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 18.
[An ingrossed Bill from the Lords, for explanation of an Act, for preventing dangers which may happen from Popish recusants, was read the second time.]
Mr Secretary Coventry.] The Bill, as it now stands, seems to be to prevent inconveniences that may arise from the growth of Popery. As the Test is penned, if a Master of Arts take it at his commencement, that shall suffice, and he need not take it again, if made Archbishop of Canterbury thirty years after; and then he may be a Papist.
Col. Titus.] The greatest inconvenience, in your former law, this Billomits. Chargeable offices may be excused, by not taking the Test. As Sheriffs, the case of Sir John Read, in Hertfordshire; therefore would have that taken care for, in the Bill, at the Committee; and from a small office to a great one, as you have been told.
Sir Edward Dering.] Generally, an explanatory Act to that Act mentioned, has been wished for in his county. Many able persons have laid down the Commission of the Peace, for the doubt of this Act, that those that have once taken it, are obliged to do it no more; but he thinks that to be no objection. Persons not obliged for the same office, toties quoties, to take the Test.
The Bill was [ordered to be] committed.
The Answer from the Lords, reported by Sir Richard Temple [who had carried up the Message in the case of Mr Onslow.]
"The Lords do declare, that it is the undoubted right of the Lords, in judicature, to receive and determine [in time of Parliament] all 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."
Sir Thomas Lee.] Thinks that the Long Robe are not better judges in this matter than ourselves, how far you can agree to their right upon your Members. The Lords asked your Members, the last Message, for their Reasons—Would have a Conference sent for to the Lords, and there would give your Reasons—Would have the interrogatory assertion of the Lords entered in your book; but he sees no reason that your Members should be more drawn to their Court, in time of Privilege, than to other Courts in Westminster. Moves to have the Vote of the House read; which was,
"That it is the undoubted right of the House of Commons, that none of their Members be summoned to attend the House of Lords during the Sitting, or Privilege, of Parliament."
Sir Richard Temple.] You cannot have any farther Conference with the Lords in this matter, than you have had already. As for this of Mr Onslow, " They will not depart, they tell you, from the right of taking Appeals." Sees not how they can deny you a Conference generally.
Sir Thomas Clarges.] He sees the Lords have taken no notice of what you sent them at the Conference; for their taking Appeals from Chancery, what fruits of Magna Charta, or Freehold, have we, when, by a paper Petition, the matter is brought to the House of Peers to be judged?
Sir Nicholas Carew.] Desires only, for the present, to assert your privileges, and secure your Members from being called from their attendance here. The cases of Appeals may take up the whole business of a Session, but, in time, may be rightly understood.
Mr Powle.] Granting that the Lords have this jurisdiction of Appeals, yet they have it not upon your Members. Their attendance is as necessary here, as the Lords in their House; and they are called from their attendance here, as well as if they were sued in WestminsterHall. Their Answer is very unparliamentary—Proposes, as his opinion, to demand a Conference, on our privileges, with entering a salvo, "that you do not, by that Conference, bring your privileges in doubt."
Mr Sacheverell.] Your right of privileges is easily afserted, without the help of the Long Robe, which he would first assert—Moves, "That the assertion of the Lords, in their Message, may be voted contrary to the rights and privileges of this House, from which we will not depart."
Sir Thomas Clarges.] The last part of the Lords Message is a vote of the strangest nature he ever observed: "From which they will not depart." This is fatal to Monarchy. He knows not where such an assertion may end. The King is pleased to take our advice, and redress things—Will they assume greater authority than the King did in the Declaration? This is language like a high Court of Justice asserting their authority.
Col. Titus.] For things apparent we need no farther information. You have your privilege given, not to be drawn from attendance of this House. Why should there be a failure of justice, as alleged? Acts of Parliament may help it, and petitions to this House. As the Lords say, so let us, "That it is the undoubted right also of our Members, that they cannot be called from their attendance here to any Court whatsoever, from which they will never recede."
