Grey's Debates of the House of Commons: Volume 1. Originally published by T. Becket and P. A. De Hondt, London, 1769.
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Wednesday, April 1.
[A Debate arose about chusing a Chairman for the Grand Committee, in the Bill for raising 100,000 l. at least, upon wine and brandy. No question was ordered to be put either upon Sir Charles Harbord, or Mr Steward; but only, whether Sir Charles Harbord's excuse should be admitted or not. Mr Steward took the Chair.]
Mr Swynfin.] Against having it in the power of the Commissioners of Accounts, or Lords of the Council, to declare, when the sum is raised, and the duty must cease.
Sir William Coventry.] Would have a Committee from this House be appointed, to know what the farmage, at the Custom-house, of wines will amount to, to proportion this thing accordingly.
Sir John Birkenbead.] Conditional Acts there are several; as that of the repair of Dartmouth and Plymouth harbours, which is entrusted in the Trinity-house to be answerable to the Lords of the Council—The threemonths Tax for the Militia conditional, upon foreign invasion.
Colonel Birch.] Would have it treason to pay or receive any money upon the wines at the Custom-house, after more than the sum granted be raised.
Sir Thomas Meres.] It is not to be a thing presumed, that a breach will be with the Parliament, upon so slight an occasion as the raising a little more money than the Act limits.
[The Committee resolved, and the House agreed to the resolution, That for raising the whole sum of 300,000l. with interest, the imposition on Wine and Brandy should be continued two years, unless it should be sooner raised; but that if the sum should not be raised within the time, it should be supplied by an imposition on Wines and Brandy at the Custom-house, not exceeding four hogsheads a ton, provided the imposition did not exceed one year.]
[April 2, omitted.]
Friday, April 3.
[Complaints were made by several of the House, of illegal commitments to Provost Marshals by the Deputy Lieutenants— One who would be Mayor of Bath, and was a Captain in the Militia, imprisoned many that would have given their voices against him, to prevent them.]
Sir Thomas Clissord.] The Act of the fourth and fifth of Philip and Mary is not repealed—Every man betwixt sixteen and sixty may, by the Lord Lieutenant and Deputy Lieutenants, be impressed, and fined 40 l. for refusing to serve—The Lord Lieutenant and Deputy Lieutenants may commit any man, for so doing, to the common jail—Sub judice lis est—The thing is already under examination in the Exchequer.
[A Committee was appointed to inspect the former Acts concerning the Militia, and consider the defects and inconveniencies therein, and bring in a Bill to redress them; and farther, to make provision to prevent complaints of the like nature for the future.
[April 4, omitted.]
Monday, April 6.
[A Petition of James Ash, Esq; was read.]
The Speaker. (fn. 1) ] An injunction out of Chancery to stop waste, being pro bono publico, is no breach of Privilege—Servants menial have Privilege; but workmen, not being servants, are never adjudged privileged persons.
[Mr Ash was ordered to be discharged of his commitment.]
[Complaint was made by Piercy Goring, Esq; a Member of the House, that one of his horses had been distrained, and sold, by Thomas Grevett, one of the Churchwardens of Maidstone in Kent, for a tax for the poor, laid upon his ability by the corporation.]
Mr. Coleman.] Privilege extends to all a man's goods —There is difference betwixt personal and local things —Public and private payments—By the same reason that this gentleman (Piercy Goring) shall be privileged from paying to the Poor and Church, he may be privileged from all public payments whatsoever.
Sir Job Charlton.] The length of sitting of Parliaments takes not away Privilege—A member cannot part with his own Privilege.
Mr Vaughan.] When a Member's attendance is withdrawn from the House, there is breach of Privilege; but should you extend it to all things relative to a Member, it never was Privilege—If a Member's cattle come into another man's ground, will you bind all men to abide trespass from a Member ? But if a person shall question and sue him, so as he must personally attend without his attorney, this is breach of Privilege.
Sir Thomas Lee.] Knows no difference by being sued, or put to the necessity of suing—Presumes the original of Privileges to be from the King's writ—Never knew but that the same Privilege was for goods as for persons.
Mr Waller.] This is an extraordinary case—This is money given by another Parliament (to the poor) which this Parliament has a Member injured in—It is money given to the poor, not to live pleasantly upon, but to keep them from starving—Another person may stay, the poor cannot—Would have it no farther proceeded in.
Sir Thomas Meres.] Would not have it laid aside; for if no man will stand upon his Privilege, through modesty, Privilege in time will be lost.
Mr Scawen.] The Attorney General Noy, did declare in Parliament, That Members were privileged from attachments, though at the suit of the King.
Mr Boscawen.] Privilege of Parliament is, without doubt, against law, and presumes that Members will use it moderately; but would not have the business waved, for then you conclude no Privilege in effect— Would have this business of Privilege argued in a full House.
