Debates in 1671
February

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History of Parliament Trust

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Anchitell Grey

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1769

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'Debates in 1671: February', Grey's Debates of the House of Commons: volume 1 (1769), pp. 372-401. URL: http://british-history.ac.uk/report.aspx?compid=40355 Date accessed: 29 July 2014.


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Saturday, February 4.

A Conference with the Lords on their Amendments to the Bill to prevent Maiming, &c. reported by Sir Thomas Meres.

Earl of Manchester.] The Lords desire to keep a fair correspondence with the Commons, and they will agree as far as they can, and show reasons why they disagree to some things in the Bill—The Lords desire a continuance of Parliamentary conferences—They disagree from maiming and wounding, second and third amendment, "of a time;"—The Commons did disagree; they are not satisfied with our reasons for these reasons—The Lords say, that "a certain day after Royal Assent" is a sufficient certainty of notification to the whole Kingdom, and all subjects are to take notice. Referring persons to the Journal, rather adds to the former reasons, though flight be no reason for favour. Precedents for a point are not to be grounded upon practices beyond example. If Royal Assent be not before the 16th of February, the whole time is uncertain—The Lords think it not reasonable to make new, when other Laws are in force—Sufficient to terrify in that time—To "Chance Medley" the Lords agree—The Lords agree to "cutting off member, or joints, with intention, in so doing, to disfigure (fn. 1) ."—In the sixth amendment, that provision is not made in Law upon new offences, especially when made felony of death, viz. not benefit of Clergy—"Knowing of, and privy to the offence," they think not safe; the penalty being so great, would have the persons only reached who are privy to the offence—"Members of Parliament," agree to repeal the Statute of Henry IV.—The Lords are against the whole clause. The offence cannot happen but in Parliament-time, and remedies always at hand—As to the Peers, they conceive they have no need of farther protection than the Law has provided—They are not content to subject themselves to imprisonment or bonds for the good behaviour.

Debate on the Report of the Conference.

Mr Coleman.] Propounds twenty days after the passing the Act, which shall not be counted from the first day of the Session; but if you say that twenty days shall not be from the first day of Session, but from Royal Assent actually given.

Mr Attorney Finch.] The expedient must arise upon amendment of their amendment. The entering of Royal Assent upon the Journal does not operate, for Royal Assent relates to the first day of Session, though they enter it into the Journal—Would have it taken from the day of Royal Assent pronounced.

Sir Tho. Lee.] Is against it—Fears that when we come to conference, we shall have the worst. A day certain was given by their Lordships—"Actually given" must not depend upon an actual averment, whereas records are to be proved by themselves; and will you put it upon a Jury, to judge of the evidence of an actual recording? Shall the attaint of felony be in issue, when this Act commenced? All evidence may be dead, and one of these persons is nobly related, (Obrian) and an honour may descend to him. If they think the time too short, the question is, whether a day certain or no? and all these expedients are but delays. The Lords had as well said, they will not pass the Bill.

Sir Charles Harbord.] It is strange that the Lords should propose a new way, to make an averment prove a record.

Mr Garroway.] Would not agree, but that we may have a day certain. It is impossible to prove a day certain, as the Lords would have it. If the Lords agree not, we need not be afraid of the Bill, for we may impeach—Would disagree, and leave it to the issue of a free conference.

Sir Thomas Meres.] The Lords have, in the Lord Chancellor's case, asserted a day, and the Bill came from them. The Lords have not voted "a disagreement;" they have only voted "not satisfied," and would have us do the same.

Mr Swynfin.] "Actual and passing Royal legal Assent" are the same things. Possibly this may introduce inconveniences for the future—From the day of actual Royal Assent pronounced, will you bring such a doubt into the world, that you may be put to it in all your Acts of Parliament? If in the Money Bill, it might beget an uncertainty in the payments.

Sir Job Ckarlton.] The difference is plain between actual and legal entry. In the terms, all legal judgments will begin with the term, not time of entry.

Mr Vaughan.] No difference betwixt the King's passing Royal Assent; it is the same with Royal Assent; it passes all the legislative power; therefore if you will make a diversity, you must declare to the world what it is Consider that if it must be a Law from the first day of Session, you make it no Law, by the Clause of Assent, till that time—That which is no matter of record, is no certain time. If we do not agree, perhaps we may have quicker ways of righting ourselves.

Sir William Coventry.] We would have it commence the 10th of April, and the Lords not till June; but though you did not like your own day, you would not vote, and so the time uncertain—If you depart from a time certain, you put it upon a matter of right. You will find the Lords more tender to espouse the right of their Journal, than the person of Sir Thomas Sandys.— You see but six of sixteen that stand indicted—Hopes the Lords will yield to us in point of time—Has reason to think the Lords do find that our Reasons press them hard, as also the fitness of rendering themselves against next Session, that they may be capable of being evidence.

Sir Thomas Littleton.] Always thought the 14th of February a short day, having stood so long in the Bill, &c.—Does not see how we should disagree in form, having the substance. At the Conference many standersby will be present, as well as Members—As for Obrian's being a man of honour, nothing can be said an hundred years hence, for afterwards the thing will be so notorious, that there is no manner of uncertainty; and though the thing does not come up to what we would have, yet it is tantamount.

Mr Waller.] If you could find an expedient, much better; the thing of consent of the King is written before it is read; when the Clerk reads it, it is a thing of state, the King commands the writing, and the Clerk reads it, so in effect the writing is a record before past— In the Long Parliament there happened to be a calling up the Northern army; the King put out a Proclamation, which the two Houses consented to, which has the power of an Act pro tempore—Many Laws are passed by commission; the Great Seal is always a record, and the date is known.

The Speaker.] When a Bill is read to the King, the Clerk writes the King's answer; but it is not indorsed 'till it comes to the House of Peers, and then he looks upon his papers, and pronounces, and then indorses it upon the Bill—The final question of "adhering," never' till a free Conference had.

Mr Secretary Trevor.] The indorsement does not depend upon averment, being part of the record.

The Speaker.] Upon the word "nusance," though the Lords did adhere, yet they came off of it; but the expedient must come from you.

