Grey's Debates of the House of Commons: Volume 3. Originally published by T. Becket and P. A. De Hondt, London, 1769.
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Tuesday, May 11.
Several motions were made to go into a Grand Committee upon the business of the preceding day.
Mr Secretary Coventry.] Your Committee being at an end, he knows no ground for the motion. The thing has been debated as long as you think fit, however that unfortunate disorder came yesterday, which he wishes eternally forgotten—But he, hearing some scruple made, that there is nothing in the King's Answer of the men going into Holland, (it was casus omissus in the King's Answer). Has since had discourses with the King about this matter, and he has leave to say from him "that the forces shall be recalled"—These were men he allowed the King of France to be raised with his own money.
Sir Thomas Meres.] This that you have been told, will not hinder the Address, but alter the modification of it. Before we know that is to be had, which the Secretary tells you of, we must make an Address—Would go into a Grand Committee for barely forming the Address; from what has been told you, it must have a farther Address.
Mr Garroway.] Thinks those that moved the adjourment of the Debate yesterday, did not believe themselves at the bottom of the matter, who forbore to a more calm time—Would have a clear Debate of the thing now, with all respect and duty to the King, which cannot be without a Grand Committee.
Mr Secretary Williamson.] More cannot be said than has been said in this matter; the Debate was yesterday ripened, but the numbers agreed not; you may only now put the Question, now you have it expressly from the King—Two parts of his Answer are clear—If you put the Question on the Address, it must be on the remaining part.
Sir Thomas Lee.] Secretary Coventry told you, "He had it not in direction from the King, to tell you what he said," and Williamson tells you now, "You have it clear, directly from the King."
Mr Secretary Williamson.] Does not own it as a direction from the King, out yesterday it was their benef, and now their knowledge, of the King's mind.
Sir Tho. Lee] Believes 'tis the King's opinion, that the will comply with the opinion of the House; but we have no more ground for it than yesterday, and therefore ground for a Debate upon it now. 'Tis a business of great weight. How will it appear that you dare not go into a Grand Committee? Your disorders were so great yesterday, that he would not have that left doubtful to posterity, whether you dare go into a Grand Committee again.
Sir Thomas Carges.] Sees now we are a full House. He is against any restraining of the Question—He is not for taking what fell from the Secretary to be taken for a ground to go upon, as being discourse only betwixt the King and him, and not a Message to us—Would put the Question, yesterday in Debate, to the Question now.
Mr Vaughan.] In talking of the Grand Committee yesterday, we talk of a dream, as nothing. The disorder yesterday must reduce the matter into a Grand Committee again now; and moves it.
Mr Secretary Coventry.] There are precedents of Answers from the King, without a formal Address. In Lord Arundel's case, from March to May (fn. 1) no formal Address, the King not making a satisfactory Answer to the Lords. The Lord Keeper brought the Answer by word of mouth —You may have it so brought here, by particular Members, from the King's mouth.
Sir John Hotham.] If we can have our Question that we stood upon yesterday, is not for having it go to a Committee; but if the Answer be to part only of our Address, till we are plainly told so, would not go into a Committee.
Mr Sacheverell.] He never heard that the House intrusted particular persons with reasons for what they do. He is for the Address, with reasons with it. 'Tis not for the interest of the people to aggrandize France, but to pull her down—Is sure, if Gentlemen had been here, they would have been satisfied with the reasons. The Question now is, "for a farther Address to the King, for recalling his subjects out of France."—In answer to Coventry's precedent.
Col. Birch.] 'Tis now before you, whether you will go into a Grand Committee, or debate the thing in the House. He believes that the reason for going into a Grand Committee is now ceased. Yesterday we were forced to speak oftener than once, and so replies were oftener than once. If there be any reason for it now, 'tis only to show them that trusted us here, that we can govern ourselves better than we did yesterday. If there be a necessity to speak oftener than once, then is for a Committee.
Mr Powle.] The first Question is, "Whether we shall make a farther Address to the King." Tis acknowledged by all, that there is no Answer made to the one part of our Address—That is casus omissus—Would go to the first Question, "Whether an Address be farther made by us?" and then consider the parts of it.
