Sir John Birkenhead. If you tie up the hands of the lord chancellor, how will you be supplied with members when you come to sit? Sir John Knight. The king's prerogative is not judged at all, by annulling these writs: you are to take notice of the thing; and therefore moves that these writs may be suspended. Sir Tho. Littleton. Though some writs were not issued out, it was for want of notice; though the threshold, and his first use of the Seal was for a trick, which, as tricks use, ended in disappointment and shame. There had been a long vacancy of parliament, in which interval divers members of the house of commons were dead, and some taken into the nobility. His lordship had a mind to fill these vacancies, especially such as were in the county of Dorset in;' that, in the midst of war and misery, which rages in our neighbour countries, our garners are full, and there is no complaining in our streets; and a man can hardly know there is a war: let us bless God, that hath given this king signally the hearts of his people, and most particularly of this parliament, who, in their affection and loyalty to their prince have exceeded all their predecessors; a parliament with whom the king hath many years lived with all the caresses of a happy marriage. Has the king had a concern? You have wedded it. Has his maj. wanted Supplies? You have readily, chearfully, and fully provided for them. You have relied upon the wisdom and conduct of his maj. in all his affairs, so that you have never attempted to exceed your bounds, or to impose upon him: whilst the king on the other hand, hath made your counsels the foundations of all his proceedings; and hath been so ten-(where his own estate and interest lay) with der of you, that he hath upon his own revenue and credit endeavoured to support even foreign wars, that he might be least uneasy to you, or burthensome to his people. And let me say, That though this marriage be according to Moses' law, where the husband can give a bill of divorce, put her away, and take another, yet I can assure you, it is as impossible for the king to part with this parliament, as it is for you to depart from that loyalty, affection, and dutiful behaviour, you have hitherto shewed towards him.-Let us bless the king, for taking away all our Fears and leaving no room for Jealousies; for those assurances and promises he hath made us. Let us bless God and the king, that our Religion is safe; that the Church of England is the care of our prince; that Parliaments are safe; that our Properties and Liberties are safe. What more hath a good Englishman to ask, but that this king may long reign; and that this Triple Alliance of king, parliament and people, may never be dissolved." The King's second Speech.] After this, his majesty spake to this effect: "One thing I forgot to mention to you, which happened during this prorogation: I did give order that some writs might issue out, for the election of members instead of those that are dead, to the end the house might be full at their meeting; and I am mistaken if this be not done according to former precedents: but I desire you that you fall not to any other business till you have examined that particular; and I doubt not but precedents will justify what is done. I am as careful of all your privileges as of my own prerogative." Debate on the Lord Chancellor's issuing Writs and making Elections and Returns, without Order or Warrant from the House.] Feb. 6. The house of commons went into a debate on the matter of issuing Writs, and making Elections and Returns, without Order or Warrant from the house, by the Lord Chancellor, the parliament not sitting. "The new Lord Chancellor blundered at creatures of his own. But there be had been formerly opposed by the noble col. Strangways, one of a mighty estate and interest in the west, and, (which was worst of all) an inexpugnable loyalist; who, for his eminent fidelity, was afterwards called to serve the king as a privy counsellor. His lordship thought that now, having power, he might manage the matter so as to get the better of him. And, for that end, he caused the writs, for the new elections, to issue, without staying for the meeting of the parliament and having the Speaker's Warrant, as the use, especially, of late, hath been: for that had given notice of the elections: but so his lordship's men, having the carriage of the writ, and, dodging with it, by surprise, (as was said) carried all against the interest of the loyal colonel, which put him into a great rage. This device was no sooner communicated and understood by the western gentlemen, with the colonel's sentiment of it, but they all determined to join, and get all these elections set aside; and, with that resolution, they came up, and the noble colonel at the head of them. At the first meeting of the house, when the usual forms were over, a member stood up, and looking about, said he observed divers new faces in the house, and did not remember that, before their last` rising, the house had been moved for the filling of so many places; so he doubted the regularity of the sitting of those persons, and moved their titles might be examined. Another member, seconding, said he supposed those gentlemen would have the modesty to withdraw, whilst their case was in debate, and not attend the order of the house. So this whole set of new elects, (although mostly loyalists) filed out, and came in no more upon that choice. For, although it was shewed such writs had formerly issued during such prorogations, enough to have served the turn in causa favorabili, yet the late practice being otherwise, and the current strong that way, and the court party not able to hinder, all the elections, on that foot, were voted null, and new writs ordered to go." North's Examen. p. 56. it happened now, it is not possible to be so again. It is confessed, on