Sir John Northcote.] Replied to a Member that said, " There was no way to levy the money upon the defaulters," That they may be estreated into the Exchequer, and levied upon them there—It has been frequently done, and upon record in that court.
[It was referred to the Committee of Privileges and Elections to summon the said Thomas Grevett, and examine and report the matter.]
Wednesday, April 8.
[An ingrossed Bill from the Lords, for the better regulating the tryals of the Peers of England, (the jury to consist of 20, at least) was read.]
Mr Prynne.] This is a Bill to suffer one Lord to kill another (reflecting upon the Duke of Buckingham's killing the Earl of Shrewsbury.)
Mr Boscawen.] The Lords have not so much privilege in tryal as the Commons, their jury being of the King's appointing, and they are debarred of challenges—But would have the Commons returned what the Lords have got from them in Privilege, and then we may pass them this Bill.
Mr Vaughan.] The Commons may except against three juries peremptorily; the Lords cannot except against any—In most Laws, we give and take the prerogative by way of exchange.
[It was ordered to be read a second time.]
[A Report was made from the Committee of Grievances of the cafe concerning the Patent granted for setting up Lights at St. Ann's Head, near Milford Haven, which was voted by the Committee to be a common grievance.]
Mr Vaughan.] The Trinity-house has power to set up lights upon the coast, but at their own charge; not that they are immediately to be at the charge, but they consult with the merchants, and do agree with them about the expence and charge of those lights, and the convenience.
[The House agreed to move his Majesty to call in the Patent.]
[Debate on the latter part of the King's Speech resumed, relating to the uniting his Majesty's Protestant subjects.]
Sir Fretchv. Holles.] Moves, after many discourses of decay of trade, That his Majesty may be desired by this House, to call together what number he pleases, and whom, of Dissenters, as he thinks fit, to hear them.
Sir John Northcote.] Moves to have it referred to the consideration of the Convocation now sitting.
Mr Progers.] Would have it referred to the Committee of Religion.
Colonel Birch.] Says he knows no sect, unless Quakers, that will not subscribe the thirty-six Articles; three of them not concerning doctrine but discipline—The Dissenters are either enemies, or we shall make them so— If so, there must be something to keep them quiet— He much doubts whether it be lawful amongst Christians to use any other weapons than what our master used —Much more easy to govern persons of several opinions than one, by setting them up one against another—The Dissenters doubt their condition, and so secure a good part of their money beyond sea, as a more secure place— For Dissenters, the Church will be stronger the fewer it has—This principle of liberty the Pope admits not of, to read the Scriptures—The Turk suffers no learning, and the Papists pray in an unknown Tongue, left the people should send their own prayers to Heaven, as we do—Some would have the Cross, some not; some the Surplice, some not—He ever acknowledged prayers to be a convenient thing in the Church—He is not against them, but would have us consider of Assent and Consent, and so proceed upon the rest, and the fittest for us only to do.
Sir Walter Yonge.] Is for taking off Assent and Consent, and could wish that Birch was as orthodox in the rest of his discourses.
Mr Steward.] He expected some proposals from dissenting persons, but for us to be felo de se of our own Act, is a strange weakness; and so scan our Government, piece by piece—Would make a bridge of gold for them if they would come over, but never upon such terms as he hears discoursed of—It is to be frighted out of our Government with bugbears—He lives in a county (Norfolk) of much trade; he knows not of a family removed, nor trade altered, and in the country a general conformity, which grows daily upon the people—In Norwich are 20,000 persons, and not twenty Dissenters—He believes an interruption of trade, but merely out of design, which he hopes will not take here—The King can call persons of all persuasions without our desires; it was once done when the King came in, but without effect—But when they propose, if any thing be Scandalum datum, or acceptum, he would have it seriously weighed; but not to be felo de se in arraigning our own Act.
Mr Waller.] Stands up to prevent the heat that always attends Debates concerning Religion—If proposals be made to the House, they will hinder the King's Business, now we are ready to part—For the Convocation to consider of it, not proper for them, but absolutely exclusive; for when they altered the book of Common Prayer from what came from us, we allowed it not—Their business is in puris spiritualibus; it is our business to sence about and wall religion, not theirs—So the question is, whether to continue these laws, which were made in terrorem— The King proposed it at Breda, when we were not a people; at the Convocation also, when we were not a people—He wished then we had listened to this business, and is of the same mind still—The Sheriffs oath against Lollards is mended since Sir Edward Coke refused that oath—He repents not his being against severe laws— The Quakers, a people abused—He hoped that would have abolished them; but since the severity of the Law against them, they begin to be respected—The vulgar ever admire such sufferers as do it almost above nature— He hears the proclamation is not executed—The people of England are a generous people, and pity sufferers— The Justice of the Peace fears the offender will leave his wife and children upon the parish—As our Church resembles the primitive Church in doctrine, so it does in believers also; amongst us some know not so much as a Holy Ghost; and our Clergymen, by their laziness, whip people out of the Church—He would have all the opinions address themselves to his Majesty—He presumes they will but differ in opinion, and so nothing will be granted, and they kept different—He would not have the Church of England, like the elder brother of the Ottoman family, strangle all the younger brothers— Empson and Dudley were hanged after the death of Henry VII. not for transgressing the Law, but for pressing too much the penal Laws, which was the great blemish of that Prince.
