The History and Proceedings of the House of Commons: Volume 1, 1660-1680. Originally published by Chandler, London, 1742.
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The fourteenth Session of the Second Parliament.
On the 13th Day of April both Houses of Parliament met at Westminster, according to a subsequent Prorogation, after a Récess of almost fourteen Months. When the King open'd the Session with the following Speech from the Throne to both Houses:
The King's Speech to both Houses.
'My Lords and Gentlemen,
The principal End of my calling of you now, is to know what you think may be yet wanting to the Security of Religion and Property, and to give myself the Satisfaction of having used the utmost of my Endeavours to procure and settle a right and lasting Understanding between us: For I must tell you, I find the contrary so much labour'd, and that the pernicious Designs of ill Men have taken so much place under specious Pretences, that it is high time to be watchful in preventing their Contrivances; of which this is not the least, That they wou'd, by all means they can advise, make it unpracticable any longer to continue this present Parliament For that reason, I confess, I cannot think such have any good Meaning to Me: And therefore when I consider how much the greatest part of this Parliament has either Themselves or Fathers, given me Testimonies of their Affections and Loyalty, I shou'd be extreme loth to oblige those Enemies, by parting with such Friends: And they may be assur'd, That none shall be able to recommend themselves to Me by any other Way, than their good Services. I have done as much on my part as was possible, to extinguish the Fears and Jealousies of Popery; and will leave nothing undone that may shew the World my Zeal to the Protestant Religion, as it is establish'd in the Church of England, from which I will never depart.
'I must needs recommend to you the Condition of the Fleet, which I am not able to put into that Estate it ought to be, and which will require so much Time to repair and build, that I shou'd be sorry to see the Summer (and conscquently a whole Year) lost, without providing for it. The Season of the Year will not permit any long Session; nor wou'd I have call'd you now, but in hopes to do something that may give Content to all my Subjects, and to lay before you the Consideration of the Fleet; for I intend to meet you again in Winter. In the mean time, I earnestly recommend to you all, such a Temper and Moderation in your Proceedings, as may tend to unite us all in Council and Affections, and disappoint the Expectations of those, who can hope only, by violent and irregular Motions, to prevent the bringing this Session to a happy Conclusion. The rest I leave to my Lord-Keeper.'
The Lord Keeper Finch's Speech.
Accordingly the Lord-Keeper proceeded thus; 'My Lords, &c. The Solemnity of this Day's appearance is equal to the Weight and Importance of the Occasion: The Matters to be treated of, deserve no less than an Assembly of the Three Estates, and a full Concourse of all the Wise and Excellent Persons who bear a Part in this great Council, and do constitute and compleat this high and honourable Court.—His Majesty begins with the Consideration of Religion; He sees it is the first Thing in all your Thoughts, and you cannot but see that it hath been, and is still, the first and principal part of his Care. He hath also considered Religion, first in general, as it is Protestant, and stands in opposition to Popery: And upon that account it is that he hath awaken'dall the Volumes of our Laws against the Papists: There is not one Statute extant in all the Volumes of our Laws, but his Majesty hath now put in a way of taking its full Course against them. And upon this account also it is, That in a League lately renew'd with a Protestant Crown, his Majesty hath made it one Article of that League, that there shall be a mutual Defence of the Protestant Religion. His Majesty hath consider'd Religion again more particularly, as it is the Protestant Religion establish'd by Law in the Church of England; He sees that, as such, it is not only best suited to the Monarchy, and most likely to defend it, but most able to defend itself against the Enemies of all Reformation: And therefore upon this account it is that his Majesty, with equal and impartial Justice, hath revived all the Laws against Dissenters and Nonconformists; but not with equal Severity: For the Laws against the Papists are edg'd, and the Execution of them quicken'd by new Rewards propos'd to the Informers: Those against Dissenters are left to that Strength which they have already. Both these, and all other Laws whatsoever, are always understood to be subject to the Pleasure of a Parliament, which may alter, amend, or explain them as they see cause, and according with public Convenience. For when we consider Religion in Parliament, we are suppos'd to consider it as a Parliament shou'd do, and as Parliaments in all Ages have done; That is, as it is a Part of our Laws, a Part, and a necessary Part of our Government. For as it works upon the Conscience, as it is an inward Principle of the Divine Life by which good Men do govern all their Actions, the State has nothing to do with it, 'tis a thing which belongs to another Kind of Commission than that by which we sit here.—
'In the next place, the King hath thought fit to direct your Considerations upon the Safety and Honour of the State; both which are then best provided for, when we keep up the Strength and Reputation of our Fleet. It is not altogether the natural Decay of Shipping, no nor the Accidents of War, that have lessen'd our Fleet, tho' something may be attributed to both these; but our Fleet seems rather to be weakened for the present, by being out-grown and out-built by our Neighbours.' Then proceeding to discourse of the Laws in general, he told them, ' In making of Laws therefore it will import us to consider, That too many Laws are a Snare, too few are a Weakness in the Government; too gentle are seldom obey'd, too severe are as seldom executed; and Sanguinary Laws are for the most part either the Cause or the Effect of a Distemper in the State. To establish this State there seems not to need many Laws; some will always be wanting: And tho' all that is wanting shou'd not now be finish'd, yet whatever shall remain unfinish'd may be perfected in Winter, at which time we have a gracious Intimation from his Majesty, that we shall meet again.' Then, speaking of the present Happiness of the Nation, he proceeded thus: 'We are newly gotten out of an expensive War, and upon Terms more honourable than ever. The whole World is now in Peace with us; all Ports are open to us, and we exercise a free and uninterrupted Traffic through the Ocean: And we are reaping the Fruits of all this Peace by a daily Improvement of our Trade, and the Encrease of our Shipping and Navigation. Our Constitution seems to be so vigorous and strong, that nothing can disorder it, but ourselves. No Influences of the Stars, no Configurations of the Heavens are to be fear'd, so long as these two Houses stand in a good Disposition to each other, and both of them in a happy Conjunction with their Lord and Sovereign. Why shou'd we doubt it? Never was Discord more unseasonable. A Difference in Matters of the Church wou'd gratify the Enemies of our Religion, and do them more Service than the best of their Auxiliaries. A Difference in Matters of State wou'd gratify our Enemies too, the Enemies of our Peace, the Enemies of this Parliament, that hope to see, and practise to bring about, Revolutions in the Government. They well understand, That the best Health may be destroy'd by too much Care of it; an anxious, scrupulous Care, a Care that is always tampering; a Care that labours so long to purge all ill Humours out of the Body, that at last it leaves neither good Blood nor Spirits behind. In like manner there are two Symptoms which are dangerous in every State, and of which the Historian hath long since given us Warning: One is, when Men do Quieta movere; when they stir those Things or Questions which are, and ought to be in Peace; and, like unskilful Architects, think to mend the Building by removing all the Materials which are not plac'd as they wou'd have them. Another is, Cum Res parvæ magnis Motibus aguntur; When Things, not of the greatest Moment, are agitated with greatest Heat; and as much Weight is laid upon a new, and not always very necessary Proposition, as if the whole Sum of Affairs depended upon it.—
'My Lords and Gentlemen, The King is far, insinitely far, from fearing any Excess of this kind here; He knows too well the Wisdom, the Honour, and the Loyalty of this great Assembly, to apprehend any kind of Error either in your Judgments, or your Affections. He does not only find himself safe, but he thinks himself arm'd too, while he is attended with such a Nobility, such a Gentry as this. You that were able to raise the King's Affairs, when they were in the lowest and most deplor'd Condition, will surely be able to keep them from any Relapse. You that were able to make this Government take root again, will surely be able to preserve it in a growing and flourishing Estate. Such Pilots need not fear a Storm! If you could, this Consideration alone were enough to support you, That you carry Cæsar and his Fortunes; you serve a Prince in whose Preservation Miracles are become familiar; a Prince in whose Style Dei Gratiâ seems not to be written by a vulgar Pen, but by the Arm of Omnipotence itself. Raise up then, by your Example, the Hearts and Hopes of all those whom ill Men have wrought upon to such a degree, as to cast them into a Sadness, and into a Despondency, which is most unreasonable. What the Romans scorn'd to do after the Battle of Cannæ, what the Venetians never did when they had lost all their Terra Firma; That Men are now taught to think a Virtue, and the Sign of a wise and good Man, Desperare de Republicâ. And all this in a time of as much Justice and Peace at home; As good Laws for the Security of Religion and Liberty; As good Execution of those Laws; As great Plenty of Trade and Commerce abroad, and as likely a Conjuncture of Affairs for the Continuance of these Blessings to us, as ever Nation prosper'd under. Confirm the Faith then of those that are made weak, by shewing them the Stedfastness of your Belief; give the King the Hearts of all his Subjects, by making him a Present of yours. Then will the King esteem himself a richer Prince than if he were possess'd of all the Treasures of the East: Then, tho' this Session should close in a few Weeks, yet it may be perpetual for the Fruit it shall produce, and for the Commemoration that will follow it. Then will this Year be a true Year of Jubilee; and we shall have nothing to wish or pray for in this World, but the blessed Continuance of his Majesty's long and happy Reign over us.
The Commons Address.
