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 8.
Sir John Robinson, Lieutenant of the Tower.] The Black Rod came with an Order to him, from the Lords, to deliver into his hands the gentlemen committed to him by your Order. He has received your Votes, and has them in his hand. (He reads that Vote relating to himself.) About an hour after, Sir George Charnock (fn. 1) brought him four Writs of Habeas Corpus, for the gentlemen in his custody. He has obeyed your Order hitherto, and shall not desist obeying you (fn. 2).
Mr Garroway.] Would do any thing to put a fair character upon the Lieutenant of the Tower, but would do what will conduce to leave him with the fairer character from the King. (He matters not what the Lords do.) Would have the Vote pass in the same Words as that of Sir Samuel Barnardiston.
The Speaker.] Directing his Speech to Sir John Robinson: "You having, like a worthy person, and a trusty Commoner, done your duty, in obeying the Orders of this House, in the name of the Commons, I give you the thanks of the House for it."
Ordered to be entered upon the books (fn. 3).
Sir Thomas Littleton.] All this time having been elapsed, and we having no return of an answer from the Lords, about the last Message for a Conference, to the end we may not fail on our part, would have a Message sent to the Lords, to remind them of it; and, in that interim, the Mace may go into the Hall to require your Members attendance.
Sir Thomas Stringer.] Observes, that there is no Test of the Clerk of the Crown, which ought to be to the Writ. Moves in behalf of the Lieutenant of the Tower, for your direction. The Question was yesterday, to what place the Lieutenant should bring these prisoners, and returns were argued in superiore et inferiore domo, these Writs being returnable coram rege in parliamento.
Mr Sawyer.] The less that is said in this case is the most to your service. Here has not been any Motion made to you for this Writ. He advises that the Lieutenant of the Tower make no return upon this Writ. To show the imperfections of this Writ now, would be to teach the Lords how to mend it. He would let the Lords possess their error.
Mr Sacheverell] Agrees for directions to the Lieutenant. The next process, of course, is an alias, so 'tis time enough for that, which must be pursuant to this. You may be provided for that against the next Writ.
Mr Mallet.] Thinks you have the upper ground of the Lords, the Writ being returnable in a legislative Court. A legislative Power is unconfined, and higher than inferior Courts. It is for the support of the law that you punish these lawyers.
Serjeant Maynard.] What will come of it is not the Question, but what may and ought to come is proper to be considered. If no return be made to an alias, that requires no more than the first Writ; the third Writ is a plures, quare mandatum tibi directum non sit executum, and upon refusal the Warden of the Tower is fined.
Sir John Otway.] Here is the Great Seal to these Writs, and should no return be made, it would be of great consequence, and therefore desires some persons to consider of it, and report their judgments. (All the rest was yesterday's arguments.)
Mr Attorney Montagu.] The Writ is unprecedented. There never was such a Writ before. The Courts out of which the Habeas Corpus comes, have Seals of their own. Though the Writ is not legal, yet it is under the King's Seal. The place the Writ is returnable to is not sitting, viz. the Lords House. They are risen, and gone—If, by way of bail, or fine, it must be estreated in the Exchequer, and believes they will not judge it there.
Sir Thomas Clarges.] If a Seal be illegal, they say below stairs, the King is deceived in his Grant, and it is voided, and no disrespect to the King by it.—But, in this case, would give directions. The Lord Keeper has no Power to grant a Writ, that was never in practice, and he would have a Committee to enquire into the precedents of this matter. If in one case,—They bring in all the causes of England before the Lords upon detainer, and he believes you will not scruple to call the Lord Keeper to an account for this, as an affront to you, to direct the Writ to the Lieutenant of the Tower; he having a Deputy, it ought to be directed to him. To call the Lieutenant's attendance from this House, is a breach of Privilege.
Sir Richard Temple.] No man can show a precedent of a Writ from either House. You send either the Mace, or Assistants of the Chancery. As to sending Habeas Corpus, this is such a proceeding as strikes at the root of Parliament. Can we be made a party to show cause, at the Bar, of this commitment? The last Writ of the three is, "to show cause why he does not execute the Writ."
Colonel Birch.] He hears of great errors in this Writ, but it is said, "to speak of them would be to make the Lords mend them." But, he thinks, there is no such Writ. One place is yet penetrable, and that is, by Conference, and rather than stay for a plures, would go upon it now. If this Writ be not Breach of Privilege, he knows not what is.—'Tis an unusual Writ, and if there be no precedent for it, a greater fault than before. Would debate these things at a Conference, and send for it.
