Grey's Debates of the House of Commons: Volume 4. Originally published by T. Becket and P. A. De Hondt, London, 1769.
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Thursday, February 22.
Mr Stockdale.] A commitment of a Bill is, when it wants something. He knows not whether preventing "seamen" going over, is provided for in the Bill. There's a talk of eighty in one ship being taken going for the French service. Whenever such shall be found, would have them tried as felons.
Sir Richard Temple.] Great store of gunners are gone to the French. He would take care in the Bill that they be not totally cut from you, by omitting a convenient time for their return; else, the penalty in the Bill is so high, that they will serve the King of France and never return.
Sir George Downing.] He has enquired particularly upon this noise of so many seamen going over to France, but, upon farther information, he finds that the French forbid taking them into service. That nation being full of people, they will not employ strangers, who may, upon occasion, quit them. For example; suppose that thirty seamen are cast away, and they have no ships nor money to bring them home, and they must come home to their own country at last, but must serve for bread in the mean time;—it would be a hard case that these men should suffer the penalty of this Bill.
Sir Robert Howard.] Perhaps this Bill may make 10,000 traitors that it intended not to be—Perhaps this summer may make them gain another victory. Though this is desirable, this works so great a necessity by putting streights upon men, that if they miss but a day of their return home, they are felons. He does not know they are so estimable in France as 'tis thought they are.
Mr Mallet.] What sort of people are these, that have gone after three warnings by Bills in this House? He is informed that the success of Sicily (fn. 1) was much by the English seamen, and 'tis high time for this Bill.
Mr Stanhope (fn. 2).] These men are starved by ill usage in the French army, and we have had 20,000 slain. Would prevent that.
Mr Secretary Williamson.] 'Tis rare that a Bill should be attended with such a Clause, "That the King cannot pardon the offenders against it." As it will not look well towards your Prince, he would omit that Clause.
Mr Secretary Coventry.] The King has sent orders to seize all English and Irish that have taken out commissions. Would make the Bill against such as shall go against the King's Proclamation, which is grounded on law. That would be a good ground to make applications to the King, on occasion, not to pardon them. This has rarely been done, but in Sir John Coventry's and Lord Clarendon's and those extraordinary cases. Suppose it "Death to return"—And he'll never come home to be hanged. This will make it to serve the King of France more than the sin against the Holy Ghost, "That the King cannot pardon it"—When we ask a person's consent for a thing, we should not affront him that is to give it. When these men went over, 'twas no felony, but a disobedience to the King's Proclamation. Many of these men went over by treaty, and they are impossible to be recalled—What a figure will you make of the King in this thing? Suppose a man in a garrison and he cannot come—But when he does come you'll hang him. The Spanish Ambassador did not declare against any that "were already gone" into that service, but such as for the future "should go"—Would have only in this Bill what the King in honour can pass.
Mr Sawyer.] There is an inevitable necessity for these men to be hanged either in France or here, by this Bill; and when they went over, 'twas no fault in them. They'll stay where they are, or else 'tis immediate death; and so the Act will have no effect.
Sir William Coventry.] A Clause or two in the Bill amiss, is not a sufficient argument to reject it. 'Tis objected, "That the Clause of the King's not pardoning is an unusual Clause." But, possibly, the Committee may find something else which may serve the turn, But if they are upon such terms that they cannot come back, when abroad, capitulations of that nature are always "to return to their King's service when commanded back"—As the Scotch regiment was—Either they have liberty to return, or our fellow subjects are ill used by such a neglect in the capitulation—No man can say, but that the King of France is already too strong, and no Englishman would have him stronger. He cannot believe but that the King of France will let them come back, and not break with England for a matter so inconsiderable. One or two Sessions we have had great Debate about this, and when we gave the last money, we were sorry that France was so great. The next Session we gave no money for that very purpose, but since we went home, what we did was so far from recalling them, that more were sent over. In civil wars there are such animosities that make all men mad. But such a war as this—Nothing can be proposed less a doubt, than that France is too big, and shall we make her bigger?
Mr Vaughan.] The greatest grievance we have is this —And one way of France's growing great is by breaking capitulations. Consider the safety of these persons. This House is not for the King of France, and he'll not favour the English. But he takes exceptions against the King's power of pardoning, for the former reasons.
