Saturday, June 22.
Debate on the Irish Miscarriages.
Sir Edward Seymour.] I do not apprehend how 400
men can keep England safe, if those who manage Ireland
play fast and loose with you. 'Tis time to enquire after
these Miscarriages, and to repair to the Council-Books,
for your information and satisfaction. If you do not what
has not been done before, you will be what you were before.
I was not for the abdicating Vote, but I am for preserving the Government; and if you do not, you will abdicate all you have done.
Sir Christopher Musgrave.] If you appoint some to inspect the Council-Books, unless they may have Copies, I
know not what use you will make of them. You must
take the whole matter, and Gentlemen will not undertake
to say what is fit to report, and what not.
Mr Howe.] I second the Motion. The hearts of the
People are upon Ireland, and there is a fault somewhere.
Some lay it on the House of Commons, others somewhere else: For the satisfaction of all Persons, I desire the
Committee may have Copies of the Books of all the
Orders, &c. and the Transactions relating thereunto.
[Which was ordered ]
Monday, June 24.
On the Impeachment of the Dispersers of King James's Declaration, [viz. Sir Adam Blair, Capt. Vaughan, Capt. Mole, Dr Elliott,
and Dr Grey.]
Sir Thomas Clarges.] This is a Case of Blood, and I
hope, if I am tender you will excuse me. In 19 Charles II,
there was a Committee appointed to consider Lord Clarendon's Impeachment. November 6, the Articles were
brought in. The course then was, that a day was set to
consider, upon Debate of the House, "Whether the Facts
charged were, in the Judgment of the House, Treason."
November 9, the Consideration of the first Head of the
Fact of Treason took up from nine in the morning to five
at night, "Whether Treason should be assigned?" Then
it was declared, "That there should be no Impeachment,
but on the Statute 25 Edward III." Then Lord Vaughan
stood up, and would make good the sixteenth Article; and
said, " I do accuse Lord Clarendon of corresponding with
the King's Enemies (fn. 1) ." I observe that in this Parliament
more Attainders have been reversed than in any one Parliament, and the reason is, the great oppression of Westminster-Hall; and these are cautions for succeeding Parliaments to be careful; and I move for a day to consider, whether this be Treason, or no.
[The Articles of Impeachment were read, which see in the Journal, and ordered to be engrossed.]
On the Breach of Privilege upon the Earl of Danby
(fn. 1) .
Sir William Strickland.] I would know how this Breach
of Privilege came? I would not have this Lord affronted.
Earl of Danby.] Had I thought this a Breach of Privilege, I would have complained, nor was it of that kind.
You have so many weighty Affairs upon your Hands, that
this is not worth your consideration.
Mr Smith.] I stand up only to tell that noble Lord, that,
if he will say he was not taken up by a Messenger, I am
satisfied; if he was, it must be Breach of Privilege; but if
there was no such Warrant sent, the noble Lord will tell
you, and you may proceed to other Business.
Sir Walter Yonge.] I would have that Lord tell you
plainly, whether he was taken into Custody? If he will
not, you must go another way. Common Fame says,
a Messenger served a Warrant upon him; and I desire the
Messenger may be sent for in Custody.
Mr Smith.] I am always for the Rights of my Country,
and of this House, and if he will not tell you, an honourable Person will tell you, that he saw the Warrant; and
that is Sir John Guise. I would know of him, whether the
Messenger had not a Warrant, signed, "Nottingham," to
take Lord Danby into Custody?
Sir Edward Seymour.] I do not see any extraordinary
method you need take in making enquiry into this matter.
The Privilege of the House is not to a Member only;
it is to the House. The highest Breach of Privilege is the
Imprisonment of a Member. If that be not, I know
not what is. Where are the Debates of this House, if
this shall be? Nobody can sit here with safety. Have
your Predecessors had so much caution in these Cases, and
will you be indifferent? Shall you suffer your Member
to be taken out of a supreme Court into Custody by a
Subpœna? That the Speaker, a Privy Counsellor, should
know of an Order of Council, that breaks your Privilege
to sit in Council, and he not hinder it!—This is a catching
age for Precedents, not only of making, but imposing
Precedents, when I consider how you parted with the
Habeas Corpus Act, when you sit here obnoxious to a
great man—Lord Danby says, "He does not know that
his Privilege was broken;" but he can tell, if he will, all
the matter. Put a Buoy upon the Anchor, that men may
debate freely, and not have that a doubt when we are
The Speaker.] Complaint was made to the Council of
a Ship seized at Exeter—Notice was taken that Seymour
was a Member, and there was no Order, but a Messenger gave notice.
Sir Edward Seymour.] I shall be tender of representing
a thing not as it is. I was served with two Orders, and
I said, "I would not appear to the Summons of a lesser
Council, when I was a Member of a greater." I told the
King, "I came in Obedience to his Commands, but not
to the Order of Council, but Persons that sat in Council
should know I was a Member." The King said, "He
knew nothing of it." When I had the Honour to sit
in that Chair, and in Council, no Member can say that
ever his Privilege was broken.
