard no reason given by any man against it: But there is an aliquid latet. If the Duke be not set aside, I am sure the Government will be. Therefore I move for the Bill of Exclusion.

Sir Thomas Meres.] I know not how far Winnington's Argument may be pressed. What Bill soever we have, pray let us have the Law on our sides, that, if the King should die, we may know whither to go. I think the King's Speech is penned as it ought to be penned, and should the King speak positively to what Laws he would have, we are an Irish Parliament, and not an English. But the King's words are tender words, and the thing lies fairly before you. If any thing of Expedient can be thought of to save Religion under a Popish Successor, not to destroy the Monarchy; and if the next Expedient be not the best, pray refuse not the next to that.

Mr Vaughan.] You have had an Expedient offered of a Regency; pray consider what this Regency is. It is but the whole Office of King, to place Judges, constitute Privy-Counsellors, call Parliaments, make Peace and War, &c. This they would take away, and reserve this empty name of King to the Duke. This is perfectly to bring a War upon us, and for the Duke to come in by Conquest; and so farewell Law, Church, and all! The Regency must be supported by War, as well as the Bill of Exclusion. In 13th Elizabeth, the Crown could not be alienated but by King, Lords, and Commons, and then there was no Successor named to keep King James in awe; and for the same reason, no Successor was named in the Bill of Exclusion the last Parliament. Though we have been frighted by Prorogations and Dissolutions, it will not frighten them whose Reasons go along with the Bill of Exclusion. I am for it because all men are for it, and have sent up the same Parliament again; but if you lead the People into uncertainties, by such an Expedient as this of the Regency, both Court and Country will then be of a mind to lay aside Parliaments, because they are become useless; therefore I am for the Bill of Exclusion.

Sir Henry Capel.] By these Conspiracies of the Papists, Peoples eyes are now enlightened, and, all the world over, they are an informed People. The Papists care not who is King, if he be a Papist. In the last Parliament it was said, [by Hyde,] "There was a Loyal Party would stick to the Duke, notwithstanding the Bill of Exclusion"—We see France has fallen upon the Protestant Party there. The Emperor has mastered them in Hungary, and what has been done in Bohemia, they say, broke the Prince-Elector's heart. An universal design against the Protestant Party—(The rest of his Speech was mostly what he had said in the last Parliament.)

Colonel Legge.] I would not have spoken for the duty I owe my Master, the Duke of York, but for my duty to my Country; and I own my obligation to the King for being the Duke's servant; and farther, I am a Protestant, and was never out of England; and for the King's service my Father bred me at sea. I know my own weakness in not having been bred to the Law; but by enquiry I find, that the Doctrine of deposing Kings, and disposing of their Kingdoms, is the damnable Doctrine of the Church of Rome—In the 24th of Edw. III, the King (I find) demanded Advice of Parliament in matters relating to the Crown; the Answer of the whole Parliament was, "They could not advise any thing relating to the Crown, nor of disinheriting him to whom they were sworn." The fundamental and CommonLaw of England has made the Duke, as Heir, to come to the Crown, if the King have no sons—Hen. IV. came to the Crown by Parliament, but laid his Claim to it by descent from Hen. III, and so it continued to Hen. VI, and then the Parliament declared, that those Acts were not binding, but unjust and invalid, and so the right Heir came in—Hen. VIII. had power to dispose of the Crown by his last Will and Testament; and though Jane Grey baited her title by Religion, yet Right took place in the Succession; and since that, there has been an Act of Restitution in King James, as lawfully and justly the right and next Heir to the Crown; and to beseech the King to accept of their Allegiance to him and his Posterity. I think our Ancestors were sworn to King James and his Posterity, as well as we—It is a great happiness that the two Lines of York and Lancaster are united, which has spent so much noble and royal Blood in the Barons Wars. We have had an attempt of turning the Government into a Republic; and who knows but that, if we put by the Right of the Duke to succeed, that may be attempted again; and the Crown-Revenue being much upon the People's gift, it may the more easily turn us into a Republic. In the late times, when my Father was in Prison, an eminent Person then in power, discoursing with him, said, "I have obliged you, and when the King comes in (as I believe he will do, first or last) pray be my friend, and think of what I say; when the King's Party shall be again in the saddle, if once you divide amongst yourselves, farewell Monarchy for ever!" If by a Law you keep out the Duke of York, what must follow? An Act of Association. I speak now for England and for my Posterity, (I have seven children.) How will this look? The King's Father was murdered, and you take his Brother from him. Sure this can take no effect with the King, and the Lords, to make it a Law. I wish the Duke many happy days, but, from my heart, I wish the King more than the Duke. The King is a healthy man, and the Duke is not—What I have said is not as I am the Duke's Servant, barely out of pique of Honour, but that I would not do any thing to destroy my Posterity. (Most of this Discourse having been fully replied to in the last Parliament, no Answer was given to it.)

