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, November 18.
A Message from the Lords. The Messengers, by mistake, thus delivered it: "Mr Speaker, the House of Commons have sent you a Bill for prohibiting foreign manufactures, and desire the concurrence of this House."
Col. Birch.] Let us take the Message so as 'tis delivered. The Lords make little enough of us already. Would understand the Message a little better.
Mr Maurice delivered a petition from the Stationers, in custody of the Serjeant of the House, for breach of privilege, in seizing almanacks (fn. 1) in Col. Robert Philips's house.
'Twas moved they should be discharged.
The Speaker.] Will you give up all your Privileges? Will you discharge them, without calling them in?
Sir Thomas Meres.] The matter is not upon your Member, nor his servant, but the goods. Were it a clear title, as this is litigious and doubtful, and the people did it not maliciously, nor wilfully, would use them more mercifully; they are men of condition, and house keepers.
The Speaker.] If you give it up for this reason, he knows not how you can ever keep up your Privileges. Every one pretends ignorance. Nothing is so fundamental, as, if a breach of Privilege be committed, to enquire whether ignorantly. But you always discharge them at the Bar, upon their knees.
Sir Thomas Meres.] When a thing is found at the Committee of Privileges ignorantly done, it has been an inducement to your mercy. These men have suffered already, by lying in the Serjeant's hands some days.
Mr Garroway.] Would have it referred to the Committee of Privileges to examine whether this was done ignorantly, and to report it.
Mr Sacheverell.] Another person, and your Member, are at suit about these goods, in Westminster-Hall— Would have Philips inform you whether it be so, or no.
Mr Vaughan.] The House being possessed of the breach of Privilege, you ought to discharge them at the Bar.
Sir Nicholas Carew.] He never knew before, that your Member Philips was an Almanack-maker. Upon Philips's saying the goods were his.
Col. Philips.] He is no more an Almanack-maker, nor weather-wise, than Carew.
Mr Boscawen.] Would know whether this was done in Philips's actual dwelling house? If it be a warehouse in another man's house, 'tis no breach of Privilege at all.
Sir Adam Brown.] In Mr Barrel's case, about seizing Mr George's chamber in the Temple, he did it ignorantly, and yet you brought him upon his knees.
The Speaker.] The whole Corporation of Canterbury were brought upon their knees for displacing the Recorder, Serjeant Hardres, a Member of the House (fn. 2).
Sir Thomas Lee.] If you discharge them, you must do it upon their knees. What shall they be called in for else? You commit the fault, and mistake yourselves, and they pay the fees—When once the House has passed judgment, shall you not tell them of it? The prisoner is to come to the Bar, and be admonished to do no more so, and be discharged, paying his fees.
Mr Sawyer.] What have these men deserved that they should have favour? By colour of Letters Patents, that are void, they break open your Member's House. He knows not upon what ground you can discharge them, without calling them in.
The Stationers were brought to the Bar on their knees, and The Speaker said, "You have committed a breach of Privilege in your insolent behaviour towards a Member of this honourable House. The offence deserves greater punishment than you have met with, but, upon your submission, the House discharges you, and you are discharged, paying your fees."
Sir John Birkenhead.] Moves, that the Messengers from the Lords may be called in, to mend their Message that they have mistaken.
Sir Nicholas Carew.] They have done us no prejudice, unless if they would make us the House of Lords, as they have made the Lords the House of Commons. It went off.
Sir John Mallet.] Complains, that the order to the Lord Chief-Justice, to attach St Germain, of the 8th of this month, came not to his hand till the 16th.
Sir Nicholas Carew.] The Clerk keeps the order eight or ten days in his hand—The Chief Justice has cleared himself. For our own sake, and the Kingdom's, would put a severe punishment on the Clerk.
Col. Birch.] Would not punish the Clerk till you find the thing done. Therefore would have the thing examined at the Committee.
Sir Thomas Meres.] Some days after, the Clerk expected the order should be taken from him by some of the Members. He told him "'twas his duty to look after it and dispatch it."
Ordered, That it be referred to the Committee to examine it.
