Grey's Debates of the House of Commons: Volume 1. Originally published by T. Becket and P. A. De Hondt, London, 1769.
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Saturday, April 15.
Serjeant Maynard's Arguments in Skinner's Cafe, at a Conference with the Lords, by an Order of April 15, 1671, entered into the Journal of the House of Commons (fn. 1).
My Lords, My task is to give your Lordships the reasons on which the House of Commons have grounded their first vote, touching the complaint made before you, concerning the trespass in seizing of the goods of Mr Skinner, and the assault made on his person; the vouching of precedents is committed to another hand, and therefore I shall meddle little with them, but shall chiefly insist on Acts of Parliament, and Common Law. I come before your Lordships with a two-fold confidence; the first raised from those who have imposed upon me this service, being the Representatives of the whole Commons of England, the Knights, Citizens, and Burgesses in Parliament, who all speak by me this day; the reasons are theirs, not mine; the words are mine, for I am not charged with forms of words, but the reasons and arguments are not mine, but theirs.
Therefore the reasons I shall leave to your Lordships judgments, and myself to your favourable construction, if I err in any expression not suitable to the greatness of the matter, or your Lordships greatness.
Now to the matter. It hath been already observed to your Lordships, that this cause is not negatively; to wit, it comes not before your Lordships as matter of evidence to the King, nor as matter of favour, but is brought to you by way of complaint, by one Commoner against another, as supposing your Lordships to be proper judges, primâ instantiâ, to hear and determine the cause, as it hath been summarily, and without such legal tryal as by Law ought to have been had in such a case. The Common Law is that which makes your Lordships safe in your honour and estates, by which Justice is to be administered, and whatever is done without this Law, by way of judgment, is done against it, and is not according to Law, which is that vote of which I am to give the reasons.
But first, I observe, that in this case your Lordships proceedings therein were against the express consent of the Defendant, who pleaded to that Jurisdiction, and therefore doth much differ from those cases, where the persons insisted not on that Jurisdiction, but gave answer to complaints before you, possibly sometimes out of a confidence in their cause, or out of fear, or private prudence, chusing rather to put themselves on your Lordships opinion than displeasure, by excepting to so high a Court in point of Jurïsdiction.
The grand work of all which I shall farther say is expressed in the vote itself (viz.) that the suit is a common plea, it concerns not the King in his interest, nor any crime; for that is a common plea wherein one subject demands against another any real or personal right, for lands, hereditaments, freehold goods, or chattels, or satisfaction for injuries. And "a common person" in this matter is every person under the King, noble or ignoble, wherein the Commons observe the amplitude and vast extent of this question, both for persons and things; for there is no person, how great soever, who is a subject, but is concerned in all and every thing he hath and can claim; and it extends to ecclesiastical as well as secular jurisdictions and interests; for what reason can be to exempt the one more than the other?
The proceeding was summary; it was by English petition, and without all formality requisite. I speak now of little formalities, which in several Courts vary, though the rule of Justice, as to the main, is the same in the Courts; but of those greater formalities, which are necessary methods of administering justice, without which the Plaintiff knows not how to prosecute, nor the Defendant how to make his defence, nor either party to make proof.
This being premised, I say, non recurritur ad extraordinarium remedium nisi deficiente ordinario. The Petitioner might have had his ordinary remedy in the inferior Courts as to the ship-goods and assault, and therefore need not, nor ought, to fly to an unusual and extraordinary remedy. This is a general reason, and is reason and truth.
But, secondly, I come to more particulars. By this way of proceeding, the subject loses that legal and indifferent way of tryal, which the Law hath provided for him, by Jurors for his own condition, which is as much his right, yea his birthright and inheritance, as his lands are, and without which he is not sure to keep them, or any thing else. This way of tryal is his sence and protection against all storms of power, and against all frauds and surprizes, if the institution thereof were duly observed, as it ought to be; therefore the Commons are careful, [even] to jealousy, that this their liberty and buckler be not taken from them; for if we look into the institution of it, nothing can be established with more caution and care for indifferency, and for finding out the truth; and we think that we much owe those liberties, which we enjoy beyond our neighbours (of whom some once had it, but have lost it) to this way of tryal. True it is, that herein sometimes miscarriages happen; but the fault is not in constituting the Law, but in the execution. Jurors are men, and therefore may, and sometimes will err, but they err not the more because they are sworn, and other men err as much as they, and possibly it would be much better, if the Ministers of Justice, according to their duty, did return sufficient persons, and that such persons were more willing to serve on Juries. Every judgment is established on two things, of which the Judge must have a care, viz. the verity of the fact, and what the Law is upon such fact; ex facto jus oritur. Now by the constitutions of the Law of England, the tryal of the fact is in one hand, and the determination of the Law by Judges sworn. The Judge may not try the fact, nor the Juror the Law, but at their extreme peril; for by the Common Law, the Jurors, if they give a false verdict, underwent the villainous judgment, viz. to have their houses rased, lands wasted, meadows ploughed, woods felled, body imprisoned, and infamy perpetual, never to be credited more.
