Tuesday, June 8.
Sir John Robinson, Lieutenant of the Tower.] The
Black Rod came with an Order to him, from the Lords, to
deliver into his hands the gentlemen committed to him
by your Order. He has received your Votes, and has
them in his hand. (He reads that Vote relating to himself.) About an hour after, Sir George Charnock
brought him four Writs of Habeas Corpus, for the gentlemen in his custody. He has obeyed your Order hitherto, and shall not desist obeying you (fn. 2) .
Sir Thomas Lee.] Thinks, that if ever any man did
you service, Robinson has done it, and he deserves being
owned by you for it.
Mr. Vaughan.] He has done very faithfully and boldly, and deserves that you should take notice of him for it.
Sir Thomas Littleton.] This being a very extraordinary
case, desires the Lieutenant may have the thanks of the
House, for his carriage in this business.
Sir John Hotham.] A modest and a bold man deserves double thanks, and he would have it voted.
Mr Attorney Montagu.] With thanks, would have
you resolve to assist and protect him in what he has
Sir Thomas Lee.] You may remember, that, in the
case of Barnardiston, you voted "that he had done as a
Commoner of England," which is more than thanks.
Mr Garroway.] Would do any thing to put a fair
character upon the Lieutenant of the Tower, but would
do what will conduce to leave him with the fairer character from the King. (He matters not what the Lords
do.) Would have the Vote pass in the same Words as that
of Sir Samuel Barnardiston.
Colonel Birch.] He knows very much the worth of
the person, and he knows his own interest too. He takes
the Vote mentioned to be greater than giving him thanks,
and would have it pass.
Sir Robert Howard.] Knows not why such a Vote
should exasperate the Lords against the Lieutenant. This
Vote says, "He has done his duty," and he would have
it declared so.
Sir Thomas Meres.] He has done his duty, but in a
dangerous concern. It will provoke none but such as
will be his enemies to the utmost.
Sir Thomas Lee.] Affection and thanks are all the payment and coin this House can give him, and he would
Mr Powle.] By this Vote of Thanks, you cast something upon him, that may make the people stare.
Would vote that he has done well, but would never
thank his fellow-subject—only the King.
Sir William Coventry.] Though the Speaker be the
first Commoner of England, he is but our fellow-subject;
yet we have thanked him.
Mr Sacheverell.] Moves to his advantage, in some
gentlemens words relating to your Order, that the Lieutenant has faithfully discharged his trust.
Thanks were voted.
The Speaker.] Directing his Speech to Sir John Robinson: "You having, like a worthy person, and a trusty
Commoner, done your duty, in obeying the Orders of
this House, in the name of the Commons, I give you
the thanks of the House for it."
Ordered to be entered upon the books (fn. 3) .
Sir Thomas Littleton.] All this time having been
elapsed, and we having no return of an answer from the
Lords, about the last Message for a Conference, to the
end we may not fail on our part, would have a Message
sent to the Lords, to remind them of it; and, in that
interim, the Mace may go into the Hall to require your
Sir Richard Temple.] How unusual is it to send such a
Message!—Appeals to you, whether in a Parliamentary
Constitution it may be done.
'Twas said to be the usual form in such cases.
The Speaker.] Informed the House, That Sir George
Charnock has, this day, in the Court of Chancery, made
proclamation, for Sir John Robinson to bring the prisoners
to the Lords Bar.
The Messengers went and delivered the Message to remind
the Lords of the Conference desired, with the Bill for exportation of leather. But they were ordered not to stay for an
The [several Writs of] Habeas Corpus were read severally, directed "To the Lieutenant of the Tower," and all of them run
returnable, "coram nobis in præsenti parliamento."
The Speaker.] They are signed by no body, but
indorsed per custodem magni sigilli F. C. S. (Finch Custos
Sir Thomas Stringer.] Observes, that there is no Test of
the Clerk of the Crown, which ought to be to the Writ.
Moves in behalf of the Lieutenant of the Tower, for your
direction. The Question was yesterday, to what place
the Lieutenant should bring these prisoners, and returns were argued in superiore et inferiore domo, these
Writs being returnable coram rege in parliamento.
Mr Sawyer.] The less that is said in this case is the
most to your service. Here has not been any Motion made
to you for this Writ. He advises that the Lieutenant
of the Tower make no return upon this Writ. To show
the imperfections of this Writ now, would be to teach
the Lords how to mend it. He would let the Lords
possess their error.
Mr Sacheverell] Agrees for directions to the Lieutenant. The next process, of course, is an alias, so 'tis time
enough for that, which must be pursuant to this. You
may be provided for that against the next Writ.
