Grey's Debates of the House of Commons: Volume 10. Originally published by T. Becket and P. A. De Hondt, London, 1769.
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Thursday, May 1.
In a Grand Committee on the Regency Bill.
Mr Sollicitor Somers.] 12 Edward III, the Duke of Cornwall was Custos Regni—The Duke of Bedford, the King's brother, was Custos, and left till farther Order. —33 Henry VI, Custos by Act of Parliament, with several other Precedents. 15 Edward IV, in his Expedition into France, Edward, Prince of Wales, was Custos during his absence, and till farther Order.— 13 Henry VII, the King constitutes, in his absence, Queen Catherine Gubernatrix Regni. 14 King James I, in his absence, till farther Order, the Privy-Council were constituted, and no name given in the Commission, but to take care of the King's Children and Affairs. In Charles I's time, the Council were impowered much as in King James's time, all determinable in absentiâ nostrâ in partibus transmarinis, et donec redier: All those Powers to be exercised by a particular Council. In Edward III's time, three Counsellors mentioned. In Henry VIII, Gubernatrix Regni, 'twas expressly appointed what Act the shall do by her own Power, and what by her Council. These I lay before you, and make what use of them you please. This is a new case, and like none of those I have mentioned; and we are in a Government but a year old. Any thing you do of this nature will be of great consequence; and, as this case is, to consider extreme well what is done. 'Tis discoursed of abroad, of a Commonwealth, and we should be very considerate in divesting and divesting. The necessity of a Change should be obvious and apparent to the World; so suitable and invincible, that it should always carry its own excuse along with it. I heard it mentioned yesterday, "That all Commissions do determine upon this Regency:" But if it be a doubt, 'tis your great concern to obviate it. If some, in the King's absence, should refuse to act, and others to obey, 'twill be of great consequence to the Government; and some Question will lie as to the continuation of the Parliament: But, as to the King's exclusion of all Power, during this Regency, it was proposed, if you leave out some words, "it would be a cure, if the words ended there at Dominions, &c." Does it not carry all the Places annexed to England ? Suppose any exemption to Ireland, that it should not extend to it, yet all doubts are not obviated. The King in Ireland, and the whole Administration of the Queen here—Whatever Necessity, or Orders, are but Letters of Intimation from one to another. If the King send Ships from Ireland, they have no sort of Authority to serve out of Ireland. These are difficulties. Give me leave to hint some things: The Bill says, "As often as the King shall be out of England, &c." I will suppose they go to be crowned in Scotland, all their Power ceases; they are no sooner on Scotch ground, but all Regal Power ceases; there should be some express Clause for resuming their Authority. 'Tis a nice distinction to separate Regal Power from Authority; and since there are some Opinions in the World, that the King is only de facto— You have declared him King of Right—But if you look on printed Books abroad, he is made only King de facto, and King in Possession—I took the Oath in another sense, whatever others did. Perhaps some disaffected persons may not yet appear—If you place it in the Queen, the best Woman in the World, place it so clear, that there may be no doubt.
Sir John Lowther.] After the difficulties you have heard from the learned Gentlemen, no wonder I should doubt; but when we are in a plain, to run round and miss the way we may wonder. We are misled by the Bill, so far mistaken by the Lords, that if we pursue it, we shall be led into invincible difficulties. You are told, "That as this Bill is penned, Commissions of the Peace cease." Where the consequences may tend, I know not; nor where it may end; but all this may be obviated; if all Acts of this Government may be good, and all hers may be so too, you may obviate in great measure the confusion. I offer, that, instead of the enacting part, you will declare, that all the Queen does, in absence of the King, shall be in the same force as if the King executed it—That by the Government beyond the Sea, the Ships are not restrained in Port, as well as in Ireland—One difficulty only, of several commands; but there will be such a deference to the King's resolutions, that he will always be obeyed—And that, on the King's return, the Queen's power ceases, I think will be no doubt—All Acts done by her Majesty to be of equal force as if done by the King.
Sir William Pulteney.] The more I have thought of this Bill, the less I have understood it. I will not dispute what an Act of Parliament can do. It may have some resemblance of the great power of the World; it may create, and uncreate. It may make the Moon shine, for ought I know—But we have the case of Lieutenants, Guardians, and Custodes Regni, but that is not our case. It was never before in the World. Here are a King and Queen, and a King invested with Regal Power, and you divest him, and put it into the Queen. The King can take no notice of what she does here. In the Queen is the Regal Power, as our Queen can or could do; she may dissolve this Parliament, raise an Army, set out a Fleet. I know not how to qualify these things, but I see terrible consequences. When an Act of Parliament comes to terminate his power, I know not how that will operate on all Commissions. I know not but some men may have a strange notion, when the King is gone, that it is a resignation of the Crown. A King and Queen of England, and not in England, will be a strange composition. What authority will there be to send Ships out of Ireland ? Though I think it of mighty advantage that the King go into Ireland; yet this Bill is of so strange a composition to come from the Lords, and the Judges there, that this will have many more consequences than I can enumerate. My Motion must be this, to take three or four days time to consider of it.
