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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

Case then than if the Treason were general But the Lords still pressing that the Impeachment it self of the Earl of Strafford was Repeal'd in the Act about him Commons We Reply'd one part of the Act ought to be severed from the other and that which is without exception shall stand tho' the other be taken away For suppose a Man Prosecutes in a Court of Justice for what he apprehends to be his right and yet the Cause 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 Forgeth a Deed or Suborns Witnesses and then begins a Suit in some other Court and by those ways attains his Ends. Then a Bill comes before this Parliament to Reverse the Judgment reciting that such a Person hath been a Suborner of Witnesses c. so and so and therefore the Judgment is made void certainly tho' this Person is named to be an evil minded Person yet this lays no blemish on his first 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 Presidents and to three of them nothing was Replyed Lords They Answered the Reason why my Lord Finch was Committed was because of his Flight Commons He was fled before the Impeachment but it was Ordered That he should be Committed when found Then we told them That we must Report to them that be the Treason what it would we could not go to the Lords to have it punished without that disadvantage which the Publishing the Treason before-hand would expose us to by making of Witnesses escaping of Parties and the like then bad them consider whether if we should lay before them a Treason in every Thing circumstanced as Gun-Powder Treason they would not Imprison the Party till the whole Matter was opened Lords They Answered to hear that Case put for in Matter of State other Courses are to be taken and they could see no inconveniency in Publishing that to the Lords which must be Published before 400 in the House of Commons Commons The Commons may proceed with what secresie or openness they please and the Lords are not to take Notice of their Proceedings whether open or secret Farther That by a Matter of State must be understood when a Parliament is not Sitting and we know not whether to resort but when a Parliament is particularly called to prevent the Mischiefs threatning the Kingdom If that be not capable of Remedying no other Council could or we are not bound to resort to that we are excluded ftom that to which we ought to resort Lords That the Lords had us take heed of the Liberty of the Subjects to which they are now fain to have Regard bidding us consider the Bishop of Canterbury's long Imprisonment without knowing the Cause and they must satisfie their Consciences lest they should Commit for Treason and it not prov'd so 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 Prison as well for the one as the other For their Consciences Suppose a Person accused generally they are then to know whether it be Treason and is not it as much that they Commit an Innocent Person so as if the matter was Special December 2. The Lords sent down a Message to the Commons by two Judges to this effect That upon the Report made to them of the last free Conference they are not satisfyed to Commit or Sequester from Parliament the Earl of Clarendon without the particular Treason be mentioned or assign'd who being withdrrwn Lord Torring General M cks Son Moved not to part with any Priviledges of the Commons of England but adhere to the General Impeachment Sir Rob. How The Matter before us is of as great concernment as ever came before us if there should be Malice supposed in a Nation against it self 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 Presidents good and have entred their Protestation in the Lords House asserting the Rights of the Commons of England to Impeach generally So that excepting the Spiritual Lords I think I may say the Major part of the Lords are for us and should we give up this we may be wrested out of all Right and the Commons have no way to proceed to an Impeachment but some Men to be so great as not to be fairly reach'd Therefore adhere Mr. Wall The Lords are a noble Estate but whatever the Matter is they have of late some Advice given them which makes them proceed as they never did yet for scarce any Thing happens betwixt us but they incroach upon us The Militia is now as burthensome 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 insomuch that a good Act provided to that purpose passed not we Impeach'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 modest and only medled with Spirituals but afterwards concerned themselves so much with other Matters that every Thing almost was made to be in Ordine ad Spiritualia and many Kingdoms thereupon break from them The Lords now insist upon one Thing because they say 't is in order to their Judicature perhaps hereafter they will tell us we must come to them on our Knees because it is in order to their Judgment Consider therefore whether there be any hope of giving them satisfaction then whether you will adhere and what you will do afterwards for the present my Motion is to adhere Mr. Vaugh. It is truly said the Business before you seems to be as great as hath been in Parliament many of the Consequences being invisible therefore before you Resolve what to do take the whole Matter before you The difference between the Lords and us is upon a general Impeachment of Treason the Lords after a Free Conference say they will not Commit unless Special Treason be mentioned or assign'd those 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 