Tuesday, June 18.
An Address from the Lords to the King relating to securing
the Forts and Islands (fn. 1) , &c. was sent to the House for their
Mr Garroway.] This Address is as if the King were in
Holland, and Stadtholder, to teach him his duty, and
not King of England. I am against it.
Sir Joseph Tredenham.] If this Address be publishing our
weak Condition, I am against it. 'Tis certain, these Places are in no good condition, and since it is not mended,
it is our duty to represent it to the King, and we cannot
else do right to our Country; especially this coming from
the Lords, makes me for it.
Sir Henry Goodrick.] Guernsey is in ill condition, though
the best harbour in the World. It lies opposite to France.
There are no guns, nor ammunition. The consequence of
the place is great. As for the Isle of Wight, it is a place
of infinite consequence, and so ill-fortified, that the
Governor, Sir Robert Holmes, at his own charge, has
done something. Yarmouth and the Castles are much out
of order. I hope it may for the present be done without
much charge. I would concur with the Lords.
Sir Thomas Lee.] I find we are now upon the Debate
of Address to the King about the Isle of Wight, &c. and
therefore it is not fit to pass at the Table in a moment.
I could have wished the King had sent to you before, or
you to him. I hear of Garrisons making, and we may
draw more Garrisons upon ourselves, and at another time it
might be suspected. For Jersey you may do something,
and I am sorry to hear from Goodrick, "that Guernsey
cannot be kept." The Lords, I believe, have had informations before them, and I would have you do so
too, and consider as they have done.
Sir Christopher Musgrave.] I take this Address to be
of great Weight. This has been examined by a Committee of Lords, and it is not usual for us to take things
upon trust. Inform yourselves, as the Lords have done,
and then, upon committing it, you may take the same
steps, that the Lords have done, and then you are ripe for
Sir Henry Goodrick.] The Fleet is now drawing towards Brest. I see no manner of Summer-Guards, and
we have nothing to send men into these Islands. I suppose they may land men out of France with flat-bottomed
Boats; have we any Frigates to hinder a descent from
France? Unless we send out some Ships presently, we
may run an irreparable hazard. This is the purport of
the Address from the Lords, and I hope it may be effectual.
Mr Harbord.] I am willing to commit this Address.
The Lords have had this before them three or four days,
and I would go the most decent way to the King: I would
examine the thing and the charge of it; it will cost the
King Money; therefore, upon the whole matter, I would
Sir John Thompson,] It seems, the King has not been put
in mind of this by his Counsellors, and therefore we must
do it; but I will not see it with other mens eyes, when I
can see with my own. I question whether this Address
will not bring on the Consideration of Money; and since
this is for our defence, I would have the Committee take
some care of the Navy, and see what present state the
Navy is in.
Sir Thomas Clarges.] This Motion of Garroway's, of computing the charge, is letting the Lords in to raising Money. I do not know but the Commissioners of the Admiralty and Ordnance have done their duty; but this is
too great a presumption that they have not. We have
given two Millions already, besides the Revenue. I would
have the Commissioners of the Admiralty and Ordnance
give you an Account of their Proceedings.
Sir Henry Goodrick.] The Office of Ordnance has not
wanted Application to the Treasury for Money, which
it wants. The Duke of Schomberg has made Application.
Nor has Wharton, the Engineer, been wanting; he has
viewed all these places, and has orders to make them in
as good defence as possible.
Sir Thomas Lee.] You may enquire as much as you
please into these things; but I think Clarges has minded
you well of letting the Lords in to giving Money, though
I know not how he can make out "two Millions" given.
I think it for your service to enquire if it will cost you
Money by an Aid, and you may see if the Revenue can
pay it, and not do it without that, lest you let the Lords
into giving Money.
Mr Howe.] To address the King to do what he has
done already is a reflection. As for the Islands, I hope
they may be speedily done; and for Londonderry, I would
see what forwardness we are in for Ireland, and would
know how many Dutch Ships are to join us; and if,
upon Enquiry, you find the Dutch Ships out, and Ireland
in good condition, there will be no occasion for this
Mr Boscawen.] An Engineer was sent to Jersey, and
Guernsey, and Scilly, to compute the charge. I desire you
to take notice, that, before you make this Address, you
should inform yourselves what care has been taken. I
have this Morning spoken to Duke Schomberg about it.
Mr Ellwell.] Are we only to fight and have no trade?
To be neglected, and no Convoys for Merchants? They
make Fortifications in France, and shall we have no fear
of Invasion? There is no Militia, and Pendennis-Castle is
in ill Condition, and lies open to the French and Irish too.
I would have particular Instructions to the Committee to
enquire into the Navy.
Col. Birch.] This Address comes in a most unusual
way, but when any thing is before you, I would know
the Bottom of it. I would have the Committee examine
what is done, and what is not done. One Part of the
Address relates to Shipping; our safety is, in the first
place, to be looked for. I desire, a Paper may be laid
before us of the number of Ships in the whole Kingdom,
how many fit, and not fit, and where they lie. Some
talk of 30, 40, and 50— ('tis none of my trade) I would
know what you have for reserves, with the several particulars of Guns and Burdens.
Serjeant Maynard.] I would have the Committee enquire into the Captains of the Navy. I hear there are
young men put into Ships, that never were at sea before.
The Question was formerly, "Was he a godly man." And
he was put in. I asked then, "Whether a godly man could
make a Watch, or a pair of Boots?"
