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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Monday, May 31.
Conference from the Lords [reported by Sir John Trevor.]
"The Lords have appointed this Conference, out of that constant desire and resolution they have to continue a fair correspondence between the two Houses, which is [of] the essence of Parliamentary Proceedings. [For this End] their Lordships have commanded us to tell you, that they cannot but take notice of the House of Commons failing to be on Friday last at a Conference, desired by themselves, and appointed by the Lords, at ten of the clock in the Painted Chamber; that they conceive it tends to an interruption of [all] Parliamentary Proceedings, and to evade the Right of the Lords to appoint time and place for a Conference."
Ordered, That no man prosecute an Appeal at the Lords Bar, wherein a Member of this House is concerned.
Sir Francis Drake.] Gives an account of Mr Porter, and Serjeant Pemberton, that appeared at the Lords Bar in an Appeal, wherein Mr Dalmahoy was concerned.
Sir Robert Carr.] The Lawyers ought to have notice of your Vote, and the best way is to summon them here to know it.
Sir Edward Baynton.] Reports may be false, as well as true; therefore would enquire farther. Formerly your Orders were printed and published for all mens notice.
Mr Sacheverell.] Mr Dalmahoy is Defendant. You may send for the Counsel, and know the matter.
Sir William Coventry.] He had occasion, on Friday, to speak with a Lord, and was willing to know how things went in the Lords House. Some others of the House of Commons had their curiosity about them, as he had his. The Lords were very cautious in what they told them—Possibly the Lords may enquire who were Executors, or Legatees—And your Members not parties in the Case. May it not be said, in a Court at Westminster-Hall, some one of your Members were present at such a thing? But what calls not for your Members attendance, is no breach of Privilege. See the thing charged personally on that man, before you give any man the trouble of a Summons hither. (Sir Francis Drake excepting at what he said, as if he had informed the House wrong)—He said—He did not say it, to put your Member, and an inferior Officer, in the balance.
The Speaker.] Your Orders are published, either in Westminster Hall, or the Inns of Court, but, as this Order stands, 'tis not so public as to be taken notice of.
Mr Palmes.] He had the curiosity, as other gentlemen had, to go to the Lords House. He found no Counsel there for Mr Dalmahoy, but a Lord asked, "If Mr Dalmahoy was concerned?" One of the Counsel said, "Yes." "Then," says a Lord, "let us go on."
Mr Dalmahoy.] The Earl of Darlington made a will, and gave his daughter a legacy, who is his wife, with other legacies. A decree in Chancery was made in the Case —He had no Counsel at the Lords Bar. They were only for Lady Bowyer and Lady Salisbury.
Mr Hampden.] Supposes the Case is, "Counsel appearing at the Lords Bar, in a Cause wherein your Member is concerned." Consider whether all the Counsel ought not, at their peril, to know that he is your Member. Every officer is bound to take notice of it. In Westminster-Hall they are so cautious, in any cause that concerns your Member, that, by consent, his hand is set to a Rule of Court. This is worth your taking notice of.
Sir Thomas Lee.] The common report is, " that the Lords refused to proceed, till the Counsel declared they were against Dalmahoy." 'Tis easy for you to enquire into it. Now, for any gentleman to tell you, "that the Lawyers do not break your Privileges, in appearing against an express Order of the House," is strange. If you will let the Lords go away with this, and quit this part, you must expect the next will be Mr Onslow, and then Sir John Fagg, and as many more, it may be. Moves, therefore, that the Counsel may be sent for to answer it.
Mr Powle.] If you consider what you have done, you may the better see what you are to do. Your first vote was not a new Privilege; you assert your ancient Privilege, and if the Lawyers do not understand it, let them break it, at their perils; and you are to proceed in this as in all other matters, where your Privilege is broken. The Counsel said, they had no instruction from Mr Dalmahoy in the cause; yet, on the other side, the Counsel declare they are against him. He shall not be of the severest, but if the Counsel are not sent for in Custody, it will seem want of courage.
Sir Thomas Meres.] He cannot well understand the matter of fact. Sometimes Dalmahoy is no party, and the Lords question, whether any Counsel be against Dalmahoy. He cannot distinguish it; if no-body had named him, then he is no party. Some of the Lords are angry, and the Counsel reprehended, "Are not you against Dalmaboy?" The consequence is, Dalmahoy is a party, and known by the Lords, and the Counsel too, that he had an interest in the matter. Where your Member has an interest; they will leave his cause out, and judge the rest involved with him, to his ruin. If the Counsel know it not now, pray learn them more wit for the future. The town and the nation know it; every man rejoices that you stand up for the peoples right. If any man will prove Dalmahoy not concerned, he says something.
