Friday, May 1.
[A Proviso was offered to the Bill for raising 310,000l. by
an-imposition on Wines, and other Liquors, viz. for fixing a
part of the revenue arising by subsidy of Tonnage and Poundage,
for setting out a fleet every year.]
Sir Thomas Clifford.] Laws are certainly either shackles
to the subject, or diminish the Prerogative: All Laws
we make cut betwixt these two.
Mr Coventry.] Laws are indications of times, as swearing, drinking, or any other vice; and why should a King
that has done more at sea, and loves it better than any
King ever before him, be curbed and restrained in his
revenue? It does not become us—By the same reason we
may offer it to all the rest of his revenue—Some years,
in the late Duke of Buckingham's time, the charge of the
navy was not above 20,000l. a year.
Sir Thomas Littleton.] The Proviso is not a perpetual
one for a temporary Bill.
Sir John Duncombe.] It will disorder the course of the
Exchequer, that no man will know what to do, nor with
what safety to act in the greatest emergencies of State—
The King's officers will not know how to advise him.
Sir Thomas Littleton.] It will be a less distrust to make
it in one Act than in two several ones—There was an
Act intended to appropriate all the several parts of the
King's revenue—This Proviso, being to appropriate one
part, is the most modest that can be.
Sir William Coventry replies,] That Act of Appropriation was when the prospect of all the Crown revenue
was before you—It is no wonder that the Customs should
be anticipated; in the Plague, and the War, there was
little came in, together with the great defalcation of the
chimneys—It was more cheap for the King to remove,
than to stay in a place—That remove, in the Plague,
was of great expence to the King, which made the Customs, with others of his revenues, be anticipated—So
that for a good while hence, you cannot have the
fruits of them—At present his case is so, that all his revenue is anticipated—This Proviso will break the King's
whole credit—The King cannot long subsist without
your aid; therefore, by this Proviso, make him not less
able to subsist than he is already.
Sir Robert Howard.] Believes his Majesty's revenue
managed with all prudence; and would not have a Prince
confined in his methods—He is always charmed with the
decency of any thing—But when was the King's revenue
sunk? It was in the midst of our giving money—Had
the Prizes been made selony to embezzle them; had they
been made public money, who durst have converted them
to private uses?—The neglect of this has been of so fatal
consequence, that it must alarm us for the future—No
immodesty in applying such a sum out of the Customs
as may be for this use—If the King's condition be so
wanting, as not to afford 20,000l. per ann. must the
seas be unguarded?—Leave not this way; secure this
first, and consider other ways for the future.
Mr Milward.] Has his Majesty rescued any malefactor
from you?—Have not your proceedings been with his
Majesty's confidence in us?—Shall we so distrust him by
such a proceeding as this Proviso?
Mr Seymour.] The Proviso appropriates part of the
Customs to the guard of the sea, which ought to be the
whole by the Statute of the 13th of Henry III.—The
thing, it seems, is fit, but not to be done by us—It is
not foreign, but natural to this Bill; and because it was
formerly omitted, not one penny of the Customs has
been applied to the late war; and is it not natural that
what has been done may be done again?
Colonel Birch.] Believes it may be true that the Customs have not been applied to the use, but finds the
2,000,743l. spent, in the four first years the King came
in, in ships and stores, the King then overgoing himself
600,000l. in his customs; by thus doing, when you
see what part has not been employed, and what anticipations, then it is proper to consider what has been misapplied.
Sir Walter Yonge.] Possibly the sum (Birch) mentions was not employed for the use it was pretended; for
he does not know at that time above twelve ships abroad
—Does not believe the Kingdom can be put to such exigency as is mentioned.
Sir Thomas Meres.] The Laws about the Customs are
to the effect of this Proviso—When we meet again,
money, he fears, will be called for still, upon the pretence
of the Navy; by passing this Proviso, we provide for
that—Where anticipations are upon good considerations,
he would have them allowed; but affirms, that he that
gives his negative to this, gives his affirmative for the
raising of 300,000l. more.
[The Proviso passed in the Negative, 134 to 93.]
Saturday, May 2.
[Debate on a Petition from the East India Company, in regard to Skinner
(fn. 1) .]
Mr Vaughan.] Moves to consider the business of Skinner, concerning the East India Company, wherein the
Lords have passed a judgment of 5000l. to be raised upon
that Company—Several Members of this House being
of that Company, it will extend to their persons, which
being done in Parliament-time, is a high breach of Privilege, and deserves your serious consideration—The
persons concerned showed him their Petition, for advice
in it; and the Sollicitor, with other persons, have been
examined in the House of Lords concerning Mr Vaughan,
who being a Member of Parliament, he remits it also to
the consideration of the House—The business of the
Members is about the nature of Copartners.
Sir William Thompson.] Affirmed the order to be served
upon Sir Samuel Barnardiston, Governor of the Company.
The Speaker.] Complaint was made of an Original
Plea brought into the House of Lords; the Lords did
over-rule the Plea—It is under Consideration.
