Grey's Debates of the House of Commons: Volume 5. Originally published by T. Becket and P. A. De Hondt, London, 1769.
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Saturday, February 9.
Sir Thomas Clarges.] Lord Coke, in his Institutes, speaks at large of Adjournments of Parliaments; where he declares the House of Commons to be a Court, and says, "That Adjournment of the House is not the single Act of any one person, but of the whole Court. Prorogations and Adjournments were formerly convertible terms (as he tells you) but altered since. That of Adjournment is always by general consent of the House, and if any one scruple arises, the Speaker cannot adjourn till it be removed, and the method is so in both Houses of Parliament." I did enquire whether the Lord Chancellor, in the House of Lords, did ask the Lords pleasure, whether they would adjourn? And he had it in direction from the Lords to adjourn. And in one of the late Adjournments, the Lords had a Writ of Error recorded before they adjourned. The Lord Chancellor is a man of great experience, and learned in Parliament affairs, and would not do contrary to the Lords commands, which he received. Now, whether will you read those Records, which, you say, Mr Speaker, will satisfy us in your proceedings? I would either have it done, or refer them to a Committee to examine the authenticity and weight of them. And I move that the Lawyers may be sent for from Westminster Hall, as is usual in such cases. There is one learned Gentleman has studied the point, and may be of great help to us.
Sir John Ernly.] I hear this House called "a Court" by the Gentleman who spoke last, but we are no Judicature, we cannot give an oath, our Clerk is but Subclericus. The Lords Clerk is Clericus Parliamentorum. Full Parliament is "a Court." If any Gentleman has searched precedents, I would have them produced. Else we must sit down with the Speaker's precedents.
The Speaker.] I had not all my precedents when this matter was last touched upon. I have since searched farther; and 'tis the Doctrine I have learned from my predecessors, that when the King commands an Adjournment of the House, 'tis your duty to obey it, without any matter intervening; and till you declare the contrary, I shall continue to do what I have done formerly. If it be your pleasure, I shall open the nature of the thing, and leave it to your consideration.
Sir Phil. Warwick.] A thing you would not have debated I will not begin to debate, since it is the King's authority. Consider the nature of the thing, whether the King cannot adjourn this House at his pleasure; and, after that, whether you can enter into any Debate. I would see precedents of the thing, as has been moved, and those Records, the Speaker says, he has, to justify himself in what he has done.
Sir Thomas Meres.] I observe, that when a troublesome matter comes before the House, and is once put off, it is seldom taken up again. But now we are come to our day, and we begin to debate it. I will wholly wave the present Debate of the King's Prerogative. This matter of adjourning the House is a question very requisite to be determined, which way soever it be, and I would by no means have you let it go, but settle it. I desire that those who are conversant in things of this nature, may be sent for, to attend, and the Mace sent to call them up. And, I hope, in an hour or two, to find it a very clear case. Prorogation is not the point in question, and if you debate what is convenient, there will be no end of that; but let us go upon Custom of Parliament, which is the easiest way, and the matter will be quickly decided.
Mr Powle.] I allow the King's Prerogative to call, adjourn, and prorogue Parliaments. The Question is not that, but the manner of exercising that power. That being premised, I conceive this is the right, and ought to be, of the House, adjourning themselves. Calling and dissolving Parliaments is an Act relating to the Government of the nation; but adjourning the House, from time to time, relates to the affairs of the House, and is lodged in the House; and ought not to be communicated to the King, but by the mouth of the Speaker. 'Tis a power always to reside in the House, who know best how their affairs stand, and may be very inconvenient if in the King. The way of doing it by the King, is either by himself in person, in pleno Parliamento, or it is done by Commission, or Writ, under the Great Seal, and no private Message by the Secretary, or Message under the Signet is of authority to adjourn us, unless in pleno Parliamento, as I have said. The King cannot call a Parliament under his Signet, nor any other way but by his Writ, under the Great Seal. Though the House does take notice of Messages from the King, yet we are not bound by them. It has been said "we are a Court," but the powers are diminished since the two Houses separated themselves; though I can bring several precedents that we are a Court of Record. I take the Lords House, and the Commons to be but one Court in judgment of Law; and that is the High Court of Parliament. It must follow then, that the King must adjourn the whole Court; either he must take the whole, or leave the whole, as in the Courts of Westminster. If the King should adjourn the House of Commons, and leave the Lords sitting, or the Lords, and leave the Commons sitting (their actings mutually relating to each other as to the Legislature) it would breed a confusion; and no man knows how far the Lords Court would extend itself upon lives and estates. Little now is left farther to be said; for if the power of Adjournments be not in the Crown, it cannot be in the Chair. The Speaker is called "The mouth and tongue of the House," which speaks the conceptions of the mind. Not that he is to make those conceptions, but pronounce what he has in command from the House. Lenthal, the Speaker, (upon an occasion known to most) told the late King "He had neither tongue, eyes, nor ears, but what the House gave him." And having said all this, I think I have showed you some kind of reason for my assertion, that 'tis the right of the House to adjourn themselves. Now how this matter of Adjournment has been in practice; I am not so well versed in precedents, as other Gentlemen. I have a book in my hand, of all the main precedents in Rushworth's Collections, which I shall rather make use of than those in particular Cabinets. In 3 Charles, the King sent a Message to the House, not to adjourn the House for the Easter Holidays, which by reason of the departure of many Members they intended to do, but to continue sitting. Sir Robert Philips excepted first against this Message of non-recess, and took notice that in the 12th and 18th of King James, upon the like intimation, the House resolved that it was in their power to adjourn, or sit, and moved for a Committee to consider thereof, and of our right herein, and to make a declaration; and accordingly it was appointed. And resolved, that it being now yielded unto, in obedience to his Majesty, it might not turn to prejudice in time to come. Sir Robert Philips and Sir Edward Coke both urged then, that the business of the House is always done by the House itself. Coke then cited a case of a Corrody, &c. The King sends his Writ for a Corrody to an Abbot, for a vallet; if it be ex rogatu, though the Abbot yields to it, it binds not, but if without it, the Abbot is charged by such a pension, for life of the vallet. So Coke desired that the Adjournment of the House might be entered upon the books, "Ex rogatu, non ex mandato, Regis."
