Grey's Debates of the House of Commons: Volume 9. Originally published by T. Becket and P. A. De Hondt, London, 1769.
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Saturday, June 22.
Debate on the Irish Miscarriages.
Sir Edward Seymour.] I do not apprehend how 400 men can keep England safe, if those who manage Ireland play fast and loose with you. 'Tis time to enquire after these Miscarriages, and to repair to the Council-Books, for your information and satisfaction. If you do not what has not been done before, you will be what you were before. I was not for the abdicating Vote, but I am for preserving the Government; and if you do not, you will abdicate all you have done.
Sir Christopher Musgrave.] If you appoint some to inspect the Council-Books, unless they may have Copies, I know not what use you will make of them. You must take the whole matter, and Gentlemen will not undertake to say what is fit to report, and what not.
Mr Howe.] I second the Motion. The hearts of the People are upon Ireland, and there is a fault somewhere. Some lay it on the House of Commons, others somewhere else: For the satisfaction of all Persons, I desire the Committee may have Copies of the Books of all the Orders, &c. and the Transactions relating thereunto.
[Which was ordered ]
Monday, June 24.
On the Impeachment of the Dispersers of King James's Declaration, [viz. Sir Adam Blair, Capt. Vaughan, Capt. Mole, Dr Elliott, and Dr Grey.]
Sir Thomas Clarges.] This is a Case of Blood, and I hope, if I am tender you will excuse me. In 19 Charles II, there was a Committee appointed to consider Lord Clarendon's Impeachment. November 6, the Articles were brought in. The course then was, that a day was set to consider, upon Debate of the House, "Whether the Facts charged were, in the Judgment of the House, Treason." November 9, the Consideration of the first Head of the Fact of Treason took up from nine in the morning to five at night, "Whether Treason should be assigned?" Then it was declared, "That there should be no Impeachment, but on the Statute 25 Edward III." Then Lord Vaughan stood up, and would make good the sixteenth Article; and said, " I do accuse Lord Clarendon of corresponding with the King's Enemies (fn. 1)." I observe that in this Parliament more Attainders have been reversed than in any one Parliament, and the reason is, the great oppression of Westminster-Hall; and these are cautions for succeeding Parliaments to be careful; and I move for a day to consider, whether this be Treason, or no.
[The Articles of Impeachment were read, which see in the Journal, and ordered to be engrossed.]
On the Breach of Privilege upon the Earl of Danby (fn. 1).
Sir William Strickland.] I would know how this Breach of Privilege came? I would not have this Lord affronted.
Earl of Danby.] Had I thought this a Breach of Privilege, I would have complained, nor was it of that kind. You have so many weighty Affairs upon your Hands, that this is not worth your consideration.
Mr Smith.] I stand up only to tell that noble Lord, that, if he will say he was not taken up by a Messenger, I am satisfied; if he was, it must be Breach of Privilege; but if there was no such Warrant sent, the noble Lord will tell you, and you may proceed to other Business.
Sir Walter Yonge.] I would have that Lord tell you plainly, whether he was taken into Custody? If he will not, you must go another way. Common Fame says, a Messenger served a Warrant upon him; and I desire the Messenger may be sent for in Custody.
Mr Smith.] I am always for the Rights of my Country, and of this House, and if he will not tell you, an honourable Person will tell you, that he saw the Warrant; and that is Sir John Guise. I would know of him, whether the Messenger had not a Warrant, signed, "Nottingham," to take Lord Danby into Custody?
Sir Edward Seymour.] I do not see any extraordinary method you need take in making enquiry into this matter. The Privilege of the House is not to a Member only; it is to the House. The highest Breach of Privilege is the Imprisonment of a Member. If that be not, I know not what is. Where are the Debates of this House, if this shall be? Nobody can sit here with safety. Have your Predecessors had so much caution in these Cases, and will you be indifferent? Shall you suffer your Member to be taken out of a supreme Court into Custody by a Subpœna? That the Speaker, a Privy Counsellor, should know of an Order of Council, that breaks your Privilege to sit in Council, and he not hinder it!—This is a catching age for Precedents, not only of making, but imposing Precedents, when I consider how you parted with the Habeas Corpus Act, when you sit here obnoxious to a great man—Lord Danby says, "He does not know that his Privilege was broken;" but he can tell, if he will, all the matter. Put a Buoy upon the Anchor, that men may debate freely, and not have that a doubt when we are gone away.
The Speaker.] Complaint was made to the Council of a Ship seized at Exeter—Notice was taken that Seymour was a Member, and there was no Order, but a Messenger gave notice.
Sir Edward Seymour.] I shall be tender of representing a thing not as it is. I was served with two Orders, and I said, "I would not appear to the Summons of a lesser Council, when I was a Member of a greater." I told the King, "I came in Obedience to his Commands, but not to the Order of Council, but Persons that sat in Council should know I was a Member." The King said, "He knew nothing of it." When I had the Honour to sit in that Chair, and in Council, no Member can say that ever his Privilege was broken.
