1 the cities of London and Westminster, was read the first time. Mr. Waller. The law favours buildings. If you build with another man's brick or timber, the law gives you damage for it, but not the brick and timber. Again, it is said that these buildings make poverty. We are undone in the country, without building-And yet not build at all. The relief of the poor ruins the nation-By the late Act they are hunted like foxes out of parishes, and whither must they go but where there are houses? We shall shortly have no lands to live upon, to relieve them, the charge of many parishes in the country is so great. Mr. Sawyer. The Act for settlement of the poor, does, indeed, thrust all people out of the country to London. This Bill remedies the matter: by this increase of building, in a while the people will come into such disorder as to destroy the buildings themselves. Mr. Child. Sixty years experience has made it evident, in fact, that rents have increased the more for building houses. London has more inhabitants than before the Fire: the circumference must be subservient to the center. Mr. Jones. If increase of buildings makes the houses in London of better value, it is a great paradox. Where is the demonstration? Is it because rents fall every day? bnt if this bill be so much against law as to give right away, is against it. Sir Nich. Pedley. It is said that the buildings are not a nuisance at common law. In Q. Eliz.'s time, they were judged a nuisance, and in king James's time. Not by statute. But when a thing grows too big and inconvenient, it is a nuisance. The builders have been pardoned by Act, but for the future would prevent it. Resolved, "That this Bill be withdrawn, and that a Committee be appointed to prepare and bring in a new Bill, upon the debates of the house, to restrain the farther increase of building near the cities of London and Westminster, and to remedy the inconveniencies occasioned thereby." Debate on sir John Prettyman's Case: he being a Member and detained Prisoner in the King's Bench.] Sir John Prettyman's Case, he being a member, and detained prisoner in the King's Bench, upon execution, was reported by sir Thomas Meres. Mr. Sawyer. Whether this case be of the nature of privilege, or upon being outlawed before his election, is the question. To the law of parliament the case of privileging belongs. But as to reason, no prescriptions show that ever it was done. Prorogations are of the nature of several parliaments, and privilege commences as if it were a new parliament, 13 Hen. viii. And in Plowden's Commentaries 79, being of the same nature with those cases of judgment and execution in time of prorogation. No injury can, by privilege, be done * Afterwards Sir Josiah. to an innocent person; your subsequent privilege cannot do wrong to another, a third person. Should it do so, the inconveniencies were great. In effect, by allowing privilege in this case, you make privilege of prorogation' equal to privilege of adjournment.' If you deliver a man in execution, it is against what the law has vested the party in, and he loses also all the charges he has been at. There are judgments in the Case-31 Hen. vi. The Speaker* was then taken in execution, in time of prorogation. It was debated and referred to the judges, and reported by them to be according to law of parliament, judged in the house of lords. It was then ruled that the Speaker should not be discharged; and the commons thereupon chose a new Speaker. It may be objected, That this was a judgment given by the lords: but it is answered; the lords were then the proper judges of it, but the judgment was confirmed by the commons. Many cases that may be instanced, were in the time of privilege, when wrong was done by the aggressor. To what purpose has the house, at any time, debated limitation of time of privilege, if out of the time you deliver the party? Martin's case 28 Eliz. There was then a case when a member was taken within 14 days' on a prorogation, which was then the time of privilege. But about 20 days,' upon report of Ferrer's case, it divided the house in opinion, whether a time should be asserted, or not, for privilege, or defined. The first question was, Whether the house would assert a time? It was resolved No; but a convenient time.' The next question was, Whether Martin was taken in that convenient time? Yea.' But whether the party should be punished, because the case was doubtful, was the great objection. 'There is the same reason for the one as the other, that the member might attend the house without disturbance. Before any person sits, he has privilege. The true reason why the person in execution should not be delivered, as the case is stated, is that the party should not be left remedyless. 1 K. James, sir Robert Shirley was in execution in the fleet four days. There was a Habeas Corpus granted to bring him to the bar. It was then declared there should be a bill, for the jailors and sheriff's indemnity. It provides that he may be taken again, after the session is over, after parliainent.' No punishment for procuring such an arrest as that is. Sir John Birkenhead would know whether Prettyman is in execution for a debt owing to any of your members. That may alter something of his case. Mr. Sec. Coventry. In case of a peer's eldest son arrested in execution for debt, if his father should die, and he become a peer, he shall not come out of prison. And will you set up your privileges higher than where privilege is born with a man, and yet he cannot be taken out of execution? Take heed what ye do, * Thorpe. See vol. i. P. 391. Let us to