Col. Strangways] Seconds Powle's motion. Yesterday some said, there were 8000 of our men in France; others, but two regiments; the Duke of Monmouth's, and Sir George Hamilton's, and Col. Churchill's reduced; and you take care they be not recruited, when the King shall take care for no more going over—Would not have the House brought into a war by a side-wind—Would have the King of England keep the balance. The House was formerly brought into a war by such a Vote. What shall we desire more? All the world trades in our bottoms—Let us have a native Question, and not complext.
Mr Vaughan.] We come to fight now with our shoes on our hands. We must handle this matter thoroughly. Dividing the Question must bring you into a Grand Committee—Would rather be embroiled in a war, than give up the kingdom. We that have formerly given law to France, may, at this rate, be under the French edicts. The generality of men in England would fight against France—He matters not for them abroad, corrupted in their principles.
Mr Secretary Coventry.] Whoever is against recalling all the King's subjects, is against your Question—Either against the Address, or for all—If any man has a mind for the Address, or no Address, he says so—If for part, and not all, in a Committee, every man comes up to his own opinion.
Sir William Coventry.] It happens that, at this time, he concurs with his brother—Sees not how we are the farther from attaining the Question by a Grand Committee, and there every man's sense is comprehended. The Question is, "Whether the word "all" shall stand." And then a man may vote clearly, if he please—Will not reflect upon yesterday; therefore desires that what we do may be unanimous in a Vote to-day. If the word "all" do stand, the Question will be divided again— Moves, therefore, for a general Question, "his subjects out of France," without the word "all;" and the next Question, "Whether the word "all" shall stand?"
Sir Thomas Littleton.] The season being come for what he intended yesterday to move, shall now do it. He differs from Coventry only in circumstance—Not so much as a Question, whether a farther Address—'Tis yielded that it was casus omissus, and therefore not of that importance for union—Shall only say, to the objection of involving us in a war with France—Shall we not fear the recall of our ships, and shall we fear the recall of a few men? And, should France declare war upon it, he believes that gentlemen would willingly contribute towards it. We have no great reason to apprehend a war; and, if we should, he believes the King would be assisted by the nation.
Mr Garroway.] Could he foresee what Coventry says, should not be against going into a Grand Committee— Fears that, in Debate of particulars, we shall go into new heats—You, by the word "all," bring an unanimous Vote.
Sir Thomas Lee.] The case is altered now; we are come out of the Dutch war. You are told, "France are masters of trade;" and shall we enable them to be so?
Mr Secretary Coventry.] When the King of France has the King's honour engaged in the matter, one must be better versed in matters of honour than he is, to know how to release him from his engagement. The King of Spain does not expect you should be angry with your own King, the King of England, for his sake. Consider how gracious the King has been in his Answer to you.
Sir Nicholas Carew.] You have objected from the Bar "all." You may except the Scotch in France, if you please. If the King of France has had leave to raise men, must he have them for slaves? We have done him more service than he has done us. And hopes men remember how the French fleet served us.
Sir Thomas Littleton.] Coventry objects, "if these original men should be recalled, France would have nothing for her money, being raised at her charge."—He explains himself; France has had great benefit by these men. They got Maestricht (fn. 2), and other places, which makes a sufficient recompence for them.
Mr Secretary Coventry] Would be answered, if any man could show him where the King's honour is clear in the matter—The King has told you his reason, and would have it considered, whether recalling those regiments is of such value as to make the King break his word.
Mr Powle.] It seems, the King has heretofore given the French leave to raise men, and therefore must now. 'Tis now clearly seen, whither France drives and tends. The treaty with France is carried on contrary to the pur pose it was first intended for; and being against the safety of the nation, was the great reason of France's invading Flanders first. Obligations and oaths bind not in the case of the first. Obligations and oaths bind not in the case of the interest and preservation of his people. The case is clearly this: Whether we shall give assistance to France, or no. He thinks the case rather runs to resistance. France preponderates, and therefore 'tis not our interest to add any more grains to the scales. If war should hereupon ensue, he should be as forward to assist towards it as any man—Would have it put, "Whether the word "all" shall stand in the Question."