Mr Powle answered.] Those in private hands agreed with Rushworth,—and proceeded. In the 18th of King James, the King had a a mind to adjourn the House by Commission; some then checked it in the House, for they found the Commission was not directed to them; and therefore took no notice of it, but adjourned themselves. The next thing I shall mention is the strongest case of all, though not in all respects; and that is the case of Lord Finch. The declaration, and causes of dissolving that Parliament, which he was Speaker of, and the whole matter is in print, which sufficiently justifies me in the precedent. The 23d of February the King sent to the House of Commons to adjourn themselves for ten days. (The House was then in a Grand Committee) The Speaker signified the King's pleasure, and asked leave of the House to attend the King as he had commanded him; they gave him leave. The Speaker then delivered the King's command of adjourning the House, without a Question, or admitting any farther Speeches. Sir John Elliot then presented the House a remonstrance against the Lord Treasurer Weston, to be read. The Speaker then leaped out of the Chair, (as you, Mr Speaker, have several times done) but offered not to adjourn the House, but would not suffer any man to proceed, and refused to put Questions, and alledged he had the King's command for it; for had he supposed himself in that power, he needed not to have refused to put Questions, but might have adjourned the House without a Question. Then a long time intermitted, till that Parliament, called "the three weeks Parliament," met. And although an intermission of 12 years, and Finch was removed into the Lords House, yet the thing was revived, and debated. That short Parliament was much better than that which succeeded, for the House then consisted of learned and worthy men, and therefore I lay the more weight upon it. And if the King had complied with that Parliament, much of the misfortunes which afterwards happened, might have been prevented, in all human probability. The Vote they then made, was "That the Speaker (Sir John Finch) refusing to put a Question, being thereunto required, or to adjourn the House upon any command whatsoever, without the consent and approbation of the House itself, are breaches and violations which highly impeach the Privilege of Parliament." When the King had made a verbal command of Adjournment, and signified it, and no Adjournment shall be made; I dare venture the cause upon that issue. The Long Parliament came after, and Lord Finch was impeached the 27th of December. Whilst the House was in Debate upon the Impeachment, Lord Finch asked leave of the House, and obtained it, to make his defence, and made the Speech in the printed paper. This was done very early in that Parliament, before any disturbances began, and, without Question, that was an assembly of knowing and learned men. And his Adjournment of the House by the King's command was voted a crime, and was the second Article in his Impeachment. For the Speaker to forbid a man to speak, is an offence of a high nature. For if that Speaker could have pretended power of Adjournment, he might have done it, without forbidding Gentlemen to speak. The Lord Keeper made this apology for himself, amongst several others in print, at large, "Humbly to beseech you all to consider that if it had been any man's case, as it was his, between the displeasure of a gracious King, and the ill opinion of an honourable Assembly, he beseeched them to lay all together, lay his first actions with the last, and he would submit to the honourable construction of the House." Now for a more recent precedent, you will find in the King's two printed Speeches in the Convention, (though that was no Parliament) yet one very like it. The King sent to the Commons, when they had passed the Act of Oblivion, to adjourn themselves, and the King, in his Speech, then did direct them to adjourn. The King could not think he had it in his power, he might else have as well done it then himself. In 1670, the King tells the Commons, "because they had been a long time from home, he was content they should adjourn themselves." October 26, 1677. The King, in his Speech, says "he intends the House of Peers may, and the Commons may adjourn themselves. Whoever advised the King to do that, took it not for the King's Prerogative to adjourn the House, but for the House to adjourn itself; and so it would have been the last time, if the House had been let alone by the Speaker. The House of Lords has a Roll of Record of their standing Orders, and amongst them there is one "That the Chancellor shall not adjourn the House without Order from the House." You may remember, Mr Speaker, that Motions were made for printing your Speech, and it was debated, and all that, after the King had signified his pleasure of Adjournment of the House. This is all that I have to say in this matter. I have only opened it to give occasion to the Gentlemen of the Long Robe to inform you farther, that the thing may be set right.
