Grey's Debates of the House of Commons: Volume 3. Originally published by T. Becket and P. A. De Hondt, London, 1769.
This free content was digitised by double rekeying. All rights reserved.
Wednesday, May 26.
The House was called over, and the defaulters [were allowed, or disallowed] according to custom.
Sir Thomas Clarges.] In Chancery, when people do neglect their trusts, other Trustees are chosen. This, of serving here, is so great a trust, that he would have letters sent to the several Counties and Boroughs to give them notice how they are represented. And would have the defaulters called again on Tuesday next.
The House was ordered to be called over again on Wednesday fortnight. And, in the interim, Ordered, That no Member depart from his attendance in the House, without leave.
Thursday, May 27:
Debate on the intended Conference.
Col. Birch.] Would not make the subject-matter of the Conference "on the Lords Judicature," but have it confined "to Privilege, in the case of Sir John Fagg" only.
Sir Thomas Lee.] Moves, that Sir Robert Carr may carry the Message for Conference—Messages of extraordinary nature are usually done by persons of remark. Sir Thomas Clifford did it here, when Treasurer of the Houshold; and the Judges are sent by the Lords frequently on such occasions. On ordinary Messages, the Masters in Chancery, or the Attorney General, we see come only.
[Ordered, That a Message be sent to the Lords, to remind the Lords of a Message sent to them by this House, concerning the Privileges of this House, contained in an Answer to a Message of theirs, in the case of Mr Onslow; the Lords having returned Answer, "That they will send Answer by Messengers of their own;" and that a Conference be again desired with the Lords, upon the privileges of this House, in the case of Mr Onslow.]
The Bill to prevent the growth of Popery, was read the second time.
Mr Waller.] A Papist is looked upon as a person that has a Sovereign somewhere else than in England—Every meeting, we have new laws against Protestant Dissenters, and, till now of late, none against Papists. He was always of the Church of England, bred and born in it, and hopes he shall die in it. There is a peace lost in disorder—Violent courses gave occasion to the late troubles—The occasion was both given and taken. Our severity formerly caused Amsterdam to make new streets for fugitive Dissenters; and, therefore, would have this Bill against Papists extend only to them.
But there was a clause in the Bill which provides against this.
Mr Secretary Coventry.] The intention of this Bill is against Popery; but, by that clause, you not only privilege Dissenters, but all profane persons, and debauched, that come not to church at all. He believes, no country can show, that a Conventicle is joining to his house, (a Secretary of State)—Would not have any thing in the Bill to give them encouragement.
Mr Sacheverell.] Informed the House occasionally, That the Grand Jury of his county (Derbyshire) presented Dissenters, upon the Statutes against Popish Recusants.
[The Bill, with the Proviso, was ordered to be committed.]
On the Clause of the Charter of Newark, making the capital Burgesses, Electors only (fn. 1).
Sir William Coventry.] The words of the Charter are, in re, facto, et nomine, as other Boroughs, &c. 'Tis at the peril of the discretion of the Counsel, if they will have all the Patent read, and of your patience, if you will hear it.
Mr Powle.] The King can grant a franchise, but not a service, whereby a Borough is bound to send Parliamentmen, as some Boroughs are by Charter; and that is a perfect Service. 18 Hen. VI. Plymouth is a granted Borough—Chester, Wales, Counties, and Boroughs. If the King could not, by Letters Patents, for Knights, without Act of Parliament, 'tis somewhat stranger he could not do it for Boroughs—Ever since Henry VIth's time, Boroughs were created—Maidstone commanded their Burgesses not to sit, till their Charter was examined. We may have Burgesses, by such Grants as this, shoaled upon us; and though we are now under a gracious Prince, yet we are to provide for the future. All franchises may be lost by non-use. In King James's time, the House then judged it a service which could not be lost. If the King grants a Charter, it must be to the whole commonalty, and not a restrained franchise. It must be to the whole body. A Fair, or a Market, granted to the Mayor and Aldermen, excluding the Burgesses, is void, the lawyers will tell you. If there be exclusive words to such a Grant as this of Newark, it will destroy the whole. As to prescription, no man can tell you how prescription comes; 'tis time out of mind. It may be by Act of Parliament, many Acts being lost.
Mr Sawyer.] Prescription may suppose an Act of Parliament. A custom in a Borough, excluding such trades, is not good by Grant, but good by Prescription. Rich. I. Prescription goes so high; and it may be, an Act of Parliament was before that time.
[The Debate was adjourned.]
At the Committee of Grievances.
Serjeant Shaftoe, Counsel for the Freemen of Newark.] A highway set out by Patent, though a nearer, and a better way, is void. A Market, or a Fair, granted without a Writ ad quod damnum brought, is a nusance by law. The King grants a capias upon the first process, is naught in law, and voids the patent.
Mr Walpole, on the same side.] We ought to be heard to this Charter, as a Grievance, being granted before a Writ ad quod damnum was issued out.
