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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Thursday, June 3.
The ingrossed Bill of Habeas Corpus was read [a third time].
Sir Thomas Littleton.] A person being in Custody of another, and not of an officer, the Bill lays a pecuniary penalty upon the person that detains him so in Custody, and disability, &c. of the deputy, or deputies, or any, in whose custody the prisoner shall be—We may [otherwise] imprison one another. Homo homini lupus.
Sir John Mallet.] The word "other person." Knows not whether Messengers of the Council be officers in law, or not.
Sir Thomas Lee.] "Obtain a Writ of Habeas Corpus" —He likes not the word "obtain;" as if it were not a Writ of Right—Would have it altered in the Bill.
The Bill passed, and was entitled, An Act for preservation of the liberty of the King's subjects.
Mr Vaughan reports the Conference from the Lords. (The Lord Privy Seal [Earl of Anglesea] managed it.) viz.
"The Lords do take notice of the House of Commons their ordering into Custody of their Serjeant, Sir John Churchill, Mr Serjeant Peck, Mr Serjeant Pemberton, and Mr [Charles] Porter, Counsellors at Law, assigned [by their Lordships to be of Counsel] in an Appeal heard at their Lordships Bar [in the Case of Sir Nicholas Crispe] against the Lady Bowyer, Mr Dalmahoy, and others."
"The Lords do adjudge the Order for their imprisonment to be illegal, arbitrary, and the execution thereof a great indignity to the King's Majesty, in his highest Court of Judicature in the kingdom (fn. 1), the Lords in Parliament, where his Majesty is highest in his Royal estate, and where the last resort of judging, upon Writs of Error, and Appeals in Equity, in all causes, and over all persons, is undoubtedly fixed, and permanently lodged."
"It is an unexampled usurpation, and breach of Privilege against the House of Peers, that their Orders or Judgments should be disputed, or endeavoured to be controuled, or the execution there of obstructed, by the Lower House of Parliament, who are no Court, nor have authority to administer an Oath, or give any Judgment."
"It is a transcendent invasion on the right and liberty of the subject, and against Magna Charta, the Petition of Right, and many other laws, which have provided, that no free man shall be imprisoned, or otherwise restrained of his liberty, but by due process of law."
"This tends to the subversion of the Government of this kingdom, and to [the] introducing [of] arbitrariness and disorder; because it is in nature of an injunction from the Lower House, who have no [authority nor] power of Judicature over inferior subjects; much less over the King and Lords, against the orders and judgments of the Supreme Court."
"We are farther commanded to acquaint you, that the Lords have, therefore, out of that justice which they are dispensers of, against oppression, and breach of laws, by judgment of this Court, set at liberty, by the Gentleman Usher of the Black Rod, [all] the said Serjeants and Counsellors, and prohibited the Lieutenant of the Tower, and [all] other keepers of prisons [and] jailors, and all persons whatsoever, from arresting, imprisoning, detaining, or otherwise molesting, or charging, the said gentlemen, or any of them, in this case: And if any person, of what degree soever, shall presume to the contrary, their Lordships will exercise the authority, with them intrusted, for putting the laws in execution."
" And we are farther commanded to read to you a Roll of Parliament, in the first year of the reign of King Henry IV. where of we have brought the original with us. N° 79.
In English, "That the Commons come and show to the King, "That, as Judgments in Parliament belong only to the King and Lords, and not to the Commons, except in case it please the King, out of his special grace, to acquaint them with those Judgments, in favour to them, so that no entry ought to be made prejudicial to them, to make them parties now, or hereafter, to any Judgments given, or hereafter to be given, in Parliament." To which the Archbishop of Canterbury answered, by the King's command, "That the Commons are but even petitioners and suitors, and that the King and Lords have ever had, and ever shall have, right to the Judicature of Parliament, as the Commons do themselves set forth; saving, that the King will have their advice, and assent, in making laws, and granting of subsidies, and doing such things for the public good." This Order to be observed and kept in time to come. (fn. 2)
Mr Garroway.] They are not read as papers from the Lords, but as notes from your Reporter, and not to be entered as the Lords paper.
Mr Mallet.] Only rises up to assert your honour, and the Commons of England—He opposes the reading again of the paper, which is presumption upon presumption, from the Lords The Lords are not, in this capacity, the highest, nor supreme Court. In the paper reported, they assert themselves, "the highest Judicature," excluding the King in pleno Parliamento.