The Law hath singular care for the indifferency, secondly, and for the sufficiency, à neutrâ parte suspecti. The Sheriff is bound by oath to return such; next, if he fail, each party hath his challenges (to wit) that such or such Juror is of kin, interested, engaged by opinion while unsworn, tenant, &c. If this challenge be denied, the truth of the challenge must be tryed by persons sworn, and the Jury serve on their oath, and pawn of their souls, to the truth.
And after the Jury sworn, if any matter of Law arise on the evidence, it is ordinarily specially found, and if the Judge deny a special verdict, and will over-rule the matter, whoever therein is grieved may require the Judge, or Judges, to seal him a Bill of exception, which he or they cannot refuse to do, or if he do, the party grieved hath remedy against him.
Then after verdict, the Judges, who give judgment, do it on their oaths, according to their best skill; and when they have done, if any party think himself grieved, he hath his remedy, by writ of error, before other Judges, who act on their oaths likewise.
Again; the persons that try the fact, are persons of the same rank with the suitors; not too mean, for they may be open to unhandsome temptations; nor too high, for great Lords serve not on Juries, not only in regard of their privileges, but of their grandeur and power, whereby others may be over-awed. The institution is cautious, and bound together, and carried on, from the beginning to the end, by the most sacred bonds, to find out truth, that can possibly be imposed by men.
But by this way of proceeding before your Lordships, all these advantages are lost; for the tryal of fact and of Law, the office of the Judge and Juror, are confounded. There is no challenge, or exception, that can be taken to any of the Lords, though one or more of them be enemies, or friends, or allies to either party, or engaged by opinion, or sollicitation, or interest, in the cause, or all these together, or any other; for though a Juror may be challenged, a Judge cannot. Again; as the subject is deprived of his tryal in point of difference, viz. by persons of his own quality, touching whom he may provide by challenge, that the partial or suspected be removed, so he is hereby put to vast charge, and attendance, and trouble.
The Law appoints and provides certain terms and stations for doing justice. There are dies juridici, and they are certain, and the distances between day and day certain more or less, according to the nature of the demand, and distances of the place, especially where the demand is real; by means whereof, the parties, knowing the times of their attendance, know how to dispose of their affairs, and to prepare their instructions, evidences, witnesses, and what is material for their defence.
Again; in case an error be committed in the proceedings, be the same ever so unjust, whether in fact, or in Law, and be the consequence of such error ever so fatal and ruinous to the party, yet he is without all remedy in the way of proceeding. It is possible for the Court to err, but it is impossible, or next to an impossibility, for the party to be relieved therein on such proceedings, in case error or mistake happen, which will appear on these considerations:
First, in respect of the Court and Judges; for no address can be made in such case to any other but to the same persons who did the wrong, with this disadvantage, that they who were his Judges are concerned, and in some fort become interested, viz. to judge of their own proceedings, whether good or bad, just or unjust; for in the first instance, the question was, whether the adversary did wrong; but in the complaint of the error, the question is, whether the Court did wrong. This is if the party will complain in the same Parliament.
Secondly, no error can lie properly in the case, because the proceedings being English and summary, it cannot be well made to appear in the second instance what the proof was in the first instance, there being no record kept thereof.
Thirdly, put the case that that, which by Law is no evidence, be allowed for evidence against Law, yet there is no remedy. As suppose, in this case of Skinner, an affidavit were admitted for evidence, or should be admitted in another case, what remedy? It were against Law so to do, for affidavit is most commonly prepared by the party himself, or his Counsel, and is framed for advantage, telling the story but on one side; and though it should be true, yet it is not the whole truth (as a witness is forced to say) but the half truth; for he that swears to an affidavit, swears it true, but not that it is the whole truth. The witness, viva voce, is sworn to tell the whole truth; and besides, the adverse party doth not, nor can, cross-examine in such case; and when all is done, falshood in an affidavit is not perjury punishable by Law, and with that severity that a false witness is.
