The History and Proceedings of the House of Commons: Volume 1, 1660-1680. Originally published by Chandler, London, 1742.
This free content was digitised by double rekeying. All rights reserved.
The Eighth Session of the second Parliament.
On the 10th day of October, after a double Prorogation, the Parliament met at Westminster, having in effect had a Recess of about nine Months, but from the last short intermediate Meeting not above ten Weeks. When his Majesty made this short Speech to both Houses:
The King's Speech to both Houses.
'My Lords and Gentlemen,
'When we last met here, about eleven Weeks ago, I thought fit to prorogue the Parliament to this very Day, resolving that there should be a Session now, and to give myself time to do some things I have since done, which I hope will not be unwelcome to you, but a Foundation for a greater Confidence between us for the future. The other Reasons for that Prorogation, and some other Matters with which I would acquaint you, I have commanded my Lord-Keeper to declare unto you.'
The Lord Keeper Bridgeman's Speech.
Hereupon the new Lord-Keeper Bridgeman made the following Speech: 'My Lords, and you Knights, Citizens, and Burgesses of the House of Commons; This Parliament, (after many good and wholesome Laws made with your Advice in several Sessions, many great Supplies and Aids given to his Majesty, and for the Maintenance of the Wars, and many other signal Testimonics of your Affection and Duty to him, for which his Majesty again and again renews unto you his most hearty Thanks) was, as you very well know, prorogu'd from February last, till this tenth of October; his Majesty having then reason to believe, that there could be no Cause of your re-assembling in the mean time. But in this Interval, the Dutch (who since the War began, were strengthen'd by the Union of France and Denmark, having a great Fleet) actually invaded the Land; and the French at the same time had a royal Army in the Field, not far from the Sea-Coast; the Conjunction of which with the others, in some Design against Eng land, or some other of his Majesty's Dominions, we had then cause to suspect. In this streight, his Majesty (who in lesser Difficulties had frequent recourse unto his Par liament, as his great and faithful Council, and therefore hath every Year once, often twice, re-assembled you) thought it necessary to anticipate the Time, and issu'd out Proclamations for your Meeting on the 25th day of July last. This, tho' unusual, was done by the Advice of his Privy-Council; public Necessity and Exigencies allowing, or at least dispensing with many things, which, except in such Cases, were not to be allow'd or dispeu sed withal. Before the 25th day of July, there was a Prospect and daily Expectation, and within three days following, an Assurance of a Peace concluded with, and ratify'd by our three potent Adversaries. The Storm which threatned us being thus blown over, and succeeded by so great a Serenity, it was rais'd as a Doubt by grave and wise Men, Whether or no, the Necessities and Difficulties which caus'd so early a Summons being remov'd, you could sit or act as a Parliament before the 10th of October; being the fix'd Time to which you were formerly prorogu'd. For this Cause, together with those others mention'd by his Majesty, he in his princely Wisdom held it necessary, in a matter of so great Consequence, again to fix upon this Day for your Meeting in Parliament, about which there can be no Dispute; which being thus twice prefix'd, and you meeting here upon a double Call, his Majesty hopes it is a happy Omen, That this Session of Parliament (which in Law is but this one Day, all Acts of this Session referring to it, unless otherwise specially provided) will be happy and prosperous to his Majesty, to You, and to the whole Kingdom.
'My Lords and Gentlemen, His Majesty supposes, that no Man wou'd expect, that during your Recess he should have refused Overtures of Peace: The Vicinity as wellas Potency of his united Enemies, the great Expences of the War, carry'd on with much Disadvantage, by reason of the Plague and dismal Fire in London, the Consideration of the Posture of Affairs abroad, besides many other Motives obvious unto you, induc'd him to embrace the Opportunity of concluding a Peace. But you well know, that tho' the War be at an end, all the Effects thereof are not yet ended. It will require Time and your good Advice, to remove those Obstructions which hinder the Current of Trade both at home and abroad. And in this Particular, his Majesty thinks fit to recommend it to your Wisdom, to settle such a Balance of Trade between his Subjects of this Kingdom and those of Scotland, as that we may not be prejudic'd by the Import of their Commodities hither; nor yet they be so discourag'd, as to leave off trading here, and find out other Vent abroad more dangerous to us. This he finds too hard for him without your Assistance, tho' upon your recommending it to him, he has used some Endeavours therein. His Majesty formerly promised, that you should have an Account of the Moneys given towards the War, which his Majesty has commanded his Officers to make ready: And since that way of Commission, wherein he had put the Examination of them, hath been ineffectual, he is willing you shou'd follow your own Method, examine them in what way, and as strictly as you please; he doth assure you, He will leave every one concern'd to stand or fall, according to his own Innocence or Guilt. His Majesty has reason to believe, that some disaffected Persons, taking advantage of the public Necessiries, have spread abroad Discourses and Rumours reflecting upon the Government, intending thereby to beget a Disaffection in his good Subjects: And it is an easy thing to take exceptions, Cum neque Culpam humana infirmitas, neque Calumniam regnandi Difficultas evitet. But his Majesty promises himself from your good Affections, that every one of you in your several Places will endeavour to preserve a good Understanding between him and his People: And if any just Grievances shall have happen'd, his Majesty will be as willing and ready to redress them for the future, as you to have them represented unto him. And his Majesty doubts not but you will give healing and moderate Counsels, and imprint that known Truth into the Hearts of his Subjects, that there is no distinct Interest between the King and his People; but the Good of one, is the Good of both.'
The Address of both Houses to the King. ; His Answer.
Immediately after, the House of Commons took into Consideration what had been said to them, and resolv'd upon an Address of Thanks to his Majesty, in which they desir'd and obtain'd the Concurrence of the Lords. Accordingly, on the 15th of October, the two Houses in a Body, with their Speakers, attended the King in the Banqueting House at Whitehall; where the Lord-Keeper, as Speaker of the House of Peers, in the Name of both Houses, repeated this following Address to his Majesty: 'We your Majesty's loyal and faithful Subjects, the Lords and Commons in Parliament assembled, having taken into our serious Consideration your Majesty's gracious Speech, wherein you were pleas'd to let us know, that your Majesty thought fit to prorogue this Parliament till the 10th of October, that you might give yourself time to do something which wou'd not be unwelcome, but a Foundation for a greater Confidence between your Majesty and your People; we find ourselves bound in Duty to return your Majesty our humble and hearty Thanks for the gracious Declaration of your royal Intentions in that your Majesty's gracious Speech, and in that deliver'd by your Majesty's Command by the Lord Keeper. And particularly, "That your Majesty has been pleas'd to disband the late rais'd Forces; and to dismiss the Papists from out your Guards, and other military Employments: For your Majesty's Care in quickning the Execution of the Act for restraining the Importation of foreign Cattle: For causing the Canary Patent to be surrender'd and vacated: And more especially, that your Majesty hath been pleased to displace the late Lord Chancellor, and remove him from the Exercise of public Trust and Employment in Affairs of State." To which Address his Majesty was pleased to make this Return; 'I thank you for your Thanks; I am glad the things I have done have given you so good Satisfaction: And for the Earl of Clarendon, I assure you I will never employ him again in any publick Affairs what soever.'
Proceedings against the Earl of Clarendon. ; Sir Tho. Littleton. ; His Son vindicates him.
