Debates in 1674
February (19th-24th)

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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 1674: February (19th-24th)', Grey's Debates of the House of Commons: volume 2 (1769), pp. 440-454. URL: http://www.british-history.ac.uk/report.aspx?compid=40975 Date accessed: 23 October 2014.


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Thursday, February 19.

[On the Bill for Ease of Sheriffs.]

Mr Secretary Coventry.] Would have the office, if not lucrative, at least not damageable, and supplied by men of parts; that Gentlemen may have the honour of it, and not the damage.

Colonel Strangways.] The Under-sheriffs know the office, and are often in it; by that time the High-sheriff understands his office, he is out of it.

Sir Thomas Lee.] Is for being but once Sheriff. 9 Edward II. "The morrow after All-souls, they are to be pricked by the Chancellor and Judges appointment." However the practice is, the law is so.

Sir Robert Carr.] You have an example in Hertfordshire, Sir John Read's case; would have that considered.

Sir Thomas Clarges.] Would have Rutlandshire added to some of the neighbouring counties, there being so few Gentlemen, that they must often be Sheriffs.

Sir Thomas Meres.] The King need not fear it; he has but little to collect now by Sheriffs, and no danger.

Sir Robert Howard.] If the Proviso was of an injurious nature, for the Gentlemen of Yorkshire, they might have it by turns. Being Sheriffs but once sets up vying in expences. In Parliament time, five hundred Gentlemen are exempted from being Sheriffs—Would take this occasion to do the best work in the world, to make the office to be borne with credit and honour—By recommitting it, ways may be proposed, that Gentlemen be not burdened in the office.

Mr Boscawen.] Those, by this Proviso, will be brought to spend their estates in the Country; the fewness will bring them down, and when that is done, you may repeal the Act; more Gentlemen, that live here about the town, being brought into the country.

Mr Garroway.] You have been told of great inconveniences of Gentlemen sitting here, and hopes, by recommitting the Bill, that may be mended.

Mr Cholmondeley presents a Proviso, "That the Accounts of the County Palatine of Chester may pass as formerly." Which was accepted, [and the Bill was ordered to be ingrossed.]

Friday, February 20.

In a Grand Committee. On the present State of Ireland.

Lord Obrien.] Desires that Lord Angier may give you an account, how the commission was granted to take the money out of the Exchequer in Ireland, into private hands; the first cut given to Monarchy there.

Lord Angier.] Is surprized at what falls from Lord Obrien; it may be thought malice in him to say any thing, because a sufferer there from persons—Desires it may be said by Lord Orrery.

Colonel Birch.] This, of the revenue, is but one part, though a very great one; he loves to talk of Ireland, when we can talk so cheap of it as now; neither to cost us blood nor treasure.

Divers Motions were made for Lord Orrery, "to speak his knowledge," but they were rejected, "till he please to speak."

Sir Henry Ford.] The Proverb says, "Losers may speak;" he hopes Lord Angier is no loser, because he will not speak.

Lord Angier.] Has the honour of being a Privy Counsellor of Ireland, and knows not how he can declare his knowledge, being the business of the revenue, transacted in the Council.

Sir Thomas Clarges.] Would only know, whether there be any such commission granted out, whereby the Treasury is put into private hands.

Sir John Birkenhead.] If a Privy Counsellor be asked, "who advised the King such things at the Council Table," he is obliged not to tell you, but generally "how affairs stand as to the revenue in Ireland," he may be asked.

Mr Stanhope.] The story of Mordecai and EstherIf thou dost not thy duty, thou shalt perish too—Would have both the Lords urged to speak their knowledge.

Sir John Hotham.] Desires that the Speaker may take the Chair, if Gentlemen will not declare their knowledge, that we may go about other business, concerning the "English Grievances," if we proceed not now on the Irish.

