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, June 1.
The Lawyers before mentioned were brought to the Bar.
The Speaker told them, That they were summoned to give an account to the House of their appearing, as Counsel, at the Lords Bar, in the prosecution of a suit against a Member of the House of Commons, to the breach of his Privilege, thereby betraying the liberties of this House.
To this effect the Speaker delivered himself to each of the Counsel brought to the Bar, singly. The first was
Serjeant Pemberton] Who said, he was not conscious to himself that he had betrayed the liberties of this House, nor that he was accessary to the betraying [the rights of] any of the Commons of England; and gave a short narrative. That he was retained in an Appeal at the Lords Bar, and seeing Mr Dalmahoy's name, a Member of this House, in the Appeal, he refused to be retained. The parties concerned brought an Order of the Lords for him to be a Counsel in that Appeal. He received no see, nor was retained against Mr Dalmahoy. Then again came another Order from the Lords, to be in that cause, at his peril for refusing. So that being in this manner required to appear, he thought it his duty, though with an unwilling mind, to obey this Order. Mr Dalmahoy was not unwilling to have the cause heard, being for his advantage as much as any body's. The Counsel for the Appellees said, "Mr Dalmahoy was not concerned in the Appeal, and that the Appeal might go on without him." It was managed as Lady Bowyer's and Lady Cranbourn's cause. He was not apprehensive of any breach of Privilege upon your Member, and hopes you will not judge it so.
The Speaker asked him, If he had no knowledge of the Order of the House, that no Appeal should be brought against a Member at the Lords Bar?
Serjeant Pemberton said, He had no knowledge of any such Order; but one told him so in the Lords Lobby, but he did not apprehend it a breach of Privilege; and looks upon it that he is bound in duty to obey, when commanded by a superior Court; and, on refusal, such persons, in his condition, apprehend that penalties may fall upon them.
The next Counsel brought to the Bar was Sir John Churchill, to whom the Speaker delivered himself as before.
Sir John Churchill.] He can say little in the business. He was Counsel for Sir Nicholas Crispe, in the Chancery, and was desired to be in the Lords House also. As for contempt of your Order, he never contemned any; for he knows no Order that forbid him to be of Counsel in this cause to this time. His affairs are great, and he enquires not into affairs out of his sphere. He was told that Mr Dalmahoy had put in an Answer to the Appeal in the House of Lords; and so, according to below-stairs proceedings, 'tis a consent pro tanto. It was without his knowledge, that Sir Nicholas Crispe made affidavit, that he was in a streight for Counsel. The Lords made an Order, that he should appear at their Bar as Counsel, and he was served with it the next day to attend that cause, at his peril. Every man loves his life and liberty. When he saw an Order, he attended. He saw little of Privilege of Parliament in the case. The Counsel declared for Lady Bowyer, and such interest—In law and equity they might most appositely appear.
The Speaker, as before.
Serjeant Peck, at the Bar.] He did not know of any Order of this House to forbid him being of Counsel in the cause. He has been many years a Counsel for the parties in Chancery. He knew not of the two Orders of the Lords House—but the third was, at his peril, if he appeared not. He was served with a copy of the Order, but the original was not showed him. Lady Cranbourn is concerned as well as Mr Dalmahoy. He cannot but say, there was some discourse about this Order of the House of Commons; but it being not published, as usual, he thought himself not obliged to take notice of any such Order, till published. He supposes it a breach of Privilege to do it, if the Order had been published, as usual. He knows not whether a Member of this House may wave his Privilege, or not. He hopes he has not offended the revealed will of this House. The Sollicitor in this cause came to him, but without brief or see, and was served with an Order to plead this cause at the Lords Bar.
Mr Porter, at the Bar.] He did not attend at the Lords Bar, nor ever was in this cause, till assigned by Order from the Lords. Sir Nicholas Crispe would have retained him before; but he said he could not attend, and refused his see. Then Crispe brings the Order of the Lords, and he did attend, and thought it his duty to do so. He never knew of any Order of this House to the contrary, and knew not but your Member had waved his Privilege.
Sir Thomas Lee.] Thinks that these gentlemen ought to have the thanks of the House, if they have had such a care of the inherent rights of this House, as they tell you. They ought to know your Privilege; he is sure they can know it for their turns. Hopes that wearing a gown does not privilege a man to do any thing. Pemberton did not tell you, he did not know of your Order. In the case here now in controversy with the Lords, the Lords have no more to do but to deny you Conference —When in a Motion against one of your Members, Counsel shall be assigned by their Lordships order, 'tis but denying you Conference—Counsel ordered by the Lords, and the next immediate danger is to be avoided by you. The Counsel, it seems, know not your Privileges—Your Member appears in it, and yet they violate not your Privileges. Would have some slight punishment put upon the Counsel, as to be in custody, and then deliver them upon their petition.
