Tuesday, May 18.
[An ingrossed Bill from the Lords, for explanation of an Act,
for preventing dangers which may happen from Popish recusants,
was read the second time.]
Mr Secretary Coventry.] The Bill, as it now stands,
seems to be to prevent inconveniences that may arise
from the growth of Popery. As the Test is penned, if
a Master of Arts take it at his commencement, that shall
suffice, and he need not take it again, if made Archbishop of Canterbury thirty years after; and then he may
be a Papist.
Col. Titus.] The greatest inconvenience, in your former law, this Billomits. Chargeable offices may be excused, by not taking the Test. As Sheriffs, the case of
Sir John Read, in Hertfordshire; therefore would have
that taken care for, in the Bill, at the Committee; and
from a small office to a great one, as you have been told.
Sir Edward Dering.] Generally, an explanatory Act
to that Act mentioned, has been wished for in his county. Many able persons have laid down the Commission
of the Peace, for the doubt of this Act, that those that
have once taken it, are obliged to do it no more; but he
thinks that to be no objection. Persons not obliged for
the same office, toties quoties, to take the Test.
The Bill was [ordered to be] committed.
The Answer from the Lords, reported by Sir Richard Temple
[who had carried up the Message in the case of Mr Onslow.]
"The Lords do declare, that it is the undoubted right of the
Lords, in judicature, to receive and determine [in time of Parliament] all Appeals from inferior courts, though a Member of either House be concerned, [that there may be no failure of justice
in the land] and from this [right, and the exercise thereof, their
Lordships] will not depart."
Sir Thomas Lee.] Thinks that the Long Robe are not
better judges in this matter than ourselves, how far you
can agree to their right upon your Members. The
Lords asked your Members, the last Message, for their
Reasons—Would have a Conference sent for to the Lords,
and there would give your Reasons—Would have the
interrogatory assertion of the Lords entered in your book;
but he sees no reason that your Members should be more
drawn to their Court, in time of Privilege, than to other
Courts in Westminster. Moves to have the Vote of the
House read; which was,
"That it is the undoubted right of the House of Commons,
that none of their Members be summoned to attend the House
of Lords during the Sitting, or Privilege, of Parliament."
Sir Richard Temple.] You cannot have any farther
Conference with the Lords in this matter, than you have
had already. As for this of Mr Onslow, " They will not
depart, they tell you, from the right of taking Appeals."
Sees not how they can deny you a Conference generally.
Sir Thomas Clarges.] He sees the Lords have taken no
notice of what you sent them at the Conference; for
their taking Appeals from Chancery, what fruits of Magna Charta, or Freehold, have we, when, by a paper Petition, the matter is brought to the House of Peers to be
Sir Nicholas Carew.] Desires only, for the present, to
assert your privileges, and secure your Members from being called from their attendance here. The cases of Appeals may take up the whole business of a Session, but,
in time, may be rightly understood.
Mr Powle.] Granting that the Lords have this jurisdiction of Appeals, yet they have it not upon your Members. Their attendance is as necessary here, as the Lords
in their House; and they are called from their attendance here, as well as if they were sued in WestminsterHall. Their Answer is very unparliamentary—Proposes, as his opinion, to demand a Conference, on our
privileges, with entering a salvo, "that you do not, by
that Conference, bring your privileges in doubt."
Mr Sacheverell.] Your right of privileges is easily afserted, without the help of the Long Robe, which he
would first assert—Moves, "That the assertion of the
Lords, in their Message, may be voted contrary to the
rights and privileges of this House, from which we will
Sir Thomas Clarges.] The last part of the Lords Message is a vote of the strangest nature he ever observed:
"From which they will not depart." This is fatal to
Monarchy. He knows not where such an assertion may
end. The King is pleased to take our advice, and redress things—Will they assume greater authority than
the King did in the Declaration? This is language like
a high Court of Justice asserting their authority.
Col. Titus.] For things apparent we need no farther
information. You have your privilege given, not to be
drawn from attendance of this House. Why should
there be a failure of justice, as alleged? Acts of Parliament may help it, and petitions to this House. As the
Lords say, so let us, "That it is the undoubted right
also of our Members, that they cannot be called from
their attendance here to any Court whatsoever, from which
they will never recede."