all hands, that no members were chosen so since the Long Parliament; there are precedents before; there are many precedents that the chancellor did issue out writs. Mr. Secretary Coventry. Conveniency, or inconveniency, is not the question, but right; whether the chancellor has done legally or not-divers precedents even to the Long Parliament: Moves that the several opinions do lay their precedents on the board; if it be with law, we must have a law to take away the inconveniency. Col. Strangways. Has not had time to search precedents, but here is an usage for many years. It is strange, that, the same week of attendance, the,writs should be sent out; both right and crown must subsist together we are in possession of the thing, and would have gentlemen take the same care that are against it, on one side, as well as the other; let the thing be done clearly. Mr. Cheney. Mr. Attorney said, "That the chancellor had precedents, and he would have a committee to examine those precedents. Mr. Attorney Finch. Will any man think that this is an universal proposition, that either warrant from the Speaker, or writs from the Chancellor, is an error? Notification from the Speaker to the chancellor is the course if a vacancy be: If there be sent to supply the places of sick persons, or beyond the sea, you may question them: If in prorogation, for a member that is dead, that sat here by a questionable election, that writ is questionable; but sitting by unquestionable right, this writ is not only lawful, but expedient. There never was any age, wherein members were questioned for default of a lord steward [to give the oath of allegiance and supremacy, &c.] persons elected in queen Eliz. by the chancellor's writ, came not in, but when sworn by the lord steward Lincoln, who was absent, admitted. The 7th of James is an authority both ways. No less than 34 now dead, and as many chosen during vacation of parliament. The writs were issued out by lord Ellesmere; some were cases of barons removed, and persons dead, &c. and then voted where members are dead in prorogation, and no contrary usage after, and writs then went out. But six parliaments since king James's time, and will the precedents of six parliaments question those of sixty parliaments? No precedents in 1618 to the contrary. There was a writ in prorogation for Hertford, but not executed. When the parliament met, sir Rd. Wynne kept it in his pocket. A supersedeas may be before, but not after, the execution of the writ; if not executed, no injury done to the borough, or member. Though there was a then supersedeas (Hertford,) yet here we have persons chosen in the room of such whose elections were never questioned. It would be wonderfully hard now to declare a new privilege that was practised before. These privileges, thus introduced, are particular respects to this great assembly, that signification might come to the Speaker. It is a necessity to the public that things might not be carried in a thin house: a peer may knock at the door, and call for his writ to the chancellor. In privilege-time we ought not to be at the chancellor's pleasure, to send or not send, out writs. If use be made of the ceremony beyond the civil intention, it is burdensome: your displeasure is too great for any man to bear: If any ingredient of displeasure be in your vote, it will lessen the authority of the vote: If precedents in the thing be disputable, would have a committee to inspect and report in time certain, that the world may see you delay not the business. Sir Tho. Meres. No great man, be he as great as he will, desires to contend with the house of commons for privilege; no man that considers the merits of this house of commons, who have given more than all the parliaments since the Conquest: Many kindnesses we have done, and if privilege be a kindness from the king, we have not the least reason to lose it: We are now upon perfect point of right; have we nothing of right? Must all be prudence and convenience? If you resolve for the same privilege, why should you lose it now more than in the former Speaker's time? Mr. Attorney has granted that the writs not executed are superseded,' and those writs, moved for, he would have go out: notification was not the word formerly, nor certificate, but the Speaker, in 1603, sent his warrant to the clerk of the crown. Mr. Secretary Coventry. In the time of lord chancellor Clarendon, the writs went by way of certificate, not warrant. Mr. Powle speaks to the merits of the cause: issuing out of writs, the parliament not sitting: it is against reason that an inferior court should judge of the defects of a superior: the inferior courts at Westminster cannot judge the defects of chancery; the chancellor cannot judge of returns. If he issues out writs, he makes himself judge of returns: he must judge that the member is dead, and that the person returned has a right to the place, and so becomes a judge of things done in this house. Formerly the king never chose a Speaker till the house informed him of a defect, much less can he take notice of defects of members. The chancellor does more; he judges of removes out of this house into the lords house-31 Hen. vi. a baron of the exchequer sat then, and now the house thinks it not fit. Attorney-generals have been discharged the house and shall the lord chancellor take out of our house so learned a gentleman as Mr. Attorney? Judge Popham was sent for out of the house of lords, when reported to be there. Until 7 Hen. iv. all writs were returned to the clerk of parliament: the King's-bench judges of returns of writs, though issued out of chancery; and though in Hen. iv's time, writs were returned to chancery, yet that In the Speaker's case. See p. 501.. alters not the jurisdiction of this house: if you admit the writs, you admit the chancellor judge of returns-23 Eliz. writs issued