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selves,' it is the only way in the world to make them a dangerous party, and against you, to throw this out, In king James's time, they, through necessity, did comply; and God knows, in 7 years, what change there may be ; and men, to ease their consciences, what may they do? I would not give them occasion to throw themselves out of the protestant interest. We hear of a general Indulgence in Ireland, and here we are cutting up ourselves. Let after parliaments alter it, if they see cause; let us pass it.
Sir Tho. Littleton. There was great reason why the committee refused the proviso. The committee, though they were for Indulgence, were for no Toleration. The committee thought not fit to make it temporary, because then they had a time certain, and might do mischief. They may possibly send the king
no hardship; but that he shall not believe it,' is. The Articles are turned to the Scripture; this is the way to ask which manuscript they are out of; and as for the Holy Ghost, they will say, it is not in Scripture, and so they will raise endless disputes. I am glad we are so large in Indulgence. I am for supporting the doctrine of the Church of England, and would have the proviso so penned, as is taught by the doctrine of the Church of England.
Sir Rob. Sawyer. This Bill declares the profession of faith in other words; you shall not preach nor write against the Church of England; this is only a saving to the words; they will say, if we can prove that these Articles are not according to the Holy Scriptures, we do not write against them.' They may insinuate this. They are at liberty to write or preach, if they can prove they are not according to Scripture: else you will set up a new controversy.
Sir Tho. Clarges. This Bill establishes a sort of bill contrary to the Church of England. I would therefore have it temporary and probational. I cannot foresee what it may reach to, therefore I would have it for 7 years only, and to the end of the session of next parlia
Sir Rob. Howard. I hope this will bring more to the Church of England, than ever were found in seven years before. This tenderness will bring more than all the persecution. This is no new thing; it has been upon the anvil these seven years without success. It was brought forward in king James's time, but they could not and durst not perform it; their Church would never suffer it: and now, in the midst of all this expectation, to dash it with a temporary clause! You had as good grant them nothing at all; thus to deceive them into an Indulgence, and cramp it with time. Let us throw no cold water upon this warm thing; and pray do not disturb it with limitation.
Sir Tho. Clarges. For gentlemen to say, 'That the necessity of affairs induces this,' it is not worthy of a parliament to say so. do not restrain it to 7 years, to diminish it; but if we do it, is it not fit for us to limit it? If I thought it not for the church, and for their benefit too-I desire the Clause may be read. To make the thing temporary, will look like design. I would have it as large as the church of England, that we may be one in affection, and one in interest. All that is said against it is, 'That an ill use may be made of this.' I hope the church of England will increase daily by it. If they make an ill use of it, there will be always enough in this house to take it away. The late king James offered them Indulgence, and, like unwise men, they ran into it to be deluded: and I look upon Penn's quakers, who were so forward then, to be papists.
Sir Henry Capel. Rather than the bill should not be effectual, it were better they had none at all. As for what is said of making it temporary, to see how they will behave them
Mr. Godolphin. I have a great deference for the other side. I heg pardon, if I am not convinced by their arguments. The liberty you give them may be abused, and you may have experience, in 7 years, of their deportment.
Mr. Hampden, sen. I am against the Proviso, and therefore against reading it. The same reason may be, to make every bill a probationer as for this: I hope the dissenters will deserve it, and you do it upon a presumption that they will be true to the government. This will go with you, though perhaps not with the common people in Westminster-Hall. At this time, they are lending a considerable sum for uses you will approve of, I am sure. I cannot answer the argument, why you should limit this act, and use these people gently for a while to persecute them afterwards. You have not repealed the laws they are punished by, but only that they shall not be prosecuted by them. The repeal of the 35th of Eliz. passed the lords house, but what became of it, I am not willing to remember: That act is the only law left that the papists might ruin the church of England by. They say, their religion is the church of England; by which, if they meet in private houses, they must abjure, or be hanged. These laws with fresh vigour may be executed against them. Let no interruption he to the joy of these people, and lay aside the Proviso.
The Proviso was rejected, and the Bill passed. May 21. The Thanks of the house were given to admiral Herbert, (afterwards earl of Torrington) for defeating the French fleet in Bantry Bay; though, according to Burnet, it appears, at most, to have been a drawn battle. War was this day declared against France.