Sir Thomas Clarges.] Is satisfied that all the Lords have done, in this matter is, coram non judice, and if the lawyers thus despise you, your work is at an end. If in the Lords House an Exchequer matter be, the Lord Chief Baron of the Exchequer gives sentence upon it, because he has had the hearing of it in his own Court, and the same is of the Chancery. He knows that no Court can be thus delegated. 15 E. III. "To determine all Causes,"—And three years after repealed and made void. Could that be done, but by Conference? This denying Conference is destructive to the Law of the land— Moves for confinement of the Counsel.
Sir Robert Carr.] Would make no steps in this matter, but as surely as he could. Whereas more is alleged by one of the Lawyers, in his justification, than the rest. —As for your Privilege, every man is bound to take notice of it. The Counsel have opened how highly criminal Sir Nicholas Crispe is, in the business, and would take notice of it. Their excuses were very different.
Sir Richard Temple.] Sees not how, as to the Order of the House, the Counsel could take notice of it, but as to your persons they must take notice. All their question and excuse of it is of no value—They are all alike—The thing is, whether they have not relied upon the practice below and above, of Members waving their Privilege. He was constrained to have a suit in an unissuable term, because he knew not your pleasure about waving Privilege—The parties you ought to make an example of—Would hear the Long Robe about waving privilege; in the mean time would send for the Principals, the Lawyers being but the accessaries.
Mr Hampden.] The Counsel, when your Member waved his Privilege, had Order upon Order, before they appeared; and one Lawyer said, they had a consultation, whether they should appear or not. Would not have that pass for doctrine, that every vote about your Privilege should be called "an Order."—They will call it abroad, a new Privilege. Would have some notice given of this Vote, as was moved.
Col. Birch.] Would not make any step in this business, but what should be absolutely necessary. Though Privilege cannot be quitted by your Member, without your leave for it, yet the standing upon it, always, may make it a great grievance. The Lawyers could not, and ought not, to take notice of your Vote, till you had promulgated it some way. He is far from arguing, that every Lawyer should suffer for pleading against any Member of yours. The case of Sir——Jones, in the last Convention—the opinion was, he should give Answer to a Bill in Chancery. He desired to be excused—Privileges have not formerly been so sacred. Trouble not yourselves with the retrospect of what these gentlemen have done, but look forward to what you have to do with the Lords.
Mr Secretary Coventry.] Persons have been punished for serving subpænas, but never knew a Lawyer punished for pleading. He hopes you will not use the Lords more unkindly than you do Westminster-Hall. He hopes you will not punish a man for not knowing what you keep secret. The Lords say, "their proceeding is right;" and you say, "it is not right." Will you put these men upon deciding the matter? 'Tis hard they should be punished, for giving an opinion in láw at the Lords Bar.
Sir William Coventry.] Would not have you declare, what your Members may do in waving Privilege. You may undo some of your Members, should you say he may not wave it. You will undo many merchants in their trading, who must do it upon credit, and many other gentlemens concerns also. Would have them sent for in custody, to give you an account, whether they knew the Order or not. It plainly appears they did not know these Orders, so as to make them criminal. If they had been served with your Order, it would have looked as a trepan to defend them from the Lords. They say, "that they had Reason to apprehend, that your Member waved his Privilege; because, before this Case happened, all men were under the opinion, that Privilege might be waved; and Mr Dalmahoy, putting in his Answer, did, ipso facto, wave his Privilege by it:" Because he was your Member, they wholly left him out of their pleading. Would have their submission, entered in your books, suffice, and no farther proceedings against them.
Some ladies were in the gallery, peeping over the gentlemens shoulders. The Speaker, spying them, called out, "What Borough do those ladies serve for?" To which Sir William Coventry replied, "They serve for the Speaker's Chamber." Sir Thomas Littleton said, "The Speaker might mistake them for gentlemen with fine sleeves, dressed like ladies." Says the Speaker, "I am sure, I saw petticoats."
Sir Thomas Lee.] One point you may hang upon; the Counsel say, "They took it for granted, that your Member had waved his Privilege, because he answered the Appeal brought against him." They know, that, in other Courts, they will have an Order, and your Member is to subscribe that Order, as done by his consent, thereby waving his Privilege. It seems the Lords claim a Right of proceeding, whether your Member wave his Privilege, or not. This passes in no Court whatsoever, and hopes it will not pass here.
