House of Lords Journal Volume 11: 12 May 1662

DIE Lunæ, 12 die Maii.

Domini tam Spirituales quam Temporales præsentes fuerunt:

L. Chief Justice of the Common Pleas, Speaker this Day.

PRAYERS.

Message from H. C. for a Conference about the Bill for Money for Officers who served the King.

A Message was brought from the House of Commons, by the Lord Bruce and others:

To desire a Conference, concerning the Amendments in the Bill for Distribution of Three Score Thousand Pounds to the loyal Commissioned Officers.

The Answer returned was:

Answer.

That this House will give a present Conference, in the Painted Chamber.

Bill to prevent the Exportatation of Sheep, Wool, &c.

ORDERED, That the Committee for Wool and Woolfels do meet this Afternoon.

The Lord Treasurer, the Lord Privy Seal, the Earl of Portland, and the Lord Mohun, are appointed to report the Conference with the House of Commons.

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

Report of the Conference, concerning the Militia Bill.

Then the Lord Privy Seal reported the Effect of the Conference lately had with the House of Commons, concerning the Act for regulating the Forces of this Kingdom.

He said, "That Mr. Serjeant Charlton did, in the Name of the House of Commons, acquaint their Lordships, that this Conference was desired by that House, upon certain Amendments made by the Lords unto a Bill sent up from that House to their Lordships, for the settling of the Militia of this Realm: The First Amendment was in the 18th and 29th Lines; which, he said, was in Part agreed: The Difference was Noble (fn. 1); only in the Word ["Lord"] added to the Word ["Lieutenant"]; and their Reason was, that divers Acts of Parliament were extant, wherein the Word ["Lord"] was not added to "Lieutenant", as, the Second of Edward the Sixth, the First of Queen Mary, and the Fourth and Fifth of Phillip and Mary, Cap. 3. the 35th of Eliz. and the Third of King James, and also the Petition of Right.

"He added, The very Act of this Parliament, which was temporary, concerning the Militia, giveth not the Title of "Lord" to "Lieutenant"; and it will seem hard in the same Parliament to vary.

"Secondly, The Stile of "Lord Lieutenant" is not used in the King's Commission for Lieutenancy; neither in that Commission which includeth the whole Kingdom, where the Lieutenant is called "Locum tenens", and not "Dominus Locum tenens".

"Thirdly, Some Inconvenience might flow from such an Expression, especially coming from their Lordships: It might possibly be taken as some Restraint to the King's Power, if He could not make a Lieutenant unless he were first a Peer.

"Fourthly, It was very usual to call Men in great Places ["Lords"], though Acts of Parliament do not. And this seemed a little to justle with his other Reasons; whilst he allowed the customary Speech, yet denied to have that recorded.

"The next Amendment was in the 30th and 32 Lines, which they agreed to in Part; leaving out, after the Words ["to be"] in the Second Line of the Amendment, these Words ["Colonels, Lieutenant Colonels, Majors, Captains, and other Commission Officers"], and instead thereof inserting "Lieutenants of Companies and Troops, and all other inferior Officers".

The Commons sent it up thus, that the respective Lieutenants shall have Power and Authority to present to His Majesty, His Heirs and Successors, the Name of such Person and Persons as they shall think fit to be Deputy Lieutenants, and also the Names of such as they shall think fit to be Colonels, Lieutenant Colonels, Majors, Captains, and other Commission Officers.

"Their Lordships have altered it, by making the Power absolute in the Lieutenants, in commissionating all Officers without the King's Consent either precedent or subsequent. Yet thus far the Commons agree; that any under the Degree of a Captain may be made by the Lieutenant, so as these Words in their Lordships Amendment be left out; videlicet, ["Colonels, Lieutenant Colonels, and Captains"].

"The next Amendment was in the 32 Line: Agreed thus; inserting, before the Word ["upon"] in the 2d Line of the said Amendment, these Words ["to be Colonels, Lieutenants, Majors, and Captains, of the said Persons, so to be armed, arrayed, and weaponed as aforesaid"]; and adding between the Words ["Deputations"], and in the 3d Line ["and Commissions"], and after ["accordingly"] adding ["to continue during His Majesty's Pleasure"]; and after the Word ["said"] leaving out the Word ["Lord"]; and after the Word ["Directions"] inserting ["when they are not absent"].