Mr Williams.] It is no new thing to put such a Clause as this "of the King's not pardoning, &c." into a Bill. In 2 E. III. 14 E. III. he gave pardons for felony, and murder, and then declared, "No offences should be capable of the King's pardon, but what he might do by his coronation oath." This Clause is a necessity for this time, considering the frequency of pardons for crimes; he never saw the like before—But 'tis very necessary now; the law would else be ineffectual. The reason is, he fears there is something too near betwixt us and the King of France. 'Tis said to be hard, because some particular persons may suffer by it. But better that five hundred should suffer than such an inconvenience should be to the nation. We cannot do too much in this matter.
Mr Love.] Sicily being once conquered by the French, not a boat can pass that way without leave of the King of France. De Ruyter was not worsted by the French, but by the English in the French ships (fn. 3). If you let this alone this year, 'twill be too late to remedy it the next.
Sir George Downing.] No Revenue of the King's can be taken away by implicit words—The King's old customs—The last Act of tonnage and poundage—and no other rates but what are in that Act—If you say "none shall be levied but by Act of Parliament," shall the King be debarred of his one shilling per chaldron upon coals?—The prizes and butlerage revenues are at common law.—He knows not whether they be by Act of Parliament—Without an Act of Parliament, the King is cut off from all these Revenues—The 16th book of rates "All duties lawfully heretofore taken at wharfs, &c." But this word "lawfully," is not always from Act of Parliament, but from usage. Though never so lawful now, yet by this Bill they are made illegal without Act of Parliament, and taken away. There is not the third part of necessary provision for levying the Customs by Act, but by judgments in the Exchequer, and by usage. And if the Customs come to be collected otherwise, by this Bill they are declared null, and so all that the Commissioners do will be void—There are many contingent and necessary alterations. If in them no variations are yielded, a thousand honest liege people will be ruined and undone, and what they do be not only void, but illegal—Farther this Bill says, "they shall not only not pay, but withstand"—He knows not the meaning of that word. With such a manner of doing it, and to have such a word, the seamen and bargemen will not only "withstand" the customers, but kill them—Says the officer, "you have stolen custom," and says the seaman, "you are a lying rogue." This word "withstand," will let in all outrages, which such sort of men are too much inclined to already; and all things done, contrary to this Act, must be High Treason. Our ancestors were very circumscribed in words. But all offences against this Bill end in High Treason. These cases happen every day. But there is another exception: A new commodity comes up every day. Says the officer, "'tis such a commodity," says the merchant, "'tis not;" and it comes to a Jury. The law of exportation of corn, if under a quarter, but a groat duty, and in this case a jury must judge. In the case of barilia and pot-ashes. Says the merchant "tis barilia," and pays not the fifth of the duty; potashes twice as much. And if it appears to be barilia, 'tis an illegal imposition—However, upon tryal for life, 'tis whether wilfully levied, or no. In this case the merchant shall only pay his custom, if faulty; and the officer be tried for Treason.
Mr Love.] The words in the Bill are general, and he hopes they will not extend to duties levied by rights of Corporations. As in the factory of Constantino ple, and other occasions to levy money, of that nature. He hopes you mean not to have it extend to such Corporations.
Mr Secretary Coventry.] You put (by this Bill) not the power in the King's sword, but you put the power of "withstanding" into a man before it comes to the King. The Bill says, "he shall not only resist, but call the Constable to assist him"—It may be a bigger power; thus then the Militia—Will you make a Constable judge of what's depending in the Exchequer, as chimney-money, &c? A man is arrested, and he accuses the Bailiff of High Treason. How shall any man know what he is accused of? 'Tis the first time you ever put it into a private man's hand to right himself. The manner of levying Customs by the King of England and the King of France, is different—France by his own will and pleasure, by Edict, may raise what he pleases—England only by law; and, by consequence, trade cannot be so easily regulated between them.
Mr Sacheverell.] Love's objection may be easily provided for; and as for Coventry's "of the Militia," there's not one word, in the Bill, but of the civil officers, who are mentioned. He sees the word "withstand" gives offence, but he'll change it for "resist." 5 Elizabeth, "made lawful to withstand." Henry VI. "lawful to resist the purveyors, &c. who acted by the King's Commission" 18 E. I. 5 E. III. 23 H. VI.
