Thursday, November 21.

[The Lords sent down the Bill for disabling Papists to sit in either House of Parliament, &c. with some Amendments, and a Proviso] exempting the Duke of York from taking the Oaths of Allegiance and Supremacy, and the Declaration, &c.

[Debate.]

Sir Robert Markham.] I am glad that the Lords have sent us the Bill again, and am not sorry for the Proviso in it, exempting the Duke, &c. If the Duke's relation to the Crown be considered, there is a difference between him and other Subjects, and I move you to pass the Proviso.

Sir John Ernly.] This with a salvâ conscientiâ to myself. I make a difference betwixt this Peer (the Duke) and all the rest. The Lords have made a great step in this Bill, that they have exempted no other persons; and I cannot but say there is great reason why this person should not be comprehended in the common calamity with the rest. If the Duke should be banished, or removed (he is out of the King's Councils already) from the King's Person, in the circumstances he is in, whether would it be better, to be removed, or continue in the King's eye, to be observed? Foreign aid, we see, has been treating for with the French King by Coleman—If the Jesuitical party should despair, and fall upon any person, I know not the consequence—I fear not what can come to us, if the Duke be amongst us. But I think in conscience, that if we banish the Papists, and have the Duke under the King's eye, there will be no danger—There is but this one person exempted by the Lords, &c. and no great danger of him but what is in your power to remedy.

Sir Winston Churchill.] Upon this disadvantage, when I hear so loud a cry, "To the Question," I should not speak, but to discharge my conscience. Though I think not to prevail, when I heard so loud a cry, &c. against what I am moving. The Lords are so near the Government, that they see more than we. They have not so slight stakes as to oversee their game. I think that the Monarchy of England is concerned in this. Consider the consequence, if you reject this Proviso. How far will you force so great a Prince to declare? You will give your adversaries great advantage. Suppose the Duke takes not the Oaths, &c. All that do not take them, &c. will you make them Papists? There were some at your Bar that were Quakers, who would not take them; will you drive all that herd of swine into the sea of Rome at once? If those that sit in Parliament must take them, those out of Parliament must too—(And so be sat down abruptly.)

Sir Charles Wheeler.] I agree to the Proviso. If the Duke be in a capacity to sit in the Lords House, then the Debate you have adjourned, about removing the Duke from the King's Presence and Councils, you cannot proceed in. If the Duke remains in the Lords House, he cannot singly and solely, on his own Vote, stop any Bill there, and this very Bill has passed that you favoured so much. This Bill will prevent the danger your Vote expressed of the Plot, and the Duke is not included in your Vote, &c.—I would therefore pass the Proviso.

Mr Secretary Coventry.] You have the greatest matter before you that ever was in this House. The danger of disturbance of Religion, is one of the most pernicious apprehensions imaginable. If this Prince should go into another place, it must cost you a standing Army to bring him home again. These things to be done upon the Heir of the Crown were never before. It was in the power of Queen Mary to see Queen Elizabeth, and of Edward VIth to see Queen Mary. Suppose the King on his deathbed; must he not see the Duke, to give any order about the affairs of the Kingdom? It is a hardship not to be offered to a condemned person. You are losing this Bill, by casting out the Lords Proviso. And these Popish Peers sit in the Lord's House. You lose that thing too, and it cannot be remedied, and the Lords will carry any other provision you shall make against Popery—Deny it to be in the King's power to see his brother, and he him, and the consequence will be fatal.

Sir Edmund Jennings.] You have not yet made any steps towards the safety of the Kingdom. The head-ach coming from an ill stomach, to cut off the hair and apply oyls to the head will do no good, when the way is to cleanse the stomach. It is not removing Popish Lords cut of the House, nor banishing Priests and Jesuits, nor removing the Duke from the King; but it must be removing Papists from the Nation. As long as such a body of men are here, you must never expect that the Pope, with his Congregation de propagandâ fide, will let you be at rest. Till you do that, you do nothing; when that is done, you need not trouble yourselves with the succession. I have no particular prejudice against any of them. I have friendship with several. But I am more for the security of the Nation—You may endanger the Nation by this difficult point of removing the Duke out of the Lords House, and I shall leave it to you.

Sir Allen Apsley.] When the House is all of a mind, as to the Duke's valour and exposing himself for the honour of the Nation, we cannot, without ingratitude, throw out this Proviso.