Sir Henry Goodrick.] If we must believe this Lord, &c.
he tells you, "It was no Breach of Privilege;" but what
if I, or any man, say, no Warrant was produced!—I
heard him say, "A man came from Lord Nottingham, and
desired to speak with him;" if this be made out, he has
dealt candidly with you, and all mankind.
The Speaker.] We are gone off from the matter. Persons of honour are shy, and think it hard in what concerns themselves: They look upon it as a point of honour. If a Warrant was ordered, it was a Breach of
Privilege. I cannot blame Westminster-Hall, if these things
be suffered when you are gone, if, when you are here,
you may be served as Lord Danby was. He tells you,
"He took it not for a Breach of Privilege"—But that
there was a Warrant, and served, is another Breach of Privilege. But if this be a Breach of Privilege, it is proper
to send for the Messenger.
Mr Smith] What I insist upon is, that Guise may inform you what he knows of the Warrant.
Sir John Guise.] All I know is this: I was in the Gallery at Whitehall on Saturday, where I met the Messenger,
Evans (whom I had the Honour to know, having been in
his Custody.) I told him, "He would be brought before
the House for seizing Lord Danby." He replied, "He
had his Justification in his Pocket;" and produced the
Warrant for seizing Lord Danby for treasonable Practices,
Sir Edward Seymour.] I hope Lord Danby will have a
better opinion of me, than that I did reflect upon him.
Pray order the Messenger to attend you, seeing the noble
Lord is tender in telling you.
Sir Henry Goodrick.] If it be Treason, your Member has
no Privilege. I would not stifle the thing, but send for
Mr Garroway.] I would nip this in the Bud. The Clause
in the last Act of Habeas Corpus excepts Members from
being attached without acquainting the House. I would
not only send for the Messenger, but the Warrant.
[Evans, the Messenger, was ordered to attend the next day
with the Warrant.]
On the Heads of Exceptions in the Bill of Indemnity.
On Mr Justice Bedingfield, &c.
Mr Garroway.] Bedingfield is dead, and it is said of him
that his Advice was extrajudicial. If once Judges shall be
summoned to Court to give private Advice, there is an
end of your Laws. You cannot disable a dead man from
office, but you may set a mark of displeasure upon him,
though he be dead.
Mr Christy.] If the King demands his Opinion, and he
gives a dangerous Opinion, and no case drawn, it remains
a doubt whether he was for the Dispensing Powers, or not.
Mr Hawles.] To what purpose shall we name a man
that is dead? For except all Opinions, and Crimes may
be more than in court. If there be a doubt in the case, he
cannot answer for himself. I would have no Question
The Speaker.] I must take notice that, in the last Vote,
you excepted a dead person; Lord Chief Justice Wright.
Sir Robert Rich.] It is known how late he came into
his place; he could not get much Money. He was the
worse for his place; his Estate is very small, that descends
to his Posterity, and I would not except him.
Sir Joseph Tredenham.] He is dead, and the Question is,
Whether the sour grapes he has eaten have set his sons teeth
on edge? He was dead before you made the Resolution,
and I question whether properly you can name him.
Mr Smith.] I believe, this Gentleman had a small Estate,
and so would the rest have had, if honestly got. You will
do the living justice in sparing the dead.
Sir Henry Goodrick.] This man gave his Opinion at a
private Conference. His Opinion was not a Judgment in
public; let it be affirmed by any Gentleman, that he was
so far from countenancing the Law as to take the Test. I
would restrain it to this Point, and no more upon this
Mr Foley.] All the Country know that the Judges gave
the Dispensing Power in charge; but because the House is
inclined to spare, put the Question in general.
Mr Hawles.] Before you put a general Question, think
of another Person who told you, "He had his Defence
in his Pocket." (Sir Robert Sawyer.)
Mr Garroway.] You have had a touch by Hawles of the
Attorney-General. He can satisfy you positively, whether he had not Order to advise, and have the consent
of the Judges, to draw Hales's Patent; if not, he is in the Case.
Mr Hawles.] In the Attainder of Stafford in Henry VII's
time, the King sent to have the Judges Opinion; but
they would not give any Opinion but in Court, because
they might hear the matter argued by Counsel. This is
the same thing; and those out of Court are as criminal
as the Court. I wish the Gentleman (Sawyer) had
his writings here that he told you of, to inform you.
'Tis plain and down-right, that this was to suppress the
Protestant Religion. The same Person that drew this Patent, gave the Patent to the Popish Bookseller to print
Popish Books, not to exceed five thousand in a year, and in
that Patent there are the same Clauses as in Hales's Case.
If Bedingfield be exempted, I am contented, but I would not
let the less guilty be exempted, and the more innocent go
Sir Thomas Littleton.] Four are a reasonable number to
except: I would not make too many desperate. What are
the Sollicitor and Attorney? They are but ministerial; the
Draught is sent to them in bœc verba, and they do but sign
it; and where they are but barely ministerial; I would
leave them out.
Mr Palmes.] When you intended to except but a few,
it was that you would make them capital. If you do not
lay your hand upon those alive, they may do the same
thing again. Will you part with eight Judges in a
Sir Robert Cotton.] We are upon the Judges, and I
am surprized we should fall from the Question upon the
Attorney-General, who was but ministerial. He left his
Place of Attorney-General about prosecuting the Bishops.
