Journal of the House of Lords: Volume 12, 1666-1675. Originally published by His Majesty's Stationery Office, London, 1767-1830.
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DIE Mercurii, 11 die Decembris.
Domini tam Spirituales quam Temporales præsentes fuerunt:
Sir W. Juxon's Bill.
The Duke of Richmond reported, "That the Committee have considered of the Bill for enabling Sir William Juxon Knight and Baronet, Executor of the last Will and Testament of William Juxon late Archbishop of Cant. to receive Part of his Estate; and their Lordships have heard all Parties therein concerned, and do think it fit to pass as it is, without any Alterations or Amendments."
Hereupon it is ORDERED, That the said Bill be engrossed.
Prizing Wines Bill.
Hodie 3a vice lecta est Billa, "An Act for the better Execution of the Law for Prizing of Wines; and for Prevention of the Sophistication of them."
The Question being put, "Whether this Bill shall pass?"
It was Resolved in the Affirmative.
Message to H. C. with it.
A Message was sent to the House of Commons, by Sir William Childe and Sir Justinian Lewyn:
To deliver the Bill passed this House, for the better Execution of the Law for Prizing of Wines, and for Prevention of the Sophistication of them; and to desire their Concurrence thereunto.
Bill for banishing the E. of Clarendon.
The Earl of North'ton reported, "That the Committee have considered the Bill for banishing and disenabling the Earl of Clarendon; and do think it fit to pass, with some Amendments."
Which being read Twice, and, after some Debate, a small Alteration being made at the Table, the House ordered the said Bill shall be engrossed, with the said Alterations.
Morley and Grenvile versus Elwes.
Upon Report made from the Lords Committees for Petitions, "That, upon Consideration had of the Petition of Cutbert Morley and Bernard Greenvile Esquires, against Jeremy Elwes and Henry Elwes, their Lordships do find that the Petitioners cannot be relieved in the ordinary Courts in Westminster Hall:"
It is thereupon ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, That Counsel shall be heard, at the Bar of this House, on both Parts, on Saturday the 14th Day of this Instant December, at Ten of the Clock in the Morning, upon the Matters complained of in the said Petition; whereof the Defendants Elwes are to have timely Notice, to the End they may be prepared for the said Hearing accordingly.
Report of the Conference concerning Freedom of Speech in Parliament.
Next, the Lord Chamberlain and the Lord Ashley reported the Effect of the Conference with the House of Commons Yesterday; which was managed by Mr. Vaughan, who said,
"He was commanded by the House of Commons to acquaint their Lordships with some Resolves of their House, concerning the Freedom of Speech in Parliament; and to desire their Lordships Concurrence therein.
"In order to which, he was to acquaint their Lordships with the Reasons that induced the House of Commons to pass those Resolves.
"He said, The House of Commons was accidentally informed of certain Books published under the Name of Sir George Crook's Reports; in One of which there was a Case published, which did very much concern this great Privilege of Parliament; and which, passing from Hand to Hand amongst the Men of the Long Robe, might come in Time to be a received Opinion as good Law.
"The House of Commons, considering the Consequence, did take Care that this Case might be enquired into, and caused the Book to be produced, and read in their House; and he thought (fn. 1) that the next and clearest Way to inform their Lordships is to read the Case itself, which is Quinto Caroli Primi, Michaelmas Terme; which Case was read, as followeth:
"The King versus Sir John Eliot, Denzell Holles, and Benjamine Valentine.
"An Information was exhibited against them, by the Attorney General, reciting, That a Parliament was summoned to be held at Westminster, Decimo Septimo Martii, Tertio Caroli Regis ibidem inchoat. and that Sir John Eliott was duly elected and returned Knight for the County of Cornwall, and the other Two Burgesses of Parliament for other Places; and Sir John Finch chosen Speaker: That Sir John Eliot, machinans & intendens omnibus Viis & Modis seminare & excitare Discord, Evil-will, Murmurings, and Seditions, as well versus Regem, Magnates, Prelatos, Proceres, & Justiciarios, & reliquos Subditos Regis, & totaliter deprivare & avertere Regimen & Gubernationem Regni Angliæ, tam in Domino Rege, quam in Consiliariis & Ministris suis cujuscunque generis, & introducere Tumultum & Confusionem in all Estates and Parts, et ad Intentionem that all the King's Subjects should withdraw their Affections from the King, the Twenty Third of February, Anno Quarto Caroli, in the Parliament, and Hearing of the Commons, falsò, malitiosè, & seditiosè used these Words, "The King's Privy Council, His Judges, and His Counsel Learned, have conspired together, to trample under their Feet the Liberties of the Subjects of this Realm and the Liberties of this House:" And afterwards, upon the Second of March, Anno Quarto aforesaid, the King appointed the Parliament to be adjourned until the 10th of March next following, and so signified His Pleasure to the House of Commons; and that the Three Defendants, the said Second Day of March, Quarto Caroli, malitiosè agreed, and amongst themselves conspired, to disturb and distract the Commons, that they should not adjourn themselves, according to the King's Pleasure before signified; and that the said Sir John Eliott, according to the Agreement and Conspiracy aforesaid, had maliciously, in Propositum & Intentionem prædict. in the House of Commons aforesaid, spoken these false, malicious, pernicious, and seditious Words precedent, &c.; and that the said Denzell Hollis, according to the Agreement and Conspiracy aforesaid between him and the other Defendants, then and there, falsò, malitiosò, ò seditiosò, uttered bæc falsa, malitiosa, & scandalosa Verba præcedentia, &c.; and that the said Denzell Hollis and Benjamine Valentine, secundum Agreamentum & Conspirationem prædict. &c. ad Intentionem & Propositum prædict. uttered the said Words, upon the said Second Day of March, after the signifying the King's Pleasure to adjourn; and the said Sir John Finch the Speaker endeavoured to get out of the Chair, according to the King's Command, they, Vi & Armis, Manu forti & illicito, assaulted, evil-intreated, and forcibly detained him in the Chair; and afterwards being out of the Chair, they assaulted him in the House, and evil-entreated him, & violenter, Manu sorti & illicito, drew him to the Chair, and thrust him into it; whereupon there was great Tumult and Commotion in the House, to the great Terror of the Commons there assembled, against their Allegiance, in maximum Contemptum, and to the Disherison of the King, His Crown and Dignity; for which, &c.
