Sources of English Constitutional History: Chapter 116

116. PROCEEDINGS IN PARLIAMENT (1668-81)

(A) On Skinner v. The East India Company (1668-70)[1]

To the honourable the commons of England in parliament assembled: The humble petition of the governor and company of the Merchants of London Trading to the East Indies humbly showeth that Thomas Skinner lately exhibited a petition to the right honourable the lords spiritual and temporal in parliament assembled against your petitioners ... for injuries pretended to be done by your petitioners' factors in the East Indies ...; that, though the petitioners did humbly tender a plea to their lordships for that the petition was in nature of an original complaint concerning commoners only and not brought to their lordships by writ of error ... or any way of appeal, and that the matters therein were relievable in the courts of Westminster Hall ... , yet their lordships have been pleased, not only to give a hearing to all the matters in the said petition contained, but have denied to grant the petitioners a commission, or so much as time to send for their witnesses now inhabiting upon the place where the injuries were pretended to be done, and without whose testimony it was impossible for the petitioners to make their defence; that, upon the said hearing, their lordships were further pleased to appoint a committee to assess damages against your petitioners, which committee is now proceeding thereon accordingly, whereby several members of this honourable house who are of the said company as well as other your petitioners may be highly detrimented. All which proceedings, as your humble petitioners humbly submit to your honourable judgments, are against the laws and statutes of this nation and custom of parliament. In tender consideration whereof, and forasmuch as these unusual and extraordinary proceedings of their lordships are not only grievous to your petitioners at present, but may also be a precedent of ill consequence to all the commons of England hereafter; and forasmuch as your petitioners have no way of relief in this case otherwise than by making their humble addresses to this honourable house: your petitioners do therefore most humbly pray that your honours will be pleased to take the premises into your grave considerations and to interpose with their lordships for your petitioners' relief therein, in such way and manner as to your great wisdoms shall seem meet....

Howell, State Trials, VI, 721 f.

[7 May 1668.] ... The house [of lords] after this took into consideration the two previous votes reported from the committee for privileges, which being read and after debate thereof, it was resolved upon the question that the house of commons' entertaining the scandalous petition of the East India Company against the lords' house of parliament and their proceedings, examinations, and votes thereupon had and made are a breach of the privileges of the house of peers, and contrary to the fair correspondency which ought to be between the two houses of parliament, and unexampled in former times. Then the second vote was read.... Upon this it was resolved upon the question that the house of lords' taking cognizance of the cause of Thomas Skinner, merchant — a person highly oppressed and injured in East India by the governor and company of merchants of London trading thither — and overruling the plea of the said company and adjudging 5000 damages thereupon against the said governor and company is agreeable to the laws of the land and well warranted by the law and custom of parliament and justified by many parliamentary precedents, ancient and modern....

Reports of Historical MSS. Commission, VIII, App., pt. 1, 172 f.

[2 May 1668.] Sir Robert Howard reports from the committee, to whom it was referred to consider of the whole matter of the debate upon the resolves returned from the committee to which the petition of the Merchants of London Trading to the East Indies was committed, and to bring in the votes altered and drawn up according to the debate and sense of the house, that the committee had drawn up the resolves accordingly; which he read and after delivered the same in at the clerk's table. And the votes were twice read and, upon the question, severally agreed; which are as followeth, viz.: —

That the lords' taking cognizance of and their proceeding upon the matter set forth and contained in the petition of Thomas Skinner, merchant, against the governor and company of Merchants of London Trading to the East Indies ... , and their lordships' overruling the plea of the said governor and company ... , being a common plea, is not agreeable to the laws of the land and tending to deprive the subject of his right, ease, and benefit due to him by the said laws.... That Thomas Skinner, merchant, in commencing and prosecuting a suit by petition in the house of lords against the company of Merchants Trading to the East Indies, wherein several members of this house are parties concerned with the said company in their particular interests and estates, and in procuring judgment therein ... , is a breach of the privilege of this house....

[9 May 1668.] Resolved, etc., that whosoever shall be aiding or assisting in putting the order or sentence of the house of lords in the case of Thomas Skinner against the East India Company in execution shall be deemed a betrayer of the rights and liberties of the commons of England and an infringer of the privileges of this house....

[4 December 1669.] ... The house of commons, being informed that Sir Samuel Bernardiston, a commoner of England, has been called before the house of lords and hath had a judgment passed upon him and a fine imposed ... , resolved, etc., that a conference be desired of the lords upon the matter aforesaid ... and also upon the proceedings concerning Thomas Skinner and the East India Company. Resolved, etc., that a committee be appointed to prepare and draw up reasons to be insisted upon at the conference to be had with the lords touching the matter aforesaid....

[8 December, 1669.] The house then resumed the consideration of the report of Sir Robert Howard of the heads and proposals brought in from the committee appointed to draw up reasons to be insisted on at the conference to be had with the lords.... The first head was twice read and, with the addition of the word "of," upon the question agreed to....[2] The fifth proposition was read twice and upon the question agreed.

