Tuesday, November 16.
Debate on Sir Edmund Jennings, a Member of the House, being
made High Sheriff of the County of York.
Sir Scroope Howe moved the House in it.
Sir Nicholas Carew.] If a Sheriff of a County plead
privilege, he may obstruct the justice of that whole
County, and no man can have remedy against him.
Would have you vote, that it is a breach of privilege to
be made a Sheriff, &c. thereby withdrawing his attendance from his service here.
Sir Charles Wheeler.] If there be a voluntary acceptance of the office, what breach of privilege is it? You
have never exercised your authority against absent Members. A hundred men of the House are away, and why
you should fall upon one Member, and not all the rest
that are absent, knows no reason.
Mr Waller.] 'Tis something to want half our Knights
of the Shire. About forty years ago there was made
Sheriff a great father of the law, Sir Edward Coke, because he should not help us here. One was made Sheriff (fn. 1) , and sat here, and was fined in the Star-Chamber
for going out of his County—They cannot sit here because they cannot come out of their County. They
may make the Speaker Sheriff.
Sir Robert Carr.] He thinks the King has not broken
your privilege, though possibly 'tis construed so without
doors. Sheriffs have sat in Parliament. If you make
an Address to the King for prevention of it for the future, he gives his consent.
Mr Sacheverell.] The constitution of Sheriff, and how
made so—The law stands expressly, that the Sheriff is to
be nominated, at such a time, in the Exchequer. In the
next place, all actions brought against a Sheriff are personal, for the money he receives, and his executors are
not liable to make account. A Sheriff shall receive all
moneys upon executions, &c. and the Parliament sits,
he pleads his Privilege, and cannot be brought to account. Would therefore address the King to supersede
this writ, &c. and vote this a breach of Privilege.
Mr Wild.] There are three names sent to the King
from the Exchequer, and he sets aside, and chuses, whom
he pleases. Put the case that there should be a new Parliament; a Sheriff in one County may be chosen in another.
But it seems, when it serves one turn, it is one thing, and
then another—Because this Parliament has lasted fifteen
years, shall it continue fifteen more? This Parliament is
made such a precedent, that we are like to have no
more so long again.
Sir William Coventry.] Speaks out of no prejudice to
this Gentleman that is appointed Sheriff for Yorkshire.
Hears it said, "that precedents, if there have been any, not
taken notice of, do not fortify the right;" but, if at any
time, would now make an end of them. Would now address only to claim our right, and no more. 'Tis said,
"the Gentleman is willing to accept the office," and must
we therefore give away our Privilege? Fagg's case, he
thought good in the Lords House, and therefore he appeared there, but you sent him to the Tower for breach
of your Privilege. 'Tis said often here, that we cannot
give away the Privilege of any man; the reason given,
"about executions, &c." convinces him. The King
enters not into a nice disquisition of their being Parliament men—If one be made, fifty may be made, and
so fifty settled in the Country, and he need not tell you
how fifty Votes would have carried things as they are
not now carried. This of pricking Members Sheriffs,
and the letters sent to gentlemen, may tend all to the
same end—So it concerns the Parliament, that you leave
not the gap open, to root up all your Privileges. Whether the Parliament be longer or shorter, there will be
so many absent, Sheriffs—And when the Parliament
set to work about any thing, 'tis quickly done. From
these considerations, moves that you will prevent this
for the future, not barely by a petition, but your
right annexed to it. If you address the King only by
petition, it may possibly not be granted, and so your
right be precluded for ever.
Sir Thomas Lee.] He agrees with Sir John Hanmer,
that 'tis below the honour of the House to fall on one
man. The sending Fagg to the Tower was not falling
on one man. The Privilege of the whole House was
concerned in it. To argue from the custom of pricking Sheriffs, which is but a respect to the King — He
pretends not to be knowing in the law, but has
heard that a pocket Sheriff is traversable, and he believes
the law will be found so. If one may be dispensed with
to be out of the County, possibly another man may not.
Would therefore desire a supersedeas of this writ—This
once stopped, it will appear for the future in this, as in
any other case, and put the Question.
Mr Sawyer.] 'Tis strange, at this time of the day,
to declare this a breach of Privilege; it has been practised in all times. The ancient choice of Sheriffs was at
the Coroner's court, but 'tis now settled by Statute, and
the Exchequer returns three, and the King pricks one,
—Now to say the King has broken your Privileges, after so many precedents!—In Sir Edward Coke's case, it
was never thought a breach of Privilege—The House
ordered his attendance, and his attendance is upon the
Kingdom here, which supersedes the service of the
County, and is an excuse in law for not residing in the
County, till you declared it otherwise. One was
fined (fn. 2) in the Star-Chamber, for sitting here when Sheriff—There is no other true ground of exception, but
that you cannot have his service here. The Sheriff's office, if of great trust, is not a Justice's of the Peace
also, and a Deputy-Lieutenant, an office of trust, in the
same degree? Must all your Members be turned off
that are in such offices? Though they are bound to attend their offices, yet they are bound to attend the
Kingdom in the first place. If you go on the beneficial ground of the office, then no Member shall have
one. 'Tis said, "the Sheriff may defraud by pleading Privilege in matters of execution," and "that his
executors are not liable to an action." 'Tis true, in an
escape, but the law is plain, that, where the Sheriff levies
money, his executors are liable to an action. Now,
there having been usage to the contrary, and that the
thing will run into all other offices, as well as Sheriff,
moves not to make an Address to the King about it.