Colonel Birch.] This is the Day of England's distress, and not only of England, but upon this Day's Resolve depends the good fate of the Protestant Religion all the World over. Except we expect a miracle from Heaven, nothing else can save the Protestant Religion. I think, I said this many years ago, "That Popish Matches would bring in Popery at last." But as to what is said to point of Law, "That the Law will be interpreted according to the strength that maintains it;" I doubt not but if you do your endeavours, this great matter in Debate may be settled; but if we have nothing left but prayers and tears to help us, we are in a miserable condition—All Government begins either by Conquest or Compact; but it is Interest that must defend this Bill of Exclusion, and not an Army. We are the Army. I have a Family as well as others; and as for setting up Idolatry, rather than my Children should breathe in such an air, I had rather they were buried—All the mischiefs in the World that may ensue upon this Bill of Exclusion have been ingenuously offered you by Legge; but if you quit this Bill, pray sit down and take up a Popish Successor, and renounce the Protestant Religion—I would break this Popish interest, and it will be our interest to maintain this Bill. If once this Bill pass, and, as in Queen Elizabeth's time, Protestants are put into Places of Trust, you may be sure of the good effects of your Bill. Where ten were of the mind for this Bill a twelve-month ago, there are an hundred now that will bleed for it. In plain English, let us show the World that the Protestant Religion is dear to us, and that we have the Law on our sides to maintain it; therefore I am for the Bill of Exclusion.

Sir Thomas Littleton.] I was mistaken by some Gentlemen, therefore I desire to be rectified. I shall be very short, and tender of you, having sat long. It is objected "the uncertainty this Expedient will lie under, if the Duke have a Son;" which is thus answered; "That then the Princesses respectively shall succeed in the Regency;" which obviates an incurable absurdity in the former Bill of Exclusion. For if the Duke have a Son, the Lady cannot descend from the Throne. This Bill of Exclusion is so weak a thing, that it will require all the props imaginable to support it; and a train of consequences will follow—What you have been told of Scotland is worthy your consideration: If Scotland is not consenting, I know not how you will obviate that; I fear it may unite the Papists of England and France. But we ought to do something. I said I would not be long, and I have kept my word.

Mr Boscawen.] Littleton may be convinced of the weakness of the Expedient to save the Protestant Religion by his own Argument. For by so much the easier it is for the Princess to descend from the Regency, so much the less is our security. And as for the objection of Scotland, the same interest which passes the Bill of Exclusion here, will do it in Scotland; and for Ireland there is no need of it. By the proposition of the Expedient, all Commissions for Sea, Land, and the Church must go from the Regent in the Duke's name; and if all dispatches, &c. must go under his name, there will be still no security, for the Oaths of Allegiance and Supremacy must be taken to the Duke; and if that be not a true proposition, "That we are not to take up arms against the King, nor those commissioned by him," I know not why it was by Law obliged to be taken by all that execute the Militia; and if that be a true proposition, why must it be destroyed by this Expedient now.? The thing lies loose to me. Methinks, this Expedient of the Regency seems to me as if a man that sat by the fire and burnt his shins, instead of removing himself farther off, should send for a mason to remove the chimney back farther from him. I have heard, that, if a man make a freehold lease to commence from the date thereof, it is void. It would be far more ingenuous for Gentlemen to say, "That if you do pass the Bill of Exclusion, they will not be bound by it, but will have the Duke to succeed;" and then I wish they would tell us what will save the Protestant Religion. If the Duke do come in, will Gentlemen chuse either to turn Papists, or to be burnt or hanged? If this Proposition would keep out Popery, I would accept of it. I have no disrespect to the Duke; but if I am to leap over a river, I had better have no staff than a broken one; and this Expedient is no security. If it must be in the power of the Council and the Regent to dispose of the Public Treasury, to make War and Peace, pray where is the Government? Where is the Monarchy? Either they will be faithful and keep this Law of Regency, and the Duke shall be King but by name, and so take away the soul of the Government, or they will let the Duke in to govern as King. I have hearkened with patience to this Expedient, and because I would willingly hear what can be farther offered, I will not be too hasty to press the Question for the Bill of Exclusion.