Sir Thomas Lee.] If being of a party makes men fit, I
have heard that young men are fittest to fight. Those that
know, and have fought, are thought the fittest to judge.
(fn. 2) is fitter to recommend a Captain than
I am, that live in Buckinghamshire. The charge is computed at 100,000l. a month, the Estimate, and when I
have said that, it will not bear the Charge of this Summer's Expedition (and gives an Account of the Shipping) But
do what you can, there will be leakages. As many Ships
as are appointed, are near ready, to a ship. The King has
ordered twenty to cruise betwixt Scotland and Ireland.
Those who are experienced were thought best to recommend
Officers; and to my Observation, those who were never in
the King's service are not so forward with their Ships as
those who were in the King's service before.
Col. Tipping.] I was lately at Portsmouth, where I saw
one of the greatest Ships given in upon Account fitted, and
weeds grew on her sides, three times as long as the Table;
which, Lord Torrington said, must have been, at least,
three years laid up.
[The Address was ordered to be committed.]
Mr Justice Powell attended, according to Order, and being called in,
The Speaker said] The House has sent for you to desire you to inform them, whether the Judges were sent to to
meet together in Sir Edward Hales's Case?
Mr Justice Powell.] The Judges were sent to to meet my Lord
Chancellor at Serjeant's Inn, in Fleet-Street; all the twelve Judges
were present, and there it was proposed, Whether the King could
dispense, &c. in Sir Edward Hales's Case? I beg the Favour to be
excused from making answer as to Persons. 'Tis improper for me
to accuse any. I humbly beg the Favour that I may be exempted.
Col. Birch.] It seems, he is tender in revealing what
passed, on private considerations; but what was done upon
that Occasion was on a public Account. I conceive it
not the Intention of the House that this Gentleman give
Evidence; but I think it necessary that you know what
Opinion was given, because you were told that eleven
Judges were of that Opinion.
Mr Leveson Gower.] I am of Opinion, that no Imputation can lie upon him to tell you the Opinion they gave;
but I would not ask him what Opinion he was of; but
how many signed their Opinion at that time.
Sir Thomas Littleton.] If you go through with this Question, he may live uneasy in his Judge's place. I doubt
not, Powell gave his Opinion for it, and Streete was the
only man against it. I think he has given a very particular Account to the Lords, and it is fit he should
do it to you likewise.
Mr Garroway.] I wonder what you sent to this Judge
for. Now he comes, he makes you a great Compliment,
whether you will ask him the Question, or not? If the
Crime be such as that all is at stake upon it; ask him plainly,
what Opinion these Judges gave, but not himself. I hear he
has frankly and freely given an Account in the Lords House.
Sir Henry Capel.] Was this Judge in any public Court
on oath, he ought to tell what he knows. For once, let
us not part with our Laws, without some struggle for it.
I stand amazed that Powell is tender in it here. He is
not to be excused for his Modesty, though a good thing.
When that compliment and excuse is over, for the good
of the Nation, he ought to give you a clear Account. I
hope, you will tell him that this House requires it of him to
inform you, and I believe he will obey you.
[He was called in.]
The Speaker.] Mr Justice Powell, the House has considered your Answer, and have commanded me to acquaint
you, that for what concerns your self they will not question you, nor require an Answer; but for what you please
of the other Judges, there can be no tye of Secrecy; you
are under a duty to tell your Knowlege. This is not
properly an Accusation of the Judges, but your testimony
is required to deliver your Knowledge.
Mr Justice Powell.] I am very free to declare any thing relating
to myself, but to others, unless you command me, I desire your
excuse. 'Tis at a great distance, a great while since, but I shall
declare what I remember. I am unwilling to incur the Displeasure of this honourable House—Going on Wednesday or Thursday in
Trinity Term, [2 James II,] to dine at Serjeants Inn, in ChanceryLane, I was desired to attend at the other Serjeants Inn, in Fleetstreet, at four o'clock; where being met, my Lord Chief Justice
Herbert told us what the business was. He desired my Opinion,
with the rest of the Judges, in Sir Edward Hales's Case. He cited
some Cases to make out the King's Dispensing Power. He cited
Coke's 12th Report. After he had done, it was my turn, as Puisne
Judge, to speak. I answered, "The Case was of great Importance,
and, for the present, I was not able to do it, till I had consulted
Books against Michaelmas Term." He said, "He would have it
on Tuesday." I said, "The time was short, but I would wait on
him." Milton, who was then Baron, gave his Opinion, "That he
might dispense."The next was Lutwich, who said, "He restrained it to this Case, and thought the King could dispense [in this Case,
but not (fn. 3) ] in Ecclesiastical Cases." He restrained it to that Case before us not relating to Religion." Jenner was next, who said, "The
King might dispense." Wright was for dispensing. Holloway, I
believe, was for dispensing; I cannot say it positively; I was at a
distance. Streete was against it. Lord Chief Baron Atkins was at
a greater distance; I could not well understand him; he cited several Cases. Lord Chief Justice Bedingfield's Opinion was, "That
the King could dispense." This is all I can say in the matter transacted so long ago. Nothing was put in writing, nor notes taken of
what was then spoken. As for what concerns myself, I attended my
Lord Chief Justice, at his Chamber. I called on Mr Justice Lutwich,
who went with me, and there I heard first of the Judgment given
on Monday morning. 'Twas given on Monday, because there was
a Grand Jury of Persons of Quality that day, and it was thought
the next would not have had such an Audience, and therefore
they hasted giving Judgment that day; so I did not deliver my Opinion. I beg pardon, it was my forgetfulness not to name Wythens
and Heath—(Upon the Speaker's asking of them, &c.) They were with
the majority for the Dispensing Power. I think no persons were
present but the twelve Judges, and I am pretty confident of it.