Mr Vaughan.] Sawyer argues very well, but his reasons must be well fortified to argue against Privilege of
Parliament. But by being Sheriff, a man must be in
two places at one time, and you fine him here for his
absence. 'Tis said, by Sawyer, "that his executors are
liable to account," but the Sheriff may be in this House,
and the creditor's wife and family ruined. 'Tis said,
"this precedent will go hard upon one gentleman." It
is so, but would have it otherwise for the future.
Mr Williams.] The office of a Sheriff differs now
from what it was anciently. It has been said, "if you
declare this a breach of Privilege, you declare the King
has broken your Privilege"—We know that ordinarily
the Sheriffs are presented in the Exchequer, by the Judges, to the Lord Treasurer and the Lord Keeper, and
then the King pricks them, and perhaps he knows him
not to be a Member of Parliament. The great ministers
are the men that must inform him of it, and they must
answer it especially. A breach is out of the nature of
Privilege, and why are we exempted from WestminsterHall, but because Members are not to be disturbed,
but attend the weighty affairs of the nation? Men
cannot be imagined to be in the County, and attend the
weighty affairs of this House—Says one, "the consent
of parties is in the case, and consensus tollit errorem."
But 'tis the House that is concerned, and must consent
to it, and he should be questioned for pleading at the
Lords Bar without leave. 'Tis said, "that many Members have been Sheriffs," and therefore 'tis high time to
stop it. First settle the thing on breach of Privilege.
Sir Charles Harbord.] 'Tis no breach of Privilege at
all, the thing has been usually done, and always so
done. He thinks it true that no Member can be absent without leave of the House. Suppose the Sheriff should put the King's money into his own purse, the
consequence is, the King indicts the party. The King
makes a man Sheriff, and he is then chosen a Parliamentman, and he cannot attend the business of the County
to pay the money according to his writs—And persons
escape—He thinks it a wife and a good counsel, that
for the time to come this be not drawn into precedent,
and to move the King so. In 9 and 10 Edw. II. chap. 9.
There are directions for the choice of Sheriffs, and in the
7th chap. we read not a word of the King's pricking
Mr Streete.] 'Tis the resolution of the Judges, that
this law mentioned does not deprive the King of his
sovereign power, but only eases him of the trouble and
labour. The day after All-souls, the King may prick
Sheriffs without them. Queen Elizabeth, King James,
and the late King, have pricked Sheriffs. It was not
the opinion of the House in the case of Sir Edward
Coke. Look on your own books, and you will find, in
that case, the opinion of the House "that a Sheriff of
one County may be elected to serve for another, and the
Sheriff of his County may be returned for a Borough
in the same County," and some now sit so. 'Twas never thought but a Sheriff may be here, and it disables
him not to attend his service. There are four of your
Members that have served, this Parliament, for that
County we now debate.
Sir Thomas Meres.] Coke's case was nothing to this
now in debate, and to clear that repeats the Question
—"Care of our Privileges." The making a Member
of this House Sheriff is a breach of the Privilege of
this House. This case comes not up to the other.
This case is, the House sitting, to make a Member
Sheriff of a County; and all that is said against it is,
"That we have some sit here that have been Sheriffs of
that County." But if the thing has been once or
twice done, and therefore must be a precedent, then,
by the same reason, the Lords may try your Members,
because it has been once or twice done. 'Tis said,
"That 'tis as fit Members should be Sheriffs, as Justices
of the Peace." If that be the case, we may all be
made Sheriffs. If it be as equal to make us Sheriffs as
Justices, perhaps forty or fifty may be made Sheriffs
hereafter—He lets it go to help the Question, that we
may be made as well Sheriffs as Justices of the Peace—
Did ever any man yet make a voluntary answer to a
suit in Westminster-Hall, and it came to your knowledge,
that ever you passed it over? And so in this case now.
Though the case be far different between WestminsterHall and Fagg's case; for the Judges say, "you may go
on if you will," and take no farther notice. But the
Lords say, "No, though you tell us you are a Member,
yet you shall appear." Shows you this only, how little a step the Lords may take advantage of—And now
tis spoken of here, if not complained of, it may be a
Mr Powle.] The arguments of the Gentleman of the
Long Robe (Sawyer) go clearly to make every man
here Sheriff. "Ita quod nec tu, &c." "Neither yourself,
nor any other Sheriff shall be elected, or returned to
serve, &c." Examine the reason of this law. 'Tis from
the great trust which requires necessary residence in the
County. Anciently the Sheriff of a County was equal
to a Lord Lieutenant. He had absolute command over the military power, the posse comitatus; and has
the executive part of the law. Anciently Justices, and
Deputy-Lieutenants, were strictly to be present upon
the place; but there are others in the County now,
that may perform that office. The Sheriff cannot have
any to perform his. So that the Counties are either deprived of an officer, or the House of a Member.—3 Cha.
