Debates in 1668: May

Friday, May 1.

[A Proviso was offered to the Bill for raising 310,000l. by an-imposition on Wines, and other Liquors, viz. for fixing a part of the revenue arising by subsidy of Tonnage and Poundage, for setting out a fleet every year.]

Sir Thomas Clifford.] Laws are certainly either shackles to the subject, or diminish the Prerogative: All Laws we make cut betwixt these two.

Mr Coventry.] Laws are indications of times, as swearing, drinking, or any other vice; and why should a King that has done more at sea, and loves it better than any King ever before him, be curbed and restrained in his revenue? It does not become us—By the same reason we may offer it to all the rest of his revenue—Some years, in the late Duke of Buckingham's time, the charge of the navy was not above 20,000l. a year.

Sir Thomas Littleton.] The Proviso is not a perpetual one for a temporary Bill.

Sir John Duncombe.] It will disorder the course of the Exchequer, that no man will know what to do, nor with what safety to act in the greatest emergencies of State— The King's officers will not know how to advise him.

Sir Thomas Littleton.] It will be a less distrust to make it in one Act than in two several ones—There was an Act intended to appropriate all the several parts of the King's revenue—This Proviso, being to appropriate one part, is the most modest that can be.

Sir William Coventry replies,] That Act of Appropriation was when the prospect of all the Crown revenue was before you—It is no wonder that the Customs should be anticipated; in the Plague, and the War, there was little came in, together with the great defalcation of the chimneys—It was more cheap for the King to remove, than to stay in a place—That remove, in the Plague, was of great expence to the King, which made the Customs, with others of his revenues, be anticipated—So that for a good while hence, you cannot have the fruits of them—At present his case is so, that all his revenue is anticipated—This Proviso will break the King's whole credit—The King cannot long subsist without your aid; therefore, by this Proviso, make him not less able to subsist than he is already.

Sir Robert Howard.] Believes his Majesty's revenue managed with all prudence; and would not have a Prince confined in his methods—He is always charmed with the decency of any thing—But when was the King's revenue sunk? It was in the midst of our giving money—Had the Prizes been made selony to embezzle them; had they been made public money, who durst have converted them to private uses?—The neglect of this has been of so fatal consequence, that it must alarm us for the future—No immodesty in applying such a sum out of the Customs as may be for this use—If the King's condition be so wanting, as not to afford 20,000l. per ann. must the seas be unguarded?—Leave not this way; secure this first, and consider other ways for the future.

Mr Milward.] Has his Majesty rescued any malefactor from you?—Have not your proceedings been with his Majesty's confidence in us?—Shall we so distrust him by such a proceeding as this Proviso?

Mr Seymour.] The Proviso appropriates part of the Customs to the guard of the sea, which ought to be the whole by the Statute of the 13th of Henry III.—The thing, it seems, is fit, but not to be done by us—It is not foreign, but natural to this Bill; and because it was formerly omitted, not one penny of the Customs has been applied to the late war; and is it not natural that what has been done may be done again?

Colonel Birch.] Believes it may be true that the Customs have not been applied to the use, but finds the 2,000,743l. spent, in the four first years the King came in, in ships and stores, the King then overgoing himself 600,000l. in his customs; by thus doing, when you see what part has not been employed, and what anticipations, then it is proper to consider what has been misapplied.

Sir Walter Yonge.] Possibly the sum (Birch) mentions was not employed for the use it was pretended; for he does not know at that time above twelve ships abroad —Does not believe the Kingdom can be put to such exigency as is mentioned.

Sir Thomas Meres.] The Laws about the Customs are to the effect of this Proviso—When we meet again, money, he fears, will be called for still, upon the pretence of the Navy; by passing this Proviso, we provide for that—Where anticipations are upon good considerations, he would have them allowed; but affirms, that he that gives his negative to this, gives his affirmative for the raising of 300,000l. more.

[The Proviso passed in the Negative, 134 to 93.]

Saturday, May 2.

[Debate on a Petition from the East India Company, in regard to Skinner (fn. 1).]

Mr Vaughan.] Moves to consider the business of Skinner, concerning the East India Company, wherein the Lords have passed a judgment of 5000l. to be raised upon that Company—Several Members of this House being of that Company, it will extend to their persons, which being done in Parliament-time, is a high breach of Privilege, and deserves your serious consideration—The persons concerned showed him their Petition, for advice in it; and the Sollicitor, with other persons, have been examined in the House of Lords concerning Mr Vaughan, who being a Member of Parliament, he remits it also to the consideration of the House—The business of the Members is about the nature of Copartners.

Sir William Thompson.] Affirmed the order to be served upon Sir Samuel Barnardiston, Governor of the Company.

The Speaker.] Complaint was made of an Original Plea brought into the House of Lords; the Lords did over-rule the Plea—It is under Consideration.