Resolved say what we would not to be satisfied for I know nothing which they Offer'd but it was fully Answer'd nor any thing left undone to satisfie them if they would have been satisfied what I have to say now is to clear something which the Lords may make much sound of When we urged Presidents and made them our principal Reason we told them the way to decide what was in Difference betwixt the Houses is the usuage of Parliaments but to our Presidents we received no full Answer Then the Lords used this Reason Namely that they cared not for Presidents because it was against the Express Law of the Land I Answer'd them we would join with them if they could shew Law against it and expected what they would Answer but heard nothing Much discourse there was without Application of the Great Charter and of the Statute of 28 Ed. 3. but not applyed so that I thought Law in a Lords Mouth was like a Sword in a Ladies Hand the Sword might be there but when it comes to cut itwould be awkward and useless But I hear since that their meaning was this which must be cleared by mentioning some Laws that by Magna Charta it is provided That no Man shall be taken or Imprisoned 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 shall be attached upon Accusation or be adjudged of Life or Limb but according to the Law 25. Ed. 3. No Man shall be taken by a Petition to the King or his Council unless by Indictment of lawful People or by process of Writ at Common-Law and say they this Case is to none of these 28 Ed. 3. No Man shall be Imprisoned without due Process according to the Old Law of the Land But this Case being neither 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 Consequence there are in the Land many different Laws and proceedings in these Laws and Imprisonment upon them and yet not one of them by Presentment Indictment or Tryal by Peers tho the Lords thought this was the Law and there was no other 1. It is known that the Crown-Law or Prerogative is distinct Law from that between Party and Party 2. There is the Law and Custom of Parliament called a Law ab omnibus quaerenda 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 Presentment yet there is Imprisonment even in that Law 4. There is the Law of Admiralty and the Articles of Cleron where there is proceedings of another Nature and by Imprisonment 5. The Law of Merchants or of the Staple 6. The Law of Arms where is Imprisonment and Death and yet different proceedings 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 gross Ignorance to think it 7. The Law of the Forrest which is most different So that to urge Magna Charta to this purpose as if all Proceedings in those Cases must be according to the Common-Law is absurd Then there are divers Writs in the Register 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 Ecclesiastic de Excommunicato Capiendo Another de Apostata Capiendo to recover a Regular Run-away from his Convent Another called ne exeat Regno to Imprison a Man who will not give Security not to go out of the Kingdom and this is not Traversable any where because it suggests that he will Machinat somewhat hurtful to the Kingdom and upon that Suggestion he is Imprisoned Another when a Man hath a Leprosie Another to burn Hereticks which concern'd the Bishops also if they had pleas'd to think of it These Proceedings are no way agreeable to those mentioned in the Common-Law Then consider how this Resolution of the Lords strikes at the Law of Parliaments 1. It is certain that all Imprisonment by Parliament is not by Presentment Indictment c. So that by this means that Power is taken away 2. Contempt against Parliamentary Authority whosoever he is to appear before them and disobeys them they may Imprison him in the Tower and yet it is not against Magna Charta Whither therefore tends this The Conclusion must be that no Impeachment by the Commons must go on unless it be by Presentment and so 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 only fit to give Money That may be reserved for us but nothing else tho' 23 Ed. 3. saith For redress of grievances in the Kingdom a Parliament shall be called every Year I would know which way we should redress Abuses if we are so far from remedying in Parliament that we must be shut out to the Common Courses in other Courts Obj. The Lords may say if you find the Statutes broken and short you shall have New Answ. And when these New Ones are broken then we shall have a Remedy so rise up Remedy and go to the Remedy ad infinitum for there is no more Reason to think that a Second Law shall be maintained more than the First and what way a Mischief shall be Redressed other than by Parliament I know not So that by this Resolution of the Lords and denying to Commit upon this Ground for they shew'd no other every Thing for which a Parliament is useful is denyed us After all this come to the very Case If a Treason be Committed and the Fame is that A. B. is guilty of it it is lawful to Apprehend him for it If Hue and Cry pursue a Man tho' he be not of evil Fame yet he may lawfully be Imprisoned If it proves false he hath his Remedy but that obstructs not the Law to bring him to Tryal Any Watch-Man may Arrest a Night-Walker and hath a Warrant in Law for it and this is as good Process in Law as any original Writ And after all this Consider with what Kind of Colour when there are weighty Reasons why we should not mention special Treason and that mentioning it generally answers the Petition of Right the whole Commons of England who are in no degree represented by the Lords They only represent their own Persons should be denied the Securing a Person Impeached unless a particular charge be given how prejudicial so ever to the Kingdom Another thing there is no

