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of March a Bill was brought into the house of the parliament summoned 23 R. 2. the parlialords, For declaring the Acts of the late parliament held 1 Henry 6, and the parliament held ment to be of full force and effect by the laws 28 Henry 6. the acts of which parliaments have of this realm, and for recognizing their now been held for law. 2. Because the rejecting majesties king William and queen Mary to be, this Clause must necessarily disturb the minds by the laws of the realm, our rightful and law of the greatest part of the kingdom, for if those ful liege lord and lady king and queen of these be not good laws, all commissioners, assessors, realms. This day a report was made from the collectors and receivers of the late taxes, are Committee to the whole house of the Amend- not only subject to private actions, but to be ments upon the said Bill, viz. In the second criminally prosecuted for one of the highest sheet in the first line, after declared' they offences against the constitution of the English have added adjudged,' and in the twelfth line government, viz. the levying Money on the they have left out the word adjudged' and subject without lawful authority; all persons they desired the concurrence of the house who have lent money, upon the credit of those therein.-Then the question was put, Whether laws, will be in dread of their security, and imthis house agrees with the committee in this re- patient to get in their money; all persons conport? It was resolved in the negative, Contents cerned in levying the present taxes will be fear30. Not content 36. ful to proceed; all persons who have accepted any offices or employments ecclesiastical, civil or military, will be under the apprehension of having incurred all the terrible forfeitures and disabilities of the Act of 25 Ch. 2. c. 2. and all who have any way concurred to the condemnation or 1. "Because there appears to us no reason execution of any person upon any act of the late to doubt of the validity of the last parliament, parliament, will think themselves in danger of the great objection insisted upon being the being called to an account for murder. 3. Bewant of writs of summons, which we take to cause to leave a doubt touching the validity of be fully answered by the state the nation was the last parliament, is to shake all the judgin at that time, which made that form impossi- ments and decrees given in the house of peers, ble, such exigencies of affairs having been al- or in Westminster-Hall, during this reign; and ways looked upon by our ancestors (however to bring a question upon the whole course of careful of parliamentary forms) to be a suffici-judicial proceedings. 4. Because if the authoent reason to allow the authority of parliament, notwithstanding the same, or other defects in point of form; as the parliament which set Henry 1. and king Stephen on the throne; the parliament held 28 Edw. 1, the parliament summoned by the prince of Wales 20 Edw. 2.

Protests thereon.] Leave having been given to any lords to enter their Dissents, if the question was carried in the negative, we whose names are hereafter written do enter our Dissents for these Reasons following:

and warm debate. The Tories offered to enact, that these should be all good laws for the time to come, but opposed the doing it in the declaratory way. They said, that it was one of the fundamentals of our constitution, that no assembly could be called a parliament unless it was called and chosen upon the king's writ. On the other hand it was said, that whatsoever tended to the calling the authority of that parliament in question, tended likewise to the weakening of the present government, and brought the king's title into question. That a real necessity, upon such extraordinary occasions, must supersede forms of law; otherwise the present government was under the same nullity. That forms were only rules for peaceable times; but in such a juncture, when all that had a right to come, either in person, or by their representatives, were summoned and freely elected; and when, by the king's consent, the Convention was turned into a parliament, the essentials, both with relation to the king and people, were still maintained in the constitution of that parliament. After a long debate the act passed in the house of lords with this temper, declaring and enacting that the acts of the ConventionParliament were and are good and valid." Tindal.