Sir Thomas Stringer.] These gentlemen of the Long Robe are charged with a breach of your Order. He supposes, that is over, your Order having never been published. As to your Member waving his Privilege; a Member that has waved his Privilege may take it up again. If it appears that Mr Dalmahoy, after waving his Privilege, did take it up again, then the Counsel are to blame.
Serjeant Maynard.] No man will question, but a Member may wave his Privilege, else you can make no bargain, nor borrow money; and if a man cannot wave his Privilege, you may soon wave all your credits. Though a Man will wave Privilege, yet it is the Privilege of this House. A man is sued, and if a man answers the suit, and a judgment is given, it binds the party, and cannot be waved. Now, whether, in this Case, putting in an Answer to the Appeal be waving of Privilege, he that does it, does, as far as he can, submit to the Court. What would you have these gentlemen of the Long Robe do? "At their perils," (by the Lords Order) if they plead it not. Can the nation take notice of your Votes? (There was a time in the Long Parliament when the Votes were thrown out of the window for notice, the doors being shut.) Your Privilege is a law, your Vote is none; and now you having done this much, believes no man will disobey you.
Mr Garroway.] Before you part with your Privilege, would know it. In Westminster-Hall the Courts are known. This authority of the Lords is an encroachment, and your Member is giving up his rights and liberties, by such a submission. Your essential Privileges cannot be determined by the Lords House. The Counsel have undertaken them, and would have them under your Serjeant's custody for a day.
Mr Sawyer.] This is not touching your Member, but the Counsel that pleaded.—It must be for a breach of your Order, or Privilege, on your Member. This Vote is no notice, unless the Counsel were served with it—Hopes you will take care to reap the fruit— That the Counsel be served with your Order. 'Tis not not now the Question, whether your Member may wave his Privilege, but whether he had waved it. If your Member should replevin, shall no Counsel be heard in it? Shall the defendant sue, and no Counsel against him? It depends not upon your Privilege, but your Order only. Would, to preserve your Privilege, enter the Counsel's excuse, and serve the Counsel of Sir Nicholas Crispe with the Order.
Mr Powle.] Will move for your honour, and then let it fall where you please. It appears that Mr Dalmahoy is a party, and no man doubts it, and these Counsel have broken into it—You may put them in Custody, and, upon their submission, release them. It will else be thought you have no assurance of your Cause. A man may, at any time, insist upon his Privilege. The Counsel had the matter in consideration, before they pleaded; and this is no new Privilege you claim, but an old law, that you cannot depart from—Would have them committed to the Serjeant's custody, and the next hour he shall be as forward as any man to release them.
Sir William Hickman.] 'Tis a plain case, that the Counsel considered whether they should obey the Lords, or give up your Rights and Privileges—Would have both kept up, but the way of proceeding against the Counsel he submits to you.
Col. Titus.] Would consider what does excuse the Counsel, and what does not. They are not to be excused, because they are lawyers; for they who know best what your Privileges are, know the better that they offend in breaking them. He is not for punishing them because the Lords will lay them by the heels, if they do not plead. If that be made an excuse, the Lords will threaten them—This is not creating a new Privilege —Members ought not to be drawn from their attendance here. This is not a new Order, but an old Right— By not waving Privilege you undo many men, and hurt your own Members very much by it. If you punish these lawyers, your justice may be called in question, but in sending them away, without any thing more, you do not prudently. To satisfy therefore your justice and prudence too, would have them called in, and reproved.
Mr Swynfin.] The measures he would have you take are, how far this matter of the lawyers concerns you, as to the difference between you and the Lords. You could expect no other account from the Counsel than you have had—If you could acquit them without prejudice to you, he would consent to it willingly. He looks not upon the Case, as, whether Mr Dalmahoy can wave his Privilege, but whether you will wave yours. He looks upon the lawyers as Counsel for the Lords against you, more than the Client, and to be considered as such. They tell you, though they were not served with the Order, yet that they had taken notice of the difference between the Lords and you about Privileges, and know you had waved none of them. He thinks they had taken notice of your Vote; for Sir Nicholas Crispe swears, at the Lords Bar, "That the Counsel could not appear to plead his Cause, because of a Vote of yours." He must believe the Oath, if the party be not forsworn—The Counsel will not say, they appeared voluntarily, but for fear of the Lords they did. When a Privilege is broken below, you go not to the Courts, but upon the persons employed in the suit. The same Case is here. The Lords say, "they will send them to the Tower," and they tell you so. If you can and do say nothing to the Counsel, you do, in fact, give up the point to the Lords. This is the Case of Sheriffs and Bailiffs—He honours the Counsel, as learned men, and they stood out the thing twice—If they knew not your Vote, it was affected ignorance. He must think, by that Order, interest and necessity oblige you to punish the Counsel, and to commit them to the Serjeant.