Or put that in this case, the master be fined for the act of the servant, though the master commanded not before the Act, nor approved of it after, yet what remedy? It was very hard, and certainly against Law and reason, if it were so; the difference which Law and reason make in such a case is where a duty lieth on the master, and he doth employ another in the service, the master shall answer for the errors, negligence, and misfeazance of his servant; for there the Act of the servant is by his commission and authority, but the master cannot for trespasses or wrongs done in matters out of his servant's commission; yet if this were the case, and the chief evidence thereof by affidavit, the party is without remedy, or so disadvantageous a remedy as before, although in truth he that judgeth against the Law, doth, as to that present case, make a Law, and, in precedent for the future too, he makes a Law in all others of that kind.
Again; the way of proceeding summarily by English Petition, and without tryal by Jury, is against several Statutes and Declarations in Parliament by the Lords themselves. Magna Charta, 9 Henry III. ch. 29. Nullus liber homo capiatur, &c. aut disseisetur, (that is to say, put out of his freehold) nisi per judicium parium suorum, vol per legem terræ. The cause is disjunctive, and it is true that, in some cases, a man may be put out of his freehold, or be imprisoned, where he is not tried per judicium parium, as in case he will not put himself on his tryal, or by impleading, demurring, non-appearance, or the like, but that is ever by the party's own error, and "per legem terræ," in the Statute, may refer to such cases; but it were a strange construction to say, that, because the Statute saith, "nisi per legem terræ," therefore in those cases where the proper and legal tryal is per judicium parium, and may be pursued and had, "per legem terræ," should make void the first clause, and render it wholly insignificant.
Next Statute in point is 5 Edw. III. chap. 1. wherein Magna Charta is confirmed, and in chap. 9. is explained. "No man from henceforth shall be attached by any accusation, nor forejudged of life or limb, nor his lands, tenements, goods, or chattles seized into the King's hands, against the form of the great charter and Law of the Land." —This clearly is a declarative Law, a commentary what is meant by the former Statute, for else it were a very superfluous Law. As to the 9th chap. Magna Charta was confirmed in express words in the first chapter, and that which follows hence is, "that if any freeman be attached by any accusation, it is against Magna Charta, and against the Law of the Land; or it is against the Law and Magna Charta that a man should be attached by any accusation." I take a charge by English petition before the Lords, to be "an accusation" within this Law; this farther appears by the Statute 25 Edward III. chap. 4. which enacts "that none be taken by suggestion or petition to the King, or his Council, unless it be by indictment, or presentment, or by process made by original writ at the Common Law;" the petition for this Law is thus, viz. Que nul franc homme soit mis hors de son franc tenement, &c. "that no freeman be put out of his freehold, nor any thing, &c. that toucheth life or member, fine or ransom, per opposals, before the Council of our Lord the King, nor before any of his Ministers, si non (but) par proces de loy de ceo en arriere use."
The answer is, "It pleaseth our Lord the King, that the Laws of this Kingdom be held and kept in their force, and that no man be bound to answer concerning his freehold, but by process of Law; but of what concerns life or member, contempts or excesses, be it done as hath been formerly used."
Upon this petition and answer thereto, the Law was drawn up in terminis as above; that which in the petition was called "the opposals, before the King's Council," is rendered and translated in the Law by the word "suggestion or petition;" and that which is called "process of Law" in the petition, and the King's answer thereto, is rendered or translated "process made by original writ," which is a clear exposition and declaration what in those times was understood by the words "process of Law," viz. that process of Law was all one, as process upon original writ, and the other qualification in the answer of the King, viz. "that in cases of contempt and excess" gives farther light. For indeed for contempts or excess the proceedings are by attachment, and for a contempt the process against a Peer of the Realm is, and always hath been, by attachment, without judgment of his Peers, as is plentifully proved by the books of Law.
