Monday, May 31.
Conference from the Lords [reported by Sir John Trevor.]
"The Lords have appointed this Conference, out of that constant desire and resolution they have to continue a fair correspondence between the two Houses, which is [of] the essence of
Parliamentary Proceedings. [For this End] their Lordships
have commanded us to tell you, that they cannot but take notice
of the House of Commons failing to be on Friday last at a Conference, desired by themselves, and appointed by the Lords, at
ten of the clock in the Painted Chamber; that they conceive it
tends to an interruption of [all] Parliamentary Proceedings, and
to evade the Right of the Lords to appoint time and place for a
Ordered, That no man prosecute an Appeal at the Lords Bar,
wherein a Member of this House is concerned.
Sir Francis Drake.] Gives an account of Mr Porter,
and Serjeant Pemberton, that appeared at the Lords Bar
in an Appeal, wherein Mr Dalmahoy was concerned.
Sir Robert Carr.] The Lawyers ought to have notice
of your Vote, and the best way is to summon them here
to know it.
Sir Edward Baynton.] Reports may be false, as well
as true; therefore would enquire farther. Formerly
your Orders were printed and published for all mens
Mr Sacheverell.] Mr Dalmahoy is Defendant. You may
send for the Counsel, and know the matter.
Sir William Coventry.] He had occasion, on Friday,
to speak with a Lord, and was willing to know how
things went in the Lords House. Some others of the
House of Commons had their curiosity about them, as
he had his. The Lords were very cautious in what
they told them—Possibly the Lords may enquire who
were Executors, or Legatees—And your Members not
parties in the Case. May it not be said, in a Court at
Westminster-Hall, some one of your Members were present at such a thing? But what calls not for your Members attendance, is no breach of Privilege. See the thing
charged personally on that man, before you give any
man the trouble of a Summons hither. (Sir Francis Drake
excepting at what he said, as if he had informed the House
wrong)—He said—He did not say it, to put your Member, and an inferior Officer, in the balance.
The Speaker.] Your Orders are published, either in
Westminster Hall, or the Inns of Court, but, as this
Order stands, 'tis not so public as to be taken notice of.
Mr Palmes.] He had the curiosity, as other gentlemen
had, to go to the Lords House. He found no Counsel
there for Mr Dalmahoy, but a Lord asked, "If Mr
Dalmahoy was concerned?" One of the Counsel said,
"Yes." "Then," says a Lord, "let us go on."
Mr Dalmahoy.] The Earl of Darlington made a will,
and gave his daughter a legacy, who is his wife, with other
legacies. A decree in Chancery was made in the Case
—He had no Counsel at the Lords Bar. They were only
for Lady Bowyer and Lady Salisbury.
Mr Hampden.] Supposes the Case is, "Counsel appearing at the Lords Bar, in a Cause wherein your Member is concerned." Consider whether all the Counsel
ought not, at their peril, to know that he is your Member. Every officer is bound to take notice of it. In
Westminster-Hall they are so cautious, in any cause that
concerns your Member, that, by consent, his hand is set
to a Rule of Court. This is worth your taking notice
Sir Thomas Lee.] The common report is, " that
the Lords refused to proceed, till the Counsel declared
they were against Dalmahoy." 'Tis easy for you to enquire into it. Now, for any gentleman to tell you, "that
the Lawyers do not break your Privileges, in appearing
against an express Order of the House," is strange. If
you will let the Lords go away with this, and quit this
part, you must expect the next will be Mr Onslow, and
then Sir John Fagg, and as many more, it may be.
Moves, therefore, that the Counsel may be sent for to
Mr Powle.] If you consider what you have done, you
may the better see what you are to do. Your first vote
was not a new Privilege; you assert your ancient Privilege, and if the Lawyers do not understand it, let them
break it, at their perils; and you are to proceed in this
as in all other matters, where your Privilege is broken.
The Counsel said, they had no instruction from Mr Dalmahoy in the cause; yet, on the other side, the Counsel
declare they are against him. He shall not be of the
severest, but if the Counsel are not sent for in Custody,
it will seem want of courage.
Sir Thomas Meres.] He cannot well understand the
matter of fact. Sometimes Dalmahoy is no party, and
the Lords question, whether any Counsel be against Dalmahoy. He cannot distinguish it; if no-body had named
him, then he is no party. Some of the Lords are angry,
and the Counsel reprehended, "Are not you against Dalmaboy?" The consequence is, Dalmahoy is a party, and
known by the Lords, and the Counsel too, that he had
an interest in the matter. Where your Member has an
interest; they will leave his cause out, and judge the rest
involved with him, to his ruin. If the Counsel know it
not now, pray learn them more wit for the future. The
town and the nation know it; every man rejoices that
you stand up for the peoples right. If any man will
prove Dalmahoy not concerned, he says something.
