themselves were subjected by it to the meanest | condition of mankind, if they could not enjoy their birthright, without being enforced to swear to every fancy of the present times, which appeared to be the most variable in our story; since, but 3 years before this, all was liberty and indulgence; and now nothing would serve but rigid conformity. To all this no reply was made, nor attempted to be made: numbers were made to sanctify what reason could not be made to countenance; and, on putting the question, it appeared, that Magna Charta itself was of no force against a majority." 6 The Test carried by the Lords.] "Thus, after 16 or 17 days debates, it appeared, that it was not the fault of minister or bishop, that the people of England were not declared' into a new government, more absolute and arbitrary than the Oath of Allegiance, or the old law, knew; and then sworn' to obey, what they had been compelled to set up. In contracts where both parties are to be gainers, there is no fear of nonperformance of either side the king admitted the bishops to share with him in the allegiance of his people; and the bishops, by way of consideration, gave them up to the will and pleasure of the king. Nothing can be urged in excuse of a scheme, at once so treacherous and so wicked as this, but the apprehensions of the court, that the opposite faction were forming designs upon the constitution, as ruinous in the opposite extreme: but these were at that time, apprehensions only; at least, not one fact had been proved to justify thein: and if the case had been otherwise, why should the iniquities of the fathers be visited on their children? Why should a whole nation be enslaved, because a few malignants turmoiled the public for their own private advantage?-The laws in being were very sufficient to guard the crown against any violence from the people, as long as they were suffered to operate equally between the people and the crown; but they would not authorize oppression, which was the thing in pursuit: now, it is only in case of oppression, when law itself is set aside, that the right of resistance has been contended for, as the last resort of a free people and we shall find in the course of this history, even the very bishops themselves refusing to express their Abhorrence of an open invasion, when they found their own possessions in danger. Fundamentals ought to be held sacred on both sides: but if a government sets aside the laws, the governed may do the same: let the subject, however, always remember, that if he draws his sword under whatever provocations, even at a time of day when the doctrine of Passive Obedience has been ever so long and so effectually exploded, by deeds as well as words, it must be at his own peril; and that he will find the great statute of treasons has more power to condemn, than Magna Charta to absolve him.-To return: We left the court-party in possession of their darling Test, though somewhat purged by the fiery trial it had undergone: for now it was conceived as follows:I, A. B. do declare, that it is not lawful, on any pretence whatsoever, to take up Arms against the king: and I do abhor the traiterous position of taking Arms by his authority against his person, or against those that are commissioned by him, according to law, in time of rebellion and war, and acting in pursuance of such com'mission. I, A. B. do swear, that I will not ' endeavour any Alteration of the Protestant religion, now established by law in the church ' of England; nor will I endeavour any Altera'tion in the government in church or state, as it is by law established.'-Nothing therefore remained, but to send it down to the commons, and to prepare it a favourable reception, and speedy passage. According to the seeming temper of that house, the business before them, and their manifest distrust of the court, this appeared to be no easy task: and it might be rather presumed, that they would have rejected it at the first reading, than inclined to strengthen such a king and such a ministry, with such a law. But according to sir John Reresby, who took his seat as a member this session, the two parties were so equal, that neither durst stand the issue of a question: we have evidence left us, that they had their relentings in the case of the lord treasurer: and in any affair where the Church was concerned, there was great reason to fear they would make no difficulty to abandon the people. It is therefore reasonable to conclude, that lord Shaftsbury, and those who were deepest in the secrets of the Opposition, * Andrew Marvell in his "Growth of Popery," speaking of this remarkable contest, says, "It was, I think, the greatest, which had perhaps ever been in parliament; wherein those lords that were against this Oath, being as sured of their own loyalty and merit, stood up now for the English liberties, with the same genius, virtue, and courage, that their noble ancestors had formerly defended the Great Charter of England, but with so much greater commendation, in that they had here a fairer field, and the more civil way of deci sion: they fought it out, under all the disadvantages imaginable: they were overlaid by numbers: the noise of the house, like the wind was against them; and, if not the Sun, the Fire-side (the king generally stood there) was always in their faces: por being so few, could they, as their adversaries, withdraw to refresh themselves in a whole day's engage ment: yet never was there a clearer demonstration, how dull a thing is human eloquence, and greatness how little, when the "bright truth discovers