Mr Vaughan, to Sir Fretchville Holles's Proposal.] It is not proper for us to return this upon the King, who proposed it to us—If it goes to the King, we may be apprehended not to deal candidly; and what we are subjected to in this case, the King is the same; and should the King chuse persons that may persuade him, is it likely that we should acquiesce in that persuasion ? No.
Mr Swynfin.] Would have his Majesty moved to call some persons to consult with him; it will prepare the business the readier for us—The Dissenters increase, and the severity of the Law increasing too, is never the way to unite us.
Sir Robert Howard.] Would have nothing have a tacit fate, but come clearly to you, whether it be fit to do something or no.
Sir Thomas Clifford.] The question of going to the King being carried in the Negative, is, in effect, a Negative to the whole—It may terrify any person from advising the King.
Sir Thomas Meres:] Those little things, so called, are nothing less than Ordination, and many other alterations in the Government besides, and Toleration at the last—His Majesty did acquiesce in our reasons against the Toleration; all the rest of the Conference was spent in bitter railing, and invectives, and reflections upon the Ecclesiastical Government, as in 1640, and so will be again upon Conference—The Dissenting party did not generally rest satisfied with the King's declaration.
Sir Walter Yonge.] The address is fit to be made to his Majesty; he best knowing the temper of persons; they may be so best consulted with—There has been good use of Colloquies, though no good of that at Hamptor-Court, nor when the King came in; but in Queen Elizabeth's time, and Edward the Sixth's time, very successful.
Sir John Goodrick.] These persons would have a superstructure without a foundation—They propose nothing —Tho' at Hampton-Court Conference the authority of truth stopped some mens mouths, yet the rest were never satisfied—The Synod at Dort, and the Conference in Scotland, as fruitless.
Sir Thomas Littleton.] Sees no reason for apprehending terrifying of counsellors (as the Comptroller [Clifford] apprehends) for addresses of this nature have been formerly done—They take no Privilege from the Parliament—The King has so large a Prerogative, that he apprehends the King may do more than is now desired.
Sir Adam Browne.] Suppose they should persuade the King not to put the Laws in execution against Conventicles, what a rock do we put the King upon!
Sir Robert Atkins.] Many are of opinion in the House that something should be done, who will be precluded by the Negative, if no Address to his Majesty; and so a prejudice to them who are friends to the end, but not to the means, by addressing his Majesty.
Mr Hampden.] It will be said abroad, Why no proposals from the Nonconformists? Says one, If we grant something, you will have more and more, will you make the Law already felo de se? So let what will be proposed, here is a Negative in effect—The envy will not come upon his Majesty, but upon the last persons that it rests upon, which is the House—This is a thing which has, in all ages, been done, and this Address is most suitable to the occasion.
Sir Thomas Lee.] Moves that the oaths may be taken off—Many having fallen from the Church since they were imposed, it is probable, if taken away, they may return —They cannot meet without being thought tumultuous, so that we are to grant them, what, in our judgment, we think fit.
Sir Thomas Meres.] Would, before any thing be farther proceeded in, have a Vote pass that we shall have no Toleration.
Sir Thomas Littleton.] Would have a toleration of some things; how could people else bow to the Altar, a thing not enjoined in the Rubrick ? It is a question of a large extent.
Mr Vaughan.] As long as persons conform outwardly to the Law, we have no inquisition into opinion, and a toleration will go a great way in that—But if you generally give it, it is to all Dissenters in point of conscience—He takes Arius and Nestorius to be with Mahometans and Jews, the same reason for all as for one— He would never do it, to introduce Anarchy—Thinks no man so impudent as to desire it—Laws arise from within us, or without us—New Laws, or repeal of Laws, must be either by petition, or leave asked to bring in a Bill—Nothing of the Toleration being within us, or without us, we mispend our time to no purpose—Consider what offence it is to dissuade the people from obedience to the Law—It is, in Law, to disturb the Government, and execution of the Law; and then, how far will our interests lead us to it, or rather, a greater word, our obligation!
Mr Swynfin.] It was never thought that the Law for Conventicles extended to any other persons than such as were out of all communion with us in doctrine, and hold no salvation in our Church—It was never till now construed a Conventicle, the Dissenters being a people in communion with us in doctrine, though different in ceremonies.
Sir Charles Wheeler.] Condescension is as wide as the ocean—Tender conscience is Primitiæ Gratiæ, which, when the Devil has done with, he puts a man upon spiritual pride.
Mr Vaughan.] To the one kind of Dissenters, would have the Bill of Conventicles gone on with; for the inconvenience is as great from many others, as from the Dissenters mentioned.