Mr Powle.] Eternity of place is as strong in the House of Commons, as in the Lords House; though not to our heirs, yet to our successors. He has heard, that Lords (fn. 1) have wrote letters, that they are weary of us. It seems, by these proceedings, they are so. If the Lords must call us to their Bar, by receiving Appeals against us, we are under their command—Would assert our rights, as they have done theirs.
Mr Secretary Coventry.] At that rate of positive assertions we are at, we shall never meet at a free Conference.
Mr Swynfin] 'Tis good that the Lords have Appeals from Chancery—It would be worse to have them under the determination of a Chancellor, or in a Judge's breast; much better under so many Judges in the Lords House —And farther, they say, "They have such a right, though a Member of yours be concerned." They imply it over your Members, though not directly express it— Not expressed in their Answer, plainly; they do not in terminis deny, though, in the consequence, they involve Members—He fears you will not have a Conference— You have sent for Shirley in Custody.—Called to Order by
Sir Thomas Lee.] He applies his argument to Fagg's case; and your Debate is to the Answer of your Message yesterday.
Mr Swynfin goes on—If any Court proceeded against your Member, the way is, not presently to proceed against the party that brought the suit against him, but against the officers that summon him to appear. Your Warrant was to bring Shirley before you. The Lords would know whether you granted such a Warrant, or no. You have prepared Reasons for Conference, singly, from their individual power over your privilege, only. Possibly that Conference may give some farther inlet. This is a Question, whereof never Debate was before; he finds and knows nothing of it. It being a new Question, 'tis some inducement for the Lords to hold it strongly—The practice has been where silently the thing has passed over. Now there's an universal Appeal, by frequency of Parliaments; the Lords House becomes a standing Court over the Chancery, which could not be when Parliaments were short. As 'tis a new case, so this case must be determined on the common right of the House; not to be diverted from attendance, on any Court, in any cause. A general right—Laws have provided, that country and kingdom are concerned in the attendance of the Members, and they are not liable to any diversion. That being the reason, why not as good to be diverted to the Courts of Westminster? Some reasons the Lords must show, why the attendance of your Member must be in theirs, more than in other Courts. They cannot be Judges—Never heard of a superior Court in our own privileges—The reason is the same as in all other Courts. It must come to the remedy of a law; they having no judgment over you, there can be "no failure of public justice," but a private Act, in a particular case, is not to be preferred before the public justice of the nation. You send a Message, for a Conference about Shirley's proceedings against Fagg, which they cannot deny you—By way of Answer to their Message, thinks it better to stay till you have an Answer in that, before you farther proceed as to the general matter.
Sir Henry Ford.] Mei judices et adversarii. Thinks it would do well, that the Lords judge of our privileges, and we of theirs—We are afraid that will happen, which was never done before—By impeachments at the Lords Bar, you may draw out all their Members—As in Lord Strafford's case—Abroad you think you have the worst end of the staff, and would have you well advised in what you are not able to maintain.
Sir Nich. Pedly.] As to privileges, many Members that are Country Gentlemen know them better than those of the long robe. As to this case—One said, "There's never a precedent"—Then sure 'tis an innovation. The Lords privileges must be grounded on their jurisdiction, as a Court of Law, but never as a Court of Equity, which must be either by Act of Parliament, or long prescription. Causes in Chancery have their gradation by error, but never by paper-bill. Anciently the Chancery judged according to Law, having had the assistance of the Judges. It never judged arbitrarily, but sent down to the Judges—In course of Law. First preserve your privileges, and then go on to consider your Address by Conference.]
Sir John Trevor.] "The Lords deny privileges to their own Members, why then not to Members of the House of Commons," is the Lords argument. The Lords are perpetual, and privilege attends them, and they are in Parliament for ever—Privilege here is but accidental. A man has no assurance of himself, or his son's being here, upon a new call of Parliament. Privilege contra legem is void, the privilege of the Commons is not contra but præter legem. Commons have had privilege against the King, (with reverence speaking it) unless an accomptant or an immediate officer of the King's. Moves for Conference.