Sir Henry Ford.] Thinks you will not want courage to send for the Counsel in custody; but he hears it from Dalmahoy, "that he retained no Counsel." If he was no party, no man could appear against him. Persons say only, they have heard it; and for a Serjeant of great quality to kneel at your Bar—
Mr Wild.] If the thing be upon record, and on the Lords books, then Dalmahoy is concerned.
Mr Streete.] The Lords do not so much as name him; and if it appears that Dalmahoy be no party, the Counsel is not to blame—Would refer it to a Committee.
Mr Secretary Coventry.] No law enjoins a man to give evidence against himself. Therefore Dalmahoy cannot be urged to declare—(who sat silent.)
Sir Thomas Littleton.] The Question was, Whether formerly, before your Order, Dalmahoy did not retain Counsel? 'Tis a Question against the Counsel, but not against your Member.
Sir Edmund Jennings.] Dalmahoy has put in his Answer, he tells you, but not since your Order.
Sir Thomas Lee.] By Dalmahoy's silence, in not informing you, it may be gathered, that Counsel has been retained.
Ordered, That Sir John Churchill, Serjeant Pemberton, Serjeant Peck, and Mr Porter, be summoned to attend the House to morrow morning, at ten of the clock.
Ordered, That the Lords Journal be searched for what business has been depending, relating to Mr Onslow and Mr Dalmahoy.
Sir Thomas Lee.] Moved to have the Vote concerning the Lawyers posted up at the Inns of Court, and Chancery, as it has been usually done.
The Letter was read to the Boroughs and Counties, to give notice of their absent Members, and ordered to be sent.
Ordered, That the farther Debate of the Address about the removal of the Duke of Lauderdale be at ten of the clock.
Sir Kingsmill Lucy.] We have pressed the King so often for the removal of the Duke of Lauderdale, and, for Answer, we have only had a civil denial. If there be a reason to cease this prosecution, would hear it. If he has expiated his former ill actions, by any thing lately done, it would much prevail with him, by such a demeanour, to forget what is past. Has no reason to think his principles are changed, when he calls those that were against the Declaration, "Deserters of the King." Since the first Address for his removal, he has had increase of honour (fn. 1), and a pension, as if in defiance of us—He believes him dangerous, and obnoxious to the Government, and as such a one would have him removed.
The Address formerly made was read, with the King's Answer to it.
Sir Joseph Tredenham.] Should the Duke of Lauderdale be banished, on this Address, the late Act of Pardon would be violated, or at least suspended. Should it be violated, the King may justly say, he has gone by measures we have given him—Hopes we shall acquiesce in the King's Answer, as our progenitors have done before us.
Mr Secretary Coventry.] What he looks on now, is the King's Answer. As for what relates to the Act of the Parliament of Scotland, about the Militia, we cannot go farther on that, without giving offence to that Parliament; as if we should say, they had not liberty of vote, nor how to make laws, without the influence of this Lord. As to the Pardon, as great a consequence the violating of it is, as any thing can be, relating to the Duke's removal. Is not discharging him the King's presence, and removing him from all offices, a punishment? When the King has taken and weighed these Reasons that you have given, he wonders what will be your Answer to the King's Answer. Will you say, the Act of Scotland is no Act, or the Pardon no Pardon? He knows not else what you can answer.
Lord Cavendish.] Sees not how this can exclude us from a farther Address. In effect, 'tis a Question, how we shall ever have interest to remove an officer.
Sir Thomas Lee.] Thinks we are more obliged, by the King's Answer, to make another Address, than we were by the first. That the Commons should shake the Act of Pardon, we are most studiously to clear. The comparison must lie betwixt an oblivion, and pardon of crimes, for safety, named especially. Will any man tell you, that the King, having power to pardon, by Grace, has not power to remove a servant, or his very Privy Council? This is a matter of plain advice; you thinking so of this Duke, the King may do what he pleases, But that the Act of Grace should restrain the King from removing a servant—he wonders at it.
Sir Adam Browne.] The Act of Oblivion is for words, and, as the King has forgot them, he hopes you do so too.
Mr Secretary Williamson.] When that matter of Scotland comes before you, he sees not well what you can do in it. Gentlemen do not think that this will shut out the Pardon. He takes it, that a man is not only free from the crime, but from the very reproaches of it. Should any thing of this nature be enquired into, the Act of Oblivion, as well as the last Act of Pardon, may be shaken, it having once passed as well as the other. In no degree it suits with the justice of this House, and would go no farther in it.
