DIE Mercurii, 11 die Decembris.
Domini tam Spirituales quam Temporales præsentes fuerunt:
Epus. Litch. et Cov.
Sir Orlando Bridgman, Miles et Bar. Ds. Custos Magni Sigilli.
Johannes Ds. Robertes, Custos Privati Sigilli.
Robertus Comes Lyndsey, Magnus Camerarius Angliæ.
Edwardus Comes Manchester, Camerarius Hospitii.
Vicecomes Say et Seale.
|Ds. Arlington, One of the Principal Secretaries of State.
Ds. Berkley de Berkley.
Ds. Arundell de Warder.
Ds. Howard de Charlt.
Ds. Howard de Esc.
Ds. Gerard de Brand.
Ds. Berkeley de Strat.
Ds. Arundell de Trerice.
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.
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
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
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
"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. *) 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
"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
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
"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
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.