Debates in 1678
December (6th-18th)

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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 1678: December (6th-18th)', Grey's Debates of the House of Commons: volume 6 (1769), pp. 326-337. URL: http://www.british-history.ac.uk/report.aspx?compid=41011 Date accessed: 20 April 2014. Add to my bookshelf


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Friday, December 6.

Sir Trevor Williams (fn. 1) reports, by his Majesty's Order, That though the taking off the restraint from Mr Oates was not punctually observed, yet it should be, as to any Person of Quality, or Members of the House (fn. 2) , &c. [but that his Majesty did not think fit that any loose or idle persons should be admitted to come to him.]

Sir Harbottle Grimstone.] You have had it under consideration to preserve the Peace of the Kingdom, by a Bill for raising the Militia. That Bill is laid aside, though thought necessary by both Houses. As to this business of the restraint of Mr Oates, &c. he is used rather as a Criminal, than an Informer. But, Quid faciendum? Unless you intend to have the Evidence of the Plot stifled, you must do something. It is against all reason, but that they that come and give Evidence should go where and whither they will, for Evidence to fortify their own. As to this, I pray, "that this man may be removed into the City of London (they have a guard of their own Militia;) and that he may have his own liberty; and Counsel to come to him, and whom he pleases."

Sir Edmund Jennings.] You are told by the Reporter, "That any man may come to Oates, of the House, or the Committee of Secrecy, or the Clerks of the House." He is only restrained from "idle persons." It may be, some may come to him from the Lords in the Tower, to corrupt him. But if it be your desire that he should go out of Whitehall, I believe he may have his liberty granted him.

Sir Thomas Clarges.] I am sorry to hear that this course is still taken to stifle the Plot. This Discovery came first from Dr Tongue, in a Book he wrote against the Papists; and Mr Oates was to have murdered him for it. He not only made Oates a Protestant, but encouraged Oates to go amongst the Jesuits again. I suppose Dr Tongue is made a Dean, or a Bishop, since, for it. (Jeeringly.) But all this stifling the Plot has proceeded from some remissness of ours; from our not going about the enquiry of the concealment of this Discovery from Dr Tongue, from the 12th of August to the 29th; for there is a Misprision of Treason with a witness. I hope you will enquire into it. You are told, "that Members of Parliament may come to Oates, but not idle persons, &c." It seems, then, to be in the judgment of the Captain of the Guard, who are "idle persons." You will have but few discoverers come in, at this rate. When Oates came first to Dr Tongue, it was privately, to be satisfied in a case of conscience only. Suppose more Jesuits should come to Oates, in compunction of conscience, to discover; they are "idle fellows," it seems, and must not come to him. I therefore second the Motion, "That Oates may go into the City, and have no manner of discouragement put upon him;" for it reproaches both Religion and Government.

Mr Powle.] I think it impossible to suppress the Discovery of this Plot, such care and diligence having been used in it. (Jeeringly.) I would address the King, "that Oates may have his full liberty."

Sir John Ernly.] You have sent up to impeach the Lords, and Mr Oates is your Evidence. If I was a Papist, or one in this Plot, I would put myself into his company to cut his throat. When Oates impeached the Queen, it was so high an act, that his danger was the greater; and so he had more need of security. And that was the reason of the restraint of company coming to him. It is well moved, that, now he is your Evidence, he may have liberty to speak with whom he pleases.

Colonel Titus.] Amongst other faults, Oates is accused of being an ungrateful man; when he has been well used, he complains. His Father, his Counsel, pen, ink, and paper are kept from him, and he has not pocketmoney. If the House does not intercede for him, one of the last things I ever do, shall be to bring an Information to the House of Commons. If his Father be "an idle person," that must not come to him, any man that comes to him with information will be "an idle person." I would address, &c.

An Address was ordered accordingly, [desiring that all restraint may be taken off from Mr Oates, except the guard without his chamber.]

On Col. Birch's proffering to report from the Committee for disbanding the Army, which costs 50,000l. per month

Mr Sacheverell.] I move that there may be no more Report from the Committee for disbanding the Army, till we have an Answer from the King, that the Army shall be disbanded.

