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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Saturday, June 5.
Mr Secretary Coventry brought a Message from the King, to attend him in the Banquetting-House, and to adjourn the House till four o'clock in the afternoon [for that purpose.]
Sir Eliab Harvey.] Would, according to the King's command, adjourn the House; but would address the King to have our Serjeant restored, who has served us so well (fn. 1).
Mr Secretary Coventry.] The King has been informed of certain words that fell from the Serjeant, whether misrepresented to the King, or no, he knows not; but the King has suspended his attendance, till he be better informed. It is for things said before the difference between the Lords and us, and before he was in our employment.
Mr Garroway.] Is glad that the Serjeant is not taken away as a part of us, for doing his duty. We ought therefore to address the King most especially, that the man be not ruined.
Mr Secretary Coventry.] He dares pawn his head upon it, that the King did not remove him upon the Address of the Lords.
Mr Secretary Williamson.] The King was informed of some words that fell from the Serjeant, and assures you that his removal was not from the Lords Address.—He is but a servant of the King's, from day to day, as he is employed.
Colonel Strangways.] Would have the Debate adjourned till we meet again.
Sir Thomas Lee.] 'Tis well moved to adjourn—Your sense is as well known by adjourning, as by a Question. Would adjourn the Debate till four o'clock in the afternoon.
[The Debate concerning the Serjeant was adjourned till 5.]
In the afternoon both Houses attended the King in the Banquetting-House, where he spoke as follows: [Reported by the Speaker.]
"My Lords and Gentlemen,
"You may remember, that, at the meeting of this Session, I told you, no endeavours would be wanting to make the continuance of this Parliament unpracticable. I am sorry that experience has so quickly showed you the truth of what I then said: But I hope you are all convinced, that the intent of all this, in the "contrivers," is to procure a dissolution. I confess, I look upon it, as a most malicious design of those who are enemies to me, and the Church of England; and, were the contrivers (fn. 2) known, should not doubt, but the dislike of their practices would alone be a means of bringing the Houses to a good understanding. But, since I cannot prescribe any way how to arrive at the discovery of it, I must tell you plainly my opinion, that the means of coming to any composure betwixt yourselves, cannot be without admitting of such full Conferences, as either may convince one another by the Reasons then offered, or enable me to judge rightly of the differences, when all has been said on both sides, which the matter will afford: For I am not to suffer these differences to grow to disorders in the whole kingdom, if I can prevent it; and, I am sure, my judgment shall always be impartial between my two Houses of Parliament."
"But I must let you know, that whilst you are in Debate about your Privileges, I will not suffer my own to be invaded"
"I have nothing more to say at this time, but to desire, as I did when we met first, that you would yet consider, and not suffer ill mens designs to hinder this Session from a happy conclusion."
Sir Thomas Littleton.] If any man has done contrary to his duty in this House, would have him named. He knows nothing of what persons without doors have done.
Colonel Sandys.] Prays that thanks may be returned to the King, "for his care of the kingdom in general." And, if any persons be guilty, would have a Committee to enquire, and report, if any persons have informed the King, &c.
Mr Garroway.] Notwithstanding all the fair Addresses that we have made to the Lords, they give us such language, as is not to be supported, amongst private persons. He never can give way for a Committee to search into the authors of this contrivance, that his Majesty mentions in his speech, (as is moved) Will you go rake for matter abroad, when Members pursue their duty here as they ought to do? The King has given us liberty of speech, and this matter of difference betwixt the Lords and us was put upon us. Would have a Question put, "That what your Members have done in this matter is in pursuance of their trust."
Colonel Sandys.] Intended no charge upon your Members, by what he said, but, if common same be true, which asperses this House, we ought to vindicate ourselves.
Sir William Portman.] Moves that we may return thanks to his Majesty for his gracious Speech.
Sir Thomas Lee.] Common same, that asperses this House, has not yet reached him; but if such a thing be, Sandys ought to tell you who such persons are that report it.
The King's Speech was read a second time.
Mr Secretary Coventry.] If the King knew who were the persons that endeavour this, he would tell you. If nothing came from abroad, nothing could come within —The King says not the thing here nor there, nor any where, nor that any of you know it.—Believes it far from the King.
Sir Henry Ford.] After so gracious a Speech, no Motion is so natural as "unanimous thanks," and, before the consideration of any thing, moves the Question for thanks.