The first Step the House took after this, was to vote, 'Their humble and hearty Thanks to his Majesty for his gracious Promises and Assurances, explain'd in his said Speech, to preserve and maintain us in the Establish'd Religion, and our Properties according to Law, and for Calling us together at this time for that purpose.' Which being presented to the King in a full Body in the Banqueting House, his Majesty return'd this gracious Answer, 'That he had a great Considence in his House of Commons; and that the said House may be consident that he would always preserve them in the Establish'd Religion, and in their Liberties and Properties.' This did not hinder them however from an immediate Proceeding to a new Bill against the Growth of Popery; in debating of which they came to these three Re solves. 1. ' That in the Bill there be inserted a Clause for Payment of a considerable Reward to any Person that shall discover any Popish Priest, who, upon Trial, shall be prov'd to be so, to be paid by the Person to whom he shall be prov'd to have said Mass, or by such as have wittingly receiv'd, succour'd or entertain'd such Popish Priest. 2. That he shall be esteem'd to be a Popish Priest, who shall be prov'd to have said Mass, or officiated either in this Realm, or in any foreign Country, in the manner of a Priest, according to the Usage of the See of Rome, if such Priest be not reconciled to the Church of England; and that these Votes shall not prejudice the Laws now in being concerning Popish Priests. 3. That Penalties be laid on all that are prov'd to have remain'd with any such Popish Priest, when he shall be saying Mass, or officiating in the Manner of a Priest, according to the Usage of the See of Rome.' Shortly after, they added two Resolves more, viz. 1. ' That a Clause be inserted into the Bill, to regulate and restrain Mr. AttorneyGeneral to enter any Noli prosequi. 2. That another Clause be inserted for the more effectual Prosecution, and Levying of Penalties upon Popish Recusants.
Dr. Burnet's Information against the Duke of Lauderdale.
After they had shewn their Dislike and Resentment against the Papists and their Proceedings, they resolv'd to take notice of the Duke of Lauderdale, the only remaining Person in Favour, of the late Cabal. And to compleat their Accusation against him, they had the Testimony of Dr. Gilbert Burner, an eminent Scotish Divine, whohad formerly been intimate with his Grace, but, for good Reasons, had alter'd his Opinion of him, and his Actions. What he testify'd against this Minister was, ' That, coming into England, the first Saturday in September 1673, he went to visit the Duke of Lauderdale in his Lodgings in Whitehall, where the Duke and he discours'd of the Affairs of England and Scotland, and particularly of the Proceedings of Parliament concerning the Declaration for suspending Penal Laws in Matters Ecclesiastical: And being afterwards ask'd, Whether, if Scotland being call'd to assist the King, they would assist him or not, he answer'd, he thought they would not; but the Duke reply'd, He believ'd they would, and that his coming into England would bring a great many. That the Duke asking him of the Affairs of Scotland, he answer'd, The People in Scotland that were at such a distance, could not imagine what to think of the King's Speech and Declaration. Whereunto the Duke reply'd, Hinc illæ Lachrymæ! and that all had forsaken the King but himself and the Lord Clifford.
The Commons Address against the Duke of Lauderdale.
Upon which, and other Informations, the Commons drew up a particular Address against him to the King, which, after the Preamble, runs thus: 'Yet we find, upon serious Examination of the State of this Kingdom, That there is a great Jealousy arisen from some late Proceedings in the Hearts of your Subjects, That some Persons, in great Employment under your Majesty have fomented Designs contrary to the Interest both of your Majesty and your People, intending to deprive us of our ancient Rights and Liberties, &c. Among those who are at present employ'd under your Majesty, we have just Cause to accuse for a Promoter of such Designs the Duke of Lauderdale, lately created Earl of Guilford, because we have heard it testify'd in our House by several of our own Members, That, in the Hearing before the Council of the Case of Mr. Whaley, who had committed Mr. James contrary to your Majesty's Declaration of the 15th of March, 1671, He the said Duke of Lauderdale did openly affirm, in the Presence of your Majesty sitting in Council, and before divers of your Subjects attending there, That your Majesty's Edicts ought to be obey'd; for your Edicts are equal with Laws, and ought to be obey'd in the first place: thereby, as much as in him lay, justifying the said Declaration, and the Proceedings thereupon, and declaring his Inclinations to arbitrary Councils, in Terror of your good People. And we are farther confirm'd in this Opinion by late Acts of Parliament of a very strange and dangerous Nature, which we have observ'd amongst the printed Statutes of your Kingdom of Scotland; the first whereof was in the Third Session of the First Parliament held there under your Majesty, Cap. 25. and the other in your Majesty's second Parliament, Cap. 2. the like whereof was never past since the Union of the two Kingdoms, and are directly contrary to the Intention of an Act past here in the fourth Year of the Reign of King James, For the utter Abolition of all Memory of Hostility, and the Dependencies thereof between England and Scotland, and for the Repressing of Occasions of Discords and Disorders in Time to come; and of a like Act past about the same time in the Kingdom of Scotland. By force of which said late Acts, there is a Militia settled in that Kingdom of twenty thousand Foot and two thousand Horse, who are oblig'd to be in a Readiness to march into any Part of this Kingdom, for any Service wherein your Majesty's Honour, Authority and Greatness may be concern'd; and are to obey such Orders and Directions as they shall, from time to time, receive from the Privy-Council there. By colour of which general Words we conceive this Realm may be liable to be invaded under any Pretence whatsoever; and this hath been done, as we apprehend, principally by the Procurement of the said Duke of Lauderdale; he haying, all the time of these Transactions, been principal Secretary of the said Kingdom, and chiefly entrusted with the Administration of Affairs of State there, and himself Commissioner for holding the Parliament at the time of passing the latter of the said Acts, whereby the providing of the said Horse and Foot is effectually impos'd upon the said Kingdom, and that extraordinary Power vested in the Privy-Council there: And we conceive we have just Reason to apprehend the ill Consequences of so great and unusual a Power; especially when the Affairs of that Kingdom are manag'd by the said Duke, who hath manifested himself a Person of such pernicious Principles. We do therefore, in all Humility implore your sacred Majesty, considering how universal a Fame and Clamour of the said Misdemeanors runneth openly throughout this your Realm, that for the Ease of the Hearts of your People, who are possess'd with extraordinary Grief and Sorrow to see your Majesty thus abus'd, and the Kingdom endanger'd, your Majesty won'd graciously be pleas'd to remove the said Duke of Lauderdale from all his Employments, and from your Majesty's Presence and Councils for ever, as being a Person obnoxious and dangerous to the Government.'
The King's Answer.
After some Time of Consideration, the King return'd the following Answer to the House of Commons in Writing: ' His Majesty hath consider'd of the Address against the Duke of Lauderdale, and the Reasons accompanying it: As to the Acts of Parliament mention'd to have been pass'd in Scotland, his Majesty observes that the first of those Acts was in the Year 1663, which was long before the Duke of Lauderdale was his Majesty's Commissioner in that Kingdom; and the latter was in pursuance of the former. And as to the Words, by the Time of Mr. Whaley's Cause, his Majesty perceiving, that, if they had been spoken, they must have been spoken before the late Act of General Pardon: And his Majesty being sensible how great a Satisfaction and Security, the inviolable Preservation of the former Act of Indemnity and Oblivion hath been to all his Subjects; cannot but apprehend the dangerous Consequences of enquiring into any thing that hath been pardoned by any Act of General Pardon; left the Example might give Men cause to fear their Security under the Act of Oblivion.' This Answer was so little satisfactory to the Commons, that they afterwards resolv'd to draw up another Address against the Duke; but that, as well as many other Matters, proved abortive.
Proceedings against Lord Danby. ; Articles against the Earl of Danby.
The House proceeded to take the Lord Treasurer Danby's Conduct into Consideration, against whom they prepar'd the following Articles. I. 'That the Earl had overthrown the ancient Course and Constitution of the Exchequer, by perverting the Method of Receipts, in Payments and Accounts contrary to Law; whereby the King's Revenue is put into Confusion and a wastful Way of Expence, to the destruction of his Credit, and exposing his Treasure to private Bargains and Corruptions; and had engross'd to himself the Power of disposing all the King's Revenues; laying aside the Chancellor and Under-Treasurer of the Exchequer, whereby all Checks and Controlls are avoided. II. That a Suit of Law being intended about the Marriage of the Daughter of Sir Thomas Hyde, the said Earl caus'd one Mr. Brandley, a Principal Witness in the Cause, to be arrested by an extraordinary Warrant from one of the Secretaries of State, and to be kept for some time in close Custody; during which the Earl's Agents labour'd with Mr Brandley, by Threats and Promises, not to declare the Truth, and at Midnight he was brought and examin'd before the King in the Presence of the Earl; whereupon Mr. Brandley was induc'd to deliver in a Testimony against his own Knowledge and Conscience, he being then in duresse: And all this was done with an Intent to procure the said Heiress to be married to the Earl's second Son. III. That the Earl had receiv'd very great Sums of Money, besides the extraordinary Revenue, which had been wastfully spent; and far greater Sums than ever issu'd out for secret Service, without Account; the King's Debts remaining unpaid, the Stores unfurnish'd, and the Navy unrepair'd. IV. The Earl had violated the Rights and Properties of the People, by stopping, without Authorlty, those legal Payments due in the Exchequer. V. That tho' the Office of a Lord-Treasurer is always very full of necessary and great Employments, yet the Earl had also assum'd to himself the Management of the Irish Affairs, which before were always dispatch'd by the Secretaries, and pass'd in Council; thereby subtlely enabling himself the better to convert great Sums of Money out of the Irish Revenues to his own private Advantage. VI. That the Earl had procured great Gifts and Grants from the Crown, whilst under great Debts, by Warrants countersign'd by himself. VII. That on Decemb. 4, 1674, at the hearing of a Cause in the Treasury-Chamber, some Acts of Parliament, now in being, were urg'd against a Proclamation, and contrary to what his Lordship aim'd at; whereupon the Earl, in Contempt of the Law, utter'd this Arbitrary Expression, That a new Proclamation is better than an old Act. Upon his Lordship's Report to the Privy-Council, the Person in question being a Foreigner, and not obeying such Proclamation, but pursuing this Right at Law, was banish'd the Kingdom.' This was the Sum of their Accusation; but when the Articles were particularly and at several Times examin'd, they first struck out one, and then another, till, upon the whole, they concluded that there was not sufficient Ground for an Impeachment against him.