Sir John Birkenhead.] This Roll of 1 H. IV. was when a bloody Usurper got into the Throne, and then he took the same House of Commons that placed him there, without calling a new one by Writ: He would not have a new one.—That usurping King made that Roll, and those Lords and Commons, that had murdered his predecessor, established him. That Roll was never printed nor published, and the first part of that Roll is obscured and lost—Arundel, Archbishop of Canterbury, that traytor, contrived this. To make this latter part of the Roll a precedent to pronounce against the Commons, —He wishes the Lords had never urged it, and that he had never lived to have heard it.
Serjeant Maynard.] The occasion arose not from the generality, but from your Member—There was a difference between the Earls of Derby and Lancaster—Repeals of what was done in the Parliament of R. II. No Parliament was called anew, but those that had acted before, were declared a Parliament. The Commons would not join in that Judgment of deposing the King. (Archbishop Arundel was he that suppressed the Lollards.) —There the Commons were petitioners, and demanders of their Right—They may still demand it—All the great words, in this Conference, are a supposition, that what you have done is illegal—Observes only, that the Question betwixt the Lords and the Commons is not so much as touched on in this Conference.
Mr Powle.] The Lords words, in the Conference, are very high, but their reasons very weak, in the Roll 1 H. IV. No. 79.—He has perused that Roll—The thing the Lords mention was done in a black time; but lay that aside, and take only the Record, and it makes against the Lords. 'Tis a petition that the Commons might not be parties to a judgment given against the King, R. II. The Lords would have nothing of the Commons upon record.—The Archbishop of Canterbury, Arundel's answer—" The Commons are not to be Parties, in judgments given by the Lords, only in subsidies." Observe, that when the Lords gave judgment, it was by petition from the Commons—They received the petitions, and judged the fitness of them to be brought up to the Lords, as a Grand Jury. The Judges give judgment, but cannot proceed, till the bill be found by the Grand Jury. The Lords agreed judgment, but not till the Commons asked it of them, which is the entitling of us to it by petition. Would consider of the paper against to-morrow, and doubts not but, upon Conference, to convince the Lords.
Mr Garroway.] This judgment the Lords gave is but one of the Rolls, and is none of the statute Rolls— The Lords have showed, he hopes, all they have; they scarce own you to be a part of the legislative power —Would have the Roll perused, and take ground from that to-morrow.
Sir Richard Temple.] To tell you, that your proceedings are "illegal, arbitrary, and against the dignity of the King," obliges you, in honour, to answer the Lords. Those arguments the Lords use had influence upon the late times, as much as any thing. This authority of the Lords Judicature, the late rebellion grew under, as much as any thing. At the same time that they exalt themselves above every thing, they do it above you. This makes you "a Lower House" indeed, and to be brought to wear the Lords coats and badges—below their footmen. He observes on the Record, "That it shall be in the same manner, the Commons demand it." 'Tis allowed they shall be demandants in it all; therefore, this Record, though made in ill times, when the Parliament was no Parliament, yet will make for us, since it runs "as the Commons demand."—The Lords would make the Commons parties in things they give no consent to.
Mr Sawyer.] Would not have the Lords Paper entered into your books, untill farther consideration. He has heard soldiers say, "that the danger is past, when the noise of guns is heard." In this paper, he sees nothing but noise, but no Answer to our Reasons at the Conference. Observes that this Record has been always insisted upon, as the only Diana the Lords have. In King James's time, when it was insisted upon, it showed nothing, but that when the Commons were loyal, the Lords have been otherwise. The Record is not a protestation against all judgments (Arundel answered, "hereafter the sole judgment in the King.")—They were not an illegal Parliament, but an undutiful one—by private means had murdered R. II. The Lords showed you not one original matter. Ever, before this Record, the Commons petitioned, and in this they did it. Would have some mark set upon the Message, and consider of it against to-morrow.
Mr Swynfin.] Observes only, let this Record be what it will, it no way concerns the point in difference betwixt the Lords and us. This Record cannot fortify them any farther than in such manner, as to give judgment upon the whole House of Commons. The root and ground of all is your Privilege; and, upon this, you have imprisoned the Counsel, for invading your rights, and this is the ground of the matter. The Lords say "that all manner of judgment is theirs—That of your particular Members—to all Courts—Goes to all. —No power to imprison against Magna Charta—You cannot imprison, because you cannot try."—How often have the Lords claimed right, that no Commoner has power to meddle with them? The Lords imprisoned Mr Fitton for a long time—He wonders where the Petition of Right and Magna Charta was then. If it be granted, that you have no judgment left, you have none over your own Members, which you have the only right of judging, during Privilege. He observes the whole Paper tells you, "You have no power of judgment in any case," which gives the Lords the whole power, and you must go to them for all judgment.