Mr Vaughan.] We must take care not only for ourselves, but for without doors. If any man abroad brought the Appeal into the Lords House, by persuasion, or ill intent, let him be named. He owns so far the contrivance, as that he opened the matter here. Never was House of Commons more loyal than this. If common same accuse at all, it will accuse us for giving so much money. The King's Speech is kind, but you ought to purge yourselves.
Sir George Downing.] Where were we, if we wanted a King, and were only Lords and Commons? This is the happiest day he ever saw. He is for the Lords as a good and wholesome part of the government—The King must keep us together, or we are miserable. God has inspired the King in what he has now done, and let us give God and the King thanks.
Mr Sawyer.] If the King had accused the House, or any Member of it, then it would have been time for such a Vote as is moved for. But the King's expression has quite another strain. Has not the King given judgment for you, where the root of all this difference has been, "denying of Conference," which you sent to the Lords for ?—But he believes malicious men are strong— That such an unparliamentary matter should be delivered by the Lords, at a Conference, cannot be but by some ill instruments. 'Tis fit for you to enquire into it, as a Grand Jury.— Has not the dissolution of this Parliament been talked of without doors? They have practised and endeavoured it. Would put the Vote for thanks.
Sir Thomas Meres.] Prorogations have been pretty well practised, but dissolution not yet. Let us sweep this contrivance out of our own House. If it be in the Lords House, let it be there. 'Tis not certain who the contrivers of this were. All he can say is, he is sure there are none in this House. 'Tis a good Question, in order to your right, to clear yourselves. Is sure, if the King dissolves us, he knows not where to get a better Parliament.
Sir Robert Carr.] Agrees not with the Motion. Would have thanks, first put to the Question, and then the other, for clearing ourselves.
Mr Powle.] Is not unwilling to speak in this matter, because no man can impute this difference to him, though he has been employed in the service of the House about it. Believes, not only that there is a design of the dissolution of this Parliament, but of all Parliaments— Doubts not those whose boundless ambition makes them hate Parliaments, this, or any other; and these men would make wounds. First, they put the King upon harsh things to his subjects.—When Addresses are made to him of grievances, they tell him, "We intrench upon his Prerogative."—The first blow is to dissolve the House, and then they can more easily persuade him to call no more, by telling him, "There will be tumultuous elections, and men of ill principles chosen." These men are afraid to look Parliaments in the face. Some such men as these insist upon general things, as men that carry on popular designs in Parliament. In 1 K. James, something of this was done. In his Speech, there was a smaller imputation upon the House, than the King made to-day. In his Speech, they then passed a Vote to clear all their Members, and drew up an apology, and sent it to the King, to justify their proceedings. He cannot imagine but that such contrivers, as the King mentions, must be some of this House. Would have thanks voted to the King, "for his gracious expressions in his Speech," but would not rest there—And then humbly beg of the King, "to declare what he has been informed of this House." 'Tis necessary and just to pass a Vote to clear all the Members of this House.
Sir John Duncombe.] This Parliament needs no vindication of their proceedings. What necessity is there of vindicating yourselves? Such reports as these will be, whilst the world stands. You have been a happy Parliament, and hopes you will continue so.
Sir William Coventry.] The House will bear him witness, and yourself, Mr Speaker, that he has, in this matter, been of the coolest side. He concurs with what is told you, that our loyalty is well known, and needs no vindication. If particular Members must lie under a suspicion, and we are slack and remiss in vindicating questions, will it not lie upon their hearts? What shall gentlemen say? That, out of apprehensions, you will not vindicate your Members? It will make men mealy-mouthed, for the future, and take away liberty of speech in Parliament. Would have that respect put upon the King, only to read his Speech, and then adjourn the House, seriously to think of thanks.—He is glad to have an opportunity to speak what he has done —And moves for thanks to the King, for his gracious Speech to us.
Colonel Strangways.] We ought to thank God and the King, for being on our side, in moving both Houses to Conferences. The Lords and we have been hitherto like Ambassadors, giving memorials to one another. Whoever goes about to dissolve this Parliament, goes about to ruin both Church and State—He never thought to see such a day—When the King has proposed so wise a way, he hopes no man backward to give him thanks, and then he will be as much as any man, for punishing all men without doors.
Lord Cavendish.] He heartily concurs for thanks to the King, but there's one clause in his Speech he understands not. Would understand what he thanks for— An expression being somewhat dark in it.
Mr Sacheverell.] Has been zealous in this business with the Lords, and therefore he is not unfit to speak. Would have the Question put, as is offered, "for the gracious expressions in the King's Speech." Is for thanks, if not generally expressed.