Debate on the Habeas Corpus Suspension Bill.] May 22. Mr. Hampden, sen. What I shall move you, is for the king and the nation, That the Act for Habeas Corpus, &c. may be suspended for a time.' The lords shortened the time of the last bill, not you. Dangers usually come not in a day; growing dangers, and the consequences, are in the
dark, when it is too late to prevent. What is the meaning of all the intelligence that comes out of the country, of ill-affections to the government? And have we not a body here that are mutinying against the government? In Lancashire, since the Irish were disbanded, they meet in parties, and you have no way to obviate this danger but by this Bill. You are willing to go home; what will the king do? Dangerous persons will be delivered out of prison of course, if this Bill prevent it not; and they may act to the subversion of the government. If you will leave Impeachments behind you, when you are dismissed, that will be a tedious way, and they may else come out. The same common danger with you induces me to move this. And if people conspire, the king cannot keep them in prison; since they must come out by Habeas Corpus, if you prevent it not by this Bill. We are in war, and if we make only use of that remedy as if we were in full peace, you may be destroyed without remedy. This Bill is for present occasion, and for a short time only I move it.
Sir Francis Russel. If this were taken away, possibly I might be for it; for a Habeas Corpus is the law already, without the new Act; and when we shall see better Judges, that law will have its course. This seems as if there was a defect in the government; and I hope you will rather take away the late Act quite, than prolong the last Act that suspends it.
Sir Robert Napier. This mistress of ours, the Habeas Corpus Act, if we part with it twice, it will become quite a common whore. Let us not remove this land-mark of the nation, for a curse attends it.
Mr. Boscawen. The gentleman is rather for taking away the Habeas Corpus, than this Bill: that, I think, is a great extreme. Let the danger be ever so great, I would not dispense with that law but by parliament. If dispensed with by the executive power, it is fatal always; by the legislative power, there is no danger. I am informed, from the North, of persons having been taken upon the borders, going to side with those risen in Scotland; therefore it is best to prevent the dangers: and is it not worthy the consideration of parliament, that the soldiers be prevented going into that country? There is no law against that; but you have ground to suspect, when they talk lavishly, that a little drill of a dam may make a breach in the bank. Will those gentlemen, that are not for the Bill, take upon them the danger that may ensue upon not passing it?
Sir John Lowther. I can add nothing to what has been said: I shall only say, that, as for those in the North, I shall acquaint you with matter of fact. Persons were taken, who confessed they were going to king James; though some are in custody, yet some bave entered col. Langston's quarters. They refuse to take the Oaths to the king and queen; and, if there be no remedy, these persons will pursue their intentions.
Sir Joseph Tredenham. I hope the laws and the government are not so loose, as to do any thing extraordinary upon this occasion, which is now law, and the ordinary course. I appeal to you, if going armed be not punishable by law; if in arms, in terror of the people? In these countries, if these things happen, the magistrates may remedy them by law. If every thing in parliament is well done, nothing I fear so much as establishing any thing against English liberty by act of parliament. If such a Bill be necessary, no man is more for it than myself; but if not, I hope the house will be against it. I would, therefore, farther consider the nature of this law; and, so far as consists with your safety, it may be abolished. The unsettledness of the nation, at present, is the only argument for it; but, I hope, now you will be settled, so as to have no need of it. "In Rd. 2's time, the law of Provisors was made, which that king suspended; and afterwards an act with a salvo to the king's prerogative. If once you declare, that so tender a thing as this, for support of the government, may be suspended, it may make Westminster-Hall think so too, and follow your precedents. We have enemies abroad, and at home; and it is but a short time that this Bill is to continue; and it may be supposed that short time may not mend our condition. If people apprehend the government not firm, it will make them have a less heart to support it. If we will not trust it in little matters, surely we shall not in greater. Content yourselves with the laws you have already, and make no violation of them. Farther consider it.
Col. Birch. It is beyond my time to court 'this mistress' spoken of; but I will stick to this as much as any body. You are moved for a farther day to consider this, and this is your day. It is said, now the Government is settled, no need of this; but we all know that it is not settled yet; and before it will be better, it will be worse. We are in a state of war, and worse than war, There is a great man on one side the water, and king James on the other; and a Popish party, and another, in the midst of us; and this is a state of war, sure. If this be our condition, and disaffected persons in every corner, I would know of any man how this Habeas Corpus Act is now practicable. These men that disturb the government have been picked up, but not tried, in two or three months. And you must deal sharply with them now. I think you cannot make it for a shorter time than November, at least; for we must go home, and then it will be worse. The lord-lieutenants and justices of the peace being in disorder, I hope this will keep us in safety at present.