put men upon breaking to be here. formerly) may lose their lands, as well as their Sir Rd. Temple. All the ancient precedents, before the statute of 1st. James, will not be of any great use in this business. Formerly the house had power of punishing the prosecutor that put the party in prison, but had no power to release the party. Thorpe's case was a dis-nesses, (our privileges being longer now than tinction between a debt to the king, and one to the subject, and yet has been over-ruled since. All precedents before 1 k. James, are out of the case. The preamble of the act is general and universal. Sawyer mistakes the case, for by this statute when privilege shall ceasc, the party shall be in execution again, all proceedings remaining as they were before,' and so persons concerned not be put to any new trouble of process. Would have one instance, let a member's taking be when it will, that ever he was detained, the parliament sitting. It is said, the party has an interest in the prisoner; so has the public likewise, and before the party had any, and you will not send a new writ, to chuse another in his stead. The case is of great weight, and he would not subject the keepers of prisons to any action of escape, but believes that persons taken in prorogation have been delivered out. The reason is the same whether the party is attached, the parliament sitting, or not. Col. Strangways. We grant privilege in an adjournment. This case is privilege in prorogation. The privilege continues while he is a parliament-man. Upon delivering him, the parliament sitting, the sheriff is cleared by the statute of 1 k. James. By suffering him to be detained, you deprive a county, or a borough, of a representative. Sir Wm. Coventry. It is a tender argument to speak against the privilege of this house. Parliaments now are of longer continuance than formerly: and therefore it is an argument not to extend them more than formerly. The member's (Prettyman) council quoted no precedents in the case to the committee. But something so applicable from the bar of the 'case of a peer's son' that he thinks we have no reason to extend our privileges more than they do. No man will doubt but that there is such a sleeping of privilege in prorogation, which, if awaked, must have power, not only to stop, but to reverse the course of law, or the next step to it, if it rises. If a member be enlarged by privilege, it is restrained to those cases where, by that privilege, he might be before the statute. You may say, that be may serve the execution again when the parliament is dismissed but can the party catch him? He that took him before was innocent, and he must catch him. It may be he has nothing responsible for the debt, neither goods, nor lands, and nothing but his person to be had, and this privilege is during the whole parliament. What may be the consequence of this? You would have often remedied buying of places in elections; this privilege will be a temptation to do it still, all debts being paid by privilege. This may tend to sending hither the most unfit men in England, and Mr. Swynfin agrees with the latter part of Coventry's speech, That titles and estates may be lost by death of witnesses, when privilege continues long,' and that it may be an invitation to bad men to come into parliament.' So that if any act of compassion to the subject could be made, to suspend privilege in some cases, would be glad of it: but in this case of Prettyman's, believes it a right, and that when a member is chosen, the town and the house have a right to that privilege. It is granted that any member, during sitting, has privilege; but here is the question, Whether a member taken in execution out of privilege has the same right of being released out of prison, as in privilege? If it be allowed, how will it be answered upon an original writ out of time? If you make precedents in one case, you must do it in another. The objection of a pcer's son,' spoken of, is not this case; his father living when he was in execution, he had no title to the peerage, but this man has. The lords cannot make him a new title. The reason of privilege is the public service of the house and place he serves for, But one objection. Privilege is just such a thing as is found by precedent, and we have but one precedent that gives light, and that is Thorpe's case, the Speaker.' If this precedent had been since that statute of 1 k. James, no answer could be given to it; but it was before. But how appears it that there were no more precedents in the case? The reports are short; it appears not plaiuly that such as have been imprisoned were in time of privilege, but clear that they were delivered, the parliament sitting, which then sat not long, and this case before us could not then arise. For as to the proviso in that act to save the officers harmless, it may be out of privilege as well as in. Mr. Sucheverell thinks not this case so different from Thorpe's case as is imagined, nor that of a peer's son so different: a peer serves for himself. If this releasing the person to attend here were to debar a man of his debt, would be against it. If his estate be not capable to make restitution, and he have neither land nor goods, it seems an act of malice to keep him from hence. Sir Thos. Meres. If a man must be detained upon execution, though not mere process, 10, 20, 30 useful members may be taken out, to the destruction of parliaments. Sir Rob. Howard finds that we have nothing to resort unto in this business as a clear prece dent. Mr. Serj. Crook. Did he think that this was 'lex et consuetudo parliamenti,' would