. tors, 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 be 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 non obstante. 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 WineLicences, a general suspension of law amounts to an abrogation, which none can do but parliament. This being so, by the words of the Declaration, 40 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 Hen. 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. Eliz. 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 lordkeeper, 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 recal it. unusual : : Mr. Seymour. It has not been very 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 Hen, 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 Eliz. felony to export money malum prohibitum : laws that relate to government the king cannot part with, and è contra-Sir A. 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. Col. 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 res ponsible? 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 indul- | 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 men's 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 ail 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 inust 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*, 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 prede Alluding to his having been in the interest and service of Cromwell, cessor, that privilege, whether 20 or 40 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 Philip Warwick. The gentlemen of the long robe have left the dispute to us, being loth to disturb what they have most advantage by. Sir Tho. 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 sta tute 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 inconveni- | ences: 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. again: he has expected to bear 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 abp. of Canterbury, Land, 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 Wm. 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 conie, 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 subjectmatter: 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 par 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 dispensable to violate the Sabbath; if the king cannot dispense with the law of man, à fortiori, not with the law of God: all sorts and manners of people are dispensed with by this Declaration, Turks, Jews, &c. This Declaration is a repeal of 40 acts of parliament, no way repealable but by the same authority that made them: this Declaration does repeal 14 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 con-liament.' 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 sist. than the Declaration does in effect. Sir Rob. 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 Sir Thomas Meres. We may, at that 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 12 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 maj. 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. Serj. 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 Rob. 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 Eliz. and no laws were made against them, until 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 until they had taken that oath: conformity a thing much in option. Col. 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 Edw. 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. Col. 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. Serj. 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 cart wheels to jump to that of conscience, is à 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 Tho. Osborne does not wonder that the king expresses these things to be in his inherent right, when his own council thinks so, and his counsel at law: moves that the Address may be referred to a committee, Mr. Hurwood hopes the king will hear the counsel of this house; his great council, as well as his other council. Sir Tho. Lee. What is the use of his great council of parliament, but to inform the king he has been misled and mistaken by his privycouncil? 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. Sir Robt. Howard. If a noli pros. be entered by the king's attorney-general, is not this a suspension, and will you hinder that? 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 Cha. 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. Mr. Waller. Words that sound true, and are parliamentary, are better than those that are not. It has been good doctrine, that an Ordinance has had the power of an Act by the king's consent. Col. 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 profess the law. Mr Attorney Finch. Some Canons, 1 of king James, the king may dispense with. Is it your intention that the king shall not dispense with them? Mr. Powle. Those Canons were not passed by act of parliament, nor ever confirmed, and so not within your vote. It was then 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. The Commons Address to the King, against the Declaration for Indulgence.] Feb. 14. Mr. Powle reported the Petition and Address to the king upon the above vote, as follows: "Most gracious sovereign; We your maj.'s most loyal and faithful subjects, the commons assembled in parliament, do, in the first place, as in all duty bound, return your majesty our would appoint to-morrow for this end, that no jealousy may be objected: knows how matters will go when money is passed: would not have this debate stop the Address to the king. Mr. Cheney. Would have persons withdraw, to add a few words to the Address, of uniting his majesty's Protestant subjects. tion. most humble and hearty thanks for the many gracious promises and assurances which your maj. hath, several times, during this present parliament, given to us, that your maj. would secure and maintain unto us the true reformed Protestant Religion, our liberties and properties; which most gracious assurances your maj. hath, out of your great goodness, been Sir John Monson thinks it not proper to pleased to renew unto us more particularly, at add any thing to the Address, until we have the opening of this present session of parlia- passed this address by vote: moves for toment. And farther we crave leave humbly tomorrow, to take this business into considerarepresent, that we have, with all duty and expedition, taken into our consideration several parts of your majesty's last Speech to us, and withal the Declaration therein mentioned, for indulgence to Dissenters; and we find ourselves bound in duty to inform your majesty, that penal statutes, in matters Ecclesiastical, cannot be suspended but by act of parliament. -We, therefore, do most humbly beseech your majesty, that the said laws may have their free force, until it shall be otherwise provided for by act of parliament; and that your majesty would graciously be pleased to give such directions herein, that no apprehensions or jealousies may remain in the hearts of your majesty's good and faithful subjects." Debate on the above Address.] Sir Tho. Littleton. Several motions were inade at the committee for an Address to the king for ease of tender consciences.' When we say this vote, we ought to do the other; but the committee would not agree to it: moves now for a committee to draw such a Bill, and that the Address may be re-committed. Mr. Crouch. The question is, Agree, or not, with the committee;' adding to the Address is but to distract things; and if you agree not with the committee, then it is irregular to debate adding. Mr. Garroway. It would have looked so like bargaining, if the committee had put it in, that they waved adding any thing to it. Sir Rd. Temple. The committee left out the addition, because they expected some previous vote from you. Though the manner was not concluded in your debate, yet every man agreed to the matter of the Declaration will it not be an abrupt Address to the king to find fault with the Declaration, and not say any way you would have the thing remedied in the matter? What difficulty do you put upon the king? Would it not be proper for you now to speak it, that you have it under consideration to provide for relief of dissenting brethren? Would have a vote passed, to take Dissenters into consideration, and have it put into your Address. Sir Tho. Lee would have you informed by the chairman of the committee, whether ever it was debated to have it part of your Address. Mr. Powle. No sense of your committee that it should be part of your Address. Mr. Vaughan denies that it was the sense of the committee: they thought it unparliamen tary to inform the king of any such thing, and they had no ground for it; for until you had voted the thing, they could add nothing to it. Sir Rob. Howard. You must first put the question of agreeing with the committee' before you can add any thing. Mr. Swynfin thinks you rightly moved by Littleton. Your sense was to go no farther than to secure the law, and preserve the true strength of the statute-law. Nay, farther, it seemed to all men's sense, that some consideration should be had of the indulgence; great reasons were given for the matter of it, as the war, trade, &c. as far as might be for the safety of religion; but the committee could not originally express it, having no authority from you, therefore no haste, it being to be sent to the lords: we have had so ill experience of those laws, that he hopes we shall consider them: if the kings of France and Col. Birch does not agree with those genSpain should draw their subjects to prison, tlemen. It is not parliamentary to add (if and persecute them, they could not preserve you intend it) after having voted the thing. unity sees nothing in the Declaration but The thing moved to be added, could not apyou may well dispense with, but the preser-pear to be true at the committee: would alvation of the laws. If you shall go so far as a law for the Declaration, it will be no difference, only the Declaration turned into a law, and so you have your end in it: moves to appoint a committee to prepare a Bill to that end, which cannot but appear well, both to king and people. : Sir Tho. Meres is one of those that think 'ease fit for tender consciences.' in the words of Breda Declaration, for union of the Protestant subjects;' but how shall we proceed? No committee can do it, that is numerous : three men of a committee better to draw a bill, than 12 upon the subject-matter of a vote: ways have the king thanked by Dissenters. The committee could not do it, the house having not voted the thing of Indulgence: desires it for the honour of the king, that you make a vote for taking the thing into consideration, and then vote your Address. It was then resolved, "That this house doth agree with the committee in the Petition and Address." Sir Tho. Meres. What will you do with this Address? The Address must go to the king, and it is usual to send to the king to know when he will command us to wait on him, by some of the lords of the council of our house. |