Sir Robert Sawyer.] That it is necessary that the Government be lest somewhere, all agree; and I cannot think any way but by something in the Queen's hands, &c. You have been told of Precedents, &c. That of H. VI. is not of this nature; for the power of Custos Regni is well known. In some Acts of Parliament, their power was limited. The Custos was but a delegate of the King's; though he might do Acts as King in such exigencies, yet he was excluded the King's power. The King cannot delegate his power, because the King and Queen must not give this power away, but by Act of Parliament. 'Tis not designed to exclude the exercise from the King, either in Ireland or France, but that there must not be a defect of the Administration, during the King's absence. The Crown and Regal authority are vested in the King and Queen. Though the King issues out the Proclamation, they are in the name of the King and Queen.
Mr Pelham.] Seeing the Long Robe are so full of doubts, we may very well, and they will not inform us. I move to let the Bill lie upon the Table till this day sevennight.
Serjeant Maynard.] This noble Lady, the Queen, has so demeaned herself, that there is not one Man nor Woman but will trust her. By the former Act, the Administration of the Government was solely in the King, and now by this in another, exclusive. No wife man will trust where he cannot remedy. The Precedents spoken of are like making a Map of a Country which we have never seen. There was a Custos, but limited to some things, not without Counsellors, and they named; but as for the learned Gentleman (Sawyer) I am sorry I seldom agree with him in the House. Thomas Aquinas brought Religion to nothing by distinctions—If this Commission be granted by authority, does not the former authority determine ? Being derivative from it, the King has it no more, it is in the Queen. All that is done to us for our Religion and Properties to be put upon a moot point on a sudden ! Let us consider of it, and God direct us !— We are fallen into a wilderness entangled by our Enemies; God send us well out of it ! Many hold themselves not at all bound to King William. Queen Elizabeth was a young woman, yet conquered the greatest Prince in Europe—No man can wish better to the Common-wealth than I do; if that stand, I care not what becomes of me. The King to have power in Ireland, and none here ! The thing is so great, that I am upon my knees lest we should be swallowed up by enemies, or betrayed by our friends.
Mr Harcourt.] The King having declared his resolution to go into Ireland, it is our Duty to help him thither. The King has chosen the Queen for the Administration of the Government in his absence. I am not for putting her under Guardianship, nor for putting her under Council. She may sway the Sceptre, and I know not why she should not have the Power. As to how far this determines the Commissions, &c. and the Parliament dissolved, &c. if doubtful, you may remedy it by a Proviso, and put it into order. If Ireland at least be not included, or orders from thence are ineffectual—But these objections depend upon the single point of the King's Power ceasing. If you keep that Power in the King, by a Proviso, the King's Orders here and there may be effected.
Sir Thomas Littleton.] It is possible that you are not so ready to determine a thing of this consequence. You have heard a great many objections made; I cannot pretend to answer them. You have had a Motion to adjourn the Debate till a farther time; but if you consider, it will make a great alteration, the Government being but very young, and not very strong. 'Tis altering Regal Power; but to do it safely, it is well moved to adjourn the Debate for a week.
Sir Thomas Clarges.] If report be true, the difficulties in Ireland are not so great as apprehended. If there be 30,000 men there, I know not any to meet half of them. I have heard of Col. Wolseley's actions there,and the only [actions] I have heard of with a handful of men, when the enemy were four times more, they beat their best Troops under Macarty, the flower and best of their Army. I hope, that, if there be a necessity of the King's going, that necessity may be explained. The Bill is conditional, if the King shall go. I would not be left here without some provision for the public Peace. I would not have the Debate put off, till I know not when, nor for I know not what. If the Objections be not cured, the King has no power when in Ireland. But the great difficulty is, if the King be not master of Ireland this Summer, we shall not hope to keep England long. If the French King once gets the Ports of Ireland, we shall not send out a Cock-boat. Let us not, by putting the Debate off, make the difficulty so great, that the King cannot go at all, but sit de diem in diem, till we have settled the thing.
Mr Harbord.] I am amazed to see us handle such indifferent things, and let the Government sink. I will lay it open plainly to you; though, I confess, the maxims of King Charles II's Government are still apt to be misrepresented, for what a man shall say here, as I have been. But for an Account of Ireland, why in such a condition ? The Troops are not able to march; Officers are not paid since the first of September last; most are behind-hand of subsistence-money; to the Army 80,000l. due. I have laid it open to the Commissioners of the Treasury, and they cannot do it. If they have not suddenly 200,000l. in Ireland, nothing can be done there. If you do nothing now, it will be too late to think on it.