Sir Henry Goodrick.] If we must believe this Lord, &c. he tells you, "It was no Breach of Privilege;" but what if I, or any man, say, no Warrant was produced!—I heard him say, "A man came from Lord Nottingham, and desired to speak with him;" if this be made out, he has dealt candidly with you, and all mankind.
The Speaker.] We are gone off from the matter. Persons of honour are shy, and think it hard in what concerns themselves: They look upon it as a point of honour. If a Warrant was ordered, it was a Breach of Privilege. I cannot blame Westminster-Hall, if these things be suffered when you are gone, if, when you are here, you may be served as Lord Danby was. He tells you, "He took it not for a Breach of Privilege"—But that there was a Warrant, and served, is another Breach of Privilege. But if this be a Breach of Privilege, it is proper to send for the Messenger.
Mr Smith] What I insist upon is, that Guise may inform you what he knows of the Warrant.
Sir John Guise.] All I know is this: I was in the Gallery at Whitehall on Saturday, where I met the Messenger, Evans (whom I had the Honour to know, having been in his Custody.) I told him, "He would be brought before the House for seizing Lord Danby." He replied, "He had his Justification in his Pocket;" and produced the Warrant for seizing Lord Danby for treasonable Practices, signed "Nottingham."
Sir Edward Seymour.] I hope Lord Danby will have a better opinion of me, than that I did reflect upon him. Pray order the Messenger to attend you, seeing the noble Lord is tender in telling you.
Sir Henry Goodrick.] If it be Treason, your Member has no Privilege. I would not stifle the thing, but send for the Messenger.
Mr Garroway.] I would nip this in the Bud. The Clause in the last Act of Habeas Corpus excepts Members from being attached without acquainting the House. I would not only send for the Messenger, but the Warrant.
[Evans, the Messenger, was ordered to attend the next day with the Warrant.]
On the Heads of Exceptions in the Bill of Indemnity.
On Mr Justice Bedingfield, &c.
Mr Garroway.] Bedingfield is dead, and it is said of him that his Advice was extrajudicial. If once Judges shall be summoned to Court to give private Advice, there is an end of your Laws. You cannot disable a dead man from office, but you may set a mark of displeasure upon him, though he be dead.
Mr Christy.] If the King demands his Opinion, and he gives a dangerous Opinion, and no case drawn, it remains a doubt whether he was for the Dispensing Powers, or not.
Mr Hawles.] To what purpose shall we name a man that is dead? For except all Opinions, and Crimes may be more than in court. If there be a doubt in the case, he cannot answer for himself. I would have no Question upon him.
The Speaker.] I must take notice that, in the last Vote, you excepted a dead person; Lord Chief Justice Wright.
Sir Robert Rich.] It is known how late he came into his place; he could not get much Money. He was the worse for his place; his Estate is very small, that descends to his Posterity, and I would not except him.
Sir Joseph Tredenham.] He is dead, and the Question is, Whether the sour grapes he has eaten have set his sons teeth on edge? He was dead before you made the Resolution, and I question whether properly you can name him.
Mr Smith.] I believe, this Gentleman had a small Estate, and so would the rest have had, if honestly got. You will do the living justice in sparing the dead.
Sir Henry Goodrick.] This man gave his Opinion at a private Conference. His Opinion was not a Judgment in public; let it be affirmed by any Gentleman, that he was so far from countenancing the Law as to take the Test. I would restrain it to this Point, and no more upon this Head.
Mr Foley.] All the Country know that the Judges gave the Dispensing Power in charge; but because the House is inclined to spare, put the Question in general.
Mr Hawles.] Before you put a general Question, think of another Person who told you, "He had his Defence in his Pocket." (Sir Robert Sawyer.)
Mr Garroway.] You have had a touch by Hawles of the Attorney-General. He can satisfy you positively, whether he had not Order to advise, and have the consent of the Judges, to draw Hales's Patent; if not, he is in the Case.
Mr Hawles.] In the Attainder of Stafford in Henry VII's time, the King sent to have the Judges Opinion; but they would not give any Opinion but in Court, because they might hear the matter argued by Counsel. This is the same thing; and those out of Court are as criminal as the Court. I wish the Gentleman (Sawyer) had his writings here that he told you of, to inform you. 'Tis plain and down-right, that this was to suppress the Protestant Religion. The same Person that drew this Patent, gave the Patent to the Popish Bookseller to print Popish Books, not to exceed five thousand in a year, and in that Patent there are the same Clauses as in Hales's Case. If Bedingfield be exempted, I am contented, but I would not let the less guilty be exempted, and the more innocent go free.
Sir Thomas Littleton.] Four are a reasonable number to except: I would not make too many desperate. What are the Sollicitor and Attorney? They are but ministerial; the Draught is sent to them in bœc verba, and they do but sign it; and where they are but barely ministerial; I would leave them out.
Mr Palmes.] When you intended to except but a few, it was that you would make them capital. If you do not lay your hand upon those alive, they may do the same thing again. Will you part with eight Judges in a breath?