Sir Thomas Meres.] Your Question, first insisted on, was, "The gracious expressions in his Majesty's Speech." 'Tis a strange thing, that when a thing is unanimously agred on, you, Mr Speaker, will put it otherwise.
Colonel Titus.] What would gentlemen give thanks for, if not for the gracious expressions in his Majesty's Speech?
Resolved, nem. con. That the humble thanks of this House be returned to his Majesty, for the gracious expressions in his Speech (fn. 3), this day made to both Houses of Parliament: And that the Members of the Privy-Council deliver the thanks.
Sir Richard Temple.] Before you rise, would consider of the vindication of the House, that the Votes may go both together. He cannot tell any thing that the House has showed more temper in than in this matter with the Lords. The Lords send you an answer, with an equivocation, "They will be as careful of your Privileges as of their own." In all the steps we have made, he insists that they have been with the greatest temper that can be. If any man has been so bold as to misrepresent these things to the King, he would know him. On this ground would go constantly. Would have some declaration, to vindicate yourselves in these cases, that we have declared our duty and loyalty to the King.
Sir Winston Churchill.] When smoke rises, supposes fire, and you usually search for it—Would fling water upon this fire, and know where it is. He believes that the King means no-body within these walls; and though he is present with the Lords often, and knows what is said and done, yet he hopes the fault is not there. He believes the men to be they that do not own the King's supremacy. Would give the King an account, not only of our innocence, but "that with our lives and fortunes we will defend him."
Mr Sacheverell.] Proposes some words towards a Question, viz. "That in matters of difference between the Lords and us, no Member hath done any thing against his duty, or trust reposed in him."
Mr Secretary Coventry.] Is far from opposing your Members vindicating themselves; but by a friend was told, and by several of the other House, that the Speaker, Sir Robert Carr, and himself, were the three heaters of the House, and the greatest incendiaries. He can encourage no-body in his vindication, but would be glad of it.
Sir Thomas Lee.] Believes that Coventry alone has not, but most have been zealous in this matter; therefore would have the Question for all.
Sir Robert Carr.] Is so much for the Commons of England, that though he reported it not of himself, he is glad that others did.
Sir William Coventry.] 'Twill be good service to tell the King, that the contrivers of such disturbances are not here, so they may be sought for elsewhere. Offers this for the Question, "that it does not appear, by any proceedings here, that any Member has been guilty of the contrivance of any disturbance."
Sir Henry Ford.] Was told by a noble Lord, "That he was one that accompanied the Serjeant into WestminsterHall, to take the Lawyers." Is sorry to hear himself named, in the Lords House, on an ill occasion—When the Serjeant, in a riotous manner, seized the Counsel, at the Chancery Bar, he protests he saw not the Serjeant, nor the Counsel.
Sir Robert Carr.] Thinks that a particular Question should be put for this Member, and left out of the General Question.
Sir Thomas Meres.] Thinks that Ford's excuse lessens his honour in the business.
Col. Stroude.] Moves that every man stand up, and avow the vote.
Sir William Coventry.] An extraordinary practice, for an ordinary case, is not usual—The shorter way would be, for any man that thinks himself guilty, to stand up, and say so.
Mr Secretary Coventry.] To say, "that no man has contrived any thing," is not to be done. Suppose that such a thing should hereafter appear to have been.
Mr Swynfin.] Conceives the Question narrow enough already. Would have the words assertory as set down. We cannot be guilty of any contrivance of any thing whatsoever. The midwifry of any such contrivance is by naming it, and you are the nurses of it, by debating it—Such a conuivance, by moving any thing, makes the whole House of Commons liable to a restraint, not to consult with their Fellow-Members, to propose any thing—Thinks the liberty of the House gone—Would read the Question full as it is, assertory, without any diminution at all.
Mr Vaughan.] In voting this, as 'tis propounded, you do that which all the world knows you do, and need no more proof, by vote, than that the sun shines.
Sir Thomas Littleton.] Adding the word "appear," is putting in a blemish, and a suspicion, as if it may appear otherwise.
Col. Titus.] Would have no man aver what we cannot aver, in this House. You cannot affirm, that he had no contrivance in this difference. He himself only does.
Sir Lionel Jenkins.] The Oath of Compurgation is not, "that the person did not do such a fact." The Compurgators swear ad credibilitatem only; "they believe him not guilty."
Sir Thomas Lee.] Every Act of Jenkins's Court is positive.
Mr Secretary Coventry.] If you put the word "Judgment" into the Question, it will imply, that we are examining one another. We have found fault with the Lords for this word "Judgment." He cannot judge a thing that he does not examine, and cannot agree to the word in the Question.
