Grey's Debates of the House of Commons: Volume 2. Originally published by T. Becket and P. A. De Hondt, London, 1769.
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Tuesday, February 4, 1672 (fn. 1).
Wednesday, February 5.
[The Speaker elect having been presented to, and approved by, his Majesty, the King in his Speech, which was delivered in writing to the Speaker, acquainted the House, "That he had been forced, since their last meeting, into a most important, necessary, and expensive war, and made no doubt but they would give him suitable and effectual assistance to go through with it." He told them, "that the last supply did not answer the ends intended, the payment of their debts, and therefore recommended them again to their special care." Mentioned "his having put forth, before war was declared, a Declaration for indulgence to Dissenters, which had been attended with good effects;" and observed "that one part of it had been subject to misconstruction, viz. that concerning the Papists, as if more liberty were granted them than to the other Recusants, when it was plain there was less, these having public places allowed them, and those being confined to their own houses." He mentioned "one jealousy more, which he called weak and frivolous, and that was, that the forces he had raised in the war were designed to controul Law and Propertty. Wished he had had more forces the last summer; being convinced by the want of them then, that he must raise more against next spring, and did not doubt but they would consider the charge of them in their supplies." He concluded with "assuring them, that he would preserve the true reformed Protestant Religion, and the Church established, and that no man's property or liberty should ever be invaded."
This was followed by a long speech from the Lord Chancellor Shaftesbury, in which he enlarged on what the King had said. But no part of his speech was more amazing than that, speaking of the war with the Dutch, he said, "Delenda est Carthago." Yet while he made a base complying speech in favour of the Court, and of the war, he was in a secret management with another party.]
[A Bill for punishing disorders committed in Elections, was read the first time (fn. 2).]
Thursday, February 6.
The House went into a Debate on the matter of issuing writs, and making elections and returns, without order or warrant from the House, by the Lord Chancellor, the Parliament not sitting (fn. 3).
Sir Tho. Littleton.] Though some Writs were not issued out, it was for want of notice; though it happened now, it is not possible to be so again. It is confessed, on all hands, that no Members were chosen so since the Long Parliament; there are precedents before; there are many precedents that the Chancellor did issue out Writs.
Mr Secretary Coventry.] Conveniency, or inconveniency, is not the question, but right; whether the Chancellor has done legally, or not—Divers precedents even to the Long Parliament—Moves that the several opinions do lay their precedents on the board; if it be with Law, we must have a Law to take away the inconveniency.
Colonel Strangways.] Has not had time to search precedents, but here is an usage for many years. It is strange, that, the same week of attendance, the Writs should be sent out; both Right and Crown must subsist together—We are in possession of the thing, and would have gentlemen take the same care that are against it, on one side, as well as the other; let the thing be done clearly.
Mr Attorney Finch.] Will any man think that this is an universal proposition, that either Warrant from the Speaker, or Writs from the Chancellor, is an error? Notification from the Speaker to the Chancellor is the course, if a vacancy be—If they be sent to supply the places of sick persons, or beyond the sea, you may question them—If in Prorogation, for a Member that is dead, that sat here by a questionable Election, that Writ is questionable; but sitting by unquestionable right, this Writ is not only lawful, but expedient.
There never was any age, wherein Members were questioned for default of a Lord Steward [to give the oath of Allegiance and Supremacy, &c.] Persons elected in Queen Eliz. by the Chancellor's Writ, came not in, but when sworn by the Lord Steward Lincoln, who was absent, admitted. The 7th of King James is an authority both ways. No less than thirty-four now dead, and as many chosen during vacation of Parliament. The Writs were issued out by Lord Ellesmere; some were cases of Barons removed, and persons dead, &c. and then voted where Members are dead in Prorogation, and no contrary usage after, and Writs then went out. But six Parliaments since King James's time, and will the precedents of six Parliaments question those of sixty Parliaments? No precedents in 1618 to the contrary. There was a Writ in Prorogation for Hertford, but not executed. When the Parliament met, Sir Richard Wynne kept it in his pocket. A Supersedeas may be before, but not after, the execution of the Writ; if not executed, no injury done to the Borough, or Member. Though there was then a Supersedeas (Hertford,) yet here we have persons chosen in the room of such whose Elections were never questioned. It would be wonderfully hard now to declare a new Privilege that was practised before. These Privileges, thus introduced, are particular respects to this great Assembly, that signification might come to the Speaker. It is a necessity to the public that things might not be carried in a thin House—A Peer may knock at the door, and call for his Writ to the Chancellor—In Privilege-time we ought not to be at the Chancellor's pleasure, to send, or not send, out Writs. If use be made of ceremony beyond the civil intention, it is burdensome —Your displeasure is too great for any man to bear—If any ingredient of displeasure be in your vote, it will lessen the authority of the vote—If precedents in the thing be disputable, would have a Committee to inspect and report in time certain, that the world may see you delay not the business.