Sir John Hanmer.] If you throw out this Proviso, you endanger the Nation. You know what you have done in rejecting the Duke's servants. You had better impeach the Duke than throw out this Proviso, and take him from his Brother. Keep him here, and you may breathe the wholsome Doctrines of the Church of England into him. And because I see the whole Bill in danger, if you throw out the Proviso, and Religion too, therefore I am against throwing it out.

Sir Jonathan Trelawney.] The consequences may be so fatal, if you throw out this Proviso, that I am for agreeing with the Lords in it. The scope of the Bill is not only to suppress persons that may propagate the growth of Popery, but to break their future hopes. This before you is of the greatest moment and concernment, that ever came before a House of Parliament. I speak sincerely; by throwing out this Proviso, give you not the greatest advantage to the Papists to drive the Duke into Popish hands? Should that day come, of the King's death, what disobligation do you put upon the Duke! For God's sake accept the Proviso.

Those against the Proviso sat silent.

Earl of Ancram.] This Debate looks as if it was not upon good ground and reason, but a resolved business. Nobody opens his mouth to answer any thing that is said, but only to call for the Question. If so, put it to the common fate of Aye and No. I think this is a subject for another man's brains and tongue better than mine. But pray consider; the Duke is the King's only Brother, the Son of that Martyr who died for his Religion. The Duke is said to be "but a subject;" but he is another kind of subject than Lord Carrington (lately secured about the Plot.) It is said, "the Duke is not Heir apparent;" but I am sure he is apparent Heir. Generations to come will curse this day's work; therefore pray consider of it.

Sir William Killigrew.] I dread taking the Duke from the King—(and weeps.)

Sir John Birkenhead.] In Henry VIth's time, when all the Peers were sworn to the Great Charter, and not to take up the Difference between the Duke of Norfolk and the Earl of Warwick, the Make-King (fn. 1) , propter celsitudinem et excellentiam Domini Principis, he was not obliged to take the Oath—To make a Law that the King shall not go to his Brother, I understand not; it is the same thing as that his Brother shall not come to him. Do you think the King will give his consent to this Bill, to restrain himself thus? Cannot the King go to see Mr Coleman, if he will? And not go see his Brother! You here will make a Law, that the Duke shall be removed from the King's Presence. Whither shall he go? Into the country? Or will you force him beyond sea? If he was a pusillanimous Prince, of weak capacity; but he is one of the most magnanimous Princes in the world. He renounced the French interest, that used his Brother ill in his exile—Drive him into French hands! I speak in the presence of God, I think, if you pass this Proviso, it will be the greatest means to get him to our Religion. For God's sake pass this Proviso.

Mr Sacheverell.] Lord Ancram said, "he wonders no man answers what is said for the Proviso;" but I wonder they should offer such arguments. The Heir apparent was never excepted from taking Oaths for Preservation of the King's Person. Show me that ever he was. I wonder, why, when the Preservation of the King's Person is the case, the Duke should be excepted. I would gladly know how these Gentlemen know that the Duke is a Recusant, and will not take the Oaths nor the Test. Whoever supposes the Duke to be a Recusant, does forbid him the King's Presence; therefore I think all that argument is out of doors.

Sir Robert Carr.] You once excepted a Popish Priest from taking the Oaths, &c. (fn. 2) I fear, if you reject this Proviso, it will hurt what you would preserve. If hereafter there should be occasion for this, let it be in a Bill by itself. Till I have better reason than I have yet heard, I must give my Vote for the Proviso.

Sir George Downing.] I am one of those that will agree to this Proviso, and I will give you my reason for it, for my own justification. I had rather have half a loaf than no bread. I say not that the Duke is a Papist; I know nothing of that; but if he be a Papist, I had rather he sat alone in the Lords House, than with all the Popish Lords. Next consider, whether it is not better in prudence, for the good of the kingdom, that the Duke sit in the House of York (He meant "the House of Lords.") I had rather have him amongst Protestants than Papists,—in the heap of Papists. It is better in prudence to endeavour to keep him amongst us, than to thrust him amongst others—The Duke is a person to be led and not driven, to be won and not to be frighted, to be persuaded and not compelled. It is our unhappiness that this is come into his mind. Suppose the Duke leaves the Kingdom, are there not Popish Princes that will receive him? You drive the Duke, by this, &c. from the King, and the Duke goes farther than you would have him. Will not Catholic Princes receive and entertain him? How will you get him again? I would agree to the Proviso.