Sir Thomas Lee.] Understands not the nature of these Writs, but looks not so much upon the Writ as the Privilege. How can the Lords take cognizance of this? —A new invention to keep people in prison! The Lord Keeper has great interest with the Peers, and he sends these Writs. He fears that Westminster-Hall will scarce dare to judge these Writs, and then what will be the case of you or I, if the Parliament were up, and another Parliament were to be, to them that are not of it? To say, "that the lawyers are committed by you appears not yet, because there is no return made by the Lieutenant" A fine way of the Lords to judge of any man's liberty whatsoever! Would have the Long Robe consider of this till to-morrow, and you to take care for the future, at the Lord Keeper's, that these Writs may be for ever stopped, and that all may be buried at this time.
Mr. Garroway.] As long as the Lieutenant can take his measures upon the Debate, would assert your Rights as high as any man, and is satisfied the Lieutenant can make no return of the Writs.—And then some particular instructions may be given him to carry himself for the future.
Sir Nicholas Pedley.] 'Tis not for your service to appoint a Committee. 'Tis a thing not merely of discourse, but must be made out by search, and the Long Robe may better serve you by particularly informing themselves about these Writs.
Sir Thomas Lee.] You make the Long Robe to be a particular Committee, and to report their opinion tomorrow morning. If it be left general, 'tis every man's work, and no man's work, and so nothing done.
Mr Garroway.] There will be nothing of reflection or dishonour, to the Lord Keeper, in sending to him. You have done things of this nature. Possibly this may have been done with some irregularity, and none but the Lord Keeper can inform you of it.
Mr Secretary Coventry.] If the Lords Journal may be commanded not to be shown, and you cannot have an account of this Writ there, they may command the Lord Keeper, being their Member, not to declare any thing.
Sir Thomas Meres.] 'Tis intended to send to him as Lord Keeper—For all Lord Keepers are not Members of that House, and no doubt the Lord Keeper has an Order to justify him. Would have the Vote conditional, "in case the Journals will not be shown, then to go to the Lord Keeper."
Sir Edward Baynton.] The Lords Journal is never desired to be shown, but on the last occasions. The Minutes were not entered, and therefore you could not see it. You may leave it in the power of the Committee, to go to the Lord Keeper, or not.
Sir Thomas Lee.] Though in truth he was not denied sight of the Journal, yet it was excused, because it would not be ready by the Lords sitting. When the whole matter appears, you may send a supersedeas to these Writs.
Wednesday, June 9.
Sir Thomas Clarges reports the Search of the Lords Journal, and Clerk of the Crown's Office, for Writs of Habeas Corpus. There was a Writ of Habeas Corpus in Queen Elizabeth's and King Jame's time. But none granted but in case of Privilege, expressing the several names of the Peers, in whose cases they were. Some are returnable coram rege in parliamento; some coram superiore domo. There are Warrants from the Speaker in the case of Shirley and Turner, sent out to Sir ——Carew, all returnable in præsenti parliamento. Many ancient books of returns were not in the Clerk of the Crown's Office.
Resolved, 1. That no Commoner [of England,] committed by Order or Warrant of the House of Commons, for Breach of Privilege, or Contempt of that House, ought, without Order of that House, to be, by any Writ of Habeas Corpus, or other authority whatsoever, made to appear, and answer, and do, and receive a determination in the House of Peers, during that Session of Parliament, wherein such person was so committed.
2. That the Order of the House of Peers, for the issuing out of Writs of Habeas Corpus, concerning Serjeant Pemberton, &c. is insufficient and illegal; for that it is general, and expresses no particular cause of Privilege; and commands the [King's] Great Seal to be put to Writs not returnable before the [said] House of Peers.
4. That a Message be sent to the Lords, to acquaint them, that Serjeant Pemberton, &c. were committed, by Order and Warrant of this House, for Breach of Privilege, [and contempt of the authority] of this House.
" I called this Session for the settlement of Religion and Property, and no endeavour of mine hath any way been wanting to it. I have interposed no business of my own, and have continued this Session much longer than I intended, for the settlement of the kingdom, and did intend this an Adjournment, for the preservation of the good and wholesome laws that have had such a progress already. But the malice of our enemies hath raised so great differences betwixt the two Houses of Parliament, that I can find no expedient for the composing of them, but a Prorogation, which I very unwillingly make use of. I shall meet you here again in winter, and I hope you will take so great care of the Public, as not to seek new differences, nor to revive the old."