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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
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

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

a Member of this House and I assure you that if he shall be found Guilty no Man shall 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 Conscience 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 must be if there be Cause such Accusations are not to be passed over in silence I believe not one truth in the Law more than this Proposition That there is no such thing as Treason by Common-Law or by Equity and we hold our Lives by that Law before the 25th of Ed. the 3d. a Man could scarce speak any think but it was Treason in Parliament or out but no Man ought to die as a Traitor who hath not literally offended that Law or some other made since There is indeed in that Law a Proviso about the Parliaments declaring what is Treason but note the danger 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 Declaratory by pronouncing Judgments And tho' I know not what the Legislative 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 Treason which is not in the Common-Law Felony before The Proviso in Strafford's Case was it's true made for Inferior Courts but I hope we shall not so proceed as must needs draw after it a Netrahatur in Exemplum and your own Act this Parliament shews That all done by Strafford a-part or together was not Treason And it behoves us to take heed we thwart not our own Argument For the manner then Consider how you should proceed if it were out of Parliament and how the bringing of it into the House alters it If it were out of Parliament without doubt the Accusation should be proved before hand and those who discover it are guilty of Felony This provides for the Subject that the Witnesses must be Two and for the King that none shall discover the Evidence But suppose the Charge be for Misdemeanours the Tryal then is not to be by the Lords but by the Commons for the Lords are his Peers only in Cases Capital How then doth the bringing it in to Parliament alter the Case If the Parliament set aside Laws in this Case we should be happy to see Law declaring what is the power of Parliaments There is no President produced which is singly of Weight to guide you therefore if you proceed let it be as near as possible by the good Old Laws Namely That there be an Accusation founded upon an Oath and the Evidence kept secret I propose that way for the very reason that others oppose it viz The Accusation goes over the Kingdom and it will bring dishonour to the House the King and the Earl For the Honour of the House it will be hard to say the Charge was brought in upon misinformation a Person accused for advising to bring in Arbitrary Government 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 deserves no less Punishment then if it were but if not found Guilty Consider the Case If one say A killed a Man and it is not so must not he give reparation We have an accusation upon hear-say but if it be not made good the blackest Scandal which Hell can invent lies at our door 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 Case will not hold paralel He was accused of Bribery which might be proved by their own Books but this is for Scandalizing the King c. And where shall the Committee of Grievances enquire about it you say let them hear the Persons But suppose they be of the Lords House Can you send for them Or if you do will they come and say it The matter of this Accusation is such that if it lies in the knowledge of a single Person if he delivers it extrajudicially which he doth if not upon Oath he may be undone by it and hazard his Person too At the Committee of Grievances the Persons must be known and what they can say and then we may conclude what will follow Besides their Quality may be such as they cannot be brought or their Discretion such as they will not answer Sir Rich. Temp. Tell but the Lords that a Man in publick place hath misbehaved himself and they will sentence him if he purge not himself Never yet were Witnesses examined before the Tryal in case of Treason or Felony for then if there be two Witnesses a way may be found by Poyson or some other way to take away one Serj. Mayn No Man can do what is Just 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 say upon this proof in my Conscience This Man is guilty Common Fame is no ground to accuse a Man where matter of Fact is not clear to say an Evil is done therefore this Man hath done it is strange in Morality more in Logick Upon the whole Debate it was Voted That the Committee do reduce the Accusation to Heads and present them to this House November 6th 1667. Sir Tho. Litt. Reports that the Accusation was reduced to Heads which he read in his Place and afterwards delivered the same in at the Clerks Table which are as followeth ' viz. I. THAT the Earl of Clarendon hath designed a Standing Army to be raised and to govern the Kingdom thereby and advised the King to Dissolve this present Parliament to lay aside 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 falsely and seditiously said That the King was in his heart a Papist or Popishly Affected or words to that effect 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 proceedings at Law against them and other illegal Patents formerly Granted IV. That he hath Advised and Procured diverse of His Majesty's Subjects to be Imprisoned against Law in remote Islands Garrisons and other Places thereby to prevent them from the Benefit of the Law and to produce Presidents 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 same and great pretended Debts to be paid by His Majesty