Mr Sacheverell.] Has great respect for some of the gentlemen that were at the Bar, but much greater for the House. This is but barely a resolution of what was ever your right before. It seems strange that this should not be a breach of Privilege; but it put a great hardship on the Counsel, whether they should undergo the Lords displeasure, or break your Privilege. The Lords have taken all ways to break it, and, if the Lords find this successful, they will protect the Counsel that shall come after these. If you set no mark upon this, the Lords will call it protection to any for the future. Would therefore have a mark set upon the thing, but he leaves the severity to you.
The Counsel were ordered into custody of the Serjeant.
[The Question for committing Serjeant Pemberton was carried 154 to 146.
Sir John Fagg, for breaking the Privilege of the House, was sent to the Tower.]
Sir Thomas Littleton.] Mr Dalmahoy's Case is much worse than Sir John Fagg's, because you did not prohibit Fagg to proceed, though he acquainted you. In this Case your Member waves his Privilege, in a Court that takes it de jure, without acquainting you with it at all.
Sir Adam Brown.] Mr Dalmahoy could not tell you then it was depending, when it was not. The Counsel were for Lady Bowyer and Lady Cranbourne. Had Dalmahoy done otherwise than what he told the Speaker, it would have appeared that he relinquished the business wholly. If Lady Bowyer, &c. had good success, he should have the benefit, and if bad, his share thereof likewise.
Mr. Secretary Coventry.] Sir John Fagg acquainted you with the Appeal; Mr Dalmahoy did not; but Fagg, before he had your resolution, goes to the Lords Bar. After he saw your Order, he appears not any more. In this, under pretence of saving your Privilege, you lose it—Taking all the manner of the thing, you have no reason to send Fagg to the Tower.
Sir Thomas Littleton.] When a man is misrepeated, he may speak again to explain himself. The Question was not, "Whether putting such an Answer in, by Fagg, was such a Degree of waving as amounted to a retraction."
Sir Thomas Lee.] He thinks it in no man's power to wave Privilege to your destruction. The Lords would not proceed till they had all parties in Court; not an Order ex parte, but on full hearing—Churchill said, "he had witnesses to prove that Mr. Dalmahoy gave his confent to the proceedings." That's a great care of your Privilege to encourage Counsel to plead against them. You thought no more of Fagg's Case, and the thing sleeping, he put in his Answer,—but not one step neither in proceeding. Had Dalmahoy served you thus— He used no endeavours to hinder the proceeding; the Counsel appear against him, by his consent, and for it you send them to the Tower. 'Tis strange that now you should scruple to send your Member thither also.
Sir William Coventry.] He does not remember this allegation against Sir John Churchill, if it be of any validity, now turned upon your Member—A word in the Order may be by the error of the Clerk.—Dalmaboy made a party in the Appeal, and no Counsel appearing for him—What had passed in the proceedings must be the ground—before your Order—In fourteen years this will be the first Member you sent to the Tower. Whatever is your conveniency, let justice be your foundation. 'Tis the rule of justice, that a law should be known without retrospection, for a fact committed—Privilege, he finds, now has a new temperament. This was never distinguished till this occasion—Now a man knows his landmark.—This is quite contrary to rules of justice. Dalmahoy told you, he was to claim under Lady Bowyer.— He has perfectly obeyed your Command—You had two things on foot, "That the Lords had no right of Appeals, and upon no account your Members to be called to answer."—You have declared, "that no lawyer should appear against your Member." The gentleman has taken all possible care— That his Counsel disclaimed his retaining them, and no man declared to appear for him. Upon the whole matter, it is of dangerous consequence, to punish by retrospection, and he is perfectly against it.
Sir Richard Temple.] He cannot see much difference in the case between Dalmahoy and Fagg—It is said, "a retrospection is dangerous." You must then reverse the sentence against the lawyers. Does it appear to you that Dalmahoy let his concern go on in the crowd with the rest? The Counsel took it that he waved his Privilege— Judgment went by permission, if not by avowed consent, and he thinks Dalmahoy in the same predicament with Sir John Fagg.
Sir John Ernly.] If this Case of Dalmaboy's did not essentially differ from Sir John Fagg's, he should be very partial, if for him—Dalmahoy has done nothing since your Order to the contrary.