Mr Powle.] Eternity of place is as strong in the House
of Commons, as in the Lords House; though not to our
heirs, yet to our successors. He has heard, that Lords (fn. 1)
have wrote letters, that they are weary of us. It seems,
by these proceedings, they are so. If the Lords must
call us to their Bar, by receiving Appeals against us, we
are under their command—Would assert our rights, as
they have done theirs.
Mr Secretary Coventry.] At that rate of positive assertions we are at, we shall never meet at a free Conference.
Mr Swynfin] 'Tis good that the Lords have Appeals
from Chancery—It would be worse to have them under
the determination of a Chancellor, or in a Judge's breast;
much better under so many Judges in the Lords House
—And farther, they say, "They have such a right,
though a Member of yours be concerned." They imply it over your Members, though not directly express it—
Not expressed in their Answer, plainly; they do not in
terminis deny, though, in the consequence, they involve
Members—He fears you will not have a Conference—
You have sent for Shirley in Custody.—Called to Order by
Sir Thomas Lee.] He applies his argument to Fagg's
case; and your Debate is to the Answer of your Message
Mr Swynfin goes on—If any Court proceeded against
your Member, the way is, not presently to proceed against the party that brought the suit against him, but
against the officers that summon him to appear. Your
Warrant was to bring Shirley before you. The Lords
would know whether you granted such a Warrant, or
no. You have prepared Reasons for Conference, singly,
from their individual power over your privilege, only.
Possibly that Conference may give some farther inlet.
This is a Question, whereof never Debate was before;
he finds and knows nothing of it. It being a new Question, 'tis some inducement for the Lords to hold it
strongly—The practice has been where silently the thing
has passed over. Now there's an universal Appeal, by
frequency of Parliaments; the Lords House becomes a
standing Court over the Chancery, which could not be
when Parliaments were short. As 'tis a new case, so
this case must be determined on the common right
of the House; not to be diverted from attendance, on
any Court, in any cause. A general right—Laws have
provided, that country and kingdom are concerned in
the attendance of the Members, and they are not liable
to any diversion. That being the reason, why not as
good to be diverted to the Courts of Westminster?
Some reasons the Lords must show, why the attendance
of your Member must be in theirs, more than in other
Courts. They cannot be Judges—Never heard of a superior Court in our own privileges—The reason is the
same as in all other Courts. It must come to the remedy
of a law; they having no judgment over you, there can
be "no failure of public justice," but a private Act, in
a particular case, is not to be preferred before the public
justice of the nation. You send a Message, for a Conference about Shirley's proceedings against Fagg, which
they cannot deny you—By way of Answer to their Message, thinks it better to stay till you have an Answer in
that, before you farther proceed as to the general matter.
Sir Henry Ford.] Mei judices et adversarii. Thinks
it would do well, that the Lords judge of our privileges,
and we of theirs—We are afraid that will happen, which
was never done before—By impeachments at the Lords
Bar, you may draw out all their Members—As in Lord
Strafford's case—Abroad you think you have the worst
end of the staff, and would have you well advised in
what you are not able to maintain.
Sir Nich. Pedly.] As to privileges, many Members
that are Country Gentlemen know them better than
those of the long robe. As to this case—One said,
"There's never a precedent"—Then sure 'tis an innovation. The Lords privileges must be grounded on their
jurisdiction, as a Court of Law, but never as a Court
of Equity, which must be either by Act of Parliament,
or long prescription. Causes in Chancery have their
gradation by error, but never by paper-bill. Anciently
the Chancery judged according to Law, having had the
assistance of the Judges. It never judged arbitrarily,
but sent down to the Judges—In course of Law. First
preserve your privileges, and then go on to consider
your Address by Conference.]
Sir John Trevor.] "The Lords deny privileges
to their own Members, why then not to Members of
the House of Commons," is the Lords argument. The
Lords are perpetual, and privilege attends them, and
they are in Parliament for ever—Privilege here is but
accidental. A man has no assurance of himself, or his
son's being here, upon a new call of Parliament. Privilege contra legem is void, the privilege of the Commons is not contra but præter legem. Commons have
had privilege against the King, (with reverence speaking
it) unless an accomptant or an immediate officer of the
King's. Moves for Conference.