Sir Robert Cotton.] We are upon the Judges, and I am surprized we should fall from the Question upon the Attorney-General, who was but ministerial. He left his Place of Attorney-General about prosecuting the Bishops. This will alarm many less criminal, and I am against it.
Sir Thomas Lee.] There is a collateral Question on a Members, who seem to be justified or excused, because he was but barely ministerial. I would ask one Question for all, but I would not have it hereafter go for a rule, that a ministerial Officer may do any thing (Indeed all are ministerial.) But, suppose the Chancellor is so, who sets the Seal to an illegal Patent—Families depending, it may raise many Enemies, which is not the end of the Indemnity, but to punish some, and bring others heartily to embrace the Government for the Grace they receive. Great Numbers of Incapacities are so many marks of Ignominy upon so many Families.
Sir John Guise.] Upon this Maxim of Policy, I cannot agree to employ those I cannot trust, or put them in a capacity to do more mischief. What will all the People ruined by these men say to us? Pray what have they deserved your favour for? For breaking all your Laws? I believe, you will not exclude one of that Number from justifying himself. Pray propose every man in particular, and not a general Question.
Mr Hampden, jun.] I think you cannot take the Indemnity too far. It is our business to heal the Nation; so far as is consistent with our safety, pardon all you can; only in one Case, you cannot pardon, and that is, not to bring Blood upon your Posterity. But as for ministerial Officers, they are all so. Posterity is innocent, whoever is guilty, and put the general Question.
[Mr Samuel Johnson's Judgment was this day reversed, and he was recommended to the King for Preferment.]
Thursday, June 25.
On the Warrant to seize the Earl of Danby, [delivered in by the Messenger.]
Sir Joseph Tredenham.] Before you enquire of Lord Nottingham about this Warrant, you are to justify your own rights.
Sir Thomas Clarges.] 'Tis Treason, or Felony, that is out of the Habeas Corpus. This Warrant is "for suspicion of Treason." It ought to be Treason, or Felony, upon Oath, and six of the Privy Counsellors hands to the Warrant. But upon Treason, or treasonable Practices, you ought to have been acquainted with it, the Lord being your Member. I hope you will vindicate your own Rights.
On a Petition being presented from the City of London, unsigned.
Sir Robert Howard.] I never heard of this Petition till now. To one thing I can speak; certainly there is no question of the Loyalty of the City of London, and their full adherence to the Government. They got a Common Hall, and went in entirely to the Change, and defended it with their Hands. You have had Petitions here without Names. You are told the Sheriffs are the proper Officers, &c. and that they will sign it, and pray let them sign it.
Sir Thomas Clarges.] I have known formerly strange Petitions from the City of London. In 1641, to alter your Laws on several Heads till they took off our Heads; but the City is in much better temper. I know not, by what appears, whether the Petition be from the Body of the City, and I would not have it read.
Mr Howe.] I would keep out that filthy trimming trick, to disoblige our Friends, and oblige our Enemies. I wonder we should go back to 1641, and not remember three years ago. A great many Members have suffered in 1641, as much as Clarges, and I would not do any thing that may seem to disoblige the City.
Col. Birch.] The time I have sat here I never knew, when a Petition came from public Persons, that ever it was signed; but as for the Motions to return the Petition back, for the City to call a Common Council to have it signed, I believe it is true, that the Country is in many places disaffected to the Government; therefore I would not disoblige them: That safety we sit under, by God's blessing, is from them. There wants but one thing; if they could get us loose from the City of London, their work is done, that are disaffected. I would rather receive the Petition in the usual manner, but rather than not receive it, I would send it out to be signed.
[It was sent out, and signed by the Sheriffs.]
Sir Thomas Lee.] When a Member brings a Petition to you from any body, he must open it, with his desire to present it. The Person who petitions must come to the Bar, and own it.
Sir William Williams.] If your Member was the Messenger to receive the Paper only, it is no great matter; but if he present it in his place, the matter is, whether you will send it out to be signed, or receive it from the Member. If he will, let him move for them to come in. He has taken it out of their Hands; he ought to open and move it.
Sir Christopher Musgrave.] It was the Resolution of the House that this Petition should be signed. I appeal to you, whether it be signed; they only tell you they are directed from the Common Council to present the Petition to you.
Sir Robert Clayton.] If that Gentleman did understand the Constitution of that Body, he would know that the Common Seal is never set, but only signed "Wagstaffe." You have the Petition from the Hands of the Sheriffs, as good Vouchers as you can have from that Court.
Sir Patience Ward.] The Practice of Courts makes the best Interpretation of things. The City is a great Body, and cannot sign the Petition, but you have the Sheriffs who will sign it. I do avow it, and so will other Members, if required.
Mr Hawles.] I understood, that, when you sent it out to be signed by the Sheriffs, it should be in no other manner than it is, "That they delivered it by command of the Common Hall." Perhaps they were told it would be a criminal matter to come with a multitude of Hands. I think it ought to be read.