Mr Sacheverell.] Before you put the Question, would have gentlemen consider what they have done. If Dalmahoy is not concerned, you must retract the Vote against the Counsel. This argument for Dalmahoy might have been much stronger for Fagg—than now.
Sir William Coventry.] He that spoke last has almost imposed speaking upon him. That Vote referring to the lawyers, they are punished for waving Dalmahoy's Privilege, and now you will punish Dalmahoy for not waving it.
Mr Child.] He takes Dalmahoy to be guilty of the same fault with Fagg. Nothing can assert your Privilege more to posterity than this, though he has no unkindness for Dalmahoy.
Serjeant Maynard.] There is great difference, when Counsel appears against your Member. The 19th of April the Answer was put in; the 12th of May was the Hearing. This is a Petition against him; he makes Answer, and you make an Order against it, unless he prosecuted, and prayed hearing—There is a difference between one that appears without leave, and one that asks leave—In what condition is a man that puts his Answer into a Court of Judicature?—For when your pleasure was known, he did nothing; and must abide by his An swer after.
Mr Sacheverell.] May 3, the Order was about Fagg; Dalmahoy put in his Answer after.
The Question for sending Mr Dalmahoy to the Tower passed in the negative.
Sir William Coventry.] Dalmahoy, having withdrawn, during your Debate, ought now to be called to his seat.
The Serjeant was sent to bring him in accordingly.
Col. Birch.] If any Member has petitioned the Lords, as is said, he desires he may go to the Tower.
Mr Garroway.] You are now upon Privilege, and would go on upon all the cases, as to the modus of punishing them.
Sir Nicholas Carew.] Moved for Sir Nicholas Crispe to be sent for in custody—The same reason, as for the Counsel. There are three of them, Nicholas, Thomas, and John Crispe.
The Counsel was assigned by the Lords, May 27.
Sir Thomas Lee.] Would not have this case relative to Dalmahoy, because he is not voted to the Tower; but "for bringing an Appeal against your Vote, being your Member."
Sir Thomas Littleton.] Would send for them to answer, but not in custody. Crispe cannot legally take notice of your Order.
Sir Charles Harbord.] This is a Cause against six men, and one of them a parliament-man.—This may obstruct all the justice of England—A dangerous consequence!
Ordered, That Sir Nich. Crispe, [Mr John Crispe and Mr Thomas Crispe] be summoned to attend this House to-morrow morning.
Sir John Coventry.] You have now punished a Member for appearing at the Lords Bar without your leave— What will you do with a Member that petitions the Lords against another Member? Sir William Basset petitions against Mr Nosworthy.
Sir Edward Baynton.]—Not usual, in former times, to name a Member to avouch a thing.
Col. Strangways.] Where a thing may be had upon record, you do not usually call for evidence.
Sir Richard Temple.] Sometimes a petition is received, and not entered. Would have your Member (Basset) speak, before you give judgment upon him.
[The Committee appointed to inspect the Lords Journals, were ordered to see what proceedings they find in the petition alleged to be delivered by Sir William Basset.]
Wednesday, June 2.
Reasons for a Conference in answer to the Lords, (see May 31) as reported by the Committee, and this day agreed to by the House.
"The House of Commons do agree with the Lords, that Conferences between the two Houses of Parliament, are essential to parliamentary Proceedings, when they are agreed in the usual and parliamentary way; but the manner of the Lords agreement to a Conference, to have been upon Friday the 28th of May last, at ten of the clock, in the Painted Chamber, with limitation and Proviso, was such, as did necessitate the House of Commons, to forbear to meet at that Conference; and gave the first interruption to parliamentary proceedings between the two Houses."
"For that the Conference, desired by the Commons, was upon their Privileges, concerned in the Answer of the Lords, [to a Message of the House of Commons sent to the Lords] the 17th of May, in the Case of Mr Onslow; to which the Lords did not agree; but did only agree a Conference concerning their Privileges in general, without reference to the case of [the said] Mr Onslow, which was the only subject-matter of the desired Conference."
"The limitation in the Lords agreement to the Conference, with Proviso, "that nothing be offered at the Conference, that may any way concern the Lords Judicature," is, in effect, a denial of any Conference at all upon the subject upon which it was desired; which ought not to be."
"The Judicature, which the Lords claim in Appeals against a Member of the House of Commons, and the Privilege of that House, in that case, is so involved, that no Conference can be upon the latter, without some way touching the former."
"That this manner of agreeing to a Conference, with any limitation or Proviso, is against the course of proceedings between the two Houses of Parliament, in coming to Conferences; and doth seem to place a power in the managers of such Conferences, to judge whether such Provisoes be broken, or not; and accordingly to proceed, or break off the Conference, upon their own judgment."