1. That it is an inherent right of every commoner of England to prepare and present petitions to the house of commons in case of grievance, and of the house of commons to receive the same.

2. That it is the undoubted right and privilege of the house of commons to judge and determine touching the nature and matter of such petitions, how far they are fit or unfit to be received.

3. That no court whatsoever hath power to judge or censure any petition prepared for, or presented to, and received by the house of commons, unless transmitted from thence or the matter is complained of by them.

4. That, whereas a petition by the governor and company of Merchants Trading to the East Indies was presented to the house of commons by Sir Samuel Bernardiston and others complaining of grievance therein, which the lords have censured as a scandalous paper or libel, the said censure and proceedings of the lords against the said Sir Samuel Bernardiston are contrary to and in subversion of the rights and privileges of the house of commons, and liberties of the commons of England.

5. That the continuance upon record of the judgment given by the lords and complained of by the house of commons in the last session of this parliament, in the case of Thomas Skinner and the East India Company, is prejudicial to the rights of the commons of England....

Hatsell, Precedents, III, 184-203.

[22 February 1670.] ... Resolved that an entry be made in the journal of this house of his majesty's gracious speech, which is as followeth, vis.: —

"My lords and gentlemen: I did very earnestly recommend to you the other day that you would not suffer any differences between yourselves to be revived; and I think it of so great importance that I have sent for you again upon the said subject. I remember very well that the case of Skinner was first sent by me to the lords. I have, therefore, thought myself concerned to offer to you what I judge the best and safest way to put an end to the difference; and, indeed, I can find no other. I will myself give present order to raze all records and entries in this matter both in the council books and in the exchequer; and do desire you to do the like in both houses, that no memory may remain of this dispute between you. And then, I hope, all future apprehensions will be secured."

Resolved that, in obedience to his majesty's command in his speech, a razure or vacat be made in the journals of this house of all the matters therein contained relating to the business between the East India Company and Skinner. Which was accordingly done in the house....

Journals of the Commons, IX, 126.

(B) On the Right of the Lords to Amend Money Bills (1671)

... Mr. Attorney General reports [to the commons] the conference had with the lords. Resolved, etc., that the lords' reasons and the answer of this house be entered in the journal of this house; which are as followeth, viz.: —

Thursday, April 20. This conference was desired by their lordships upon the subject matter of the last conference, concerning the bill for impositions on merchandise, etc., wherein the commons communicated to the lords, as their resolution, that there is a fundamental right in that house alone in bills of rates and impositions on merchandise as to the matter, the measure, and the time. And, though their lordships had neither reason nor precedent offered by the commons to back that resolution, but were told that this was a right so fundamentally settled in the commons that they could not give reasons for it ... , yet the lords in parliament, upon full consideration thereof ... , are come to this resolution ...: that the power exercised by the house of peers, in making the amendments and abatements in the bill entitled An Act for an Additional Imposition on Several Foreign Commodities ... , both as to the matter, measure, and time concerning the rates and impositions on merchandise, is a fundamental, inherent, and undoubted right of the house of peers; from which they cannot depart.

Reasons, etc. The great happiness of the government of this kingdom is that nothing can be done in order to the legislature but what is considered by both houses before the king's sanction be given unto it; and the greatest security to all the subjects of this kingdom is that the houses, by their constitution, do not only give assistance but are mutual checks to each other.

Secondly, consult the writs of summons to parliament, and you will find the lords are excluded from none of the great and arduous affairs of the kingdom and Church of England, but are called to treat and give their counsel upon them all without exception.

Thirdly, we find no footsteps in record or history for this new claim of the house of commons. We would see that charter or contract produced, by which the lords divested themselves of this right and appropriated it to the commons with an exclusion of themselves. Till then we cannot consent to shake or remove foundations, in the laying whereof it will not be denied that the lords and grandees of the kingdom had the greatest hand.

Fourthly, if this right should be denied, the lords have not a negative voice allowed them in bills of this nature. For, if the lords, who have the power of treating, advising, giving counsel, and applying remedies, cannot amend, abate, or refuse a bill in part, by what consequence of reason can they enjoy a liberty to reject the whole? When the commons shall think fit to question it, they may pretend the same grounds for it.

Fifthly, in any case of judicature — which is undoubtedly and indisputably the peculiar right and privilege of the house of lords — if their lordships send down a bill to the commons for giving judgment in a legislative way, they allow and acknowledge the same right in the commons, to amend, change, and alter such bills as the lords have exercised in this bill of impositions sent up by the commons.

Sixthly, by this new maxim of the house of commons, a hard and ignoble choice is left to the lords — either to refuse the crown supplies when they are most necessary or to consent to ways and proportions of aid which neither their own judgment or interest nor the good of the government and people can admit.