Sir Thomas Meres.] Queries the Privilege of any Member that is of any of the companies of London; if they have Privilege by virtue of him, all the companies of London would have a Parliament-man of them.

Sir Robert Atkins.] The stock of the Company is in distinct shares; they have not common stock; so that what levies are made upon the Company, must be upon every one of them personally—Particular and private persons must, at their peril, take notice of a Member of Parliament, which Skinner ought to have done.

Mr Vaughan.] Moves that it may be voted a breach of Privilege in Skinner—He has heard that in general it was said at the Lords Bar, that Members of the House of Commons were concerned in this Company, but not that they were named.

Mr Prynne.] Though they were named at the Lords Bar, if they were not told they were Members, no breach of Privilege is allowed—The case of the East India Company is in autre droit, and no Privilege.

Mr Vaughan.] This argument of (Prynne's) is not the case; for this charge must fall upon the persons, your Members, particular estates.

Serjeant Maynard.] In corporation concernments, no personal Privilege; the body of that is invisible, and so no personal Privilege—Corporations are generally either agencies or patiencies, and where no subjecta materia is to work upon, there is no Privilege, quatenus a Member of a Corporation—That is no matter of record, a Member of Parliament is—The Judges opinion to the Lords was, that Skinner is relievable by the Courts in Westminster for his ship and goods, but the taking away his house and island in the kingdom of Jambee (fn. 2), and dispossessing him of them, is not—The ship and goods belonging to his person, and so relievable at Law in the Courts at Westminster—But the Lords have passed judgment upon the whole matter.

Mr Vaughan.] When the right moves with the person, Privilege attends it; but where right is local, as in France, &c. it is otherwise—Jurisdiction does ever follow dominion—Two absolute dominions cannot be of of the same thing—The King of England cannot have a plenary jurisdiction where the King of France has one —No Court under the King can have jurisdiction where the King has none himself, and all Causes are cognizable there—Jurisdiction of the person of his subject the King can have in a foreign place, and no otherwise. 13 R. II. Sir Thomas Coggan's Case—Coram rege & concilio anciently, not coram baronibus—The peace of the King of England cannot be broken in a foreign country where he has no power; but if the King's Governor be there, there is a jurisdiction—Upon the whole matter, the Lords having taken cognizance of a case originally, and given damages, it being a personal case, and in an island where the King hath no jurisdiction (which "of damages" is the proper business of a jury) is a breach of Privilege, and liberty of the subject.

Sir John Northcote.] Coggan's case was for forcing the Abbot of Bridgwater to give a bond—The Lords took cognizance of the case, but afterwards transmitted it to the Chancery.

Mr Prynne.] Thinks that the Lords have clear jurisdiction in both these cases, and not the Courts of Westminster —Always at the opening of Parliaments, Petitions were received by the Lords, and all grievances, both foreign and at home.

Treason committed beyond sea, till 25 H. VIII. was not tryable at Westminster—Intra quatuor maria is the kingdom of England only—3 Ed. I. Skipwith, at Wittenberg, killed the King of the Romans, and was outlawed here; but upon complaint that the crime was done in Germany, the outlawry was reversed—It was a device in King James's time, the bringing an action in Japan in Cheapside, and so of other places—A bargain was made at St Malo's, and an appeal was made to the Lords about it; but they laid it aside for want of jurisdiction— The Lords have this jurisdiction, and no Court else— The Lords, in cases of Meum and Tuum, refer things to the Common Law—All things were referred to the tryers of Petitions, and so were sent to the several Courts they belonged to, for remedy; but where no remedy could be had by the Courts, they were reported to Parliament for remedy—One called the Queen of Bohemia, Goodwife Palsgrave; the person was fined by the Lords, and sentenced to ride with his face to the horse's tail. (fn. 3)

Sir Robert Howard.] Damages were never given for land recovered, but the land itself—It is no argument that because the Lords have fined in some things, they may do it in every thing—The Lords may be so raised in point of their judicature, that at last all causes will be brought originally, if you suffer this.

Mr Sollicitor Finch.] Let the cause be relievable in any Court, either at Westminster, or the Court of Admiralty, but not originally at the Lords Bar; because, at the other Courts, the cause has all its concoctions, and comes thither for revision, by writ of error; it can have no revision from thence, but by a miracle, the legislative way—The Lords cannot create a power—Durum fuit quod non habuit remedium, in case of dower, before the Statute of Westminster, but by legislative way—God forbid there should be any case, but the Lawyers may tell a remedy for, either in the Courts of Westminster, or legislatively! Believe it, the Lords have no power to give remedy where the Law gives none, unless the Commons have a share in that remedy—The House of Lords is, without doubt, an immemorial Court of Judicature; but we have settled the Lords in many powers—But if the King sends it not to them by writ of error, nor we send it by way of grievance, what will become of the subject, when the first week must produce the Petition, the second, Audience, and the third, Judgment?—All Proceedings, Plea, and Answer, ought to be in Latin in the House of Lords, and sent down to the Courts at Westminster for a Jury, and returned thither again for Judgment—All Judgment is entered thus, Ideo consideratum per Dominum regem; and yet the Plea from them, and not originally from the King, remains to be done.