Sir Robert Sawyer. Give me leave to put you in mind of a thing put into my hands. Your Bill does not take care for proof of a charge against a man. Upon a bare suspicion, information was given by a woman, That she was, with another gossip, in a house, where she heard declared, that there was a conspiracy
against the present king, and that one sir Robert Sawyer did confederate with others to this purpose. But I must declare, I never had that in my heart; and I believe that king James's return would be the destruction of England. At this rate, myself, or any man, may be clapped up in prison.
Mr. Hampden, sen. If such an aspersion be upon a man, he has reason to resent it; but he inay remember, it is not the first time that men have, upon suspicion, been clapped up, and that gossips have given evidence, and judgment has been upon it. I cannot blame him for resenting it; but he is safe, being a parliamentman; and, I believe, nobody takes him to be in a conspiracy. Was the Act of Habeas Corpus made to shackle a good prince? You have heard of 40,000 to bail; and you would have the king do this to save the government? All this Sawyer knows.
Col. Mildmay. This Act will shackle the king you have confidence in. You must know that Westminster-hall Judges did that which Sawyer complains of; yet he is here. All that dare show themselves, do it now; practising, and yet they are so cunning, they do not come within danger of the law. It will not be for your service, to deny this Bill now. We desire to be at home, and it is fit we see these laws put in execution that we have made; and we may, in the interim, be in danger. Therefore let us first pass this Bill, not for a long time, but a necessary time; for six months.
Mr. Ettrick. I am against this Bill, because it grows still worse and worse than the first; which was, for six privy counsellors, or two secretaries of state, to commit. How far this may be, I know not. The security of all governments is the good-will of the people; and I fear this may take their good-will from you. Magna Charta was confirmed thirty-two times. I know not whether going by this, by degrees, may not tend to repeal Magna Charta. Upon what suspicions they will commit, whose they are, and on whom, we know not. It is said, 'Sawyer sits here: You are going into the country, and I know not how soon some of us may be sent for again, and committed, perhaps till November, to a close prison all this summer. I look upon the Habeas Corpus Act as the greatest defence against oppression; and Westminster-hall may say, it is inconsistent, against the safety of the nation,' and a good ground for the Judges in Westminster-hall to suspend it.
Sir Rob. Cotton, of Cambridgeshire. As an Englishman, I am jealous of our liberties, and will not give my vote to betray them. The difference betwixt a subject and a slave is, that one has the benefit of law, the other is used at pleasure. Never since the Barons Wars did any thing come from the parliament to infringe that liberty. You are told, This Bill is necessary as long as the government is unsettled.' Lewis 11 of France desired only liberty to raise Money till the next parliament did sit; and he never called a parliament, and they have
raised Money without parliaments ever since. I am jealous of a thing of so high importance to preserve our liberties, not to put the subjects in such a condition as to suspend their liberty for an hour.
Mr. Roberts. This is not only to suspend the Habeas Corpus Act, but all the liberties of the nation. The person is committed without oath, and may live in prison. This is putting arbitrary power in the government. I am against it.
Mr. Hawles. I think it fit that such a Bill be brought in, in time of danger from abroad, and within the realm; and it is only to confine them from doing mischief. I am glad to see that the king and government will not do it without an act. In 1683, several were clapped up in July, and not bailed till Nov. the 8th, and had not been then, but to bring the Popish Lords out of the Tower, lord Powis, and the rest; and if a distinction could have been found out in their cases, they had not been then released. I think this power fit to be lodged for the safety of the government, and I am for enlarging the time.
Sir Christ. Musgrave. I am against such a Bill; it suspends not only the Habeas Corpus, but the law that was before it; (the fault of that law was, there was no punishment for the Judges) I am sorry the government is such, that men may be clapped up without oath, and detained in prison. We hear of several clapped up, and no prosecution against them, at the pleasure of those that confine them. We are told of some going to king James; if that be so, you have a law to punish them; and if any break in upon your army, it is rebellion, and you may punish them. I am not for confining men to prison, the greatest punishment next to death. I speak by experience: I have lain in prison. I hope you will not give leave to bring in such a bill.
Sir Henry Capel. I am glad to see the sense of the house so concerned for that law of Habeas Corpus; but it is the wisdom of all governments not to be strait-laced upon any emergency. This Bill was obtained with great difficulty, to stop the hands of persons from violence: but, in such a conjuncture as we are in, to be tied up not to do for the common safety, that people cannot be preserved by the government, that will lose the people's hearts. To do this by parliament, there is no danger; but that will be when Charters are voided, and no free Elections; and there is no danger in this parliament, freely elected. But shall those in Westminster-hall be compared to the legis lative authority? But if they transgress, I hope they will be made an example. The time named in the bill, &c. is Michaelmas, or November. The Commissions of Peace are not gone out, and many will not act; the deputylieutenants have not had their commissions. In
A younger son of the earl of Radnor, Vice-President of the Royal Society, &c. He died in 1717.
the Justices there is a failure, and it may be amongst the deputy-lieutenants; those are the life of the government; and if they will not act, nor the Army is secure, what shall the government do to keep us in safety? I think, upon these circumstances, this Bill may be for our safety.
we are in, I think the Bill necessary, and I am sorry the condition of affairs makes it necessary. Other than this I know no safety; therefore I move for this.