Sir Thomas Meres.] No great man, be he as great as he will, desires to contend with the House of Commons for Privilege; no man that considers the merits of this House of Commons, who have given more than all the Parliaments since the Conquest—Many kindnesses we have done, and if Privilege be a kindness from the King, we have not the least reason to lose it—We are now upon perfect point of right; have we nothing of right? Must all be prudence and convenience? If you resolve for the same Privilege, why should you lose it now more than in the former Speaker's time? Mr Attorney has granted "that the writs not executed are superseded," and those Writs, moved for, he would have go out—Notification was not the word formerly, nor Certificate, but the Speaker, in 1603, sent his Warrant to the Clerk of the Crown.
Mr Powle.] Speaks to the merits of the cause—Issuing out of Writs, the Parliament not sitting—It is against reason that an inferior Court should judge of the defects of a superior—The inferior Courts at Westminster cannot judge the defects of Chancery; the Chancellor cannot judge of Returns. If he issues out writs, he makes himself Judge of Returns—He must judge that the Member is dead, and that the person returned has a right to the place, and so becomes a Judge of things done in this House. Formerly the King never chose a Speaker 'till the House informed him of a defect, much less can he take notice of defects of Members. The Chancellor does more; he judges of removes out of this House into the Lords House—31 Henry VI. a Baron of the Exchequer sat then, and now the House thinks it not fit (fn. 4). AttorneyGenerals have been discharged the House; and shall the Lord Chancellor take out of our House so learned a gentleman as Mr Attorney? Judge Popham was sent for out of the House of Lords, when reported to be there. 'Till 7 Hen. IV. all Writs were returned to the Clerk of Parliament—The King's Bench judges of returns of Writs, though issued out of Chancery; and though in Henry IV's time, Writs were returned to Chancery, yet that alters not the jurisdiction of this House—If you admit the Writs, you admit the Chancellor Judge of Returns—23 Fliz. Writs issued out, and Members were discharged, so returned; and Ordered, That during the sitting of this House, no Warrants should be issued out, but according to ancient usage—Sitting is in common acceptation from first day of sitting, though in a restrained sense, to the time of Parliament actually being here, restrainedly whilst it sits, but in common sense from the first day. They in Parliament farther agree, That issuing shall not be at any time without a warrant from the Speaker —3 James, nothing done against it—Hertford Writ for Election suspended—1 Jam. Sir Francis Goodwin was chosen, though Sir John Fortescue was recommended, for the county of Buckingham; Goodwin was clearly elected, and not Fortescue; when it came to the Council, both Writs were voided, and a new Election. Great inconveniences by it—Admit the Chancellor to judge of these returns, and by consequence he will judge all your returns. The right of judging returns was, in Goodwin's case, pretended to be in Chancery, but judged against it here. By this means the Chancellor may chuse whom he will, and so no great person ever be called to an account here.
There is no time set in these Writs, when the Member died; no time of death, nor remove to the Lords House. And the gentleman that vouched the precedent of Queen Elizabeth, might have done as many in this Parliament, if they would serve his turn—The calling of a Member into the Lords House, must be by our consent.
Mr Swynfin.] Whether such Elections are good or no, without referring the matter to a Committee, is the question—Has not heard one precedent offered where such Elections have been allowed of, if notice taken of them; it is but of late usage the moving of the Speaker—How does it appear that the writs, urged as precedents, were not issued out by the Speaker's Warrant, the House sitting?—These Elections out of sitting—The main concern is, he takes the book of this House to be a record. The Statute 6 Henry VIII. makes any person departed the House, recorded in your books, to lose his wages—In any thing that concerns this House, all Courts must take your books for a record, and whether a Member be or not, your book must testify—How can any Court say such a Member is dead? They can say he was returned; but that he was a Member, your Book must be sought—A man may sit here a year, and die, and yet not [have been] duly elected. If the Chancellor has power to send out, he has power to deny, a Writ—Now the question is, whether you will search records? Your book must still decide it.
Sir Thomas Clarges.] The question is not, whether the King has power to issue out Writs, but whether the Chancellor, or the House of Commons, are to judge of vacancies. A Member cannot be arrested, and yet the King's authority is preserved—We should not be able to serve our King or Country, if our Privilege be not preserved—If scrupled, wonders that the reasons are not answered.