(fn. 3) was Sheriff of a County before the Parliament,
and he was chosen for Bath, and attended in Parliament,
and was fined 500l. in the Star-Chamber for non residence
in the County. The precedents are mistaken. Lord
Coke comes nothing to this case. 1 Charles. The Duke
of Buckingham was questioned and impeached, and that
Parliament was abruptly broken up at Oxford. 2 Charles.
The same Duke, to prevent Coke's and other gentlemen's being against him in this House, made them Sheriffs, and the Parliament took notice of it in a remonstrance. Those very gentlemen sat not, and Coke in
particular did not, for the very reason of being fined,
He has a respect for this gentleman, (Jennings) but if
you do nothing in this, you give up the right of the
thing for ever. The Customs have been granted to the
Kings of England for life, these three ages, and never
to be a precedent; yet they have been for most of the
Kings lives but the last. 'Tis said "this is putting
breach of Privilege upon the King", which is mistaken.
The Statute directs the chief officers of state to nominate
three for Sheriffs. He will not define Prerogative, how
the King may prick Sheriffs without it. If the Sheriff
be not responsible, respondeat superior, and 'tis construed
the County is superior to the Sheriff. The King therefore chuses now, that the County be not responsible for
the Sheriff. The King takes it for granted that his officers will not nominate to him persons not fit to serve
in that office; therefore moves as before.
Sir John Duncombe.] He thinks this hard upon this
gentleman (Jennings) who only pursues those who have
been before him. He was one of the three brought to
the King. The thing has been done three or four times
in this House, and not controverted, and 'twas thought
this gentleman might be Sheriff as well as those before
him—Unfortunate at this time—As to the inconvenience—The practice is, a man out of his County, and
now chosen Sheriff that lives not in his County, to
support hospitality, because he is brought hither to
live here in the town, and have no charges on him.
You were told it was once an office of profit—Though
the image be left, the substance is gone. In all times
there were dispensations granted to Sheriffs to live out
of their County—And now the Sheriffs have deputies
and attorneys. You have declared there is no Privilege
against the King, and no man to be protected for his
debt. But if the Sheriff levy money on the subject,
how shall he get his money if he be a Parliament-man?
This is an inconvenience he knows not how to get off,
but by beseeching the King that this may be so no
Sir Winston Churchill.] He agrees to the inconvenience of it, but thinks it not a breach of Privilege. Put
the case that another man's cattle make a trespass upon
him, and eat up his grass, but if the gaps or gates be
left open, 'tis his fault. This is no trespass, but our fault.
Before you vote it a breach of Privilege, would be satisfied whether the King taking somewhat that is not
his right—To prick a Sheriff—If that be not the point,
it has respect to your Member only. In his case, he
should think it hard and reflective that he only should be
the man excepted. Not a Yorkshire gentleman has yet offered any thing against it—Too light a thing on half an
hour's Debate to jump into a breach of Privilege—The
Lords will cast it upon us. Suppose you should be told
and convinced hereafter, that 'tis no breach of Privilege
—Would not have this fastened as an article on the
Lord Treasurer, when so many have been wiped off,
brought in by a side-wind—That the Treasurer broke
the Privilege of this House, ex post facto. (He broke off
abruptly, and was laughed at by many.)
Mr Leveson Gower.] This is not only an inconvenience, but a breach of Privilege—For a person, before the
Parliament sat, has deserved it, and now he is a Member
not suffered to be Sheriff. Four Members have served
Sheriffs for this County, therefore would have let the
Question be only general, and favour this Gentleman so
far now, as not to put the Question upon him.
Col. Birch.] Is afraid to speak to you in this matter,
left, if any gentleman should say here we fly in the
King's face, he may tell the King so. He can never
believe that the same men were called up in three Parliaments in Edw. III's time, (In H. IV's time lawyers
were excluded.) But 'tis said, Why a breach of Privilege at this time, and in this case, and never so before?
He is apt to think that things have been done here that
will never be done again. Such sums, he believes, any man would be laughed at, that should move for them
again. He sees but few (fn. 4) in the House now that have
had that mark of favour to be Sheriffs of Yorkshire.
Why now do you say that the Lords shall take a Member from his attendance to their Bar? But you say a
Member for a year may be Sheriffs of Yorkshire—And
say nothing to that. The argument will go against you,
if you take this resolution. A learned gentleman (Sawyer) told you, "go to the bottom," but he was not at the
bottom. He agrees that the King may make an Ambassador, and he tells you Sheriffs have been made, and
of this House afterwards—But he supposes the House
will not much care for their company—You would have
heard of it before. Three or four may be sent into foreign service, but scores may be made Sheriffs, and
things might have gone another way. Would do the
thing easily—It cannot reflect upon the King, and is
far from thinking on a Minister of State. But in the
best Prince's time would provide for the worst of things,
and whether the zeal of us here will continue to send
for them up, he knows not; therefore he is for the Question.