This will alarm many less criminal, and I am against it.
Sir Thomas Lee.] There is a collateral Question on a
Members, who seem to be justified or excused, because
he was but barely ministerial. I would ask one Question
for all, but I would not have it hereafter go for a rule,
that a ministerial Officer may do any thing (Indeed all are
ministerial.) But, suppose the Chancellor is so, who sets
the Seal to an illegal Patent—Families depending, it may
raise many Enemies, which is not the end of the Indemnity, but to punish some, and bring others heartily to
embrace the Government for the Grace they receive. Great
Numbers of Incapacities are so many marks of Ignominy
upon so many Families.
Sir John Guise.] Upon this Maxim of Policy, I cannot agree to employ those I cannot trust, or put them in
a capacity to do more mischief. What will all the People
ruined by these men say to us? Pray what have they deserved your favour for? For breaking all your Laws? I
believe, you will not exclude one of that Number from
justifying himself. Pray propose every man in particular,
and not a general Question.
Mr Hampden, jun.] I think you cannot take the Indemnity too far. It is our business to heal the Nation;
so far as is consistent with our safety, pardon all you can;
only in one Case, you cannot pardon, and that is, not to
bring Blood upon your Posterity. But as for ministerial
Officers, they are all so. Posterity is innocent, whoever
is guilty, and put the general Question.
[Mr Samuel Johnson's Judgment was this day reversed, and he
was recommended to the King for Preferment.]
Thursday, June 25.
On the Warrant to seize the Earl of Danby, [delivered in by the
Sir Joseph Tredenham.] Before you enquire of Lord Nottingham about this Warrant, you are to justify your own
Sir Thomas Clarges.] 'Tis Treason, or Felony, that is
out of the Habeas Corpus. This Warrant is "for suspicion of
Treason." It ought to be Treason, or Felony, upon Oath,
and six of the Privy Counsellors hands to the Warrant.
But upon Treason, or treasonable Practices, you ought to
have been acquainted with it, the Lord being your Member. I hope you will vindicate your own Rights.
On a Petition being presented from the City of London, unsigned.
Sir Robert Howard.] I never heard of this Petition till
now. To one thing I can speak; certainly there is no
question of the Loyalty of the City of London, and their
full adherence to the Government. They got a Common
Hall, and went in entirely to the Change, and defended it
with their Hands. You have had Petitions here without
Names. You are told the Sheriffs are the proper Officers, &c. and that they will sign it, and pray let them
Sir Thomas Clarges.] I have known formerly strange
Petitions from the City of London. In 1641, to alter
your Laws on several Heads till they took off our Heads;
but the City is in much better temper. I know not, by
what appears, whether the Petition be from the Body of
the City, and I would not have it read.
Mr Howe.] I would keep out that filthy trimming trick,
to disoblige our Friends, and oblige our Enemies. I wonder we should go back to 1641, and not remember three
years ago. A great many Members have suffered in 1641,
as much as Clarges, and I would not do any thing that may
seem to disoblige the City.
Col. Birch.] The time I have sat here I never knew,
when a Petition came from public Persons, that ever it
was signed; but as for the Motions to return the Petition
back, for the City to call a Common Council to have it
signed, I believe it is true, that the Country is in many
places disaffected to the Government; therefore I would
not disoblige them: That safety we sit under, by God's blessing, is from them. There wants but one thing; if they
could get us loose from the City of London, their work is
done, that are disaffected. I would rather receive the Petition in the usual manner, but rather than not receive it,
I would send it out to be signed.
[It was sent out, and signed by the Sheriffs.]
Sir Thomas Lee.] When a Member brings a Petition to
you from any body, he must open it, with his desire to present it. The Person who petitions must come to the Bar,
and own it.
Sir William Williams.] If your Member was the Messenger to receive the Paper only, it is no great matter;
but if he present it in his place, the matter is, whether
you will send it out to be signed, or receive it from the
Member. If he will, let him move for them to come in.
He has taken it out of their Hands; he ought to open
and move it.
Sir Christopher Musgrave.] It was the Resolution of the
House that this Petition should be signed. I appeal to you,
whether it be signed; they only tell you they are directed
from the Common Council to present the Petition to you.
Sir Robert Clayton.] If that Gentleman did understand
the Constitution of that Body, he would know that the
Common Seal is never set, but only signed "Wagstaffe."
You have the Petition from the Hands of the Sheriffs, as
good Vouchers as you can have from that Court.
Sir Patience Ward.] The Practice of Courts makes the
best Interpretation of things. The City is a great Body,
and cannot sign the Petition, but you have the Sheriffs
who will sign it. I do avow it, and so will other Members, if required.
Mr Hawles.] I understood, that, when you sent it out to
be signed by the Sheriffs, it should be in no other manner than it is, "That they delivered it by command of
the Common Hall." Perhaps they were told it would
be a criminal matter to come with a multitude of Hands.
I think it ought to be read.
Sir Thomas Clarges.] By the Rules of the House, you
ought not to read the Petition. Forms preserve Essences,
and they must be observed. Any Order of Court must be
signed, and approved by the Court sitting, and the Order
registered. But they say, "No, not that; but in a tumultuary way"—when it comes to be an Act of theirs,
they will not do it. This is not such a signing as the
gravity of this House expects. It does not show that
the Sheriffs and Common Serjeant approve it, and for
these Reasons I must give my Negative.