Sir Thomas Clarges.] By the Rules of the House, you ought not to read the Petition. Forms preserve Essences, and they must be observed. Any Order of Court must be signed, and approved by the Court sitting, and the Order registered. But they say, "No, not that; but in a tumultuary way"—when it comes to be an Act of theirs, they will not do it. This is not such a signing as the gravity of this House expects. It does not show that the Sheriffs and Common Serjeant approve it, and for these Reasons I must give my Negative.
Sir Thomas Lee.] I hope reading the Petition depends upon the nature of the Petition, and not the form of delivering it. The use of signing the Petition is, that there be no scandalous matter in it, and that they do avow it, and are accountable to you for their discretion in the matter of it. I would read it.
Sir William Williams.] I do agree with Lee, if we could pass to the matter without the form. If it have not that form requisite, you never look into the matter. We are upon the outside of the Petition, on the face of it; the matter you cannot look into. If it be universally true that a Petition ought to have Hands, or Seals, to it, you cannot receive it, and you have done wrong to so many Persons and Corporations you have received Petitions from, without Hands, or Seals. Why do you require Hands to Petitions? 'Tis that the Petitioners may be answerable for the Contents. Those say, "They have order from the Common Council to deliver it to you." You must have the Petition owned, not for form sake, but a necessary Rule. Suppose there is Treason in it, and no Person to answer for that Treason, that Libel. In the Name of the Speaker is in the Name of the House; I know it by experience in my Prosecution. They are a Body without a Head, a Body without a Hand, when not signed. To read it without a Hand,—I am against it. Let it be signed as it is usual. It is the sanction of the Petition, and without a Hand to it, I shall never give my consent for it to be read.
Mr Boscawen.] I appeal to Gentlemen, in times past, whether a Petition from the City, signed by a public Officer, was not taken to be from the City? The Sheriffs and Common Serjeant (who is the proper Officer) who are Members of the Common Hall, are included as part of that Body. You must put it upon that Question, and valeat quantum valere potest. If you refuse that, you refuse what was never done to the City.
Mr Hampden, sen.] The only Question now is, Whether they have so signed the Petition as to prepare you for reading it; and they have not signed it as Petitioners, but avow it from the Common Hall. They were present at the framing the Petition, and when it was agreed. If Gentlemen have no mind to hear reason, (Upon some noise made) you may put the Question presently. What farther Confirmation would you have? Does it not answer the End of all signing Petitions? "But," says the Gentleman, "the Sheriffs, &c. will not sign it as Petitioners, but as Ministers of the Common Hall;" and, suppose the Case should be that they do not consent, you are obliged to receive it; it is no Fiction, no piece of Poetry, but authentic. If because the Sheriffs do not agree to sign it, and therefore you will not receive it, you put the Negative upon the Hall by the Sheriffs.
The Speaker.] They that are against receiving a Petition from the Commons ought to go out, because it is their right to petition.
Sir Christopher Musgrave.] Till the Petition is opened, the House is not possessed of the Matter, and those for it ought to go out.
The Speaker.] I am satisfied in my Judgment that the No's ought to go out.
So they did; and the Petition was ordered to be read, [174 to 147.]
The Substance was to desire, "That Dissenters might bear Offices as well as others, taking the Sacrament their own way."
Wednesday, June 26.
The Impeachment of Sir Adam Blair, &c. was read.
Sir Thomas Clarges.] This Impeachment being matter of Blood, I would have it debated, Whether the matter contained in it be Treason? In Lord Clarendon's Case, it was said, there was never any Precedent from Henry IV; nor by the words of the Statute 25 Edward III, and I believe no Precedent since that Time—Fitzharris was impeached, and that was for conspiring the death of the King. We are the Grand Inquest of England, and I hope I shall never be wanting in my duty. I would know, whether, if an Indictment be brought to a Grand Jury, the Question ever was, "Agree, agree," (some calling out so) Enquire whether the Indictment be according to Law. I desire so much satisfaction as a Jury would have. A Consultation held, and no War levied, as in Lord Russel's Case, is no Treason. If the King's Counsel will declare it to be Treason, I shall agree; if not, I doubt it.
Mr Howe.] Though we have no power to make Treason, I hope we shall not have power to connive at it.
Sir Thomas Clarges.] This is an extraordinary thing for a Gentleman to say, "that when a man speaks his mind here, he connives at Treason." Lord St John, in his Argument against Lord Strafford, says, "that Judgment cannot be exercised but by Bill."
Sir Thomas Lee.] I confess, that I have not read that Argument this long time, therefore I will not controvert it, but I never heard that a Parliament could not judge; but it is a Power to be kept solely in Parliament, left it should be an Example to Westminster-Hall; and therefore judged by Bill of Attainder. Before Edward III's time, Treason was dressed up as in the late Informations. If men act such things, 'tis destructive to the whole, and this was put into the Statute of Edward III, by way of caution, like firing of a Beacon. You send not up the Impeachment till the House dares venture their Credit upon making it good, and the Commons ought to be satisfied that the Evidence will hold out with the Lords as well as here; else the Evidence should be punished. It is a mischievous Practice, when the Courts of Justice have been exorbitant, and would be safe in so doing. This Declaration that Sir Adam Blair has published, declares another King, and dethrones this. If this be a general Opinion, I think we ought not to carry up this Impeachment; if it be a Crime (which every body thinks) it ought to be carried up to the Lords, that it may be judged Treason.