Mr Sacheverell.] Sir Richard Pemberton's case, who
refused to go into Ireland, and though it be in the
King's dominions, was not fined. He denies that the
King has any power to prick Sheriffs. Sir Richard
Tempest's case, Sheriff of Lincoln, he was not fined for
refusing to be Sheriff, because he was not nominated
within the time of the Statute, but he held it by appointment, and the King gave him all the fines and amercements, and other perquisites, to hold the place. If
you let this go without supersedeas, 'tis giving up the
Sir George Downing.] This is a breach of Privilege,
and the party concerned makes no complaint. 'Tis taken up by other gentlemen, and not the party concerned. You are going to vote, That making a Member
Sheriff is a breach of Privilege, and you never saw any
thing to the contrary, but that he might, &c. There
is no Question yet stated. Some say, "The King has
broken the Privilege," without any farther ceremony.
Shall not a Committee first examine it? In far less
things than this we go by steps. Let records be searched first. He will else never vote it. He will have his
tongue out of his head before he will do it.
Sir William Coventry.] That which raises him, is,
That he would not have that thought the Question, that
is not the Question; "That the King has broken our
Privileges." The whole Debate was, that the King never
had, nor did break our privilege.
Mr Hale.] The business depending has passed silently
over formerly; shall we say, therefore, that Privilege
is not broken in the case of Fagg?
Sir Henry Capel.] You have been told what the case
was in the late Duke of Buckingham's time. Should it
happen ever again, that letters should be sent for Members, and they have them not, and Sheriffs kept from
hence—Who can then sit here?—If so, let us go on
with the Bill of money, and other things, and lay aside
the difference between the Lords and us—He rather
would not have this Gentleman made a precedent, but
he thinks himself beholden to him for being the occasion of this Debate. If the Question be of Privilege, he
must give his Vote for it.
Mr Bennet.] As to trespass spoken of, 'tis time now
to mend the hedge, and shut up the gate. He hopes
Jennings will not suffer so much by it, there will be found
somebody to officiate it, and he to have the best share
of the profits—And that we are so fond of him, we will
not part with him.
Sir Edward Dering.] It concerns not him to answer
whether Jennings serve here, or in his County. Let
the gentlemen concerned look to that, before he takes
the office upon him. The danger of making one Sheriff that is a Member, and the consequence of making
many, is but a remote reason, and weighs not with him
—We have had three or four Members Sheriffs of that
County, and no complaint made of it. The DeputySheriffs do give security for performance of the office—
In all cases, would have the King treated with all reverence, and in this most tenderly—Would, therefore,
only address the King, "That, for the future, no Member of the House be made Sheriff."
Sir Thomas Littleton.] By this means we strike off
half our Privileges; for writs of Privilege a man can
only have when the suit is begun. It is moved to temper the business—Is sorry for the Member concerned,
for whom he has a respect; but, if you proceed no farther than an Address to the King, "That it shall be so
no more for the future," you give up the cause. For
he has observed, that when a thing has been voted to
be no precedent, for the future, it proves often to be a
precedent to do the same thing again.
Sir Henry Goodrick.] Hears it said, "that few, or
none, of Jennings's countrymen are concerned in this
matter." Though he has been silent in the thing out
of modesty, is concerned as a reflection on his person,
and reputation, which he would have so saved, as that
the House may attain their end—We all conclude for
proceeding, by way of Address to the King, and would
have it in as home terms as you can invent. Pricking
of Members Sheriffs, you find an encroachment on Privilege—Moves therefore that the Address to the King
be "not to prick any Member that serves for County,
City, or Borough."
The Speaker.] Upon some disorder said, If any man
have a Privilege to be disorderly, let me know it.
Sir Philip Warwick.] We may have many Privileges
started up at this rate, that we know not of. If the Gentleman was the case only, he would say, it is as fit for
him as another to be Sheriff. 'Tis one thing to vote
the King has done you a wrong, and another to address, &c. As to the convenience, he agrees—But
that this is not the first Question, but the second.
The Speaker, said jeeringly to Sir Richard Temple.] To
your place, Sir. I shall be thought partial if I let you
stand there—Then he proposed the Question, viz.—"That
'tis a breach of Privilege for any Member to be made
Sheriff, &c. during continuance of Parliament."
Sir Lionel Jenkins.] Doing a thing illegal—Knows
not how to be so, till declared and proved so.
Mr Streete.] Offering these words to the Question, "without his will and consent," 'twas concluded regular to
offer words of addition to a Question. But when the previous Question is put, and passed, no man can say any thing
to the main question.
Mr Sacheverell.] Moves that the Lord Keeper be
sent to, to supersede Jennings's commission of Sheriff.
[The main Question was then put, and passed, 157 to 101.]
And a Committee was appointed to consider of a proper way
of superseding the Commission, and discharging the Sheriff from
Wednesday, November 17.
[Debate on Sir John Fagg's case resumed.]
