House of Lords Journal Volume 11: 5 June 1661

DIE Mercurii, 5 die Junii.

Domini præsentes fuerunt:

PRAYERS, by Dr. Hodges.

Radcliff's Bill.

The Earl of Portland reported from the Committee, the Bill for restoring Thomas Radcliffe to his Estate, as fit to pass, without any Alteration. Whereupon the House ORDERED, That the said Bill be engrossed.

Report of the Conference concerning the Bill for preserving the King's Person.

Next, the Lord Chancellor made the Report of the Conference had with the House of Commons on Friday last, concerning the Alterations and Proviso in the Bill for preserving of the King's Person and Government; which was to this Effect:

"Mr. Solicitor began the Conference; who prosessed the great Respect the House of Commons had for the Lords; how readily they had concurred to all the Amendments the Lords had made to the Bill, excepting Two Points:

"The First was in the Second Skin, ["other than their Peerage."]

"The Second in a Proviso.

"To the First, he said, The Commons Care is but to prevent a Crime, as odious in Nature, as dangerous in Practice; and they conceive that, as they had penned it, the Bill reacheth not an Hereditary Dignity, such as Peerage is, which they take not to be an Office; and therefore, as the Bill was penned, that was not lost therefore. Secondly, if it were, they should not have had the Presumption to have offered to their Lordships, that any Person that should so miscall the King as in the Bill is mentioned, should not be thought worthy of so high a Punishment; and yet the Bill excluded not such from the King's Pardon.

"The Commons take Notice, that the Lords in Capital Offences must have their Trials by Peers, though no Proviso were added in the Bill; so as the Question is only about the Premunire and Disability.

"They say, in Case of a Premunire, the Lords have not their Trials by Peers, as appears by Stamford and Sir Edward Cooke; neither are there above Four or Five Acts of Parliament wherein the Lords have their Trial by Peers saved to them in that Case.

"The next Gentleman that managed the Conference was Serjeant Charlton; who said, That the First Exception ["other than their Peerage"], (fn. 2) which excepts all the Consequence of Peerage. He observed, that where the Obligation was greater, the Aggravation was higher; and that Peers were more especially bound to the King, than other Men. The Common Law (he said) implied a tacit Condition in Peerage, forfeitable upon swerving from their Allegiance to the King. He cited the Case of Nevill, Cooke's Report, the 21 Ric. II. how the Earl of Westm'land, though Tenant in Tail, for an Offence forfeited it, by Breach of Trust.

"So in the Case of the Lord Delaware, 3 E. VI. who suffered a Personal Disability. This was also recommended to us as the Judgement of the King, who told us, "That we should provide full Remedies against new Mischiefs, when they are so upon old Principles."

"The next was Sir Robert Atkins; who began with prosessing the Desire of the Commons not to infringe any of their Lordships Privileges; yet withal their Tenderness of the King's Safety and Honour. As to the First Point, he said, the Bill, as it was sent up by the Commons, (fn. 3) made no Forfeiture of Peerage; but only did suspend it.

"As to the Second, (he said) the Lords have no Exemption from a Premunire; but are to be tried by a Jury of Commoners, by the Common Law. And herein they were the more confirmed, in regard Mr. Selden, in the Book of his Privilege of Peers, affirms it to be so. In the Statute of Premunire, in the 16 of R. II. there is no Exception for the Lords to be tried by the Peers; wherefore the Commons hope that their Lordships will not take it as a Piece of Unkindness, that they concur not in so perilous a Proviso.

"The next Gentleman was Serjeant Keeling; who said, That he took Magna Charta to be the Ground of the Privileges both of the Lords and Commons. And he observed, that the Trial of Lords was by a Common Jury, not by Peers, in all Cases not Capital, except Misprision; and the Reason of that was, because Misprision was anciently a Capital Offence; and being changed, by the Statute of the 1 of Philip and Mary, from a Capital Crime, the Lords obtained the Trial by Peers only upon that Account. He observed, that those Things in the Bill named were Crimes so dangerous, that no Severity could be too much for them.

"The last Gentleman that managed this Conference was Mr. Yorke; who said, The Statute of 1° Eliz. made Five Offences Premunire, wherein the Lords had their Trial by Peers; but those were Offences only to the Court of Rome, but not such as this Act holds forth: The last Statute that makes Premunire is the 7th Jacobi; and there is no Saving for Trial by Peers; neither in 10 Jac. He said, The Offences in this were more dangerous than in that Act; and it was necessary to make new Laws to secure the Government; adding, that they that should commit so foul Offences as are mentioned in this Act, did not deserve so honourable a Trial as by Peers. Besides, that Way of Trial was tedious and chargeable; a new Court must be erected, and the King put to the Charge for sending for Peers from the extreme Parts of the Land: Whereas the other was a quicker Way, and therefore fitter for Dispatch."

Bill for preserving the King's Person.

This Report being made, the House took the same into serious Consideration.

And, after a long Debate, and mature Weighing of what was offered by the House of Commons, this House ORDERED, To adhere to the Alteration and Words as they were put in by this House, concerning the excepting of Peerage; and also to adhere to the adding of the said Proviso as it was sent down: And it was further ORDERED, To have a free Conference with the House of Commons; and there every Lord at Will to have Liberty to give his Reasons that were used in this House upon the Debate.

Message to H. C. for a further Conference about it.

A Message was sent to the House of Commons, by Dr. Childe and Dr. Littleton:

To desire a present Free Conference, in the Painted Chamber, touching the Matter of the last Conference.

The Answer returned was:

Answer.

That the House of Commons will give a present Free Conference, as is desired.

The House was adjourned during Pleasure, and the Lords went to the Conference; which being ended, the House was resumed.

L. Fauconberg, Leave to be absent.

ORDERED, That the Lord Viscount Fauconberge hath Leave to go into the Country.

Bill to inclose Ground at Parsons Green.

Hodie 1^a vice lecta est Billa, "An Act for confirming of an Enclosure of Land, formerly used for a Common Highway, from Parsons Greene to Southfeild, in Fulham; and the settling of other Land for a Common Highway there, in Lieu thereof."

E. of Derby's Bill:

Hodie 2^a vice lecta est Billa, "An Act for restoring the Earl of Derby to his Lands."

Sir J. Trevor & al. Petition against it.

Then a Petition of Sir John Trevors and others was read, desiring to be heard before the aforesaid Bill be passed.

And it is ORDERED, That the Debate concerning the committing of this Bill shall be adjourned; and to be resumed on Friday Morning next.

Sir Allen Zouch's Petition.

Upon reading the Petition of Sir Allen Zouch:

It is ORDERED, That the said Petition and Contents thereof is hereby referred to the Lords Committees for Petitions; who, having considered thereof, are to make Report to this House.

Towns of Leostoff and Yarmouth, concerning a Fishery.

Upon the Petition of the Bailiffs of the Town of Great Yarmouth, read this Day; shewing, "That they were served with an Order of this House, on the 30th of May last, for a Hearing, at this Bar, on the 7th of June Instant, concerning a free Trade of Fishing, between the Inhabitants of the Town of Lowstoft in Suffolke, and the Town of Yarmouth:"

It is ORDERED, by the Lords in Parliament assembled, That the Hearing of the said Cause is hereby put off unto the Twentieth of this Instant June peremptorily; and that then all Parties concerned are to attend, with their Counsel and Witnesses, and come fully prepared for a Hearing at this Bar accordingly.

Adjourn.

Dominus Cancellarius declaravit præsens Parliamentum continuandum esse usque in diem Jovis, videlicet, 6^m diem instantis Junii, hora decima Aurora, Dominis sic decernentibus.