Sir Thomas Lee.] I hope reading the Petition depends
upon the nature of the Petition, and not the form of delivering it. The use of signing the Petition is, that there
be no scandalous matter in it, and that they do avow it,
and are accountable to you for their discretion in the matter of it. I would read it.
Sir William Williams.] I do agree with Lee, if we could
pass to the matter without the form. If it have not that
form requisite, you never look into the matter. We are
upon the outside of the Petition, on the face of it; the
matter you cannot look into. If it be universally true that
a Petition ought to have Hands, or Seals, to it, you cannot receive it, and you have done wrong to so many Persons and Corporations you have received Petitions from,
without Hands, or Seals. Why do you require Hands to
Petitions? 'Tis that the Petitioners may be answerable
for the Contents. Those say, "They have order from the
Common Council to deliver it to you." You must have
the Petition owned, not for form sake, but a necessary
Rule. Suppose there is Treason in it, and no Person to
answer for that Treason, that Libel. In the Name of the
Speaker is in the Name of the House; I know it by experience in my Prosecution. They are a Body without
a Head, a Body without a Hand, when not signed. To
read it without a Hand,—I am against it. Let it be signed
as it is usual. It is the sanction of the Petition, and without a Hand to it, I shall never give my consent for it to
Mr Boscawen.] I appeal to Gentlemen, in times past,
whether a Petition from the City, signed by a public Officer, was not taken to be from the City? The Sheriffs and
Common Serjeant (who is the proper Officer) who are
Members of the Common Hall, are included as part of
that Body. You must put it upon that Question, and
valeat quantum valere potest. If you refuse that, you refuse what was never done to the City.
Mr Hampden, sen.] The only Question now is, Whether
they have so signed the Petition as to prepare you for
reading it; and they have not signed it as Petitioners, but
avow it from the Common Hall. They were present at
the framing the Petition, and when it was agreed. If
Gentlemen have no mind to hear reason, (Upon some
noise made) you may put the Question presently. What
farther Confirmation would you have? Does it not answer the End of all signing Petitions? "But," says the Gentleman, "the Sheriffs, &c. will not sign it as Petitioners,
but as Ministers of the Common Hall;" and, suppose
the Case should be that they do not consent, you are
obliged to receive it; it is no Fiction, no piece of Poetry,
but authentic. If because the Sheriffs do not agree to sign
it, and therefore you will not receive it, you put the Negative upon the Hall by the Sheriffs.
The Speaker.] They that are against receiving a Petition from the Commons ought to go out, because it is
their right to petition.
Sir Christopher Musgrave.] Till the Petition is opened,
the House is not possessed of the Matter, and those for it
ought to go out.
The Speaker.] I am satisfied in my Judgment that the
No's ought to go out.
So they did; and the Petition was ordered to be read, [174 to
The Substance was to desire, "That Dissenters might bear Offices as well as others, taking the Sacrament their own way."
Wednesday, June 26.
The Impeachment of Sir Adam Blair, &c. was read.
Sir Thomas Clarges.] This Impeachment being matter of
Blood, I would have it debated, Whether the matter contained in it be Treason? In Lord Clarendon's Case, it was
said, there was never any Precedent from Henry IV; nor
by the words of the Statute 25 Edward III, and I believe
no Precedent since that Time—Fitzharris was impeached,
and that was for conspiring the death of the King. We
are the Grand Inquest of England, and I hope I
shall never be wanting in my duty. I would know, whether, if an Indictment be brought to a Grand Jury, the
Question ever was, "Agree, agree," (some calling out so)
Enquire whether the Indictment be according to Law. I
desire so much satisfaction as a Jury would have. A
Consultation held, and no War levied, as in Lord
Russel's Case, is no Treason. If the King's Counsel will
declare it to be Treason, I shall agree; if not, I doubt it.
Mr Howe.] Though we have no power to make Treason, I hope we shall not have power to connive at it.
Sir Thomas Clarges.] This is an extraordinary thing for
a Gentleman to say, "that when a man speaks his mind
here, he connives at Treason." Lord St John, in his Argument against Lord Strafford, says, "that Judgment cannot be exercised but by Bill."
Sir Thomas Lee.] I confess, that I have not read that
Argument this long time, therefore I will not controvert
it, but I never heard that a Parliament could not judge;
but it is a Power to be kept solely in Parliament, left it
should be an Example to Westminster-Hall; and therefore
judged by Bill of Attainder. Before Edward III's time,
Treason was dressed up as in the late Informations. If
men act such things, 'tis destructive to the whole, and this
was put into the Statute of Edward III, by way of caution, like firing of a Beacon. You send not up the Impeachment till the House dares venture their Credit upon making it good, and the Commons ought to be satisfied that
the Evidence will hold out with the Lords as well as here;
else the Evidence should be punished. It is a mischievous
Practice, when the Courts of Justice have been exorbitant, and would be safe in so doing. This Declaration
that Sir Adam Blair has published, declares another King,
and dethrones this. If this be a general Opinion, I think
we ought not to carry up this Impeachment; if it be a
Crime (which every body thinks) it ought to be carried
up to the Lords, that it may be judged Treason.