all things in their proper colours and dimensions, and, shining, shoots its beams through all their fallacies." On the country interest, it may be presumed; for he gives us to understand, that be was introduced by the lords Russel and Cavendish. thought it more advisable to prevent its find- Sir Trevor Williams reports, That he had ing its way into that house, than to run the attended the lords with the Message of this risque of its passing through." A quarrel, how-house, concerning sir John Fagg; and the lords ever, which ensued between the two houses, will return an Answer by messengers of their prevented the passing of all the Bills during own. the present session. Sir John Fagg's Complaint.] May 4. Sir John Fagg, bart. this day informing the house, that he was summoned to appear to a Petition in the house of lords, a Committee was thereupon appointed to search for Precedents to that purpose. May 5. Resolved, That a Message be sent to the lords to acquaint them that this house hath received information, that there is a Petition of Appeal depending before them, at the suit of Thomas Shirley esq. against sir John Fagg, a member of this house; to which Petition he is, by order of the house of lords, directed to answer on Friday next and to desire the lords to have a regard to the privileges of this house and that sir Trevor Williams do go up with the Message to the lords." : May 7. A Message from the lords by sir Wm. Beversham and sir Samuel Clarke."Mr. Speaker, the lords have considered of the Message received from the house of commons, concerning Privilege in the Case of sir John Fagg, and do return this Answer, That the house of commons need not doubt, but that the lords will have a regard to the privilege of the house of commons, as they have of their own." May 8. A Committee was appointed to inspect the Lords Journals, to see what Entries are therein made against sir John Fagg, a member of this house, and to report the same. May 12. Resolved, That Dr. Tho. Shirley be sent for in custody, to answer his Breach of the Privileges of this house, in prosecuting a suit by Petition of Appeal in the lords house, against sir John Fagg, a member of this house, during the session and privilege of parliament.-And a Committee is also to inspect the Lords Journals, to see what hath been done in like cases; and the said sir John Fagg is ordered not to proceed, or make any Answer to the said Appeal, without the licence of this house. *" A quarrel which ensued between the two houses, prevented the passing of every bill projected during the present session. One Dr. Sir T. Lee's Report from the Lords Journals.] Shirley, being cast in a law-suit before chan- May 14. Sir Tho. Lee reports from the Comcery against sir John Fagg, a member of the mittee appointed to inspect the Journals of the house of commons, preferred a petition of house of lords, and the Entries therein, in the appeal to the house of peers. The lords re- Case between Dr. Tho. Shirley and sir John ceived it, and summoned Fagg to appear before Fagg, a member of this house, that the comthem. He complained to the lower house, mittee had perused the Journals of the lords who espoused his cause. They not only main-house, and found the Entries to be as follow: tained, that no member of their house could be "April, the 30th. Tho. Shirley, esq. presummoned before the peers: they also asserted, sented a Petition to the lords.' Ordered, That that the upper house could receive no appeals the said sir John Fagg may have a copy of the from any court of equity; a pretension which said Petition and put in his Answer thereunto extremely retrenched the jurisdiction of the in writing, on the 7th of May next, if he peers, and which was contrary to the practice thinks fit.-May, the 5th. The Commons send that had prevailed during this whole century. a Message by sir Trevor Williams: The knights, The commons send Shirley to prison; the citizens, and burgesses of the house of comlords assert their powers. Conferences are mons, in parliament assembled, have been tried; but no accommodation ensues. Four informed, that there is a Petition of Appeal lawyers are sent to the Tower by the commons, depending before their lordships, at the suit of for transgressing the orders of the house, and Tho. Shirley esq. against sir John Fagg a mempleading in this cause before the peers. The ber of their house; to which Petition he is, by peers denominate this arbitrary commitment a their lordships order, directed to answer, on breach of the great charter, and order the Friday next, and desire their lordships to take lieutenant of the Tower to release the pri- care of their privileges.-Answer. That this soners: he declines obedience: they apply to house have considered of their Message, and the king, and desire him to punish the lieute- will send an Answer by messengers of their nant for his contempt. The king summons own.'-Ordered, That the Committee for both houses; exhorts them to unanimity and Privileges do meet this afternoon to consider of informs them, that the present quarrel had the Messages received from the house of comarisen from the contrivance of his and their mons this day, concerning Tho. Shirley esq. enemies, who expected by that means to force and sir John Fagg, a member of the house, a dissolution of the parliament. His advice and search precedents in the case, and report has no effect: the commons continue as violent to the house to-morrow morning.'