Mr Attorney Montagu.] The 16th of February being spent in our Debate, thinks a longer time by circumscription—Some doubt whether an indorsement be part of a Bill.—Filkington's case, Henry VI, a rape, and fled for it. He had a day, which was Pentecost, and the Act did not pass 'till after; and the Lords indorsed, that the feast of Pentecost was from the last past, and so would have it ascertained by an indorsement to the time of a feast.

Sir Robert Howard.] When the time was set, they might have come in—Set what time you will; if eighty days be set, they may be spent as these fourteen days have been.

Sir Thomas Clifford.] If occasion alter, forms of things must alter too. Anciently Sessions of Parliament were eight or ten days, and in Queen Mary's days a month a great while; but that now we are six months, and Royal Assent not to be given till the end, though you go out of the ancient form, yet our constitution now must make it otherwise; but if you take it for granted, that a day may be set, that persons cannot have cognizance of, and it is what you cannot do, because your time of rising is uncertain. Anciently they knew their time of rising as certainly almost as their time of meeting. Let us not deceive ourselves; forms must serve substances; therefore if there are not forms, make them in such cases as these—Says one, How shall Royal Assent be proved? You may as well prove Royal Assent, as the first day of Session—Forty years hence, a person of honour may be concerned—The onus probendi must be upon the person, who must prove he did come in; with the same case you prove the one, you may prove the other, therefore his opinion is to agree with the amendment.

Sir Thomas Clarges.] Doubts whether indorsement be part of the record—"If they hindered not the doing the robbery, nor attached the person after he did it, they are guilty of the robbery." Lord Chief Justice Keeling's opinion in Sir John Coventry's case.

Sir Edward Dering.] Such as maliciously intend the thing, and not such as are involved accidentally—Our ancestors have been careful to make penal Laws temporary and clergical, and with great care of their fellow subjects in case of life.

Sir Thomas Meres.] If a Law be made in Parliament, and the Lords say we have remedy in Parliament-time; but they consider not it will be a Law a post facto—But thinks it better, that the people should have a notice than to make a Law with a retrospect.

Sir Thomas Lee.] Would be fenced against their Lordships, as well as the Lords desire to be fenced against us, by the "good behaviour" mentioned.

[Resolved, That a free Conference be desired, the House not being satisfied with the Lords Reasons.]

Monday, February 6.

A free Conference with the Lords, on their Amendments to the Bill to prevent Maiming, &c. reported by Sir Thomas Meres.

Earl of Anglesea.] The Lords gave a reason why not "14th of February."—If you put a day that an uncertainty will arise, answers all objections.—The Lords cannot help the fate of things in Bills, and you all agree that the parties should have a certain day; though we do agree, it is fit the evidence should be concealed; but if you can answer the certainty of that day, which was not taken notice of by the Lords, because it was the Consequence; and that reason carries them through all other objections—If the day be wholly eluded, by the not passing Royal Assent, and so all falls to the ground. No man knows the King's occasions, when he shall pass Royal Assent, or whether he will pass it or not. To the uncertainty of leaving it in the power of the Clerk. The Commons may admit the Lords amendments, sub mode. —How do the Judges know prorogation, but by certificate from the Journal of the Lords House? If the Commons had proposed that the twenty-five days should commence from Royal Assent, and not the Journal, that might have been regular for the Lords to amend their own amendments; but either House may help the other. It is but ten days now, if we were presently agreed, whereas we intended twenty-five days. In reality, now the remaining time from the beginning of the framing the Bill not above three days. Possibly by a Proviso the thing may be salved—It is in your power to offer a change, and in both Houses power to alter, though both agree in some things.

Lord Lucas (fn. 2) .] As the case now stands, the time is too short, therefore proposes, whether a certain day, or so many days after Royal Assent?

Lord Ashley.] The objection to the 14th of February has no answer; in the other, an obedience required with penalty; in 14th of February no penalty, but an additional mercy by this Act. No necessity of publishing evidence 'till tryal, and in a case of this nature a special commission of Oyer and Terminer might be issued. Some former Acts have, in that case, ordered a Proclamation, and then there is a certain day. Just in the King, but not just in the House of Commons, because the time uncertain—To the worst of men there is always a consideration. Men of fortune may absent themselves, therefore the precedent may be of ill consequence in an uncertain time. The Lords thought this might come up to your time; we gave a certainty, but lengthened the time but a few days—When the Act passed, as certain a time as could be, as the words are placed. Where shall the Judges find the end of a Session in a time limited, but in the Journal?

Mr Swynfin, a Manager.] Whether a certain time? It does not set forth a certain day. Supposing and admitting all your Lordships have said, yet there is no reason to admit the amendment, because the day is not such a certainty as the Act requires. Our day is a certainty in itself; we think it not reasonable to put out that day, and put in another uncertain one—It is our duty to do it, without reference to Royal Assent. If a longer day, those to be tryed might have advantage; when we sent it up, it was time enough, though since, much time has elapsed.

Sir Thomas Lee, a Manager.] The record is from the Clerk that indorses upon the roll the day of Session, which is to be taken, in construction of Law, to be but one day; if it shall appear that Royal Assent be given before, and so entered in your Journal, it may be construed not to be in full Parliament, for reasons abovesaid —Lord Clarendon's Bill passed next day after it came into the Lords House. Common prudence directs us in these things. Your Lordships have offered to acquaint his Majesty with Bills ready for Royal Assent.

Mr Serjeant Maynard, a Manager.] It was said, "we may mend by Proviso." We may indeed qualify, but not contradict. As to the time, it is clear that Royal Assent is the first day, though when it shall commence is in the Act. So you will make two records in the case. Is it matter of fact, or record? Possibly it may be a question, how far your Lordships Journal is record? and it will be a great question, whether that matter shall be tryed by a Jury, or Record? And when one record is contrary to another, how can the Judges certify?

Lord Ashley.] Stumbles at what Maynard says.—6 Henry VIII (fn. 3) . reference to the Journal of the House of Commons by that Statute, and yet that Clerk is but sub clericus. All the nicety is but that the person may have twenty-five days after the passing the Act. Generally there are given two or three months. For Lord Clarendon's case, that might have been a hard thing, for it might have come to a day or two to come (hi ther) from beyond sea, and therefore would not multiply precedents. Our joint business is to punish the offence.

