nion was damned under a penalty, though a standing maxim amongst lawyers. If so, this new Act of regency will be a warrant to what is proposed, as that was for the other. For my part, I have had the ill fortune to have the wind in my face; to be against the general opinion and stream of the world; and having had no share, for some time, in the government, I may speak my mind, possibly, more freely than they that have. It is a great crime to spy things too soon, which makes us apt to run from one extreme into another. I have proposed the best Expedient I can to preserve Religion, and quiet the minds of the people; but I am afraid, if we do nothing at all in this matter (I will grapple with neither of the Expedients) but if we do nothing, but let the thing lie loose, we shall gratify the Jesuits, on the one hand, by our confusion, and the Com him, if he attempts to regain the crown, or somebody else will; and this will raise such an anger in the duke's mind, that where will the people shelter themselves? Not under the duke's daughter; they must naturally shelter themselves by running into arms. Cromwell's way to support himself in his usurpation was an army of 60,000 men. And he did do it, especially when his army was flushed with victory. And an army that has got power will keep it. The nation is not in the condition it was formerly, when great lords cherished their tenants, and by good leases could presently raise an army, and when they had accomplished what they designed, send them home again. But we are now in another way; raise an army, and they will think of their own interest how to keep themselves up. But if it fall out to be thus, your Bill will leave this very loose. As soon as this Bill of Regency shall pass, sup-mon-wealth's men to shuffle again, on the pose the regency be established in the princess other hand; and if you go into some medium, of Orange, and in case of her decease without both these men will be undone. issue, or issue in minority, then the lady Anne, the duke's other daughter, to be regent, and in the same law, commissioners to be forthwith sent to the prince and princess of Orange to take their oaths, that they will take upon them the execution of this Act, and that their oaths be recorded; you then are not left in that loose manner you will be by the Bill of Exclusion; and it is a far less matter for the princess to save a family, before misfortune come upon it, than to take the government upon her afterwards, in the height of trouble and disorder, which may ensue upon the Bill of Exclusion. But it may be said, what needs all this? It is just nothing but retaining the name of a king, in an exiled man.' But it is less violation for her, to govern in her father's name, than to have the kingdom given her, from him. It may be wondered why, in Portugal, when the king was to be removed from the government, there was a great debate amongst the three estates of that kingdom, (though they hold not proportion as they do here,) the commons were for don Pedro to be king; the nobility were for having him regent only; the ecclesiastics demurred: But at last both the ecclesiastics and the commons came over to the nobility: but Don Pedro stuck here, and would still leave his brother the title of king: he would leave nothing of shelter to force nature too far. I find that there are reserves in the king's Speech, if it be well observed. Another thing may be objected, which is, paying a difference to the crown for the sacredness of it, for the government's sake; and that looks like something; and how can we be secure, when it is treason to take up arms against the king? But the duke is like to be 500 miles off; and how came that law to be made, that the king and parliament may dispose of the Succession of the crown? It was then an opinion amongst lawyers, that the crown was unalienable: but when that law was made, for the king and parliament to dispose of the Succession of the crown, that opi Sir Wm. Jones. I have heard with great attention this very able and learned gentleman, and am really of opinion that if any better Expedient could have been proposed, he, as soon as any gentleman, would have proposed it; but I am amazed that so learned a gentleman should not see through this Expedient. That which I take for the Expedient is, ‘That, should the duke come to the crown, he should retain the name only of king, and that the next heir, under the title of regent, or protector, should have the administration of the government." Who does he mean by next heir? For any thing I know, or believe, it may be the duke's daughter, but, it may be, the duke may have a son. Either I have a great cloud on my understanding, or this is very strange; if the duke shall have a son, and shall he at a day, a month, or a year old, be regent? Suppose the princess of Orange come over to be protector to this young regent, and she die, and leave a child (the prince of Orange has no right) that child must have a protector, and so there will be a protector of a protector. But we are told, That it is for nothing, but to keep up the greatness of the government, that makes them go from the Bill of excluding