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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Tuesday, November 16.
Debate on Sir Edmund Jennings, a Member of the House, being made High Sheriff of the County of York.
Sir Scroope Howe moved the House in it.
Sir Nicholas Carew.] If a Sheriff of a County plead privilege, he may obstruct the justice of that whole County, and no man can have remedy against him. Would have you vote, that it is a breach of privilege to be made a Sheriff, &c. thereby withdrawing his attendance from his service here.
Sir Charles Wheeler.] If there be a voluntary acceptance of the office, what breach of privilege is it? You have never exercised your authority against absent Members. A hundred men of the House are away, and why you should fall upon one Member, and not all the rest that are absent, knows no reason.
Mr Waller.] 'Tis something to want half our Knights of the Shire. About forty years ago there was made Sheriff a great father of the law, Sir Edward Coke, because he should not help us here. One was made Sheriff (fn. 1), and sat here, and was fined in the Star-Chamber for going out of his County—They cannot sit here because they cannot come out of their County. They may make the Speaker Sheriff.
Sir Robert Carr.] He thinks the King has not broken your privilege, though possibly 'tis construed so without doors. Sheriffs have sat in Parliament. If you make an Address to the King for prevention of it for the future, he gives his consent.
Mr Sacheverell.] The constitution of Sheriff, and how made so—The law stands expressly, that the Sheriff is to be nominated, at such a time, in the Exchequer. In the next place, all actions brought against a Sheriff are personal, for the money he receives, and his executors are not liable to make account. A Sheriff shall receive all moneys upon executions, &c. and the Parliament sits, he pleads his Privilege, and cannot be brought to account. Would therefore address the King to supersede this writ, &c. and vote this a breach of Privilege.
Mr Wild.] There are three names sent to the King from the Exchequer, and he sets aside, and chuses, whom he pleases. Put the case that there should be a new Parliament; a Sheriff in one County may be chosen in another. But it seems, when it serves one turn, it is one thing, and then another—Because this Parliament has lasted fifteen years, shall it continue fifteen more? This Parliament is made such a precedent, that we are like to have no more so long again.
Sir William Coventry.] Speaks out of no prejudice to this Gentleman that is appointed Sheriff for Yorkshire. Hears it said, "that precedents, if there have been any, not taken notice of, do not fortify the right;" but, if at any time, would now make an end of them. Would now address only to claim our right, and no more. 'Tis said, "the Gentleman is willing to accept the office," and must we therefore give away our Privilege? Fagg's case, he thought good in the Lords House, and therefore he appeared there, but you sent him to the Tower for breach of your Privilege. 'Tis said often here, that we cannot give away the Privilege of any man; the reason given, "about executions, &c." convinces him. The King enters not into a nice disquisition of their being Parliament men—If one be made, fifty may be made, and so fifty settled in the Country, and he need not tell you how fifty Votes would have carried things as they are not now carried. This of pricking Members Sheriffs, and the letters sent to gentlemen, may tend all to the same end—So it concerns the Parliament, that you leave not the gap open, to root up all your Privileges. Whether the Parliament be longer or shorter, there will be so many absent, Sheriffs—And when the Parliament set to work about any thing, 'tis quickly done. From these considerations, moves that you will prevent this for the future, not barely by a petition, but your right annexed to it. If you address the King only by petition, it may possibly not be granted, and so your right be precluded for ever.
Sir Thomas Lee.] He agrees with Sir John Hanmer, that 'tis below the honour of the House to fall on one man. The sending Fagg to the Tower was not falling on one man. The Privilege of the whole House was concerned in it. To argue from the custom of pricking Sheriffs, which is but a respect to the King — He pretends not to be knowing in the law, but has heard that a pocket Sheriff is traversable, and he believes the law will be found so. If one may be dispensed with to be out of the County, possibly another man may not. Would therefore desire a supersedeas of this writ—This once stopped, it will appear for the future in this, as in any other case, and put the Question.
Mr Sawyer.] 'Tis strange, at this time of the day, to declare this a breach of Privilege; it has been practised in all times. The ancient choice of Sheriffs was at the Coroner's court, but 'tis now settled by Statute, and the Exchequer returns three, and the King pricks one, —Now to say the King has broken your Privileges, after so many precedents!—In Sir Edward Coke's case, it was never thought a breach of Privilege—The House ordered his attendance, and his attendance is upon the Kingdom here, which supersedes the service of the County, and is an excuse in law for not residing in the County, till you declared it otherwise. One was fined (fn. 2) in the Star-Chamber, for sitting here when Sheriff—There is no other true ground of exception, but that you cannot have his service here. The Sheriff's office, if of great trust, is not a Justice's of the Peace also, and a Deputy-Lieutenant, an office of trust, in the same degree? Must all your Members be turned off that are in such offices? Though they are bound to attend their offices, yet they are bound to attend the Kingdom in the first place. If you go on the beneficial ground of the office, then no Member shall have one. 'Tis said, "the Sheriff may defraud by pleading Privilege in matters of execution," and "that his executors are not liable to an action." 'Tis true, in an escape, but the law is plain, that, where the Sheriff levies money, his executors are liable to an action. Now, there having been usage to the contrary, and that the thing will run into all other offices, as well as Sheriff, moves not to make an Address to the King about it.
