Prior to the civil war the constitutional energies of the two houses were devoted to defining the balance between themselves and the Crown. After the Restoration much of their focus was directed toward defending their roles vis-à-vis each other. A dispute over their judicial roles in the case of Shirley v. Fagg provoked Shaftesbury’s speech reprinted below. The speech is of particular interest because in it Shaftesbury explains the key role the House of Lords was believed to play within English government. The views and speeches of the members of Parliament were supposed to be confidential, which is presumably the reason the publisher claimed “Two Speeches” was printed in Amsterdam.
Shaftesbury had been a notorious, albeit probably principled, sidechanger during the civil war, joining the royal cause in mid-1643 only to desert it within the year as he became fearful of the king’s aims. He was active in Interregnum governments and urged Cromwell to accept the crown.When Cromwell refused Shaftesbury resigned from the Council of State. Like Vane he sat in Richard Cromwell’s parliament, but unlike Vane he supported the return of monarchy. Shaftesbury joined Charles’s “cabinet council” in 1670 and two years later became lord chancellor. As chancellor he fought for religious toleration in the form of Charles’s unpopular declaration of indulgence. He abruptly switched, however, and vehemently supported the Test Act against Catholics, perhaps because he had learned of the king’s secret promise to Louis XIV to convert. In November 1673 Shaftesbury was dismissed from office and became a leader of the opposition and creator of the group that was to become the Whig party. It was as leader of the opposition that he spoke on behalf of the jurisdiction of the Lords.
The case of Shirley v. Fagg arose when the plaintiff, Dr. Shirley, lost a case in Chancery and appealed to the Lords against Sir John Fagg, an MP for Steyning. In an earlier dispute, Skinner v. The East India Company, the Commons had challenged the Lords’ right to original jurisdiction and won.Now they claimed this appeal was also a breach of privilege that infringed upon their role as a court.To demonstrate the seriousness with which they regarded the matter they sent Fagg to the Tower as punishment for appearing before the Lords and arrested four barristers due to appear in a similar case. Shaftesbury and the opponents of the nonresisting test bill have been accused of goading the Commons into immoderate actions in this case in order to block consideration of that bill. Even if the accusation were true, such a scheme would have failed if the case had not raised a serious constitutional issue.With Shaftesbury’s urging the Lords stood upon their right to hear appeals, even when a member of the Commons was involved. All other business came to a halt, and the king felt obliged to prorogue Parliament. The Lords’ view ultimately prevailed, for the Commons dropped its objections to the supreme appellate jurisdiction of the Lords.
“The Duke of Buckingham’s Speech,” also listed on the title page, is not included in this volume.A list of errata that had been called for by the printer and had “escaped the Press through hast” has been incorporated.
Our All is at Stake, and therefore You must give me leave to speak freely before We part with it. My Lord Bishop of Salisbury is of Opinion, that we should rather appoint a day to consider what to do upon the Petition; than to appoint a day of hearing: And my Lord Keeper, for I may name them at a Committee of the whole House tells Us in very Eloquent and Studied Language, That he will Propose Us a way far less liable to Exception, and much less Offensive and Injurious to our own Priviledges, than that of appointing a day ofHearing. And I beseech Your Lordships, did you not after all these fine Words expect some Admirable Proposal! But it ended in this. That Your Lordships should appoint a day, nay very long day to Consider what You would do in it. And my Lord hath undertaken to convince you, that this is Your only Course by several undeniable Reasons; the first of which is: That ’tis against your Judicature to heer this Cause which is not proper before Us, nor ought to be relieved by Us. To this my Lords give me leave to Answer, that I did not expect from a man Professing the Law; that after an Answer by Orders of the Court was put in, and a day had been appointed for Hearing, which by some Accident was set aside, and the Plaintiffe moving for a second day to be assigned that ever without hearing Counsel on both sides; the Court did enter into the Merits of the Cause. And if your Lordships should do it here in a Cause attended with the Circumstances this is, it would not only be an apparent Injustice, but a plain Subterfuge to avoid a Point you durst not maintain.