Sir Richard Temple.] The House should have given directions, in the Warrant, either for the Serjeant, or some particular Member, to have carried it to the Chief Justice. The Clerk is not ex officio to do it.
Mr Sawyer moved for a Committee to consider of the matter of Appeals from Courts of Equity, to the Lords, &c.
Mr Garroway.] Would know what Sawyer means by "moderation, to let it sleep to day, and be in a flame on Monday,"—adding these words, "I love to be plain," as if he intended reflection. Would have him explain his meaning.
Mr Sawyer.] Every man that understands connection of words, will plainly apprehend him. He means, that when the Lords have heard the cause, we shall be in a flame.
Col. Birch.] Plainness and clearness in all things end best. He takes it to be all one, to enter into this Debate to morrow at ten of the clock, and the same thing as to say we will not do it all—This stone will roll upon us one time or other—He desires the Speaker to tell us, if, after the previous Question, the House ever entertained any other Debate till that was lodged —Would know, in reason, whether the business of the Lords, or the Kingdom's business [should be preferred.] 'Tis visible we cannot do it by Saturday, and that the people should see the two powers by which they are governed have such a difference!—A Question laid aside by a previous Question, cannot be brought about again.
The Speaker.] The Question was not laid aside— In the main Question, therefore, they put in the word "now."
Sir Thomas Lee.] Agrees with Birch—He intended no otherwise than he says. He has not known the like Question put again, when laid once aside by a previous Question. But the word "now", it seems, excludes it not.
Mr Sawyer.] It may be resumed, but not now, till other Debates are over.
Sir Thomas Littleton.] A double motion there was for a Conference, one upon the single cause of Fagg, and the other upon Appeals in general.
Sir Thomas Meres.] To the word "now." Whenever two Questions are started, the former is to be put first. This about a Conference was first, of a Committee of Lords and Commons—But no man ever knew a Conference, when no matter was stated to ground it upon. He hopes we may be over these matters to morrow morning. Shortness of time is urged—'Tis true in their method, but in Parliamentary method not.
Sir William Coventry.] Thinks Parliamentary method not so easily found out; it would else have appeared yesterday, if any. He thinks the word "now," does not totally exclude—But not the next Question to be put ("abhorrent.") The consideration of your Member weighs much with him—The last Session you sent to the Lords "to have a care of your Privilege;" this Session you say nothing of it. The Lords will say, "the Commons knew it the last time, and took it to heart, and sent to us about it; it seems now, they take no notice of it." If Fagg have leave to appear at the Lords Bar, there are presumptions that the cause will go for him, but not any appearance, and 'tis hard that your Member should be involved in the Lords judgment, ex parte. He did the last night detain you some time—'Tis the right of every Member to be heard. He would only then have had one single candle—He is so willing to acquiesce in the judgment of the House, though in no particular man's, that he sat down then as if shot—Would have the Question put for adjournment.
Mr Vaughan.] One said "he would sit to have time to understand one another"—That's combination. If Fagg stands the utmost contempt, the Lords will give judgment, and not before;so you have time enough.
Mr Secretary Coventry.] Your measures must alter, as the Lords proceed there. 'Tis said, "We may adjourn to talk in Westminster-Hall, and confer there." He never heard that the House was adjourned thither. We are all here now, and would consult here, and no where else.
Serjeant Seys.] Fagg's answer is before the Lords, and what he says without proof, will be taken for granted on the other side.
Sir Thomas Clarges.] Gentlemen may confer together in Westminster-Hall, or where they please. The matter is of weight, and we have done our duty like prudent men; let us leave the event to God Almighty.
Upon the Question, the House divided about adjournment, and it passed in the negative [141 to 81.]
Mr Garroway.] Moves that the House would declare whether the Vote of the last Session, "that no person should prosecute an Appeal, &c." be still an order in force, or not. If you have altered the mind you was in the last Session, would know it.
Sir Thomas Littleton.] We made an Order last Session, that we thought sufficient then, and now would know whether you will have any publication of it. Sir John Churchill, you may remember, said, "He had not offended your revealed will." Would have that Vote therefore revealed and published in the usual manner.