Sir Richard Temple, a Manager.] If the day of Royal Assent had been expressed in the Act, you needed not have mentioned the Journal. The use of this Clause is as well to have mercy upon accessaries, as to manage evidence—The tryals can stay for no persons; and your having made no provision to put off tryal, is an argument for it—Would be showed when any day, not certain, has been given to malefactors.

Earl of Anglesea.] If one day be uncertain as well as another, we cannot impose time upon one another; we argue upon unequal terms and impossibilities, if we take things as they were at the first proposing this business— To what Serjeant Maynard says, for point of the Session, it is clear that that matter of fact must be tryed by matter of record. There is no construction of Law by any such certificate from the Clerk, and for an hundred years last past, no entry upon the record, but what is in the Lords Journal, and the Judges ever send to the Clerk of the Parliament, to certify time as to Acts, and [there is] no other way in use—Says that can never be most certain, and admit of a comparison, when the 16th of February may be passed before the Bill. This is a thing that may be spared, and therefore would not be very strict in new felonies—In Lord Clarendon's Bill there was two months time; if that had taken up six weeks time in preparing, the same necessity would have been—All agree the parties should have a day, but to urge that for the day, which may prove no day— Whether better to have a day that will never be a day, or a day that will be a day? is the question.

Sir William Coventry, a Manager.] But six of sixteen indicted; others may be deterred from coming in for evidence, which this clause might have remedied—Both Houses presume that the King will be ready to hear the petitions of his people. What the King's judgment will be, when offered, we know not; but presume much upon his Majesty's hearing our grievances—Never any of your ancestors have affixed a day of Royal Assent; there is always a trust in both Houses to dispatch, and in both that his Majesty will—In this Bill the day was asserted, which was not the old method, with submission —In Parliament rolls, the time is as certain as the Law; but suppose the Law may remain certain upon the roll, yet the time must be sought in the Journal. An accident may come to the Journal, [it may be] burnt, or a leaf torn out—In Chancery, something last term out (fn. 4) — A Bill was sent up from the Commons; the Bill was not rejected by the King, but that miscarried upon your Lordships table; the same uncertainty may be in this case—Our ancestors have imposed new felonies after the fact; all that this does desire is to bring to justice what your Lordships think an act of horror—Lord Clarendon's Bill was sent down with a day certain, which was short, but with presumption that the King would pass it, as he did, in the middle of the Session—In the Oxford Act, Doleman and Honeywood had as uncertain a day—So long as you delay, so long you give encouragement to the fact.

Lord Ashley.] The Lords thought that both Houses were clearly of a mind—The same thing, as if a Member of the Lords House in equal concern—The Lords intend it not when "a fury," but "a malicious intent." It is not their meaning to make it felony, and your words do so.

Lord Holles (fn. 5) .] If you leave out the words "in spe cial manner," two persons fighting, and by accident one puts out the other's eye, shall this be within the construction of the Act?

Lord Ashley.] The Lords did not offer to exempt themselves from the punishment of assaulting; they would be privileged from being beaten, but not privileged to beat others.

Sir William Coventry.] In case of private Bills, occasion of discharge, or of trust, if no security be provided —Freedom of Debate will weigh, he hopes.

Lord Lucas.] The same reason may be for all Judges and Justices of the Peace, but "in regard of the dignity of the persons of the Commons," that will be no reason, for you must, by the same, make a Law for all Judges and Justices of the Peace—It is too heavy; it takes in Members, and the persons not intended, as upon quarrels and other accounts, and things not relating to Parliament.

Sir Richard Temple.] In the Exchequer roll, the Lords had an Act to enable them to lay higher penalties upon their Members.

Earl of Berkshire.] Debates and controversy none, but to make surer the consequence of the Bill. All the people are to be considered, as well as Parliament-men— Both Houses ought more to be regarded than Justices and such Ministers, who as they discontent, so they please also—Stroude's case; indemnity for the Lords, as well as Commons also—Course in Parliament to punish any irreverent speech—Would retire from this Conference, and in our thoughts think of an expedient.

Lord Ashley.] An office that must be lost, may be of inheritance, a man's whole subsistence; such as the man might be, it may be the Judge would think fit—Good behaviour might breed worse effects in persons of quality, than the thing to be remedied.

Mr Coleman, a Manager.] The Judges are secured by Law; striking in their presence, when sitting, is loss of hand—The Law has made distinction between us and ordinary magistrates already; we are but raising penalties upon former Laws, by increase of ill manners—Chedder's case, Henry IV.

Sir Thomas Gower, a Manager.] Commons have protection for goods, and much more so for their persons— 16 Edward II. Proclamation; none that come to your great Council are to be armed—They forfeit all they can forfeit. And why, if a penalty for wearing a sword, should there not be a punishment for using it badly? It is murder to kill a Constable doing his office, but not another man upon the same occasion.

Earl of Anglesea.] In that Statute the Lords were exempted; they had power to wear arms.

Lord Holles.] Needless, because provided for 11 Hen. VI.

[Feb. 7, omitted.]

Wednesday, February 8.

[On a complaint from several Masters and Owners of Ships, against a Patent under the Great Seal of Ireland, for erecting certain Light-houses in Ireland, reported by Sir Thomas Meres, from the Committee of Grievances.]

Evidence.] The Light-houses rather hinder than help the ships; by reason of the fires upon the hills, where they burn the heath to improve the land, they are often mistaken, not knowing which are the lights.

Rated 1d. per ton inwards, 1d. per ton outwards, for erecting Light-houses by Patent in Ireland. Voted a [common] Grievance by the Committee.

Debate.