"The House of Commons doubt not, but that when the Lords have considered of what is desired at this Conference, the good correspondency, which the Lords express they desire to continue, between the two Houses, (which the Commons are no less careful to maintain) will induce them to remove the present interruption of coming to Conferences; and therefore to agree to the Conference, as it was desired by the House of Commons, upon the Privileges of their House, concerned in the Lords Answer to the Message of the House of Commons, in the Case of Mr Onslow."
"That the particular limitation, "that nothing be offered at the Conference that may any way concern the Judicature of the Lords," appears unreasonable; for that their Lordships Judicature in Parliament is circumscribed by the laws of the land, as to their proceedings and judgments, and is, as well as all other Courts, subjected to Parliament."
These Reasons were soon after delivered at a Conference by Sir Thomas Lee.
A Message from the Lords, by the Lord Chief Justice North, and the Lord Chief Baron Turner, viz. "That the Lords desire a Conference with the House to-morrow, at ten of the clock, [in the Painted-Chamber] upon matters of high importance, concerning the Dignity of the King, and the Safety of the Government."
Sir Thomas Lee.] Wonders, if the matters are of so high importance, that we heard no sooner of them from the Lords.
The Conference was agreed to.
The Speaker.] Moved to have the Serjeant give an account of what he had done, in pursuance of the Warrant about taking the Counsel into Custody.
The Serjeant said] He repaired to the Lawyers several houses, but finding them not there, he found Sir John Churchill at his chambers; at the same time, about eleven o'clock at night, came the Usher of the Black Rod, who did discharge all persons from attaching the Counsel, and said, "he had order to repair to the Lord Mayor of London, and the Sheriffs, to be assisting to him." He required Sir John Churchill to be his prisoner, and that he must appear at eight of the clock, the next morning, before the Lords—This morning, as soon as he could meet with any Members to advise with, he spoke with Sir Thomas Lee, and Mr Sacheverell, who advised him, That, notwithstanding what the Black Rod had done, he should retake Sir John Churchill. Soon after, Churchill passed by in his coach, and, he serving him with the Warrant, engaged to come to the House of Commons, and give an account of what the Lords did—He would not let him go again into his coach, but took another coach. Churchill went to the Lords House, and he had two Lords with him, to whom, he said, he appealed, "Whether he must be a prisoner to the Black Rod, or appear at the House of Commons." The Lords had many footmen about them, and they called for the Black Rod, and rescued Churchill out of his hands.
The Warrant was read, viz. "To take into Custody the Counsel, &c. to answer Breach of Privilege, &c."
Sir Thomas Lee.] The Serjeant desired, this morning, to speak with him, and told him, "that the Black Rod had taken away Sir John Churchill from him." He asked him, "Had you no-body with you? You ought to have taken aid." Believes the House will not be satisfied with this answer—'Twas upon his advice that he went to his coach, and spoke with him; and thinks what he advised him was for the service of the House.
The Speaker.] He invited them (the Counsel) to dinner with him, and the Serjeant brought them in Custody. The Serjeant told him, he stayed for the Order for commitment of them, but could not have it till nine of the clock at night, neither that Order, nor the other for Sir John Fagg's commitment; and said, the Clerks would not make it out; and the Clerks say, the Serjeant would not come for it. He (the Speaker) had no Order till that time—but sent out his Warrant for taking the Counsel into Custody.
Sir Thomas Lee.] Moves, that the Speaker may have the Thanks of the House, for his care in the business.
Mr Powle.] Persons present in Court, and not discharged, have sufficient commitment, without an Order from the Speaker, they being not discharged of their commitment, and being brought in Custody.
Mr Vaughan.] The Speaker has granted a Warrant, without Order from the House, which ought not to be.
Sir Thomas Lee.] Thinks that the Speaker has done the House great service.
Sir Richard Temple.] The persons not being sentenced at the Bar, the Serjeant is not answerable for them, and discharge is implied by it.
The Speaker expressing some unwillingness, through modesty, to have the Thanks of the House, having done nothing but his duty, the Thanks of the House were Ordered him, for his great care [of the honour and service of the House] in issuing his Warrant, for apprehending and committing the Counsel.
Mr Garroway.] The Serjeant has given an account of Sir John Churchill—Would know what is become of the other three Counsel. He tells you, he has taken Churchill's parole—Would know what Order he has so to do. What condition are you in, when he takes upon him to judge when he must let people go?