Right which a Man hath in this Land or any part of the World but his Right is such that if it be kept from him he hath a means to come to it otherways it is Damnum sine Injuria for where the Law gives no remedy there is but a supposition of Right By the same 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 consider then this Case There are in this Kingdom in the Civil State of it three Estates which the King hath then in making Laws There are three Estates whereof the King is Principal sometimes they are mentioned as the King 's three Estates and he none of them The Estates in general are the Commons of the Kingdom who are perfectly represented in this House the Lords another and the King another and these are such 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 Instance If all the Commons of England who are one of the Estates should Accuse one of themselves the Party can have no wrong because the Parliament can have no Action brought against them nor can they be supposed to do any thing for Malice It is the same 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 communicable Law betwixt them but the measure between them is that which is good for the whole for they are the makers of Laws for others but no Laws can be fancied to reach the whole of the Commons or of the Lords So that 't is easily to be seen how it hath been put upon us so that now we are in such a Case we know not to what end we shall proceed upon this or any other Impeachment for by this Judicial power you shall be excluded from any proceedings by Laws of Parliaments and so you take away the whole Right of the Kingdom Quest. But now what shall you do Ans. I see many Inconveniencies which may happen both ways but I see so many this way that if any Man gave such Councel as is Charged upon the Earl of Clarendon it is not so dangerous as the Case before you for the Inconveniencies attending that Councel would quickly shew it self by the Misery following But this is a small thing begun with which like a Canker may eat till it be uncurable and that is as absolutely justifiable as this And now I have said this I am perplexed what to say more for all can bear me witness what respect I have endeavoured to preserve to the House of Peers but I am so sensible of this that tho' I cannot forget my respect to them yet I must lament the Condition into which they have brought themselves first and us next for they cannot think to avoid it The House of Peers is but a New Stile called so as Iurors 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. But Pares Regni is a new Stile It is called the Vpper House and is to be look't upon with Reverence The Lords have a jurisdiction but in this Case I must be plain their granted Jurisdiction ariseth from the House of Common if you Impeach not there your Judicial Power will be very little If a Lord be to be Tried for Treason 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 House is Constituted by the King as a Lord High-Steward and there is no other Judge therefore I know not the Judicature they speak so much of There is another for Writs of Error which are there determined but the Jurisdiction of that is very little for the Inconveniency of the Lords determining what could not be determined in other Courts is so found out 25 Eliz. They are to be brought first into the Exchequer Chamber There is another way when Persons carry Complaints to the Lords which is a Question for Commoners ought not to carry Complaints there except in some Cases from Chancery therefore this Matter of Jurisdiction which they talk of is not such a wonderful thing as they would make it Therefore whatever we shall do after it your Rights being so much concerned that you know not where the stay will be it is necessary that you make a Committee to draw up a Protestation to be made by this House concerning this Matter The Invasion of your Right in it and the danger to the Kingdom by it Mr. Colem The Lords say That committing upon a general Impeachment is against Law and I think it will appear so I deny not but a Mittimus without special Cause is legal and grounded upon the Petition of Right the Reason of which is to secure Men against Commitment by a special Warrant and a Judge ought not to discharge where Treason is alledged but in this Case it is different The Judges cannot discharge a Man Committed after Examination but the Lords ought not to Commit a Man except there be particular Treason If I come before a Justice of Peace and say I accuse this Man of Treason will any wise 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 particular Cause because no Man can Commit in Capital Matters without taking Examination before hand otherwise no Man can justifie a Commitment Therefore I am not satisfied that the Lords had not reason to deny The Commons are in the nature of a Grand-Iury to present but the Lords are the Iudges Commitment is not the Judgment but in order to it and the Lords have a discretionary Power in the Case The Lords say not that they will not Commit but that they are not satisfied to do it without special Matter therefore we ought to send it up Sir Rob. How I have attended the Reasons given against making a Protestation and whatever is said is but levelling a House of Commons with every private Accuser a Justice of Peace it is said must have Evidence before he Commit and this House has had Inducements to Impeach and may not a House of Commons Judge what is Treason as well as Justice of Peace The Inconveniencies and Dangers laid before you if you proceed are nothing in comparison of those on the other side Had the Lords Imprisoned they had before this had the Particular Charge and the Protestation is not to stop it but to make way for