not speak against it. He thought this case of Thorpe a settled and quiet case long. He was Speaker, and taken in execution, and a new one was chosen, before the statute of 1 k. James. If once a member taken in execution, were let out, or escaped, he was never to be taken again upon the same execution. It is urged that the kingdom loses a member; you will allow breach of the peace above any privilege of parliament: the keeping the peace, the very being of the kingdom; there is no supersedeas against execution, the very life of the law. Not morando, eundo, redeundo, lex Parliamenti,' being the usage of parliament. In so great a case as this, he doubts himself, in what he delivers, this place being the best school, and must learn here. Before 1 k. James, the person in execution being delivered, the sheriff brought his action against the jailor, and it was a crime and incapacity to take him again. Would not agree with the committee. Col. Titus. It is no argument that you should take away this privilege, because it is inconvenient. Are there not greater conveniences that balance the inconveniences? You may be deprived of many members of parliament. Men may be clapped up that are against a bill to be presented here. Better far a mischief on particulars, than an inconvenience in general. Resolved, on a division 143 to 67, "That sir John Prettyman be delivered out of the custody of the Marshal of the King's Bench, by sending the Serjeant at Arms attending on this house, with the mace, to bring him to the service of this house." : Dr. Burnet's Examination respecting the Duke of Lauderdale, reported.] April 21. Mr. Powle reports Dr. Burnet's* Examination at the Committee appointed for the Address about the Duke of Lauderderdale's removal viz. “On the 27th *** last, Dr. Burnet was, by Mr. Secretary Coventry, ordered, in the king's name, to go 12 miles out of town. The occasion was from some words Burnet should say to a peer, which were by him denied; whereupon Burnet petitioned the king, but was, by the secretary, ordered 12 miles + out of town; speaking with the secretary again, he told him that the king's pleasure was changed from the 12 miles, to forbid him the Court.' Since, the duke of Lauderdale, in company of the archbishop of St Andrews, and the bishop of Salisbury, said he would push the punishment farther.' That, in 1672, he attended the duke of Lauderdale, at Holy-rood House, to intercede for some conventiclers, his kindred, and told him he feared if the security was great against them now in the Dutch war, there might be rebellion.' The duke of Lauderdale replied he could wish that those rogues would rebel, that he might send for some Irish Papists to suppress them.' As to the matter of the Scotch army, he is free to Afterwards bishop of Salisbury. speak of what others were present at, as well as himself; but what passed between the Duke of Lauderdale and himself, desired to be excused till the utmost extremity." Address for the Removal of the Duke of Lauderdale.] April 23. The commons agreed upon the following Address to the king, for the removal of the Duke of Lauderdale: "We your majesty's most dutiful and loyal subjects, the commons in this present parliament assembled, do, with humble thankfulness, acknowledge your majesty's care for the safety of your people, in calling us together at this time to consult of the best means for the preservation of our religion and properties; and though we have great cause to rest assured of the continuance of your majesty's gracious dis position towards us, yet we find, upon a serious examination of the state of this kingdom, that there are great jealousies risen from some late proceedings, in the hearts of your subjects, that some persons, in great employment under your majesty, have fomented designs contrary to the interest both of your maj, and your people, intending to deprive us of our ancient rights and liberties, that thereby they might the more easily introduce the Popish religion, and an arbitrary form of government over us, to the ruin and destruction of the whole kingdom.-Amongst those who are at present em ployed under your majesty, we have just rea son to accuse, for a promoter of such designs, the duke of Lauderdale, lately created earl of Guilford; because we have had it testified in our house, by several of our members, that in the hearing before the council, of the case of Mr. Penystone Whalley, who had committed Mr. John James, contrary to your majesty's Declaration of the 15th of March, 1671, he, the said duke did openly affirm, in the presence of your maj. sitting in council, and before divers of your subjects then attending there,That your majesty's Edicts ought to be obeyed, for your majesty's Edicts are equal with laws, and ought to be observed in the first place,' thereby, as much as in him lay, justifying the said Declaration, and the proceedings thereupon, and declaring his inclination to arbitrary counsels in terror of your good people.