rity of the last parliament be not put out of the question, the authority of the present parliament can never be defended, for the statute of 5 Eliz. c. 1. makes the election of every member of the house of commons absolutely void, if he enters into the house without taking the Oath of Supremacy, which no one person having done, there is an end of this house of commons: and by the statute made 30 Car. 2. if any peer or member of the house of commons presume to sit and vote without first taking the Oaths of Allegiance and Supremacy, before the Speaker of the respective houses, he does not only forfeit 500l. and become a Popish Recusant, and disabled to take a legacy, to hold any office or place of trust, to prosecute any suit, to be a guardian, executor or administrator, but is made for ever incapable to sit and vote in either house of parliament; and consequently this can be no parliament, nor any who have sat in either house be capable of sitting in parliament hereafter. 5. Because to leave room to doubt of the authority of the last parliament, is to shake the Succession of the crown established by it, and the credit and au thority of all Treaties made with foreign princes and states by king William, as the undoubted king of these realms; so that if the last was no parliament, and their acts no law, this is our case: The nation is engaged in a war without the consent of parliament, the old Oaths of Supremacy and Allegiance remain in force, and the nation forced under colour of law, to swear fidelity to king William, though they can never act as a lawful parliament without taking the

Oaths of Allegiance to king James: All judg-| ments and decrees in the house of lords, during the fate parliament, are of no force; great sums of money have been levied, without consent of parliament, and men have been put to death, not only without, but against law; which is the worst sort of murder: Lastly, the king upon the throne, the peerage of England, and the commons freely elected by the people, have been parties to all this: the peers and commons now assembled are under a perpetual disability, and the nation is involved in endless doubts and confusions, without any legal settlement or possibility to arrive at it, unless a parliament be summoned by king James's writ, and the Oaths of Allegiance taken to him. (Signed) Bolton, Macclesfield, Stamford, Newport, Bedford, Herbert, Suffolk, Monmouth, Delamer, Oxford."

Protestation. 3. Because the Protestation was not against the whole Bill, but some particular words of it; but by expunging the Reasons of that Protestation, it appears that we have protested against the whole Bill, which is contrary to our sense and intentions. (Signed) Nottingham, J. Jermyn, H. London, Tho. Menev', Ed. Wigorn', P. Winchester, Hum. Bangor, Westmoreland, Chandos, Abingdon,W.Asaph." Debate on reversing the Judgment in a Quo Warrantoagainst the City of London.*] April 8.

"The violence and injustice with which the election of Sheriffs (in 1682) was carried by the court, shewed that they were resolved, by fair or foul means, to have the government of the city in their own hands. But, because they would not be at this trouble, nor run this hazard every year, it was resolved, that the Charter of the City must either be given up, or be adjudged to the king. The former was much the easier

April 8. The Bill was read a third time, and the question was put, Whether this Bill shall pass? It was resolved in the affirmative. Be-way; so great pains were taken to manage the fore the question was put, several lords desired leave to enter their Dissents, if the question was carried in the affirmative. "1. Because we conceive, that saying, 'It is enacted by the authority of the present parliament, that all and singular the acts made in the last parliament were laws,' is neither good English nor good sense. 2. If it were good sense to enact for the time past, it must be understood, on this subject, to be the declaring of laws to be good which were passed in a parliament not called by writin due form of law, which is destructive of the legal constitution of this monarchy, and may be of evil and pernicious consequence to our present government under this king and queen. (Signed) Somerset, Rochester, J. Jermyn, Westmoreland, H. London, W. Landaffe, Huntingdon, Abingdon, Tho. Menev', Feversham, P. Winchester, W. Asaph, Scarsdale, Weymouth, Dartmouth, Nottingham, Wigorn." April 10. The Reasons in the Protestation made the 8th instant against some words in the said Bill being read, were, upon the question, severally ordered to be expunged out of the Journal. Leave having been asked and given for entering Dissents, if the questions were carried in the affirmative:

"Dissentient, Whereas the questions for expunging the Reasons of our Protestation April the 8th, were carried in the affirmative; and whereas these Reasons were only against some words in one clause in the Bill entitled, An act, &c.-And leave being given to enter our Dissents to those Reasons, we do so accordingly for these Reasons:-1. Because it is the privilege of the peers to enter their Dissent, and it has been the antient practice to enter also the reasons of such dissent, of which the lords, that so protest, are the most proper judges, as well knowing what arguments persuaded them to be of that opinion; and no reasons can be more proper than such as they conceive are founded upon matter of fact and the law of the land. 2. Because there is no other precedent of expunging the reasons of any VOL. V.