Seventhly, if positive assertion can introduce a right, what security have the lords that the house of commons shall not in other bills — pretended to be for the general good of the commons, whereof they will conceive themselves the fittest judges — claim the same peculiar privilege ... when they shall judge it necessary or expedient?

Eighthly, and whereas you say this is the only poor thing which you can value yourselves upon to the king, their lordships have commanded us to tell you that they rather desire to increase than anyways to diminish the value and esteem of the house of commons, not only with his majesty, but with the whole kingdom; but they cannot give way that it should be raised by the undervaluing of the house of peers ... , by the denying unto it those just powers which the constitution of this government and the law of the land hath lodged in it for service and benefit of both....[3]

Saturday, 22 April. The commons have desired this conference to preserve a good correspondence with the house of peers.... The commons are not without hopes of giving your lordships full satisfaction in the point in question.... The commons confess that the best rule for deciding questions of right between the two houses is the law and usage of parliament, and that the best evidences of that usage and custom of parliament are the most frequent and authentic precedents. Therefore the commons will first examine the precedents your lordships seem to rely upon; then they will produce those by which their right is asserted; and, in the last place, they will consider the reasons upon which your lordships ground yourselves....[4]

Thus, an uninterrupted possession of this privilege ever since 9 Henry IV, confirmed by a multitude of precedents both before and after, not shaken by one precedent for these three hundred years, is now required to be delivered up, or an end put to all further discourse. Which opinion, if it be adhered to, is — as much as in your lordship lies — to put an end to all further transactions between the houses in matter of money.... Because there appears not to the commons any colour, from the precedents cited by your lordships, why your opinions should be so fixed in this point, we suppose the main defence is in the reasons ... given for it....

1. Your lordships' first reason is from the happiness of the constitution, that the two houses are mutual checks upon each other Answer: So they are still; for your lordships have a negative to the whole. But, on the other side, it would be a double check upon his majesty's affairs if the king may not rely upon the quantum when once his people have given it....

2. Your lordships' reasons drawn from the writ of summons is as little concluding. For, though the writ do not exclude you from any affairs, yet it is only de quibusdam arduis negotiis, and must be understood of such as by course of parliament are proper; else the commons, upon the like ground, may entitle themselves to judicature....

3. Your lordships proceed to demand: "Where is that record or contract in parliament to be found, where the lords appropriate this right to the commons in exclusion of themselves?" Answer: To this rhetorical question the commons pray they may answer by another question, "Where is that record or contract by which the commons submitted that judicature should be appropriated to the lords in exclusion of themselves?" Wherever your lordships find the last record they will show the first endorsed upon the back of the same roll. Truth is, precedents there are where both sides do exercise those several rights; but none how either side came by them.

4. If the lords may deny the whole, why not a part? Else the commons may at last pretend to bar a negative voice. Answer: The king must deny the whole of every bill or pass it; yet this takes not away his negative voice. The lord and commons must accept the whole general pardon or deny it; yet this takes not away their negative....

5. Your lordships say: "Judicature is undoubtedly ours, yet in bills of judicature we allow the commons to amend and alter. Why should not the commons allow us the same privilege in bills of money?" Answer: If contracts were now to be made for privileges, the offer might seem fair. But yet the commons should profit little by it; for your lordships do now industriously avoid all bills of that nature, and choose to do many things by your own power which ought to be done by the legislative....

6. Your lordships say you are put to an ignoble choice, either to refuse the king's supplies when they are most necessary or to consent to such ways and proportions which neither your own judgment nor the good of the government or people can admit. Answer: We pray your lordships to observe that this reason, first, makes your lordships' judgment to be the measure of the welfare of the commons of England; secondly, it gives you power to raise and increase taxes as well as to abate.... But it is a very ignoble choice put upon the king and his people, that either his majesty must demand and the commons give so small an aid as can never be diminished or else run the hazard of your lordships' re-examination of the rates, whose proportions in all taxes, in comparison to what the commonality pay, is very inconsiderable.

7. If positive assertion can introduce right, the lords have no security, but the commons may extend a right as they judge it necessary or expedient. Answer: We hope no assertions or denials, though never so positive, shall give or take away a right; but we rely upon usage on our side, and non-usage on your lordships' part, as the best evidences by which your lordships or we can claim any privilege.

8. Your lordships profess a desire to raise our esteem with his majesty and the whole kingdom, but not by the undervaluation of the house of peers. Answer: We have so great confidence in his majesty's goodness that we assure ourselves nothing can lessen his majesty's esteem of our dutiful affections to him....

It was unanimously resolved that the thanks of the house be returned to Mr. Attorney General for his great pains and care in preparing and drawing up the reasons delivered to the lords in answer to their reasons; which was by him performed to the great satisfaction of this house in vindication of their privilege and [the] just and undoubted right of the commons of England....[5]

Ibid., IX, 239-44.