it some other way for it will resolve into a Remonstrance by which you may give the Nation an Account of your Proceedings to come to a Tryal of this Business Mr. Vaugh. By the Protestation spoken of is meant to preserve the Rights of this House upon the whole Matter and to give the Reasons of your Proceëdings Sir Tho. M rs What is said 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 Protestation 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 Exceptions against it for the meaning is that this House Claims its Rights Mr. Garaw First make your Protestation and then Appeal to the King Mr. Vaugh. None can surmize 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 selves And they who speak of it if it were done with evil intent deserve to be called to the Bar when it is brought before you for your Approbation you may either retain or reject it Sir Walt. You. I desire that the House 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 I would be tender of your Priviledges so of giving Offence to the Lords therefore we shall 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 Course warranted by Presidents and Proceedings of Parliaments considering what effect it hath had in late times therefore we may do well to adjourn the Debate and Consider of it Sir Tho. Litt. This Protestation will be like that in the Lord Maynard's Case but somewhat longer and ought to go farther then to one of the Estates and be kept within the walls Mr. Swinf You sent up a Charge to the Lords in general desiring that the Earl of Clarendon should be secured and in covenient time you would send up Articles from that time it hath not been done and the Lords have passed several Votes about it since but you have not passed one First they Voted that they had not complied with your desires for want of particular Treason Then you give them Reasons they are not satisfied with them then a Free Conference they are still unsatisfied and all this while you have not come to any resolution So that till you come to a Vote no Man knows but that you are satisfied with their Answer for when the Matter of the Protestation is brought in we shall not be ready for it till we have resolved 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 obstructed the Publick Iustice of the Kingdom in proceedings of Parliament and is of dangerous Consequence This is necessary because the Lords have heard nothing from you but endeavour to satisfie them Sir Iohn Good This Question will be a greater Accusation of the whole House of Lords than the other is of the Earl of Clarendon If you will go by way of Protestation and keep it within your own Walls I like it better than this Question Sir Rob. How The putting this Question is no Charge upon the House of Lords and therefore if that Gentleman thinks it so great an one sure he thinks the Charge against the Earl Clarendon to be a very small one Is there any Obstruction to Justice If not Why do we not Comply If there be we cannot it seems 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 himself for it If you meet with any Obstructions pray first put the Question whether you are obstructed Sir Rob. Atk. It is no light matter to Charge the Lords with Obstructing Justice therefore the thing being new pray adjourn 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 desire of the Commons in Committing the Earl of Clarendon and Sequestring him from Parliament upon the Impeachment from this House is an Obstruction to the publick Justice of the Kingdom and is a President of evil and dangerous Consequence Resolved That the Question be Put And being put Resolved in the Affirmative Resolved That a Committee be appointed to draw up a Declaration to Vindicate the Proceedings of this House Decemder 3. A Message from the Lords by two Judges That they have received a large Petition from the Earl of Clarendon which Intimates 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 stopping but we should do it tho' it have no effect lest it look as tho' we would have him escape Sir Rob. How The Lords seem now mistaken in their Opinion at the Conference they said there was no fear of his Running away and in our House it hath been Jested that he was not like to Ride Post. Besides the Expression in the Message is withdrawn which may be an inward Chamber therefore 't is fit to desire to see the Petition and Command some Members to prepare something to Vindicate your selves in discharge of your Duty Mr. Seym. You 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 say as doubtful therefore beware lest you do something misbecoming you They only say that he is withdrawn but not what is his Petition for the saying that he is withdrawn is not the Matter of a Petition 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 should let us know it and I cannot think so of the Lords that they would use that word if he were fled therefore send a Message to know whether fled or withdrawn Mr. Sol. Gen. When a Delinquent signifies to his Judges that he is withdrawn it cannot signifie 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