Mr Vaughan.] If he sees any thing, these questions are as dangerous to the Government as may be; your business is barely the case of privilege, and so only you are to consider, whether any thing can divert your attendance here, when the lives, and liberties of the people you are to represent, are at stake. By the King's Writ, your attendance is your right, and 'tis highly penal to neglect it. 'Tis against common reason at one and the same time to be in two places, at once, by the King's Writ. 'Tis against Common Law, when a man is in public employment abroad, in partibus transmarinis, not to be sued. He cannot serve abroad, and have his private fortune ruined at home; there's the same reason for Parliament attendance. These privileges are essential to you, you are to judge only; when they come under other rules to be judged, they cease to be yours. We never yet had any questions asked us by the Lords, by way of message, before. For their argument of "failure of Justice," that may extend, that the Lords shall make law only. The Lords say, "they will stick to this privilege"—You may assert your privileges by Conference, and, if that will not do, he shall hereafter propose another expedient.
Sir Thomas Clarges.] We think our security good in the Lords House, it may be, because the judges are there—The Lords say, "There will be a failure of Justice if we do not appear." But they cannot imprison one of our Members, in any case, and then they cannot execute their judgment—Here will be "a failure of Justice."
Mr Waller.] Doubts whether the words, "in criminal matters," will be safe for us to use—If, upon occasion, a great many of our Members, should be sent for away, under that pretence—Would have the vote, "in all civil causes only."
Sir Thomas Meres.] Our business is with lands only, that court dares not meddle with our persons—Would have the words, "other courts," put out.
Sir Thomas Lee.] In case of impeachments, a Member may be sent to the Lords bar.
Mr Powle] Answered him—That the Member is first suspended his attendance here, before you impeach him.
Resolved, That it is the undoubted right of this House, that none of their Members be summoned to attend the House of Lords, during the sitting, or privilege, of Parliament.
Sir Thomas Lee.] The Lords have answered, "that Lord Mohun has done nothing but his duty," that is, to take away your Warrant from your Messenger; the Lords have examined the matter, and find it otherwise than you represent it; but never tell you so—This still entangles the matter.
Sir Thomas Meres.] Your Serjeants and Deputies are threatened to be taken into custody by the Lords; we shall defend our Lobby, he believes. They know we are angry people, more than we used to have been, with them. Some of our reasons are poignant, and he would go through with them, and have our right, in chace of the main points, without so many things on foot.
Col. Birch.] 'Tis easier to fall out, than fall in again. He thinks you have the clearest matter before you that can be; some reasons you have before you, and would have you add more. If in any thing you have advantage, 'tis in that Catechistical Message the Lords sent you. The House goes safe ways in Conferences, and Messages; bye-ways are to ask questions. If he meddles, he would be pretty sure in what he does—Proposes farther reasons against to-morrow—When we shall be a little acquainted, by Conferences, he hopes something of good may come of it.
Sir Thomas Lee.] What Birch says, was considered at the Committee, which concluded that might be delivered at a Message, which might be at a Conference.
Sir Thomas Meres.] For matter of fact, betwixt the Lords and us, we may look into one another's books —There's some punctilio in the Warrant the Lords might not know, but must be acquainted with at Conference.
Col. Birch.] The Message from the Lords, is, "to know whether the House ordered that Warrant, then on your books."
Sir Thomas Meres.] A Warrant is on your books, but not that Warrant.
[Resolved, That a Conference be desired with the Lords, on their Answer to our Message, concerning Lord Mohun (fn. 2); at which Conference the vote, viz. "That the Message from the Lords about the Speaker's Warrant, is unparliamentary," with the reasons of it, were delivered.]
Notes taken from the Counsel that pleaded Chester Election, (fn. 3) between Col. Werden and Mr Williams.
Cives, is the literal exposition for "All Men"—"Pro se et communitate prædict." is the return of the 18th of K. James.
The 23 H. VI. recites that of H. V. "resident, in Cities and Boroughs."
Wednesday, May 19.
[An additional Bill to prevent the growth of Popery, was read the first time.] Heads of it.