The Question was delivered by word of mouth, by Lord Chief
Justice Herbert, "Whether the King could dispense with the
Statute of 25 Charles II, and the accepting a Commission by that
Dispensation?" He withdrew.
Sir Samuel Astrey, being interrogated by the Speaker, said,] Lord
Chief Justice Herbert, Wright, and Holloway, were present at pronouncing the Judgment in the Case of Sir Edward Hales and Godwyn. The Opinion, in the Dispensing Power, was pronounced by
Lord Chief Justice Herbert, who said, "It was not only the Opinion
of the Judges in the Court, but he had consulted the rest of the
Judges, and it was the Opinion of ten of them." He said, "There
was another Judge did hesitate when they did meet." I beg pardon
if I mistake in words, but in substance he said) "Ten were for it."
Justice Streete was against it, and another Judge did hesitate, but
that he was informed, by Holloway, that Justice Powell had declared
his Opinion for it." He withdrew.
Sir Robert Henley, being interrogated in like manner, said;] I
was present in Court 2 James II, when the Case of Hales and
Godwyn was argued. There were present in Court Lord Chief Justice
Herbert, Wythens, Holloway, and Wright. The Case was argued
but once, by a young Gentleman, Mr Northey, against the Dispensing, for Godwyn against Hales, upon an Action of Debt on
the Statute, Tam quam, &c. The King's Counsel argued for the
Defendant on the other side. I am certain these were the Judges.
I looked on my Book. The Case was argued but once, not seriatim,
but by Herbert only: He said, "He had consulted the Judges,
and they did all concur; but that Streete, and another Judge
Mr Garroway.] I have something to ask more. I would
know who were the King's Counsel, who argued against
the King? That was a very pleasant thing.
Sir Robert Henley, being asked, &c.] Sir Thomas Powis, the Sollicitor-General, argued for Hales, and Mr Northey for the King.
Sir Samuel Astrey.] I cannot charge my memory with Lord
Chief Justice Herbert's Argument.
Sir Robert Henley.] I remember, the Precedents cited were for "the
necessity of it, and that the King was judge of that necessity."
The Rule-Book will exactly tell the day.
The Oath of the Attorney-General was read.
The Ecclesiastical Commission was read.
The Speaker to Mr Bridgeman.] The House have read
the Ecclesiastical Commission, and they find your name in
it as a Register. They would know whether you attended
Mr Bridgeman.] I was generally there and attended, but, in my
absence, Mr Smith of Doctors Commons attended. In the Business of
Magdalen College, one Tucker, my Clerk, then attended. I was
sent for to Westminster, being in the Secretary's Office, and the Commissioners gave me a draught of a Warrant to ingross: I heard nothing of it before. Lord Sunderland brought it, but I remember not
who carried it to seal. I entered all down in a Book, who were present. Smith and Tucker were my Clerks that entered them in the
Book. We had loose Papers as Minutes, which were entered after
the rising of the Court, and the Book was the Register I kept.
Sir Thomas Clarges.] I hear of a Committee of Lords and
others, called "Regulators for all England;" I would
know whether there was such a Committee, and who sat
Mr Bridgeman, being interrogated, &c.] I attended the Commission, at the Judgment given upon the Bishop of London. I cannot
charge my memory with the Names of the Commissioners in the Books,
but I remember there was a difference of Opinion, at two meetings; they did not agree both times. The Lord Chancellor, Lord
Powis, Lord Castlemaine, Sir Nicholas Butler, and Father Petre,
were of the Committee for Corporations. I cannot say, they sent
Instructions into the Country, for I attended only in the Secretary's Office. That Business was managed by Mr Brent for me.
I was frequently sent for to attend the Committee. I have seen
the Names of Persons in the Country, that consented or refused
taking the Penal Laws and Test, &c. but I never saw any but
loose Papers, all in one Hand-writing, and in the Secretary's Office, and, I believe, some of these Papers are in my Custody still.
I was not employed in the surrender of Charters, only in the Secretary's Office. I was present when the Warrants were signed
for the Commitment of the Bishops to the Tower, and I remember
not who signed; only two or three Lords went out, and did not
sign. I remember the Earl of Berkeley only. I was indisposed in
my health, and remember no more.
A Copy of the Commitment of the Bishops to the Tower was
delivered, in and read.
Mr Smith.] I observe that Bridgeman was sick, when he
had no mind to tell who they are; pray ask him very
strictly, whether there were any more, and who they
Sir Robert Clayton.] I would know, whether Penn and
Lobb were of that Commission?
Mr Garroway] I would have Mr Bridgeman recollect
himself of the Names, from his Notes.
The Speaker.] Mr Bridgeman, the House takes notice
that the Persons you name are either dead or absent; can
you name any others present?
Mr Bridgeman.] There were my Lord Chancellor, Lord President,
Marquess of Powis, Earl of Castlemaine, Mr Petre; these met at
Lord Sunderland's Office. Brent and Trinder, to my best remembrance, managed. Robinson attended. I never saw Penn nor
Lobb there. In the Case of the Bishop of London, Lord Chief
Justice Herbert dissented. In Magdalen-College, and all public
matters, he dissented to every one. I know not particularly as to the
Bishop of London's Plea, but he dissented to all publick matters.
