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-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-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
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-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-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-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-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-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-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-Common-Law because there can be no Treason where there is no way to Judge it which is not at common-Common-Law Mr. Vaugh. When the Law is made uncertain the Lords must declare it it appears there were Treasons at common-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
Article accordingly Mr. Vaugh. What is Moved is to put you upon an impossible Business for an Article presented from the Parliament needs not that Certainty as if it were to be tryed at the Kings-Bench Sir Tho. Litt. It is not for the Honour of this House to recede so easily from such a Priviledge for besides the Earl of Straffords Case we have express Presidents for but none against us We have heard that we must have no more Impeachments because they are dangerous and tend to Rebellion Consider the Arch-Bishop of Canterbury's Case Finch Ratcliff and others in the Long Parliament and we should not so easily part with them William Delapool being commonly reported to be no true Man which is a less Charge than Treason desired he might acquit himself and the Lords required no special Matter before they imprison'd him and afterward he was accused more Specially Sir Rob. Atk. In the Case of Anselm Arch-Bishop of Cant. the Commons Accused him but the Lords did not Commit him and gave no other Reason for it but that he was a great Man and yet afterwards he was Condemned as a Traitor tho' the King reduced his Punishment only to be Banishment Tho' a Priviledge is much spoken of yet I shall never be fond of any Priviledge which shall Intrench upon my Liberty as a Subject Mr. Vaugh. I hear it Objected That as you Charge a Lord generally so may the Lords a Commoner but that cannot be for the Lords cannot cause a Commoner to be Committed tho' for Treason without your consent Therefore put a Question whether a Committee shall be named to draw up Reasons to justifie what you have done Resolved That the Question shall be put Resolved That a Committee shall draw Reasons November 18. The Committee brought in their Reasons First What can or ought to be done by either House of Parliament is best known by the Customes and Proceeding of Parliament in former times And it doth appear by Example that by the Course of Parliaments the Lords have Committed such Persons as have been generally Charged by the House Commons for High Treason to safe Custody tho' the particular Treason hath not been specified at the time of such Charge Second That a Commitment for High Treason in general is a Legal Commitment and if the Party so Committed bring his Habeas Corpus and the Cause of his Commitment thereupon be returned for High Treason generally he may lawfully be remanded to prison by the Judges upon that Return Third If before securing the Person the special matter of the Treason should be Alledged it would be a ready course that all Complices in the Treason might make their Escape or quicken the execution of the Treason intended to secure themselves the better there Fourth If the House of Peers should require the particular Treason to be Assigned before the Party Charged be secured they leave the Common uncertain and doubtful and that from time to time how particular they must make their Charge to their Lordships satisfaction before the Offenders be put under any restraint Fifth The Commons conceive that if they should desire the Lords to secure a Stranger or Native Commoner upon suspition of Treason which the Commons had of him and which was by them under Examination to be Evidenced to their Lordship in due time their Lordships in Justice for the safety of the king and People would secure such Person or Persons upon the desire of the Commons and in such Case there would be no difference between a Lord and a Commoner so desired to be secured Sixth The Proceedings of inferior Courts between the King and the Subject or Subject and Subject and the discretion of Judges in such Courts is bounded and limited by the discretion of the Parliament which trust them and 't is not left to the discretion of the Judges in ordinary Jurisdiction to give the King or take from him inconvenient Power for the Subject nor to dispence the Law partially between Subject and Subject for Malice or Affection but the discretion of the Parliament which is the whole Publick comprehending the King Lords and Commons for the Kings presence is supposed to be in the Lords House is and ought to be unconsin'd for the safety and preservation of the whole which is it self It cannot be malicious to a part of it self nor affect more Power than already it hath which is absolute over it self and part and may therefore do for preservation of it self whatsoever is not repugnant to natural Justice Mr. Prynn I like not the first Reason because it cannot be called a Custom where only one Parliament hath done it Mr. Swinf The great strength lies upon this first Reason and is like to be a President for exact Presidents I find none except that of Michael Delapool and in the Long Parliament But consider the reason why there was no express President before and what was the Custom of Parliaments before The Parliament was wont to proceed formerly by Bill and thus that proceeding makes against the Lords now and for committing the Party accused for then the proceedings upon Treason were by Common-Law and because the Judges could not proceed therefore the Paliment went by Bill and it cannot be supposed that the Parties were at liberty all that while Second Third Fourth and Fifth Reasons Voted Sixth Read Mr. Solicit I am against this Reason not as a Reason but unnecessary for if the former Reasons satisfie not this will not because it supposeth things not in question Our Debate must at last end in this Question betwixt Priviledge of Parliament and former proceedings and there being no priviledge in Case of Treason why should not former proceedings Sway Except we call that Treason which is not for otherwise no Priviledge will help Therefore add this to your Reason That there is no priviledge for Treason and the Lords ought not to think that the Commons will call that Treason which is not or if they do the Lords may by a speedy Trial determine it Resolved That a Conference be desired with the Lords and the Reasons carryed up November 21. The Lords sent down to desire a Conference about the Subject matter of the last Conference But the Commons doubting that if they should consent to it the Lords might afterwards refuse a Free Conference because the business in dispute concerns Judicature which belongs to the Lords and so the Impeachment generally falls Resolved To send an Answer by Messengers of their own and accordingly did with Order to acquaint the Lords how far they had proceeded and they expected they should rather haue desired a free Conference November 23. The Debate about the freedom of Speech in Parliament was resumed And the Report Read of Proceedings abut Sir Iohn Elliot Mr. Holles c. 5 Car. 1. Mr. Solic If you are satisfied that the Judgment passed upon them was Illegal two ways you have to be safe by taking notice of that Judgment giving your