Sir Thomas Clarges.] Lee was of Opinion, in Lord Clarendon's Impeachment, "That there was no Common
Law Treason;" upon Debate, that Impeachment was not
carried up till it was clear, that the Article was Treason,
Before the Statute 25 Edward III, Treason was so ubiquitary, that it was reason, to assert Treason, with the
Proviso relating to the Judges in doubtful Cases, &c.
After that Act, Treason was bandied more than before.
In Richard II's time, Sir Thomas Hawksley was judged for
making a Motion in Parliament, insomuch that Henry IV
was petitioned by the Lords and Commons, "That Treason might not be so hackneyed about;" and in Queen
Mary's time it was repealed. I dare put my Credit upon
it, there has been no Judgment of Treason from Henry III's
time; and Lord Coke is express, in his Chapter of Treason,
"That the Statute of Edward III was taken away by the
Statute of Queen Mary." Lord Chief Justice Vaughan
used this Argument, "That there was no Common Law
Treason, no constructive Treason." Lord Vaughan, (now
Lord Carberry,) brought in an Article in Clarendon's Impeachment of his "corresponding with the King's Enemies, and betraying his secret Counsels (fn. 3) ," which was special matter; and then the Article was voted Treason.
Sir Thomas Lee.] My friendship to Lord Clarendon induced me no farther, than that I was against the Address for removal of him from the King; but I concurred with the House, and went through every Vote to
make Impeachments easy here. At that time the King
was angry with Clarendon, and took the Seal from him,
that he might go out of Town into the Country. The
Duke of York did support Clarendon, who at that time
went to Church, and was reputed a Protestant; at the
same time, all the Lawyers, raised by Clarendon, followed
him, and a Gentleman then said (Waller) "Touch a
Lawyer, and all the Lawyers will squeak." Vaughan
(who was quickly after made Chief Justice) argued as
strongly against the Impeachment, as he had done before
for it, but told you he had changed his Opinion. There
are two ways of delivering in an Impeachment; one at
the Lords Bar, another at a Conference. The Impeachment of Lord Mordaunt was delivered at a Conference,
by Mr Seymour. I leave the House to consider, whether
you will deliver this Impeachment at a Conference.
Col. Birch.] I have sat here long, and seen many things
done. 'Tis usual that the most able Lawyers go up with
an Impeachment to inforce it. I see in my Eye a Person
of great worth, though aged (Serjeant Maynard) I would
have him go up with it.
Serjeant Maynard.] Pray put not that upon me, who
know nothing of the Business. Pray let Birch go, who
knows the whole Business.
Col. Birch.] I never refused the Service of the House.
The Reason why I moved for Serjeant Maynard was,
because never any man did argue better in the Impeachment of Lord Strafford. Clipping a Shilling is Treason,
and is not subverting the Government? I would have the
Person to carry it up, who is the fittest to carry it on.
The Impeachment was ordered to be carried up to the Lords
by Col. Birch.
[June 27, Omitted.]
Friday, June 28.
Sir Thomas Clarges reports, from the Earl of Nottingham, an account of the Warrant issued out against the Earl of Danby, viz. "That
on Friday last, the Earl of Nottingham was informed, that Lord
Danby had fitted out a small Vessel with Arms, with some design
unknown to his Relations, and a Wherry to carry him away;
that he had this Information from the Lord President; that he
had not time to put it in writing, nor was it given upon Oath,
but he wrote it, upon memory, for his own Satisfaction. Upon
Enquiry of the Reasons, &c. from Lord Danby, he said, "That
the Vessel was his own Yatcht that he had fitted it with the same
Arms it had, and no more than before, to make use of for his diversion; and that he had no design in the least criminal." "This," Lord
Nottingham said, "he found so ingenuous an Answer, that, considering his Behaviour in the Change, in contributing to the
present Establishment, he released my Lord without Bail, but
with promise, upon his Word and Honour, to appear upon
Mr Howe.] I am willing to go on in the Act of Oblivion, but I am concerned that this proceeding sticks
not only on the People, but that their Representatives may
be in danger. But if, by intreaty, a man may be taken up
in this manner, every mother's son may be taken up. I
hope you will order the matter so, that you may justify
Mr Bickerstaffe.] This was in the Afternoon, and the
House not sitting; upon complaint to the President of the
Council, he could not do less.
Sir Robert Rich.] I suppose that Gentleman was not
here, when the Messenger gave an Account of it. He
said, "He had served the Warrant, and whispered Lord
Danby in the Ear."