out, and members were discharged, so returned; and ordered, That during the sitting of this house, no warrants should be issued out, but according to ancient usage: sitting is in common acceptation from first day of sitting, though in a restrained sense, to the time of parliament actually being here, restrainedly whilst it sits, but in common sense from the first day. They in parliament farther agree, That issuing shall not be at any time without a warrant from the Speaker-3 James, nothing done against itHertford writ for election suspended-1 Jam, sir Francis Goodwin was chosen, though sir John Fortescue was recommended, for the county of Buckingham; Goodwin was clearly elected, and not Fortescue; when it came to the council, both writs were voided, and a new election. Great inconveniences by it-admit the chancellor to judge of these returns, and by consequence he will judge all your returns. The right of judging returns was, in Goodwin's case, pretended to be in chancery, but judged against it here. By this means the chancellor may chuse whom he will, and so no great person ever be called to an account here-There is no time set in these writs, when the member died; no time of death, nor remove to the fords house. And the gentleman that vouched the precedent of queen Eliz. might have done as many in this parliament, if they would serve his turn the calling of a member into the lords house, must be by our consent. * Mr. Secretary Coventry. If such writs are rightfully issued out, you can put no question upon the superseding them. Mr. Hampden. The meaning of your order is, to issue out writs for places void here represented. Mr. Swynfin. Whether such elections are good or no, without referring the matter to a committee, is the question: has not heard one precedent offered where such elections have been allowed of, if notice taken of them; it is but of late usage the moving of the Speaker: how does it appear that the writs, urged as precedents, were not issued out by the Speaker's warrant, the house sitting? These elections out of sitting. The main concern is, he takes the book of this house to be a record. The Statute 6 Hen. viii. makes any person departed the house, recorded in your books, to lose his wages. In any thing that concerns this house, all courts must take your books for a record, and whether a member be or not, your book must testify how can any court say such a member is dead? They can say he was returned; but that he was a member, your book must be sought: a man may sit here a year, and die, and yet not have been duly elected. If the chancellor has power to send out, he has power to deny, * See the Case between sir Francis Godwin and Mr. John Fortescue at length, in vol. i. p. 998. a writ. Now the question is, whether you will search records? Your book must still decide it. Sir Tho. Strickland. The chancellor has the king's command to issue out writs. Sir Tho. Clarges. The question is not whether the king has power to issue out writs, but whether the chancellor, or the h. of commons, are to judge of vacancies. A member cannot be arrested, and yet the king's authority is preserved: we should not be able to serve our king or country, if our privilege be not preserved: if scrupled, wonders that the reasons are not answered. Mr. Attorney Finch. On the question of security and satisfaction, you have done it by voiding the elections already passed. You have done it, and outdone all parliaments: it is questioned, How a chancellor can know a member? Answers, by return. He knows he is dead by record, by executors and administrators. If they died since last session of parliament, no warrant could be had from the Speaker. If, instead of 30 or 40, 150 members should be dead, if writs may not go out, the parliament must be dissolved for want of number. Until you have made the thing unlawful, and say so, it is lawful to do so. Sir Tho. Meres. No government but is subject to objections of all sorts relating to mankind. If such an extraordinary thing should happen once in a thousand years, the king may then, if he please, call a new parliament. Precedents are muddy, not clear, on the best side: the king is as much king of this court as chancery, and those arguments to the contrary are disobliging arguments. : Mr. Secretary Coventry. In committees of privileges, you first send for the mayor or bailiff that returns the election, before you condemn him will not you hear precedents for the chancellor? All that we have to do is to induce the king to be of our opinion do you believe the chancellor will acknowledge he has done wrong, by submitting to your supersedeas; It was at length resolved, "That all Elections upon the Writs issued by the Chancellor since the last Session, are void; and that Mr. Speaker do issue out warrants to the clerk of the crown to make out new Writs for those places." Declaration of War against Holland.] The Declaration against Holland alluded to in his majesty's Speech was as follows: "We have been always so zealous for the quiet of Christendom, and so careful not to invade any other kingdom or state, that we hope the world will do as the justice to believe, that it is nothing but inevitable necessity forceth us to the resolution of taking up arms. Immediately upon our Restoration to our crowns, the first work we undertook, was the establishing of peace, and the settling a good correspondence between us and our neighbours: and in particular, our care was to conclude a strict League with the States-General of the United Provinces, upon such equal terms, as would certainly not have been remote parts, when they dare be so bold with our royal person, and the honour of the nation, so near us as in their own country, there being scarce a town within their territories that is not filled with abusive pictures, and false, historical medals and pillars; some of which have been exposed to view by command of the States themselves, and in the very time when we were joined with them in united councils for the support of the Triple League, and the peace of Christendom. This alone were cause sufficient for our displeasure, and the resentment of all our subjects. But we are urged to it by considerations yet nearer to us, than what only relates to ourself; the safety of our Trade, upon which the wealth and prosperity of our people depends, the preservation of them abroad from violence and oppression, and the Hollanders daring to affront us almost within our very ports, are the things which move our just indignation against them.