President was 38 Hen. 8. against Lord Stanhope the Commons moved the King to Imprison him and the King Answered he would consider of it We Answered That was no denyal but a thing usual with the King and that Motion was to the King himself which differs from this Case for that was not alledged to be Treason Besides had it been Treason it was against the King himself and being an Offence against himself he might if he would not Imprison because he may discharge a Man or pardon him tho' for Treason but this Case is not so because the Lords Justice is but Ministred to the King 21 R. 2 Arundell Arch-Bishop of Canterbury who as they said was Impeached of Treason but not Committed Answer The Case was this There was a Commission Issued out by Ric. 2. That that Bishop and others should regulate what was amiss by evil Government and the King was offended at the granting of it and at Nottingham sent for the Judges and charged them upon their Allegiance to give true Answer to what Questions he should ask them and the first Question was Whether that Commission so granted was not inva ding his Prerogative They Answered Yes Then he asked how they ought to be punished who procured it They Answered as Traitors In the 21 the Bishop is charged by the Commons and the Treason alledged is That he had procured himself to be put into the Commission This being the Case we said That if a Fact be called Treason which afterwards appears to be none there could be no Commitment for if a Man call another Mans coming into his Ground Treason it falls of it self therefore the Bishop was not Committed The Lords said farther That all those Articles were declared to be Treason which before could not possibly be Treason to Commit a Man because the Nature of them must be Treason at common-Common-Law and till these Treasons were declared which was not till 21 Ed. 3. they were not Treason so as to Imprison or Try any Man for them We Reply'd All that Parliament was Repealed yet the President was the more Authentic But I think that Lord it was the Earl of B â— understood not what he said at least I did not Then about the Earl of Strafford's President the Lords said that the very Impeachment was taken away by the Act of this Parliament because the Impeachment is recited in it Namely Whereas the Earl of Strafford was Impeached c. But every Clause in that Act of Attainder is taken away now therefore the Impeachment and you cannot make use of any part of it We Replyed it 's true the Act of Attainder is taken away but the very Act of Repeal doth recite that very Clause whereas Thomas Earl of Strafford was Impeached c. and the Act cannot take away any thing which strengthens its own Supposition Then the Lords said That they should be willing to comply with the Commons but that they must be tender of their own Judicial Proceedings Commons It s true they ought and we supposed that the Lords might be jealous that we should Intrench on their Power but the Commons were so far from that that they thought the Judicial Power better lodg'd with them then in the Commons themselves could be but we would open the Objection Their Lordships being the Judges in this Case might think that for the Commons to take upon them to know what was Treason would be an assuming to themselves what was only proper to the Lords and that it was so now in Charging the Earl of Clarendon generally Lords The Objection is right Commons For our knowing Treason we have many among us who are Justices of Peace trusted by Law to know and Commit and if the Parliament be not Sitting even to Commit a Peer himself for Treason and the knowing what is Treason is so far from being improper to the House of Commons That every Man in the Nation is bound to know it for was it ever known that Ignorance of the Law could ever excuse a Man from breaking the Law Laws are made to be known by Subjects especially those which concern the King and unless they could find a Reason why the Parliment Embodyed should be more ignorant than particular Persons the present Case must be clear That the Jealousie of the Lords arose from a Fallacy thus The Lords have Judicial Power concerning Treason and mnst of necessity know in the Common have no Judicial Power over it therefore cannot know it that is because the Commons know what Law is therefore they have Judicial Power over Law To this was not any thing Replyed Farther We said that because they insisted upon to specifie Treason because by Committing upon a general they might wrong the Party by Committing him without Cause and because they themselves were not informed in their Consciences what they did They would do well to consider the many Inconveniencies which might follow if the Charge of Treason was not general but particular and suppose it was Special their Lordships would know no more by it For suppose a Man Impeached for Counterfeiting the Great Seal which is express Treason and he may be Impeached for it yet neither their Lordships nor the Party could have any advantage by that Specification because there might be as many Questions what is Counterfeiting the Great Seal or what is Treason For Instance One Leak a Clerk in Chancery intending to Forge a Patent puts together two pieces of Parchment and had fitted them and put them together with Mouth-Glew that they appear'd as one Then a Grant was written upon the outmost and a Seal affix'd so that the Great Seal is put to a true Thing then he cuts off the edges of the Parchment so as to sever them takes off the written One and leaves the Seal on the Blank then Forgeth the Grant and makes use of it This was questioned before the Judges whether 't was Treason or not that is whether Counterfeiting the Great Seal or not If it were it was Treason otherwise not They Resolved it was not Counterfeiting the Great Seal and so not but Misprison And if it had been Treason they Resolved that an Indictment had been enough to Impeach him Then suppose you have such an Impeachment before you for Counterfeiting the Great Seal you have Special Treason and Imprison him but when it is brought to Question it appears not to be Treason therefore he is wrong Imprisoned And if your Lordships will examine what knowledg you have of this Fact you have no more then if it had been a general Treason Lords There is a Case put there as we are content to take a Special Treason but expect not the Proof as there it was Commons If it were a Case put so is your Lordships Reply for it was put ex Concesso because you agreed that if the Treason was Special the Party was to be Committed and this Case was to show their Lordships they were in no better