the duke to this Expedient.' But pray, is it so great and pleasing a thing to wear a crown, and have no authority nor power? Is it not much worse than to lose the actual crown and possession? But if this Expedient pass into a Bill, and the duke be banished 500 miles off, it must be out of England, and if the name of king will please him in civility, beyond sea he shall be king, and it is as much to his purpose beyond sea to be called king only, as here: and to tell us,' That the forfeiture of his estate upon his return will keep him there;' he that will venture the loss of a kingdom for his religion, will his estate too, and that is but a weak tye. It is less evil or injustice to take away from him both the crown and power than to leave him of both but the name. If you allow the duke the name of king, it will imply a right; therefore 6 had open war with Holland. The king of France made war with Holland for his glory, and our ministers, to get taxes from us to make the king absolute such violations, as never were done, upon the rights of the people !-He was called to order by : Mr. Vaughan. A question so extremely well spoken to as was the last, to be interrupted with any angry question, is not decent at this time. What the gentleman urges is a matter to be enquired into another time, though the gentleman, I believe, does it with a worthy intent. If any gentleman have any thing else to propose, of the matter now in debate, pray hear him. Mr. Leveson Gower goes on. I intended, from what I said, to move you to present the king with reasons to pass the Bill of Exclusion. The shameful retrenchments in the king's family arise from the duke's creatures; and it is not safe for the king to part with any one of his ministers, unless he parts with them all. These that retrench the king's family, do it to get together a bank of money for a Popish Successor, and then will be their time to take away the king. that to be used as an argument, is strange. But why is this contention, and all this ado, I wonder, for an empty name? But I am afraid this kind of Expedient is a kind of Jesuits powder. I do not think that Littleton's opinion or interest is for the Jesuits; but wise men may overdo things sometimes. But if you do not exclude the duke's title by law, the duke is king still, and then learned lawyers will tell you, that, by the 1st Hen. vii. all incapacity is done away by his being king. If you take not away the descent of the crown upon the duke, and the duke has a title to be king, then without doubt, all incapacities fail. But if this can be made effectual, I am as willing to exclude the duke's power as name; but lawyers will tell you it cannot be done. But there is a great difference betwixt the one and the other. When the lady comes to be regent, not only nature, but conscience, will bid her give unto Cæsar his due,' being not incapacitated to succeed, and perhaps that text some of our divines will preach upon. They will say, 'That the parliament, by what they have done, do acknowledge the duke to have a good titie.' But if he be king, as the parliament allows him to be, in name and right of descent, an argument like this in queen Mary's time had like to have restored to her the first-fruits and tenths. Another thing, perhaps, came from those men who first proposed the Expedient (I will not believe that it originally came from Littleton,) That if we had passed the Bill of Exclusion in the last parliament, it would not have been submitted to;' but if this Expedient pass into law, and the duke have a right to be king, and be kept from the administration of the government, I doubt whether I shall fight against him. The Papists will say, we have got a law to separate what is inseparable; and I would, were I as the duke, have such a Bill to perplex my opposers, rather than a clear one. Littleton tells us of an army to maintain the Ex-inherit a king may make this expedient law. clusion, and that that army will not soon be laid down.' But why an army? People will be sure that the lady will let her father in, if he have title; but will the people be sure of their religion, if he have title and power too? If there must be an army to maintain the Bill of Exclusion, there must be four armies to maintain the Expedient. There has been a protector proposed, &c. not like that of Edw. vi. who was little more than our lord president of the council: but certainly they who proposed this Expedient, intended the same power in the regent to let the duke in as to keep him out. Therefore pray lay aside this consideration, and take up that of the Bill. Mr. Leveson Gower. I think it fit that you should present Reasons to the king for passing this Bill for excluding the duke, I do think that the administration of the government has been in such hands, since the king came in, that, though the ministers have been shifted, yet the same principles of government remain to this day. The Triple League has been broken, and the Smyrna Fleet seized, before we Sir Tho. Meres. I have heard this expedient debated with patience. This expedient has been well offered, and, I believe, mistaken by the gentleman that answered it. I must