Sir John Robinson.] Is informed that the Lords have
already granted an alias Habeas Corpus. He humbly
desires to be freed from farther danger.
Mr Mallet.] Thinks you have the upper ground of
the Lords, the Writ being returnable in a legislative
Court. A legislative Power is unconfined, and higher
than inferior Courts. It is for the support of the law that
you punish these lawyers.
Serjeant Maynard.] What will come of it is not the
Question, but what may and ought to come is proper to
be considered. If no return be made to an alias, that
requires no more than the first Writ; the third Writ is
a plures, quare mandatum tibi directum non sit executum,
and upon refusal the Warden of the Tower is fined.
Sir John Otway.] Here is the Great Seal to these
Writs, and should no return be made, it would be of
great consequence, and therefore desires some persons to
consider of it, and report their judgments. (All the rest
was yesterday's arguments.)
Sir John Birkenhead.] If you will have any opinion of
the Long Robe, the Writ running ne omittas, would
not omit them.
Mr Attorney Montagu.] The Writ is unprecedented.
There never was such a Writ before. The Courts out
of which the Habeas Corpus comes, have Seals of their
own. Though the Writ is not legal, yet it is under the
King's Seal. The place the Writ is returnable to is
not sitting, viz. the Lords House. They are risen,
and gone—If, by way of bail, or fine, it must be estreated in the Exchequer, and believes they will not judge
Sir Thomas Clarges.] If a Seal be illegal, they say below stairs, the King is deceived in his Grant, and it is
voided, and no disrespect to the King by it.—But, in
this case, would give directions. The Lord Keeper has
no Power to grant a Writ, that was never in practice,
and he would have a Committee to enquire into the precedents of this matter. If in one case,—They bring in
all the causes of England before the Lords upon detainer, and he believes you will not scruple to call the
Lord Keeper to an account for this, as an affront to
you, to direct the Writ to the Lieutenant of the Tower;
he having a Deputy, it ought to be directed to him. To
call the Lieutenant's attendance from this House, is a
breach of Privilege.
Sir Richard Temple.] No man can show a precedent
of a Writ from either House. You send either the Mace,
or Assistants of the Chancery. As to sending Habeas
Corpus, this is such a proceeding as strikes at the root
of Parliament. Can we be made a party to show cause,
at the Bar, of this commitment? The last Writ of the
three is, "to show cause why he does not execute the
Sir Charles Harbord.] 'Tis to bring in the body, and
then to show Cause, without Question. 'Tis a Breach of
Privilege upon your Member.
Colonel Birch.] He hears of great errors in this Writ,
but it is said, "to speak of them would be to make the
Lords mend them." But, he thinks, there is no such
Writ. One place is yet penetrable, and that is, by
Conference, and rather than stay for a plures, would go
upon it now. If this Writ be not Breach of Privilege,
he knows not what is.—'Tis an unusual Writ, and if there
be no precedent for it, a greater fault than before.
Would debate these things at a Conference, and send
Sir Thomas Lee.] Understands not the nature of these
Writs, but looks not so much upon the Writ as the
Privilege. How can the Lords take cognizance of this?
—A new invention to keep people in prison! The Lord
Keeper has great interest with the Peers, and he sends
these Writs. He fears that Westminster-Hall will scarce
dare to judge these Writs, and then what will be the
case of you or I, if the Parliament were up, and another
Parliament were to be, to them that are not of it? To
say, "that the lawyers are committed by you appears not
yet, because there is no return made by the Lieutenant"
A fine way of the Lords to judge of any man's liberty
whatsoever! Would have the Long Robe consider of
this till to-morrow, and you to take care for the future, at the Lord Keeper's, that these Writs may be
for ever stopped, and that all may be buried at this
The Speaker.] You know not yet regularly, that, by
order, these Writs were issued out by the Lords.
Mr. Garroway.] As long as the Lieutenant can take
his measures upon the Debate, would assert your Rights
as high as any man, and is satisfied the Lieutenant can
make no return of the Writs.—And then some particular
instructions may be given him to carry himself for the
Sir Nicholas Pedley.] 'Tis not for your service to appoint a Committee. 'Tis a thing not merely of discourse, but must be made out by search, and the Long
Robe may better serve you by particularly informing
themselves about these Writs.
Sir Thomas Lee.] You make the Long Robe to be a
particular Committee, and to report their opinion tomorrow morning. If it be left general, 'tis every man's
work, and no man's work, and so nothing done.