-And we are farther confirmed in this opinion by two late Acts of parliament, of a very strange and dangerous nature, which we have observed amongst the printed statutes of the kingdom of Scotland; the first whereof was in the third session of the first parliament, held there under your majesty, c. 25. And the other in your majesty's 2nd parliament, c. 2. The like whereof have never passed since the union of the crowns, and are directly contrary to the intention of an Act passed here in the 4th of king James, for the better abolition of all memory of hostility, and the dependencies between England and Scotland, and for the repressing of occasions of discords and disorders in time to come; and of a like Act, passed about the same time in the kingdom of Scotland, by force of which said late acts there is a Militia, sestled in that kingdom of 20,000 foot, and 2000 horse, who are obliged to be in readiness to march into any part of this kingdom for any service wherein your majesty's honour, authority, and greatness, may be concerned, and are to obey such orders and directions as they shall from time to time receive from the privy council there.' By colour of which general words we conceive this realm may be liable to be invaded, under any pretence whatsoever. And this hath been done, as we apprehend, principally by the procurement of the said duke, be having, all the time of those transactions, been principally secretary of the said kingdom, and chiefly entrusted with the administration of affairs of state there; and himself commissioner for holding the parliament at the time of passing the latter of the said acts, whereby the providing of the said horse and foot is effectually imposed upon the said kingdom, and this extraordinary power vested in the privy council there and we conceive we have just reason to apprehend the ill consequences of so great and unusual a power, especially while the affairs of that kingdom are managed by the said duke, who hath manifested himself a person of such pernicious principles. We do therefore, in all humility, implore your sacred majesty, considering how universal a fame and clamour of the said misdemeanours runneth openly through all your realm, That for the ease of the hearts of your people, who are possessed with extreme grief and sorrow to seen your maj. thus abused, and the kingdom endangered, that your maj, would graciously be pleased to remove the said duke from all his employments, and from your majesty's presence and councils for ever; as being a person obnoxious and dangerous to the government." Dr. Burnet's Examination respecting the Duke.] Lord Cavendish informed the house of one Hamilton who held a Thesis at Leyden, of a strange nature, against the present government, De Erario publicæ necessitatis,' for which the duke of Lauderdale procured him to be knighted, and he was presented with 5001, for it; and had an office given him of secretary of the inspections in Ireland: would have Dr. Burnet called in, who is at the door, and interrogated about it. : Sir Nich. Carew. An arbitrary duke may cause Dr. Burnet to be hanged, drawn, and quartered, when we are up, for informing us therefore, as we may punish Dr. Burnet, if he refuses to speak his knowledge of what we shall ask him, so desires the house may protect him, if he rightly informs them. Mr. Vaughan. Dr. Burnet comes under as high an obligation before us, next an oath, that can be: you cannot indeed extort a question from him, but you may punish him for refusing to answer what you shall interrogate him. Sir Nich. Carew would have him told the power you have. Sir Tho. Lee moves that you mention the words that fell from him at the committee who drew the Address for Removal of the duke of Lauderdale, which are the occasion of his being sent for hither. Dr. Burnet was brought to the bar. Then the Speaker admonished him, That he was sent for to speak his knowledge to what he should be interrogated. He then was asked about the words which fell from him at the committee, and told the power the house had to punish him, if he refused to answer, or prevaricated. Dr. Burnet then said That when he was sent for to the committee he told them, what others knew as well as himself he would declare, but humbly begged pardon if he did not inform the committee what passed in private discourse betwixt himself and the duke; there having been some difference between him and the duke, it might be thought done in revenge:" would willingly prevent ill things: but, with all humbleness in the world, begs pardon of the house for his silence, and submits it to the sense of the house.'-Then the Speaker asked his knowledge about sir Robert Hamilton's Thesis at Leyden, De Ærario publicæ necessitatis.' Burnet said, he had not read it till within these eight days.' And withdrew. Sir Nich. Carew. You have heard Burnet's answer, and desires the opinion of the house to his declaring the discourse betwixt him and the duke of Lauderdale: he believes it to be something of a high nature: would call him in to declare what he knows, which, if he refuses, would send him to the Tower. Sir John Hanmer. It is an ill precedent for man to be put upon declaring private discourse: would not have him sent for in. a Sir Wm. Hickman. This is not a private matter: it concerns the public, and would have him sent for in. Mr. Sacheverell fears that Burnet comes a fishing to know whether you will have any from him. If the matter he knows be dangerous, he ought to reveal it; if not, he is in no danger, and of which you are to judge. Mr. Vaughan. The common safety is the cause. Counsellors reveal their secrets in their closets, not in the streets. That it is not for Burnet's honour to say what he knows,' is no argument, when he seemed to insinuate something more he had to say: for the danger of the discourse betwixt him and the duke he is no judge of. Dr. Burnet then was again called in. And the Speaker told him, That the house was not at all satisfied with his answer, but believes he knows something important that fell from this lord, which, if he concealed, he must expect to be proceeded against accordingly.' Dr. Burnet then said, "He shall always pay obedience to the authority of this house, as becomes him. He never heard the duke of Lauderdale say That he intended to bring the Scotch army into England,' but the duke once asked him, Whether he thought Scotland would assist the king, if he needed them, about supporting the Declaration? To which he indefinitely answered, 'He thought they OF THE LORD TREASURER DANBY. April 26. Mr. Russel said, He was glad to hear, on Saturday last, an account that the would not.' The duke replied, He thought | PROCEEDINGS RELATIVE TO THE IMPEACHMENT they would, and that they would bring a great many with them.' This discourse passed betwixt them the first Saturday in Sept. 1673, in the duke's dressing room, at the Gatehouse, in Whitehall."