"After conviction, a Commission to issue out for the forfeiture, and to vest the forfeiture in several Commissioners, to value and seize the estates, &c. The Commissioners may have resort to the Courts where the conviction is made,—to levy the forfeiture—And they are, at the Summer Assizes, to chuse a Treasurer for the Money; and, if he runs in arrear, the Commissioners are to answer it—Allowance to the Treasurer, and Clerks, and Commissioners service, out of the forfeitures; with which forfeitures they have power to purchase Impropriations, for the relief of poor Vicars. The Commissioners incorporate.
"Justices have a right to punish Constables, and Church wardens, for neglecting their duty in presenting recusants, and may reward such as do their duty—The Commissioners may issue process to the Constables, and Churchwardens; not to be removed, reversed, stopped, or discharged any way—Recusant not to be double charged, and may appeal—If a Commissioner be sued, and no damage recovered against him, he shall have double costs. If the recusant subscribes to his estate, shall be discharged. Provision against fraudulent Conveyances. Owning and advising such Conveyances to be maintainance. No convict recusant capable of gift or legacy. Members of both Houses, not taking the Sacrament, according to the Church of England, disabled from sitting. Any man discovering another that shall say Mass, to be rewarded."
[The Bill was ordered to be read a second time.]
The Bill for appropriating the Customs to the use of the Navy [was read a second time.]
Mr Powle.] Queen Elizabeth farmed the Customs for 40,000l. per Ann. never for 50,000l. King James farmed them for 160,000l. The great abuses, and diversion of the uses of them, for the Navy, are the Pensions paid out, and the petty Farms. He knows not any reasons why the public money should be put to private services, though ever so great. In time, such Pensions may swallow up the whole revenue. The charge of the Navy will increase, as long as the King goes to market upon credit. Another thing is, debts, and charges must be considered. Men will not venture much on the thread of a single man's life, though all the prayers of the nation are for it. The tallies of anticipation, as if money was actually discharged and paid, a custom newly brought in, and very unduly. The Bill, he hopes, may be for the safety of the King, and is sure it will be for the satisfaction of the people.
Mr Sawyer.] In H. VI.'s time, actions were brought against the Customs, for non-payment of their Farms. Tallies of anticipation are not so strange—Struck on the receiver, before the revenue comes in, in a fictitious payment, done time out of mind.
Mr Waller.] We speak now only of what we have given to the use of the Navy. It's said, "These anticipations are vile customs, ancient customs." It may be as ancient as the Common Law.—We made a fund at Oxford, and many put their money into the Exchequer upon it. This is the difference; that was passed in the preamble in the statute, and this Bill lays a penalty. Sir Robert Long was sollicited by some of the Ministers (not those now) to violate the Exchequer, as has been done since, but he would not. There is no nation in the world but has had money devoted to public uses. The Romans had so—Their ships were burnt by the Gauls, as ours were by the Dutch. In the castle St Angelo, is devoted money now—Knows not how the Pope makes bold with it sometimes. When the Oxford Act passed, you were not told of the King's wanting his dinner, for this Custom-money, as you are now. 'Tis strange, that the King should eat up his Navy. Moves to have the Bill committed,
Which was done accordingly.
Thursday, May 20.
Sir Thomas Lee.] Reports the reasons to be offered at the Conference on the Lords Answer, in the case of Mr Onslow.
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 exceptions of appeal before the Lords.
2. That the reason of that privilege is, that the Members of the House of Commons, may freely attend the public affairs in that House, without disturbance, or interruption; which doth extend as well to Appeals before the House of Peers, as to proceedings in other Courts.
3. That by the constant service 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.
4. If the Lords [shall] proceed to hear and determine any Appeals, where the party neither can, nor ought to attend, such proceedings would be contrary to the rules of Justice.
5. 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.
6. 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 an Act of Parliament.
Mr Wild.] Would have added to them, "That no Court has power to summon any part of the legislature." The Lords were a Court of Parliament before they were a Court of Judicature.
Mr Waller.] Thinks that would be a better argument at a free Conference, than to be now amongst our Reasons, in the paper for this Conference; and then valeat quantum valere potest.
Col. Birch.] Would have it by way of reserve at a free Conference.
Sir Thomas Lee.] The Committee was more employed to receive Reasons from Gentlemen that offered them, than to find Reasons.