Mr Coventry.] If a Bill be brought in, he would not have it countenance the taking away the oath about the Covenant; and he that brings it in, at his peril—But yet would have an oath to alter nothing either in Church or State—By way of tacit consent, not by order of the House, to bring in such a Bill.
[The question being propounded, that his Majesty be desired to send for such persons as he should think fit, to make proposals to him, in order to the uniting of his Protestant subjects, it passed in the Negative, 176 to 70.]
[April 9, omitted.]
Friday, April 10.
[Complaint was made of a breach of Privilege committed by Charles Durdant, in causing Sir Fretchville Holles, a Member of the House, to be served with a Process of Subpæna out of the Court of Chancery, whilst he attended the service of the House.]
Mr Vaughan.] A Subpæna, though ad testificandum, is adjudged a breach of Privilege—In Cilatione ad correctionem animæ [reflecting upon Sir Fretchville] no Privilege is allowed; but in other citations, Members have Privilege—Persons that come to be heard in any cause here, should not come litigantes, as in Westminster-hall, but should prepare their business before they come—It is the ancient dignity of this House.
[He was ordered to be sent for in custody of the Serjeant at Arms.]
[April 11 and 13, omitted.]
Tuesday, April 14.
[Debate on the Charge brought in, subscribed by Sir John Morton and Sir John Fitz James, against one Constantine, a Lawyer, for scandalous reflections upon them, and the House in general, viz. That he wrote a letter to the Mayor of Poole, that if they had chosen him, he would have opposed the Taxes (see p. 94.) The Speaker said, It was bepeath any Member of the House to give in an accusation under his hand (fn. 2).]
Mr Waller.] This person, Consantine, is of no reputation, and hopes we shall not lese our reputation too in the proceedings against him, to charge him and condemn him, and not to receive his answer first—Would have it referred to the Committee of Privileges, to hear the person's defence—Would not hereafter wound a good man by a precedent upon an ill one.
The Speaker.] The Act for Judicial Proceedings confirms only what the Courts had proper cognizance of— In the case of Mr Broome, Whorcwood's wife, who got a decree, not cognizable in the Court from whence it was granted.
Sir John Birkenhead.] Privilege naturally flows from the Member sitting, so that a divorce a vinculo or a toro, admits no Privilege to the woman.
[It was referred to the Committee of Privileges.]
[A second narrative was brought in by Sir Thomas Lee, from the Commissioners of Accounts, and the matter relating to Sir William Penn, as to the embezzling of Prize Goods, was debated.]
Sir William Penn (fn. 3).] Denies all the charge of embezzling any goods, as to his particular—This being the first time he has heard the charge, desires a few days time to give such an answer as he will abide by.
Sir Robert Atkins.] The Commissioners of Accounts have power to hear and determine—What encouragement will these gentlemen have, if we give an Appeal from them ? Therefore would know whether it be a charge or a conviction.
Sir William Penn.] Many who possibly have been cashiered by him, or otherwise punished for some misdemeanors, may have given this information; therefore he desires he may have time to give in his answer, which he hopes will be to the satisfaction of the House.
Sir Robert Howard.] The thing is not to be trifled with—A gentleman-like memory may forget things done so long since—He would have the Narrative of the Commissioners of Accounts read.
Mr Coventry.] No man's single Aye or No does condemn or acquit—Hopes that no subject, much less a Member of this House, shall be censured without hear ing—He was never summoned before the Commissioners of Accounts, and probably they deferred it for your Summons---Let him stand or fall according to his demerits.
Mr Vaughan.] Captain Jeffreys, without any order, did break bulk—Some of the flag officers had shares, without the King's warrant—That Penn took more than the proportion allotted him, is his charge—If he were not a Member, you could not hear him, because of the power of the Commissioners of Accounts; and he not being before them, may be heard before you—It seems he is charged particularly with having received, in value, 2500 l. before the Dividend was made.
Sir William Penn.] Says he went on board with Sir William Berkley (fn. 4), by command of Lord Sandwich, but only to keep persons from ill purposes—He might have been commanded to have sunk her, and must have obeyed; but he neither knew of, nor saw bulk broken—He did sell some goods, but, for his life, knows not how much; but again desires the paper of his charge—Says farther, that no goods were sold, till Lord Sandwich gave them the King's warrant.
Sir Robert Howard.] A superior officer cannot command things not relating to the war—As to receiving stolen goods, &c. he confesses some part of the charge, and moves to have him withdraw.
Mr Coventry.] Would not have half his tryal here, and half before the Commissioners of Accounts—This, which the Commissioners have sent you, is but a Narrative, and the Member as yet not heard, nor who swears against him —This may be a combination; but pray let his tryal be one way or the other—For command he must obey; tho' not for a rape, yet for that which would be a murder at law—All discipline of war would be destroyed, if commands of superior officers must be disputed—He hopes that breaking of bulk is not malum in se—He obeyed his command—Let him have his tryal somewhere.