Mr Offley, Counsel for the Mayor and Aldermen of Newark.] He comes not here to demur to your jurisdiction; but the Parliament sits not here for ordinary remedy, but extraordinary. If the case be as is alleged, there is remedy in Westminster-Hall. The Crown is concerned in this Charter; though it is not his place, nor duty, to speak to that. The Petition is the matter of fact, and law, against the Charter. From fact the Counsel, on the other side, depart. He will prove the Patent, not only by the knowledge of the Freemen, but with their allowance. You are told of a Writ ad quod damnum. The power of incorporation is in the Crown; but for a way, because it turns a subject out of his property, to put him into another man's property, is not this case. This is to tell the King, he cannot incorporate a town ad quod damnum. 'Tis strange the Freemen should have no benefit, by being represented in Parliament. A Fair, in Somersetshire, granted without a Writ ad quod damnum. How this Grant can be without any colour of benefit to the Freemen, leaves it to your judgment. To tell you, because the King gives them leave to send Burgesses to represent them, to be a grievance, is a strange thing! Tenants, that held in demesne royal, made it grievance that they had none to represent them in Parliament.
Mr Walpole.] If for a Fair, or Market, being small things, a Writ ad quod damnum issues forth, much more to so great a matter as a Charter of this nature. The King cannot grant Letters Patents, or Offices, for surveying and measuring of bread and beer, to the prejudice of a Court-leet. A fee, granted in charge of another's office, is void, but where there is quid pro quo. Though, in small matters, waved. This town was as well represented by Knights before, as it can be by Burgesses now.
Serjeant Shaftoe.] Mr Offley would gently and softly plead to your jurisdiction, and bring the matter ad aliud examen. The grievance is the great matter; and so he has not departed from the Freemens Petition. The three towns, in the Charter, are excluded from Burgesses voices, and, is told, are excluded from the benefit of the tolls. The Question is not, whether a Writ ad quod damnum ought to be; but we might have had a scire facias; and the law-books are full of it.
Sir William Saroggs, Serjeant, for the Aldermen, &c.] This is a question in law. In all cases of law, will arise conveniency, or inconveniency. He hopes you will not abridge or prevent Westminster-Hall, in things remediable there. The King may erect a Court of Law, no lawyer can contradict it. He can grant returna brevium. He can appoint what officers he pleases, to make return of Writs by Grant, and, by consequence, may make Jury-men. But how comes—Westminster—It may be said by Prescription; but that supposes a Grant. This place is an original Grant from the King. The King has a prerogative to impose Taxes, when pro bono publico, and a quid pro quo, when the people have conveniency for recompence—Murage and pontage. That's the reason why the King has power to erect Courts of Law, but not Courts of Equity, because the law of the land may be thereby obstructed. What do they do by this Charter? Those of the neighbouring towns, by it, come to Newark, at the Court, or Law-day, are of a Jury, have a good dinner, and go home again the same day; and, in recompence for that, neither attend at the county assize or sessions. The obligation of the towns incorporate by this Charter to pay wages to the Parliamentmen, is but an imaginary grievance, being rarely taken, though due in point of law, of which he has many witnesses of them that hear him. As to the King's power, he can take away part of a county, and erect an incorporation; the King may appropriate part of a county to make it a peculiar, that people may have justice at home for their more trivial occasions. If the King does all this, the matter of the Patent is justifiable.
Mr Offley.] In the case of the Court of Marshalsea, created in the late King's time by Patent, hundreds of errors have been brought from thence to the King's Bench, and it has been allowed for a Court. No scire facias, nor Writ ad quod damnum, was ever brought. Launceston in Cornwall, the assizes for that county are held there by Patent, and never any inquisition was brought. If void in law, a scire facias goes against it, and voids that part of the Patent which is illegal. "Whereas, Newark, &c. before this Patent, went twenty miles to Sessions, it now goes but half a mile." This argument might destroy all the Boroughs of England.
Serjeant Scroggs.] To set this Patent aside for want of the Writ ad quod damnum may be a proper argument in Westminster-Hall; but submits to the judgment of the Committee, whether proper here.
Mr Walpole.] Concurrenti qui in jure requirunter. The gentlemen that own these towns incorporated, were never consulted in this Patent—Though 'tis said, we have a benefit by it, we say we have a displeasure.
Serjeant Pemberton.] A Patent may be good in law, though a prejudice to us. The King may erect a Court of Law, and a Borough to elect Burgesses—The complaint—"Not to have done what by law might have been done."—Mightily improper —We judge this done by surprize, and great hurt to us, and no advantage. The Mayor has got a Patent of power over us, and no imaginable benefit to the freemen. Scroggs says, "that the jurisdiction, granted by this Patent, is near home, and therefore for the benefit of the towns incorporated." We answer, that these petty jurisdictions are occasions of contention. Would any gentleman have a corporation have a jurisdiction over his manor, or farm, under specious shows of conveniency?—Who should bring this scire facias against the King's Patent?—Pray remedy for grievance.
