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A38261 The proceedings in the House of Commons, touching the impeachment of Edward, late Earl of Clarendon, Lord High-Chancellour of England, Anno 1667 with the many debates and speeches in the House, the impeachment exhibited against him, his petition in answer thereto : as also the several weighty arguments concerning the nature of treason, bribery, &c. by Serj. Maynard, Sir Ed. S., Sir T.L., Mr. Vaughan, Sir Rob. Howard, Mr. Hambden [sic], and other members of that Parliament : together with the articles of high-treason exhibited against the said Earl, by the Earl of Bristol in the House of Lords on the 10th of July, 1663 : with the opinion of all the learned judges therein. England and Wales. Parliament. House of Commons.; Clarendon, Edward Hyde, Earl of, 1609-1674.; Vaughan, John, Sir, 1603-1674.; Seymour, Edward, Sir, 1633-1708.; Littleton, Thomas, Sir, d. 1681.; Hampden, Richard, 1631-1695.; Maynard, John, Sir, 1602-1690.; Howard, Robert, Sir, 1626-1698.; England and Wales. Parliament. House of Lords. 1700 (1700) Wing E2683; ESTC R3660 65,855 176

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declared not to Impeach of Treason upon the first Article And if any Man will add to the rest of the Articles he may but you ought to accuse Mr. Sollicitor None accuseth but for Justice sake and should be glad if the Party accused 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 clapsed for the Crime is more than what is mentioned in the Act made by you it is an Offence at Common-Law and if it be prosecuted by Fine and Imprisonment no time is limited The Third and Fourth Articles read and Voted Mr. Vaugh. Your reading every Article is needless unless it be to see whether any one may be Charged as Treason for if one may be objected against so may all as to Misdemeanours Fifth Article read Sir Iohn Sh w. The old Farmers had not the Customes till others said 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 Sir Tho. Litt. It appears by the Farmers Confession that they had it 50000 l. under besides time of Payment which was 30000 l. more Mr. Seym. Your are at liberty to receive Objections to the Articles but tho' others bad more they were told they should not have it and had about 1000 l. each given them to bid no more Sixth seventh Eight and Ninth Articles Read and Voted The Tenth 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 should be accused of Treason and found by the Statute of 25 Ed. 3. he could not tho' it was absolute Treason at Common-Law and it s reported abroad that I said that the Right of the Parliament in declaring Treason is taken away which I did not for there are Treasons not mentioned in that Statute Therefore it provided that the Judges should not upon any one Treaso proceed to Judge untill declared before the King and Parliament and what is signisfied by it If we think before the King Lords and Commons that is impossible for how can the Commons possibly declare before the King and Lords nor was that the Case but this that there is the ultimate Power of determining what the Law is in a doubtful Case In Writs of Error let them pass from Court to Court at last they come to the Lords 24 Ed. 3. If the Judges cannot resolve what the Law is it is to be brought thither that is where it is questionable but that is not in the House of Commons any more than in a Writ of Error How than is the Case here If a Question be whether a Thing is Treason or not it shall be Resolved where the Law useth to Resolve that is before the King in Parliament that is in the Lords House Had the Words of the Act been these there shall be no Proceeding untill Resolved by the King in the Lords House and Suppose that Clause taken away That Treason shall not be Resolved but suppose it shall not be declared otherwise doth it follow it is taken away No if you charge Treason which is not within the Statute it is another Thing but I said not there is no Treason at Common-Law Mr. Sollicitor There was a great Mischief in the declaring Treason by Parliaments for Mortimer was made a Traitor for incroaching upon Royal Power which every Man who incroacheth upon any Power doth Hence the Commons Petition'd the King to explain what incroaching upon Royal Power was and when no Answer could be gotten to it 25. Ed. 3. They Petion'd it might be declared certainly and so Treasons were enumerated and if the Judges be in doubt it is Provided that the King and Parliament shall first declare it Declaration in Parliament is a Declaration before the King Lords and Commons Would our Ancestors leave what is to be Resolved Treason to the Lords and themselves have no share in it And Talbots being declared Treason by the Lords is said to be no Treason by Judge Cook because the Commons had no hand in it there is no Treason in Common-Law because there can be no Treason where there is no way to Judge it which