The Speaker.] Thinks the Serjeant a Counsel for the prisoners. He told the Speaker every moment, that the Order was coming for their commitment, which stopped him from sending his Warrant sooner.
Sir Robert Carr.] 'Twas strangely contrived between the Serjeant and the Black Rod, to meet just at a time at Churchill's chambers—Moves to send the Serjeant to the Tower.
Col. Sandys.] The Serjeant tells you, he cannot find any of them but Churchill—He is sure that Pemberton was with him between eight and nine o'clock at night.
Mr Sawyer.] In other Courts, if an Order be made; they make no Chamber Order. The Order of Court is sufficient to take the person by; that Order is a justification to the Officer. When the House does expressly order it, the Speaker's Warrant is not necessary. Had the Order been taken out, you might have had them in Custody.
Col. Birch.] The Order was—"They should be committed by the Speaker's Warrant."
The Order was read. "Ordered, That they, &c. shall be taken into Custody of the Serjeant of this House."
Sir Thomas Lee.] 'Twas not long since the Question was here about the Serjeant's taking mens words. He had servants with him, and yet he attached not Churchill, who promised him to appear. It may be, 'twas an engagement, before Churchill promised the Serjeant, and he would keep his engagement. As long as you have such a Serjeant, you will never keep a prisoner. Remove, therefore, your Serjeant first, and then think what to do about the Counsel.
Col. Sandys.] He knows in what times the Serjeant was bred, and thinks him not fit to serve you any longer.
Sir Winston Churchill.] Churchill was prisoner to your Serjeant, and told you he was in Custody. Would know how he and the rest came out of Custody. He was at Churchill's chambers at five o'clock last night; and, by all his discourse, he thought himself a prisoner, and had no other discourse with him but as a prisoner. But if taken by two authorities, possibly he was more inclined to obey him that came best provided by authority.
The Speaker.] Told the Serjeant, "that if he permitted the Counsel to go at large, at supper, he would move the House to provide him a breakfast."
Sir Robert Howard.] Sometimes we have two Orders quite contrary to one another, and he has compared the Order in the Case of Sir John Prettyman. The Serjeant tells you, "he could not get the Orders;" but had he presented the Speaker's Warrant, in apprehending Churchill, he might have come to his end; there could be no excuse.—But your Serjeant having an Appeal depending before the Lords, he would have something done upon your Serjeant for neglecting his duty, and upon the Clerks for theirs—Would commit the Serjeant.
Sir Nicholas Carew.] By all this that has been said, the Serjeant seems to be rather Servant to the Lords than the Commons. He began the controversy first with the Lords, in Shirley's commitment, by his officers. If you take him not presently, he may go to the Lords for protection.
The Serjeant [Sir James Norfolk] was sent to the Tower, for [betraying his trust, in] not executing his office, in detaining the Counsel in Custody, and bringing them to the Bar, (having them committed to him) to answer their breach of Privilege against this House.
Col. Birch.] Standing up to speak, and the Speaker standing up likewise, said, One of us must sit down.
Mr Garroway.] One Serjeant, it seems, is gone after the other, but would not stop the business.
Sir Thomas Lee.] Would not trouble himself with any man's patent, or title, about this place of Serjeant— You may inform the King, by some of the Members of the Council, that your Serjeant has betrayed his trust, and desire the King to let you have another Serjeant,— for having neglected the service of this House.
Sir Richard Temple.] He has betrayed you in every trust you have employed him in. Here was one Colonel Colepepper, that sat several days here, and was no Member, and the Serjeant let him go at large, when committed to his custody. He corresponds with the Lords; he has had it from several Lords. If any man has ever betrayed his trust, the Serjeant has.
Sir Thomas Lee.] Sir Nicholas Stoughton, though ordered in custody, retains Counsel against Mr Onslow, your Member, and goes about town at large.
Serjeant Seys.] The Serjeant must be impeached, by a scire facias, to avoid his patent, as a misfezance and neglecting his office.
The Speaker.] If the Serjeant went with his mace, he has his authority, as a tipstaff, from the King's Bench— When persons go out of the presence of the House, you must send a Warrant to take them into custody.
Mr Garroway.] While you are questioning the Serjeant, he is run away—That is neglect of his trust, and would take all his Privilege from him, he deriving it from his attendance upon the House.
The Deputy-Serjeant Harsnett, informed the House, "That he had been in several places, that Serjeant Norfolk frequents, and cannot hear of him."
Ordered, That he should have a warrant to find him, and bring him in Custody.
Ordered, That the King be addressed to appoint another Serjeant at Arms [to attend this House] instead of Sir James Norfolk.
