Tuesday, June 1.
The Lawyers before mentioned were brought to the Bar.
The Speaker told them, That they were summoned
to give an account to the House of their appearing, as Counsel, at the Lords Bar, in the prosecution of a suit against
a Member of the House of Commons, to the breach of his
Privilege, thereby betraying the liberties of this House.
To this effect the Speaker delivered himself to each of the
Counsel brought to the Bar, singly. The first was
Serjeant Pemberton] Who said, he was not conscious to himself that he had betrayed the liberties of this House, nor that he
was accessary to the betraying [the rights of] any of the Commons
of England; and gave a short narrative. That he was retained
in an Appeal at the Lords Bar, and seeing Mr Dalmahoy's name,
a Member of this House, in the Appeal, he refused to be retained. The parties concerned brought an Order of the Lords
for him to be a Counsel in that Appeal. He received no see, nor
was retained against Mr Dalmahoy. Then again came another
Order from the Lords, to be in that cause, at his peril for refusing.
So that being in this manner required to appear, he thought it
his duty, though with an unwilling mind, to obey this Order.
Mr Dalmahoy was not unwilling to have the cause heard,
being for his advantage as much as any body's. The Counsel for the Appellees said, "Mr Dalmahoy was not concerned in
the Appeal, and that the Appeal might go on without him."
It was managed as Lady Bowyer's and Lady Cranbourn's cause.
He was not apprehensive of any breach of Privilege upon your
Member, and hopes you will not judge it so.
The Speaker asked him, If he had no knowledge of
the Order of the House, that no Appeal should be brought
against a Member at the Lords Bar?
Serjeant Pemberton said, He had no knowledge of any such Order; but one told him so in the Lords Lobby, but he did not
apprehend it a breach of Privilege; and looks upon it that he is
bound in duty to obey, when commanded by a superior Court;
and, on refusal, such persons, in his condition, apprehend that
penalties may fall upon them.
The next Counsel brought to the Bar was Sir John Churchill,
to whom the Speaker delivered himself as before.
Sir John Churchill.] He can say little in the business. He
was Counsel for Sir Nicholas Crispe, in the Chancery, and was
desired to be in the Lords House also. As for contempt of your
Order, he never contemned any; for he knows no Order that
forbid him to be of Counsel in this cause to this time. His
affairs are great, and he enquires not into affairs out of his sphere.
He was told that Mr Dalmahoy had put in an Answer to the
Appeal in the House of Lords; and so, according to below-stairs
proceedings, 'tis a consent pro tanto. It was without his knowledge, that Sir Nicholas Crispe made affidavit, that he was in a
streight for Counsel. The Lords made an Order, that he should
appear at their Bar as Counsel, and he was served with it the
next day to attend that cause, at his peril. Every man loves his
life and liberty. When he saw an Order, he attended. He
saw little of Privilege of Parliament in the case. The Counsel
declared for Lady Bowyer, and such interest—In law and equity
they might most appositely appear.
The Speaker, as before.
Serjeant Peck, at the Bar.] He did not know of any Order of
this House to forbid him being of Counsel in the cause. He has
been many years a Counsel for the parties in Chancery. He
knew not of the two Orders of the Lords House—but the third
was, at his peril, if he appeared not. He was served with a
copy of the Order, but the original was not showed him. Lady
Cranbourn is concerned as well as Mr Dalmahoy. He cannot but
say, there was some discourse about this Order of the House of
Commons; but it being not published, as usual, he thought himself not obliged to take notice of any such Order, till published.
He supposes it a breach of Privilege to do it, if the Order had
been published, as usual. He knows not whether a Member of
this House may wave his Privilege, or not. He hopes he has not
offended the revealed will of this House. The Sollicitor in this
cause came to him, but without brief or see, and was served
with an Order to plead this cause at the Lords Bar.
Mr Porter, at the Bar.] He did not attend at the Lords Bar,
nor ever was in this cause, till assigned by Order from the Lords.
Sir Nicholas Crispe would have retained him before; but he said
he could not attend, and refused his see. Then Crispe brings
the Order of the Lords, and he did attend, and thought it his
duty to do so. He never knew of any Order of this House to
the contrary, and knew not but your Member had waved his
Sir Thomas Lee.] Thinks that these gentlemen ought
to have the thanks of the House, if they have had such
a care of the inherent rights of this House, as they tell
you. They ought to know your Privilege; he is sure
they can know it for their turns. Hopes that wearing a
gown does not privilege a man to do any thing. Pemberton did not tell you, he did not know of your Order.
