IDE
་་་་་
ARTES
1837.
SCIENTIA
VERITAS
LIBRARY
OF THE
UNIVERSITY OF MICHIGAN
C. PLURIBUS UNUM
SI-QUAERIS PENINSULAM AMOENAMUS
CIRCUMSPICE
THIS BOOK
FORMS PART OF THE
ORIGINAL LIBRARY
OF THE
UNIVERSITY OF MICHIGAN
BOUGHT IN EUROPE
1838 TO 1839
BY
ASA GRAY
THE
PROCEEDINGS
IN THE
House of COMMONS,
Touching the Impeachment of
EDWARDS
Late EARL of
CLARENDON,
Lord High-Chancellour of Eng.
land, Anno 1667.
With the many Debates and Speeches in
the Houfe. The Impeachment Exhibited
against him. His Petition in Anſwer
thereto. As alfo the feveral Weighty
Arguments concerning the Nature of
Treafon, Bribery, &c. By Serj. Maynard,
Sir Ed. S. Sir T. L. Mr. Vaughan, Sir Rob.
Howard, Mr. Hambden, and other Mem-
bers of that Parliament.
TOGETHER,
With the Articles of High-Treafon Exhibi-
ted againſt the ſaid Earl, by the Earl of
Bristol in the Houfe of Lords on the
10th of July, 1663. With the Opinion
of all the Learned Judges therein.
The Second Edition carefully Corrected.
Printed in the Year, 1700.
6f. Brit. Tudian of 11667, House of compen§.
C
THE
PREFACE,
TO THE
READER.
I
Think there needs not much
be ſaid to recommend the
following Sheets to the In-
telligent Reader. It has been
the Opinion of the Wifeft Men
that Letters, Memoirs, and Pub-
lick Speeches, have ever been the
Clearest and Most Exact Hiftories
of Times, and have given the
trueft Light into the Spirit and
Bent of a People, efpecially, where
Liberty, that Darling of the Uni-
verfe, that sweetest Cordial of Man-
kind, bears Sway; and where fhall
We find it so justly Claim'd, fo
Strenuously maintain'd as in our
A 2 Engliſh
ار
The
PREFACE.
Engliſh Conftitution? a Con
ftitution ſo exactly fitted for
the Preferving that Ineftimable
Jewel, that the Deepest Arts and
Subtilties of the most Crafty
Stateſmen cou'd never yet Under-
mine, or Ravish our Envied
Freedom from us; on the Con-
trary, They have ever met their
own Deſtruction, when They have
been fo Rafh as to make the At-
tempt; and I dare boldly fay, that
We our felves must give it away, if
ever We are not Mafters of it; for
it cannot be forc'd from us.
If We reflect on the Hardſhips
other Nations Groan Under, and
then confider the Plenty and Eafe
We fenfibly Enjoy, We must juftly
Honour the Memories of our Glori-
ous Ancestors, who have handed
down fo dear a Prize to us. If
we look backward, we ſhall find
there
The
PREFACE.
there have been great Attempts,
both Open and Secret, to break in
upon, or leffen our juft Rights
and Priviledges, but there have
ever been Perfons of Generous
Spirits and Unfhaken Refoluti-
ons, Who have nobly Oppos'd the
bold Invaders, being neither to be
Aw'd nor Brow-beaten by any
Higher Power, nor Brib'd by
the most Advantageous offers of
Profit or Honour, to betray fo
Glorious a Caufe: We have
never yet found a Wicked Coun-
cellour or an Evil Minifter that
cou'd Eſcape the Juftice of a
Houfe of Commons. 'Tis true
in fome former Reigns a Parliament
was no very defirable Thing, and
feldom call'd, but whenever they
met they bravely Attack'd the Ene-
mies of the Nation tho' never fo
Potent, and brought down fuch
as
The
PREFACE.
as have thought themſelves Secure,
and out of Reach; and I trust, as
we have not yet, we never fhall,
fee Ill Men in fuch a Station.
We live now (God be thanked)
in a time when we need not fear
Encroachments on our Juft Li-
berties and Properties; are we
not Bleft with a King who hath no
Deſign to Enslave or Burthen his
People? Have we not Miniſters
that A&t with Uprightneſs and In-
tegrity? Are we not rul'd by a
Monarch who makes the Interest
of the Nation his own, and regards
Merit only in the Choice of his
Minifters? do we fee any Court-
Minion or haughty Favorite Ad-
vanc'd? or any Man of worth pass
Unregarded and Defpis'd? In
Short, have we not a King who only
thinks himself happy, because he fees
his People fo? And as the common
Adage
The
PREFACE.
Adage has it, Regis ad exemplum.
Do we not see our Grandees following
their Great Mafters Steps? Are not
Envy and Ambition now Banifb'd
the Palace Gates? What Courtiers
do we now find breaking their Pro-
miſes, or giving oyly Words inftead
of just Performances? Do they
now covet Perferments to get vaft
Eftates? Are they not contented
with their moderate Perquifites?
What Minifters can the most obfer-
ving Eye find Guilty of Acting,
Advifing, Ill? Or who amongst them
are afraid to ftand the Teft of the fe-
vereſt Scrutiny? Such is the Hap-
pineſs we now Enjoy, fuch are the
Blessings of our Prefent Admini-
Atration. But I have wander'd be-
yond my purpoſe, my Zeal to fo
much Goodness has carry'd me
wide of my Defign, which was to fay
Something by way of Preface of the
following
The PREFACE.,
"
following Sheets, which were Pub-
liſh'd, not to reflect on the Memory
of any, but at the defire of fome
very Judicious Perfons, who thought
it pitty a Collection fo fill'd with
Law and folid Senſe fhou'd be kept
fecret; and I believe none, who
read it, but will highly applaud
the Publishing. The World muft
own that the Learned Perfons, whose
Speeches are contain'd in the fol
lowing Pages, have been famous
for the depth of their Judgment,
and profoundness of their Senfe, and
many of them have been justly E-
fteem'd the most eminent Lawyers of
their Time: I shall only add that
Several of our greatest Men have
highly valued it in Manuſcript, and
I doubt not but all who read it, will
think it fit, not only for a Lamy-
er's, but every English Gentleman's
Study.
A
(1)
ང--
A
COLLECTION
Of Proceedings in the
House of COMMONS,
About Impeaching the EARL of
CLARENDON,
Late L CHANCELLOR.
With the Debates and Speeches
concerning that Matter.
M
October 26th, 1667.
R. Ed. Seym. Charged him viva
voce with many great Crimes,
whereupon a Debate aroſe what
Proceeding ought to be had up-
on it, fome moving to Impeach him in the
Name of the Commons till Articles fhould
be prepared, others urg'd, that Witneſſes
fhould be firft examined to fee how the
B
Charge
(2)
}
Charge could be made good, leaft failing,
it ſhould reflect on the Honour of the Houſe,
after long Debate, a Committee was ap-
pointed to fearch Records for Parliamenta-
ry Proceedings in the like Cafes, and to
make Report.
30th, The Report being made by Sir Tho.
Litt. that various Proceedings were found
in feveral Parliaments, it occafioned a long
Debate, feveral Members ſpeaking to the
effect following,
Sir Tho. Litt. That in Cafes Criminal,
they find Proceedings to have been, fome-
times by Articles, fometimes by word of
Mouth;
but in Capital Crimes no Pro-
ceedings appear till the Earl of Strafford's
Cafe, againſt whom the Houſe carried up
a general Impeachment, the Reaſon where-
of feems to be this: Some Votes were
made in the Houſe at which the King takes
Offence, as if they would proceed upon com-
mon Fame; whereupon they vindicate their
Proceedings as done in a Parliamentary way,
and appoint a Committee to withdraw for
about half an Hour to confider the Matter
for a Conference with the Lords about the
Charge, and upon their Report a general
Charge is carryed up to the Lords Bar; the
principal Charge then was for advising to
bring over the Irish Army, and the fingle
Proof was Sir Henry Vane, fo the Impeach-
ment went up for High-Treafon, tho' no
Member
( 3 )
Member would pofitively fay he would
make the Charge good.
So for the Bishop of Canterbury there
was no Impeachment, but a Charge in ge-
neral.
And if you take not the fame Courſe
now, but infift upon examining Witneffes
firſt, the Difficulties will be unanfw crable;
for is it like that Men before they ſhall fee
you in earneſt will have their Names pro-
duced against the Earl of Clarendon? If this
be your proceeding, we muft never expect
to Impeach a great Man more.
If you
think there is nothing in the Charge leave
it, but if you think 'tis worth your while
take heed of making fuch a dangerous Pre-
fident as by neglecting it to wound your
Liberties; but proceed in the ufual way
with a general Impeachment.
Serj. Mayn: I ftand not up to give Ad-
vice, but to fpeak to matter of Fact in the
bufinefs of Strafford and Canterbury; I at→
tended that buſineſs from the beginning:
Sir John Clotworthy informed fomething a-
gainst Strafford to be direct Treafon, that
he had affumed an Arbitrary Power in Ire-
land, and difpoffeffed one Savage by force
of Arms, and undertook to prove it. Sir
Henry Vane alfo told them that he had a
Note taken out of his Fathers Cabinet, con-
taining the Advice which Strafford gave the
King in that Cafe. Namely, the King wan-
ting
B 2
(4)
ting Money, and the Queſtion being how
he ſhould ſupply it, he replyed, That if the
Parliament was refractory and would not, you
ſtand loofed and abfolved from Rules of Govern-
ment; you have an Army in Ireland which
you
may employ to reduce them.
Then there was a Debate whether they
fhould accufe him of Treafon. And Sir
Edward Herbert (the Attorney) ſaid, if
you are perfwaded the Truth is, as is pre-
tended, you may, and fo it was; but when
the cloſe Committee had examined the bu-
fineſs, they moved the Houſe, that fome
Lawyers might be added to them, and had
they gone, when they ſaid they were ready,
they had not touched one Hair of Strafford's
Head. Then it was conſidered what was
fit to be done: To accufe him of Treafon
would be a dangerous Prefident, as if out
of many other Crimes a Treafon could be
drawn, thereupon it was Refolved not to
demand Judgment from the Lords, becauſe
ſome Articles were not Treafon. Then it
was propounded not to State what his Of-
fences were, left it fhould give advantage
to inferior Courts fo to proceed; but faid
he deſerved to be accufed of Treafon, and
in conclufion a Provifo was added, not to
make that Cafe a Preſident.
For the Biſhop of Canterbury, the four Ar-
ticles were general, and he was long in Pri-
fon without any proceeding againſt him;
but after long time he demurr'd, then new
Articles were framed, on which he dyed.
Mr. John
(5)
Mr. John Vaugh. You have had a Charge
opened of a ſtrange Nature, and I know
not what part of it can be proved, but the
reputation of This Houfe is at Stake, and of
the King too; For, where a Charge is
brought in by fome of your Members,
whereof one Article is, That he fhould fay
fuch words,of the King, as by a Statue made
by you is a Premunire, and to give Coun-
cel to levy War upon the Kingdom; is it
agreeable to our Duty to the King and
Kingdom to let it die?
For the Perfon concerned, I know not
which way his Honour can be whole with-
out his giving an Anfwer to his Charge;
for Mark the Confequence, if the King
fhould take him to favour again before
clear'd, will not the World ſay a Perſon is
received to favour again, who gave the
King Councel against the Kingdom, and
traduc'd the King, and how can he be whole
in his Honour this way;
Obj. But it will be faid, we muſt have
ground to put him to Anſwer.
Anf. Whether you have ground enough
to prove I know not, but you have ground
enough to make him Anſwer to clear him-
felf. Suppoſe thoſe two Articles had been
Charged on a Member of this Houle, what
would it have become that Member to do;
Should he fit ftill and fay, I will make no
Anſwer, but fee whether the Houſe will
make more proof; If he fhould do fo, the
B 3
not
:(6)
not making an Anſwer is Reafon enough to
Charge him.
I can give you Inftances of Perfons charg-
ed in Parliament, who, tho' not nominated,
yet being (as it were) pointed at, Petiti-
oned that they might Anfwer, and fo would
any Man; but when this is bruited up and
down, will not the World ſay? You never
ask the party whether Guilty.
The Duke of Suffolk was Charged upon
Common Fame, and if that were a ground
for a Charge then (which I do not fay it
was) fo it is in this Cafe; but he moved
that he might be heard, and tho' it was de-
fired he might be Committed, yet it was
justly rejectly till he had Anfwered: Then
for the Nature of the Charge, if it be true,
it is very High, but whether it be Treafon
is another Matter, it is brought to you un-
der no Name, when you make the Charge,
it becomes you to fay what it is; therefore
Chooſe a Committee to reduce the Accuſa-
tion into Heads, and bring them to you,
without which you cannot right you felves,
nor him, if Innocent.
For the way of it, it cannot be thought
fit to publish your Witneffes and the Mat-
ter before-hand, if in private Gauſes the
Defendant and Plaintiff fhould have a Pub-
lication before hand, no Cauſe would be
rightly Judged, much lefs when you have
Publication of all which concerns the One,
but nothing of the Other. Again, if a
Witnefs
(7)
Witneſs be examined concerning Matters
in his own Knowledg, if he gives Evidence,
where he is not brought judicially to give it,
if he hath teſtified any Thing which brings
him within the Statute of falfe News,
how can he avoid the Penalty? For its not
enough for him to ſay he knows it but he
muſt have others to juftifie it.
As for the Perfons who bring the Charge,
they are your own Members, which the
Writs return for honeft and difcreet Men,
and if you are fatisfied of that, how can
you reject their Complaint, tho' ground-
ed
upon Common Fame, as all Accufations
are, feeing they tell you, they can bring-
Proof of what they ſay?
Then for Common Fame, if a Man fpends
largely, and hath no visible way to get an
Eſtate, no Man accufeth him to have got-
ten it unlawfully; yet he may be put to
clear himſelf from what Common Fame
chargeth him with. Upon fufpicion of Fe-
lony, I may bring a Man before a Magi-
ſtrate to clear himſelf, fo in the Courſe of
Indictments, and Prefentments, a Charge is
given of what Things are to be Prefented?
then a Proclamation is made, That if any
one can give Evidence, he may be Sworn,
but if no Evidence appear, yet they may
Indict.
Then it will be faid, the Oath is a Mate-
rial Thing, but we are proceeding without
an Oath.
B 4
To
(8)
'
To this I Anfwer, What this Houſe fhall
Charge is of more Authority than the
Oaths of ordinary Witneffes; Peers tho' not
upon Oath are fuppofed to do right, fo are
we upon the Reputation of our Honeſty
and Difcretion.
Mr. L. H. I am fenfible, the Houſe may
think me Partial, but I fhall endeavour to
thew my felf not fo much a Son of the Earl
of Clarendon as a Member of this Houſe;
and I affure you that if he fhall be found
Guilty, no Man fhall appear more againſt
him than I; if not, I hope every one will
be for him as much as I; let every Man
upon his Confcience think what of this
Charge is true, for I believe that if one
Article be proved, he will own himſelf
Guilty of all.
?
Sir Hen. Fin. An Impeachment there
muft be, if there be Caufe; fuch Accufati-
ons are not to be paffed over in filence.
I believe not one truth in the Law more
than this Propolition, That there is no
fuch thing as Treafon by Common-Law, or
by Equity, and we hold our Lives by that
Law; before the 25th of Ed. the 3d. a
Man could fcarce fpeak any think but it
was Treafon in Parliament or out, but no
Man ought to die as a Traitor, who hath
not literally offended that Law, or fome
other made fince: There is indeed in that
Law
(9)
Law a Provifo about the Parliaments de-
claring what is Treafon, but note the dan-
ger of taking declaratory Powers, which I
fear hath brought us into a Reckoning of
Blood, which we have not yet paid for.
The Power of Parliaments is double,
Legislative, which hath no bounds, Declara-
tory, by pronouncing Judgments.
And tho' I know not what the Legifla-
tive Power of a Parliament cannot do, yet
it is not in the power of the Parliament,
King, Lords, nor Commons, to declare any
thing to be Treafon which is not in the
Common-Law Felony before. The Provifo
in Strafford's Cafe was (it's true) made
for Inferior Courts; but I hope we ſhall not
fo proceed as muft needs draw after it a Ne
trahatur in Exemplum, and your own Act
this Parliament fhews, That all done by
Strafford, a-part, or together, was not Trea-
fon: And it behoves us to take heed we
thwart not our own Argument.
For the manner then, Confider how you
fhould proceed if it were out of Parliament,
and how the bringing of it into the Houfe
alters it.
If it were out of Parliament, without
doubt the Accufation fhould be proved be-
fore hand, and thoſe who difcover it are
guilty of Felony. This provides for the
Subject, that the Witneſſes must be Two,
and for the King, that none fhall difcover
the Evidence.
But
( 10 )
But fuppofe the Charge be for Mifde-
meanours, the Tryal then is not to be by
the Lords, but by the Commons; for the
Lords are his Peers only in Cafes Capital.
How then doth the bringing it in to Par-
liament alter the Cafe? If the Parliament
fet aſide Laws in this Cafe, we ſhould be
happy to ſee Law declaring what is the
power of Parliaments.
There is no Prefident produced which
is fingly of Weight to guide you, there-
fore if you proceed, let it be as near as pof-
fible by the good Old Laws; Namely, That
there be an Accufation founded upon an
Oath and the Evidence kept fecret, I
propoſe that way for the very reaſon that
others oppoſe it (viz) The Accufation
goes over the Kingdom, and it will bring
diſhonour to the Houſe, the King, and the
Earl; For the Honour of the Houfe, it will
be hard to fay, the Charge was brought in
upon miſinformation; a Perfon accufed
for adviſing to bring in Arbitrary Govern-
ment, &c And for ſaying the King is not
fit to Govern; If this be true, tho' it be
not Treaſon in the formality of the Law, it
deferves no lefs Puniſhment then if it were;
but if not found Guilty, Confider the Cafe.
If one fay, A killed a Man and it is not
fo, muſt not he give reparation? We have
an accufation upon hear-fay, but if it be
not made good, the blackeſt Scandal which
Hell can invent, lies at our door.
Then
( II )
Then Sir Tho. M--rs moving to referr it
to the Committee of Grievances.
Mr. Vaugh. You ſhould have put the firſt
Queſtion before another had been moved,
the Earl of Middleſex (Cranfield's Cafe )
will not hold paralel; He was accuſed of
Bribery, which might be proved by their
own Books, but this is for Scandalizing the
King, &e. And where fhall the Gommit-
tee of Grievances enquire about it? you
fay let them hear the Perfons.
But fuppofe they be of the Lords Houfe,
Can you fend for them? Or if you do, will
they come and fay it? The matter of this
Accufation is fuch, that if it lies in the
knowledge of a fingle Perfon, if he delivers
it extrajudicially (which he doth, if not
upon Oath) he may be undone by it, and
hazard his Perfon too: At the Committee of
Grievances the Perfons muſt be known, and
what they can fay, and then we may con-
clude what will follow: Befides, their Qua-
lity may be fuch as they cannot be brought,
or their Difcretion fuch as they will not an-
fwer.
Sir Rich. Temp. Tell but the Lords that
a Man in publick place hath misbehaved
himſelf, and they will fentence him, if he
purge not himself; Never yet were Wit-
neſſes examined before the Tryal in cafe of
Treafon
( 12 )
Treafon or Felony, for then, if there be two
Witneſſes, a way may be found by Poyfon,
or fome other way, to take away one.
Serj. Mayn. No Man can do what is Juft,
but he muſt have what is true before him;
where Life is concern'd you ought to have
a moral Certainty of the Thing, and every
one be able to fay upon this proof in my
Confcience, This Man is guilty. Common
Fame is no ground to accufe a Man where
matter of Fact is not clear; to ſay an Evil
is done, therefore this Man hath done it, is
ftrange in Morality, more in Logick.
Upon the whole Debate it was Voted,
That the Committee do reduce the Ac-
cufation to Heads and prefent them to this
Houfe.
Novem.
(13)
November 6th, 1667.
Sir Tho. Litt. Reports that the
Accufation was reduced to
Heads, which he read in his
Place, and afterwards delive-
red the fame in at the Clerks
Table, which are as follow-
eth' viz:
'T
Τ
HAT the Earl of Clarendon
hath defigned a Standing Army
to be raised and to govern the Kingdom
thereby, and advised the King to Diffolve
this prefent Parliament, to lay afide all
Thoughts of Parliaments for the future,
to govern by a Military Power, and to
maintain the ſame by Free Quarter and
Contribution.
II. That he hath, in the hearing of the
King's Subjects, falfely and feditiously
faid, That the King was in his heart a
Papist, or Popishly Affected, or words to
that effect.
III. That
(14)
III. That he hath received great Sums
of Money for the procuring of the Canary
Patent, and other illegal Patents; and
granted illegal Injunctions to stop procee-
dings at Law against them, and other
illegal Patents formerly Granted.
IV. That he hath Advifed and Pro-
cured diverfe of His Majesty's Subjects to
be Imprisoned against Law, in remote
Ilands, Garrisons, and other Places, there-
by to prevent them from the Benefit of the
Law, and to produce Prefidents for the
Imprisoning any other of His Majesty's
Subjects in like manner.
V. That he procured His Majesty's
Customes to be Farmed at under Rates,
knowing the fame; and great pretended
Debts to be paid by His Majefty, to the
payment of which, his Majefty was not
in strictness bound: And afterwards re-
ceived great Summs of Money for procu-
ring the fame.
VI. That he received great Summs of
Money from the Company of Vintners, or
Some of them or their Agents, for In-
bouncing
(15)
hauncing the Prizes of Wines, and for
freeing them from the payment of legal
Penalties which they had incurred.
VII. That he hath in a fhort time gai-
ned to himſelf a greater Eſtate than can
be imagined to be gained lawfully in fo
ſhort a time, and contrary to his Oath, he
bath procured Several Grants under the
Seal from His Majesty, to himſelf and Re-
lations, of feveral of His Majefty's Lands,
Hereditaments and Leafes, to the difpro-
fit of His Majesty.
VIII. That he hath Introduced an Ar-
bitrary Government in His Majesty's For-
reign Plantations, and hath cauſed fuch
as complained thereof before His Majefty
and Councel, to be long Imprisoned for ſo
doing.
IX. That he did reject and frustrate a
Propofal and Undertaking, approved by
His Majefty for the prefervation of Me▪
vis, and St. Chriftophers, and reducing
the French Plantations to his Majesty's
Obedience after the Commiffions were
drawn for that purpose, which was the
occafion
( 16 )
occafion of our great Loffes and Damage
in thoſe Parts.
X. That he held Correfpodence with
Cromwell and his Complices, when he was
in Parts beyond the Seas attending His
Majefty, and thereby adhered to the
King's Enemies.
XI. That he advised and effected the
Sale of Dunkirk to the French King, be-
ing part of His Majesty's Dominions; to-
gether with the Ammunitions, Attillery,
and all forts of Stores there, and for no
greater value, than the ſaid Ammuniti-
ons, Artillery, and Stores were worth.
XII. That the faid Earl did unduely
caufe Hii Majesty's Letters Patents, un-
der the Great Seal of England, to one
Dr. Crowther, to be alter'd, and the En-
rolement thereof to be unduly rafed.