Serjeant Shaftoe.] Makes no Question of the King's power of granting a Patent—But the Question is, whether the King may do it, without a writ ad quod damnum. Two of these towns, in the Patent, are Copyholders, and have courts of their own for tryals; they show you no advantage, but the dispute is not, whether the King may do it.
Mr Walpole.] The country gentlemen avoid these corporation jurisdictions as they would the plague.
Serjeant Scroggs.] How can you void a Patent that primâ facie has a specious intention of good? If grieved, or how far aggrieved, or what particular benefit—Would think it better, in his own case, to be exempted from assize and sessions, to have justice near home. Children are grown men since this Patent was endeavoured. If no better reasons were shown the King to void the Patent than have here been shown, believes he will not be persuaded to void the Patent.
Mr Offley.] A scire facias may lie at the suit of the subject. Why do they therefore make a noise with "surprize, and no benefit by it?"
Serjeant Scroggs.] Newark is the King's manor, and leaves the thing with you to judge of.
Evidence.] The scavenger's man came and took toll, and said "the Mayor commanded him to take it of those within the Corporation."
The Mayor said,] He delivered it back again, and would not take it.
Serjeant Scroggs.] Some benefits of this Patent extend to all, but all to some.
Serjeant Pemberton.]—Complains, not as a grievance to the Lords of the Manors, but as to the Copyholders, who, though the King is Lord of the Manor, yet their tenure is touched by this grant.
Earl of Ogle.] The King would give Newark a mark of favour; three other towns desired to be left out of the Patent, and they were left out. Surprize here is none at all, for when the freemen of Newark were debarred of voices, in the election of the two Burgesses, then they complained, and not before. He does not know that the other towns consented to this Patent, but he never heard them complain of it.
Mr Sacheverell.] It seems, Lord Ogle agrees that these towns consented not to the Patent. Apparent that they are under a new jurisdiction, and a new charge. In their own copyhold court, causes may be tried, and this jurisdiction taken away. Tolls they take of them, and their attendance on the corporation is chargeable, and therefore a grievance.
Sir John Birkenbead.] This is a posteriori complained, and is not a popular way for us to meddle with the King's prerogative.
Sir Thomas Meres.] Many grievances, though not brought before you, and not complained of, because of the excessive charge of attendance here, are no less grievances for that.
Sir Thomas Lee.] The erecting new Courts of Law, if much practised, would be of strange consequence. We have a world of petty courts, and all gentlemen within their jurisdiction, subjected to them; the greatest inconveniency that can be.
Sir John Birkenbead.] This is the second Patent the King has granted, these fourteen years, of this nature, and is very tender in these things, though importuned to do it.
Mr Vaughan.] 'Tis said they have no Members to represent them:—Will you have every Borough in England have Representatives? For civil jurisdiction—Divide all jurisdictions into counties, and 'twill change the very government—The wild argument, "It may be done pro bono publico," may be easily answered. Westminster-hall and we may dash the cognizance of the Patent—Most proper certainly for Westminster-hall.
Sir Thomas Littleton.] The novelty of it is a great discomposure to these places. Westminster-hall dislikes hundreds jurisdictions, and all Parliaments have done so.—'Tis, without controversy, a grievance.
Mr Vaughan.] This Patent, 'tis said, is granted for a favour, when these three towns bring it hither for a grievance.
Mr Powle.] There are grievances illegal, and grievances only inconvenient in the execution, and by ill procurement. He is not pleased with the manner of procurement of this Patent, nor the execution of it. Whether the King could grant a returna brevium, is a Question in Westminster-hall. He that is free, to submit himself to his next neighbour, may be abused. Here is a Question of the legality of it. It must erect so many new Sheriffs. Many a man will submit to a great inconvenience, rather than bring a scire facias. These towns were never heard, nor ever summoned; nay, many of the Corporation not consulted in the obtaining the Patent. By the words of the Patent, he takes the election (however) to be in the popularity. "New Courts, new Corporations, new Offices," Lord Coke said, "were always to the Prejudice of the People." All Patents are proper to be judged in Westminster-hall, and this may be judged here also a grievance.
Earl of Ogle.] Has seen several of Lord Digby's letters to the Corporation, (when Secretary) "that if they proposed any thing to the King, for their advantage, he would grant it." The letters are in being.
Sir Thomas Meres.] It was the King's intention to gratisy them for their loyalty—Many of the Corporation have no share of this loyalty, and the people that generally suffered and were loyal, have no benefit by the Patent. The Committee of Grievances have not sat these three years till now. W have meddles with as few grievances, and have had as few redreffed, as ever Parliament has had that sat fourteen years.
The Debate of the Validity of the Patent was adjourned.
Friday, May 28.