Sir Henry Ford.] Thinks you will not want courage
to send for the Counsel in custody; but he hears it from
Dalmahoy, "that he retained no Counsel." If he was
no party, no man could appear against him. Persons
say only, they have heard it; and for a Serjeant of great
quality to kneel at your Bar—
Mr Wild.] If the thing be upon record, and on the
Lords books, then Dalmahoy is concerned.
Mr Streete.] The Lords do not so much as name him;
and if it appears that Dalmahoy be no party, the Counsel is not to blame—Would refer it to a Committee.
Mr Secretary Coventry.] No law enjoins a man to give
evidence against himself. Therefore Dalmahoy cannot be
urged to declare—(who sat silent.)
Sir Thomas Littleton.] The Question was, Whether
formerly, before your Order, Dalmahoy did not retain
Counsel? 'Tis a Question against the Counsel, but not
against your Member.
Sir Edmund Jennings.] Dalmahoy has put in his Answer, he tells you, but not since your Order.
Sir Thomas Lee.] By Dalmahoy's silence, in not informing you, it may be gathered, that Counsel has been retained.
Ordered, That Sir John Churchill, Serjeant Pemberton, Serjeant Peck, and Mr Porter, be summoned to attend the House
to morrow morning, at ten of the clock.
Ordered, That the Lords Journal be searched for what business has been depending, relating to Mr Onslow and Mr Dalmahoy.
Sir Thomas Lee.] Moved to have the Vote concerning
the Lawyers posted up at the Inns of Court, and Chancery, as it has been usually done.
The Letter was read to the Boroughs and Counties, to give
notice of their absent Members, and ordered to be sent.
Ordered, That the farther Debate of the Address about the
removal of the Duke of Lauderdale be at ten of the clock.
Sir Kingsmill Lucy.] We have pressed the King so
often for the removal of the Duke of Lauderdale, and,
for Answer, we have only had a civil denial. If there be
a reason to cease this prosecution, would hear it. If he
has expiated his former ill actions, by any thing lately
done, it would much prevail with him, by such a demeanour, to forget what is past. Has no reason to think
his principles are changed, when he calls those that were
against the Declaration, "Deserters of the King." Since
the first Address for his removal, he has had increase of
honour (fn. 1) , and a pension, as if in defiance of us—He
believes him dangerous, and obnoxious to the Government, and as such a one would have him removed.
The Address formerly made was read, with the King's Answer to it.
Sir Joseph Tredenham.] Should the Duke of Lauderdale be banished, on this Address, the late Act of Pardon would be violated, or at least suspended. Should
it be violated, the King may justly say, he has gone by
measures we have given him—Hopes we shall acquiesce
in the King's Answer, as our progenitors have done before us.
Mr Secretary Coventry.] What he looks on now, is the
King's Answer. As for what relates to the Act of the Parliament of Scotland, about the Militia, we cannot go farther on that, without giving offence to that Parliament;
as if we should say, they had not liberty of vote, nor
how to make laws, without the influence of this Lord.
As to the Pardon, as great a consequence the violating of
it is, as any thing can be, relating to the Duke's removal.
Is not discharging him the King's presence, and removing him from all offices, a punishment? When the
King has taken and weighed these Reasons that you have
given, he wonders what will be your Answer to the
King's Answer. Will you say, the Act of Scotland is
no Act, or the Pardon no Pardon? He knows not else
what you can answer.
Lord Cavendish.] Sees not how this can exclude us
from a farther Address. In effect, 'tis a Question, how
we shall ever have interest to remove an officer.
Sir Thomas Lee.] Thinks we are more obliged, by the
King's Answer, to make another Address, than we were
by the first. That the Commons should shake the Act
of Pardon, we are most studiously to clear. The comparison must lie betwixt an oblivion, and pardon of
crimes, for safety, named especially. Will any man tell
you, that the King, having power to pardon, by Grace,
has not power to remove a servant, or his very Privy
Council? This is a matter of plain advice; you thinking so of this Duke, the King may do what he pleases,
But that the Act of Grace should restrain the King from
removing a servant—he wonders at it.
Sir Adam Browne.] The Act of Oblivion is for words,
and, as the King has forgot them, he hopes you do so
Mr Secretary Williamson.] When that matter of Scotland comes before you, he sees not well what you can do
in it. Gentlemen do not think that this will shut out
the Pardon. He takes it, that a man is not only free
from the crime, but from the very reproaches of it.