Sir Thomas Lee.] He cannot agree with those that are for adjourning the Debate. He thinks you are satisfied for another Conference, and 'tis but the loss of a day; the sooner you set your Members at work about the Conference, the better. Your Members, at the first sight, see the weakness of the Lords Paper—They will punish the Counsel, according to the execution of the law intrusted to them—Would have a Committee appointed to draw Reasons against the Lords Reasons.
Sir Robert Carr.] Great words are commonly used, when no great reason can be given: Would, in the Conference, show as much reason as they. By the Reasons the Lords have given, it seems they have risen too early, after having fat up so late the last night.
Mr Waller.] Is not for adjourning the Debate, but for a Committee to draw up Reasons, upon the Debate, for Conference—Observes the appetite the Lords have for this Judicature. You ask always three things of the King, at the opening of a Parliament, not of right, but of grace; freedom from arrests; freedom of speech; and access to the King's person. The King has given them us, and the Lords take them away—Totum ex partibus. If the Lords can judge the whole, they may judge parts. See the danger of this Pretence! The Lords, in time, may pretend, not only to jurisdiction over us, but to an explanatory Power of the Law. In the Long Parliament, the Lords voted "that the King made war against the Parliament." That Vote came down from the Lords to the Commons, but would not pass here—Possibly, sometimes, this might be called, "the Lower House;" but when the Lords send us a Bill, they say, soit baillè aux Communes. The foundation of the castle is the noblest part—The Commons are the foundation; the Lords are the superstructure and ornament, the pinnacles, and parapets. Armies are paid by the Commons, they maintain the war. Let the Lords remember, that they are Lords Spiritual and Temporal. The Lords Spiritual have no advantage, though named before them. Lord Chief Justice Coke told him once, in a clashing betwixt the Chancellor and Chief Justice, "Additio probat minoritatem, in a great contest for priority." He never saw a Bill of Subsidy lost there; but once the Lords altered the rates in a Bill, and the King lost still by it. It seems, by this Conference, the Lords would have as much power over us, as we have over our Serjeant. Would have a Committee to draw up Reasons for a Conference.
Mr Attorney Montagu.] The Lords, in this Conference, have "lowered" us, that we never were such "a Lower House" before. They say, "that our Order is illegal, arbitary, an usurpation, and invasion, a subversion of the government"—Should such words be said of any private person, knows not what would come of it. Moves for a Committee.
Mr Secretary Coventry.] Would always deal with our adversaries, where you are strongest. The Lords have given us ill words; we cannot give them worse; he would give them better. If what the Lords have said be true, we have wronged every commoner of England, them, and the King, and knows not whom we can wrong beside. Waller tells you of the late times—We have now a right King, a loyal House of Commons, and hopes we shall comport ourselves so well for the King, that we shall do well enough with the Lords. The observation made upon the Record is, "that there was then a wrong King, and a wrong House of Commons."
Sir Charles Wheeler.] When the Lords shall hear these words repeated, that they have given us at the Confeference, they will scarce believe them to be their own. Many of them are like new converts—Shall say no more of them.—Why did the Lords trouble themselves with the Commons in the Record, if they thought they had no interest in the matter?
Sir Thomas Meres.] This is a new original Conference from the Lords, asked on a subject-matter of its own; such a one as they would hardly grant to us. 'Tis a Conference "on the safety of the King and Government." One would think that the foundations were shaken, and —Parturiunt monies—It brought forth four Lawyers; that is really the subject-matter of the Conference. They always tell us we ought to particularize the matter of our Conferences. From what they have told us, there is another matter that makes them winch; they know not how to tell you of it, because they cannot parliamentarily take notice of it. Do but look towards a horse's sore back, and he will winch.—Our Votes about Appeals we have passed—They say, "all judgment is in them," and now we begin to consider whether they have any. We meddled at first with our own Privilege, for support of King and Government; we must argue the more safe way for it, and then upon the Record. When the Lords had power, it may be three or four of them could face the King with an army. The more back you go into record, you will find the Commons have the more right to what they claim. Consider that the Commons have got lands since that Record, and got off their coats and badges—"A supreme Court of Judicature," they style themselves—'Tis strange, when we are all under one King—Would have a Committee to draw up Reasons for a Conference upon the Debate.
Mr Vaughan.] Is melancholy, not for ourselves, but for the Lords—That they will have their Power uncontroulable and indisputable—we have reason to argue them down. All this is but an abstract of a Case-Book, (of Lord Holles, written, as is said, by him) but such language they give us, as is not sufferable amongst private men. At this rate, your Mace may be taken from you.