Sir Thomas Meres.] They may consider, at five o'clock,
what they are to go upon, and then to their studies to
report to you to-morrow their opinions, and meet again
at seven o'clock.
Mr Mallet.] Moved for Sir Harbottle Grimstone to be
Sir Harbottle Grimstone.] Desires Mallet, then, in his
stead, to officiate for him in Chancery. (merrily)
Sir Thomas Littleton.] Moves to have some persons
sent to the Lord Keeper, to know upon what grounds
he issued out these Writs.
Mr Garroway.] There will be nothing of reflection
or dishonour, to the Lord Keeper, in sending to him.
You have done things of this nature. Possibly this may
have been done with some irregularity, and none but the
Lord Keeper can inform you of it.
Mr Secretary Williamson.] Would not go out of the
way, unless he needs must. This Message is unusual.
Mr Secretary Coventry.] If the Lords Journal may be
commanded not to be shown, and you cannot have an
account of this Writ there, they may command the
Lord Keeper, being their Member, not to declare any
Sir Thomas Meres.] 'Tis intended to send to him as
Lord Keeper—For all Lord Keepers are not Members
of that House, and no doubt the Lord Keeper has an
Order to justify him. Would have the Vote conditional,
"in case the Journals will not be shown, then to go to the
Sir Edward Baynton.] The Lords Journal is never
desired to be shown, but on the last occasions. The Minutes were not entered, and therefore you could not see
it. You may leave it in the power of the Committee, to
go to the Lord Keeper, or not.
Sir Thomas Lee.] Though in truth he was not denied
sight of the Journal, yet it was excused, because it would
not be ready by the Lords sitting. When the whole
matter appears, you may send a supersedeas to these
Wednesday, June 9.
Sir Thomas Clarges reports the Search of the Lords Journal, and Clerk of the Crown's Office, for Writs of Habeas
Corpus. There was a Writ of Habeas Corpus in Queen Elizabeth's
and King Jame's time. But none granted but in case of Privilege, expressing the several names of the Peers, in whose cases
they were. Some are returnable coram rege in parliamento; some
coram superiore domo. There are Warrants from the Speaker in
the case of Shirley and Turner, sent out to Sir ——Carew, all
returnable in præsenti parliamento. Many ancient books of returns
were not in the Clerk of the Crown's Office.
Upon consideration whereof, the Committee made these Votes,
which the House agreed to.
Resolved, 1. That no Commoner [of England,] committed
by Order or Warrant of the House of Commons, for Breach of
Privilege, or Contempt of that House, ought, without Order of
that House, to be, by any Writ of Habeas Corpus, or other authority whatsoever, made to appear, and answer, and do, and
receive a determination in the House of Peers, during that Session of Parliament, wherein such person was so committed.
2. That the Order of the House of Peers, for the issuing out
of Writs of Habeas Corpus, concerning Serjeant Pemberton, &c.
is insufficient and illegal; for that it is general, and expresses no
particular cause of Privilege; and commands the [King's] Great
Seal to be put to Writs not returnable before the [said] House of
3. That the Lord Keeper be acquainted with these resolutions; to the end [that] the said Writs of Habeas Corpus may
be superseded, as contrary to Law, and the Brivileges of this
4. That a Message be sent to the Lords, to acquaint them, that
Serjeant Pemberton, &c. were committed, by Order and Warrant of this House, for Breach of Privilege, [and contempt of
the authority] of this House.
Resolved, That a Conference be desired with the Lords, upon
the subject-matter of the last Conference.
There was great haste in these Votes, least the GentlemanUsher of the Black Rod should call the House to attend the King
before they could pass.
Colonel Birch.] Would, before we rise, pass some Resolve against this horrid debauchery, committed in Elections of Members, that the people may see you intend to
do something in it.
The Black Rod commanded the attendance of the House of
Commons upon the King in the Lords House, where the King
spoke as follows:
"My Lords and Gentlemen,
" I called this Session for the settlement of Religion and Property, and no endeavour of mine hath any way been wanting to
it. I have interposed no business of my own, and have continued this Session much longer than I intended, for the settlement of the kingdom, and did intend this an Adjournment, for
the preservation of the good and wholesome laws that have had
such a progress already. But the malice of our enemies hath
raised so great differences betwixt the two Houses of Parliament,
that I can find no expedient for the composing of them, but a
Prorogation, which I very unwillingly make use of. I shall
meet you here again in winter, and I hope you will take so great
care of the Public, as not to seek new differences, nor to revive
Then the Lord Keeper, by the King's command, pronounced
the Prorogation, to the 13th of October, 1675.