Mr Sacheverell.] This Debate began first upon a charge in writing that I, some time since, delivered against the Speaker (fn. 1). The Question now before us is not betwixt the House and the Crown, in matter of Adjournment, but betwixt the Speaker and us. I have sought writings and records, to justify the right of the House in this matter. I am willing to part with that charge I brought in, and since the House has waved it, I shall do so too; and will acquiesce in what the House shall determine.
Sir Tho. Meres.] As Powle has mentioned the constitution of Parliament in precedents from sixty years downwards, I would yet come lower. He said, "As the Lords have thought good not to be under that difficulty of Adjournment by the Chancellor, so we may be set out of it also by the Speaker, and may declare that the House is not to be adjourned without their own consent." If the point be so put down upon your books, our day of Debate upon this matter is ended, and the thing rests quiet. Every Act here is by the consent of the House, two ways; 'tis had either upon the Question, or by common consent. If entered, "Ordered, upon the Question," then it has been a Debate. If the thing pass by common consent, 'tis entered, "Ordered," only. So for Adjournment, if no Question of it be made, then 'tis very frequent for the Chair to order it upon the universal cry, "Adjourn, Adjourn." But if the Speaker be moved for a Question, he cannot deny it. The thing itself is sufficiently declared when no man contradicts it. Generally the thing is thus entered by skilful Clerks; possibly new Clerks may do otherwise; yet they should not. The 20th of December 1661, after the House was called up by the Black Rod to attend the King, who signified his pleasure of Adjournment, the House came down, and resolved upon matters to be done at their next meeting, after that Adjournment was signified. The King's pleasure of Adjournment does but signify that day; but so that no minutes must be spent to set your House in order cannot be the intention. As if a Member should be beaten, coming from the Lords House hither, will you not consider that breach of Privilege? When the King signifies his pleasure of Adjournment, it is not to be refused, and no Parliament will ever refuse adjourning. In 1661, the Adjournment was entered into the books, upon the Question put, and the House adjourned, &c. by the consent of the House, which the entering the Question plainly shows. In 1668, after the King's pleasure signified of Adjournment, the House adjourned itself; though it was not entered "by a Question," yet it is "by Order," which implies consent. The 1st of April, 2 Cha. I. the King desired the House would adjourn, and they debated the reason of it, and they divided upon the Question, though it was carried as the King would have it; and the Speaker adjourned the House accordingly. These precedents are all plain upon your books.
Sir Thomas Meres goes on.] What I say is for the interest of King and Parliament, and I would have the Question easily wound up, as the Lords have done, viz. "That the House is not to be adjourned by the Speaker without their own consent."
Mr Mallet.] The great Minister of State, the Earl of Clarendon, once attempted to have all powers involved upon a Committee of Lords and Commons, upon pretence of a Plot, which was plainly for setting up a standing Army; and what the King did was by the instigation of that Minister. I desire, that the Order moved for, which the Lords have made, may be a standing Order, and as perpetual as that of the Medes and Persians.
The Speaker.] I have taken out of the Journal-books what I shall represent to you, in this matter of Adjournments, and leave it to your consideration. Prorogations and Adjournments may be done by the Great Seal, the King absent, by Commissioners; and, by the King present, "ex mandato Regis." Adjournments from day to day are sometimes by the desire of the King, and sometimes by the desire of the House. That of Adjournment by Commission is a Prorogation to some uses, though not to all, all Bills remaining in statu quo, &c. and all Committees ceasing, and Privilege also. If the King be present at the Adjournment, 'tis then entered into the book, "ex mandato Domini Regis." In Edward I's time, the Commons desired to consult their Country upon an Aid demanded, before they granted it, and they were adjourned by the King. When that King was absent, they were adjourned by the Queen, and the Chancellor, and all Bills were left instatu quo. But not Committees. No entry is made, in the Lords Journals, of the Houses adjourning themselves from Ed. VI's time, and from Henry VIII's time, to the end of the Long Parliament by a Question. No entry is made of the Commons Adjournment, unless when the King commanded the Adjournment, as in the case now before you. In King James's time, the ordinary Adjournments, from day to day, were not entered into the Journal. That of the 12th of King James was not a Parliament, for nothing was done in it; no Bills passed. But in that Journal there are no footsteps of this matter. In the 13th of King James, all the King's Adjournments were made by Commission, and then the King signified his pleasure of the intended Adjournment. The House of Commons were dissatisfied with it, and desired to sit sometime longer, till the Bills before them were brought to some perfection; the Commons sent a Message to the Lords, to join with them in a Petition to the King for leave to sit longer, and the Lords refused to join with them, and declared, "that the adjourning, calling, and dissolving Parliaments was the sole right of the Crown." But, at a Conference afterwards, they acquainted the Commons, "that, by this Adjournment, the King had declared to them, that the Bills depending in each House should not be cut off by the Adjournment;" and the Commons rested satisfied. But King James told the Commons, in harsh terms, his dislike of their proceedings, and commended the duty of the Lords. The Commission then for adjourning the Parliament the Commons avoided reading in their House, because not directed to them, but they obeyed the King's pleasure in adjourning, though not by that Commission; and several Adjournments afterwards succeeded one another. But 'tis noted in that Journal, "That a motion being offered for Writs to issue out to supply vacancies, the House refused to make any Order in it, being to adjourn, and would hear no motion that day." I speak this to show that no Question was ever put, nor business ever done, after the King's pleasure of Adjournment was signified. 