Mr Vaughan.] Sawyer argues very well, but his reasons must be well fortified to argue against Privilege of Parliament. But by being Sheriff, a man must be in two places at one time, and you fine him here for his absence. 'Tis said, by Sawyer, "that his executors are liable to account," but the Sheriff may be in this House, and the creditor's wife and family ruined. 'Tis said, "this precedent will go hard upon one gentleman." It is so, but would have it otherwise for the future.
Mr Williams.] The office of a Sheriff differs now from what it was anciently. It has been said, "if you declare this a breach of Privilege, you declare the King has broken your Privilege"—We know that ordinarily the Sheriffs are presented in the Exchequer, by the Judges, to the Lord Treasurer and the Lord Keeper, and then the King pricks them, and perhaps he knows him not to be a Member of Parliament. The great ministers are the men that must inform him of it, and they must answer it especially. A breach is out of the nature of Privilege, and why are we exempted from WestminsterHall, but because Members are not to be disturbed, but attend the weighty affairs of the nation? Men cannot be imagined to be in the County, and attend the weighty affairs of this House—Says one, "the consent of parties is in the case, and consensus tollit errorem." But 'tis the House that is concerned, and must consent to it, and he should be questioned for pleading at the Lords Bar without leave. 'Tis said, "that many Members have been Sheriffs," and therefore 'tis high time to stop it. First settle the thing on breach of Privilege.
Sir Charles Harbord.] 'Tis no breach of Privilege at all, the thing has been usually done, and always so done. He thinks it true that no Member can be absent without leave of the House. Suppose the Sheriff should put the King's money into his own purse, the consequence is, the King indicts the party. The King makes a man Sheriff, and he is then chosen a Parliamentman, and he cannot attend the business of the County to pay the money according to his writs—And persons escape—He thinks it a wife and a good counsel, that for the time to come this be not drawn into precedent, and to move the King so. In 9 and 10 Edw. II. chap. 9. There are directions for the choice of Sheriffs, and in the 7th chap. we read not a word of the King's pricking Sheriffs.
Mr Streete.] 'Tis the resolution of the Judges, that this law mentioned does not deprive the King of his sovereign power, but only eases him of the trouble and labour. The day after All-souls, the King may prick Sheriffs without them. Queen Elizabeth, King James, and the late King, have pricked Sheriffs. It was not the opinion of the House in the case of Sir Edward Coke. Look on your own books, and you will find, in that case, the opinion of the House "that a Sheriff of one County may be elected to serve for another, and the Sheriff of his County may be returned for a Borough in the same County," and some now sit so. 'Twas never thought but a Sheriff may be here, and it disables him not to attend his service. There are four of your Members that have served, this Parliament, for that County we now debate.
Sir Thomas Meres.] Coke's case was nothing to this now in debate, and to clear that repeats the Question —"Care of our Privileges." The making a Member of this House Sheriff is a breach of the Privilege of this House. This case comes not up to the other. This case is, the House sitting, to make a Member Sheriff of a County; and all that is said against it is, "That we have some sit here that have been Sheriffs of that County." But if the thing has been once or twice done, and therefore must be a precedent, then, by the same reason, the Lords may try your Members, because it has been once or twice done. 'Tis said, "That 'tis as fit Members should be Sheriffs, as Justices of the Peace." If that be the case, we may all be made Sheriffs. If it be as equal to make us Sheriffs as Justices, perhaps forty or fifty may be made Sheriffs hereafter—He lets it go to help the Question, that we may be made as well Sheriffs as Justices of the Peace— Did ever any man yet make a voluntary answer to a suit in Westminster-Hall, and it came to your knowledge, that ever you passed it over? And so in this case now. Though the case be far different between WestminsterHall and Fagg's case; for the Judges say, "you may go on if you will," and take no farther notice. But the Lords say, "No, though you tell us you are a Member, yet you shall appear." Shows you this only, how little a step the Lords may take advantage of—And now tis spoken of here, if not complained of, it may be a precedent.