XIII. That he hath in an Arbitrary
way examined and drawn into question dis
vers of Flis Majesty's Subjects, concern-
ing their Lands, Tenements, Goods, Chat-
tells, and Properties, determined there-
of at the Council Table, and stopped Pro-·
ceedings
( 17 )
ceedings at Law by Order of the Councel-
Table, and threatned fome that pleaded
the Statute of 17 Car. I.
XIV. That he hath caufed Quo Wars
ranto's to be iſſued out against most of the
Corporations of England, immediately af-
ter their Charters were Confirmed by Act
of Parliament, to the intent he might
require great Summs of Money of them
for renewing their Charters, which when
they complyed withal, he caufed the faid
Quo Warranto's to be Difcharged, and
Profecution therein to ceafe.
XV. That he procured the Bills of
Settlement of Ireland, and received great
Summs of Money for the fame in most cor-
rupt and unlawful manner.
XVI. That he hath deluded and betray
ed Flis Majesty and the Nation in all For-
reign Treaties and Negotiations relating
to the late War, and betrayed and difco-
vered His Majesty's fecret Councils to his
Enemies.
XVII. That he was a principal Author
of that fatal Council of dividing the Fleet,
about June, 1666.
C
The
(81)
The Clerk having read them a fecond time
it was moved, That in regard the Arti-
cles were many, they might be referr'd
to the Committee to fee how far they were
true, becauſe Fame is too ſlender a ground
to bring a Man upon the Stage.
Sir Fran. Goodr. Seconds it, becauſe new
matter was now added to what was for-
merly charged Viva voce in the Houſe.
Sir Rob. How. Suppofe the Earl of Cla-
rendon Innocent, and yet Charged and Im-
prifoned (which is the worst of the Cafe)
he afterwards appears Innocent and is dif
charged, receiving no more hurt than other
Subjects have done; Namely,
*D. Buck. * one great Man lately.
Object. But why fhould you Commit
him?
Anfw. For proof, whether the Articles
be true or not: Suppofe Men for ſelf pre-
fervation will not venture to come, not
knowing how they may truft themſelves,
and ſo you have no Proof, He very guilty,
and You not able to proceed; is the In-
conveniency greater for an Innocent Per-
fon (if he prove fo) to fuffer a few days,
than for you to loofe your Repuation for
ever. If this Man be not brought to his
Tryal, it may force him to fly to that which
he Councelled, that is, that we may never
håve Parliament more.
Sir
*
( 19 )
Sir Fra.Goodr. I am not against proceeding,
but unfatisfied to do it without Witnels, it
being like Swearing in Verbo Magiftri.
Sir John Holl. That the Committee un-
dertake to make good the Charge, other-
wife examine Witnelles.
Mr. Vangh. You admit the Accufation to
be matter for a Charge, if the Committee
find proof, if you intend to make this a
diftinct Cafe I leave it to you, but if this
be to fettle the Courfe of the Proceedings
of the Houfe, I am againft it; for this is
ordering a way of Proceeding in the Earl
of Clarendon's Cafe, which fhall not be a
general Rule. Tho' I cannot fay one of the
Articles to be true, yet I know them to be
a full Charge if made good, and you are
preſcribing a Courſe neither proper, nor e-
ver practifed. A Witnefs who fpeaks with-
out Oath is fubject to Damage; not fo up-
on Oath, becauſe the Law compells him:
And whereas it hath been faid, if Witnef
ſes atteft before the House of Commons, what
Judges dare middle in't? I answer, fuch
Judges as meddled in the Cafe of Sir John
Elliot, &c. and the Ship Moneys
Sir Rich. Temp. A Grand Jury is capable
to prefent upon their own knowledge, and
are Sworn to keep the King's Council and
C 2
their
*
(20)
their own, and I believe there is not one
Article of the Accufation but will be made
good.
Sir Rob. How. As I am fenfible of the
danger of publiſhing Witneſſes beforehand,
fo I would have every one fatisfied; there-
fore take the Articles one by one, and ac-
cording as you fhall find what your Mem-
bers may fay for the Truth, you may be in-
duced to proceed or not.
Sir Tho. Osb. The Houfe ought to have
fomething to induce their belief, which they
have had from ſeveral Members, and I know
how fome will be made good.
Sir Tho. Littl. What Article Members of
the Houſe do not offer you matter to in-
duce you to believe, you may lay it aſide;
therefore hear what fhall be faid and pro-
ceed accordingly.
Mr. John Tr. You connot expect Witnef-
fes will appear before you, Lords will not,
nor can you expect Commoners fhould; for
when you are up and gone, nothing can pro-
tect a Commoner if this Information be
not Jndicial.
At laſt the Queſtion was put whether to
refer it to a Committee.
Yeas, 128.
Noes, 194.
322.
Then
(2x)
Then the firft Article was read to fee
what would be faid to induce the Houſe to
Impeach.
The First Article read.
Sir Rob. Hom.2 Heard from Perfons of
Lord Vaugh. Quality, That it would
be proved.
The Second Article was read.
Lord St. Joh. Períons of great Quality
have affured him to make it good, and if
they perform not, he will acquaint the Houſe
who they are.
The Third Article read.
Mr. Ed. Seym. Sufficient Perfons will
make it good, with this Addition, When
he received the Money, he ſaid, So long as
the King is King, and I Lord Chancellor, the
Patent will stand.
The Fourth and Fifth Articles read. -
Sir Rich. Temp. Divers have undertaken
to make them good, if they do not I will
Name them.
About the receiving Money of Vintners.
"
C 3
Six
( 22 )
Sir Rob. C--r. That he knows who will
prove it.
About his getting a great Eftate fo fud-
denly.
Mr. Ed. Seym. I fuppofe you need no
proof the Sun fhines at Noon-day.
Sir Tho. Litt. The matter of Fact in the
Article is eaſily made out, for his Place as
Chancellor could not be worth above 4 or
5000 1. per ann,
About introducing an Arbitrary Government
in the Plantations.
Sir Tho, Litt. 2 One Farmer and others
Sir Tho, Osh. S came from the Barba-
does to complain of it, and lodg'd their Pe-
tion in this Houfe, but were Impriſon'd
that they might not be heard.
About frustrating Proposals for preſerving
Nevis, &c,
Sir Char, Wheel, My Lord Chancellor on-
ly oppofed it.
About holding Correfpondence with Crom-
wel.
Mr.
(23)
Mr. Swinf. That is Pardon'd by the Act
of Indempnity.
Mr. Vaugh. The Committee were aware
of that, but the Defendant may plead it,
and prove that he is not Out-law'd.
Sir Char. Wheel. I want not clearly to
prove it.
Sir Rob. How. For fuch fecret things as
thefe, he ought to plead, notwithſtanding
the Act of Oblivion, that the World may
know who are undiſcern'd Enemies.
Mr. Hamd. It is not only an A&t of Par-
liament, but Oblivion; and no Man ought
to be fo much as Accuſed for what was
done before.
Mr. Vaugh. If the Pardon be general, the
Judges and you are to Note it, but if it
hath Qualifications (as that A&t hath) they
are not to Note it; for you muſt ſay there
is no Indictment or Outlawry against him
(for fuch the Act excepts) or the Article
is to ſtand.
Then the Act was read,
Mr. Swinf. The Claufe for Pardon is Ab-
folute, and any Man accuſed, pleading it.
ſhall not be Sued, nor his Fault mentioned,
C 4
and
(24)
and this is to Offences and Offenders;
and for thofe who betrayed the King be-
yond Sea (who are excepted) they muſt be
Profecuted within Two Years.
Object. You will fay, he may plead that
Act.
Anfr. By the fame rule, any Man whọ
committed a Fault, during the Troubles,
may be put to plead it for Pardon.
Serj Mayn. We profefs that there ſhall be
Candour in onr Proceedings, Do we there-
fore believe this great Man is Out-law'd?
If not, how fhall we accufe him of what we
believe not true.
Mr. Vaugh. When I am fatisfied of a thing
I am not aſhamed to own it; I find now,
having peruſed the Act, that it is within
the Claufe. The Indempnity is general,
and he is within it if not excepted, the Ex-
ception reaches thofe who have held Intelli-
gence with the King's Enemies, fo as they
be Profecuted within two Years, this he is
not, therefore is clear.
So upon the Debate, the Article was ex-
punged the Paper without a Vote.
About the Sale of Dunkirk.
Sir
(25)
Sir Tho. Osb. A great Lord told me that
the Earl of Clarendon had made a bragain
for Dunkirk three quarters of a Year before
it was known.
About Sealing Dr. Crowther's Patent.
Mr. Street. The King gives the Living to
Crowther, in the Grant is a miſtake of a
County, Crowther finds the miſtake, and Pe-
titions the King to amend it, the King
calls for the Chancellor and Seal, and in the
King's preſence it was amended and Seal-
ed.
Sir Tho. Littl. The Crime feems as great
as a Chancellor could commit; the King
was to prefent by ſuch a day, or not at all,
the Error was found after the day, ſo that
the King (by Act of Parliament) had loft
his right. The Chancellor did alter the
Patent, and the Record was fetch'd away
by one of the Chancellor's Servants, and
brought back rafed, and altered, which
might be done (and in other Cafes is done)
where a word only hath been miſtaken; but
that is in Caſe of fomething perfectly in the
King's Power, and to fave new fealing; but
here could be no new fealing the time be-
ing elapfed: It was to throw another Man
out of his Freehold, and is a great Crime.
About
(26)
About drawing Mens Lands into Queftion.
Mr. Thom. I fhall be able to make it
out.
About Quo Warranto's to Corporations.
Sir Tho. Litt. This is fo Publick a thing,
that it need not be proved.
- Abont the Settlement of Ireland.
Sir Rob. How. I doubt not but it will be
made out.
About Forreign Treaties.
Sir Tho. Litt. This will appear by the
Treaties themſelves, putting us in hopes
of Peace, and fo hindering the Fleets fet-
ting out.
About Miscarriage of the War.
Mr. Thom. I want not Perfons to bring
to bring to make it good.
Sir Tho. Litt. Sir Edward Sprag defires
Money to give an Intelligencer, and has it:
Sprag brings the Intelligencer to the King,
the King commands him to meet him at the
Chancellors, there he met the King, and }
then Order was given to divide the Fleet.
Mr.
1
1
(27)
Mr. Marvel Charged Mr. Seymour with
faying in his Accufation, That the King
was infufficient for Government, which is
now omitted in the Charge, and defires he
may declare where he had it.
Mr. Seym. The Party that told me at
firft, differ'd fomething afterwards, there-
fore I rather withdrew it than to trouble
with uncertainties; but a Gentleman
in the Houſe can give you farther fatisfacti-
you
on in it.
Sir John Den. A Peer of the Land heard
the Earl of Clarendon fay in a Coach, That
the King was an unactive Perfon and indif-
poſed for Government: This will be made
good.
Upon Debate it appearing probable that
theſe words were fpaken before the Act of
Oblivion, it paffed over.
About the Customes.
Sir Rich. Temp. I have been Informed that
he had a fhare for under-letting the Cu-
ftomes and 40000l. Bribe for getting pre-
tended Debts from the King.
Sir Tho. Osb. The Earl of Clarendon faid,
Bid who would for the Cuftomes, none
fhould have them but the Old Farmers.
Mr.
( 28 )
Mr. P---n. Having gone over the Arti-
cles, we should know where and when the
words were ſpoken.
Mr. Seym, That will be a way to Suppreſs
the Evidence, I hope you will Impeach him
at the Lords Bar, and in due time produce
your Witneſſes.
Mr. Pa--n. You must refolve to Impeach
him of Treaſon, or Mifdemeanour, and
name it accordingly.
Sir. Ed. Walp. You ought firft to give a
Title to your Impeachment; for if it be
for Treafon, you will move for Commit-
ment; if it be for Impeachment in general,
not.
Mr. Colem, What is laid before you is
only by Hear-fay, but no Affurance that
it will be made good; only that if they
who reported it do not make it good, you
fhall know who they are. In the Earl of
Strafford's Cafe (the worst of Prefidents)
the Houſe proceeded not till one fpake
in the Houſe upon his own Knowledge, and
another engag'd his Reputation to make it
good.
Sir Rob. Atk. Thofe who have given
you inducement to proceed, do it at third
hand
•
(29)
hend, and tho' they may know the Credit
and Impartiality of thofe that told them,
yet you do not.
Sir Tho. Litt. A Queftion fhould be put,
Whether this Houfe hath fufficient induce-
ment to Impeach; Afterwards Confider
what the Title fhall be, then appoint a
Committee to frame Articles.
Which Queſtion being put, was carryed
in the Affirmative.
Then Adjourned.
November, 9.
The Firſt Article read.
Sir John Goodr. Treafon ought to termi-
nate in an Overt-Act, which defigning is
not, therefore pray read the Statutes.
-
Thereupon fundry Statutes were read.
25 Ed. 3.
1 Hen. 4. Cap. 10.
1 Ed. 6. Cap. 12.
I Q. Ma.
13. Car. 2d.
14 Car. 2d. Cap. 29.
Mr.
(30)
Mr. Stew. Declared it to be tranfcendant
Miſdemeanour but no Treaſon.
Mr. Vaugh. Two Queſtions will be confi-
dered, One, whether what's Charged in the
Article was Treafon in Common-Law be
fore the 25 Ed. 3. That fo we may under-
ftand the nature of Treafon; The other,
Whether by any fubfequent Act it is made
otherwiſe.
Mr. Wall. The Advice given to the King
I look upon to be this. To eſtabliſh a New
Government, To be Govern'd by Fanizaries
inſtead of a Parliament, To have a Divan
and a great Miniſter of State, a Vizier-Baf-
Jau, a worfe Plot than that of the 5th of
November; There, if the Lords and Com-
mons had been deſtroyed, there would have
been Succeffion, but here both had been de
ftroyed for ever. Then in order to the
Debate, confider how the Law looks on it ;
for tho' we may accufe on lefs Evidence
than ſhe may Judge, yet we must be Cau-
tious in naming the Crime: What there-
fore doth the Law call this before 25 Ed. 3?
Then look whether the power of Conftru-
&tive Treafon be taken away fince.
Sir Fra. Goodr. The matter concerns Life,
therefore we ſhould be wary in the Exerciſe
of Legiſlative Power; you are not tyed to
Rules,
( 31 )
Rules, but you are now a ſtep towards Ju-
dicature; The Common-Law is Jus non
Scriptum, and tho' every Treafon includes
Felony, yet not every Felony Treafon. 25
Ed. 3. There is a Declaratory Power, whe-
ther a thing be Treafon, or other Felony,
not whether it be Treaſon, and conld not
be declared Treafon if not Felony before.
In Cafes Capital at Common-Law they
might declare it Treafon, but in Cafes not
Capital at Common-Law, they never exer
cifed their Declaratory Power.
Among other things that Statute declares
falſe Coin❜d Money to be Treafon, which is
but Felony at Common-Law; afterwards
Money being imported, which was not ac-
cording to the Stamp, there was no Puniſh-
ment for it, but as a Mifdemeanour: There-
fore 4 Hen. 7. Proviſion is made againſt that
Practice, and it is made Treafon, but if the
Parliaments Declaratory-Power could have
Made it Treafon, what needed a Statute on
purpoſe? So that I cannot think the Arti-
cle before you is Treafon, it not coming
within the words of the Statute.
Mr. Vaugh. I fhall ſpeak to the firſt Que-
ſtion, whether this Article was Treafon at
Common-Law; and firft remove what fome
have alerted, Namely, That nothing is
Treafon but what was Felony before. 2 s
Ed. 3. where petty Treafon is fpoken of,
the Wife killing the Husband' &c. Theſe
words
( 32 )
*
words follow, If hereafter it come into Que
ſtion whether there be another Treaſon, it
ſhall not be refolved by the Judges, till the
Parliament determine it; For in petty
Treafon, if it be Treafon, it muſt be Felo-
ny, becauſe there is killing.
Then comes more, whether raifing, &c
and it follows whether it be Felony or Tref
paſs; And the thing it ſelf is more ſtrange:
None ever doubted, but that all Treafons
of 25. Ed. 3. was Treafon before, and was
fo refolved 12 QEliz. That by that Act
the King declares what ſhould be Treaſon;
Namely, If any Man Vitiates the King's El-
deft Daughter, &c. But by this Doctrine if
it were not Treafon, what was it? Either
Adultry or Fornication, when it is only the
Eldeſt Daughter, not the Youngeſt.
It hath been in all Ages a Reputation to
Perfons who have been Councellors to Prin-
ces according to Emergencies to give Coun-
cil to extricate out of danger. and there-
fore hard to tax a Miniſter of State in a
Cafe which he acquaints his Mafter with;
for there can be no Treafon but againſt the
King himſelf.
I will fhew you what I mean. It is true this
is a Treafon which cannot arife from Mif-
prifion, becauſe it was fpoke to the King
himſelf; but as a Miniſter of State he has
liberty to give Councel for the King's ſafe-
❝y. If a Perfon be able to Inform his Mafter
what Alliances are good for him, it his du
?
( 33 )
ty; fo what Trades are profitable, what
not, &c. So where Men or Money are want-
ing, to adviſe how to extricate is commen-
dable; but when it comes to this, that he
breaks in upon the Laws, invading the Con-
tract between the King and his Subjects, it
will be as if a Man advifeth, That if the
King wants Money, he may fet up High-
way
Men to take it, and bring it to him,
and fo the skilfulleft for breaking the Law
ſhall be eſteemed the beſt Councellor; there-
fore, whoever thinks to ſerve his Prince by
breaking the Laws, he is fo far from a
wife Man, that he is the higheft Criminal.
c. then for the Nature of the thing, the
Treafons declared 25 Ed. 3. were declared
by the King's Commiffion, and the Trea-
fons were of that Nature which concern'd
Councel, &c. they were not like to be de-
clared, and there is a paffage in Glanvil,
called Seductio Domini Regis, that is, de-
ceiving the King to what is pernicious to
Him, and his People.
Now fee the Nature of this Crime; if a
Man Councel his Prince, and practice it fuch
a way as ſhall render him Prince of Confci-
ence, who hath broken his Oath, and all
this to his Injury, fo that he hath no Affent
to it. Compare this with any Treaſon of
25 Ed. 3. confider it: Here is a perfon who
gives the King Advice, which at once must
make his People fee he hath broken all his
Faith to his Kingdom (and is not the Coun-
D
cel
(34)
cel of Governing by an Army fuch ?), all the
Laws broken, to keep which the King has
Sworn, and this the King put upon tho' not
inclin'd to, I affert not this upon the Earl
of Clarendon, but upon the Article, who
doth this, Councels the higheſt Treafon a-
gainſt the Common-Law, becauſe others
are fo; but if a Man will pretend to give
Councel, wherein many ſhall have no bene-,
fit by the Law, he breaks all parts, and
therefore I think this Councel was Treafon
at Common-Law.
Mr. Colem. The Queftion is, Whether it
be in your Power to declare this Article
Treafon by 25 Ed. 3. If he advifed an Ar-
my againſt the King's confent, it is againſt
the Statute; but I fuppofe that the Expref-
fion in the Article was Advice to the King
in Aid of his Government. Your Enacting
Power is a kind of Omnipotency, but in a
Declaratory Power you can declare no
more than is committed to you, and with
fafety to the Subject you cannot declare this
Treafon; Then what must be our Rule in
Declaring I dare not fay: For fcarce any
Man can tell what was Treafon before 25
Ed. 3. was made to bring things to a Cer-
tainty, and what was uncertain to them
who made that Law can be certain to us.
now. As the Judges can declare no other
Treafon, fo in your Declaratory Power
neither can you declare Treafon unleſs
there
( 35 )
there be Refemblance to fome other like
Cafe: The Advice faid in the Article to be
given the King, cannot be within that Sta-
tute, unlefs the Councellour muſt run the
hazard of his Advice.
Mr. Vaugh. The greateſt Declarations
of Treafons which ever were, equal not
thoſe 22 Rĩch. 2. in Nottingham Caſtle: The
Judges are called to deliver their Opini-
ons upon their Faith, and they declare the
Acts to be Treafon, becaufe Felony be-
fore, and tho' fome of them were hang'd
for it, yet the Parliament declared the
fame Thing.
Seri. Mayn. Was, what is mentioned,
Treafon by the Common-Law, tho'fo faid
by the Lords? And what was fo declared
was repealed, H. 4:
Sir Tho. Litt. Pray refolve whether it
was Treafon by Common-Law; and if fo,
when made fo. Some think not, becaufe
they find not the Parliament declaring
them Treafons, as being fo at Common-
Law, and that that Statute was made to
bound them, but that was only to bound
nferior Courts, not themfelves; for the
Parliament makes not a new Crime and
then Condemns it, but the Crime was
efore, and the Parliament declares it.
។
D 2
Sir
1
(36)
Sir Ed. Thur. Hath the Parliament decla-
ratory Power now? Yes, but it muſt be by
King and Parliament, fo it was in the Cafe
of the Genoua Ambaffador. The Judges
would not conclude the Articles Treafon,
nor would the Lords alone; and if you
come to an equal declarative Power with
them, you muſt examine Witneffes, or go
by a Bill.
Serj. Charl. The Queſtion is, Whether it
be Treafon by the Practice of England, the
Common-Law is the Cuftome of England,
and the ufuage is grounded on Preſidents, I
know not one Prefident where Words or
Intentions were Treafon at Common-Law,
for they are not Treafon where no Act
follows.
Sir Rich. Temp. The Article is Treafon
by Common-Law, and Judges have recourſe
to Glanvil, &c. Who fay, that giving Ad-
vice to overthrow the Realm is Treafon by
Common-Law.
Serj. Mayn. The Queſtion is whether he
ſhall be Impeached of Treafon upon this
Article? If you go to Treafon at Common-
Law before 25 Ed. 3. you fly out of fight,
for the word Seductio was foon after called
Seditio, Seducing, but not faid to what; nor
were thoſe Authors ever reputed of Au-
thority
(37)
thority: It's true they are fometimes quot-
ed for Ornament, but not Argument, and
not one Cafe in one hundred of Glanvil is
Law; but when a Cafe comes that is the
Sheet-Anchor of Life and Eftate, you
fhould be wary; for by Wit and Oratory
That may be made Treafon which is not,
and this which is a great Crime, ought not
becauſe great, to be made Treafon.
Object. But it will be faid, levying War
againſt the Law, is againſt the King, and
here was an intent to alter the Law.
Anfm. True, yet a deſign no levy War
is not Treafon within the Statute, here is
nothing of Act, but Words to that end; If
a Councellor gives bad Advice, it makes it
not Treaſon, but by a Bill it may be made
what you pleaſe. By that Statute of 25
Ed. 3. are more Treafons than are metni-
oned; for it faith if any Cafe happen, the
Judges fhall ſtay till the King and Parlia-
ment hath declared, fo that there is a Pow-
er, but the Modus is the Queſtion, whether
by Impeachment, or Bill; you may the lat-
ter; not the former. It, was done, but you
have Repealed it, and have faid None of
which pretended Crimes are
*Of Strafford. Treaſon, and what was pre-
tended against him? That he had Trai-
torously Endeavoured (which is worſe than
délign'd) to alter the Government, &c.