1 Charles I. The Lords sent to the Commons to come up to the Lords House, to hear the King's Commission of Adjournment read. The Commons sent the Lords this Answer to their Message, "That 'twas according to ancient precedents, that the House of Commons always adjourned themselves." Now the Question was only, whether the Commons should be adjourned in the Lords House, or here; and the Commons then adjourned to Oxford to the first of August. 3 Char. I. The Speaker brings a Message from the King, to require the House to make no farther proceedings in business, and that the House should adjourn all Committees; and the House was adjourned accordingly. A Message was sent from the Lords, by Mr Justice Hutton, and Mr Justice Jones, to signify "that the King gave leave to the Houses to sit a few days longer, to perfect the Petition of Right, and the Bill of Subsidies, and that they might go hand in hand." I speak this to declare Adjournment, by Commission, to be in the nature of Prorogation. 5 Char. I. Feb. 25. A remonstrance was prepared by some Members, after an Adjournment of that day to the second of March, which being proposed, Sir John Finch, the then Speaker, said, "He had a Command from the King to adjourn the House to the 10th of March," and put no Question of Adjournment, and refused to put any Question. Mr Secretary Coke delivered the Message of the House adjourning on Wednesday the 25th of February, till Monday the 2d of March, and the Speaker adjourned the House accordingly, without a Question, or particular command from the House. The House being met according, to that Adjournment, some called to the Speaker to put the Question about the protestation, or remonstrance. He refused to put the Question, and proffered to go out of the Chair, and the riot thereupon followed. The Little Parliament, in 1640, was not a Parliament in Law, having done no Act. Though a Parliament met not till ten years after, they fell into examination of the breach of Privilege, the last day of the sitting of the former Parliament, by the Speaker. The matter of fact was stated, and the House came to a resolution in this Vote, "That the Speaker, (Sir John Finch) refusing to put a Question, being thereunto required, or to adjourn the House upon any command whatsoever, without the consent and approbation of the House itself, are breaches, and violations, which highly impeach the Privileges of Parliament." I observe, that the House was then possessed of a Debate, and the Speaker refused to put a Question, and that was the thing complained of, and the particular Article relates to nothing else, but the matter of fact depending in the House; and I make no Question, nor ever did, that when the King commands an Adjournment, 'tis the Act of the House, and the Speaker can do no otherwise. But this always has been the form of doing it, when the King commands you to adjourn, and 'tis because you receive the King's command, and execute it after another kind of method than other things are done. The King sent a Message to the House, by the Attorney General, and a Question arose how the Message should be received: The Attorney was ordered to come to the Bar, and the Speaker and the House to be bare during the time of the delivery of the Message, that no disrespect should be given to the King's command. No man that is not a Member, but is called into the House by a Question. But it was never known that a Question was ever put for calling in the Black Rod, the King's Messenger. We met here, upon an Adjournment, and there was a motion for a Writ to be issued out to fill up a vacancy, and you ordered no Question to be put, the Black Rod knocking at the door. I say all this to show, that, in receiving the King's command, and executing it, it is not done as in other cases. For Adjournment, upon the King's command, there is never any Question put, because the obedience to it is never doubted, and where there is no room for a doubt, there is none for a Question. "The King commands the House to adjourn, and they will not"—There is no precedent of any such thing. A Gentleman did rise up to speak, when I adjourned the House, and all the House called out, "Adjourn, Adjourn," and none "Not adjourn." I think I did then what I ought to do, in adjourning the House, and shall do it again, till I am otherwise ordered by the House.
Sir Thomas Meres.] April 5, 2 Charles I. The remonstrance was read. Significanter, the Chancellor of the Exchequer reported to the House, "that 'twas the King's desire the House should adjourn for a week, as the Lords had done, for the King could give no present answer to the remonstrance, and that the Lords and we then might meet, and repair the time we had lost." Upon the Question twice put upon the Message the House divided.
Lord Cavendish.] Since, Mr Speaker, you have overheard what I said, viz. "that part of your discourse amounted to nothing," I will give you my reason for it. If you had not adjourned the House the last time, the next Question would have been, to put another in your place. I was at the first against bringing a charge against the Speaker, but I desire that the Privilege of the House may be asserted. I thought, Mr Speaker, you yourself was once of another opinion. In the last April Adjournment, when the House came from the Lords, a Gentleman moved, "That the Speaker might print his Speech, which he made at the Lords Bar." You, Mr Speaker, did not say then, "That no man could speak, after the King's pleasure of Adjournment was signified." You made a modest reply, but said not, "That no man could then make a motion."
Mr Powle.] That precedent you mention, Mr Speaker, of 2 Char. I. shows no difference then between the Speaker and the House about Adjournment; you seeming to put by the blow, by that precedent. Had the Speaker then adjourned the House, there had been no room to call for the Question. But take the Vote in Sir John Finch's case, 'tis one thing what is done ill de jure, and another out of respect to the King; and in that I would go as far as any man. But for the Speaker to adjourn the House de jure, may be dangerous to the very Government. If you will observe that declaration for dissolving the Parliament of 5 Charles I. it tells you the Speaker took the command, &c. from the King, and he cannot do it by a verbal command, which does not imply that the King cannot do it by Commission. The King made his command of Adjournment, in May last, to the House, and not to you, Mr Speaker; and that I insist upon.