Mr Powle.] The arguments of the Gentleman of the Long Robe (Sawyer) go clearly to make every man here Sheriff. "Ita quod nec tu, &c." "Neither yourself, nor any other Sheriff shall be elected, or returned to serve, &c." Examine the reason of this law. 'Tis from the great trust which requires necessary residence in the County. Anciently the Sheriff of a County was equal to a Lord Lieutenant. He had absolute command over the military power, the posse comitatus; and has the executive part of the law. Anciently Justices, and Deputy-Lieutenants, were strictly to be present upon the place; but there are others in the County now, that may perform that office. The Sheriff cannot have any to perform his. So that the Counties are either deprived of an officer, or the House of a Member.—3 Cha. Mr Long (fn. 3) was Sheriff of a County before the Parliament, and he was chosen for Bath, and attended in Parliament, and was fined 500l. in the Star-Chamber for non residence in the County. The precedents are mistaken. Lord Coke comes nothing to this case. 1 Charles. The Duke of Buckingham was questioned and impeached, and that Parliament was abruptly broken up at Oxford. 2 Charles. The same Duke, to prevent Coke's and other gentlemen's being against him in this House, made them Sheriffs, and the Parliament took notice of it in a remonstrance. Those very gentlemen sat not, and Coke in particular did not, for the very reason of being fined, He has a respect for this gentleman, (Jennings) but if you do nothing in this, you give up the right of the thing for ever. The Customs have been granted to the Kings of England for life, these three ages, and never to be a precedent; yet they have been for most of the Kings lives but the last. 'Tis said "this is putting breach of Privilege upon the King", which is mistaken. The Statute directs the chief officers of state to nominate three for Sheriffs. He will not define Prerogative, how the King may prick Sheriffs without it. If the Sheriff be not responsible, respondeat superior, and 'tis construed the County is superior to the Sheriff. The King therefore chuses now, that the County be not responsible for the Sheriff. The King takes it for granted that his officers will not nominate to him persons not fit to serve in that office; therefore moves as before.
Sir John Duncombe.] He thinks this hard upon this gentleman (Jennings) who only pursues those who have been before him. He was one of the three brought to the King. The thing has been done three or four times in this House, and not controverted, and 'twas thought this gentleman might be Sheriff as well as those before him—Unfortunate at this time—As to the inconvenience—The practice is, a man out of his County, and now chosen Sheriff that lives not in his County, to support hospitality, because he is brought hither to live here in the town, and have no charges on him. You were told it was once an office of profit—Though the image be left, the substance is gone. In all times there were dispensations granted to Sheriffs to live out of their County—And now the Sheriffs have deputies and attorneys. You have declared there is no Privilege against the King, and no man to be protected for his debt. But if the Sheriff levy money on the subject, how shall he get his money if he be a Parliament-man? This is an inconvenience he knows not how to get off, but by beseeching the King that this may be so no more.
Sir Winston Churchill.] He agrees to the inconvenience of it, but thinks it not a breach of Privilege. Put the case that another man's cattle make a trespass upon him, and eat up his grass, but if the gaps or gates be left open, 'tis his fault. This is no trespass, but our fault. Before you vote it a breach of Privilege, would be satisfied whether the King taking somewhat that is not his right—To prick a Sheriff—If that be not the point, it has respect to your Member only. In his case, he should think it hard and reflective that he only should be the man excepted. Not a Yorkshire gentleman has yet offered any thing against it—Too light a thing on half an hour's Debate to jump into a breach of Privilege—The Lords will cast it upon us. Suppose you should be told and convinced hereafter, that 'tis no breach of Privilege —Would not have this fastened as an article on the Lord Treasurer, when so many have been wiped off, brought in by a side-wind—That the Treasurer broke the Privilege of this House, ex post facto. (He broke off abruptly, and was laughed at by many.)
Mr Leveson Gower.] This is not only an inconvenience, but a breach of Privilege—For a person, before the Parliament sat, has deserved it, and now he is a Member not suffered to be Sheriff. Four Members have served Sheriffs for this County, therefore would have let the Question be only general, and favour this Gentleman so far now, as not to put the Question upon him.
Col. Birch.] Is afraid to speak to you in this matter, left, if any gentleman should say here we fly in the King's face, he may tell the King so. He can never believe that the same men were called up in three Parliaments in Edw. III's time, (In H. IV's time lawyers were excluded.) But 'tis said, Why a breach of Privilege at this time, and in this case, and never so before? He is apt to think that things have been done here that will never be done again. Such sums, he believes, any man would be laughed at, that should move for them again. He sees but few (fn. 4) in the House now that have had that mark of favour to be Sheriffs of Yorkshire. Why now do you say that the Lords shall take a Member from his attendance to their Bar? But you say a Member for a year may be Sheriffs of Yorkshire—And say nothing to that. The argument will go against you, if you take this resolution. A learned gentleman (Sawyer) told you, "go to the bottom," but he was not at the bottom. He agrees that the King may make an Ambassador, and he tells you Sheriffs have been made, and of this House afterwards—But he supposes the House will not much care for their company—You would have heard of it before. Three or four may be sent into foreign service, but scores may be made Sheriffs, and things might have gone another way. Would do the thing easily—It cannot reflect upon the King, and is far from thinking on a Minister of State. But in the best Prince's time would provide for the worst of things, and whether the zeal of us here will continue to send for them up, he knows not; therefore he is for the Question.