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-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-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-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
be inflicted in such Case which is Fine and Ransom with Imprisonment and it limits a time and manner of Prosecution There was an Objection made yesterday upon the 25 E. 3. That this being in Parliament the King and Parliament had Power to declare Treason and then we ought to have delivered our Opinions with a qualification unless it be declared Treason by Parliament where this Charge is depending to this I Answer'd 1. 'T is not Treason in praesenti and if such a Declaration should be non constat whether it would relate to the time past Secondly That I conceived that the Statute as touching that Declaratory Power extended but to such Cases as were clearly Felony as Single Acts if not Treason the words being Whether it be Treason or other Felony but in respect of the doubts of Escheats which if Treason belonged to the King if Felony to the Lords of the fee it was left to the Parliament I did not say we Resolved the Point Thirdly That admitting the Declaratory Power did extend to other Cases than such as were before the Judges and was not taken away by 1 M. Cap. or any other Statute yet I read my Lord Cooks Opinion at large Pl. Cor. Fol. 22. That this Declaration must be by the King Lords and Commons and by any two of them alone and we were now in a judicial way before the House of Peers only and I did affirm as clear Law that by this judicial way no Treason could be declared nor adjudged but as were expresly within the Letter of the 25 E. 3. and said That Statute 25 E. 3. was a second Magna Charta and that their Ancestors thought it their greatest Security to narrow and not to enlarge Treason and Cited 1 H. 4. Cap. 10. to which in the Parliament Roll is added Rot. No. 17. it coming of the King's Free-grace That the Lords did much rejoyce and humbly thank the King And I read the Statute 1 M. Cap. 1. That the now Earl of Bristol in my Lord of Sraffords Case was the great Assertor of the Law against Constructive and Accumulativë Treason which if admitted their Lordships could better suggest unto themselves than I exprest how great a Door they would let open to other Inconveniencies and Mischiefs to the Peerage I concluded with reading the Act 14 Car. 2. for Reversing the Attainder of the Earl of Strafford the first part whereof I read to them wherein is expressed That they who Condemned him did purposely make an Act of Parliament to Condemn him upon an Accumulative Treason none of the pretended Crimes being Treason a-part and so could not be in the whole if they had been proved After I had spoken to this effect the Earl of Bristol seemed to acquiesce insomuch as concerned our Opinions as the Case was delivered to us but it being to be put to the Question whether the Lords did Concur with the Judges Opinions and himself being concerned in the Illative that therefore the Charge was Illegal and Irregular yet not being intended by him as he said as a Charge but an Information he desired tho' as the Case was put to us it was a good Inference that the Voting of that might be spared till it was Resolved by the Lords whether he delivered it in as a Charge or only as an Information for the Matter of the Charge if it should be thought fit for their Lordships to proceed in it After some Debate upon the Question the Lords Resolved the same Day according to our Opinions First That a Charge of High-Treason cannot by the Laws and Statutes of this Realm be originally Exhibited by one Peer against another unto the House of Peers Secondly That in these Articles if the Matters alledged in them were admitted to be true there is no Treason in them and because the Lords unanimously Concurred in them my Lord of Bristol freely 〈◊〉 〈◊〉 any other it was by order entred that these Votes were Nemine Con 〈…〉 Note That in Judge Hattons Reports Fol. the Resolution of the Judges is expressed to be That a Peer cannot be Impeached but by Indictment and Mr. Rushworth in his Collections Fol. 272. expresses such an Opinion to be delivered by the Judges in 1 or 2 Car. but upon search it was found to be entred in the Journal of Parliament of that time but it was cautions referring to the Common-Law only But that for Proceedings in Parlitament did not belong to them to Determine or to that effect but no mention of 1 H. 4. Cap. 14. It hath been credibly reported that some of the Judges in my Lord of Strafford's Case being asked some Questions did with the like Caution deliver their Opinions and did speak with Reservaions as the Case is put tho' they upon Hearing did know the Case mis-put which after troubled the Conscience of one of them ut audivi being a grave learned Man Vide Peacocks Case Cook Fol. But we having the Case referred to us in Parliament upon Articles Exhibited in Parliament did Resolve to deliver our Opinions without any such Reservation and the Act of 1 H. 4. being exprest against Appeals in Parliament and of Acts of Parliaments after they are once made none under the King and without him are Interpreters but the Judges See Kings Answer Printed in the old Print of 3 Car. 3. at the end of the Petition And therefore did deliver these Opinions which I conceive of great Benefit to the Lords themselves and a just ground for farther enquiry to be made whether such Impeachments may be in the House of Peers for other Misdemeanours without the King's leave or being Exhibited by his Attorney And secondly to take into Consideration the Validity of Impeachments of Treason by the House of Commons notwithstanding the late Presidents which yet ended in a Bill and so in the Legislative not Judiciary Way FINIS