Mr Secretary Williamson.] Though this is not immediately the King's Prerogative, yet it stands upon the confines of it. This point must not be upon matter of convenience, but perfectly upon matter of fact. We have heard precedents from learned Gentlemen, and from yourself, Mr Speaker, there are many, but if the Question be rightly stated, and one word taken into it, viz. "immediately," no one precedent comes up to it. But when the King's pleasure is signified of an "immediate" Adjournment, nothing intervened of Debate in the House, and it was not executed by a Question. The whole hinge of the thing depends upon that single word. 'Tis no doubt nor Question, but that Adjournment is the single Act of the House, but no business is to intervene before the Adjournment. It appears by all precedents, when ever the King has signified his pleasure of Adjournment, the House has done as the King directed, nothing intervening. I hope, that, as this is the Authority of the Crown, you will not make an order to take any of that power away, therefore, in order to the Question, it may pass, so as it may not be construed hereafter to take the power out of the Crown; that Adjournment may not stand in opposition to Prorogation, and not leave the Government lame & impotent, in whatever emergency may occur.
Mr Waller.] In the word "immediately" the King is extremely concerned, and more than the House, and I see not, without this Question, how the King can be obeyed. If the Adjournment is "immediately" to be made upon the King's command, then 'tis to be done sine medio. But yet the Message of Adjournment was not sent to the Speaker, but to us, to adjourn ourselves; so that if the Speaker does it, without direction from the House, we cannot obey the King, and I say it for the King's sake. The Schoolmen say, "God cannot make a thing to be and not to be at the same time." This freedom of speech here could never be taken away. If a man be speaking, and the Speaker will not hear him, this is not to hear the House speak. The House is adjourned either by general consent, no man opposing, or in order to it, by a Question, and if we cannot speak after signification of the King's pleasure of Adjournment, we have no way left of complying with the King's desires. Plainly, in a Prorogation of the Parliament in the Lords House, the Lord Keeper says, "My Lords and Gentlemen, 'Tis the King's pleasure to prorogue this Parliament;" but then we are nothing but passive; we are not so in an Adjournment. Great bodies must be moved with great majesty. In the Act of recognition of the King's title, in King James's time, one Bishop gave a great No to it, and it had like to have cost him his life—That instance given by the Speaker, of the Black Rod knocking at the door, is a perfect mistake, for in that we are perfectly passive. We were called by the King to dissolve us, in the Little Parliament before the Long Parliament. The King calls us to the Lords House, and we must go. But in this of a Command to the House to adjourn, the King bids us be active, and shall we disobey him? As to the word "immediately," it is a new word, and if new words should throw away old Privileges, we shall never want new words, and we shall want old Privileges. In this Question we are now in for all we are worth, and should it go to the people's ears, that we that represent them are all shrunk into the Chair, and that the Speaker only represents the Commons of England, they would not think themselves secure of their lives and fortunes, and would very hardly raise the money you intend. If the Speaker be bigger than us, what bulwark are we of the lives and fortunes of them that sent us hither? You, Mr Speaker, may be mistaken, and so may the House too, and I would willingly pass it by as to the crime in the Speaker, and put the other Question of securing our Privileges.
Mr Finch.] I conceive that when the King is in Parliament, in Person, or by Commission, he may adjourn us, and that, to all intents and purposes, in some sense, is a Prorogation; but I think the King cannot adjourn this House alone, without the Adjournment of the Lords also. For every Commission of Adjournment, or done by himself, in his Royal person, is in Law a Prorogation, and all business ceases. 14 Queen Eliz. The Commons were sent for to the Lords House, where the Custos Sigilli privati adjourned the Parliament, and you will find the Adjournment entered from May to June. But though "Custos Sigilli privati ex mandato Dominæ Reginæ adjournavit Parliamentum," I cannot conclude from thence, that, because the King cannot call a Parliament by the Privy Seal, yet by single command the Lord Chancellor, or Lord Keeper, &c. may not adjourn the House. From the reason of the thing done, 'tis your duty to obey the command, and 'tis no way derogatory to your Privileges. If a Question be put for an Adjournment, it is no Adjournment, till the Speaker pronounces it. You cannot adjourn yourselves above an ordinary time, without the King's leave. We are called by the King's Writ, and should we adjourn the House for a week, or a month, and the Lords do not adjourn, the confusion would be great; and to prevent it, our obedience to the King's command is necessary. Therefore in the King's printed Speeches, the King gives us leave, he directs it, and his consent to it infers that the King's leave is necessary. When Sir John Finch refused to put the Question, for reading the remonstrance against the Lord Treasurer Weston, he was held in his Chair, and how could he adjourn the House when held in his Chair? The present Debate is upon this point; whether, after the King's Message to command us to adjourn, we can proceed to debate any business? I believe we cannot. To that objected of "A Member's being beaten in his return from the Lords House," I thus answer. If Adjournment be but one day in Law, when the House meets again they may redress that violation of Privilege. Suppose the King sends a Message to the House to adjourn at such a time, and in confidence of that Adjournment, Gentlemen go into the Country, will you put it into the power of any Numbers of Gentlemen about the town to keep on Debates, and proceed in business? If so, it will always necessitate the King to Prorogations, and not Adjournments, and so cut off all Bills and business depending, and at your next meeting you must begin all again.