Sir Thomas Clarges.] Lee was of Opinion, in Lord Clarendon's Impeachment, "That there was no Common Law Treason;" upon Debate, that Impeachment was not carried up till it was clear, that the Article was Treason, Before the Statute 25 Edward III, Treason was so ubiquitary, that it was reason, to assert Treason, with the Proviso relating to the Judges in doubtful Cases, &c. After that Act, Treason was bandied more than before. In Richard II's time, Sir Thomas Hawksley was judged for making a Motion in Parliament, insomuch that Henry IV was petitioned by the Lords and Commons, "That Treason might not be so hackneyed about;" and in Queen Mary's time it was repealed. I dare put my Credit upon it, there has been no Judgment of Treason from Henry III's time; and Lord Coke is express, in his Chapter of Treason, "That the Statute of Edward III was taken away by the Statute of Queen Mary." Lord Chief Justice Vaughan used this Argument, "That there was no Common Law Treason, no constructive Treason." Lord Vaughan, (now Lord Carberry,) brought in an Article in Clarendon's Impeachment of his "corresponding with the King's Enemies, and betraying his secret Counsels (fn. 3)," which was special matter; and then the Article was voted Treason.
Sir Thomas Lee.] My friendship to Lord Clarendon induced me no farther, than that I was against the Address for removal of him from the King; but I concurred with the House, and went through every Vote to make Impeachments easy here. At that time the King was angry with Clarendon, and took the Seal from him, that he might go out of Town into the Country. The Duke of York did support Clarendon, who at that time went to Church, and was reputed a Protestant; at the same time, all the Lawyers, raised by Clarendon, followed him, and a Gentleman then said (Waller) "Touch a Lawyer, and all the Lawyers will squeak." Vaughan (who was quickly after made Chief Justice) argued as strongly against the Impeachment, as he had done before for it, but told you he had changed his Opinion. There are two ways of delivering in an Impeachment; one at the Lords Bar, another at a Conference. The Impeachment of Lord Mordaunt was delivered at a Conference, by Mr Seymour. I leave the House to consider, whether you will deliver this Impeachment at a Conference.
Col. Birch.] I have sat here long, and seen many things done. 'Tis usual that the most able Lawyers go up with an Impeachment to inforce it. I see in my Eye a Person of great worth, though aged (Serjeant Maynard) I would have him go up with it.
Serjeant Maynard.] Pray put not that upon me, who know nothing of the Business. Pray let Birch go, who knows the whole Business.
Col. Birch.] I never refused the Service of the House. The Reason why I moved for Serjeant Maynard was, because never any man did argue better in the Impeachment of Lord Strafford. Clipping a Shilling is Treason, and is not subverting the Government? I would have the Person to carry it up, who is the fittest to carry it on.
The Impeachment was ordered to be carried up to the Lords by Col. Birch.
[June 27, Omitted.]
Friday, June 28.
Sir Thomas Clarges reports, from the Earl of Nottingham, an account of the Warrant issued out against the Earl of Danby, viz. "That on Friday last, the Earl of Nottingham was informed, that Lord Danby had fitted out a small Vessel with Arms, with some design unknown to his Relations, and a Wherry to carry him away; that he had this Information from the Lord President; that he had not time to put it in writing, nor was it given upon Oath, but he wrote it, upon memory, for his own Satisfaction. Upon Enquiry of the Reasons, &c. from Lord Danby, he said, "That the Vessel was his own Yatcht that he had fitted it with the same Arms it had, and no more than before, to make use of for his diversion; and that he had no design in the least criminal." "This," Lord Nottingham said, "he found so ingenuous an Answer, that, considering his Behaviour in the Change, in contributing to the present Establishment, he released my Lord without Bail, but with promise, upon his Word and Honour, to appear upon Summons."
Mr Howe.] I am willing to go on in the Act of Oblivion, but I am concerned that this proceeding sticks not only on the People, but that their Representatives may be in danger. But if, by intreaty, a man may be taken up in this manner, every mother's son may be taken up. I hope you will order the matter so, that you may justify your Proceedings.
Mr Bickerstaffe.] This was in the Afternoon, and the House not sitting; upon complaint to the President of the Council, he could not do less.
Sir Robert Rich.] I suppose that Gentleman was not here, when the Messenger gave an Account of it. He said, "He had served the Warrant, and whispered Lord Danby in the Ear."
Sir John Thompson.] You may remember, Evans, the Messenger, acquainted the House, "That Lord Nottingham granted the Warrant without Oath." I have nothing to say to Lord Carmarthen, but one Member is injured, and I know not how to justify the thing. If this Warrant was granted as a Privy-Counsellor, or a Justice of Peace, I know no Law for it; for if six Privy-Counsellors do it, and here is but one, it is worthy your Consideration. If as a Justice of Peace, he cannot take up a man without Oath. If one Counsellor shall whisper to another, and imprison a man, I know not who can be safe. If we take up this now, at the rate Elections go at, and the Determination in Sir Samuel Barnardiston's Case, they may have a Parliament as they please. I know not but that it may be in the Power of one great man to make a Parliament. I hope the House will be jealous of their right.