"He said, The Powers that were granted in this Act were such as never were granted by Parliament. He instanced in Two Particulars:

"1. In having Power to lead Men out of their Counties.

"2. In raising of Money.

"And therefore he conceived this Amendment necessary, that such great Powers might be limited during His Majesty's Pleasure; and that the greater Officers under the Command of any Lieutenant should be consined to His Majesty's Approbation; for, he said, it was a very great Power to be trusted in any One Subject, to make Officers, and conduct Men out of their Counties. Such great Powers, he said, had need of sweetening, to make it grateful. And he thought the Consequence of taking away the Deputy Lieutenants Commission might be of ill Consequence, by leaving a Power in the Lieutenants to take away their Deputations in this Particular.

"The next was in the 47th Line. Some other Amendments might come under the same Head. He said, They did agree with their Lordships in the conducting Part, but differed with them in the charging Part. They had Reason, he said, to insist upon it, because probably the Lieutenant might be a Peer, and therefore not fit to charge the Commons. And as their Lordships were unwilling the Lords should be charged by the Commons, so he thought it unequal the Commons should be charged by any Lord. And therefore the Commons had amended it, so as the Deputy Lieutenants, on the charging Part, might have a Co-ordination with the Lieutenant.

"He added a further Reason: That hereby the Charge would be borne more willingly by the Subject, when it is imposed by the Gentlemen of the Country that are present there; and probably it would by such be more equally assessed, and so consequently be more grateful to the People.

"The next Alteration was in the 44th Line, which he conceived was only Vitium Scriptoris; and insert instead of ["pay"] "paying", and instead of ["as"] "and."

"Then he came to the 52 Line: Agreed; inserting, after the Word ["Directions"] in the 4th Line of the Amendments, these Words ["concerning their Meetings"], and leaving out the Word ["Lord"] in the 5th Line of the said Amendment.

"After this, he came to the 5th Line in the Fourth Skin, which concerneth the searching of Houses for Arms; unto which they agreed, with some Alterations; videlicet,

"After the Word ["Cities"] in the 3d Line, insert these Words ["and their Suburbs"]; and after the Words ["Town Corporate"] insert these Words ["Market Towns and Houses within the Bills of Mortality, where it shall and may be lawful to search in the Night Time by Warrant as aforesaid, if the Warrant shall so direct, and, in Case of Resistance, to enter by Force"]; and inserting, after the Word ["no"] in the First Line of the 4 Page of the said Amendment, the Word ["Dwelling"]; and after the Word ["Search"] in the 2d Line of the same Page, these Words ["by virtue of this Act"]; and after the Word ["Manual"] in the 3d Line of the same Page, insert these Words ["or in the Presence of the Lieutenant, or One of the Deputy Lieutenants, of the same County, or Riding; and that in all Places and Houses whatsoever, where Search is to be made as aforesaid, it shall and may be lawful, in case of Resistance, to enter by Force"]; and leaving out the Word ["Lord"] in the 4th Line of the said Amendment.

"He said, The Commons thought the Suburbs equally dangerous as Cities and Market Towns, and Houses within the Bills of Mortality as Towns Corporate. And as to the searching of the House of any Peer, they paid so much Respect, as to have it done in the Presence of Lieutenant or Deputy Lieutenant, being the chief Men in the Country. The Reason, he said, was, That the Houses of Commoners were their Castles as well as the Lords Houses, and could not be broken open. But they were willing to part with their Privilege, though they had not many left, for the Public Safety.

"The Lords, he said, had greater Estates, and more to lose, than the Commons; and therefore were more concerned in the Public Safety; so as, if Arms were laid up in a House of a Peer, to stay till the King's Sign Manual cometh, might lose the Opportunity of taking the Arms, or preventing of a Design.