But my Lord’s second Reason speaks the Matter more clearly, for that is: Because ’tis a doubtful case, whether the Commons have not Priviledge, and therefore my Lord would have You, To appoint a farther and a very long day to consider of it, which in plain English is, that Your Lordships should confess upon Your Books, that you conceive it on second Thoughts a doubtful Case, for so Your Appointing a day to Consider will do, and that for no other Reason, but because my Lord Keeper thinks it so, which I hope will not be a Reason to prevail with Your Lordships; since we cannot yet by experience tell that his Lordship is capable of thinking Your Lordships in the Right, in any Matter against the Judgement of the House of Commons; ’tis so hard a thing even for the ablest of men to change ill Habits.
But my Lord’s third Reason, is the most Admirable of all which he Styles Unanswerable, viz. That Your Lordships are all convinced in Your Consciences that this (if prosecuted) will cause a Breach. I beseech Your Lordships, consider whether this Argument thus applied would not overthrow the Law of Nature, and all the Laws of Right and Property in the World: For ’tis an Argument, and a very good one, that You should not stand or insist on Claims, where You have not a clear Right; or where the Question is not of Consequence and of Moment, in a Matter that may produce a Dangerous Pernitious Breach between Relations, Persons, Bodies politick joined in Interest, and High Concerns together. So on the other hand, if the Obstinancy of the Party in the wrong, shall be made an unanswerable Argument for the other Party to recede and give up his just Rights, How long shall the People keep their Liberties, or the Princes or Governours of the World their Prerogatives! How long shall the Husband maintain his dominion, or any man his Property from his Friend, or his Neighbour’s Obstinancy? But my Lords when I hear my Lord Keeper open so Eloquently the Fatal Consequences of a Breach: I cannot forbear to fall into some admiration how it comes to pass:That (if the Consequences be so fatall) the King’s Ministers in the House of Commons, of which there are several that are of the Cabinet, and have daily resort to His Majesty and have the Direction and Trust of his Affaires: I say that none of these should press these Consequences there, or give the least stop to the Carreer of that House in this Business; but that all the Votes concerning this Affair, nay even that very Vote, That no Appeal from any Court of Equity is cognisable by the House of Lords, should pass nemine contradicente.2 And yet all the great Ministers with us here, the Bishops and other Lords of greatest dependance on the Court contend this point, as if it were pro Aris & focis.3 I hear his Majesty in Scotland hath been pleased to declare against Appeals in Parliament, I cannot much blame the Court if they think (the Lord Keeper, and the Judges being of the King’s Naming, and in His Power to change) that the Justice of the Nation is safe enough, and I my Lords may think so too, during this King’s time, though I hear Scotland not without reason complain already.Yet how future Princes may use this Power, and how Judges may be made not men of Ability or Integrity, but men of Relation and Dependance, and who will do what they are commanded; and all men’s Causes come to be Judged, and Estates disposed of as Great Men at Court please.
My Lords, the Constitution of our Government hath provided better for Us, and I can never believe so Wise a Body as the House of Commons, will prove that Foolish woman, which plucks down her House with her hands.
My Lords, I must presume in the next place to say something to what was offered by my Lord Bishop of Salsbury, a man of Great Learning and Abilities, and always versed in a stronger and closer way of Reasoning, than the Business of that Noble Lord I answered before did accustome him too, and that Reverend Prelate hath stated the matter very fair upon two Heads.
The first, whether the hearing of Causes and Appeals, and especially in this Point where the Members have priviledge, be so Material to us, that it ought not to give way to the Reason of State, of greater Affairs that pressed us at the time.
The second was, If this Business be of that Moment, yet whether the appointing a day to consider of this Petition; would prove of that consequence, and prejudice to your Cause.
