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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Friday, February 16.
Sir Robert Holt, a Member, and Prisoner in the Fleet, [at the suit of Mr Edmund Prideaux] wrote a letter to the Speaker, of his detainer there, desiring it might be represented to the House, that he might have his Privilege of attendance—With a Petition, delivered by Sir Henry Pickering.
Mr Powle.] Would have the matter of a prisoner in execution debated; men else may be wronged of their just debts. In King James's time, Sir Robert Sbirley was sent for out of prison by a Habeas Corpus (to Chancery) that the execution might not be voided.
The Speaker.] In Shirley's case, by the Statute of 7 of King James "all persons taken in execution, discharged by Privilege, shall, after Privilege, be retaken upon the same execution, without prejudice to the creditor."
Mr Sawyer.] If this was an Adjournment, there would be no Question of Holt's Privilege, and the Question must be, Whether he was taken in time of Privilege, or no. Frettyman's case. That Statute of 1st King James extends only to matters within Privilege.
Sir Richard Temple.] That case, in the Act, 1 King James, was grounded upon one taken out of Privilege. No man denies but that the man must be delivered, to attend your service. That Statute is for the interest you may have in your Member, and the party have reexecution.
Sir Thomas Meres.] In the case of Prettyman, there was a Petition, and the cause was heard at the Committee of Privileges, and there is no other case comes home to this of Holt. If you will go by that case, you must hear the creditors. If a Petition be pressed to be read, he would have any Commoners Petition heard.
Mr Sawyer.] The thing was never done before Prettyman's case, and untill that case all former records are flat precedents against it, when a Member has been out-lawed before time of Privilege. He is as much for Privilege as any man, where 'tis for our being, or wellbeing, but would not enlarge where we find no warrant for it by antiquity. Would refer this matter to the Committee, and enquire the time when the Member was arrested.
Sir William Coventry.] There is Prettyman's case against Prettyman, one arrested at the suit of the King, where he was the King's debtor, and another against a private person. There is Privilege against the King, but not in cases of felony, treason, or breach of the peace. But, in ordinary prosecutions, there is Privilege against the King, as well as against another man. He (Prettyman) was judged to remain in prison, in the King's case, against Privilege of Parliament. Would not therefore swallow this case upon one precedent of Prettyman, when another precedent of the same person is in the case.
Mr Secretary Coventry.] Would have you enquire what the real Privilege of the House is. You have yet heard but one party, the creditors. If you hear Holt at the Bar, and hear him not as a Member, you make him criminal.
Sir Thomas Meres.] Would have it heard at the Committee of Privileges (when it sits) the first thing. No man will be so disingenuous, as to take any advantage upon the point, the Prorogation being now in dispute.
Serjeant Maynard.] You can know the cause of detainer from no man, but the keeper of the prison. There may be some causes why he may not be let out free, as felony, treason, &c. But, as to this matter, precedents are on both sides, and he would refer the matter to Committee.
Resolved, That the matter of Sir Robert Holt's [case] being [taken in execution, and] detained a prisoner in the fleet, and thereby hindred from attending [the service of] this House, be referred to a Committee.
Sir Thomas Meres.] The next step properly brings on the business of the day. If the Prorogation we now meet upon be contrary to two laws, and we meet upon an Adjournment, then you have a Committee of Privileges ready named. If the meeting be good upon the Prorogation, then you are to name the Committee.
Mr Garroway.] The thing was moved yesterday, and debated with modesty. In this matter he desires so to serve his country, as not to be hanged for it hereafter, upon the unhappy consequence of the King's death (which God avert!) If we now go on to the Question, then we shall see farther how this Prorogation for fifteen months is good in law. If it be not good, then how dangerous will our proceedings be as a Parliament? The Debate will be long; therefore would adjourn it till to-morrow, nine of the clock. And if we shall be so happy as to bring this to an issue, 'twill be much for our comfort, and the King's satisfaction.
Saturday, February 17.