Sir Thomas Meres.] Queries the Privilege of any Member that is of any of the companies of London; if they
have Privilege by virtue of him, all the companies of
London would have a Parliament-man of them.
Sir Robert Atkins.] The stock of the Company is in
distinct shares; they have not common stock; so that
what levies are made upon the Company, must be upon
every one of them personally—Particular and private
persons must, at their peril, take notice of a Member of
Parliament, which Skinner ought to have done.
Mr Vaughan.] Moves that it may be voted a breach
of Privilege in Skinner—He has heard that in general it
was said at the Lords Bar, that Members of the House
of Commons were concerned in this Company, but not
that they were named.
Mr Prynne.] Though they were named at the
Lords Bar, if they were not told they were Members,
no breach of Privilege is allowed—The case of the East
India Company is in autre droit, and no Privilege.
Mr Vaughan.] This argument of (Prynne's) is not the
case; for this charge must fall upon the persons, your
Members, particular estates.
Serjeant Maynard.] In corporation concernments, no
personal Privilege; the body of that is invisible, and so
no personal Privilege—Corporations are generally either
agencies or patiencies, and where no subjecta materia is
to work upon, there is no Privilege, quatenus a Member
of a Corporation—That is no matter of record, a Member
of Parliament is—The Judges opinion to the Lords was,
that Skinner is relievable by the Courts in Westminster for
his ship and goods, but the taking away his house and
island in the kingdom of Jambee
(fn. 2) , and dispossessing him
of them, is not—The ship and goods belonging to his
person, and so relievable at Law in the Courts at Westminster—But the Lords have passed judgment upon the
Mr Vaughan.] When the right moves with the person, Privilege attends it; but where right is local, as in
France, &c. it is otherwise—Jurisdiction does ever follow dominion—Two absolute dominions cannot be of
of the same thing—The King of England cannot have
a plenary jurisdiction where the King of France has one
—No Court under the King can have jurisdiction where
the King has none himself, and all Causes are cognizable
there—Jurisdiction of the person of his subject the King
can have in a foreign place, and no otherwise. 13 R. II.
Sir Thomas Coggan's Case—Coram rege & concilio anciently, not coram baronibus—The peace of the King of
England cannot be broken in a foreign country where he
has no power; but if the King's Governor be there, there
is a jurisdiction—Upon the whole matter, the Lords having taken cognizance of a case originally, and given damages, it being a personal case, and in an island where the
King hath no jurisdiction (which "of damages" is the
proper business of a jury) is a breach of Privilege, and
liberty of the subject.
Sir John Northcote.] Coggan's case was for forcing the
Abbot of Bridgwater to give a bond—The Lords took
cognizance of the case, but afterwards transmitted it to
Mr Prynne.] Thinks that the Lords have clear jurisdiction in both these cases, and not the Courts of Westminster
—Always at the opening of Parliaments, Petitions were
received by the Lords, and all grievances, both foreign
and at home.
Treason committed beyond sea, till 25 H. VIII. was
not tryable at Westminster—Intra quatuor maria is the
kingdom of England only—3 Ed. I. Skipwith, at Wittenberg, killed the King of the Romans, and was outlawed here; but upon complaint that the crime was done
in Germany, the outlawry was reversed—It was a device
in King James's time, the bringing an action in Japan
in Cheapside, and so of other places—A bargain was
made at St Malo's, and an appeal was made to the Lords
about it; but they laid it aside for want of jurisdiction—
The Lords have this jurisdiction, and no Court else—
The Lords, in cases of Meum and Tuum, refer things to
the Common Law—All things were referred to the tryers of Petitions, and so were sent to the several Courts
they belonged to, for remedy; but where no remedy
could be had by the Courts, they were reported to Parliament for remedy—One called the Queen of Bohemia,
Goodwife Palsgrave; the person was fined by the Lords,
and sentenced to ride with his face to the horse's tail. (fn. 3)
Sir Robert Howard.] Damages were never given for
land recovered, but the land itself—It is no argument
that because the Lords have fined in some things, they
may do it in every thing—The Lords may be so raised
in point of their judicature, that at last all causes will
be brought originally, if you suffer this.
Mr Sollicitor Finch.] Let the cause be relievable in any
Court, either at Westminster, or the Court of Admiralty,
but not originally at the Lords Bar; because, at the
other Courts, the cause has all its concoctions, and comes
thither for revision, by writ of error; it can have no
revision from thence, but by a miracle, the legislative
way—The Lords cannot create a power—Durum fuit
quod non habuit remedium, in case of dower, before the
Statute of Westminster, but by legislative way—God forbid there should be any case, but the Lawyers may tell
a remedy for, either in the Courts of Westminster, or legislatively! Believe it, the Lords have no power to give
remedy where the Law gives none, unless the Commons
have a share in that remedy—The House of Lords is,
without doubt, an immemorial Court of Judicature;
but we have settled the Lords in many powers—But if
the King sends it not to them by writ of error, nor we
send it by way of grievance, what will become of the
subject, when the first week must produce the Petition,
the second, Audience, and the third, Judgment?—All
Proceedings, Plea, and Answer, ought to be in Latin
in the House of Lords, and sent down to the Courts at
Westminster for a Jury, and returned thither again for
Judgment—All Judgment is entered thus, Ideo consideratum per Dominum regem; and yet the Plea from them,
and not originally from the King, remains to be done.