(C) On the Declaration of Indulgence (1673)[6]

[14 February.] ... Mr. Powle reports from the committee appointed to prepare and draw up a petition and address to his majesty the said petition and address; which he read in his place and, after, delivered the same in at the clerk's table. And the same, being again twice read, is as followeth, viz.: —

Most gracious sovereign We, your majesty's most loyal and faithful subjects, the commons assembled in parliament, do in the first place, as in all duty bound, return your majesty our most humble and hearty thanks for the many gracious promises and assurances, which your majesty hath several times during this present parliament given to us, that your majesty would secure and maintain unto us the true reformed Protestant religion, cur liberties, and properties; which most gracious assurances your majesty hath out of your great goodness been pleased to renew unto us more particularly at the opening of this present session of parliament. And further we crave leave humbly to represent that we have with all duty and expedition taken into our consideration several parts of your majesty's last speech to us, and withal the declaration therein mentioned for indulgence to dissenters, dated the 15th of March last. And we find ourselves bound in duty to inform your majesty that penal statutes in matter ecclesiastical cannot be suspended but by act of parliament. We therefore, the knights, citizens, and burgesses of your majesty's house of commons, do most humbly beseech your majesty that the said laws may have their free course until it shall be otherwise provided for by act of parliament; and that your majesty would graciously be pleased to give such directions herein, that no apprehensions or jealousies may remain in the hearts of your majesty's good and faithful subjects. Resolved, etc., that this house doth agree with the committee in the petition and address by them drawn up to be presented to his majesty....

[24 February.] ... Mr. Secretary Coventry reports and presents in writing from his majesty his answer to the humble petition and address of this house, which ... is as followeth, viz.: —

Charles R. His majesty hath received an address from you, and he hath seriously considered of it, and returneth you this answer: that he is very much troubled that that declaration which he put out for ends so necessary to the quiet of his kingdom, and especially in that conjuncture, should have proved the cause of disquiet in this house of commons and give occasion to the questioning of his power in ecclesiastics; which he finds not done in the reigns of any of his ancestors. He is sure he never had thoughts of using it otherwise than as it hath been entrusted in him — to the peace and establishment of the Church of England and the ease of all his subjects in general. Neither doth he pretend to the right of suspending any laws wherein the properties, rights, or liberties of any of his subjects are concerned, nor to alter anything in the established doctrine or discipline of the Church of England; but his only design in this was to take off the penalties the statutes inflict upon the dissenters, and which he believes, when well considered of, you yourselves would not wish executed according to the rigour and letter of the law. Neither hath he done this with any thought of avoiding or precluding the advice of his parliament; and, if any bill shall be offered him which shall appear more proper to attain the aforesaid ends and secure the peace of the church and kingdom, when tendered in due manner to hirn, he will show how readily he will concur in all ways that shall appear good for the kingdom....

[26 February.] ... Mr. Powle reports ... an answer agreed by the committee ... , which ... is as followeth, viz.: —

Most gracious sovereign: We, your majesty's most humble and loyal subjects, the knights, citizens, and burgesses in this present parliament assembled, do render to your sacred majesty our most dutiful thanks for that, to our unspeakable comfort, your majesty hath been pleased so often to reiterate unto us those gracious promises and assurances of maintaining the religion now established and the liberties and properties of your people. And we do not in the least measure doubt but that your majesty had the same gracious intentions in giving satisfaction to your subjects by your answer to our last petition and address. Yet, upon a serious consideration thereof, we find that the said answer is not sufficient to clear the apprehensions that may justly remain in the minds of your people by your majesty's having claimed a power to suspend penal statutes in matters ecclesiastical, and which your majesty does still seem to assert ... to be entrusted in the crown and never questioned in the reigns of any your ancestors — wherein we humbly conceive your majesty hath been very much misinformed; since no such power was ever claimed or exercised by any of your majesty's predecessors, and, if it should be admitted, might tend to the interrupting of the free course of the laws and altering the legislative power, which hath always been acknowledged to reside in your majesty and your two houses of parliament. We do therefore, with an unanimous consent, become again most humble suitors unto your sacred majesty that you would be pleased to give us a full and satisfactory answer to our said petition and address, and that your majesty would take such effectual order that the proceedings in this matter may not for the future be drawn into consequence or example.

... Resolved, etc., that the whole address be agreed to as it was brought in by the committee....

Ibid., IX, 252, 256, 257.

[8 March.] ... His majesty sitting in his royal throne, adorned with his crown and regal ornaments, commanded the gentleman usher of the black rod to give notice to the house of commons that they attend his majesty presently. The commons being come with their speaker, his majesty made this short speech following: "My lords and gentlemen: ... If there be any scruple remain with you concerning the suspension of penal laws, I here faithfully promise you that what hath been done in that particular shall not for the future be drawn either into consequence or example...."