Sir Edward Hussey.] I take the King to be no King after this Bill is passed. 'Tis no man's intention to have the King put upon another Abdication; if he has a mind to another Abdication, those near him, I hope, will acquaint the House, for the preservation of the Monarchy and Church. I would have a week's time at least to consider of it.
Sir Edward Norris.] If the King should die in this Expedition, and the Queen be Regent, what if, out of Duty to her Father, if he land, she should not oppose him ?
Sir Edward Seymour.] The methods of this Debate confirm me in what I thought, when we first entered into it; that there would be so many difficulties in it, as would not easily be digestible. You find, by the Debate, how little the thing is intelligible. If it be no more, when it has passed both Houses, I need not tell you the consequence. These considerations are sufficient to put it off for some time. I would not have it too long, but put it off to Monday.
Which was ordered.
Friday, May 2.
Mr Anthony Rowe, Member for St Michael's, attending in his Place (fn. 1), [being charged, by Sir Edward Seymour, with dispersing a Paper reflecting on their Majesties Government, and on several Members of the last Parliament, the same was brought up to the Table, and read; being entitled, "A Letter to a Friend, upon the Dissolution of the Parliament, and the calling of a new one; together with the List of those that were against making the Prince and Princess of Orange King and Queen."]
Sir Edward Seymour.] I shall not say much now. You have heard the Gentleman ? When you have passed yout censure on the Libel, I shall tell you my thoughts of the Person who published it.
Col. Austen.] I am as much against these sort of practices as any body; but may I not name a Member guilty of the same Crime ? 'Twas Col. Beaumont, who brought a Libel, and out of it named Clauses, and Persons that brought them in. Pray accept of this Libel, and read it, and pass your censure upon it.
Sir Edward Seymour.] I humbly speak to your Order, and nothing else. You have ordered Mr Rowe to be here, and you have read the Libel, and, before you proceed, I beg your determination in that, and let this Gentleman have the censure. This has been kept long. Mr Rowe was charged in his Place, and had time, and I presume that Gentleman (Beaumont) will require the same time that the other had. If both belong to one thing, I hope you will send them both to one place.
Col. Austen.] I thought you were bringing things of the same nature to the same tryal. I must take leave not to answer mens laughing, till I am answered in another nature.
The Speaker.] They are several Crimes, if they are Crimes, and severally to be answered. When you call for it, it shall be ready,
Sir Thomas Clarges.] You have read that Paper; one and the other Paper are gone all over England, not only into Cornwall. 'Tis injurious both to King and Subject; but since you have read that Paper, and it appears so notoriously scandalous, you ought to pass your censure, and declare the Paper "scandalous, and prejudicial to the Peace of the Nation."
Sir John Guise.] I would have us all agree in moderation: It has been a consideration that you should not proceed farther for fear of sharpening Humours. If those arguments have prevailed on you then, why not now ? I would know whether every County, and every Borough in England, has not had hard words and sharp censures. I know no Country (but our own) that has had these excesses; reproached with being Common-wealth's men, and no Church of England men; these are notorious before you in the printed papers dispersed. I would have equal justice done in these things. If you think it convenient, go on. I have something to say of other men, and I am sure nobody can say any thing of me.
Mr Godolphin.] I never gave my Vote nec ad aulam, nec ad populum, but ad liberandum animum meum.—
Sir Christopher Musgrave.] Hearing my name, in that Libel, calls me not up. I am the same without doors as within. Seeing there are Reflections upon the King, you must pass judgment upon it. The other Libel relates to the Constitution of the House; since it is come before you, you must pass judgment upon this Paper before you. 'Tis a violation of the Constitution of Parliament. If persons be exposed for their Votes here, it may work upon the Mobile. (I fear it not, I am not considerable) First, take care to support the Government, and vote this Libel, "A high reflection on his Majesty and his Government," and [pass] a judgment next by itself.
Mr Harbord.] A Libel was seized by Mr Frazer, and brought into Council. The tenderness of the King was such, when it was brought before him, that the person was warned of it at his peril, if he did disperse any more. Though this be a great fault, I know not how things may revive. I would condemn this Paper, and so let us be at peace with one another.
Sir Thomas Lee.] The steps of this matter were thus. Some days since, a Gentleman was accused of dispersing this Paper, who was absent, and a day given him to appear. When that day came, the Gentleman was not so early here as his time; afterwards he came, but you deferred it; you then thought fit to adjourn it. The Gentleman is now in the House; you must next have him heard, and then he ought to withdraw, he cannot be here; and you then declare the punishment, when you see how far your Member is guilty; and then proceed to censure of the Libel. This before you is but a Copy of the Print, and the person attesting it is not brought to the Bar.