Mr Vaughan.] Nil dictum quod non sit dictum prius. The same arguments on another occasion were made, and fully answered; no Act can be made "that we shall not remember crimes done," but "that there shall be no consequence, nor effects of it." "Assent and consent," in the Act of Uniformity, and the Act for purging Corporations, violates the Act of Indemnity as much as any thing—Should a bed-chamber-man conspire against the King's life, he would scarce keep him, when so informed; nor a deputylieutenant, that should rob on the highway, would he continue in his place; though, through his grace, he may pardon him.
Sir Charles Wheeler.] 'Tis said, "Cannot the King remove his servant?" When you incapacitate Lauderdale from bearing offices, you take away his birthright to serve his Prince and country. It seems partial—Would have the House go on with such an equal way of justice as should seem impartial. The King has, in some cases, yielded to our Addresses, and in some not. In an Act of Parliament the King is obliged to no more than a reasonable Answer, and would proceed no farther in this Address.
Mr Stockdale.] We run upon mistakes; and, he apprehends, the King does the same. The Duke of Lauderdale's charge is, "subverting the Government, and giving dangerous counsels." That he is an ill man, his words make out. If a charge were before the Lords, by Impeachment, this might be a good Answer. There, 'tis likely, the words and actions in Scotland, before the Indemnity, might acquit him. He now appears to be the adviser of the Declaration and the French league. These we show to be the reasons why he is an ill man.
Sir John Ernly.] If the Duke must answer against a public Act, and we have the benefit of a public Act, 'tis strange. Therefore he moves to rest satisfied with the King's Answer, and move no farther in it.
Mr Powle.] By what he can observe of the King's Answer, he finds neither denial, nor grant, of our Address. Not one thing in the Answer to the Duke of Lauderdale's "procuring the Scotch Militia Act." Therefore that is admitted to be true, with that "of the French league." The article against Mortimer. 4 Ed. III. 21 Rich. II. Sir Jonathan Bushey's case. "Those under the same crown to raise armies in one kingdom to invade the other." A great encouragement for us to have him removed. There is a difference between not having employment under the King, a matter voluntary in the King, and punishing him. The King, in his Answer, seems to admit these words of Edicts, spoken in the Council, and in the King's presence; an Act of as great arrogance as can be. 28 Hen. VI.—Was impeached for delivering up Anjou, and Mayne, and, by consequence, losing France. The Duke of Buckingham was impeached 17 and 18 K. Ja. though included in the general pardon. He was accused, though the matter came not to issue. There is a difference between prosecuting a man in the highest extremity of law, and not employing a servant, that has undone his master. 'Tis strange that all our Addresses cannot remove an obnoxious person. He knows not how the kingdom can be in security, if these Scotch Acts be continued as a scourge to hang over us. Once the Scots came in for the King, and another time a scourge to the kingdom. Would renew the Address.
Mr Dalmahoy.] Desires it may be considered, that the Duke of Lauderdale has been banished, and imprisoned, by the late usurped powers, from 1648 till the King's Restoration; and hopes he deserves not such severity.
Sir Henry Ford.] Brutus, having killed Cæsar, did ever after upbraid him with the title of Tyrant—Would not be suspected to condemn, or excuse, the Duke. Believes that the King might have answered categorically, as well as hypothetically, if he had pleased, to your Address. Had such an opinion, or doctrine, been delivered in the Council, as is alleged, he cannot think but the King's Counsel might have remembered it. 'Tis for your sake the King removes him not; and if not for yours, for the so many hundreds we represent. He violates not the Pardon. He remembers 1648. What great clemency has the King exercised in the Act of Indemnity? You know not what satisfaction the Duke has given the King. He has no personal obligation to the Duke, but believes him of great parts, and that he does not retain any such principles as are alleged. If he does, would banish him but two miles off, to Bedlam. Another Lord had many Articles against him, but not one of them proved (fn. 2). He knows who undertook to prove all the Articles, but proved never a one of them. Our Addresses take no effect, because what things are alleged are not made good.
Mr Powle.] Ford seemed to point at him in his discourse. One Article he undertook to prove against the Treasurer; and has farther proof of it, if you please to hear it.
Sir Francis Drake.] He hears that the Duke of Lauderdale was with the King in his chariot—Were he as high as Haman himself, he was not great enough to face this House. He thinks him not a fit companion for the King, and would have him removed.