Serjeant Maynard.] I am sorry to hear things put in this Debate neither for the advantage of the Crown, nor this House. By the Debate, the matter is thus: The King's pleasure of Adjournment, being signified to the House, the House must immediately adjourn, without proceeding farther in any business whatsoever. I have attended all the precedents the Speaker has cited, with great care, diligence, and fidelity. I find not, in any proceedings, after King James, this case put into the books in terminis. But we speak not now of the King's power of adjourning and proroguing the Parliament, which is always done by Record by the Great Seal, or done in the Lords House, by the King in Person, where it is entered as a Record. The power of pronouncing the Adjournment is certainly not in the Speaker. If it were so, black may be made white, and white black. May not the House, in great humility, after the King has signified his pleasure of Adjournment, offer him reasons for sitting a longer time? And how can you do that, if Adjournment must be made "immediately" upon signification of the King's pleasure? There is no way of adjourning or dissolving the House but by Record. I am bound, as I am the King's Serjeant, by oath, to maintain the Prerogative, and I am under another obligation here, as a Member of this House, to maintain your Privileges, which I will do with my tongue. If this be, shall the House be adjourned, and not adjourned? Shall the Speaker do it, and the House not do it? When the King opens a Parliament, what does the Speaker first crave? Liberty of Speech. The King calls us, by Writ, Nobiscum consulendum, and how can treating be without speaking? The case may be of such an importance, after Adjournment signified, as to induce an humble Address to the King from the House; and how can that be done, if the House cannot speak? I have heard say, in former times (though not in so good ones) "What if the Speaker have a dormant Message to adjourn the House?" I am obliged to speak what I have done, come what will come of it. If the whole House conclude the thing, there is no wrong done. I have sat here in several tormenting Debates, and never so unnecessary as when started between the King's Prerogative, and the People's liberty, which I take not to be the true state of the Question before you.
Mr Sollicitor Winnington.] I am obliged to maintain the King's Prerogative by the place I hold, and the Privileges of this House as a Member of it. I will first state that which we all agree to, and then that wherein we differ. The King's Prerogative is undeniable, of adjourning, proroguing, and dissolving of Parliaments. The Lords House is a Court of Record, as to Writs of Error, &c. This House is no Court of Record, because it can give no oath, but I am unwilling to say what this House cannot do. The present case is a tenderness about our Privileges. All are satisfied that the Debate concerning ourselves is not worth the while—As to the King's power of Adjournment, &c. he may do it in Person, and by Commission; and that Adjournment will be to your disadvantage, as many learned men say, "it amounts to a Prorogation," and so you may lose the advantage you now enjoy by adjourning yourselves, by the King's command. I find the matter thus stands upwards of fifty or sixty years. 'Tis hard to find any Adjournment by the King's command, but always by the Great Seal, by Commission under the Broad Seal, not by way of Message, the King speaking then by Record. This Adjournment by Message is for expedition sake, Though several ages may differ in form, yet the rule of right is still the same. Many times a Message of Adjournment is sent by sign manual only, to prevent the ceremony and state which (being done under the Great Seal, in the Lords House,) it would occasion. The King's pleasure, under his sign manual, is represented as a Summum jus, and to be obeyed as a matter sent by the Great Seal, for in half an hour's time the Great Seal may be had to do it. I find that Mr Waller puts great weight upon liberty of Speech, and says, "Would you have the House melt their Privileges into the Speaker's Chair?" 'Tis possible you may not adjourn upon the King's command, but 'tis probable you will, because the King in a short time may compell it. If this Question be put, that has been proposed, it must be for some good end, or to some purpose. No ancient Parliamentman can say that ever such a Question was proposed. I fear it will prevent good Correspondence betwixt the King and us. To say that the Parliament is willing to sit some days longer than the King has signified they should, looks as if we would take a liberty to do what the King would not have done, and so the consequence must be the Adjournment by the Great Seal, (and not by Message) or the King in Person. Therefore I press for a good correspondence, that we may always comply with the King's Message for Adjournment, having always done so. As for Sir John Finch's case, should the Speaker say, "He had a Message from the King, and he would adjourn the House," or say, "That he had a private command from the King to do it," there would be no end of that. But when the King sends a Message for Adjournment, under his sign manual, when was it ever denied? All that I propose is that jealousies may be laid aside betwixt the King and Parliament. The manner of the King's proceedings in these cases is not as between man and man; which makes many a plausible argument in this case fall to the ground. The thing was never contradicted, and we argue but for what is not tanti. It looks as if there was a difference betwixt the King and Parliament, and I would have no Question put upon it.