Mr Powle.] The word "Judgment" does not reasonably imply. what Coventry says—It is "upon all the circumstances he hears in this House;" and if you take it so, you may pass it.
Resolved, [171 to 104] That it doth not appear to this House, that any Member thereof hath either "contrived" or promoted the difference between the two Houses of Parliament, or in asserting the Rights of the Commons of England, and the Privilege of this House, to have done any thing inconsistent with his duty, or the trust reposed in him.
Monday, June 7. (fn. 4)
The Bill was read for abolishing the Writ de hæretico comburendo.
Resolved, That Serjeant Topham hath done nothing contrary to his duty, in [retaking, bringing in Custody, and] conveying the Counsel to the Tower, by Order of this House.
Sir Thomas Lee.] This is no more than keeping a claim to the Serjeant. In what condition, for his safety, and your honour, do you leave him, in case he should be apprehended, and should not appear owned to be your Officer?
Sir William Coventry.] By putting the Question in general, it may be taken up under what notion whatsoever.
Mr Garroway.] This little Debate has kept a claim, and you may adjourn it as often as you will.
Sir Thomas Clarges.] Topham having done very acceptable service to this House, you found, next day, a stranger in his place. That's the subject of Debate.
Resolved, That the Debate concerning Serjeant Topham's removal be adjourned to Wednesday.
Mr Garroway.] Moves to have your protection for Sir John Fagg (as you have given Sir John Napier) who is summoned, by Order from the Lords, to appear at their Bar the 8th of June, or sentence will pass upon him, upon default.
Sir John Fagg.] You may remember where he lately was [the Tower] The noise of the lions is scarce out of his ears. He humbly submits to what you please to do with him; whether you will give him leave to submit to the Lords Order, and wave his Privilege, or that you will be pleased to give him your Protection.
Sir Thomas Lee] Every Order of this kind strangely lessens you; and by this time you have sufficiently declared your opinion. Would have no Order made, but some declaration of your own rights in this case.
The Speaker.] You have made an Order, "that no man shall attend any summons to the Lords House, without your leave." The Question is, Whether you will give Fagg leave.
Sir Thomas Meres.] The case is an Appeal from a Court of Equity; and you have voted, "that the Lords have no Jurisdiction in such Appeals." If you give Fagg leave to appear, you retract your Vote.
Sir Charles Wheeler.] Would not deny Fagg leave to appear, for that lessens you. Would have nothing voted in the case.
Sir Thomas Lee.] Fagg ought to have your protection, and, in it, would have you declare your opinion.
Sir Thomas Meres.] They that are gone to the Tower will say, you have not posted up your Order, before they were sent to the Tower; and, since, it has been posted all over England sufficiently.
Sir John Fagg.] Twenty more, besides himself, are concerned—'Tis an Appeal from the Exchequer and Chancery. Would preserve your Privileges, but hopes you will take care of his cause a little.
Sir Thomas Clarges.] This Appeal is an original cause; and if you do any thing, set up an Order, posted upon the House-door, for all to take notice of it.
Mr Vaughan.] You ought to make some declaratory Vote, or give Fagg liberty to appear.
Mr Garroway.] Should Fagg lose one thousand pounds per annum by this, he is ruined by obeying you. Would have it laid to heart, and you are to give him the protection of the House.
The Speaker.] You must first see that Fagg has a prejudice, and then consider of it.
Sir Thomas Lee.] 'Tis a hardship that a gentleman must be first undone, and that then you will consider to protect him.
Mr Hampden.] Common charity obliges us to do something in this. Suppose the Lords pass Judgment, will it not be executed when you are up? And you give Fagg a Vote, which ceases with you. 'Tis a little thing he asks of you, a Vote to assist and protect him, in order to do something else afterwards—A Vote will do little—And then, some farther effectual remedy to take effect, when you rise, and are gone.
Sir William Coventry.] 'Tis unreasonable that Fagg should be subjected, by this Order of the Lords, to lose one thousand pounds per ann. But he knows not what you can do. Consider what way in the world you can help him, unless a Vote "of assisting him with your lives and fortunes," (reflecting upon Sir Edmund Jennings, who moved, in the Debate upon removing the English Forces out of France) "To assist the King, in case of war, with our lives and fortunes." Unless you deter the Counsel from proceeding, he knows no other way.
Sir William Hickman.] Will you put a gentleman upon this, and do nothing for him? Would do something in prohibiting the proceedings.