Mr Sacheverell.] Sir Richard Pemberton's case, who refused to go into Ireland, and though it be in the King's dominions, was not fined. He denies that the King has any power to prick Sheriffs. Sir Richard Tempest's case, Sheriff of Lincoln, he was not fined for refusing to be Sheriff, because he was not nominated within the time of the Statute, but he held it by appointment, and the King gave him all the fines and amercements, and other perquisites, to hold the place. If you let this go without supersedeas, 'tis giving up the cause.
Sir George Downing.] This is a breach of Privilege, and the party concerned makes no complaint. 'Tis taken up by other gentlemen, and not the party concerned. You are going to vote, That making a Member Sheriff is a breach of Privilege, and you never saw any thing to the contrary, but that he might, &c. There is no Question yet stated. Some say, "The King has broken the Privilege," without any farther ceremony. Shall not a Committee first examine it? In far less things than this we go by steps. Let records be searched first. He will else never vote it. He will have his tongue out of his head before he will do it.
Sir William Coventry.] That which raises him, is, That he would not have that thought the Question, that is not the Question; "That the King has broken our Privileges." The whole Debate was, that the King never had, nor did break our privilege.
Mr Hale.] The business depending has passed silently over formerly; shall we say, therefore, that Privilege is not broken in the case of Fagg?
Sir Henry Capel.] You have been told what the case was in the late Duke of Buckingham's time. Should it happen ever again, that letters should be sent for Members, and they have them not, and Sheriffs kept from hence—Who can then sit here?—If so, let us go on with the Bill of money, and other things, and lay aside the difference between the Lords and us—He rather would not have this Gentleman made a precedent, but he thinks himself beholden to him for being the occasion of this Debate. If the Question be of Privilege, he must give his Vote for it.
Mr Bennet.] As to trespass spoken of, 'tis time now to mend the hedge, and shut up the gate. He hopes Jennings will not suffer so much by it, there will be found somebody to officiate it, and he to have the best share of the profits—And that we are so fond of him, we will not part with him.
Sir Edward Dering.] It concerns not him to answer whether Jennings serve here, or in his County. Let the gentlemen concerned look to that, before he takes the office upon him. The danger of making one Sheriff that is a Member, and the consequence of making many, is but a remote reason, and weighs not with him —We have had three or four Members Sheriffs of that County, and no complaint made of it. The DeputySheriffs do give security for performance of the office— In all cases, would have the King treated with all reverence, and in this most tenderly—Would, therefore, only address the King, "That, for the future, no Member of the House be made Sheriff."
Sir Thomas Littleton.] By this means we strike off half our Privileges; for writs of Privilege a man can only have when the suit is begun. It is moved to temper the business—Is sorry for the Member concerned, for whom he has a respect; but, if you proceed no farther than an Address to the King, "That it shall be so no more for the future," you give up the cause. For he has observed, that when a thing has been voted to be no precedent, for the future, it proves often to be a precedent to do the same thing again.
Sir Henry Goodrick.] Hears it said, "that few, or none, of Jennings's countrymen are concerned in this matter." Though he has been silent in the thing out of modesty, is concerned as a reflection on his person, and reputation, which he would have so saved, as that the House may attain their end—We all conclude for proceeding, by way of Address to the King, and would have it in as home terms as you can invent. Pricking of Members Sheriffs, you find an encroachment on Privilege—Moves therefore that the Address to the King be "not to prick any Member that serves for County, City, or Borough."
The Speaker.] Upon some disorder said, If any man have a Privilege to be disorderly, let me know it.
Sir Philip Warwick.] We may have many Privileges started up at this rate, that we know not of. If the Gentleman was the case only, he would say, it is as fit for him as another to be Sheriff. 'Tis one thing to vote the King has done you a wrong, and another to address, &c. As to the convenience, he agrees—But that this is not the first Question, but the second.
The Speaker, said jeeringly to Sir Richard Temple.] To your place, Sir. I shall be thought partial if I let you stand there—Then he proposed the Question, viz.—"That 'tis a breach of Privilege for any Member to be made Sheriff, &c. during continuance of Parliament."
Sir Lionel Jenkins.] Doing a thing illegal—Knows not how to be so, till declared and proved so.
Mr Streete.] Offering these words to the Question, "without his will and consent," 'twas concluded regular to offer words of addition to a Question. But when the previous Question is put, and passed, no man can say any thing to the main question.
Mr Sacheverell.] Moves that the Lord Keeper be sent to, to supersede Jennings's commission of Sheriff.
[The main Question was then put, and passed, 157 to 101.]
And a Committee was appointed to consider of a proper way of superseding the Commission, and discharging the Sheriff from his office.
Wednesday, November 17.
[Debate on Sir John Fagg's case resumed.]