that I may not forfeit Your Lordships Favour and Protection by With-drawing my self from so powerful a Persecution in hope that I may be able by such withdrawing hereafter to appear and make my Defence when His Majesty's Iustice to which I shall always submit may not be Obstructed or Controled by the Power and Malice of those who have sworn my Destruction CLARENDON Mr. Vaugh. I think it not convenient to loose 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 so weighty that I am confident they will be easily and thoroughly proved tho' I know not how so that I admire at his Confidence to Charge this House and so the Nation as his Persecutors and that in such a Condition as he hopes to vindicate himself It s the first time that ever I heard an Innocent Man run away under the greatest Charge with hopes to return again and vindicate himself Then mark one Expression he saith he is as far from Corruption as from Disloyalty If he said he was guilty of neither he had said something but by that Expression he may be guilty of both So insolent a Paper I never met with in this Kingdom nor have I ever read the like in any other so inconsiderable 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 persecuting Therefore without troubling your selves with it do as the Lords have done who deliver it to you as a Scandalous and Seditious 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 shall not have the Character that it is a Scandalous and Malicious Paper and a Reproach to the Iustice of the Nation Resolved upon the Question That the Paper sent to the Lords by the Earl of Clarendon and by them sent down to the House of Commons and now read is Scandalous and Seditious and doth Reproach the King and the Publick Iustice of the Nation Sir Rob. How You have voted this Paper Scandalous and therefore it should not live wherefore I move it should be burnt by the Hangman Mr. Garraw The Paper is the Lords and you must send it to them but enter it into your Books and your Vote upon it Resolved 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 Motion is because the Duke of Buckingham desired the Paper again for the admirableness of the Stile it is entered into their Books already and they need it not to that end therefore desire the Lords Concurrence to burn it Resolved To send it to the Lords to that end December 5. A Motion being made to send to the Lords in pursuance of the Vote about burning the Paper Mr. Vaugh. I am against sending 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 should be rased out which two Things are a perfect Contradiction therefore let it rest as it is We have Voted it Scandalous c. The Lords tell us not that they have done any such Thing tho' they ought to have done it first As for the Earl of Clarendon he being now gone if such a like occasion should fall out we are in a worse Condition than we were for there is this President against us in a Case now Manifest And it becomes us to do something in Order to the Lords Concurring that so a good Understanding may be got therefore I shall propound this to you to be sent up to them to that end Namely when any Subject shall be Impeached by the Commons before the Lords in Parliament with desire to secure him such Person by the Law of the Land ought to be secured accordingly This you have in effect Voted already in saving the Iustice of the Kingdom is obstructed by their not doing it Secondly when such Impeached Persons shall be secured the Lords may limit a certain time for bringing in the Charge to prevent delay of Justice This may Salve all and prevent such ways as may be displeasing to the Lords and perhaps us also in some Cases here after Mr. Swin I am perswded that according to Rules of Parliament when you Charge by Impeachment generally and promise in due time to send up your Charge they ought to secure but they not having done it I question whether you could do what you have but the Earl of Clarendon flying it is Manifest Justice was obstructed for he might have been brought to his Tryal if the Lords had secured him but now your Vote is made good which seems to lay the advantage on your side Sir Rob How I think this Message to the Lords will destroy the way of vindicating our selves by Declaration therefore finish the Declaration and then Resolve before you publish it whether to send up this Message Mr. Vaugh. If the Lords agree with us we may spare the Declaration but if they agree not now they will much less hereafter Your Declaration can amount to no more but this make a Narrative of the invalidity of the Lords Presidents but then you must of necessity do something more else your Labour is in vain therefore this Message with these Votes are necessary Sir Rich. Temp. I expected that when the Earl of Clarendon had been fled the Lords would have desired the King to Issue out a Proclamation to apprehend him seeing they have been the occasion of his Escape therefore now desire their Concurrence to go to the King to that end and if they Concur they have upon the Matter granted Commitment upon a general Impeachment Mr. Vaugh. I thought it my Duty to offer you what I have done if you like it not I desire to be excused in serving 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 Answer and where will that end If you send up your Votes and the Lords agree your end is Answered for it is a yielding that which they have yet denyed Your declaring and entring it upon the Journal will be to no purpose it is but like a Man who having been beaten publickly in the Chamber calls him who did it Rogue Mr. Hampd I desire that the Words Law of the Land may be left out and the Words Law of Parliament or Vsuage of Parliament put instead of them for it hath been shewed us that there are several ways of Impeachment besides Common-Law Mr. Vaugh. Those Words were purposely put in because at the free Conserence when we pressed