In the case here now in controversy with the Lords, the
Lords have no more to do but to deny you Conference
—When in a Motion against one of your Members,
Counsel shall be assigned by their Lordships order, 'tis
but denying you Conference—Counsel ordered by the
Lords, and the next immediate danger is to be avoided
by you. The Counsel, it seems, know not your Privileges—Your Member appears in it, and yet they violate
not your Privileges. Would have some slight punishment put upon the Counsel, as to be in custody, and
then deliver them upon their petition.
Sir Thomas Clarges.] Is satisfied that all the Lords have
done, in this matter is, coram non judice, and if the lawyers thus despise you, your work is at an end. If in the
Lords House an Exchequer matter be, the Lord Chief
Baron of the Exchequer gives sentence upon it, because
he has had the hearing of it in his own Court, and the
same is of the Chancery. He knows that no Court can
be thus delegated. 15 E. III. "To determine all
Causes,"—And three years after repealed and made void.
Could that be done, but by Conference? This denying
Conference is destructive to the Law of the land—
Moves for confinement of the Counsel.
Sir Robert Carr.] Would make no steps in this matter, but as surely as he could. Whereas more is alleged
by one of the Lawyers, in his justification, than the rest.
—As for your Privilege, every man is bound to take notice of it. The Counsel have opened how highly criminal Sir Nicholas Crispe is, in the business, and would
take notice of it. Their excuses were very different.
Sir Richard Temple.] Sees not how, as to the Order
of the House, the Counsel could take notice of it, but
as to your persons they must take notice. All their
question and excuse of it is of no value—They are all
alike—The thing is, whether they have not relied upon
the practice below and above, of Members waving their
Privilege. He was constrained to have a suit in an unissuable term, because he knew not your pleasure about
waving Privilege—The parties you ought to make an
example of—Would hear the Long Robe about waving
privilege; in the mean time would send for the Principals, the Lawyers being but the accessaries.
Mr Hampden.] The Counsel, when your Member waved
his Privilege, had Order upon Order, before they appeared; and one Lawyer said, they had a consultation,
whether they should appear or not. Would not have
that pass for doctrine, that every vote about your Privilege should be called "an Order."—They will call it
abroad, a new Privilege. Would have some notice given
of this Vote, as was moved.
Col. Birch.] Would not make any step in this business,
but what should be absolutely necessary. Though Privilege cannot be quitted by your Member, without your
leave for it, yet the standing upon it, always, may make
it a great grievance. The Lawyers could not, and ought
not, to take notice of your Vote, till you had promulgated it some way. He is far from arguing, that every
Lawyer should suffer for pleading against any Member
of yours. The case of Sir——Jones, in the last Convention—the opinion was, he should give Answer to a
Bill in Chancery. He desired to be excused—Privileges
have not formerly been so sacred. Trouble not yourselves
with the retrospect of what these gentlemen have done,
but look forward to what you have to do with the Lords.
Mr Secretary Coventry.] Persons have been punished
for serving subpænas, but never knew a Lawyer punished
for pleading. He hopes you will not use the Lords
more unkindly than you do Westminster-Hall. He hopes
you will not punish a man for not knowing what you
keep secret. The Lords say, "their proceeding is right;"
and you say, "it is not right." Will you put these
men upon deciding the matter? 'Tis hard they should
be punished, for giving an opinion in láw at the Lords
Sir William Coventry.] Would not have you declare,
what your Members may do in waving Privilege. You
may undo some of your Members, should you say he
may not wave it. You will undo many merchants in
their trading, who must do it upon credit, and many
other gentlemens concerns also. Would have them sent
for in custody, to give you an account, whether they
knew the Order or not. It plainly appears they did not
know these Orders, so as to make them criminal. If
they had been served with your Order, it would have
looked as a trepan to defend them from the Lords. They
say, "that they had Reason to apprehend, that your Member waved his Privilege; because, before this Case happened, all men were under the opinion, that Privilege
might be waved; and Mr Dalmahoy, putting in his
Answer, did, ipso facto, wave his Privilege by it:" Because he was your Member, they wholly left him out of
their pleading. Would have their submission, entered
in your books, suffice, and no farther proceedings against
Some ladies were in the gallery, peeping over the gentlemens
shoulders. The Speaker, spying them, called out, "What Borough do those ladies serve for?" To which Sir William Coventry
replied, "They serve for the Speaker's Chamber." Sir Thomas
Littleton said, "The Speaker might mistake them for gentlemen
with fine sleeves, dressed like ladies." Says the Speaker, "I
am sure, I saw petticoats."
Sir Thomas Lee.] One point you may hang upon; the
Counsel say, "They took it for granted, that your Member had waved his Privilege, because he answered the
Appeal brought against him." They know, that, in
other Courts, they will have an Order, and your Member is to subscribe that Order, as done by his consent,
thereby waving his Privilege. It seems the Lords claim
a Right of proceeding, whether your Member wave his
Privilege, or not. This passes in no Court whatsoever,
and hopes it will not pass here.