of those that told them yet you do not Sir Tho. Litt. A Question should be put Whether this House hath sufficient inducement to Impeach Afterwards Consider what the Title shall be then appoint a Committee to frame Articles Which Question being put was carryed in the Affirmative Then Adjourned November 9. The First Article read Sir Iohn Goodr. Treason ought to terminate in an Overt-Act which designing is not therefore pray read the Statutes Thereupon sundry Statutes were read 25 Ed. 3. 1 Hen. 4. Cap. 10. 1 Ed. 6. Cap. 12. 1 Q. Ma. 13. Car. 2d 14 Car. 2d Cap. 29. Mr. Stew. Declared it to be transcendant Misdemeanour but no Treason Mr. Vaugh. Two Questions will be considered One whether what 's Charged in the Article was Treason in Common-Law before the 25 Ed. 3. That so we may understand the nature of Treason The other Whether by any subsequent Act it is made otherwise Mr. Wall The Advice given to the King I look upon to be this To establish a New Government To be Govern'd by Ianizaries instead of a Parliament To have a Divan and a great Minister of State a Vizier-Bassau a worse Plot than that of the 5th of November There if the Lords and Commons had been destroyed there would have been Succession but here both had been destroyed for ever Then in order to the Debate consider how the Law looks on it for tho' we may accuse on less Evidence than she may Judge yet we must be Cautious in naming the Crime What therefore doth the Law call this before 25 Ed. 3 Then look whether the power of Constructive Treason be taken away since Sir Fra. Goodr. The matter concerns Life therefore we should be wary in the Exercise of Legislative Power you are not tyed to Rules but you are now a step towards Judicature The Common-Law is Ius non Scriptum and tho' every Treason includes Felony yet not every Felony Treason 25 Ed. 3. There is a Declaratory Power whether a thing be Treason or other Felony not whether it be Treason and could not be declared Treason if not Felony before In Cases Capital at Common-Law they might declare it Treason but in Cases not Capital at Common-Law they never exercised their Declaratory Power Among other things that Statute declares false Coin'd Money to be Treason which is but Felony at common-Common-Law afterwards Money being imported which was not according to the Stamp there was no Punishment for it but as a Misdemeanour Therefore 4. Hen. 7. Provision is made against that Practice and it is made Treason but if the Parliaments Declaratory-Power could have Made it Treason what needed a Statute on purpose So that I cannot think the Article before you is Treason it not coming within the words of the Statute Mr. Vaugh. I shall speak to the first Question whether this Article was Treason at Common-Law and first remove what some have asserted Namely That nothing is Treason but what was Felony before 25 Ed. 3. where petty Treason is spoken of the Wife killing the Husband ' c. These words follow If hereafter it come into Question whether there be another Treason it shall not be resolved by the Judges till the Parliament determine it For in petty Treason if it be Treason it must be Felony because there is killing Then comes more whether raising c. and it follows whether it be Felony or Trespass And the thing it self is more strange None ever doubted but that all Treasons of 25. Ed. 3. was Treason before and was so resolved 12 Q Eliz. That by that Act the King declares what should be Treason Namely If any Man Vitiates the King's Eldest Daughter c. But by this Doctrine if it were not Treason what was it Either Adultry or Fornication when it is only the Eldest Daughter not the Youngest It hath been in all Ages a Reputation to Persons who have been Councellors to Princes according to Emergencies to give Council to extricate out of danger and therefore hard to tax a Minister of State in a Case which he acquaints his Master with for there can be no Treason but against the King himself I will shew you what I mean It is true this is a Treason which cannot arise from Misprision because it was spoke to the King himself but as a Minister of State he has liberty to give Councel for the King's safety If a Person be able to Inform his Master what Alliances are good for him it his duty so what Trades are profitable what not c. So where Men or Money are wanting to advise how to extricate is commendable but when it comes to this that he breaks in upon the Laws invading the Contract between the King and his Subjects it will be as if a Man adviseth That if the King wants Money he may set up High-way Men to take it and bring it to him and so the skilfullest for breaking the Law shall be esteemed the best Councellor therefore whoever thinks to serve his Prince by breaking the Laws he is so far from a wise Man that he is the highest Criminal c. then for the Nature of the thing the Treasons declared 2â— Ed. 3. were declared by the King's Commission and the Treasons were of that Nature which concern'd Councel c. they were not like to be declared and there is a passage in Glanvil called Seductio Domini Regis that is deceiving the King to what is pernicious to Him and his People Now see the Nature of this Crime if a Man Councel his Prince and practice it such a way as shall render him Prince of Conscience who hath broken his Oath and all this to his Injury so that he hath no Assent to it Compare this with any Treason of 25 Ed. 3. consider it Here is a person who gives the King Advice which at once must make his People see he hath broken all his Faith to his Kingdom and is not the Counce of Governing by an Army such all the Laws broken to keep which the King has Sworn and this the King put upon tho' not inclin'd to I assert not this upon the Earl of Clarendon but upon the Article who doth this Councels the highest Treason against the common-Common-Law because others are so but if a Man will pretend to give Councel wherein many shall have no benefit by the Law he breaks all parts and therefore I think this Councel was Treason at Common-Law Mr. Colem The Question is Whether it be in your Power to declare this Article Treason by 25 Ed. 3. If he advised an Army against the King's consent it is against the Statute but I suppose that the Expression in the Article was Advice to the King in Aid of his Government Your Enacting Power is a kind of Omnipotency but in a Declaratory Power you can declare no more than is committed to you and with safety to the Subject you cannot declare this Treason Then what must be our Rule in Declaring I dare
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-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
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