—The Right of the Flag is so ancient, that it was one of the first prerogatives of our royal predecessors, and ought to be the last from which this kingdom should ever depart. It was never questioned, and it was expressly acknowledged in the Treaty of Breda; and yet this last summer it was not only violated by their commanders at sea, and that violation afterwards broken, if any obligations could have kept them within the bounds of friendship and justice. This League was maintained inviolable on our part: but in 1661, we were stirred up by the complaints of our people, and the unanimous Vote of both houses in parliament, finding it a vain attempt to endeavour the prosperity of our kingdoms by peaceable ways at home, while our subjects were still exposed to the injuries and oppressions of the States abroad. That whole summer was spent in negotiations and endeavours on our side, to bring them to reasonable terms, which, notwithstanding all we could do, proved at length ineffectual: for the more we pursued them with friendly propositions, the more obstinately they kept off from agreeing with us. Upon this ensued the war in 1665, and continued till 1667; in all which time our victories and their losses were memorable enough to put them in mind of being more faithful to their Leagues for the future. But instead of that, the peace was no sooner made, but they returned to their usual custom of breaking articles, and supplanting our trade. For instance, the States were particularly engaged in an article of the Treaty of Breda, to send commissioners to us at London, about the regulation of our Trade in the East-Indies; but they were so far from doing it upon that obligation, that when we sent over our am-justified at the Hague, but it was also reprebassador to put them in mind of it, he could not in three years time get from them any satisfaction in the material points, nor a forbearance of the wrongs which our subjects received in those parts.-In the West-Indies they went a little farther, for by an Article in the same Treaty, we were to restore Surinam into their hands; and by Articles upon the place confirmed by that Treaty, they were to give liberty to all our subjects in that colony, to transport themselves and estates into any other of our plantations. In pursuance of this agreement, we delivered up the place, and yet they detained all our men in it; only major Banister they sent away prisoner, for but desiring to remove according to the Articles. Our ambassador complaining of this behaviour, after two years solicitation, obtained an order for the performance of those Articles: but when we sent Commissioners, and two ships to bring our men away, the Hollanders (according to their former practice in the business of Poleroon for above 40 years together) sent private orders contrary to those they owned to us in public and so the only effect of our commissioner's journey thither, was to bring away some few of the poorest of our subjects, and the prayers and cries of the most consi-condition, that it should never be taken for a derable and wealthiest of them, for relief out of that captivity. After this, we made our complaints by our Letters in August last to the States-General, wherein we desired an Order to their governors there, for the full observance of those Articles; yet to this time we could never receive one word of answer or satisfaction. But it is no wonder that they venture at these outrages upon our subjects in VOL, IV. sented by them in most courts of Christendom, as ridiculous for us to demand. An ungrateful insolence! That they should contend with us about the dominion of these seas, who, even in the reign of our royal father (in the years 1635-6, and 7) thought it an obligation to be permitted to fish in them, by taking of Licences and for a Tribute; and who owe their being now in a condition of making this dispute, to the protection of our ancestors, and the valour and blood of their subjects. Notwithstanding all these provocations, we patiently expected satisfaction, not being willing to expose the peace of Christendom for our particular resentments, while they ceased not on their parts to endeavour to provoke the most Christian king against us: of which they thought themselves so secure, that for above these 12 months their ministers here have threatened us with it. At length, hearing nothing from them, we sent another ambassador to them, who after several pressing Memorials in our name, could receive no answer, till after he had declared his revocation. Then they offered a Paper to this effect, That, in this conjuncture, they would condescend to strike to us, if we would assist them against the French; but upon precedent hereafter to their prejudice.' Since the return of our said ambassador, they have sent an extraordinary one to us, who, in a most extraordinary manner, hath given us to understand, That he can offer us no satisfaction, till he hath sent back to his masters.' Wherefore, despairing now of any good effect of a further Treaty, we are compelled to take up arms in defence of the ancient prerogative of 2 L our crowns, and the glory and safety of our kingdours and we put our trust in God, that he will give us his assistance in this our just undertaking, since we had no way left to defend our people from the artifice of that nation in peace, but by the valour of our subjects in war."