October 26 the Commons took into Examination, the Conduct of the Earl of Clarendon, to whose charge (fn. 1) Mr. Edward Seymour then laid many great and heinous Crimes. Upon which there arose a Debate in the House how they should proceed upon it, some moving he should be impeach'd in the Name of the Commons, till Articles should be form'd against him; others urg'd, that Witnesses should be first examined, to see how the Charge might be made good, lest, in case of Failure, it might reflect on the Honour of the House. After a long Debate a Committee was appointed to search Records for Parliamentary Proceedings in the like Cases; from which Sir Thomas Littleton making Report on the 30th, that they had found various Proceedings in several Parliaments, there arose another long Debate, which was maintained with great Warmth, and in which the Earl was loaded with many heavy Crimes and Misdemeanors. The chief Speakers against his Lordship were Mr. Seymour, Sir Thomas Littleton, Serjeant Maynard, Sir John Holland, Sir Thomas Osborn, (fn. 2) Sir Robert Howard, Mr. Garraway, Lord Saint John, (fn. 3) Sir Charles Wheeler, Mr. Hampden, Mr. Marvel, Mr. Prynne, Mr. Secretary Morrice, Mr. Waller, and (fn. 4) Sir John Vaughan; which last having been formerly intimate with the Chancellor, upon the Restoration finding himself receiv'd with more coolness than he expected, omitted no opportunity of opposing him; and in these Debates none pursu'd him with greater Animosity. The chief on the other side, who stood up in favour of the Earl, were Sir Heneage Finch, Sir Francis Goodrick, (fn. 5) Mr. Coventry, Sir Edward Thurland, Sir John Brampston, (fn. 6) Sir John Talbot, Sir John Shaw, (fn. 7) Sir Thomas Clifford, (fn. 8) Sir Stephen Fox, and the Earl's own Son, Mr. Lawrence Hyde: which last declared, he was serisible the House might think him partial; but that he shou'd endeavour to shew himself not so much the Son of the Earl of Clarendon, as a Member of that House: That if he shou'd be found guilty, no Man shou'd be more against him than he; otherwise he hoped every one wou'd be for him as much as himself: That every one in his own Conscience was to consider what of that Charge was true; since he was assur'd, that if one Article was prov'd against the Earl, he and all his Friends wou'd own him guilty of all the rest.
This Debate ended in a Vote, that the Committee shou'd reduce the Accusation to Heads, and present them to the House; all which was done on the 6th of November; when Sir Thomas Littleton reported and read the same as follows:
The Articles against him.
'1. That the Earl of Clarendon hath design'd a standing Army to be rais'd, and to govern the Kingdom thereby; and advis'd the King to disolve this present Parliament, and to lay aside all Thoughts of Parliaments for the future, to govern by a Militry Power, and to maintain the same by Free-Quarter and Contribution. II. That he hath, in the hearing of the King's Subjects, falsly and seditiously said, That the King was in his Heart a Papist, or Popishly affected; or Words to that effect. III. That he hath receiv'd great Sums of Money for the procuring of the Canary Patenc, and other illegal Patents; and granted illegal Injunctions to stop Proceedings at Law against them, and other illegal Patents formerly granted. IV. That he hath advised and procured divers of his Majesty's Subjects to be imprison'd against Law, in remote Islands, Garisons, and other Places, thereby to prevent them from the Benefit of the Law, and to produce Precedents for the imprisoning any other of his Majesty's Subjects in this manner. V. That he procured his Majesty's Customs to be farmed at Under-Rates, knowing the same; and great pretended Debts to be paid by his Majesty, to the Payment of which his Majesty was not strictly bound; and afterwards receiv'd great Sums of Money for procuring the same. VI. That he receiv'd great Sums of Money from the Company of Vintners, or some of them, or their Agents, for inhancing the Prices of Wines, and for freeing them from the Payment of legal Penalties, which they had incurr'd. VII. That he hath in a short time gain'd to himself a greater Estate than can be imagin'd to be gain'd lawfully in so short a time; and, contrary to his Oath, he hath procured several Grants under the Seal, from his Majesty to himself and Relations, of several of his Majesty's Lands, Hereditaments and Leases, to the disprofit of his Majesty. VIII. That he hath introduc'd an arbitrary Government in his Majesty's Foreign Plantations, and hath caus'd such as complain'd thereof before his Majesty and Council, to be imprison'd for so doing. IX. That he did reject and frustrate a Proposal and Undertaking, approv'd by his Majesty, for the Preservation of Nevis, and Saint Christopher's, and reducing the French Plantations to his Majesty's Obedience, after the Commissions were drawn for that purpose; which was the Occasion of our great Losses and Damages in those Parts X. That he held Correspondence with Cromwell and his Complices, when he was in Parts beyond the Seas, attending his Majesty, and thereby adhered to the King's Enemies. XI. That he advised and effected the Sale of Dunkirk to the French King, being part of his Majesty's Dominions; together with the Ammunition, Artillery, and all sorts of Stores there, and for no greater Value than the said Ammunition, Artillery and Stores were worth. XII. That the said Earl did unduly cause his Majesty's Letters Patent, under the Great Seal of England, to one Dr. Crowther, to be alter'd, and the Enrollment thereof to be unduly rased. XIII. That he hath in an arbitrary way examin'd and drawn into question divers of his Majesty's Subjects concerning their Lands, Tenements, Goods, Chattels and Properties; and determin'd thereof at the Council-Table, and stopt Proceedings at Lawby order of the Council-Table, and threatned some that pleaded the Statute of the 17th Car. I. XIV. That he hath caused Quo Warranto's to be issued out against most of the Corporations of England, immediately after their Charters were confirm'd by an Act of Parliament, to the intent he might require great Sums of Money for renewing their Charters; which when they comply'd withal, he caus'd the said Quo Warranto's to be discharg'd, and Prosecution therein to cease. XV. That he procur'd the Bills of Settlement of Ireland, and receiv'd great Sums of Money for the same in a most corrupt and unlawful manner. XVI. That he hath deluded and betrayed his Majesty and the Nation in all Foreign Treaties, and Negotiations relating to the late War, and betray'd and discover'd his Majesty's secret Councils to his Enemies. XVII. That he was the principal Author of that Fatal Council of dividing the Fleet about June 1666.'
Their Examination of the Particulars.