Mr Attorney Finch.] On the question of security and satisfaction, you have done it by voiding the Elections already passed. You have done it, and outdone all Parliaments—It is questioned, How a Chancellor can know a Member? Answers, By return. He knows he is dead by record, by executors and administrators. If they died since last Session of Parliament, no Warrant could be had from the Speaker. If, instead of 30 or 40, 150 Members should be dead, if Writs may not go out, the Parliament must be dissolved for want of number—'Till you have made the thing unlawful, and say so, it is lawful to do so.
Sir Thomas Meres.] No Government but is subject to objections of all sorts relating to mankind. If such an extraordinary thing should happen once in a thousand years, the King may then, if he please, call a new Parliament. Precedents are muddy, not clear, on the best side—The King is as much King of this Court as of Chancery, and those arguments to the contrary are disobliging arguments.
Mr Secretary Coventry.] In Committees of Privileges, you first send for the Mayor or Bailiff that returns the Election, before you condemn him—Will not you hear precedents for the Chancellor?—All that we have to do is to induce the King to be of our opinion—Do you believe the Chancellor will acknowledge he has done wrong, by submitting to your Supersedeas?
[Resolved, That all Elections upon the Writs [issued by the Chancellor] since the last Session, are void; and that Mr Speaker do issue out Warrants to the Clerk of the Crown to make out new Writs for those places.]
Friday, February 7.
Sir Tho. Doleman.] We have the King's Speech read, and his engagement in a war in it—Looks upon it as the consequence of the last war—Thinks the war just and prudent in the undertaking it, and therefore our duty to support it—We have made several calculations of the expence of the ships, which has been great—This Parliament is no less loyal than it was formerly—The last year a great fleet was set out, and now must be another—Proposes a supply, by vote, to give the King 70,000l. per month, for eighteen months, by way of LandTax (fn. 5).
Sir Thomas Meres.] Thinks there is no difference of a motion for the King's Supply from that side the House or this, both equally loyal. The King takes notice of "wars, old debts, his Declaration," and of that in the first place. It is indeed, and he guesses, and apparently should think so, that the King desired an union with his Protestant subjects—The Declaration of Breda to that effect. Something there is in this last Declaration that may shake the Law and Property of the subject, if the King and Council can suspend and make void a Law, which he fears it may do, therefore would have the Long Robe inform us, how far this may shake a Law; if it cannot, would be secured from this, and know the King's power in ecclesiastical matters.—In former Parliaments it was the question, whether we have any thing to give, before we do it; it is what the people expect for a return of their supplies—Would have it observed, that as the King may please one sort of people by this Declaration, he may displease another, and would have it put in the balance—As for the debt, it was examined 1,314,000l. next ware and tare, &c. you are engaged in a war; twenty instances of war advised with the Parliament; not that the King is obliged, but de facto has done it—Though he might have advised with us, yet believes it has been upon good terms, and doubts not of good success for the future. If we give now, though not much, it is a great kindness—When rents were higher, we voted the King a supply suitable to his present occasions, and believes not a negative, the present condition of the nation considered.
Mr Secretary Coventry.] It shows good prudence in the House of Commons to have refused to meddle with advising war; it is the King's just Prerogative—Knows the deference and kindness the King, his master, has for this House of Commons—The motives of the war was your vote, you "desiring his Majesty to justify the honour of the nation, and that you would assist him with your lives and fortunes"—There was a consideration that byassed the King, the Protestant party; the King would only humble them; but in the progress of the war, after we had once beaten them, and France, Dane, and the Emperor, for them; after that the King made a league, as good as the nature of the thing would bear—The charge of the war great—After a complaint of the breach of the Triple Alliance, and the French for them, yet had that alliance been concluded, Holland might have ruined us by it, by our assistance of them. To attend them here in our Channel, there has been the charge of forty or fifty sail of ships, they having so many in our Channel. The question was then, whether to conclude, whether France and Holland on us, or France and we on Holland. Had the League continued, we must have transported men into Holland at great charges. In the articles with Spain, was particularly mentioned an article, called Articulus Pensionarii De Witt—(Then he proceeds to relate the business betwixt us and the Dutch, about the plantations and Surinam.) The intended affront of the flag. They gave their Vice-Admiral equivocal instructions or orders. We have found the danger of being against the King of France, therefore we joined with him, and he has succeeded beyond expectation. If we had a war with France, it would give Holland much advantage both here and in the Indies, that sea-monarchy; the Hollanders are more formidable to us than it was thought, if first we should not be sure of the French. To these particulars, refers himself to Lord Holles, and whether the Dutch did not pursue our ruin by all imaginable ways—Hopes you will think the King has gone just and reasonable ways in the war. Those fellows are in the Tower now, that brought pretended treaties from Holland, but not a word of credentials from the Prince of Orange, or the States, and all in hopes of setting a difference betwixt the King and his Parliament.