Mr Secretary Williamson.] He knows not the matter of these laws mentioned by Sacheverell; but, by this Bill, you give indifferent power to all mankind to resist any officer—In those laws mentioned, possibly some particular inconvenience was then known. If a coat or a cloak be asked, a man may resist. But when, perhaps, a parish tax is asked by an officer, and alleged to be illegal, a Constable may be thereupon called for, and resistance made, as this Act is penned.
Sir Richard Temple.] If this Bill be restrained to mal tort, or any particular thing, it cannot be too severe to hedge it in with severe penalties. He hopes the Committee may provide against a snare, to entangle every controversy of executions of this law, without Treason.
Mr Williams.] As to the officers, it may be doubtful in the aggressor who is the offender or the person levied upon. But, as this Bill is, 'tis no more than a declaration of the common law; and every Englishman is born a common lawyer. When the law determines the thing, it will justify the man. As when a man distrains illegally, he may justify resistance; but not presently to kill, wound, and beat. But the Bill means "to with-hold the money," as one may do at common law. The Committee may take care of the rest of the particulars in the Bill.
Sir Nicholas Pedley, Serjeant.] The intention of the Bill is excellently good, but he is against those general words. Exceptions confirm the rule. Therefore would not have so large words, and not to make sufficient exceptions. 25 E. I. "A law was made against levying taxes, saving the ancient aids accustomed." In 28 E. I. "desired the savings might be taken away, assuring them from those exceptions."36 E. I. "no saving for casual profits of the King, they might be received"—This went on two years. Then we come to the Petition of Right, where there is "no saving, no gift, loan, tax, shall be levied, unless by Act of Parliament and need"—No exceptions, unless you will enumerate particular cases, and so be puzzled. He hopes the penalty may be mitigated—Many innocent persons may be involved. Therefore be pleased to add such penalties as may be sufficient to deter men, but not to entrap. And would have liberty for persons to have actions to recover, when wronged by great penalties and fines.
Friday, February 23.
Sir John Mallet.] Complains of an Election imposed upon the East India Company, by special directions from the King, to exclude Mr Papillon, and Sir Francis Drake left out of the commission of peace in Devonshire.
Sir Thomas Meres.] Want of liberty of speech is a thing so essential to Parliament, that if there is any want of it, or 'tis impeded, that must be removed—Come we only to discourse this matter, and not to redress things? That is all our power—If the word "consider," be "to offer remedy," then go about to consider, the Order being only so. He has that of freedom of speech, and many other things, to say—But would have no Grievances mentioned, so as to be foiled, without propounding remedies. At the same time that he opens a sore, would pour in balsam.
Sir Thomas Clarges.] The Speaker tells the truth, but not all the truth. At this Committee, trade, property, and law are considered—But this Parliament has had only a cursory Debate of them. Whether you will treat of a redress of them in the House, or not, resolve it. 'Tis said, there are no Grievances but what you have been told of; but there are our foreign alliances, and other things, fit to be redressed.
Sir Thomas Meres.] The standing Committee has power to hear and give their opinion about redress of Grievances—We start many hares, and kill none with effect—But whether redressed in the House, or at the Committee, let us do it effectually.
Sir Thomas Lee.] Generally the Committee of Grievances is for things without doors—But several things he has heard of, as men in custody (upon verbal warrants of messengers) and if Members must make their Grievances known by petition, then 'tis fit to appoint such a Committee as you were upon generally.
Lord Cavendish.] If this was not considered formerly, there was never more need than now. As for alliances, as long as such counsellors remain, they may still pursue such counsels. One Lord we have made Addresses against formerly—Would have the mismanagement of the Treasury considered.
Col. Birch.] Moves to consider how to stick to the old Order—The day is spent, and the Order is entered exceeding short; but would have certain leave from the House to proceed, and you will hear of these and other Grievances.
Mr Powle.] He never observed that Money went on fast, and Grievances slowly, and he fears it now. The ancient Order was for Grievances to precede Supply; but that Order is inverted—Therefore 'tis reasonably moved, to consider redress of them, or appoint a Committee for it; but go which way you will, he expects no great fruit in redress of them.
