House of Lords Journal Volume 12: 27 January 1671

DIE Veneris, 27 die Januarii.

Domini tam Spirituales quam Temporales præsentes fuerunt:

REX.

PRAYERS.

The Lord Chief Justice of the Court of Common Pleas sat Speaker this Day, in the Absence of the Lord Keeper.

Report of the Conference on the Bill against maiming, &c.

The Lord Chamberlain, with the Assistance of the other Lords that were appointed to report the late Conference with the House of Commons, concerning the Amendments in the Bill to prevent malicious maiming and wounding, made Report of the Effect of the late Conference.

His Lordship said, "That the First Person that spoke at this Conference was Sir Thomas Meares; who shewed wherein the House of Commons did agree, and wherein they did not agree, to their Lordships Amendments

"That they did agree to the First Amendment, for Alteration of the Word ["Wicks"] to be ["Wilkes"]

"To the Second, which was instead of ["on or before the Sixteenth Day of February, in the Year of our Lord One Thousand Six Hundred and Seventy"] these Words to be inserted ["within Five and Twenty Days next ensuing from the Day that His Majesty's Royal Assent to this Act shall be entered, and appear of Record, in the Journal of the House of Peers"], the House of Commons do not agree

"To the Third Amendment, instead of the ["said Sixteenth Day of February"] to be ["Five and Twenty Days aforesaid"], the Commons do not agree

"To the Fourth Amendment, instead of the Word ["add'] to be ["or be found"], the Commons do agree

"To the Fifth Amendment, instead of ["aforesaid"] to read ["in the Year of our Lord One Thousand Six Hundred and Seventy"], the Commons do agree.

"To the Sixth Amendment, the Commons do agree, with these Amendments, videlicet, leave out ["Four and Twentieth Day of June, which shall be in the Year of our Lord God One Thousand Six Hundred Seventy and One"], and instead thereof insert [said Sixteenth Day of February"]

"Leave out the Words ["and not by Chance Medley, Fray, or Misfortune"]

"In the 7th Line of the said Amendment, after the Word ["Nose"] add [cut off a Nose or Lip'], and after ["Limb'] add ["or"], and after the Word ["Member"] leave out ["or Joint']

"In the 8th Line, after the Word ["Majesty"] leave out ["with Intention in so doing to maim or disfigure in that special Manner such His Majesty's Subject"]

"To the Seventh Amendment, after ["Abettors"] add ["knowing of, and privy to, the Oflence as aforesaid"], the Commons do not agree

"To the Eighth Amendment, after ["that"], to leave out all the Words in the Bill to the Word ["provided"] in the 27th Line, and instead thereof to read ["One Article concerning cutting out the Tongues or putting out the Eyes of any His Majesty's Subjects purposely, and of Malice prepensed, in the Statute made in the Fifth Year of King Henry the Foarth, shall, from and after the 24th Day of June aforesaid, stand and be, and is hereby, repealed"], the Commons do not agree

"The Reasons which were given by Sir William Coventry

"That as to the Second and Third Amendments, wherein the Commons differed from their Lordships, it did relate to the Time limited for the coming in of Sir Thomas Sandys, and those other Persons which were nominated in the Bill, which the Commons conceived ought to be a Day certain.

"He observed, That, as I was amended, then Lord ships had left the Day uncertain, no Man knowing when the Royal Assent would be given to the Bill, and so consequently not certain when the Twenty five Days after it would expire, that the Way of coming to the Knowledge of the Time when the Royal Assent is given, being by View of the Journal Books, is such as Persons in their Condition, being sled, cannot take Notice of, they having no Opportunity to peruse the Journal Besides, this Way is unusual, and not precedenced by any former Act.

"That the Sixteenth of February, limited for the com ing in of those Persons who are excluded from Pardon, doth agree better with the 14th of February (to which then Lordships have concurred) for the Time limited to those others who are to be pardoned in case they should come in and discover what they knew of this wicked Fact

"That the Commons did think it reasonable, it lets for the same Crime, that the Days limited for Mercy to some of the Offenders, upon then coming in, and discovering then Knowledge, and Exclusion of others more notoriously guilty from Pardon, should be fixed to near the same Time, Respect only being had to make the Time for the Discoverous a little earlier than the Day for Exclusion of the others from Pudon, that Use might be made (if Occasion were) of the Evidence which these might give against the others, more notouous Offenders

"That Two of the Offenders were now in Custody, and were to be tried the next Sessions, and the before it was necessary, that the longest Day limited for any of the Offenders to come in should be the 16th of February, because, otherwise, the Evidence upon the Trials of these Two who are talen, being opened and made public, would give great Advantage to Sir Thomas Sandys and Mr Obrian (whom they knew, and could prove, to be more eminently active in this wicked Practice than some others), by acquainting them beforehand where the Strength or Weakness of the Evidence against them did consist, and so put the more principal Actors into a better Condition than some other of the Offenders

"To the Sixth Amendment, that to Disorders of so high a Nature speedy Remedy ought to be applied, that such Facts are in themselves unlawful already, which is Warning enough for Men to abstain from them

"That, in old Time, Men did not so easily evade the Punishment of the Law, Clergy being an Advantage which but few could receive Benefit by, whereas now almost every Man can read And therefore, considering this Circumstance, with the Time when the other Act was made, the Law is not much changed