Next the lord chancellor reported ... that his majesty had the last night, in pursuance of what he then intended and declared this morning concerning the suspension of penal laws not being for the future drawn either into consequence or example, caused the original declaration under the great seal to be cancelled in his presence; whereof himself and several other lords of the council were witnesses....

Journals of the Lords, XII, 549.

(D) On Shirley v. Fagg (1675)[7]

[14 May.] ... Whereas Thomas Shirley, esquire, his majesty's physician in ordinary, hath a cause depending in this house by way of appeal against Sir John Fagg, a member of the house of commons, and by the law and course of parliament ought to have privilege and freedom from arrest: it is ordered by the lords spiritual and temporal in parliament assembled that the said Thomas Shirley be ... privileged and protected accordingly by the authority of this house during the depending of his said cause in this house; and all persons whatsoever are hereby prohibited from arresting or otherwise molesting the said Thomas Shirley upon any pretence whatsoever....

Ibid., XII, 692.

[20 May.] Sir Thomas Lee reports from the committee appointed to draw up reasons to be offered at the conference to be had with the lords upon the privileges of this house ...; which were ... severally agreed to ... as followeth, viz.: —

1. That by the laws and usage of parliament privilege of parliament belongs to every member of the house of commons in all cases except treason, felony, and breach of the peace; which hath often been declared in parliament without any exception of appeals before the lords.

2. That the reason of that privilege is that the members of the house of commons may freely attend the public affairs in that house without disturbance or interruption; which doth extend as well to appeals before the house of peers as to proceedings in other courts.

3. That, by the constant course and usage of parliament, no member of the house of commons can attend the house of lords without the especial leave of that house first obtained, much less be summoned or compelled so to do.

4. If the lords shall proceed to hear and determine any appeal where the party neither can nor ought to attend, such proceedings would be contrary to the rules of justice.

5. That the not determining of an appeal against a member of the house of commons is not a failure of justice, but only a suspension of proceedings in a particular case during the continuance of that parliament, which is but temporary.

6. That, in case it were a failure of justice, it is not to be remedied by the house of lords alone, but it may be by act of parliament....

[3 June.] ... Mr. Vaughan reports that the lord privy seal did manage the conference ... , which Mr. Vaughan did report to the house to the effect following, viz.: —

... The lords in parliament [are the court] where his majesty is highest in his royal estate and where the last resort of judging upon writs of error and appeals in equity, in all causes and over all persons, is undoubtedly fixed and permanently lodged. It is an unexampled usurpation and breach of privilege against the house of peers that their orders or judgments should be disputed or endeavoured to be controlled, or the execution thereof obstructed, by the lower house of parliament, who are no court nor have authority to administer an oath or give any judgment. It is a transcendent invasion on the right and liberty of the subject and against Magna Carta, the Petition of Right, and many other laws, which have provided that no freeman shall be imprisoned or otherwise restrained of his liberty but by due process of law. This tends to the subversion of the government of this kingdom, and to the introducing of arbitrariness and disorder, because it is in nature of an injunction from the lower house who have no authority nor power of judicature over inferior subjects, much less over the king and lords against the orders and judgments of the supreme court....

A debate arising thereupon, resolved, etc., that a conference be desired with the lords upon the subject matter of the last conference....

[4 June.] ... Sir Thomas Lee reports from the committee the reasons agreed to be offered at the conference to be had with the lords ...; which were ... severally agreed and are as followeth, viz.: —

... 'Tis not against the king's dignity for the house of commons to punish by imprisonment a commoner that is guilty of violating their privileges — that being according to the known laws and custom of parliament and the right of their privileges declared by the king's royal predecessors in former parliaments, and by himself in this. But your lordships' claiming to be the supreme court, and that his majesty is highest in his royal estate in the court of judicature there, is a diminution of the dignity of the king who is highest in his royal estate in full parliament.... The commons did not infringe any privileges of the house of peers, but only defend and maintain their own. On the other side, your lordships do highly entrench upon the rights and privileges of the house of commons, denying them to be a court or to have any authority or power of judicature; which, if admitted, will leave them without any authority or power to preserve themselves. As to what your lordships call a transcendent invasion of the rights and liberty of the subject ... , the house of commons presume that your lordships know that neither the Great Charter, the Petition of Right, nor any other laws do take away the law and custom of parliament, or of either house of parliament.... But the commons cannot find, by Magna Carta or by any other law or ancient custom of parliament, that your lordships have any jurisdiction in cases of appeal from courts of equity....

[19 November.] ... Whereas this house hath been informed of several appeals depending in the house of lords from courts of equity, to the great violation of the rights and liberties of the commons of England, it is this day resolved and declared that whosoever shall solicit, plead, or prosecute any appeal against any commoner of England from any court of equity before the house of lords shall be deemed and taken a betrayer of the rights and liberties of the commons of England and shall be proceeded against accordingly.

