Kelly, is, in my opinion, repugnant to reason, and contrary to justice. WHARTON."

Debate in the Commons on the Bill for laying Tax upon Papists.] April 26. Mr. Lowndes presented to the House a bill, 'For laying a Tax upon Papists;'* which was read the first time.

Upon the late Plot, Walpole grounded, what was more politic as I thought, than just, the submitting the estates of the Papists in England to a Tax of 100,000l. under, the name of a Composition' for their Recusancy, although it did not appear that any, or at least, but very few of them were engaged in this design. But he did it to terrify them from giving any countenance to such undertakings, and to make them to stop, which they were most likely to be able to do, all such from proceeding, by shewing them, that let what would happen, they as a body of men should pay for it; and although the levy fell very short of the sum imposed, yet it has, with the since mildness of the government towards them, very probably been the means of keeping these people quiet from this time. He answered the objection of injustice in it, not by contending that they were in this particular conspiracy, but this 100,000l. was but a part of what they had already forfeited, which was a third part of their estates, from the time of their recusancy, and therefore due to the government, though not taken; and as the government now took but this small proportion, it would rather be a favour to them to let this compound for the whole; and a provision was inserted in the act for that purpose. But all this appeared farce to me and some others, and which I shall shew you in what I shall say elsewhere upon this subject.

"Another thing which arose from this last, did not do the government so much service as this: It happened by accident; but he took it up and pursued it with his usual party spirit, and it was this; somebody in the debate of the other matter, said it ought to go to Protestant Non-jurors as well as to Papists, and the rather because they were both already liable to a double of the common land tax. This appeared so plausible, that it was generally given into; but then to do it with any justice, every body was to have an opportunity of swearing to the government; and, to do it with effect, every body was to be obliged to swear; that thus the real Non-jurors might be known, and register their estates, for this or any future imposition of the like sort, or to keep them in dread of it. "I have mentioned this last to you, not so much for the sake of the thing itself, as for the extraordinary effect and operation it produced. People in general were so terrified with the apprehensions of not only forfeiting their estates in possession if they did not take the oaths, but also what they had in reversions, limitations ever so remote, or the least relation to or expectation of any, nay with regard to their money or effects of any sort, that the whole VOL. VIII.

May 3. The above Bill was read a second. time, and committed to a Committee of the whole House.

Committee on the said Bill,
May 6. The Commons being in a Grand

Mr. Lutwyche spoke against the Bill as follows:

nation almost, men, women, and children, ca-
pable of taking an oath, flocked to the places
where the quarter sessions were holden, that
they might by swearing to the government free
themselves and their families from the danger,
as they thought, of losing their fortunes to it.
I saw a great deal of it, and it was a strange
as well as ridiculous sight to see people crowd-
ing to give a testimony of their allegiance to a
government, and cursing it at the same time
for giving them the trouble of so doing, and for
the fright they were put into by it; and I am
satisfied more real disaffection to the King and
his family arose from it, than from any thing.
which happened in that time. It made the
government to appear tyrannical and suspici-
ous, than which nothing can be more hurtful
to a prince, or lessen his safety.

"Upon this occasion, which indeed was one of my reasons for relating this fact to you, I cannot help observing of what little use to a government the imposition of oaths to it has ever been. It is very true that nothing in the constitution is more ancient. It was the practice among our Saxon ancestors, continued after the accession of the Norman race, and enforced often by particular oaths under several of the following kings, but never prevented any revolution that either reasons of government or ambition could bring about. To come nearer to our own times, oaths were made to Charies the first, but did not save him. Oaths were taken to the parliament and common-wealth, but the same people forgot them or broke them under Cromwell, and all at the restoration swore allegiance to Charles the second. They swore the same to king James, and the success of the Revolution made the same persons almost take the same oaths to king William and queen Mary, and to queen Anne: many in the rebellion of 1715, had sworn to king George the first, and more who wished it success. After all this, who can think these bindings of any security? It may torture the minds of people, but never influences their actings.

the ca

"A government is never secure of the hearts of the people but from the justice of it, and the justice of it is generally a real security. A good government, therefore, does not want these oaths to defend it, and a bad one, suists say, frees subjects from the obligation of them, and is a doctrine the people in all times have given into. Some particular men may possibly be influenced by them, but I speak of the generality of the people; and, with regard to them, it bas ever been found at least useless. But this practice is, in many respects, generally very dangerous, Princes are apt to trust too 2 A

Mr. Speaker;

The gentlemen, who have spoke in favour of this Bill, have urged, That since the happy Revolution the Roman Catholics have been more or less concerned in every conspiracy against the government; so that if they did not shew themselves in the late conspiracy, it was out of prudence, and not for want of zeal for the Pretender's cause. They will not allow, that it is liable to the objection of not being supported with particular facts, but say, with great probability, That the Roman Catholics have made large contributions here at home, to send to the Pretender and his adherents abroad And if they are in a capacity of supplying the necessities of their friends abroad, it is but very reasonable for them to contribute to the defraying an expence they have, in a great measure, occasioned at home.