to the payment of which his Majesty was not in strictness bound And afterwards received great Summs of Money for procuring the same VI. That he received great Summs of Money from the Company of Vintners or some of them or their Agents for Inhauncing the Prizes of Wines and for freeing them from the payment of legal Penalties which they had incurred VII That he hath in a short time gained to himself a greater Estate than can be imagined to be gained lawfully in so short a time and contrary to his Oath he hath procured several Grants under the Seal from His Majesty to himself and Relations of several of His Majesty's Lands Hereditaments and Leases to the disprofit of His Majesty VIII That he hath Introduced an Arbitrary Government in His Majesty's Forreign Plantations and hath caused such as complained thereof before His Majesty and Councel to be long Imprisoned for so doing IX That he did reject and frustrate a Proposal and Vndertaking approved by His Majesty for the preservation of Mevis and St. Christophers and reducing the French Plantations to his Majesty's Obedience after the Commissions were drawn for that purpose which was the occasion of our great Losses and Damage in those Parts X. That he held Correspondence with Cromwell and his Complices when he was in Parts beyond the Seas attending His Majesty and thereby adhered to the King's Enemies XI That he advised and effected the Sale of Dunkirk to he French King being part of His Majesty's Dominions together with the Ammunitions Attillery and all sorts of Stores there and for no greater value than the said Ammunitions Artillery and Stores were worth XII That the said Earl did unduely cause Hii Majesty's Letters Patents under the Great Seal of England to one Dr. Crowther to be alter'd and the Enrolement thereof to be unduly rased XIII That he hath in an Arbitrary way examined and drawn into question divers of His Majesty's Subjects concerning their Lands Tenements Goods Chattells and Properties determined thereof at the Council Table and stopped Proceedings at Law by Order of the Councel-Table and threatned some that pleaded the Statute of 17 Car. 1. XIV That he hath caused Quo Warranto's to be issued out against most of the Corporations of England immediately after their Charters were Confirmed by Act of Parliament to the intent he might require great Summs of Money of them for renewing their Charters which when they complyed withal he caused the said Quo Warranto's to be Discharged and Prosecution therein to cease XV. That he procured the Bills of Settlement of Ireland and received great Summs of Money for the same in most corrupt and unlawful manner XVI That he hath deluded and betrayed His Majesty and the Nation in all Forreign Treaties and Negotiations relating to the late War and betrayed and discovered His Majesty's secret Councils to his Enemies XVII That he was a principal Author of that fatal council of dividing the Fleet about June 1666. The Clerk having read them a second time it was moved That in regard the Articles were many they might be referr'd to the Committee to see how far they were true because Fame is too slender a ground to bring a Man upon the Stage Sir Fran. Goodr. Seconds it because new matter was now added to what was formerly charged Viva voce in the House Sir Rob. How Suppose the Earl of Clarendom Innocent and yet Charged and Imprisoned which is the worst of the Case he afterwards appears Innocent and is discharged receiving no more hurt than other Subjects have done Namely * D. Buck. one great Man lately Object But why should you Commit him Answ. For proof whether the Articles be true or not Suppose Men for self preservation will not venture to come not knowing how they may trust themselves and so you have no Proof He very guilty and You not able to proceed is the Inconveniency greater for an Innocent Person if he prove so to suffer a few days than for you to loose your Repuation for ever If this Man be not brought to his Tryal it may force him to fly to that which he Councelled that is that we may never have Parliament more Sir Fra. Goodr. I am not against proceeding but unsatisfied to do it without Witness it being like Swearing in Verbo Magistri Sir Iohn Holl. That the Committee undertake to make good the Charge otherwise examine Witnesses Mr. Vaugh. You admit the Accusation to be matter for a Charge if the Committee find proof if you intend to make this a distinct Case I leave it to you but if this be to settle the Course of the Proceedings of the House I am against it for this is ordering a way of Proceeding in the Earl of Clarendon's Case which shall not be a general Rule Tho' I cannot say one of the Articles to be true yet I know them to be a full Charge if made good and you are prescribing a Course neither proper nor ever practised A Witness who speaks without Outh is subject to Damage not so upon Oath because the Law compells him And whereas it hath been said if Witnesses attest before the House of Commons what Judges dare middle in 't I answer such Judges as meddled in the Case of Sir Iohn Elliot c. and the Ship Money Sir Rich. Temp. A Grand Jury is capable to present upon their own knowledge and are Sworn to keep the King's Council and their own and I believe there is not one Article of the Accusation but will be made good Sir Rob. How As I am sensible of the danger of publishing Witnesses beforehand so I would have every one satisfied therefore take the Articles one by one and according as you shall find what your Members may say for the Truth you may be induced to proceed or not Sir Tho. Osb. The House ought to have something to induce their belief which they have had from several Members and I know how some will be made good Sir Tho. Littl. What Article Members of the House do not offer you matter to induce you to believe you may lay it aside therefore hear what shall be said and proceed accordingly Mr. Iohn Tr. You connot expect Witnesses will appear before you Lords will not nor can you expect Commoners should for when you are up and gone nothing can protect a Commoner if this Information be not Judicial At last the Question was put whether to refer it to a Committee Yeas 128. Noes 194. 322. Then the first Article was read to see what would be said to induce the House to Impeach The First Article read Sir Rob. How Lord Vaugh. Heard from Persons of Quality That it would be proved The Second Article was read Lord St. Ioh. Persons of great Quality have assured him to make it good and if they perform not he will acquaint the House who they are The Third Article read Mr. Ed. Seym. Sufficient Persons will make it good with this Addition When he received