Mr Sacheverell.] All his design in this matter is to go on fairly—He takes the Parliament to be continued, by Prorogation, or Adjournment, or by somewhat tantamount. 'Tis resolved fully that the Parliament can be no way dissolved, but by the King. No other way, but by matter of record, in the Journals. Either then we stand on the state of the Prorogation, or Adjournment. Therefore he doubts not but as freedom of speech is his and the whole Parliament's right, so there will be a candid acceptation of what shall be said. The matter now is discoursed abroad, (but he is satisfied of his right) that the Lords sent to the Tower were censured for something we are now upon (fn. 1). Takes it to be his freedom, but desires that gentlemen will tell him before hand, if 'tis not your pleasure, that he should go on in this Debate.
Mr Secretary Williamson.] The gentleman has ingenuously told you of our freedom of Debate here, if we keep within the bounds of prudence; but he doubts this matter comes not properly under our Debate. As to right, or as to conveniency, we run into intanglements without end, and have no fruit of it—But to the Modus, how we are a Parliament, no fruit can be of Debate how we are continued, and that can but end in a Vote; which will not signify any thing. The Acts of the Prince are sovereign Acts, and most sovereign. Sees no effect if either House should take such Debates in resolution. The two Houses may differ in opinion, and neither can judge the thing, and consequently there can be no determination—Therefore the Debate will be highly inconvenient, and desires it may be laid aside.
Mr Secretary Coventry.] Would have you consider what you must do, and should, as well as what you may do. He finds no obligation upon you; as when being part of the legislative authority, and none of the judicial; and no part that we can assume in this determination—When we acquiesce in the Lords, if any Court can judge it, that can, or the King. When the King sends for you up, and he declares a Prorogation, and you not hear it, is it more or less a Prorogation for your not hearing it? 'Tis the Journal that proves it, and the King says "you are prorogued," and will you say "you are adjourned?—" You have no such power. The main foundation is quite mistaken—Where there is an illegality in the Act, that is no Act—The Act is vitiated so far as the Lords declare it—Great inconveniency else will follow. Law is law, just or unjust. Suppose people married without licences, or after twelve of the clock, or a child christened, and the sign of the cross omitted;—is the child not christened, or the persons not married? The law annulls it not. The law says, "a man shall not be above an hour in an Alehouse, or Tavern," and a man has been there three hours,—and shall he not therefore pay his reckoning? He takes it for granted that omission of circumstances does not annull laws.
Mr Secretary Coventry.] Goes on—Though the thing were illegal, it infers no profitable Debate upon it. No issue can be of it. Will you go to the House of Lords to reverse it, if it be your opinion that they are out of the way? The Quære is, if your meeting should be called in Question another time, and therefore for our own safety we examine it. What can another Parliament question? Every thing, but a dead man—This body cannot question it, but may not particular men? God forbid he should say what a future Parliament cannot do! Every particular man must answer, and he has as much to say for it as can be, viz. The King, Lords, and Commons determine it to be a Parliament. But suppose it were a Prorogation for ten, twenty, or thirty years. In the Chatham business, though the King had prorogued the Parliament before, yet we met— Whether can the King alter the time, or no? If he cannot, the King will be put upon a necessity of parting from a Parliament, when he has no mind to it. This power therefore of Prorogation must be. If the King prorogue for twenty years, yet he may call you at any day. But this would divide the whole nation, if it should be that the Lords sit by a Prorogation, and the Commons by an Adjournment. This is not to quiet the people, nor to do good. What will you debate of, if the Question be carried for an Adjournment?—Yet if any thing remain on your Journals, 'twill cause doubts abroad. Therefore would lay aside the Debate, as fruitless.
Sir Thomas Meres.] Coventry has let you into the Debate, and has argued it, and you cannot now retract. One side has argued, and may not the other? And the House has twice ordered this very Debate. He concerns not himself with the Lords, they may have Judicatures that he knows not of, but 'tis his right to speak, and he (Sacheverell) may go on with the Debate.