Sir John Holland.] This unfortunate difference between the Lords and us must render this, and all other Parliaments, useless to the Kingdom, and shake the foundations of the government, if not made up. Therefore, in a Conference, would represent to the Lords these good Bills upon our hands, of our Religion, Liberties, and Properties, and enumerate them, and that we will speed them, and desire the Lords to do it, and, for the present, to lay aside this their Judicature, and we will our Privileges, and, when that's done, that by Conference we may convince one another amicably.
Mr Waller.] We have a great many good things in prospect, and we have hopes of our Religion, Properties, and defence of the Nation, and all these hopeful fruits to be shaken down by the storm betwixt us and the Lords!—He will show you experience by the glass of experience. In his time fell out the breach of three or four Parliaments, and the late King was persuaded to set forth a Declaration, which was shrewdly penned. So that the King could make no use of Parliament for nine years, and he was so long without one, and might have been still, but for the business of Scotland, which caused many fears. There wanted not counsellors then to advise an arbitrary government; there were monopolies, and imprisonments, and such judgments upon it —None feared a Parliament—They judged us here for speaking. If the Government be so spoiled, that the King cannot govern—The Crown is the most ancient portion of the Government, and the Lords are immediately from the Crown. The Commons sit here by writ; at this rate here may be none but the Crown, and the people left to govern. Therefore he seconds the motion for a Conference, to lay aside this difference, till our good Bills be ended.
Mr Boscawen.] The matter is of great moment. He would not give the first cause, nor provoke the Lords to do an unjust thing. He thinks that if this concerned our Member only, 'tis not so great as 'tis made to be—Consider, first, whether you have reason to retract what you have done. That which will do you right, will be to keep your Privileges—And would lay to heart, whether really you have a right to what you pretend to, and then not to postpone it by a kind of submission to the Lords.
Sir Jonathan Trelawney.] You move for Conference, which is a kind of retracting.
Sir Thomas Littleton.] The argument of this intended Conference is from the danger of no Parliaments; but that's a dangerous argument to use here, and much more to use it to the Lords—Wishes it were not insisted upon—Time is a great mollifyer of things, and twenty things may happen to predispose mens minds. He that discovers fear in all matters of consequence, has usually the worst of the business.
Mr Secretary Coventry.] Hears a Conference proposed to postpone this difference betwixt the Lords and us, and there has, without doubt, as Littleton says, been a spirit of moderation amongst the Lords as well as here. What we are told, "of the example of the late King's time," by Waller, is of great consequence. If the ill be not cured, whatever you postpone—If arbitrary Government be the consequence, you cannot help it; and whether 'tis not better to have a Conference with the Lords upon the main point, than postponing it? Consider, when that's done, whether you will not return to your former heat. He never heard that a cessation of treaty promoted peace; but when you make a truce, and no treaty, the war comes on afterwards more hardly upon you. He moves therefore for a Conference, to discover the Lords temper, but, upon the first advance of Conference, to make the step moved for by Holland is too dangerous, he fears, to attain your end.
Col. Birch.] You are moved by one to assert your rights, and, by another, you are moved to postpone the matter in difference. Though, it is said, the consequences of this breach are such as are not fit to be named here, yet this business will be judged by all the people of England. There is great notice taken where the quarrel stands, and he would sweep it from our doors. He would not lose your right, but would do all things in the best of time. Would first, therefore, show the King our obedience and duty to his desires, to stretch it as far as we can; and next, would let the Kingdom see—Suppose Prorogation, something must be resolved on—Therefore some Gentlemen may think it some condescension, but he thinks it not so. For when you lay it before the Lords, we do our duty to the King and Kingdom, to give dispatch to the public business. Therefore that some time may be appointed for the great business, he desires a Conference.
Mr Sacheverell.] He is as much for these Bills depending as any man, yet, if you take not great care, and move as Birch says, it will look as if you never intend to meet again. If the matter be such as never to be reconciled, he appeals, if it be not be the best way to try the difference first, and then go on with the Bills. If you go on singly upon this point of Privilege, he can never agree to it. If you ask time for all these Bills to pass, 'tis reasonable for the Lords to say, That you tie up their hands; therefore, first resolve to assert your right, "That no Appeal can be brought to the Lords from any court of Equity."
Sir Thomas Lee.] Is of opinion, that the way to get your right, is to assert it. He inclines not to go into the merits immediately by Conference. The Lords may be as fond of their Bills, as you of yours; but, if you postpone the difference, without asserting your right, you give them no reason to postpone, and no reason to put off the cause. They have asserted their right upon the same bottom they left it; therefore it concerns you to follow your opinion too, of the last Session. He finds this right asserted by the Lords, not only upon your Member, but the whole people. He thinks, that, in this case, the Lords wrong the King. The Lords sit for themselves, and act for themselves. This House acts for others, and here may be various alterations of men. Therefore he is not for coolness in asserting your right, but for the necessary preservation of the Kingdom. That these ships may be built, and religion settled—Possibly, the Lords may incline to wave this dispute for a time, and neither side to give up the point.