Sir Edward Seymour.] Harbord has given you an Account of what was done in Council; I believe he has Licence from the King to do it, or else he has broken his Oath. When Mr Rowe had dispersed these Libels in great numbers, and with malice prepense, he said he would print them. If you take no care of this, in the next Election of a Parliament, you will have enough to do.
Mr Harbord.] I understand my Oath as a PrivyCounsellor, and will keep it. In what I informed you, Counsel was heard on both sides, and the thing was public.
Sir John Lowther.] I am one of those that are of opinion, that there is nothing more dangerous, nor of worse consequence, than Libels. As to this, of dispersing Libels at Elections, we need nothing now to divide, we have Enemies enough abroad—I believe, if there be a scrutiny into this matter, it may tend to unite us. There is no proof, who penned this Libel, or who dispersed it, nor, does it appear, that this is the Libel he did disperse. I know not how a Court of Judicature will take this Libel to be proved. I desire the Gentleman may be reprimanded; but, not to widen the gap, I move, that Gentlemen defer the business till some other time, and put off the examination till another day. If you hear them all, you will employ your time in little else. I would adjourn it to this day fortnight.
Col. Austen.] I am no great Lawyer, but I think the fact proves the malice, not the malice the fact. It must be malice prepense, let the person be who it will. Whatever is said on the one side, will be proved on the other. I am as willing to throw them both away as any body.
Sir Edward Seymour.] I have not told you one word of my own knowlege of this Libel; but Mr Rowe is not to answer his accusation till it be proved. To vote this a Libel, and to let Rowe sit to vote whether it be a Libel or not, you will have work enough. If you go on, let witnesses be called in. Here is a Copy of a printed Paper; the information is, "that Mr Rowe had dispersed Copies of it, and was sorry he had no more; and, before it was printed, Rowe said he would print it." I would not bring a trifle before you; this is worthy your censure; if not, you will have enough.
The Speaker.] This is a Copy of a printed Paper, and the Attestation of the Mayor.
Sir Thomas Littleton.] It does not appear to me to be so proved, as to put a Question upon it. It may be proved, and I believe it as much a Libel as any body, but it spread very universally. You may go upon both the Libels, but I believe, in your prudence, you will lay them aside. At the beginning of this Session, two were produced, and both referred to the consideration of a Committee, but you have had no Report; perhaps the Committee in prudence would not do it. I hope the prudence of the House will lay this aside.
Sir John Bowles.] I wonder Seymour should call this Copy an Original.
Sir Edward Seymour.] It was this very Paper that was dispersed. I confess myself "a very ill Copy, and full of Errata; "but I take Bowles to be "a great Original."
Sir John Bowles.] I know not why he should call me "an Original;" but I would not go after his Original.
Col. Birch.] I know not how many of these may come before you. Since the wisdom of the House sees that this tends to division, pray adjourn the House, as has been moved.
Sir Thomas Clarges.] You say "the Paper reflects upon the King and the Government." A Gentleman tells you, "this very Paper was dispersed." You must propose a Question before you adjourn this Debate. No expedient can be, but sending for the witnesses at the door.
Mr Hampden.] I see the Debate is like to beget great heats, I have a Libel of infamous Queries charged upon the other Gentleman. I hope all will be called scandalous papers, as well as others. A thing read in a noise cannot be strictly examined and censured. To say one numerical Paper was dispersed, this Copy, or Original, of many printed, dispersed—I would consider whether this is to be cooled, or thoroughly prosecuted. The issue of all Debates is a Question, and put it, Whether you will adjourn the Debate.
Sir Thomas Clarges.] I would know upon what Question the Debate is adjourned ? I will do my duty, let Gentlemen be as ridiculous as they please (some laughing) First, state the Question, what shall be on the Journal. Will you make no censure upon it ? Collect the Question upon the Paper, and then put the Question for adjourning.
Mr Finch.] I speak to wording of the Question. If the House be inclinable to adjourn the Debate, I would never have the Question worded so, as if possible the House did ever consider this to be a Libel. If the Question be to adjourn, I offer it thus; "That a Debate arising about a scandalous Libel, the House adjourned the Debate of it to such a time."
Sir Christopher Musgrave.] I take this to be a Libel upon the Government, and if Witnesses be at the Door,and you will not hear them, to say you will adjourn the Debate, is to call for it when the Witnesses are gone, after long attendance. When our Duty to the King, and the Honour of the House are concerned, it is agreeable to justice that you deny no man.
Col. Austen.] Several things must be debated before this comes to issue. I can never think a deliberate thing to be a reflection upon the House; therefore adjourn the Debate.
Lord Eland (fn. 2).] I think the kindest Motion for Rowe is, to call the Witnesses in; either the thing will be justified, or your Member sorry for the accusations.