the Law of Parliaments the Lords pressed the Law of the Land by way of Negative as if the Law of the Land were otherwise but rather than that shall be any obstruction put it by Law Mr. Stew. Leave out the Words by Law for if a Man be secured it is Implyed 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 last and so have advantage against you but there is another Reason why you should forbear these Votes Namely Prudence The Earl of Clarendon being gone there is an expectation that a Bill should be prepared to do something farther wherein I hope both Houses will join if you send up this you will give disturbance to that Bill and if you should enter this in your Books in Order to send it up hereafter they will hear of it as done to make them swallow their former Resolves Therefore defer it for the present Mr. Trev. Consider whether the Matter hetwixt you and the Lords is not well as it is You have Voted That when a Man is generally Impeached he ought to be secured and that the Lords not having done it is an obstruction to Justice and what will it signifie to carry it to the Lords what hath since fal'n out justifies 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 justifie your Rights but what is the use of it You have already done it in your Books and you cannot expect the Lords should go so much against their own Votes this therefore will but widen the Gap it being telling them they must eat their words Sir Tho. Litt. Those who have had a hand in the charge against the Earl of Clarendon have been thought sometimes too Violent sometimes too Remiss as not able 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 something 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 exasperate It is now unseasonable to make the Lords retract therefore lay it aside for tho' I am confident that Gentleman did it to no such end yet if I would Design any Thing to the Earl of Clarendon's advantage I could not take a better way than this Mr. Vaugh. This is but the affirming all which hath a been done already and I am for none of those who are contriving for any Thing out of the House Sir Will. Covent This Question is not now seasonable tho' it is a better expedient than the Declaration as Things now stand and considering what hath past 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 seeing your Votes may be of use hereafter put no Question at all but adjourn the Debate to a proper Season Mr. Vaugh. I am against the Adjourning of it and have given Testimony that I have done nothing to be thought to do that which is so much for the advantage of the Earl of Clarendon and shall take heed of doing any Thing hereafter to be so reflected on Sir Tho. Litt. I hope I avoided any such Reflection nor speak any Thing to such purpose I do not beleive nor ever did think any such Thing and hope that Gentleman himself believes that no Man in this House hath more Honour for him than I. Sir Iob 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 Resolved upon the Question That the Question be put Resolved That both the Questions propounded by Mr. Vaugh. and put singly in the Affirmative 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 several Objections being made and it being Alledged that it was an abuse put upon the Commons by the Lords and that a Bill of Attainder being propounded after some Debate the House pass'd this Vote Resolved That this House taking notice of the flight of the Earl of Clarendon being under an Impeachment of High Treason by this House the King's Majesty be humbly desired to Issue out his Proclamation for Summoning the said Earl to appear by a Day and to apprehend him in Order to his Tryal Resolved To send to the Lords for their Concurrence to this Vote December 14. A Message from the Lords for a Conference at which they delivered two Reasons why they could not Concur 1. First for that they conceive a Proclamation in the way proposed would be ineffectual since it is not supaena Convictionis which cannot be till particulars in Order to Tryal be declared 2. That what the House of Commons hath proposed and do propose at present is intended in Order to a judicial way of Proceeding but since the Earl of Clarendon's Flight their Lordships upon Consideration of the whole State of Affairs and of the Kingdom have upon Grounds of Prudence and Iustice thought fit for securing of King and Kingdom to proceed in a Legislative way against the said Earl and haue to that end past and sent down to them a Bill of Banishment and Incapacity against him with which this Vote is inconsistent December 16. The said Reasons from the Lord being Reported and Considered and it being Moved that the House would declare themselve unsatisfied with them Sir Tho. Cliff I am against passing a Vote at present upon the Lords Reasons but read the Bill sent down from thence and Summons him by it to appear by a Day Mr. Trev. Some are against the Bill because it goes too far Condemning before Hearing others would have it to go farther 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 neither be heard nor tryed by you Tho' you expected to have him secured by a general Accusation yet you never expected Judgment upon it Then it is said 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 necessary in this Case Then consider whether this Bill will Answer our Ends and if it doth delay will make it worse I think we should make it reach them