Colonel Birch.] When he heard "the Dignity of the King, and safety of the kingdom," he was afraid the Lords would demand a sum of money of us—He was so chid, at the Conference, amongst the rest, that his ears are scarce cold yet. They began with the little mouse "of imprisoning the Lawyers," and "the Lords judge it illegal and arbitrary; an indignity to the King, and transcendent usurpation, and invasion of the Government."—He knew the Lords could not make it good in English, and therefore they would do it in French, by the Record they read. They told us, "they had set the Lawyers at liberty, and would do as much by any that should imprison them again."—The Painted Chamber was full, and this was a Remonstrance, with a witness. He knows not how to answer Reasons, when none are given. But if you take no notice of theirs, the whole nation will.
[Resolved, That a Conference be desired with the Lords, on the subject-matter of the last Conference.
Mr Porter was ordered to be apprehended; and Sir John Fagg, on his Petition, was released.]
Friday, June 4.
The Speaker.] Gives the House an account, that, in his passage through the Hall, he saw Serjeant Pemberion, who paid him no respect, though near him, or very slightly; upon which he sent the Mace to take him into Custody, according to former Order, together with the rest of the Counsel.
Sir Thomas Meres.] He finds that these men have committed a new offence. They have protections in their pockets against the Commons of England.
Sir Thomas Littleton.] The Counsel being in Custody, how to dispose of them now presently, is the Question. He sees the House has the same inclination of disposing them all alike. Would have the House informed, whether your Serjeant (Topham) has a house, and accommodation for them; and would have him reap the profit, rather than send them to the Tower, having done his duty so well.
Sir Lionel Jenkins.] Defence is natural to all men, be the crime what it will; and would have the Counsel heard, before any new sentence pass upon them.
Sir Richard Temple.] Unless you intend them a farther punishment, the last motion is not to be embraced. If they are taken only in fresh suit, then you may bring them to the Bar, being a new cause; but not for the former offence, the sentence for it being commitment to the Serjeant—Offers this—You did not so solemnly pronounce sentence before upon them, though he could have wished it for the solemnity-sake; but now you have nothing to do, but to order the Serjeant to take them into custody.
Mr Sacbeverell.] Though he has great respect for the Counsel, yet you can justify yourselves no way but by sending them to the Tower. For the Lords censure you highly, and prohibit the Lieutenant of the Tower, and all others, to detain them. Would have you give instructions to the Lieutenant of the Tower, and he believes he will keep them according to your Order.
Mr Powle.] Speaks now for ourselves—Should we do that to our own Members within doors, for breaking our Orders, and not do it to those without doors? Would be as just to these gentlemen as to ourselves.
Sir Thomas Meres.] This will remain to posterity, and since the Lords have taken occasion, in the Conference, to defy you in this point, therefore would do it—He doubts not but the Lieutenant of the Tower will keep them—He is sure he ought to do it.
Col. Strangways.] They have protection from the Lords, in contempt of your Order. He believes the Lieutenant will obey your Order before the Lords, and would have them sent to the Tower.
Sir Robert Howard.] 'Tis true, here's a condemnation of the thing, but sees not that Serjeant Pemberton has done it—He was taken down to Order, for excusing Serjeant Pemberton, condemned by Order.
Sir Robert Carr.] Pemberton was the guiltiest of all the four. You have passed your judgment upon him— 'Twas then the opinion of the House, and submits to it now.
Sir Philip Warwick.] Such issues of blood have followed, upon occasions of this nature, that every body knows the history—Would take his eye from it—He thinks, at this time, it would be much fairer for the Counsel to be in your Custody; and he hopes the Lords will have more prudence than to rescue them—Moves, that, when we go to Conference, we let the Lords know what we have done, as just, and for the honour of the nation, and good of the Commons; but, in all things, a soft word pacifies—Would keep them in Custody, and, upon this matter, would confer with the Lords.
Mr Hale.] Would avoid confusion, and putting the kingdom in a flame, by what we do. Has some reason for that, as other men have. To avoid confusion, would have them sent to the Tower; and knows not what commotion may be, if sent any where but to the Tower.
Sir John Birkenhead.] Is against sending them to the Tower, because the Lieutenant has Orders expressly, from the Lords, not to receive them.
Col. Sandys.] Wonders he should inform you of a thing that is not so—There is no such Order.
The same said Sir Robert Carr.