Sir Thomas Stringer.] These gentlemen of the Long
Robe are charged with a breach of your Order. He
supposes, that is over, your Order having never been
published. As to your Member waving his Privilege;
a Member that has waved his Privilege may take it up
again. If it appears that Mr Dalmahoy, after waving
his Privilege, did take it up again, then the Counsel are
Serjeant Maynard.] No man will question, but a Member may wave his Privilege, else you can make no bargain, nor borrow money; and if a man cannot wave
his Privilege, you may soon wave all your credits.
Though a Man will wave Privilege, yet it is the Privilege of this House. A man is sued, and if a man answers the suit, and a judgment is given, it binds the
party, and cannot be waved. Now, whether, in this
Case, putting in an Answer to the Appeal be waving of
Privilege, he that does it, does, as far as he can, submit to the Court. What would you have these gentlemen of the Long Robe do? "At their perils," (by the
Lords Order) if they plead it not. Can the nation take
notice of your Votes? (There was a time in the Long
Parliament when the Votes were thrown out of the window for notice, the doors being shut.) Your Privilege
is a law, your Vote is none; and now you having done
this much, believes no man will disobey you.
Mr Garroway.] Before you part with your Privilege,
would know it. In Westminster-Hall the Courts are known.
This authority of the Lords is an encroachment, and
your Member is giving up his rights and liberties, by
such a submission. Your essential Privileges cannot be
determined by the Lords House. The Counsel have
undertaken them, and would have them under your Serjeant's custody for a day.
Mr Sawyer.] This is not touching your Member, but the Counsel that pleaded.—It must be for a
breach of your Order, or Privilege, on your Member.
This Vote is no notice, unless the Counsel were served
with it—Hopes you will take care to reap the fruit—
That the Counsel be served with your Order. 'Tis not
not now the Question, whether your Member may wave
his Privilege, but whether he had waved it. If your
Member should replevin, shall no Counsel be heard in
it? Shall the defendant sue, and no Counsel against him?
It depends not upon your Privilege, but your Order
only. Would, to preserve your Privilege, enter the
Counsel's excuse, and serve the Counsel of Sir Nicholas
Crispe with the Order.
Mr Powle.] Will move for your honour, and then
let it fall where you please. It appears that Mr Dalmahoy is a party, and no man doubts it, and these Counsel
have broken into it—You may put them in Custody,
and, upon their submission, release them. It will else be
thought you have no assurance of your Cause. A man
may, at any time, insist upon his Privilege. The Counsel had the matter in consideration, before they pleaded;
and this is no new Privilege you claim, but an old law,
that you cannot depart from—Would have them committed to the Serjeant's custody, and the next hour
he shall be as forward as any man to release them.
Sir William Hickman.] 'Tis a plain case, that the
Counsel considered whether they should obey the Lords,
or give up your Rights and Privileges—Would have
both kept up, but the way of proceeding against the
Counsel he submits to you.
Col. Titus.] Would consider what does excuse the
Counsel, and what does not. They are not to be excused, because they are lawyers; for they who know
best what your Privileges are, know the better that they
offend in breaking them. He is not for punishing them
because the Lords will lay them by the heels, if they
do not plead. If that be made an excuse, the Lords
will threaten them—This is not creating a new Privilege
—Members ought not to be drawn from their attendance here. This is not a new Order, but an old Right—
By not waving Privilege you undo many men, and
hurt your own Members very much by it. If you punish these lawyers, your justice may be called in question,
but in sending them away, without any thing more,
you do not prudently. To satisfy therefore your justice
and prudence too, would have them called in, and reproved.
Mr Swynfin.] The measures he would have you take
are, how far this matter of the lawyers concerns you, as
to the difference between you and the Lords. You could
expect no other account from the Counsel than you have
had—If you could acquit them without prejudice to you,
he would consent to it willingly. He looks not upon the
Case, as, whether Mr Dalmahoy can wave his Privilege, but
whether you will wave yours. He looks upon the
lawyers as Counsel for the Lords against you, more
than the Client, and to be considered as such. They
tell you, though they were not served with the Order,
yet that they had taken notice of the difference between
the Lords and you about Privileges, and know you had
waved none of them. He thinks they had taken notice
of your Vote; for Sir Nicholas Crispe swears, at the
Lords Bar, "That the Counsel could not appear to
plead his Cause, because of a Vote of yours." He must
believe the Oath, if the party be not forsworn—The
Counsel will not say, they appeared voluntarily, but for
fear of the Lords they did. When a Privilege is broken
below, you go not to the Courts, but upon the persons
employed in the suit. The same Case is here. The
Lords say, "they will send them to the Tower," and
they tell you so. If you can and do say nothing to the
Counsel, you do, in fact, give up the point to the
Lords. This is the Case of Sheriffs and Bailiffs—He
honours the Counsel, as learned men, and they stood
out the thing twice—If they knew not your Vote, it
was affected ignorance. He must think, by that Order,
interest and necessity oblige you to punish the Counsel,
and to commit them to the Serjeant.