An Address to the King for recalling the English Troops in the French Service. ; The King's Answer. ; A second Address.
After this, the House presented an humble Address to his Majesty for the speedy recalling all his Subjects home out of the French King's Service; and for hindering any more from going over for that Service for the future. To which the King return'd this Answer in Writing: 'That such Troops of his Subjects that were in the most Christian King's Service, before the late Treaty made with the States-General of the United Provinces, and were not by that to be recall'd, as they are at present become inconsiderable in their Number; so his Majesty conceives they cannot be recall'd, without derogating from his Honour and Dignity, and to the prejudice of the Peace he now enjoyeth; which he hath publicly profess'd to maintain with all his Neighbours. But as to the prohibiting the going over of any more, his Majesty will renew his Proclamation, and use all other effectual Means both to forbid and hinder it.' This occasion'd a second Address, that the Officers of the several Ports do take care for hindering any more going over for that Service for the future.
About this Time, the grand Debate, between the two Houses concerning Privileges in the Case of Dr. Shirley and Sir John Fagg, took place, which is as follows:
Proceedings in the House of Commons, on an Appeal being brought in the House of Lords, by Dr. Shirley, against Sir John Fagg, and others their Members; May, 1675, 27 Car. II.
Sir John Fagg's Complaint.
M Artis, 4 Maij, 1675. Sir John Fagg, Bart this Day informing the House, that he was summon'd to appear to a Petition in the House of Lords, a Committee was thereupon appointed to search for Precedents to that purpose.
Mercurij, 5 Maij. Resolved, That a Message be sent to the Lords to acquaint them that this House hath received Information, that there is a Petition of Appeal depending before them, at the Suit of Thomas Shirley Esq; against Sir John Fagg, a Member of this House; to which Petition he is, by order of the House of Lords, directed to answer on Friday next: And to desire the Lords to have a Regard to the Privileges of this House; and that Sir Trevor Williams do go up with the Message to the Lords.
Sir Trevor Williams reports, that he had attended the Lords with the Message of this House, concerning Sir John Fagg; and the Lords will return an Answer by Messengers of their own.
A Message from the Lords.
Veneris, 7 Maij. A Message from the Lords by Sir William Beversham and Sir Samuel Clarke.
Mr. Speaker, the Lords have consider'd of the Message received from the House of Commons, concerning Privilege in the Case of Sir John Fagg, and do return this Answer, That the House of Commons need not doubt, but that the Lords will have a Regard to the Privilege of the House of Commons, as they have of their own.
Sabbati, 8 Maij. A Committee was appointed to inspect the Lords Journals, to see what Entries are therein made against Sir John Fagg, a Member of this House, and to report the same.
Mercurij, 12 Maij. Dr. Thomas Shirley ordered to be sent for in Custody, to answer his Breach of the Privileges of this House, in prosecuting a Suit by Petition of Appeal in the Lords House, against Sir John Fagg, a Member of this House, during the Session and Privilege of Parliament.
And a Committee is also to inspect the Lords Journals, to see what hath been done in like Cases; and the said Sir John Fagg is ordered not to proceed, or make any Answer to the said Appeal, without the Licence of this House.
Sir Thomas Lee's Report from the Lords Journals.
Veneris, 14 Maij. Sir Thomas Lee reports from the Committee appointed to inspect the Journals of the House of Lords, and the Entries therein, in the Case between Dr. Thomas Shirley and Sir John Fagg, a Member of this House, that the Committee had perused the Journals of the Lords House, and found the Entries to be as follow.
April, the 30th. 'Thomas Shirley, Esq; presented a Petition to the Lords.'
Ordered, 'That the said Sir John Fagg may have a Copy of the said Petition and put in his Answer thereunto in Writing, on Friday the 7th Day of May next, at Ten of the Clock in the Forenoon, if he thinks fit.'
May, the 5th. 'The Commons send a Message by Sir Trevor Williams: The Knights, Citizens, and Burgesses of the House of Commons, in Parliament assembled, have been informed, that there is a Petition of Appeal depending before their Lordships, at the Suit of Thomas Shirley Esq; against Sir John Fagg a Member of their House; to which Petition he is, by their Lordships Order, directed to answer, on Friday next, and desire their Lordships to take care of their Privileges.'
Answer. 'That this House have considered of their Message, and will send an Answer by Messengers of thei own.'
Ordered, 'That the Committee for Privileges do meet this Afternoon to consider of the Messages received from the House of Commons this Day, concerning Thomas Shirley Esq; and Sir John Fagg, a Member of the House, and search Precedents in the Case, and report to the House to-morrow Morning.'
May the 6th. The Earl of Berks reported, 'That the Committee of Privileges having met and considered of what was referred to them, in the Case between Thomas Shirley Esq; and Sir John Fagg, a Member of the House of Commons, and a Message from the House of Commons thereupon; have ordered him to report, that the Committee have found that the House did refer the Business of Mr. Hale and Mr. Slingsby, upon the like Message of the House of Commons, to the Committee of Privileges; who did report to the House, that it is the undoubted Right of the Lords in Judicature, to receive and determine in Time of Parliament, Appeals from inferior Courts, though a Member of either House be concerned, that there may be no Failure of Justice in the Land; and the House did agree with the Committee therein: And thereupon the Committee do humby offer to their Lordships, upon this Occasion, to take the same Course, and to insist upon their just Rights in this Particular, which their Lordships will be pleased to signify to the House of Commons, in such Manner as they shall think fit.'
The House agreed with the Committee in this Declaration, and ordered the same to be entered into the JournalBook of this House as their Declaration, viz.
'That it is the undoubted Right of the Lords in Judicature, to receive and determine, in time of Parliament, Appeals from inferior Courts, tho' a Member of either House be concerned, that there may be no Failure of Justice in the Land.'
Then it was moved that the former Answer sent to the House of Commons in the Case of Mr. Slingsby and Mr. Hale, might be given now to the House of Commons, in this Case of Sir John Fagg; and that the Declaration and Report, agreed to this Day, might be added to it.'
The Declaration aforesaid was read, and the question being put, Whether this shall be as a part of the Answer to be given to the House of Commons? It was resolved in the Negative.
The Answer returned formerly to the House of Commons, in the Case of Mr. Slingsby, and Mr. Hale, was in these Words: 'That the House of Commons need not doubt but that their Lordships will have a regard to the Privileges of the House of Commons, as they have of their own.'
The Question being put, Whether this Answer shall be now returned to the Message from the House of Commons? It was resolved in the Affirmative.
May the 7th, it was sent accordingly.
Maij 7. 'Whereas this Day was appointed for Sir John Fagg to put in an Answer to the Petition and Appeal of Thomas Shirley Esq; depending in this House, if he thought fit; the said Sir John Fagg appearing personally this Day at the Bar, and desiring longer Time to put in an Answer thereunto:
'It is thereupon ordered that the said Sir John Fagg hath hereby farther Time given him for putting in his Answer, till Wednesday next, being the 12th Day of this Instant May, at Ten o'Clock in the Forenoon.'
Maij 12. Sir John Fagg put in his Answer to the Petition of Mr. Shirley. A Debate arising thereupon, touching the Privilege of their House,
Resolved, &c. That the Appeal, brought by Dr. Shirley in the House of Lords against Sir John Fagg, a Member of this House, and the Proceedings thereupon, is a Breach of the undoubted Rights and Privileges of this House.
The House being informed, that the Warrant of this House for taking of the said Dr. Shirley into Custody, was forcibly taken away and detained from the Serjeant at Arms his Deputy, attending this House, by the Lord Mohun: And the Serjeant's Deputy being called in and examined as to the Matter of Fact, gave this Testimony:
That he found Dr. Shirley in the inner Lobby of the House of Lords, and that he came to him and desired to speak with him, and acquainted him, that he had a Warrant from the House of Commons to apprehend him, and desired to know whether he could shew him any Reason to excuse him, that he might not serve the Warrant on him: And that he likewise told him, that he would not execute the Warrant on him in that Place, but desired of him that he would go along with him freely; and that in case he would not, he would take his Opportunity in another place.