Sir John Holland.] This unfortunate difference between the Lords and us must render this, and all other
Parliaments, useless to the Kingdom, and shake the
foundations of the government, if not made up. Therefore, in a Conference, would represent to the Lords
these good Bills upon our hands, of our Religion, Liberties, and Properties, and enumerate them, and that
we will speed them, and desire the Lords to do it, and,
for the present, to lay aside this their Judicature, and we
will our Privileges, and, when that's done, that by Conference we may convince one another amicably.
Mr Waller.] We have a great many good things in
prospect, and we have hopes of our Religion, Properties, and defence of the Nation, and all these hopeful
fruits to be shaken down by the storm betwixt us and
the Lords!—He will show you experience by the glass of
experience. In his time fell out the breach of three or
four Parliaments, and the late King was persuaded to
set forth a Declaration, which was shrewdly penned. So
that the King could make no use of Parliament for
nine years, and he was so long without one, and might
have been still, but for the business of Scotland, which
caused many fears. There wanted not counsellors then
to advise an arbitrary government; there were monopolies, and imprisonments, and such judgments upon it
—None feared a Parliament—They judged us here for
speaking. If the Government be so spoiled, that the
King cannot govern—The Crown is the most ancient
portion of the Government, and the Lords are immediately from the Crown. The Commons sit here by writ;
at this rate here may be none but the Crown, and the
people left to govern. Therefore he seconds the motion for a Conference, to lay aside this difference, till
our good Bills be ended.
Mr Boscawen.] The matter is of great moment. He
would not give the first cause, nor provoke the Lords
to do an unjust thing. He thinks that if this concerned our Member only, 'tis not so great as 'tis made to
be—Consider, first, whether you have reason to retract
what you have done. That which will do you right,
will be to keep your Privileges—And would lay to
heart, whether really you have a right to what you pretend to, and then not to postpone it by a kind of submission to the Lords.
Sir Jonathan Trelawney.] You move for Conference,
which is a kind of retracting.
Sir Thomas Littleton.] The argument of this intended Conference is from the danger of no Parliaments;
but that's a dangerous argument to use here, and much
more to use it to the Lords—Wishes it were not insisted
upon—Time is a great mollifyer of things, and twenty
things may happen to predispose mens minds. He that
discovers fear in all matters of consequence, has usually the worst of the business.
Mr Secretary Coventry.] Hears a Conference proposed to postpone this difference betwixt the Lords and
us, and there has, without doubt, as Littleton says,
been a spirit of moderation amongst the Lords as well
as here. What we are told, "of the example of the
late King's time," by Waller, is of great consequence.
If the ill be not cured, whatever you postpone—If arbitrary Government be the consequence, you cannot help
it; and whether 'tis not better to have a Conference
with the Lords upon the main point, than postponing
it? Consider, when that's done, whether you will not
return to your former heat. He never heard that a
cessation of treaty promoted peace; but when you
make a truce, and no treaty, the war comes on afterwards
more hardly upon you. He moves therefore for a Conference, to discover the Lords temper, but, upon the
first advance of Conference, to make the step moved
for by Holland is too dangerous, he fears, to attain your
Col. Birch.] You are moved by one to assert your
rights, and, by another, you are moved to postpone the
matter in difference. Though, it is said, the consequences of this breach are such as are not fit to be named here, yet this business will be judged by all the
people of England. There is great notice taken where
the quarrel stands, and he would sweep it from our
doors. He would not lose your right, but would do
all things in the best of time. Would first, therefore,
show the King our obedience and duty to his desires,
to stretch it as far as we can; and next, would let the
Kingdom see—Suppose Prorogation, something must be
resolved on—Therefore some Gentlemen may think it
some condescension, but he thinks it not so. For
when you lay it before the Lords, we do our duty to
the King and Kingdom, to give dispatch to the public
business. Therefore that some time may be appointed for the great business, he desires a Conference.
Mr Sacheverell.] He is as much for these Bills depending as any man, yet, if you take not great care,
and move as Birch says, it will look as if you never intend to meet again. If the matter be such as never to
be reconciled, he appeals, if it be not be the best way
to try the difference first, and then go on with the
Bills. If you go on singly upon this point of Privilege, he can never agree to it. If you ask time for all
these Bills to pass, 'tis reasonable for the Lords to say,
That you tie up their hands; therefore, first resolve to
assert your right, "That no Appeal can be brought to
the Lords from any court of Equity."