Mr Sawyer.] The difference that is made, is between the men that went over before the treaty and since— There lies the difference—To one part we have an Answer, to the other part of our Address, none. 'Tis said, "That the King's honour is no argument"—The true argument is not, whether 'tis against the King's honour, or no; but whether the King thinks so And you put a hardship upon the King to say, 'tis not against his honour; therefore would leave out the word "all." He has heard, without doors, gentlemen aspersed, that we are half Frenchmen. But whilst we are expelling the French, let us not expose the honour of the King; and in that we are true Englishmen.
Mr Finch.] Would be unwilling to lose in a great measure "all," because we cannot have part. If by the Address to the King, we can have 7 out of the 8000, we ought not to expose one part to lose eight. When we have got the King to grant this, it will have little effect, most of these men in France being such as will have little livelihood here, when they return. If they could have stayed, few would have gone. Suppose they should come over, how far can 2000 men turn the scale of so great an army? It was insinuated, yesterday, to be against the King's honour to recall them, when the Dutch and the Spaniard never insisted on it, and we, that are out of danger, insist upon it, and they near. 'Tis not so decent a way of argument, that, because the King has granted us so much, he should grant us all— There's difference between France's case and ours. France could not so easily part with the rights of that Queen to Flanders. The King of England breaks a word in his own power to keep. The French King's right to Flanders is in his wife, and not in his honour. Next consider, whether it be prudent for us to do this, or no.
Mr Vaughan.] We want men for servants to eat our bread. It is insisted on, that we put a hardship on the King. If the King makes a promise destructive to his honour, they are not the King's words, they are his advisers, who would screen themselves under that sacred shelter, and stain the royal robes with their own guilt. The King told us, in his Speech, "he would stick to his Declaration;" and yet, upon our reasons, he revoked it. Now, say the Dutch," 'tis a national concern; the Parliament takes notice of it;" and if the Dutch should break with us, because the French are not removed, they have just grounds for it.
Sir Thomas Meres.] Our jealousies of Popery, or an arbitrary Government, are not from a few inconsiderable Papists here, but from the ill example we have from France. You have twice voted the thing; and, to avoid the censure of a volatile temper in yourselves, is this Vote desired. The 2000, spoken of, were mowed down by the war; they were 9000. But it's not the fetching 2 or 3000 men from the French, but your showing the sense of the nation, and strengthening the Confederates, who, in effect, fight your battles; and shall they be discouraged? 'I were better the Question had never been started, than not carried in the affirmative.
Sir Edward Dering.] If ever wisdom and moderation were requisite, 'tis now. The King has professed no other intention to us than kindness: The reputation of this Government abroad depends much upon the good correspondency betwixt him and us. Foreign Ministers, that correspond abroad, have represented that our frequent recesses may be from a misunderstanding betwixt the King and us—But when shall we do it? Now more seasonable than ever, when the King asks little, and expects as little from us—Would not, therefore, press the King farther in this. The King's honour is ours—And is against an Address, which he is so morally assured we shall have denial of.
Col. Bitch.] Agrees with Dering, that the thing is of great weight. Our resolves, in this case, will make the people of England either merry or sad. The King has called us together, and believes 'tis to have our resolutions in this matter—The King knew the people's temper, in this matter, before we came hither; and now this requires plain dealing. On the advice of this House, the King made a league with Holland, and his honour was as much concerned then as now. The King says, "he cannot, with his honour, recall these men;" and whenever the King says so again, the consequence will be, we must say so too, and go home. He knows not how to bring off the King's honour, but in this way we are in—Possibly he may say to the Dutch, "He was forced to continue these men there: But, at the intreaty of his people, he will recall those remaining." If the gentleman can tell what to do with 5000, he can tell what to do with 2000. In short, the people are unquiet in their minds, and is consident the King is so too—Hopes no-body is so uncharitable as to call men Frenchmen, that vote here—Would willingly be delivered out of his fears, without this word "all"—Must some continue with the French King, to insinuate their principles into us? sylla did cause his soldiers to repair into Scipio's camp, being acquainted with craft and subtlety as well as himself, where, being conversant, they corrupted Scipio's men, with money and promises, and by that means brought off 40 ensigns. They have been well taught at sea; would not have them at land too. He cannot forgive those men that were the occasion of it—Who will ally with us, or help us? Will the Confederates do it, when a body of our men oppose them? When the Dutch see so little assistance from us, will they help us? 'Twill be too late to do this, when France has made peace. He sees no way to come at our own safety but by this way, and, therefore, would have the word "all" in the Question.