Sir Thomas Lee.] The first Question is, Whether you will adjourn the Debate, but not next, calling them in; you must not be starved because Witnesses are at the Door. To Order only I speak. I would plainly understand—I am for vindicating the King's honour, for if this had touched the King's honour, some of his Officers would have taken notice of it. Stafford's was a Treasonable Paper, from a Man under some distraction, and you discharged him. Some things in themselves are better laid asleep, and this is one.
[The Question being put, That the Debate be adjourned, it passed in the Negative, 180 to 156.
Resolved, That the Paper entitled, &c. (as above) is a false and scandalous Libel, reflecting upon their Majesties and their Government, and the Rights and Privileges of Parliament.
[May 3, Omitted.]
Monday, May 5.
In a Grand Committee, on the Regency Bill.
Sir Charles Sedley.] The objection t'other day was, "That all Commissions determine, if you lodge the power in the Queen, in the King's absence." If he be in Ireland, he is not here. I cannot see any hurt for so short a time, by authority of the King, and consent of Parliament.
Sir William Whitlock.] I find that every body believes the King intends to go into Ireland, and that it is necessary the Administration-Power, in his absence, be in the Queen. The Objection made is, the danger of the trust in the Queen; but you may trust either, or both, in the Power you have conferred upon them, If the Parliament have trusted them with the Powers, you may trust them with the Administration of them. Leave out the words, "and Territories." The King may by Act of Parliament exercise Regal Power in Ireland, and the Queen in England; and when the King returns, he returns to the former Administration. If he die, there is an end of the whole.
Serjeant Maynard.] The Reasons of this Bill are, "That the King going out of England into Ireland, there is a necessity somebody should do what the King should do here." You are moved, "That the Administration should be put into the Queen, but not out of the King, to advise in the Politics."—'Tis well known, what turbulences and great disturbances there are in Scotland, and as much in Ireland, if what I hear be true: With whom have we War ? 'Tis said with King James, but it is with France. King James is but his Tool; with whose money, whose advice, and whose men ? All French; can any man be so simple as to set up any body, but himself ? Consider, if this Army prevail, it is not King James, but the French, that will have these Kingdoms. Will the French King, out of kindness and compliment, part with three Kingdoms conquered with his own money ? I would have the Bishops consider (where so much right is laid) either the new ones, or those that are out; and I would have the Popish Lords consider, who live quietly: Will the French King let the English have great Estates here, when he can have the French ? Will the French King, in compliment to the Papists of England, put by his own Subjects ?—Will you have the same Council about the Queen, when the King is gone, that never could find out where our miscarriage lay ? Londonderry was not relieved, the provisions were all corrupted; we sent to know, from whence this came: Shales was found out, but we could never know who recommended him to that service; and from whence comes this neglect ? From those that acted or advised ? I propound this, not only to the Queen's Councils, but in the Government.—Unless he would change his Religion, a great Man, the Duke of Schomberg, must have no employment in France. We must give our Souls to him, and he will take our Estates—I did not say we should name a Council to the Queen. The Administration is in the Queen, but it is the Council that does all. Those that would keep King William out, and keep King James in, now King William is in, 'tis strange they should be trusted. The alterations in the Militia of London have ever influenced England, and we give the King Thanks for the best put out, and the worst put in !— Confirmations of the Liberties of the Church to the Church, and we apply them to the Churchmen.
Sir Thomas Lee.] If you will have only the Counsellors now well spoken of, and never ill spoken of, you will have but a few of either. I am afraid, if a man pass away a Manor, and the appurtenances are left out, the Chancery will judge it for the Purchaser; and Ireland will go away with England.—Regal Power, by Serjeant Wogan, is distinguished from executive. I am afraid I cannot distinguish them, to make them separable and different. To turn Regal Power out of possession, I am not very fond of it in Parliament. Let men tell plainly their minds, whether they will leave him no Power, or leave him only King of Ireland.—Such Power of disposition of the Crown being taken up by the people, I think this Bill necessary, and I hope the Long Robe will find out such a way to invest the Queen with the Regency, as not to dispossess the King. I would have it plainly understood, whether; whilst the King is in Ireland, he loses the executive power in England, and whether he is not less than he is already.
Sir Thomas Clarges.] I do not undertake to be wise enough to solve all these doubts; 'tis plain we are in great exigency, and the King, as now advised, resolves to go for Ireland. I would not be hasty in advising. I would not raise such a heap of difficulties, that we know not which way to turn. The French King has committed such great cruelties; scarce such since the Roman persecutions. I would rather endure any thing than that. Is Ireland in such a condition, that his presence is so necessary there, or Ireland will be lost ? What if the King does not go, and we advise him to it, and Ireland be lost, and he tells you, "By your advice I did not go !"—You are moved to give the Queen more Power, the Administration jointly in King and Queen, and to the Queen, in the King's absence; shall the Queen's hand be enough to Warrants in the King's absence ? There are perplexities every way, all will be of no effect—If the King goes not out of England, or if the King goes into Scotland, it relates to both purposes. I with we apply the Debates to amend the Bill as well as we can; if he does go, that he may go. I see no great hurt of adding "Administration" to it. Something must be done, that the King may be in a possibility of saving that Kingdom.