Mr Vaughan.] If he sees any thing, these questions are
as dangerous to the Government as may be; your business is barely the case of privilege, and so only you are
to consider, whether any thing can divert your attendance here, when the lives, and liberties of the people
you are to represent, are at stake. By the King's Writ,
your attendance is your right, and 'tis highly penal to
neglect it. 'Tis against common reason at one and the
same time to be in two places, at once, by the King's
Writ. 'Tis against Common Law, when a man is in
public employment abroad, in partibus transmarinis, not
to be sued. He cannot serve abroad, and have his private
fortune ruined at home; there's the same reason for Parliament attendance. These privileges are essential to
you, you are to judge only; when they come under other rules to be judged, they cease to be yours. We
never yet had any questions asked us by the Lords, by
way of message, before. For their argument of "failure of Justice," that may extend, that the Lords
shall make law only. The Lords say, "they will stick
to this privilege"—You may assert your privileges by
Conference, and, if that will not do, he shall hereafter
propose another expedient.
Sir Thomas Clarges.] We think our security good in
the Lords House, it may be, because the judges are
there—The Lords say, "There will be a failure of
Justice if we do not appear." But they cannot imprison
one of our Members, in any case, and then they cannot
execute their judgment—Here will be "a failure of
Mr Waller.] Doubts whether the words, "in criminal matters," will be safe for us to use—If, upon occasion, a great many of our Members, should be sent for
away, under that pretence—Would have the vote, "in
all civil causes only."
Sir Thomas Meres.] Our business is with lands only,
that court dares not meddle with our persons—Would
have the words, "other courts," put out.
Sir Thomas Lee.] In case of impeachments, a Member
may be sent to the Lords bar.
Mr Powle] Answered him—That the Member is first
suspended his attendance here, before you impeach him.
Resolved, That it is the undoubted right of this House, that
none of their Members be summoned to attend the House of
Lords, during the sitting, or privilege, of Parliament.
Sir Thomas Lee.] The Lords have answered, "that
Lord Mohun has done nothing but his duty," that is,
to take away your Warrant from your Messenger; the
Lords have examined the matter, and find it otherwise
than you represent it; but never tell you so—This still
entangles the matter.
Sir Thomas Meres.] Your Serjeants and Deputies are
threatened to be taken into custody by the Lords; we
shall defend our Lobby, he believes. They know we
are angry people, more than we used to have been,
with them. Some of our reasons are poignant,
and he would go through with them, and have our
right, in chace of the main points, without so many
things on foot.
Col. Birch.] 'Tis easier to fall out, than fall in again.
He thinks you have the clearest matter before you that
can be; some reasons you have before you, and would
have you add more. If in any thing you have advantage, 'tis in that Catechistical Message the Lords sent
you. The House goes safe ways in Conferences, and
Messages; bye-ways are to ask questions. If he meddles,
he would be pretty sure in what he does—Proposes farther reasons against to-morrow—When we shall be a
little acquainted, by Conferences, he hopes something
of good may come of it.
Sir Thomas Lee.] What Birch says, was considered at
the Committee, which concluded that might be delivered at a Message, which might be at a Conference.
Sir Thomas Meres.] For matter of fact, betwixt the
Lords and us, we may look into one another's books
—There's some punctilio in the Warrant the Lords
might not know, but must be acquainted with at Conference.
Col. Birch.] The Message from the Lords, is, "to
know whether the House ordered that Warrant, then on
Sir Thomas Meres.] A Warrant is on your books,
but not that Warrant.
[Resolved, That a Conference be desired with the Lords, on
their Answer to our Message, concerning Lord Mohun
(fn. 2) ; at
which Conference the vote, viz. "That the Message from the
Lords about the Speaker's Warrant, is unparliamentary," with
the reasons of it, were delivered.]
Notes taken from the Counsel that pleaded Chester Election, (fn. 3)
between Col. Werden and Mr Williams.