Sir Thomas Lee.] Is of opinion, that the way to get
your right, is to assert it. He inclines not to go into
the merits immediately by Conference. The Lords
may be as fond of their Bills, as you of yours; but, if
you postpone the difference, without asserting your
right, you give them no reason to postpone, and no
reason to put off the cause. They have asserted their
right upon the same bottom they left it; therefore it
concerns you to follow your opinion too, of the last
Session. He finds this right asserted by the Lords, not
only upon your Member, but the whole people. He
thinks, that, in this case, the Lords wrong the King. The
Lords sit for themselves, and act for themselves. This
House acts for others, and here may be various alterations of men. Therefore he is not for coolness in asserting your right, but for the necessary preservation of
the Kingdom. That these ships may be built, and religion settled—Possibly, the Lords may incline to wave
this dispute for a time, and neither side to give up the
Mr Sawyer.] Here have been several motions, but
cannot almost agree to any of them. He is against
postponing, or adjourning—Never to strike at the root
of the business, and such remedies are worse than the
disease. The last Session you took time to consider the
Lords jurisdiction, and found they had none, and so
you passed the Vote. All are agreed, 'tis a breach of Privilege to summon a Member, and so you have declared it—There is something that must be done, and that
immediately, and by way of Conference, but what
proposition to make, is the Question.—Not barely
touching Fagg, for the Lords will laugh at it—But this
House taking notice 'tis a breach of Privilege—If this
was a new cause, would say no more; but the case is
altered; for we say, here has been Prorogation, and
'twas necessary to take off the present difference—These
points of jurisdiction the Lords will never depart from.
In King James's time, there was a difference between
the two Houses, and agreed by protestation, and 'twas
entered, "That the proceedings in that cause were no
prejudice to either House." But, in this cause, 'tis impossible to make any compromise, by any protestation
or saving. After all, we must end, "that 'tis fit an
Appeal be somewhere, that one single person in the
Chancery may not have the disposing of inheritances."
When we do it in a legislative way, we are all pleased.
Now, consider how this may be done—Offers his opinion, that this matter may be proceeded upon by a
Committee of both Houses, to settle the legislative
power in this judicature, and then the Commons having
asserted their rights, that they be inclined to the
settlement of the legislative way, and proceed no farther. Thus you accomplish all your ends, and open a
way of quiet to future Parliaments—For there was never such a step in any age; and this is his advice.
Mr Vaughan.] He has formerly sufficiently expressed himself in this business 'Tis in vain your Address
to your Prince, when the Lords latitude of jurisdiction
must interpret your laws—You have before you now
Bills to establish Religion, and to stop the inundation
of Popery, ready to overwhelm us. We have Bills to
indear the King to his people, and to recommend
yourselves to them. Is sorry the people should have
no fruit of this Session, but discourse of our difference
—Before you now subject the matter of your Message
—He thinks we may fight the Lords at their own
weapons. The last Session, the Lords sent you a Message of a Conference they desired, "about the safety
of King and Kingdom, &c." and much of that stuff—
What he disliked in that he does detest here, your
honour being his object—But—"Message of concern
to the Kingdom, and safety of the People"—Till you assert your right, good reason to tell the Lords you have
Bills—If the Lords can deny this, you justify yourselves to the people, and that the Lords are fonder of
power, than the public good.
Sir Thomas Meres.] Here have been several motions
—That motion, in order to a Committee of Lords and
Commons, is so far agreed, as that the Lords will let us
have our hats on. He has sat so with them. Which
way soever you go, gentlemen, desires you to renew your
Vote—Go which way you will, he would have you act
for the Commons of England. (He reads the Vote "of
no Appeals, &c.") But, at present, to defend the
thing of Privilege. 'Tis discretion, in this matter, to
have the Commons of England on our side. The
Lords told us, "'twas an unexampled usurpation, &c."
—Is there any reasoning in this? 'Tis all authoritatively from the Lords. Upon the whole, would have this
previous Vote, "that no Appeals do lie from Courts of
Equity, &c." For this main reason, to have the Commons of England go along with us.
Sir Charles Harbord.] He takes this of the Lords to
be a new Judicature, and it has not the badge of prescription on it. Next, 'tis no failure of justice if we admit it not generally on our Member. Loftus and Strafford, the great cause at the Council table. 'Twas then
determined, "that the King, in case of an Appeal of
injustice, might issue a Commission of Appeal, and they
judge it"—And that's final in Ecclesiastical Courts, and,
if so in Chancery, no failure of justice. Would not go to
war without your armour on. Would have this Question first, "to assert your right," and then go on with
Conference. Possibly, then, an expedient may be
found out, either of a Committee of both Houses, or
some other way.
Mr Garroway.] First pass your Vote, "That the
Lords have no Appeals, &c." Else, as has been said
very well, 'tis a begging Privilege which avers the Judicature—Suppose, after all applications to the Lords,
they will not agree with us—What then? If they give
judgment against your Member, there must be execution, and then what are you the better? If you assert
the common right in the thing, they will never execute
Sir Charles Harbord.] On his recollection, the Lords
have had, anciently, writs of errors, which do not judge
the merits of the cause, but only defect of proceedings.
These Appeals of equity subvert the whole course of
Serjeant Seys.] 20 Edw. III. fol. 3.—Writ of Error in
Parliament, on a judgment in the King's Bench. The
record was brought up by Sir William Thorpe, ChiefJustice of the King's Bench, and thereupon the King assigns several Counts, and Barons, and with them the
Judges, and, at that time, Thorpe supplied the place of
Speaker. But how they came first to take this qua
Barones, he knows not; and, at this day, though the
Lords have incroached, they do assign certain Judges
with the Committee. What they have formerly got
upon law, they would now get upon conscience.