Sir Richard Temple.] One way is, to declare something against the persons that shall proceed in the cause at the Lords Bar. He could wish you had a general Order, "that all Counsellors, in such Appeals, and all executors of such Orders of the Lords, upon such Appeals, are betrayers of the liberty of the subjects;" since the thing has been started, would do something. You have also a remedy to address the King, as a grievance, to take such judgments from the file.
Mr Powle.] Would have it considered, what power the Lords have to put these Orders in execution. The Chancery has no legal way of Commitment, but for disobeying their Orders. He believes the Lords will not take upon them to commit Members of this House, unless they take upon them their "Supreme Justice," that they mentioned at the Conference. In any Vote about the forbidding the Counsel to appear, he will join with you.
Mr Attorney Montagu.] If the Lords had proceeded against Fagg pro inconfesso, the proceeding must have been long; but now Fagg has appeared, they may proceed presently.
Col. Birch.] Would have three or four gentlemen withdraw, and pen something for the purpose.
Sir Charles Wheeler.] When the nation shall understand that this is not only in the case of Fagg's Privilege, but of the whole Commons——
Sir Thomas Lee.] Would have gentlemen remember, that, in a prorogation for half a year, there was no execution of the Lords Judgment (fn. 5), for fear of your sitting again. In the first Vote would encourage—to stand by Fagg.
Sir Henry Ford.] You had as good reckon the Lords infallible, as go about, by a Bill, to remedy this. He knows not what you can do more than you have done. If you gain the point, all the Lords have done, is coram non judice; if not, you must leave Fagg to his own resolution.
Sir John Ernly.] Fagg has submitted his cause to a hearing at the Lords Bar; now, for preserving the best understanding that can be, would send up to the Lords a Message, "That, though Fagg has appeared, yet you cannot lay down the Privilege of this House." And Fagg may lay it open at the Lords Bar, that he cannot get leave to proceed any farther in the business.
Sir Edward Baynton.] Conceives it no objection of power in the House to do any thing farther, or what we have done already. But Fagg having waved his Privilege once, should he stand upon it now, it would look like a faint prosecution, to let fall his cause. The Lords ordered the cause for to-morrow, before we were at the Banquetting-House to attend the King. What if Fagg be allowed, in case the cause comes on, to plead his Privilege, and that he has no mind to go to the Tower again?—He might lie some where else much cheaper.
Mr Streete.] Fagg's cause has come to issue at the Lords Bar, and he cannot plead his Privilege now.
Mr Sacheverell.] Wonders at the Motion—He forgets the Order of the House, and now moves you for Fagg to put in his Plea of Privilege.
Mr Sawyer.] Touching Appeals to the Lords, without limitation of the case of your Member, the King has given his judgment, "that Conferences might be, and ought to be, a way to a better understanding." You, by passing this Judgment, will give occasion to the Lords to say, "it is a final reason against all Conference, you having judged it." Would have you go in the wisest, and easiest steps. Fagg has put in his Plea, and joined Issue. All the Lords can do is to dismiss it below, and then some years will be before the accounts will be adjusted. Finds that the Lords, in one Vote, have concurred with us; we having acquitted our Members of contrivance in this business, and they theirs.
Mr Garroway.] If we do not declare something in it, we give up all; and if we go to Conference, we shall have no ground for it. Put the first Question about Fagg's protection.
1st Question, proposed: Sir John Fagg shall have the protection of this House, in an Appeal brought against him at the Lords Bar.
2d Question. Any person, or persons, aiding or assisting to any Appeals brought against any of the Commons of England, from any Courts of Equity, shall be judged a betrayer of the Liberties of the Subject.
Sir John Duncombe.] Possibly we may have a Conference again—Whatever you speak here, you are judges of; but, at a Conference, all the world judges of your Reasons; and such a Vote makes the difference impossible ever to be reconciled again.
Sir Winston Churchill.] Takes a Vote to be the opinion of the House on the subject-matter debated, being but inductive of a Conference; and you have no reason yet to be of another mind, till the Lords can convince you.
Mr Secretary Coventry.] Cannot see how you can make this Vote look forward, but it must look backward. The Lords have heard and determined Appeals formerly; but, whether right or wrong, he knows not. He is for vindicating your Member, but think whether the Lords have not then this advantage over you, that 'tis the first time you have interrupted it.
Sir Charles Wheeler.] Could have wished that this difficulty had been started, "that the Lords have no Jurisdiction in Appeals from Courts of Equity," before the Vote than now.