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-Common-Law or Act of Parliament what is an Act of Parliament may be Repealed by Parliament what is common-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. â—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
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-Common-Law Mr. Vaugh. Those Words were purposely put in because at the free Conserence when we pressed
the Affections of His Majesty's Subjects from him by venting in his own Discourse and by the Speeches of his nearest Relations and Emissaries opprobrious Scandals against His Majesty's Person and course of Life such as are not fit to be mentioned unless necessity in the way of Proof shall require it That he hath traiterously endeavoured to Alienate the Affections of his Highness the Duke of York from His Majesty by suggesting unto him Iealousies as far as in him lay and publishing abroad by his Emissaries that His Majesty intended to Legitimate the D. of Monmouth That he hath Wickedly and Maliciously contrary to the Duty of a Privy-Councellour of England and contrary to the perpetual and most important Interest of this Nation perswaded His Majesty against the Advice of the Lord General to withdraw the English Garrisons out of Scotland and to demolish all the Forts built there at so vast a Charge to this Kingdom That His Majesty having been graciously pleased to communicate the Desires of the Parliament of Scotland for the remove of the laid Garrisons to the Parliament of England and to act their Advice therein the said Earl of Clarendon not only perswaded His Majesty actually to remove those Garrisons without expecting the Advice of his Parliament of England concerning it but did by Menaces of His Majasty's displeasure deter several Members of Parliament from moving the House as they intended to enter upon consideration of that Matter That he had Traiterously and Maliciously endeavoured to Alienate His Majesty's Affections and Esteem from this his Parliament by telling His Majesty that there was never so weak and inconsiderable a House of Lords nor never so weak and so heady a House of Commons or words to that effect and particularly that it was better to sell Dunkirk than to be at their Mercy for want of Money or words to that effect That he hath Wickedly and Maliciously contrary to his Duty of Counsellour and to a known Law made last Sessions by which Money was given and particularly applyed for the maintaining of Dunkirk advised and effected the Sale of the same to the French King That he hath contrary to Law enriched himself and his Treasures by the Sale of Offices That contrary to his Duty he hath wickedly and corruptly Converted to his own use great and vast Summs of publick Money raised in Ireland by way of Subsidy private and publick Benevolences and otherwise given and intended to desray the Charge of Government in that Kingdom By which means a supernumerary and disaffected Army hath been kept up there for want of Money to pay them off occasioned it seems to be because of the late and present Distempers of that Kingdom That having arrogated to himself a supream Direction of all His Majesty's Affairs be hath with a malicious and corrupt Intention prevailed to have His Majesty's Customs Farmed at a far lower Rate than others do offer and that by Persons with some of whom he goes a share in that and other parts of Money resulting from His Majesty's Revenue July 10th 1663. BRISTOL The Earl of Bristol having Exhibited against the Lord Chancellour Articles of High-Treason and other Misdemeanours This Order was made by the House of Peers Die Veneris 10 July 1663. ORDERED by the Lords Spiritual and Temporal in Parliament Assembled That a Copy of the Articles or Charge of High-Treason Exhibited this Day by the Earl of Bristol against the Lord Chancellour be delivered to the Lord Chief-Iustice who with all the rest of the Judges are to consider whether the said Charge hath been brought in regularly and legally and whether it may be proceeded in and how and whether there be any Treason in it or no and make Report thereof to this House on Monday next if they can or else as soon after as possibly they may Whereupon all the Judges met at Serjeauts-Inn in Fleet-street and my Lord of Bristol repaired to us thither desiring to see the Order which being Read he told us he came out of respect to know of us whether we were informed how it came into the House of Peers whether as a Charge or not but one of the Judges who had been present when it was delivered in saying we were tied up by our Order his Lordship took some exception at the manner of his Expression as if his Lordships Address was unnecessary at that time anb taking it as a rebuke unto him went away but according to our Order which supposed it to be a Charge of High-Treason and not mentioning Misdemeanour we did upon Consideration unanimously agree upon this ensuing Answer which on Monday the 13th of Iuly the Lord Chief-Iustice Foster did deliver in viz. We conceive that a Charge of High-Treason cannot by the Laws and Statutes of this Realm be originally Exhibited by one Peer against another unto the House of Peers and that therefore a Charge of High-Treason by the Earl of Bristol against the Lord Chancellour mentioned in the Order of Reference to us of the 10th of this Instant July hath not been regularly and legally brought in and if the Matters alledged in the said Charge were admitted to be true altho' alledged to be traiterously done yet there is no Treason in it Which Answer being given in the Earl of Bristol took some exceptions at it and some of the Lords inferred thence that if it were Irregularly and Illegally brought in it was a Libel but we satisfied them that it was not under Consideration of us whether it came in as an Information or Charge our Order required us to give Answer to it as a Charge Secondly We did not meddle with any thing concerning accusing him of Misdemeanour for our Order reached only to Treason Thirdly It did not follow that if this Charge were Irregular or Illegal that therefore he was Criminal There might be Presidents to give Colour to such kind of Proceedings for which till it be declared or known that they are Illegal they are Titular and ought not to be punished But it was much insisted on That we should deliver the Reason of our Opinions the Lord of Bristol and his Friends seeming unsatisfied We Replyed That it was never known that when the Justices to whom Questions were referred from Parliament had unanimously agreed in their Opinions that Reasons were required from them Yet notwithstanding it being the desire of the Lords after some things premised and a desire that this should not be drawn into an Example which the Lords assented unto as I took it for no Order was entred concerning it there being no Order as I think for delivering our Reasons entred and it was agreed amongst us that no Note should be reduced least we might be required to deliver our Reasons in writing nor had I time to digest it in writing having only Monday Night after Conference with my Brethren to think upon it I did on the next Tuesday being the 14th of Iuly deliver the Reasons of all the Judges of their