Sir Thomas Higgins.] Those Gentlemen against the Proviso think it dangerous that the Duke should be in the House of Lords; but it is most demonstrable that the danger is on the other side. It is that which concerns Posterity, and, for aught I know, will entangle a War on Posterity. Let Gentlemen, who are so earnest against this Proviso consider, should the Duke think himself disobliged, and go beyond the sea, and the French King support him with an hundred thousand men; could a greater blow be given to the Protestant Religion? The Heir of the Crown to be in Popish hands, the Duke there, and all Catholic Princes contribute to his Restoration to the Crown! What danger is there in his sing'e Person in the Lords House? For you see this Bill has passed. As we tender Union with the Lords, Satisfaction to the King, and the Quiet of those that come after us, let us agree to the Proviso.

Sir Charles Harbord.] I will tell you a story, and a true one, of Queen Elizabeth. When she was Lady Elizabeth, and in Queen Mary's hands, two Articles were against her, to take her off; one was, that she was of the Conspiracy with Sir Thomas Wyat. They were brought in by the Pope, and ratified by the Emperor. My Lord William of Pembroke, (that great Lord who could neither write nor read) said to King Philip's great Minister of State, "If the Lady Elizabeth be taken off, and Queen Mary die, there is an end of your Master in England, for Mary Queen of Scots comes in as next Heir to the Crown. But your Master may have a Dispensation to marry the Lady Elizabeth; she is the Heir apparent, and then no man can come betwixt the Kingdom and him;" by which means Queen Elizabeth was preserved—The King may have children, and, till he have, the Lawyers call the next "the Heir presumptive."—The consequence of rejecting this Proviso must be to expose the Duke, and then where are you? It will be the consequence of Mary Queen of Scots, &c. Should the King die (which God forbid, so long as I, or any man here lives) the Duke may come back with terror and confusion. I am therefore for the Proviso.

Sir Richard Temple.] This is the same Debate (about removal of the Duke) that was adjourned to this day, with this Proviso. I am a friend to the intent of this Bill, and therefore to the Proviso. I would distinguish the Duke from others of the Lords—Would you break all the wheels of this design, is it not better to keep the Duke here alone with us? That is the way to make him ours. Wherever the Duke goes, his title to the Crown goes along with him—The matter of Popery will go on, the Duke absent, better than when the King sees all things. If you will take off all the wheels of this pernicious design, make the Duke yours, and keep him with you.

Sir Edward Dering.] The dignity of the persons makes the greatness of the thing. If we disagree with the Lords in this Proviso, and leave it out, and the King give not his consent to the Bill, your Bill must fall, or runs a great hazard. I would agree, &c. and when that is done, move the King to give an immediate consent to the Bill. You have then but one Popish Peer in the Lords House, (if the Duke be one.) You may have great advantage in other Bills of Popery, by getting this. I would not lose the rest, for the hopes of having this without the Proviso—Upon these considerations, I move you to pass the Proviso.

Mr Waller.] I am much perplexed in this business. The Debate of removing the Duke, &c. has been adjourned several days, and always put off, but now blown in by a side-wind. Still the Debate has been put off; that was some sign you would lay it aside, I am sorry for the Proviso, I wish we had had the Bill without it. But you expound that which I never understood, that the Duke, by it, should be removed from the Presence of his Brother. From my experience abroad, and what I have read at home, I have ever observed, that Princes of the Duke's magnitude are like fire out of the chimney, and put in the middle of a room; it makes a great blaze, but sets all on fire. Edw. IV. did not agree with his cousin the Duke of Hereford. The Princes of the Blood in France are generally of a different opinion with the Ministers of State—They went away, but the King did all he could to get them to Court again. When the Civil Wars were in France, Hen. III. sent for the King of Navarre to marry his sister to be a help to him. David himself was a holy and a good man, but Absalom would not stay at Court. David was afraid of his life, for his servants ran away from him to Absalom, as Jonathan told him. Foreign Princes will make use of the discontents—multis utile bellum. This removal of the Duke is of vast consequence. Gentlemen are in earnest against Popery. If I thought this Proviso was not, I would be against it. There are Laws against Papists. This will make them shuffle again, and the Papists can have no hope but by disorder or despair. By union in one Vote, when we were at Peace amongst ourselves, we gave Spain a kingdom, viz. Sicily. What can we not do if we have Glory at home, and Peace abroad? I would lay aside this Proviso, as the most dangerous thing in the world.