Mr Secretary Coventry.] In all private families, in differences between man and wife, they desire to hide it from the inferior part of the family, that the disorder may not appear publickly. This difference betwixt the Lords and us may be very fatal—Knows not how God's judgments are upon us—You have vindicated your Privileges as high as ever; you have these persons rescued from the Lords; but should they rescue them again in the streets, you are not one step forwarder than you were before. Whilst we can with safety go on softly, why should we precipitate? Would keep them in your own Custody, now you have them. You have many busy, discontented men, that attend your motions, and knows not how you can give a countenance to a greater commotion—" I rise for the Lords," says one. "And I for the Commons," says another—What Constable can tell whom to obey?
Lord Obrien.] As to the disorders from several factions, is sorry to hear that Coventry should know they are so formidable; but, for the Constables, the laws of the kingdom will back our Orders; and does not doubt of it.
Sir Thomas Littleton.] Did apprehend, that the Motion for sending them to the Tower was waved; and, therefore, insisted not on it; but is now for sending them to the Tower—Warwick told you, "he had seen clashing about Jurisdiction, and an issue of blood was the consequence;" but that was clashing with the King's power, this is with one another. This is contending about the King's honour involved, and apprehends no fatal consequences by it. The hubbub apprehended will be less, by sending them to the Tower, than into the Custody of the Serjeant. Would not have them, in a triumphant manner, carried through the city, but by water—If they are carried to the Serjeant's house, they must go through part of the city; and the Lords will break locks and bolts to rescue them—especially would send them to the Tower, having this advantage, that the Lieutenant is a Member of our own (fn. 3).
Sir Edward Dering.] The Question is, Whether they shall be in the Custody of the Serjeant, or be sent to the Tower—If, in new cases, he moves a new thing, he hopes he shall be pardoned, as others have been—Moves to take their words for their appearance.
Sir Henry Capel.] You are told—not to send them to the Tower, because of the Lords Order. He thinks our Privilege, as well as Property, involved in this matter. If we have no satisfaction from the Lords, by this Conference, then shall be as forward as any man to send them to the Tower; but would wave it for the present.
Sir Thomas Meres.] Speaks only to the interception of them by the way—They may be as well intercepted, if at all, before they come within Ludgate; but thinks them very safe—The Commons of England have greater interest than the Lords. Let them go where they will, the Commons lands will be in England—He matters the thing of rescue no more than a foot-ball play. Apprehends no danger, let them go to the proper prison of this House; as you sent your Member, would send them; and thinks it as good an Answer as you can possibly give to the Lords at Conference.
Sir Charles Wheeler.] Apprehends not the force that can be done by the Black Rod and some footmen. Would have them go to the Serjeant's house in St Paul's Churchyard, and your honour is sufficiently vindicated by it.
They were ordered to be sent to the Tower, 152 to 147.
[The Thanks of the House were returned to the Speaker, for causing Mr Serjeant Pemberton to be seized, and taken into Custody. And the Serjeant was ordered to go, with his Mace, into Westminster-Hall, and to seize, and bring in Custody, the three other Lawyers, which he did accordingly.]
Sir Thomas Meres.] They may go, one by one, away; or you may let them down, as St Paul was, in a basket.
Sir Nicholas Carew.] Hears it was moved, in the Lords House, that the Counsel should have the King's guard, and that Lord was popishly affected. Would have them guarded to the Tower, but with the utmost privacy that may be.
Lord Obrien.] Many of the Lords barges are on the water, and knows not how safe they may be without guard.
The Speaker.] You must now express the special matter in your Order, Why they are committed to the Tower, viz. "for a breach of Privilege of this House, and contempt of an Order."—The fact must be expressly recited.
Mr Hampden.] Speaks to having the Warrant in the King's name—We have our authority, of right, and not of grace. If we use the King's name, the King may release them, if the Warrant be not in the usual style.
Sir John Robinson. [Lieutenant of the Tower.] He knows the Serjeant, particularly, to be a stout and honest man, and will answer for him.
Sir Nicholas Carew.] You must reckon from the time your first Serjeant took them, and so in some measure he (Topham) ought to have a recompence for his pains.
Mr Leveson Gower (fn. 4), from a motion of something to be given to the Serjeant] said, he would have no money now given from this House, upon any occasion whatever.
Mr Hampden reports [from the Committee appointed to peruse the Lords Journal, and to see what proceedings there are, concerning the making the river] Ouse, in the county of Bedford, navigable. A Petition exhibited by the Earl of Bolingbroke, and others, and an Order of the Lords House, dated May 28 last.]
Mr Sacheverell.] This is a perfect original cause in the Lords House.