Sir Christopher Musgrave.] You have a difficult thing before you. Our Duty is to make the Bill so as to reduce it to the service of the King and Kingdom. I suppose 'tis not any body's design to divest the King of any part of his Royal Power, but to consider; how to let the Queen into some of that Regal Power, now in the King; and I should be glad to be informed, how to let the Queen into more than she has already, The sole executive Power is now vested in the King. I would not take away Power out of the King; but, suppose you should say, whatever Orders shall be sent by the King, out of Ireland, shall be obligatory here.
Mr Foley.] To prevent two co-ordinate Powers, let the Queen have the Administration till farther Order from the King.
Sir Joseph Williamson.] The difficulties to me are not so great, but the inconveniences may be such, as may dissolve the frame of the Government that you have taken so much pains to settle. This is the case of all our Kings that went into France. I know of nothing to be now done, but what was then done. What extent of powers, and, on what terms they left such powers behind them, we know.—Now is a joint Sovereignty, which cannot dispute, one which is impracticable—So there is nothing called upon from you, but to do, by the Legislative Authority, what the King cannot do by Commission. I think there is difficulty in leaving power with the Queen, both the way and manner of it. See what that power was then within the Kingdom of England; in the whole course of the Government these powers were left, and let no more be now in the Queen, in the absence of the King.
Sir William Pulteney.] All agree, that it is your intention not to divest either King or Queen of any thing in the Act of Recognition. As this Bill is drawn, we are under great difficulties; but I think a short Bill may be drawn for the King to transfer so much of the executive Power to the Queen, to take away all ambiguities.
Lord Commissioner Hutchins. (fn. 4) ] If I have had many various thoughts upon the Voyage, I have had none upon the Bill. This doubt, whether the Queen is not so amply and fully Queen as in the Act of Settlement, may be of dangerous consequence, and how far the Commissions of Justices of the Peace will be void—This may affect our Alliances abroad—The King may see more in Ireland than can be seen here. I humbly propose, that this may not so pass, as totally to divest the King of his executive Power. No Precedent did ever reach this case, and, in that we mispend our time. Possibly there may be many inconveniences for the Administration of the Government in two persons, and to divest the King of it is not to be thought of. I move, That the Government may be executed in the name of the King and Queen.
Mr Hampden.] I observe, most Gentlemen speak very doubtfully. The more I hear of this Bill, the more doubtful I am; and the more I hear the Debate, the less am I able to resolve myself. You are got into a labyrinth by this Discourse. If there were a Precedent, it would help us greatly; but no Precedent can be quoted that will reach your case. I am afraid to bring your Constitution to a School-point. A videtur quod sic, probatur quod non—The Government is settled, and I desire to continue it so. The breaches we make in it, neither we nor our posterity can ever repair. The King is going abroad, and you are finding a way to be safe when he is gone; but I doubt, by this Act, you can never be so. This will not come together by a concurrence of atoms, according to the new Philosophy; but when you come to explain this Act at length, you will find so many difficulties, that you will not know how to reconcile distinctions without differences. I have some other thoughts. You adjourned it propter difficultatem, as the Judges do in WestminsterHall, and still you are no forwarder. You have had good Reasons, and yet they come not up to it. If the King goes into Ireland, without this Law, he may act his executive Power, (the Sea-hazard excepted)—I would have Gentlemen consider, whether, if the King do this without Act of Parliament, (which is wild-fire, if he does otherwise than you intend) it may not unsettle what may never be settled. Let the Act lie, till you have considered if some other thing may be thought of. An Act is a dangerous application in such a thing as this. What work has a word in an Act of Parliament done ? And now, to break into your Government in its infancy ! I doubt you cannot see how far an Act passed may work. I desire it may be considered, whether a way may not be found to arrive at your end, without this Act.
Col. Birch.] By all I have heard, by this Debate, there is more and more difficulty; and nothing is offered in order to satisfaction. It has been offered to be effected without this Act; if it can be sure, 'tis the safest. I would not refer it to any body in particular; but that the King's learned Counsel may bring in something to-morrow.