Sir Thomas Lee reports, from the Lords Conference, "That the Lords did not agree to a Conference on the Message of the 21st instant, because it was desired upon the Answer sent by the Lords, in the case of Mr Onslow, on the 17th instant, where the whole matter concerns the Judicature of the Lords, on which they can admit no Debate, nor grant any Conference: But this present Message being for a Conference concerning the Privileges of their House, the Lords have agreed to a Conference [as on this day,] at ten of the clock [in the forenoon] in the Painted Chamber; always provided, that nothing be offered at the Conference, that may any way concern their Lordships Judicature."
Mr Waller] Supposes that 'tis before us now to think of an Answer to this Message from the Lords—We must therefore state the thing—There is something in it new, and something not new—They said it once, in Lord Mordaunt's case, of his fitting in the House, at our Message, when accused. The Lord Treasurer Middlesex, and an Earl, were accused, in a former Parliament, in his time, and they sat upon little stools out of the Bar— 'Tis a disadvantage to us to manage an evidence, and the parties accused to sit as judges. They tell us, "There is no Answer to be given to what concerns their Judicature." —He knows not the event of that, but thinks, a recess, and the thing ended. This Answer is not particular. Say they, "We allow Conference on your Privileges, but expect you say nothing on our Judicature"—To tell us we shall say nothing on this, and that the Conference is upon another purpose, a thing perfectly new!
Mr Secretary Coventry.] Would have a Conference on this Answer. The Lords make a Jurisdiction over you, as well as a Judicature, by this Answer. This, in effect, is to say, your Member shall not carry your Message—Would ask another favour of the Lords—They tell us what we should not say; would desire to know what we should say. He supposes this cause of your Member's, in the Lords House, to be neither treason, felony, nor breach of the peace. Your Member is called away to attend,—a man whom the Lords cannot send for; they will judge his case, and condemn him unheard— Would have a Conference on this Answer.
Sir Thomas Lee.] Concurs with Coventry, that you cannot go to Conference with the Lords upon these terms. "From Appeals the Lords will not depart, though a Member of this House be concerned," they tell you. Upon this, you sent Sir Trevor Williams to ask a Conference, the 21st instant, which they could not grant, being to part of their judicature. Now, yesterday, you sent to the Lords, wherein you recited the former Message, and again send about the Privilege of Mr Onslow.— They make yours a different Message from what you send them, and they grant you a Conference, "provided you meddle not with their Judicature." Would, at the Conference, also have some ground of subject-matter, that neither party may be surprized—You have nothing to say but in the case of Mr Onslow—The Lords have denied your first Message, and do, in effect, deny it now. Would show the Lords, that this is not their right, their judicial capacity being subservient to their legislative; and it will else be a stop to all intercourse of Parliament— Though the Lords have not so much land left as formerly their ancestors and predecessors had, yet they have enough to preserve the government, and, he hopes, in this matter of judicature, they will change their minds.
Mr Vaughan] Your Privileges, and their Judicature, are so involved, that the one cannot be conferred upon without the other. We have had great calamities, war, fire, and plague; but nothing has so fatal an aspect as this difference. Where God lays his hand, by prayer it may be removed; but when we lay our hands upon ourselves, he fears the judgment—The deed inrolled against us. When the Lords deny you this, it looks as if they would take all power to themselves. In inferior Courts, such proceedings are not dangerous, being controulable by the superior; but when supremacy and impunity go together, there is no remedy—Suppose an Act of Parliament is appealed against—You have a common plea before the Lords—An action of debt, and you interpose, and they say, they will go on; in what condition then are we? He has respect for the Lords, who, though they are not bound as other Courts are, yet they are bound. They can no more proceed in this, than in making an Act of Parliament alone, without us. Though they have a Jurisdiction, yet hopes, they have it not at large. 'Tis destructive to the Crown—He speaks not to make the rent wider; but, if this goes on, the Lords may put the Crown on whose head they please—If Conference be denied us, we cannot arraign them for it, but hopes the nation will.
Mr Sawyer.] You must show, that there is "no failure of justice," as the Lords allege, and that remedy may be had elsewhere—We meddle not with the points they have jurisdiction in, as in Writs of Error, time out of mind, but judices sub lege. If they take upon them matters out of their cognizance, they are controulable by the legislative authority. They are, like other judges, sub lege, and he would have a Conference on the Lords Answer to your last Message.
Mr Waller.] How unequally do the Lords deal with us?—We hold as fast for money-matters to begin here, as they to Judicature. In the Little Parliament, before the Long Parliament (which was not very quick in giving money) the Lords were quicker than we; and, at a Conference, they urged us to give money. We then did not run away from the Conference—Pars non major toto. He hopes that the Lords are not greater than the King, Lords, and Commons—We then did not by them, in point of Money, as they do with us now in point of Judicature. Now he sees not the terrible fear of the consequence of this difference, but would, by Conference, show the unreasonableness of the Lords pretensions.