Upon this general way of reasoning, this Bill for raising a hundred thousand pounds upon the Roman Catholics bas been formed; and a general charge of this kind may be a sufficient ground-work for a preamble to the Bill; but the enacting part ought to be supported with particular facts plainly proved, otherwise we may involve innocent persons in a punishment only due to the guilty. And though the legislature hath sometimes gone upon the notoriety of the fact, it is to be hoped, that this method may be but seldom taken where the life or for tune of any subject is in question; nothing being inore uncertain than hearsay, conjecture

much to it in evil government, and are too much encouraged to that by it. Charles the first was deceived by it, and it deluded his son James into the extravagant attempt he made upon the religion and liberties of his subjects. Besides, the minds of men are often corrupted by this to a slight of the obligation of an oath in general, either by taking these oaths unwillingly, many times against their consciences, and only by compulsion. Others swear what they do not comprehend, as was the case of nine in ten of those who took the oaths on the occasion I have been speaking of, and then the evil is, as was observed by a great man at that time, that when men habituate themselves to swear what they do not understand, they will easily be brought to forswear themselves in what they do understand. The like danger is from the frequency of oaths that is here required, which always takes off from the awe of them, and consequently their force. Indeed no oath should be imposed where it is possible that the interest of the person taking it, should induce him either to break it or swear falsely; and, in my opinion, no oaths at all should be appointed but in judicial matters; which as they are necessary in those cases, should be kept for them only, that they may thereby be the more solemn, and consequently the more forcible there, where only they are really wanted, or can be of any true use in society. To conclude this digression, I have often wondered that men do not see the unreasonableness

and forced constructions; which the law has wisely provided against by ascertaining fixed rules to direct the judgment of the inferior courts of justice.

It is likewise given, as a political reason for passing of this Bill, That raising this hundred thousand pounds upon the Roman Catholics will deter the Jacobites. abroad from entering upon such rash enterprizes, when they find that their friends here in England are to suffer for the disturbance they give us: And it will also shew them, that the nation can put itself in a state of security without burthening the subject; which has been one of the chief views of the conspirators to add fewel to the discontents of the people. But if none of these arguments should prevail; if the notoriety of the fact does not convince; nay, if the greatest probability of the Roman-Catholics sending money abroad can meet with no credit; the legislature, say they, is highly justified in passing this law for raising an hundred thousand pounds upon the Roman Catholics; Since by the laws now in being, as by the acts of queen Eizabeth, the first of king George, &c. the Roman Catholics are subject to three times greater forfeitures than this tax will amount to: And that the raising of this hundred thousand pounds is a mitigation of the severity of the law; and so far from being reckoned a hardship done them, it ought to be considered an indulgence in the government.

I have here thrown together some of the reaand danger of making people swear where there may be an interest to tempt them to forswear, or afterwards break their oaths, from that uniform practice of courts of justice not to suffer any one to be put upon his oath in judgment, when he is either to get or lose any thing by the event of that cause in which he is brought to be a witness.

"But to return: notwithstanding the imprudence and folly of thus swearing the whole nation in the manner I have described, yet was the same thing continued by a subsequent act of parliament deliberately made against the advice and admonition, and to the great scandal of many wise men, who wished the best to the government, and saw the prejudice it would do to the King and his family. But as parties are generally factions, and the chief business of factions is to annoy one another, those men have always most merit with their party who contribute most to this humour; and to that, as this was designed to affect the Tories, must this silly zeal of the Whigs then in parliament, be imputed: and it is most certain, that on too many occasions it has been thought, be was the honest Whig-friend to the government, who did most to make the Tories enemies to it, which many of them from resentment to the Whigs, and being deprived of power, did but too much incline, and give into."-Speaker Onslow's Remarks on various Parts of Sir Robert Walpole's Conduct. Coxe's Walpole, vol. 2, p. 555.

sons which have been given for passing this bill; | tion, That their religion maintains principles
I think those I have mentioned are what inconsistent with the welfare of the govern-
seemed to me to make the greatest impressionment;' you punish them for the cause of their
upon the House, when this matter was first de-
bated. These reasons were likewise inforced
[See p. 51.] by a gentleman (Mr. R. Walpole)
whose opinion is justly esteemed in all parlia-
mentary considerations. I will now mention
the objections, which occur to me against the
passing of this Bill.