After reading these Heads of Accusation, it was moved, That in regard the Articles were many, they might be referr'd to a Committee to see how far they were true, because Fame was too slender a Ground to bring a Man upon the Stage. But this was carry'd in the Negative; and so they proceeded to the reading the Articles singly and separately, and to speak to the Truth or Probability of them. The first Article being read, to see what could induce the House to impeach, Sir Robert Howard and Sir John Vaughan said, they heard from Persons of Quality, that it wou'd be prov'd. As to the second Article, the Lord Saint John said, Persons of great Quality had assur'd him to make it good; and if they did not, he wou'd acquaint the House who they were. Mr, Seymour, as to the third Article, alledg'd that sufficient Persons would make it good, with this additional Saying, So long as the King is King, and I Lord Chancellor, the Patents will stand. The fourth and fifth Articles, (fn. 9) Sir Richard Temple said, divers had undertaken to make good; if they did not, he wou'd name them: and for the receiving Money of the Vintners, (fn. 10) Sir Robert Car said, That he knew who would prove it. About his getting a great Estate so suddenly, Mr. Seymour said, They need not prove that the Sun shone at Noon-day. And Sir Thomas Littleton added, That his Place as Chancellor could not be worth above four or five thousand Pounds a Year. Then, about introducing an arbitrary Government in the Plantations, Sir Thomas Littleton and Sir Thomas Osborn alledg'd, That one Farmer and others came from Barbadoes to complain of it, and lodg'd their Petition in that House, but were imprison'd, that they might not be heard: And, for frustrating Proposals for preserving Nevis, &c. Sir Charles Wheeler said, My Lord-Chancellor only oppos'd it. As to the Sale of Dunkirk, Sir Thomas Osborn said, a great Lord told him, that he had made a Bargain for Dunkirk three Quarters of a Year before it was known. Then, for the Article of sealing Dr. Crowther's Patent, Mr. Streeter said, the King gave a Living to Crowther; that in the Grant there was a Mistake of a County; Crowther finding the Mistake, petition'd the King to mend it: that the King call'd for the Chancellor and Seal, and in the King's Presence it was amended and seal'd. Mr. Thompsou said, he should be able to make good the Article of drawing Mens Lands into question: And for Quo Warranto's to Corporations, Sir Thomas Littleton said, It was so public a thing that it need not be prov'd. Sir Robert Howard doubted not but the Business about the Settlement of Ireland would be made out; and, for foreign Treaties it would, according to Sir Thomas Littleton, appear by the Treaties themselves, putting them in hopes of Peace, and so hindering the Fleet's setting out. Lastly, Mr. Thompson said, he did not want Persons to make good the Article about the Miscarriage of the War.
They impeach him of High-Treason, &c.
The tenth Article, concerning the Earl's Correspondence with Cromwell, upon a Debate, was found to be within the general Act of Indemnity, and therefore was drop'd and expung'd. And at last the Question being put, Whether the House had sufficient Inducement to impeach, it was carry'd in the Affirmative. So on the 9th of November the first Article being read, a long and learn'd Debate arose, whether to accuse him of Treason upon it; but it was carry'd by a great Majority in the Negative. The second Article was debated, but not voted: The Third and Fourth were soon carry'd against the Earl: The Fifth had the same Fate with the Second: The Sixth, Seventh, Eighth and Ninth, were read and voted. But the Tenth, that of Dunkirk, admitted of a strenuous Debate, and at last was passed by, without determining whether it was Treason or not. The Eleventh, Twelfth, Thirteenth and Fourteenth, were carry'd without opposition. As to the Fifteenth, which was now the last but one, after a Debate it was carry'd to impeach of Treason. Accordingly they resolv'd that Impeachment of Treason, and other Crimes and Misdemeanors, should be carry'd up to the Lords against him by Mr. Edward Seymour: who, on November the 12th, went up to the House of Lords; and the Lord-Keeper Bridgeman being come to the Bar to meet him, he delivered himself to this purpose: 'My Lords, the Commons assembled in Parliament, having been informed of several traitorous Practices, and other Crimes and Misdemeanors committed by Edward Earl of Clarendon, a Member of this honourable House, have commanded me to impeach him: And I do accordingly impeach him of High-Treason, and other Crimes and Misdemeanors, in the Name of the said Commons, and of all the Commons of England. And they have farther commanded me to desire your Lordships to sequester him from Parliament, and to commit him to safe Custody, and in convenient Time they will exhibit Articles against him.'
The Lords disagree with the Commons. ; Who resent it.
But, the Lords being not satisfy'd with a general Way of impeaching the Earl, on the 15th of November sent down to desire a Conference in the Painted-Chamber. At which, without any Debate, the Earl of Oxford deliver'd a Paper to this effect: 'That the Lords had not committed the Earl of Clarendon, because the Accusation was only of Treason in general, without charging him wish any thing in particular.' Upon this there arose a warm Debate in the House of Commons, in which Mr. Garraway said, I had rather the House should lose the Punishment of this Man, tho' a great Offender, than that this House should lose its Privilege: For if this House may at no time impeach a Lord without giving in particular Articles, it may fall out at a time (as in the Duke of Buckingham's Case) where a great Man by his Interest with the King procures the Dissolution of the Parliament, and then the Accusation falls.' The Debate ended in a Resolution to appoint a Committee to draw up Reasons to justify what they had done; and which were delivered in three days after: of which this seems to be the principal; 'If before securing the Persons, the special Matter of the Treason should be alledg'd, it would be a ready Course that Complices in the Treason might make their escape, or quicken the execution of the Treason intended, to secure themselves the better thereby.' The Reasons, with divers Precedents to inforce them, were on the 28th communicated at a free Conference: In which the Lords chiefly insisted upon the Petition of Right, where it was provided that none should be committed without special Cause, whereby the Party might answer according to Law. From whence they inferr'd 'That the Commons Proceedings were contrary to Law, because a general Charge was against the Petition of Right.'
Mr. Waller. ; Sir J. Vaughan.
On the 2d of December the Lords confirm'd their Proceedings, and sent down a Message to the Commons by two Judges, to this effect: 'That upon the Report made to them of the last free Conference, they were not satisfy'd to commit or sequester from Parliament the Earl of Clarendon, without the particular Treason were mention'd or assign'd. This threw the House of Commons into a great Ferment, and occasion'd several warm Speeches, particularly from Mr. Waller and Sir John Vaughan. The former stood up and said, The Lords are a noble Estate, but whatever the matter is, they have of late some Advice given them, which makes them proceed as they never did yet; for scarce any thing happens, but they encroach upon us. The Militia is now as burdensome to the fifty Pound Man in the Country, almost as all other Taxes, and the Lords have gotten this Advantage on us, that they touch not the Burden of it with their Finger: So in the Time of the Plague, the Commons must be shut up, but not They; insomuch that a good Act provided to that purpose passed not. We impeach'd the Lord Mordant, and could not bring him to the Bar, tho' formerly I have known an Earl and a Lord brought thither; you desired a free Conference about it, but could not obtain one to this day. Rome was at first modest, and only meddled with Spirituals, but afterwards concern'd themselves so much with other Matters, that every Thing was made to be in Ordine ad Spiritualia, and many Kingdoms thereupon broke from them. The Lords now insist upon one thing, because they say it is in order to their Judicature; perhaps hereafter they will tell us we must come to them on our Knees, because it is in order to their Judgment. Consider therefore whether there be any hope of giving them Satisfaction. Sir John Vaughan was long about Precedents and Law, upon' the latter of which the Lords had insisted; and he said, That in the free Conference there was much Discourse about the Great Charter, and of the Statute of the 28 of Edw. III. but not apply'd: So that I thought Law in a Lord's Mouth was like a Sword in a Lady's Hand; the Sword might be there, but when it comes to cut, it would be aukward and useless.— The Conclusion must be, that no Impeachment by the Commons must go on, unless it be by Presentment; and so there is an end of all that for which the Parliament is principally call'd; unless we are Part of those five hundred contemptible ones, who are only fit to give Money: That may be reserv'd for us, but nothing else.