If you demand a Conference about their jurisdiction,
they will not do it infallibly, and then, how can you
have remedy that way? But to make our approaches in
the business, does think us much in the right, as the
business is a speculation, and in prospect; but knows
not how to advise to bring it into practice.
Sir Edward Thurland.] 8 Edward I. The Lords are
bound by Magna Charta, as well as any other Courts—
Per sacramentum suum is by Jury, and in these proceedings of the Lords none of that is done—The Lords give
damages; that is expressly against it, and it ought to be
by Jury—The Lords, in some cases, may fine, but here
are damages given—The Jury may be attainted for damages, but from the Lords no appeal or remedy—
Would have some healing way proposed; but yet to assert our Liberties, by declaring that the Lords have no
power in this case originally.
Mr Waller.] Does not know how long the Lords have
had the title of Supreme Court of Justice—We judge
with them—They sent us down a Bill to judge the illegitimacy of Lady Roos's (fn. 4) Children, the last Session—We
judge with them in all legislative Causes, therefore they
are not supreme, unless appeal be made to them as to
Philip waking, and Philip sleeping.
Objection.] Whether a Jurisdiction, or not a Jurisdiction, is the question; for where the Lords have a power
to judge of the principal, they have of the accessary,
so the accessary part of the cause, as the nature of the
affidavits, and place they were taken in, is not enquirable
[A Committee was appointed to consider of the whole matter,
and to bring in the Votes altered in the afternoon.]
[In the Afternoon. The same Debate continued.]
The Speaker.] Nothing can cut a diamond but a diamond—The Judges cannot in Westminster-hall declare
what is an Act, and what is not, or whether the Lords
and Commons assembled, and the King's confirming an
Act of theirs, with the Lords consent, be not a Law—
There are only two Acts of the Convention not yet confirmed; one the Act for the Ministry, and the other
occasionally spoken of in the title of the Bill of Wines
—A Wife cannot be examined in any case against her
Husband, but where it is particularly enacted.
Sir Robert Howard.] Reports from the Committee (appointed in the morning) 1. That the Lords House taking
cognizance of the Petition of Skinner, and over-ruling
the Plea of the Governor and Company, originally, is
not according to the Law of the land in the matter set
forth in the Petition.
2. That the Lords taking cognizance of the island,
and giving damages thereupon, is not warrantable by
the Laws of the land.
3. That Skinner, by commencing and prosecuting suit
in the Lords House, and procuring judgment against the
Company, and the Governor, being a Member of this
House, and several Members of this House being parties concerned therein, is a breach of Privilege.
Sir Robert Howard.] The condition of Privilege of
this House is not taken off by the convenience or inconvenience of the thing; if it were, some body must be
judge over us—How dangerous that is, I leave you to
Mr Waller.] A man is robbed, and sues the Hundred; shall a Parliament-man be exempted from paying
Mr Vaughan.] If a Factor in the Indies had beaten or
killed an hundred there, what is that to a Member here,
and the Governor of that Company?—As if my man
should beat a man in Cornwall, and I must be answerable for him, who am here.
Mr Waller.] The Speaker of the Lords cannot deliver
the Report ore tenus to the Lords; so it is most proper
to deliver it in paper—If it be delivered ill, it is to our
disadvantage, and he cannot possibly deliver it in verbis
—But rather let them have the Votes than nothing—I
would have Asperitatem rei mitigated with Lenitate verborum.
[The two first Votes of the Report were ordered to be delivered, in a Message, at the Lords Bar, with the reasons for enforcing them.]
[These proceedings, in regard to Skinner and the East India
Company, occasioned a remarkable quarrol between the two
Houses; and, in order to reconcile them, the King recommended
to them to strike out all proceedings relating thereto from their
Journals; which was done accordingly: And this is the reason
that this Debate is not mentioned in the printed Journals. But
the proceedings are still legible in the original Journals, whereby it appears that Skinner was this day ordered into custody, and
the Debate adjourned till next morning.]
Sir Thomas Lee.] Moves that Colonel Birch may be
expelled the House, for adding an imposition upon a
sort of people not mentioned in the Act (upon Wines)
after it passed. (fn. 5)
Mr Waller.] Motions of this nature should not be per
saltum, but per gradum—Birch ought first to explain.
[Col. Birch was ordered to carry up the Bill to the Lords.]
[The House sat May 4, 5, 6, 7, 8, 9, and then, according
to his Majesty's pleasure, adjourned to Aug. 11.
Aug. 11.] The House met, and adjourned to Nov. 10.
Nov. 10.] They met, and adjourned to March 1.
March 1.] They met, and were prorogued by his Majesty to
Oct. 19, 1669.
Oct. 19, 1669.] The House met, when the King, in a short
Speech, "desired them to consider his debts, and mentioned an
Union with Scotland, &c." but no Debate is taken notice of, till