Sir John Lowther.] You have had a proposition, whether to do this without an Act, either intimated by way of Address to the King, or Advice. This expedient will take up a great Debate to find out a model for it, and the Lords concurrence must be had to the matter and manner of the project, and then to present it to the King. But, when all is done, will this satisfy the People ? And will it not constrain the Obedience of the Subject ? Unless it be a Law, it will be laid aside: Though the intimation of both Houses will carry great authority, yet not to the satisfaction of the People: Therefore propose something that the House may go upon. You are told, "If it were thought the King's Power determined in Ireland, all would be against it, but for a concurrent Power in the Queen." Propose such a Question; if not practicable, go to some other expedient. If it be practicable, I have not heard of a better. It is objected, "That the two Powers may clash, and a question, which of the Orders shall be obeyed;" but I cannot easily imagine that the Government should so misunderstand one another, as that this should not be known. But, admitting there should be clashing, you may, in a few words, help it: Thus, "That the King's Orders take place;" and the Government may be resumed as easily as you make an Act. 'Tis agreed by all, that the Queen be so let into the Government, as to return to what it was.
Mr Hampden.] I am of Opinion, if you require the concurrence of the Lords, and then send to the King, that it will be an Act according to the old form. The King gives his consent in pleno Parliamento, and it is a Law. In the case of Lambert and Vane, both Houses petitioned the King for their Lives, and the King consented—Not that I intend to introduce a Form of Concession without Act of Parliament. You give the King Advice not always by Act of Parliament. You told the King, "You would give him Assistance, not only by Money, but Advice;" and this may be brought into such a Form, without Act of Parliament. It may succeed well, but is a dangerous expedient.
Mr Finch.] If the King goes into Ireland (otherwise we are debating upon nothing) the Government is in the King and Queen; the Administration in the King alone: What do men understand by that ? Every direction of Regal Power is by the King alone; his will and pleasure gives the sanction to obey. Royal Assent is both in the King and Queen; but the King's Assent gives the Authority, not from the King's only Command, but Regal Power and Authority from them both. The Act took care, that, if they should not agree, or give contrary Command, though Regal Power is in both, yet the Exercise should be in one, else it could not be obeyed. It is but one Regal Power, invested and determined in one. As for Commissions, &c. that is no objection, for the Regal Power is from both. But the King being in Ireland, the defect of immediate Administration [requires] that this must be by Act of Parliament. I think it cannot be otherwise. Regal Power in the King and Queen, to whom given ?— Every Commission to a Custos Regni, upon return of the King, immediately vanished, and the Power ceased. It could not enter into any man's thoughts, that Regal Power should be in two persons. She cannot give it to herself, and no person ought to have it. If Regal Power be in her alone, Ireland is annexed; when you vest it in her, and her alone, the King is divested of the Administration of Regal Power; he must write for directions from hence, which is absurd; somebody must be in, and nobody but the Queen can be in. The King being in Ireland, Regal Power in both warrants the immediate Administration here. You may declare, "That, during the King's absence, every Act of Administration by the Queen alone shall be good, when the King directs not the contrary;" and, in that, you affirm the Administration to be in him, and upon his return this ceases. This may solve the difficulty; if there be more, it may be solved upon Debate. If there be contrary commands in any Warrant from the King, all subordinate Officers are to obey them. In the Commissions from Custos Regni, they never excluded the King from direction of the Administration: This makes no alteration in the Regal Power, nor disaffirms the King's.
Serjeant Tremaine.] We all wish that there was no occasion for the King's going. The Question is, Whether it is not a greater good, his going, than staying here ? (Sir Wm Leveson Gower's Motion, to know who advised the King to go, and that we should advise him to stay.) This Bill, besides the Act of Settlement and Recognition, says, "The Regal Power is in the King and Queen; the Exercise in the King alone." This Bill will quite turn it to Regal Power in the Queen. What effect may this have in Ireland ? I desire it may be considered, what influence Scotland may have, when we give a Precedent to shift and change the Government here. I cannot tell what the construction may be there, whether it may not be said, "That the King has parted with the Government of England, and is gone into Ireland." I would consider, whether this may not be done without an Act of Parliament.
Sir Thomas Littleton.] All I have heard proposed, tends to unsettle the Government, every one of them. Your Government is not strong enough to try experiments upon; you have too many already. As to the Queen, &c. in this Bill, it does downright depose the King. I am sorry it was no better considered before it came from the Lords. If then it be every body's intention, that the Administration shall not be out of the King, I ask, to what purpose is the Bill ?—'Tis as easy to send to the King for Orders, as for the King to come over to do it. All the Provision you make, the King must be concurrent in. 'Tis said, "If the King give no directions to the contrary, the Queen's Orders shall be obeyed." Can the King know a thing before it be done ? And if done, and the King direct not the contrary, it shall be good, though the King never knew it, and 'tis done; 'tis good, whether the King direct it, or not direct it, factum valeat—The Queen cannot give and take, unless you say the King and Queen shall join quoad particular purposes. If, by Commission, she be Custos Regni, how far [may it be] for her honour to stay here ! A thousand things may be said, able to make a man's head ach.