"Besides, the Lords had divers Houses where they did not reside. And if there were any Sanctuary known exempted from searching, it is probable such Places might be made dangerous Repositories: And yet they pay so much Respect to the Lords, as to have such Places searched in the Presence of such unto whom the Safety of the County is committed.

"The next Amendment was in the 30 Line: Leave out the Words ["and not otherwise"], whereby he would involve their Lordships to pay not only for what they had, but for what they might have; for, he said, in Old Rents, there might be Fines, Heriots, and other real Profits; and therefore they leave out those Words, which might discharge their Lordships from that Burden.

"Then he came to the Fifth Skin, where the First Line is to be left out ["not being Peers; and that the Deputy Lieutenants, &c."]. The Reason of this Amendment is, in case the Deputy Lieutenant should be a Peer, it would contradict the former Clause.

In the 4th Line, they do not agree to the Alterations in the Proviso for Purbeck, the Lieutenant there being a Commoner, and he giving his Consent that it be co-ordinate.

"Then he came to the Amendments in the Seventh Skin; leaving out the Word ["Lord"] in both, and inserting, after the Word ["Direction"] in the Amendment to the 22th Line, ["when they are not Absent"].

"This was but a temporary Clause; and therefore they insisted on it.

"Then he came to the Amendments in the Eighth Skin, which concerned the Warden of the Stanneries; which they agreed to, with this Addition, That the former Qualification mentioned in the Bill might be annexed to this concerning the Stanneries, in the 49th Line of the same Skin; and it goeth thus, inserting after the Word ["him"] in the 5th Line of the Amendment these Words ["according to the Rules and Directions before mentioned in this Act"], and concluding the Amendment with these Words ["observing the Rules and Proportions appointed by this Act"].

"The next Amendment was in the 47th Line of the Eighth Skin, concerning Tenants; that every Tenant should perform his Agreement.

"It would be hard that every Foreign Charge should be put upon the Tenants; which, he said, would be in their Lordships Words; being so general, and so might extend further than was intended: Therefore the Commons were willing to take no more from the Tenants than was necessary.

"Concerning the Monthly Tax in the 45th Line in the Fifth Skin, adding the like Monthly Payment, to that after the Word ["said"]; which they do to avoid doubtful Expositions which would follow, and therefore have added the (fn. 1) Words ["every other, &c."].

"Then he came to their Lordships Provisos; which, he said, were Three: The Two First they did not agree to; the last Proviso they agreed to, with some Alterations.

"The Reasons he gave against their Lordships First Proviso:

"First, Though the Ten Pounds mentioned were voluntary, yet it bordered too near upon raising of Money; which, he said, ought to have his Rise from the House of Commons.

"Secondly, It did change a Duty into a Pecuniary Mulct.

"Thirdly, It might prove too great a Temptation to turn all the Horse of England into Money; and such as would not, may, by Occasion thereof, be hardly used. He said, It might give Occasion of Jealousy, as looking toward a Standing Force: Not that, he said, the Commons have any Jealousy of this Age; but, in making of Laws, that ought to be looked after what might be.

"He added, That there was no Clause in their Lordships Amendment to punish Disobedience, and regulate the Horse. It might happen (he said) that Horse might be assessed, and yet no Horse provided; which was too light to leave in a Law, and such a Law which was to be perpetual.

"Then he came to their Lordships Second Proviso, concerning the Clerk of the Council; concerning which he said, That the Act takes nothing from him; and therefore there needs no Saving for him. He said, The Commons did not know how his Title stood; but, at the best, a Saving was superfluous.