Mr Waller.] A day and an hour is now settled and appointed for this Debate, and before had been the proper time to dispute this. Sacheverell would not be suffered to go on, and yet Coventry enters into the Debate. He has seen Parliaments here never elected nor chosen by the people. The Convention made no doubt of their sitting, though not called by the King's writ, and he particularly heard the Debate of that call; that all the nation might know they did not desire to perpetuate themselves—A Bill was read, and avowed by that Parliament. He desires that Sacheverell may go on, and he will then tell you his mind farther.
Sir John Ernly.] That books are written of this, he makes no account of. But as for Adjournment, no man will debate things settled. 'Tis in the power of the King to make peace and war, dissolving and proroguing Parliaments. We must be judged by the King, and the Lords entering his proroguing or adjourning the Parliament on record, and the Lords will not retract that. And 'twill not be denied, but that we can adjourn as we please. Will not enter into the Debate, but would have Committees named.
Sir William Coventry.] Did never think of this hindrance that we have met with. It seems to him a confirmation of leave to enter into the Debate, by the day appointed for it, and unless it had been under a general acquiescence, and no motion intervening, desires to reserve his opinion, till he can establish it by those lights he shall receive by other men. He never yet knew that what the Lords had done, was established for a rule for us to go by. For sometimes we have converted them, and in some things they us. The Lords sending their Members to the Tower, for proposing and debating in their House the dissolution, gentlemen have reason to use that caution, to have some security whether they may debate this point, or not. He has no desire that this, or the other opinion, may prevail, but that we may not be questioned hereafter, if hereafter it should be started, Whether two Bills of the same nature can, in one Session, be Parliamentary. On that of recall of the French forces, and so of all others, there may arise disputes, if this point be not cleared. No man will say this is a trivial thing. Shall we in such a weighty matter rest on any single opinion ? 'Tis the wisdom of this House to judge this, and if we find inconveniences in the one or other, then to embrace the least. He is sure he shall answer all that is done here by his acquiescence in it. But that the Lords authority should keep us from Debate, hopes we never shall acquiesce in. Therefore would have a Question, whether we should proceed or not.
Sir Edward Dering.] We had a fair intimation that the thing should be debated—But a kind of tacit Order. Would not put the Question on the Debate; to have nothing on our books. That tacit Order was only, whether Debate, or Adjournment. He consents we should keep to that Debate.
Sir Charles Wheeler.] Was not forward for the Question, but because it was calmly reasoned, without Debate, and the Question then laid aside. The same temper now follows—And many inconveniences are laid before you, and there may be more in this Question— He sees no inconvenience but what may be remedied by a short Bill—When there may be difference betwixt the Lords and us, and if not an infinite necessity upon us, yet he would avoid it. Difference in any other way is to be avoided. He has reason to think that the King will pass such a Bill—Would lay aside the Debate, as much better not to go forward.
Sir Thomas Lee.] The Question is, whether you will proceed in the Debate, or no. You are told how to remedy this doubt by a Bill, such a course cannot be the remedy, because you cannot tell from what that Bill must commence. If we shall get good Bills, would willingly go home with the assurance of the time of commencing them. If we cannot judge our own proceedings, we can judge of nothing. As for the Prerogative, we see that reversed when the thing cannot be done, and, we may remember, the Canary Patent was voided here, though granted by Prerogative. If the King should make an Act to interrupt this Session, and that we must begin again—He knows not the law (he confesses) but would hear it from them that do—Put the Question, for satisfaction.
Mr Garroway.] If the thing be left a moot point, whether we shall debate it or not—For every man's security, he would have the Question put for the House to declare its sense, and if any man go beyond his duty in it, you, Mr Speaker, will take him down to Order, and before we say any thing farther, would have the Question, whether we shall proceed in the Debate, or not.
Mr Vaughan.] Is against the Question; for when you put the Question, you doubt, and yet take upon you to determine. The matter of the Question is, whether Committees shall be nominated; not whether we are a Parliament, or not a Parliament. That is a safe Debate; not to argue one thing, and be of another opinion; and no Question at all, by this means, will be upon your books of the legality of this Prorogation.