Mr Sacheverell.] Has great respect for some of the
gentlemen that were at the Bar, but much greater for
the House. This is but barely a resolution of what was
ever your right before. It seems strange that this should not
be a breach of Privilege; but it put a great hardship
on the Counsel, whether they should undergo the Lords
displeasure, or break your Privilege. The Lords have
taken all ways to break it, and, if the Lords find this
successful, they will protect the Counsel that shall come
after these. If you set no mark upon this, the Lords
will call it protection to any for the future. Would therefore have a mark set upon the thing, but he leaves the
severity to you.
The Counsel were ordered into custody of the Serjeant.
[The Question for committing Serjeant Pemberton was carried
154 to 146.
Sir John Fagg, for breaking the Privilege of the House, was
sent to the Tower.]
Sir Thomas Littleton.] Mr Dalmahoy's Case is much
worse than Sir John Fagg's, because you did not prohibit Fagg to proceed, though he acquainted you. In this
Case your Member waves his Privilege, in a Court
that takes it de jure, without acquainting you with it at
Sir Adam Brown.] Mr Dalmahoy could not tell you
then it was depending, when it was not. The Counsel
were for Lady Bowyer and Lady Cranbourne. Had Dalmahoy done otherwise than what he told the Speaker, it
would have appeared that he relinquished the business
wholly. If Lady Bowyer, &c. had good success, he
should have the benefit, and if bad, his share thereof
Mr. Secretary Coventry.] Sir John Fagg acquainted
you with the Appeal; Mr Dalmahoy did not; but Fagg,
before he had your resolution, goes to the Lords Bar.
After he saw your Order, he appears not any more. In
this, under pretence of saving your Privilege, you lose
it—Taking all the manner of the thing, you have no
reason to send Fagg to the Tower.
Sir Thomas Littleton.] When a man is misrepeated,
he may speak again to explain himself. The Question
was not, "Whether putting such an Answer in, by
Fagg, was such a Degree of waving as amounted to a retraction."
Sir Thomas Lee.] He thinks it in no man's power to
wave Privilege to your destruction. The Lords would
not proceed till they had all parties in Court; not an
Order ex parte, but on full hearing—Churchill said, "he
had witnesses to prove that Mr. Dalmahoy gave his confent to the proceedings." That's a great care of your
Privilege to encourage Counsel to plead against them.
You thought no more of Fagg's Case, and the thing
sleeping, he put in his Answer,—but not one step neither in proceeding. Had Dalmahoy served you thus—
He used no endeavours to hinder the proceeding; the
Counsel appear against him, by his consent, and for it
you send them to the Tower. 'Tis strange that now
you should scruple to send your Member thither also.
Sir William Coventry.] He does not remember this
allegation against Sir John Churchill, if it be of any validity, now turned upon your Member—A word in the
Order may be by the error of the Clerk.—Dalmaboy
made a party in the Appeal, and no Counsel appearing
for him—What had passed in the proceedings must be the
ground—before your Order—In fourteen years this will
be the first Member you sent to the Tower. Whatever
is your conveniency, let justice be your foundation. 'Tis
the rule of justice, that a law should be known without
retrospection, for a fact committed—Privilege, he finds,
now has a new temperament. This was never distinguished till this occasion—Now a man knows his landmark.—This is quite contrary to rules of justice. Dalmahoy told you, he was to claim under Lady Bowyer.—
He has perfectly obeyed your Command—You had two
things on foot, "That the Lords had no right of Appeals, and upon no account your Members to be called
to answer."—You have declared, "that no lawyer should
appear against your Member." The gentleman has taken
all possible care— That his Counsel disclaimed his retaining them, and no man declared to appear for him.
Upon the whole matter, it is of dangerous consequence,
to punish by retrospection, and he is perfectly against it.
Sir Richard Temple.] He cannot see much difference
in the case between Dalmahoy and Fagg—It is said, "a
retrospection is dangerous." You must then reverse the
sentence against the lawyers. Does it appear to you that
Dalmahoy let his concern go on in the crowd with the
rest? The Counsel took it that he waved his Privilege—
Judgment went by permission, if not by avowed consent, and he thinks Dalmahoy in the same predicament
with Sir John Fagg.