Sir Robert Carr.] Lately, in the Bill of Impositions, the Lords lowered the sum we sent up; you denied them not Conference thereupon, though you had reason on your side; he hopes that may have some effect now.
Sir Charles Wheeler.] Would enter something on your books, before you desire a Conference—Reason, in nature of equity, when lex et consuctudo, is a rule. If the Lords are bound up, and the King the only Judge in equitable causes, he judges it much to do to keep them in bounds—Though, possibly, the Lords may have equitable Judicature, yet they have it not over Members of this House. Suppose, in a Land-tax, and we unequally charge the Lords, we shall never deny them Conference upon it—Therefore moves to enter our Reasons, of the inequality of the Lords Answer, before we proceed to Conference.
Sir Thomas Littleton.] We are going to do the most irregular and inexcusable thing that can be. We have desired a Conference with the Lords, and the time is come for it, and we tell not the Lords why we do it not.
Mr Sachevercll.] Sure you will judge this Message of the Lords "a denial of a Conference," though in as soft expressions as you please, "and unsatisfactory," before you go to another Conference.
Sir Thomas Lee.] Before you can send this Message, you must have Reasons prepared; would not go unprovided. That being the case, unless there be some resolutions of the House, knows no ground there is to draw Reasons. The Lords have not taken your former Reasons as you sent them.
Mr Powle.] Would reserve the utmost judgment to yourselves. Would pass a vote, "That the Lords Message is unsatisfactory, and therefore desire a Conference."
Mr Sawyer.] Would vote, "That this is not granting a Conference from the Lords, according to your Message."
Sir Thomas Meres.] No Answer was ever known, but upon the grounds the Question was asked. We shall not meddle with their Judicature, but when it comes in the way of our Privileges. If the Lords should turn their backs, and go away, let them see us laugh at them for it —Let us go, and say discreetly what we have to say, and let it have its issue.
Sir Robert Howard.] In the Conference about Skinner and Barnardiston, the whole business was about the Lords Judicature. He hopes the Lords mean not Universal Judicature. Would go to a Conference with a saving to their undoubted Judicature.
Sir Thomas Meres.] Let the Lords call it Judicature, or what they please, let us go barely upon our Privileges, and upon it continually proceed.
Col. Birch.] You must go to the bottom of this matter, though with as soft and easy steps as you can. You have not said, you will debate the Lords jurisdiction, at Conference, but Privilege; and the Lords answer, "You must not meddle with their Judicature." The Lords have all the staff in their hands, and he would get part of it into ours, in hopes of the rest. You are not now at a free Conference, but at a Conference; you read your Reasons, and should the Lords turn their backs, it would be strange. He takes your Reasons to be substantial. The softest and easiest steps are the most probable to attain your end; and, by this way, you may bring in what you will.
Mr Swynfin.] He takes the matter to be this: The Lords power, in matters of Appeal, against any Member of this House. You must understand the power from the first time they used it. When they reserve a power over your Members, no other construction can be made, nor can we collect any thing else out of it—The Lords deny you any Conference in the case of Mr Onslow, being about their judicial power, not to be meddled with. —Conference with limitation, he knows not how to reconcile these. They answer nothing to Mr Onslow; they limit it besides, that it shall not touch that case; they avoid an Answer as to Privileges—But, in the case of Mr Onslow, 'tis, in effect, a denial. In the way demanded, 'tis no Answer, being in the case of Mr Onslow—Would show the absurdity of limiting this Conference. Will the Lords make their two Reporters judges of what you say as to their Judicature? Your Reporters have nothing to do but in what you tender the Lords. The Reporters else will make themselves have jurisdiction. He rather inclines to say to the effect already propounded; otherwise you admit a precedent, that, whenever the Lords send for a Conference with limitation, you must grant it.
Serjeant Maynard.] The Lords, in effect, tell you, they will at Conference talk about your Privileges, if so be you will not talk of their Jurisdiction; he sees not how you can retain this for an Answer, thus limited and circumscribed.
Mr Swynfin.] The Lords leave the Answer to the Message about Mr Onslow out, and single out a Question you ask not, and then limit the Conference.
Sir Thomas Lee.] The thing must be taken in its perfect coherence. The end of Conferences is, if they have not their effect on replication, a free Conference follows. The Lords will tell you, this Conference is not on their Jurisdiction—If we be once reduced to that condition, only to speak what the Lords shall limit us at a Conference, we are in an ill condition. If you accept Conference, on this condition, you yield the whole matter of the former Conferences.
Mr Sawyer.] If one grants, and another accepts, it must be taken according to the grant. By the constant rule of law, we must take money for the use it is accepted, in payment of such a debt as is intended by the granter.
Sir Henry Ford.] Would accept this for Answer— Hopes for better things than a tragical consequence, and that the Lords will be better advised, and come to Conference.
Mr Powle.] You may order your Members to make a declaration at the Conference, that they have liberty to debate their Judicature. A Conference was not desired in the Little Parliament, as Waller told you, but by way of declaration; otherwise Conferences will multiply ad infinitum.