Mr Kendall.] I hope you will consider Lord Chief Justice Herbert, for the sake of a noble Person, his Brother
(Lord Torrington) who lately had your thanks for his
good service (fn. 4) , &c. and show him favour for his sake:
Though he is of a different Opinion from his Brother (fn. 5) , yet
he has a natural Affection for him, and I hope you will
consider him for his sake.
Mr Holt.] I had my education in Winchester-College
with Lord Chief Justice Herbert. I have discoursed this
Point of Dispensation with him. He aimed at nothing of
Preferment; it was his Opinion and Judgment; but he
went not so far as King James would have had him, and,
in the Proceedings of the Ecclesiastical Court, he did dissent from the rest.
Sir William Williams] When he gave Judgment, &c.
he did say this that did allay me: "He would not serve
purposes to destroy Parliaments, and he would not give
his Opinion to dispense the Lords and Commons from
taking the Oaths, &c."
Sir Robert Cotton.] If Herbert did not come up to the
others, and order soldiers to be hanged up for deserting their
Colours in time of Peace—I would except those who had
their Hands in Blood. You have heard how he carried
himself in the Ecclesiastical Commission.
Sir John Thompson.] I think we are out of the way. We
were for naming men to be excepted, and why should one man
be excepted, and not another? If you will excuse them all,
with all my heart. If they partake of the same Crime, it
is fit they should have the same Punishment. Consider
in the lump, whether they shall be excepted on this Head,
Mr Boscawen.] I would not have all Oblivion and Indemnity. I would have some punished for Example.
God forbid all Offenders should be excepted! I took the
Sense of the House to be, that some should be excepted, &c. and that implies you will excuse others, and I am
at liberty to pardon Herbert.
Sir Joseph Tredenham.] By what I have heard said, Herbert is not one of those notorious Offenders you aim at.
He tied up his Opinion to one particular Case, and gave not
a general Opinion.
Mr Papillon.] You have excepted none yet for Life; this
Head is only for Pains and Penalties. I see not how you
can excuse this Person, if you take any other Person in.
All have been upon this foundation. If you excuse this
man totally, he may be Chief Justice again, and then maintain this Opinion. He has been the Head of this Opinion;
so you must do something on him, but as little as you
Mr Hawles.] If I would consult my affections, this is
the Gentleman I would have pardoned. I know him an
honest Gentleman. If you excuse him because a man of
learning, strike off all that Head. Milton is not a man of
learning, and Wythens, I think, very little so. If he judged well in other things, except him now: He went out
upon the City-Charter; he was not for a total Dispensing
Power; he was for a man to be hanged in his own Country, and not at Plymouth, for deserting. If you will admit these excuses, lay all aside. If I would plead for any
of them, it should be for him. But since the Penalty of
Death is passed over, yet I would have a Punishment,
though a mild one, and except him.
Mr Leveson Gower.] If he must be excepted out of the
Act, I would have your Advice, whether you will not
make a conditional Proviso that the King may pardon
him. I hope it will be in the Consideration of the House,
that then he may be left to the King's Mercy, when you
come to the Pains and Penalties.
Sir Robert Howard.] I am willing this Person receive
favour and mercy, but not for the Reasons proposed,
"That his Opinion was his Conscience and Judgment."
But the matter is, now we are against the Dispensing Power,
that we should be the great Dispensers of the Law. They
held an Opinion, "That the King was supreme, and might
dispense;" shall we dispense with this? We may become
censured in this Place. As he was the first mover of this
Dispensation, so his Brother, the Admiral, was the first
who gave his Opinion against it, and frankly gave up all
he had. I think the Judgment must be, he must be excepted, and then that you will petition the King (for his
Brother's sake, who deserves as much as any man) that
it may be upon his merit he is pardoned.
[Resolved, That Sir Edward Herbert be excepted out of the Bill
of Indemnity on the first Head.]
On Mr Justice Wythens.
Sir John Lowther.] I am afraid that Excuses will be
unwelcome to this House. I say, in behalf of this man,
that no sooner was he promoted, but to all sorts of men
he denied Patents of Dispensation from the Oaths. He
did it only as to Officers in the Army: But he has said
before good Witnesses, "That he wished his Tongue had
cleaved to the roof of his Mouth, when he gave Judgment, &c. and if the Parliament should consent to the
Dispensing Power, he should never think them men of
Honour more." He lost his place for his Opinion about
hanging the Soldier, who run from his Colours. He was
never corrupt; he never took a Shilling. I perceive I am
ill heard upon this Subject, (there was a great noise) but I
leave him to your mercy.
Sir Francis Blake.] This man was in the Blood of Sir
Thomas Armstrong; he was one that condemned him.
Mr Harbord] This Gentleman was brought on his Knees
in this House, about the abhorring Petitions to address the
King for the sitting of the Parliament (fn. 6) .
Sir Christopher Musgrave.] I suppose you intend an Indemnity, and your Exceptions not to be many. I know
this Gentleman, and must do him right; his Opinion was
only to that particular matter before him. (Hales's) Herbert
wrote a Book in Defence of the Dispensing Power; but
this man did not: No man can think me a favourer of this
Dispensing Power. I beg your Mercy for him.