is not at Common-Law Mr. Vaugh. When the Law is made uncertain the Lords must declare it it appears there were Treasons at Common-Law not mention'd 25 Ed. 3. It is one Thing for a Matter to be Treason before and the Parliament to declare it another for the Parliament to make a Thing Treason which was not Sir Will. Lewis I desire to be Resolved whether Dunkirk was annexed to England because a Bill to that end was carryed but not Passed Mr. Waller To shew that Dunkirk was annexed to England consider we were Passing a Bill for 1200000l But when we were making a Preamble to the Bill we were to seek for Reasons for giving the Money seeing we had no War some said to keep Dunkirk but were told we should take heed of looking upon it as annexed unto the Crown but it was replyed Dunkirk was look'd upon as a Frontier Town and accordingly noted in the Bill Therefore the Sale of it Treason Mr. Coven Had it been part of the Crown of England what needed a Bill to make it so Mr. Pr n. It cannot be Treason because Sold by the King's consent Mr. Vaugh. If the King agreed to it doth it follow that he who adviseth the King to a Thing destructive to his Kingdom and King is not a Traitor If any part of the King's Dominions may be alienated especially when a Parliament is Sitting for they concurring it may be alienated by the same Reason 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 say not Tangier for that was part of his Portion and is his own But Dunkirk would have been the Kingdoms if not thus disposed of and tho' it might have been alienated with the Parliament it could no more without than England or Ireland 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 Ambassadour might press 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 shews it was the King's Will to have it annexed accordingly this Parliament passed it and Dunkirk might have been as useful as Calice At length this Article was passed by without determining whether Treason or not Eleventh Twelfth Thirteenth and Fourteenth
the Affections of His Majesty's Subjects from him by venting in his own Discourse and by the Speeches of his nearest Relations and Emissaries opprobrious Scandals against His Majesty's Person and course of Life such as are not fit to be mentioned unless necessity in the way of Proof shall require it That he hath traiterously endeavoured to Alienate the Affections of his Highness the Duke of York from His Majesty by suggesting unto him Iealousies as far as in him lay and publishing abroad by his Emissaries that His Majesty intended to Legitimate the D. of Monmouth That he hath Wickedly and Maliciously contrary to the Duty of a Privy-Councellour of England and contrary to the perpetual and most important Interest of this Nation perswaded His Majesty against the Advice of the Lord General to withdraw the English Garrisons out of Scotland and to demolish all the Forts built there at so vast a Charge to this Kingdom That His Majesty having been graciously pleased to communicate the Desires of the Parliament of Scotland for the remove of the laid Garrisons to the Parliament of England and to act their Advice therein the said Earl of Clarendon not only perswaded His Majesty actually to remove those Garrisons without expecting the Advice of his Parliament of England concerning it but did by Menaces of His Majasty's displeasure deter several Members of Parliament from moving the House as they intended to enter upon consideration of that Matter That he had Traiterously and Maliciously endeavoured to Alienate His Majesty's Affections and Esteem from this his Parliament by telling His Majesty that there was never so weak and inconsiderable a House of Lords nor never so weak and so heady a House of Commons or words to that effect and particularly that it was better to sell Dunkirk than to be at their Mercy for want of Money or words to that effect That he hath Wickedly and Maliciously contrary to his Duty of Counsellour and to a known Law made last Sessions by which Money was given and particularly applyed for the maintaining of Dunkirk advised and effected the Sale of the same to the French King That he hath contrary to Law enriched himself and his Treasures by the Sale of Offices That contrary to his Duty he hath wickedly and corruptly Converted to his own use great and vast Summs of publick Money raised in Ireland by way of Subsidy private and publick Benevolences and otherwise given and intended to desray the Charge of Government in that Kingdom By which means a supernumerary and disaffected Army hath been kept up there for want of Money to pay them off occasioned it seems to be because of the late and present Distempers of that Kingdom That having arrogated to himself a supream Direction of all His Majesty's 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 Persons with some of whom he goes a share in that and other parts of Money resulting from His