Sir John Ernly.] If this Case of Dalmaboy's did not
essentially differ from Sir John Fagg's, he should be very
partial, if for him—Dalmahoy has done nothing since
your Order to the contrary.
Mr Sacheverell.] Before you put the Question, would
have gentlemen consider what they have done. If Dalmahoy is not concerned, you must retract the Vote
against the Counsel. This argument for Dalmahoy might
have been much stronger for Fagg—than now.
Sir William Coventry.] He that spoke last has almost
imposed speaking upon him. That Vote referring to
the lawyers, they are punished for waving Dalmahoy's
Privilege, and now you will punish Dalmahoy for not
Mr Child.] He takes Dalmahoy to be guilty of the
same fault with Fagg. Nothing can assert your Privilege
more to posterity than this, though he has no unkindness
Serjeant Maynard.] There is great difference, when
Counsel appears against your Member. The 19th of
April the Answer was put in; the 12th of May was the
Hearing. This is a Petition against him; he makes Answer, and you make an Order against it, unless he prosecuted, and prayed hearing—There is a difference between one that appears without leave, and one that asks
leave—In what condition is a man that puts his Answer
into a Court of Judicature?—For when your pleasure
was known, he did nothing; and must abide by his An
Mr Sacheverell.] May 3, the Order was about Fagg;
Dalmahoy put in his Answer after.
The Question for sending Mr Dalmahoy to the Tower passed
in the negative.
Sir William Coventry.] Dalmahoy, having withdrawn,
during your Debate, ought now to be called to his
The Serjeant was sent to bring him in accordingly.
Col. Birch.] If any Member has petitioned the Lords,
as is said, he desires he may go to the Tower.
Mr Garroway.] You are now upon Privilege, and
would go on upon all the cases, as to the modus of punishing them.
Sir Nicholas Carew.] Moved for Sir Nicholas Crispe to
be sent for in custody—The same reason, as for the
Counsel. There are three of them, Nicholas, Thomas,
and John Crispe.
The Counsel was assigned by the Lords, May 27.
Sir Thomas Lee.] Would not have this case relative to
Dalmahoy, because he is not voted to the Tower; but
"for bringing an Appeal against your Vote, being your
Sir Thomas Littleton.] Would send for them to answer,
but not in custody. Crispe cannot legally take notice of
Sir Charles Harbord.] This is a Cause against six
men, and one of them a parliament-man.—This may obstruct all the justice of England—A dangerous consequence!
Ordered, That Sir Nich. Crispe, [Mr John Crispe and Mr Thomas
Crispe] be summoned to attend this House to-morrow morning.
Sir John Coventry.] You have now punished a Member for appearing at the Lords Bar without your leave—
What will you do with a Member that petitions the
Lords against another Member? Sir William Basset petitions against Mr Nosworthy.
Sir Edward Baynton.]—Not usual, in former times,
to name a Member to avouch a thing.
Col. Strangways.] Where a thing may be had upon
record, you do not usually call for evidence.
Sir Richard Temple.] Sometimes a petition is received,
and not entered. Would have your Member (Basset)
speak, before you give judgment upon him.
[The Committee appointed to inspect the Lords Journals, were
ordered to see what proceedings they find in the petition alleged
to be delivered by Sir William Basset.]
Wednesday, June 2.
Reasons for a Conference in answer to the Lords, (see May
31) as reported by the Committee, and this day agreed to by
"The House of Commons do agree with the Lords, that
Conferences between the two Houses of Parliament, are essential
to parliamentary Proceedings, when they are agreed in the usual
and parliamentary way; but the manner of the Lords agreement
to a Conference, to have been upon Friday the 28th of May
last, at ten of the clock, in the Painted Chamber, with limitation and Proviso, was such, as did necessitate the House of
Commons, to forbear to meet at that Conference; and gave the
first interruption to parliamentary proceedings between the
"For that the Conference, desired by the Commons, was
upon their Privileges, concerned in the Answer of the Lords, [to
a Message of the House of Commons sent to the Lords] the 17th
of May, in the Case of Mr Onslow; to which the Lords did
not agree; but did only agree a Conference concerning their
Privileges in general, without reference to the case of [the said]
Mr Onslow, which was the only subject-matter of the desired
"The limitation in the Lords agreement to the Conference,
with Proviso, "that nothing be offered at the Conference, that
may any way concern the Lords Judicature," is, in effect, a
denial of any Conference at all upon the subject upon which it
was desired; which ought not to be."
"The Judicature, which the Lords claim in Appeals against
a Member of the House of Commons, and the Privilege of that
House, in that case, is so involved, that no Conference can be
upon the latter, without some way touching the former."