Mr Attorney Finch.] Give me leave to interpose on the word "Grievance." If you understand it as against Law, one sense; if useless and inconvenient, another sense. Whatever your votes may be, you do not change the Law; vote what you please, the power of declaring Law is not in your power; the Law is still the same. The Patent in question, is not within any Law; before the Statute 8 Eliz. and at Common Law, the power of Sealights in the Crown, and the King erected them where he thought good. That Statute gives the Trinity-house power to erect sea-marks and beacons—Light-houses are not within the Statute; for 'till 12 James I. light-houses by night, and watch-towers, were not. This Statute is in the affirmative; the seamen to do it at their cost and charge. How could that charge be at the seamens account, the expence being so vast? The Statute impowers the Masters of the Trinity-house to enter into any man's land. No affirmative Statute takes away the Prerogative of the King, unless expressly in words taken away—8 Eliz. not of force in Ireland, and so the vote of no consequence. You are going about to vote, and you think they are binding, without hearing the King's Counsel. You may declare Grievances, but not Law— In this case, no pretence of illegality, but imposition; so you take it for an universal proposition, that the King, by no Patent, can enable to levy any sum, though ever so little, upon any man whatsoever—No corporations but have charters for murage and pontage (fn. 6) , &c. and they shall be questioned, though always practised, and the Law so understood. This is to say, the King cannot do the smallest thing but by Parliament, and all the tolls of England must be confirmed by Parliament; and to vote that no sum, how little soever, shall be levied, in effect is to vote down Law—Sir John Meldrum's Patent, 3 Car. has worn out all the enquiries of Parliament since—Opposes not the zeal of the Committee to enquire into the Grievance, but to involve so many things into that vote, may make the Petition unwelcome, but moves to have the King petitioned to enquire into the usefulness of the thing—Hopes the Parliament will not remove this ornament of the Crown, which it has possessed these six hundred years.

Sir Richard Temple.] You bad damages clear, which you took away; though it was a grievance, yet not illegal. If the King will erect a bridge, the King may grant the toll; if it be unreasonable, the Judges may determine it in Westminster-hall; we cannot call it a grievance—Ireland and Scotland have different Laws— Moves that it may be addressed to the King, that it is a hindrance to trade—Here is no proof that it has been raised upon small boats.

Mr Garroway.] It is the first time that Ireland ever imposed upon England; they are getting our trade from us. If Ireland impose upon English shipping, and they increase in trade upon us, farewell the trade of England—Hopes that upon an address, the King will not suffer them to impose—Beacons were the same things as light-houses now, only things are refined. Perhaps that which is taken for one light, may serve for all the coast— Never questioned whether the King may erect, and come upon land; but the point in question is, Whether raising of money, and where no limitation described—It is a new way without limitation, and puts an invasion upon all our liberties. If once you give away your power of raising money, but by the Commons of England, what use is there of us?—Would do it with all the modesty imaginable, and with the concurrence of the Lords, as in the business of Milford Haven; but why should particular men run away with the advantage?

Mr Love.] The Masters of the Trinity-house reported, that because the persons concerned did desire lights, they did allow of them. One of those whose hands were set to it, did disavow it; and this Allen was the only person they brought; and in that place the light-houses were so low, that they could not see them; so that some said, if they would have our money they may, but would have no lights.

Sir Robert Atkins.] The King, at Common Law, may crect sea-marks generally; and the King may make a reasonable imposition to support them. The King cannot inform himself but from persons knowing; but if it be, upon farther information, found useless, the Patent may be voided, and if the imposition be unreasonable also. Your vote only declares that there were mis-suggestions to the King, and this vote infers no more. You do not by this declare what the Law is; but if they be useless, it will follow that the Patent is illegal: no body can understand it otherwise—The Laws of Ireland may extend to the people of England that come into Ireland, but would have the vote a little more modest—Would not have the word "illegal" nor "grievance" in the vote, but only "they are useless."

Colonel Birch.] Agrees thus far with Atkins, that if he can attain the end, would go as soft a way as he can —He said the certificate seemed to be on the Patentee's side. He that pleaded the Patent, might have brought an hundred certificates, where they are cheap to be had in Ireland; if useful, who is to be the Judge? And if the unreasonable sums, 2d. a ton, 1000 or 12,000 ton, then at least 14 or 1500l. a year the port of Dublin will raise—It is said, it is an undermining of the King's Prerogative; would willingly know what that is? Ever thought that Custom had warranted tolls, and not Prerogative—Did understand it was meant the Prerogative had that power—If 2d. why not 4d.? Understands that here is the only place of giving money—Desires that 'till we are more clearly informed, we may retain the word "grievance."

Sir Thomas Clifford.] Thinks that every one agrees in an address to the King—Does not Birch know that the prescription in corporations is but from the King's Prerogative? Was it not told you, that the Judges do determine what is unreasonable? Does not the Hamburgh Company take so much upon a piece of cloth outwards? If there was no imposition, and the Crown paid it, you would have more complaints—Believes that Bristol and Liverpool, who are against these lights, would set up new lights (reflecting upon Birch.)—It is not for Letters Patent made in England, but in Ireland, and raised in Ireland. Will not you give the King the same liberty in Ireland, as in Barbadoes and the Plantations, who, by their Convocation, may lay so much upon ships? Will any man deny that people are not subject to the Laws of the country where they come? The Parliaments of Ireland have power of redressing this grievance, if thought one—Would have you to have your ends, without calling these Letters Patent illegal—Knows that it is an inconsiderable thing, that of fires, but if 3000l. has been laid out to build these houses, would not have you vote that they are useless; and would go so far as to have his Majesty desired to support them at his charge.

Sir Thomas Lee.] If it be not a grievance, how came it to us? You referred it to the Committee of Grievances —Does not know whether the King can recall his Patent when he pleases, if the Patent will not be voluntarily surrendered. If Ireland stood in the same relation with Scotland, it would alter the case; this being the principal place of Judicature, by appeals, writs of error, as the inferior Courts. It was wont to be the opinion that Ireland cannot repeal our Laws, and that England has the superintendency of Ireland; and knows no reason but, if they will not allow England a superiority, why we should support them at our charge—If it be not a grievance, it is fit that it should be made one.

[Resolved, That the Patent, under the Great Seal of Ireland, for erecting certain Light-houses in Ireland, dated July 16, 1667, is a common grievance.

Resolved, That his Majesty be humbly moved, by such Members of this House as are of his Privy-Council, to call in the said Patent.]

Thursday, February 9.