And that the said Lord Mohun coming in, in the mean time, required him to shew his Warrant; which he producing, the Lord Mohun laid hands on it, and held it so fast, that it was in danger of being torn; and that therefore he was forced to part with it, and desiring to have it again, the Lord Mohun refused it, but carried the Warrant into the House of Lords. That Dr. Shirley afterwards refused to go along with him, saying, that he was not then his Prisoner; and that, several Persons interposing, the Doctor escaped from him; and a Debate arising thereupon,
Resolved, That a Message be sent to the Lords to complain of Lord Mohun, for forcibly taking away and detaining the Warrant of this House, from the Deputy Serjeant at Arms, for taking of Dr. Shirley in Custody; and to demand the Justice of the Lords House against the said Lord Mohun.
And that the Lord Antram do go up to the Lords with the Message.
Dr. Shirley order'd to be taken into Custody.
Ordered, That Mr. Speaker do issue forth a new Warrant to the Serjeant at Arms attending this House, for apprehending Dr. Thomas Shirley, to answer his Breach of Privilege, for prosecuting a Suit by Petition of Appeal in the Lords House against Sir John Fagg, a Member of this House, during the Session and Privilege of Parliament.
Lord Antram's Report from the Lords.
Sabbati, 15 Maij, 1675. The Lord Antram reports from the Lords, that he had, in obedience to the Commands of this House, attended the Lords, and delivered the Message concerning the Lord Mohun's taking away, and detaining the Warrant for apprehending Dr. Shirley, and that the Lords had returned this Answer:
'Gentlemen of the House of Commons, The Lords have considered of your Message, and of the Complaint therein; and they return you this Answer, that they find the Lord Mohun hath done nothing but what is according to his Duty.
The House then resumed the Debate of the Matter concerning the Privileges of this House; and the Matter being debated,
Dr. Shirley's Appeal voted a Breach of Privilege.
Resolved, &c. That the Appeal, brought by Dr. Shirley in the House of Lords against Sir John Fagg, a Member of this House, and the Proceedings thereupon, is a Breach of the undoubted Rights and Privileges of the House of Commons; and therefore the Commons desire, that there be no farther Proceedings in that Cause before their Lordships.
A Conference desired with the Lords.
Ordered, That a Conference be desired with the Lords concerning the Privileges of this House, in the Case of Sir John Fagg; and that Sir Thomas Lee do go up to the Lords to desire a Conference.
A Message from the Lords.
A Message from the Lords by Sir Mondeford Bramston, and Sir William Glascock.
'Mr. Speaker, We are commanded to let this House know that the Lords spiritual and temporal, assembled in Parliament, having received a Warrant, signed Edward Seymour, which they have appointed us to shew you; and desire to know whether it be a Warrant ordered by this House: The matter of the Message being debated, the Question being put, that the Word unparliamentary be part of the Answer to the Lords Message, it passed in the Negative.
Resolved, That the Messengers be called in, and that this Answer be returned, that this House will consider of the Message.
The Messengers being called in, Mr. Speaker does acquaint them, that the House will consider of the Message.
Resolved, That the Message last received from the House of Lords, is an unparliamentary Message.
Resolved, That a Conference be desired to be had with the Lords, upon the Subject Matter of the last Message received from the House of Lords.
Resolved, That it be referred to Mr. Garraway, &c. to draw up Reasons to be offered at the said Conference.
Then the House being informed that there is a cause upon an Appeal brought up by Sir Nicholas Stoughton, against Mr. Onslow, a Member of this House, appointed to be heard at the Bar of the Lords House;
Resolved, That a Message be sent to the Lords to acquaint them, that this House has received Information, that there is a Cause upon an Appeal brought by Sir Nicholas Stoughton against Mr. Onslow a Member of this House, appointed to be heard at the Bar of the House, on Monday next; and to desire their Lordships to have regard to the Privileges of this House, and that Sir Richard Temple do go up with the Message to the Lords.
Ordered, That Mr. Onslow do not appear any farther in the prosecution of the Appeal brought against him by Sir Nicholas Stoughton, in the House of Lords.
Ordered, That Sir Nicholas Stoughton be sent for in Custody of the Serjeant at Arms attending this House, to answer his Breach of Privilege in prosecuting a Suit in the House of Lords against Arthur Onslow Esq; a Member of this House, during the Session and Privilege of Parliament.
Resolved, That whosoever shall appear at the Bar of the House of Lords, to prosecute any Suit against any Member of this House, shall be deemed a breaker and infringer of the Rights and Privileges of this House.
Sir Richard Temple.
Lunæ, 17 Maij, 1675. Sir Richard Temple reports, that the Person appointed had attended the Lords, and delivered the Vote of this House, concerning the Appeal brought by Dr. Shirley against Sir John Fagg.
Sir Thomas Lee's Report from the Committee.
Sir Thomas Lee reports, from the Committee appointed to draw up Reasons for the Conference to be had with the Lords, Reasons agreed by the Committee; which are as follow, viz
For that the Message is by way of interrogatory upon the Proceedings of the House of Commons in a Case concerning the Privilege of a Member of that House, of which they are proper Judges.
For that the Matter of the Message carries in it an undue Reslection upon the Speaker of the House of Commons.
For that the matter of the Message doth highly reflect upon the whole House of Commons, in their Lordships questioning that House concerning their own Orders; which they have the more Reason to apprehend, because, the Day before this Message was brought to them, the Warrant was owned by the Complaint of the House of Commons to their Lordships, that the same was taken and detained from a Servant of theirs, by a Peer; which imports, that the Question in that Message could not be for Information only, and so tends to interrupt that mutual good Correspondency, which ought to be preserved inviolably between the two Houses of Parliament.
Sir Richard Temple's Report from the Lords.
Martis, 18 Maij, 1675. Sir Richard Temple reports from the Lords, that he had attended their Lordships, according to the Command of this House, with the Message in the Case of Mr. Onslow, to which the Lords returned an Answer, which being in writing, was delivered at the Clerks Table, and read; and is as followeth:
'The Lords do declare, That it is the undoubted Right of the Lords in Judicature, to receive and determine in time of Parliament, Appeals from inferior Courts, though a Member of either House be concerned, that there may be no failure of Justice in the Land: And from this Right, and the Exercise thereof, their Lordships will not depart.
The Matter of the Lords Answer being debated,
Resolved, That it is the undoubted Privilege of this House, that none of their Members be summoned to attend the House of Lords, during the Sitting or Privilege of Parliament.
Resolved, That a Conference be desired with the Lords, upon the Privileges of this House, contained in the Lords Answer to the Message of this House, in the Case of Mr. Onslow.
Sir Henry Ford.
Ordered, That Sir Henry Ford do go up to the Lords, to desire a Conference upon the subject Matter of their Message, concerning the Warrant for apprehending Dr. Shirley.
Sir Thomas Lee.
Jovis, 20 Maij, 1675. Sir Thomas Lee reports, from the Committee appointed to draw up Reasons to be offered at the Conference to be had with the Lords upon the Privileges of this House, contained in the Lords Answer to the last Message of this House, in the Case of Mr. Onslow; which Reasons were twice read, and, with some alterations at the Clerks Table, (upon the question severally put) agreed to; which are as follow, viz.
Reasons to be offer'd to the Lords at the Conference.
1. That, by the Laws and Usage of Parliament, Privilege of Parliament belongs to every Member of the House of Commons, in all Cases except Treason, Felony, and breach of the Peace; which hath often been declared in Parliament, without any Exception of Appeals before the Lords.
II. That the Reason of that Privilege is, that the Members of the House of Commons may freely attend the public Affairs of that House, without disturbance or interruption, which doth extend as well to Appeals before the House of Peers, as to Proceedings in other Courts.
III. That, by the constant course and usage of Parliament, no Member of the House of Commons can attend the House of Lords, without the especial Leave of that House first obtained, much less be summoned or compelled so to do.
IV. If the Lords shall proceed to hear and determine any Appeal, where the Party neither can, nor ought to attend, such Proceedings would be contrary to the Rules of Justice.
V. That the not determining of an Appeal against a Member of the House of Commons, is not a Failure of Justice, but only a Suspension of Proceedings in a particular Case, during the Continuance of that Parliament which is but temporary.
VI. That in case it were a Failure of Justice, it is not to be remedied by the House of Lords alone, but it may be by Act of Parliament.
[Here Sir Thomas Littleton reported from the Committee appointed to prepare the farther Address of this House to his Majesty, for the recalling such of his Subjects as are in the French King's service: which the House defered the farther Consideration of till Wednesday next.]
Sir Trevor Williams's Report.
Then Sir Trevor Williams reports from the Lords, that he had attended, and desired a Conference with the Lords on the Privilege of this House, contained in the Lords Answer to the Message of this House, in the Case of Mr. Onslow: And that the Lords will return an Answer by Messengers of their own.
Mr. Powle's Report.
Mr. Powle reports, from the Conference had with the Lords upon the Subject Matter of the former Conference, concerning the Warrant for apprehending Dr'. Shirley, That the Lords had returned an Answer to the Reasons of this House, delivered at the former Conference, and are as follow:
The Lords Reasons.