"That this manner of agreeing to a Conference, with any
limitation or Proviso, is against the course of proceedings between the two Houses of Parliament, in coming to Conferences;
and doth seem to place a power in the managers of such Conferences, to judge whether such Provisoes be broken, or not; and
accordingly to proceed, or break off the Conference, upon their
"The House of Commons doubt not, but that when the
Lords have considered of what is desired at this Conference,
the good correspondency, which the Lords express they desire to
continue, between the two Houses, (which the Commons are no
less careful to maintain) will induce them to remove the present
interruption of coming to Conferences; and therefore to agree to
the Conference, as it was desired by the House of Commons,
upon the Privileges of their House, concerned in the Lords Answer to the Message of the House of Commons, in the Case of
"That the particular limitation, "that nothing be offered at
the Conference that may any way concern the Judicature of the
Lords," appears unreasonable; for that their Lordships Judicature in Parliament is circumscribed by the laws of the land, as
to their proceedings and judgments, and is, as well as all other
Courts, subjected to Parliament."
These Reasons were soon after delivered at a Conference by Sir
A Message from the Lords, by the Lord Chief Justice North, and
the Lord Chief Baron Turner, viz. "That the Lords desire a
Conference with the House to-morrow, at ten of the clock, [in the
Painted-Chamber] upon matters of high importance, concerning
the Dignity of the King, and the Safety of the Government."
Sir Thomas Lee.] Wonders, if the matters are of so
high importance, that we heard no sooner of them from
The Conference was agreed to.
The Speaker.] Moved to have the Serjeant give an
account of what he had done, in pursuance of the Warrant about taking the Counsel into Custody.
The Serjeant said] He repaired to the Lawyers several houses,
but finding them not there, he found Sir John Churchill at his
chambers; at the same time, about eleven o'clock at night,
came the Usher of the Black Rod, who did discharge all persons
from attaching the Counsel, and said, "he had order to repair
to the Lord Mayor of London, and the Sheriffs, to be assisting
to him." He required Sir John Churchill to be his prisoner, and
that he must appear at eight of the clock, the next morning, before the Lords—This morning, as soon as he could meet with
any Members to advise with, he spoke with Sir Thomas Lee, and
Mr Sacheverell, who advised him, That, notwithstanding what
the Black Rod had done, he should retake Sir John Churchill.
Soon after, Churchill passed by in his coach, and, he serving him
with the Warrant, engaged to come to the House of Commons,
and give an account of what the Lords did—He would not let
him go again into his coach, but took another coach. Churchill
went to the Lords House, and he had two Lords with him, to
whom, he said, he appealed, "Whether he must be a prisoner to
the Black Rod, or appear at the House of Commons." The
Lords had many footmen about them, and they called for the
Black Rod, and rescued Churchill out of his hands.
The Warrant was read, viz. "To take into Custody the
Counsel, &c. to answer Breach of Privilege, &c."
Sir Thomas Lee.] The Serjeant desired, this morning,
to speak with him, and told him, "that the Black Rod
had taken away Sir John Churchill from him." He
asked him, "Had you no-body with you? You ought
to have taken aid." Believes the House will not be satisfied with this answer—'Twas upon his advice that he
went to his coach, and spoke with him; and thinks what
he advised him was for the service of the House.
The Speaker.] He invited them (the Counsel) to
dinner with him, and the Serjeant brought them in Custody. The Serjeant told him, he stayed for the Order
for commitment of them, but could not have it till nine
of the clock at night, neither that Order, nor the other
for Sir John Fagg's commitment; and said, the Clerks
would not make it out; and the Clerks say, the Serjeant would not come for it. He (the Speaker) had no Order till that time—but sent out his Warrant for taking
the Counsel into Custody.
Sir Thomas Lee.] Moves, that the Speaker may have
the Thanks of the House, for his care in the business.
Mr Powle.] Persons present in Court, and not discharged, have sufficient commitment, without an Order
from the Speaker, they being not discharged of their
commitment, and being brought in Custody.
Mr Vaughan.] The Speaker has granted a Warrant,
without Order from the House, which ought not to be.
Sir Thomas Lee.] Thinks that the Speaker has done
the House great service.
Sir Richard Temple.] The persons not being sentenced
at the Bar, the Serjeant is not answerable for them, and
discharge is implied by it.
The Speaker expressing some unwillingness, through modesty,
to have the Thanks of the House, having done nothing but his
duty, the Thanks of the House were Ordered him, for his great
care [of the honour and service of the House] in issuing his
Warrant, for apprehending and committing the Counsel.
Mr Garroway.] The Serjeant has given an account of
Sir John Churchill—Would know what is become of the
other three Counsel. He tells you, he has taken Churchill's parole—Would know what Order he has so to do.
What condition are you in, when he takes upon him to
judge when he must let people go?