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next election of the Common Council, so as that they might be tractable in this point. But after all the practices of the court, in the returns of the Common Council of the City, they could not bring it near an equality for delivering up their Charter. The court, finding that the city could not be wrought on to surrender their Charter, resolved to have it condemned, by a judgment in the King's-bench. Jones had died in May; so now Pollexfen and Treby were chiefly relied on by the city in this matter. Sawyer was the attorney general, a dull hot man, and he undertook, by the advice of Saunders, a learned but a very immoral man, to overthrow the Charter. The two points upon which they rested the cause were, That the Common Council had petitioned the king, upon a prorogation of parliament, that it might meet on the day to which it was prorogued, and had taxed the prorogation as that which had occasioned a delay of justice.' This was construed to be the raising sedition, and the possessing the people with an ill opinion of the king and his go vernment. The other point was, That the City had imposed new taxes on their wharfs and markets; which was an invasion of the liberty of the subject, and contrary to law.'-After long pleadings, on both sides, when the matter was brought near Judgment, Saunders, who had laid the whole thing, was made chief justice; Pemberton, who was not satisfied in the point, being removed to the Common Pleas, upon North's advancement. Dolben, a judge of the King'sbench, was found not to be clear; so he was turned out, and Wythens came in his room. When Sentence was to be given, Saunders was struck with an apoplexy; so he could not come into court; but he sent his Judgment in writing, and died a few days after. The Sentence, which was given without the solemnity that was usual on great occasions, was, 'That a city might forfeit its Charter; that the malversations of the Common Council were the acts of the whole city; and that the two points set forth in the pleadings were just grounds for the forfeiting

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Sir Edw. Seymour. You have been moved by the members for London to reverse what is not, and to restore what they have. I apprehend, you ought to remove a doubt first, what are their privileges, and not leave it to the judgment of this or that learned serjeant: trace it to its original. I have heard no man say, that the crown has not a right to a Quo Warranto. | If so, there may be Judgments, and not to be reversed but by a superior power. What signifies any man's telling you it is no Judginent; and therefore there is no room to scruple whether reverse, or no? If you reverse it, then leave them in the same right they had before. They have acted by another power, by a commission; I will not say, whether legal or no; but you are told by an honourable person (Hampden)That something has been done by the city of London, which he does not approve.' If both old and new were put out, and better put in, it would be more for their advantage.

Mr. Hampden. I did say, 'That some things had been done in the city of London, which I could wish had not been done.' I do not like every thing that has been done in the city; but I would be repeated when things are fresh in memory.

Mr. Solicitor Somers. A void judgment may be given, as well as an erroneous judgment. I will never give my consent to countenance such illegal and cursed judgments, to bring in Popery and arbitrary power,

Sir Tho. Lee. I am for the first part of the question, because I would have it sufficiently damned. I would have the Judgment reversed and voided from the beginning, and so understood and expressed too; else it will be from the first day of the parliament only. I shall never give countenance to any, to thrust themselves into offices to pack juries. They may crowd in the water-bailiffs, and markets, if you divide not the question.

Sir Edw. Seymour. I presume, no man doubts but that Hampden can form a question [reflecting] to the advantage of the thing he proposes; we have every day's experience of I did not expect to have had this question

it.

of a Charter. Upon which premises, the proper conclusion seemed to be, That therefore the city of London had forfeited their Charter:' but the consequences of that were so much apprehended, that they did not think fit to venture on it: so they judged, That the king might seize the liberties of the city.' Upon this, the king sent a new Message to the city of London, requiring the Common Council to deliver up their Charter, threatening them, that, otherwise, he would order the Judgment to be entered; and, upon their refusal, the Judgment was entered, and the king seized on their liberties. Many of the aldermen, and other officers, were turned out, and others were put in their places. So they continued, for some time, a city without a Charter, or a Common Council; and the king named the magistrates." Burnet.