say, this is your question; your business is religion, and I have given as good testimony of sincerity to the Protestant religion, these 20 years, as any man has; and I have been for this Bill of Exclusion, and I am of opinion, that something must be done for the people, to quiet their fears of Popery. But for the point of law mentioned; if the law be such, that dominion must run with the name of king, that single reason is to carry the debate; but if they answer not to that, I am at an end. But, sure, those words that can dis I would not rise now to speak, if I thought that At dient, I am answered. If any gentleman | Which is most practicable, the regency or could alter that Bill of Exclusion, that it may the exclusion? We lawyers are aptest to not be just the same as it was the last parliament, but have something of this expedient, I should like it; for this expedient is a Bill of Exclusion, and a strong one: if the duke were to chuse, he had rather have the first. I am for that nail that will drive, to do our business; and if gentlemen have other thoughts, pray so contrive it, that we may have one Bill or the other. Mr. Harbord. All the expedients that I have yet heard have been like a cucumber; dress it, and then throw it away. This proposition of the expedient is either honest, or not. If it be honest, and without design, then all the dispute betwixt the king and us is, Whether the duke shall have a title to the crown? and I hope the king will rather gratify the nation than his brother, who has attempted the ruin both of it and him. If it be not honest, people about the king have done it to circumvent him, and will find ways, from day to day, to divert him from the advice of his people. Why was England so fond of Calais, but to have some footsteps in France? And so the duke's creatures are fond of this expedient, that the duke may still have a title to the crown, though the government be placed in a regency; and then all those gentlemen who depend upon the duke, if he comes to the crown, will change their measures, and show you of what religion they are. 6 go on the strongest side, and to call every Sir Fr. Winnington. As to the question, concerning the Bill of Excluding the duke; that that bill is lawful in conscience, no man will oppose, and after the great opposition it met with in the lords house, yet they agreed it lawful. So that we are not doing what wise men think unjust, and what jure divino is not unlawful, concurrentibus iis qui concurrere debent. Some gentlemen have told you, That their countries have given them intimations to press this Bill of Exclusion:' and Littleton has told you, 'It is dangerous to take instructions from the country.' But I say it is more so to take it from the court. Parliaments formerly, upon any weighty affair, stayed, and sent their members down to consult their countries. 1 am not subjected to what my country does propose. I have my trust to serve them here as well as I can. It is alleged, That consulting our country is like the states of Holland.' I am as much against a republic as he that fears it most, and I say, I know Littleton to be a man of that great reason, that if he go away satisfied with this day's debate, he will do all he can to satisfy the king in the post he is in. But to keep close to the question: it being allowed by law, that there may be an excision of the duke from the government, the next thing is to consider the expedient proposed of the regency. The same authority that makes a descent from the crown may modify it, and Mr. Booth. I have it in command from this was argued, to show that the regency the county I have the honour to serve for would signify nothing in taking away the dig-(Cheshire), that they apprehend that no Expenity of monarchy. Now the question is, dient to preserve Religion, in case of a Popish 6 Successor, but makes the remedy worse than the disease, unless the Bill to exclude the duke from the Succession; and I have, as yet, beard no reason given by any man against it: but there is an aliquid latet. If the duke be not set aside, I am sure the government will be. Therefore I move for the Bill. Sir Tho. Meres. What Bill soever we have, pray let us have the law on our sides, that, if the king should die, we may know whither to go. I think the king's Speech is penned as it ought to be penned, and should the king speak positively to what laws he would have, we are an Irish parliament, and not an English. But the king's words are tender words, and the thing lies fairly before you. If any thing of Expedient can be thought of to save Religion under a Popish Successor, not to destroy the monarchy; and if the next Expedient be not the best, pray refuse not the next to that. Mr. Vaughan. You have had an Expedient offered of a Regency; pray consider what this Regency is. It is but the whole office of king, to place judges, constitute privy counsellors, call parliaments, make peace and war, &c. This they would take away, and reserve this empty name of king to the duke. This is perfectly to bring a war upon us, and for the duke to come in by conquest; and so farewell law, church, and all! The Regency must be supported