Sir Edmund Bowyer.] That moved will be of great moment and use in the progress of this business; of great satisfaction both within doors and without—Would declare whether there is any obligation upon it, or not.
Sir Henry Goodrick.] Approves not of giving that discredit to our Vote, as to think publishing it of more authority than our books. That business was done so publickly, the last time, that all people cannot but remember it. The difference has been so fully debated and handled, that generally through the Nation notice has been taken of it. It has been said, "that generally the Privilege of the House has been insisted upon more than the good of the Nation"—Would proceed only to assert the Order of your books—And, as Lord Coke says, be sucviter in modo, and fortiter in re.
Sir Richard Temple.] 'Tis a dangerous Question to put this again. 'Twas a standing order—'Tis but what was your Privilege, before you declared it in the Vote of last Session.
Sir Thomas Littleton.] If you entertain the Debate, and the former Order springs out of it—To have recourse to a foreign business! Wonders at it.
Sir Robert Carr.] Would first have a Conference with the Lords, and then renew the Votes of last Session, if no good effect come, yet for the last memory of it.
Mr Sacheverell.] Is one of those for a Conference, and will go as far as possible towards an accommodation. But he wonders gentlemen are against the thing now debated—'Twas the very reason against the Question last night—All desired it; all desired but to declare this, that you have been moved—He hoped gentlemen would have a fair accommodation upon such grounds as they admit of themselves.
Sir John Duncombe.] Thinks we have done enough the last Session. We imprisoned the lawyers, and voted "that none should appear at the Lords Bar, &c." The reasons why we go to the Lords, is, that the Parliament may not be broken—We are for healing, and look not so much after our own Privileges. The first and second Question are all one thing. But previous Questions may be to them both.
Mr Secretary Williamson.] 'Tis said "if the thing be so, declare it now," but he answers, because 'tis so, there is no need of declaring it so. Nothing is safe in this matter, but what is necessary—"Order" is an equivocal word. Standing Privileges are still in force.
The last Order created not what was before on foot. Therefore to declare it needs not.
Sir John Hanmer.] Is not for giving away our liberty by a Conference with the Lords. If we are giving our Privileges away, let men say it—If you will say you have no manner of right—Let's say 'tis gone, or not gone.
Earl of Ogle.] Our right remains strong without declaring it.
Sir Charles Harbord.] Thinks it enough for ourselves, but not for our fellow subjects. Would declare about the Counsel, &c. if they appear. A Vote is nothing, but a Declaration is; which you should do presently.
Col. Birch.] Whether this way of publication, or Conference, be the way to attain your end? If we are real for Conference, before this time, you might have known whether the Lords would grant us Conference or no; and then you might have gone about this. Therefore not to destroy the Conference, lay aside this Question of publication. If the matter of Conference be denied, he'll go with the highest.
Mr Secretary Coventry.] The Question is not concerning your Order—If a Commoner cannot plead, 'tis a breach of your Order. Was any Order made about the forbidding breach of the House for Almanacks? But the Stationers having done the fact, you punished them—You have formerly declared it, and by putting the Question again, you doubt whether 'tis your Privilege or no.
Sir Thomas Meres.] 'Tis only desired you should declare that your Order of the last Session is in force. He knows that in particular business, which dies with the Session, 'tis one thing; but another thing to declare your Privilege. If you are so tender, you do not declare this—Says one "this will destroy the Conference, and the Lords will not agree to give it." Says another, "it may chance to prorogue the Parliament." He likes not that argument, "if not so and so the Parliament will be dissolved."—See what handle you give the Lords. "If you show fear of dissolving or proroguing, say the Lords, we will carry this point." All he fears, is, that our prudence will lose our Privileges. This is our Privilege when any Counsel appear against a Member in Westminster-Hall, or at the Lords Bar, Declare this our right, or else he fears this point will not take at any time of the day—Would not give away Privilege for fear of any Prorogation.