-May 6th. as ever; and the king, finding that no business The earl of Berks reported, That the Comcould be finished, at last prorogued the par-mittee of Privileges having met and considered liament." Hume, of what was referred to them, in the Case beVOL. IV. ЗА 6 : The house being informed, that the Warrant of this house for taking of the said Dr. Shirley into custody, was forcibly taken away and detained from the serjeant at arms his deputy, attending this house, by the lord Mohun: and the serjeant's deputy being called in and examined as to the matter of fact, gave this testi inner lobby of the house of lords, and that he came to him and desired to speak with him, and acquainted him, that he had a Warrant from the house of commons to apprehend him, and desired to know whether he could shew him any reason to excuse him, that he might not serve the warrant on him and that he likewise told him, that he would not execute the warrant on him in that place, but desired of him that he would go along with him freely; and that in case he would not, he would take his opportunity in another place. And that the said lord Mohun coming in, in the mean time, required him to shew his warrant; which he producing, the lord Mohun laid hands on it, and held it so fast, that it was in danger of being torn; and that therefore he was forced to part with it, and desiring to have it again, the lord Mohun refused it, but carried the war afterwards refused to go along with him, rant into the house of lords. That Dr. Shirley saying, that he was not then his prisoner; and that, several persons interposing, the doctor escaped from him;" and a debate arising thereupon, tween Tho. Shirley esq. and sir John Fagg, a | proceedings thereupon, is a Breach of the unmember of the house of commons, and a Mes- doubted Rights and Privileges of this house." sage from the house of commons thereupon; have ordered hiin to report, that the Committee have found that the house did refer the business of Mr. Hale and Mr. Slingsby, upon the like Message of the house of commons, to the Committee of Privileges; who did report to the house, that it is the undoubted Right of the lords in judicature, to receive and deter-mony: "That he found Dr. Shirley in the mine in time of parliament, Appeals from inferior courts, though a member of either house be concerned, that there may be no failure of justice in the land; and the house did agree with the committee therein and thereupon the Committee do humbly offer to their lordships, upon this occasion, to take the same course, and to insist upon their just Rights in this particular, which their lordships will be pleased to signify to the house of commons, in such manner as they shall think fit.'-The house agreed with the Committee in this Declaration, and ordered the same to be entered into the Journal-Book of this house as their Declaration, viz. That it is the undoubted Right of the lords in judicature, to receive and determine in time of parliament, Appeals from inferior courts, though a member of either house be concerned, that there may be no failure of justice in the land.'-Then it was moved that the former Answer sent to the house of commons in the Case of Mr. Slingsby and Mr. Hale, might be given now to the house of commons, in this Case of sir John Fagg; and that the Declaration and Report, agreed to this day, might be added to it.-The Declaration aforesaid was read, and the question being put, Whether this shall be as a part of the Answer to be given to the house of commons? It was resolved in the negative.-The Answer returned formerly to the house of commons, in the Case of Mr. Slingsby, and Mr. Hale, was in these words: That the house of commons need not doubt but that their lordships will have a regard to the Privileges of the house of commons, as they have of their own. The question being put, Whether this Answer shall be now returned to the Message from the house of commons? It was resolved in the affirmative.-May 7th, it was sent accordingly.-May 7. Whereas this day was appointed for sir John Fagg to put in an Answer to the Petition and Appeal May 15. The Lord Antram reports from the Lord Antram's Report from the Lords] of Tho. Shirley, esq. depending in this house, if lords, that he had, in obedience to the comhe thought fit; the said sir John Fagg appear-mands of this house, attended the lords, and ing personally this day at the bar, and desiring longer time to put in an Answer thereunto: It is thereupon ordered that the said sir John Fagg bath hereby further time given him for putting in his Answer, till the 12th day of this instant May."-Sir John Fagg put in his Answer to the Petition of Mr. Shirley. Resolution thereon.] A debate arising thereupon, touching the Privilege of their house, Resolved, &c. "That the Appeal, brought by Dr. Shirley in the house of lords against sir John Fagg, a member of this house, and the lords to complain of lord Mohun, for forcibly Resolved, "That a Message be sent to the taking away and detaining the Warrant of this house, from the deputy serjeant at arms, for taking of Dr. Shirley in custody; and to demand the justice of the lords house against the said lord Mohun. And that the lord Antram do go up to the lords with the Message." Dr. Shirley ordered into Custody.] Ordered, "That Mr. Speaker do issue forth a new warrant to the serjeant at arms attending this house, for apprehending Dr. Tho. Shirley, to answer his Breach of Privilege, for prosecuting against sir John Fagg, a member of this house, a suit by Petition of Appeal in the lords house during the session and privilege of parliament." delivered the Message concerning the lord Mohuu's taking away, and detaining