Mr Hawles.] This man was deep in almost every thing:
Except as to the Soldier, you will find him involved in
Sir John Lowther.] I have no Obligation to this Gentleman, and therefore can only testify what I have said.
He stayed but one entire Term in his place, after he gave
the Judgment of the Dispensing Power. There is Mercy
before you as well as Judgment, and I hope he will find
Sir Joseph Tredenham.] I was with him in the Western
Circuit, and I must bear him witness, that he was against
the Dispensing Power.
Resolved, That Sir Francis Wythens, and Sir Richard Holloway, be
On Lord Chief Justice Wright.
Sir Thomas Clarges.] If any fact he hath done be Felony,
or Treason, make his Estate forfeitable, and I am for it.
But where there is no Offence in Law that he has committed, I would not have him excepted.
Sir Thomas Littleton.] It would be an ill thing for such
a man to be upon your Books, to stand there with no
mark upon him.
[Resolved, That Sir Robert Wright be excepted.]
On Lord Chief Justice Bedingfield.
Sir Thomas Clarges.] This is an extraordinary Precedent.
I would have the Committee search Precedents. I have
not known, when a man has had no capital crimes against
him, that, when he is dead, you have proceeded against
Col. Tipping.] If you will not except him out of the Indemnity, why have you excepted Herbert, and the rest?
Lord Keeper Coventry was fined 10,000l. when he was
dead, for the Judgment he gave upon Lilburn in the
Sir Christopher Musgrave.] This Case is quite different
from the rest. This Gentleman gave no Judgment in
Court, any more than in private Discourse and Conference,
and I cannot give the same Judgment against him as if he
gave it in Court.
Sir Joseph Tredenham.] Before you pass Judgment upon
this Gentleman, to attaint him, since he is laid in the Dust,
pray consider his innocent Posterity, and punish not them
as if they were really guilty.
[No Vote passed upon him.]
Wednesday, June 19.
Debate on the Lords Amendments to the Bill of Succession; "the
Princess Sophia" being named in the Succession.
Sir John Lowther.] This looks like a kind of Perpetuity.
There may be Revolutions and Changes; this Princess of
Hanover may turn Catholic. Queen Elizabeth would
not determine the Succession, and she was a wise Princess.
Till I am better convinced, I cannot agree to it.
Sir Rowland Gwynn.] In the Instrument, you have limited the Succession of the Crown, and I would do nothing contrary to it.
Mr Sacheverell.] I desire you to consider what you do,
before you agree to this addition. Is it your Intention that
those bred abroad Calvinists or Lutherans, that may come
to the Crown, and receive not the Sacrament according to the
Church of England, shall be taken for Papists? Will you
exclude that King that should marry a Papist, and know
her not to be so? To exclude a Papist barely, so far I
can agree. The other Clause is putting it into the Power
of the Privy-Council to name you a King. He shall be no
King, till he shall take such an Oath as is tendered him by
the Privy-Council, and it lies in the Power of the Council
to tender it. Had it been left to the Parliament, I should
not have been against it, but I would not leave it in the
Power of the Privy-Council to tender the Oath, or not.
Sir Thomas Clarges.] When Queen Elizabeth died, King
James was in Scotland, and he had no invitation to come
hither, but by the Privy Council. Cardinal Rishlieu used to
say, "Two words often spoiled things, faisons mieux." There
has rarely been this occasion. When Queen Elizabeth was
declared Queen, the Privy-Council invited her to accept
of the Crown.
Sir Thomas Lee.] The Privy-Council did it not alone,
and there was no such Power in the Council alone; but it
was done by the Lords, the Lord Mayor, the Noblemen,
Gentlemen, and Citizens.
Mr Boscawen.] Though he be a Papist in his Heart, yet
if he takes the Oaths, he may be King. The Prince of
Wales beyond sea, by this Amendment, may be called in.
Sir Robert Sawyer.] The Privy-Council summon all the
Lords in and about the Town. The Lord Mayor is not
summoned; but when they proclaim the King, the Lord
Mayor is sent for to proclaim him. A short Amendment
may do this; some Power must be lodged somewhere. 'Tis
of dangerous consequence, if on the sudden, and no Parliament sitting; and he that comes in may be a Papist.
Sir Robert Clayton.] I have not looked into the matter
much. I have seen the original Proclamation of King
James. The Lord Mayor of London signed the Proclamation first; his Power was not determined by the King's
death; his Power was in being when all other Commissions
ceased, for he has it by Charter, and not by Commission.
Col. Birch.] Consider well, before you throw out this
Clause; but make it larger, "That the Lord Mayor, and
the Lords about Town, may proclaim, &c." You may
mend it at the Table.
Mr Garroway.] I think it not so easy to mend it. I hope
Gentlemen will not exclude themselves from this right of
being a Party in proclaiming the King.
Mr Hampden.] Whatever the Clause is, be pleased to
remember "That the Lords desire you to sit, and have something to communicate to you of great Importance." All I
know of it is, if you delay this Bill, it may be of little use
Sir Thomas Lee.] I desire Gentlemen to consider, that, if
you adjourn this till to-morrow, no Debates can intervene
between it. I think the Bill has lain too long already,
and shamefully too long upon the Table. Therefore I
(fn. 7) .
Mr Garroway.] Perhaps something in the Letters sent
you from the Lords may occasion new thoughts; therefore read them first (fn. 8) .