But the proceedings in contempt are at the suit of the King, and not of the party, though the contempt or excess be committed in causes between party and party; and "original writ" is not to be understood in the strictest sense, of original writs issuing out of Chancery, and framed in the Register, but of all legal proceedings, whose original is writ, whether it be by Quo Minus out of the Exchequer attachments, by writ of Privilege out of the Common Bench, or the like writs out of other Courts, which are the proper originals in those cases and Courts, and the beginning of the suits, and the foundations of the subsequent process. This is a little farther explained by the Statute of 42 Edward III. chap. 2. and it seems to be made to take off an objection to the former Laws; to wit, the former Law speaks of, and refers to original writ; that is, that none be put to answer without presentment, or thing of record by due process (these words take in judicial writs) and by original writ, according to the old Law of the land, 27 Edward III. chap 18. 28 Edward III. chap. 3. My inference is, that none can be put to answer, but first there must be presentment, or matter of record, or writ original, taking here "original" in the sense above-mentioned. And this is the old Law of the land; but a petition to the Lords in this case was neither presentment, nor writ original, nor founded on any matter of record.
4 Hen. IV. chap. 23, recites, "that whereas in pleas, as well real as personal, after judgments in the King's Courts, the parties be made to come upon grievous pain, sometimes before the King himself, sometimes before the King's Council, and sometimes in Parliament, to answer thereof anew, to the grievance of the parties, and in subversion to the Common Law of the land; it is ordained that after judgment in the Courts of our Lord the King, the parties and their heirs shall be in peace, untill the judgment be undone by attaint, or by error, as has been used by the Laws, in the times of the King's progenitors."
Thirdly, That though the remedy be particular, viz. "only in case where judgment hath been had," yet it undeniably follows, that the jurisdiction of the Lords House did not hold in cases where judgment was given in the King's Courts, but by writ of error, not by petition, and consequently their jurisdiction not universal, as is pretended by petition.
4 Edward III. n. 6. The Lords in Parliament gave judgment of death on Earl Mortimer, Bogo de Bains, and sundry other Commoners, for Treason, in the cruel and barbarous murder of Edward II. father to Edward III. but they were not indicted thereof, but impeached by the King before the Lords in Parliament, whereupon, in the same Parliament, it is entered on the roll, Et est assentu et accord par nostre Scigneur le Roy, ç. "It is assented and agreed by our Lord the King, and all the great ones (fn. 2), in full Parliament, that although the said Peers, as Judges, did (fn. 3) take upon them, in the presence of the King our Lord, to make and render (a faire et rendre) the said judgments by assent of the King, on some of those who were not their Peers, and this by occasion of the murder of him who was so near of blood, &c. that the Peers who be, or shall be for time to come, be not bound nor charged to give judgment on others than on their Peers, but be thereof acquitted and discharged, and that the aforesaid judgments, now rendered, be not drawn in consequence, nor example, in time to come, by which the said Peers might be charged hereafter to judge others than their Peers, contrary to the Law of the land, if the like case should happen, which God forbid."
First, I conceive, that clearly it was an (fn. 4) Act of Parliament; the King, in full Parliament, assents and accords; an Act by the King and Lords is no Act, or Statute, unless all three States concur; but when the King and Lords agree, and the expression is, "that they so do in full Parliament," this is an Act, and the assent is to be understood to be of the full Parliament.
Secondly, however, the question being now concerning the jurisdiction of the Lords, here is a full declaration as to them; but then it is considerable, how far, and what it is, they disclaim in; it is not only not to be bound, &c. but "to be discharged of giving judgment on others than the Peers," so then their power is not universal.
Neither can this be answered, that this leaves them "a liberty" to give judgment on Commoners, and only takes from them "an obligation" to do it; for the words are both negative and affirmative, "they shall not be bound or charged, but be thereof discharged," and two other expressions show clearly, that in this they exceeded their due power. It is not said barely that they did the thing, but 's'empresteront," that is, "they took on them, or assumed on them to do it," and they agree " it shall not be drawn in example or consequence."
But the last words, which expressly say "that it was against the Law," clear it out of doubt; for wherein consisteth the illegality of the thing? If the Lords had jurisdiction in the cause, was it against the Law, in so great and enormous a villainy as the murder of the King's father, for them to put in ure that jurisdiction at the King's desire, or on his charge of the offence?