Should any thing of this nature be enquired into, the
Act of Oblivion, as well as the last Act of Pardon, may
be shaken, it having once passed as well as the other. In
no degree it suits with the justice of this House, and
would go no farther in it.
Mr Vaughan.] Nil dictum quod non sit dictum prius. The
same arguments on another occasion were made, and fully
answered; no Act can be made "that we shall not remember crimes done," but "that there shall be no consequence,
nor effects of it." "Assent and consent," in the Act of
Uniformity, and the Act for purging Corporations, violates the Act of Indemnity as much as any thing—Should
a bed-chamber-man conspire against the King's life, he
would scarce keep him, when so informed; nor a deputylieutenant, that should rob on the highway, would he
continue in his place; though, through his grace, he
may pardon him.
Sir Charles Wheeler.] 'Tis said, "Cannot the King remove his servant?" When you incapacitate Lauderdale
from bearing offices, you take away his birthright to serve
his Prince and country. It seems partial—Would have the
House go on with such an equal way of justice as should
seem impartial. The King has, in some cases, yielded
to our Addresses, and in some not. In an Act of Parliament the King is obliged to no more than a reasonable
Answer, and would proceed no farther in this Address.
Mr Stockdale.] We run upon mistakes; and, he apprehends, the King does the same. The Duke of Lauderdale's charge is, "subverting the Government, and
giving dangerous counsels." That he is an ill man, his
words make out. If a charge were before the Lords,
by Impeachment, this might be a good Answer. There,
'tis likely, the words and actions in Scotland, before the
Indemnity, might acquit him. He now appears to be the
adviser of the Declaration and the French league. These
we show to be the reasons why he is an ill man.
Sir John Ernly.] If the Duke must answer against a
public Act, and we have the benefit of a public Act,
'tis strange. Therefore he moves to rest satisfied with
the King's Answer, and move no farther in it.
Mr Powle.] By what he can observe of the King's
Answer, he finds neither denial, nor grant, of our Address. Not one thing in the Answer to the Duke of
Lauderdale's "procuring the Scotch Militia Act." Therefore that is admitted to be true, with that "of the French
league." The article against Mortimer. 4 Ed. III. 21
Rich. II. Sir Jonathan Bushey's case. "Those under the
same crown to raise armies in one kingdom to invade the
other." A great encouragement for us to have him removed. There is a difference between not having employment under the King, a matter voluntary in the King,
and punishing him. The King, in his Answer, seems to
admit these words of Edicts, spoken in the Council, and
in the King's presence; an Act of as great arrogance as
can be. 28 Hen. VI.—Was impeached for delivering up
Anjou, and Mayne, and, by consequence, losing France.
The Duke of Buckingham was impeached 17 and 18 K. Ja.
though included in the general pardon. He was accused,
though the matter came not to issue. There is a difference between prosecuting a man in the highest extremity of law, and not employing a servant, that has undone his master. 'Tis strange that all our Addresses cannot remove an obnoxious person. He knows not how
the kingdom can be in security, if these Scotch Acts be
continued as a scourge to hang over us. Once the Scots
came in for the King, and another time a scourge to the
kingdom. Would renew the Address.
Mr Dalmahoy.] Desires it may be considered, that the
Duke of Lauderdale has been banished, and imprisoned,
by the late usurped powers, from 1648 till the King's
Restoration; and hopes he deserves not such severity.
Sir Henry Ford.] Brutus, having killed Cæsar, did
ever after upbraid him with the title of Tyrant—Would
not be suspected to condemn, or excuse, the Duke. Believes that the King might have answered categorically,
as well as hypothetically, if he had pleased, to your Address. Had such an opinion, or doctrine, been delivered
in the Council, as is alleged, he cannot think but the
King's Counsel might have remembered it. 'Tis for
your sake the King removes him not; and if not for
yours, for the so many hundreds we represent. He violates not the Pardon. He remembers 1648. What great
clemency has the King exercised in the Act of Indemnity? You know not what satisfaction the Duke has given
the King. He has no personal obligation to the Duke,
but believes him of great parts, and that he does not retain any such principles as are alleged. If he does,
would banish him but two miles off, to Bedlam. Another Lord had many Articles against him, but not one
of them proved (fn. 2) . He knows who undertook to prove
all the Articles, but proved never a one of them. Our
Addresses take no effect, because what things are alleged are not made good.
Mr Powle.] Ford seemed to point at him in his discourse. One Article he undertook to prove against the
Treasurer; and has farther proof of it, if you please to
Sir Francis Drake.] He hears that the Duke of Lauderdale was with the King in his chariot—Were he as high
as Haman himself, he was not great enough to face
this House. He thinks him not a fit companion for the
King, and would have him removed.