The Letters were read. They were in a disguised Style, upon
merchandize, and other things, with affairs relating to Ireland, and
one in a Quaker's Style.
A Letter directed to the Lords Spiritual and Temporal to this
Effect: "That the Prince of Orange taxes the King with force
to subvert the Protestant Religion, when his Forces were not of that
strength. He speaks, in his Declaration, of the French League, but
when got into the Throne, nothing more was said of it—The Treatment he has given to the Protestant Religion in Scotland—Murder,
Bloodshed, and Treason, the Effects of the Reformation. He declares he will secure Liberty of Conscience, and provide for the national Church established by Law, with Indemnity for what is
past." This Letter from King James was intercepted in Lancashire.
In the same Packet was intercepted a Proclamation [of King James
II, dated Dublin-Castle, April 1, 1689] importing "Liberty of
Conscience in general, and not King James's own Religion in particular, though the Prince of Orange impudently asserted the contrary—Asserts the Prince of Wales—Commands all his Subjects to
declare for us—Will pardon all crimes, but such as voted against our
right, and those who came over with the Prince of Orange, for a
Terror to all that have committed such crimes, &c."
Another Letter, "of the French Fleet coming for England, &c."
Another "giving an account of the Siege of Londonderry, and that
Kirk will be warmly received. That the Act of Settlement is
taken off—with Blank Commissions for England—If any body
writes in the Name of C. Powell, he may be trusted."
Mr Garroway.] It has been some wonder to me that the
relief of Ireland has been so slow. I hope this will quicken
those it concerns. Let them look to it whom it concerns,
and if they give not a good Account of it, you may call
them to question.
Mr Howe.] It seems, the Committee is fallen that was
to draw up the Impeachments; 'tis time to call those Persons to question before they do more mischief; if we
lose Ireland, and Scotland be lost, we are never like to
give an account of England. A great many of King James's
former Servants are still in employment; they are too many
to name them. Some in the Lords House have protested
under their Hands, "that we cannot impeach Commoners"—
I think all these Persons ought to be proceeded against.
Sit John Guise.] What you have before you is of the
Mr Hampden.] This was thought, by the King, of
great weight and consideration. Two things in these
Letters are clear; the intended Invasion, and a Conspiracy in England. They are no fictions, nor Plots forged
upon you; but has there been more Money given than
is needful? You have given great Sums, and great Sums,
I find, have been employed. In the Civil Government,
not half has been applied to it, but to the public Charges.
The King, I may say, has robbed himself to supply
the Public. You say yourselves, the Fleet cost you
1,300,000l.—The Civil Government, the Money for
the Dutch, and that borrowed of the City. This is but
head Arithmetick, but I say this in general, that there is
not so much mismanagement, nor miscarriage of the Sums
you have given, (and gives a large Account of the Revenue.)
Mr Leveson Gower.] The honourable Gentleman has
proposed nothing. I should be glad to hear of something
of what is wanting, and where it may be had.
Mr Hampden.] I have told you the danger, and the
King has sent a Letter to have your assistance. Pray tell
the King how the French shall be kept out. One thing
I will propose; put the Militia in good Order, and what
the King wants supply him with.
Mr Smith.] No doubt the King desires your advice to extricate him out of his danger, but I think the Accounts
proffered to be showed us are not so proper at this
time. The Army is upon the Roll 60,000 men, and I
can make it appear, that there are not 40,000 men; so
there is something struck off in the charge. I know no
way to secure you, but to secure the most considerable
Papists in England. I would know why Persons have
stopped the Lieutenancy of Middlesex from seizing Papists,
and taking away their Horses? I should be glad to give
Money—King James takes Estates in Ireland; I know no
better way than to seize their Estates, like him, for your
use, and I doubt not but those will supply you for the
Mr Howe] I hear it said, "there is no Money misplaced." I would hear how it is applied. I shall give
it more heartily though not so discreetly as those who
were of King James's Council, and now in Council and
Employment. I would know the retarding of the Fleet,
and the relief of Ireland. I believe those about the King
do tell him. We see miscarriages; they cannot be at our
doors, nor the King's. There are several in Council,
not our Friends. He that was against abdicating King
James, and "the throne not vacant," is not fit to be trusted
in King William's Council.
Sir Thomas Clarges.] By what we find from these Letters, we ought to provide for our security; but to have a sad
tale told us, and Money at the end of it, is very extraordinary. Let us have the state of the monthly Revenue—
All you have given will come in neat Money at St John
come twelvemonth. I am not given to farming, but, I
believe, the Money in the Poll-Bill may be rated at
600,000l. You are told by Hampden there is need of
four Million; is that for four Months charge? Let us see
our fair monthly charge; it seems so great; and yet the
poor Irishmen are not relieved. We have had War with
France and Holland, and not still "Money, Money,
Money." I have those Accounts, and could have produced them, if I had thought of this. The Revenue this
year is 17, or 1800,000l. I hope, the Customs and
the Excise will answer the Expence in the largest extent.
I do not desire the Crown should be straitened, but all we
have given is not to be spent in three Months, and more
Money for that which is given already, to set things on the
wheels till we meet next. Let the Country breathe a little,
I pray; though all the Money is not paid out of our
Lands; yet the Farmers have paid their Polls. We
are trusted by the People with their Estates, and their
Lands; let leave be asked, according to Order, for a
Motion for Money, and not be brought in by surprize.