On the other side, Mr. Colombine stood up, and thus modestly argu'd in favour of the Lords: 'The Lords say, That Committing upon a general Impeachment was against Law, and he thought would appear so: He deny'd not, but a Mittimus without special Cause might be legal, and grounded upon the Petition of Right; the Reason of which was to secure Men against Commitment by a special Warrant, and a Judge ought not to discharge where Treason was alledg'd: But in this Case it was different, the Judges could not discharge a Man committed after Examination, but the Lords ought not to commit a Man, except there were particular Treason.' That if he came before a Justice of Peace, and said I accuse this Man of Treason, would any wise Man commit him? He made his Warrant indeed, but he that accus'd must go farther, and make it more particular, and the special Matter must appear before he commits; and this was the present Case. The common Law was, That no Man ought to be committed without particular Cause; because no Man could commit in capital Matters, without taking Examination before-hand, otherwise no Man could justify a Commitment; Therefore he was not satisfy'd, that the Lords had not Reason to deny it. That the Commons were in the nature of a Grand Jury to present, but the Lords were the Judges: That Commitment was not the Judgment, but in order to it; and the Lords had a discretionary Power in the Case: They said not that they would not commit, but that they were not satisfy'd to do it without special Matter, therefore the Commons ought to send it up. After all the Debate, the House came to this positive Resolution, 'That the Lords, not having comply'd with the Desire of the Commons in committing the Earl of Clarendon, and sequestring him from Parliament upon the Impeachment from that House, was an Obstruction to the public Justice of the Kingdom, and a Precedent of evil and dangerous Consequence: And upon this they appointed a Committee to draw up a Declaration to vindicate their Proceedings.
The Earl of Clarendon withdraws, and leaves a remarkable Apology.
About this Time the Earl of Clarendon thought proper to withdraw, and having left an (fn. 11) Apology for his Conduct, addressed to the Lords, that House, upon receiving this Address, on the 3d of December sent a Message to the Commons by two Judges, signifying 'That they had receiv'd a large Petition from the Earl of Clarendon, which intimated that he was withdrawn; and soon after desired a present Conference with them. At which Con ference, the Duke of Buckingham, who was plainly aim'd at in the Petition, deliver'd it to the Commons, and with his usual way of Insult and Ridicule said, 'The Lords have commanded me to deliver to you this scandalous and seditious Paper sent from the Earl of Clarendon: They bid me to present it to you, and desire you in convenient time to send it to them again; for it has a Style which they are in love with, and therefore desire to keep it.'
Sir John Vaughan.
When the Earl's Address and Apology was read by the Commons, it occasion'd a new Turn, and a new Warmth in the Debates of that House. Sir John Vaughan began with great Fury, and among other things said, 'It is the first time that ever I heard an innocent Man run away under the greatest Charge, with Hopes to return again and vindicate himself Mark one Expression; he says, he is as far from Corruption, as he is from Disloyalty: If he had said he was guilty of neither, he had said something, but by that Expression he may be guilty of both. So insolent a Paper I never met with in this Kingdom, nor have I ever heard the like in any other: So inconsiderable a Part of the Nation as he is, to lay it upon the Nation, who, if innocent, might defend himself; if guilty, why does he charge the Nation with persecuting? Therefore, without troubling ourselves with it, do as the Lords have done, who, deliver'd it to us as a scandalous and seditious Paper; it has Malice in it, and is the greatest Reproach upon the King and the whole Nation, that ever was given by Man.' Therefore in conclusion he put the Question, Whether the Paper should be voted scandalous and malicious, and a Reproach to the Justice of the Nation? Which was carry'd in the Affirmative. Sir Robert Howard mov'd that it should be burnt by the Common-Hangman; but that was oppos'd, because the Lords desir'd the Paper to be return'd; yet still at last that was carry'd also in the Affirmative.
The Lords send down a Bill to banish the Earl. ; Mr. Swinso ; The Bill pass'd.
On the 13th of December, a Bill was sent down from the Lords for the Banishment of the Earl of Clarendon. Upon the reading of which, several Objections were made; and it being alledg'd, That it was an Abuse put upon the Commons by the Lords, and that a Bill of Attainder being propos'd, after some Debate the House pass'd this Vote; Resolved, That, this House taking notice of the Flight of the Earl of Clarendon, being under an Impeachment of High-Treason by this House, the King's Majesty be humbly desired to issue out his Proclamation for summoning the said Earl to appear by a Day, and to apprehend him in order to his Tryal: And that the Lords be sent to for their Concurrence in this Vote.' But the Lords, would not concur: and on the following Day deliver'd their Reasons, and particularly declared, 'That their Lordships upon Consideration of the whole State of Affairs, and of the Kingdom, have, upon Grounds of Prudence and Justice, thought fit, for Security of King and Kingdom, to proceed in a Legislative way against the said Earl; and have to that end pass'd and sent down a Bill of Banishment and Incapacity against him; with which their Vote was inconsistent.' This brought on a Debate concerning the Bill of Banishment, which some thought too little for the Crimes alledg'd, and others too great for the Cause in hand. Mr. Swinford spoke his mind freely, and among other things said, 'The Lords will neither secure nor summon him, but will condemn him unheard; and this they put you upon, which is against Honour and Justice, especially to do it upon Reason of State. The Power of Parliaments is indeed great; it hath no Bounds but the Integrity and Justice of Parliaments. If Reason of State be a Motive of Parliament to banish one Man, so it may be for many. If you go in this Legislative way, you bring upon your selves all the Dishonour of the Business; but the Lords will have some Excuse, which you cannot; for they look'd upon the Charge so slight, as not to imprison him. The Party is gone, apprehending, he says, the Fear of the Multitude, not of his Tryal: so the Lords not giving Credit to your Charge against him, he says, He flies not from Justice. Now, if upon this Bill you should banish him, it would be said, you could not make good your Charge, and therefore laid this Sentence upon him. The Precedent is also dangerous, if, having gone so far in a Judicial way, you should now go in a Legislative. If, upon Reason of State, Lords might be banish'd, it may be by Dozens: As you proceed justly, so you will be justified. After several Speeches on the 18th of December the Bill was read a third time in a thin House, and the Question being put for passing it, sixty-five were for it, and forty-two against it.
Acts passed, and the Parliament adjourn'd for seven Weeks.
On the 19th, the King by Commission pass'd that, and four other Bills, viz. 1. An Act for taking the Accounts of the several Sums of Money therein mentioned. 2. An Act for assigning Orders in the Exchequer without Revocation. 3. An Act to make Prize-Ships free for Trade. And, 4. An Act for settling Freedom and Intercourse of Trade between England and Scotland. Immediately after, Mr. Secretary Morrice delivered this Message from the King to the House of Commons; 'His Majesty having by a former Message acquainted you, That he intended an Adjournment to the Beginning of February; he doth now conceive, That Thursday the 6th of February is a convenient Day to which such an Adjournment may be made: And his M jesty is willing to adjourn to that time.' Accordingly the Parliament broke up, after it had sate a little above two Months, and without any Prorogation had now a Recess of above seven Weeks.
February 10. Both Houses met again at Westminster; when his Majesty made the following Speech from the Throne:
The King's Speech to both Houses.