Sir Edward Dering.] If we go upon Privilege, we
have arguments irrefragable to maintain it; and, if we
do not prevail, we have reason on our sides; if we do,
we may have fruit of the good Bills before us.
Sir Nicholas Carew.] The Lords have told us, "they
will not confer," and have made an Order in it; but
he would not give the Lords so great an occasion for prorogation. The Lords cannot force a Commoner thither—But he must petition, and when they know that
easy way of Appeal to the King, they will follow the
more easy way.
Sir John Duncombe.] He has sat still to inform himself. Now, he thinks the Question is altered from what
he thought it at first, viz. "for Conference," that
the thing might be calmly debated. 'Tis not for this or
that Bill, but for the Government he speaks. There
is a distemper, a chagrin, in the world, and, by this
heat, we may be in such a condition as never to be able
to recall it again. He hears of a disposition in the
Lords to an accomodation. He would have you do so
too. Would move slowly in it.
Mr Swynfin.] Unless what you would maintain, and
what you would yield, were stated, 'tis in vain to think
of a Conference. The difference between the two
Houses is not as between man and man. Before you
agree for a Conference, set your own resolutions, what
your Managers shall maintain there. Would know how
gentlemen came to differ from themselves since the last
Session. Would know your sense how far you will
maintain that right before Conference; else no man
dares undertake to go to Conference. Set down first,
"that this is a breach of Privilege, and that Fagg do not
appear to the Lords summons, and that no Appeal can
be brought to the Lords, &c." If you go less in this
than you have done before, or alter your minds, he
should be doubtful to go to Conference. The reasons
offered against this doubt, "If you add this, the Lords
will deny you any Conference, and so the breach will be
made wider"—Would consider whether we are not as
likely that this succeeds at a Conference, as if you asserted both—You will as well be denied Conference to
your Privilege as to the Judicature. You have been expressly denied Conference in Fagg's case, because it
would mention Judicature, and now we are as likely to
be denied, and so weaken yourselves in the other—Laying aside the one will weaken you in the other.
Sir William Coventry.] 'Tis not possible for your
Members to manage the Conference without your instructions. What was proposed first, was not at all to
confer upon the merits of the cause—He was surprized, at the beginning of the Debate, to find the King's
advice in his speech so much forgotten, when he presumed it might have been best remembered, and now
you are advised to go on hastily to the merits of the
matter—We are of the same mind still, and no Debate
to the contrary, and most seem to believe the Lords ill
founded in the business of Appeals in general, and
summoning Fagg, in particular; but, in the manner of
proceeding, there is great reason to bethink ourselves
of other methods. Shall we go on in the same steps,
when we have seen the danger? And there is no tergiversation in the case—Only the fruit of the good
Bills—And the provocation is given and not taken.
It has been objected, "we are not to decline the interest of the Commons that sent us hither." If you
confer upon Privilege only, you acknowledge the Lords
jurisdiction. Would not take more care of ourselves
than of those who sent us hither—'Tis necessary that
the plaister be as big as the sore, but would have time
to shape it—That still we may have a reserve, not to
exclude our Privileges, nor give up the matter of Appeals in general—Would not part with one weapon,
no, not to a pin—Then the point is, what Message
you will send for this Conference. If you put it only
on Privilege, you disarm yourselves. If, on the Lords
universal Jurisdiction, you may exclude Conference—It
may be avoided by not mentioning Privilege at all.
He has not vanity enough to propose a question, but
only his scope drives at, to let the Lords know, "that you
understand that there is a time appointed for hearing
the Appeal against Fagg," and not mention him a Member of the House. We have many things to object against it, but because many good Bills are depending, and we are loth to give them interruption, we
desire the Lords to set that hearing back. Thus, he
hopes, the rocks we are afraid of may be avoided.
Mr Secretary Coventry.] He has been as much for appeasing this difference with the Lords, as any man, and
has never advised any heat—The Lords have begun it,
and have summoned your Member. When a difference has been between two persons, and a box on the
ear given—The Lords have begun this difference,
therefore 'tis not for your honour to postpone it. He
that has received the injury amongst inferior bodies, 'tis
not honourable for him to put that off in the reference,
and he questions much, whether it will stand with your
honour, to desire a postponing this matter.
Sir Thomas Littleton.] The worst that can come he
is far from despairing of, ever having more Parliaments. Another House of Commons may come of another mind. By asking this Conference, we have a
double prejudice; by postponing, we have received the
aggression from the Lords, and forbearing our own
rights, which will be of hard construction without
doors. It is yielded, on all hands, that the Lords are
quick-scented, and will deny us Conference—He
would know whether any Member will assert what you
do now forbear to do. Would therefore do as you did
in the last Session, on this occasion; assert this right of
yours by a Vote.
Mr Garroway.] What's the subject-matter of our
Debate? Rather to yield the point of Privilege, than
that of Judicature, to judge us, and execute that judgment when we are gone home; else it may be played
upon you, that you assert Privilege, but you deny not
Judicature. Thinks it safe no other way; therefore,
would have the Question, "that the Lords have no jurisdiction in matter of Appeals, &c."