Mr Williams.] Though I have not a Gown on with Tufts, (reflecting upon the Sollicitor's Gown,) and am in no office of the Crown, yet I am bound as much by my Allegiance to preserve the Prerogative of the Crown, as if I had. 'Tis agreed on all hands, that the King may adjourn, prorogue, and dissolve Parliaments. So there needs no dispute of Adjournment and Prorogation; 'tis well understood, so that the King cannot adjourn one House, and suffer the other to sit. Every step the King makes in an Adjournment, is matter of Record. The King may adjourn the Terms, but it must be in form regularly, by Writ under the Great Seal, read in the Court sitting, and then the Adjournment is pronounced, and nothing can be done afterwards. But this is still by matter of Record. But consent is implied by it, express or tacit. That which provoked Gentlemen at these last Adjournments was, that several Gentlemen stood up to speak, and the Speaker would not hear them speak. I am for the Question.
Col. Birch.] Those that spoke most to the point have industriously avoided the sore place, relating to the King's power. But if this matter perpetually must be a difference, the argument goes the other way. 'Twas told us, upon making our last Address to the King, "That there was no such thing ever done, but when swords were drawn;" but we might then have showed precedents of such an Address, if they had been required. Had we then presented the King with these precedents, to clear ourselves in that matter, we possibly might not have had such a Message at last. Suppose any Gentleman can tell us of any exploit of the French King, and an Adjournment is commanded, must we not debate it? The word of "adjourning immediately" has been used but twice in my time; and I am always jealous of a new word. Must the King and Kingdom be in danger, and we not debate it? No doctrine can be more dangerous to create a misunderstanding betwixt the King and us. I have heard here, formerly, that the Lords and we sat together, and one Adjournment, or Prorogation, served the turn for us both. If the Lords cannot be adjourned without their own consent, (as, it seems, they have entered it into their books) and if we may be adjourned without our consents, then there is a clear alteration of the Government. We cannot be supposed to disobey the King's command, but if it be to save the King and Kingdom may we not debate it? I would not have the Lords and us upon two bottoms in this matter.
Sir Philip Warwick.] I believe it not intended, but this may prove insidiosa quæstio; this has made me in my heart against this Question. The Lords did never, in any age refuse to adjourn, when the King signified his pleasure to them by a Minister of State. It can never be found that the Lords denied it. I would avoid the Question, and adjourn the House.
Sir William Coventry.] I am glad that this Debate is separated from your own person, Mr Speaker. If the Debate has held so long, 'tis some excuse to the Speaker, that 'twas a doubtful case. The King who, calls us hither by Record, sends us not away but by Record. If the King required so immediate an Adjournment after signification of his pleasure, as some Gentlemen would have it, we needed not have come hither, but it might have been done in the Banquetting-House. That point of the King's power of adjourning the House is out of doors, and yielded on all hands. But I hope the King has never had, nor will have occasion to suspect the obedience of this House to his commands. Those kind of Adjournments from day to day, and time for eating, and drinking, and keeping Holidays, are as ancient as ever since Parliaments have sat. But it must be understood, that the House has that power cum grano salis. We cannot adjourn for any long time. The point then is, that the act of adjourning is purely the act of the House, when done here. That we must obey the King is clear, but how this obedience is to be performed is the Question. If by the pronunciation of the Speaker alone, without direction from the House, 'tis dangerous to the whole constitution of Parliament. If after twelve of the clock no new business is to be started (which is an Order, and the Speaker has the House on his side) and the Speaker rises up to adjourn, and will hear no man speak, though the matter be of ever so great an importance, or the consequence extraordinary, surely you would not suffer it. Any inconvenience of refusing an Adjournment, when commanded by the King, is answered by a Gentleman of the Long Robe, viz. "The King in half an hour may do it, by commission under the Great Seal." Suppose an Act of Recognition should pass, or the taking the Oath of Allegiance and Supremacy, the Question must be put three times, according to Order; and can any man imagine there will be a Negative? There will be terrible inconveniences, if it be the other way. Some Gentleman may rise to speak, not to hinder nor oppose the Command of Adjournment, but if heard speak, would have moved for the Adjournment. It is a fundamental rule of the House, "that the House cannot be concluded in any thing as long as any Gentleman stands up to speak." That respect is had to the Gentleman that stands up, to suppose, that possibly he may say something to give you new light into the matter coming to the Question, so as to change the whole thing. It is not known what a Gentleman will say, till he speaks. But if the Speaker will not give leave to the House to vindicate their obedience, here is such a power taken from you, that the Speaker, by the same reason, may take the Thanks to himself that the whole House deserves for their obedience to the King's commands. I desire that the Question may be put.
Mr Waller.] Abusus juris non tollit jus. Much more the imagination of it does not. I would willingly have these shackles from our heels, before we go about to defend our neighbours. This is not the way to have a good understanding betwixt the King and us. Will the Speaker make Children of us in the Adjournment? They are asked, "Will you be baptized into this faith?" But not without Godfathers. The King says, "we shall adjourn ourselves," and the Speaker does it.
Monday, February 11.
Serjeant Seys.] When you throw out a Bill, 'tis that the design of it is unprofitable. The design of this Bill is profitable, and Experience shows it in Holland, and in Scotland; in England, at Taunton Dean. Not that Gentlemen bring in their Deeds of 30 or 40 years before, to be registered. If possession has gone on quietly for so many years, the Law gives a man a title. If any man will alienate his title to another, a register secures him. Much money lies loose in the Kingdom, by frequent frauds men meet with, and that is the reason land sells so cheap. Money is got amongst the Brokers—Removing of money is no objection; but that the Bill may be mended at a second reading, and if not, then you may reject it.