Mr Sawyer.] Here have been several motions, but cannot almost agree to any of them. He is against postponing, or adjourning—Never to strike at the root of the business, and such remedies are worse than the disease. The last Session you took time to consider the Lords jurisdiction, and found they had none, and so you passed the Vote. All are agreed, 'tis a breach of Privilege to summon a Member, and so you have declared it—There is something that must be done, and that immediately, and by way of Conference, but what proposition to make, is the Question.—Not barely touching Fagg, for the Lords will laugh at it—But this House taking notice 'tis a breach of Privilege—If this was a new cause, would say no more; but the case is altered; for we say, here has been Prorogation, and 'twas necessary to take off the present difference—These points of jurisdiction the Lords will never depart from. In King James's time, there was a difference between the two Houses, and agreed by protestation, and 'twas entered, "That the proceedings in that cause were no prejudice to either House." But, in this cause, 'tis impossible to make any compromise, by any protestation or saving. After all, we must end, "that 'tis fit an Appeal be somewhere, that one single person in the Chancery may not have the disposing of inheritances." When we do it in a legislative way, we are all pleased. Now, consider how this may be done—Offers his opinion, that this matter may be proceeded upon by a Committee of both Houses, to settle the legislative power in this judicature, and then the Commons having asserted their rights, that they be inclined to the settlement of the legislative way, and proceed no farther. Thus you accomplish all your ends, and open a way of quiet to future Parliaments—For there was never such a step in any age; and this is his advice.
Mr Vaughan.] He has formerly sufficiently expressed himself in this business 'Tis in vain your Address to your Prince, when the Lords latitude of jurisdiction must interpret your laws—You have before you now Bills to establish Religion, and to stop the inundation of Popery, ready to overwhelm us. We have Bills to indear the King to his people, and to recommend yourselves to them. Is sorry the people should have no fruit of this Session, but discourse of our difference —Before you now subject the matter of your Message —He thinks we may fight the Lords at their own weapons. The last Session, the Lords sent you a Message of a Conference they desired, "about the safety of King and Kingdom, &c." and much of that stuff— What he disliked in that he does detest here, your honour being his object—But—"Message of concern to the Kingdom, and safety of the People"—Till you assert your right, good reason to tell the Lords you have Bills—If the Lords can deny this, you justify yourselves to the people, and that the Lords are fonder of power, than the public good.
Sir Thomas Meres.] Here have been several motions —That motion, in order to a Committee of Lords and Commons, is so far agreed, as that the Lords will let us have our hats on. He has sat so with them. Which way soever you go, gentlemen, desires you to renew your Vote—Go which way you will, he would have you act for the Commons of England. (He reads the Vote "of no Appeals, &c.") But, at present, to defend the thing of Privilege. 'Tis discretion, in this matter, to have the Commons of England on our side. The Lords told us, "'twas an unexampled usurpation, &c." —Is there any reasoning in this? 'Tis all authoritatively from the Lords. Upon the whole, would have this previous Vote, "that no Appeals do lie from Courts of Equity, &c." For this main reason, to have the Commons of England go along with us.
Sir Charles Harbord.] He takes this of the Lords to be a new Judicature, and it has not the badge of prescription on it. Next, 'tis no failure of justice if we admit it not generally on our Member. Loftus and Strafford, the great cause at the Council table. 'Twas then determined, "that the King, in case of an Appeal of injustice, might issue a Commission of Appeal, and they judge it"—And that's final in Ecclesiastical Courts, and, if so in Chancery, no failure of justice. Would not go to war without your armour on. Would have this Question first, "to assert your right," and then go on with Conference. Possibly, then, an expedient may be found out, either of a Committee of both Houses, or some other way.
Mr Garroway.] First pass your Vote, "That the Lords have no Appeals, &c." Else, as has been said very well, 'tis a begging Privilege which avers the Judicature—Suppose, after all applications to the Lords, they will not agree with us—What then? If they give judgment against your Member, there must be execution, and then what are you the better? If you assert the common right in the thing, they will never execute judgment.
Sir Charles Harbord.] On his recollection, the Lords have had, anciently, writs of errors, which do not judge the merits of the cause, but only defect of proceedings. These Appeals of equity subvert the whole course of the law.
Serjeant Seys.] 20 Edw. III. fol. 3.—Writ of Error in Parliament, on a judgment in the King's Bench. The record was brought up by Sir William Thorpe, ChiefJustice of the King's Bench, and thereupon the King assigns several Counts, and Barons, and with them the Judges, and, at that time, Thorpe supplied the place of Speaker. But how they came first to take this qua Barones, he knows not; and, at this day, though the Lords have incroached, they do assign certain Judges with the Committee. What they have formerly got upon law, they would now get upon conscience.