Mr Garroway.] 'Tis unnecessary to put in the last words, "Against Privilege of Parliament." If you are afraid to assert this, how will you ever come by it? If it comes to a Law, he hopes that a Proviso will be with a retrospect for what is past, that men may have no prejudice by it.
Sir Rob. Howard.] You have passed a Vote already for your Member, and we should now do it for the Public. Privilege of Members here arises from public trust. If it be not so, why do we desire it of the King? Would have this Vote turned thus—" Assist against a Member in an Appeal." If the Lords can, [let them] tell you why a private cause should draw you from a public duty —But generally you will find a world of precedents against you. When we launch out into these general expressions, we have destroyed their arguments, by making them too general—Would not have us do so too.
Sir William Coventry.] The words of the Question are too strong for the present occasion. Would not have it "Betrayers of the Liberty of the Commons of England," though the Lords chose to tell you so, and no occasion given for it, and have forbidden the keepers of prisons to receive the Counsel.
Col. Titus.] He who spoke last has convinced me.
Sir Thomas Lee.] Whilst the Lords are possessed of this with a strong hand, they will not confer with you; but this Vote will put the Lords upon speedy Conference, to justify their right.
Sir Robert Carr.] Would not part with his Privilege for all the estate he has; though he believes the Lords will deny us Conference, because they have no reasons to show us against it. But till you have tried this way of Conference first, would not pass the Vote.
Mr Secretary Williamson.] You have judged the matter already in the general Vote. The special occasion calls it in aid to Sir John Fagg; but the whole matter must be melted down at a Conference.
Sir Thomas Meres.] Such a Vote as this passed not in Skinner's case, till a Conference was had; so that you were got to a brick wall; you could go no farther. Upon that Vote of the Lords Jurisdiction in Appeals, you have not so much as asked Conference. In Fagg's case, you have been denied Conference twice—And to that only you may apply it.
Sir John Duncombe.] Fears, that you will make the thing wider, and, by consequence, more desperate. By force of reason, possibly, you may be convinced at a Conference, and so ease your Vote. Therefore would apply the Vote to Fagg, or any other Member, only.
Sir Thomas Littleton.] In Fagg's case, they denied you Conference, and so the Vote is proper But in such a mixed subject as this, partly Judicature, and partly Privilege, this is a reason why you should pass the Vote.
Sir Lionel Jenkins.] In case of a single person, as Fagg is, wonders that this Vote should be—" If executed in time of Prorogation, a betrayer of the liberties of the nation."
Resolved, That Sir John Fagg do not appear before the Lords, but that he shall be protected by this House against any Judgment that shall be given against him by the Lords.
Resolved, That if any person, or persons, shall aid, or assist, in putting in execution any such [Sentence or] Judgment, they shall be adjudged [and taken to be] betrayers of the rights and liberties of the Commons of England, and the Privileges of this House, [and shall be proceeded against accordingly.]
Sir Thomas Littleton.] When Serjeant Peck was at the Bar, he told you, with some subtlety, "that he had not offended your revealed will;" therefore would have the Votes published. Would have it ordered, that the Vote be set up declaratory of your right.
Ordered, That these Votes be fairly written, and posted up at the door of Westminster-Hall, [and in the Lobby of this House.]
Sir Thomas Lee.] Knows nothing of it, but as a buzz and noise, as if the Great Seal was sent to the Tower, with a Habeas Corpus returnable sine die—Would have the Lieutenant of the Tower directed what to do in the case.
Sir Richard Temple.] "A Habeas Corpus returnable coram rege in parliamento." The Commons have done it for a person in prison—As to what you will do in the case, inform yourselves well in matter of fact.
Mr Wild.] The Lieutenant of the Tower may stay for an alias and a plures, and you may know what to do.
Col. Birch.] He doubts the Lieutenant of the Tower's power of standing out, as is said. Would have the Lawyers ordered to be here, and would adjourn to four o'clock in the afternoon, and meet on this business only.
[The House adjourned accordingly.]
In the Afternoon [Sir Thomas Littleton reports, That, according to Order, the Committee appointed to inspect the Lords Journal, went to Mr Browne's house, and that Mr Browne returned this Answer; "That he could not show the Minutes, or acquaint them with any thing that hath been done this day."]
Debate on the Habeas Corpus.