Sir Thomas Meres.] If you ask Conference, they must do it upon the terms you ask it, or deny it. Like the laws of Ireland, they cannot alter, or enter a Proviso, but must take, or refuse, the whole. 'Tis the same case with us; if their Proviso be able to oblige us, it renders the Conference nothing.
Sir Thomas Lee.] The Lords have said, as on another occasion, when a free Conference was demanded, "they are not prepared to argue."
Sir Thomas Clarges.] Supposes that this vote be delivered at a Conference, and then the Reasons may be of great service to the House, to prove they have admitted Conferences, as to their Judicature——He went not on, being taken down for speaking twice, without leave, as if at a Grand Committee.
Col. Birch.] His mark that he sets up, in this matter, is a good correspondence between the two Houses. The Lords second Answer is a kind of salvo to the first— This is one step to a good agreement. This last Answer, with limitation—You may accept of Conference, with a Declaration, and so no precedent upon your books. —A Declaration "that Conferences are not to be granted with limitation."
Resolved, That, by the Lords Answer, there is no grant of a Conference upon the matter, as it was desired by this House, in their last Message, in the case of Mr Onslow.
Debate on the Lords Judicature of Appeals.
Sir Thomas Clarges.] Can the Lords derive this Judicature of Appeals higher than King James's time? It takes away tryal of all Freeholds, and all things else— Magna Charta, Charta de Foresta. In tryal by juries, we are all tried by our Peers; before the Lords, by this authority, we are not. The Lords say, they have precedents as high as Hen. VII. but whether any thing of a man's freehold was then decreed, is the Question; else it squares not with this case. 1 Hen. IV. chap. 23. "In pleas, as well real as personal, in the King's Courts"— Parties were then compelled to other Courts, and judgment was good, till reversed by Writs of Error, or Attaint—The Lords authority, in Writs of Error, no man disputes, but the Lords cannot take the merits of the cause before them, but as the matter is recorded. By these proceedings by Appeals, not only the subject is in danger, but the King is dishonoured by it.—There is no process in Westminster-Hall, but by the King's Writ.—The King's dignity preserved, but here the thing is done in paper. Precedents cannot be in force to repeal Acts of Parliament. This Act before-mentioned was made by intercourse of both Houses, and because the Lords had exercised this jurisdiction, 'tis taken away. 15 E. III. That Act is repealed, and all that Parliament did, being against the honour and dignity of the Crown. It seems to him very plain, that, in this paper-part of Chancery, of Appeal to the House of Peers, they have no jurisdiction.
Mr Sawyer.] Ad superiorem judicem is an Appeal— The Lords have not such a power. A Court of Equity cannot be by grant; it must be by prescription, or statute law. A Court of Record is coram domino rege in parliamento, and as the Lords are a supreme Court, for Writs of Error is not the Question. But as to their usage, in matters of Equity, 1 E. III. No. XI. Elizab. de Burgo petitioned against Hugh Spencer, to be relieved from an indenture obligatory, in duress granted. 'Twas judged that the bond should be delivered up. If, at that time, the Lords had any such Judicature, it might have been done without the Commons. This was a judgment of the three states.—5 E. IV. More and Cobb's case. Judgment was given in the Absence of More, who was beyond the Sea. More exhibits a Bill of fraud against Cobb, for the judgment obtained against him in his absence: The Chancery then had narrow bounds; the Chancery advised More to exhibit a Bill in Parliament for relief, and he had it. The Lords exercised no Appeal then. 1 H. VII. No. 42. The case of Weston, Prior of St. John of Jerusalem—He exhibits a Bill for throwing down two of the houses, in the rebellion of Jack Straw; the petition was granted by the Lords and Commons; the King discharged him of his rent. In that plain matter of equity, the Lords did not meddle. The same, No. 63, another private relief, and many by private bill. 37 H. VI. An action of debt upon bond. Resolved, No Writ of Error could be there to reverse a judgment; no settled Court could do it, but in an extraordinary manner from the King. There was a reference in Queen Elizabeth's time to all he Judges. She referred the decree to the twelve Judges, and they reversed the decree. In 18 K. James, Sir George Marshall, and Sir William Pope's case. Pope would give Marshall 1000l. to procure him to be made Knight of the Bath. It being done at the instance of Marshal, who could not get his money. The great matter was, it was purely matter of law, being a contract. Mr Secretary was sent from the House of Commons to take care of it. The Bill and Answer were taken off the file, and the Master of the Rolls was ordered to do it. Upon search, this is the first precedent to be found of the Lords judging Appeals. Some have been brought since, before the Lords, as a grievance, but few, as a jurisdiction. The Lords cannot take these Appeals by prescription. This Court, as all other Courts, must be sub legs. 'Tis true that the Courts of London, Chester, and Wales, have not such gradations in equity as Westminster-hall has. If the Lords House be a Court of Equity, they must do it, and accept all causes. Every defendant and plaintiff will be here, and so all parliamentary matters cease. the Lords tell you, "If prorogation happen, they will take the Cause where they left it." If all Causes be brought to them, and all proceedings cease in other Courts, till they meet again, and impossible the, in twenty years time, Causes should be determined there in this manner, 'tis deregatory to the King's prerogative. Chancery itself has almost overthrown all other Courts, and if the Chancellor err, he is to be corrected by the King. H. VIII. appointed a Commission of Delegates,—yet the King has given a special trust to the Chancellor—Shall the Lords be only trusted? This of Delegates is a matter of trust in the King. There are few ancient precedents, but of Appeals to the King in Parliament; and upon Appeals to the Lords, and not to the King, he is shut out of doors, and the Lords only Judges. If the Lords go one step higher, there will be nothing left the Commons to do, but to give money. This strikes at the whole legislative power. At this rate shortly the Lords may relieve against fines and recoveries, as fraudulent matters. He knows not one case, but, by this course, may come before them. The Chancellor dismisses an extravagant Bill, for want of jurisdiction, and, in the case of Sir John Fagg, the Chancery can go no farther, but the Lords will go upon an original Equity. The wisdom of all ages has been, not to put law and equity in one Court. (All former pleadings in Latin till later times.) If law and equity be both in one Court, would know, whether 'tis not a legislative power. This being the matter, they having no jurisdiction, he hopes you will declare it so.