religion. And for my own part, I look upon
persecution to be a doctrine odious in itself,
highly reflecting upon the honour of Parliament,
and greatly infringing upon the freedom of the
subject. Nor would I have his Majesty's mild
and gracious reign blemished with such a mer-
ciless act of the legislature, which must neces-
sarily confirm the obstinate in their errors, and
entirely alienate the affections of the well-dis-

In answer to the general surmise of the
Roman Catholics disaffection to the govern-
ment; I cannot help observing, That this gene-posed Roman-Catholics.
ral charge neither can nor ought to affect any
particular person, without proof of some particu-
lar fact alledged against him: And it would be
the highest injustice to make one man suffer
for the crime of another. The law supposing
it incumbent upon every man to be accounta-
ble for his own actions, doth not require what
is not in any man's power, to be answerable for
another; and 1 think I may affirm, with great
certainty, that in no one instance the laws
have adjudged a penalty upon one man for the
crime of another: For though in the case of
high-treason, the blood being attainted, a son
does not attain the honours which would have
descended to him, if his father had not been
guilty of treason; yet in that case a man does
only forfeit a fee-simple estate, and the income
of an estate vested in him during his natural
life: But the highest crimes and misdemeanors
cannot avoid a settlement, to the prejudice of
an innocent person.

I the rather insist upon the unreasonableness of punishing one man for the crime of another, to shew the absurdity of a maxim which is laid down for a certain doctrine, That because some of the Roman Catholics ate suspected to have been concerned in the late conspiracy, therefore the whole body of the Roman Catholics must equally bear the burden of a tax, which some of them only are alledged to have made necessary. I would not be thought to be an advocate for the Roman Catholics, any farther than common justice requires, but I must appeal to every one who has read the report of the Committee appointed to examine Layer, Whether it appears there that the Roman Catholics in general are concerned in the conspiracy? Or, whether any mention is made in the Report of any one Roman Catholic of consequence, except a noble duke, [the duke of Norfolk to whom a letter is supposed to be writ, intimating, as if he knew of the designs carrying on? How unjust then would it be, if the suspicion of this great man's being engaged in traiterous practices, at the hazard of his life and fortune, should give occasion to the inflicting the severest penalties upon many innocent families, who neither wish nor can hope to better their fortune by any revolution of affairs.

I think, Sir, I have fully answered what has been said for passing the Bill, upon the general head of disaffection; but one thing more I will add, that if you impose this tax upon the Roman-Catholics, upon a general allega

We are likewise told, That the raising this hundred thousand pounds upon the RomanCatholics is done out of a political reason, to deter the Jacobites abroad from entering upon such rash enterprizes, by making their friends here in England pay the expence which the nation finds necessary for its own security.? As this is a matter merely of speculation, and as there is no certain rule to go by to koow what will be the consequence of raising such a tax, I will venture to give my conjectures upon this head. I do imagine, that as the Pretender's scheme is unjust in itself, it can be formed upon no better hopes than the discontents of the people; and the more room there is for complaint, the better prospect he has of success: and if it does happen that these complaints are well-grounded, as were the losses the people suffered in the South-Sea, then in such like case, how much industry is used by the Jacobites to aggravate the national grievances and to impute every mischance to the ill conduct of the government. I am afraid, if the Roman-Catholics should be thus heavily taxed; if their peaceable and quiet behaviour does not intitle them to the common protection of the government; nay, if they are more hardly used by not having been concerned than when they were actually engaged in rebellion: I say, I am afraid they will embrace any opportunity to free themselves from such intolerable burdens, thinking under no form of government they can receive worse treatment.

I shall next consider the groundwork of this whole Bill, viz. The raising one hundred thousand pounds upon the Roman-Catholics, in lieu of certain forfeitures they have incurred by several Acts of Parliament now in being.' And by stating the balance betwixt the Roman-Catholics and the government, it is pretended, That the sum now demanded of the Roman Catholics falls far short of what is due to the government, if all their forfeitures were rigorously exacted.' I am very ready to grant, that the Roman-Catholics have incurred several forfeitures: but I think the question at present is, whether it is necessary at this time, for the security of the government, to take advantage of those forfeitures? For if there is not some particular reason shewn, why you ought to exact then more at this time than another, you may with equal justice raise one hundred thousand pounds the next year upon the Roman Catholics; and so on, whenever the go