The Debate thus ended, and this Vote passed, viz.

The House having taken into solemn Debate and Consideration, the means for the Security of the Protestant Religion, and for Safety of the King's Person, doth

Resolve, That a Bill be brought in to exclude James Duke of York from inheriting the Imperial Crowns of England and Ireland, and the Dominions and Territories thereunto belonging; and that a Committee be appointed to draw up the said Bill.

A Gentleman moved, "That this Bill might also exclude all other Popish Successors." To which

Mr Hampden answered,] He believed the Gentleman made the Motion with a good intent; but this is a Bill for the purpose only of the Duke's Exclusion, and that for all other Popish Successors may be done in another Bill hereafter; for the way to lose a Bill is to clog it with too many things (fn. 2) .

In the Afternoon.

Debate on the Lords refusing to proceed upon the Impeachment of the Commons against Edward Fitzharris, [and directing "That he should be proceeded against at Common Law (fn. 3) ."]

Sir Thomas Lee.] I see not what farther use there is of a Parliament, if the House of Peers will be a Court, and not a Court, to serve a present purpose.

Sir William Jones.] In a matter so very plain and conspicuous, as the refusal of this Impeachment by the Lords, I am unwilling to make unnecessary doubts. If indeed an inferior Court had proceeded to Judgment in this matter of Fitzharris, then it might have been pleaded in bar against the Impeachment of the Commons. There was an Indictment against the Lords in the Tower, in the King'sBench, found upon Record, and yet that was no Impediment to their Tryal by the Impeachment of the Commons; but in this case of Fitzharris, here is no Indictment or Prosecution begun in any inferior Court of Law. We have a Precedent fresh in memory of the Impeachment of a Commoner at the Lords Bar, if the Lords doubt that, which was of my Lord Chief Justice Scroggs; so that we need not spend our time to search for Precedents to maintain our Right at a Conference with the Lords. Perhaps the Lords Journals are not yet made up into form; but some Members have taken Notes out of their Minutes, and find that the Lords have dismissed the Impeachment against Fitzharris, and left him to Tryal at Common Law, and have ordered it so by the Lords "Spiritual" as well as "Temporal;" and in this case they have determined a great point, "That the Lords Spiritual have power to judge in an Impeachment of capital matters," which we never own, nor ever shall, and here we are denied Justice by those who have no right to vote it. In this the Lords have done a double Act of Injustice. Seeing then that the Lords have taken upon them to throw out this Impeachment, &c. let us assert and declare our Right of impeaching in Capital Causes, and that the Lords have denied us Justice in refusing the Impeachment against Fitzharris; and then, after having asserted our Privilege, let us draw up our Reasons to maintain it, and make it part of our Conference to show the Lords, how unreasonable the Lords actions have been in their Proceedings.

Sir Francis Winnington.] If this refusal of the Lords was an ordinary Impeachment of Monopolies, or the like, I should not press you in the matter; but this is not an ordinary Consideration, but that which relates to our Religion and Property; and how the Bishops come in to stifle this Impeachment, let God and the World judge! I would know if there be an Impeachment against a man from the Commons, and no Indictment upon Record against him in the Courts below, only the AttorneyGeneral told the Lords, that the King gave him directions to prosecute Fitzharris, and there is no Record against him. If the Lords vote, "That the House of Commons shall not impeach this man," they may as well vote, That we shall not be Protestants. But yet we will be Protestants. I take this to be a new Plot against the Protestant Religion, and we impeach this man, and the Lords fairly say, "We will not hear it." If this be the case, I desire you will come to some Vote. You are willing to discover this Plot if you could. If the Attorney-General had prepared the Prosecution of Fitzharris, and, as Jones said, if the inferior Courts had proceeded to Judgment against him, then that Judgment is pleaded in bar against an Impeachment. But if our time be short to be here (as I believe it is) pray do not delay discharging your part in this matter. If the House be satisfied in it, pray make a Vote, to assert your own Right. A little while ago, we knew, that the Judges of the King'sBench discharged the Grand Jury, whilst the Indictment against the Duke of York, for a Popish Recusant, was depending: This Proceeding of the Lords, in rejecting the Impeachment of Fitzharris, seems as if the House of Lords intended to justify that Proceeding of the Judges by their own. It is a just reflection of weakness to doubt in a plain matter. If no Gentleman doubts of our Right of impeaching, pray vote it so.