Sir Edward Baynton.] There can be no ground lost, if we are prorogued twenty times—He has observed this Debate all along, and can hardly parallel it. Why did we set aside the Question yesterday, but that we should not clog the Conference? And now we go to accumulate all we did the last Session in one Vote—We have divers good Bills before us, and we shall be told in the Country, as we were before, "that we have done nothing."—Some would have a Conference, and now what matter shall we prepare, but such as will never have it? It looks as if we desired Prorogation—He neither fears it, nor would have it—The sense of the House being for a Conference, would have what may tend to it.
Sir Henry Goodrick.] Seconds the proposition of a Vote, "for the lawyers being forbidden to plead, &c." He finds that he was mistaken by some gentlemen, that he meant all the Votes, but he means only the Vote he read about the lawyers, and insists still upon it.
Sir Nicholas Carew.] We are not free to that Vote now, but we shall be tomorrow.
Sir Thomas Lee.] Takes the main Question to be the last Vote, about the lawyers. Where are you then, if the Question be put tomorrow, and carried in the negative? If it be not seasonable now to pass that Vote, would know the reason why it will be seasonable after the Conference—Is not willingly frighted with the hard words of Adjournment, and Prorogation—You ask the Lords a Conference tomorrow, and they grant it presently, and then you deliver your Votes—The Lords cannot reasonably agree to answer your Conference till towards two of the clock, and it may be they will deny it then—Now a negative, you will not declare about the lawyers, and after all is done, you order it, and the lawyers will tell you "they knew nothing of it, and they saw upon your Journals you would not put the Question; therefore they thought you would not commit the lawyers till you had voted their pleading against your Members a breach of Privilege." —The putting the lawyers in the Tower, hindered the Lords from proceeding farther in the cause. Therefore he thinks that 'tis now seasonable for the main Question, and not the previous Question.
Mr Vaughan.] 'Tis said "that this is a standing Order, and therefore you need not reinforce it." But your Vote is a renewal of your Order.
Mr Williams.] You were told yesterday that the Lords were the first aggressors in this difference. There is a report this day, that the Appeal of Whichcote is brought into the Lords House. They had not done that this day, if we had not been so remiss the last night—As to the substance, we differ not—We are jealous of the Chancellor, as [being] an Appeal from one hand to the other—We agree no Appeal to the Lords. But 'tis said—"not prudential at this time to declare it" But since the Lords have made the same steps, and resumed all they did before, why should we not make some steps to them? Shall we have no preparation? Not to declare first our subject-matter? As to the precedential part, so much spoken of, we ought to declare our Order. Since all agree that no Commoner can have his Privilege invaded, 'tis no more than what you have done before. Is it not a prudent thing to give gentlemen of Westminster-Hall fair warning? If it ends upon the Question not put, is it not a blast on your first Order? The Lords have drawn their swords; let us not walk backwards.
The previous Question about forbidding the lawyers, &c. was carried in the negative.
Resolved, That a Conference be desired with the Lords [for avoiding the occasions of reviving the differences between the two Houses. The words "in matters of Appeal," and "brought by Dr Shirley," were rejected, 130 to 84] But upon division of the House, parties were strangely mingled.
A Committee was appointed to draw up [Reasons to be offered at] the Conference, which were as follows:
"His Majesty having recommended to us, at the opening of this Session of Parliament, the avoiding this difference, if possible; and, if it could not be prevented, that we should defer those Debates, till we had brought such public Bills to perfection, as might conduce to the good and safety of the Kingdom; the Commons esteem it a great misfortune, that, contrary to that most excellent advice, the proceedings in the Appeal brought the last Session against Sir John Fagg, [by Mr Shirley] have been renewed, and a day set for hearing the cause: And, therefore, the Commons have judged it the best way, before they enter into the argument for defence of their rights in this matter, to propose to your Lordships the putting off the proceedings in that matter for some short time; that so they may, according to his Majesty's advice, give dispatch to some Bills, now before them, of great importance to the King and Kingdom; which being finished, the Commons will be ready to give your Lordships such Reasons against those Proceedings, and in defence of their rights, as they hope may satisfy your Lordships that no such Proceedings ought to have been."
Friday, November 19.