Mr Sacheverell.] Would know, whether 'tis less honour for the King to break his word, or his oath; and reads the King's Coronation Oath. If any man will say, mischief of damage may not come to the nation, 'tis not against his oath—By leaving the word "all" out, you approve of these men being in France.
Sir Lionel Jenkins.] By Sacheverell's inference, to change laws, one branch of the King's oath is taken away. As the Parliament cannot be thought infallible, so the King may deliberate. He is unsatisfied at the doctrine taught here of leagues. We find them not in any discourses in the Roman Senate; but when leagues were once made, they were sacred. The case is as in ordinary reconciliations. He leaves the King to judge of his own honour—His character and greatness makes a private man no way capable of judging it. He hears some men speak of a war with France.
Mr Vaughan.] Took him down to Order. Would not have any man mis-recited—No man spoke of a war with France.
Col. Strangways.] Justifies Jenkins. He appeals, if arguments here have not been that way?
Sir Thomas Lee.] Takes Strangways down to Order, for taking another down; and beginning to argue himself,
The Speaker.] "We" is not a parliamentary expression; and no man can answer but for himself.
Sir Thomas Meres.] We that have spoke for this question may be said to do it.
Sir Lionel Jenkins, proceeds—He begs pardon, if he understood not the Debate right; speaks only to argumentation—Sacheverell speaking of his country's inclination, it war were with France—He is sure, that the sense of the House is against a war with France, at the present—If not for a word, desires that nothing provoking be done to a war. 'Tis a fundamental rule in neutrality, one Prince shall not make another better or worse in war—Has the King of France raised those men with his own money? Can he hang a man for running from his colours? The recalling the men is weakening him, and by consequence breaks the neutrality. Why, are not the Dutch men of war under—canon of freedom, and under protection in our ports? The King cannot make their condition better than it was before. Any merchant else may carry arms, which they cannot do, because they are contraband goods—If this be allowed a ground of neutrality, the recalling those men has an influence on the war; and, if done, a just ground of war on the King of France's part. 'Tis a subducting. In 1635, in the French war, the Emperor thought Treves subjects to the Empire, and he seized it—The neutrality with France unjustisfiable—The war with Holland was for his own glory; and this is as little justifiable as that, being a subtracting from him; and therefore he is against the word "all."
The word "all" was, upon the Question, left out of the Address. [173 to 172.]
[Resolved, That a farther Address be presented to his Majesty, for recalling his subjects that are in the service of the French King.
Wednesday, May 12.
Resolved, That Dr Thomas Shirley be sent for in custody of the Serjeant at Arms, to answer his breach of privilege, for prosecuting a suit, by Petition of Appeal in the House of Lords, against Sir John Fagg, a Member of this House, during the Session, and Privilege of Parliament.
Ordered, That Sir John Fagg do not proceed in the Appeal depending before the Lords, without the particular leave of this House.
Adjourned to Friday.]
Friday, May 14.
Report from the Committee appointed to inspect the Lords Journal.
"That Thomas Shirley, Esq; petitioned the Lords [April 30] against Sir John Fagg, in an Appeal; whereupon Sir John Fagg was ordered to put in his Answer, [on Friday, May 7] if he think fit. Then there was a Message [May 5] from the Commons, viz. "Being informed of the Petition against Sir John Fagg, they desire the Lords to take care of their privileges." Ordered, That the Committee of Privileges meet to consider of the Message from the Commons, and to search precedents in the matter. May 6, the Earl of Berkshire reported, "That the Committee have considered of the Message from the Commons, and are of opinion, that 'tis the undoubted right of the Lords [in judicature] to receive [and determine] any Appeals against Members of either House, in time of Parliament, that there may be no failure of justice in the land."
"The Lords agreed with the Committee."
"The Answer, in the case of Mr Hale, was, "That the Lords will have a regard to the privileges of the House of Commons, as they have of their own." The same Answer they made in Sir John Fagg's case. Sir John Fagg appearing at the Bar, on Friday, [May 7, and desiring longer time] the Lords ordered Sir John Fagg to have a farther time for putting in his Answer [till Wednesday, May 12,] and Fagg then put in his Answer accordingly."