Sir Robert Cotton.] I take it, any Member of the House may be arrested for Treason, or Felony, without leave of the House, but he cannot be detained without leave of the House. But the Question is then, Whether there was an Oath given? In this Case, I think it was necessary. I think the Power of the Habeas Corpus late Act lays that aside. But whether one Privy-Counsellor, without six, can take up a man, without Oath, in matters of Felony, or Treason, that is the Question.
Sir Francis Blake.] I should be loth to go into Northumberland without this being decided; there would be no safety for me when I am at home.
Sir John Guise.] I am much concerned that this, by a general silence, should be passed over. The Breach of Privilege seems plain; is it not a thing to be mended? If this be prejudicial, and made only a jest, to pass it thus over, if this be done to one, it may to another. Whether if you complain to the other House, of this Breach of Privilege, it may not be prejudicial? I would pass it over rather than give interruption to the great Business, but so that neither I nor any man else be taken up.
Mr Garroway] I cannot see but that this is a Breach of Privilege. I would not drive it high, but declare my mind. What you will do in it is another thing, but I hope you will vote it a Breach of Privilege, though it be no Commitment, the only taking the Member up without Oath. I would go as softly as we can, but I know not how to proceed upon Lord Nottingham, without coming to the Lords. I would vote it only a Breach of Privilege, and address the King to take Order that the like be not done for the future.
Mr Howe.] I cannot agree to this Motion. Have we not declared our right? What are we the better? In two Months, this man may go round the House, thus. I hope, as Englishmen, we shall not forget our rights; and any man that will do this is not fit to be employed in the Government.
Sir Christopher Musgrave.] I think this is a Breach of Privilege. I suppose it is not the intention of the House (since the Act of Habeas Corpus requires six Privy-Counseilors to sign the Warrant,) to approve it in one only. If that be not our Privilege, I know of none that we have. I would not have it go off, that he could warrant the thing. I think we ought to vote it a Breach of Privilege, and address the King that nothing of this kind be done for the future.
Col. Birch.] If this had been done by a Person that had not very well understood Privilege of Parliament, I would be for it as proposed; but the thing apparent in the Warrant is called "treasonable Practices," and it was evident to him before he signed the Warrant. If there be any thing you do not see, pray let us feel it, if you will examine it to the bottom. I am not so much Lawyer as to distinguish "Treason," and "treasonable Practices." See the Bottom of all, and then take your Resolution.
Mr Charles Montagu (fn. 3).] There is one thing I cannot solve. The Paper that Lord Nottingham gives in says, "The Information was given in on Friday,", and the Warrant bears date on Thursday.
Sir Thomas Clarges.] That may be a mistake. He said, "The Warrant was for treasonable Practices," which is bailable. For Treason and Felony plainly expressed, if an ordinary Justice of Peace may bail, this may be so too. Pray vote it a Breach of Privilege, and address the King to signify your opinion of it, that it may not be so for the future.
Sir Rowland Gwynn.] I am willing you should put the Question, but if you say no more than is proposed, I am against it. I think my Lord of Nottingham's Answers are not fair. I know not what to make of it.
Serjeant Maynard.] As this case stands, a Member is imprisoned, and a Warrant is made to take him for treasonable Practices; if we take notice of it, and let a Member sit amongst us so accused, we cannot well answer that. We are to vote it a Breach of Privilege, and then enquire what those treasonable Practices are. At this rate, we may all be imprisoned, and whipped to our lives end. Vote it a Breach of Privilege, and sit not mute upon so plain a Breach.
Sir Henry Goodrick] I look upon this as an Invasion of Privilege, and worthy your cognisance. I hear it moved to refer it to the Committee of Privileges to enquire into it, but I think that not fit. From whom will you have Informations? Will you send for Lords Nottingham and Carmarthen? I would have a good correspondence with the Lords; the Peers will not come to you, and there will be a rupture; but if you will come up to the Motion, for your honour and ease, vote the Breach of Privilege, and then address the King.
Mr Garroway.] I shall speak to your Question. It does not appear by that Answer, which Lord Nottingham gave, that there was sufficient cause to take Lord Danby into Custody, and therefore vote it illegal, and a Breach of Privilege.
Col. Birch.] I desire to speak a word to the Question. I have told you that I thought this a strange thing, and it was as strangely done for a Person of his Understanding and Honour. To me it appears more; when Lord Danby to this House is upon his Parole to appear when summoned, and we all know he is in Custody by that; which makes me think, there is more in it than at the present appears.