[Sir Wm Coventry reports the above Reasons, which were read, and agreed to by the House, and] sent up to the Lords, [and no answer was returned.]
In a Grand Committee, on the [act to prohibit the importation of] Irish cattle. Sir John Trevor in the Chair.
Mr Powle.] The true Question is, Whether, when provisions are cheap, it be for the interest of the nation, and whether manufacturers will not transplant themselves where provisions are the cheapest—The next consideration is, Whether the Irish, by this Act, have not converted ground to breeding of sheep, and so have by their trade fallen the price of our wool—Moves that the Committee that does not so much intend this vote may rise, and the House go upon some other business.
Mr Vaughan.] Corn coming in makes the Husbandman careless, and Cattle the Shepherd lazy. 'Tis said the Bill makes provision dear. 'Tis all one to the labourers, whether provisions be cheap, or dear. Their price of work is so too. If you go about to destroy the Kingdom of England, then the movers will be in the case.
Col. Birch.] Allows it Vaughan, imposition for cattle—For he knows his own meaning best, when he moved for imposition on fish.
Several motions being made for Trevor to leave the Chair,
Sir Wm Coventry.] Said, he apprehended the thing of great moment to impart to the House—He has no secret he would reserve—'Tis hard for any gentleman to say how near the point is to a Question, but what moves him is, he has heard that the Lords are risen, and no answer at all, of the House's desires of a Conference, which was to put off the business of tomorrow, in their House, about Fagg, and now cannot have effect. His intention was to have come by fair steps to our business with the Lords, though possibly he is under some misconstruction.
Sir John Trevor left the Chair. The Speaker resumed it.
Sir Nicholas Carew.] Was one of those gentlemen for moderation, and we went to the Lords for a Conference, and the Lords are up, and have sent you no answer. If you do not something, you will prejudice the Commons of England. Would therefore vote, before you rise, "that no lawyer shall appear against Fagg at the Lords Bar, in this cause, &c." and set up your vote in Westminister-Hall, and the inns of court.
Sir Henry Capel.] He hears the Lords are risen, and do not sit again in the afternoon; therefore that no man may lie under danger, would vote, "that no Lawyer plead at the Lords Bar in this cause."
Mr Stockdale.] He hears of another Cause, Whichcote's case; therefore would have the vote general, "that no Lawyer appear in any Appeal, &c."
Serjeant Seys.] First declare that the Lords have no power in Appeals in general, and then, what is moved.
Col. Titus.] 'Tis necessary to see what votes were made the last Session, and to renew them now.
The Speaker.] When you have once declared your judgment in the right of a thing, you need not renew it, but you may publish it for notification—And reads the former Vote.
Sir Henry Goodrick.] Seconds the motion—We have gone in that temper which he thinks very commendable in us, and safe, so far; since the Lords have neglected this offer, he moves in the behalf of all the Commons of England—Would not take this upon report, but would have the Lords books searched, and reported to you.
Sir Richard Temple.] To renew your Votes is the way to weaken them. How can you then justify the punishment of the Lawyers, if this Privilege is not always inherent in you? Now you have no Conference publickly, you must let the world know, that now you maintain your rights—You will not have them ravished from you, and he would have this order published, &c.
Mr Leveson Gower.] Possibly the Lords may send you some message tomorrow—Would have the Lords books searched.
Mr Mallet.] 'Tis necessary to interdict the Lawyers, and promulgate it; but if you stay your farther Vote till tomorrow, possibly the Lords may appear so dangerous, we may think good to remove them.
Sir Wm Coventry.] Though he was one of those who came the most unwillingly to this work, of any man, yet would now give it a dispatch, and seeing that this moved is no declaration of our rights, but a publication, when that is done, we may see what is fit farther to be done.
Sir Thomas Meres.] Is of opinion that it needs no more than what you have done already. The declaration of it your right, is by putting it on your books—It was ever yours before. Would add to the former Question to show the Commons of England we are concerned for them—He will not gall the yesterday's arguments of prudence, which has no effect, you see. In that publication let the Commons of England be concerned, as well as ourselves. Would not, in this publication say, "the Lawyers," but "that no person shall defend a cause, by way of appeal, at the Lords Bar, from a Court of Equity."