him the King can do it without your help for he may be Outlawed for High-Treason for tho' that be Reversable at Common-Law if he be beyond Sea yet by two express Acts of Parliament it is otherwise but the King cannot Banish him without your Concurrence Suppose him Fled and Attainted so that the Question is not upon his Life but his Estate suppose your Justice satisfied in that is it not past all manner of Consideration that the King cannot upon Application restore it So that all you lookt for by Attainder is done by this Bill of Banishment for his Life is saved by Flight as would his Estate by Compassion but there is something in this Bill which without it you can never get that is you put him under your Displeasure which the King cannot Pardon and and will you have it thought abroad that the Earl of Clarendon fled as he is hath been something too hard for the Two Houses Sir Tho. Litt. If there be a necessity of differing with the Lords and I thought the difference would produce such Effects I should not speak but they only tell you 't is unnecessary and ineffectnal You have Impeached and are now told if you proceed it will make difference but I fear another greater Danger than this difference The World will say you were willing he should fly because you could not prove by flying he hath Forfeited his Estate if the King give it him again it is his Mercy but do you Justice Therefore press for a Proclamation for the Bill is inconsistent with your Honour Mr. Vaugh. I have listned with much attention to this Discourse and understand it as little now as at the beginning the Discourse being nothing adequate to that end You have Reasons from the Lords 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 Concur you may have a Proclamation if not as I think they will not you are where you were We suppose him not to be in England and if so what is the Proclamation more than the King 's Writ it reacheth no Man out of the Kingdom It s true in some Cases if the Persons are gone out of the Land they are Summon'd and if they come not their Lands are Seized but it is not by Proclamation which signifies nothing if the Party be gone Then go on suppose the Lords Joyn in desiring a Proclamation the end of which is Appearing and Apprehending possibly you gain one part that if he be apprehended they do Imprison 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 ipsum Dominum Regem but per mandatum Domini Regis because against the King lies no Damages What then must you do many think it injustice to proceed if he be not called by Proclamation But it is plain if you proceed upon this Bill you go not upon your Impeachment but because he is fled from the Justice of the Land wherewith you have Charged him in burning his Paper and it imports little that he saith he is Innocent for why then doth he fly Shall we abate him of what he ought to suffer for his saying so He is fled from the Justice of the Parliament and therefore is proceeded with and for what others say you ought not to regard popular Reasons but to pursue your own it is enough for you to hear some Proofs made When was it known in any Court that Proofs should be taken only on one side So that you cannot acquit your own Justice nor bring him any ways to Answer he being gone nor can you have any effect of the Proclamation tho' the Lords join in it Therefore 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 last the Question was put whether the Bill should be Read and Committed 109 for it 55 against it 164 December 18. The Bill for Banishing the Earl of Clarendon was Reported from the Committee and Read Sir Rob. How I desire that to the Preface of the Bill this addition may be made That whereas the Earl of Clarendon was Impeached of Treason by the Commons who desired he might be secured but was not and thereupon is fled And this to the end the protesting Lords may be gratified who took so much Care of the Commons Sir Rob. Carr. Seconds the Motion Sir Iohn 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 Records and there the Protest 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 see we have some Cause to Pass this Bill neither deal so modestly with a Man who flies from Justice as to use his own Word withdrawn but call it flying Sir Tho. Gow Let the Words be that having been Impeached and Moved to be Secured hath withdrawn himself Mr. Solicitor The word Moved destroys the Bill it self the word of the Bill is to Unite the Two Houses and this Amendment tends to destroy that End for the addition to the Preface being insisted on the Lords will add the Reasons for not Committing and so revive the whole Matter again Let the Lords add in their Books what they will your Books will as much justifie you as theirs them Sir Hum. Win. Let the Words be added whether the Lords agree or not that it may appear upon our Books Mr. Hugh Boscow The Preface is but History yet add the Words and let the Lords insert what they please I should rather Concur with them than leave out those Words Mr. Vaugh. Put no Question upon these Words but whether the Preface shall go as it is The Bill in all probability is a safe Bill because it came from them But if you begin an Alteration you your selves render it unsafe for if you put in these Words then the Lords will add for want of Special Matter and so it will come to nothing Then the Bill was read the Third time Mr. Vaug. I am against the Word Withdrawn and for the Word Flight instead of it and in regard the Justice of this Bill depends upon the Word Flight put it expresly Sir Rob. Carr. I am against this Bill tho' I was as earnest in the Matter as any one while I thought there was Proof but now none appearing I am against the