The Speaker.] Thinks the Serjeant a Counsel for the
prisoners. He told the Speaker every moment, that the
Order was coming for their commitment, which stopped
him from sending his Warrant sooner.
Sir Robert Carr.] 'Twas strangely contrived between
the Serjeant and the Black Rod, to meet just at a time
at Churchill's chambers—Moves to send the Serjeant to
Col. Sandys.] The Serjeant tells you, he cannot find
any of them but Churchill—He is sure that Pemberton
was with him between eight and nine o'clock at night.
Mr Sawyer.] In other Courts, if an Order be made;
they make no Chamber Order. The Order of Court is
sufficient to take the person by; that Order is a justification to the Officer. When the House does expressly order it, the Speaker's Warrant is not necessary. Had the
Order been taken out, you might have had them in
Col. Birch.] The Order was—"They should be committed by the Speaker's Warrant."
The Order was read. "Ordered, That they, &c. shall be
taken into Custody of the Serjeant of this House."
Sir Thomas Lee.] 'Twas not long since the Question
was here about the Serjeant's taking mens words. He
had servants with him, and yet he attached not Churchill,
who promised him to appear. It may be, 'twas an engagement, before Churchill promised the Serjeant, and he
would keep his engagement. As long as you have such
a Serjeant, you will never keep a prisoner. Remove,
therefore, your Serjeant first, and then think what to do
about the Counsel.
Col. Sandys.] He knows in what times the Serjeant was
bred, and thinks him not fit to serve you any longer.
Sir Winston Churchill.] Churchill was prisoner to your
Serjeant, and told you he was in Custody. Would know
how he and the rest came out of Custody. He was at
Churchill's chambers at five o'clock last night; and, by
all his discourse, he thought himself a prisoner, and had
no other discourse with him but as a prisoner. But if
taken by two authorities, possibly he was more inclined
to obey him that came best provided by authority.
The Speaker.] Told the Serjeant, "that if he permitted
the Counsel to go at large, at supper, he would move
the House to provide him a breakfast."
Sir Robert Howard.] Sometimes we have two Orders
quite contrary to one another, and he has compared the
Order in the Case of Sir John Prettyman. The Serjeant
tells you, "he could not get the Orders;" but had he
presented the Speaker's Warrant, in apprehending Churchill, he might have come to his end; there could be
no excuse.—But your Serjeant having an Appeal depending before the Lords, he would have something
done upon your Serjeant for neglecting his duty, and
upon the Clerks for theirs—Would commit the Serjeant.
Sir Nicholas Carew.] By all this that has been said, the
Serjeant seems to be rather Servant to the Lords than
the Commons. He began the controversy first with the
Lords, in Shirley's commitment, by his officers. If you
take him not presently, he may go to the Lords for protection.
The Serjeant [Sir James Norfolk] was sent to the Tower, for
[betraying his trust, in] not executing his office, in detaining the
Counsel in Custody, and bringing them to the Bar, (having them
committed to him) to answer their breach of Privilege against this
Col. Birch.] Standing up to speak, and the Speaker
standing up likewise, said, One of us must sit down.
Mr Garroway.] One Serjeant, it seems, is gone after
the other, but would not stop the business.
Sir Thomas Lee.] Would not trouble himself with any
man's patent, or title, about this place of Serjeant—
You may inform the King, by some of the Members of
the Council, that your Serjeant has betrayed his trust,
and desire the King to let you have another Serjeant,—
for having neglected the service of this House.
Sir Richard Temple.] He has betrayed you in every
trust you have employed him in. Here was one Colonel
Colepepper, that sat several days here, and was no Member, and the Serjeant let him go at large, when committed to his custody. He corresponds with the Lords;
he has had it from several Lords. If any man has ever
betrayed his trust, the Serjeant has.
Sir Thomas Lee.] Sir Nicholas Stoughton, though ordered in custody, retains Counsel against Mr Onslow,
your Member, and goes about town at large.
Serjeant Seys.] The Serjeant must be impeached, by a
scire facias, to avoid his patent, as a misfezance and
neglecting his office.
The Speaker.] If the Serjeant went with his mace, he
has his authority, as a tipstaff, from the King's Bench—
When persons go out of the presence of the House,
you must send a Warrant to take them into custody.
Mr Garroway.] While you are questioning the Serjeant, he is run away—That is neglect of his trust, and
would take all his Privilege from him, he deriving it
from his attendance upon the House.
The Deputy-Serjeant Harsnett, informed the House, "That he
had been in several places, that Serjeant Norfolk frequents, and
cannot hear of him."
Ordered, That he should have a warrant to find him, and
bring him in Custody.
Ordered, That the King be addressed to appoint another Serjeant at Arms [to attend this House] instead of Sir James Norfolk.