A free Conference with the Lords on the Amendments to the Bill to prevent Maiming, &c.

Earl of Essex (fn. 7) .] The day appointed for Sandys, &c. 16th of February, draws near, and do agree to a certain day, viz. "10th of March." To the "14th of February," for the persons coming in; the Lords would have that day suitable to the other, viz. two days before that—"Maiming with intention," &c. the Lords still of opinion, that those words are necessary, because it is a new felony without Clergy, and therefore would have it carefully circumscribed—" Noses cut," &c. and it may be not intended, and by accident. If malice comes to a Jury, it may be thought so when casually meeting in the streets.

Sir Thomas Meres, a Manager.] Will not say much for the first point, so near agreed, as to "a certain day of the month;" and as to "the pardon," will acquaint the House of Commons, and supposes they will go as far as they can.

Lord Ashley.] To the second point, "in that special manner;" but if "in any of these special manners," all are to avoid the chance. To fight is no offence of death; and if it happens that an eye be put out, it is death by this clause, without Clergy.

Lord Holles.] Juries are apt to take things at the worst amongst gentlemen.

Lord Lucas.] "Lying in wait" may be by these words when two are to fight, and one stays for the other—The Lords would not have it too narrow, nor too broad.

Mr Swynfin.] These words do perplex the Law; they must be expounded by the fact itself.

Lord Ashley.] Put the case that if in a duel, and one comes first, and a design to do it, is lying in wait; and if such a fact be done, you intend not an accident, but the malice of doing that villainous design; if so, any fighting, sudden, or designed, does fall under this Act. It is intended only to villainously, meanly, and basely designing it.

Sir Thomas Lee.] "Malice, &c." are known words; but if you intend them to be restrictive to all the circumstances, the Law cannot have it's effect—Which way can the party prove the intention?

Lord Ashley.] We may mean the same thing, but the Juries will be upon different issue, and a Juryman must have different thoughts—Not to hurt in general, or to do some of these mischiefs, and not mischief in general.

Sir Richard Temple.] How shall this intention appear to do one of these things, when he declares nothing— It is but want of proof that makes not every killing in duel murder—The party appointed to meet, and so it is no lying in wait—No way to prove it, but by the fact.

Lord Holles.] Voce primœ intentionis cannot be proved —We prevent not the mischief that Law may do innocent men—Better an hundred nocents suffer than one innocent.

Earl of Essex.] Circumstances may be proved as well as the fact. If by accident he cut, it is one thing; but if he use a sword, as a help to cut a nose—There may be malice and lying in wait, and not intention to do the fact.

Mr Coleman.] Thinks malice, &c. idem per idem.

Lord Ashley.] To the 8th amendment, as to "Members," the Lords are not satisfied to keep in the clause; they are equally concerned, and the variations already by Law are not considerable—Would not have it shake freeholds or offices—It may be upon persons of quality, and the Judges may lengthen the time at Sessions, and as they shall see cause to prolong it, if the matter was not enormous; it may happen between persons of quality of both Houses, and create much heat in families.

Earl of Berkshire.] To Coventry's last observation of "armed in Parliament-time"—Peers wear their swords hereditarily, as well as their honour; and so the Knights are Gladio cincti; but to Parliaments sitting under restrictions of arms, all agree Inter arma silent leges.

Ld Lucas.] Many of these penalties are not suitable with their dignities. To leave out the Lords from this clause would be unreasonable, and to leave the Commons also. If maiming provided for, wounding in the clause is too severe. All these penalties commensurate to such an offence—During their service what effect will this have? for stay but till Prorogation, and out of this penalty— We must have new men, as well as new laws, void of passion—The Lords will comply upon any other expedients.

Sir William Coventry.] An injury done in Parliament will have operation upon debates out of Parliament, and this was one reason; and they in that time take themselves to be as Judges upon the Bench.

Lord Lucas.] A danger may be to the person after, as well as in Session, and it may take off freedom of debate.

Sir Rich. Temple.] Chedder's case was but the beating his servant, and yet he had double damage given him by Law.

Lord Ashley.] Persons of quality, for a cut finger, may lose offices by this clause.

Friday, February 10.

The Report was made [as above] from the Conference, when two of the last Proposals were agreed to, and another Conference was desired on the third.

Feb. 11, 13 (fn. 8) , 14, and 15, omitted.

Thursday, February 16.

On the clause for doubly assessing the Members, defaulters in attendance, in the Bill of Subsidies (fn. 9) .

Mr Attorney Finch.] Whoever is so unsortunate as to be in this black list, to be upon record, had better quite be thrown our of the House. What will be the consequence? Suppose they will justify themselves by reasonable cause, will you allow them to deny that which you have voted to be true? If not heard, they are condemned unreasonably. Will the Lords pass it without scanning? And do you let them in to examine what are the weighty affairs of this House, and judge it? You have other ways; you have power to fine them; and that you appoint to pay it, upon penalty of expulsion from the House. You may do it, but would not have such a clause to stand on record, to the disgrace of so many families.

Sir Thomas Lee.] It is no more than an additional penalty to the Statute of 6 II. VIII. for that loss of wages was as notorious as this additional penalty. Mr Attorney has told you, that after Session you have no power to fine them; therefore, this way you take, you have as much judgment in this as the Peers, for they had your assistance by that Statute to fine their own Members, and no man can imagine the Peers thought it our judging them. A gentleman born petitioned to be discharged his employment, but could not obtain it—The inconvenience and burthen is now ten years Parliament, but that must not be a pretence for absence; but when you come to a division of eightscore, rarely three hundred, this shews the world that you take it to be your interest to have a full House; and this will carry on the weighty affairs of the Kingdom, which are not frivolous, and so the Lords can take no exceptions at your preamble.