Sir Thomas Lee.] Observed, That another of your Members, Mr Arthur Onslow, has a Petition against him by Sir Nicholas Stoughton, and he is ordered to put in his Answer on Monday next—On Wednesday you ordered Shirley to be sent for in Custody—Would know how your Order has been executed.
Sir John Norfolk [Serjeant at Arms] said, "he had not his Order till this morning; and Shirley was not to be found."
Mr Secretary Coventry.] Hopes you will give the Lords Court as much honour as any other Court; as that of Chancery.
The Speaker.] If a Member wave his privilege, he does what he ought not to do; it is the privilege of the House—It may be an argument to punish the Member, but not to wave the privilege of the House.
Sir Thomas Lee.] The Question is not now, Whether Shirley shall be punished for bringing an Appeal against your Member; you have resolved that part. The Question is now, What you will do as to the Lords breach of your privilege?
Sir Robert Howard.] The Question is not, Whether your Member shall wave his privilege, or no; he has addressed to you; and now, that he has made his appearance at the Lords Bar, 'tis not possible for him to wave it. The point is, whether Fagg shall now wave his privilege? Shirley might have brought his cause into any Civil Court, as well as to the Lords Bar. Now, that your Member has made his appearance, you must consider what your Member has done. The Lords say, "'Tis their right, that so there be no failure of justice." In Prettyman's case of imprisonment upon an execution, you delivered him, to preserve your privileges; and there will be always a failure of justice in time of privilege—Would, therefore, enter your own privileges into your Journal, as the Lords have done theirs. Your Member is, without doubt, to blame, for appearing and proceeding, without your leave.
Sir Thomas Clarges.] Would not have a failure of justice, as Howard says—He has heard say, Appeals in the Lords House are not ancient. If they have begun any time within memory—we are not to take notice of them. Where a breach of privilege shall take away a man's freehold, very dangerous—Few Peers are present at the hearing, that are at the sentence. If their jurisdiction be not ancient, would hear the Lawyers in it. The Lords are a Court of Law; but, by taking Appeals, they are a Court of Equity. The Star-Chamber, the Court of York, the Court of Requests, they all fell, because they were not of legal constitution—The High-Commission Court was by Act of Parliament—Would have the Lawyers give opinion in this business.
Serjeant Seys.] In cases of great concern, your Members cannot wave their privileges, without leave. For Appeals, 'tis not to be denied they are a Court of Record; but Appeals must come from Courts of Record to them. They must take Appeals out of the judicial part of Chancery in the petty bag. Writ of error, to that Court, lies not for matters in that Court by subœna, or scire facias, but out of the petty bag, as conditions in law, bargains, and contracts, &c.
Mr Sacheverell, one of the Committee for inspecting the Lords Journal.] Finds the case, that Shirley petitions against Fagg, by way of Appeal to the House of Lords—Shirley had exhibited a bill of discovery against Fagg in Chancery, which Fagg pleaded to, as a purchase on a valuable consideration. The Court says "they have no farther cognizance of the matter," and dismiss it. Now Shirley appeals. An Appeal supposes a judgment by record; and the Lords make a Judgment, and have no record before them, nor can have. If they take cognizance of this, they rest themselves in what the law may relieve. If they meddle with such an original cause, 'tis a hard case for the purchaser to discover his estate. In the Lords Journal, the matter is referred to a Committee of Privileges—They think, it seems, that all Appeals (not limiting themselves to this) ought to come before them, "to avoid failure of justice"—They have entered into their books, "that they will be as careful of our privileges as of their own;" and, in the mean time, they have proceeded in the cause against Fagg, barely as a Court of Equity, without any record before them—Would have the Counsel's opinion in it.