If you demand a Conference about their jurisdiction, they will not do it infallibly, and then, how can you have remedy that way? But to make our approaches in the business, does think us much in the right, as the business is a speculation, and in prospect; but knows not how to advise to bring it into practice.

Sir Edward Thurland.] 8 Edward I. The Lords are bound by Magna Charta, as well as any other Courts— Per sacramentum suum is by Jury, and in these proceedings of the Lords none of that is done—The Lords give damages; that is expressly against it, and it ought to be by Jury—The Lords, in some cases, may fine, but here are damages given—The Jury may be attainted for damages, but from the Lords no appeal or remedy— Would have some healing way proposed; but yet to assert our Liberties, by declaring that the Lords have no power in this case originally.

Mr Waller.] Does not know how long the Lords have had the title of Supreme Court of Justice—We judge with them—They sent us down a Bill to judge the illegitimacy of Lady Roos's (fn. 4) Children, the last Session—We judge with them in all legislative Causes, therefore they are not supreme, unless appeal be made to them as to Philip waking, and Philip sleeping.

Objection.] Whether a Jurisdiction, or not a Jurisdiction, is the question; for where the Lords have a power to judge of the principal, they have of the accessary, so the accessary part of the cause, as the nature of the affidavits, and place they were taken in, is not enquirable by us.

[A Committee was appointed to consider of the whole matter, and to bring in the Votes altered in the afternoon.]

[In the Afternoon. The same Debate continued.]

The Speaker.] Nothing can cut a diamond but a diamond—The Judges cannot in Westminster-hall declare what is an Act, and what is not, or whether the Lords and Commons assembled, and the King's confirming an Act of theirs, with the Lords consent, be not a Law— There are only two Acts of the Convention not yet confirmed; one the Act for the Ministry, and the other occasionally spoken of in the title of the Bill of Wines —A Wife cannot be examined in any case against her Husband, but where it is particularly enacted.

Sir Robert Howard.] Reports from the Committee (appointed in the morning) 1. That the Lords House taking cognizance of the Petition of Skinner, and over-ruling the Plea of the Governor and Company, originally, is not according to the Law of the land in the matter set forth in the Petition.

2. That the Lords taking cognizance of the island, and giving damages thereupon, is not warrantable by the Laws of the land.

3. That Skinner, by commencing and prosecuting suit in the Lords House, and procuring judgment against the Company, and the Governor, being a Member of this House, and several Members of this House being parties concerned therein, is a breach of Privilege.

Sir Robert Howard.] The condition of Privilege of this House is not taken off by the convenience or inconvenience of the thing; if it were, some body must be judge over us—How dangerous that is, I leave you to judge.

Mr Waller.] A man is robbed, and sues the Hundred; shall a Parliament-man be exempted from paying his share?

Mr Vaughan.] If a Factor in the Indies had beaten or killed an hundred there, what is that to a Member here, and the Governor of that Company?—As if my man should beat a man in Cornwall, and I must be answerable for him, who am here.

Mr Waller.] The Speaker of the Lords cannot deliver the Report ore tenus to the Lords; so it is most proper to deliver it in paper—If it be delivered ill, it is to our disadvantage, and he cannot possibly deliver it in verbis —But rather let them have the Votes than nothing—I would have Asperitatem rei mitigated with Lenitate verborum.

[The two first Votes of the Report were ordered to be delivered, in a Message, at the Lords Bar, with the reasons for enforcing them.]

[These proceedings, in regard to Skinner and the East India Company, occasioned a remarkable quarrol between the two Houses; and, in order to reconcile them, the King recommended to them to strike out all proceedings relating thereto from their Journals; which was done accordingly: And this is the reason that this Debate is not mentioned in the printed Journals. But the proceedings are still legible in the original Journals, whereby it appears that Skinner was this day ordered into custody, and the Debate adjourned till next morning.]

Sir Thomas Lee.] Moves that Colonel Birch may be expelled the House, for adding an imposition upon a sort of people not mentioned in the Act (upon Wines) after it passed. (fn. 5)

Mr Waller.] Motions of this nature should not be per saltum, but per gradum—Birch ought first to explain.

[Col. Birch was ordered to carry up the Bill to the Lords.]

[The House sat May 4, 5, 6, 7, 8, 9, and then, according to his Majesty's pleasure, adjourned to Aug. 11.

Aug. 11.] The House met, and adjourned to Nov. 10.

Nov. 10.] They met, and adjourned to March 1.

March 1.] They met, and were prorogued by his Majesty to Oct. 19, 1669.

Oct. 19, 1669.] The House met, when the King, in a short Speech, "desired them to consider his debts, and mentioned an Union with Scotland, &c." but no Debate is taken notice of, till