Noir
D 3
, (.38)
Now where is the Difference? Here is ad-
vice to Raife an Army, there to ufe an Ar-
my Raifed, and thefe you have called pre-
tended Crimes, and no Treafon, which is nor
Comprehended by a Law; but to Impeach
as a Treafon, and yet the thing No Treafon
is ftrange. In this Houfe, other then by
Bill, you have no Power; you carry your
Impeachment to the Lords, and they may
give Judgment without coming back to
you; declaring by Bill is by way of Judg-
ment, but, as an Impeachment, is only an
Accufation: So that whatfoever the Confc-
quence is, the Lords judge it, and it never
comes back to you, and if you go by Bill
you make it Treafon, ex poft facto.
*
Mr. Vang. Concerning what you have de-
clared about Straffords, that this Cafe is, if
not lefs, equal to it, and you have declared
that not one Charge aganft him is Trea-
fon is true thus far, when that Act was
made I repaired to it, becauſe there were
fome Things which fhould not have paffed
fo, if there had not been fomething to
fecure fuch Charges as thefe; for there is
no expreffion of any Particular Charge, but
that the Charge againſt the Earl of Strafford
was not in the particular, Treaſon, and in
the Clofe of the Bill, it is faid, that the whole
Proceeding fhall be taken away, and if fo,
no Man ſhould ſpeak againſt the Particu
fars, but look on it as Repealed.
Then
?( 39 )
Then this is faid to be levying War, and
its true, it muſt be Actual, and fo not with-
in the Charge. And the Charge againſt
Spencer was for Councelling the King, &c,
and is called levying War againſt the
Kingdom, and the Judgment againſt him
was but Banifhment; becauſe the Sen-
tence was mitigated at the inſtance of the
King.
And for Councel, tho' Councel is given
but in Words, yet Words are more than
Councel, and are an Action, otherwiſe a
Councellour is Sworn to nothing.
Ι
But it may be thought I have not dealt
ingenuouſly with the Houſe, than which I
abhor nothing more; when the Cafe of
Strafford was before the Lords, I was of
opinion the Parliament had no Declarative
Power left, becauſe I Hen. 4. there was an
aboliſhing of all declared Treaſon, and
that no Treafon, for the future,fhould be fo,
and then the Treafon about the Genoua Am-
baffadour was gone, and all declared Trea-
fons were gone 1 Hen. 4. and no Statute
hath recovered them, and if all Actual
Treafons were taken away I Hen. 4. or if
not then, i Ed. 6. then what doth the firſt
of Q. M. do, unless it take away all de-
claratory Treafon?
D 4
Upon
( 40 )
Upon the whole, the Queftion was
whether to accufe of Treafon upon the firſt
Article.
Yeas, 103.
Noes, 172.
275.
November, 1I.
The Second Article was read.
Mr. Pr--n. Let the Act made by you a
bout defending the King be Read, becaufe
it limits Profecution to a Time,to ſee if this
be within Time.
Mr. Vaugh. In Things wherein there is
a publick Defaming the King, it becomes
no Man here to defend the Perfon accuſed,
if the Charge be not proved, let the Party
himſelf plead it; you had that which in-
duced you to Impeach him, and have de-
clared not to Impeach of Treafon upon the
firſt Article: And if any Man will add to
the reſt of the Articles he may, but you
ought to accufe.
Mr. Sollicitor. None accufeth but for Ju-
ftice fake, and ſhould be glad if the Party
accufed prove himſelf Innocent. There is
a Duty to the King, and to Truth, and it is
not fit that an Article of this Kind,brought
into the Houſe, ſhould be laid by, upou pre
tence that the time is elapfed; for the Crime
is
( 41 )
is more than what is mentioned in the A&
made by you; it is an Offence at Common-
Law, and if it be profecuted by Fine and
Impriſonment, no time is limited.
The Third and Fourth Articles read, and
Voted.
Mr.Vaugh. Your reading every Article
is needlefs, unleſs it be to fee whether any
one may be Charged as Treafon, for if one
may be objected againft, fo may all as to
Mifdemeanours.
Fifth Article read.
Sir John Sh--w. The old Farmers had not
the Cuftomes till others faid they would
give no more, and they had no reason to
thank the Chancellour, becauſe they gave
more than others: And I declare upon my
Life I know no reward given him.
A
Sir Tho. Litt. It appears by the Farmers
Confeffion, that they had it 50000 1. un-
der, befides time of Payment, which was
30000l. more.
Mr. Seym. You are at liberty to receive
Objections to the Articles, but tho' others
bad more, they were told they ſhould not
have
( 42 )
have it, and had about 1000l. each given
them to bid no more.
Sixth, Seventh, Eight and Ninth Articles Read
and Voted,
The Tenth.
i
Mr. Vaugh. This is an Article of an high
Nature, Dunkirk was then as much a Part
of His Majeſty's Dominions as Ireland, and
if the Sale of it be nothing, I know not
what you would think of it if England
ſhould be Sold, you lately debated whether
on the firſt Article he fhould be accufed of
Treaſon, and found by the Statute of 25
Ed. 3. he could not, tho' it was abfolute
Treafon at Common-Law, and its reported
abroad that I ſaid that the Right of the
Parliament in declaring Treafon is taken
away, which I did not, for there are Trea-
fons not mentioned in that Statute. There-
fore it provided that the Judges ſhould not
upon any one Treafon proceed to Judge,
untill declared before the King and Parlia-
ment, and what is fignified by it? If we
think before the King,Lords,and Commons,
that is impoſſible, for how can the Com-
mons poffibly declare before the King and
Lords, nor was that the Cafe, but this, that
there is the ultimate Power of determi-
ning what the Law is in a doubtful Cafe.
In Writs of Error let them pafs from Court
to
( 43 )
to Court, at laſt they come to the Lords,
24 Ed. 3. Ifthe Judges cannot refolve what
the Law is, it is to be brought thither,
that is, where it is queftionable, but that is
not in the House of Commons, any more than
in a Writ of Error: How than is the Cafe
here? If a Queſtion be whether a Thing is
Treafon, or not, it fhall be Refolved where
the Law ufeth to Refolve, that is, before the
King in Parliament, that is in the Lords
Houfe. Had the Words of the Act been
thefe, there fhall be no Proceeding untill
Refolved by the King in the Lords Houſe,
and Suppoſe that Claufe taken away, That
Treafon fhall not be Refolved, but fuppofe
it ſhall not be declared otherwiſe, doth it
follow it is taken away? No, if you charge
Treafon which is not within the Statute,,
it is another Thing, but I faid not, there is;
no Treafon at Common-Law.
Mr. Sollicitor, There was a great Miſchieff
in the declaring Treafon by Parliaments;
for Mortimer was made a Traitor for in-
croaching upon Royal Power, which every
Man, who incroacheth upon any Power,
doth. Hence the Commons Petition'd the
King to explain what incroaching upor
Royal Power was, and when no Anſwer
could be gotten, to it, 25. Ed. 3. They Pe-
tion'd it might be declared certainly, and
fo Treafons were enumerated, and if the
Judges be in doubt, it is provided that
the
(44)
the King and Parliament fhall firft de-
clare it.
Declaration in Parliament, is a Declara-
tion before the King, Lords, and Commons.
Would our Anceſtors leave what is to be
Refolved Treafon to the Lords, and them-
felves have no ſhare in it? And Talbots be
ing declared Treafon by the Lords is faid
to be no Treafon by Judge Cook, becauſe
the Commons had no hand in it, there is no
Treafon in Common-Law, becauſe there
can be no Treafon where there is no way
to Judge it, which is not at Common-
Law.
Mr. Vaugh. When the Law is made un-
certain the Lords muft declare it, it ap-
pears there were Treaſons at Common-
Law not mention'd 25 Ed. 3. It is one
Thing for a Matter to be Treafon before,
and the Parliament to declare it; another,
for the Parliament to make a Thing Trea-
fon which was not.
Sir Will. Lewis. I defire to be Refolved
whether Dunkirk was annexed to England,
becauſe a Bill to that end was carryed, but
not Paffed.
Mr. Waller. To fhew that Dunkirk was
annexed to England, confider we were Paf-
fing a Bill for 1200000l. But when we
were making a Preamble to the Bill, we
were
( 45 )
were to ſeek for Reafons for giving the
Money, feeing we had no War, fome faid
to keep Dunkirk, but were told we fhould
take heed of looking upon it as annexed
unto the Crown; but it was replyed, Dun-
kirk was look'd upon as a Frontier Town,
and accordingly noted in the Bill. There-
fore the Sale of it Treafon.
Mr. Coven. Had it been part of the
Crown of England, what needed a Bill to
make it fo?
Mr. Pr--n. It cannot be Treaſon, becauſe
Sold by the King's confent.
Mr. Vaugh. If the King agreed to it,
doth it follow, that he, who adviſeth the
King to a Thing deſtructive to his King-
dom and King, is not a Traitor? If any
part of the King's Dominions may be alie-
nated, eſpecially when a Parliament is Sit-
ting, for they concurring, it may be alic-
nated, by the fame Reafon the King may
alienate Ireland or England too without the
Parliament; For by what Act of Parliament
doth the King hold Ireland or England? It
is by Acquiſition; I fay not Tangier, for that
was part of his Portion, and is his own: But
Dunkirk would have been the Kingdoms if
not thus difpofed of, and tho' it might have
been alienated with the Parliament, it could
no more without, than England or Ireland.
Mr.
( 46 );
Mr. Ed. Hart. The Act of Parliament
for annexing was not This Parliaments,but
of the Convention, and came in thus; the
King was pleaſed to tell me, that the Spanish
Ambaffadour might prefs him to part with
it, which he had no mind to do; therefore
he would have a Bill to annex it to the
Crown, which fhews it was the King's Will
to have it annexed, accordingly this Parli-
ament paffed it, and Dunkirk might have
been as ufefnl as Calice.
At length this Article was paſſed by,
without determining whether Treafon or
not.
Eleventh, Twelfth, Thirteenth and Fourteenth
Articles read and Voted.
Fifteenth Article read,
Lord Vaugh. I brought in this Article
His Betraying the King's Councels was to
the French King during the War, and that
in the ſecrecy of State, which was the oc-
cafion of the late Miſchiefs.
Sir Tho. Osb. That is direct adhering to
the King's Enemies, and fo it is Trea-
fon.
Mr. Sollicit. This muſt be Treafon if you
have any inducement to believe it.
Sir
1
( 47 )
Sir Rob, How. I have heard it from an
Eye-Witneſs who told it me, and added
that we are neither to be truſted nor dealt
with, who were ſo betrayed.
Serj. Mayn. Betraying the King's Coun-
cel to his Enemies is, doubtlefs, Treafon,
Correfponding is another Thing, Betray-
ing muſt be without the King's Knowledge,
otherwiſe it is but delivering the King's
Words to his Enemies?
Sir John Bramp. Did this Information
come from a Subject, or from one of the
King's Enemies?
Sir Rob. How. I would not have brought
you Information from one of the King's
Enemies, nor did I ever converſe with them
during the War.
Coll. Birch. We cannot accufe of Trea-
fon, except it be faid, Betraying the King's
Councel, or Correfponding with his Ene-
mies.
Mr. Vaugh. You have declared that you
have had inducement to Impeach, and
ought to put the Queſtion, whether on
this Article he fhall be Impeached of
Treafon.
Mr.
( 48 )
Mr. Sollicit. To betray the King's Coun-
cel, taken generally, is not Treaſon, for it
may be to the King's Friends, but to his
Enemies it is, If the Article be fo.
Lord Vaugh. Let it be put betraying His
Majefty's fecret Councels to his Enemies
during the War.
Then the Queſtion was put whether theſe
New Words delivered by the faid Lord
Vaugh. fhould be added.
Carryed in the Affirmative.
Sir John Holl. Was this Information given
by an Enemy or by a Subject?
Mr. Vaugh. It muſt come from a For-
reigner, or you could not know it, may not
the King have from a Forreigner a diſcove-
ry of Treafon againſt him; The end of
queſtioning it muſt be to know the Man,
for it might as well be asked whether his
Beard be red or black.
Sir Tho.M--rs. The words are difcovered
not betrayed, and diſcovering may be with
the King's confent.
Lord Vaugh. Add the word Betraying,
for fo I meant it.
Seri
( 49 )
Serj. Mayn. They who give the Informa-
tion fay not they had it from more than
one Witneſs, which Stat. Ed. 6. requires,
and only one of them Names the Earl of
Clarendon
Mr. Seym. This exception is proper to be
made before the Judges,
Then the Question was put.
Whether to Impeach of Treafon on this
Article.
Teas, 161.
Noes, 89.
250.
Sir Tho. Litt. That an Impeachment of
Treafon and other Crimes and Mifdemea-
nours be carryed up to the Lords againſt
him by Mr. Seym:
Serj. Mayn. For Mifdemeanour he may
have Councel, not for Treafon: There-
fore fo diftinguiſh the Charge, that he may
have Councel,
Refolved, That a Charge be carryed up.
Refolved, That the Speaker and the whole
Houſe carry it.
F
Nov, 12.
(50)
Novvember, 12.
It being confidered that if the Speaker go
up with the Charge, fome difpute might a-
riſe about carrying the Mace and otherwiſe.
It was Refolved, That Mr. Seym. carry it.
Accordingly he went; where at the Bar
of the Lords Houfe, the Lord-keeper Bridg-
man being come to the Bar to meet him, he
delivered himſelf to this purpoſe.
My Lords,
TH
HE Commons Affembled in Parliment, ha-
ving been informed of feveral Traiterous
Practices, and other high Crimes and Mifde-
meanours commited by Edward Earl of Cla-
rendon a Member of this Honourable Houſe,
have Commanded me to Impeach him, and I do
accordingly Impeach him of High-Treafon and
other Crimes and Mifdemeanours in the Name
of the faid Commons, and of all the Commons
of England: And they have farther Com-
manded me to defire your Lordships to Sequester
him from Parliament, and to Commit him to
Safe Cuftody, and in convenient time they will
exhibit Articles against him.
November, 15.
The Lords fent down to defire a Confe-
rence in the Painted Chamber.
At which the Earl of Oxford delivered a
Paper in writing (without any Debate) the
Contents whereof were to this effect.
The
( 51 )
The Lords have not Committed the Earl
of Clarendon, becafe the Accufation is on-
ly of Treafon in general, without charging
any thing in particular.
Mr. Garra. I had rather the Houfe
fhould loofe the Punishment of this Man,
(tho' a great Offender) then that this Houfe
fhould loofe its priviledge; for if this
Houſe may at no time Impeach a Lord with-
out giving in particular Articles, it may
fall out to be at a time (as in the Duke of
Bs Cafe ) where a great Man by his
Intereft with the King procured the Dillo-
lution of the Parliament, and then the Ac-
cufation falls.
Mr Vaugh. Either you can juftific your
Proceedings, fo as-to fatisfie the Lords what
you have done, or you cannot; you muſt
name a Committee as well to confider what
you are to do if your Reafons fatisfie not,
as to draw thofe Reaſons.
Mr Sollicitor, Without doubt this Houfe
was not mistaken in demanding that the
Party accufed for Treafon fhould be com-
mitted, That is, that Treafon is worthy of
Commitment; and you can but find Prefi-
dents that Perfons have been accuſed of
Treafon, and thereupon have been com-
mitted: But the Cafe is this, Treafon is an
Offence, for which Bail cannot be taken;
E 2
the
(52)
the Lords tell you not they will, or will not
Commit: But it is true, Perſons hav been
Committed for Treafon, and Perfons accu-
fed of Treafon Judges may Commit, or
not.
Confider this Law. Let the Crime be
what it will, an Impriſoning till the Charge
it given is but an Imprifoning to fecurity,
not to Puniſhment; otherwife the Law is
not Juft, and if the Judges of the Kings-
Bench have a Judgment of Diſcretion, whe-
ther to Commit or not; can we wonder
that the Lords have not Impriſoned, till
they know the Article, when they have
Judgments of Diſcretion tho' they knew it?
You may find Preſidents, but it is not an
Argument it muſt always be fo: But as the
Judges have a Latitude much more then the
Lords, the Impeachment from the Com-
mons of England is properly the King's Suit,
for there is no Treafon but againſt him, and
if the Judges may Bail in that Cafe, may
not the Lords. But you are not told he
fhall be Balied, but they defire to know
what his Crime is, and then you ſhall know
their Anſwer, the Refolution feems rea-
fonable, having gone no farther, I cannot
except againſt it.
Sir Tho. Litt. The Long-Parliament had
fome good Preſidents which we are not to
caft away leaſt we ſmart for it.
Refolved, To Refume the Debate to Morrow.
Νου.
( 53 )
Nov. 16. Mr. Vaugh. The Lords do not
fay Commitments fhould follow becauſe
Treaſon is Bailable by the Kings-Bench, its
true, the Kings-Bench Bails for Treafon,
but how? If Perfons be brought thither
for Treafon directly there is no Bail, but
when a Commitment is by the Councel Ta-
ble for fufpition of Treafon, then if the
Matter fall not be to what was expected
they give notice to take Bail, elſe the great
Article of the Great Charter, Mamely that
Juſtice ſhould not be delay'd nor denied,
would be to no purpoſe; and in fuch a
Cafe a Man may be in Prifon for ever. On
the other fide, what is the Cafe of Commit-
thing for Treafon? when a Perfon is Com-
mitted by the Councel-Table, they fay,
thay do no more but by ſpecial Command
of the King, and that is the ground of his
Committing, and were not this fo, what
would follow? Intelligence would be given
of a Treafon difcovered, wherein many
might be concerned, and if they who Com-
mit fhould Commit with the Treafon, all
the Complices would efcape, and there-
fore fometime they make it Treafon Gene-
ral. Then for the Cafe, before you have
gone up with a Charge of Treafon general-
ly, which is to the Lords a Warrant fuffici-
ent for Commitment,fay they,we will know
the Particulars; then will not the fame in-
conveniencies follow, if other Perfons be
concerned, and fo the danger of all ex-
pofed upon the nicety? E 3
If
(54)
If a Buſineſs comes before this Houſe,
which concerns others, and may prove
Treafon, if we go to the Lords (for we
have not Jurifdiction except in Cafe of our
Priviledges) but yet are not ready to bring
up Particulars, and defire the Lords to ap-.
prehend fuch Perfons, would it be reafona-
ble for them to refufe it, there being no
inconvenience like to follow the doing it,
much the not doing it? I fay not to Commit
them, and we not profecute, for that is de-
Jay of Justice.
Qu. But why do the Lords refuſe?
Anf. Tho' I have great refpect to the
Lords, yet to clear fomething in point of
Priviledge, the Lords have the fame Privi-
ledge with us in point of Speech, their
Members, &c. as they are eſſential to paſs
Laws; but that great Priviledge which they
often affume as Peers, is as the King is
there preſent in the higheſt Court: How
then will it fall out in refpect of this Pri-
viledge? If the King be there, there be ma-
ny Things which the Lords as Peers cannot
pretend to for the King hath often fate
there not only in paſſing Bills, but in Judg-
ment. Had this Charge then come before
the King there, it had been reafon if the
King fhould have faid, I defire to know
what this Treafon is, we muſt then have
told it, becauſe he, whom it concerned,
required it, or if we defire Commitment,
he, who could Releaſe or Pardon him,might
fay,
( 55 )
fay, let him be Bailed. The Lords indeed
retain this Priviledge, but it is in the
King's Right, not as Peers.
Now we have carryed a Charge, if the
Lords Bail him, I know not what would
follow, for no Example can be given of it,
and I think they will not do it, if the King
do not direct it.
On the other fide, I would be glad we
might be no more troubled than is neceſſa-
ry, becauſe others are liftening what we do,
and think there is nothing in the Cafe:
Therefore I am not for delay, but fatisfy-
ing others that what we have done is not
barely for Impriſoning the Earl of Claren-
don,but for Juſtice; and if you go this way,
give the Lords the Reaſons why we fent
the Charge as we did, and yet keep up their
Priviledges, and declare fo to them.
But than we must go up with more than
that Head, on which we Refolved to Im-
peach of Treafon; for your Articles muſt
be fo formed as to make it a Charge fit to
be Anſwer'd for Time and Place, and that
Article hath ſomething of that which muſt
be penned fo as to make it more certain;
for the Article goes but thus, That there
was Diſcovery and Betraying of the King's
Councels to his Enemies, and if you leave it
there, thoſe who fcruple doing any Thing
becauſe particular Treafon is not mentioned,
will fay, you say he hath diſcovered and
betrayed Councels to Enemies, but as
羲
​E 4
me
( 56 )
55)
trust you not what is Treafon, but we will
know it, so we know not whom you mean
う
​by Enemies; for we may think them not ſa.
Therefore appoint a Committee to form
Articles.
Mr. Solicit, It is a great miſtake to ſay,
That the Power of the Kings-Bench to take
Bail for Treafon is no other but what is
aflerted, as if the Judges there had only
Power from Magna Charta. When a Man is
Committed upon fufpition of Treaſon, and
no Profecution follows, and the Party
bringing his Habeas Corpus, the Bench Bails
him becauſe he ſhould not lie there eter-
nally, it is not to be faid the Judges Bail
for Treaſons, ſeeing no Crime is produced:
For when a Man hath been accufed of Trea-
fon for Coining falfe Money and brought to
the Bar, the Judges have Bailed him not be-
cauſe they ought, but from the difcretio-
nary Power wherewith the Law trufts
them; they may Bail if they will, for no
other Judicature, but they, can Bail in that
Cafe for feeing Imprifonment before Try-
al is only that the Prifoner may be forth-
comming, if they fee there is no danger of
efcaping they may take Bail, for he is a
Prifoner when Bailed, and the Bail is his
Keeper; but there are few Cafes of this
kind wherein they will Bail; they have
fundamental Power to do it, placed
in them to preferve the Rights of the
Crown
( 57 )
Crown, and the Lords will not think them-
felves lefs trufted with the Rights of the
Crown then the Kings-Bench. Yet tho' the
Lords may Bail, they will not exerciſe their
diſcretion when there is a probable Truth
in the Impeachment; fhall we then refufe
this Intimation from the Lords? Who fay-
ing, becauſe they have not a particular Ar-
ticle of Treafon do not fecure, feem to im-
ply, that if they had they would, tho' they
night refufe. The Right of Bailing comes
not from an imaginary apprehenfion of the
King's fitting there, tho fome Kings have
fate there in Jndicature, but from their
Inherent Authority of being trufted with
the Right of the Crown: Let us do then
what becomes us, and not let the Impeach-
ment miſcarry upon a miſunderſtanding but
draw up the Article. But how is it poflible
to draw it as an Article which you expect
he ſhould be imprifoned upon? For your
Impeachment is in the Nature of an Indict-
ment, and muft contain fo much of Cer-
tainty as to put him to plead, that fo he
may not Demur.
How may it then be Circumſtantiated, fo
as that he may put to plead? if you do
it according to 25 Ed, 3. (for difcovering
the Thing's Secrets to his Enemies is within
that Statute.) The firft part of the Article
is not pleadable; for we muſt fhew how he
adhered to the King's Enemies, and wemuft
add what the Councel was that he betrayed,
eli
(58)
elfe he will deny to plead, and fay, I can a-
void it: Therefore confider what kind of
certainty this Article muſt have to make
him plead, for the other Articles,its enough
to fay them without proving Time or
Place, if the Facts were after the Act of Ob-
livion; but in Treaſon, the Matter muſt ap-
pear in the Indictment, for he hath liberty
not only to plead not Guilty, but to avoid
it: Therefore prepare the Article accor-
dingly.