By Patrimony, Purchase, or Service.
||34 H. VIII. Was the first grant of Burgesses of Parliament for the City of Chester, given by that Act, after the manner of other Cities and Counties of England—The returns at all times, when any Debate has happened, from Queen Mary's time to this time, cives urbis the only persons to make the return, and particularly their mysteries and trades—Some-times, Majores et cives.
Cives, is the literal exposition for "All Men"—"Pro se et
communitate prædict." is the return of the 18th of K. James.
The 23 H. VI. recites that of H. V. "resident, in Cities and
Wednesday, May 19.
[An additional Bill to prevent the growth of Popery, was read
the first time.] Heads of it.
"After conviction, a Commission to issue out for the forfeiture, and to vest the forfeiture in several Commissioners, to
value and seize the estates, &c. The Commissioners may have
resort to the Courts where the conviction is made,—to levy the
forfeiture—And they are, at the Summer Assizes, to chuse a
Treasurer for the Money; and, if he runs in arrear, the Commissioners are to answer it—Allowance to the Treasurer, and
Clerks, and Commissioners service, out of the forfeitures; with
which forfeitures they have power to purchase Impropriations,
for the relief of poor Vicars. The Commissioners incorporate.
"Justices have a right to punish Constables, and Church wardens, for neglecting their duty in presenting recusants, and may
reward such as do their duty—The Commissioners may issue
process to the Constables, and Churchwardens; not to be removed, reversed, stopped, or discharged any way—Recusant not
to be double charged, and may appeal—If a Commissioner be
sued, and no damage recovered against him, he shall have double
costs. If the recusant subscribes to his estate, shall be discharged.
Provision against fraudulent Conveyances. Owning and advising
such Conveyances to be maintainance. No convict recusant capable of gift or legacy. Members of both Houses, not taking the
Sacrament, according to the Church of England, disabled from
sitting. Any man discovering another that shall say Mass, to be
[The Bill was ordered to be read a second time.]
The Bill for appropriating the Customs to the use of the Navy
[was read a second time.]
Mr Powle.] Queen Elizabeth farmed the Customs for
40,000l. per Ann. never for 50,000l. King James
farmed them for 160,000l. The great abuses, and diversion of the uses of them, for the Navy, are the Pensions paid out, and the petty Farms. He knows not
any reasons why the public money should be put to
private services, though ever so great. In time, such
Pensions may swallow up the whole revenue. The
charge of the Navy will increase, as long as the King
goes to market upon credit. Another thing is, debts,
and charges must be considered. Men will not venture
much on the thread of a single man's life, though all
the prayers of the nation are for it. The tallies of anticipation, as if money was actually discharged and paid,
a custom newly brought in, and very unduly. The Bill,
he hopes, may be for the safety of the King, and is
sure it will be for the satisfaction of the people.
Mr Sawyer.] In H. VI.'s time, actions were brought
against the Customs, for non-payment of their Farms.
Tallies of anticipation are not so strange—Struck on the
receiver, before the revenue comes in, in a fictitious
payment, done time out of mind.
Mr Waller.] We speak now only of what we have
given to the use of the Navy. It's said, "These anticipations are vile customs, ancient customs." It may
be as ancient as the Common Law.—We made a fund
at Oxford, and many put their money into the Exchequer upon it. This is the difference; that was passed in
the preamble in the statute, and this Bill lays a penalty.
Sir Robert Long was sollicited by some of the Ministers
(not those now) to violate the Exchequer, as has been
done since, but he would not. There is no nation in
the world but has had money devoted to public uses.
The Romans had so—Their ships were burnt by the
Gauls, as ours were by the Dutch. In the castle St Angelo, is devoted money now—Knows not how the Pope
makes bold with it sometimes. When the Oxford Act
passed, you were not told of the King's wanting his
dinner, for this Custom-money, as you are now. 'Tis
strange, that the King should eat up his Navy. Moves
to have the Bill committed,
Which was done accordingly.
Thursday, May 20.
Sir Thomas Lee.] Reports the reasons to be offered at the Conference on the Lords Answer, in the case of Mr Onslow.