Sir Thomas Clifford.] Would have the debate kept to one point—He agrees that the honour of the nation is a full House; see whether this way be a proper way. This way will intimate you have no other way. Can you punish them no other way but to go to the Lords for it? Suppose the Commons had a vote in the Lords punishment; you pretend to have the sole power of punishing your Members, and yet you will subject your opinion to the Lords—Every body for a full House—For a rod and terror, set a day a month hence, and if you are not satisfied in their excuse for their absence, send out new writs. In Edward II's time it was so. If you did resolve to punish them, would you do it by this Bill?— Bills of Supply never stick with the Lords, usually not three days time, without conferences. Suppose they petition the Lords, as supreme Judicature of the nation, that " such a mulct is put upon us, we desire you to strike us out, and let the Bill be amended;" surely you would send him to the Tower that should do it. By this you do not let a man have the freedom of helping himself. As long as the other Bills are not passed, you have the rod still, and may punish them by fines, or sending out new writs. If the Lords should see you mix Judicature with Subsidy, what will the Lords say, the preamble mentioning nothing of it?—Here will you punish men that give to the King.

Mr Garroway.] You are told, it agrees not with the preamble of the Bill, but thinks those gentlemen would still stay at home, though the French were landed at Dover; as for turning out of the House, so it be without reproach, thinks it an advantage, and would be out himself—The Lords have only their consent, as in other things—Some are half undone by being here, and should they be exempted, weigh it; Is it a little thing that summons after summons has been given by the Sheriff, and other ways, and they contemn your service?

Sir Richard Temple.] It never came before the Commons, such names as should be fined, as is now intended in ours; but they returned their names to the Exchequer. That money was for Calais—Offers this—Thinks no Member would submit Judicature to the Lords—It is a mistake that the House cannot fine; they have fined persons 200l. and that levied: they have committed a person for printing a scandalous book, and fined him, and he stood committed after the Session, 'till he has recanted his book, and submitted—If you send it to the Lords, they will not pass it blindly, without examining things, to be assured of the fact—Would have you fine them, and the moneys to be distributed in the boroughs or counties they serve for—Would not submit the Judicature of your Members to the Lords.

Sir Thomas Meres.] The great argument is the disadvantage we subject ourselves to—Distinguish the legislative capacity, and we can take nothing ill from the Lords. All our proceedings are to the Legislature. The greatest evil in the world is a thin house; the very noise of this Clause has sent people up.

Sir Robert Howard.] Not above forty of five hundred wanting.

Mr Vaughan.] Whoever is elected, is in as great a trust as a man can be capable of; either by his absence he indulges his own private affairs, or neglects your service; and they deserve a mark not to be chosen for the future: they that absent themselves from your judgment, deserve to have your judgment passed upon them. As to those who say, the Lords are Judges in this case; was not Lord Clarendon judged legislatively? The pecuniary punishment is but gentle, and if not inflicted, you may have yet an emptier House next Session.

Sir Henry Herbert.] Meres said, "he was cold when the House was empty;" he may be too hot when it is full— Doubts whether in punishing these Members, we punish not ourselves—Privileges of Parliament are non so che, as the Italian says, neither described nor circumscribed. Whenever this Clause passes in this Bill, you condemn people unheard; you expose your Privilege to reference and examination of the Lords; and suppose the Lords refuse this Clause?—Offers an expedient—All of a mind to punish nocent persons—From 1621 King James has observed that this power has not been thus exercised—Would have the Members sent for in custody.

Mr Henry Coventry.] Generally people say it is of the sharpest—You have been well offered for a Bill to be brought in—It was your fault in not committing your Members formerly to the Tower, and fining them. What great charge do gentlemen come at here, by being chosen Knights of the Shire? Shall not a gentleman go home, and look after his estate, now lands are thrown up? If your rigour be so great, and your Session so long, you will have none but such as have nothing else to do—Unless you build your House bigger, it will not hold us— Would have enquiry into your Members that have not been here for two or three years together. There are many now that miss you but a week, upon some extraordinary occasion; will you make them equal with those that contemn you?

Mr Waller.] Consider what good you have by it; you have had the best effects already in a full House; some afterwards will be gone, and those fined will not come up. If you go to the Lords, you do in effect acknowledge you cannot punish without the Lords. If we say we cannot punish, do we not invite other Courts to do it? For offences must be punished somewhere. He has seen forty in a morning turned out—Selden said we could not do it without the Lords, and we have had ill consequences of it—Would have them sent for, and called to the Bar, or sent to the Tower, or what we shall judge fit.

Sir Edward Dering.] Would have the blanks filled up, before the question be put, to make it part of the Bill.

Sir John Duncombe.] You will punish six, and excuse two hundred and fifty; what justice is there in this? You will put them upon appeals to the Lords, and they will have justice there—Do you want power to punish, when you can send them to the Tower, and fine them?

[The Clause was rejected, 115 to 98.]

On the Preamble of the Bill of Subsidy.

Sir Robert Howard.] What were the occasions of giving money, but the reasons enumerated in the Lord Keeper's Speech? What a prospect do you give the people, to show them the King's debts contracted, no man knows how, if as Garroway would have it mended? The people cannot have a larger satisfaction than some other cause for this money than barely for paying the debts— Would have "the war" left out, and would have it generally said "for supply of his Majesty's occasions."

Sir Thomas Lee.] What the gentleman concluded with is sufficiently provided for; in the words "defence of the realm," the leagues are included—"Great and present occasions" comprehend alliances. We know not yet how they were contracted—Would not have that, for the accounts we have of the money show we gave more than was contracted in the late war, and plainly now we give more than the debts amount to, as they are stated—Desires that the trust may be left in the King, where we ought to leave it, without intermeddling any thing with war and leagues.

[The Bill, with the Amendments, was ordered to be ingrossed, and two Provisos were ordered to be brought in, one for liberty for persons that desire it to swear to their discharge, the other for taxing privileged places.]

Debate on the last Conference with the Lords [on the Amendments to the Maiming Bill.]

Mr Waller.] Is for adhering to the last clause of "wounding," and "Parliament men." If the people do take it well that my servant shall not be arrested, this can be no unpopular thing for our Members to attend their service in safety.

Sir Thomas Lee.] The Lords are afraid of the penalty, but would not be out of the safety of the clause— The Lords pretend to be a Judicature—In the case of Lord Newburgh, our Member, and the Duke of Richmond, (see p. 288.) they passed an absolute judgment to restore possession, but would not adhere by any means. Precedents, say the Lords, you have a ready remedy by impeachments. Special matter makes special precedents.