Mr. Vaugh. What is Moved is to put you
upon an impoſſible Buſineſs, for an Article
preſented from the Parliament needs not
that Certainty, as if it were to be tryed at
the Kings-Bench.
Sir Tho. Litt. It is not for the Honour of
this Houſe to recede ſo eaſily from fuch a
Priviledge, for, befides the Earl of Straf-
fords Cafe, we have expreſs Preſidents for,
but none againſt us.
We have heard that
we muſt have no more Impeachments, be-
cauſe they are dangerous and tend to Re-
bellion. Confider the Arch-Biſhop of Can-
terbury's Cafe, Finch, Ratcliff, and others in
the Long Parliment, and we fhould not fo
eaſily part with them. William Delapool be-
ing commonly reported to be no true Man,
(which is a lefs Charge than Treaſon) deſired
he might acquit himſelf,and the Lords requi-
red no fpecial Matter before they impriſon'd
him,
( 59 )
him, and afterward he was accuſed more
Specially.
Sir Rob. Ark. In the Cafe of Anfelm Arch-
Biſhop of Cant. the Commons Accufed him
but the Lords did not Commit him, and
gave no other Reaſon for it, but that he
was a great Man, and yet afterwards he
was Condemned as a Traitor, tho' the
King reduced his Puniſhment only to be
Baniſhment. Tho' a Priviledge is much
fpoken of, yet I fhall never be fond of any
Priviledge which fhall Intrench upon my
Liberty as a Subject.
Mr. Vaugh. I hear it Objected, That as
you Charge a Lord generally, ſo may the
Lords a Commoner, but that cannot be;
for the Lords cannot caufe a Commoner to
be Committed tho' for Treafon, without
your confent: Therefore put a Queſtion,
whether a Committee fhall be named to draw
up Reaſons to juftifie what you have done.
Refolved, That the Question fhall be put.
Refolved, That a Committee shall draw
Reafons.
November, 18.
The Committee brought in their Rea-
fons.
Firf,
(60)
First, What can or ought to be done by
either House of Parliament is beſt known
by the Cuſtomes and Proceeding of Parli-
ament in former times; And it doth ap-
pear by Example, that by the Courſe of
Parliaments the Lords have Committed
fuch Perfons, as have been generally Char-
ged by the Houfe Commons for High Trea-
fon to fafe Cuftody, tho' the particular
Treafon hath not been ſpecified at the time
of fuch Charge.
Second. That a Commitment for High
Treafon in general, is a Legal Commit-
ment, and if the Party fo Committed bring
his Habeas Corpus, and the Cauſe of his Com-
mitment thereupon be returned for High
Treafon generally, he may lawfully be re-
manded to prifon by the Judges upon that
Return.
Third. If before fecuring the Perſon the
fpecial matter of the Treafon fhould be Al-
ledged, it would be a ready courſe that
all Complices in the Treafon might make
their Eſcape, or quicken the execution of
the Treafon intended, to fecure themſelves
the better there.
Fourth. If the House of Peers ſhould re-
quire the particular Treafon to be Aſſigned
before the Party Charged be fecured, they
leave
( 61 )
leave the Commons uncertain and doubt-
ful (and that from time to time) how par-
ticular they muſt make their Charge to their
Lordſhips fatisfaction, before the Offen-
ders be put under any reſtraint.
Fifth, The Commons conceive, that if
they ſhould defire the Lords to fecure a
Stranger, or Native Commoner, upon fu-
fpition of Treafon which the Commons
had of him, and which was by them under
Examination to be Evidenced to their Lord-
ſhips in due time; their Lordships in Juſtice
for the ſafety of the King and People would
ſecure fuch Perfon or Perfons, upon the de-
fire of the Commons,and in fuch Cafe there
would be no difference between a Lord and
a Commoner fo defired to be fecured.
Sixth, The Proceedings of inferior
Courts, between the King and the Subject,
or Subject and Subject, and the diſcretion
of Judges in fuch Courts is bounded and
limited by the difcretion of the Parliament
which truſt them; and 'tis not left to the
difcretion of the Judges in ordinary Jurif-
diction to give the King, or take from him,
inconvenient Power for the Subject, nor to
difpence the Law partially between Subject
and Subject for Malice or Affection; but the
difcretion of the Parliament, which is the
whole Publick, comprehending the King,
Lords and Commons (for the Kings pre-
fence
( 62 )
fence is fuppofed to be in the Lords Houſe)
is, and ought to be unconfin' d for the fafety
and prefervation of the whole, which is it
felf.
It cannot be malicious to a part of it
felf, nor affect more Power than already it
hath, which is abfolute over it ſelfand part,
and may therefore do for prefervation of it
felf whatſoever is not repugnant to natu
ral Juſtice.
}
Mr. Prynn I like not the firſt Reaſon, be-
cauſe it cannot be called a Cuſtom where
only one Parliament hath done it.
Mr. Swinf. The great ftrength lies upon
this firſt Reaſon, and is like to be a Pre-
fident; for exact Preſidents I find none, ex-
cept that of Michael Delapool, and in the
Long Parliament: But confider the reaſon
why there was no exprefs Preſident before,
and what was the Cuftom of Parliaments
before. The Parliament was wont to pro-
ceed formerly by Bill, and thus that pro-
ceeding makes againſt the Lords now, and
for committing the Party accuſed; for then
the proceedings upon Treafon were by Com-
mon-Law, and becaufe the Judges could not
proceed, therefore the Paliment went by
Bill, and it cannot be fuppofed that the
Parties were at liberty all that while.
Second, Third, Fourth and Fifth Reaſons
Voted, Sind
Mr.
(63)
Mr. Solicit. I am againſt this Reaſon,
not as a Reaſon, but unneceffary; for if
the former Reaſons ſatisfie not, this will
not, becauſe it fuppofeth things not in
queftion.
Our Debate muſt at laſt end in this Que-
ſtion, betwixt Priviledge of Parliament and
former proceedings; and there being no
priviledge in Cafe of Treaſon, Why ſhould
not former proceedings Sway? Except we
call that Treafon which is not, for other-
wife no Priviledge will help.
Therefore add this to your Reafon, That
there is no priviledge for Treaſon, and the
Lords ought not to think that the Com-
mons will call that Treaſon which is not,
or if they do, the Lords may by a ſpeedy
Trial determine it.
Refolved, That a Conference be defined with
the Lords, and the Reafons carryed up.
November, 21.
The Lords fent down to defire a Con-
ference about the Subject matter of the laft
Conference. But the Commons doubting
that if they ſhould confent to it, the Lords
might afterwards refufe a Free Conference,
becauſe the buſineſs in difpute concerns Ju-
dicature, which belongs to the Lords, and
ſo the Impeachment generally falls.
Refol-
(64)
Refolved, To fend an Answer by Meſſen-
gers of their own, and accordingly did, with
Order to acquaint the Lords how far they had
proceeded, and they expected they should rather
haue defired a free Conference.
November, 23.
The Debate about the freedom of Speech
in Parliament was refumed.
And the Report Read of Proceedings a-
but Sir John Elliot, Mr. Holles, &c. 5 Car. 1.
Mr. Solic. If you are fatisfied that the
Judgment paffed upon them was Illegal,
two ways you have to be fafe; by taking
notice of that Judgment, giving your Opi-
nion upon it, and carrying it up to the
Lords, that Judgment will be utterly Dam-
ned; elfe you may proceed by Act, but con-
fider then the Confequence: For if you go
by Act, you bound the liberty of Speech,
unleſs in penning it you prevent it, but an
unknown limitation is better than boun-
ding, for an Act it ſelf is fubject to ex-
pofition, but your Vote, and the Lords Con
currence is not.
Mr. Vaugh. It is not fafe for you to Cir-
cumfcribe Priviledges, therefore that muſt
be done which may take away what deſtroys
them.
The
(65)
The Laws and Rights of this Kingdom
äre Rights by Common-Law, or Act of
Parliament; what is an Act of Parliament
may be Repealed by Parliament, what is
Common-Law may be altered by Parlia-
ment, and whatever is both, may be al-
tered by a New Lam; and how is it poffible
to do one, or the other without liberty to
ſpeak about it? And how can there be any
inconvenience about freedom of Speech,
about any Thing which cannot be a Law
without paffing King, Lords, and Com-
mons.
Then it being moved to put the Quefti-
on for confirming that Report.
And it being Replyed that fome paffages
in that Bufineſs, viz. about keeping the
Speaker in the Chair were not warrantable,
and fo not to be joined in the Queſtion with
the reſt.
Mr. Vaugh. That Bufinefs which is fo
much talked of, and Condemned, I fhall
ftate to you.
The Houſe is to adjourn it ſelf, thơ' ſome-
times the King adviſed them to Adjourn
themſelves (as then he did) but the Ad-
journment is always made by a Queſtion,
and without it the Speaker cannot leave the
Chair.
The Speaker acquainting the Houſe then
with the King's Meffage, Sir John Elliot
ftood up to speak, but the Speaker would
F
nct
66 )
not hear him, but was going to leave th
Chair, whereupon fome faid, if you go out
without a Queſtion the Parliament is Diffol-
ved, upon which he was leaving the Chair;
fome kept him, and told him, if this be a
Houfe, you as Speaker have no place in it but
the Chair, and this was all the Irregularity
in that Buſineſs ſo much talk'd of.
Refolved. That the Judgment given a-
gainst Sir John Elliot, &c. 5 Car. was an
illegal Judgment, and against the Freedom and
Priviledge of Parliaments.
The Lords fent for a prefent Conference,
after which Report was made that the
Lords had Voted, the Commons denying
them a Conference lately was contrary
to the Courſe of Parliamentary Procee-
dings, and gave Reaſons why it was not yet
time for a free Conference.
Novvember, 25.
After Debate whereof, it was Refolved
to grant them that the Commons agreed to
the Conference formerly defired.
. At which the Lords declared that they
had conſidered of the Prefidents and Rea-
fons formerly fent them by the Commons,
but were not fatisfied to fecure the Earl
of Clarendon, or to Sequefter him from
Parliament untill fome fpecial Treafon be
Affigned.
Novem.
(67)
Novem. 18. The Commons fent to the
Lords to defire a free Conference upon the
Matter of the laft Conference.
To which the Lords Concurring, Mr.
Vaugh. Sir Rob. How. Sir Tho. Litt. and o-
thers were appointed to manage it, who
went up´immediately to that end.
4:-
Mr. Vaugh. Made Report of the Con-
ference with the Lords yeſterday to the
purpoſe following.
}
The Lords told us, That no Prefident can
be against the Law.
We Anfwer'd.
܂
If that can be made 'good, we fhall prefs
Preſidents no more, but what they moſt
ſtood upon was the Petition of Right, where
'tis provided that none fhall be Committed
without fpecial Caufe, whereby the Party
may Anfwer according to the Law, thence
they infer that our Proceedings are againſt
Law; becauſe a general Charge is againſt
the Petition of Right.
Commons The Cafe of the Petition of
Right, rightly Stated, will clear this, which
was This Some Perfons were Committed
by no other Warrant, but the King's fpeci-
al Command, they bring their Habeas Cor-
•pus to the Kings Bench to know the Caufe:
F 2
This
( 68 )
This Caufe was returned by the Judges,
that they could not Bail a Man, when fo
Committed, becauſe they knew not the
Caufe, nor had any way to bring him to
his Tryal.
Then the Petition of Right provides That
the Cauſe ſhould be returned, whereby
the Crime might appear, and that before
and after the Petition of Right to this Day,
if upon bringing a Habeas Corpus, it be re-
turned that the Party is Impriſoned for
Treaſon, the Judges ought to Remand, un-
lefs there be fome fpecial Cauſe to make
them take Bail. So that the Petition of Right
was againſt them, for they fay, a Man
ought not to be Imprifoned upon a general
Charge, becauſe 'tis againſt the Petition of
Right: We fay it is not againſt the Petition
of Right, becauſe the Judge may Remand
the Party, if there be no ſpecial Cauſe.
Then the Lords faid, That the Reason why
the Judges Remanded in that Cafe was, becauſe
the Party Committed knew it was for Treafon :
Therefore they Re-committed.
We owned it, becauſe it was the Rule for
the Judges to proceed by, but that was
no Rule for Proceedings of Parliament, for
as a Magiſtrate Commits for Treaſon, and
is fuppofed to be acquainted with it; fo
alfo is he with the probability upon the
Proof: But the Lords infiſt not now upon
that
(69)
that, but fpecifie Treafon, and if the
Courfe of Parliaments fo much varied in
fuch Cafes, that was no concluding Proof
why they ſhould have fpecial Treafon.
And for the other part,
a
That upon the Return, there ſhould be
Cauſe Returned, that fo the Party might
Anfwer; for when a Return is made, if
the Cauſe be ſuch as that the Party ought
not to be Imprifoned, the Judges free him,
otherwiſe they leave him to come to his
Tryal
Then to the Preſident about the Earl of
Strafford, they Replyed, That it was made
in bad times. And we Anfwered, That as
good Laws were made before, in, and af
ter that time as any other; and if the Lords
then might make fuch Laws, we could
not fee, why it fhould be a good time to
make Laws, and no good time to Admini-
ſter to Perfons the Laws already made.
Farther, to their Objection, that in the
time whence thoſe Preſidents were brought,
there was a Face of War. We Answered,
That could not alter the Cafe, for the Law
calls no time a time of War, whilſt the
Courts of Juſtice have freedom, as they
had when Strafford, Finch, Canterbury and
Ratcliff were Impeached, and it was ftrange
that in the Parliament-Houfe there- fhould
F 3
be
(70)
-
be fuch a Confternation as to make their
Proceedings invalid, when in other Courts
there were none: Beſides, in Holland-of
many Years there was a conftant Scene for
War, and can we imagine that there was
not Juſtice done at that time.
Then they prefled Preſidents againſt
ours, One 14 Ed. 2. againſt the Spencers,
where a great Man moved the King to
Commit one of them, and the King An-
ſwered, it could not be unleſs Cauſe was ſhemed.
We Replyed, This was a Preſident like that,
a Man was Committed, becauſe he was
Committed, for there was no Allegation
of Treafon.
Second Preſident was 38 Hen. 8. againſt
Lord Stanhope, the Commons moved the King
to Impriſon him, and the King Anfwered
he would confider of it. We Anfwered, That
was no denyal, but a thing ufual with the
King, and that Motion was to the King
himſelf, which differs from this Cafe, for
that was not alledged to be Treafon: Be-
fides, had it been Treafon, it was againſt
the King himſelf, and being an Offence a-
gainst himſelf, he might (if he would) not
Impriſon, becauſe he may diſcharge a Man,
or pardon him, tho' for Treafon; but this
Cafe is not fo, becauſe the Lords Juftice is
but Miniftred to the King.
21 R. 2.
(71)
21 R.2. Arundell Arch-Bishop of Canter
bury, who as they faid was Impeached of
Treafon, but not Committed.
Anfwer. The Cafe was this, There was a
Commiffion Iffued out by Ric. 2. That that
Biſhop and others fhould regulate what
was amifs by evil Government, and the
King was offended at the granting of it,
and at Nottingham fent for the Judges, and
charged them upon their Allegiance to give
true Anſwer to what Queſtions he fhould
ask them, and the firſt Queſtion was, Whe-
ther that Commiffion fo granted, was not inva
ding his Prerogative? They Answered, Yes,
Then he asked how they ought to be punished
who procured it? They Anfwered, as Trai-
tors. In the 21 the Biſhop is charged by
the Commons, and the Treafon alledged is,
That he had procured himſelf to be put
into the Commiſſion.
This being the Cafe, we faid, That if a
Fact be called Treafon, which afterwards
appears to be none, there could be no
Commitment, for if a Man call another
Mans coming into his Ground Treafon, it
falls of it felf; therefore the Bishop was
not Committed.
The Lords faid farther, That all thofe
Articles were declared to be Treafon,
which before could not poffibly be Trea-
F 4
fou
( 72 )
(72
fon to Gommit a Man, becauſe the Nature
of them muſt be Treafon at Common-Law,
and till thefe Treafons were declared,
which was not till 21 Ed. 3. they were not
Treafon fo as to Imprifon, or Try any Man
for them.
We Reply'd, All that Parliament was
Repealed, yet the Prefident was the more
Authentic. But I think that Lord ( it was
the Earl of Br) underſtood not
what he ſaid, at leaſt I did not..
Then about the Earl of Strafford's Prefi-
dent, the Lords faid, that the very Im-
peachment was taken away by the Act of
this Parliament, becauſe the Impeachment
is recited in it. Namely, Whereas the Earl
of Strafford was Impeached &c. But eve-
ry
Claufe in that Act of Attainder is taken
away now, therefore the Impeachment;
and you cannot make ufe of any part
of it.
We Replyed, it's true, the A&t of Attain-
der is taken away, but the very Ad of
Repeal doth recite that very Clauſe (where-
as Thomas Earl of Strafford was Impeach-
ed. c.) and the Act cannot take away
any thing which ſtrengthens its own Sup
polition.
31
Then
(73)
Then the Lords faid,
That they fhould
be willing to comply with the Commons,
but that they must be tender of their own
Judicial Proceedings.
Commons.
Its true they ought, and we
fuppofed that the Lords might be jealous
that we ſhould Intrench on their Power,
but the Commons were fo far from that,
that they thought the Judicial Power bet-
ter lodg'd with them then in the Commons
themſelves could be, but we would open
the Objection.
Their Lordships being the Judges in this
Cafe might think, that for the Commons to
take upon them to know what was Trea-
fon, would be an affuming to themſelves
what was only proper to the Lords, and
that it was fo now in Charging the Earl of
Clarendon generally.
ད ་
Lords. The Objection is right.
Commons. For our knowing Treafon,
we have many among us, who are Juftices
of Peace, trufted by Law to know and
Commit, (and if the Parliament be not
Sitting) even to Commit a Peer himfelf
or Treafon, and the knowing what is
Treafon is fo far from being improper to
he House of Commons, That every Man in
the Nation is bound to know it; for was it
+
ever
(74)
ever known, that Ignorance of the Law
could ever excufe a Man from breaking the
Law? Laws are made to be known by
Subjects, especially thofe which concern
the King; and unless they could find a
Reafon, why the Parliment Embodyed
fhould be more ignorant than particular
Perfons, the prefent Cafe muſt be clear.
That the Jealoufie of the Lords arofe from
a Fallacy, thus, The Lords have Judicial
Power concerning Treafon, and mnft of
neceflity know in; the Common have no
Judicial Power over it, therefore cannot
know it; that is, becauſe the Commons
know what Law is, therefore they have
Judicial Power over Law. To this was not
any thing Replyed.
Farther, We faid that becauſe they inſiſt
ed upon to fpecifie Treafon, becauſe by
Committing upon a general, they might
wrong the Party by Committing him with-
out Caufe,and becauſe they themſelves were
not informed in their Confciences what
they did: They would do well to confider
the many Inconveniencies which might fol-
low, if the Charge of Treafon was not
general, but particular; and fuppofe it was
Special, their Lordships would know no
more by it. For fuppofe a Man Impeached
for Counterfeiting the Great Seal, which
is exprefs Treafon, and he may be Im
peached for it, yet neither their Lordship
ΠΟ
(75)
nor the Party could have any advantage by
that Specification, becauſe there might be
as many Queſtious what is Counterfeiting
the Great Seal, or what is Treaſon.
For Inftance. One Leak a Clerk in Chan-
cery, intending to Forge a Patent, puts to-
gether two pieces of Parchment, and had
fitted them, and put them together with
Mouth-Glew, that they appear'd as one:
Then a Grant was written upon the out-
moft, and a Seal affix'd, fo that the Great
Seal is put to a true Thing, then he cuts
off the edges of the Parchment, fo as to
fever them, takes off the written One, and
leaves the Seal on the Blank, then Forgeth
the Grant and makes uſe of it. This was
queſtioned before the Judges, whether 'twas
Treafon or not; that is, whether Counter-
feiting the Great Seal or not? If it were,
it was Treafon, otherwiſe not. They Re
folved, it was not Counterfeiting the Great
Seal, and fo not, but Mifprifon. And if
it had been Treafon, they Refolved, that an
Indictment had been enough to Impeach
him. Then fuppofe you have fuch an Im-
peachment before you for Counterfeiting
the Great Seal, you have Special Trea-
fon, and Imprifon him; but when it is
brought to Queſtion, it appears not to
be Treaſon, therefore he is wrong Impri-
foned And if your Lordships will examine
what knowledg you have of this Fact, you
have
(76)
have no more then if it had been a general
Treafon.
Lords. There is a Cafe put there, as we
are content to take a Special Treafon, but
expect not the Proof as there it was.
Commons. If it were a Cafe put, fo is
your Lordships Reply, for it was put ex
Conceffo, becauſe you agreed that if the
Treaſon was Special, the Party was to be
Committed, and this Cafe was to ſhow
their Lordships, they were in no better
Cafe then, than if the Treafon were ge-
neral.
But the Lords ſtill preffing that the Im-
peachment it felf of the Earl of Strafford,
was Repeal'd in the A&t about him.
Commons. We Reply'd one part of the
Act ought to be fevered from the other,
and that which is without exception fhall
ſtand, tho' the other be taken away: For,
ſuppoſe a Man Profecutes in a Court of Ju-
ftice,for what he apprehends to be his right,
and yet the Caufe goes againſt him, and he
hath no effect of his Suit, afterward the
Party (being an evil minded Man, and
thinking to reach his Ends) Forgetha
Deed, or Suborns Witneſſes, and then be-
gins a Suit in fome other Court, and by
thoſe ways attains his Ends. Then a Bil
comes before this Parliament to Reverfe
→
the
(77)
the Judgment, reciting that fuch a Ferfon
hath been a Suborner of Witneffes, &c.
fo, and fo, and therefore the Judgment is
made void; certainly tho' this Perfon is
named to be an evil minded Perfon, yet
this lays no blemiſh on his firft Proceedings.
So that it appears by the Act, that the
Proceedings againſt the Earl of Strafford
were legal at firſt, if thoſe afterwards,
when the times became tumultuous, were
not, it is not to be applyed to what was
well done and legal: Then we told them
that we had preſſed them with four Pre-
fidents, and to three of them nothing was
Replyed.
Lords. They Anſwered the Reaſon why
my Lord Finch was Committed, was be-
caufe of his Flight.
Commons. He was filed before the Im-
peachment, but it was Ordered, That he
fhould be Committed when found.
Then we told them, That we muſt Re-
port to them, that be the Treafon what it
would, we could not go to the Lords to
have it puniſhed without that diſadvantage,
which the Publiſhing the Treafon before-
hand would expofe us to by making of
Witneffes, eſcaping of Parties, and the
like; then bad them confider, whether if
we ſhould lay before them a Treaſon in
every Thing circumftanced as Gun-Powder
Treafon
(78)
Treaſon, they would not Imprifon the Par
ty till the whole Matter was opened.