Mr Vaughan.] Would rather show these Reasons, at this Conference, than reserve them for a free Conference, because it may be we shall never have one.
Sir Thomas Lee.] Offers directions for the managers of this Conference, not to intermeddle with the Lords jurisdiction of Appeals, nor to own a right in them to take Appeals, but barely this single question, to state Privilege, neither affirming nor allowing Appeals.
Mr Powle.] The Lords Message is so general, as, if they take Appeals, by this assertion they may draw all criminal causes before them whatsoever.—An Appeal may be made to the Lords, and they try over again. That of Chancery ought well to be considered. By this unlimited power of taking Appeals from thence, all estates may be judged there, dismissed in Chancery, for want of proof, or want of jurisdiction. He is not willing to have intricate quarrels with the Lords. In this Conference would have nothing said to corroborate the Lords Jurisdiction, but to let it go over sub silentio.
Sir Richard Temple.] There never was any Appeal from the Star-Chamber sentence, or the Ecclesiastical Courts, to the Lords. This vote is as if they would assume Appeals in every Cause, it goes so far. In the Commission of Sewers, there is no Appeal to the Lords, nor in the Bill of Conventicles.
Sir John Birkenhead.] Many Appeals are in the Records from the Star-Chamber, Ecclesiastical Courts, and the Cinque Ports, to the Lords House, from E. I. to E. IV. From Ecclesiastical Courts, and all Courts where the party grieved craves leave of the King, to appeal to the Lords; but Appeals from the Chancery are no higher than from H. VII.
Sir Nicholas Carew.] When you send up these Reasons, you deliver them with some authority. Would not now touch upon the right of Appeals in general, having no direction nor order for it. Moves to have some Members to prepare for a free Conference of this Debate.
[Ordered, That it be referred to the former Committee, to prepare and bring in a Clause to-morrow morning, on the Debates of the House.]
Friday, May 21.
The Bill of Popery (fn. 4) was read the second time.
Mr Waller.] To swear to Transubstantiation, when no man knows what it is!—Swearing is like a lump of gold, the prettiest thing in the world; beat it into leaf, and you may blow it away—He likes not a swearing man, nor a swearing nation—Those that swore, took away the King's Crown, and those that swore not at all, set it on again. Now you trust the people with oaths, whom will the people chuse again? It may be, such as care not for oaths, men of tender consciences, and so you may fill up the House with such as care not for oaths, and will keep none. For God's sake, impose no oaths.
Sir William Coventry.] The Clause, in the Bill, relating to the Queen's servants, may receive a temperament.— Those about her already, may continue still. The thing may be uneasy, and grievous to her else; but, for the future, would have no English Papists about her. He believes that most of them are already removed. Though the King of Spain would have (in the Treaty in Rushworth) both Spanish and English Priests about the In fanta, yet the King of England refused. He would have none English, but by his consent—To answer Mr Waller, if we agree in interpreting "multiplying of oaths," they agree as to the thing—He is not for multiplication of oaths.—'Tis to no purpose to bring in every new Clause that has new niceties—Would keep to that of Transubstantiation—They that take it, believe it not to be an oath.—Is of opinion, that nothing should fetter the Legislators, when they are here—No man would have Papists, Legislators—Would only have it reach this place, as it keeps those men out, and assures you those to be right that are here. It gives testimony of the Legislators, that the people may be satisfied with our trust. He is for the former oath rather than vary upon new circumstances.
Mr Garroway.] Agrees against multiplying of oaths, but not repeating oaths—He likes not dubious tests. It may possibly make the people think of what they never did before. He differs from Coventry, in the allowance of the Queen's servants that she had formerly, but he would direct the Committee, that the Bill should not give leave for more Portugal servants than are already, and not to name "Papists," which would give countenance,—but only "Portugal servants."
Sir Nicholas Carew.] There are daily dispensations for all oaths from Rome, so would still make new oaths, before these dispensations come over.
Mr Secretary Coventry.] Every man may interpret an oath how he will, but an oath, by Law, cannot be interpreted, but according to the intention of the Legislator. He that believes no Transubstantiation at all, may as well believe a Transubstantiation. They that believe bread and wine may make flesh and blood, may believe it to be turned into flesh and blood.