Mr Powle.] There are two ways of disbanding the Army; by Money, and no Money. If they have none, they will disband themselves. I would give no Money, under any colour whatsoever, till you have assurance that the Army will be disbanded. And I move that we may adjourn.

And the House adjourned abruptly.

Saturday, December 7.

The Bill for the more [easy and] speedy Conviction of Popish Recusants, &c. [was read the second time, and committed.]

Several Instructions offered to the Committee.

Colonel Titus.] I would make it "Felony, after having taken the Oaths and the Test, to turn Papist."

Mr Sacheverell.] I would have it "Felony for a Papist convict to ride armed, though commissioned by the King; and that any Protestant subject may have power to seize his arms, and, however commissioned, that a Protestant subject may stand upon his guard against him, for his safety."

Sir Henry Capel.] "If a Papist, after conviction, should ride in arms, that he be out of the protection and security of the Laws." And in a Bill by itself enlarge your Order so fully, that the Committee may have power to make the Bill more useful to you.

Sir Thomas Lee.] I would have the Instructions to the Committee thus: "That, by reason that Papists have escaped the Oaths, &c. and got the King's Commission, they who get any such Commission, for the future, may be out of the King's protection, and that the country may rise upon them." I would not have it in a Bill by itself. I would not have too many ships at sea at a time, especially when so preciously laden; the hazard may be the greater; therefore I would have it in this Bill. And likewise to consider the condition of the Quakers, who are not Papists, and yet will not take the Oaths, &c. and they must lose two thirds of their Estates for refusing; and those, I suppose, you aim not at.

Sir Harbottle Grimstone.] The King is the fountain of Justice, and has power over the Militia: But that Act for the Militia has not given the King more power than he had before. It is but declaratory of what the Law was before. The end of the Militia is to be considered; it concerns a great part of the Government, Pro defensione Regni et Regis. They were born and created together; and so far, we confess, the Militia is in the King's power. Salus populi suprema lex, is well grounded. If men will take up arms, whether by Commission, or not, they care not for the Law. Therefore I second it, "That (in this Bill, or any other) if a Papist recusant ride armed, the people may be invested with power to rise and disarm him." God forbid, the people should ever be brought into so desperate a condition, that they may not draw their swords to defend themselves!

Sir Charles Wheeler.] I never yet heard before, "that the people might rise upon any man." Power is in God alone, and those deputed by him. "That the people should rise"—I know not the meaning of that. I am as much against Papists being in arms as any man; but that the people should have swords in their hands, and muskets! I know not the meaning of this, "That the people may rise upon Papists that go armed."

Sir Harbottle Grimstone.] I stand up now to explain myself. When a Papist convicted is in arms, by Law I may resist him, as well as any one that would rob or break my house. It is as lawful to preserve the peace against public enemies to the Kingdom, as against foreign enemies; and they are as dangerous.

Sir William Coventry.] Papists are enemies, &c. not because they are erroneous in Religion, but because their principles are destructive to the Government where I live. Their principles lead them to rebellion. And the same reason should give occasion to no man else to rebell. But when there is no limitation to this rising upon a Papist, if a Catholic be in Commission, that 40,000 men may rise upon him—Is there any Law of England to justify the rising of a multitude? Take what course you will, but when there is matter of crime against a man, punish him criminally: But that every particular man should have power to make such a disorder in the Government—you may repent it.

Sir Robert Sawyer.] Your Member (Grimstone) intended not that a power should be in the people to rise, but for what was moved, that such persons as are convicted of Recusancy, and are found in arms, shall be guilty of Felony. That is legal; and the consequence will be, that, if any man invade me, he is an actual Felon; and the Law is now, that every man may apprehend a Felon. State it so, that it may be dangerous for any Papist to take a Commission, or bear arms. Then you prohibit them under the penalty of Felony, and leave it to the Common Law. Any Felon to do any act upon me, justifies me to resist him.

Sir Harbottle Grimstone.] We express ourselves in our own expressions, and our meaning is in our own words. They put other words to mine. I say, "That when a Papist convict is in arms, the people may have power to disarm him." I am against any popular sedition. I take not raising the people to be raising the nation; but that the neighbourhood may be in a capacity to suppress such men.