Sir Thomas Meres.] I value every man's reasons, and this is the same thing spoken to before; but now the thing comes from the Lords. I remember only, that, upon the former Debate, this side of the House was speaking, and that side of the House sat silent. I will not in length run into argument. On one side, the reason against the Proviso is, prudence and safety. On the other, civility, gratitude, and compliment. I would be on the civil side, were not the safety of the nation concerned. No doubt but Sir Edmundbury Godfrey was civil to go to Somerset House, &c. and he was civil to Mr Coleman to compare notes with him: But he lost his life by it. I think that the Bill, as we sent it up to the Lords, names not the Duke; and I would avoid naming him in the Proviso. The Lords name him. I am afraid to name him so, as if possibly he may be a rebel, as if possibly a Papist—This Bill names him not. I had rather this Bill had never been brought into the House, than that this Proviso should name the Duke. I name him not so, but if the Proviso will name him so, it is a beginning of Toleration—I am against the Proviso for the Duke's sake.

Sir Philip Warwick.] At the beginning of the Long Parliament, no moderation could be had between the King's Prerogative and the subjects Liberty. Nothing was more unjust, nothing more unfortunate. I would rather consider that a Popish Successor may not be, but a Protestant of our Religion.

Sir Henry Capel.] It is said by Warwick, "no moderation could be had in the Long Parliament, &c." but it was neither imprisonment of the Members, though that broke into Laws and Liberties, it was not the violation of property by illegal taxes, but it was the unhappy hand of Popery which brought that disorder in, and possibly shed the blood I came of—(his father, Lord Capel.)—Since the King's Restoration, Popery has played in Court, in our negotiations of War and Peace, of setting up Ministers and taking them down; and God knows where it will end—I have a representation as other men have; wife and children, and all is at stake. Will not this startle a great man? I hope it will. Were it not for hope, the heart would break. I hope yet that this great Prince will come into our Church—But will you, by admitting this Proviso, have all our tongues tied, and by Law declare the Duke a Papist? Shall this be done by a Law? If it must come from us, this is not the time. If once I can separate the Duke's interest from his person, I would serve him. Press down that Popish interest more and more by Law, and when the Duke is naked, and clear from Popish interest, then it is time to offer our services to him. It is in his hands to lave this whole Nation, but I will never allow an argument, as this Proviso implies, that a Peer shall do any thing against his Country—When he is naked and alone, I will serve him, and he may serve himself.

Sir William Coventry.] A Gentleman on the other side of the House has said one word that has awakened me. In point of gratitude, I need not tell you my obligations to the Duke (fn. 3) . I will not deny a great deal of what has to-day been started. The danger of the Proviso is only reasons from the presumption of the goodness of this Prince's disposition. I shall say but one word, though, I apprehend, not any thing I can say can prevail in this matter. Consider whether this Prince has not been useful to you. Whether he has not made a greater step to the Protestant Religion, by marrying his daughter to the Prince of Orange, which had his concurrence—From that instance, he is so far from danger, that he has been a help to us—This is the reason why I am for the Proviso.

Several cried cut, "Coleman's Letters, Coleman's Letters."

Sir Robert Howard.] Capel's father would have fought for the Crown, whatever Devil had raised the storm against it. This Proviso is a single disposing of a person for the security of the Nation. Excluding him (the Duke) from the Presence of the King, is it meant eternally? (It is granted he may stay thirty days, &c. by Warrant from the Privy Council.) What will hold of all you have done, if the Crown come to him? What will become of you, if an exasperated Prince come to govern, though not of so great a spirit as the Duke? I, in my extremity, would scorn to do an act so low, that I would not have disdained to do in my prosperity. The proposition of doing good by this, &c. is to do nothing, for it is but the shape of a thing, and not the thing itself. He is not a man in ordinary condition of other Peers. He is separate from other subjects, and by a Title. The Duke sees no Catholic Lords come to the House of Peers more. He sees he is separated from them by this Proviso; and will a man in his condition, preserved by a Parliament, put himself upon mischief? Will that be his gratitude, think you? We all respect his person, and may hope, that, when he sees his own temper so different from us, he will embrace that here which he will never find in the Popish Religion. He is safe, when others are rejected, he is preserved, and may return more useful to the King and us.