[February 17, 18, 20, and 21, omitted.]

Wednesday, February 22.

Debate on the additional Bill of Excise on Beer, Ale, &c. [On the Clauses of private living and brewing within * * * miles of Corporations.]

Mr Seymour.] Lee, who spoke last, moves for the not commitment of the Bill; agrees that the Committee has power to reject or retain it. No charge but is liable to exceptions, and there will be some hardships on one side or another—Says he is loth to subject private houses to searches of officers; but when you made the Bill, you laid it for a foundation that persons would evade the Law, by brewing themselves.—Your Laws are never of any effect, unless you circle them with penalties—He says it is severe to commit upon oath; but when he considers that felony is upon a solitary oath, and Treason was so before the Act [was] made of two witnesses to convict, this is no more unreasonable.

Mr Garroway.] Would have Seymour consider whether this be not a home Excise in effect. In case of felony there is a Jury, and punishment for perjury; but here is no such thing in this clause; [and as] for these new clauses, would have them comprehended so. Of all the world we are not governed by an arbitrary power, but by Law— Would not part with it—Is it a condition for free men to live in, to have their houses broke open in the night?

Sir Thomas Clifford.] No gentleman is concerned in it, nor any man that does brew, or ever has brewed. If you have not brewed before, your house is not disturbed by any officer; if your clause be not so, direct your Committee, and you may make it so.

Sir William Bucknall.] The great objection against the Bill is mistaken, for he thinks it unreasonable that any gentleman should be forced to take it of the Brewer that has brewed before, and so is unconcerned in the clause. If persons that have not brewed pay their money, they are safe; if there be an inconvenience, it is to the Brewer— For brewing in Ireland, and bringing it hither, the duty will be near the whole value of the commodity, 7s. or 8s. the barrel.

Sir Thomas Meres.] If you will reason upon it now, do it as it is now penned, for as it is it will come home to private persons. We must take care of those we represent; every Commoner in his way of living must have his freedom preserved. Suppose the Brewer lays down, or brews ill drink, then every man must be gaged also. Now, suppose they that have brewed remove to another house, and have not brewed there, and the thing be not personal but local, he is subjected to the Brewer; this then begins a general Excise; here is the epitome of it. Whenever it comes to a private gentleman's house, why may not all the Commons expect it? Why must Corporations be thus barbarously used? If one man be but ten yards from a Corporation, he pays not. Now, will the next Parliament say, Why should not all be equally dealt with? and so its head gets in, and in time we shall all be gaged, and a slavery brought upon us—Now for the money, we were at catch that catch can for motions; you must either make it 2s. 6d. as first proposed, or make all your houses tap-houses. In the country it will lessen your Excise, for upon composition it will give more as now it is, than with the addition; you will have nothing by it, and therefore you must have it in general. The Bill will never be 100,000l. The old Excise being raised 60,000l. a year, it is but giving that for three or four years more, and it will do the work better than this Bill. This money is to pay a sort of men that have had your indemnity; if they stay a year longer for their money, you are merciful to them— Could he be secure it would never come to one private house—For by the same reason [it may come to] all, and as this Bill is penned, it will; therefore would lay it aside.

Sir John Dolman.] Is against the commitment of this Bill, if it be with the destruction of our liberties. A Tradesman, a Mercer, buys his beer; a Clothier, that keeps twenty servants, he must buy—Would be secured from the dangerous clauses in the Bill.

Sir William Hickman.] Would have the determination of the House before commitment—Knows in many Corporations no Brewers at all—The people take their drink of the petty Alehouse-keeper, and how shall they be supplied? If you will bound the expence of the commodity, you bound our rents; drink bad, and corn not spent; therefore before the commitment of the Bill, would be secure of the private families.

Sir Robert Howard.] Suppose the Bill of Excise was out, and to begin again, this clause would be monstrous. To the person that will brew, it does indeed bring him a home Excise, but then he may chuse whether he will brew or no. If you lay a charge, it is upon that place where there are Brewers, and so you must secure the revenue where it is to be had. Corporations are the places of payments, and there it must light; taking it for granted that this must be laid in the Corporations, and you must have it, therefore no hardship on the people.

Mr Boscawen.] The error of this Bill is in the first concoction—Howard told you the thing would be so easy, no man would feel it, and these clauses have been insinuated since, partly because of the fear of a LandTax—Takes it for granted the Parliament was willing to make the Laws of Excise (for now it is a body) and inclinable to give satisfaction, which was intended really for all houses—Had rather have Land-Tax than a Tax upon Land—Matters not what you put upon it, provided this clause be left out. The snake's head being got in, its body of a home Excise will follow. We know that the Excise-Farmers get great estates, and are like to be the Nobility and Gentry of England; therefore he would not give greater penalties—If no need of this clause, why should we be so fond of it, if something lay not in the grass?

Sir Richard Temple] It is a strange argument for throwing this Bill aside, that because you have already charged your lands, you will charge them double. No gentleman is against it, but for fear of admitting it into private families, which he is as much against as any man. They that take their drink from the Brewer, do it for their convenience, because cheaper; generally they keep no hospitality in Corporations as the gentlemen do. If this effects not, we shall come home to our Court of Wards and Purveyance again—Would have it committed, that there we may debate, and throw out, and retain what is fit.

Mr Vaughan.] Is against the commitment; dislikes the matter and manner of it. If this way be not new, you must justify it from 1641 to 1651, times to be forgotten—Objects against it for altering the essential parts of Government, in taking up precedents of the worst of times, which he would have you damn to all eternity—The imposition is unnecessary. When we sat first, we heard of great enemies; we are to give an account for the actions we do. Our prodigious liberality is to pay the nation's debt, and if the other Bill will do it, why this also? The gentlemen were the instrumental cause of the King's Restoration, the Corporations did nothing; infected then, and are since. The gentlemen [were] destroyed by the pageantry of Justice, and why should not the gentleman and his house be considered? If the Brewer has the plague, or brews ill drink, why shall the gentleman then not have his liberty?