My Lords, to these give me leave in the first place to say, that this Matter is no less than Your whole Judicature, and Your Judicature is the life and soul of the Dignity of the Peerage of England, you will quickly grow burdensome, if you grow useless, you have now the greatest and most useful end of Parliament principally in you, which is not to make new Laws but to redress Grievances, and to Maintain the Old Land-Marks. The House of Commons’ Business is to complain, Your Lordships’ to redress, not only the Complaints from them that are the Eyes of the Nation, but all other particular persons that address to You. A Land may Groan under a Multitude of Laws I believe Ours does, and when Laws grow so multiplied, they prove oftener Snares, than Directions and Security to the People. I look upon it as the ignorance and weakness of the latter Age, if not worse, the effect of the Designes of ill men; that it is grown a general opinion, that where there is not a particular direction in some Act of Parliament the Law is defective, as if the Common Lawhad not provided much better, Shorter, and Plainer for the Peace and Quiet of the Nation than intricate, long, and perplexed Statutes do: which has made Work for the Lawyers, given power to the Judges, lessened Your Lordships’ Power, and in a good measure unhinged the security of the People.
My Lord Bishop tells You, That Your whole Judicature is not in question, but only the priviledge of the House of Commons, of their Members not appearing at Your Barr. My Lords, were it no more, yet that for Justice and the People’s sake You ought not to part with. How far a Priviledge of a House of Commons, their Servants, and those they own, doth extend Westminster Hall, may with Griefe tell Your Lordships. And the same Priviledge of their Members being not sued, must be allowed by Your Lordships, as well, and what a failer of Justice this would prove whilst they are Lords for life, and you for Inheritance, let the World Judge; for my part I am willing to come to Conference whenever the Dispute shall begin again, and dare undertake to your Lordships, that they have neither Precedent, Reason, nor any Justifiable pretence to show against us; and therefore my Lords, if you part with this undoubted Right meerly for the asking, where will the asking stop! And my Lords, we are sure it doth not stop here, for they have already nemine Contradicente! Voted against Your Lordships’ power of Appeals from any Court of Equity! So that you may plainly see where this Caution and reason of State means to stop, not one jot short of laying your whole Judicature aside, for the same reason of passing the King’s Money, of not interrupting good Laws, or whatever else must of necessity avoid all Breach upon what score soever. And your Lordships plainly see the Breach will be as well made upon your Judicature in general as upon this, so that when your Lordships have appointed a day; a very long day, or to consider whether Dr. Shirley’s Cause be not too hot to handle. And when you have done the same for Sir Nicholas Stoughton whose Petition I hear is coming in, your Lordships must proceed to a Vote to lay all private Business aside for six Weeks, for that Phrase of private Business hath obtained upon this last Age, upon that which is your most publique Duty and Business; namely the Administration of Justice. And I can tell your Lordships, besides the reason that leads to it, that I have some intelligence of the designing such a Vote: For on the second day of your sitting, at the rising of the Lords House there came a Gentleman into the Lobby belonging to a very great Person, and askt in great haste are the Lords up? have they passed the Vote? And being asked what Vote? He answered the Vote of no Private Business for six Weeks.
My Lords, if this be your Business, see where you are, if ye are to Postpone our Judicature for fear of offending the House of Commons for six Weeks: that they in the interim may passe the Money, and other acceptable Bills that His Majesty thinks of Importance; are so many wise men in the House of Commons to be laid asleep, and to pass all these acceptable things; and when they have done, to let us to be let loose upon them.