Sir Thomas Lee.] This is an unfortunate matter before us. As this great Person here is remarkable for the match of his Daughter with the Prince of Orange, and no less remarkable that both his Daughters are bred up Protestants, it makes me think, that this Proviso is an unfortunate reflection on the Duke, brought on by them that shelter Popery under his Name. It is not so much from the Papists, as the Protestants, that act the part of Popery, to do their own work. Those that support the interest of the Papists, however they call themselves Protestants, do more to support Papists than Papists themselves. It does not appear plain, that the Duke is a Papist, and that he will not take the Test and Oaths, &c. If it falls out that he should not, the inconveniences may be easily obviated by a Bill, and the greatest happiness to the Duke—I see no change in affairs, or the least step in Councils altered since the discovery of the Plot, which puts me in mind that the Duke has not influenced all these Councils, and it is not in his power to do it. (I know not the prospect others have of it.) But when I consider, what will become of Gentlemen that have Abbey-Lands, when they are told by the Priests on their death-beds, that they cannot die in peace without restoring them? If we restrain not the Priests, there will be no need of an Act to restore Abbey-Lands, they will return to the Romish Church of themselves; as if to prevent Popery, you will pile up faggots to fire Protestants, and will need nothing but setting them on fire, and lay all this upon the Duke. For the regard I have for the Duke, I agree not to use the Duke hardly, but if the Duke cannot comply with the Oaths, &c. it is for his safety, that it is others, and not he, that are the cause of it; other men sheltering themselves under the Duke. No man knows, but that a settled opinion in the nation, when disturbed, may draw on a rebellion. No man can say but this Act, &c. is necessary, and is not this Proviso enough to raise all the people in rebellion? It is for the Duke's sake therefore that I would reject this Proviso.

Sir Robert Sawyer.] That Statute of Hen. VII. which made it not criminal to assist the King de facto, &c. was made for the safety of the nation, when the Crown had been tottering to and fro, between the two Houses of York and Lancaster; but it alters no man's right to the Crown. But I prefer a right title before all other considerations whatever—I am sorry for this Proviso. I look on it as the greatest reflection on the Duke that can be. The Proviso is exactly contrary to the title of the Bill. Here is a Proviso for a person to be excepted from the necessary means to that end. Either the body of the Bill is not an effectual remedy, or there are persons that should not contribute to the Bill—I would have any man give me an instance, that ever any persons were excused from the Oath for the safety of any King's Person. In lesser concernments they have. We ought not to presume the Duke to be a Papist, and this exemption of the Duke from the Oaths presumes a principle in him opposite to the King's preservation. It has been said, "that this Proviso will shut the Duke from the King's Presence;" but I think it does not. The Duke is not of that principle to divest the present King of a great part of his Government, which Popery does. This Proviso is to exempt a person, in dangerous times, from the Oaths of Allegiance, &c. I hope the Duke will take the Oaths. I have no reason to imagine the contrary, when the wisdom of the whole Land thinks it fit; and the King is safe with it, and without it he cannot be safe. For respect to the Duke, I will go as far as any man; but I cannot think any person ought to be exempted from the Oaths, when the safety of the King, the Government, and the Protestant Religion is concerned.

Mr Sollicitor Winnington.] The posture of things being so as we apprehend, it is every man's interest to save the Nation from Popery. The Question is now, "whether we shall receive this Proviso to exempt the Duke from the Oaths, &c. I think, the safety of the Nation, the preservation of the King's Person, and the Protestant Religion must be the ground, let the person or quality concerned be ever so great. Now whether your rejecting or retaining the Proviso is for the safety of all three, is the Question—It is said, "that the Proviso promulgates to all the world, that the Duke is a Papist." It is an argument that has a great deal in it. But as this Proviso stands, it brings no new advice to the Kingdom that the Duke is under those apprehensions, but, è contra, there are those apprehensions without the Proviso. I will say nothing of my own personal gratitude to the Duke, but speak my mind plainly—Notwithstanding what is reported of the Duke's Religion, for aught that appears, the Duke is but in a deliberative state, and God may so dispose his heart, that he may come over to us. This Proviso is not of that dire effect as is thought—Suppose the Duke be a Papist, is it not for the safety of the Kingdom, that the Duke be kept with the King in his presence, rather than be sent amongst all Papists? If the Bill pass, it is an exclusion of the Popish Lords from that House, and Papists from the Court, "not to be there above thirty days in a year, and with Licence from the Privy Council," so that, methinks, the strength of the argument lies that way. The Duke being in a deliberating state, I hope that he will follow the example of his grandfather, Henry the fourth of France: When he saw the universal genius of the Nation for a Religion, he complied with it. I hope the Duke will consider of it. Consider, the effect of the Proviso can have no operation on the Duke, if he be King; then it ceases. You need not fear, when the Duke is alone, but he is in a safer posture, than amongst the Popish Lords, &c. It is said by Sawyer, "that this Proviso is against the title of the Bill:" But it has no incongruity in that, for all Provisoes seem to degenerate from the Bill, else they could have no such appellation. I am for the Proviso.