My Lords and Gentlemen,
I Am glad to see you here again, to tell you what I have done in this Interval, which I am confident you will be pleas'd with, since it is so much for the Honour and Security of this Nation. I have made a League defensive with the States-General of the United Provinces, and likewise a League for an efficacious Mediation of Peace between the two Crowns of France and Spain; into which League, that of Sweden, by its Ambassador, hath offer'd to enter as a Principal.
I did not at our last Meeting move you for any Aid, tho' I lie under great Debts contracted in the last War; but now the Posture of our Neighbours abroad, and the Consequence of the new Alliance, will oblige me, for our Security, to set out a considerable Fleet to Sea this Summer; and because I must build more great Ships, and it is as necessary, that I do something in order to the fortifying some of our Ports: I have begun something my self in order to these Ends; but if I have not your speedy Assistance, I shall not be able to go through with it. Wherefore I do earnestly desire you to take it into your speedy Consideration; for the loss of a little time now may beget a Prejudice not to be repaired. And for the settling a firm Peace, as well at home as abroad, one thing more I hold my self oblig'd to recommend to you, at this present; which is, That you would seriously think of some course to beget a better Union and Composure in the Minds of my Protestant Subjects in Matters of Religion; whereby they may be induced not only to submit quietly to the Government, but also chearfully give their Assistance for the Support of it.'
The Commons deferred the Consideration of this Speech till after the Committee, appointed to enquire into the Miscarriages of the late War, had given in their Reports. In order to which the Duke of Albemarle, Prince Rupert, and even the Duke himself, laid each his own Account before them. That of the Duke of Albemarle being as follows:
Duke of Albemarle's State of the Affair at Chatham.
'I went early on Tuesday the 11th of June to Chatham, where I found scarce Twelve of eight hundred Men, which were then in the King's Pay, in his Majesty's Yards; and those so distracted with Fear, that I could have little or no Service from them. I had heard of thirty Boats, which were provided by his Royal Highness; but they were all, except five or six, taken away by those of the Yards, who went themselves with them, and sent and took them away by the Example of Commissioner Pett, who had the chief Command there, and sent away his own Goods in some of them. I found no Ammunition there, but what was in the Monmouth; so that I presently sent to Gravesend for the Train to be sent to me, which got thither about two of the clock next Day. After I had dispatch'd this Order, I went to visit the Chain, which was the next thing to be fortify'd for the Security of the River; where I found no Works for the Defence of it. I then immediately set Soldiers to work for the raising of two Batteries, for there were no other Men to be got; and when I employ'd them in it, I found it very difficult to get Tools; for Commissioner Pett would not furnish us with above thirty, till by breaking open the Stores we found more. I then directed Timber and thick Planks to be sent to the Batteries and Guns also, that they might be ready to be planted as soon as the Batteries were made; and in the next place I sent Captain Wintour with his Company to UpnoreCastle, which I took to be a Place very fit to hinder the Enemy from coming forwards, if they should force the Chain: And upon further consideration, tho' I had Horse near the Fort, lest the Enemy should land there, I commanded Sir Edward Scot, with his Company, for a further Strength of the Place; and gave him the charge of it, with Orders to let me know what he wanted for the Security thereof.
Having thus provided for Upnore, I consider'd where to sink Ships without the Chain, next to the Enemy, as a further Security to it. I found five Fire-ships, and the Unity upon the Place; and advising with Commissioner Pett, and the Master of Attendance, and the Pilot, how to do it; Pett told me, It was their opinion, that if three Ships were sunk at the narrow Passage by the Muscle-Bank, the Dutch Fleet could not be able to come up: And I, relying upon their Experience who best knew the River, gave orders accordingly for the doing of it. But when this was done, they said they wanted two Ships more, which I directed them to take and sink. After this, I order'd Sir Edward Spragg to take a Boat and found whether the sinking of those would sufficiently secure the Passage; which he did, and found another Passage (which the Pilot and Master of Attendance had not before observ'd) that was deep enough for great Ships to come in: I thereupon resolv'd to sink some Ships within the Chain, and provide some against there should be occasion. I went then to look after the other Ships and Batteries, and to see the Men and all things ready; but I found the Guns, which I had before order'd to be there, not yet come down; and instead of thick, oaken Planks, (of which there was good store in the Yards, as it afterwards appear'd) the Commissioner would only send Planks of Deal, saying, he had no other; which prov'd very prejudicial in the Use of them: For they were so weak, that at every shot the Wheels sunk through the Boards, which put us to a continual trouble to get them out.
'About Noon, before the Batteries were quite rais'd, the Enemy came on to the Place where our first Ships were sunk: I went on board the Monmouth with fifty Volunteers, and appointed Soldiers in other Ships to make the best defence we could, if they had proceeded; but they were so incumber'd before they could clear the way through the sunk Ships, and find another Passage, that the Tide was spent, and therefore they made no further advance that day; whereby we had time to consider what to do against the next Attempt. There were two Ships order'd to lie within the Chain, to be ready to sink, if occasion should be: And wanting one Ship more to sink in the middle between these two Ships, I that Night order'd the Sancta Maria, a great Dutch Prize, to be sunk in the deepest Place between the two foresaid Ships; and I judg'd it so necessary to be done, that I charg'd Commissioner Pett, and the Master of Attendance, on peril of their Lives, to do it by Morning; they having time enough before the Tide serv'd to provide things to carry her down. Commissioner Pett, who had receiv'd Orders from his Royal Highness on the 26th of March to remove the Royal Charles above the Dock, had, for about nine or ten Weeks, neglected those Orders: And, when I was getting all the Boats I could (for I wanted many) for carrying Materials for the Batteries, and Ammunition and Soldiers for the Defence of all our Places, he came and told me, He would carry her up that Tide, if he might have Boats, which I could not then spare: For if they were gone, all our Batteries must have been neglected, and I could not transport the Timber, Powder and Shot, and Men to them, to resist the Enemy the next day. And beside, it was advised at that instant, if the Dutch should have landed in the Marsh by the Crane, she might have been useful and have hinder'd them, having Guns on board Nevertheless, having notice shortly after, that there was neither Sponge, Ladle, Powder nor Shot in her, I sent Captain Millet, Commander of the Matthias, about ten in the Morning, with Orders to Commissioner Pett to carry her up as he could the next Tide; who pretended he could not then do it, because there was but one Pilot that would undertake it, and he was employ'd about sinking of Ships. And seeing she was not remov'd in the Morning, I myself spoke to Commissioner Pett in the Evening, in the presence of Colonel Mac-Noughton and Captain Mansfield, to fetch her off that Tide; but notwithstanding these Orders, the Ship was not remov'd, but lay there till the Enemy took her. On the same Morning, by break of Day, I went to see what was done about the Sancta Maria, and found Men towing her along to the place intended, and they had Time enough to do their Business: But soon after I had dispers'd my Orders to the Ships, I look'd and saw the Sancta Maria, by the Carelessness of the Pilots and Masters of Attendance, was run on ground, at which I was much troubled: For if that Ship had been sunk in the Place where I appointed, the Dutch Ships cou'd not have got beyond those of ours sunk within the Chain, and thereby none of the King's Ships within could have been destroyed, in regard that our GuardShips within our Batteries wou'd have hinder'd them from removing our sunk Ships.