Mr Powle.] The Question is, Whether your privilege is violated, or no? In that you have given yourselves redress, by Shirley's being sent for in Custody, and ordering your Member not to proceed any farther—He concurs with the motions for consideration of the power the Lords have in these Appeals, as an arbitrary jurisdiction. The thing is of no antiquity—Upon search of records, sees not the least shadow nor footsteps of it. The first was in the case of Magdalen College in Oxford, 18 James. The Lords had no jurisdiction of the matter, and the Decree in Chancery stands good to this day. There are precedents of their taking Appeals, in the time of the Long Parliament, in irregular times. Resolution in Henry VI. time, "that errors in Chancery are on the petty bag side only." But by subpœna and English Bill they are not, being not matters of record. By this way, Chancery may be extended to any jurisdiction whatsoever, and so causes come to be determined by the Lords, and no record before them. This will be a great inconvenience in the very frame of the Government—Moves that Tuesday next may be appointed to take this matter into farther consideration.
Sir Thomas Lee.] Takes the case to be this—Here is a Petition delivered by Shirley, and an Answer put in by Fagg; they may proceed—and your Member not heard. There is no way, but by a Message to the Lords not to proceed any farther in the cause. A Judgment entered against your Member, and privilege destroyed, are never to be redeemed more. The Lords take Appeals, and you forbid your Member to proceed. If the Lords proceed, the business is riveted for ever—Moves, therefore, for a Conference, that your Member may be no farther proceeded against.
Sir Thomas Littleton.] How long would you have the Lords suspend proceeding? Unless you determine it thus: "Not to proceed presently in the matter."
Sir Thomas Lee.] Meant no more than this; at the Conference, to desire the Lords to suspend proceeding during the time of your privilege.
Mr Sawyer.] If an Appeal would lie, it must in this case. If there can be an Appeal, the subject is in a worse condition for it; for one Chancellor may give away any man's right. Writs of Error, in all ages, were brought. If Appeals, in latter ages, increased in the Lords House, 'tis no wonder; the Chancery having got most causes into that Court, which formerly were but frauds, and those but in few cases. If you say, you have privilege in this case, the Lords will say so too; and so perpetuate the privilege, and the party have no relief whatsoever. To say, that privilege began when Parliaments were short, is no argument. There is a presumption that the Commoner shall be chosen again, if he has not misbehaved himself, though not infallibly. Would go well-armed to Conference in these things; and is for Tuesday, &c.
Mr Sacheverell.] There is no need of that caution 'twas told you below, and moved above, that the Lords would proceed no farther. If the Lords are not satisfied, then they desire another Conference, and you have time to think.
Sir Thomas Clarges.] You must have some foundation to go upon, by the Lords Answer—Would have a Conference upon that Answer, and show the Lords how nugatory it is.
Sir Edmund Baynton.] 'Tis a proper time now to send to the Lords such a Message—The Lords reply not at a Conference; they only hear your Managers.
Serjeant Maynard.] To point of privilege—Finds it not yet resolved a privilege, that a Member of the House of Commons shall be sued at the Lords Bar. He sees not how it stands with the right of a Commoner to be sued, without the consent of the House, or himself—And knows not how that man, tied to personal attendance publickly to one place, can be called to another—And whether ever there was a precedent, that a Member of yours was sent for to the Lords House, without his consent. If you make it not a privilege—Causes there are not for an hour's attendance, and many of us may be called to attend. Matter of Jurisdiction, a high and a great cause! If this be not Arbitrary Government, to take away a man's estate unheard, he knows not what is. The word "Appeal" is very ancient—as for Murder, and in the Ecclesiastical Court. But doubts that this thing of Appeals, from the Chancery, is not higher than his time. —Would not have a sudden resolution in the matter.— Would take farther time to consider of it. But is not for Conference, till you have cleared matter of fact.
Col. Titus.] Believes Maynard mistaken in the matter of fact, about sending for Shirley—Since, all along, you have made it your privilege, and Fagg has answered, "he would appear according to the Lords Summons;" he is to answer to you for that—He says, "you are not ripe for Conference"—The Jurisdiction of the Lords is of great moment, and must be considered as the importance of the matter requires—But, for your privilege, your Member may suffer in the mean time. 'Tis a greater matter to prevent than to help, when privilege is once broken—Moves therefore for Conference—The matter is under consideration—And not to proceed farther.
Sir Thomas Meres.] Believes, as Maynard says, that Appeals you will not find very ancient—Is of opinion, that you are over that point of breach of privilege; but if it be not clearly expressed, would do it better—They sent you but half the Order—That of your Member, but not of their own right. By taking Shirley into Custody, you imply a breach of your privilege; and the House apprehended it so; else why did you take him into Custody?—Would have the records searched, and reported, with your reasons for what you do. The Lords labouring these points more than any upon you, and books written upon them. This very point the Lords once yielded us—Would have our reasons prepared, and then a Conference.