Majesty's Revenue July 10th 1663. BRISTOL The Earl of Bristol having Exhibited against the Lord Chancellour Articles of High-Treason and other Misdemeanours This Order was made by the House of Peers Die Veneris 10 July 1663. ORDERED by the Lords Spiritual and Temporal in Parliament Assembled That a Copy of the Articles or Charge of High-Treason Exhibited this Day by the Earl of Bristol against the Lord Chancellour be delivered to the Lord Chief-Iustice who with all the rest of the Judges are to consider whether the said 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 else as soon after as possibly they may Whereupon all the Judges met at Serjeauts-Inn in Fleet-street and my Lord of Bristol repaired to us thither desiring to see the Order which being Read he told us he came out of respect to know of us whether we were informed how it came into the House of Peers whether as a Charge or not but one of the Judges who had been present when it was delivered in saying we were tied up by our Order his Lordship took some exception at the manner of his Expression as if his Lordships Address was unnecessary at that time anb taking it as a rebuke unto him went away but according to our Order which supposed it to be a Charge of High-Treason and not mentioning Misdemeanour we did upon Consideration unanimously agree upon this ensuing Answer which on Monday the 13th of Iuly the Lord Chief-Iustice Foster did deliver in viz. We conceive that a Charge of High-Treason cannot by the Laws and Statutes of this Realm be originally Exhibited by one Peer against another unto the House of Peers and that therefore a Charge of High-Treason by the Earl of Bristol against the Lord Chancellour mentioned in the Order of Reference to us of the 10th of this Instant July hath not been regularly and legally brought in and if the Matters alledged in the said Charge were admitted to be true altho' alledged to be traiterously done yet there is no Treason in it Which Answer being given in the Earl of Bristol took some exceptions at it and some of the Lords inferred thence that if it were Irregularly and Illegally brought in it was a Libel but we satisfied them that it was not under Consideration 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 accusing him of Misdemeanour 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 such kind of Proceedings for which till it be declared or known that they are Illegal they are Titular and ought not to be punished But it was much insisted on That we should deliver the Reason of our Opinions the Lord of Bristol and his Friends seeming unsatisfied We Replyed That it was never known that when the Justices to whom Questions were referred from Parliament had unanimously agreed in their Opinions that Reasons were required from them Yet notwithstanding it being the desire of the Lords after some things premised and a desire that this should not be drawn into an Example which the Lords assented unto as I took it for no Order was entred concerning it there being no Order as I think for delivering our Reasons entred and it was agreed amongst us that no Note should be reduced least we might be required to deliver our Reasons 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 Iuly deliver the Reasons of all the Judges of their
Bill because you are Confirming what the Lords have done Mr. Vaug. Many Men wonder that no Reason is given for passing this Bill but the Question is mistaken the Bill is grounded upon his Flight after his Impeachment and his flying Implys some Guilt if none it is the safest Argument for any Man to run away and then there is nothing to catch him A Proclamation to a Man out of the Kingdom signifies nothing But in the whole it is plain that he saith that finding the King's Justice obstructed in Parliament he is fled Obj. But it will be said upon bare Flight never was any Man Punished Answ. If one Man kills another and flies tho' upon his Tryal he shall be acquitted yet he shall never recover his Goods because of his Flight There has been several Acts of Banishment Spencer c. And in this is something more severe than in them Namely that none shall Correspond with him then there is some advantage Namely that if he come in by the First of February all shall be void but when the Crime is laid and his Flight makes him Guilty he ought not to have a Day Then the Question was put for passing the Bill 65 For it 42 Against it 107 And then the House Adjourned ARTICLES OF HIGH-TREASON And other Heinous MISDEMEANOURS Exhibited against Edward Earl of Clarendon Lord High-Chancellour of England in the House of Lords on the Ioth of Iuly 1663. By the Earl of Bristol 1. THAT being in Place of highess Trust and Confidence with His Majesty and having arrogated a Supream Direction in all His Majesty's Affairs both at Home and Abroad hath Wickedly and Maliciously and with a Traiterous Intent to draw Scandal and Contempt upon His