'About ten a clock on Wednesday, the Enemy came on with Part of their Fleet, and two Men of War, five or fix Fireships, and some other Men of War seconding them. They first attempted the Unity, which was plac'd on the Right-Hand close without the Chain to defend it; and they took Her; and one of their Fireships struck upon the Chain, but it stop'd it. Then came another great Fireship, and with the Weight of the two the Chain gave way; and then the Ships came on in that very Passage where the Sancta Maria shou'd have been sunk. They burnt the two GuardShips, and took off the Royal Charles, wherein the Gunners and Boat-Swain did not do their Duty in firing her, tho' they say they attempted it twice, but the Fire did not take. This was all that I observ'd of the Enemies Action on Wednesday. Our next care was to provide against the Tide which serv'd the next Day: I enquir'd what had been done by Sir Edward Scott at Upnore, and sent him as many of those Things he needed as I cou'd get Boats to carry them to him, and sent likewise a Company more than was formerly order'd, to reinforce the Place in case of Landing; and then directed three Batteries to be made in the King's Yard; but cou'd not get a Carpenter, but two that were running away. I also planted that Night about fifty Cannon in several Places, besides those that came with the Train of Artillery, which were also planted; I staid all Night in the Place with the Men, and having no Money to pay them, all I could do or say was little enough for their Encouragement: for I had no Assistance from Commissioner Pett, nor no Gunners or Men to draw on the Guns, except the two Masters of Attendance.
'On Thursday Morning betimes, Upnore was in a pretty good Condition, and our Batteries ready: I got some Captains of Ships and other Officers, Sea-Volunteers, and others that came to me, to ply the Guns; and other Land-Volunteers did assist them to draw them on the Batteries. About Noon the Enemy came on again with two Men of War, and two Fireships, and some more Men of War following them: The first two anchored before Upnore, and play'd upon it whilst the Fireships pass'd by to the Great James, the Royal Oak, and the Loyal London. The two first Fireships burnt without any Effect; but the rest went up and burnt the three Ships mention'd: And if we had had but five or six Boats to cut off the Boats of the Fireships, we had prevented the burning of those Ships; but those being burnt, as soon as the Tide turn'd, they went back, and made no further Attempt. I had, in the Morning before this Action, receiv'd his Majesty's Command to return to London; but I thought it most for his Service to stay till the Attempt was over: And then, having left upon the Place the Earl of Carlisle, and the Earl of Middleton to command there till further Order, I came away about eight in the Evening, and by two in the Morning arriv'd at London'.
Some Miscarriages voted.
From this and other Examinations, the Commons discover'd and voted several Miscarriages in the late War, and particularly in the Expedition at Berghen; in the plundering the East-India Ships while the Dutch pass'd by; in the not setting out a sufficient Fleet last Year; in the separation of those that were out, so that they became useless; in the want of Provision and Ammunition in the Fleet, and in the Forts; in Payment of the Sea-Men by Tickets; in the want of Intelligence, and dividing the Fleets in the second Year of the War; in the Business of Chatham, &c. And they particularly resolved, 'That, notwithstanding his Majesty had eighteen thousand Men in Pay, in dispersed Ships in the Year 1667, there was not a sufficient Number of Ships left to secure the Rivers Medway and Thames.' They strictly examin'd into one Miscarriage as to the first Battle against the Dutch, in which it appear'd, 'That if the Orders of the Duke of York had been strictly observ'd, as they ought, in that Engagement, the whole Fleet of the Enemy had probably been destroy'd.' For this, Mr. Brunkard, a Member of the House, was accus'd of giving false. Orders to Sir John Harman to flacken Sail, while the Duke was reposing himself, and when they were pursuing the Enemy with the utmost Advantage; for which Mr. Brunkard was both expell'd the House, and order'd to be impeach'd.
Commissioner Pett impeach'd.
The Miscarriage at Chatham was so conspicuous, that they thought they cou'd do no less than impeach Commissioner Pett for so great a Delinquency in that Affair: Accordingly they drew up Articles against him to this effect: 'I. That the said Peter Pett, being a Commissioner especially authoriz'd and entrusted with the Care of his Majesty's Yards, Stores and Provisions of the Royal Navy at Chatham, and having received Orders from the Duke of York about the 26th of March last, requiring him to bring up and moore his Majesty's Ship, the Royal Charles, and other Ships, did wilfully neglect and refuse so to do; whereby the said Ships were lost, and became a Prey to the Enemy. II. That his Majesty having upon the 11th of June last appointed the Duke of Albemarle to repair to Chatham, to secure all things against the Invasion of the Dutch; he the said Duke found the Royal Charles not brought up, but lying below in a Place of Danger; and having given Orders to the said Pett to cause the said Ship to be brought up as high as cou'd be into a place of Safety, the said Pett neglected the doing thereof. III. That Captain Brooks, one of his Majesty's Attendants at Chatham, knowing that the Duke had given express Orders to cause the Royal Charles to be brought up, did prepare Anchors and other Tackling ready for the same; and desir'd the said Pett to give Orders for his so doing, which he refus'd to do. IV. That the Duke of York having given Orders to the said Pett to provide thirty Boats for the Defence of the River and Navy, he did not only himself misemploy some of the said Boats for the removing some of his particular Goods, but suffer'd the rest to be likewise misemploy'd, and did also seize a boat belonging to Sir Edward Spragg; so, for want of these Boats, many of his Majesty's Ships were lost, and the Security of the rest hinder'd. V. That the Commissioners of his Majesty's Navy, having signify'd to him on the 4th of June, that the Dutch were our, and given him special Charge to command all Captains on Land to their Ships, and to be vigilant in the rest of the Charge committed to him; he was so negligent, that of eight hundred Persons, which were under his Care and Command, when the Duke of Albemarle repaired thither, there were not above ten ready upon the Invasion of the Enemy. VI. That the said Duke, having appointed Soldiers to raise Batteries for the Defence of the Navy, He, to obstruct the Service, refused to give them the Number of Tools required, notwithstanding he had a sufficient Quantity in his Majesty's Stores, as it appear'd when those Stores were broke open. VII. That the said Duke having sent Orders to him to send out of his Majesty's Yards some Oaken Planks for his Platforms and Batteries, he sent only Deal Boards, which were prejudicial to the Service, notwithstanding that there were in his Majesty's Yards several Oaken Planks sit for that Service.' For all which Crimes and Misdemeanors they demanded Justice and condign Punishment, &c. at the Bar of the Lords.
And likewise Sir William Penn.