'The Lords have appointed this Conference, upon the Subject Matter of the last Conference, and have commanded us to give these Answers to the Reasons and other Matters then delivered by the House of Commons.
'To the first Question, the Lords conceive that the most natural way of being informed, is by way of Question; and seeing a Paper here, which did reflect upon the Privileges of the Lords House, their Lordships would not proceed upon it, till they were assured it was owned by the House of Commons: But the Lords had no Occasion at that Time, nor do they now think fit, to enter into the Debate of the House of Commons being, or not being proper Judges in the Case concerning the Privilege of a Member of that House; their Lordships necessary Consideration, upon sight of that Paper, being only, how far the House of Commons ordering (if that Paper were theirs) the Apprehension of Dr. Shirley, for prosecuting his Appeal before the Lords, did entrench upon their Lordships both Privilege and undoubted Right of Judicature, in the Consequence of it, excepting all the Members of both Houses from the Judicature of this the Highest Court of the Kingdom; which would cause a Failure of that supreme Justice, not administrable in any other Court, and which their Lordships will never admit.
'As to the second Reason, the Lords answer, That they do not apprehend how the Matter of this Message is any reflection upon the Speaker of the House of Commons.
'To the third Reason, The Lords cannot imagine how it can be apprehended in the least to reflect upon the House of Commons, for the House of Peers, upon a Paper produced to their Lordships, in form of a Warrant of that House, whereof doubt was made among the Lords, whether any such thing had been ordered by that House, to enquire of the Commons whether such Warrant was ordered there or no? And, without such Liberty used by the Lords, it will be very hard for their Lordships to be rightly informed, so as to preserve a good Correspondence between the two Houses, which their Lordships shall endeavour; or to know when Warrants, in the Name of that House, are true or pretended: And it is so ungrounded an Apprehension, that their Lordships intended any Reflection in asking that Question, and not taking notice in their Message of the Complaint of the House of Commons owning that Warrant, that the Lords had sent their Message concerning that Paper, to the House of Commons, before the Lords had received the said Commons Complaint.
'But their Lordships have great Cause to except against the unjust and strained Reflection of that House upon their Lordships, in asserting that the Question in the Lords Message could not be for Information, as we affirm, but tending to interrupt the mutual Correspondence between the two Houses; which we deny, and had not the least Thought of.
'The Lords have farther commanded us to say, that they doubt not but the House of Commons, when they have received what we have delivered at this Conference, will be sensible of their Error, in calling our Message strange, unusual, or unparliamentary. Though we cannot but take notice, that their Answer to our Message, that they would consider it, was the first of that Kind that we can find to have come from that House.'
The Question being put, Whether the House be satisfied with the Reasons delivered by the Lords at the last Conference ? it passed in the Negative.
Resolved, That a free Conference be desired with the Lords upon the Matter delivered at the last Conference; and that the former Managers do attend, and manage the free Conference.
Friday, May 21. The House Resolved, on Wednesday next, to proceed in the farther Consideration of that part of the Message relating to Appeals from inferior Courts. Sir Trevor Williams was ordered to go up to the Lords, to desire a Conference upon the Privileges of this House, contained in their Answer to the Message touching Mr. Onslow's Case, which he accordingly did; and reports, that the Lords will return an Answer thereto by Messengers of their own.
May 27. A Message ordered to be sent to the Lords, to remind them of the former Message; and again to desire a Conference upon the Privileges of this House, in the Case of Mr. Onslow. And ordered the Matter of the Jurisdiction of the Lords, in Cases of Appeal, be taken into Consideration to-morrow Morning.
Sir Thomas Lee's Report from the Committee.
Veneris, 28 Maij, 1675. Sir Thomas Lee reports, from the Committee to whom it was referr'd, to draw up Reasons to be offered at a Conference to be had with the Lords, upon the Subject Matter of their Answer to the last Message of this House, in the Case of Mr. Onslow, several Reasons agreed by the said Committee: which he read in his Place, and afterwards delivered the same in at the Clerk's Table; where the same, being twice read, were, upon the Question, severally agreed unto, and are as follow, viz.
'For that the Commons desired a Conference upon their Privileges concerned by the Lords Answer to a Message sent to the Lords the 18th of May, in the Case of Mr. Onslow; their Lordships have not agreed to any Conference in the Case of Mr. Onslow, but have only agreed to a Conference concerning their Privileges in general, without reference to the Case of the said Mr. Onslow; which was the only Subject Matter of the desired Conference.
'The Limitation in the Lords Agreement to a Conference, with Proviso that nothing be offered at the Conference, that may any way concern their Lordships Judicature, is in effect a Denial of any Conference at all, upon the Subject on which it was desired: Which ought not to be; the Judicature which their Lordships claim in Appeals against a Member of the House of Commons, and the Privilege of that House, being in that Case so involved, that there can be no Conference upon the latter, without some way touching upon the former.
'That this Manner of agreeing to a Conference with any Limitation or Proviso, is against the Course of Proceedings betwixt the two Houses of Parliament, in coming to Conference; and doth seem to place a Power in the Managers of such Conferences to judge whether such Provisos be broken or not, and accordingly to proceed, or break off the Conference upon their own Judgments.'
Sir Leoline Jenkins's Report.
Lunæ, 31 Maij, 1675. (fn. 1) Sir Leoline Jenkins reports, that he had attended the Lords will the Message of this House, for a Conference upon the subject Matter of the Lords Answer to the last Message of this House, in the Case of Mr. Onslow; and that the Lords had sent Answer, that they would return Answer by Messengers of their own.
A Message from the Lords.
A Message from the Lords by Sir Mondeford Brampston, and Sir William Beversham.
'Mr Speaker, The Lords have commanded us to acquaint you, that they desire a Conference presently in the Painted-Chamber, with the House of Commons, upon their not coming to the Conference desired by them, on Thursday last, and by the Lords appointed to be at ten of the Clock in the Painted-Chamber, on Friday the 28th of this Instant May.'
The Messengers being withdrawn, and the Message debated, a present Conference upon the Question was agreed.
And the Messengers being called in, Mr. Speaker acquaints them, that the House had agreed to a present Conference.
Ordered, That the former Members, that were appointed to manage the former Conference, in the Case of Mr Onslow, do attend and manage this Conference.
Sir John Trevor's Report.
Sir John Trevor reports, from the Conference, that the Lords had declared the Intent of this Conference, to the effect following, viz. ' That the Lords have appointed this Conference, out of that constant Desire and Resolution they have to continue a fair Correspondence between the two Houses; which is of the Essence of parliamentary Proceedings.'
For this End their Lordships have commanded us to tell you, that they cannot but take Notice of the House of Commons failing to be, on Friday last, at a Conference desired by themselves and appointed by the Lords at ten of the clock in the Painted-Chamber.
That they conceive it tends to an Interruption of all Parliamentary Proceedings, and to evade the Right of the Lords' to appoint Time and Place for a Conference.
Ordered, That it be referred to the former Committee, who are appointed to draw up Reasons, to be offered at a Conference to be had with the Lords upon the subject Matter of their Answer, to the Message of this House, in the Case of Mr Onslow, to consider of the Matter delivered by the Lords at the last Conference; and to prepare and draw up farther Reasons, to be offered at another Conference. And that the Committee do meet this Afternoon at five of the Clock in the Speaker's Chamber. And Mr. Serjeant Maynard, and Mr. Sawyer, are to take notice to attend the same.
Sir Thomas Lee's Report.
Martis 1 Junij, 1675. Sir Thomas Lee reports, from the Committee appointed to inspect the Journals of the House of Lords, and to see what Proceedings have been entred, in the Case of Mr. Dalmahoy, and Mr. Onslow, that they had inspected the Lords Journals as to the Case of Mr. Dalmahoy, and collected what Proceedings had been in that Case; but had no Opportunity or Time yet to do it in the Case of Mr. Onslow: Which Proceedings being reported, were read, and delivered in at the Clerk's-Table; and are as follow, viz. 19 April, 1675.
The Appeal brought by Crispe and Crispe, complaining against a Decree in Chancery made, wherein Mr. Dalmahoy is recited to be one of the Petitioners; Cranbourne and Bowyer are ordered to put in an Answer, and Dalmahoy if he please.
Maij 12, 1675. Ordered, That this House will hear Counsel at the Bar, upon the Petition and Appeal of Sir Nicholas Crispe, and others, against the Lady Viscountess Cranbourne, the Lady Anne Bowyer, and Thomas Dalmahoy Esq; and their Answer thereunto, depending in this House on Wednesday the 19th of this Instant May, at ten of the Clock in the Forenoon; whereof the Petitioners are to cause timely Notice to be given to the said Defendants, or their Agents in the said Case, for that Purpose.
Maij 19, 1675. Whereas Sir Nicholas Crispe, Bart. having an Appeal depending in this House, against the Lady Cranbourne, Lady Bowyer, and Thomas Dalmahoy Esq; a Member of the House of Commons; hath prayed that Counsel may be assigned him to plead his Cause upon the said Appeal, and hath named Counsel for that Purpose: It is ordered that Sir John Churchill, Serjeant Peck, Serjeant Pemberton, and Mr. Porter, named by the said Sir Nicholas Crispe, be, and are hereby appointed to open, and manage the said Cause, on the Part and Behalf of the said Sir Nicholas Crispe; on Thursday the 27th Day of this Instant May at ten of the Clock in the Forenoon; and at such other Times, as it shall be depending in this House.