the War rant for apprehending Dr. Shirley, and that the lords had returned this Answer: "Gentlemen of the house of commons, The lords have considered of your Message, and of the Complaint that they find the lord Mohun hath done notherein; and they return you this Auswer, thing but what is according to his duty." vilege.] The house then resumed the debate Dr. Shirley's Appeal voted a Breach of Pri of the matter concerning the Privileges of this house; and the matter being debated; Resolved, "That the Appeal, brought by Dr. Shirley in the house of lords against sir John Fagg, a member of this house, and the proceedings thereupon, is a breach of the undoubted rights and privileges of the house of commons; and therefore the commons desire, that there be no farther proceedings in that cause before their lordships." Ordered, That, a conference he desired with the lords concerning the Privileges of this house, in the Case of sir John Fagg; and that sir Tho. Lee do go up to the Lords to desire a Conference. A Message from the lords by sir Mondeford Bramston, and sir Wm. Glascock. "Mr. Speaker, We are commanded to let this house know that the lords spiritual and temporal, assembled in parliament, having received a warrant, signed Edw. Seymour, which they have appointed us to shew you and desire to know whether it be a Warrant ordered by this house."-The matter of the Message being debated, the question being put, that the word unparliamentary' be part of the Answer to the lords Message, it passed in the negative. Resolved, That the messengers be called in, and that this answer be returned, that this house will consider of the message. The mes sengers being called in, Mr. Speaker does acquaint them, that the house will consider of the Message. Resolved, "That the Message last received from the house of lords, is an unparliamentary message. That a Conference be desired to be had with the lords, upon the subject matter of the last Message: That it be referred to Mr. Garraway, &c. to draw up Reasons to be offered at the said Conference." Then the house being informed that there is a cause upon an Appeal brought up by sir Nich. Stoughton, against Mr. Onslow, a member of this house, appointed to be heard at the bar of the lords house; Resolved, "That a Message be sent to the lords to acquaint them, that this house has received information, that there is a Cause upon an Appeal brought by sir Nich. Stoughton against Mr. Onslow a member of this house, appointed to be heard at the bar of the house, on Monday next; and to desire their lordships to have regard to the privileges of this house, and that sir Rd. Temple do go up with the Message to the lords."— Ordered, "That Mr. Onslow do not appear any farther in the prosecution of the Appeal brought against him by sir Nich. Stoughton, in the house of lords: That sir Nich. Stoughton be sent for in custody of the serjeant at arms attending this house, to answer his Breach of Privilege in prosecuting a suit in the house of lords against Arthur Onslow, esq; a member of this house, during the session and privilege of parliament." Resolved, "That whosoever shall appear at the bar of the house of lords, to prosecute any suit against any member of this house, shall be deemed a breaker and infringer of the Rights and Privileges of this house." ་ Sir Tho. Lee's report from the Committee.] May 17. Sir Tho. Lee reports, from the Committee appointed to draw up Reasons for the Conference to be had with the lords, Reasons agreed by the committee; which are as follow, viz. "For that the Message is by way of interrogatory upon the proceedings of the house of commons in a Case concerning the Privilege of a member of that house, of which they are proper judges. For that the matter of the Message carries in it an undue reflection upon the Speaker of the house of commons. For that the matter of the Message doth highly reflect upon the whole house of commons, in their lordships questioning that house concerning their own orders; which they have the more reason to apprehend, because, the day before this Message was brought to them, the warrant was owned by the com. plaint of the house of commons to their lordships that the same was taken and detained from a servant of theirs, by a peer; which imports, that the question in that Message could not be for information only, and so tends to interrupt that mutual good correspondency, which ought to be preserved inviolably between the two houses of parliament." May 18. Sir Rd. Temple reports from the lords, that he had attended their lordships, according to the command of this house, with the Message in the Case of Mr. Onslow, to which the lords returned an Answer, which being in writing, was delivered at the clerks table, and read, as followeth: "The lords do declare, That it is the undoubted Right of the lords in judicature, to receive and determine in time of parliament, Appeals from inferior courts, though a member of either house be concerned, that there may be no failure of justice in the land: and from this Right, and the exercise thereof, their lordships will not depart." The matter of the lords Answer being debated, Resolved, "That it is the undoubted privilege of this house, that none of their members be summoned to attend the house of lords, during the sitting or privilege of parliament. That a Conference be desired with the lords, upon the privileges of this house, contained in the lords Answer to the message of this house, in the Case of Mr. Onslow. Reasons to be offer'd to the Lords at the Conference.] May 20. Sir Tho, 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, contained in the lords Answer to the last Message of this house, in the case of Mr. Onslow; which Reasons were twice read, and, with some alterations at the clerk's table, agreed to, as follow: 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 at any ex- the least to reflect upon the h. of commons, That for the h. of peers, upon a Paper produced to at the mem- their lordships, in form of a Warrant of that may Feely at house, whereof doubt was made among the house, without lords, whether any such thing had been orwhich doth ex- dered by that house, to enquire of the comhere the house of mons whether such warrant was ordered there acher courts. 