Mr Seymour.] The method of proceedings in this House is for the Member, in his place, to answer to his charge, and then withdraw.
Mr Waller.] The Commissioners have power to make an inquest, or determine, at their choice—The question is now before us, whether we shall make a charge upon this Narrative.
[After Sir William Penn had withdrawn.]
Sir Thomas Clarges.] This breaking of bulk is the most arrogant act that ever was done—He made himself particeps imperii, and took away the means, from the King, of rewarding those who had served him—King James gave Lord Middlesex 20,000 l. the remainder of the money for Qu. Anne's funeral, to strengthen which grant, he gives a Privy-seal; but it was judged to be void in the Exchequer—Would have a Bill brought in to void all Privy-seals of this nature.
Mr Boscawen.] His going aboard could not be barely for the end of assisting Sir William Berkley to execute the warrant; he was a man of remarkable command, and needed it not—He denies not but that they were sold before the warrant; but he, upon private intimation from Lord Sandwich, breaks bulk—The poor soldiers and seamen want pay, and the officers grow fat.
Mr Vaughan.] Suppose a Member should commit felony, would you dismember him before conviction ? If he be clear upon tryal, you lose a Member—If a Member has a just privilege to all things, unless capital, and breach of the peace, will you take it away, by putting him to answer before the Commissioners?—He would have a day given him to put in his answer—He is a part of you, and you cannot deny him a day, if you will hear him at all.
[He was allowed till Thursday to prepare his Answer.]
[April 15, omitted.]
Thursday, April 16.
Sir William Penn's (fn. 5) Answer, in his place, to the charge of embezzling Prize Goods.] Sir William Berkley commanded him on board, where he was not above a quarter of an hour, and did not break bulk (fn. 6) —The Captain that informs was twelve months in the Indies, and he wonders how he could give evidence to the Commissioners of Accounts—He denies not the sale of goods to the valne of 850 l.—Other goods he sold, but they were Sir William Berkley's. He withdrew of his own accord.
[A Letter to the Speaker from the Commissioners of Accounts, to rectify a mistake, Sir William Penn being charged with two bales of silk, and one of raw silk, to the value of 400 l. and 800 l. he sold for Sir William Berkley, and charges himself with the remainder—As soon as the Hold was ransacked, Sir William Penn's men were commanded off.]
Sir Fretchville Holles said,] That Lord Sandwich sent a warrant to Sir William Berkley, to take out sixteen bales; eight for Penn, and eight for Berkley—Four hundred and fifty rubies were sold by the Earl of Sandwich's order— (Lord Brereton told me, That the Commissioners had information that 17,000 ounces of pearl were at the same time taken)—Penn acknowledges the receipt of 1300 l. in value.
Mr Weld informs the House,] That one Gory informed him, that Sir William Penn was the first man that gave advice to Lord Sandwich to break bulk.
Sir Nicholas Carew informs,] That Sir Roger Cuttance deposed the same to the Commissioners of Accounts.
Mr Coventry.] Thinks us not ripe to give any judgment in the business—The order came from Lord Sandwich, and untill he comes home, you can neither acquit nor condemn—Things must be done justô, as well as justum.
Sir Thomas Lee.] The bulk was broken, and distribution made, before any order; so that Lord Sandwich's orders for what was done are nothing in the case—Common same has been a ground for an accusation in Parliament; but in this case here is much more.
Mr Secretary Morrice.] They made so much haste to pilfer these two ships, that they lost all the rest—We sit here three or four months to raise the King 300,000 l. and they in a few days can plunder the King of as much— Camillus, in the Roman story, was banished for converting only two brazen doors to his own use, that were taken in the war—It is no wonder that these sons of Zeruiah were too strong for David, and got pardons and privy-seals for what they had done—Lord Sandwich being absent, must be the common voucher; but shall we try the accessory before the principal be present ?— 'Till Lord Sandwich comes home, would have it only declared an abominable action.
Sir Robert Alkins.] The Law expressly prohibits the breaking of bulk before adjudication—This not broken but by order of the Admiral, not in the heat of fight, but some time after—Sir William Penn has this that falls luckily out for him; the Earl of Sandwich is absent, and Sir William Berkley dead—The articles of the navy must not be broken, unless inevitable necessity compelled, as fire, or danger of retaking—If the Member withdrawn have a pardon, some extraordinary way must be taken; for in the common way of justice he may plead it— You cannot expect so much proof as to convict him; but here is certainly ground sufficient to impeach him.
Mr Boscawen.] The person was one of the Commissioners of the Navy, and therefore more especially [proper] to impeach him, the wants of the soldiers and seamen being so well known to him.
Sir William Coventry.] Hopes you will not impeach any Member, without probable grounds at least to condemn him—It appears not that Sir William Penn converted one halfpenny-worth of goods to his own use, which were not granted him by the privy-seal afterwards—The law of breaking of bulk cannot reach the inferior, in a command from the superior—If you permit not this rule, all discipline is at an end.