1. That by the laws and usage of Parliament, privilege of
Parliament belongs to every Member of the House of Commons, in all cases, except treason, felony, and breach of the
peace, which hath often been declared in Parliament, without
any exceptions of appeal before the Lords.
2. That the reason of that privilege is, that the Members of
the House of Commons, may freely attend the public affairs in
that House, without disturbance, or interruption; which doth
extend as well to Appeals before the House of Peers, as to proceedings in other Courts.
3. That by the constant service and usage of Parliament, no
Member of the House of Commons can attend the House of
Lords, without the especial leave of that House, first obtained;
much less be summoned, or compelled so to do.
4. If the Lords [shall] proceed to hear and determine any
Appeals, where the party neither can, nor ought to attend, such
proceedings would be contrary to the rules of Justice.
5. That the not determining of an Appeal, against a Member
of the House of Commons, is not a failure of Justice, but only
a suspension of proceedings, in a particular case, during the continuance of that Parliament, which is but temporary.
6. That in case it were a failure of Justice, it is not to
be remedied by the House of Lords alone; but it may be by
an Act of Parliament.
Mr Wild.] Would have added to them, "That no
Court has power to summon any part of the legislature." The Lords were a Court of Parliament before
they were a Court of Judicature.
Mr Waller.] Thinks that would be a better argument
at a free Conference, than to be now amongst our Reasons, in the paper for this Conference; and then valeat
quantum valere potest.
Col. Birch.] Would have it by way of reserve at a
Sir Thomas Lee.] The Committee was more employed
to receive Reasons from Gentlemen that offered them,
than to find Reasons.
Mr Vaughan.] Would rather show these Reasons, at
this Conference, than reserve them for a free Conference,
because it may be we shall never have one.
Sir Thomas Lee.] Offers directions for the managers of
this Conference, not to intermeddle with the Lords jurisdiction of Appeals, nor to own a right in them to take
Appeals, but barely this single question, to state Privilege, neither affirming nor allowing Appeals.
Mr Powle.] The Lords Message is so general, as, if
they take Appeals, by this assertion they may draw all
criminal causes before them whatsoever.—An Appeal
may be made to the Lords, and they try over again.
That of Chancery ought well to be considered. By this
unlimited power of taking Appeals from thence, all
estates may be judged there, dismissed in Chancery,
for want of proof, or want of jurisdiction. He is
not willing to have intricate quarrels with the Lords.
In this Conference would have nothing said to corroborate the Lords Jurisdiction, but to let it go over
Sir Richard Temple.] There never was any Appeal
from the Star-Chamber sentence, or the Ecclesiastical
Courts, to the Lords. This vote is as if they would assume Appeals in every Cause, it goes so far. In the
Commission of Sewers, there is no Appeal to the Lords,
nor in the Bill of Conventicles.
Sir John Birkenhead.] Many Appeals are in the Records from the Star-Chamber, Ecclesiastical Courts, and
the Cinque Ports, to the Lords House, from E. I. to
E. IV. From Ecclesiastical Courts, and all Courts where
the party grieved craves leave of the King, to appeal
to the Lords; but Appeals from the Chancery are no
higher than from H. VII.
Sir Nicholas Carew.] When you send up these Reasons, you deliver them with some authority. Would
not now touch upon the right of Appeals in general,
having no direction nor order for it. Moves to have
some Members to prepare for a free Conference of this
[Ordered, That it be referred to the former Committee, to
prepare and bring in a Clause to-morrow morning, on the Debates of the House.]
Friday, May 21.
The Bill of Popery (fn. 4) was read the second time.