Sir Thomas Clarges.] By the Lords receiving the Petition, and the Orders they have made thereupon, it is clearly an original cause; and the consequence is, to take an authority before them, never yet taken, viz. to explain an Act of Parliament, which is not in the Lords power to do, and only belongs to the Judges. Would refer it to the Committee, to have more of the matter before them.
Sir Humpbrey Wynch.] Several rivers were, by Act of Parliament, made navigable; as in Surry, &c. with this in Bedfordshire, which was written after the same copy; this was designed to agree with undertakers—Nothing was done in Surry or Bedfordshire by them. Sir John Napier was addressed unto by the county, about it, and it is to be heard at the Lords Bar this day. Now, whether you will take cognizance, whether the county of Bedford shall appear upon the Lords Summons [is the Question]—He knows not what other handle you can take it by—Being a construction of the law, and all the Commons of England concerned—He leaves it to you.
Sir Nicholas Carew.] The words in the Act of Parliament, "that the Justices of Peace of the county may do it, in case of failure of the undertakers," he conceives not coercive upon them. If the Lords will make the word "may" to be "must," they will, by it, alter all the law of England.
Sir John Duncombe.] The Lords, by this, do not only make themselves judges of the law, but of the fitness of executing it—They bring gentlemen to dispute this at the Lords Bar, that ought to be in Westminster-Hall.
Sir Robert Carr, and others, Moved for Conference upon it—This is an Appeal from some gentlemen to the Lords; not of the majority of the county, but some few gentlemen. If by Appeal out of the King's-Bench, either party might do it; but, from a few Justices, hopes, upon a Conference, it may be a justification to the gentlemen, that they do not appear—Desires not to be surprized in the matter, being of more moment than for those gentlemen, and your concern—Would consider of it.
Sir Thomas Meres.] At this rate, the Lords making themselves a House of Superintendency over the nation, the Militia Act, and all Acts, will be expounded by them. Would have the thing thought upon, a few days before, by Conference, we engage in the matter. Would rather, by a Message, prevent this afternoon's proceeding—Moves it, but proffers it only.
The Warrant for Commitment of the Lawyers was read— "For prosecuting a suit, in the Lords House, against Mr Dalmahoy, a Member of this House—whom you are to detain during the pleasure of this House."—The Warrant was thus altered: "For breach of Privilege, and contempt of the authority of this House."—Directed to Sir John Robinson, Lieutenant of the Tower. By a mistake, the Clerk wrote the date of the Warrant—" Given in the 22d year of our reign."
The Speaker.] is informed, as much as he can be of such a thing without doors, that the Lords have ordered to take our Serjeant into Custody—He should be loth that the Serjeant should be taken out of his coach, and go home without a Mace.
Mr Stockdale.] We will wait upon the Speaker to Temple-Bar, and meet him thereagain to-morrow morning.
Sir Thomas Meres.] Sees we are at some stand and amazement. If the thing be true, 'tis a matter of that nature that has not been done before.
Sir Robert Carr, and others.] Moved to have the Lords Journal inspected; this being but a report without doors.
Mr Sacheverell.] The foul minute-books are only yet written, and the Journal not till night, and then the Lords Clerk signs it.
The Speaker.] Informs the House, that Mr Palmes has a note sent him by a person, whose hand he knows, that the Lords have made an Order to seize our Serjeant and his Mace, by the Black Rod.
Sir Thomas Meres.] Moves that Mr Palmes may go to the person that sent him the note, to know how this person comes to be informed of this Vote.
Ordered, That the Lords Journal be inspected about it.
The doors were ordered to be locked, and no Member to go out, without leave. Several who were indisposed had leave to go out. The Secretaries of State, Sir Joseph Williamson, and Mr Henry Coventry, desired leave to go out, being a Councilday—Were not given leave without a Debate.
Sir Winston Churchill.] Moves, that if the Mace be a badge of your authority, and that taken away, how you can be supplied, or have the effects of it—As Counsellors are sworn to the King, moves they may have liberty to attend his Majesty, that we may not be mis-interpreted, as being kept prisoners here.
Mr Vaughan.] When an authority judges you, 'tis not as if a private man did it.
Mr Sacheverell.] Is against the Motion of a Message to the Lords; it is to your dishonour. What will you go upon? Because the Lords have made such an Order, you go, and complain to them. When the thing is once done, you know what you have to do.
Lord Obrien.] The King is not yet concerned in the matter, and would by no means engage him in it.
Sir Nicholas Carew.] Finds we are in a streight. If this Order be true, he believes it a bugbear only. There are persons employed above for the Conference; would adjourn for two hours, to try whether the thing be so, or no, and whether your Mace will be taken from you.