Mr Powle.] This is not to be looked upon as such an exorbitant opinion as to destroy the frame of Government. As the Law is now, any private man, upon just suspicion, may arrest and apprehend a Felon, or a Traytor. If there be a Breach of the Peace in my presence, I may stop those men. It is that, without which no Government can subsist. Every man has not an officer at his elbow, to arrest Felons, &c. Every man that sees him, may oppose him, without letting the thing run on till an Officer be fetched. Let not these things be run away with. In all times, if the Government be not good, that is it which disposes people to rebellion. In the late times, if there had not been some error in the Government, there had not been a 1641; and those persons that would have had the Government then reformed, were those that fought for the King. I have seen a list of fourteen Gentlemen in my country, that were in prison for refusing the Loan, and of them, twelve were actually engaged for the King in the late War. I will not wander too far from the business, but would have you commit the Bill.

Mr Sacheverell.] Without particular Instructions to your Committee, they cannot repeal a Law by a Clause. Give us back that Clause in the Militia-Act, and that of Corporations, &c. By that Clause, "All that oppose an Army, if they resist, are perjured, if that Army be commissioned by the King." I would have it once seen, and England know it, that, if there be such men in power and office about the King, that will not suffer us to defend ourselves against Papists, let them show themselves. Are not some of the choice men in England accused before you, &c? And shall we now stand at this? If we be denied defending ourselves, I'll go into the country, and pray for you.

Mr Boscawen.] This is a difficult Debate, and it is by reason of the misfortune of the times. If we have a Popish Successor, it is likely that Commissions will be given to those of his opinion. Will you make a Law, that those Commissions shall be void? as the Lawyers say, "voidable." And till that is done, will you sit still, and have your throats cut, and be mastered by the lesser part of the nation? If Commissions be given to Papists, suppose an hundred, and they endeavour to cut throats, must I go and desire the Sheriff to raise the Posse Comitatus? And, it may be, the Sheriff is one of them. If Gentlemen will propose any other way than what has been moved, to secure us, I would willingly hear it. Gentlemen are in danger as much as any sort of people in popular commotions. I would have Gentlemen calmly discourse it. If our safety may be obtained any reasonable way, I care not which way.

Some Gentlemen hissing at Sir Thomas Meres, for saying, "That he would not have the resistance of the Commissions go farther than the Magistrate"—

The Speaker.] If Gentlemen express themselves in that manner, they have been called to explain it at the Bar.

Sir Thomas Littleton.] "That such as go armed, &c. shall be esteemed Felons, but you restrain it to the Magistrate only to seize him by his Warrant."—If you do so, the meaning of it is, to make him a lesser sort of Felon than he that has stolen two shillings. A Papist in arms, who would destroy Religion and the Government, to be a lesser Felon than a pitiful little Felon! Laws are now making for the safety of Religion and the Government in futurity. How can you make a Law just to begin and end with a Popish Prince? Those who put them in execution may be ruined; as in H. IV. and E. IV. You must have a Law to be in force in all Princes reigns, that the Prince shall not wear them out, as has been done. This will be no diminution to the Prerogative of a Protestant Prince; but it will be some diminution to the power of a Popish Prince. I desire, "that Papists convict in arms, &c. may be Felons, and, when so declared, that they may be apprehended and pursued as Felons." This is a small matter for us to do. And if this be boggled as, I know not what can be farther done for our security.

Sir John Ernly.] This Debate is the greatest thing that can be before you. I am of opinion that something should be done to secure you, and with the most unanimity that can be proposed. I would not in this have exceptions for Quakers, and those of the Church of England. But he that refuses the Oaths, &c. I shall vengeancely suspect him. I think you should put all incapacities upon him to hurt you, and make it Felony to take up arms, and I would have nothing to fright people from prosecuting them as the Law directs.