-He withdrew, Sir Tho. Littleton. Burnet tells us, this was the substance of his discourse with the duke; but would have him called in to inform them the circumstances likewise, which will much enlighten the thing. Mr. Vaughan would know whether he came casually to the duke, or was sent for by him. Col. Strangways would have him asked, what Declaration he means? Sir Eliab Harvey would have him asked, what he does know as to other matters ? Irish Papists to cut their throats.' I was next examined concerning the design of bringing a Scottish army into England. I desired to be excused as to what had passed in private discourse, to which I thought I was not bound to answer, unless it were high treason. They pressed me long; and I would give them no other answer; so they all concluded that I knew great matters; and reported this specially to the house. Upon that I was sent for, and brought before the house. I stood upon it as I had done at the committee, 'That I was not bound to answer; that nothing had passed that was high treason, and as to all other things, I did not think myself bound to discover them.' I said farther, I knew duke Lauderdale was apt to say things in a heat, which he did not intend to do; and since he had used myself so ill, I thought myself the more obliged not to say any thing that looked like revenge for what I had met with from him. I was brought four times to the bar. At last was told, the house thought they had a right to examine into every thing that concerned the safety of the nation, as well as into mat bound to satisfy them. Otherwise they would make me feel the weight of their heavy displeasure, as one who concealed what they thought was necessary to be known.' Upon this I yielded, and gave an account of the discourse formerly mentionedt. They laid great weight on this, and renewed their address against duke Lauderdale." The Clerk, who was ordered to form what Dr. Burnet had given an account of at the bar, did read it to him, which Burnet did avow, and is as follows: "That coming into Eng-ters of treason: and they looked on me as land, out of Scotland, the first Saturday in Sept. 1673, he went to visit the duke of Landerdale, at his lodgings over the Gatehouse in Whitehall, where the duke and he discoursed of the affairs of this nation, and of Scotland, and particularly concerning the proceedings of parliament touching the Declaration for suspending penal laws, in matters ecclesiastical, and being afterwards asked, Whether if Scotland being called in to assist the king in supporting the said declaration, they would assist him or not?' he answered He thought they would not.' But the duke replied, He believed that they would, and that their coming into England would bring a great many.' That the duke asking him of the affairs of Scotland, he answered,The people of Scotland, that were at such a distance, could not imagine what to think of the king's Speech, and what was afterwards done concerning the Declaration.' Whereto the duke replied They have all forsaken the king except myself and lord Clifford." * The Bishop's own account of this affair is as follows: "The house of commons fell upon duke Lauderdale, and those who knew what had passed between him and me, moved that I should be examined before a committee. I was brought before them. I told them how I had been commanded out of town. But though that was illegal, yet since it had been let fall, it was not insisted on. I was next examined concerning his design of arming the Irish Papists. I said, I, as well as others, had heard him say, He wished the Presbyterians in Scotland would rebel, that he might bring over the † At vol. i. p. 355 of his History, where it is thus related, "At my coming to court, duke Lauderdale took me into his closet, and asked me the state of Scotland. I upon that gave a very punctual and true account of it. He seemed to think that I aggravated matters, and asked me, If the king should need an army from Scotland to tame those in England, whe ther that might be depended on? I told him certainly not.' The commons in the southern parts were all presbyterians, and the nobility thought they had been ill used and were generally discontented, and only waited for an occasion to show it.' He said he was of another mind: the hope of the spoil of England would fetch them all in.' I answered, The king was ruined if ever he trusted to that.' And I added, "That with relation to other more indifferent persons, who might be otherwise ready enough to push their fortunes without any anxious enquiries into the ground: they went on, yet even these would not trust the king, since he had so lately said, he would stick to his Declaration, and yet had so soon after given it up.' He said Hinc illæ lachry mæ: but the king was forsaken in that matter. for none stuck to him but lord Clifford and himself.' And then he set himself into a of railing at lord Shaftsbury," |