Mr Papillon.] Mallet's mentioning him, as above, was a great surprize to him. He will not now open that matter, but if called, he will. It was a great trouble to him to have the King's displeasure, but if the matter be examined, it will appear he has not merited it.
Sir John Holman.] Would have taken notice of the reversing a judgment made in the King's Bench, upon an old Statute, in the case of the false return of a Knight for Sufsolk, by the Sheriff. If that be so, every Member may be returned here, as the Sheriffs please, upon the penalty of a small fine in that Statute.
Sir Thomas Clarges.] If such letters from the King to the East India company, forbidding to chuse their governor, be not an invasion of property, he knows not what is. Would have the governor bring these letters, that you may see them.
Mr Sacheverell.] He sees to day what he hoped never to have seen; that after four or five years of malproceedings in Westminster-Hall, Courts of justice are precarious. It seems that Grievances are not big enough to be redressed. The Judges either want judgment or honesty. It is become six ace, or quatre trois, for a cause in those Courts. Would know, whether the Chancery has taken all law into its authority. One single person may alter all the law. He speaks it not reflectively on this Lord Chancellor, but on that Court. And the Judges now having their patents durante bene placito, do as the Court directs. As in one Miller's case. They come to Sir Lionel Jenkins's Ecclesiastical Court, and a letter is sent to him from the King, to direct him which way to give his judgment, and after the letter was read, he gave a judgment pursuant to it. And at the Court, he said "The King was concerned, and he would have no delegates," and has none—And, at Common Law at Derby and Nottingham assizes, one person had paid the duty, and had a discharge in full. The exciseman comes next day to distrain upon him, though he owed nothing. The person brings his action of trover and conversion for the goods. The Judge said "That there was an error in the officer, but unless he countenanced the officer, the King would lose his revenue;" and so he caused the jury to be withdrawn. At Nottingham, he was of the Grand Jury, and a recusant was then presented. Says the Judge, "the indictment shall be drawn, and would have them presented, from sixteen years of age and upwards," though no evidence upon it. The Judge sent them out with the indictment, and the Jury must find that they came not to church, and were all of the age of sixteen years. He told us, "we were a company of fanatics, and would not find a romanist, and we must find six weeks," when three weeks were gone already. And so we went out to find the rest of the time by prophecy. In the action brought by Sir Samuel Barnardiston against the Sheriff of Suffolk, for a false return, the Judge said, "Malfezance, in the action, was pepper, and salt, and nothing;" and tells you it so now, because there's an 100l. damage, and so the Sheriff may return what Member he pleases. If this be so, we all sit here to no purpose. Would therefore first proceed in the Grievances from the Courts of Westminster—Or else we sit here in vain—For in Barnardiston's case, the malfezance signified nothing (though greatly to his damage) and the fine was the punishment only. And would likewise have considered the entitling the King to an administration, without hearing the parties.
Sir John Birkenhead.] Sir Lionel Jenkins is in servitio domini regis, and he cannot now answer for it. 'Tis a great charge upon a Judge to proceed in his court by direction of a letter—Would leave the thing till tomorrow morning for farther enquiry.