Lord Obrien.] Thinks him not worthy of the office of Privy Counsellor, that will not declare his knowledge in what may prejudice his King and Country. He is of the Council, and knows a certain Lord Ranelagh; he and his partners have engrossed all the interest, with some little people he has picked up, engrossing the revenue of the Crown of England—You know what precedents of punishment—The case of Sir George Ratcliffe was a severe clog upon Lord Strafford—Judges these things, because there is something more in it than the pleasure of managing the revenue. Lord Ranelagh pretended to pay all the King's debts, and to put up forty thousand pounds in the King's purse; the King had reason to close with them.—He compassed it, by getting in people to manage the revenue, who owed the Crown much money—Fifty-three thousand pounds were cut off for twelve thousand pounds, which is cut off by pardon to that Lord and his partners —The Judges are so terrified and awed by this Lord, that they are forced to put in execution severe penalties for small offences, and vast sums of money are extorted from the subject—When the accounts run the old regular way, there was no money but what was payable and discharged by the Exchequer Record; they charge, from first to last, in the Court of Claims, and, if acquittances are lost, the money is paid over again; no Record in the Exchequer, their cattle seized for want of payment; these cattle driven to no pound near, but, it may be, forty miles off—For the army, he detains the money, and no payment of money when he might do it—These things ought to be remedied as Grievances, and what farther he remembers he shall tell you—If "he has the revenue in his hand, and has held correspondence with France," hopes you will be warmer in the thing.

Sir Charles Wheeler.] A chart, or project, was brought the King, that he will run over an hundred thousand pounds in his revenue in few years, and another project that he might get as much. Can say nothing of the fitness, or unfitness of gathering the money, or to the process out of the Exchequer; when Lord Obrien will come to these particulars, shall be able to say something to it—As to Lord Ranelagh's "correspondencies with foreign Ambassadors," they are things of great suspicion and ill fame, though it may be, no great hurt.

Earl of Orrery.] Be pleased to move the House for a Committee to see the Contract for the revenue, and hear proofs. When the whole matter is heard regularly, and brought into the House, he will submit to justice.

Sir Thomas Lee.] This looks as if persons were striving who should have the revenue, whether he that has it now, or returned again to him that had it—He thought to have heard something of Popery—Was in hopes to have heard something of which way we might be instrumental to keep that kingdom from being over-run with Popery—  —All these things spoken of may be remedied by a Parliament in Ireland.

Lord Cavendish.] By Lord Ranelagh's suggestion to the King, knows not whether to save charges, but the money is disposed of to the most notorious Papists in Ireland, upon pretence of disbanding the army—Lord Angier, if he pleases, can inform you farther.

Mr Harwood.] Would have that Lord's Patent brought you in, to view the whole matter.

Lord Angier.] Several payments have been, both according to the old and new establishment—Desires all may come before you at a Committee.

The Speaker, out of the Chair.] Agrees with those that move for a Committee—He expected the story would have gone much higher, but finds all has ended in an accusation against a noble Lord—If some persons (fn. 1) had gone through the farming of the Customs of England, you would never have heard of this of Ireland—Hopes this House shall never be made a property for private interests—Knows this Lord to be a worthy person, a loyal subject, a good Christian, and true to his friend—The scheme of the revenue of Ireland was brought to the King by those that managed it there, besides great sums in taxes and poll-money out of England—The army was twenty-two months in arrears of their pay, and it was assured the state of the revenue could not answer the charge. Lord Ranelagh showed so many things were mistaken, that the revenue would abundantly satisfy the charge; he undertook the payment of the arrears of the army, and money to the King over, without any other alteration, than changing Lord Ranelagh for Vice-President of Munster, and undertakes it—What became of the abatement of the charge Obrien tells you; it comes not to his partners, but the King; all is but a difference between the present Farmers, who pay it more narrowly than before—The fines and penalties are not his; they all come to the Crown—They are all in print; if an account be given of this farm by those that have been chief Governors, you will find nothing—But that you may not pass over these errors, commit it.

Lord Obrien.] A pardon is obtained to Lord Ranelagh to lie leger for him; if not faulty, why has he a pardon? Desires the Speaker to tell the Committee.

The Speaker.] He has taken out no Pardon; which words Lord Obrien taking exceptions at, the Speaker said, He is unfortunate if any thing that he said reflected, but is confident of matter of fact—The account is true.