Not satisfied with this Impeachment, by means of some Discoveries and Informations, the Commons found and singled out Sir William Penn, another of his Majesty's Commissioners, and drew up Articles against him to this Purpose: 'I. Whereas in September 1665, the Golden Phænix, and the Slothany, two Dutch Ships, were taken at Sea as Prize, by his Majesty's Fleet under the Earl of Sandwich, in which the said Sir William Penn was then Vice-Admiral; he the said Sir William, contrary to his Duty, &c. did conspire with several Persons to open the Holds of the said Ships, before Judgment pass'd in the Admiralty Court, and from thence imbezzled great Quantities of rich Goods, whereby his Majesty was defrauded of above an hundred and fifteen thousand Pounds. II. The said Sir William, in pursuance of the Conspiracy, did about the same time repair on board the Prize-Ship the Slothany, with Sir William Berkley, Vice-Admiral under his Command, and did there give Orders to Captain Waerden, to whose Charge the said Ship was committed, to follow the Directions of Sir William Berkley; who thereupon broke open the Hold of the said Ship, and took out several rich Goods of great Value, after it was clos'd and seal'd up, and by the Assistance of Sir William Penn, who sent several Men on board for that purpose. III. He the said Sir William got a considerable Part of the Goods into his possession, and shortly after did sell divers Parcels of the said Goods, and further warranted the Sale thereof. IV. The better to colour the said Fraud and Imbezzlement, Orders were obtain'd from the Earl of Sandwich for distributing some part of the said Goods among several Officers, whereof Sir William was Chief, to be submitted, as was pretended, to his Majesty's further Pleasure, tho' Sir William well knew the Orders of the Earl of Sandwich were void in every respect; And afterwards a Warrant for distributing the Goods was duly procured from his Majesty; whereas the said Sir William had, before that, possess'd himself of divers of the Goods; and, over and above, did dispose of a further quantity of Goods than was contain'd in the Orders of the Earl of Sandwich or his Majesty's Warrant, to the Value of above two thousand Pounds.' For all which Crimes and Misdemeanors the Commons likewise demanded Judgment, &c. of the Lords.
The King's Messages to the Commons, to hasten the Supply. ; Another Message. ; They petition the King for a Proclamation against Conventicles.
Mean while, the King, believing these Proceedings and Impeachments retarded the Supplies he had demanded, sent no less than three Messages, to bring back the Stream of Business to his own favourite Channel; the first of which, was in these Words: 'His Majesty hath been unwilling hitherto to interrupt you in your Proceedings; but, considering the Posture in which his Neighbours now are, and that the Spring is already so far advanc'd, and that his Allies (as they have great Cause) press his Majesty to hasten his Preparations, he holds it absolutely necessary, in respect of the Safety as well as the Honour of the Nation, that a Fleet be set forth with all speed, and that Course be taken for fortifying his Ports, and building more Ships: And therefore he doth again earnestly recommend it to you, forthwith to provide for such a Supply as these Occasions shall require: And because you have not yet had Satisfaction upon the Bill of Accounts of the former Supply, his Majesty is very willing that this be collected and issu'd for those Purposes, by such Persons only as you shall think fit.' The second and the third Message were only to enforce this; only in the last he let them know that he design'd to put a period to this Session on the 4th of May. But finding this Design not so well relish'd, he sent a fourth Message to them on the 24th of April, in these Words: 'His Majesty by his former Message thought fit to acquaint you, That he intended the present Session of Parliament should determine on the 4th of May; but, finding the Proceedings in many important Businesses, now under agitation, would be lost, if there should be a Session; and that many things not yet foreseen may happen to induce him to call you together again before Winter, hath now thought fit to acquaint you, That he intends only an Adjournment for three Months; and desires you therefore to perfect the Bills for Supplies, and such others as may be made ready by the said 4th of May, so that he may then give his royal Assent to them before the Adjournment.' The House notwithstanding proceeded with the Business that lay before them; and especially the Informations they receiv'd from some Counties, particularly Staffordshire, of the insolent Carriage and Abuses committed by Persons in several Places, in interrupting and disturbing of Ministers in their Churches, and holding Meetings contrary to Law. In consequence of which, after a solemn Debate and Resolution, they made and presented an humble Petition to his Majesty, 'That he would issue out his Proclamation for enforcing the Laws against Conventicles; and that Care might be taken for the Preservation of the Peace against all unlawful Assemblies of Papists and Nonconformists.' The King thought himself oblig'd to comply with his Commons, and accordingly gave this Answer; 'I will issue forth my Proclamation according to your desire; adding withal, And I do not doubt but you will take the second Part of my Speech into Consideration, according to the Vote.'
A Difference between the two Houses.
About this time, a Difference happen'd between the Lords and Commons, occasion'd by Mr. Skinner a considerable Merchant of London, who, having receiv'd great Damages from the East-India Company, had brought the Matter by Petition into the House of Lords originally, by whom he was reliev'd in 5000 Pounds Cost. The Commons hearing of this, after a Debate, came to these Votes and Resolves on the 2d of May: '1. That the Lords taking cognizance of the Matter set forth and contain'd in the Petition of Thomas Skinner Merchant, against the Governor and Company of Merchants trading to the East-Indies, concerning the taking away the Petitioner's Ship and Goods, and assaulting his Person, and their Lordships over-ruling the Plea of the said Governor and Company, the said Cause coming before their House originally, only upon the Complaint of the said Skinner, being a Common-Plea, is not agreeable to the Law of the Land; and tending to deprive the Subject of his Right, Ease and Benefit due to him by the said Laws. 2. That the Lords taking coguizance of the Right and Title of the Island in the Petition mention'd, and giving Damages thereupon against the said Governor and Company, is not warranted by the Laws of this Kingdom. 3. That the said Thomas Skinner, in commencing and prosecuting a Suit by Petition in the House of Lords against the Company of Merchants trading to the East-Indies (wherein several Members of this House are Parties concern'd with the said Company, in particular Interests and Estates) and in procuring Judgment therein, with Directions to be serv'd upon the Governor, being a Member of this House; or upon the Deputy-Governor of the said Company, is a Breach of the Privilege of this House.' In conclusion, they order'd the said Mr. Skinner, for so acting, to be taken into Custody of the Serjeant at Arms.
The Votes of the Commons upon it.
The East-India Company having petition'd the Commons, as well as Mr. Skinner had the Lords, the Commons after their three Votes, further Resolved, 'That the Petition of the Merchants trading to the East-Indies, and the two first Votes of this House now passed, relating to the Jurisdiction of the Lords, be deliver'd by a Message to the Lords Bar, with Reasons for enforcing the said Votes.' This occasion'd two or three Conferences with the Peers; in one of which, the Duke of Buckingham deliver'd the following Speech:
Duke of Buckingham's Speech, at a Conference with the Commons.
'Gentlemen of the House of Commons, I am commanded by the House of Peers, to open to you the matter of this Conference; which is a Task I could wish their Lordships had been pleased to lay upon any body else, both for their own sakes and mine: Having observed, in that little Experience I have made in the World, there can be nothing of greater difficulty, than to unite Men in their Opinions, whose Interests seem to disagree.
'This Gentlemen, I fear is at present our Case; but yet I hope when we have a little better considered of it, we shall find that a greater Interest does oblige us, at this time, rather to join in the Preservation of both our Privileges, than to differ about the Violation of either.
'We acknowledge it is our Interest to defend the Right of the Commons, for should we suffer them to be oppressed, it would not be long before it might come to be our own Case; and I humbly conceive it will also appear to be the Interest of the Commons, to uphold the Privilege of the Lords, that so we may be in a Condition to stand by and support them.
'All that their Lordships desire of you upon this Occasion, is, That you will proceed with them as usually Friends do, when they are in dispute one with another; that you will not be impatient of hearing Arguments urged against your Opinions, but examine the weight of what is said, and then impartially consider which of us two are the likeliest to be in the wrong.
'If we are in the wrong, we and our Predecessors have been so for these many hundreds of Years, and not only our Predecessors, but yours too: This being the first time that ever an Appeal was made, in point of Judicature, from the Lords House to the House of Commons. Nay, these very Commons, which turned the Lords out of this House, though they took from them many other of their Privileges, yet left the constant Practice of this till the very last day of their Sitting; and this will be made appear by several Precedents these noble Lords will lay before you, much better than I can pretend to do.