What if he hath Life in other Parts his Family Untainted and his Children alive and enjoy his Estate Sir Rob. Carr. You have Ordered to consider the Reasons from the Lords therefore do it Mr. Hen. Covent The Motion to read the Bill is not against your Order because part of the Reasons given by the Lords is That you have a Bill and till you have read the Bill you cannot lay by the Reasons The Earl of Clarendon is fled you have a tye upon him in having his Innocent Relations and by Proceeding farther you make him desperate you are now in an even way with the Lords therefore read the Bill Mr. Swins You may go upon the Reasons and yet not reject the Bill for when you sent to the Lords about a Proclamation and went not upon the Bill it was because what the Bill drives at is the highest Punishment next to Death Therefore Consider what weight is in the Reasons One of them seeming to put you upon the Bill they put you thereupon on a Legislative Way they will neither Secure nor Summon him but will Condemn him Unheard They cannot Secure him upon a Charge of Treason nor yet Summon him but they can Condemn him and this they put you upon which is against Honour and Justice especially to do it up on Reason of State The Legislative Power of Parliaments is great it hath no bound but the Integrity and Justice of Parliaments If Reason of State be a Motive of Parliament to Banish one Man so it may be for many If you go in this Legislative way you bring upon your selves all the Dishonour of the Business but the Lords will have some excuse which you cannot for they look'd upon the Charge so flight as not to Imprison him the party is gone because he was not Secured apprehending he saith fear of the Multitude not of his Tryal so that the Lords not giving Credit to your Charge against him he says he flies not from justice Now if upon this Bill you shall Banish him it would be said you could not make good the Charge and therefore laid this Sentence upon him The President is also dangerous if having gone so far in a Judicial Way you should now go in a Legislative If upon Reason of State Lords may be Banished it may be by dozens As you proceed Justly so you will be Justified Nor is the Danger greater if the Lords go by Proclamation and he be put into Custody when he comes if he can practice any Thing will not he be less capable when under the Proclamation than when this Bill is Passed which Condemns him without Hearing and I am not for any Punishment till Heard In Cromwells Case who Moved in Hen. VIII time to Attaint a Lord Unheard the Judges declared they might and it would stand afterward the said Cromwell was Attainted and Condemned Unheard and such Councel usually falls upon those that Councell'd it Sir Rob. How The Earl of Clarendon saith That he doth not withdraw from your Iustice but fear of Tumults but that Reason any Man may give for his flying if it will be an excuse but he might have secured himself from Tumults by rendring himself and his Innocency upon his Tryal would have cleared him This at last may come to a free Conference then you may be left to go along with the King the House riseth and doth nothing and then the World will see that this Business will assure the King of France That he hath a Man with him so Great as to hinder us from doing any Thing against him Therefore as you ought to do something against him see whether it may not be done by the Bill by resuming his Lands c if he come not in by a Day An Exception may be against this way Namely That there is no Attainder but if there had been such a Bill the Thing which should sway me should be the Duke of York's Marriage So that if you Commit this Bill you may add all Severities except that of Attainder and if he come by a Day then all to be void If you go by Proclamation the Lords may not Concur and you loose your Ends. By this Bill all favour that he can expect is shewed and this way will be the best Confutation of the Lords Reasons therefore Commit the Bill Mr Secretary Morr I am for Committing the Bill tho' it be condemning Unheard because he could not but conclude it would be so Et volenti non fit Injuria Sir Ric. Temp. You have proceeded against this Earl in all ordinary ways and have been baffled by the Lords In Edward the Third's Reign Adam de Berry fled and a Proclamation went against him and the Commons neither did nor ever were bound to deliver their Articles till the Party appeared and in that Case they delivered not their Articles till the last Day when he not appearing was Convicted When you would go by Attainder they tell you Deliver special Matter and we will Summon him when you ask a Proclamation they tell you Deliver special Matter If you declare the Matter to the Court it is upon Record and all may know it You have tryed all ways Legal and Regular and they will do you Justice in neither Now what can you do except you and the Lords combine in Justice together he must escape and if you can be made to differ he goes away in a Smoak If you go to the King for a Proclamation you must return to the Lords for Justice I am sorry the Ivey hath been so near the Oak that you cannot touch it without touching that There remains a Bill before you and in that you are upon equal Terms with the Lords therefore give him a Day to be Heard and if he come let him but then his Penalties are too low for his Crimes therefore read the Bill go higher degrade him of Honours Forfeit his Lands and whether you will go so far I leave with you Mr. Soll. Gene. It is not possible to agree with the Lords in their Reasons but the Reason must be because the Bill is good But if any Man thinks it is good upon the Lords Reasons he is mistaken and therefore my Advice is to proceed upon the Bill tho' not upon the Reasons from the Lords Some think the Punishment in the Bill too little for the Crime others too much because not Summon'd so that it must fall out That a Person Impeached by the House of Commons must see the House rise without any marks of displeasure upon him Can any Man be Heard who will not be Heard Why should not you proceed in such a way against him as whose very Flight amounts to a Confession And have you not burnt his Paper for refiecting upon the House and can you think he will appear who is departed in despair of the Court and now you are contending to give him time Then consider the Thing in it self Suppose the King had a mind to Attaint