Upon reading the Petition of Sir Nicholas Crispe, Bart. Thomas Crispe and John Crispe, Esqs; shewing, that having an Appeal depending in this House against Thomas Dalmahoy Esq; a Member of the House of Commons, and others; they are in danger of being arrested by an Order of the House of Commons; and therefore pray the Protection of this House, that they may have Liberty to prosecute their said Appeal with Freedom:
It is thereupon ordered, that Sir Nicholas Crispe, Bart. John Crispe, and Thomas Crispe, or any of them, their or any of their Counsel, Agents or Sollicitors, or such other Person or Persons as they shall employ, in prosecuting the said Appeal before this House, be, and are hereby privileged, and protected accordingly by this House, until the Matter upon the Appeal be determined by their Lordships. And all Persons whatsoever, are hereby prohibited from arresting, imprisoning, or otherwise molesting, the said Sir Nicholas Crispe, John Crispe, and Thomas Crispe, or any of their Counsel, Agents, or Sollicitors, upon any Pretence whatsoever, during the Time prefixed, as they or such of them will answer the contrary to this House.
Maij 26, 1675. The Cause between Sir Nicholas Crispe, &c. Plaintiffs, and Thomas Dalmahoy Esq; Defendant, appointed to be heard the 27th, was ordered to be heard the 28th Maij.
Maij 27. Upon reading the Petition of Sir Nicholas Crispe, complaining, that the Counsel assigned him by this House, to plead his Cause at the Bar, wherein Mr. Dalmahoy is one of the Defendants, do refuse to plead for him in this Case, in regard of a Vote of the House of Commons; Sir Nicholas Crispe was called in, and testified, that he shewed the Order of this House to Serjeant Peck, Serjeant Pemberton, Sir John Churchill, and Mr. Porter.
Whereupon it is Ordered, That, whereas Sir John Churchill, Serjeant Peck, Serjeant Pemberton, and Mr. Porter, were, by Order of this House, dated on the 19th Instant, assigned to be of Counsel for Sir Nicholas Crispe, John Crispe, and Thomas Crispe, in their Cause depending in this House, against Thomas Dalmahoy Esq; a Member of the House of Commons, and other Defendants, at such time as the said Cause shall be appointed to be pleaded at the Bar of this House; and having appointed to hear the said Cause, by Counsel on both sides, to-morrow at three of the Clock in the Afternoon;
It is this day Ordered, that the said Sir John Churchill, Serjeant Peck, Serjeant Pemberton, and Mr. Porter, be, and are hereby required, to appear at the Bar of this House, to-morrow, at three of the Clock in the Afternoon, as Counsel to plead in the said Cause, on the Behalf of the said Sir Nicholas Crispe, John Crispe, and Thomas Crispe, as they will answer the contrary to this House.
Maij 28, 1675. Council heard at the Bar on both Parts, upon the Petition and Appeal of Sir Nicholas Crispe, &c. and the Answer of Diana Viscountess Cranbourne, &c. and Thomas Dalmahoy Esq; put in thereunto concerning a Decree in Chancery: Resolved, the Petition and Decree be dismissed.
Maij 28. This day the House heard the Counsel of Sir Nicholas Crispe, John Crispe, and Thomas Crispe, upon their Petition and Appeal depending in this House; and also the Counsel of the Lady Bowyer, and Mr. Dalmahoy, upon their Answer thereunto; and, after a serious Consideration thereof, the Question being put, whether this Petition and Appeal shall be dismissed this House ?
It was resolved in the Affirmative.
Proceedings against several Barristers for pleading before the Lords in Breach of an Order of the Commons. ; Their Defence.
Mr. Serjeant Pemberton, Sir John Churchill, Mr. Serjeant Peck, and Mr. Porter, attending at the Door, in obedience to the Order of the House of Commons; and, being severally called in, Mr. Speaker did severally acquaint them, that they were summoned to give an Account to the House, of their appearing as Council at the Bar of the House of Lords, in the Prosecution of a Cause depending upon an Appeal, wherein Mr. Dalmahoy, a Member of this House, is concerned, in the manifest Breach of the Order of this House; and giving up, as much as in them lies, the Rights and Privileges of the Commons of England: And they having answered and made their Excuses to the effect following; That they had no notice of the Order or Vote of this House, but what they had heard in common Discourse abroad; and because they conceived Mr. Dalmahoy, a Member of this House, might be concerned, they refused several times to appear as Council, or to accept their Fees; but being assigned of Council for Sir Nicholas Crispe, and an Order of the House of Lords being served on them to attend at their Peril, and that then attending, and Mr. Dalmahoy having put in his Answer in the Lords House, and not insisting on his Privilege afterwards, and the Council for Lady Bowyer, who was the principal Party concerned, denying to be of Council for Mr. Dalmahoy, they conceived they might safely appear as Council without breach of the Order, or invading the Rights and Privileges of this House, which was not intended by them; and Sir John Churchill, by way of farther Excuse for himself, said, that he had Witnesses ready to prove that Mr. Dalmahoy was willing and desirous to have the Business go forward. And the said Mr. Serjeant Pemberton, Sir John Churchill, Mr. Serjeant Peck, and Mr. Porter, did all of them humbly submit themselves to the Pleasure of the House, if they had in any thing misbehaved themselves; and being withdrawn, and the Matter debated, the Question being put, That Serjeant Pemberton be taken into Custody of the Serjeant at Arms attending this House ?
They are order'd into Custody.
It was resolved in the Affirmative.
Ordered, That Serjeant Pemberton, Sir John Churchill, Mr. Serjeant Peck, and Charles Porter Esq; be taken into Custody of the Serjeant at Arms attending this House.
Other Reasons to be offered to the Lords.
Mercurij, 2 die Junij. Ordered, That Sir Richard Temple, Mr. Vaughan, and Sir Thomas Lee do withdraw, and attend the Reasons upon the Debates of the House: Which was done; and the Reasons agreed to are as follow.
'The House of Commons do agree with the Lords, that Conferences between the two Houses of Parliament, are essential to parliamentary Proceedings, when they are agreed in the usual and parliamentary Way; but the Manner of the Lords Agreement to the Conference, to have been on Friday the 28th of May last, at ten of the Clock, in the Painted-Chamber, with Limitation and Proviso, did necessitate the House of Commons to forbear to meet at that Conference, and gave the first Interruption to parliamentary Proceedings, in Conferences between the two Houses.
'For that the Conference desired by the Commons, was upon their Privileges, concerned in the Answer of the Lords to a Message of the House of Commons, sent to the Lords the 17th of May, in the Case of Mr. Onslow; to the which the Lords did not agree, but did only agree to a Conference concerning their Privileges in general, without Reference to the Case of the said Mr. Onslow; which was the only subject Matter of the desired Conference.
'The Limitation in the Lords Agreement to a Conference, with Proviso that nothing be offered at the Conference that may any ways concern the Lords Judicature, is in effect a Denial of any Conference at all, upon the Subject upon which it was desired; which ought not to be.
'The Judicature which the Lords claim in Appeals, against a Member of the House of Commons, and the Privilege of that House in that Case, is so involved, that no Conference can be upon the Matter, without some way touching the former.
'That this manner of agreeing to a Conference, with any Limitation or Proviso, is against the Course of Proceedings between the two Houses of Parliament, in coming to Conferences; and doth seem to place a Power in the Managers of such Conferences, to judge whether such Provisos be broken or not, and accordingly to proceed or break off the Conference upon their own Judgments.
'The House of Commons doubt not, but that, when the Lords have considered of what is delivered at this Conference, the good Correspondence which the Lords express they desire to continue between the two Houses (which the Commons are also no less careful to maintain) will induce them to remove the present Interruption of coming to Conferences; and therefore to agree to the Conference, as it was desired by the House of Commons, upon the Privileges of their House, concerned in the Lords Answer to the Message of the House of Commons, in the Case of Mr. Onslow: That the particular Limitation, that nothing be offered at the Conference, that may any way concern the Judicature of the Lords, appears unreasonable; for that their Lordships Judicature in Parliament is circumscribed by the Laws of the Land, as to their Proceedings and Judgments; and is, as well as all other Courts, subjected to Parliament.'
Jovis, 3 die Junij, 1675. Mr. Vaughan reports, That the Lord Privy-Seal did manage the Conference, and had delivered the Intent and Occasion of the Conference; which Mr. Vaughan did report to the House, to the Effect following, viz.
The Lords Replies.
'The Lords do take notice of the House of Commons their ordering into Custody of their Serjeant, Mr. Serjeant Peck, Sir John Churchill, Mr. Serjeant Pemberton, and Mr. Serjeant Porter, Counsellors at Law; assigned by their Lordships to be of counsel in an Appeal heard at their Lordships Bar, in the Case of Sir Nicholas Crispe, against the Lady Bowyer, Mr. Dalmahoy, and others; the Lords in Parliament, where his Majesty is highest in his royal Estate, and where the last Resort of judging upon Writs of Error, and Appeals in Equity, in all Causes and over all Persons, is undoubtedly fixed, and permanently lodged.'