Mr Waller.] To swear to Transubstantiation, when
no man knows what it is!—Swearing is like a lump of
gold, the prettiest thing in the world; beat it into leaf,
and you may blow it away—He likes not a swearing
man, nor a swearing nation—Those that swore, took
away the King's Crown, and those that swore not at all,
set it on again. Now you trust the people with oaths,
whom will the people chuse again? It may be, such as
care not for oaths, men of tender consciences, and so
you may fill up the House with such as care not for
oaths, and will keep none. For God's sake, impose
Sir William Coventry.] The Clause, in the Bill, relating
to the Queen's servants, may receive a temperament.—
Those about her already, may continue still. The thing
may be uneasy, and grievous to her else; but, for the
future, would have no English Papists about her. He
believes that most of them are already removed. Though
the King of Spain would have (in the Treaty in Rushworth) both Spanish and English Priests about the In
fanta, yet the King of England refused. He would have
none English, but by his consent—To answer Mr Waller, if we agree in interpreting "multiplying of oaths," they
agree as to the thing—He is not for multiplication of
oaths.—'Tis to no purpose to bring in every new Clause
that has new niceties—Would keep to that of Transubstantiation—They that take it, believe it not to be an
oath.—Is of opinion, that nothing should fetter the Legislators, when they are here—No man would have Papists, Legislators—Would only have it reach this place,
as it keeps those men out, and assures you those to be
right that are here. It gives testimony of the Legislators, that the people may be satisfied with our trust.
He is for the former oath rather than vary upon new
Mr Garroway.] Agrees against multiplying of oaths,
but not repeating oaths—He likes not dubious tests. It
may possibly make the people think of what they never
did before. He differs from Coventry, in the allowance
of the Queen's servants that she had formerly, but he
would direct the Committee, that the Bill should not
give leave for more Portugal servants than are already,
and not to name "Papists," which would give countenance,—but only "Portugal servants."
Sir Nicholas Carew.] There are daily dispensations for
all oaths from Rome, so would still make new oaths,
before these dispensations come over.
Mr Secretary Coventry.] Every man may interpret an
oath how he will, but an oath, by Law, cannot be interpreted, but according to the intention of the Legislator. He that believes no Transubstantiation at all, may
as well believe a Transubstantiation. They that believe
bread and wine may make flesh and blood, may believe it to be turned into flesh and blood.
Mr Powle.] The Papist believes change of substance,
where the accident remains. If it be, as Coventry says,
the difference between the Papists and us will only be,
they believe Transubstantiation, and we believe it not.
Sir Charles Wheeler.] Some good Protestants have lost
some good places, for not declaring Transubstantiation,
according to the late Act. 'Tis necessary that the Bishops
should form this oath. Our Successors else, not knowing our meaning, and not here present, may very well
stumble at this oath.
[The Bill was ordered to be committed.]
The Answer delivered by the Lords, at a Conference,
May 20, [to the Reasons of this House, delivered at a former
Conference. (fn. 5) ]
[Reported by Mr Powle.]
"The Lords have appointed this Conference, upon the subject-matter of the last Conference; and have commanded us to
give these Answers to the Reasons, and other matters, then delivered by the House of Commons."
"To the first Reason,—The Lords conceive, that the most
natural way of being informed, is by way of question; and seeing a paper here, which did reflect upon the privilege of the
Lords House, their Lordships would not proceed upon it, till
they were assured, it was owned by the House of Commons:
but the Lords had no occasion at that time, nor do they [now]
think fit to enter into the Debate of the House of Commons
being, or not being, proper judges in the case concerning the
privileges of a Member of that House; their Lordships necessary
consideration, upon sight of that paper, being only how far the
House of Commons ordering (if that paper were theirs) the apprehension of Dr Shirley, for prosecuting his Appeal before the
Lords, did intrench upon their Lordships both privilege and undoubted right of judicature, in the consequence of it, exempting (fn. 6) all the Members of both Houses from the judicature of
the highest Court in the Kingdom; which would cause a failure
of that supreme Justice, not administrable in any other Court;
and which their Lordships will never admit."
"As to the second Reason, The Lords answer, that they do
not apprchend, how the matter of this Message is any reflection
upon the Speaker of the House of Commons."