Sir Thomas Lee.] As you have formerly done, I would have you do now; adjourn the Debate; and then a Committee of the whole House may consider how far you alter the Law in being, and put mens deeds in danger of forgery. Lawyers can make but half an intail to the son, but not to the grandchild, to avoid a perpetuity. You may else stop the sale of land, and make all dealings in Mortgages. Perhaps the charge of entry of every lease into the Register, be the bargain ever so small, may be not worth entering, or will the loss, for want of a Register, be a greater charge than the inconvenience of not registering?
Sir Thomas Higgins.] I am not prepared to speak to the merits of the Bill; I have not heard it read; but I am for retaining the Bill. Many Gentlemen are for the thing, but not for the Bill; 'tis a reproach to the Nation to have been so long without such a Bill. In Turkey itself all bargains are registered, and 'tis reasonable that something of this nature should be done, now we are entering into a War; and since money is to be raised for it, nothing would more encourage the people to give it. When bargains are without Register, all the Counsel in England cannot assure a man a good bargain, if persons that sell land are not honest; therefore I am for the Bill.
Col. Birch.] When I brought this Bill in, I thought it seasonable; when I see all the blood of the body brought to the head, all the money of the Nation almost brought up to London, and here it lies at 4 l. or less per cent. and men cannot bestow it. I brought this Bill in out of the result of all the Papers I have seen. I begged you formerly "not to put the child to a nurse that cared not for it." For it was formerly committed to two lawyers, and the thing was lost, as this will be, if committed to the whole House, as Lee has moved. I have showed this Bill to ancient lawyers, but to no young ones. I desire that neither the Bill, nor he that brought it in, should be lapped in a bear-skin, to be worried. The thing will speak itself to be no project, and I move that it may be committed.
Mr Garroway.] As for the Bill, I cannot say much to it. I heard it not read, but to prevent difficulty in searching for incumbrances upon Estates, the most learned men know not what to say to it; which makes me incline to Registers. But 'tis most dangerous to register Evidences, to let them be seen. Gentlemen may think they have good estates, and when lawyers come to see their Evidences, perhaps they may have no Estates at all. But if there be such a Bill, ('tis no matter what the title is) if those that have incumbrances, claim either Dower, Statute, or Mortgage—Let the incumbrances be registered that are real, and such a Bill I would be for. 'Tis for your service, if done soberly and discreetly—And so you may make all those secure; but to discover writings, if this Bill be so, I would not endure it. To make Bills and Bonds assignable upon countenance, to turn them into the Exchequer, and so have a quo minus— If the Bill be so, I am against it, chose en action.
Serjeant Maynard.] He that claims an Estate, to put him to register all his Estate, Lease for Life, or any claim!—I am not against Registers of Estates—But if there be a Mortgage, or Incumbrance, upon an Estate, if there be a Register for every man's name, what is it? It is certainly security to any man for his money.
Sir Richard Temple.] I concur with the Serjeant for the end of the Bill, but not for the manner. The Bill begins fairly, and does propose "voluntary" Registers, but ends with "compulsory." The Bill makes not bargains good of those that register before you—I like not erecting new offices.
Mr Williams.] This Bill will shake the ancient inheritance of England. Two things it has in design to prevent, Frauds and Forgeries. This must issue upon it; you must produce all your Conveyances. Possibly a man may lose a Tenement or two upon a weak title; but this will expose all my Estate, and Counsel must be consulted, before my title is registered, and so it must be exposed, and the lawyers will come to have a fair proportion of our Estates. Possibly the Sollicitor that views the Conveyances may be a weak man, and he will advise you to register the longest Conveyance, or a knave, that has a relation of his own concerned, and so may expose the Estate. I could speak till to morrow morning of the inconveniences that would follow. What is up now may be down to-morrow, and an Earthquake on Estates. 'Tis better that a dormant right should suffer, than an ancient possession be disturbed. 'Twas the wisdom of our ancestors to quiet Estates, and not to disquiet them. We must be equal betwixt the ancient freeholder and the purchasers. Incumbrances that may prejudice purchasers are Statutes, Judgments, Mortgages, and Leases, and these are often kept in the dark, and incumber the purchaser. Judgments are upon Record, and so are Statutes; Mortgages and Leases are not. If a Bill may be for some public Entry of Mortgages and Leases, I am for it. If any man come to make a Conveyance, and if there be a prior Mortgage, or a prior Lease, Register will not do your work. For that of Statutes and Judgments you may rectify by Entries. But the remedy must be a severe penalty to make the person a great offender, if upon second sale or contract, and that will do the business.
Sir Robert Sawyer.] I think this Bill of Registers may be of great advantage to the Nation, and I would take this handle, whilst we may take it. I would have it thus, "That no clandestine incumbrance, or deed, shall take place of any purchase for a real value, nor have the priority unless registered." Why should a clandestine title be set up against a purchaser, who cannot foresee it, and is an honest man? But if a Register be of the last deed, which shall be good, and to throw away the first deed, and all unregistered to go so far only as to have preference and priority, and if registered, to take its place; but no incumbrance unregistered to be of any value,—so far I am for the Bill.
The Bill was ordered to be read a second time (fn. 2).