by war, as well as the Bill of Exclusion. In 13th Eliz. the Crown could not be alienated but by king, lords, and commons, and then there was no successor named to keep king James in awe; and for the same reason, no Successor was named in the Bill of Exclusion the last parliament. Though we have been frighted by prorogations and dissolutions, it will not frighten them whose reasons go along with the Bill of Exclusion. I am for it because all men are for it, and have sent up the same parliament again; but if you lead the people into uncertainties, by such an Expedient as this of the Regency, both court and country will then be of a mind to lay aside parliaments, because they are become useless. Sir Hen. Capel. By these conspiracies of the Papists, people's eyes are now enlightened, and, all the world over, they are an informed people. The Papists care not who is king, if he be a Papist. In the last parliament it was said, [by Hyde], 'There was a loyal party would stick to the duke, notwithstanding the Bill of Exclusion.' We see France has fallen upon the Protestant party there. The emperor has mastered them in Hungary, and what has been done in Bohemia, they say, broke the Prince Elector's heart. An universal design against the Protestant party-[The rest of his Speech was mostly what he had said in the last parliament.] Col. Legge. I would not have spoken for the duty owe my master, the duke of York, but for my duty to my country; and I own my obligation to the king for being the duke's servant; and farther, I am a Protestant, and was never out of England; and for the VOL. IV. king's service my father bred me at sea. I know my own weakness in not having been bred to the law; but by enquiry I find, that the doctrine of deposing kings, and disposing of their kingdoms, is the damnable doctrine of the Church of Rome. In the 24th of Edw. iii. the king, I find, demanded advice of parliament in matters relating to the crown; the Answer of the whole parliament was, They could not advise any thing relating to the crown, nor of disinheriting him to whom they were sworn.' The fundamental and commonlaw of England has made the duke, as heir, to come to the crown, if the king have no sons. Hen. iv. came to the crown by parliament, but laid his claim to it by descent from Hen. iii. and so it continued to Hen. vi. and then the parliament declared, that those acts were not binding, but unjust and invalid, and so the right heir came in. Hen. viii. had power to dispose of the crown by his last will and testament; and though Jane Grey baited her title by Religion, yet right took place in the Succession; and since that, there has been an Act of Restitution in king James, as lawfully and justly the right and next heir to the crown; and to beseech the king to accept of their allegiance to him and his posterity. I think our ancestors were sworn to king James and his posterity, as well as we. It is a great happiness that the two lines of York and Lancaster are united, which has spent so much noble and royal blood in the barons wars. an attempt of turning the government into a republic; and who knows but that, if we put by the right of the duke to succeed, that may he attempted again; and the crown revenue being much upon the people's gift, it may the more easily turn us into a republic. In the late times, when my father was in prison, an eminent person then in power, discoursing with him, said, I have obliged you, and when the king comes in (as I believe he will do, first or last) pray be my friend, and think of what I say; when the king's party shall be again in the saddle, if once you divide amongst yourselves, farewel monarchy for ever! If by a law you keep out the duke, what must follow? An Act of Association. I speak now for England and for my posterity, (I have seven children.) How will this look? The king's father was murdered, and you take his brother from him. Sure this can take no effect with the king, and the lords, to make it a law. I wish the duke many happy days, but, from my heart, I wish the king more than the duke. The king is a healthy man, and the duke is not. What I have said is not as I am the duke's servant, barely out of pique of honour, but that I would not do any thing to destroy my posterity. We have had Col. Birch. This is the day of England's distress, and not only of England, but upon this day's resolve depends the good fate of the Protestant religion all the world over. Except we expect a miracle from Heaven, nothing else can save the Protestant religion. I think, I 4 Q ་ said this many years ago, That Popish Matches | all that execute the Militia; and if that be a would bring in Popery at last.' But as to true proposition, why must it be destroyed by what is said to point of law, That the law this Expedient now? The thing lies loose to will be interpreted according to the strength me. Methinks, this Expedient of the Regency that maintains it;' I doubt not but if you do seems to me as if a man that sat by the fire your endeavours, this great matter in debate and burnt his shins, instead of removing himmay be settled; but if we have nothing left self farther off, should send for a