"To the third Reason, The Lords cannot imagine how it
can be apprehended, in the least, to reflect upon the House of
Commons, for the House of Peers, (upon a paper produced
to their Lordships) in form of a Warrant of that House, (whereof doubt was made among the Lords, whether any such thing
had been ordered by that House) to enquire of the Commons
whether such Warrant was ordered there, or no; and without
such liberty used by the Lords, it will be very hard for their
Lordships to be so rightly informed, as to preserve a good correspondence between the two Houses, which their Lordships
shall endeavour, or to know when Warrants from that House
are true, or pretended; and it is so ungrounded an apprehension,
that their Lordships intended any reflection, in asking that question, and not taking notice in their Message, of the complaint
of the House of Commons owning that Warrant, that the
Lords had sent their Message, concetning that paper, to the
House of Commons, before the Lords had received the said Commons complaint. But their Lordships have great cause to except against the unjust and strained reflection of that House
upon their Lordships, in asserting that the Question, in the
Lords Message, could not be for information, as we affirm,
but tending to interrupt the mutual correspondence between
the two Houses; which we deny, and had not the least thought
of. The Lords have farther commanded us to say, that they
doubt not, when the House of Commons have received what
we have delivered at this Conference, they will be sensible of
their error in calling our Message, "strange," "unusual," or
"unparliamentary;" though we cannot but take notice, that
their Answer to our Message, "That they would consider of
it," was the first of that kind that we can find to have come
from that House."
Mr Powle.] 'Tis the proper Question, "Whether
these Answers of the Lords to your Reasons are satisfactory, or no," in order to a free Conference. 1. The
Lords tell you, "the most natural way is by Question."
What is expostulated ought to be by Conference, but not
by way of Message. That may be an Answer to the Lords
first Reason—That, for Answer, they tell us something,
by way of protestation, of judging our privileges—The second Reason was a Question, Whether you had done according to the Order of the House, or no? The third
was a reflection upon the House, as if we had done
what we could not do, in extending our jurisdiction, by
incroachment on the Lords, in sending that Warrant.
Mr Vaughan.] When we consider the Answer, let us
consider the Message, "Whether we own the Warrant?"
The Lords say, a Question is the most natural way. 'Tis
so between party and party indeed, but not from a Court.
Mr Cheney.] The Messengers tell you, "The Lords
Spiritual and Temporal, in Parliament assembled, ask
you this Question," as from a Court which cannot be informed but by a Question—There must be some other
way of proceeding in this matter, which must be by Bill.
Sir Robert Carr.] We ought not to take things as
they are represented without doors. Moves that we may
vote, "That the Lords Reasons are not satisfactory;"
and then to draw up Reasons for it.
Sir Thomas Meres.] Here are two points; first, a Message, by way of Question, for which we have had a
Conference; they giving you Answer, let you in for another Conference. They give you no Answer to Shirley and Fagg's case; they have let you into the Conference to answer that—They have had their advantage
in this, so you may take your advantage in the next
Conference, to tell your sentiments of it, as they have
Serjeant Seys.] When the Lords [are] trusted with the
King's conscience, as a Court of Equity, he knows not
the end of it. (Appeals from the Cinque Ports)—"Failure of justice" is a good word—Desires that the 4 H. IV.
may be read. If they make themselves masters of all
causes, by pretence of "failure of justice," all causes
may come into their hands. 4 Hen. IV. "Persons were
summoned before the King and the Lords. If error,
then to proceed as in the times of the King's progenitors." See in these times what they did, as now in
matter of Equity. Now they bring it under judicature
of conscience, which the King has not trusted them with.
Mr Sacheverell.] There is another Statute, 1 Hen. IV.
Chap. 14. "All Appeals, in the realm, to be tried by the
Laws of the King, and his progenitors; and out of the
kingdom, by the Lord Marshal."
Mr Powle.] These Appeals mentioned by Sacheverell,
in that Statute, were not out of Chancery, but for criminal matters only. 21 Rich. II. Appeals against the
Appeals of the Duke of Ireland, the consequence whereof was the deposing of Richard II. They were in case
of High Treason, and criminal matters.
Sir Thomas Lee.] What he speaks to is, the Lords
Answer to your Reasons—The progress will tell you—
The Lords have stated the thing, and made positive assertions. upon it—To the other part, the Lords have returned a dubious Answer; we may call it fallacious.