"To this Information, the Defendants appearing, pleaded to the Jurisdiction of the Court, That the Court ought not to have Cognizance thereof, because it is for Offences done in Parliament, and ought to be there examined and punished, and not elsewhere: It was thereupon demurred, and after Argument adjudged, That they ought to answer; for the Charge is for Conspiracy, seditious Acts, and Practices to stop the Adjournment of the Parliament, which may be examined out of Parliament, being seditious and unlawful Acts; and this Court may take Cognizance, and punish them.
"Afterwards divers Rules being given against them; videlicet, Sir John Eliott, That he should be committed to The Tower, and should pay Two Thousand Pounds Fine, and upon his Enlargement should find Sureties for his good Behaviour; and against Hollis, That he should pay a Thousand Marks, and should be imprisoned, and find Sureties, &c.; and against Valentine, That he should pay Five Hundred Pounds Fine, be imprisoned, and find Sureties.
"Then Mr. Vaughan laid much Emphasis upon the Words machinans et intendens, &c.; and then went on, That the House of Commons had not only read the Case as it was in the Book, but did look into the Record, where, in the Information itself, they found some considerable Differences from the Print; as, that the Crime alledged, consisting partly of Words spoken in the House, partly of Criminal Actions pretended to be committed: The Gentlemen accused pleaded severally, namely specially to the Words, and a several Plea apart to the Criminal Actions: But the Court dealt so crastily, that they over-ruled the whole Plea mingled together, and took it in general; so that perhaps whatsoever was criminal in the Actions might serve for a Justification of their Rule; and might make it seem in Time to come a Precedent, and a ruled Case against the Liberty of Speech in Parliament, which they durst not singly and bare-faced have done.
"The House of Commons did take Care to enquire, what ancient Laws did fortify this the greatest Privilege of both Houses; and they found, in the Fourth Year of Henry the VIIIth, an Act concerning one Richard Strowd, who was a Member of Parliament, and was fined at the Stannary Courts in the West, for condescending and agrecing, with other Members of the House, to pass certain Acts to the Prejudice of the Stannaries. This Act was made occasionally for him, but did reach to every Member of Parliament that then was, or shall be; the very Words being, videlicet,
"And over that, be it Enacted, by the same Authority, That all Suits, Accusements, Condemnations, Executions, Fines, Amerciaments, Punishment, Corrections, Grievances, Charges, and Impositions, put or had, or hereafter to be put or had, unto or upon the said Richard, and to every other of the Person or Persons afore specified, that now be of this present Parliament, or that of any Parliament hereafter shall be, for any Bill, Speaking, Reasoning, or Declaring, of any Matter or Matters concerning the Parliament, to be communed and treated of, be utterly void and of none Effect: And over that, be it Enacted, by the said Authority, That if the said Richard Strowd, or any of all the said other Person or Persons, hereafter be vexed, troubled, or otherwise charged, for any Causes as is aforesaid, that then he or they, and every of them, so vexed or troubled of or for the same, to have Action upon the Case against every such Person or Persons so vexing or troubling any contrary to this Ordinance and Provision, in the which Action the Party grieved shall recover Treble Damages and Costs; and that no Protection, Essoign, nor Wager of Law, in the said Action, in any Wise, be admitted nor received.
"He said, 'Tis very possible the Plea of those worthy Persons, Denzell Hollis, Sir John Eliott, and the rest, was not sufficient to the Jurisdiction of the Court, if you take in their Criminal Actions altogether; but as to the Words spoken in Parliament, the Court could have no Jurisdiction whilst this Act of 4 Henry the VIIIth is in Force, which extends to all Members that then were, or ever should be, as well as Strowd, and was a public general Law, though made upon a private and particular Occasion.