Mr Williams.] He never knew, in his eighteen years practice, Westminster-Hall better supplied with Judges, with men of learning, loyalty, and integrity. But, as for the Court of Chancery, 'tis not in in the power of the present Lord Chancellor to alter the rules he has found in that Court. But 'tis very fit for a Committee to enquire and represent it to the House—When an arbitrary decree is made when the matter ought to go to the Jury (he reflects not upon my Lord Chancellor) but this is too common and usual—And in the Exchequer too, which is a Court both of Law and Equity. He was of Counsel for merchants there, where 'tis too common to determine what's black white, and what's white black, which by law ought to be tried by twelve men. As for the particular case of Barnardiston, he cannot say any thing to fact, but he confesses it has lain heavy upon his spirit, and will lie as heavy on the Committee, if they do not represent it to the House. He takes the judgment in the King's-Bench, in that case, to be legal, and the judgment in the ExchequerChamber to be an illegal judgment. An action was brought by Barnerdiston against the Sheriff of Suffolk, "for a false return of a Knight of the Shire, &c." He being chose by the greater number, yet the Sheriff returned Lord Huntingtower, who had the lesser number. And "that the Sheriff did it falsly, maliciously, and with intention to put Barnardiston to charge in prosecuting the Election, and made a double return," which, in truth, occasioned great cost and expence. The cause was tried in the King's-Bench, where he did then wait. It was laid open " falsly and maliciously, &c." and the particular facts were examined, and the Jury found it "falsly, &c. and that he had thereupon expended 800l." and the Jury gave him 800l. damage. It was laboured by that never to be forgotten man, Lord Chief Justice Hale, when moved in arrest of judgment, "the matter (says he) touches the House of Commons, a Parliamentary superior Court, to examine. The Question is above us." Another objection was, that it was a new framed action, never such a one heard of before—And shall we create a precedent? Many a double, many a false return will be made. By the Stat. H. VI. in a false return, an action of debt might be brought, and if remedy at common law, why was this Statute made? After solemn deliberation, Mr Justice Wilde gave opinion for the plaintiff with reasons. Rainsford said, "I am not yet satisfied to give judgment for the plaintiff." Twysden " for the plaintiff." Hale elaborately "for the plaintiff," and so solemnly pronounced. But from whence Mr Soames, the Sheriff of Suffolk, had encouragement to make this return, he shall not say what he has heard, till he be called to do it. A writ of error was then brought to the Exchequer-Chamber, and as he has been particular in the King's-Bench, so he shall be in the Exchequer-Chamber. Lord Chief-Justice Vaughan was not alive when the judgment was reversed, nor Lord Chief Baron Turner. Baron Bertie was not Baron when the judgment was given, but was Judge at the reversal; Baron Lyttleton and Baron Thurland were Judges at the time the judgment was given; Atkins at the judgment and reversal. Wyndham and Ellis were so likewise—It comes to be argued before Lord Chief Justice North, Justices Ellis, Wyndham, Atkins, Thurland, and Bertie. The puisne Judge and was of opinion, that the judgment was erroneous in the King's-Bench, and was for reversal of the judgment. Thurland the same. Ellis departed from them, and was of opinion the judgment was good. Atkins was of opinion it was a legal judgment. All the rest were of opinion the judgment was illegal, and to be reversed. Now the case was before them, how many were for the judgment, and how many against it? Rainsford was not satisfied, so five were certain. That the judgment was well given, Hale, Twysden, Atkins, and Ellis. For the reversal of the judgment, Lord Chief-Justice North, Chief-Baron Montagu, Barons Littletion, Thurland, Bertie, and Wyndham. Here is then the true poize of the case. If you think fit to debate the matter, how proper 'tis for you, he submits to your judgment. The King may make Judges as he pleases, by his Prerogative. But if the common course of Justice be stopped, there's no Question but that 'tis under the controul of the House of Commons. He has stated you the fact, and, when he is called, shall give reasons why this reversal of judgment is illegal, and a Grievance.
Sir Francis Winnington. (fn. 4).] He has been considering, whether he should commit an offence in violating his conscience, in being silent, or venture to speak here, having so little experience in Parliamentary affairs. But his duty to his country calls him to it, and he will never fail to do his duty, let the consequence be what it will. If it should so fall out, that the courts of Westminster should be precarious, as Sacheverell says, the security the Kingdom has to have justice done, will come to nothing. You know, when your doors are shut, who are the expositors of the law—The Judges. The discourse he has heard has mentioned persons and things. Whether the Judges are learned, or fit, you will not call him to give an account of his opinion. No age, since the annals of law, can show more learned men—They that now sit, may vye in learning with former ages. But 'tis not for this Committee to enquire into their learning, but into who does not justice; and 'tis his duty to inform you (he may say) whose lives and fortunes depend, if not on their learning, at least on their integrity. He will say nothing