Sir Thomas Meres.] This Proviso, passing as now it is, spoils all future expectation from this Bill.

Sir Charles Harbord.] This Proviso being cast out, there is more danger to the Kingdom than in any thing in the world. I may be heard twice too, as well as others.

Lord Cavendish.] I cannot agree to the Duke's being declared a Papist by Act of Parliament, till I hear the Lords reasons for the Proviso. If we agree to the Proviso, we cannot hear the Lords reasons. Possibly I may be convinced by the Lords, but I am not by any thing I have heard yet.

The Proviso was agreed to, 158 to 156 (fn. 4) .

Mr Southwell.] I move that you would adjourn, for now the Proviso is agreed to, the Bill is worth nothing. If the Duke come to the Crown, he may call whom he pleases into the Lords House.

Mr Hyde.] If the majority be of Sacheverell's mind, you may adjourn.

Sir Thomas Meres.] I hope that those Gentlemen that were for the Proviso will help us on with some Bills for suppression of Popery, to amend this, for the Proviso makes it little worth.

Resolved, That Reasons be drawn up to be offered at a Conference for not agreeing with the Lords in their second and third Amendments, &c. [relating to the servants of the Queen and Dutchess of York.]

Mr Bennet.] I would have you appoint a time to consider of the Address for the Duke's removal from the King's Presence and Councils. If Popery must come in, I would have it come easily, without force.

Sir Winston Churchill.] I would have Bennet reproved for what he has said.

Mr Finch.] I hope you will have good fruit of this Bill. If this Proviso had not passed, you would have had no fruit of the Bill, nor the Session neither, nor security for the Protestant Religion. It is the means to preserve the Nation from Popery.

A Breach of the Peace happening in the House, between Sir Jonathan Trelawney and Mr Ash:

The Speaker said,] I know not who was the author, or occasion, of this disturbance, but be my relation ever so near to them (fn. 5) , I must tell you who they are that have given blows in the House: They are Sir Jonathan Trelawney and Mr William Ash.

Mr Williams.] I saw something that passed betwixt these two Gentlemen. I am sorry I saw what I did see. There was such a case once in Westminster-Hall, and it puzzled the Judges. I am sorry for this case, now we are securing the Nation by the Militia, that the Peace should be broken amongst ourselves. What has passed looks like an unhappy omen.

Sir Jonathan Trelawney.] I rise up the earlier to speak, because I wish this had been in another place; but perhaps in a more sacred place than this, if any man should call me "rascal," I should call him "rebel," and give him a box on the ear. The cause of the quarrel that happened was this. Colonel Birch was saying, "Lose this question (about the Proviso) and he would move for a general Toleration." "No," said I, "I never was for that." And Ash said, "I am not for Popery." Said I, "Nor I for Presbytery." I came to Ash, and told him "he must explain his words." Said Ash, "I am no more a Presbyterian than you are a Papist." Upon which I said, "Ash was a rascal," and I struck him, and should have done it any where; but I am sensible it was in heat, and I humbly ask the pardon of the House for it.

Sir William Harbord.] He has behaved himself like a man of honour. I must say this, I saw Trelawney strike a stroke.

Sir William Portman.] Here has been a just account given of the thing. I pray God there be no ill consequence of it.

Mr Sacheverell.] I have a great respect for the two Gentlemen, but more for the preservation of the Peace of your Councils. If you put up this, and make not an example, you do not justice to yourselves.

Lord Cavendish.] I allow both the Gentlemen to be in fault extremely. There can be no excuse made for ill language, nor blows, here, but you must make distinction. You ought, in your censure, to go first on the aggressor, who has done so great a fault contrary to the Peace at this time—You can do no less than send him to the Tower, and expell him the House.

Mr Williams.] By the Orders of the House, if you debate the censure they ought to withdraw.