Lords. They Anſwered to hear that Cafe
put, for in Matter of State, other Courſes
are to be taken, and they could fee no in-
conveniency in Publishing that to the
Lords, which must be Publiſhed before
400 in the House of Commons.
Commons. The Commons may proceed
with what fecrefie or openness they pleafe,
and the Lords are not to take Notice of
their Proceedings, whether open or fe-
cret.
Farther, That by a Matter of State muft
be understood, when a Parliament is not
Sitting, and we know not whether to re-
fort, but when a Parliament is particularly
called to prevent the Mifchiefs threatning
the Kingdom, if that be not capable of
Remedying, no other Council could, or we
are not bound to refort to that, we are
excluded from that to which we ought
to refort.
Lords. That the Lords bad us take heed
of the Liberty of the Subjects, to which
they are now fain to have Regard, bidding
us confider the Bishop of Canterbury's long
Impriſonnient, without knowing the Gauffe,
and they must fatisfie their Gonfciences,
left
(79)
left they ſhould Commit for Treafon, and
it not prov'd fo.
Commons. It appears not that the Bishop
of Canterbury ſhould have lain leſs time,
had the Impeachment been Special; and for
the Liberty of the Subject, we know not
how a Subject ſhould have more Liberty
by Special Matter than General; Special
being but adding a formal Title, and the
Subject goes to Prifon, as well for the one
as the other.
For their Confciences. Suppofe a Perfon
accuſed generally, they are then to know
whether it be Treafon, and is not it as
much that they, Commit an Innocent Per-
fon fo? as if the matter was Special.
December, 2.
The Lords fent down a Meflage to the
Commons by two Judges, to this effect,
That upon the Report made to them of the laſt free
Conference, they are not fatisfyed to Commit or
Sequester from Parliament the Earl of Claren-
don without the particular Treafon be mentioned
or affign'd; who being withdrrwn.
Lord Torring. (General Mcks Son)
Moved not to part with any Priviledges of
the Commons of England, but adhere to the
General Impeachment.
Sir Rob.
( 80 )
"Sir Rob. How. The Matter before us, is
of as great concernment as ever came be
fore us; if there ſhould be Malice fuppofed
in a Nation againft it felf, it might be
exerciſed by giving a particular Charge,
as well as a General, many of the Lords
are convinced by the Reaſons we gave, and
Concur, thinking our Prefidents good, and
have entred their Proteftation in the Lords
Houſe, afferting the Rights of the Com-
mons of England to Impeach generally;
So that (excepting the Spiritual Lords) f
think I may fay the Major part of the
Lords are for us; and fhould we give up
this, we may be wreſted out of all Right,
and the Commons have no way to proceed
to an Impeachment, but forme Men to be
fo great, as not to be fairly reach'd. There
fore adhere.
Mr. Wall. The Lords are a noble Eſtate,
but whatever the Matter is, they have of
late fome Advice given them, which makes
them proceed as they never did yet, for
fcarce any Thing happens betwixt us, but
they incroach upon us. The Militia is now
as burthenfome to the Fifty Pound Man in
the Country, almoſt as all other Taxes,
and the Lords have gotten this Advantage
on us, that they touch not the Burthen of
it with their Finger: So in time of the
Plague, the Commons muſt be ſhut up, but
not they, infomuch that a good Act pro-
vided
vided to that purpofe paffed not; we. Im-
peach'd the Lord Mordant, and could not
bring him to the Bar, (tho' formerly I have
known an Earl and a Lord brought thither)
you deſired a free Conference about it, but
could not obtain one to this Day. Rome
was at firſt modeft, and only medied with
Spirituals, but afterwards concerned them-
felves fo much with other Matters, that
every. Thing almoft was made to be in Ordi-
ne ad Spiritualia, and many Kingdoms
thereupon break from them. The Lords
now infift upon one Thing, becauſe they
fay 'tis in order to their Judicature, per-
haps hereafter they will tell us we muft
come to them on our Knees, becauſe it is
in order to their Judgment. Confider
therefore whether there be any hope of
giving them fatisfaction; then, whether
you will adhere, and what you will do af-
terwards; for the prefent my Motion is te
adhere.
رقم
Mr. Vaugh. It is truly faid, the Bufinefs
before you ſeems to be as great as ha
been in Parliament, many of the Confe
quences being invifible; therefore before
you Refolve what to do take the whole Mat-
ter before you.
The difference between the Lords and us,
is upon a general Impeachment of Treafon;
the Lords after a Free Conference fay, they
will not Commit unlefs Special Treafon
G
he
(82)
be mentioned or affign'd, thofe whom you
employed to Manage the Conference were
very unwilling to differ with them, but it
ſeems it hath Produced nothing, and I have
nothing to make me believe, but that the
Reaſon is, that the Lords were Refolved
(fay what we would) not to be fatisfied;
for I know nothing which they Offer'd,
but it was fully Anſwer'd, nor any thing
left undone to fatisfie them if they would
have been ſatisfied; what I have to ſay now
is to clear fomething whcih the Lords may
make much found of.
When we urged Prefidents, and made
them our principal Reaſon, we told them,
the way to decide what was in Difference
betwixt the Houſes, is, the ufuage of Par-
liaments; but to our Prefidents we re-
ceived no full Anfwer.
Then the Lords uſed this Reaſon, Name-
ly, that they cared not for Preſidents,
becauſe it was againſt the Exprefs Law of
the Land.
I Anſwer'd them we would join with
them, if they could fhew Law againſt it,
and expected what they would Anſwer, but
heard nothing: Much difcourfe there was,
without Application, of the Great Charter,
and of the Statute of 28 Ed. 3. but not
applyed; fo that I thought Law in 2
Lords Mouth, was like a Sword in a La-
dies Hand, the Sword might be there, but
when it comes to cut, itwould be awkward
and uſeleſs.
But
( 83 )
But I hear fince, that their meaning was
this, (which muſt be cleared by mentioning
fome Laws) that by Magna Charta, it is
provided, That no Man ſhall be taken ´or Im-
prifoned, or Condemned but by the Law; and
thence they infer, That no Man may be
Impriſoned, but it muſt be by the Peers, or
by the Law of the Land.
Again, 5. Ed. 3. No Woman fhall be
attached upon Accufation, er be adjudged
of Life or Limb, but according to the
Law.
25 Ed. 3. No Man fhall be taken by a
Petition to the King or his Council, unleſs
by Indictment of lawful People, or by pro-
cefs of Writ at Common-Law, and (fay
they) this Gale is to none of thefe.
28 Ed. 3. No Man fhall be Imprifoned
without due Procefs according to the Old
Law of the Land: But this Cafe being nei-
ther by Preſentment nor Indictment, the
Lords would not ſtand upon our Preſidents,
but relied on this, as if it were enough in
Bar of all our Preſidents.
Therefore to open this, and the danger
of the Confequence, there are in the Land
many different Laws, and proceedings in
thefe Laws, and Imprifonment upon them;
and yet not one of them by Prefentment,
Indictment, or Tryal by Peers, tho' the
Lords thought this was the Law and there
was no other.
G 2
1, It
(84)
1. It is known that the Crown-Law, or
Prerogative, is diftinct Law from that be-
tween Party and Party.
2. There is the Law and Cuſtom of Par-
liament, called a Law, ab omnibus quærenda,
a multis ignorata, & a paucis Cognita.
3. Then the Cannon-Law, (and it is
much the Biſhops forgot that) and there is
nothing in that Law, more than ſtanding
in a White Sheet, which proceeds not by
Indictment or Prefentment, yet there is
Impriſonment even in that Law.
$
4. There is the Law of Admiralty, and
the Articles of Cleron, where there is pro-
ceedings of another Nature, and by Im-
priſonment.
5. The Law of Merchants, or of the
Staple.
6. The Law of Arms, where is Impri-
fonment and Death, and yet different pro-
ceedings from the Common-Law in the
Great Charter: Now no Man thinks that
all thoſe Courſes of Proceedings are taken
away by the Common-Law, and it is grofs
Ignorance to think it.
7. The Law of the Forreſt, which is
moſt different: So that to urge Magna
Charta
(85)
Charta to this purpofe, as if all Procee-
dings in thoſe Cafes muſt be according to
the Common-Law, is abſurd.
Then there are divers Writs in the Re-
gifter.
One, When a Man hath received the
King's Money to ſerve him, and went not,
then there is a Writ to Arreſt him upon
a Certificate from the Captain under whom
he was to ſerve.
Then the ordinary Writ, which belongs
to the Law Ecclefiaftic, de Excommunica-
to Capiendo.
Another, de Apoftata Capiendo, to recover
a Regular Run-away from his Convent.
Another, called ne exeat Regno, to Im-
prifon a Man, who will not give Security
not to go out of the Kingdom, and this is
not Traverſable any where, becauſe it fug-
geſts that he will Machinat ſomewhat
hurtful to the Kingdom, and upon that
Suggeſtion he is Imprifoned.
Another, when a Man hath a Leprofie.
Another, to burn Hereticks, which con-
cern'd the Biſhops alfo, if they had pleas'd
to think of it.
G 3
Theſe
(86)
Thefe Proceedings are no way agree-
able to thoſe mentioned in the Common-
Law.
Then confider how this Refolution of the
Lords ftrikes at the Law of Parliaments.
1. It is certain that all Impriſonment
by Parliament is not by Prefentment, In-
dictment, &c. So that by this means that
Power is taken away.
2. Contempt againſt Parliamentary Au-
thority, whofoever he is to appear before
them, and diſobeys them, they may Impri-
fon him in the Tower, and yet it is not a-
gainst Magna Charta.
Whither therefore tends this?
4
The Conclufion must be, that no Im-
peachment by the Commons must go on,
unless it be by Prefentment, and fo there is
an end of all that for which the Parliament
is principally called, unless we are part of
thoſe 500 contemptible Ones, who are on-
ly fit to give Money; That may be reſerved
for us, but nothing elfe; tho' 23 Ed. 3.
faith, For redrefs of grievances in the King-
dom a Parliament fhall be called every Year. I
would know which way we ſhould redreſs
Abuſes, if we are fo far from remedying in
Parliament, that we must be ſhut out to
the Common Courfes in other Courts?
+
Obj. The
( 87 )
Obj. The Lords may fay, if you find the
Statutes broken, and ſhort, you ſhall have
New.
fo
Anfw. And when theſe New Ones arc
broken, then we fhall have a Remedy,
rife up Remedy, and go to the Remedy,
ad infinitum, for there is no more Reaſon to
think that a Second Law fhall be maintained
more than the Firſt, and what way a Miſ-
chief ſhall be Redreffed, other than by Par-
liament, I know not.
So that by this Refolution of the Lords,
and denying to Commit upon this Ground
(for they fhew'd no other) every Thing
for which a Parliament is ufeful is deny-
ed us.
After all this come to the very Cafe.
If a Treafon be Committed, and the
Fame is that A. B. is guilty of it, it is law-
ful to Apprehend him for it. If Hue and
Cry purfue a Man, tho' he be not of evil
Fame, yet he may lawfully be Imprifoned:
If it proves falfe, he hath his Remedy;
but that obftructs not the Law to bring
him to Tryal: Any Watch-Man may Arreft
a Night-Walker, and hath a Warrant in
Law for it, and this is as good Proceſs in
Law, as any original Writ.
G 4
And
(88)
And after all this, Confider with what
kind of Colour, when there are weighty
Reaſons why we ſhould not mention fpe-
cial Treafon, and that mentioning it ge-
nerally, anfwers the Petition of Right,
the whole Commons of England (who are
in no degree reprefented by the Lords,
They only reprefent their own Perfons
fhould be denied the Securing a Perfon
Impeached unless a particular Charge be
given, how prejudicial fo ever to the King-
dom.
Another thing, there is no Right which
a Man hath in this Land, or any part of
the World, but his Right is fuch, that if
it be kept from him, he hath a means to
come to it, otherways it is Damnum fine In-
juriâ, for where the Law gives no remedy,
there is but a fuppofition of Right: By the
fame meaſure it will follow, that there is
no civil wrong can be done to any Man,
but the Law provides a Remedy if that
wrong be done, and if by the Law there
is no Remedy, it is no wrong, confider then
this Café.
There are in this Kingdom in the Civil
State of it, three Eftates, which the King
hath then in making Laws: There are three
Eftates, whereof the King is Principal;
fometimes they are mentioned as the King's
three Eftates, and he none of them: The
Eftates in general are, the Commons of the
Kingdom,
( 89 )
Kingdom, (who are perfectly reprefented
in this Houſe) the Lords another, and the
King another, and theſe are fuch, that
there is no Petitory Action, nor the Laws
directed to any one of them, but the Laws
you make are to diſtribute Juſtice in other
Courts.
For Inftance, If all the Commons of Eng-
land (who are one of the Eſtates) fhould
Accufe one of themſelves, the Party can
have no wrong, becauſe the Parliament
can have no Action brought againſt them,
nor can they be fuppofed to do any thing
for Malice.
It is the fame between the Body of the
Lords and Commons; and there is no Law
either to Vindicate the one or the other;
but they ſtand as if there were no com-
municable Law betwixt them; but the
meaſure between them is that which is
good for the whole; for they are the ma-
kers of Laws for others, but no Laws can
be' fancied to reach the whole of the Com-
mons, or of the Lords.
So that 'tis eaſily to be ſeen, how it hath
been put upon us, fo that now we are in
fuch a Cafe, we know not to what end we
Thall proceed upon this or any other Im-
peachment; for by this Judicial power,
you fhall be excluded from any proceed-
ings
(90)
ings by Laws of Parliaments, and fo you
take away the whole Right of the King-
dom.
Queft. But now what ſhall you do?
Af. I fee many Inconveniencies which
may happen both ways, but I fee fo ma-
ny this way, that if any Man gave fich
Councel as is Charged upon the Earl of
Clarendon, it is not fo dangerous as the
Cafe before you; for the Inconveniencies
attending that Councel would quickly fhew
it felf by the Mifery following: But this
is a fmall thing begun with, which, like
a Canker, may eat till it be uncurable,
and that is as abfolutely juſtifiable as
this.
And now I have faid this, I am perplexed
what to ſay more, for all can bear me wit-
neís, what refpect I have endeavoured to
preferve to the House of Peers, but I am ſo
fenfible of this, that tho' I cannot forget
my reſpect to them, yet I muft lament the
Condition into which they have brought
themſelves firſt, and us next, for they can-
not think to avoid it.
The Houſe of Peers is but a New Stile,
called fo, as Jurors are called Peers, from the
Word Par; for every Commoner hath his
Peers as Lords have; and the whole Stile
formerly was Arch-Bishops, Bishops, Dukes,
&c.
(91)
&c. But Pares Regni is a new Stile. It is
called the Upper Houſe, and is to be look't
upon with Reverence. The Lords have a
Juriſdiction,but in this Cafe,I muſt be plain,
their granted Jurifdiction arifeth from the
Houfe of Commons, if you Impeach not there
your Judicial Power will be very little.
If a Lord be to be Tried for Treafon, the
Lords are but his Jurors; and tho' they
Try him upon Honour, not upon Oath, yet
they are no more his Tryers, than as out of
Parliament: The Judge of Treaſon in the
Lords Houfe, is Conftituted by the King,
as a Lord High-Steward, and there is no
other Judge, therefore I know not the
Judicature they ſpeak fo much of.
There is another for Writs of Error,
which are there determined, but the Jurif-
diction of that is very little, for the In-
conveniency of the Lords determining what
could not be determined in other Courts,
is fo found out 25 Eliz. They are to be
brought firſt into the Exchequer Chamber.
There is another way when Perfons car-
ry Complaints to the Lords, which is a
Queſtion, for Commoners ought not to car-
ry Complaints there, except in ſome Cafes
from Chancery; therefore this Matter of Ju-
rifdiction, which they talk of, is not fuch
a wonderful thing as they would make it.
Therefore whatever we fhall do after it,
your Rights being fo much concerned that
you know not where the ſtay will be, it
is
(92)
is neceffary that you make a Committee to
draw up a Proteftation to be made by this
Houſe concerning this Matter, The Invafi-
on of your Right in it, and the danger to
the Kingdom by it.
Mr. Colem. The Lords fay, That commit-
ting upon a general Impeachment is againſt
Law, and I think it will appear fo; Ide-
ny not, but a Mittimus without special
Caufe is legal, and grounded upon the Pe-
tition of Right, the Reaſon of which is to
fecure Men againſt Commitment by a fpe-
cial Warrant, and a Judge ought not to
diſcharge where Treafon is alledged, but
in this Cafe it is different; The Judges
cannot diſcharge a Man Committed after
Examination, but the Lords ought not to
Commit a Man, except there be particu-
lar Treafon.
If I come before a Juftice of Peace, and
fay, I accuſe this Man of Treaſon, will a-
ny wife Man Commit him? he makes his
Warrant indeed, but he that accuſeth muſt
go farther and make it more particular,
and the ſpecial Matter muſt appear before
he Commits, and this is the preſent Caſe.
The Common-Law is, That no Man
ought to be Committed without particu
lar Caufe; becauſe no Man can Commit in
Capital Matters, without taking Examina-
tion before hand, otherwiſe no Man can ju-
ftifie a Commitment: Therefore I am
not
(39)
not fatisfied that the Lords Had not rea-
fon to deny. The Commons are in the
nature of a Grand-Jury to preſent, but
the Lords are the Judges; Commitment
is not the Judgment but in order to it,
and the Lords have a difcretionary Power
in the Cafe: The Lords ſay not that they
will not Commit, but that they are not
fatisfied to do it without fpecial Matter,
therefore we ought to fend it up.
Sir Rob. How. I have attended the Rea-
fons given againſt making a Proteſtation,
and whatever is faid, is but levelling a
Houſe of Commons with every private Ac-
cufer; a Juſtice of Peace (it is faid) muſt
have Evidence before he Commit, and this
Houſe has had Inducements to Impeach,
and may not a House of Commons Judge
what is Treafon as well as a Juſtice of
Peace?
The Inconveniencies and Dangers laid
before you, if you proceed, are nothing in
compariſon of thoſe on the other fide.
Had the Lords Imprifoned, they had be-
fore this had the particular Charge, and
the Proteſtation is not to ftop it, but to
make way for it fome other way; for it
will refolve into a Remonftrance, by which
you may give the Nation an Account of
your Proceedings to come to a Tryal of
this Bufinefs.
Mr.
(94)
Mr. Vangh. By the Proteftation ſpoken
of, is meant to preſerve the Rights of this
Houſe upon the whole Matter, and to give
the Reaſons of your Proceedings.
Sir Tho. M--rs. What is faid, not being
explained; I know not what is meant by
the Proteſtation; if it be but to enter it
into our Book, I am not againſt it, if it
be an Appeal to the Nation, pray conſider
what you do.
Mr. Vaugh. This way of Proteftation
differs from entring in our Books, but the
beſt way is to draw it up, and to bring it
to you, and then any Man may take Ex-
ceptions againſt it; for the meaning is,
that this Houſe Claims its Rights.
Mr. Garam. Firſt make your Proteftati-
on, and then Appeal to the King.
Mr. Vaugh. None can furmize that you
mean an Appeal to the People by what is
moved, for what is done, muſt be done to
ſome part of the Parliament; the King,
Lords, or your felves: And they who ſpeak
of it (if it were done with evil intent) de-
ferve to be called to the Bar; when it is
brought before you for your Approbation,
you may either retain, or reject it.
ว
Sir
(95)
Sir Walt. You. I defire that the Honfe
may know before hand to whom they are
to Remonſtrate, and on what ground, and
therefore to Adjourn their Debate now.
Mr. Trev. What Appeal you make ought
to be to the King, but bring it in hither
and give it what Name you pleaſe.
Sir Rob. Atk. As! would be tender of
your Priviledges, fo, of giving Offence to
the Lords, therefore we hall endeavour to
be Unanimous in this House; a Proteſtation
is Named, I am a ſtranger to it, and
would underſtand clearly what is is before
we do it; That it is a Courfe warranted
by Preſidents and Proceedings of Parlia-
ments, confidering what effect it hath had
in late times, therefore we may do well to
adjourn the Debate and Confider of it.
Sir Tho. Lat. This Proteftation will be
like that in the Lord Maynard's Cafe, but
fomewhat longer, and ought to go far-
ther then to one of the Eſtates, and be kept
within the walls.
Mr. Swinf. You fent up a Charge to the
Lords in general, defiring that the Earl of
Clarendon fhould be fecured, and in coveni-
ent time you would fend up Articles; from
that time it hath not been done, and the
Lords
(96)
Lords have paſſed ſeveral Votes about it
fince, but you have not paffed one.
Firſt they Voted, that they had not com-
plied with your defires for want of parti-
cular Treafon; Then you give them Rea-
fons, they are not fatisfied with them;
then a Free Conference, they are ſtill un-
fatisfied; and all this while you have not
come to any refolution: So that till you
come to a Vote, no Man knows but that
you are fatisfied with their Anfwer; for
when the Matter of the Proteftation is
brought in, we ſhall not be ready for it
till we have refolved, that what the Lords
Inſiſt on, is an obſtruction of Justice, and
you cannot agree with them without great
Inconvenience to the Nation; Therefore
put a Queſtion, That the Lords, not having
agreed to Secure the Earl of Clarendon upon
the general Impeachment, have obftructed the
Publick Justice of the Kingdom in proceedings
of Parliament, and is of dangerous Confe-
quence: This is neceffary, becauſe the Lords
have heard nothing from you, but endea-
vour to fatisfie them.
Sir John Good. This Queftion will be a
greater Accufation of the whole Houfe of
Lords, than the other is of the Earl of
Clarendon. If you will go by way of Pro-
teftation, and keep it within your own
Walls, I like it better than this Queſtion.
Sir
(وقع
(97)
Sir Rob. How. The putting this Queſtion
is no Charge upon the House of Lords; and
therefore if that Gentleman thinks it fo
great an one, fure he thinks the Charge
againſt the Earl Clarendon to be a very
fmall one. Is there any Obſtruction to Ju-
ftice? If not, Why do we not Comply?
If there be, we cannot it feems Complain
without Charging the Lords. Keeping it
within your own Walls, is but like a Man,
when he is alone, muttering Arguments to
himſelf, and Commending himfelf for it.
If you meet with any Obftructions, pray
firft put the Queſtion, whether you are ob-
ftructed.
Sir Rob. Atk. It is no light matter to
Charge the Lords with Obftructing Juſtice;
therefore the thing being new, pray ad-
journ it till to morrow, that we may be
more of one Mind.
Then the Question was stated, Namely,
That the Lords not having complied
with the defire of the Commons in Com-
mitting the Earl of Clarendon, and Seque-
ſtring him from Parliament upon the Im-
peachment from this Houfe, is an Obftru-
tion to the publick Juftice of the King-
dom, and is a Prefident of evil and dange-
rous Confequence.
H
Re-
( 98 )
Refolved, That the Question be Put,
And being put, Refolved in the Affirma-
tive.
Refolved, That a Committee be appointed
to draw up a Declaration to Vindicate the
Proceedings of this Houfe.
Decemder, 3.
A Meſſage from the Lords by two Jud-
ges, That they have received a large Peti-
tion from the Earl of Clarendon, which In-
timates that he is withdrawn.