Resolved, etc., that copies of this resolution and declaration be forthwith publicly affixed upon the door of the lobby of this house and Westminster Hall gate ... , to the end all persons concerned may take notice thereof....

Journals of the Commons, IX, 342 f., 352, 354, 380 f.

[20 November.] ... Whereas this day was appointed for hearing the cause at the bar upon the appeal of Dr. Thomas Shirley against Sir John Fagg ... , it is ordered by the lords spiritual and temporal in parliament assembled that this house will hear the said cause by counsel at the bar on Monday the 22d instant....

The lord Grey of Rolleston acquainted the house that this morning he did see a paper affixed up at Westminster Hall gate tending much to the dishonour of this house and derogatory to its judicature.... Ordered ... that the paper ... , posted up in several places and signed "Will. Goldsborough, Clerk of the House of Commons," against the judicature of the house of peers in cases of appeals from courts of equity is illegal, unparliamentary, and tending to the dissolution of the government....

Journals of the Lords, XIII, 32 f.

(E) On the Right of the Lords to Amend Money Bills (1678)

... Mr. Solicitor General reports from the committee, to whom it was, amongst other things, referred to prepare and draw up a state[ment] of the rights of the commons in granting of money, a vote agreed by the committee; which he read in his place, and afterwards delivered the same in at the clerk's table, where the same was read and upon the question agreed, and is as followeth, viz.: —

Resolved, etc., that all aids and supplies ... to his majesty in parliament are the sole gift of the commons, and all bills for the granting of any such aids and supplies ought to begin with the commons; and that it is the undoubted and sole right of the commons to direct, limit, and appoint in such bills the ends, purposes, considerations, conditions, limitations, and qualifications of such grants, which ought not to be changed or altered by the house of lords.

Journals of the Commons, IX, 509.

(F) On the Impeachment of Danby (1679)[8]

[20 March.] ... Resolved ... that a message be sent to the lords to put them in mind of the impeachment of high treason exhibited against Thomas, earl of Danby, in the name of the commons of England, and to desire that he may be forthwith committed to safe custody.

Resolved, etc., that it be referred to the committee of secrecy to draw up further articles against Thomas, earl of Danby....

[7 May.] ... A message from the lords by Mr. Justice Atkins and Mr. Justice Dolben: —

Mr. Speaker, we are commanded by the lords to acquaint this house with an order yesterday made concerning the earl of Danby, viz.: Whereas the earl of Danby hath adhered to the plea of his pardon and prayed to be heard by his counsel to make good the validity of his pardon; and whereas the commons have, by their speaker in proper person, demanded judgment against the said earl, as conceiving his pardon to be illegal and void: it is ordered by the lords spiritual and temporal in parliament assembled that Saturday next be appointed for hearing of the earl of Danby to make good his said plea. And we are further to acquaint you with the resolve also yesterday passed, viz.: Resolved by the lords spiritual and temporal in parliament assembled that the five lords in the Tower ...[9] shall be brought to their trials upon the impeachment against them this day seven-night....

[22 May.] ... Ordered that a committee be appointed to inspect the journals of this house and take an account thereout of all proceedings relating, as well to the impeachment against the earl of Danby, as the impeachment against the other lords in the Tower....

[23 May.] ... Mr. Papillon reports from the committee, appointed to inspect the journals of this house, a report agreed upon by the committee ... of all the proceedings relating, as well to the impeachment and bill against the earl of Danby, as to the impeachments against the other lords in the Tower; which he read to the house.

Ordered that Sir Stephen Fox do forthwith produce to this house his ledger book, cash book, and journal, and his receipts for money by him paid for secret service....

[24 May.] ... Sir Francis Winnington reports from the committee appointed to draw up further articles and prepare evidence against the earl of Danby several informations given to the said committee of moneys paid for secret service to the members of the last parliament....[10]

Ibid., IX, 572, 614, 629, 631.

[23 May.] ... Sir Stephen Fox: I came but just now from my lodgings by water, and I was told of the order.... I know not whether I can do what you command me in any time. I have paid much money for secret service, but for these four years I have paid none. I have paid it as the king's bounty and under such other titles....

Mr. Sacheverell: I desire to know of him, during the time he paid money for secret service, whether he cannot remember a name. If he cannot, I can.

The speaker: Who did you pay money to, of the members of the last parliament, for secret service?

Sir Stephen Fox: These are hard circumstances I am under — either to disobey the house or to divulge a secret by the king's command. I can name so few persons that it will give no satisfaction to the house.... Upon my memory, I cannot tell who I paid money to for secret service and who upon other accounts. I humbly pray that I may not be put to answer.