Sir William Coventry.] Privileges for Servants are not
for their own sakes, but to attend their masters. He
thinks that the Serjeant has no more Privilege than you
will allow him, and no Privilege equal to your Members.
Sir Thomas Lee.] Would have the Order so made,
that the Lord-Mayor, the Sheriffs, and all officers, may
assist you to attach the Counsel, in case of escape.
Sir William Lowther.] The officer that now attends
you is but Deputy-Serjeant—Should Norfolk revoke his
deputation, your Warrant cannot be served by him.
Sir William Coventry.] There is no such thing in law,
as a prisoner "upon parole;" 'tis only a word in war.
If the matter of fact be not made out, that all, except
Churchill, were in custody, we shall be put to it, in a
Conference with the Lords.
Sir Winston Churchill.] There is no escape in Sir John
Churchill, but your Serjeant so ordered it, that the Black-Rod did over-power him. He took it for his great
Privilege to appear before the House of Commons, not
doubting but to clear himself, and he took himself to
be in custody.
The Speaker.] When he sent for the Counsel to dinner, he called for them in custody of the Serjeant.
Serjeant Jones.] By taking the Counsel into custody,
he supposes you intend "legal custody."—They were
only summoned to attend at the Bar, and when they
were withdrawn, you ordered them into custody of the
Serjeant at Arms. They cannot be taken into custody
by parole, but by warrant. However they were in
custody, they were not "legally" so, and so 'tis no
Mr Sawyer.] Thinks it "legal custody," because they
were never discharged your Serjeant's Order. Therefore would have them taken into custody according to
the former Order.
Mr Garroway.] Would have the Warrant run—
"By his breach of trust for not detaining them as he
ought to have done."—So charged, no prejudice to the
Sir Winston Churchill.] They were forced—The Serjeant told him, that the Black Rod took Churchill by
one sleeve, [of his gown] and he by another, and that
the Black Rod had men ready to force him. He replied, "The Serjeant should have gone better provided
for such a force."
Sir Thomas Lee.] You will not say that the Lords took
him out of your hands; would rather have the Lords
say it than you, and would have as little trouble upon
you in it as may be.
Serjeant Seys.] The Question will be, below stairs,
who had the prior custody, in an escape by force.
The Speaker.] The Counsel owned themselves in custody of the Serjeant, and went with him to dinner, as
Mr Vaughan.] Your Lobby is part of the House, and
they were not discharged from thence.
Sir Thomas Meres.] The word of your Serjeant, by
your direction, upon any disorder, to take a man, is a
Mr Sawyer.] Before an actual apprehension, there
must be a "custody;" unless your officer returns an
escape, you cannot take notice—Would put a Question,
that you may not differ. If your Order refers to your
former Order, 'tis enough.
Sir Richard Temple.] If the lawyers be protected by
the Lords, they cannot be but as servants, or attendants—There must be an actual custody, at least—The
Serjeant must tell them so. Would recite in the Warrant, "that whereas there was a failure in the execution
of the last Order, in taking them into Custody, you now
grant your Order for doing it."
Mr Garroway.] You have no ground for a new Order,
if you allow a breach of execution in your old Order.
Sir Thomas Meres.] Without making any other recital
of escape, would order the lawyers to be brought tomorrow morning to the Bar.
Col. Birch.] Unless they were in Custody, by your
former Order—Churchill said, "he was in Custody; the
Serjeant had him by one sleeve, and the Black Rod by
the other." You must have a care that he was in your
Sir Edward Baynton.] "They had him by the sleeve."
—Would know which sleeve makes him in Custody.
One for us, and one for the Lords. Churchill said, "he
would be a true prisoner," as the Serjeant tells you. He
has not heard one true word from your officers, since he
came into the House.
Col. Birch.] Let it not be forgotten, that he was not
in Custody before they had him by the sleeve.
Mr Secretary Coventry.] The Counsel have not escaped,
because they went from no-body. If their word be their
Custody, they are in Custody. The Lawyers to be in
two Custodies, will be Popery; the same body to be in
two places at once.
Mr Powle.] If they escaped upon parole, 'tis a negative escape. If there be any doubt of the custody, 'tis
upon Mr Porter, but in the other three 'tis plain. The
Question will be, "Whether Peck, Pemberton, and Churchill, were in the Custody of the Serjeant."
Whereas Serjeant Peck, Serjeant Pemberton, Sir John Churchill,
and Mr Porter, were by virtue of an Order, &c. taken into Custody, and, by the negligence of the Serjeant, have made their
Ordered, That they be brought in Custody to the Bar, tomorrow morning, &c. [by Robert Read, Esq; the Serjeant at
Arms now attending this House.]