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
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
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
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
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
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
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
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
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
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
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
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.
(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
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
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
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
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
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.]