vernment shall stand in need of such a fund. | king James, and several of them have conformBut surely it is not sufficient to say, because ed to the Church of England: So that we may the Roman-Catholics bave incurred several reasonably conclude, that the number of Roman forfeitures, that therefore you will take advan- Catholics is one third less than they were when tage of them for the plain answer to that is, king William came to the crown. And I beg why do you do it now? And, Why have you leave here to observe a notion, which has long not done it before? It is here necessary to ob- prevailed, That the liberties of England can serve, that when the legislature passed this law, never be in danger, but by the Roman Cathoto subject the Roman-Catholics to the forfeiture lics.' Indeed, one would have imagined that of two thirds of their estates, this law was ra- experience would have exploded this opinion, ther made intentionally to keep the Roman- since there is nothing more certain than if all Catholics in subjection to the government, than the Protestants were united, no power upon with any design of having it put in execution. earth could hurt us. The contest does not lie For otherwise, I dare say, so inany administra- betwixt the Protestant and Roman Catholic tions, who are the executive part of the law, religion: our divisions are not occasioned by could never have thus long dispensed with the increase of Popery, but it is obvious to their duty. every man unconcerned in the dispute, how the leaders of each party promote their own mercenary ends by possessing their followers with unnecessary fears and groundless jealousies.

conspiracy; and whom, upon enquiry, you find to be innocent in every particular suggestion alledged against them, I do not take to be the means of convincing the world of the impartiality of our proceedings.

whole House to alter and amend the Bill, For laying a tax on all Papists,' pursuant to the said Resolution.

May 11. The Commons, in a Committee of the whole House, made a farther progress in the Bill and a motion being made by Mr. Lutwyche for a clause for including the Papists and Nonjurors in Scotland, in the Tax intended to be laid on Papists and Nonjurors in England, it was carried in the affirmative by a majority of five voices only.

I find great stress laid upon the Roman Catholics sending money to the Pretender, and his adherents abroad; a fact so confidently affirmed, that one would expect some better proof of it than a general assertion; and yet I have never heard one single instance given to convince me of the truth of this assertion. ConMay 14. Mr. Farrer reported the Amendsidering the great vigilance of the ministry, who ments the Committee had made to the Bill, have been able to discover the most subtle con- which were agreed to, except the clause abovetrivances in carrying on this conspiracy, it ap-mentioned; upon which a debate arising, lord pears to me very unlikely, if the Roman Catho- Gage and Mr. Hutcheson insisted upon the lies had made any considerable remittances equitableness of the said clause, and abroad, that they should have escaped the notice of the government. I would fain know how comes this notion of the Roman Catholics sending money abroad; and why they are more zealous for the Pretender's cause, than the rest of the Jacobites? If it is an equal contribution among the Jacobites, it ought to be an equal tax upon the Nonjurors and every man who has paid his quota, as well as upon the Roman Catholics. But to single out one set of men from the herd of the Jacobites; and upon mere supposition, to inflict the severest penalties upon them, is an act no ways agreeable to the just and equitable proceedings of Parliament. For which reasons I am against this Bill.

Mr. Lutwyche was supported by Mr. West, lord Gage, and Mr. Thompson, member for York.

Mr. Trenchard, in particular, declared, That he thought it very unreasonable that the Papists should bear the whole burden of this tax, when there were so many Jacobites who had contributed as much to the raising public disturbances as the Papists themselves; and therefore he moved, "That the Nonjurors ought to be ineluded in the said tax intended to be raised upon Papists."

Accordingly, after some debate, the Committee came to the following Resolution, viz. "That towards raising the sum of 100,000l. granted to bis Majesty, towards reimbursing to the public the great expences occasioned by the late rebellions and disorders, to be raised and levied upon the real and personal estates of all Papists, an equal rate and proportion be raised and levied upon the real and personal estates of every other person, being of the age of eighteen years or upwards, 'not having taken the oaths of supremacy and allegiance, and the abjuration oath, who shall upon due summons neglect or refuse to take the same.”

This Resolation being the next day reported by Mr. Farrer, a motion was made, and the question put, that the said Resolution be recommitted, but it was carried in the negative. Then it was resolved, That the House do agree with the Committee, and ordered, That there be an instruction to the Committee of the

Sir Joseph Jekyll said thereupon, That he knew no reason why the Scots should be excused from paying their proportion of this extraordinary tax, unless it was, because fortyfive Scots representatives in that House always voted as they were directed: But if that was the reason, it was to be feared, lest Cornwall, which sends up almost an equal number of members, might, upon the same consideration,• claim an exemption from taxes.

But Mr. Robert Walpole having represented, That the names and real estates of the Scots Papists and Nonjurors not being registered, it was impossible to ascertain their proportion of this tax, he was supported by most of the courtiers; and the question being put, That carried in the negative by 178 votes against the said clause be made part of the Bill, it was 170. And then some other Amendments being made by the House to the Bill, it was ordered to be engrossed. However, two days after, a Bill was ordered to be brought in to oblige all Papists and Nonjurors in Scotland, to register their names and real estates; which was accordingly brought in, and had an easy passage through both Houses.

May 17. The Bill, For laying a tax upon Papists and Nonjurors in Eugland,' was passed and sent up to the Lords.