Will they not remember this next time there is want of Money? Or may not they rather be assured by those Ministers that are amongst them, and go on so unanimously with them, that the King is on their side in this Controversie, and when the publique Businesses are over, our time shall be too short to make a Breach or vindicate ourselves in the Matter? And then I beg your Lordships where are you; after you have asserted but the last Session your right of Judicature, so highly even in this Point, and after the House of Commons had gone so high against you on the other hand, as to post up their Declaration and Remonstrances on Westminster Hall Doors, the very next Session after you postpone the very same Causes, and not only those, but all Judicatures whatever. I beseech your Lordships, will not this prove a fatal precident and confession against yourselves? ’Tis a Maxim, and a rational one amongst Lawyers, that one Precedent where the Case hath been Contested, is worth a 1000 where there hath been no Contest. My Lords, in saying this I humbly suppose I have given a sufficient answer to my Lord Bishop’s second Question;Whether the appointing a day to consider what you will do with this Petition of that consequence to your right, for it is a plain confession, that it is a doubtful Case, and that infinitely stronger than if it were a new thing to you never heard of before; For it is the very same Case, and the very same thing desired in that Case, that you formerly ordered and so strongly asserted; so that upon time, and all the deliberation imaginable, you declared yourselves to become doubtful, and you put yourselves out of your own hands, into that power that you have no reason to believe on your side in this Question.
My Lords, I have all the duty imaginable to his Majesty, and should with all submission give way to anything that he should think of Importance to his affairs: But in this Point it is to alter the constitution of the Government, if you are asked to lay this aside; And there is no reason of State can be an Argument to your Lordships to turn yourselves out of that Interest you have in the constitution of the Government, ’tis not only your concern that you maintain yourselves in it, but ’tis the concern of the Poorest man in England that you keep your Station. ’Tis your Lordships’ concern, and that so highly, that I will be bold to say the King can give none of you a requital or recompence for it, what are empty Titles? What is present Power, or Riches and a great Estate, wherein I have no firme nor fixed property? ’Tis the constitution of the Government and Maintaining it that secures your Lordships and every man else in what he hath. The Poorest Lord, if the Birthright of the Peerage be maintained, has a Fair Prospect before him for himself or his Posterity: But the greatest Title with the greatest present Power and Riches, is but a mean creature, and maintains those absolute Monarchies no otherwise than by servile low flatteries and upon uncertain terms.
My Lords, ’Tis not only your Interest, but the Interest of the Nation that you Maintain your Rights, for let the House of Commons and Gentry of England think what they please, there is no Prince that ever governed without Nobility or an Army: if you will not have one; you must have t’other, or the Monarchy cannot long support, or keep itself from tumbling into a Democratical Republique. Your Lordships and the people have the same cause, and the same Enemies. My Lords, would you be in favour with the King? ’Tis a very ill way to it, to put yourselves out of a future capacity, to be considerable in his service. I do not find in Story, or in Modern Experience, but that ’tis better, and a man is much more regarded that is in a capacity and opportunity to serve, than he that hath wholly deprived himself of all for his Prince’s service. And I therefore declare that I will serve my Prince as a Peer, but will not destroy the Peerage to serve him.
My Lords, I have heard of 20 foolish Modells and Expedients to secure the Justice of the Nation, and yet to take this Right from your Lordships as the King by his Commission appointing Commoners to hear Appeals; or that the twelve Judges should be the persons, or that persons should be appointed by Act of Parliament, which are all not only to take away your Lordships’ just Right, that ought not to be altered any more than any other part of the Government, but are in themselves when well weighed Ridiculous. I must deal freely with your Lordships, these things could never have risen in men’s minds, but that there has been some kind of Provocation that has given the first rise of it. Pray my Lords forgive me, if on this occasion I put you in mind of Committee Dinners, and the Scandal of it, those Droves of Ladies that attended all Causes; ’twas come to that pass, that men even Hired or Borrowed of their Friends’ handsom Sisters or Daughters to deliver their Petitions. But yet for all this I must say, that your Judgments have been Sacred, unless in one or two Causes, and those we owe most to that Bench; from whence we now apprehend most danger.