Saturday, February 21.

A Bill concerning Lindsey Level was read the first time.

Mr Sawyer.] Averments are to and fro about the matter of this Bill, but the issue must be one way. This Bill has a retrospect and a prospect. No decree can settle the matter in Chancery; if property of the country about the draining be in the case, and whether consent or not a consent of property, few know; therefore would commit the Bill.

Sir Richard Temple.] To speak as a Buckinghamshire man, he would have all the Fens drowned; but you have once thought that this Bill deserved a hearing before. What cannot be done by argument, is often done by delay; if these things alleged can be made out, hopes your justice will not be destroyed by delay.

The Bill was ordered to be read a second time.

Mr Howe desired leave to go into the Country, to make his defence against a Presentment of a Riot alleged to be committed by him.

Sir Robert Howard.] The presentment at the sessions is "for spoiling the grass, &c. by hunting deer," Mr Howe keeping deer in his woods, having no park, chace, nor free warren there, in Bradley woods.

Mr Waller.] Informations of this nature may carry away half the House—Would refer it to the Committee of Privilege.

Sir Thomas Lee.] The presentment of a Constable is by virtue of an oath, and by the duty of his place he presents, as offences, riots, contra pacem, which is the case before you. Is not satisfied that your Member should be so prosecuted, and yet would not protect him in a breach of the peace—Would commit it.

Sir Thomas Littleton.] This is not matter of record. If no indictment, your Member may stay here and no proceedings will be.

Sir Robert Carr.] You are told that this presentment is from the "Chief Constable," not the "Petty Constable." It looks extraordinary that the "Head Constable" is active in the case; therefore would commit it.

[It was referred to the Committee of Privileges.]

On a Breach of Privilege against Sir John Coryton's servant.

Colonel Birch.] The course is, any man that complains must stand up, and aver, that the man arrested is his menial servant.

[Mr Clarke said, "couchant & levant in his house."]

Sir Thomas Lee.] Those paper protections are an umbrage, that the man may be a shop-keeper, or some other person; therefore would commit it, to know the certainty.

The Speaker.] The servant was taken in execution, and because he would not lie by it, he shows his protection.

The person, at whose suit it was, was sent for in custody.

The Bill of Habeas Corpus was read the third time.

Occasionally upon Sir Edward Masters's Motion, in that Bill to alter the penalty upon officers not worth the penalty.

The Speaker.] Exceptions cannot be taken to a Bill at the last reading, but such as may be mended at the table.

The Bill passed.

Sir Nicholas Carew brought in a Bill for a Test for Members of both Houses for Popery.

Mr Sacheverell.] Thinks it necessary, and would not defer reading it; to-morrow is a holiday, and you cannot do a better work.

Monday, February 23.

The Lords Bill was read for trial of Peers; "The number to try them not under twenty-five, at least; of or above the age of twenty-one years; so there be twenty-five appear, no defect of summons."

Sir Lancelot Lake.] The Lords have great reason for this Bill; they may be tried by a pack of enemies; it has been so, and they have no challenge; the Lord Steward begins his office but that morning—Moves for a second reading, and to give some additions.

Mr Secretary Coventry.] Repeats the purport of the Bill: Nolumus leges mutari, &c. in this the Laws are changed; for inconvenience, in the present way of tryal, he knows none. In this King's reign there has been the least noble blood shed of any since the Conquest—If the Lords join in combination, they may ravish your daughters, and do you all the injury in the world, and no remedy for it—The Lords have no oath given them, because of known integrity—Shall they judge us upon honour, and condemn upon impeachments, without an oath, and they not trust one another? Commonly, in the Preamble of a Bill that alters any thing, the inconveniences are recited; there is no pretence in the old Law, as it is already, and he would throw the Bill out.

Colonel Birch.] The same reason given against this may be given against most Bills. Blessed be God! we have had no occasion for it yet, but we know not hereafter what may be: For taking from the Lords these fears, would quiet us of these fears—that it may not be so—Thinks it not possible to have those correspondences with the Lords you expect, without it, therefore would read the Bill again a second time.