The Speaker.] In Mr Hale's case, after your Message was sent to the Lords, "to have a care of your privilege," there were no farther proceedings. In Fagg's case, you might have had some success, but for your Member's proceeding, and appearing at the Lords Bar, which yielded the matter. You find your privileges invaded, and desire no farther proceeding. If you send such a Message, at Conference, the Lords will be upon rejoinder.
Sir Thomas Lee.] If you ask for a Conference first, you may come to a free Conference on the Lords Answer; but, if they begin with Conference, we shall never have a free Conference.
Mr Garroway.] He remembers the haste in Skinner's case, and you had many Conferences—We must be beholden to the Gentleman of the Long Robe, for their help in this business; other Gentlemen being not bred up to it.
Sir Thomas Lee.] The Lords made their Order the fifth of May; but Fagg puts not in his answer till the twelfth of May; which he observes, to show you, that your Member did not obey your Order.
Mr Swynfin.] The Lords have entered it on their books. "That they have right to proceed in an Appeal brought against one of your Members, as in one brought against one of their own." The Lords have issued out no Order for your Member to appear, but an Order only to put in his Answer; and the cause to go on. A Bill, it seems, was exhibited by Shirley against Fagg, to compell him to discover his title to such an estate. He answers, "he is a purchaser on a valuable consideration." He takes the breach of privilege to be this claim of the Lords of right to judge of an Appeal—though "careful of your privileges as of their own." Yet, withall, they tell you, "that they may take Appeals against their own Members as well as yours;" they assign a day, if Fagg will put in his Answer; here is no compulsion upon him; but the breach of privilege is "assigning a day," which is, in effect, compulsion on your Member, undoubted—Not to be called to any Court—But he is not to be diverted from his attendance here, and has the same privilege for his menial servants. Why, is not this privilege in the Lords House, as well as in other places? The Privileges are more ancient than the Courts of Law, or Chancery, hundreds of years. The jurisdiction of Chancery is but late, and so must Appeals to the Lords House from thence be. There can be no failure of justice in the case, because the Cause might have been remanded into Chancery. This proceeding of the Lords is, in effect, original cognizance; taking the whole cause, which the Chancery did refuse. Your breach of Privilege is, diverting the attendance of your Member, and not referring the Cause back into Chancery—This is a Judgment not to be done but by the whole Legislative Power—Would come to such a Question, "Whether it be a breach of Privilege, &c."
Resolved, 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] are a Breach of the undoubted Rights and Privileges of this House.
The House was informed, that Lord Mohun took away the Warrant (from the Speaker, to attach Shirley) from the Serjeant's Officer, Craven, violently, and detained it; the Serjeant's Officer attempting to serve the Warrant upon Shirley in the Lords Lobby.
Sir Thomas Meres.] Though your Officer might have been apprehended by the Lords in their Lobby, yet Shirley, as a Commoner, ought to have obeyed your Order. Shirley will not always be a chicken under the Lords wings: Let the Serjeant make more deputies, and take him.
Sir Robert Howard.] The Lords might have proceeded, but no one Lord can take a Warrant away from your servant—It seems that Lord Mohun will make himself judge of the matter—You ought to complain of him to the Lords.
Sir Thomas Lee.] Moves, immediately to desire a Conference with the Lords, to desire justice of the Lords against him; and would send presently, left a Message from the Lords might intervene, and the thing be interrupted.
Mr Secretary Coventry.] If the Lobby has the same privilege with the Lords House, he knows not how you can complain of Lord Mohun for what he has done. If that place be not a place to serve your warrant in, he knows not what may come of it.
Sir Robert Howard.] The Question is, not upon the place, but for a Lord to do such an action, and have no Order for it.
Mr Vaughan.] It may make the Officer guilty, but not the Warrant void.
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 into Custody; and to demand justice of the said Lords House, against the said Lord Mohun.
[Ordered, That the Speaker do issue forth a new Warrant to the Serjeant at Arms, for apprehending Dr Thomas Shirley, &c.]