There is one thing I had almost forgot to speak to, Which is the Conjuncture of time, the Hinge upon which your reason of State turns; and to that my Lords give me leave to say, if this be not a time of Leisure for you to vindicate your Priviledges, you must never expect one. I could almost say that the Harmony, good Agreement, and Concord that is to be prayed for at most other times, may be fatall to us now, we owe the Peace of this last two years and the disingagement from the French interest to the two Houses differing from the Sense and Opinion of Whitehall, so at this time, the thing in the World this Nation hath most reason to apprehend, is a General Peace, which cannot now happen without very advantagious Terms to the French, and Disadvantagious to the House of Austria.We are the King’s great Counsellors and if so, have Right to differ, and give contrary Councels to these few are nearest about him, I fear they would advance a General Peace, I’m sure I would advise against it, and hinder it at this time by all the ways imaginable. I heartily wish nothing from you may add weight and reputation to those Councels would assist the French. No Money for Ships, nor Preparation you can make, nor Personal assurances our Prince can have, can secure us from the French if they are at leisure, he is grown the most Potent of us all at Sea. He has Built 24 Ships this last year; and has 30 more in number than we besides the advantage that our Ships are all out of Order, and his so exquisitely provided for, that every Ship has his particular Store-house. ’Tis incredible the Money he hath, and is bestowing in making Harbors, he makes nature itself give way to the vastness of his Expence. And after all this shall a Prince so Wise, so intent upon his affairs, be thought to make all these preparations to Saile over Land, and fall on the back of Hungary, and Batter the walls of Kaminit’z, or is it possible he should oversee his Interest in seizing of Ireland, a thing so feasible to him, if he be master of the Seas, as he certainly now is; and which when attained gives him all the Southern, Mediteranian, East and West India Trade, and renders him both by Scituation and excellent Harbors, perpetual Master of the Seas without Dispute.
My Lords, to conclude this point, I fear the Court of England is greatly mistaken in it, and I do not wish them the reputation of the concurrance of the Kingdom: And this out of the most sincere Loyalty to his Majesty, and love to my Nation.
My Lords, I have but one thing more to trouble you with, and that peradventure is a consideration of the greatest weight and concern, both to your Lordships, and the whole Nation. I have often seen in this House, that the Arguments, with strongest reason, and most convincing to the Lay Lords in General have not had the same effect upon the Bishops’ Bench; but that they have unanimously gone against us in matters, that many of us have thought Essential and undoubted Rights; And I consider, that ’tis not possible, that Men of great Learning, Piety, and Reason, as their Lordships are, should not have the same care of doing right, and the same conviction, what is right upon clear reason offered, that other your Lordships have.And therefore,my Lords, I must necessarily think, we differ in principles; And then ’tis very easie to apprehend what is the clearest sense to men of my principle, may not at all perswade or affect the Conscience of the best man of a different one. I put your Lordships the case plainly, as ’tis now before us. My principle is, That the King is King by Law, and by the same Law that the poor Man enjoys his Cottage; and so it becomes the concern of every man in England, that has but his liberty, to maintain and defend, to his utmost, the King in all his Rights and Prerogatives. My Principle is also, That the Lords House, and the Judicature and Rights belonging to it, are an Essential part of the Government, and Established by the same Law;The King governing and administering Justice by His House of Lords, and advising with both His Houses of Parliament in all important matters, is the Government I own, am born under, and am obliged to. If ever there should happen in future ages (which God forbid) a King governing by an Army, without His Parliament, ’tis a Government I own not, am not obliged to, nor was born under. According to this Principle, every honest man that holds it, must endeavour equally to preserve the frame of the Government, in all the parts of it, and cannot satisfie his Conscience to give up the Lords House for the Service of the Crown, or to take away the just rights and priviledges of the House of Commons to please the Lords. But there is another Principle got into the World, my Lords, that hath not been long there; for Arch-Bishop Laud was the first Author that I remember of it: And I cannot find, that the Jesuites, or indeed the Popish Clergy hath ever owned it, but some of the Episcopal Clergy of our British Isles: and ’tis withal, as ’tis new, so the most dangerous destructive Doctrine to our Government and Law, that ever was. ’Tis the first of the Cannons published by the Convocation, 1640. That Monarchy is of Divine Right. This Doctrine was then preached up, and maintained by Sibthorp, Manwaring, 4 and others, and of later years, by a Book published by Dr. Sanderson, Bishop of Lincoln, under the name of Arch-Bishop Usher,5 and how much it is spread amongst our Dignified Clergy, is very easily known.We all agree, That the King and His Government, is to be obeyed for Conscience’ sake; and that the Divine Precepts, require not only here, but in all parts of the World, Obedience to Lawful Governours. But that this Family are our Kings, and this particular frame of Government, is our lawful Constitution, and obliges us, is owing only to the particular Laws of our Country.This Laudean Doctrine was the root that produced the Bill of Test6 last Session, and some very perplexed Oaths7 that are of the same nature with that, and yet imposed by several Acts of this Parliament.