Sir Robert Howard.] We are all in expectation of what the Long Robe will say in this affair. What he has to say, are only his sudden thoughts; if he considered them, they would be weak enough—Seconds the motion, "that the Lieutenant of the Tower do not deliver the prisoners, till he has the Order of the House for it." That, as he has received them in obedience to you, he may not deliver them in obedience to the Lords. In all these cases there is corpus cum causâ to be returned. If it be a Chancery Writ returnable before the Lords, any Writ may be as well, and so they may command any thing at their will and pleasure. If they can do it, 'tis a better way than any the Lords can take, to make the whole Law of England returnable before them. 'Tis strange that a Writ of Chancery should be sent where the Cause returnable they have no cognizance of, as a Habeas Corpus. 1 and 2 Ph. and Mary—"No Writ shall issue of Habeas Corpus, but shall be signed by one of the Justices of the Court, out of which it issues, upon penalty of the Clerk's being fined." Plainly not the intention of the law, but to issue these Writs out of the Chief Justice's Court. It will be in some measure a conceding, that what you have already done is not lawful—Therefore 'tis fit to countenance the Lieutenant of the Tower, in his obeying the Order.
Mr Secretary Coventry.] Any thing you do mistake in this matter is a step you can never recall. Howard says, "that whatever Court the Habeas Corpus is issued out of, 'tis returnable there." Suppose the Secretary of State commit a man—He acknowledged his error, and proceeded no farther.
Mr Powle.] Is sorry that the gentlemen of the Long Robe are so backward in giving you their opinion. Though he is not bred to the Law, shall humbly offer his thoughts. If the Lords have power to send an Habeas Corpus, they may take judicial cognizance of any thing. 'Tis worthy to enquire, whether the Lords are a Court of ordinary Jurisdiction; if so, then every thing must be brought before them. He knows no Jurisdiction they have but by Writs of Error. 'Tis true, the Lords have issued out Writs of Habeas Corpus. This House also has done it, returnable coram rege in parliamento—Sometimes to each Bar; but in no case, but when Members of either House have been detained, (as in Shirley's case, 1 K. James—The Writ was returnable coram rege in parliamento)—or for some of their necessary attendants. But he knows not when ever the Lords have done it in our Privileges. Moves to pass a Vote, "that the Lieutenant of the Tower shall not carry these prisoners before the Lords, before he has first acquainted the House, and received their direction."
Mr Vaughan.] Now the face of things is altered—The Lords, at this time, taking into their power this House, and the Crown itself. Your Members are taken away from their attendance, and, by combination, they may take most of them, and command your votes how they please. People blush at things at first, but, in time, may encroach boldly upon all—The Lords have made you subordinate, in asking you Questions—Judgment, in the Lords House, upon Petition 39 H. VI. by the Duke of York, did determine the Crown for life, and afterwards to the said Duke—Pray God, no such disposition be intended now!—Your Votes, by these proceedings of the Lords, will have no efficacy—Where Judgment cannot be consequential to a Writ, no Writ can lie—If we are condemned by this Judgment of the Lords, we are of illegality—If we are judged in the Lords House, we may know what that Judgment will be—If in WestminsterHall, that will come before them by Error—It cannot appear to the Judges, till the Warrant be returned, whether to judge, or not—The Lords send a Habeas Corpus, in their own case, to determine a thing unreturnable— The Judges are not free against natural justice. A man is in prison, perhaps a Peer out of Parliament—They must judge him as they please! Suppose a Commoner before them, whether legally or illegally: By this usage by them, you may imagine how he will be used.
Mr Sawyer.] Has waited to see the Warrant from the Lords; he saw a copy of it, and, by that, takes it to be void. The Order is no more than "that the Lord Keeper shall issue out a Writ of Habeas Corpus." There are cases of the Lords issuing out Habeas Corpus—Any privileged person, upon the Habeas Corpus sent, is delivered. For Habeas Corpus ad subjectionem, they are not a Court of ordinary Judicature. He has seen Writs returnable, coram rege et inferiore domo, and superiore domo, and sometimes in pleno parliamento. But, in case of Privilege, the wariest steps you can take—The Lieutenant of the Tower made no steps in it, till he had your direction—If it be a good Writ, you know what you have to do. If a good Writ, then 'tis fit to advise the Lieutenant what return to make to choke that Writ— You should vindicate the Lieutenant of the Tower from the Lords Vote, that he has done according to law; and, in this he is your Member, and has not swerved from his duty.