The Speaker.] If you go on in the Debate, they must withdraw.

Mr Ash.] You have a relation from the Gentleman, which is, in a great measure, true. I hope you will allow that the provocation was great. I do acknowlege I have done a great fault, and I humbly ask the pardon of the House.

Mr Secretary Coventry.] There can be no Debate who shall be punished, or who not, till they are both withdrawn.

Sir Thomas Meres.] Who provoked, or who followed the provocation, must be an after Debate. But neither of them ought to sit; it will be voting in one another's case.

Sir Thomas Lee, upon the Speaker's Motion, "That both of them should be in custody of the Serjeant," said,] You must commit them before judgment be passed upon them, and then they ought to come upon their knees to the Bar, before they be discharged.

Sir Thomas Littleton.] It is not an equal way of proceeding. The Speaker says, only, "in safe custody." It may be others think they do not deserve commitment at all, or one to be committed to the Serjeant, the other to the Tower.

The Speaker.] There is nothing more equal than to put them both into the same condition, and to order it upon your Books, "that it is for security, till the House consider how to proceed.

Ordered, That Sir Jonathan Trelawney and Mr Ash be secured by the Serjeant at Arms, for having committed a breach of the Peace in the House, untill the matter be [examined and] determined by the House.

Lord Cavendish.] I move, "that Trelawney, as being the aggressor in this breach of the Peace, may be expelled the House."

Mr Booth.] Trelawney came to Ash, and reflected upon his family for being "Presbyterians and rebels." You can do no less than send him to the Tower, and expell him the House.

Mr Bennet.] When I consider the noise without doors, and how your Members are reflected on for what they do here; and that when I had the ill luck to displease the Court, they said, "there goes such a rogue, he is for a Commonwealth;" and when families are reflected upon, notwithstanding an Act of Indemnity and Pardon, what will be the end of all this! Though I can justify myself from all this. My father and grandfather were for the King, yet I have heard myself called "fanatic," where I durst not answer again. Whoever calls a man "rebel" here, deserves to be expelled the House, and I would have but that one punishment for Trelawney.

Sir John Talbot.] Your first Question must be "whether Trelawney was the first aggressor," and put that Question.

Sir Charles Wheeler.] He that strikes again, makes himself his own judge. Both have broken your Order. (He was mistaken, and out, and so sat down.)

Sir Robert Dillington.] It was my chance to be by, when the difference happened between these two Gentlemen. Colonel Birch said, "he was an old soldier, and was for making a safe retreat, and the best way now was for a Bill of Toleration." Trelawney said, "I am not for tolerating Presbytery." "Nor I," says Ash, "for Popery." And this was all the provocation that Ash gave to Trelawney.

Sir Thomas Meres.] Trelawney names "Presbytery" first, and strikes first: Pray determine that, and then come to the rest.

Earl of Ancram.] Where the honour of the House is concerned, I will speak my mind freely. I will not come to the provocation, but the action. It is one way to do an act out of the House, and another in. The Speaker's prudence saved the House once, in a disorder in the Grand Committee, from some great misfortune (fn. 6) . A blow struck in the House of Commons is a blow struck at all the Commons of England; all are struck, and it may go farther. Private persons must not wound all the Commons of England. I leave it to you.

Mr Secretary Coventry.] All offensive language is to be punished. But if Trelawney was accused by Ash of "Popery," it was as great a provocation as for Trelawney to accuse Ash of "Presbytery." I will put you in mind of a long Debate once here of a difference betwixt Mr Marvell and Sir Thomas Clifford; they both asked the forgiveness of the House. It went so far, that, because the words were in priority to the blow, Mr Marvell, who gave the words, asked pardon of the House first.

Sir Nicholas Carew.] If the provocation was in Clifford's case for words, &c. this is another case. To be called "son of a rebel, and descended from rebels," is the greatest breach of good manners that ever was. It is not a time now to break the Act of Indemnity. Let us unite as fast as we can—Those that were rebels were active in bringing in the King. Though, as for myself, I have suffered by the times, both in my person and estate, I am not for breaking the Act of Indemnity.

Mr Williams.] I hope you will not make your own Court less than Westminster-Hall. I would punish Trelawney by expelling him the House.

Sir John Ernly.] I move "that Trelawney may be sent to the Tower, and then that you will consider what to do with Ash." I would not consider the provocation on one side or the other. We saw the blows, but heard not the words. Both struck, and pray send them both to the Tower.