Mr. Harbord. We are told, If 3000 men had been sent into Ireland, it might have been saved.' I would ask that gentleman, what 3000 men he would have had sent over? To send our own was not safe, and not fit to part with the Dutch. Those sent over have betrayed Londonderry, and those sent since have mutinied. I know not how Clarges can answer, that the king, persuaded by col. Lundy, betrayed Londonderry. There are ways for the Ire-king to punish men. It is no easy matter to impeach in parliament, and there he must lie till you meet again—and the nation lost.
Mr. Ettrick. Had Capel known Westminster-hall as long as I have, nothing has been more ordinary there than to judge your laws
Mr. Foley. I know, Westminster-hall Judges have judged necessity in case of Ship-Money, and no inference that they may do it again; but that certainly we are in danger from land and France, and some amongst us. If I am informed right, there were never so many Louis-d'ors in payment: a third part of great payments is made in Louis-d'ors.
Sir Tho. Clarges. This Bill is the most unreasonable and destructive that ever was made in parliament. We have had a struggle for it these fourteen years; and now, upon suggested necessities, to dispense with this law! I am sorry we should take example of this thing from corrupt times. I hear it said, We should not shackle our Prince.' In Oliver's time, in 1656, one Coney was committed by his order, and Judge Rolle delivered him. But Cromwell said, 'Princes must not be shackled.' Felony and treason are not bailable by that Act. But what other offence can it be unless that? It grieves me to hear this; would you have a man committed to prison because he wears his hat on one side? It is said, 'Persons will not acknowledge the king and take away horses; is not this treason? If Justices of Peace are not yet named, the Secretaries of State may send all over England. And where shall we lay the consequence of the loss of Ireland, but upon the ministers of state? You are told, That, in Monmouth's Rebellion, men were denied copies of their Mittimus. They had a good action, and might have had remedy. I am afraid of this. I tremble at the question, and desire no such motion.
Sir Rob. Howard. I hear divers arguments against this Bill; but I think it gives great veneration to the Habeas Corpus Act, that it cannot be suspended but by act of parliament. By the judges it cannot be suspended, to make this Bill an example, unless they will make an act of parliament in their bosoms. I wonder, in the last Act, that the lords should reduce the time so short as to make the Act useless; but, I apprehend it was the modesty of the style the lords used, and you see little use was made of it in that time; but I do not wonder that you provide against new accidents from the unsettlement of the whole nation. I observe, when the Prince of Orange was upon his design, if this dispensation had been made use of, many might have been clapped up (and the happy change prevented) and myself one. This is a strange distrust, in that which all mankind called then their safety. In the condition
Sir Tho. Clarges. I called upon two hands, one for the Miscarriage of Ireland, and they have made the consequence upon the minis ters, not I. Deputy-lieutenants may secure persons, and that is another remedy.
Mr. Comptroller Wharton. If Clarges says, "The ministers were the cause of the Miscarriage of Ireland,' it may be he was one; but many were of opinion, that king James had not abdicated the crown, and that gentleman was one of those ministers.
Sir Tho. Clarges. I desire I may be vindicated. I am arraigned for debates; we ought to be free here; to say, that was the occasion of the Miscarriage of Ireland !' I desire to have
"King James sent a small body before Londonderry, which was often changed; and by these he continued the siege above two months, in which the poor inhabitants formed themselves into great order, and came to generous resolutions of enduring the last extremities. They made some sallies, in which the Irish always ran away, and left their officers, so that many of their best officers were killed. Those within suffered little, but by hunger, which destroyed near of their number. One convoy, with two regitwo thirds ments and provisions, was sent to their relief: but they looked on the service as desperate, being deceived by Lundy, who was the governor of the place, and had undertaken to betray it to king James; but he, finding them jealous of him, came to the convoy, and persuaded them that nothing could be done; so they came back, and Lundy with them. Yet the poor inhabitants, though thus forsaken, resolved still to hold out, and sent over such an account of the state they were in, that a second and greater convoy was sent, with about 5000 men commanded by Kirk, who, after he came in sight, made not that haste to relieve them that was necessary, considering the misery they were in. They had a river that came up to their town; but the Irish had laid a boom of chains cross it, and had planted batteries for defending it. Yet a ship sailing up with wind and tide broke through and so the town was relieved, and the siege raised with great confusion." Burnet.