mason to rebut prayers and tears to help us, we are in a move the chimney back farther from him. I miserable condition. All government begins have heard, that, if a man make a freehold either by conquest or compact; but it is in- lease to commence from the date thereof, it terest that must defend this Bill of Exclusion, is void. It would be far more ingenuous for and not an army. We are the army. I have gentlemen to say, That if you do pass the Bill a family as well as others; and as for setting of Exclusion, they will not be bound by it, but up idolatry, rather than my children should will have the duke to succeed;' and then I wish breathe in such an air, I had rather they were they would tell us what will save the Protesburied. All the mischiefs in the world that tant religion. If the duke do come in, will may ensue upon this Bill of Exclusion have gentlemen chuse either to turn Papists, or to been ingenuously offered you by Legge; but be burnt or hanged? If this proposition if you quit this bill, pray sit down and take up would keep out popery, I would accept of it. a Popish Successor, and renounce the Protes- I have no disrespect to the duke; but if I am tant religion. I would break this popish in- to leap over a river, I had better have no staff terest, and it will be our interest to maintain than a broken one; and this Expedient is no this bill. If once this bill pass, and, as in security. If it must be in the power of the queen Eliz.'s time, Protestants are put into council and the regent to dispose of the public places of trust, you may be sure of the good treasury, to make war and peace, pray where effects of your bill. Where 10 were of the is the government? Where is the monarchy? mind for this Bill a twelve-month ago, there Either they will be faithful and keep this law of are an 100 now that will bleed for it. In plain regency, and the duke shall be king but by English, let us show the world that the Pro- name, and so take away the soul of the gotestant religion is dear to us, and that we have vernment, or they will let the duke in to govera the law on our sides to maintain it. as king. Sir Tho. Littleton. I was mistaken by some gentlemen, therefore I desire to be rectified. I shall be very short, and tender of you, having sat long. It is objected the uncertainty this Expedient will lie under, if the duke have a son;' which is thus answered; That then the princesses respectively shall succeed in the regency; which obviates an incurable absurdity in the former Bill of Exclusion. For if the duke have a son, the lady cannot descend from the throne. This Bill of Exclusion is so weak a thing, that it will require all the props imaginable to support it; and a train of consequences will follow. What you have been told of Scotland is worthy your consideration: if Scotland is not consenting, I know not how you will obviate that; I fear it may unite the Papists of England and France. Mr. Boscawen. Littleton may be convinced of the weakness of the Expedient by his own argument. For by so much the easier it is for the princess to descend from the Regency, so much the less is our security. And as for the objection of Scotland, the same interest which passes the Bill of Exclusion here, will do it in Scotland; and for Ireland there is no need of it. By the proposition of the Expedient, all commissions for sea, land, and the church must go from the regent in the duke's name; and if all dispatches, &c. must go under his name, there will be still no security, for the oaths of allegiance and supremacy must be taken to the duke; and if that be not a true proposition, That we are not to take up arms against the king, nor those commissioned by him,' I know not why it was by law obliged to be taken by The debate thus ended, and this Vote passed, viz. "The house having taken into solemn debate and consideration, the means for the Security of the Protestant Religion, and for Safety of the King's Person, doth resolve, That a Bill be brought in to exclude James duke of York from inheriting the Imperial crowns of England and Ireland, and the dominions and territories thereunto belonging; and that a committee be appointed to draw up the said Bill." A gentleman moved, That this Bill might also exclude all other Popish Successors.' To which Mr. Hampden answered, He believed the gentleman made the motion with a good intent; but this is a Bill for the purpose only of the duke's Exclusion, and that for all other Popish Successors may be done in another Bill hereafter; for the way to lose a Bill is to clog it with too many things. Debate on the Lords refusing to proceed upon Fitzharris's Impeachment.] March 26. p. m. The commons were informed, That the lords had refused to proceed upon the impeachment of the commons against Edw. Fitzharris; and had directed, That he should be proceeded against at the common law."* "The Commons' Impeachment against Fitzharris was rejected by the lords upon pretence with which the lord Nottingham for nished them. It was this: Edw. iii. had got some commoners, the six murderers of Edward ii. to be condemned by the lords, of which when the commons complained, an Order was made, |