Sir John Thompson.] You may remember, Evans, the Messenger, acquainted the House, "That Lord Nottingham
granted the Warrant without Oath." I have nothing to
say to Lord Carmarthen, but one Member is injured, and
I know not how to justify the thing. If this Warrant
was granted as a Privy-Counsellor, or a Justice of Peace,
I know no Law for it; for if six Privy-Counsellors do it,
and here is but one, it is worthy your Consideration. If
as a Justice of Peace, he cannot take up a man without
Oath. If one Counsellor shall whisper to another, and
imprison a man, I know not who can be safe. If we
take up this now, at the rate Elections go at, and the
Determination in Sir Samuel Barnardiston's Case, they may
have a Parliament as they please. I know not but that
it may be in the Power of one great man to make a
Parliament. I hope the House will be jealous of their
Sir Robert Cotton.] I take it, any Member of the House
may be arrested for Treason, or Felony, without leave of
the House, but he cannot be detained without leave of the
House. But the Question is then, Whether there was an
Oath given? In this Case, I think it was necessary. I
think the Power of the Habeas Corpus late Act lays that
aside. But whether one Privy-Counsellor, without six,
can take up a man, without Oath, in matters of Felony,
or Treason, that is the Question.
Sir Francis Blake.] I should be loth to go into Northumberland without this being decided; there would be no
safety for me when I am at home.
Sir John Guise.] I am much concerned that this, by a
general silence, should be passed over. The Breach of
Privilege seems plain; is it not a thing to be mended? If this be prejudicial, and made only a jest, to
pass it thus over, if this be done to one, it may to another. Whether if you complain to the other House, of
this Breach of Privilege, it may not be prejudicial? I
would pass it over rather than give interruption to the
great Business, but so that neither I nor any man else be
Mr Garroway] I cannot see but that this is a Breach
of Privilege. I would not drive it high, but declare my
mind. What you will do in it is another thing, but I
hope you will vote it a Breach of Privilege, though it
be no Commitment, the only taking the Member up without Oath. I would go as softly as we can, but I know
not how to proceed upon Lord Nottingham, without coming to the Lords. I would vote it only a Breach of Privilege, and address the King to take Order that the
like be not done for the future.
Mr Howe.] I cannot agree to this Motion. Have we
not declared our right? What are we the better? In two
Months, this man may go round the House, thus. I
hope, as Englishmen, we shall not forget our rights; and
any man that will do this is not fit to be employed in the
Sir Christopher Musgrave.] I think this is a Breach of
Privilege. I suppose it is not the intention of the House
(since the Act of Habeas Corpus requires six Privy-Counseilors to sign the Warrant,) to approve it in one only. If
that be not our Privilege, I know of none that we have.
I would not have it go off, that he could warrant the thing.
I think we ought to vote it a Breach of Privilege, and
address the King that nothing of this kind be done for the
Col. Birch.] If this had been done by a Person that had
not very well understood Privilege of Parliament, I would
be for it as proposed; but the thing apparent in the Warrant is called "treasonable Practices," and it was evident
to him before he signed the Warrant. If there be any
thing you do not see, pray let us feel it, if you will examine it to the bottom. I am not so much Lawyer as to
distinguish "Treason," and "treasonable Practices." See
the Bottom of all, and then take your Resolution.
Mr Charles Montagu
(fn. 3) .] There is one thing I cannot
solve. The Paper that Lord Nottingham gives in says,
"The Information was given in on Friday,", and the Warrant bears date on Thursday.
Sir Thomas Clarges.] That may be a mistake. He said,
"The Warrant was for treasonable Practices," which is
bailable. For Treason and Felony plainly expressed, if
an ordinary Justice of Peace may bail, this may be so too.
Pray vote it a Breach of Privilege, and address the King
to signify your opinion of it, that it may not be so for
Sir Rowland Gwynn.] I am willing you should put the
Question, but if you say no more than is proposed, I am
against it. I think my Lord of Nottingham's Answers are
not fair. I know not what to make of it.
Serjeant Maynard.] As this case stands, a Member is
imprisoned, and a Warrant is made to take him for treasonable Practices; if we take notice of it, and let a Member sit amongst us so accused, we cannot well answer that.
We are to vote it a Breach of Privilege, and then enquire
what those treasonable Practices are. At this rate, we may
all be imprisoned, and whipped to our lives end. Vote it a
Breach of Privilege, and sit not mute upon so plain a
Sir Henry Goodrick] I look upon this as an Invasion of
Privilege, and worthy your cognisance. I hear it moved
to refer it to the Committee of Privileges to enquire into
it, but I think that not fit. From whom will you have
Informations? Will you send for Lords Nottingham and
Carmarthen? I would have a good correspondence
with the Lords; the Peers will not come to you, and
there will be a rupture; but if you will come up to the
Motion, for your honour and ease, vote the Breach of Privilege, and then address the King.
Mr Garroway.] I shall speak to your Question. It does
not appear by that Answer, which Lord Nottingham gave,
that there was sufficient cause to take Lord Danby into
Custody, and therefore vote it illegal, and a Breach of
Col. Birch.] I desire to speak a word to the Question.
I have told you that I thought this a strange thing, and it
was as strangely done for a Person of his Understanding
and Honour. To me it appears more; when Lord Danby
to this House is upon his Parole to appear when summoned,
and we all know he is in Custody by that; which makes
me think, there is more in it than at the present appears.