Sir Robert Howard.] I am glad we are off from one great thing, viz. "the Exclusion of the Duke of York from the Succession of the Crown as the best means to preserve the Protestant Religion." I cannot believe but that, in this matter of rejecting the Impeachment of Fitzharris, the Lords have cause for what they do. In this matter, Precedents you need not search; you have instances of very late date: But this of Fitzharris seems to me to be a more dangerous breath than usual, a breath fit to be stifled. There is something in this more than ordinary. If this be a sacred respect in the Lords to the common Tryals of England by Juries in the inferior Courts, it is strange that, in the case of Skinner, the Lords should contend with the Commons about the Tryal of it, though an original cause. This refusal of the Lords seems to me to be no great value of the Law of England, but a value of Fitzharris to keep him from us. When I have seen, in all the Speeches to-day relating to the Duke's Exclusion, that the Duke goes not single, but all along associated with Popery—I have heard such excellent discourses to-day of that matter, that I am loth to mingle my weakness with them; but these are such Counsels from the Lords, that I believe hereafter the King will have no cause to thank the Lords, or those that were the originals, for involving him in the fatality of them. They will make the traiterous libel of Fitzharris the Copy of their Counsels. Dangerfield was a man reputed most infamous, yet if he would discover what he knew of that sham Presbyterian Plot, nothing of mercy was too big for him; but Fitzharris, a man of no infamy, must be hurried away from Newgate to the Tower, when he was disposed to confess the whole Plot to those Gentlemen who examined him. Are you so lost, that there is no mercy left for the Protestant Religion? If the terror of his condition incline him to discover all, must he now be taken out of our hands? We hear of other things too; that the French Ambassador had a hand in the contrivance of this Plot with him, and can that be enquired into by a Common Jury, who are to concern themselves in no more, than whether Fitzbarris be Guilty, or Not guilty? I must confess, that with the carriage of this, I have enlarged my suspicion, and I must always suspect unusual ways. We see that the worst of mankind has been pardoned, with all his villainies about him, upon an ingenuous confession; but what provocation has there been from Fitzharris, to be thus hurried away to Tryal at Common-Law in a disposition to confess all, and so be out of the reach of Pardon, should that disposition continue upon him? But I am persuaded something depends upon this man, as well as upon the Bill we ordered today. When I saw the temper of the House, when Jenkins refused your Message (fn. 4) (and there was something in that too) that the House would make no breach upon it, and passed it over with great temper, that now we must lay down all Prosecution of the Plot, and that the Protestant Religion shall have no mercy!—Fitzharris may merit by his confession, where he may reasonably hope for the same intercession for his Pardon, that much blacker offenders have obtained; but if his breath be stopped, I am sorry the People should have occasion to say, "If it were not for the Lords, the Protestant Religion might have been saved." Therefore I move, that, in the wording of your Vote, you will not only say, "That the Lords rejection of this Impeachment is not only a subverting the Constitution of Parliament," but "of the Protestant Religion" also; and I hope you will do this with the same calmness of mind that every man does wish that loves his Religion.