Mr Powle.] The Papist believes change of substance, where the accident remains. If it be, as Coventry says, the difference between the Papists and us will only be, they believe Transubstantiation, and we believe it not.
Sir Charles Wheeler.] Some good Protestants have lost some good places, for not declaring Transubstantiation, according to the late Act. 'Tis necessary that the Bishops should form this oath. Our Successors else, not knowing our meaning, and not here present, may very well stumble at this oath.
[The Bill was ordered to be committed.]
The Answer delivered by the Lords, at a Conference, May 20, [to the Reasons of this House, delivered at a former Conference. (fn. 5) ]
[Reported by Mr Powle.]
"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 Reason,—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 privilege 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 privileges 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 intrench upon their Lordships both privilege and undoubted right of judicature, in the consequence of it, exempting (fn. 6) all the Members of both Houses from the judicature of the highest Court in 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 apprchend, 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 so rightly informed, as to preserve a good correspondence between the two Houses, which their Lordships shall endeavour, or to know when Warrants from 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, concetning 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, when the House of Commons have received what we have delivered at this Conference, they 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 of it," was the first of that kind that we can find to have come from that House."
Mr Powle.] 'Tis the proper Question, "Whether these Answers of the Lords to your Reasons are satisfactory, or no," in order to a free Conference. 1. The Lords tell you, "the most natural way is by Question." What is expostulated ought to be by Conference, but not by way of Message. That may be an Answer to the Lords first Reason—That, for Answer, they tell us something, by way of protestation, of judging our privileges—The second Reason was a Question, Whether you had done according to the Order of the House, or no? The third was a reflection upon the House, as if we had done what we could not do, in extending our jurisdiction, by incroachment on the Lords, in sending that Warrant.
Mr Vaughan.] When we consider the Answer, let us consider the Message, "Whether we own the Warrant?" The Lords say, a Question is the most natural way. 'Tis so between party and party indeed, but not from a Court.
Mr Cheney.] The Messengers tell you, "The Lords Spiritual and Temporal, in Parliament assembled, ask you this Question," as from a Court which cannot be informed but by a Question—There must be some other way of proceeding in this matter, which must be by Bill.
Sir Robert Carr.] We ought not to take things as they are represented without doors. Moves that we may vote, "That the Lords Reasons are not satisfactory;" and then to draw up Reasons for it.
Sir Thomas Meres.] Here are two points; first, a Message, by way of Question, for which we have had a Conference; they giving you Answer, let you in for another Conference. They give you no Answer to Shirley and Fagg's case; they have let you into the Conference to answer that—They have had their advantage in this, so you may take your advantage in the next Conference, to tell your sentiments of it, as they have done theirs.
Serjeant Seys.] When the Lords [are] trusted with the King's conscience, as a Court of Equity, he knows not the end of it. (Appeals from the Cinque Ports)—"Failure of justice" is a good word—Desires that the 4 H. IV. may be read. If they make themselves masters of all causes, by pretence of "failure of justice," all causes may come into their hands. 4 Hen. IV. "Persons were summoned before the King and the Lords. If error, then to proceed as in the times of the King's progenitors." See in these times what they did, as now in matter of Equity. Now they bring it under judicature of conscience, which the King has not trusted them with.
Mr Sacheverell.] There is another Statute, 1 Hen. IV. Chap. 14. "All Appeals, in the realm, to be tried by the Laws of the King, and his progenitors; and out of the kingdom, by the Lord Marshal."
Mr Powle.] These Appeals mentioned by Sacheverell, in that Statute, were not out of Chancery, but for criminal matters only. 21 Rich. II. Appeals against the Appeals of the Duke of Ireland, the consequence whereof was the deposing of Richard II. They were in case of High Treason, and criminal matters.