'Since this Business has been in agitation, their Lordships have been a little more curious than ordinary, to inform themselves of the true Nature of these Matters now in question before us; which I shall endeavour to explain to you as far as my small Ability, and my Aversion to hard Words, will give me leave: for howsoever the Law, to make it a Mystery and a Trade, may be wrapt up in Terms of Art, yet it is founded in Reason and is obvious to common Sense.
'The Power of Judicature does naturally descend, and not ascend; that is, no inferior Court can have any Power which is not derived to it from some Power above it.
'The King is by the Laws of this land, Supreme Judge in all Causes Ecclesiastical and Civil. And so there is no Court, high or low, can act but in subordination to him; and though they do not all issue out their Writs in the King's Name, yet they can issue out none but by virtue of some Power they have received from him.
'Now every particular Court has such particular Power as the King has given it, and for that reason has its Bounds: But, the highest Court in which the King can possibly sit; that is, his supreme Court of Lords in Parliament, has in it all his judicial Power, and consequently no Bounds, I mean no Bounds of Jurisdiction; for the highest Court is to govern according to the Laws as well as the lowest.
'I suppose none will make a question, but that every Man and every Cause is to be tried according to Magna Charta; that is, by his Peers, or according to the Laws of the Land. And he that is tried by the Ecclesiastical Courts, the Court of Admiralty, or the high Court of Lords in Parliament, is tried as much by the Laws of the Land, as he that is tried by the King's Bench, or Common-Plea.
'When these inferior Courts happen to wrangle among themselves, which they must often do by reason of their being bound up to particular Causes, and their having all equally and earnestly a Desire to try all Causes themselves, then the supreme Court is forced to hear their Complaints, because there is no other Way of deciding them. And this, under favour, is an original Cause of Courts though not of Men.
'Now, these original Causes of Courts, must also of necessity induce Men, for saving of charges, and dispatch sake, to bring their Causes originally before the Supreme Court. But then the Court is not obliged to receive them, but proceeds by Rules of Prudence, in either retaining or dismissing them as they think fit.
'This is, under favour, the Sum of all that your Precedents can shew us, which is nothing but what we practise every day; that is, that very often, because we would not be molested with hearing too many particular Causes; we refer them back to other Courts; and all the Argument you can possibly draw from this, will not, in any kind, lessen our Power, but only show an Unwillingness we have to trouble ourselves often with Matters of this Nature.
'Nor will this appear strange, if you consider the Constitution of our House, it being made up partly of such whose Employments will not give them Leisure to attend the hearing of private Causes, and entirely of those that can receive no Profit by it.
'And the truth is, the Dispute at present is not between the House of Lords and the House of Commons, but between us and Westminster-Hall. For as we desire to have few or no Causes brought before us, because we get nothing by them, so they desire to have all Causes brought before them for a Reason a little of the contrary Nature.
'For this very Reason, it is their Business to invent new ways of drawing Causes to their Courts, which ought not to be pleaded there. As for Example, this very Cause of Skinner that is now before us (and I do not speak this by rote, for I have the Opinion of a reverend Judge in the Case, who informed us of it the other day in the House) they have no way of bringing this Cause into Westminster-Hall but by this Form; the Reason and Sense of which I leave you to judge of.
'The Form is this, that, instead of speaking as we ordinary Men do that have no Art, that Mr. Skinner lost a Ship in the East-Indies; to bring this into their Courts, they must say, that Mr Skinner lost a Ship in the East-Indies, in the Parish of Islington, in the County of Middlesex.
'Now some of us Lords, that did not understand the Refinedness of this Style, began to examine what the Reasons of this should be; and so we found, that, since they ought not by right to try such Causes, they are resolved to make bold, not only with our Privileges, but the very Sense and Language of the whole Nation.
'This I thought fit to mention, only to let you see that this whole Cause, as well as many others, could not be try'd properly in any Place but at our Bar; except Mr. Skinner would have taken a fancy to try the Right of Jurisdictions between Westminster-Hall and the Court of Admiralty, instead of seeking Relief for the Injuries he had received, in the Place only where it was to be given him.
'One thing I hear is much insisted upon, which is the Tryal without Juries; to which I could answer, that such Tryals are allowed of in the Chancery and other Courts, and that when there is Occasion for them we make use of Juries too, both by directing them in the King's-Bench, and having them brought up to our Bar.
'But I shall only crave leave to put you in mind, that if you do not allow us in some Cases to try without Juries, you will then absolutely take away the Use of Impeachments, which I humbly conceive you will not think proper to have done at this Time.'
The Votes of the House in opposition to the Lords.
In the Close of this Conference, the Lords declaring the Company's Petition to the other House scandalous &c. this rais'd such a Ferment there, as produc'd the following new Votes and Resoives; as, 1. 'That the Petition of the EastIndia-Company to this House, touching the Proceedings of the House of Lords, in the Case of Thomas Skinner, is not seandalous. 2. That the Delivery of the said Petition of the East-India Company to the House, and the Entertainment thereof, and see Proceedings and Votes of this House thereupon was no Breach of the Privilege or Encroachment upon the Jurisidiction of the House of Lords: but very proper and fit for this House, without Breach of the fair Correspondence, which ought to be between the two Houses. 3. That a Message be sent to the Lords to acquaint them, That this House doth take notice of the Desire of the Lords at the last Conference, For a good Union to be kept between both Houses: And it is the opinion of this House, that the best Expedient to preserve such an Union is, That all Proceedings be forhorn upon the Sentence and Judgement of the Lords in the Case of Thomas Skinner against the East-India Company; and that Sir Andrew Riccard, Sir Samuel Barnardiston, Mr. Rewland Gwyn, and Mr. Christopher Boone be set at liberty; this House being unsatisfied with their Lordships Reasons offer'd at the last Conference.' Last of all, after a long Debate, they resolv'd, 'That whosoever shall be aiding or assisting in putting in execution the Order or Sentence of the House of Lords, in the Case of Thomas Skinner against the East-India Company, shall be deem'd a Retrayer of the Rights and Liberties of the Commons of England, and an Infringer of the Privileges of this House.
They had no sooner finish'd this Vote, which was on the 8th Day of May, but the King, by the Usher of the BlackRod, sent for them to the House of Peers, where he pass'd these following public Bills: 1. An Act for raising Three Hundred and Ten Thousand Pounds, by an Imposition on Wines and other Liquors. 2. An additional Act against the Importation of Foreign Cattle. 3. An Act for proceeding to Judgment on Writs of Error brought in the Exchequer. 4. An Act for giving liberty to buy and export Leather, and Skins tanned or dressed. 5. An Act for the better Payment of Monies received for the Use of the Crown. 6. An Act for the Increase and Preservation of Timber within the Forest of Dean. 7. An Act to regulate the Trade of Silk-throwing. Having pass'd these, and some private Bills, his Majesty declar'd, 'That it was his pleasure, that the two Houses be adjourn'd till the 11th of August; that, if he could so order his Affairs, that they might forbear their assembling at that time, when their being in the Country would be so necessary for their private Occasions, he would give timely Notice, that they might spare Attendance.'