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 Lunæ, 17 die Decembris.
Bp. of Hereford, Leave to be absent.
Wharton's Lead Mines Bill.
South'ton Churches Bill.
Message from H. C. with a Bill.
A Message was brought from the House of Commons, by Sir John Currition and others; who brought up a Bill, intituled, "An additional Act for enabling a Sale of Lands to pay the Lord Strangford's Debts;" whereunto their Lordships Concurrence is desired.
Message from thence, for a Conference about the Canary Company's Patent.
Bill to illegitimate Ly. Roos's Children.
L. Abergaveny's Bill.
Report of the Conference on the Bill to prohibit the Importation of Irish Cattle.
Next, the Lord Privy Seal reported the Effect of the Conference with the House of Commons on Friday last, concerning the Amendments and Proviso in the Bill against importing of Irish Cattle, as followeth:
"That Sir Robert Howard began this Conference; who said, He was commanded by the House of Commons to speak unto some Amendments sent down by your Lordships to the Bill for prohibiting the importing of Irish Cattle. The Amendments were Three:
"1. Because the Words ["Detriment and Mischief"], offered by the Lords instead of the Word ["Nuisance"], are new, and not legal Words, and of uncertain Construction; and the Word ["Mischief"] is a Word applicable to a Private Damage, and opposed to a Public.
"2. They say, that Words in a Public Act ought to be clear and certain, and not new, nor unusual, or of an uncertain Signification in Law; but the Word ["Nuisance"] is a Term in Law, and of certain Signification.
"4. The Judges have declared, in their Charges at the King's Bench, that new Buildings are Nuisances, though in themselves they are not so, but by their Consequences. Buildings, he said, were useful to Mankind; that they were far from being evil in themselves; yet, when they come in One Place to be multiplied too much, they become a Nuisance. He said, Your Lordships had agreed in the Preamble, that the coming in of Irish Cattle was very destructive to the Welfare of the Kingdom of England; and therefore he thought the adding of your Lordships Words did much diminish that Assertion, amounting to no more than Damages; and the Words ["Detriment and Mischief"] are Words of far less Import, and commonly applicable to petty and lesser Prejudices.
"5. The Word ["Nuisance"] is a Word to prevent Suits in Law; therefore most proper and useful, being indictable and presentable; and also it prevents Trouble to His Majesty, in preventing Importunities to obtain Licenses and Dispensations, since there may be in England many considerable Persons that have Interest in Ireland; and also that the People of England, to whom the coming of Irish Cattle are declared destructive, may receive full Satisfaction that they shall not be prevented of the Benefit of this Law, and give a thorough Encouragement for the Breeding of Cattle.
"As to the Proviso of bringing in dead Cattle for the City of London, Sir Richard Ford had acquainted the House of Commons, that the City of London would wave that Present, and rather expect what might be done for them hereafter, in regard dead Cattle would be useless to them.
"The next that spake was Sir Richard Temple; who said, He had some Precedents to offer your Lordships in the Case. And the First was out of the Year Book of King R. III, the Abbot of Burye's Case, who was presented for making corrupt Leather; and the Judges adjudged, That all Nuisances at Common Law are inquirable and presentable in Court Leets. Yet divers Things are made Nuisances by Statute, which are not so at the Common Law, as the Case of Forestallers and Regraters in Markets. And it appears by the Year Book of 3 H. VII, that those Offences were not inquirable at Common Law, but made Offences inquirable by virtue of Statutes, whereas all Court Leets inquire by Prescription.
"Some late Statutes have declared Things to be Nuisances; as the Statute against exporting Leather, which was sometimes the Trade of the Nation, but now declared to be a Nuisance; the like of Fullers Earth.
"He observed, That Leather, and the Exporting thereof, was sometimes reckoned amongst the Staple Commodities of this Realm; yet now, by Statute, the Exporting thereof is declared to be a Nuisance. Though a Nuisance in Common Law is said to be Malum in se, yet that is not to be taken strictly; the Meaning is, that there is a Malum in it, ad Nocumentum Ligcorum Domini Regis, and so ought it to be in the Indictment; for new Buildings are good in themselves, but when they grow too numerous, they make the Air infectious, and add other Inconveniencies.