Sir Robert Howard.] Nothing expedites the King's service more than ingenuous dealing with one another—Does not believe delays hid in the breast of any man here—Since he has had the honour to serve the King in the revenue, both comings-in more, and goings-out less —The war managed without a penny given, or borrowed; the King asks no more than will save him from shame in the prosecution of the war.
Mr Powle.] Should he consider the poverty of the nation, if not beggary, and what things have been done since last Session, or the unhappy question of, whether Grievance or Supply should precede? Parliaments have excused giving advice, because they have excused Supply, and have protested against many wars; but when he sees a foreign nation justifying libels and abuses, and invading the King's Crown, he speaks the voice of all the people, That the King must be supplied.
[Resolved, in a Grand Committee, That a Supply be given to his Majesty of eighteen months assessment, according to the proportion of the last Royal Aid, not exceeding 70,000l. a month. Agreed to by the House.]
Saturday, February 8.
Sir Richard Temple.] The end of this Declaration was to invite people into the nation, and is not against a Bill of general naturalization—King of France has naturalized almost all nations, except Spaniards and English—We want people, and this will bring them in.
Mr Garroway.] If we have a general liberty, we may have good as well as bad people amongst us—Knows not yet what Religion we have ourselves—Moves that those who would be naturalized, may be named in several Bills, as many as they please at a time, paying 20s. apiece only for the charge—Some have come in, but very few, upon that Declaration, though used very civilly.
Colonel Birch.] We hear the Dutch go to Embden, and other places, but few to us; unless you do something of this nature, the nation cannot subsist. The staple commodity is Corn and Wool, and if the people cannot get by it, they will come up by the Carriers, as we see daily they do, as if they were guards to them, and so to the Plantations, where they may do better—When the Bill comes in, then it will be a time to talk to you of their Religion.
Colonel Titus.] We want nothing but persons to eat and work, be they of what Religion they will. The improvement of lands is a mischief to us. Fullness of markets, and few to eat—Old Rome grew rich, by naturalizing all people; and we have naturalized Wales and Scotland. Our workmen are few, and dear, and so Wool and other things are cheaper thereby—5s. for a pair of shoes, that the land-owner gets not 1s. by, there is but such a number of good journeymen about the town, and they will work, or not work, as they please themselves—Would have alien duties free for native commodities.
Mr Garroway.] Moves to consider the Declaration, that we may the better remove the ill constructions which other persons put upon it, and keep Law and Prerogative from interfering, which he hopes will be done with that modesty that becomes us. He is far from oppressing tender consciences, but would have the thing settled.
Monday, February 10.
Sir Thomas Meres, after a silence some time.] In this affair we are like waters, the deeper the silenter; it is of great weight—He would have us leave the Laws as we find them, to our posterity—In the country, upon the first putting out the Declaration, he has conferred with books, and learned persons in the Laws, and finds that a general suspension of the penal Statutes is against Law; if we are mistaken, let us hear it clearly proved—Speaks only to method; if no man has any thing to say against it, there is an end, and let us go to the question.
Mr Waller.] When the state is rightly put, you will find it otherwise—The King says, "he will stick to his Declaration, and likewise will not invade our Rights and Liberties." Something there was of this at his first being in Parliament in King James's time; the Parliament desired him to put the penal Laws in execution against Recusants; not a word then of property. They proceeded to the Petition of Right when property was touched—In the business of ship-money, they went to the Lords to have the Judges punished—Opinion of this House clear, no Prerogative—Our ancestors knew that Kings can do no wrong, and, for point of safety, the most unbounded Monarchy in the world—The King beats his drum for war, when no man can—Henry VII's Proclamations were heard farther than his guns—Has observed formerly too much pressing of penal Laws—Lord Coke says (who was no great friend to Prerogative) "that Kings have, and ought to have, power in these things"—Empson and Dudley never broke any Law, but advised only the setting penal Laws on foot; whenever the legal Prerogative may supersede—Has often heard that the King allows the French Churches, for good of trade, as at Venice the Greek Churches. Shall the King dispense for trade, and not for peace? Because he is an Englishman, must he not have the benefit of the indulgence by the King's power?—Has heard it from Lawyers, that no Prerogative that is legal can be taken away by inferences of State. No branch of the Common Law must be taken away but in express words; in conceptis verbis. To take away flowers of the Crown, we bring stones on our heads. The King pardons Traytors, who are as bad as Dissenters. Armis ornatum et legibus armatum, says Justin.—He believes that the Dissenters repent of what they have done; but that Dissenters should at every Session have all hope taken away, can you imagine greater persecution? You will find they will affect your rents, and your trade. In this the King innovates nothing; the Church is part of the State, but the State no part of the Church—Theodosius and Constantine made edicts, and he that disputed them was put into a sack, and thrown into a river—Bishops were not as some are now; they were humble and godly men. The ignorant zeal was then as now; the Emperors without that power could not keep all quiet. The more supreme power resembles divine, the better it is. God uses menaces as to Nineveh, but does not always destroy—The Petition of Right shall never be altered—Must the King beat his subjects with one hand, and Amsterdam with another? You had no mind to take the King's power from him, because your vote in the Act of Conventicles does not say so—Moves not to strike at a power so near the King, and necessary for the people, and peace.