Sir Thomas Clifford.] Rather than he would have the Commons of England have a jealousy of this clause for introducing home Excise, would leave it out—What have you to trust to but this Bill? Tobacco and sugar may be obstructed in the Plantations. Who will set up Brewhouses for the time this Act must last? No revenue was ever gathered with less trouble to the subject.

[These Clauses were ordered to be omitted.]

On the Clause of brewing in private houses for a neighbour.

Mr Attorney Finch.] By leaving out this clause, one person may, upon this pretence of friendly brewing for his neighbour, be the common Brewer of the whole street.

Sir John Duncombe.] The case is not whether a private man shall brew, but whether he shall lend his vessels? If this goes on, you may lose 40,000l. a year by it— Must we dispute this in the House, when men cannot speak twice to it, and so lose their notions? therefore would have it argued at the Committee.

Sir John Ernly.] If people are left at liberty, then it will evade the duty; but on the other side, if a man's servant lends his master's vessels, his master is responsible therefore would have the clause committed.

Mr Weller.] Never saw any clause fitter for a Committee than this clause; this being complex. If Merchants put commodities into my cellar to steal custom, it is a strange thing that our private houses should be a receptacle for stolen goods.

[Committed for to-morrow upon the debate of the House.]

[February 23, 25, and 27, omitted.]

Tuesday, February 28.

Mr Robert Thomas, a Member, standing at the Bar, being one of those sent for by the Serjeant of the House, to answer his contempt of not appearing at the call of the House, excused his non-attendance by reason of sickness, an ague, and a hurt upon his hand with a rusty knife, which was near a gangrene, and had like to have been cut off. He withdrew, and the Speaker told him, that the House admitted his excuse. Then in his place, being again called in, he humbly thanked the House, and hoped that this course of sending for Members might keep the House full, and wished it had been done sooner. He was ordered to pay his fees to the Serjeant.

Then the Speaker acquainted him with his father, Sir Edward Thomas's Petition against him, and that it was the House's pleasure it should be read. [The Petition was read accordingly.] The substance of it was, "That he had defrauded his father of a great sum of money, by counterfeiting his hand, and refusing to pay his father's annuity, agreed upon between them at the resigning him the estate, and pleading his Privilege when sued."

Mr Thomas, in his place.] This troubles him so much, coming from his father, that he has not spirit enough to say any thing for himself. His father ever loved his ease, and for twenty years has commanded him to manage his estate, which being encumbered in the late wars, he sold some. Since he was born he never gave his father the least disrespect. His father sent him word, that if he came not down, he would leave all. He went down, and put things in the best method he could. His father desired an annuity; he bestowed his daughter (his sister;) and paid 100l. for his father, which he owed upon bond. His servants, and several other persons have made use of his hand, as much as he, by his permission. But the truth of the thing is; a near relation of his has put his father upon this, to get the management of the estate from him. He did not pay his father 50l. because of some concealed debts which he paid for him. He has receipts under his hand for money upon this account, and he mostly paid it before-hand —Submits the business to any course the House will take, and will refer it to any, from the King to the meanest person.

Sir Robert Carr.] Moves it to be referred to Sir Trevor Williams, that he may, in a week's time, try what he can do for composing the business.

Sir John Northcote.] Moves to have it referred to a Committee, and to have it reported.

Sir Thomas Meres.] For so small a matter as 50l. would not have it a public thing.

Sir Thomas Lee.] The Law is the remedy in this case; is not for drawing more of this nature upon you; but if the Member insists upon Privilege, [it will] then [be] proper for you to enquire into.

Mr Boscawen.] Would have it committed, that it may clear your Member's reputation, and in the mean time endeavour among friends to accommodate the business.

[Referred to a Committee.]

Footnotes

1 The only persons that have ever been tryed on this Act (since known by the name of the Coventry Act) were Mr Coke of St. Edmund'sbury, and his accomplice Woodbourn, for maiming and disfiguring Mr Crispe, Coke's brother-in-law, in the reign of George I. Had not the affair been so notorious, it was thought they would not have been condemned, as the letter of the Law seemed rather to favour them; and Coke, who was himself a Lawyer, with great art, but effrontery, pleaded for himself, that his "intention was not (as expressed in the Act) to maim or disfigure," but to kill. See his Tryal.
Mr Crispe lived many years after.
2 The elder brother of that Sir Charies Lucas, who, together with Sir George Lisle, was shot to death, for his gallant defence of Colchester, in 1648.
3 "Commons not to depart from Parliament, without licence from the Speaker entered into the Commons Journal, on penalty of loss of wages."
4 Sic MS.
5 Denzil Lord Holles, was a man of great courage, and of as great pride. He was counted for many years the head of the Presbyterian party. He was faithful and firm to his side, and never changed through the whole course of his life. He engaged in a particular opposition to Cromwell in the time of the war. They hated one another equally. Holles seemed to carry this too far; for he would not allow Cromwell to have been either wise or brave; but often applied Solomon's observation to him, that the battle was not to the strong, nor favour to the man of under standing, but that time and chance happened to all men. He was well versed in the records of Parliament; and argued well, but too vehemently; for he could not bear contradiction. He had the soul of an old stubborn Roman in him. He was a faithful, but a rough friend; and a severe, but fair enemy. He had a true sense of Religion; and was a man of an unblameable course of life, and of a sound judgment, when it was not byassed by passion. He was made a Lord for his merits in bringing about the Restoration. Burnet.
He was second son of the first Earl of Clare, and died in 1679, aged 81.
6 Contributions for repairing walls and bridges.
7 Lord Capel's eldest son. In 1670, he was sent Ambassador to Denmark; in 1672 was made Lord Lieutenant of Ireland, and afterwards First Commissioner of the Treasury; but being a great opposer of Popery, and arbitrary power, that proved his ruin; for delivering a Petition against the Parliament sitting at Oxford, he was accused, amongst others, of a design to assassinate the King and the Duke of York, at Rye-house, and was sent prisoner to the Tower, where, on the 13th of July, 1683, he was found with his throat cut, and not without just suspicion of being murdered.
The present Earl is his great grandson.
8 The Lords, by message this day, signfied their agreement to the Commons Amendments.
9 This was on the second reading of the amendment to the Subsidy Bill.