Earl of Ancram.] Stands up to speak to the distinction he hears made between the Act of Oblivion, and Act of Grace. The Church of Rome says, "God pardons sins by Act of Grace; but for Oblivion of Sin, he purges it." As for what the Duke of Lauderdale is accused, "of the Scotch Militia Act," none should go out of their country upon service. But in the latter Act, on occasion of Rebellion, the Militia may be drawn out, it may be to Edinburgh, as well as any other place. He is against that Act of Scotland; and, instead of removing this Lord, would address the King, that he would find a way to repeal that Act.
Col. Birch.] Ford said, "If you thank not the King for his Answer, the people will." Something there is, besides all this; an Address to the King, with hearty thanks for the Act of Grace; but would have some difference made between that and an Act of Oblivion. Mark your last Preamble in the Address for his removal, "as a man dangerous." Your honour and the King's go together. In the former Session you took notice of it in your Address, and you were dismissed, and he soon after not only got English honour, but money too. When he went into the country, the people he met at church marked it, and wondered where we were—He means fairly, would have hearty thanks returned the King for his gracious pardon, and would distinguish between an Act of Grace and Oblivion.
Sir Edward Dering.] He can agree with Birch's premises, but not with his conclusion. There is no distinction between an Act of Grace and Oblivion, in Westminster-Hall, and he hopes you will make none here— He hears not a lawyer speak in it. If an officer, or a deputy-lieutenant, be pardoned, as is said, for an offence, by Act of Parliament, surely no farther notice is taken of it. As to that alleged "of the Act of Corporations, and the Assent and Consent in the Act of Uniformity, to be breaches made in the Act of Indemnity;" they are by Act of Parliament, which only can void another Act.
Sir John Bramstone.] The Duke's being with the King may be used as an argument both ways, with him— That he is insolent for being there; and had he fled, he might have been inferred guilty.
Mr Sawyer.] The Long Robe have been called for often, in this Debate, to give their opinion in the difference between an Act of Oblivion and Grace. In that of Oblivion, reproaches should cease, and there is a penalty affixed. Pardon is in the nature of Oblivion; for if any man be called a felon, if he be pardoned, an action of late lies upon it. If a man have a particular Pardon, though such pardons be good physic, yet they are ill food. We have had instances of words the Duke has spoken; and once the King, in his Answer, reminds you of the time, before the pardon—Has this, he thinks, by way of admiration—"Have you nothing else to say?" In the case of William De la Pole, Duke of Suffolk, the Lords differed from the Commons about his accusation, and an Act was made, that no man should be accused for promoting it—But his delivery up of towns was a collateral case. Now the King has put us upon enquiry, that, unless we show we have reason for a new Address, we cannot do it. The main Act of the Scotch Militia was before his employment there; and so the King's Answer puts you upon the examination, to show how is was. To say, this Answer of the King's is not satisfactory, without new matter!—He sees no cause of an Address.
Sir Robert Howard.] Perhaps the House is inflamed by the Duke of Lauderdale's high carriage—The Duke of Buckingham has not carried himself at this rate, though your vote was not so sharp upon him as upon this Duke— Moves that, in vindication of the honour of the House, upon your re-address, your apprehensions of the nation may be expressed—"While such a person is about the King," and submit it to him.
Mr Bennet.] 'Tis said abroad, that the way to have preferment, is to be under the displeasure of this House. 'Tis strange that one Scotchman should stand in the way of the House of Commons, that have given so many millions of money—Hopes that our Address will be penned with that modesty, that the King will grant it.
Serjeant Jones.] Perhaps this Duke was willing, in the Scotch Act, to take what might be had best for the King. As to the words he should speak, they are very ill; but he takes them to be pardoned by the Act; and that Act must be broken, if you proceed farther in this Address. The differences spoken of, between an Act of Pardon and Oblivion, are rather nominal than real. He shall say nothing of his own head or authority, but out of Lord Hobart's Reports. In his pleas, one called the plaintiff "Thief;" the defendant did confess he stole a horse, but had his pardon for it. 'Twas judged, that the plaintiff stood right to all intents and purposes, because the defendant had broke the Act of Oblivion. It is said, we have addressed twice—Sees no reason why we should do it a third time. If the King should say, "I know nothing of cause for removal of the Duke, yet I do remove him, for those words, and for the Scotch Act," he knows not how it can consist with your justice—God says, his mercy is over all his works. If we have not a confidence in the King's mercy, he knows not whether we can have confidence in any thing.
[A farther Address was ordered to be presented, 136 to 116.]