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

not say For Scarce any Man can tell what was Treason before 25 Ed. 3. was made to bring things to a Certainty and what was uncertain to them who made that Law can be certain to us now As the Judges can declare no other Treason so in your Declaratory Power neither can you declare Treason unless there be Resemblance to some other like Case The Advice said in the Article to be given the King cannot be within that Statute unless the Councellour must run the hazard of his Advice Mr. Vaugh. The greatest Declarations of Treasons which ever were equal not those 22 Rich. 2. in Nottingham Castle The Judges are called to deliver their Opinions upon their Faith and they declare the Acts to be Treason because Felony before and tho'some of them were hang'd for it yet the Parliament declared the same Thing Serj. Mayn Was what is mentioned Treason by the Common-Law tho' so said by the Lords And what was so declared was repealed H. 4. Sir Tho. Litt. Pray resolve whether it was Treason by Common-Law and if so when made so Some think not because they find not the Parliament declaring them Treasons as being so at Common-Law and that that Statute was made to bound them but that was only to bound Inferior Courts not themselves for the Parliament makes not a new Crime and then Condemns it but the Crime was before and the Parliament declares it Sir Ed. Thur. Hath the Parliament declaratory Power now Yes but it must be by King and Parliament so it was in the Case of the Genoua Ambassador The Judges would not conclude the Articles Treason nor would the Lords alone and if you come to an equal declarative Power with them you must examine Witnesses or go by a Bill Serj. Charl. The Question is Whether it be Treason by the Practice of England the common-Common-Law is the Custome of England and the usuage is grounded on Presidents I know not one President where Words or Intentions were Treason at common-Common-Law for they are not Treason where no Act follows Sir Rich. Temp. The Article is Treason by Common-Law and Judges have recourse to Glanvil c. Who say that giving Advice to overthrow the Realm is Treason by Common-Law Serj. Mayn The Question is whether he shall be Impeached of Treason upon this Article If you go to Treason at Common-Law before 25 Ed. 3. you fly out of sight for the word Seductio was soon after called Seditio Seducing but not said to what nor were those Authors ever reputed of Authority It 's true they are sometimes quoted for Ornament but not Argument and not one Case in one hundred of Glanvil is Law but when a Case comes that is the Sheet-Anchor of Life and Estate you should be wary for by Wit and Oratory That may be made Treason which is not and this which is a great Crime ought not because great to be made Treason Object But it will be said levying War against the Law is against the King and here was an intent to alter the Law Answ. True yet a design no levy War is not Treason 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 Treasons than are metnioned for it faith if any Case happen the Judges shall stay till the King and Parliament hath declared so that there is a Power but the Modus is the Question whether by Impeachment or Bill you may the latter not the former It was done but you have Repealed it and have said None of which pretended Crimes are Treason and what was pretended against him * Of Strafford That he had Traitorously Endeavoured which is worse than design'd to alter the Government c. Now where is the Difference Here is advice to Raise an Army there to use an Army Raised and these you have called pretended Crimes and no Treason which is not Comprechended by a Law but to Impeach as a Treason and yet the thing No Treason is strange In this House 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 Judgment but as an Impeachment is only an Accusation So that whatsoever the Consequence is the Lords judge it and it never comes back to you and if you go by Bill you make it Treason ex post sacto Mr. Vang Concerning what you have declared about Straffords that this Case is if not less equal to it and you have declared that not one Charge aganst him is Treason is true thus far when that Act was made I repaired to it because there were some Things which should not have passed so if there had not been something to secure such Charges as these for there is no expression of any Particular Charge but that the Charge against the Earl of Strafford was not in the particular Treason and in the Ciose of the Bill it is said that the whole Proceeding shall be taken away and if so no Man should speak against the Particulars but look on it as Repealed Then this is said to be levying War and its true it must be Actual and so not within 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 Banishment because the Sentence 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 But it may be thought I have not dealt ingenuously with the House than which I abhor nothing more when the Case of Strafford was before the Lords I was of opinion the Parliament had no Declarative Power left because 1 Hen. 4. there was an abolishing of all declared Treason and that no Treason for the future should be so and then the Treason about the Genoua Ambassadour was gone and all declared Treasons were gone 1 Hen. 4. and no Statute hath recovered them and if all Actual Treasons were taken away 1 Hen. 4. or if not then 1 Ed. 6. then what doth the first of Q. M. do unless it take away all declaratory Treason Upon the whole the Question was whether to accuse of Treason upon the first Article Yeas 103. Noes 172. 275. November 11. The Second Article was read Mr. Pr n. Let the Act made by you about defending the King be Read because it limits Prosecution 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 Person accused if the Charge be not proved let the Party himself plead it you had that which induced you to Impeach him and have