Sir Tho. Tompk. Moved to take care to
get the Sea-ports ſtopt.
Sir Tho. Lit. I believe he is now paſt ſtop-
ping, but we ſhould do it, tho' it have no
effect; left it look as tho' we would have
him eſcape.
Sir Rob. Hom. The Lords feem now mi-
ſtaken in their Opinion at the Conference,
they ſaid there was no fear of his Running
away, and in our Houſe it hath been 'Je-
fted that he was not like to Ride Poſt. Be-
fides the Expreffion in the Meſſage is (with-
drawn) which may be an inward Chamber,
therefore 'tis fit to defire to ſee the Petiti-
on, and Command fome Members to pre-
pare
ju.
( 99 )
pare fomething to Vindicate your felves in
diſcharge of your Duty.
↓
Mr. Seym. Yon cannot take Notice to
the Lords of the Petition, unleſs they think
good to Communicate to you, but make
the Declaration
Mr. Vaugh. I look upon what the Lords
fay as doubtful, therefore beware left you
do fomething misbecoming you. They on-
ly fay, that he is withdrawn, but not what
is his Petition; for the faying that he is
withdrawn, is not the Matter of a Peti-
tion. Perhaps he is gone into the Country,
the Meſſage ſeems light, and you are to take
no notice of it. If it be of Moment, and
they think us Concern'd, they fhould let us
know it; and I cannot think fo of the
Lords, that they would ufe that word, if
he were fled therefore fend a Meflage, to
know whether fled or withdrawn.
Mr. Sol. Gen. When a Delinquent fignifies
to his Judges, that he is withdrawn. it
cannot fignifie any thing, but that he is
withdrawn from their Judgment. None
but a mad Man will tell them that he is fled
fearing what may follow; it would be well
if their Care would prevent his flying,
but you cannot Anſwer it, if you hear they
do nothing, and fo feem to fay, fare him
well.
H 2
11pon
\~100)
16ο
Upon all which Motions, Ordered,
That Sir Tho. Cliff. (Comptroler of the
King's Houſehold) be fent to the King, to
defire the Ports may be ſtopped.
December, 4
The Lord Fitzharding makes Report from
the King, that the Meflage for ftopping the
Ports being delivered him, he had taken
Care accordingly.
A Meffage from the Lords to defire a
fpeedy Conference:
From which Mr. Solicitor Reports.
We attended the Lords at the Confe-
rence, which was delivered by the Duke
of Buck. who faid to this purpoſe.
That the Lords had Commanded him to
deliver to us that Scandalous and Seditious
Paper ſent from the Earl of Clarendon, de-
firing us to prefent it to you; and to
defire you in convenient time to fend it
to them again, for it had a Stile which
they were in love with, and defired to
keep it.
Which faid Paper was read, and is as
follows, viz.
To
( 101 )
TO THE
Right HONOURABLE
THE
LORDS
Spiritual and Temporal,
IN
Parliament ASSEMBLED.
The humble Petition and Addrefs
of Edward Earl of Claren-
don.
May it pleaſe Your Lordships,
Cannot express the unsupportable
Trouble and Grief of Mind I fu.
Stain under the Apprehenfion of be-
ing Mifreprefented to Tour Lord-
fhips, and when I hear how much of Tour
Lordſhips time hath been spent upon the
mention of me, as it is attended with
H 3
more
( 102 )
nore publick Confequences, and of the
differences of Opinion which have alrea-
dy, or may probably arife between Tour
Lordthips and the Honourable Houſe of
Commons; whereby the great and weighty
affairs of the Kingdom may be obstructed
in the time of fogeneral a diffatisfaction.
I am very unfortunate to find my felf
to suffer so much under two very difad-
vantageous Reflections, which are in no
degree applicable to me.
The First from the greatness of my E-
fate and Fortune, collected and made in fo
few Tears, which if it be proportionable to
what is reported, may very reafonably caufe
my Integrity to be fufpected.
The Second, That I have been the fole
Manager and chief Minister in all the
Tranfactions of State fince the King's re-
turn into England, to Auguft laft, and
therefore that all Mifcarriages and Mif-
fortunes ought to be imputed to me and my
Councels.
Concerning my Eſtate, Your Lordfhips
will not believe, that after Malice and
Envy bath been fo inquifitive and ſo ſharp
fighted, I will offer any thing to Tour
:
Lordships,
( 103 )
Lordſhips, but what is exactly true; and
I do affure Tour Lordships, in the first
place, That (excepting from the King's
Bounty) I have never received nor taken
one Penny but what was generally under-
stood to be the just lawful Perquifites of
my Office, by the conftant Practice of the
best Times, which I did in my own Judg.
ment conceive to be that of my Lord Co-
ventry, and my Lord Elfmore; the Pra-
&tice of which I conſtantly obferved, altho’
the Office in both their Times was lawful-
ly worth double to what it was to me, and
I believe now is.
+
That all the Courtefies and Favours
which I have been able to obtain from the
King for other Perfons in Church or
State, or in Weftminſter-Hall, have ne-
ver been worth me Five Pounds: So that
Tour Lordships may be confident I am as
innocent from Corruption as from any dif
loyal Thought, which after near Thirty
Tears Service of the Crown, in fome Dif-
ficulties and Diftreffes, I did never ex-
pect would be objected to me in my Age.
And I do affure Tour Lordships, and
ſhall make it very Manifeft, That the
H 4
Several
( 104 )
Several Sums of Money, and fome Parcels
of Land, which His Majefty hath Boun-
tifully bestowed upon me fince his return
into England, are worth more than all I
have amounts unto; fo far I am from ad-
vancing my Estate by indirect means.
And tho this Bounty of his bath very
far exceeded my Merit, or my expecta=
tion, yet fome others have been as fortu-
wate at least in the fame Bounty who had
as fmall pretences to it, and have no great
Reafon to envy my condition.
Concerning the other Imputation of the
Credit and Power of being chief Mini-
fter, and fo caufing all to be done that I
had a mind to, I have no more to ſay,
than that I had the good fortune to ſerve
a Maſter of a very great Judgment and
Understanding, and be always joyn'd with
Perfons of great Ability and Experience,
without whofe Advice and Concurrence,
never any thing hath been done.
Before His Majesty's coming into Eng-
land, he was conftantly attended by the
then Marquess of Ormond, the late Lord
Culpeper, and Mr. Secretary Nicholas,
who were equally trusted with my felf, and
without whofe Foynt Advice and Concur-
rence,
1
( 105 )
rence, when they were all prefent (as fome
of them always were) I never gave any
Councel. As foon as it pleafed God to
bring His Majefty into England, he Efta-
blished his Privy-Council, and shortly,
out of them he Choose a Number of Ho-
nourable Perfons of great Reputation (who
for the most part are still alive) as a
Committee for Forreign Affairs and Con-
fideration of ſuch things as in the Nature
of them required much Secrefie, and with
thefe Perfons he vouchsafed to Foyn me:
And I am confident this Committee never
tranfalted any thing of Moment (His
Majejty being always prefent) without
preſenting the fame first to the Council-
Board, and I must appeal to them concern-
ing my Carriage, and whether we were not
all of one Mind, in Matters of Importance.
For more than two Tears I never knew
any Differences in the Councils, or that
there were any Complaints in the King-
dom, which I wholly impute to His Ma-
jesty's great Wisdom, and the intire Con-
currence of his Councellours, without the
Vanity of aſſuming any thing to my ſelf;
and therefore I hope I shall not be firgly
charged with any thing that hath fince
fal'n
( 106 )
fal'n out amifs. But from the time Mr.
Secretary Nicholas was removed from his
Place, there were great Alterations; and
whoſoever knew any thing of the Court
and Councils, know well how much my
Credit hath fince that time been dimi-
nifhed, tho' His Majefty graciously vouch-
fafed still to here my Advice in moſt of
his Affairs: Nor bath there been, from that
time to this, above one or two Perfons
brought to the Council, or preferr'd to
any confiderable Office in the Court who
have been of my intimate Acquaintance,
or suspected to have any kindness for me ;
and most of them, most Notoriouſly known
to have been very long my Enemies, and
of different Fudgment and Principles from
me, both in Church and State, and have
taken all opportunities to leffen my Cre-
dit with the King, and with all other
Perfons, by Mif-repreſenting and Miſ-re-
porting all that I faid or did, and per-
Swading Men I have done them fome
prejudice with His Majesty, or croffed
them in fome of their Pretenfions; Tho'
His Majesty's Goodneſs and Juſtice was
fuch, that it made little Impreffion upon
bim.
1
In
( 107 )
In my humble Opinion, the
Opinion, the great Miſ
fortunes of the Kingdom have proceeded
from the War, to which it is Notoriouſly
known that I was always most averfe,
and may without vanity fay, I did not
only forefee, but declare the Mifchiefs
we should run into, by Entering into a
War, before any Alliances made with the
Neighbouring Princes, and that it may
not be imputed to His Majefty's want of
Care, or the Negligence of his Councellors,
that no fuch Alliances were entred into,
I must take the boldneſs to ſay, His Ma-
jefty left nothing unattempted in order
thereunto; and knowing very well, that
France Refolved to begin a War upon
Spain, as foon as his Catholick Majeſty
Should depart this World, which being
much fooner expected by them, They had
in the two Winters before been at great
Charges in providing plentiful Magazeens
of all Provifions upon the Frontiers, that
they might be ready for the War, His
Majesty used all poſſible means to prepare
and difpofe the Spaniard with that appre-
henfion, offering his Friendſhip to that
degree, as might be for the Benefit and
Security of both Crowns.
But
( 108 )
But Spain flattering it felf, That
France would not break with them, at
least, that they would not give them any
Cauſe by Adminiftring Matter of Jealoufie
to them, never made any real approach
towards a Friendfhip with His Majefty,
but, both by their Embaladors here, and
to His Majesty's Embaſſador at Madrid,
always perfifted, as Preliminaries, upon
the giving up of Dunkirk, Tangier and
Jamaica.
Tho' France had an Embaſſador here,
to whom a Project of a Treaty was offered,
and the Lord Hollis, His Majesty's Em-
baffador at Paris, ufed all endeavours to
purſue and profecute the faid Treaty, yet
it was quickly difcerned, That the princi-
pal Defign of France was to draw His
Majefty into fuch a nearer Alliance as
might advance their Defign; without
which, they had no mind to Enter into
the Treaty propofed.
And this was the State of Affairs when
the War was Entred into with the Dutch,
from which time, neither Crown much
confidered the making any Alliance with
England.
As
( 109 )
As I did from my Soul abhor the En-
tring into this War, so I presumed ne-
ver to give any Advice or Councel for
the way of managing it, but by oppofing
many Propofitions, which feemed to the
late Lord Treaſurer and my felf to be
unreasonable, as the payment of the Sea-
men by Tickets, and many other Particu
lars which added to the Expence.
My Enemies took all occafions to enveigh
againſt me, and making their Friendſhip
with others out of the Council, of more
licencious Principles, and who knew well
enough how much I disliked and complain-
ed of the Liberty they took to themfelvs
of reviling all Councils and Concellours,
and turning all things Serious and Sacred
into ridicule, They took all ways ima-
ginable to render me ungrateful to all
forts of Men, ( whom I shall be compelled
to Name in my Defence) perfwading those
that miſcarryed in any of their Designs,
That it was the Chance Hours doing;
whereof, I never knew any thing. Flow-
ever, they could not withdraw the King's
Favour from me, who was still pleafed
to uſe my Service with others, nor was
there
( 110 )
}
there ever any thing done but with the
joynt Advice of at least the Major part
of those who were confulted with. And
as His Majefty commanded my Service in
the late Treaties, fo I never gave the
leaft Advice in private, nor wrote one
Letter to any one Perfon in either of
thofe Negotiations but upon the Advice
of the Council, and also after it was read
in Council, or at least by the King himſelf,
and fome other; and if I prepared any
Inſtructions or Memorials, it was by the
King's Command, and the request of the
Secretaries who defired my Affiftance;
nor was it any wish of my own, that any
Embalador fhould give me any account
of the Transactions, but to the Secreta-
ries, to whom I was always ready to ad-
viſe; nor am I confcious to my ſelf of
ever having given Advice that hath
proved mifchievous or inconvenient to His
Majeſty; and I have been ſo far from be-
ing the fole Manager of Affairs, that I
bave not in the whole laft Tear been above
twice with His Majesty in any Room a-
lone, and very feldom in the two or three
Tears preceding.
•
And
(III)
And fince the Parliament at Ox-
ford, it hath been very visible, that
my Credit hath been very little, and that
very few things bave been hearkned to,
which have been propofed by me, but
contradicted, eo nomine, becauſe propo-
fed by me.
I most humbly beſeech Your Lordships
to remember the Office and Trust I had
for feven Tears, in which, in Difcharge
of my Duty I was obliged to stop and ib.
Struct many Mens pretences, and refuſed
to fet the Seal to many Pardens and other
Grants, which would have been profita-
ble to those who procured them, and many
whereof, upon my Reprefentation to His
Majefty, were for ever stopt, which na-
turally have raised many Enemies to me:
And my frequent concurring, upon the de-
fires of the late Lord Treaſurer, (with
whom I had the Honour to have a long
and vast Friendſhip to his Death) in
Representing ſeveral Exceffes and Exor-
bitances, the yearly Iffue fo far exceeding
the Revenues, provoked many Perfons con
cerned, of great Power and Credit, to de
Mt
( 112 )
me all the ill Offices they could. And
yet I may faithfully fay, That I never
medled with any part of the Revenue or
the Administration of it, but when I was
defired by the late Lord Treaſurer to
give him my Affiſtance and Advice,
having had the Honour formerly to ferve
the Crown as Chancellour of the Ex-
chequer, which was for the most part in
His Majesty's prefence. Nor have I ever
been in the least degree concern'd, in point
of Profit, in letting any part of His Ma-
jesty's Revenue; nor have ever Treated or
Debated it, but in His Majesty's prefence,
in which my Opinion concurr'd always
with the Major part of the Councellours
who were preſent.
All which, upon Examination, will be
made manifest to Tour Lordships, how
much foever my Integrity is blasted by
the Malice of those who I am confident do
not believe themselves. Nor have I in
my Life, upon all the Treaties, or other-
wife, received the value of one Shilling
from all the Kings or Princes in the World,
(excepting the Books of the Louvre
Print fent me by the Chancellour of
France,
2
( 113 )
France by that Kings direction) but from
my own Mafter, to whofe intire Service,
and the Good and Welfare of my Coun
try, no Man's Heart was every more
devot ed.
This being my prefent Condition; İ
do most humbly befeech Tour Lordships to
entertain a favourable Opinion of me, and
to believe me to be Innocent from those
foul Afperfions, untill the contrary fhall
be proved; which I am fure can never be
by any Man worthy to be believed: And
fince the Distempers of the Times, and
the Difference between the two Houfes
in the prefent Debate, with the Power
and Malice of my Enemies, Who gave
out that I should prevail with His Ma-
jefty to Prorogue or Diffolve this Parlia
ment in Difpleasure, and threaten to ex-
pofe me to the Rage and Fury of the Peo
ple, may make me to be look'd upon as the
Caufe which obstructs the Kings Service,
and Unity and Peace of the Kingdom.
I'most humbly' beseech Tour Lordships,
that I may not forfeit Tour Lordſhips
Favour and Protection, by With drawing
I
my
( 114 )
my Self from so powerful a Perfecution, in
hope that I may be able, by fuch with-
drawing, hereafter to appear, and make
my Defence, when His Majefty's Justice
(to which I fhall always fubmit) may not
be Obstructed, or Controled, by the Pow-
er and Malice of those who have sworn my
Destruction.
CLARENDON.
Mr. Vaugh. I think it not convenient to
loofe more time about this Paper. Since the
time of the Earl of Clarendons Name being
mention'd here, I had nothing to Charge
him with till now, but most of the Heads
of this Charge are fo weighty, that I am
confident, they will be eaſily and thorough-
ly proved, tho' I know not how; fo that I
admire at his Confidence, to Charge this
Houſe, and fo the Nation, as his Perfecu-
tors, and that in fuch a Condition, as he
hopes to vindicate himſelf. Its the firſt
time that ever I heard an Innocent Man
run away under the greateſt Charge, with
hopes to return again and vindicate him-
felf.
Then
( 125 )
Then mark one Expreffion; he faith, be
is as far from Corruption, as from Disloyalty.
If he faid he was guilty of neither, he had
faid fomething; but by that Expreſſion he
may be guilty of both: So infolent a Paper
I never met with in this Kingdom, nor have
I ever read the like in any other; fo inconfi-
derable a part of the Nation as he is to lay
it upon the Nation, who, if innocent,
might defend himſelf, if Guilty, why doth
he Charge the Nation with perfecuting?
Therefore without troubling your felves
with it, do, as the Lords have done; who
deliver it to you as a Scandalous and Sediti-
ous Paper; it hath Malice in it, and is the
greateſt Reproach upon the King and the
whole Nation,that ever was given by Man.
Therefore put the Queſtion whether his
Paper fhall not have the Character, that it
is a Scandalous and Malicious Paper, and a Re-
proach to the Justice of the Nation.
Refolved upon the Queſtion.
That the Paper fent to the Lords by the
Earl of Clarendon, and by them fent down
to the House of Commons, and now read, is
Scandalous and Seditions, and doth Reproach
the King and the Publick Juftice of the Na-
tion.
Sir Rob. Hom. You have voted this Paper
Scandalous, and therefore it should not
I ཀ
live,
( 116 )
live, wherefore I move it ſhould be burnt
by the Hangman.
Mr. Garram. The Paper is the Lords,
and you muſt ſend it to them, but enter it
into your Books, and your Vote upon it.
Refolved, To have it burnt.
Sir Rob. Car. The Paper is the Lords,
therefore move them to Concur that it may
be burnt.
Sir Rob. How. The meaning of my Moti-
on is,becauſe the Duke of Buckingham defired
the Paper again for the admirableneſs of
the Stile, it is entered into their Books al-
ready, and they need it not to that end;
therefore defire the Lords Concurrence to
burn it.
Refolved, To fend it to the Lords to that
December, 5.
end.
A Motion being made to fend to the
Lords in purſuance of the Vote about bur-
ning the Paper.
Mr. Vaugh. I am againſt fending up to
the Lords to that purpoſe, becauſe you
have ordered to enter the Paper into your
Books, and when a Paper is burnt, it is not
to ſtand upon Record, but fhould be rafed
out;
( 117 )
Out; which two Things are a perfect Con-
tradiction, therefore let it reft as it is;
We have Voted it Scandalous, &c. The
Lords tell us not that they have done any
fuch Thing, tho' they ought to have done
it firſt.
As for the Earl of Clarendon, he being
now gone, if fuch a like occaſion fhould fall
out, we are in a worſe Condition than we
were; for there is this Preſident againſt us,
in a Cafe now Manifeft: And it becomes us
to do fomething in Order to the Lords
Concurring, that fo a good Underſtanding
may be got; therefore I fhall propound
this to you, to be fent up to them to
that end.
Namely, when any Subject fhall be Im-
peached by the Commons before the Lords
in Parliament with defire to fecure him,
fuch Perfon by the Law of the Land ought
to be ſecured accordingly. This you have
in effect Voted already, in ſaying the Ju-
ftice of the Kingdom is obftructed by their not
doing it.
Secondly, when fuch Impeached Perfons
fhall be fecured, the Lords may limit a cer-
tain time for bringing in the Charge, to
prevent delay of Juſtice.
This may Salve all, and prevent fuch
ways, as may be difpleafing to the Lords,
and perhaps us alfo, in fome Cafes here-
after.
I 3
Mr. Smin
(118)
Mr. Swin. I am perfwded that according
to Rules of Parliament, when you Charge
by Impeachment generally, and promife in
due time to fend up your Charge, they
ought to fecure, but they not having done
it, I queftion whether you conld do what
you have, but the Earl of Clarenden flying,
it is Manifeſt Juftice was obftructed; for
he might have been brought to his Tryal,
if the Lords had fecured him; but now your
Vote is made good, which feems to lay the
advantage on your fide.
&
Sir Rob, Hom. I think this Meffage to the
Lords will deſtroy the way of vindicating
our felves by Declaration; therefore finish
the Declaration, and then Reſolve before
you publish it, whether to fend up this
Meffage.
Mr. Vaugh. If the Lords agree with us,
we may ſpare the Declaration, but if they
agree not now, they will much lefs here-
after: Your Declaration, can amount to
no more but this, make a Narrative of the
invalidity of the Lords Preſidents, but then
you muſt of neceffity do fomething more,
elfe your Labour is in vain; therefore this
Meffage with thefe Votes are neceſſary.
Sir Rich. Temp. I expected that when the
Earl of Clarendon had been fled, the Lords
would have defired the King to Iſſue out a
Proclamation
( 119 )
Proclamation to apprehend him, feeing
they have been the occafion of his Eſcape;
therefore now defire their Concurrence to
go to the King to that end, and if they
Concur, they have upon the Matter grant-
ed Commitment upon a general Impeach-
ment.
Mr. Vaugh. I thought it my Duty to of
fer you what I have done, if you like it
not, I deſire to be excufed in ferving you
in the Declaration, and that they who
think it neceſſary would be pleaſed to take
the pains to do it.
Sir Tho. Lee. If you declare, it will beget
an Anfwer, and where will that end? If
you ſend up your Votes, and the Lords
agree, your end is Anfwered; for it is a
yielding that which they have yet denyed:
Your declaring, and entring it upon the
Journal, will be to no purpofe; it is but
like a Man, who having been beaten pub-
lickly, in the Chamber calls him who did
it Rogue.
Mr. Hampd. I defire that the Words
(Law of the Land) may be left out, and
the Words(Law of Parliament, or, Ufnage
of Parliament) put inftead of them; for it
hath been fḥewed us, that there are feveral
ways of Impeachment belides Common-
Law.
Mr. Fangh.
I 4.
(120)
Mr. Waugh. Thofe Words were pur-
pofely put in, becauſe at the free Confe-
rence, when we prefled the Law of Parlia
ments, the Lords prefled the Lam of the
Land by way of Negative, as if the Law
of the Lend were otherwife, but rather
than that ſhall be any obftruction, put it
by Law.
Mr. Stew. Leave out the Words (by Lam)
for if a Man be fecured, it is Inplyed by
them who do Commit that it is according
to Law.
Then it being Moved to draw both
Votes in one.
Sir Tho. Litt. Tho' you ſhould put both
Votes into one, It will not Anſwer your
end, for the Lords will not Concur with
the firſt Part, and yet may make uſe of
what Part you grant of it, that is the laft,
and fo have advantage againſt you; but
there is another Reafon, why you fhould
forbear theſe Votes, Namely, Prudence.
The Earl of Clarendon being gone, there
is an expectation that a Bill fhould be prepa-
red to do fomething farther, wherein I hope
both Houfes will join; if you fend up this,
you will give diſturbance to that Bill, and
if you ſhould enter this in your Books, in
Order to fend it up hereafter, they will
hear of it, as done to make them fwallow
their
1
(121)
their former Refolves. Therefore defer it
for the preſent.