Sir Thomas Meres.] Two nations having fallen out,
one says, "'Tis my turn," and another, "'Tis my
turn." We have all said that 'tis our right—And not
to dare to put it down into our books!—If we are in the
least afraid, the Lords will run us down. He is, therefore, for voting it now, that we may not be put to it
to say "Good my Lords, grant us a Conference."
When we go on, in a Parliamentary way, he doubts
not of a good effect. He is not afraid of the cloud
spoken of by Duncombe; he supposes this cause of Shirley
is like a mastiff-dog, held by the collar, to be let
loose at us, and they will slip Shirley at us, as they did
the last Session, when we voted, "No new Bills to be
brought in, &c." If things go to their liking, they
will hold their dog; if not, halloo. If you show pusillanimity, then that of the Commons Appeals, that is
gone. Some say, "Ask this Conference, on the state
of the Nation, something like what the Lords did about
the four Lawyers." We thought that not fair, and
should we (with such a preface) come out with the single Privilege of Fagg? But, in that case, as long as
Fagg has us at his back, we are safe, for whilst the
Lords sit, we sit. But suppose there should be another
Parliament, and he a Commoner, and no Member,
then the Lords will be even with him (having no Privilege.) Moves therefore for the last Vote, and if you
will spend your time, do it upon what is for the good
of the Commons. Therefore is for putting that Question now.
Sir Henry Capel.] This Debate is perfectly to exercise our prudence and wisdom; we need not learn it
from the Bear Garden. If you will remind the Lords
of the King's speech, and show how far we have gone
according to it, to put by this for the present, you have
his affirmative to it.
Mr Sacheverell.] Agrees to it, if any thing might
follow for the good of the House. When you were
prorogued, let no man say this was the occasion. How
came you by four Prorogations before this business was
on foot?—The parting with this seems to him to be
a parting with the whole Commons right. If you ask
a Conference, either upon Judicature, or Privilege, the
Lords will deny it—He presses not the going up with
the Vote, but, unless you assert it, it falls to the ground.
If gentlemen are afraid to own it, the Lords have it
perpetually in their power.
Mr Powle.] Because this is argued by metaphors,
he shall do so too. Upon a difference, one demands
full interest and charges; if you go back at the beginning, you give advantage. The beginning of this
quarrel came not from you, 'twas studiously avoided.
Now the Lords send you a challenge. He that has
right to an hundred acres of land, and yet asserts but
twenty, surely weakens his pretences to the eighty—
And a train of gunpowder to blow both parties up
whilst they are treating—If there be any such stratagems as the Lords to keep this to controul you on future occasions, you are still free for a free Conference;
you have not yet voted "adhere." Would go therefore to the Question proposed, that so we may stand our
ground, and show no fearfulness.
Sir John Duncombe.] By this asking Conference you
may retain your Privilege, and the people admire your
tenderness in the good effect of this Session.
Mr Vaughan.] Should you pass over this Question,
'tis a discountenance of your claim, and should the
Question go in the negative, 'tis a quitting your claim.
Therefore he is for the Question.
Sir William Coventry.] 'Tis said, "that the prorogation, the last Session, was from something under ground,"
but most apparently, it was from the difference betwixt
the Lords and us. But would have the Conference
now, to try whether our Bills be the true cause of the
prorogation. If a man should be tied to be in a room,
where gunpowder is, surely he would be careful to set
his House in order; especially, if he apprehended a
train laid to it. Would go on to finish these Bills, whilst
the House is full, before it be thinned by the length of
this Conference. And, to follow the metaphor of "the
dog," would make no scruple, if his neighbour's dog
was unruly, to pray his neighbour to tie him up,
that these pretty Bills, our children, may pass unmolested.
Sir Thomas Lee.] Is fond of "the children," and is
for tying up "the dog," but the Question is, whether
this Conference is not a kind of a slur to our pretences?
If the previous Question be put, and a negative upon
it, the main Question can never be brought on again—
That what is done by Votes, the value and effect of them,
is gone in a prorogation, is the universal opinion—
'Tis a changing your mind as to so much as that Question imports. Suppose the Lords tell you, "because 'tis
a Question of Privilege, we will wave it;" and another
day, one tells you, the Lords have done it—Must you
then complain?—But would put it as far from you as
you can—And is for that Question, because he would
not have the thing slurred.
Mr Secretary Coventry.] This Question will preclude
all the moderate applications you have debated. At
the Conference would let the Lords know how quiet
you have kept all things in your station, to let the public business go on.
Lord Cavendish.] Was for this way of proceeding
the last Session, but is not for it now. Would have the
previous Question put—He is desirous that the good
Bills depending should pass.
[The previous Question was then put, and it passed in the negative 158 to 102.]
Mr Garroway, (privately).] By this Vote you may
get your Privilege for a few of us, and lose the Judicature upon the whole Commons of England; besides
the endangering never raising the spirit of the House
in it again, and hazard the Bills too.
[The Question for adjourning was carried 110 to 108.]