Majesty's Person and to alienate from him the Affections of his Subjects abused the said Trust in manner following viz. That he hath Traiterously and maliciously endeavoured to Alienate the Hearts of His Hajesty's Subjects from him by words of his own and by artificial Insinuations of his Creatures and Dependances that His Majesty 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 several Persons of His Majesty's Privy-Council held Discourses to this effect viz. That His Majesty was dangerously corrupted in his Religion and inclined to Propery That Persons of that Religion had such Access and such Credit with him that unless there were a careful Eye had unto it the Protestant Religion would be overthrown in this Kingdom and in pursuance of the said Wicked and Traiterous Intent upon His Majesty's admitting Sir Henry Bennet to be Principal Secretary of State in the Place of Mr. Secretary Nicholas he hath said these words or words to this effect That His Majesty had given 10000l to remove a zealous Protestant that he might bring into that Place of High Trust a concealed Papist notwithstanding that the said Sir Henry Bennet is known to have ever been both in his Profession and Practice constant to the Protestant Religion That in pursuance of the same Traiterous Design several near Friends and known Dependances of his have said aloud that were it not for my Lord Chancellours standing in the Gap Popery would be introduced in this Kingdom or words to that effect That in pursuance of the aforesaid Traiterous Design he hath not only advised and perswaded the King to do such things contrary to his own Reasons and Resolutions as might confirm and encrease the Scandal which he had endeavoured to raise upon His Majesty as aforesaid of his favour to Popery but more particularly 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 present to his Royal Consort the Queen That in pursuance of the same Wicked and Traiterous Design he had recommended to be employed to the Pope one of his own Domesticks Mr. Rich. Bealing a Person tho an avow'd Papist 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 said Traiterous Design he being chief Minister of State did himself write by the said Mr. Rich. Bealing Letters to several Cardinals pressing them in the King's Name to induce the Pope to Confer a Cardinals Cap on the said Lord Aubigny promising in Case it should be attained exemption to the Roman Catholicks of England from the Penal Laws in force against them by which Address unto the Pope for that Ecclesiastical Dignity for one of His Majesty's Subjects and Domesticks he hath as far as from one Action can be inferred traiterously acknowledged the Popes Ecclesiastical Soveraignty contrary to the known Laws of this Kingdom That in pursuance of the same traiterous Design he has called unto him several Priests and Iesuits whom be knew to be Superiors of Orders here in England and desired them to write to their Generals at Rome to give their help for the obtaining from the Pope the Cardinals Cap for the Lord Aubigny as aforesaid promising great Favour to Papists here in Case it should be effected for him That he hath promised to several Papists he would do his endeavour and said he hoped to compass the taking away all Penal Laws against them which he did in pursuance of the traiterous Design aforesaid to the end they might presume and grow vain upon his Patronage and by their publishing their hopes of a Tolleration encrease the Scandal endeavoured by him and by his Emissaries to be raised upon His Majesty throughout the Kingdom That in pursuance of the same traiterous Design being intrusted with the Treaty betwixt His Majesty and His Royal Consort the Queen be concluded it upon Articles scandalous and dangerous to the Protestant Religion That in pursuance of the same traiterous Design he concluded the same Marriage and brought the King and Queen together without any settled Agreement in what manner the Rights of Marriage should be performed whereby the Queen refusing to be married by a Protestant Priest in case of her being with Child either the Succession should be made uncertain for want of the due Rights of Matrimony or else His Majesty to be exposed to a suspition of having been married in his own Dominions by a Romish Priest whereby all the former Scandals endeavoured to be raised upon His Majesty by the said Earl as to point of Popery might be confirmed and heightned That having thus traiterously endeavoured to Alienate the Affections of His Majesty's Subjects from him upon the score of Religion he hath endeavoured to make use of all the malicious Scandals and Iealousies which he and his Emissaries had raised in His Majesty's Subjects to raise from them unto himself the popular Applause of being the zealous Vpholder of the Protestant Religion and a promoter of new Severities against Papists That he hath traiterously endeavoured to Alienate