'It is an unexampled Usurpation and Breach of Privilege against the House of Peers, that their Orders or Judgments should be disputed, or endeavoured to be controlled, or the Execution thereof obstructed by the lower House of Parliament; who are no Court, nor have authority to adminster an Oath, or give any Judgment.'
'It is a transcendent Invasion on the Right and Liberty of the Subject, and against Magna Charta, the Petition of Right, and many other Laws, which have provided, that no Freeman shall be imprisoned or otherwise restrained of his Liberty, but by due Process of Law.'
'This tends to the Subversion of the Government of the Kingdom, and to the introducing of Arbitrariness and Disorder.'
'Because it is the nature of an Injunction from the lower House, (who have no Authority or Power of Judicature over inferior Subjects, much less over the King and Lords) against the Orders and Judgments of the supreme Court.'
'We are farther commanded to acquaint you, that the Lords have, therefore, out of that Justice which they are Dispensers of against Oppression and Breach of Laws, by Judgment of this Court, set at liberty, by the GentlemanUsher of the Black Rod, all the said Serjeants and Counsellors; and prohibited the Lieutenant of the Tower, and all other Keepers of Prisons and Goalers, and all Persons whatsoever, from arresting and imprisoning, detaining, or otherwise molesting, or charging the said Gentlemen, or any of them in this Case: And if any Person, of what Degree soever, shall presume to the contrary, their Lordships will exercise the Authority with them entrusted for putting the Laws in execution.'
'And we are farther commanded to read to you a Roll of Parliament in the first Year of the Reign of King Henry the IVth, whereof we have brought the Original with us.'
And a Debate arising thereupon;
Another Conference desired.
Resolved, That a Conference be desired with the Lords upon the Subject Matter of the last Conferrence; and that these Members following, be appointed to prepare and draw up Reasons upon the Debates of the House, to be offered at the Conference.
Ordered, That the Officer, in whose Custody is the Record of the first of Henry the IVth, mentioned at the Conference with the Lords, do attend the Committee appointed to draw up Reasons for another Conference this Afternoon: And they are to meet at Three of the Clock, in the Speaker's Chamber, and to send for Persons, Papers and Records.
Ordered, That no Member of this House do attend the Lords House, upon any Summons from the Lords without Leave of the House.
The Thanks of the House given to the Speaker for causing Serjeant Pemberton to be seiz'd in Westminsterhall.
Veneris, 4 Junij, 1674. Ordered, That the Thanks of the House be returned to Mr. Speaker, for causing Mr. Serjeant Pemberton, formerly committed by order of this House to the Custody of the Serjeant at Arms attending this House, for Breach of Privilege, to be seized and taken into Custody in Westminster hall, for his Breach of Privilege.
The House being informed, that Sir John Churchill, Mr. Serjeant Peck, and Mr. Charles Porter, who were ordered to be taken into Custody of the Serjeant at Arms attending this House, are now in Westminster-hall;
Ordered, That the Serjeant at Arms now attending this House, do go with his Mace into Westminster-hall, and do execute the Order of this House and the Warrant of Mr. Speaker thereupon, for seizing and bringing in Custody Mr. Serjeant Peck, Sir John Churchill and Mr. Charles Porter, for their Breach of the Privilege of this House.
The three other Barristers seiz'd in the same Place.
The Serjeant returning, gave an Account, that he had executed the Order of this House and Mr. Speaker's Warrant thereupon, and had brought the said Mr. Serjeant Peck, Sir John Churchill and Mr. Charles Porter, in Custody, into the Speaker's Chamber.
The Question being put, that Sir John Churchill, Mr. Srrjeant Peck, Mr. Serjeant Pemberton, and Mr Charles Porter be sent to the Tower, for their Breach of Privilege and Contempt of the Authority of this House?
It was resolved in the Affirmative.
And together with Pemberton sent to the Tower.
Ordered, That Mr Speaker do issue his Warrant to the Lieutenant of the Tower to receive them into his Custody.
Ordered, That John Popham Esq; the now Serjeant at Arms attending this House, be protected against all Persons that shall any ways molest or hinder him from executing his Office.
Sir Thomas Lee's Report.
Sir Thomas Lee reports from the Committee, the Reasons agreed to be offered at the Conference to be had with the Lords, upon the Matters delivered at the last Conference, which were twice read, and, with some Amendments made at the Table, severally agreed; and are as follows, viz.
Other Reasons to be offer'd the Lords.
'Your Lordships having desired the last Conference, upon Matters of high Importance, concerning the Dignity of the King, and the Safety of the Government, the Commons did not expect to hear from-your Lordships at that Conference, Things so contrary to, and inconsistent with, the Matter upon which the said Conference was desired, as were then delivered by your Lordships.'
'It was much below the Expectation of the Commons, that, after a Representation of your Lordships Message, of Matters of so high Importance, the Particular upon which the Conference was grounded, should be only the Commitment of four Lawyers to the Custody of their own Serjeant at Arms, for a manifest Violation of the Privileges of their House.'
'But the Commons were much more surprized, when your Lordships had introduc'd the Conference with an Assurance, that it was in order to a good Correspondency between the two Houses, that your Lordships should immediately assume a Power to judge the Orders of the House of Commons for Imprisonment of Mr. Serjeant Pemberton, Mr. Serjeant Peck, Sir John Churchill, and Mr. Charles Porter, to be illegal and arbitrary: and the Execution thereof a great Indignity to the King's Majesty; with many other high Reflections upon the House of Commons, throughout the whole Conference: whereby your Lordships have condemned the whole House of Commons as criminal, which is without precedent or example, or any ground or reason so to do.'
'It is not against the King's Dignity for the House of Commons to punish by Imprisonment, a Commoner that is guilty of violating their Privileges, that being according to the known Laws and Customs of Parliament, and the Right of their Privileges declared by the King's royal Predecessors in former Parliaments, and by himself in this.'
'But your Lordships claiming to be the supreme Court, and that his Majesty is highest in his royal Estate in the Court of Judicature there, is a diminution of the Dignity of the King, who is highest in his royal Estate in full Parliament; and is derogatory to the Authority of the whole Parliament, by appropriating it to yourselves.
'The Commons did not by this Imprisonment infringe any Privileges of the House of Peers, but only defend and maintain their own: On the other side, your Lordships do highly intrench upon the Rights and Privileges of the House of Commons, by denying them to be a Court or to have any Authority or Power of Judicature; which, if admitted, will leave them without any Power or Authority to preserve themselves.'
'As to what your Lordships call a transcendent Invasion of the Rights and Liberties of the Subject, and against Magna Charta, the Petition of Right, and many other Laws; the House of Commons presume that your Lordships know, that neither the Great Charter, Petition of Right, or any other Laws, do take away the Law and Custom of Parliament, or of either House of Parliament, or else your Lordships have very much forgotten the Great Charter, and those other Laws, in the several Judgments your Lordships have passed upon the King's Subjects in Cases of Privilege. But the Commons cannot find by Magna Charta, or by any Law or ancient Custom of Parliament, that your Lordships have any Jurisdiction in Cases of Appeal from the Courts of Equity.
'We are farther commanded to acquaint you, that the Enlargment of those Persons in Prison by order of the House of Commons, by the Gentleman Usher of the Black Rod, and the Prohibition which threatens all Officers and other Persons whatsoever, not to receive or detain them; is an apparent Breach of the Rights and Privileges of the House of Commons: And they have, therefore, caused them to be retaken into the Custody of the Serjeant at Arms attending this House, and have committed them to the Tower.
'As for the Parliament-Roll of the 1st of King Henry the IVth caused to be read by your Lordships at the last Conference, but not applied; the Commons apprehend it doth not concern the Case in question: For that this Record was made upon occasion of Judgments given by the Lords, to depose and imprison their lawful King; to which the Commons were not willing to be made Parties. And therefore the Commons conceive it will not be for the Honour of your Lordships to make farther use of that Record.
'But we are commanded to read your Lordships the Parliament-Roll of 4 Edw. III. N. 6. which if your Lordships please to consider, they doubt not but your Lordships will find occasion to apply it to the present Purpose.
The Speaker thank'd a second Time.
Ordered, The Thanks of the House be given to the Speaker, for his Care in issuing the Warrant for retaking the Persons committed yesterday into Custody.
The Serjeant at Arms was then ordered to be sent to the Tower; and the other Serjeant at Arms attending, was ordered to apprehend him for betraying his Trust, in not executing his Office, in bringing the Persons committed Yesterday to his Custody, to the Bar of the House.
An Address ordered to be prepared, to be presented to his Majesty, to desire a new Serjeant at Arms to attend the House.
Mr. Secretary Coventry, in his Majesty's Name, desires an Adjournment.
Saturday, June 5, 1675. Mr. Secretary Coventry acquainted the House, that it was his Majesty's desire, that the House would adjourn till four of the Clock in the Afternoon, and that both Houses should at that Time attend him in the Banqueting-House at Whitehall.
A Debate arising touching the Removal of John Popham Esq Serjeant at Arms in Ordinary, attending the House yesterday, the farther Debate thereof was adjourned till Five o'clock in the Afternoon, and then the House adjourned till Four in the Afternoon.