"To which he answered, There was as much Hurt in clogging Markets, as in Scarcity. And he said, our Trade and Markets were best, when no Cattle came from Ireland. He thought, what was declared, in Effect did speak it a Nuisance. Many Words besides Nuisance amount unto the Thing in Effect. He knew little Difference between a Public Damage and a Nuisance. But the using of the Word Nuisance would be of great Benefit, to prevent Multiplicity of Actions; for then no Man can have a Private Action, if it be declared a Nuisance.
"And if your Lordships should leave it in those uncertain Expressions inserted by your Lordships, you put His Majesty upon this Difficulty, that if He should dispense with the Acts, He dispenses with that you have declared to be for the Good of the Kingdom of England; and if He do it not, you put His Majesty to deny the Kingdom of Ireland.
"He thought, if One Word could serve Turn, more should not be used. He that gave the Rule to Magistrates to avoid Verbosity, did prudently. Laws should be made, as the Historian observed, Imperatoria Brevitate.
"So he observed of the Word Premunire, made an Offence by Statute, to forfeit all his Goods and Profits of his Lands for Life, and to be imprisoned during Life; and it is to be observed, that the Law in this Word hath made a new Rule, and turned a Verb into a Noun Substantive.
"The Common Law doth distinguish between Malum in se, and Malum prohibitum; Malum in se as that which is against the Decalogue: The Law forbiddeth whatsoever is Malum in sc, and with that the King cannot dispense.
"We have Cattle enough of our own; and the multiplying of those beyond Proportion may be a Mischief, and may be as sending Coals to Newcastle, which would be little welcome there; for that will occasion the leaving our Grounds unstocked and unmanured; it drains us of our Money, and supplies us with that we need not. And therefore the House of Commons thought it proper to express it by that Word.
"He said, Divers Things have been thought on in Law to prevent Dispensations with them; and therefore at first they declared, that Licenses obtained against Statutes should be void: 27 E. III. Cap. 7. 14 H. VI. C. 2. 21 H. VIII. C. 13. 25 H. VIII. C. 9.
"But this did not serve; and therefore, in 7 R. II. C. 12. the King there commanded all His Subjects not to sue to Him for a License. But the Statute of 21 H. VIII. C. 13. there was a Penalty added, and declared that a Non Obstante should be void. But this the Judges notwithstanding held this Non Obstante good, and so that was ineffectual. Therefore Nuisance was brought into Statutes; and this doth what the other Expressions in former Statutes could not.
"He thinketh it will be much for the King's Ease. However, His Majesty is free to grant or to deny it; they can but advise. The King can do no Wrong; so saith the Law, for such a Power would rather argue Impotency than Power.
"To the Proviso concerning Cattle to be sent out of Ireland to the City of London, the Commons desire it may not seem strange to reject a Charity to that famous City in its Calamity; but, when the Concernment of a whole Nation comes in Competition, that ought to weigh down. We know the Trojan Horse was made so big, that the Walls (fn. 1) were pulled down to make Way for its Reception."
Bill to prohibit the Importation of Irish Cattle.
Committee to draw Reasons in Answer to H. C.
The Lord Privy Seal, Duke of Bucks, Lord Chamberlain, Earl of Bridgwater, Earl of Anglesey, Lord Lucas, and the Lord Ashley, or any Three of them, are appointed Committees, to prepare Reasons, to be offered at a Free Conference, in Answer to the Reasons offered by the House of Commons at their last Conference, upon the Bill against importing Irish Cattle; and to declare, "That the House of Peers do resolve, not to admit the Word Nuisance in the Bill; and to acquaint the House of Commons, that, as an Expedient, the House of Peers do propound the petitioning His Majesty, if the Bill do pass, not to grant any Dispensations for the Importation of Irish Cattle."
Whereas Thomas Pritchard, of Greys Innc, Esquire, being in the Custody of the Gentleman Usher of the Black Rod attending this House, for speaking scandalous Words against a Warrant issued out of this House, dated the 12th of November last, for the apprehending of Samuell Pritchard and Roderick Gwyn, was this Day brought to the Bar, where he craved the Pardon of this House for his said Offence:
It is thereupon ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, That the said Thomas Pritchard be, and is hereby, discharged from his present Restraint for the same, paying his Fees: And this shall be a sufficient Warrant in that Behalf.