-The rest of the Declaration was only form, and therefore unnecessary to be inserted; only the conclusion must not be omitted, which was more strange and surprising to some than all the rest. It runs in these words: "And whereas we are engaged by a Treaty to support the Peace made at Aix laChapelle, we do finally declare, That notwithstanding the prosecution of this war, we will maintain the true intent and scope of the said Treaty, and that in all the alliances which we have or shall make in the progress of this war, we have and will take care to preserve the ends thereof inviolable, unless provoked to the contrary." Declaration of Indulgence.] The Declaration of Indulgence referred to in his majesty's Speech, was in substance as follows: "Our care and endeavours for the preservation of the rights and interests of the church, have been sufficiently manifested to the world, by the whole course of our government, since our happy Restoration, and by the many and frequent ways of coercion that we have used for reducing all erring or dissenting persons, and for composing the unhappy differences in matters of religion, which we found among our subjects upon our return: But it being evident by the sad experience of twelve years, that there is very little fruit of all those forcible courses, we think ourselves obliged to make use of that supreme power in ecclesiastical matters, which is not only inherent in us, but hath been declared and recognized to be so by several statutes and acts of parliament: And therefore we do now accordingly issue out this our royal Declaration, as well for the quieting the minds of our good subjects in these points, for inviting strangers in this conjuncture to come and live under us, and for the better encouragement of all to a chearful following of their trades and callings, from whence we hope, by the blessing of God, to have many good and happy advantages to our government; as also for preventing for the future the danger that might otherwise arise from private meetings, and seditious conventicles. And in the first place, we declare our express resolution, meaning, and intention to be, That the Church of England be preserved, and remain entire in its doctrine, discipline and government, as now it stands establish'd by law: And that this be taken to be, as it is, the basis, rule and standard of the general and public worship of God, and that the orthodox conformable clergy do receive and enjoy the revenues belonging thereunto; and that no person, though of different opinion and persuasion, shall be exempt from paying his tythes, or other dues whatsoever. And further, we declare, That no person shall be capable of holding any benefice, liv ing, or ecclesiastical dignity or preferment of any kind in this kingdom of England, who is not exactly conformable. We do in the next place declare our will and pleasure to be, That the execution of all and all manner of penal laws in matters ecclesiastical, against whatsoever sort of non-conformists, or recusants, be immediately suspended, and they are hereby suspended. And all judges of assize and gaol-delivery, sheriffs, justices of the peace, mayors, bailiffs, and other officers whatsoever, whether ecclesiastical or civil, are to take notice of it, and pay due obedience thereunto. And that there may be no pretence for any of our subjects to continue their illegal meetings and conventicles, we do declare, That we shall from time to time allow a sufficient number of places, as shall be desired, in all parts of this our kingdom, for the use of such as do not conform to the Church of England, to meet and assemble in, in order to their public worship and devotion; which places shall be open and free to all persons. But to prevent such disorders and inconveniencies as may happen by this our indulgence, if not duly regulated, and that they may be the better protected by the civil magistrate, our express will and pleasure is, That none of our subjects do presume to meet in any place, until such place be allowed, and the teacher of that Congregation be approved by us. And lest any should apprehend, that this restriction should make our said allowance and approbation difficult to be obtained, We do further declare, That this our indulgence, as to the allowance of public places of worship, and approbation of teachers, shall extend to all sorts of non-conformists and recusants, except the recusants of the Roman catholic religion, to whom we shall no ways allow in public places of worship, but only indulge them their share in the common exemption from the executing the penal laws, and the exercise of their worship in their private houses only. And if after this our clemency and indulgence, any of our subjects shall presume to abuse this liberty, and shall preach seditiously, or to the derogation of the doctrine, discipline, or government of the established church, or shall meet in places not allowed by us; we do hereby give them warning, and declare, we will proceed against them with all imaginable severity: And we will let them see, we can be as severe to punish such offenders, when so justly provoked, as we are indulgent to truly tender consciences." A Supply Voted.] Feb. 7. The house, in a grand committee, resolved, "That a Supply be given to his majesty of eighteen months assessment, according to the proportion of the last royal Aid, not exceeding 70,000l. a month."* Amounting in the whole to 1,260,000%. On this matter of the Supply, bishop Burnet writes as follows: "The court desired at least 1,200,000l. for that sum was necessary to the carrying on the war. The great body of those who opposed the court had resolved to give |