In a word, if this Doctrine be true, our Magna Charta is of no force, our Laws are but Rules amongst ourselves during the King’s pleasure. Monarchy, if of Divine Right, cannot be bounded or limited by human Laws, nay, what’s more, cannot bind itself; and All our Claims of right by the Law, or Constitution of the Government,All the Jurisdiction and Priviledge of this House, All the Rights and Priviledges of the House of Commons, All the Properties and Liberties of the People, are to give way, not only to the interest, but the will and pleasure of the Crown. And the best and worthiest of Men, holding this principle, must Vote to deliver up all we have, not only when reason of State, and the separate Interest of the Crown require it, but when the will and pleasure of the King is known, would have it so. For that must be, to a man of that principle, the only rule and measure of Right and Justice.Therefore, my Lords, you see how necessary it is, that our Principles be known, and how fatal to us all it is, that this Principle should be suffered to spread any further.
My Lords, to conclude, your Lordships have seen of what consequence this matter is to you, and that the appointing a day to consider, is no less than declaring yourselves doubtful, upon second and deliberate thoughts, that you put yourselves out of your own hands, into a more than a moral probability, of having this Session made a precedent against you.You see your Duty to yourselves and the People; and that ’tis really not the interest of the House of Commons, but may be the inclination of the Court, that you loose the Power of Appeals; but I beg our House may not be Felo de se,8 but that your Lordships would take in this affair, the only course to preserve yourselves, and appoint a day, this day 3 weeks, for the hearing Dr. Shirley’s Cause, which is my humble motion.
1. The functions of the House of Lords included serving as a supreme court and also trying persons impeached by the House of Commons.When Dr. Shirley appealed to the House of Lords against Sir John Fagg, a member of the Commons, however, the Commons refused to allow Fagg to answer while Parliament was sitting and voted the suit a breach of their privilege. See David Ogg, England in the Reign of Charles II (London, 1972), 470–71.
2. With no one contradicting.
3. For [in favor of ] altars and hearths.
4. See, for example, Robert Sibthorpe, “Apostolike Obedience. Shewing the Duty of Subjects to pay Tribute and Taxes to their Princes, according to the Word of God” (London, 1627) and Maynwaring, vol. 1, 56–71.
5. Robert Sanderson, an Anglican theologian and chaplain to Charles I and later Bishop of Lincoln, wrote a preface to a book written by James Ussher, Archbishop of Armagh, at the command of Charles I and published by Sanderson, entitled “The Power communicated by God to the Prince, and the Obedience required of the Subject” (London, 1661).
6. 25 Car. II, cap. 2, An Act for preventing dangers which may happen from Popish recusants, 1673.
7. Acts passed by the Cavalier Parliament that imposed special oaths were the Corporation Act, 13 Car. II, st. 2, cap. 1 (1661); the Militia Act of 1662, 14 Car. II, cap. 3; the Uniformity Act, 14 Car. II, cap. 4 (1662); the Five Mile Act, 7 Car. II, cap. 2 (1665).
8. May not kill itself.
Last modified April 10, 2014