Sir John Birkenhead.] See the case of Weston and Drury who fought. It is in your Journal, 4 Edw. VI.

Mr Williams.] If the first Question be for sending them to the Tower, I will give my negative, and then for expelling, he may go scot-free.

Sir Thomas Littleton.] For settling the Question, and declaring the matter of fact, persons may speak more than once—Sending a man to the Tower, and in three or four days to let him out again; is this any thing of punishment in comparison of the offence? I would rather give the thing all up—Just as you punished the Sheriff of Northamptonshire (fn. 7) .

Mr Secretary Coventry.] If you expell Trelawney, you take away the freehold of them that sent him hither. The Law considers mediums, when things are done with intention and in cold blood. I would know, what a Gentleman should do, in such a case as this. But the fact is done; put therefore such a Question, as you have examples and precedents of. Send them both to the Tower.

The Speaker.] I must do right to the House. The first Question moved for was, "whether Trelawney should be expelled the House."

The previous Question for expelling Trelawney passed in the Negative, 130 to 110.

Sir Eliab Harvey.] Now this Question is over, I am against sending them to the Tower. One shall be called "rebel and traytor," and both have equal punishment. Ash shall pay 50l. fees, and Trelawney nothing.

The Speaker.] I will make you a Motion, "that Sir Jonathan Trelawney may be sent to the Tower, there to remain during this Session of Parliament." The person of Mr Ash is nearest in relation to me, and I would be nearest in my service to him. But pray regard your own honour, regard yourselves.

Sir Thomas Meres.] What you have moved is most worthy, and I am for it.

Resolved, That Sir Jonathan Trelawney be sent to the Tower, there to remain during this Session of Parliament.

On Mr Ash's punishment.

Mr Williams.] Where the Law acquits him, I suppose you will not condemn him, here—It being true that Trelawney said the words, you have punished Mr Ash by commitment to the Serjeant. It is true, a man may strike in his own defence; it is lawful. It is plain, the first provocation was from Trelawney. What happened from Ash is justifiable in Law.

Serjeant Gregory.] I hope you will not punish a man that has committed no fault. If the second blow appears to be in Ash's own defence, the Law, upon an action brought, makes him not guilty. He had worse words than "rascal" given him, before he gave any. Ash being guilty of no crime, I hope you will inflict no punishment.

Sir John Birkenhead.] I wonder that a man should take the sword out of the Magistrate's hand, and that should be no crime, and the Long Robe should say "it is no offence." The blow was given in the King's House, and, by the Saxon Law, it was death, and, by a continuando, 28 Henry VIII. drawing of blood—Let Ash be punished by you, lest he have greater punishment.

Serjeant Gregory.] The affront was not given to the walls of the House, but to the Speaker, sitting in the Chair of the House.

Sir John Birkenhead.] By the 28th Henry VIII. if a man strikes in an integral part of the King's Palace, he might as well strike in the King's bed-chamber.

Earl of Ancram.] I have known that misfortune of words, amongst brave men. Words may make reparation for words; but blows are for a dog, and not a quarrel to be taken up. Here has been a blow given in the House of Commons. A man that sits here should have his understanding so far about him, that a word should not bring him so in passion, as it would do in another place. Truly I think Mr Ash pardonable in this case; and I would have him reprimanded only in his place.

Which being ordered, Mr Ash was called in.

The Speaker.] Mr Ash, the House has considered the disorder you committed, and the provocation that was given you. They have a tenderness for every Gentleman that is a Member; therefore they have thought fit to proceed tenderly with you, only. When you make the House judge, &c. you make yourself no way justifiable, but by extraordinary provocation and passion. And you are to proceed no farther in this quarrel with Sir Jonathan Trelawney, and the House requires you to declare it.

Mr Ash.] I acknowlege that I have committed a great fault, but there was a great provocation to it. And I shall humbly acquiesce in the determination of the House. I shall proceed no farther in the matter, and I acknowledge the great favour of the House.

Sir Thomas Littleton.] I move for the same engagement from Trelawney, "That he do not proceed any farther in this quarrel, either by himself or his friends." For else, when the Session is ended, there may be disorders, and he not in your power to punish. And I move, that the Speaker require Trelawney, in obedience to your commands, not to pursue the quarrel. And I believe he will give obedience to it.

It was ordered accordingly.

Footnotes