No, it was only in this; the persons on whom they exercised their jurisdiction were not their Peers; and this is clear, and the more clear, because when in the same cause they proceeded against a Peer and Commoners, the complaint was only against the proceedings against the Commoners, and not against the proceedings against Mortimer, who was their Peer, and whose case more concerned them than the proceedings against the Commoners; the only and single point was, they proceeded against persons who were not their Peers, against whom, en contre la loy, it was against Law for them to proceed, and it was not concerning the matter or manner of proceeding, but only the persons. And to say that they claimed only a liberty, but not to be compelled, seems to be a strange and unreasonable thing; for then cause should be that the Lords had a liberty to judge when a Commoner should be guilty of so horrid a Treason as the murder of the Prince; and yet, though it should be brought before the Lords, they should have a power, but not be bound to exercise it in such case.
The Statute, or Declaration, was not a provision against the way of proceeding, nor the matter, nor crime, on which they proceeded, but touching the persons, viz. Commoners, and amounts to thus much, that be the matter of as great consequence as the murder of a King, we ought not to proceed against a Commoner in such case, though son of the murdered Prince, and he, our sovereign, too, should command or intreat us; and it is to be observed, that this Statute, or Declaration, 4 Edward III. is followed immediately, 5 Edward III. the next year and Parliament, discovers the occasion why 5 Edward III. chap. 1. was made; for 4 Edward III. points in words to the Statute of Magna Charta, to wit, "Judicium parium," men were tried by others than their Peers; and then 4 Edward III. being expressed as to the persons, but doth not in express words mention in, or concerning, what matter such proceedings by others than Peers was against Law. 5 Edward III. chap. 9. doth declare in what matter such proceeding ought not to be, viz. "neither concerning life, limbs, lands, goods, or chattles," that is, nothing; and being an Act of Parliament, no precedents can repeal it, nor prevail to be a Law against it.
Next I shall present to your consideration two Statutes made, the first, viz. 15 Ed. III. and printed in the old Statute books, but omitted in the latter. The Commons complained of the breaches of the Statute of Magna Charta, and pray remedies with this conclusion, Issent que che senn port esteir a la lea solong en condico; i. e. "be judged according to, or as his condition requires," that is, per pares. The Lords also pray the King, "that Magna Charta, and Statute de Foresta be observed;" and farther, that if any, of what condition soever he be, should do any thing to the contrary, then that he should be judged by the Peers of the land in Parliament, at the next Parliament, and so from Parliament to Parliament," and this was enacted accordingly. Afterwards, 17 Edward III. the whole Parliament, viz. the Acts therein, are repealed, and made void, by the King, Lords, and Commons.
On consideration of these Statutes, First, I observe, That the Lords desire this power from the King, to punish the breakers of Magna Charta, &c. or other Laws. It was indeed a large and desirable power; but what need they desire a particular power by Statute to be conferred on them, if they had a general and universal power and jurisdiction before by the Common Law?
Secondly, That though they obtained their desire, and the Commons were well content therewith, yet it lasted not a hundred years, but that the whole Parliament repented; so that if they had the power before that, they would have probably had a saving in the Act of Repeal for the jurisdiction they had before, or else they would not have consented to the Repeal especially.
Thirdly, Considering that the Act of 15 Ed. III. doth not inflict any penalty, in particular, on the offenders, but praying a remedy; the remedy is only in giving a new power and jurisdiction to the Peers in Parliament, to punish the offenders.
The reason of the appeal in the Act of Repeal is in these words, Le Roy apperçevant que le dit Statute fut contre son serment, et en emblemissement de sa couronne et de sa royaltie, et en contre la loy, il fait repealer. There were many other branches of that Statute also repealed.
I next say, this power, now claimed and used in this case by the Lords, is a lessening, or "emblemissement" of the King's Royalty, to use the words of the Act, since no command comes from the King, and no address or petition is made to the King in the matter, nor the name of the King mentioned in the administration.
The King is the original and fountain of all Justice to his people, which is administered in several Courts, one subordinate to the other, of which the Lords in Parliament is or are the highest, by way of error. But though the Judges in these several Courts administer Justice, yet the door into the Court is not opened but by a key, which the King sends under his seal. None can sue primâ instantiâ, in any Court, but by original writ, properly so called, issuing out of Chancery, or by other writ original, not so properly called, yet so called, because when it issues out of the other Courts, there is some occasion of record, real or supposed, which is the ground; of which nature is the Quo minus in the Exchequer, the writ of Privilege in that and other Courts, by officers of record, and the like; but in none of these Courts can any sue for Justice, but he may have a writ under the King's seal, and in his name, without which the Court hath no authority to proceed, nor can the party claim any Justice at their hands. And when the inferior Courts have done their part, if eithe party hath cause to complain in Parliament of the Judgment as erroneous, he cannot do it by petition in Parliament, but must bring a writ of error in Parliament in the King's name, and under the King's seal, to authorise the party's complaint, and the jurisdiction of the Lords, and of the Court.