Col. Birch.] Did not think that a thing so universally consented to would be opposed. A strange thing it is surely, and for some great reason, if the thing is not to be debated here, before you. The Lords may be supposed to propose for money in the other House, and that might be matter of their commitment. We need not apprehend that so much. You cannot go off from this Debate. 'Tis absolutely necessary that every man should be free to debate, and what hinders it ought to be removed. But if the thing be debated, and overruled, as it may be, in such an untrodden path, he knows not what may become of us in our freedom. Therefore put the Question, whether we shall go on in the Debate, or not.
Mr Swynfin.] The Question before you is, whether you will proceed in the Debate; which he thinks is, whether we now sit by an Adjournment, or a Prorogation, and you ought, by the duty of the Speaker's place, to form us a Question upon it, as the sense of the House seems to you; and then 'tis ripe for you—There is no hurt in putting the Question, but great hurt in not putting it—There seems a great tenderness in you; but, by this Question of naming Committees, you multiply Debates, to no purpose. The main Question will save us all that labour, or the Question, whether that Question shall be put, or no, frees the House from much trouble, and all doubts will be taken away by it.
Sir Thomas Littleton.] Two things alter the case, without doors and within. He has heard that 1 Mary, there was a Question made of acting by that summons, because, in the writ of Summons, her style of "Head of the Church" was left out, and it was referred to the Judges. The Parliament comes on, and it was a Question then like this Question now. The like was in Queen Elizabeth's time, and then there were no such direful apprehensions of the consequences of such a Question. But as for naming of Committees, and then to resume the Debate of this doubt, he knows not what two or three gentlemens words are good for to secure it us. Then, it may be, we shall be told, we must not meddle with it. Therefore he would not be precluded.
Mr Sawyer.] He takes the Question to be dangerous. It doubts our being. By a previous Question you determine the matter. It will be upon your books. As to that spoken of, 1 Mary, the House fairly concealing the doubt, they put no Question upon it, but referred it to the Judges. There it was never put to vote, whether that was a Parliament, or not, but it was referred to the Judges, as a scruple of law. What confusion would there be if we differ in the matter from the Lords? And when the Records and Proclamation say this is a Prorogation, shall any man say, whether this be a Prorogation, or not? Things clearer then the Sun are never put to the Question. Shall any man say he doubts without reasons? Is there cause to make a Question in this House? Things that are the essence of government shall we make doubt of?
Mr Powle.] Many inconveniences have been alleged by this Question, but thinks them not of so much weight, nor the government shaken, nor the being of the House, because resolved. 'Tis said by it, we shall thwart the Lords opinions. We do that every day in Conferences; we to them, and they to us. The proper use of Parliaments is to inform the King, and by this we do it. Unless some persons think themselves touched in the Prorogation's being carried in the negative. 'Tis very necessary to mention freedom of speech: We hear what is done in the Lords House, and he knows not, but that gentlemen, who would avoid this Debate, may call such to the Bar, as are of a contrary opinion. Therefore the House has no security of entering into this Debate till a Question be to admit the Debate. 'Tis our right to demand a Question, and when we are under such a vote, we are under the protection of the House. 'Tis said, "that the Question of Prorogation, or Adjournment, will be brought in by a consequence of the Question of naming Committees:" But, possibly, that argument afterwards will not be suffered to be used. 'Tis but on the word now of a few, and by the Question of "Prorogation, or Adjournment," every one may have security in what he shall argue, for the future.
Col. Titus.] Knows no way to be resolved of this, but by a Question. It was no doubt. Why none, before concluded—We read no Bill of the last Session, because we proceed not were we left off before. 'Tis a doubt still—Some say it is not fit to be a Question; which shows that the thing is not determined. 'Tis objected that we have leave to go on, but 'tis true by a gentleman only that has given leave; but did he fear his own censure only, he has no cause to fear. 'Tis said, in the Lords House, it was debated; and there must be a Question, unless we shall conclude the doubt without a Question.