Sir John Thompson.] I do not wonder that Gentlemen
of the Treasury move for Money. 'Tis an odd way this,
to ask Money for Holland, when the danger is in Ireland.
Pray let us know what is in the Treasury. In Monmouth's
Business, there was 400,000l. given to suppress it, and the
Money is scarce paid in to this Day—If you will have an
account from Persons in Office, how fit it is for your serviee, pray consider of it.
Sir Christopher Musgrave.] I will not take upon me to
say how Money has been employed; of that I know not;
but we are past Money, sure, now. The whole Scheme
of it has been before you. The Revenue has been paid,
and that is considerable. You compute for the Navy but
from March, and in Winter, when all comes in, then it is
time to think farther of Money. I hope such an Army,
with the Militia we have, and the Fleet, may hinder all
Invasion, if we are so great in force; and we hear nothing
of the Holland Fleet, nor our Alliance with them—There
can be no occasion for Money till winter.
Mr Smith.] We are told, in the Letters, of a Conspiracy, and I wonder all should be strangely ended in Money.
The Papists are all Conspirators, and ill Protestants join with
them. As has been moved, I would have the Papists
seized, and I would address the King for a Proclamation
limiting a time for those with King James: Recall them by
a day limited; if they surrender not themselves, seize their
Estates. Let us know why orders to seize the Horses and
Arms of Papists have had counter-orders. If that was
done, I doubt not but the King may appear at the Head
of the Militia, as well as at the Head of a standing Army.
Sir William Williams.] You have had it proposed, by
Hampden, "Advice and Assistance;" Advice what to
lay before the King—'Tis no time to form a Law for the
Militia; let us make use of it as it is; you ought to execute the Laws as they are, and let them form the Militia
as well as they can; there are men enough in England
to defend themselves, and Money enough. If we
must send abroad for men, we are in a miserable condition. If there be men and Money enough, nothing remains but management. I have heard very little to-day
but what I heard a week ago; there wants nothing but
management. I would have a Committee of Lords and
Commons to sit in the interval of Parliament, to manage affairs.
Mr Garroway.] I never heard of such a Proposal as this
is for Lords and Commons, &c. to take the Government
out of the King's hand. We have heard little to-day but
what we heard a week ago, and it weighs little with me. Let
us know who returned the Horses and Arms taken
from the Papists—And now we talk of the Militia. I
would address the King to know who ordered these Horses
to be delivered back again to the Papists.
Col. Birch.] When I speak for Money, I would lay the
fault where it is. I will not talk of Account of Money
now. 'Tis pity these brave Fellows in Ireland should be
deserted; we are likely to lose those 10,000 brave men, to
our shame all the World over. It is said there is a boom
cross the River to Londonderry
(fn. 9) ; a new fashioned thing!
We are told by the Letters, "That about the time King
James should come to it, it would be delivered up." This
I say, 'tis a sad Case they should be eaten up in the North,
when, at the Narrow Sea, they may go over into Ireland
twice a Day. I wonder, notwithstanding this boom, we
land no where else. Let them waft over, and cut this boom
in pieces; there is no great force with King James. This
may be done, and this is advice; and if with our men
we cannot go ashore near, in eighteen or nineteen miles
going they may go ashore; and if you do not land men,
never think to regain Ireland.
Mr Hampden.] Gentlemen seem to be displeased that
Persons are not removed. As for myself, I would willingly resign my place, but I would have such Persons
named as Gentlemen would have removed. The City, upon
these Letters (it may be) will seize the Papists and all
suspected Persons that may disturb the Government.
[An Address was ordered to his Majesty, desiring that the most
considerable Papists, with their Arms and Horses, may be seized.]
Thursday, June 20.
Debate on the Lords Amendments to the Bill of Succession
Serjeant Wogan.] I think the Lord Mayor and Nobility in Town should be joined with the Lords of the
Council to tender the Declaration and Subscription. I
think it not safe in the hands of the Lords of the Council
of the last demised King only.
Mr Foley.] Here is a Power in the Bill vested in the
Privy-Council, to declare that the next Heir shall inherit, &c. the Crown. I would commit it.
Mr Howe.] I think, this Bill will not give satisfaction
to the Nation; it excludes all Commoners from tendering
this Declaration, if none but the Lord Mayor be admitted. If the last House of Commons were to be summoned, it would content the People.
Sir Thomas Clarges.] To have the last House of Commons sent for, would have great inconvenience in it. The
Custom is, upon demise of the King, that the Nobility
meet, and declare the Successor, as it was done in the
Case of Queen Elizabeth. I think it very well, for such
of the Nobility as are at hand, and the Lord Mayor, to
declare, &c. and then that Commissioners be sent to the
Sir John Guise.] I am not for the Lord Mayor to represent the Commons of England. I think this King came
to the Crown as well and as rightfully as any of his Predecessors, and he did send for all the Lords and Commons
to consult them, and so you will approve what is done
yourselves. If not absolutely necessary, I would not have
Commissioners sent to the King: I think the Crown of
England is worth coming hither for. I would not put the
Crown into the hands of a few.
Mr Howe.] I think it no great matter if the Clause
were cast out, rather than to have Commissioners to bring in
what King they please.
Mr Sacheverell.] This is a matter of great Importance;
here are more things than one, and this Clause will not do.
In the same Clause they are kinged and unkinged again;
and an intermission of Interregnum during the time of
swearing. I think it fit for a Committee.