Nay, if judgment be given erroneously in the Common Pleas, as in this case of Skinner, and if he had (as was proper for him to have done) sued in the Common Pleas, and judgment had been given against him; he could not have made his complaint to the Lords immediately by writ, but must have sought remedy in the King's Bench, and at last before the Lords, if the King's Bench had not done him right.
Again; in the proceedings at Common Law, it is certain, in case the fact be proved, what judgment ought to be given; it is not arbitrary, but regular; not so in the proceedings questioned, which is of great concernment and consequence, for neither party can tell, nor Counsel advise, what judgment will be given, though the judgment at Common Law will be, or would be, certain and foreknown to the parties, or their Counsel, in case fact be proved.
It is our liberty that we may, or duty that we must, seek justice from the King; and it is his honour that we must do it, and it is the observance and duty of his Judges not to proceed in any cause between party and party, but by his commission. It is the mark and instance of the acknowledgment of our subjection that we cannot ask what is our own, but by his writ, and in his name, and argues our dependence on him.
This is not a formality only, but the ill inferences and consequences drawn from the neglect of it go farther than at first sight appears, viz. that the subject, on original petition to him, should have jurisdiction over the estate and person of his fellow subject. Before I leave this consideration, I observe, that in case of error, they cannot proceed to reverse a judgment, without a writ of error, nor in that case neither per saltum, to examine a judgment in the Common Pleas immediately, till it hath passed through the King's Bench; then first, it followeth, that their jurisdiction is not universal; secondly, if they cannot take cognizance of it immediately out of the Common Pleas, how should they do it primâ instantiâ?
I crave pardon to observe, how improper, and how mistaken an objection it is to say, "Why may not the Lords take cognizance of the cause at first as well as at last? Would it not save great expences and attendance to begin there, rather than to be forced there at last, after great expence elsewhere? Is it not easier to attend that Court alone, than that and another too?"
I answer, If the proceeding in the writ of error before the Lords did take in and assume the whole writs of the cause, or if there were new pleadings to be had in the writ of error, or new tryal, the objection had force; but when the cause comes before the Lords by writ of error, there is no new proof or examination of the fact, no new tryal, but taking all for truth, as it appears on the record, without farther question of the fact adjudged. The question in the writ of error before the Lords is this regularly, viz. admitting all facts to be as they are alleged, whether the Law be as is adjudged in the inferior Courts, or that the proceedings have been otherwise than by Law they ought to have been; therefore there is no force in the objection at all. Another thing is, when the suit begins in an inferior Court, the tryal is by Jury, with such advantage as above for indisserence and redress, &c. which before the Lords is lost. And though the Law in some cases allows other ways of tryal, what is that to a case where the Law allows and appoints tryal by Jury, as in this case, and not otherwise?
Next, with due respect to their Lordships, I desire to know, whether or no their Lordships are bound to receive every complaint made to them of weight or consequence, or not? I speak not of petty or mean complaints, justly confined to inferior and petty Courts.
If it be said, Yea, the multitude of causes would oppress them; if it be said, No, I say that that is a kind of legal solecism, or contradiction to itself, for any Court of Justice which hath power and jurisdiction to refuse Justice to any one who duly demands it: When the King saith, Nulli negabimus justitiam, it is that neither he, nor his Judges, nor Courts, shall deny it. The King, in his writs, acknowledgeth himself Debitor Justitiæ; his high Majesty is not at liberty, it is not arbitrary to him, to do, or not do, justice. How then can it be arbitrary to any Court, if it can do justice, not to do it? This must turn the administration of justice in that Court to matter of grace and favour, and consequently not of justice; and justice in a Court, without administration of it, is a notion, not reality.
Again; it will follow that the King's justice, administered in the highest Court, should be in some cases less effectual than in the inferior Courts, in some cases oppressive, and in others altogether ineffectual; this will be best made to appear in the particular instances. If Skinner had received 5000l. at Law, he should have had an Elegit, Fieri facias, or Capias; but on English proceeding here, he can have neither, so the proceeding is not so effectual as in other Courts.