Opinions by their Consents To the first Point That a Charge of High-Treason cannot originally be Exhibited by one Peer against another unto the House of Peers the Emphasis of the word originally was shewed For First an Indictment of Treason against a Peer may be removed up to the Lords House to be tryed as it was in the 31 H. 6. in the Earl of Devonshir's Case but a Steward was then to be made Secondly If an Impeachment came from the House of Commons unto the Lords House we did not take upon us the Consideration whether this could be proceeded in or not for it was not the Case to which we were required to give Answer We Replyed Upon the Statute 1 H. 4. Chap. 14. which recits the many great Inconveniencies and Mischiefs by Appeals and provides that all Appeals of Things within the Realm shall be Tryed and Determined by the good Laws of the Realm made and used in the time of the King 's noble Progenitors and Appeals of Things out of the Realm before the Constable and Marshal But We relyed upon the Clause ensuing and thereupon it is accorded and assented That no Appeals be from thenceforth made or in any wise pursued in Parliament in time to come I shewed Appeals in this Statute and Accusations by single Persons were one and the same Thing and that this Statute reached to all Appeals Charges Accusations or Impeachments delivered in in Parliament whereupon the Person Accused was to be put to his Answer and that they were but several Names of the same Thing I shewed first Historically that the Appeals the 11 R. 2. and 21 R. 2. were but Accusations by those Lords of Felons against the other and differed from the Case of the Duke of Hereford and Norfolk which was to be tryed as 21 R. 2. Pl. Cor. in Parl. No. 19. is by the Course of the Civil Law and thereupon Batle was waged That tho' it concerned H. 4. in Interest to confirm the 11 R. 2. and Repell the 21 R. 2. he being Appellant in the former yet he saw the Mischief so great that he himself made Provision against them for the time to come and indeed the Mischief was so great that it ceased not after the destruction of many Lords and Families there being lex talionis in that 21 R. 2. used towards most of those Appellants in the 11 R. 2. till it tumbled King R. 2. First out of his Throne and then into his Grave That there were but two sorts of Proceedings in Capitalibus the Suit of the Party which was called an Appeal or the Suit of the King who ought to proceed by Indictment and so to Tryal by vertue of Magna Charta Nec super eam ibimus c. and that in an Appeal being the Suit of the Party there was no Prerogative of appearance if it were an Appeal at the Common-Law 10 Ed. 4. Lord Gray's Case That an Appeal was taken in our Law-Books frequently for an accusation by the Party I scited Westm. the 1st Cap. 14. where the words Appeal reaches to Indictment And 9 Cook 119. Lord Zanchar's Case that an Appeal of two significations one general and frequent in our Books for an Accusation and Stamford 142. In Case of an Approver the Felon after Confession may Appeal that is saith he accuse others Coadjutors with him to do the Felony C. C. 189. Appellant cometh from the French word Appeller which signifies to accuse or appeach and C. C. 287. Appel signifieth an Accusation and therefore to Appeal a Man is as much as to accuse and in ancient Books he that doth Appeal a Man is called accusator vide 9 Ed. 2. Articuli Cleri Cap. 16. That I knew no reason why in those tumbling Times of R. 2. which caused this Statute for the Statute-Roll is comant ad autermant este us en temps la darren Roy R. 2. They should proceed by way of Appeal but because they were then allowed at the Suit of the Party to accuse any other of Treason but at the King's Suit there ought to be an indictment and an Indictment could not be found but by Jury That in all other Cases an Appeal was to be brought by the Party concerned the Wife or Heir or Party Robbed c. But in Case of Treason any Man may Appeal another and therefore in all reason it must be understood of an Accusation and any Man might accuse another of Treason and if it can be proved by Witnesses it must not be Tryed by Battle as other Appeals may I concluded that the 8 H. 6. No. 38. this Statute the 1 H. 4. Cap. 14. is recited and desired it should be duely kept and put in Execution which was granted that Stamford 78. See Pl. Cor. 31. 132. agree that Appeals of High-Treasons were not commonly used to be Sued in Parliament till the 1 H. 4. Cap. 14. Since which time this manner of Appeal hath gone out of use and I said I had searched many Presidents and tho' of late there may be a President as it was of the Earl of Bristols Father against the Duke of Buckingham of some kind of Impeachment yet I did confidently believe there was not since that Statute 1 H. 4. Cap. 14. any one President of such an Impeachment at the Party-Suit whereupon there was any Indictment In truth in the Earl of Bristol's Case the Commons's House did Impeach the Duke of Treason and so the Earl of Bristol's Impeachment proceeded not For the Seeond Point That there was no Treason in the Charge tho' the Matters in it are alledged to be Traiterously done I said we had perused each Article Seriatim and we had found no Treason in them the great Charge which is endeavoured to be proved by many Particulars was That he did Traiterously and Maliciously to bring the King into Contempt and with an intent to Alien the Peoples Affections from him say c. Such and such words c. And so it runs on That in pursuance of the Traiterous Intent c. he did c. and that in farther pursuance of the said Traiterous Design c. And in like manner was most of the Articels upon which the Characters of Treason seemed to be fixed I said that it is a transcendant Misprision or offence to endeavour to bring the King into Contempt or to endeavour to Alienate the Peoples Affections from him but yet it was not Treason This Statute 13 Car. 2. Cap. 1. makes Treason during the King's Life But if a Man calls the King Heretick or Papist or that he endeavours to introduce Popery which is more in express Terms than the Article of that kind insinuates or by Words Preaching Prayer to stir up the People to hatred or dislike of the Person of His Majesty or the Established Government the Penalty is only Disability to enjoy any Place Ecclesiastical Civil or Military and subject to such Penalties as by the common-Common-Law or Statute of this Realm may