Sir Thomas Higgins.] The former Bill that the Lords sent of this nature, not two Gentlemen spoke for retaining; knows not how the state of the kingdom is altered since—You, by this Bill, will alter the whole Law of England—Their powers were so great once, that the King and Commons could not reach them—If the greater part of the Lords agree to conspire against the King, to ruin us, and no tryal but what they please, kindred, and friends and allies of their Jury, and no remedy, they are acquitted—The Law has provided already admirably well, and he would not read it again.

Sir Thomas Littleton.] Was one of those few that formerly would have retained the Lords Bill. He would not have this Bill pass as it is penned; as it is penned, twenty five are to have summons—If you give challenges to the Law, as it is already, that will remedy it; much more subject as it is now, than by this Bill—Retain it to alter it.

Sir Thomas Meres.] Would remind you of the occasion of not retaining their former Bill; they had thrown out several of our Bills; it is not to be retained as it is, but may be mended; he offers challenges—It would be of great good to have power to swear persons at our Bar (as the Lords have) in Elections and Privileges, and hopes to have it in this Bill.

Sir Robert Howard.] Shall not urge any thing that may be indecent; the Bill is of a strange nature—If so many Peers will unite together, to be injurious both to the King and the Commons, this is throwing an arbitrary power into the hands of a number of men. 'Tis possible that a Peer may be unjust; the Lords have said it in twelve, and he may say it in twenty-five—In the challenge of a Commoner, if we look a Jury man in the face, and like him not, it is a just challenge—If you commit this Bill, you can preserve nothing but the preamble, and let them be tried as we are—Though he is not against any Bill for their ease, nor against it, if tried with exceptions against their Jury as we are, yet it is not for us to enact things for the Lords honour.

Mr Sawyer.] The arguments are so strong, that no Commoner but would be persuaded by them; yet would not throw out the Bill at the first reading. Where there has been great debate, and arguing, 'tis a great disrespect, and to be done only, when nothing in it can be made good —If the Lords had thought that challenges would have solved it, they would surely have put it in. Usually more is asked than will be taken. Thinks that proper challenges would content. It is one thing to receive the Lords into the state of Commoners; and to let them have challenges upon one another, another thing.

Sir Charles Wheeler.] Circumstances of things and times alter things. The prospect of affairs is very melancholy, and, perhaps, some Lords are Papists, and others Protestants, and have a kindness for their Religion. This prospect makes him for a second reading it.

Sir Thomas Lee.] In some Bills, if the Lords cannot get new Privileges, they throw them out—The Bill "for security in time of the infection of the Plague" was lost, because the Lords would have it make a distinction of their lands, as well as of their persons—When the Law "of imprisonment for debt" was made, the Peers were exempted—The Commons act for the whole interest of the Nation, as well as the Peers—This tryal is for themselves; the Commons are never the better for it—For in the whole House, the numbers returnable take out near relations and Bishops—And they are to be tryed by their friends. You tie them together the better to effect what they have a mind to do, by hopes of impunity. Take care that no Popish Lords be in tryals. But observe, that no Popish Lord, since the Reformation, has suffered by his Peers Jury—There is no danger of the Writ De hæretico comburendo (fn. 2) . They are returned by the Lord Steward, in the nature of summons by the Sheriff. The Lord Steward dares not make a corrupt return, because every Peer is concerned, and that family set out as destructive to Peers, and all the Peers will be upon him—No Peer can be tryed but by a face he knows—Would throw this Bill out, because the Commons are never the better for it.