Sir Wm. Williams. The question is plain, 'Whether this law shall be suspended for any farther time; which is so much for the safety and preservation of the kingdom. Liberty of persons is the question. Whoever is for the safety of the kingdom must be for dispensing. We were under danger when we made that Act first; now we are in a more imminent danger, in worse condition, and Scotland in no good condition; and I apprehend it more dangerous, when the town is naked, and the king naked, and the parliament gone. I think this Bill may be qualified with, 'not to be committed without Oath.'
Leave was given to bring in a "Bill to impower his majesty to apprehend and detain such persons as he shall find just cause to suspect are conspiring against the Government."
May 24. The said Bill was read the second time.
Sir Tho. Clarges. I cannot but be troubled at this Bill, and the more for the reasons given for it. I am not convinced of the necessity of the bill, and more concerned for the king, who has delivered us from arbitrary practices, to have this king informed, that the laws of the nation are such, that the kingdom cannot be kept in peace with them. It is so much against the privilege of the subject that any man may be imprisoned, upon a bare suggestion, and not have benefit of Habeas Corpus. Upon commitment for treason, or felony, a man cannot be bailed. If he refuse the Oaths, he may be imprisoned, and the next refusal is præmunire. I would not have any man committed, by this Bill, but by oath, and that the accuser do give security to prosecute.
Sir Tho. Littleton. I think there is a necessity of such a Bill; the peace of the government depends upon it, now there are a sort of people disturbing the government. I observe how tender the government is now; in the last reign, every thing was conspiring the death of the king,' and that was the tenour of all their warrants; and since the king has done so modestly in the use of the two last Bills, not as formerly.
Mr. Garroway. I would to God, the king had not been put to it to get this Bill. But abroad in the world there are strange discontents, and such language as is not fit to repeat. The French king and king James are against us, we are now near a recess, and when we are gone, I know not what combustion may be; and for us to do nothing, and not trust the king!-I know not what combustion we may fall into; we are not now barely in fears and jealousies. I hope the same hand that proVOL. V.
tected you will do it still, and I move you to commit the Bill.
Mr. Boscawen. I am against Sacheverell's Proviso; this Bill is for the security of the nation. It has been opened, but you are at liberty to receive it or not. I have lately received a letter: I will open it, and then you may judge whether you will read it, or not. It is not from a fiction of my own, but it is really truth. A member delivered me a letter from lord Shrewsbury's correspondence, that persons about the court corresponded with one in the Post-Office, and he with king James.' You must know that what is done in council the clerks know. If you receive this Proviso, cast out the Bill. That there are such as wish not well to the government is certain. By the Proviso, you must enter every Information, or nothing at all. A gentleman comes, and upon his reputation gives in information-Taken down to order by Mr. William Forster abruptly.
Mr. Garroway. You have spent a great deal of time in this debate of matter of order. I am sorry the question should be put, 'Whether the Proviso should be brought to the table, or no?' I never saw it denied. If he open his Proviso false, you will have satisfaction of the gentleman. Let him bring it to the table, and judge of it.
The Bill was ordered to be committed. May 25. The above Bill was read a third time.
Mr. Godolphin. I have some reasons to speak against this Bill. It is the inherent right of every member to speak his mind upon bills in parliament, though he is sometimes attacked for it. I think this bill to be against the king's service; nothing is more for the disservice of the king, than to create prejudice against him, and nothing more than to think he will govern by arbitrary power in the members of the privy council, as in France. The king makes an Edict, Car tel est notre plaisir.' This may subject your Bill to some questions hereafter. Some time ago we did arraign the government of arbitrary power, exercised against law. We go about now to establish arbitrary government by law.
Sir Christ. Musgrave. The occasion of bringing in this bill was because it was thought necessary for the preservation of the government. At present, there are divers disorders, but when I consider we have got a good Fleet, and have had experience of our officers, it may secure us from foreigners, though we do not hear much of assistance from others; (but that by the by). What then must we be afraid of? It must be home Papists, not yet clapped up. It must be from some people within us. If more considerable than they are, we have an Army of 40,000 men to protect us, which may prove as fatal to those that shall attempt against the government as formerly. If we have such an army, there can be no need of such a Bill, to commit men to prison without oath, made upon suspicion only, which may be