"As to the Addition of the Words ["not by Chance Medley, &c"], that the Words ["Malice forethought"] provides the same, and implies as much The Words ["sudden Affray"] is very prejudical to the Act, and will open a Gap to elude all, for a Man, though he out of Malice forethought intends to do such a Mischief, may make a sudden Affray, to have the better Opportunity to act his intended Villany, and upon these Words of ["sudden Affray"] will escape all the Punishment of this Act

"That then Lordships have omitted the cutting of the Lip, which is a Thing is mischievous as the cutting the Nose, and changed cutting to slitting of the Nose

"That their Lordships have added ["Joint or Mem ber"], which the Commons do think too extensive, for, if a Man shall cut off but the Joint of a little Finger, by this Act it is Felony, and the Offender to be put to Death, which they conceive to be too great a Punishment for so small an Injury

"And lastly, to the Words ["of Intention in so doing"], it is already provided for by the Words ["on Purpose, and of Malice forethought, and by lying in Wait'], and that the Clause is so circumsenbed by the Words ["with Intention in so doing to mam or disfigure in that special Manner such His Majesty's Subject"] is makes the Whole ineffectual

"To the Seventh Amendment, ["knowing of, and privy to, the Offence as aforesaid"] is superstuous, Aiders, Counsellors, and Abettors, being the same, and implying as much

"To the Lighth Amendment, the Commons do observe, That it is offered them instead of such a Clause appointed by the Lords to be left out, which being a Repeal of a former Law, they except against the Manner of inserting it into this Bill, for, had it been offered as a distinct Law, the Commons would have agreed to it

"As to the Clause left out by the Lords, which concerns the Security of Members of Parliament, the Commons do say, that it is usual in particular Cases, especially such as concern Parliament Men (nay, if they concern but even their Servants, as that of 5^to H. IV.) to make distinst Laws.

"That it would seem strange, if, upon the Commission of so horrid a Fact as this, no special Notice were taken of it, and no Provision made to secure others from the like Attempts.

"That the Thing in itself is but reasonable, that Parliament Men should be differenced from other Subjects; and that only Choler, or some private Quarrel, does provoke other Men to Revenges; whereas Members of Parliament are many Times upon the public Account exposed to Hazards of these Natures: As for Instance, in inquiring into Grievances, some Members may say Things which may provoke some particular Person; or perhaps a Private Bill may be offered, wherein particular Persons may think themselves injured; or possibly something may be said in the Debate of a Private Bill, which some may construe as a Reflection upon them: Thus by many Ways are Members of Parliament exposed to the Danger of Affronts more than other Men; and therefore had Need in some particular and special Manner to be protected; and indeed, it is a Concern of the Public that they should be so.

"And it is not creating of a new Crime; but only inflicting of a new Penalty upon that which is already an Offence against the Law."

This Report being ended, the House took into Considuration the First Amendment not agreed to by the House of Commons, concerning the altering of the Day ["for Sir Thomas Sandys, &c. rendering themselves"] from the 16th of February, 1670, to Twenty-five Days next ensuing from the Day that His Majesty's Royal Assent to this Act shall be entered and appear upon Record in the Journal of the House of Peers.

Which being read; after Debate thereof,

The Question being put, "Whether this House shall adhere to this Amendment now read?"

It was Resolved in the Affirmative.

Ly. Harby, Queen's Servant, Privilege.

Upon reading the humble Petition of Dame Elizabeth Harby; complaining, "That, being the Queen's Majesty's Servant, she was on the 12th Day of December last arrested, upon a Mean Process, at the Suit of one Thomas Norton, and afterwards charged in Execution, at the Suit of Thomas Ireton and Mathewe Boucheret, and is now a Prisoner in The Fleete:"

It is ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, That the Lord Keeper of the Great Seal of England do issue out a Writ of Habeas Corpus, awarded to the Warden of The Fleete, for the bringing of the Body of the said Dame Elizabeth Harby to the Bar of this House on Tuesday next, being the One and Thirtieth Day of January Instant, at Ten of the Clock in the Forenoon.

Cusack versus L. Dungannon & al.

Upon reading and considering of the humble Petition of John Cusack Gentleman, Son and Heir to Bartholmeve Cusacke Gentleman, deceased, being an Appeal from a Decree made by the late Commissioners for Claims in the Kingdom of Ireland:

It is ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, That the said Petition of the said John Cusack is hereby referred to the Lords Committees for Petitions; whose Lordships are to consider, upon what is alledged in the said Petition, whether it be properly and regularly brought into this House; and afterwards to make Report thereof unto the House.

D. of York, Privilege:- Bradway & al. discharged.

Whereas, by Order of this House, dated the Three and Twentieth Day of January Instant, the Serjeant at Arms attending this House was required to attach the Bodies of Abraham Bradway, Lucas of Colchester an Attorney, Vincent Hawdler, and George Thompson Esquire, for some Proceedings by them had, concerning certain Oyster Layings belonging to his Royal Highness the Duke of Yorke, fitting the Parliament, contrary to the Privilege of Parliament:

It appearing that his Royal Highness hath received Satisfaction upon further Information concerning this Matter, it is thereupon ORDERED, by the Lords Spiritual and Temporal in Parliament assembled (at the Motion of his Royal Highness the Duke of Yorke on their Behalf), That the said Abraham Bradway, Lucas, Vincent Hawdler, and George Thompson, be, and are hereby, discharged from any Attachment made, or to be made, by or in Pursuance of the said Order of this House.

Adjourn.

Dominus Capitalis Justiciarius de Com. Placit. declaravit præsens Parliamentum continuandum esse usque in diem Sabbati, 28^um diem instantis Januarii, hora decima Aurora, Dominis sic decernentibus.