Sir Thomas Lee.] What he speaks to is, the Lords Answer to your Reasons—The progress will tell you— The Lords have stated the thing, and made positive assertions. upon it—To the other part, the Lords have returned a dubious Answer; we may call it fallacious. They have sent but half their vote, and made an entry in their own books of right. After the Lords received your Answer, no Question arises upon the place where Sbirley was arrested. You send a Message "about Lord Mobun's taking the Warrant." The Lords answer, "He had done nothing but his duty." Then, the next day, you received a Message, to know "Whether the Warrant was of your making." They tell you, at the Conference, a kind of salvo. In giving you Answer to Reasons of their interrogating you, they will avoid that Question, which is the only Question before you. They, in this thing, have averred the whole matter—If you grant them free Conference, you must argue the whole matter—The Lords asserting their right, you must argue against their jurisdiction.
Sir Charles Harbord.] Would give the Lords such an Answer as may countermine their mine, and then is for a free Conference—First enter that in your books.
The Speaker.] You are first to resolve, "whether you are satisfied with the Lords Reasons." That's your proper Question.
Mr Waller.] Believes the Lords in the wrong, and you in the right, in all particulars—They say themselves, "they are the highest Judicature." We cannot keep up our own right of Judicature without maintaining theirs. Once the Judges voted "Ship-money to be legal," and the King was in possession of it. The Judges gave an ill judgment, and all Westminster-Hall was against you; but, by a law, we threw down all that; by this judicature wherein we have share. The judgment given in the King's Bench against Holles, Selden, &c. that Court over-ruled, and here all our right was lost. We went to the Lords, and they threw down this judgment, by being the highest Court; he would not, therefore, throw down this Court, that has been so useful to us.
Mr Sawyer.] It may be, the Lords, in answer to your Reasons, have dropped something they cannot defend. You have appointed a day for Debate; and therefore, by an opinion, would not anticipate that day. Possibly, they see their Conference not desensible.
Sir Thomas Lee.] Reasons for a free Conference are never given. The Lords have almost forgot our Message, in their Answer. Would have the Managers of the free Conference have some time to think for your better service.
The Speaker] The free Conference is desired to maintain the Reasons you have given already, and you are to direct Managers to consider of them.
Sir Thomas Meres.] Fears the Message of "subjectmatter unparliamentary," is too large and nice a word. The Lords resolve, that you shall not deliver them, and you take this course to do it.
Mr Swynfin.] This has let you into the maintaining your privileges. 'Tis proper to defer the Debate of this, to the next meeting, after three or four days recess, the first day after ten of the clock, and to report them then.
[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 upon the matter delivered at the last.]
It being moved, "that Sir Thomas Littleton should report the Address about recall of the French forces," the House was divided thereupon, and being even [94 to 94] the Speaker gave his casting voice for the Report, which some thought mysterious (fn. 7). He reported [accordingly] "We your Majesty's humble, and loyal subjects, the Commons, assembled in Parliament, do, with all duty and thankfulness, acknowledge your Majesty's gracious promise, in answer to part of our former Address, "to use all effectual means, both to forbid and hinder the going over of any of your Majesty's subjects to the service of the French King;" and we humbly crave leave farther to represent to your Majesty, that, since the peace made with the United Netherlands, notwithstanding the declaration of your royal pleasure, and all en deavours used to the contrary, great and considerable numbers of your subjects (as well heretofore, as since our late application) have, and daily do transport themselves, out of several parts of your Majesty's kingdom, and dominions, for the service of that King, as recruits to the troops and regiments remaining there, at the conclusion of the said peace, receiving encouragement so to do (as we have reason to apprehend) by the continuance of a standing body of your Majesty's subjects in that service; whereby your Majesty's honour and authority have been disregarded, great reputation given, and success obtained by that assistance, in the behalf of the said King; and, if longer permitted, may tend to the discountenance and discouragement of those many Protestants, and other Confederates, now engaged in their common defence, against him, and to the hazard of Flanders; which we conceive to be contrary to the [true and] undoubted interest of your Majesty, and these [your] kingdoms, and like to prove of fatal consequence. And, therefore, we do presume again to address ourselves to your Majesty, and humbly pray, that your Majesty would be pleased to recall your subjects that are in the service of the French King."
The House then adjourned for the Whitsun holy-days, to