so laboured; truly, I did not. I love not artifices without doors; but I hear of a Bill already framed by members of the city, (not your members to be trusted with it,) to make the city a Commonwealth; and, Ordered by the Common-Council, ‘That in case their own members shall not move the parliament, then the mayor and aldermen to deliver it to others; and the Bill prepared by their committee shall be presented; and if not, some other members of parliament are to do it.' Thus you see what work is cut out for you, that even in the work they have cut out they dare not trust their own members. The Bill makes the city independent from monarchy. I have not seen the bill; but those that have, inform me of this; and it is shrewdly to be suspected, when they dare not trust their own members.

Sir John Lowther. I hope this house will not be prevailed upon to have an ill opinion of the city, upon common hearsays. If ever such a Bill be brought in, I believe it will be thrown out with indignation. I hope never to see a common-wealth established here.

Mr. Powle, Master of the Rolls. You are engaged in a dispute on the words of the ques

tion.

I take it to be a ground, that this Judgment against the city Charter be declared void. If a court give a judgment illegal and erroneous, it is good till it be reversed; but when the court has no jurisdiction, it is void in itself: I take it with that distinction. I take this to be a void judgment, and that the court had no jurisdiction, because it intrenches upon the jurisdiction of this house. The judgment was a dissolving and annihilating the corporation of London. Those bodies dissolved, of what shall this house consist? Dissolve old ones, and send new ones, as you please-If it be admitted, that this judgment was ever good, it shall bind as long as it is not reversed. This strikes at the root and foundation of the government; therefore we can do no better than declare, that the court had no jurisdiction. The words, To restore the rights and privileges, &c.' carry as much force as ' reversed;" which pre-supposes, that the Judgment had some validity, as being from a legal court.

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Resolved, "That leave be given to bring in a Bill to reverse the Judgment in a Quo War ranto against the city of London, as arbitrary and illegal; and thereby to restore the city of London to its ancient privileges."

Debate in the Commons, on the Recognition Bill.] April 9. An ingrossed Bill, from the lords, for recognizing king William and queen Mary, and for avoiding all questions touching the Acts made in the parliament assembled at Westminster the 13th of Feb. 1688, was read the second time.

Lord Falkland. I am as much for the interest of this Bill as any body, but not for so hasty proceeding as is moved, to read it a third time now. There have been great debates in the lords house about this bill: statutes and laws are mentioned in it. I would have

them read. When that is done, I would go into a committee of the whole house.

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Sir Tho. Clarges. I would observe the same words you did in the Abdication, when you did present the Address to the king and queen, to take the crown and dignity upon them; and I do concur and consent, that they are so by the laws of the land, consonant to all laws practised in this nation; but that they were,' andare.' Were' they before they were in being?' I think it worth the consideration of this house-The nearest to this was the Convention, 12 Charles 2. An act was for confirming those acts, with this Clause, That, nevertheless, the king might prorogue that parliament, for, if the people may assemble a parliament, the king cannot dissolve it; therefore that clause was put in, that the king might prorogue it, &c. We sit not here from the last Convention, but by oaths framed from the original contract, by which the king and queen took the government upon them. Here are acts for Money; I care not how soon they are confirmed, nor that of Ease to Dissenters. I would give them all the authority that may be; but I cannot declare, That they are and were king and queen, &c.' Therefore I move, that you will go into a committee..

Sir Henry Goodrick. Until an objection be made against the Bill, you are not to go into a committee; but when we come to a point to consider that objection, that of the Recognition is the first part. It is agreed by all, that we are bound in conscience to recognize the king and queen. The next, why those laws made, are not laws? That they were' andare,' must be taken from Feb. 25. If that be matter of dispute, it will involve us in great hardships. What are the laws that men cannot come up to? The Act for Money, or the Act for Ease to tender consciences? Is it for those bishops that will not come up to the government, and take the oaths? If you vary that, or make that a scruple, whither will you launch? If you make a doubt of what you have done, if they were good laws, and not good laws, where will that distinction end? If any thing in the Bill struck at the fundamentals of the government, you might debate it. We ought all to lay hands to the government: it is not the noise in the lords house that should weigh with us, but we should think of the preservation of the government, and our own safeties; which cannot be without this bill.