Sir Robert Howard.] If Undertakers ever were, this is one, in undertaking for a person thus charged— If you lay down common fame not to be a ground of impeachment, common fame will impeach you—Should an Admiral command a person to be apprehended, and also to pick his pocket, is this command to be obeyed; to bring a woman, and vitiate her by the way ?—A man may be commanded to sink a ship, but not to rob the King—You have inducements to believe all this; and remember yourselves, that lately, in a less matter than this, you came to an impeachment; and if this man be not impeached, I could wish Lord Clarendon never had been —The inducements stand fair for an impeachment to the rest, as well as him that advised it, which is plainly proved—This Member was the man that pursued the Hollander; when they offered themselves as a sacrifice to any body that would be conqueror, this bait of the prizes came in the way, and this worthy Member, with the rest, minded his business, which was to plunder--The privy-seals might be an argument for the King not to enquire into it, but I hope not for you.
Mr Prynne.] Moves, to have all the flag officers impeached that advised the business of breaking bulk.
Mr. Coventry.] Would have the rest of the officers impeached—The same reason for their flight as for Penn's.
[A Committee was appointed to draw up an impeachment against him, and to search into precedents in relation to the suspension of Members from sitting, whilst they are under impeachment.]
Friday, April 17.
[The Examination of Sir John Harman, Capt. Cox, Mr Brunkard, and others, in relation to the miscarriage in slacking sail, and not pursuing the Dutch Fleet in 1665. (fn. 7) ]
Sir John Harman said,] He had no order from the Duke of York for lowering the sails.
Capt. Cox said,] If the Duke's ship had come up to to the fleet, it had not been in any danger; the Dutch fleet was about a mile and a half aftern—Signal they had none, but coming to an anchor, and then they fire a gun—He told Mr Brunkard, he wondered that the Duke's mind should so soon be altered, having, a little before, given express order to make all the sail they could—The Duke was much displeased at the slacking of sail More might have been done than was, if sail had not been slacked—He did not call Sir John Harman, when he said he would take an hour's rest, nor had he order for it —The bringing the ship to is quite stopping her course; loosing sail is but slower.
He farther said, that the Duke's sleet having the weather gage, there was no danger of falling in with the Dutch.
Sir John Harman again.] That it might have hazarded the Duke—The bringing the ship to was the cause of the miscarriage, and not the lowering of the top-sail only.
Hill, one of the Duke's Watermen, said,] That Mr Brunkard gave order from the Duke to slack sail, because he would not engage in the night. Harman refused. Mr Brunkard went down again to the Duke, and said, the Duke gave order for it.
Sir John Harman.] They made not sail again, whilst day—The White squadron was in with the enemy after sail was loosed.
Mr Neale, one of the Duke's Pages, said,] That the Duke sent Mr Brunkard to see how near they were to the Lights, and that they should make sail, and what sail they made.
Sir John Harmen said,] That lowering the top-sail, and bringing to, was of Cox's own head.
Mr Price, the Surgeon, said,] That twenty of our ships were in sight.
Captain Cox.] The shortening sail was our misfortune.
Sir John Harman.] He had no order from Mr Brunkerd for slacking sail (fn. 8).
Mr Price.] Sir John Harmen, in some passion, when Mr Brunkard brought the pretended order, said, "If it must be so, it must be so; then lower the top-sail."
Sir John Herman said,] Cox could not be commanded by him, unless he would himself.
Captain Cox.] Harman said in general, "Lower the top-sail." They might as well have engaged the enemy, as the Prince's squadron.
Mr Brunkard, in his Defence, said,] There is a difference betwixt arguments and orders—Arguments he did use, but not the Duke's name. Says, he believes that what the Waterman speaks he thinks to be true—Knows nothing of the reputation of the Waterman.
Brunkard, replying to Sir John Morton, for alleging the great danger the Duke was in, said,] The danger was so little, that Morton might have been there himself.
[Farther information against Mr Brunkard.]
One Robert Sumpter says, he heard Mr Brunkard say to Sir John Harman, that he came with orders from the Duke to make no more sail; and Sir John Harman was minded to make more sail, but said he could not disobey the Duke's command, though it was against his mind. Sir John Harman was much discontented, and retired into his cabbin to take a pipe of tobacco.
Sir John Harman, upon recollection (having been in the Lobbey, and discoursed with this Sumpter, his servant, the sumes of his disorder being pretty well abated) said,] That Mr Brunkard used the Duke's name, in a commanding way, that he should slack sail.
[Mr Brunkard was allowed till Tuesday the 21st to make his Answer, and Sir John Harman, for prevaricating in his evidence, was ordered into custody.]
[April 18 and 20, omitted.]
Tuesday, April 21.