Mr Harbord] I would know what you aim at, that I may see whether you are like to have good success. I take this Imprisonment of Lord Danby to be occasioned by his Father. I would do as I would be done by. If a Child do against his Father's desires, a Parent would prevent it. Here comes the Marquess of Carmarthen to Lord Nottingham, and tells him his Son will go to Sea, in a hostile manner, without a Commission, and he is a Pirate by doing so, and must die for it. He applies to Lord Nottingham; but that is not a good way; he should have applied to the Lords Commissioners of the Admiralty, and has not done as he should. But it is a hard Case to lay the stress upon Lord Nottingham; and if I had a Son that had done as Lord Danby, I would have done so; and therefore, as Garroway proposed, the Complaint against Lord Danby is not sufficient to put him in Custody. I have no obligation to Lord Nottingham: I speak my mind, and I care not two-pence for those who interrupt me, (something in Passion) be they who they will. I have drawn my Sword for the King, and I care not for the censure of any man. I would leave Lord Nottingham out of the Question.
Sir John Thompson.] He that touches the Parliament, touches the vital part of the Nation. The fault is the greater; for the man is not fit to be Secretary that carries about him the Legislative Authority to commit in this manner. The Messenger had been clapped up, if he had not done it; it was the Secretary did it. Put the Question thus, "That granting the Warrant without Notice, &c. was a Breach of Privilege, &c."
Mr Howe.] I am satisfied of Harbord's good Intentions; but if I had a Child, I would have a French Protestant to govern him, and not a Secretary of State. We are told of your Member's pirating, but what reason for his taking up, I know not; but pray right yourselves, and put the Question.
Sir Joseph Tredenham.] I desire, that my Son should be tutored by an Englishman, and not by a French Protestant. I am entirely for the Question proposed. If it be a Breach, it ought to be so tender that hereafter it may not be a Precedent for the loss of Privilege; for that reason, I would not pass it over in silence; the consequence may be fatal. I was with Lord Nottingham, but the Question is, Whether his Answer was a ground to attach your Member? But there is a distinction between those that have the Honour to sit here, and a private Person; I see him no otherwise criminal for this Warrant, but as Lord Danby is a Member. But as for the kindness of the Father to his Son, the complaint ought to have been made unto you. Some Gentlemen are for a Committee to enquire into it, but if you are not at the bottom already, I would have a Committee. The present Business is to vindicate your own Privileges. Therefore I am for such a Question.
Sir John Guise.] I am sorry we should have Comparisons betwixt Father and Son, to our detriment. Something of Piracy was spoken under me, &c. but I hope that is but a conjecture. But if the Vessel was armed, nobody knew who it was for, or who against. I would name the Person that granted the Warrant, and refer the rest to a Committee.
Sir Henry Goodrick.] 'Tis certain that Lord Danby made his Application to the Duke of Schomberg, and the Office of Ordnance, and had Ammunition and Provision to scour upon Privateers; tis a little Vessel, and can fight or not fight as he will; the General gave directions for it, and he had Arms, &c. accordingly. I have not seen the Marquess, but his Mother was alarmed, and was not willing the whole stay of their Family should run hazard with Privateers, under a pretence to scour about the River. But such imminent hazard he was like to run of his life, that they were resolved to take all means to stop him. I hope this will satisfy the House, and not rest upon him as any scandal. I aver this to be matter of fact, and I would only vote this to be a Breach of Privilege, without naming Lord Nottingham. Perhaps he was led by this inducement.
Sir Christopher Musgrave.] I think Goodrick spoke against the Addition of the Question naming Lord Nottingham, because it appears on your Journal the Warrant was entered there; and therefore no reason for the Addition, being now no occasion The thing is to assert your Privileges and Rights, and the Question will run well without the Addition.
Sir Robert Howard.] The thing is very unhappy, and much mistaken in the manner of proceeding; but natural Affections must not be used to try tricks with the Government. Natural Affection may be showed, and stop there. Suppose Lord Nottingham should tell you he did according to Law, is not that a sufficient excuse? Lord Nottingham, upon information of a Privy-Counsellor, granted the Warrant, but still the fact is done, and you vote it a Breach of Privilege, and that is all.
Mr Smith.] Howard says, "It will justify Lord Nottingham, because he had his Information from a PrivyCounsellor." I would be satisfied whether a Privy Counsellor must not give Information upon Oath, as well as another?
Sir Walter Yonge.] I am very indifferent whether you name Lord Nottingham in the Question, but assert the Cr.me. There is no fault in the Messenger; he knew not of it; but I am sure Lord Nottingham must know of it. Granting the Warrant is a thing that must not be passed by so hastily. You will find few Messengers that will deny such execution of a Warrant. Pray put it, "That the granting such a Warrant is a Breach of Privilege."
The Speaker.] The Messenger undoubtedly breaks your Privilege, as well as the Bailiff that arrests your Member.
Mr Hawles.] The Bailiff, and he that sues out the Writ against a Member, are upon record, and if you only call upon the Person who does officiate, your Privilege will be quickly lost. Whoever issues out the Warrant is more, or equally, guilty than he that executes it.
Col. Birch.] Let it appear on your Books that you judge prudently. See the Date of the Warrant.