Mr Sacheverell.] I would know, whether we may resist those fellows taken into the last Army, that have dispensations from the Oaths, notwithstanding the Declaration is to be made in the Militia Act, &c. for they are commissioned by the King. I desire you would read the Act of Association in the 27th of Eliz. And I would see the reason, why we should not be as tender of the life of the King, as they were of the life of the Queen. And why not as lawful to resist a foreign Army, as to bring in one? I'll ask no more than what has been formerly granted.

The Act of Association 27 Eliz. was read.

In substance, as follows: "That upon any invasion, rebellion, or hurt to the Queen's Person, the Queen, under her Great Seal, shall constitute twenty four at least of the Privy Council, having with them the Judges, &c. By virtue of this Act, they shall examine and give sentence, &c. and all persons so sentenced shall not claim the Crown of England, &c. And thereupon that all the Queen's subjects by all forcible means shall resist, &c. And if any thing shall happen against the life of the Queen, any one privy to the same shall not have power to claim the succession of the Crown; and all subjects, &c. may pursue to death any, who, by such detestable means, shall attempt the same. The Lords of the Council shall examine the cause of the Queen's death, and, by open Proclamation, shall publish the same, &c. and no man shall be impeached, in body or goods, for prosecuting this Act, this Association. And excluding the persons title, &c. or pursuing, &c. shall be expounded according to the true intent and meaning of this Act."

Mr Sacheverell.] You see, in this Act, they are called "loyal subjects" that associated themselves, whatsoever they are called to day. All that I ask, is, the Non obstante to enable the King's Protestant subjects to preserve the King's Person and the Protestant Religion.

Colonel Birch.] I am one of those that believe all the Bills and remedies named here are of no safety to Religion, or the King's Person, but by this Association. What you have done upon the table is rather to irritate and anger the Papists, than to any effect. All you have done yet, rather hastens the King's death. I have heard from the honourable persons, &c. formerly, that we should bring in such Laws as may suppress Popery under a Popish Prince, &c. It must not be tender treading that will continue the Peace of the kingdom. From this day forward, either this Debate will settle the Peace of the Crown, or else let us go home to-morrow morning. It has been said, "All Commissions given to Papists: shall be void" (by Temple.) But how shall I see a Commission out of a Papist's pocket? When they are got together in a body, how will you void them? I would have nothing took like popular rising: But when you are told of the Militia-Oath, and that for Corporations, &c. as the Law is, you must stand still, and have your throats cut; and must not those in lower places do so too? Papists have Commissions now, we see. Deal plainly now, and you will secure the King's life. It is not so new a thing that a Papist may be apprehended. Coleman said, in one of his Letters, "That if once Papists are free, &c. the Law is for us." Even for the King's sake, the Papists should be made in a worse condition by his death. As the Law is, if Papists be in every county commissioned, &c. we must all stand still, and have our throats cut. But it is a hundred to one that they will not have their throats cut, and then you will be sure to have tumults. Therefore I would have it as Instructions for the Bill, "That if any Papists convict shall assemble in arms, they shall be deemed Felons, and that any man may apprehend them, and that all Mayors, Bailiffs, and Sheriffs, &c. be required to arrest them."

Mr Secretary Coventry.] All men here have freedom to speak, or to hold their tongue. I confess it would be a good Law to make it the Papists confusion to have a Popish King. But we have so many new things started, that the first propositions are shuffled out. I am contented to make it what crime you will, for a Papist to take a Commission. But as for that mentioned in the Militia-Oath, &c. there is no need of repealing it; for when you have made those Commissions given by the King no Commissions, they are illegal, and you may resist them.

Colonel Titus.] Suppose the King grants a Commission to a Papist (it may be that is done already) and those Commissions are sought against; by the Laws you have in force it is penal. So that make these Commissions no Commissions, and you are safe.

Mr Sacheverell.] I desire, "That, if any foreigner shall appear in arms (for there is as much danger of a foreigner as of a Papist) he may be in the same condition as a Papist convict."

Resolved, That [a Clause be brought in, that] if any Papist convict shall take a Commission, or appear in arms, he shall be pursued, apprehended, and prosecuted as a Felon.