[Debate on Sir William Penn's Impeachment, reported by Sir Robert Howard. (fn. 9) ]
Mr Vaughan.] Would not have the Earl of Sandwich concluded in the Impeachment, without hearing him first.
Sir Robert Howard.] It may possibly be that Sir William Penn did conspire with Lord Sandwich, and Lord Sandwich not with him.
The Speaker.] The word Conspiracy is a word of art, that has the most rigid Doctrine attending it imaginable.
Sir Robert Howard again.] That Penn did maliciously procure and advise this to Lord Sandwich.
Mr Waller.] "Conspiracy" is without effect, but this was effective.
This Article was amended thus, " Did conspire with other persons."
The second Article was thus amended, "To the value of 115,000 l. with jewels, and other things, of an unknown value."
[On the Question, Whether Sir William Penn should be suspended from sitting in the House.]
Mr Prynne.] A Member that killed his fellow Knight was not expelled the House untill judgment was given— Degradation is never till conviction and judgment given.
Sir Thomas Meres.] For words or actions in the House many have been suspended.
Mr Sollicitor Finch.] Would not have us prejudge him before another judication—Precedents depend upon times and circ umstances—If we once vote him out, and he is innocent, we cannot vote him in again—Impeachment only is a great censure, but to impeach and imprison too, far greater.
Mr Vaughan.] We cannot warrant turning him out of the House by any precedent; but suspension is no part of sentence, and when you have resolved an Impeachment, the Member must withdraw, and be suspended, because he must not be a party in the Debate; every day affording matter probably to the impeachment. Sir Giles Morvpesson (18 Jac.) confessed the fact (about the Monopoly) and so was expelled the House; but that is not the case of Penn.
Mr Waller.] One Stubbs was impeached in Queen Elizabeth's time, who wrote a book against her; and "that he ought to lose his hand," was part of the message from us to the Lords; but the Lords would not accept it, because it was irregular, that we should undertake to judge, that are but accusers—He would have him only suspended the House.
[He was suspended from sitting, and the Committee was ordered to search precedents touching the suspension or expulsion of Members under impeachment.]
[Debate on the miscarriage in slacking sail resumed.]
[Sir John Harman being called in, delivered his farther answer and testimony in writing.]
Mr Waller.] If you give Sir William Penn, a man of a whole brain, leave to give in a Paper, it is much more reasonable for Sir John Harman, a man that has the effects of a late sickness upon him.
Sir John Harman, said at the Bar,] That his sickness had prejudiced both his memory and his hearing, and being not accustomed to speak in such an assembly, was not fully satisfied in his memory and conscience when first examined; but now says, That Mr Brunkard came with a command from the Duke to slack sail.
The Paper was then read by the Clerk's Assistant, Mr Marsh, at the Bar; the substance whereof was, his great sorrow and trouble in offending the House; and that Mr Brunkard came with the aforesaid command; which answer he would abide by.
Mr Waller.] Harman before did seem Insanire cum ratione, for the Duke's safety to slack sail.
Interrogatories to Sir John Harman, to which he answered.] It was common for the Duke to send orders by his servants, especially to Captain Cox—He was not upon the deck when the Duke came up the morning after— No persons, he protests, were with him (in the presence of God) about this business, since he came home.
Sir Robert Brooke, and Sir Robert Carr, said,] That his Royal Highness did tell them, when sent from the House, that Sir John Harman was not to blame, nor faulty in the business, as he verily believes.
Sir Allen Apsley, when Mr Seymour took down Sir William Morrice to the orders, said,] It was rudely done; for which he was called to explain by several, and by some to the Bar.
Sir William Coventry.] Verba valent usu—Would have Sir Allen Apsley done with as the Roman Priests are, who, after the Law has slept some time against them, have a day by proclamation set them to avoid the kingdom; the same course he would have taken in the House, that, Order being much discontinued, it may be from this time revived, and what is past and done, forgotten.
[Debate on Mr Brunkard's business resumed.]
Captain Cox.] It was frequent for his Royal Highness to send messages by his servants; his Pages have brought orders sometimes—He did not hear his Highness enquire why sails were lowered—He should not have lowered for one message; but Mr Brunkard came a second time to Sir John Harman.
[Sir John Harman was discharged, and Mr Brunkard, for his contempt in not attending the House, was expelled; and he was ordered to be impeached for a Misdemeanor, in bringing pretended orders to Sir John Harman from the Duke for lowering the sails. (fn. 10) ]
[April 22, omitted.]
Thursday, April 23.
[On the farther Hearing of the Cause upon the Petition of the Adventurers for Lands in Ireland.]
Mr Sollicitor Finch.] Preparations of Bills for Ireland have often been in England; the King has his negative voice Here, and the Parliament of Ireland theirs There —Any thing transmitted to Ireland under the Great Seal, is a probationary Act, and being not so transmitted, loses its virtue and due qualifications.