"Then he came to the last Proviso, concerning charging the Peers by Five of the Council being Peers: To which they agree in Part, with this Alteration; insert, in the 33th Line, after the Word ["Horse"], the Word ["Horseman"]; and Line 34, inserting after the Word ["Arms"] these Words ["or Foot Soldiers and Arms"]; and leaving out, Line 35, these Words ["being Peers of this Realm, and not otherwise"], and inserting instead thereof these Words following ["for their Houses and Lands in their respective actual Possession and Occupation for the Time being, the true Value whereof being certified to the King's Majesty and His Privy Council by the respective Lieutenants and their Deputies, or any Three or more of them, who are hereby required to make the same before the First Day of November, 1662, so as such Assessment and Charge be made as aforesaid within Six Months next after the First Day of August, 1662, or within Three Months next after such Certificate, which shall first happen, under the Hands of Three of the said Privy Council, to the respective Lieutenants and Deputies, or any Three of them, within One Month after such Assessment and Charge, which Lieutenants and Deputies, or any Three of them, shall in all Cases proceed upon such Assessments and Charge, by inflicting of Penalties and otherwise, according to the Powers, Rules, and Directions of this Act, as if such Assessments and Charge had been made by such Lieutenants and Deputies, or any Three of them; and in Default of such Assessment and Charge, or of Certificate of such Assessment and Charge to be made in Manner aforesaid, then such Peers so not assessed and charged, or not procuring such Certificate, shall be assessed and charged for such Houses and Lands, in such Manner, according to such Rules and Proportions, as he for the Residue of his Estate, or any other Person for his whole Estate, by virtue of this Act, is to be assessed and charged"].

"This, he said, was the Alteration; wherein they endeavour to agree with their Lordships so far as they could.

"The Reasons of Dissent from their Lordships were, First, That their Lordships were not assessed in this Act as Peers, but for their Lands.

"In the Poll Bill, the Commons yielded their Lordships to be assessed by Peers, because they were assessed there for their Honours: But this being a Land Tax, and common to all, their Lordships are not charged as Peers; and therefore the Commons in this Case took the surest Way for the effecting of the Service.

"He added, That in this they did not innovate; but went the Old Way of Subsidies, in which there was no Distinction, nor any Way of Difference of Commoners from the Lords.

"He said, Their Lordships in the Monthly Assessment were equally assessed with the Commons, without any such Distinction of Commissioners being Peers, to assess their Lordships.

"He added (forgetting it seems what he had said before for the Co-ordination of the Deputy Lieutenants with the Lord Lieutenants in charging), That this was not an Assessing by the Lieutenants or Deputy Lieutenants, but by the Parliament; and so their Power was but exemptive, and indeed a Ministerial Work; so as it will rather be a Diminution to their Lordships in that Point, than an Advantage.

"He closed with this, That, in so extraordinary a Matter, the People of the Nation should see the same Rule extended to all, in that which so much concerned the Public Safety."

After this Report made, it being late, it is ORDERED, That this Report shall be taken into Consideration To-morrow Morning, at Nine of the Clock, the First Business.

Bill to prevent Stoppages in the Streets of Westminster.

ORDERED, That the Committee for the Bill against Stoppage of the Streets with Carts shall meet this Afternoon.

Vavasor, Mawe, & al. Delinquents, concerning Hatfield Level.

Whereas Thomas Vavasor, Edmond Mawe, and others, are now in the Custody of the Serjeant at Arms attending this House, by virtue of an Order of the Tenth of March last past, upon some Misdemeanors then complained against them concerning the Level of Hatfield Chace: but, by reason of the great and public Affairs of the Kingdom, and Straitness of Time, their Causes cannot come to Hearing at this Bar, as was intended:

It is ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, That the said Persons, and every of them, are to be released of their Restraint or Imprisonment, upon paying their Fees, and giving such reasonable Bail as they are able, unto the said Serjeant at Arms, to appear before the Lords in Parliament within Ten Days next after they shall be served with an Order of this House, to answer such Matters as now are charged upon them; and likewise that they in the mean Time demean themselves peaceably and quietly in relation to the said Level, according to former Orders of this House; and the Sheriffs and Justices of Peace near the said Level are to take Care for keeping of the Peace, according to Law, as several Orders of this House have enjoined in that Behalf: And hereunto all Persons concerned are to yield Obedience, as the contrary will be answered at their Perils.

Adjourn.

Dominus Capitalis Justiciarius de Com. Placit. declaravit præsens Parliamentum continuandum esse usque in diem crastinum, videlicet, 13^um diem instantis Maii, hora nona Aurora, Dominis sic decernentibus.