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-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

Opinion upon it and carrying it up to the Lords that Judgment will be utterly Damned else you may proceed by Act but consider then the Consequence 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 bounding for an Act it self is subject to exposition but your Vote and the Lords Concurrence is not Mr. Vaugh. It is not safe for you to Circumscribe Priviledges therefore that must be done which may take away what destroys them The Laws and Rights of this Kingdom are 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 Parliament and whatever is both may be altered by a New Law and how is it possible 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 passing King Lords and Commons Then it being moved to put the Question for confirming that Report And it being Replyed that some passages in that Business viz. about keeping the Speaker in the Chair were not warrantable and so not to be joined in the Question with the rest Mr. Vaugh. That Business which is so much talked of and Condemned I shall state to you The House is to adjourn it self tho' sometimes the King advised them to Adjourn themselves as then he did but the Adjournment 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 Message Sir Iohn Elliot stood up to Speak but the Speaker would not hear him but was going to leave the Chair whereupon some said if you go out without a Question the Parliament is Dissolved upon which he was leaving the Chair some kept him and told him if this be a House 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 Resolved That the Iudgment given against Sir John Elliot c. 5 Car. was an illegal Iudgment and against the Freedom and Priviledge of Parliaments The Lords sent for a present 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 Proceedings and gave Reasons why it was not yet time for a free Conference Novvember 25. After Debate whereof it was Resolved to grant them that the Commons agreed to the Conference formerly desired At which the Lords declared that they had considered of the Presidents and Reasons formerly sent them by the Commons but were not satisfied to secure the Earl of Clarendon or to Sequester him from Parliament untill some special Treason be Assigned Novem. ●8 The Commons sent to the Lords to desire a free Conference upon the Matter of the last Conference To which the Lords Concurring Mr. Vaugh. Sir Rob. How Sir Tho. Litt. and others were appointed to manage it who went up immediately to that end Mr. Vaugh. Made Report of the Conference with the Lords yesterday to the purpose following The Lords told us That no President can be against the Law We Answer'd If that can be made good we shall press Presidents no more but what they most stood upon was the Petition of Right where 't is provided that none shall be Committed without special Cause whereby the Party may Answer 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 Case of the Petition of Right rightly Stated will clear this which was This Some Persons were Committed by no other Warrant but the King 's special Command they bring their Habeas Corpus to the Kings-Bench to know the Cause This Cause was returned by the Judges that they could not Bail a Man when so Committed because they knew not the Cause 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 returned that the Party is Imprisoned for Treason the Judges ought to Remand unless there be some special Cause to make them take Bail So that the Petition of Right was against them for they say a Man ought not to be Imprisoned upon a general Charge because 't is against the Petition of Right We say it is not against the Petition of Right because the Judge may Remand the Party if there be no special Cause Then the Lords said That the Reason why the Iudges Remanded in that Case was because the Party Committed knew it was for Treason 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 supposed to be acquainted with it so also is he with the probability upon the Proof But the Lords insist not now upon that but specifie Treason and if the Course of Parliaments so much varied in such Cases that was no concluding Proof why they should have special Treason And for the other part That upon the Return there should be a Cause Returned that so the Party might Answer for when a Return is made if the Cause be such as that the Party ought not to be Imprisoned 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 Answered That as good Laws were made before in and after that time as any other and if the Lords then might make such Laws we could not see why it should be a good time to make Laws and no good time to Administer to Persons 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 Case 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 strange that in the Parliament-House there should be such a Consternation as to make their Proceedings invalid when in other Courts there were none Besides in Holland of many Years there was a constant Scene for War and can we imagine that there was not Justice done at that time Then they pressed 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 Answered it could not be unless Cause was shewed We Replyed This was a President like that a Man was Committed because he was Committed for there was no Allegation of Treason Second

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

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