Sir Thomas Clarges.] Would sit still, 'till the Counsel be safe in the Tower; and, if our Serjeant be violated, we may consider of it.
Mr Secretary Coventry.] Lord Ambassador Lockhart is lately dead in France, and his presence is very requisite to attend the Council, about that and other affairs, the King having appointed the Council to be held at five o'clock this afternoon.
Sir Robert Carr.] Mr Palmes and himself were with Mr Brown, the Lords Clerk, who told them that the minute-book being not yet read and inspected in the Lords House, it could not be showed; but being asked by them, about the Lords Order for seizing our Serjeant, said, "such an Order was made by the Lords; but thinks the Mace safe, they having taken care to provide another Serjeant."
Sir John Duncombe.] The Lords do sit, and 'tis very fit you should sit too, and not leave things wild as they are, and let the Government be torn in pieces by these unfortunate differences—He hopes something may be found out to accommodate this difference.
Sir Thomas Meres.] We are now a full House, and a business of this nature requires it; and fears we shall not be so again, if we adjourn; and, unless there be a great reason for an excuse, such as absent themselves ought to be punished. Would have a sitting House, whilst these Lawyers are going to the Tower.; having somewhat of moment to move to you.
Sir Charles Wheeler.] Would hear the Report from the Committee, who have prepared your Reasons for the Conference, and send the Counsel away; and you may adjourn for two hours.
Sir Nicholas Carew.] If you adjourn, would have a full House when we meet again; and, in order to that, will take notice of his right and left hand man.
The Speaker.] The deputies may go with the prisoners to the Tower, and the Serjeant stay with him; which will prevent the Lords from taking the Serjeant, for the present.
In the Afternoon.
Sir Nicholas Carew, Upon a motion for reading the Bill, for the better collecting of small Tythes, and other Church Duties, said, He would secure the nine parts, before we meddle with the tenth. Would have the Bill of Coal read, seeing we are so hot, to add fuel to the fire.
Mr Garroway.] He was not here in the morning, and would have an account of what the Serjeant has done with the gentlemen of the Long Robe, whom you sent to the Tower.——It was seconded.
The Serjeant (Topham) gave the House an account, that Sir John Robinson has received the prisoners, and he has a note under his hand for the receipt of them.
Mr Garroway.] Now that your Order is executed, would think how your servant, the Serjeant, may be justified, that he may not be taken from us. Would have your Serjeant armed with your authority, that, if any one should take him in Custody, he may have power to bring him before you.
Mr Sawyer.] If you please to grant him your Order of Privilege, with this extraordinary Clause, "That all persons should be aiding and assisting to him," thinks it will be authority sufficient.
Sir Nicholas Carew.] Would have his Order in his mouth, that he is Serjeant of the House of Commons.
Mr Powle.] Thinks you lessen your authority by this motion. Would not suppose any man dares do it— But he asked pardon, having not been long here in the morning (being employed about the Reasons for the Conference) when notice was given that the Lords had made an Order for taking our Serjeant.
Sir Thomas Clarges.] Would not have the Order run, "If any person, or persons, seize your Serjeant;" 'tis too general. Would have it, "By Order from the Lords." There is no Privilege can be against Treason, &c. The Lords cannot grant any such Warrant, though a Justice of Peace may—Therefore would have that added.
Sir Nicholas Carew.] If a Member be attached for Felony, &c. you will, he believes, examine the Warrant, before you yield your Member; else, upon pretences, your Members may be taken from you.
The words of the Serjeant's protection were proffered to be— "arresting, detaining, molesting, or otherwise charging."
Mr Sawyer.] Would keep to the legal words, that it may go in a legal way.
Sir John Hanmer.] Would have it run—"against the Privilege of this House."
Mr Sacbeverell.] Not that, for by it you make your Serjeant judge of the Privilege of this House.
The Answer to the Lords last Conference was reported by Sir Thomas Lee; and, with some few alterations, passed as follows:
" Your Lordships having desired the last Conference, "upon matters of high importance, concerning the dignity of the King, and the safety of the Government," the Commons did not expect to hear from your Lordships, at that Conference, things so contrary to, and inconsistent with, the matter upon which the said Conference was desired, as were then delivered by your Lordships."
"It was much below the expectation of the Commons, that, after a representation in your Lordships Message, of matters of so high importance, the particular upon which the Conference was grounded, should be only the Commitment of four Lawyers to the Custody of their own Serjeant at Arms, for a manifest violation of the Privilege of their House."