"He recommended to their Lordships the Consideration of the Time when these Words in the Case of Sir George Crook's Reports were spoken, which was the Second of March, 4to Caroli Primi, being in that Parliament which began in the precedent March, 3° Caroli, at which Time the Judgement given in the King's Bench about Habeas Corpus was newly reversed, which concerned the Freedom of our Persons, the Liberty of Speech invaded in this Case; and not long after the same Judges, with some others joined with them, in the Case of Ship-money, invaded the Propriety of our Goods and Estates: So that their Lordships find every Part of these Words, for which those worthy Persons were accused, justified.
"If any Man should speak against any of the great Officers, as the Chancellor or Treasurer, or any of the rest recited in those Acts, as by accusing them of Corruption, ill Council, or the like, he might possibly justify himself by proving of it: But in this Case it was impossible to do it, because these Judgements had preceded and concluded him; for he could make none, but by alledging their own Judgements, which they themselves had resolved, and would not therefore allow to be Crimes, which they had made for Laws.
"He did inform their Lordships, That the Bill in the Rolls hath another Title than that he did mention; this being that that the Clerks knew it by, rather than the proper Title.
"The Words in the Case are charged, ed Intentione; which ought not to be, for it is clear and undoubted Law, that whatever is in itself lawful, cannot have an unlawful Intent annexed to it. Things unlawful may be made a higher Crime by the Illness of the Intent. For Instance, taking away my Horse is a Trespass only; but intending to steal him makes it Felony: Borrowing my Horse, though intending to steal him, is not Felony, because Borrowing is lawful, and there were no Use of Freedom of Speech otherwise; for a depraved Intention may be annexed to any the most justifiable Action: If a Man eat no Flesh, he may be accused for the depraved Intention of bringing in the Pithagorian Religion, and subverting the Christian. If a Man drink Water, he may be accused of the depraved Intention of subverting the King's Government, by destroying His Revenue both of Excise and Custom.
"No Man can make a Doubt, but whatever is once enacted is lawful; but nothing can come into an Act of Parliament, but it must be first affirmed or propounded by somebody; so that, if the Act can wrong nobody, no more can the First Propounding: The Members must be as free as the Houses. An Act of Parliament cannot disturb the State; therefore the Debate that tends to it cannot, for it must be propounded and debated before it can be enacted.
"In the Reign of Henry the VIIIth, when there were so many Persons taken by Act of Parliament out of the Lords House, as the Abbots and Priors, and all the Religious Houses and Lands taken away; it had been a strange Information against any Member of the Parliament then, for propounding so great an Alteration in Church and State.
"Besides, Religion itself began then to be altered, and was perfected in the Beginning of Edward VIth's Reign, and returned again to Popery in the Beginning of Queen Marie's, and the Protestant Religion restored again in the Beginning of Queen Elizabeth's.
"Should a Member of Parliament in any of these Times have been justly informed against in the King's Bench, for propounding or debating any of these Alterations? So that their Lordships perceive the Reasons and Inducements the House of Commons had to pass these Votes now presented to their Lordships."
After this, the Votes were read; videlicet,
Votes for Freedom of Speech in Parliament.
"That the Act of Parliament Quarto Henrici VIII, commonly intituled, "An Act concerning Richard Strowd," is a general Law, extending to indemnify all and every the Members of both Houses of Parliament, in all Parliaments, for and touching any Bills, Speaking, Reasoning, or Declaring, of any Matter or Matters, in and concerning the Parliament, to be communed and treated of; and is a declaratory Law, of the ancient and necessary Rights and Privileges of Parliament.
"That the Judgement given Quinto Caroli, against Sir John Elliot, Denzell Hollis and Benjamin Valentine Esquires, in the King's Bench, was an illegal Judgement, and against the Freedom and Privilege of Parliament."
To both which Votes, the Lords agree with the House of Commons.
Judgement in the K. B. against Elliot, Hollis, and Valentine, to be reversed.
Upon Consideration had this Day of a Judgement given in the Court of King's Bench, in Michaelmas Terme, in the Fifth Year of King Charles the First, against Sir John Eliott Knight, Denzell Hollis and Benjamine Valentine Esquires; which Judgement is found to be erroneous:
It is ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, That the said Denzell Hollis Esquire (now Lord Holles, Baron of Ifeild) be desired to cause the Roll of the Court of King's Bench wherein the said Judgement is recorded to be brought before the Lords in Parliament by a Writ of Error, to the End that such further Judgement may be given upon the said Case as this House shall find meet.
Message to H. C. that the Lords agree to the Votes for Freedom of Speech.
A Message was sent to the House of Commons, by Sir William Childe and Sir Justinian Lewyn:
To acquaint them, that the Lords do agree to those Votes which were delivered at the Conference Yesterday.
Dominus Custos Magni Sigilli declaravit præsens Parliamentum continuandum esse usque in diem Jovis (videlicet), 12um diem instantis Decembris, hora decima Aurora, Dominis sic decernentibus.