3. or no? And, without such liberty used by the se and usage of par-lords, it will be very hard for their lordships rat se base of com- to be rightly informed, so as to preserve a mehouse of lords, without good correspondence between the two houses, a that house first obtained, which their lordships shall endeavour; or to ne i samimated ar compelled so to do. know when warrants, in the name of that ss proceed to hear and de- house, are true or pretended: and it is so unwhere the party neither grounded an apprehension, that their lordships accend, such proceedings intended any reflection in asking that question, mary the rules of justice. 5. and not taking notice in their Message of the The not determining of an Appeal against Complaint of the h. of commons owning that a member at the house of commons, is not a warrant, that the lords had sent their Message are US, but only a suspension of pro- concerning that Paper, to the h. of commons, credagsa a particular case, during the con- before the lords had received the said comtance of that parliament which is but tem- mons complaint.-But their lordships have & That in case it were a failure of great cause to except against the unjust and Justice, a is not to be remedied by the house strained reflection of that house upon at es wice, but it may be by act of par- lordships, in asserting that the question in the The Laris Reasons.] Mr. Powle reports, we affirm, but tending to interrupt the mutual from the Conference had with the lords upon correspondence between the two houses; which the subject matter of the former Conference, we deny, and had not the least thought of-The concerning the Warrant for apprehending Dr. lords have further commanded us to say, that Shurley, That the lords had returned an An- they doubt not but the h. of commons, when at the former Conference, and are as follows: this conference, will be sensible of their error, swer to the Reasons of this house, delivered they have received what we have delivered at "The lords have appointed this Conference, in calling our Message strange, unusual, or unand have commanded us to give these Answers notice, that their Answer to our Message, that upon the subject matter of the last conference, parliamentary. Though we cannot but take to the Reasons and other matters then deli- they would consider it, was the first of that vered by their lords Message could not be for information, as we can find to have come from that question, the lords conceive that the most na- house." The Lords Reasons voted unsatisfactory.] The tion; and seeing a Paper here, which did re- question being put, Whether the house be satural way of being informed, is by way of quesflect upon the privileges of the lords house, tisfied with the Reasons delivered by the lords their lordships would not proceed upon it, till at the last Conference? it passed in the nega they were assured it was owned by the house tive.-Resolved, That a free conference be de of commons: but the lords had no occasion sired with the lords upon the matter delivered at that time, nor do they now think fit, to enter at the last Conference; and that the former into the debate of the house of commons being, managers do attend, and manage the free conor not being proper judges in the case conference. Sir T. Lee's Report from the Committee.] cerning the Privilege of a member of that house; their lordships necessary consideration, May 28. Sir Tho. Lee reports, from the comupon sight of that paper, being only how far mittee to whom it was referred to draw up the b. of commons ordering (if that paper were Reasons to be offered at a Conference to be theirs) the apprehension of Dr. Shirley, for had with the lords, upon the subject matter of prosecuting his Appeal before the lords, did their Answer to the last Message of this house, entrench upon their lordships both privilege in the Case of Mr. Onslow, several Reasons and undoubted right of judicature, in the con- agreed by the said committee: which were sesequence of it, excepting all the members of verally agreed unto, and are as follow; “ For both houses from the judicature of this the that the commons desired a Conference upon highest court of the kingdom; which would their Privileges concerned by the lords Answer a failure of that supreme justice, not ad- to a Message sent to the lords the 18th of May, le in any other court, and which their in the Case of Mr. Onslow; their lordships never admit. As to the 2nd have not agreed to any conference in the case ords answer, That they do not of Mr. Onslow, but have only agreed to a the matter of this Message is conference concerning their Privileges in gene pon the Speaker of the house ral, without reference to the Case of the said To the 3d Reason, The lords Mr. Onslow; which was the only subject mat e how it can be apprehended inter of the desired conference.-The limitation in 66 |