If he had recovered a freehold, he could have no redemption, &c. Suppose that after judgment, and before execution, the Parliament be dissolved, the party hath no remedy there, for the Court is gone, nor can begin again in an inferior Court de novo, the cause being adjudged in an higher Court; and however the proceedings are ineffectual, till a new Parliament; no comfortable remedy!
Suppose execution be granted, and the party in prison, the adversary will not consent to enlargement, though payment offered, and the Parliament is up; here is a case oppressive, but remediless, especially if any disserence or doubt should happen to be in the exposition of the judgment given.
It is considerable to the Lords themselves, whether this jurisdiction be not as disadvantageous to themselves as to the Commoners; let them consider whether it be not most for the interest and safety of their estates for them to be tried by Jurors sworn, on whom they may have an eye, so that their halting, if any shall be, may be discerned, and so be tried by evidence, not affidavit: To be tried there, where if injustice be done, redress may be had, and the injustice examined, or there, where if wrong be done, it shall be to the day of doom. And if any shall be so experienced, as to think there can be no danger, but that whatever shall be there done in so great and high a Council, must needs be well, let him look into the story of former times, and see what convulsions in the State, wars, and miseries, have happened by the divisions in that great and honourable body, when they have accused one another criminally; but if their jurisdiction should be extended farther to civil causes, and to all persons touching estates and freeholds, who shall be blamed to fear consequences ill, and enlarged proportionably?
Last of all, it is clear that where the jurisdiction is changed, the Law is changed, as appears by all the instances of tryal, appeal, proceeding, judgment, and execution, fact and law, equity and law, all blended together, and indifferent and arbitrary.
Friday, April 18.
[The House resumed the Debate of amendments to the Bill for the better settling of the maintenance of the Parsons, Vicars, and Curates in the parishes of the city of London, burned by the late dreadful fire there.]
Mr Attorney Finch.] Before the Reformation in Hen. VIII's time, any man, though ever so ignorant or incapable, with dispensation might take upon him as many livings, with cure of souls, as he could get, (tot quot) be the cure ever so great, or the person that had it ever so ignorant. This Clause makes a person incapable of continuing there that has any other cure of souls, and the Patron is to present, as if void—Would know the difference between a man being a Prebendary forty miles off, and having a living forty miles off—Suppose the person be made a Bishop, will you take away the King's Prerogative of presenting, which, as the Law now stands, he may? as likewise the right of the Peers in their Chaplains? It is against the Law, the King's right, and that of the Peers, with whom we have too much difference already.
Mr Waller.] Is it now to take away the King's Prerogative to let the people go to Heaven? We part with things for ever; the King parts with things for ever; let not the Lords stand in mens way to Heaven—It is said "they must be resident in London;" then shall we be neglected in the country—Thinks the Lords cannot stand with us.
Saturday, April 22.
[Mr Speaker reports, that the House had attended his Majesty upon the Address of both Houses, (voted the 12th inst.) for his Majesty's encouraging the wearing the manufactures of his own Kingdoms; and that his Majesty was pleased graciously to accept the said Address, and declared, "That he did willingly comply with their desires therein, and did assure them, that, as he had already put it in practice in his own person, so he would, for the future, take care that it should be observed by himself, and those of hisfamily."]
Mr Attorney General reports the Conference had with the Lords (fn. 5).
Mr Attor. Finch.] The Lords said "concesserunt," and it is in the records "concessit (fn. 6) "—Importuned the King to make 6s. 8d. and not by Prerogative 40s.—Shall we make this Bellum grammaticale?—If that was so, we fight without book—Tota communitas concessit, "Grants to us by the Commonalty," 33 Henry VI.—Sir John Pilkington's case, if not come in by Pentecost following. He said he was attainted by the Lords and Commons two ways. [Judge Fortescue.] "In matters where the Lords agree with the sense of the Commons, the Lords need not send back to amend circumstances—The Commons have agreed for four, and not two." The prodigiousness of citing this record is strange. This is a case that Brook puts a mark upon to be no Law, in his abridgement of Common Pleas. —Knows a Lawyer who had like to have been imprisoned for saying the Lords book was a memorial, and no record, citing the case of Pilkington—The Lords, till Henry VIII's time, tell us of no precedent of lowering, and yet call it a fundamental Privilege—Is it any derogation to the King to refuse the whole, because he cannot take a part? Did we ever dispute the different power of the Clergy, who by constant practice have been possessed with granting their own subsidies, without alteration, as by tradition, time out of mind? The Lords have no power, but to assert in their House and the Painted Chamber. There will come a time possibly when the Lords may be of another opinion—How came it to pass that the Law, whether Justice should be dearer, and the 12d. on lands, was never disputed with us, but now to be disputed when it comes upon the middle fort of people, Corporations and Merchants? Would not urge our arguments beyond the bounds of modesty, and our arguments need it not, nor do we, to be recommended to the good opinion of the people by the Lords, and let God and the King judge between us.