Sir Joseph Tredenham.] At the same time that Lord Nottingham received the Information, he made the Warrant, and put it in writing for his Memory. I never knew it a Breach of Privilege, if a Writ was never executed. In some Cases, the Statute of Non-claim may be pleaded; if the Writ be not taken out in legal Time, it is excluded. If it be necessary, several Precedents may be produced, not to hinder a man from a just Debt. But Prosecution of a Writ will hinder a Member from his attendance; but if it be not served, it is no Breach of Privilege, because it does not hinder a Member's Attendance.
Resolved, That the granting a Warrant to arrest the Earl of Danby, a Member of this House, and the taking him into Custody by virtue of that Warrant, is a Breach of Privilege of this House.
[The Black-Rod came to summon the House to attend his Majesty in the House of Peers, where his Majesty spoke as follows.]
"My Lords and Gentlemen,
"The time of the year being so far advanced, and there being several Acts yet to be passed for the safety and settlement of the Nation, I desire you would expedite them as soon as you can, it being necessary there should shortly be a Recess, both that I may be at Liberty to pursue the Business of Ireland with all possible Vigour, and that the Members of both Houses may repair to their several Counties, to secure the Peace, and to put the Militia into some better Posture.
"I am very sensible of the Zeal and good Affection which you, Gentlemen of the House of Commmons, have showed to the Public in giving those Supplies you have done already; and I do not doubt, but, from the same Inducements, you will be ready to give more, as the occasions require; which, I must let you know, will be sooner than perhaps you may expect, because the necessary expence of this year will much exceed the Sums you have provided for it. And that you may make the truer Judgment in that matter, I am very willing you should see how all the Moneys have been hitherto laid out: And to that end, I have commanded those Accounts to be speedily brought to you; by which you will see how very little of the Revenue has been applied to any other use than that of the Navy and the Land-Forces.
"I must remind you of making an effectual and timely Provision of the Money for the States of Holland; and I doubt not but you will take care to see a fitting Revenue settled for myself.
"My Lords and Gentlemen,
"I will add no more, but to recommend earnestly to you to avoid all Occasions of Dispute or Delay, at a time that requires Union and Vigour in your Counsels, upon which the Preservation of all that is dear to us doth so much, depend: And I do promise that nothing shall ever be wanting, on my part, which may contribute towards it."]
Sir Robert Howard.] The King is pleased to leave the matter to us; and, in the first place, let us return thanks to the King, &c. and go into a Committee to consider the Speech, Paragraph by Paragraph.
Sir Thomas Clarges.] We cannot be able, before the Recess, to make a Judgment of the Arrears of the Money; by Winter we shall have time to make recompence for what falls short. Till then we cannot compute what that will be. The Poll is contingent with the other Taxes; till then we are not able to give the King any Answer, and then we may make up what is deficient.
Mr Howe.] I think there is other Business upon our Hands, as well as the Indemnity. We are not yet off from Lord Danby's Breach of Privilege: I would neither frighten the Messenger, nor any body else in the King's Service, but if you will pass this over, I will say no more.
Col. Birch.] We all desire a Recess, and to me seem to do a quite contrary thing. The Bill of Oblivion has held us a Month, and, for ought I know, we may sit till Michaelmas, and not do it. This is a fine thing to keep you from all Business. I would dispatch all Bills relating to Money, and when you have the Account, you will be satisfied in a day or two. 'Tis true some things are contingent in the Poll-Money—I remind you that Money stands voted in the House for the Dutch. Their Ships came heartily to our Assistance; therefore take the King's Speech into Consideration on Monday.
Sir John Thompson.] Let us do our Country Justice, and the Dutch Justice; they came for their own Preservation, as well as ours, against the great preparation of the French King.
Sir Christopher Musgrave.] The Dutch have no great War upon their Hands now, but we know who has: We have the French and Ireland. We shall comply amply with the King, if we go upon what is before us; and tomorrow we may go upon the Excise. If we go on upon the Accounts, we shall have no hopes of a Recess; therefore go to-morrow upon the Excise.
Mr Howe.] I am willing to go as soon as possible upon Money. I am sensible of the service the Dutch have done; many an honourable Gentleman has done you great service, and yet brings you no Bills of Account for it. I hope the King will give us satisfaction in the Irish Affairs, and save you the labour of particular Accounts. If the Dutch can fit out more Ships than they have already, they may do it in Money. Upon the whole, I am ready to give Money when it is requisite; but you may see the Accounts mentioned.
Sir Thomas Clarges.] In our Aids to the King, we have not limited one thing nor another. We hoped that 200,000l. had been paid off of what we had granted, to the Dutch, and the rest supplied. I cannot see how more Money can be expended before we meet again; and in February next, is the last Payment of the Subsidy, and we may consider betwixt this and then. Here in the Poll-Money, and the Revenue, altogether, are three Millions betwixt this and February—There is no absolute need of falling upon the Revenue, to settle it; till the Book of Rates be perfected, we cannot settle the Revenue. Here is the Excise—And I know not how to put the Wheels faster upon a run than they are.
[Thanks were voted to his Majesty for his gracious Speech.]
[June 29, Omitted.]