2. 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 doubted.""

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. "Sir Thomas Powis, the Solicitor-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

The Oath of the Attorney-General, and the Ecclesiastical Cominission, were then read. The Speaker, to Mr. Bridgman. House have read the Ecclesiastical Commission, and they find your name in it as a Register. They would know whether you attended as Register?

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 Tho. 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 in it?

Mr. Bridgeman. "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 Nich. 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 cominitment 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

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, marquis 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 MagdalenCollege, 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 public 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, and show him favour for his sake: though he is of a different opinion from his brother, 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

"So little regard had the Chief Justice's nearest friends to his opinion, that his brother, admiral Herbert, being pressed by the king to promise that he would vote the repeal of the Test, answered the king very plainly, That he could not do it either in honour or conscience.' And though he was poor, and had much to lose, having places to the value of 4000l. a year, he chose to lose them all rather than comply." Burnet.

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 Wm. 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 or not?

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 Tredenhum. 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 will.

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 VOL. V.

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 be had. I think the Judg ment 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 IIerbert be excepted out of the Bill of Indemnity upon this Head."

Debate 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.' 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.

He

Sir Francis Blake. This man was in the blood of sir Tho. 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.

Sir Christ. 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 inercy for him.

Mr. Hawles. This man was deep in almost every thing: except as to the Soldier, you will find him involved in all things.

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 be

fore you as well as judgment, and I hope he will find mercy.

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 Rd. Holloway, be excepted out of the Bill of Indemnity."

Debate on Lord Chief Justice Wright.] Sir Tho. 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 Tho. 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."

Debate on Lord Chief Justice Bedingfield.] Sir Tho. 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 him.

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 StarChamber.

Sir Christ. 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 was passed upon him.

Debate on the Lords Amendments to the Bill of Rights and Succession.] June 19. On the 9th of May, the commons had sent up a Bill to the Lords, for declaring the Rights and Liberties of the Subject, and settling the Succession of the crown; which their lordships having considered, they found the latter part of it (as they thought) defective, no mention being made in it of her electoral highness the princess Sophia, dutchess of Hanover; and thought fit, amongst other Amendments, to add a Proviso in her highness's favour. The Bill, thus amended, was this day returned to the commons.

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 Tho. Clarges. When queen Elizabeth died, king James was in Scotland, and he had no invitation to come hither, but by the privy council. Cardinal Richlieu used to say, Two words often spoiled things, faisons mieux. There has rarely been this occasion. When queen Elizabeth was declared queen, the privycouncil invited her to accept of the crown.

Sir Tho. 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.

The

Sir Tho. Lee. I desire gentlemen to consider, that, if you adjourn this till-tomorrow, no debates can intervene between it. I think the Bill has lain too long already, and shamefully too long upon the table. *

Treasonable Papers communicated to the House by order of the King.] The same day the house of lords communicated certain treasonable Papers to the house, by order of his majesty before the reading of which, Mr. Hampden acquainted the house, "That the said Papers were found upon two persons, who were going to Ireland, in a ship which had stole out of the port of Liverpool, but was stopt about five miles at sea: that they were dispatched up to town, by the mayor, and that the Letter to Piggott, and two more, were written by king James, though he had, in one of them, somewhat disguised his hand.”

Debate thereon.] 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 ques

tion.

Mr. Leveson Gower. The hon. 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 present.

Sir John Guise. What you have before you is of the greatest importance.

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.) +

The Clause occasioned the loss of the Bill this session, both houses adhering, the one to retain, the other to reject it. Add to this, that it became less necessary on account of the birth of the duke of Gloucester, on the 27th of July.

† “Mr. Hampden had neglected the usual

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 k. Willian's Council.

arts of ministers, to bespeak the favour of the majority: so that instead of carrying his point, he was not so much as seconded; no not even by his own son. On the contrary, having, in the course of his speech, insisted on the necessity of a farther Aid, to save the nation from falling into the hands of the Irish and French, another member said, Add the Dutch.' Mr. Garroway, though a known Williamite, gave it as his opinion, That they had granted money enough for one year; that if they had thought there had been occasion for more, they would have prevented the king's demands: That it was not the want of money, but the ill conduct of those who had the management of affairs, which caused the ditficulties of the government: that the Miscarriages in not assisting the Protestants of Ireland, were both so manifest and so pernicious in their consequences, that if they were not speedily remedied, the house would be obliged to take notice of them. Mr. Howe had the boldness to assert, That their present dangers proceeded from their not addressing the king to remove his evil Counsellors, in conformity to his late notion." Ralph.

Sir Tho. 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 nearly 1,800,000l. 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 3 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. It is 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 service, pray consider of it.

Sir Christ. 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.

king may appear at the head of the militia as well as at the head of a standing Army.

Sir Wm. 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 Committce 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 P'apists.

Col. Birch. When I speak for Money, I would lay the fault where it is. I will not talk of Account of Money now. It is 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; 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, it is 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 18 or 19 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.

2.