Mr. Trev. Confider whether the Matter
betwixt you and the Lords is not well as it
is: You have Voted, That when a Man is
generally Impeached, he ought to be fecu-
red, and that the Lords not having done
it, is an obſtruction to Juftice; and what
will it fignifie to carry it to the Lords?
what hath fince fal'n out, juftifies you,
and lays the diſadvantage upon the Lords:
The World expects now what you will
do farther, and that muſt be by Concurring
with the Lords.
Sir Tho. Cliff. We all agree to theſe
Votes,in Order to juftifie your Rights; but
what is the uſe of it? You have already
done it in your Books, and you cannot ex-
pect the Lords ſhould go fo much againſt
their own Votes, this therefore will but
widen the Gap, it being telling them they
muſt eat their words.
Sir Tho. Litt. Thofe, who have had a
hand in the Charge againſt the Earl of Cla-
rendon, have been thought fometimes too
Violent, fometimes too Remifs, as not a-
ble to make out the Charge: But what I
ſpeak now, is for your Honour, which will
be wrong'd in this Proceeding; I am for
bringing the Impeachment to fomething;
and
( 122 )
}
and therefore againſt theſe Votes: Now
you make a Declaration of your own
Rights, and Enter it upon your Books, that
not only the Vote may appear, but the
Ground of it, but not to declare to the
Lords, which will beget an Anſwer and ex-
afperate. It is now unfeaſonable to make
the Lords retract,therefore lay it aſide ; for
tho' I am confident that Gentleman did it
to no fuch end, yet if I would Deſign any
Thing to the Earl of Clarendon's advan-
tage, I could not take a better way than
this.
Mr. Vaug.
b. This is but the affirming all
which hath been done already, and I am for
none of thoſe, who are contriving for any
Thing out of the Houfe.
Sir Will. Covent. This Queſtion is not
now ſeaſonable, tho' it is a better expedient
than the Declaration as Things now ftand,
and confidering what hath paft, I am apt to
think the Lords may do it of their own
accord, and you would not willingly have
a Negative to your Votes. Therefore fec-
ing your Votes may be of ufe hereafter,
put no Queſtion at all, but adjourn the De-
bate to a proper Seafon.
Mr. Vaugh. I am againſt the Adjourning
of it, and have given Teftimony, that I
have done nothing to be thought to do that
which
( 123 )
which is fo much for the advantage of the
Earl of Clarendon, and fhall take heed of
doing any Thing hereafter to be fo re-
flected on.
Sir Tho. Litt. I hope I avoided any fuch
Reflection nor fpeak any Thing to fuch
purpoſe, I do not beleive, nor ever did
think any fuch Thing, and hope that Gen-
tleman himſelf believes that no Man in
this Houſe hath more Honour for him
than I.
Sir Job Charle. Let the World ſee that you
do not intend to reſtrain your proceedings
to the Earl of Clarendon, but make it a
general Care; and therefore are concerned
in Honour to put the Queſtion.
Refolved upon the Question.
That the Question be put.
Refolved, That both the Questions propoun-
ded by Mr. Vaugh. and put fingly in the Af-
firmative, be carryed up to the Lords.
December, 13.
A Bill was brought from the Lords, to
Baniſh the Earl of Clarendon, and read.
After reading, feveral Objections being
made, and it being Alledged, that it was an
abuſe put upon the Commons by the Lords,
and
(124)
and that a Bill of Attainder being pro-
pounded, after fome Debate, the House
pafs'd this Vote.
Refolved, That this Houſe taking notice of
the flight of the Earl of Clarendon, being
under an Impeachment of High Treafon by this
Houfe; the King's Majefty be humbly defired
to Iffue out his Proclamation for Summoning the
faid Earl to appear by a Day, and to apprehend
him in Order to his Tryal.
Refolved, To fend to the Lords for their
Concurrence to this Vote.
December, 14.
A Meſſage from the Lords for a Confe-
rence, at which they delivered two Rea-
fons, why they could not Concur.
1. First, for that they conceive a Proclamati-
on in the way propofed, would be ineffectual,
fince it is not fupæna Convictionis, which
cannot be till particulars in Order to Tryal be
declared.
2. That, what the Houfe of Commons
hath propofed, and do propofe at prefent, is
intended in Order to a judicial way of Pro-
ceeding; but fince the Earl of Clarendon's
Flight, their Lordships upon Confiderati-
on of the whole State of Affairs, and of the
Kingdom, have upon Grounds of Prudence and
Fuſtice,
( 125 )
Justice, thought fit for fecuring of King and
Kingdom, to proceed in a Legislative way a-
gainst the faid Earl, and haue to that end,
past and fent down to them a Bill of Banish-
ment and Incapacity against him, with which
this Vote is inconfiftent.
December, 16.
The faid Reaſons from the Lord being
Reported and Confidered, and it being
Moved that the Houſe would declare them-
felve unfatisfied with them.
Sir Tho. Cliff. I am againſt paffing a Vote
at preſent upon the Lords Reaſons, but
read the Bill fent down from thence,
and Summons him by it to appear by a
Day.
Mr. Trev. Some are againſt the Bill, be-
cauſe it goes too far, Condemning before
Hearing, others would have it to go far-
ther. Summons is in Order to Hearing,
Tryal, and Judgment; of thoſe he hath
made himſelf incapable by Flight, and hath
in his Paper told you, That he will nei-
ther be heard, nor tryed by you: Tho' you
expected to have him fecured by a gene-
ral Accufation, yet you never expected
Judgment upon it. Then it is faid, This
Banishment falls short of Treaſon, but we are
not to paſs Sentence for Crimes but as a
Council propound to the King what is ne-
ceflary in this Cafe: Then confider whether
this
( 126 )
this Bill will Anſwer our Ends, and if it
doth, delay will make it worſe; I think
we ſhould make it reach them. What if
he hath Life in other Parts, his Family
Untainted, and his Children alive, and en-
joy his Eſtate?
Sir Rob. Carr. You have Ordered to con-
fider the Reaſons from the Lords, there-
fore do it.
Mr. Hen. Covent. The Motion to read the
Bill is not againſt your Order, becauſe
part of the Reaſons given by the Lords
is, That you have a Bill, and till
you have
read the Bill, you cannot lay by the Reaſons.
The Earl of Clarendon is filed, you have a
tye upon him in having his Innocent Re-
lations, and by Proceeding farther, you
make him defperate, you are now in an
even way with the Lords; therefore read
the Bill.
Mr. Swinf. You may go upon the Rea-
fons, and yet not reject the Bill; for when
you ſent to the Lords about a Proclama-
tion, and went not upon the Bill, it was,
becauſe what the Bill drives at is the
higheſt Puniſhment next to Death. There-
fore Confider what weight is in the Rea-
fons; One of them feeming to put you
upon the Bill, they put you thereupon on a
Legiſlative Way; they will neither Secure
nor
(127)
nor Summon him, but will Condemn him
Unheard. They cannot Secure him upon
a Charge of Treafon, nor yet Summon
him, but they can Condemn him; and this
they put you upon, which is againſt Ho-
nour and Juſtice, eſpecially to do it up
on Reaſon of State. The Legiſlative Power
of Parliaments is great, it hath no bound
but the Integrity and Juftice of Parlia-
ments. If Reaſon of State be a Motive
of Parliament to Baniſh one Man, ſo it
may be for many. If you go in this Le-
giſlative way, you bring upon your felves
all the Dishonour of the Buſineſs, but the
Lords will have fome excufe, which you
cannot, for they look'd upon the Charge
fo flight, as not to Imprifon him; the
party is gone, becauſe he was not Secu-
red, apprehending (he faith) fear of the
Multitude, not of his Tryal, fo that the
Lords not giving Credit to your Charge
againſt him, he ſays, he flies not from justice.
Now, if upon this Bill you fhall Banish
him, it would be faid you could not make
good the Charge; and therefore laid this
Sentence upon him.
The Preſident is alfo dangerous, if ha-
ving gone fo far in a Judicial Way, you
fhould now go in a Legiſlative. If upon
Reaſon of State Lords may be Banished,
it may be by dozens: As you proceed
Juftly, fo you will be Juftified.".
Nor
( 128 )
Nor is the Danger greater if the Lords
go by Proclamation, and he be put into
Cuftody when he comes, if he can practice
any Thing, will not he be lefs capable
when under the Proclamation, than when
this Bill is Paffed, which Condemns him
without Hearing, and I am not for any
Puniſhment till Heard. In Cromwells Cafe,
who Moved in Hen. VIII. time, to Attaint
a Lord Unheard, the Judges declared they
might, and it would ſtand, afterward the
faid Cromwell was Attainted and Condem-
ned Unheard, and fuch Councel ufually
falls upon thofe that Councell'd it.
Sir Rob. Hom. The Earl of Clarendon faith,
That he doth not withdraw from your Fu-
ftice, but fear of Tumults; but that Reaſon
any Man may give for his flying, if it
will be an excufe; but he might have fe-
cured himſelf from Tumults by rendring
himſelf, and his Innocency upon his Tryal
would have cleared him. This at laft may
come to a free Conference, then you may
be left to go along with the King; the
Houſe riſeth and doth nothing, and then
the World will fee that this Buſineſs will
affure the King of France, That he hath
a Man with him fo Great, as to hin-
der us from doing any Thing againſt
him: Therefore as you ought to do
fomething against him, fee whether it
may not be done by the Bill by reſuming
his
( 129 )
his Lands, c, if he come not in by a
Day.
An Exception may be againſt this way,
Namely, That there is no Attainder, but
if there had been fuch a Bill, the Thing
which ſhould ſway me fhould be the Duke
of York's Marriage: So, that if you
Commit this Bill, you may add all Severi-
ties, except that of Attainder, and if he
come by a Day, then all to be void. If
you go by Proclamation, the Lords may
not Concur and you loofe your Ends. By
this Bill all favour that he can expect is
fhewed, and this way will be the beft
Confutation of the Lords Reafons; there-
fore Commit the Bill.
Mr, Secretary Morr. I am for Committing
the Bill, tho' it be condemning Unheard
;
becauſe he could not but conclude it would
be ſo. Et volenti non fit Injuria.
Sir Ric.Temp. You have proceeded againſt
this Earl in all ordinary ways, and have
been baffled by the Lords. In Edward the
Third's Reign, Adam de Berry fled, and a
Proclamation went against him, and the
Commons neither did, nor ever were bound
to deliver their Articles till the Party
appeared, and in that Cafe they delivered
not their Articles till the laft Day, when
K
he
( 130 )
}
he not appearing was Convicted. When
you would go by Attainder, they tell you,
Deliver fpecial Matter,and we will Summon
him; when you ask a Proclamation,they tell
you, Deliver ſpecial Matter: If you declare
the Matter to the Court, it is upon Re-
cord, and all may know it. You have tryed
all ways Legal and Regular, and they will
do you Juſtice in neither. Now what can
you do? except you and the Lords combine
in Juſtice together, he muſt eſcape, and
if you can be made to differ, he goes away
in a Smoak. If you go to the King for a
Proclamation, you muſt return to the Lords
for Juſtice. I am forry the Ivey hath been
fo near the Oak, that you cannot touch it,
without touching that. There remains a
Bill before you, and in that you are upon
equal Terms with the Lords; therefore
give him a Day to be Heard, and if he
come, let him, but then his Penalties are
too low for his Crimes; therefore read
the Bill, go higher, degrade him of Ho-
nours, Forfeit his Lands, and whether you
will go fo far, I leave with you.
Mr. Soll. Gene. It is not poffible to agree
with the Lords in their Reaſons, but the
Reaſon muſt be becauſe the Bill is good.
But if any Man thinks it is good upon the
Lords Reaſons he is miſtaken; and there-
fore my Advice is to proceed upon the
Bill,
( 131 )
Bill, tho' not upon the Reafons from the
Lords. Some think the Puniſhment in the
Bill too little for the Crime, others too
much, becauſe not Summon'd; fo that it
muft fall out, That a Perfon Impeached
by the House of Commons must fee the Houfe
rife without any marks of difpleaſure up-
on him: Can any Man be Heard, who will
not be Heard? Why fhould not you pro-
ceed in fuch a way againſt him, as whofe
very Flight amounts to a Confeffion? And
have you not burnt his Paper for refie-
&ing upon the Houfe? and can you think he
will appear who is departed in deſpair of
the Court? and now you are contending to
give him time.
Then confider the Thing in it felf. Sup-
pofe the King had a mind to Attaint him,
the King can do it without your help, for
he may be Outlawed for High-Treafon; for
tho' that be Reverfable at Common-Law,
if he be beyond Sea, yet by two exprefs
Acts of Parliament it is otherwife, but
the King cannot Banifh him without your
Concurrence: Suppofe him Fled and At-
tainted, fo that the Queftion is not upon
his Life, but his Eftate, fuppofe your Ju
ftice fatisfied in that, is it not paſt all
manner of Confideration that the King can-
not upon Application reftore it? So, that
all you lookt for by Attainder, is done
K 2
bv
( 132 )
by this Bill of Baniſhment, for his Life is
faved by Flight, as would his Eſtate by
Compaffion; but there is fomething in this
Bill, which, without it, you can never get,
that is, you put him under your Diſplea-
fure, which, the King cannot Pardon; and
and will you have it thought abroad, that
the Earl of Clarendon, fled as he is, hath
been fomething too hard for the Two
Houſes?
Sir Tho. Litt. If there be a neceffity of
differing with the Lords, and I thought
the difference would produce fuch Effects,
I ſhould not ſpeak, but they only tell
you 'tis unneceffary and ineffectual. You
have Impeached, and are now told if you
proceed, it will make difference; but I
fear another greater Danger than this dif-
ference. The World will fay you were
willing he fhould fly, becauſe you could
not prove by flying he hath Forfeited his
Eftate, if the King give it him again it is
his Mercy; but do you Juftice: Therefore
prefs for a Proclamation, for the Bill is
inconfiftent with your Honour.
Mr. Vaugh. I have liftned with much at-
tention to this Diſcourſe, and underſtand
it as little now as at the beginning, the
Difcourfe being nothing adequate to that
end. You have Reafons from the Lords
why
$
( 133 )
why They agree not with you, and if you
agree with the Reaſons, the Summ is to
read the Bill; but if you agree not, you
muſt deſire a Conference, and if they Con-
cur, you may have a Proclamation, if not
(as I think they will not) you are where
you were: We fuppofe him not to be in
England, and if fo, what is the Procla-
mation more than the King's Writ? it
reacheth no Man out of the Kingdom. Its
true, in fome Cafes, if the Perfons are
gone out of the Land they are Summon'd,
and if they come not, their Lands are Sei-
zed, but it is not by Proclamation, which
fignifies nothing if the Party be gone.
Then go on, fuppofe the Lords Joyn
in defiring a Proclamation, the end of
which is Appearing and Apprehending,
poffibly you gain one part, that if he be
apprehended, they do Imprifon him upon
a general Impeachment; but if they agree
not, what benefit have you by it? None:
But if he appears, to what is it? there is
no Charge, if apprehended, to Anſwer the
general Charge.
Then the Third way is, if the Lords
agree not, that you ſhould go to the King,
and there is a more dangerous Rock in
that, than in any thing; for we never heard
of a Commitment per ipfum Deminum Regem,
K 3
but
(134)
but per mandatum Domini Regis, becaufe
againſt the King lies no Damages: What
then muſt you do? many think it injuſtice
to proceed, if he be not called by Pro-
clamation. But it is plain, if you proceed
upon this Bill, you go not upon your Im-
peachment, but becauſe he is fled from the
Juftice of the Land, wherewith you have
Charged him in burning his Paper; and it
imports little, that he faith he is Innocent;
for why then doth he fly? Shall we abate
him of what he ought to fuffer for his
faying fo? He is fled from the Justice of
the Parliament, and therefore is proceeded
with, and for what others fay, you ought
not to regard popular Reaſons, but to pur-
fue your own; it is enough for you to
hear fome Proofs made: When was it
known in any Court, that Proofs ſhould
be taken only on one fide? So that you
cannot acquit your own Juſtice, nor bring
him any ways to Anfwer, he being gone,
nor can you have any effect of the Pro-
clamation, tho' the Lords join in it: There-
fore unleſs you will have nothing done
after all this, (for he may not be Guilty of
all Charged, who yet hath made himſelf
Guilty of what is Charged by flying) Read
the Bill.
At
( 135 )
At laft the Queſtion was put, whe-
ther the Bill fhould be Read and Com-
mitted.
109 for it.
55 against it.
164
December, 18.
The Bill for Baniſhing the Earl of Claren-
don was Reported from the Committee,
and Read.
Sir Rob. How. I defire that to the
Preface of the Bill this addition may be
made.
That whereas the Earl of Clarendon was
Impeached of Treafon by the Commons, who
defired he might be fecured, but was not, and
thereupon is fled.
And this to the end the proteſting
Lords may be gratified, who took fo much
Care of the Commons.
Sir Rob. Carr. Seconds the Motion.
Sir Tobu
К 4-
( 136 )
Sir John Talb. I cannot Concur with that
Motion, becauſe we cannot take Notice of
what the Lords do.
Sir Rich. Temp. We may take notice of
Things in the Lords Books which are Re-
cords, and there the Proteft is entered;
and tho' not to gratifie them who owned
our Right, yet we ought to take Care of
our own Right: And that the World may
fee we have fome Cauſe to Paſs this Bill,
neither deal fo modeftly with a Man who
flies from Juftice, as to ufe his own Word
(withdrawn) but call it flying.
Sir Tho. Gom. Let the Words be, that
having been Impeached, and Moved to be St-
cured, hath withdrawn himſelf.
Mr. Solicitor. The word Moved, deftroys
the Bill it felf, the word of the Bill is to
Unite the Two Houfes, and this Amend-
ment tends to deſtroy that End, for the
addition to the Preface being infifted on,
the Lords will add the Reafons for not
Committing, and fo revive the whole Mat-
ter again.
Let the Lords add in their Books what
they will, your Books will as much juſtifie
you, as theirs them.
Sir Hum.
( 137 )
.. Sir Hum. Win. Let the Words be ad-
ded whether the Lords agree, or not, that
it may appear upon our Books.
Mr. Hugh Bofcow. The Preface is but
Hiftory, yet add the Words, and let the
Lords infert what they pleafe, I fhould
rather Concur with them, than leave out
thofe Words.
Mr. Vaugh. Put no Queſtion upon theſe
Words, but whether the Preface fhall go
as it is; The Bill in all probability is a fafe
Bill, becauſe it came from them: But if
you begin an Alteration, you your felves
render it unfafe; for if you put in thefe
Words, then the Lords will add, for want
of Special Matter, and fo it will come to
nothing.
Then the Bill was read the Third time.
Mr. Vaug. I am againſt the Word With-
drawn, and for the Word Flight inſtead of
it, and in regard the Juftice of this Bill
depends upon the Word (Flight) put it
exprefly.
Sir Rob. Carr. I am againſt this Bill, tho'
I was as earneft in the Matter as any one
while I thought there was Proof, but now
none appearing, I am againſt the Bill, be-
caufe
( 138 )
cauſe you are Confirming what the Lords
have done.
Mr. Vang. Many Men wonder that no
Reafon is given for paffing this Bill, but
the Queſtion is miſtaken, the Bill is groun-
ded upon his Flight after his Impeach-
ment, and his flying Implys fome Guilt,
if none, it is the fafeft Argument for a-
ny Man to run away, and then there is
nothing to catch him. A Proclamation to
a Man out of the Kingdom fignifies no-
thing. But in the whole it is plain, that
he faith, that finding the King's Juſtice
obftructed in Parliament, he is fled.
Obj. But it will be faid upon bare Flight,
never was any Man Puniſhed.
Anfw. If one Man kills another and flies,
tho' upon his Tryal he ſhall be acquitted,
yet he ſhall never recover his Goods be-
caufe of his Flight.
There has been feveral Acts of Banish-
ment, Spencer, &c. And in this, is fome-
thing more fevere than in them, Namely,
that none fhall Correfpond with him,
then there is fome advantage, Namely,
that if he come in by the Firſt of
February, all' fhall be void; but when
the Crime is laid, and his Flight makes
him
( 139 )
him Guilty, he ought not to have a
Day.
Then the Queſtion was put for palling
the Bill.
65 For it.
42 Against it.
107
And then the Houſe Adjourned.
1
ARTICLES
( 141 )
ARTICLES
OF
HIGH-TREASON,
And other Heinous.
MISDEMEANOURS:
Exhibited against Edward Earl
of Clarendon, Lord High-
Chancellour of England, in the
Houfe of Lords; on the roth
of July, 1663. By the Earl
of Bristol.
"Τ
HAT being in Place of highest
Trust and Confidence with
His Majesty, and having ar-
rogated a Supream Direction
in all His Majesty's Affairs, both at Home
and
( 142 )
and Abroad, hath Wickedly, and Ma
liciously, and with a Traiterous Intent
to draw Scandal and Contempt upon His
Majesty's Perfon, and to alienate from
him the Affections of bis Subjects abu-
fed the faid Trust in manner follow-
ing, viz.
That he hath Traiterously and mali-
ciouſly endeavoured to Alienate the Hearts
of Flis Hajefty's Subjects from him by
words of his own, and by artificial In-
finuations of his Creatures and Depen-
dances, that His Majefty was inclined
to Popery, and had a Deſign to alter the
Religion Established in this Kingdom.
That in purſuance of that Traiterous
Intent, he hath to feveral Perfons of
His Majesty's Privy-Council, held Dif-
courfes to this effect, viz.
That His Majesty was dangerously cor-
rupted in his Religion, and inclined to
Popery.
That Perfons of that Religion had
Such Access, and ſuch Credit with him,
that
:
( 143 )
that unless there were a careful Eye
bad unto it, the Proteftant Religion
would be overthrown in this Kingdom;
and in pursuance of the faid Wicked and
Traiterous Intent, upon His Majesty's ad-
mitting Sir Henry Bennet to be Princi-
pal Secretary of State, in the Place of
Mr. Secretary Nicholas, he hath faid
thefe words, or words to this effect.
That His Majefty had given 1000c 1.
to remove a zealous Proteftant, that he
might bring into that Place of High
Trust a concealed Papist, notwithſtan-
ding, that the faid Sir Henry Bennet is
known to have ever been both in his
Profeffion and Practice conftant to the
Proteftant Religion.
That in purſuance of the fame Traite-
rous Defign, feveral near Friends and
known Dependances of his, have faid a-
loud, that were it not for my Lord
Chancellours ſtanding in the Gap, Po-
pery would be introduced in this King-
dom, or words to that effect.
That
(144)
That in pursuance of the aforefaid
Traiterous Defign, he hath not only ad-
wifed and perfwaded the King to do fuch
things contrary to his own Reaſons and
Refolutions as might confirm and encreafe
the Scandal, which he had endeavoured
to raiſe upon His Majesty as aforesaid,
of his favour to Popery, but more par-
ticularly to allow his Name to be used to
the Pope and Several Cardinals in the
Sollicitation of a Cardinals Cap for the
Lord Aubigney, one of his own Subjects,
and great Almoner at prefent to his Royal
Confort the Queen.
That in pursuance of the fame Wicked
and Traiterous Defign, ke bad recom-
mended to be employed to the Pope one of
his own Domeſticks, Mr. Rich. Bealing, a
Perfon (tho' an avow'd Papift) known
to be trusted and employed by him in
Dispatches and Negotiations concerning
Affairs of greatest Concernment to the
Nation.