Sir Edward Dering.] If we go upon Privilege, we have arguments irrefragable to maintain it; and, if we do not prevail, we have reason on our sides; if we do, we may have fruit of the good Bills before us.
Sir Nicholas Carew.] The Lords have told us, "they will not confer," and have made an Order in it; but he would not give the Lords so great an occasion for prorogation. The Lords cannot force a Commoner thither—But he must petition, and when they know that easy way of Appeal to the King, they will follow the more easy way.
Sir John Duncombe.] He has sat still to inform himself. Now, he thinks the Question is altered from what he thought it at first, viz. "for Conference," that the thing might be calmly debated. 'Tis not for this or that Bill, but for the Government he speaks. There is a distemper, a chagrin, in the world, and, by this heat, we may be in such a condition as never to be able to recall it again. He hears of a disposition in the Lords to an accomodation. He would have you do so too. Would move slowly in it.
Mr Swynfin.] Unless what you would maintain, and what you would yield, were stated, 'tis in vain to think of a Conference. The difference between the two Houses is not as between man and man. Before you agree for a Conference, set your own resolutions, what your Managers shall maintain there. Would know how gentlemen came to differ from themselves since the last Session. Would know your sense how far you will maintain that right before Conference; else no man dares undertake to go to Conference. Set down first, "that this is a breach of Privilege, and that Fagg do not appear to the Lords summons, and that no Appeal can be brought to the Lords, &c." If you go less in this than you have done before, or alter your minds, he should be doubtful to go to Conference. The reasons offered against this doubt, "If you add this, the Lords will deny you any Conference, and so the breach will be made wider"—Would consider whether we are not as likely that this succeeds at a Conference, as if you asserted both—You will as well be denied Conference to your Privilege as to the Judicature. You have been expressly denied Conference in Fagg's case, because it would mention Judicature, and now we are as likely to be denied, and so weaken yourselves in the other—Laying aside the one will weaken you in the other.
Sir William Coventry.] 'Tis not possible for your Members to manage the Conference without your instructions. What was proposed first, was not at all to confer upon the merits of the cause—He was surprized, at the beginning of the Debate, to find the King's advice in his speech so much forgotten, when he presumed it might have been best remembered, and now you are advised to go on hastily to the merits of the matter—We are of the same mind still, and no Debate to the contrary, and most seem to believe the Lords ill founded in the business of Appeals in general, and summoning Fagg, in particular; but, in the manner of proceeding, there is great reason to bethink ourselves of other methods. Shall we go on in the same steps, when we have seen the danger? And there is no tergiversation in the case—Only the fruit of the good Bills—And the provocation is given and not taken. It has been objected, "we are not to decline the interest of the Commons that sent us hither." If you confer upon Privilege only, you acknowledge the Lords jurisdiction. Would not take more care of ourselves than of those who sent us hither—'Tis necessary that the plaister be as big as the sore, but would have time to shape it—That still we may have a reserve, not to exclude our Privileges, nor give up the matter of Appeals in general—Would not part with one weapon, no, not to a pin—Then the point is, what Message you will send for this Conference. If you put it only on Privilege, you disarm yourselves. If, on the Lords universal Jurisdiction, you may exclude Conference—It may be avoided by not mentioning Privilege at all. He has not vanity enough to propose a question, but only his scope drives at, to let the Lords know, "that you understand that there is a time appointed for hearing the Appeal against Fagg," and not mention him a Member of the House. We have many things to object against it, but because many good Bills are depending, and we are loth to give them interruption, we desire the Lords to set that hearing back. Thus, he hopes, the rocks we are afraid of may be avoided.
Mr Secretary Coventry.] He has been as much for appeasing this difference with the Lords, as any man, and has never advised any heat—The Lords have begun it, and have summoned your Member. When a difference has been between two persons, and a box on the ear given—The Lords have begun this difference, therefore 'tis not for your honour to postpone it. He that has received the injury amongst inferior bodies, 'tis not honourable for him to put that off in the reference, and he questions much, whether it will stand with your honour, to desire a postponing this matter.
Sir Thomas Littleton.] The worst that can come he is far from despairing of, ever having more Parliaments. Another House of Commons may come of another mind. By asking this Conference, we have a double prejudice; by postponing, we have received the aggression from the Lords, and forbearing our own rights, which will be of hard construction without doors. It is yielded, on all hands, that the Lords are quick-scented, and will deny us Conference—He would know whether any Member will assert what you do now forbear to do. Would therefore do as you did in the last Session, on this occasion; assert this right of yours by a Vote.
Mr Garroway.] What's the subject-matter of our Debate? Rather to yield the point of Privilege, than that of Judicature, to judge us, and execute that judgment when we are gone home; else it may be played upon you, that you assert Privilege, but you deny not Judicature. Thinks it safe no other way; therefore, would have the Question, "that the Lords have no jurisdiction in matter of Appeals, &c."