Sir Robert Peyton: Fox has receipts from the persons, and those will justify him. Possibly some of the persons may be in his eye....[11]

Mr. Seymour: ... I would have Fox answer you whether I received any money before I was speaker. In the presence of God I speak it, I never directly nor indirectly disposed of any money for secret service. I told the king that my fortune was not sufficient for that service [of the speakership], and I was paid the money out of the exchequer. But that was so troublesome I desired it might be paid another way; and it was the only favour Lord Danby ever did me, to let me receive it out of the money appointed for secret service....

[24 May.] ... Sir Francis Winnington ...: I have brought every particular information, and you shall see whether your members have any wrong. There was 20,000 per annum paid quarterly by the commissioners of excise for secret service to members, etc....; whereof no account was given to the exchequer but for secret service.... Though Sir Stephen Fox has taken a great deal of matter out of my hands, yet there are some more than he has acquainted you with who have received money: viz., to Sir Richard Wiseman and one Knight ... , each of them 400 per annum; Mr. Roberts, at one or two payments, 500, and Mr. Price 400. Sir John Fowell, at twice, had 500 of Fox.... The book of 20,000 was increased by Danby in his time, for formerly it was not above 12,000 per annum for pensions.... Before the parliament did sit, there were greater sums paid than at other times. The paper the committee took, etc., mentions other persons....

Sir Thomas Clarges: I move that persons who have received any money the last parliament may be incapacitated of any trust in the government and refund what they have had.

Sir Francis Winnington: When such a report is brought in, it must be read at the table and I am to be discharged of the papers, and then I shall make motion for your service.... Another business has intervened.... I move therefore that there may be some way or method to know the bottom of this, whether you will call witnesses to the bar or to the committee. Apply your remedy when you know the disease. I do say that, if any man takes money to sell his country, I would use the utmost power of punishment, that parliaments may not be lost....

Colonel Titus: It is no crime at all to have money nor pension, but to have it for an ill use. Therefore, let every member concerned be heard in his place. He may justify himself....

Colonel Whitley: I am one under that unfortunate list of pensions. I was one of those ... for the farming of the excise, etc.... I had in all 900 which I received at several times. This is the true state of the case. If I did betray my country, etc., I am not only fit to be turned out of the house, but out of the world. I have had money a long time due to me, and can get none of it. Be pleased to examine what relates to me as publicly as you please....

Mr. Bennet: Pray, let us speak with a bounty-man.

Sir Philip Howard: If my case be distinct from others, I hope I shall be so judged. I am one of those to be considered under the head of farmers of the excise, and I desire I may come under the head of those who came in upon a valuable consideration.

Mr. Harbord: This may well admit of a distinction, but not till you have farther heard the matter. If you find that the king's bounty went to one sort of parliament-men and not to another, you may guess by that; for I could in the last parliament have told you how the question would go. If a pensioner went not well, slash! — he was put out of his pension....

Grey, Debates of the Commons, VII, 316-31.

[26 May.] ... Mr. Sacheverell reports from the committee appointed to draw up reasons why this house cannot proceed to the trial of the lords before judgment given upon the earl of Danby's plea of his pardon ... that the committee had agreed upon an answer to be returned to the last message of the house of peers ... , which he read in his place and afterwards delivered the same in at the clerk's table, where the same were again read and, with some amendments made at the table ... , agreed; and are as followeth, viz.: —

... The commons therefore are obliged not to proceed to the trial of any of the five lords ... , but to adhere to their former vote; and for their so doing ... do offer you these reasons following: — (1) Because your lordships have received the earl of Danby's plea of his pardon with a very long and unusual protestation, wherein he hath aspersed his majesty by false suggestions; as if his majesty had commanded or countenanced the crimes he stands charged with.... (2) The setting up a pardon to be a bar of an impeachment defeats the whole use and effect of impeachments. For, should this point be admitted ... , it would totally discourage the exhibiting any for the future; whereby the chief institution for the preservation of the government would be destroyed and, consequently, the government itself. And therefore the case of the said earl, which in consequence concerns all impeachments, ought to be determined before that of the said five lords, which is but their particular case.... The house of commons, an excellent conserver of liberty, is solely entrusted with the first propositions concerning the levies of moneys and the impeaching of those who for their own ends — though countenanced by any surreptitiously gotten command of the king — have violated that law which he is bound, when he knows it, to protect.... And the lords, being entrusted with the judicatory power, are an excellent screen and bank between the prince and the people, to assist each against any encroachments of the other and by just judgment to preserve that law which ought to be the rule of every one of the three. Therefore, the power legally placed in both houses is more than sufficient to preserve and restrain the power of tyranny. (3) Until the commons of England have right done them against this plea of pardon, they may justly apprehend that the whole justice of the kingdom, in the case of the five lords, may be obstructed and defeated by pardons of the like nature....

Journals of the Commons, IX, 631 f.