Mr Powle.] Heretofore the interest of Writs of Error, in this House, was ancient. Writs of Error were brought to the Lords, that the King might proceed thereupon "by advice of the Lords Spiritual [and Temporal,] and Commons." 31 E. III. A Writ of Error out of the Exchequer, never any out of the Star-Chamber. The predecessors of the Lords were of another mind, than now, it seems, they are in these cases. 1 H. IV. "Power of taking away of Appeals in criminal matters." In R. II. "taken away at the request of the Commons." A power they will not suffer us to confer upon now. The Lords tell you, "They are not only the highest Judicature, but they have the supreme justice, not administrable in any other Court whatsoever." He knows not their meaning, unless they pretend to have power over our lives and fortunes, when they please. This will make a single Court unaccountable to the legislative power. A case upon a pretended false verdict may, by this power, be brought to the Lords.
Serjeant Maynard.] At this time, 'tis inconvenient for you to press the Question of the Lords jurisdiction. People abroad will examine, whether it be convenient, or not, and whether better to be judged by the whole Peerage of the nation, than by one Chancellor. 'Twill be a hard thing for us to say, the Lords have no jurisdiction. You will find them armed with reasons and precedents for some long time; but to go from our privileges to their general power — Let us first take out the mote from our own eye. He speaks his heart—What is just and reasonable may be seasonably done hereafter.
Sir Thomas Clarges.] Remembers his notes taken after Serjeant Maynard, in Skinner's case (fn. 2), "That the Lords had no jurisdiction in paper-petitions," as this of Appeals is.
Mr Waller.] You are about voting, whether the Lords have any power, to take Appeals out of Chancery. He is against determining this presently—In other Parliaments this has been considered—The Chancery was anciently only for matters of fraud. The Bishops, till the Reformation, sat in Chancery. In all the Courts of Westminster, there are three Judges, and one Chief Justice. It does not seem prudent, at this time, to meddle with their power in general; you have their honour, their estates, and the Judges present with them; sure they are better Judges than one man.
Mr Vaughan.] The Chancellor's judgment is not final; that is, a Bill may be exhibited in Parliament, as you have been told.
Mr Secretary Coventry.]—Knows little of the law, but knows so much of himself as not to put himself in balance with lawyers.
Sir William Coventry.] Sees no necessity, nor prudence, of enforcing any thing in the Lords jurisdiction now. Whatever you do, will be upon your own books. 'Tis not prudent to come to a resolution with a harsh Question, and they hearing it, it may be an obstruction to the Conference you desire. If any point of harshness must be, would rather have it come from the Lords than you. Serjeant Maynard doubted, and where a doubt is, would be loth to see the House of Commons put to a retreat in the matter. One said, "'Twas better to have the Power in the Chancellor." If such an Appeal from the twelve Judges to the Chancellor—If the Lords will be the highest Court of Judicature, before the matter has been before the twelve Judges, they take it per saltum. 'Tis for the benefit of the subject to have as many checks in proceedings at Law as may be. If you come pointblank upon the Lords, about this Jurisdiction, you shut up all legislative course whatsoever, by the Bill for Redress. 'Tis said, you have remedy by a legislative course, which, if the Lords refuse, the whole course of Parliament stops. When you shall digest the matter, in the nature of a Bill, 'twill solve all, delivered at a Conference, and he would adjourn the Debate now.
Mr Vaughan.] 42 Queen Eliz. A Decree was made by the Chancellor, and the Queen was petitioned against it for redress. If you defer this Question, all your Reasons will be lost, now fresh in memory.