Sir Henry Goodrick.] We have heard a great deal of learning on this occasion; and, I am confident, good affection. The safety of the King's person, and England, are the main considerations. Whoever gave the King this advice, if the utmost necessity did not justify it, no Gentleman dares own it. 'Tis too bold a thing for a man to countenance the King in it. God directed his glorious expedition. I take it for granted, that the King will go into Ireland, and now we are upon negative Resolutions. The Question is now, Whether to divide the Regal Authority ? If one go out, where will you place it ? If, by Commission, in Custos, or Custodes; if you go by any former Precedent, I doubt you will be mistaken; but for the Power so reversed, and the King to resume it at his return—I hope you will come to some conclusion, and neither advise nor dissuade the King. (And so reads a Question.)
Sir William Leveson Gower.] I am persuaded that the King has taken a Resolution to go; but I must as boldly say, the King did not apprehend that he must leave his Regal Power behind him; and I would address to inform him so. I am not for chopping and changing Regal Power, to go a King from England, and be but a Gentleman in Ireland; and am as much against a Custos Regni. If the King thinks fit, let the Queen have it alone, and address, by the Privy-Council, to inform the King so, and to stick to the Act of Settlement. Either part with it entirely, or keep it entirely; and do not make him a King, and unmake him again.
Sir Henry Goodrick.] The King, in his Speech, said, "He was willing to leave the Queen the Administration of Regal Authority in his absence." There will be no Action, and, I fear, nothing likely to be, till the King comes into Ireland. I look upon the King's Resolution for Ireland as an inspiration from God, who has blessed his generous thoughts to go into Ireland. I would willingly take longer time to consider; but I look upon the King's Resolution to be stedfast.
Col. Austen.] I would defer proceeding any farther, till the King gives intimation how far he is willing to divest himself of Regal Power; volenti non fit injuria. If your minds alter so soon, none knows without doors how soon it may alter again. I move for some modest Question to the King, to know how far he would be divested of his Regal Power.
Sir Christopher Musgrave.] If the King had not said it, in his Speech, you might have done so; but, in plain English, it is you that have no mind to let him go; I dare not say so. Some are against an Act; but, if not by Act, what way can it be done but by Commission ? And that is much more liable to exception than an Act of Parliament. When by Commission, may not People say, "The Power is in both; and I am not, by Law, obliged to obey without Act of Parliament ?" The King abroad, and the Commission disobeyed, what will be the consequence ? Read some of the Propositions.
Sir Thomas Lee.] I am of opinion, with Austen, that you had better have no Bill than that Clause. So few are for its standing in the Bill, that it cannot, till other words be put in the place of it, I observe, the King said, in his Speech, "If you thought it necessary, he should go, &c." It has been said, "The King had considered it by his Council." If it had been considered, you had not had so much Debate. If they did not consider it, will not you ? This use may be made of the Debate; the House may give Order to compose a Clause, so as not to deprive the King of Regal Authority, and not know how to give it him again. If you once take away Regal Authority, there remains little to be obeyed. I have said nothing today to hinder the King's going, or to promote his staying; from all these difficulties you may have a Clause to answer your ends.
Mr Godolphin.] That there may not be indecent Jealousies betwixt the King and Queen, in the Administration of the Government, in the King's absence, I proffer Finch's Clause, viz. "That every Act of the Administration, by the Queen alone, shall be good and valid, &c. wherein the King, by his Sign-manual, does not decree the contrary."
Mr Harbord.] Perhaps, if the King had thought of the inconveniences, he would not have said what he did, in his Speech, of Ireland; and I wonder at it, when I hear men in the best Posts in England in such doubt. The best thing you can do, for the present, is to adjourn the Debate to to-morrow.
The Speaker.] It was said by Harbord, "He stood astonished, he acknowleged, at what a man in the greatest Post in England said." Let us know it, that we may be astonished too.
Mr Harbord.] I am not only astonished at that, but at what you have done here too; when I hear that, in the Lords House, some called the King de facto only (fn. 4).
Mr Finch.] I am not fond of any thing that I have delivered to you; my Proposal was, "That the Queen's Act, in the King's absence, should be valid in all cases, except where the King directs the contrary." My meaning was only this, whether it solved not that difficulty of not leaving the King in the Administration. In Peace, the Government of Ireland, by a Lord-Lieutenant, or Deputy, is directed by the King. The Queen provides for the immediate necessaries of the Government, and the King has the controul of all, and she is subject to the King's Orders in his absence. The King cannot exercise the Government here in all emergencies in Peace and War: 'Tis impracticable, unless he could be sure of Winds, and could direct his Enemies where they should be.
[To proceed to-morrow.]