Sir Robert Carr.] Is one who was yesterday for a Conference—Now the matter is what you please to do, since we see we are out of hopes of accommodating the matter. If the Lords proceedings be illegal, and we cannot adjust the matter by fair means, we must justify the rights of the people, that sent us hither. If the Vote be not so penned already, would have the Commons see, that we defend them as well as ourselves. There are a company of busy men, sollicitors; would have them punished, as well as they that come to plead at the Lords Bar.
The Speaker.] You have protected your Member. The foundation of an Order may be first for the people in general, and then for your Members.
Resolved and Declared, That whosoever shall sollicit, plead, or prosecute any Appeal against any Commoner of England, from any Court of Equity, before the House of Lords, shall be deemed and taken a betrayer of the Rights and Liberties of the Commons of England; [and shall be proceeded against accordingly.]
Thus preambled. "Whereas this House hath been informed of several Appeals depending in the House of Lords, from Courts of Equity, to the great violation of the rights and liberties of the Commons of England, it is this day, &c.
Copies of this were ordered to be fixed upon the lobby doors, Westminster-Hall gate, the inns of Court, and Chancery (fn. 3).
Sir Thomas Meres occasionally quoting Lord Holles's last book,
The Speaker said.] 'Tis an idle pamphlet, and he believes you will dispose of it accordingly.
Col. Birch.] When the officers smile, the soldiers say there is no danger, and they are out of fear. Is glad to see our leaders do so. He sees not why you should use the word "Order;" it looking new, would have the word "Resolve." He is glad to see we have no jealousies amongst good friends, now.
Sir John Trevor.] In the 17th page of the late book mentioned, the Lords pass by the King; the Lords make themselves sole judges, and the Commons have no part in it at all; and, in page 25, they expound their meaning, "though they judge in the King's name, yet the King has no share in the judgment."
Mr Powle.] Would put it so as not to be exclusive of the Commons and the King.
Sir Philip Harcourt, merrily.] Moves that the Votes may be put into the Gazette in the nature of an advertisement.
Sir Henry Capel.] Is sorry the message we sent to the Lords has not the weight we thought they would have made of it. Moves therefore to shut the door to any new Bills, or business, and to proceed only upon such as are already brought in, or already ordered.
Mr Sacheverell.] And those that shall come from the Lords, and so far he seconds him.
Saturday, November 20.
The Speaker, to a Customer (fn. 4), a Frenchman, by name Cardonnel, who gave affrontive words to Sir Robert Holmes, Governor of the Isle of Wight, at the Bar.] You have abused a Member of this House with saucy words, a Governor, and one in authority. Principles you have brought out of your own country. But, upon your submission, and sorrow for what you have done, you are discharged, paying your fees.
Sir Trevor Williams.] Informed the House of Sir Nicholas Stoughton's summoning Mr Onslow to the Lords House, in an Appeal, &c.
Sir Adam Brown.] Moved that the Lord Keeper be sent to, to put him out of commission of the peace in Surry, being a man of ill principles.
Ordered, That Thomas Shirley, Esq; be taken into Custody of the Serjeant at Arms, for his breach of Privilege, &c. and that a Warrant be issued out by the Speaker accordingly.
Ordered, That Sir Nicholas Stoughton be also taken into Custody, &c. and that Mr Onslow do not proceed to make any defence in this cause.
Sir John Coventry.] Made a Motion that the Speaker might leave the Chair, and that the House may go into a Grand Committee to enquire into the state of the Nation, and into the actions of persons about the King, for we may very well suppose we are not long-lived.
Sir Thomas Clarges.] We are not to suppose "we are not long-lived," but he would have the Speaker leave the Chair. Which Motion was seconded.
But an adjournment of the House was carried in the affirmative [138 to 123] which, several said, was by a mistake of the Tellers.
Monday, November 22 (fn. 5).
The House of Commons was sent for up to the Lords House, to attend the King, by the Black Rod, where, without any speech of King, or Lord Keeper, the Parliament was prorogued to February 15, 1676-7.