Sir William Coventry.] Would be loth to go to a precipitate resolution, and therefore would have learned gentlemen give you in writing what they have said, and adjourn the Debate.
Sir Edward Dering.] The thing is of great consequence, without doubt—Speaks only to the seasonableness to come off from that rock, we are running upon. He has heard, that since the 21 K. James, 51 years, the Lords have been in possession of this judicature, and with no ill effect to the people that he has heard of, and what hurt can two days more do, for consideration of a thing of this importance? He hears that the Appeal against Sir John Fagg, and Mr Onslow, is let fall, and not proceeded in. Would adjourn the Debate to Monday.
Sir Thomas Lee.] He fears it will appear upon your books, that the Lords have made an universal claim, and you have nothing upon your books yet, of your opinion. Just before Skinner's case, another complaint was before you of original proceedings, in a criminal case, of Mr Fitton, upon the complaint of Lord Gerrard, for a petition he prepared for you (fn. 3). He was sentenced in the Lords House, and imprisoned, and knows not whether yet he is out of prison, unless on the Act of Pardon. The great business of Skinner engaged you so much then, and took up your time, that that seemed to drop from you. Shall this go away unremarked also? Your single case of Privilege will only appear by such a Vote as you have made already. But, in the next place, would take that of Appeals, in general, out of Chancery into consideration.
Sir Thomas Littleton.] If nothing be done concerning this great jurisdiction of the Lords, we shall leave the subjects in a worse condition than we found them. He knows not whether Appeal to the twelve Judges be a precarious thing, or of right. If no private person be a match for the Chancellor, and probably the Chancellor may have a great influence upon the House of Lords, there may be another way, by petition to the King for Delegates by his appointment.
Colonel Birch.] The common proverb is, "Two words to a bargain;" the arguments he has heard for this seem to be against it. It is said, "If you pass this Question, you throw this authority upon the Chancellor" —We are much sooner pulling down than setting up— He will always support the opinion of this House, though against his own. The consequence of the Lords denying us Conference will be manifest to every one, by our Reasons. 'Tis doubted how we shall make this Vote good —Should that happen to be true, 'twill be too brisk a Vote to pass now—At a Conference you may give Reasons, and have much more advantage, than by passing such a Vote now.
Mr Secretary Coventry.] Would have the House in a Grand Committee, on Wednesday, for more liberty to speak. Money, Religion, and the highest of your Liberties, are usually in that method. This is a thing of the highest nature.
Sir Lionel Jenkins.] He is for an adjournment—Is not able, from all this Debate, to satisfy his judgment in this great affair. If the Lords have no Right to take Appeals from the Chancery, all things that have been judged before them, since 18th of K. James, are unravelled, and the people may petition the King, that the matter may again go before the twelve Judges.
Mr Vaughan.] Had the thing been de novo, something more might have been said; but this day was set apart for this Debate. If the parties have put in no Plea to the Jurisdiction of that Court, (the Cause depending) the judgment is good, and cannot be "unravelled," as Jenkins says.
Serjeant Jones.] From the 18th of K. James to the 3d of K. Charles, there was but one Parliament, and none again to the 16th, and whatever precedents were at that time, he lays no great weight upon them. 'Tis certain, that the Lords have the last resort, but they have it not in every Case. By Act of Parliament, Appeals were to Delegates. Appeals to the Chancery are both new, and very improper. In Writs of Error, they may give Judgment, and they are improperly called " Appeals." The Marshal's Court, the Ecclesiastical Court, the Admiralty, and Chivalry, had Appeals. 24 H. VIII. Appeals from an Archbishop of Canterbury to the Convocation. But in the last of H. VIII, before the Judges, Delegates, and from them to new Delegates, by Commission from the King, ad revidendum. A thing of so high a nature as this would require some time for consideration, and because the Lords have made many Decrees, we should not hazard vacating them. If coram non judice, no time of doing them can make them good. Possibly the Lords have been too hasty in their Votes; let not us be so too. 'Tis said, "we have had time already to consider;" but this is the first Argument, and only to be judged in a Case of great clearness, and the Judges do rarely determine at first. We shall be better able for resolution, by some intermission, and therefore would adjourn the Debate to Wednesday.
Mr Powle.] The Argument "of the Judges" does not hold here. Here are many Judges, and the Argument may be easily lost.
Serjeant Maynard.] He has not mis-spent his time, about this Question, since it was first started. He has read much, and has much to say on both sides, but there is no reason that his dissatisfaction should stay the House's opinion. 'Tis a mistake that the parties consent does make the jurisdiction of a Court good—But would farther consider the Question, "That there lies no Appeal to the Lords in Parliament, from any Court of Equity."
Sir Thomas Littleton.] As to that of Chancery, res ipsa loquitur.
[A Conference with the Lords was desired. Adjonrned till Monday.]