Sir Tho. Clarges. I did not except against the particulars of the Bill: I can come up to confirming all the laws; but, I think, to say, they were' andare,' not proper for a bill.

Mr. Palmes. Gentlemen that have made objections, I think, have not begun at the right end. You recognize, that the king and queen were' and are,' &c. Will you have it in those general words? 1 would have it qualified from the time, some time limited.

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Sir John Lowther. Perhaps I am one of those that wish this bill had never been brought in. I am satisfied with what the last parlia

ment did I acquiesce in their authority, as the whole nation has done. I hope none will call the right of the king and queen in question. As here, so elsewhere, disputes ought to be avoided. I never knew, but distinctious occasioned disputes. I think 'were' and ' are,' must relate to the time the king and queen received their royal sanction, and were king and queen from the time they accepted the crown. The last parliament had power to alter the old laws, and substituted new oaths instead of the old. This being so, I cannot imagine that this should be a dispute. We have the consent of the people to remove all disputes and difficulties. In the 1st of Henry 4, there were laws enacted, and in force to this day, though they had not all the formalities of laws. I move that you will not go to particular distinctions. The words are plain, and all would submit to the true intent of the bill, and I move for a third reading to-morrow.

Sir Robert Sawyer. For the reason given, I am for committing the bill. I did recognize the king and queen, and for ever shall do so. But as for such general laws as this-The council of Trent made canons that every one might make his construction of--It ought to have some words of reference. The law of conquest is the law of all nations. First, these are the words of the Crown's Settlement, and then of Recognition, though those are the same words. Interest vested in the king and queen' are legal words, and therefore I would have it in such words as are limited by that act. The Judges must judge according to the laws of the land. If you make no linitation of the crown, it is in the king for ever; it is therefore proper and fit; and, I believe, no man, that has taken the oaths, but acknowledges the government, and I would have it ju the words of the late Act of Rights.

Mr. Harcourt. I have some doubt that these words may destroy those in the Bill of Rights. I have ever thought the monarchy hereditary; and by this, what becomes of your entail? I am not satisfied that those of 1660 were acts of parliament; they needed confirmation. These are my doubts, that at present I am under. I second the motion for commitment of the bill.

Sir Tho. Littleton. I am for reading the bill to-morrow, notwithstanding what I have heard to the contrary, plainly, that we may be satisfied, that the last parliament was a legal one; and I stand by it, and declare it so. I am not for confirmation of it, for that strongly implies that it was not so before. If you express it no farther than the act mentioned, you raise a doubt whether that was an act or no. I would not raise more scruples than necessary. Sir Joseph Tredenham. Without taking the Tests in the act, no man can sit here. The word excepted against is, were.' I say again, that nothing ever was, but what had a beginning. I speak of sublunary, things. I should be loth to give occasion in the next age, to be still in doubt by an ambiguous word. I am

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Mr. Hampden. You have had several motions to go into a committee grounded regularly upon exceptions, or pretended exceptions. The first question is, Whether the bill shall be committed, or not? The next, Whether it shall be read a third time? I see, all gentlemen in tend the bill should take effect, except one, that questions, whether those were acts, or no, in the last parliament. I cannot comprehend how this is against grammar, Were and are king and queen of England;' where is the hurt, when they were before the last parliament ? Will you say that those, before this parliament met, were not laws from the time that the parliament met, unless they were excepted in another act to the contrary? I say, they were laws, and if it pass, as moved, a great many distinctions must be in this act. I see not what reason there is for committing it. It may occasion great debates. All you agree is, that they have been' so, as well as are so.' If you go into a committee, time will be spent, and if the king resolves to go into Ireland, before this bill pass, and leave it upon the table, I should be very loth to leave things so.