Serjeant Seys.] His learning never went out of Westminster-Hall—He is no Almanack-maker, to foretell what the Lords would do. Habeas Corpus is a good remediable Writ, to have an account why a man is detained in prison, wherein causa captionis is declared. We must have recourse to practice—What is done in Parliament to such good Patriots as are conversant in Parliament Journals—It must come before us—And be sure the Lords will say, 'tis warrantable—You may expect that the Lieutenant of the Tower will give you an account of them. (At this time we have a Bill depending to prevent delay of delivering of prisoners by Habe as Corpus.) Though you look upon the Lieutenant as an Officer upon your account, yet you know not what other matters may be against the prisoners, to bring them before the Lords upon some other account—if committed.
Mr Garroway.] The Law has not been his way of breeding; but is concerned at the waste of this matter. It strikes at all—He has not heard a dispute of your power to commit these persons, but the question how they shall be discharged, whether by any other power than that which has committed them, being committed for breach of your Privilege. Finds that the Warrant for the Habeas Corpus is directed to the Lord Keeper, who is cautious, and prudent, and will have a care of what he does—Would have you declare, "that persons committed to the Tower for breach of your Privilege, cannot be discharged but by Order from yourselves."
Sir Richard Temple.] He finds there was nothing alleged in the Lords House, but in case of Privilege, by—. Duty of attendance has Privilege the consequence. After the Lords have done this, they are "a supreme Court" to some purpose—The Lords send a Habeas Corpus, and discharge whom they please, committed for breach of your Privilege. We must stop this in the beginning. Would therefore declare, "that any person, committed by Order of this House, cannot be discharged but by the same Order that committed. If done, that 'tis illegal." To extend this Privilege of the Lords to Lawyers, not of attendance, but only to plead (the Lords having declared that you cannot commit any but your Members) this is not only an Injunction, but a supersedeas, to all you do He hopes the Lords protection in their pockets will be no refuge for them. This is the next way to stop all your Privileges. Moves as before.
Mr Sacheverell.] Put the Question, "during Session of Parliament, Writs of Habeas Corpus in such cases not being granted."
Mr Sawyer.] You do but declare as the law is, if you say, "no Court whatsoever can grant Habeas Corpus to persons committed for Privilege, the Parliament sitting."
Serjeant Maynard.] Many things have been said in this matter, and some have been true, and others will not hold. 1 & 2 Ph. and Mary, "No Habeas Corpus shall be issued out, but signed by the Chief Justice." That in case of their own Privileges, the Lords may procure Habeas Corpus, is not denied. Discourses have been general. If the Lords may do it in any one case, you cannot put a general Question. Would therefore confine the resolution to the Debate in Question, "Whether the Lords can grant Habeas Corpus to any person committed by this House for breach of Privilege?" Where a Court has power to grant a Habeas Corpus, 'tis never granted before that Court is informed of the merits of the Cause—If a Court should deliver a prisoner, committed for breach of your Privilege, he knows what would become of them. You cannot judge of the Lords Privileges, nor the Lords of yours. Two things have been named, 1. "That persons committed by Order of this House, cannot be delivered but by Order from this House." That's too large to be passed by vote, but "sedente parliamento" is safe. He has not known, nor does remember, that the Lords have granted Habeas Corpus, but is certain, that, in this case, they cannot deliver the prisoners. Suppose the Parliament dissolved, and not one called again in seven years, and the persons committed, shall they lie seven years by it!You must have justice in delivery, as well as in commitment of them. Unless you could tell what would be done in this, knows not what resolution you can take. He thinks it not a Question you are drawn into by necessity yet.—Remembers that the Lords have granted a supersedeas, but not a Habeas Corpus. The King's Counsel is advised with in the return, which possibly may be imperfect, but will give time to mend it, and knows not why the King's Officer should have recourse to you before he makes return of such a Writ. He has known sometimes where a Habeas Corpus commitment could not be maintained, and the prisoner has been removed. What if you should do so now?
Resolved, That no Person, committed for breach of Privilege, by Order of this House, ought to be discharged, during the Session of Parliament, but by Order [or Warrant] of this House.
Sir Charles Harbord.] No Writ shall impale the person or estate of any Member of this House. The refusal of a Habeas Corpus, and an alias, does not, but a plures does subject him to fine and attachment, which does both. Therefore would have the Lieutenant of the Tower be protected by you, from any farther inconvenience that may arise, by obeying your Order.
Resolved, That the Lieutenant of the Tower, in case he hath received, or shall receive, any Writ, [Warrant,] Order, or Commandment, to remove or deliver, any person, or persons, committed for breach of Privilege, by any Order or Warrant of this House, shall not make any return thereof, or yield any obedience thereunto, before he hath first acquainted this House, and received their Order and Directions how to proceed therein.
[Ordered, That these Resolves be immediately sent to the Lieutenant of the Tower.]