Mr Powle.] Would comply with the King, to do in a legal way, as now the Declaration does in an illegal—Would know the King's power in temporal Laws—He does conceive, if the King can dispense with all penal Laws, he may dispense with all Laws with a nonobstante —Special cases may so happen, that cannot be executed, but in others the King cannot dispense, but may pardon the offender—In the great case in the Exchequer now about Wine-Licences, a general suspension of Law amounts to an abrogation, which none can do but Parliament. This being so, by the words of the Declaration, forty Acts of Parliaments are suspended, some Treason, some Felony, Banishment, Mulcts, and the King cannot dispense them. By the Declaration the King intended no imposing upon his Protestant subjects; but it is clearly so upon the Judges and Justices of the Peace, who are sworn to execute the Laws—Does not this impose upon causes ecclesiastical and temporal? You make the King equal in ecclesiastical matters to temporal, and no more. Ecclesiastical matters anciently were committed to such persons as the temporal Magistrates—No appeals to Rome, no Legate, or Nuncio, to come into England, without leave of the King—When the Pope and Henry VIII. differed, he resumed his ancient right, by being declared supreme head of the Church, in the Convocation, by instrument, which was nothing but the ancient Common Law restored, which was clearly expressed —1 Elizabeth, all causes ecclesiastical restored to her, as well as temporal; no more power in the one than in the other. The Proviso in the Conventicle-Bill might as well have exempted in that Bill, and as well put in, in the Bill of the Irish cattle—The King cannot command, but by matter of record—The officers are to pass seals against Law at their perils—This is only a paper order (the Declaration) under no seal; how can the Justices take notice of it? Their Commission is under seal. The Consequence of this is direful; the King by this may change Religion as he pleases; we are confident of him, but knows not what succession may be—Something of this nature was in the Spanish match. Bishop Abbot said, "No toleration could be but by Act of Parliament;" Williams, the Lord-Keeper, excepted against it. When the King was rightly informed, in his Speech in Parliament, he disclaimed it—Look into the nation, and you will find nothing ever raised such doubts as this Declaration—If it be found to have these inconveniences, hopes the King will be moved to recall it.
Mr Seymour.] It has not been very unusual that this House has stopped the current of his Majesty's grace and favour—To Mr Powle's argument "of the Magistrates oaths." By 25 H. VIII. which regulates dispensations, the Judges have declared the right is not taken from the King, in the case of Port and Love—In Lord Hubbard—In Henry IV. dispensation for a bastard to be a Priest, against the Pope's jurisdiction; the King had the right then—Capital Laws cannot be suspended, but punishment pardoned. It may be the penal Laws are so lodged in the Crown—That of the subject is so mixed with the King in the penalty, the King may dispense with his own part, the subject's part he cannot—The Irish cattle hic et nunc—2 Elizabeth, felony to export money, malum prohibitum— Laws that relate to Government the King cannot part with, and e contra—Sir Arthur Ingram's case was an office bought, and void, because against Law; but in this case here has been no man's property invaded—Will you think that this shall have Royal Assent to bind up the King's hands? If an Act restrain the power of the King, these Acts are void—If our liberties are invaded, would have an Address to the King, and doubts not of a redress from him.