Sir William Coventry.] Has heard no man affirm an equality of tryal; that goes to the bottom. If a Peer has but seven enemies, he may, as the Law now stands, be destroyed—We are providing new Laws for our own security, and it is reasonable the Lords should. They are a considerable part of the Nation; and we may want our influence that we may hope for from them, of Religion and Property. The Bill is not so extravagant, as he has heard said; for the Peers had, heretofore, great er powers than now. There are few Papists convict and so they are capable of being Juries. The tryal now aimed at is not so different from the ancient constitution. Heretofore they were not so numerous; twenty four Lords went a great way, and came near the whole number. Then, if the major part of twelve cut off a Lord's head, he had hard fortune; but now it is no hard matter to find twenty four Lords. No danger of ruin to the Commons, only in point of stealing away, and from that their estates pretty well secure you. But for murder, in case of Appeal, he must be tryed by Commoners. That still remains. He moves, because he thinks it for the good of Religion in this conjuncture, (the King often present in the Lords House, and that they may make Debates in their House with as much freedom as we do here,) for a second reading.

Mr Powle.] Thinks that this Bill cannot be made better—Still for the inconvenience of the Commons—They have a more speedy way than greater men. Here they must come for Aids, and the Lords must comply—If this Bill be, the Lords may conspire to let the Crown fall into their hands—Such a way, as, in effect, exempts them from all capital punishment, if any Lord has a friend, that can prevail with a Lord to stay at home, when summoned, though he be of another opinion—It is setting up Aristocracy against Monarchy. If they carry this Bill, they will be Kings—If not impunity, for any ambitious man that is popular. Do you not, by making them masters of your lives, make them masters of your estates also? The Lords, to set up a distinct interest betwixt the King and them! Would rather be under the Government of a lawful Prince than the Lords.

Sir Nicholas Carew.] Apprehends no danger in this Bill, as things at this day stand. Thinks it not fit that the Lords, who must speak against Popery, should be tryed by Popish Lords. The whole Jury may be Popish.

Colonel Strangways.] Arguments against Popery go a great way with him. Suppose a Lord arraigned for Treason, in the King's Bench, and they, by Writ of Error, remove it, and the Lords say, it is no Treason. How many troubles were in England when the Lords were great!—Would not do things for imaginary reasons—That's only the case.

Sir William Hickman.] Consider the security of the Nation—There never was a better time for correspondence with the Lords, and hopes, that by it we may get our witnesses sworn at our own Bar.

Sir Robert Carr.] If we were always sure of such noble Peers as we now have, he would be for this Bill. As to the argument, "if we give no countenance to this Bill, ours will not succeed in the Lords House;" thinks that will not prevail upon noble Peers. You are told of challenges; if so, they may be tryed by their relations, and so never be brought to justice.

* * * * * * *] This Bill may be made a good Bill. It is reasonable they should have equal tryal as the Commons have—He speaks now in the behalf of the Commons, when prevalency of great men—Though we are happy now, yet knows not what may be hereafter. When tryed, may he not find seven of twelve that may acquit him? They have more security, as this Bill stands, than before. As for dependence on the Crown, what have you to fear, if the Lords, out of twelve, may have liberty to challenge? Appeals to the experience of former ages that this has been fatal to the Lords predecessors. Lord Dacre, upon his tryal (fn. 3) , desired to wave his Privilege of Peerage, and to be tryed by Commoners; but could not have it. Hopes we shall never see the Lords uppermost, for then the Law you make now will be changed. If the King's Ministers, and the Lord Steward, may approve of the Jury, and the party tryed have liberty to except, it may do well.

Lord Obrien.] For the sake of some sons of Peers, that sit here, who may come to tryal, he would have the Bill read again.

Sir Edward Smith, of Ireland.] Put the case, that some Gentleman brings in a Bill for tryal of the Commons, so many of his kindred to be of the Jury—This is much worse; all are kindred and relations in the Lords House, and so there is no crime that they will punish—It introduces Aristocracy.

Mr Boscawen.] 'Tis as much injustice to be tryed by friends as enemies; but as to putting the Question for passing the Bill as it now is, he is against it. Were the Lords an entire body, another thing; they marry with Commons, and are interested with them. Upon Appeals they are tryed by the Commons. The numbers are not so hard to be gotten as formerly; they live not so remote. Would read it a second time.