Mr Hale.] He has no reason to believe the matter so formidable, or intricate, but that gentlemen, upon Debate, may bring it to light. To name Committees before the Question, makes the Debate precluded. In point of safety we cannot go on, unless we have the warrant of a Question. We hear the Lords are committed for debating this matter, and closely (fn. 2), and he knows not what farther may become of them. No man will say that he believes it against his duty to argue the point, but knows not what construction may be made of it without a Question—Therefore moves for one.
Sir Henry Capel.] Thinks it necessary we should have a Question—Some apprehend a Question for fear of precluding the Debate; others are cautious not to enter such a Question into the Journal; others for liberty and freedom of Debate. He offers this Question, to reconcile all—"That Sacheverell may go on in his Debate."
Mr Williams.] Some men are cautious, he finds, and tender for any footsteps of this doubt upon our books. Others are the same for freedom of Debate. He moves for a Question, not only of the validity, but irregularity of the Prorogation.
Sir Thomas Clarges.] We must have some Question stated. Moves that it may be this; "That the House being moved about the validity of the Prorogation, and some Debate arising thereupon, the Question may be, whether we shall proceed upon that Debate."
Mr Garroway.] Knows the time when the House tacitly resolved a money Bill, and it being not sent up to the Lords, soon after changed their minds. We may be so used now, and would have security of a vote therefore, to enter into this Debate for our freedom.
Sir Thomas Littleton.] As to the Lords judicial proceedings, Prorogation, and Adjournment, is the same thing. Persons are anew summoned in an Adjournment, that have causes depending before them. As for the dissolution of this Parliament, by this long Prorogation, no man has it so much as in his thoughts. The matter is only for the different effects of Prorogation and Adjournment, wrapped up in ambiguous terms. Thus gentlemen are not secured by your vote, and that is hard.
Mr Garroway.] Is sorry that Vaughan and others will only have a vote for Sacheverell to proceed in the Debate. Pray then let every man have a Committee appointed to determine what every gentleman has to say, and then you may order it as you please.
Sir William Coventry.] One man may say, that we meet by an Adjournment, and another not; no man can see what all the House can see; and it may be, it may prove neither one, nor the other, but dissolution, when 'tis examined. He has heard say, that formerly there was some suspicion of the cieling above the House falling down, and all the House ran out of doors. Was it then prorogued, adjourned, or dissolved? Upon that the House was judge, and he desires only a fair Debate upon the thing.
Lord Cavendish.] One ill effect of this long Prorogation is, that you, Mr Speaker, have forgot what you ought to do, in your place, in stating the Question; which is not "for the naming of Committees," but the general Question "whether we shall proceed upon the Debate of the Prorogation, or not."
Sir Thomas Meres.] He has told you that the Prorogation is against two laws, and another gentleman has entered into the Debate. Having named it, you, Mr Speaker, once stated it, "whether we should go on, upon the Debate of the validity of the Prorogation." The Question is, "whether we shall proceed"—Now you are gone from that foreign matter of "naming Committees", you may as well go upon the Bill first read—But the case is now changed, and very much changed, upon the Speaker's changing the Question. He is not for Apocrypha, or unwritten tradition, of leave to go on, without a Question. He is for Scripture, and would have the matter written—And now you give us quite another Question "of naming Committees." He commended the Speaker for stating the first Question, and he received his commendation, and admitted it; and he never commended the Speaker without cause—You, Mr Speaker, having changed the first Question, he fears another change, therefore he is for the Question.
Sir Thomas Lee.] One tells you, "that yesterday the Peers debated this new matter, and resolved, and some of them were committed to the Tower for that Debate." (Would be glad to be mistaken in the matter.) But 'tis a good caution for our Members to be assured of freedom of Debate. Should that fall out, he fears that Sawyer will not make the Prorogation so good as he hopes he will. No man has waved or doubted his right of Debate. But would have it cleared what negative, or affirmative, can be given, before the matter of Prorogation be resolved.