Colonel Strangways.] Will lay down some postulata of our Government: In all Kingdoms there must be a legislative power, and in ours not without consent of both Houses of Parliament; the Judges, in doubt, to explain the King's Laws. Laws, when first made, were necessary, and in process of time useless, and may be repealed, but still by Law. Must not the Judges execute the Law according to their oaths; and if they do not, are they not responsible? We own the King's power to dispense with the punishment, by pardon; but the King cannot dispense with a man to be a Papist, or Nonconformist—Values not ceremonies, but that they are by the Magistrate's authority. You grant that indulgence to persons that do not allow that power, in all lawful and honest things. What are we sent for here, if this be not arduum negotium? If Justices of the Peace have difficulties, they advise with the Judges; and those that have the honour to serve the King, might have advised this business with the Parliament—No country in the world where there is this indulgence, but there is a standing army. If the Sheriff shall, without occasion, summon the Posse Comitatus of the county, upon complaint made, he ought to be punished. The King's Ministers have done wrong, and by colour of the King's command to justify them!—Would never have the King deprived of the advice of both Houses, composed of so many persons of worth and loyalty to be trusted—He counsels the King best, who does it to maintain his Laws—An Usurper has as much power as a King that breaks his Laws. If no settled course be taken, we cannot expect any thing but confusion—It is the Law of England that condemns Treasons against him, and preserves his person; let us maintain it for his interest—It was his misfortune to sit here when negative voice was denied, and hopes he will not deny us.
Mr Secretary Coventry.] Thinks a positive declaration in this business dangerous; what will become of us all in emergencies, if, in fire, we are restrained from breaking open houses, or, in war, from marching over mens grounds?—Would not have us enquire into the just extent of the King's power, but address ourselves to his Majesty about it—The Master of a ship has power to throw goods overboard in a storm, though it is not consequential in a calm; though all Laws are not of the same importance, yet all are of the same authority. This House has made Addresses to the King for a Dispensation for Lent; it is no ecclesiastical thing, but to preserve cattle. You would not move him to an illegal and bad thing—To take away a liberty, and to give, are both alike in power—You desired the King to issue out his Proclamation to forbid bringing in of wines, that none should be landed after such a time—Would tread in those ways we always have done, that when we have any thing that offends us, we may address ourselves to the King to redress it, be it Religion, or Treaty, or Property; but to say that we shall irritate the King to all the penal Laws of the Kingdom, which if they must be the King's duty, Empson and Dudley were wrongfully taken away—Either the King must have the liberty of dispensing, or else is always obliged to put the penal Laws in execution.
Sir George Downing.] The King says, "the power is inherent in him;" but if the Question must be of the power of the King, he will be tender in it. Gentlemen that make account of their loyalty may give their voices freely in it; he, that has done otherwise (fn. 6), cannot be so free —We are now modelling the Government—In 1641, nothing but calm questions, nothing but securing property. But what followed at last? Monarchy came in, without conditions—Laws are in words; but that Government that shall be in words, is destroyed—The Speaker said, "we have been taught by his predecessor, that Privilege, whether twenty or forty days, is not to be put in writing to be circumscribed."—Can Government be without arbitrary power?—The Courts of Justice make Rules by the Judges and Chancellors, according to equity, conscience, and circumstances. If every bond put in suit, and loss of evidence, be not relieved, where are we? And yet all this is arbitrary—You must at last go to the Lords, and be well armed, to make it out with them.
Sir Thomas Lee.] The Judges have not changed their charges, in their circuits, upon this Declaration—Moves that as pardons are made void by circumstances (many are not) how far a power by dispensation may dispense the Law, may be declared—Doubts whether, if Judges had been consulted in the Declaration, it had passed, or no. — Transporting silver, without leave, felony—Laws may be useful to-day, and not to-morrow; but would have the judgment here—Would not meddle with Prerogative, any more than with your Privileges—Could something happen that no mortal man could foresee, and the King raise money; were necessity so great that all men may see it, no Parliament would question it. It is not the first time the King has been deceived in Prerogative—Hopes that, in this, he will be advised by the two Houses of Parliament.