Sir William Coventry.] Privileges for Servants are not for their own sakes, but to attend their masters. He thinks that the Serjeant has no more Privilege than you will allow him, and no Privilege equal to your Members.
Sir Thomas Lee.] Would have the Order so made, that the Lord-Mayor, the Sheriffs, and all officers, may assist you to attach the Counsel, in case of escape.
Sir William Lowther.] The officer that now attends you is but Deputy-Serjeant—Should Norfolk revoke his deputation, your Warrant cannot be served by him.
Sir William Coventry.] There is no such thing in law, as a prisoner "upon parole;" 'tis only a word in war. If the matter of fact be not made out, that all, except Churchill, were in custody, we shall be put to it, in a Conference with the Lords.
Sir Winston Churchill.] There is no escape in Sir John Churchill, but your Serjeant so ordered it, that the Black-Rod did over-power him. He took it for his great Privilege to appear before the House of Commons, not doubting but to clear himself, and he took himself to be in custody.
The Speaker.] When he sent for the Counsel to dinner, he called for them in custody of the Serjeant.
Serjeant Jones.] By taking the Counsel into custody, he supposes you intend "legal custody."—They were only summoned to attend at the Bar, and when they were withdrawn, you ordered them into custody of the Serjeant at Arms. They cannot be taken into custody by parole, but by warrant. However they were in custody, they were not "legally" so, and so 'tis no the escape.
Mr Sawyer.] Thinks it "legal custody," because they were never discharged your Serjeant's Order. Therefore would have them taken into custody according to the former Order.
Mr Garroway.] Would have the Warrant run— "By his breach of trust for not detaining them as he ought to have done."—So charged, no prejudice to the Counsel.
Sir Winston Churchill.] They were forced—The Serjeant told him, that the Black Rod took Churchill by one sleeve, [of his gown] and he by another, and that the Black Rod had men ready to force him. He replied, "The Serjeant should have gone better provided for such a force."
Sir Thomas Lee.] You will not say that the Lords took him out of your hands; would rather have the Lords say it than you, and would have as little trouble upon you in it as may be.
Serjeant Seys.] The Question will be, below stairs, who had the prior custody, in an escape by force.
The Speaker.] The Counsel owned themselves in custody of the Serjeant, and went with him to dinner, as such.
Mr Vaughan.] Your Lobby is part of the House, and they were not discharged from thence.
Sir Thomas Meres.] The word of your Serjeant, by your direction, upon any disorder, to take a man, is a good custody.
Mr Sawyer.] Before an actual apprehension, there must be a "custody;" unless your officer returns an escape, you cannot take notice—Would put a Question, that you may not differ. If your Order refers to your former Order, 'tis enough.
Sir Richard Temple.] If the lawyers be protected by the Lords, they cannot be but as servants, or attendants—There must be an actual custody, at least—The Serjeant must tell them so. Would recite in the Warrant, "that whereas there was a failure in the execution of the last Order, in taking them into Custody, you now grant your Order for doing it."
Mr Garroway.] You have no ground for a new Order, if you allow a breach of execution in your old Order.
Sir Thomas Meres.] Without making any other recital of escape, would order the lawyers to be brought tomorrow morning to the Bar.
Col. Birch.] Unless they were in Custody, by your former Order—Churchill said, "he was in Custody; the Serjeant had him by one sleeve, and the Black Rod by the other." You must have a care that he was in your Custody.
Sir Edward Baynton.] "They had him by the sleeve." —Would know which sleeve makes him in Custody. One for us, and one for the Lords. Churchill said, "he would be a true prisoner," as the Serjeant tells you. He has not heard one true word from your officers, since he came into the House.
Col. Birch.] Let it not be forgotten, that he was not in Custody before they had him by the sleeve.
Mr Secretary Coventry.] The Counsel have not escaped, because they went from no-body. If their word be their Custody, they are in Custody. The Lawyers to be in two Custodies, will be Popery; the same body to be in two places at once.
Mr Powle.] If they escaped upon parole, 'tis a negative escape. If there be any doubt of the custody, 'tis upon Mr Porter, but in the other three 'tis plain. The Question will be, "Whether Peck, Pemberton, and Churchill, were in the Custody of the Serjeant."
Whereas Serjeant Peck, Serjeant Pemberton, Sir John Churchill, and Mr Porter, were by virtue of an Order, &c. taken into Custody, and, by the negligence of the Serjeant, have made their escape:
Ordered, That they be brought in Custody to the Bar, tomorrow morning, &c. [by Robert Read, Esq; the Serjeant at Arms now attending this House.]