Mr Coventry.] Moved, that the Counsel might withdraw, by reason of some words (fn. 11) which fell from Mr Howard, a Counsel at the Bar, reflecting upon him as a Commissioner, and the rest of the Commissioners, some of them besides being Members of the House.
[The Counsel withdrew accordingly; and after some debate, Whether Mr Howard should be sent to the Tower for his Reflections, the Speaker was ordered only to give him a severe reprimand, and the sending him to the Tower was dispensed with, lest it might blast the whole cause.]
Sir William Scroggs, a Council for the Commissioners, reflecting upon Mr Howard's discourses, said,] That venom should come out of his mouth which could not live in Ireland—Whatever is admitted in all tryals is tantamount, as if proved—That will not be called a negative proof if I am accused of robbing at this time in York, and I prove I am speaking in the House of Commons— This is a positive affirmative.
Innocence quoad hoc, viz. it shall not be a prejudice to the Protestant cause only judged as to this matter; they must either declare them innocent in general, or in particular.
Friday, April 24.
[Debate, whether Sir William Penn should be disprivileged, in order to capacitate him for his tryal in the House of Lords.]
Mr Vaughan.] Privilege for a Member is because his attendance is supposed here. In time of Prorogation any Member of yours may be proceeded against in any Court, and his Privilege is then naturally suspended. You have actually suspended Penn, and he being no attendant here, his Privilege is suspended with his person. It depends merely upon point of Reason, and not of Precedent, so the labour of searching them may be spared.
The Impeachment was ordered to be carried up to the House of Lords, and delivered, at a Conference, by Sir Robert Howard.
[April 25 and 27, omitted.]
Tuesday, April 28.
[An ingrossed Bill, for continuance of a former Act, to prevent and suppress seditious Conventicles, was read.]
Mr Secretary Morrice.] The fire of zeal for suppression of Conventicles may be so hot, that it may burn those that cast them in, as well as those that are cast in.
Mr Waller.] School Divines cannot unite them with us—We have united them; what? against both State and Church—Make the fire in the chimney, and not in the middle of the room—Let the zeal be in the Church —We have seen the fruits of this formerly—Let them alone, and they will preach one against another—By this Bill they will incorporate, as being all under one calamity.
Mr Vaughan.] To be against this Bill, is to cure a disease by doing things against it—Though this be but an adjournment, yet there may be reasons why we shall not meet again; therefore this may be a sufficient reason for passing it. Liberty has been given for any man to bring in a Bill for union; no such thing has been done. In my own judgment, I am for indulging the people; the harm is not to be feared from the people: But if persons must be suffered to subvert the Laws by seditious teaching, judge the consequence, and prevent it, by passing the Bill at this time.
Some words fell from Sir Trevor Williams to this effect, That if the Proviso, concerning making the Roman Catholics part of this Bill of Conventicles, be not admitted of, he desires liberty to bring in a Bill to tolerate Popery; which discourse gave great offence, and he narrowly escaped calling to the Bar; but al length was permitted to explain, which he did, expressing much trouble for the offence he had given the House, and that he had no ill meaning in what he had said.
Mr Vaughan.] The Statute of Queen Elizabeth has given liberty to the Lords to sit in Parliament, without test of their Religion; the Commons not—Therefore if a man should say, the Lords would not pass the Bill with the Proviso of the Papists, because a great party amongst them are so, it is no reflection upon the Lords —It would be otherwise to the Commons, they having a test upon them.
[The Bill passed, 144 to 78.]
[Major General Egerton presented a Petition from Sir Robert Howard's Lady, Lady Honoria. He opened it thus, "That she was ready to starve, and fled to the House for relief; her Husband would allow her nothing, though she was worth to him 40,000 l. He pleading his Privilege, she was without remedy." This was the substance of the Petition (fn. 12).]
Sir Robert Howard.] The first quarrel betwixt them was because he would not give the inheritance of his estate to whom she pleased, from his own children—His Wife complained to the Lords of the Council of ill usage, and said she would not cohabit with him—She confessed to Lord St. John, that Sir Robert Howard had ruined her, by giving her her will in whatever she would—He never delivered the King's Letter to her, nor had he need of it when he first addressed himself to her—When he lost his plate, she confessed it to the Lords, and he forgave her— He sent her 50 l. when he heard she wanted money, and she sent it back again—She said to him, "Give me a good settlement, and if I like to stay with you, I will"— He visited her when she was sick—She has tampered with them that would ruin him and his posterity, and so she sent him word by his man; which she confessed—She said that she would ruin his son that he should never marry.
She sent him word by his friend, Sir Charles Wolseley, "Let him do his worst, and I'll do mine."—Serjeant Maynard said to him, "What, will you take away your Lady's allowance?" He answered, "Let her do her part, and he would do his."—He has renounced all Privilege to her, as a Member, in any Court—She has charged him with a letter he has written—She turned him off, not he her—She charges him with having 40,000 l. with her; prays God that he and his posterity be not more the worse for her.
[April 29, omitted.]