Mr Attorney Finch.] The Long Robe he perceives blamed for being backward in declaring themselves in this business. What is incumbent on him he will discharge. He has been unhappy that his mistakes have been represented to his prejudice, rather than his good meaning to his advantage. There is no question of the King's power of dispensation, where the forfeiture is his own—The penalty, in popular Laws, is moiety to the informer; the King may inform for the whole, and dispense for the whole—Monopoly nor licence good in many cases—It is no question that the King may not repeal by Prerogative. In this case the King does not repeal; undoubtedly the King is not more absolute in ecclesiastical affairs than in temporal—By Common Law the King grants leave to hold livings in commendam, and unite parishes; and the same power the Pope had, the King is restored to by the Statute of Hen. VIII; the Law is not changed at all. The King by that Statute is head; that no foreign power can pretend to; and therefore it was ever the interest of the nation to take a temporal Pope for a spiritual one—The Canons not to contradict the Law of England—Necessity cogent that this Declaration should be made for quiet, there was so universal a connivance with an indulging recusants got from their neighbours; and now they may thank the Crown. Now the Question is, whether the King cannot dispense with the Laws, in order to the preservation of the Kingdom, (and we are all miserable if he cannot do it.) There is an impossibility of foreseeing all inconveniences—Some Laws can never be executed, as the Law about cart-wheels, suspended by Proclamation; no complaint made of—Planting hemp in Ireland—We have allowed the thing, but differ de modo—Would have it laid aside, because the King desires it, and his enemies do not desire it; let us do it with all reverence to the Crown—Would have us show more affection than learning in it—A mathematical security we cannot have; a moral one we have from the King—The King cannot dispense with Common Law—Religion cannot be changed without Act of Parliament. You may secure what you would have, without making so hard a vote as is proposed. Some would have a Bill for it; that is hard. Will you tie the King to indulge those consciences whether he will, or no? Now tender, hereafter may not be so—There is a great necessity to keep a bone from betwixt the King and Parliament, and hopes you will propose nothing but what the King may well grant.
Mr Vaughan.] When the King may dispense with any Law, it must be manifestly for the good of the subject; if it does injury to the subject, it is illegal; if not, it is otherwise—No man is bound to a Law, where there is not a punishment; and if this Declaration signifies any thing, the Church of England signifies nothing—He argued the dispensation with Merchant-strangers. You cannot hinder them, by Law of Nations; if they come for gain to the Kingdom, it implies toleration—The King may pardon Murder, or Treason, but not give licence to do them—If not dispensible to violate the Sabbath; if the King cannot dispense with the Law of man, à fortiori, not with the Law of God—All forts and manners of people are dispensed with by this Declaration, Turks, Jews, &c. This Declaration is a repeal of forty Acts of Parliament, no way repealable but by the same authority that made them—This Declaration does repeal fourteen Statutes of this King—Those who will take no oaths at all, and so Justice cease. It voids all testimony, and takes away my liberty, or estate. It is point-blank opposite to his Laws; they and this cannot consist. If Monarchs were as lasting as their Kingdoms, there could be no danger in this Declaration—We, that are Magistrates, lie under the King's censure for our oaths, but in a perpetual danger, in all places, from God.—As liberty of the subject consists in his right, so would have it measured by Law.—This Prerogative is illegal, and our vote will say no more than the Declaration does in effect.
Sir Robert Howard.] We are told "that all is swept away by this Declaration;" but what is the Church, if you come not to the observation of all its ceremonies, Church-wardens, visiting, and presenting, &c.? Is it an argument that the Church of England is unsupported, unless every man be compelled to every thing in it? But the Church of England is not concerned in this Declaration. Things are come to that height, we cannot pull them down again—He has expected to hear where property has been concerned; life, liberty, and estate is property; now, would you know how any of these is invaded? You have seen dispensations here, and have not thought them grievances—The Archbishop of Canterbury, Laud, found fault with the French and Dutch Churches.—Will you set up another Government?—The Long Parliament inserted this into one of its Articles; see how Parliaments change—An unhappy time was that, and some took unhappy parts in it—Nothing can gratify the Pope more than to say the King has no such jurisdiction—it is said, "What shall the Judges and Justices of the Peace do?" They receive an indulgence, the King has power to grant—It is a strange question to dispute what Prerogative is, when all Statutes make it so sacred a thing—The King says, "it is legal, and he will stick to it;" and we say, "it is not legal, and he shall not."—Is the Black Rod at the door? Shall we so hastily fall into such a vote? If you think your civil rights are in danger, you make the Declaration probabilis causa litigandi—Do Papists make ill use of it, or any other cause? Then address the King, but vote it not illegal—Proceed not this way to the King, else the Hollanders will rejoice.
Sir William Coventry.] This is a point tenderly to be handled, and hopes to propose something towards a close of the business—Will wave all arguments from an universal claim of Prerogative to be universally exercised—Our ancestors never did draw a line to circumscribe Prerogative and Liberty. He hears no man urge this Prerogative more than when the King cannot have a Parliament; but when a Parliament does come, something, you say, must of necessity be done, else you say it is legal, and that allows it—It has been moved for an Address, but no man says upon what subject-matter—This vote of the subject-matter of great difficulty—But since you may enter into debates you would avoid, he proffers you words not his own, but yours, upon the Declaration of Breda. It says, "Laws then in being, that could not be dispensed with but by Act of Parliament."