In the Afternoon, the House then met at the Time they adjourned to, and went in a Body to his Majesty at Whitehall; and the House of Lords being also present, his Majesty made the following Speech.
The King's Speech.
My Lords and Gentlemen,
You may remember, that, at the meeting of this Session, I told you no endeavour would be wanting to make the continuance of this Parliament unpracticable. I am sorry that Experience hath so quickly shewed you the Truth of what I then said; but I hope you are well convinced, that the Intent of all these Contrivances is only to procure a Dissolution. I confess, I look upon it as a most malicious Design of those who are Enemies to me and the Church of England; and, were the Contrivers known, I should not doubt but the Dislike of their Practices would alone be a means of bringing the Houses to a good Understanding; but, since I cannot prescribe any way how to arrive to the Discovery of it, I must tell you plainly my Opinion, that the Means to come to any Composure between yourselves, cannot be without admitting of such free Conferences, as may convince one another by the Reasons then offered; or enable me to judge rightly of the Differences, when all hath been said on both sides which the Matter will afford: For I am not to suffer these Differences to grow to Disorders in the whole Kingdom, if I can prevent it; and I am sure my Judgment shall always be impartial between my two Houses of Parliament. But I must let you know, that whilst, you are in debate about your Privileges, I will not suffer my own to be invaded. I have nothing more to say to you at this Time, but to desire, as I did when we met first, that you would yet consider, and not suffer ill Men's Designs to hinder the Sessions from a happy Conclusion.'
The House of Lords presented an Address to his Majesty, to remove the Lieutenant of the Tower; whereupon the Lord Treasurer reported his Majesty's Answer, viz. 'That his Majesty hath considered the Circumstances of the Matter, and is not satisfied how with justice he can remove him.'
The humble Thanks of the House given to his Majesty.
The House then took into consideration his Majesty's Speech, and resolved, nemine contradicence, That the humble Thanks of this House be returned to his Majesty, for the gracious Expressions in his Speech this Day made to both Houses of Parliament; and such Members of this House as are of his Majesty's Privy Council are desired to present the humble Thanks of this House to his Majesty.
Resolved, That it doth not appear to this House, that any Member thereof hath either contrived or promoted the Difference between the two Houses of Parliament; or, in asserting the Rights of the Commons of England, and the Privileges of this House, hath done any thing inconsistent with his Duty, or the Trust reposed in him. And then adjourned to Monday, June 7.
On Monday, June 7. The House resolved, that what Serjeant Popham did in retaking the four Lawyers into his Custody, and conducting them to the Tower of London, was in pursuance of his Duty, and by the Order of the House; and the farther Debate concerning the said Serjeant at Arms was adjourned till Wednesday Morning.
A Copy of an Order from the House of Lords for the hearing Counsel in the Case of Sir John Fagg, a Member of this House, to-morrow Morning, was then read and debated: And resolved, that as to the Case of Appeal brought against Sir John Fagg in the House of Lords, he shall have the Protection and Assistance of this House.
Resolved, nemine contradicente, That if any Person or Persons shall be aiding or assisting in putting in execution any Sentence or Judgment that shall be given by the House of Lords, upon the Appeal brought by Dr. Shirley against Sir John Fagg, a Member of this House, such Person or Persons shall be adjudged and taken to be Betrayers of the Rights and Liberties of the Commons of England, and the Privileges of this House, and shall be proceeded against accordingly.
Ordered, That these Votes be made public, by setting them up in Westminster-hall, and in the Lobby of this House, and the Clerk of the House to take care to see it done.
In the Afternoon, the House proceeded in the farther Consideration of effectual Means for the Preservation of their Rights and Privileges, and resolved, nem. con. That no Person, committed by Order or Warrant of this House, for Breach of the Privileges or Contempt of the Authority of the House, ought to be discharged during this Session of Parliament, without the Order or Warrant of this House.
Resolved, nem. con. That the Lieutenant of the Tower of London, in receiving and detaining in Custody Sir John Churchill, Serjeant Peck, Serjeant Pemberton, and Mr. Porter, hath performed his Duty according to Law; and for his so doing he shall have the Assistance and Protection of this House.
Resolved, That the Lieutenant of the Tower, in Case he hath, or shall receive any Writ, Warrant, Order, or Command, to remove or deliver any Person or Persons committed to his Charge, for Breach of the Privileges, or Contempt of the Authority of the House of Commons, by Order or Warrant of the House, shall not make any Return thereof, or yield any Obedience thereto, before he hath first acquainted the House therewith, and received their Order and Direction how to proceed therein.
Ordered, That these Resolutions be immediately sent to the Lieutenant of the Tower, and then the House adjourned.
Tuesday, June the 8th, 1675. A Message sent to the Lords to remind them of the last Conference; upon the subject Matter delivered by the Lords at the last Conference.
Sir John Robinson, Lieutenant of the Tower, desires the Advice of the House in relation to his Prisoners.
Sir John Robinson informing the House, that he had received the four Lawyers committed to his Custody by this House, and denied to deliver them to the Gentleman-Usher of the Black-Rod; and that he was served last Night with four Writs of Habeas Corpus, to bring the said four Lawyers before the King and his Parliament at Westminster this Morning, and craved the Advice of the House what to do therein:
Receives the Thanks of the House.
Ordered, The Thanks of the House to be given to the said Sir John Robinson for his Behaviour therein, and and Mr Speaker intimated to him, that he should forbear to return the said Writs of Habeas Corpus, which were read and debated; and the farther Debate thereof was adjourned till to-morrow morning, and a Committee appointed to search the Lords Journals, to see what hath been done in the Case of the four Lawyers, the Writs of Habeas Corpus, and Mr. Serjeant Popham, and to search for Precedents on the Writs of Habeas Corpus; and adjourned.
Sir Thomas Clarges's Report.
Mercurij, 9 die Junii. Sir Thomas Clarges reports, from the Committee to whom it was referred to search for Precedents touching Writs of Habeas Corpus, returnable in Parliament; That the Committee had found several Precedents of Writs of Habeas Corpus returnable in Parliament, and had considered of them: And that the Committee thereupon had agreed upon four Resolves to be presented to the House, which he read in his Place, and afterwards delivered the same in at the Clerk's Table, where they being twice read, were upon the Question severally agreed to, and are as follow:
'Resolved, Nem. con. 1. That no Commoners of England committed by the Order or Warrant of the House of Commons, for Breach of Privilege or Contempt of the Authority of the said House, ought, without Order of the House, to be, by any Writ of Habeas Corpus, or any other Authority whatsoever, made to appear and answer, or receive any Determination in the House of Peers, during that Session of Parliament wherein such Persons were so committed.
'Resolved, Nem. con. 2. That the Order of the House of Peers, for the Issuing out the Writs of Habeas Corpus concerning Mr. Serjeant Pemberton, Mr. Serjeant Peck, Sir John Churchill, and Mr. Charles Porter, is insufficient and illegal; for that it is general, and expresses no particular Cause of Privilege, and commands the King's Great Seal to be put to Writs not returnable before the said House of Peers.
'Resolved, Nem. con. 3. That the Lord-Keeper be acquainted with these Resolutions, to the end that the said Writs of Habeas Corpus be superseded, as contrary to Law and the Privileges of this House.
'Resolved, Nem. con. 4. That a Message be sent to the Lords, to acquaint their Lordships, that Mr. Serjeant Peck, Sir John Churchill, Mr. Serjeant Pemberton, and Mr. Charles Porter, were committed by Order and Warrant of this House, for manifest Breach of Privilege, and Contempt of the Authority of this House.'
Ordered, That Col. Birch do go up to the Lords with a Message, that a Conference is desired upon the subject Matter of the last Conference.
The House commanded to attend his Majesty in the House of Peers.
A Message was this Day sent from his Majesty in the House of Lords, by Sir Edward Carteret, Usher of the Black-Rod, commanding this honourable House to attend his Majesty forthwith in the House of Peers; and accordingly Mr. Speaker went up with the House, where his Majesty was pleased to make the following Speech to them.
The King's Speech.
My Lords and Gentlemen,
I Think I have given sufficient Evidence to the World, that I have not been wanting on my part, in my Endeavours to procure the full Satisfaction of all my Subjects, in the Matters both of Religion and Property: I have not only invited you to those Considerations at our first Meeting, but I have been careful through this whole Session, that no Concern of my own should divert you from them.
'Besides, as I had only designed the Matter of it to be the procuring of good Laws, so for the gaining of them, I have already waited much longer than I intended; and should have been contented still to have continued my Expectation, had there any Hopes remained of a good Conclusion. But I must confess, the ill Designs of our Enemies have been too prevalent against those good ones I had proposed to myself, in behalf of my People; and those unhappy Differences between my two Houses are grown to such a Height, that I find no possible Means of putting an end to them but by a Prorogation. It is with great Unwillingness that I make use of this Expedient, having always intended an Adjournment, for the Preservation of such Bills as were unfinished. But my Hopes are, that, by this means, the present Occasion of Differences being taken away, you will be so careful hereafter of the Public as not to seek new ones, nor to revive the old.
'I intend to meet you here again in Winter, and have directed my Lord-Keeper to prorogue you till the thirteenth Day of October next.'