They have sent but half their vote, and made an entry
in their own books of right. After the Lords received
your Answer, no Question arises upon the place where
Sbirley was arrested. You send a Message "about Lord
Mobun's taking the Warrant." The Lords answer,
"He had done nothing but his duty." Then, the next
day, you received a Message, to know "Whether the
Warrant was of your making." They tell you, at the
Conference, a kind of salvo. In giving you Answer to
Reasons of their interrogating you, they will avoid that
Question, which is the only Question before you. They,
in this thing, have averred the whole matter—If you
grant them free Conference, you must argue the whole
matter—The Lords asserting their right, you must argue
against their jurisdiction.
Sir Charles Harbord.] Would give the Lords such an
Answer as may countermine their mine, and then is for
a free Conference—First enter that in your books.
The Speaker.] You are first to resolve, "whether you
are satisfied with the Lords Reasons." That's your proper Question.
Mr Waller.] Believes the Lords in the wrong, and you
in the right, in all particulars—They say themselves,
"they are the highest Judicature." We cannot keep
up our own right of Judicature without maintaining
theirs. Once the Judges voted "Ship-money to be legal," and the King was in possession of it. The Judges
gave an ill judgment, and all Westminster-Hall was against you; but, by a law, we threw down all that; by
this judicature wherein we have share. The judgment
given in the King's Bench against Holles, Selden, &c.
that Court over-ruled, and here all our right was lost.
We went to the Lords, and they threw down this judgment, by being the highest Court; he would not, therefore, throw down this Court, that has been so useful to us.
Mr Sawyer.] It may be, the Lords, in answer to your
Reasons, have dropped something they cannot defend.
You have appointed a day for Debate; and therefore, by
an opinion, would not anticipate that day. Possibly,
they see their Conference not desensible.
Sir Thomas Lee.] Reasons for a free Conference are
never given. The Lords have almost forgot our Message, in their Answer. Would have the Managers of the
free Conference have some time to think for your better service.
The Speaker] The free Conference is desired to maintain the Reasons you have given already, and you are to
direct Managers to consider of them.
Sir Thomas Meres.] Fears the Message of "subjectmatter unparliamentary," is too large and nice a word.
The Lords resolve, that you shall not deliver them, and
you take this course to do it.
Mr Swynfin.] This has let you into the maintaining
your privileges. 'Tis proper to defer the Debate of
this, to the next meeting, after three or four days recess, the first day after ten of the clock, and to report
[The Question being put, Whether the House be satisfied with
the Reasons delivered by the Lords, at the last Conference, it
passed in the negative.
Resolved, That a free Conference be desired upon the matter
delivered at the last.]
It being moved, "that Sir Thomas Littleton should report the
Address about recall of the French forces," the House was divided thereupon, and being even [94 to 94] the Speaker gave his
casting voice for the Report, which some thought mysterious (fn. 7) .
He reported [accordingly] "We your Majesty's humble, and
loyal subjects, the Commons, assembled in Parliament, do, with
all duty and thankfulness, acknowledge your Majesty's gracious
promise, in answer to part of our former Address, "to use all
effectual means, both to forbid and hinder the going over of any
of your Majesty's subjects to the service of the French King;"
and we humbly crave leave farther to represent to your Majesty,
that, since the peace made with the United Netherlands, notwithstanding the declaration of your royal pleasure, and all en
deavours used to the contrary, great and considerable numbers
of your subjects (as well heretofore, as since our late application)
have, and daily do transport themselves, out of several parts of
your Majesty's kingdom, and dominions, for the service of that
King, as recruits to the troops and regiments remaining there,
at the conclusion of the said peace, receiving encouragement so
to do (as we have reason to apprehend) by the continuance of a
standing body of your Majesty's subjects in that service; whereby your Majesty's honour and authority have been disregarded,
great reputation given, and success obtained by that assistance,
in the behalf of the said King; and, if longer permitted, may
tend to the discountenance and discouragement of those many
Protestants, and other Confederates, now engaged in their common defence, against him, and to the hazard of Flanders; which
we conceive to be contrary to the [true and] undoubted interest
of your Majesty, and these [your] kingdoms, and like to prove
of fatal consequence. And, therefore, we do presume again to
address ourselves to your Majesty, and humbly pray, that your
Majesty would be pleased to recall your subjects that are in the
service of the French King."
The House then adjourned for the Whitsun holy-days, to