Mr Attorney North.] Likes not the subject-matter of the Bill, and when that is not to be approved of, hopes you will lay it aside. In civil tryals they have great Privileges. Instead of the Sheriff, the High Steward is "to summon twenty five of not suspected integrity," and so no challenge can be. To pretend to be weary of the usual way of tryal, is a mere pretence. Any rape, or capital offence, may be committed on a Commoner, by a Peer, and 'tis hard to have equal Justice. Believes, that, if any Clause should be sent to the Lords about challenges, it would be thought a reflection upon the whole House of Lords. The more dangerous for the numerousness of Peers; the Lord that's to be tryed will send all the Kingdom over, to sollicit relations. The Lord Steward cannot so well do it. Then how bold will they make with the Commons, and tend to setting up an Aristocracy! Appeals we have in notion, but not three have been brought in an hundred years (fn. 4) . If a proper Law towards it, would not have been against it, but would lay this aside.

Mr Swynfin.] The Question is not upon the particulars of the Bill, but the design and scope of it; at the second reading then proper to be debated. The Question now is only, whether the Lords, having sent you a Bill to alter the scope of their tryals, you should take it, or not, into consideration; whether the Law is so exact now, as that a larger way of tryal be not better, or worth taking into your consideration. Either favour or partiality is stronger, as now it is, in a few—Is for a second reading.

Sir John Duncombe.] It is not reasonable to trust the Lords with such a power. We fear that a Lord should suffer for conspiracy; the more Lords the more conspiracy. You are putting the Lords, by this Bill, into a higher condition to do it by Law. What is this for? Only temporary fears, and so all Laws changed—Consider whether the Lords will not do as the Senate of Venice. If they knock one of us on the head, let us stick to one another—Is against a second reading.

Sir Edward Dering.] This concerns all the Commons. You take away the birthright of every Commoner—The latter Clause of the Bill takes away all remedy of Appeal.

Sir Thomas Clarges.] If their ancient way of tryal be grievous to them, this Bill is no more than in pursuance of the King's Speech, about their properties. The ancient way of tryals was in Parliament. Till Henry IV's time, no knowledge of an High Steward. It is so in Ireland, in placito Parliamento, and no otherwise. In Henry VII's time, Poyning's Law. There is reason to alter this Law—The axe has not been wet with noble blood, but since the King comes to the Lords House, and perhaps, the Lords successors may be under a violent Prince, and if the Lords speak freely, twelve men may be packed and dispatch them. In Henry VIIIth's time, more Nobility lost their lives by tryal, than from that time to the Conquest, but none were put to death but by Law. The Earl of Surry, the Countess of Salisbury, and Anne Bullen, were hard cases. Upon the whole, would have a second reading—In the main, it is a good Bill.

Resolved, That the Bill be read a second time, [179 to 106.]

N. B. In this Session of Parliament there was a Debate in the House of Lords concerning taking away the Writ De hæretico comburendo; which is a Writ in the Register, before 2 Henry V, in which time the Statute against Lollards was made, and put in execution against them. A Writ De hæretico comburendo was, before that time, at Common Law. The Bishop and Ecclesiastical Power were Judges of Heresy, who, upon condemnation of the party, delivered him up to the Secular Power; and the Writ De hæretico comburendo was thereupon issued out. That Writ being still in force at Common Law, and the same power in the Clergy, notwithstanding the Statute of Queen Elizabeth of the thirty-nine Articles, and the Statute of Heresy, upon the misfortune of Catholic Governors and Clergy, as in the Marlan days, that Writ is still in force, and may be put in execution (fn. 5) .

Tuesday, February 24.

The Black Rod, about ten of the clock in the morning, came to command the attendance of the House upon the King, in the House of Lords; where his Majesty, after a short Speech, prorogued the Parliament to November 10, without passing any Bill, this being the third Prorogation without passing any Bill. [And on

Footnotes

1 Lord St John.
2 See p. 154.
3 33 Hen. VIII. For being accessary to the murder of a Keeper in Sir Nicholas Pelham's park.
4 In the County of Derby two Appeals were made in fifteen years.
5 An Act for taking away this Writ was passed four years afterwards, 29 Charles II.