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Mr. Comptroller Wharton. If we sit to hear all the objections that lawyers will make, we may sit till king James comes in again. You do not stand by your government, if you declare it not as in the bill, and if your last laws were none, you are no parliament, and it is no government.

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possible for you to give it. The validity of what they did, depends upon the validity of this parliament; and if so, it is impossible that should ever be a parliament, and this none. Queen Elizabeth enacted the members taking the Oaths of Supremacy and Allegiance, otherwise their election should be void;' then I am sure there is an end of this parliament, for we have not taken the oaths of Allegiance and Supremacy, and incapable of ever being a member of either house;' so this puts an end to both houses of parliament. In the Convention of 1660, there was a king in being, and the next parliament was legally called by writs. This parliament depends entirely on the foundation of the last, and if they want a confirmation, neither this, nor the last parliament, can confirm it. It is said by Sawyer, conquest is a law.' It is the first time I ever heard it. I have heard that conquest supersedes all laws. It is said, 'To the time of the landing of the prince of Orange, according to the laws and statutes, they are king and queen.” Does not the Act of Settlement declare it? And you may very well refer to that law, when they had their royal sanction; I think there is nothing against the reason of the thing.

Sir Wm. Pulteney. I hope we all agree that they are king and queen; if we do not, we are forsworn. The only thing that sticks with me, is, I do not think that you intend that that Act about the Succession should be left any way uncertain, that what we all mean should be clear. Why then should it not be declared, That they are king and queen, according to the Bill of Succession?'

Sir Christ. Musgrave. It is no reason against the commitment, Because it may oc- Sir Tho. Lee. It is the natural question, casion debate;' it is the natural reason for when exceptions are taken to a bill, to have it commitment, and for that reason it ought to committed, and of bad consequence if any be. I would not only have it clear to my own other question be put. I will trouble you now, understanding, but to those without doors. I only to offer an expedient how the matter may see no reason why these words were' and be solved, and the bill not committed. There " are,' should be in the bill. I should be un- is nothing of worse consequence, than to exwilling to leave it to Westminster-Hall, to ex-plain what right we sit here by, or upon what plain it. I know not what the lords mean by were' and are.' I am for explaining it. It is far from my thoughts not to have the laws of the last parliament confirmed. By the same reason, they may question how you came to be a parliament. We ought to make it so clear, as without doors to make a reasonable answer to a question. Says a gentleman, I would not explain it, because it may occasion debate at a Committee;' and for that reason I would commit it.

Mr. Solicitor Somers. I have observed the objections as well as I can. If there be no weight in them, there is no reason that the Bill should be committed. It is said, enacting that they were laws, seems not a proper expression. In legislative capacity, enacting' is declaring it was.' It is said, by a person, That he agreed to the first part, because agreeable to the Bill of Rights." You are told by a gentleman, That he is willing to confirm all the last parliament did.' If the laws of the last parliament want confirmation, it is im

government we stand, lest we should make farther limitation of the crown than we have done. Possibly a rider, to declare nothing_in this act against the Bill of Rights, &c. For that reason I am against committing it.

Sir Christ. Musgrave. I second the motion for a rider, and you may soon order it to be drawn to the effect moved by Lee.

Mr. Hampden. As for the expedient offered by my countryman, Lee, I gave no encouragement to it. I neither did oppose it, nor approve it. It tends to the great prejudice of the crown. Such a motion for a rider is irregular. A rider is proper to be added to an ingrossed bill, but not against so great and substantial a clause of the bill as is opened.

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Mr. Godolphin. It is dangerous to recog nize the government upon such terms as to endanger the government. Some may interpret, From the king's landing, &c.' some conquest.

I would have it in plain words, that every one may understand; and it might be mended in three words. Be,' and' be reputed,' looks

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