Mr Coleman.] It is true we found upon imposition of tonnage and poundage that the styles have not varied upon precedents in subsidy, by records, and principally by the precedents of the Lords, that the power is in the Commons; all their nine reasons return to this single one, that they, being part of the legislative power, ought to have power to lower and heighten. In their negative voice, it is but a power of assenting and qualifying what relates to themselves. In Magna Charta, per communitatem concess.—9 Henry IV. is not a fuller authority than that. The Statute of Gloucester. In Prynne's Comment on the fourth part of Lord Coke's Institutes, some of the Lords had been with the King to debate what taxes were fit to be granted—The Commons complain, and a record is extant for settling that right. The Precedent is called "the indemnity of the Lords and Commons." "For the future, in all subsidies where the Commons grant, and the Lords assent, (the Lords do not grant;) the Speaker of the Commons shall carry it up, and present it." No Aid ever went to the King by the Speaker of the Lords House. Record. "In all Aids the Commons grant, and the Lords assent, and the Speaker of the House of Commons shall carry it up." Brooke puts a query upon Fortescue's book, and it is an idle book. The Lords assent, but have not an equal power to grant. The Lords and Commons grant, because the Lords have a negative power.
The Speaker.] Fortescue, 33 Henry VI. was never of that opinion. When the Lords had indorsed "Pentecost next," they sent for the Clerk, who insinuated as his opinion, (who was mistaken in matter and form,) the Lords having passed it but in part. Vide Brooke. The 9th of their wool, and the 9th of grain, and the 9th of all tradesmen.
Sir Robert Howard.] 1 Henry VIII. is a famous Proviso. The Lords have treated with the Commons. In Henry IV's time the Lords and the Commons conferred, but still the Commons granted. Instead of our differing from our ancestors, they differ from theirs. There are above an hundred Precedents to one. In all Henry IV's and Henry VI's time, the Commons gave, and the Lords assent; they give by their own wills. Fairer Precedents could not come from us than they give for themselves—The Lords would not give reasons of the thing, that so the Bill might miscarry at our doors.
Mr Henry Coventry.] You will come to ask, it seems, what the Lords will not give. The business is the grand constitution of the House. If you will argue which is most equitable, if you would have no Traytor, you must have no King. But by reason or convenience, whether the thing shall be better so, or not so, is to dispute the Government—Would ask the Lords, why they give us reasons, and will not admit, but exclude, our reasons, in answer to them?
Sir Richard Temple.] The Lords handled not the Amendments, but put it upon you to determine previously the point in question. Generally upon impositions. Not upon the subject-matter, but either upon the Message, or what fell from them at the last Conferences.
Sir John Birkenhead.] Kirkby, the Clerk of the Rolls, tells Markham, the Judge, that the Lords had amended the Act of Pilkington, but there was no interlining the record, or razure—14 Edward III. is quoted to you; there the Lords called for the Commons to give money. The Lords gave by themselves, and they would bring in Merchants, but the Commons protested against it.
Sir Thomas Meres.] It is now an original matter, and not the Bill that the Lords conferred upon. Order has been the subject-matter of the Message, and not the subjectmatter of the Bill. You ought to acquaint the Lords, that this is not parliamentary. If they had asked it barefaced, it is probable they thought you would not have granted it.
Resolved, That the Thanks of the House be returned to Mr Attorney General, for his great pains and care in preparing and drawing up the Reasons delivered to the Lords, in answer to their Reasons, which was by him performed to the great satisfaction of this House, in vindication of their Privilege, and the just and undoubted Right of the Commons of England. And Mr Speaker did accordingly deliver the Thanks of the House to Mr Attorney General.]
The Bill of imposition on foreign commodities was left thus abruptly, and the Session ended; for the same day the Parliament was prorogued by his Majesty, [without a Speech, or any expression of Thanks for the Aids it had produced,] to April 16, 1672. (fn. 7)