"But the Commons were much more surprized, when your Lordships had introduced the Conference, with an assurance that it was in order to a good correspondence between the two Houses, that your Lordships should [immediately] assume a Power to judge the Order of the House of Commons, for the imprisonment of Mr Serjeant Pemberton, Mr Serjeant Peck, Sir John Churchill, and Mr Charles Porter, to be "illegal and arbitrary, and the execution thereof a great indignity to the King's Majesty;" with many other high reflections upon the House of Commons, throughout the whole Conference; whereby your Lordships have condemned the whole House of Commons, as criminal; which is without precedent, or example, or any ground of reason so to do."
"It is not "against the King's dignity" for the House of Commons to punish, by imprisonment, a Commoner, that is guilty of violating their Privileges; that being according to the known laws and custom of Parliament, and the right of their Privileges, declared by the King's royal predecessors, in former Parliaments, and by himself in this."
"But your Lordships claiming to be the "Supreme Court," and that "his Majesty is highest in his royal estate, in the Court of Judicature there," is a diminution of the dignity of the King, who "is highest in his royal estate, in full Parliament," and is derogatory to the authority of the whole Parliament, by appropriating it to yourselves."
"The Commons did not infringe any Privileges of the House of Peers, but only defend and maintain their own. On the other side, your Lordships do highly intrench upon the [rights and] Privileges of the House of Commons, denying them to be a Court, or to have [any] authority, or power, of Judicature; which, if admitted, will leave them without any authority or power to preserve themselves."
"As to what your Lordships call "a transcendent invasion of the rights and liberties of the subject, and against Magna Charta, the Petition of Right, and many other laws," the House of Commons presume, that your Lordships know, that neither the Great Charter, the Petition of Right, nor any other laws, do take away the law and custom of Parliament, or of either House of Parliament; or else your Lordships have much forgotten the Great Charter, and those other laws, in the several judgments your Lordships have passed upon the King's subjects, in cases of Privilege."
"But the Commons cannot find, by Magna Charta, or by any other law, or ancient custom of Parliament, that your Lordships have any Jurisdiction, in cases of Appeal from Courts of Equity."
"We are farther commanded to acquaint you, that the enlargement of the said persons, imprisoned by Order of the House of Commons, by the Gentleman-Usher of the Black Rod, and the Prohibition, with threats to all officers, and other persons whatsoever, not to receive, or detain them, is an apparent breach of the Rights and Privileges of the House of Commons; and they have therefore caused them to be retaken into the Custody of the Serjeant at Arms, and have committed them to the Tower."
"As to the Parliament-Roll of 1 H. IV. caused to be read by your Lordships, at the last Conference, but not applied, the Commons apprehend, that it doth not concern the case in question; for that this Record was made upon occasion of Judgments given by the Lords, to depose and imprison their lawful King, to which the Commons were unwilling to be made parties; and therefore the Commons conceive it will not be for the honour of your Lordships to make farther use of that Record."
"But we are commanded to read to your Lordships the Parliament-Roll of 4 E. III. N° 6; which if your Lordships please to consider, they doubt not but your Lordships will find occasion to apply it to the present purpose."
Rotul. Parliament. 4 Ed. III. N° 6.
Concordia ne trabetur in exemplarium.
"And it is assented, and agreed by our Lord the King, and all the great Men, in full Parliament, that although the said Peers and Judges took upon them, in the presence of our Lord the King, to make and to give the said Judgments, by assent of the King, upon some of those which were not at all their Peers; and this, by reason of the murder of their Liege Lord, and destruction of him, which was so near of the blood royal, and son of a King; that, therefore, the said Peers, which now are, or the Peers which shall be in time to come, be not at all bound, nor charged to give Judgments upon others, than upon their own Peers; nor to do this have the Peers of the land any power, but of this for ever to be discharged and acquitted; and that the aforesaid Judgments, so given, be not drawn into example, nor into consequence, in time to come; by which the said Peers may be charged hereafter to judge others than their own Peers, against the law of the land, if the like case should happen, which God forbid (fn. 5)."
Mr Powle.] The occasion of this Record was this: Edward II. being deposed by Roger Mortimer, Earl of March, was murdered at Derkeley-Castle, by the contrivance of Mortimer. The Earl of Kent, his own uncle, for endeavouring to release him, was impeached in Parliament, with others, &c. But the Judgment given against them in Parliament was revoked, as erroneous. And his son cited them, and they were adjudged to death, by Parliament; and so this Law came to be made. And the Record is marked in the margin, Ne trahetur in exemplarium"—Assented by the King in full Parliament. —Not to render Judgment but upon their Peers, against the law of the land."
Ordered, That Sir Henry Capel be sent to desire a Conference with the Lords, on the subject-matter of the last Conference.