Serjeant Maynard.] This damnable Popish Plot is still on foot in England, and I am sure in Ireland too; and what arts and crafts have been used to hide this Plot! It began with the murder of a Magistrate [Godfrey,] then with Perjury and false Subornation, and this of Fitzharris is a second part of that. We sent up an Impeachment to the Lords against Fitzharris, and told the Lords, "That, in due time, we would bring up Articles against him," and the Lords refuse to try him. In effect, they make us no Parliament—If we are the Prosecutors, and they will not hear our Accusation, their own lives, as well as ours, are concerned. This is a strange way of proceeding; the same day we impeach Fitzharris, they vote we shall not prosecute him: Now, when all is at stake, we must not prosecute. If this be so, Holland must submit, and let the French run over all. This is a strange breach of Privilege of Parliament, and tends to the danger of the King's Person, and the destruction of the Protestant Religion, and I hope you will vote it so.

Sir Thomas Player.] I shall make you a Motion, but first I shall say we have had a considerable discovery of the former Plot. I call it the old Plot, but this of Fitzharris has been new upon us. This is still a confirmation of the intention of murdering the King, the Duke consenting to destroy his own Brother and our King—I have often heard it whispered, that the design of Madame's Voyage to Dover was to promote the Popish Religion, but it is plain that Justice Godfrey was murdered by the Papists, and that the Army mustered on Blackheath was raised with intentions to destroy the Protestants in Holland, and to awe the City of London—When Fitzharris gave intimation, that he would discover what he knew of this Plot, and that two or three Honourable Members of this House had examined him, this man was fetched the next day to Whitehall, and from thence hurried away to the Tower, and so we were deprived of all farther hopes of discovery from him. We now revive the Information from an Impeachment, and now this man must not be brought hither to be tryed: He must be tryed in an inferior Court, that his mouth may be stopped, and put out of capacity to discover. This being the case, I move, "That if any Judges, Justices of the Peace, Juries, &c. shall proceed upon the Tryal of this man, that you will vote them guilty of his Murder, and Betrayers of the Rights of the Commons of England."

The House proceeded to this Vote:

Resolved, That it is the undoubted Right of the Commons, in Parliament assembled, to impeach, before the Lords in Parliament, any Peer or Commoner for Treason, or any other Crime or Misdemeanor; and that the Refusal of the Lords to proceed in Parliament upon such Impeachment is a denial of Justice, and a violation of the Constitution of Parliaments.

[Resolved, That, in the case of Edward Fitzharris, who, by the Commons, has been impeached for High-Treason, before the Lords, with a Declaration, "That in convenient time they would bring up the Articles against him;" for the Lords to resolve, "That the said Edward Fitzharris should be proceeded with according to the course of Common-Law," and not by way of Impeachment in Parliament, at this time, is a denial of Justice, and a violation of the Constitution of Parliaments, and an obstruction to the farther Discovery of the Popish Plot, and of great danger to his Majesty's Person, and the Protestant Religion.]

Resolved, That for any inferior Court to proceed against Edward Fitzharris, or any other Person lying under an Impeachment in Parliament for the same Crimes for which he or they stand impeached, is an high Breach of the Privilege of Parliament.

Sir William Jones.] I would not give occasion to People to say we do things in an extraordinary manner. It being late, I would proceed no farther now, but adjourn (fn. 5) .

Footnotes

1 Cheshire.
2 "All Popish Successors" are named in the Vote in the Journals.
3 The Commons Impeachment against Fitzharris was rejected by the Lords upon a Pretence with with which Lord Nottingham furnished them. It was this: Edward III had got some Commoners [the six murderers of Edward II] to be condemned by the Lords, of which when the House of Commons complained, an Order was made, "That no such thing should be done for the future." Now that related only to Proceedings at the King's Suit; but it could not be meant, that an Impeachment from the Commons did not lie against a Commoner. Judges, Secretaries of State, and the Lord Keeper were often Commoners. So if this was good Law, here was a certain method offered to the Court, to be troubled no more with Impeachments, by employing only Commoners. In short, the Peers saw the design of this Impeachment, and were resolved not to receive it, and so made use of this colour to reject it. Burnet.
On this occasion a Protest, with Reasons, was admitted for the first time, signed by the Duke of Monmouth, and eighteen other Lords, which, by the means of the Press, for which it was originally calculated, became the subject-matter of political controversy all over the Kingdom. Ralph.
4 See p. 305-12.
5 For a close of this busy Day, a Bill was ordered in to associate his Majesty's Protestant Subjects, and another, to banish the most considerable Papists, by their names. See the Journal.