for their integrity, though he believes their integrity. He has practised sixteen years in Westminster-Hall to this day, in Chancery. And thinks it sit to consider of some bounds to be given to that Court; for the person that sits there, though he believes he has a greater share of learning and justice, (though possibly he has not obliged him) yet must be more than a man, that can do all men right there. As to that Court, he has learned it in law-books—In a few years the Chancery is come to that unbounded greatness, that he cannot tell a client the success of his cause. The tryal of twelve men is little in a cause to that by one man. The client has little remedy, and yet 'tis but the opinion of one man. Some Member in this House has received his ruin by it. By the Statute of Westminster, causes are to be tried in the proper County where the lands are of vicinity, and the Jury may find the fact on their knowledge, though they have no evidence; but now 'tis contrary—On conscience, whether fraudulent, or not. The matter arose from Sir William Terringham, whether fraudulent, or not. A Jury of Surry was sent for to try this before the King's Restoration, and there were several tryals by Juries of the country—But another Surry Jury found it, (either by the art of the Counsel, or something that he will not say) fraudulent, though several Juries out of the proper County found it not—And so 'tis in the power of the Lord Chancellor, or Lord Keeper, to send a cause, depending here, into Northumberland to be tried. These things are certainly sit for your consideration. He knows not that this Lord Chancellor has increased any of these instances; but that he found them so. He instances these only for the Grand Committee to take the Chancery into consideration. Barnardiston's case he was a witness of; as great a cause in the consequence of it, as has been in any age—But to make that a Grievance, as to fact, he thought the Jury very secure. Against Soames the Sheriff, seven or eight hundred pounds! He would not have given it, had he been of the Jury, for all the world. When tried by the Jury, 'twas quæstio facti, but when that was over 'twas quæstio juris. 'Twas found " that Soames did it falsely and maliciously, and made return accordingly." Those very Judges that gave their opinion in the King's-Bench, said to the Jury " 'tis your verdict, and not ours; we are shut out in fact, but not in law;" and would do their duty—When found so severely by a Jury, the Law and Court have only the record to look upon. Lord Hale, Twysden, and Waldgrave, gave their opinion that the action would lie, because, as presented on record, it has all the ingredients an action should have, though Rainsford was not of that opinion. No man of Law but will make this probabilis causa. But 'tis hard that it should be a Grievance, that a Judge is no wiser than his companions. In the case of Nevil against Stroud, the same was brought to the Exchequer, but never determined. The like precedent was never known before. In the Statutes of H. VI. H. VII. to punish Sheriffs; imprisonment, and 100l. at the suit of the party—Why is this provided for then in law? What he says, he has abundance of witnesses to make out—Not causa pro amico, as the Civilians call it, for that is knavery—But there was room for any honest or wise man to say it one way or another—But of doing corruptly he knows nothing. As to what has been said of the Judges of Assize, 'tis wholly out of his cognizance—He will rather hold truth than be thought a good arguer. He has told you truth, and let the consequence be what it will.
Mr Sacheverell.] We need two Acts for the Chancery: 1st, That mortgagers may have time of CommonLaw to redeem them; and, 2dly, The nature of trusts— For, as the case now is, sometimes they are by declarations, and sometimes by words—No honest man but has a great task to go through with these trusts in Chancery; as well as the other trouble attending them.
Mr Finch.] As to regulating the Chancery, if there be any token of arbitrary judgment or power of exercising it, 'tis in that Court, and that alone. 'Tis now a great and expensive jurisdiction. The present Lord Chancellor has endeavoured to lessen and restrain it. But as it would be an Act of legislature to extend it, so it would be as much to diminish the power he finds there. He moves to refer this matter to select persons, to enquire, not only into the abuses, but even into the very jurisdiction itself of that Court; and it may be limited by the legislative power, by a Bill.
Serjeant Maynard.] Would have likewise a remedy considered for taking men upon sudden and unadvised promises, and for excessive fees, and corruption of jurors. But as for regulating the Chancery, he would not overload the Bill, which always destroys it. A Motion is made for the Committee to bring in all the Grievances in Chancery, which is he knows not what. He would mend the most material exorbitancies.
Mr Secretary Coventry.] Had not the greatest miscreants in the world the benefit of tryal, to hear what they would say for themselves on record? In all the world 'tis so, and will not you hear that Court on this occasion? That is more inconvenient than all the exorbitancies of the Chancery.
Resolved, That the House be moved to appoint a Committee to bring in a Bill "for redressing and regulating all extraordinary power and jurisdiction exercised by the High Court of Chancery, and other Courts of Enquity, in matters determinable at CommonLaw; which the House agreed to, and ordered Sir Francis Winnington, &c. to bring in such a Bill.