Sir Thomas Meres.] Two nations having fallen out, one says, "'Tis my turn," and another, "'Tis my turn." We have all said that 'tis our right—And not to dare to put it down into our books!—If we are in the least afraid, the Lords will run us down. He is, therefore, for voting it now, that we may not be put to it to say "Good my Lords, grant us a Conference." When we go on, in a Parliamentary way, he doubts not of a good effect. He is not afraid of the cloud spoken of by Duncombe; he supposes this cause of Shirley is like a mastiff-dog, held by the collar, to be let loose at us, and they will slip Shirley at us, as they did the last Session, when we voted, "No new Bills to be brought in, &c." If things go to their liking, they will hold their dog; if not, halloo. If you show pusillanimity, then that of the Commons Appeals, that is gone. Some say, "Ask this Conference, on the state of the Nation, something like what the Lords did about the four Lawyers." We thought that not fair, and should we (with such a preface) come out with the single Privilege of Fagg? But, in that case, as long as Fagg has us at his back, we are safe, for whilst the Lords sit, we sit. But suppose there should be another Parliament, and he a Commoner, and no Member, then the Lords will be even with him (having no Privilege.) Moves therefore for the last Vote, and if you will spend your time, do it upon what is for the good of the Commons. Therefore is for putting that Question now.
Sir Henry Capel.] This Debate is perfectly to exercise our prudence and wisdom; we need not learn it from the Bear Garden. If you will remind the Lords of the King's speech, and show how far we have gone according to it, to put by this for the present, you have his affirmative to it.
Mr Sacheverell.] Agrees to it, if any thing might follow for the good of the House. When you were prorogued, let no man say this was the occasion. How came you by four Prorogations before this business was on foot?—The parting with this seems to him to be a parting with the whole Commons right. If you ask a Conference, either upon Judicature, or Privilege, the Lords will deny it—He presses not the going up with the Vote, but, unless you assert it, it falls to the ground. If gentlemen are afraid to own it, the Lords have it perpetually in their power.
Mr Powle.] Because this is argued by metaphors, he shall do so too. Upon a difference, one demands full interest and charges; if you go back at the beginning, you give advantage. The beginning of this quarrel came not from you, 'twas studiously avoided. Now the Lords send you a challenge. He that has right to an hundred acres of land, and yet asserts but twenty, surely weakens his pretences to the eighty— And a train of gunpowder to blow both parties up whilst they are treating—If there be any such stratagems as the Lords to keep this to controul you on future occasions, you are still free for a free Conference; you have not yet voted "adhere." Would go therefore to the Question proposed, that so we may stand our ground, and show no fearfulness.
Sir John Duncombe.] By this asking Conference you may retain your Privilege, and the people admire your tenderness in the good effect of this Session.
Mr Vaughan.] Should you pass over this Question, 'tis a discountenance of your claim, and should the Question go in the negative, 'tis a quitting your claim. Therefore he is for the Question.
Sir William Coventry.] 'Tis said, "that the prorogation, the last Session, was from something under ground," but most apparently, it was from the difference betwixt the Lords and us. But would have the Conference now, to try whether our Bills be the true cause of the prorogation. If a man should be tied to be in a room, where gunpowder is, surely he would be careful to set his House in order; especially, if he apprehended a train laid to it. Would go on to finish these Bills, whilst the House is full, before it be thinned by the length of this Conference. And, to follow the metaphor of "the dog," would make no scruple, if his neighbour's dog was unruly, to pray his neighbour to tie him up, that these pretty Bills, our children, may pass unmolested.
Sir Thomas Lee.] Is fond of "the children," and is for tying up "the dog," but the Question is, whether this Conference is not a kind of a slur to our pretences? If the previous Question be put, and a negative upon it, the main Question can never be brought on again— That what is done by Votes, the value and effect of them, is gone in a prorogation, is the universal opinion— 'Tis a changing your mind as to so much as that Question imports. Suppose the Lords tell you, "because 'tis a Question of Privilege, we will wave it;" and another day, one tells you, the Lords have done it—Must you then complain?—But would put it as far from you as you can—And is for that Question, because he would not have the thing slurred.
Mr Secretary Coventry.] This Question will preclude all the moderate applications you have debated. At the Conference would let the Lords know how quiet you have kept all things in your station, to let the public business go on.
Lord Cavendish.] Was for this way of proceeding the last Session, but is not for it now. Would have the previous Question put—He is desirous that the good Bills depending should pass.
[The previous Question was then put, and it passed in the negative 158 to 102.]
Mr Garroway, (privately).] By this Vote you may get your Privilege for a few of us, and lose the Judicature upon the whole Commons of England; besides the endangering never raising the spirit of the House in it again, and hazard the Bills too.
[The Question for adjourning was carried 110 to 108.]