Sir Thomas Meres.] We may, at this time, come nearer his Majesty than ever; for now the House of Commons having seen how little good force will do, it may be, the reason of the thing will oblige us in a fair legal way of doing what the King has been designing these twelve years. This may prevent those heats that have been, more or less, about ecclesiastical affairs, almost every Session this Parliament.
Sir Philip Musgrave.] Believes that his Majesty had gracious intentions in this Declaration, but it did make disturbances in most loyal hearts—Moves to take that way that may have the least reflection on the King—Has seen sad effects of it—Moves for an humble Address of this House to his Majesty, to preserve the Act of Uniformity.
Serjeant Maynard.] Dispensation of the penal Laws to be illegal, is more than you intend to vote—It is agreed on all hands, that the King cannot suspend so as to repeal; else why do we make any Law? He may make them as well in ecclesiastical matters—Whether universal Dispensation, not limited, does repeal a Law, or no, he will not enter into dispute—Would distinguish, in the Question, "Popish recusants;" but whether "legal or illegal," is too harsh.—Rather for an humble Address to the King to remove our fears in the business.
Sir Robert Carr.] When we consider what ways have been taken to quiet people, the thing was dispensed with by Justices of the Peace, and the people ought not to owe that to the Justices, which should be to the King—Hears not one instance against property—Would have a Committee to pen the Address in such words as we may not repent when we have done.
Sir John Birkenhead.] Recusants were tolerated ten years in the beginning of Queen Elizabeth; and no Laws were made against them, 'till she was sure she could make them good. The oath of Supremacy not exacted in the Lords House; but the Commons got them in by incapacitating them for offices 'till they had taken that oath—Conformity a thing much in option.
Colonel Titus.] On both sides gentlemen have acquitted themselves well—Coventry's motion was to alter the words of voting; the Declaration illegal is not the matter —Moves for an Address to the King, "that penal Laws, in ecclesiastical matters, may not have their force, till the Parliament shall declare some act in the business."
Sir Edward Dering.] Is no advocate for the legality of Declarations; we need not look farther back than 3 Charles, liberty infringed; some sent abroad, Hammond and Glanville; banishment, martial Law; then an Address was made to the King, that the thing might be redressed —We rather now speak what we fear, than what we feel. The King has given you liberty of Address in all difficult cases, and moves for a Committee now for an Address to the King.
Colonel Birch.] If ever men were to answer for a trust, it is this: Can Laws be any ways suspended but here? —Desires, unless some will make it out, that we may pass it by; we must do it; if dispensation cannot be made out, then put the Question.
Serjeant Seys.] The carrying out Wool, and bringing in Gascon Wines, and transporting Bell-metal out of England, were particular things, and not at all invading the Rights of the subject. From the dispensing with cartwheels to jump to that of conscience, is a parvis ad magnum, that makes us have reason to fear. Patents are judged unlawful every day in Westminster, and voided by Scire facias The Laws are no ways to be suspended but by Act of Parliament.
Sir Thomas Oshorne.] Does not wonder that the King expresses these things to be his inherent right, when his own Council thinks so, and his Counsel at Law—Moves that the Address may be referred to a Committee.
Sir Thomas Lee.] What is the use of his great Council of Parliament, but to inform the King he has been misled and mistaken by his Privy-Council? It is our duty to the people, and the King calls you to declare your opinion. It plainly appears to be a mistake in the Crown, and you must inform him of it.
Mr Attorney Finch.] Knows not one of the King's Counsel learned [in the Law] that ever saw this Declaration otherwise than in print, and he never made any other inferences from it than you have done. The King, by his Supremacy, may discharge any cause in ecclesiastical Courts, they being his.—Why do you put an universal term upon a thing particular?—Moves that we may humbly petition the King that it may be so no more.
Mr Cheney.] Would not have it thought abroad, that there is such a necessity of this Declaration as is implied, the King having his Militia to protect him—Would address the King to suspend his Declaration, and form it into a Law.
Sir Charles Harbord.] Laws must be altered by the same authority they were ordained by. It has done him more hurt among his father's friends, than good to those indulged—Support the Prerogative by the affections of the people; they are twins. Is against the Question.
Colonel Strangways.] Thinks it worth enquiry, whether the late Lord-Keeper did not refuse the seal; the Judges never consented—Would not have those that are not Lawyers, nor Divines, prescribe out of their profession—Does not find them consulted—In point of Law, would have the King advised by those that profefs the Law.
[Resolved, That penal statutes, in matters ecclesiastical, cannot be suspended but by Act of Parliament, 168 to 116; and a Petition and Address were ordered to be drawn up to be presented to his Majesty.] [Adjourned till Thursday.]