Earl of Ancram.] Stands up to speak to the distinction he hears made between the Act of Oblivion, and
Act of Grace. The Church of Rome says, "God pardons sins by Act of Grace; but for Oblivion of Sin, he
purges it." As for what the Duke of Lauderdale is accused,
"of the Scotch Militia Act," none should go out of their
country upon service. But in the latter Act, on occasion
of Rebellion, the Militia may be drawn out, it may be
to Edinburgh, as well as any other place. He is against
that Act of Scotland; and, instead of removing this
Lord, would address the King, that he would find a way
to repeal that Act.
Col. Birch.] Ford said, "If you thank not the King
for his Answer, the people will." Something there is,
besides all this; an Address to the King, with hearty
thanks for the Act of Grace; but would have some difference made between that and an Act of Oblivion. Mark
your last Preamble in the Address for his removal, "as
a man dangerous." Your honour and the King's go together. In the former Session you took notice of it in
your Address, and you were dismissed, and he soon after
not only got English honour, but money too. When
he went into the country, the people he met at church
marked it, and wondered where we were—He means
fairly, would have hearty thanks returned the King for
his gracious pardon, and would distinguish between an
Act of Grace and Oblivion.
Sir Edward Dering.] He can agree with Birch's premises, but not with his conclusion. There is no distinction between an Act of Grace and Oblivion, in Westminster-Hall, and he hopes you will make none here—
He hears not a lawyer speak in it. If an officer, or a
deputy-lieutenant, be pardoned, as is said, for an offence,
by Act of Parliament, surely no farther notice is taken
of it. As to that alleged "of the Act of Corporations,
and the Assent and Consent in the Act of Uniformity,
to be breaches made in the Act of Indemnity;" they
are by Act of Parliament, which only can void another
Sir John Bramstone.] The Duke's being with the King
may be used as an argument both ways, with him—
That he is insolent for being there; and had he fled, he
might have been inferred guilty.
Mr Sawyer.] The Long Robe have been called for
often, in this Debate, to give their opinion in the difference between an Act of Oblivion and Grace. In that
of Oblivion, reproaches should cease, and there is a penalty affixed. Pardon is in the nature of Oblivion; for
if any man be called a felon, if he be pardoned, an action
of late lies upon it. If a man have a particular Pardon,
though such pardons be good physic, yet they are ill
food. We have had instances of words the Duke has
spoken; and once the King, in his Answer, reminds you
of the time, before the pardon—Has this, he thinks, by
way of admiration—"Have you nothing else to say?"
In the case of William De la Pole, Duke of Suffolk, the
Lords differed from the Commons about his accusation,
and an Act was made, that no man should be accused
for promoting it—But his delivery up of towns was a
collateral case. Now the King has put us upon enquiry,
that, unless we show we have reason for a new Address,
we cannot do it. The main Act of the Scotch Militia
was before his employment there; and so the King's
Answer puts you upon the examination, to show how is
was. To say, this Answer of the King's is not satisfactory,
without new matter!—He sees no cause of an Address.
Sir Robert Howard.] Perhaps the House is inflamed
by the Duke of Lauderdale's high carriage—The Duke
of Buckingham has not carried himself at this rate, though
your vote was not so sharp upon him as upon this Duke—
Moves that, in vindication of the honour of the House,
upon your re-address, your apprehensions of the nation
may be expressed—"While such a person is about the
King," and submit it to him.
Mr Bennet.] 'Tis said abroad, that the way to have
preferment, is to be under the displeasure of this House.
'Tis strange that one Scotchman should stand in the way
of the House of Commons, that have given so many
millions of money—Hopes that our Address will be
penned with that modesty, that the King will grant it.
Serjeant Jones.] Perhaps this Duke was willing,
in the Scotch Act, to take what might be had best for the
King. As to the words he should speak, they are very ill;
but he takes them to be pardoned by the Act; and that
Act must be broken, if you proceed farther in this Address. The differences spoken of, between an Act of
Pardon and Oblivion, are rather nominal than real. He
shall say nothing of his own head or authority, but out
of Lord Hobart's Reports. In his pleas, one called the
plaintiff "Thief;" the defendant did confess he stole a
horse, but had his pardon for it. 'Twas judged, that
the plaintiff stood right to all intents and purposes, because the defendant had broke the Act of Oblivion. It
is said, we have addressed twice—Sees no reason why we
should do it a third time. If the King should say, "I
know nothing of cause for removal of the Duke, yet I
do remove him, for those words, and for the Scotch
Act," he knows not how it can consist with your justice—God says, his mercy is over all his works. If
we have not a confidence in the King's mercy, he knows
not whether we can have confidence in any thing.
[A farther Address was ordered to be presented, 136 to 116.]