Mr Hampden, sen.] I am for committing the Clause,
by reason I would make as few differences with the Lords
as I can. This Bill I take as a confirmation of what
we have done, when the Crown was presented to the King
and Queen What would be the Consequence, if the Lords
should not agree with you? (As I hear, the Bill for settling
the Crown escaped narrowly, for a Clause in it was carried
but by two votes) But this is in majorem cautelam, or confirmation of what you have done; it would weaken it all,
and much hazard it; unless absolutely necessary to differ,
I would not, but pray commit the Clause.
Mr Sacheverell.] As to the other Amendment, should you
agree with the Lords in this, the Dispensing Power is confirmed, for the future. If thought necessary, there may
be a Bill to dispense in some Cases, &c. but of those but
a few. If any can be so dispensed, it is not fit a Judge
should chuse what Laws are fit to be executed, and
what not. If you say in a Bill what Laws are fit to be
dispensed, and what not, then it is for the safety of all
Mr Garroway.] If you agree with the Lords for what
they have done already, and exclude the Judges, you cannot punish them. I would not agree.
Mr Ettrick.] You heard, the other day, that in Hales's
Case, the Judges did agree, "That the Law was the
King's Law, and he might dispense with it;" and seeing
you can find no qualifying Clause in this, I see no other
way but by Bill. In the mean time I would disagree with
The Speaker.] You cannot now amend your own Bill,
but you may qualify the Lords Amendments.
Serjeant Wogan.] In the 28th of Henry VIII, the Lord
Chief Justice, &c. were excepted from the Circuit in the
Place of their Birth and Residence; and it is hard, on the
other hand, that the King cannot dispense in any Case.
Perhaps the Sheriffs attend the King, or this House, so
that if the King could not dispense with their residence, they
would be in an ill Case; if the Star-Chamber were up, they
might be fined. Sometimes a Jury may be head-strong, and
find it Murder in the Person whom he killed se defendendo;
you will, by it, restrain the King from all Mercy, and especially in the Case of Mercy, it is against the nature of
Sir William Williams.] I am for agreeing with the Lords.
If that stands for Law, that the King can have no Power
to dispense in any Case that can happen, then perhaps you
will find that the Subjects shall suffer more in this than in
the Dispensing Power. Because Pardons have been abused
in Impeachments, shall the Crown have no Power to pardon? 'Tis as necessary for the People as eating and
drinking. People will necessarily stand in need of Pardons.
I would not clog this Bill for Limitation of the Crown
with this. It will be more natural in a Bill by itself. No
man in the House, nor in the World, but will think this
necessary in a Bill. It will have free agitation in this House,
and before the Lords. I would agree with the Lords.
Sir Thomas Clarges.] 'Tis now six weeks ago since this
Proviso was tendered, and the Gentleman told you it was
necessary in five or six Cases. It seemed, at the Committee, the King had that Power, and, in all Debates, that
that might have been done. For the King's Power of
Pardoning there is no doubt; but I say, by the Law the
King has no Power of Dispensing. He has none by Statute-Law, that we know, nor by Common-Law. In
Non obstante's, they say, why may not the King dispense
as well as the Pope? This is of vast consequence, and, I
believe, the Lords have advised with the Judges about it;
but at a Conference, we shall show, how convenient it is
for the King to dispense in case of a Misnomer for Murder—The Judges are going the Circuits, and the Attorney-General may easily consider of it, to part with this
Clause, so dismal to our Liberties; and, I hope, you will
agree with the Lords.
Mr Attorney Treby.] I shall endeavour to rectify a
mistake; you are told, "the Bill was drawn by the King's
Counsel." If you can show such an Order, I will draw a
Bill extempore. If the Lords have made an Order for the
Judges to inspect the Bill, much more is it incumbent
upon you. As for drawing the Impeachments, I can
never do it till the Committee will meet; and as for the
King's Power of Dispensing, it is said, "He can neither
do it by Common nor Statute-Law;" for Common-Law
there is nothing above Henry III.—'Tis said, though that
be convenient, yet it was before—For Statute-Law it is
plain, that by many [Kings] this Power has been executed, and without reproof of Parliament; I believe it.
Judge Hale gave Judgment of Dispensation in the Case
of Thomas and Sorrel; but if enquiry be made, and you
find it founded originally upon no solid bottom, nothing
but a Parliament can say, that is not a Law convenient
to be used. A stone ill placed in a wall at first may be
mended, but you would not undermine the Inheritance
of Persons. In Hanson's Case, a man was supposed to
be murdered, and was not; therefore there was a reason
why the King should pardon him; and it must be taken
for Law, because a continuance of practice. You say,
"The late King did use that Power of late, and dispensed
in a Case not dispensible;" not to John and Thomas, but all
the people at once. 'Tis said, "That, if we do not something
in this, we acquit all the Judges of what they have
done, and condemn ourselves"—There is not one word
of retrospect in the Bill; but it says, "From the first of
June no Non obstante, but as formerly;" all the proceedings of the Judges are in the same state as before. When
reading will satisfy, I need not speak; pray read the
Mr Sacheverell.] I hope Treby will justify me, that I
attended the Committee. As to this other, I would know
how came the Clause of Non obstante, if the King could
dispense without it? For the time past, I am glad to
put up with a great many Injuries done us, only to prevent for the future.
[The Clause was ordered to be committed.]
[June 21, Omitted.]