Mr Harbord] I would know what you aim at, that I
may see whether you are like to have good success. I
take this Imprisonment of Lord Danby to be occasioned by
his Father. I would do as I would be done by. If a
Child do against his Father's desires, a Parent would prevent it. Here comes the Marquess of Carmarthen to Lord
Nottingham, and tells him his Son will go to Sea, in a hostile
manner, without a Commission, and he is a Pirate by
doing so, and must die for it. He applies to Lord Nottingham; but that is not a good way; he should have applied to the Lords Commissioners of the Admiralty, and
has not done as he should. But it is a hard Case to lay
the stress upon Lord Nottingham; and if I had a Son that
had done as Lord Danby, I would have done so; and therefore, as Garroway proposed, the Complaint against Lord
Danby is not sufficient to put him in Custody. I have no
obligation to Lord Nottingham: I speak my mind, and I
care not two-pence for those who interrupt me, (something
in Passion) be they who they will. I have drawn my
Sword for the King, and I care not for the censure of
any man. I would leave Lord Nottingham out of the Question.
Sir John Thompson.] He that touches the Parliament,
touches the vital part of the Nation. The fault is the
greater; for the man is not fit to be Secretary that carries about him the Legislative Authority to commit in this
manner. The Messenger had been clapped up, if he had
not done it; it was the Secretary did it. Put the Question thus, "That granting the Warrant without Notice, &c.
was a Breach of Privilege, &c."
Mr Howe.] I am satisfied of Harbord's good Intentions;
but if I had a Child, I would have a French Protestant to
govern him, and not a Secretary of State. We are told
of your Member's pirating, but what reason for his taking
up, I know not; but pray right yourselves, and put the
Sir Joseph Tredenham.] I desire, that my Son should
be tutored by an Englishman, and not by a French Protestant. I am entirely for the Question proposed. If it
be a Breach, it ought to be so tender that hereafter it may
not be a Precedent for the loss of Privilege; for that reason, I would not pass it over in silence; the consequence
may be fatal. I was with Lord Nottingham, but the Question is, Whether his Answer was a ground to attach your
Member? But there is a distinction between those that
have the Honour to sit here, and a private Person; I see
him no otherwise criminal for this Warrant, but as Lord
Danby is a Member. But as for the kindness of the Father to his Son, the complaint ought to have been made
unto you. Some Gentlemen are for a Committee to enquire into it, but if you are not at the bottom already, I
would have a Committee. The present Business is to
vindicate your own Privileges. Therefore I am for such a
Sir John Guise.] I am sorry we should have Comparisons betwixt Father and Son, to our detriment. Something of Piracy was spoken under me, &c. but I hope
that is but a conjecture. But if the Vessel was armed,
nobody knew who it was for, or who against. I would
name the Person that granted the Warrant, and refer the
rest to a Committee.
Sir Henry Goodrick.] 'Tis certain that Lord Danby made
his Application to the Duke of Schomberg, and the Office
of Ordnance, and had Ammunition and Provision to scour
upon Privateers; tis a little Vessel, and can fight or not
fight as he will; the General gave directions for it, and he
had Arms, &c. accordingly. I have not seen the Marquess,
but his Mother was alarmed, and was not willing the
whole stay of their Family should run hazard with Privateers, under a pretence to scour about the River. But
such imminent hazard he was like to run of his life, that
they were resolved to take all means to stop him. I hope
this will satisfy the House, and not rest upon him as any
scandal. I aver this to be matter of fact, and I would
only vote this to be a Breach of Privilege, without naming Lord Nottingham. Perhaps he was led by this inducement.
Sir Christopher Musgrave.] I think Goodrick spoke
against the Addition of the Question naming Lord Nottingham, because it appears on your Journal the Warrant
was entered there; and therefore no reason for the Addition, being now no occasion The thing is to assert
your Privileges and Rights, and the Question will run
well without the Addition.
Sir Robert Howard.] The thing is very unhappy, and
much mistaken in the manner of proceeding; but natural Affections must not be used to try tricks with the Government. Natural Affection may be showed, and stop
there. Suppose Lord Nottingham should tell you he did
according to Law, is not that a sufficient excuse? Lord
Nottingham, upon information of a Privy-Counsellor,
granted the Warrant, but still the fact is done, and you
vote it a Breach of Privilege, and that is all.
Mr Smith.] Howard says, "It will justify Lord Nottingham, because he had his Information from a PrivyCounsellor." I would be satisfied whether a Privy Counsellor must not give Information upon Oath, as well as
Sir Walter Yonge.] I am very indifferent whether you
name Lord Nottingham in the Question, but assert the
Cr.me. There is no fault in the Messenger; he knew not
of it; but I am sure Lord Nottingham must know of it.
Granting the Warrant is a thing that must not be passed
by so hastily. You will find few Messengers that will deny
such execution of a Warrant. Pray put it, "That the
granting such a Warrant is a Breach of Privilege."
The Speaker.] The Messenger undoubtedly breaks your
Privilege, as well as the Bailiff that arrests your Member.
Mr Hawles.] The Bailiff, and he that sues out the Writ
against a Member, are upon record, and if you only call
upon the Person who does officiate, your Privilege will
be quickly lost. Whoever issues out the Warrant is more,
or equally, guilty than he that executes it.
Col. Birch.] Let it appear on your Books that you
judge prudently. See the Date of the Warrant.
Sir Joseph Tredenham.] At the same time that Lord
Nottingham received the Information, he made the Warrant, and put it in writing for his Memory. I never knew
it a Breach of Privilege, if a Writ was never executed.