Resolved, That [a Clause be brought in, that] all Popish Commissions shall be declared void. And that all foreigners receiving Commissions, or appearing in arms, shall be in the same condition as Popish Recusants convict.

Monday, December 9.

[In a Grand Committee.] On the disbanding Bill.

Sir George Hungerford.] I desire there may be a Proviso added to the Bill, "to make it Treason to pay the Money granted for disbanding the Army to any other use of the Revenue."

The Speaker.] Will you make Treason in a Rider of a Bill, without any other solemnity?

Mr Secretary Coventry.] I have nothing to say against the intention of the Proviso, but I cannot agree to the manner of it, without commitment of it, or farther consideration.

Mr Vaughan.] Judgment of Parliament, in Q. Mary's time, was against multiplying Treasons. Though that was in an ill time, yet we had a good example against it.

Sir Robert Howard.] One particular care is taken for the Money, that when, it is deposited, &c. it shall not be diverted. If the place be robbed, must it be Treason in them that have the charge, &c? This only makes a noise, and possibly may give the Bill interruption in passing.

Sir Edward Dering.] No man can err, in this House, that follows the Speaker's Motion, not to pass a thing upon a sudden and hasty Motion, matters that concern estates, and lives, and corruption of blood, not excepted. The penalties are great in this Proviso—At a time you call this Treason, &c. you call it "his Majesty's Treasure," which is improper, the Bill putting the Money into the Chamber of London. The Gentleman's intention that brought in the Proviso is good. I would not have it cast out, but that the Gentleman may withdraw it.

Sir Thomas Lee.] This seems to raise a fear, that this Bill may have the same fate with the Militia Bill. If it should have such a misfortune, I hope another Bill may name the persons that were the occasion of it. The danger of placing this Money in the Chamber of London is not so great as is imagined. The Chamberlain is accountable for misapplying the King's Treasure; and it obviates the danger of Privy Seals.

Sir John Ernly.] For that part of the Bill which relates to the alteration of payment in the Exchequer to the Chamber of London, it is my conscience that the Army will be disbanded, and that induced me to the payment of it into the Exchequer, and nothing else.

Sir Thomas Lee.] I except against that Clause in the Bill, viz. "From time of Royal Assent."

Mr Hampden.] Royal Assent is determination of the time. It went backward and forward betwixt us and the Lords. In Sir John Coventry's Bill, &c. there is no such time. Royal Assent is entered on the Lords Journal on Record, but in the Bill there is no such time set down. I never saw it offered in any Act.

Sir Thomas Lee.] In Sir John Coventry's Act the Debate was upon the persons tryed; and an expedient was found out; the Sessions were adjourned to another time. I went to my Lord Chief Justice Hale to advise; and his first proposition was, to "make the Lords Journal a Record to that purpose." Next, "That it might be by indorsement of the Act." But the Clause was left out of the Act, and the Sessions were adjourned, as an expedient, &c.

Sir Richard Temple.] The Act must be tryed by the Record. And in construction of Law, every Act commences from the first day of Parliament, unless specially provided to the contrary. I would not have the Lords Journal a Record of time of the Act taking place, which may be misentered by the Clerk.

Sir Thomas Littleton.] Their Commissions are, by the Bill, void two days after Royal Assent passed. By that consequence, whoever leads his men to the Guards (if of the new-raised) either into the borders of Scotland or Jersey, is a Traytor. But that the men may not be in arms against Law, and guilty of Treason, I would have a day certain mentioned.

The Clause in the Bill was not altered.

[Sir Jonathan Trelawney, Prisoner in the Tower, (see p. 259.) petitioned the House for leave to go into the country for recovery of his health; which was granted.]

[December 10, 11, 12, 13, 14, 16, (fn. 3) 17, and 18, omitted.]

Footnotes

1 He had been ordered the day before to repair to Mr Oates, and know of him, how far his Majesty's Commands, for taking off the restraint upon him, had been observed.
2 This his Majesty told the Colonel of the Guard, who, on Sir Trevor Williams's showing him the King's Message to the House, went immediately to his Majesty, to receive his Commands, having not been made acquainted with his pleasure therein. See the Journal.
3 This day the Disbanding Bill passed.