(G) On the Printing of Votes in the Commons (1681)

[24 March.] ... Sir John Hotham: Mr. Speaker, what I am about to move concerns us all. The last parliament, when you were moved to print your votes, it was for the security of the nation and you found it so. It prevented ill representations of us to the world by false copies of our votes, and none doubted your honour in the care of it. And I am confident that this house will be no more ashamed of their actions than the last was. Printing our votes will be for the honour of the king and the safety of the nation. I am confident, if it had been necessary, you would have had petitions from the parts I come from, that your actions might be made public. As I came hither, everybody almost that I met upon the road cried, "God bless you!" I move, therefore, that your votes may be ordered to be printed with the rest of your proceedings....

Mr. Secretary Jenkins: I beg pardon if I consent not to the motion of printing the votes, etc. Consider the gravity of this assembly. There is no great assembly in Christendom that does it. It is against the gravity of this assembly and it is a sort of appeal to the people. It is against your gravity and I am against it.

Mr. Boscawen: If you had been a privy council, then it were fit what you do should be kept secret; but your journal books are open and copies of your votes in every coffee-house. And if you print them not, half-votes will be dispersed to your prejudice. This printing is like plain Englishmen, who are not ashamed of what they do, and the people you represent will have a true account of what you do. You may prevent publishing what parts of your transactions you will and print the rest.

Mr. Leveson Gower: I find that those who write our votes and transactions and send them all England over are favoured, and I believe that no gentleman in the house will be against printing them but Jenkins. I hope you will not be ashamed of what you do; therefore I am for printing your votes.

Colonel Mildmay: By experience we have found that, when former parliaments have been prorogued or dissolved, they have been sent away with a declaration against them. If our actions be naught, let the world judge of them; if they be good, let them have their virtue. It is fit that all Christendom should have notice of what you do. and posterity of what you have done; and I hope they will do as you do. Therefore I am for printing the votes.

Sir Francis Winnington: Because what has been said by Jenkins is a single opinion, for he says, "Printing is an appeal to the people," I hope the house will take notice that printing our votes is not contrary to law. But pray who sent us hither? The privy council is constituted by the king, but the house of commons is by the choice of the people. I think it not natural nor rational that the people, who sent us hither, should not be informed of our actions. In the Long Parliament it was a trade amongst clerks to write votes, and it was then said by a learned gentleman that it was no offence to inform the people of votes of parliament, etc., and they ought to have notice of them. The Long Parliament were wise in their generation to conceal many things they did from the people, and the clerk who dispersed the votes was sent away and nothing done to him....

Grey, Debates of the Commons, VIII, 292 f.

[24 March.] ... Resolved that the votes and proceedings of this house be printed, and that the care of the printing thereof and the appointment of the printers be committed to Mr. Speaker....

Journals of the Commons, IX, 708.


[1] In 1661 Thomas Skinner, an independent merchant engaged in oriental trade, petitioned the king with regard to various injuries which he alleged he had suffered at the hands of the East India Company. After long delay, in 1666, his case was referred to a committee of the privy council. This body failed to arrange a settlement between the parties; and so, on the king's order, the matter was brought to the attention of the house of lords. The latter, having examined a petition addressed to them by Skinner, awarded him damages. Meanwhile the case had become the subject of political controversy, as may be seen from the following excerpts: (1) the petition of the East India Company to the house of commons; (2) a resolution in this connection by the lords; (3) subsequent proceedings in the commons; (4) the final action taken on the king's command.

[2] Various amendments are made to the other propositions.

[3] Here the lords cite numerous precedents.

[4] Here the commons cite two folio pages of precedents.

[5] While this dispute was still going on, the king prorogued the parliament. Cf. document E, below.

[6] No. 115.

[7] This protracted quarrel between the two houses of parliament began over an appeal in a case of equity brought before the lords by Thomas Shirley against Sir John Fagg, a member of the commons. The original protest of the commons raised the issue of parliamentary privilege only; but, as further appeals of the same sort came to be made, the commons extended their claim of privilege to deny the equitable jurisdiction of the upper house. This latter phase of the dispute, interrupted by the summer prorogation, was revived in November, when the king once more prorogued parliament. Eventually, since the lords persisted in their course, the commons allowed the matter to drop.

[8] At the end of the previous year the earl of Danby, principal minister of Charles II, had been impeached for alleged traitorous designs in his conduct of foreign policy. The king had at once intervened to save his minister by dissolving parliament. The following proceedings took place in the new parliament, which, for the same reason, was dissolved shortly after its prorogation on 27 May.

[9] The peers accused of complicity in the Popish Plot.

[10] In connection with these proceedings the official journal is supplemented from the report of debates made by Anchitell Grey, at that time a member of the house. It should be noted that by the king's secret service money is meant the fund used for building up a political following.

[11] After further discussion, the clerk was ordered to read the names of the members of the previous parliament. Fox then asserted that the speaker, Mr. Seymour, had received from him 1500 at the end of each session, and that twenty-seven other members had been annually paid sums ranging from 200 to 1000.


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