In some Cases, the Statute of Non-claim may be pleaded;
if the Writ be not taken out in legal Time, it is excluded.
If it be necessary, several Precedents may be produced,
not to hinder a man from a just Debt. But Prosecution of
a Writ will hinder a Member from his attendance; but if
it be not served, it is no Breach of Privilege, because it
does not hinder a Member's Attendance.
Resolved, That the granting a Warrant to arrest the Earl of
Danby, a Member of this House, and the taking him into Custody
by virtue of that Warrant, is a Breach of Privilege of this House.
[The Black-Rod came to summon the House to attend his Majesty
in the House of Peers, where his Majesty spoke as follows.]
"My Lords and Gentlemen,
"The time of the year being so far advanced, and there being several Acts yet to be passed for the safety and settlement of the Nation,
I desire you would expedite them as soon as you can, it being
necessary there should shortly be a Recess, both that I may be at
Liberty to pursue the Business of Ireland with all possible Vigour,
and that the Members of both Houses may repair to their several
Counties, to secure the Peace, and to put the Militia into some
"I am very sensible of the Zeal and good Affection which you,
Gentlemen of the House of Commmons, have showed to the Public in
giving those Supplies you have done already; and I do not doubt,
but, from the same Inducements, you will be ready to give more,
as the occasions require; which, I must let you know, will be
sooner than perhaps you may expect, because the necessary expence of this year will much exceed the Sums you have provided
for it. And that you may make the truer Judgment in that matter, I am very willing you should see how all the Moneys have
been hitherto laid out: And to that end, I have commanded those
Accounts to be speedily brought to you; by which you will see
how very little of the Revenue has been applied to any other use
than that of the Navy and the Land-Forces.
"I must remind you of making an effectual and timely Provision
of the Money for the States of Holland; and I doubt not but you
will take care to see a fitting Revenue settled for myself.
"My Lords and Gentlemen,
"I will add no more, but to recommend earnestly to you to avoid
all Occasions of Dispute or Delay, at a time that requires Union
and Vigour in your Counsels, upon which the Preservation of all
that is dear to us doth so much, depend: And I do promise that nothing shall ever be wanting, on my part, which may contribute
Sir Robert Howard.] The King is pleased to leave the
matter to us; and, in the first place, let us return thanks
to the King, &c. and go into a Committee to consider
the Speech, Paragraph by Paragraph.
Sir Thomas Clarges.] We cannot be able, before the
Recess, to make a Judgment of the Arrears of the Money;
by Winter we shall have time to make recompence for
what falls short. Till then we cannot compute what
that will be. The Poll is contingent with the other Taxes;
till then we are not able to give the King any Answer, and
then we may make up what is deficient.
Mr Howe.] I think there is other Business upon our
Hands, as well as the Indemnity. We are not yet off from
Lord Danby's Breach of Privilege: I would neither frighten
the Messenger, nor any body else in the King's Service,
but if you will pass this over, I will say no more.
Col. Birch.] We all desire a Recess, and to me seem
to do a quite contrary thing. The Bill of Oblivion has
held us a Month, and, for ought I know, we may sit till
Michaelmas, and not do it. This is a fine thing to keep you
from all Business. I would dispatch all Bills relating to
Money, and when you have the Account, you will be satisfied in a day or two. 'Tis true some things are contingent in the Poll-Money—I remind you that Money stands
voted in the House for the Dutch. Their Ships came
heartily to our Assistance; therefore take the King's Speech
into Consideration on Monday.
Sir John Thompson.] Let us do our Country Justice,
and the Dutch Justice; they came for their own Preservation, as well as ours, against the great preparation of the
Sir Christopher Musgrave.] The Dutch have no great
War upon their Hands now, but we know who has: We
have the French and Ireland. We shall comply amply
with the King, if we go upon what is before us; and tomorrow we may go upon the Excise. If we go on upon
the Accounts, we shall have no hopes of a Recess; therefore go to-morrow upon the Excise.
Mr Howe.] I am willing to go as soon as possible upon
Money. I am sensible of the service the Dutch have
done; many an honourable Gentleman has done you great
service, and yet brings you no Bills of Account for it. I
hope the King will give us satisfaction in the Irish Affairs,
and save you the labour of particular Accounts. If the
Dutch can fit out more Ships than they have already, they
may do it in Money. Upon the whole, I am ready to give
Money when it is requisite; but you may see the Accounts mentioned.
Sir Thomas Clarges.] In our Aids to the King, we have not
limited one thing nor another. We hoped that 200,000l.
had been paid off of what we had granted, to the Dutch,
and the rest supplied. I cannot see how more Money can
be expended before we meet again; and in February next,
is the last Payment of the Subsidy, and we may consider
betwixt this and then. Here in the Poll-Money, and the
Revenue, altogether, are three Millions betwixt this
and February—There is no absolute need of falling upon
the Revenue, to settle it; till the Book of Rates be perfected, we cannot settle the Revenue. Here is the Excise—And I know not how to put the Wheels faster upon
a run than they are.
[Thanks were voted to his Majesty for his gracious Speech.]
[June 29, Omitted.]