Sir Charles Harbord.] Will not say that the Prorogation was convenient, but thinks it legal. He could have wished that no Question had been made of it, but since it is, would expect a resolution, since 'tis thought necessary to debate it here. There is no Question, whether by an Order, this Debate shall go on for better security. Put what question you will propose, 'twill come to the same consequence, affirmative, or negative.
Sir Thomas Littleton.] Vaughan moved this of naming Committees, as an expedient. But 'twas not the first Question proposed—Asks the Speaker, upon what account the first Bill was withdrawn, but upon this dispute?
Sir William Coventry.] You are reduced now to what Question shall be put. He'll remind you, that 'twas the general intention, that naming of Committees, and reading Bills, should be postponed to this Debate. No other Question is sufficient, or can bring us to our end, but that of the Prorogation, &c. If you lay aside the Debate of the validity of the Prorogation, and go on to reading Bills, and naming Committees, if any man upon that will enter into the validity of the Prorogation, you are precluded. But an avowed Question is, that the validity of the Prorogation may be debated. If we have any Question short of that, we are not at all safe.
Sir Winston Churchill.] Thinks himself not so vain as to be able to satisfy any other gentleman, by what he shall say in this matter. 'Tis but his own reason only. He hears from gentlemen, whose integrity he has as little reason to suspect, as their understanding, that they are possessed with the same fear others are, and proffer this Question as a security to them, not to be ensnared in the debate. If then it be so, we ought to be cautious how we give it. For 'tis a kind of engagement to steer by—What shall be the result of this Debate? The law respects inconveniences before mischiefs, should it so fall out that the matter is too high for this place—But there is no doubt of freedom of Debate, which is our birth right, but not freedom of speech. Suppose the Question pass, that 'tis a good Prorogation, and gentlemen are over voted, but not over reasoned, and they think they cannot act as a Parliament, and so withdraw—(He has seen a great part of the House go out upon the miscarriage in a vote, and thereupon the odium has been laid upon those that staid in, and they have had the blame of he dares not say what.) And they should go away home—Who must bear the burden of that? In this we are not judges of the King's prerogative, and we know not what exceptions may be taken—Suppose the King lay up some of our Members for meddling with his prerogative—Then how far are we engaged to justify our Members in what they say? Wishes it were debated.
Sir Eliab Harvey.] If the Question be, whether the Committees shall be named, he cannot give an account how he gives his vote. If we vote that Committees go on, where they left off, we agree it a good Adjournment—He is not satisfied which it is, but is satisfied that 'tis one of these, Adjournment, or Prorogation.
Sir William Coventry.] We have been debating two Questions, naming of Committees, or whether we shall debate the validity of the Prorogation. If it pass in the negative for naming Committees, then the next Question must be of the validity of the Prorogation; if that be so, he is ready for the Question.
Sir Thomas Lee.] In 1640, the method of the Journals was altered, when they would obscure what he hopes will never again be said here. If all (as formerly) was entered into the Journals that was said upon Debate to day, then gentlemen would not be misrepresented, and these apprehensions that we have upon us might be spared.
Sir William Coventry.] He thinks this business now much more weighty then he at first apprehended it, because it sticks so much upon the Speaker's hands in stating it. We go to look for our security in this Debate, and you tell us 'tis not to be found. We would have it in scriptis, that it may be found upon occasion. Now the matter is changed since yesterday. Now gentlemen are doubtful of their security, from something without doors, (from the Lords House) which prompts them the more to it. We cannot debate it without an Order, not only under the security of transitory words, which we forget who says—And according to Order we desire it. But he is so contented to come to a resolution, that he will rather submit to any Question, so that the rest of the Questions are not thereby secluded: And so we put out to sea again. 'Tis a right that ought not to be denied us, that, after the previous Question is past, then that Question of our security in the Debate.