That in pursuance of the faid Traite-
rous Defign, he being chief Minister of
State, did himself write by the faid
Mr. Rich.
:
( 145 )
Mr. Rich. Bealing Letters to feveral
Cardinals, preffing them in the King's
Name to induce the Pope to Confer a
Cardinals Cap on the ſaid Lord Aubig-
ny, promifing, in Cafe it should be attained,
exemption to the Roman Catholicks of
England from the Penal Laws in force
against them; by which Addrefs unto
the Pope for that Ecclefiaftical Dignity
for one of His Majesty's Subjects and
Domeſticks, he hath, as far as from one
Action can be inferred, traiterously ac-
knowledged the Popes Ecclefiaftical So-
veraignty, contrary to the known Laws
of this Kingdom.
That in purſuance of the fame trai-
terous Defign, he has called unto him fe-
veral Priests and Jefuits, whom he knew
to be Superiors, of Orders here in Eng-
land, and deftred them to write 10 their
Generals at Rome, to give their help
for the obtaining from the Pope the
Cardinals Cap for the Lord Aubigny,
as aforefaid, promifing great Favour to
Papifts here, in Cafe it should be ef-
fected for him.
L
That
( 146 )
That he hath promifed to feveral Pa-
pifts he would do his endeavour, and
faid he hoped, to compaſs the taking a-
way all Penal Laws against them, which
he did in pursuance of the traiterous
Defign aforefaid; to the end they might
prefume and grow vain upon his Patro-
nage, and by their publishing their hopes
of a Tolleration, encrease the Scandal en-
deavoured by him, and by his Emifa-
ries,to be raiſed upon His Majesty through-
out the Kingdom.
That in purſuance of the fame traite-
rous Defign, being intrufted with the
Treaty betwixt His Majesty, and His
Royal Confort the Queen, he concluded
it upon Articles fcandalous and dangerous
to the Proteflant Religion.
That in purſuance of the fame traite-
-rous Defign, he concluded the fame Mar-
riage, and brought the King and Queen
together, without any fettled Agreement
in what manner the Rights of Marriage
fhould be performed, whereby the Queen
refusing to be married by a Proteftant
Priest, in cafe of her being with
Child,
( 147 )
Child, either the Sacceffion should be
made uncertain for want of the due
Rights of Matrimony, or elfe His Ma-
jefty to be expofed to a fufpition of ha
ving been married in his own Dominions
by a Romish Priest, whereby all the
former Scandals endeavoured to be raiſed
upon His Majefty by the faid Earl, as
to point of Popery might be confirmed
and heightned.
That having thus traiterously endea
voured to Alienate the Affections of His
Majeſty's Subjects from him upon the fcore
of Religion, he hath endeavoured to
make uſe of all the malicious Scandals
and Fealowfies, which he and his Emiſſa-
ries had raiſed in His Majesty's Sub-
jects, to raiſe from them unto himfelf
the popular Applaufe of being the zealous
Upholder of the Proteftant Religion,
and a promoter of new Severities againſt
Papifts.
That he hath traiterously endeavoured
to Alienate the Affections of His Ma-
jeſty's Subjects from him, by venting in
bis own Diſcourſe, and by the Speeches
L 2
of
( 148 )
of his nearest Relations and Emiffaries,
opprobrious Scandals against His Maje-
fty's Perfon and courſe of Life, ſuch as
are no fit to be mentioned, unless ne-
cefity in the way of Proof ſhall re-
quire it.
That he hath traiterously endeavoured
to Alienate the Affections of his High-
nels the Duke of York from His Ma-
jesty, by Suggesting unto him Jealoufies
as far as in him lay, and publishing a-
broad by his Emiffaries, that Flis Ma-
jesty intended to Legitimate the D. of
Monmouth.
That he hath Wickedly and Malici-
ously, contrary to the Duty of a Privy-
Councellour of England, and contrary to
the perpetual and most important Inte-
reft of this Nation, perfwaded His Ma-
jefty against the Advice of the Lord
General to withdraw the Engliſh Gar-
rifons out of Scotland, and to demolish
all the Forts built there, at ſo vast a
Charge to this Kingdom.
That
( 149 )
That His Majesty having been gra-
ciouſly pleaſed to communicate the Defires
of the Parliament of Scotland for the
remove of the faid Garrisons to the Par-
liament of England, and to act their
Advice therein, the faid Earl of Cla-
rendon, not only perfwaded His Ma-
jefty actually to remove thofe Garrifons,
without expecting the Advice of his Par-
liament of England concerning it, but
did by Menaces of His Majafty's difpiea-
fure, deter feveral Members of Parlia-
ment from moving the Houfe, as they
intended, to enter upon confideration of
that Matter.
That he had Traiterously and Malici-
ously endeavoured to Alienaie His Ma-
jesty's Affections and Esteem from this
his Parliament, by telling His Majesty
that there was never fo weak and in-
confiderable a Houſe of Lords, nor never
fo weak and fo heady a House of Com
mons, or words to that effect, and
particularly, that it was better to fell
Dunkirk, than to be at their Mercy for
want of Money, or words to that ef
fect.
L 3
That
( 150 )
That he hath Wickedly and Malici,
onfly, contrary to his Duty of Counsel-
lour, and to a known Law made laft
Seffions, by which Money was given, and
particularly applyed for the maintaining
of Dunkirk, adviſed and effected the
Sale of the fame to the French King.
That he hath contrary to Law, enriched
himfelf and his Treafures by the Sale of
Offices.
That contrary to his Duty he hath
wickedly and corruptly Converted to his
own ufe, great and vaft Summs of publick
Money raised in Ireland by way of Sub-
fidy, private and publick Benevolences,
and otherwife, given and intended to
defray the Charge of Government in that
Kingdom. By which means a fupernu-
merary and difaffected Army hath been
kept up there, for want of Money to
pay them of, occafioned it feems to be
because of the late and preſent Distempers
of that Kingdom.
That having arrogated to himſelf a
Jupream Direction of all His Majesty's
Affairs,
( 151 )
Affairs, be hath, with a malicious and
corrupt Intention, prevailed to have
His Majesty's Customs Farmed at a far
lower Rate than others do offer, and that
by Perfons, with fome of whom he goes
a ſhare in, that, and other parts of
Money refulting from His Majesty's Re-
venue.
July 10th,
1663.
BRISTOL.
L 4
The
( 153 )
The Earl of Bristol having Ex-
hibited against the Lord Chan-
cellour, Articles of High-
Treaſon, and other Mifde-
meanours. This Order was
made by the Houſe of Peers.
Die Veneris, 10 July, 1663.
RDERED, by the Lords Spiritu-
al and Temporal in Parliament
Aflembled, That a Copy of the
Articles or Charge of High-
Treafon Exhibited this Day by the Earl of
Briſtol, againſt the Lord Chancellour, be
delivered to the Lord Chief-Justice; who,
with all the reft of the Judges are to con-
fider whether the faid Charge hath been
brought in regularly and legally, and
whether it may be proceeded in, and how,
and whether there be any Treaſon in it
or no, and make Report thereof to this
Houſe on Monday next if they can, or elfe as
foon after as poffibly they may.
Whereupon, all the Judges met at Ser-
jeants-
( 154 )
jeauts-Inn in Fleet-ftreet,and my Lord of Briſtol
repaired to us thither, defiring to fee the
Order, which being Read, he told us he
came out of refpect to know of us whe-
ther we were informed how it came in-
to the House of Peers, whether as a Charge
or not; but one of the Judges, who had
been preſent when it was delivered in,
faying, we were tied up by our Order, his
Lordſhip took fome exception at the man-
ner of his Expreffion, as if his Lordships
Addrefs was unneceſſary at that time,
anb taking it as a rebuke unto him, went
away; but according to our Order, which
fuppofed it to be a Charge of High-Trea-
fon, and not mentioning Mifdemeanour, we
did upon Confideration unanimouſly agree
upon this enfuing Answer, which on Mon-
day the 13th of July, the Lord Chief-Juſtice
Fofter did deliver in, viz.
We conceive that a Charge of High-Trea-
fon cannot by the Laws and Statutes of this
Realm be originally Exhibited by one Peer
against another unto the Houfe of Peers,
and that therefore a Charge of High-Trea-
fon by the Earl of Bristol against the Lord
Chancellour, mentioned in the Order of Re-
ference to us of the 10th of this Inftant July,
hath not been regularly and legally brought
in, and if the Matters alledged in the faid
Charge, were admitted to be true, altho' al-
ledged to be traiterously done, yet there is no
Treafon in it.
Which
( 155 )
Which Answer being given in, the Earl
of Bristol took fome exceptions at it, and
fome of the Lords inferred thence, that
if it were Irregularly and Illegally brought
in, it was a Libel; but we fatisfied them
that it was not under Confideration of us,
whether it came in as an Information or
Charge; our Order required us to give
Answer to it as a Charge.
Secondly, We did not meddle with any
thing concerning accufing him of Mifde-
meanour, for our Order reached only to
Treaſon.
Thirdly, It did not follow that if this
Charge were Irregular, or Illegal, that
therefore he was Criminal: There might
be Preſidents to give Colour to fuch kind
of Proceedings, for which, till it be de-
clared or known that they are Illegal,
they are Titular, and ought not to be pu-
niſhed.
But it was much infifted on, That we
fhould deliver the Reafon of our Opini-
ons, the Lord of Bristol and his Friends
feeming unsatisfied.
We Replyed, That it was never known,
that when the Juftices to whom Questions
were referred from Parliament had una-
nimously agreed in their Opinions, that
Reaſons were required from them. Yet,
notwithſtanding, it being the defire of the
Lords,
( 156 )
Lords after fome things premiſed, and
a deſire that this fhould not be drawn
into an Example, (which the Lords af-
fented unto as I took it, for no Order
was entred concerning it, there being no
Order as I think for delivering our Rea-
fons entred) and it was agreed amongſt
us, that no Note fhould be reduced, leaft
we might be required to deliver our Rea-
fons in writing, nor had I time to digeſt
it in writing, having only Monday Night
after Conference with my Brethren to
think upon it, I did on the next Tuesday,
being the 14th of July, deliver the Reaſons
of all the Judges, of their Opinions, by
their Confents. To the firſt Point, That a
Charge of High-Treafon cannot originally be
Exhibited by one Peer against another unto the
Houſe of Peers, the Emphaſis of the word
originally was fhewed.
For First, an Indictment of Treafon a-
gainſt a Peer may be removed up to the
Lords Houfe to be tryed, as it was in the
31 H. 6. in the Earl of Devonshir's Cafe,
but a Steward was then to be made.
Secondly, If an Impeachment came from
the House of Commons unto the Lords Houfe,
we did not take upon us the Confidera-
tion, whether this could be proceeded in
or not, for it was not the Cafe to which
we were required to give Anfwer.
We
( 157 )
We Replyed, Upon the Statute 1 H. 4.
Chap. 14. which recits the many great
Inconveniencies and Miſchiefs by Appeals,
and provides that all Appeals of Things
within the Realm, fhall be Tryed and Le-
termined by the good Laws of the Realm
made and uſed in the time of the King's
noble Progenitors, and Appeals of Things
out of the Realm before the Conftable
and Marſhal: But We relyed upon the
Clauſe enfuing, and thereupon it is accor-
ded and aſſented, That no Appeals be
from thenceforth made, or in any wife
purſued in Parliament in time to come.
Ï fhewed Appeals in this Statute, and Ac-
cufations by fingle Perfons were one and
the fame Thing, and that this Statute
reached to all Appeals, Charges, Accufa-
tions or Impeachments delivered in, in
Parliament, whereupon the Perfon Ac-
cufed was to be put to his Anſwer, and
that they were but ſeveral Names of the
fame Thing, I fhewed firſt Hiſtorically, that
the Appeals the 11 R. 2. and 21 R. 2.
were but Accufations by thofe Lords of
Felons againſt the other, and differed from
the Cafe of the Duke of Hereford and
Norfolk, which was to be tryed as 21 R. 2.
Pl. Cor. in Parl. No. 19. is by the Courfe
of the Civil Law, and thereupon Batle
was waged. That tho' it concerned H. 4.
in Intereft to confirm the 11 R. 2. and
Repeal
( 158 )
Repell the 21 R. 2. he being Appellant
in the former, yet he faw the Miſchief
fo great, that he himself made Provifion
againſt them for the time to come; and
indeed, the Mifchief was fo great, that
it ceafed not after the deftruction of ma-
ny Lords and Families (there being lex
talionis in that 21 R. 2. ufed towards moft
of thoſe Appellants in the 11 R. 2.) till
it tumbled King R. 2. Firſt out of his
Throne, and then into his Grave.
That there were but two forts of Pro-
ceedings in Capitalibus, the Suit of the
Party which was called an Appeal, or the
Suit of the King, who ought to proceed
by Indictment, and fo to Tryal by vertue
of Magna Charta. Nec fuper eam ibimus,
&c. and that, in an Appeal, being the
Suit of the Party, there was no Preroga-
tive of appearance if it were an Appeal
at the Common-Law, ro Ed. 4
Lord
Gray's Cafe. That an Appeal was taken in
our Law-Books frequently for an accufa-
tion by the Party, I fcited Weftm. the
1ft, Cap. 14. where the words Appeal
reaches to Indictment. And 9 Cook, 119.
Lord Zanchar's Cafe, that an Appeal of
two fignifications, one general and fre-
quent in our Books for an Accufation,
and Stamford, 142. In Cafe of an Appro-
ver, the Felon after Confeffion may Ap-
peal, that is, (faith he) accuſe others, Coad-
jutors
( 159 )
jutors with him to do the Felony. C.C. 189.
Appellant, cometh from the French word
Appeller, which fignifies to accufe, or ap-
peach, and C. C. 287. Appel fignifieth an
Accufation; and therefore to Appeal a
Man is as much as to accufe, and in an-
cient Books he that doth Appeal a Man
is called accufator, vide 9 Ed. 2. Articuli
Cleri, Cap. 16. That I knew no reafon
why in thoſe tumbling Times of R. 2.
(which caufed this Statute, for the Sta-
tute-Roll is comant ad autermant este us
en temps la darren Roy, R.2.) They ſhould
proceed by way of Appeal, but becaufe
they were then allowed at the Suit of
the Party, to accufe any other of Trea-
fon, but at the King's Suit there ought to
be an Indictment, and an Indictment could
not be found but by Jury.
That in all other Cafes, an Appeal was
to be brought by the Party concerned, the
Wife or Heir, or Party Robbed, Gr. But
in Cafe of Treafon, any Man may Appeal
another, and therefore in all reafon it
must be underſtood of an Accufation, and
any Man might accufe another of Trea-
fon; and if it can be proved by Witnef
fes, it must not be Tryed by Battle, as
other Appeals may. I concluded that the
8 H 6. No. 38. this Statute, the 1 H. 4.
Cap. 14. is recited, and defired it ſhould
be duely kept and put in Execution, which
Was
( 160 )
was granted, that Stamford 78. See Pl.
Cor. 31. 132. agree that Appeals of High-
Treaſons were not commonly uſed to be
Sued in Parliament, till the 1 H. 4. Cap.
14. Since which time this manner of Ap-
peal hath gone out of uſe; and I ſaid, I
had fearched many Prefidents, and tho'
of late, there may be a Preſident (as it
was of the Earl of Bristols Father againſt
the Duke of Buckingham, of fome kind of
Impeachment) yet I did confidently be-
lieve there was not fince that Statute,
1 H. 4. Cap. 14. any one Preſident of fuch
an Impeachment at the Party-Suit where-
upon there was any Indictment: In truth
in the Earl of Bristol's Cafe, the Common's
Houſe did Impeach the Duke of Treafon,
and fo the Earl of Bristol's Impeachment
proceeded not.
For the Second Point, That there was
270 Treafon in the Charge, tho' the Mat-
ters in it are alledged to be Traiterously
done. I faid we had peruſed each Arti-
cle feriatim, and we had found no Trea-
fon in them, the great Charge, which is
endeavoured to be proved by many Par-
ticulars, was, That he did Traiterously,
and Maliciously, to bring the King into Con-
tempt, and with an intent to Alien the Peo-
ples Affections from him, fay, &c. fuch and
fuch words, &c.
And
(161)
}
And fo it ruirs on, That in purfuance
of the Traiterous Intent, &c. he did, &c.
and that in farther purfuance of the faid
Traiterous Defign, &c. And in like man-
ner was moſt of the Articels upon which
the Characters of Treafon feemed to be
fixed. I faid that it is a tranfcendant
Miſpriſion or Offence to endeavour to bring
the King into Contempt, or to endea-
vour to Alienate the Peoples Affections from
him, but yet it was not Treafon. This
Statute, 13 Car. 2. Cap. 1. makes Treafon
during the King's Life: But if a Man
calls the King Heretick, or Papift, or that
he endeavours to introduce Popery, (which
is more in exprefs Terms than the Ar-
ticle of that kind infinuates) or by Words,
Preaching, Prayer, to ftir up the People
to hatred or diflike of the Perfon of His
Majefty, or the Eftabliſhed Government;
the Penalty is only Difability to enjoy
any Place Ecclefiaftical, Civil, or Milita-.
ry, and fubject to fuch Penalties as by
the Common-Law or Statute of this Realm
may be infided in fuch Cafe, (which is
Fine and Ranfom, with Imprifonment)
and it limits a time and manner of Pro-
fecution.
There was an Objection made yeſterday
upon the 25 E. 3. That this being in Par-
liament, the King and Parliament had
Power to declare Treafon, and then we
ought
M
( 162 )
ought to have delivered our Opinions
with a qualification, unless it be declared
Treafon by Parliament where this Charge
is depending; to this I Anfwer'd.
1. Tis not Treafon in prafenti, and if
fuch a Declaration fhould be non conftat,
whether it would relate to the time
paſt?
Secondly, That I conceived that the Sta-
tute as touching that Declaratory Power,
extended but to fuch Cafes as were clearly
Felony, as Single Acts, if not Treafon. (the
words being) Whether it be Treafon or o-
ther Felony, but in refpect of the doubts
of Efcheats, which, if Treafon, belonged to
the King, if Felony, to the Lords of the
Fee, it was left to the Parliament. I did
not fay we Refolved the Point.
Thirdly, That admitting the Declarato-
ry Pomer did extend to other Cafes than
fuch as were before the Judges, and was
not taken away by 1 M. Cap. or any o
ther Statute, yet I read my Lord Cooks
Opinion at large, Pl. Cor. Fol. 22. That
this Declaration must be by the King,
Lords and Commons, and by any two of
them alone; and we were now in a ju-
dicial way before the House of Peers on-
ly; and I did affirm as clear Law, that
by this judicial way no Treafon could be
declared nor adjudged, but as were ex-
prefly within the Letter of the 25 E. 3.
and faid, That Statute 25 E: 3. was a
fecond
(163)
fecond Magna Charta, and that their An-
ceſtors thought it their greateſt Security
to narrow, and not to enlarge Treafon,
and Cited i H. 4. Cap. 10. to which in the
Parliament Roll is added Rot. No. 17. (it
coming of the King's Free-grace) That the
Lords did much rejoyce and humbly thank
the King And I read the Statute 1 M
Cap. 1.
That the now Earl of Briftel in my
Lord of Sraffords Cafe, was the great Af-
fertor of the Law againſt Conftructive
and Accumulative Treaſon, which if ad-
mitted, their Lordships could better fug-
geſt unto themſelves, than I expreſt, how
great a Door they would let open to
other Inconveniencies and Mifchiefs to the
Peerage. I concluded with reading the
Act, 14 Car. 2. for Reverfing the Attainder
of the Earl of Strafford; the firſt part
whereof I read to them, wherein is ex-
preſſed, That they who Condemned him,
did purpoſely make an Act of Parlia-
ment to Condemn him upon an Accu-
mulative Treaſon, none of the pretended
Crimes being Treafon a-part, and fo
could not be in the whole, if they had
been proved.
After I had ſpoken to this effect, the
Earl of Bristol feemed to acquiefce, info-
much as concerned our Opinions as the
Cafe
M 2
;
( 164 )
Cafe was delivered to us, but it being to
be put to the Question, whether the Lords
did Concur with the Judges Opinions,
and himſelf being concerned in the Illa-
tive, that therefore the Charge was Ille-
gal and Irregular; yet not being inten-
ded by him, as he ſaid, as a Charge, but
an Information he defired (tho' as the
Cafe was put to us, it was a good In-
ference) that the Voting of that might
be spared till it was Refolved by the Lords
whether he delivered it in as a Charge,
or only as an Information for the Mat-
ter of the Charge if it fhould be thought
fit for their Lordſhips to proceed in it:
After fome Debate upon the Question, the
Lords Refolved the fame Day according
to our Opinions.
First, That a Charge of High-Treafon
cannot by the Laws and Statutes of this
Realm be originally Exhibited by one
Peer againſt another, unto the House of
Peers.
Secondly, That in thefe Articles, if the
Matters alledged in them were admitted
to be true, there is no Treafon in them,
and becauſe the Lords unanimoufly Con-
curred in them, (my Lord of Bristol
freely as as any other) it was by order
entred, that theſe Votes were Nemine Con~
tradicente.
Not
(165)
Note, That in Judge Hattons Reports,
Fol. the Refolution of the Judges is ex-
preſſed to be, That a Peer cannot be Im-
peached but by Indictment, and Mr. Rush-
worth in his Collections, Fol. 272. expref-
fes fuch an Opinion to be delivered by.
the Judges in 1 or 2 Car. but upon fearch
it was found to be entred in the Journal
of Parliament of that time, but it was
cautions referring to the Common-Law
only. But that, for Proceedings in Parli
tament, did not belong to them to De
termine, or to that effect; but no mention
of 1 H. 4. Cap. 14. It hath been credibly
reported that fome of the Judges in my
Lord of Strafford's Cafe, being asked fome
Queſtions, did with the like Caution de-
liver their Opinions, and did fpeak with
Refervaions, (as the Cafe is put) tho'
they upon Hearing, did know the Cafe mif-
put; which, after, troubled the Confcience
of one of them, (ut audivi) being a
grave learned Man. Vide Peacocks Cafe,
Cook Fol. But we, having the Cafe referred
to us in Parliament upon Articles Exhi-
bited in Parliament, did Refolve to deliver
our Opinions without any fuch Reſerva-
tion; and the Act of 1 H. 4. being expreſt
againſt Appeals in Parliament, (and of
Acts of Parliaments after they are once
made, none under the King, and without
him are Interpreters but the Judges. See
Kings Anſwer Printed, in the old Print of
3 Car. I.
(166)
3 Car. 3. at the end of the Petition.) And
therefore did deliver theſe Opinions which
I conceive of great Benefit to the Lords
themſelves, and a juft ground for far-
ther enquiry to be made, whether fuch
Impeachments may be in the House of
Peers for other Mifdemeanours, without the
King's leave, or being Exhibited by his
Attorney.
And fecondly to take into Confiderati-
on the Validity of Impeachments of Trea-
fon by the Houſe of Commons, notwithſtan-
ding the late Preſidents which yet ended
in a Bill, and fo in the Legiſlative, not
Judiciary Way.
FINI S.
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